THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(LAND DIVISION)

MISC. APPLC. NO. 1784 OF 2017

(ARISING OUT OF CIVIL SUIT NO. 884 0F 2014)

1. NKABWE CHRISTOPHER
2. NONDO MUHAMMAD:::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANTS
3.  

1. SHEBBA STEVEN
2. NAKALEMA NAZUULA JUSTINE::::::::::::::::::::::::::::::::RESPONDENTS

(Administrator and Administrix of

The Estate of the Late Nathan Kituuse)

BEFORE:      HON. MR. JUSTICE HENRY I. KAWESA

RULING

This application seeks orders for;

• A temporary injunction to issue against the Respondents, their agents, or assignees from transferring, selling, mortgaging, alienating, subdividing, constructing or in any way interfering with the suit land comprised in Kyadondo Block 65 Plots 109,135,37,38,166,230,232, and233 at Migadde, Wakiso District until the determination of the main suit.

• That the status quo be determined.

• That costs be provided for.

The grounds of the applications are;

1. That the 1^stApplicant entered into a verbal agreement with late Nathan Kituuse to process a certificate of title of land owned by the late Nakatanza Kyazze Fredrick on Block 65 Kyadondo which the deceased diverted from and the dispute arose.

1. That following the dispute the 1^stApplicant in year 2003 entered into an understanding with the late Nathan Kituuse to process for him a certificate of title of land on Block 65 Kyadondo in the name of the late Nakatanza Kyazze Fredrick.

1. That the understanding provided that upon the late Nathan Kituuse processing the certificate of title and register it in the 1^stApplicant’s name, the latter was to give him 5acres of land at Migadde.

1. That the 1^stApplicant continued to demand for the certificate of title from the late Nathan Kituuse but in vain until his death in 2006.

1. That the Applicants’ family complained to the office of the President, in respect of the suit land, which investigated the matter and revealed in 2009 that the late Kituuse had processed certificates of title of several plots on block 65 in the name of the late Nakatanza Kyazze Fredrick andlater transferred the same into his name. That the late Nathan Kituuse gave out Plot 229 to the President of Uganda on which the latter constructed a Community Health Centre.

1. That the family of the late Nathan Kituuse and the Applicants know each other, but the former family ignored to surrender the titles upon demand by the latter stating that they were still processing Letters of Administration.

1. That upon obtaining the said letters, the family of the late Nathan Kituuse instead registered themselves as proprietors of the suit land, and have now demanded the bibanja holders on the land to purchase their interests or else they share the land in their possession.

1. That the 1^stApplicant decided to lodge a caveat on the suit land which the Respondents have applied to be removed and a notice of its removal has been issued by the Registrar of Lands.

1. That following the issuance of certified documents in respect of the suit land, the Applicants have learnt that the late Nathan Kituuse forged a certificate of succession, claiming to be a beneficiary of the estate of the late Nakatanza Kyazze Fredrick, to fraudulently register himself on the suit land.

1. That the Applicants will suffer irreparable injury since their inheritance rights in the suit land will be disposed of.

1. That the suit land is in eminent danger and any time the caveat may be removed if this application is not granted which shall give an opportunity to the Respondents to sale the suit land and disregard the Applicants’ interests.

1. That the Applicants have filed Civil Suit no 884 of 2017 which has a likelihood of success, and if this application is not granted the main suit will be rendered nugatory.

1. That it is just and equitable that this application be granted.

The Applicants, through M/s. Joseph, Kiryowa & Co. Advocates, filed an affidavit deponed by the 1^stApplicant. This affidavit was more less a restatement of the grounds of the application.

