[2024] UGHC 1109

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

# **MISCELLANEOUS APPLICATION NO. 172 OF 2024**

### (ARISING FROM MISCELLANEOUS APPLICATION NO. 100 OF 2024)

### (ARISING FROM CIVIL SUIT NO. 34 OF 2024)

- 1. OKOBOI JAMES - 2. OKOBOI ZERIDA - 3. **MAGOMU JOHNSON** (Administrator of the estate of Magomu John Sasaga) - 4. WASIKE GEORGE BUTOTO - 5. SASAGA ISAAC - 6. MUGOODA HERBERT - 7. **MUSUNGU THOMAS PROVE** (Administrator of the estate of Kasegu Lakeri) - 8. WENWA JONATHAN MATANDA

### 9. MAWEDA DANIEL GODFREY

- $10.$ **BUGOSI ALICE** - $11.$ KHAUKHA PHILLIP::::::::::::::::::::::::::::::::: - 12. **ARYADA NAOME** - **KASSEGU MARTHER JANE** (Administrator of the estate of the 13.

*Kasegu Lakeri*)

**NERIMA FLORENCE NAPOOLI** (Administrator of the estate of the $14.$ *late Paul Shibale Napooli)*

#### 15. WEPUKHULU SARAH NAKAZI

**NABONGA MOSES** (Administrator of the estate of Wepukhulu 16.

*Muhamad Wambi)*

### **VERSUS**

- 1. MBALE CITY - **2. ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::**

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

### **RULING**

- 1. This application/appeal was brought by way of Notice of Motion under section 37 of the Judicature Act Cap16, section 98 of the Civil Procedure Act Cap 282, Order 50 rule 8 and Order 52 of the Civil Procedure Rules SI.71 for orders that- - (a) The ruling and orders entered by the learned Assistant Registrar in Miscellaneous Application No. 100 of 2024 on the 11^th day of July, 2024 be set aside; - (b) A temporary injunction doth issue restraining the Respondents by themselves, their agents, officers and all other persons acting under their authority from reallocating, re-assigning and or in any way interfering with the Applicants rights/interest over their individual lockup shops described as lock up numbers F-2007. F-1079, F-2011, F-2021, F-2023, F-2102, F-L-0014, F-2025, F-2033, F-2053, F-2026, F-1067, L-0004, F-2019 and F-2049 in Mbale central market, Mbale City pending determination of the main suit; - (c) The status quo regarding the registration/allocation status of lockup numbers F-2007, F-1079, F-2011, F-2021, F-2023, F-2102, F-L-0014, F-2025, F-2033, F-2053, F-2026, F-1067, L-0004, F-2019 and F-2049 in Mbale central market, Mbale city be maintained pending determination of the main suit; - (d) The status quo of lockup Numbers F-2007, F-1079, F-2011, F-2021, F-203, F-2102, F-L-0014, F-2025, F-F2033, F-2053, F-2026, F-1067, L-0004, F-2019 and F-2049 in Mbale central market. Mbale city be maintained pending determination of the main suit; - (e) The costs of this Application be provided for. - 2. This application was supported by the affidavit in support sworn by OKOBOI JAMES, and the grounds are briefly as follows-

- lawful the (a) That Applicants/Appellants are the allocates/assignees and holders of interests in lockup shop numbers F-2007, F-1079, F-2011, F-2021, F-2023, F-2102, F-L-0014, F-2057, F-2025, F-F2033, F-2053, F-2026, F-1067, L-0004, F-2019 and F-2049 which rights and interests they have enjoyed since as early as the 1980s prior to the establishment of the Mbale central market; - (b) That the Applicants are deeply aggrieved by the arbitrary, illegal and outrageous decision of the Respondents to purport to divest them to their rights and interests without complying with the due process of the law; - (c) That the Applicants are further aggrieved by the reluctance of the Assistant Registrar to check the Respondent's conduct and avert the complete divesture of the Applicants' interest in the said property; - (d) That it is evident the Applicants where accorded unrestricted rights in their respective lockup premises, which rights they have enjoyed until the recent unjustifiable interruption by the Respondents. As a matter of fact, the Applicants allocation letters have not been nullified or cancelled by any authority to purport to restrict their interests in their lockups; - (e) That at the locus in quo, it was apparent that the Applicants enjoyed rights over the respective Lockups shops; directly or indirectly through their agents employees, associates, relatives and family members which fact was disregarded or ignored by the trial court; - (f) That the record of proceedings indicates several procedural defects that undermine the entire decision. The trial court disregarded valid prayers for cross examination which in turn negated the interest of justice. Further on several occasions, the matter was reserved for determination of an oral application for

