Nambuya and 4 Others v Devishi Manek Shah and 3 Others (Miscellaneous Application 38 of 1997) [1998] UGHC 18 (30 January 1998)

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBALE HCT MISC. APPLICATION NO 38/1997 [From Mbale D. R. HCCS NO 50/1997]

- 1. WILSON NAMBUYA - 2. JAMES MUSOOLI - 3. FRED KOROTO - 4. KAMYA ALI - 5. K. A NABUDERE APPLICANTS

*VRS*

- 1. DEVSHI MANEK SHAH - 2. MULCHAND NANCHAND SHAH - 3. MOHLALA NAHCAND SAHAH - 4. SOMLHAND NANCHAND SHAH

by their attorney A. B. POPAT RESPONDENTS

## BEFORE: THE HONOURABLE MR. JUSTICE A. KANIA

## RULING

This application has brought by Wilson Nambuya, James Musooli, Fred Koroto, kamya ali and K. A Nabudere, hereinafter referred to as the applicants, by a Chamber summons under order 37 rules <sup>1</sup> and 9 of the civil ofthe application Mr. Musiiho learned counsel for the applicants abandoned procedure rules and Section 101 of the C. P. A and it is supported by the affidavits of the <sup>1</sup>st, 2nd and 4th applicants. During the course of the hearing the affidavit evidenc eof the 4th application on grounds that it was defective. By the applicationt he following orders are sought.

- An order of a temporary injunction a) - That costs ofthis application ar eprovided for. b)

The grounds upon which this application is founded as contained in the chamber summons and the affidavits of the <sup>1</sup>st and second applicants are generally that:-

- i) The applicants were tenants at Plot No <sup>1</sup> Naboa Road Mbale Town before the repossession fo the same by the respondents. They had carried out extensive repairs and renovations on the said premises - **ii)** The applicants have continued to be the tenants ofthe respondents to date but on 7th October, 1997 notice was given to them to vacate the suit premises on or before 31st December, 1997. That the notice is too short and the respondents have not paid compensation to the applicants for the improvements on the suit premises. That the respondents are likely to default to pay the said compensation in case the applicants are forced out ofthe premises. - iii) That the applicants are likely to suffer substantive loss and damage incapable ofmonetary compensation - iv) That it is just and equitable in the circumstances.

Mr. Musiiho, rehearsed the grounds of the application and pointed out that thought the 3rd applicant's ground ofthe application is that the notice given him to vacate the premises by his landlord's is too short, the first applicant demands shs 4,520,360/=, the second applicant demands shs 4,239,520/=,

the 4th applicant demands shs 6,226,400/= and the fifth applicant demands shs 3,500,000/- in compensation for renovations and repairs respectively.

Regarding the second ground Mr. Musiiho submitted that the notice given to the applicants to vacate the suit premises is too short. He contended that as the respondents have not paid compensation to the applciants as provided for under section <sup>11</sup> (2)of the Expropriated properties Act, if the applicants are evicted now the respondents will default on the said compensation which they are bound by law to do. He argued that the reason given for the vacation ofthe suit premises is a smoke screen as the real reason is to evict the applicants without compensation.

Mr. Musiho submitted that because the applicants had invested heavily in the premises, they would incurr irreprable loss incapable of monetary comepsnation iftheir applciation was not allowed. He finally contended that it is just and equitable that an injunction issues restraining the respondents, their agents, servants and successors n title from evicting the applicants until the determination ofthe head suit.

Mr. Dagira opposed the application and pointed out that the instant application is improperly brought under section 101 ofthe C. P. A as the only enabling law for an application for a temporary injunction is order 37 Rule 2 (1) of the Civil Procedure Rules. He submitted that S. 101 of the C. P. A can not be invoked where a remedy exists under a specific provision and he cited Batemuka vs Anwar & anor [1987] HCB 71 and Adoni v Mutekanga [1970] EA 429 for the proposition.

On the merits of the application he submitted that the applicant had not satisfied the conditions under which a temporary injucntion is granted which are that:-

- i) an applicant has to satisfy the court that he has a prima facie case of success in the suit - ii) the applicant will suffer irreprable damage in capable of monetary compensation - iii) In case of doubt the application is to be considered on a balance of convenience.

