Oluka and 3 Others v Opoloti (Miscellaneous Application 44 of 2024) [2024] UGHC 661 (12 July 2024)

Full Case Text

The Republic of Uganda In the High Court of Uganda Holden at Soroti Miscellaneous Application No. 44 of 2024 (Arising from Civil Suit No. 24 of 2022)

- 1. Oluka Philip 10 - 2. Amoding Dinah Jesca

3. Aguti Betty

4. Akello Sipola

Versus

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Opolot Yakobo

**Respondent**

**Applicants**

#### Before: Hon. Justice Dr Henry Peter Adonyo

#### Ruling

### 1. Introduction:

The applicants brought this application by a Notice of Motion under Section 33 of the Judicature Act Cap 16, and Section 98 of the Civil Procedure Act, Cap 282, for orders that the respondent be committed to civil prison or alternatively be made to pay fine for contempt of court orders and provision be made for costs of this application.

2. Grounds of the application:

Akello Sipola - the 4th Applicant deposed the affidavit to support the application on her behalf and for the 1st, 2nd and 3rd applicants. She set out the grounds that;

- a) There is a pending suit No. 024 of 2022 before this Court against the respondent. (see copy of the plaint attached as annexure "B"). - b) In 2023, injunctive Miscellaneous Application No. 197 of 2023 was consented by both parties before this Honourable Court to maintain the status quo of the suit land. (see a copy of the consent Order attached as annexure "C"). - c) The respondent and his agents breached the Consent Order by destroying the $1st$ applicant's planted cassava in early February 2014. - d) The respondent refused to attend a meeting held before the area LC1 of Osiru village, Oteteen parish, Ngora district to resolve the matter. (Proceedings marked as "D") - e) On 16th February 2024, the respondent again with his agents ploughed the gardens in use by the applicants including the road to their homes. (Photographs taken by the 1st applicant when the respondent and his agents were ploughing attached as "E"). - f) The respondent caused the oxen to knock and assault the $1$ st applicant as she tried to stop him and his agents from ploughing the suit land and the road leading to their homes. - g) The 1st applicant reported the criminal case to Ngora Central Police against the respondent. Annexure F. - h) The continued conduct of the respondent amounts to contempt of court orders in violation of the judicial pronouncements from this respectable court. - i) The applicants' lawyers advised that such acts and conduct of the respondent are arbitrary and amount to disobedience of lawful court.

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- i) The Respondent be committed to Civil Prison for a period of six (6) months for contempt of Court Orders and or pay a fine of Ugx. $10,000,000/$ = (Ten Million Shillings) as damages for breaching the injunctive Orders or both. - k) It is just and equitable that the Respondent be restrained by the Court from the continued disobedience of the Court Orders. - 1) The applicants are able, very ready and willing to pay for the subsistence 10 allowance for the respondent while in civil prison. - m) It is just and equitable that this Honourable Court grants the Orders prayed for therein, and I swear this Affidavit in support of the above application. - 3. Affidavit in reply: - Opolot Yakobo objected to the instant application through an affidavit in reply 15 that he deposed where he stated that; - a) The respondent did not personally destroy the said cassava, but as his children were ploughing a garden that was long given to him by his uncle Mzee Mikloth Obany, they were over-powered by the oxen, which crossed over to the nearby gardens, including the one planted with the said cassava. - b) The respondent did not refuse but offered to pay a compensation of Shs. $50,000/$ = to the complainant but she rejected that she wanted Shs. 145,000/= which was unrealistically high. The LCs pleaded with her to reduce it to Shs. 80,000/= but she refused that she couldn't accept anything less than Shs. $145,000/$ =, which to him was very unrealistic given the number of cassava plants that were just partially damaged. - c) On the evening of 15th February 2024, the respondent's Uncle Mzee Obany asked the respondent's children to plough for him in his garden, which they accepted. The respondent's role was to remove shrubs in the garden. The

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- respondent was aware that Mzee Obany has been using the garden and that he even has his oranges in that garden. - d) The respondent did not in any way knock and assault the complainant; on the contrary, the complainant confronted the respondent's children while they were ploughing the said garden for their grandfather. The oxen and the plough did not knock the complainant, as she alleges. - e) The respondent has not acted in contempt of any court order, but the applicants are using all means possible to have the respondent detained. - f) The applicant is in contempt of court because she confronted the respondent's children when they were ploughing Mzee's garden, which Mzee has been cultivating since 2009 and even has his oranges. - g) The respondent has not disobeyed any court orders. - 4. Additional affidavit in reply:

