Kagimu & Another v Sekabanja & 2 Others (Miscellaneous Application 2978 of 2023) [2024] UGHCLD 130 (27 May 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [LAND DIVISION] MISCELLANEOUS APPN NO.2978 OF 2023** *(Arising from Misc. APP No.770 of 2020) (Arising from Civil Suit No. 425 of 2020)*

# **1. KAGIMU SAMUEL 2. KIWANUKA JOHN ::::::::::::::::::::::::::::::::::::::::: APPLICANTS**

## **VERSUS**

## **1. JULIET SEKABANJA**

## **2. JOEL SEKABANJA**

**3. MIRIAM NAMUTEBI ::::::::::::::::::::::::::::::::::: RESPONDENTS**

# **BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA RULING.**

#### *Introduction:*

1. This was an application by notice of motion brought under Section 33 of the Judicature Act, Sections 64 and 98 of the Civil Procedure Act, Order 52 rules 1 & 3 of the Civil Procedure Rules (CPR) for orders that: -

- i) That the Respondents Juliet Sekabanja, Joel Sekabanja and Miriam Namutebi be committed to Prison for contempt of court orders. - ii) In the alternative without prejudice to the 1st prayer, that the Respondent be condemned to punitive damages of UGX 250,000,000/= two hundred and fifty million shillings. - iii) That the Respondent's actions of disobedience of a temporary injunction order issued by this court amount to contempt of court. - iv) That the Respondents and their agents be further restrained from evicting the Applicants, destroying their properties, exhuming the remains of the applicants departed relatives from the suit land until the determination of the man suit. - v) That the respondents' actions of eviction, demolition of the applicants' house and the arrests by the respondents was in disobedience of the temporary injunction order to maintain the status quo and amounts to contempt of court.

- vi) Fine for contempt of court order. - vii) Costs of the application be provided for.

#### *Background;*

- 2. That the respondents filed Misc. Application N0.770 of 2020 seeking for a temporary injunction order against the applicants, agents and nominees and assignees restraining them from evicting, selling, transferring registering or doing anything detrimental to the applicants on the suit land. - 3. On the 1st day of September 2020, this honorable court granted the said temporary injunction application pending determination of the main suit. - 4. That with deliberate disregard of the court order, the respondents demolished the applicants' house, evicted the applicants and had them arrested. - 5. The actions of the respondents' amount to contempt of court since they defied the temporary injunction order issued by court, hence this application.

#### *Applicant's evidence;*

6. The application is supported by two affidavits by the two applicants which briefly state as follows;

- i) That the respondents filed Misc. Application No.770 of 2020 seeking for temporary injunction order against the applicants restraining them from alienating, transferring or selling the suit land. - ii) That on the 1st day of September 2020, this honorable court granted the said temporary injunction order maintaining the status quo of the suit land pending the determination of the suit land. - iii) That around 2022 the respondents attacked the applicants, demolished their house, exhumed the remains of the applicants' dead relatives and causing the arrest of the 1st applicant. - iv) That the respondents brought security personnel on the land and they have continued destroying the applicants' crops and have denied the applicants access to the suit land. - v) That the respondents have always been aware of the temporary injunction order and in total disregard of the said order they continued alienating with the suit land. - vi) That the acts of the respondents amount to contempt of a court order.

#### *Respondent's evidence;*

- 7. The application is responded to by affidavits deponed by the 2nd and ,3rd respondents and Zam Nampomwa who alleges to be well conversant with the facts of the case, which affidavits briefly state as follows; - i) That the 3rd respondent holds a power of attorney to depone an affidavit in reply on behalf on the 1st respondent. - ii) That the 1st respondent through his lawful attorneys filed Civil Suit No.425 of 2020 herein referred to as the main suit. - iii) That around July 2020 several men including the LC1 Chairman Mubiru Kamada had attacked the 1st respondent's land and cut down banana plantations. - iv) That it is on the said background that the temporary injunction order was issued and the applicants did not have any plantations on the suit land. - v) That it is not true that the applicants have ever had a house on the suit land. - vi) That the only portion of the land the applicants have been in occupation of was the grave site.

