Nalubulwa v Wamala (MISCELLANEOUS APPEAL NO. 150 OF 2023) [2024] UGHC 1229 (23 October 2024)

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

# **LAND DIVISION**

# **MISCELLANEOUS APPEAL NO. 150 OF 2023**

### (ARISING OUT OF MISC. APPLICATION NO. 2281/2023)

#### (ALL ARISING OUT OF CIVIL SUIT NO. 292/2023)

MARIA GORRET NALUBULWA (ADMINISTRATOR OF THE ESTATE OF THE LATE CHARLES NANDIGO ZIBALABA):::::::::::::::::::::::::::::::::

#### **VERSES**

MATOVU PAUL WAMALA::::::::::::::::::::::::::::::::::

#### **BEFORE:** HON. LADY JUSTICE NABAKOOZA FLAVIA. K

#### **RULING.**

- 1. This Appeal is brought by way of notice of motion under **Section 33 of the Judicature** Act, Section 98 of the Civil Procedure Act and Order 50 Rule of the Civil Procedure **Rules**, against the decision of Her Worship Josephine Kabasinguzi Kayondo on the following grounds, that; - $i$ . The Deputy Registrar erred in Law and fact when she held that Civil Suit No. 292 of 2023 raises triable issues whereas not. - The Deputy Registrar erred in Law and fact when she relied on unproved ii. allegations to find that the Applicant in Misc. Application No. 2281/2023 would suffer irreparable injury if his application was not granted. - The Deputy Registrar erred in Law and fact when she entered a final iii. determination that the Respondent owns a kibanja at Busega-Kabaale in Lubaga Division without evidence to support that finding. - The Deputy Registrar erred in Law and fact when she issued a temporary iv. injunction altering the status quo at the kibanja situate at Busega- Kabaale in Lubaga Division. - $V$ . The Deputy Registrar erred in Law and fact when she issued a temporary injunction over the whole kibanja situate at Busega-Kabaale in Lubaga Division. - 2. The grounds of the appeal are supported by affidavit in support deposed to by Maria Gorret Nalubulwa, the Appellant. She avers that on 23/10/2023, Her Worship Josephine Kabasinguzi Kayondo issued a temporary injunction in Misc. Application No. 2281/2023 in favor of the Respondent by restraining her from utilizing, cultivating, constructing, developing, disposing off the property situate at Busega-Kabaale in Lubaga Division *(hereinafter called the suit 'Kibanja').* That the learned Registrar did not consider the fact that Civil Suit No. 292 of 2023 was barred by Limitation; and ignored her contentions


that the Respondent failed to adduce evidence relating to ownership or possession of an extra portion that he claims was forcefully taken by the late Charles Nandigobe Zibalaba; and that she issued a temporary iniunction altering the status quo of the suit land. That the Deputy Registrar agreed with the Respondent's assertions that she [the Appellant) intended to sale, create third party rights and construct on the kibanja without evidence to support the finding, and entered a final determination that the Respondent owns the suit kibanja without evidence. Further, that the Deputy Registrar issued a temporary iniunction over the whole kibania situated at Busega-Kabaale in Lubaga Division instead ofrestricting her decision to the portion ofthe kibanja in dispute.

3. The Appellant also filed a supplementary affidavit wherein she averred that after filing of the instant appeal, the Respondent used the temporary injunction order to demolish and attempt to evict workers from the suit Kibanja; and that a mob was in possession of a correspondence from Uganda Police Headquarters clearing the implementation of the court order in Misc. Application No.2287 /2023 as the basis of their illegal activity on the suit Kibanja. That she instituted a criminal complaint at Natete Police Station Vide SD REF 64/75/07/2024 for malicious damage and theft of property. It is also her averment that the temporary injunction should be set aside considering the fact that it is being used for illegal purposes.

