Nuwamanya v Nyamuba (Civil Appeal 100 of 2023) [2024] UGHC 307 (24 January 2024)

### **THE REPUBLIC OF UGANDA**

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

## **HIGH COURT CIVIL APPEAL NO. 100 OF 2023**

# **(ARISING FROM MISC APPLN NO.49 OF 2022)**

# **(ARISING OUT OF CIVIL SUIT NO. 085 OF 2022)**

# **NUWAMANYA ROBERT :::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT**

### **VERSUS**

- **1. NYAMUBA REFAYA** - **2. KEMIREMBE GRACE** - **3. THE COMMISSIONER LAND REGISTRATION ::::::::::::::::::: RESPONDENTS**

# **RULING**

*Hon. Lady Justice Victoria N. N. Katamba*

# **BACKGROUND**

The Appellant instituted HCCS No. 85 of 2022 as Administrator of his father, the Late Karangira Christopher against the Respondents for various orders, inter alia, a permanent injunction restraining the 1st and 2nd Respondents from trespassing and interfering with the Appellant's alleged ownership of the suit property.

In the main suit, the Appellant pleaded that his father, the Late Karangira Christopher owned about 5 acres of land. That the Late Karangira Christopher secretly sold the suit land (about one acre out of the five) to the Respondents without the consent of his family. He even attached a copy of the sale agreement to his plaint.

The Appellant maintains that the sale agreement which was executed by his now deceased father, for whom he is the legal representative is unlawful. That the transaction was tainted with fraud and illegality and thus should be set aside by this Honourable Court.

The Appellant subsequently took out Misc Application No. 049 of 2023 seeking a temporary injunction maintaining the status quo of the suit property, until the disposal of the main suit. The Application for the temporary injunction was dismissed by the learned Deputy Registrar in a ruling delivered on the 20th day of July 2023.

The Appellant was dissatisfied with the decision of the learned Deputy Registrar and thus the instant appeal.

### **Representation**

The Appellant was represented by M/s Moogi Brian & Co. Advocates

The Respondent did not enter appearance and thus this Honourable Court made an order allowing the Appellant to proceed ex parte.

### **At institution of the Appeal, the Appellant raised eight grounds of appeal to wit;**

- **1.** The learned Deputy Registrar erred in law and fact when he improperly evaluated the evidence on record and arrived at an erroneous decision that the appellant was not in possession and utilization of the suit property. - **2.** The learned Deputy Registrar erred in law and fact when he held that the 1st and 2nd Respondents were in possession and utilization of the suit property without any evidential basis. - **3.** The learned Deputy Registrar erred in law and fact when he based his decision on wrong principles of law that do not guide the grant of a temporary injunction which is meant to preserve the status quo. - **4.** The learned Deputy Registrar erred in law and fact when he held that the grant of a temporary injunction had the effect of evicting the 1st and 2nd Respondents from the suit property who had never been in possession and utilization of the same. - **5.** The learned Deputy Registrar erred in fact and law when he erroneously made a decision that required a locus visit without conducting the same. - **6.** The learned Deputy Registrar erred in fact and law when he failed to and refused to preserve the status quo of the suit property until the logical conclusion of the main suit.


- **7.** The learned Deputy Registrar erred in fact and in law when he dismissed the Appellant's application for a temporary injunction based on reasoning that had the consequential effect of determining the ownership of the suit property. - **8.** The learned Deputy Registrar erred in fact and in law when he ignored and misapplied the facts of the case and the law on temporary injunctions and found that the conditions favored dismissal of the application.

