Tugume v Nalwadda & anor (Miscellaneous Application No. 152 of 2015)

Observed later treatment

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.

Holding

Held that the applicant failed to establish a prima facie case for the grant of a temporary injunction. The applicant admitted encroaching on the first respondent's land by 0.8 decimals. The second respondent established that the encroachment included a surveyed public access road, making the structures illegal under the Physical Planning Act 2010. Where there is no enforceable right or violation of a substantive right requiring protection, no temporary injunction should issue. Application dismissed with costs.

Outcome

Application for temporary injunction dismissed

Facts

The applicant and first respondent owned neighbouring plots in Kyadondo Block 213. In 2006, the applicant submitted building plans to Kampala Capital City Authority and commenced construction after both parties had surveyed and fenced their properties. A subsequent survey revealed that the applicant had inadvertently built structures extending 0.8 decimals onto the first respondent's land, Plot 2155. On 9 February 2015, the first respondent's lawyers issued a notice alleging trespass and illegal building. Settlement negotiations failed. On 25 February 2015, KCCA issued a notice requiring the applicant to remove illegal developments within 28 days, citing encroachment onto a surveyed public access road. The applicant contended that his structures were built with the first respondent's knowledge and that KCCA had acted ultra vires. KCCA maintained that the applicant had violated the Physical Planning Act by failing to obtain approved plans and building on a public access road.

Issues

1. Whether the applicant satisfied the conditions for the grant of a temporary injunction under Order 41 of the Civil Procedure Rules.
2. Whether the applicant established a prima facie case with an enforceable legal right requiring protection.
3. Whether the structures erected by the applicant constituted illegal developments on a surveyed access road requiring demolition under the Physical Planning Act 2010.
4. Whether the balance of convenience favoured the grant of a temporary injunction.

Orders

• Application for temporary injunction dismissed.
• Costs awarded to the respondents.

Rules and key headnotes

Legislation cited (8)

• Civil Procedure Rules Order 41 Rule 1(a)
• Civil Procedure Rules Order 41 Rule 9
• Civil Procedure Act s.98
• Civil Procedure Act s.64(e)
• Physical Planning Act 2010
• Public Health Act Cap 281
• Public Health (Building) Rules SI 281-1
• Town and Country Planning Act Cap 246

Cases cited (6)

• Board of Trustees Kabale University vs. the Attorney General and Kabale District Local Government Council Misc. Application No. 393/14
• American Cyanamid Co v Ethicon Ltd [1975] AC 396
• Kiyimba Kaggwa v Haji Abdu Nasser Kasule [1985] HCB 43
• Noor Mohammed Janmohamed v Kassamali Virji (1953) 20 EACA 80
• Sekitoleko v Mutabazi and Others [2001-2005] HCB 79
• Coastal Roadways Ltd & Anor. vs. State of West Bengal & Ors (1997) 2 CHN 215

Cases citing this judgment (1)

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.

• Nahabwe v Uganda (Criminal Appl. No. 46 of 2017)

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