Nazimuli v Kasujja & 2 Others (Miscellaneous Application 68 of 2024) [2023] UGHCFD 195 (27 August 2023)

# **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT KAMPALA (FAMILY DIVISION)**

### **MISCELLANEOUS APPLICATION NO. 68 OF 2024**

### **(ARISING FROM HCT-00-FD-AC-0668-2022)**

# **NAZIMULI JESCA :::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

#### **1. ROSCO KASUJJA**

# **2. SERWANGA ERIZIMANSI**

# **3. SEBUNYA PATRICK ::::::::::::::::::::::::::::::::::::: RESPONDENTS RULING BEFORE: HON. LADY JUSTICE CELIA NAGAWA**

# **1.0 Introduction.**

- 1.1 The Applicant brought this Application under **Section 98 of the Civil Procedure Act, Cap. 282 and Order 52 of the Civil Procedure Rules SI 71-1** seeking the following orders. - 1. A declaration that the 1st, 2nd and 3rd Respondents, their agents, servants and others claiming under them are in contempt of the Letters of Administration issued by this Honourable Court vide HCT-00-FD-AC-O668-2022. - 2. An order that the 1st, 2nd and 3rd Respondents be condemned to pay UGX 50,000,000/= each to atone for their contempt of an order of the court. - 3. In the alternative to the foregoing an order that the 1st, 2nd and 3rd Respondents be committed to civil detention as punishment for their contempt of court. - 4. Any other relief that this Honourable Court deems fit and proper in the circumstances.


- 5. An order that the taxed costs in this Application be borne by the Respondents. - 1.2 The grounds on which this Application is based are contained in the affidavit sworn by the applicant Nazimuli Jesca, but briefly they are that; - a) On 10th June, 2022 this Honourable Court issued Letters of administration vide Administration Cause No. 0668 of 2022 for the estate of the late Nsaale Yeremosh formally of Kiryowa Kiryamuli, Gombe Sub-County, Kyadondo County, Wakiso District. - b) The said Letters of Administration were granted to the Applicant (widow/surviving spouse) of the deceased to administer the estate of the late Nsaale Yeremosh and to make a full and true inventory of the said properties and credits and exhibit the same to the court. - c) All the Respondents are fully aware/knowledgeable of the existence/subsistence of the Letters of Administration issued by this Honourable Court since the same was served physically and notified to them in a family meeting. - d) In total disregard, and disrespect of the Letters of Administration of this Honourable Court, the Respondents, their agents, servants, employees and others claiming under them have continued to illegally deal with the entire estate property of the late Nsaale Yeremosh including selling and or transferring the same into their names without the administrator. - e) In total disregard, and disrespect of the Letters of Administration of this Honourable Court, the Respondents, their agents, servants, employees and others claiming under


them have specifically continued to conduct illegal acts of threatening to evict the Applicant.

- f) The Respondents have transferred the property of the deceased's estate into their names, and sold part of the estate property to their gain not considering other beneficiaries. - g) The Respondents have been in wrongful control of the entire estate property to their gain not considering any other beneficiaries. - h) The Respondents have instituted several suits to frustrate the Applicant and prevent her from administering the estate. - i) The Applicant opened up a criminal complaint against the Respondents leading to their prosecution for forgery, uttering false documents and intermeddling with the estate of the deceased pending hearing at the Chief Magistrates Court of Mpigi at Mpigi. - j) The Respondents have since made it hard and or impossible for the Applicant to enforce and perform her duties as the Administratrix of the estate of her late husband well knowing the existence of valid Letters of Administration granted by this Honourable Court. - k) It is proper and equitable that the Respondents be found to be in Contempt of the orders of this Honourable Court. - 1.3 The Respondents were served and they filed an affidavit in opposing this Application on 10th June 2024. The grounds opposing are as follows; - a) The Application is an abuse of court process given that the Letters of Administration for which the Applicant contends the Respondents to be in breach are subject to a suit wherein the Respondents seek revocation of the same.


