Wakilii

Nalubulwa v Wamala [2024] UGHC 1229

High Court · 2024 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Deputy Registrar's decision granting a temporary injunction over land
Decision
Temporary injunction set aside; matter remitted to the Registrar to ascertain the disputed portion at locus

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court allowed the appeal and set aside the temporary injunction granted by the Deputy Registrar. The court held that the Deputy Registrar erred by relying on hearsay evidence, by making findings on ownership at the interlocutory stage, and by issuing an order that altered the status quo by restraining the appellant who was in possession of the land. The court further held that the injunction should have been limited to the disputed portion, not the entire kibanja.

Outcome

Temporary injunction set aside; matter remitted to the Registrar to ascertain the disputed portion at locus

Facts

The respondent owned a kibanja at Busega-Kabaale and in 2007 executed a deed of gift transferring a portion to the appellant's late husband, Charles Nandigo Zibalaba. The respondent alleged that the late husband took over more land than what was gifted. In 2013 the parties had an understanding permitting the appellant to use part of the respondent's land temporarily for storage of marram soil. After the husband's death, the appellant as administrator of his estate continued in occupation and allegedly began fencing and constructing permanent structures. The respondent filed a suit for trespass and obtained a temporary injunction from the Deputy Registrar restraining the appellant from utilizing the entire kibanja. The appellant appealed, contending the injunction altered the status quo and covered land that was not in dispute.

Issues

  1. Whether the Deputy Registrar erred in holding that the main suit raised triable issues.
  2. Whether the Deputy Registrar erred in relying on unproved hearsay allegations to find irreparable injury.
  3. Whether the Deputy Registrar made a final determination on ownership when granting the temporary injunction.
  4. Whether the temporary injunction altered the status quo by restraining the party in possession.
  5. Whether the temporary injunction should have been limited to the disputed portion of land rather than the whole kibanja.

Orders

  • Appeal substantially allowed.
  • Temporary injunction issued on 23 October 2023 in High Court Miscellaneous Application No. 2281/2023 set aside.
  • Appellant cannot sell or create third party rights over the claimed suit land portion until the main suit is determined.
  • Registrar directed to visit locus and ascertain the portion of the suit land in dispute when hearing the summons for directions.
  • Costs in the cause.

Rules and key headnotes

Civil Procedure — Temporary Injunctions — Prima Facie Case — Triable Issues
A prima facie case means a case with triable issues for adjudication; the court must be satisfied that the claim is not frivolous and vexatious, but need not resolve the merits at the interlocutory stage.
Evidence — Affidavit Evidence — Information and Belief — Disclosure of Source
Where a party intends to rely on information in an affidavit, the source of such information must be disclosed under Order 19 Rule 3 of the Civil Procedure Rules; an affidavit based on information that does not disclose the source becomes incurably defective and holds no evidential value.
Civil Procedure — Temporary Injunctions — Balance of Convenience — Possession
In granting a temporary injunction, the balance of convenience tilts in favour of the party who is in possession of the suit land; the party seeking the injunction must adduce evidence of possession.
Civil Procedure — Temporary Injunctions — Determination of Ownership at Interlocutory Stage
While dealing with a temporary injunction, the trial court must not look into the merits of the case or make final determinations on ownership; such matters are for determination at full trial on evidence.
Civil Procedure — Temporary Injunctions — Purpose — Preservation of Status Quo
The purpose of a temporary injunction is to preserve the status quo on the suit property pending disposal of the main suit, consisting of the actual state of affairs on the premises prior to filing of the main suit; an order that alters the status quo by restraining the party in possession is erroneous.
Civil Procedure — Temporary Injunctions — Scope of Order — Disputed Land Only
A temporary injunction should be limited to the portion of land actually in dispute and should not extend to the entire property where part of the property is admittedly not contested.
Civil Procedure — Affidavit Evidence — Unchallenged Affidavits
Where certain facts are sworn to in an affidavit and the opposing party does not file an affidavit in reply, those facts are presumed to have been accepted and stand unchallenged.

Legislation cited (5)

Cases cited (13)

  • Anawiri Mukagenzi v Phenehas [1991] KALR 82
  • Makerere University v St Mark Education Institute Ltd & Ors [1994] KALR 26
  • Digital Solutions Ltd v MTN (U) Ltd (HCMA No. 546 of 2014)
  • Ndema Emanzi Rukundema v Mubiru Henry (HCMA No. 225 of 2013)
  • Kiyimba Kaggwa v Haji Katende (1985) HCB 43
  • Odyek Alex & Anor v Gena Yekonani & 4 Ors (Civil Appeal No. 009 of 2017)
  • Kigongo Edward Nakabale v Kakeeto & Anor (MA No. 144 of 2017)
  • Eseza Namirembe v Musa Kizito (1972) ULR 8
  • Byaruhanga & Ors v Kabagahya (HCMA No. 564 of 2016)
  • Okonga Rashid v Byenkya Amos & 6 Ors (Civil Application No. 977 of 2023)
  • Commodity Trading Industries Ltd v Uganda Maize Industries & Anor [2001-2005] HCB 118
  • American Cyanamid Co v Ethicon Ltd [1975] AC 396
  • Imelda Gertrude Basudde Nalongo v Tereza Mwewulize & Anor (HCMA No. 402 of 2003)

Full judgment

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

Nalubulwa v Wamala 2024 UGHC 1229 (23 October 2024)
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.