Professional Documents
Culture Documents
Robert Kavuma Vs Ms Hotel International
Robert Kavuma Vs Ms Hotel International
Robert Kavuma Vs Ms Hotel International
AT MENGO
BETWEEN
Ug
ROBERT KAVUMA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT
a
AND
nd
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
w
Sebagereka. The Appellant alleged that it was agreed between her and
the late Kasiita Mulindwa that Mulindwa would transfer the property to
Li
her when Sebagereka, who was then in exile abroad, would transfer the
property to Mulindwa. Apparently Mulindwa died before the property
br
the property through fraud. She asked for a declaration that she was the
rightful owner of the property, general damages for trespass and an
y
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.
Ug
In arguing these grounds of appeal, Mr. Ntume-Nyanzi, counsel for the
Appellant, submitted in effect that the learned trial judge violated the
a
rules of natural justice by denying the appellant an opportunity to be
nd
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.
aO
counsel, the Appellant and her counsel were not present. Mr. Lwanga
who appeared for the Respondent pointed out that the parties agreed on
in
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
e
made his submission to the court. The record then reads as follows,
application is unreasonable.
y
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
Ug
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
a
hardly a week from the appointed day 28/4/88 Mr. Ntume-
nd
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
aO
delaying tactics.”
br
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
ar
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
y
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
Ug
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
a
of the first two grounds of appeal which must accordingly fail.
nd
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
aO
which is to the effect that the learned trial Judge erred in law in his
application of the principles of granting a temporary injunction.
in
satisfied,
success, and
Li
See Giella vs. Casman Brown and Co. Ltd 1973 E.A. 358.
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
Ug
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
a
for. The learned trial Judge did find that there were serious issues to be
nd
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.
aO
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,
nl
2. that there had been negotiations between the parties for the
e
As regards the first point, Annexture A1 and A2 to the plaint were letters
ostensibly written by Kasiita Mulindwa informing some tenants of the
Li
property in question that the property had been sold to the Appellant
with effect from 1st August 1975 and 3rd July, 1975.
br
evidence. They are part of the plaint not part of a sworn affidavit.
y
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.
(a) You have occupied part of the above plot, the property of
the said lady. And, without any consent from my client you
nl
(b) You did not seem to take heed of the numerous verbal
warnings from the lady, inspite of your knowledge that she
e
(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
w
(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
ar
land.”
y
202).
br
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
Ug
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
a
injunction to restrain the defendants from detaining the said goods and
nd
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
aO
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
nl
rent from the plaintiff and the plaintiff through his Advocate forwarded a
post-dated cheque for the sum due. The second defendant accepted the
e
In my ruling I said,
ar
In the case before us, Kasiita Mulindwa did not, at the time of the alleged
w
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
Li
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
Ug
which the Notice of Motion had been brought. He said,
Mr. Ntume-Nyanzi submitted that this provision did not give the court
appellate jurisdiction and that therefore the Court should revisit its
w
the time the injunction was granted has come to light. Learned counsel
accordingly submitted that the proceedings under rule 4 should be by
br
I find little guidance from the English authorities as the Rules of Court
applicable in England governing dissolution of injunctions were not
identified.
this…………19th……..day of………..April,……..1991.
e
CHIEF JUSTICE
w
B.F.B. BABIGUMIRA
REGISTRAR SUPREME COURT
ar
y