Okello v Attorney General and Another (Civil Miscellaneous Application 168 of 2023) [2024] UGHC 528 (7 May 2024)

The Republic of Uganda In the High Court of Uganda Holden at Soroti Miscellaneous Application No. 0168 of 2023 (Arising from Miscellaneous Cause No. 13 of 2022)

Okello Joshua :::::::::::::::::: 10 <table>

....................................

Versus

**Respondents**

1. Attorney General

2. Soroti City Council

## Before: <u>Hon. Justice Dr Henry Peter Adonyo</u>

## Ruling

1. Introduction:

This application was brought by a Notice of Motion under Section 33 of the Judicature Act Cap 13, and Section 98 of the Civil Procedure Act, Cap 71, for orders that:

- a) A declaration that the respondents are in contempt of court orders of this Honorable Court in Miscellaneous Application No. 13 of 2022. Okello Joshua vs. Attorney General and Soroti City Council. - b) The respondents be condemned to a fine of Ug. Shs. 300,000,000/= - [Three Hundred Million Uganda Shillings] jointly and severally for contempt of court. - c) The respondents jointly and severally compensate the applicant with Ug. Shs. 500,000,000/= [Five Hundred Million Uganda Shillings Only] for the loss and suffering caused because of their contempt. - 30 - d) The $1^{\rm st}$ respondent be committed to civil prison for contempt of lawful court orders.

$\mathsf{S}$

e) The costs of this application be borne by the respondents.

2. Grounds of the application:

The application is premised on grounds set out in the affidavit of the applicant, which are:

That:

$\mathsf{S}$

- a) This honourable court on 4<sup>th</sup> April 2023 made a ruling and orders which among others quashed the decision on the respondents, the applicant and his application was considered for orders and declarations but the respondents have not implemented it and they are in contempt. - b) The applicant picked a copy of the said ruling from this court and proceeded to extract the orders of the court in the said court ruling to be served to the respondents and restrain them or their agents from any further attempts of continuing to load and off-load passengers in the streets of Soroti town. - c) Immediately after the extracted order was signed and certified by the Assistant registrar, the applicant served the respondents on 6<sup>th</sup> September 2023 with copies of the said certified order and they both received and stamped on the return copy. (A copy of the order received/stamped by the respondents is attached and marked as annexure "A"). - d) From the time this honourable court passed a ruling, the respondents have since then refused to obey the orders of this honourable court passed in the ruling of 4 of April 2023, purporting to allow public service vehicles to load and off-load passengers in the streets based on the same issues enlisted in Misc. Cause No.13 of 2022. - e) The respondents have completely failed to get their agents a transport terminal or temporal gazetted place for the public service vehicles to load

- and off-load passengers which has amounted to complaints from passenger loaders or bus company managers against them. - f) Besides the above, the respondents further continued illegal street parking makes or has made traffic situations chaotic because the roads are narrow and lack pedestrian lanes thus leading to more accidents yet they are expected to value or consider parking as an integral component of the transport system which would play a crucial role in the management of traffic and congestion. [Exhibit of photos of buses parked in streets are attached and Collectively Marked as annexure "B"'].

g) The actions of the respondents are in bad faith only intended to abuse the court process and bring actions of the court to disrepute.

- h) The contempt has been with impunity, is repetitive and continuing. - i) It is in the interest of justice that this application be granted to prevent an abuse of court process. - 3. Affidavit in reply: - The respondents objected to the instant application through an affidavit in reply 20 sworn by Obore James, the Deputy City Clerk of Soroti City (the 2<sup>nd</sup> respondent). He stated that: - The respondent in the execution of its mandate sought the i. intervention of police to coordinate with its law enforcement department to prohibit and arrest persons found parked on the streets, loading and offloading passengers outside the designated place. (attached hereto are letter to DPC requesting for reinforcement, marked "A1", a letter directing the Senior Enforcement officer to work with police Marked "A2", Report of the enforcement team on the exercise Marked "A3").

