[1992] UGHC 64

| REPUBLIC<br>OF<br>THE<br>UGANDA | |---------------------------------------------------------------------------------------------| | IN<br>THE<br>HIGH<br>OF<br>COURT<br>AT<br>UGANDA<br>KAMPALA | | CIVIL<br>609<br>1992<br>SUIT<br>NO.<br>OF | | 1.<br>(U)<br>ECONOMY PUBLICATIONS<br>LTD,<br>{<br>APPLICANTS/PLATNTTFF& | | 2.<br>(U)<br>ENTERPRISES<br>LTD.<br>MUGISHA<br>5<br>VERSUS | | 1.<br>NATIN<br>JAYANT<br>MADHVANI<br>5 | | i<br>2.<br>JAYANT<br>MEENA<br>MADHVANI | | 5.<br>I<br>MULJIBHAI<br>MANUBHAI<br>MADHVANI | | u,-<br>MULJIBHAI<br>PRATAP<br>MADHVANI<br>J | | RESPONDENTS/tEFENDANTS<br>5,<br>MULJIBHAI<br>SURENDRA<br>MADHVANI | | 6.,<br>REGISTERED<br>THE<br>TRUSTEES<br>OF<br>5<br>MULJIBHAI<br>FOUNDATION<br>MADHVANI | | 1<br>7,<br>LTD.<br>MADHVANI<br>COMPANY<br>AND | | s<br>THE<br>BOARD OF<br>TRUSTEES<br>OF<br>THE<br>SCHOLARSHIP<br>INDEPENDENCE<br>I<br>UGANDA | | Jt<br>Justice<br>WgNt<br>Honourable<br>Tsekook'<br>The<br>Mr><br>BEFORE.*^- |

## ORDER

**Meerta In** this Order I shall herein after refer **to Egpn^my ^Pub a^.**o**nB (TJ) Ltd^t** and Mugisha Enterprises (U) **Ltdt respectively** a« **the and second**'applicant. I shall refer to **Natin Jayant MadhyanJ Jayant-**Madhvani, Manubhai Muljibhai **Madhvani\* Pratap Mujjjbhai** Madhvani\* Surendra Muljibhai Madhvani, **The Registered of** Mujjibhai Madhvani Foundation, Madhvani And Company **Ltd| a>d The** Board of Trustees of the Uganda Independence **Sfholajsh^p Fund** respectively as the first, second, **third\* fourth| ^fth# s^xth\*** seventh and eighth applicant.

The application before me arises from the **suit in** two applicants are plaintiffs and the eighth **respondent® ar t|p all** defendants.

The suit and the application ralate to a building or buildings known as Plot No. 20 Jinja koač, Kampala. The applicants are tenants in the said building.

The application was instituted by Chamber Summons Under Order 37 Rules 2 and 9, 0.40 Rules 1 and 3 of Civil Procedure Rules and Section 101 of the Civil Procedure Act. In my view it was not necessary to cite 0.48 Rylos, and 3 as the proper Order had been cited. Nor was reference to Section 101 needed here.

The application is supported by the affidavit of Captain Roland Kakooza Mutale, (the Managing Director of the first applicant) sworn on 30th September, 1992. The affidavit and the Chamber Summons appear to allude to the End plaintiff and even non plaintiff tenants in the application. I am not satisfied as the record stands that either Captain Kakooza or the first plaintiff or both of them are agents of the 2nd plaintiff in the suit or this applieation. I see no need to refer to tenants who are not parties to this suit. Affirmations in reply were made by the 4th respondent as an individual party to the application and also in the 2nd. affirmation on behalf of the 3rd, 5th and 6th respondents. • According to the summons the applicant seeks for orders that:-

$\mathcal{L}_{\bullet}$ A temporary injunction does issue to restrain the defendants/respondents, their servants, agents and or workmen or any other person from evicting the plaintiff and his company tenants .d. : from Plot:20 Jinja Road, Kampala until the hearing and final determination of the main suit". $\mathcal{L} = \{1, 2, 3, 4, 5, 5, 5, 5, 5, 5, 5, 5, 5, 5, 5, 5, 5,$

The summons listed in brief six grounds in support of the application as ...

