Musa and 5 Others v Fatumah (Miscellaneous Application 250 of 2022) [2023] UGHCFD 124 (27 March 2023)

## **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA**

## **FAMILY DIVISION**

#### **MISCELLANEOUS APPLICATION NO. 0250 OF 2022**

**(Arising out of Miscellaneous Application No. 676 of 2021)**

**(All Arising out of Civil Suit No. 0359 of 2019)**

- **1. ABDALLA MUSA** - **2. MOHAMMED MUSA** - **3. JIMIA MUSA** - **4. SAFINA MUSA** - **5. SWABIR MUSA ABDALLAH** - **6. HADIJJA KADALA:::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS (Administrators of the estate of the late Musa Abdallah)**

# **VERSUS**

**FATUMAH MUSA::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS**

## **Before: Justice Ketrah Kitariisibwa Katunguka.**

## **Ruling**

## **Introduction:**

1. This Application is brought by way of Notice of Motion for grant of orders that; the Respondent is in contempt of the court order in Miscellaneous Application No. 676 of 2021; the Respondent be detained in Civil Prison for six months and be ordered to pay a fine for the said acts of contempt of the subject court order; and for costs to be provided for.

- 2. The Application is supported by the affidavit deposed by the applicant Abdallah Musa and briefly that; the Respondent filed a suit against the Applicants vide HCCS No. 359 of 2019 which is pending before this Honourable court for determination of whether the suit land situate at Katwe Nawanku Zone LC1 Makindye Division constitutes a gift inter vivos; on the 14th day of February, 2022 this court consolidated Misc. Application No. 676 of 2021 and Misc. No.671 of 2020 and issued a temporary injunction to maintain the status quo at the suit land by both parties until the final disposal of the main suit; - 3. The Respondent is in contempt of orders of this honourable as he has paved the open space and placed a shipping container therein; because of the Respondent's high handed behaviour and arrogance she ought to be committed to Civil prison and condemned to punitive and exemplary damages to the tune of 100,000,000/= (Uganda Shillings One Hundred Million only) respectively; it is in the interest of justice that the Application be allowed;

The Application is supported by a copy of the temporary injunction order and some photographs of a shipping container;

4. The Application is opposed by Fatuma Musa the Respondent who filed an affidavit in reply and contended that she is neither in breach of the court order nor interfering with the status quo of the suit land by paving the open space thereof; the shipping container belongs to the landlord not her; she has not done anything outside the ordinary use of the Kibanja to sustain her living; she is not in contempt of the court order therefore the application should not be granted;

5. In rejoinder the Applicant maintains that the injunctive order binds the Respondent and all her successors in title; without prejudice to the foregoing in both the Plaint and Pleadings for injunctive orders the respondent never disclosed the third party interests and the same is an afterthought intended to defeat the spirit of the injunctive orders issued by this court; the complained acts of contempt was commenced after the issuance of the temporary injunction by this honourable court on the 22nd February, 2022; it is in the interest of substantive justice that this Application is allowed;

#### **Representation;**

6. When the matter came up on 25th November, 2022 only the 3rd Applicant was in court; counsel were absent; the record however shows that the applicants are represented by M/s Ajungule & Co Advocates while the affidavit in reply was filed by M/s Buwule Mayiga advocates; since the parties had filed written submissions court directed that the ruling would be delivered by email; counsel were to file their email addresses; the email addresses were never filed;

#### **The case.**

7. The respondents filed Civil suit HCCS No. 359 of 2019 against the applicant for orders that the property located at Katwe Nawanku Zone LC1 Makindye Division constitutes a gift inter vivos; a temporary injunction was issued on 14th February 2022 maintaining status quo till determination of the civil suit; the respondent has violated the injunction by paving the suit land and placing there a container therefor she is in contempt of court;she should be committed to civil prison and ordered to pay UGX 100,000,000/= the respondent denies; the applicant is one of the administrators of the estate of the late Musa Abdalla and

he brings this application in that capacity on his behalf and on behalf of Muhammed Musa, Jimia Musa, Safina Musa, Swabir Musa Abdallah and Hadijja Kadala;

- 8. I have considered the application and the affidavit in support; there is no proof that Abdalla Musa the 1st applicant is bringing the application on behalf of the rest of the applicants; - 9. The position of the law is that an application brought on behalf of another without authority is defective; this position has been considered in a number of cases;(see **Baligasiima v Kiiza & Ors (Miscellaneous Application 1495 of 2016) [2019] UGHCLD 17 (23 January 2019); Binaisa Nakalema & 3 Others versus Mucunguzi Myers; MA No. 460 of 2013**;and **Vincent Kafeero & 11 Ors versus AG; Misc Application No. 048 of 2012, Mukuye & 106 Ors versus Madhvani Group Ltd**; **Misc. Application No. 0821 of 2013** from **Civil Suit No 0651/2012, and Makerere University versus St. Mark Education Institute & Ors; HC Civil Suit No. 378 of 1993;** - 10. I note that the affidavit is sworn without authority of the deponents on whose behalf, it's purported to be made; Order 1 rule 12(2) and 13 of the Civil Procedure Rules and Order 3 rule 2(a) of the Civil Procedure Rules requires a person swearing on behalf of the others, to have their authority in writing which must be attached as evidence and filed on the court record; the gist of the requirement is that court must be convinced that the suit before it is authorised to avoid vexatious claims brought on behalf of fictitious persons; or persons who have no claim and have no intention of suing any one;

- 11.**Section 98 of the Civil Procedure Act** provides that court may give orders in the interest of justice; applications seeking orders for contempt of court ought only be brought to court with great caution because when proved the consequences are serious; when administrators bring an application they ought to move as one or with authority of all of them because any costs incurred affect the rest of the beneficiaries's entitlement to the estate; - 12. The 1st applicant has not proved that he is authorised to bring the application leave alone that he represents the rest of the administrators. In the premises the application is based on a defective affidavit therefore it has no basis.

The application is dismissed with costs.

Ketrah Kitariisibwa Katunguka Judge

27/03/2023

Delivered by email to:ajungulecoadvocates@gmail.com,buma@buwuleandmayiga.com