Sewaya v Kikonyogo Investiments Limited and 3 Others (Miscellaneous Appeal 3 of 2023) [2023] UGHCLD 269 (31 August 2023)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA (LAND DIVISION) MISCELLANEOUS APPEAL NO.03 OF 2023 (ARISING FROM MISCELLANEOUS APPLICATION NO.1164 OF 2022) (ARISING FROM CIVIL SUIT NO.394 OF 2022)

SEWAYA MUHAMMAD----------------------------- APPELLANT/PLAINTIFF

VERSUS

- 1. KIKONYOGO INVESTMENTS LTD - 2. HABA GROUP (U) LTD --------------------- RESPONDENTS/DEFENDANTS - 3. DAMANICO PROPERTIES LTD - 4. COMMISSIONER LAND REGISTRATION

RULING BEFORE HON. LADY JUSTICE KANYANGE SUSAN

This appeal was brought under S.98 Civil Procedure Act. S.33 Judicature Act cap13, Order 50 Rules 6 and 8 Civil Procedure Rules. It seeks for orders that:

- 1. The ruling and Orders issued by the Learned Assistant Registrar on 05^th October 2022 in HCMA No.1164 of 2022 dismissing the same be reversed and or set aside. - 2. HCMA No.1164 of 2022 be granted) - 3. Costs of this application be provided for.

The appeal was supported by Affidavit of Sewaya Muhammed but briefly the grounds are;

a. The learned Registrar erred in law and fact when she deliberately failed to follow the established tests required in granting of Interim Order thereby dismissing appellants' application and occasioning a miscarriage of justice.

- b. The leorned Registror erred when she despite hoving found thot there wos evidence of threot on usoge of disputed lond ond houses under construction on suit lond dismissed the oppellonts' opplicotion. - c. The leorned Registror erred in low when she deliberotely ignored the descriplion of the oppellonls kibonjo ond or equiloble interest on subject lond originolly Kyodondo LRV 135 folio I 7 Block 270 thot wos unlowfully sub-divided to creote omong others FRV 429 folio 5 plot 103 Busiro Block 537 Wokiso, FRV 356 Folio I 2 plot 1073 Lubowo Mpigi, folio 432 folio 23 plot 102, Busiro Block 537 Wokiso, FRV 380 folio 6 ploi 697 at Lubowo Estote Mpigi, o foct odmitted by respondents but insteod delved into cunent registrotion. - d. The leorned Registror erred in low ond foct when she ignored the ovewhelming evidence on record ond odmissions by the respondents over the disputed lond under threot ond bosed on issues of current registrotion though duly odmitted by the 3ui respondeni ond ownership o reserve of the Judge. - e. The leorned Registror erred when she deliberolely ignored the lsr ond 2nd respondents' odmissions both in their replies to the opplicolion for on interim order ond their respective submission on subiect lond cloimed by the oppellont ond the threot lhereon, thereby occosioning o miscorrioge of justice. - f. The leorned Registror erred when she ignored thot

oppellonts' interesl stems from his unregistered kibonjo occupotion ond forceful dispossession on port of the sub.lect lond thot wos originolly comprised on LRV 135 Folio l7 from which the 5 ocres of Lwezo B ond 154 ocres of kotiko- Birongo ore ond odmitted by the respondent from which he wos disposed in2020, ond notregistrotion which interest continues to be under threot of further subdivision by ihe respondents. - g. The leorned Registror ened by delving into procedurol technicolities ogoinst subsistence thereby occosioning o miscorrioge of justice.

The lsr ond 2,,,irespondents filed offidovits in reply. They overred thot the oppellont did not show proof of possession of the 154 ocres of

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kibania and also did not show current registration status of suit land. That he states he was evicted in 2020 from the 5 acres thus no imminent threat requiring grant of Interim Order. The 1^st respondent also averred he took over 96 acres of land out of 291 acres, subdivided it and disposed it off to $3^rd$ parties who have since developed. It while the 2^nd respondent also averred he took over 195 acres got registered and is embarking on development of a multibillion housing estate with various persons and entities.

