[2024] UGHCFD 74

#### **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT KAMPALA**

#### **(FAMILY DIVISION)**

#### **MISCELLANEOUS APPLICATION NO. 1084 OF 2024**

#### **(ARISING FROM CONSOLIDATED MISCELLANEOUS**

#### **APPLICATION NO. 62 AND NO. 540 OF 2024)**

**(ALL ARISING OUT OF ADMINISTRATION CAUSE NO. 851 OF**

#### **2023)**

- **1. RONELLA FLOWER MAYANJA** - (Suing through her next friend **NAMUWANGA ROSEMARY**) **2. MAYANJA EMMANUEL NELLY ::::::::::::::::::::::: APPLICANTS**

#### (Suing through his next friend **LEONIDAH BUSINGYE**)

#### **VERSUS**

**1. TEMBO ESTHER**

(Administrator of the estate of the late Mayanja Ronald)

- **2. KAKEETO CHARLES** - **3. NKONWA JOSEPH ZZABASSAJJA:::::::::::::::RESPONDENTS**

#### **RULING BEFORE: HON. LADY JUSTICE CELIA NAGAWA**

#### **1.0 Introduction.**

- 1.1 The Applicants brought this Application under **Section 64 (c), (e) and 98 of the Civil Procedure Act, Cap. 282, Section 37 of the Judicature Act, Cap. 16 and Order 52 Rules 1 & 3 of the Civil Procedure Rules SI 71-1** seeking the following orders; - 1. A declaration that the Respondents actions, jointly and severally, are in contempt of the Orders of Court issued on the 15th May, 2024. - 2. An order that the Respondents be jointly and severally committed to civil prison by Court for their conduct in contempt and or defiance of the Orders of Court. - 3. Costs in this Application be provided for.


- 1.2 The grounds of this Application are contained in the affidavit sworn by **Leonidah Busingye** the 2nd Applicant's next friend which are that; - a) The Applicants through their next friend, filed High Court Miscellaneous Application No. 62 of 2024 and Miscellaneous Application No. 540 of 2024 against 1st Respondent seeking several orders in relation to the maintenance of the Applicants as beneficiaries of the estate of the late Mayanja Ronald. - b) On 19th March, 2024, Miscellaneous Application No. 62 of 2024 came up for hearing and the 1st Respondent, through her lawyer, made an oral application for a DNA test to be carried out with a view of determining the paternity of the 2nd Applicant. - c) This Honourable Court granted the application and ordered the exhumation of the remains of the late Mayanja Ronald for the purpose of obtaining samples for DNA tests. - d) The Honourable Court ordered that the DNA tests were to be conducted by the Department of Government Analytical Laboratory (DGAL). - e) This Honourable Court consolidated both applications in (a) above and issued revised orders among others, in the following terms; - i. An order for exhumation of the late Mayanja Ronald to determine parentage. - ii. The human remains of the late Mayanja Ronald to be exhumed to obtain samples for conducting the paternity examination. - iii. The paternity examination to be conducted by the Government Analytical Laboratories, Wandegeya.


- iv. The minors, Mayanja Nelly Emmanuel and Ronella Flower Mayanja through their next friends Leonidah Busingye (biological mother) and Namuwanga Rosemary (biological mother) to be availed for testing within two (2) days of the date of the order. - v. Considering a pending application in the Honourable Court Miscellaneous Application No. 62 of 2024, the samples for Mayanja Nelly Emmanuel and Ronella Flower Mayanja to be collected not later than 22nd May, 2024. - vi. The paternity test results to be submitted to court by 24th June, 2024. - f) Following the said Orders, the 1st Respondent and the 2nd Applicant went to DGAL to initiate the testing process. The parties were referred by DGAL to the Police pathologist at Mulago National Referral Hospital for the exhumation of the body of the late Mayanja Ronald. - g) The police pathologist requested that he had to be given a written consent from the family of the late Mayanja Ronald to proceed with exhumation. - h) The Applicants requested for a consent from the 2nd and 3rd Respondents. In total defiance of the orders of Court, the 2nd and 3rd Respondents, have failed to adhere to the court order. - i) The 1st Respondent, as Administrator of the estate of the late Mayanja Ronald has failed to exercise her authority over her late husband's estate to obtain the required consent from the family, which has in effect hindered the implementation of the Honourable Court's orders. - j) The Respondents are fully aware of the Orders issued on 15th May, 2024 but have defiantly opted to disregard them preventing their implementation.