$\mathsf{S}$

- The respondents have at all material times engaged the police and ii. law enforcement officers to carry out operations on illegal parking, loading and offloading of passengers in non-gazetted areas. (see a copy of the vehicles clamped by the Enforcement personnel attached and marked" A"). - Soroti City has since the delivery of the ruling in Misc Cause 13 of iii. 2022 ordered and directed that all operation of public transport to the bus terminal for the buses and taxis which is operational now and the city has never at any point received a complaint from the Bus owners or managers concerning the bus terminal (See attached photographs of the bus terminal during grading and murraming marked "B). - The respondents have never parked their vehicles in the streets nor iv. have the respondents authorized vehicles to park in the streets which has made the traffic situation chaotic as alleged by the applicant and there have been no accidents recorded since the delivery of judgment in Misc Cause 13 of 2022. - The ruling was delivered in April 2023 within the fourth quarter of V. the financial year and despite the budget constraints to implement the orders of the court, the city authority nonetheless routed all Public transport to the bus terminal and taxi parks which have since been operational. - This application is brought in bad faith and there is no proof of vi. contempt of the court order committed by the respondents. - The applicant has not suffered any damage and therefore he is not vii. entitled to all the prayers in this application. - 4. Representation:

$\mathsf{S}$

- According to the pleadings, the applicant is self-represented, while M/s Attorney $\mathsf{S}$ General's Chambers-Soroti Regional Office represented the respondents. The applicant filed written submissions, and the court is grateful. However, despite this court's order towards the parties to file their submissions, the respondents' submissions were never filed. I have read through and considered - only the filed submissions of the applicant is referred to as and when necessary. 10 5. Issues:

The applicant formulated four issues in his submissions, however, upon careful consideration, I am of the view that two issues do resolve this instant application and these are;

- a) Whether the respondents are in contempt of court orders issued vide Miscellaneous Cause No. 13 of 2022? - b) What are the remedies in the circumstances? - 6. Resolution: - a) Whether the respondents are in contempt of court orders issued vide - 20

## Miscellaneous Cause No. 13 of 2022?

This application was brought under Section 98 of the CPA, which empowers this court with inherent powers to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court and Section 33 of the Judicature Act, Cap 13, which empowers this court to grant absolutely or on such terms and conditions as it thinks just all such remedies as any of the parties to a 25 cause or matter is entitled to in respect of any legal or equitable claim properly brought before it, so that as far as possible all matters in controversy between the parties may be completely and finally determined and all multiplicities of legal proceedings concerning any of those matters avoided.

This application arising from a civil matter; thus, it is trite that the duty and 30 burden of proof lies on the applicant because he is the one who seeks to get a

decision of this court in his favour. (See: Sections 101 and 102 of the Evidence $\mathsf{S}$ Act, Cap 6).

The applicant's case is based on Contempt of court which is defined by Blacks' Law Dictionary 9<sup>th</sup> Edition on page 360 as;

A disregard of, or disobedience to, the rules or orders of a legislative or judicial body, or an interruption of its proceedings by disorderly behavior or insolent 10 language, in its presence or so near thereto as to disturb the proceedings or to impair the respect due to such a body.

The position of the law in Uganda is that for contempt of court to be established against the contemnor, the following principles have to be established: -

- a) Existence of a lawful order. 15 - b) The potential contemnor's knowledge of the order and; - c) The potential contemnor's failure to comply, that is, disobedience of the order. (See Stanbic Bank (U) Ltd & Jacobsen Power Plant Ltd v The *Commissioner General Uganda Revenue Authority HCMA 42 of 2010.)*

i. Existence of a court Order: 20

> This court determined Miscellaneous Cause No. 13 of 2022 and in it certain orders were issued, which for ease of reference I repeat here, thus;

- 1. An order of mandamus is hereby issued against the $2^{nd}$ respondent requiring it to prohibit or restrain any public service vehicles (buses, taxis, boda-bodas, - freight and or commercial vehicles) from loading and offloading passengers and or goods on non-gazette city road to reduce congestion and accidents. - 2. An order of mandamus is issued ordering the $2^{nd}$ respondent to within two (2) years to gazette bus, taxi, boda-boda, and freight terminal as may be required for the orderly loading and offloading of passengers and goods. - 3. An order of mandamus is issued ordering the $2^{nd}$ respondent construct 30 roundabout or such junction or mechanisms which shall allow and ensure


- free flow of traffic in area which are currently either congested or need facilities in accordance with the relevant governing laws. - 4. The respondents are directed to take measure suspending all loading and offloading of passenger in public access roadways and street to provide in the meantime a workable traffic flow mechanism in area where future round about or traffic flow mechanism in area where future round about or traffic signalling is planned to restore the public property in a manner best suited to public interest. - 5. The $2^{nd}$ respondent is direct to ensure compliance with the law and orders relating traffic safety by ensuring suitable flow of person and goods within the city limit and is also directed to take immediate step to implement all others trading laws including the ensuring that trading activities are carried out in properly gazette trading places and not on walking and passages for people or alley ways and fire rescue routes. - 6. The 2<sup>nd</sup> respondent is directed to prepare and submit before court a detailed and complete plan on the it intends to regulate the loading and offloading of passengers and goods within the city limits including traffic flow and all antecedent proper management of business and public life within the limits of the city in accordance with its approved master and layout plan. - 7. Since this matter has been brought in the public interest, no order of costs is found relevant and as such none is given. accordingly, each party must bear own costs.

