Kyewalabye Fred v Ddumba Peter and Nganda Hakim (Miscellaneous Application No. 263 of 2024) [2025] UGHC 571 (18 June 2025)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT MPIGI

MISCELLANEOUS APPLICATION NO. 263 OF 2024

(Arising from Miscellaneous Application No. 201 of 2023)

(Arising from Civil Suit No. 101 of 2023)

2. NGANDA HAKIN «c s 10 10wt s s 10 w1 s 66570 o7 5 35 3878 0 87 35 695 576 58859 RESPONDENT

BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK

Ruling

The applicant brought the instant application under Section 98 of the Civil Procedure Act, Order 41 Rule 2(3) and 9 of the Civil Procedure Rules against the respondents seeking orders that;

- a. The respondents, their agents, servants, assignees and any other person/s claiming interest under them in the suit land be arrested and committed to civil prison for disobedience of the interim and temporary injunction orders of the Registrar Her Worship Atukwasa Justine in Miscellaneous Application No. 201 of 2023 dated 19t October, 2023 and 14™ November, 2023. - The respondents' continued construction on the suit land is illegal and in contempt of the temporary injunction order which is still subsisting to date. - . The respondents pay punitive/exemplary damages to a tune of UGX 25,000,000/=. - The respondents pay a court fine of UGX 25,000,000/= for contempt of a court order. - €. The demolition of the illegally built structure on the suit land and restoration of the status quo at the expense of the respondents. - f. Costs of this application be provided for. - 30 The application is supported by an affidavit sworn by the applicant and the grounds briefly are as follows; - a. On the 19% October, 2023, the court issued an interim injunction order against the respondents, their servants, agents or other persons claiming

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interest under them, maintaining the status quo of the suit land measuring 140ft x 120ft at Nsunjuwe, Kikondo, Mpigi District pending the determination of Miscellaneous Application No. 201 of 2023 for a temporary injunction. . . .

- b. On the 14" November, 2023, the court issued a temporary injunction order restraining the respondents, their agents, servants, assignees, and any other person claiming interest under them, from further, selling, destroying, grading, wasting, developing or in any way disposing off or changing the status quo of the suit land at Kikondo, Mpigi District, pending the determination of the main suit. - c. That both the aforesaid court orders were issued in the presence of counsel for the respondents and the 1t respondent. - d. The respondents adamantly, refused to comply with the interim order and subsequently, the temporary injunction order by starting construction of a foundation and currently, a structure at roofing stage during the subsistence of the said court orders and that the status quo per the court orders has been changed by the respondents. - e. The respondents were not to construct/waste, sale, or develop the suit land until the final determination of the main suit. - 20 The application was opposed by the respondents through the affidavit in reply sworn by the 1t respondent who denied allegations of disobeying the court order whereof he averred that he sold the suit land to the 214 respondent who then resold to another party. That the said 3™ party is the one constructing on the suit land and the respondents have nothing to do with what is going on on the suit land.

25 That the 3'4 parties who are currently constructing on the suit land, are not party to the suit, therefore they do not know about the existence of the court order for this application to succeed. Further, that the application is misconceived, malicious and aimed at coercing the respondents to take responsibility for acts beyond their control. As such the application should be dismissed with costs.

30 Representation:

Counsel Fred Mulumba appeared for the applicant while the respondents were represented by M/S Springs Advocates. Both parties filed written submissions.

Issues:

- 1. Whether the respondents' actions amount to contempt of court? - 2. Whether the applicant is entitled to the remedies sought?

Resolution:

Issue 1: Whether the respondents' actions amount to contempt of court

The definition of contempt of court according to the Black's Law Dictionary, 7th Edition is conduct that defies the authority or dignity of court.

. . . The term "contempt of court" has been defined in the case of the case of Johnson vs. Grant SC 1923 SC 789 at790 as;

> ".... An offence consists in inferfering 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."

- 10 In the case of Stanbic Bank (U) Lid and Jacobsen Power Plant Ltd v. The Commissioner General Uganda Revenue Authority, H. C. M. A No.42/ 2010, it was stated that; for court to determine whether there was contempt, there must be existence of a 1awful order, the potential contemnor's knowledge of the order and the potential contemnor's failure to comply (disobedience of the court order). - 15 Also, the case of Sitenda Sebalu v. The Secretary General ofthe East African Community, Ref. No. B of 2072 (East African Court of Justice) set out the pre-~ conditions that must be satisfied before a court can hold a respondent in contempt. The court stated as follows:

"To prove confempt, the complainant must prove the four clements of contempt, namely:

- 7 The existence of a lawful order - ) knowledge of the order - 1) The contemnor''s ability fo comply - w) The potential confemnor's failure fo comply." - 25 Existence of an order:

I have carefully considered the submissions of both parties in this regard and it is not in dispute that there exists a court order however, the respondents contend that they have not disobeyed the said order. It is trite that where a valid court order exists, it must be obeyed in totality. A party who chooses to disobey the order without good reason risks being held in contempt. . (See LC Chuck and Cremier [1896] ER BB5).

