Mulondo v Kiweewa & Another (Miscellaneous Application 1142 of 2024) [2024] UGHCLD 176 (24 June 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [LAND DIVISION] **MISCELLANEOUS APPLICATION NO. 1142 OF 2024 (ARISING FROM MISCELLANEOUS APPLICATION NO. 651 OF** $2024)$ (ARISING FROM MISCELLANEOUS APPLICATION NO. 649 OF $2024)$ (ALL ARISING FROM CIVIL SUIT NO. 229 OF 2024)

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MULONDO NASUR ::::::::::::::::::::::::::::::::::::

## **VERSUS**

#### 1. KIWEEWA SHABAN

2. NAMARA AISHA ::::::::::::::::::::::::::::::::::::

# **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: - - The Respondents be cited for contempt of a Court Order $i)$ of interim injunction issued on $2^{nd}$ April 2024 by this Honourable Court maintaining the status quo of the land comprised in Kyadondo Block 262 Plot 1192 Abaas

Hamleyey-

Zone Salama Makindye Ssabagabo, Kampala District until the hearing of the main application.

- ii) The Respondents be committed to civil prison for violation and demeaning of Court orders. - iii) The Respondents be ordered to pay a fine of Ug shs 10,000,000 (Ten Million Shillings) each to this Honourable Court for their Contemptuous actions demeaning lawful orders. - *iv)* Costs of this Application be borne by the Respondents. *Background;* - 2. The Applicant filed HCCS No. 229 of 2024 suing the Respondents for trespass. The Applicant also filed MA No. 649 of 2024 for a temporary injunction and MA No. 651 of 2024 for an interim injunction order. - 3. On the 2nd day of April 2024, the Applicant and the 1st Respondent consented to the grant of the interim order to maintain the status quo of the suit land for which the Respondents were in possession. - 4. The Applicant contends that the Respondents have since continued to deal with the suit land to wit; continued

construction contrary to the Court Order and in contempt of the same hence this Application.

#### *Applicants' Evidence;*

- 5. The grounds of the application are contained in the affidavit in support of the application deposed by **MULONDO NASUR** and are briefly that: - i) That on the 2nd day of April 2024, by consent of the parties, this Honourable Court issued an interim injunctive order to maintain the status quo of the suit land which I served to the area police and local authorities for purposes of enforcement. - ii) That whereas the Respondents' lawyer and his clients were in the know of the said Court order, I served it onto them and contrary to the same the Respondents continued with the construction on the suit land. - iii) That the 1st Respondent claimed to have bought sand, bricks and other building material that are likely to be eroded away so he instead used them for building contrary to the Court Order. - iv) That through my lawyers, the Respondents were issued with a warning letter with pictures attached for 3rd and 6th

April, 2024 showing the construction which the Respondents' lawyers just trashed instead of advising the Respondents to comply with the Court order.

- v) That on the 1st day of May 2024, I was informed of the ongoing construction and in the company of the OC CID D/SGT Emojor Charles and ASP Agaruhaho Anxious of Lumala Police post Makindye, we proceeded to the suit land and indeed found ongoing construction including erecting a metallic gate yet the said developments were not there before. - vi) That on approaching the 1st Respondent, he arrogantly instructed the workers to continue in total contravention and contempt of the orders of this Honourable Court.

# *Respondent's evidence;*

- 6. The application is opposed to by an affidavit in reply deposed by **NAMARA AISHA,** the 2nd Respondent and briefly states as below; - *i)* That the 2nd Respondent shall raise a preliminary point of law that the application does not disclose a cause of action against myself and thus incompetent against me.

- *ii)* That there was never service of court process for HCMA No. 651 of 2024 on me and neither was I ever presented with an opportunity to participate and or attend any session of the said proceedings yet the application was against myself and the 1st Respondent jointly and severally. - *iii)* That I have been advised by my lawyers that the said consent judgement was between the Applicant and the 1st Respondent and I was entitled to a ruling in the said application independent of the said consent. - *iv)* That I have neither consented or conceded to the grant of the said application nor received a ruling arising therefrom and the said consent order was made in personam. - *v)* That the contents of paragraph 5 of the affidavit in support are denied in total and the applicant shall be put to strict proof of service of the said order to my person since I was unrepresented whether by an advocate or by a duly appointed attorney.

