Ddamulira and 61 Others v Logic Real Eststes and Developers Limited and 5 Others (Miscellaneous Appeal 20 of 2023) [2023] UGHCLD 258 (30 August 2023)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA LAND DIVISION MISCELLANEOUS APPEAL NO. OO2O OF 2023

## ARISING FROM MISCELLANEOUS APPLICATION NO.499 OF 2023 ARISING FROM CIVIL SUIT NO.194 OF 2023

DDAMULIRA RONALD SANDE & 61 OTHERS VERSUS APPELLANTS

1. LOGIC REAL ESTATES & DEVELOPERS LTD

- 2. OJAMBO MAYENDE DAVID - 3. FRED KAKANDE RESPONDENTS - 4. MUTABARUKA INNOCENT - 5. UGANDA LAND COMMISSION - 6. ATTORNEY GENERAL

#### RULING

#### BEFORE HON. LADY JUSTICE KANYANGE SUSAN

This was an appeal brought under S.98 and79 (1) and b of thc Civil Proccdure Act Cap.71 and S.33 of the Judicaturc Act.

It is for orders

- <sup>1</sup>. The learned Assistant Registrar's Order dcclining to grant the Temporary Injunction in Misc. Application No.499 ol 2023 was contrary to the lacts and the law govcrning temporary injunctions. - 2. Th.at the learned Assistant Registrar's ordcr dismissing the application for the tcmporary injunction be set asidc

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- 3. That Misc. Application No.499 be allowed and the orders sought in the terms - a. A temporary injunction be issued prohibiting thc respondents/dcfendants their agents, employees, contracted companies or any person/ entity acting on their behall lrom evicting applicants, any construction, grading, putting demolishing of any house , construction of any perimeter wal1, developing, building on thc suit land compriscd on land lalling or comprised in No.7 FHRV WAK532, folio 2land at Kirinya Wakiso Kyaddondo Block 242 plot 1 169 area A .l 4640 hectares FHRV WAK 552 folio 3 land at Kirinya Wakiso, Kyadondo Block 242 plot 1 I 70 arca7541o hectares FHRV WAK 552 Folio 4 land at Kirinya Wakiso, Kyadondo Block 242 plot <sup>1</sup>1 7 7 arca 19040 hectares, FHRV WAK 552 Folio 6 land Kirinya Wakiso, Kyadondo Block 242 plot 1173 arca 1.4850 hectarcs FI'IRV WAK 552 folio 7 land at Kirinya Wakiso, Kyadondo Block 242 plot 174 area l.27BO hcctares FHRV WAK 552 folio B land at Kirinya Wakiso, Kyadondo Block 242 plot 1 178 arca I3O8O hectares FHRV WAK 552 folio lO land at Kirinya Wakiso, Kyadondo Elock 242 pl,ol 1177 arca 8260 hcctarcs and FHRV WAK 552 folio l2 land at Kirinya Wakiso, Kyadondo Block 242 plot I 179 area 18790 hectares which is registered in namc os i"t respondent FHRV WAK 552 folio 9 land at Kirinya Wakiso, Kyadondo Block 242 plot 76 arca 1562O hectares which is registered in the names of the 2n(l rcspondent. IrHRV WAK 552 land at Kirinya Wakiso, Kyadondo block 242 plot 3 arca O.4840 x 247 t hectares which is rcgiste rcd in the names of the 3.d respondent FHRV 1466119 land at Kirinya Wakiso Kyadondo Block 242 plot l18 area 2.475 hcctarcs which is registered in the name s of thc 4th rcspondcnt until the disposal of the main suit

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### b. Costs of the main suit

The grounds of the appeal are set out in affidavit of the 1"t applicant but briefly they are;

They are dissatisfied with thc ruling by His Worship Kintu Simon Zirintusa dismissing their application for temporary injunction.

That the Trial Registrar erred in 1aw and fact when he insinuatcd that the three grounds for grant of tcmporary injunction must be proved.

Further to this that the appellants failed to provc thrcat of cviction and that their loss can be atoned in damages and be compensatcd. That the Assistant Registrar erred when he based on the fact that the appellants failed to prove their possession and developments on thc land and rcluscd to preserve the subject mattcr till conclusion of the casc.

That the Assistant Registrar misapplied the facts of thc case and law and found in favour of dismissing of the application. He also mislcd himself about the 1aw governing temporary injunctions and it's in intcrcst of justicc that application is allowed.

