Sserwanga and Another v Commissioner for Land Registration (Civil Miscellaneous Application 56 of 2024) [2024] UGHC 691 (8 April 2024)

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MPIG **MISCELLANEOUS APPLICATION NO. 056 OF 2024** (Arising from Miscellaneous Application 40 of 2024) (Arising from Miscellaneous Application No. 14 of 2024). (Arising from Civil Suit No. 38 of 2008)

| | 1. SSERWANGA JAMES | | |----|--------------------------------------------------------------------------------|--| | | <table> <tbody> 2. LIVINGSTONE LUYOMBYA APPLICANTS </tbody></table> | | | 10 | VERSUS<br>a ta ta ta ta ta ta ta ta ta ta ta ta ta | | | | <table> COMMISSIONER FOR LAND REGISTRATION RESPONDENT</table> | |

## BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK

## Ruling

- The applicants brought the instant application by way of Chamber Summons 15 under Section 38(1) & (3) of the Judicature Act, Section 98 of the Civil Procedure Act and Order 41 Rules 1, 2 and 3 of the Civil Procedure Rules against the respondent seeking the following orders: - a. That a temporary injunction doth issue against the respondent restraining them, or their respective agents, or any person(s) claiming under them any title, right or lien, from altering the proprietorship of land comprised in Butambala Block 59 Plots 95, 96, 97, 98, 99, 100, 101 and 102 formerly Plot 37 at Nyanama, Butambala District pending the hearing and determination of the Applicants' main application vide Miscellaneous Application No. 40 of 2024 which is before this Honorable court. - b. Costs of this application be provided for.

The application is supported by an affidavit sworn by the applicant.

Representation:

M/s J. P. Muganga Advocates & Solicitors appeared for the applicant.

Resolution: 30

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Order 41 Rule 1 of the Civil Procedure Rules provides for instances when a temporary injunction may be granted as follows;

"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, make such other order for the purpose of staying and preventing $or$ 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 the case of Kiyimba Kaggwa v. Hajji Abdul Nasser Katende (1985) H. C. B 43, the grounds which must be proved before an injunction is granted were laid out as follows;

- a. That the applicant must show a prima facie case with a probability of success. - b. That such injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated for in damages. - c. That if the court is in doubt, it would decide an application on a balance of convenience.

In regard to the first ground the applicant only must show that there is a prima facie case with a probability of success and at this stage, court does not delve deep into the merits of the case but rather court determines that there is a plausible case and the claim is not frivolous or vexatious. The applicant must show that there is a serious issue to be determined by court. (See: Daniel Mukwaya v. Administrator General, HCCS No. 630 of 1993 (unreported). The applicants in this case have demonstrated that the issue for determination in the main application is not frivolous and vexatious where of the earlier orders granted by court would greatly prejudice them if this application is not granted. The applicants in my view have proved that they have a prima facie case with a probability of success.

Secondly, it is my considered view that the applicants through the affidavit in support of the application have demonstrated to this court that there is an eminent danger of them being deprived of their interests before the main application is determined and this will also interfere with the status quo. That the balance of convenience is in favour of the 1<sup>st</sup> applicant and his transferees who are the current registered proprietors. And that the applicants will suffer irreparable loss and damage, which cannot be atoned to by an award of damages if the applicants' and third parties' titles are cancelled by the respondent. Thus, the grant of the order of

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a temporary injunction is to maintain the status quo necessary so that this court can effectively and completely adjudicate the issues in the main application. I find that the applicants have also proved this ground.

In the case of Jayndrakumar Devechand Devani v. Haridas Vallabhdas Bhadresa & Another, Civil Appeal No. 21 of 1971, the concept of balance of convenience was $\mathsf{S}$ explained as follows;

> "Where any doubt exists as to the plaintiff's right, or if his right is not disputed, but its violation is denied, the court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the defendant, on the one hand, would suffer if the injunction was granted and he should ultimately turn out to be right, and that which the plaintiff on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right. The burden of proof that the inconvenience which the plaintiff will suffer by the refusal of the injunction is greater than that which the defendant will suffer, if it is granted, lies on the plaintiff."

Thus, in determining whether the balance of convenience favours the applicants or not, court must look at the loss likely to be suffered if the injunction is not granted or the prejudice likely to be suffered by the respondent. The 1<sup>st</sup> applicant 20 in this case has already subdivided former Plot 37 Block 59 of the suit land which he occupied and there are third parties' interests that will be affected if this injunction is not granted that will substantially also affect the applicants' interests. If the application is granted, it will not prejudice the respondent in any way. I find that the applicants have also proved this ground. 25

In a nutshell the applicants have proved all the grounds required for the grant of an application for a temporary injunction. The application is here by allowed pending the determination of the main application vide Miscellaneous Application No. 40 of 2024. The following are the orders;

- a. A temporary injunction is hereby issued against the respondent restraining them, or their respective agents, or any person(s) claiming under them any title, right or lien, from altering the proprietorship of land comprised in Butambala Block 59 Plots 95, 96, 97, 98, 99, 100, 101 and 102 formerly Plot 37 at Nyanama, Butambala District pending the hearing and determination of the Applicants' main application vide Miscellaneous Application No. 40 of 2024 which is before this Honorable court. - b. Each party bears their own costs.


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I so order.

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Right of appeal explained.

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OYUKO ANTHONY OJOK $\mathsf{S}$ JUDGE 8/04/2024