Further to this that it also has residential houses on its land where some workers reside and the applicant had never been in possession on any part of his land. There is thus no imminent threat to warrant grant of an interim order. They prayed ruling and orders of learned Registrar be upheld and the Appeal be dismissed with costs.

Representation

M/s Tumusiime, Irumba & Co. Advocates represented the appellant while M/s Tumushimbise & Co. Advocates and Obed Mwebesa & Associated Advocates represented the $3^rd$ and $1^st$ respondents respectively.

It is the duty of the appellate Court to subject the evidence presented to the trial court to a fresh and exhaustive scrutiny and reappraisal before coming to its own conclusion. See case of Father Venensio Begumisa & 3 Others versus Eric Tiberaga SCCA No.17 of 2000 (2004) KALR 236.

Resolution

Preliminary objection

The 1^st respondent objected to the grounds of Appeal on grounds that they are argumentative and not precise. It prayed the grounds of appeal are struck out. Counsel relied on cases of Kitgum District Local Government and Another versus Angella High Court Civil Appeal No.08 of 2015.

M/s Tatu Naiga & Co. Emporium versus Vajee Brothers Ltd SCCA No.08 of 2000 and case of Margaret Shagi & Another versus Komuhangi Aret & 3 Others HCMA No.126 of 2022.

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' Order 43 Rule 1(2) of the Civil Procedure Rules provides thot the memorondum of oppeol sholl set for1h, concisely ond under distinct heods the grounds of objection to the decree oppeoled from without ony orgument or on norrotive.

The Block's Low Dictionory 8th Edilions on poge I l9l defines on orgumentotive pleoding os o pleoding thot stotes ollegotions rolher thon focts ond thus forces the court to infer or hunt on supportlng focts. l1 hos been held thot grounds of oppeol oughl to be (o) os cleor os possible (b) os brief os possible (c) os persuosive os possible without descending into norrotive ond orgument. See cqse of Kitgum Dislrict Locol Government ond Another versus Angello Odoch, Jimmy Joel HCCA No.08 of 20,l5.

I hove perused the impugned grounds of Appeol ond found they ore orgumenlotive ond not concise. Even Counsel who fromed them is forced to submit on them jointly like grounds 3, 4, 5 ond 6.

However, it would be unfoir to strike out the oppellonls' oppeol becouse of mistoke of counsel who did not drofl the grounds well. ln the cose of John Ken Lukyomuzi versus Attorney Generol ond Eleclorol Commission Supreme Court Conslitutionol Appeol No.2l of 2017, Courl did not strike out the grounds of oppeol for lock of conciseness os they were understood by counsel on the opposite side.

Similorly I won't strike them out but worn counsel not to repeot it next time. lwill proceed to determine the oppeol on its merils.

Grounds I ond 2

- l. The leorned Registror erred in low ond focl when she deliberotely foiled ond ignored to follow the well-estoblished principles required in the gronting of interim orders thereby dismissing the oppellont's opplicotion for interim order occosioning o miscorrioge of justice on the oppellont. - 2. Ihe leorned Registror erred in low ond focl when she despite hoving found thot there wos evidence of .threol on usoge of disputed lond

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and houses under construction on the subject land, dismissed the appellant's application for an interim order prejudicing the appellant.

The principles followed by courts for grant of interim order were stated in the case of Hwang Sung Industries Limited versus Tajden Hussein and Others SC Civil Application No.19 of 2008 where Okello JSC as he then was said for an application for interim order, it suffices to show that a substantive application is pending and that there is a serious threat.

In case of Yakobo Senkungu and other versus Cerecino Mukasa, SC Civil Application No.5 of 2013 it was held that granting of interim orders is meant to help parties to preserve the status quo.

The grant of an injunctive order is discretionary. The exercise of judicial discretion shall not be interfered with by the appellate court unless it is shown the trial court exercised its discretion wrongly and See Misc. Appeal No.37 of 2021 Frank Malungumu arbitrary. Gashumba versus Deborah Amanya Civil Division.