The I "t and 4th respondents in reply avcrred that the applicants havc no locus to apply for, or obtain any injunction in rcspcct of the'ir respcctivc properties and they failed to prove they have an interest. That thcy did not prove they are currently being forced to vacate thc 1and. Further to this the Assistant Registrar rightly found that govcrnmcnt is capable of compensating them in case they are found to havc an intcrest. Thc applicants did not prove irreparable loss or injury and mere assertion of possession without proof is unsatisfactory.

That the photos attached do not indicate proof of possession by all thc 62 applicants and that also the Registrar nevcr found they arc equitablc owners or project affected persons but only relerred to it.

That it is not certain which part of the land the appellant allcged intcrest is on, and a blanket order in respcct ol their entire land would be vague and misused.

While the Sth and 6th respondents averred that there is no evidence to show that the titlcd plots falt within the project area for construction of Bukasa Inland Port Project nor is thcrc threat of imminent eviction by armcd Police Force officials and UPDF soldiers.

Further to this that thcre is no cvidencc that all thc 62 applicants arc residents with structures on the said land. That the govcrnment has commenced a multi billion do1lar projcct of the construction and development of the Bukasa Inland Port and there is no irreparable damage they will suffer if they are genuine project affected persons as they will bc adequately compensated.

That the ba-1ance of conveniencc lies in favour of govcrnmcnt so as not to cripple the developmcnt. Their appiication did not satisly thc grant of an order of a temporary injunction.

The 2n(r and 3.d rcspondents also avcrrcd that the injuction sought is against their 1and. They have never threatcncd to cvict them in casc thcy are in possession. That at the time of acquisition of lald, nonc of them was in possession and if thcy have entered they are trcspassers. Furthcr to this they are impostcrs who cut down trecs and claimcd interest but do not have houses or developments thercon. That balancc of convenience is in favour of registercd proprietors and government whose projcct will stall.

/. g The applicants lilcd rejoinders

#### Representation

M/s A. Kajubi & Co. Advocates rcpresentcd the applicants. Thc l"t and 4th respondents were represcnted by M/s Magna Advocates, the 5th and 6th respondcnts were reprcsented by the Attorney General's Chambers whilc the 2,.,1 rcspondcnt was rcprcscntcd by M/S Maven Advocates

#### Resolution

### Preliminary Objection

Counsel for the 1sr, 2n(1, 4th, 5th and 6th respondents prayed that appeal lor struck off as it was filed out of time and no good cause has been advanccd for filing out of timc. They referred to S.79(1) ol the Civil Procedurc Act. It provides that,

- l Except as otherwise specifically providcd in any other law, every appeal sha1l be entcred - a. Within thirty days of thc datc of the decrce or ordcr of thc court. - b. Within seven days of the date of thc order of a Registrar as thc case may be appealed against but the appellant court may for good cause admit an appeal though the pcriod ol limitation prescribed by this section has elapsed.

The appcllant courl may for good rcason grant leave to appcal out of timc. See case of Kazira versus Samalie Nassali t/a Kasasa & Co. Advocates HCA No.34 of 2OL4 and A. G versus A P K M Lutaaya SCC App No.12 of 2OO7.

V,, w In the casc of Barclays Bank of Uganda Limited versus Eddy Rodrigues 1987 HCR pg.36 thc court is cmpowcrcd to strike out an appcal il among other things somc csscntial step in the procccdings has not bccn takcn. See also case of Hannington Wasswa & Anor versus Maria Ochola & others Supreme Court Misc. Application No.12 of 1998

Counsel for the appellant in rejoinder submittcd that timc of appeal does not start running until the record of procccdings is availe d to thc appcllant from the court. He refercd to casc of Ogbuonye versus Kawooya Civil Appeal no 40 of 2016 (2018 Ug Com 58)

In instant case the Assistant Registrar delivcrcd a ruling on thc 14rh day of April 2023. Thc notice of motion was filcd on 24th April 2023 on trCCMIS by Counsel for the Appcllant. The appcal was thus filed out of timc by lew days.

Counscl Ior the appcllant has not applicd for time for cxtcnsion. In thc case of China Railway No.3 Engineering Co. Ltd versus Muwema & Co. Advocates & Solicitors Misc. Appeal No.4O of 2O2t arising from Misc. Applications No.544 & 138 of 2021, It rvas hcld that whilc rulcs ol proccdure are madc to be obcyed, whcrc stricl observancc may lt:ad 1o iniusticc on any ol thc parrtics, thc court should bc libcral in intcrprcting the rulcs in order to do substantial .justicc.

