IN THE HIGH COURT OF UGANDA AT KAMPALA
HCLDCA NO. 18 OF 2006
RATIBU SHABAN ::::::::::::::::::::::::::: APPELLANT
LUCY MIWANDA :::::::::::::::::::::::::::: RESPONDENT
BEFORE: HON. JUSTICE MARY I.D.E. MAITUM
This is an Appeal from a ruling of the Land Tribunal Misc. Application No. 116/05(Arising from Claim No. 117 of 2005) regarding customary Kibanja at Kasenke III, Naguru, Nakawa Division, Kampala District.
The Appellant had applied for a temporary injunction to the Land Tribunal in Kampala. The land tribunal held that the Appellant had
not made a prima facie case. Warranting the grant of a Temporary injunction hence this appeal.
for the 50 years prior to 1996. He had acquired another portion from Christine Namutebi in May 2003. He prayed Court to restrain
the Respondent from trespassing on the approximately 128 Sq. Metres of his land.
proprietor of Plot 2E Nyonyintono LRV 3126 Folio 19 and that when she acquired the land there were no squatters.
of land claimed by him could adequately be compensated for by the Respondent. The Tribunal further held that the balance of convenience
was weighed in favour of the Respondent who was the registered proprietor.
The Appellant appealed to the High Court in accordance with Rule 56 of the Land Tribunal (Procedure) Rule 5.
The grounds of the Appeal are:
The Land Tribunal erred in law and fact in failing to evaluate the evidence before it and thereby arrived at a wrong decision.
continue construction on the Appellant/s Kibanja to the detriment of the Appellant.
Temporary Injunction. They are:-
The pendency of a suit with a proof of prima facie case with a likelihood of success.
not capable of atonement by compensation.
inconvenienced by the grant of a temporary injunction.
grant a Temporary Injunction.
He submitted that the Tribunal should not have come to that conclusion without hearing the evidence in the main suit.
the tribunal should have known that a Construction on a contested piece of Land would cause irreparable damage to the Applicant.
He further submitted that the tribunal should have decided the matter on the balance of convenience if it had been in doubt.
came to the right conclusion. He contended that the Tribunal had taken into consideration the size of the land under contention and
decided that 129 sq. metres of land could adequately be compensated for.
property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit or sold in execution of
“A suit” implies a suit pending before Court MI5 Muwayire Nakona & Co. Advocates vs. D.A.P Custodian Board (1987) HCB 91.
In the instant case there was claim 117/05 pending before the Tribunal.
In paragraphs 2-6 of his affidavit the Appellant affirmed that he was a customary owner or kibanja holder of land situate in Kasenke
111, Naguru, Nakawa Division, Kampala District. He further affirmed that he had two houses in the said kibanja.
before the Area LC1 Council which after hearing the matter between him and the Respondent ruled in his favour and he erected poles
around the contested 128 sq. metres of his land.
of Title, he discovered that part of his customary kibanja, measuring approximately 128 sq metre had been included in the certificate
of title of the Respondent, comprised in plot 15 Naguru Avenue, 2E Nyonyintono LRV 3126 Folio 19.
physical possession of the property or that the Respondent is occupying it unlawfully''.
kibanja of which the 128 sq metres formed apart.
he was the owner of the 128 Sq Metres erroneously included in the Respondent's certificate of Title. Since both parties were claiming
the same piece of land there were issues which justified the case to be heard on merit.
because he had already been buttressed by the ruling of the LC1 Council that the disputed piece of land belonged to him.
Consequently I hold that the Tribunal neglected to take into consideration the content of the affidavit affirmed by the Appellant.
for determination by a court of law. Unless otherwise provided for in a legal document, the question of ownership of a contested property cannot be determined by affidavits without evidence
provided by both parties in a court of law and each side subjected to cross examination.
One cannot by merely reading affidavits decide that one side has proved its case and the other had not.
By coming to the conclusion cited above, the Tribunal determined the outcome of claim 117/05 without trying the issues in the case.
Concerning proof of irreparable injury, the Tribunal ruled:-
"In the event that the suit is decided in the Claimant's favour any construction on the Suit land which measures approximately
128 sq metres can be adequately compensated for by award of damages"
person. To some one who own lots of square miles of land it might be compensatable to another with a small piece of land the compensation;
much as it may be may not be satisfactory. One might even say that there is no adequate compensation for the loss of land.
In E.L.T. Kijumba-Kaggwa -y- Haii Abdu Nasser Katende: (1985) H.C.B 43, Justice Odoki, as he then was, held as follows:- On the balance of convenience the Tribunal ruled:- For the reasons discussed above, this Appeal is allowed on all grounds. Mary I.D.E. Maitum JUDGE 20/3/2007
"1rreparable injury does not mean that there must not be Physical possibility of repairing injury, but means that the Injury
must be a substantial or a material one, that is, one that cannot be adequately compensated for in damages”
"There was a serious question of ownership of land in question”.
of land owners from their land have led to tragic consequences.
"In view of the Respondents registered interest in the land and the construction taking place therein the amount of inconvenience
that she might be put into if the injunction was granted would be greater than any inconvenience the Applicant might suffer, since
his only stake in the land is the kibanja interest. The balance of convenience is in favour of the Respondent'~
here was that the Respondent had included 128 sq. metres of the Appellant land in her Title Deed.
for 50 years previously. He deponed that the Respondent's land was acquired after his occupation and that it was adjacent to his
own kibanja. On the balance of convenience the person who was on the land before the advent of the Respondent is the one who would
be inconvenient if he is evicted from the land.
Certificate of Title. The Respondent should have involved all the neighbours during the survey of her land. Then the alleged disputed
inclusion of the Appellant's 128 sq metres might not have arisen, and would have been resolved.
The ruling of the Tribunal is hereby set aside.
doing anything inimical to the Appellant's claim to the 128 sq metres of Land, until the disposal of the dispute between the parties
Claim No. 117 of 2005 should be converted into a suit before the Chief Magistrates Court, so that the real issues are determined in
one way or the other. Costs shall abide the out come of the suit to claim 117/05 between the parties.
Anguria holding brief for George Omunyokol, Counsel for the Appellant
Appellant is in Court
Counsel for the Respondent Mr. Matovu is not present
J. Agweto Court Clerk.
On the balance of convenience the Tribunal ruled:-
For the reasons discussed above, this Appeal is allowed on all grounds.
Mary I.D.E. Maitum JUDGE 20/3/2007