Ssanyu v Bukorwe (Civil Miscellaneous Appeal 3 of 2022) [2023] UGHC 321 (9 February 2023)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA CIVIL MISCELLANEOUS APPEAL NO. 003 OF 2022 (ARISING FROM MISCELLANEOUS APPLICATION NO. 191 OF 2021) (ARISING FROM HCT MISCELLANEOUS APPLICATION NO. 30 OF 2021) (ARISING FROM HCT CIVIL SUIT NO.01 OF 2021). SSANYU ALLEN (SUING AS A WIDOW AND AN ADMINISTRATRIX TO THE ESTATE OF THE LATE MUGISHA S. BISHANGA ......... APPELLANT/APPLICANT

VERSUS

NORBERT BUKORWE ....................................

### **RULING**

### Before: The Hon. Lady Justice Victoria N. N. Katamba BACKGROUND

The Applicant instituted the HCCS No. 01 of 2021 against the Respondent and the Commissioner Land Registration for trespass to land and unlawful registration of the Respondent to land that was previously registered in the Applicant's now deceased husband for whose estate, she is now Administratrix. The Applicant applied successfully for a temporary injunction which was later varied by the same Deputy Registrar that had granted it for allegedly changing the status quo. The Applicant was dissatisfied by the decision of the learned Deputy Registrar that led to the variation of the temporary injunction and thus instituted the instant appeal.

#### Appellant's written submissions

The Appellant submitted that she brought the appeal under Article 139 of the Constitution of the Republic of Uganda 1995, as Amended, Order 50 rule 8 of the Civil Procedure Rules SI-71 as Amended, Section 16 and 33 of the Judicature Act Cap 13 seeking for the following orders;

- (a) Order (2), (3) and (4) arising from Miscellaneous Application No. 191 of 2021 be set aside for being issued illegally. - (b) The costs of this appeal/application be borne by the respondent.

.. 1<br>910212023

#### Grounds of appeal

- 1. The Learned Deputy Registrar erred in Law and Fact when she ordered that the Respondent should cultivate the suit property and the Appellant's live stock should not roam on the suit property which orders dispose of the main suit. - 2. The Learned Deputy Registrar erred in Law and Fact in her ruling Vide Miscellaneous Application No. 191 of 2021 when she made Order (2), (3) and (4) in contrast of order $(1)$ . - 3. The Learned Deputy Registrar erred in Law and Fact when she failed to re-visit locus before making her final orders Vide Miscellaneous Application No. 191 of 2021 - 4. The Learned Deputy Registrar erred in Law and Fact when she varied her own order and reversed the application for the temporary injunction Vide Miscellaneous Application. No 030 0f 2021 from the Appellant to the respondent which orders were a nullity, as she never had powers to vary her own earlier order.

#### **Resolution of the grounds**

The Appellant submitted that whereas the Learned Deputy Registrar at Page 3 paragraph 2 of her ruling cited the case of Prof. Oloka Onyango & Ors Vs Attorney General (Constitutional Petition No 6 of 2014) for the proposition that while considering Order 8 rule 3 Civil Procedure Rules as Amended, every allegation in a plaint, if not specifically or by necessary implication denied in pleading by the opposite party, shall be taken to be admitted. The Appellant submitted that she denied all the allegations of tampering with the status quo of the suit property Vide Miscellaneous Application No 191 of 2021 in her affidavit in reply to the Notice of Motion.

#### Ground one

The Learned Deputy Registrar erred in Law and Fact when she ordered that the respondent should cultivate the suit property and the applicant's live stock should not roam on the suit property which orders dispose of the main suit.

The Applicant submitted that she indicated under Paragraph 4 of her affidavit in support of the chamber summons at paragraph 7 of her affidavit in support of the chamber summons vide Miscellaneous Application No 30 of 2021, that she had been in occupation of Buddu Block 852 plot 54 measuring 40.46hectares since 2004. That she was using it for grazing cattle and that is

$4017$ <br>9/02/2023

where she derives sustenance for her family, so should the status quo be changed, she will suffer irreparable damages.

#### Ground two

The Learned Deputy Registrar erred in Law and Fact in her ruling vide Miscellaneous Application No. 191 of 2021 when she made Order (2), (3) and (4) in contrast of order (1). The Appellant wondered as to how the status quo can be maintained as per the orders of the Learned Deputy Registrar by restraining the Appellant from using the suit land yet she has been in possession of it for 18 years. The Appellant asserted that Orders 2, 3 and 4 of Miscellaneous Application No.191 are in contrast to Order 1.

The Appellant relied on the case of Kiyimba Kaggwa Vs Hajji Abdul Nasser Katende (1985) HCB Odoki (as he then was) for the proposition that the most important purpose of the granting of temporary injunctions is to perverse the status quo until the question to be investigated in the main suit is finally disposed of.

#### Ground three

## The Learned Deputy Registrar erred in Law and Fact when she failed to re-visit locus before making her final orders Vide Miscellaneous Application No. 191 of 2021

The Appellant also criticized the learned Deputy Registrar for her omission to re-visit the locus to confirm the alleged tampering with the status quo on the land before making the impugned orders.

#### Ground four

## The Learned Deputy Registrar erred in Law and Fact when she varied her own Order and reversed the application for the temporary injunction Vide Miscellaneous Application.

The Appellant also submitted that the learned Deputy Registrar did not have the powers to vary the order of the temporary injunction and that her action was a nullity at law.

In conclusion, the Appellant submitted that her appeal was competent and properly before court because the law does not specifically require drafting of the order from the decision of the Registrar before preferring an appeal against her decision.

### DETERMINATION OF COURT

I have neither seen a hard copy nor an electronic copy on email of the Respondents submissions despite having given directives to both parties to file written submissions in this matter. I will answer jointly grounds of appeal 1 and 2; as well as grounds 3 and 4.

$9102/2023$

#### Grounds 1 and 2;

I have considered the submissions of the Applicant on these grounds and I agree with her that the learned trial Deputy Registrar erred in finding that the status quo prevailing at the time of institution of the suit should be maintained by both parties and yet went on to restrict the Applicant's user rights while permitting those of the Respondent at the same time.

### On Grounds 3 and 4:

This court organized a schedule for visiting locus before determining the instant application at the instance of the Applicant. The locus visit was fixed for 24<sup>th</sup> November 2023 but the Applicant only served the notification for locus visit on the Respondent, a day to the event. It was therefore not surprising that the Respondent was unable to attend the locus hearing. Following the above state of affairs, Counsel for the Applicant implored this court to dispense with locus visit altogether.

It would be to aprobate and reprobate for the same Applicant to be permitted to criticize the learned Deputy Registrar for having failed to carry out a locus visit before she made the impugned orders that varied the grant of the temporary injunction in her favor.

Accordingly, grounds 3 and 4 are rejected.

I therefore find it necessary at this point in time to re-assert that both parties should maintain the status quo currently prevailing and find an amicable way of co-existing since both parties claim to be in possession. On its part, the court has undertaken to expeditiously hear and dispose of this contentious matter.

Both parties are hereby directed to file a Joint scheduling memorandum in the main suit by 24<sup>th</sup> day of February 2023.

Both parties shall file and serve each other all witness statements by 10<sup>th</sup> day of March 2023.

The main suit is hereby laid down for hearing on Friday the 17<sup>th</sup> day March 2023 at 11:00am.

This way, the rights of the parties shall be determined in finality

The Appeal partly succeeds, with no order as to costs.

I so order.

Dated at Masaka this. 9<sup>1</sup> January 2023

VICTORIA NAKINTU NKWANGA KATAMBA