In instant case since appeal was filed out of time after few days, I will invoke S.98 of the Civil Procedure Act on courts inherent powcrs and validate the appeal.

Preliminary objection is therefore overruled.

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### Consideration of the appeal

Issue 1- Whether the learned Registrar erred in law and facts when he dismissed the appellant's application for temporary injunction.

Order 50 Rule B of the Civil Procedure Rules provides that any aggrieved party by the decision of the Registrar has a right to appeal against thc same to the Judge.

Order 41 Rule I provides for cases in which temporary injunctions may be granted, it states that where in any suit it is provcd by affidavit of service;

- a. That any property in dispute in a suit is in dangcr of being wasted, damagcd or alienated by any party to thc suit or wrongfully sold in execution of a decree or - b. That thc de lendant thrcatcns or intends to removc or disposc oll his or hcr property with a view to defraud his or her crcditors The court may by order /grant a tcmporary injunction to restrain such act or make such order for the purpose of staying and preventing thc wasting, damaging, alicnation, salc, rcmoval or disposition of the propcrty as thc court thinks fit until the disposal of the suit or until lurther ordcrs.

Thc purpose of tcmporary 'injunction is primarily to maintain thc status quo of the subject mattcr pcnding thc final dctcrmination of thc rights ol Lhc partics in ordcr Lo prcvcnt thc cnds of justicc from bcing dcfc:rtcd. Scc case of Behangana Damaro & Anor versus Attorney General Constitutional Application No.73 of 20lO.

Status quo simply denotcs thc cxisting statc ol aflairs bclorc a givcn particular point in time. Scc Erisa Rainbow Musoke versus Ahamada I{ezala 1987 HCS pg 81.

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Thc grounds which must be provcd bcfori: an injunction is grantcd wcrc stated in Kiyimba Kaggwa versus Hajji Abdul Nasser Katende 1985 HCS pg.43 (also relicd on by all counscl and thc Assistant Rcgistrar.)

- a. Firstly that thc applicant must show a prima lacic case with probability of succcss - b. Secondly such injunction will not normally be granted unless the applicant might othcrwise suffer irrcparablc injury which r.r'ould not adequatcly be compensated for in damages - c. Thirdly if thc court is in doubt, it would dccide an application on a balancc oI convcn icncc.

## See also Shiv Construction versus Endesha Enterprises Ltd Civil Appeal No.3l of 1992

The applicant must show a prima facic casc with a probability ol success. At this stage, court docs not delve dccp into thc mcrits of thc casc to scc iI thc applicant has a plausiblc case. Rather court dctcrmines that thc claim is not frivo'lous or vcxations and that thcre is a scrious issuc to bc dete rmined at thc trial. Scc casc of Gapco (U) Ltd & Anor versus Kaweesa Badru & Anor Misc. Application No.259 of 2O13.

The appellants fiied HCCS No. 194 of 2023 against thc respondents as Bibanja owners on the land registercd in the names of thc rcspondents. They claim they bought from lormer slum dwellcrs who werc settlcd on thc suit public land following the government bid to streamlinc settlement housing within the city and have built thcre and thcy are bonafide occupants and some are doing busincss.

The l. L, lncl 2p6l 4rh rcspondcnts avcrred that thc applicants havc n<t interest in their registered land and arc not known to thcm. Further to this that they have not thrcatened to cvict any of thc applicants and thcy

k are not the Bibanja owners. The Trial Assistant Registrar found thcre were triable issues and lound it was not necessary to delve into matters of ownership

Counsel for the appellant submitted that the Registrar was wrong to decide application on basis of convenience disregarding the fact that he had already established there was a prima facic case with probability of success. In reply the respondents submitted that merely iinding that an applicant has a prima facie casc does not entitle the applicants to a grant of an order for temporary injunction.

In the case of American Cynand Co. Ltd versus Ethico Ltd 1975 IWLK 316 cited by Counsel for the appcllant Graham J.

found that thc aflidavit cvidcncc showcd thcrc werc serious qucstions to be tried though thc availablc cvidence was incomplcte. Thc Judgc thcn decided matter on a balance of convenicncc. It thus not true that whcrc court finds a prima lacie case it does not consider the othcr grounds likc balance of convcnience and the trial Registrar was not wrong to considcr the application on a1l thosc grounds.