The principles on which the courts will grant interlocutory injunctions have been well stated in Giella v Cassman Brawn & company Ltd [1973] E. A 358 at 360 as follows:

"The conditions for grant for an itnerlocutory injunction are now, I think well settled in East Africa. Frist an applicant must show a prima facie case with a probability of success. Secondly an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreprable injury which would not adequately be compensated by an award of damages. Thirdly ifthe court is in doubt it will decide the application on a balance of convenience. EA. Industries v Truffods [1972] E. A 420."

The above are the principles which have now come to be accepted in our jurisdiction and consistently followed by our courts. See *Tonny Wasswa E. L. TKiyimba Kaggwa v haji Abdul Katende [1985] HCB 43.* And in the

cases of Robert Kavuma v hotel International C. A 8/90 and HCCS NO 609 Economy Publications vs Nitin Jayant & 9 ors cited by Mr. Dagira.

the applicants have shown to the satisfaction of the court that they have a probability ofsuccess. Applying the above principles as a whole it would appear that besides the consideration that an interlocutory injunction is intended to preserve the status quo between the parties until an important issue is investigated and in case where there is evidence of a likelihood of causing irreprable damage to the subject matter ofthe dispute, which damage or injury is substantial and is incapable of being remedied or atoned for by an award of damages, the applicant is required to prove by affidavit or otherwise that he has a probability of succeeding in the main suit. It was held in J. B. M Mubiru v ULC & Teddy tumusime HCCS NO 745/90 that the applicant plaintiff must show and satisfy court that the suit is not frivolous, vexatious or illegal. In the instant case the applicants have neither by the two affidavits in support of the application nor through the submissions of their counsel mr. Musiiho demonstrated to the satisfaction of the court that they have a probability of success in the head suit. In fact there was no endavour whatsoever to prove the existence ofthis condition . in these circumstances it can not be said that

With the exception of the 3rd applicant Fred koroto whose claim is founded on the fact that the notice to vacate Plot I Naboa road is too short, the applicants claim they stand to incur irreprable injury in that they may not be compensated repairs and renovations they effected on the building in issue. Like the 3rd applicant they argue the shot notice to vacate the siad premises will occasion irreprable injury incapable of compensation in monetary terms.

As regards irreprable loss or injury incapable of monetary compensation likely to be sustained by the applicants, inr espect ofrepairs and renovations effected by them, I am of the view and I agree with Mr. Dagira that such injury relates to damage or injury that canot be translated into monetary terms. In the instant case the first , 2nd 4th and 5lh applicants base their claims on specific amount sof money on bills of quantities. These claims are ascertainable in monetary terms. The arguments that this head of possible loss or injury is incapable of compensation in monetary terms is unsucstainable. All the five applicants also claim that because of the short notice to vacate given to them by the respondents will cause them to incur irreprable loss incpabale of monetary compensation due to difficulties they will face in relocating their business activities. The applicsnts claim they are tenants of the respondents. The nature of the tenancy is not clear. No evidence was adduced by the applicants as to what period of notice of termination of the tenancy was provided for under the tenancy. The respondents served notices terminating the tenancy on 7th October, 1997 and the applicants were expected to have vacated the premises by the 31/12/1997 latest. This was a period of two months and three weeks notice. The applicants don't allege that the respondents were in breach of their tenancy terms. Apparently the applicants are still in occupation that being the reason of this application. Today is the 30th January 1998, which means the applicants have been in occupation for upto close to 4 months since they were served notices to vacate. In my own estimation this constituted ample time for the applicants to have re-located their business operations to some other place. As no allegations of breach of the tenancy contract have been made and proved by the applicants it can not be said the respondents are responsible for inconveniences and nuisances that may be experienced by

the applicants in the process of relocating their business activites. All in all the applicants have not shown to my satisfaction that they stand to sustain irreprable damage incpabale of monetary compensation arising from repairs and renovations effected by themselves on Plot I naboa road or that notice by the requiring them to vacate the said premises would lead to such loss. As no interlocutory injunction is granted ifthis condition is not proved to the satisfaction of the court, See noor Mohamed Jan mohammed vs kassamali Virji madhani [1953] 20 EACA 8, this ground ofthe application must fail.

The court only considers an application of this nature on the balance of convenience if it is in doubt. In the instant application this court is not in doubt whatseover whether the applicasnts have a probability of success in the main suit or whether if the application is not granted the applicants would suffer irreprable injury incapable of monetary compensation. The court not being in doubt, I will not go into where the convenience of the case would lie if an injunction is not granted. In the result the application is dismissed with costs.

> *A..* Kania Judge 30/1/1998.