Ssemivule v Lukyamuzi & 3 Others (Miscellaneous Application 1957 of 2024) [2024] UGHCLD 227 (30 September 2024)

## **THE REPUBLIC OF UGANDA**

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

## **[LAND DIVISION]**

#### **MISCELLANEOUS APPLICATION NO. 1957 OF 2024**

#### **ARISING FROM MISCELLANEOUS APPLICATION NO. 3857 OF**

#### **2023**

*ARISING FROM CIVIL SUIT NO. 1534 OF 2023*

# **SSEMIVULE ATANASIO alias BINDIKUMWOYO:::::: APPLICANT VERSUS**

**1. LUKYAMUZI BERNARD**

**2. SSEMANDA JAMADAH 3. KASOZI SWALLE ::::::::::::::::::::::::::::: RESPONDENTS**

**4. SSEMBATYA HENRY**

#### **BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA**

#### **RULING.**

## *Introduction:*

1. This is an application by notice of motion brought under Sections 98 of the Civil Procedure Act Cap 282, Section 33 of

the Judicature Act Cap 16 and Order 1 rule 3, Order 6 rules 19 & 31 Order 52 rules 3 & 13 of the Civil Procedure Rules (CPR) for orders that: -

- i) The Respondents are in contempt of a Court Order vide HCMA No. 3857 of 2023. - ii) The applicant be allowed to amend his plaint and the 1st, 2nd, and 4th Respondents be added to HCCS No. 1534 of 2023 as defendants. - iii) The respondents be imprisoned and pay a fine of Ugx 50,000,000/= for violation/ contempt of a court order vide HCMA No. 3857 of 2023. - iv) The respondents pay Ugx 100,000,000 as compensation to the applicant for the inconvenience and suffering caused. - v) The costs of this application be paid by the respondents.

# *Background;*

2. The Applicant instituted HCCS No. 1534 of 2023 against Kasozi Swalle, Maria Rose Nanyunja, Mugerwa Peter and Nsimbi Moses for trespass on Kibanja at Bataka Cell, Kyengera Town Council, Wakiso District measuring approx. 36 decimals for eviction order, demolition order, compensatory damages, punitive

damages, general damages, interest, permanent injunction and costs of the suit.

- 3. The applicant applied for and was granted a temporary injunction order vide HCMA No. 3857 of 2023 on the 28th March 2024 to restrain Kasozi Swalle, Maria Rose Nanyunja, Mugerwa Peter, Nsimbi Moses and their agents, those acting under authority and or deriving interest from them. - 4. That the respondents have since brought building materials and built a house on the suit Kibanja contrary to the temporary injunction order thus this application.

## *Applicants' Evidence;*

5. The grounds of the application are contained in the affidavit in support of the application deposed by **SSEMIVULE ATANASIO**

**alias BINDIKUMWOYO** and are briefly that: -

- i) That I am the owner of the Kibanja situate at Bataka cell, Kyengera Town council, Wakiso District which was given to me by my late father Desire Kiwanuka alias Lukolokomba Kiggundu Katono Kewaza Kataayi Kibefu Wakikuon and I reside on the same with my family. - ii) That in the month of October and November 2023, KASOZI SWALLE, MARIA ROSE NANYUNJA, MUGERWA PETER

and NSIMBI MOSES (defendants in the main suit) forcefully entered on part of my Kibanja described above and cut down my banana plantation and mango trees on the Kibanja measuring about 36 decimals claiming this portion to be theirs.

- iii) That I filed HCCS No. 1534 of 2023 against Kasozi Swalle, Maria Rose Nanyunja, Mugerwa Peter and Nsimbi Moses for a declaration that the defendants are trespassers, an eviction order, demolition order, compensatory damages, punitive damages, general damages, interest, a permanent injunction and costs. - iv) That I filed HCMA No. 3857 of 2023 for a temporary injunction to restrain Kasozi Swalle, Maria Rose Nanyunja, Mugerwa Peter, Nsimbi Moses, their agents, those acting under their authority and or deriving interest from them pending the determination of the main suit and the application was granted on 28th March, 2024. - v) That with the help of my Advocates of T. Odeke & Co. Advocates, I cleared the order for the temporary injunction from the legal department of Uganda police and the same

was thereafter read to the respondents in my presence on the suit Kibanja.

