Mugasa v Kyamanywa (Miscellaneous Application No. 141 of 2019) [2021] UGHCCD 180 (6 December 2021)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT MASINDI MISCELLANEOUS APPLICATION NO.141 OF 2019** (Arising from Misc. Cause No.036 of 2016 & Civil Suit No.055 of 2015)

**SWAIB MUGASA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

# **VERSUS**

#### **NOUMAN MUGASA KYAMANWA ::::::::::::::::::::::::::::::::: RESPONDENT**

#### **RULING**

## **BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA**

#### **Introduction**

[1] This application is brought under **O.4 r.2 (3) and 9 CPR** seeking an order that the Respondent be arrested and detained in civil prison for six months for disobeying the order of this court. The application is premised on the ground that:

> *"The Respondent has wilfully and contemptuously disobeyed the order of temporary injunction issued by this court on the 23rd day of September 2016."*

- [2] This ground and further grounds are contained in the affidavit of **Swaib Mugasa**, the Applicant in support of the application wherein he alleged inter alia that; - a) The Respondent has contemptuously started sub-dividing the suit land at **Goroora, Plot 179, Block (Road) 3** and erected illegal mark stones and alienating parts of it to 3rd parties in disobedience of the order of the court. - b) That he is chasing the children of the late **Hajji Rashid Mugasa** from the said pieces of land, a conduct that amounts to contempt of court and disobedience of the said order.

- c) That one of such persons to whom he has alienated the suit land to is **Adnan Kiiza,** who has brought surveyors to survey the land. - d) That unless sanctions for disobedience of injunctive orders are invoked, he will suffer irreparably and the court orders will continue to be disrespected thereby making seeking redress from courts a mockery. - [3] In his affidavit in reply, the Respondent denied the applicant's allegations and averred that as per his written statement of defence (WSD) (vide **C. S No. 055 of 2015**) on record, he has never had any interest nor does he occupy any land described as **Kiriankabe farm** nor land with a developed house at **Butiaba, Bulisa**. - [4] Secondly, that whereas it is true that there is a temporary injunction pursuant to land comprised in **Plot 18, Block 9, Vol.1373 Folio 16 at Kiriankabe farm** among others, the complained of activities are in regard to **Mr. Adnan Kiiza** and not himself and they refer to land comprised in **Plot 179, Goroora, Block (Road) 3**, Masindi District which land is different and /or distinct from the suit land herein described.

# **Background of the application**

- [5] The Applicant/plaintiff filed **H. C. Civil Suit No.55 of 2015** against the Respondent/defendant seeking inter alia the following declarations and orders; - a) A declaration that the plaintiff, defendant and other beneficiaries of the estate of the late **Hajji Rashid Mugasa** are entitled to equal shares of land at **Nyakibete, Mirya measuring approximately 15.9 hectares and comprised in Plot 18, Block 9, Volume 1373, Folio 16, 4** square miles farm land called **Kariankabe farm at Kinumi village,** Kigulya division, Mirya sub county, Masindi and land developed with a house (named Anwar stores).

[6] Subsequently, the Applicant/plaintiff filed **H. C. M. A No. 36 of 2016** seeking a temporary injunction which was granted on the 3rd of Sept/2016 in the following terms;

> *"A temporary injunction to be issued restraining the Respondent, his servants, agents, workmen from subdividing, erecting barbed wire fences or fencing the suit land comprised in plot 18, block 9, volume 1373, Folio 16, farmland at Kiryankambi (sic) and land at Butiaba in anyway, building house, selling, damaging, alienating, transferring titles or in any other way interfering with the suit land, threatening violence against the applicants and their family members until the main suit is heard and determined."*

- [7] On the 22/11/2019, the Applicant filed the present application seeking for the arrest and detention of the Respondent in civil prison for six months, for disobedience of the referred to injunctive order dated 23/9/2016, on the grounds that the Respondent has contemptuously started sub dividing the suit land at **Goroora, Plot 179, Block (Road) 3** and erecting illegal mark stones and alienating parts of it to 3rd parties who include **Adnan Kiiza**. Lastly, that the Respondent is chasing the children of the late **Hajji Rashid Mugasa** from the said suit land. - [8] The Applicant was represented by **Counsel Ngaruye Ruhindi Boniface** of **M/s Nagaruye Ruhindi, Spencer & Co Advocates, Mbarara** while the Respondent was represented by **Counsel Hamza Kyamanywa** of **Nyanzi Kiboneka and Mbabazi Advocates, Kampala**. Both counsel filed their respective written submissions as permitted by court. - [9] The application was before the Assistant Registrar of this court. In his submissions, counsel for the Respondent raised a preliminary objection to the effect that the honourable Registrar had no jurisdiction to

entertain this matter for contempt of court because **H. C. M. A NO.36 of 2016** from which this instant application arose was heard and determined by **His Lordship Justice Rugadya Atwooki** on the 23rd day of December, 2016 wherein a temporary injunction was granted against the Respondent. That therefore, the aforementioned application for a temporary injunction having been entertained by the trial judge, it therefore follows that the consequent contempt application ought to have been placed and/or heard by the Judge; **FLORENCE DAWARU VS ANGUMALE ALBINO & ANOR H. C. M. A NO.96 OF 2016(ARUA**)

