IN THE SUPREME COURT OF UGANDA

AT MENGO

(CORAM: WAMBUZI C.J., ODER, J.S.C., SEATON, J.S.C)

CIVIL APPEAL NO. 8 OF 1990

BETWEEN
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ROBERT KAVUMA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT
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AND
nd

M/S HOTEL INTERNATIONAL :::::::::::::::::::::::::::::::::::::::::: RESPONDENT

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(From H.C.C.S. No. 701 of 1987 between Namwandu Norah

N. Mugalasi vs. M/s Hotel International Ltd., against the
decision/order of Mr. Justice P.J.M. Tabaro of 29/5/1988 at
Kampala).
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JUDGMENT OF WAMBUZI, C.J.:

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The Appellant, Namwandu Norah Mugalasi, now deceased and is

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represented by Robert Kavuma, brought an action in the High Court

against the respondent, a limited liability company, claiming ownership
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of the houses situate on Kyaddondo, Block 244 Plot 2361 at Kisugu. She
claimed to have purchased the property from the late Kasiita Mulindwa
who in turn had purchased the same property from Samwiri Kato
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Sebagereka. The Appellant alleged that it was agreed between her and
the late Kasiita Mulindwa that Mulindwa would transfer the property to
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her when Sebagereka, who was then in exile abroad, would transfer the
property to Mulindwa. Apparently Mulindwa died before the property
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was transferred to the Appellant. Meanwhile the Respondent bought the

property from the legal representatives of Late Mulindwa in 1985, but the
Appellant maintains that the Respondent was registered as proprietor of
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the property through fraud. She asked for a declaration that she was the
rightful owner of the property, general damages for trespass and an
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injunction to restrain the Respondent from trespassing on the property.

In its written statement of defence, the Respondent claimed it was the

registered proprietor of the property and denied any fraud.

Upon application by Chamber Summons supported by an affidavit, the

Appellant obtained from the High Court a temporary injunction against
the Respondent on the 17th August 1987. This temporary injunction was
discharged by the High Court on the 29th May 1989 upon an application
to that effect by the Respondent. It is against this decision discharging
the injunction that the Appellant now appeals to this Court. There are
ten grounds of appeal.

The first two grounds of appeal are to the effect that the learned trial
judge erred in law and fact when he denied counsel for the Appellant an
opportunity to reply to the submissions of counsel for the respondent
and by failing to record counsel’s request to address the court.
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In arguing these grounds of appeal, Mr. Ntume-Nyanzi, counsel for the
Appellant, submitted in effect that the learned trial judge violated the
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rules of natural justice by denying the appellant an opportunity to be
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heard through her counsel. Mr. Ntume-Nyanzi unsuccessfully tried to
show by his own affidavit, which was not part of the record that the court
record was incorrect as to the happenings of the day.
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I find no merit in either of these grounds of appeal. The record is clear.

It indicates that on the 28th April, 1989 to which date the Judge had
adjourned a previous hearing in the presence of the parties and their
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counsel, the Appellant and her counsel were not present. Mr. Lwanga
who appeared for the Respondent pointed out that the parties agreed on
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the date and prayed to proceed. The hearing was stood over till 9.30
a.m. of the same day by which time neither the Appellant nor her
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counsel had appeared. The court then permitted the Respondent to

proceed with the application ex parte and Mr. Lwanga for the Respondent
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made his submission to the court. The record then reads as follows,

“Nyanzi: Appeared at 9:30 a.m. and has been in court. Allowed

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to proceed. Application under O.37 r 4 CPR for review of the

temporary injunction. I would have wanted to read the record
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of the proceedings so far. Pray for adjournment.

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Lwanga: Counsel for the Respondent has known of the

application since 2/11/88 when the notice of motion was
served. On 4/11/88, he swore the affidavit in reply. The
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application is unreasonable.
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Court: Application for adjournment refused.

Nyani: Unable to proceed.