- k) The conduct of the Respondents makes a mockery of the court process and as such, it is in the interest of justice that the Respondents are penalized with committal to civil prison for their contemptuous conduct. - l) It is in the interest of Justice that this application is granted with costs to the Applicants payable within a specific time frame as Court shall determine. - 1.3 The Respondents were served and the 1st Respondent filed her Affidavit in Reply on 9th September, 2024 while the 2nd and 3rd Respondents filed their Affidavit in Reply on 2nd October, 2024. In summary, the 1st Respondent contended as follows; - a) The powers to handle matters regarding grant of consent to exhume the body of the late Ronald Mayanja vests in the family members in charge of the family and burial ground for the Mutima clan where the late Mayanja Ronald was buried, since she is not in charge of the family affairs and burial ground, she has no powers to grant that consent. - b) The request for family consent of the late Mayanja Ronald to exhume and carry out paternity tests on the body of the late Mayanja Ronald was initiated by herself through her lawyer's M/S Sekabanja & Co. Advocates, which further shows that she was doing what she can to have the court order implemented. On that note, she availed a copy of the email trail to the Applicants' lawyer and the family representative, Dr. Maureen Mayanja serving the letter notifying the family of the Court Order and requesting for the family consent. - c) That despite her aforesaid efforts to forward the Court Order to the family and explanation to the family members that the only option was to implement the Court Order by granting the family consent to exhume the body for DNA testing, the family of the late Mayanja Ronald declined to grant the consent, a fact


which is admitted by the Applicants in paragraph 3 (ix) of the affidavit in support of the application.

- d) That she had been informed by her lawyers' M/S Sekabanja & Co. Advocates that they communicated the family refusal to grant the consent to the Applicants' lawyers and they agreed to meet and determine a way forward, but instead the Applicants decided to bring the application against her which is an act done in bad faith in light of her efforts to have the family understand and grant the family consent to carry out DNA testing on the remains of the late Mayanja Ronald. - e) That she is interested to have DNA proof of the paternity of the Applicants which will enable her distribute the estate to the right beneficiaries and it's wrong to allege that she has violated the very Court Order which she obtained jointly and which is intended to support her work as an administrator by determining the right beneficiaries. - f) That she has not violated the Court Order, instead she has supported the same as aforesaid, and this application ought to be dismissed as against her with costs. - g) That she is opposition of the application for contempt of the Court Order. - 1.4 The 2nd and 3rd Respondents filed an affidavit in reply sworn by the 2nd Respondent with authorization from the 3rd Respondent stating as follows; - a) The 3rd Respondent is his biological brother. - b) The late Mayanja Ronald was their cousin, his father was their paternal uncle. - c) That as 2nd and 3rd Respondents they were never party to the consolidated Miscellaneous Application No. 62 of 2024 and Miscellaneous Application No. 540 of 2024 and neither were they parties to Administration Cause No. 851 of 2023.


- d) That apart from not being parties to the said applications they were never briefed about the applications that had been filed either by the Applicants or the 1st Respondent as the sole Administrator of the estate of her late husband Mayanja Ronald. - e) That when notices from the Applicants Advocates intimating the outcome of the above quoted applications were served unto them in late June, 2024 they were shocked as they did not know anything about the said proceedings. - f) The 2nd Applicant was unsure why his consent was required since he was not an administrator of his late cousin brother's estate and he thought that this was in the capacity and authority of the 1st Respondent as the personal representative. - g) That the foregoing notwithstanding, they had no individual capacity to agree or disagree because the matter of exhumation of the deceased is a very sensitive matter and almost a taboo in their Buganda customs and they had to convene a meeting of the entire family so that the matter is bought to their attention. - h) That on 13th June, 2024, the 3rd Respondent received a notice from the Applicants Advocates, and he wrote stating that he had no authority to agree nor disagree singlehandedly. - i) That they needed sometime to organise a family meeting and also consult a family lawyer but before the meeting was organised and a decision made, this application was filed on the 3rd July, 2024 just after 17 days from the date of service of the notices. - j) That the 2nd and 3rd Respondents are law binding citizens and cannot wilfully disobey this Honourable Court's Orders.


