Court name
High Court of Uganda
Case number
H.C.Miscellaneous Application 281 of 2017
Judgment date
25 January 2021

Gamuganda and 5 Others v Kubonaku and 4 Others (H.C.Miscellaneous Application 281 of 2017) [2021] UGHC 5 (25 January 2021);

Cite this case
[2021] UGHC 5
Coram
Luswata, J

 

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT JINJA

MISC. APPLICATION NO. 281 OF 2017

(ARISING OUT OF CIVIL SUIT NO. 162 OF 2014)

GAMUGANDA MOSES & 5 ORS…….………......   APPLICANTS

VERSUS

PRISCILA KUBONAKU & 4 ORS ……………..RESPONDENTS

RULING

BEFORE HONOURABLE LADY JUSTICE EVA K. LUSWATA

Brief Facts

The applicants proceeded by chamber summons under Order 41 rules 1 and 9 of the Civil Procedure Rules to seek an order for a temporary injunction against the respondents to restrain them and their agents from demarcating or sale of land measuring approximately 700M by 500M (whose description or location was not given) until disposal of HCCS No. 281 of 2014 (the main suit. They in addition pray for costs of the application.

 

The applicants are the claimants in the main suit. They challenge the sale of the suit land to the respondents and consider their eviction from it, unlawful. They therefore seek to be declared its lawful owners, vacant possession and a permanent injunction against the respondents, general damages and costs of the suit. They claim in particular that the suit land was wrongfully attached in satisfaction of a judgment debt against Grace Ndhokero their mother. In defence to the suit, the 1st and 2nd respondents contend that the attachment was lawful since there was no evidence that Grace Ndhokero ever gave any of the applicants part of her land. That the 2nd respondent purchased his interest from those who brought from the sale by execution against Ndhokero, a sale he considered bonafide.

The main ground of the application is that although the main suit is yet to be determined, the 1st and 2nd respondents have started to demarcate the suit land with intention of selling it. In his affidavit in support of the application, Gamuganda the 1st applicant, added that the intention to sell is without authority of Court. In his affidavit in reply, Otim Geofrey the 2nd respondent, avered that the suit land has changed hands for consideration, first from an unnamed Court Bailiff, to Kagoda the 4th respondent and then to Kabaziguluka the 3rd respondent, and lastly to Otim, who is in occupation and use of it. He contends that he enjoyed peaceful occupation of the suit land until 2014 when the applicants lay false claims to it. He continues that the suit is time barred and the prayers sought in this application are achievable only after hearing it in full.

Temporary injunctions are provided for under Order 41 Rule 1(a) of the Civil Procedure Rules which provides that;

“Where in any suit it is proved by affidavit or otherwise

  1. That any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree;........
  2. The court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposing of the property as the court thinks fit until the disposal of the suit or until further orders”

Both counsel have in their submissions discussed the principles on which a temporary injunction can be based. I add that the principle that the interest of the Court should be to maintain the status quo pertaining until the main suit is disposed of. Lord Diplock in his decision in American Cyanamid Co. Vs Ethicon Ltd [1975] AC 396 laid down the principles which have been readily followed in our Courts. See for example: Francis Babumba and 2 others Vs Erisa Bunjo HCCS No. 697 of 1999 and Robert Kavuma Vs M/s Hotel International SCCA No.8 of 1990. The Court must be satisfied that:-

  1. The applicants have by their pleadings demonstrated a prima facie case with a probability of success in the main suit.
  2. The applicants are likely to suffer irreparable damage if the injunction is denied.
  3. If court is in doubt as to the above considerations, it will decide the application on the balance of convenience.

 

In addition to those principles, the Court is mindful that temporary injunctions are discretionary orders, and flexibility is allowed for as long it remains in the realm of that which is judicious. Further the Court should not attempt to resolve issues related to the main suit. See for example; Prof. Peter Anyang Nyongo & Others Vs The Attorney General of Kenya & Others; East African Court of Justice Case Ref. No. 1 of 2006 (unreported).

