Kemirembe v National Housing and Construction Company Limited (Civil Application 638 of 2022) [2023] UGCA 278 (23 October 2023)

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT I(AMPALA

## CML APPLICATION No. 638 OF 2o22

## (Arising from Civil Appeal No 83 of 2O1O)

s KEMIREMBE SARAH ::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT

## VERSUS

## NATIONAL HOUSING AND CONSTRUCTION

COMPANY LIMITED : : RESPONDENT

# <sup>10</sup> RULING OF CHRISTOPHER GASHIRABAKE . JA (srNGLE JUSTTCE)

## INTRODUCTION

15 This is an Application brought under Rules 2 (21,43(1), (2) of the Judicature (Court of Appeal Rules) Directions SI 13-10 (hereinafter referred to as the "Rules of this Court").

The Application seeks Orders that: -

- a) The Respondent be cited and sanctioned for contempt of court by refusing to comply \ rith lawful orders of this Honourable - court made in civil Appeal No.83 of 2010 - b) The Respondent pays to the Applicant special damages as follows;

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- c) UGX 1,060,000,000/= (Uganda Shillings One Billion, sixty million) being the estimated cumulative annual rent of the finished residential houses on Block 22O Plots 526 and 1381 from January 2008 to April 2021. - d) UGX 404,000,OOO l=(Uganda Shillings four Hundred four million) being the estimated cumulative annual rent of the unfinished residential houses on Block 22O Plots 526 and 1381 from January 2008 to April 2022.

The Application is supported by the affidavit of Kemirembe Sarah which briefly state;

1) That this court issued an Order in Civil Appeal No.83 of 2010 directing the Respondent to re-open an access road that was previously being used by the Applicant to access her property comprised in Block 22O Plots 526 and 1381,(the suit Property) or provide an alternative to enable the Applicant reach the public way/road.

2l That the Respondent is aware of the Order but has acted in violation of it. That the Respondent's conduct is clear disobedience of the authority of the court and makes a mockery of the judicial process.

- 3) That the Respondent is duty bound to comply with the said Order but has railed to do so. - 4) That the suit property is comprised of six fully developed commercial houses and other commercial apartments under construction. The Applicant has lost revenue from the Suit


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Property for over 13 years due to the Respondent's violation of the court Order.

- 5) It is in the interest of justice that the Respondent is penahzed for ignoring and disobeying lawful Orders of the Courts. - 6) The orders are necessarJi for purposes of ensuring that the Respondent re-opens an access road which its agents and officers blocked during the construction of its housing estate or in the alternative to provide an alternative road to enable the Applicant access the public road. - 7) It is just and equitable that this Application be granted and the orders prayed for be issued. 10

## BRIEF FACTUAL BACKGROUND

The Applicant is the registered proprietor of land comprised of six commercial houses and other commercial apartments under construction. Around 2008 the Respondent constructed a housing estate known as a sunset Apartments (the apartments) adjacent to the suit property. In the process of construction, the Respondent blocked the only access road to the suit property. In 2OO8, the Applicant instituted Misc. Cause 24O of 2OO8 against the Respondent at the Chief Magistrate Court Nakawa seeking Orders that the Respondent re-opens an access road it blocked during the construction of the Apartments or provide an alternative motor access to the suit property. The court granted the Application and ordered the Respondent to re-open the access road that was previously being used to access the suit property or to provide an 15 20 2s

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alternative access road. The Respondent being dissatisfied with the decision of the trial Magistrate filed an Appeal in the High court contending that the Applicant's suit was brought under the wrong law and procedure. The High court found in favour of the Respondent and set aside the trial Magistrate's Order. The Applicant was dissatisfied and filed an Appeal in this court. This court set aside the decision of the High court and ordered the Respondent to re-open the access road to the suit property or provide an alternative motor access to enable the Applicant reach the public way/road. The Application avers that the Respondent is aware of the court Order but continues to violate the order.

## REPRESIENTATION

The Applicant was represented by Mr. Yesse Mugenyi while Mr. Kenneth Agaba appeared for the Respondent Bank.

