In Re: Lubowa and Anor v Muweebwa and 2 Others (HC Miscellaneous Application No. 1826 of 2018) [2021] UGHCLD 41 (20 January 2021)

#### **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT KAMPALA**

#### **LAND DIVISION**

## 5 **M. A N0. 1826 OF 2018**

# **IN THE MATTER THE RULING OF THE HIGH COURT DATED 10TH MAY, 2018 IN HCCS NO.2244 OF 2016 FORMERLY CIVIL SUIT NO.51 OF 2006**

#### **AND**

## **IN THE MATTER OF JUDGMENT OF THE LCIII COURT AT NANGABO SUB-COUNTY DATED 28TH** 10 **SEPTEMBER, 2004**

#### **1. LUBOWA GONZAGA**

**2. KAWOOYA PATRICK-------------------------------------------------- APPLICANTS**

**V**

#### 15

### **1. MUWEEBWA JOHN BOSCO**

#### **2. MAGALA RONALD**

**3. KITUUKA EDWARD---------------------------------------------------------------- RESPONDENTS**

**Before: Hon. Lady Justice Olive Kazaarwe Mukwaya**

#### **RULING**

The Applicants brought this motion for contempt of court against the Respondents under sections 33 and 14(2)(b) of the Judicature Act, section 98 of the Civil Procedure

- 5 Act and Order 52 r 1 & 3 of the Civil Procedure Rules seeking; - a. A declaration that the acts of the Respondents individually or jointly and/or severally refusing to comply with the ruling dated 10th May 2018 of the High Court and the judgment of the LCIII Court at Nangabo sub-county ordering the respondents to vacate the kibanja that was distributed to Nalwanga Joyce 10 Mulinde by the LCIII Court are unlawful, illegal and amount to contempt of Court. - b. An order to take vacant possession of the whole or part of kibanja that was not distributed to Nalwanga Joyce Mulinde. - c. Consequent to (a) and (b) hereof, the Respondents as contemnors be ordered to 15 purge the contempt by immediately vacating the kibanja as had been ordered by the Court. - d. The contemnors be punished through imposition of a penalty as Court may deem fit. - e. Additionally, the contemnors be appropriately punished through imposition of a - 20 fine of Two Hundred Fifty Million Shillings (250,000,000/=) and an order to pay exemplary/punitive damages as Court may deem fit as sanctions for the contempt of Court. - f. Costs of this application.

The grounds of this application are fully set out in the affidavit of Mr. Kawooya Patrick, the 2 25 nd Applicant herein but briefly are as follows;

- 1. This Honourable Court on the 10th day of May 2018 through its ruling decreed that the plaintiffs' suit in HCCS No.2244 of 2016 was res judicata. - 2. In the same ruling the Court upheld the decision of the LCIII Court at Nabugabo sub-county and ordered that the parties adhere to and respect the decision of the 5 LCIII Court. - 3. The LCIII Court distributed the said kibanja amongst the parties as hereunder with 107ft at main road length, 240ft from the main road, back width 80ft covering the late Joyce Nalwada Mulinde's house and the remaining portion was attached to Kawooya covering the cemetery. - 10 4. Vacant possession had been successfully executed and both parties had occupied the kibanja as per the distributions; however, the Respondents who have no locus standi in this matter as decreed by Court later ignored the said distributions and have continued to trespass on the said kibanja allocated to the Applicant. - 5. That the Applicants have on several occasions through their lawyers' M/s 15 Nyanzi, Kiboneka & Mbabazi Advocates written to the Respondents seeking for peaceful vacation of the kibanja but in vain. - 6. Despite the LCIII Court judgment and the High Court ruling in HCCS No. 2244 of 2016, the Respondents have continued trespassing on the applicant's kibanja and have without authority caused a survey of the applicant's kibanja in addition 20 to having sold part of the same. - 7. The Respondents are in contempt of the LCIII Court judgment dated 28th September 2004 and the ruling in HCCS No. 2244 of 2016 as they are in possession of the kibanja contrary to the Court orders and have refused to vacate the same. - 8. The 1st 25 Respondent in total contempt of the LCIII Court judgment and the ruling in HCCS No.2244 of 2016 did depone an affidavit in reply in Miscellaneous Cause No.99 of 2018 in Nabweru Court challenging an application for execution of the decree.

