[2025] UGCA 113

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPLICATION NO. 52 OF 2025 (ARISING OUT OF CIVIL APPEAL NO. 135 OF 2020) AND (ARISING OUT OF HIGH COURT OF UGANDA AT KAMPALA (COMMMERCIAL COURT) CIVIL SUIT NO. 1082 OF 2019) AND (ARISING OUT OF HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL COURT) CIVIL SUIT NO. 454 OF 2004

FAUSTINO NTAMBARA :::::::::::::::::::::::::::::::::::

#### **VERSUS**

JACK KITYO SEGAWOLE ....................................

#### RULING OF CHRISTOPHER GASHIRABAKE, JA

#### (SINGLE JUSTICE)

#### **Brief facts**

1] The Applicant proceeded on a motion under Section 12 and 13 of the Judicature Act, Section 98 of the Civil Procedure Act, Rules 6(2), 42(1) and 43 of the Judicature (Court of Appeal) Rules. The Applicant seeks a temporary order restraining the Respondent from evicting the Applicant or any person claiming an interest in the suit land through the Applicant or in any other way interfering

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with or altering the status quo of the Suitland currently described as LRV 121 1 ,Folio 4 Buruli Block 29, Plot 421 (formerly LRV 121 ¹ Folio 4 Buruli Block 29 Plots 33, 34 & 35) Land at Kigweri and private Mailo at Buruli Ssabaddu Block 29 Plots 5, 1O,23,24,25 and 38 land at Kigweri measuring approximately 948.6 hectares, until the determination of the main application for a temporary injunction. The Applicant in addition prays that costs of the Application be provided for.

- 2] The application is premised upon five grounds which are contained in the Notice of Motion. It is contended for the applicant as follows: - The Applicant has filed an appeal which is pending hearing before this honourable court. - 11. That the Respondent has on several occasions invaded the Suitland, uprooted fences and threatened to evict the people occupying the Suitland and claiming an interest thereon under the Applicant. - 111. That the Respondent intends to dispose of the Suitland to further alienate the Applicant's interest therein. - The appeal is meritorious and shall be rendered nugatory if this application for an interim order is not granted. lV.

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- That it is fair, just and equitable that the application is allowed. - 3l The Applicant went ahead and deposed to the facts in an affidavit in support of the application. He stated that he was condemned unheard in Civil Suit No. 454 of 2OO4 where the trial Court allowed the Respondent to proceed with hearing of witnesses and subsequently an ex parte Judgment was entered despite the fact that he was never served with hearing notices. He stated further that he was advised by his advocate M/s Murangira Kasande & Co Advocates to file an appeal in this Court. However, during the hearing of the appeal, the Justices of Appeal advised him that an appeal is not the best remedy but rather ought to set aside the Application. The trial Court rejected the Application to set aside the decision in Civil Suit No. 454 of 2004 and as a result, the Respondent has gone to the suit land ald started destroying homes, uprooting fences and threatening to evict people who are settled on the suit land. The Applicant further deposed that the Respondent also intends to wrongfully dispose of the suit land and that the Respondent and third parties whose narnes he does not know have started grading, clearing, cutting down trees and evicting people from the suit land with the aim of defeating the Applicant's rights in the suit land. - 4l Jack Kityo Segawole (the Respondent) opposed the application. He deposed to the fact that the application is an abuse of court process, frivolous, full of falsehoods and that he shall raise a

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preliminary point of law to have it dismissed. He stated that it is not true that the Applicant was denied a hearing as he alleged but rather he refused to defend himself despite several adjournments. He deposed that he filed an application for rescinding of the sale agreement vide HCCS No. 0454 of 2OO4 which matter was heard and court delivered judgment in favour of the Respondent rescinding the sale agreement and that the Applicant was required to return to the Respondent the land sold, 340 heads of cattle, damages and costs of the suit pursuant to which the Respondent would also return the deposited purchase price to the Applicant herein. The Applicant was dissatisfied with the judgment and filed Civil Appeal No. 25 of 2O1O in this Court which was dismissed. The Applicant further filed Miscellaneous Application No. 1082 of 2079 in the High Court to have the ex parte Judgment set aside but it was also set aside for lack of merit. He also liled Miscellaneous Application No. 150 of 2O2L for an Injunction which was also dismissed. The Respondent contends that owing to the above, there is no lawful order preventing him from enjoying and realizing the fruits of his judgment as the sale agreement was rescinded thereby returning the parties to their original position before the sale. In his opinion, he believes that this court cannot issue an injunction where judgment was entered without a stay order and prayed that this application be dismissed with costs to the Respondent.

