Kalya & 2 Others v Ikagobya (Civil Application 31 of 2020) [2021] UGSC 25 (9 February 2021)

## **THE REPUBLIC OF UGANDA**

# IN THE SUPREME COURT OF UGANDA AT KAMPALA

Coram: Hon. Justice Muhanguzi, JSC

## **CIVIL APPLICATION NO. 31 OF 2020**

## 1. ISAYA KALYA

$\mathsf{S}$

- 2. GEOFREY KATOORO - **3. RABWONI JOHNSON..................................**

### **VERSUS**

## MOSES MACEKENYU IKAGOBYA....................................

(An application for a temporary injunction arising out of Supreme Court Civil 10 Application No. 01 of 2020 which arose from Supreme Court Civil Application No. 28 of 2015)

## RULING OF MUHANGUZI, JSC

This application was brought by way of notice of motion under Order 41 rule 1 of the Civil Procedure Rules, rules 2, 42 and 50 of the Supreme 15 Court rules, section 8(1) of the Judicature Act Cap. 3 and section 98 of the Civil Procedure Act, Cap 71. The application seeks for orders that: -

- a. A temporary injunction be issued restraining the respondent, his agents, servants, workmen, employees, licensees and any other person from building, constructing, renting out, cultivating thereon any crops, alienating and causing waste and damage into the suit land until the determination of Supreme Court Civil Application No. 1 of 2020. - **b.** Costs of this application be provided for. - The grounds of the application are stated as follows: -25

- a. That the applicants filed Supreme Court Civil Application No. 1 of 2020 which was heard and is pending ruling on notice. - b. That the delivery of the said ruling has delayed and or is likely to delay since its date of delivery is not certain. - c. That in the meantime the respondent has continued to build, construct, create a road and to plant trees on the plots 14 and 15 under the proprietorship of the 2<sup>nd</sup> and 3<sup>rd</sup> applicants. - d. That the said activities are alienating the suit land and altering the status quo to the detriment of the applicants who are the registered proprietors of the suit land and whose certificates of title were restored by virtue of the ruling of court in Supreme **Court Civil Application No. 28 of 2015** - e. That it is fair, proper, prudent, just and equitable that this application for a temporary injunction be granted pending delivery of the ruling in Supreme Court Civil Application No. 1 of 2020.

The application is supported by an affidavit sworn by Geofrey Katooro, the $2<sup>nd</sup>$ applicant. He avers as follows: -

- 1. "That I am a male adult Ugandan of sound mind, the 2<sup>nd</sup> applicant in this matter and well versed with all the proceedings so far and the facts of the case in which capacity I depone this affidavit in support. - 2. That I am the proprietor of Plot 14 in Block 16 land at Bukorakole, Rwensenene, Buheesi Town Council, Bunyangabu District. A certificate of title is hereto attached as Annexure GK1. - 3. That ever since this court restored my title to the said land in Supreme Court Civil Application No. 28 of 2015 hereto attached as Annexure GK2, I visited the land and during this visit, I found out that boundary mark stones had been deliberately removed and a portion of land equivalent to 1 acre rented out to a Chinese foreign construction company called China Wu Yi Co. Ltd which had excavated marram and left behind barrow pits.

$\mathcal{A}_{\mathcal{A}}$

- 4. That it is the respondent who had leased and rented out the same piece of land in the month of May, 2019 and sold marram to them. - 5. That the respondent allowed the construction of a water tank on the land by the Mid-Western Umbrella of Water and Sanitation Company. - 6. That the respondent did all these activities during the pendency of Supreme Court Civil Appeal No. 8 of 2014 and Civil Application No. 28 of 2015 whose ruling took 4 years and six months to be delivered by this Honorable Court. - 7. That I later lodged Supreme Court Civil Application No.1 of 2020 which was heard and is pending ruling on notice, during this time the respondent id busy cultivating crops, planting trees on Plot 14. A letter of complaint is hereto attached as Annexure GK3. - 8. That I believe the respondent takes advantage of Court's delay to deliver rulings and judgments to alter the status quo and subsequently claim to be in physical occupation and use of the land restored to me. - 9. That the current planting of eucalyptus trees coupled with the respondent's earlier renting out of the suit land to China Wu Yi and construction of a water tank above mentioned have adverse effects on my planned use of the land and have gravely alienated the same to my disadvantage. - 10. That the continued actions of the respondent are a great inconvenience which have denied quiet possession and enjoyment of my land and shall cause irreparable loss and damage. - 11. That I have not permitted and or granted consent to the respondent to carry out the said activities on my land as a registered proprietor nor has the respondent obtained my consent and or permission. - 12. That this application is to achieve the ends of justice, prevent abuse of process of Court and to ensure substantive justice. - 13. That it is safe, fair, prudent and reasonable for the court to grant the orders sought in the circumstances of the complainants raised herein. - 14. That whatever I have stated herein is true and correct to the best of my knowledge and belief."

