Bikwasirwoha v Musana (HCT-01-CV-MA-0039-2025) [2025] UGHC 554 (14 July 2025)

# **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

### **HCT-01-CV-MA-0039-2025**

### **(ARISING FROM HCT-01-LD-CS-No. 004 of 2016)**

**BIKWASIRWOHA BEGURA DAVID :::::::::::::::::::::::::::::: APPLICANT**

## **VERSUS**

**MUSANA PETER :::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

# **BEFORE: HON. JUSTICE VINCENT WAGONA**

### **RULING**

### **Introduction:**

- 1. The Applicant, *Bikwasirwoha Begura David*, filed this application by Notice of Motion under **Section 98 of the Civil Procedure Act, Cap 282**, and **Order 52 Rules 1 & 3 of the Civil Procedure Rules**, as amended. The Applicant seeks the following orders: - **(1) A declaration that the Respondent's violation of the Court Order, specifically HCT-01-LD-CS-No. 004 of 2016, amounts to contempt of court.** - **(2) An order for the Respondent to be committed to Civil Prison.**


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- **(3) A fine of UGX 50,000,000/= against the Respondent as a sanction for contemptuous conduct.** - **(4) Costs of the application to be borne by the Respondent.** - 2. The application is supported by the affidavit of *Bikwasirwoha Begura David*, the Applicant. The grounds, in brief, are: - (1) The Applicant filed Civil Suit No. 004 of 2016 against *Steven Willy Kamusuka*, who had wrongly sold land comprised in Block 113 Plot 32 to the Respondent. - (2) This Honourable Court issued a court order against the Respondent in HCT-01-LD-CS-No. 004 of 2016. - (3) The Applicant served the Court Order on the Respondent. - (4) The Respondent violated the Court Order by failing to hand over the certificate of title for Block 113 Plot 32 to the Applicant. - (5) It is just and equitable that this Application be granted.

# **Reply by the Respondent:**

3. The Respondent, *Musana Peter*, opposed this Application through his Affidavit in Reply, dated 10th June 2025. In brief, the Respondent stated the following:


- (1) That he was a witness in HCT-01-LD-CS-No. 004 of 2016, which the Applicant filed against Steven Willy Kamusuka. He was served with a document dated 9 th May 2024, from the Applicant's lawyers. However, being a layman, he did not understand what was expected of him as he is not conversant with the English language. He did not bother about the said document since it appeared to be about a court case between the Applicant and *Steven Willy Kamusuka*, to which he was never a party. - (2) It was not until he received the instant Application, with his name as the Respondent, that he went to *Legal Aid offices* on June 5, 2025, for legal advice. It was then that he understood that an order to surrender his land title within 30 days, had been issued against him, but that he was out of time. - (3) He was advised by his lawyers, which advice he believes to be true, that he should follow the court order and surrender the original title in his custody to the Applicant. That he should instead pursue *Steven Willy Kamusuka* for a refund and compensation for breach of contract. He, therefore, prays that the Applicant accords him time to recover the said compensation to enable him to purchase an alternative piece of land where he and his family can relocate and vacate the suit land.


- (4) That he is willing and ready to hand over the original certificate of title to the Applicant as ordered by the court, now that he understands the order issued against him as explained by his lawyers. - (5) That he is an elderly man of advanced age who cannot handle prison conditions. He solely looks after his wife, who is currently ill and receiving treatment at Fort Portal Referral Hospital. He bears all medical bills and medication costs despite his meagre pay as a security guard. He is also solely looking after his child who has a mental disability coupled with epilepsy and requires daily medication. To prove these assertions, the Respondent attached photocopies of medical forms for both his wife and son to his Affidavit in Reply. - (6) That he barely has enough to sustain himself and his family. Therefore, condemning him to costs and a fine of UGX 50,000,000/= is equivalent to sentencing him to death. He, therefore, prayed to be pardoned by this Honourable Court and by the Applicant since he is ready and willing to hand over the said title to the Applicant. - (7) That it is in the interest of justice that this Application be dismissed with no orders as to costs.

## **Representation and Hearing:**


4. *Mr. Kwikiriza Herbert* represented the Applicant, while the *Legal Aid Project of the Law Society, Kabarole*, represented the Respondent. Both Counsel filed written submissions, which I have considered in this Ruling.