- b) The Respondents are biological children and beneficiaries of the estate of the late Nsale Yeremosh who died testate on 12th December, 2020. - c) Without the knowledge and consent of the Respondents, the Applicant concealed the existence of the Respondents and applied for Letters of Administration vide Administration Cause No. 0668 of 2022. - d) In a bid to safeguard the estate, the Respondents filed Civil Suit No. 402 of 2022 challenging the grant of Letters of Administration issued to Applicant in respect of the estate of the Late Nsale Yeremosh. - e) The Respondents also applied for a temporary injunction in this Honourable Court vide Miscellaneous Application No. 833 of 2022 to restrain and prohibit the Applicant, her agents, servants, workmen, or any person deriving authority or instructions from her selling, transferring and or distributing the estate of the late Nsaale Yeremosh and the same was granted by Hon. Lady Justice E. K. Kabanda. - f) Unfortunately, and without prejudice to the foregoing in March 2024, Civil Suit No. 402 of 2022 abated and the temporary injunction order in Miscellaneous Application No. 833 of 2022 lapsed. - g) The Respondents filed a fresh suit No. 132 of 2024 and also respectively filed Misc. Application No. 500 of 2024 for an injunction restraining the Applicant from dealing with the estate of the late Late Yereosh Nsale until the final determination of the main suit. - h) Miscellaneous Application No. 500 of 2024 is still pending determination before this Honourable Court.


- i) The Applicant is aware of the pending civil case against her by the Respondents and as such is estopped from claiming contempt on her part until Civil Suit No. 132 of 2024 is determined. - j) The Respondents were not a party to the proceeding in the Administration Cause No. 0668 of 2022 nor did they participate nor were they aware of the Letters of Administration granted to the Applicant, them having not participated in the process and/or meetings that led to the granting of the same to the Applicant. - k) The Applicant, having full knowledge of the Respondent's beneficial interest in the estate of the late Nsale Yeremosh has continued to persecute the Respondents having them criminally charged for allegedly intermeddling and uttering false documents to fraudulently acquire Letters of Administration in the estate. - l) This Application if granted shall render Civil Suit No. 132 of 2024 Nugatory. - m) This Application should therefore be dismissed with costs.

# **2.0 Representation.**

- 2.1 The Applicant was represented by Counsel Kato Tumusiime of M/S Baturaki & Company Advocates, Kampala. - 2.2 The Respondents were represented by Counsel Isiko Arthur of M/S Kian Associated Advocates, Wandegeya, Kampala.

# **3.0 Issue to be determined by this Court.**

**Whether the Respondents are in Contempt of the Letters of Administration issued by this Honourable Court vide Administration Cause No. O668 of 2022.**


# **4.0 Submissions by Counsel.**

4.1 I have perused and analysed the Parties' written submissions. I appreciate the submissions and arguments in the endeavour to resolve this application. Further, I evaluated and examined the application and the documentary evidence, as required by law and all have been considered in the determination of this Application.

# **5.0 Preliminary Objection.**

- 5.1 **The Respondents raised a preliminary objection stating that this Application is an abuse of the Court process and as such it ought to be dismissed.** - 5.2 The Respondent submitted that the present application is a perversion of the court process given that the said Letters of Administration which the Applicant claims to have been disobeyed by the Respondents is the subject of Civil Suit No. 132 of 2024 for revocation and Miscellaneous Application No. 500 of 2024 for an injunction which is still pending before this Honourable Court. The Respondent defined abuse of court using the definition adopted by the court in **Attorney General & Another Versus James Mark Kamoga SCCA No. 8 of 2004,** where the court stated that abuse of court process occurs when the party employs court process for some unlawful object, not the purpose which it is intended by law to effect. - 5.3 Under the law, abuse of the Court process involves the use of the process for an improper purpose; **Uganda Land Commission Versus James Kamoga & Anor, S. C. C. No. 08 of 2004.** The common feature of abuse of Court process is the improper use of the judicial process by a party in litigation, the most common one being a multiplicity of actions on the same issues between the same parties and instituting different actions between the same parties in


different Courts; **Ajaokuta Steel Co. Ltd Vs. Greenbay Investment & Securities Ltd & Ors (2019) legalpedia (SC) 11661.**