#### APPLICANT'S SUBMISSIONS 15

Counsel for the Applicant submitted that the civil contempt consists of the intentional doing of an act which is in fact prohibited by the order. He submitted that there are three elements that must be proved before a finding of civil contempt can be made namely;

- a. Existence of a lawful order that is clear and unambiguous - b. Party alleged to have breached the order must have had actual knowledge of the order.


- c. Party alleged to have breached the order must have intestinally done the act that the order prohibits and intentionally failed to do the act that the order compels. - 5 In a bid to satis\$r the above conditions, Counsel for the Applicant submitted that this court passed an order reinstating the Orders of the chief magistrate court to re-open the access road that was previously used by the Applicants to provide an alternative access road. He argued that the order was made in the presence of both parties. He prayed that we find that this element had been sufficiently proved. 10

He further submitted that the Respondent was made aware of the reinstatement of the order of the chief magistrate through a letter dated 9tt May 2Ol7 . He argued that the Respondent responded to this letter dated 6th May 2019.

He also submitted that even though the Respondent wrote a letter to NEMA for the creation of an alternative access road in 2019, no efforts have been made to ensure the compliance of the same. 15

Counsel for the Applicant prayed for the following remedies a fine of Ug Shs 200,000 ,OOO l=. The Applicant also prayed for special damages of Ug Shs 1,060,000,OOOl= being accumulative rent from January 2OO8 to April 2022 and Ug Shs 4O4,O00,O00/= being the estimated accumulative annua-l rent of the unfinished residential houses from January 2OO8 to April 2O22. He also prayed for general damages of Ug Shs 3OO,0OO,00O f = for the inconvenience suffered by 20


the Applicant and the diminution of the value of the Applicant's property.

## RESPONDENT'S SUBMISSIONS

5 Counsel for the Respondent submitted that the inherent powers of this court in Rule 2(21 of the Judicature (Court of Appeal Rules) SI 13-10 under which the Application is brought can only be invoked where the court is seized with an Appeal. He argued that where there is no Appeal there can be no question of invoking its inherent powers as it has no jurisdiction.

- He submitted that the Application was concerned with the execution of the orders of the Chief Magistrates' Court of Nakawa. He submitted that those orders were logically concluded in a consent judgment. He argued that without there being an Appeal from or setting aside of the consent order the Applicant has no Jurisdiction before this court. 10 - He argued that the Jurisdiction was of this court was exhausted when it rendered its judgment on 20th March 2014. 15

It was submitted by counsel for the Respondent that the Applicant had never extracted a decree out of the Judgment and thus there was no decree of this court to enforce. He argued that it was only decrees and orders which were executable. He relied on the case of Mugenyi and Company Advocates v National Insurance Corporation, Civil Appeal 13/t984 [1992- 1993] HCB82.

Counsel for the Respondent also submitted that it is well settled that all questions of contempt of court order can only be tried by the court


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that passed the orders in question. He submitted that the rationale was that every court is responsible for enforcing its own court orders. He thus argued that the appropriate court was the Chief Magistrates. court of Nakawa not the court of Appeal. He referred us to the case

5 of Odongo Geoffrey & ors v Atoke Francis CACA No. 127 of 2015.

He further submitted that the Applicant was stopped from filing the present Application by virtue of the terms and text of the Consent Order in High Court EMA No.24L of 2017. For clarity I will reproduce it here. It reads;

"in the euent of default of payment o/cos/s or anA other issued orders issued in the Miscellaneous cause No. 240 of 20o8,the Applicant shall be at libertg to institute fresh exeantion proceedings at the Respondent's cosfs" 10

Counsel for the Respondent then submitted on the merit of the case.

He argued that the Respondent was not in contempt of any court orders at all and that the remedies that the Applicant seeks are not available to her in law. 15

He submitted that the parties entered into a consent order in the Execution Bailiffs Division of the High Court. He submitted that following that Consent Order, the Respondent paid the Applicant the entire judgment debt and costs of the suit.

