Gidudu & Another v Gidudu (Civil Appeal 115 of 2023) [2025] UGHC 252 (5 May 2025)

Full Case Text

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

## CIVIL APPEAL NO. 115 OF 2023

(Arising from Miscellaneous Application No. 03 of 2023)

#### (Arising from Civil Suit No.11 of 2023)

#### 1. JOHN GIDUDU

2. ZUBEDA NAMBOZO :::::::::::::::::::::::::::::::::::

#### **VERSUS**

# GIDUDU ISMAIL GUDOI :::::::::::::::::::::::::::::::::::: **BEFORE: HON. JUSTICE LUBEGA FAROUQ**

#### **RULING**

#### 1. Introduction

- 2. The Respondent/Applicant/Plaintiff instituted Civil Suit No. 11 of 2023 against the Appellants/Respondents/Defendants for a declaration that- the defendants' action amount to fraud and trespass to land, a declaration that the defendants actions amount to intermeddling with the estate of the late Gudoi Famau Nangoli, a permanent injunction restraining the defendants and their agents from intermeddling with the estate of the late Gudoi Famau Nangoli, a permanent injunction restraining the defendants and their agents from interfering and from continuously trespassing on the suit land, general damages, mesne profits and costs of the suit. - 3. After instituting the above suit, the Respondent/Applicant/ plaintiff instituted Application No. 03 of 2023 under section 98 of the Civil Procedure Act, Order 41 rule 1 & 2 of the Civil Procedure Rules SI.71 temporary injunction doth issue restraining the for- $\mathbf{a}$ Respondents/Applicants, their agents, servants and all other persons acting under the Respondent's authority or direction from interfering with the suit land until the determination of the main suit, the status

quo be maintained until the determination of the main suit and costs of this application be provided for.

#### 4. Background

- 5. The Respondent/ Applicant is one of the children as well as the direct beneficiaries of the estate of the late Gudoi Famau Nangoli who passed on. The late Gudoi Famau Nangoli left behind properties and the suit land located at Nabodi village, Nagawoya parish, Busulani Sub-County, Sironko District measuring approximately 40 ft by 120 ft forms part of the estate of the late Gudoi Famau Nangoli. - 6. That the actions of the $2^{nd}$ Appellant/ $2^{nd}$ Respondent of selling the suit land to the $1^{st}$ Appellant/ $1^{st}$ Respondent without letters of administration/probate amount to intermeddling with the estate of the late Gudoi famau Nagoli. That the actions of the 1st Respondent of purchasing the suit land from the $2^{nd}$ Respondent well knowing that the $2^{nd}$ Respondent had no legal capacity to do so amount to trespass to land, fraud and intermeddling. - 7. That the Respondent/Applicant instituted a suit against the Respondents vide Civil Suit No 03 of 2023 in this Court and there is a high likelihood of success. The status quo of the suit land is at the verge of being changed before the determination of the main suit since the $1st$ Respondent is now constructing on the suit land. - 8. That the Respondent / Applicant shall suffer irreparable damages if the application is not granted since the $1^{st}$ Appellant/ $1^{st}$ Respondent is making construction on the suit land using a break speed and the Respondent/Applicant's suit shall be rendered nugatory if the application for temporary injunction is not granted. The balance of convenience favours the Applicant since he is most likely to suffer more if the same is not granted. - 9. The 1st Appellant $/1^{st}$ Respondent in reply averred that the suit land does not form part of the estate of the late Gudoi Famau Nangoli. That the status quo will not be changed since he is the one in possession of the suit land and he is not changing the stat/us quo of the suit land as

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claimed by the Applicant because the semi- permanent structure on the land was constructed immediately after he purchased and took possession of the suit land.

- 10. He contended that the Appellant/Respondent will suffer no irreparable damage if this Application is not granted since he is the one in possession of the suit land and if indeed there is any damage, the same if any will be atoned by an award of damages. The $1^{st}$ Appellant/ $1^{st}$ Respondent further contended that the balance of convenience is his favour since he is in possession and utilization of the suit land. - 11. The trial court granted the application for temporary injunction so as to have the status quo preserved as it stands. She further said that no sale or development should be done on the suit land by either party or their agent until when the main suit is determined. - 12. The Appellants were dissatisfied with the above decision hence, this appeal.

