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Onwuvuche and Another v Nankoomi and 3 Others (Civil Appeal 277 of 2023)

Court of Appeal · [2023] UGCA 196 · 2023 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application by notice of motion for a temporary injunction pending appeal, heard by a single Justice of Appeal
Decision
Application allowed; temporary injunction granted pending disposal of Civil Appeal No. 278 of 2023

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Holding

On an application for a temporary injunction pending appeal, a single Justice of the Court of Appeal held that the applicants, who were in possession of the suit land and derived their livelihood from a car park business on it, had shown a prima facie case with a probability of success, that they would suffer irreparable injury not adequately compensable in damages, and that the balance of convenience lay in their favour. Because execution had begun through extraction of the decree and steps to alter the land register, the appeal would be rendered nugatory absent a stay. The application, filed shortly after the lower court refused a stay, was brought without undue delay. The injunction was granted pending disposal of the appeal.

Facts

The applicants were defendants in consolidated High Court Civil Suits Nos. 163 & 311 of 2019 concerning ownership of interests in land comprised in Kibuga Block 12 Plots 789 & 791 at Mengo-Kisenyi, Kampala. Judgment was delivered on 17 May 2023 in favour of the 1st, 2nd and 3rd respondents. The applicants filed an appeal and, after the High Court declined to stay execution on 29 June 2023, sought a temporary injunction in the Court of Appeal. The applicants claimed to have purchased leasehold interests and to hold certificates of title for both plots, and to have been in actual possession, operating a car park business and deriving rent for the family's sustenance, until evicted on 11 July 2023. They contended execution had begun through extraction of the decree, a police clearance letter, and a directive from the Commissioner Land Registration to surrender the duplicate titles to effect the decree. The respondents contended they were the bona fide registered owners, that Plot 791 had been restored to the late John Mbabali Makanga's estate, and that the application was premature, no formal execution application having been filed.

Issues

  1. Whether the applicants' appeal has a likelihood of success or discloses a prima facie case of a right of appeal.
  2. Whether the applicants will suffer irreparable damage, or the appeal will be rendered nugatory, if a temporary injunction is not granted.
  3. Where the balance of convenience lies.
  4. Whether the application was instituted without undue delay.

Orders

  • An order of temporary injunction is issued restraining the respondents jointly and/or severally, their agents, servants and all persons/entities/agencies claiming under them from any encroachment, selling, developing/constructing, mortgaging or transferring the suit land comprised in Kibuga Block 12 Plots 789 & 791, land at Mengo Kisenyi, until the disposal of Civil Appeal No. 278 of 2023.
  • The costs of this application shall abide the outcome of the appeal.

Key headnotes

Civil Procedure — Temporary Injunctions — Conditions for grant pending appeal
A temporary injunction pending appeal may be granted where the applicant establishes a prima facie case with a probability of success on appeal, demonstrates that irreparable injury not adequately compensable in damages would otherwise result, and, where the court is in doubt, that the balance of convenience lies in the applicant's favour; the application must also be instituted without undue delay.
Civil Procedure — Temporary Injunctions — Jurisdiction of a single Justice of Appeal
A single Justice of Appeal has jurisdiction to hear and determine a substantive application for a temporary injunction under Rules 2(2) and 6(2)(b) of the Judicature (Court of Appeal Rules) Directions.
Civil Procedure — Temporary Injunctions — Meaning of irreparable injury
Irreparable injury does not mean that the injury cannot physically be repaired; it means injury that is substantial or material and cannot be adequately atoned for by an award of damages.
Civil Procedure — Temporary Injunctions — Preserving status quo where appeal may be rendered nugatory
Where execution has commenced through extraction of a decree and steps to alter the land register, a temporary injunction may issue to preserve the status quo and prevent the pending appeal from being rendered nugatory.

Legislation cited (5)

  • Judicature Act, Cap 13 s.38
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.2(2)
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.6(2)(b)
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.43(1) and (2)
  • Registration of Titles Act s.54

Cases cited (12)

  • Robert Kanruma v Hotel International (Supreme Court Civil Appeal No. 8 of 1990)
  • Sulaiman Mawutonge Lubega v Attorney General (Constitutional Application No. 07 of 2012)
  • Kiyimba-Kaggwa v Haji Abdu Nasser Katende (Civil Suit No. 2709 of 1984)
  • Hon. Theodore Ssekikubo & 4 Ors v Attorney General & 4 Ors (Constitutional Application No. 04 of 2014)
  • Shiu Construction v Endesha Enterprises Ltd (Supreme Court Civil Appeal No. 34 of 1992)
  • Haruna Sentongo v I & M Bank (U) Ltd formerly Orient Bank (U) Ltd (Civil Application No. 114 of 2023)
  • Uganda Revenue Authority v National Social Security Fund (Civil Application No. 43 of 2023)
  • Hon. Theodore Ssekikubo & 3 Ors v Attorney General & 4 Ors (Constitutional Application No. 06 of 2013)
  • Akankwasa Damian v Uganda (Constitutional Applications Nos. 7 and 9 of 2017)
  • Tushabe Maniraguha v Sam Nkundiye (Civil Application No. 24 of 2015)
  • Giella v Cassman Brown & Co. (1973) E.A 358
  • Legal Brains Trust (LBT) Ltd v Attorney General (Civil Application No. 56 of 2023)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.