[1991] UGHC 42

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

the Ham. Mr. Justice A. R. Solicade

## HIGH COURT CIVIL SUIT NO. 117/91

HAJATI ZIRIBAGWA ) :::::::::::::::: 'FLAINTIFFS/RESPONDENTS $1.$ $\overline{2}$ . AIDA NANZIRI $\mathcal{L}$

## VERSUS

YOKOBO NTALE MAYANJA ::::::::::::::::::: DEFENDAME/APPLICANT. BEFCRE: The Honourable Mrs. Ag. Justice M. Kireju.

it is not up to the first

## RULING

This is an application brought by the defendant/applicant under Order 15 rule 5, Order 37 rules 4 and 9 of the Civil Procedure Rules for an order that the plaintifferespondents suit be dismissed for want of prosecution and in the alternative that the temporary injuction granted in this suit on the 22nd March, 1991 by Justice Karokora to the plaintiff /respondents be discharged/ set aside.

The application is by way of Notice of Motion supported by the affidavit of Yakobo Ntate Mayanja, the applicant/defendant dated $28/10/91$ in which he deponed that he was the registered proprietor of land comprised in Leasehold Register Vol.1024 Folio 3 granted to him by Kampala City Council_x (KCC) in 1978. That by reason of temporary injuction granted to the respondents he had been forced to halt the development of the said plot which has caused and continues to cause him great less and damage and that he verily believed that since the granting of the temporary injuction the respondents have lost $\mathbf{t}_{\mathcal{B},\mathcal{B}} \mathbf{t}_{\mathcal{B}} \mathbf{t}_{\mathcal{B}} \mathbf{t}_{\mathcal{B}} \mathbf{t}_{\mathcal{B}} \mathbf{t}_{\mathcal{B}} \mathbf{t}_{\mathcal{B}} \mathbf{t}_{\mathcal{B}} \mathbf{t}_{\mathcal{B}} \mathbf{t}_{\mathcal{B}} \mathbf{t}_{\mathcal{B}} \mathbf{t}_{\mathcal{B}} \mathbf{t}_{\mathcal{B}} \mathbf{t}_{\mathcal{B}} \mathbf{t}_{\mathcal{B}} \mathbf{t}_{\mathcal{B}} \mathbf{t}_{\mathcal{B}} \mathbf{t}_{\mathcal{$ $\mathbf{r}_{\mathcal{A}^{\mathbf{c}}}\mathbf{r}_{\mathcal{A}^{\mathbf{c}}}\mathbf{r}_{\mathcal{A}}$ interest in the suit.

$.../2$

Mr. Kasnle, counsel for the respondents'"tn his affidavit 1' reply dated J/12/91 deponed that Ke have" had" sufficient cause for failure to fix the case for hearing, as" ffom~the date of receipt 'of the defence :to the .suijt:.,- : J: wil/1 quqte para. ⁵ & 7, of his affidavit which are meant to justify his firms' delay in fixing the case for hearing\*! ² ? ^>'

. nJ>That my firm which has a busy practice has this year had t^b .practising lawyers only, myself and Mr. Mos.es Kazibwe and from-Ab6u.t... Eeb.ruary, 1991 : • ^k when the suit was filed up to July, ¹⁹⁹¹ each , one of us had a court or lecture (in case of Mr. •v,-.-?. ^t Kazibwe who is a part-time lecturere at Law ' De've'lo^ment Centre) engagement which 'had been- •)i; .fixed ^rprior to the receipt of defence in this suit r/ and so it was not possible to fix ^a hearing date for the case on any one of these dates during this ■"Veriod.

> nil- THAT another member of the firm Mr. Kawanga", had taken up a Ministerial Post and is not yet . .. practising,

"⁵ THAT the period of 15th July, 1991 up to ■15th September, 1991 was court vacation and so the case could not be fixed or heard' during that period.

n⁶ THAT the period of October: 1£91i was all fully cohered with prior court engagements on both my and Mr. Kazibwers part flx-\*d in January and February, 1991\*

7\* THAT as a matter cf fact I personally know- lg- ' and I came to know by . my calling-at. the Civil ^r ^C >urt Registry of High Court **Kampala,,** that b^.the end of September, 1991 no cases cou^d be fixed for . f 199^ because the diary for that year .s^~ -^f ^fir

already full with each day having a maximum **of \$ cases** and there was no diary for ¹⁹⁹² at the Registry until about November, 199^ "

