Lena Nakalema v Christopher Mubiru and Others (Miscellaneous Application No. 1505 of 2022) [2022] UGHCLD 196 (23 September 2022)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA LAND DIVISION

MISC. APPLICATION NO. 1505 OF 2022 (Arising from Civil Suit No. 1169 of 2021)

1. LENA NAKALEMA BINAISA :::::::::::::::::::::::::::::::::::APPLICANT

VERSUS

- 1. CHRISTOPHER MUBIRU - 2. GRACE KITAKA - 3. IRENE NABAWANUKA - 4. IRENE NABITAKA - 5. KIWANUKA JOSEPH - 6. COMMISSIONER LAND REGISTRATION ::::::::: RESPONDENTS

AND

YONG JING SHU ::::::::::::::::::::::::::::::::::::::::INTERESTED PARTY

BEFORE: HON. JUSTICE NAMANYA BERNARD

RULING

- 1. This Ruling is in respect of an application brought under Sections 64(c) & (e) and 98 of the Civil Procedure Act (Cap 71) ("CPA"); Sections 33, 38(1) & (3) of The Judicature Act (Cap 13); and Order 41 Rules 1, 7(a), & (9) of the Civil Procedure Rules, S. I 71-1 ("CPR"), for orders that: - Page 1 1. A temporary injunction doth issue restraining the respondents, their agents or any person acting under their

authority undertaking and/or conducting the proceedings communicated under Summons issued/dated 23rd August 2022 and Notification issued/dated 9th September 2022 in respect of land comprised in Kyadondo Block 264; Plots 72 & 87, 88, 89, 90, 91, 92, 93, 125 & 126 (formerly 74) at Mutundwe which is the subject matter of Civil Suit No. 1169 of 2021 pending the hearing and final disposal of the suit.

- 2. A temporary injunction doth issue restraining the respondents, their agents or any person acting under their authority from proceeding to deal with or effect/make changes in the Land Register Book by cancelling out land comprised in Kyadondo Block 264 Plot 72 & 87, 88, 89, 90, 91, 92, 93, 125 and 126 (formerly 74) at Mutundwe which is the subject matter of Civil Suit No. 1169 of 2021 pending the hearing and final disposal of the suit. - 3. An Order doth issue preserving and/or maintaining the status quo of the Land Register Book for the land comprised in Kyadondo Block 264 Plots 72 & 87, 88, 89, 90, 91, 92, 125 and 126 (formerly 74) at Mutundwe which is the subject matter of Civil Suit No. 1169 of 2021 pending the hearing and final disposal of the suit. - 4. In the alternative, a mandatory injunction doth issue returning the status quo of the Register for land comprised in Kyadondo Block 264 Plots 72 and 87, 88, 89, 90, 91, 92, 93, 125 and 126 (formerly 74) at Mutundwe to what it was at the time of filing Civil Suit 1169 of 2021. - 5. Costs of the application be provided for.

- 2. The application is supported by the affidavit of Lena Nakalema Binaisa, in which she deponed, inter alia that: - 1. On 9th December 2021, the 1st to 5th respondents filed Civil Suit No. 1169 of 2021 ("the main suit") before this Court. The subject matter of the main suit is the land comprised in Kyadondo Block 264 Plots 72 & 87, 88, 89, 90, 91, 92, 93, 125 and 126 (formerly 74) at Mutundwe ("the suit land"). - 2. The 1st 5th respondents make various contentions in the main suit all of which seek to question the propriety of the applicant's and/or the interested party's acquisition, ownership and registration of the suit land. Particularly, the 1st – 5th respondents contend that they are the rightful owners of the suit land and that the registration of the applicant and the interested party as proprietors of the suit land was in breach of trust and was fraudulent. - 3. In the main suit, the 1st 5th respondents prayed for an order from the Court cancelling the registration of the applicant and the interested party as proprietors of the suit land and the reinstatement of the 1st – 5th respondents on the suit land. - 4. Since it was filed, the main suit has progressed as follows: - a) The 1st 5th respondents served a summons and plaint on the Applicant and Interested Party on 10th December 2021. - b) The applicant and interested party filed Written Statement of Defence ("WSD") on 17th January 2022 and 10th January 2022 respectively.

