Yapkwobei & 9 Others v Kayosi Farmers' Co-operative Society & 2 Others (Miscellaneous Application 147 of 2024) [2025] UGHC 39 (10 February 2025)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBALE **MISCELLANEOUS APPLICATION NO. 147 OF 2024** (ARISING FROM CIVIL REVISION NO. 84 OF 2024) (ARISING FROM LAND SUIT NO. 20 OF 2024)

- 1. YAPKWOBEI MASTURA - 2. MUGALA SAFIYA - 3. MULONGO YASIN NAKAWIKA - 4. WALYOMBEKA MUHAMMAD - 5. MWASAME RASHID - 6. MASINDE JUMA MURAN - 7. KHAUKA FRANCIS - 8. MBATO FRED - 9. CHEMUSTO ABDELLA

10. CHEPTEGEI SADIKI :::::::::::::::::::::::::::::::::::

#### **VERSUS**

- 1. KAYOSI FARMERS' CO-OPERATIVE SOCIETY - 2. MITSOBISHI AGRICULTURE COMPANY LTD - 3. COMMISSIONER LAND REGISTRATION::::::::::::::::::::::::::::::::::::

## **BEFORE: HON. JUSTICE LUBEGA FAROUQ**

#### **RULING**

## 1. Introduction

- 2. This application was brought by way of a notice of motion under Section 33 now 37 of the Judicature Act Cap 16, S.98 of the Civil Procedure Act Cap. 282, and Order 50 Rules 8 of the Civil Procedure Rules SI.71, seeking for orders that- - a) The ruling and orders entered by the learned Deputy Registrar in Misc. Application No.84 of 2024 on the 4<sup>th</sup> day of June be set aside; - b) The Applicants be granted a temporary injunction restraining the Respondents by themselves and other agents acting under them or their authority from further selling, transferring, mortgaging, leasing, evicting

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the Applicants or conducting any further dealings of whatsoever nature and carrying out any activity that may interfere with the status quo of usage and ownership of the suit land described as FRV HQT 1575, Folio 2, Block 2, Plot 310 Kween in the name of the 1<sup>st</sup> Respondent till disposal of the main suit;

- c) The status quo of the suit land be maintained pending the hearing and determination of land Suit No. 20 of 2024; - d) Costs of the application be provided for.

#### 3. Background

- 4. The background of this application is that the Applicants filed Land Suit No. 20 of 2024 before this court for among other orders the cancelation of the Respondent's certificate of title for land comprised in FRV HQT 1575, Folio 2 Block 2 Plot 310, situate at Kween. - 5. Subsequently, the Applicants filed Miscellaneous Application No. 84 of 2024 arising from Land Suit No. 20 of 2024 seeking for temporary injunction against the Respondents. - 6. The said application for temporary injunction was heard and determined by the Deputy Registrar dismissing the same, hence, the instant application/appeal. - 7. This application is premised on the grounds set out in the supporting affidavits of the 8<sup>th</sup> Applicant **MBATO FRED** and 9<sup>th</sup> Applicant **CHEMUSTO ABDELLA**, briefly the grounds are that- - $i.$ The Applicants filed Land Suit No. 020 of 2024 which is still pending before this court for cancellation of the 1<sup>st</sup> Respondent's certificate of title; - The Applicants filed Miscellaneous Application. No. 020 of 2024 for ii. Temporary injunction which was dismissed by the Deputy Registrar; - iii. The Deputy Registrar erred in law and fact when he dismissed Misc. Application No. 84 of 2024 in total disregard of the law and procedure; - The Deputy Registrar erred in law and fact when he held that the iv. Applicant's main suit discloses no prima facie case against the Respondent;