5] In an affidavit in rejoinder, Faustino Ntambara reiterated the facts that were set out in his afhdavit in support of the notice of motion


and stated further that this court has jurisdiction to hear an application for a temporary injunction preventing the alteration of the status quo pending the hearing of the appeal

#### Representation

- 6l At the hearing of this application, the Applicant was represented by Mr. Kaganzi Lester, while the Respondent was represented by Mr. Kagolo Friday Robert. Both counsel filed submissions which I have considered when resolving the application. - 7l During hearing, counsel for the Applicant clarified that this is an application for a temporary injunction and not for an interim injunction as he has intimated in his pleadings

## Applicants submissions

- 8] Applicant's counsel gave a brief background of the dispute. I shall not repeat it here. - 9l With respect to the status quo of the suit 1and, counsel submitted that it is trite law that the granting of a temporary injunction is an exercise of judicial discretion and the purpose of granting is for preserving the status quo until the question to be investigated can be finally disposed of. For guidance, counsel cited the case of E. L. T Kiyimba Kaggwa vs Haiii Katende Abdul Nasser, Civil suit No. 2lO9 of 1984 which was quoted in the case of Olum


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Tremors & 2 others vs Akong Maratina & another, CA Miscellaneous Application No. 246 of 2023.

- 1Ol Counsel submitted that for the application to be sustained, three conditions must be satisfied by the Applicant. In Olum Tremors & 2 others vs Akong Maratina & another (Supraf where court cited E. L. T Kiyimba Kaggwa vs Hajji Katende Abdul Nasser (Supra) Court outlined the criterial for granting ^a temporary injunction to include; - ¹ The applicant must show a prima facie case with ^a probability of success. - That the applicant might otherwise suffer irreparable injury which would not adequately compensated by an award of damages. 11. - If the court is in doubt, it would decide an application on a balance of convenience. 111.

# Prima facie case with a likelihood of success

111 Counsel referred to MP Electronics Limited & Another vs Ashishi Shantal Kamani & 2 others CA Civil Appeal No. 1266 of 2023 where it was held that the likelihood of success, is the most important consideration in an application for stay of execution. Therefore, it is incumbent upon the applicant to avail evidence or, material to the court in order for it to establish whether or not the application has a prima facie case on appeal.


- I2l He submitted that on a prima facie case, the Court must be satisfied that the case so instituted by the Applicant is not frivolous or vexatious and that there is a serious case to be tried as it was stated in Amerlcan Cyanamid Co. vs Ethicon Ltd [197s] l ALL ER sO4. - 131 Counsel went ahead and referred to Paragraphs 2,3,4,5,6,7,8,9,10, 11,15,16 and 18 of the Applicant'affidavit in support to prove the first element of a prima facie case and submitted that the above paragraphs are sufficient to establish that there is a prima facie case with a likelihood of success which needs to be tried.

# That the applicant shall suffer irreparable damage that cannot be atoned by the award of damages if the application is not granted.

141 In defining irreparable damage, counsel referred to Black's Law Dictionary, 9th Edition, at page 447 to mean; "damage that cannot be easily ascertained because there is no fixed pecuniary standard of measurement. He referred to Kiyimba Kaggwa vs Hajji Abdu Nasser Katende (1985) HCB 186 where court stated that irreparable damage or injury does not mean that there must not be physical possibility if repairing the injury but means that the injury must be a substantial or materia-l one that cannot be adequately compensated for in damages.

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- 151 Counsel referred to paragraphs 12,13,14,17 ar-d 19 of the Applicant's affidavit where he deposed that the Respondent has gone to the suit land and started destroying homes, uprooting fences and threatening to evict people who have settled on the suit land. He added that the Respondent intends to dispose of the suit land to further alienate the Applicants claim to the land. - 161 In conclusion, counsel invited this court to find that the injury the Applicant and other people on the land who claim an interest through him are likely to suffer and cannot be atoned by an award of damages if this application is not granted.

## Balance of Convenience

171 Counsel submitted that the balance of convenience lies more on the one who will suffer more if the Respondent is not restrained in the activities complained in the suit and that in arriving at the proper decision whether the balance of convenience favours the Applicant or not, court must weigh the loss or the risk of exposure for the application in the event the order is denied and the damage which could be suffered if it is not granted. For guidance, counsel referred to Jayndrakumar Devechand Devani vs Haridas Vallabdas Bhadresa & another Civil Appeal No, 21 of 1971 cited in the case of Legal Brains Trust Ltd vs Attorney General, CA Civil Application No. 56 of 2023.

