Kyaggwe Coffee Curing Estates Ltd v Lukwajju (Civil Application No. 327 of 2014) [2014] UGCA 139 (20 November 2014)

Full Case Text

#### ITHE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPLICATION NO. 327 OF 2OL4 ARISING OUT OF CIVIL APPLICATION NO. 326 OF 2OL4 5 KYAGGWE COFFEE CURINGESTATES LTD APPLICANT VESUS

EMMANUEL LUK1VAJJU RESPONDENT

### CORAM: HON. MR. JUSTICE KENNETH I{AKURU, JA

#### REASONS FOR THE DECISIONS OF COURT

On 15th October 2074 when this matter came before me for extension of an interim order of stay of execution that I had issued on 2.d October 2014, I,found the respondent in contempt of the Order I had made and I committed him to civil prison for 14 days 10 15 and fined him Shs. 150,000,000. I undertook to give the reasons for my decision later. These are the reasons for my decision.

This matter carne up for hearing before me on 15th of October 2014 for extension on an interim order of stay of execution.

It transpired from the proceedings and the submissions of learned counsei that the respondent had refused to comply with my order staying the decree in High Court civil Suit No. 172 of 2Ol2 and consequently the execution of that decree.

In order to ascertain whether or not the order I issued on 2"d October 2Ol4 had been complied with I put respondent on the witnesses stand.

He was represented by Mr. Eric Muhwezi, who was in court. The appiicant was represented by Mr. Albert Byamugisha.

The respondent told court on oath that he was in possession and occupation of the suit land. He said he had been given possession by the High Court at Jinja.

10 He told court that he was aware of the order of this court issued on 2"d of October 2OL4 but had only received it at 2:0O the next day so he continued in occupation. He stated on oath that it was his lawyer who had advised him to remain on the land.

The respondent admitted that he had cut trees on the suit land as he was in the process of building a house there.

15 That he had stopped outting the tress after having received a phone call from his lawyer who was calling from this court.

Clearly from the onset the respondent and his lawyer no -had intention of complying with the court order.

This is not surprising in view of the history of this case

20 The respondent who was the plaintiff in Jinja High Court Civil Suit No. 1772 of 2072 was granted a Judgment in his favour on 25th September 20 14. This was a Thursday. On that very day according

to the affidavits of both the respondent and the applicant, learned Judge was in the middle of a criminal session and so he directed the Registrar to read the Judgment. Counsel for both parties were present when the Judgment was read. However, according to Mr. Muhwezi, the was Judge at hand to make corrections and to sign the corrected copy of that Judgment.

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- It appears the learned Judge had to adjourn the matter he was attending to at the instance of Mr. Muhwezi in order to make corrections and sign the said Judgment. Paragraphs 5-9 of Mohamed Alibhai's affidavit in rejoinder dated 14th October 2014 10 states;- - 5. In rejoinder to paragraphs 9 and 1 0 respectively, on $25^{th}$ September 2014 at about 1.00 p.m., the Judge directed the Registrar to read the judgment on his behalf. Thereafter, the Registrar sent the file to the secretary to make corrections to the judgment. - Further, I proceeded to the registry $with$ **Albert** 6. Byamugisha, an advocate working with J. B. Byamugisha Advocates, to file notice of appeal and a letter requesting for the typed record of proceedings. When the file was returned to the Registrar to sign and date the notice of appeal, he stated that he would do so only after the Judge had signed the corrected judgment. - 7. At about 4.20 p.m., Mr. Erick Muhwezi, the advocate for the plaintiff in the suit, interrupted the court proceedings in another case and requested the Judge to sign the judgment, which he did.

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- The Judge's clerk then left the court room with the file 8. which he brought the registry to give us copies of the judgment. Mr. Byamugisha then requested him to take the file to the Registrar to sign the notice of appeal but we found that he had locked his office and left for the day. - 9. Mr. Byamugisha then asked the Judge's clerk to put the file before the Registrar early on the next day as we needed to file an application for stay of execution urgently. However, the clerk informed us that the Judge was on leave and was coming in twice a week only to hear specific cases which he had fixed earlier on. He also informed us that our intended application would only be given date when the judge returns from leave at the end of October 2014."