- *vi)* That I have never personally initiated or continued any construction on the said land whether for temporary or permanent structures. - *vii)* I have never received any warning letter and I had at the time not instructed any lawyer to receive or respond to correspondences for and on my behalf and that it is in the interest of justice that the instant application be dismissed with costs against the applicant.

# **Rejoinder**

- i) The application discloses a cause of action against the 2nd Respondent, the respondents are spouses residing in the same house neighboring the suit land and are in duo possession and continuous usage and development of the suit land contrary to the injunctive orders. - ii) The 2nd Respondent was duly served with Court process (summons in the main suit) on the 12th day of March 2024 and she directed the process server to serve the same on to her lawyers of M/s Nakachwa Matovu & Company Advocates who received the same.

- iii)The same lawyers were duly served with the application for a temporary injunction and that of an interim injunction and they received without protest. On the 19th day of May 2024, the 2nd respondent was found on the suit land, she attended all the proceedings and informed Court that she has no interest in the suit land. She knew all the proceedings and opted not to respond or file any pleading in response. - iv) The workers found on the suit land claim that the 1st and 2nd Respondents instructed them to continue constructing thus adamantly deciding not to respect Court orders.

### *Representation;*

- 7. The Applicant was represented by Mr. Allan Yiga of M/s Align Associated Advocates whereas the Respondents were represented by Ms. Kwiri Anna holding brief for Mr. Ayebazibwe Isaac of M/s Nakachwa, Matovu & Co Advocates. The Applicant and the 2nd Respondent filed written submissions which I have considered during the determination of this Application. - 8. The 1st Respondent did not respond to this application despite being represented by the same Lawyers.

# *Issues for determination;*

- 9. Both parties raised issues for resolution in their written submission however, for proper determination of the issue in controversy, this Court shall consider the following issues for the determination of this application. - **i) Whether the Respondents are in contempt of orders of this Honourable Court issued in MA No. 651 of 2024.** - **ii) Whether the Applicant is entitled to the remedies sought.**

### *Resolution and determination of the issues;*

- 11. Before I delve into the merits of this application, I wish to first handle the preliminary points of law as raised by Counsel for the 2nd Respondent. - 12. Counsel for the 2nd Respondent raised two preliminary points of law to wit;

That the Application doesn't disclose a cause of action against the 2nd Respondent.

13. That the 2nd Respondent was not privy to the consent order from which the instant application arises and the said order was never served onto her. He relied on the provisions of

Order. 7 rule 11 (a) of the Civil Procedure Rules and the authorities of **Kapeeka Coffee Works Ltd v NPART CACA No. 3 of 2000 and Tororo Cement Co. Ltd V Frokina International ltd CA No. 2 of 2001.**

- 14. Counsel for the Applicant in response stated that the 2nd Respondent was duly served but she opted not to attend Court, file a defence to the claims in the main suit and the applications. Further that even when Court visited Locus in quo, the respondent attended and participated. That the respondents are spouses residing in the same household which fact has not been disputed by the 2nd Respondent. - 15. In order to establish a cause of action, one must consider whether the party has a right, the right has been violated and the defendant (in this case the 2nd Respondent) is liable as per the celebrated decision of **Auto Garage v Motokov No. 3 [1971] EA 514.** - 16. On perusing the Application along with the annexures, and the pleadings of the Applications and the main suit from which this application emanates, there is a clear indication that the Applicant has an interest in the suit land on which

they the Respondents trespassed and he has since filed Civil Suit No. 229 of 2024.

