Promised Lands of Praise Limited & Another v Ntalo (HCT-03-CV-MA 91 of 2023) [2024] UGHC 951 (19 July 2024)

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT JINJA**

**HCT-03-CV-MA-0091-2023**

***(ARISING FROM MISCELLANEOUS APPLICATION NO.004 OF 2022)***

***(ARISING FROM HCCS NO.063 OF 2021)***

1. **PROMISELANDS OF PRAISE LTD** 2. **STEVE J BECKER *(suing through***

***Lawful Attorney Edith Nalunkuma)*****:::::::::::::::::::::::::::: APPLICANTS**

**VERSUS**

**CARL WEBSTER NTALO::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

***Contempt of Court***

***Held.*** *Application found to have no merit and it is NOT GRANTED. The Applicants are advised to fix the main suit for hearing to its logical conclusion*

**BEFORE: HON. JUSTICE DR. WINIFRED N NABISINDE**

**RULING**

This Ruling follows an Application brought under **Section 98 of the CPA**, **and Order 41 rule 2(3) and Order 9 of the CPR SI 71-1** seeking for orders that:-

1. The Respondent be arrested and committed into civil prison for Contempt of Court and / or disobeying orders of this Honorable Court made on 6th day of March 2023. 2. The Respondent be fined Shs. 20,000,000/- as a sanction for his contemptuous conduct 3. Costs of the Application be provided for

The above stated grounds are reiterated in the Affidavit in support of the Application deponed by **Edith Nalunkuma,** the gist of which are that:-

1. The Applicants instituted a suit vide **Civil Suit No. 063 of 2021** against the Respondent which is pending before this Honorable Court. 2. Subsequently, the Applicants applied for a Temporary Injunction order vide **Miscellaneous Application No. 004 of 2022** and the same is pending before this Honorable Court. 3. On 06 March, 2023, it was agreed by the parties by consent in the presence of the Respondent and his Counsel Zulayika Takuwa that court would visit Locus on 30th /3/2023 at 2:30pm to establish activities on the suit land. 4. The Applicants further extracted the said Order and served it on the respondent's lawyers M. S. Mwima Waranda & Co. Advocates on the 7th March, 2023. 5. In the meantime, it was also agreed by consent and ordered by court that no trees should be cut down, but logs already cut may be removed by the Respondents. 6. On the 6th March 2023, the Respondent, in the Company of his lawyer, Zulayika Takuwa, his wife Jane Gwitabingi and her son went to the suit property immediately after Court; and the Respondent directed his agents to cut more trees in total violation and contempt of the above Consent Order. 7. The Respondent and/or his agents have up to date continued cutting down trees on the suit land in total violation/disregard of the Consent Order. 8. She advised him to report the matter to Police and inform the L. C III Chairperson Mr. Suuta Abdul and LCI Chairperson of the area M. Mubiko Yasin. 9. Bagemye Emmanuel and other workers of the Applicant called her on several occasions informing her that the Respondent has continued to cut trees despite reporting to the relevant authorities. 10. As a result, she advised Bagemye Emmanuel to record and take photos of the continuous activities and the photos were accordingly taken and sent to her. **See photographs attached hereto and collectively marked as “D"** 11. She also requested Mr. Suuta Abdul L. C III Chairperson Butagaya to visit the site to confirm further what was happening; Mr. Suuta later called her and confirmed that the Respondent and his agents/workers had continued cutting trees and have up to date continued cutting down trees on the suit land in total breach and Contempt of Court Orders. 12. She swears this Affidavit in support of the application for Contempt of Court Order; and whatever is stated herein is true and correct to the best of my knowledge and belief.

The Respondent filed an Affidavit in Reply deponed by **Carl Webster Ntalo** in which he averred that:-

1. The affidavits of Edith Nalunkuma, Bagemye Emmanuel, Bagemye Patrick and Suuta Abdul are tainted with grave false hoods and lies which goes to the basis of the application and ought to be struck off by the Honourable Court. 2. He was advised by advocate aforesaid whose advice he verily believed to be true that:-

* -the Supplementary Affidavits filed on court record dated the 15/4/2023 in support of **Misc. Appln No. 091 of 2023** deposed by Bagemye Emmanuel, Bagemye Patrick and Suuta Abdul were sneaked on court record without leave of court, the Honorable Court be pleased to struck out the same with costs to the respondent. * -the certificate of translation on Supplementary Affidavit of Bagemye Patrick is erroneous, the Honorable Court be pleased to struck out the Supplementary Affidavit. * -paragraph 2 of the Affidavit in Support of the Application is with in his knowledge; he is the Director of the Applicant and any appointments of the first applicant must be authorized by him, in this case he has never appointed Edith Nalunkuma to represent the first applicant in court her actions amount to impersonation. **Attached hereto is a photocopy of Company Form No.8.** * -paragraphs 1, 2, 3 and 4 of the Supplementary Affidavit deposed by Bagenye Emmanuel and Bagemye Emmanuel are not within the knowledge of the respondent the deponent shall be put on strict proof thereof.

