Emenyu v Obwolo (Civil Miscellaneous Application 139 of 2022) [2023] UGHCCD 202 (23 June 2023)

Full Case Text

## The Republic of Uganda

In The High Court of Uganda Holden at Soroti

Miscellaneous Application No. 0139 of 2022

(Arising from Civil Appeal No. 012 of 2010)

(Arising out of Land Claim No. 002 of 2007)

$\mathsf{S}$

Emenyu Nicholas ::::::::::::::::::::::::::::::::::::

## Versus

- 1. Obwolo Nicholas - 2. Edeku Robert s/o Obwolo Nicholas - 3. Eboku John s/o Obwolo Nicholas 15 - 4. Ogango Silas s/o Eriangu

5. Erechu Tonny s/o Igiro

6. Achengo Grace

7. Engwenu William s/o Ogango John

<pre>::::::::::::::::::::::::::::::::::::

- 8. Erechu s/o Ogango 20 - 9. Oyuru Lawrence s/o Ogango - 10. Oyuru James s/o Obwolo Nicholas - 11. Egetu Joseph

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12. Ewiu Sevia s/o Egetu Joseph

## Before: Hon. Justice Dr Henry Peter Adonyo

## Ruling

This is an application brought by way of Notice of motion under section 98 of the Civil Procedure Act, sections 33, 14(1) & (2) of the Judicature Act, Order 52 rules

1 and 3 for orders that the respondents have acted in contempt of court orders $\mathsf{S}$ by refusing to comply with the decree made by court in HCCA No. 12 of 2010.

That the respondents be jointly committed to civil prison for contempt of court. That the respondents be condemned to pay Ugshs. 5,000,000 each as general damages.

That an order of eviction and demolition be issued jointly against the 10 respondents, their relatives or assignees from the applicant's land.

That the costs of this application be provided for.

The grounds of this application briefly are that the applicant was the successful party in Land Claim No. 2 of 2007 and Civil Appeal No. 12 of 2010 from which no appeal was preferred and that the respondents are relatives of the judgement debtor and are directly using the land for settlement and cultivation without any colour of right which acts amount to contempt of the court orders.

The respondents in a reply sworn by the $5^{\rm th}$ respondent stated that the $2^{\rm nd}$ to $12^{\rm th}$ respondent were not parties to the main suits and were not served with any court order and are merely utilizing their land.

That the $10^{th}$ , $11^{th}$ and $4^{th}$ respondents inherited the land from their father Eriangu, the 12th, 13th and 5th respondents occupy their late mother's land, the 6th respondent inherited from her late husband Ewiu Sebastian, the 7th respondent inherited approximately 2 acres from his father, 8th respondent is a child and therefore has no land of his own, the 9th respondent was given I acre of land by his late father.

In rejoinder, the applicant stated that the 18 acres which was decreed to him is the subject of this application, that to allow court dispose this application

summarily it would be important for court to curve the decreed land with the $\mathsf{S}$ help of a surveyor through a directive.

That the respondents are all direct beneficiaries and relatives of the $1^{st}$ respondent and the same court order binds them.

That on the 31st day of May 2022 this court issued a notice why eviction should not issue against the 1st respondent and he admitted to having left the land but continued cultivating the land with respondents hence this application.

That the $1^{st}$ , $2^{nd}$ , $3^{rd}$ , $10^{th}$ , $11^{th}$ and $12^{th}$ respondents live on their land having voluntarily left the applicant's land but continue to cultivate the applicant's.

The applicant was represented by M/s Erabu & Co. Advocates while the respondents were represented by M/s Ewatu & Co. Advocates. Both parties filed 15 written submissions which are on record and which have been considered.

This application is for contempt of court arising from a land matter. It is thus garnered on a civil contempt.

According to Halsbury's Law of England Volume 1(1) 2001 paragraph 458 civil contempt is defined as;

"... refuse or neglect to do an act required by a Judgment or Order of the Court within the time specified in the Judgment or Order, or to disobey a Judgment or Order, requiring a person to abstain from doing a specified act..."

