Okune Estate and Anor v Ibuje Sub-county and Ors (Miscellaneous Application No. 40 of 2021) [2022] UGHC 1 (27 January 2022)

Full Case Text

# **THE REPUBLIC OF UGANDA**

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

## **M. A No. 40 of 2021**

## **(arising from High Court Civil Suit No.0019 of 2012)**

# **1. MRS. SOPHIA OKUNE(ADMINISTRATOR OF THE ESTATE OF THE LATE HON. JOSEPH WILLIAM OKUNE)**

**2. AWINO STONE QUARRY COOPERATIVE SOCIETY:::::::::::::::::::::::::::::::::::APPLICANTS**

#### **VERSUS**

- **1. IBUJE SUB-COUNTY** - **2. OYURU GEOFFREY** - **3. ODONGO JANET** - **4. MATRIX LANDS LIMITED::::::::::::::::::::::::::::::::::RESPONDENTS**

#### **BEFORE: HON. JUSTICE DUNCAN GASWAGA**

#### **RULING**

[1] The applicants brought this matter under Articles 128(2),(3) & 28(12) of the Constitution of the Republic of Uganda, 1995, Section 33 of the Judicature Act, Cap 13, Sections 64(c) & (e), Section 98 of the Civil Procedure Act and Order 52 rules 1,2 and 3 CPR for orders that; *a declaration that the respondents are in contempt oforders ofthis court to wit; judgment issued by this court in HCT-CV-CS-0019 of 2012: an order that the respondents pay exemplary damages for the contempt; an order that the license agreement entered on 26/08/2020 between*

*1st respondent and 4th respondent in connivance with the 2nd and 3rd respondents be declared null and void; an order that the 2nd and 3rd respondents be detained in CivilPrison for contempt and disobedience of court orders or be fined Ugx 200,000,000/= as a sanction for their contemptuous conduct; an order of a permanent injunction be issued restraining the respondents, their agents and or employees, licensees, assignees and anyone acting under their instructions from further trespassing, quarrying, alienating or using for any purpose the land situate at Tekidi, Ibuje sub-county, Apac District and which was directly in issue in HCT-CV-CS-0019 of 2012 and that the costs of this application be provided for by the respondents.*

[2] The grounds for this application were expounded on in the affidavit of **Mrs. Sophia Okune** filed in support of the application and these are that; she instituted Civil Suit No. 0019 of 2012 against the 1st and 2nd respondents together with other defendants for recovery of land, an eviction order, a permanent injunction, general damages and costs of the suit and judgment was entered in favour of the plaintiff against the 1st and 2nd respondents after a protracted successful litigation. That she was subsequently awarded costs which were taxed and allowed at Ugx 45,000,000/= which are yet to be paid by the 1st and 2nd respondents. That the respondents have not made any appeal vide Civil Suit No. 0019 of 2012 and in utter breach and contempt of the court order, the respondents trespassed on the judgment land where they were adjudged trespassers. That the respondents have purportedly executed a License Agreement on the 26th day of August 2020 in which the 1st respondent, while being pandered by the 2nd and 3rd respondents entered into an illegal and fraudulent license

agreement with the 4th respondent and the 4th respondent is set to blast the rock without the 1st applicant's consent and in total violation of the court orders. That the applicants do not only have a portion of the rock as portrayed by the respondents since the court adjudged 10 hectares as belonging to the 1st applicant and the rest of the 70 as belonging to the 2nd applicant. That the 2nd and 3rd respondents acted with malice for personal gains when they used their positions to mislead the 1st respondent to disobey lawful orders and in total disregard of the court order, the 1st, 2nd and 3rd respondents in connivance with the 4th respondents have made a forceful entry on the land with the ill intention to quarry the rock thereon without the consent of the applicants which actions amount to contempt and disobedience of court orders.

[3] The applicant further averred that the orders sought herein are necessary to ensure respect of this honorable court and enforcement of its orders and protecting the applicant's right to enjoy the fruits of a successful litigation. That in a bid to embrace development, the applicants wrote to UNRA to express their willingness to sell on commercial basis stone materials from the quarry to any contractor and UNRA wrote to the contractor confirming that the rock situate at Ibuje belongs to the applicants but they trespassed on the land instead. After a complaint, the applicants were informed that the authorized contractor of UNRA had sub-contracted 4th respondent regarding the applicants' land. That the 1st respondent, through its sub county chief the 3rd respondent and the 2nd respondent in a bid to make a profit for themselves trespassed on the applicants' land in a bid to quarry the rock thereon to tarmac the Rwekunye-Masindi port-Apac Road. That the respondents continued trespass amounts to contempt of court.

