State Wide Insurance Company Limited v Kisozi Complex (U) Limited and Others (MISC.APP NO.016 OF 2025) [2025] UGHC 311 (20 May 2025)

Full Case Text

## THE REPUBLIC OF UGANDA

## IN THE HIGHCOURT OF UGANDA AT KAMPALA

## (LAND DIVISION)

## MISC. APP NO.016 OF 2025

### (ARISING OUT OF CIVIL SUIT NO.590 OF 2017)

STATE WIDE INSURANCE COMPANY LIMITED:::::::::::::::::::::::::::::::::::: $10$

### **VERSUS**

KISOZI COMPLEX(U) LIMITED:::::::::::::::::::::::::::::::::::: COMMISSIONER LAND REGISTRATION:::::::::::::2ND RESPONDENT FRED MUTIMBA:::::::::::::::::::::::::::::::::::: NAKALEMBE LYDIA:::::::::::::::::::::::::::::::::::: MUYIGWA SAMUEL:::::::::::::::::::::::::::::::::::: KASSIM KIWANUKA::::::::::::::::::::::::::::::::::: **MUGENYI FRANCIS:::::::::::::::::::::::::::::::::::: MARTIN KRESTSCHMOR::::::::::::::::::::::::::::::::::::** HARRIET KRESTSCHMOR:::::::::::::::::::::::::::::::::::: BATEGANYA ANCILLA NSEKA:::::::::::::::::::::::::10th RESPONDENT BEFORE HON LADY JUSTICE ELIZABETH JANE ALIVIDZA **RULING**

### REPRESENTATION

25 The Applicant was represented by Messr Signum Advocates.

The $1^{st}$ and $6^{th}$ Respondent were represented by M/s Lubega Babu & Co. Advocates. The 7th Respondent was represented by S. K. Kiiza & Co. advocates.

The 2nd, 3rd, 4th, 5th, 8th 9th and 10th Respondents were unrepresented.

## **INTRODUCTION**

The Applicant brought this Application under Section 38 of the Judicature Act 30 cap 16, Section 98 of the civil procedure Act Cap 282 and Order 41 Rule 2 of the *Civil Procedure Rules for:*

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- a) A temporary injunction doth issue restraining the respondents, their officials, agents or any persons claiming title thereunder from sale, mortgage, transfer, alienation, disposition, demolition or any other lorm of interference with the property comprised in land at Kyeitaba Kyadondo Block 246 Plots 2159,2152,2158,2096,2155,248 and all other properties subdivided from land formerly comprised in Kyeitaba Kyadondo Block 246 plot 247. - 40 b) The costs of this Application.

The grounds supporting this Application are contained in the notice of motion and the Affidavit in support depone d by Namakula Ndagire Racheal the Applicant's legal officer briefly stating that;

- 1. The Applicant has been the registered proprietor of land comprised in Kyeitaba Kyadondo Block 246 plot 247 (suit property) since 13 November 1986 when it was registered under instrument No. KLA 121287. - 2. The said land was purchased by the Applicant in 1986 and entries of its particulars on the register were made in good faith and without any frauduient conduct. - 3. Around 20 1 5, the l"t Respondent began to interfere with the quiet possession of the Appiicant by procuring registration as proprietor on the suit property and subdividing the suit property. - 4. Around 2016, the Applicant lodged several caveats on the suit property and the subdivided plots arising out ofthe suit property. - 5. The Applicant went ahead and instituted civil suit No.590 of 2077 in which it prayed for cancellation of the Respondent's Certificate of title in respect of the suit property and a permanent order of injunction preventing the defendant andf ot their agents from interfering with its quiet possession. - 6. The Applicant's case has a high likelihood of success and raises triable ISSLlCS. - 7. The 1st Re spondent has since applied lor the removal of the Applicant's caveat on the properties that were subdivided on the suit land.

- 8. The Appiicant is likely to suffer irreparable loss and injury if the caveats lodged by the Applicant are removed as it would expose them to further alienation and disposal by the Respondents. - 9' unless this Application is granted there is no amount of damages that would be able to atone for the loss and injury that would be suffered by the Applicant. - 10. The balance of convenience is in the Applicant's favor to the extent that the Respondents would not suffer any injustice if the Application is - granted.

11. It is in the interest of justice that this Application is granted.

## BACKGROUND

The Applicant l-rled civil suit No.59o ol 2o7T against the Respondents seeking 75 inter alia for the cancellation of the Respondents' Certil-rcate of title in respect of the suit property and a permanent order of injunction

The Applicant contends that in 1986, it purchased land comprised in in Kyeitaba Kyadondo Block 246 prot 247 measuring about 3.9g acres from the then registered proprietor the Late Yuda Kiddu for a valuable consideration and free 80 from encumbrances.