1. In specific reply to paragraphs 5 of the Supplementary Affidavit deposed by Bagemye Emmanuel, he was a trespasser on the suit land as such he would not let him deprive him of his interest thereof. 2. Paragraphs 3,4,5,6,7,8,9,10,11,12,13,15,1617,18 and 19 of the supplementary affidavit deposed by Suuta Abdul are not within the knowledge of the respondent, the deponent shall be put to strict proof thereof. 3. Paragraph 3, 4, 5, 6 and 7 of the affidavit in support of the application is admitted. 4. In reply to paragraphs 6,7,8,9,10 and 11 of the Supplementary Affidavit deposed by Bagemye Emmanuel, the tress where cut before the consent order by the Honorable Court on the 6/3/2023 and only transported out of the suit land after the aforesaid 6/3/2023. 5. Paragraph 8 of the Affidavit in Support of the Application is not admitted; and in specific reply to paragraph 9 of the Affidavit in Support of the Application, Paragraph 13 of Supplementary Affidavit deposed by Bagenye Emmanuel the respondent avers as hereunder ;- 6. Bagemye Emmanuel is not a worker of Promise lands of Praise. 7. On the 6/3/2023 Counsel Zulaika Takuwa has never visited his tree plantation or the area where the plantation is found. 8. He has never directed anybody to cut trees after the Consent Court Order dated the 6/3/2023. 9. In reply to paragraph 10, 11,and 12 of the Affidavit in Support of the application and paragraphs 14,15,16 ,17 of the Supplementary Affidavit of Bagemye Emmanuel are not known to him and the deponent shall be but to strict proof thereof 10. In rebuttal to paragraph 12 of the Affidavit in Support of the Application, the pictures of logs lying down are for the logs of trees which had been cut down by the respondent before the 6/3/2023. 11. Paragraph 13 and 14 of the Affidavit in Support of the Application are not in the knowledge of the respondent as he has never seen Suuta Abdul on his tree plantation. 12. In reply to paragraph 15 of the Affidavit in Support, the deponent's Affidavit in Support is tainted with grave false hoods and she shall be put on strict proof thereof. He has never cut trees after agreeing and consenting to not cut any more trees on the suit land. 13. In reply to paragraph 16 of the Affidavit in Support, he has at all material times observed Court Orders and Rules, the Application is brought in bad faith and he prayed that the same be dismissed with costs. 14. In reply to paragraph l8 ,19,22,23and 24, of the Supplementary Affidavit deposed by Bagemye Emmanuel, the information herein is tainted with grave falsehoods, the deponent shall be put to strict proof thereof. 15. In reply to paragraph 20 and 21 of the Supplementary Affidavit deposed by Bagemye Emmanuel, the logs which were transported are the trees which were cut down before the Consent Order reached on 6/3/2023 with knowledge of the respondent. 16. By reason of the matters stated herein the Applicant's complaints and claims under the Application are baseless and unfound. 17. He depose this Affidavit in Reply to the Affidavits deposed by Edith Nalunkuma and Bagemye Emmanuel in strong opposition of the Applicants' Application; and whatever is stated herein is true and correct to the best of his knowledge save for what is stated under paragraph 5 and 6 which is true and correct as per the information and advice the source whereof is disclosed therein.

