[2004] UGHC 97

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT AT KAMPALA

## **MISCELLANEOUS APPLICATION No. 0189 of 2004**

#### ARISING FROM HCCS No. 0071 of 2004

...................................... J. B. WALUSIMBI.............

Versus

## ABUNDANT LIFE FAITH CHURCH OF UGANDA....... RESPONDENT

#### **RULING**

Before the Hon. Judge J. Sebutinde

The Applicant is the registered proprietor of the land known as Plots 2845 and 2846, Block 265 Kyadondo situated at Seguku Hill in Wakiso District. The Respondent is a company limited by guarantee, incorporated in Uganda. The Applicant filed this application under Order 37 Rules 1, 2 and 9 and Order 46 Rule 3 of the Civil Procedure Rules (SI No. 65-3), for orders that a temporary injunction be issued restraining the Respondent, its servants, agents or assigns from constructing or trespassing on Plot 2846 pending the disposal of HCCS No. 0071 of 2004, and for costs. The application is by way of Chamber Summons and is supported by the affidavit of J. B. Walusimbi dated 11/03/04 and his affidavit in rejoinder dated 6/05/04. The Reverend Dr. Handel Leslie swore an affidavit in reply dated 7/05/04 while Andrew Kibaya swore an affidavit in sur-rejoinder on the 13/05/04 on behalf of the Respondent who opposed the application. The background to the application is as follows.

On 30^th November 1990 the Applicant sold or leased to the Respondent a parcel of land measuring approximately 4 hectares (10 acres) located on Seguku Hill, under a written agreement. At the time of sale, the land was not yet surveyed or divided into plots but the parties demarcated the boundaries thereof using concrete pillars. In November 1991 the land was subdivided into various plots including Plot 2845 and Plot 2846 and the respective title deeds issued in the names of the Applicant. Subsequently, the Respondent erected several buildings or improvements on Plot 2845, parts of which extended into Plot 2846. To date the Respondents interest in the land has not been formally registered although construction is on going.

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In 2003 a dispute arose between the parties over a particular building that the Respondent was erecting on Plot 2845, part of which extended into Plot 2846. The Applicant claimed on the one hand, that while he leased to the Respondent only the land comprised in Plot 2845, the latter had committed a trespass by encroaching on Plot 2846 and erecting part of the said building thereon without the Applicant's approval. The Respondent on the other hand, denied the alleged trespass or encroachment and maintained that the building in question was properly constructed on the land originally sold to the Respondent by the Applicant. The Respondent further alleged that after the sale of the said parcel of land in 1991, the Applicant fraudulently altered the boundaries as originally agreed upon by the parties and instead, caused the land to be subdivided into Plots 2845 and 2846 which are of a much smaller acreage than was sold to the Respondent. The Applicant filed HCCS No. 0071 of 2004 against the Respondent seeking inter alia damages for trespass, orders for vacant possession of Plot 2846 and a permanent injunction against the Respondent from encroaching on the said plot.

Pending the determination of HCCS No. 0071 of 2004 the Applicant filed this application for a temporary injunction restraining the Respondent and its agents, servants or assigns from continuing with the construction of a building on Plot 2846 until the main suit has been disposed of. The grounds for the application are-

- That the Applicant has filed HCCS No. 0071 of 2004 with a $(i)$ probability of success; - That if a temporary injunction is not granted the Judgment in the main $(ii)$ suit will be rendered nugatory, and - That the successful Plaintiff is likely to suffer irreparable damage that (iii) cannot be compensated or atoned for in damages.

The Respondent opposed the application on the grounds that it does not satisfy or meet the requisite conditions for the grant of a temporary injunction under 0rder 37 Rules 1 and 2 of the Civil Procedure Rules. The relevant provisions of Order 37 rules 1 and 2 of the Civil Procedure **Rules** under which this application was filed provide as follows:-

# "Order 37- Cases in which a temporary injunction may be granted.

*Where in any suit it is proved by affidavit or otherwise:* 1.

- that any property in dispute in a suit is in danger of being $(a)$ wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree; or - that the Defendant threatens or intends to remove or dispose of $(b)$ *his property with a view to defrauding his creditors,*

the court may by order, grant a temporary injunction to restrain such act or make such order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit pending the disposal of the suit or until further orders.

