[2024] UGHCLD 229

# **THE REPUBLIC OF UGANDA**

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

## **(LAND DIVISION)**

**MISCELLANEOUS APPLICATION NO 0641 OF 2024**

**(Arising from Miscellaneous Application No. 228 of 2022)**

**(Arising from Civil Suit No.112 of 2022)**

**NYANZI ABUBAKER ALIAS BAKER :::::::::::::: APPLICANT**

**VERSUS**

**MUGERWA DENIS**

**PRETTY MAKUMBI**

**ANNET NANYUNJA**

**NASSIM ESTATE**

**DAN SEBUNYA**

**BUKENYA PATRICK**

**EDITH AHEREZA**

**DENIS KITIMBO**

**FIONA NALIKKA ::::::::::::::::::::::::::::: RESPONDENTS**

**BEFORE HON. LADY JUSTICE NALUZZE AISHA BATALA**

### **RULING**

## *Introduction;*

- 1. This is an application by Notice of Motion brought under Section 14 and 33 of the Judicature Act, Section 98 of the Civil Procedure Act and Order 41 Rule 2(3), 52 rule 1 and 3 of the Civil Procedure Rules for orders that; - i) The Respondents be held in contempt of a Court Order in High Court Miscellaneous Application No.228 of 2022 (NYANZI BAKER VS DENIS MUGERWA) - ii) The Respondents pay Exemplary Damages of UGX 100,000,000/= and General Damages of UGX 50,000,000/= to the Applicant for contempt of Court. - iii)The Respondents be directed to pay a penalty of UGX 50,000,000/= into court for violating its orders. - iv) The Respondents be committed to civil prison for contempt of a court order. - v) The costs of this Application be paid by the Respondents.

*Applicant's evidence;*

2. The grounds of the Application are contained in the Application and supporting Affidavit of the Applicant which briefly are;

a) That the Applicant filed MA No.228 of 2022 in this Honorable Court and court issued Orders of a Temporary Injunction maintaining the status quo of the suit Property located in Kiyaga Zone Bwaise Kawempe.

b) That court made the following orders;

i) That the Respondent/ Defendant is restrained from trespassing on the Applicant's property located in Kiyaga Zone Bwaise Kawempe.

ii)That the Court also directed that the Respondent is restricted from interfering with the Applicant's tenant's/ collecting rent.

iii) That the Court ordered the Respondent to stop including the Applicant's property as part of the Estate of their late mother NAKIMULI REHEMA until the main suit is heard and determined.

iv) Costs of the application shall be in the cause.

c) That the Respondents have since illegally and in contempt of court orders continued to collect the Applicant's rent, trespassing on the suit land and the respondents have not at any time allowed the Applicant to enjoy the fruits of his judgement.

d) That the 5th, 6th, 7th, 8th ,9th and 10th Respondents have refused to pay the Applicant's rent for three years and claim to be paying someone else.

e) That the Respondents were claiming to have gotten authority from the Administrator General whom the Applicant approached and directed that let all parties respect the Court order since court takes precedence over all competing directives.

f) That once the Applicant obtained the copy of the order, I engaged police to execute the Order and the Order was read and interpreted to everyone.

g) That he went as far as involving the IGP of police who wrote a letter ordering that the order be read to all parties and required compliance.

h) That the IGP went ahead and told the parties involved that if anyone is aggrieved by the court order, they should appeal against it in courts of law.

i) That the Police went over the suit land and read over the order to the area tenants in the presence of the Respondents, LC1 Chairperson, all tenants and the DPC but still the Respondents have indicated that they are not willing to adhere to court orders but have continued to violate the same. j) That the above actions are illegal and in contempt of court order.

k) The land was at the time of issuing the said order and for over the years remained vacant and undeveloped but only occupied and utilized by the Applicant and several licenses to whom he had granted the permission to use the land before he filled the main suit and before the granting of the injunction by court.

l) That the acts of the Respondent constitute contempt of a court order, altering the status quo and alienation of the Applicant's land which may render the Judgement of court in case the same is in favour of the Applicant and / or useless.