- c) The 1st 5th respondents filed a reply to the applicant's WSD on 8th February 2022. - d) On 22nd February 2022, the 1st 5th respondents extracted Summons for Directions fixing the hearing of the application for directions on 4th April 2022 at 11.00am. - e) On 4th April 2022, the parties to the main suit appeared before Her Worship Janeva Natukunda, who heard and disposed of the application for directions, and forwarded the file to Learned Trial Judge for disposal of preliminary objections and further management. - f) By letter dated 4th April 2022, the 1st 5th respondents raised preliminary objections against the applicant's and interested party's WSD. The 1st – 5th respondents filed and served written submissions for the preliminary objections. - g) The applicant and interested party filed submissions in response to the 1st – 5th respondents' submissions on 15th & 26th August 2022 respectively. - h) By Hearing Notice extracted on 5th April 2022, the Court fixed the main suit for hearing on the 13th September 2022 at 9.00am - 5. While the main suit pends for the Court to consider it on merits, the 1st to 5th respondents who are the plaintiffs in the main suit have commenced parallel proceedings before the 6th respondent whose end result is to deal with and change the status of the suit land in the Register Book by cancelling

out the registrations of the applicant and interested party on the suit land. Notification of these parallel proceedings was communicated to the applicant and interested party by a summons published at page 40 of the New Vision Newspaper on 25th August 2022.

- 6. By letter dated, served and received on 26th August 2022, the applicant through her lawyers AF Mpanga Advocates notified the 6th respondent of the existence of the main suit and its contents before this Court. In the letter, the applicant informed the 6th respondent that the questions it seeks to investigate are already being investigated in this Court. - 7. In the letter, the applicant requested the 6th respondent to preserve the integrity of the main suit by stopping the parallel proceedings before it. The 6th respondent did not respond to the applicant's letter. - 8. Owing to the lack of response to the applicant's letter, on 9th September 2022 at 10.00am, the date indicated in the 6th respondent's summons, the applicant's lawyers attended before the 6th respondent as summoned. While there, the applicant's lawyers informed the 6th respondent of the proceedings in the main suit before this Court and the need to preserve the Court proceedings, and not to render them useless or moot or nugatory. The 1st – 5th respondents and their lawyer and the interested party's lawyer were also present when this information was communicated to the 6th respondent.

- 9. The 6th respondent did not heed to the information given to it. Instead, on the same day, 9th September 2022, the 6th respondent issued a notification threatening to proceed to effect changes to the Register by cancelling out Plots 72 and 87, 88, 89, 90, 91, 92, 93, 125 & 126 (formerly 74) at Mutundwe which is the suit land. - 10. The parties to the parallel proceedings before the 6th respondent are the same parties in the main suit. These parties are 1st – 5th respondents, the interested party and the applicant. - 11. The question sought to be investigated by the 6th respondent at the instance of the 1st – 5th respondent, that is, the propriety of the applicant's and/or the interested party's acquisition, ownership and registration on the suit land is the exact question which this court is investigating in the main suit. - 12. The relief being sought by the 1st 5th respondents from the 6th respondent, that is, alteration of the register book or cancellation of certificate of title for the suit land are the same as the reliefs the 1st – 5th respondents are seeking in the main suit from this court. - 13. This Court is competent to grant absolutely or on such terms as it may think fit all such reliefs as the 1st – 5th respondents, the interested party and applicant may be entitled to in respect of any of the claims in the main suit, and to completely and finally resolve and determine all matters in controversy between the parties to the main suit. That there

is no urgency to refer and/or seek the intervention of the 6th respondent at this time in any of matters in the main suit.

- 14. The attempt by the 6th respondent at considering and determining the propriety of the applicant's and interested party's acquisition, ownership and registration of the suit land while the same question is under consideration by this court shall render the main suit moot and nugatory. - 15. The applicant shall be prejudiced by 6th respondent's decision in concert with the 1st - 5th respondents, to proceed to effect changes to the register by cancelling out the plots 72 & 87, 88, 89, 90, 91, 92, 93, 125 and 126 (formerly 74) at Mutundwe which is the suit land. - 16. The proceedings before the 6th respondent are being undertaken and/or have been commenced in bad faith given the respondents knowledge of the main suit before this court. - 17. The proceedings commenced by the 1st 5th respondents before the 6th respondent offend the doctrine of res subjudice. - 18. The proceedings being undertaken by the 6th respondent at the instance of 1st – 5th respondents undermine the authority of this honourable court and its independence. - 3. The applicant was represented by Mr. Apollo Katumba of M/s AF Mpanga Advocates / Bowmans. Mr. Alvin Jabo represented Mr. You Jing Shu (interested party). The 1st – 5th respondents were

represented by Mr. Yiga Stephen Geoffrey holding brief for Mr. Simon Kiiza of S. K Kizza & Co Advocates.

- 4. The application was called for hearing on the 23rd September 2022 at 10:11 am. The 6th respondent, despite being served with the application, did not file a reply. I allowed counsel for the applicant to proceed exparte as against the 6th respondent. The 1st to 5th respondents did not file affidavits in reply, but their lawyer was present in Court when the application was called for hearing. - 5. The application was fixed for hearing by Court on the 13th September 2022 in the presence of Mr. Simon Kiiza, counsel for the 1st to 5th respondents. With this mind, I denied the request for adjournment made by counsel for the 1st to 5th respondents, and ordered that the hearing of the application should proceed. Counsel for the parties made oral submissions on the application, which I have considered in determining this application.

