Luyombo & 5 Others v Nankya & Another (Miscellaneous Application 666 of 2024) [2024] UGHCLD 152 (31 May 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [LAND DIVISION] MISCELLANEOUS APPLICATION NO. 666 OF 2024** *(ARISING FROM CIVIL SUIT NO. 381 OF 2011)*

- **1. AMIS LUYOMBO** - **2. HASSAN KIBIRIGE** - **3. TWAHA KAKANDE** - **4. ABDU MAYANJA :::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS** - **5. REHEMA NALULE** - **6. SULAITI KASULE**

#### **VERSUS**

**1. AGNES NANKYA**

**2. ROBERT MUWAZI :::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS**

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

#### **RULING.**

#### *Introduction:*

- 1. This is an application by notice of motion brought under Sections 98 of the Civil Procedure Act Cap 71, Section 33 of the Judicature Act and Order 52 rules 1,2 & 3 of the Civil Procedure Rules (CPR) for orders that: - i) The Respondents be held in contempt of Court Orders issued by this Court in Civil Suit No. 381 of 2011. - ii) A warrant of arrest and or committal to civil prison be issued and enforced against the respondents for

disobedience of lawful orders for a period of 6 months as the Honorable Court may deem fit in the circumstances.

- iii) An order to vacate the order of stay of execution of the decree in Civil Suit No. 381 of 2011 granted to the Respondent vide Miscellaneous Application No. 222 of 2020 due to non-compliance by the Respondents to deposit the sum of Ug shs 30,000,000 (Thirty Million Shillings) as security for due performance of the decree granting the Respondent a temporary injunction in Miscellaneous Application No. 3128 of 2023 be set aside. - iv) The costs of and incidental to this Application be provided for.

### *Background;*

2. The Respondents filed HCCS No. 81 of 2011 seeking orders among others; a permanent injunction, vacant possession, a declaration that the 2nd & 3rd plaintiffs are the lawful/rightful owners of the suit land, an order directing the Registrar of titles to lift/remove the caveat lodged by the Respondents/defendants, general damages etc.

- 3. The Applicants filed a written statement of defence with a counterclaim seeking orders among others; a declaration that the land comprised in Block 33 Plot 287 at Mutundwe does not belong to the estate of the late Nuwa Kiwanuka but the same is ancestral land, belonging to the sub clan of Ssebata in Ngeye clan, an order of cancellation of the names of the 2nd and 3rd Counter defendants from the certificate of title, a declaration that the sale of the suit land by the 1st counter defendant/respondent to the 2nd and 3rd counter defendant was illegal and hence they are not bonafide purchasers for value and a permanent injunction. - 4. Court on the 23rd day of January 2020 entered judgement with the declarations that the sale of the suit land comprised in Block 33 Plot 287 to the 2nd and 3rd plaintiffs was illegal, that Robert Muwazi and Nayiga Sylvia were not bonafide purchasers for the value and also issued a permanent injunction against them. - 5. The respondents applied and were granted an order of stay of execution with a condition of depositing Ug shs 30,000,000 as security for due performance of the decree. - 6. The respondents have since taken possession and embarked on further developing the suit land and the applicants contend that

the Respondents actions are in contempt of court orders.

### *Applicants' Evidence;*

- 7. The grounds of the application are contained in the affidavit in support of the application deposed by **HASSAN KIBIRIGE** and are briefly that: - i) That judgement was delivered on 23rd January 2020 against the Respondents at a time when the 2nd respondent was in possession of the suit land. - ii) That in around October 2020, the applicants took possession of the suit land and started collecting rent from the tenants on the suit land. - iii) The 2nd Respondent's name was cancelled from the certificate of title in respect of the suit land and plots 993 & 994 were amalgamated back to the original Plot No. 287 in the names of Nuwa Kiwanuka. - iv) That the Respondent filed a notice of appeal and applied for an order of stay of execution which was granted on 15th January and they were ordered to deposit Ug shs 30,000,000 as security for due performance of the decree.

- v) That upon obtaining the said order the Respondents evicted the Applicants from the suit land, regained possession of the suit land and commenced collecting rent from the tenants of the suit land. - vi) That Lady Justice Alexandra Nkonge Rugadya in her clarification ruling dated 10th January 2022 directed the Respondents to pay security for due performance within 30 days from the date of the ruling. - vii) That I was advised by my then lawyers of M/s Lukwago & Co Advocates that the objective of the order of stay of execution was to maintain the status quo on the suit land as it was when judgement was delivered on 23rd January 2020 until the time when the appeal is determined. - viii) That when this Court issued the order for stay of execution on 15th January 2021, the status of the suit land was 32 permanent rental structures and 2 acres were vacant. The Respondents have constructed more structures and currently they are 39 in total.