""(a) The respondence are threatening to evict the applicant and other tenants from Plot 20 Jinja Road without giving them sufficient notice to find alternative accommodation. (b) The respondents have continuously quarrelled amongst themselves as to who is entitled to collect and receive rent from the applicant and other tenants from the suit premises;

$\ldots \ldots$

$\cdots \cdots \cdots / 4$

- (c) Due to the respondents quarrells the applicant's tenancy and that of other tenants on the same premises have sufferred uncertainty and continued harrassment from either of the respondents at various intervals. - (d) The applicant holds a valid tenancy agreement from the eithth respondent for 2 years and has paid rent to the respondents and receipts issued thereby.

$\sim$ $\sim$

- (e) The respondents have diversely attempted to evit the applicant and other tenants from the suit premises but have failed but are still attempting to evict the applicant if not restrained. - (f) It is fair and equitable that a temporary injunction is grantea".

Mr. Kafuko-Ntuyo counsel for the applicant referred to the grounds set out in the Chamber Summons and affidavit of Captain Kakooza and affirmations of Pratap M. Madhvani in the course of his submissions.

That since 1988 applicant paid rent to 7th respondent who held: out as landlord. That in 1991 demand for rent was made by 3^nd 4^th. 5th and 6th. That because of this and confusion in Madhvani family lead to institution by applicant of Misc. Application No. 74 of 1991 (Interpleader Proceedings) by which the applicants were seeking Orders from High Court with regard to payment of the rent.

Subsequently the first applicant entered into tenancy agreement with 8th respondent, .

He further submitted that his clients have been evicted from the premises four times. He then prayed that the court should give directions regarding who is the owner and to whom rent should be paid.

In opposition on behalf of the 3rd, 4th, 5th the respondents, Mr. Ssekandi referred to High Court Misc. App. No. 74/91, Mengo

$\mathcal{L}_{\mathcal{A}}(\mathcal{A}) = \mathcal{L}_{\mathcal{A}}(\mathcal{A})$

Court Civil Suit No. GK 458 of 1992 and submitted, in summary? that the applicant is not entitled to temporary Injunction principally because the q^plicant has no: cause of action. This is because a T^^r^jF'in'junc'tion cannot be granted if ~the plaint is liable to be rejected. He advanced reasons in support of this view. He submitted that the applicant has not been open to court especially when seeking for Interim Order granted by Deputy Registrar on 1st October, 1992. S. C.

On behalf of 6th respondent, Mr. Kuteesa/made submissions similar to those of Mr. Ssekandi.

He further submitted that the suit is frivolous and and an abuse of the process of court and has no probability of success. He submitted that he who comes to equity must oome with clean hands. In his submission the applicants have not come to court with clean hands and are dissentitled from obtaining the equitable remedy of injunction.

Upon perual of the pleadings and affidavits of Captain **Kakoo^a and** the two affirmations of Pratap Muljibhai Madhvani it **is clear •'■%hat** prima facie plots ¹² to 2C Jinja Road, Kampala **is registered** in the name of the Registered Trustees of the Muljibhai **Madhvani** Foundation. They were so registered from 22nd July, 1966 as annexture nBⁿ to affirmation of Pratap Muljibhai Madhva>i, **(^th <■** respondent) shows. As the pleadings ys n^^there is **nothing ^wh^^i** makes me presume differently. The Chief Magistrate, Meng.o, **is** Civil Suit No. GK 458 of 1992 must be taken to have taken **cognisance** of that situation. I do not accept the submission that he decided conclusively that the buildings' belong **to** the Trustees **for the** simple reasons that he did not actually hear the substantive **suitf** He merely made an observation in the course of making an interior cutory order and his remarks were obiter dectum\*

................/5

- ⁴ -

In the face of my finding for the purposes only of this order that prima facie the property upon which the applicant is a tenant is registered in the name of the 6th respondent what is the fate of the present application?.