**In rejoinder**, the Applicant deponed that:-

1. The allegations contained in paragraph 3 of the respondent's affidavit in reply are denied in toto and the Respondent shall be put to strict proof thereof. 2. In specific reply to paragraph 4 of the affidavit in reply he wished to state that the supplementary affidavits referred to were filed together with application on the same day and the Respondent's objection to their filing is misconceived. 3. The contents of paragraph 5 of the affidavit in reply are equally misconceived as the certificate of translation is proper and valid both in form and substance and the respondent shall be put to strict proof of his allegations. 4. Paragraph 6 of the affidavit in reply are completely false and misleading as the Respondent who has never been a shareholder of the Applicant Company was relieved of his duties as a temporary director and replaced by the Board of Directors through a resolution passed on the 26th of November, 2019. Refer to certified copy of the resolution and letter dated 4/12/2019 attached hereto as annextures "A" &B" respectively. 5. In specific reply to paragraph 8 of the affidavit in reply I wish to state that Bagemye Emmanuel has never been a trespasser upon the suit property because he is authorized to utilize the same and the Respondent shall be put to strict proof of his allegations. 6. The contents of paragraph 11 of the affidavit in reply are equally false since after the said date; 6th March, 2023 the Respondent deliberately continued cutting trees alongside ferrying out what had earlier been cut, clearing the entire plantation in total disobedience of the Court Order which was within his knowledge. 7. In response to paragraph 13 of the affidavit in rejoinder Bagemye Emmanuel is well known as a worker of the 1" Applicant Company and was evicted from the suit property by the Respondent in violation of a court order which shows the Respondent's high handed behavior of defying court authority. 8. In further reply to paragraph 13 of the affidavit in reply, she wishes to reiterate that on the 6th March, 2023 the Respondent together with his lawyer Zulaika Takuwa were at the suit property of Promise lands of Praise and that the Respondent failed to comply with court orders right from the date it was issued and continued cutting trees. 9. Paragraphs 14, 15, 16, 17, 18, 19, 20, 21, 22 and 23 the trees and logs which were cut before the order was issued were ferried out of the suit property as the Respondent with his agents continuously disobeyed the court order even after he was written to. 10. That in reply to paragraph 18 the Respondent has made it a routine to abuse court orders. In further reply thereto this Honorable Court issued orders in **Miscellaneous Application No. 04 of 2022** not to evict any workers and the Respondent in total disregard and disrespect of the same violated the order and evicted the workers and this is not the first time he is defying court orders. 11. That by the time the Order was issued, half of the entire plantation had been cleared; and the Respondent continued cutting more trees despite being served with the order until all trees were cleared.

**REPRESENTATION**

When this application was presented before me for hearing, the Applicants were represented by learned counsel Mr. John Isabirye jointly of M/S. Birungi, Nalunkuma & Co. Advocates and M/S. Isabirye & Co. Advocates while the Respondents counsel was absent but were represented of M/S. Mwina, Wananda & Co. Advocates.

**BACKGROUND**

The background, the Applicants filed **Miscellaneous Application No.004 of 2022** for a Temporary Injunction on 18/01/2022. The matter was fixed for hearing on 04/02/2022, but it did not take off. On 15/02/2022 Counsel Bernard Okello appeared and held brief for Counsel John Kenneth Babumba. Counsel applied for more time to rejoin the Court adjourned the matter to 09/03/2022, but restrained both parties not to sale the suit property or evict anybody from the suit property. The Order was extracted pending determination of the main application.

Before disposal of the main application, the Respondent raised a complaint that the Applicants had violated their own order. A hearing and investigation was conducted that established that all sugar grown by the Respondent on the suit property was resourced by the Applicants. There were also allegations that, the Applicants also sold the Respondent's personal crops under the guise that they resourced their plantations and maintenance.

The Learned Deputy Registrar in his ruling was of the view that such claim needs a proper suit with clear claim. On the violation of the Court Order issued on 15/02/2022, the Order restricted eviction and sale of the suit property. The alleged sale of the Respondent's crops within and outside the suit property seems a bit outside the protection the order intended to provide. No sanction can be meted out of that at this time.

**THE LAW**

**Section 98 of the CPA**,

*"Nothing in this Act shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court".*

This section empowers the court to grant any orders in all cases in which it appears to the court to be just and convenient to do so to ensure that justice is not only done, but seen to be done.

**Order 41 rule 2(3) of the CPR SI 71-1**

*“2. Injunction to restrain repetition or continuance of breach*

*(3) In cases of disobedience, or of breach of any such terms, the court granting an injunction may order the property of the person guilty of the disobedience or breach to be attached, and may also order the person to be detained in a civil prison for a period not exceeding six months unless in the meantime the court directs his or her release.*

And

**Order 9 of the CPR SI 71-1**

1. **Consolidation of suits**

Where two or more suits are pending in the same court in which the same similar questions of law or fact are involved , the court may, either upon the application of one of the parties or of its own motion, at its discretion, and upon such terms as my seem fit-

1. Order a consolidation of those suits; and 2. Direct that further proceedings in any of the suits be stayed until further order.

**PRELIMINARY OBJECTION**

The Respondents raised a Preliminary Objection that under paragraph 5 of the Affidavit in Reply, the Respondent stated thus *“that he was advised by his counsel Zulaika Takuwa, which information he verily believes to be true* that *the certificate of translation on Supplementary Affidavit of Bagemye Patrick is erroneous, the Honourable Court be pleased to strike out the Supplementary Affidavit”.*

They prayed that the Supplementary Affidavit be struck off from court record as it does negate **section 2 of the Illiterates Protection Act.**

**In reply**, learned counsel for the Applicants submitted that the Respondent's contention that the Supplementary Affidavit of Bagemye Patrick be struck out because the certificate of translation does not include the address of the translator Michacl Isiko is misconceived. That the accidental omission to include the address of the translator in the certificate of translation is a mere procedural irregularity which does not go to the root of the affidavit and is thus curable by **Article 126 (2) (c) of the Constitution of the Republic of Uganda 1995.** The said provision enjoins court to administer substantive justice without undue regard to technicalities.