$\mathcal{L} = \mathcal{L}$

The application was further supported by an affidavit sworn by the 3<sup>rd</sup> applicant, Johnson Rwaboni. He stated as follows: -

- 1. "That I am a male adult Ugandan of sound mind, the $3^{rd}$ applicant in this matter and well versed with all proceedings so far and the facts of the case in which capacity I depone this affidavit in support. - 2. That I am the proprietor of land Plot 5 in Block 16 at Bukorakole, Rwensenene, Buheesi Town Council, Bunyangabu District. A certificate of title is hereto attached as Annexure JR1 - 3. That after the delivery of the court's ruling in civil miscellaneous application no. 28 of 2015 I visited my land where I found out that several boundary mark stones had been deliberately removed and I lodged a police complaint against the respondent at Buheesi Police Post Ref. SD: 09/28/10/2019 against Moses Ikagobya for defacing, destroying and uprooting boundary marks. - 4. That I also found out that the respondent had since early 2017 during the pendency of Supreme Court Civil Appeal No. 8 of 2014 and Civil Application No. 28 of 2015 allowed and allocated a piece of land equivalent to 50 x 100 to his son Erisa Kaguju Ikagobyaa who moved to construct a permanent house which is still incomplete and not plastered and currently the respondent has constructed a road to access this house. The photograph of the house as well as the road is hereto attached as Annexure JR2. - 5. That on another part of the land, the respondent is renting out part of the land to neighbor who cultivate seasonal crops like maize, bean, sweet and Irish potatoes and cassava on part of the land and the rest is vacant. Photographs of the said gardens are hereto attached as Annexure JR3. - 6. That I have not permitted and or granted consent to the respondent to carry out the said activities on my land as a registered proprietor not has the respondent obtained my consent and or permission. - 7. That I believe the respondent takes advantage of court's delay to deliver rulings and judgments to alter the status quo and subsequently claim to be in physical occupation and use of the land restored to me. - 8. That the current act of renting out the suit land to neighbors to cultivate crops on the suit land coupled with the respondent's earlier construction of

$\mathcal{P}_{\mathcal{C}_{\mathcal{C}_{\mathcal{C}_{\mathcal{C}_{\mathcal{C}}}}}}$

a house above mentioned have adverse effects on my planned use of the land and have gravely alienated the same to my disadvantage.

- 9. That the continued actions of the respondent are a great inconvenience which have denied quiet possession and enjoyment of my land and shall cause irreparable loss and damage. - 10. That this application is to achieve the ends of justice, prevent abuse of process of court and to ensure substantive justice. - 11. That it is safe, fair, prudent and reasonable for the court to grant the orders sought in the circumstances of the complaints raised herein. - 12. That whatever I have stated herein is true and correct to the best of my knowledge and belief."

#### The application was opposed by Moses Macekenyu Ikagobya, the 135 respondent. He filed an affidavit in reply stating as follows: -

1. "That I am a male adult Uganda of sound mind, the respondent herein." I am familiar with the facts touching on this dispute, and I am competent to depone this affidavit and I swear this affidavit in this capacity.

2. That I have read and understood the contents of the notice of motion and affidavits deponed by Geofrey Katooro the $2^{nd}$ applicant and Rwabwoni Johnson the 3<sup>rd</sup> applicant and discussed the same with my lawyers of Kyagaba & Otatiina Advocates and M/s Mugabe-Luleti & Co. Advocates "my retained advocates".

