Makumbi Dani v The Board of Governors Mackay College School and Another (Miscellaneous Application 5 of 2024) [2025] UGHCLD 79 (5 May 2025)

#### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

#### (LAND DIVISION)

**MISCELLEANOUS APPLICATION NO. 0008 OF 2024**

(ARISING FROM MISC. APP NO. 1835 OF 2022)

(ARISING FROM CIVIL SUIT NO.937 OF 2022)

MAKUMBI DANI::::::::::::::::::::::::::::::::::::

#### **VERSUS**

THE BOARD OF GOVERNORS:::::::::::::::::::::::::::::1<sup>ST</sup> RESPONDENT (MACKAY COLLEGE SCHOOL) DOUBLE Q LIMITED:::::::::::::::::::::::::::::::::::: BEFORE HON LADY JUSTICE ELIZABETH JANE ALIVIDZA

#### **RULING**

#### REPRESENTATION

The Applicant was represented by $M/s$ Luziga Kavuma & Co. Advocates.

The $1^{st}$ Respondent was represented jointly by M/s Arcadia Advocates and M/s Kaaya, Birikujja Advocates and legal consultants.

The $2^{nd}$ Respondent was represented by M/s Kitatta Adikin & Co. Advocates.

## **INTRODUCTION**

The Applicant brought this Application under Section 33 of the Judicature Act, Section 98 of the Civil Procedure Act and order 52 rule 1 and 3 of the Civil Procedure Rules seeking orders that;

- 1. That the Respondent be held in contempt of a Temporary injunction order issued by this Court on the 14th of Jwne 2023 and be committed to civil prison. - 2. That further development on the suit property comprised in Block 23 plot 64 Land at Nabisasiro- Busega, Kampala District be halted till determination of the main suit. - 3. An order that the Respondents be punished for the contempt of Court Order by payment of a Court fine of UGX 200,000,000. - 4. An order that the Respondents pay a sum of UGX 500,000,000 to the Applicant as Exemplary/punitive damages. - 5. Provisions be made for costs of the application

The grounds supporting this Application are contained in the notice of motion and the Applicalt's Affidavit in support

The 1"t Respondent filed an Af{idavit in reply deponed by Wambi James the representative of the 1"t Respondent. The 2"d respondent filed an affidavit in reply deponed by Kimbowa Charles Bongoley.

This Court issued directives for parties to file written submissions, only the Applicant filed, I have taken the same into consideration in determining this Application.

# ISSUES

The Applicant raised the following issues;

- 1. Whether the Respondents are in contempt of Court order issued vide Misc. App. No.1835 of 2022? - 2. What remedies are available to the Applicant?

<sup>2</sup> a

## RESOLUTION

Issue 1; Whether the Respondents are in contempt of Court order issued uide Misc. App. No.1835 of 2022?

What is contempt of Court?

What amounts to civil contempt of Court was laid down in the case of Sempebua and others u Attorneu General t20191 I EA, the Supreme Court in referring to the Black's Law Dictionary, lOth Edition where it defined civil contempt as failure to obey a court order that was issued for another parties benefit.

(MISCELLANEOUS APPLICATION NQ.222 !F'2Q 1 9 I2O2O| UGHCCD 53 (14 Ap ril 2O2Ol ald Musisha v Ssemakadde (Miscellaneous Application 49 of 20251 l2o25l UGHCCD 27 (14 Februarv 2025)court in referring to Robert Austin Mullery v R [1957] EA noted that; Also see Kaase-Bwanqa v Makerere Universitv & 3 Others

"the purpose of the lau.t of contempt seems to be for the protection of the dignitg, integitg and authoitg of the courts. The law is in realitg in place to protect the public from ang act calculated to obstruct or interfere tuith the due course of justice, or the lawful process of the cotlrts. . . "

ln Onen Dauid & Ors Vs Otto Ocan & Ors HCMA No. O131 of 2019 before Justice Stephen Mubiru where he held that; "the contempt polter is a discretionary one. If courts were to find contempt too easilg, a court's outrage mightbe treated as simplg raising a stormin ateacup

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that mightultimatelg cheapenthe role qnd authoritg of the uery judicial power it seeks to protect. Contempt of court cannot be reduced to <sup>a</sup> mere means of enforcing judgements as applicants bg their pior application seem to belieue. Courts haue consistentlg discouraged its routine use to obtoin compliance with the court orders. The pouer should therefore be used cautiouslg and with great restraint, it is an enforcement power of last, rather than first resort."

