Rubadiri Shalita & Others v Mutungi & Others (Miscellaneous Application 172 of 2022) [2022] UGHC 127 (29 September 2022)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA

**MISCELLANEOUS APPLICATION NO. 172 OF 2022** [ARISING FROM HIGH COURT CIVIL REVISION NO. 004 OF 2022] [ARISING FROM HIGH COURT CIVIL MISC. APPL. NO. 002 OF 1996] [ARISING FROM CHIEF MAGISTRATE MISC. APPL. NO. 35 OF 1996] [ARISING FROM CHIEF MAGISTRATES COURT CIVIL APPEAL NO. 76

#### OF 1990]

[ALL ARISING FROM CHIEF MAGISTRATES COURT CIVIL SUIT NO. MMB 37/1987]

- 1. JANET RUBADIRI SHALITA - 2. LYNDSAY MUSOMINARI SHALITA - 3. JOY SHALITA - 4. NORAH SHALITA - 5. ISAAC NDAHIRO - 6. AISHA NATUKUNDA KAYOSHE - 7. GEORGE NVEGERI ::::::::::::::::::::::::::::::::::::

#### VERSUS

1. CHARLES MUTUNGI [Claiming to be Administrator

of the estate of the late Christopher Kajundira]

- 2. GODFREY MUHOOZI KAJ UNDIRA - 3. DAVID ASABA

(The Resident District Commissioner, Kiruhura District)

4. JOE KOMAKECH (The District Police Commander, Kiruhura District)

5. ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::

# **BEFORE: HON LADY JUSTICE JOYCE KAVUMA**

#### RULING

#### Background.

Litigation in this matter started three decades ago in 1987 $[1]$ before the Mbarara Grade 2 court in Civil Suit No. MMB 37 of 1987.

In that suit, the first and second Respondents' late father Christopher Kajundira sued the first to fourth Applicants' father the late Bishop Kosiya Shalita.

The suit as gathered from the record, the Late Christopher Kajundira was claiming trespass against the Late Bishop Kosiya Shalita on land situated at Omukyera-Kayoza-Sanga, Nyabushozi Kiruhura District.

Civil Suit no. MMB 37 of 1987 was decided by the learned trial Magistrate in favor of the late Kajundira on 16th June 1990 who ordered that the Late Kajundira remains on the suit land and that the boundary between the two parties remains the water courses.

The Late Bishop Kosiya Shalita being dissatisfied with the decision in Civil Suit no. MMB 37 of 1987 appealed to the Chief Magistrate's Court at Mbarara vide Civil Appeal No. 76 of 1990. The learned Chief Magistrate on 14th July 1994, found in favor of the Late Bishop Kosiya Shalita thus overturning the decision of the trial court. The court found that the evidence on record overwhelmingly proved that the land in dispute belonged to the Late Bishop Kosiya Shalita, that the Late Christopher Kajundira was a trespasser. The court further gave the Late Christopher Kajundira a period of time to remove his crops and any other developments from the land.

The Late Christopher Kajundira did not comply with the orders of the learned Chief Magistrate. The late Christopher Kajundira instead filed an application for leave to appeal to the High Court vide Miscellaneous Application no. 35 of 94 before the Chief Magistrate the same was dismissed. He filed another application in the same court vide Civil Miscellaneous Application No. MMB 02 of 1996 for stay of execution which was also dismissed. He filed another application in this court vide HCCMA No. 02 of 1996 seeking for leave to appeal in this court. The learned trial Judge dismissed the application on 6th September 1999.

The High court upheld the findings of the Chief Magistrate that the Late Christopher Kajundura had been rightfully found a trespasser and ruled that the $1^{st}$ and $2^{nd}$ Respondents' predecessor, his family (including the $1^{st}$ and $2^{nd}$ Respondents) and agents had been lawfully evicted from the suit land. The eviction order issued by the Chief Magistrate was upheld by the High Court.

The Court bailiff on 19th February 1997 acting on a Warrant of Court evicted Kajundura and his family and filed a return in Court confirming the eviction.

Twenty-three years after the above dismissal, the 1st Respondent filed HCT-05-CV-CR-0004-2022 seeking to review and set aside the orders of the learned Chief Magistrate Civil Appeal No. 76 of 1990.

On 20th April 2022, this court dismissed HCT-05-CV-CR-0004-2022.

On 20th June 2022, the current application, Miscellaneous Application No. 172 of 2022 was filed in this Court.

