The Registered Trustees of Shree Sanatan Dharma Mandai v Kampala Capital City Authority (Miscellaneous Application 115 of 2024) [2024] UGHCCD 80 (17 May 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION) MISCELLANEOUS APPLICATION NO. 0115 OF 2024 (ARISING FROM MISC. CAUSE NO. 0025 OF 2024)**

# **THE REGISTERED TRUSTEES OF SHREE SANATAN DHARMA MANDAL:::::::::::::::::::::::::::::: APPLICANT**

## **VERSUS**

### **KAMPALA CAPITAL CITY AUTHORITY:::::::::::::::::::::::::RESPONDENT**

#### *BEFORE: HON. JUSTICE SSEKAANA MUSA*

#### **RULING**

This is an application for a temporary injunction against the respondent seeking to restrain the respondent or agents/officers and any other persons from enforcement and/ or implementing in any way of the respondent's resolution passed on the 18th of December, 2023 under Minute KCCA 100/25/23 in the respondent Special meeting by which among others purported to cancel and or rescind the applicant's estate and interest in the property comprised in *FRV 1290 Folio 4 Plot 110 William Street* (the property), including the resolutions to stopping the applicant from redeveloping the property, and or collection of rent from the applicant's tenants over the property, pending the hearing and determination of the Judicial Review Application.

The application for temporary injunction was supported by an affidavit sworn by Mr. Raju Vaya-the applicant's Chairperson.

1. The applicant is the current registered proprietor of the property comprised in *FRV 1290 Folio 4 Plot 110 William Street* and has been an owner thereof in freehold since 2012 when the pre-existing estate and interest converted from leasehold into freehold tenure. Prior to 2012, the applicant owned the property as a lease since 1st November 1957.

- 2. The applicant is also the proprietor and founder of what is now known as Bat Valley Primary School (Formerly Shadaben Rambhai Zarerbhai Patel Shree Sanatan Dharma Mandal School) which school is housed on part of the property. - 3. The applicant's proprietorship and management over the school was settled and confirmed in HCCS No. 672 of 2000 [The Registered Trustees of Shree Sanatan Dharma Mandal v Kampala City Council] pursuant to a court Judgment issued and or sealed on the 15th of January, 2002. - 4. That the School is otherwise a Government Grant Aided School but owned, founded by and seated on part of the applicant's land; and is governed by the School Management Committee comprising of 9 members of which 5 are appointed by the applicant while the other 4 are appointed by the respondent, 2 of whom are elected by the respondent to represent the interests of the parents. - 5. That the major structural developments housing the school were constructed in the 1960's and have since become dilapidated and are subject of several public health condemnation notices. - 6. That the applicant therefore introduced a re-development proposal for the construction of new school structures as well as the further utilization of the rest of the property for the establishment of a Secondary school and teaching Hospital, all within the covenanted/or restricted user rights. The Applicant's proposed redevelopment of the property was duly approved by the School Management Committee and further by the Respondent's Central Division Council.

- 7. That on 18th December 2023, the respondent at its Special meeting passed a resolution under Minute KCCA 100/25/23 (Resolution) under which, among others; - (i) It directed Kampala District Land Board to cancel and rescind the applicant's freehold estate and interest in the property; - (ii) It halted the proposed re-development of the school and the property. - (iii) Stopped and/or reversed the payment of all the rent being collected from the property by the applicant and directed that the said rent be paid to the respondent. - 8. The applicant is challenging the respondent's resolution for being ultra vires, unjust, illegal and irrational.

While the respondent filed an affidavit in reply sworn by DAN Muhumuza– The Clerk to the Authority-KCCA;

- 1. The respondent on 18th December 2023, at a special meeting made resolutions by largely adopting recommendations by the Auditor General and Parliamentary select committees to among others; - 2. To maintain Bat Valley Primary School as a Universal Primary Education School and in its current location. - 3. That the Council also adopted and implemented the Auditor General's recommendation that Kampala District Land Board rescinds/cancels the Freehold title that was illegally and irregularly granted to the Registered Trustees of Shree Sanatan Dharma Mandal in respect of Bat Valley Primary School. - 4. The Council further resolved that KCCA carries out a supervisory role on behalf of Government towards Bat Valley Primary School since it is a Government aided school.