- [4] On the very day (03/08/2021) of filing this application the applicants also lodged another application M. A No. 41 of 2021 praying for court to issue a *temporary injunction in respect of the suit land (herein after referred to as the Ibuje Rock measuring 80 hectares) against the respondents.* This application was heard and determined on the 23/09/2021 whereupon the learned Registrar of this court issued an order of temporary injunction sought by the applicants, *restraining the respondents, their agents , employees, assignees, licensees and anyone acting under or on their instructions from further trespassing, quarrying, alienating or using for any purpose the land subject of Civil Suit No. 19 of 2012 situate at Tekidi, Ibuje Sub-county, Apac District, pending the hearing and determination of M. A No. 40 of 2021.* In essence, this injunctive order, which is still in force, has temporarily suspended any dealings or activities on the entire Ibuje Rock ever since. Ideally the injunctive order should have covered only activities and dealings on the 10 hectares where the 1st applicant has interest and not beyond. - [5] The instant application has been vehemently resisted by all the respondents who prayed that the same should be dismissed with costs for lack of merit and the temporary injunction lifted immediately. Both Counsel Musika for the 4th respondent and Counsel Twesigomwe Dorris from Attorney General's chambers representing all the respondents pointed out a number of grave defects and numerous falsehoods in the affidavits filed in support of the applicant's case. Before dealing with those defects I find it apposite to handle the main questions in the application first.

*cannot be permitted to disobey it, by reason ofwhat that party regards the orderto be. Thatit would be dangerous to hold that suitors or their solicitors, could themselves judge whether an order was null or valid, whetherit was regular orirregular. That the course of a party knowing of an order which is null or irregular and who might be affected by it is plain. He should apply to the court that it might be discharged. As long as it exists, it must be obeyed. It is not for that party to choose whether or not to comply with such an order. The order must be complied with in totality, in all circumstances by the party concerned subject to that party's right to challenge the order in issue in such a lawful way as the law permits. This may be by revision, review or by appeal. "* See Also **Richard Odoi Adome Vs Stanbic Bank (U) Limited M. A**

**No.1047 of 2021 (Commercial Court)**

### **Issue 1: Whether the respondents are in contempt of a court order**

- **[9]** The elements that ought to be established in order to prove civil contempt of court were outlined in the case of **Stanbic Bank (u) Ltd and Jacobsen Power Plant Ltd Vs, Uganda Revenue Authority, M. A No. 42 of 2010** as follows: - *(I) the existence of a lawful order* - *(II) the potential contemnor's knowledge of the order* - *(III) the potential contemnor's ability to comply* - *(IV) the potential contemnor's failure to comply.*

## **The existence of a lawful order**

- **[10]** In his submission, Counsel for the applicant did not dispute the above court order as reproduced in paragraph 6 (herein above) however, he went on to submit in line with the affidavits in support of the application as sworn by the 1st applicant and the representative of the 2nd applicant that according to the judgment, the 70 hectares which remained after adjudging the 10 hectares in favour of the 1st applicant are meant to belong to the 2nd applicant. Further, this formed the thrust of his argument and basis for the alleged trespass as well as existence of a lawful court order (in Civil suit No. 19 of 2012) vesting the 70 hectares in the names of the 2nd applicant. In response, both Counsel disagreed with the applicant's interpretation of the judgment as it is totally wrong and misleading. I am in total agreement with respondents that a reading of the said judgment does not confer any interest in the Ibuje Rock to Awino Stone Quarry Cooperative Society outside the 10 hectares decreed to the 1st applicant. - **[11]** In fact the only lawful court order that can be discerned from the judgment is that indicated in paragraph 6 above ordering for a delinking of 10 hectares of the Ibuje Rock from the 80 which belongs to the 1st respondent. Perhaps the other lawful order is the order made for costs to be paid to the 1st applicant but even on that one when Counsel was asked during the hearing he submitted that although his clients had taxed costs in hand, no formal demand has ever been made to the respondents to effect payments. In all, I find that the so called "lawful order" as crafted by the applicants cannot stand because no such order was ever given by the judgment in Civil Suit No. 0019 of 2012. Of importance to note here also is that the 2nd applicant is reflected in the

said judgment as a mere witness and not a party. The application at hand arises from Civil Suit No. 0019 of 2012 to which only the 1st applicant was the plaintiff. As such, the 2nd applicant in M. A No. 40 of 2021 and M. A No. 41 of 2021(Awino stone quarrying cooperative society) has no *locus standi* to bring these proceedings. The 2nd applicant has inconvenienced the respondents by dragging them to court without *locus standi and* consequently has to pay for this inconvenience. The 2nd respondent should therefore be condemned in costs. Resultantly, I find that the applicants have not fulfilled the 1st requirement.

