The Registered Trustees of Child Restoration Outreach v Departed Asians Property Custodian Board & 2 Others (Miscellaneous Application 46 of 2024) [2024] UGHC 418 (7 June 2024)

Full Case Text

# THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

# MISC. APPLICATION NO.46 OF 2024

#### (Arising from Land Suit No.18 of 2024)

## THE REGISTERED TRUSTEES OF CHILD

RESTORATION OUTREACH ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

- 1. DEPARTED ASIANS PROPERTY CUSTODIAN BOARD - 2. Y. Y GENERAL CONSTRUCTION LTD - 3. COMMISSIONER LAND REGISTRATION ::::::::::::::::::::::::::::::::::::

## BEFORE HON. JUSTICE LUBEGA FAROUQ

#### **RULING**

## 1. Introduction

2. This application was brought by way of chamber summons under section 98 of the Civil Procedure Act Cap 71 and Order 41 Rules 1 and 2 of the Civil Procedure Rules, SI 71-1 for orders that: temporary injunction be issued restraining the Respondents, their work men, agents and servants or persons acting under them from interfering, transferring, registering, wasting, selling, removal or disposition, distribution, damaging, alienating, construction, eviction of the Applicant's tenants and children under its care or any form of developments on the suit property comprised in Leasehold Register Volume 2431 Folio 25 Plot 15-17 Bishop Wasike Road, Mbale until the determination of Land Suit No.18 of 2024 and costs of the application.

### 3. Background

4. The Applicant claims to have acquired the suit property comprised in LRV 2431 Folio 25 Plot 15-17 Bishop Wasike Road on 9th November 1993 from previous proprietors who had repossessed the same from the 1st Respondent

and has since then enjoyed quiet possession of the property without any interference up until 15th January 2024 when it was summoned by the 3rd Respondent to a meeting subsequent to the 1st Respondent's sale of the property to the $2^{nd}$ Respondent.

- 5. In later events, the $2^{nd}$ Respondent through its lawyers in a letter dated $7^{th}$ March 2024 claimed ownership over the suit property and also demanded payment of rent from the existing tenants and thereafter was purportedly granted permission to renovate the suit property by the Mbale City Town Clerk in a letter dated 11th March 2024 and it is upon that background that the Applicant lodged Land Suit No.18 of 2024 from which this instant application arise. - 6. This application was supported by the affidavit of **NABITIRI PAUL** the Applicant's country director with full knowledge of matters surrounding this application and has been relied upon but briefly states that - a. The Applicant is the registered proprietor of the suit property currently with a subsisting lease of up to $2044$ ; - b. The Applicant acquired the suit property by way of purchase on 9th November 1993 at USD 90,000 from the former proprietors Mitha Tajdin Ibrahim and Mitha Sultan Ibrahim who had repossessed the same from the 1st Respondent on 3rd February 1993 and the property was later transferred to the Applicant who secured a title on 7th December 1995; - c. Following such acquisition, the Applicant started using the property without any interference from any one not even the Respondents or their agents but to the Applicant's dismay on 15th January 2024 it received a letter from the $3^{rd}$ Respondent inviting her to a meeting indicating that the $1st$ Respondent had sold the suit property to the $2nd$ Respondent who were desirous of processing a title having discovered another title on the file in the names of the Applicant; - d. Following the meeting which took place at the office of the 3rd Respondent at Mbale Zonal Office where Hajj Hirome on behalf of the 1st Respondent on 22nd January 2024 consented that they had sold the suit property to

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the $2^{nd}$ Respondent on the basis that it was never repossessed by the former owners which is not true;