He further submitted that the Respondent continues to make ongoing efforts to provide the Applicant with an alternative route. He submitted that the only reason the Respondent has not succeeded in creating the alternative access route was because it had not yet received the requisite autt:or:rzation from the National Environment Authority (NEMA).

Counsel for the Respondent submitted that to find and hold a person in contempt, it is essential that he lshe must have intentionally done the act prohibited or intentionally failed to do the act that the order compels. He relied on the case of Sitenda Sebalu v The Secretary General of the East African Community, Ref No. O8 of 2OL2.

He therefore argued that the Respondent had not intentionally lailed to obey the orders. He submitted that the Respondent has made a bonafide effort to comply with and continue to do so. 10

In regard to the remedies, counsel for the Respondent submitted that the Applicant was not entitled to seek or receive an order committing the CEO of the Respondent to civil prison. He argued that the Applicant did not name the CEO as a party to this Application.

With regard to Special Damages, Mesne Profits and a fine counsel for the Respondent submitted that they must be pleaded, particularized and strictly proved.

He further submitted that special damages and mesne profits must be awarded by court with evidence supporting it. He submitted that in this case there was no cross examination because this was an Application.


He further submitted that the valuation Report of East African Consulting Surveyors and Valuer's that was attached is speculative and biased as it was commissioned and paid for by the Applicant.

### COURT'S FINDINGS

5 Preliminary point of law.

Counsel for the Respondent raised a preliminary point of law that this court had no jurisdiction to entertain this Application. He argued that all questions relating to the execution of a decree are supposed to be entertained by the court executing the decree. The Applicant did not address this preliminary point of law.

Section 34 of the Civil Procedure Act provides;

"All queslions aising betueen the parties to the suit in uhich the decree LUas passed or their representatiues, and relating to the execution, discharge or satisfaction of the decree shall be determined by the court exeanting the decree and not by a separate suit."

The position is clear in the judgment of Tsekoko JSC, as he then was, in Francis Micah v Nuwa Walakira, SCCA No.24 of 1994 in the following observation;

20 "In my opinion section 35(2) indicates hou the court can exercise its discretion when carrying out inuestigations; In my uieta, the procedure under section 35 definitely saues time and expenses; a partg does not need to open a fresh suit with all attendant consequences for purposes of enforcing or querying a manner of execution. Witnesses to be called for purposes of explaining points related to execution proceedings"

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The learned Justice in his concluding remarks on this point said; "The executing court finally disposes of the question by granting appropriate relief and not by asking to file a separate suit".

- 5 Clearly, the contentious issue in this case was whether a party querying an execution could file a fresh suit or they should use the sarne suit. The court found that it had to file under the same suit because it saves time. Therefore I find that the Applicant Iiled correct document. - Furthermore counsel for the Respondent submitted that the Applicant ought to have filed the Application in the chief magistrates court that gave the order and a not in this court. I find that even though this court was reinstating the orders of the Magistrates court it made orders as well and thus the Applicant was right to bring the Application to this court. I therefore dismiss the preliminary objections. 10 15

I will now resolve the merit of the case.

### THE PRINCIPLES

Blackb Law Dlctlono,ry 6th Edttton pg. 379 defines contempt of court as; " artA act which is calculated to embarrass, hinder, or obstruct court in administration of justice ,or uthich is calcttlated to lessen its autltoritg or its dignity. Committed by a person who does any act in willful contrauention of its authoitg or dignitU ,or tending to impede or frustrate the administration of justice ,or by one taho ,being under court's authoritg as o partA to a proceeding therein, willfully


disobegs ifs lauful orders or fails to comply utith an undertaking uthich he kns giuen".

Contempt of court is conduct that defies the authority or dignity of court.

5 Article 128(2), (3) of the Constitution of Uganda provides thus:

- 1. I[o person or authority shall interfere uith courts or judicial officers in the exercise of their judicial functions. - 2. All organs and agencies of the state s?utll accord to the courts such assistance as maA be required to ensure the effectiueness of the cottrts".