- ³ -

t

The background to these proceedings are that, on 7/2/91 the respondents filed Civil Suit No. 117 of ¹⁹⁹¹ against the applicant/ defendant in which they sought among other reliefs an order cancelling ' the certificate of title namely Leasehold Register No. ?74&8; volume -1024 Folio ^J on the ground that it was obtained by frand. The" respondents also made a chamber application for a temporaryvin^uctioru against the applicant restraining him from evictihg or causing'any other, injury to the respondents with regard to their customary"tenancy'holdings (bibanja). The temporary induction was grante'd: on. 22/3/91 by Justi-c'e Kajc-okora and it was to last until fifial'determination of the suit hr' • \*' until any other order issued from^J 'the Court^e " The- appiicAni/ f? ' ' defendant filed his written statement of defende-J8n 4/3/91.r '

Mr. Serwan^a learned counsel for the applicant in support of the first ground of application submitted that the provisions of Order ¹⁵ rule 5'are clear, that if ^a suit is not fixed within ⁸ weeks-'from - the date of the delivery of the defence or 10 weeks from the date of the delivery of the counterclaim, then the defendant may either-'set the suit down for hearing or apply to court"⁵ to dismiss the suit for Mint of prosecution. He con tended^that he had opted to apply for the-'dismissal of the suit' -'rid referred me to the casg of Fitzjpatrick Vs. Bather & Co. Ltd /19&7/ 2 ALL AR 657 ^r

**...14**

where it was held that where there had been such inordinate delay without excuse that the action would be dismissed for want of prosecution. He also referred me to page 658 where Lord Denning said that it was the duty of the plaintiff's adviser to get on with the case, that public policy demands that the business of the courts should be conducted with expendition. $He$ submitted that public policy demands that once ptigation $LS$ instituted should be persued and ended expenditiously. That in the cited case counsel for the respondent argued that since the applicant could have set down the case for hearing, therefore the remedy for want of prosecution was not open to him. That he is referred to contention was dismissed on the ground that if the respondent compared to a sleeping dog decided to sit on his rights, the applicant had no duty to wake a sleeping dog. Mr. Serwanma submitted that once the infrigement to the rule is proved the defendant is entitled to succeed because public policy demands that rules of 'court must be obeyed.

Learned counsel for the applicant stated that his client applied for a lease from Kamapala City Council in 1978 for a < city plot, and the lease was granted to him for a plot measuring 100ft But that before the applicant could develop his plot he was forced into exile and did not return until 1987 when he started developing the plot and thats when the trouble starteed. Counsel submitted that this is over a period of 13 years since the lease was granted and therefore the action of the respondents appear to be time barred as no action was filed until 7/2/91.

$110 - 115$

$...5$

$-4 =$

$\alpha_{\rm max} \ll 1$

He further submitted that the affidavit in reply of the **respondents-^uasel had. aditan^d sufficient fiause** the suit has not been fixed for hearing for a period exceeding-³⁹ weeks. That it is apparent from the face of the record that since the respondent got the temporary induction to restrain the applicant/defendant from developing the suit property, he had taken no steps whatsoeve\* to persue the matter. He disagreed ?• a with the grounds advanced by counsel for the respondent that the firm diary could not accommodate this case and that other . \* members of the firm are busy teaching. He **submitted** that these were not sufficient considerations and- he ask^d **-vrbether oo^ns-e-l** for the respondent had not fixed any other case for hearing since he pot the temporary induction. He further- .submitted khe respondent abondoned his main claim because **it** was frivolous and vexatious and discloses no cause **of** action. That the respondents claim to be customary tenants of the suit property^ with houses, gardens plants thereon, he contended that it was impossible to envisage how an aerate of'100ft^e byu50ftv canaccommodate the respondentbibanja. " That both respondents swore the same identica'l'affidavit's' and: it was diffig-'lt to see how **two** people can ' swear ihdentical affidavits, he submmitted that this went to show that the calim was not gefuine. He went **on** to submit that the lease was obtained fr\$m **Kampala** City Council as the controlling authority• **but that' KCC** was not joined as aparty to the suit, he submitted idiat the pleadings did n<-t disclose a cause of action against the ajjlicant. He went further and submitted that ^a certificate of title was conclusive evidence to ownership and that Vie delay in fixing