Ruling reserved till 29/5/89. Costs in the cause”

In his Ruling the learned trial Judge had this to say on the matter,
 “On 12/4/89 when the matter was called for hearing, Mr.
Ntume-Nyanzi for the Respondent applied for an adjournment
on the ground that he needed more to peruse the record of the
proceedings. The hearing notice had been served on
29/3/1989. I was persuaded to grant the application and the
same was adjourned to 28/4/89. Before that date fell, my
attention was drawn to Mr. Nyanzi’s letter addressed to the
registry to avail him with the court file, not a copy of the
proceedings, so as to prepare for the hearing scheduled for
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28/4/89. I directed that, since the matter was subjudice, the
proper course to take was to apply for a copy of the
proceedings so far. No such application was made. Instead
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hardly a week from the appointed day 28/4/88 Mr. Ntume-
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Nyanzi’s firm repeated their demand for the court file itself. I
reiterated that it would be irregular and could possibly lead to
miscarriage of justice, to sanction surrender of the court file
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to interested parties. Then on 28/4/89 at 9.00 a.m. the file

was called so as to proceed with the application. The
plaintiff/respondent was not present. Mr. Ntume-Nyanzi was
not present either. The defendant company’s representative
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and Mr. Lwanga for the defendant/applicant, were present. I

liberally and generously stood over the case till 9.30 a.m. At
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9.30 a.m. I permitted counsel for the applicant to proceed in

the absence of counsel for the Respondent. Mr. Ntume-Nyanzi
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appeared at 9.35 a.m. After the applicant’s counsel closed his

submissions, Mr. Ntume-Nyanzi intimated he would be unable
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to proceed unless he first read the court file. He prayed for an

adjournment. The prayer for adjournment was rejected. It
appears to me the attitude adopted by the Respondent’s
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counsel is capable of only one explanation; a calculation to

delay the proceedings. The court cannot countenance
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delaying tactics.”
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I find it difficult to appreciate why the learned trial Judge did not permit
perusal of the court record in the presence of a court official as had been
suggested. However, counsel had been granted an adjournment of just
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over two weeks from 12th April to 26th April. The Appellant seems to have
applied to the Registrar for the court record on 26th only two days before
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the adjourned hearing. Be that as it may, the learned trial Judge had
suggested a course acceptable to him that is that the appellant should
apply for a copy of the court record as it stood at that time. According to
the record this was indicated in a minute sent by the trial judge to the
Registrar dated 27th, the day before the hearing. It was counsel’s
submission to us that he could not have made any application for a copy
of the record to be ready the following day. This much I would accept
but although counsel knew of the hearing date the Appellant and her
counsel were not in court on the 28/4/89. Counsel appeared later and
first, there was no explanation as to why counsel was not present at the
appointed hour and secondly, counsel did not apply for a copy of the
record nor did he apply for an adjournment to make such an application.
It appears to me that counsel wanted to peruse the court file itself. This
had already been rejected b the trial Judge. The record does not show
nor was it argued before us why counsel wanted perusal of the court file
itself rather than a copy thereof. Besides, to permit counsel to address
the court was an indulgence. The Respondent who was then the
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applicant had already been given permission to proceed ex parte. The
Appellant did not request the court to read the proceedings of that day
before counsel arrived. In these circumstances, I find no merit in either
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of the first two grounds of appeal which must accordingly fail.
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The third ground of appeal is to the effect that the learned trial Judge
erred in law and in fact in ignoring the considerations taken by the same
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court in granting the temporary injunction namely that there were

serious issues to be determined, that prima facie the appellant was in
possession and the Registrar of Titles had called for the certificate of title
for rectification. I will consider this ground together with ground four
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which is to the effect that the learned trial Judge erred in law in his
application of the principles of granting a temporary injunction.
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The principles for granting an interlocutory injunction are well settled

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although they have been expressed in various terms. It is generally

accepted that for a temporary injunction to issue, the court must be
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satisfied,

1. that the applicant has a prima facie case with a probability of

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success, and
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2. that the applicant might otherwise suffer irreparable damage

which would not be adequately compensated in damages.
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If the court is in doubt on any of these two issues, then

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3. the court will decide the application on a balance of

convenience.
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See Giella vs. Casman Brown and Co. Ltd 1973 E.A. 358.

In his ruling on the application for a temporary injunction, Kalanda Ag.

J. as he then was, set out those principles in his own way, considered
the evidence and arguments before him and said,
 “I have considered both arguments further, and I am of the
view that in deciding whether to grant this temporary
injunction or not, regard must be had to the balance of
convenience and the extent to which damage, if any, to the
applicant can be compensated for by damages rather than by
an injunction.”