The Respondents also filed an affidavit in reply through M/s. Magna Advocates deponed by the 1^stRespondent. In this affidavit, the Respondents denied every averment in the Applicants’ affidavit. They averred that the late Nathan Kituuse was the rightful owner of the suit land having acquired the same by purchase from the late Nakatanza Kyazze Fredrick. They attached a document written in Luganda in support of this averment. That after the death of the late Nathan Kituuse, all the suit land was transferred from the names of the late Nakatanza Kyazze Fredrick into the names of the late Nathan Kituuse upon the authority of the Administrator General who was the Administrator of the estate of the late Nakatanza Kyazze Fredrick. They add that the late Nathan Kituuse lawfully subdivided the suit land and donated land in Plot 229 to His Excellence the President. Further, that the late Nathan Kituuse enjoyed quite possession of the suit land for over 20 years without any disturbance until early 2000s’ when the 1^stApplicant claimed an unknown interest in it.

In their affidavit in rejoinder the Applicants added that the Administrator General has never been an Administrator of the estate of the late Nakatanza Kyazze as the Respondents claim. That this is because the Administrator General issued them a certificate of no objection in respect of the estate of the late Nakatanza Kyazze Fredrick without making any renunciation. They attached the said certificate as annexture“B”.

Further, that the Respondents are not registered on all the suit land because land in Block 65 Plot 166 is still registered in the names of the late Nathan Kituuse. In support of this averment, they annexed copy of a search statement from the land registry marked as “C”.

Lastly, in paragraph 20 of the affidavit, they averred that the total acreage of the land comprised in Plots 229, 230,232,233,166, 109, 135, 38, and 37 is 43 acres and not 20 acres as allegedly claimed by the Respondents in the main suit.  They also attached area schedules from the Drawings office marked as E1, E2, E3& E4in support this averment.

The power of the Court to grant a temporary injunction is derived from Section 38 of the Judicature Act and O.41 r. 1 and 2 of theCivil Procedure Rules.  If granted, atemporary injunction preserves the status quo of the subject matter pending the final determination of the main suit. It is granted so as to prevent the ends of justice from being defeated. SeeGodfrey Sekitoleko & Ors versus Seezi Mutabaazi &Ors [2001-2005] HCB 80.

This means that there must be a status quo to preserve before a temporary injunction can be granted. Status quo is a question of fact. It denotes the existing state of affairs beforea given point in time at which the acts complained of as affecting or likely to affect the existing state of things occurred. SeeJakisa & Others versus Kyambogo University Misc. Application No. 549/2013.

Counsel for the Applicants submitted that Plot 109, 135, 37, 38 are registered in the name of the late Nathan Kituuse, and that Plots 166, 232 and 233 are registered in the names of the Respondents as Administrators of the estate of the late Nathan Kituuse and that there are bibanja holders on the suit lands.

Counsel for the Respondents submitted,while relying on paragraph 16 of the Respondents’ affidavit in reply, that the Respondents are registered on the suit land. That part of the suit is being used for cultivation and, licensed out for stone quarrying. Counsel submitted also that the Respondents are in constructive possession through the bibanja holders’ occupation of part of the suit land.

In rejoinder, Counsel for the Applicant relied on paragraph 15 of the affidavit in rejoinder and annexture “C” and submitted that the Respondents are not registered on all the suit land because land in Block 65 Plot 166 is still in the names of the late Nathan Kituuse.

They stated further, that the Respondents are not in constructive possession of the suit land because bibanja holders have an equitable interest independent of the legal interest recognized under the Article 237 of the Constitution and the Land Act Cap 227. He relied on Kizito Mumpi Salongo versus Seruga Frank Civil Application. No. 68 of 2010.

Counsel added (while relying on paragraphs 12, 13, 14, 15, 16 and 17 of the affidavit in support of the application) that the suit land is under a threat of being alienated and disposed of by the Respondents. Further, that the Respondents have attempted to evict the bibanja holders from the suit land in order to sale of the same.

Under Section 3(4) (b) of the Land Act, the legal interest of a mailo land owner is separate from developments on land of bibanja holders. The land in question is mailo land. Under the aforementioned Section, the interests of bibanja holders on it are independent of the legal interest claimed by the Respondents. I thus agree with Counsel for the Applicants that the Respondents are not in constructive possession of the suit land since the bibanja holders are not in law agents of the Respondents.