#### Injunction to restrain repetition or continuance of breach. $2.$

- In any suit for restraining the Defendant from continuing a breach of $(1)$ contract or other injury of any kind, whether compensation is claimed in the suit or not, the Plaintiff may, at any time after commencement of the suit, and either before or after judgment, apply to the court for a temporary injunction to restrain the Defendant from committing the breach of contract or injury complained of, or any injury of a like kind arising out of the same contract or relating to the same property or right. - The court may by order grant such injunction on such terms as to an $(2)$ inquiry as to the damages, the duration of the injunction, keeping an account, giving security or otherwise, as the court thinks fit..."

The purpose of a temporary injunction under the above provisions is to preserve matters in status quo until the dispute in the main suit between the parties has been investigated and finally disposed of. Court will not grant a temporary injunction as a matter of course but rather as an exercise of discretion, which discretion must be exercised judicially. Consequently, courts have developed criteria to guide themselves in the exercise of that discretion. (See Noormohammed Janmohammed v. Kassamali Virji Madhani (1953) 20 EACA 8; E. L. T. Kiyimba-Kaggwa v. Haji Abdu Nasser Katende [1985] HCB 43; Geila v. Cassman Brown and Co. Ltd. [1973] EA 358; EA Industries v. Trustfoods [1972] EA 420 and Devani v. Bhadresa and another [1972] EA 22.) In order for the application to succeed, the court must be satisfied on a balance of probabilities that the following conditions exist, namely-

- That the Applicant has a *prima facie* suit pending with a probability of $(i)$ success. - That if matters are not preserved in status quo, the Judgment in the $(ii)$ main suit will be rendered nugatory or ineffectual; - That the Applicant if successful, might otherwise suffer irreparable $(iii)$ injury that would not adequately be compensated by an award of damages; and - That where the court is in doubt as to the Applicant's right or the $(iv)$ alleged violation of that right, the court should take into account the balance of convenience to both parties and decide the application in favour of the party that would suffer the greater inconvenience.

My task is to examine the pleadings and arguments on both sides with a view to determining whether or not the application meets the above criteria and conditions.

Regarding the first condition, there's no doubt that the Mr. J. B. Walusimbi filed HCCS No. 0071 of 2004 against the Respondent as aforementioned and that the said suit is pending disposal in the High Court. The Applicant must satisfy court that there is a substantial or serious question to be investigated in that suit and that on the facts before court, it is probable (not merely possible) that the action will succeed. Mr. J. B. Walusimbi the Applicant avers in his pleadings that he is the registered proprietor of Plot 2846 Block 265 Kyadondo, a fact the Respondent does not dispute. The Applicant further avers that the Respondent has erected a multi-storeyed building on part of the said plot without his consent. He has attached photographs and a surveyor's report (Annex J) showing that the Respondent has actually encroached upon 0.182 hectares (0.45 acres) into Plot 2846. A second surveyor's report (Annex A) filed by the Respondent shows that part of the Respondent's building is indeed built on Plot 2846. However, the Respondent maintains that it constructed its building on the ten acres of land originally purchased from the Applicant and that according to the surveyors' reports (Annex A and Annex J), Plot 2845 which the Applicant allegedly sold to the Respondent measures only 4.00 hectares (9.88 acres). The Respondent argues that of necessity it encroached on Plot 2846 only to the extent of 0.182 hectares (0.45 acres) in order to access the 10 acres that it originally purchased. I must hasten to add here that since neither party tendered in evidence the original agreement of sale or lease I am not able to determine the exact acreage or boundaries of the land that the Respondent purchased from the Applicant. The problem is further complicated by the fact that since the time of sale, the Respondent has not registered its interest in the suit property.

In reality the issue for determination in HCCS No. 0071 of 2004 will be who is entitled to the strip of land measuring 0.182 hectares (0.45 acres) on Plot 2846 on which part of the disputed building is situated. On the face of it the Applicant who is the registered proprietor of the disputed land seems to have an upper hand over Respondent who appears at best to have an equitable interest in the suit property. In my view, the Applicant has a prima facie case in HCCS No. 0071 of 2004 with a probability of success, based on the documentation on the record so far.