3. That except where hereinafter admitted, I deny and rebut all the allegations of fact and law contained therein as being frivolous, *vexatious and an abuse of court process.*

4. That I know from reading the notice of motion and the affidavit in *support and upon advice of my retained Advocates, that this application* is frivolous, vexatious, moot, academic, incurably defective, over taken by events and an abuse of court process and ought to be dismissed with costs as:

a. It is an afterthought brought in bad faith and only intended to disrupt *my longstanding quiet enjoyment/possession of the land in question yet* this honorable court has rightly found and held that both my father and I acquired interest from previous owner and "bibanja holders" respectively. As held in Supreme Court Civil Appeal No. 8 of 2014 on

$\mathcal{P} = \mathcal{E}$

court record. A copy of the Supreme Court's judgment in this matter is attached hereto and marked "A"

$\mathcal{L}_{\mathcal{L}}$ $\tilde{\mathbf{x}}$

> b. It is an abuse of court process. Intends to prolong litigation. The applicants have mastered the art of filing frivolous suits/applications all intended to extinguish my interests in the suit land yet ownership was already determined in Supreme Court Civil Appeal No. 8 of 2014. The various applications/suits are costing me a fortune in form of resources and time.

> 5. That I know by virtue of my involvement in this matter, SC CIVIL APP. NO. 01 OF 2020 does not have any chance of success. It is frivolous and vexatious. My interest was determined in both SC CIVIL APP. NO. 28 OF 2015 and SCCA NO. 08 OF 2014.

6. That I know by virtue of my involvement in this matter, the applicants have not shown that SC CIVIL APP. NO. 01 OF 2020 has areat chance of success and how its ruling will be rendered nugatory.

7. That I have been advised by my retained Advocates, which advice I verily believe that the application is moot, academic, hypothetic and serves no useful purpose as my interest in the suit land have already been determined by this honourable court a fact well known to the applicant but briefly;

- a) The land in contention has always been and is fully fenced off and occupied by my family. This was uncontroverted and highlighted in all pleadings on court record including SC Misc. App. No. 01 of 2020. - b) The land in contention has always contained my farm and residence a fact well known to the applicants and envisaged in all *pleadings on court record and is uncontroverted; and* - c) In CA No. 28 of 2015, court clarified my interest on pages 26 and 27 of the ruling derived from the High Court judgment on pages 7,8,15 and 17. - 8. That the balance of convenience is in favour of dismissing the application with costs.

**9. That granting this application will occasion an unprecedented injustice** and is intended to prolong litigation.

### REPLY TO THE 2<sup>ND</sup> APPLICANT'S AFFIDAVIT

- 10. That in reply to paragraphs 2,3,4,5 and 6 of the affidavit in support of the application, I have been advised by Kyagaba & Otatiina Advocates whose advice I verily believe to be true, that the contents therein are an attempt to pre-empt this honorable court's pending decision in Misc. App No. 01 of 2020 and an abuse of court process. Further, - a) That the $2^{nd}$ applicant's interest in Block 16 plot 14 were fraudulently acquired, and in total of my interests, registered without my involvement and yet I have always been in occupation of the same land and it is where part of my farm is situated; - b) That I have never tampered with or altered the boundaries or mark stones of the land which was decreed to me by this honorable court: - c) That I own the land where the Chinese foreign construction company called China Wu Yi Co. Ltd for excavation of marram which company left in September 2019. I also own the parcel of land which Mid-Western Umbrella of water and sanitization company constructed its tank in 2017. The said tank was for the benefit of the entire community including the applicants. A copy of the notice of motion, affidavit in support of Misc. App No. 01 of 2020 and letter from China Wu Yi Co. Ltd are attached hereto as annexure "B1" and "B2". - 11. That the contents in paragraph 7 of the affidavit of the 2<sup>nd</sup> applicant are admitted only to the extent that the applicant has filed SC Civil Application No. 01 of 2020 and the ruling has not yet been delivered. - 12. That in further reply to the aforementioned paragraph, at all material times, I have over the past 40 years been in quiet possession cultivating crops, planting trees and animal farming. The applicants know and acknowledged this fact in all their pleadings on the court record of this honorable court in all matters they have filed over the years and that has always been the status quo. - 13. That the contents in paragraph 8 of the affidavit in support of this application are denied. That the status quo is and has always been that I am in occupation of all the land rightfully inherited from my father as

