Namanda v Tungakwo and Others (Miscellaneous Appeal No. 36 of 2020) [2023] UGHCLD 19 (6 February 2023)

Full Case Text

#### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT KAMPALA

#### [LAND DIVISION]

#### MISC. APPEAL NO. 036 OF 2020

#### [ARISING FROM MISC. APPLICATIONS NO. 1073 & 1074 OF 2020]

[ALL ARISING FROM HCCS NO. 584 OF 2020]

#### RITAH NAMANDA KABOYO

#### ......................................

#### $\vee$

- $1.$ **TUNGAKWO BERNARD** - $2.$ OWEMBABAZI ENID - $3.$ AYEBARE RICHARD - **GRACE AKELLO AYEBARE** $4.$

....... ..............................

### BEFORE: - HON. LADY JUSTICE P. BASAZA - WASSWA

#### RULING

#### Representation:

- Mr. Pande Norman for the Appellant / Plaintiff. - Mr. Ronald Kwesiga for the 1st Respondent. - Mr. Kubakulungi Elly for the 2nd Respondent. - Mr. Nuwagaba Patrick for the 3rd & 4th Respondents.

#### Introduction:

This is an appeal by which the Appellant / Plaintiff; Ms. Kaboyo seeks orders to $[1]$ set aside the order of the learned Deputy Registrar; HW Flavia Nabakooza,

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$\mathbf{1}$

issued on November 17, 2020 vide Misc. Applic. No. 1073 of 2020 (hereinafter referred to as 'the impugned Order').

In the impugned Order, the learned Deputy Registrar modified and or varied her $[2]$ earlier interim order issued on September 2, 2020 in Misc. Applic. No. 1074 of 2020. The contents of both orders are laid out here below.

The earlier order of September 2, 2020 in Misc. Application No. 1074 of 2020 read that;

'AN INTERIM ORDER do issue restraining the respondents, their agents, legal representatives, assignees, servants or any other person from trespassing onto, selling, constructing, developing, evicting, encroaching / entering thereon and or from any other dealings in the land comprised in Busiro Block 411 Plot 768 Land at Sisa pending the hearing of Miscellaneous Application No. 1073 of 2020 for a temporary injunction'

The impugned Order read that;

'That the INTERIM ORDER issued on the 2nd day of September is hereby extended but modified to restraining the respondents, their agents, legal representatives, assignees, servants or any other person from selling or excavating the land comprised in Busiro Block 411 Plot 768 Land at Sisa pending the hearing and disposal of this application.

That the status quo of the suit land being the on- going construction and developments shall proceed however no new foundations nor buildings should be erected on the same'

Ms. Kaboyo who is the Plaintiff in the Head suit; HCCS No. 584 of 2020, sued the $[3]$

1 - 4 Respondents herein / (Defendants therein), in that suit, by which she

contends;

- That she is the owner of two (2) acres of the land comprised in **Block 411** $i)$ plot 768 at Sisa (hereinafter referred to as the suit land). - That the 1st Respondent; Mr. Tungakwo breached the sale agreement of ii) purchase of the suit land

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That the 2 - $4$ th Respondents trespassed upon the suit land. iii)

#### Ground of Appeal:

In this present appeal, Ms. Kaboyo contends that the learned Deputy Registrar $[4]$ had no powers, by issuance of the impugned order, to review, modify and or vary the interim order of September 2, 2020. That as such, the impugned order be set aside and vacated.

# Reply by the 2nd Respondent (the gist)

- In her affidavit in reply, Ms. Owembabazi contends; $[5]$ - That the impugned order never interfered with the interim order but $i)$ disposed of Misc. Applic. No. 1073 of 2020; an application for a temporary injunction. - That by the time the interim order was granted, her (Owembabazi's) ii) house was under construction and that was the status of the suit land. - That the court having issued a temporary order maintaining the status iii) quo, she continued building and construction was completed, and as such, this present appeal was overtaken by events.

## Reply by the 3rd & 4th Respondents (the gist)

- In their joint affidavit in reply, Mr. Ayebare Richard and Ms. Grace Ayebare; the $[6]$ 3rd & 4th Respondents, who are a spouse, one of the other, contend; - That a court has power to vary or modify its own orders.

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That its now two (2) years since the impugned order was issued, and their ii) $(3rd \& 4th Respondent's)$ house is now complete and they reside there as a family.