That on the 13ft November 1986, the suit property was transferred and registered in the Applicant's names under Instrument No. KLA 7212g7. That the Applicant has always been in actual and constructive possession of the suit property.

85 The Applicant contends that in 2015, the 1"r Respondent through its agent Kassim Kiwanuka; the 6th Respondent claimed to have bought the suit property from the late Yudda Kiddu in 1985. That they colluded with the purported administrators of the estate of the late Yudda Kiddu and fraudulently transferred title to the suit property into the names of the 1st Respondent by illegally procuring a second duplicate certificate of title in respect of the suit property. 90

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That the lst Respondent proceeded to subdivide the suit property into different plots and transfer some of the subdivided plots to third parties.

That the Applicant lodged caveats on the properties that were subdivided in the suit property to protect its interest, the caveats included;

- 95 i. propertSr comprised in Kyeitaba Kyadondo Block 246 plot 2159 under instrument No. KCCA 00043875, - ii. property comprised in Kyeitaba Kyadondo Block 246 plot 2152 under instrument No. KCCA 00026220, - iii. property comprised in Kyeitaba Kyadondo Block 246 plot 2158 under instrument No. KCCA 0002622|.

- iv. property comprised in Kyeitaba Kyadondo Block 246 plot 2096 under instrument No. KCCA 00026224 - v. property comprised in Kyeitaba Kyadondo Block 246 plot 2155 under instrument No. KCCA 00026228 - 105 vi. property comprised in Kyeitaba Kyadondo Block 246 plot 2149 under instrument No. KCCA 00026227

The Applicant avers that the 1"t Respondent is in the process of removing the caveats, that on the 20th November 2024 the Applicant was served with a notice of removal of caveats from the commissioner land registration dated 23 October

2024 in respect of caveats lodged on property comprised in Kyeitaba Kyadondo Block 246 plot 2 159 under instrument No. KCCA 00043875. 110

suffer any injustice if the Application is granted. That if the caveats are removed, this will deprive the Applicant of any protection and the Respondents will be at liberty to dispose if the plots causing the irreparable damage and loss to the Applicant. That unless this Application is granted, there is no amount of damages that would be able to atone for the loss and injury that would be suffe red by the Applicant and the balance of convenience is in Applicant's favor to the extent that the Respondents would not

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1,20 The l"t Respondent filed an affidavit in reply deponed by Lutalo Jaffer Kiwanuka the company director stating that it shall raise a preliminary objection to the effect that the application against it is frivolous, a non-starter, is devoid of merit and should be dismissed with costs. That the lst Respondent is the owner of former plot 247 Block 246 since the 199Os and before sub-division, having lawfully obtained it and later sold several plots to 3rd parties before the suit was filed and who are not parties to the suit. 125

That plot 2159 was sold on 21"1 November,2075 to Mary Kasirye who is in physical possession thereof with permanent structures and the same is not property of the 1st Respondent or any of the Respondents in court. That the l"t Respondent also obtained the application to withdraw the caveats from Land Office and the same was fi1ed by one Batalagaine Henry and not the lst Respondent as a resuit, the application and its averments against it are false and have no factual basis.

135 The 6e respondent filed an affidavit in reply deponed by Yusuf Kiwanuka Manda his lawful attorney. He contended that the 6tt Respondent has not applied to withdraw any caveats from the suit lands and particularly plot 2tS9 block 247 and that the application be dismissed with costs. That the Applicant did not do due diligence in establishing who applied for removal of the caveats and they brought the application in error, without proper evidence and it is thus devoid of merit.

- 1,40 The 6ff Respondent also contends that the l"t Respondent was the owner of former plot 247 Block 246 since the 1990s and before sub-division, having lawfully obtained it and later sold several plots to 3.d parties before the suit was filed and who are not parties to the suit. That he sold plot 2 1 59 on 2 l st November, 2015 to Mary Kasirye pursuant to a board resolution dated 12m October, 2015 - 1,45 and she is in physical possession thereof with permanent structures and the same is not property of the 1st Respondent or any of the Respondents in court. That he has also been made aware of the application to withdraw the caveats

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from Land Office and the same was filed by one Batalagaine Henry and not the 1"t Respondent.

- 150 The 7e respondent in his affidavit in reply contends that he does not have any interest in the suit land and thus he was unnecessarily made party to this Application and that the orders arising from this Application may be given in vain which is against the known rules of Court. That he is a bonafide purchaser of land comprised in and known as Kyadondo Block 246 Plots 2296 which is not - 155 a subject of this Application and head suit.