- vii) That the respondents neither their agents have ever exhumed the remains of the applicants' late relatives from the suit land. - viii) That the respondents purchased the entire Kibanja including the grave site and that's when exhumation was done by sons of Musoke Dezideriyo after we had paid his son Mbalule to relocate his father's remains. - ix) That the arrest of the applicants was due to their criminal activities where on two occasions they hired men to come and take over the respondents' gardens. - x) That on each of those instances they assaulted the occupants including the respondents who were on site hence the criminal case CRB 077/20. - xi) That the applicants have connived with the LC1 to disturb the respondents' quiet possession of the suit land. - xii) That the applicants started surveying the land with survey machines with property agents. - xiii) That it is the applicants who have always sought to violate the temporary injunction order.

#### **Representation;**

8. The applicants were represented by Senkumi Nicholas of M/s Baraka Legal Associated Advocates whereas the respondents were represented by Opio Moses, Sekabanja Kato and Donald Munanura of M/S Sekabanja and Co Advocates. Both parties filed their submissions which I have considered in the determination of this application.

#### *Issues for determination;*

- *i) Whether the respondents acted in contempt of a court order?* - *ii) What remedies are available to the parties?*

#### *Resolution and determination of the issues;*

Issue 1; whether the respondent acted in contempt of a court order?

9. Counsel for the respondents raised a preliminary objection in his submissions which is to the effect that the 2nd and 3rd respondents were not party to Misc. App No.770 of 2020 where the temporary injunction order arises from and the same parties could never be in contempt of the same order.

- 10. This is an objection that will be determined in the resolution of the issues to this application. - 11. Black's law Dictionary 7th edition defined Contempt of court to mean; "Conduct that defies the Authority or dignity of court." Further Halsbury's laws of England Volume 9, Where contempt of court is classified into civil contempt and criminal contempt, criminal contempt which is committed by words or acts that impede the administration of justice. - 12. Whereas civil contempt arises when there is disobedience to judgment orders or other court process and involves private jury. Further, civil contempt has been defined to mean any form of conduct which abuses and makes a mockery of the judicial Process and which thus extends its pernicious influence beyond the parties to the action and affects the interest of the public in the administration of justice, is contempt of court**.** *(See; Uganda*

# *Super League v Attorney General Constitutional Application*

### *No.73 of 2013 Before Hon Justice Geofrey Kiryabwire)*

13. The rationale behind the law on contempt of court is about presenting and safeguarding the rule of law, a party who walks through the justice door with a court order in his hands must be assured that the court order will be obeyed by those to whom it is directed, this is because the public has an interest and a vital stake in the effective and orderly administration of justice.

- 14. In a matter of contempt of court, an applicant needs to prove the following elements and then the respondent will bear the evidential burden in relation to willfulness, if the respondent fails to advance evidence that establishes a reasonable doubt as to whether non-compliance was willful and malifide, then contempt would be established beyond reasonable doubt. For contempt of court to exist the following elements should be proved; **Existence of a lawful order, potential contemnor's knowledge of the order and potential contemnor's failure to comply, that means disobedience of the order***. (See; Jack Erasmus Nsangiranabo Vs Col. kaka Bagyenda & Attorney General, supra)* - 15. I will proceed to qualify the above elements to establish contempt of court in the instant application.

# *i) Existence of a lawful order;*

16. It is the submissions of the applicants that the order arises from Misc. APP No.770 of 2020 which was issued by the learned registrar Her Worship Atukwasa Justine and the same is attached on the application issued on the 1st of September 2020. Parties do not dispute the existence of the said order.

