Bisaso v Tumuhirwe (Miscellaneous Application 8 of 2021) [2023] UGHCLD 213 (25 July 2023)

Full Case Text

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

#### [LAND DIVISION]

## MISC. APPEAL NO. 008 OF 2021

# [ARISING FROM MISC. APPLICATIONS NO. 1775 AND NO. 1043 BOTH OF 2020]

## [ALL ARISING FROM CIVIL SUIT NO. 0567 OF 2020]

**BISASO NATHAN**

**APPELLANT**

$\vee$

ORWIN TUMUHIRWE

**RESPONDENT**

## BEFORE: - HON. LADY JUSTICE P. BASAZA - WASSWA

#### RULING

Representation:

Mr. Nyonyintono Asuman and Ntono Lydia for the Appellant

Mr. Lwanga Emmanuel and Mr. Julius Kinyera for the Respondent

Introduction:

This Ruling is in respect of an appeal brought by the Appellant: Mr. Bisaso, under $[1]$

Section 79 of the Civil Procedure Act1 and Order 50 Rule 8 of The Civil Procedure

The Appeal is against the decision and Orders of the learned Ag. $Rules2$ .

Macululumme $25)$ ?.

$1$ Cap 71 $2$ S. I 71-1 Assistant Registrar: H. W Elias Kakooza, issued on March 31, 2021, vide Misc. Applic. No. 1775 of 2020 (hereinafter referred to as 'the impugned Decision').

In the Appeal, Mr. Bisaso seeks for an Order to vary or set aside the impugned Decision.

By the impugned Decision, the learned Aq. A / Registrar struck off the affidavit $[2]$ in reply of Mr. Bisaso from the Court record on the ground that it was filed out of time, without the leave of court.

The learned Ag. A / Registrar consequently treated that Application: **No. 1775 of 2020** as uncontested, and allowed it with the following orders;

- That since Mr. Bisaso harvested the crops, the order sought for the a) destruction of crops, was not given. - $b)$ That Mr. Bisaso pays **UGX 5,000,000 (Uganda Shillings Five Million only)** to Ms. Tumuhirwe as damages. - $C)$ That Mr. Bisaso pays a fine of **UGX 5,000,000 (Uganda Shillings Five Million only)** as sanction for his contemptuous conduct. - That Mr. Bisaso desists from further contemptuous conduct, and that he $d)$ (Bisaso) pays the costs of the application: No. 1775 of 2020.

Massimily mining 25/7.

### Background:

Ms. Tumuhirwe (the Respondent herein) instituted the Head suit: No. 567 of $[3]$ 2020 against Mr. Bisaso (the Appellant herein / 1st Defendant in the Head suit), and Mr. Hajji Hakim Kisekka (the 2nd Defendant in the Head suit).

In the Head suit, Ms. Tumuhirwe seeks inter alia for a Declaration that she is the rightful owner of the suit land comprised in Kyadondo Block 155 Plots: 1873, 1874, 1875 and 1879 at Buso- Namulonge, measuring approximately 3.11 acres, and for a Declaration that the Defendants are trespassers. She further seeks for an order of a permanent injunction to restrain the Defendants from dealing with the suit land.

- She (Tumuhirwe) also filed Misc. Applications: Nos. 1043 and 1044 of 2020, $[4]$ seeking for orders of a temporary injunction, and an interim injunction respectively, to restrain the Respondents / Defendants from allegedly opening new gardens on the suit land. Both applications were disposed of by consent of the parties, and the consent Orders were entered as such by the learned Assist. Registrar **HW Atukwasa Justine**, before whom the file hitherto was. - Subsequently on November 27, 2020 Ms. Tumuhirwe filed Misc. Applic. No. 1775 $[5]$ of 2020 for contempt of the consent orders issued vide Misc. Applications No. 1043 and 1044 of 2020. She sought *inter alia* for orders that Mr. Bisaso be arrested and committed to civil prison for contempt of court, and that the crops he allegedly planted be destroyed at his cost, and for general damages, a fine and the costs of the application.

