[2023] UGHCLD 115

**THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT HOIMA MISC. APPLICATION NO.05 OF 2022 Formerly Masindi Misc. Application No.101 OF 2022** (Arising from Misc. Application No.102 of 2021) (Arising from Civil Suit No. 41 of 2021)

**1. SANASIYO LUKEYA**

**2. TUKAHIIRWA MUWEREZA**

**3. TUMUKUGIZE MUWEREZA**

**4. BIRUNGI BIMUMASO MUWEREZA**

**5. MZERI OMUKIRIZA**

#### **6. BAGUMA MUWEREZA**

**7. TUSIIME MUWEREZA :::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS**

#### **VERSUS**

**MUJUNI BENARD ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

### *Before: Hon. Justice Byaruhanga Jesse Rugyema*

### **RULING**

- [1] The Applicants brought this application under **S.83 (b) CPA**, **O.46 r.1(b) & (8)** and **O.52 CPR** for the following orders; - 1. That the ruling entered on the 07th day of July 2022 in **Misc. Application No/ 102 of 2021** restraining the Applicants jointly and/or severally, their servants, agents, employees and/or any person deriving any purported title or interest on the suit land, from further dealing and/or doing any activity on the land comprised in **FRV KIB 7, Folio 8, Block 196, Plot3 at Nyaburungi, Buyaga County, Kibaale District measuring approximately 148.1905 hectares** until the disposal of the main suit be reviewed, set aside and or varied. - 2. Costs be provided for.

- [2] The application is supported by the affidavit of **Baguma Muwereza**, the 6 th Applicant, wherein the grounds of the application are set out briefly as follows; - a) That the Applicants are aggrieved by the ruling of this honourable court, issuing a temporary injunction restraining the Applicants jointly and/or severally, their servants, agents, employees and/or any person deriving any activity comprised in **FRV KIB 7, Folio 8, Block 196, Plot3 at Nyaburungi, Buyaga County, Kibaale District measuring approximately 148.1905 hectares** until the disposal of the main suit. - b) That the Applicants are customary owners of the suit land. - c) That the Applicants are desirous of being heard to defend their interest in their various customary holdings which they legitimately acquired through inheritance and gift inter vivos. - d) That there is sufficient cause to warrant a review of the ruling in **Misc. Application No. 102 of 2021** restraining the applicants to be varied and or set aside. - e) That it is just and equitable that this application be allowed in all terms prayed for. - [3] The Application is opposed by the Respondent vide the affidavit in reply deposed by **Mujuni Benard,** the Respondent and the grounds therein briefly are; - a) That the Applicants have neither shown any sufficient reason nor demonstrated to the satisfaction of court the conditions precedent to review the decision in **Misc. Application No.102 of 2021**. - b) That the Applicants do not own any interest in land comprised **FRV KIB 7, Folio 8, Block 196, Plot3 at Nyaburungi, Buyaga County, Kibaale District measuring approximately 148.1905 hectares** and that they are mere trespassers on the land a matter which is subject to **Civil Suit No.81 of 2021.** - c) That the correspondences and reports cited and attached to the affidavit in support of the application do not in any way confer ownership of the suit land to the Applicants. - d) That I am the registered proprietor of the suit land and have been in quiet possession of the suit land since June, 2013 and I have planted trees thereon.

- e) That there is no error on the face of the record because due process of service of the application and hearing notice of the application was lawfully done and affidavits of service of the same were duly filed and therefore, the applicants are only misguiding this honourable court. - f) That the interest of justice lies with the application being dismissed with costs.