### **Appellant's Submissions**

The Appellant submitted that the law on an unopposed Application is such that averments made in affidavit evidence which are uncontroverted are deemed admitted. He cited several precedents, among which is *Wamala Abdu vs. Commissioner Land Registration High Court (Masaka) Miscellaneous Cause No. 16 of 2021 wherein the above position was adopted.*

The Applicant submitted that *Order 41 rule 1 of the CPR provides that where in any suit proved by affidavit or otherwise that any property in dispute is in danger of being wasted, damaged, or alienated by any party to the suit, etc, Court may by order grant a temporary injunction to restrain such act.*

**On ground one;** the Appellant submitted that the learned Deputy Registrar erred when he stated that plaint is silent whether the Applicant has been in occupation/possession of the suit land. The Appellant submitted that this was an error because in paragraph 3(c) of his plaint, he pleaded that he isseeking a permanent injunction restraining the defendants from interfering with his ownership of the suit property. The Appellant further stated that moreover, he attached photographic evidence in annexures C2 and C3 in the affidavit in support which depicted his family home which has been in existence for a long time.

**On grounds 2, 3, 4, 5, 6 and 7;** the Appellant submitted that the learned Deputy Registrar erred when he found that issuing a temporary injunction against the Respondents who have had possession since 2003 would be counterproductive and have an effect of evicting them. He submitted that the Respondents first attempted to enter onto the suit land in 2022 when they erected a fence on the land and had only recently brought construction materials.


### *On whether his suit establishes a prima facie case;*

The Appellant submitted that his affidavit evidence demonstrates that he is suing as Administrator of the estate of the deceased who owned the suit property, family land, whose acquisition by the Respondents was without consent. That the land was in danger of being taken over to the detriment of the rightful beneficiaries.

The Appellant also submitted that the he pleaded fraud and that matters of fraud are serious allegations that constitute a prima facie case as per this Court's decision in *Kitekere Daudi & Anor vs. Salongo Lutaaya Kibandwa & 3 Ors Misc Application No. 66 of 2018 (Arising from Civil Suit No. 32 of 2017), un reported.*

### *On whether the Appellant may suffer Irreparable injury;*

The Appellant repeated himself that he is suing as Administrator of the estate of the deceased and that the Respondents had acquired title to the same fraudulently. That he was suing to preserve the property for its rightful beneficiaries.

The Appellant further argued that the Respondents conduct of dumping construction materials, erecting a fence with an intention of moving onto the land to occupy it are detrimental to the interests of the beneficiaries as they drain or deplete it. He contends that this amounts to irrepable injury.

### *On the Balance of convenience;*

Still on reliance on the Kitekere authority, supra, the Appellant rightly argued that the position of the law is such that if the Court is in doubt on any of the above two principles, it will decide the Application on the balance of convenience. That the balance of convenience means that if the risk of doing an injustice is going to make the Applicants suffer then probably the balance of convenience is favorable to him and the Court would most likely be inclined to grant to him the Application for the temporary injunction and vice versa.

The Appellant argued that the learned Deputy Registrar erred when he did not appreciate his argument that Respondents conduct of dumping construction materials, their continued occupation and construction on the suit land would be changing his family's ordinary use of it for growing food crops and sustenance.


#### **Ground 7;**

The Appellant argued that the learned Deputy Registrar erred when he stated that the Respondents are the registered proprietors since 2005 and have been in occupation of the same since 2003.

He argued that by making the above statements, he determined the rights of the parties which is a preserve of the trial Judge. He further submitted that at this point what was right for the learned Deputy Registrar was to preserve the status quo of the suit land pending determination of the rights of the parties.

In conclusion, the Appellant prayed that this Court be pleased to set aside the Ruling and Order of the learned Deputy Registrar and grant the Injunction.

### **DETERMINATION OF THE COURT**

#### **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.*

In the preliminary, the Appellant prayed that because he is proceeding ex parte in this appeal, I should allow the appeal because it was brought on oath and the Respondent did not reply. This being an appeal arising from a concluded matter that was vehemently defended successfully, it has to be subjected to the same rules of re-evaluation of the evidence that was brought in the trial court.

I therefore have the duty to re-appraise the evidence and reach my own conclusions thereon. Accordingly, the preliminary prayer that I answer the appeal in the affirmative without an exhaustive reconsideration is hereby rejected.