 - 181 Counsel submitted that the court must be satisfied that the comparative mischief, hardship or the inconvenience which is likely to be caused to the Applicant by refusing the injunction will be greater than that which is likely to be caused to the opposite party by granting it. - l9l Counsel referred to paragraph 20 of the affidavit in support where the applicant states that the suit land is partly occupied by individuals who claim from I under him and as such the balance of convenience is in favour of granting this Application. He submitted that the balance of convenience tilts in favour of the Applicants since there is no hardship whatsoever to be suffered by the Respondent since he has not been using the suit land like the Applicant. - 2Ol In conclusion, counsel invited this court to exercise its discretion judiciously and grant the order for a temporary injunction as sought for in the application pending the determination of the main suit.

#### Respondent's submissions

2Il In Response, Respondent's counsel submitted that the Applicant's application is an abuse of the court process and a nullity which ought to be dismissed as this Court cannot issue an injunction on a matter that is subject to a judgment of Court that has not be stayed. Counsel referred to annexture E, a decision of court where court stated that there was nothing to stay or injuct

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given the orders of the tria-l Court and submitted that the same principle be used to dismiss this application since the orders that were issued by the trial Court do not require an injunction.

- 221 Counsel went ahead to submit that the Applicant has come to this Court without clean hands as he has relused to honour the orders including but not limited to costs that were granted in Civil Appeal No.25 of2010. - 23]1 In conclusion, counsel submitted that the Applicant has not shown any plausible ground for grant of an injunction and prayed that this Court be pleased to dismiss this application with costs.

### Applicants submissions in rejoinder.

24]; In rejoinder, Counsel raised three issues.

### Whether this Application is res judicata?

25]1 Counsel referred to Section 7 of the Civil Procedure Act and made substantial reference to the decision of Ponsiano Semakula vs Susane Magala & Others, 1993 KALR, Page 213 that discuss the doctrine of res judicata. Counsel then submitted that the Applicant filed Miscellaneous Application No. 1084 of 2Ol9 in trial Court to set aside the order to proceed ex parte, it was however rejected. Thereafter, the Applicant filed Civil Appeal No. 135 of 2O2O challenging the High Court decision not to set aside the order to proceed ex parte in Miscellaneous Application No. 1082 of 2019. Furthermore, the Applicant filed an interim

application vide Miscellaneous Application No. 150 of 202 1 which was rejected.

- 261 Counsel submitted that the current application is an application for a temporary injunction and it is therefore erroneous for the Respondent to allege that the current application is res judicata. - 27\ In conclusion, counsel prayed that this court rejects the Respondent's a-rgument as it is erroneous for the Respondent to allege that the current application is res judicata.

## Whether this application reveals suflicient grounds for the grant of the prayers sought.

281 Counsel reiterated the Applicant's earlier submissions and added that the suit land is at risk of being permanently alienated, sub divided and overmn by the Respondent, his agents and employees. He added that the Respondent has taken advantage of the inordinate delay in handling the appeal, to subdivide the land and purport to sell off large parts of the land to various individuals who have now started evicting the occupants of the land with the help of local leaders.

### Rebuttal ofthe allegation ofan abuse ofcourt process.

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- 291 Counsel started his submissions by referring to Section 6(2) of the Rules of this Court and the argument by Counsel for the Respondent that the Application is an abuse of court process as the court cannot issue arr injunction on a matter that is a subject to a judgment of a court that is alive and has not been stayed. - 301 Applicant's counsel disagreed and explained that guided by Rule 6(2) of the Rules of this Court, there is no doubt that the Applicant followed the proper procedure to achieve the ends of justice as prescribed by the rules of this court. Counsel submitted further that there is no legal requirement to first apply for a stay of execution prior to applying for an injunction under the rules of this court. - 311 In conclusion, counsel prayed that this court finds that this application is not an abuse of the Court process and that a temporary injunction can be issued in the current matter.

### What remedies are available to the parties?

321 Counsel submitted the remedies available to the Applicant to include; that the application be allowed, a temporary order doth issue restraining the Respondent from evicting the Applicant or any person claiming an interest in the suit land through the Applicant or in any other way interfering with or altering the status quo of the suit land. He also prayed for costs of the Application.


#### Analvsis and decision of Court

- 331 I have carefully considered the Notice of Motion, the attendant affidavits together with the submissions and cited authorities by both Counsel, and those not cited but are relevant to this application. I choose to consider the objection raised by the Respondent together with the application. Should I find it to have merit, then the application would be rested, and vice versa. - 341 The powers of this Court to grant an order for a temporary injunction is provided for in Rule 6(2)(b) of the Rules of this Court. it is provided ttrat;

"Subject to sub rule (1) of this ntle, the institution of an appeal shall not operate to suspend ang sentence or to stay execution, but tle court maA -

b) in ang ciuil proceedings, uthere a notice of appeal has been lodged in accordance u.tith rule 76 of these rules, order a stag of execution, an injunction or a stag of proceedings on such terms as the court mag think just."

