Court name
HC: Family Division (Uganda)
Judgment date
4 February 2016

Byabwe v Ntulume & Ors (Miscellaneous Application-2015/296) [2016] UGHCFD 2 (04 February 2016);

Cite this case
[2016] UGHCFD 2

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

FAMILY DIVISION

MISCELLANEOUS APPLICATION NO. 296 OF 2015

ARISING FROM CIVIL SUIT NO. 112 OF 2015

BWABYE STANLEY………………………………………..……APPLICANT

VERSUS

  1. FRED NTULUME
  2. PAUL KIRAZA
  3. NAMALIMBA GROWERS
  4. NAKAMYA
  5. JOYCE KOBUSINGYE
  6. KIZULA JOHN………………………..……..…………RESPONDENTS

BEFORE: HON. LADY JUSTICE PERCY NIGHT TUHAISE

RULING

This is an application by chamber summons brought under Order 41 rules 1(a) & 9 of the Civil Procedure Rules (CPR) for orders that a temporary injunction be issued restraining the respondents/defendants, their servants and/or agents, or anyone claiming under them from selling, transferring, mortgaging, disposing of, destroying or otherwise dealing with all the properties forming part of the estate of the late Kyobe Semu, including lands comprised in Block 438 Plots 230, 229, 152, all originating from plot 48), and all the plots there from, until the hearing and final determination of civil suit no 112/2015; and that costs of the application be provided for.

The application is supported by the affidavit of the applicant. It is based on grounds that there is a prima facie case with a likelihood of success by the applicant against the respondents and the same is still pending before this court; that the subject matter of the suit is in danger  of being alienated and/or destroyed by the respondents/defendants and/or their servants/agents; that the applicant/plaintiff will suffer irreparable damage and losses if the respondents/defendants are not restrained until the hearing and determination of the main suit; that the balance of convenience is in favour of the issuance of a temporary injunction order; and that it is in the interests of justice that the status quo be preserved.

The application is opposed by the respondents through the affidavits in reply of the 2nd 3rd and 6th respondents. The applicant and the respondents’ counsel made oral submissions to court following the applicant’s counsel’s failure to file written submissions within the schedules set by this court.

The questions to be determined are whether there is a prima facie case with possibility of success, and whether the applicant might otherwise suffer irreparable damage not easily compensated in damages. If court is in doubt it will decide the question on the balance of convenience. Overall, there should be a pending suit and a status quo to be preserved. See Kiyimba Kaggwa v Haji Katende [1985] HCB 43.

On whether the applicants have established a prima facie case with possibility of success, the applicant has to satisfy court that there is merit in the case. It does not mean that one should succeed. It means the existence of a triable issue or serious questions to be tried which raise a prima facie case for adjudication.

In this case, the pleadings in the main suit reveal the plaintiff to be alleging that the 1st defendant obtained letters of administration to the estate of the late Kyobe Semu using a forged grant which he used to sell and transfer to the other defendants land comprised in Block 438 Plots 230, 229, and 152, all originating from plot 48 (suit land), forming part of the estate of the late Semu Kyobe. The defendants deny the allegations, contending that the 1st defendant rightly obtained the letters of administration and lawfully transferred the suit land, and that the other defendants bought the suit land bona fide for value and without any notice of fraud.

On basis of the pleadings, it is my opinion that there are serious triable issues which raise a prima facie case for adjudication. It is not for this court at this stage to go into the merits of the main suit. This will be done during the hearing of the main suit. I have therefore refrained from addressing the affidavit evidence that alludes to the merits of the main suit.

On whether the applicant will suffer irreparable damage if the application is not allowed, irreparable injury does not mean there may be physical possibility of repairing injury. It means the injury must be substantial or material, not easily atoned for in damages. In determining this, courts look at the evidence on record, the circumstances of the case and the remedy sought.

The applicant avers in paragraph 7 of his supporting affidavit that if the suit land is alienated before the hearing and disposal of civil suit no 112/2015 he and the other beneficiaries in the estate of the late Semu Kyobe will suffer irreparable injury as their land will have irretrievably gone to third parties. The respondents aver in their affidavit in reply that the suit land is already in the possession of the 3rd 4th 5th and 6th respondents.

It is evident from the affidavit evidence of both sides that the suit land comprised in Block 438 Plots 230, 229, and 152, all originating from plot 48, allegedly forming part of the estate of the late Kyobe Sam, has already been alienated from the estate and is already in the possession of the 3rd 4th 5th and 6th respondents. The applicant acknowledges this position in his affidavit in rejoinder. It is redundant therefore for the applicant to claim that the suit land will be alienated from the estate when in fact, it is already alienated. The question of whether or not the alienation of the suit land from the estate was lawful will be determined in the main suit. Besides, the applicant has not adduced any evidence that he will suffer irreparable loss if the injunction is not issued.

The balance of convenience, in the given circumstances, does not favour the applicant, since the suit land has already been alienated from the estate.

In the premises for the given reasons, this application is dismissed with costs.

Dated at Kampala this 4th day of February 2016.

Percy Night Tuhaise

Judge.