ATC Uganda Limited v Ahamada (Miscellaneous Application 18 of 2020) [2020] UGHC 412 (5 October 2020)

Full Case Text

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT MPIGI

### MISC. APPLICATION NO. 18 OF 2020

#### (ARISING FROM CIVIL SUIT NO. 53 OF 2020)

**ATC UGANDA**

LIMITED....................................

#### **VERSUS**

#### **AHAMADA**

SEMAKULA.................... . RESPONDENTS

### BEFORE HON. JUSTICE PHILLIP ODOKI

#### **RULING**

## **Introduction**

The Applicant, ATC Uganda Limited, filed this application by Notice of Motion under Section 33 of the Judicature Act & Order 52 Rule 1,2 & 3 of the Civil Procedure Rules. The Application seeks for;

(a) A temporary mandatory injunction be issued to restrain the Respondent, his agents, servants, assignees or third-party from blocking and disrupting the Applicant in accessing

part of land measuring $20 \times 20$ meters in Katende Zone village, Mumyuka 'A' Parish, Kibibi Sub-county, Butambala County, Mpigi District comprised in Block 80 Plot 1741 until hearing and final determination of the main suit. (b) Costs of this application be provided for.

The grounds of the application are that;

- 1. The Applicant is the owner of a leasehold interest on a 20x20 meters piece of land comprised in Butambala Block 80 Plot 1741 where it has a mast, having acquired the same from MTN Uganda Limited and it has been in possession of the same since 2012. - 2. Around the 14th September, 2020 the Respondent without any reason or justification arbitrarily denied the Applicant's field agents access on the said land to carry out maintenance works thereby disrupting network in Mpigi and the neighboring districts. - 3. The Applicant has filed a civil suit in this court challenging the Respondent's action. - 4. That it is just and equitable that a temporary mandatory injunction is issued compelling the respondent to restore the status quo ante.

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#### Evidence:

The application is supported by the affidavit of Amuza Baluku in which he avers that the Respondent is the owner of land comprised in Butambala Block 80 Plot 1741 land at Katende. On the 30th May, 2008 the Respondent sold part of the said land measuring 20 $\times$ 20 meters (hereinafter referred to as the suit land) to A. N Consults Ltd. On the 4th October, 2008 A. N Consults granted a lease of 49 years to MTN Uganda Limited. $_{\rm MTN}$ Uganda Limited constructed a telecommunication mast on the suit land. In 2012, the Applicant acquired the suit land and the mast from MTN Uganda Limited and they have since been in occupation. Around the 14th September, 2020 when the Applicant's field agents went to the suit land to carry out maintenance works on the mast and to refuel its generators, they were denied access by the Respondent. As a result, the Applicant's mast has been switched off thereby disrupting MTN network in Mpigi and the neighboring districts.

The Respondent swore an affidavit in reply in which he avers that he has never entered into any agreement as alleged by the Applicant. He states that in 2008, some people approached him and convinced him that MTN was going to erect a mast on his land and in return they would pay him annual rent. That since 2008 when the mast was placed on his land, he has never been paid any rent by MTN or the Applicant or anyone. Since 2014, he made several efforts to the Respondent and MTN to pay him or leave his land but all has been ignored. He avers that he was forced to deny the Applicant's agents access to the suit land since

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they have failed to pay him rent. He states that he is in full possession and occupation of the land.

## **Representation:**

During the hearing, the Applicant was represented by Mr. Patrick Turinawe while the Respondent was represented by Mr. Denis Mudola and Jerald Otim.

## Submissions of Counsel:

Counsel for the Applicant submitted that it is not disputed that the Applicant has been in possession of the suit land since 2012 and that the Respondent has blocked the Applicant from accessing its mast. As a result of the actions of the Respondent, there is now total disruption of communication in the area which is a great inconvenience to the general public. He argued that there is a great danger of breakdown of equipment and losses and yet the dispute as to the ownership of the suit land or payment of rent claimed by the Respondent can be resolved in the main suit. He submitted that the injury therefore affects the applicant more that the Respondent. He prayed that this court should grant a mandatory temporary injunction against the Respondent forcing him to restore the status quo ante. He relied on the case of Rashida Abudul Hanali and another versus Suleiman Adrisi HCMA No.11 of 2017 in which Mubiru J.

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discussed the rationale and the grounds upon which a mandatory temporary injunction can be granted.