The Appellant rightly relied on the authority of *Kiyimba Kaggwa. vs. Haji Abdul Nasser Katende [1985] HCB 43 in which the conditions for granting a temporary injunction were laid down as follows;*

- *1. That the Applicants have by their pleadings demonstrated a prima facie case with a probability of success.* - *2. The Applicants are likely to suffer irreparable damage if the injunction is denied.* - *3. If court is in doubt as to the above considerations, it will decide the Application on a balance of convenience.*

### *On a prima facie case*;

This ground for proving the merits of an Application for a temporary injunction is the most important of all. The trial court has a responsibility to satisfy itself that before allowing the Application, the main suit has a likelihood of success. Granting an injunction against a party in a suit that has little to no chance of success would in itself unreasonably inconvenience the affected party and would in itself amount to an injustice.

I am therefore, of the view that where the learned Registrar of High Court believes that the suit may not disclose a cause of action or may not be properly before court, s/he should refer the substantive temporary injunction applications, arising therefrom to the trial Judge.

As noted in the background, the Appellant is on record as being the legal representative of the Late Karangira Christopher. The Appellant stated that his benefactor/deceased father secretly sold off the suit property to the Respondents who also acquired the same secretly.

According to the plaint which the Appellant referred this court to, the Late Karangira Christopher sold the suit land to the Respondents for **UGX. 2,500,000/=** in 2003**.** The last paragraph of the agreement attached as "B", discloses that Karangira executed transfer forms in favor of the Respondents, and permitted them to survey, subdivide and to transfer the purchased portion of land into their names.

The Respondents have since transferred the suit land into their names and are now the registered proprietors, since 2005. The above conduct clearly demonstrates that the Late Karangira Christopher parted with possession of the suit land on the 31st October 2003. **See also** *Moya Drift*


*Farm Ltd v Theuri (1973) E. A. 114 in which the court of Appeal for East Africa in which the trial court had dismissed the suit by the registered proprietor of land, on the ground that at the time of the unlawful entry complained of, the proprietor was not in possession. The final decision on appeal was that a person holding a certificate of title has, by virtue of that title, legal possession, and can sue in trespass.*

Critical among the Appellant's complaints is that the learned trial Deputy Registrar erred when he held that the Respondents are in possession of the suit land. The above evidence of purchase, permission to survey, subdivide and transfer the land into the Respondent's names confirms the learned Deputy Registrar's findings that the Respondents are not only the registered proprietors but are also vested with possession of the same. This confirms also that they came into possession with the consent of the then registered proprietor, the Late Karangira Christopher (for whom the Appellant is Administrator), over 20 years ago.

The Appellant's conduct of asserting that possession of the suit land is vested in him amounts to deliberate falsehoods in his affidavit in support of this Application. He even stated that he pleaded in paragraph 3(iii) of the Plaint that he sought to restrain the Respondents from interfering with his "possesion" of the property yet he actually pleaded "ownership." Possession and Ownership have two distinct meanings in the land law in Uganda and particularly where an Order for an injunction is sought. The Appellant's affidavit evidence contains falsehoods that go to the root of his claim in the Application. The parts of his affidavits which contain the false averments that he is possession of the land whereas not, are hereby rejected and this renders his affidavit ineffectual to support his claim. *See Hon. Mr. Justice Barishaki Cheborion in Ruku Francis & Ors vs. Eliphas Ndamaggye Civil Application No. 111 of 2017 (Arising from Civil Appeal No. 80 of 2017)*

Given that the Appellant is the legal representative of the Late Karangira Christopher who sold the suit land to the Respondents, it is not open to him to appreciate that he sold the suit land on the one hand and to then turn around and state that the sale was unlawful. This conduct may, unless the current understanding of this court is proved to the contrary at the hearing of the main suit, amount to approbating and reprobating which is not acceptable at law. This is most likely the position because the Late Karangira Christopher and his legal representative, the Appellant, are one and the same at law as far as estate properties or affairs/assets and liabilities of the deceased are concerned. *See the case of Evans v Bartlam (1937) AC 473 where Lord Russell stated at*


*page 483 that; "The doctrine of Approbation and Reprobation requires for the foundation inconsistency of conduct, as where a man having accepted a benefit given him by a Judgment cannot allege the invalidity of the Judgment which conferred the benefit."*

In the instant case, it appears to this Court that Karangira Christopher (deceased) having sold the suit land, he acquired a benefit from the sale over 20 years ago. It may now not be open for the Administrator of the estate of Karangira Christopher, to turn around to claim that his benefactor acted illegally in disposing of the suit land. This seems like shooting one's self in the foot.