## **The potential contemnor's knowledge of the order**

**[12]** On this requirement, it was alleged that all the parties had been served with the relevant court order and on that note the applicant's Counsel moved court to proceed with the hearing even against the 2nd and 3rd respondents who had not turned up. It was submitted by the respondents, and rightly so, that any hearing conducted in absentia of the 2nd and 3rd respondents would be rendered nugatory because as indicated in paragraph 13 of the affidavit in reply of the 1st respondent, the two were no longer employees of the 1st respondent. See also the case of **Jack Erasmus Nsaqiranabo Vs Col. Kaka Bagyenda- The Director ISO and Anor M. A No. 671 of 2019.** Moreover, apart from merely alleging that all the respondents had knowledge of the order, the applicants produced no evidence or proof of that knowledge in respect of the 2nd and 3rd respondents. So, in essence, only the 1st and 4th respondents had knowledge of the existence of this order.

## **The potential contemnor's ability to comply** **[13]** It has been submitted by the applicants that the respondents are capable and able but un-willing to comply with the said court order. Both Counsel for the respondents jointly submitted that their clients have done everything possible to have the correct order of court implemented but that the first applicant does not seem to be interested in executing the judgment or having it executed. I entirely agree with the respondents on this aspect and this position is fortified by the evidence on record. For instance, in a letter dated 1/10/2020 Ibuje Subcounty (1st respondent) wrote to the 1st applicant Sophia Okune as follows;

> *"...... I am writing to show you the location ofthe above 10 hectares which later became a contention resulting into a court case between you, Ibuje Sub-county and 4 others which was concluded on the 12/02/2019. I have attached hereon a Google earth map delinking the 10 hectares from the 80 hectares. The location of the 10 hectares has not changed from the original area where the community stone quarrying activities for the late Joseph William Okune were taking place. I am therefore writing to advise you to apply for a fresh lease of the same to Apac District Land Board if you still have interest to continue with community stone quarrying activities since you were the one leading those communities.*

*Signed............. Janet Odongo Sub County Chief Ibuje Sub-county Local Government.* **[14]** This letter was copied to among others, the applicant's lawyer and a Google map showing the area referred to measuring 10 hectares was also attached. Another letter was written by the Solicitor General, from the Attorney General's chambers on 30/11/2021. The said letter was addressed to the Assistant Registrar of Lira High Court seeking for Court's indulgence and direction on the execution of this matter (judgment in Civil Suit No.019 of 2012) vide Section 33 of the Judicature Act. It was also copied to the applicant's lawyer among others. On the 17/12/2021 the Assistant Registrar Lira High Court wrote to the Commissioner Surveys and Mapping, Entebbe requesting for a staff surveyor to assist in the execution of the judgment in (Civil Suit No. 019 of 2012) by delinking 10 hectares belonging to the applicant from the 80 hectares of Ibuje rock. This letter too was copied to among others the 1st applicant. On the 20/12/2021 Mr. Ateng Francis the head of Lira Ministry of Lands and Housing Zonal office wrote to the Registrar of the High Court assigning senior staff surveyor Mr. Sam Eriamu to take part in this exercise. As can be seen, the 1st respondent was doing everything possible including seeking for assistance from government institutions to have the judgment implemented. Surprisingly, on 21/12/2021 the Assistant Registrar of Lira High Court received a letter from the 1st applicant's lawyers Makmot-Kibwanga and Co. Advocates protesting the notice of intended survey/delinking of the 10 hectares from the suit land at Ibuje. The protest reads in part;

*that we are in receipt of your letter dated 17th December, 2021 addressed to the Commissioner Surveys and Mapping and copied to us in which the*

*court seeks to execute our client's decree even if they have not made any application for execution legally, it is only the successful party that may apply for execution underthe Civil Procedure Act Cap 71 and the attendant Rules and our clients are such a partv-except if there is a court order directing the Registrar to execute-and there is no such Court Order. (Annexures 'A'and'B')*

