Meera Investments Ltd v National Water and Sewerage Corporation and Another (Civil Application 285 of 2016) [2017] UGCA 150 (24 January 2017)

Full Case Text

# 5 THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA

### AT KAMPALA

# CIVIL APPLICATION NO. 285 OF 2OL6

Meera Investments Limited Applicant

#### 15

#### YERSUS

. National Water & Sewerage Corporation 1

. SOGEA SATOM Limited Respondent 2

Coram: Before Hon. Mr. Justice Remmy Kasule, JA, sitting as a single Justice

# RULING

The applicant seeks an interim order of injunction to restrain the respondent from carrying out construction works whereby sewerage

30 pipes are placed on the applicant's land comprised in Plot 6 Hill Crescent, Plots 1A-8A Plots 30-35 Mukabya close, Banda-Kampala.

The application is brought under Rules L,2121,6(b) and 76 of the Judicature (Court of Appeall Rules: SI: 13-10. It is supported by affidavits of Dr. Sudhir Ruparelia, a director of the applicant. The respondent filed an affidavit in reply in opposition to the application. It is deponed to by Mr. Craven N. Barigre a Senior Legal office, otffir"pondent.

At the hearing Counsel Joel Olweny appeared for the applicant while advocate Sebuwufu Usaama was for the respondent.

40 45 By way of background, the applicant as owner of the stated suit land,sued the respondents in the High Court at Kampala through High Court Civil Suit No. 518 of 2016z Meera Investments Llmited versus National Water & Sewerage Corporation Ltd and Sogea Satom Ltd. In the suit the applicant as plaintiff asserted that in August, 20 16 the respondents (defendants in the suit) trespassed upon the applicant's suit land by, among other acts of trespass, laying concrete iron support structures for sewer pipes and thus altered the landscape. The applicant thus seeks in the

50 permanent injunction and damages of various categories. This suit is still pending determination in the High Court. suit orders that restore the plaintifl's land to its original state,

Still while in the High Court, through High Court Miscellaneous Application No. 1O15 of 2OL6, the applicant sought an interim injunction to restrain the respondents from carrying out 55 construction of sewerage pipes on the applicant's suit land until the disposal of the main application or until further orders of the High Court.

Hon. Lady Justice Ketrah Kitariisibwa Katunguka of the High Court heard the application and dismissed the same with costs on 60 31.10.2016.

The applicant appealed to this Court against the order of dismissal of the injunction application. The Notice of Appeal was lodged in Court on 01.11.2016 and a Record of Appeal is already availed to this court.

On O2.11.2016 the applicant in addition to lodgment of the Notice of appeal also lodged in this Court this Application for an interim 65

order of injunction and also lodged, again in this Court, Miscellaneous Application No. 284 of 2016 for an order of injunction in the same terms as those prayed for in interim order of $\mathcal{L}$ injunction.

A perusal of the Record of Appeal which is part of the substantive Application lodged in this Court for an injunction shows that the applicant appeals or intends to appeal on the basis of eight $(8)$ grounds of appeal against the decision of the Honourabel Lady Justice of the High Court whereby she dismissed the application for an interim order of injunction.

As matters stand, the applicant in this application (285 of 2016) is seeking as against the respondents the very same remedies as in the intended appeal, the subject of the Notice of Appeal and the Record of appeal, already lodged in this Court. He also seeks the same remedies against the respondents as those sought in the substantive **Application No. 284 of 2016** already pending in this Court. These are the remedies that were denied to the applicant by the High Court in High Court Miscellaneous Application No. 1015 of

From

8s 2016 when the said application was dismissed with costs on 31.10.2016.

Recourse shall be made to this state of affairs later on in this Ruling.

90 injunction against the respondents contending that the respondents had violated the applicant's Constitutional Rights as owner of the suit land when they (respondents) occupied the same and commenced constructions thereon. The applicant prayed this Court to issue the interim order of

On the other hand, the respondents on their part, contend that the 95 whole issue between them and the applicant is a disagreement as to the quantum of compensation to be paid to the applicant. The sewage pipes had to pass through the applicant's suit land so as to be able to control the sewage in the capital city of the country, otherwise, if not done, then there would be a catastrophy to the 100 general public. According to the respondents the issues of adequacy of compensation are to be resolved in the main HCCS No. 518 of 2016 which is awaiting determination in the High Court. The works had been almost complete on the suit land and the

interim order of injunction had been rendered not necessar5r. This 105 that: Court notes in this regard that the applicant fillaintltt in HCCS No. 518 of 2OL6 pleaded in paragraptr +1a)ffrltplaint of that suit

