Kyamufumba & Another v Namagembe & Another (Civil Appeal 10 of 2022) [2023] UGHC 408 (8 August 2023)

## **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT MASAKA**

## **CIVIL APPEAL NO. 10 OF 2022**

## **(ARISING FROM MISCELLANEOUS APPLICATION NO.37 OF 2022**

# **(ARISING FROM CIVIL SUIT NO.05 OF 2022)**

# **1. YAWE PAUL KYAMUFUMBA**

### **(ADMINISTRATOR OF THE ESTATE OF THE LATE DR. LULE JOHN)**

### **2. FLORENCE NAKIBUUKA LULE:::::::::::::::::::::::::::::::APPELLANTS**

### **VERSUS**

#### **1. NAMAGEMBE MARY**

### **(ADMINISTRATOR OF THE ESTATE OF THE LATE DR. LULE JOHN)**

# **2. SSENYONJO BOSCO::::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS**

## *Before; Hon. Justice Victoria Nakintu Nkwanga Katamba*

# **JUDGMENT.**

Introduction.

The Appeal is against the ruling and orders of the Learned Deputy Registrar, His Worship Borore Julius, delivered on 11th May 2022 in Miscellaneous Application No.37 0f 2022.

The Appellants sought the followings orders;

- 1. The Ruling and orders of the Learned Deputy Registrar be set aside. - 2. The execution of the said orders be stayed. - 3. Costs of the Application/Appeal be provided for.

Background to the Appeal.

The 1st and 2nd Appellants as co-plaintiffs filed Civil Suit No.5 of 2022 against the Respondents as Co-defendants. With the suit pending, the Plaintiffs filed Miscellaneous Application No.37 of 2022 seeking a temporary injunction against the Respondents to prevent the Respondents from intermeddling with suit property that formed part of the estate of the late Dr. Lule John until full determination of the main suit.


The Learned Deputy Registrar dismissed the Application premised on the fact that the Applicants failed to prove that they would suffer irreparable damage if the temporary injunction is not granted and that there was no status quo to be maintained because the 1st Respondent as one of the Administrators of the estate of late Dr. Lule John had already filed an inventory with the Court.

Being dissatisfied with the ruling, the Appellants lodged an Appeal based on the followings grounds as can deduced from the notice of motion;

- 1. The Learned Deputy Registrar erred in law and fact when he held that the status quo on the suit property had changed because there is an estate distribution inventory/account which was signed by a single administrator that has not been set aside. - 2. The Learned Deputy Registrar erred in law and in fact when he held that according to the inventory and estate account of the 1st Respondent, the estate was distributed and the 1st Applicant obtained ownership or interest in Kibanja at Samaliya-Kako, a plot of land with a house thereon in Mubende, 36.7 Hectares of land at Bisagala, Kasenyi and Kanyongoga and 7 acres of land in Kagasa of which, the properties have never been owned by the 1st Applicant - 3. The Learned Deputy Registrar erred in law and in fact when he failed to resolve the issue of demolition of houses on the suit land by the 2nd Respondent. - 4. The Learned Deputy Registrar failed to properly evaluate the evidence on record and therefore reached a wrong decision.

The notice of motion was supported by an affidavit deponed by the 1st Appellant, where he states as follows that;

- 1. The 1st and 2nd Appellants filed Civil Suit No.05 of 2022 against the 1st and 2nd Respondents challenging the sale of land comprised in Buddu Block 325 Plot 2574 at Bukoto sub County Masaka which forms part of the estate of the late Dr. Lule. - 2. The 1st Respondent together with the Appellants are co-Administrators to the estate of the late however, the 1st Respondent sold the estate property without the Appellants approval and contrary to the distribution scheme agreed. - 3. On 6th January 2022, the 1st Respondent illegally and fraudulently sold the estate land to the 2nd Respondent. - 4. On 11th February 2022, the 2nd Respondent brought a tractor and destroyed some of the structures on the estate (suit) land.


5. The Appellants filed an Application for a temporary injunction however, the same was dismissed premised on the fact that an inventory had been filed and yet the estate of the deceased has never been distributed and none of the beneficiaries has ever obtained their share.

6.

- 7. That the Learned Deputy Registrar erred in law when he held that the Appellants had obtained ownership of other properties forming part of the estate property. - 8. The orders of the Learned Deputy Registrar have occasioned a miscarriage of justice because the 2nd Respondent continues to evict tenants and destroy structures albeit having purchased the land on account of fraud and illegality. - 9. The estate of the late will suffer irreparable damage if the 1st and 2nd Respondents are allowed to conclude their transaction.