- 17. The 2nd Respondent did not file a defence to the Applicant's claims nor did she respond to the applications filed subsequently for the grant of an interim and temporary injunction order. - 18. The fact that the 2nd Respondent did not file a defence to the Applicant's claims does not simply mean that the Applicant has no cause of action against her. The Applicant has adduced evidence to prove that the 2nd Respondent was served and she directed the process server to effect service on her lawyers of M/s Nakachwa Matovu & Co. Advocates the same lawyers arguing this application. - 19. The said lawyers only filed a defence for the 1st Respondent and not the 2nd respondent despite having been sued together and likewise in this application the said lawyers only filed an affidavit in reply for the 2nd Respondent and not for the 1st Respondent. - 20. The fact that the 2nd Respondent did not dispute the fact that the 1st Respondent is her spouse and they reside in the same household, and both parties use the services of the same advocates, it can logically be concluded that the 2nd Respondent knew what was going on but she opted not to file a defence or reply to the civil suit and the applications from which this current application emanates and thus cannot claim that the Applicant has no cause of action against her.

- 21. This preliminary point hereby stands over ruled. - 22. This looks like a game coached by the Respondents' lawyers to defeat the applicant's chances of obtaining justice in this Court because the said Lawyers clearly state how they represent both respondents.

#### **2 nd preliminary point**

23. Counsel for the 2nd Respondent further submitted that the affidavit in support contains falsehoods particularly paragraphs 6, **annexure F, G** (Affidavits of service, that Counsel for the Respondent first refused service on grounds that he had no instructions to handle a new matter **(F)** and for **(G)** that service was received for and on behalf of both Respondents but M/s Nakachwa, Matovu & Co. Advocates only filed a defence for the 1st Respondent) , **H1,H2 & H3** (the photographs bear no background and authenticity in

the body of the affidavit) **C** (response to the threat of these proceedings) that Counsel for the Respondents was only acting on behalf of the 1st Respondent and lastly annexure **E** with a ball point pen ink inscription but the inscriber is not named nor is it signed and thus not authentic.

- 24. Counsel relied on the authority **of Bataitana V Kananura CA No. 47 of 1976(1977)** where it was held that where there are falsehoods in an affidavit, the entire affidavit has to be disregarded and an application rejected. - 25. Counsel for the Applicant in response stated that the Respondents' lawyers were never specific on whose behalf they were receiving service of Court process. - 26. The rules governing affidavit evidence are clearly spelt out under Order 19 of the Civil Procedure Rules and the Court in **Male Mabirizi v Attorney General MA No. 7 of 2018** stated that an affidavit must not be argumentative, prolix and marred with hearsay or falsehoods. - 27. It's this Court's observation that the lawyers of M/s Nakachwa, Matovu & Co Advocates contended that they only received Court process to represent the 1st Respondent only which means that they have instructions to handle Civil Suit

No. 229 of 2024 which entails all applications emanating therefrom the instant one inclusive. However, they didn't not file a reply for him despite being party to the instant application but rather filed one for the 2nd Respondent for whom they claimed not to have instructions to represent.

- 28. It is trite law that a party that doesn't file a defence to a civil claim does not have audience before Court. *(See; Attorney General & Anor v Westmont Land (Asia)BHD & 2 Others).* Under those circumstances the 2nd Respondent would not have audience before this Honourable Court. - 29. The Consent Judgement emanated from an application in which the 2nd Respondent was party despite not participating in the same. All evidence of service has not been rebutted in anyway and the same Lawyers who claimed not to have instructions to represent the 2nd respondents are the same lawyers arguing this application on her behalf which is rather perplexing. - 30. Furthermore, Counsel for the 2nd Respondent seeks to challenge evidence of photographs in his submission on grounds of authenticity alluding to the fact that the same might be old, however did not adduce any photos to the

contrary to prove the status quo as is on the land at the hearing of this application. Thus, I find this preliminary point to also lack merit and the same is overruled.

# **Whether the Respondents are in contempt of orders of this Honourable Court issued in MA No. 651 of 2024.**

- 31. 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.** - 32. 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).** - 33. **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.

34. 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**

- 35. Counsel for the Applicant in his submission states that on the 2nd day of April 2024, by consent of both parties and in the presence of the 2nd Respondent, this Honourable Court issued an interim injunction. - 36. Counsel for the Respondents in reply states that the consent order subject of the instant proceedings is unclear and ambiguous in as far as it does not with reasonable specificity describe the status quo that it sought to maintain. - 37. He cited the authority of Richard Odoi Adome v Uganda Electricity Generation Co. Ltd MA No. 1088 of 2022 wherein Court held that orders of Court must be strictly construed and any ambiguities in the interpretation of the order claimed

to have been flouted should be resolved in favour of the person accused of contempt.