With respect to the learned Judge, that is not the test. According to the
first of the three principles stated by the learned Judge himself, the
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applicant had to satisfy the Court first that there were serious questions
to be tried in the suit and secondly that on the evidence before the court
there was a probability of the applicant being entitled to the relief asked
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for. The learned trial Judge did find that there were serious issues to be
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tried in the suit; the question of the rightful owner of the land, how the
respondent came to be registered and the question about the numerous
negotiations to sell or buy land from the applicant by the Respondent.
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The learned trial Judge did not go on to say whether or not on the
evidence before him there was a probability of success by the applicant.
The learned trial judge found some evidence of the following facts,
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1. that the Appellant bought the property from Kasiita Mulindwa

and was in possession of the property by her tenants.
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2. that there had been negotiations between the parties for the
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appellant to sell land to the Respondent.

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3. that the Appellant’s challenge of the Respondent’s title was

supported by the Registrar of Titles.
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As regards the first point, Annexture A1 and A2 to the plaint were letters
ostensibly written by Kasiita Mulindwa informing some tenants of the
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property in question that the property had been sold to the Appellant
with effect from 1st August 1975 and 3rd July, 1975.
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Mr. Lwanga, counsel for the Respondent, objected to the acceptance of

these two letters as evidence as they had not been properly put in
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evidence. They are part of the plaint not part of a sworn affidavit.
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This may well be so, but I do not think that at that stage proof of facts
was required. What was required at that stage was to show prima facie
case and probability of success, not success.

Be that as it may, to the affidavit in reply sworn by Richardson on behalf

of the Respondent was attached a copy of the certificate of title to the
property in question. Perusal of the copy indicates that on the 1st April,
1975 Samwiri Kato Sebagereka was registered as proprietor of the land
in question. On 3rd April, 1985 the property was first registered in the
names of Kasiita Mulindwa almost ten years after the property is alleged
to have been sold by Kasiita Mulindwa to the Appellant. On the face of
it, therefore, in July 1975, Kasiita Mulindwa did not have title to the
property, he purported to have sold to the Appellant. Therefore, even if
annextures A1 and A2 are genuine letters written by Kasiita Mulindwa,
these letters do not establish in Mulindwa any interest in the land in
dispute beyond his own claim.
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Reference was made to negotiations of the sale of the property between
the Appellant and the Respondent as indicated by Annextures NN-1 and
NN-2 to the affidavit sworn in support of the application by the Appellant
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for a temporary injunction. NN-1 is a letter dated 23/10/81 regarding
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the suit property, it reads in part,

“I am instructed by Namwandu Norah Nakiridde Mugalasi of Tank

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Hill to write to you as below:-

(a) You have occupied part of the above plot, the property of
the said lady. And, without any consent from my client you
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encroached thereon and started erecting some structures.

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(b) You did not seem to take heed of the numerous verbal
warnings from the lady, inspite of your knowledge that she
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purchased that piece of land from the former proprietors.

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(c) The lady thus instructed me to handle this matter with you
to its conclusions. Armed with the authority I wish now to
give you the option to purchase that part (which measures
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about 0.5 of an acre) at the price of 150,000/- (one hundred

and fifty thousand only). This option will stand valid until
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the 31st October, 1981 after which date it will expire.

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(d) In the event that the offer is not acceptable to you, take
notice that my client will take such other steps as may be
appropriate to protect her interest over that part of the
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land.”
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NN-2 is the reply by the Respondent’s counsel dated 13/11/81. In so far

as is relevant, it reads,

“Your letter addressed to our client, Mr. Rennie A. Richardson

has been passed on to us for replying thereto. Our client is
prepared to entertain your proposal but there are some points
on which clarification is desired. We would like to have a look
at your client’s title deed to the land so that we can be sure
 that your client can transfer ownership of the land to our
client. If your client cannot produce a title deed as such, we
should still want to have a clear statement of her claim of
ownership of the land so as to enable us to advise our client
concerning your proposed deal.”

Here it is apparent that the Respondent is questioning the title of the

Appellant. There is no evidence of title or statement of claim offered.
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As regards the last point, the applicant alleged that the Respondent was
registered by fraud and challenged the Respondent’s title. The learned
trial Judge found that this fact was evidenced by a letter written by the
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Registrar of Titles. The letter from the Registrar of Titles, Annexture D,
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to the plaint, reads as follows, in so far as is relevant.

