Nyakato v Lin Jeng Liang akak Lin Jeff and 5 Others (Miscellaneous Application 317 of 2022) [2023] UGHCFD 15 (8 May 2023)

Full Case Text

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

### **FAMILY DIVISION**

## **MISCELLANEOUS APPLICATION NO. 317 OF 2022**

(Arising from Misc. Application NO. 382 OF 2017)

#### (ARISING FROM CIVIL SUIT NO. 91 OF 2008)

SARAH NYAKATO...................................

#### **VERSUS**

- 1. LIN JENG LIANG aka LIN JEFF - 2. EDDY CHOU - 3. MUSTAFA N. KADALA - 4. ABBARCI PETROLEUM - 5. CENTENARY RURAL DEVELOPMENT BANK LTD - 6. COMMISSIONER LAND REGISTRATION..................... RESPONDENTS

# BEFORE: HON LADY JUSTICE JEANNE RWAKAKOOKO

#### **RULING**

### Introduction

$\mathcal{L} = \mathcal{L}$

This application was brought by way of notice of motion under section 98 of the Civil Procedure Act, Section 33 of the Judicature Act and Order 52 Rules 1 & 3 of the Civil Procedure Rules for orders that: -

- 1. An arrest warrant doth issue against the Respondents and their agents for violation and contempt of a court order issued in Misc. Application No. 382 of 2017 by Hon Justice Godfrey Namundi - 2. The Respondents pay a fine of UGX 200,000,000/- to the court and compensation of UGX 200,000,000/ $=$ to the Applicant. - 3. The Respondents stop any further violations of the court order and further contempt of the court orders - 4. The Respondents purge that contempt by re-instating and /or correcting the white page. - 5. Costs of this application be provided for.

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# Background

The Applicant instituted Civil Suit No. 91 of 2008 against the 1st and 2nd Respondents for revocation of letters of administration among other orders. While the same was pending hearing, the Applicant applied for a temporary injunction vide Misc. Application No. 382 of 2017 which was granted in her favor stopping the Respondents from any further dealings and or transactions on land comprised in LRV 281 Folio 10 Block 244 Plot 83 Kibuga until the final determination of Civil Suit No. 91 of 2008.

However, it is alleged that the Respondents through their agents disregarded the court order and went ahead to sell, transfer, mortgage and make entries on the land title in favor of third parties.

### Representation

At the hearing, Omongole Richard appeared for the Applicant who was in court. Barbara Akullo appeared for the 1st and 2nd Respondents who were absent. Ceasor Mateka appeared for the 5th Respondent. There was no representative of the 5th Respondent. The 3rd Respondent and their legal counsel were absent. Court gave directions as to filing of written submissions. Only filed written submissions will be considered in determination of this matter.

### Issue for determination

Whether the Respondents are in contempt of the court orders issued vide Misc. Application No. 382 of 2017.

### Resolution

Black's Law Dictionary 11th Edition at page 390 defines Contempt of court as, "Any act which is calculated to embarrass, hinder, or obstruct court in administration of justice, or which is calculated to lessen its authority or its dignity."

## Betty Kizito V Dickson Nsubuga & Ors Civil Application NO. 25 & 26 of 2021

cited the case of Sitenda Sebalu vs. The Secretary General of the East African Community, Ref. No. B of 2072 (East African Court of Justice) set out the preconditions that must be satisfied before a court can hold a respondent in contempt. The court stated as follows: "To prove contempt, the complainant must prove the four elements of contempt, namely: (i) The existence of a lawful order (ii) knowledge of the order (iii) The contemnor's ability to comply (iv) The potential contemnor's failure to comply."

In the present application, the Applicant averred that the court order vides Misc. Application No. 382 of 2017 was issued in the presence of the 1st, 2nd and 3rd

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Respondents and their advocates and that in total disregard of the court orders, the 1st, 2nd, 3rd and 6th Respondents transferred the suit land into the names of the 4th Respondent. Furthermore, that the 4th Respondent was aware that the suit property was subject to court proceedings and was aware of the existence of the court order.

The Applicant alleged that the 5th Respondent went ahead to fraudulently accept to register a mortgage on the suit land in total disregard of the court order. That the 6th Respondent was also aware that there were disputes on the suit land but went ahead to transfer the same into the 4th Respondent's name.

The 1st and 2nd Respondents contended that they were never notified of the delivery of the ruling in Misc. Application No. 382/2017 and that no order was extracted and served on the 1st and 2nd Respondents or their lawyers.