well as that bought from previous "bibanja" holders with permission from the applicants and the same has never changed. A copy of this court's ruling in CA No. 28 of 2015 and CA No. 08 of 2014 is attached hereto as annexure "C".

14. The contents in paragraph 9,10 and 11 of the affidavit in support of this application are denied. The above mentioned lawyers advised me. which advice I verily believe to be true, that I am not required to seek consent or approval from the applicants to use land which the supreme court found and decreed that I own and/or have interest in for approximately 40 years or more.

15. That in specific reply to paragraph 10 of the 2<sup>nd</sup> applicant's affidavit. I am advised by the above mentioned lawyers, which advice I verily believe to be true and correct, that the application before court is an attempt to defeat my right to quiet possession and enjoyment of my land as found by this honorable court. That this is an attempt to frustrate my constitutional rights to owning property through filing of numerous frivolous suits.

**REPLY TO THE 3<sup>RD</sup> APPLICANT'S AFFIDAVIT**

16. That in reply to paragraph 2 of the 3<sup>rd</sup> applicant's affidavit, the transfer and registration of the proprietorship was fraudulently done without my consent, knowledge or approval. I was and have always been in occupation and quiet possession/enjoyment of the same piece of the suit land for over 40 years.

17. That in reply to paragraph 3 of the 3<sup>rd</sup> applicant's affidavit, I have never tampered with or altered any boundary marks but my land has always been fenced and indeed to the contrary, it's the applicants that broke into my farm in the guise of inspecting boundaries as a result of which I lodged a complaint against them at Buheesi Police Post vide SD/20/27/10/2019 for criminal trespass and malicious damage to property.

18. That in reply to paragraph 4 of the $3^{rd}$ applicant's affidavit, the said house belongs to me together with its entrance which stops in my compound and which entrance has existed since 2016. Even if it was my son's house, I am not aware of any law that bars me from building a *house for my son on my land.*

- 19. That in further reply to the aforementioned paragraph, the said house was completed. My family and I currently occupy it. There is no construction to be halted as alleged. - 20. That in specific reply to paragraph 5 of the 3<sup>rd</sup> applicant's affidavit in support, I have never rented out the land under contention as alleged. As stated above, all the crops, property and activities referred to in the affidavit were in existence before Supreme Court Civil Application No. 1 of 2020 was heard. There is no vacant land as alleged. The garden on the land belong to me.

21. That in reply to paragraph 6,8 and 9 of the 3<sup>rd</sup> applicant's affidavit, I do not need to seek permission nor consent from anyone in order to use my land. That I have used the same piece of land for the last 40 years or more without any interruptions from the applicants. This is common knowledge to both the applicants and residents of neighboring communities.

- 22. That in reply to paragraph 7 of the $3^{rd}$ applicant's affidavit, I do not determine how long courts take to pass judgment/rulings. The status quo is and has always been that I am in occupation of the land under contention. The allegations to the contrary are falsehoods. - 23. That I swear this affidavit in reply to and in opposition of the grant of this application with its orders.

24. That whatever I have stated in this affidavit in this affidavit is true and correct to the best of my knowledge and belief save for what is stated on belief and or information, the source and basis of which I have stated."