### 13. Grounds of appeal

- (a) The learned trial magistrate misdirected herself on the law governing the grant of temporary injunction when she failed to visit locus to ascertain the status quo that court was to maintain. - (b) The learned trial magistrate misdirected herself on the law governing grant of temporary injunction when she granted the application for a temporary injunction with costs to the Application. - (c) That the ruling of the learned trial magistrate has occasioned a miscarriage of justice. - 14. The Appellants prayed that the ruling of the trial magistrate delivered on 5th October, 2023 be set aside, Misc. Application No. 03 of 2023 be dismissed with costs and costs of the appeal be provided for. - 15. Legal Representation - 16. Counsel Masaba Ayubu holding brief for Counsel Obedo Deogratious represented the Appellants whereas Counsel Ntuyo Shafic represented the Respondent.

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17. Both counsel agreed to proceed by way of written submissions and court granted the same. Both counsel complied and their submissions are on the court record.

### 18. Duty of the first appellate court

19. This court takes note of its duty as the first appellate court which is to evaluate the evidence on the court record but not ignoring the decision of the trial court.

#### 20. Preliminary objection

- 21. Counsel for the Respondent raised a preliminary objection which is to the effect that this appeal is incompetent having been filed without leave of court. - 22. He submitted that Order 44 rule 2 of the Civil Procedure Rules provides that an appeal under these rules shall not lie from any other except with leave of court. - 23. He argued that appeals of this nature cannot be competently filed without leave of court and appeals that are of right are succinctly provided for under Order 44 rule 1 of the CPR - 24. He cited the Dr. Sheikh Ahmed Mohammed Kisuule V. Greenland Bank (in liquidation) SCCA No.11 of 2010, where the Supreme Court held that- "where leave is required to file an appeal and such leave is not obtained, the appeal filed is incompetent and cannot even be withdrawn as an appeal. It is not merely a procedural matter but an essential step..." - 25. In rejoinder, counsel for the Appellants cited section 76 (1) (h) of the Civil Procedure Act and Order 44 rule 1 of the Civil Procedure Rules to submit that the Appellants had an automatic right of appeal and needed not to seek leave before lodging the instant appeal. - 26. Determination of court - 27. Section 76 (1) (h) of the Civil Procedure Act Cap 282 provides that-

"An appeal shall lie from the following orders, and except as otherwise expressed provided in this Act or by any law for the time being in force from no other orders- (h) any order made

under rules from which an appeal is expressly allowed by rules."

28. Order 44 (1) (q) of the Civil Procedure Rules SI.71 provides that-

"An appeal shall lie of right from the following orders under section 76 of the Act- $(q)$ an order made under rule 1, 2, 4 or 8 of Order XLI."

- 29. Miscellaneous Application NO. 11 of 2023 was brought under section 98 of the Civil Procedure Act and Order 41 rule 1 & 2 of the Civil Procedure Rule SI.71. This means the application from which this appeal arises fell under Order 44 (1) and (2). According to the provision of the law cited above, it is clear that the Applicants had a right of appeal and therefore ought not to first seek leave of court to institute this appeal. - 30. This preliminary objection is overruled. - 31. Analysis of court. - 32. I will determine the $2^{nd}$ ground first, the 1st ground will follow and the $3rd$ ground will be resolved last. - 33. Ground No.2: The learned trial magistrate misdirected herself on the law governing the grant of temporary injunction when she granted the application for a temporary injunction with costs to the Application. - 34. The law governing temporary injunction is Order 41 rule 1 of the Civil Procedure Rules and it provides that-

"Where in any suit it is proved by affidavit or otherwise-

(a) 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; or*

(b) that the defendant threatens or intends to remove or dispose of his or her property with a view to defraud his or her creditors, 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 disposition of the property as the court thinks fit until the disposal of the suit or until further orders."