o

,

o

- 4. In reply, the Respondent averred that the law on granting a temporary iniunction does not necessarily rely on possession but on grounds which were given in the ruling. That the Appellant utilizes part of the suit kibanja with some developments and that she has developed an area not gifted to her husband, but also in process of developing the whole Kibania. That the orders issued were in the interest of both parties since he had been in possession of the Kibanja until 2007 when squatters encroached on it. That the Appellant's late husband removed the encroachers in exchange of part of the Kibanja and an agreement was executed to that effect. That the Iare Charles Nandigobe Zibalaba took all the land, condoned offeverything including Iand that had been sold offto other people. - 5. Further, that before his death, he (the Respondent) made attempts to meet him over the suit kibanja in 2013 but he passed on; and that the Appellant has refused to vacate the suit kibanja claiming that the same falls under the estate of the late Charles Nandigobe Zibalaba yet he only gave him a portion. That the Applicant threatens to dispose of part ofthe suit Kibanaia and has erected permanent structures surrounded with a perimeter wire mesh in a part not given to her husband. That the temporary iniunction issued won't prejudice the Appellant since her rights are protected; and that the appeal should be quashed and the decision in Misc. Application No. 2281 of 2023 upheld. - 6. In rejoinder, the Appellant averred that in an application for temporary injunction, court maintains the status quo and that considering the admission that the Appellant was in possession at the time ofthe grant ofthe order, court changed the status quo by stopping her from utilizing the su it kibanja. That she has no plans of disposing off the s uit Kibanja,

Page2 of 9

and she already finished her construction activities. That at the time of granting the order, the Respondent did not adduce any evidence of ongoing construction.

- 7. Representation; the Appellant was represented by Counsel Cyrus Baguma while the Respondent was represented by Counsel Nganda Musa. Both parties filed written submissions which have been in this ruling. - 8. Counsel for the Appellant submitted that the Respondent did not file an affidavit in rejoinder to the supplementary affidavit in support and that by law, the Respondent admitted the averments. He prayed that court, under Section 98 of the Civil Procedure Act and Section 33 of the Judicature Act, should set aside the temporary injunction order and order the respondent to restore the status quo as it was before the filing of Civil Suit No. 292/2023. - 9. Upon perusal of the record, I found the following; a Notice of Motion together with the affidavit in support filed on 30/10/2023; an affidavit in reply dated 20/02/2024; Applicant's supplementary filed on 20/02/2024; and the Applicant's affidavit in rejoinder filed on 22/02/2024. There is no supplementary affidavit in reply. - 10. It is trite law that where certain facts are sworn to in an affidavit, the burden to deny them is on the other party and if he does not they are presumed to have been accepted. See Samwiri Massa versus Rose Achen [1978] HCB 297; and also in Makerere University Vs St. Mark Education Institute Ltd & Ors (1994) KALR 26 Justice Lugayizi pointed out that an Application proceeding by affidavit evidence with no opposing affidavit stands unchallenged. - 11. Therefore, court considers the applicant's evidence in the supplementary affidavit to be un-challenged.

# **Resolution of the Appeal**

- 12. Ground 1, 2 & 3 will be handled together since they are interrelated. They are that;- - The Deputy Registrar erred in Law and fact when she held that Civil Suit No. 292 of i. 2023 raises triable issues whereas not. - The Deputy Registrar erred in Law and fact when she relied on unproved allegations ii. to find that the Applicant in Misc. Application No. 2281/2023 would suffer irreparable *injury if his application was not granted.* - The Deputy Registrar erred in Law and fact when she entered a final determination iii. that the Respondent owns a kibanja at Busega - Kabaale in Lubaga division without *evidence to support that finding.* - 13. On ground one, Counsel for the Appellant submits that the Respondent gave the Late Charles Zibalaba Nandigoba a portion of the Kibanja as per the boundaries stated in the deed of gift but that he took more than what was stated in the deed. That this unidentified extra portion in terms of size and location that was allegedly taken over by the Appellant's late husband was what would constitute the suit land; and that if any, is the one that can be encumbered by any injunction be it temporary or permanent.