The applicant has to show that he has a prima facie case with a probability of success in the main suit

A primafacie case with a probability of success is no more than that the Court must be satisfied that there is a serious question to be tried. See for example Mirembe Matovu Vrs Standard Chartered Bank (U) Ltd & Anor (M/A No. 456/2012) [2013] UGHCCD 114 (13/9/2013. In the case of Robert Kavuma (supra) Wambuzi C J (as he then was) stated that the applicant is required at this stage of trial to show a primafacie case and a probability of success but not success (emphasis mine).  The rationale given in the percuriam of Kiyimba Kaggwa (supra) is that the evidence at this point (being affidavit evidence) is incomplete and not contested by arguments and cross examination.

The applicants have not adduced any evidence both in their main pleadings or the application that they are the legitimate owners of the suit land, which is in fact not described. In the plaint, they claim to have owned the suit land jointly with Ndhokero but their alleged interest in not clearly described and it is not clear who gave them those portions in 1975. Also as pointed out by respondent’s counsel, the claim appears to be bared by statute.  It is stated in the plaint that execution by attachment of Ndhokero’s land was carried out in October 2003, the same date the applicants were evicted and their houses demolished. It is admitted therefore that the bailiffs were carrying out a public duty on authority of the Chief Magistrate’s Court of Jinja. Any appeal against that action would be governed by Section 4 Civil Procedure and Limitation (Miscellaneous  Provisions) Act which provides as follows:

“Where, after the commencement of this Act, any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or other written law, or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such act or other written law, duty or authority, the action, prosecution or proceeding shall not lie or be instituted unless it is instituted within six months after the act, neglect or default complained of, or in the case of a continuance of injury or damages, within three months after the ceasing of the injury or damage”. 

That law is by its nature a statute of limitation whose application requires strict compliance. The plaintiffs had up to about March 2004 to have instituted the main suit. They instead filed it on 19/9/2014, more than ten years after the cause of action arose. Even then, the claim should have been against Kagoda John the 5th respondent for excessive or wrongful attachment and not against the other respondents. I note also that the contention by Priscira Kubonaku the 1st respondent that she does not own the suit land and was therefore wrongfully dragged into the suit, received no response. It is doubtful then that the respondents have a prima facie case against her. I would in summary find that the applicants raise no serious questions to be investigated in the main suit.

The applicant has to show that he is likely to suffer irreparable damage if the injunction is denied

In Francis Kanyanya Vs Diamond Trust Bank HCCS No. 300 of 2000 Hon Justice Lameck .N. Mukasa relying on Kiyimba Kaggwa Vs Hajji Nassar Katende (1988) HCB 43 stated 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.

It was submitted for the applicants that if a temporary injunction is not granted, as owners of the suit land, they will suffer irreparable loss as a result of the respondent’s actions in demarcating the land. I do agree that no party should be deprived of their constitutional right to property before rights in a suit have been settled. However, I have stated here before that the applicant’s claim to the land is not clear in their pleadings and their claim if any, is now time barred by statute. I do agree with respondents’ counsel that the applicants have not in their pleadings shown what injury they will suffer and that such injury will be so serious and irreparable as to merit an injunction. In my view, and in that I agree with respondent’s counsel, mere suspicions that by demarcating the land, the respondents intend to dispose of it by sale, is not sufficient.

Preserving the status quo and balance of convinience

The position of the Court of Appeal on this principle can be found in the case of Godfrey Sekitoleko & Others VS Seezi Mutabazi [2001-2005] HCB Vol.  3 80 which stated as follows;

The court has a duty to protect the interests of parties pending the 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 the property from irreparable damage pending the trial, the court does not determine the legal rights to property but merely preserves it in its actual condition until legal title or ownership can be established or declared.”

I have already stated that the applicant’s claim to the suit land are not clear and their claim is time barred. Therefore, the legal rights to be protected appear at this point, not to be definite. Further, the balance of convenience appears to be in favour of the 2nd respondent. He states in his affidavit that he has been in possession of the suit land since 2012 after he purchased it from Kabaziguluka. He planted on it crops and actively cultivates it. In the circumstances of this case, that is the status quo that I am prepared to maintain.

In conclusion, the applicants have not satisfied the court that they merit the grant of a temporary injunction as the main suit is being heard. The application is denied and the costs shall abide the final outcome of the main suit.

I so order.

 

....................................

EVA K. LUSWATA

JUDGE

25/01/2021