- k) That without prejudice to the foregoing, a meeting of the family was convened and they resolved that because this is a matter intended to uncover the truth as to the paternity and streamlining the estate of their late relative and because the Honourable Court had decreed as such, then they unreservedly grant their consent for the exhumation of the body of the late Ronald Mayanja for the purposes of collecting DNA samples. - l) That each party bears its costs.

## **2.0 Representation.**

- 2.1 The Applicants were represented by Counsel Akram Waniaye of M/S Tayebwa-Sserwadda & Co. Advocates. - 2.2 The 1st Respondent was represented by Counsel Kiwanuka Lawrence of M/S Sekabanja & Co. Advocates, Kampala while the 2nd and 3rd Respondents were self-representing.

## **3.0 Issues to be determined by this Court.**

**1. Whether the application discloses any grounds for contempt of Court?**

## **2. Whether the Applicants are entitled to any reliefs/remedies?**

## **4.0 Submissions by Counsel.**

4.1 I have perused and analysed the Parties' written submissions. I have evaluated and examined the application and the documentary evidence, as required by law and all have been considered in the determination of this Application.

## **5.0 Determination of the Application.**

## **Issue 1: Whether the application discloses any grounds for contempt of Court?**

5.1 The term "contempt of court" has been defined in the case of **Re Ivan Samuel Ssebadduka, Contempt proceedings arising from**


**Presidential Election Petition No.1 of 2020,** which quoted with approval the case of **Johnson Vs. Grant, SC 1923 SC 789 at 79O** in which Lord President (Clyde) inter alia, explained it to mean:

*"... An offence which consists in interfering with the administration of the law; in impeding and perverting the course of justice. It is not the dignity of court which is offended - a petty and misleading view of the issues involved- it is the fundamental supremacy of the law which is challenged."*

5.2 The Court went on to quote the case of **Morris Vs. Crown Office [1970] l ALL ER 1079 at 1O87** where Salmon LJ stated that:

*"The sole purpose of proceedings for contempt is to give our courts the power to effectively protect the rights of the public by ensuring that the administration of justice shall not be obstructed or prevented. This power to commit for what is inappropriately called "contempt of court' is sui generis and has from time immemorial reposed in the judge for the protection of the public."*

- 5.3 Halsbury's Laws of England (Volume 9 (1) Reissue) classified contempt into two; criminal contempt and contempt in procedure, otherwise known as civil contempt. - 5.4 In this instant application*,* I will restrict myself to civil contempt which consists of disobedience to the judgment, orders or other process of court and involving a private injury. - 5.5 **Section 98 of the Civil Procedure Act, Cap. 282** enjoins this Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of court. - 5.6 The power of court to determine matters of contempt is provided for under **Article 28 (12) of the 1995 Constitution of the Republic of Uganda.** The reason why courts will punish for contempt of court


is to safeguard the rule of law which is fundamental in the administration of justice.

5.7 The power of Court to punish for contempt is an important and necessary power for protecting the cause of justice and the rule of law, and for protecting the authority of the court and the supremacy of the law. In the Scottish case of **STEWART ROBERTSON VS. HER MAJESTY'S ADVOCATE, 2007 HCAC63,** Lord Justice Clerk stated that:

*"…contempt of court is constituted by conduct that denotes willful defiance of or disrespect towards the court or that willfully challenges or affronts the authority of the court or the supremacy of the law, whether in civil or criminal proceedings."*

The learned Judge further stated that:

*"The power of the court to punish for contempt is inherent in a system of administration of justice and that power is held by every judge."*

- 5.8 In the determination of this application, there are pre-conditions set out on contempt that must be satisfied before a court can hold the Respondents to be in contempt of a Court Order. - 5.9 The conditions necessary to prove contempt of court were laid out in the case of **Hon. Sitenda Sebalu Vs. The Secretary General of the East African Community Reference No. 8 of 2012 (East African Court of Justice)** to wit; - - 1. the existence of a lawful order; - 2. the potential contemnor's knowledge of the order; - 3. the potential contemnor's ability to comply i.e. disobedience of the Order.

