[2020] UGHCLD 21

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA **LAND DIVISION** MISC. APPLICATION NO. 223 OF 2019

# (ARISING OUT OF CIVIL SUIT NO. 500 OF 2013)

WILBERFORCE SSEKUBWA ::::::::::::::::::::::::::::::::::::

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## **VERSUS**

COMMISSIONER, LAND REGISTRATION & 7 $ORS. \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots$

Before: Lady Justice Lady Alexandra Nkonge

## **RULING:**

## Introduction:

This application was filed by Mr. Wilberforce Ssekubwa on 20^th February, 2018, 20 against the Commissioner, Land Registration, seeking orders that:

- 1. the respondent be summoned to court to show cause why he $\frac{1}{2}$ should not be committed to civil prison for a term not exceeding 6 months for breach/disobedience of a decree of this court dated 27^th February, 2014 issued under CS No. 500 of 2013-Wilberforce Ssekubwa vs Miriam Kuteesa & 5 others; - 2. a consequential order that all dealings, transactions and undertakings in respect to the suit land consequent to the

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issuance of this decree of this court dated $27$ ^th February, 2014 be reversed and cancelled:

- 3. the title to the suit land be accordingly restored to Kibuga Block $\mathcal{L}$ 28 plot 540, Makerere in the names of the applicant as per the decree of court dated the 27^th February, 2014; - 4. costs of this application.

#### 10 **Background to this application:**

The application was supported by the affidavit of Mr. Wilberforce Ssekubwa, the applicant, averring that the property comprised in Kibuga Block 28 plot 540, **Makerere** was property that he had legally acquired for valuable consideration and in part land received as gift intervivos by former legal owners (see: Annextures 'A'

#### 15 collective sale agreements.)

That prior to that acquisition the 2^nd respondent, Miriam Kuteesa had litigated its ownership with the 3^rd-5^th respondents vide *Civil Suit No.* 95 of 2009, but later Miriam Kuteesa and other respondents in connivance and utter disregard of the decree of court purportedly entered into a settlement in a bid to reverse the clear terms of that decree.

This matter has gone through a chequered history, details of which I need not repeat here. Initially as per memorandum of sale dated 18th December, 2013 Miriam Kuteesa through her then attorney Kabali Asumani had sold an acre to the applicant's mother Teopista Mpindi Namakula, who acquired an equitable interest

25 in that land.

$20$

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A series of other transactions followed thereafter by which the applicant claimed to have lawfully purchased portions of the suit land from other equitable interest holders.

The present application had been originally been filed by him against the Commissioner, Land Registration alone for contempt of consent orders issued vide 30

**Civil Suit No. 500 of 2013,** which the applicant had filed, for the transfer of his interests into his names. The said decree entitled him to an area of 1.5 acres out of the suit land, which the $1^st$ respondent had allegedly failed to hand over.

This court however on 16^th August, 2019 directed that the rest of the parties who had purportedly acquired interest in that land be notified about this application, before the matters raised therein could be addressed.

### **Analysis of the evidence:**

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From a brief background underlying the history of this case, the uncontroverted evidence is that Ms Mariam Kuteesa the $2^{nd}$ respondent, is the administrator of the estate of her late father, the late Musa Muganzi Kalanzi having been granted letters of administration vide: **AC No. 141 of 1986.**

She filed a suit **vide:** HCCS No. 95 of 2009 against the respondents, Ms. Edith Nantumbwe, Jimmy Kizito, Joshua Mukalazi, Daudi Kiwuuta Kizito. An *exparte* judgment was entered against them.

15 Court made a declaration that the land comprised in *Kibuga Block* 28, plot 540, land at Makerere formed part of the estate of the late Musa Muganzi Kalanzi and issued orders restoring the land into her names as the administrator of the estate.

It thereupon issued consequential orders to the commissioner, land registration to prepare and issue to a special certificate of title into her names. The said title was 20 issued to her on 1^st January, 2010 under *Instrument* No. KLA 479500. The respondents who were dissatisfied with the orders made, filed an appeal in the Court of Appeal and subsequently in the Supreme Court.

The Supreme Court vide **MA No. 20 of 2014**, confirmed the decision of this court stating that the judgment of this court had been fully executed on 1^st January, 2010.