- 5.4 The fact that the Letters of Administration, which the Applicant claims have been disobeyed by the Respondents, are the subject of Civil Suit No. 132 of 2024 for revocation and Miscellaneous Application No. 500 of 2024 for an injunction, which are still pending before this Honourable Court, does not amount to an abuse of the court process. It is not unusual or improper for related legal proceedings to be ongoing concurrently. The existence of these pending matters does not negate the validity or enforceability of the Letters of Administration, nor does it imply that the current application is an improper use of judicial resources. Instead, it is a legitimate exercise of the Applicant's legal rights to seek enforcement or compliance with existing court orders. The Preliminary objection is hereby denied. - 5.5 The Applicant also raised a preliminary objection to the effect that the Affidavit in Reply filed by the Applicant was filed out of time without leave of court. - 5.6 This court is enjoined to administer Justice with undue regard to technicalities according to **Article 126 (2) (e) of the Constitution of the Republic of Uganda.** The court will therefore entertain the matter on its merits. - **6.0 Determination of the Application.** - 6.1 The term "contempt of court" has been defined in the case of **Re Ivan Samuel Ssebadduka, Contempt proceedings arising from Presidential Election Petition No.1 of 2020,** which quoted with approval the case of **Johnson vs. Grant SC 1923 SC 789 at 79O** in which Lord President (Clyde) inter alia, explained it to mean:

 *"..... An offence which consists in interfering with the administration of the law; in impeding and perverting the course of justice. It is not the dignity of court which is offended - a petty and misleading view of the issues involved- it is the fundamental supremacy of the law which is challenged."*

6.1.1. The Court went on to quote the case of **Morris vs. Crown Office [1970] l ALL ER 1079 at 1O87** where Salmon LJ stated that:

> *"The sole purpose of proceedings for contempt is to give our courts the power to effectively to protect the rights of the public by ensuring that the administration of justice shall not be obstructed or prevented. This power to commit for what is inappropriately called "contempt of court' is sui generis and has from time immemorial reposed in the judge for the protection of the public."*

- *6.1.2.* Halsbury's Laws of England (Volume 9 (1) Reissue) 1 classified contempt into two; criminal contempt and contempt in procedure, otherwise known as civil contempt. - *6.1.3.* In this instant application*,* I will restrict myself to civil contempt which consists of disobedience to the judgment, orders or other process of court and involving a private injury." - *6.1.4.* Section 98 of the Civil Procedure Act, Cap. 71 further enjoins this Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of court. - *6.1.5.* The power of court to determine matters of contempt is provided for under Article 28 (12) of the Constitution of the Republic of Uganda. The reason why courts will punish for contempt of court is to safeguard the rule of law which is fundamental in the administration of justice.


- *6.2.* In determination of this application, the pre-conditions set out on contempt must be satisfied before a court can hold a respondents in contempt. - 6.3. The conditions necessary to prove contempt of court were laid out in the case of **Hon. Sitenda Sebalu Versus The Secretary General of the East African Community Reference No. 8 of 2012 (East African Court of Justice)** to wit;- - 1. the existence of a lawful order; - 2. the potential contemnor's knowledge of the order; - 3. the potential contemnor's ability to comply i.e. disobedience of the Order.

## **7.0. The existence of a Lawful Order.**

- 7.1. **Section 2 of Civil Procedure Act, Cap. 282** defines an order to mean "order" means the formal expression of any decision of a civil court which is not a decree. - 7.1.1. A grant of Letters of Probate and Administration is a court order as a result of grantees committing and undertaking to execute the estate and file a full and true inventory of the properties and credits and exhibit the same in court within six (6) months from the date of the grant, and to render true account of the property and credits within one year or such other time as court shall appoint. - 7.1.2. The Applicant was issued Letters of Administration vide Administration Cause No.0668 of 2022 for the Estate of the late Nsaale Yeremosh formally of Kiryowa Kiryamuli, Gombe sub-county Kyandondo county Wakiso District on 10th June, 2022. She avers that the Letters of Administration were granted to her in her capacity as the widow of the deceased to administer the estate of the late Nsaale Yeremosh and to make a full and true inventory of the said properties and credits and exhibit the same to the court.


