Nassolo & 4 Others v Engola & 5 Others (Miscellaneous Application 2470 of 2024) [2025] UGHCLD 28 (14 February 2025)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

[LAND DIVISION]

MISCELLANEOUS APPLICATION NO. 2470 OF 2024

*(*ARISING FROM CIVIL SUIT NO. 623 OF 2017)

- 1. NASSOLO LAMULA - 2. SAID GANAFA - 3. MUKIIBI YASIN :::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS - 4. KALEMA ABBEY - 5. SSAMUKA HASSAN

(Administrators of the estate of the late Hajji Ayub Kasali)

VERSUS

- 1. ENGOLA BETTY - 2. ADUPA PATRICK NELSON - 3. DAVID MPANGA ::::::::::::::::::::::::::::::::::::::::: RESPONDENTS - 4. BYAMUGISHA OWAK FRANCIS - 5. SAM ENGOLA - 6. CHRISTINE OKOTCHONO MUGABI (Executors of the will of the late Willie Patrick Ogule)

BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA RULING.

*Introduction:*

- 1. The Applicants bring this application by way of Notice of Motion under Section 37 of the Judicature Act, Section 98 of the civil procedure Act, Order 52 rules 1,2 and 3 of the civil procedure rules for orders that; - i) A declaration that the act of the respondents as executors of the estate of the late willie Patrick Ogule in refusing to surrender the certificate of title for land comprised in Kyadondo Block 93 Plot 7 at Jakana Measuring 39.9 acres to the registrar of titles for rectification is in violation and contrary to the court judgement and decree of 25th April 2023. - ii) A declaration that the act of the respondents refusing to deposit the certificate of title for Kyadondo Block 93 Plot 7 at Jacana measuring 39.9 acres to the registrar of titles to be subdivided in equal shares to enable each be registered in the names of the estate of the late Ayub Kasali is unlawful and in contempt of the court judgment and decree of 25th/04/2023.

- iii) An order to the registrar of titles to cancel the names of the executors of the estate of the late willie Patrick Ogule and issue a special certificate of title for Kyadondo Block 93 Plot 7 at Jacana measuring 39.9 acres in the names of the estate of the late Ayub Kasali and subdivide the certificate of title in equal hectares in favor of both estates of the late willie Patrick Ogule and estate of the late Ayub Kasali. - iv) Consequent to (a) and (b) hereof, the respondents as contemnors be ordered to purge the contempt by desisting to hold the whole certificate of title for Kyadondo Block 93 Plot 7 measuring 39.9 acres by surrendering the same to the registrar of titles for rectification in compliance with the court judgement and decree. - v) The contemnors be appropriately punished by way of committal to civil prison and or be ordered to pay a fine as sanction for the contemptuous conduct. - vi) The contemnors be ordered to pay Ughs 500,000,000 (five million shillings to the applicants. - vii) Costs of the application be provided for.

*Applicant's evidence;*

- 2. The application is supported by an affidavit deponed by the 2nd applicant which briefly states as follows; - i) That the 2nd applicant is a beneficiary and one of the administrators of the estate of the late Ayub Kasali, a judgement and decree holder in Civil Suit No. 623 of 2017 well conversant with the facts of the matters in the application. - ii) That the 2nd applicant together with the 3rd, 4th and 5th applicants instituted Civil Suit No. 623 of 2017and we were declared the successful party. - iii) The court directed the respondents among other orders to surrender a certificate of title over the suit land to the registrar of titles for rectification to enable creating two titles each with equal hectares in my names together with the rest of the applicants and another in the names of the respondents. - iv) The court also issued a permanent injunction among others against the respondents from interfering with the half of the

suit property measuring 19.9 acres being for the estate of the late Ayub Kasali in which I and the rest of the applicants are administrators.

- v) That on the 29th of August 2024, I instructed our lawyers to inquire from the respondents as to whether the respondents complied with the court order. - vi) That the respondents' lawyers in return wrote to ours informing that the respondents did not implement the court orders as directed in the judgement. - vii) That our lawyers informed that the respondents' failure to surrender the certificate of title over the suit land to the registrar of titles for rectification as directed in the judgement amounts to contempt of court. - viii) That the respondents disregard of the directives of court in the judgement and decree amounts to contempt of court orders.

*Respondent's evidence;*

3. The application is responded to by an affidavit in reply deponed by the 6th respondent which briefly states as follows;

- i) That the respondents were dissatisfied with part of the judgement in Civil Suit No. 623 of 2017 delivered on the 25th April 2024 and appealed against the same to the court of appeal. - ii) That the refusal to comply with the orders of the judgement is justified as we lawfully filed applications for stay of execution to avoid rendering the appeal nugatory. - iii) That the remedy for special certificate of title being sought by the applicants is untenable under this application. - iv) That there is no basis for an award of general damages as we have justifiable reasons for refusing to comply with the orders pending the outcome of the substantive application for stay of execution and court of appeal.