Additionally, that there is evidence before court to show that the Respondent suffered or is likely to suffer any prejudice by the accidental omission to include the address in the certificate of translation. They therefore invited court to find that the accidental omission to include the address of Michael Isiko in the Certificate of Translation to the Supplementary Affidavit of Bagemye Patrick is a mere technicality that is curable by **Article 126 (2) (e) of the Constitution of the Republic of Uganda 1995;** and that the respondent shall not suffer any prejudice if the application is determined on its merit.

**In resolving this preliminary objection**, I have examined the provisions of **section 2 of the illiterates Protection Act** under the head of verification of signature of illiterates provides that;-

‘*No person shall write the name of the illiterate by way of signature to any document unless such illiterate shall have first appended his or her mark to and any person who so writes the name of the illiterate shall also write on the document his or her own true and full name and address as witness and his or her so doing shall imply a statement that he or she wrote the name of the illiterate by way of signature after the illiterate had appended his or her mark ,and that he or she was instructed so to write by the illiterate and that prior to the illiterate appending his or mark ,the document was read over and explained to the illiterate’*.

The section provides that the person, in this case Michael Isiko who wrote the name of the illiterate shall also write his full name and address. In that instant application the certificate of translation on the Supplementary Affidavit of Bagemye Patrick does not include the address of the translator Michael Isiko.

This preliminary objection is UPHELD. The Supplementary Affidavit be struck off from court record as it does negate **section 2 of the Illiterates Protection Act.** The Application remains supported by one Affidavit.

**The second Preliminary Objection** is to the effect that under paragraph 6 of the Affidavit in Reply to the Application, the respondent deposed that he is advised by their Counsel Zulaika Takuwa, which information verily believes to be true, that paragraph 2 of the Affidavit in Support of the Application is within his knowledge. That he is the Director of the applicant and any appointments of the 1st Applicant must be authorized by him, in this case he has never appointed Edith Nalunkuma to represent the first applicant in court and her actions amount to impersonation.

That the deponents of the Affidavits in Support of the Application and Supplementary Affidavit have no authority to depose and or affirm the Affidavit in Support of the Application as they have no authority to do so from the Respondent who happens to be the Director of the first applicant; as such the application has no backbone for its formation.

**In reply,** it was submitted that the deponents of the Affidavits in Support of the Application and Supplementary Affidavit had no authorization by the Respondent as Director of the 1st Applicant Company. That the submission by the Respondent's counsel with regard to the above preliminary objection is not only misconceived, but also aimed at misleading court in so far as the Respondent's claims of being a Director of the 1st Applicant are completely false in light of the evidence adduced in paragraph 7 of the Applicants' Affidavit in Rejoinder indicating that the Respondent was removed from the position of Director of Promise lands of Praise Ltd. on 26th of November, 2019.

That the earlier appointment of the Respondent as Company Director of the 1st Applicant in 2013 as per the Company Form 8 attached to his Affidavit in Reply was revoked by a Resolution of the Company passed on 26th of November 2019. **(A certified copy of which is attached as annexure "A” to the Applicants Affidavit in Rejoinder).** That in the absence of any evidence to show that the Respondent has since been re-appointed as Director of the 1st Applicant, it is inconceivable that the deponents of the Affidavits in Support and Supplementary Affidavits had to obtain any authorization from the Respondent to swear the affidavits as contended by the respondent.

They therefore submitted that the submission by the Respondent's counsel that the application has no back born for its formation is not only strange, but also aimed at misleading court. They prayed that court finds that the respondent's preliminary objections are misconceived and lack any merit and should be overruled.

**In resolving this Preliminary Objection**, I have examined **Annexure ‘A’** to **Miscellaneous Application No.91 of 2023,**whichis aPowerof Attorney by Steve J. Becker, the Executive Director of Promise lands of Praise Ltd in his capacity as a donor to retain Ms. Edith Nalunkuma as donee to do any work in his names and specifically in paragraph 3. It reads;-

1. *“To commence, prosecute, discontinue, or defend all action or other legal proceeding and sue and cake lawful ways and means and legal and equitable remedies, procedures in my name for collection or recovery of items, money, including collection of my accounts receivable in which I have or may acquire an interest in and deliver to me and in my name all endorsements, receipts or other sufficient discharges for the same”.*

From the above, it’s this court’s finding therefore, that the said Ms. Edith Nalunkuma is a person legally recognized to deponent to act on any matters pertaining to the Applicant Company and therefore her evidence is valid.