On that same day 25th September 2014, the appellant lodged at the High Court, Jinja a notice of appeal. A letter notifying the registrar of the High Court, Jinja of the applicant's intention to appeal and requesting for typed proceedings was also filed by the applicant herein on the same day.

served upon the respondent's advocates who duly It was acknowledged receipt.

Without losing the fact that according to Eric Muhwezi learned counsel for the respondent, the learned trial Judge had signed the 25 Judgment in the afternoon of 25th September 2014, I note that a warrant for vacant possession was signed by one Henry Twinomuhwezi, an Assistant Registrar at High Court, Jinja and issued to one Twesigomuhangi Barnabas a court Bailiff on 26th September 2014. 30

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This was a Friday.

From what I could ascertain from the record of the court, Mr. Muhwezi appiied for execution of the decree of the High Court on 25th September 2014, t}::e very day the Judgment was delivered.

s He indicated in his application for execution that no appeal had i been preferred. It is clear from the record that on 25th of September : Mr. Muhwezi had already been served with a copy of a letter requesting for proceedings indicating that a notice of appeal had been lodged at the High Court. The Registrar of the High Court was 10 aware that a notice of appeal had already been logged in his court as the notice bears a High Court of Jinja stamp.

The Registrar nonetheless granted the application the next day 26th of September 2074, without taking any caution. He ignored the fact that the application for execution contained falsehoods. On that day 26th September 2Ol4 it appears that the court bailiff then sought the assistence of the Police to evict the applicants from the suit land.

The Commandant of the Police Land Protection Unit -- one Tryinomujuni Julius wrote a lengthy letter of instructions to the Director, Kampala Metropolitan Police, which I am constrained to reproduce at length. It reads as follows;-

## (Warrant of uacant possession

Forwarded hereuith is a utarrant of aacant possession of land issued against the 2nd defendant and addressed to Mr. Tuesigomuhangi Barnabos of M/S Perfect Associates Auctioneers and High Court Botliffs dated 26th Dag of September 2074.

Pursuant to the aboue therefore, gou dre requested to authorize the DPC Mukono Police Station to deplog Police personnel to uitness the execution of the utatqnt /court orders ONLY after thorough inaestigations of the situation on the ground and ascertaining whether the warrant is genuine,

Great care.should be taken to find out uthether there are no anA other court orders in place as the exercise inoolues loss of propertg. Thus before execution bg court bailiffs should aake sure a copg of the Warrant/ Court order is seraed on the 2^d defendant. The DPC Mukono Police station should Jirst ascertain from the 2"d defendant uhether theg uere dulg seraed and then the exercise utill go on onlg in the absence of ang justiftable legal impediment.

Before execution the DPC Mukono Station should add.ress the 2nd defendant in the presence of Court Bailiff and others uitnessing the exercise to that theg can understand uhg the exercise is to be carried out. The court bailiff must prepare an inuentory record and this tnust be utitnessed bg the 2^d defendant and other people present.

Where the suit propertg is not properlg described endeauor to find. the L. C officials or emplog seroice of a professional surueg to aaoid handing oaer propertg not in dispute.

Police should. not act in isolation but in liaison toith the RDC DISO and the L. C ofJicers. Where possible one or all the obooe mentioned officers should @itness alongside the police and ensure that all persons inuolued in the exercise are treated hurnanelg. Police deploged. offi.cers are tasked ONLY to taitness, keep lana and order but should not in ang utag participate in the exercise, The Police should ensure the execution is carried. out peacefullg and that should the exercise turn uiolent be called off or holted for furt he r c onsultatio n s. "

This letter was received at the High Court Jinja on 2"d October 20t4.

The Court bailiff on 2"d October filed at the High Court Jinja a handwritten note, with heading "Certificate of execution of sivinq s vacant possession of land comprised FRV 3 Folio 13 Lwamanvonvi To the creditor".

