Nyende & Another v Kafeero & 3 Others (Miscellaneous Application 155 of 2023) [2024] UGHC 626 (22 May 2024)

Full Case Text

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT JINJA

# **MISCELLANEOUS APPLICATION NO.155 OF 2023**

# [ARISING FROM MISCELLANEOUS APPLICATION NO.14 OF 2023]

## [ARISING FROM CIVIL SUIT NO.008 OF 2023]

1. HAWA NYENDE **2. ABUBAKER NYENDE :::::::::::::::::::::::::::::::::::**

### **VERSUS**

## 1. KAFEERO JAMADA

2. MOHAMMED ALLIBHAI

- 3. COMMISSIONER LAND REGISTRATION - 4. MOHAMMED ABDALLAH ::::::::::::::::::::::::::::::::::

# **BEFORE: HON. LADY JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI RULING**

#### **Introduction**

This Application is brought under Sections 33 & 38 of the Judicature Act, Section 98 of the Civil Procedure Act Cap 71, Order 50 Rule 8 of the Civil Procedure Rules S. I 71-1 seeking orders that;

- 1. The orders and ruling delivered in Miscellaneous Application No. 014 of 2023 on the 22nd of June 2023 be set aside until the determination of Civil Suit No.08 of 2023. - 2. Costs of this application be provided for.

The grounds supporting this application were laid out in the affidavit of Abubaker Nyende but are briefly stated as follows:

- 1. The Applicants filed civil suit No. 8 of 2023 against the Respondents. - 2. The Applicants filed Misc. Application No.14 of 2023 seeking a temporary injunction against the Respondent and seeking to maintain the status quo between the parties. - 3. On the 22nd of June 2023, the learned Deputy Registrar of this court delivered a ruling dismissing the application for a temporary injunction. - 4. The Applicants are dissatisfied with the decision of the Deputy Registrar since;

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- a. The orders of the learned Deputy Registrar delve into matters which are not in evidence and not before this Honourable court. - b. The learned Deputy Registrar relied upon hearsay and submissions at the bar. - c. The learned Deputy Registrar altered the status quo in his ruling and made orders not sought by any party. - d. The learned Deputy Registrar effectively settled the suit in a summary manner that is contrary to the evidence before him and without hearing the evidence in the matter. - e. The learned Deputy Registrar misguided himself as to the law governing injunctions. - f. The fourth Respondent served their affidavit in reply outside the timelines set by the Court and did not seek leave of court to have them admitted out of time, yet the court suo motu admitted them without being moved to do so. - g. The 4th Respondents' submissions were also filed out of time and not served to the Applicants. Similarly, no leave was sought from this Honourable Court to have them validated yet the court nonetheless suo motu admitted them without being moved to do so. - 5. The 1st Respondent (the registered proprietor), 2nd and 3rd Respondents did not contest or even respond to the Application. - 6. The main suit has triable issues which should be considered to determine the true dispute before the court. - 7. The learned Deputy Registrar failed to evaluate the evidence on record and this resulted in his making of a decision without relying on the evidence submitted by the Applicants and the Respondents, which is inconsistent with the authorities submitted by the parties. - 8. The applicants are aggrieved and dissatisfied by the Ruling as it was delivered in error. - 9. The appeal if granted will protect the suit property until the determination of the rights of the parties on the suit property.

The 4th Respondent filed an affidavit in reply wherein under paragraph 3, he opposed the application because he believed it was bad in law, fatally defective, frivolous, and a mere waste of court's time.

# **Representation**

The Applicants were represented by M/S Senkumba & Co. Advocates while the 4th Respondent was represented by M/S Muzuusa & Co. Advocates. The 1st, 2nd,

and 3rd Respondents were served with the hearing notice but were not represented at the hearing.