Page 3 of 9 615/2024

- 14. He relied on the case of Digital Solutions Ltd Vs MTN (U) Ltd HCMA No. 546/2014 which requires proof of a prima-facie case and argued that the trial Deputy Registrar erred when she found that Civil Suit No. 292/2023 raises triable issues. That for court to assess whether the suit raises triable issues, it only has to look at the plaint and annexures thereto. That the Respondent did not attach to the plaint or affidavit in support of Misc. Application No. 2281/2023 any evidence or state any facts in the affidavit of ownership or how he obtained interest in the extra portion that was taken over/trespassed on by the Appellant's late husband. That he did not also state the size of the portion taken over to entitle him to a permanent injunction in the main suit. - 15. Further, that the Respondent's suit is barred by Limitation as provided for under Section 5 of the Limitation Act Cap 80 and as pleaded in the Appellant's written statement of defence at paragraph 4 (a). That the cause of action arose after execution of the deed dated 3/04/2007 and as such, the Respondent would have filed a suit to recover land by 2019. - 16. On ground two, Counsel submitted that the trial Deputy Registrar's finding that the Respondent would suffer irreparable injury on the basis that the appellant was constructing permanent structures and had intentions of disposing off the suit kibanja was in error because the Respondent neither mentioned the names of the Appellant's relatives who informed him about the Appellant's intentions to sell the suit kibanja nor bring evidence of any ongoing construction. - 17. On ground 3, Counsel submitted that the finding by the Deputy Registrar that the balance of convenience lied with the Respondent, who having gifted a portion of his land stood the risk of losing it in totality, constituted a final determination that the Respondent owned the Kibanja. That this was contrary to the law since at the time of granting the injunction, court does not look at the merits of the main suit. Counsel referred this court to the case of Ndema Emanzi Rukundema Vs Mubiru Henry HCMA No. 225/2013. - 18. In reply, it was submitted that the Respondent states in his plaint that he owns a kibanja at Busega measuring approximately 1.5 acres of which he gave part to the Appellant's late husband. That it shows further that the Appellant's husband after receiving the gift took over the whole suit kibanja without any right. That the Appellant in paragraph 4(a) of her written statement of defence confirmed her husband obtaining the suit land from the respondent and attached the deed with clear measurements. - 19. On limitation, it was submitted that it is an act of dishonest for the Appellant to challenge ownership of the Respondent yet she accepted and established that her late husband obtained the suit kibanja from the Respondent. That trespass to land is a continuous tort and cited E. L. T Kiyimba Kaggwa Vs Haji A. N Katende (supra) in support thereof; and also argued that the late Charles Nandigobe poured soil on the Respondent's land and made it clear that he would shift it to his kibanja because he had no access road. That in 2013, both parties had another understanding that permitted the appellant to continue

$615/2024$

Page 4 of 9

using the Respondent's part as a holding place for his marram soil for a short time but her husband died before could fulfilling his promise. That the Appellant embarked on construction, developing and fencing the suit kibanja in 2023, and it was on such background that the Deputy Registrar made her decision.

- 20. In rejoinder, the Appellant's Counsel submitted that the Respondent's claim in the main suit is for trespass, but does not plead the extent to which the Appellant's late husband allotted himself excess. He relied on the decision of Hon. Justice Mubiru Stephen in CA No. 009 of 2 017, Odyek Alex & Anor Vs cena Yekonani & 4 Ors where it was held that, "limitation is applicable to all suits in which the claim is for possession of land, bosed on possessory rights as distinct from title or ownership, ie, proprietory title". He prayed that court finds that the Deputy Registrar erred when she found that the Respondent's Civil Suit raises triable issues yet it is barred by limitation. - 21.. 0n the issue of a prima facie case/triable issues, the Ag. Deputy Registrar found at page 4 of her ruling that"there is a pending Civil Suit No. 292 of 2023 in the High Court and the issues above raised by the Applicant and the respondent raises triable issues of ownership, hence there is a prima focie case". The Applicant faults the Ag. Deputy Registrar for that holding pointing out that the Respondent did not attach to the plaint or affidavit in support of Misc. Application No. ZZBI/2023 evidence to that he owns the suit land, or how he obtained interest in the extra portion that was trespassed on by the Appellant's husband. That the Respondent did not even state the size of the suit land.

o

o

- 22.1n the case of Kiyimba Kaggwa Vs Hajii Nasser Katende (1985) HCB 43, Odoki | (as he was) defined a prima facie case to mean a case with triable issues for adjudication; and that court must be satisfied that the claim is not frivolous and vexatious. (see also Kigongo Edward Nakabale Vs Kakeeto & Anor MA No. 144 of 2Ol7) - 23. I believe the Ag. Deputy Registrar perused the plaint before stating at page 4-5 of her ruling as follows:

"...the Applicant contends that he only gqve part of the land as a gifi to the late Charles Nandigobe and not the whole kibanja as claimed the respondenL He annexed the gifi deed as Annexure A on record, He also alleges that his dction is not limited by Section S of the Limitation Act relied on by the respondent as the said trespass arose in 2023 when the respondent, the odministrator of the estate fenced off the whole Kibonja and started putting up permanent structures which never existed and that the marram that the late Charles put on the land in 2008 was with the Applicant's permission on the understanding that he will remove it afier a short period of time."

24. From the above narration, the act of allegedly taking over the whole suit land and maintaining structures and marram soil on the same apparently constituted trespass to


land which must be proved by the Respondent to the required standard. For that cause, the suit raises serious issues to be adjudicated upon by court.