- 9. The Respondents individually, jointly and severally are duty bound to comply with the judgment of the LCIII Court and the ruling of this Honourable Court in HCCS No.2244 of 2016 as a requirement of adhering, observing and protecting the rule of law and principles of good governance. - 5 10. The acts of the Respondents in refusing to comply with the ruling of the High Court and the judgment of the LCIII Court are outrageous and amount to impunity and contempt of Court. - 11. By disobeying the ruling of the High Court and judgment of the LCIII Court, the respondents need to be appropriately punished by way of detention in civil prison - 10 in addition to payment of compensation for wrongful deprivation of property belonging to the applicants as well as a fine of Two Hundred Fifty Million Shillings (250,000,000/=) - 12. That it is in the interest of justice that Court grants this application so that the Applicants can enjoy the fruits of the judgment as was subsequently recognised 15 by this Honourable Court in the ruling in HCCS No. 2244 of 2016.

Mr. Kawooya Patrick,swore an Affidavit in Support of the application, a supplementary affidavit and an affidavit in rejoinder.

#### Respondent's Reply

The 2nd respondent, Mr. Magala Ronald in his affidavit in Reply averred that the suit 20 premises were decreed to belong to the late Mrs. Joyce Nalwanga Mulinde measuring 107ft by 240ft by 80ft. He attached a copy of the LCIII Court judgment marked as annexure "A". He added that the Respondents who are some of the beneficiaries of the Estate of the late Mrs. Joyce Nalwanga Mulinde have since occupied the portion that was decreed to her. Attached was a photocopy of the photographs marked annexure 25 "B". He stated that the Applicants have no interest in the portion that was decreed to the late Mrs. Joyce Nalwanga Mulinde and that there are no other beneficiaries of the estate of the deceased who are claiming the suit land.

It was also his averment that the photos attached to the Applicant's application do not indicate that the Respondents have acted in contempt of the decree of Court. Mr. Magala went on to make several averments denying the allegations raised by the Applicants, concluding by stating that the Applicants have not raised sufficient grounds that warrant

5 the grant of the Application.

#### Applicant's Rejoinder

It was the Applicants' rejoinder that the LCIII Court decreed the land therein to Nalwanga Joyce Mulinde (the deceased) to live on the same for her life time or up to the time of her demise. He further averred that the Court decreed that the land belonged

- to the Kawooya family (the 2 10 nd Applicant's family) which land had been left under the care of the late Mulinde to look after. Upon his demise, he was never buried on the land because he was not a member of the clan. He went on to assert that the late Nalwanga being his widow continued to stay on the land and considering the time spent on the land, court decreed that she occupies part of the land for her life time. - 15 The Applicant stated that the Respondents are not known to him nor do they belong to the family of the deceased. This was further affirmed when court in HCCS No.2244 decreed that it would not consider appointing them as legal representatives of the late Nalwanga since there was no evidence to proof their suitability.

The Applicant maintained that the late Nalwanga was only entitled to live on the suit land for her life time. He added that after appearing in Court on the 29th 20 day of October 2020, the Respondents descended onto the suit land, threatened to evict his tenant and started grading the kibanja despite a plea to the Respondent's lawyer to prevail over them. He attached copies of the photographs and letter marked annexure "A".

Counsel for the parties filed submissions which I have taken into consideration in the 25 resolution of the issues.