### **The Applicant's Submissions:**

- 5. *Mr. Kwikiriza* first provided a background of the matter, stating that the Applicant filed Civil Suit No. 004 of 2016 against *Steven Willy Kamusuka*, who had wrongly sold to the Respondent land comprised in Block 113 Plot 32. He further stated that this Honourable Court declared the Applicant as the lawful administrator of the estate of the late *Isaac Begura Kitalikibe*, cancelled the letters of administration obtained by *Steven Willy Kamusuka*, declared the transaction between the Respondent and *Steven Willy Kamusuka* regarding Block 113 Plot 32 to be a nullity, and ordered the Respondent to hand over the certificate of title for Block 113 Plot 32 to the Applicant within 30 days. The Applicant served the court order upon the Respondent, who has adamantly declined to hand over the certificate of title for Block 113 Plot 32 to the Applicant, hence this application. - 6. Regarding whether the Respondent is in Contempt of Court Order, Counsel submitted that under **Article 128(2) and (3) of the Constitution of Uganda**, *"no person or authority shall interfere with courts or judicial officers in the exercise*


*of their judicial functions; and all organs and agencies of the state shall accord to the courts such assistance as may be required to ensure the effectiveness of the courts."* Furthermore, under that **Article 21(1)** of the same grand norm, it is stated that: *"all persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law."* Therefore, that, persons must obey the law as part of the rule of law precepts of constitutionalism and democracy.

- 7. Counsel cited the case of **Hon. Sitenda Sebalu vs. The Secretary General Of The East African Community (Reference No. 8 of 2012)**, where the regional court, after upholding that contempt of court proceedings involve a court invoking its inherent powers to deal with such situations when called upon, quoted **Halsbury's Laws of England (4th Edition Paragraphs 284, 458)**, stating: *"It is civil contempt to refuse or neglect to do an act required by a judgment or order of the court within the time specified in that judgment, or to disobey a judgment or order requiring a person to abstain from doing a specific act."* - *8.* Further, that it was held in the aforementioned case that it is a plain and unqualified obligation of every person against or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until it is


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discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. Further, the learned justices of the regional court emphasized this latter point, stating: *"It follows from the above authorities that the position of the law is clear: as long as court orders are not discharged, they are valid, and since they are valid, they should be obeyed. That being the case, the only way in which a litigant can obtain reprieve from obeying a court order before its discharge is by applying for and obtaining a stay. As long as the order is not stayed, and is not yet discharged, then a litigant who elects to disobey it does so at the risk and pain of committing contempt of court."*

*9.* Counsel referred to the case of **Uganda Super League vs. Attorney General Constitutional Application No. 73 of 2013**, where *Justice Kiryabwire*, citing **Black's Law Dictionary 7th Edition**, defined Contempt of Court as: *"Conduct that defies the Authority or dignity of court."* He further cited **Halsbury's Laws of England [Volume 9, 4th Edition]**, where Contempt of Court was classified into two categories: *"Criminal contempt, which is committed by words or acts that impede the administration of justice, and Civil Contempt, which arises when there is disobedience to judgment, orders, or other court process and involves private injury."*

 - 10. Counsel also cited the case of **Nsangiranabo vs. Col. Kaka Bagyenda and Anor (Civil Miscellaneous Application 671 of 2019) (2021 | UGHC 23 (19 April 2021))**, where the position of the law is that for contempt of court to be found, there has to be a lawful order, the potential contemnor's knowledge of the order, and the potential contemnor's failure to comply, that is, disobedience of the order. - 11. Counsel submitted that, in the instant case, on 13th October 2023, this Court delivered its decision in Civil Suit No. 004 of 2016 in the presence of Mr. Kwikiriza Herbert, Counsel for the plaintiff, and Mr. Bwiruka Richard, counsel for the Defendant. That the Court declared that the sale of land comprised in Burahya Block 113 Plot 32 between the defendant Steven Kamusuka and DW2 (Musana Peter—the Respondent herein) is a nullity, and the Respondent was ordered to hand over the title to the said land to the Applicant within 30 days from the date of delivery of the judgment. The order was extracted by the Applicant and served on the Respondent on May 9, 2024. That this makes the Respondent fully aware of the impugned Order. The Respondent violated the court Order when he failed to hand over the certificate of title for Burahya Block 113 Plot 32 to the Applicant. - 12. As such, Counsel submitted that the Respondent should be held in contempt of court, be arrested and committed to civil prison, and fined UGX 50,000,000/= for


the contemptuous conduct. Counsel referred to the case of **Nsangiranabo vs. Col. Kaka Bagyenda and Anor (Miscellaneous Application 671 of 2019) UGHC 23 (19 April 2021)**, where it was held that civil contempt is punishable by way of committal to civil prison or by way of sequestration. That it can also be punishable by way of fine or an injunction against the contemnor, as per **Stanbic Bank (U) Ltd & Jacobsen Power Plant Ltd vs. The Commissioner General Uganda Revenue Authority MA 42/2010**. That according to the case of **Re Contempt of Dougherty 429, Michigan 81, 97 (1987)**, imprisonment for civil contempt is properly ordered where the defendant has refused to perform an affirmative act required by the provisions of an order which, either in form or substance, was mandatory in character. Counsel also prayed for the costs of this Application under **Section 27 of the Civil Procedure Act**.

