Komugisha & Another v Asiimwe & Another (Miscellaneous Application 1040 of 2024) [2024] UGHCLD 185 (12 July 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [LAND DIVISION] MISCELLANEOUS APPLICATION NO. 1040 OF 2024 (ARISING FROM MISCELLANEOUS APPLICATION NO. 978 OF**

# **2021)**

*(ARISING FROM CIVIL SUIT NO. 502 OF 2021)*

### **1. KOMUGISHA ANNIE VIVIAN**

**2. MATOVU EVERINE :::::::::::::::::::::::::::::::::::::::: APPLICANTS**

#### **VERSUS**

### **1. ASIIMWE TIMOTHY**

**2. KIMERA TWAHA :::::::::::::::::::::::::::::::::::::::: RESPONDENTS**

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

#### *Introduction:*

- 1. This is an application by notice of motion brought under Sections 64(c) & (e), 98 of the Civil Procedure Act Cap 71, Order 22 rules 29 (1) & 89(1), Order 5 rule 1(2) & (3), Order 6 rules 28 and 30, Order 52 rules 1 & 3 of the Civil Procedure Rules (CPR) for orders that: - i) The Respondents and their workmen or agents be committed to prison for willful disobedience of the

temporary injunction order issued by this Honourable Court on the 7th March 2022 vide Miscellaneous Application No. 987 of 2021 by consent of the parties preserving the status quo of the suit land being land comprised in Kyadondo Block 127 Plots 1376,1377, 1378,1379,1380,1381,1382,1383 and 1384 situate at Kijjudde- Buwagga LC1 Village, Busukuma Sub County, Magigye Wakiso district.

- ii) The 1st Respondent be ordered to pay a fine of UGX 200,000,000 as a sanction for his and those of his workmen, or agents contemptuous, behavior and conduct of forceful entry, unlawful eviction of the Applicants, fencing off, demolishing the brick wall fence on land comprised in Kyadondo Block 127 plot 1382. - iii) The 1st Respondent be ordered to pay general damages of Ug x 300,000,000 to atone for injury, inconvenience and mental anguish, mental stress occasioned to the Applicants because of the 1st Respondent's contemptuous behavior or conduct, criminal conduct of forceful entry, unlawful eviction of the Applicants,

fencing off, demolishing the brick wall fence on land comprised in Kyadondo Block 127 plot 1382.

- iv) The 1st Respondent be ordered to pay exemplary or punitive damages of UGX 200,000,000 because of the 1st Respondent's and those of his workmen or agents contemptuous behavior or conduct and criminal conduct of forceful entry, unlawful eviction of the Applicants, fencing off, demolishing the brick wall fence on land comprised in land Kyadondo Block 127 plot 1382. - v) The 2nd Respondent be ordered to pay a fine of UGX 100,000,000 as a sanction for his contemptuous behavior and conduct of executing transfer forms and transferring the land comprised in Kyadondo Block 127 Plot 1382 from himself to the 1st Respondent. - vi) The 2nd Respondent be ordered to pay general damages of UGX 300,000,000 to atone for injury, inconveniences and mental anguish, mental stress occasioned to the Applicants because of the 2nd Respondent's contemptuous behavior or conduct of transferring land

comprised in Kyadondo Block 127 plot 1382 from himself to the 1st Respondent.

- vii) The 2nd Respondent be ordered to pay exemplary or punitive damages of UGX 200,000,000 because of the 2nd Respondent's contemptuous behavior or conduct of transferring land comprised in Kyadondo Block 127 Plot 1382 from himself to the 1st Respondent. - viii) The 1st Respondent to pay UGX 50,000,000 to the 2nd Applicant as construction expenses to rebuild the wall fence that was demolished by the 1st Respondent and his workmen and agents. - ix) The 1st Respondent be ordered to vacate the suit land immediately and remove the barricade of iron sheets on the said land occupied and utilized by the Applicants to restore the status quo and commissioner Land Registration be ordered to reverse the transfer of land comprised in Kyadondo Block 127 Plot 1382 back into the 2nd Respondent's names. - x) Costs of this Application be provided for.