#### Introduction.

[2] This application was brought by Notice of Motion under Section 98 of the Civil Procedure Act, Section 33 of the Judicature Act and Order 50 Rules 1 and 2 of the Civil **Procedure Rules** seeking inter alia for orders that;

- 1. The Respondents be found in contempt of court orders granted in HCMA no. 004 of 2022; HCMA no. 002 of 1996; Chief Magistrate Misc. Appeal no. 35 of 1996; and Chief Magistrate Civil Appeal No. 76 of 1990. - 2. Each of the Respondents pays a fine for the willful and deliberate disobedience of the Court's Orders in the above captioned suits. - 3. The $1^{st}$ and $2^{nd}$ Respondents, their servants or any one claiming title, possession or ownership of the land under them, be ordered to vacate the Applicants' land in Omukyeera village, Kayonza, Nyabushozi, Kiruhura District. - 4. The $1^{st}$ and $2^{nd}$ Respondents be committed to civil prison as a result of their actions in contempt of court orders. - 5. The $3rd$ and $4th$ Respondents pay exemplary damages for the willful and deliberate disobedience of court's orders. - **6.** A declaration and/or order that the $3^{rd}$ and $4^{th}$ Respondents are not fit or proper to hold their positions in the Police and Public Service respectively. - 7. The Respondents pay the costs of this application.

The grounds and evidence supporting this application were laid out in three supporting affidavits deponed by 1st, 6th and 7th Applicants. The application was opposed by affidavits sworn by all the five Respondents. The 1st Applicant filed an affidavit in rejoinder and supplementary affidavit as well.

I have considered all the affidavits touching this matter.

### Representation.

[3] Kampala Associated Advocates represented all the Applicants while Arcadia Advocates represented the $1^{st}$ and $2^{nd}$ Respondents. The 3rd, 4th and 5th Respondents were represented the Attorney General.

Both Counsel for the Applicants and the $1^{st}$ and $2^{nd}$ Respondents filed written submissions in this matter. I have considered their submissions.

### Preliminary objections.

[4] Counsel for the 1st and 2nd Respondents raised four preliminary points by their submissions. These were on locus standi, limitation, jurisdiction and expiration of the order due to execution.

### 1.1. Locus standi.

It was the submission of counsel for the Respondent that the [5] Applicants did not possess the necessary locus standi to bring this application. According to counsel the Applicants were not parties to the order of the Chief Magistrate in Chief Magistrates Appeal No. 76 of 1990 from which they were initiating the current Application. That because of this they have no interest in the said order. That further, they were not the legal representatives of the parties to the suit.

In reply, Counsel for the Applicants submitted that locus standi exists once a party can demonstrate that they are aggrieved and have sufficient interest and rights in the subject matter before court. That the Applicants being the beneficiaries and assignees of the estate of the Late Bishop V Christopher Kosiya, the successful party in Civil Appeal no. 76 of 1990 and MA no. 02 of 1996 have a right to bring the instant application in their capacity.

Garner, B. A., & Black, H. C. [6] According to (2009). Black's law dictionary. 9th ed. St. Paul, MN: West at page 1026, locus standi is defined in Latin to mean place of standing. It is the right of a person to bring an action or to be heard in a given forum. Without the requisite locus standi, a party cannot be said to be properly before court.

It is now settled that if the court can suo moto act, it is immaterial as to who drew the attention of the court to a situation which necessitated court's intervention.

In the Indian decision of S. K. Gupta & Anor vs K. P. Jain & Anor 1979 AIR 734, the Indian Supreme Court, while dealing with the issue of locus standi persuasively held that:

"Where the power is conferred on the court to take action on its own motion the information emanating from whatever source which calls for court's attention can as well be obtained from any person without questioning his or her credentials, moving an application drawing attention of the court to a situation where it must act. Undoubtedly, the court may decline to act at the instance of a busy body but if the action proposed to be taken is justified, valid, legal or called for, the capacity or credentials of the person who brought the situation calling for Court's intervention is hardly relevant nor would it invalidate the resultant action only on that ground." [Emphasis mine]

In Nsangiranabo vs Col. Kaka Bagyenda and Anor (Civil Miscellaneous Application 671 of 2019), this court while dealing with contempt of court observed that:

"Any course of conduct which abuses and makes a mockery of the judicial process and which thus extends its pernicious influence beyond the parties to the action and affects the interest of the public in the administration of justice, is contempt of court -- A party who walks through the justice door with a court order in his hands must be assured that the order will be obeyed by those to whom it is directed. This is because the public has an interest and a vital stake in the effective and orderly administration of justice. The Court has the duty of protecting the interest of the public in the due administration of justice. The power to punish for contempt of court is a special jurisdiction which is inherent in all courts for the protection of the public interest in the proper administration of justice, as Lord Atkin observed in Andre Paul Terence Ambar Appeal No. 46 of 1935 v. The Attorney General of Trinidad and Tobago (Trinidad and Tobago) [1936] 1 All ER 704, [1936] AC 322; Every judicial officer presiding over court proceedings has the power to punish for contempt. However, for contempt that is not committed in the face of the court, this kind of contempt is sui generis. It is usually initiated by a litigant who by motion brings to the attention of court, conduct believed to be in contempt of court. All contempt proceedings are matters between the court and the alleged contemnor. Any person who moves the machinery of the court for contempt only brings to the notice of the court certain facts constituting contempt of court. After furnishing such information he or she may still assist the court, but it must always be borne in mind that in a contempt proceeding there are only two parties, namely, the court and *the contemnor.*" *[emphasis mine]*

This court, has inherent jurisdiction specifically derived from Section 98 of the Civil Procedure Act to make orders as may be necessary for the ends of justice to be met or to prevent abuse of the process of court. Punishing parties for contempt of its orders or judgments is one of the ways this court may prevent abuse of its processes.