The 2<sup>nd</sup> applicant in rejoinder stated as follows: -

- 1. "That I am a male adult Ugandan of sound mind, the 2<sup>nd</sup> applicant in this matter and well versed with the proceedings so far and the facts of the case in which capacity I depone this affidavit in rejoinder. - 2. That the averments contained in the affidavit in reply are false and have been misconstrued. - 3. That the suit property is land comprised in plots 14 and 15 and part of plot 16 whose titles were restored in favour of the applicants vide **Supreme Court Civil Application No. 28 of 2015.**

295

$\mathcal{L}^{\mathcal{L}}$ $\mathcal{A}$

- 4. That paragraphs 3,4,5,6,7,8,9,10,15,18 offend the provisions of Order 19 rule 3(1) of the Civil Procedure Rules for being argumentative. - 5. That the respondent's averments under paragraphs 1-22 are overtaken by events following the orders of the court arising out of **Supreme Court Civil Application No.28 of 2015.** - 6. That paragraph 10 admits injurious actions and alienation of land belonging to me while paragraphs 15-18 for actions against the 3<sup>rd</sup> applicant. - 7. That paragraphs 19-22 are an admission of the complaints for a temporary injunction the gist of this application. - 8. That whatever I have stated herein is true and correct to the best of my knowledge and belief."

# **Brief background.**

The facts giving arise to this application are that the applicants jointly instituted a suit against the respondent in the High Court at Fort Portal 310 for a declaration that the respondent was a trespasser on Block 16 Plot 14, 15 and part of plot 10 land situate at Bukolekole, Omuhangara, Bunyangabu county. The applicants also sought for an order of eviction and vacant possession.

The learned trial Judge ruled in favour of the respondent stating that he 315 owned a "kibanja interest" on the suit land. On appeal by the applicants, the Court of Appeal set aside the High Court judgment except that the respondent was entitled to and had a right to all that piece of land he occupies which land was first occupied by Mukirane and later by his late father. The respondent appealed to this court in Civil Appeal No. 8 of 320 2014 under which court overturned the Court of Appeal decision and restored the decision and orders of the trial court.

The applicants filed Civil Application No. 28 of 2015, for a declaration that this court's decision and orders in Civil Appeal No.8 of 2014 were

contrary to the law and should therefore be set aside and substituted 325 with the Court of Appeal decision. By the majority of 3 to 2, the court maintained its decision in Civil Appeal No. 8 of 2014 subject to a clarification that the interest the respondent has in the suit land is Kibanja and not a freehold tenure and that the applicants' registered titles remain unaffected. It is upon these orders that the applicants 330 further filed Civil Application No. 1 of 2020 which is pending ruling, hence this application for a temporary injunction to maintain the status quo.

#### **Representation.**

At the hearing, the applicants were represented by learned counsel. Mr. Kaahwa Muhumuza. The 3<sup>rd</sup> applicant was in court. Both the respondent 335 and his counsel were absent. Both parties filed written submissions.

### Submissions for the applicants.

Counsel for the applicants submitted that the applicants have a *prima* facie case that has a probability of success. He argued that Civil Application No. 1 of 2020 raises trial issues that need this court's consideration because the application challenges the legality of the kibanja interest on the suit land by the respondent.

Counsel added that the applicants will suffer irreparable damage if the application is denied. He pointed out that the respondent is subjecting the land to waste, damage, alienation by way of constructing a house, a 345 road and renting it out for marram extraction and construction of a water tank. He argued that the land will be alienated by the respondent's activities which the applicants do not have in plan for the use of their land as registered proprietors. He submitted that the activities being carried out on the suit land cannot be atomed for in damages and as such this should allow this application.

Counsel further submitted that the applicants will suffer great inconvenience if the application is denied. Counsel contended that the activities being carried out on the suit land by the respondent inconvenience the applicants and that it would be costly to clear the land. He urged court to invoke its powers under rule 2(2) of this court's rules and grant the application with costs.

# Submissions for the respondent.

Counsel for the respondent raised three preliminary objections on a point of law. Firstly, that rule 2(2) of the rules of this court under which 360 this application was brought is not applicable. Counsel cited **Orient Bank** Ltd Vs. Fredrick Zabwe & Anor, SCCA No. 17 of 2007 for the preposition that this court can decline to invoke its inherent powers under rule 2(2) where such powers do not exist in the circumstances of a case.

