Rwamurungu v DFCU Leasing Co. Ltd. (Civil Appeal No. 60 of 2007) [2009] UGCA 69 (15 January 2009)

# THE REPUBLIG OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CORAM: HON. JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ HON. JUSTICE S. G. ENGWAU, JA HON. JUSTICE C. N. B. KITUMBA, JA 5

## CIVIL APPEAL No.6O OF 2OO7

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### FLORAH RWAMARUNGU APPELLANT

#### VERSUS

#### DFCU LEASING CO. LTD. RESPONDENT t5

IAppeal from the ruling of the High Court ot Uganda (Commercial Division) at Kampala (Egonda- Ntende, J), dated 20/9/2007 in Miscellaneous Application No.0436 of 20071

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## JUDGEMENT OF KITUMBA, JA.

This is an appeal against the ruling of the learned trial judge whereby, he dismissed with costs the appellant's application for temporary injunction.

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The following are the facts of the appeal.

The appellant filed a suit in the High Court against the respondent, seeking inter alia, a permanent injunction to restrain the respondent from selling mortgaged property comprised in Plot 2, Block 52, Folio 49,Vo1,1 1 l3,Nyabushozi, [\4barara. She further made an application for a temporary injunction to restrain the respondent from selling the suit

property, which was mortgaged, to the respondent by her

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husband. Before the disposal of the application, the suit property had been sold to a third party following a warrant of attachment issued by the High Court in HCT-00-CC-CS-0613-2005, which was a suit between her husband and the

respondent.

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The application for the temporary injunction was dismissed on grounds, inter alia that, the applicant did not prove irreparable loss and that the application sought to restrain a sale of the suit property, yet the status quo had changed.

- The appellant being dissatisfied with the ruling appealed to this Court on three grounds, which read. l0 - 1. The learned trial judge erred in law and fact when after finding that the appellant had a prima facie case did not allow the application on a balance of convenrcnce. - <sup>2</sup> The learned trial judge erred in law and fact when he held that the appellant being evicted from the family land where she /ives and derives livelihood did not constitute irreparable /oss and damage. - 3 The learned trial judge erred in law when he found that the suit property had already been sold and in effect that there was no sfafus quo to preserue.

She prayed court to allow the appeal, set aside the orders of the High Court substitute it with an order allowing the application for temporary injunction. She prayed costs of the appeal in this Court and in the High Court.

During the hearing of the appeal, the appellant was represented by, learned counsel, [Vlr. Kenneth Kakuru and learned counsel, [/rs. Ruth Sebatindira appeared for the respondent.

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Counsel for both parties argued all the three grounds jointly. [\4r. Kakuru contended that the learned trial judge failed to exercise his discretion properly when he dismissed the appellant's application for a temporary injunction. He argued that since the judge had held that the appellant had made

- out a prima facie case, he should have allowed her application for a temporary injunction on a balance of convenience. He submitted that the land in issue was family land and the appellant was staying on the same. However, t5 - he went on to hold that the issue of legality of sale of that could only be decided in the main suit. l0

He submitted further that the appellant would suffer irreparable loss and damage. He criticised the learned trial judge for holding otherwise.

He argued that the judge erred when he held that he could not grant a temporary injunction because the land was already sold and there was, therefore, no status quo to maintain. Counsel submitted that the sale was illegal.

ln reply, counsel for the respondent supported the ruling of the learned trial judge. She contended that the judge used his discretion properly. She submitted that the property in issue had already been sold persuant to the warrant of attachment issued by court in High Court, Civil Suit No.613 of 2005. This was clearly shown in the affidavit evidence of Joshua Odoc Ogwal and the annextures thereto. According to the respondent's counsel, since the sale was completed, there was no status quo to preserve. l0

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The principles for granting injunction are well settled. lnjunction is discretionary remedy. Before an injunction is granted, the applicant must show a prima facie case with the probability of success. The injunction will normally not be granted unless the applicant might suffer irreparable loss or injury and when a court is in doubt, it will decide the application on a balance of convenience.