From the foregoing authorities, this court, has power to take action suo moto in instances such as contempt of court from information obtained from any person to see to it that the court processes are not abused. This jurisdiction is derived in the interest of protection of the public in the proper administration of justice and maintenance the rule of law.

It therefore follows that a party initiating contempt of court proceedings is merely bringing the attention of court to the facts constituting an alleged contemporaneous act. After furnishing such information, the court will then decide on the right course of action. In bringing such information to court, the question of locus standi should hardly arise.

This preliminary objection is therefore not sustained.

#### $1.2.$ Limitation.

Counsel for the $1^{st}$ and $2^{nd}$ Respondents submitted that this [7] application is barred by statute. That according to Section 3(3) of the Limitation Act, an action shall not be brought upon any judgment after the expiration of twelve years from the date on which the judgment became enforceable. That civil contempt is in its nature a form of execution, enforcement and an appeal of court orders. That such proceedings are governed by the limits of civil jurisdiction of the court.

In their reply, the Applicants' counsel submitted that contempt of court proceedings are not necessarily execution in the ordinary sense. That contempt of court has far wider implications and its main objective is to guard against the undermining of rule of law and judicial authority. That because of this there is no limitation to contempt of court proceedings.

Uganda unlike other jurisdictions does not have a specific [8] legislation expressly providing for limitation of contempt proceedings. This means that the application of statutes of limitation to proceedings for criminal or civil contempt would involve some obscurity and confusion.

Contempt of court is either criminal or civil in nature. Criminal contempt of court is defined as consisting of words which impede or interfere with the administration of justice or which create a substantial risk that the course of justice will be seriously impeded or prejudiced. Civil contempt of court consists of disobedience to the judgments, orders or other process of the court and involving a private injury. (See Halsbury's laws of England/CONTEMPT OF

$\mathcal{H}$

## COURT (Volume 9(1) (Reissue))/1. Introduction/402. Kinds of contempt).

The Constitution of the Republic of Uganda gives powers to this court under Article 23 (1) (a) and (12) to punish for contempt. It is no doubt that this power is granted to courts for the effective implementation of the orders of the courts.

This court has to however consider whether such power can be exercised beyond the period of limitation that counsel for the Respondent submitted is prescribed under Section 3(3) of the Limitation Act.

In the instant application, the Applicants aver that the Respondents should be held in contempt of orders granted in MA 04 of 2022, HCMA no. 02 of 1996, Chief Magistrate Misc. Appn. No. 35 and Chief Magistrates Civil Appeal no. 76 of 1990.

It is an agreed position by both parties to the instant application the original suit from which the instant application emanates was Civil Suit no. 37 of 1987. This suit was finally determined in Civil Appeal No. 76 of 1990.

From annexure "A" attached to the $6th$ Applicant's affidavit in support of this application is a warrant dated 7th February 1997 to a Bailiff named Mr. Sarapio Mugenyi issued to him by the Chief Magistrate of the Chief Magistrate's Court of Mbarara. The warrant was requiring the Bailiff to execute the court's orders in Civil Appeal No. 76 of 1990.

On 20th February 1997, the Court Bailiff, made a return to the court. A copy of the return was attached to the $6th$ Applicant's affidavit in support as annexure "B".

[9] The question this court has to answer is whether an application for contempt of court like the instant application can arise out of Civil Appeal No. 76 of 1990 close to twenty-five years after execution was satisfied in light of Section 3(3) of the Limitation Act. The section provides that:

"3. Limitation of actions of contract and tort and certain other actions. (3) An action shall not be brought upon any judgment after the expiration of twelve years from the date on which the judgment became enforceable, and no arrears of interest in respect of any judgment debt shall be recovered after the expiration of six years from the date on which the interest became due."