In Lukenge Hakeem v Hajati Ajiri Namagembe & others, Court of Appeal Civil Application No. O29O l2O2O this court stated that civil contempt consists of the intentional doing of an act which is in fact prohibited by the order. The court held that 3 elements must be proved before a finding of civil contempt can be made namely;

a. Existence of a lawful order that is clear and unambiguous

- b. Party alleged to have breached the order must have had actual knowledge of the order. - c. Party alleged to have breached the order must have intentionally done the act that the order prohibits and intentionally failed to do the act that the order compels.

It is the position of the law that the standard of proof in contempt proceedings must be higher than proof of probabilities and almost but not exactly beyond reasonable doubt. See Hon. Sltendo- Sebo,lu 11 lPage

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# V Secretary General Of The Eo,st Afrlcan Communltg, Ref J\[o.8 of 2012

The case of Hadkinson a Hadkinson [195212 All ER, at page 569 ,Romer L. J relied on the case of Church v Cremer (1 Coop Temp

5 Cott 342) where it was held that "A party wLto knous of an order uhether null or ualid, regular or irregular, cannot be permitted to disobey it. . . as long as it existed".

## Consideration of the merit of the Application

I have read the Motion in this Application and the Affidavits for and against it. I have also addressed my mind to the submissions of both Counsel and the authorities supplied to Court for which I am grateful. 10

The first issue for determination is whether the failure by the Respondent to implement the order made by this Court in civil Appeal No.83 of 20 1O amounted to contempt of Court.

The Respondent admits that he was fully aware of the judgment since he was a party to the proceedings. 15

It is not disputed that to date, the judgment has not been implemented by the Respondent. The Respondent has shown that it is making effort to provide the Applicant with an alternative route.

He submitted that the only reason it has not succeeded in creating the alternative access route is because it has not yet received the requisite authorization from the National Environment Authority (NEMA). 20


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In order to find and hold a person in contempt, it is essentia-l that he/she must have intentionally done the act the order prohibits or intentionally railed to do the act that the order compels. See Sitenda Sebalu v The Secretary of the East African Community, Ref No 8 of 2OL2.

Save for the one letter that was written to NEMA by the Respondent , no follow up was made. If there was , that evidence has not been availed to this court. I therefore find that the Respondent did not intentionally/purposefully pursue the authorization from NEMA.

In the Kenyan case of Republic v County Chief Finance oflicer ,Finance & Economic Planning Nairobi City County (Ex parte David Mugo Mwangi ) [2018]eklr, the Court made the follo-ing observations; 10

"30. It must hotaeuer be remembered that Court orders are not made

- in uain and are meant to be complied with. If for ana reason a partA has dfficttlty in complging thereuith, the honorable thing to do is fo come back to court and explain the dfficulties faced bg he need tio comply the order. Once a Court order is made in a suit the same is ualid unless set aside on reuieu or on appeal.." 15 - The Respondent intentionally refused to obey the orders of court.. Therefore he is found to be in contempt of the court order. 20

The application succeeds.

#### ORDERS

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(1) The Respondent is directed to provide access to the applicant, by complying with the lower courts order within 90 days of this ruling

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(2) Failure to comply with this order and keeping in contempt with Court orders, the Managing Director and Board Chairman of the respondent do hereby order their arrest until access is provided.

(3)General Damages.

Due to the inordinate delav. aoolicant suffered sisnificant economic and emotional pain. I order general damaqes of Uqanda shillinss lOO,OOO,OOO / :

<sup>10</sup> (4)Special Damaees

I shall refer the matter to the lower court to investisate the praved for special damages . for these are to be strictly proved

(5) The Respondents shall pay costs to the applicant here and in the lower court

1s I so Order.

| Dated | at | Kampala | this | 23-{ | day | of | |-------|------|---------|-------|------|-----|----| | | Octo | | 2023. | | | |

)

CHRISTOPHER GASHIRABAKE

JUSTICE OF APPEAL

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