Wakilii

Otimong & 2 Ors v Eastern Mining Ltd (HCT-04-CV-MA-0148-2015)

High Court · [2016] UGHCCD 98 · 2016 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for temporary injunction arising from civil suit regarding land transactions
Decision
Application dismissed. Respondents to remain in possession but prohibited from constructing permanent structures pending determination of main suit.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Application for temporary injunction dismissed. Court held that applicants failed to establish grounds for injunctive relief where status quo had already changed through land purchase agreements and applicants' departure from the land before suit. Prima facie case established, but applicants failed to prove irreparable loss or that balance of convenience favoured them over respondent in actual possession. Court exercised discretion under Civil Procedure Act section 98 to halt construction of permanent structures pending trial despite dismissing injunction application.

Outcome

Application dismissed. Respondents to remain in possession but prohibited from constructing permanent structures pending determination of main suit.

Facts

Applicants and approximately 40 others entered into land transactions with the respondent mining company. The parties exchanged considerations that altered land rights. Respondents entered into land purchase agreements and leases over disputed land. Applicants alleged the respondent's entry was illegal, fraudulent and in trespass. By time of suit, applicants had been driven out of their land and had received some monetary payments. Applicants had filed Civil Suit 30/2015 seeking declarations premised on fraud. The main suit was pending while applicants sought a temporary injunction to restrain respondent from further entry or dealing with the land. Respondents were in actual possession and occupation at time of the injunction application.

Issues

  1. Whether the applicants satisfied the conditions for a grant of a temporary injunction to restrain the respondent from dealing with the suit land.
  2. Whether preserving the status quo warranted an injunction in circumstances where the applicants had already left the land.
  3. Whether the applicants established a prima facie case with probability of success.
  4. Whether the applicants would suffer irreparable loss if the injunction were not granted.
  5. Whether the balance of convenience tilted in favour of the applicants.

Orders

  • Application dismissed.
  • Each party to bear their own costs.
  • Respondents to remain in possession of whatever they claim but to halt any construction of permanent structures which have the capacity to alienate, damage or change the status quo of that land as at time of suit till final disposal of the main suit.
  • Costs in the cause.

Rules and key headnotes

Civil Procedure — Temporary Injunctions — Status Quo — Change Before Suit Filed
The purpose of a temporary injunction is to preserve the status quo. Where the status quo has already changed before the suit is filed, particularly where applicants have left the land and defendants have entered into possession through land purchase agreements, there is no status quo to protect and an injunction should not be granted to disrupt the existing state of affairs.
Civil Procedure — Temporary Injunctions — Timing — Before the Event
An injunction should be sought before the event complained of occurs. It cannot be sought based on speculation and cannot be granted where the status quo has changed or if its effect would be to disrupt the existing state of affairs.
Civil Procedure — Affidavit Evidence — Hearsay and Omnibus Averments
An affidavit in which the deponent purports to swear on behalf of others without naming who they are, what they own, or what they complain of, and which contains omnibus paragraphs, is hearsay and incompetent evidence that cannot support an application for injunctive relief.
Civil Procedure — Temporary Injunctions — Balance of Convenience — Party in Possession
The balance of convenience tilts in favour of the party who will bear the greater risk of injustice if the injunction is not granted. Where respondents have paid money for land and are in actual possession, while applicants claim fraud but have surrendered constructive possession and are off the land, the balance of convenience favours the respondents.
Civil Procedure — Court's Inherent Powers — Section 98 Civil Procedure Act — Preservation of Rights Pending Trial
Despite dismissing an injunction application on its merits, the court retains discretion under section 98 of the Civil Procedure Act to make orders necessary to ensure justice to all parties, including ordering a party to halt construction of permanent structures pending final disposal of the substantive suit.

Legislation cited (2)

Cases cited (12)

  • Kiyimba Kagwa v Haji Abdu Nsasser Katende (1985) HCB 43
  • Godfrey Sekitoleko and Others v Seezi Mutabazi and Others (2001-2005) HCB 80
  • Giela v Cosman Brown & Co Ltd (1973) EA 358
  • EA Industries v Trufoods Ltd (1972) EA 420
  • Legal Brains Trust Ltd v Attorney General (HCMA 638 of 2014)
  • KAFERRO MAGODE OMONGIN V. OTABONG & ORS HCCA MT.11/186
  • HAJJI ABBASI NAMUJONGO & ORS V. TRUSTEES OF CHURCH OF UGANDA (MT. 45 OF 1995)
  • Sentongo and Another v Shell Ltd (1995) 11 KALR 1
  • JESSE J. ODAI OJARA & ORS V. BUSIA TOWN COUNCIL HCMA 458/2004
  • Daniel Mukwaya v. Administrator General HCCS. 630/1993 (unreported)
  • American Cynamid Co v Ethicon (1975) ALLER 504
  • GAPCO U LTD V. KAWEESA BADRU HCMA No. 259/2013 (Unreported)

Full judgment

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

Otimong & 2 Ors v Eastern Mining Ltd (HCT-04-CV-MA-0148-2015) [2016] UGHCCD 98 (2 November 2016)
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.