### *Respondent's Evidence;*

- 3. With authority from all the Respondents in this Application to swear the Affidavit on their behalf Mugerwa Denis the 1st Respondent swore and filed his Affidavit in Reply to the Application in which he stated; - i) That this Application is misleading, based on falsehoods, incompetent, baseless and abuse of court process, devoid of any merit, intended to mislead court and he prays that the same is struck off the record. - ii) That the entire Affidavit in support sworn by the Applicant Nyanzi Abu baker Alias Baker is tainted with deliberate lies, peddled with malicious falsehoods and excuses with a view of hoodwinking and misleading this Honorable Court and for those reasons he prayed that the same should be struck off court record. - iii)That the contents of paragraph 1 of the Affidavit in support of the Application are admitted while contents of paragraph 2, 3, 4, 5, 6, 7,8 ,9 ,10,11,12 and 13 of the Affidavit in support of the Application are denied.

- iv) That the Application lacks merit as the order dated 21st June 2022 upon which the Applicant is relying on to seek for an order for contempt of court in the matter before court is nonexistent as the same was recalled, cancelled, set aside by court where a new order was issued dated 28th June 2022 by the same judicial officer and appended her signature on it. - v) That having cancelled the said order, court issued a new Temporary Injunction order signed on 28th June 2022 inter alia doth issue maintaining the status quo of the suit property located at Kiyaga Zone, Bwaise Kawempe until the final determination of Civil Suit No. 112 of 2022 and the Respondent compelled to refrain from interfering with the Applicant's tenants on the suit property and that the Applicant and his counsel are fully aware of the correct order but are deliberately misleading court by attaching a non-existing order. - vi) That the Applicant mislead the Administrator General and Uganda Police by presenting an order that was cancelled and expunged from court record.

- vii) That the suit property is in the same state as it was at the time when this Honorable Court issued the Court order on 28th day of June 2022. - viii) That the Applicant together with the 1st, 2nd, and 3rd Respondents are siblings and that the status quo has been maintained since the Administrator General made a temporary distribution of the suit property and each sibling has their own share but the Applicant forcefully took the 1st Respondent's share. - ix)That the 1st, 2nd and 3rd Respondents have never collected rent and/ confused the Applicant's tenants as they have maintained the status quo since the temporary distribution of the state to all the beneficiaries by the Office of the Administrator General and the court order which the 1st, 2nd and 3rd Respondents together with their respective tenants to wit; the 5th, 6th, 7th and 8th Respondents have fully respected but the 9th Respondent vacated the premises many months back. - x) That there are no illegal actions or contempt of court as alleged by the Applicant as the Respondents have never

abused any Court Order and not in contempt of the court order granted on the 28th day of June 2022 by this Honorable Court as the 5th, 6th ,7th ,8th and 9th Respondents pay rent as directed by the Administrator General which order has never been set aside or revoked.

#### *Representation;*

- 4. The applicant was represented by M/S Hills Advocates & Solicitors whereas the 1st – 9th respondents were represented by M/S Nabakiibi, Kanyago & Co. Advocate. - 5. Both the Applicant and the 1st -9th Respondents filed written submissions that have been relied upon in the determination of this matter.

#### *Issue for determination;*

*Whether the Respondents are in contempt of a court order?*

#### **Applicant's Submissions;**

6. Counsel for the Applicant submitted that contempt of court has been well stated in the case of **Megha Industries**

**Ltd Vs Comform Uganda Ltd HCMC No.21 of 2014**

where the Judge held that contempt of court exists where there is a lawful court order, and the potential contemnor must have been aware of the court order and failed to comply with the order. Counsel submitted that the Respondents indeed are clearly aware of the order which was read to them in the language they understand.

- 7. Applicant's counsel further submitted that the 1st, 2nd, 3rd and 4th Respondents have gone ahead to even admit in courts of law that they are the ones collecting the Applicant's rent. - 8. A case in point being recently in Matugga court where the 2nd Respondent filed an affidavit on the Applicant's files for distress for rent that she is the one collecting the Applicant's rent. Further that the 5th, 6th, 7th, 8th, 9h and 10th Respondents admitted in their affidavits in reply that they stopped paying rent sometime back and have chosen to pay another person without the Applicant's will and consent or any court order to that effect. - 9. Counsel cited the case of **Mrs Geraldine Busulwa Ssali Vs National Social Security Fund & 2 Others MA No.116 of 2016** at page 13-14 where Justice Stephen Musota held

that; "I *will however add that a party who takes deliberate steps to undermine the court process by deliberately altering the status quo when he or she is aware of an ongoing court process and is participating therein and is aware of the prayers being sought in the proceedings should be held in contempt of court.*

10. Counsel further relied on the case of **Church Vs Cremer (1 Coop Temp Cottb 342)** where it was held that: -"*A party who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it. It would be most dangerous to hold that suitors or their solicitors could themselves judge whether the order was null and voidwhether regular or irregular. That they should not come to the court and take it up-to themselves to determine such question. That a course of a party knowing of an order, which was null or irregular and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed."*

## **Respondent's Submissions;**

11. Counsel for the Respondent submitted that in an action for civil contempt, the Applicant has to prove the existence of a lawful order, the potential contemnor knowledge of the order, the potential contemnor ability to comply and the potential contemnor failure to comply.