- The letter was to the effect that he had handed over vacant possession of the suit land to the respondent. - There was no indication whatsoever that the guidelines set out by the Police had been followed. The evidence on record by way of affidavit of both parties clearly indicates tht instructions of the Police were ignored by the respondent, his lawyer, the court bailiffs and the Junior Police Officers. 10 - No inventory of the movable property belonging to the applicant had been made and released to him. There was no indication that any one representing the ap'plicant was present when the warrant was being executed except one Peter Musana who is stated to be the applicant's estate manager. 15

I4 his affidavit Peter Musana narrates what transpired on that day as follows;- 20

### 3. I requested for a copg of the order but he (court bailtffl declined to giae it to me. 4. The bailiff and. his workmen immed.iatelg proceeded to throut the applicant's property out of the buildings. We attempted to rno,ke ot uid.eo recording but the OC threatened to arrest us if ute did so. Thereafter, a bulld.ozer reglstration number UAE 793X proceed.ed to demolish the office block but the OC stopped them after part of it hq.d been demolished.

5. At about 2. OO p.m., the OC directed the bailiff and his workmen to leaue the land and qlso ord.ered, them not to demolish dng n@re buildings. I was then given a form to sign. The fann utorkers then proceeded to gather all the item-s uthich had been throun out. Hottseaer, dt about 4. OO p.m,, the bulldozer returned and demolished the rest of the buildings. We reported the matter to the OC but he was totallg uncooperatiue and declined to record our statements.

6. On the euening and night of Qna October 2O74, the respondent, in contempt of the interirn ord.er of stag of execution uhich utas issued in C. A. C. Application No. 327 of 2074, Kgaggwe Coffee Curing Estates Ltd u Emmanuel Lukutajju, brought people to the land. uho felled the applicant's trees,

loo.ded and transported utood on motor uehicles registration numbers UAU 799Q, UAK 3724, UAH 724T and UAL 489W.

- 7. Theg continued with their illegat actiaities aforesaid on 3d October 2O74 until about 3. OO p.rn. and on the night of 4ta October 2074 where theg used motor uehicle registration number UAP 954P, blue in colour. A copg of applicant's aduocates' letter to the Registrar of the Court of Appeal uith copg to respondent's adaocates protesting the sdme is qnnexed. hereto and marked "P7". - This evidence was not challenged by the respondent. In fact it was relied upon by the respondent as proof that execution had indeed already taken place by the time the order of this court was received and as such there was notfiing to stay. 15

Taking into account all that had transpired before the filing of the application and after listening to the submissions of both counSel I made the following order on the 2"d of October 20 14. 20

## ORDER

TIJIS APPLICATION coming up for hearing this 2"a dag of October 2O74 before the IIon. Justice Kenneth Kakuru, JA., in the presence of Albert Bgamugisha, counselfor the

applicant, and Erick Muhwezi, counsel for the respondent, it is hereby ORDERED that: a. The application be allowed.

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b. An interim order of stay of execution of the High Court Decree in Jinja High Court Case No. 172 of 2012 do issue pending the determination of the substantive application of stay of execution which I direct that it be fixed inter parties on $15th$ October 2014 at 10.00 a.m.

- c. Status quo to be that the applicant is still in possession of the suit property, the destruction of *houses notwithstanding.* - d. Both parties and other authorities including the Police are required to respect this order as the law requires. - 20

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e. Costs of this application will abide in the results of the substantive application.

The above order was staying the decree of the High Court in HCCS No. 172 of 2012 in which it was decreed as follows;-

"IT IS DECREED that judgment be entered for the Plaintiff and the following orders are made:-

7. The 2"d Defendant is ordered to cancel the 7't defendont's certificate of title RRy 3 Folio 73 at Lutangongi and to issue to the Platnttff a Mailo tand. certificate of Title, Kgaggue Block 797 Plot 74.

## - 2. The 7"t defendant ls ord.ered to giue aacant i : possesston of the suit land to the Plaintiff. 3. 1't defendant is to pag costs to the Plalntlff."