- e. Bloom Advocates acting on behalf of the $2^{nd}$ Respondent in the accompaniment of police served the Applicant and her tenants a letter claiming that the $2^{nd}$ Respondent is the registered owner of the suit property and they demanded for payment of rent by the tenants from September 2023 and it is at this point that the Applicant discovered the certificate of title fraudulently issued on 6th December 2023 under instrument No. MBA-00010664 over the suit property in favor of the of the $2nd$ Respondent; - f. The Applicant has filed a prima facie case vide Land Suit No.18 of 2024 in this court which has a high likelihood of success; - g. There is a sufficient cause for the grant of the temporary injunction and maintain the status quo since the $2^{nd}$ Respondent is threatening the Applicant's quiet possession and her tenants demanding that they should start paying rent to the $2^{nd}$ Respondent or they should vacate the premises and this is also affecting the rehabilitation process of the vulnerable street children; - h. The balance of convenience favors the Applicant since she is currently in possession and use of the suit property as the lawful owner and currently the Applicant is rehabilitating the street children in the suit property in a bid to reintegrate them with their families; - i. If Respondents are not restrained, the Applicant shall have nothing to stop him from going ahead to sell off the suit land and property to the unsuspecting third parties or even mortgaging it off; - j. If this Application is not granted, the main suit will be rendered nugatory; - k. The Respondents will not be prejudiced by the grant of the application in any way since they are not in possession or use of the suit property currently.

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- 7. This application was opposed by the affidavit of **GEORGE WILLIAM BIZIBU** the Executive Secretary of the 1st Respondent with full knowledge of matters concerning this application and has been relied upon but briefly states that - a. The Applicant is not entitled to any of the orders being sort in this application; - b. The Applicant did not acquire any legal interest in the suit property since it's only the $1^{st}$ Respondent who is mandated to deal in the suit property. - c. The certificate of title in possession of the Applicant is therefore illegal and was acquired wrongly; - d. The Applicant's continued use and occupation of the suit property is illegal and the 1st Respondent maintains that it lawfully sold the suit land to the $2nd$ Respondent; - e. The certificate of title issued to the 2nd Respondent on the 6th December $2023$ is legal; - f. The Applicant does not have any case before this court which is likely to succeed since there are strong defences before this court opposing the claim; - g. The Applicant has not shown any sufficient cause in this application that warrants the grant of a temporary injunction by this court; - h. The 1st Respondent has never threatened the Applicant with eviction and the $2^{nd}$ Respondent is lawfully entitled to possession of the suit land; - i. The balance of convenience does not in any way favor the Applicant but rather the 2nd Respondent who lawfully acquired interest from the 1st Respondent. - 8. This application was also opposed by the affidavit of **BALAM ODONG** the $2^{nd}$ Respondent's business development manager with capacity to affirm on matters surrounding this application and has been relied upon but briefly states that - a. The suit property belongs to departed Asians who held a lease thereon running from 19th April 1966 to 1975 granted by Mbale Car Mart Ltd;

- b. By 1972 when the said Asians were expelled from Uganda, their lease was left with three years; - c. Later all properties of departed Asians were vested in the 1st Respondent by statute; - d. The 2nd Respondent did apply for purchase of the said property upon the same being advertised for sale by private treaty; - e. By the time of purchase the said building was abandoned and unoccupied; - f. After purchase it was realized that the Applicant had obtained an illegal lease from Mbale municipal council which title the 1st Respondent has ordered its cancellation; - g. The status quo is that the 2nd Respondent took legal possession of the property and even fenced it off with iron sheets; - h. A person holding an illegal title cannot be said to be in lawful possession and this being an equitable relief cannot be granted to such person; - i. The Applicant's suit is based on a title which is pending cancellation; - The leasehold title was obtained unscrupulously from an entity which had $i$ no mandate to deal with such property; - k. An equitable remedy cannot be issued to a party which unscrupulously grabs land belonging to Government; - 1. Bank of Uganda already compensated Mitha Sultan Ibrahmin of in respect of Plot $15/17$ ; - m. Tajdin Ibrahim Mitha never returned to Uganda; - n. The 2nd Respondent filed a counter claim for cancellation of the Applicants clouded title which suit has never been defended, weakening the Applicant's prima facie case; - o. The Applicant's main suit has no prospect of success; - p. The Applicant has not shown which irreparable loss it will suffer that cannot be compensated by damages; - q. There is no single street kid in that building but few garages operated outside who the Applicant calls tenants;