- 12. Counsel submitted that the 1st, 2nnd, 3rd, 4th, 5th, 6th, 7th, 8th and 9th Respondents have not filed or neglected to comply with order. - 13. That instead the Respondents have facilitated the enforcement of the order that the Applicant does not seem to be interested in enforcing. There is absolutely nothing that the 1st Respondent and the 2nd, 3rd, 4th, 5th,6th 7th, 8th and 9th Respondents have done that is contrary to the order, rather the Applicant seeks to change the status quo of the suit property. - 14. Counsel further submitted that there is no evidence to prove that there is collection of rent and/ or confusion of the Applicant's tenants after the Order was made. All the Applicant has done is to recycle photographs when they were taken. According to the 1st Respondent's evidence all the photographs were taken long before any order was issued.

- 15. Therefore, from a purely factual standpoint, no collection of rent and/or confusion of the Applicant's tenants was done after the issuance of the Court Order. - 16. Counsel submitted that in this Application, there is no dispute that a court order exists signed on the 28th June 2022. He further stated that all Respondents know of the order or that there is inability on their part to comply with the same. - 17. Counsel submitted that this Application lacks merit as the order dated 21st June 2022 and signed on 22nd June 2022 upon which the Applicant is relying on to seek for an order for contempt of court in the matter before this court is nonexistent as the same was recalled, cancelled, set aside by court where a new order was issued and signed on 28th June, 2022 by the same judicial officer. - 18. Counsel submitted that there is no such existent order like the one attached by the Applicant as his Annexure A as the Applicant puts it and that this appears to be a deliberate misdirection to confuse court yet the Applicant and his Counsel are well aware of the existence of the correct order.

# **Applicant's Submissions in Rejoinder;**

- 19. In rejoinder, the Applicant's counsel submitted that the Respondents are not denying the existence of a court order vide Miscellaneous Application No.228 of 2022 Dated 22nd Day of June 2022, issued in the presence of Nabakiibi Faridah Counsel for the Defendant and both parties, the same counsel is alleging that the order was amended although she does not explain under what law or order of court she proceeded to have the same order Amended. - 20. Counsel stated that this was illegal in itself as Her Worship Oyo Mariam Okello became functus officio after signing the order dated 22nd Day of June 2022, this order could only be varied or overturned by either an appeal, review or revision, therefore it was un professional of counsel for the Respondent to just re type the order and have it signed again on the 28th day of June 2022, however much nothing has changed. - 21. Therefore, the court ruling and orders there in Dated 22nd day of 2022 still stands until its overturned, revised or reviewed according to the law.

- 22. Counsel submitted that the major reason for the above Application was to stop the interference with the Applicant's tenants and inclusion of the Applicant's property in estate of the late Nakimuli Rehema until court has determined the main suit, which is about determination of whether the suit property forms part of the Estate of the late Nakimuli Rehema. - 23. Counsel stated that in response to counsel for the Respondents allegation that the order dated 22nd June 2022 was recalled is a total lie and she does not have any evidence to show that the said order was recalled and reviewed by the same authority. - 24. That in any case if she wasn't satisfied with the court orders it was incumbent upon counsel for the Respondent to either appeal or apply for review of the said order. - 25. The Applicant does not know the stem of the 2nd order in possession of counsel for the Respondent and in any case; it is the same order as the first order but different in wording and does not change anything.