17. Therefore, I find that there existed a lawful order.

## *ii) potential contemnor's knowledge of the order;*

- 18. The general principle is that a person cannot be held in contempt without knowledge of the court order, a party who knows of an order regardless of whether it is irregular or regular cannot be permitted to disobey the said order. It is not for that party to choose whether or not to comply with such an order, the order must be complied with in totality. - 19. It is the submissions of counsel for the applicants that the respondents were parties to Misc. App No.770 of 2020 where the said temporary injunction order arises from further the respondents were the applicants in the said application, that means that the respondents were aware of the existence of the said order.

- 20. The reading of the temporary injunction order arising from Misc. App No.770 of 2020 indicates that Juliet Sekabanja (suing through her attorneys Joel Sekabanja and Miriam Namutebi) as the applicants vs Kagimu Samuel and Kiwanuka John as the respondents. The order indicates how Joel Sekabanja and Miriam Namutebi had the principal agent relationship with Juliet Sekabanja and these are the parties that are the respondents in the instant application. - 21. There is no way an agent would fail to inform his principle about the said order, this is a fact that can be inferred from the facts of this case. - 22. Therefore, it's to my finding that the respondents had knowledge of the said temporary injunction order vide Misc. Application No.770 of 2020. - *iii) Potential contemnor's failure to comply, that is disobedience of the order.* - 23. I will draw reference to the affidavit in support of the application deponed by Kiwanuka John the 2nd applicant under paragraph 7 where he avers that in 2022 the respondents attacked the applicants and demolished the house, exhumed remains of their

dead relatives and evicted us the applicants from the land and the applicants attached photographs marked "C" and "D".

- 24. Further the applicant alleges that such acts by the respondents amounted to disobedience of the said temporary injunction order. - 25. In reply the respondents submit that the photographs attached by the applicant do not show any remains of exhumed bodies and annexure D is a picture of a broken house but there is no evidence adduced to show that it was the applicants house, whether it is on the suit land or not and the date when the said photograph was taken. - 26. Counsel further submitted that the affidavit in support by the 1st applicant raises contradictions compared to the affidavit in reply deponed by him in Misc. Application No.770 of 2020 where he was the 1st respondent by then where he stated that it was in the month of May 2020 during the lock down period when the 1st applicant(1st respondent by then) and other family members were tending to the grave yard that a group of unknown persons claiming that they were acting for owners of the land attacked us and chased them away from the land and that the said persons

started destroying and cutting down crops, banana plantations and cassava plantations, mango trees that were on the suit land.

- 27. Counsel for the respondents submits that it is clear that at the time the temporary injunction was determined the actions the applicants claim to amount to contempt had already taken place. - 28. I will draw reference to the photographs attached onto this application, the applicants allege that the said photographs depict the respondent's disobedience of the temporary injunction order. - 29. The photographs indicate a broken house and a grave yard, the said photographs do not indicate when they were taken and where were they taken from. - 30. The photographs do not show any remains exhumed from the graves but they rather show a broken house and graves with banana plantations on the ground, it is really unclear whether the said items in the photographs were on the suit land and whether the photographs were taken after court had granted the said temporary injunction order. - 31. It would be a clear case if the photographs had dates when they were taken and the location where they were taken from. This is because for the said acts to amount to disobedience of the court

order, they must have occurred after the 1st of September 2020 when the said order was issued by court. In the instant case its unclear when the said acts of disobedience occurred.

- 32. All the above take me to the finding that it's not certain whether indeed there were acts of disobedience of the temporary injunction order by the respondents. - 33. I agree to the fact that there existed a lawful order which all parties to this application had knowledge of but there is no clear evidence to prove that the said order was disobeyed. - 34. Before I take leave of this matter, I put it to the parties to this application that the status quo of the suit land be maintained pending the determination of the main suit. - 35. In the result, the applicants have not made a case for contempt of a court order against the respondents, the application hereby fails and the same stands dismissed by this honorable court with no orders as to costs.

#### **I SO ORDER.**

# **NALUZZE AISHA BATALA**

## **JUDGE**

#### **27 th/05/2024**