Wakilii

Shiv Construction Co.Ltd V Endesha Enterprises Limited (Civil Appeal 34 of 1992)

Supreme Court · [1993] UGSC 21 · 1993 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court order granting a temporary injunction
Decision
Appeal dismissed and temporary injunction maintained, with subsidiary orders varied to impose a four-month deadline to set the suit down and to require the respondent's undertaking as to damages.

Observed later treatment

Treatment recorded in citing cases followed in 12 · applied in 1 Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Good law Followed in 12 cases and applied in 1 case, with no adverse treatment recorded. Citations rising — 26 citing cases on record, 12 in the most recent three data years. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The Supreme Court dismissed an appeal against a High Court temporary injunction restraining the appellant from alienating disputed land subject to a joint venture agreement. The preliminary objection that the notice of appeal was incompetent was rejected: a notice lodged in both courts is valid provided the High Court lodgment is within time. Applying Giella v Cassman Brown, the Court held there was ample material before the trial judge supporting a real risk of alienation, and that as land was the basis of the agreement, damages would not be adequate compensation. The injunction was maintained, but the subsidiary orders were varied to lift it if the suit was not set down within four months and to require the respondent to give an undertaking as to damages.

Outcome

Appeal dismissed and temporary injunction maintained, with subsidiary orders varied to impose a four-month deadline to set the suit down and to require the respondent's undertaking as to damages.

Facts

The respondent, a newly formed company, sued the appellant, one of its promoters, for general damages arising from a joint venture agreement made on 7 December 1988. Under the agreement the appellant was to take 5% of shares and contribute land (Plot M 477 at Nakawa) on which a go-down would be erected, while the respondent provided building materials and imported machinery for a 95% shareholding; the land was to become a company asset. A dispute arose: the respondent alleged the appellant refused to transfer the land and denied access to install machinery, while the appellant contended the machinery was never imported, the land area was misdescribed, and the agreement was tainted by fraud and ultra vires its head lease. The respondent applied for and obtained a temporary injunction restraining the appellant from selling, renting, sub-letting or transferring the plot pending trial. The appellant, claiming buildings predating the joint venture and a wish to sub-let for US$4,000 per month, appealed the injunction.

Issues

  1. Whether the appeal was incompetent for failure to file the notice of appeal in the High Court as required by rule 74 of the Supreme Court Rules.
  2. Whether the temporary injunction was wrongly granted on mere suspicion that the property would be alienated, without supporting evidence.
  3. Whether the trial judge properly applied the principles governing the grant of a temporary injunction, including the balance of convenience.
  4. Whether the subsidiary orders made by the trial judge on grant of the injunction were proper.

Orders

  • Preliminary objection dismissed.
  • Appeal dismissed in principle.
  • Temporary injunction maintained.
  • Subsidiary order varied: the temporary injunction to be lifted if within 4 months from the date of judgment the suit is not set down for hearing.
  • The respondent/plaintiff to give an undertaking to pay the appellant damages to cover any loss caused by the injunction if the suit is dismissed.
  • Costs of the application to be costs in the cause.
  • Costs of the appeal awarded to the respondent.

Rules and key headnotes

Civil Procedure — Temporary Injunctions — Governing principles — Prima facie case, irreparable injury and balance of convenience
An applicant for a temporary injunction must show a prima facie case with a probability of success; an injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury that cannot be compensated in damages, and where the court is in doubt it decides the application on the balance of convenience.
Civil Procedure — Temporary Injunctions — Risk of alienation — Sufficiency of evidence over mere suspicion
While mere suspicion that property will be alienated is insufficient to support a temporary injunction, an injunction is properly granted where there is ample material before the court, including the respondent's expressed intention to sub-let or otherwise deal with the property, from which a real risk of alienation can be inferred.
Land & Property — Disputes over land — Adequacy of damages as a remedy
In disputes over land, damages are not usually sufficient as compensation, so that the threatened loss of an interest in land founded on the subject agreement constitutes irreparable injury justifying the grant of a temporary injunction.
Civil Procedure — Temporary Injunctions — Undertaking as to damages — Requirement on the applicant
An applicant who obtains a temporary injunction should be required to give an undertaking as to damages to cover the loss the restrained party may suffer if the suit is ultimately dismissed.
Civil Procedure — Appeals — Notice of appeal — Lodgment in both the Supreme Court and High Court
A notice of appeal lodged in both the Supreme Court and the High Court is not defective, and the appeal is competent, so long as the lodgment in the High Court is effected within the time allowed under rule 74 of the Supreme Court Rules.

Legislation cited (2)

Cases cited (2)

  • Giella v Cassman Brown & Co Ltd [1973] EA 358
  • American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504

Cases citing this judgment (24)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

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

Shiv Construction Co.Ltd V Endesha Enterprises Limited (Civil Appeal 34 of 1992) [1993] UGSC 21 (6 August 1993)
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.