Nankoomi & Another v Onwuvuche & 3 Others (Civil Reference 8 of 2023)

Court of Appeal · [2024] UGCA 102 · 2024 Reference Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Reference to the full Court of Appeal from a single Justice's ruling granting a temporary injunction, brought under Rule 55 of the Judicature (Court of Appeal Rules) Directions

Decision

Reference allowed; the single Justice's temporary injunction order varied and substituted with revised injunction orders, with the term 'encroachment' deleted in respect of Plot 789; each party to bear own costs.

The full judgment

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Holding

The Court of Appeal allowed the Reference. It overruled the preliminary objection that the Reference was moot, holding a Reference is validly initiated under Rule 55(1) by writing to the Registrar within seven days. It struck out the respondents' affidavits, which introduced post-ruling facts without leave under Rule 55(2). On the merits, the single Justice had erred: the applicants, not the respondents, were in possession of Plot 789, so the word 'encroachment' was deleted from the order. The Justice also wrongly imported the 'nugatory' test for stay of execution into an application for a temporary injunction, the principles being distinct. The single Justice's order was substituted with revised injunction orders, each party bearing own costs.

Facts

The respondents sued the applicants in consolidated High Court Civil Suits 163 and 311 of 2019 over land at Kibuga Block 12, Plots 789 and 791, Mengo. Judgment was given for the applicants, declaring them bona fide purchasers of Plot 789 and ordering the Register rectified into their names, while the contract over Plot 791 between the 3rd respondent (Alice Makanga) and the respondents was held repudiated. The respondents appealed (Civil Appeal No. 278 of 2023) and applied for relief; in Civil Application No. 277 of 2023 the single Justice, Barishaki, JA, granted a temporary injunction restraining the applicants from encroaching on, selling, developing, mortgaging or transferring both plots until the appeal was disposed of. The applicants, who held a special certificate of title for Plot 789 and an interlocutory injunction and removal warrant in their favour, complained they had been restrained from encroaching on land they already occupied, and that the Justice wrongly found the respondents in possession on the strength of certificates of title not in their names.

Issues

Whether the Reference was moot and an abuse of court process because the Memorandum of Reference referred to the wrong application number.
Whether the respondents' affidavits in reply, introducing facts arising after the single Justice's ruling, were properly before the court without leave to adduce additional evidence under Rule 55(2).
Whether the single Justice erred in granting the temporary injunction without addressing the applicants' occupation of Plot 789 and in deciding the application in isolation of their pleadings.
Whether the single Justice erred in effectively restraining the applicants from encroaching on land they already occupied.
Whether the single Justice erred in holding that execution would render the pending appeal nugatory.

Orders

The preliminary objection is overruled.
The 1st, 2nd and 3rd respondents' affidavits in reply are struck out, with costs to the Applicants.
The Reference succeeds.
The order of the single Justice is substituted with the following orders.
A temporary injunction issues restraining the 1st and 2nd respondents (in Application No. 277 of 2023), their agents and servants, from selling, developing/constructing on, mortgaging or transferring the land comprised in Kibuga Block 12 Plot 789 at Mengo Kisenyi, until final disposal of Civil Appeal No. 278 of 2023.
A temporary injunction issues restraining the 3rd respondent and her agents from selling, developing/constructing on, mortgaging or transferring the land comprised in Kibuga Block 12 Plot 791 at Mengo Kisenyi, until final disposal of Civil Appeal No. 278 of 2023.
A temporary injunction issues restraining the 4th respondent (Commissioner Land Registration) from registering any transactions on the certificates of title for Kibuga Block 12 Plots 789 and 791 at Mengo Kisenyi, until final disposal of Civil Appeal No. 278 of 2023 or until further orders.
The word 'encroachment' is deleted from the order in respect of Plot 789.
Each party shall bear its own costs of the Reference.

Key headnotes

Civil Procedure — Reference from a single Justice — Mode of initiation under Rule 55(1)

A Reference from the decision of a single judge under Rule 55(1) of the Judicature (Court of Appeal Rules) Directions is validly initiated either by oral application to the single judge when the decision is given or by writing to the Registrar within seven days; the 'Memorandum of Reference' and 'Record of Reference' are practice innovations not provided for by the Rules, and a misdescription in such documents does not invalidate a Reference properly initiated.

Civil Procedure — Additional evidence on a Reference — Mandatory leave under Rule 55(2)

On the hearing by three judges of an application previously decided by a single judge, no additional evidence may be adduced except with the leave of the court; the requirement is mandatory, and affidavits introducing facts arising after the decision under reference, filed without leave, are improperly before the court and must be struck out.

Civil Procedure — Temporary injunction distinguished from stay of execution — Relevance of appeal being rendered nugatory

The principles governing a temporary injunction (a prima facie case with probability of success, irreparable injury not compensable in damages, and the balance of convenience) differ from those governing a stay of execution (likelihood of success and whether the appeal would be rendered nugatory); whether an appeal would be rendered nugatory is not a criterion for granting a temporary injunction, and a single judge errs by importing it.

Land & Property — Possession — Evidential weight of certificate of title where cancellation is in issue

While, in the absence of any other person with lawful possession, legal possession is vested in the holder of a certificate of title, where the very suit challenges the cancellation of title, actual possession cannot be determined from the certificates and must be established on the other facts on record.

Evidence — Unchallenged evidence — Effect of failure to cross-examine

The omission to challenge evidence-in-chief on a material or essential point by cross-examination amounts in effect to acceptance of that evidence.

Civil Procedure — Contents of a decree — Order 21 rule 6 CPR

A decree must agree with the judgment and clearly state the names and descriptions of the parties and the relief granted; where a trial judge alters the description of parties in a consolidated judgment, the judge must explain the change and state the original description so as to avoid errors in the decree.

Legislation cited (7)

Judicature (Court of Appeal Rules) Directions, SI 13-10, Rule 55
Judicature (Court of Appeal Rules) Directions r.2(2)
Judicature (Court of Appeal Rules) Directions r.6(2)(b)
Judicature (Court of Appeal Rules) Directions r.43(1) and (2)
Judicature (Court of Appeal Rules) Directions r.76
Judicature Act s.12(2)
Civil Procedure Rules Order 21 rule 6

Cases cited (9)

Uganda Revenue Authority v Stephen Mabosi (Supreme Court Civil Appeal No. 26 of 1995)
Shiv Construction Co. Ltd v Endesha Enterprises Ltd (Supreme Court Civil Appeal No. 34 of 1992)
Robert Kavuma v Hotel International (Supreme Court Civil Appeal No. 8 of 1990)
Justine E. M. N. Lutaya v Stirling Civil Engineering Company Ltd (Supreme Court Civil Appeal No. 11 of 2002)
Legal Brains Trust & BD Ltd v Attorney General (Civil Application No. 56 of 2023)
Betty Kizito v Dickson Nsubuga & Others (Civil Applications No. 25 and 26 of 2012)
Giella v Cassman Brown & Co. Limited [1973] EA 358
American Cyanamid Co v Ethicon Ltd [1975] AC 396
Theodore Ssekikubo & 3 Others v Attorney General & 4 Others (Constitutional Application No. 6 of 2013)

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