The Preliminary Objection FAILS.

**RESOLUTION OF THE APPLICATION**

Learned Counsel for the Applicants raised issues to be determined in the Application to wit;-

1. Whether the Respondent is in contempt of court? 2. What remedies are available to the parties?

**ISSUE 1: Whether the 1st Respondent is in Contempt of Court?**

It was submitted for the Applicants that “*Contempt of Court consists of* *conduct which interferes with the administration of justice or impedes or perverts the course of justice... Civil Contempt consists of a failure to comply with. A judgment or order of a court or breach of an undertaking of court."* -**Osborne's Concise Law Dictionary, F P. 102 A Thomson Company.**

That according to **Halsbury's laws of England (4th Edition paragraphs 284, 458),** it is provided thus:-

*"It is civil contempt to refuse or neglect to do an act required by a judgment or order of the court within the time specified in that judgment, or to disobey a judgment or order requiring a person to abstain from doing a specific act".*

Contempt of Court was also canvased in the case of ***Megha Industries Ltd vs. Conform Uganda Ltd HCMC No. 21 of 2014*** where the judge held that contempt of court exists where there is a lawful Court Order and the potential contemnor must have been aware of the Court Order and failed to comply with the Order. The conditions which must be proved by an applicant in Contempt of Court proceedings are as follows:

a) The existence of a lawful court order.

b) The potential contemnor's knowledge of the court order.

c) The potential contemnor's failure or refusal to comply with the order or disobedience of the order.

(**See*: Hon. Sitenda Sebalu vs Secretary General of East African Community Ref. No. 8 of 2012; Dr. Charles Twesigye vs Kyambogo University HC Misc. Application No. 120 of 2017 and Angelina Lamunu Langoya vs Olweny George William HCC Misc. Application No. 30 of 2019)***

They submitted that the principle of law is that the whole purpose of litigation as a process of judicial administration is lost if Orders by Court through the set judicial process, in the normal functioning of the courts are not complied with in full by those targeted and/or called upon to give due compliance.

Further, it is not for that party to choose whether or not to comply with such order. (***See: Housing Finance Bank Ltd. & Anor vs. Edward Musisi, H. CC. Misc. Application No. I58 of 2010)***

1. **Existence of a lawful order and Potential contemnor's knowledge of the order**

In respect of the above, they submitted that the general principle is that a person cannot be held in contempt without knowledge of the court order. The Applicants argued that in the instant application, it is not in dispute that there exists a lawful consent order which was issued by this court on the 6th of March, 2023 vide **HCMA No. 004 of 2022 (Arising out of Civil Suit No. 063 of 2021).**

It is also not disputed that the Respondent had actual knowledge of existence of the said order. Refer to paragraphs 5, 6 &7of the affidavit in support of the chamber summons deponed by Ms. Edith Nalunkuma; and a copy of the order attached thereto as **annexure “B".**

**In reply**, it was submitted for the Respondents submitted that Civil Contempt occurs when the contemnor willfully disobeys a court order. contempt of court as defined by Lord Russel of Killowen L. C. J in ***R vs Gray [1900]2 Q. B 36 at 40*** as *“any act done or writing published calculated to bring a court or a judge of the court into contempt, or to lower his authority is a Contempt of Court”.*

That in ***Brenda Nambi vs Raymond Lwanga Miscellaneous Application No. 213 of 2017*** where principles of an action to amount to contempt of Court were pronounced by Lady Justice Flavia Ssenoga Anglin as follows :

a) Existence of lawful court orders

b) The potential contemnor's knowledge of the court order.

c) The potential contemnor's failure or refusal to comply with the order or

disobedience of the order.

On **Existence of a lawful court order and potential contemnor's knowledge of the Court Order,** they replied that the Respondent is in knowledge of court order as it was agreed between the parties on the 6th day of March 2023, but what is contested; and not true is that the Respondent defied the aforesaid Court Order.

1. **The potential contemnor's failure or refusal to comply with the Order or disobedience of the Order.**

It was submitted for the Applicants that the question that this Court has to investigate is whether the Respondent failed, refused and /or disobeyed the said court order. The acts alleged to constitute particulars of disobedience are that the Respondent directed his agents/workers to cut more trees on the suit land in total violation and contempt of the Consent Order.

