Wakilii

Geoffrey Nangumya v Gulf Stream Investment (U) Ltd and Others (Civil Application 841 of 2022)

Court of Appeal · [2023] UGCA 417 · 2023 Application Dismissed ✦ 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 for a temporary injunction dismissed; the 1st respondent's possession of the suit property pending the appeal undisturbed

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment
Cited — treatment unverified cited in 2 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

On an application for a temporary injunction pending appeal, the single Justice held that the applicant failed to establish a prima facie case, having placed no material before the court — no draft grounds or memorandum — showing his intended appeal had a probability of success. He also failed to show irreparable injury: having lost ownership through foreclosure and sale to the registered proprietor, any loss was compensable in damages. As the eviction was complete and a return of execution filed, the status quo had changed and the balance of convenience favoured the respondents. The preliminary objections to the respondents' affidavits were dismissed; a deponent with personal knowledge needs no authority to swear, and defective portions may be severed. Application dismissed.

Facts

The applicant, the judgment debtor in HCCS No. 969 of 2018, had mortgaged the suit property (LRV 3323, Folio 2, Plot 47, Martin Road, Old Kampala) to the 2nd respondent. On the applicant's default, the 2nd respondent foreclosed and sold the property to the 1st respondent, which procured registration as proprietor. The earlier suit was settled by a consent judgment under which the applicant agreed to pay UGX 960,000,000 in instalments to redeem the property. He defaulted, paying only UGX 100,000,000, prompting the respondents to obtain an eviction order in EMA No. 283 of 2021. The eviction was executed on 6 December 2022 and a return of execution filed in court. The applicant's applications for review and stay of execution were dismissed. He filed a notice of appeal against the dismissal and applied for a temporary injunction to preserve the status quo on the suit property pending the appeal, claiming he remained in partial possession and would suffer irreparable loss through demolition of the premises housing his law firm and family business.

Issues

  1. Whether the affidavits in reply sworn by Mbabazi K. Emejeit and Mugabe Robert offend the Civil Procedure Rules and ought to be struck off the record.
  2. Whether Civil Application No. 841 of 2022 is competently before the court.
  3. Whether the applicant is entitled to a temporary injunction to preserve the status quo on the suit property pending the determination of his intended appeal.

Orders

  • The preliminary objections against the respondents' affidavits are dismissed.
  • The application for a temporary injunction is dismissed.
  • Costs of the application shall abide the outcome of the appeal.

Key headnotes

Evidence — Affidavits — Authority to swear on behalf of co-parties
A deponent who has personal knowledge of the facts requires no authority to depose to them, and the omission to attach written authority to swear on behalf of co-parties does not render the affidavit defective where the deponent deposes to matters within her own knowledge.
Evidence — Affidavits — Severance of defective portions
In administering substantive justice under Article 126(2)(e) of the Constitution, a court may sever or ignore false or irrelevant portions of an affidavit rather than reject the affidavit in its entirety.
Evidence — Affidavits — Deposition by a non-party witness
A person who is not a party to the proceedings, such as a court bailiff who carried out an execution, may swear an affidavit deposing to facts within his own knowledge under Order 19 of the Civil Procedure Rules.
Civil Procedure — Temporary Injunction — Conditions for grant
A temporary injunction will issue only where the applicant shows a prima facie case with a probability of success and that he would otherwise suffer irreparable injury not adequately compensable in damages; where the court is in doubt on those two pillars it decides on the balance of convenience.
Civil Procedure — Temporary Injunction — Prima facie case — Evidential burden
An applicant must place material before the court that goes beyond a mere assertion that the appeal has a likelihood of success, such as a draft memorandum of appeal disclosing the intended grounds; a failure to do so is fatal to the first condition for an injunction.
Civil Procedure — Temporary Injunction — Preservation of status quo after completed execution
Where an eviction has been carried out and a proper return of execution filed under Order 22 rule 22 of the Civil Procedure Rules, the status quo has changed; the court will not grant an injunction whose effect would be to reinstate an evicted party.
Land & Property — Mortgage — Loss of equity of redemption following foreclosure and sale
An applicant who has lost ownership of property through foreclosure and a completed sale to a registered proprietor cannot assert a sentimental attachment to it, and any loss he may suffer pending appeal is capable of being quantified and compensated in damages.

Legislation cited (14)

  • Judicature (Court of Appeal Rules) r.2(2)
  • Judicature (Court of Appeal Rules) r.6(2)(b)
  • Judicature (Court of Appeal Rules) r.43
  • Judicature (Court of Appeal Rules) r.76
  • Civil Procedure Rules Order 1 r.12(1)
  • Civil Procedure Rules Order 1 r.12(2)
  • Civil Procedure Rules Order 29 r.1
  • Civil Procedure Rules Order 19 r.1
  • Civil Procedure Rules Order 19 r.3
  • Civil Procedure Rules Order 22 r.22
  • Constitution of Uganda 1995 Article 126(2)(e)
  • Electronic Transactions Act 2011 s.6
  • Electronic Transactions Act 2011 s.7(2)(a)
  • Electronic Transactions Act 2011 s.8(5)

Cases cited (17)

  • Baligasiima v Kizza & Ors (Miscellaneous Application No. 1495 of 2016)
  • Bankone Ltd v Simbamanyo Estates Ltd (Miscellaneous Application No. 645 of 2020)
  • Col. (Rtd) Kizza Besigye v Museveni Y. Kaguta & Anor (Election Petition No. 1 of 2001)
  • Yona Kanyomozi v Motor Mart (U) Ltd (Civil Application No. 8 of 1989)
  • Omuhereza Rwakaboyo & 119 Others v National Forestry Authority (Civil Application No. 308 of 2014)
  • Grace Bamurangye Bororoza & 53 Others v Dr. Kasirivu Atwoki & 5 Others (Civil Application No. 44 of 2008)
  • Tayebwa Robert v Cresensio Mukasa (Civil Application No. 15 of 2017)
  • Lunkuse v Ssali Tamale & Another (Miscellaneous Application No. 926 of 2012)
  • Bitamisi Namuddu v Rwabugande Godfrey (Civil Appeal No. 16 of 2014)
  • Amongin Jane Frances Akii v Lucy Akello & Another (Election Petition No. 1 of 2014)
  • Godfrey Sekitoleko & Others v Seezi Mutabazi [2001-2005] HCB Vol. 3 80
  • American Cyanamid Co v Ethicon Ltd [1975] AC 396
  • Robert Kavuma v M/s Hotel International (Civil Appeal No. 5 of 1990)
  • Prof. Peter Anyang Nyongo & Others v Attorney General of Kenya & Others (EACJ Reference No. 1 of 2006)
  • Martin Burn Ltd v R.N. Banerjee 1958 AIR 79, SCR 514
  • Osman Kassim v Century Bottling Company Ltd (Civil Appeal No. 34 of 2019)
  • Gashumba Maniragura v Nkudiye (Civil Application No. 24 of 2015)
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.