Obany Mikloth deposed an additional affidavit and briefly stated that;

- a) The $1^{st}$ , $2^{nd}$ , $3^{rd}$ and $4^{th}$ applicants are all biological adult children of Obany whom he reared from childhood and made provision for their upkeep, including food, clothing, shelter, education and medication amidst Obany's limited income. - b) The applicants sued Opolot Yakobo, Obany's nephew, with continued ill intent and fraudulent motives of wanting to grab, own, possess, and occupy Obany's personal land at Osiru village, Oteteen parish, Ngora Sub County in Ngora district while Obany, their father, is still alive. - c) Before the injunction of 19th December 2023, the applicants were cultivating only two gardens in the suit land, and maintaining the status quo meant they continued using the two gardens until the disposal of the main case.

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- d) On the evening of 15th February 2024, Obany told his nephew Opolot Yakobo - he respondent, to tell his children to help Obany plough his garden, which he accepted. - e) Obany has been cultivating this particular garden, and he has not given it to anyone since 2009, following the conclusion of the successful court ligation between Obany, Atai D. Mary, and Obany Phillip vide Civil Suit No. 0026 of 2008. - f) Obany even planted orange trees in this garden, which have been there for the last seven years and have been part of his source of income. - g) Obany is very surprised that the applicants alleged that they have been cultivating this garden and that Opolot Yakobo - the respondent whom Obany had instructed to plough for him acted in contempt court. - h) Obany is perturbed that the $4th$ applicant can have the guts to block Obany's workers from cultivating his garden, which he has not given to anyone, on the pretext that she is enforcing a court order which conduct is a demonstration of their ill intentions and fraudulent motives of wanting to grab, own, possess and occupy Obany's personal land at Osiru village, Oteteen parish, Ngora Sub-County in Ngora district, while their father, Obany is still alive.

5. Representation:

Counsel Oluka James represented the applicants, while Counsel Mbabazi 25 Nicholas represented the respondent. The parties filed written submissions, for which I am grateful. The submissions shall be referred to as and when necessary.

- 6. Issues: - a) Whether the respondent is in contempt of court orders issued vide Miscellaneous Application No. 197 of 2023? - b) What are the remedies in the circumstances?

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#### 7. Resolution: $\mathsf{S}$

This application was brought under Section 98 of the Civil Procedure Act which clothes 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 16 which empowers this court to grant absolutely

- or on such terms and conditions as it thinks just all such remedies as any of the 10 parties to a 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. - As this is an application arising from a civil matter, it is the duty and burden of 15 proof lie on the applicants because they seek a decision of this court in their favour. (See Sections 101 and 102 of the Evidence Act, Cap 6). - a) Whether the respondent is in contempt of court orders issued vide Miscellaneous Application No. 197 of 2023? - Contempt of court, as defined in the Blacks' Law Dictionary 9th Edition on page 20 360 means;

" 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 language, in its presence or so near thereto as to disturb the proceedings or to impair the respect due to such a body."

Edward M. Dangel, Contempt § 1, at 2 (1939). Civil Contempt. (1884) :

The failure to obey a court order that was issued for another party's benefit. A civil-contempt proceeding is coercive or remedial in nature.

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

- Existence of a lawful order. $5$ $\overline{1}$ . - The potential contemnor's knowledge of the order and; ii. - The potential contemnor's failure to comply, that is, disobedience of the iii. order. (See: Stanbic Bank (U) Ltd & Jacobsen Power Plant Ltd v The Commissioner General Uganda Revenue Authority HCMA 42 of 2010.) - Existence of a Court Order: $\mathbf{I}$ 10

I have perused the affidavits on file and the entire record of proceedings together with the file from which this instant application arises (Civil Suit No. 24 of 2022). Being guided by the principle that parties are bound by their pleadings, I perused an extracted order "C" of this court issued vide Miscellaneous Application No.

