Wakilii

Atwiine and Another v Asiimwe (High Court Civil Appeal 76 of 2020)

High Court · [2023] UGHCLD 346 · 2023 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Chief Magistrate's Court ruling granting temporary injunction
Decision
Appeal dismissed; temporary injunction upheld; main suit to proceed to hearing at Chief Magistrate's Court.

Observed later treatment

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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 although the applicant failed to establish irreparable damage, the balance of convenience favoured the applicant who had a prima facie case and needed the developments preserved both as evidence and as a means of supporting her child. The trial magistrate had properly exercised judicial discretion in granting the injunction to protect the applicant pending determination of the main suit.

Outcome

Appeal dismissed; temporary injunction upheld; main suit to proceed to hearing at Chief Magistrate's Court.

Facts

Around August 2013, the respondent and the first appellant entered into a courtship and had one child. During the relationship, the first appellant allegedly gave the respondent land at Ruhimbo Cell to use and develop for the family. The respondent developed the land by planting bananas, maize, building a servant's quarters and a toilet. In July 2018, the first appellant asked the respondent to vacate by December 2019 as he wanted to sell the land. The respondent filed a civil suit seeking compensation of UGX 18,500,000 for the developments. She also filed an application for a temporary injunction to restrain the appellants from causing waste, cultivating, harvesting crops, and alienating the property pending the main suit. The Chief Magistrate granted the injunction despite the appellants' preliminary objection. The appellants appealed this ruling.

Issues

  1. Whether the trial magistrate erred in granting the temporary injunction.
  2. Whether the application for temporary injunction was competent and sustainable in law.
  3. Whether the trial magistrate properly considered the conditions for granting a temporary injunction.
  4. Whether the applicant established a prima facie case with likelihood of success.
  5. Whether the applicant would suffer irreparable damage if the injunction was not granted.
  6. Whether the balance of convenience favoured granting the injunction.

Orders

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

Rules and key headnotes

Civil Procedure — Temporary Injunctions — Conditions for Grant
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 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 withholding the injunction than will be suffered by the defendant from granting it.
Civil Procedure — Temporary Injunctions — Exercise of Judicial Discretion
The grant 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. Discretion 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 — Prima Facie Case
The burden lies on the applicant to show court that there exists a prima facie case before it with a likelihood that it will succeed. The applicant only needs to show that there exists a serious question to be tried and that the suit is not vexatious or frivolous.
Land & Property — Temporary Injunctions — Interest in 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 compensation is sought has an interest in the land sufficient to support a temporary injunction.
Civil Procedure — Temporary Injunctions — Balance of Convenience
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 — Appellate Jurisdiction — Review of First Instance Court
It is the duty of the first appellate court to re-hear the case by subjecting the evidence presented to the trial court to a fresh and exhaustive scrutiny and re-appraisal before coming to its own conclusion. The appellate court may interfere with a finding of fact if the trial court is shown to have overlooked any material feature in the evidence or if the balance of probabilities as to credibility is inclined against the opinion of the trial court.

Legislation cited (2)

Cases cited (18)

  • Father Nanensio Begumisa and Three Others v Eric Tiberaga (Supreme Court Civil Appeal 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 (High Court Civil Suit No. 630 of 1993)
  • Erisa Rainbow Musoke v Ahamada Kezala [1987] HCB 81
  • Farida Nantale v Attorney General and 5 Others (Miscellaneous 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 (Miscellaneous Application No. 634 of 2006)
  • Agip (K) Ltd v Vora [2000] 2 EA 285
  • American Cyanamid Co. v Ethicon Ltd [1975] UKHL 1
  • 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_(High_Court_Civil_Appeal_76_of_2020)_[2023]_UGHCLD_346_(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.