# **Background**

The Appellants herein filed Miscellaneous Application No. 14 of 2023 seeking a temporary injunction restraining the Respondents, their agents, employees, and anyone acting under the authority of or claiming from the Respondents from entering upon, occupying, disrupting development at, harassing occupants and/or interrupting the Applicant/Appellant's use of the land comprised in Plot No.21 Scindia Road Jinja (hereinafter referred to as "the suit land" until the final disposal of Civil Suit No.08 0f 2023.

The Application was heard and determined by the learned Deputy Registrar who in his ruling dated 22/06/2023 dismissed the application with only one part allowed on the following terms;

- a) The Applicants shall stay or remain in occupation of their one room on condition that they pay/deposit rent including arrears in court on Registrar High Court Account in Bank of Uganda, within one month from this date. - b) The Applicants are restrained from holding out to be landlords of the remaining tenants on the building and other tenants must continue paying rent as before. - c) The Applicants are mere tenants who have no business/right to restrain the registered proprietor from dealing or transacting in his property. - d) The costs of their application shall abide by the outcome of the main suit.

The Applicants/Appellants being dissatisfied with the said orders filed this instant Appeal before this Honourable Court.

# **Determination of the Appeal**

In order to determine this Appeal. The court adopted the following issues;

- 1. Whether the learned Deputy Registrar erred in law and fact when he declined to grant the Temporary injunction prayed for by the Applicants. - 2. Whether the Deputy Registrar erred in law and fact when he issued orders that were not sought by any of the parties. - 3. Whether the Deputy Registrar erred in law and fact when he essentially determined the main suit in a summary manner.

Order 50 Rule 8 of the Civil Procedure Rules grants any party aggrieved by the decision of the registrar a right to appeal against the same to the Judge.

# Order 50 rule 8 of the CPR says;

"Any person aggrieved by any order of a registrar may appeal from the order to the High Court. The appeal shall be by motion on notice."

In the case of Attorney General versus Shah No. 4 of [1971] EA P.50, Spry Ag. President stated that;

"Appellate jurisdiction springs only from statute. There is no such thing as *inherent appellate jurisdiction.* "

The same was also observed in the Judgment of Tsekooko JSC (as he then was) in the case of Baku Raphael Obudra and Obiga Kania versus the Attorney General, Supreme Court Constitution Appeal No.1 of 2005.

In that same case B. J Odoki, CJ (as he then was), also noted as follows; -

"It is trite law that there is no such a thing as an inherent appellate" jurisdiction. Appellate jurisdiction must be specifically created by law. It cannot be inferred or implied."

The Appellate Court such as in the instant case therefore derives its Appellate jurisdiction from the law as elucidated above.

This is a first appeal from the decision of the learned Deputy Registrar. The duty of the first Appellate Court was outlined by Hon. Justice A. Karokora (J. S. C as he then was) in the case of Sanyu Lwanga Musoke versus Sam Galiwanga, SCCA No. 48/1995 where he held that;

"...it is settled law that a first Appellate Court is under the duty to subject the entire evidence on the record to an exhaustive scrutiny and to reevaluate and make its own conclusion while bearing in mind the fact that the Court never observed the witnesses under cross-examination so as to *test their veracity..."*

This Court therefore has a duty to re-evaluate the evidence to avoid a miscarriage of justice as it mindfully arrives at its conclusion as per the case of **Banco Arab** Espanol versus Bank of Uganda, Supreme Court Civil Appeal No.8 of 1998.

The powers of the High Court as an appellate Court are stipulated in Section 80 of the Civil Procedure Act Cap 71. The High Court accordingly has the power to determine the case finally, to remand the case, to frame issues and refer them for trial, to take additional evidence or to require such evidence to be taken and to order a new trial.

According to Section 80 (2) of the Civil Procedure Act, the High Court has the same powers and nearly the same duties as are conferred on courts of original

jurisdiction in respect of suits instituted in it. In light of the above legal provisions, I will move to determine the issues.

# Issue 1: Whether the learned Deputy Registrar erred in law and fact when he declined to grant the Temporary injunction requested by the Applicants

Having considered the submissions of both counsel and perused the ruling of the learned Deputy Registrar, I shall now move to give my determination of issue 1.