Secondly, counsel submitted that this court lacks jurisdiction in this 365 application. He argued that section $8(1)$ of the Judicature Act under which this application was brought is also not applicable. He pointed out that there is no substantive application before this court and thus this application is not an interlocutory matter or cause within the meaning of section 8 of the Judicature Act. 370

Counsel submitted that the court had given final orders in Civil Application No. 28 of 2015 in which this application arises and as such the dispute between the applicants and the respondent had been settled. He added that since this court give its final orders, this application cannot qualify as an interlocutory matter as prescribed under section 8(1) of the Judicature Act. In support of the above argument, counsel cited Bank of Uganda Vs. Banco Arabe Espanol, Supreme Court Civil Application No. 23 of 1999.

Thirdly, counsel submitted that rule 50(2) (b) of the rules of this court bars a single judge from hearing an application for an injunction. He 380 relied on Lukwago Erias Vs. AG & KCCA, SCCA No. 06 of **2014**(unreported) and submitted that an application for a temporary injunction can only be heard and determined by a panel of Justices and not a single Justice.

- Further, counsel argued that the law governing applications in this court 385 is rule 6(2) (b) of the rules of this court. He pointed out that Civil Application No. 1 of 2020 is not an appeal within the meaning of that rule because there is no notice of appeal filed or an appeal pending in respect of this matter. - Also, counsel submitted that the 2<sup>nd</sup> applicant's affidavit in support of 390 the application specifically paragraphs 2,3,4,5 and 6 point out the same issues in Civil Application No. 1 of 2020 which is pending ruling before this court. And that by determining the issues in this application will preempt the outcome of the pending ruling in Civil Application No. 1 of 2020 which is an abuse of court process. In support of this preposition, counsel 395 cited Male Mabirizi Vs. Attorney General, Misc. Application No. 7 of 2018.

Counsel submitted that the applicants do not have a *prima facie* case in Civil Application No. 1 of 2020. Counsel argued that the status quo is and has always been that the respondent is in possession of the land 400 inherited from his late father as well as that bought from previous "bibania" holders with permission from the applicants. He added that the application pending ruling does not raise triable issues because it only challenges the interest of the respondent which was settled in this court's decision in Misc. Application No. 28 of 2015.

It was further submitted for the respondent that the applicants did not show that they will suffer irreparable damage if this application is denied.

He cited Kiyimba Kaggwa Vs. Hajji Katende, 1985 HCB 43, where court observed that irreparable damage does not mean physical impossibility of repairing the injury but means that the injury must be substantial or 410 material one, that is, one that cannot be adequately compensated for in damages. More so, that this court had already found that the respondent owns a kibanja interest on the land and any activities carried out on the land would not cause any damage to the applicants.

Counsel also added that the balance of convenience favours the 415 respondent because he is and has been in possession of the land for over 40 years without being controverted or challenged by the applicants. He prayed court to dismiss the application with costs.

# **Consideration of the application.**

The respondent raised several preliminary objections. First is that rule 420 2(2) of the rules of this court under which this application was brought is not applicable.

Secondly, that section 8 of the Judicature Act is also not applicable since there is no substantive application for this application to be an interlocutory matter.

Thirdly that a single Judge does not have jurisdiction to entertain this application pursuant to rule 50 of the rules of this court.

I will address the first and second objections together. Rule 2(2) of this court's rules provides as follows: -

# 2. Application.

(2) Nothing in these Rules shall be taken to limit or otherwise affect the *inherent power of the court, and the Court of Appeal, to make such orders* as may be necessary for achieving the ends of justice or to prevent abuse of the process of any such court, and that power shall extend to setting aside judgments which have been proved null and void after they have been

passed, and shall be exercised to prevent an abuse of the process of any *court caused by delay.*

Section 8(1) of the Judicature Act provides: -

8. Powers of a single justice of the Supreme Court.

(1) A single justice of the Supreme Court may exercise any power vested in the Supreme Court in any interlocutory cause or matter before the Supreme Court.

The above reproduced provisions of the law as contested by the respondent that they do not apply in this matter are very clear. This application arises out of Civil Application No. 1 of 2020 filed and heard in this court. It is therefore an interlocutory matter within the meaning of section 8(1) of the Judicature Act.

