[2024] UGHCCD 132

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION) MISCELLANEOUS APPLICATION NO. 010185 OF 2024 (ARISING FROM MISC. CAUSE NO. 0011 OF 2024)**

**LWANGA STEPHEN GOBERO:::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

### **VERSUS**

- **1. COMMISSIONER FOR LAND REGISTRATION** - **2. THE ATTORNEY GENERAL** - **3. KYALIGAMBA AMISI NUHU** - **4. MUYOMBA SANDE** - **5. SEKAGYA RONALD :::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS** - **6. NAKANWANGI MARY** - **7. PYRAMID SECURITY GROUP LTD** - **8. MATOVU ABDUL** - **9. BUKENYA ROBERT**

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

#### **RULING**

This is an application under Section 98 of the Civil Procedure Act and Section 33 of the Judicature Act and Order 41 of the Civil Procedure Rules for orders that;

*a) An injunction doth issue restraining, preventing, and stopping the Commissioner Land Registration, officials of the office of Land Registration, agents and workers and all persons deriving authority from the office of the Commissioner Land Registration from effecting and/ or registering any instruments adversely affecting the applicant's proprietorship over the suit land over the suit land until the hearing and final determination and disposal of Miscellaneous Cause No. 0011 of 2024.*

- *b) A temporary injunction doth issue restraining the 3rd, 4th , 5th ,6th , 7th ,8th , and 9th respondents jointly and /or severally, their agents, assignees, servants, workmen, or all other acting under or with instructions or those deriving title or authority from them and/ or any other person with any form of interest adverse to the applicant's proprietorship, his or her agents, assignees, servants, workmen, or all other acting under or with his or her instructions or those deriving title and authority from him or her from entering onto, carrying out construction on the suit land, disposing of, fencing off, evicting the applicant or otherwise interfering with the applicant's possession of the suit land possession on the land comprised in Bulemezi Block 582, Plot 15 LRV HQT 725 Folio 12, Land at Kitenderi and Bulemezi Block 582, Plot 14 LRV 3167 Folio 12 (herein collectively known as the suit Land) until the hearing and final determination and disposal of the main application for Judicial review.* - c) Costs of this application be provided for.

The application for temporary injunction was supported by an affidavit in support sworn by Lwanga Stephen Gobero .

- 1. The applicant is the Registered Proprietor of the land comprising in Bulemezi Block 582, Plot 15 LRV HQT 725 Folio 12, Land at Kitenderi and Bulemezi Block 582, Plot 14 LRV 3167 Folio 12 (herein collectively known as the suit Land) and has enjoyed quiet possession since 2006. - 2. That sometime in 2022 some people connected to 3rd,4th,5th,6th,7th,8th and 9th attempted to enter on the suit land and started attacking the applicant's workers with wild and baseless claims of ownership of the suit land. - 3. That the applicants filed Civil Suit No. 645 of 2022; Lwanga Stephen Gobero v Kyaligamba Amisi Nuhu & 3 Others. Immediately thereafter 3 rd to 6th respondent herein filed a complaint with the 1st respondent

against the applicant herein and others. Subsequently, the 1st respondent issued their decision and/ or Order of Amendment on the 22nd day of January 2024.

- 4. That upon obtaining the said Amendment Order, the 3rd - 9 th respondents started their illegal endeavors of forcefully and violently evicting the applicant and his agents from the suit land. A complaint was made to police at Luwero Police Station but the destruction continued unabated with help and guard of the 7th defendant. - 5. That the 3rd, 4th, 5th, 6th, 7th,8th and 9th respondents after obtaining the said Amendment Order , have since intensified their efforts to enter on the suit land, and evict the applicant by deploying several security guards from Pyramid Security Group to scare off the applicant's workers and agents, bringing on the suit land several Catepillars, tractors and Graders to level the land and destroying and looting the applicant property on the suit land. - 6. That the application for Judicial review raises a prima facie case with a probability of success in as far as the impugned Amendment Order issued by the 1st respondent was issued in violation of principles of natural justice

While the 1 st respondent filed an affidavit in reply sworn by Kafuureka Victor Jagaine- a Registrar of Titles in the office of the 1 st respondent;

- 1. The office of the 1st respondent received a complaint dated 24th day of August for an on behalf of Abdul Mugerwa, the Administrator of the estate of the Late Musa Pama and Muyawoya Sande the Administrator of the Estate of the Late Njalampande Samson. - 2. That the complaint from Abdul Matovu and Muyawoya Sande was to the effect that the certificate of title for the land comprised in Bulemezi Block 582 Plots 14 and 15 (as subdivided from Plot 13) & Block 564

Plots 32 and 33 (as subdivided from Plot 16) were illegally issued over land initially comprised in Bulemezi Block 564 Plot 16 and Bulemezi Block 582 Plots 8 and 13 under Leasehold Register Volume 942 Folio 1, that was owned by the Late Musa Pama, the Late Njalampande Samson and 8 Others as tenants in common.