Order 41 Rule 1 of the Civil Procedure Rules provides for cases in which a temporary injunction may be granted and it states that:

"Where in any suit it is proved by affidavit or otherwise—

(a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in *execution of a decree; or*

(b) that the defendant threatens or intends to remove or dispose of his or her property with a view to defraud his or her creditors, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the court thinks fit until the disposal of the suit or until further orders."

In Ndema Emanzi Rukandema v Mubiru Henry MA No. 225 of 2013, the Hon. Lady Justice Tuhaise held that:

"Court's duty is only to preserve the existing situation pending the disposal of the substantive suit. In exercising this duty, Court does not determine the legal rights to property but merely preserves it in its actual condition until legal title or ownership can be established or declared."

The grounds that must be proved before an injunction is granted were stated in Kiyimba Kaggwa Vs. Hajji Abdul Nasser Katende (1985) HCB page 43, thus:

(a) Firstly, that the applicant must prove a prima facie case with a probability of success.

(b) Secondly, such injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated for in damages.

I will determine whether the evidence on record was sufficient to satisfy the elements laid out in the Kiyimba Kaggwa case supra.

## Prima facie Case

The Court in Godfrey Sekitoleko and four others V Seezi Peter Mutabazi and two others, C. A Civil Appeal No. 65 of 2011 explained what amounts to a prima facie case as that which is required for the court to be satisfied that a claim is not frivolous or vexatious and that there are serious questions to be tried.

Counsel for the Applicants argued that the much as the Learned Deputy Registrar was well acquainted with the law concerning temporary injunctions, he erred when he delved into the merits of the main suit instead of merely determining whether there was a serious question to be determined by the court. He argued that the Learned Registrar deviated from the law when he stated;

"The Expropriated Properties Act is totally different from the Land Act and parties in the matter need to appreciate this fact and law. The opinion of the learned Attorney General on lack of residual power or authority after the certificate of repossession has a basis in the supreme court authority in the case of Mohan Musisi Kiwanuka Vs Asha Chand SSCA No.14/2002. Annexure " $B$ " to the 4th Respondent's affidavit in reply confirmed that the suit land was repossessed. These points and facts water down the applicant's claim of bonafide occupants and leaves them as tenants to owner land."

Counsel argued that to establish a prima facie case in the substantive suit with a probability of success, the law does not require that the applicant has a plausible case. Instead, it necessitates a determination by the court that the claim is not frivolous or vexatious and that there is a serious issue to be decided at trial (as per Daniel Mukwaya V Administrator General HCCS 630 of 1993).

Counsel for the Respondent argued that it is trite law that for an Applicant to satisfy the court that their main suit raises a prima facie case with a probability of success, he or she only needs to show that there is a serious question to be tried and that the suit is not vexatious and frivolous. He relied on Alley Route Ltd Versus Uganda Development Bank Ltd Misc. Application 634 of 2006.

Counsel further argued that a perusal of the affidavit in support of Miscellaneous Application No.14 of 2023 deponed by Hawa Nyende specifically in paragraphs 1-25, the Applicants made admissions that their parents acknowledged their position as tenants on the suit property, and the same is evidenced by their payment of rent from 1998-2020 as per annexure D and E of the affidavit in

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support. Consequently, the Appellants/Applicants are estopped from denying that they are tenants and thus barred from filing a suit.

Counsel averred that Civil Suit No.008 of 2023 seeks declarations among others that the applicants are bona fide occupants of the suit land and yet they are merely tenants on the suit land per their own pleadings. This makes this suit frivolous and vexatious with no probability of success.