## **Respondent's Submissions:**

13. In reply, learned Counsel for the Respondent submitted that, in the case of **Ssempebwa and others vs. Attorney General, (2019) 1 EA 546**, the Court set down the ingredients of civil contempt that an applicant must prove to succeed, which include:

a) That the order was issued; b) That the order was served or brought to the notice of the alleged contemnor; c) That there was non-compliance with the


order by the respondent; and d) That the non-compliance was wilful and *mala fide*.

- 14. That in the same case, it was stated that the first three ingredients must be proved on the balance of probabilities, while the fourth ingredient must be proved beyond reasonable doubt. Furthermore, that in the case of **Betty Kizito vs. Dickson Nsubuga and 6 others, Civil Application Nos. 25 and 26 of 2021**, the Supreme Court considered local and foreign persuasive authorities on contempt principles and further expounded on the ingredients of contempt as follows: *"With regard to the existence of a valid order, the court stated that the order must be obeyed in totality and a party who chooses to disobey the Order without good reason risks being held in contempt. In contempt, the alleged contemnor must have intentionally done that act that the order prohibits or intentionally failed to do the act that the order compels."* - 15. Counsel submitted that under **Section 98 of the Civil Procedure Act** and the Supreme Court of Uganda case of **Nicholas Roussos vs. Gulam Hussein Habib Virani & Anor; SCCA No. 09 of 1993**, which cited the authority of **Zirabamuzaale vs. Correct (1962) EA 694**, sufficient cause must always be left to the court's unfettered discretion, and that ignorance of procedure by an unrepresented defendant may amount to sufficient cause.


- 16. In the instant case, Counsel argued that it is clear the Respondent was unrepresented, which definitely qualifies him as the "unrepresented defendant" referred to in **Nicholas Roussos vs. Gulam Hussein (supra)**. Furthermore, in the case of **Watwero Enterprise Ltd vs. Gulu District Local Government Misc. Application No.3 of 2004**, it was observed that "on the conditions to be satisfied for civil contempt, there is need for proof beyond reasonable doubt of the alleged contemnor's deliberate conduct that has the consequences of disobeying the court order in issue. Where the breach of the court order is unintentional and accidental, then court may exercise discretion to impose no penalty." - 17. Counsel further cited the dictum of the Supreme Court of Canada in the case of **Carey vs. Laiken, 2015 SCC 17**, which the apex court found persuasive in the case of **Betty Kizito vs. Dickson Nsubuga and 6 others, Civil Application Nos. 25 and 26 of 2021**. The Canadian court stated: *"If contempt is found too easily, a court's outrage might be treated as just so much bluster that might ultimately cheapen the role and authority of the very judicial power it seeks to protect. As this court has affirmed, contempt of court cannot be reduced to mere means of enforcing judgments."*


18. Counsel submitted that, in the instant case, the Respondent did not understand the letter served on him by the Applicant's Advocates, and that that is why he never complied with the Court Orders. That as such, his non-compliance was not wilful. Furthermore, that the Respondent is ready and willing to hand over the impugned certificate of title to the Applicant immediately. Counsel invited this Court not to hold the Respondent in contempt of Court since he was prevented by sufficient cause from obeying the Order of Court. Counsel prayed that this Application be dismissed with no orders as to costs.

## **Issues for Determination:**

19. In my view, this case raises the following issues for determination.

- **(1)Whether the Respondent is in contempt of the court order issued in HCT-01-LD-CS-No. 004 of 2016.** - **(2)What remedies are available to the Applicant, if any?**

## **CONSIDERATION BY COURT:**

**Issue 1**: **Whether the Respondent is in contempt of the court order issued in HCT-01-LD-CS-No. 004 of 2016.**

20. The **Black's Law Dictionary, 4th edition at page 390** describes **contempt of court** as the wilful disregard or disobedience of a public authority. It is any act which is calculated to embarrass, hinder, or obstruct court in administration of


justice, or which is calculated to lessen its authority or its dignity. It is committed by a person who does any act in wilful contravention of court's authority or dignity, or tending to impede or frustrate the administration of justice, or by one who, being under the court's authority as a party to a proceeding therein, wilfully disobeys its lawful orders or fails to comply with an undertaking which he has given.