Thc phrasc "if court is in doubt it would decidc application on a balancc of convcnience" docs not mean that whcrc a prima facie has bccn established court docs not look at the balancc ofconveniencc. In this cnsc the Rcgistrar had lound a prima facic case was establishcd but thcrc was no irrcparablc injury. Thc court thus had to dctcrminc thc 3r(l tcst of balance of convenience to scc whcre the scalc tilts as it was sti1l in doubt. See case of Capital Shoppers & others versus URA Misc. Application No.265 of 2O2O.

I also find that a primafacic case was cstablished as thcrc arc triablc ISSl-lCS.

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## Irreparable injury

Irreparablc injury is dclined by Black's Law Dictionary 9f, Edition pagc 447 as "Damages that cannot bc casily ascertained bccausc thcrc is no fixed pecuniary standard of measurcmcnt.

In the case of Kiyimba Kaggwa (supra) it was held thal an injunction will not normally be granted unless the appliczrnt might otherwise suflcr irreparable injury which would not adequately be compcnsatcd for in damages.

This does not mean that there must not bc physical possibility ol repairing the injury but means that the injury must be a substantial or matcrial one that is one that cannot be adequatcly compcnsatcd for damagcs.

After considering the above definition, the trial Registrar found that there was no proof of threat to evict the appiicants. That the applicant only asserted that the respondents havc unleashed their uniformed armed police force and UPDF who are currently forcing them to vacatc thc suit land. There is no enough proof on record to back this asscrtion. Further to this that the applicants have not proved that in case they are found to have an interest in the suit land governmcnt is incapablc of compensating them in damages.

In his submissions counscl for the appellants submittcd that in para 1[3 in affidavit of Ddamulira Ronald, he swore that the rcspondcnts had engaged armed officials to lorce them off their land which was adcquatc proof of the threat of eviction.

Y/,/ & That they erlso proved they were lawful occupants and bonafidc purchasers for value of thc suit land and court's duty was to protcct them. Furthcr to this that the I "1, 2ntt , 3td and 4th defendants are thc rcgistcred proprictors not government and they have not proved they are capable of compensating the appellants in damages. He referred to Articlc 26(1\ & 2 of the Constitution of Uganda and statcd that thcre is a criteria lor government acquisition of land which the respondents havc not, complied with. That the land is also not designated for Bukasa Inland Port.

In reply counsel for the l"t and 4th respondcnts submitted that thc applicants did not provc that governmcnt is incapablc ol compensating them in event that thcy havc interest and their plaint has praycrs oI genera'l and exemplary damages. Furthcr to this thcy havc not adduced evidence to prove interest, developments apart from pictures of onc or two hou se s.

While counsel for thc 2nd, and counscl for 51h and 6th rcspondcnts submitted there is no evidence to show plots cleared by thc applicants fall within the project areas for construction of Bukasa Inland Projcct. Also there is no evidence of imminent cviction by armed policc officials and UPDF soldiers or that th.c 62 applicants are rcsidents with structurcs on thc said land. That all projected alfcctcd pcrsons wcrc fully idcntilicd and compensated thus applicants are impostcrs.

That one cannot invokc doctrine of irreparablc damage ovcr a mattcr likc the instant one, whcrc government has alrcady commcnced a multi-million do11ar project of the construction and dcvelopmcnt of thc Bukasa Inland port. Thus no irreparable damage that cannot be adequatcly compcnsatcd for in damages if thcy are found to be, gcnuinc projcct aflcctcd pcrsons.

In their annexturcs to the rejoindcr, thc appcllants put various salcs agrccmcnts and some photos oi thcir houscs. Thc photos do not contain

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houses or developments of 62 pcople. I therefore agree with the trial Registrar that apart lrom appellant asscrting that UPDF soldicrs and policemen were evicting them, it has not bccn proved who exactly arc bcing evicted. Sincc government claims it compensated projcct alfectcd pcrsons, there will be need to bring cvidcnce in the main suit to prove ii the appellants are genuine projected affected persons.

The 5th and 6th respondents proved there is a multibillion project at Bukasa inland port for government.

Under Article 26 ol the Constitution of Uganda 1995, thc govcrnmcnt is mandated to acquire land compulsorily for public use and Articlc 26(3) the constitution provides for prompt, fair and adcquate compcnsation.

