Nassali v Nabateregga (Civil Appeal 58 of 2021) [2023] UGHC 383 (17 November 2023)

# **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA HOLDEN AT MASAKA**

# **CIVIL APPEAL NO: 58 OF 2021**

**(Arising from Miscellaneous Application No. 031 of 2021)**

# **(Arising from Civil Suit No: 034 of 2021)**

**NASSALI BERNA…………………………………………………….….. APPELLANT**

# **VERSUS**

# **NABATEREGGA EVARISTA…………………………….……..…….. RESPONDENT**

# **JUDGMENT**

**(Appeal against the Judgment & Orders of His Worship Charles Yeteise Chief Magistrate of Masaka as he then was under the Chief Magistrates Court of Masaka)**

# **BACKGROUND**

The Respondent, Nabateregga Evarista instituted Miscellaneous Application No. 31 of 2021 in the Chief Magistrates Court of Masaka at Masaka against the Appellant, Nasssali Berna for a temporary injunction.

In her affidavit in support, the Respondent herein acknowledged that Nassali Berna, the Respondent in MA 031 of 2021 was using the suit land albeit, unlawfully in her view.

The Learned Trial Chief Magistrate determined the Application, granted it and issued an order stopping the Appellant who is in possession from continued use of the land and that instead, the Respondent should be the one to use it, pending determination of the main suit

The Appellant was dissatisfied with the said decision and thus the instant appeal.

# **Representation**

The Appellant was represented by **Nakasagga & Co. Advocates**


### The Respondent was represented by **M/s Stabit Advocates**

The Appellant's grounds of appeal were not properly drafted but since he was unrepresented and this court is unable to ascertain his level of education or if he is literate at all, he has been excused for the omission.

#### **The Appellant raised seven grounds of appeal in her memorandum of appeal to wit;**

- *1. The learned trial Chief magistrate erred in law when he ordered that the Appellant who is in occupation of the suit land should stop occupying the same and that the respondent should take possession thereby ordering an eviction against the Appellants in an application for temporary injunction hence altering the status quo which decision occasioned a miscarriage of justice.* - *2. The learned trial Chief Magistrate erred in law and fact when he issued orders in the application for temporary injunction that had an effect of disposing of the main suit, which decision was erroneous and occasioned a miscarriage of justice to the appellant.* - *3. The learned trial Chief Magistrate erred in law and fact when he ordered that the respondent is stopped from occupying the suit land when the same had not been prayed for as a relief or otherwise by the respondent in her pleadings of an application for temporary which decision occasioned a miscarriage of justice.* - *4. The leaned trial Chief Magistrate erred in law and fact when he divulged into the merits of the main suit, and held that the appellant was not in possession of the suit land at the time of purchase by the respondent without trial of the main suit which decision occasioned a miscarriage of justice to appellant.* - *5. The learned trial Chief Magistrate erred in law and fact when he never based his ruling on the established and proper principles of the law for grant of temporary injunction which decision occasioned a miscarriage of justice to the appellant.* - *6. The learned trial Chief Magistrate erred in law and fact when he solely relied on evidence of the Chairperson of LC1 Emmanuel Mwesigye who is respondent's witness in the main suit without giving the appellant an opportunity to be heard hence reached a wrong conclusion.*


7. *The learned trial Chief Magistrate erred in law and fact when he did not evaluate and weigh evidence in accordance with the parties' pleadings and hence erred in arriving at its decision about ordering for eviction against the appellant*.

# **The duty of this Court as a first Appellate**

The duty of a first Appellate Court is to re-appraise or re-evaluate evidences as a whole and come to its own conclusion bearing in mind that it has neither seen nor heard the witness and should make due allowance in that regard.

The Supreme Court has re-echoed the above principles in a number of cases like *Uganda Revenue Authority versus Rwakasanje Azariu & 2 Ors; CACA No. 8/2007; Fr. Narsensio Begumisa and 3 Ors versus Eric Kibebaga; SCCA No. 17 of 2002 and Banco Arabe Espanol versus Bank of Uganda; SCCA No. 08 of 1998.*

I therefore have the duty to re-appraise the evidence and reach my own conclusions thereon subject to the caution that I did not see, hear, or observe the witness.

**Decided cases have also established that "***where the trial court has erred, the Appellate Court will only interfere where the error has occasioned a miscarriage of justice. The Appellate Court has a duty to reevaluate the evidence of the trial court while considering facts, evidence and the law. The court can interfere with the findings of the trial court, if the court misapplied or failed to apply the principles applicable to the offence charged" in this civil case, the issues that were raised before court for determination.*

# **APPELLANT'S SUBMISSIONS**


The Appellant argued grounds 1,2 and 7 jointly.

She submitted that the purpose of granting a temporary injunction is to protect the rights of the parties by preserving the subject matter in its actual condition. She referred this court to the authority of Nabitindo vs. Umar Nassolo Sekamate & Anor (HCMISC Application No. 516 of 2011)

The Appellant criticized the learned Trial Chief Magistrate for stopping/evicting her from use of the suit Kibanja yet the Respondent had categorically stated in her affidavit in support of the Application, that the Appellant was using the suit land, albeit unlawfully, in the Respondent's opinion.

*Ground 3*: The Appellant submitted that the learned Trial Chief Magistrate erred when she issued an order stopping her from using the suit kibanja which order had not been prayed for. She buttressed her submissions with the authority of *Goustar Enterprises Ltd vs. John Kakas Oumo SCCA No. 08 of 2003 in which it was held that no decision must be made or granted by any court of law on a ground which was not pleaded.*

*Ground 4:* The Appellant criticized the learned Trial Chief Magistrate for having delved into the merits of the main suit in the determination of the Application for a temporary injunction. In particular, she attacked the Ruling at page 2 wherein the Trial Chief Magistrate stated that it is established that the Respondent entered the suit Kibanja after it had been sold to the Plaintiff.