In Green Pastures Ltd vs The Cooperative Bank Ltd (In Liquidation) (Miscellaneous Application 172 of 2015), this court took off time to interpret the above section. The court observed that:

"The word "action" is interpreted by section 1 (1) (a) to include any proceeding in a court. The words of the section are: ""action" includes any proceeding in a court". It therefore means that what is barred is proceeding in a court of law for a remedy through an action such as an application or motion asking the court to invoke its powers to provide a remedy. In the context of this application, it means execution proceedings. Interpreting the provision in context, proceedings in respect of execution shall not be brought upon any judgment after the expiration of 12 years from the date on which the judgment became enforceable. More so, the provision means that the process of court will not be used after the expiration of 12 years from the date on which the judgment became enforceable. The word "enforceable" imports with it the process of court which may include coercion or compulsion. It cannot bar a debtor from paying if he or she chooses to do so. It only bars proceedings for enforcement. The expression "judgment" includes the award of interest in the judgment as well as the award of the principal amount."

The primary question under Section 3(3) of the Limitation Act as I understand it is that if the provision is to be applied to contempt of court proceedings, is whether contempt of court proceedings are "actions" within the meaning of the Limitation Act or whether their origin as extraordinary proceedings will serve to keep them as something apart.

In the application before me, in relation to the objection of the Respondents, there are two issues which are material, one is the

date of commission of the alleged contempt and the other is the actual initiation of proceedings for contempt.

[10] In paragraph 11 of the 7th Applicant's Affidavit in support of this application which was unchallenged, George Nvegeri deposed that on $1^\text{st}$ June 2015 and in November 2018, the $1^\text{st}$ and $2^\text{nd}$ Respondents commanded a score of goons who came onto the suit land and forced the Applicants off the land. That it took the intervention of police to evict them.

Under paragraph 12 of the same affidavit, George Nvegeri states that on 24th March 2022, the 1st and 2nd Respondents with their agents and family invaded the land again and forcefully occupied the land.

It is the finding of this court that whereas acts of contempt occurred on various occasions, that is in June 2015, November 2018 and March 2022, it is on the date when the Applicants brought the contempt to the notice of this court that time started running against them if any.

Contempt of court proceedings are extra-ordinary proceedings not falling within the provisions of the Limitations Act. Had it been the intention of the legislature to include them, the law makers would have made an express provision for them therein.

To interpret contempt proceedings into the said Act would be placing a muzzle on the inherent jurisdiction of court to protect the sanctity of its orders and decrees as and when it got notice of it.

In Morris vs Crown Office [1970] 1 All ER 1079 Lord Denning while dealing with contempt of court, wrote at page 1080 that:

"The course of justice must not be deflected or interfered with. Those who strike at it strike at the very foundations of our society. To maintain law and order, the judges have, and must have, power at once to deal with those who offend against it. it is a great power $-a$ power instantly to imprison a person without trial – but it is a necessary power."

The Limitations Act not being a specific statute dealing with contempt of court proceedings cannot be applied to such proceedings.

Page 10 of 24

This preliminary objection is not sustained.

# 1.3. Jurisdiction:

[11] It was submitted on behalf of the Respondents that this court did not have jurisdiction to entertain the current application for contempt of court orders of the Chief Magistrate. Counsel for the Respondents submitted that the court with jurisdiction to entertain these proceedings ought to have been the court that issued the order complained of. Counsel relied on the case of Odongo v Atoke (Civil Appeal 127 of 2015)

In reply, counsel for the Applicant submitted that the power of this court to entertain contempt of court proceedings is unlimited and inherent. That since this court in HCMA no. 02 of 1996 made a finding that the $1^{st}$ and $2^{nd}$ Respondents are not bonafide to be on the suit land, it would mean that for the Respondents to get onto the land without overturning these findings of this court would be contempt. That therefore this court has power to enforce the sought orders of contempt to protect its findings. Counsel submitted further that in the case of Lukenge Hakeem vs Namagembe and others (Civil Application 290 of 2020), the Court of Appeal entertained an application for contempt of court arising out of a High Court interim order. That jurisdiction in contempt proceedings is a special jurisdiction which is inherent in all courts of record.

That the decision of the Court of Appeal in **Odong vs Francis Atoke(supra)** being relied upon by counsel for the Respondent is not conclusive on jurisdiction of court in contempt of court proceedings. That although the court recognizes that such applications ought to be before the court that passed the order, the same does not limit a superior court to entertain such an application.

[12] Jurisdiction is defined by the Black's Law Dictionary to mean the power and authority constitutionally conferred upon a court or Judge to pronounce the sentence of the law or to award the remedies provided by law, upon a state of facts proved or admitted referred to the tribunal for decision and authorised by law to be the subject of investigation or action by that tribunal and in favour of

or against (or a res) who present themselves, or who are brought before the court in some manner sanctioned by law as proper and sufficient.

From the above definition, it is clear that jurisdiction would include the power to punish or not to punish. It is trite that jurisdiction is a creature of statute. In Baku Rapheal Obudra and another vs Attorney General (SCCA no. 1 of 2005) the Supreme Court held that:

"Courts are established directly or indirectly by the constitution and that their respective jurisdictions are accordingly derived from the constitution or other laws made under the authority of the constitution."

