Asiimwe & 9 Others v Mugisha (Miscellaneous Application 124 of 2024) [2024] UGHC 1015 (28 October 2024)

# **REPUBLIC OF UGANDA** IN THE HIGH COURT OF UGANDA AT KIBOGA **MISCELLANEOUS APPLICATION NO. 0124 OF 2024** (ARISING FROM MUBENDE MISC. APPL. NO. 108 OF 2017 & MUBENDE CIVIL SUIT NO. 054 OF 2016 (NOW KIBOGA CIVIL SUIT NO.68 OF 2024)

## 1. BENJAMIN ASIIMWE

2. MBABAZI ROBINAH

(Administrators of the Estate of the Late Boniface Kagubale)

- 3. JOHN BOSCO KAGY BYARUGABA - 4. EDWARD KAGY HIGIRO - 5. JOHN KAGY MATOVU - 6. JOHN KAGY MUTUNGYE - 7. AGNES TUMUSIIME - 8. STEVEN KAGURUSI - 9. COSTA TUMUSIIME - 10. BENJAMIN KAGUBALE ASIIMWE:::::::::::::::::::::::::::::::::::

#### VERSUS

MUGISHA PAULAS KAREKYEZI::::::::::::::::::::::::::::::::::::

## **BEFORE: HON. MR JUSTICE KAREMANI JAMSON. K**

#### **RULING**

#### **INTRODUCTION**

This Application is brought under Section 98 of the Civil Procedure Act Cap 282 and

Order 52 rule1 of the Civil Procedure Rules seeking for orders that:

- 1. The respondent be committed to civil prison for such period as court may dim fit. - 2. The respondent be ordered to pay a sum of Fifty Million shillings (Ug. Shs. $50,000,000$ = or such sum that court may deem fit as fine for contempt of court order. - 3. The respondent be ordered to restore the status of the suit land before excavation date or $7$ <sup>th</sup> April 2024. - 4. Costs of the Application be provided for.


## APPLICANTS' PLEADINGS

This Application is supported with an Affidavit deponed by MBABAZI ROBINAH of C/O M/s ZACK OLOWO ADVOCATES & SOLICITORS GET-IN HOUSE 1<sup>ST</sup> FLOOR PLOT 3 WILLIAM STREET, P. O Box 70162 CLOCK TOWER, Kampala; wherein she contends as follows:

- 1. That, on the $8^{th}$ September 2017 they made an application for an interim order restraining the respondents, their agents, representatives, assignees, transferees, from selling, fencing building, alienating, mortgaging, effecting any dealing or leasing the suit land vide Mubende Miscellaneous Application No. 108 of 2017. (A copy of the Application is herein annexed and marked $(A')$ . - 2. That, the respondent through his lawyers (Lubega & co. advocates) filed an $\frac{1}{2}$ affidavit in reply to the Application deponed by the $3<sup>rd</sup>$ respondent. (A copy of affidavit is herein annexed and marked $'B'$ ). - 3. That, upon closure of pleadings the court set a date for ruling in Miscellaneous Application No. 108 of 2017. - 4. That, on the 1<sup>st</sup> day of November 2017 this honorable court issued an Order against the respondent, his agents, representatives, assignees, transferees, from fencing, building, alienating, mortgaging, effecting any dealing or leasing the piece of land comprised in lease hold register volume 1479 folio 2 also described as Singo Block 597 formerly Plot 10 land at Kiryanyonza, Kyamakola, Kiboga District until the hearing and disposal of Miscellaneous Application No.107 of 2017. (A copy of the Order is herein annexed and marked $'C'$ . - 5. That, the respondent has been aware of the existence of the Order since its being passed and was even privy to the taxation application arising from the grant of the order. (A copy of the taxation hearing notice is herein annexed and marked $'D'$ ). - 6. That, the Miscellaneous Application No.107 of 2017 from which Miscellaneous Application No. 108 of 2017 arises has never been heard and disposed of by this Honorable Court. - 7. That, the main suit is still on going and was scheduled for hearing on $14<sup>th</sup>$ May, 2024 before the trial Judge. - 8. That, on 5<sup>th</sup> of April 2024, I received a telephone call from my worker (Mr. Kiiza Ambrose) to the effect that the $3^{rd}$ respondent had hired an earth mover (excavator) and excavated a deep pit or trench on the suit land. (A photo of the excavation is herein annexed and marked $'E'$ ). - 9. That, on 8<sup>th</sup> April 2024, I rushed to Kiboga police station and reported the matter to police vide reference number KBG/CRB/205/2024 where upon the Police acted and arrested and detained the respondent's hired worker (excavator operator).

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Man.