- r. The balance of convenience is in favor of dismissing this application to allow the $2nd$ Respondent undertake overhaul renovations on the suit property. - 9. This application was further opposed by the affidavit of **JOSEPH KIBANDE** Senior Registrar of Titles and Head of the Mbale Regional Office, with full knowledge of the facts in this application and has been relied upon but briefly states that - a. That the suit property has two leasehold certificates of title with different descriptions, different road names, different acreage, but same plot numbers; - b. Those certificates of title were created way back before the digitalization of the land information system currently being used by the 3rd Respondent whilst processing certificates of title; - c. The meetings held in the 3rd Respondent's office at Mbale Regional office attended by the Applicant, 1st and 2nd Respondents revealed that there are counterclaims on whether the property was repossessed or not. - This application was further more opposed by the affidavit of **NYOTE** 10. **ZACHARIA** that has been relied upon an briefly states that - a. He has group up a street kid where he stayed for over 20 years and he is currently the leader of street kids in Mbale; - b. There is no street kids staying or sleeping at plot $15/17$ Bishop Wasike Road Mbale; - c. None of the children showed in the photos attached to the affidavit in support is a street kid in Mbale; - d. The Applicant does not care for any street child in Mbale. - In rejoinder, NABITIRI PAUL the Applicant's country director with full 11. knowledge of matters surrounding this application and has been relied upon but briefly states that- - 12. The Applicant maintains that it is the registered proprietor of the suit property. ## 13. **Legal representation**

- Counsel Kamba Hassan appeared for the 2nd Respondent, Counsel 14. Komakech Godfrey appeared for the 1st Respondent while Counsel Luchiviya Faith appeared for the Applicant and the 3rd Respondent was un represented. - 15. **Submissions** - At the hearing of this application all counsel were given schedules to file 16. their respective written submissions. Counsel for the Applicant, the 1st Respondent and the $2^{nd}$ Respondent complied. Court has considered them in the determination of this application.

## 17. **Analysis of court**

## Order 41 rule. 1(a) &(b) of the Civil Procedure Rule SI.71-1 provides 18. that-

"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,* 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 or until *further orders.*"

In the case of Giella vs. Cassman Brown & Co Ltd [1973] 1 EA 358 Spry 19. VP at 360 held that-

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"The conditions for the grant of an interlocutory injunction are now i think, well settled in East Africa. First, applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience."

20. Prima facie case with the probability of success.

21. In Smt. Saroj Jasuja Vs M/S Signature Infracom Pvt. Ltd CS No 175/13 (2014) while citing with approval of the case of Gujart Electricity Board Gandhinagar Vs Maheshkumar and Co (1995) SCC545 where in was held that-

> "prima facie case means that the court should be satisfied there is a serious question to be tried at the hearing, and there is a probability of the plaintiff obtaining the relief at the conclusion of the trail on the basis of the material placed before court. The court, at the initial state *cannot insist upon a full proof case warranting an eventual decree".*

- 22. In the instant case, the Applicant averred at paragraphs 2 and 3 of the affidavit in support that it is the registered proprietor of the suit property currently with a subsisting lease valid up to 2044 having acquired the same by way of purchase on 9th November 1993 from the former proprietors who had repossessed it from the 1st Respondent on 3rd February 1993 and it was later transferred to the Applicant on 7th December 1995. - The Applicant relied upon **annexure A** to the affidavit in support which is 23. a copy of its certificate of title plus a copy of the said repossession certificate and transfer attached to the affidavit in support as **annexure B1 and B2** respectively. - 24. The Applicant further averred that following such acquisition, he started using the property without any interference from anyone until 15th January 2024 when it received a letter from the $3rd$ Respondent inviting it to a meeting indicating that the $1^{st}$ Respondent had sold the suit property to the $2^{nd}$ Respondent who were desirous of processing a title having discovered another title on the file in the names of the Applicant. - 25. In view of the above, it is a finding of this court that there is a prima facie case established since there is a serious question to be investigated by court

concerning the interests of $2^{nd}$ Respondent and the Applicant in the suit property.