- The Deputy Registrar erred in law and fact when he misapplied the law on $V$ . temporary injunction by discussing merits of the main suit; - The Deputy Registrar erred in law and fact when he held that the Applicant vi. shall not suffer irreparable damages; - The Deputy Registrar erred in law and fact when he misapplied the vii. principles of maintaining status quo; - viii. The Deputy Registrar erred in law and fact when he held that balance of convenience was in favour of the $2^{nd}$ Respondent; - The decision of the Deputy Registrar Contravenes and/or offends both the ix. law and procedure; - The decision of the Deputy Registrar occasioned a miscarriage of justice; $\mathbf{X}.$ - If the decision of the Deputy Registrar is not set aside, then the applicants xi. stand to be evicted from the suit land by the Respondent; - The Applicants shall suffer irreparable damages if this application is not xii. granted by this court as the Applicants have serious sentimental attachments to the suit land and the Deputy Registrar has clearly barred them from going to the suit land; - The Applicants enjoyed possession of the suit land by way of settlement xiii. and cultivation which the learned Deputy Registrar disregarded; - xiv. The balance of convenience lies in favour of the Applicants; - It is just and equitable that court grants this application to maintain the XV. status quo. - 8. The application/appeal is opposed through affidavits in reply deponed by ADIEMA **KWEMBOI**, the 1<sup>st</sup> Respondent's Chairperson and **AKHTAR ALI**, the 2<sup>nd</sup> Respondent's managing Director the grounds are briefly as follows- - i. The Deputy Registrar did not error in law and fact when he held that Misc. Application. No. 84 of 2024 does not disclose a prima facie case; - The Deputy Registrar did not discuss the merits of the main suit. ii. - That the locus visit established that the Applicants were not in possession iii. of the suit land:

- The Applicants will not suffer any irreparable damages since they are not iv. in possession of suit land; - The Deputy Registrar did not occasion any miscarriage of justice, since the $V$ . Applicants did not prove the grounds of granting a temporary injunction; - vi. The procedure of granting temporary injunction was properly followed before the same was granted; - vii. The Applicants' application is frivolous, and only intended to waste court's time; - 9. It is in the interest of justice and equity that this application is dismissed with costs.

#### 10. **Legal representation**

- 11. At the hearing of this application the Applicant was represented by $M/s$ Nappa & Co. Advocates and the 1<sup>st</sup> & 2<sup>nd</sup> Respondents were represented by M/s Sanywa, Wabwire & Co. Advocates and M/s Kisambira Advocates & Solicitors. - 12. The parties filed written submissions which I have considered in determination of this application.

# 13. Preliminary objections

- 14. The $2^{nd}$ Respondent's counsel raised preliminary objections on point of laws to the effect that the instant application is procedurally improper before this court since the same was brought in a wrong format, and for that reason it ought to be dismissed with costs. - 15. Counsel for the $2^{nd}$ Respondent submitted that the instant application violates the provisions of Order 50 Rule 8 of the Civil Procedure Rules which in his view carries the same intention with Order 43 Rule I of the Civil Procedure Rules that requires the Appellants/Applicants to lay down concise grounds of appeal in the motion. - 16. Counsel further submitted that the Applicants/Appellants were meant to file a miscellaneous appeal or civil appeal as it is provided under the law, but rather the Applicants filed a miscellaneous application which is procedurally improper, and incurably defective.

- 17. It was also submitted that the mode of application and submissions by the Applicants makes the instant matter res judicata because the grounds in the application were dully considered and determined by the Deputy Registrar. - 18. The 2<sup>nd</sup> Respondent's counsel further contended that the application was served to the $2^{nd}$ Respondent out of time in violation of Order 52 Rules 1 & 2 of the Civil Procedure Rules which provides that summons should be served within 21 days. Counsel's argument was premised on the fact that the Registrar issued the application/ summons on 13/06/2024 and service was effected on the 2<sup>nd</sup> Respondent on 8/07/2024 beyond the mandatory period of service. As a result, it was prayed that this application be dismissed with costs to the $2^{nd}$ Respondent. - 19. I note that the Applicants did not file rejoinder submissions to address the preliminary objections raised by the Counsel for the $2^{nd}$ Respondent. However, since I am not bound by the submissions of counsel, I will deal with the substance of the objections before entertaining the merits of this application.

