Wakilii

Tumusiime v Busobozi (CIVIL APPEAL NO. 0038 OF 2016)

High Court · [2017] UGHCCD 165 · 2017 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court dismissal of application for temporary injunction
Decision
Appeal dismissed with costs to the respondent

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a temporary injunction cannot issue to preserve a status quo that already includes the complained-of structure. Where the defendant had already constructed a permanent wall blocking the plaintiff's access road before suit was filed, and this construction was the very subject of the head suit, there was no pre-existing status quo to preserve by way of temporary injunction. The proper remedy was to proceed to trial on the merits where the court could determine rights of access and order appropriate relief including removal of the structure if justified. Appeal dismissed with costs.

Outcome

Appeal dismissed with costs to the respondent

Facts

The appellant brought suit against the respondent for trespass, alleging that the respondent constructed a perimeter fence extending onto an access road leading to the appellant's property, blocking vehicular access. The respondent's construction left only 4 feet of the access road available, covering 5 feet with a permanent structure. The appellant applied to the Chief Magistrate's Court for a temporary injunction to stop further construction pending trial. The trial magistrate dismissed the application with costs. By the time the appeal was heard, the wall construction had been virtually completed. The appellant appealed the dismissal of the temporary injunction application.

Issues

  1. Whether the learned trial magistrate erred in ruling on the ground of irreparable damage.
  2. Whether the learned trial magistrate erred in ruling that the balance of convenience can be reparable by way of damages.
  3. Whether the learned trial magistrate erred in considering status quo as a ground for grant of temporary injunction.
  4. Whether the conditions for grant of a temporary injunction under Civil Procedure Rules O.41 r.1 were satisfied.

Orders

  • Appeal dismissed.
  • Costs of the appeal awarded to the respondent in this court and in the court below.

Rules and key headnotes

Temporary Injunctions — Status Quo — Requirement that Complained-of Act Not Yet Complete
A temporary injunction cannot issue to preserve a status quo that already incorporates the very act complained of in the head suit. Where a defendant has completed the construction that forms the basis of the plaintiff's claim before suit is filed, there is no pre-existing lawful status quo to restore by way of temporary injunction.
Temporary Injunctions — Conditions for Grant under CPR O.41 r.1
For a temporary injunction to issue under Civil Procedure Rules Order 41 rule 1, there must be property in dispute before the court which is in imminent danger of being wasted, damaged, or alienated. The danger must be prospective; if the complained-of act is already complete, the appropriate remedy is damages or mandatory relief at trial, not a temporary injunction.
Temporary Injunctions — Irreparable Injury and Adequacy of Damages
Where an injury can be quantified in monetary terms and the defendant is capable of satisfying damages, the injury is not irreparable. A constructed wall that blocks access can, by court order, be demolished; any inconvenience suffered can be compensated by damages. Such injury does not meet the threshold of irreparability required for temporary injunctive relief.

Legislation cited (2)

  • Civil Procedure Rules O.41 r.1
  • Civil Procedure Rules O.41 r.9

Cases cited (7)

  • Noor Mohamed Janmohamed v Karamali Virji Madhani (1953) 20 EACA 8
  • Yosamu Kawule v Erusania Kalule [1977] HCB 135
  • Sitefano Baraba v Haji Edirisa Kimuli [1977] HCB 137
  • Ugachick Poultry Breeders Ltd v Tadjin Kara (Civil Appeal No. 2 of 1997)
  • Giella v Cassman Brown & Co Ltd [1973] EA 358
  • Robert Kavuma v Hotel International Ltd [1993] 11 KALR 73
  • American Cyanamid Co v Ethicon [1975] AC 396

Full judgment

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

Tumusiime v Busobozi (CIVIL APPEAL NO. 0038 OF 2016) [2017] UGHCCD 165 (24 October 2017)
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.