She buttressed her submissions with the authority of *Byaruhanga vs. Muhoozi & Anor (HCMA No. 215 of 2014) in which the Hon. Lady Justice Elizabeth Ibanda Nahamya, as she then was held that a temporary injunction would not be granted if its effect is to dispose of the whole case.*

*Grounds 5 and 6;* The Appellant also vehemently argued that the learned Trial Magistrate erred when he omitted to base his ruling on the established principles for granting of temporary injunctions and that he solely relied on the evidence of the area Chairperson LC1. The details of these arguments are on the record of this court.

# **RESPONDENT'S SUBMISSIONS**


The record bears two sets of submissions in reply that were filed for the Respondent. The first copy of written submissions was filed on 24th February 2023, which bear the signature of the Respondent in her names. The second copy of written submissions were filed on 5th June 2023. At the foot of these submissions is the name and address of Counsel for the Respondent on record, M/s Stabit Advocates but the space where counsel's signature should appear is empty. This notwithstanding, this court will proceed to capture the key arguments in the two sets of submissions and address them at the appropriate moment.

By and large, the Respondent did not delve into the substantive grounds of appeal that were raised by the Appellant for determination by this court but instead raised two preliminary points of objection to the appeal.

The first objection was that the grounds of appeal that were framed by the Appellant are narrative and argumentative contrary to the requirement of Order 42 Rule 1(2) of the Civil Procedure Rules.

The second objection was that the appeal is incompetent for the Appellant's omission to first seek leave of the Trial Court before filing of the instant appeal as required by Order 44 rule 2 of the Civil Procedure Rules.

Lastly, and in general reply to the Appellant's submissions, the Respondent submitted that it was not true that the learned Trial Chief Magistrate had evicted the Appellant under the orders that he gave in the Ruling of the temporary injunction application. She prayed that the Appeal be dismissed with costs to her.


### **DETERMINATION OF COURT.**

I have carefully examined the submissions of the parties and the record of the trial court but before delving into the merits of the appeal I will deal with the preliminary objection raised by the Respondent.

#### **1 st Objection:**

The Respondent objects that the grounds of appeal are narrative and argumentative contrary to the law as provided in Order 43 of the Civil Procedure Rules. I have considered the grounds of appeal and I somewhat agree with the Respondent that some of them are narrative and argumentative but I find that the key complaints in the impugned Ruling are clearly discernible under the grounds so framed. This is a minor flaw in my opinion that can be ably cured by *Article 126(2) e of the Constitution of Uganda as amended which enjoins this court to grant Justice without undue regard to technicalities.*

#### **2 nd Objection:**

The Respondent contends that the appeal is incompetent because in her opinion, the Appellant had to first obtain leave of court before instituting this appeal.

The instant Application from which this appeal emanates was brought under *Order 41 r 1(a) & 2 (1) of the Civil Procedure Rules Si 71-1. Order 44 rule 1 (1) q of the Civil Procedure Rules provides that an appeal shall lie as of right from an order made under rules 1, 2, 4 0r 8 of Order 41.*

The provisions of the Civil Procedure Act demonstrate that no leave was necessary before institution of the instant appeal.

I am therefore inclined to agree with the Appellant that the Respondent's objection is misconceived and the same is hereby rejected.

I will resolve the grounds of appeal in the order adopted by the Appellant.

**Grounds 1, 2, 4 & 7.**

*Order 41 r1 (a) and (b) empower courts of law to grant a temporary injunction where it is proved by affidavit that any property in dispute is in danger of being wasted, damaged or alienated by any party for the purpose of staying or preventing the wasting, damaging, alienation, sale, removal or disposition until disposal of the suit*.

In essence, the purpose for granting temporary injunctions is to preserve the status quo in the subject matter. This court has held as much on several occasions *see. Kabigi Taqwa Foundation Ltd vs. Abdul Jabber Idrisa Mawnda High Court at Masaka Civil Appeal No. 09/2022 (Arising from Misc Appln No. 03/2022) (Arising from Civil Suit No. 002/2022)*

It is an undisputed fact that as per the Respondents affidavit in support of the Application, she admitted that the Appellant was in possession of the suit land by way of cultivating the same as per paragraphs 5 and 6. It is surprising therefore that the learned Trial Chief Magistrate made an order stopping the person who was using the suit land and directed that the one who was not in possession should be the one to use the land pending determination of the rights of the parties.

I agree with the Appellant that the learned Trial Chief Magistrates order had a direct effect of changing the status quo, evicting the Appellant and determining the rights of the parties prematurely before hearing the main case.

In sum, this court, hereby agrees with the Appellant that grounds 1, 2, 4 and 7 should succeed.

As for the rest of the grounds, touching the merits of the Application of the temporary injunction, I have found no reason to delve into them because all that was necessary at that point was to maintain the status quo.

It is my opinion that a temporary injunction as granted by the learned Chief Magistrate should remain in force with the only modification being that the Appellant shall stay on the suit land, without growing perennial crops and construction of permanent structures.

In conclusion, the appeal hereby succeeds and costs of the same are awarded to the party that will succeed in the main suit.

I so order.

Dated this 17th day of November, 2023.

Orders:

- 1. The Appellant shall stay on the suit land, without growing perennial crops and construction of permanent structures until court determines the rights of the parties. - 2. The Costs of this appeal are awarded to the party that will succeed in the main suit.


**VICTORIA NAKINTU NKWANGA KATAMBA JUDGE**