“With reference to the above mentioned land, this is to notify

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you that Mrs. Norah Nakiridde Mugalasi Namwandu has lodged an

application for rectification of the Registrar requesting that the
transfer of the land from the names of Samwiri Kato Sebagereka
to Hotel International be cancelled as registered in error
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according to section 178 of the Registration of Titles Act for the

following reasons:-
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1. Consent forms authorising the transfer were not approved

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and signed by the Commissioner of Lands and Surveys.

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2. Some of the shareholders of the Hotel International

appeared to be Non Africans. Therefore, the prior written
consent of the Minister of Lands, Mineral and Water
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Resources should have been obtained before registration of

the transfer in accordance with the Land Transfer Act (Cap
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202).
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Unless cause is shown to the contrary, you are hereby

requested to produce the Duplicate certificate of Title in
respect of the above land for rectification within fourteen days
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from the date of receipt of this letter.”

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Two matters are of interest here. The Registrar of Titles talks about
transfer of land from the names of Samwiri Kato Sebagereka to Hotel
International to have been in error. A perusal of a copy of the land title
indicates that the land was transferred from Kasiita Mulindwa to Margret
Kasiita and then to Hotel International Limited. It was not transferred
from Samwiri Kato Sebagereka direct to Hotel International. May be this
was a mistake on the part of the Registrar, however, more importantly
the reasons for the error are given by the Registrar. They are that no
consent was given by the Commissioner of Lands and that some
shareholders of the Respondent may be non-Africans. There is no
indication that the Respondent is not entitled to the property nor that the
property rightfully belongs to the Appellant for that matter. That the title
was challenged, cannot be disputed but on what grounds, is the issue in
my view.

In Nsubuga and another vs. Mutawe 1974 E.A. 487 the plaintiff
occupied a shop as a tenant in premises owned by the second defendant
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Company which was the registered proprietor. The second defendant
distained for rent and locked up the shop with the plaintiff’s goods
inside. The plaintiff filed a suit praying, inter alia, for a temporary
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injunction to restrain the defendants from detaining the said goods and
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for damages for trespass, wrongful eviction and detenue. By Chamber
Summons the plaintiff obtained from Manyindo J, as he then was, an ex
parte temporary injunction restraining the defendants from interfering
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with the plaintiff’s occupation of the shop and seizing of the goods. The
plaintiff continued to remain in possession. By Notice of Motion, the
defendant applied to the High Court to set aside the order of Manyindo J.
I heard the Notice of Motion and affirmed the Order of Manyindo J with
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some variation. The defendant appealed to the Court of Appeal against

my order. The brief facts were that the second defendant had demanded
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rent from the plaintiff and the plaintiff through his Advocate forwarded a
post-dated cheque for the sum due. The second defendant accepted the
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arrangement but the plaintiff subsequently stopped payment of the

cheque and this led the second defendant to distain. On the Notice of
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Motion, the plaintiff swore in his affidavit in reply,

“…………………..it came to my notice that the second

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defendant was owned by Departed Non-citizen Asians and that

consequently by operation of law, the said premises were no
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longer vested in it and I decided to withdraw the payment of

the rent I had made until the position was clarified.”
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In my ruling I said,
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“The question is whether the applicant is the owner or has a

claim in the property in question so as to be entitled to the
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rent…… In the circumstances of this case, it would appear

that there is a triable issue regarding who owns the premises
in question and the person or authority to whom or which,
rent is payable…… . The answer will depend on who is entitled
to the rent which is the subject matter.”

The Court of Appeal held, Mustafa JA at page 489,

 “As I have stated earlier the second defendant is a limited
liability company. There was no evidence adduced at all as to
who or what the shareholders of the second defendant were.
No register of shares was produced and no official from the
Registrar of Companies department was called, and in such
circumstances I fail to see how it could be said that the
second defendant was owned by “Departed non-citizen
Asians.”
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The learned Justice of Appeal considered other provisions of the law and
concluded,
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“As, however, no evidence was adduced I think that the
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plaintiff’s bare allegation that the second defendant was
“owned by Departed non-citizen Asians” might well be
unfounded and could not be acted upon. With respect I think
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that the Chief Justice erred in assuming without any evidence

before him, that the provisions of Decree No. 5 of 1973 applied
to the second defendant. The onus was on the plaintiff to
establish that the second defendant was owned by “departed
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Asians” within the meaning ascribed to this term in Decree

No. 5 of 1973, but no attempt was made to discharge it. The
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refusal of the Chief Justice to set aside the temporary

injunction was based on an unwarranted assumption
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unsupported by an iota of evidence, and on this ground alone I

think we should allow the appeal and set aside the temporary
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injunction granted to the plaintiff.”