# *Background;*

- 2. The Applicants together with Kisekka Rashid, Nabukenya Winnie and Okurut Moses filed Civil Suit No. 502 of 2021, applied for a temporary injunction vide MA No.978 of 2021 and on the 7th day of March 2022 parties consented to the grant of a temporary injunction to preserve the status quo of the suit land and restraining both parties from constructing, selling or disposing of the suit land. - 3. That the Respondents willfully, deliberately disobeyed the Temporary injunction order, they sold and transferred ownership of Plot 1382 from the 2nd Respondent to the 1st Respondent. - 4. That the Respondents were served with the order on 9th April, 2024 but to date they have disobeyed, defied and deliberately refused to comply with the said order and the 1st Respondent's actions of forceful entry, unlawful eviction of the Applicants and barricading it with iron sheets and refusing to comply with the order of Court when notified of its existence is a mockery of this Court and the justice system.

# *Applicants' Evidence;*

5. The grounds of the application are contained in the affidavits in support of the application deposed by **KOMUGISHA ANNE**

**VIVIAN, the 1st Applicant and MATOVU EVERINE, the 2nd Applicant** and are briefly that: -

- i) At the time of granting the temporary injunction the status quo was that the plaintiffs were in possession with unfinished houses and wall fences and the same was maintained for a period of two years until 4th April 2024 when the 1st Respondent barricaded the entrance of the 2nd Applicant's land with iron sheets and demolished the wall fence that was enclosing the land. - ii) That I am one of the licensees the 2nd Applicant had permitted to use her land and I put banana plantations and 5,000 burnt clay brick. That my banana plantations were cut down and the 1st Respondent would not let me access the 2nd Applicant's land. - iii) That the 1st Respondent later approached me wanting to buy off the 2nd Applicant's land who declined and informed him that that there is a temporary injunction forbidding and restraining any sale of land as there is a pending case on the suit land. - iv) That in the month of March 2024, the 1st Respondent confronted me and demanded that I vacate the land and

threatened to demolish the 2nd Applicant's wall fence if I refused because he had purchased the said Land from Kimera Twaha, the 2nd Respondent.

- v) That despite having knowledge of the existence of the temporary injunction order, the Respondents blatantly disregarded the authority of the court order and transferred the certificate of title from the names of the 2nd Respondent into the names of the 1st Respondent on 3rd April 2024 after which the 1st Respondent violently evicted and enclosed the 2nd Applicant's portion of land barricading it, demolishing the wall fence and destroying my garden. - vi) That I was informed by my lawyers/advocates which information I verily believe to be true that they had written a letter of notification of the temporary injunction and demand notice to the Respondents demanding them to comply with the Temporary injunction order, vacate the suit portion and restore the status quo on 9th April 2024. - vii) That the 1st Respondent's intentions and his agents or workmen are to deprive the 2nd Applicant of her ownership of the suit land and to frustrate her from pursuing this

case and change the status quo in order to render the main suit nugatory.

viii) That it is in the interest of justice that the Respondent be punished for disobedience of the said temporary injunction, the status quo be restored in order not to render the main suit nugatory.

### *2nd Applicant's affidavit in support*

- i) That I purchased two portions of land on the suit land each measuring 50ft by 100ft from Kagulire Robert and Ssekadde John after which I started using my portions by cultivating food crops and I built a wall fence too. - ii) That I and my Co Applicant applied for a temporary injunction against the 2nd Respondent to restrain him from further conducting any dealings on land in order to preserve the status quo pending the hearing and determination of our suit since we were in possession of the suit land. - iii) That the 2nd Respondent consented to our application for a temporary injunction when it came up for hearing on 7th March 2022, however on 4th April 2024 I was called by my sister the 1st Applicant informing me that my immediate

neighbor the respondent had barricaded the entrance of my land with iron sheets.

- iv) That I contacted the police which attempted to stop them from demolishing my wall and on 6th April 2024, they cut down the 1st Applicant's banana plantations. - v) That despite the Respondents having knowledge of the existence of the temporary injunction order, they blantantly disregarded the authority of the Court Order and transferred the certificate of title from the 2nd Respondent to the 1st Respondent on 3rd April 2024 after which the 1st Respondent forcefully entered my land, enclosed it and demolished my wall fence and destroyed my sister's crops. - vi) That my lawyers wrote a letter of notification of the temporary injunction order and demand notice to the Respondents demanding them to comply with the order, vacate the suit portion and restore the status quo on 09th April 2024. - vii) That the letter was served onto the 1st Respondent electronically via Whatsapp which he acknowledged


receipt of and his lawyers of MOM Advocates replied that the temporary injunction was issued on 5th April 2024.

viii) That the respondents must be punished by ordering them to pay a fine each for disrespecting this Honourable Court's orders.