- ⁵ -

this case has occasioned loss and damage to the applicant\*

The applicantrS'counsel then proceeded⁷\* to the **alternative \*'** relief,, that this was a proper case for the court to discharge the induction granted in favour of the respondents\* He submitted that the continuance of that induction occassions **injustice** and hardships to the applicant and that ^Oⁿ balance **of** convenience it is fit and proper to set aside the induction. He submitted that by the time of granting the induction the applica-nt had entered into construction contracts for the construction of a stracture next to his already existing Terrace Hotel, That the ground had already been leveled and the area had been fenced with barbed wires and pillars had been erected. That since the grant ofthe induction work had stopped^ but that because the ground had been leveled,the water from the upper terrace has accumulated sort of creating an artificial lake, and that water is seeking through the already hotel, threatening that structure. That secondly.!all 'the../scontracts signed by the applicant have been breached and the.-; applicant stands condemned in damages\* He submitted that on balance ef the above said inconvenience and, that in view of the fact that the respondent's claim -to be customery tenants and their remedy is. only Compesation for their developments on the suit property, the bejance tend to favour the lifting of the induction. He also submitted that since the respondents are guilty ef inordinate delay, the induction should be lifted, that those who come **to** equity must come with clean hands.

He went further and submitted thdt the induction was granted in error and should therefore be lifted. He contended that

.../7

it was trite law that an injuction should not be granted unless the applicant shows to court by an affidavit that a suit has got a probabble abonce of success. He submitted that the present onse had no probable chance of success and referred to me the case of Nitin Jayant Madhvani Vs. East African Holdings Ltd and 5 others Civil Suit No. 1181 of 1988. for the application of the law when granting · injuction and also for the authority that a party aggrieved by an injuction can apply to the same court for it to be lifted. He also referred me to the case of Matovu & Others Vs. Sseviri & Another (1979) HCB 174 for the proposition that where a registered interest is registered by fraud, that interest can be impeached, but that in the case of Sserviri both the Uganda Land Commission and the same the case of Sserviri both the Uganda Land Commission and the same that the case of Sserviri both the Uganda Land Commission and the same that the case of Ss remistered properietor were sued. In this case he submitted that only the registered proprietor was sued and that he did not see how the plaintif green respondents can maintain this action. $. +1$

He further disputed that they cannot be two bibanja holders on such small piece of land with houses and gardens. He centended that even if they were two bibanja holders then they should have been two different suits. He referred me to the case of N. Kaso Vs. Attorney General Civil Suit No. 738 84 /1975/ 194 He further contended that the respondents cannot derive any interest as customary tenants because the suit property is in an urban area, he referred me to section $24(1)(a)$ of Public Land Act $13/69$ , that the section prohibits customary tenure in urban area, the reason being that urban archis subject to planning in accordance with Town Planning Act. He also referred

to section 37 of Public Lands Act which provides that before land reverts to a controlling authority, the occupier is paid compesation by the authority. He therefore submitted that the occupier of the land in urban area is pres med to have acquired compesation in accordance with

$\mathbb{S}(\mathbb{M} \cap \mathbb{M})$

$\cdots/9$

$68.38.8$

eection 37 and that those who occupy later are squarters. And and the that those who claim compesation; can only get it from the it parts it Controlling Authority. He submitted that because of what out had any he has referred to-above the respondents are not entitled to $\alpha m \rightarrow \pi$ any protection. He contended that if they want to lodge any claim it should be against KCC. He therefore prayed that $-100$ the temperary injuction should be set aside.

Mr. Kasule, learned counsel for the respondents submitted that failure to fix a hearing date was with reasonable execuse and prayed the court to accept that execuse Executive Condly 计划分组件 法一进 that this was not a proper case for varying the temporary $$1.10$ injuction granted to the respondents on 22/3/91.