#### 20. Determination of court.

- 21. The First Preliminary Objection - 22. The 2<sup>nd</sup> Respondent's counsel faults the Applicants' procedure in filing this matter. In his view, this application ought to have been filed as a miscellaneous appeal or civil appeal with concise grounds clearly stated therein. He argues that the instant application in its form violates the requirements of the law under Order 50 Rule 8 and Order 43 Rule I of the Civil Procedure Rules. - 23. Order 50 Rule 8 of the Civil Procedure Rules under which this application is centrally premised provides that-

"Any person aggrieved by any order of a registrar may appeal from the order to the High Court. The appeal shall be by motion on notice."

24. The contents of a notice of motion are enlisted under Order 52 Rule 3 of the Civil Procedure Rules, it states that-

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"Every notice of motion shall state in general terms the grounds of the application, and, where any motion is grounded on evidence by affidavit, a copy of any affidavit intended to be used shall be served with the notice of motion".

- 25. My appreciation of the above provisions is that where a party is aggrieved with the decision of the Registrar, the aggrieved party has a latitude in law to appeal against the decision of the Registrar to the High court. This appeal takes the mode of notice of motion stating the grounds for the appeal, and it is supported by an affidavit. - 26. In the present case, the Appellants instituted this appeal/application by a notice of motion supported by the affidavits of the $8^{th}$ & $9^{th}$ Applicants. In my view the Appellants followed the right procedure in filling this appeal. - 27. The argument by the $2^{nd}$ Respondent's counsel that Applicants were meant to file a miscellaneous appeal or civil appeal instead of a miscellaneous application which they filed does not merit. The naming/titling of the suit only serves a cardinal purpose of identification of that particular matter, it does not go to the substance of a suit or any matter before court, anything improperly done in that aspect is curable under Article 126 (2) (e) of the 1995 Constitution of Uganda. - 28. In that regard, the first preliminary objection is overruled. - 29. The Second preliminary objection - 30. Counsel for the $2^{nd}$ Respondent submitted that the instant matter is res judicata because the grounds in the application/appeal were dully considered and determined by the Deputy Registrar. - 31. Section 7 of the Civil Procedure Act stipulated that-

"No court shall try any suit or issue in which the matter is directly and substantially in issue in a former suit between the same parties or parties under which they claim, litigating under the same title, in a *Court of competent jurisdiction try the subsequent or the suit in which*

the issue has been subsequently raised and has been heard and finally decided by that Court"

32. In the case of Maniraguha V. Nkundiye (Civil Appeal No. 23 OF 2005) [2014] UGCA 1, the Court of Appeal had this to say about the doctrine of res-judicata-

> "The doctrine of res-judicata, embodied in S.7 of the Civil **Procedure Act**, is a fundament doctrine of all courts that there must be an end of litigation. The spirit of the doctrine succinctly expressed in the well-known maxim: 'nemo debt bis vexari pro una et eada causa' (No one should be vexed twice for the same cause). Justice requires that every matter should be once fairly tried and having been tried once, all litigation about it should be concluded forever between the parties. The test whether or not a suit is barred by **res-judicata** appears to be that the plaintiff in the second suit trying to bring before the court in another way and in the form of a new cause of action, a transaction which he has already put before a court of competent jurisdiction in earlier proceedings and which has been adjudicated upon. If so, the plea of **res-judicata** applied not only to points upon which the first court was actually required to adjudicate but to every point which properly belongs to the subject of litigation and which the parties, exercising reasonable diligence might have brought forward at the time".

33. The instant application was preferred by way of an appeal/application against the decision of the Deputy Registrar. Whereas the Deputy Registrar who determined the main application is considered to be part and partial of the composition of the High court, the law under Order 50 Rule 8 of the Civil Procedure Rules establishes the avenue for aggrieved

litigants to file an appeal against the decision of the Registrar to High court.

