Nsamba v Civil Aviation Authority (Miscellaneous Application 1443 of 2024) [2024] UGHCLD 198 (29 July 2024)

## **THE REPUBLIC OF UGANDA**

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

# **(LAND DIVISION)**

## **MISCELLANEOUS APPLICATION NO 1443 OF 2024**

## **Arising from Miscellaneous Application No.1421 of 2019**

**(All arising from Civil Suit No.471 of 2019)**

**MICHEAL NSAMBA :::::::::::::::::::::::::::::::::::: APPLICANT**

## **VERSUS**

# **CIVIL AVIATION AUTHORITY :::::::::::::::::: RESPONDENT BEFORE HON. LADY JUSTICE NALUZZE AISHA BATALA RULING**

# *Introduction;*

- 1. This is an application by Notice of Motion brought under Article 128 (2) of the Constitution as amended, Section 98, S.64 (c) and (e) of the Civil Procedure Act, Section 33 of the Judicature Act and O.52 r 1, 2 & 3 of the Civil Procedure Rules for orders that; - a) A declaration that the Respondent's acts of construction and erection of a wall fence onto the

suit land comprised in Busiro Block 449 Plot 9 Land at Kasenyi- Bendegere, Wakiso District is in contempt of the Court Order issued by court on the 28th day of October, 2019.

- b) An order directing the Respondents purge the contempt committed by halting any further construction on the land and further demolish the wall fence erected on to the suit land. - c) An order that the Respondents be fined and/ or pay to the Applicant a sum of Uganda Shillings Two Hundred Million only (200,000,000/=) for contempt of a court order. - d) Punitive and exemplary damages be issued against the Respondent to a tune of Ugx 150,000,000/= (Uganda Shillings One Hundred Fifty Million Only).

# **Applicant's evidence**

2. The grounds of the Application are contained in the Application and supporting Affidavit of the Applicant which briefly are;

i) The Applicant filed HCCS No.471 of 2019 against the Respondent and Uganda Land Commission at the High Court Land Division Kampala and the said suit is pending hearing before court.

ii) That from the said suit and owing to the threat posed to the Estate land by the Respondent and Uganda Land Commission, the Applicant filed HCMA No.1421 of 2019 (Nsamba Micheal Vs Civil Aviation Authority and Uganda Land Commission) seeking for an order of a temporary injunction.

iii) The Application was granted on the 28th day of October 2019 by the then Registrar of this court Her Worship Nabakooza Flavia Nsubuga for orders restraining the Respondent and Uganda Land Commission, their workmen, agents and servants or anyone claiming under them from fencing off or otherwise dealing with the suit land comprised in Busiro Block 449 Plot 9, Land at Kasenyi- Bendegere, Waksio District in any manner that alters the status quo at the time of filing the Application.

iv) That the injunction further provided that the order shall remain in force until the main suit is concluded, the order was signed and sealed by court on the 18th January 2022.

v) The Applicant further states that on the 14th April, 2023, court dismissed the suit for want of prosecution but the same was later reinstated on the 10th of November 2023 and is coming up for hearing on the 10th of June, 2024

vi) That after the reinstatement of the suit and the attendant orders, the Applicant on the 28th Day of March 2024 saw vehicles deploying soldiers on the suit land and when he acquired from the drivers of the vehicles and from O. C Kasenyi Police Station, he was told that the soldiers were being deployed on the land upon the instructions of Civil Aviation Authority.

vii) That the Applicant on the 2nd day of April 2024 through his lawyers did write to the Respondent warning it to desist from continuing to violate the order. viii) That the Respondent through its lawyers did respond not denying the on-going construction works

but instead claimed that there was no order subsisting stopping them from constructing the wall.

ix) That the Respondent has despite having both express and implied knowledge to the existence of a lawful court order which was issued by court against it and Uganda Land commission restraining them from dealing with the suit land in any way, it nevertheless proceeded to violate the court order by altering the status quo, by deploying the UPDF Engineering on the suit land and also contracted the said UPDF Brigade to construct and /or put up a wall fence on the suit land , which they are indeed constructing thereon.

x) The land was at the time of issuing the said order and for over the years remained vacant and undeveloped but only occupied and utilized by the Applicant and several licensees to whom he had granted the permission to use the land before he filled the main suit and before the granting of the injunction by court.

xi) That the acts of the Respondent constitute contempt of a court order, altering the status quo and alienation of the Applicant's land which may render the

Judgement of court in case the same is in favor of the Applicant and / or useless.

# *Respondent's Evidence;*

- 3. The Respondent filed its Affidavit in Reply which was sworn by Hajji Bbaale Rashid, the Respondent's Ag Senior Administration and Estates Officer in which he stated; - i) That on 17th September 2019, the Applicant filed HCMA No.1421 of 2019 to maintain the status quo of the land as at that time. - ii) That in September 2019, the Respondent was in the process of fencing off the suit land and the injunction sought by the Applicant was very specific as it sought to restrain the Respondent from fencing off the suit land or otherwise dealing with the suit land in a manner that alters its status quo as at the time of filing of Miscellaneous Application No.1421 of 2019. - iii)That the Order of Temporary Injunction issued by this Honorable Court on 28th October 2019 was also very specific and the status quo was ordered to be maintained.

