Banadda & Another v Nalubowa (Miscellaneous Application 2297 of 2024) [2024] UGHCLD 287 (29 November 2024)

# **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA**

# **MISCELLANEOUS APPLICATION NO 2297 OF 2024**

### **ARISING FROM MISC. APPLICATION NO.293 OF 2022**

## **(ARISING FROM CIVIL SUIT NO.153 OF 2022)**

## **1. PETER BANADDA**

**2. REHEMA MASAGAZI :::::::::::::::::::::::::::::::::::::: APPLICANTS**

## **VERSUS**

**HAJJAT SAUDA NALUBOWA :::::::::::::::::::::::::::: RESPONDENT**

## **BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA**

#### **RULING**

## *Introduction;*

- 1. This is an application by Notice of Motion brought under section 33(now section 37 of the revised laws) of the Judicature Act, section 98 of the CPA and Order 52 rule 1 of the Civil Procedure Rules for orders that; - i) A declaration that the actions of the respondent of constructing a wall on the suit property with the intention to block a corridor for common use for people and as a water passage are contrary

to the court order directing all parties to maintain the status quo of the suit land comprised in Busiro Block 33 Plot 17 land at Kyengera.

- ii) A declaration that the respondent's actions of conducting constructions on the suit premises to change part of the structure of the suit premises is contrary to a court order directing parties to maintain the status quo of the suit land comprised in Busiro Block 33 Plot 17 land at Kyengera. - iii) A declaration that the respondent's actions of demolishing and creating a structural extension on the suit property where she currently runs her business to change the appearance of the suit property is contrary to the order prohibiting all parties from demolishing the structures on the suit property and amount to contempt. - iv) An order against the respondent to pay Ughs 20,000,000(Uganda shillings twenty million) for violating a court order or be committed to civil prison. - *v)* Costs be provided for.

## *Applicant's evidence;*

- 2. The application is supported by an Affidavit deponed by Peter Banadda which briefly states as follows; - i) That on the 11th day of May 2022, this honorable court in a ruling vide MA 293 of 2022 application for a temporary injunction issued orders that the status quo of the suit land comprised in Busiro Block 33 Plot 27 at Kyengera be maintained. - ii) That the applicants in compliance with the said court order have since made no structure changes on the suit property nor performed any act in violation of the said order. - iii) That around the months of March and April 2024 the respondent who was aware of the existence of the temporary injunction order made structural changes to the suit property amounting to trespass. - iv) That the respondent demolished some of the structures on the suit property, constructed an extension on the room where she is operating her business, constructed a new wall intentionally blocking a passage at the premises and made

other structural changes affecting the premises disrupting the status quo which court ordered to maintain.

v) That the respondent's actions have now led to flooding of the premises in the area where she blocked a passage causing rain water to remain clogged in the area leading to damage of the premises.

#### *Respondent's evidence;*

- 3. The application is responded to by an affidavit in reply deponed by the respondent which briefly states that; - i) That it is true that this court issued a temporary injunction order vide Misc. Application No. 293 of 2022 maintaining the status quo of the suit land. - ii) That since the making of the said order, I have never demolished or constructed any structure on the suit land nor blocked any package or drainage channel on the suit land. - iii) That at the time of issuance of the said order, the applicants here in were operating a general merchandise shop on the suit land which they sold to third parties. - iv) That towards the end of October 2023, I and other business owners in Kyengera town council were served with directives

from the town clerk requiring us to pave front yards of our buildings and face lift dilapidated structures.

- v) That the traders organized a meeting as occupants of the suit land and agreed to jointly implement the council's directives which we did by leveling the front yard with marram to enable the paving which is yet to be done. - vi) That I have been in occupation and use of the suit land for more than 30 years and I am well aware that there has been a problem of water stagnating or clogging which is also well within the applicant's knowledge since they were also tenants - vii) That it is the new proprietors of the applicant's former lockup unit who extended part of the structure with metal and wire mesh caging changing the status quo of the suit property.

#### *Representation;*

4. The applicants were represented by Counsel Mugera Robert of M/S Mugera,Kusaasira Advocates whereas the respondent was represented by Counsel Semagulu Abubakar Saava of M/S Luzige, Lubega, Kavuma & Co. Advocates. Both parties filed written submissions which I have considered in the determination of this application.

#### *Issues for determination;*

- **i) Whether the respondent is in contempt of court orders issued in Miscellaneous Application No. 293 of 2022?** - **ii) What remedies are available to the parties?**

## *Resolution and determination of the issues;*

- *5.* 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. - *6.* 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.** - *7.* 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; - 8. In the instance application, the perusal of submissions from both counsel suggest that they do not dispute the fact that there existed a lawful temporary injunction order vide Misc. Application No. 293 of 2023 issued by court. - ii) Potential contemnor knowledge of the said order; - 9. To prove contempt of a court order, the Applicant should prove that the Respondents were aware of the existing court order. - 10. 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.*

- 11. The respondent herein was the applicant in the temporary injunction application vide Misc. Application No.293 of 2022 and at the time the said application was determined by Her Woship Natukunda Janeva on the 22nd of April 2022, counsel for the applicants was present in court. - 12. This relates to the fact that the respondent herein who was the 4th applicant in the said temporary injunction application was aware of the order issued in the said application. - **iii)** Potential contemnor failure to comply, that is, disobedience of the order. - *13.* Civil contempt is a strict liability violation and as stated by my 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.* - *14.* In the instant case, counsel for the applicants aver that the respondent has made structural changes to the suit property by constructing an extension on the room where she is operating her

business and constructed a new wall intentionally blocking a passage at the premises disrupting the status quo of the suit land. *15.* At the locus conducted on the 13th of November 2024, the respondent testified that she is not the one who made extensions on one of the structures on the suit land and that she does not own the said structure, this is a fact that court observed since the said the structure was occupied by a different person who was not party to the application.

- *16.* The respondent further testified that she is not the one who blocked the passage to the premises and it was not her who was operating a shop in the said passage that was blocked but rather her son, court made inquiries at locus and observed that it was not the respondent operating from the said blocked area nor was she the one who blocked the same. - *17.* The respondent led evidence that her shop was intact as it was at the time of issuance of the said temporary injunction order which evidence was not disputed by counsel for the applicants. - *18.* Counsel for the Applicants desires to hold the respondent accountable for acts that were not committed by her.

- *19.* In a contempt application, there should be sufficient evidence to show that the contemnor's acts constitute contempt and that it should be made clear that the respondent is alleged to have done the said acts that constitute willful breach of the order. - *20.* I am of the view that sufficient evidence was not led to show that the respondent disobeyed the said temporary injunction order issued by court and it cannot be inferred that the respondent is in contempt of the said order. - *21.* Therefore, the instant application is hereby dismissed with no orders as to costs.

## **I SO ORDER**.

**…………………………..**

## **NALUZZE AISHA BATALA**

## **JUDGE**

## **29th/11/2024**

# **Delivered on the 29th day of November, 2024 electronically via ECCMIS.**