Wakilii

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

Court of Appeal · [2023] UGCA 363 · 2023 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to a single Justice of the Court of Appeal for a temporary injunction pending appeal, following the High Court's refusal of a stay of execution
Decision
Temporary injunction granted restraining the respondents from dealing with the suit land until disposal of Civil Appeal No. 278 of 2023

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

A single Justice of the Court of Appeal granted the applicants a temporary injunction restraining the respondents from dealing with disputed land at Mengo-Kisenyi pending the determination of the appeal. Applying the principles in Shiu Construction v Endesha Enterprises and Ssekikubo v Attorney General, the Court found the applicants had shown a prima facie case of their right of appeal, that they would suffer irreparable injury because their family derived its livelihood from the suit land, and that the balance of convenience lay in their favour as they were in possession. The Court also found the application had been brought without undue delay. The injunction was ordered to subsist until disposal of the appeal.

Facts

The applicants were defendants in consolidated High Court Civil Suits Nos. 163 & 311 of 2019 concerning ownership of leasehold and other interests in land comprised in Kibuga Block 12 Plots 789 & 791 at Mengo-Kisenyi. Judgment was delivered on 17 May 2023 in favour of the 1st, 2nd and 3rd respondents. The applicants appealed and sought a stay of execution in the High Court, which was refused on 29 June 2023. They claimed they had purchased a leasehold interest, held certificates of title, and were in actual possession operating a car park business from which their family derived rent and livelihood. The respondents had extracted the decree and written to the Commissioner Land Registration to effect changes to the register; the 4th respondent directed the applicants to surrender the duplicate certificates of title. The applicants alleged a forceful eviction on 1 July 2023. Plot 791 had been reinstated to the estate of the late John Mbabali Makanga.

Issues

  1. Whether the applicants' appeal has a likelihood of success or discloses a prima facie case of their 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 or severally, their agents, servants and all persons 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 Injunction Pending Appeal — Conditions for Grant
A temporary injunction pending appeal will be granted where the applicant establishes that the appeal has a likelihood of success or a prima facie case of the right of appeal, that the applicant will suffer irreparable damage or the appeal will be rendered nugatory if the injunction is refused, and, where these are not established or the court is in doubt, that the balance of convenience favours the grant.
Civil Procedure — Temporary Injunction — Irreparable Injury — Meaning
Irreparable injury does not mean injury incapable of physical repair; it means an injury or damage that is substantial or material and cannot be adequately atoned for by an award of damages.
Civil Procedure — Temporary Injunction — Requirement of No Undue Delay
An applicant for a temporary injunction pending appeal must, in addition to the substantive conditions, establish that the application was instituted without undue delay.
Civil Procedure — Single Justice of Appeal — Jurisdiction
A single Justice of Appeal has jurisdiction to hear and determine a substantive application for a temporary injunction under the Judicature (Court of Appeal Rules) Directions.
Land & Property — Status Quo — Possession and Livelihood
Where an applicant is in actual possession of disputed land from which the applicant's family derives its livelihood, the balance of convenience favours preserving the status quo by a temporary injunction pending appeal, since alteration of that position cannot be adequately compensated in damages.

Legislation cited (6)

  • 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)
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.43(2)
  • Registration of Titles Act s.54

Cases cited (12)

  • Robert Kavuma v Hotel International (Supreme Court Civil Appeal No. 8 of 1990)
  • Sulaiman Muwonge Lubega v Attorney General (Constitutional Application No. 2 of 2012)
  • Kiyimba Kaggwa v Haji Abdul Nasser Katende (Civil Suit No. 2109 of 1984)
  • Hon. Theodore Ssekikubo & 4 Ors v Attorney General & 4 Ors (Constitutional Application No. 4 of 2014)
  • Shiu Construction v Endesha Enterprises Ltd (Supreme Court Civil Appeal No. 34 of 1992)
  • Hon. Theodore Ssekikubo & 3 Ors v Attorney General & 4 Ors (Constitutional Application No. 6 of 2013)
  • Akankwasa Damian v Uganda (Constitutional Application Nos. 7 and 9 of 2011)
  • Sentango 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)
  • Gashumba 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.