- 25. On the issue of limitation, it was equally raised before the Ag. Deputy Registrar and she was satisfied that the alleged trespass to land arose in 2023 when the Applicant fenced off the whole Kibanja. For that cause, it is pointless to consider the matter any further. - 26. In view of the forgoing, I do find that the learned Deputy Registrar rightly found that the suit disclosed triable issues. Ground one must therefore fail. - 27. On ground 2, the Deputy Registrar is faulted for relying on the Respondent's affidavit evidence which he presented on the basis of information he obtained from the Applicant's relatives. At page 5, paragraph 1 of the Ruling, the learned Deputy Registrar noted the Respondent's evidence under paragraph 10 of his affidavit in support of MA No. $2281/2023$ to the effect that:

"...at the beginning of this year, I received information from some close members that the administrator of the estate was in preparation of selling of the kibanja and had begun construction of permanent structures on the said kibanja that I never gave out to her late husband."

28. The Deputy registrar relied on the above evidence to infer that the Respondent would suffer irreparable damage if the injunction is not granted.

In my considered view, the above evidence was hearsay and did not hold any evidential value. I am mindful of the law to the effect that where a party intends to rely on information in his or her affidavit, the source of such information must be disclosed (Order 19 rule 3 of the Civil Procedure Rules). In the case of Eseza Namirembe Vs Musa Kizito (1972) ULR 8, it was observed that an affidavit based on information must disclose the source of information, otherwise the affidavit becomes incurably defective since the non-disclosure goes to the essential value of the affidavit. Therefore, the aforesaid paragraph of the Respondent's affidavit in support in MA No. 2281/2023 offended the law and should not have been relied upon. Consequently, ground 2 of the appeal succeeds.

- 29. On ground 3, the Ag. Deputy Registrar is faulted for her finding at paragraph 2 of her ruling that the balance of convenience lied with the Respondent who having gifted a portion of his land, stands the risk of losing his land in totality. It is argued that this finding constituted a final determination that the Respondent owns the suit land which he stands to lose. - 30. The Respondent's Counsel did not ably submit on ground 3. However, the Respondent averred that the law in granting a temporary injunction does not necessarily rely on possession but on certain grounds. Be that as it may, the averment was made out of context because in granting a temporary injunction, the balance of convenience tilts in favor of a party who is in possession of the suit land (See. Digital Solutions Ltd Vs MTN (U) Ltd, supra)



- 31. The Respondent did not lead any evidence to prove his possession and occupation of the suit kibanja required by the law unlike the Applicant who led evidence in form of structures on the suit kibanja. It suffices to note that the applicant's evidence is conceded to by the respondent at paragraph 7 of his affidavit in reply having averred that the Applicant has been in possession of part of the suit land with some developments. Therefore, in the event of change of the status quo, the appellant would be affected more, hence the balance of convenience being in her favor. - 32. Finally, it is trite law that while dealing with a temporary injunction, the trial court does not have to look into the merits of the case. For this cause, Tuhaise J in Byaruhanga & Ors Vs Kabagahya (HCMA No. 564/2016) pointed out that "in my opinion, the situation on the face of the pleadings, give raise to serious triable issues pointing to a prima facie case for adjudication. It is not for court at this stage to go into the merits of the main suit. This will be done when the main suit is heard on the merits". In this case, I do agree with the Applicant's Counsel that the statement of the learned Registrar that *'...the applicant who having gifted a portion of his land stands at risk* of losing his land in totality' was final as regards ownership of the suit land. This is so because to determine that the Respondent indeed owns the suit kibanja is a matter of evidence to be adduced during full trial. - 33. Consequently, the third ground of appeal succeeds as well. - 34. I shall now resolve **grounds 4 & 5** jointly, to wit:

That the Deputy Registrar erred in Law and fact when she issued a Temporary injunction altering the status quo of the kibanja situate at Busega- Kabaale in Lubaga division.

That the Deputy Registrar erred in Law and fact when she issued a temporary injunction over the whole kibanja situate at Busega- Kabaale in Lubaga Division.

- 35. Counsel for the Appellant submitted that the learned Deputy registrar erred when she granted a temporary injunction restraining the Appellant from utilizing the whole suit kibanja which the Respondent gifted her late husband thereby altering the status quo. His reason is that the appellant was in possession of the suit kibanja with structures for poultry at the time of issuance of the order. Counsel added that the Deputy Registrar erred when she issued a temporary injunction over the whole kibanja instead of restricting her decision to the portion of kibanja in dispute. Further, that the Ag. Deputy Registrar stopped the Appellant from utilizing the suit kibanja until the determination and final disposal of the main suit yet the estate she represents has been and continues to be in exclusive occupation and full utilization of the kibanja since $3/04/2007$ . - 36. The appellant's Counsel also argued that the purpose of a temporary injunction according to the case of Ndema Emanzi Rukundema Vs Mubiru Henry (supra) is the preservation of the status quo on the suit property pending the disposal of the main suit, which status quo consists of the actual state of affairs on the suit premises prior to filing

Page 7 of 9 6/5/2024

of the main suit. That despite all the evidence pointing to the fact that the appellant was in possession of the suit property, the Deputy Registrar issued an order restraining her from utilizing the suit kibanja thereby changing the status quo.