The 3rd Respondent also contended that he had no knowledge of the existence of Misc. Application No. 382/2017 and/or CS No. 91/2017 until he was served with the present application but he acknowledged that he sold the suit land to the 4th Respondent. The 3rd Respondent contended that his lawyers were never present during the delivery of the ruling in MA 382/2017 and that he had never given instructions to any lawyers pertaining to MA $382/2017$ .

The 3rd Respondent further alleged that the court order in MA 382/2017 has never been registered on the Certificate of Title for the suit land.

The 5th Respondent contended that the contents of the present application were not in the knowledge of the 5th Respondent nor was it a party in MA 382/2017 and was never aware of the court proceedings. In further contention, the 5th Respondent stated that the transactions between the 4th and 5th Respondents were devoid of any fraud and were done in total compliance of the Mortgage Act. The 5th Respondent stated that they had been added wrongly to this application and the same be dismissed with costs to the 5th Respondent.

In such matters of contempt, it is imperative to show that a lawful order existed, parties had knowledge of the order, the contemnor's ability to comply and the contemnor's failure to comply. Counsel for the 5th Respondent relied on the case of Stanbic Bank (U) Ltd & Anor V URA MA No. 42/2010 while counsel for the 1st and 2nd Respondents relied on **Jack Nsangiranabo V Kaka Bagyenda & Anor MA 671/2019** for the same position. Counsel for the Applicant cited a plethora of cases on the requirements to prove contempt of court and I will not reproduce the same here as I entirely agree with their submissions on the subject.

The ruling granting the temporary injunction was delivered on 17th December 2019 and a copy of the same was attached and marked 'D' which is proof that a lawful order was in existence. The transfer form between the 3rd Respondent and the 4th Respondent is also attached dated $13/02/2020$ and marked 'E'. The

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Certificate of Title for the suit land is attached to this application marked 'J'. However, the court order was never registered on the same.

The 3rd, 4th, 5th and 6th Respondents were not parties to the proceedings vide MA 382 of 2017. One of the requirements for a court to determine whether indeed a party was/is in contempt of a court order is knowledge of the court order. Counsel for the $1^{st}$ and $2^{nd}$ Respondents relied on the case of **Jack Nsangiranabo (supra)** for the position that a person cannot be held in contempt without knowledge of the court order. I agree with the submissions of the 1st and $2nd$ Respondents in that regard.

In the premise that the 3rd, 4th, 5th and 6th Respondents were not parties to MA $382/2017$ and the same court order was never registered on the certificate of title, then it is impractical that they had knowledge of the temporary injunction orders. Apart from the Applicant's assertions that the 3rd, 4th, 5th and 6th Respondents had knowledge of the court order, this court has not found any cogent evidence to support this assertion. If the Respondents had no knowledge of the same then there was no way that they could have either complied or failed to comply to something that was unknown to them.

The other requirement to prove contempt of court is the contempor's ability to comply with the court order as stated in the Betty Kizito Case (supra). In regards to the 1st and 2nd Respondents, they passed on the interest to the 3rd Respondents in 2014 when the 3rd Respondent was registered on the title on $20/11/2014.$

The court order was granted on $17/12/2019$ almost 5 years after the interest had passed on to the 3rd Respondent. Even the transfer that is being challenged by the Applicant was between the $3^{rd}$ and $4^{th}$ Respondents and the $1^{st}$ and $2^{nd}$ Respondents weren't party to the transfer. In that regard the 1st and 2nd Respondents couldn't be in contempt If they no-longer had any propriety interest in the suit land. Practically they could not comply where they no longer had interest or propriety ownership.

Considering that this court has found no cogent evidence to show that the 3rd, 4th, 5th and 6th Respondents had knowledge of the existence of the court order vide MA 382/2017 and that the $1^{st}$ and $2^{nd}$ Respondents had no practical ability to comply with the order, all the requirements to prove contempt of court have not been discharged. Therefore, this application fails

In the premise, this court finds that there was no contempt of the court order vide Misc. Application No. 382 of 2017. I accordingly dismiss this application.

In these premises, the Applicant's application fails and I hereby order as follows:

1. This application is hereby dismissed.

and

2. Costs of this application follow the outcome in the main suit.

It is so ordered.

$\boldsymbol{\varepsilon}$

DAARO

Jeanne Rwakakooko **JUDGE** 25/04/2023

Ruling delivered on this $9th$ day of $MAV$ , 2023

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