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an administrative order. As a matter of fact, the Applicants submissions were in respect of the administrative order and not on the substance of the main application for a temporary injunction;

- (g) That unfortunately, the trial court determined the main application without conducting an actual trial in respect of the same to wit; the trial did not attend to the cross-examination of the deponents of the respective affidavits as sought by both parties which was a fundamental omission; - (h) That the afore notwithstanding, the learned Assistant Registrar fundamentally erred in her evaluation of the evidence on the record regarding the conditions and grounds for grant of a temporary injunction, the learned Assistant Registrar rightly acknowledged that the Applicants enjoyed valid rights and interest, which rights were being threatened with actual loss of the Respondents purportedly acting upon a presidential directive but unfortunately failed to issue necessary orders in the interest of justice; - (i) That the learned Assistant Registrar equally erred when she ignored the evidence of irreparable injury that the Applicants would suffer in the event that the orders are denied and their interest divested. It's apparent that there was a deliberate intention to reallocate the subject lockups which process was still pending if the same is not restrained, there will be creation of third party interest, which situation shall completely divest the Applicants' interest and also render nugatory the pending suit before this honorable court; - (j) That the learned Assistant Registrar failed to issue orders maintaining the status quo which is the primary and basic intention of temporary injunction orders. There is a real

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likelihood that the current status quo of the said lockups shall be altered by the Respondents.

- 3. This Application was opposed by an affidavit sworn by Waboga Kasim from the Attorney General's Chambers. He averred as follows- - (a) That the Notice of Motion is full of falsehoods, misconceived, is an abuse of court process and it is procedurally irregular and the Respondents shall raise a preliminary objection on points of law at the hearing of this case; - (b) That the Applicants ceased to have interests since their lease offers expired; - (c) That the learned Assistant Registrar rightly dismissed the Applicants application since at locus in quo it was established that the Applicants are not in possession of the lockups; - (d) That there is no illegal or outrageous decision made by the Respondents against the Applicants in relation to allocation of the suit lockups; - (e) That in specific reply to paragraph 9 and 10 of the affidavit in support of this application, the $1^{st}$ Respondent is not aware of any prayers made by the Applicant for cross-examination and if at all it was there, then the trial court dealt with the same rightly; - (f) That in specific reply to paragraph $11$ of the affidavit in support of this application, the learned Assistant Registrar rightly evaluated the evidence and grounds for grant of a temporary injunction thus dismissing the application for a temporary injunction; - (g) That the Assistant Registrar did not ignore the evidence of irreparable injury as she rightly noted in her ruling that the Applicant did not contest that the leases they had with the 1^st Respondent had expired; - (h) That during the locus visits the learned Assistant Registrar of this court noted that the applicants were not in possession of the suit

lockups and had not presented any proof of ownership and the said re-allocation by the Respondents;

- (i) That in specific reply to paragraph 13 of the affidavit in support of this application, the applicants have no status quo that should be maintained since they are not in possession of the suit lockups; - (i) That it is just and equitable that this application is dismissed for being incompetent.

## 4. Legal representation

- 5. Counsel Nangulu Edmond represented the Appellants/Applicants whereas Aron Bagaye Motoka represented the Respondents. - 6. This appeal/application proceeded by way of written submissions and all parties complied.

# 7. Analysis of court

- 8. From the court record, this is an appeal/application arising from the decision of the Assistant Registrar. In her ruling which was delivered on the 11^th of October, 2024, she dismissed the application for a temporary injunction for lack of merit. - 9. The law which gives this court power to entertain applications/appeals of this nature is under Order 50 rule 8 of the Civil Procedure Rules. - Order 50 rule 8 provides that-10.

"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."