I agree with the principle that during an application for the grant of a temporary injunction, where there is contested affidavit evidence, the conclusion on the controversy should await the trial of the suit on the merits. This was the holding of Lord Diplock in the case of American Cyanamid Co. v Ethicon [1975] 1 ALL E. R. 504 when he held:

"*My Lords, when an application for an interlocutory injunction to restrain*" a Defendant from doing acts alleged to be in violation of the Plaintiff's legal right is made on contested facts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when ex hypothesi the existence of the right or the violation of it, or both, is uncertain and will remain uncertain until final judgment is given in the action. (and further at page 510) ... It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial."

The final resolution on matters of fact ought to await the trial where evidence is adduced and subjected to cross-examination. The principles for a suit disclosing a triable issue are the same and analogous to that in an application to defend a summary suit where the defence should show triable matters that may constitute the defence. Similar principles are used to decide whether to be granted leave to appeal where appeal lies with leave of court. The court determines whether there are serious questions that merit consideration by an appellate court.

There are several contestations in the affidavit evidence that was presented in Miscellaneous Application No.14 of 2023. Firstly, the Applicants/Appellants in paragraphs $1,2,3$ & 4 of the Affidavit in support of that Application averred that Kalidi Nyende was allocated the entire suit land which they occupied and used as their matrimonial home. They aver that they possessed the suit land for over 51 years (since 1972) without interference. However, in paragraph 5 of the affidavit in reply to that Application, the Respondents argued that Kalidi Nyende was only

allocated the business as a tenant and was never allocated or given the suit property.

Secondly, the Applicants made several assertions under Paragraph 12 of the Affidavit in support that pertain to the alleged fraudulent acquisition of the suit property by the first and second Respondents. On the other hand, the 4th Respondent under paragraph 11 of the Affidavit in reply stated that there was no fraud throughout the entire process of repossession and reacquisition of the suit property. Consequently, the determination of who the rightful owner of the property is and whether there was fraud committed by the Respondents can only be done at the hearing of the main suit where parties shall have the ability to adduce and challenge evidence adduced in court. For that reason, I find that there are triable issues and thus a prima facie case is established.

### **Irreparable Injury**

On the second condition of irreparable damage, counsel for the Appellant argued that the Learned Deputy Registrar erred when she relied on the 4th Respondent's unproven assertions that the Applicants are mere tenants occupying a single room. The Applicants have asserted that they are bonafide occupants of the entire suit land and have immeasurable sentimental value over it having been in occupation and possession of the land since 1972. The Applicants claim that losing a matrimonial home, a place of business, or a residence that holds a high sentimental attachment is not compensable by damages.

In response to the Applicants' submissions, Counsel for the Respondent argued that 3rd last Paragraph on page 5 of the Applicants' submission is misconceived and subsequently raises new evidence on appeal which was not properly adduced in line with the rules of evidence because the Applicants/Appellants herein have not pleaded anywhere that the suit property is the matrimonial home. Counsel also reiterated his earlier submissions in the main application that going by the reasoning of the Applicants alleging sentimental attachments to the suit property would open courts of judicature as a play center for tenants to file suits against their landlords claiming to have sentimental attachment to the houses they rent.

He further argued that the Applicants in their Plaint in civil suit No. 8 of 2023 are seeking compensation from the Respondents for the market value of the land which is ascertainable. They also prayed for General damages and thus the applicants failed terribly to prove that they will suffer an irreparable injury that cannot be atoned for inform of damages.

In the case of Mutumba V Crane Bank Ltd Misc. Application 1536 of 2017, Kawesa J held:

Page 8 of 15 Irreparable damage has been defined by the Black's Law Dictionary 9th Edition page 447 to mean; damages that cannot be easily ascertained because there are no fixed pecuniary standards of measurements

It can also be defined to mean damage/loss that cannot be compensated by an award of damages should the Applicants be successful in the main suit. Per Lord Diplock in American Cynamid Co Vs Ethicon Ltd (1975) 1 WLR 316.

In American Cyanamid v Ethicon Limited 1975 AC at page 396, the court noted that the injunction would not be granted;

*'If damages in the measure recoverable at common law would be adequate* remedy and if the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiff's claim appeared to be at that stage'.