It therefore follows that a decision made by a court without jurisdiction is a nullity. (See Peter Mugoya vs James Gidudu and another [1991] HCB 63).

As I have already pointed out earlier in my decision, there is no specific law that specifically provides for proceedings for contempt of court. However, the jurisdiction of this court to punish for contempt of court is derived from Article 23 (12) of the 1995 Constitution of Uganda.

It would therefore follow that since no special legislation has been enacted in regard to contempt of court proceedings, it is only when the court decides to take action and initiates a proceeding for contempt that it assumes jurisdiction to punish for contempt. The exercise of the jurisdiction to punish for contempt commences with the initiation of a proceeding for contempt, whether suo moto or on a motion or reference. (See also for example in Baradakanta Mishra vs Mr. Justice Gatikrusha Mishra (1975) 1 S. C. R 524).

I agree with the submissions of both counsel on the decision of the Court of Appeal in **Odong vs Francis Atoke(supra)** which binds this court that applications for contempt of court ought to be made in the in first instance before the court that made the order from which contempt is alleged. This is for obvious reasons; that it is that court with an upper hand regarding the facts from which the contempt of court proceedings emanate.

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**Section 14** of the Judicature Act Cap. 13 gives this court unlimited original jurisdiction in all matters and such appellate and other jurisdiction as may be conferred on it by the Constitution, the Judicature Act or any other law. Subsection 2(c) of the same Act provides that:

"(2) Subject to the Constitution and this Act, the Jurisdiction of the High Court shall be exercised:

(c) Where no express law or rule is applicable to any matter in issue before the High Court, in conformity with the principles of justice, equity and good conscience."

To punish for contempt of court is a special jurisdiction conferred on every judicial officer for the protection of the public interest and for the proper administration of justice. The sum-total of **Article 23(12)** of the 1995 Constitution and **Section 14** of the Judicature Act, Cap. 13 give this court special jurisdiction to handle this application in conformity with the principles of justice, equity and good conscience.

Be that as it may, this court already made a pronouncement in regards to Chief Magistrate Civil Appeal no. 76 of 1990 in High Court Civil Misc. App. No. 2 of 1996. This court is therefore appraised of the court order in Chief Magistrate Civil Appeal no. 76 of 1990 and facts pertaining to it as laid out in the application before me.

The preliminary objection is therefore not sustained.

## 1.4. Execution of the order closed the case.

[13] I have examined the submissions of both counsel in regards to this preliminary point and my finding is that it has been sufficiently handled in my resolution of the above preliminary points. I therefore do not find merit in delving into this objection. It is not sustained given my findings herein above.

## The merits of the application.

[14] This court in Nsangiranabo vs Col. Kaka Bagyenda and Anor (supra) made a restatement of the principles that a party claiming contempt of court ought to establish. These are:

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- The existence of a lawful order. - 2. Potential contemnor's knowledge of the order. - 3. Potential contemnor's failure to comply, that is, disobedience of the order.

#### $1.1.$ Existence of a lawful order.

[15] It was an agreed fact by all the parties to this application that there exists an order made by the learned Chief Magistrate of Mbarara on 14th July 1994 in CM CA no. 76 of 1990 in which the father of the 1st and 2nd Respondents were declared trespassers on the suit land.

What is in contention according to counsel for the $1^{st}$ and $2^{nd}$ Respondents is that the orders ensuing from the various applications from decision of the trial Chief Magistrate on 14th July 1994 in CM CA no. 76 of 1990 were not clear, vague, ambiguous and not capable of enforcement.

That in Misc. Appn. No. 2 of 1996, the Application was for leave for appeal. Save for the court declining to grant the application, there was no order capable of violation or enforcement.

That in Misc. 04 of 2022, it was an application for review of the orders in CMCA no. 76 of 1990. This court declined to review its orders. The order was not capable of being executed or violated.

That the order of the Chief Magistrate in CM CA no. 76 of 1990 was specific to Christopher Kajundura the $1^{st}$ and $2^{nd}$ Respondent's father and not directed to the Respondents who were not parties to the appeal to do or abstain from doing anything.

[16] It is now trite that a party who knows of an order whether the order is null or irregular cannot be permitted to disobey it. (See Stanbic Bank & ors vs Commissioner Uganda Revenue Authority).

Whereas the Applicants refer to Misc. Appn. no. 2 of 1996, Misc. and Misc. Appn. 04 of 2022, it is for purposes of creating a nexus with the main suit, that is, the orders of the Chief Magistrate's

![](0__page_13_Picture_11.jpeg)

Court in CM CA no. 76 of 1990. All the applications had a bearing on the said orders.

My reading of the application as a whole, points this court to only one suit, this is CM CA no. 76 of 1990. All the evidence tendered into court pertaining this application points to the orders made in that suit. The question in issue in the application at hand is whether there is any contempt whatsoever of the said suit.