Issues

- **1. Whether the Respondents should be held in contempt of court orders?** - **2. What remedies are available to the parties?**

### RESOLUTION

#### **Issue 1**

## 5 **Whether the Respondent should be held in contempt of court orders?**

According to the Uganda Civil Justice Bench Book, 1st edition, 2016 at page 118,

'*Disobedience to court orders often gives rise to contempt proceedings which are aimed at punishing the party in contempt and bringing them within the jurisdiction of the court.'*

- 10 There are two court orders in issue in this application. The first was issued by the LCIII court of Nangabo Sub- County Council, Wakiso District dated 2nd October 2004 arising out of its ruling dated 28th September 2004. The second was issued by this court on the 10th May 2018. - The Respondents were not parties to the LCIII court proceedings but they were 15 Plaintiffs in the HCCS 2244 of 2016, formerly HCCS No.51 of 2006. Sufficient reference to the LCIII court order was made by the presiding judge in HCCS 2244 of 2016 and there is no doubt that the Respondents were aware of it. The Affidavit in Reply sworn by the 2nd Respondent confirms that the Respondents were fully aware of the order of the LCIII court. - 20 The explanation given by the Respondents in response to this application is that they are beneficiaries of the estate of the late Nalwanga Joyce Mulinde and they took occupation of her portion of the land as distributed by the LCIII court at Nangabo. The Respondents averred that they could therefore not be held in contempt of the court order.

In their rejoinder to the Respondents' affidavit in reply, the Applicants averred that the LC III court decreed that the land, belonged to the Kawooya family and it had been left under the care of the late Mulinde to look after. When Mulinde died, he was not buried on the land because he was not a member of the clan. The 2nd Applicant averred that

5 the late Nalwanga, his widow, continued to stay on the land and considering the time spent on the land, court decreed that she occupies part of the land for her life time. According to the Applicants, the LCIII court order only granted the late Nalwanga Joyce Mulinde rights to the land during her lifetime.

These averments were not entirely accurate. I shall reproduce the ruling dated 28th 10 September 2004, here for clarity;

'*RULING:-*

*Because of all those reasons mentioned above, the LC III Court Nangabo has decided that the kibanja be divided between;*

- *a) The widow of Mulinde and;* - 15 *b) The Kawooya and family.*

*This will enable both parties to settle on the land peacefully and more so it will allow the widow of Mulinde to settle on the said Kibanja for the rest of her life. This has been done to keep peace, tranquillity and order in the community.*

*The L. CIII Court will go and distribute the kibanja as appropriate in the future date.'*

20 This court finds that the LCIII court ruled to divide the land between the widow Mulinde and the Kawooya family. If the court intended that the portion allocated to the widow would revert back to the Kawooya family after her death, it would have said so. It did not. It was not open to the Applicants to make inferences about the LCIII court intentions when the court order was available for perusal.

While it is true that the Respondents are not administrators to the estate of the late Nalwanga Joyce Mulinde, their position as beneficiaries to her estate has not been sufficiently challenged by the Applicants. The LCIII court made an allocation out of the Kibanja to the late Nalwanga Joyce Mulinde and it is this portion that the 5 Respondents claim to be in occupation of. If the Applicants were to be successful in a complaint for contempt against the Respondents, they had to demonstrate that the

- Respondents were in occupation of the part of the Kibanja allocated to the Kawooya family, not the entire Kibanja which was the subject of the LCIII court judgment. I find that the Applicants have not led cogent evidence to prove this claim. - 10 From the foregoing analysis, I find that this application cannot succeed. The Applicants interest in the land is limited to the portion allocated to the 2nd Applicant by the LCIII court. If the Applicants wish to challenge the late Nalwanga Joyce Mulinde's title to the land, and by extension her beneficiaries' title to the land, contempt proceedings were not the appropriate procedure in light of the LCIII court order. A fresh suit 15 outlining the alleged trespass, which is a continuing tort, may be filed against the Respondents, if the Applicants are possessed with sufficient evidence against them. In taking this step, the Applicants must always be mindful of the ruling of this court in HCCS 2244 of 2016.

#### **I hereby dismiss this application with costs to the Respondents.**

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## **Olive Kazaarwe Mukwaya**

**JUDGE**

## **20th January 2021**

25 Delivered by email to Counsel for the parties.