$\overline{5}$

On the basis of Annexture "B" to the Chamber Application I have no doubt that the applicant knows that the 6th applicant is a corporate body in the form of a trust. Further I have no doubt that from the contents of the Trust Deed dated 18th June, 1965 which forms part of the said annexture "B", the applicant is aware or ought to be aware that plots 12 to 20 Jinja Road, Kampala belong to the said trustee that is to say, the 6th respondent. At any rate the first paragraph of the preamble and article 1 of body of the deed lead to that conclusion. Since the applicant was in possesion of the said annexture "B", it would not have been difficult for the applicant to ascertain who is the registered proprietor of the buildings and therefore deal with that registered proprietor. Suprisingly and remarkably on 30th October, 1991 Misc. App. No. 74 of 1991 was filed. In the affidavit attached to the Notice of Motion Captain Kakooza in para 3 thereof states that by 30th October, 1991 the applicant was paying rent to Trustees of Muljibhai Madhvani Foundation who is now 6th respondent.

Even if I assume that by 1st January, 1992 when the applicant entered into tenancy agreement with Uganda Independence Seholarship Fund, the applicant was ignorant/to ownership of the building. which is not the case really, the same Scholarship Fund wrote to all tenants of the building barely two months thereafter, i.e. on 28th February, 1992 advising all tenants to pay the rent to the trustees of M. Madhvani Foundation namely 6th respondent. Besides on 5th December, 1991 counsel for the 3rd, 4th, 5th and 6th Respondents wrote to the applicant is his letter reference

$\cdots \cdots \cdots /6$

$SE/AD/130/91$ which is annexture "D" to Pratap's affirmation. The letter was copied to the DA, Kampala among others. In the face of the contents of that letter and of the other letter reference M48/91 dated 27th June, 1991 written to all tenants on behalf of 6th respondent by Muhanguzi & Co., Advocates (the letter im annexed to Pratap's affirmation), I was surprised that Mr. Kafuko insisted as late as 15th October, 1992 upon wanting to serve the 8th respondent believing that the 8th respondent is a necessary party. I can't understand it.

Let me reproduce the contents of annexture "D":

"The Economy Publications Limited Shop 20/1 Jinja Road, Kampala.

Dear Sir,

$RE:$ PREMISES AT PLOT 12-20 JINJA ROAD PROPERTY OF THE REGISTERED TRUSTEES OF MULJIBHAI MADHVANI **FOUNDATION**

We have been instructed by our client The Registered Trustees of Muljibhai Madhvani Foundation who are the Registered Proprietors of the above property to write to you as under:-

You must by now have become aware that the above property which was expropriated Property under the Expropriated Properties Ast 1982 was on 4th June, 1991 returned to our client by the Minister of Finance under certificate Authorizing Repossession No. 0681,

The above fact was communicated to you by the Departed Asians Property Custodain Board's letter Ref. VC/ADM/201 dated 2nd August, 1991 and also by serveral circular letters from M/S Muhanguzi & Co., Advocates.

You have on several occasions been required by our clients to meet their terms for the occupation of their premises, but you have either refused and/or neglected to do so. It seems you are there

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$...$ $17$

on your own, but not with the consent of our clients, the Registered Proprietors.

You are now required to immediately and in any case not later than Thursday, 12th December, 1991 to report to our chambers with all relevant documents authorising you to occupt our client's premises without their consent and if you don't have any, to indicate 'to us whether you wish to occupy our client's premises on the terms already communicated to you. In case you fail to respond as required you will immediately be considered as no longer interested in further occupation of our client's premises. You will then be expected to vacate the same or be evicted by court Bailiff without $\psi \; \bar{z} \; \; \bar{z}$ prejudice to appropriate legal action to recover mesne profits from you.

$\frac{1}{2}$ You have been given enough time to make up your mind and therefore don't expect any more.

Yours faithfully

Ssekandi & Co., Advocates"

. . . . . . . /8

At the risk of being lengthy I am obliged to also reproduce the contents of the other letter I have just mentioned is the was addressed to all the tenants by Muhanguzi & Co., Advocates again on behalf of Muljibhai Madhvani Foundation. The letter is dated 27th June, 1991 and states: -

"To: All Occupants Plot. No. 12-20 Jinja Road, Kampala.