It cannot therefore be said that the various applications that arose out of CM CA no. 76 of 1990 can be severed from it and the suit is handled exclusively.

It is settled now that a person not a party to a cause or matter, who obtains an order or in whose favour an order is made, is entitled to enforce obedience to it by the same process as if he were a party; and a person not a party against whom any judgment or order may be enforced is liable to the same process for enforcing obedience to it as if he or she were a party. (See Halsbury's laws of England/CONTEMPT OF COURT (Volume 9(1) (Reissue))/1. Introduction/468. Non-parties and Re Floyd (1909) 53 Sol Jo 790 at 801).

I therefore do not agree with the submission of counsel for the 1st and $2^{nd}$ Respondents that the 1st and $2^{nd}$ Respondents were not bound by the orders made by the Chief Magistrates Court in CM CA no. 76 of 1990.

I therefore find that the first element of existence of a lawful order of court in CM CA no. 76 of 1990 is satisfied.

#### $1.2.$ Potential contemnor's knowledge of the order.

[17] The general principle is that a person cannot be held in contempt without knowledge of the order. A party who knows of an order regardless of whether, in view of that 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. It is not for that party to choose whether or not to comply with such order. The order must be complied with. (See Ssekaana J in Nsangiranabo vs Col. Kaka Bagyenda and Anor (supra).

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Learned counsel for the Applicants led evidence that according to paragraphs 10 to 12 of the affidavit in support of the application, the $1^{st}$ and $2^{nd}$ Respondents and their agents or families have violated the court order issued by the Chief Magistrate's court of Mbarara. That in all these occasions, they have used violence and were constructing on the land. Various annexures were attached to the affidavits in this regard and this court took cognizance of them. On the part of the 3rd and 4th Respondents, counsel submitted that they invaded and pitched tents on the land protecting the people doing construction on the land.

That annexure J1, a letter from the Minister of State for Lands cites the court decisions and asks the 3rd and 4th Respondents not to have meetings to entertain matters that were resolved by courts of law.

In his defence, the 1st Respondent by way of affidavit deposed that he is a law-abiding citizen and has never violated or disobeyed any order or decree of the court. Under paragraph 6 of his affidavit, he states that he is aware that the parcel of land in Kimomo village, Kayonza Parish, Kikatsi sub county, Kiruhura District which was the subject matter of CM CA no. 76 of 1990 is being occupied by various people and families and he is not one of them.

Under paragraph 12 of his affidavit in reply he deposes that he is not aware of any orders of the court that directed him or required him as an individual to do or refrain from doing anything in his individual capacity. That he knew that the proceedings in CM CA no. 76 of 1990 were between the late Bishop Kosiya Shalita and the Late Christopher Kajundira as individuals and not between their families and as such he had never been evicted pursuant to the orders therefrom. That the orders from CM CA no. 76 of 1990 did not contain sufficient clarity to define the suit land and were incapable of execution and cannot be enforced against third parties.

On the part of the 2nd Respondent, he deposed that he was also a law-abiding citizen who has never contumaciously violated any order of court. Under paragraph 8 of his affidavit, he deposes that he is not aware of the orders of court in MA no. 4 of 2022, HCMA no. 02 of 1996, CM MA no. 35 of 1996 and CMCA no. 76 of 1990. On the part of the 3rd Respondent, he deposed under paragraph 4 of his affidavit in reply that he was not aware of any previous court orders in the dispute.

The 4th Respondent deposed under paragraph 18 of his affidavit in reply that he was not aware of any previous court orders in the dispute. Under paragraph 22, he deposes that the Applicants have not produced any eviction orders from court.

On his part, the 5th Respondent neither denied or accepted that he had knowledge of the court orders in CMCA no. 76 of 1990.

I have examined the submissions of both counsel and the affidavits of all the parties in the application pertaining this element of contempt, I find that;

- The Applicants have adduced sufficient evidence to i. prove that the 1st Respondent had sufficient knowledge of the court orders in CMCA no. 76 of 1990. This is coupled by his admission under paragraph 13 of his affidavit in reply that he knew that Civil Appeal no. MMB 76 of 1990 and proceedings arising therefrom were between his Late father Christopher Kajundura and the Late Bishop Kosiya Shalita. - The Applicants have failed to adduce sufficient evidence ii. on a balance of probabilities that the $2^{nd}$ Respondent was aware of the orders in CMCA no. 76 of 1990. - Though the 3rd Respondent deposed that he was not iii. aware of the court orders in CMCA no. 76 of 1990, this court has looked at annexure H to the 1st Applicant's affidavit a letter to the 3rd Respondent from the learned Solicitor General written on 18th May 2004. The letter expressly informs the 3rd Respondent of CMCA no. 76 of 1990 and the outcome. Another letter, annexure I was written to the 3rd Respondent on 28th March 2022 by the Hon. Minister of State for lands

informing him of CMCA no. 76 of 1990 and its implications on the dispute.

