Tayebwa v Bogere and Another (Civil Appeal No. 3 of 2009) [2010] UGCA 55 (3 February 2010)

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL NO. 3 OF 2009 TITUS TAYEBWA :::::::::::::::::::::::::::::::::::: **VERSUS**

#### FRED BOGERE 10

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#### ERIC MUKASA:::::::::::::::::::::::::::::::::::

(Appeal from the ruling and order of the High Court of Uganda Holden at Kampala before Hon. Lady Justice Anna Magezi given on the 3<sup>rd</sup> October, 2008 arising from Misc. Application No. 894 of 2007 at High Court at Kampala – arising out of HCS No. 469 of 2001).

## CORAM: HON. LADY JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ HON. MR. JUSTICE A. E. N. MPAGI-BAHIGEINE, JA HON. MR. JUSTICE S. B. K. KAVUMA, JA

#### Judgment of A. E. N. Mpagi-Bahigeine, JA 20

This is an appeal against the ruling and order of the High Court granting an interlocutory injunction vide Misc. Application No. 894 of 2007 in HCCS No. 469 of 2001, on 03-10-2008.

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The brief facts availed court are that on 09-08-2007 the respondent filed Miscellaneous Application No. 894 of 2007, seeking a temporary injunction to restrain the applicant and or his agents/servants/employees from interfering/trespassing on the respondent's land, at 'Busiro Block 383 for

3812', land at Kitende. The application was heard inter partes and allowed 30

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5 on 30-10-2008. It was ordered that the applicant should cease interference with the suit land, in parliculal construction of a house.

The rnain suit HCCS No. 595/2007 is pending disposal. Our attention was also drawn to a ruling order dated I 9-03-09, in Misc. Application No. 960 of

l0 2008 (A. Kiiza. J), declining to disrniss the rrain suit fbr want of prosecution, on the ground that the court was largely responsible lbr such delay.

Mrs. K. Murangira appeared for the appellant while Mr. Kiryowa Joseph represented the respondent.

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At the joint conferencing the following issues were agreed, namely:

- l. Whether the learned trial .iudge erred in larv and fact rvhen she grantcd the application for a temporary injunction. - 2. Whether the learned Judge erred in larv and fact when she failed

l0 to apply the law to dismiss the main suit for want of prosecution.

3. Whether the appellant is entitled to the prayers in the appeal.

Mrs. Murangira treated grounds I and 2 together and ground 3 separately

- 5 The gist of her arguments under grounds I and 2 was that the learned judge f-ailed to consider ,he aflldavits belore her and to consider the issue of ownership of the land since the Title Deed attached reflected a difierent person and most importantly that she failed to direct herself concerning the legal principles governing injunctions finally and she never gave reasons for - l0 her decision. Ms. Murangira thus prayed court to allow this appeal and set aside the order granting the iniunction.

Mr. Joseph Kiryowa agreed with the leamed judge's order. He submitted that the learned judge properly scrutinized the record and evaluated the l5 evidence. The respondent was claiming ownership of the suit land over which the appellant was trespassing. Under the circumstances such trespass/activ it ies had to cease rvhile the status quo was being maintained till final disposal ofthe dispute.

lo The learned Judge ruled:

since conslruction of a house on a suit land could wasle, damage or cause alienation oJ the sttit land by inter/ering with the status quo because the applicant could prefer other developments. Ll'hereas I appreciate the rights I however, find that the prerequisites.for an injunction prevail of a customat'y tenant those rights can only be confirmed and sqfe guarded after the hearing of the main suit.......... For now, however. the respondent should cease to interfere x'ith the suit lancl, in particttlar the construction ol' the respondent.from the suit land. " the hou.se, since the applicant has deponetl that he has no intention to expel

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It is apparent from the fbregoing excerpt that the learned Judge was alive to the relevant principles governing the grant of injunctions. I should perhaps power to grant an injunction in protection o1'that right. A party is entitled to 15 apply fbr an injunction as soon as his legal right is invaded, the very first principle being that an injunction cannot be granted fbr a wrong for which damages can adequately atone for the wrong or are the proper rernedy. The add that where there is a legal right either at law or in equity, the court has

learned judge was alive to this

Order 4l rule (l) (a) of the Civil Procedure Rules (S.l.7l) provides as 20 tbllows:

"Where in any suit it is proved by affidavit or otheruise -

(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 sold in execution of a decree; ....

(b) The court m:ry be by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit properh' or until further ordcrs".

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It is clear from the foregoing that the purpose of granting a temporary injunction is to maintain the status quo. See Noormohaed Janmohamed v. Kassamali Virji Madhavi, Civil Appeal No. 42 of I951 where Newham Worley VP, said this:

l5 "l have always understood the whole purpose ofan injunction is that nratters ought to be reserver,' in status quo until the queslion to be investigated in the suit can.finally be disposed off'.

Also see Godfrey Sekitoleko & 4 C)thers v. Seezi Peter Mutabazi & two Others (Civil Appeal No.65 of 2004), where the respondents were ordered 20 to cease constn:ction of a building as it would alter the status quo.