- 7.1.3. The applicant further averred that all the Respondents are fully aware/knowledgeable of the existence/subsistence of the Letters of Administration issued by this Honourable Court since the same was served physically and notified to them in a family meeting. - 7.1.4. Letters of Administration are issued by a court granting a person (or persons) the authority to manage and distribute the estate of someone who has died intestate. These letters give the appointed individual, known as the administrator, the legal right to act on behalf of the deceased in handling their affairs. - 7.1.5. Letters of Administration issued by a court are binding court orders that must be adhered to by all relevant parties. Once granted, these letters confer legal authority upon the appointed administrator to manage and distribute the deceased person's estate. This order must be respected and followed, as it carries the full weight of the court's authority. - 7.1.6. In this regard, the court finds that a lawful order existed.

## 7.2. **The potential contemnor's knowledge of the order;**

- 7.2.1. The Respondents, in their affidavit in Reply admitted to knowledge of the existence of the court order as they specifically state that "Without the knowledge and consent of the Respondents, the Applicant concealed the existence of the Respondents and applied for Letters of Administration vide Administration Cause No. 0668 of 2022." - 7.2.2. The Respondents' knowledge of the court order can further be established in the fact that they proceeded to file Civil Suit No. 402 of 2022 in a bid to prevent the Applicant from acting on the powers given to her by the court as an Administrator of the estate of the deceased. The Applicant also averred that the Respondents were


served with a copy of the Letters of Administration and that they attended a meeting where they were informed of the same.

- 7.3. **The potential contemnor's ability to comply i.e. disobedience of the Order.** - 7.3.1. The Ability to comply is directly related to knowledge of the existence of the court order. The knowledge precedes the action of obedience. You cannot obey an order unless you are informed of that order. Upon receipt of knowledge of the order, any action contrary to the order is a deliberate act done in contempt of that order. It has been proved above that the Respondents knew the court order. Their actions in filing a civil suit solidify the fact of that knowledge. - 7.3.2. It was the submission of the Applicant that the Respondents, having full knowledge of the court order, threatened to evict her from the suit property claiming to be implementing the wishes of the deceased according to an alleged Will. She averred that she was denied access to the family plantation and gardens in Gomba, Wakiso District and the rest of the estate property. The Applicant also stated that the Respondents proceeded to divide the entire estate to her exclusion. She averred that they also started to collect income from the estate property changing some of it into their names. The Applicant further contended that they have sold off some of the property, and ordered the tenants on new payment terms and directions despite knowledge of the Letters of Administration. - 7.3.3. The seriousness surrounding contempt of court orders was considered in **Hadkinson Versus Hadkinson [1952] All ER, Romer L. J relied on the case of Church Versus Cremer (1 Coop Temp Cott 342)** the court stated that "A party who knows of an order


whether null or valid, regular or irregular, cannot be permitted to disobey it . . . as long as it existed".

- 7.3.4. Disagreement with a court order does not justify disobeying it. Letters of Administration are legally binding. Regardless of personal opinions or objections, compliance with such orders is mandatory. Failure to adhere to a court order is tantamount to contempt of court. If there are valid concerns or disagreements with a court order, the appropriate course of action is to seek legal recourse through the proper legal channels such as a suit for revocation of Letters of Administration. As long as the Letters of Administration are still in force and have not been revoked, the Letters of Administration must be adhered to as an order of the Court. - 7.4. According to the court record in Administration Cause No. 0668 of 2022 the Petitioner named the Serwanga Elizimansi (2nd Respondent) and Ssebunya Patrick (3rd Respondent) as children of the deceased. They cannot therefore claim that they were never named as children of the deceased in the application process and therefore unaware of the said Letters of Administration by the mere fact that they were never mentioned as children of the deceased. - 7.5. I find that the respondents is in contempt and therefore punishable. The respondents are hereby committed to civil prison for a period of three (3) months immediately.

## **8. Conclusion.**

- 8.1. In the final result, the court allows this Application ordering as follows. - 1. The 1st, 2nd and 3rd Respondents are hereby found to be in contempt of the Letters of Administration issued by this Honourable Court vide Administration Cause No.0668 of 2022.


- 2. The Respondents are committed to civil prison for 3 months as punishment for their contempt of court. - 3. Costs of this application are awarded to the applicant.

I so Order.

*Dated, Signed and delivered electronically this 27th day of August, 2024***.**

**....................................... CELIA NAGAWA JUDGE**