Lubulwa v Kanakulya and Others (Miscellaneous Application 59 of 2024) [2025] UGHC 226 (25 April 2025)

#### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA

### AT LUWERO

## **MISCELLANEOUS APPLICATION NO. 059 OF 2024**

### (Arising from Miscellaneous Civil Suit no.33 of 2024)

LUBUULWA MOSES :::::::::::::::::::::::::::::::::::

#### **VS**

#### 1. KANAKULYA BADIRU

- 2. KASULE KAWOOYA CORLINE DEUSDEDIT - 3. MARTHA KOMUGISHA - 4. COMMISSIONER LAND REGISTRATION::::::::::::::::::::::::::::::::::::

#### **BEFORE HON. JUSTICE GODFREY HIMBAZA**

#### RULING.

- 1. The Applicant brought this application by Chamber Summons under Section 98 of the CPA, Section 33 of the Judicature Act OXLI Rules 1,3 and 9 of the Civil Procedure Rules. - 2. The application sought for a Temporary Injunction restraining the respondents, their agents, servants or persons claiming under them from selling, subdividing, mortgaging or making any dealings, constructions or developments on the land or electing any structures on the suit land comprised in Bulemezi Block 69 Plot 8 at Kirungira in Luwero District pending the determination of the main suit. It also sought costs of the application to be provided for. - 3. The application was supported by the affidavit of the applicant and the following were the grounds in support of the application. - a) The applicant lawfully bought the land from the 1st respondent - b) The applicant is in possession of the suit land after grading it and utilizing it for cultivation and rearing animals.

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- c) The applicant lodged a caveat to protect his interest. - d) The applicant obtained a court order maintaining the status quo of the suit land which was ignored and disregarded by the respondents. - e) The suit land is in danger of being alienated by the respondents much to the detriment of the applicant which will cause him irreparable injury. - f) The applicant has a prima facie case against the respondents which has a reasonable possibility of success. - g) The applicant has filed a Civil Suit in this honourable court which raises multiple triable issues of law and fact and also has a high probability of success. - h) The applicant is likely to suffer irreparable harm if an injunction is not granted. - i) The balance of convenience lies in favour of the applicant who is the lawful and rightful owner of the suit land. - 4. The l"t respondent filed an affidavit in reply on 3Oe April 2024 opposing the application for injunction and the grounds advanced in opposition to the application are as follows; - a) The application is fatally defective , an abuse of court process full of falsehood information. - b) That he has never entered any sale agreement with the applicant in regard to the land in question - c) That the lst respondent is not the owner of the land and that all the applications being referred to were entered in error and thus dismissed for lack of merit. - d) That the applicant has not demonstrates any damage that cannot be atoned by damages. - e) That court cannot grant an injunction arising from a frivolous suit. - 5. The 2"d respondent also filed an affidavit in reply opposing the application on the following grounds;

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- a) This application is bad in Law and misconceived and should be dismissed with costs - b) The 2trd respondent purchased the suit land from the registered proprietor after conducting a search and the caveat had been lodged after he purchased. - c) That the 2"d respondent is a Bonafide purchaser for value having done due diligence before purchasing the said land and confirmed that the same belonged to the seller/ 1st respondent. - d) That he purchased the land in good faith ,paid valuable consideration for the same and without prior notice of any adverse claim and that he is in possession of the land. - e) That the suit land already has third party interests which are not a party to the suit, therefore injuncting the same will be prejudicial to the interests and contrary to the principles of fair hearing. - f) That the applicant's case has no likelihood of success and that the applicant shall not suffer irreparable damage. - g) That balance of convenience tilts in his favour since he's in possession of the land and the registered owner. - 6. The applicant filed affidavits in rejoinder to the 1"t and 2"d affidavits in reply and generally averred as follows; - a) He was the first to purchase the suit land from the 1st respondent on 19ft October 2020 before the 2nd respondent purchased the same land rn 2023 and the respondent lodged a caveat to that effect. - b) That the 2nd respondent got fraudulently registered on the land comprised in Bulemezi block 69 plot 8 after a fraudulent transfer into his names and the same was backdated to 23,d January 2023 by the 3'd respondent since the said entry did not reflect on the search certificate issued on the 4ft October 2023 by the third respondent. - c) That the Consent order was aimed at maintaining the status quo of the suit land until determination of the main application and also to protect

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his interests as first purchaser of the land and that was before the fraudulent transfer of the suit land to the 2"d respondent.