That it would therefore be an exercise in futility to conduct a hearing in respect of land which is not mentioned in the Appiication. That a temporary injunction cannot issue against a registered proprietor. That he is the registered proprietor and in possession and use ofPlot 2296 havingpurchased the same from a person

160 who is not a party to the suit. That the effect of which is that there is no prima facie case against him. That being a real estate businessman he has already sold a substantial part of the land he purchased which means that this Appiication may not save anything since an order of temporary injunction cannot stop what has already taken place.

# 16s ISSUES

The Applicant raised the following issues;

- a) Whether the Applicant should be granted a temporary injunction? - b) What remedies are available for the parties?

### SUBMISSIONS

1,70 This court issued directives for parties to {ile their written submissions only the Applicant, lst, 6th and 7e Respondents filed written submissions that have I considered in determining this application.

6 fr 6 ## 175 DETERilIINATION OF THE COT]RT,

The law on granting an Order of temporary injunction is set out in section 64(c) of the Ciuil Procedure Act which provides as follows;

"In order to preuent the ends of justice from betng defeated, the court mag, if it is so prescribed-

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- b - c. grant a temporory injunction and in case of disobedience commit the person guiltg of it to pison and order that his or her property is attached and sold.,

185 Under Section 38 of the Judicature Act Cap 16, this court has the power to grant orders of a temporary injunction in all cases in which it appears to it to be just and convenient to do so to restrain any person from doing acts.

In the case of Sarqat us Patel (1949) 16 EACA 63 court defined an injunction as a prohibitive, equitable remedy issued or granted by a court at suit of a petitioner directed at a Respondent forbidding the Respondent from doing some act which

190 the Respondent is threatening or attempting to commit or restraining a Respondent in continuance thereof, such act being unjust, inequitable or injurious to the petitioner and not such as can be addressed by action at law.

The general considerations for the grant of a temporary injunction onder Order 41 Rule (1)of the Ciuil Procedure Rules that states;

- 195 1 . Where in ang suit it is proued by alfidauit or othenaise - a) that anA propertA in dispute in a suit is in danger of being uasted, damaged, or alienoted bg ang partg to the suit, or urongfullg sold in execution of a decree; or - b) that the defendant threatens or intends to remoue or dispose of his or her propertg tuith a uieu-t to defraud his or her creditors,

the court may by order grant a temporary injunction to restrain such act, or moke such other order for tLrc purpose of staging and preuenting the u.tasting, damaging, alienation, sale, remoual or disposition of the propertA as the court thinks fit until the disposal of the suit or until further orders.

2. (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, uhether compensation is claimed in the suit or not, the plaintiff maA, at ang time afier the commencement of the suit, and either before or afier judgment, apply to the court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or ang injury of a like kind aising out of the same contract or relating to the some propertA or right.

275 It is trite law that the grant of temporary injunction is at the discretion of court. The conditions that have to be fulfilled before court exercises its discretion to grant an interlocutory injunction have been well laid out in the case of GApco Usanda Ltd v Kaweesa & Anor (Ma No. 259 of 2013) [20131 UGHCLD 47 (28 Mav 2013) as the following: -

- 1. The Applicont has shown o prima facie case u.tith a probabilitg o'f success. - 2. The likelihood of the applicants suffeing ineparable damage which would not be adequately compensated by award of damoges. - 3. Where in doubt in respect of the aboue 2 considerations, then the application utill be decided on a balance of conuenience.

The purpose of granting a temporary injunction is to preserve the status quo until the question to be investigated in the suit can finally be disposed. status quo was defined to be " the actual state of affairs on the suit premises prior to the filing of the suif' tn Viola Aiok and Anor -V-And reu.t Oiok and Anor Misc App No.179 of2O07 (arisinq from CS 63 of 2007).

In handling temporary injunctions, the court should also bear in mind that the court should not attempt to resolve issues related to the main suit: see: prof,

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## 230 Peter Anuanq Nuonq'O & Others Vs The Attorneu General of Kenua & Others; East Afican Court of Justice Case Ref. No. 1 of2006

I sha1l go ahead to consider the diffcrcnt grounds sct out abovc

- i) The Applicant has shou.n a pima facie case with a probabilitg of success. - 235 The Applicant in this case is required to show that there is a prima facie case with a probability of success of the pending suit. This court must therefore be satisfied that the claim is not frivoious or vexatious and that there is a serious question to be tried (see American Cunamide us. Ethicon t19751 ALLER504) Whereas the Applicant has to satisfy court that there is merit in the case, it does - 240 not mean that one should succeed.