That in paragraph 9 of the affidavit in support of the application, the deponent, Edith Nalunkuma states that on the 6th March, 2023, she received a call from Bagemye Emmanuel, one of the workers on the site informing her that the Respondent went on the suit property after court and directed his agents/workers to cut more trees. This evidence is corroborated by the contents in paragraph 13 of the supplementary affidavit in support of the application deponed by Bagemye Emmanuel together with the still photographs attached onto the Affidavit in Support as group ***annexures "DI-D9".***

That the above evidence is further corroborated by the supplementary affidavits of Suuta Abdul the L. C. III Chairperson of Butagaya Sub-county where the suit land is situated in paragraphs 13, 14, 15, 16 &t l7 and Bagemye Patrick in paragraphs 9,10,12,13 & 14. Specifically, in paragraph l6 of the supplementary affidavit of Suuta Abdul, he states that he moved to the site and confirmed the cutting of trees by certain people who told him that they were acting on the orders of the Respondent, whereupon he took some photos.

Additionally, in paragraph 14 of the supplementary affidavit of Bagemye Patrick, he states that he witnessed the Respondent and his agents cutting trees on several occasions on the suit land specifically on 6th March,2023, 7th April, 2023, 15th April, 2023, 17th April, 2023, 19th April, 2023 and 20th April, 2023.

That the above averments/evidence in the respective Supplementary Affidavits were neither disputed by the Respondent in his Affidavit in Reply, nor were they challenged/controverted through cross-examination of the respective deponents by them. That the Respondent's counsel submission on the law is that failure to rebut a fact specifically traversed in an affidavit amounts to a total admission. Such facts are taken by the court as admitted by the opposite party. ***(See: Prof. Oloka Onyango & 9 Ors vs. Attorney General SC. Constitutional Petition No.8 of 2014 & Male. H. Mabirizi Kiwanuka vs. A. G, HCMA No. 089 of 2022).***

The Applicants invited court to take the above unchallenged facts as having been admitted by the Respondent and to enter judgment on account of that admission. For this proposition, they cited the case of ***Nelson Kawalya vs. Sebanakita Hamis (Civil Miscellaneous Application) 1534 of 2020***, where court held that where an admission of facts is made, a judgment on admission may, upon application by a party be entitled at any stage of the suit.

That the main purpose of the Consent Order issued on the 6th of March, 2023, was to maintain the status quo until the disposal of the main suit víde **HCCS. No. 063 of 2021,** which is pending determination before this Honorable Court; and to enable court to visit the locus on 30/3/2023, to establish activities on the suit land situated at Nabukose village, Nawampanda Parish, Butagaya Sub-county in Jinja District, however, the status quo of the suit land has ultimately been altered by the Respondent's disobedience of the Consent Order. They invited the Honorable court to answer issue one in the affirmative.

**In reply as to the** **potential contemnor's failure or refusal to comply with the order or disobedience of the Order,** the Respondent averred that he has never violated the Court Order issued on the 6/3/2023 as it was out of consent of both parties that the order was reached. That in his Affidavit in Reply to **Misc. Application No. 091 of 2023** particularly so paragraph 11, the Respondent states that the trees were cut before the Consent Order was reached by both parties before the Honorable Court and only transported out of the suit land after the aforesaid 6/3/2023.

Paragraph 13 of the Affidavit in Reply the respondent avers as follows:

1. *Bagemye Emmanuel is not a worker of promise lands of praise.* 2. *On the 6/3/2023 counsel Zulaika Takuwa has never visited his tree plantation or the area where the plantation is found.* 3. *That he has never directed anybody to cut trees after the consent court order dated the 6/3/2023”.*

Paragraph 15 of the Respondent's Affidavit in Reply states that, the picture of the logs lying down are for the logs of trees which had been cut down by the Respondent before the Court Order issued on the 6/3/2023. Paragraph 17 of the affidavit in reply to the application the Respondent states that he has never cut trees after agreeing and consenting not to cut any more trees on the suit land.

Under paragraph 11-16 of the Affidavit in Reply, the Respondent seems to make evasive denials to fall within the court order issued on 6/3/2023 that all the trees carried away were those that had been cut down before the Order. Under paragraph 20 of the Affidavit in Reply the respondent states that paragraph 20 and 21 of the supplementary affidavit deposed by Bagemye Emmanuel, the logs which were transported are the trees which were cut down before the Consent Order reached on the 6/3/2023.

The Respondent totally disputes the averments that he defied the court order issued on the 6/3/2023, it was out of his own will that he consented to the order dated the 6/3/2023, he cannot turn around to defy an order reached due to his own good will to resolve the matter at hand amicably. They cited the case of ***Okwonga George and Another vs Okello James Harrison Misc. Application No. 132 of 2021***,it was held *inter alia* that there was no court order which the Respondent violated by the alleged user of the suit land. He cannot certainly be in contempt of an order which was wholly given in his favour.

