Wakilii

Kalemera v The Kabaka of Buganda & Anor (Misc. Application No. 1086 of 2017)

High Court · [2017] UGHCLD 210 · 2017 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for temporary injunction arising from civil suit concerning land ownership dispute
Decision
Temporary injunction granted pending determination of the head suit

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court granted a temporary injunction restraining the respondents from receiving compensation from UNRA for land subject to a ownership dispute. The court found that a serious triable issue existed regarding competing claims to the suit land, that damages would be inadequate if compensation were paid before resolving ownership, and that balance of convenience favoured the applicant who stood to lose irreparably if the land were acquired and compensation paid before determination of the head suit.

Outcome

Temporary injunction granted pending determination of the head suit

Facts

The applicant claimed to be a lineal descendant and 2nd degree beneficiary to the estate of the late H.H. Sir Daudi Chwa II, holding Letters of Administration for his father's estate, who was a 1st degree beneficiary. A consent judgment in 2015 had resulted in deed prints being processed for land at Masajja (originally FC18454 Block 273 Kyadondo) which the applicant claimed formed part of the late Kabaka's estate. Mailo certificates of title over the suit land had been issued in the name of the 1st respondent without the consent of the estate's recognised agent. UNRA was about to compensate the 2nd respondent for the Kampala-Jinja Expressway Project where it passed through the suit land. The respondents contended they were the registered proprietors by virtue of the Traditional Rulers (Restitutions of Assets and Properties) Act Cap 247.

Issues

  1. Whether a temporary injunction should be granted to restrain the respondents from acquiring compensation payment from UNRA pending determination of the head suit.
  2. Whether a supplementary affidavit filed after the time set by court and after the applicant filed an affidavit in rejoinder is competent.
  3. Whether the affidavit in reply sworn without demonstrated authority at the time of filing is defective.
  4. Whether the applicant has established a serious issue to be tried.
  5. Whether damages would be an adequate remedy for the applicant.
  6. Where the balance of convenience lies between the parties.

Orders

  • Application allowed.
  • Temporary injunction granted restraining the Respondents, their agents, servants or persons claiming under them from acquiring compensation payment from UNRA in respect of the Kampala-Jinja Expressway Project concerning land originally registered under FC 18454 Block 273 Kyadondo, pending determination of HCCS No. 535 of 2017 or until court otherwise orders.
  • Costs of this application to be in the cause.

Rules and key headnotes

Civil Procedure — Affidavit Evidence — Authority to Swear Affidavit on Behalf of Party — Requirement to Demonstrate Authority at Time of Filing
An affidavit is defective by reason of being sworn on behalf of another without showing that the deponent had the authority of the other at the time of filing the affidavit. The omission to accompany documents with the legal authority upon which a party derives locus at the time of filing such documents is a fatal omission.
Civil Procedure — Affidavit Evidence — Supplementary Affidavits — Filing After Affidavit in Rejoinder
Supplementary affidavits filed after affidavits in rejoinder have been filed and served on the opposite party are incompetent for flouting the law and procedure under Section 136 of the Evidence Act Cap 6. Evidence in chief must be presented first, followed by cross-examination, and lastly re-examination.
Civil Procedure — Affidavit Evidence — Filing Out of Time — Requirement for Leave of Court
Where time has been fixed for doing any act or taking any proceedings by order of court, the court may enlarge the time upon such terms upon application of the party seeking the extension. An affidavit filed out of the time set by court without leave of court is incompetent.
Civil Procedure — Temporary Injunctions — Purpose — Preservation of Status Quo
The primary purpose of an order of temporary injunction is the preservation of the status quo of the subject matter of litigation pending the final determination of the rights of parties in the head suit. Where the status quo has changed, an order of temporary injunction may serve no purpose as it may mean preserving the illegality or the breach or wrongful act.
Civil Procedure — Temporary Injunctions — Adequacy of Damages — Irreparable Injury
If the applicant is to suffer irreparable injury, then an injunction ought to be granted. Where compensation payment would render the main suit nugatory and the subject matter would no longer exist for the applicant to lay any claim of interest over if the applicant succeeds, no amount of damages would be adequate recompense.
Civil Procedure — Pleadings — Abandonment of Prayers — Court Discretion
There is no law that precludes a party from abandoning any part or the whole of its claim or reliefs it had sought from court in its pleadings. A court cannot hold a party upon reliefs which the party abandons or has sought to abandon. The court's discretion to grant remedies cannot be fettered by the form of the pleadings; the substance of litigation is the guiding factor.

Legislation cited (7)

Cases cited (10)

  • Daniel Mukwaya v Administrator General (High Court Civil Suit No. 630 of 1993)
  • GAPCO v Muwanga Muhammed T/a Musa & Moses Services (High Court Civil Suit No. 84 of 1998)
  • Hubbard v Vosper [1972] 2 QB 84
  • Kiyemba-Kaggwa v Haji A.N. Katende [1985] HCB 43
  • Mutembuli Yusuf v Nagwomu Moses Musamba and Another (Election Petition Appeal No. 43 of 2016)
  • Lena Nakalema Binaisa v Muchunguzi Mayers (Misc. Application No. 0460 of 2013)
  • Taremwa Kamishana Tomas v Attorney General (Misc. Application No. 48 of 2012)
  • Makerere University v St Mark Education Institute and Others (Misc. Application No. 373 of 1993)
  • Farkudin Vallibhai Kapasi and Another v Kampala District Land Board and Another (High Court Civil Suit No. 570 of 2015)
  • Gella v Cassman Brown & Co [1973] EA 358

Full judgment

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

Kalemera v The Kabaka of Buganda & Anor (Misc. Application No. 1086 of 2017) [2017] UGHCLD 210 (10 August 2017)
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.