Learned counsel submitted that in answer to the first ground advanced by the applicant his grounds were contained in para: $3,4,5,6,7,$ & 8 of his affidavit. The said paragraphs are already quoted hereinbefore except for the 8th para. where he deponed that he indicated to Mr. Serwanga in Nevember, 1991 that he was now ready to have the case fixed for hearing. His main contention was that the court calender was concested and that by the time the suit was filed in Febuary, the calender of his firm and cou. t did not have a date when the case could be fixed up to October, 1991. He went on to say that there were a few judges and only 8 could be fixed per day and that $\cdots \rightarrow \tau_{\rm c} \quad \tau_{\rm c} \quad \rightarrow \tau_{\rm c} \rightarrow \tau_{\rm c}$

$\mathcal{L} \leftarrow \mathcal{L}_{\mathcal{F},\mathcal{G}} \qquad \mathcal{L} \leftarrow \mathcal{B} \; .$

$\mathcal{I} \oplus \cdots$

from $15/8/91$ to $15/8/91$ it was court vacation. And that directober, no cases could be fixed because there was no

diary for 1992. That in his firm, they had pre-court eng gements which they had taken before March and February 1991. That the court dairy was received in November around 13th, and this application was in court. Counsel invited court to ald witholiob saw accept the roasons advanced by him for failing to obtain a $1.9329$ hearing date. He went on to say that the counsel for the applicant must have failed to fix the case under Order 15 rule 5 for the same reason that the court diary was congested.

Referring to the case cited by the applicant namely \* J # FitzPatric Vs. Batger & Co. Ltd he said that it can be distiguished $\cdot \cdot \cdot \cdot$ $\sim$ from the present case in that the delay in this case was with excuse. That in the instant case the case was filed on $\mathcal{F}_{\mathcal{A}}(x)=-\mathcal{H}^2$ $\mathcal{A}^{(1)}$ $7/2/91$ and it is not even a year old, he submitted that this $1.03$ m $\mathcal{L}_{\mathcal{L}}$ cannot be taken to be inordinate delay. He contended that $\mathcal{M}^{\frac{1}{2}}\otimes\mathcal{M}^{\frac{1}{2}}\otimes\cdots\otimes\mathcal{M}^{\frac{1}{2}}$ $\mathbb{R}^n \to \mathbb{R}^n$ $\mathcal{L}^{\mathcal{L}}$ $-35$ $\mathbf{I}$ $\gamma$ $\alpha$ in the cited case the plaintiff was assured $\mathop{\rm cf}\nolimits$ some remedy which is not the case in this case. Counsel invited me to have the case fixed for hearing. He referred me to the case of Victory Construction Co. Vs. A. W Duggal /1962/ EA 697 and invited me to prefer this case to one of FitzPatric on the ground that we share more or less the same condition with Kenya. $-1$ He referred me to page 697 para. F which states as follows:-" (ii) Where parties to an action are called

$\begin{smallmatrix} \mathbb{R}^2 \\ \mathbb{R}^2 \\ \mathbb{R}^2 \end{smallmatrix} \rightarrow \begin{smallmatrix} \mathbb{R}^2 \\ \mathbb{R}^2 \end{smallmatrix} \rightarrow \mathbb{R}^2 \rightarrow \mathbb{R}$

$\mathcal{M} = \mathcal{M}(\mathcal{M}) \times \mathcal{M}(\mathcal{M})$ upon to show cause why an action should $\mathcal{F} = \mathcal{A} \mathcal{F} =$ not be dismissed for want of prosecution,

$\cdots$ $\sqrt{10}$

$-9 -$

the court should be slow to make an order if satisfied that the suit can be heard without further . delay, that the defendant will suffer no hardship and that , there has been no flagrant and culpable inactivity on the part of the plaintiff"

The counsel invited me to have the case fixed for hearing as was decided in the cited case.

Counsel for the respondents submitted that the present case can be distiguished from FitzPatrick in that the respondent's arguement is not that the case should not be dismissed because the defendant did not take out summens to dismiss the suit earlier. He contended that their arguement is that the suit could not be fixed and therefore the applicant's counsel wrongly referred to para. B & C on page 659 of that case as it is irrelevant.

$\mathcal{C}f \sim f$ On the second ground advanced by the applicant that the temporary injuction should be set aside, counsel submitted that he did not think that the court could set aside the injuction on the same grounds which were heard and rejected by the same eaurt when granting the injuction. He contended that the applicant's remedy would be to appeal against the order granting the injuction. He further submitted that this did not mean that in an appropriate case an application could not be made to vary the injuction. That it was up to the applicant to show that circumstances have changed necessisting the varying of the injuction. That the applicant can not use the same grounds advanced on 13/3/91 when he was opposing the grant of injuction, namely;

$.../11$

$-10-$ 1. Whether the suit was vexatious.