The above is what the applicant is referring to and would wish this Honourable Court to find the respondent in contempt of.

From the pleadings of either party, I find that there is neither any contention nor any dispute by any of the parties herein as to the existence of the decision of this court made on 4<sup>th</sup> September 2023 in Miscellaneous Cause No. 13 of 2022 and

$\mathsf{S}$

- the subsequent extraction of a court order arising from thereto. This ground is $\mathsf{S}$ thus answered in the affirmative. - Potential contemnor's knowledge of the order: ii.

The applicant under paragraph 6 of his affidavit in support contends that Annexure "A" attached to his affidavit in support attests that after extracting the

- order arising from the decision of this Honourable Court as cited above in 10 Miscellaneous Cause No. 13 of 2022, which was signed and certified by the Assistant Registrar of this Honourable Court, with the applicant then averring that the respondents on 6<sup>th</sup> September 2023 with copies of the said certified order and that both respondents received and stamped on the return copy. - The respondents did not respond specifically to the issue raised by paragraph 6 15 of the applicant's affidavit in support of the notice of motion. The position of the law in regard to service of process and or court orders is found in Order 5 rule 16 of the Civil Procedure Rules with Order 49 rule 2 of the Civil Procedure Rules providing that all orders, notices and documents required by the - Act to be given to or served on any person, shall be served in the manner 20 provided for the service of summons.

Under Order 5 rule 16 of the Civil Procedure Rules proof of knowledge of the court Order can only be by proof of service as provided for by the rules of civil procedure.

- This position was well highlighted by the Court of Appeal in the case of *Housing* 25 Finance Bank Ltd & Another v Edward Musisi M. A 58 of 2010 where it stated that the general principle is that a person cannot be held in contempt without knowledge of a court order. However, a party who knows of an order regardless of whether, in view of that party, the order is null or valid, regular or irregular; - 30 cannot be permitted to disobey it by reason of what that party regards the order to

- be as it is not for that party to choose whether or not to comply with such an $\mathsf{S}$ order. The order must be complied with in totality. (Emphasis mine) In respect of this matter, I have perused Annexure "A" of the applicant's affidavit in support of the application and it is true bears the stamps of the respondents. However, according to Order 5 rule 16 of the Civil Procedure Rules, proof of - service of summons is by an affidavit of service which must state the time when 10 and the manner in which summons was served, and the name and address of the person, if any, identifying the person served and witnessing the delivery of summons among other requirements. Consequently, an affidavit of service deponed in the manner required by the rules is the only form of actual knowledge 15 of the contents of the extracted order. - In the instant matter, it is evident that no affidavit of service was filed on record apart from the averment of the applicant in his affidavit in support of this application that the respondents were served and that they individually acknowledged receipt of the court order by putting their stamps on the same. - While that fact may be true, the import of Order 5 rule 16 of the Civil Procedure 20 Rules and Order 49 rule 2 of the Civil Procedure Rules is that an extracted court order must be served in the manner as provided by the law for it to be proper service and so without such proper service through known processes of the law. then the court is not in position to impute knowledge that a party did receive a - court order. The court is required by law to be satisfied that indeed the affected 25 by did have knowledge of the court order as served through appropriate court process.

In this application, there no such evidence that the provisions of Order 5 rule 16 of the Civil Procedure Rules and Order 49 rule 2 of the Civil Procedure Rules were complied with.

- That being the case, I would find and conclude that the applicant has not proved, $\mathsf{S}$ on a balance of probabilities, that the respondents had actual knowledge of the extracted order as is in accordance with the law. This being a court of law it must enforce the law by ensuring that parties before it complies with the law and not otherwise. Accordingly, since the law relating to service was not complied with - then Ground Two that the potential contemnor had appropriate knowledge of 10 the order, would fail rendering it futile to consider anymore the last ground that the potential contemnor failed to comply with a court order.

Accordingly, this application is found to have been made in haste without the applicant completing all the required legal processes which would then render an application such as the instant one to succeed. That the nitty gritty

requirements of the law were not followed renders this application to lack merit and it thus would fail.

b) What Remedies are available to the parties?

Since the application has failed and is dismissed, there are no remedies available to the applicant. 20

Conclusion and Orders:

This application fails for the reasons given above with no orders as to costs given the fact that this application still arises from a concluded public interest litigation. I so order.

Hon. Justice Dr Henry Peter Adonyo

Judge 7<sup>th</sup> May 2024