Kakacumbira & Another v Mutereza (Miscellaneous Appeal 16 of 2022) [2023] UGHC 280 (11 July 2023)

#### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT-05-LD-ML-0016-2022

(Arising from HCT-05-LD-MA-0074-2022). (Arising from HCT-05-LD-MA-0187-2021) (All arising from HCT-05-LD-CS-0036-2021)

#### 1. MARGRET KAKACUMBIRA

#### 2. RWEMBAGA BOSS ROBERT :::::::::::::::::::: APPELLANTS VERSUS

## SCOVIA MUTEREZA ::::::::::::::::::::::::::::::::::::

# **BEFORE: HON LADY JUSTICE JOYCE KAVUMA**

#### **RULING**

#### **Background**

This is an appeal from the decision and orders of the learned $\Box$ Deputy Registrar of this court in HCT-05-LD-MA-0074-2022 in which she found the two Appellants in contempt of court. The application was made under the provisions of Order 50 rule 8, Order 52 rule 1 and 3of The Civil Procedure Rules and 98 of The Civil Procedure Act.

It was supported by two affidavits sworn by both Appellants in which they depose to the same facts. I will briefly consider the averments of the 1<sup>st</sup> Appellant wherein she depones that she was sued vide **MA. 74** of 2022 before this court for orders that she be found in contempt of court orders. That she filed a reply denying all the allegations in the application. That the learned Deputy Registrar of this court issued a $\mathbb{R}$ ruling in the said application on 28<sup>th</sup> October 2022 wherein she found that she and the $2^{\scriptscriptstyle{\text{nd}}}$ Appellants were in contempt of court orders. That

Page 1 of 12

the learned Deputy Registrar of this court erred in law when she failed to address her mind on the law governing contempt of court thereby reaching a wrong conclusion. That the learned Deputy Registrar misdirected herself and erred in law and in fact when she held that she had taken over possession of the suit land by evicting the Respondent and her head of cattle without credible evidence to prove it. That the learned Deputy Registrar failed to properly evaluate and analyse the evidence on court record and as a result erroneously held that the Appellants were in contempt of court orders.

In her reply, the Respondent depones that the evidence in MA. 74 of 2022 proved to court that the agents of the Appellants were the ones that fenced off her banana plantation, farm and evicted her. That the learned Deputy Registrar correctly applied the law and facts to the case and found the Appellants in contempt of court orders. That the instant application was vexatious, frivolous, misconceived, an abuse of court process, incompetent and should be dismissed.

### Representation.

The Appellants were represented by M/s Tumwebaze Emmanuel $[2]$ Advocates & Solicitors while the Respondent was represented by M/s Kaganzi & Co. Advocates. both Counsel filed submissions in the matter which I have perused before coming to this decision.

## The duty of this court.

It is the duty of this court as a first appellate court to re-hear the $[3]$ case by subjecting the evidence presented to the trial court to a fresh and exhaustive scrutiny and re-appraisal before coming to its own conclusion (see Father Nanensio Begumisa and three others vs Eric Tiberaga SCCA 17of 2000, [2004] KALR 236). In a case of conflicting evidence, the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions (see Lovinsa Nankya vs Nsibambi [1980] HCB 81).

In its appellate jurisdiction, this court may interfere with a finding of fact if the trial court is shown to have overlooked any material feature in the evidence of a witness or if the balance of probabilities as to the credibility of the witness is inclined against the opinion of the trial court. In particular, this court is not bound necessarily to follow the trial magistrate's findings of fact if it appears either that he or she has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on demeanour of a witness is inconsistent with the evidence in the case generally. (See Nyero vs Olweny and Ors (Civil Appeal 50 of 2018) and Kaggwa vs Ampire (Civil Appeal 126 of 2019) per Mubiru J.)

I shall be guided by the above legal principles in determining the instant appeal by first and foremost re-evaluating the evidence on the court record in HCT-05-LD-MA-0074-2022 vis-à-vis the law on contempt of court. $\mathscr{K}$

Analysis and decision.

Any course of conduct which abuses and makes a mockery of $[4]$ 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. In contempt of court, the court is not concerned with defending its dignity but it is concerned with safeguarding the supremacy of law which has been challenged by the contemnor. (See Re Ivan Samuel Ssebadduka, Contempt proceedings arising from Presidential Election Petition No. 1 of 202).

The purpose of such proceedings is to give courts the power to effectively protect the rights of the public by ensuring that the administration of justice shall not be obstructed or prevented. (See Morris vs Crown Office [1970] 1 ALLER 1079 per Salmon LJ).