Consideration and determination of the application:

6. Counsel for the 1st to 5th respondents raised two preliminary objections. Firstly, that the application is not competent because it ought to have been brought before the Registrar of the Court, and not before a Judge. For this submission, he relied on Order 50 Rule 3 of the CPR. Secondly, counsel argued

that an injunction cannot lie against a government entity performing a statutory function, and for this, he relied on the case of Isaiah Kalanzi & Anor v. Attorney General & 2 Others, Misc. Application No. 659 of 2021.

- 7. Order 11A Rule 7 of the CPR as amended provides that the Registrar has power and jurisdiction to handle interlocutory applications, including the instant one. However, this does not in any take away the inherent jurisdiction of this Court to handle an application of this nature. The first preliminary objection is therefore overruled. As regards the second preliminary objection, this Court is vested with power to issue a temporary injunction against the commissioner for land registration as was held in the case of Mucunguzi Myers v. Sarah Kulata Basangwa, The Commissioner for Land Registration, Misc. Application No. 1329 of 2014 (Arising out of C. S. No. 211 of 2009). Accordingly, the second preliminary objection is also overruled. - 8. The main issue for determination is whether the application satisfies the conditions for the grant of a temporary injunction. - 9. Counsel for the applicant argued that since the 1st to 5th respondents did not file affidavits in reply, they are deemed to have conceded to the facts of the application, and that they can only submit on points on law. Counsel for the applicant also argued that the application satisfies the conditions for the grant of a temporary injunction, and that this Court is empowered under the law to grant the remedies sought, particularly to issue an injunction against the commissioner for land registration. He relied on the cases of Mucunguzi Myers (supra); Sudhir Ruparelia v. Crane Bank Uganda Ltd (In Receivership) & Bank of Uganda, SCCA No. 39 of 2020; and Alcon International Ltd v. The New Vision Printing & Publishing Co. Ltd & The Editor in Chief New Vision & Sunday Vision, SCCA No. 04 of 2010.

- 10. Counsel for the 1st to 5th respondents argued that the application does not satisfy the conditions for the grant of a temporary injunction. He prayed for the dismissal of the application with costs. Counsel relied on the cases of Mayers & Anor v. Akira Ranch Ltd [1972] 1 EA 347; Joseph Sekitoleko v. Ziribagwa, Misc. Application No. 540 of 2013; Muwonge Lubega v. Attorney General, Constitutional Application No. 07 of 2012; and Gastervus Muwanga & 3 Others v. Zzimbe & Anor, Misc. Cause No. 146 of 2020. - 11. The consequences of failing to file an affidavit in reply by the respondents is that the facts sworn to, in the affidavit in support of the application, are deemed to have been accepted as the truth (see the case of Mucunguzi Myers (supra)). It is my holding therefore, that the evidence adduced by the applicant by way of an affidavit in support of the application is uncontested.

12. Section 64(c) of the CPA provides that:

"In order to prevent the ends of justice from being defeated, the court may, if it is so prescribed— (a)… (b)…

(c) grant a temporary injunction and in case of disobedience commit the person guilty of it to prison and order that his or her property be attached and sold…"

13. Order 41 Rule 1 of the CPR provides that:

"1. Cases in which temporary injunction may be granted.

Where in any suit it is proved by affidavit or otherwise— (a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; … (b)…

the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the court thinks fit until the disposal of the suit or until further orders."

14. The law on temporary injunctions is well settled. The granting of a temporary injunction is an exercise of judicial discretion,

and its purpose is to preserve the status quo until the question to be investigated in the main suit can finally be disposed of. The conditions for the grant of an injunction are that: firstly, the applicant must show that there is a serious question to be tried in the main suit; secondly, such injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not be adequately compensated by an award of damages; thirdly, if the court is in doubt, it will decide an application on the balance of convenience. (See the cases of Kiyimba Kaggwa v. Katende [1985] HCB 43; and American Cyanamid Co v. Ethicon Ltd [1975] 1 All ER 505).

- 15. The evidence adduced by the applicant's affidavit (see paragraphs 2, 3, 4, 6) is to the effect that: - 1. The 1 5th respondents filed Civil Suit No. 1169 of 2021 in which they question the propriety of the applicant's and/or the interested party's acquisition, ownership and registration on the suit land. - 2. The 1st 5th respondents contend that they are the rightful owners of the suit land, and that the registration of the applicant and the interested party as proprietors of the suit land was in breach of trust and was fraudulent. - 3. The 1st 5th respondents pray for an order from the Court cancelling the registration of the applicant and the interested party as proprietors of the suit land, and the reinstatement of the 1st – 5th respondents on the suit land.

