Kwesiga v Nankunda (Miscellaneous Application 822 of 2022) [2023] UGHCFD 86 (21 April 2023)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (FAMILY DIVISION) MISC. APPLICATION NO.822 OF 2022 (ARISING OUT OF CONSOLIDATED MISC. APPLICATION NO.684 OF 2021 AND MISC. APPLICATION NO.328 OF 2021) (ARISING FROM FAMILY CAUSE NO.16 OF 2018) (ARISING FROM DIVORCE CAUSE NO.46 OF 2014) PIUS KWESIGA :::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT VERSUS**

**JACKIE NANKUNDA :::::::::::::::::::::::::::::::::::::::::RESPONDENT**

# **Before: Ketrah Kitariisibwa Katunguka.**

## **Ruling.**

## **Introduction:**

- 1. Pius Kwesiga (herein called **'the applicant'**) filed this application against Jackie Nankunda (herein called **'the respondent'**); under section 98 of the Civil procedure Act, section 33 of the Judicature Act, Article 23(1)(a) &(b) and Article 128 (2) and Article 31(5) of the Constitution, sections 3 and 85 of the Children act as amended, section 98 of the Civil procedure Act, Cap.71 and Order 52 rule 1,2 and 3 of the Civil procedure Rules; seeking orders that; the respondent be ordered and or compelled to produce the minor back into the hands of the applicant who has primary care and control of the minor; the respondent be found in contempt of court orders issued arising from the ruling of 14th June 2022; that the respondent be barred from taking the minor out of the jurisdiction of this honorable court without the written consent of the applicant; the respondent be ordered and compelled to hand over into the custody of the applicant the minor's passport; the respondent's visitation rights be limited and or supervised; the respondent be ordered to pay for costs of this application. - 2. The grounds of this application are contained in the Notice of Motion and detailed in the affidavit in support deposed by the applicant but briefly are that:- on the 14th day of June 2022 this court delivered a ruling in Misc. Applications No.684 of 2021 and 328 of 2021 (consolidated) granting primary custody of Alfa Nankunda Kwesiga (herein after referred

to as **'the child'**) to the applicant herein; court also ordered that the respondent shall have a right to see the child and to spend time with her during school holidays and on any other day with prior arrangement with the respondent;

- 3. The respondent has since taken the child against her will and without informing and or consent of the applicant to the United Kingdom with the intentions of the child being domiciled there; the respondent has since cut off communication with the Applicant about the exact safety, wellbeing and whereabouts of the child; the school term at KISU where the child goes to school commenced on the 22nd of August 2022 and the child is not in school; - 4. The respondent hasn't returned the child to the custody of the applicant so as to begin school; the applicant prays that this court takes cognizance of the fact that the minor's intended study and or relocation to the United Kingdom at a tender age of 13 years and without her parents is not in the best interests of the child and will cut off the applicant's primary custody rights; therefore it is in the best interests of the child that this application is granted. - 5. In opposition, the respondent filed an affidavit in reply contending that in one of the previous consolidated miscellaneous applications, court granted custody of the child to her; disputes the applicant's claim that custody was granted to him; she admits to have taken the child to the United Kingdom on the basis that it is the child who expressed her desire to stay longer in the united Kingdom to study from there;the applicant is aware of the child's whereabouts;

# **Representation:**

6. The applicant is represented by counsel Mwebesa Raymond of M/s Kampala Associated Advocates, while the respondent is represented by counsel Yiga Shafir of M/s Yiga Advocates.

Both counsel filed written submissions on the following issues for courts' determination.

- 1. Whether the respondent is in contempt of court orders vide consolidated Miscellaneous Application No.684 of 2021 and Miscellaneous Application No.328 of 2021? - 2. What are the remedies available?