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(d) The 2"d defenddnt ho,s stqrted laging concrete iron support stt'rtcture for thelr seu)er pipes on the plaintiJfs land greatlg altering the landscape (A copg of the suntegors report ls attached ds annentre uDu)". 110

the assertion of the respondents that the constructions which the 115 interim order of injunction that is being sought, is intended to stop, have already been completed on the suit land. This pleading is in a plaint dated 16.08.2016. It gives credence to

In resolving this application this Court has to address itself to the principles that govern the issuance of interim orders. The granting of an interim order is intended to have the parties to the cause in 120 issue preserve the status quo so as to have the main issues between them determined by the full Court as per the Rules: See: Yakobo Sekungu and others v Crensio Mukasa: Civil Application No. O5 of 2O13 (SC). The Court through its inherent powers exercises its judicial discretion to determine whether or not, depending on the L25 circumstances of the case, an interim order should be granted. For an interim order of stay, it suffices to show that a substantive application 1S pending and that there is a serious threat of execution before the hearing of the pending substantive application: See: Mathew Rukikaire vs Incafex Llmited: Civil Application 130 No. 11 of 2O15 (SC).

Before granting a temporary injunction Court has to be satisfied by the applicant that the applicant has a prima facie case with a probability of success in the main suit, that if the order is not issued the applicant is likely to suffer irreparable damage; and if 135 Court is in doubt as to the above considerations, then the decision whether or not to grant the order will depend on the ba-lance of convenience: See: American Cynamide Co. vs Ethicon Ltd [1975] AC 396 and also Robert Kavuma vs Hotel International: SCCA No. 8 of 1990.

140 The circumstances of this application are that the applicant, AS registered owner of the suit land, through HCCS No. 518 of 2016, is claiming in the High Court of Uganda for relief, compensation inclusive, against the respondents for having carried out constructions of placing sewer pipes on the suit land so as for the 1,45 respondents to be able carry out a public duty of controlling sewerage in Kampala, the country's capital city. The suit still awaits determination in the High Court. One of the possible issues to be resolved in the suit is the adequacy of compensation, the respondents offering Ug. Shs. 71 million, while the applicant 150 demands Ug. Shs. 1.1 billion.

On the basis of the evidence availed, both from the applicant and the respondents, it appears established that as of now i.e. January, 2017, the constructions and placement of sewer pipes on the suit land for the public purpose of expanding the sewerage collection 155 capacity and preventing releasing untreated waste from Kampala City into Lake Victoria, have been completed. It follows therefore that there is no longer any threat that the applicant needs to prevent from happening to the suit land that the sought for interim

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order of injunction is intended to prevent. The issues that are to be 160 resolved between the applicant and the respondents are those to be determined in HCCS No. 518 of 2O16, compensation inclusive.

Therefore, on the facts availed, this Court is satisfied that the as this control, pertains to the capital city of the country. In terms 165 of balancing conveniences, this Court finds it that issuing the interim injunction order in the terms proposed will cause more inconveniences not only to the respondents but to the general public at large. control of sewerage is in the interests of the general public, more so

Further, the applicant came to this Court on the basis of an 170 interlocutory matter of refusal of issuance of an interim order of injunction in HCCS No. 518 of 2016. Hence the intended appeal to this Court seeks the very remedies that the applicant is seeking in this Application and also in the substantive Application No. 284 t7s of 2016 also in this Court. intended appeal against a decision of the High Court Judge on an

This Court Iinds the above conduct of the applicant of resorting to such a multiplicity of Court proceedings to amount to abuse of legal procedure and resort to frivolous and/or vexatious actions.

The applicant cannot be said to be acting bonafide as by resorting 180 to a multiplicity of proceedings by way of appeal, application for interim order and a substantive application for an order of injunction, all seeking the sarne remedy, the applicant IS prejudicing and delaying the fair trial of the main action in HCCS No. 518 of 2016. The applicant is a-lso wasting and making the 18s Court expend its resources to these multiplicity of proceedings generated by the applicant. It is the duty of this Court to restrain the applicant from being a vexatious litigant before the Courts of Law. There is no plausible reason why the applicant does not pursue p.o".(4#Sof his case i.e. HCCS No. 518 of 2OL6 already 190 pending in the High Court instead of appealing to this Court on an interlocutory matter and then pursuing this application and then another substantive one all seeking the same remedy.

In conclusion this Court finds that, for the reasons given, the applicant has not made out a case to be granted an interim order of

195 injunction. This application stands dismissed with costs to the respondent.

Dated at Kampala this 24th day of January,2OLT

H . Justice Remmy Kasule Justice ofAppeal

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