#### 25 (Refer also to MA No. 1863 of 2012).

Upon a subsequent request by the applicant for directions, the Superior Court forwarded this matter back to this court for delivery of the judgment in this application, which had been put on hold, pending the hearing of **MA No.163 of**

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2015. MA No. 163 of 2015 had also been filed by the respondents in the Court of Appeal, and I will refer to it later.

All details relating to this dispute are available on court record and I need not repeat the various transactions made in respect of the suit land or the numerous court actions taken by the various parties who claimed interest therein.

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Suffice to state here that following the decree made by this court vide: HCCS No. 95 of 2009, duly confirmed by the Supreme court, the applicant purchased the land comprised in **Kibuga Block 28 plot 540** (suit land) from the administrator of the estate, Ms Miriam Kuteesa.

Upon his failure however to access the suit land he filed *Civil Suit No. 500 of 2013:* 10 Wilberforce Ssekubwa vs Mariam Kuteesa & 5 others upon which a consent was entered between them on 26^th February, 2014 before the deputy registrar of court.

Of specific interest to this application however was the order made under that decree, directing the commissioner to: issue a special certificate of title for the entire 15 **Kibuga Block 28, plot 540;** and to execute the judgment order by passing the mutation form for the subdivision of land and issue duplicate certificate of title to the applicant herein for the land ceded and transferred; and to give residue to the $1^{st}$ defendant for further estate management.

In that consent order the applicant also withdrew criminal proceedings which he 20 had instituted against Miriam Kuteesa, in respect to that land, vide: Criminal Case No. 951 of 2013.

The record indicates that through his counsel, *M/S KMT Advocates*, the applicant had written to the 1^st respondent on 17^th July, 2017 enclosing the orders, the basis upon which the applicant lay his claim.

However without providing any good reason, the 1^st respondent did not comply with the order of court in Civil Suit No. 500 of 2013, prompting the applicant to file this action for contempt of court. **(Annexture G)**.

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As indicated in the affidavit of service filed on 8^th October, 2019, the 1^st respondent on 24^th September, 2019 had acknowledged receipt of the court directives together with the application and written submissions.

The 3^rd, 4^th and 5^th respondents counsel, Mr. Kabundama Simon who had personal conduct of the case however refused to acknowledge service. On that same day $\mathsf{S}$ service was duly effected to the $6^{th}$ respondent through the Secretary of the company.

The 6^th respondent also refused to endorse on the court documents. None of the respondents therefore filed any response to demonstrate any opposition to this application.

# **Liability of Miriam Kuteesa:**

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Miriam Kuteesa, the 2^nd respondent in this application never denied having received *Ugx 520,000,000/*= from the applicant in respect of the suit land, the basis of which the consent had been made vide HCCS 500 of 2013. She never challenged the decree.

She even took steps to effect the land transfer to the applicant by signing the transfer and mutation forms (Annexture A, sale agreement dated 6^th August, 2015). That had been the position obtaining, as at 27^th February, 2014 when the decree from the consent was extracted.

The sale agreement signed by Miriam Kuteesa, had as at 6^th August, 2015, upon 20 receiving from the applicant of the full purchase amount settled all the claimants, beneficiaries of **block 28 plot 540** (suit land).

If there were any other adverse interests acquired, or transactions, and/or commitments made prior to that in respect to this suit land (with or without her knowledge) those were never brought to the attention of this court. The beneficiaries of that estate never challenged the transaction between the applicant and the administrator of the estate..

In a strange twist of events, Miriam Kuteesa on 30^th August, 2016 however under EMA NO. 1838 of 2016, as an administrator yet again received another payment

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of *Ugx 750,000,000/=*, from the judgment debtors, again purporting to settle all claims on the subject and all beneficiaries and claimants to the estate of the late Musa Kalanzi Muganzi, administered by Miriam Kuteesa. The applicant who had already acquired interest in the property was never involved in the second transaction.

Subsequently, this court's attention was also drawn to yet another consent $\mathsf{S}$ judgment entered on 10^th October, 2019 in Civil Appeal No. 163 of 2015. Upon notification of the application at that time still pending before the Court of Appeal, the ruling in this very application had been put on hold by this court.