38. That the said Consent order fell short of describing the status quo as at the date, the learned Assistant Registrar entered, it was missing a material detail thus the same cannot be the basis of proper contempt of Court proceedings.

39. The order in question reads;

*"By consent of both Counsel, the interim application is hereby granted for both parties to maintain the status quo where the Respondents are in possession of land comprised in Kyadondo Block 262 Plot 1192 Abbas Zone LC1 Salaam Makindye, Ssabagabo Kampala until the hearing of the main application.''*

40. While granting such orders, Court considers the status quo prevailing at the time of filing the application. **(Kyagulanyi Ssentamu Robert v The Commissioner General URA MA No. 150 of 2021).** At the time of granting the interim injunction order, the Respondents were in possession and Court visited Locus in quo and the same position was confirmed and the same was clearly spelt out in the order therefore, Counsel for the Respondent cannot claim

that the order did not specify the status quo sought to maintain.

- 41. The purpose of granting an interim injunction is to maintain the status quo as is at the time of granting the said order. The said order did not authorize the Respondents to proceed with any construction on the suit land, the same was halted by the said order pending conclusion of the application for a temporary injunction. - 42. Upon Court granting an interim or temporary injunction order, all dealings in the suit land are automatically halted until the determination of a substantive application or suit whichever the case may be.

Thus, it is safe to conclude that there exists an interim order vide MA No. 651 of 2024.

### **ii) Potential contemnors' knowledge of the order.**

43. Counsel for the 2nd Respondent contended that the 2nd Respondent was not party to the consent order thus she is not privy to it. Further that she was never served with the said order and that owing to the fact that the matter proceeded exparte against her she deserved a ruling in that regard.

- 44. As already noted, the pleadings in all the matters from which this application emanates were duly served onto the 2nd Respondent's lawyers and they opted not to file neither a defence nor any replies to the same, but they miraculous have instructions to represent the 2nd Respondent in this contempt proceeding. - 45. The Applicant in Paragraph 6 of the Affidavit in rejoinder states that the respondents are spouses residing in the same household. Further still, the Respondents are both represented by the same Lawyers of M/s Nakachwa, Matovu & Co. Advocates. - 46. With all the above, it is safe to conclude that both respondents had knowledge of the existence of the order. The 2nd Respondent's argument of not being party to the consent cannot stand since she had constructive notice of the existence of the order through their lawyers and through her spouse.

# **iii) Potential contemnor's failure to comply i.e. disobedience of the order.**

47. The suit between the parties is one of trespass. That despite the existence of the interim order, the Respondents

continued with construction at the detriment of the Applicant's interest in the suit land.

- 48. The interim injunction order granted by Court on the 2nd day of April 2024, was by consent of the parties and the least they could do was respect and abide by the same. - 49. 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)*

- 50. The Respondents' acts of further purporting to develop the suit land are not in good faith, coached at defeating the Applicant's claim in the suit land and amount to contempt of Court. - 51. It is my considered view that the Respondents' acts of further dealing with the suit land amount to contempt of the consent interim order in MA No. 651 of 2024. Therefore, this issue is resolved in the affirmative. - **iii) Whether the Applicants are entitled to the remedies sought.** - 52. **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.

53. 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)**

- 54. For the foregoing reasons, this application hereby succeeds with the following orders; - i) It is declared that the Respondents are in contempt of the interim order vide Misc. App No. 651 of 2024. - ii) The Respondents are directed to immediately halt any dealing in the suit land pending the conclusion of Misc. App No. 649 of 2024 failure of which they will be arrested and committed to civil prison. - iii) The Respondents shall pay a fine of Ug shs 2,000,000 (Uganda shillings two million) for contempt of court. - iv) I make no orders as to costs of this application.

## **I SO ORDER.**

#### **NALUZZE AISHA BATALA**

#### **JUDGE**

### **24th/06/2024**

20