In his submissions counsel for the appellant submitted that the applicant filed an application for a temporary injunction. Further to this that the appellant demonstrated threat on usage of disputed land and houses under construction. That the 1^st respondent subdivided the suit land into several plots and disposed them off to several persons which is a threat and construction ensued.

That despite the Registrar finding imminent threat of construction of houses after the unlawfully subdivision she dismissed the applicant's application.

The $3^rd$ respondent submitted that it is a registered proprietor in occupation and appellant did not prove his registerable interest and neither is he in possession.

He has thus not proved any need for issuance of interim order and the Registrar was correct.

ln the lsr respondent's submissions it is stoled thol it ocquired 96 ocres of registered lond ond sold it off ofter subdividing it in different plots. Thot the severol persons hove tronsocted on lond ond developed it. Gront of on interim order would hove resulted in inconvenience to third porties who hove loken possession.

The Assistont Registror in her ruling found thot the Applicont/Appellont hod filed on opplicotion for lemporory injunction. She olso found he furnished pictoriol evidence showing lhe usoge of lond lo wi1 houses under construction on moin rood ond undeveloped plots of lond.

Thot he foiled to show current registrotion slotus of the suit lond ond the nexus between the respondents ond the ownership of the suit lond. Tho.l possession following the deoth of the owner of the kibonjo is not shown. He olso took possession of the five ocres ond he wos evicted in 2020. She thus found the opplicont hod not proved there wos imminent donger.

^Ifind thot the oppellont wos cloiming the lond 154 ocres ot kitiko ond 5 ocres ot Lwezo B os o kibonjo equiloble /owner. His pleodings did not show he wos in possession of the soid bibonjo os he hod olso been evicled from Lwezo B in 2020. The 1'1 respondent who ocquired 96 ocres hos since sold them off to third porties who hove developed the lond. lndeed opplicont/oppellont showed pictures of construction going on. The 3"rrespondent is olso in possession of port of the lond ond i1's not in dispute lts undertoking construction works.

Therefore, the oppellonl is not in possession of the lond ond it hos olreody been subdivided to different people who ore not even porties to this oppeol. There is thus no threot. Further to this by the 3"j respondent constructing on the lond it shows he is in possession, ond it does not extinguish the oppellont's cloims of his equitoble interesl if ony.

There wos thus no eminent threot on the disputed plot ond the registror followed the estoblished principles.

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Grounds 1 and 2 fail.

Grounds 3, 4, 5

- 3. The learned Registrar erred in law and fact when she deliberately ignored the description of the appellant's kibanja and or equitable interest on subject land originally comprised kyadondo LRV 135 folio 17 block 270 that was unlawfully subdivided to create among others FRV 429 folio 5 plot 103 Busiro Block 537 Wakiso. FRV 380 folio 6 plot 697 at Lubowa estate Mpigi a fact duly admitted by the respondents but instead delved into current registration thereby occasioning a miscarriage of justice on the appellant. - 4. The learned Registrar erred in law and fact when she ignored the overwhelming evidence on record and admissions by the respondents over the disputed land under threat and based on issues of current registration though duly admitted by the 3^rd respondent and ownership which is a reserve of trial Judge. - 5. The learned Registrar erred in law and fact when she deliberately ignored the 1^st and 2^nd respondents admission both in their replies to the application for an interim order and their respective submissions on the subject land claimed by the appellant and threat thereon thereby occasioning a miscarriage of justice.

Counsel for the appellant submitted that the 3^rd respondent admitted being in possession of the registerable interest in the suit land and the $2^nd$ and $3^rd$ respondents admitted alienating the land and the Registrar ignored the imminent threat by questioning the current registration of the disputed land.

In reply counsel for the 3^rd respondent submitted that the Registrar found that the registration status was not ascertained by the appellant and it was risky for court to issue orders against the third parties as appellant sought interim order on a chunk of land where he does not have and whose ownership is not proved.

The Registrar found that the applicant failed to show current registration status of the suit land and nexus between the respondents and the ownership of the suit land.