The law which governs court on how to handle temporary 11. injunction applications from which this application/appeal arise is the Judicature Act and the Civil Procedure Rules.

$\mathsf{6}$ Section 38 (1) and (3) of the Judicature Act Cap 16 provides 12. that-

"The High Court shall have power to grant an injunction to restrain any person from doing any act as may be specified by the High Court.

Where before, at or after the hearing of any cause or matter, an application is made for an injunction to prevent a threatened or apprehend waste or trespass, an injunction may be granted, if the *High Court thinks fit-*

(a) whether or not the person against whom the injunction is sought is in possession under any claim of title or claims a right to do the act sought to be restrained under any colour of title; and

(b) whether the estate claimed by the parties or any of the parties are legal or equitable."

Order 41 rule 1 provides that-13.

"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 to grant a temporary injunction to restrain such act, or make such order for the purpose of staying and preventing the removal sale, $or$ alienation, wasting, damaging,

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disposition of the property as the court thinks fit until the disposal of the suit or until further order."

14. Courts have further guided on how to manage applications of this nature and provided grounds which must be considered before an application for a temporary injunction can be granted.

In Giella V. Cassman Brown & Co Ltd [1973] 1 EA 358 Spry 15. VP at 360 it was held that:

> "The conditions for the grant of an interlocutory injunction are now I think, well settled in East Africa. First, an applicant must show a prima facie case with a *probability of success. Secondly, an interlocutory* 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 will decide an application on the balance of convenience."

Further in the case of E. L. T Kiyimba Kaggwa V. Haji Abdu 16. Nasser Katende CS No. 2109 of 1984 reported in [1985] HCB it was held that; "the granting of a temporary injunction is a judicial discretion and its purpose is to preserve the status quo until the question to be investigated in that suit is finally disposed of".

17. This matter being an appeal/application from the orders of the Assistant Registrar, I have studied the Assistant Registrar's ruling and noted that she determined the first ground on whether there was a prima facie case in the affirmative. In the view of that position, I will determine the other grounds to establish if there is any error which was committed in her ruling.

## 18. Irreparable damage

It was averred by the Appellants/Applicants that at locus at 19. quo, it was apparent that the Applicants/Appellants enjoy rights over their respective lockup shops; directly or indirectly through

agents, employees, associates, relatives and family members which fact was disregarded or ignored by the trial court.

- The above averment was buttressed by the submissions of 20. counsel for the Appellants/applicants who stated that at locus in quo, it was clear that the Applicants/Appellants were picking rent from the existing tenants without any right whatsoever. - with above submissions together the 21. Reading the it clear that the Appellant/Applicant's averment, is Appellant/Applicants are indirectly in possession or in control of the said Lockup shops through agents. This is evident from the fact that they are the ones who are collecting rent from the alleged third parties. - Secondly, counsel for the Appellant/Applicants submitted 22. that, at the locus in quo, the purported third parties lacked any documentation proving allocation of the lockup shops. Moreover, during the locus visit, the Deputy Town Clerk confirmed that the allocations were still pending the necessary signature of approval before taking effect. This further underscores that no formal transfer of the said lockup shops has yet been effected in favor of the third parties. - The trial Assistant Registrar considered paragraph 7 of the 23. Respondents' affidavit in reply where they averred that the Appellants/Applicants leases expired. However, if that was to be the position, then the parties who were in possession, would be given priority over the others. - Nevertheless, the issue of whether the Appellants/Applicants 24. leases expired or not, is a matter concerning legal ownership which to this court is an issue to be determined in the main suit. What this level, is whether the is interested in at court Appellant/Applicants have any interest or claim in the said lockup shops or whether they are in possession of the same.

- Therefore, the fact that the Appellant/Applicants are the ones 25. collecting rent from the third parties who are in occupation of the said lockup shops, is sufficient to prove that they are in possession and control of the same as they claim. - In any case, there is no proved formal transfer/re-allocation 26. of the said lockup shops to the third parties. - In the circumstance, I find that the Appellants/ Applicants 27. suffer irreparable damages. The trial Assistant Registrar will therefore erred when she resolved the same in the negative.