Such damage is usually not reversible and cannot be quantified. An injunction is therefore necessary to protect the parties from such harm.

Irreparable injury does not mean that there must not be a physical possibility of repairing the injury but means that the injury must be a substantial or material one that is one that cannot be adequately compensated for in damages. See *Kiyimba* Kaggwa supra.

In Paragraphs 3 and 27 of the Affidavit in support of Miscellaneous Application No.14 of 2023, the Applicants stated that the suit property has been their matrimonial home since 1972 and they have a great attachment to it. This evidence is contrary to the assertion by counsel for the Respondent that the issue of matrimonial property is only introduced on appeal. I therefore find that the Respondents' submission as regards the introduction of new evidence is not grounded and is overruled.

On perusal of the 4th Respondent's evidence, I have noted that the issue of the suit property being a matrimonial home and a place of business of Kalidi Nyende was not contested by the Respondents. For the purposes of maintaining the status quo of this suit property, I will consider it pending final determination in the main suit. I agree with counsel for the Applicant that damages from the loss of a matrimonial home cannot be quantified and as such is irreparable. It is also pertinent to note that since the cause of action revolves around the recovery of land, it is unfeasible at this stage to accurately determine the extent of potential damages. This underscores the fact that the Applicants are likely to suffer irreparable injury should the court not grant the injunction.

I am alive to the assertion made by counsel for the Respondents where he argued that going by the reasoning of the Applicants alleging sentimental attachments to the suit property would open courts of judicature as a play center for tenants to file suits against their landlords claiming to have sentimental attachment to the houses they rent. I will note that much as counsel for the Respondent has a valid point, this court has not yet established the rights of either party in the property. This determination shall be handled in the main suit. I give assurance to the Respondents that should this court find in the main suit that the Applicants are mere tenants, it will have to consider the argument made by counsel above. However, at this point, the court's duty is charged with maintaining the status quo and not determining the rights of the parties in the suit property.

For the above, reasons I find that should the Appellants lose the suit property, it cannot be compensated for adequately in damages. The court finds that the Appellant might otherwise suffer irreparable injury which would not adequately be compensated for in damages.

## **Balance of Convenience**

Regarding the condition of Balance of convenience, Counsel for the Applicant argued that the Learned Deputy Registrar stated

## "the Applicants are in possession of one room of the suit property."

He went on to say this determination was made despite the fact that the learned Deputy Registrar did not visit the locus to establish the veracity of the statement but merely relied on the 4th Respondent's unsubstantiated averments. He also averred that in the affidavit in reply, the 4th Respondent did not claim possession of any part of the suit property. On the contrary, it is the Applicants who claimed that they have been in possession of the property.

Counsel for the 4th Respondent argued that since the Applicants herein led affidavit evidence showing that they are tenants of the suit property while on the other hand, the 4th Respondent led evidence to show that he is the equitable owner of the suit having purchased the same from the 1st Respondent who was the proprietor, the balance of convenience tilts in the 4th Respondent's favour.

It is only where there is doubt as to whether there is a prima facie case or irreparable damage that this Court resorts to determining the case on a balance of convenience. I have found that there was a prima facie case with a likelihood of success and the Appellants are likely to face irreparable injury if the injunction is not granted.

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In Rashida Abdul Hanali v Suleiman Adrisi Miscellaneous Civil Application No.11 of 2017, Justice Stephen Mubiru stated that;

"since the above two conditions have been met, it is not necessary to consider the last factor which is the balance of convenience except for the purposes of determining how extensive the ambit of the restraint imposed should be."

Consequently, I will now move to resolve the aspect of balance of convenience to determine the extent of restraint required. The Black's Law Dictionary, 9th **Edition Page 163** defines balance of convenience to mean;

"a balancing test that court uses to consider whether or not to grant an injunction ..... weighing benefits to the plaintiff against the burden on the defendants...."