$\cdot \lambda_{-k}$

Dear Occupants,

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$\cdots \vdots \cdots$

$\frac{1}{2}$

$\cdot$

言

$1.623, 1.14$

**Sail**

$\mathcal{A}^{\mathcal{G}}$

$RE:$ MULJIBHAI MADHVANI FOUNDATION LRV 292 FOLIO 10 PLOTS NO. 12-20 JINJA ROAD, KAMPALA

y pon the irstructions of the Registered Trustees of Muljibhai Madhvani Foundation we have to inform you as follows:-

Pursuant to certificate No. 0681 dated 4th June, 1991 copy herewith attached the above mentioned property which you occupy was returned to our above named clients, former registered proprietors thereof.

If you are desirous of occupying these premises you are required immediately on receipt of this letter to furnish us with details of exact description and size of the part you have been occupying and documentary evidence of last rent payment so as to facilitate new tenancy arrangements with our clients.

We have been instructed to inform you also that your gooperation in this regard will be reciprocated with equal cooperation from our clients.

However should any of you not wish to have a tenancy in the above premises with our clients or not act as required above them this letter serves as the statutory ninety (90) days notice from the date hereof to vacate the premises without prejudice to our client's right of action for recovery of mesne profits efsective from the 1st day of July, 1991.

Yours faithfully,

Muhanguzi & Co_\*\* Advocates" To that letter was attached a copy of the Certificate Author sing Repossession under Sections / and 5 of the Expropriated Proper ties Act, 1982. The certificate was signed by the Minister $\Sigma_{\mathcal{O}}$ Finance and clearly stated:-

"In exercise of the Powers Conferred upon the Minister by Sections / and 5 of the Act and after being satisfied with the merits of the application of the REGISTERED TRUSTEES OF MULJIBHAT MADHVANI FOUNDATION to repossess the Property Plot No. 12 JINJA ROAD, KAMPALA LRV 297 FOLIO 10 this certificate is hereby issued subject to the provisions of Section 8 (1) (d) of the $A_{\text{min}}$ authorising the said applicant to repossess the said property11. Mr. Kafuko was served with these documents at least when attached to affirmation of Pratap.

Counsel for the applicant did not deny receipt by his client • - i\_o,f—the-ae—documents^ These documents are very clear and each speaks by itself.

Muhanguzi's letter was written and most probably received by applicant at least ³ months before Miscellanous Application No. 7^/91 was instituted in court. Mr. Ssekandirs letter merely emphasized what was put to the applicant and others by Muhanguzi. Misc. Application No. 7^ of ¹⁹⁹¹ was first fixed for hearing ^a\* on 27th-November, 1991- I have perused the file and I find nothing therein showing that anything happened on 27th November, **1991♦** Nor'. has anything happened ever since by way of prosecuting or atternpting to prosecute that application. During the submissions by M»t 'Kafuko, Mr. Ssekandi interjected and volunteered **informatioi that** . •" the applicants were advised by their counsel in Miso, App\* No, ,7^/91 that the application is bad. Hence its lying dormant\* Mr# Kafuko did not challenge Jhis information. He simply stated that . although he signed that application in ¹⁹⁹¹ \* he has slice **left** the **firm**eof advocates who instituted it for the applicants, **In** the • circumstances, I have no reason to doubt the correctness of the information volunteered by Mr. Ssekandi that Miso, App, **7^/91** . .was deeme'd bad in law by the applicant's previous counsel, .. .............. Curiously and in spite of the contents of the ² **letters (** (Ssekandi1s-and Muhanguzi's) reproduced above the applicant maintans to this day that he has a valid tenancy agreement **with** the 8th respondent. And that in spite of Annexture ⁿB" t> **the** affirmation of Tratap (^€-h respondent). e ' - ' • ^G- ^c \* Tn Annexture nB^M a Mr. 'V. C;¹ Odeke, - ./10

Secretary to 8th respondent as early as 28th February, 1992 advising all tenants to pay rent to the Trustees of Plots 12,1^, 16,18 and 20. The applicant is a tenant in Plot 20, The trustees are the 6th respondent.