[10] The Assistant Registrar ruled that upon perusal of the alleged disobeyed order, he found that it was issued by the Judge and therefore, the registrar is not clothed with jurisdiction to handle a contempt application in a matter handled by the Judge. The file was accordingly referred to this court by the Registrar under **O.50 r.7 CPR** for determination.

# **Determination**

- [11] Counsel for the Respondent submitted that the alleged contemptuous conduct of the Respondent was the subdividing of the suit land at **Guroora, Plot 179, Block (Road) 3**, alienating parts of it to 3rd parties who include **Adnan Kiiza** and the chasing of the children of the late **Hajji Rashid Mugasa** from the suit land. He argued that **Goroora, Plot 179, Block (Road) 3** has never been the subject of the suit between the parties and there is no evidence presented by the applicant that the said land was curved out and/or muted off the suit property. That instead, the said land is being possessed by **Adnan Kiiza** and not the Respondent. - [12] Counsel for the Applicant on the other hand had submitted that the conduct of the Respondent and his agents is grossly contemptuous for the Respondent was aware of the order (since it was made in his

presence) but he contemptuously started subdividing the suit land at **Goroora, Plot 179, Block (Road) 3,** erected illegal mark stones and alienated parts of it to 3rd parties. Then lastly, that the Respondent is chasing the children of the late **Hajji Rashid Mugasa,** the deceased from the suit land.

[13] **Black's law Dictionary (7th Edition) at p.313** defines contempt of court as;

> *"disregard of or disobedience to, the rules or orders of a legislative or judicial body…"*

In **JENNISON VS BAKER [1972] 1 ALL ER 997, Salmon L. J** observed thus the purpose of contempt of court;

> *"…prohibits acts and words tending to obstruct the administration of justice"*

In **HADKINSON VS HADKINSON [1952] ALL ER 567, Romer L. J** while relying on the case of **CHUCK VS CREMER** (1 Coup Temp Cott 342) observed that,

> *"A party who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it. That the course of a party knowing of an order, which was null or irregular and who might be affected by it, was plain. He should apply to that court that it might be discharged. As long as it existed it must not be disobeyed…"*

[14] In the instant case, there is no doubt that there is the existence of a lawful order. It is not contested that the injunctive order vide **H. C. M. A NO. 36.2016** is a lawful order. There is also no doubt that the Respondent/potential contemnor had knowledge of the order because it was made and delivered during the presence of his advocate and himself. What is in contention is the alleged conduct of disobeying the order.

- [15] It is trite law that contempt of court must be proved to the standard which is higher than proof on a balance of probabilities; **NAKANDI VS MUSA KATONGOLE H. C. M. A NO.252/2018** and **GATHARIA K. M & 2 ORS VS BAHARINI FARM LTD [1985] KLR 227.** - [16] In the instant case, the applicant claim that the Respondent contemptuously started subdividing the suit land at **Goroora, Plot 179, Block (Road) 3,** erected illegal mark stones and alienated parts of it to 3 rd parties who include **Adnan Kiiza.** The order allegedly disobeyed however does not refer to any land comprised at **Goroora, Plot 179, Block (Road) 3.** The Applicant did not adduce any affidavit evidence connecting **Goroora, Plot 179** to the suit land **Plot 18, Block 9 farmland** at **Kiriankabe** or **Butiaba** or that it was originally part of the suit land and it was curved out of it. As a result, there is no connection between the alleged interfered with land at **Guroora, plot 179** and the lawful court order so as to hold the Respondent in contempt. The same apply to the activities of **Adnan Kiiza.** - [17] As regards the alleged children of the late **Hajji Rashid Mugasa** being chased from the suit land, the children are named as **Lukia Mugasa, Hadad Mugasa, Aniwar Barongo, Swaib Mugasa, Sam Mugasa, Nizare Mugasa, Kulusum Mugasa,** none of them deponed an affidavit to support the Applicant's claim and or detail by pointing at the Respondent as chasing them from the suit land. - [18] As a result, I find this application lacking any merit. It is accordingly dismissed with costs to the Respondent.

**Dated at Masindi this 6th day of December,2021.**

**Byaruhanga Jesse Rugyema JUDGE.**