- 21. In **Hon. Sitenda Sebalu vs. The Secretary General of the East African Community, in Reference No. 8 of 2012**, the East African Court of Justice citing the authors of **Halsbury's Laws of England, 4th Edition page 284 paragraph 458** described **civil contempt** thus: *"it is a civil contempt to refuse or neglect to do an act required by a judgment or order of the court within the time specified in that judgment, or to disobey a judgment or order requiring a person to abstain from doing a specific act."* - 22. The main import of the doctrine of contempt of court is to ensure that the **orders of court are respected** and to protect the **sanctity of the institution** that issues such orders by seeing to it that the orders issued are put into effect. This was elaborately brought out by *Romer J* in **Hadkinson v Hadkinson [1952] All ER**, where he relied on the case of (**Church vs. Cremer (1 Coop Temp Cott 342)** where it was held thus; *"A party who knows of an order whether null or valid,*


*regular or irregular, cannot be permitted to disobey it. . . as long as it existed."* The doctrine is also hinged on the principle of law that the whole purpose of litigation as a process of judicial administration is lost if orders by court through the set judicial process, in the normal functioning of the courts, are not complied with in full by those targeted and/or called upon to give due compliance. Further, it is not for that party to choose whether or not to comply with such order. (See **Housing Finance Bank Ltd & Another vs. Edward Musisi, Miscellaneous. Application No. 158 of 2010**).

23. In addition to the above, orders of court must be **complied with in totality** in all circumstances by the party concerned, subject to the party's right to challenge the order in issue in such a lawful way as the law permits. It is the position of the law that to disobey an order of court or offer no explanation for non-compliance to the issuing court, at any party's choice or whims, on the basis that such an order is null or irregular, or is not acceptable or is not pleasant to the party concerned is to commit contempt of court. (See **Andrew Kilama Lajul vs. Uganda Coffee**

## **Development Authority & 2others, Misc. Application No. 324 of 2020**).

24. In our legal, constitutional and jurisprudential matrix, the doctrine of contempt is not specifically provided for in any statutory legislation either principal or subsidiary. Recourse is therefore made to the common law and the doctrines of

 equity as far as possible. Therefore, a review of case law on contempt is instructive as it offers in-depth guidance (See **Court of Appeal Civil Appeal No. 190 of 2015, Jingo Livingstone Mukasa vs. Hope Rwaguma at page 13**). Courts in adjudication of contempt of court claims always refer to the provisions of **Section 98 of the Civil Procedure Act Cap. 284** and **Section 33 of the Judicature Act** and the guidance from case law in Uganda and from common law jurisdictions. However, **Articles 128 (2) & (3)** as well as **Article 21 (1) of the Constitution** are instructive in matters of contempt of Court.

- *25.*The East African Court of Justice in **Hon. Sitenda Sebalu vs. The Secretary General of the East African Community, in Reference No. 8 of 2012** laid down the test or grounds which must be proved in order to succeed on an application for contempt thus: *"To prove contempt, the complainant must prove the four elements of contempt, namely:* - *a) Existence of a lawful order;* - *b) The Potential Contemnor's knowledge of the Order;* - *c) The potential contemnor's ability to comply;* - *d) The potential contemnor's failure to comply."*

*26.*The court also laid down the standard of proof where it was stated thus: *"The standard of proof in contempt proceedings must be higher than proof on the*


*balance of probabilities, and almost, but not exactly, beyond reasonable doubt. The jurisdiction to commit for contempt should be carefully exercised with the greatest reluctance and anxiety on the part of the court to see whether there is no other mode which can be brought to bear on the contemnor".*

Existence of a lawful order:

27. The Applicant has demonstrated that this Court issued a clear order in **HCT-01- LD-CS-No. 004 of 2016** on 13th October 2023, declaring the sale of land in Block 113 Plot 32 null and ordering the Respondent to hand over the certificate of title within 30 days. This ingredient is undisputed.

## Potential contemnor's knowledge of the order:

28. The Applicant asserts that the order was served on the Respondent on 9th May 2024. The Respondent acknowledges receipt of a document from the Applicant's lawyers on this date. However, he claims to be a layman not conversant with the English language and thus did not understand its contents or its relevance to him since he was not a named party in the original suit. He only understood the order's implications upon receiving the current application and seeking legal advice on June 5, 2025. While literal service is established, the Respondent's assertion regarding his lack of understanding due to his illiteracy and lack of legal


representation at the time raises a crucial point regarding actual knowledge and comprehension of the order's mandate.