In *Civil Appeal No. 163 of 2015* which was heard by a single justice of the Court of Appeal, Miriam Kutesa allegedly bound herself not to enforce the original 10 judgment and decree of this court granted to her under Civil Suit No. 95 of 2009.

But then again later she sought to challenge the said consent in an application she filed in the Court of Appeal: Civil Reference No. 85 of 2020. By that time subdivisions on the land had already been made on the suit land, creating plots: 1244 to 1247.

While the above was taking place the applicant who had not been party to any of the various actions and transactions subsequent to his purchase of the land, was still holding onto the consent he obtained under Civil Suit No. 500 of 2013, which had neither been challenged nor discharged.

Ms Miriam Kuteesa entered into two transactions between different parties over the $20$ same property, and it is the conclusion by this court that this partly explained the mess that was created relating to the suit estate, part of which the applicant claimed.

# Whether the 1^st respondent committed contempt of court:

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The applicant's contention in this application is that the 1^st respondents failed to act as directed by court, in utter disregard of a valid and undischarged consent order duly entered on 27^th February, 2014, vide: Civil Suit No. 500 of 2013: Wilberforce <u>Ssekubwa vs Miriam Kuteesa.</u>

He alleged that the 1^st respondent instead relied on a purported settlement of the decree (EMA No. 1838 of 2016), Annexture E, which came in after the applicant

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Four elements, must be satisfied in order for a complainant to prove contempt of court, namely: existence of a lawful order; the potential contemnor's knowledge of the

- order; the potential contemnor's ability to comply; and the potential contemnor's failure $\mathsf{S}$ to comply with the order. (See; Hon Sitenda Sebalu vs Secretary General of East African Community Ref. No. 8/2012). The standard of proof in any such proceedings must be higher than proof on the balance of probabilities and almost, but not exactly beyond reasonable doubt. - According to **Halsbury's Laws of England**, 4^th edition, it is civil contempt to 10 refuse or neglect to do an act required by a judgment or order of the court within the time specified in that judgment, or to disobey a judgment or order requiring a person to abstain from doing a specific act. - Furthermore, according to case law, it is the plain and unqualified obligation of every person against or in respect of whom an order is made by a court of competent 15 jurisdiction to obey it, unless and until it is discharged.

Contempt of court has been held to exist where there is a court order which the person is aware of, but which he chooses to disobey. Refer: Semanda David. Fred Mawagi and Isaac Kabito Vs Kaheebwa Geofrey and Ayebwa Benon Misc. Appl. No. 1625 of 2016.

The uncompromising nature of this obligation is demonstrated by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. See: Hadkinson vs Hadkinson [1952] ALL ER 567 cited in Kisaakye vs Kadama MA No. 739 of 2016.)

Thus in LC Chuck and Cremier [1896] ER 885 it was held that such person should 25 apply to court so that it is discharged, but as long as it exists it must be obeyed. The party who elects to disobey such order does so at the risk and pain of committing contempt of court.

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In this case, **Annexture "G"** was the applicant's evidence that the decree was served onto the 1^st respondent on 1^st August, 2017. By that date however another transaction had been made vide: No. 1838 of 2016 and apparently executed, resulting in the creation of several plots.

- As per the amended decree dated 19^th October, 2010 vide: Civil Suit No. 95 of $\mathsf{S}$ **2009**, **Annexture D**, by consent order, it was decreed: - a) That all the instruments for and registration of the $2^{nd}$ to $7^{th}$ defendants on the purported photocopy certificate of title for the suit land,.....are invalid and of no legal consequence; - b) That the $1^{st}$ defendant reconstructs the record enters name of the late Musa Muganzi Kalanzi in the register book as proprietor of the suit land, makes a substitute certificate of the title for the suit land in lieu of the original certificate of title and registeres thereon the deceased's names as proprietor; - c) That the $1$ ^st defendant issues to the plaintiff a special certificate of title for the suit land and enter her in the register and on the certificate of title as an administrator of the estate of the late $\dots$ ...