- d) That after purchasing the land, on 19fr October 202O, he took possession thereof, graded it and started utilizing it by cultivating and rearing animals and therefore the due diligence done was not enough. - e) That injuncting the suit land is in the interest of justice and it will not prejudice anyone's interests until the honourable court pronounces itself on who is the rightful owner of the suit land. - f) That the suit raises multiple triable issues of Law and fact and has <sup>a</sup> probability of success - g) That he is likely to suffer irreparable damage if an injunction is not granted. - h) That he paid consideration to the lst respondent for the land and took possession thereof.

# 7. l\*gal Representation

At the hearing of the application, the applicant was represented by Counsel Nakasinde Mary Rose holding brief for Counsel Ssebugwawo Andrew, the lst respondent was represented by Counsel Semanda David Male while the 2"d respondent was represented by Counsel Richard Tamale. The parties were directed to lile written submissions which the court has considered while deciding this application.

# 8. Consideration ofthe appllcation by Court.

# 9. Submissions of the Applicant.

The applicant argued that he entered a sale agreement with the 1"t respondent where the applicant lawfully bought the suit land comprised in Bulemezi Block 69 plot 8 at Kirungira in Luwero District measuring approximately 4:050 Hectares on the 19s day of October 2O2O from the l"t respondent.

10. The applicant took possession of the suit land , graded it and started utilizing it by cultivating on it and rearing animals. The applicant went ahead and lodged a caveat on the suit land to protect his interests. The

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applicant also obtained a Court Order maintaining the status quo of the suit land which was ignored and disregarded by the respondents.

- 11. The applicant however found out that the hrst respondent had sold the suit land for the 2"d time to the second respondent in 2022 without the applicant's knowledge or consent. That the suit land is in danger of being alienated by the respondents much to the detriment of the applicant which will cause him irreparable injury. - 12. Counsel for the applicant relied on O.41 rule 1 of the Civil Procedure Rules which provides for temporary injunctions. He also relied on section 98 of the Civil Procedure Rules that grants this court inherent powers to make such orders for the ends of justice or to prevent abuse of court process.

Counsel relied on the authority of Godfrey Ssekitoleko & Ors Vs Sezl Mutabazi & Ore (2OO2-2OO5| HCB, where the Court of Appeal made it clear that court has a duty to protect the interests of parties pending the disposal of the substantive suit. He also relied on the case of Legal Brains Trust (LBT) Ltd Vs Attorney General & Anor. Misc. Application No. 638 of 2Ot4 where it was held that an injunction is a Court order requiring an individual to do or omit doing a specific action. It is an extra ordinary remedy that courts utilize in special cases where preservation of the status quo or taking some specific action is required in order to prevent possible injustice.

## 13. Submlssione for the respondents.

The respondents submitted that the application lacks merit and that the same should be dismissed. They argued that the applicant lacks a cause of action in the main suit for her to merit a grant of an injunction. The respondents argued that the suit violates the rule of lis pendens embedded in section 6 of the of the Civil Procedure Act which provides that' No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directlg and substantiallg in issue in a preuiously instituted suit or proceeding betueen tle same parties or betuteen parties under tuhom theg or any of them claim, litigating under the same title, where the suit is pending

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in the same or ang other court hauing jurisdiction in Uganda to grant the relief claimed.'

14. Counsel submitted that there was another earlier suit filed by the applicant which according to counsel, bars a similar subsequent suit to be hled in the same court seeking same remedies.

## 15. Rejoinder submiaeiong.

In rejoinder, the applicant averred that the suit does not violate the Lis pendeas rule because under Civil Suit no. HCT- I 7-LD-C S-O297 -2023, th,e 2"d respondent was not a party to the suit and the said suit was against the 1"t respondent KANAKULYA BADRU , the cause of action was breach of a sale Agreement and the prayers included orders against the lst defendant( lst respondent) to hand over the land title to the plaintiff (applicant), plus an order for specihc performance of the sale agreement/ contract to transfer the suit property into the names of the plaintiff .

16. However, according to counsel for the applicant, under Civil suit no 33 of 2O24(the current suit) from which this application no. 059/2024 arises, the 2nd respondent is a party to the suit and the cause of action in this new suit is fraudulent transfer of the said land title into the names of the 2nd respondent and he prays for cancellation of the illegal entry of the 2"d respondent's names onto the land title. Counsel distinguished the case of

SPRING INTERNATIONAL HOTEL LTD VS HOTEL DIPLOMATE LTD & ANOR. CML SUIT NO. 227 of 2Ol las cited by the 2na respondent.

## 17. Determination of the application by Court.

I have carefully considered the affidavits and submissions of both parties, I have also perused the authorities provided by counsel for the respective parties.