The Halsburys Laws of England, Contempt of Court (Volume 9 (1) Reissue)) 1 classifies contempt into two. It states as follows:

> "Contempt of Court may be classified as either (1) Criminal Contempt, consisting of words or acts which impede or interfere with the administration of justice, or which create a substantial risk that the course of justice will be seriously impeded or prejudiced; or (2) contempt in procedure, otherwise known as civil contempt, consisting of disobedience to the judgment, orders or other process of the Court and involving a private injury."

> > Page 4 of 12

Civil contempt occurs outside the court's close realm. It usually takes the form of disregarding court orders and judgments. This means that civil contempt must be brought to the court's notice by laying before it evidence of the alleged contemporaneous conduct. (See Kizito vs Nsubuga and 6 Others Supreme Court Civil Application No 25 of $2021$ ).

From the facts of HCT-05-LD-MA-0074-2022 it is safe to conclude that the application fell within the later form of contempt, that is civil contempt of court orders since it involved conduct that was alleged to have occurred outside the court.

This court Nsangiranabo vs. Col. Kaka Bagyenda and Anor (Civil $[5]$ Miscellaneous Application 671 of 2019 per Ssekaana J) made a restatement of the principles that a party claiming contempt of court ought to establish in order to succeed on such an application. These

- The existence of a lawful order. - 2. Potential contemnor's knowledge of the order. - 3. Potential contemnor's failure to comply, that is, disobedience

(See also Sitenda Sebalu vs The Secretary General of the East African Community, Ref. No. 8 of 2012).

$\cancel{\mathcal{H}}$

In Kizito vs Nsubuga and 6 Others(supra), the Supreme Court, while quoting with authority the Supreme Court of Canada decision in the

case of Carey vs Laikan, 2015 SCC 17, laid out the following three elements to buttress the above principles;

The order alleged to have been breached must state clearly $\mathbf{1}$ and unequivocally what should and should not be done.

The party alleged to have breached the order must have 2. had actual knowledge of it.

3. The party allegedly in breach must have intentionally done the act the order prohibits or intentionally failed to do the act that the order compels.

#### Existence of a lawful order. $3.1.$

Where there is a valid court order, it must be obeyed in its **F51** totality and a person who chooses to disobey it without reason risks being held in contempt of court. (See LC Chuck and Cremier [1986] ER 885). The order must state clearly and unequivocally what should and should not be done.

According to the court record in HCT-05-LD-MA-0074-2022 $[6]$ before the learned Deputy Registrar of this court, it was the Respondent's prayer that the Appellants herein be found in contempt of the court orders issued in HCT-05-LD-MA-0187-2021. HCT-05-LD-MA-0187-2021 was an application for an interim order to restrain the Appellants from interfering with or carrying out any activity on the suit land until the main application vide HCT-05-LD-MA-0188-2021 was disposed of. According to the record of HCT-05-LD-MA-0187-2021, the application came up for final disposal and ruling on 28th September 2021. The ruling was read in presence of counsel for both parties and in the presence of both parties. The ruling inter alia forbade the Respondents or their agents from evicting the Applicant until the determination of the main suit. A further order for a temporary injunction was issued by this court in HCT-05-LD-MA-0188-2021 on 22<sup>nd</sup> February 2022. The order still forbade the Respondents or their agents from evicting the Applicant until the determination of the main suit.

It is therefore is therefore my finding that there existed a lawful court order.

The first limb of this application was therefore satisfied.

3.2. Potential contemnor's knowledge of the order.

The general principle is that a person cannot be held in [7] contempt without knowledge of the order. A party who knows of an order regardless of whether, in view of that party, the order is null or valid, regular or irregular cannot be permitted to disobey it by reason of what that party regards the order to be. It is not for that party to choose whether or not to comply with such order. The order must be complied with. (See Ssekaana J in Nsangiranabo vs. Col. Kaka Bagyenda and Anor (supra)). The knowledge of the potential contemnor must be actual as opposed to constructive knowledge.

$\mathbb{Z}$

The Appellants herein both alleged in their affidavits in support of the instant appeal that there was no court order for them to violate and neither were they served with the court order.

The implication I draw from the above deposition is that the Appellants claim not to have knowledge of the court order in HCT-**05-LD-MA-0187-2021.** As I have already pointed out, the application came up for final disposal and ruling on 28th September 2021 and the ruling was read in presence of counsel for both parties and in the presence of both parties.

It is therefore unfathomable that the Appellants do not have knowledge of the ruling of the court since they were in court that day as the extracted court order indicates.

I find the second limb satisfied.

3.3. Potential contemnor's failure to comply, that is, disobedience of the order.

The general rule is that a potential contemnor is held in **[8]** contempt for a wilful refusal to comply to a court order. The order must state clearly and unequivocally what should and should not be done.