## 28. Balance of convenience.

Having resolved that the Appellant/Applicants are 29. in possession of the said lockup shops indirectly through agents, to avoid creation of third party rights in the presence of Civil Suit No. 34 of 2024, the balance of convenience is in favor of the Appellant/Applicants.

## 30. Status quo

- As held in E. L. T Kiyimba Kaggwa V. Haji Abdu Nasser 31. **Katende (Supra)**, the main purpose of a temporary injunction is to maintain the status quo or to preserve the property in the state it is, until final determination of the main suit. - Like I have analysed in the body of this ruling, the status quo $32.$ currently is that the said lockups shops are in the possession of the Appellants/Applicants' employees, agents or family members. Hence, the status quo is in their favor. - Secondly, it is also evident that the said lockup shops have 33. not been formally re-allocated to any other parties. In light of this, the lockup shops shall remain unallocated until the final determination of Civil Suit No. 34 of 2024. - However, before I take leave of this matter, I would like to note 34. that Miscellaneous Application No. 034 of 2024 was brought under Order 41 rule 1 of the Civil Procedure Rules. Hence, it is not true

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that it was instituted for administrative purposes like counsel for the Appellant/Applicants wants this court to believe.

- It is further observed that counsel for the Respondents raised 35. preliminary objections regarding the issue of filing two applications under the same Miscellaneous Application No. 172 of 2024. Counsel contended that the Appellants/Applicants filed an application on 16^th of July, 2024 which was not served on them and another one was filed on 3^rd of September, 2024 similar to the one of 16^th July but with no supporting affidavit. - 36. I have reviewed the court record and noted that there are two Notices of Motion filed on different dates under the same application number and addressing the same issue. However, this appears to be an administrative error, where, after an application is filed, subsequent follow-ups by the parties led court administrators to mistakenly receive a duplicate copy as a new application. - 37. It is therefore an error which this court is not convinced was committed by the Appellant/Applicants. Hence, it is overruled. - 38. Further, counsel for the Respondents argued that the Respondents were not served with the application of 16^th of July, 2024 and that its affidavit was not dated. - 39. I have perused the court record and noted that the Respondents filed their affidavit in reply on 12^th September, 2024. This is a proper indication that they were not served with the Notice of Motion as alleged in absence of any evidence to the contrary. - 40. Under Order 5 Rule 1(2) of the Civil Procedure Rules, the law requires that service should be effected within 21 days from the date of issuance. An extension of this period is permissible only upon demonstrating sufficient cause. - 41. In the instant case, the Appellant/Applicants did not rebut the Respondents' allegation. Legally, failure to serve the opposing

party within the prescribed timeframe, results in the dismissal of the application.

TUT LAND

Language of the state of the state of the state of the state of the state of

**The State of Land**

- However, since the Respondents were able to file their affidavit 42. in reply without prejudice, in the interest of justice, this preliminary objection is overruled. - Counsel for the Respondents in addition argued that the 43. affidavit of 16^th July, 2024 was not dated. I have perused the same affidavit and found that it is dated 15^th of July, 2024. This objection is also overruled. - In the upshot, this appeal hereby succeeds in the terms below-44. (a) The trial Assistant Registrar's ruling and orders are set aside. - (b) A temporary injunction is issued restraining the Respondents by themselves, their agents, officers and all other persons acting under their authority from reallocating, re-assigning and or in any way interfering with the Applicants rights/interest over their individual lockup shops described as lock up numbers F-2007. F-1079, F-2011, F-2021, F-2023, F-2102, F-L-0014, F-2025, F-2033, F-2053, F-2026, F-1067, L-0004, F-2019 and F-2049 in Mbale central market, Mbale City pending determination of the main suit; - (c) The status quo regarding the registration/allocation status of lockup numbers F-2007, F-1079, F-2011, F-2021, F-2023, F-2102, F-L-0014, F-2025, F-2033, F-2053, F-2026, F-1067, L-0004, F-2019 and F-2049 in Mbale central market, Mbale city shall be maintained pending determination of the main suit; - (d) Each party shall bear its own costs. I so order.

## LUBEGA FAROUQ

Ag. JUDGE *Ruling delivered via the emails of the Advocates of the parties on* 9^th day of December, 2024