[2025] UGHCLD 119

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

### **LAND DIVISION**

### **MISCELLANEOUS APPLICATION NO. 2816 OF 2024**

(ARISING FROM CIVIL SUIT NO. 507 OF 2017)

# **1. SEBIRAGALA EDWARD SENIOR :::::::::::::::::::::::::::::::::::: 2. MAWEJJE MIKE JOSEPH**

### **VERSUS**

### **1. SEBIRAGALA EDWARD JUNIOR**

**2. MAWANDA ROBERT::::::::::::::::::::::::::::::::::::**

# **BEFORE: HON. LADY JUSTICE CHRISTINE KAAHWA RULING**

### **Introduction**

This application is brought under Section 64 (c) and (e) and section 98 of the Civil Procedure Act, Cap 282, Section 33 of the Judicature Act, Cap 16 and Order 52 Rules 1, 2 and 3 of the Civil Procedure Rules for orders that;

1. The Respondents be detained in civil prison for a period of six months, or such other duration as the Court may direct, and also be ordered to pay such fine as the Court deems appropriate, for acting in contempt of the Interim Order of this Honorable Court made on the 20^th day of December 2017 in Miscellaneous Application No. 526 of 2017.

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2. Costs of this Application be provided for.

The grounds of the application are that:

- 1. That the Applicant filed Civil Suit No.507 of 2017 seeking, inter alia, a permanent injunction against the 1^st Respondent and his agents, and also filed a substantive application for a temporary injunction against the Respondent and his agents, to wit Misc. Application No. 1525 of 2017 and an Application for an interim order, to wit Misc. Application No. 1526 of 2017. - 2. On 20^th December 2017, the interim Order sought was granted, maintaining the status quo and, in particular, restraining the 1^st Respondent, his agents or servants from subdividing, developing, selling, putting to waste and or interfering with the Applicants' use and quiet enjoyment of the land comprised in Busiro Block 359 Plot 2684 land at Nakatema, Wakiso District until the final determination of the main Application for a temporary injunction. - 3. In total defiance of the said order, the Respondents have been effecting, and have actually accelerated the process of construction, and carrying out further developments onto the suit land which is still going on in broad daylight and at night and over the weekends. - 4. The said conduct amounts to contempt of Court, by reason whereof the Applicants have suffered injury.

The grounds of this application are premised in the affidavit of Mawejje Robert whose averments I shall not repeat.

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### **REPLY.**

The 2^nd Respondent deposed an affidavit in reply on the 24^th March 2025. He avers that he was not served with the application but got to know about it from the Land Division WhatsApp Group; on 4^th May 2017, the Respondents entered into and executed a Memorandum of Understanding in respect to the kibanja on land comprised in Busiro Block 359 Plot 2684 and he took possession thereafter; at the time of entering into the Memorandum of Understanding he was not aware of any pending case against the 1^st Respondent; that on the 20^th December 2017 when the Court issued the interim order he was already in possession of the suit kibanja; the Applicant has never been in possession of the suit Kibanja and that he is not a party to the civil suit of any other applications for injunctions and he is not an agent or servant of the 1^st Respondent and he is not aware of any Court order in respect of the suit property.

Further, he contended that; the Applicants interfered with the status quo when he proceeded with sub diving the suit land into Busiro Block 359 Plot 5324 creating Plot 2684; the suit land has since change to Plot 5324 and yet the Court order describes the suit property as Plot 2684 and that he has never received any communication from Kyengera Town Council team or the Uganda Police directing him to vacate the Kibanja or cease doing any activity thereon. Lastly he prayed that the application be dismissed.

The 1^st Respondent did not file reply to this application.

### **Representation and hearing.**

The Applicant was represented by SHIELD Advocates and the 2^nd Respondent by M/S Kaweesa & Co. Advocates.

The Applicants and the $2^{nd}$ Respondent filed written submissions.

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#### **Issue for determination.**

Whether the Respondents' actions amount to contempt of Court.