It is clear from the evidence of the parties that there are bibanja holders on the suit land. That land in Block 65 at Plots 109, 139, 37, 38,230,232 and 233 is registered in the names of the Respondents as Administrators of the estate of the late Nathan Kituuse. What is not clear, however, is under what names is land in Block 65 Plot 166 registered.  I will not seek to dwell much on this since what is pertinent now is the question of status quo.`

The status quosought to be preserved by the Applicants is that the suit land remains registered under the names of the Respondents and/or the late Nathan Kituuse. In particular, the Applicants seek to stop the Respondents from dispossessing the bibanja holders, or alienating, or dealing with the suit land in any other manner until the final disposal of the main suit.

It is evident from the un-rebutted averment in paragraph 16 of the Applicants’ affidavit in support of the application and paragraph 15 of the Respondents’ affidavitthat they (Respondents) intend to deal with the suit land.

This in my opinion confirms that there is a status quo which ought to be preserved by a temporary injunction. This in particular is that the Respondents, their agents or assignees refrain from transferring, selling, mortgaging, alienating, subdividing, constructing or interfering with the suit land until the determination.

The next question to determine is whether the Applicants have satisfied the conditions for the grant of a temporary injunction. These conditions have been laid down in the case of Kiyimba Kaggwa versus Hajji Katende [1985] HCB 43, and are that;

1. The Applicant has a prima facie case with a probability of success;

1. TheApplicant will suffer irreparable injury unless the application is granted;

1. The balance of convenience is in the favour of the Applicant.

I now proceed to consider the conditions above in light of this application.

1. That the Applicant has a prima facie case with a probability of success

For this condition to be satisfied, the Applicant must prove to Court that the case presents serious questions of law to be tried and that it is not frivolous and vexatious. See Kiyimba Kaggwa vs Hajji Katende [1985] HCB 43.

The case for the Applicants is that the late Nakatanza Kyazze Fredrick has never sold any land to the late Nathan Kituuse from whom the Respondents claim to derive interest in the suit land. They add that the late Nathan Kituuse was registered on the suit land by fraud after forging a certificate of succession. Further, that the suit land exceeds the 20 acres as allegedly claimed by the Respondents to have been bought by the late Nathan Kituuse. It is also the Applicants’ case the Administrator General has never administered the estate of the late Nakatanza Kyazze Fredrick since the former issued to them a certificate of no objection without renouncing any letters of administration in respect of the same estate.

The Respondents’ defence, according to their written statement of defence, is that their father, the late Nathan Kituuse bought the suit land from the late Nakatanza Kyazze Fredrick. That transfer of the suit land into the names of their father was lawfully authorized by the Administrator General who was theAdministrator of the estate of the late Nakatanza Kyazze Fredrick.

It is clear from the above that there is a dispute as to who is the true owner of the suit lands. In view of the above authority, I am convinced that the dispute raises serious questions to be tried in the main suit. Accordingly, the Applicants have satisfied this condition.

1. That the Applicant will suffer irreparable injury unless the application is granted

Before the Applicants can satisfy this condition, they must prove that they will suffer substantial injury which cannot be atoned for in damages. See Tonny Waswa versus Joseph Kakooza [1989] HCB 79.

In determining this condition, the observation of Lord Diplock in the case of American Cynamid Co. vs Ethicon [1975] 1 ALL ER 504 is instructive. He stated that;

“The governing principle is that the Court should first consider whether if the plaintiff were to succeed at the tried in establishing his right to permanent injunction he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the Defendants’ continuing to do what was sought to be enjoined between the time of the application and the time of the trial. If damages in the measure recoverable at common law would be adequate remedy and the Defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted”

Counsel for the Applicants submitted that the Applicants were deprived of their inheritance share in the estate of the late Nakatanza Kyazze Fredrick by the late Nathan Kituuse. That presently, the Respondents (children of the late Nathan Kituuse) are intending to dispose of the same inheritance share. According to Counsel, this will disinherit the Applicants of their beneficial rights in the estate of the late Nakatanza Kyazze Fredrick which is obnoxious thus amounting to an irreparable injury.