- ix) The Respondents on the 19th of February 2024, in contempt of the orders brought a grader onto the suit land and graded the part that is vacant altering the status quo.] - x) That I believe that the Respondents acts are a ploy to defeat the interests of Ssebata sub clan in the suit land before the appeal is heard and determined. - xi) That unless the Respondents are arrested and the orders of this Honorable Court enforced or made to be observed, the respondents will continue to ignore the same. - xii) That I was informed by my lawyers of M/s Nexus Solicitors and Advocates that they checked the Court file of HCCS No. 381 of 2011 and did not find proof of payment of the security for due performance. - xiii) That I pray that this Honorable Court vacates the order of stay of execution due to noncompliance by the Respondents to deposit security for due performance of the decree within the stipulated time.

## *Respondent's evidence;*

- 8. The application is opposed to by an affidavit in reply deposed by **ROBERT MUWAZI** and briefly states as below; - *i)* That judgement was entered against the respondents nullifying the sale of the suit property by the 1st Respondent to the 2nd respondent who filed an appeal seeking to set aside the said orders. - ii) The Respondents applied to stay execution vide MA No. 222 of 2020 which was granted conditionally as the Respondents had to deposit a sum of Ug shs 30,000,000 as security for due performance of the decree. - iii)That I proceeded and deposited a bank draft in the sum of Ug shs 30,000,000 in favour of the Registrar of this Honourable Court in compliance with the Court order. - iv) That I have not made any developments to the suit land property as alleged in the application and there is no proof that the status of the suit property has changed at all. - v) That I am in possession of the suit property and I have never evicted the applicants as alleged and the changes in the registration were done in contravention of the orders staying execution.

- vi) That the clarification ruling by the trial judge was never drawn to my attention and as seen in the orders staying execution, the order to deposit security was duly complied with. - vii) The orders of the trial judge are on appeal and the Applicants have no basis to allege that my occupation of the suit property is a ploy to defeat the interests of the Ssebatta sub clan.

#### *Representation;*

9. The Applicants was represented by Olupot Micheal of M/s Nexus Solicitors & Advocates whereas the Respondents were represented by M/s MMAKS Advocates though no one appeared in court.

The parties filed written submissions which I have considered during the determination of this Application.

#### *Issues for determination;*

10. 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 orders of this Honourable Court issued in the judgement in Civil Suit No. 381 of 2011.** - **ii) Whether the orders for stay of execution issued in Misc. Application No.222 of 2020 should be vacated.** - **iii) 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. Counsel for the Applicants in his submission states that it is the Applicants' uncontested evidence under paragraph 5, 10 and 12 that on 23rd January 2020, Hon Lady Justice Alexandra Nkonge Rugadya entered judgement against the plaintiffs/Respondents and among the orders was an order for a permanent injunction

restraining Ms. Agnes Nankya, Mr. Robert Muwazi and Ms Nayiga Sylvia, their agents and servants from any further dealing with the suit land.

16. The Respondents later applied and were granted an order for stay of execution of the orders in the judgement vide MA. No. 222 of 2020 which makes it clear that there are two existing court orders.

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

- 17. It is quite clear that parties acknowledge the existence of both orders from the judgement specifically that of a permanent injunction restraining the respondents Ms. Agnes Nankya, Mr. Robert Muwazi and Ms. Nayiga Sylvia, their agents and servants from any further dealing with the suit land and the order for stay of execution. - 18. A court order is an order that must be complied with and failure to comply constitutes a contempt of Court. (**See Re Howard Amani Little CACA No.32 of 2006**) - *III.* **Potential contemnor's failure to comply i.e. disobedience of the order.**

- 19. It is the Respondents' argument that the order for the permanent injunction cannot be the basis for this application as the execution of the same was stayed by a subsequent court order for stay of execution. - 20. Whereas it is true that the execution of the orders in the judgement was stayed, the order for stay of execution did not give the Respondents any right to continue developing and or dealing in the suit land. - 21. An order for stay of execution is interlocutory in nature, pending the determination of the appeal. Parties are not expected to tamper with the status quo of the suit property since it is likely to affect the orders to be given by the appellate Court. - 22. The purpose for an order of stay of execution is to preserve the status quo and protect the applicants' right of appeal from being rendered nugatory **(See Kyambogo University V Prof. Isaiah Omolo Ndiege CA No. 341 of 2013)** - 23. At the time of granting the order for stay of execution, the Applicants had taken possession of the suit land and collecting rent therefrom. They further state that at that time the suit land had 32 rental houses and a vacant area. That the Respondents

upon obtaining the order for stay of execution, evicted the applicants and took possession of the suit property.

- 24. They have continued to develop the suit land from 32 to 39 rental units and also cleared the rest of the vacant area to continue with further development **(See annexure "J", the grader and the vacant graded land).** The Applicants have adduced photographs marked **annexure "DD"** showing the former status quo and **annexure "I"** showing the status after granting the order for stay of execution. - 25. The Respondents' acts of further purporting to develop the suit land are not in good faith after the Court declared their transaction from which they acquired interest to have been illegal and that they were not bonafide purchasers for value without notice and granted a permanent injunction against the Respondent restraining them from further dealing with the suit land. - 26. The order for stay of execution did not oust the existence of the permanent injunction order which was in the knowledge of the Respondents nor did the order for stay of execution authorize them to go ahead and deal with the suit land as the same was

only meant to protect their interest in the land if any while they peruse the appeal.