## *The existence of a Lawful Order.*

 - *6.1* **Section 2 of Civil Procedure Act, Cap. 282** defines an "Order" to mean the formal expression of any decision of a civil court which is not a decree. - *6.2* The 1st Respondent was sued in her capacity as the Administrator of the Estate of the late Mayanja Ronald. Letters of Administration vide Administration Cause No.851 of 2023 for the Estate of the late Mayanja Ronald formally of Seguku Village, Katale, Wakiso District were issued on 19th October, 2023. The Letters of Administration were granted to her in her capacity as the widow of the deceased to administer the estate of the late Mayanja Ronald. - *6.3* A grant of Letters of Probate/Administration is a court order as a result of the grantee committing and undertaking to execute the estate and file a full and true inventory of the properties and credits and exhibit the same in court within six (6) months from the date of the grant, and to render a true account of the property and credits within one (1) year or such other time as court shall appoint. - *6.4* Letters of Administration are issued by a court granting a person or persons the authority to manage and distribute the estate of someone who has died intestate. These letters give the appointed individual, known as the administrator, the legal right to act on behalf of the deceased in handling their affairs. - *6.5* Letters of Administration issued by a court are binding court orders that must be adhered to by all relevant parties. Once granted, these letters confer legal authority upon the appointed administrator to manage and distribute the deceased person's estate. This order must be respected and followed, as it carries the full weight of the court's authority. - *6.6* Once the Letters of Administration were issued to the 1st Respondent, the 2nd Applicant filed Miscellaneous Application No. 62 of 2024 for a declaration that the 1st Respondent has neglected the welfare of the 2nd Applicant as a beneficiary of the estate of the


late Mayanja Ronald and that the 1st Respondent be compelled to provide maintenance including school fees, upkeep and provide a preliminary inventory among other orders.

- *6.7* Before this Court could hear the merits of this application (Misc. Application No. 62 of 2024), the 1st Respondent prayed for orders that a DNA examination be conducted and the court granted the prayers sought. - *6.8* Along the way the 1st Applicant filed an application for maintenance as a beneficiary of the estate. The application was consolidated and the orders revised to include the 1st Applicant to have her paternity proved. - *6.9* The revised Order for testing paternity on the Applicants was issued by this Court on 15th May, 2024 in the presence of the Applicants (through their next of friend), the 1st Respondent and their advocates. - *6.10* In this regard, the Court finds that a lawful Court Order existed.

## **The potential contemnor's knowledge of the order.**

*6.11* The 1st Respondent, in her affidavit in Reply admitted to having knowledge of the existence of the Court Order as she specifically stated under paragraph 4 of her affidavit in reply that;

"*That in further reply to paragraphs 3(ix), 3(x), 3(xi), 4, 6 and 7, the request for family consent of the late Mayanja Ronald to exhume and carry out paternity tests on the body of the Mayanja Ronald was initiated by myself through my lawyers' M/S Sekabanja & Co. Advocates, which further shows that I was doing what I can to have the court order implemented. A copy of the email trail to the applicants' lawyer and the family representative Dr. Maureen Mayanja serving the letter notifying the family of the court order and requesting for the family consent and the letter are adduced".*


- 6.12 The 1st Respondent throughout her affidavit in reply avers that she is aware of the court order but instead she has been failed by the family members of the deceased to have it implemented the fact that they have not consented to the exhumation. This information of opposing the exhumation by the family members who include the 2nd and 3rd Respondent among others has been relayed to the Applicants. - 6.13 The 1st Respondent's knowledge of the Court Order has been established in her Affidavit in Reply together with her submissions wherein she contends on page 4 paragraph 3 that she complied with the Court Order by initiating the process of exhuming the body for DNA samples, together with the 2nd Applicant, when they went to the Department of Government Analytical Laboratories (DGAL) and the police pathologist to have the human remains exhumed. - 6.14 On the other hand, the 2nd and 3rd Respondents averred in their Affidavit in Reply under paragraphs 7 and 8 that they were never party to the consolidated Miscellaneous Application No. 62 of 2024 and Miscellaneous Application No. 540 of 2024 and neither were they parties to Administration Cause No. 851 of 2023. That apart from not being parties to the said applications they were never briefed about the applications that had been filed either by the Applicants or the 1st Respondent as the sole Administrator of the estate of her late husband Mayanja Ronald. The 2nd and 3rd Respondents are cousins to the deceased. They are not first immediate family members to the deceased. - 6.15 Upon examination of both applications filed before this court, both the 2nd and 3rd Respondents were not party to these applications. In addition, there is no sworn affidavit of service that the order of court was served upon them in anyway. Lack of evidence that indeed they had any knowledge of the order of court exonerates them.