- 10. That, when the respondent heard about the arrest of the excavator operator, he came to the Police station to rescue him and made a statement to the effect that the person arrested by him was deployed by him to demarcate his land. - 11. That, while at Police, the respondent admitted having instructed the excavation in his statement and further stated that we do not have any land therein and he was only demarcating his land. (A copy of the affidavit of my worker confirming his giving instructions for the exaction is herein annexed and marked $'F'$ ). - 12. That, by the deep excavation, the respondent has in effect curved off nearly 70% of the disputed suit land to himself despite knowing that the same is still pending determination by court. - 13. That, the action of the respondent has caused me unnecessary loss by destroying my crops such as cassava and beans for which we pray that this court orders him to pay. (Copies of the photos of the destroyed crops are herein annexed and marked $G'$ . - 14. That, the deep trench has caused unnecessary inconvenience to me in such a way that it has cut off passage to the greener pastures and water for my cattle. - 15. That, the actions of the respondent amount to contempt of lawful orders to which this honorable court cannot condone. - 16. That, I pray that this honorable court issues a warrant of arrest of the respondent and commits him to civil prison, orders him to restore the status of the suit land as was before excavation and condemns him to fine of Ugx.shs. $50,000,000/$ = or to such deterrent amount that court may deem fit.

## RESPONDENT'S PLEADINGS

The respondent while opposing this Application, swore an Affidavit in reply deponed by MUGISHA PAULAS KAREKYEZI of C/O M/s LUBEGA & CO. ADVOCATES, P. O Box 5402 Kampala; wherein he briefly contends as follows;

- 1. That, the Applicants obtained an interim order on 1<sup>st</sup> November, 2017 in respect of land comprise in Leasehold Register Volume 1479 Folio 2 Singo Block 597 formerly Plot 10 at Kiryanyonza, Kyamakola in Kiboga District restraining me, from selling, fencing building, alienating, mortgaging, effecting any dealing or leasing the piece of land, which order was granted pending the hearing and disposal of the substantive application vide $M/A$ 107 of 2017. - 2. That, the land as described in the interim order being the suit land is NOT the land I occupy because the land I occupy is one measuring 170 acres situated at Kayera, Kapeke in Kiboga District, which I purchased from the late Edward Karibwende

/ man

on 3<sup>rd</sup> July, 2015 bonafidely and for a valuable consideration without any notice of the Applicants' alleged existing interests.

#### **REPRESENTATION**

The above matter came up for hearing on the 14<sup>th</sup> of May, 2024, the Applicants were represented by Counsel Olowo Zack of M/S ZACK OLOWO ADVOCATES & SOLICITORS while the respondent was represented by counsel Allan Tumwesigye of $M/s$ Lubega & Co. Advocates.

#### SUBMISSIONS

Both parties proceeded by way of oral submissions. Court has taken note of them in making this decision.

#### **ISSUE FOR DETERMINATION**

This Court has framed the following issue for the determination in the instant application.

- 1. Whether the Application raises sufficient grounds for grant of an order of contempt of a court? - 2. What remedies are available to the parties?

## **RESOLUTION OF THE ISSUE**

## **ISSUE 1: WHETHER THE APPLICATION RAISES SUFFICIENT GROUNDS FOR** GRANT OF AN ORDER OF CONTEMPT COURT

The instant Application arises from Miscellaneous Application No. 108 of 2017 in which an interim Order was issued on the 1st day of November, 2017 until the hearing and disposal of the substantive main Application for a temporary Injunction vide Miscellaneous Application No. 107 of 2017.

According to **Paragraph** 7 of the Affidavit in support of this Application, the substantive application MA. No. 107 of 2017 has to date never been disposed of, although the Applicants state in **Paragraph 8** of the same Affidavit that, the main suit was scheduled for hearing before the trial Judge on the $14$ <sup>th</sup> of May, 2024.

It was the responsibility of the applicants to move court tomhave the substantive matter fixed and disposed of since the interim order issued was to last till the disposal of the main application. It is over four years before the substantive application was fixed for determination & disposal.

Marn

The applicants have been beneficiaries of the interim order that has existed for over four years before the substantive application is disposed of.

Interim orders are supposed to be for a very short time possible before the main application which is presumed to address the detailed issues is concerned.

In the case of GRACE MOOLI VERSUS PAUL MOOLI AND AIDA MUNIALO CIVIL **REVISION NO.9 OF 2012, Justice Stephen Musota stated that, "Interim Orders are in** principal supposed to last a short, stated period so that the party to whom it is granted does not abuse our process by delaying to cause the other inter parties' application to be heard expeditiously....".

The respondent in his Affidavit in reply avers that the piece of land referred to in the current application is different from the suit land. This is an issue that can only be addressed at the hearing of the main application to enable court ascertain the status quo being maintained. Court cannot be invited at this point to restore the status quo that was not ascertained at the filing of this suit.

This court cannot condemn a party for actions against an interim order secured seven years ago. Much is expected to have occurred for all this period.

This court takes responsibility for the failure to dispose of the main application for all this period.

## **ISSUE NO.2 WHAT REMEDIES ARE AVAILABLE TO THE PARTIES?**

For the foregoing reasons, this application for contempt of a court order lacks merit and it is hereby dismissed. Each party will bear its own costs for this application.

I so-order Mair

KAREMANI JAMSON K. **JUDGE** 28.10.2024 Court-Delivered by email. Main KAREMANI JAMSOIN. K

**JUDGE** 28.10.2024