Birungi Kabyanga v Kamasanyu and 3 Others (Civil Appeal 14 of 2022) [2024] UGHC 1122 (11 December 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL** 3 **CIVIL APPEAL NO. 0014 OF 2022 (ARISING FROM MISC. APPLN NO. 14 OF 2021 & LAND SUIT NO. 42 OF 2017)** 6 **BIRUNGI OLIVER KABYANGA :::::::::::::::::::::::::::::::::: APPELLANT VERSUS 1. ENID KAMASANYU** 9 **2. PATRICK MONDAY**

- **3. KURAMA JUSTUS** - **4. CHRISTINE KABATABAZI :::::::::::::::::::::::::: RESPONDENTS**

## 12 **BEFORE: HON. JUSTICE VICENT WAGONA JUDGMENT**

#### **Introduction:**

The appellant was aggrieved by the ruling of HW. Ayebare Daphine, Magistrate Grade One at Fort Portal Chief Magistrate's Court in Civil Misc. Application No. 14 of 2022 delivered on 4th 18 .02.2021 and appealed to this court against the said ruling asking court to have the same set aside with costs.

### 21 **Grounds of Appeal:**

The appellant premised her appeal on three grounds:


- **(1)The learned trial Magistrate erred in law and fact when she concluded/held that the Respondents/Agents and/or Servants were in** 3 **contempt of court orders arising out of FPT – 00 – CV – LD – CS – 42 of 2017.**

**(2)The learned trial Magistrate erred in law and fact when she failed to** 6 **properly evaluate the evidence on record thereby leading to a wrong conclusion.**

**(3)The learned trial Magistrate erred in law and fact when she selectively** 9 **evaluated the evidence on record thereby abandoning the sale and hire purchase agreement dated 29th July 2017 attached as annexure A on the applicant's affidavit in rejoinder.**

#### **Background:**

- 15 The appellant Birungi Oliver Kabyanga filed Civil Suit No. 42 of 2017 against the respondents seeking to recover 2.5 acres of land at Rubalika Village, Kakoga Parish, Rwimi Sub County, Bunyangabu District. The appellant contended that she 18 acquired the said land together with her brother from her grandfather, Alibereta - Mutabazi and later it was trespassed upon by the respondents. During the course of the trial, parties agreed that a temporary injunction be issued with orders that; (a) 21 the status quo is maintained, that is, each party to remain in the property they - occupy; (b) No person should sell, hire, mortgage or create any third party rights over the land; (c) Each party to bear their own costs of the application. The order was issued on the 9th 24 of November 2017. The appellant later filed Misc. Application No. 14 of 2021 for contempt where she alleged the respondents had


acted contrary to the temporary orders issued by Court. The respondents in their affidavits in reply denied the allegations. The trial Court agreed with the 3 respondents stating that the appellant had failed to led evidence of the land which she alleged was sold, hired or distributed. Court thus dismissed the application with costs to the respondent. The appellant being aggrieved lodged this appeal.

#### **Representation and Hearing:**

9 The appellant was represented by FIDA Uganda, Fort Portal office who filed written submissions on her behalf while the respondents were represented by M/s Bahenzire, Kwikiriza & Co. Advocates.

#### **Appellant's Legal Arguments:**

- 15 It was submitted for the appellant that this court as an appellate court has the same powers as the trial court per section 16 of the Judicature Act. That as such, this court can hear and re-evaluate the evidence on record and draw its own inference. - 18 (See: *Selle v Associated Motor Boats & Co. Ltd, [1968] E. A 123*). Learned counsel thus asked court to re-evaluate the evidence on record and draw its own inference. Learned counsel asked court to be pleased set aside the decision of the - 21 trial court with costs.