In the case before us, Kasiita Mulindwa did not, at the time of the alleged
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sale, have title to the property and was accordingly in no position to sell
the property as claimed. How Kasiita Mulindwa came to lease the
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property to the tenants as claimed is not shown. No doubt the Appellant

has some claim but Kalanda Ag J did not consider and I find nothing to
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show probability of success of that claim. In Giella’s case supra at page

361 Spry V-P had this to say,
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“I accept that the Respondent has shown a prima facie case

with a possibility of success but personally I would not go so
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far as to say that a probability of success has been shown.”

In the instant case I do not think that even a possibility of success has
been shown. In these circumstances I am unable to fault Tabaro J in his
affidavit on the Notice of Motion to the effect that the Appellant did not
show any probability of success in her claim and that she failed to make
out a case to justify the issue of a temporary injunction.
Grounds 5 and 8 complaining about the burden of proof, weight of
evidence and the law applicable are like the third ground of appeal
different aspects of grounds four which I have already covered.

I will consider grounds 6, 7 and 10 together. They are to the effect that
the matter was res judicata, that Tabaro J had no jurisdiction to hear the
case as he was not a Court of Appeal.

In his ruling on the Notice of Motion, Tabaro J set out the law under
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which the Notice of Motion had been brought. He said,

“This is an application by Notice of motion under 0 37 rr 4 & 9

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and O 48 rr 1 & 2 of the Civil Procedure Rules to set aside the
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temporary injunction granted by this court against the
defendant, in favour of the plaintiff, on the 17th day of July,
1987, per Kalanda Ag. Judge (as he then was). It will be
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recalled that in terms of O 37 r 4 of the Civil Procedure Rules,

the court has powers to vary, discharge, modify, set aside or
review a temporary injunction depending on the
circumstances of the case.”
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Rule 4 provides as follows,

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“Any order for an injunction may be discharged, or varied, or

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set aside by the court on application made thereto by any

party dissatisfied with such order.”
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Mr. Ntume-Nyanzi submitted that this provision did not give the court
appellate jurisdiction and that therefore the Court should revisit its
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earlier decision only if there was an irregularity in procedure when

granting the injunction or where new evidence which was not available at
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the time the injunction was granted has come to light. Learned counsel
accordingly submitted that the proceedings under rule 4 should be by
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way of review in accordance with the provisions of Order 42 of the Civil

Procedure Rules. Learned counsel prayed in aid, the grounds for
dissolution of injunctions as given in Halsbury’s Laws of England
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Fourteen Edition Volume 24 paragraph 1112 at page 612,

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I find little guidance from the English authorities as the Rules of Court
applicable in England governing dissolution of injunctions were not
identified.

On home ground, I am not persuaded that Order 42 of the Civil

Procedure Rules is applicable in this case. The wording of Order 37 rule
4 is quite clear and the term “review” is not used. It seems to me that
any party dissatisfied with an order granting an injunction may apply to
have the order discharged, varied or set aside. There is no qualification
whatsoever to the power granted to the Court under this rule. I am not
persuaded that the existence of the alternative of an appeal in any way
diminishes or qualifies the powers of the court under this rule. A careful
reading of Nsubuga’s case supra supports this view. In that case the
High Court was criticised by the Court of Appeal as to the manner in
which a temporary injunction was granted ex parte without due regard to
the provisions of the law. The Court of Appeal also criticised the High
Court for refusing to discharge the injunction for lack of evidence to
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establish certain facts.

I am satisfied that Tabaro J acted properly in ascertaining whether or not

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the temporary injunction had been properly issued. If the Court had
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found that the injunction had been issued properly then there would
have been no cause shown for dissatisfaction. As cause for
dissatisfaction had been shown the Court had to grant the remedy.
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In my view this appeal should be dismissed with costs. However, as

Oder JSC agrees with the Judgment and orders proposed by Seaton JSC
there will be orders in the terms proposed by Seaton JSC.
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GIVEN under my hand and the Seal of this Honourable Court

in

this…………19th……..day of………..April,……..1991.
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Sgd: S.W.W. WAMBUZI

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CHIEF JUSTICE
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I CERTIFY THAT THIS IS A TRUE

COPY OF THE ORIGINAL.
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B.F.B. BABIGUMIRA
REGISTRAR SUPREME COURT
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