In Gapco (U) Ltd Vs Kaweesa Badru HCMA No. 259/2013 (Unreported), the court held that;

"Balance of convenience literally means that if the risk of doing an injustice is going to make the applicants suffer then probably the balance of convenience is favourable to him/her and the court would most likely be inclined to grant to him/her the application for a temporary injunction."

The Respondents argued that since they bought the suit property, they had an equitable interest in the property and so the balance of convenience tilts on their end. They argued that they get rent from the suit property and that the Appellants are currently masquerading as the landlords. However, the Applicants have a strong hold on the aspect that they are currently in possession of the suit property which they have held since 1972.

The Applicants averred that the loss of the suit property to the Respondents would not only mean losing a matrimonial home with great emotional attachment but also a commercial enterprise. It was also not disputed that the Applicants are in current possession of the suit property.

Since the suit property is the home of the Applicants and at the same time their place of business, and since the 4th Respondent is not in current possession of the suit property but is just asserting that he is an equitable owner of the property, I find that the balance of convenience tilts on the end of the Applicants. This is because the actions of the Respondents in respect to the suit property if not temporarily halted till the determination of the main suit, may leave the Applicants homeless or without a business and source of livelihood.

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The final aspect that I will deal with in this issue is the question of the status quo. Counsel for the Applicant argued that the learned Deputy Registrar did not make a finding as to the status quo. He further argued that the status quo was that; the Appellants' family had been in physical possession of the suit property since 1972 and stopped paying rent in 2020 upon discovery of fraud. On the other hand, the 4th Respondent only asserted that he was an equitable owner and landlord of the suit property.

According to the evidence on record from both parties, the Appellants are currently in possession of one side of the building (21B). The Appellants claim to be staying on that side of the building as well as renting out some units on the same side and adduced evidence to that effect. The Respondent is alleging to be the equitable owner of the entire property and therefore landlord. The 4th Respondent has claimed that he has been receiving rent from tenants except from the Applicants and tenants who were paying rent to the Applicants. This was the status quo during the hearing of Misc. Application No.14 of 2023.

In Paragraph 8 (d) (i) in the affidavit in Rejoinder to this Application, the Appellants contend that as a result of the orders of the learned Deputy Registrar, the 4th Respondent changed the status quo of the suit land when he sealed off the shops of the tenants of the Appellants. So this therefore is the current status quo as a result of the ruling by the Learned Deputy Registrar.

It is well established that in applications for temporary injunctions, the court has a duty to protect the interest of the parties pending the disposal of the substantive suit. See Ndema Emanzi Rukandema V Mubiru Henry MA No.225 of 2013, Farida Nantale versus Master Managers & Traders Limited HHC No.13 of 2921. Giella Vs Cassman Brown & Co. Ltd (1973) 1 EA.

The court's power to grant a temporary injunction is extraordinary in nature and it can be exercised cautiously and with circumspection. A party is not entitled to this relief as a matter of right or course. Grant of a temporary injunction being equitable remedy, it is in the discretion of the court and such discretion must be exercised in favour of the plaintiff or applicant only if the court is satisfied that, unless the respondent is restrained by an order of injunction, irreparable loss or damage will be caused to the plaintiff/applicant. The court grants such relief ex debitio justitiae, i.e. to meet the ends of justice. See Section 64 of the Civil Procedure Act.

In light of the foregoing, I find that the learned Deputy Registrar erred in law and fact when he declined to grant the temporary injunction sought by the Appellants

under Miscellaneous Application No.14 of 2023. I find that the Application for a temporary injunction was a proper one and should have succeeded.

## Issue 2: Whether the Deputy Registrar erred in law and fact when he issued orders that were not sought by any of the parties.

