IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION NO. 329 OF 2001
(ARISING FROM HCCS 186 OF 2000)
JAMES MUSISI SENKAABA:::::::::::::::: APPLICANT/DEFENDANT
RUTH KALYESUBULA ::::::::::::::::::::RESPONDENT/PLAINTIFF
BEFORE: THE HON. MR. JUSTICE E.S. LUGAYIZI
This ruling is in respect of an application for a temporary injunction. The applicant made the application under Order 37, rules 1 and 2 of the CPR and section 101 of the CPA. The application was accompanied by an affidavit that was sworn by the applicant on 30th May 2001.
The background to the application is very briefly as follows. The applicant and the respondent had for some time been wrangling over the ownership of a customary holding (i.e a kibanja) which is allegedly on Block 303 Nsumbi Ganda. The applicant claimed the said kibanja as his on the basis that his sister who inherited it allowed him to build and live on it. On the other hand, the respondent claimed that she bought the said kibanja from its previous owner. As a result of that misunderstanding, the respondent sued the applicant for trespass under High Court Civil Suit No. 186 of 2000. However, before Court disposed of that suit, the respondent began to build a house on the kibanja and to cultivate it. In turn, the applicant brought this application with a view of obtaining Court’s orders to restrain the respondent from building on the kibanja and cultivating it. At the time of hearing the application, Mr. Arthur Katongole represented the applicant and Mr. Sam Njumba represented the respondent. Both counsels were in disagreement as to whether or not Court should grant the application; and each of them gave his reasons for his stand; and those reasons are on record. Be that as it may, it is now well settled law that before an applicant may be granted a temporary injunction, he has to prove the following things,
1. That the purpose of the temporary injunction is to preserve the status quo until the head suit is finally determined. (See Noor Mohammed Janniohamed v Kassamali Virjx (1953) 20 EACA 80).
2. That the applicant has a prima facie case, which has the probability of success. (See Geilla v Cassman Brown Co. Ltd (1973) E.A. 358).
3. That if the temporary injunction is not granted, the applicant would suffer irreparable injury, which damages cannot atone. (See Noor Mohammed Janmohamed v Kassamali Virji (supra).
4. If Court remains in doubt after considering the above three requirements of the law, it would decide the application on the balance of convenience. (S E.A. Industries v Traffords (1972) E.A. 420).
As court considers the above requirements of the law, it will take into account the evidence before it and the submissions of counsel.
With regard to the first requirement of the law, the affidavit in support of the application contains the following important facts. Firstly, that at present, the applicant owns a house on the kibanja in question. Secondly, that he and his family live there. Thirdly, that after the respondent filed the head suit she began digging and cultivating the kibanja. In court’s opinion, the respondent implicity admitted those facts because she did not file a reply to the applicant’s affidavit to deny or contradict them. (See Cleaver-flume Lrn itish