- 34. By virtue of Order 50 rule 8, it is clear that this is not a fresh hearing but rather an appeal that requires this court to evaluate the evidence on the court record afresh and come to its own conclusion as an appellate court. - 35. Ordinarily, section 7 of the Judicature Act comes into play when a matter which was previous determined on merit by a court with competent jurisdiction is heard afresh. This is however, not the case in this matter. - 36. What this court is currently determining is an appeal from the decision of the Deputy Registrar, but not a fresh suit like the learned counsel for the Respondents wants this court to believe. - 37. It is therefore a misconception to say that the matter has been retried to amount to res-judicata. - 38. The second preliminary objection is overruled. - 39. *The third preliminary objection* - 40. The $2^{nd}$ Respondent's counsel submitted that the $2^{nd}$ Respondent was served out of time in violation of Order 52 Rules 1 & 2 of the Civil Procedure Rules which provides that summons should be filed within 21 days. Counsel argued that the Deputy Registrar issued the application/ summons on $13/06/2024$ and service was effected on the 2<sup>nd</sup> Respondent on $8/07/2024$ beyond the mandatory period of service. - 41. This court has previously ruled in **Bugishu Muslim District Council V.** Musa Kalokola & 2 ors, Miscellaneous Application No. 105 of 2024 that-

"The law is silent on the timelines within which a notice of motion is supposed to be served on the opposite party. However, a party has to serve the same to the adverse party within a reasonable time".

42. The facts as submitted by the Counsel for the $2^{nd}$ Respondent are that the Deputy Registrar issued the application/summons on 13/06/2024 and service was effected on the $2^{nd}$ Respondent on 8/07/2024. I find that the service of the notice of motion was done within a reasonable time. 43. Accordingly, the third preliminary objection is also overruled.

# 44. Determination of the application/appeal on merit

- 45. I will now proceed to consider the application/appeal on its merit. - 46. Counsel for the Applicants framed two issues for determination as follows - *a) Whether the learned Deputy Registrar erred in law and fact when he* declined to grant the temporary injunction prayed for by the *Applicants?* - *b) Whether the learned Deputy Registrar erred in law and fact when he* essentially determined the main suit in a summary manner?

#### 47. Analysis of court

- 48. Issue One: Whether the learned Deputy Registrar erred in law and fact when he declined to grant the temporary injunction prayed for by the Applicants? - 49. The granting of a temporary injunction is an exercise of judicial discretion. The purpose of which is to preserve matters in status quo until the question to be investigated in the suit can be finally disposed. - 50. The status quo is the existing state of affairs, things or circumstances during the period immediately preceding the application for an Interlocutory Injunction. Put another way, status quo can also be defined as the condition of the parties before any action is taken to change that condition. - 51. Order 41 Rule 1 of the Civil Procedure Rules provides 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.

reasonal a commentario de Arabamento de P

- 52. The conditions necessary for granting of a temporary injunction were enunciated in the case of American Cynamide V. Ethicon [1975] ALL **ER 504.** These conditions are that; - *Firstly, that, the applicant must show a prima facie case with* i. *a probability of success.* - Secondly, such 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 would decide an application iii. on the balance of convenience. - 53. The above conditions will guide this court in determining whether the Deputy Registrar erred or not.

## 54. Prima facie case with a probability of success

- 55. On this issue, the Deputy Registrar stressed in his ruling that the Applicants failed to raise a serious issue for determination. That the Applicants alleged fraud in their Plaint, but they failed to adduce any evidence to prove that the $2^{nd}$ Respondent was aware of any fraud regarding the suit land. The Deputy Registrar therefore, formed an opinion that the $2^{nd}$ Respondent is a bona fide purchaser for value of the suit land, and that in absence of fraud against the 2<sup>nd</sup> Respondent, she is protected under Section 176 of the Registration of titles Act. - 56. The Applicants fault the Deputy Registrar for delving into the merits of case, and submitted that to establish a prima facie, the law does not require that the Applicant has a plausible case instead, it only necessitates a determination by the court that the claim is not frivolous or vexatious, and that there is a serious issue to be decided at trial. For

that proposition counsel relied on the cases Daniel Mukwaya V. Administrator General HCCS 630 of 1993 and Alley Route Ltd V. Uganda Development Bank Ltd. Misc. Application No. 634 of 2006.

