Kizito v Kibuuka & 2 Others (Miscellaneous Application 48 of 2022) [2023] UGHC 338 (18 April 2023)

# **THE REPUBLIC OF UGANDA**

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

### **MISCELLANEOUS APPLICATION NO. 48 OF 2022**

# **(ARISING FROM CIVIL SUIT NO. 02 OF 2017)**

**KIZITO FRANK WALUBI…………………………………….………. APPLICANT**

## **VERSUS**

**1. KIBUUKA JOSEPH 2. YIGA SIMON 3. KIBUUKA ALEX …………………………………..….……….. RESPONDENTS**

### **RULING**

*Hon. Lady Justice Victoria N. N. Katamba*

# **BACKGROUND**

This application was brought by the Applicant for inter alia orders that the Respondents be arrested and committed to a civil prison for contempt of court order arises from Civil Suit No. 02 of 2017. In the said suit, the 1st Respondent herein, is the 1st Plaintiff. The said suit seeks above other remedies that the letters of administration granted to the 1st, 2nd and 3rd Defendants in favour of the estate of the late Yoanna Batista Walubi be revoked.

This honourable court whilst hearing the said suit on the 15th February, 2022, in the presence of the parties ordered that; a) a survey takes place on Thursday 24th February, 2022, b) that the DPC Masaka provide the necessary security for the exercise and c) that Kibuuka Joseph conducts searches on land comprised in Buddu Block 508 Plots 40 and 56 land at Kakunyu. It is now the Applicant's case that the 3 Respondents herein are in contempt of the court order issued on 15th February, 2022 and signed on 21st February, 2022.

The 1st Respondent denied being in contempt of court in his affidavit in reply and set up an alibi, that he was in Kasango far away from Kikunyu where the survey was scheduled to be conducted. He thus stated that he could not have blocked the exercise. As regards the search reports, the 1st Respondent/1st Plaintiff claimed that he lacked authority from registered owners to conduct a


search on their lands and that he served the order on the Registrar of titles to furnish with the searches and he was yet to give him a response.

#### Representation

The Applicant was represented by **M/s Mbeeta Kamya & Co. Advocates**.

The Respondent was represented by **M/s Joel Cox Advocates**

### **ISSUES:**

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

### **APPLICANT'S SUBMISSIONS**

The Applicant submitted that S.98 of the Civil Procedure Act empowers this court to make such necessary orders for the ends of Justice or to prevent the abuse of court process.

The Applicant submitted that the 2nd and 3rd Respondents were at the scene of survey as per paragraphs 3,4,6,8 and 11 of the 2nd Respondent's affidavit in reply and as per the police report attached on the Applicant's affidavit in reply.

The Applicant also submitted that the 1st Respondent admitted to objecting to the survey in writing and a copy of his objection was attached as annexure B to the Applicant's affidavit in support.

The Applicant relied on the authority of Megha Industries (U) Ltd vs. Conform Uganda HCMA 21 of 2014 in which it was held that imprisonment for civil contempt is properly ordered where the defendant refuses to do an affirmative act required by the provisions of an Order.

In conclusion the Applicant prayed that this court be pleased to allow the Application for purposes of preserving the sanctity of court and administration of Justice.

### **RESPONDENTS SUBMISSIONS**

### **On issue 1**

The Respondents associated themselves with the submissions of the Applicant on the law on contempt of court but disassociated themselves with the allegation that they are in contempt of a court.


It was submitted for the 2nd and 3rd Respondent that they were not in court when the order was issued so they could not have been aware of it.

It was also submitted for the 1st Respondent that he was in Kasango trying to get police officers to provide security for the survey and that accordingly, he could not have blocked the process.

As for the search reports required of him under the order, the 1st Respondent submitted that he encountered difficulty because he failed to get authorization from the registered proprietors and that he served the Registrar of titles who is yet to respondent to him.

On issue 2: Remedies

The Respondents submitted that the Applicant was not entitled to the remedies sought and prayed that the Application be dismissed with costs.