37. For ground 5, it was submitted that the Deputy Registrar erred when she issued a temporary injunction over the whole Kibanja yet the Respondent had admitted that he gifted a portion of it to the Appellant's husband hence implying that the whole kibanja is not in dispute to be encumbered by a temporary injunction. That the Respondent filed the main suit after the death of the Appellant's husband whom he gifted the land and that the balance of convenience was in favor of the Appellant who was in possession. Counsel relied on the Court of Appeal case of Okonga Rashid Vs Byenkya Amos & 6 Ors Civil **Application No. 977 of 2023** where Hon. Justice Oscar John Kihika JA observed that:

"...for this court to grant an order maintaining the status quo on the suit land and at the same time restrain the Respondents from utilizing the land, there must be cogent evidence proving that the Applicant is in possession of the suit land. This is not the case in the present Application. It is for the aforesaid reason that dismiss this Application."

- 38. In response, the Respondent's Counsel cited on the cases of **E. L. T Kiyimba Kaggwa Vs** Haji A. N Katende (1985) HCB 43, Commodity Trading Inductries Ltd Vs Uganda Maize Industries & Anor [2001-2005] HCB 118 and American Cyanamid Co. Vs **Ethicon Ltd [1975] AC 396** which lay the guidelines of granting temporary injunctions. Counsel argued that a prima facie case is a case where a court need only to be satisfied that there is a serious question to be tried. Further, Counsel relied on the case of Imelda Gertrude Basudde Nalongo Vs Tereza Mwewulize & Anor, HCMA No. 402/2003 on the meaning of a prima facie case. - 39. The Appellant rejoined that the Respondent has not replied to the issue of the Registrar issuing an order changing the status-quo which was in error. Further, that the Deputy Registrar erred in issuing a blanket temporary injunction over the whole kibanja; and that the respondent has not challenged the Appellant's prayer to restore the status quo as it was at the time of filing the main suit. - 40. I have perused both the ruling and the order which was granted on $23/10/2023$ in the terms that:

"a temporary Injunction is issued restraining the respondents, her servants and/ or agents from utilizing, cultivating, building, constructing, developing, alienating, disposing off or selling of property namely Kibanja Comprised at Busega, Kabaale in Lubaga Division until determination and final disposal of the main suit."

41. I am in agreement with the Applicant that the said terms of the order cover the whole suit kibanja and also restricts every person who has been utilizing or cultivating the said

$61512024$

Page 8 of 9

land before issuance of the above order. A perusal of paragraph "b" of the grounds in the amended chamber summons, vide Misc. Application No. ZZS|/2023, shows the Respondent's admission the Appellant utilized the suit Kibanja and was putting up permanent structures. Under paragraphs 7 & 11 of the affidavit in support of the said application the Respondent also alluded to the fact that the Applicant is in occupation of the land which she refused to vacate claiming it is under the estate of her late husband. There is also further evidence of the Appellant's occupation of the suit kibanja under paragraph 5,6,7,8 and 9 of her affidavit in reply to Misc. Application No. 2281/2023.

- 42. Therefore, the evidence clearly shows that the impugned injunction order not only altered the status quo but also restricted the Appellant's use of land whose ownership was not disputed by the Respondent entirely. All this is contrary to the purpose of <sup>a</sup> temporary injunction. Consequently, grounds 4 and 5 equally succeed. - 43. In conclusion, the appeal substantially succeeds and is allowed under the following terms; - i. That the order ofa Temporary Injunction issued on 23'd October, 2023 vide High Court Miscellaneous Application No.2287/2023 is hereby set aside. - ii. The Appellant cannot sell or create any third party rights over the claimed suit land portion until the main suit is determined. - iii. The Registrar is directed to visit locus and ascertain the portion ofthe suit land in dispute when hearing the summons for directions. - iv. The cosrs shall be in the cause.

o

o

rt ^fV, \*lr,^t Signed, dated and delivered at Kampala this......k........ ary ot ... !. Y.:'.1ll.1..zoz+

Nabakooza fu