Sentambule v Jane Musoke (Miscellaneous Appeal 46 of 2024) [2024] UGHCLD 180 (2 July 2024)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA [LAND DIVISION] MISC. APPEAL NO. HCT-00-LD-ML-0046-2024 (ARISING FROM EMA NO.0067 OF 2024) (ARISING FROM MISC. APPLICATION NO.1052 OF 2018) (ALL ARISING FROM HIGH COURT CIVIL APPEAL NO.2010 OF 2016/NO.118 OF 2011 & CIVIL SUIT NO.204 OF 2009, CHIEF MAGISTRATE'S COURT OF NAKAWA AT NAKAWA)

PAUL SENTAMBULE::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT

VERSUS

JANE MUSOKE::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

BEFORE: HON. JUSTICE BERNARD NAMANYA

RULING

1. In a Ruling delivered on the 25 April 2023, Justice Nyanzi Yasin found the appellant, Paul Sentambule, guilty of contempt of court in Miscellaneous Application No.1052 of 2018, holding as follows:

"This application succeeds in the following terms;

(i) It is declared that the respondent's actions are in contempt of the court order, issued vide High Court Misc. Application No. [193] of 2015, dated 21st April 2016.

(ii) The sum of shs. 15,000,000/= is awarded against the respondent [Paul Sentambule] as a penalty for contempt of court orders in Misc. Application No. [193] of 2015. The sum is to be deposited in court within 21 days from the date of this ruling OR that the respondent be imprisoned for 6 months.

(iii) In order to avoid disorder on ground, this court has limited the existence of the stay of execution to 6 months only to allow the prosecution of the appeal OR failure of which the order shall be vacated for being an abuse of court process having been in place for 8 years now.

(iv) Costs are awarded to the applicant."

- 2. The appellant brought the instant appeal against the Assistant Registrar of this court, seeking to set aside execution proceedings against the appellant. The appellant deponed two affidavits in support of the appeal on the 18 June 2024 and on the 27 June 2024. - 3. When the matter came up for hearing on the 27 June 2024, counsel for the respondent, raised a preliminary objection to the effect that, a party in contempt of a court order cannot be heard by court unless, and until he purges himself of the contempt. - 4. In paragraph 6(ii) of the affidavit in reply deponed on the 21 June 2024, the respondent averred that:

"A contemnor who has not purged himself of the contempt has no audience before court."

5. In the case of Jingo Mukasa v. Rwaguma (Civil Appeal No. 190 of 2015) [2021] UGCA 51, the High Court (Bashaija, J) found that Ms. Rwaguma was the lawful owner of land having acquired it by adverse possession and bona fide occupancy. Mr. Jingo Mukasa lodged an appeal in the Court of Appeal but while the appeal was pending hearing, he sold part of the land to third

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parties. When the appeal came up for hearing, it was argued on behalf of Ms. Rwaguma that Mr. Jingo Mukasa could not be heard on appeal, because he was in contempt of court for amongst others, selling off part of the suit land which was subject of the appeal, in contempt of the orders of the High Court. The Court of Appeal ruled that Mr. Jingo Mukasa could not be heard on appeal because he guilty of contempt of court. The learned Justices of Appeal (Hon. Justice Geoffrey Kiryabwire, Hon. Lady Justice Monica K. Mugenyi, and Hon. Justice Remmy Kasule) held as follows:

"On our part, we find no difficulty in reconciling the divergent positions in…Hadkinson v. Hadkinson [1952] 2 ALL ER 567. It is indeed in the public interest and in furtherance of public policy as encapsulated in Uganda's national laws and international obligations that the judiciary would embrace the responsibility articulated in R v. Horsefery Road Magistrates Ex Parte Bennet [1994] 1 AC 42 to refuse to countenance behaviour that threatens the rule of law. These are indeed grave considerations that, in the absence of other effective means of securing the contemnor's compliance, would warrant the refusal by a court to hear a party in such civil contempt as impedes the course of justice unless and until such party has purged himself or herself of the contempt. The contemptuous acts in issue in the instant case are an undisputable affront to the rule of law and due process that the Court cannot ignore. They typify and bring into purview the equitable maxim that "he who comes to equity must come with clean hands". The obviation of the Appellant's right of appeal would ordinarily be the court's sanction of last resort, primary recourse being made to such other coercive sanctions as would engender compliance with the flouted

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orders. However, there are scarcely any other feasible options at the Court's disposal, the Appellant having sub-divided and transferred part of the suit property to a third party that has since been registered as the proprietor thereof. Consequently, the subject matter of this Appeal having been removed from the Court's purview at the instance of the Appellant and in blatant violation of the trial court's orders, we would defer to the compelling reasoning of the US Supreme Court in National Union of Marine Cooks & Stewards v. Arnold 348 U. S. 37 (1954). It would be antithetical to the rule of law and an endorsement of the flagrant abuse of court process were this Court to entertain an Appeal by an Appellant that has been adjudged for disobedience of lawful court orders that are the subject of appeal. We find the court left with but one course of action to salvage the sanctity of the judicial process, that is, to dismiss the Appeal filed by the contemnor. In the result, this Appeal is hereby dismissed with costs to the Respondent"

6. On the 15 March 2024, this court conducted a locus in quo visit to the suit land located along Kira – Kasangati Road in Kira Town Council, Wakiso District. This was part of the process of hearing Misc. Application No.2578 of 2023: Ssali Moses v. Jane Musoke & Paul Sentambule. The court observed that the appellant still carries out the business of stone slating and pipe fabrication on the disputed land. These are the very activities for which the court found him to have violated the order of stay of execution, that limited use of the suit land to only farming and residential activity; and declared him to be in contempt of court.

- 7. On the authority of the Court of Appeal case of Jingo Mukasa v. Rwaguma (supra), which is binding on this court, it is my decision that the appellant, Mr. Paul Sentambule, has no audience before this court, because he was found guilty of contempt of court in Misc. Application No.1052 of 2018, and has not purged himself of the contempt; and is in fact, continuing to violate and abuse the orders of this court, thereby obstructing the course of justice. - 8. Accordingly, the following orders are hereby issued: - i). The appeal is dismissed. - ii). The execution against the appellant, Paul Sentambule, should proceed. - iii). The appellant, Mr. Paul Sentambule, is ordered to pay the costs of this appeal.

IT IS SO ORDERED.

BERNARD NAMANYA JUDGE 2 July 2024

Delivered by E-mail:

| Counsel for the appellant: | isaac.kugonza@gmail.com<br>ceasorjose@gmail.com | |-----------------------------|-------------------------------------------------| | Counsel for the respondent: | allanbariyo@gmail.com |