Against the above, preliminary questions, this Court is left in doubt, until the same is dispelled by contrary and convincing evidence that may be adduced at the trial, that this case is most likely improperly on the record of this Court.

In conclusion, the Court is in doubt that if this suit that was brought by *the Administrator of Karangira Christopher* to *challenge the Late Karangira Christopher's actions* and revert land into his estate, which he sold, transferred over 17 years ago and acquired a benefit from the sale, would pass the prima facie case test.

#### *On whether the Appellant may suffer irreparable loss*;

This ground is also not established because, Karangira Christopher, parted with ownership of the suit property when he sold and transferred the same to the Respondents. The suit land has not been registered in Karangira Christopher for the last 17 years. Until and unless this Court finds to the contrary, as of now, the suit land does not form part of the estate of the Late Karangira Christopher.

The Plaint and its annexures which the Appellant referred this Court too, also discloses that the Appellant, his siblings and mother have been aware of the sale since **10th November 2003** as per paragraph 5(ii) of the plaint when they lodged a caveat on Kabula Block 76 Plot 968. The search report attached as annexure **"C"** and dated **3 rd May 2012** indicates that they lodged their caveat on the above date under instrument number **MSK87109.**

This Court raises another question why the Appellant or his family members that he represents as alleged beneficiaries had to wait for their father, husband's death to institute this suit in 2022 to enforce their claim of family property yet they had a cause of action dating as far back as 2003.

The above questions which, perhaps may be answered, at the trial by the Appellant raise further concerns as to the lawfulness of his claims and ultimately, whether he stands to suffer any damage if the temporary injunction is not granted.

In addition to the above, having found that the Late Karangira Christopher for whose estate the Appellant is administrator, already obtained a benefit of **UGX. 2,500,000/=** in 2003 when he sold the suit land, he is not likely to suffer any damage.

In any case, change of user from agricultural to a residential in itself does not amount to irreparable loss as this court can issue a demolition order in the event that the Appellant succeeds in the main suit. Any other inconvenience that the Appellant may suffer, if any, will be compensated by an award of damages.

Having found that the above two grounds were not established by the Appellant, I have no doubt in mind to warrant consideration of the 3rd ground on the balance of probabilities.

I do not find that the learned Deputy Registrar erred in dismissing the Application. The learned Registrar rightly made an honest statement that the Respondents are the registered proprietors, whether the Appellant is the rightful owner, that is for this Court to ascertain after the trial.

As rightly submitted by the Appellant as part of the holding in the Kitekere Daudi precedent, supra, granting of Temporary Injunction Applications is discretionary. The wording itself of *Order 41 rule 1 of the CPR is to the effect that Court in an application where it is stated in affidavit evidence that the subject matter of the suit at risk of being wasted, or alienated, Court may grant the injunction.*

The above wording of the rule and as correctly captured in precedent demonstrates that granting of Temporary Injunction Applications is not a given in every suit pending before court. It requires a Judicious exercise of discretion to determine whether or not to grant an Injunction in the matter.

It follows therefore, that Court should be satisfied that the granting of an injunction is necessary before the same can be granted.

In conclusion, this Court hereby disallows the appeal with no order as to Costs.


The best that this Court can do for the Appellant is to fix the main suit for hearing at the earliest available opportunity since the matter is trial ready. This way, the rights of both parties will be determined in finality without occasioning inconvenience to any of them.

Dated and delivered electronically at Masaka this 24th day of January, 2024.

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### **VICTORIA NAKINTU NKWANGA KATAMBA**

**JUDGE**