THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(LAND DIVISION)

MISC APPLICATION NO. 1110 OF 2013

(ARISING OUT OF CIVIL SUIT NO. 533 OF 2013)

BIRUNGI
SIMPSON…………………………………………………………………………………………
APPLICANT

VERSUS

1. BAYEGA HALIMA
1. NKWANGA MANSUL ………………………………
RESPONDENTS
2. THE MUYAMBI ANTHONY

RULING

BEFORE HONOURABLE LADY JUSTICE EVA K. LUSWATA

This is an application for a temporary Injunction. The brief facts are that the applicant purchased
land comprised in FRV HQ T10 Folio 6, Block (Road) 415 Plot 42 at Kamaliba (hereinafter
called the suit land) from the 1stand 2nd respondents on 23/7/13 and the transaction was sealed as
an agreement of sale of the same date. The 2 nd and 3rd respondents then proceeded to sell the suit
property to the 3rd claiming that the applicant had failed to pay the balance of the purchase price
and waived his right of purchase in the agreement. The applicant deemed the transaction
between the respondents to be fraudulent and thereby filedCivil Suit No.533/2013 contesting it
and seeking order for cancellation of the registration in favour of the 3 rd respondent. The
applicant further claims to be in possession of the suit land and thereby presents this application
seeking orders(inter-alia) to restrain the respondents, their agents, employees or successors in
title from transferring, dealing, in trespassing or interfering with the applicant’s possession, use
and quiet possession of the suits land until disposal of the main suit. The parties filed several
affidavits in support and rebuttal of the application and the matter proceeded by written
submissions.

The law on temporary injunctions is contained in Order 41 rules 1(a) of the Civil Procedure
Rules. The principles to be followed before granting a temporary injunction a well settled and
quite well articulated in the submissions of counsel.

It is now settled law that when court is considering the application for a temporary injunction it
must bear in mind that its purpose is to preserve the status quo in respect of the matter in dispute
until determination of the whole dispute: See for example E.L.T. Kiyimba Kaggwa Vs Haji
A.N,. Katende (1985) HCB 43 andCommodity Trading Industries Vs Uganda Maize
Industries and another [2001-2005] HCB 118. The principles governing the grant of a
temporary injunction are well settled and have been well argued by both counsel. In the case of
American Cyanamid Co. Vs Ethicon Ltd [1975] AC 396 Lord Diplock laid down guidelines
for the grant of temporary injunctions that have been followed in Ugandan cases of 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 they include;
1. The applicant has to show that he has a prima facie case with a probability of success in
the main suit.
2. The applicant has to show that he is 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 considering the above principles, the court should also bear in mind that that temporary
injunctions are discretionary orders and always that the court should not attempt to resolve issues
related to the main suit: See: Prof. Peter Anyang Nyongo& others Vs The Attorney General
of Kenya & Others; East African Court of Justice Case Ref. No. 1 of 2006 (unreported)

1) The applicant has to show that he has a prima facie case with a probability of
success in the main suit.
In my view a prima facie case is not necessarily a tight case. It is a case in which the court need
only be satisfied that there is a serious question to be tried. Wambuzi C J (as he then was) in the
case of Robert Kavuma (supra) explained it well when he 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 claim in the main suit is that the applicant bought the suit land and paid part of the purchase
price but was unable to complete the transaction because the 1 st and 2nd respondents, who were
the vendors, sold it to another person. He deemed it fraud for the vendors to have ignored his
unregistered interest and proceeded to deal in and sell the suit land to the 3 rd respondent. He also
deemed it fraudulent for the 3rd defendant to have had the suit land registered into his name when
he was aware of the applicant’s presence on the suit land. He stated that he had suffered loss as a
result of the respondent’s actions and sought orders (inter alia) for the transaction of the
respondents to be reversed and the registration in favour of the 3rd respondent revoked.

In support of his claim, the applicant presented a sale agreement between him and the 1 stand 2nd
respondent’s dated 23/7/13 by which he purchased the land. Indeed, the respondents did not
contest the sale only stating that the agreement had been overtaken by events when the applicant
failed to pay the balance of the purchase price and after he waived his rights and allowed them to
sale the land to a third party. All three respondents contested the fact that the applicant is in
active possession of the suit land. In my view, the applicant has shown on a balance of
probabilities that he did at one point acquire an interest in the suit land and his and the 3 rd
respondent’s conflicting interests should be further investigated. The court would be interested to
know and decide in the main suit which party breached the agreement of sale of 23/7/13, if at all,
and whether the 3rd respondent is an innocent party who purchased the suit land without notice.
All these indeed raise triable issues and by all accounts the applicant has raised a prima facie
case.

Having found so, my next inquiry would be whether the status quo should be preserved as the
court hears the main suit?
 2) The order is intended to preserve the status quo

I believe the above principle is very important because it is important for the court and the
litigants to be given time and space to exhaustively handle the matters in issue in the main suit
with no interference by the respondent, their agents or any other party claiming under their title,
to disrupt the status on the ground. It is not in dispute that both the applicant and the 3 rd
respondent did at different times purchase the suit property from the 2 nd and 3rd respondents.
However, both parties dispute the fact of the party in actual possession. This will of course have
a direct bearing on the status quo to be maintained as the main suit proceeds.