Counsel for the Respondent submitted that according to the case of **Rashida Abudul Hanali** supra ,the Applicant has to demonstrate that he has a prima facie case and that there was an order or directive which was disobeyed by the Respondent or that at the time the Applicant was dispossessed there was an impending order. He submitted that in this case the Applicant has not demonstrated that it has a prima facie case. The agreement alleged to be between the Respondent and A. N Consults Ltd does not have any consideration. The Respondent being an illiterate, there is no translation of the agreement to him contrary to the Illiterate Protection Act. He submitted that there is no order or directive of this court which was forestalled by the respondent nor was there any impending order before he took possession. The status quo at the time of filing the suit was that the Respondent was in possession. He argued that the balance of convenience lies on the respondent who has been deprived of the use of his land for farming for the last 12 years and the continued blocking him to use the land affects his finances. He further submitted that the Respondent is the registered

proprietor of the suit land, if the order is granted it will deprive him of the right to property and quite possession. He stated that court should take caution in granting this application since if the court granted the order it would have decided the main suit.

In his rejoinder, Counsel for the Applicant submitted that on a prima facie case, there is a dispute of ownership of the suit land. As regards the condition that there must have been an order which has been overturned or being contemplated, counsel submitted that each case must be decided on its own merits.

# Determination by the court:

The law on temporary mandatory injunction was well set out in the case of Rashida Abudul Hanali and another versus Suleiman Adrisi HCMA No.11 of 2017 cited by counsel for the Applicant and in the case of **Xing Wang Company Limited** versus Zheng Zuping HCMA No. 1 of 2018 where Mubiru J. held that, the grant of a temporary mandatory injunction is at the discretion of the court, taking into account the facts and circumstances of a particular case and more specifically the extent of injury or inconvenience caused to the applicant by the conduct of the respondent and the extent of injury or hardship that will be caused to the respondent by the grant. It is granted

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only to restore the status quo and not to establish a new state of things. The basic principle is that the court should take which ever course seems likely to cause the least irremediable prejudice to one party or the other. The other factor that is relevant is the extent to which the determination of the application at an interlocutory stage will amount to the final determination of the rights and obligations of the parties.

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In this case, it is not disputed that the Applicant has at all material time from 2012 been in possession of the suit land up to the time when the Respondent decided to deny it entry. The Applicant alleges that the denial of entry took place around 14th September, 2020. This fact is not denied by the Respondent. The Applicant has proved to the court that as a direct result of the said denial of entry onto the suit land, they are suffering great inconvenience and disruption of network in communication in Mpigi and other neighboring districts because they are not able to do maintenance works on the mast or to refuel the generators. This fact is not disputed by the Respondent. To the contrary, the Respondent is raising the issue of the ownership of the suit land which issue cannot be determined at this stage. I am not convinced by the submissions that the Respondent derives his

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livelihood from farming on the suit land. This is because, he only came into possession in September, 2020. Before that time he was surviving anyway. If the Respondent were to become successful in the main suit, he can be compensated in damages. However, if the Applicant were to become successful in the main suit, damages would not be adequate to remedy the failure of network to the Applicant and to the consumers of communication in the districts of Mpigi and other surrounding districts. It is clear to me that the inconvenience and hardship to the Applicant outweigh that of the Respondent.

As regards the submission of Counsel for the Respondent that the Applicant has not demonstrated that he has a prima facie case, it is my considered opinion that the case of Rashida Abudul Hanali cited does provide for proof of a prima facie case as one of the preconditions for a grant of a mandatory temporary injunction. Be that as it may, the applicant pleaded that they are owners of the suit land which is denied by the Respondent. There is therefore a triable issue of who is the owner of the suit land. This issue can only be determined in the main suit.

As regards the submission that the Applicant has not proved that there was an order or directive which was disobeyed by the

Respondent or that at the time the Applicant was dispossessed there was an impending order, it is my considered opinion that it is not in all cases where a temporary mandatory injunction is granted there must be an order or an impending order. In my opinion, each case has to be determined on its own merits.

I therefore consider that this is a fit and proper case for the grant of a temporary mandatory injunction. I will therefore order that the Respondent restores the *status quo ante* by granting the Applicant unlimited access to the suit land pending the hearing and final determination of the main suit. The costs of this application shall abide the outcome of the main suit.

I so order.

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Dated this 5th day of October, 2020

Phillip Odoki

Judge