6.16 I find that the 1st Respondent had knowledge of the existing Court Order besides she was present in court when it was issued.

## **The potential contemnor's ability to comply i.e. disobedience of the Order.**

- 6.17 The ability to comply is directly related to knowledge of the existence of the Court Order. The knowledge precedes the action of obedience. You cannot obey an order unless you are informed of that order. Upon receipt of knowledge of the order, any action contrary to the order is a deliberate act done in contempt of that order. It has been proved above that the 1st Respondent knew about the Court Order. Her actions of attending to the Department of Government Analytical Laboratories (DGAL) solidifies the fact of that knowledge. - 6.18 The 1st Respondent submits that in as much as there was a Court Order, it did not incorporate the family consent as guided by the police pathologist. - 6.19 On 20th March, 2024, Dr. Kalungi Sam, communicated to the advocates of both the Applicants and the 1st Respondent. In the said communication referenced *"Exhumation of the remains of Mayanja Ronald"* he stated that *he was in receipt of the order dated 13th March, 2024 for exhumation of the deceased remains. He guided on the steps that he would follow to have a successful and peaceful exhumation process. The steps included among others, minutes of the family meeting confirming that they will participate in the process, including authorization for the medical team to access the burial grounds and dig the grave will be required prior to the exhumation".* - 6.20 The pathologist communicated the date of the said activity of exhumation as 28th March, 2024. On 15th May, 2024 when the consolidation application was being heard, this information was not brought to the attention of court, that it would be necessary to have


a family meeting and the kind of family that the 1st Respondent held/considered as family to seek Court's guidance.

6.21 Additionally, the 1st Respondent actually already had the 1st Order which is the Letters of Administration. As an administrator of the estate of the late Mayanja Ronald, she had the mantle in her hands and she only had to execute her duties as a personal representative. In case she was faced with any objection from the cousins (2nd and 3rd Respondents) she would have filed a suit against them. Before this Court there isn't any case filed that she had any interference with the Court Order nor in managing the estate of the deceased. Instead, she had the full blessing from the sister of the deceased, Dr. Maureen Mayanja who communicated to her through an email on 18th May, 2024 stating that;

"…*Amidst all the challenges of being an Estate Administrator. Forwarded herein is an email from your lawyer to me. I appreciate that the legal team has brought this to my attention, HOWEVER, the onus is on you to take lead in all processes required to execute the court order - I WILL NOT act as a "middle-man".* She concludes by saying that; "*God Bless You, as you rationally (not emotionally) implement what is best for the Estate"* and signs off.

- 6.22 By way of background, Dr. Maureen Mayanja is the only biological sister to the deceased, the Late Mayanja Ronald. In her email she acknowledges the 1st Respondent as an Administrator of the Estate of the Late Mayanja Ronald with all the mandate to execute her duties as an administrator. - 6.23 The 1st Respondent did not file any suit against the said family of the late Mayanja Ronald to claim that as an administrator she was faced with any interface/obstruction to have the human remains exhumed. I do not have on court record any communication calling for a meeting, or requesting for one from the 2nd and 3rd Respondents, or signed minutes of any meeting where the 1st


Respondent was in attendance to implement the Court Order or have the family participate in the exhumation exercise. Besides the Court Order overrides any other prerequisites if indeed as an administrator she had taken heed.