Macambanning 20/7.

$[6]$ As already shown under paragraph [2] of this Ruling, Misc. Applic. No. 1775 of 2020 was granted. And being dissatisfied with the impugned decision, Mr. Bisaso filed the present appeal ML. No. 008 of 2021, hence this Ruling.

#### Grounds of Appeal:

- Mr. Bisaso raised the following grounds of Appeal in his motion and supporting $[7]$ affidavit: - That the learned Ag. A / Registrar erred in law and fact when he failed to i) consider his (Bisaso's) affidavit in reply and submissions in Misc. Applic. No. 1775 of 2020, and arrived at an erroneous decision. - That the learned Ag. A / Registrar erred in law and fact when he failed to ii) properly evaluate the law and evidence on record adduced by the Respondent, and made the impugned decision, that occasioned a miscarriage of justice. - That the learned Ag. A / Registrar erred in law and fact when he iii) entertained and allowed the Respondents' application for, amongst others, contempt of court when the same was not supported by lawful evidence. - $iv)$ That the learned Ag. A / Registrar misinterpreted the legal principles for the validation of pleadings filled out of time and for the grant of an order of contempt of a court order, when he made the impugned Decision.

Machillamme 2)}.

# Reply by the Respondent (the gist)

- In her affidavit in reply, Ms. Tumuhirwe contends; $[8]$ - That the appeal is untenable and time barred. $i)$ - ii) That Mr. Bisaso took nearly three (3) months to file his reply to Misc. Applic. No. 1775 of 2020 and did not address the substance of the allegations contained in the affidavits in support of the application. - That there is no justification to vary or set aside the impugned decision. iii)

# **Submissions of Counsel**

[9] Learned Counsel for both parties each filed their respective written submissions, that I have duly considered. For brevity, I will not reproduce their arguments here, and will only refer to them where necessary.

## Analysis by this Court:

- The four (4) grounds of appeal in the motion are basically only two (2) grounds, $[10]$ albeit, expressed repetitively. See below: - $1.$ The first ground challenges the validity of the impugned decision by the learned Ag. A / Registrar in striking off the affidavit in reply by Mr. Bisaso. - $2.$ The second ground challenges the evaluation of evidence by the learned Ag. A / Registrar when arriving at the impugned decision.

MaramWamme 25/7.

Before delving this determining this appear non-one, $[TT]$

points of law raised by learned Counsel for Mr. Bisaso (the Appellant), and by learned Counsel for Ms. Tumuhirwe (the Respondent), respectively.

- I will start with determining the former, and dependent on the outcome, I will $[12]$ determine the latter. The order of determining these points of law is explained below. - On the first point of law, learned Counsel for Mr. Bisaso (the Appellant), argued $[13]$ that the learned Ag. A / Registrar lacked Jurisdiction to adjudicate and make the impugned Decision on contempt of Court. That therefore the same was a nullity. - Citing Order 50 of the Civil Procedure Rules, and a decision by Mubiru, J., in $[14]$ Florence Dawaru v Angumale Albino & Anor3, learned Counsel for the Appellant argued that the impugned proceedings vide Misc. Applic. No. 1775 of 2020 were initiated at the instance of Ms. Tumuhirwe (the Respondent), and that therefore the learned Ag. A / Registrar did not have jurisdiction in the matter. - In answer, learned Counsel for the Respondent argued that the Appellant did $[15]$ not raise this ground in his pleadings, and cannot be allowed to depart from his pleadings. For that proposition, learned Counsel cited the decision in East Africa Law Society v the Attorney General of Uganda & 2 Ors4.

Machindumme 27/7.