Reference be made to paragraphs 11, 13, 15, 17, 18, 19, 20, and 21 of the affidavit in reply of the application clearly show that the respondent did not agree to the content of the application nor the orders sought from the Honourable Court. That counsel for the Respondent was not in court the time when the application came up for hearing nor were the deponents of the Affidavits in Support of the Application and Supplementary Affidavits came up for hearing, particularly so Nalunkuma Edith, Bagemye Patrick, Bagemye Emmanuel and Suuta Abdul.

The deponents to the Affidavit in Support of the application where not in attendance of court, the time the application came up for hearing nor was counsel for the respondent present how then would cross-examination of deponents be made by Counsel for the Respondent that very moment the matter came up for hearing.

The afore stated statement is made to mislead the Honorable Court as Counsel for the applicant is well aware of the procedure through which examination of a deponent in an application is conducted in Court. The Respondent states that, he has never violated consent court order dated the 6/3/2023 and that **Misc. Application No. 091 of 2023**is misconceived, brought in bad faith the same be dismissed by the Honorable Court. The purpose of the Consent Order was to preserve the status quo of the suit land and the same is still intact as after the issuance of the court order court has never visited the suit land as earlier scheduled on the 30/3/2023. That the Deputy Registrar informed parties that court had not liaised with the different stake holders like Uganda police to issue security to the locus visit, therefore court adjourned the locus visit date on its own motion.

They prayed that the Honorable Court to dismiss the application with costs to the Respondent as it has no merit.

**In rejoinder**, learned counsel for the Applicant reiterated their submissions that position/ submission that the Respondent is in contempt and disobeyed the orders of this court and only submit in rejoinder to the Respondents submissions in reply as follows;

Firstly, that Bagemye Emmanuel is a worker of the 1st Applicant whom the Respondent in total violation of an earlier interim orders issued by this court on the 15th February, 2022 not to evict any workers went ahead and forcefully evicted without any authority to enable him carry out unlawful activities onto the suit including cutting of trees which court eventually stopped but he went ahead and cut all the trees.

Secondly, the pictures/ still photographs were taken by the witnesses after the Respondent had removed the logs as authorized by court but then went against the court order by cutting all the remaining trees, besides the respondent did not adduce any evidence to support the claim that the logs had been cut before the Consent Order

Lastly, that whereas the Respondent's counsel in their submissions admit that they were not in attendance in court at the time when the application came up for hearing albeit without advancing any explanation for their absence/ non-appearance are claiming at the same time that because the deponents of the affidavits in support of the application were also not in attendance of court they could not move court to have them cross- examined.

That the said Respondent's submission is totally strange because how then did the Respondent's counsel who were not present in court at the time of hearing the application on account of their own admission expect to cross examine the deponents if these were present in court? Besides there is no evidence on record to show that the Respondent's counsel made any attempt to seek leave of court to cross-examine the deponents to the Affidavits in Support of the Application. Therefore, that Applicants evidence was neither disputed nor challenged and the same remains unchallenged and the same ought to be taken as having been admitted by the Respondent and prayed that this Honorable Court be pleased to allow this application and proceed to grant the reliefs sought there under.

**In resolving this issue,** I have carefully analyzed this Application and taken into account the submissions of both counsel. **Black’s Law Dictionary 7th Edition P. 313** defines contempt of court 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 language, in its presence or so near thereto as to disturb the proceedings or to impair respect due to such a body”.*

Contempt of Court has also been well described in the case of ***Megha Industries Ltd vs Comform Uganda Ltd HCMC No.21 of 2014,*** where it was held that *“Contempt of Court exists where there is a lawful court order and the potential contemnor must have been aware of the court order and failed to comply with the order”.*

It was further elaborated in the case of ***Hon. Sitenda Sebalu vs Secretary General of the East African Community Ref. No. 8 of 2012*** that the conditions which must be proved by the applicant in contempt of court are that;

1. Existence of a lawful order. 2. The potential contemnor’s knowledge of the order. 3. The potential contemnor’s ability to comply. 4. The potential contemnor’s failure to comply with/ disobedience of the order.

It is clear from the record that on 6th /3/2023, the Court directed that it shall visit locus on 30/3/2023 to establish activities on the suit land at Nabukose Village, Nawapanda Parish, Butagaya in Jinja District; and no trees were to be cut, but those already cut should be removed which order was given in the presence of counsel of both parties.

Pursuant to the Order, no evidence was established that more trees were cut down. It is important to first state that the Order was delivered in the presence of counsel for the Respondents who ought to have notified their clients of the need to preserve the *status quo*. This is an indication that the Respondent is fully aware of his obligations in the aforementioned Court Order.

I therefore find that the Respondent were well aware of existence of a lawful Order; and had full knowledge of the order and indeed had ability to comply. This is not denied by the Respondents and since the Orders were directive in nature, I do not need to labour this point; it is answered in the positive.