#### **Analysis and Determination of the issue by court;**

- 26. In the case of **Uganda Super League v Attorney General Constitutional Application No.73 of 2013 Justice Kiryabwire** citing the Black's law Dictionary 7th Edition defined Contempt of courts as; "Conduct that defies the Authority or dignity of court. - 27. The power to punish for contempt of court is a special jurisdiction which is inherent in all courts for the protection of the public interest in the proper administration of justice, as observed by Lord **Atkin in Andre Paul Terence Ambar Appeal No. 46 of 1935 –vthe Attorney General of Trinidad and Tobago (Trinidad and Tobago) [19361 1 All ER 704, [19361 AC 322.** - 28. Before any action can be found to amount to contempt of court, the following principles have to be established: - i) Existence of a lawful order. - **ii)** Potential contemnor knowledge of the order. - **iii)** Potential contemnor failure to comply, that is, disobedience of the order. - 29. To be found in contempt, it must be proven that the party accused: (i) knew the order existed, (ii) had the ability

to comply with the order but violated it knowingly, and (ii) lacks just cause or excuse for the violation. Civil contempt is a strict liability violation; all that must be proved is that the order was served on the respondent, and that a prohibited action (or a failure to carry out an order) occurred.

### **Existence of a Lawful Order;**

30. In the instant matter, the Applicant avers that this Honorable Court issued an order for temporary injunction issued on the 21st day of June 2022 and signed on the 22nd day of June 2022. Under this order, court made the following orders;

*i)That the Respondent/ Defendant is restrained from trespassing on the Applicant's property located in Kiyaga Zone Bwaise Kawempe.*

*ii)That the Court also directed that the Respondent is restricted from interfering with the Applicant's tenant's/ collecting rent.*

*iii) That the Court ordered the Respondent to stop including the Applicant's property as part of the Estate*

# *of their late mother NAKIMULI REHEMA until the main suit is heard and determined.*

## *iv) Costs of the application shall be in the cause.*

- 30. The Applicant further avers that the Respondents have since illegally and in contempt of court orders continued to trespass on the suit property and collect rent and confuse the Applicant's tenants. - 31. However, the Respondents' argument is to the effect that the Court order which the Applicant is relying on in this Application is nonexistent as it was recalled, cancelled and set aside by court where a new order was issued and signed on the 28th day of June 2022 by the same Judicial officer. It was ordered that - *i) A temporary injunction order doth issue maintaining the status quo of the suit property located at Kiyaga Zone, Bwaise Kawempe until the final determination of Civil Suit No.112 of 2022.* *ii) The Respondent/defendant is compelled to refrain from interfering with the Applicant's tenants on the suit property.*

#### *iii) Costs of the Application shall be in the cause.*

32. It is noted with clarity that this Court issued a court order dated **22nd June 2022** before H/W Oyo Miriam Okello. As submitted by counsel for the Applicant, it is noted that the Respondents are not denying the existence of court order vide Miscellaneous Application No.228 of

#### **2022 dated 22nd day of June 2022**.

- 33. However, the Respondents claim and aver that on the 28th day of June, 2024, the same Judicial Officer issued a new court order in the same matter and that means that the court order dated 22th June 2022 was cancelled and is nonexistent as it was replaced with a new court order dated 28th June, 2022. - 34. However, in all evidence submitted by the Respondents, they have not furnished any proof showing this Honorable court that the order dated 22nd June, 2022 was recalled and cancelled and further on what grounds it was recalled and cancelled.

- 35. The Respondent's claims that the order dated 22nd June, 2022 is nonexistent are baseless and cannot be relied on. The order on court record is the order dated 22nd June 2022 that is attached by the Applicant as Annexure A. - 36. The Respondent's claims and submissions that the Applicant has relied on a non-existent court order to bring this Application are baseless. - 37. In the case of **Hadkinson vs Hadkinson (1952] All ER,** Romer LJ relied on the case of **Church v Cremer (1 Coop Temp Cott 342**) where it was held that; "*a party who knows of an order is whether null or valid, regular or irregular, cannot be permitted to disobey it.as long as it existed"* - 38. Therefore, it is not in dispute that there existed a lawful court order dated 22nd June, 2022.

#### **Potential contemnor knowledge of the order.**

- 39. To prove contempt of a court order, the Applicant should prove that the Respondents were aware of the existing court order. - 40. In the case of **Hadkinson vs Hadkinson (supra), Romer LJ relied on the case of Church v Cremer (1**

**Coop Temp Cott 342)** where it was held that; "*a party who knows of an order is whether null or valid, regular or irregular, cannot be permitted to disobey it as long as it existed". That a lawful order existed against the Respondent. Secondly, that they have to prove that the potential contemnor has knowledge of the order.*

- 41. The Court order dated 22nd June 2022 was issued in the presence of Counsel Nabakiibi Faridah for the Respondents, in the presence of the parties and in absence of the Applicant's Counsel. - 42. It is evident that the respondents had effective notice of the existence of the clear court order for a Temporary injunction as it was issued in their presence.