#### **Resolution of the issues.**

In Betty Kizito vs Dickson Nsubuga & 6 others (Civil Application Nos.25 & 26 of 2021 arising from Civil Appeal No.8 of 2018), the Supreme Court addressed the nature of contempt proceedings as well as the distinction between criminal and civil contempt.

The Justices held that contempt proceedings are between the alleged contemnor and the court. The party who takes out a motion for contempt is merely relying information to the court about an alleged contempt but the actual proceedings are really between the court whose orders have been defied and the contemnor.

Further, the Justices ruled that the key distinction between criminal contempt and civil contempt is that the former happens in the presence of court when a contemnor interferes with the Court's ability to function properly. Criminal contempt, the Court ruled, that it may take the form, inter alia, of yelling at a judge presiding over a case, insolvent language and assaulting persons in the Courts.

On the other hand, civil contempt occurs outside the Court's realm and usually takes the form of disregarding Court orders and judgments. Civil contempt must be brought to the Court's notice by the parties. The Justices ruled that the applicant or litigant who brings alleged contemptuous conduct to the attention of Court does not become party to the proceedings as he/she merely assists Court by furnishing information about the alleged contempt. The Court approved of the ratio descidendi of Mubiru J in Florence Dawaru vs Angumale Albino & Another, **Misc. Application 96 of 2016.**

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Black's Law Dictionary, 10^th Edition page 385, defines civil contempt as the failure to obey a Court order that was issued for another party's benefit. A civil contempt proceeding is coercive or remedial in nature. The usual sanction is to confine the contemnor until he complies with the Court order.

Given that the Constitution has vested judicial power in the people, the public expects Court orders to be obeyed, and Court orders should not be given in vain. Civil contempt therefore serves the object of empowering Courts to enforce court orders and punish those that willfully and unlawfully disobey it.

In Sempebwa and Others vs. Attorney General [2019]1 E. A 546 the Supreme Court set down the ingredients of civil contempt, which an applicant must prove in order to succeed namely:

- $i$ . the order; - $\ddot{1}$ . service or notice thereof; - iii. non-compliance; and - willfulness and mala fide beyond reasonable doubt. iv.

Therefore once the Applicant has proved the first three requisites of civil contempt, the Respondents will bear the evidential burden in relation to willfulness and mala fides. If the respondent fails to advance evidence that establishes a reasonable doubt as whether non-compliance was willful and mala fide, then contempt would have not been established beyond reasonable doubt. A declaratory and other appropriate remedies may then be available to the civil Applicant, on proof, but on a balance of probabilities.

It should be noted that even where an applicant satisfies all the requirements of civil contempt, a Court may still decline to make a finding of contempt, where the alleged contemnor shows that he/she acted in good faith and was taking reasonable steps towards compliance with the order.

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With the above in mind, I will proceed to resolve the issues.

From the onset, I observe that the 1^st Respondent did not contest the application as he did not file any affidavit in reply. He is therefore presumed to have admitted the contents of the affidavit in support of the application. see Lubuka v Nsobya Misc. Application 358 of 2016. It is not contested that there was a Court order issued by Court on the 20^th December 2017 maintaining the status quo of the land comprised in Busiro Block 359 Plot 2684 land at Nakitema Wakiso District. The $2^nd$ Respondent's defence in regard to the impugned order is that the order read Busiro Block 359 Plot 2684 and yet by 20^th December the land had been subdivided by the Applicants and the suit land took on a new plot number to wit; Plot 5324. However, the averment to the change in plotting as a result of sub division was not proved by any documentation.

Perusal of the Order shows that indeed the injunctive or restraining Order was for Plot 2684. The order was issued by HW Justine Atukwasa on the 13^th December 2017 and sealed by the Court on 20^th December 2017. It is notable that the 2^nd Respondent was not a party to the application.

The record of the Court shows that on 16^th May 2016, the 1^st Applicant sold part of the suit property to the $2^{nd}$ Applicant. The portion which was sold measures 62 ft x 130ft x55ft x130ft approximately 13 decimals. Subsequently, on the 8^th April 2017 the parties entered into another agreement for the sale of 60feetx 100feet.