Knowledge and awareness of the said order by the respondents:

It was submitted for the applicant while relying on the case of Jane Sempebwa and Another v. Ndibalekera Magdalena, Miscellaneous Application No. 176 of 2019, that the respondents were well aware of the court order but still went ahead and

disobeyed it. The respondents on the other hand contended that the 15t respondent sold the suit land to the 27 respondent before the issuance of the injunction who in turn had also sold the same to third parties. Thus, at the time the order was served, the respondents had no control over the suit land even though they knew

- about the court order. In the case of Betty Kizito vs Dickson Nsubuga & 6 others (Civil Application Nos.25 & 26 of 2021 arising from Civil Appeal No.8 of 2018), it was observed that; Common law leans towards the requirement of personal service or actual knowledge of the existence of the court order. In some instances, knowledge of the court order may be inferred even in cases of willful blindness. - 10 In the instant case while the respondents do not deny knowing the existence of the court order, they contend that they are not the ones in usage of the suit land as such this court is unable to determine if indeed the third party is aware of the court order or not. This ground has therefore not been proved by the applicant to the satisfaction of this court.

15 Whether the respondents breached or disobeyed the court order?

The applicant contends that the respondents in the instant case while well aware of the court order, went ahead and refused to comply with the same and changed the status quo of the suit land in violation of the court order. The applicant attached photographs to prove that construction continued on the suit land even when court

- 20 had issued a temporary injunction which in this case amounts to contempt of court. Counsel for the applicant added that the temporary injunction was issued to restrain the respondents, their agents or persons claiming interest under them, from interfering with the status quo of the suit land which in this case has been disobeyed. - 25 The respondents on the other hand deny disobeying the order of court and claim that the suit land is in the hands of a third party who is not party to the suit who are not agents of the respondents nor are they acting under the instructions of the respondents. That the third parties upon purchase of the suit land before the order was made are acting independently and not under the control of the respondents. - 30 That in the instant case the applicant has failed to provide a nexus between the respondents and the third parties building on the suit land. as such, the acts of the applicant are not in good faith since he knew about the on going construction and the said third parties are not party to the suit. (See: Makubuya Enock v. Ssemakula Jotham [1988] HCB 42). - 35 The applicant in my opinion has not proved sufficiently to this court that the respondents have disobeyed the court order willfully. The applicant merely attaching photos to his application does not prove that the constw.cti#going

on the suit land was orchestrated by the respondents who have stated that the suit land is in the hands of third parties who are not party to the suit.

In the case of Betty Kizito v. Dickson Nsubuga & 6 others (Supra), it was held that; there is need for proof beyond reasonable doubt of the alleged contemnor's deliberate conduct that has the consequence of disobeying the court order in issue. The applicant is however not required fo prove that the alleged confemnor infended to bring court info disrepute. Also where the breach of the order is unintentional and accidental then the courf may exercise the discrefion fo impose no penalty. Even where the applicant safisfies all the aforementioned elements required fo prove civil contempt, a court enferfaining contempt proceedings still possesses the power fo decline fo make a finding of contempf where the alleged contemnor shows court that he/she acted in good faith and was taking reasonable steps fowards compliance with the order. The remedy of confempt is a '"last resort" and should be used with great restraint. Cromwell ], in Carey vs. Laiken (supra), stated that: '"If contempt is found foo easily, a court's outrage might be freated as just so much bluster that might ultimately cheapen the role and authorify of the very judicial power if seeks fo profect." I...1 As this Court has affirmed, "confempt of court cannot be reduced fo a mere means of enforcing judgments..."

I am therefore unable to find the respondents in breach of the court order in this case. This ground therefore fails.

Issue 2: whether the applicant is entitled to the remedies sought?

25 Counsel for the applicant prayed that the respondents be committed to civil prison, pay punitive/exemplary damages of UGX 25,000,000/= and be fined UGX 25,000,000/= for contempt of court, demolition of the illegally constructed structures and the status quo restored at the expense of the respondents and the costs of the application be borne by the respondents.

30 Counsel for the respondents on the other hand submitted that the respondents are not in contempt of the court orders, therefore the applicant is not entitled to the remedies claimed. That the application is devoid of merit and should be dismissed with costs.

Having found that the respondents have not breached the court order, the applicant is not entitled to the remedies prayed for. This application therefore lacks merit and is hereby dismissed. Each party bears their own costs.

However, the ongoing construction should stop with immediate effect until the determination of the main suit. I so order. 1&?

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Right of appeal if any explained.


OYUKO ANTHONY OJOK

5 JUDGE

18/06/2025