- 57. It is trite law that in establishing a prima facie case with a probability of success, all that is required from the Applicant is to prove that there is a serious issue to be tried by court and that the issue is neither frivolous nor vexatious - 58. In the case of **Godfery Ssekitoleko & 4 others V. Mutabaazi & ors CACA** No.65 of 2001, the Learned Justices of Appeal held that-

"In exercising its jurisdiction to protect legal rights to property from irreparable or serious damage pending trial, the Court does not determine the legal rights to property but merely preserves in its actual condition until the legal title or ownership can be established or declared"

59. Also the Supreme Court of India in the case of Dalpat Kumar V. Prahlad Singh, (1992)1 SCC 719, held that;

> ".......... Prima facie case is not to be confused with prima facie title which has to be established on evidence at the trial. Only **prima facie case** is a substantial question raised, bona fide, which needs investigation and a decision on merits. However, satisfaction that there is a **prima facie case** by itself is not sufficient to grant injunction."

- 60. In the instant case, the Deputy Registrar stated in his impugned ruling that the Applicants alleged fraud in their plaint which they failed to prove against the 2<sup>nd</sup> Respondent. In that streak, he pronounced that the Applicants failed to raise a bonafide triable issue required for granting an order of temporary injunction. - 61. With due respect to the Deputy Registrar, the Applicants were not required to prove their allegations of fraud against the Respondents at the stage of moving court for an order of injunction. The mere pleading in the

Applicants' plaint and averments in paragraph 8 of the affidavit in support of their application that attribute fraud on the Respondents in acquiring the certificate of title for the disputed land was enough reason to establish that the Applicants have a serious and bonafide triable issue in the suit.

- 62. I also note that the Deputy Registrar made a pronouncement in the impugned ruling that the $2^{nd}$ Respondent is a bona fide purchaser for value of the suit property, and that in absence of fraud against her, she is protected by S.176 of the Registration of Titles Act. In my view, the pronouncement by the Deputy Registrar was akin to determining the final rights of parties which is contrary to the trial process, and prejudges the matter before evidence is led in the main suit to substantiate the claim of parties. - 63. In the case of Malingumu Gashumba V. Deborah Amanya, Misc. Application No.37 of 2021, my brother Judge Musa Ssekaana while faced with the similar issue like one in the instant case had this to say-

"In determination of an interlocutory application pending the trial of a substantive case, care should be taken not to make pronouncements which may prejudice the trial of the claims *filed and still pending before the court."*

- 64. In the view of the above, I find that it was erroneous for the Deputy Registrar to make pronouncements on the final rights of the parties while determining an interlocutory application for temporary injunction. - 65. Irreparable injury - 66. It was the finding of the learned Deputy Registrar that when he visited locus, it was observed that the $2^{nd}$ Respondent is in possession of the suit land utilizing it for agriculture, and that the uncontroverted evidence contained in paragraph 5 of the 2<sup>nd</sup> Respondent's affidavit in reply was that the $2^{nd}$ Respondent has invested over Ugx 1,000,000,000/= (One Billion Uganda Shillings), and has no intentions of selling it off. - 67. From the record of court before the Deputy Registrar, there is nothing to show that the $2<sup>nd</sup>$ Respondent's said averments relating to possession and

utilization of the suit land were rebutted by the Applicants. The Deputy Registrar had the opportunity to visit locus, and ascertained facts which largely formed the basis of his ruling.