Potential contemnor's failure to comply (disobedience of the order):

29. It is undisputed that the Respondent did not hand over the certificate of title within the stipulated 30 days from the judgment date (13th October 2023) or from the date of service (9th May 2024). This non-compliance is clear.

Non-compliance was wilful and *mala fide*:

- 30. This is the most contentious ingredient in this case and is, as held in **Ssempebwa and others vs. Attorney General, (2019) 1 EA 546**, required to be proved beyond reasonable doubt. The Applicant argues that since the order was served, the Respondent's failure to comply constitutes wilful disobedience. The Respondent, conversely, contends that his non-compliance was not wilful but rather due to his ignorance and lack of understanding of the order's contents and its implications for him as a witness in the original suit. He emphasizes that as soon as he understood the order through legal counsel, he expressed willingness to comply. - 31. The Supreme Court in **Betty Kizito vs. Dickson Nsubuga and 6 others, Civil Application Nos. 25 and 26 of 2021**, emphasized that for contempt, "the alleged contemnor must have intentionally done that act that the order prohibits or


intentionally failed to do the act that the order compels." This implies that mere non-compliance, without a **deliberate or wilful intent to defy the court**, might not amount to contempt.

- 32. The Respondent's defence hinges on his being an "unrepresented defendant" and his ignorance of the English language and legal procedure. **Nicholas Roussos vs. Gulam Hussein Habib Virani & Anor; SCCA No. 09 of 1993**, citing **Zirabamuzaale vs. Correct (1962) EA 694**, supports the notion that ignorance of procedure by an unrepresented defendant may constitute "sufficient cause." Furthermore, **Watwero Enterprise Ltd vs. Gulu District Local Government Misc. Application No.3 of 2004** states that where the breach of a court order is unintentional and accidental, the court may exercise its discretion not to impose a penalty, requiring proof beyond reasonable doubt of deliberate conduct. - 33. The Respondent's immediate willingness to comply upon obtaining legal advice, coupled with his explanation of being a layman and unrepresented at the time of service, strongly suggests that his initial non-compliance may not have been wilful. His presentation of medical forms for his ill wife and disabled child further demonstrates his current difficult circumstances and adds weight to his plea for leniency, rather than outright defiance. The Canadian Supreme Court's dictum in **Carey vs. Laiken, 2015 SCC 17**, cited in **Betty Kizito (supra)**, serves as a


reminder that contempt of court should not be reduced to merely a means of enforcing judgments, and an overly eager finding of contempt can diminish the court's authority.

- 34. Given that the onus is on the Applicant to prove wilfulness beyond a reasonable doubt, and considering the Respondent's plausible explanation for his delay and his current willingness to comply, I am unable to conclude that his noncompliance was wilful and *mala fide.* While a court order should be obeyed, the circumstances of this case suggest a misunderstanding of the Court Order rather than a deliberate defiance. - 35. Therefore, the Respondent's actions, while constituting non-compliance with a court order, do not meet the high threshold of wilful and *mala fide* disobedience required for a finding of contempt of court.

## **Issue 2**: **What remedies are available to the Applicant, if any?**

- 36. Since the Respondent's conduct does not amount to contempt of court due to the lack of wilful and *mala fide* disobedience, the Applicant's prayers for a declaration of contempt, committal to civil prison, and a fine of UGX 50,000,000/= cannot be granted. - 37. However, the underlying obligation to comply with the court order remains. The Respondent has now, through legal advice, understood the order and has


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expressed his willingness to comply by handing over the original certificate of title. The purpose of contempt proceedings, while maintaining the dignity of the court, is ultimately to ensure compliance with its orders. The court's primary objective at this juncture should be to facilitate compliance with the impugned Order. Therefore, the appropriate course of action is to ensure the Respondent complies with the Orders of Court issued by this Court in **HCT-01-LD-CS-No. 004 of 2016.**

## **Conclusion:**

- 38. Given the findings above, and to bring this dispute to a final resolution in line with **Section 98** of the **Civil Procedure Act Cap 282**, which empowers this Court to issue orders necessary for the ends of justice or to prevent abuse of court process, I make the following orders: - **(1)The Respondent is ordered to hand over the duplicate certificate of title for the land comprised in Burahya Block 113 Plot 32 to the Applicant within seven (7) days from the date of delivery this Ruling.** - **(2)Failure to comply with the above Order will automatically result in the Respondent's arrest and committal to Civil Prison for a period of 6 months.** - **(3)Each party shall bear their own costs for this Application.**


I so Order.

**Dated at Fort Portal this 3rd day of July 2025**


Vincent Wagona

**High Court Judge**

**FORTPORTAL**

**Ruling delivered on 14th July 2025.**