# **Background:**

7. Court in consolidated Miscellaneous Applications No.684 of 2021 and No.328 of 2021 delivered a ruling on the 14th day of June and issued orders to wit;

**a)** MA 684/2021 is dismissed; Page **2** of **10**

- **b)** MA 328 majorly succeeds; - **c)** The custody order made on the 16th day of September 2019 is here by varied; The Respondent is granted primary custody of the Minor Alfa Nankunda Kwesiga and shall take care and control of the said minor; - **d)** The applicant shall have the right to see the child Alfa Nankunda Kwesiga as and when she needs to, but with prior notice to the respondent and she shall have the right to pick her up and spend time with her during the holidays and on any other day with prior arrangement with the respondent; - **e)** The parties shall in all circumstances take into consideration the wishes of the minor. - **f)** Each party shall bear their costs. - 8. It is the applicant's case that in spite of the aforementioned orders, the respondent has without the applicant's knowledge and consent taken the child to the United Kingdom and has since cut off the communication with the applicant about the exact safety, wellbeing and whereabouts of the child; so the respondent should be found in contempt of court orders.

# **Determination:**

- 9. Counsel for the applicant cited *Uganda Super League Vs. Attorney General Consolidated Application No.73 of 2013* and **Khabusi Building Contractors and Furniture Ltd V. PPDA (Misc. Application No.99 of 2015** on the definition and purpose of the principle of contempt of court; in the latter case court justice Musota stated: '*the primary purpose of contempt power is to preserve the effectiveness and sustain the power of court; the second purpose is to protect and enforce the party's rights by compelling obedience to court orders and judgements. Civil contempt proceedings are appropriate where the court is able to restore the status quo, if the court is unable to do criminal contempt proceedings are appropriate. The elements of indirect contempt that must be proved for an application for contempt to succeed are that there is the doing of as forbidden act or the failure to comply with the order of court. That this impairs the authority or impedes the functioning of the court;"* - 10. That for contempt of court to be found, the following principles have to be established; existence of a lawful order; potential contemnor's knowledge of the order; potential contemnor's failure to comply, that is disobedience of the order; counsel submits that the there is an existing lawful order granted on 14th day of June 2022; that the ruling was brought to the attention of the parties through their lawyers; that the respondent had full knowledge of the orders of court; the respondent deliberately took the minor out of

jurisdiction to United Kingdom to deprive her from enjoying her right to be physically cared for by her parents, particularly the applicant's right to sole custody of the child; the respondent is in disobedience of court's orders arising out of the ruling of 14th June 2022 beyond reasonable doubt.

- 11. For the respondent, counsel submitted that the authorities about some of the principles of law in respect to contempt hearings relied on by counsel for the applicant are distinguishable from this application; that the actions of the respondent taking the child to United Kingdom do not fall within the categorization of contempt of court; quoting the principles applicable to the interpretation of an order of contempt proceedings as cited in the case of **Gurtins V. Panton-Goyert. 2008 BCCA 196 at para 15**; counsel argued that whereas there is an existing lawful court order dated 14th day of June 2022, the applicant has not stated which part of the order and what obligation or responsibility in the order was disobeyed by the respondent; - 12. That according to the order, there is nothing that states that the respondent was not supposed to take the child to the United Kingdom for a holiday; therefore counsel views that the obligations in the order cannot be stretched beyond that which it states. - 13. That there is an ambiguity in the orders as both parties are under the belief that they had or have primary custody of the child; that this cannot be interpreted against the respondent; counsel points out that according to the orders, custody was granted to the respondent; that since the respondent was the applicant in M. A No. 684 of 2021 which was dismissed, it only meant that she became the respondent in the applicant's application No. 328 of 2021; to that effect counsel mentions that there cannot be uncertainty in the obligations or scope of the orders; - 14. Further, it is submitted for the respondent that the child who is 13 years old and a Citizen of the United Kingdom expressed her desire to the applicant that she wanted to stay and study in the United Kingdom; therefore, forcing her to leave her country of citizenship would be illegal and the applicant has not proved the elements of the contempt; - 15. Further still it was submitted for the respondent that this court does not have the jurisdiction to make subsequent orders sought by the applicant and it would be impossible to enforce the same; for the child is citizen of the United Kingdom and is domiciled in her country of citizenship, therefore that this court ceases to have jurisdiction over her and it would be moot and impracticable for the respondent to even implement the orders sought; - 16. In rejoinder, counsel for applicant reiterates the earlier submission contending that; the respondent's argument that the court order in issue gave her time in holidays to spend

with the minor without a bar to taking her to the UK on a holiday and also alleging that the same court order is ambiguous in far as she thought that she had the primary custody amounts to approbation and reprobating; therefore counsel submits that the respondent was never confused by the court order in issue as there is no ambiguity in this matter;

17. That if the respondent wanted to challenge courts' orders that the child cannot be subjected to laws of Uganda on the basis of being a British citizen, the respondent should have appealed against the order of court rather than defying it; that it is not within the best interest of the child to be left in the United Kingdom without disclosing her address to one of the parents.