On 16^th September, 2016, the commissioner Sarah Kulata Basanngwa having detected some anomalies in these transactions, applied her powers by virtue of section 91 of the Land Act, Cap. 227 (special powers of the commissioner) when she issued notification to the respondents of her intention to have the register rectified by cancelling: the entries made in respect to the suit land, subdivisions and transfer to **Nina Interiors Ltd.**

As per **section 91(2)**, she specifically requested the parties in that notice to notify her of any objection to the proposed actions within 21 days from the date of service of that notice.

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By law, that office is also required to conduct a hearing giving the interested party an opportunity to be heard in accordance with the rules of natural justice. (section 91(2a)). The law also requires that the office communicates its decision in writing, with reasons, and may call the title for cancellation.

Under (section 91(3), thereof, if a person holding a certificate of title or instrument $\mathsf{S}$ fails or refuses to produce it to the commissioner within reasonable time, the commissioner is under obligation to amend the registry copy and where necessary issue a special certificate of title to the lawful owner.

Without giving any reason however, the 1^st respondent who had apparently not registered any objection from the respondents abandoned this course of action; 10 refused to take up any of the actions as spelt out in the law, leaving in circulation the four titles which are the subject of this dispute.

The office holds special powers under subsection (4) of section 91 and various sections under the RTA, namely sections 165, 167, 173 among others, to take corrective action of errors in the register book or duplicate certificates or 15 instruments did not take any such step. She did not notify the applicant as one of those likely to be affected by any decision under that section.

She did not conduct any hearing in accordance with the rules of natural justice or if she did, she did not avail to this court any such proof which she could have done by responding to the matters raised in this application.

Thus as at $21^{st}$ July, 2015 as per the Supreme court ruling vide: **SCMA No. 20 of** 2014 which struck out SCCA No. 11 of 2014, after the execution of the decree, all other subsequent efforts by the respondents to change the status quo by connivance, using consent orders, had been declared as futile.

It is clear therefore that at the time when the applicant purchased the land in 25 contention, Miriam Kuteesa who by declaration of court was still held to be the registered owner of the property as the administrator of the estate, she had not disposed of the land to the respondents. The applicant's interest acquired in that land as per the decree made in Civil Suit No. 500 of 2013 rendered made all other

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subsequent transactions over the same land invalid. The 1st respondent's failure and/omission to take corrective action after the anomaly had been drawn to her attention therefore amounted to contempt of the court order.

## **Issue No. 3: Remedies:**

Section 98 of the Civil Procedure Act, Cap. 71 empowers this court to make such $\mathsf{S}$ orders to meet the ends of justice and to prevent abuse of court process.

The applicant sought that the 1^st respondent be committed to civil prison. The jurisdiction to commit for contempt should be carefully exercised, and with the greatest reluctance and anxiety on the part of the court to see whether there is no other mode which can be brought to bear on the contemnor. See: Mutikika vs Baharini Farm Ltd [1985] KLR 227.

It is properly ordered where the defendant has refused to do an affirmative act required by the provisions of an order, which in form or substance was mandatory in character. (Re: Contempt of Dougherty 492, Michigan 81, 97 (1987)).

An order for imprisonment can only be issued against the officer who acted in 15 violation of the order. Court in this matter takes judicial notice of the fact that changes have since taken place in the office of the Commissioner, Land Registration and that Ms Sarah Kulata Basangwa, who failed to take action when the red flag was drawn no longer holds that office. She was not however party to this application.

- Accordingly, taking into account the above observations, findings and conclusions 20 the following are the consequential orders granted by this court: - 1. All dealings, transactions and undertakings by the respondents or their agents in respect of Kibuga, block 28, plot 540 Makerere land made in contravention of the decree in Civil Suit No. 500 of 2013 , dated $27^{\rm th}$ February, 2014 are null and void; - 2. The title of the land duly acquired by the applicant, Wilberforce Ssekubwa is to be restored by the $1^{st}$ respondents and transferred in

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the names of the applicant as per the decree of court issued vide: $Civil$ Suit No. 500 of 2013, dated 27^th February, 2014.

3. The titles created out of the suit land from the land comprised in $K$ **ibuga**, block 28, plot 540 Makerere for plots 1244, 1245, 1246, and **1247** were irregularly created and therefore cancelled.

4. The 1^st and $2^{nd}$ respondents to meet the costs of this application.

$10$ Alexandra Nkonge Rugadya

Judge

9^th November, 2020.

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