My order of 2"d October above was crafted carefully and intentionally. The purpose of the order was to stay the whole decree of the High Court, and not just the execution process as the decree is not restricted to vacant possession.

15 The decree of the High Court above is much wider than an order of vacant possession. Vacant possession in this case was in respect of a vast piece of land covering 258 acres. This land had on it buildings, trees, crops and movable property. It is not a one bedroom house in a city suburb. Execution of a decree is not an 20 event. It is a process and it is not complete until the whoie decree haq been complied with. Execution is also subject to the appeal process. That is why a party applying for execution of a decree is required to indicate whether or not an appeal has been preferred against the decree. I am alive to the law that an appeal does not operate as a stay of execution. In this case since the decree was stayed by the order of this Court, the respondent ceased to have

any legal right upon which he could occupy and use the suit land. He could not harvest the crops or cut trees on that land as decree upon which his possession would have been based had been stayed by a superior Court.

5 The conduct of the appellant, his counsel, the Police and I dare say even the High Court in this matter is regrettable to say the least.

Tlhis was a weli planned and calculated effort by the respondent and others mentioned above to defeat the applicant's right of appeal and render the appeal nugatory.

10 This is an abuse of Court process, abuse of power, abuse of office, and derogation of justice.

When all those concerned found that they could not achieve their objective in view of my order, they decided deliberately not to obey it.

15 It is for this reason that I .found the respondent in contempt of Court.

The court order issued by this court was intended not only to maintain the stafus quo, bul also to preserve and protect the applicirnts'right of appeal. Unlike an order of temporary injunction whose main objective is to preserve the stafus quo, an order of stay of execution, although being an injunctive remedy, its major objective and purpose is also to protect and preserve the applicants' right of appeal.

The Supreme Court in the case of Hon. Seklkubo and Others us Attorneg General (Constitutional oppllcation No. 4 of 2014) had this to say;-

"Rule 2(2) of the Judlcature Supreme Court Rules glaes this Court aery wlde dlscretion to make such ord.ers as mag be necessary for achieoing the ends of 1'u stice. One o the ends o\_f iustice is to presertte the rtqht of appeal. In the cases of Yakobo M. Senkungu and Ors us Cresensio Mukasa, (Ciail Application No. 5/2073 and. Guliano Gargio os Calaudio Csadio(Ciuil Application 3/2073); this Court stated tha't " the qrantinq of interim ord.ers is rneant to help pat/aies to preserue the status quo and then haae the main issues betuteen them determined the ll court as oer the Rules. " (Emphasis added).

The Supreme Court in JI4OSES MACEKENYU II(AGOBYA Vs ISAAYA I{ALYA qnd &h.ers (Ciuil Appeal NO. Og OF 2074).

A recent decision discussing the question o[ whether or not a decree of court had been executed as to render an application such\_as this one overtaken by events had this to say;-

> "As to whether the executlon has been completed, the releaant part of the decree reads as follows:

It is herebg declared, ordered. and decreed as 25 folloutsy

- 7. That the appeal is allouted and the jud.gment of the High Court is herebg set aside and substituted uith the judgtnent of this Court. - 2. That the respondent is a trespasser on O7/ that land he occupies uthich is outside the land first occupied bg Mikirane and later' bg Seluester lkagobga and an order of eaiction is hereby issued against the respondent in respect of that land. - 3. That the respondent is entitled to and hos a right to all that piece of land he occupies uthich land utas Jirst occupied bg Mukirane and later on bg Seluester lkagobga. - 4. That the respondent is ordered to pag to the 7st appellant shs. 6,000,000 being general damages. - 5. That the respondent shall pag to the appellants the costs of this appeal and-in the lower cottra."