ln the instant appeal, the learned judge quiet rightly found that there was a prima facie case for determination whether

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land comprised in Plot 2, Block 52, Folio 49, Vo1.1113, Nyabusozi, l\Ibarara, and Plot 15, Ndibarema Road, lVbarara are protected as "any land or land on which the person ordinarily resides with his or her spouse and from which

- they derive their sustenance". He was of the view that this could only be determined after a full trial. The learned judge held that the appellant had not shown that the appellant would suffer irreparable loss and damage if the temporary injunction was not granted. - The judge correctly held that that loss of income does not constitute irreparable loss and damage, because it can be quantified and a toned in damages. Like the learned judge, <sup>I</sup> find it difficult to believe that the appellant had no where to go because in annexture C to her own affidavit she describes Plot 15 Ndibarema Road, l/lbarara as <sup>a</sup> l0 ts - matrimonial home/residence.

The legality of the sale of the land or otherwise could not be determined in the application for temporary injunction. The land had already been sold and there was no status quo to maintain.

By reason of the foregoing, the issue of balance of convenience could not at all be considered in the appeal before court.

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Granting an interim injunction is exercise of judicial discretion and the appellate court will not interfere with it, unless it is shown that the discretion has not been exercised judicially, see GIELLA-V-CASSMAN BROWN & CO. LTD [1973] E. A 358.

I am unable to fault the learned trial judge for not havrng exercised his discretion judicially. l

This appeal is devoid of merit.

ln the result, I would dismiss it with costs to the respondent.

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### C^t-rS. C. N. B. Kitumba JUSTICE COURT OF APPEAL

2q lor- \ <sup>01</sup>

## . I'HE REPI. IBLIC OT- I. IGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CORAM, HON. JUSTICE L. E. M. MUKASA-KIKONYOGO. DCJ HON, JUSTICE S,G. ENGWAU. JA HON. JUSTICE C,N,B, KITUMBA, JA

### (llvlt- APPEAL No. 60 OF <sup>2007</sup>

FLORAH RWAMARUNGU APPELLANT

VS

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DFCU LEASING CO, LTD . RESPONDENT

lAppeal.from the ruling oJ the High (lourr of Uganda (('ommercial l)ivision) or Kompala (Egondo Ntende,,l), ddted 20,'9.t2007 in Miscellaneous Application No. 0136 of 2001

#### JUDGMENT OF L. E. M. MUKASA-KIKONYOGO. DCJ

I have read the draft copy of the judgment of learned Justice C. N. B. Kitumba. I agree with her conclusion that the appeal must fail. Since Engwau, JA also concurs, this appeal is dismissed with costs.

Dated at Kampala. Uganda. thirrYl:y of February, 2009

L,E,M A- NYOGO, DCJ

# THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CORAM: HON. JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ. HON. JUSTICE S. G. ENGWAU, JA. HON. JUSTICE C. N. B. KITUMBA, JA.

## CIVIL APPEAL No.6O OF 2OO7

#### BETWEEN

### FLORAH RWAMARUNGU APPELLANT

#### AND

## DFCU LEASING CO. LTD. :::::::::::::r: RESPONDENT

Ieppeal from the ruling of the High Court of lJganda (Commercial Division) at Kampala (Egonda - Ntende, J), dated 20/9/2007 in Miscellaneous Application No.0436 of <sup>20071</sup>

## JUDGEMENT OF ENGWAU, JA.

I had the benefit of reading, in draft form, the judgment prepared by my learned sister C. N. B. Kitumba, JA I enttrely agree with her reasons for dismissing this appeal with costs.

I have nothing more useful to add

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--' t, /A Dated at Kampala, this il .'. .., day of IR-S ..2009

.\ S. G. ENGWAU JUSTICE COURT OF APPEAL