# *Respondent's evidence;*

6. The application is opposed by both respondents who filed their respective affidavits in reply and briefly states as below;

#### **1 st Respondent's affidavit in reply**

- i) That on 2nd December 2020, I purchased land comprised in Block 127 Plot 1382 measuring approximately 0.048 hectares situate at Buwagga, Wakiso District from Kimera Twaha, the 2nd Respondent at a consideration of Ug shs 20,000,000. - ii) That I transferred the land into my names on 3rd April 2024 with no notice of any Court order and I fenced it with iron sheets as the previous perimeter wall had collapsed due to heavy rains. - iii)That following my actions such as clearing the land which previously had banana plantations and a wall fence, a criminal case (CRB 427 of 2024) was opened against me on 7 April 2024 with charges of malicious damage to property and criminal trespass to land.

- iv) That I presented all documentary evidence including the certificate of title proving my ownership, made a statement at Kasangati police station and since no one mentioned about the temporary injunction, my actions were seen as justified and the criminal case was dismissed. - v) That on 9th April 2024, the divisional police commander, Kasangati forwarded a copy of a letter from LMN Advocates with a temporary injunction order dated 5th April 2024 via WhatsApp and explained its complications hence I halt all activities on the disputed land to comply with the court order. - vi) That upon reviewing the Court order, I noticed that the same was issued on 7 March 2022 vide Miscellaneous Application No. 978 of 2021 but the order itself was dated 5th April 2024. That when my lawyer inquired from Land division, he discovered that the order was issued on 7th March 2022 but only extracted for service on me in April 2024.

- vii) That I was not party to Miscellaneous Application No. 978 of 2021 nor was I ever made aware of proceedings in that Application or the main suit from which it arises, nor the temporary injunction order in that matter until 9 April 2024. - viii) The letter notifying me of the temporary injunction and demand notice dated 5 April 2024 was served on me on 9th April 2024 approximately six days after the land transfer and I have never approached the 1st Applicant with intent to purchase the land as I had already purchased it on 2nd December 2020 from the 2nd Respondent who was the registered proprietor. - ix)That all my actions were made in good faith as the registered proprietor without notice of the Court orders barring them hence this application should be dismissed with costs.

#### **2 nd Respondents evidence**

i) That by the time Civil Suit No. 502 of 2021 was filed, land comprised in Kyadondo Block 127 Plot 1382 situate at Kijjudde Buwagga Wakiso District like many other plots on that land formerly described as Kyadondo Block 127 Plots 41 & 42 situate at Kijjudde Buwagga Wakiso District had been sold off to the 1st Applicant.

- ii) That land formerly described as Kyadondo Block 127 Plots 41 & 42 situate at Kijjudde Buwagga Wakiso District which I subsequently subdivided into several plots including the current suit land comprised in Kyadondo Block 127 Plot 1382 situate at Kijjudde Buwagga Wakiso District had squatters some of who I settled amicably. - iii) That those portions which had no disputes were sold out to third parties and my role after the sale was to surrender transfer instruments and certificates of title and I had no control of the time when the purchasers would transfer their respective titles into their names. - iv) That I highly doubt whether at the time of transferring the said land, there was an order of injunction registered on the register book to prevent transactions of third parties who were not party to my disputes with the applicants. - v) That I have not seen the impugned Court Order as attached to the application which is allegedly breached by myself, I have no knowledge of the Court order neither have I disobeyed the same.

vi) That I have never authorized Kagulire Robert and Ssekadde John to sell my land to third parties/Applicants as claimed in the application, the affidavits in contents of the affidavits in support are false and misleading hence the application should be dismissed with costs.

### *Representation;*

- 7. The Applicants were represented by Nakweria Musa of M/s Nexus solicitors & Advocates whereas the 1st Respondent was represented by Owak Raymond of M/s MMAKS Advocates and the 2nd respondent was represented by John Patrick Muganga of JP Muganga Advocates & Solicitors. - 8. The parties filed written submissions which I have considered during the determination of this Application.

### *Issues for determination;*

9. Both parties raised issues for resolution in their written submissions which I have considered in the determination of this application.