197 of 2023, it was a Consent of the parties which was endorsed by this court and 15 it states that:

# BY CONSENT of the parties, it is hereby agreed that the Miscellaneous Applications 196 and 197 of 2023 arising from Civil Suit No. 24 of 2022 are settled as follows:

- 1. That the status quo is maintained by all the parties to the suit. - 2. Both parties maintain gardens that are currently in use on the land. - 3. That the house being constructed on the suit land by the applicants should continue. - 4. The respondents shall visit the burial grounds on the suit land during the daytime. - 5. Each party bears his/her own costs.

The applicants refer to the above injunctive order and want this court to find the respondent in contempt of it.

- Neither party contests nor disputes the order. Therefore, it is my finding that a 5 court order does exist which is clear, unambiguous and capable of being complied with. This principle is answered in the affirmative. - Potential contemnor's knowledge of the order: ii. - The 4th applicant averred in his affidavit in support of this application that in 2023, injunctive Miscellaneous Application No. 197 of 2023 was consented by both 10 parties before this Honourable Court to maintain the *status quo* of the suit land. As stated by the Court of Appeal in the case of Housing Finance Bank Ltd & another *v Edward Musisi M. A 58 of 2010*, 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 15 party, the order is null or valid, regular or irregular, 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 order. The order must be complied with in totality. - I have perused the extracted Court Order; Annexure "A" to the applicants' 20 affidavit in support of the application but while it bears a signature of the respondents' (then applicants') counsel, there is no evidence that the applicants filed an affidavit of service of the order upon the respondent (then one of the four applicants) who received the same and thus had knowledge of the order - even though it was by consent. This is because they were many parties and 25 personal knowledge of the order is very important.

According to Order 5 Rule 16 of the Civil Procedure Rules, proof of service of summons is by an affidavit of service, and this must state the time when 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.

- More appropriately, Order 49 Rule 2 of the Civil Procedure Rules provides that all $\mathsf{S}$ orders, notices and documents required by the Act to be given to or served on any person shall be served in the manner provided for the service of summons. Thus Order 49 Rule 2 of the Civil Procedure Rules, read together with Order 5 Rule 16 of the Civil Procedure Rules both show that it is a requirement that - service of a court order must be made unto a contemnor with proof of knowledge 10 of the court order by a contemnor only being so by proof of service as provided for by the rules of civil procedure. Consequently, an affidavit of service deponed in the manner required by the rules is the only form of actual knowledge of a contemnor of the contents of an extracted court order. - In this application, it is evident that there is no affidavit of service to prove that 15 there was any service of the court order onto the respondents as required by the law cited above. That being th case, then I would find and conclude that the respondent did not have knowledge of the extracted court order. This principle is answered in the negative. - The potential contemnor's failure to comply, that is, disobedience of the 20 iii. order.

Arising from my conclusion above that the that the respondent did not have knowledge of the extracted court order, then he cannot be said to have disobeyed any court order. Consequently, the principle that the potential contemnor failed to comply, that is, disobeyed an existing court order is not proved. This principle similarly is answered in the negative.

The applicant has proved only one principle out of three for the court to find that the respondent is in contempt of court of a court order, that is, the existence of a lawful order. He has failed to prove that the respondent had knowledge of the order and thus failed to comply with the order as I have examined and concluded above.

- That being so I would find and conclude that since two of the critical principles $\overline{5}$ for a contempt of court order to be issued, then the applicant has not on a balance of probabilities proved that the respondents cannot be held liable in contempt of any court order. The application would thus fail and would be dismissed for want of merit. - 8. What Remedies are available to the parties? $10$

Since the application has failed and is dismissed for want of merit, no remedies are thus available to the applicants.

## 9. Conclusion:

This application for orders that the respondent be committed to civil prison or alternatively be made to pay fine for contempt of court orders fails for the 15 reasons I have given above.

As for the costs of this application, I am inclined to take into account the affidavits of the parties herein which clearly show that they are family members and thus in order to promote reconciliation and family cohesion, which is a prerequisite

for peaceful coexistence, I would order that each party should bear their costs. 20 I also sincerely encourage the parties herein to learn to live amicably even when pursuing their lawful rights.

I so order.

Hon. Justice Dr Henry Peter Adonyo Judge

12th July 2024