#### **Respondents' Arguments:**


Learned counsel for the respondent commenced by raising a point of law arguing that the appeal is overtaken by events. Learned counsel invited me to a number of

- 3 authorities where court observed that where the case serves no purpose, then it's deemed to have been overtaken by events. (See: *Star Media (T) Ltd &Anor v Gidion William Shirima& 2 others Land Appeal No. 291 of 2022, Felix* - 6 *Emmanuel Nkongwa v Andrew Kimwaga, HCMA No. 249 of 2016*). Learned counsel asserted that the appeal was overtaken by events since a judgment in the main suit was delivered in favour of the Respondents and the appellant lost. That - 9 as such the current appeal serves no purpose as such the same should be rejected with costs. - 12 On the merits, learned counsel submitted that there was no evidence of contempt. That as such the trial Magistrate rightly found that there was no contempt and court should be pleased to dismiss the appeal with costs. - 15

#### **Duty of the appellate Court:**

- 18 As the first appellate court, my duty is to subject the evidence presented to the trial court to a fresh and exhaustive scrutiny and re-appraisal before coming to my own conclusion. *(See: Father Nanensio Begumisa & 3 others vs Eric Tiberaga* - 21 *SCCA 17 OF 2000 [2004] KALR 236)*. I am duty bound to do a re-evaluation of the evidence on record of the trial court as a whole weighing each party's evidence, keeping in mind that as opposed to the trial court, I had no chance of seeing and - 24 hearing the witnesses testify to assess their demeanor and consistency. *(See: Uganda Breweries v Uganda Railways Corporation 2002 E. A).*


#### **Consideration by Court:**

- 3 I have considered the submissions of learned counsel for the Respondents that the appeal is time barred. In **Turyakira John Robert & Anor v URA, HCMC No. 166 of 2018**, court observed in relation to a matter being overtaken by events thus: - 6 *"The exercise of judicial power depends upon existence of a case or controversy. Therefore, the courts will not hear or decide a case unless it includes an issue that is not considered moot because it involves the public* 9 *interest or constitutional questions. Courts should be slow to embark upon unnecessary wide and general enquiry and should confine their decisions as far as may reasonably practicable within the narrow limits of the* 12 *controversy arising between the parties in the particular case."*

The Court of Appeal also considered the same issue in *Uganda Electricity Board v Charles Kabagambe- Civil Appeal No.58/2000* which decision was cited by Court

- 15 Appeal in *The Environment Action Network Ltd v Joseph Eryau, Court Appeal Civil Application No. 98 of 2005* where court observed that: - 18 *"The relief sought was realized before the appeal was heard. There are no more reliefs to be granted by this court."* - 21 In The Environment Action Network case (supra) court observed that: *"It is a well-known principle of law that courts adjudicate on issues which actually exist between litigants and not academic ones.* **See Uganda Corporation** - 24 **Creamaries Ltd &another v Reamaton Ltd. Civil Reference No.11of 1999, Court of Appeal(unreported).***"*


In the present appeal, the claim by the appellant is that the trial court erred when it found that the respondent did not disobey the temporary orders issued by Court. It

- 3 is my view, the fact that judgment was made in favour of the respondent does not take away the fact that the respondent could have acted in a manner that was contrary to the orders of court. Contempt is an offense against the court. Thus the 6 subsequent judgment did not take away such offense. I therefore find that this appeal is not overtaken by events. - 9 The second related aspect which is whether the appellant had a right to appeal against the ruling of the lower court as of right. It is settled law that an appeal is a creature of statute and a party cannot simply superimpose on himself or herself a 12 right to appeal. Where the law does not provide for a right to appeal, such right can - only be exercisable after securing leave to appeal. (See: *Kithende Appolinaris Kalyebogha v Mrs. Eleonora Wismer & 3 others HCMA No. 110 of 2022*). - 15

Section 76 of the Civil Procedure Act provides for orders which are appealable as of right and an order rejecting an application for contempt is not included. Section

- 18 76 of the Civil Procedure Act makes reference to orders which are appealable as of right. Order 44 rule 1 lists a number of orders which are appealable as of right and does not include an order dismissing an application for contempt. Thus the current - 21 appeal had to be filed after securing leave of court as provided for under Order 44 rule 2 of the Civil Procedure Rules. - 24 In the present appeal, the appellant did not seek leave of court to appeal, either from the lower court or this court. This appeal would ordinarily be defective on


such account. However, since the appellate court has the same powers as the trial court and this issue was never raised by learned counsel for the respondent, I grant 3 leave and validate the appeal in issue for purposes of resolving the dispute between the parties to finality and to avoid other possible complaints.

#### 6 **Merits of the Appeal:**

The appeal largely challenges the ruling of court rejecting the application for 9 contempt. I will thus first examine the law relating to contempt.