2. Whether the case had a probable chance of success,

J. Whether the defendant was to suffer substantial damage which cannot be compesated.

Referring to the case of Nitin J. Mdhvani cited by the applicant he submitted that it was distiguishable from this case in that in the cited case, the injuction was for J months where the party had to reapply for the extention which is n^t the position in the present case. He submitted that the status quo should be preserved until the suit is determined because it constitutes the plaintiffr^s case against the defendant. That if the houses *• • . • . ■> '■■■■* are demolished boundaries tampered with, this would amount **to** the destruction of the evidence and therefore weakening the defendants\* case.

Counsel for the respondent submitted that the applicant counsel was not fair when referring to the background of » this cas.e. He submitted that the respondent s case is that the applicant well knowing that the respondents were customary tenants on the suit property, proceeded to get himself registered js a leaseholder by falsely representing that the land was free of customary **tenants** while well knowing that there were customary tenants. He submitted that this constituted fraud and it is the basis of the suit.

Referring to Sseviri'^s case he submitted that it was not the law that the authority granting the lease must be sued, that the plaintiffs were free to prove dftfanfl against the applicants.

He further contended that counsel for the applicant did not mention that when the respondents knew that the defendant was overriding their customary interest, they sued the applicant in Resistance Council (i\C) courts in 1989 where they were successful from RC. I to III. That on 24/1/91 something strange happened in the Chief Magistrate court Mengo, at that time the respondents weite being represented by Mr. Lwan^a. By of counsels ie. Mr.. Serwanga and Mr. Lwansa the judgement of RC was set aside, on the ground that they had no jurisdiction to try the case. Counsel for the respondents submitted that this was wrong because the RGs had jurisdiction as the respondents were claiming that they were customary tenants. And that since the case was by consent no appeal could be allowed and that is why he filed this case in the High Court. That this goes to show that the respondents have been vigorCus in prosecuting their,claim.against the applicant.

Counsel for the respondents submitted that since 1987 this matter has been contested between the applicant and the respondents. That well knowing that the matter was being contested .the applicant'purports to go on developing ard entering into contracts according to what was submitted by counsel for the applicant. That the applicant/defendant should await the decision of the court before he undertakes these obligations. . '. A . - That the applicant was on notice and therefore'he cannot complain, that the same arguement was dealt with by Justice Karokbra. He further submitted that there is no evidence to support the alleged

- ¹² -

contracts, the damage of the plot by water on which the court could act.

$\cdots$

Referring to section 24 of Public Lands Act he submitted $\mathcal{M}^{(1)}$ that it was wrongly brought in as it goes to the merit of the ease, that section 24(1) deals with land vested in Uganda Land um alman Commission which is different from land vested in KCC. That ~\_ at 17 and contains the the section cannot be read to mean that there is no customary tenure injan urban area, he therefore submitted that the $\mathcal{A} = \mathcal{A}$ $4 + 1$

section was irrelevant.

$\ldots 7 \sim 12\%$ $\mathcal{L}^{\text{max}}(x) = \mathcal{L}^{\text{max}}(x)$ $\mathcal{L}^{\text{max}}_{\text{max}} = \mathcal{L}^{\text{max}}_{\text{max}} = \mathcal{L}^{\text{max}}_{\text{max}}$ With reference to section 37 of the Public Lands Act he 计功能 中国 $\epsilon$ submitted that it is mandotory that compesation be paid and that $\mathcal{L}_{\mathcal{A}}$ $\mathbb{R}^2 = \mathbb{R}^2 \times \mathbb{R}^2$ this goes to support the case of the respondents. That if the 网络小脑 生产 医电视系统 电调整 计 $\tau_{\frac{1}{2}}\circ\cdots$ rights of the respondents were to be extinguished: they have to be compesated first, that they were denied this right by the $\sim$ $100$ $\pi$ i. applicant. He finally submitted that the application should mbe dismissed, the injuction be upheld and that the case be fixed for hearing and he also prayed for costs. $\ddagger$ Court