Contempt of court is defined by the Osborne's Concise Law Dictionary cited with approval in Barbra Nambi Vs Raymond Lwanga MA No. 213/2017 as consisting of 25 conduct which interferes with the administration of justice or impedes or perverts the course of justice.

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Civil contempt consists of a failure to comply with a judgment or order of a court $\mathsf{S}$ or breach of an undertaking of court.

In Hon. Sitenda versus Secretary General of the East African Community Ref No.8/2012 it was pointed that the following conditions are necessary to prove contempt of court;

a. Existence of a lawful order 10

b. The contemnor's knowledge of that order

c. The potential contemnors' failure to comply i.e. disobedience.

a. Existence of a lawful order.

In this application, the applicant is invoking the powers of this Honourable Court while relying on a decision by this Honourable Court in Civil Appeal No. 12 of 2010 wherein the applicant was declared the owner of the suit land.

The background of this application is that this court by a judgment delivered by Hon. Lady Justice Henrietta Wolayo when it dismissed Civil Appeal No. 12 of 2010 Obwolo Nicholas vs Emenyu Emmanuel upheld the judgment and orders of His Worship Galiwango Mukuye, Magistrate Grade One Kaberamaido in 20 Kaberamaido Land Claim No. 002 of 2007 of Obwolo Nicholas vs. Emenyu *Emmanuel* dated 17th March 2010.

That decision was not appealed to the Court of Appeal and thus stands.

Counsel for the appellant submitted that the respondents herein are aware of the court judgment and order and thus are knowledgeable of the judgment and 25 order.

Counsel for the respondents on the other hand confirmed that it was only the $1^{\ensuremath{\text{st}}}$ respondent who was aware of the court judgment and order and that was why

he relocated his settlement from the decreed suit land and had not since utilized $\mathsf{S}$ the same but that the 2nd to 12th respondents had never been served with any court order and so do not know of the order as can be garnered from their affidavit in reply.

Counsel for the applicant further submitted that the respondents had built houses as well as cultivated the suit land with full knowledge of the court order.

Counsel for the respondent in reply submitted that the 1st respondent has not failed to comply with the order as seen under paragraph 6 of the affidavit.

That similarly the 2nd to 12th respondents have not disobeyed any order since they were not aware of the same.

My examination of the averments in this application confirms and proves that it 15 is true the respondents through the submissions of their counsel and their affidavit in opposition to this application do not deny the existence of that the judgment and orders in Kaberamaido Land Claim No. 002 of 2007 of Obwolo Nicholas vs. Emenyu Emmanuel nor the dismissal of the appeal by this court in Civil Appeal No. 12 of 2010 Obwolo Nicholas vs Emenyu Emmanuel by this 20

Honourable Court.

What is at stake is the fact this application has been largely filed against parties who were neither part of Civil Appeal No. 12 of 2010 Obwolo Nicholas vs Emenyu Emmanuel or Kaberamaido Land Claim No. 002 of 2007 of Obwolo Nicholas vs. *Emenyu Emmanuel* from which this application arose.

The cardinal principal of natural law is that no person should be condemned unheard.

The term natural justice denotes specific procedural rights in the English legal system which has been adopted by the Uganda legal system by the operations of

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our Constitution. It is similar to the American concepts of fair procedure and $\mathsf{S}$ procedural due process, the latter having roots that to some degree parallel the origins of natural justice.

Although natural justice has an impressive ancestry and is said to express the close relationship between the common law and moral principles, the use of the term today is not to be confused with the "natural law" of the Canonists, the mediaeval philosophers' visions of an "ideal pattern of society" or the "natural *rights*" philosophy of the 18th century.

Whilst the term natural justice is often retained as a general concept, in jurisdictions such as Australia, and the United Kingdom, it has largely been replaced and extended by the more general "duty to act fairly".

Natural justice is thus identified with the two constituents of a fair hearing, which are the rule against bias (nemo iudex in causa sua, or "no man a judge in his own cause"), and the right to a fair hearing (audi alteram partem, or "hear the other side").