351 The purpose of an injunction was well explained in the case of Godfrey Sekitoleko & Others vs Seezi Mutabazi [2OO1-2OO5] HCB Vol. 38O. It was stated as follows;

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nThe court has a dutg to protect the interests of parties pending the disposal of the substantiue suit. The subject matter of a temporary injunction is the protection of legal ights pending litigation. In exercising its juisdiction to protect legal rights to propertg from irreparable damage pending the tial, the court does not determine the legal ights to propertg but merelg preserues it in its actual condition until legal title or ou.tnership can be ^establishe d or declare d. "

I agree with that decision but it is of persuasive import to this Court.

- 361 The Respondents preliminary objection that this Court cannot issue an injunction that is alive and has not been stayed has no merit. Rules 6(2lF) of the Rules of this Court is very clear that a party may either seek an injunction or a stay of execution once a notice ofappeal has been lodged. It does not state that an injunction is lodged after a stay of execution has been granted. I shall proceed and resolve the Application. - 3711 Applicant's counsel in their submissions discussed the principles on which an injunction can be based. The Court is tasked to confirm whether the Applicant has given persuasive reasons for this Court to grant an injunction, pending the final disposal of his intended appeal.


38] The pillars upon which an injunction can be based were stated by Lord Diplock in his decision in American Cyanamid Co. vs Ethicon Ltd [ 1975] AC 396. He laid down the principles which have been readily followed in our Courts. See for example: Robert Karnrma vs M/s Hotel International SCCA No. 8 of 199O, Wambuzi CJ as he then was held that it is generally accepted that for a temporary injunction to issue, the Court must be satisfied that;

- The applicant has a prima facie case with a probability of success. I - ll That the applicant might otherwise suffer irreparable damage which would not be adequately compensated in damages, or that the suit shall be rendered nugatory if a stay is not granted. - 111. If the court is in doubt on the above two points, then the court will decide the application on a balance of convenlence - 39] In addition, the Court is mindful that injunctions are discretionary orders, and fleibility is allowed for as long as it remains in the realm of that which is judicious. Further, the Court should not attempt to resolve issues related to the main suit. See Prof. Peter Anyang Nyongo & Others vs The Attorney Creneral ofKenya & Others; East African Court ofJustice Case Ref. No.

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1 Of 2006 (unreported). I have considered those principles when resolving this application.

# The applicant must show that he has ^a prima facie case with ^a probability of success in the appeal.

- 4Ol A pima facie case with a probability of success is no more than that the Court must be satisfied that there is a serious question to be tried. In the case of Robert Karnrma (Supra) Wambuzi CJ as he then was stated tJtat;' "the applicant is reqtired at this stage of trial to show a pima facie case and a probability of success ... but not success. " Similarly, the Indian Supreme Court in Martin Burn Ltd vs V. R. N Banerjee 1958 AIR 79 SCR 514, advised that a prima facie case does not mean a case proved to the hilt, but one which can be said to be established if the evidence led in support of the sarne were believed. It does not involve the determination of the conflict of evidence of complex questions of fact and law, which call for detailed arguments. The rationale would be that the evidence at this point (being affidavit evidence) is incomplete and not contested by arguments and cross examination. - 4ll Even so, it is incumbent upon the Appellant to adduce evidence or material upon which the Court can establish whether or not they have a pima facie case on appeal. It was the decision of the Supreme Court in Osman Kassim vs Century Bottling Company Ltd, Civil Appeal No. 34 of 2O19, that;

"A LF- "it is trite that in order to succeed on this ground, the applicant must, apart from filing the Notice of Appeal, place before tle Court mateial that goes begond a mere statement that the appeal has a likelihood of success."

- 421 The facts before this Court are that the Respondent filed Civil Suit No. 454 of 2OO4 in the High Court for recession of a sa-le agreement arnong other orders which the High Court granted. However, the Applicant was aggrieved as he was never heard at trial as he was never served with hearing notices. This prompted the Applicant to lile to file Civil Appeal No. 25 of 20 1O in this Court. However, during hearing, the Justices of Appeal dismissed that the appeal was not an appropriate remedy in the circumstances and he ought to seek to set aside the orders to proceed ex parte in the trial. The Applicant then went back to the High Court and Iiled Miscellaileous Application No. 1082 of 2OL9 to have the exparte judgment set aside which application was heard inter-parte and dismissed for lack of merit. Being dissatisfied, the Applicant filed Civil Appeal 135 of 2020 which is currently pending determination before this court. The Applicant went ahead and filed Miscellaneous Application No. 150 of 2027 an application for an interim injunction which was dismissed on a preliminary objection. - 431 I have perused the memorandum of appeal that was filed on 14tt August, 2O2O and the aflidavit evidence, I have found that this appeal has a likelihood of success and I therefore find that

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the Applicant has discharged the burden to prove that he has a prima facie case within the meaning of the authorities above cited.