Mr. Serwanga in reply invited me to disregard the case quoted by the respondents counsel, Victoria Construction Co. Vs. Duggal. on the ground that it referred to Order 15 rule 6 and not ruled5th.t.: $\mathbf{r} \preceq \cdots$ $\mathcal{A} = \mathcal{A} \mathcal{A}$ $\frac{d}{dt} \left( \frac{d}{dt} \right)^2 = \frac{d}{dt} \left( \frac{d}{dt} \right)^2 = \frac{d}{dt} \left( \frac{d}{dt} \right)^2 = \frac{d}{dt} \left( \frac{d}{dt} \right)^2 = \frac{d}{dt} \left( \frac{d}{dt} \right)^2 = \frac{d}{dt} \left( \frac{d}{dt} \right)^2 = \frac{d}{dt} \left( \frac{d}{dt} \right)^2 = \frac{d}{dt} \left( \frac{d}{dt} \right)^2 = \frac{d}{dt} \left( \frac{d}{dt} \right)^2 = \frac{d}{dt} \left( \frac{d}{dt} \right)^2 =$

$\sim \mathcal{P}_{\infty}$

$\hat{Y} \hat{G}_{\alpha}$

$\ldots, \tau_{i-1}$ On the point that the applicant should have argued his grounds for setting aside the injuction in a way of appeal, $\alpha_1\alpha_2\cdots\alpha_n\alpha_n$ to counsel argued that court had power under Order 37 rule 4/vary the injuction on application by any party dissatisfied. $On.$ section 37 of Public Lands Act he submitted that it was the $\sqrt{1}$ $... / 4$

controlling authority which must pay compesation to the right of occupier and not the developer.

He retaliated his prayer that the case be dismissed for want of prosecution and that the injuction be varied and costs of the application.

After listening to the submissions by both counsels and after the perusal of the affidavits and other documents filed in support of the application, I found that there are two respondent issues to be decided. First whether the '; case should be dismissed for want of prosecution and secondly whether the temporary injuction should be set aside or maintained.

Order 15 rule 5 is as follows;-

"If the plaintiff does not within eight weeks from the delivery of any defence, or, where a counterclaim is pleaded then within ten weeks from the delivery thereof, set down the suit for hearing, then the defendant may either set down the suit for hearing or apply to the court to dismiss the suit for want of prosecution, the court may order the suit to be dismissed accordingly or may make such other order, and on such terms, as to the court may seem just"

It is not disputed that since the filing of a written statement of defence on $4/3/91$ and since the grant of a temporary injuction on 22/3/91, no further action had been taken in a way of fixing the case for hearing. By the time this application was filed on 29/10/91, 31 weeks had lapsed since the filing of the defence and counter-claim. The respondent should have

$.../15.$

$-14 -$

therefore fixed the suit within ¹⁰ weeks from the date of filing the defence and counter claim. This therefore nwans that the respondents were ²¹ weeks rut of time; The next question now is whether the respondents had reasonable excuse for failing to fix the case\* After perus^a^f the affidavit and the submission by Mr. Kasule O this issue, I find his explanation believable. I take judicial notice that the fixing of caaeS has not been very easy in the past\* So when he .says that the court dairy was congested from March, 1991 when he was in a position to fix the case I believe him\* The excuse that his partners are busy elsewhere is not good enough I am of the opinion that firms of advocates should bite what they can chew. In this case the firm was. aware of.its shortage of lawyers in the firm but it still ^T the case, they could have advised the respondents to engage j *ⁱ • - • • '* another advocate. However, I do not think that, this omission *. t.* by the lawyers should be shouldered by the respondents. . From \_\_\_\_\_\_\_\_\_\_\_\_ . the submission of Mr. Kasule, the respondents have been vigilant in persuing their case, from RC. courts to the Chief Magistrate court up to this court.

- ¹⁵ -

The case of Fitz Patrick *Vs\** Batger referred to by both counsels can be distigushed from this case, in that there has not been an inordinate delay namely a delay of more than;^.years as was the case in Fitz-Patric^cfise, where it was held that, it was almost impossible to get ^a fair trial after ^a long time of ⁶ years after the accident had occurred. That case can also be distiguished from the\* Instant oner in that the " .y.^16

defendants in that case had already admitted liability and what remained was the determination of compesation to be paid. Whereas in this present case nothing has been agreed upon as yet.

However, I do not agree with submission made by counsel for the applicant in this case that once the infrigement of the rule is proved, that the defendant is entitled to succeed because public policy demands that rules of court must be obeyed. It is true that the rules of court must be obeyed, but in the face of a good explanation or excuse the rules should be able to bend a little and accommodate, the particular situation.

$\mathbf{I}$ agree with counsel for the applicant that he was free to either fix the suit himself, especially in view of the fact that he had a counterclaim or he could apply to dismiss the actical and he chose the latter and he cannot be penalised because the law avails him this option.