#### **Law Regarding Contempt:**

The *Black's law, 4th edition at page 390* defines contempt as a willful disregard or disobedience of a public authority. It is any act which is calculated to embarrass, 15 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 willful contravention of court's authority or dignity, or tending to impede or 18 frustrate the administration of justice, or by one who, being under the court's authority as a party to a proceeding therein, willfully disobeys its lawful orders or fails to comply with an undertaking which he has given.

In *Hon 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 24 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,* 3 *or to disobey a judgment or order requiring a person to abstain from doing a specific act."*

Further in **Hon. Sitenda Sebalu (supra),** Court laid down the test or grounds 6 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:*

9 *1. Existence of a lawful order;*

- *2. The Potential Contemnor's knowledge of the Order;* - *3. The potential contemnors ability to comply;* - 12 *4. The potential contemnor's failure to comply."*

It also laid down the standard of proof where it was stated thus:

15 *"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* 18 *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".*

21 Thus the standard of proof in contempt proceedings is the *'intermediate standard of proof'* where the evidence must be clear and convincing evidence or preponderance of evidence with conviction. This standard falls between *'balance*


*of probabilities'* (civil cases) and *'beyond reasonable doubt'* (criminal cases). The evidence must be reliable and trustworthy, and convincingly establish the facts.

### **Analysis:**

- 6 In the trial Court, the learned trial Magistrate in her evaluation found that whereas there was a temporary injunction order, the respondents did not act contrary to the said order. The appellant seem to state that she filed an affidavit in rejoinder where 9 she attached evidence of disobedience of the order of court which was not - considered by the trial Magistrate. The appellant submitted that there was an affidavit in rejoinder filed in reply to the respondents' affidavit in reply which had

12 annexure "A" (agreement of sale) which was not considered by the trial court.

I have carefully studied the pleadings in Misc. Application No. 14 of 2022 and I 15 did not find a copy of the reply. However, upon perusal of the main file (Land Civil Suit No. 42 of 2017) from where the application arose, I found a copy of the affidavit in rejoinder which was received by Court on 1st November 2021 and served upon learned counsel for the respondents on **8 th** 18 **.11.2021** together with the written submissions in rejoinder. I thus believe the failure to consider the affidavit in rejoinder and written submissions could have been as a result of misplacement

- 21 of pleadings in filing. Indeed in the ruling of court in Misc. Application No. 14 of 2021 for contempt, the learned trial Magistrate did not consider the applicant's affidavit in rejoinder and the annexure thereto plus the submissions in rejoinder. - 24 That being the case, since this court has the same powers as those of the trial court, I will consider the said affidavit in rejoinder and written submissions in this appeal.


I will now examine each of the ingredients of contempt to establish whether the ingredients were proved.

# 3 *(1)Existence of a lawful order;*

Hon. Justice Elizabeth Musoke in *Lukenge Hakim Vs. Hajjat Ajiri Namagembe and others, Court of Appeal Civil Application No. 0290 of 2020* emphasized

- 6 that;*"First, the order alleged to have been breached* "*must state clearly and unequivocally what should and should not be done.* - 9 I have carefully reviewed the temporary orders of injunction issued by Court in Civil Suit No. 42 of 2017 which are worded as follows: - *(a)The status quo is maintained that is each party to remain in the property* 12 *they occupy.* - *(b)No person should sell, hire. Mortgage or create any third party rights over the land.* - 15 *(c) Each party to bear own costs of the application.*

I find the above orders to be clear, concise and unequivocally provided what either party was prevented from doing. I therefore agree with the findings of the trial 18 Magistrate that the appellant proved that indeed an order existed.

## *(2)The Potential Contemnor's knowledge of the Order;*

It settled law that a party alleged to have breached the order must have had actual 21 knowledge of it. (See: *Lukenge Hakim* (supra). Proof of such notice can be either through an affidavit of service or the fact that the alleged contemnor was present


when the order was issued or he or she was aware of the order by all reasonable means. In the present case, the respondents do not deny being aware of the 3 injunction order alleged by the appellant to have been contravened. It is clearly captured under the order, that the same was by consent and the respondents participated. Therefore this ground was proved as rightly noted by the trial 6 Magistrate.