## **Court's analysis.**

- 18. I have found it necessary to state that while a litigant may misunderstand certain legal concepts it is the duty of counsel to present the case and address legal issues professionally; while counsel seeks to win for their clients winning must be within the law. Counsel for the respondent raises an issue of jurisdiction contending that this court has no jurisdiction over the child as it is apparent that the child is citizen of the United Kingdom and is domiciled in her country of citizenship; to support his argument, counsel attaches on his submissions a purported copy of the child's United Kingdom passport which shows the date of issue as 29/7/2022; - 19. A valid passport is prima facie evidence of citizenship; however, I have carefully examined the passport which is said to belong to the child; whereas it has the child's photograph and is in her names, the passport number was erased and concealed with black ink; in my opinion, a passport is not valid without a number; for it is the unique number that certifies the identity and nationality of its holder; in the context, such a document cannot be admitted in court as evidence of the child's valid passport. - 20. **Article 15 of the Universal Declaration of Human Rights** states that "Everyone has the right to a nationality", and No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality". By international custom and conventions, it is the right of each state to determine who its nationals are. - 21.**Article 10 (a) of** *The Constitution of the Republic of Uganda, 1995* stipulates ways through which citizenship by birth can be acquired; it stipulates : *"The following persons shall be citizens of Uganda by birth- (a) every person born in Uganda one of whose parents or grandparents is or was a member of any of the indigenous communities existing and residing within the borders of Uganda as at the first day of February, 1926 and set out in the Third Schedule to this Constitution; and (b) every person born in or outside Uganda one of whose parents or grandparents was at the time of birth of that person a citizen of Uganda by birth."*


- 22. Under **Section 98 of the Civil Procedure Act** the High Court is endowed with unlimited original jurisdiction in all matters and such appellate and other jurisdiction as may be conferred on it by this Constitution or other law (see *Article 139 (1) of The Constitution of the Republic of Uganda, 1995*). **Section 29 of the Divorce Act Cap.249** states; *"In suits for dissolution of marriage, or for nullity of marriage or for judicial separation, the court may at any stage of the proceedings, or after a decree absolute has been pronounced, make such order as it thinks fit, and may from time to time vary or discharge the orders, with respect to the custody, maintenance and education of the minor children of the marriage, or for placing them under the protection of the court."* - 23. The parties to this instant applicant as parents to the child are in no doubt citizens of the Republic Uganda; specifically under paragraph 1 of the applicant's affidavit, he deposes that he is *"an adult male Ugandan of sound mind…";* therefore, by *jus sanguinis (*right of blood) of her descendants, the child in issue is a citizen of Uganda; the sheer fact is that the parents of the child are domiciled within this court's jurisdiction; their marriage was dissolved in this court; under the circumstances, this court is clothed with jurisdiction to hear a custody of the child in question regardless of where she is.

#### **Resolution on the merits of the case.**

*Whether the respondent is in contempt of court orders vide consolidated Miscellaneous Application No.684 of 2021 and Miscellaneous Application No.328 of 2021?*