- 3. That in order to investigate the matter to a logical conclusion, the 1st respondent invoked its statutory powers and invited the applicant for a public hearing together with the complainants. The hearing was conducted and attended by Abdul Matovu and Muyawoya Sande and the applicants herein. - 4. That after the Public Hearings, the office of the Commissioner Land Registration by an amendment order dated 22nd day of January, 2024 made a decision to cancel the certificates of title for land comprised in Bulemezi Block 582 Plots 14 and 15. - 5. That the said amendment order was registered under instrument No. LUW-00049115 on the 20th day of February, 2024 in respect of the Certificate of title comprised in Bulemezi Block 582 Plot 14, in effect cancelling the same. - 6. That the same amendment order was registered under instrument No. LUW-00049116 on the 20th day of February in respect of the Certificate of Title comprised in Bulemezi Block 582 Plot 15, in effect cancelling the same. - 7. That as far as the register is concerned the certificates of title comprised in Bulemezi Block 582 Plots 14 and 15 in the names of Lwanga Steven Gobero were cancelled on 20th day of February, 2024 and no longer existent on the Land Register.

The 4th, 6th, 8th, and 9th respondents filed an affidavit in reply through Matovu Abdul-8 th respondent briefly contending as follows;-

- 1. The late Pama Musa and Samson Njalampadi were with others, registered as proprietors of land comprised in LRV 4730 Folio 21 Bulemezi Block 582 Plots 8 and 13 and Bulemezi Block 564 Plot 16 land at Nkugere measuring approximately 656.7 hectares. - 2. That the said registered proprietors were from time immemorial customary tenants in possession and occupation of the suit land, who applied and obtained a lease in 1976 for an initial period of 5 years in 1976 which lease was later extended to a full term of 49 years. - 3. That their families of the deceased registered proprietors, workmen and assignees have, for decades been in possession of the suit land, with residential holdings and homes utilizing the land for commercial and subsistence agriculture. - 4. That the suit land contains their burial grounds where their ancestors have been interred, and all their cultural ceremonies are held there. - 5. The suit land is also occupied by other several persons who are tenants and currently use the land for agriculture. The said tenants have large fields of plantations and cattle grazing areas. - 6. That in 2006, the applicant and his acquaintances illegally and irregularly created certificates of title on our land and notwithstanding the illegal entries on the title we remained in undisturbed possession, occupation and utilization of the suit land upto now. - 7. That the applicant has never been in possession of the suit land or any part thereof. His attempt to trespass on the suit land in 2022 was successfully resisted.

The 7th respondent filed an affidavit through Mpabwa Joshua-Director and contended that on 22nd January 2024 the company executed a security services agreement with GM Sugar Limited. They denied the allegations of destroying and looting of the applicant property on the suit land.

The applicant filed an affidavit in rejoinder contending that he has been in occupation since the acquisition in 2003 & 2006 and has quietly possessed and always used the same for animal farming, and part of it for Pineapple and maize farming and the activities of sugar cane planting claimed in the pictures is a recent venture orchestrated in the forceful attempt of evicting the applicant.

Secondly, the suit land is unencumbered by any squatters or that it is occupied by any customary tenants and the alleged houses are not situate on the said land.

Thirdly, the land was cleared under the guard and watch of the 7th respondent during which period they destroyed the property and plantations.

The applicant was represented by *Richard Kiboneka and Remmy Bagenda* while the respondent was 1 st respondent was represented by *Ssekitto Moses and Babu Hakim* and 2nd respondent was represented by *Hillary Nathan Ebila* and 4 th,6th,8th, and 9th respondent were represented by *Rubeihayo Brian, Edgar Ayebazibwe, Oundo David Wandera* and the 7th respondent was represented by *Manzi Eric*

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

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

The applicant's counsel submitted that the applicant application raises a prima facie case with a probability of success in as far as the impugned Amendment Order issued by the 1st respondent was issued in violation of principles of natural justice. Therefore, on that basis it is Unconstitutional, illegal and unlawful and that the same is ultra vires the jurisdiction, powers, authority and mandate of the 1st respondent as it amounts to the expropriation and/ or compulsory acquisition of the applicant's property.

The applicant's counsel further submitted that the purpose of the order for temporary injunction is to preserve the status quo. The applicant has been in possession since acquisition for over 20 years. The 7th respondent came on the land to protect the interests of GM Sugar Ltd in their illegal actions after obtaining the Amendment Order on 22nd January 2024. Before the issuance of the Amendment Order, there were no activities by any of the respondents.