On the 4^th May 2017, the 1^st Respondent sold part of the suit property to the 2^nd Applicant. The face of the agreement at page 1 describes the agreement to be in respect of "Kibanja situate on land comprised in Private Mailo, Busiro Block 359 *Plot 2684.* "The acreage sold is 120 feet x 30 feet x 25 feet.

From the above therefore, it is clear that the status quo at the time of the interim order was that part of the suit property had been sold to $2^{nd}$ Applicant.

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In regard to the purported sale between the Respondents, the 2^nd Applicant stated that this was done to circumvent the conviction of the criminal Court. What is clear to the Court is that the 1^st Applicant is a registered proprietor of the suit land, a fact which is not contested by the $1^{st}$ Respondent. The $1^{st}$ Respondent's claim is that the suit land belongs to him by virtue of a gift inter vivos.

The annexures to the Application show that the 1^st Respondent was convicted vide NSA-CO-0252 of 2016 Uganda versus Sebiragala Edward of criminal trespass on the 23^rd January 2017. I find it rather strange that the 1^st Respondent would execute a Memorandum of Understanding after the conviction of trespass on the same property. It is therefore explicit that the $1^{st}$ Respondent defied the findings of the Court which found him to be a trespasser by selling the portion of the land.

The conduct of the 1^st Respondent in my view, lays credence to the claim by the Applicants that the Memorandum of Understanding was backdated in a bind to render the Orders of court nugatory. It is also notable to say that the 1^st Respondent is disposing off property that at this point is registered in his father's (1^st Applicant's name).

The 2^nd Respondent states that he was not a party to any of the proceedings and that he bought the land after doing due diligence. That version of due diligence, in my opinion is deficient. The title to the said land is not in the names of the purported seller but in the names of Sebiragala Edward who was registered in 29^th July 2010. The 1^st registration on the title shows that the administrators of the estate of the late $B$ . Nsubuga. The 2^nd Respondent should have inquired from the administrator of the estate, John Kiribukka, who the registered proprietor before entering the purported Understanding.

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The averments that the $2^{nd}$ Respondent was in use and possession of the suit property therefore reeks dishonesty as the 1^st Respondent had already been convicted of trespass and had he consulted with the local leaders and neighbors he would have found out about the conflicts on the suit property.

I note that the Memorandum of Understanding even though witnessed does not state the name of the witness. In light of the above I find that the both Respondents were aware of the injunctive Order of the Court.

As earlier opined the 1^st Respondent did not oppose the application. The order of the court shows that it was made in the presence of both counsel. Suffice to note that the proceedings in NSA-CO-0252 of 2016 convicted the 1^st Respondent of criminal trespass on the suit, having extended into the father's land. It is not contested that the 1^st Respondent was given 100ft x 60 ft land Buwali by the 1^st Plaintiff.

I therefore find that the 1^st Respondent was in willful and mala fide noncompliance of the Court.

Regarding the 2^nd Respondent, I find that he covertly acted with 1^st Respondent in willful disobedience of the orders of the Court, in entering the Memorandum of Understanding for property that was not registered in the names of the 1^st Respondent, failing to do due diligence and entering an agreement with no names of witnesses indicated.

In conclusion, it is my finding that all the above elements of contempt have been proved to required standard.

In light of the above, I make the following orders;

- 1. That this application is allowed. - 2. The 1^st and 2^nd Respondents are ordered to pay Shs. 5,000,000/= (five million shillings) each within 15 days from the date of this ruling to purge themselves of the contempt.

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- 3. That in default of payment of the penalty for contempt of Court as ordered in (2) above, the 1^st and 2^nd Respondents (Sebiragala Edward Junior and **Mawanda Robert)** shall be arrested and imprisoned for 6 (six) months. - 4. The Respondents shall jointly and severally pay the costs of this application.

Dated at Kampala this 1^st day of July, 2025.

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**Christine Kaahwa JUDGE**