# **Potential contemnor failure to comply, that is, disobedience of the order**.

*43.* As stated by Justice Stephen Mubiru in the case of **Odoi** Odome v Uganda Electricity Generation Company (Misc Application No.1088 of 2022), "*The applicant must state exactly what the alleged contemnor has done or omitted to do which constitutes a contempt of court with sufficient particularity to enable the respondent*

*meet the accusation. An element of contempt is that the conduct in question must have been willfully committed. Intent may be inferred from the circumstances accompanying the conduct and need not be proven directly. There should be sufficient evidence to show that the alleged contemnor intended to embarrass, hinder, or obstruct the trial court. It must be made clear what the respondent is alleged to have done and that constitutes a willful (rather than casual, accidental or unintentional) breach of an order or undertaking by which a person is bound and of which the person has notice (see Australasian Meat Industry Employees Union v. Mudginberri Station Pty Ltd (1986) 161 CLR 98; 60 ALJR 608; 66 ALR 577). The test to be applied in determining whether or not the conduct constitutes a contempt of court is the tendency of that conduct to obstruct the administration of justice. There is no need of proof of actual obstruction resulting from an act, but only the character of the act done and its direct tendency to prevent and obstruct the discharge of judicial duty."*

44. The Applicant has furnished evidence to show that the Respondents have continued to disobey the court order issued by court.

45. The orders issued by court were;

i)That the Respondent/ Defendant is restrained from trespassing on the Applicant's property located in Kiyaga Zone Bwaise Kawempe.

ii)That the Court also directed that the Respondent is restricted from interfering with the Applicant's tenant's/ collecting rent.

iii) That the Court ordered the Respondents to stop including the Applicant's property as part of the Estate of their late mother NAKIMULI REHEMA until the main suit is heard and determined.

iv) Costs of the application shall be in the cause.

46. Court passed an order that the Respondent/Defendant in this case the 1st Respondent Mugerwa Denis is restrained from interfering with the Applicant's tenants/collecting rent.

- 47. The Applicant furnished evidence and attached copies of receipts showing that the Respondents have gone ahead to collect rent despite of the existing court order. - 48. Furthermore, the Respondents stated in paragraph 15 and 16 of their Affidavit in reply that the 1st, 2nd and 3rd Respondents have never collected rent/ confused the tenants as they have maintained the status quo since the temporary distribution of the Estate by the Administrator General. - 49. That however, after the distribution, the Respondents notified the tenants who duly complied and since then they have remitted rent to their respective land ladies/ landlord in compliance with the administrator general's order. - 50. The Applicant has furnished evidence to prove that the Administrator General was aware of the court order which he acknowledged and established that this court order takes precedence of all other competing directives by any other authority. Therefore, the Respondents cannot claim that they were following the Administrator's General's orders despite the existence of a lawful court order.

51. An Order of Court remains valid even if the parties find it unreasonable or erroneous, parties are not at liberty to disobey such an order. I therefore agree with the submissions of learned counsel for the Applicant and declare the Respondents contemnors.

#### **What Remedies are available to the Parties?**

- 52. Having found that the 1st, 2nd, 3rd, 4th, 5th, 6th ,7th 8th and 9th Respondents are in contempt of the court order dated 22nd June, 2022 and it is hereby ordered that; - i) The 1st, 2nd, 3rd, 4th, 5th, 6th ,7th 8th and 9th Respondents are hereby compelled to obey Court Orders in Miscellaneous Application No. 228 of 2022 dated the 22nd day of June, 2022. - ii) It is also ordered that the 1st, 2nd, 3rd, 4th, 5th, 6th ,7th 8th and 9th Respondents shall altogether pay a fine of UGX 5,000,000 (Five million shillings only) for their contempt of Court Orders; - iii)I find no basis to award exemplary and general damages to the applicant. - iv) There is no order as to costs of the application.

**I SO ORDER**.

# **…………………………..**

#### **NALUZZE AISHA BATALA**

### **Ag. JUDGE**

## **27th/09/2024**

**Delivered on the 27th of September, 2024 electronically via ECCMIS.**