The respondents in their submissions stated that the applicant has not adduced any evidence that he has a good case against the respondent and further contended that the respondents have been on this land time immemorial as customary tenants in possession and occupation. That the 4th , 6 th,8th, and 9th respondents will suffer or are to lose more if the injunction is granted since they are in possession of the suit land and their families are utilizing the land for commercial and subsistence agriculture. The suit contains burial grounds for their ancestors and they host their cultural ceremonies.

## *Analysis*

A temporary injunction is a pre-emptive remedy. It is preventive in its nature. By its very nature is interim or interlocutory. Its duration is tentative, provisional, impermanent, mutable not fixed or final or conclusive. It is characterized by its for-the-time-beingness. It emanates from one of the most valuable features of equity jurisdiction to anticipate and prevent injury.

It is a jurisdiction exercised for the benefit of both parties. For the benefit of the defendant/respondent because the injunction discloses to him/her that he/she is probably proceeding without warrant of the law; for the benefit of the complainant by protecting him from injuries which if inflicted would be wholly destructive of his/her rights before they are judicially considered. See *Siteyia v Gitome & Others [1993] KLR 801*

The goal of temporary injunction is to maintain the status quo pending the outcome of the litigation. The status quo which will be preserved by a temporary injunction is the last actual, pre-dispute, peaceable, noncontested status which preceded the pending or forthcoming controversy to be resolved in the suit. This means that the injunction shall preserve or restore such relationship to a desirable state.

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 only be exercised if the court is satisfied that there is status quo to be preserved for the benefit of the parties and no injustice would be suffered by the parties.

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 Amendment Order which was issued by the 1 st respondent which had the effect of cancelling the land titles of the Applicant. The 1st respondent contends that they issued an Amendment Order and have already effected the same by cancelling the applicant. The 4 th, 6th, 8th and 9th respondents contends that they are in possession of the land since time immemorial as customary tenants and they are using the land. The 7th respondent who is not interested in the land has contended that they entered into a security service agreement with GM Sugar Limited to provide security for the sugar cane being planted on the land. The court cannot make a determination at this stage since it is yet to interrogate facts and circumstances surrounding this application.

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. The court should be given some reasonable time to determine the issues of contention without any of the parties being prejudiced.

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. It seeks to prevent harm or preserve the existing conditions so that a party's position is not prejudiced in the meantime until a resolution by court of the issues in dispute is reached. It is the last, actual, peaceable, uncontested status which preceded the pending controversy. The court should not preserve a contested status quo which is under challenge for illegality and especially under judicial review.

The applicant wants to continue with his peaceable occupation of the land as he always had for the last 20 years. The applicant contends that the 4th, 6th , 8 th and 9th respondents want to disposes him of his land using the 7th respondent workmen. The 7th respondent in their affidavit contend that they did due diligence about the ownership of the suit land and there was no doubt that the land was in possession of GM Sugar Ltd. The 4th, 6th, 8th and 9 th respondents are not mentioned as being in possession with other tenants on the said land. The court must balance the stakes of the parties in order to avoid either party being seriously prejudiced by the actions of the other.

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.

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.

The applicant ought to be protected from the actions of the 4th, 6th, 8th and 9th respondents and others who are claiming to be in possession whereas not. The impending actions must be stopped in order to preserve the peace on the land until this court determines the dispute at hand. The status quo must be preserved in the interest of justice until the main cause is determined.

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 succeeds with the following orders:

- *a) An injunction doth issue restraining, preventing, and stopping the Commissioner Land Registration, officials of the office of Land Registration, agents and workers and all persons deriving authority from the office of the Commissioner Land Registration from effecting and/ or registering any instruments adversely affecting the applicant's proprietorship over the suit land over the suit land until the hearing and final determination and disposal of Miscellaneous Cause No. 0011 of 2024.* - *b) A temporary injunction doth issue restraining the 3rd, 4th , 5th ,6th , 7th ,8th , and 9th respondents jointly and /or severally, their agents, assignees, servants, workmen, or all other acting under or with instructions or those deriving title or authority from them and/ or any other person with any form of interest*

*adverse to the applicant's proprietorship, his or her agents, assignees, servants, workmen, or all other acting under or with his or her instructions or those deriving title and authority from him or her from entering onto, carrying out construction on the suit land, disposing of, fencing off, evicting the applicant or otherwise interfering with the applicant's possession of the suit land possession on the land comprised in Bulemezi Block 582, Plot 15 LRV HQT 725 Folio 12, Land at Kitenderi and Bulemezi Block 582, Plot 14 LRV 3167 Folio 12 (herein collectively known as the suit Land) until the hearing and final determination and disposal of the main application for Judicial review.*

The costs shall be in the cause.

**I so Order**

*Ssekaana Musa Judge 23rd August 2024*