The 1st and 2nd Respondents each filed responses to the affidavit in reply. In the considering the 1 st Respondent's affidavit first, she states as follows, that;

- 1. Her co-administrators have been un-cooperative and that she duly distributed the estate property to all the beneficiaries. - 2. She duly filed an account of the distribution. - 3. When she, together with the other beneficiaries received their share of the estate property which included the suit land, they took possession and occupation of the same. - 4. She, together with other beneficiaries later got financial difficulties and they opted to sell the suit land to the 2nd Respondent. - 5. The 2nd Respondent has never destroyed any properties on the suit land. - 6. The 1st Respondent is in occupation of one part of suit land while the 2nd Respondent is at the moment in occupation of another part of the suit land. - 7. The Learned Deputy Registrar did not error in his findings because according to the inventory exhibited, the suit land constituted her share in the estate property.


- 8. The 2nd Respondent lawfully purchased the suit property from the 1st Respondent and the other beneficiaries entitled to the property. - 9. The Appellants shall not suffer irreparable damage because they have never been in occupation of the suit property and that it is the 1st Respondent and the beneficiaries entitled to it that have been in occupation of it. - 10. The Respondents shall suffer great loss if the appeal is granted because the 1st Respondent is in occupation of the part of the suit land while the 2nd Respondent is in occupation of another part on which he carries out economic activities.

In the 2nd Respondent's affidavit, he states as follows, that;

- 1. He was informed by the 1st Respondent that she duly distributed the estate property to all the beneficiaries including the Appellants. - 2. He lawfully purchased suit land (estate property) from the 1st Respondent. - 3. Before he purchased the property, he carried out due diligence and established that the suit land was a share of the 1st Respondent and the children of the late Namukwaya Anna and Nalule Jane. - 4. He has neither brought security personnel to the suit property nor demolished any structures on the suit land. - 5. He is in possession of part of the suit land while the 1st Respondent is in possession of the other part.

The Deponent thereafter reiterates the averments of the 1st Respondent.

In rejoinder. the 1 st Appellant deponed as follows, that;

- 1. The estate has never been distributed and it was the 1st Respondent who was uncooperative. - 2. The beneficiaries are not even aware of the distribution. - 3. He was duly authorized to swear an affidavit on behalf of the 2 nd Appellant. - 4. The main suit was filed when the pit latrine was demolished however, the 2nd Respondent has now demolished part of the structures on the land and he intends on demolishing all the structures on the land. - 5. The Appellants are in possession of the suit land and they turned the same into a commercial house.


6. The 2nd Respondent is not in possession but he simply demolished structures and that even as per the sale agreement between the Respondents, the 2nd Respondent can only take possession after payment of the Ugx. 20,000,000/= balance.

I have perused the entire affidavit and I considered it necessary to only restrict myself to the grounds necessary to support this Appeal.

The Parties filed written submissions and two issues were raised for determination;

- 1. Whether the Learned Deputy Registrar erred in law and in fact when He dismissed the Application for a temporary injunction? - 2. What remedies are available to the Parties?

The Respondents raised a preliminary objection that is; **the notice of motion does not bear the Court Seal.**

# **Submissions for the Respondents on the Preliminary Objection.**

Counsel for the Respondents submitted that the Notice of motion does not bear the seal of Court. Counsel submitted that this is an irregularity because court summons must bear the seal of Court and where the Summons do not comply with the requirement, they are invalid. Counsel relied on Order 5 Rule 1(5) of the Civil Procedure Rules and the case of Isingoma Michael versus Law Development Centre, HCMA. No.234 of 2019.

# **Submissions for the Appellants on the Preliminary objection.**

Counsel admitted that the notice of motion did not bear the seal of the Court. Counsel submitted that it was the 1st Applicant who is a lay person that retrieved the summons and that the Court registry staff issued the summons well knowing the same was not injurious to the Parties.

Counsel relied on the case of DFCU Bank Ltd versus Meera Investments and Another, Misc. Application No.283 of 2018 to support his submission that although in practice the notice of motion carries a signature of a judicial officer and a seal of Court, the above are not legal requirements and an omission of them does not render the notice of motion fatal.

While relying on Article 126(2)(e) of the Constitution, Counsel submitted that justice should be administered with undue regard to technicalities.