The requirements of natural justice or a duty to act fairly depend on the context. 20 In the Canadian case of Baker v Canada (Minister of Citizenship and Immigration) (1999), the Supreme Court of Canada set out a list of non-exhaustive factors that would influence the content of the duty of fairness, including the nature of the decision being made and the process followed in making it, the statutory scheme under which the decision-maker operates, the importance of the decision to the 25 person challenging it, the person's legitimate expectations, and the choice of procedure made by the decision-maker.

In Uganda, the duty to act fairly is emphasised with the case of Sekagya V Attorney General (MISC. CAUSE NO. 2017 OF 2017) [2019] UGHCCD 192 (18 January 2019),

it was pointed out that the right to be heard imposes a peremptory duty to every $\mathsf{S}$ person, body or tribunal vested with power to resolve a dispute to fairly hear both parties and consider both sides of the case before making a decision on the matter; no man should be condemned unheard.

This Hon. Court in a decision by Hon. Justice David Ndikabona Batema in *Okupa* Elijah & 2020 Others vs A G and Others equally considered the same issue of the 10 right to be heard.

In general, courts are barred from deciding any case in which bias exists or bias may fairly be suspected. This principle embodies the basic concept of impartiality, and applies to courts of law, tribunals, arbitrators and all those having the duty to act judicially.

A public authority such as the court has a duty to act judicially whenever it makes decisions that affect people's rights or interests, and not only when it applies some judicial-type procedure in arriving at decisions.

It is thus imperative that the right to procedural fairness should be allowed as standard a to parties where an authority's decision would result in significant 20 impact on an individual.

From the perusal of **Kaberamaido Land Claim No. 002 of 2007 of Obwolo Nicholas** vs. Emenyu Emmanuel, whose judgment is dated 17thMarch 2010 and the dismissed *Civil Appeal No. 12 of 2010 Obwolo Nicholas vs Emenyu Emmanuel*, it is clear to me that the dispute in court in that case was adjudicated upon as between the applicant herein and the 1st respondent only, with the final orders even by the appellate judge being restrictive only as to the $1^{st}$ respondent.

The 2nd to 12th respondents herein were never parties to *Kaberamaido Land Claim* No. 002 of 2007 of Obwolo Nicholas vs. Emenyu Emmanuel, and as such the

applicant cannot seek to have effected a contempt order against them as doing $\mathsf{S}$ that would be contrary to all principles of natural justice.

Subsequently, the applicant can only seek to have enforced a contempt order as against the 1st respondent if indeed he is still in occupation of the suit land which was finally adjudicated upon which unfortunately has not been proved by the applicant.

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Moreover, the applicant has not even adduced any evidence that the 2nd to 12th respondents were served with any court order in respect of the holding in Kaberamaido Land Claim No. 002 of 2007 of Obwolo Nicholas vs. Emenyu *Emmanuel* whose judgment is dated 17th March 2010 and whose appeal in *Civil* Appeal No. 12 of 2010 Obwolo Nicholas vs Emenyu Emmanuel was dismissed and thus they were aware of the same.

That being the case an order of contempt of a court order cannot be issued against $2^{nd}$ to $12^{th}$ respondents herein.

If indeed the $2^{nd}$ to $12^{th}$ respondents are in occupation of the applicant's land, then then the best remedy for him would only be were he to institute a suit 20 against them wherein their rights would be determined one way or another and orders made accordingly.

It is also dishonest for the applicant to include the $2^{nd}$ to $12^{th}$ respondents to this application yet he had never sued them and who clearly have never had the opportunity to be heard by any court at all.

Were this court to heed to the applicant's aim then such would result in the breaking of any known vestiges relating to the due process of the law in the administration of justice.

In conclusion, since the applicant has failed to prove that the neither the $1^{\ensuremath{\text{st}}}$ $\mathsf{S}$ respondent nor the 2nd to the 12th respondents have disobeyed any lawful court order, then this application is found to lack merits and is thus dismissed with costs to the respondents.

I so order.

Hon. Justice Dr Henry Peter Adonyo

Judge

$23^{\text{rd}}\,\text{June 2023}$

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