- 24.**Black's law Dictionary 7th Edition** defines contempt of court as; "Conduct that defies the Authority or dignity of court**" ;** and **Halsbury's laws of England [Volume 9, 4th Edition**] describes civil contempt as that which arises when there is disobedience to judgment, orders or other court process and involves private jury. - 25. For contempt of court to be found, there must be existence of a lawful order; potential contemnor's knowledge of the order; potential contemnor's failure to comply, that is, disobedience of the order. (*see; Uganda Super League V Attorney General Constitutional Application No.73 of 2013; Stanbic Bank (U) Ltd and Another VS the Commissioner General Uganda Revenue Authority M. A 42/2010*). - 26. Compliance with the law declared by court through its orders is a pillar in the rule of law otherwise there is no use for the law if compliance thereof is ignored; if one is unhappy with the order the only way is to apply to have it set aside by appeal or revision/review; otherwise it stays; (see *Amrit Goyal Vs Harichard Goyal &3 others Civil Application. No. 109 of 2014*; an order of court is not a mere technicality which can be ignored. If we allow Court orders to be ignored with impunity, this would destroy the authority of Judicial Orders which is the heart of all judicial systems;

- 27. I n **Housing Finance Bank Ltd & Another vs. Edward Musisi Miscellenous Application 158/2010 CA** relied upon in **Mutambo Wepukhulu vs. Wasswa Balumywa & 2 Others HC CD MA 276 of 2012**. the law on contempt was stated that "*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 in totality, in all circumstances by the party concerned subject to the party's right to challenge the order in issue... It is the responsibility of and duty of the party concerned, in case that party for some genuine reason finds compliance with the court order not possible, to appropriately move court issuing the order and bring to the attention of the court the reasons for noncompliance."* - 28. In the context there are three conditions necessary to prove contempt to wit; a) Existence of a lawful order; b) Contemnor's full knowledge of the order and c) Contemnor's potential failure to comply with the order (disobedience); (see: *Stanbic Bank (U) Ltd and Jacobson Power Plant Ltd Vs. Uganda Revenue Authority (supra) 42/2010;* In the case of *Hon. Sitenda Sebalu Vs The Secretary General of the East African Community Ref. No. 8 of 2012*); - 29. The intention of contempt proceedings is also known; that disdain of a court order cannot be allowed for court orders are not given in vain. It has been said that court cannot sit around and watch its orders disdained; *see Angelina Lamunu Langoya VS Olweny George William (HCMA NO 30/2019) and Megha Industries (U) Ltd VS Comform (U) Ltd MC 21/2014;*

I shall now consider the circumstances of this case to see whether the conditions of contempt exit;

## *Existence of a lawful order and Contemnor's full knowledge of the order*

30. On the 14th day of June 2022 this court delivered a ruling in consolidated Miscellaneous Applications No. 684 of 2021 and No.328 of 2021; under paragraph 2 of the respondent's affidavit in reply, she confirms that the two miscellaneous applications were determined by court where one was dismissed and one succeeded.

I find that the existence of a lawful order and awareness of the order by the Respondent is not disputed.

#### *Contemnor's potential failure to comply with the order:*

31. In reference to court orders as issued on the 14th day of June 2022 in consolidated Miscellaneous Application No.684 of 2021 and Miscellaneous Application No.328 of

2021; primary custody of the child was granted to the respondent/the applicant herein who was mandated to take care and control the child; on the other hand, court stated that the applicant /the respondent herein has a right to see the child as when she needs to, but with prior notice to the respondent and she shall have the right to pick her up and spend time with her during holidays and any other day with prior arrangement with the respondent.

- 32. It is the applicant's case that notwithstanding court's orders, the respondent has proceeded to take the child out of the applicant's custody to United Kingdom without the applicant's consent; that the applicant does not know the exact whereabouts of the child; in her reply, the respondent does not deny that she took the child out of the country to United Kingdom; but in her defence she states that the child who is 13 years old expressed her desire to stay and study in the united Kingdom; that the applicant is aware that the child is in school in the United Kingdom as she is a citizen of the United Kingdom; the child while in the United Kingdom is being cared for by some relatives and it is in the best interests of the child to get an education in an environment where she intends to live in; - 33. From the respondent's pleadings and the submissions of her counsel; she claims that under the orders, custody was granted to her as she was the respondent in the Miscellaneous Application No. 328 which succeeded; hence it is submitted for the respondent that the orders in the ruling are ambiguous; - 34. According to court record that is not the true position; on the 13/12/2021 during the hearing of Miscellaneous Application No.684 of 2021 where the respondent (Jackie Nankunda) was the applicant and Pius Kwesiga the respondent, court decided that the two miscellaneous applications be consolidated; court gave directions for parties to file written submissions; on 2/3/2022 the respondent herein filed submissions as the applicant; the applicant herein on 14/3/2022 filed written submissions in reply as the respondent; in rejoinder the respondent herein filed applicant's submissions in rejoinder; - 35. Family Cause No.16 of 2018 (from which the aforesaid consolidated miscellaneous applications arose) was filed by the respondent herein; in consequence, on the 16th day of September 2019 the primary custody of the child was granted to the respondent herein; upon analyzing the evidence brought before court during the hearing of the consolidated miscellaneous applications; court decided in its ruling dated 14/6/2022 under paragraph 50 page 17 of the ruling; I quote; *" …in view of the facts of the case and the evidence and decided that this child's best interests will be best catered for if she is in the respondent's primary care and custody; with the applicant entitled to her right to spend time with her but with prior notice to the respondent…"*

