Osuna v Ziwa (Civil Suit 246 of 1994) [1994] UGHC 48 (9 May 1994)

Full Case Text

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## aTHS ... . ,. « REPUBLI3 r ■••«............ » \*- \* •OFv'• • UGANDA E. THS.. HIGH COURT..® UGANDA AT K. WALA CIVIL SUI% NO. 246/24

OSUNA OTWANI: .... '.................... PLAINTIFF 1.

## VERSUS

ABDUL ZIWA: .............................................*DEFENDANT* BEFORE: The.. Honourable. Laay^ Justice^. KireJu

## R U LING

This is an application under Order 37 r 1 and 9 of Civil Procedure Rules and seeks for an order to restrain the respondent from damaging alienating and disposing of the property in dispute. • \*

The respondent in this application was served with Chamber Summons but he refused to endorse thereon. The affidavit of service dated 2C/4/94 was filed in court. Having satisfied myself tha-c the respondent was duly served and there being no information on the court file as to why he was not in court for the hearing of this application, I allowed the applicant/plaintiff to proceed ex-parte with the application.

The application is supported by the affidavit of the applicant Osuna Otwani sworn on 2O/2P/94\*

At the hearing of this application the applicant was represented by learned counsel Mr. Emoru of M/S Emoru & Co. Advocates. -

The main ground of this application as set down in the Chamber Summons and the supporting affidavit is that, the applicant is the owner omotor vehicle trailer Mo. UWJ 162 which is currently in the possession of the respondent/ defendant and is grounded. The respondent has started dismantling the s tid i.io ^ur vehicle, he has already removed the tyres and some parts unknown to the applicant and is ..../2...

disposing of the same. If tl •? status quo is not maintained the respondent/defendant will continue removing parts and vandalising the said vehicle • he subject matter of the suit and the applicant will suffer irreparable damage. In order to stop the vandalising, he prayed that the vehicle be removed from the possession of the respondent and be preserved by putting it in tne custody of the police until final disposal of the suit. Mr. Emoru counsel for the applicant suggested Central Police Station Kampala being the most convenient as it is. nearest to where the vehicle is now. Counsel argued that the provisions of Order 37 allows this court to make the order prayed for. And that as tho vehicle is grounded- rhe respondent would not be inconvenienced in anyway.

The purpose of a temporary injunction is to preserve matters in status quo until the question to be investigated in the main suit can be finally disposed off. The condition to be followed were set down in the case of Giella,vs . Qassaman. Brown. Co.., Ltd.^ 1j>73. bo whether the applicant has a prima facie case with the probability of success. The applicant pleaded ii his plaint that the trailer belonged to him, and- he produced a sale agreement between him and one Sammuel •'iuwouge who is supposed to have sold it to him on 2f/;/o9 although the registration book still shows that it belongs to Summuel Muwongc. However in the absence of ,aiy rifidavit in reply to contravert what the applicant abates, that the lorry belongs to him, the court pan bat believe the applicant. I have therefore found thj> the up>licant/plaintiff has a prima facie case with probVoila ty ' ->f success in the main suit.

The next principle to be considered is whether the applicant will suffer irreparable injury if the vehicle is not removed from the possession of the respondent who is vandalising it. Irreparable damage was defined to mean substantial injury which cannot be adequately atomed for in damages:- Buikwe Estates Coffee Works Ltd. and 2 others vs:Lutabi HCCS No. 700/50 refer. Counsel for the applicant submitted that the applicant as a reknown transporter has a sentimental value for his trailer and if it is left with the respondent he will suffer irreparable damage. However from the affidavit of the applicant paragraph 4, it appears that the trailer is already in a sorry state, the tyres are already taken plus some parts unknown to the applicant. The purpose of an injunction is to preserve the status quo pending disposal of the substative suit, but in this case it appears that the trailer is already vandalised and there is not much to preserve, court cannot give an order in vain. The vehicle is grounded. The applicant in his plaint is claiming the delivery of the trailer or its financial value. I am sure if the applicant succeeds in the main suit the injury he may have suffered would be adequately atomed for in damages.

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intained

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On balance of inconvenience, counsel argued that since the vehicle is grounded, the respondent would not he inconvenienced if it removed and kept at a police station until final disposal of the suit. As the vehicle is not moving, it would appear that neither of the parties would be inconvenienced by its removal.

In the result I find that there is nothing to preserve as the trailer is already vandalised and secondly the applicant will not suffer irreparable damage as he can be . adequately compensated for the loss or damage to the trailer

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by award of damages.

I accordingly dismiss •'die application. The applicant to bear the costs of this application.

M. Kireju . O.. RJ5. JS 9/5/94

## 9/5/94:

Mr. 'RniOru for the applicant abfeent \* hie ol<V?k

Patrick Longaria in court.

Miss Getrude Mududu aourt 0 sk clerk\*

Ruling delivered before the above.

M. Kireju

Judge j>/5/94