The case of Victory Construction Co. Vs. IA. N. Dungal was also referred to me. Although the case was mainly on Order 15 rule 6, it also referred to rule 5 of the same order. It was held that even where a plaintiff has taken no step of any kind (to have the case heard) a court may still decide not to dismiss the action if in its opinion, the interests of justice so dictate. This goes to support the respondent's case.

After considering all the above said facts and law, I am of opinion that the circumstances in this case do not justify an order of dismissal. The delay was not excessive in the circumstance and it was not inordinate to justify dismissal $... M7$ $f$

for lack of prosportion. This ground of application must therefore fail.

I shall new turn to the alternative prayer that the temporary injuction be discharged/set aside. Order $37$

rule 4 provide as follows;-

$\mathbb{R}^3 \to \mathbb{R}$

$\ldots$ $\ldots$ $\ldots$

$\cdot$ $\cdot$

$\mathbb{C}^{\mathbb{C}} \to \mathbb{C}^{\mathbb{C}}$

$\mathbf{q} \in \mathbb{R}^{n \times n}$

$\mathcal{L} \mathcal{L} = \mathcal{L}$

$\sigma_{\rm{max}}$

" Any order for an injuction may be discharged, or varied, or set aside by the court on $\mathcal{L}_{\text{c}}(x)$ application made thereto by any party dissatisfied with such order"

$\mathbf{v} =$ The supreme court in the recent case of Robert Kayuma Vs. MS Hotel International Civil Appeal No. 8/1996, in the judgement of Seaton J. S. C, the principles to/followed when entertaining application in respect of Oder 37 rule 4 were ably laid out. In that case the appellant was the legal representative of $\n\frac{1}{2}M - \frac{1}{2}\n$ , the deceased, the original plaintiff who had a land dispute with the respondent. The appropriant filed a suit in the High Court and pending the hearing of the suit she applied for a temporary injuction against the respondent. The injuction was granted by one judge on 17/7/87 and on 16/9/87 the respondent applied to set it aside. The injuction was $\vec{\tau}_\perp$ set aside on 29/5/89 by another judge. The appellant then appealed to the supreme corrt against the said order. At the end of the judgement after allowing the appeal he summed up the principles to be followed in such cases as follows;-计数据表标准

" 1. An application to set aside, vary or discharge a temporary injuction may succeed if the applicant can show sufficient cause.

$.../18$

$\overrightarrow{q}$

$-17 -$

June 2. It might be considered sufficient that

$-18$

cause if the applicant could show

e.g. that the injuction was granted ex-parte. and he had no opportunity to adduce We certain matters of law or fact, which might have influenced the court not be grant the injuction, or that new facts had came to , humadocan - man whis knowledge which had been concealed

the toring the from the court by the plaintiff and/or

f in web E. vom. Vs.

$\sim 110$

$\mathbb{R} \cdot \mathbb{R}$

mitraidually water of could not reasonably have been ascertained at the time of the hearing, or, that owing to fresh circumstances, the injustion had become unduly harsh or unnecessary or W.1.00. in the diggeners: $M(S) = \{x \in \mathbb{R}^n : x \in \mathbb{R}^n : x \in \mathbb{R}^n \}$ unworkable.

water today to The court which is asked to set aside, vary with the or discharge the injuction should consider all the evidence adduced in support of the $\alpha$ $\alpha$ $\alpha$ $\alpha$ $\alpha$ $\alpha$ $\alpha$ application provided it is not intended sacrail bart s and to show that the court which granted the Make and all the v beinjuction erred or misdirected its self which the pain the law or the facts that were before it at the time and wrongly made the order get white ass in favour of the plaintiff, which strictly should be matters of appeal. ieste ... $\mathcal{A}^{\mathcal{A}}$

the raise in the finds and which a di 经期限 计分离性 经预定帐户 If it is believed that the court did so aedd in Theat error misdirect its self, the proper the nature is procedure is for the defendant to appeal became a forget and against the order granting the injuction.