As to whether there was a potential contemnor’s failure to comply with/ disobedience of the Order, in the case of ***Housing Finance Bank Ltd & Another vs Edward Musisi Misc. Application No.158 of 2010, the Court of Appeal*** held at page 11 that;-

*“…the principle of law is that the whole purpose of litigation as a process of Judicial administration is lost if orders by court through the set Judicial process, in the normal functioning of the courts are not complied with in full by those targeted and /or called upon to give due compliance. Further, it is not for that party to choose whether or not to comply with such order.*

*The Order must be complied with in totality in all circumstances by the party concerned, subject to the party’s right to challenge the order in issue in such a lawful way as the law permits. It was also stated that otherwise to disobey an order of court or offer no explanation for non-compliance to the issuing court, at any party’s choice or whims, on the basis that such an order is null or irregular, or is not acceptable or is not pleasant to the party concerned is to commit contempt of court.”*

The above decision is the correct position of the law; however, in the current Application, the Applicants are relying on photographs attached to the Affidavit in Support of the Application.

I have critically analyzed these photographs and found that much as they show people ferrying logs, the said photographs do not bear any date on which this is supposed to have happened or when they were taken. They cannot therefore be used to prove that this happened after the issuance of the Court Order; and this leaves the Court guessing whether these were the logs which had already been cut and are provided for in the Consent Order that the Respondents should take away or fresh ones cut after the Consent Order was made.

It is not the duty of Court to fill in gaps in the case for each side, but each party must succeed on the strength of its own evidence. My findings and decision on this issue is that the Applicants have failed to provide concrete evidence of the potential contemnor’s failure to comply with/ disobedience of the Court Order.

It is therefore resolved in favor of the Respondent.

**ISSUE 2: Remedies**

The Applicants prayed court for the arrest of the Respondent and committal into civil prison and payment of a fine to the tune Ug. Shs. 20,000,000/- (Uganda shillings Twenty Million only) as sanction for his contemptuous conduct. That Civil Contempt is punishable by way of committal to civil prison or by way of sequestration. It can also be punishable by way of fine or injunction against the contemnor. ***(See: Stanbic Bank (U) Ltd vs. Commissioner General of Uganda Revenue Authority, HCT-MA No.42 of 2010).***

According to the decision of court in ***Barbara Nambi versus Raymond Lwanga, HCT-MA No. 213 of 2017*** citing with approval the case of ***Re Contempt of Dougherty 429, Michigan 81, 97 and (1987)*** it was held thus;

"*Imprisonment for civil contempt is properly ordered where the Defendant has refused to do an affirmative act by the provisions of an order, which cither in form or substance was mandatory in character*."

*Further, that if the contempt consists in refusal of a party to do something which he is ordered to do for the benefit and advantage of the opposite party, the Contemnor stands to be committed until he complies with the order. The Order in such a case is not a punishment, but is coercive to compel the Contemnor to act in accordance with the order of court."*

They prayed that the Respondent be committed into civil prison and/or be ordered to pay the fine for disobeying the orders of this Court.

On Costs, they submitted that the Principle of law is that costs follow the event and are granted at the discretion of court in accordance with application.

**In reply to this issue**, the Respondents submitted that the remedies prayed for by the applicants are in vein as the Respondent has never defied the aforesaid Court Order. The Application instant is brought in bad faith and a waste of courts time as stated under paragraphs 11, 13, 15, 17, 18, 19, 20, and 21 of the affidavit in reply of the Application. The Application be dismissed with costs to the Respondent.

In regards to costs, they submitted that the Application instant be dismissed with costs to the Respondent as costs follow the event as provided under **section 27 of the Civil Procedure Act** as amended.

**In resolving the issue of remedies,** the primary purpose of Contempt is to preserve the effectiveness and sustenance of the power of courts. See ***People vs Krz 35 Misc. App. 643, 656 (1971).*** In the current Application, the court having found the Applicants have not satisfactorily proved the potential contemnor’s failure to comply with/ disobedience of the Court Order, I have not found merit in the Application. It is accordingly dismissed.

It is also clear that the current Application arises from an ongoing suit, the costs shall abide in the outcome of the main suit.

The Applicants are advised to fix the main suit for hearing to its logical conclusion instead of indulging in frivolous Applications that are delaying the completion of the main suit.

I SO ORDER.

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ JUSTICE DR. WINIFRED N NABISINDE JUDGE 19/07/2024**

This Ruling shall be delivered by the Honorable Magistrate Grade 1 attached to the Chambers of the Senior Resident Judge Jinja who shall also explain the right to seek leave of appeal against this Ruling to the Court of Appeal of Uganda.

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**JUSTICE DR. WINIFRED N NABISINDE JUDGE 19/07/2024**