- vi) That the respondents after hearing the contents of the order for the temporary injunction read to them by the police officer of Nsangi police station, they brought building material and built houses on the suit Kibanja and a criminal case was opened up against them for criminal trespass and abuse of court order vide CRB 497 of 2024. - vii) That the respondents have also come with different people on the suit land with the intention to sell the suit land but I have protested and called the police to arrest them. - viii) That I have been advised by my Advocates from T. Odeke & Co. Advocates whose advise I verily believe to be true that the actions of the respondents constructing on the suit Kibanja when there is a subsisting court order restraining them from building amounts to contempt of the Court order vide HCMA No. 3857 of 2023. - ix) That the actions of the respondents clearly show that they do not respect the Court order which undermines the institutions of the judiciary and public confidence.

- x) That the respondents should be punished for their unlawful actions and abuse of court order herein mentioned by sentencing them to two years' imprisonment, payment of a fine of UGX 50,000,000/= as a fine and Ugx 100,000,000 as punitive as a measure to deter further wrong doers on the suit Kibanja. - xi) That the respondents are threatening to take my remaining Kibanja claiming to have an interest in the same and continuously trespassed and built on the suit Kibanja but I have never sold to them the suit Kibanja or authorized any person to do so hence there is need to add the 1st, 2nd and 4th Respondent on the main suit vide HCCS No. 1534 of 2023 as defendants so that they can justify their alleged claims and the dispute is resolved once. - xii) That adding the 1st, 2nd and 4th respondents to the main suit HCCS No. 1534 of 2023 as defendants will prevent multiplicity of suits arising from the same suit Kibanja, will save Court's time, resources and respondents will not be prejudiced and it is just and equitable for this application to be allowed.

## *2nd Respondent's evidence;*

- 6. The application is opposed to by an affidavit in reply deposed by **SSEMANDA JAMADAH,** the 2nd Respondent and briefly states as below; - *i)* That the application is misconceived, barred in law, an abuse of court process and should be struck out with costs. - *ii)* That in reply to paragraph 4 of the affidavit in support of the application, the Applicant has shown the people he sued over the said Kibanja and I have never been sued over the same and thus with no interest over the same. - *iii)* That the applicant doesn't show the status quo which was available during the grant of Misc. Application No. 3857 which has been tampered with to require the application for contempt. - *iv)* That the application does not disclose any cause of action against me to require this court to add me as a party to Civil Suit No. 1534 of 2023. - *v)* That paragraphs 2-15 of the affidavit in support are denied as there is no any justifiable reason given by the applicant as to why this Honourable Court should find me in contempt of its orders or reason as to why I should be added to this suit.

*vi)* That the applicant's affidavit in support is full of falsehoods as he does not attach any evidence to back up his allegations and I pray that this Honorable Court dismisses this application with costs as the applicant has not shown this court any injuries, I have personally inflicted on him.

## **Rejoinder**

- i) That the 2nd respondent together with the 1st, 3rd and 4th respondents have trespassed on part of my Kibanja where the 2nd respondent was personally in charge of the construction of the houses on the suit Kibanja claiming that he purchased part of the suit Kibanja from Nsimbi Moses (the 4th defendant in the main suit) and he does not care about the existence of the Court order. - ii) That soon after the temporary injunction was granted by this Court on the 28/3/2024, the 2nd Respondent together with the other respondents started trespassing on the suit Kibanja to wit forcefully brought building material on the suit Kibanja.

- iii)That the actions of the 2nd respondent constructing on the suit Kibanja when there is a subsisting court order vide HCMA No. 3857 of 2023 restraining him and every person from building or changing the status quo of the suit Kibanja amounts to contempt of court. - iv) That the time I sued the 3rd respondent and other defendants in the main suit, I did not know that the 1st 2nd and 4th Respondents had any claim in the suit Kibanja until the court order herein mentioned was read to the respondents on the 27th May 2024 then started constructing on the suit Kibanja and making claims.