Regarding the need to preserve matters in status quo pending the determination of HCCS No. 0071 of 2004, Mr. Madrama, learned Counsel for the Applicant submitted that Mr. Walusimbi being the registered proprietor of Plot 2846, would like to use his land for purposes other than a multi-storeyed building and that the Respondent's continued construction of a building on this land denies the Applicant the right to use his land as he would wish. Mr. Mwesigwa, learned Counsel for the Respondent argued however, that the status quo is that the Respondent's building is already standing on the disputed land and that even if the Respondent were allowed to complete construction, it would not change that status quo. As stated earlier, the rationale behind preserving matters in status quo is that if the Applicant's action succeeds, the Respondent (or Defendant) will have been restrained in the meantime, from dealing with the property or the subject matter in such a manner as to render the Judgment ineffectual or nugatory. (See Devani v. Bhadresa and another [1972] EA 22, 260.) Supposing the Respondent in this case continued carrying out construction on the disputed building, how would that ultimately affect a Judgment in favour of the Applicant? At the very worst, the Applicant would perhaps suffer the inconvenience of having to demolish the building but even then, not at his expense. The disputed land on which the building stands would remain the Applicant's. I find therefore that the disputed land is not in immediate danger of being alienated; wasted or damaged in such a manner as to render a Judgment in favour of the Applicant nugatory or of no effect. On that account the Applicant has not proved the second condition.

Regarding the third condition, Mr. Madrama argued that if the Respondent is permitted to continue with the construction of the controversial building, the Applicant will suffer the inconvenience of not being able to use his land for his own purpose, and ultimately of having to demolish the building, should his action succeed. Madrama maintained that this would amount to irreparable damage that could not be compensated by an award of damages. Mr. Mwesigwa disagreed and argued that mere inconvenience does not amount to "irreparable damage" and that Applicant's demolition costs could be compensated for in damages. It is the very first principle of injunction law that prima facie, the court will not grant an injunction to restrain an actionable wrong for which damages are the proper remedy. The Applicant must show that an injunction pending the hearing of the head suit is necessary "in order to protect him against irreparable injury which would not adequately be compensated by an award of damages". Mere inconvenience is not enough. (See Halsbury's laws of England, 3^rd Edition Volume 21 at P. 352, paragraph 739; Geila v. Cassman Brown and Co. Ltd. [1973] EA 358, 360 and Rwenzori Tea Company Ltd v. Kelsall [1957] ULR 204, 206.) Under the law irreparable injury does not mean injury that is impossible to repair but rather, substantial injury that an award of damages could not adequately or sufficiently compensate. (See Kiyimba-Kaggwa v. N. Katende [1985] HCB 43, 44.) In the present case, the Applicant has clearly not shown the irreparable injury he will suffer if the Respondent is permitted to continue with construction. It is true that the Applicant will suffer much inconvenience in as far as he cannot immediately use the disputed land for the purposes that he would like to, and may even suffer the inconvenience of having to demolish the Respondent's building, should his action succeed. These are however, wrongs that can be adequately and sufficiently compensated by an award of damages. I find therefore that the Applicant has not proved the third condition.

In the premises, I think that it is superfluous for me to consider balance of convenience between the parties. All in all, I find that the Applicant has failed to prove on a balance of probabilities that conditions do exist for the grant of a temporary injunction pending the determination of HCCS No. 0071 of 2004. I therefore dismiss this application. The costs of this application will abide the outcome of the head suit.

# J. Sebutinde Judge $21/05/04$

# Delivered at 11.00 a.m. before: Mwesigwa: Counsel for the Respondent. David Sempala: Counsel for the Applicant.

### Authorities referred to:

- 1. Order 37 Rules 1, 2 and 9 and Order 46 Rule 3 of the Civil Procedure Rules (SI No. 65-3) - Noormohammed Janmohammed v. Kassamali Virji Madhani (1953) 20 EACA 8 E. L. T. Kiyimba-Kaggwa v. Haji Abdu Nasser Katende [1985] HCB 43 - 4. Geila v. Cassman Brown and Co. Ltd. [1973] EA 358 - 5. EA Industries v. Trustfoods [1972] EA 420 - Devani v. Bhadresa and another [1972] EA 22.) Halsbury's laws of England, 3^rd Edition Volume 21 at P. 352, paragraph 739; - 8. Rwenzori Tea Company Ltd v. Kelsall [1957] ULR 204, 206.