27. It is my considered view that the Respondents' acts of further dealing with the suit land amount to contempt of Court orders in the judgement vide Civil Suit No. 381 of 2011. Therefore, this issue is resolved in the affirmative.

# **II. Whether the orders for stay of execution issued in Misc. Application No.222 of 2020 should be vacated.**

- 28. The Respondents were granted an order for stay of execution vide MA No. 222 of 2020 but the same was subject to the Respondents depositing a sum of Uganda Shilling Thirty Million (Ug Shs 30,000,000) in Court as security for due performance of the decree. - 29. Counsel for the Applicants in his submissions states that there was an error as to the grace period within which the Respondents were to deposit the said security for due performance of the decree. That it was at this point that this Honourable Court, upon application by the applicants, directed that since they had already spent a year without depositing the said sums, they had thirty (30) days to do so from the date of the clarification ruling

dated 10th January 2022 which the Respondents have not deposited to date.

- 30. Counsel for the Applicants relied on Rules 2,3 and 4 of the Judicature (Court Fees, Fines and Deposit) Rules SI 13-3 which requires a party to obtain a receipt upon making such payment which the Respondents did not adduce in evidence. - 31. Furthermore, Counsel for the Applicants relying on the authority of **Mavid Pharmacenticals Limited V Royal Group of Pakistan & anor MA No. 871 of 2020** stated that the stay of execution order was conditional and owing to the fact that the Respondents did not comply, the same ought to be vacated. - 32. In response, Counsel for the Respondent stated that the Respondent under paragraph 7 of the affidavit in reply state that they forwarded to Court Bank drafts in the sum of Ug shs 30,000,000 being the security for due performance of the decree. The letter forwarding the bank drafts is annexed to the affidavit in reply and marked "C2" and the same was duly acknowledged by Court on the 24th February 2021 thus the Applicants have no basis to contend that the Respondent did not comply with the orders of Court.

- 33. Counsel for the Respondents, relying on Rule 13 of the Judicature (Court Fees, Fines and Deposit) Rules SI 13-3 stated that it is the duty of the Registrar to cash the drafts and issue receipts to the depositors. - 34. Section 101 of the Evidence Act Cap 6 provides that the burden of proof lies on whoever desires any Court to give judgement as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist. - 35. The order staying execution (with regards to payment of security for due performance) reads as follows

**"The Applicants shall deposit a sum of Ug shs 30,000,000/= (Uganda Shillings Thirty Million only) as security for due performance of the decree."**

- 36. The Learned Judge in her clarification ruling delivered on 10th January 2022, a year later after the order was granted ordered the Respondents to deposit the said security within 30 days provided the same had not been deposited. - 37. The Respondents under paragraph 7 of the affidavit in reply states that he executed bank drafts and wrote a letter forwarding the same to the Registrar (annexures C1 & C2)

- 38. In my opinion a bank draft is not payment as the same is conditional. Regardless, the order in its wording says "deposit" not execute bank drafts. - 39. Be that as it may, the Respondents ought to have followed up with the Registrar to ensure the said transfer is effected and obtained a receipt for the same and also serve it to the opposite party unless otherwise there is no other proof of payment. Equity aids the vigilant as the maxim states. - 40. Failure to comply with the condition attached to an order of stay of execution to wit payment of security for due performance of the decree within a stipulated time, automatically vacates the order of stay of execution as the position is inthe case of Mavid Pharmacenticals Limited V Royal Group of Pakistan & anor MA No. 871 of 2020.

For the reasons a foregoing, the order for stay of execution is hereby vacated for failure to comply with the condition of paying Ug shs 30,000,000/= (Uganda Shillings Thirty Million only) as security for due performance of the decree as order by Court.

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

- 41. **Section 64 of the Civil Procedure Act SI 71-1** empowers Court to give supplementary orders to prevent the ends of justice from being defeated. - 42. The power to punish for contempt is a rare species of judicial power which by the very nature calls for its exercise with great care and caution. **(Attorney General v Male Mabirizi Kiwanuka MA No. 843 of 2021)** - 43. For the foregoing reasons, this application hereby succeeds with the following orders; - i) It is declared that the respondents were in contempt of court orders by re occupying the applicant's land. - *ii)* The respondents are directed to vacate the applicant's land within 60 days from the date of this ruling, failure of which they will be arrested and committed to civil prison. - *iii)* The respondents to pay a fine of Ughs 3,000,000 (Three Million Shillings) for contempt of court. - *iv)* Costs of the application awarded to the applicant.

**I SO ORDER.**

**…………………………..**

## **NALUZZE AISHA BATALA**

## **JUDGE**

**31st/05/2024**