- 4. The 1st 5th respondents who are the plaintiffs in the main suit have commenced parallel proceedings before the 6th respondent whose end result is to deal with, and change the status of suit land, in the Land Register Book by cancelling out the registrations of the applicant and interested party on the suit land. - 16. I have also seen a Notice of Intention to effect changes in the Register dated 9th September 2022, issued by Mugaino Baker, for Commissioner Land Registration, attached to the applicant's supplementary affidavit which reads as follows:

"Lena Nakalema Binaisa P. O. Box 2750 Kampala

Mr. You Jing Shu P. O. Box 2750 Kampala

This Office received a complaint from Kiwanuka Joseph, administrator of the estate of the late Stanley Kitaka Kisingiri requesting for the cancellation of the Certificates of Titles comprised in Kyadondo Block 264 Plots 72, 87, 88, 89, 90, 91, 92, 93, 125 and 126 ([formerly] Plot 74) land at Mutundwe for having been irregularly [issued].

It's alleged by the complainant that Kyadondo Block 264 Plot 74 was [formerly] and at all material time registered in the name of S. K. Kisingiri under MRV.

He further alleges that Plots 72, 87, 88, 89, 90, 91, 92, 93, 125 and 126 ([formerly] plot 74) were erroneously and or irregularly subdivided out of Plot 74 and they are currently registered in the names of Lena Nakalema Binaisa and Mr. You Jing Shu.

This is therefore to give you notice that this office shall proceed to effect changes in the register by cancelling out Plots 72, 87, 88, 89, 90, 91, 92, 93, 125 and 126 that were created out of Plot 74, we therefore, request you to respond to the same within 21 days from the date of service on you hereof.

You are invited for a public hearing in respect of this matter on the 5th day of October 2022 at 10.00am in my office where your objections, if any, will be heard.

Given under my hand this 9th day of September 2022.

Signed MUGAINO BAKER FOR: COMMISSIONER LAND REGISTRATION

Page 14

Cc: KIWANUKA JOSEPH"

17. In the case of Mucunguzi (supra) where the commissioner for land registration amended the land register in respect of a matter that was pending determination by the Court, Justice Bashaija K. Andrew had this to say:

> "Having been put on notice that the matter was pending determination in court, the Respondent [commissioner land registration] ought to have exercised diligence and caution by refraining from dealing with the register in any way whatsoever. The so-called action of amendment of the register not only violated the principles that underpin the sub judice rule, but was also wantonly contemptuous of the due court process and hence the Respondent acted contrary to the law […]"

The court in this case proceeded to issue an order of certiorari quashing the decision of the commissioner for land registration amending the land register.

18. I am cognizant of the fact that in the instant case, there is no evidence that the commissioner for land registration has amended the land register. However, there is an imminent threat to amend the land register, and the notice to the applicant is unequivocal. The imminent threat to the applicant's land has been brought to this Court by way of this application, and this Court is enjoined to grant a relief to the applicant.

- 19. I am satisfied with the evidence adduced by the applicant, that there is a serious question to be tried in the main suit pending before this Court, concerning ownership of the suit land. The respondents are well aware of the pendency of the suit before this Court. Secondly, I am satisfied with the evidence adduced by the applicant of the intentions by the 6th respondent to effect changes in the land register, which is likely to occasion irreparable injury to the applicant. Such injury cannot be adequately compensated for with damages, considering that it involves potential loss of land by the applicant. - 20. Therefore, I allow this application, and make the following orders: - 1) A temporary injunction is hereby issued restraining the respondents and the Commissioner for Land Registration, their agents or any person acting under their authority from proceeding to deal with or make changes in the Register Book by cancelling out the registration of the applicant and the interested party from land comprised in Kyadondo Block 264 Plot 72 & 87, 88, 89, 90, 91, 92, 93, 125 and 126 (formerly 74) at Mutundwe which is the subject matter of Civil Suit No. 1169 of 2021: Christopher Mubiru & 4 Others v. Lena Nakalema Binaisa & Anor until the final disposal of the suit, or until further orders of this Court.

- 2) An Order is hereby issued preserving and/or maintaining the status quo of the Register Book for the land comprised in Kyadondo Block 264 Plots 72 & 87, 88, 89, 90, 91, 92, 125 and 126 (formerly 74) at Mutundwe which is the subject matter of Civil Suit No. 1169 of 2021: Christopher Mubiru & 4 Others v. Lena Nakalema Binaisa & Anor until the final disposal of the suit, or until further orders of this Court. - 3) The costs of this application shall abide the outcome of the main suit.

I SO ORDER.

NAMANYA BERNARD Ag. JUDGE 23rd September 2022