The respondents are claming ownership of the suit property. They assert that the appellant was carrying on illegal developments on the said land, and that the property is in danger of being wasted, darraged or alienated by the

appellant because of the appellant's continued construction of a house on it and that therefore if the appellant is not restrained the rnain suit would be rendered nugatory. On the other hand, the appellant averred in paragraph <sup>5</sup> and 6 of his affldavit that the application did not have any chances of success and should be dismissed. The respondent did not have any claim to In the land. Indeed this is the subject olthe pending HC civil suit

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The fact that the leamed trial Judge stated in her ruling in Misc. Application No. 894 of 2007 that the respondents are tl.re registered proprietors of the suit land would not prejudice the outcome of Civil Suit No. 595 of, 2007 as l5 alleged. She uas merely stating a lact apparent on the record befbre her. lt

was not her finding. Nor was it her duty at the time to make such a finding without evidence.

I would therefore disallow gt'ounds I and <sup>2</sup>

l0 On ground 3, learned counsel Mrs. Kasande Murangira sought to introduce the nrling in Misc. Application No. 960/2008, where'the couft disrnissed the application for striking out the rrain suit for want of prosecution. With respect, this has no relevance to this appeal since the Judge blamed such delay on the court itsell.

- It is well settled that once pleadings in a case are complete, if the clairnant tails to seek a hear,ng date, the other party ciin apply for it and serve the notice on the opposite pany. However, the melancholy case back log is the cause of the inordinate delays. Mrs. Murangira did not show that they had tried to seek a date to which the respondent did not agree. It is not good - l0 practice simply to wait to apply for a dismissal of the suit. This does not solve disputes. They will continue to simmer with undesirable end results.

In those circumstances it is enough for t.ue to say that the appeal should, in the circumstances fail, witl-r costs.

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Dated at Kam ala this 3 r\l Dav of 2009.

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on. N pagi-B lge e . IT]STICBO [. API'IiAL

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### THE REPUBLIC OF UGANDA

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

#### CIVIL APPEAL NO. 3 OF 2009

TITUS TAYEBWA::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### **FRED BOGERE**

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ERIC MUKASA:::::::::::::::::::::::::::::::::::

[appeal from the ruling and order of the High Court of Uganda Holden at Kampala before Hon. Lady Justice Anna Magezi given on the 3<sup>rd</sup> October, 2008 arising from Misc. Application No.894 of 2007 at High Court Kampala – arising out of HCS No.469 of 2001]

**CORAM:** HON. LADY JUSTICEA L. E. M. MUKASA-KIKONYOGO, DCJ

HON. MR. JUSTICE A. E. N. MPAGI-BAHIGEINE, JA V

HON. MR. JUSTICE S. B. K. KAVUMA, JA

#### JUDGEMENT OF S. B. K. KAVUMA, JA

I have read, in draft, the judgment of A. E. N. Mpagi-Bahigeine, JA.

| I concur. | | | |-----------------------|---------|------| | Dated at Kampala this | day of. | 2010 | | | | | | | | | | <b>S. B. K KAYUMA</b> | | | | JUSTICE OF APPEAL | | | | | | |

### THE REPUBLIC OF UGANDA

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

#### HON. LADY JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ CORAM: HON. LADY JUSTICE A. E. N. MPAGI-BAHIGEINE, JA HON. MR. JUSTICE S. B. K. KAVUMA, JA

### **CIVIL APPEAL NO. 3 OF 2009**

TITUS TAYEBWA....................................

#### **VERSUS**

| FRED BOGERE | | |-------------------------------------------|--| | <table> ERICK MUKASA RESPONDENTS</table> | |

#### (Appeal from the ruling and order of the High Court of Uganda Holden at Kampala before Hon. Lady Justice Anna Magezi given on the 3<sup>rd</sup> October, 2008 arising from Misc. Application No. 894 of 2007 at High Court at Kampala – arising out of HCS No. $20$ 469 of 2001).

## JUDGMENT OF HON. LADY JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ

Upon perusal of the judgment in draft prepared by A. E. N. Mpagi-Bahigeine, JA I agree with her that the appeal must fail.

Since S. B. K. Kavuma, JA also concurs, this appeal is dismissed with costs.

Dated at Kampala this. $\mathbb{R}$ $\mathbb{R}$ $\mathbb{R}$ $\mathbb{R}$ $\mathbb{R}$ $\mathbb{R}$ $\mathbb{R}$ $\mathbb{R}$ $\mathbb{R}$ $\mathbb{R}$ $\mathbb{R}$ $\mathbb{R}$ $\mathbb{R}$ $\mathbb{R}$ $\mathbb{R}$ $\mathbb{R}$ $\mathbb{R}$ $\mathbb{R}$ $\mathbb{R}$ $\mathbb{R}$ $\mathbb{R}$ $\mathbb{R}$ 30

L. E. M. Mukasa-Kikonyogo DEPUTY CHIEF JUSTICE

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