18. I will not deal with the issue of lls pendens as the two suits were consolidated and are pending hearing in this court. This objection is therefore overtaken by events. I shall therefore straight away deal with the merits of the application for temporary injunction.

t,;t",- 19. The jurisdiction of this Court to grant a temporary injunction stems fromO.4l rl of the CPR and under 1(a), it is stated as follows;

' The Court rnay by order, graut a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing the wasting , alienation, sale ,removal or disposing of the property as the court thinks fit until the disposal of the suit or until further orders'. Court also derives power under Section 98 of the Civil Procedure Rules.

- 2O, The power to grant temporary injunction is discretionary and the discretion must be exercised judiciously. Furthermore, the purpose of granting an injunction is to preserve the status quo until the determination of the main suit. see Godfrey Ssekitoleko & ors vs Sezi Mutabaazi & ors (2OO2-2OO5) HcB - 21. The conditions precedent for the grant of an order of a temporary injunction were discussed in ROBERT KAVUMA VS HOTEL INTERNATIONAL SCCA NO. 8 of 199O wherein Wambuzi CJ (as he then was stated as follows;

" It is generally accepted that for a temporary injunction fo issue the court must be satisfied that:

- i. The applicant has a pima facie case with a probabilitg of success. - ii. That the applicant might otherutise suffer ireparable damage uhich toould not be adequatelg compensated for in damages. - iii. If the court is in doubt, on the aboue two points, then the court will decide the application on the balance of conuenience. In other uords , uthether tLrc inconueniences uhich are likely to ensue from withholding the injunction would be greater than those which are likelg to arise from granting it". Also see American Cynamid Co. vs Ethlcon Ltd 919751 AC 396.

The task before me is to determine whether or not the applicant has met these conditions.

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## 1, Prima fascie case with a likelihood of success.

The Supreme Court in the case of Gashumba Maniraguha vs Sam Nkundiye Civil Application no.24 of 2O15 held that the likelihood of success is the most important consideration in an application for <sup>a</sup> temporary injunction. Therefore it is incumbent upon the applicant to avail material to the court which would enable it to establish whether or not the applicant has a prima facie with a likelihood of success. This the applicant does it by showing that there are bonafide triable issues, and that the case is not frivolous and vexatious. See Kiyimba Kaggwa vs Katende (f9851 HCB 43.

- 22. Counsel for the applicant argued that he bought the suit land from the 1"t respondent at valuable consideration and an agreement of purchase was dully executed. He argued that the 1"t respondent then connived with the 2.d respondent to deprive him ofthe land by selling it to the 2"d respondent with the assistance of the 3rd and 4s respondents. - 23. Counsel for the respondents on the other hand argued that the applicant never bought the land from the lst respondent and that it is the 2"4 respondent registered on the title and that he is actually in occupation of the suit iand. It is clear that the applicant hled a suit vide Civil Suit no. 033 of 2024 which is pending consideration of this court. - 24.lndeed I agree with the applicant , that there are Bonafide triable issues for determination by this court such as ; - i) Whether the applicant bought the suit land from the l"t respondent. - i) Whether the sale between the first and second respondent was lawful and whether the transfer of the title into the 2.d respondent's names was lawful. - ii) Whether the applicant had lodged a caveat on the title and whether its removal if at all, was lawful - 25. I find that the main suit poses several questions that merit determination by this honourable court, and I also find that the suit that was filed by the

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applicant is not frivolous and vexatious and presents itself with arguable issues. In the case of Rajab Ssempereza Vs Shem Mukasa & Anor. Court of Appeal Civil Applicatlon no. O25S ol 2024, Kihika JA while determining whether the applicants had an arguable appeal cited the persuasive decision of Court of Appeal of Kenya in Stanley Kang'ethe Klnyanjui vs Tonny Ketter & 5 others (2013) e KLR where an arguable appeal was described as follows;

" An arguable appeal is not one uthich must necessailg succeed but one rahich ought to be argued fully before the court, one which is not fiuolous and in considering an application brought under Rule 5 (2) (b), (for <sup>a</sup> temporary injunction)the court must not make definitiue or final findings of either fact or lana at that stage as doing so maA embarrass the ultimate heaing of the main case". I hereby draw an analory from the above cited authority and find that it is not the duty of this court to pre-empt consideration of matters for trial but to determine whether there exists a prima facies case

