Wakilii

Departed Asains Property Custodian Board v Balikowa and Another (Miscellaneous Application 61 of 2023)

High Court · [2023] UGHCCD 299 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for temporary injunction arising from an appeal against an order for security for costs, which itself arose from a civil suit
Decision
Temporary injunction granted restraining respondents from interfering with the suit property pending determination of Miscellaneous Application No. 334 of 2022

Observed later treatment

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Holding

The court held that a miscellaneous application arising from another miscellaneous application constitutes a suit within the meaning of Section 2(x) of the Civil Procedure Act, and therefore an application for temporary injunction can be maintained even where the original civil suit has been struck off, provided it arises from a pending miscellaneous application. The court granted the temporary injunction, finding that the applicant had established a prima facie case, would suffer irreparable damage if the injunction were not granted, and that the balance of convenience favoured preservation of the status quo.

Outcome

Temporary injunction granted restraining respondents from interfering with the suit property pending determination of Miscellaneous Application No. 334 of 2022

Facts

The Applicant filed Civil Suit No. 50 of 2022 challenging the transfer of Plot 54 Main Street LRV 154 Folio 17 at Butembe Jinja Municipality to the Respondents on grounds of fraud. The Respondents filed Miscellaneous Application No. 265 of 2022 for security for costs, which was granted by the Deputy Registrar, ordering the Applicant to deposit UGX 70,000,000 within 30 days. The Applicant failed to comply and Civil Suit No. 50 of 2022 was struck off on 5 January 2023. The Applicant had filed Miscellaneous Application No. 334 of 2022 on 7 December 2022 to set aside the security for costs order. The Applicant then filed the present application (Miscellaneous Application No. 61 of 2023) for a temporary injunction to restrain the Respondents from interfering with the suit property. The Applicant claimed that the property had been allocated to Mr. Hamya Wilson Mulongo who was in possession and paying rent, but the Respondents were demolishing structures and attempting eviction. The Respondents contended they were the registered proprietors in possession.

Issues

  1. Whether the application for temporary injunction is competent when the underlying civil suit has been struck off.
  2. Whether a miscellaneous application arising from another miscellaneous application constitutes a 'suit' within the meaning of Section 2(x) of the Civil Procedure Act.
  3. Whether the applicant has established a prima facie case with a probability of success.
  4. Whether the applicant will suffer irreparable damage if the temporary injunction is not granted.
  5. Whether the balance of convenience favours the grant of a temporary injunction.

Orders

  • A temporary injunction is hereby granted restraining the Respondents and their agents/servants of Plot 54 Main Street LRV 154 Folio 17 at Butembe Jinja (suit property) from sale, mortgage, transfer, alien, dispose, eviction, demolition, threats, intimidation or other form of interference on the suit property until final disposal of M.A. 334 of 2022 or until further orders of court.
  • A temporary injunction be issued to preserve the suit property and maintain the status-quo pending the determination of Miscellaneous Application No. 334 of 2022 or until any further orders of this Court.
  • Each party shall bear its own costs.

Rules and key headnotes

Civil Procedure — Temporary Injunctions — Competence of Application — Definition of 'Suit'
A miscellaneous application arising from another miscellaneous application constitutes a 'suit' within the meaning of Section 2(x) of the Civil Procedure Act, which defines a suit as all civil proceedings commenced in any manner prescribed, and therefore an application for temporary injunction can be maintained on the basis of a pending miscellaneous application even where the original civil suit has been struck off.
Civil Procedure — Temporary Injunctions — Conditions for Grant — Prima Facie Case
For the grant of a temporary injunction, the applicant must show a prima facie case with a probability of success, which requires the court to be satisfied that the claim is not frivolous or vexatious and that there are serious questions to be tried.
Civil Procedure — Temporary Injunctions — Irreparable Damage — Definition and Application
Irreparable damage for purposes of granting a temporary injunction means loss that cannot be compensated for with money, and where failure to grant the injunction might compromise the applicant's ability to assert their claimed rights over property, for example when intervening adverse claims by third parties are created or when demolition of structures is threatened, there is a high likelihood of occasioning irreparable loss.
Civil Procedure — Temporary Injunctions — Purpose — Preservation of Status Quo
The purpose of granting a temporary injunction is to preserve the existing situation and the parties' legal rights pending litigation; the court does not determine the legal rights to property but merely preserves it in its actual condition until legal title or ownership can be established or declared.

Legislation cited (10)

Cases cited (8)

Full judgment

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Departed Asains Property Custodian Board v Balikowa and Another (Miscellaneous Application 61 of 2023) [2023] UGHCCD 299 (14 September 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.