- 26. Irreparable injury. - 27. In Lanco Hills Technology Park Private Limited Vs Mahaboob Alam Khan and others CRP NOS 4958 of 2007 (2012) it was held that-

"Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages". (Also See: **Nitco Ltd Vs Hope** Nyakairu (1992-1993 HCB 135).

- Under paragraph 3, 4 and 7 of the affidavit in support the Applicant 28. averred that it purchased the suit land in 1993 and started using the same until when the $2^{nd}$ Respondent in the accompaniment of police came and served the Applicant and her tenants a letter claiming that the 2nd Respondent was the registered owner of the suit property and they demanded for payment of rent by the tenants from September 2023. - The Applicant further averred under paragraph 9 of the affidavit in support 29. that the 2nd Respondent is threatening the Applicant's quiet possession and her tenants demanding that they should start paying rent to the $2^{nd}$ Respondent or they should vacate the premises and that it is also affecting the rehabilitation process of the vulnerable street children. - It is therefore the finding of this court that there is likelihood of the 30. Applicant suffering irreparable injury if this application is not granted since it has tenants and also rehabilitates street children therein. - 31. Balance of convenience. - 32. It is trite that where court is in doubt as to whether there is a prima facie case or that the applicant may suffer irreparable injury, it should determine the application on the balance of convenience. - In determining where the balance of convenience lies, court must weigh 33. who of the parties will suffer greater injury if the injunction was not granted.

The Supreme Court of India in Colgate Palmolive (India) Ltd Vs 34. Hindustan Lever Ltd AIR 1999 it was held-

> "The court must weigh one need against another and determine where the balance of convenience lies. The court once satisfied of these *matters will then consider whether the balance of convenience lies in* favour of granting injunction or not, that, whether justice would be best served by an order of injunction. The question of balance of *convenience will vary from case to case".*

35. In the instant case, the balance of convenience is in favour of the Applicant which has been in possession of the suit land or property since 1993 to date.

36. Status quo.

The Supreme court of India in Bhart Coking Colal Ltd Vs State of Bihar 37. and others 1988 AIR 127 status quo was defined according to the ordinary legal connotation to mean-

> *"the existing state of things at any given time." It is obvious that the* status quo cannot mean anything else except the existing state of affairs pending judgement" (See also Garden Cottage Foods Ltd Vs Milk Marketing Board [1984] AC 130

- In the view of the above, it is apparent that the main duty of court in 38. applications of this nature is only to preserve the existing situation pending the disposal of the substantive suit, and in exercising this duty, court does not determine the legal rights to property but merely preserves it in its actual condition until legal title or ownership can be established. - In the instant case the Applicant is claiming to be the lawful owner of the 39. suit property having purchased the same from allegedly the lawful owner who had repossessed the same from the 1st Respondent. That after purchase, it took possession of the same without interference until when the 2nd Respondent also claimed to have purchased the suit property from the 1st Respondent and wanted to renovate it and displace the Applicant's tenants hence Land Suit No. 18 of 2024.

- The Applicant also averred that it has been in possession of Leasehold 40. Register Volume 2431 Folio 25 Plot 15-17 Bishop Wasike Road since 1993 to date, has tenants and also rehabilitates street kids therein. Following that background, it is in the interest of justice that the status quo of the suit property is maintained until Land Suit No. 18 of 2024 is fully determined on its merit. If the status quo is not maintained, it will render hearing of the main suit a nugatory since the subject herein would have changed. - This application accordingly succeeds in the terms below-41. - a. A temporary injunction is hereby issued maintaining the status quo and restraining the Respondents, their work men, agents and servants or persons acting under them from interfering, transferring, registering, wasting, damaging, alienating, selling, removal or disposition, distribution, construction, eviction of the Applicant's tenants and children under its care or any form developments on the suit property comprised until the final determination of Land Suit No.18 of 2024;

b. Costs of this application are awarded to the Applicant

I so order

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Delivered via emails of the parties on 7th of June, 2024