## The applicant has to show that he is likely to suffer irreparable damage if the iniunction is denied.

441 The Applicant is in addition expected to show that without the injunction, he will suffer irreparable injury, the tlpe that is substantial or a material one, and thus, cannot be adequately compensated for in damages. Lord Diplock in American Cynamide Co. vs Ethicon Ltd (Supraf offered an explanation on how a claim or irreparable damage can be considered. He stated in part that:

> "the gouerning pinciple is that tte court should first consider whether if the plaintiff tuere to succeed at the tial in establishing his ight to anA injunction, he would be adequatelg compensated bg an anuard of damages for tle loss he would haue sustained as a result of the defendant continuing to do what utas sought to be enjoined between the time of the applicatton and the time of th.e tial. If damages in the measure recouerable at common la u.t would be adequate remedg and the defendant uould be in a financial position to pay them, no interlocutory injunction should normallg be granted..."


- 451 It was submitted for the Applicant that if the temporary injunction is not granted, the Applicalt and other people on the suit land who claim interest through him are likely to suffer injury that cannot be atoned by an award of damages. I do agree that no party should be deprived of their constitutional right to property before rights in a suit, in this case, an appeal have been settled. - 461 It was explained by the Applicant in paragraphs 12,13,14, 17 and 19 that the Respondent has gone to the suit land and started destroying homes, uprooting fences and threatening to evict people who are settled on the suit land. He added that the Respondent and third parties whose nEunes he does not know have started grading, clearing, cutting down trees and evicting people from the suit land. - 471 I hnd merit in the submissions for the Applicants counsel that the Applicant will suffer irreparable injury that cannot be atoned for in damages, if an injunctive order is denied.

## In whose favour is the balance of convenience?

481 It is trite law that if the Court is in doubt on any of the above two principles, it will decide the application on the balance of convenience. The concept of balance of convenience was expounded in Jayndrakumar Devechand Devani vs Haridas

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Vallabhdas Bhadresa & Another, Civil Appeal No. 21 of L97l where the Court of East Africa observed inter alia that:

> " where ang doubt exist as to the plaintiffs ight, or if his ight is not disputed, but its uiolation is denied, th.e Court, in determining whether an interloantory injunction should be granted, takes into consideration the balance of conuenience to the parties and the nature of the injury which the defendant, on the one hand, utould suffer if the injunction u.tas granted and he shauld ultimately turn out to be ight, and that which the plaintiff on the other hand, might sus/ain if the injunction uas refused and he stnuld ultimatelg turn out to be ight. The burden of proof that th.e inconuenience uhich the plaintiff will suffer by the refusal of tLrc injunction is greater than that uhich the defendant will suffer, if it is granted, lies on the plaintiff."

- 491 In the essence, the balance of convenience will lie more on the one who will suffer more if the Respondent is not restrained in the activities complained of in the appeal. In the circumstances of the matter before me, the pending appeal seeks to overturn the decision of the High Court. - 501 In this case the Applicant is in possession of the suit property. I believe the balance of convenience favours the Applicant who is in possession and stands to be prejudiced if he is evicted from the suit land.

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- 511 It is therefore my considered view that the Applicant in this case has made out a case for the issuance of a temporary injunction and I hereby grant the same with the following orders; - 521 A temporar5r injunction is hereby issued preserving the status quo, restraining the Respondent and/or his agents, any person claiming an interest in the suit land through the Applicant from interfering with or altering the status quo of the suit land comprised in LRV 121 I Folio 4 Buruli Block 29 Plot 421 (formerly LRV 1211 Folio 4 Buruli Block 29 Plots 33,34 & 35) Land at Kigweri and private Mailo at Buruli Ssabaddu Block 29 Plots 5, lO, 23, 24,25 and 38 land at Kigweri measuring approdmately 948.6 hectares until the linal determination and disposal of the appeal pending before this Court. - 531 The costs of this application shall abide the outcome of the Civil Appeal.

I so order.

^ J-u Dated at Kampala this ...... A..... day of r.,..(......., zozs

CHRISTOPHER GASHIRABAKE JUSTICE OF APPE,AL

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