Wakilii

Atwiine and Another v Asiimwe (HCT-05-CV-CA 76 of 2020)

High Court · [2023] UGHC 55 · 2023 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court ruling granting temporary injunction
Decision
Appeal dismissed; temporary injunction upheld; main suit to proceed to hearing

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the appeal and upheld the Chief Magistrate's grant of a temporary injunction. The court held that the trial Magistrate judiciously exercised his discretion in granting the injunction. Although the respondent failed to establish irreparable damage, the balance of convenience favoured preserving the developments on the land pending the main suit for compensation. The developments served as potential evidence and as the respondent's source of livelihood for caring for her child. The court found that the applicant had established a prima facie case with an interest in the land through her claimed developments worth UGX 18,500,000.

Outcome

Appeal dismissed; temporary injunction upheld; main suit to proceed to hearing

Facts

The respondent and first appellant were in a courtship relationship around August 2013 and had one child together. During the relationship, the first appellant allegedly gave the respondent land at Ruhimbo Cell, Kamuri Ward, Isingiro Town Council to use and develop for growing crops for the family. The respondent developed the land by planting bananas, maize, constructing a servant's quarters and a toilet. The relationship ended and they separated. In July 2018, the first appellant asked the respondent to vacate the land by 31st December 2019 as he wanted to sell it. On 15th July 2020, the respondent filed a civil suit seeking compensation of UGX 18,500,000 for the developments, special damages of UGX 1,150,000, general damages and costs. On 29th July 2020, she filed an application for temporary injunction to restrain the appellants from causing waste, damage, selling, cultivating, harvesting crops, chasing away her workers and alienating the property pending determination of the main suit. The Chief Magistrate granted the temporary injunction on 7th September 2020, finding that the balance of convenience favoured the applicant who had a child to care for and was using the crops for sustenance. The appellants appealed to the High Court.

Issues

  1. Whether the trial Magistrate failed to appreciate that the application for temporary injunction was incompetent and not sustainable in law.
  2. Whether the trial Magistrate erred in law and fact when he allowed the application for temporary injunction.
  3. Whether the trial Magistrate misdirected himself by engaging in extraneous matters, fanciful reasoning and imaginations.
  4. Whether the trial Magistrate misdirected himself when he claimed that the suit property was land.

Orders

  • Appeal dismissed.
  • Order of the trial Magistrate in ISG-036-CV-MA-37-2020 upholding the temporary injunction is upheld.
  • Costs of the appeal to abide the outcome of the main cause.
  • File CS-089-2020 to be immediately forwarded back to the Chief Magistrate's Court of Isingiro for expeditious hearing.

Rules and key headnotes

Civil Procedure — Temporary Injunctions — Judicial Discretion — Appellate Interference
The granting of a temporary injunction is an exercise of judicial discretion and an appellate court will not interfere unless it is shown that the discretion has not been exercised judicially.
Civil Procedure — Temporary Injunctions — Exercise of Discretion — Legal Principles
Discretion when applied to a court of justice means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, but legal and regular. Discretion must be exercised according to common sense and according to justice.
Civil Procedure — Temporary Injunctions — Conditions for Grant — Three-Part Test
Before a court grants a temporary injunction, three conditions must be satisfied: first, there must be a serious question to be tried on the facts alleged and a probability that the plaintiff will be entitled to the relief prayed; second, the court's interference is necessary to protect the plaintiff from the kind of injury which may be irreparable before the legal right is established; third, on a balance of convenience, there will be greater hardship and mischief suffered by the plaintiff from the withholding of the injunction than will be suffered by the defendant from the granting of it.
Land & Property — Temporary Injunctions — Interest in Land — Developments on Land
A temporary injunction relating to land can only be granted where the applicant has an interest in the land or on the basis that the respondent has threatened to dispose of the property in circumstances that could delay execution of any decree that would be passed against them. An applicant who has made developments on land for which she requires compensation has an interest in the land sufficient to support a temporary injunction.
Civil Procedure — Temporary Injunctions — Balance of Convenience — When Considered
It is only where there is doubt as to the adequacy of the respective remedies in damages available to either party or both that the question of balance of convenience arises. It is only where the court is in doubt as to whether there is a prima facie case or irreparable damage that it resorts to determining the case on a balance of convenience.
Civil Procedure — Temporary Injunctions — Balance of Convenience — Preservation of Evidence and Livelihood
Where developments on land serve as potential evidence in the main suit and as the applicant's source of livelihood for caring for a child, and the respondents are destroying, cultivating and harvesting the developments without allowing the applicant access, the balance of convenience favours granting a temporary injunction to preserve the property without waiting for the applicant's rights to be finally established.

Legislation cited (2)

Cases cited (19)

  • Father Nanensio Begumisa and Others v Eric Tiberaga (SCCA No. 17 of 2000)
  • Lovinsa Nankya v Nsibambi [1980] HCB 81
  • Nyero v Olweny and Others (Civil Appeal No. 50 of 2018)
  • Kaggwa v Ampire (Civil Appeal No. 126 of 2019)
  • Daniel Mukwaya v Administrator General (HCCS No. 630 of 1993)
  • Erisa Rainbow Musoke v Ahamada Kezala [1987] HCB 81
  • Farida Nantale v Attorney General and 5 Others (Misc. Application No. 230 of 2013)
  • Geilla v Cassaman Brown & Co. Ltd [1973] 1 EA 358
  • R v Wilkes (1770) 4 Burr 2527
  • Gardner v Jay (1885) 29 Ch 50
  • Parimal v Veena alias Bhart (2011) 3 SCC 345
  • ER Investment Ltd v Tanzania Development Finance Co. Ltd and Another [1999] EA 75
  • Tanzania Breweries Ltd v Kibo Breweries Ltd and Another [1999] 1 EA 341
  • East African Industries v Trufoods [1972] EA 420
  • Alley Route Ltd v UDB Ltd (Misc. Application No. 634 of 2006)
  • Agip (K) Ltd v Vora [2000] 2 EA 285
  • American Cyanamid Co. v Ethicon Ltd [1975] UKHL 1
  • Alley Route Ltd v Uganda Development Bank Ltd (Misc. Application No. 634 of 2006)
  • Mandatally Allibhai Popat v Master Managers & Traders Limited (Civil Appeal No. 13 of 2021)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Atwiine and Another v Asiimwe (HCT-05-CV-CA 76 of 2020) [2023] UGHC 55 (31 August 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.