- 26. Indeed the 2nd respondent's counsel conceded to this point when he cited the case of Amerlcan Cyanamid Co. Ltd Vs Ethicon (19751 1 ALLER 5O4 where Lord Diplock explained that for an applicant to prove a prima facie case, all that an applicant has to show is that there is a serious question to be determined and that the action is not frivolous and or vexatious. Counsel cited the case of Nabyozi Racheal Vs Namiiri Susan & anor Misc. Application no. 882 of 2O2O, where Lady Justice Olive Kazaarwe, quoting O.7 r 11(a), (d) and (e) CPR and Zachary Olum & Anor VS Attorney General Constitutional Petition no. 6 of 1999, said that court would dismiss any action which is frivolous in the sense that the pleadings do not disclose any reasonable cause of action. - 27.ln the instant application, I have carefully perused the pleadings of the applicant in the main suit, I find that his action is not frivolous nor vexatious , and that it raises Bonal-rde triable issues that merit

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consideration by this court. I am satisfied that the applicant has established a prima facie case.

## 2. Irreparable damage

The second consideration in an application for a temporary injunction is whether the applicant will suffer irreparable damage or that the suit will be rendered nugatory if an injunction is not granted.

- 28. Counsel for the applicant argued that irreparable damage does not mean that there must not be physical possibility of repairing the injury but must be a substantial or material one. He cited the cases of Kiyimba Kaggwa ( supraf, Tonny Wasswa Vs Joseph Kakooza (19871 HCB 79 and Byarugaba Vs Muhoozi & anor Misc. Appllcatlon no. 2LS of 2OL4, - 29. He argued that the lst and 2"d respondents are threatening to demarcate ,sub divide and sale the suit land. He relied on paragraph 9 of the aflidavit in support of the application as well as annexture H to the affidavit, to buttress his argument. For avoidance ofdoubt, paragraph 9 of the affidavit in support reads as follows;

" 9. That to mg dismag, I found out later that the respondent had sold tle suit land again to the 2tld respondent and the land title uas fraudulentlg transfered into the names of the 2"d respondent on tlrc 23d January 2O23 at 1 1.36 am under instrument number LUW-00032652 bg tlle 3,d respondent the same person who issued a search certificate on 4th October 2023 ruhich neuer shou.rcd that the 2,d respondent was the registered propietor of the suit land hence prouing the fraudulent transfer bg the respondents"

30. The 2"d respondent on the other hand , relied on the case of American Cyanamid Co. Ltd Vs Ethicon Ltd (Supra) where it was held that'if the damages in the measure recoverable at common law would be an adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted , however strong the plaintiffs claim appeared at that stage'. Counsel argued that in the instant suit, the applicant has not shown the kind of damage that he will suffer as he is not the registered proprietor and that his claim for the property

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comes after the propert5r was registered in the names of the 2"a respondent and other third parties who are not party to the suit. More so, that the 2nd respondent has already provided evidence to the effect that there ere other persons he has sold to and are already in possession and not a party to the suit.

## 31. Courts determinatlon of this ground

- 32. In my understanding, the applicant has to show that the damage bound to be suffered is such that it cannot be undone or compensated for in damages. In Geilla vs Cassman Brown & Co. (1973f E. A 358 it was held that by irreparable injury, it does not mean that there must be physical possibility of repairing the injury but it means that the injury or damage must be substantial or a material one that is , one that cannot be adequately atoned for in damages. - 33. Much as it may be true that the applicant's damage or injury is capable of being atoned in damages, I also note that the purpose of an injunction is to maintain the status quo until the suit is disposed off. The purpose is to preserve the status of the property in its state, without it being alienated, transferred ,sold or damaged/wasted. The injunction does not affect the persons in occupation of the property. If the 2"a respondent is in occupation of the properfy and is currently the registered owner on the title, the injunction if granted would only restrain him from alienating, selling, transferring or disposing off the property until the suit is determined. It does not mean that the respondent looses possession or ownership of the same. I do not see any party to the suit being inconvenienced or suffering any injustice if the injunction is issued to preserve the property in its state until the determination of the main suit. - 34. Having found as I have above, I find no reason to consider the issue of balance of convenience for reasons that court should only consider the balance of convenience where it is in doubt. - In the result, this application is granted with the following orders.

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- 1. A Temporary Injunction is hereby issued restraining the Respondents, their agents, representatives, assignees or nominees from selling, subdividing, mortgaging or making any dealings . construction or developments on the land or erecting any structures on the suit land comprised in **Bulemezi** Block 69 Plot 8 at Kirungira in Luwero District until the determination of the consolidated suits to wit **HCT-17-LD-CS-**0297-2023 and Civil Suit no. 33 of 2024. - 2. Costs shall abide the outcome of the consolidated suits.

I so order

5<sup>TH</sup><br>APRIL .......day of ................................... Dated this ....

GODFREY HIMBAZA **JUDGE**