Wilful refusal to comply to a court order occurs where the acts of the alleged contemnor are not casual, accidental or unintentional, and constitute contumacious disregard of the court order. (See Steiner Products Ltd vs Willy Steiner Ltd [1966] 2 ALLER 387). However, contempt may also be committed in the absence of wilful disobedience on the part of the contemnor. (See for example in

## Stancomb vs Trowbridge UDC [1910] 2 Ch. 190 and Knight vs Clinton [1971] Ch. 700).

There is need for proof that the potential contemnor has by deliberate conduct disobeyed a lawful court order. Proceedings of contempt of court are quasi-criminal in nature. In Kizito vs Nsubuga and 6 Others(supra), the Supreme Court placed the standard of proof as same as in a criminal proceeding as one beyond reasonable doubt. (See also Heatons Transport (St. Helens) Ltd vs Transport and General Workers' Union [1973] AC 15 at 109).

The Applicant does not need to prove that the alleged contemnor intended to bring court into disrepute. Where the breach is unintentional and accidental then the court may exercise its discretion to impose no penalty.

It therefore follows that mere allegation of violation based on surrounding circumstances and observations made by an Applicant will not suffice. The evidence adduced should prove beyond reasonable doubt that the potential contemnor committed the alleged acts.

According to HCT-05-LD-MA-0074-2022, the Respondent deposed in her affidavit in support of that application that on 16<sup>th</sup> March 2022, in fragrant, open and wanton disregard of the court order issued by this court, three men working on orders of the Appellants came onto the Respondent's land armed with sticks, pangas and ebihosho. That the $2^{\rm nd}$ Appellant was seen with the three men the same day walking on the suit land. That the $2^{\rm nd}$ Appellant moved to the $1^{\rm st}$ Appellant's home but left the three men on the suit land. That the said men dug Page 9 of 12

holes and planted poles along the boundary line of the Respondent's land and they threatened to return at night to demolish the Respondent's home.

In his response, the $2<sup>nd</sup>$ Appellant deposed that he never sent anyone to the suit land to carry out any activity on his behalf. That he had never ordered the Respondent out of the suit land or attempted to eject her. That the pictures attached to the application did not show him on the land.

In her response, the 2<sup>nd</sup> Appellant deposed in similar terms like the 2<sup>nd</sup> Appellant. I shall not repeat the averments.

[9] Before handing down the remedy of contempt of court, the court should bear in mind that this remedy should only be used as a last resort remedy and court should hand it down with great restraint. It has been held that contempt cannot be reduced to a mere means of enforcing judgments. (See Carey vs Laiken (2015 SCC 17) (Canada Supreme Court).

The maxim of proof beyond reasonable doubt is a rule of caution laid down by courts of law in respect of assessing the evidence in cases of this nature. The exercise of power to convict or find a person liable for contempt is summary in nature based on the alleged contemnor's wilful disobedience of a court order. It has been held to only be exercisable on admitted and undisputed facts. (See for example in the Indian High Court Decision of Pradeep Kumar Srivastava and 2 Others vs Vishal Singh and, Chief Executive Officer 19<sup>th</sup> June 2020).

Page 10 of 12

The court must not travel beyond the four corners of the order which is alleged to have been flouted or enter into questions that have not been dealt with or decided in the judgment or the order violation of which is alleged. (See Pradeep Kumar (supra)).

[10] The order of the court on the record of HCT-05-LD-MA-0187-2021 was worded as follows;

> "An interim order doth issue against the Respondents or their agents from evicting her until determination of the main suit."

> > $\mathbb{K}$

I have examined the evidence that was submitted by the Respondent before the learned trial Deputy Registrar, first and foremost, it creates doubt as to whether it was the Appellants that indeed wilfully disobeyed the above order. The Appellants deny stepping on the suit land and being in the annexed pictures. The evidence points to third parties and there is no scintilla of proof that they acted as the agents' or authority of the Appellants beyond the averments in the affidavit.

Secondly, reading the order strictly within its four corners, it forbade the Appellants from "evicting" the Respondent herein. The evidence in HCT-05-LD-MA-0074-2022 does not show that the Respondent was evicted. All that the evidence shows was that the Respondent's husband who was grazing on the land was on one occasion chased away from the land by third parties the Appellants allege not to know and that poles were raised on the boundary of the land. These according to this court are not acts of eviction.

Page 11 of 12

## I find the third limb not proved to the satisfaction of court.

In view of the preponderance of probabilities in the facts before $\Gamma(1)$ me, it is my finding that contempt was not proved beyond reasonable doubt.

This appeal therefore succeeds, the orders of the learned Deputy Registrar are set aside. The main suit shall be heard on its merits. This appeal is allowed. The costs of the appeal shall abide the outcome of the main suit.

I so order.

$114R$ <br>day of $14M$ Dated, delivered and signed at Mbarara this ..... 2023. Joyce Kavuma Judge