&lt;sup>3 HCMA No. 96 Of 2016 (HC Circuit-Arua)

&lt;sup>4 Reference No. 3 of 2011 at the East African Court of Justice at Arusha. - $[16]$ In further answer, learned Counsel for the Respondent argued that the **Florence Dawaru case (supra)** is distinguishable from the present case. That in this case, the learned Aq. A / Registrar had jurisdiction to entertain the matter arising from the orders in Misc. Applic. Nos. 1043 and 1044, for which he had jurisdiction. - $[17]$ In rejoinder, learned Counsel for the Appellant argued that where an illegality manifests, the illegality supersedes all other matters including pleadings and any For this proposition, Counsel cited the decision in the time limitations. renowned case: **Makula International Ltd v His Eminence Emmanuel Cardinal** Nsubuga & Anor5 - I will first restate the settled principle on Jurisdiction: [18]

'That proceedings and or Orders of a court / Judicial officer that acts *ultra vires* his or her powers and or Jurisdiction, are a nullity. There would be no decision at all. No court can confer Jurisdiction upon itself'.

## See **Desai v Warsama6**.

- By virtue of the above principle; should it turn out that the learned Ag. A / $[19]$ Registrar lacked Jurisdiction to entertain the impugned proceedings in Misc. Applic. No. 1775 of 2020, then it would follow that no appeal can arise out of a nullity. There would be no decision from which to appeal against. - In harmony with that principle, I subscribe to the legal position enunciated in the $[20]$ Makula International case (supra) which learned Counsel for the Respondent That: 'A court of law cannot stand by and sanction what is illegal'. It cited.

Machine annual $25$ ] 3. 5 [1982] HCB page 11

6 [1967] EA at 351

does not matter at what stage the same is brought to the attention of court; whether raised in pleadings, or otherwise.

- $[21]$ That said, I will now turn to determine the question; 'Did the learned Ag. A / Registrar have jurisdiction to entertain the impugned proceedings in Misc. Applic. No. 1775 of 2020?' - As already stated, the impugned proceedings in Misc. Applic. No. 1775 of 2020 [22] were proceedings in an application for an order of contempt of court. 'Contempt of court' is defined as below:

'Contempt of court', in this context: 'Civil contempt', as opposed to Criminal contempt, is defined in **Black's Law Dictionary**7 to mean:

'The failure to obey a court order that was issued for another person's benefit...the act (or failure to act) complained of must be within the defendant's power to perform...'.

'Civil Contempt' was also defined in: Halsbury's Laws of England8, and cited by the Supreme Court in **Betty Kizito v Dickson Nsubuga and 6 Ors9** to mean:

'Consisting of disobedience to the Judgment, orders or other process of the court and involving a private injury'

The impugned proceedings for an Order for contempt of court in Misc. Applic. $[23]$ No. 1775 of 2020 arose out of Orders in applications for an injunction and an interim injunction, vide Misc. Applications Nos. 1043 and 1044 of 2020, respectively. Pursuant to **Order 50 of the CPR**, as amended by the recent **Civil** Procedure (Amendment) Rules, 2019 and in Practice Directions No. 1 of 2002 Malahummel $25/2$

9 SC Civ. Applic. Nos. 25 & 26 of 2021) Arising from SCCA No. 08 of 2018 [2022] UGSC 19 (6 June 2022)

issued by the Hon. The Chief Justice, the Judicial Powers of Registrars were Under the said Instruments, upon summons for Directions, enhanced. Registrars have power and Jurisdiction to deal with, and handle inter alia, interlocutory applications under Order XL1 of the CPR (temporary injunctions) and other applications for interim relief. Refer to Order X1A Rule 2 (1) (c) and Rule 7, and Order 50 Rules 3 and 6 of the Civil Procedure (Amendment) Rules, 2019.

- In view of the said provisions, the learned Ag. A / Registrar had the power and $[24]$ jurisdiction to entertain the applications for an injunction and an interim injunction, vide Misc. Applications Nos. 1043 and 1044 of 2020 from which the impugned proceedings in Misc. Applic. No. 1775 of 2020 arose. - It is the position now taken that: 'ordinarily a court should enforce its own orders $[25]$ even if it means trying someone for contempt of its orders'.