# **Determination of Preliminary objection.**

A preliminary objection consists of an error on the face of the pleadings which rise by clear implication out of the pleadings and which, if argued as a preliminary objection may dispose of


# the matter. (See: *Mukisa Biscuits Manufacturing Co. Ltd. versus West End Distributors Ltd (1969) EA 696*.)

It was submitted that the notice of motion does not bear the seal of Court and it is therefore invalid.

It is not in dispute that the notice of motion bears the signature of the Deputy Registrar and the stamp of the Registry. However, the notice of motion does not bear the seal of the Court.

I take judicial notice of the fact that the Court is the custodian of the Court seal and is further responsible for making sure that documents submitted to the Court registry and require sealing, are sealed.

It is evident from the notice of motion that the Application was received by the High Court registry on the 26th May 2022. I can therefore only attribute non sealing to a mistake or over sight on the part of the Court officials. It is also my opinion that Counsel for the Applicant was also under an obligation to ensure that the document was in order before the same was served.

In *the Executrix of the Estate of the Late Namatovu versus Noel Grace Shalita Stananzi, SCCA. No.08 of 1988*, Counsel requested the lower Court for a record of Appeal. The record of Appeal was duly delivered but it later turned out that the record of Appeal was incomplete which later affected the litigant's Appeal. The Error was attributed to the Court official who failed to deliver up a complete record of Appeal and the Learned Counsel who failed to ensure that the record of appeal was in order before filing the same. *Odoki J. S. C* as he then was observed that mistakes and lapses on the part of Court officials and less than diligent conduct on part of Counsel should not be visited on an innocent litigant.

It is my observation that as much as the facts of the above case may differ from those in this Appeal, the case is instructive on how lapses on the part of Court officials affect litigants and how such scenarios should be addressed by Court. Am alive to the fact that *Order 5 Rule 1(5)* of the *Civil Procedure Rules SI 71-1* makes it mandatory for Court documents to bear a seal of Court and a stamp of the Judicial officer or another person with authority to do so. This in my view creates an obligation on the Court to duly seal documents as well as a duty on the Applicant to also ensure that upon filing, the documents are duly sealed. It would therefore occasion an injustice to punish a litigant for a duty that is largely imposed on Court. The circumstances would be very different if the notice of motion did not bear the signature of the judicial officer, a stamp of the court registry or the seal of Court all together. I therefore find that it would occasion a miscarriage of justice if the Appellant is punished for lapses by Court officials or Counsel.

I also observe that the administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits and that errors and lapses should not necessarily debar a litigant from the pursuit of their rights. (See: *Esanji versus Solanki (1968) EA 223*).


For the reasons above, I consider it necessary to overrule the preliminary objection raised and this Appeal shall be determined on its merits.

#### **Submissions for the Appellants on the merits of the Appeal.**

It was submitted that the purpose of a temporary injunction is always to preserve the status quo. It was further submitted that the Applicant had proved existence of a prima facie case because the Applicants at trial intend on the challenging sale of the estate property by the 1st Respondent to the 2nd Respondent.

On irreparable damage, it was submitted that the Applicant's and other beneficiaries derive sustenance from the suit property and if the injunction is not granted, the Applicant's shall loose the source of their sustenance which cannot be atoned for with damages.

#### **Submissions for the Respondents.**

Counsel conceded that a prima facie case had been established. On Status quo, Counsel submitted that the suit property is in possession and occupation of the Respondents and there is no threat to the Applicants' claims and that the inventory was already filed.

On irreparable damages, counsel submitted that according to the inventory filed in the Court, the suit property passed to the 1st Respondent almost 5 years ago and as a result, the Applicants will not suffer any irreparable damage. Counsel also agreed with the finding of the Learned Trial Magistrate that the Applicants derived sustenance from other properties and therefore, they shall not suffer irreparable damage with respect to the suit property.

### **Determination of Appeal.**

# **1. Whether the Learned Deputy Registrar erred in law and in fact when he dismissed the Application for the temporary injunction.**

The duty of a first appellate court is to re-evaluate/reappraise the evidence on the court record. (See: *Fr Narsensio Begumisa & Ors -v- Eric Tibebaga, SCCA. No. 17 of 2002*).

A temporary injunction is the preservation of the suit property and the maintenance of the status quo between the parties, pending the disposal of the main suit and granting of a temporary injunction is discretionary in nature. (See: *Okello Samuel and others versus Bonnie Rwamukaaga and others, HCMA. No.127 of 2019*).

Considering that the granting of a temporary injunction is discretionary, this Court shall only interfere with such discretion if it is established that in exercising his discretion, the Learned Deputy Registrar misdirected himself in some matter and as a result arrived at a wrong decision. (See: *NIC versus Mugenyi [1987] HCB 28*).