- 5. The Council further Vetoed with immediate effect, the resolutions of the Central Division Urban Council pursuant to Section 34(1) of the Kampala Capital City Act and halted the process of approving any plans by the applicant. - 6. That KCCA Management and the Legal Department de directed to pursue the legal processes to ensure that this UPE school is returned to KCCA, including setting aside the Kampala District Land Board Order, litigation and applying to set aside the consent Judgment among others to ensure that the fraudulent process is overturned. - 7. That the Council resolved to preserve Bat Valley Primary School due to its historical significance to the city and its contribution towards educating the poor. In the same vein that the standing Committees of Education and Social Services together with that of Physical Planning should expedite the Bill for Ordinance on the preservation of Historical sites and monuments. - 8. That the Council adopts and implements the recommendations in a report by the select Committee of Parliament inquiring into the irregular take over of land belonging to public schools in KCCA in 2015. - 9. That the school had been taken over by the Government in 1964 by an Act of Parliament and after the expulsion of the Asians from Uganda in 1972 it remained under the Government of Uganda and was never declared as an expropriated property. - 10. That the school was repossessed by the Registered Trustees of Shree Sanatan Dharma Mandal in 1991 and the user of the property was maintained as a School. - 11. That the resolution of council halting plans by the applicant to put buildings on the school land was informed by the applicant's intention of putting up commercial structures on the land as per minute 106.5 of the Council meeting. The said intended commercial structures are

contrary to the conditions of grant of freehold to the applicant, which require that the user is restricted to a school site.

- 12. That the applicants have never challenged the resolutions of Parliament or the Auditor General and the same have remained valid resolutions to be implemented by the Council. - 13. That the respondent through the Council of KCCA has powers to veto decisions of the Division Urban Councils where such decisions are inconsistent or contravene the law.

The applicant was represented by *Kassim Muwonge & David Mukiibi Ssemakula* while the respondent was represented by *Jackline Atugonza*

The parties filed their respective submissions which I have considered in this ruling.

# *Whether the court should issue a temporary injunction in this matter?*

The applicant's counsel submitted that the applicant is challenging the resolutions made by the council for illegality, irrationality and procedural impropriety. The resolutions of council took immediate effect and KCCA has taken over the management of the property comprised in *FRV 1290 Folio 4 Plot 110 William Street.*

The applicant further contended that there is a prima facie case and or that the main cause raises serious questions of law or triable issues. It was counsel's submission that there is an imminent threat by the Lord Mayor to halt any rental payments to the applicant pursuant to the impugned resolutions.

The respondent counsel submitted that there is no prima facie case since the applicant's case is premised on challenging the powers of the Council to veto a decision of the division urban council. This power is premised in section 34 of KCCA Act especially where the decision is inconsistent with or contravenes the Constitution or any other law.

It was further submitted that the temporary injunction sought would have the effect of suspending the respondent's powers to veto a decision of the its Urban Council and this would in effect tantamount to suspending the law. The respondent contended that there is no prima facie case and that there is no imminent threat to the applicant and the recommendations of council are not new matters and the respondent has not taken any steps to implement the same resolutions.

## *Analysis*

The jurisdictional and procedural principles governing interim injunctions or temporary injunctions must be sufficiently balanced and flexible to address the objectives of these remedies. The court's discretionary powers should not be curtailed with hurried exercise of power with a view of changing the status quo to defeat the grant of appropriate remedies.

If the court believes that there is a serious issue to be tried, it will prospectively consider the parties' respective positions according to whether an injunction is granted or refused. In doing so, the court will gauge the hardship which would be caused to the applicant if he is refused relief and balance it against the hardship which would be caused to the respondent if the injunction is granted. If neither party would be adequately compensated, the court would ascertain where the balance of justice lies.