- 6.24 The 1st Respondent despite having knowledge of the communication from the police pathologist did not seek any Orders for protection from what she considers the family of the late Mayanja Ronald meaning that she was fully knowledgeable that as an administrator she was in charge. - 6.25 The 2nd and 3rd Respondents on the other hand averred under paragraph 15 of their affidavit in reply that; "*That without prejudice to the foregoing, a meeting of the family was convened and they resolved that because this is a matter intended to uncover the truth as to the paternity and streamlining the estate of their late relative and because the Honourable Court has decreed as such, then they unreservedly grant their consent for the exhumation of the body of the late Ronald Mayanja for the purposes of collecting DNA samples".* - 6.26 According to the 2nd and 3rd Respondents, they were fully informed of the Court Order on 13th June, 2024. The Applicants advocate served the 3rd Respondent with a copy of the Court Order who also informed the 2nd Respondent about the Court Order. The 2nd Respondent called a meeting to discuss the issue of exhumation with the children of the deceased who had been introduced to the family one of whom was named "Marie Noeline Nanziri" (the 1st Applicant). However, no signed minutes and resolutions were filed - 6.27 It is now over five (5) months and the 1st Respondent has not complied with the order of court. The 1st Respondent has raised all sorts of excuses to wit; the family of the late Mayanja Ronald has not consented to the exhumation. - 6.28 It is worth noting that the 1st Respondent made this application for exhumation as a widow and administrator of the estate of the Late


Mayanja Ronald to enable her distribute the estate to the rightful beneficiaries.

6.29 In the Supreme Court case of **Betty Kizito Vs. Dickson Nsubuga & 6 Ors, Civil Application No.25 & 26 of 2021 (Arising from Civil Appeal No. 08 of 2018),** it was stated that;

> "*The remedies granted by court to correct wrongs occasioned to the successful litigant need to be treated with the seriousness they deserve. Litigants cannot be permitted the discretion to choose which orders to comply with and how to comply with the said orders. To allow court orders to be disobeyed would be to stride the road towards lawlessness and the risk of derailing the rule of law. A stitch in time saves nine. This is so true regarding the rule of law. If violations of court orders continue to go unpunished, then we run the risk of reversing the gains we have made towards respecting the sanctity of court orders, indeed, is what amounts to contempt of court. We therefore agree that the respondents acted contemptuously not simply towards a court order but to court and the administration of justice in general."*

*6.30* Similarly, in **T. N. Gadavarman Thiru Mulpad Vs. Ashok Khot and Anor [2006] 5 SCC***,* the Supreme Court of India also emphasized on the dangers of disobeying Court orders, thus:

*"Disobedience of this Court's order strikes at the very root of the rule of law on which the judicial system rests. The rule of law is the foundation of a democratic society. Judiciary is the guardian of the rule of law. Hence, it is not only the third pillar but also the central pillar of the democratic State. If the judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the Courts have to be respected and protected at all costs. Otherwise, the very corner stone of our constitutional scheme will give way and with it will*


*disappear the rule of law and the civilized life in the society. That is why it is imperative and invariable that Court's orders are to be followed and complied with."*

- 6.31 The seriousness surrounding contempt of court orders was considered in **Hadkinson Vs. Hadkinson [1952] ALLER, Romer L. J relied on the case of Church Vs. Cremer (1 Coop Temp Cott 342)** and stated that *"A party who knows of an order whether null or valid, regular or irregular, cannot be permitted to disobey it…as long as it existed".* - 6.32 Disagreement with a Court Order does not justify disobeying it. In this case the 1st Respondent obtained Letters of Administration which are legally binding. Regardless of personal opinions or objections, compliance with such orders is mandatory. Failure to adhere to a Court Order tantamount to contempt of court. If there are valid concerns or disagreements with a Court Order, the appropriate course of action is to seek legal recourse through the proper legal channels such as a suit. - 6.33 The 1st Respondent seems to have been adamant in adherence with the Court Order. For the foregoing reasons, I find that the 1st Respondent is in contempt of the Court Order issued on 15th May, 2024 and she is therefore punishable. The 1st Respondent is hereby committed to civil prison for a period of three (3) months immediately.

## **7.0 Conclusion.**

In the final result, the Court allows this Application ordering as follows;

- 1. The 1st Respondent is hereby found to be in contempt of the Court Order issued on 15th May, 2024. - 2. The 1st Respondent is committed to civil prison for 3 months for her contemptuous actions.


- 3. The Court Order issued in Consolidation Miscellaneous Application No. 062 of 2024 and Miscellaneous Application No. 540 of 2024 is still in existence until fully implemented. - 4. The 1st Respondent shall bear the costs of this application.

I so Order.

## *Dated, signed and delivered electronically this 16th day of October, 2024***.**