### **DETERMINATION BY COURT**.

Issue: Whether the Respondents committed contempt of court?

The Applicant submitted that the Respondents blocked the survey of land comprised in Buddu Block 508 Plots 40 and 56 at Kakunyu and that for the above reason they are in contempt of court. The Applicant further stated that the 1st Respondent was ordered to furnish this court with search reports on the two plots of land which he has omitted to do.

In *Stanbic Bank (U) Ltd & Jacobsen Power Plant Ltd Versus The Commissioner General Uganda Revenue Authority M. A No. 42/2020, It was held that the position of the law is that for contempt of court to be found, there must be existence of a lawful order, the potential contemnor's knowledge of the order and the potential contemnor's failure to comply (disobedience of the order).*

a) Existence of a court order.

The Applicant has attached a copy of this court's order that required survey of the land conducting of searches on the suit land by the 1st Respondent.

b) Knowledge of the order;


The 1st Respondent was in court on the day the order was made so he had knowledge of it. On the other hand, there is no proof that the order was served on the 2nd and 3rd Respondents as to impute knowledge of the order on them.

c) Disobedience of the order;

Civil contempt of court is a very serious allegation and is even a criminal case which should be proved by the person claiming that it has been committed. Upon examining the evidence that has been adduced to prove contempt against the Respondents in this case, this court finds positive evidence of contempt of court against the 1st Respondent for failing and or refusing to conduct the searches on the suit land.

I find the 1st Respondent's excuse of not carrying out the searches for lack of authority from the registered proprietors an excuse because registers of lands are public documents upon which a search may be conducted by any individual.

The 1st Respondent has also not furnished this court with proof of service of the court order on the Registrar of titles.

The 1st Respondent set up an alibi that he was in Kasango trying to get security for the survey exercise at Kakunyu. This alibi was destroyed by his very admission of blocking the survey exercise as per his written objection attached to the Applicant's affidavit in support of the Application marked "B" and admitted in his affidavit in reply in paragraph 12. The 1st Respondent's objection effectively placed him at the scene of the survey being the suit land at Kikunyu.

I would also find the 2nd and 3rd Respondents to be in contempt of court but one of the elements of contempt, being that one should have had knowledge of the court order has not been proved.

#### Remedies to the parties?

Whereas the 1 st Respondent criticizes the manner in which the order in context was issued, he has never appealed against it and he also concedes in his submissions that he understood the court order as arising from the court's own motion to seek information useful to its adjudication of Civil Suit No 02 of 2017. The 1st Respondent being a joint Plaintiff in the main suit, he should not be giving excuses for not undertaking the steps required of him to proceed with the suit. Moreover,

the same order which is the subject of these proceedings still noted in its first paragraph and I quote*; "The survey that was prevented by Mr. Kibuuka the 1st Plaintiff shall take place on Thursday 24th February, 2022"*

The said Mr. Kibuuka is the same 1st Respondent, he has never challenged the above order that made a negative connotation of him as a party stifling the proceedings in this backlog case.

The Applicant prayed that the 1st Respondent be committed to civil prison for contempt of the court order. I find that this will further delay the hearing of this backlog case especially if the 1 st Respondent/1st Plaintiff who seems not to be interested in hearing his case.

In light of the positive evidence of contempt of court by the 1st Respondent that is intended to forestall the hearing of the main suit, the 1st Plaintiff/1st Respondent is hereby struck off Civil Suit No. 02 of 2017 as a claimant. His case is hereby dismissed with costs to the Applicant because a party who is in contempt of court cannot be heard in any other related matter. *See Housing Finance Bank & Anor vs. Edward Musisi M. A No. 158/2010.*

The 1st Respondent is also sent to civil prison for three months.

I so order.

Orders;

1. The Application partly succeeds with costs against the 1st Respondent.

Dated this 18th day of April, 2023


### **HON. LADY JUSTICE VICTORIA NAKINTU NKWANGA KATAMBA**