THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISC. APPLICATION NO. 994 OF 2014
(Arising from Civil Suit No. 485 of 2014)
ABISAGI P. N. SEMAMBO……… …………………………………………………..… APPLICANT
DR. JOHN KAKEMBO …………………………………………...…..…………….... RESPONDENT
BEFORE LADY JUSTICE EVA K. LUSWATA
This is an application by chamber summons presented under Section 33 Judicature Act and Order 41 rules 1, 2 and 9 CPR seeking for orders that a temporary injunction doth issue against the respondent, his assigns, agents, servants or workmen from alienating, taking possession of, interfering with the possession of the applicant’s possession, occupation or development of the suit land comprised in Kibuga Block 8 Plot 332 until disposal of the main suit. In addition, the applicant seeks the costs of the application.
The application was supported by the affidavit of Abisagi Semambo the applicant who in brief stated that she is the administrator of the estate of her late husband Herbert George Nelson Semambo (hereinafter referred to as the deceased), who had before his death, secured a lease from his father, the late Kezekia Matiko Ndagayi Sensalire for a term of 49 years w.e.f. 1/9/65.The lease was registered as Leasehold Register Volume 602 Folio 7. She stated that owing to a dispute over the deceased’s ownership of the lease interest in the suit land, on an unspecified date, the deceased returned the duplicate certificate of title toKezekia Sensalire for verification and it was never returned.Thereby as an administrator, she obtained a special certificate in July 2013. Her complaint is that the respondent who is the administrator of the late Kezekia Sensalire’s estate was preventing her from developing the suit land and had purported to determine the lease in breach of its terms. She thereby filed a suit against the respondent in which she sought inter ali, a orders to confirm that the lease still subsists and in the alternative, relief against forfeiture and a permanent injunction preventing the respondent from breaching the lease terms.
Kakembo Wilson the respondent filed an affidavit in reply to the application in which he conceded to the existence of a lease between the deceased and his late father Kezekia Sensalire. He stated however that the deceased had before his death and by his own free will, surrendered the lease back to Kezekia Sensalire but refused to vacate the suit land. That the applicant had also in defiance continued to occupy the suit land although no fees were paid for a period of over 30 years. He challenged the applicant’s occupation as being an action that prevented him from carrying out his duties as administrator of Kezekia Sensalire’s estate and a deprivation by the applicant of Kezekia Sensalire’s rightful beneficiaries to their entitlement to the suit land. In rejoinder to that affidavit, the applicant clarified that the duplicate certificate of title was never returned to the deceased and he was never advised of the results of an investigation carried by the government in respect of an alleged forgery on the suit land and that all fees in respect of the suit land were paid.
The respondent failed when served to appear for the hearing of this application on 10/12/14 and I did allow exparte proceedings on that date. The respondent’s counsel did not seek leave to file written submissions and as such, those they filed on 27/1/15 will not be considered. None the less, the affidavit in reply which was properly filed will be taken into consideration in my ruling.
Order 41 Rule 1(a) CPR provides grounds to consider before granting a temporary injunction but that notwithstanding, each case must be considered upon its own peculiar facts. In the case of American Cyanamid Co. Vs Ethicon Ltd  AC 396 Lord Diplock laid down guidelines for the grant of temporary injunctions, and they include;
- The applicant has to show that he/she has a prima facie case with a probability of success in the main suit.
- The applicant has to show that he/she is likely to suffer irreparable damage if the injunction is denied.
- If court is in doubt as to the above considerations, it will decide the application on the balance of convenience.
In the case of Godfrey Sekitoleko and others VS Seezi Mutabazi [2001-2005] HCB Volume 3 at 80 the Court of Appeal made the position clear by stating that in addition to the above, an injunctive order is meant to preserve the status quo and protect the interests of the parties before a final decision is made on the issues in the main suit. In this, I found the caption lifted from the same case to be instructive that:-
The court has a duty to protect the interests of the parties pending disposal of the substantive suit. The subject matter of a temporary injunction is the protection of legal rights pending litigation. In exercising its jurisdiction to protect legal rights to property from irreparable or serious damage pending the trial, the court does not determine the legal rights to the property but merely preserves it in its actual condition until the legal title or ownership can be established or declared. (Emphasis mine).
As rightly put by counsel for the applicant, Ms Semambo in her suit, attempts to assert her right, as the administrator of a deceased lessee to enforce the estate’s right to renew the lease and to develop the suit land. The terms of the lease allow her both options and I do agree with her counsel when he quoted the court in American Cynamid Co. Vrs Ethicon Ltd (supra) that “…the claim is not frivolous or vexatious: in other words, there is a serious question to be tried”.
It is also argued that the applicant will suffer irreparable loss if the temporary injunction is denied. The court in Francis Kanyanya Vs Diamond Trust Bank HCCS No. 300 of 2000 relying on Kiyimba Kaggwa Vs Hajji Nassar Katende (1985)HCB 43 stated to the effect that irreparable injury means that the injury must be substantial or a material one, that is, one that cannot be adequately compensated for in damages.
The suit land was described to measure 2.02 acres in Mengo. This is valuable land found near the central district. If I were to allow the respondent to determine the lease or deal in it in any manner before the main suit is determined, the applicant would have lost the land, probably for good and damages would not adequately atone for her finding alternative land that is suitably or equally strategically placed and of equal value. I therefore do agree with counsel for the applicant that the applicant will suffer irreparable loss or damage, if a temporary injunction is not issued.
My findings above are sufficient to convince me that the application has merit. The facts as presented by the applicant merit that her interests are protected until her legal rights in the suit land are determined in the main action.This is because, the lease between the deceased and Kezekia Sensalire is not denied, and it is the applicant who is in possession.In my view, the current status quo ought to be maintained until court has made a decision on whether the lease was surrendered by the deceased or whether; any of the parties to the main suit are in breach of the lease terms.
The above notwithstanding, since there is still a dispute on whether the lease subsists or has been determined, the applicant will not commence with any new developments until the suit is determined.I thereby allow the application with that condition and proceed to grant a temporary injunction against the respondent restraining him, his assigns, servants or workmen from alienating by way of sale, lease, mortgage license or otherwise and from taking possession of, or interfering with the applicant’s possession, occupation and use of, land known as Kibuga Block 8 Plot 332 and comprised in Leasehold Register Volume 602 Folio 7 until disposal of the main suit.
Costs of the application shall abide the outcome of the main suit.
I so order.
EVA K. LUSWATA