- iv) That the order of Temporary Injunction issued by this Honorable Court on 28th October 2019 was also very specific and the status quo was ordered to be maintained. - v) That the Temporary injunction order restrained the Respondent from fencing off the suit land or otherwise dealing with it in a manner that alters its status quo as at the time of filing of Miscellaneous Application No.1421 of 2019. - vi) That the Respondent religiously complied with the said Temporary Injunction by not constructing the wall fence until the 18th day of April 2023 when the main suit HCCS No.471 of 2019 was dismissed by this Honorable Court under Order 17 Rule 4 of the Civil Procedure Rules. - vii) That the dismissal of the main suit on 18th April 2023 had the effect of vacating the Temporary Injunction that had been issued by court on 28th October 2019. - viii) That the construction of the boundary wall fence was undertaken between the period of 18th April 2023 when the main suit was dismissed and 10th November 2023 when the case was reinstated.

- ix)That by the time the case was reinstated on 10th November 2023, the status quo which the Temporary Injunction had sought to maintain had since changed as the boundary wall fence had been constructed. - x) That the change of the status quo of the land during the period when the suit had been dismissed rendered the Temporary Injunction redundant and overtaken by events. - xi)That orders of a temporary Injunction are issued to maintain a well-defined status quo, the status quo as the filing of Miscellaneous Application No.1421 of 2019 is no longer existent, and that the temporary injunction of October 2019 cannot be used to maintained a different quo that is prevailing as at the time of reinstatement of the suit. - xii) That when the Applicant filed Miscellaneous Application No.791 of 2023 for reinstatement of the suit, he did not pray for reinstatement of the Temporary Injunction and no such order was issued by the Court. - xiii) That the Respondent is not in violation of any Court Order and the contents of the Paragraphs in the Affidavit in Support are all denied for being misconceived and false.

xiv) That in specific reply to the contents of Paragraph 13 of the Affidavit in Support of the Application which is denied, an order of a Temporary Injunction which has been overtaken by events is not reinstated automatically upon reinstatement of the main suit.

# *Representation;*

- 4. The applicant was represented by Kabega Musa of Kabega, Bogezi and Bukenya Advocates together with Mpagi Sunday of M/S Mpagi Sunday & Co. Advocates whereas the respondent was represented by Peter Mukidi Walubiri of KBW Advocates. - 5. Respondents have filed written submissions that have been relied on in the making of this Ruling. However, the Applicants did not file submissions in relation to this matter. - 6. Counsel for the Respondent submitted that on the 10th of June, 2024, the Trial Judge directed that the Applicant files and serves his Affidavit in Rejoinder and Written Submissions by the 28th day of June 2024 . However, the Applicant opted not to file both the Affidavit in Rejoinder and Written Submissions. That as a result, the instant submissions of the Respondents are filed strictly on the basis of the pleadings on record but not in reply to any Submissions of the Applicant.

7. However, this court will proceed to determine this matter on its merits.

## *Issue for determination by court;*

**1. Whether the Respondents are in contempt of a court order?**

## *Resolution and determination of the issue;*

- 8. Counsel for the Respondent submitted that the position of the law is that for contempt of Court to be found, the following principles have to be established; - **a) Existence of a lawful Order.** - **b) Potential Contemnor's knowledge of the Order and**

**c) Potential Contemnor's failure to comply, that is disobedience of the order.**

- 9. Counsel submitted that the instant Application doesn't meet the test. He argued the grounds as follows; - i. Existence of a lawful Order

- 10. Counsel submitted that there is no doubt that on 18th April 2023, HCCS No.471 of 2019 was dismissed under Order 17 Rule 4 of the Civil Procedure Rules and that the dismissal of the suit lapses the Temporary Injunction that had been issued on 28th October 2019. - 11. That all the acts complained of by the Applicant which include taking possession of the suit land by the Applicant and construction of a boundary wall fence thereon were all undertaken during the period when the suit had been dismissed and before it was reinstated. Counsel further submitted that there was no lawful Order of Injunction at the time the Applicant took possession of the suit property and constructed thereon a boundary wall. - 12. That the injunction had been issued to restrain the Respondent from fencing off the suit land but by the time the suit was reinstated, the land was already fenced. The injunction was further issued to restrain the Respondent from dealing with the suit land in a manner that alters its status quo as at the time of filing HCMA No.142 of 2019. - 13. HCMA No.142 of 2019 was filed on 17th September 2019. the status quo of the suit land as at 17th September 2019

was changed during the period between 18th April 2023 and 10th November 2023 when the matter had been dismissed.