I find this evidence unchallenged by the 3rd Respondent and overwhelming to prove that the 3rd Respondent was aware of the orders in CMCA no. 76 of 1990.

The 4th Respondent also deposed that he was not iv. aware of the court orders in CMCA no. 76 of 1990. Annexure I2 attached to the 1st Applicant's affidavit in support is a letter written to the Regional Police Commander copied to the 4th Respondent on 13th April 2022 from the Inspector General of Police. The document was unchallenged.

The letter informs the $4^{th}$ Respondent the meetings chaired by the 3rd Respondent regarding the dispute were illegal and attempted to change the decisions of court.

Another letter annexure I3 was written to the Regional Police Commander copied to the 4th Respondent by the Principal Private Secretary to H. E the President of Uganda attaching the court order in CMCA no. 76 of 1990 on 7th April 2022.

I find this unchallenged evidence proof that the $4th$ Respondent was aware of the orders in CMCA no. 76 of 1990.

No evidence was led in proof that the $5th$ Respondent v. was aware of the orders of court. However, from annexure A attached to the affidavit in rejoinder sworn by Joachim Kunta-Kinte an advocate of the Applicants, the 5th Respondent acknowledged that they were aware of the orders of the court. I find this evidence unchallenged by the 3rd Respondent and overwhelming to prove that the 3rd Respondent was aware of the orders in CMCA no. 76 of 1990. That the $3^{\rm rd}$ and $4^{\rm th}$ Respondents were acting on a frolic of their own and should be punished as such.

This element of contempt has thus been proved against the $1st$ , $3rd$ and $4th$ Respondents who had knowledge of the court orders.

## 1.3. Potential contemnor's failure to comply, that is, disobedience of the order.

[18] The general rule is that a potential contemnor is held in contempt for a wilful refusal to comply to a court order. Wilful refusal to comply to a court order occurs where the acts of the alleged contemnor are not casual, accidental or unintentional, and constitute contumacious disregard of the court order. (See Steiner Products Ltd vs Willy Steiner Ltd [1966] 2 ALLER 387). However, contempt may also be committed in the absence of wilful disobedience on the part of the contemnor. (See for example in Stancomb vs Trowbridge UDC [1910] 2 Ch 190 and Knight vs Clinton [1971] Ch 700).

The $7^{th}$ Applicant by his affidavit deposed that the 1st and 2nd Respondents and their families and agents violently invaded the suit land on 1st June 2015, November 2018 and 24th March 2022 and were being protected by police officers deployed by the 3rd and 4th Respondents. That the 1st Respondent after filed an application to this court for review of the Judgment and orders of this court vide MA. No. 4 of 2022 which was dismissed.

The 1st Respondent in his affidavit in reply deposed under paragraph 6 that he was not one of the people occupying the land that was the subject of CMCA no. 76 of 1990. Under paragraph 18, he states that he was never evicted from the land but left it on his own accord in 1999.

However, this court has had the benefit of looking at MA. No. 4 of 2022 which is being referred to by the Applicants and found that it is true that the 1st Respondent was seeking a temporary injunction against the Applicant from being evicted from the land in issue. He cannot again deny having ever been in occupation of the said land. I find his affidavit riddled with deliberate falsehoods.

The 2nd Respondent in his affidavit in reply deposed under paragraph 5 that he was currently occupying and utilizing the land in Nyabushozi, Kiruhura District.

That he found the land vacant and under the control of Kiruhura District Land Board and occupied it. That he has been in occupation of the same since 2002 and the land has nothing to do with the current dispute. That he was not aware of the exact location of the land claimed by the Applicants. This is the same suit land in the current dispute. This shows with no doubt that he is committing albeit accidentally or contempt unintentionally. $2nd$ The Respondent has not provided any evidence to show that he has permission from the Land Board to stay on the suit land.

The 3rd Respondent on his part deposed under paragraph 6 of his affidavit that he had previously visited the suit land together with the District Police Commander and the entire District Security Committee and it was resolved that the police should stay on the land exclusively for security reasons. However, as already pointed out in this ruling, various communications were made to him by his superiors but he did not stop the actions of contempt. In his own affidavit he does not deny the continued deployment on the land.

The 4th Respondent on his part deposed under paragraph 12 of his affidavit that he went together with the 3rd Respondent to the suit land where a meeting was held and it was resolved that police should stay on the land. He was also written to by his superiors as already pointed out in this ruling but he wilfully did not heed to their guidance.

I have examined the submissions of both counsel and the affidavits of all the parties in the application pertaining this element of contempt, I find that there is sufficient proof adduced by the Applicants that the $1^{st}$ , $2^{nd}$ $3^{rd}$ and $4^{th}$ Respondents disobeyed the court order in CMCA no. 76 of 1990.