In spite' of all this abundance of evidence and with respect to Mr. Kafuko-I fail to understand how Mr. Kafuko accepted instructions to institute Civil Suit No. 609/92 let alone seek to prosecute the present application at any rate before the disposaly of Misc. App. No. 7^/91\*

By any account Misc. App.. No. 7^ of 199\*1 is on the same status as a suit. The remedies sought therein are virtually those sought in the present suit. I accept the view of learned counsel **'-'for.** the -respondents that the present suit **cannot** be prosecuted \*' during the-pendency of Misc. App. No. 7^/91 • application sought remedies substantially similar as remedies in Civil Suit No. 609/92. Section ⁶ of the Civil Procedure Act would bar pfosecutibn of Civil Suit No. 609/92.

**»v** ^&lt; In. my' yj-ewy; failure, by the applicant to comply or attempt *AX)* comply -with the. two letters reproduced abovezaf\i the absence of strong and overwhelming reasons I ' • accept the submissions by 'Both Ma. Ssekandi and Mr. Kuteesa that this applioatioi **is** frivolous .and yvjaxat.ions and an abuse of the process **of court® I** am not hearing • the•suit but when considering an **application for ^r** a'-temporary Injunction the probability of the success **of** the **suit** has to, b-e. considered. There are many decided cases which **give** guide\* Lines about when an application for injunction may be **either** grated, err rejected. I will content myself .by reference to the decision of the Supreme Court in its Civil Appeal No® **⁸ of 199^ •** r\*(Robert? Kaviima Vs.• Hotel International).' At page ⁶ of his judgment in the appeal Wambuzi C.. J. in/ hiss ¹ • judgment stated:- .......... ^../11

"The Principles for granting an inter locutory injunction are well settled although they have been expressed in various terms. It is generally accepted that for a temporary injunction to issue, the court must be satisfied.

$11$

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$\mathcal{I} =$

$\mathcal{L} \leftarrow \mathcal{L}$

$\mathbb{E}(\mathbb{F}_{\mathcal{X}}) = \mathbb{E}[\mathbb{E}(\mathbb{F}_{\mathcal{X}})]^2$

$\mathbf{K} \in \mathbb{R}^{n \times n \times n \times n}$

$4\cdot\cdot$

$\sim$ $\bullet$

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That the applicant has/prima facie case with a probability $1.$ of success, and

- $\overline{2}$ . That the applicant might otherwise suffer irreparable damage which would not be adequately compensated in If the court is in doubt in any of these two damages. issues, then, - $3.$ The court will decide the application on a balance of convenience.

Oder JSC restated these principles at page 7 of his judgment. I entirely agree with those principles.

The rule $(0.37$ Rule 2 $(1)$ under which the application was made reads:

"2 (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the court for a temporary injunction to restyain the defendant from committing the breach of contract or injury complained of .........." Does this rule apply to the present application?.

On the face of it, it is the 6th respondent who owns property (for the purposes of this ruling). Since 1991 the applicant has apparently not entered into a tenancy agreement with the 6th. respondent. Instead the applicant is dealing with other persons. The 6th respondent informed the applicant last year that if the applicant doesn't enter into tenancy agreement the applicant would be evicted. In these circumstances there is no centract to be breached by 6th respondent. So rule 2 $(1)$ of 0.37 doesn't apply.

$12$

It does not protect the applicant. Besides the existence of Misc. Application No. 7^/91 affects the existence of the present HCCS 609/92 and therefore this application.

-12-

\_\_\_\_\_¹ \_ \_ • Tn al¹ these\_ circurnstances , the*r*^e is in my view no evidence showing that the applicant has a prima facie case with a probability of success. Nor has the applicant demonstrated that it might suffer irreparable damage if injunction is refused. These are important matters in an application for an 'injunction.

In my view the alleged quarrels within the Madhvani family •'•are irrelevant as much as the registered proprietor of plots Nos. ¹² to ²⁰ is known. In any case thought it is unnecessary for my decision if there are quarreld the applicant can get out of the ^v inconvinience caused by the quarrels.

