Odung v Bwambale & Another (Miscellaneous Application 1211 of 2024) [2025] UGCommC 14 (25 February 2025)

Full Case Text

### THE REPUBLIC OF UGANDA

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

# **MISCELLANEOUS APPLICATION NO. 1211 OF 2024**

(Arising from Miscellaneous Application No. 310 Of 2023) (Arising from Miscellaneous Application No. 1413 Of 2022) (Arising from Civil Suit No. 0871 of 2022)

ODUNG GEOFFREY EYIT ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### 1. BWAMBALE DAVID

2. DR. ISABALIJA ROBERT STEPHEN:::::::::::::::::::::::::::::::::::

Before Hon. Lady Justice Patricia Kahigi Asiimwe

# **Ruling**

#### **Introduction**

- $1.$ This Application was brought by Notice of Motion under Section 33 of the Judicature Act, Section 98 of the Civil Procedure Act and Order 52 Rules (1) and (2) of the Civil Procedure Rules. The Applicant seeks declarations and orders that: - That the Respondents are in contempt of Court Orders $\overline{a}$ in Miscellaneous Application No. 310 of 2023 restraining the Respondents by themselves and/or their agents acting under them or with their authority from interfering with, dealing with or carrying out any activity or any further development on and/or with the

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Applicant's property to wit; land comprised in Kyadondo Block 195, Plot 3237 land at Kyanja as well as motor vehicle registration number UAZ 567V Hilux Model (KUN 126R-DNFMYN until the determination of the main Civil Suit No. 871 of 2022.

- The Respondents pay a total sum of UGX. 100,000,000 $b)$ as damages for contempt of the Court orders in Miscellaneous Application No. 310 of 2023. - The costs of the Application be provided for. $c)$ - The Application was supported by the affidavit of Odung Geoffrey $2.$ Eyit, the Applicant who stated that: - He filed Miscellaneous Application No. 1413 of 2022 $a)$ seeking a temporary injunction restraining the Respondents or their agents acting under them or with their authority from interfering with, dealing with or carrying out any activity or any further development on the Applicant's property to wit; land comprised in Kvadondo Block 195, Plot 3237 land at Kyanja and motor vehicle registration number UAZ 567V Hilux Model (KUN 126R-DNFMYN). - The Learned Assistant Registrar delivered a ruling in $b)$ Miscellaneous Application No. 1413 of 2022 on 17th February 2023, in which the Application was dismissed. - The Applicant's lawyers lodged an Appeal to the $c)$ Judge against the Learned Assistant Learned Registrar's decision dismissing the Application for an injunction vide Miscellaneous Application No. 310 of 2023.

- $d$ The Judge heard Miscellaneous Application No. 310 of 2023 and on 11th September 2023, the Learned Judge delivered a ruling setting aside the orders of the Learned Registrar and granted the order for a temporary injunction restraining the Respondents or their agents acting under them or with their authority from interfering with, dealing with or carrying out any activity or any further development on the Applicant's property. - $e)$ He recently learnt that the Respondents had sold off the motor vehicle in blatant and fragrant contempt of the orders of this Court. - $f$ The Respondents were aware of this Honourable Court's ruling, as it was uploaded to the ECMIS System by this Honourable Court. - As a result of the Respondents' actions, the Applicant $g)$ has suffered a serious financial setback because he lost his motor vehicle before this Honourable Court could pronounce itself on the status of ownership of the motor vehicle. - The Respondents filed an affidavit in reply sworn by Bwambale 3. David, the $1^{st}$ Respondent who was authorised to swear the affidavit on behalf of the $2^{nd}$ Respondent. He stated that: - $a)$ The Application for a temporary injunction vide Miscellaneous Application No. 1413 of 2022 was heard and dismissed with costs in the cause on 17th February 2023. - $b)$ By virtue of the said ruling, the Respondents as purchasers of the two properties had the authority to perform anything legal with them.

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- As the matter was in Court, the Respondents expected $c)$ that the Applicant would refund their money as he kept promising to. - Around April 2023, the Respondents commenced the $d$ transfer process of the Motor Vehicle and advertised the transfer. The transfer process commenced long before the ruling for a temporary injunction was given on 11th September 2023. - That motor vehicle has never been sold off and there $e)$ is no sale agreement with anyone or entity and they doubt the authenticity of the alleged motor vehicle transfer form marked as Annexure "C1" to the Affidavit in support of the Application. - The Applicant in an Affidavit in rejoinder stated as follows: $4.$ - The transfer and change of ownership of the motor $a)$ vehicle was done on 8th November 2023 while the ruling of the court was delivered on 11th September 2023. - $b)$ It was upon receipt of the Application for change of ownership from the Uganda Revenue Authority, that the Applicant contacted his lawyers who wrote to the Motor Vehicle Licensing Department of the Ministry of Works and Transport objecting to the transfer. - The Respondents have not availed any evidence in $c)$ respect to an agreement or transfer forms to prove that the transfer happened before the $11th$ of September 2023 when the court orders were issued.