The Applicant under paragraph 12 stated that it instituted civil suit No. 590 of 2017 rn which it seeks for cancellation of the Respondents' certificate of title in respect of the suit property and a permanent order for injunction preventing the respondents.

- 245 Under paragraph 7 of the amended plaint, the Applicant's claim against the respondents is for the cancellation of the certificates of title in respect of Kyadondo Block 246 Plots 2092, 2096, 2748, 2149, 2150, 2151, 2152, 2153, 2154,2155,2156, 215,2158,2159 and 2160 formerly known as Block 246, Plot 247 land at Kyeitabya and the reinstatement of the certificate of title for land comprised in Kyadondo Block 246 P\ot 247 as the proprietor. 2s0 - The Applicant also claims to have purchased the suit property and that the lst Respondent unlawfully caused the removal and withdrawal of the white page of the certificate of the suit land and transferred the same into the 3rd, 4th, sth Respondents. The merging issues from the main suit are; - 255

1. Whether tLre suit and counterclaims are time baned?

2. Wlether the 7st,2nd and 6th defendonts committed fraudulent acts on the acquisition of the suit land?

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- 3. Whether the plaintiff, 7s1. 6th and 2"d Defend.ants Vh,Bth Eh and 10th Dekndants ammitted fraudulent acts in the acquisition of tLe suit land. and subdiui"sion of the suit land? - 4. whether the 3'd' 4th and Sth defendants haue legal equitable interest in the suit land - 5. Whettrer the Vh, 8th 9th and 10tn dekndants are bonafi.de purchasers for ualue uithout notice? - 265 6. What remedies are auailable to all parties?

The above issues as raised in court show that there are triable issues in the main suit and hence a prima facie case has been made out.

- ii) Whether the Applicant has proved that it uitl suffer irreparable damages, - 270 Under paragraphs 10 and 11 of the affidavit in support states that the l"t Respondent is in the process of removing the caveats. That on the 20ft November the Applicant was served with a notice of removal of caveats from the commissioner land registration dated 23 october 2024 tn respect of caveats lodged on property comprised in Kyeitaba Kyadondo Block 246 plot 2 159 under instrument No. KCCA 00043875. - 275 The Applicant attached a copy of notice of removal of caveat dated 23'd october 2024 wherern it is stated that the 1"t Respondent (the registered proprietor) applied for the removal of the Applicant's caveat and that the caveat would be removed after the expiration of 6o days if the Applicant has not obtained an order from the high court. - 280 The 1"t and 6e respondents in their affidavits in reply denied having applied for the removal of the caveat. The 7e respondent contended that he is a bonafide purchaser of land comprised in and known as Kyadondo Block 246 plots 2296 which is not a subject of this Application and head suit.

\n Kiuimba Kaggua uersus Hajji Abdu Nasser Katende. 11985) HCB 43, Court observed that irreparable injury does not mean that there must not be physical 285

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.

290 The lst respondent is the current registered proprietor of the suit property in which the Applicant claims an interest in. It is my conclusion that the removal of the caveat on the suit property would grant ley way to the Respondents to deal in the suit property during the pendency of this suit. The 7ft Respondent,s ciaim that he is a bonafide purchaser can only be dealt with in the main suit.

295 I am aware that the main suit is ready for hearing and trial dates have been set. Incase the Respondents deai with the property, the Applicant shall suffer. Therefore, the Applicant has demonstrated that it will suffer irreparable damage.

iii) Who does the balance of conuenience fauour.

300 It is trite law that if the Court is in doubt on any of the above two principles, it will decide the application on the balance of convenience. The term 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 favorable to him/her and the Court would most likely be inclined to grant to him/her the application for a temporary injunction. See GAPCO Uqanda Ltd u Katueesa & Anor lMa No.259 of2013) 120131 UGHCLD 47 (28 Mau 2013)

- The Applicant submitted that the suit property is currently registcred in the Respondents' names and that the injunction is intended to prevent further alienation and disposal of the same. It is also my conclusion that the baiance of convince lies with the Applicant who claims an interest in the suit property registered in the Respondents' names. 305 - 310 The temporary injunction is granted as praycd on the following conditions. - 1. Temporary injunction is for six months only subject to renewal from date of delivery of ruling. - 2. Main trial to be heard in an expeditious manner.

- 3. Each party bears their own costs. - So ordered 315

tha

Elizabeth Jane Alividza

Judge

$20^{\rm th}$ May $2025$ 320

20th May 2025 $lzd$ inc

Ruling delivered on ECCMIS 325

## Elizabeth Jane Alividza

${\bf Judge}$