This issue is premised on the order of the Learned Deputy Registrar in the ruling in Misc. Application No.14 of 2023 which says;

The Respondents are at liberty to access and where necessary to improve the suit property

Counsel for the Appellants argued that the decision of a case cannot be based on grounds outside the pleadings of the parties. He argued that though the court has a very wide discretion in granting reliefs, the court, however, cannot grant a relief not prayed for by the parties. Counsel relied on the Hannington Wasswa and Anor V Maria Onyango Ochola and Others SCCA NO.22 OF 1993 and Manohar Lal V Ugrasen (2010) AIR (SC) 2210.

Counsel for the Respondents argued that the Court is dressed with powers and discretion to grant orders necessary to ensure justice is dispensed. (section 33 of the Judicature Act and Section 98). Counsel further argued that the orders sought by the Appellants in Miscellaneous Application No.14 of 2023 were geared towards having the 4th Respondent restrained from entering the suit property and therefore the learned Deputy Registrar was justified in giving that order after finding that the Appellants were mere tenants.

To determine this issue, I will refer to the orders sought by the Applicant in Miscellaneous Application No.14 of 2023

1. A temporary injunction restraining the respondents, their agents, employees, and anyone acting under the authority of or claiming from occupying, disrupting Respondents from entering upon, the developments at, harassing occupants and or interrupting the applicant's use of the land comprised in Plot 21 Scindia Road, Jinja until the final disposal of the main suit.

I do agree with the counsel for the Respondents that the above order sought by the Applicants was aimed at restraining the entry and usage of the suit property by the Respondents till the disposal of the main suit. The court was bound to give a ruling in respect to the order that had been sought. The powers to grant such orders are enshrined in section 33 of the Judicature Act and section 98 of the Civil Procedure Act.

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Counsel for the Appellant relied on Hannington Wasswa and Anor V Maria Onyango Ochola and Others where the Supreme Court held that;

"Relief in court matters is not an entitlement but must be pleaded and justified before it can be granted. A court cannot legally move itself to grant a remedy in the course of its ruling when parties did not address it on such remedies. The court of Appeal could not move itself to grant an order that was never sought." (emphasis is mine)

From the preceding paragraphs, it is clear that the Appellants sought an order restraining the Respondents from entering the suit property. This order was a remedy that was presented to the Learned Deputy Registrar for consideration. The learned Deputy Registrar having found no merit in the Application decided to deny granting the order sought.

I therefore find that the Learned Deputy Registrar was only exercising his discretion as a judicial officer when he granted that order. This issue is therefore resolved in the negative.

## Issue 3: Whether the Deputy Registrar erred in law and fact when he essentially determined the main suit in a summary manner.

This issue is equally premised on one of the orders given by the Learned Deputy Registrar in the ruling of Misc. Application No.14 of 2023.

"the Applicants should stop holding out to be owners or claiming rent from the other occupants. They cannot restrain the respondents from dealing with their property, where they are tenants"

The Appellants argue that by stating the above, the learned Deputy Registrar summarily determined the rights of the parties which was erroneous as no evidence pertaining to ownership had been adduced. Counsel relied on American Cyanamid V Ethicon Ltd Supra to buttress his submission.

This issue has been partly handled in issues 1 and 2 and I will therefore just conclude that the court at this point of hearing this Application is charged with maintaining the status quo and not determining any substantive rights as that should be handled in the main suit. Cyanamid V Ethicon Ltd Supra. I find that the learned Deputy Registrar erred when he determined the rights of the parties in an Application for a temporary injunction.

The court will therefore set aside the ruling of the Learned Registrar in Miscellaneous Application No. 14 of 2023 delivered on 22nd of June 2023.

This appeal therefore succeeds and I order as follows;

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- 1. A temporary injunction is hereby granted restraining the Respondents, their agents, employees and anyone acting under the authority of or claiming from the Respondents, from any further actions pertaining to sale, mortgage, transfer, disposal, eviction, demolition, threats, intimidation or any other form of interference with the suit property until the final disposal of Civil Suit No.08 of 2023. - 2. Each party shall bear its costs.

I so order.

FARIDAH SHAMILAH BUKIRWA NTAMBI **JUDGE**

Delivered on the 22nd day of May 2024