# *4th Respondent's evidence;*

- 7. The application is opposed to by an affidavit in reply deposed by **SSEMBATYA HENRY,** the 4th **Respondent** and briefly states as below; - *i)* That I own a Kibanja at Bataka Cell, Kyengera Town Council of which I took possession in January 2023, I placed building materials thereat, a fact known by the Applicant who never raised any issues of ownership at all.

- *ii)* That when the construction was completed, I rented it out and the tenants have been paying me to date and the applicant has never raised any issues. - *iii)* That at the time the Applicant filed his suit in December 2023, I had already constructed the premises and by May when the order was obtained from this Honourable Court I had already constructed and the premises were duly functional with tenants. - *iv)* That I did not know of the Court order in respect to the suit land until around May or early June 2024, when I saw policemen behind my premises, but at the time I had long finished the construction and my premises were fully occupied. - *v)* The applicant was at all times aware of my purchase and ownership of the Kibanja, construction and occupation and did not sue me or show interest in my property. - vi) That the orders sought to add me to the suit are improperly before this Honourable Court and i oppose the application for contempt and addition as a party to the suit.

# **Rejoinder**

- i) That I had initially sued the 3rd defendant and others vide HCCS No. 1534 of 2023 but the Court order had been read, the 4th Respondent and other respondents herein mentioned forcefully and without any lawful claim brought building material on the suit Kibanja and I reported all of them to Nsangi Police station but the 4th respondent compromised the police officers at the said station and I was not helped hence this application. - ii) That the contents of paragraphs 3,4,5,6,7 & 8 of the 4th respondent's affidavit in reply are not only false but do not either demonstrate that the 4th respondent finished the illegal structures on the suit Kibanja before the Court order vide HCMA No. 3857 was issued on the 28th/3/2024. - iii)That I reported a criminal case against the 4th respondent and the rest of the respondents herein at Nsangi police station vide CRB 497 of 2024 for criminal trespass, malicious damage to property, theft and abuse of court order but the police were compromised by the respondents and I was not helped.

- iv) That I have never consented to the 4th respondent's alleged purchase, construction or occupation on my Kibanja but he did the same forcefully and fraudulently and that is the reason I am suing him and requesting Court to add him to the main suit to justify his claims. - v) That at the time I sued the 3rd respondent and other defendants in the main suit herein mentioned, I did not know that the 1st, 2nd and 4th respondents had any claim in the suit Kibanja until after the Court order herein mentioned was read to the respondents on the 27th May 2024. - vi) That the 4th Respondent claims to be having an interest in the suit Kibanja, it is safe for him to be added to the main suit vide HCCS No. 1534 of 2023 as defendants to justify how he acquired the same and this will prevent multiplicity of suits arising from the same suit Kibanja, will save court's time, resources and respondents will not be prejudiced.

### *Representation;*

8. The Applicants was represented by Counsel Allan Yiga of M/s Align Associated Advocates whereas the Respondents were represented by Counsel Ayebazibwe Isaac of M/s Nakachwa, Matovu & Co Advocates.

9. Only the Applicant, the 2nd and 4th Respondents filed written submissions which I have considered during the determination of this Application.

# *Issues for determination;*

- 10. The Applicant, 2nd & 4th Respondents filed their written submissions which I have considered during the determination of this application. - **i) Whether the Respondents are in contempt of the Court order vide HCMA No. 3857 of 2023?** - **ii) Whether the Respondents can be added to the main suit vide HCCS No. 1534 of 2023 as defendants?** - **iii) Whether the Applicant is entitled to the remedies sought.**

#### *Resolution and determination of the issues;*

# **Whether the Respondents are in contempt of the Court order vide HCMA No. 3857 of 2023.**

11. Contempt of Court is defined as conduct that defies the authority or dignity of Court as per Justice Kiryabwire in

**Uganda Super League v Attorney General Constitutional Application No. 73 of 2013 citing the Black's law Dictionary 7th edition.**