In the application No.1164 of 2022, applicant was seeking a) an interim order on kibanja measuring 154 acres land at kitiko Birongo and about 5 acres at Lweza B that was originally comprised in kyadondo LRV 135 folio 17, Block 270 that was unlawfully subdivided to create among others FRV 429 folio 5 plot 103 Busiro Block 537 Wakiso FRV 356 folio 12 plot 1073 Lubowa Mpigi FRV 432 folio 23 plot 102 Busiro Block 537 Wakiso FRV 380 folio 6 plot 697 at Lubowa estate Mpigi that were further subdivided in whatsoever manner pending the determination of the main application until the final disposal of the main application for temporary injunction.

b)The Commissioner Land Registration be directed to register the temporary injunction order on all plots that issued as a result of subdivision of land that comprised originally on kyadondo LRV 15 folio 17 where the applicant's equitable interest kibanja comprise.

In that application its clear the claimed kibanja by the appellant of 154 acres does not cover the whole of the registerable land. There was thus need for the applicant to show on which exact registerable title encompasses his kibanja so that the registrar makes clear orders.

The registrar was thus not wrong to state that the applicant failed to show current registration status of the suit land and nexus between the respondent and the ownership of the suit land.

Grounds 3.4 and 5 fail.

Grounds 6 and 7

6. The Registrar erred in law and fact when she ignored the fact that the appellant's interest stems from his unregistered /equitable/kibanja occupation and forceful, unlawful dispossession of part of the suit land that was originally comprised on LRV 135 folio 17 from which the 5 acres at Lweza B and 154 acres at kitiko-Birongo are admitted by the respondents from which he was disposed in 2020 and not registration

which interest continues to be under threat of further subdivision by the respondents.

7. The learned Registrar erred in law and fact when delved into typographical procedural technicalities against substance thereby occasioning miscarriage of justice on the appellant. Trial Magistrate erred in law and fact in ruling that the appellant has not demonstrated sufficient cause to warrant reinstatement.

Counsel for the applicant submitted that the substituting status quo is that the respondents are in the process of carrying out further subdivision and developments on the suit land and erecting up structures. That appellant clearly demonstrated there was imminent threat of construction of houses which the 3^rd respondent admitted but register failed to follow the established principles in granting interim orders.

While in reply counsel for the 3^rd respondent submitted that is the 3^rd respondent in possession and registered proprietor. The appellant admits claim of 154 acres which he has never possessed and was also evicted on the 5 acres in 2020. That there is thus no threat or danger imposed on land.

While Counsel for the 1^st respondent submitted that he bought 96 acres disposed them off after subdivision and several persons have transacted on land or further developed it. That grant of interim order would inconvenience the third parties yet the appellant is not in possession.

Black's Law Dictionary define status quo as a latin phrase that means without change and in the same situation as is was, or present existing state of affairs.

Legal position on Status quo is not about who owns the suit property but the actual state of affairs on the suit premises. Court's duty is only to preserve the existing situation pending the disposal of the substantive suit. In exercising this duty, court does not determine the legal rights to property but merely preserves it in its actual condition until legal title on ownership can be established or declared. See

cose of Ndemo Emonzi Rukondemo versus Mubiru Henry MA. No.225 of 2013

The current stotus quo os stoted by the I'r respondent is thot he subdivided lond ond sold off to third porties who hove since tronsocted ond or developing the some. The 3"r respondenl is olso in possession constructing thereon. This slotus quo wos confirmed by oppellonl in his offidovit ond in submission. lt's cleor the oppellont is not in possession of the I54 ocres ond the 5 ocres he cloims. The stotus quo which this court is enjoined to preserve is in fovour of 3rd respondent ond other 3rd porties in possession but not the oppellont. The registror wos thus correct to find thot ihe opplicont did not prove eminent threot to gront the order ond the opplicont did not show possession following the deoth of the kibon.jo owner.

Grounds6ondTfoil

ln conclusion the oppellont hos foiled to prove oll the grounds. Ihis Appeol hereby foils.

The orders of the Assistont Registror ore upheld.

Costs ore oworded to the respondents.

c{ ".9+- DAY OF ( 2023 DATED AT KAMPALA THIS -----..

KANYANGE AN AG JUDGE LAND DIVISION.