### (3)*The potential contemnors ability to comply*

It must be demonstrated by the appellant that the order alleged to have been 9 disobeyed was capable of compliance by the contemnor. That is, the contemnor should have the capacity to comply with the same. In the current appeal, I have not found anything impossible of compliance in the temporary injunction which the 12 respondents are alleged to have been disobeyed. Further, the respondents did not contend that they were unable to comply with the same. In the premises I find that the appellant proved this ground.

### 15 (4)*The potential contemnor's failure to comply:*

It should be demonstrated that the contemnor acted contrary to what he or she was directed to do or restrained from doing. Therefore, a party alleging breach bears the 18 burden to prove that the disobedience was intentional and not accidental. *(See: Lukenge Hakim (supra)*.

21 In the present appeal, the learned trial Magistrate found that the appellant failed to prove the acts alleged to have been committed by the respondents which were contrary to the injunction order. She stated: "*In the affidavit in support of the*


*application, the applicant does not state who the Respondents sold, hired or distributed to. She attached a letter from the RDC to the affidavit in support of*

- 3 *the application but the same is only which referral and not proof of the alleged contempt*…" - 6 I have equally reviewed the notice of motion and the supporting affidavit. In the motion and supporting affidavit, the appellant alleged that the respondents violated the injunction order issued by court by selling (1st and 3rd Respondent), hiring (2nd - Respondent and distributing to their children (4th 9 Respondent). Therefore, the appellant had the burden to lead evidence to prove these allegations. - 12 As evidence in support of the allegations, the appellant merely attached a copy of the order alleged to have been disobeyed as annexure A and a letter from the RDC Bunyngabu dated 11th August 2021 forwarding the appellant to the Chief 15 Magistrate Fort Portal where the RDC reported that the defendants had failed to respect the interim court order which directed them as stated in the order. That is the only evidence the appellant attached to the motion. The RDC's letter was only 18 a report and referral of the appellant to the Chief Magistrate Fortportal; it was not evidence. I find that such evidence did not, as found by the trial Magistrate, prove to the required standard the acts that the appellant alleged had been committed by 21 the respondents contrary to the injunction.

I have also considered the affidavit in rejoinder which the learned trial Magistrate 24 did not take into account probably due to misfiling of court documents. In the rejoinder, the appellant stated under paragraph 4, that whereas the 1st Respondent


was aware of the consent order, the 3rd Respondent proceeded to sell off part of the suit land and the 1st Respondent witnessed, hence changing the status quo of the 3 suit land which amounts to contempt of the court orders. She attached an agreement dated **29th July 2017** as evidence of the alleged sale. This evidence indeed was not considered by the trial Magistrate in her ruling. However, the 6 affidavit in rejoinder and annexure 'A' did not in any way prove the contempt which was alleged against the Respondents. In the order relied upon by the Appellant which was attached to the affidavit in support of the motion, it is stated that the order was issued on **9** 9 **th November 2017**. The agreement relied upon by the appellant to prove contempt was executed on *29th July 2017*. This was before the order alleged to have been disobeyed was issued. Therefore, the Respondents could not be found in contempt of orders of court which were none existent by 29th 12 July 2017. No other evidence was presented in court to prove the sale, hire and distribution of the suit property during the existence of the temporary consent order 15 which was relied upon by the appellant. The appellant was merely on a fishing expedition to find fault and hold the respondents liable for contempt but lacked evidence to prove her allegations in the motion. I therefore agree with the findings

18 of the trial Magistrate that the appellant failed to prove the claim of contempt against the Respondents.

- 21 Consequently, ground 1 and 2 of the appeal fails and ground 3 only succeeded where the materials constituted in the appellant's affidavit in rejoinder and written submissions were not considered by the trial Magistrate in adjudication of Misc. - 24 Application No. 42 of 2022. The said materials however, could not have changed the conclusions of the trial Magistrate and are of no significance in the appellant's


case on appeal. I thus dismiss this appeal with no orders as to costs on account that the appellant looks old and indigent. Ordering costs on her would amount to 3 unleashing further suffering to her already burdened life. I so order.


Vincent Wagona

6 **High Court Judge FORTPORTAL DATE: 11/12/2024**