## **Background of the application**

- [4] On the 25th day of October 2021, the Respondent/plaintiff sued the Applicants/defendants in this honourable court vide **Civil Suit No. 81 of 2021** for inter alia, a declaration that the Applicants are trespassers on the Respondent's land comprised **FRV KIB 7, Folio 8, Block 196, Plot3 at Nyaburungi, Buyaga County County, Kibaale District,** an order of eviction, a permanent injunction, general damages and costs of the suit. - [5] On the day the Respondent filed his plaint, he also filed an application vide **Misc. Application No.102 of 2021** for a temporary injunction restraining the Applicants jointly and severally, their servants, agents, employees or any person deriving title or interest on the suit land from further dealing or doing any activity on the suit land. - [6] When the **Misc. Application No.102 of 2021** came up for hearing on the 6th day of July 2022, the Assistant Registrar of this court, heard the application exparte where upon a ruling granting the Application was delivered on the **20th day of July 2022**. - [7] The Applicants being dissatisfied with the ruling of the Assistant Registrar, filed the instant application seeking to vary or set aside the temporary injunction order granted in **Misc. Application No.102 of 2021.**

### **Counsel legal representation**

[8] In the instant application, Applicants were represented by **Counsel Kasangaki Simon** of **M/s Kasangaki & Co. Advocates, Masindi** while the Respondent was represented by **Counsel Asiimwe Bosco** of **M/s Muwada & Co. Advocates, Kampala.** Both counsel filed their respective

submissions for consideration in the determination of this application as permitted by this court.

# **Determination of the Application**

- [9] Counsel for the Applicants submitted that the Applicants have sufficient cause to warrant variation or setting aside the temporary injunction order entered in **Misc. Application No.102 of 2021**. That the Applicants never received any service of court documents of the chamber summons and the Applicants' former counsel neglected or failed to communicate to the Applicants about the Application for a temporary injunction which was heard and determined exparte. That mistake by counsel should not be visited upon the Applicants. Counsel relied on the authorities of **Banco Arabe Espanol Vs Bank of Uganda, SCCA No.08 of 19998** and **Florence Nabantazi Vs Naome Binsobedde, SCCA No. 06 of 1987** to support the above the submission. - [10] Counsel further submitted that the temporary order issued by this court on 7/07/2021 against the Applicants has far reaching consequences as the order impliedly restrains the Applicants from utilizing their gardens, residential holdings and unfairly placing the crops, gardens and all developments therein in the hands of the Respondent who has no developments and does not reside thereon. That the effect of the order is to change the status quo by evicting the Applicants and giving vacant possession to the Respondent, which is not the purpose temporary injunctions ought to serve. - [11] On the other hand, it is the submission of Counsel for the Respondent that the assertion by the Applicants' counsel, that mistake of counsel should not be visited on the Applicants is untenable and intended to misguide court since there is no affidavit filed by the applicants showing that the applicants' lawyers mistakenly failed to file a reply to **Misc. Application No.102 of 2021**. Counsel relied on the case of **HJK Trading Company Ltd Vs Ahmed Zziwa HCMA 1452 of 2019** where Justice Keitirima cited **Utex Industries Limited Vs Attorney General, SCCA (Civil Application) No.52 of 199** and held that,

*"the submission by counsel for the applicant that this was mistake of counsel that should not be visited on the Applicant is therefore untenable in the circumstances. It is like raising a defence of ignorance of the law…"*

Counsel concluded on this issue and submitted that this was a technique orchestrated by the Applicants' counsel to misguide court and stated that court should be guided by the above cited Supreme Court authorities.