#### Rejoinder by the Appellant (the gist):

$[7]$ In rejoinder, Ms. Kaboyo answered that by allowing construction to continue, the learned Deputy Registrar had determined the rights of the parties in court, which powers she did not have.

#### Decision of Court:

- Upon looking at both the earlier order of September 2, 2020 and the impugned [8] order, it is clear that although the impugned order was made vide M. A. No. 1073 of 2020, it is indeed a variation and review of the earlier order. - The questions to be addressed are whether the learned Deputy Registrar had $[9]$ powers to vary and review her earlier order? And whether the impugned order should be set aside? - In his submissions, Mr. Pande Norman, learned Counsel for the Appellant argued $[10]$ that the learned Deputy Registrar had no powers to modify / review her earlier order, which order, he submitted, is therefore a nullity. He further argued that the said variation of the order has adversely affected the Appellant as construction and developments thereon resumed and rendered the purpose of the interim order nugatory.

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- To support his propositions Mr. Pande cited *inter alia*; Oscar Andreaus Cardenas $[11]$ Espinosa vs. Nakimuli Mariam Cardenas1, Muhammad Buwule Kasasa v National Water & Sewarage Corporation2 and Attorney General v James Mark Kamoga3 - In reply, Mr. Kubakulungi, learned Counsel for the 2nd Respondent submitted $[12]$ that this appeal is overtaken by events and is moot. - $[13]$ Also in reply, Mr. Nuwagaba learned Counsel for the 3rd & 4th Respondents argued that a Registrar has power to modify her interim order in exercise of her power under Order 41 Rule 4 and Order 50 Rule 3 of the CPR. He argued that this appeal has since been overtaken by events, that the 3rd & 4th Respondents built and completed their buildings and reside there. - In my view, the answer to the above questions in this appeal lie in Order 50 of $[14]$ the CPR as amended by the recent Civil Procedure (Amendment) Rules, 2019 and in **Practice Directions No. 1 of 2002** issued by the Chief Justice. These Instruments provide the extent of the Judicial Powers of Registrars. - It is now settled, under the said Instruments, that upon summons for Directions, $[15]$ Registrars have power and Jurisdiction to deal with, and handle inter alia, interlocutory applications under Order XL1 of the CPR (temporary injunctions) and other applications for interim relief. Refer to Order X1A Rule 2 (1) (c) and Rule 7, and Order 50 Rule 3 of the Civil Procedure (Amendment) Rules, 2019.

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&lt;sup>1 HCMA No. 112 of 2017 (HC Circuit-Mbale.)

&lt;sup>2 HCCS No. 335 of 2014 (Civ. Div.)

&lt;sup>3 SCCA No. 8 of 2004

- In view of the said provisions, I agree with the submissions of Mr. Nuwagaba, $[16]$ learned Counsel for the 3rd & 4th Respondents, that the impugned Order being an order issued under Order XLI of the CPR, the learned Deputy Registrar had power and Jurisdiction to vary her earlier order, or even set it aside pursuant to Order XL1 Rule 4 of the CPR. - Order XL1 Rule 4 of the CPR provides that, $[17]$

'Any order for an injunction may be discharged, or varied, or set aside by the court on application made to the court by any party dissatisfied with the Order'

- Suffice it to point out here, that all the authorities cited by Mr. Pande, learned [18] Counsel for the Appellant, are authorities that were decided before the commencement of the new Civil Procedure (Amendment) Rules, 2019. The said new Rules expanded the list of matters handled by Registrars under Practice Directions No. 1 of 2002, to include inter alia applications under Order XL1 of the CPR. - In view of these new Rules, and of the fact that the grant of an interim injunction, $[19]$ and an injunction are an exercise of Judicial discretion, I find no merit in this appeal. - It is settled that an Appellate court will not interfere with the exercise of judicial [20] discretion unless it has been shown that the discretion was not exercised judicially. The latter exception was not a ground in this appeal. See Giella v Cassman Brown & Co4.

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&lt;sup>4 [1973] E. A at pages 358 -361

In the result, this appeal is accordingly disallowed, with costs to the 2nd, 3rd & 4th $[21]$ Respondents.

I so order,

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## P. BASAZA - WASSWA

**JUDGE**

February 6, 2023

Ruling delivered electronically on the Judiciary ECCMIS system and via email to the parties.