The decree aboue is clearlu not onllt for aacant possession, it includ.es ord.ers for general damages as well as costs which o.re uet to be satisfied bu the Applicant. For that reason, I do not accept the submission bu Counsel fo 15 r the Reseondents that the

execution of the d.ecree in Coutt of Appeal Ciuil Apoeal No. O82 of 2072 has been completed since there is no eoid.ence that the Appllcant has satisfied the rest of the orders under the decree. Hence, this applicqtion hos not been ouertaken bg events or moot q.s alleqed ba Mr. Tebuasa. (Emphasis added).

In Hon. I Sekikuubo and Others as The Attorneg General of Uganda Constltutlonal Appltcation No.4 of 2074, a simllqr ergument utas made in thls Cout't, on behalf of the Respondents, houteaer the Coutt, found that execution was incomplete euen after the Hon. Speaker of Parliament had. alreada utritten to the Applicants orderinq them to aacate their seats and the Clerk to Parliament had qone ahead to instruct the Electoral Commission to conduct fresh elections. The . Court utent ahead ba a maiorita d.ecision to qrant an interim order in order to preserue the App licq.nts' rtaht of aDoeal." (Emphasis added).

Tht respondent, his counsel, the Police and other had no right to disobey the Order of this Court on pretext that it had been overtaken by events. The Police officer in Charge of the Land Protection Unit had the audacity to write to the Registrar of this court explaining why the order of this court was ignored and how it had been over taken by events. In his own words he states that;-

uI inquired from Mukono Police Statlon and the offt.cers ntho roitnessed the execution conftrmed that the propertg utas handed ooer Ernmanuel Lukutajju utho is currentlg in possession of the disputed land. The court bailtff filed returnsl a photo copg is herebg attached.

This would. mean that since the execution u)as cornpleted before the interim order for stag of execution u)as granted Court of Appeal on the 3.d da.g of October 2O74 since execution returns utere receiued bg High Court of Uganda at Jinja on the 2^d dag of October 2O74 execution hanting been cornpleted on the 7.t dag of October 2074, hence there is no execution pending and to stag."

This particular Police Oflicer ignored the fact that the execution had been carried out in total disregard of his earlier instructions issued only days earlier. I wiil not speculate why.

I have no doubt in my mind that the respondent on the advice of his lawyer and with the convenience of the Police made up his mind not to obey the order of this court issued on the 2'd of October 2014. He justified his action by giving the order the interpretation that suited him. 20

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The order in question was not issued on the $3rd$ of October 2014. It was issued on the $2^{nd}$ of October 2014. Court orders take effect the moment they are issued and not when they are received byor served upon the parties. Orders in rem bind the whole world and not just the parties. The argument that an order of court takes effect only when it served upon the concerned party has no legal basis. An order or decree of Court is binding and effective the moment it is pronounced and signed. It binds even those who may not be aware of it.

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The issue here is whether or not the respondent, his lawyer and the Police are in contempt of Court.

- This question of contempt of court was dealt with a length by the High Court Commercial Division in the case of **Stanbic Bank (U)** 15 LTD, and Jacobsen Uganda Power Plant Company Ltd versus The Commissioner General Uganda Revenue Authority, (High Court Misc. Application No. 0042 of 2010.) - In that case the learned Judge Hon. Lady Justice Irene Mulyagonja 20 J while defining contempt of Court quoted **Lord Salmon's** words in Jenison vs Baker [1972] 1 ALL ER 997 at pages 1001-1002 as follows;-

"Contempt of court" is $an$ unfortunate and misleading phrase. It suggests that it exists to protect the dignity of judges. Nothing could be further from the truth. The power exists to ensure

that justice shall be done. And solely to this end it prohibits acts and words tending to obstruct the administration of justice. The public at large, no less than the individual litigant, have an interest, and a very real interest, in justice being effectively administered. Unless it is so administered, the rights, and indeed the liberty, of the individual will perish. Contempt of court may take many forms. It may consist of what is somewhat archaically called contempt in the face of the court, e.g. by disrupting the proceedings of a court in session or $\bm{b}\bm{u}$ improperly refusing to answer questions when giving evidence. It may, in a criminal case consist of prejudicing a fair trial by publishing material likely to influence a jury. It may, as in the present case, consist of refusing to obey an order of the court. These are only a few of the many examples that could be given of contempt."