Furthermore, the Court of Appeal in the case of Lukenqe Hakeemus. Haiati Aiin Nqmaqembe & others Court of Appeal Ciuil Aoolication No.29O of 2020 stated that civil contempt consists of the intentiona-l doing of an act which is in fact prohibited by the order. The Court held that 3 elements must be proved before a finding of civil contempt can be made namely;

- 1. Existence of a lawful order that is clear and unambiguous. - 2. Paty alleged to have breached the order must have had actual knowledge of the order. - 3. Party alleged to have breached the order must have intentionally done the act that the order prohibits and intentionally failed to do the act that the order compels.

It is trite law that the standard of proof in contempt proceedings must be higher than proof of probabilities and almost but not exactly beyond reasonable doubt. See Kemirembe v National Housinq and Construction Company Limited (Civil AB@ UGCA 278 (23 October 2023)

<sup>4</sup> ah

I shall now go head to determine whether the Applicant as proved that there was contempt of Court Orders in this case.

The Temporary injunction order dated 14th J:une 2023 is very clear. Both parties were restrained from selling, excavating, constructing and creating any third party interests on the suit land. This order is very clear and unambiguous. The status quo was to be maintained.

The fact that the Applicant should now prove is whether the Respondents breached the order had actual knowledge ofit.

The case of Hadkinson us Hadkinson (19521 All ER, Romer lJ relied on the case of Church u Cremer (1 Coop Temp Cott 342) where it was held that; "a party who knows of an order whether null or ualid, regular or irregular, cannot be permitted to disobey it as long as it existed"

Under paragraph 6 of the 1"t Respondent's Affidavit in reply, the l"t Respondent avers that he never deliberately or otherwise disobeyed the court order, that no person ever brought to its attention the order of temporar5r injunction that was issued in court.

The 2"d Respondent in his Affidavit in reply averred that he was never served with the Court order, that he could not be served with the Court order since it was not a party to the Application No.1835 of 2022. The 2"d Respondent denied having purchased the suit land from the 1"t Respondent.

A perusal of the file and ruling in MA No. 1835 of 2022 shows the following facts. It is on record that the 1"t Respondent was

represented by counsel Kaaya Daniel and Paul Kutesa of M/s Kaya, Birikujja Advocates and Legal Consultants while the 2nd Respondent was not party to the said Application.

The record showed that the l"t Respondent occasionally attended court, the l"t Respondent's Deputy H/m Karumba Kranda appeared in Court. I note that in the ruling in Misc. App No.1835 of 2022, Court noted that the ruling was delivered to the parties on 15 l5/2O23 by email.

It is clear that the 1"t Respondent had actual knowledge of Misc. App No. 1835 of 2022 having appeared in Court and represented by Counsel. The l"t Respondent was aware of the Application for temporar5r injunction that had been filed in October 2022. They even participated in the proceedings. However in February 2013, they sold the suit land to a third party despite the pending Application.

On the other hand, tl;e 2"d Respondent was not part of the Application and there is no evidence on record that he was served with the temporary injunction order or even had knowledge of the pending Application.

It has been established by the law and the decided cases that, the main purpose for issuance of a temporary injunction order is the preservation of the suit property and the maintenance of the status quo between the parties pending the disposal of the main suit.

In this case, Court granted the temporary injunction to maintain the status quo. Also the parties were restrained from selling, excavation, constructing and creating third party rights on the suit land.

This Court notes that the Applicant filed Misc. App No. 1835 of 2022 on the 28th October 2022 and judgment was delivered on the <sup>15</sup>l5l2023. It is during this time period that the 1"t Respondent sold the suit land to a 3'd party as stated under paragraph 7 of the 1"t Respondent's Affidavit in reply. The Respondent attached a copy of the sa-le agreement dated 2Oth February 2023.

In the case of Odoi Odome v Ueanda Electricity Generation Companv (Miscellaneous A plication 1088 of 20221 l2o23l UGCommC 45 (13 Januarv 2023) Justice Stephen Mubiru noted that;

"It is trite that the pou)er of punishing for contempt should be used spainglg and onlg in seious cases or where court is compelled to punishbg reason of persistent and obstinate defiance and interference of the contemnor or if the conduct utill prejudice the trial. A case is senous uhere the contemnor acts intentionallg, uith the purpose of either binging the court into scorr4 disrepute or bg interfering with the administration or course of justice or where the conduct will prejudice the tial."

It is my finding that the l"t Respondent's act of selling the suit land to a 3.d party during the hearing of the Application for temporarlr injunction was deliberate and in bad faith. The act of fencing off by building a perimeter wall amounted to interference with the status quo.

{+

However the fact that the temporar5r injunction had not been issued and the lack of proof that the 2"d Respondent was awa-re of the pending renders Application of contempt of Court order unachievable.

There has been no proof of contempt of Court. This Application is dismissed with no orders to costs.

JhJ l,Y\

Elizabet ane Alividza

Judge Sth May 2O25

Sth May 2O25

Ruling delivered on ECCMIS

Elizabeth Jane

Judge