- **i) Whether the Respondents are in contempt of temporary injunction order issued vide Miscellaneous Application No. 978 of 2021.** - **ii) Whether the Applicants are entitled to the remedies sought.**

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

- **i. Whether the Respondents are in contempt of orders of this Honourable Court issued in the judgement in Civil Suit No. 381 of 2011** - 11. Contempt of Court is defined as conduct that defies the authority or dignity of Court as per Justice Kiryabwire in **Uganda Super League v Attorney General Constitutional Application No. 73 of 2013 citing the Black's law Dictionary 7th edition.** - 12. In law, contempt of Court is defined as an act or omission tending to unlawfully and intentionally violate the dignity, repute or authority of a judicial body or interfering in the administration of justice in a matter pending before it. **(See Richard Odoi Adome v Uganda Electricity Generation Company Ltd MA No. 1088 of 2022).**

- 13. **Article 128(2) of the Constitution of the Republic of Uganda** provides that no person or authority shall interfere with the Courts or judicial officers in the exercise of their judicial functions. - 14. The conditions necessary in order to prove contempt of Court were well articulated in the case of **Hon. Sitenda Sebalu v Secretary General of the East African Community Ref No. 8 of 2012** and these include; - *I.* Existence of a lawful order - *II.* Potential contemnors knowledge of the order. - *III.* Potential contemnor's failure to comply i.e. disobedience of the order.

### *I.* **Existence of a lawful order**

15. It is not in dispute that Court granted a temporary injunction order granted on the 7th day of March 2022 before H/W Natukunda Janeva the Deputy Registrar which restrained both parties from further construction, selling or disposing of land comprised in Kyadondo Block 127 Plots 1376 – 1384 land at Kijjudde Buwangga LC1 Village, Mapigye Parish Busukuma County Nansana in Wakiso district.

Therefore, there exists a lawful order.

### *II.* **Potential contemnors' knowledge of the order.**

- 16. The 1st Respondent states under paragraphs 9,10 and 10 of the affidavit in reply that he only got to know about the existence of the order on 9th April 2024 when he was served a demand notice dated 5th April 2024. - 17. The 2nd Respondent also states under paragraphs 10 and 11 of the affidavit in reply that he has no knowledge of the said Court order. All the above evidence was never rebutted by the Applicants. - 18. From reading the Court order in question, it is quite clear that the same was granted on 7th March 2022 but the same was never extracted until 5th April 2024 and it was only served onto the Respondents with a demand notice on the 9th day of April. - 19. The Respondents cannot be found to be in contempt of an order whose existence they did not know about. Counsel for the Applicants ought to have been vigilant enough to extract the order immediately after it was granted and serve the same onto the Respondents and any other person linked to the suit land.

20. Therefore, I find that the respondents did not have knowledge of the said order at the time when they performed the acts the applicants claim to amount to contempt.

# *III.* **Potential contemnor's failure to comply i.e. disobedience of the order.**

- 21. The Applicants state under paragraph 11,12 and 7,8 & 12 of their respective affidavits in reply that the 1st Respondent barricaded the 2nd Applicant's land with iron sheets and cut down the 1st Applicant's banana plantations for which actions the Applicants brought criminal proceedings against the 1st Respondent vide CRB 472 of 2024 which was later dismissed. - 22. The 1st Respondent has adduced evidence of a sale agreement in which he purchased the suit land from the 2nd Respondent in 2020 but only effected the transfer of the same into his names in April 2024. - 23. Suffice to say, that the Applicants never took any of the preliminary steps to protect the suit land from being dealt with to wit; lodge a caveat or even extract the temporary injunction order in time and have the same registered onto the suit and these would halt any transactions or even further transfers


until the determination of all controversies but the applicants did none of the above.

- 24. In those circumstance, the 1st Respondent had no bar to transfer his certificate of title into him names since not even the Court order was brought to his attention. - 25. Having found that the Respondents had no knowledge of the existing temporary injunction order, the Applicants cannot contend that all the Respondents actions were in contempt of the court order vide MA No. 978 of 2021.

Therefore, this issue is resolved in the negative.

# **iii) Whether the Applicants are entitled to the remedies sought.**

- 26. Having resolved issue one in the negative and finding the Respondents not to have been in contempt of the court order vide MA No. 978 of 2021, its quite clear that the Applicants are not entitled to any of the remedies sought for in this application. - 27. For the foregoing reasons, this application is hereby dismissed with no orders as to costs.

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


## **NALUZZE AISHA BATALA**

### **JUDGE**

**12th/07/2024**