- [12] Counsel for the Respondent submitted further that setting aside or varying the order of temporary injunction issued in **Misc. Application No.102 of 2021** merely on grounds that the Applicants claim customary bibabja interests is misconceived and an abuse of court process. That where a party is duly served with court process and fails to respond, the party is deemed to have admitted the contents of the affidavit in support of the application. He cited on the authorities of **Dorothy Adebanjo Vs Shumuk Springs Development Ltd, HCMA No.739 of 2011** and **Uganda Taxi Operators and Drivers Association Vs KCCA & Anor, HCMA No.137 of 2011.** Counsel concluded by submitting that the Applicants who admitted the application for temporary injunction cannot turn around to use court to discharge the same order unjustifiably. - [13] From the submissions of both counsel and evidence on record, I find the submission of counsel for the Applicant that mistake of counsel should not be visited on the applicants because the applicants were not informed of the said application and therefore, are not at fault when their former failed to file a response or reply to the application, untenable. This is not supported by any evidence by way of affidavit deponed by the applicants confirming the same. It thus remains mere speculation by counsel and this court cannot believe or be persuaded by the same without evidence. There is evidence that the Applicants' lawyers were duly served and they failed to file a response and that is why the application proceeded exparte. - [15] It is apparent from the record and pleadings of the parties, the temporary injunction order in **Misc. Application No. 102 of 2021** was granted exparte, and in favour the Respondent while putting the interests of the applicants at the mercy of the Respondent. The order is as follows;

*"That a temporary injunction doth issue restraining the Respondents jointly and/or severally, their servants, agents, employees, and/or any person deriving any purported title or interest on the suit land from further dealing and /or doing* *any activity comprised in FRV KIB 7, Folio 8, Block 196, Plot3 at Nyaburungi, Buyaga County, Kibaale District Measuring Approximately 148.1905 Hectares until the disposal of the Main Suit."*

- [16] From the above, it is my view, the order in its form did not clearly bring out the purpose of a temporary injunction, especially in a matter contested by both parties who claim to have interests on the disputed land. I agree with the Applicants' counsel that the temporary order, instead of maintaining the status quo until disposal of the main suit, it served the purpose of having or giving the Respondent/plaintiff exclusive possession of the land, yet, the applicants/defendants also claim to be customary bibanja holders with houses, crops, trees and other developments thereon, **(See annextures D,E,F,G,H,I,J,K,L,M of the application** and **paragraphs 6,7,8,9,10,11 &12 of the Defendants' Joint Written Statement of Defence).** Even though the Respondent claim to be the registered proprietor of the suit land, the Applicants too claim to be in possession of the suit land as customary bibanja holders, hence have an equitable interest thereon. In addition, the Applicants claim that the Respondent fraudulently obtained the Freehold certificate of title of the suit land which raise serious triable issues that ought to be resolved in the main suit **(See annextures O, P, Q, R, S, T).** - [17] From the foregoing, the record is clear, both parties claim interest in the suit land and their affidavits indicate serious triable issues to be resolved in the substantive suit. The main claim of the plaintiff/Respondent is that the Applicants are trespassers in the main suit and thus raising a triable issue. The Respondent never demonstrated by any evidence in his affidavit in support of the application for injunction that or how he would suffer any or what irreparable damage that cannot be adequately compensated by an award of damages. - [18] Lastly, the instant injunction appear to be disposing of the main suit in view of the fact that the plaintiff/Respondent is seeking among other things, a declaration that the Applicants are trespassers and an eviction order against the Applicants from the suit land. - [19] The law under **Section 98 of the CPA**, this court has inherent powers to make orders for the ends of justice to be met. Under **O.41 r.4 CPR,**

an order for a temporary injunction may be discharged, or varied or set aside by court on an application made by any person dissatisfied with the order. In **Godfrey Sekitoleko & 4 Ors Vs Seezi Mutabazi (2001- 2005), HCB Vol.3 80,** court held that

*"The court has a duty to protect the interests of parties pending the disposal of the substantive suit."*

- [20] It therefore follows from the foregoing, in the interest of justice, this court ought to protect the interests of the parties i.e, both the Applicants and the Respondent. - [21] In the premises, this application is allowed and the injunction order granted vide M**isc. Application No.102 of 2021** is **varied and set aside as a way to maintain the status quo on the suit land** until the main suit is determined. The main suit shall immediately be fixed for expeditious hearing. - [21] Costs of this application to abide the outcome of the main suit.

Signed, dated and delivered at Hoima this **27th** day of **January, 2023.**

**……………………………………. Byaruhanga Jesse Rugyema JUDGE.**