- 35. In the case of Kiyimba Kaggwa V. Katende [1985] HCB, court noted that- "the granting of an order for a temporary injunction is an exercise of judicial discretion and the purpose of granting it is to preserve matters in the status quo until the question to be investigated in the main suit is *finally disposed of.*" - 36. Also in the case of Giella V. Cassman Brown & Co Ltd [1973] 1 EA **358** Spry VP at 360 held that: "The conditions for the grant of an interlocutory injunction are now. I think, well settled in East Africa. First, *an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless* the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience." - 37. In the trial court, the Respondent averred that he is one of the children as well as the direct beneficiaries of the estate of the late Gudoi Famau Nangoli who passed on. He left behind properties and the suit land located at Nabodi village, Nagawoya Parish, Busulani Sub-County, Siroko District measuring approximately 40ft by 120ft which forms part of the estate of late Gudoi Famau Nangoli. - 38. He contended that the actions of the $2^{nd}$ Appellant/ $2^{nd}$ Respondent of selling the suit land to the 1st Appellant without letters of administration/probate amount to intermeddling with the estate of the late Gudoi Famau Nagoli. That the actions of the 1st Appellant of purchasing the suit land from the 2nd Appellant well knowing that the 2nd Appellant/Respondent had no legal capacity to do so, amount to trespass to land, fraud and intermeddling. - 39. The 1st Appellant in his affidavit in reply admitted under paragraph 7 and 8 that he is the one in possession of the suit land and that no status quo will be changed since he is the one in possession of the suit

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land. He further said he constructed a semi-permanent structure on the land immediately after purchase.

- 40. It should be noted that what the trial magistrate was under a duty to establish before grant of Misc. Application No. 11 of 2023 was prima facie case, irreparable damages, balance of convenience and ensuring that the status quo is maintained. - 41. I have reviewed the trial court's ruling and noted that all those factors were extensively considered by the trial magistrate before she reached her decision. - 42. In the case of Kiyimba Kaggwa V. Katende (supra), it was stated that the issue of whether to grant or not to grant a temporary injunction application is at the discretion of court. - 43. The trial magistrate considered the averments of both parties together with the submissions of their counsel before she reached her decision. - 44. I have therefore not found any error requiring this court to interfere with the trial magistrate's discretion. - 45. Ground No. 2 is answered in the negative. - 46. Ground No. 1: The learned trial magistrate misdirected herself on the law governing the grant of temporary injunction when she failed to visit locus to ascertain the status quo that court was to maintain. - 47. In Mukasa William V. Uganda (1964) EA 698 at 700, Sir Udo Udoma CJ (as he then was) held as follows-

" A view of locus in quo ought to be, I think to check on the evidence already given and where necessary and possible, to *have such evidence accurately demonstrated in the same way* a court examines a plan or map or some fixed object already exhibited or spoken of in the proceedings. It is essential that after a view, a judge or magistrate should exercise great care not to constitute a witness in the case. Neither a view nor personal observation should be a substitute for evidence."

- 48. In the trial court, the Respondent averred that the 2nd Appellant illegally sold the suit land to the 1st Appellant without letters of administration/probate which to him amounted to intermeddling with the estate of late Gudoi Famau Nangoli. The 1st Appellant in his affidavit in reply admitted purchasing the said land and being in possession of the said land. - 49. Therefore, considering the purpose of locus visit as described in the authority cited, together with the facts above, it is obvious that locus visit was not necessary, the 1st Appellant having admitted purchasing and being in possession of the suit land. - 50. Secondly, the 1st Appellant did not challenge the boundary of the land or deny purchasing the said land from the $2^{nd}$ Appellant, to require the trial court to consider visiting the locus in quo. - 51. Ground No 1 is answered in the negative. - 52. Ground No.3: That the ruling of the learned trial magistrate has occasioned a miscarriage of justice. - 53. Having answered the $2^{nd}$ and $1^{st}$ grounds of appeal in the negative, it follows therefore, that the trial magistrate's decision occasioned no miscarriage of justice to the Appellants. - 54. This appeal accordingly fails in the terms below- - (a) The appeal is dismissed. - (b) The trial court ruling and orders are upheld. - (c) Costs of this appeal are awarded to the Respondent.

I so order.

# **LUBEGA FAROUQ** Ag. JUDGE

Ruling delivered via the emails of the Advocates of the parties on $5th$ day of May, 2025