68. I have addressed myself on the case of Kiyimba Kaggwa V. Hajji Abdu Nasser Katende [1985] 43, where it was observed that-

> "Irreparable injury does not mean that there must not be physical possibility of repairing the injury but means that the injury must be a substantial or material one that cannot be *adequately compensated for in damages*"

69. I have also carefully studied the impugned ruling of the Deputy Registrar. My finding is that he properly addressed his mind on the law regarding the aspect of irreparable damages. I have further looked at the affidavits and submissions of the Applicants but I have not been able to find anything peculiar warranting an interference with the findings of the Deputy Registrar on the aspect of irreparable injury/damages.

#### 70. Status Quo.

- 71. I have already indicated in the prologue of my analysis that status quo is the existing state of affairs, things or circumstances during the period immediately preceding the application for an Interlocutory Injunction. Therefore, the granting of a temporary injunction is an exercise of judicial discretion. The purpose of which is to preserve matters in **status quo.** - 72. On perusal of the affidavit in support of Misc. Application No. 84 of 2024 which gives rise to the instant matter, I note that a one Mbatu Fred states in paragraph 7 that at all times the Applicants have been and are still in physical possession of the suit land by way of cultivation, farming and settlements. Annexture B on the said affidavit shows a picture of a mud and wattle house and tomato and yam gardens. - 73. However, the Deputy Registrar indicates in his ruling that when court visited locus, it did not observe any houses for the Respondents, but was only able to observe water channels/ trenches belonging to the $2<sup>nd</sup>$ Respondent.

74. Like I have sated in the foregoing, the learned Deputy Registrar had the opportunity to visit locus, and ascertained facts which largely formed the basis of his ruling. This court which has not visited locus, cannot have a different observatory opinion from that of the judicial officer who visited locus unless the circumstances are so glaring on the face of record.

### 75. Balance of convenience

- 76. It is trite law that if the court is in doubt on any of the above principles, it will decide the application of injunction on the balance of convenience. - 77. The Deputy Registrar indicated in the impugned ruling that the 2<sup>nd</sup> Respondent is running projects and activities on the suitland and there is an indication that a lot of resources and money have been involved. He therefore concluded that in the circumstances the balance of convenience lies in favour of the $2^{nd}$ Respondent. - 78. On the other hand, the Applicants contested that the balance of convenience lie in their favour since they are carrying out cultivation of various crops on the suit land, and at the same time having settlements thereon. - 79. In Eriksen Motors Ltd V. Protea Motors and Another 1973 (3) SA 685 (A) at page 691E-F the Court held that-

"In exercising its discretion the Court weighs, inter alia, the prejudice to the Applicant, if the interdict is withheld against the prejudice to the Respondent if it is granted. This is sometimes called the balance of convenience.

80. The learned Deputy Registrar indicated in his impugned ruling that when court visited locus, there was nothing to prove the existence of the Applicants' allegations that they are in possession of the suit land, but rather court observed that there were water channels/ trenches on the suit land belonging to the 2<sup>nd</sup> Respondent. In the view of the court's observations at locus, I agree with the finding of the learned Deputy Registrar that given the circumstances, balance of convenience was in favour of the party in possession of the suit land.

- 81. Issue Two: Whether the learned Deputy Registrar erred in law and fact when he essentially determined the main suit in a summary *manner?* - 82. This issue has been materially dealt with under issue one. I agree with the submissions of Applicants' counsel that it was erroneous for the Deputy Registrar to make pronouncements on the final rights of the parties while determining an interlocutory application for temporary injunction. However, this by itself is not sufficient reason to set aside the whole ruling and orders of the Deputy Registrar since his decision was not solely made depending on his pronouncements about the parties' rights, but also on other well settled principles like I have indicated in the foregoing. - 83. In the result, this appeal/application is dismissed. - 84. However, in the view of my findings under the first condition, the Respondents are awarded 50% of the costs for this application. I so order.

LUBEGA FAROUQ Agt. JUDGE

$\mathbb{R}^n \times \mathbb{R}^{n-1} \times \mathbb{R}^{n-1}$

Ruling delivered via the emails of the Advocates of the parties on this $10^{th}$ day of February, 2025