If appellants arc found genuinc allectcd projcct pcrsons. I lind that government can atone for thcm in damagcs lor thcir homcs and othcr dcvclopments. Therc arc many cascs whcrc courts havc awardcd damages or ordcrcd govcrnmcnt to pay pcrsons lor thcir land that has bccn compulsorily acquircd. Sec cases of Annet Zi:nbiha versus AG HCCS no 1O9 of 20ll. Sheema Cooperative Ranching Society and 31 others versus AG HCCS no IO3/2O1O.

The trial registrar was thus right to lind thcrc was no irreparablc damagc that could not be atoncd to in damages.

## Balance of convenience

This is considered when court is in doubt. I-laving lound that thc appellants shall not suffer irreparablc loss and that registrar found thcrc was a prima facie case, I must consider the balance of convcnience.

The Trial Registrar found that the Sth and 6th respondents will bc morc inconvenienccd if thc application is grantcd bccause there is an ongoing Government Project of constructing of thc Bukasa Inland Port, a projcct which has already commcnced. That mere assertion that thc applicants are in posscssion and have developed thc land without proof of the samc

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is unsatisfactory. He dismissed the application as the applicants had not met all the conditions for grant of temporary injunction.

Counscl for the appellant submitted that thc Registrar did not considcr thc appcllants were lawlully grantcd thc land and somc purchascd thc same legally and even bui'lt houses, homcs and somc wcrc carning a living from the re. That by rcfusing to grant an inj un cti on thcy will bc inconvenicnccd he rcfcrrcd to casc of Yefusa Guloba & Proscovia Namusobi versus R L Jain Misc. App. No.334 of 2013 whcrc it hcld loss of family land cannot bc compensatcd for by damagcs as it is of sentimental value.

That the appellants have not proved that Bukasa Inland Port projcct is taking piace on the suit land as othcr individuals havc titlcs ovcr thc samc land. In reply the 1"t and 4th respondcnts submittcd that thc Rcgistrar rightly held that the Str,and 6rh respondcnts will be morc inconvcnicnced because of the ongoing govcrnment project.

Counsel for sth and 6rh respondents submitted that balancc ol convenience is in favour of the government which has a multi-mi'llion dollar project of the construction and development of the Bukasa Inland Port which is donor funded. That it will unfairly be stalled if an injunction is issued in favour of the applicants thercby crippling thc dcvelopments of the Bukasa Inland Port and causing collateral collossal loss and damage to government.

Black Law Dictionary defincs balance of convenicncc as 'thc question to balancc thc rcliel givcn to thc plaintifl against the injury that will bc donc to the defendant.'

in the casc of Kiyimba Kaggwa versus Hajji A N Katende (supra) court held that thc balancc of convenience lics morc on thc onc who will suflcr

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more if the respondcnt is not curtaincd in thc activitics complained oll in the suit

In instant case the 51h and 6th rcspondents claim there is a multi-million project for Uganda of the Bukasa lnland Port. The appellants refute this saying land is registere d in the names of the I st, 2n(1, 3rd and 4rh respondcnts and not part of the govcrnment projcct land for Bukasa Inland Port.

In the case of Tumukunde versus Attorney General and another Misc. App. No.489 of 2O2O Justice Sekaana Musa hcld that; Courts of law should bc slow to grant an injunction whcn a public projcct lor thc beneficiary interest of the public at largc is sought to bc dclaycd or prevented by an ordcr, damagc from such injunction would causc t he public at large as well as to a government is a paramount fact to be considcred. Bctween the conflicting intcrcst, the intcrcst oi thc public at large and the interest of a few individuals the intcre st ol thc public at largc must prevail.

Also in Capital Shoppers versus URA Misc. App. No;265 of 2O2Ocourt cautioned itself to granting an injunction against governmcnt projccts that are meant for thc interest of thc public at 1arge.

I find that though thc land is registcred in thc names of thc I st,f,nrr 3r<l and 4th respondcnts, the 51h and 6th rcspondcnts have provcd it falls in thc area where the government is undertaking a multi million project. The balance between private individuals against public interest in this case, lics in favouring public intercst ol Uganda population that will gain lrom thc inland port.

I thereby find that balance of conveniencc lics in favour of the 5rh and 61h respondents and the trial rcgistrar was right to hold so.

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In conclusion all the grounds of appeal fail. The trial registrar's orders are upheld. The appeal is dismissed with costs

DATED AT KAMPALA THIS ---- 30 DAY OF Angue 1 2023

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KANYANGE SUSAN AG JUDGE LAND DIVISION.