Bwete v Uganda Consolidated Properties Limited & Another (Civil Suit 197 of 1992) [1992] UGHC 67 (6 April 1992)

Full Case Text

## THE REPUBLIC OF UGANDA \ IN THE HIGH COURT OF UGANDA AT KAMPALA

. CIVIL SUIT NO. 197 OF 1992

TOM BWETE .............. ...... .'PLAINTIFF.

'VERSUS ' ' J '

• &lt; .. ' • ' ' 1. UGANDA CONSOLIDATED PROPERTIES . LTD . 0 KTm 2. WAMIKO CONSTRUCTION (U) LTD. 5 . • BEFORE:- The Honourable Mr. Justice J. W. N., Tsekooko

## R U L I N G '

In this ruling I shall refer to the plaintiff Tom Bwete as the applicant' and. the first defendant',. Uganda Consolidated properties Ltd. as the first respondent. '

I shall refer to the second R'csx on lent' Wamiko . Construction (Uganda) Ltd,, as the second respondent.

The applicant instituted Chamber Summons Under 0. J7 Rules 1,2 and 9, of the Civil Procedure Rules. Because rules.1 and 2 apply to different situations, I asked Counsel for the applicant ' ,• •\_ • • • . . -.1 ' . to decide on which rule he intended to proceed. Mr. Mwesigwa, learned counsel for the applicant applied for amendment' for the application to proceed under Rule, 2. Mr. Kateeba' learned counsel for the first respondent and Mr. Kateera, learned counsel for the 2nd respondent, had no objection. Therefore the application v proceeded under 0. J7 'Rules 2 and 9. I should point out that in the s.uit the claim is for a declaration that applicant is owner of the disputed property. The suit also claims in the alternative' for monetory damages. Both respondents deny applicant's ownership.

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in the application, the applicant seeks for a temporary injunction to restrain the respondents and all parties claiming under them from, interfering with the plaintiff's title and possession of the. property comprised .in lease hold 'Register Volume 32^ Folio 6A/B. Plot 6 Hill Lane, Kololo. The applicant swore affidavit on 17th March, 1992 setting out grounds in support of the application. A " supplementary affidavit was sworn (Applicant's) on J1st March, 1992 by Mr. Sempera. His/counsel relied on these affidavits in his submissions laying emphasis on paragraphs 2,3 and 4 of affidavit sworn on 17th March, 1992 and in particular that the applicant is a beneficial owner of the suit property allegedly because he purchased the same in 1989. However the applicant neither had property transferred to him nor did he lodge a caveat to protect his interests following the alleged purchase of 1989\* Learned counsel cited the case of John Katarikawe Vs. ,W. Katwiremu & another /1977/ HCB 187 to support his submissions that the applicant has overwhelming chances of ; succeeding in the substative suit. He submitted- that as there are no contrary affidavit's, the applicant's affidavit isunchallenged.. I would refer to Law J. A's judgment in Ibrahim Vs. Sheikh Bross /1973? EA. 118 in answer to this/ Learned counsel for the two respondents opposed the appli-

Mr. Katceba.submitted that no basis has been laid for the application and that as there is no caveat? S. 145 of Registration of Titles. Act (RTA) protects the purchaser. That his client

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cation.

had a clean' title" He referred me' to para on page 368 of Halsbury's .laws of England, Vol. Ill 3rd Edition.

For the 2nd respondent, Mr. Kateera submitted that as there was no contract'between his .client, the 2nd respondent, and the applicant, rule *2* of \*0.37 is inapplicable. To an extent Mr. Kateera is right. He further maintained that as the 2nd respondent of is the registered proprietor / the suit property and the applicant has no lease over tAe property, there is no basis for the application. Re cited Katarikawe's case' (Supra). He also referred to the cases of Mustafa Ndigejjerawa Vs. Isaka Kizito and Kubulamwana /1952, - 19567 7. ULR. 31 and Isaka S. Wamala Vs. G. H. Muguluma reported, at page 33 of .the same volume to support the propostion that a person who purchases registered land for value from a registered title holder has an indefeasible title or greater, rights over a.person who claims ownership over the .same property on the basis of a mere'.prior purchase without more.

Like Kpteeba, Mr. Kateera submitted that the applicant can claim for damages as indicated in Katarikawe's case and the famous, case'1,of Noor Mohamed Janmohamed Vs. Kassanali. Virji Madhani /I9537 20 EACA ,8.'

In my view most of the submissions' made would be dealt with . ' • ' ■■■ \* ■, ■■ j more appropriately when considering the final decision of .the case after hearing. I will therefore not say mo(T®u^'ou't th6111 here in view of the decision I have reached. l/have disposed of this, application without referring to most of them. This is \ . • because of the provisions of 0.37 Rule 2.

. That rule- states

"2 (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or. not,, the plaintiff may, at any time after the commencement of the suit, apply to | ' ..... 1 . the court for a temporary injunction to restrain the defendant I ' from committing the breach of contract or injury complained of, or any injury of a like kind arising out of the same contract or relating to the•same property or right".

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This rule is invoked if the plaintiff claims for an injunction in the suit.

It follows, therefore, in my considered view, that an injunction can be sought and may be granted under Rule 2 where in the suit the claim is for an injunction, or includes an injunction. That is when the provisions of the rule are applicable.

In the suit, the present applicant has claimed, for a declaration, in effect that he is o'vner of the property. This is clear from para 3 and prayer (a) in the plaint. There is the alternative prayer for damages which he has quantified. To that. extent the. application is misconceived. In my view this is not an error which I can ignore.

I am supported in this view by the decision of Fuad J., as he then was, in the case of Rev. Emmanuel Nsubuga &• Rev.. Mubiru Vs. The Buganda Government (case No. 108 in Cases on Civil/Procedure & Evidence). M. B. No. 45/64 (HC. Civil Suit No. 142 of 1964). See also 0. J9 Rule 2 of the Indian Code of

Civil Procedure at. page 4015 of 7th Ed. /19637 Edition of A. I. R. Commentaries. That rule is similar to ours and. the learned authors of the book at page 4016 express a similar view. I find -no need to consider cases cited and the rest, of the submissions. Other considerations for grant of injunction don't call for consideration either.

In the result this application, fails. I dismiss it.- I awar.d c os ts , o f t his application to ;the respondents. .

i . ■< ' ' 1 There is a practice which appears to be on the ascendency in Civil Registry which ought to be remedied. Papers are-not. filed at all or properly, or. if .filed'they, ar'e ' riot filed in proper order. This causes inconvenience, among other things. ' In1 this file, the pleadings and orher papers were nqt filed at all. . They weref simply dumped between the cover file sheets. I deplore this, practice and the registrar in charge should take^ steps to ensure that pleadings and other papers are properly filed in orderly fashion.'

> 6/4/^992 ! ' . JUDGE •J. W. N.' TSEKOOKO

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•7/4/1992 at 9,00 a.m. Applicant,absent. Kanyimurwe' for 2nd defendant. 1st respondent absent. Ssensonga for Interpretation. Puling delivered.

\ - /Zz - TSEKOOKO ' • • ' " " J U D G E 7/4/1992- .

Mr. Kateeba for 1st respondent. appears and applogises.

J. W. N. TSEKOOKO J/U D G E $7/4/1992.$

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**NY STARK**

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