## Remedies.

[19] The Applicants sought for the following orders from court;

1. That the Respondents be found in contempt of court.

From the above analysis, this court finds the $1^{\rm st}$ $2^{\rm nd},3^{\rm rd}$ and 4th Respondent in contempt of the court orders in CMCA no. 76 of 1990.

This court further finds that the 5th Respondent purged themselves of the contempt when they wrote to the advocates of the Applicants on August 5th 2022 distancing themselves from the actions of the 3rd and 4th Respondents. From the foregoing the 5th Respondent is not in contempt.

2. An order that each of the Respondents pays a fine for the wilful and deliberate disobedience of the court orders.

Counsel for the Applicants by their submissions prayed for what they termed 'a colossal fine' against all the Respondents in order to deter them from committing acts of further contempt.

In the case of Ekau vs Dr. Aceng (Misc. Appn. no. 746 of 2018), this court held that:

> "With regard to the fine for contempt; the purpose of the fine is to send a firm message to the Respondents and other would-be contemnors that. court orders are not issued in vain and ought to be respected and obeyed as long as they remain in force."

This court finds a fine of Ugx 10,000,000/= against $1^{st}$ and 2nd Respondents sufficient punishment to purge the contempt.

In respect of $3^{rd}$ and $4^{th}$ Respondents, this court is compelled to caution them considering their Page 21 of 24

responsibilities to the public and urges them to ensure that they uphold and enforce the law impartially.

3. The $1^{st}$ and $2^{nd}$ Respondents, their servants, agents or any one claiming title, possession or ownership of the land under them, be ordered to vacate the Applicants' land in Omukyeera village, Kayonza, Nyabushozi, Kiruhura District.

Having found the $1^{st}$ and $2^{nd}$ Respondents in contempt of court, their servants, agents or any one claiming title, possession or ownership of the land under them, are hereby ordered to vacate, if still in occupation thereof, of the Applicants' land in Omukyeera village, Kayonza, Nyabushozi, Kiruhura District. This order shall be satisfied in line with the Notice No.2-The Constitution Legal (Land evictions) (Practice) Directions, 2021 issued by the learned Chief Justice.

4. The $1^{st}$ and $2^{nd}$ Respondents be committed to civil prison as a result of their actions in contempt of court orders.

Whereas court has power to order for committal of a person to civil prison for contempt, that power should be exercised with great care. (See Gay vs Hancock (1887) 56 LT 726 and Wilson vs Raffalovich (1881) 7 QBD 553 at 561).

In Adam Phones Ltd vs Goldshmidt [1999] 4 All ER 486, it was held that the overall conduct of the contemnor in regard to the court order ought to be looked at in order to determine the proportion of the contempt in order to ascertain whether they tried to obey the said order in applications for committal and that an application for committal to prison ought to be dismissed with costs where the application is a Page 22 of 24

disproportionate response to a trivial breach of a court order.

The evidence adduced in this application shows that the conduct of the 1st, 2nd, 3rd and 4th Respondents was not only deliberate but also a disregard of the law in line with the court order issued CMCA no. 76 of 1990. This is a clear case warranting committal into civil prison.

However, I will not make such an order in the spirit of conciliation.

I find the fine imposed herein above to be sufficient in the circumstances. Should the Respondents fail to comply with this court's orders under 2 and 3 the Applicants shall be entitled to file an application for Notice to Show cause why the $1^{st}$ and $2^{nd}$ Respondents should not be committed to civil prison.

5. The $3^{rd}$ and $4^{th}$ Respondents pay exemplary and deliberate wilful damages for the disobedience of the court's orders.

Having found as I did under order 2 of this application, I caution the $3rd$ and $4th$ Respondents and sternly warn them against deliberate disobedience of court's orders.

6. A declaration and/or order that the $3rd$ and $4th$ Respondents are not fit or proper to hold their the Police and Public service positions in respectively.

Failure to abide by a court order is a serious offence and once proved against anyone, it carries with it serious consequences.

The 4th Respondent is a member of the Uganda Police Force charged with this duty upholding the rule of law. The 3rd Respondent on the other hand is a Resident District Commissioner charged with the same duty Page 23 of 24

$\mathcal{H}$

upholding the rule of law. One way of doing so is in upholding the decisions of courts impartially.

The $3^{rd}$ and $4^{th}$ Respondents are acting illegally by failing to observe a court order of which they were knowledgeable about. This court therefore cautions the two contemnors from such unlawful conduct.

## 7. The Respondents pay the costs of this Application.

The general rule regarding costs in civil matters is that they follow the event. (See Section 27 of the Civil Procedure Act). The Applicants being the successful parties in this application are awarded the costs of the application.

Dated, delivered and signed at Mbarara this 29th September 2022. . . . . . . . . . . . . . . . . . . .

Joyce Kavuma

Judge