The plaintiff submitted that he is in active possession. Although he did not mention the actual
date he gained possession (and this is a strong bone of contention against him). He claims that
he is already excavating sand from the suit land and he presents photographs and a survey report
in support of his assertions. The applicant further claims that after filing the main suit, he
obtained evidence (by way of search report issued by the Registrar of titles) to show that the 3 rd
respondent is no longer the registered proprietor of the suit land. That he will in the future even
require to move this court for an amendment of his pleadings in the main suit to make the
necessary changes.

The respondents strongly contest the above claims. They assert that the current status quo is that
it is the 3rd respondent in active possession and carrying out the same activity of excavating sand
from the suit land. The 3rd respondent likewise furnishes photographs depicting excavation
activities. He also attaches to his affidavit in reply, a survey report that his counsel attempted to
decipher in his submissions to the effect that it is the 3 rdrespondent in active possession and that
the current position of the applicant is outside the suit land in a road reserve. One of the
photographs produced by the 3rd respondent shows a fence which it is claimed separates the two
parties from each other. The respondents further arguethat the current status quo that should be
maintained can be deduced from the interim order granted by the Learned Registrar (in Misc
Appl, No. 1110/13) on 25/11/13. Therein, the applicant undertook and was ordered“not to
move, or enter to excavate in the land in dispute and claimed by the 3 rd respondent.” According
to the 3rd respondent therefore, granting this application would result into allowing the applicant
to take possession of the suit land (which it is claimed he did not have before) and disposes the
3rdrespondent, thus altering the status quo on the land and not maintaining it.
The arguments of both parties on this principle is quiet extensive and even supported by
documentary evidence. Unfortunately I am unable on the available evidence alone to confirm
which of the two parties is in actual possession for the following reasons.

The acreage of the suit land is given on the certificate of title as 21.4450 acres making it a
sizeable piece of land. It may well be that either party is working on a different location on the
land or even not at all! All this would require more exhaustive evidence but I hasten to add that,
expecting the court at this point of the proceedings to divulge into the details of possession, may
result into the danger of investigating the merits of the suit. The court has not yet visited the
locus or even called oral evidence to support either party and thereby it would be premature to
believe one party against the other. By no means would mere photographs afford a conclusive
picture of the status quo to favour one party against the other. Further, neither the applicant, 3 rd
respondent and nor their counsel can profess to be experts on matters of land survey and
mapping in order to convince this court that the contents of the sketch maps presented depict the
actual status quo favouring their conflicting claims. Even then, I believe this is evidence that
would be the preserve of the authors of those documents during hearing of the main suit.

Further, the order of the Learned Registrar given on 25/11/14 is rather contradictory as orders the
applicant among others not to move thereby, not giving the specific location in which he was to
remain put. I do agree with counsel for the applicant that that particular order did not expressly
set aside or superseded the earlier interim order. It even appears that the court envisaged yet
another hearing interparty on 3/12/13 of those interim proceedings.

I do agree with counsel for the 1 st and 2nd respondents when they state in their submissions that
this case presents a challenge as there is no definite status quo to be established from reading the
pleadings. In my opinion, there is nagging evidence yet to be fully proved that the applicant may
not currently be in possession of the suit land. I would say, similar evidence is present that the
3rd respondent may not be the current registered proprietor of the suit land and therefore have no
business to have a claim in it at all. Above it all, it is most important to this court, and in my
view, it is equally important to the parties herein, that the physical status of the suit land is left
intact and an interrupted until final determination of the matters in issue. In my view, (and the
principles of granting a temporary injunction not withstanding), this case presents a unique
situation that would require the exercise of judicial discretion to achieve a result that is most
judicious and practical in the circumstances. The provisions of S. 98 CPA should in this case
override the provisions of Order 43 Rule, I and 3 on which this application is premised. I
accordingly rather, I resort to choose not to make a finding on the other two principles for
granting an injunction as it would be superfluous to do so in the present circumstances the
provisions of Section 33 of the Judicature Act which I believe should be appropriate and useful.
Therein,

The High Court shall in the exercise of the jurisdiction vested in it by the Constitution,
this Act or any written law, grant absolutely or on such terms and conditions as it thinks
just, all such remedies as any of the parties to a cause or matter is entitled to in respect of
any legal or equitable claim properly brought before it, so that as far as possible all
matters in controversy between the parties may be completely and finally determined and
all multiplicities of legal proceedings concerning any of the those matters avoided.

Thereby in order for this court to fully and effectually investigate the triable issues raised in the
main suit, I move to invoke the inherent powers of this court under the above two provisions to
order that both the applicant and the respondents in this application, and them being the parties in
the main suit, are from the date hereafter, to desist from carrying out any activity on the suit land.
They should not enter upon, occupy, deal in or transfer the property to themselves or any other
person not party to this suit. All parties should forthwith cease any casual or economic activity
on the suit land and shall within seven daysof this order, remove there from any equipment,
workers and/or agents at their cost. This order shall be presented to both the LCI Chairperson
and the Officer in Charge of the police station/post of the area in which the suit land is situate so
that they assist in its enforcement and to maintain the peace.

This order shall remain in force for three months or until the main suit is fixed (whichever is
earlier) and shall be subject to renewal by this court or the Learned Registrar whenever this suit
comes up for hearing.

Each party shall bear their costs in respect of this application.

I so order.

Dated at Kampala this 24thday of February, 2014.

……………………………………………
EVA K. LUSWATA
JUDGE