The jurisdiction to grant a temporary injunction is an exercise of discretion and the discretionary powers are to be exercised judiciously as was noted in the case of *Yahaya Kariisa vs Attorney General & Another, S. C. C. A. No.7 of 1994 [1997] HCB 29.*

It should be noted that where there is a legal right either at law or in equity, the court has power to grant an injunction in protection of that right. Further to note, a party is entitled to apply for an injunction as soon as her legal right is invaded. *See Titus Tayebwa v Fred Bogere and Eric Mukasa Civil Appeal No.3 of 2009*.

In applications for a temporary injunction, the Applicant is required to show that there must be a prima facie case with a probability of success of the pending suit. The Court must be satisfied that the claim is not frivolous or vexatious and that there is a serious question to be tried. *(See American Cyanamid Co v Ethicon Ltd [1975] ALL ER 504).*

A *prima facie* case with a probability of success is no more than that the Court must be satisfied that the claim is not frivolous or vexatious, in other words, that there is a serious question to be tried as was noted in *Victor Construction Works Ltd v Uganda National Roads Authority HCMA NO. 601of 2010.*

The applicant is challenging the resolutions made by the respondent Council to take over the management of the Bat Valley Primary School pursuant to the recommendations of Parliament Select Committee and also the Auditor General's report. This court has a duty to investigate and interrogate the allegations made by the applicant and this court cannot assume facts which have not happened and this could be speculative without cogent evidence to support the grant of a temporary injunction.

There are serious issues to be interrogated in the main application (Cause) and this court is satisfied that the case for the applicant is not frivolous or vexatious under the circumstances. But the court should not grant the temporary injunction gratuitously without clear proof of claims of enforcement.

The whole purpose of granting an injunction is to preserve the status quo as was noted in the case of *Humphrey Nzeyi vs Bank of Uganda and Attorney General Constitutional Application No.01 of 2013.* Honourable Justice Remmy Kasule noted that an order to maintain the status quo is intended to prevent any of the parties involved in a dispute from taking any action until the matter is resolved by court.

This court has wide discretion at this stage to consider any factor which would have a bearing on the issue whether the injunction ought to be granted. It is for the court to determine the weight to be accorded to a particular factor weighed in balance and where they appear to be balanced the court ought to consider and strive to preserve the status quo.

Other factors that may be taken into account in determining the balance of convenience include the importance in upholding the law of the land or rule of law and the duty placed on the authority to enforce the law in public interest. The actions of the respondent to pass resolutions in respect of the said property were based on reports of Constitutional organs like Parliamentary Committee and Auditor General's Office which have found fault with the process of taking over of Bat Valley School which is a public good for education of students from poor families.

This court in the exercise of its discretion ought to avoid any absurdity in application of the law since the damage the applicant will suffer if court rules in his favour will be greater and irreparable. It is a well settled preposition of the law that an interim injunction order can be granted only if the applicant will suffer irreparable injury or loss keeping in view the strength of the parties' case. Whatever, the applicant claims to be the likely injury they will suffer would be atoned for by way of damages.

The courts when exercising power of judicial review have a duty of ensuring that the public body or officer has acted in accordance with the law or within the 'four corners' of the legislation or constitution and thus enforcing the rule of law. The court would be greatly inclined to granting interim remedies as it establishes the propriety of the decision in order not to render the application nugatory. The decision under challenge derives its authority from the law under Section 34 of the Kampala Capital City Act which allows the council to veto any decisions of Urban Division Council which is illegal. The court's power to grant a temporary injunction is extraordinary in nature and it can be exercised cautiously and with circumspection. A party is not entitled to this relief as a matter of right or course. Grant of temporary injunction being equitable remedy, it is in discretion of the court and such discretion must be exercised in favour of the applicant only if the court is satisfied that, unless the respondent is restrained by an order of injunction, irreparable loss or damage will be caused to the applicant. The court grants such relief *ex debitio justitiae*, i.e to meet the ends of justice. The court must keep in mind the principles of justice and fair play and should exercise its discretion only if the ends of justice require it. See *Section 64 of the Civil Procedure Act*.

In the result for the reasons stated herein above this application fails. The costs shall be in the cause.

## **I so Order**

*Ssekaana Musa Judge 17 th May 2024*