$\rightarrow \mathbb{R}^{gm} \cup \mathbb{R}^{n}$ $5.$ If it is too late i'er an appeal, the defendant $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ may apply for a review of the order granting Frame was contracted injuction on the grounds set forth in . The set of the corder $42$ rule $1!!$ :

$-1$

$\mathcal{L}_{\mathcal{M}}$

$\cdots \cdot$

$\tau_{1,2}^{\prime},\tau_{1,1}^{\prime\prime\prime}$

Having stated the guiding principles to be applied, I shall new turn to the instant application. All the grounds raised by the applicant when opposing the grant of a temperary uction to the respondent were almost the same grounds $\frac{1}{2}$ $\frac{W}{\epsilon}$ to this court with some few variation here and there For example his first main ground was that the continuance of the injuction in force occassions injustice and hardships the applicant and that on balance of convenience it was fit and proper that it be set aside. He submitted that because the site where applicant was going to build, had already been levelled, that after rains, water has new collected there forming an artifical lake. And that this water is threatening the neighbouring Hotel building also belonging to the applicant. The second ground/that the applicant stand condemned in damages as all the contracts signed had been breached. It is important to note that all these alleged happenings came from the bar, the applicant in his affidavit para. 5 talked of the halting of the development and that it had caused and continues to cause ULENIX AM himpereattloss and damage. There was no evidence on cath or that of an expert witnesses to support the allegations. and therefore the court is unable to act on mere allegations.

The issue whether the suit was vexatious and frivolous, whether the suit had probability of success, balance of envenience, whether the plaintiff/respondent could sue the defendant without joining Kampla City Council, the provisions of the Public Lands Act were all exhaustively considered by my brother Justice Karokora and he made his ruling basing it

$.../20$

m the evidence adduced and the law. The cases of Sseviri and Kaso referred to me were all addressed by the judge.

From the submission of counsel for the applicant it is clear that he did not separate the issues which could $\cdot\cdots\cdot\cdots.$ $\mathcal{L}_{\mathcal{L}}$ have been raised on appeal and those which were necessary $\mathbb{E}^{\infty}(\mathbb{R}^n) = \mathbb{E}^{\mathbb{E}^{\infty}(\mathbb{R}^n)}$ for the variation of a temporary injuction. For example $\cdots \quad \text{and} \quad \cdots$ $\tau_{\rm c} \to \infty$ $\mathcal{L}_{\mathcal{A}}(x)$ at one point he said that the injuction had been granted in $\tau_{\rm{out},\rm{out}}$ $\mathcal{L}(\mathcal{L}, \mathcal{L})$ mare access to error. Order 37 rule 4 was not intended to give one judge $\mathcal{L}(\mathcal{L}) \cong \mathcal{L}(\mathcal{L})$ power to hear an appeal from another judge's decision. The $-113$ "issues raised by counsel should have been presented on appeal. 网络山 计标准类型 $\cdots \quad \cdots$ In the circumstances I cannot discharge or set aside the temporary injuction as there was no sufficient cause shown

by the applicant for setting aside, in accordance with the $\mathcal{M} = \mathcal{M} \mathcal{M} = \mathcal{M}$ $\mathcal{A}^{\vee} \rightarrow \mathcal{A}$ above cited principles. The temporary injuction granted on $*$ 30 28 $-1$ (1) 22/3/91 against the applicant/defendant is therefore unheld -but aff $\mathcal{H}^{\mathcal{L}}$ until the determination of this suit new pending or until the real add other order is issued from this court.

$\cdot$ $\cdot$ In conclusion both grounds of this application must fail. all edd $\ldots \quad \ldots$ However this case must be fixed immediately for hearing on $\gamma V \gamma^{-1} = \gamma \Omega \phi$ a date to be agreed on by the parties and the Registrar. Each $t = t - \frac{1}{2}$ party should bear its own costs.

$-200 - 1$

$\mathcal{A}$ =

$\cdots \vdots \cdots$

$13/12/91$

$\cdots\cdots$

The self of the grand and the self-self in a final $2.45$ P. M. $\mathcal{L} = \mathcal{L}$ $\mathbb{R}^{n+1} \longrightarrow \mathbb{R}^{n+1} \longrightarrow \mathbb{R}^{n+1}$ Mr. Serwanga for the Applicant

Ag.

建铁石 计一件 网络建筑的 化环 网络中国的 Mr. Kasule for the Respondents (1) 计微微微微微微微微微微微微微微微微微微微微微微微微微微微微微微微微微微微微 Respondents Present

Mr. Senyonga Court Clerk. and the property of the state of the Ruling Delivered Before the above.

rvire

the art to that

M. KIREJU

JUDGE