This is a position that was embraced by the Court of Appeal in: Jingo Livingstone Mukasa Vs Hope Rwaguma10 and in Geoffrey Odongo & Others Vs. Francis Atoke11 in which they cited, with approval, the holding in: Ayebazibwe Raymond v Barclays Bank Uganda Ltd & Ors12, per Madrama, J. (as he then was).

In that **Ayebazibwe Raymond** case (supra), like in the impugned proceedings in [26] Misc. Applic. No. 1775 of 2020, interlocutory orders by a Registrar had been violated by a litigant. The Court of Appeal qualified its approval of that position, Mashhull $n$ $2s$ }.

&lt;sup>10 Court of Appeal Civil Appeal No. 190 of 2015) [2021] UGCA 51 (19 July 2021)

&lt;sup>11 Court of Appeal Civil Appeal No 127 of 2015) 2017 UGCA 54

&lt;sup>12 HCMA No. 283 of 2012 (HC Comm. Div)

that such position pertains; 'where a court, the orders of which are alleged to have been contravened, is not functus officio'.

- In the present case, the Court was not, and still is not, functus officio. This is $[27]$ particularly so, considering that pursuant to Order XL1 Rule 4 of the CPR13, the learned Ag. A / Registrar has power and Jurisdiction to vary his earlier injunctive orders, or even set them aside. - I am thus in agreement with the submissions of learned Counsel for the [28] Respondent that the Florence Dawaru case (supra) is distinguishable from the present case. Clearly the learned Judge made his decision in that Florence Dawaru case (supra) in 2017, prior to the commencement of the Civil Procedure (Amendment) Rules, 2019. As it is now, the said Rules expanded the list of matters handled by Registrars to include inter alia applications under Order XL1 of the CPR. - In the result, I find no merit in the point of law raised by learned Counsel for the [29] Appellant on the Jurisdiction of the learned Ag. A / Registrar in Misc. Applic. No. 1775 of 2020. It is accordingly overruled. - I now turn to determine the second point of law that was raised by learned [30] Counsel for Ms. Tumuhirwe (the Respondent).

Masahuh mining 25

13 Order XL1 Rule 4 of the CPR provides that:

'Any order for an injunction may be discharged, or varied, or set aside by the court on application made to the court by any party dissatisfied with the Order'

- Citing Section 79 (1) (b) of the Civil Procedure Act, and Murangwa Bruno & Anor $[31]$ v Luyimbazi James14, learned Counsel submitted that this appeal is time barred and no leave was sought prior to its filing. He prayed that the Appeal be struck out. - In answer, learned Counsel for the Appellant only acknowledged that the law $[32]$ had been properly cited, but did not otherwise respond to this objection.

## Section 79 (1) (b) of the Civil Procedure Act provides that: [33]

'Except as otherwise specifically provided in any other law, every appeal shall be entered

- (a) Within... - (b) within seven days of the date of the order of the registrar, as the case may be, appealed against; but the appellate court may for good cause admit an appeal though the period of limitation prescribed by this section has elapsed'. - The record of proceedings in Misc. Applic. No. 1775 of 2020, and of this appeal, $[34]$ show that the impugned decision was made on March 31, 2021 and the present Appeal was lodged twelve (12) days later on April 12, 2021.

Clearly the Appeal was lodged outside the seven (7) day threshold stipulated under section 79 (1) (b) of the Civil Procedure Act.

Since no application for leave to file this appeal was made prior to filing the $[35]$ same, I agree with the submissions of learned Counsel for the Respondent that the Appeal is time barred.

ManWummers)7.

&lt;sup>14 HC Misc. Appeal No. 0016 of 2019 (Land Div.)

## Decision of Court:

In the final result, since this appeal is incompetent before this Court, it fails. It $[36]$ is thus struck out with costs to the Respondent: Ms. Tumuhirwe against the Appellant.

I so order,

Macmillanne 25/7.

P. BASAZA - WASSWA

**JUDGE**

July 25, 2023

Ruling delivered electronically on the Judiciary ECCMIS Portal and via email to the parties.

Email to:

asumannyonyintono@gmail.com For the Appellant

juliuskinyera7@gmail.com For the Respondent