I therefore hold that the application is misconceived and rffu'st- fail. The applicant will pay the costs of this application, The iterim order granted by Ag. Deputy Registrar on 1st Octobe>e ¹⁹⁹² is" hereby set aside and discharge-d and • dissolved.

Before taking leave of this matter I have observations to makk. Since this application was instituted and particula>ly irfimediately before it was cause listed and soon after it was before me for hearing, on 12th October, 1992 and ever since theM there have been several advertisements in papers by some of the parties attempting to assert their respective view points. **At** •. • some point I was tempted to believe that the advertisements weye . '"oblique or veiled attempts to influence court. Actually the Managing Director of the Economy sent ^a copy of it **(Vol\* ⁶ No,** ²⁶ for week ending October, 1991)\* It had stories about **plots** 12 to ²⁰ Jinja Road, on pages ¹ and ¹¹ and this case. He again sent a copy of Mulengera News Paper( Vol. 6 No\*. 38 for week ending on 28th October, 1992)- It had ^a lengthy article on this

/13

matter on its pages ⁶ and 7- Mulengera was delivered to me persons lly in my chambers by a-young man called Lukyamuzi who claimed that he had been directed 'to do so by Captain Kakooza.

^&lt; - ' 1'3 -

I warned • the- young man of the consequences of 'this conduct. I advised Mr ^JBirte-ra-,—the"'Re^iTtrar^olFThe High Court, to inform Mr. Kafuko to .advise his client to refrain from this type of conduct. The trustees and Madhvanis advertised their view point in at least the New Vision of 9th October, 1992. 23rd October, ¹⁹⁹² **?■«** and 2^th October, 1992. Whether whoever advertised any of the articles did so out of ignorance or through some , • motive, the whole exercise was-very imprudent and unfortunate•

I should emphasize that none of the advertisement has had any bearing in making my decision in this matter,. But I felt I must point these episodes out openly for all to know and for those involved to desist from such practices in future. Channels of dealing with pending cases in any court are well known and the better those channels are fallowed and respected the **better for** the proper administration of justice. It behoves advotates **of** this court.-to impress upon litigants the necessity of yespeotilg **4** courts called upon to adjudicate on disputes.

27/10/1992.

## 28/10/1992'at 9.05 a.m.

Mr. Kafuko for applicant/plaintiff.

Mr. Ssekandi -for 2nd, ^th and 5th defendant/respondent^ Mr. Ku tee'sa for 6th respondent/defendant.

No Court Clerk.

..........

Mr. Kafuko:

$\scriptstyle 11.4\pm 2.$

$41. -$

Mr. Mwesigwa requests for matter to be stood over till 10.00 a.m. He has an application to make. He is before another judge (Bahigeine).

Mr. Ssekandi: I don't understand this application. So I see no need for adjournment.

$14$

Mr. Kuteesa: I agree with Mr. Ssekandi's submissions. Court: Ruling to be delivered as I see no good ground to $\mathcal{L}(\mathcal{L})$

adjourn the matter.

J. W. N. TSEKOOKO J U D G E

'Court clerk Ssensonga arrives:

Ruling delivered in the Chambers as open court in presence of

J. W. N. TSEKOOKO JUDGE $28/10/1992$ .

I saw the advertisment and when I pointed out to my clients, they said it was a reaction to Economy adverisement I apologise. I warned my client. I apologise.

UDGE

$28/10/1992.$

Mr. Kafuko:

plan and

Mr. Ssekandi:

$\mathcal{X}_{\mathcal{A}}$

above.

$\mathcal{L}^{\mathcal{A}}_{\mathcal{A}}(x) = \mathcal{L}^{\mathcal{A}}_{\mathcal{A}}(x)$

Mr. Kafuko: I wish to appeal but I informally request for stay of execution under S. 101 of Civil Procedure Act.

Mr. Ssekandi: S. 6 of \_CJLvaJL\_-Pnoc-e-du-re—Ac-t—ba-rs—h~rm. I~ne ed~"a formal application.

Mr. Kuteesa: I oppose this application because he is asking

for what he has lost.

Court: In all the circumstances of the whole case I see no merit in the application. It is rejected.

J. WX TSEKOOKO ..... U D G E

28/10/1992