In reply, Counsel for the Respondents submitted that the suit land has value and that a monetary figure can be ascribed to any loss that the Applicants may suffer. That under paragraph 3(h) of the plaint, the Applicants pray for general damages an implication that, in the event of loss, the suit land is capable of being atoned for by way of genera damages. He relied on P. K Ssengendoversus. James Ndawula Lumaama and 3 Ors HCMA No.456 of 2013.

Counsel for the Applicants rejoined by adding that the suit lands exceed 20 acres as allegedly claimed by the Respondents. That if the application is not granted and the Respondents go ahead to dispose of the suit lands, the Applicants shall suffer loss of more acres of land which the Respondents will not be in financial position to compensate given that they are Administrators.

In view of the above submissions, I am unable to find how damages would be incapable of compensating the Applicants in case of loss of the suit land. Apart from the claim that their beneficial interest in the suit land would be lost, the Applicants have not demonstrated, perhaps, any uniquenessin the suit land which is incapable of being quantified in damages.

Their Counsel submitted that the Respondents shall not be in financial position to compensate them in case of loss of the suit land. Not evidence in support of this was, however, adduced. I, therefore, agree with Counsel for the Respondents that Applicants can be ably compensated in damages.

Coupled with the fact that the Applicants are not in actual possession of the suit land, I am unable to find how loss of a beneficial interest in the suit land would be incapable of being compensated damages.

In my opinion, the Applicants have failed to satisfy this condition.

1. That the balance of convenience is in the favour of the Applicants

Courts have for long held that in case doubt of the first two conditions as above, then the matter should be decided on the balance of convenience. See Victoria Construction Works Ltd vs UNRA HCT-MA No. 601 of 2010.

The balance of convenience is the inconvenience or loss to each party if a temporary injunction is granted or not. Court would be more inclined to grant the application if the balance of convenience is in favour of the Applicant. SeeJover Byaruhanga vs Ali Muhoozi and Anor; HCMA No. 215 of 2014, Kiyimba Kaggwa versus Hajji Katende [1985] HCB 43.

Counsel for the Applicants submitted that the suit land has been fraudulently dealt with and at any time it is likely to be disposed of by the Respondents. That the Applicants being the rightful beneficiaries will suffer more compared to the Respondents whose beneficial interest in the suit land was obtained fraudulently.

For the Respondents, their Counsel submitted that they have the legal possession of the suit land and that their right to deal with the same should not be interfered with. That if a temporary injunction is granted, the determination of the main suit may take years which would inconvenience the Respondents.

In rejoinder, Counselsubmitted that the Applicants will be greatly inconvenienced as they shall have to undergo psychological torture because they have for long waited for justice to be done. Counsel added that the Respondents will not be inconvenienced since they are not in occupation of the suit land.

I have already observed that the Respondents intend to deal with the suit land. If this application is not granted, the Applicants stand a risk of permanently losing their beneficial interest in the suit land. This is unlike the Respondents whose right, if this application is granted; to deal with suit land will only be postponed until the determination of the main suit. The injunction will neither affect the value of, nor will it extinguish the alleged legal right. In the event that the Applicants lose in the main suit, I believe the Respondents will be compensated for the inconvenience caused by the temporary injunction.

This in my view means the Applicants stand to suffer a greater injustice than the Respondents. The balance of convenience is, therefore, in their favor.

In the circumstances of this case, I am satisfied that a temporary injunction is necessary to preserve the status quo until the determination of the main suit.

The application is proved and is granted as prayed.

………………………

Henry I. Kawesa

JUDGE

02/05/2018

02/05/2018

Kivumbi Ibrahim for the Applicants

Namuswe Veronica for the Respondents

1^st Respondent present.

Applicants absent.

Court:  Ruling delivered.

………………………

Henry I. Kawesa

JUDGE

02/05/2018

Main suit for mention on 30^th May 2018 at 11.00 am.

………………………

Henry I. Kawesa

JUDGE

02/05/2018