Page **8** of **10**

- 36. Therefore, it is on that basis that court in its ruling of the consolidated Miscellaneous Applications No.684 of 2021 and Miscellaneous Application No.328 of 2021 under paragraph (c) of the orders varied the custody order issued on 16/9/2019; and instead granted the primary custody to the respondent/applicant herein. - 37. The meaning of varying is to modify or change something to make it different. It is against this background that I find that court orders in the consolidated miscellaneous applications are clear and were specific to whom primary custody was being granted; who is the applicant herein as the respondent's previous custody was varied. That being so the respondent in this case cannot claim that the primary custody was granted to her in the consolidated miscellaneous applications; yet the primary custody orders granted to her were varied; in any case assuming that the respondent was mistaken counsel ought not have presented such argument! - 38. The respondent does not deny having taken the child out of the country and left her there without the applicant's permission; she argues that it is the wish of the child to stay and study in the United Kingdom under the care and supervision of a relative; she has not disclosed to the applicant the specific location of the child ;in matters where court has granted custody to a person, it is that person who would consider the wishes of the child and not the one without custody before the child's living place can be changed; it appears the respondent took the child and left her in custody of a third party in total disregard of the orders of this court. - 39. The respondent seems to want this court to determine whether what she did was in the interest of the child and so should be sanctioned! Court can not do that without being at the risk of reviewing its own ruling without locus. The questions for this court's determination are: was there a court order? Was the respondent aware of the order and has she breached the order? I answer all the three questions in the affirmative and hold the respondent in contempt of this court's orders. Trying to justify her actions is in my view further contempt for the position of the law is that where a litigant is not happy with the order she/he must legally challenge it but as long as it stands it is binding until it is set aside.(see Housing Finance Bank Ltd & Another vs. Edward Musisi ) supra. - 40. In the premises, the respondent's decision of moving the child to the United Kingdom without the knowledge and consent of the applicant who legally has the primary custody of the child amounts to disobedience of court orders; therefore, I hereby find the respondent to be in contempt of court orders issued on the 14th day of June 2022 in consolidated Miscellaneous Application No.684 of 2021 and Miscellaneous Application No.328 of 2021;


## *Remedies:*

41. Costs follow the event therefore the respondent shall bear the costs of the application.

I allow the application and make the following orders.

- 1. The application succeeds; - 2. The respondent is in contempt of court orders issued on the 14th day of June 2022 in consolidated Miscellaneous Application No.684 of 2021 and Miscellaneous Application No.328 of 2021; - 3. The respondent Jackie Nankunda is hereby directed to bring back to Uganda the child Alfa Nankunda Kwesiga from the United Kingdom within three months from this ruling; and to hand her over to Pius Kwesiga immediately thereafter; in accordance with the custody orders made by this court. - 4. Jackie Nankunda is barred from taking the child Alfa Nankunda Kwesiga out of the jurisdiction of this honorable court without the written consent of the applicant; - 5. The respondent shall bear the costs of this application.

Ketrah Kitariisibwa Katunguka Judge 21/4/2023

D e l i v e r e d b y e m a i l to:mwebesar@gmail.com,ainembabaziweunice@gmail.com,shafir@yigalaw.com