# Representation

$5.$ The Applicant was represented by KOB Advocates & Solicitors. The Respondents were represented by Tropical Law Advocates.

# Resolution

- $6.$ The issue for resolution is whether the Respondents are in contempt of the court's orders in Miscellaneous Application No. 310 of 2023. Both parties filed written submissions which I have considered in resolving this matter. - The Black's Law Dictionary 8th Edition on page 956, defines 7. contempt of court as conduct that defies the authority or dignity of a court or legislature. It is conduct that interferes with the administration of justice and attacks the integrity of the court. - 8. In the case of Granada Hotel (U) Ltd Versus Ntwatwa Jackson Miscellaneous Cause No. 206 of 2023, Ssekaana J held that it is contempt of court to refuse to do an act required by a judgment or ruling or order of court within the time specified therein. The dignity and honour of the court cannot be maintained if its orders are treated disdainfully and scornfully without due respect. - In the case of Morris versus Crown office (1970) 1 ALLER 1079 9. **at 1087** court held that the purpose of contempt proceedings is to give courts the power to effectively protect the rights of the public by ensuring that the administration of justice is not obstructed or prevented. - 10. The case of Ssempebwa and Ors versus Attorney General [2019] 1 E. A 546 set down the ingredients of contempt of court as follows: - a) That an order was issued by the court

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- b) That the order was served or brought to the attention or notice of the alleged contemnor - c) That there was non-compliance with the order by the respondent - d) That the non-compliance was willful and mala fides. - 11. In this case, the $1^{st}$ and $2^{nd}$ ingredients above have been proved. There was indeed a Court Order and Respondents were aware of the Court Order. The question then is whether there was noncompliance with the court order by the Respondents. - 12. In this case, the Court granted the application for a temporary injunction restraining the Respondents by themselves and/or their agents acting under them or with their authority from interfering with, dealing with or carrying out any activity or any further development on and/or with the Applicant's property to wit; land comprised in Kyadondo Block 195, Plot 3237 land at Kyanja as well as motor vehicle registration number UAZ 567V Hilux Model (KUN 126R-DNFMYN until the determination of the main Civil Suit No. 871 of 2022. - 13. Counsel for the Applicant submitted that the car mentioned above was sold by the Respondents. He further submitted that the sale occurred on 8th November 2023, which was after the Court Order dated 11th September 2023 that stopped the sale pending the disposal of the main suit; hence, the Respondents were in contempt of court. - 14. The Applicant submitted in evidence two forms marked C1 and C2 as proof of the sale. Form C1 is titled Owner/Applicant Details and the owner is indicted as Winner Global Enterprises. Form C2 has the vehicle details and it appears that the model is the same as the one in issue. The Respondents questioned the authenticity of the forms. Counsel for the Respondents submitted that while

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the documents are public documents, they do not have the logo of the issuing body and neither are they certified by a public officer and therefore cannot be admitted in evidence. Counsel cited Sections 73 and 75 of the Evidence Act Cap 8.

- 15. I have reviewed Forms C1 and C2 and note that it is not possible to tell from which Government institution they are from. I also note that the documents are not dated. It is thus not possible to tell whether they are authentic and if so whether the said transfer was made before or after the Court Order. - 16. The Applicant also submitted in evidence Form A attached to the affidavit in rejoinder. The document has the Government of Uganda Logo and it is indicated that it is from the Ministry of Works. It is an Application for change of ownership of the vehicle in issue and the Applicant is Geoffrey Eyit Odung who is the Applicant in the present case. The printed name and signatory of the URA officer is Emmanuel Bataringaya. The fact that it has a public official as a signatory makes it a public document under Section 73 (a) (iii) of the Evidence Act. It therefore requires certification as provided under section 75 of the Evidence Act. The document is not certified. That notwithstanding, the Applicant has not proved that the Respondents are the ones who submitted the said application for change of ownership. The document has not been attributed to the Respondents. - 17. In the case of **Lourens Vs Premier of the Free State Province** and Ano. 95260 [2017] ZASCA 60, cited in Ssempebwa and Others versus Attorney General (Supra), it was held that:

*It is now settled that an applicant must prove the requisites* of contempt (the order, service or notice, non-compliance, willfulness and mala fides) beyond reasonable doubt. But once these requisites have been proved the Respondent

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bears the evidential burden of showing non-compliance was *not wilful and mala fide.*

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18. In the present case, the Applicant has failed to prove beyond reasonable doubt that the Respondents sold and transferred the vehicle in contempt of the Court Order. The Application is therefore dismissed with costs to the Respondents.

Dated this 25th day of February 2025

$\n *Q*0*H*\n$ Patricia Kahigi Asiimwe Judge Delivered on ECCMIS