Wakilii

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

High Court · [2016] UGHCCD 97 · 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 for land dispute
Decision
Application dismissed. Respondents permitted 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

Held that an application for temporary injunction must satisfy three conditions: a prima facie case, likelihood of irreparable damage, and balance of convenience favouring the applicant. The court found that while the applicants established a prima facie case, they failed to prove irreparable loss or that the balance of convenience favoured them. The status quo had already changed as applicants had left the land and respondents were in possession pursuant to land purchase agreements. The injunction cannot be granted where it would disrupt the existing status quo. Application dismissed but respondents ordered to halt construction of permanent structures pending determination of the main suit.

Outcome

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

Facts

The applicants and 40 others claimed customary ownership of land. The respondent company entered into land purchase agreements and leases with the applicants for the disputed land and paid certain sums. The applicants alleged that the respondent's entry and dealings were illegal, fraudulent and constituted trespass. The applicants claimed they had been driven out of the land after receiving payments. By the time of suit, the applicants had left the land and the respondents were in possession. The applicants filed a civil suit seeking declarations premised on fraud and sought a temporary injunction to restrain the respondent from further dealing with the land pending determination of the main suit. The respondent opposed the application.

Issues

  1. Whether the applicants established a prima facie case with a probability of success.
  2. Whether the applicants would suffer irreparable damage which cannot be adequately compensated by an award of damages.
  3. Whether the balance of convenience tilted in favour of the applicants.
  4. Whether the status quo warranted protection by way of temporary injunction.

Orders

  • Application for temporary injunction 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 the land as at time of suit until final disposal of the main suit.
  • Costs in the cause.

Rules and key headnotes

Temporary Injunctions — Three Requirements for Grant
An applicant for a temporary injunction must prove: (1) a prima facie case with a probability of success; (2) that the applicant is likely to suffer irreparable damages which cannot be adequately compensated by an award of damages; and (3) that the balance of convenience tilts in favour of the applicant.
Temporary Injunctions — Purpose and Status Quo
The purpose of a temporary injunction is to preserve the status quo, which denotes the existing state of affairs before the acts complained of occurred. An injunction should be sought before the event, not on speculation, and cannot be granted where the status quo has already changed or if its effect would be to disrupt the existing status quo.
Temporary Injunctions — Status Quo After Change in Possession
Where parties have entered into land transactions involving exchange of consideration which altered land rights, and the applicant has left the land and the respondent is in possession pursuant to agreements, the status quo at time of suit is that the respondent is in possession. An injunction to restore the applicant to possession would disrupt rather than preserve the status quo.
Affidavit Evidence — Hearsay and Omnibus Paragraphs
An affidavit in which a deponent purports to swear on behalf of others without naming them, specifying what they own, or what they complain of, and which contains omnibus paragraphs contravening the rules governing affidavit evidence, is hearsay and does not offer competent evidence.
Temporary Injunctions — Irreparable Loss Where Damages Pleaded
An applicant cannot establish that they will suffer irreparable damage which cannot be adequately compensated by damages where they have pleaded for compensation in the alternative and are also praying for damages arising out of their complaint.
Temporary Injunctions — Balance of Convenience
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 a respondent has paid consideration for land and is in actual possession, while the applicant has surrendered constructive possession and is off the land, the balance of convenience favours the respondent.

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 97 (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.