In *Kiyimba Kaggwa versus Katende, [1985] HCB 43*, it was held that the conditions for the grant of an injunction are; *the applicant must show a Primafacie case with a probability of success and such injunction will not normally be granted unless the appellant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages. If the court is in doubt, it will decline an application on the balance of convenience.*(emphasis mine)

The Respondents' Counsel conceded that the Applicants established a prima facie case. As a result the main issue in contention is whether the Learned Deputy Registrar rightly observed that the Appellants would not suffer irreparable damage.

In *Kiyimba Kaggwa versus Katende* (supra), it was observed that irreparable injury does not mean that there must not be physical possibility of repairing injury, but it means that the injury must be a substantial or material one, that is, one that cannot adequately be compensated for in damages.

In determining the issue on irreparable damages, the Learned Deputy Registrar observed that the Applicant had alleged that they derive sustenance from the suit land and are likely to suffer hunger if the injunction is not granted however, according to the inventory filed by the 1st Respondent, the 1 st Applicant had obtained ownership of another piece of estate land and it was therefore false for the Applicant to allege that he derives sustenance from the suit property and yet there are a host of other properties from which they derive sustenance. On the basis of the above, the Learned Deputy Registrar held that the Applicants failed to prove irreparable damage and further, any damage occasioned would be atoned for in compensation awards.

It is my humble observation that in looking at who would suffer damage, the Learned Deputy Registrar applied a very narrow approach. The Learned Deputy registrar largely considered the damage in the context of the Applicants specifically. However, it was important to consider the fact that besides being beneficiaries, the Applicants are also administrators and as Administrators the estate, they are the custodians of the deceased's estate holding the same in trust for all beneficiaries. (See: *Hadadi Mohamed Rajab and 5 others versus Muzamali and 2 others, HCCS. No.188 of 2015*).

The above means that if there was a loss or damage to be occasioned, the damage would not only affect the Applicants specifically but the entire estate including the beneficiaries. It was therefore important to look at irreparable damage not just in the context of the Applicants but the estate and the beneficiaries as a whole.

I note that there is no dispute to the fact that the suit property (estate property) is subject to a sale agreement between the 1st and 2nd Respondent and by the Respondents' assertions, the 1st Respondent and 2nd Respondent are both in occupation of the suit land. It is also not in dispute that the property subject to the sale was a residential home and from the evidence of the Photostats, I am not in doubt that there are demolitions going on. What is also clear is that the entire suit land has been sold by the 1st Respondent to the 2nd Respondent awaiting completion of formal processes to complete the transfer as per the sale agreement.


If the temporary injunction is not issued, these formal processes and demolitions are most likely to progress and yet the main suit is pending in which the legality of the sale by the 1st Respondent to the 2nd Respondent is an issue being challenged in the main suit.

In now specifically addressing the issue of irreparable damage, as to whether all beneficiaries have received their dues under the estate is something to be resolved in the main suit. If the status quo is not maintained and the conveyance and demolition works proceed, the beneficiaries lose not only their share in the estate and structures from which they derive sustenance but also a home. And these are things that cannot easily be atoned for by way of compensation. The main suit would also be rendered nugatory. (See: *Nakanjako and 3 others versus Ssekubunge, HCFD MA. NO.22 of 2018* and *Mutumba Zaituni versus James Mutumba and 2 others, HCMA. No.1536 of 2017 for the propostion that loosing a home amounts to irreparable damage*.).

It is also my observation that the Learned Registrar largely based his findings on the inventory filed by the 1st Respondent indicating that she had duly distributed the estate. I find this to be an error because the inventory in question in my view forms part of the issues subject to litigation in the main suit and placing a lot weight on the same would to a greater extent validate the distribution and sale of the estate property.

On the observations above, I consider it necessary to protect the interests and shares of all beneficiaries as a whole in the suit the property until the main suit is determined by setting aside the decision of the Learned Deputy Registrar and granting a temporary injunction.

### **Conclusion and orders.**

- 1. The decision and orders of the Learned Deputy Registrar are hereby set aside. - 2. A temporary injunction is hereby issued against the Respondents, their agents or employees from building, constructing, demolishing, renting out,, cultivating thereon, alienating and causing waste or any damage to the suit property until determination of the main suit. - 3. The costs of the Application shall follow the outcome of the main suit.

I so order.

Dated and delivered electronically at Masaka this 8th day of August 2023.