This court has stated in several cases including **Hon. Theodore Ssekikubo** and 3 Ors Vs. The AG & Ors, Constitutional Application No. 4 of 2014, that:

"Rule 2(2) of the rules gives this court very wide discretion to make such orders as may be necessary to achieve the ends of justice."

I find that the two contested provisions of the law are applicable in this application. I would therefore proceed and determine its merits.

The law on temporary injunctions is contained in $0.41 r1(a)$ of the Civil 455 Procedure Rules and the principles governing the grant of a temporary injunction are well settled 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 were followed in the Ugandan case

of Robert Kavuma Vs. M/s Hotel International SCCA No. 8 of 1990, 460 which are as follows: -

- That the applicant has a prima facie case with a probability of $\mathbf{I}$ success. - 465 - That the applicant might otherwise suffer irreparable damage II. which would not be adequately compensated in damages. If the court is in doubt, on any of those two issues then, - $\mathbf{H}$ The court will decide the application on the balance of convenience

The court has also stated in the cases of Yakobo Sekungu & Ors Vs. Crensio Mukasa, Civil Appeal No. 05 of 2013 and Guiliano Gariggio Vs. 470 Claudio Casadio Civil Appeal No. 3 of 2013, that:

> "... the granting of interim orders is meant to help parties to preserve the status quo and then have the main issues between them determined by the full court as per the rules."

Paragraphs 3 to 9 of the 2<sup>nd</sup> applicant's affidavit in support of the motion 475 state as follows: -

> "3. That ever since this court restored my title to the said land in Supreme Court Civil Application No. 28 of 2015 hereto attached as Annexure GK2, I visited the land and during this visit, I found out that boundary mark stones had been deliberately removed and a portion of land equivalent to 1 acre rented out to a Chinese foreign construction company called China Wu Yi Co. Ltd which had excavated marram and *left behind barrow pits.*

4. That it is the respondent who had leased and rented out the same piece of land in the month of May, 2019 and sold marram to them.

5. That the respondent allowed the construction of a water tank on the land by the Mid-Western Umbrella of Water and Sanitation Company.

6. That the respondent did all these activities during the pendency of Supreme Court Civil Appeal No. 8 of 2014 and Civil Application No. 28 of 2015 whose ruling took 4 years and six months to be delivered by this **Honorable Court.**

7. That I later lodged Supreme Court Civil Application No.1 of 2020 which was heard and is pending ruling on notice, during this time the respondent is busy cultivating crops, planting trees on Plot 14. A letter of complaint is hereto attached as Annexure GK3.

8. That I believe the respondent takes advantage of Court's delay to deliver rulings and judgments to alter the status quo and subsequently claim to be in physical occupation and use of the land restored to me.

9. That the current planting of eucalyptus trees coupled with the respondent's earlier renting out of the suit land to China Wu Yi and construction of a water tank above mentioned have adverse effects on my planned use of the land and have gravely alienated the same to my disadvantage."

The above averments show that the status quo of the land in issue has already been tampered with. The primary purpose of a temporary injunction is to preserve the status quo until the determination of the main issue. The grant of this application would therefore be rendered nugatory because this would mean that the respondent's activities carried out on the land would stay. This is not what the applicants want. It will not help the applicants either because the damage has already 510 been done. This therefore defeats the purpose of a temporary injunction in general.

Secondly, the applicants have not satisfied this court that they will suffer irreparable damage if this application is not granted. Irreparable injury does not mean that the injury must be a substantial or material one, but one that cannot be adequately compensated in damages. See: Kiyimba-Kaggwa Vs. Hajji Abdu Nasser Katende 1985 HCB 43.

The applicants only state that the respondent has interfered with the land by cultivating, extracting marram and renting out the land. In my opinion, such activities do not constitute irreparable damage. All this 520 inconvenience caused can be adequately compensated in damages.

For those reasons, I would disallow this application. Costs shall be in the cause.

cause. Dated at Kampala this....................................

Newton Myopaba

**Ezekiel Muhanguzi**

JUSTICE OF THE SUPREME COURT.

Delivered on 9 m Feb 2021 separe

Isane

respondent

and Erra Leypunga

mr. Kognuzi

représenting

Ote applicant


$1$ gm