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I agree with the above definition of contempt of court.

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Court orders must be respected and must not be ignored or disobeyed simply because the parties do not accept them or perceive then to be wrong, irregular or of no effect. When a party refuses to obey a court order he or she invites court to find him or $\frac{25}{25}$ her in contempt.

Romer LJ retaliated the above principle in **Hadikinson vs** Hadkinson [1952] ALL ER 567 as follows;-

> "A party who knows of an order, whether null or regular or irregular, cannot be permitted to disobey 19

it... it tDould. be most dangerous to hold that the suitors, or their solicitors, could themselaes judge or irregular. That theu should cotne to the court and not take lit) upon themselues to determine such a question. That the course of a partg knouting of an order, uhich was null and irregular, and who night be affected bg it, utas plain. He should applu to the court that it nisht be dlscharqed. As lonq as it existed. it must not be disobeged."

10 15 20 I agree entirely with the above proposition of law. The same position was taken by the High Court of Kenya, in Wildlife Lodges LTD v. Country Council of Narok [2OOSI EA 344 in which Oiwans J observed that the Judiciary can only be strengthen if parties consistently obey its orders, and that parties should not take it upon themselves to decide on their own which court orders are to be obeyed and which oneq to ignore. That the whole purpose of litigation as a process 6f ludicial administration is lost if court orders are not complied with. It would be dangerous to hold that suitors or their solicitors, could themselves Judge whether an order was null or void. Whether it was regular or irregular.

I agree with Mulyaeonja J when she stated in Stanbic Bank (U) LTD case (Supra) that;-

## "All court orders hante to be respected., uthether aalid 25 or inaalid ex-par-te or inter-parte"

I hasten to add that all court orders remain in force until they are complied with, set aside or until they expire, provided ttre expiration is set out in the order itself.

This court while addressing the issue of contempt of court in tlganda Super Legue LTD as Attorneg General qnd 6 Others Constitution Applicatlon No. 72 of 2073 Kiryabuire J stated the position of the law as follows;-

"A purpose of the Court's powers to make findings of contempt is to ensure that orders of court are obeged. This jurisdiction is required to be co-extensiue uith court's jurisdiction to rnake orders uthich need the protection uthich the iurisdiction to make findings of contempt prouides."

In Housing Finance BANK Ltd & Another Vs Edward Musisi, Miscellaneous Application No. 158 of 2O1O this Court held that the whole purpose of litigation as a process of ju\_dicial administration is lost if an order issued by Court through judicial process is not complied with. 20

I did find as a fact in this case that the respondent was contempt of order of this court. I would also have made a similar linding against his advocate Mr. Eric Muhwezi and ACP. TWinomujuni Julius. I did

not, because rules of natural justice require that no person is condemned unheard.

The two persons had not been given an opportunity to be heard and as such no such orders could made against any of them.

5 For the above reasons I made the order that I made against the respondent on 1Sth October 2O14.

Before I take leave of this matter I would like to make the following observations.

That the respondent appeared before me and testified on the issue of contempt of court. I observed that he was not very conversant with the English language. I do not think he is literate enough in English to have read and understood the affidavits he deponed to in this matter and in other interlocutory matters in respect of this intended appeal. 10

I have read the Judgm6nt of Namundi J from which the intended appeal ariSes. All I can say that it raises very serious issues and important that require the scrutiny of this court. The intended QpReat is therefore in my humble view, likely to raise serious issues of law and fact. This court has a dut5r to protect the applicants' right of appeal. The respondent on the other hand who has never been in possession of the suit land, will not be prejudiced by a stay of execution of the High Court decree pending appeal. He has as much interest in the appeal as does the applicant. He should 15 20

therefore wait for the appeal process to end and should comply with the orders of court...

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Dated at Kampala this ....... $\mathcal{A}$ ....................................

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HON. MR. JUSTICE KENNETH KAKURU JUSTICE OF APPEAL