*2. That the Court Order available does not disclose any iota of right of Ibuje Sub-county and previous agreement between Ibuje Sub County and 3rd parties were found illegal by court. This planned delinking in favour ofIbuje Sub County is therefore illegal and more so a violation of the Court Injunction granted by this court andpresided overbyyourLearnedself(Annexure 'C' and 'D')*

*3. That, therefore, the position of Court as reflected in your letter cited above is not supported by any known legal position and an attempt to implement it shallraise legal complications and shall attract sanctions. More so, there is still a pending 'Contempt of Court' application arising from this case before His Lordship the Resident Judge of the High Court Lira.*

*4. That our clients shall, in the course, make a formal application for execution but until then we pray that you keep the Commissioner for Survey and Mapping and indeed any civil servant, out of this private litigation as that would amount to abuse ofpowers and office by the Commissioner or such civil servant which is criminal and prohibited by the Anti-Corruption Act, 2009.* **We** *can afford our own surveyors.*

*BY A COPY of this letter the Commissioner Surveys and Mapping and the Bailliffs and their respective agents are notified. The Uganda Police is also informed. ''*

**[15]** Clearly, from these letters the respondents especially the 1st respondent cannot be faulted for failure or lack of willingness and ability to comply with the lawful court orders as declared in the judgment of the learned Hon. Justice Byabakama. In fact, the respondents are the ones who seem to be running after the 1st applicant and kind of pleading with her to receive the fruits of her judgment. Instead what filters through is the deliberate and insolent refusal of the 1st applicant (Mrs. Okune) to receive and or take possession of what she asked for and obtained from the court way back in 2019. It should be remembered that the 1st applicant sued the 1st respondent and others to recover the 10 hectares which she was given. Therefore, by refusing to execute that judgment or applying delaying tactics and thereby inconveniencing other people and entities supposed to enjoy and make use of the 70 hectares, it is as if the applicant is holding everyone and the court as well at ransom. This is totally un acceptable and I think it is an abuse of court process. For the court has engaged its resources to give the applicant the justice she needed. By this conduct instead, it is the 1st applicant now bordering on contempt of court. For her interest has clearly been declared as 10 hectares and nothing more. She should only be concerned with her 10 hectares which she litigated for and received. As to who should take the remaining 70 hectares is not for her to determine. In case she has any further claim she may wish to make on the remaining 70 hectares, it is open to her to do so through the right channels instead of trying to misinterpret the judgment and mislead others.

- **[16]** Perhaps I should add that bearing in mind that a court cannot act or give orders in vain yet the applicant's Counsel has clearly written that he will make an application for execution only or as and when they feel like, this court should get involved in the final execution of the orders in the judgment so that the matter can be put to its logical conclusion once and for all. In order to stop the ongoing inconvenience as well as the un-ending litigation regarding the Ibuje Rock, the court shall oversee the entire exercise of delinking of the 10 hectares from the 80 hectares. In case the 1st applicant is still uninterested in carrying out the execution herself, then the 10 hectares shall be properly measured, marked and preserved and left aside for the 1st applicant (Mrs. Sophia Okune) to take possession in future, as and when she will be ready to do so. - **[17]** In conclusion, I find that the 3rd and 4th requirements too have not been satisfied. As such, unless for academic purposes, I find no reason to deal with the defects and falsehoods earlier pointed out in the affidavits in support of the application by the respondent's Counsel. For the same reason, the court finds no need to resolve the 2nd issue since the applicants are not entitled to any remedies. This application (M. A No. 40 of 2021) shall therefore fail for lack of merit. In the same vein, since M. A No. 41 of 2021 from which the temporary injunction was issued, arises from the instant proceedings (M. A No, 40 of 2021) it follows that

the said M. A 41 of 2021 and the order of injunction issued therefrom on the 23/09/2021 must also collapse.

- **[18] Accordingly, this application is hereby dismissed on the following terms;** - **(a)that the temporary injunction issued by the learned Registrar on 23/09/2021 in respect of the 80 hectares of Ibuje Rock is hereby set aside** - **(b)that both applicants pay costs of this application to the 1st and 4th respondents** - **(c)that the learned Registrar of this court makes the necessary arrangements with all the concerned parties for the final execution of the judgment of the learned Hon. Justice Byabakama, in any case, in a period not later than 4 weeks from now. Further arrangements should be made for the Court to visit the locus and witness the final execution of the judgment.**

## **I so order**

**Dated, signed and delivered at Lira this 27th day of January 2022.**

**Duncan waga**