*Representation;*

4. The applicants were represented by Counsel Daniel Byaruhanga of M/S DAB Advocates whereas the respondents were represented by Counsel Jude Byamukama and Zahara Tumukirize of M/S JB Byamukama & Co. Advocates. Both parties filed their respective

affidavits and submissions which I have considered in the determination of this application.

*Issues for determination;*

*Whether the respondents committed contempt of court?*

*Resolution and determination of the issues;*

- 5. Counsel for the applicants submitted that contempt takes a form of disregarding court order and judgements and relied on the decision in Ssempebwa and Ors vs AG (2019) EA where the supreme court defined contempt as failure to obey a court order that was issued for another party's benefit. For one to be committed for contempt the following should be proved, that an order was issued by court, that an order was served or brought to the notice of the alleged contemnor, that there was a noncompliance with the orders by the respondents and that the noncompliance was willful and malafide. - 6. Counsel for the applicants further submitted that it's admitted in the 6th respondent's affidavit in reply that the respondents were aware of the valid order of court since they filed Civil Appeal No.


338 of 2024 and Misc Application No.1228 of 2024 for stay of execution.

- 7. It is the submission of counsel for the applicants that the respondent's refusal to surrender the certificate of title to the registrar of titles was against the court order and the same was willful and malifide. The respondents rather sought the intervention of the principal judge on reallocation of the file to another judge instead of complying with the said court order. - 8. Counsel for the respondents submitted that it's not disputed that there exists a lawful court order which the respondents are aware of and have not complied with because there is a justifiable cause because the respondents filed an appeal against the judgement in Civil Suit No.623 of 2017 and an application for stay of execution arising from the said orders. - 9. Counsel for the respondents further submitted that its trite that an appeal does not act as a stay of execution justifying why they filed an application for stay of execution by the respondents and it cannot be said that they intentionally refused to comply with the said order.

- 10. I take note of the submissions and authorities relied upon by both counsel. - 11. 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. - 12. 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 –v- the Attorney General of Trinidad and Tobago (Trinidad and Tobago) [19361 1 All ER 704, [19361 AC 322. - 13. 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.

i) Existence of a lawful order;

- 14. In the instant application, it's not disputed by the respondents that there exists a lawful order from a decision of court in the main suit. I therefore find this condition met by the applicants. - ii) Potential contemnor knowledge of the said order; - 15. To prove contempt of a court order, the Applicant should prove that the Respondents were aware of the existing court order. - 16. 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.* - 17. In the instant application, it's the averment of counsel for the respondents in his submissions that it's not disputed that the respondents are aware of the existence of the order in Civil Suit No.623 of 2017 herein referred to as the main suit.

- 18. Therefore, I find that the second condition is met by the applicants. - iii) Potential contemnor failure to comply, that is, disobedience of the order. - 19. Civil contempt is a strict liability violation and as stated by learned brother 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.* - 20. In the instant application, it's not disputed that there existed a lawful order which the respondents had knowledge of but failed to comply to the same. It's the submission of counsel for the respondents that the failure to comply with the said order was justifiable as per the facts at hand. - 21. It's the evidence of the applicants that their lawyers wrote to the respondent's lawyers inquiring about the compliance of the order (refer to annexure "B" as attached to the application) and the respondents lawyers responded to the said letter by stating that

their clients could not comply to the said order because they had a pending stay of execution application and an appeal against the said orders in the court of appeal (refer to annexure "C" as attached unto the application).

- 22. The submissions of counsel for the respondents suggest that an order of a trial court cannot be complied with because there exists an application for stay of execution and an appeal to the court of appeal. The filing of an application for stay of execution does not render an order of competent court unenforceable, an order of court is enforceable until rendered unenforceable. - 23. The filing of an application for stay of execution and an appeal against the said order cannot justify the non-compliance of the same. - 24. Therefore, it's to the finding of this court that the respondents are found to be in contempt of court orders issued in Civil Suit No. 623 of 2016. - 25. The instant application therefore succeeds with the following orders; - i) The respondents are hereby found to be in contempt of orders issued by court vide Civil Suit No. 623 of 2016.

- ii) The respondents are subjected to a fine of Ughs 2,000,000 for being in contempt of the order of court. - iii) No orders as to costs.

I SO ORDER.

NALUZZE AISHA BATALA

Ag. JUDGE

14th/02/2025

Delivered electronically via ECCMIS this 14th day of February

2025.