#### ii. Potential Contemnor's knowledge of the Order

- 14. Counsel submitted that the general principle is that a person cannot be held in contempt without knowledge of a court order. That the Respondent is not aware of any court Order that restrained the Applicant from dealing with the suit land during the period when the suit had been dismissed. - 15. That at the time, the injunction had lapsed as a result of a dismissal of the main suit. That when the Applicant filed HCMA No.791 of 2023 for reinstatement of the suit, he did not seek any prayers for reinstatement of the Injunction and the court did not issue any such orders. - 16. That all the activities that took place on the suit land when the main suit had been dismissed were lawful since there was no court order in existence to stop the same. - 17. Therefore, these cannot be reversed through demolition of the constructed wall fence. - iii. Potential Contemnor's failure to comply

- 18. The Respondent's Counsel submitted that it is on record that the Respondent duly complied with the injunction from the time it was issued on 28th October 2019 until the 18th day of April, 2023 when the main suit was dismissed. The Activities complained of by the Applicant were all undertaken after the dismissal and before the reinstatement of the suit when there was no order of injunction force and these activities cannot reverse since they were lawfully undertaken. - 19. That the Respondent is not in contempt of the court Order issued on the 28th day of October 2019.

#### **Analysis of raised Issue**

- 20. In the case of **Uganda Super League v Attorney General Constitutional Application No.73 of 2013 Justice Kiryabwire** citing the Black's law Dictionary 7th Edition defined Contempt of courts as; "Conduct that defies the Authority or dignity of court. - 21. The power to punish for contempt of court is a special jurisdiction which is inherent in all courts for the protection of the public interest in the proper administration of justice, as observed by Lord **Atkin in**

# **Andre Paul Terence Ambar Appeal No. 46 of 1935 –vthe Attorney General of Trinidad and Tobago (Trinidad and Tobago) [19361 1 All ER 704, [19361 AC 322.**

- 22. Before any action can be found to amount to contempt of court, the following principles have to be established: - - **a) Existence of a lawful order.** - **b) Potential contemnor's knowledge of the order.** - **c) Potential contemnor's failure to comply, that is, disobedience of the order.** - 23. To be found in contempt, it must be proven that the party accused: (i) knew the order existed, (ii) had the ability to comply with the order but violated it knowingly, and (ii) lacks just cause or excuse for the violation. Civil contempt is a strict liability violation; all that must be proved is that the order was served on the respondent, and that a prohibited action (or a failure to carry out an order) occurred. - 24. In the instant matter, the Applicant averred that the court order for a Temporary injunction was issued by the then Registrar on the 28th day of October 2019. that this

order was to remain in force until the determination the main suit.

- 25. That in the course of managing the Applicant's main suit, court dismissed the same on the 14th April, 2023 but later reinstated the same on the 10th November 2023. that the Respondent had despite the court order issued, continued to alter the status quo. - 26. The Respondent contended that in September 2019, the Applicant filed HCMA no.1421 of 2019 to maintain the status quo of the land as at the time. - 27. That in September 2019, the Respondent was in the process of fencing off the suit land and the injunction sought by the Applicant was very specific as it sought to restrain the Respondent from fencing off the suit land or dealing the suit land in any manner. - 28. That the Respondent complied with the order until the 18th day of April, 2023 when the main suit HCCS No.471 of 2019 was dismissed. - 29. In order to determine whether there was an existing court order, court has to determine in this particular

matter, whether dismissal of a suit affects the Applications arising from therein.

- 30. Where a suit has been dismissed, then it follows that all the Applications arising therein are dismissed as well. The remedy available is to apply for reinstatement of the suit and the Applications arising from within the suit. - 31. The Respondent's argument is that there was no lawful order of the injunction at the time Respondent built a fence. The Respondent argued that the status quo was changed in the period when the main suit H. C. C. S No.471 of 2019 had been dismissed and by the time the suit was reinstated, the fence had already been built. - 32. And that further, when the Applicant prayed for reinstatement, he did not seek any prayers for reinstatement of the Injunction and the court did not issue any such orders. - 33. I am in agreement with the Respondent's arguments. The period between 18th April 2023 to 10th November, 2023, when the main suit had been dismissed, there was no subsisting order of a temporary injunction. The Applicant was meant to pray for reinstatement of the Temporary

Injunction during his Application for Reinstatement of the main suit.

- 34. Therefore, during the period when the Respondent changed the status quo and constructed a fence on the suit land, there was no subsisting order of injunction and to date, there stands no order for the same. - 35. Considering that this court has found that there was no existing order of a Temporary Injunction during the time when the fence was erected, this court rules that there was no contempt of Court as there was no existing order disobeyed and therefore this Application fails. - 36. This Application is hereby dismissed with costs.

### **I SO ORDER**.

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#### **NALUZZE AISHA BATALA**

**JUDGE**

**29th/07/2024**