- 12. In law, contempt of Court is defined as an act or omission tending to unlawfully and intentionally violate the dignity, repute or authority of a judicial body or interfering in the administration of justice in a matter pending before it. **(See Richard Odoi Adome v Uganda Electricity Generation Company Ltd MA No. 1088 of 2022).** - 13. **Article 128(2) of the Constitution of the Republic of Uganda** provides that no person or authority shall interfere with the Courts or judicial officers in the exercise of their judicial functions. - 14. The conditions necessary in order to prove contempt of Court were well articulated in the case of **Hon. Sitenda Sebalu v Secretary General of the East African Community Ref No. 8 of 2012** and these include; - *I.* Existence of a lawful order - *II.* Potential contemnors knowledge of the order. - *III.* Potential contemnor's failure to comply i.e. disobedience of the order. #### *I.* **Existence of a lawful order**

15. It is not in dispute that on the 28th day of May 2024, Court issued a temporary injunction order against Kasozi Swalle, Maria Rose Nanyunja, Mugerwa Peter & Nsimbi Moses restraining them, their employees, workers, servants and or agents or any person acting under their authority from selling, mortgaging, subdividing, leasing, transferring or alienating part of it to any party until the determination of the main suit which is HCCS No. 1534 of 2023. Therefore, there exists a lawful order.

### *II.* **Potential contemnors' knowledge of the order.**

- 16. The Applicant brought this application against Lukyamuzi Bernard, Ssemanda Jamadah, Kasozi Swalle, Ssembatya Henry while the main suit HCCS No. 1534 of 2023 is against Kasozi Swalle, Maria Rose Nanyunja, Mugerwa Peter and Nsimbi Moses which clearly shows that the 1st, 2nd and 4th Respondents were not parties to the suit from which the order emanates. - 17. That notwithstanding, the Applicant states under paragraph 7 of the affidavit in support and paragraph 16 of the affidavit in rejoinder to the affidavit in reply by the 4th

respondent that the said order was read to the respondents on the 27th day of May 2024.

- 18. The general principle of law is that he who alleges the existence of facts must prove so as per Section 101 of the Evidence Act. The Applicant has not adduced any proof later on an affidavit from the police officer he claims to have read the order to the respondents. There is no proof that all the Respondents to this Application were made aware of the order, the Applicant ought to have served the said order onto the Respondents to effectively claim that they actually had knowledge of the order in question. - 19. The 4th Respondent contends that he only got to know about the Court order in around May or June 2024 when he saw police men behind his premises long after he had finished construction for which the Applicant believes the 4th Respondent should be held in contempt. - 20. With all the above, it's not safe to conclude that the 1st , 2nd and 4th respondents had knowledge of the existence of the order. - *III.* **Potential contemnor's failure to comply i.e. disobedience of the order.**

21. A court order is an order that must be complied with and failure to comply constitutes a contempt of Court. (**See**

#### **Re Howard Amani Little CACA No.32 of 2006**)

- 22. As earlier noted, the 1st ,2nd and 4th Respondents are not party to HCCS No. 1534 of 2023, The 2nd Respondent stated under paragraph 4 of his affidavit in reply that he has never been sued over the said Kibanja and thus he has no interest in the same. - 23. While the 4th Respondent states under paragraph 3 of his affidavit in reply that he owns a Kibanja at Bataka Cell, Kyengera Town Council of which he took possession in January 2023, placed building materials thereon, a fact known by the Applicant who never raised any issues of ownership at all. - 24. He further states under paragraph 4 that when construction was completed, he rented the premises out and the applicant never raised any issues and by the time he filed his suit in December 2023, the 4th respondent had already constructed the premises and the order in question was obtained in May 2024.

- 25. While filing HCCS No. 1534 of 2023, the Applicant did not sue the 1st ,2nd and 4th Respondent and it is only now that he seeks to add them as parties to the same. The 4th Respondent has shown that he has an interest in the land subject of the dispute and while he was not party to the suit, he had the right to occupy and use his property as he pleased. - 26. It is quite clear that the 1st ,2nd and 4th Respondents did not have sufficient knowledge of the order to obey the same, the 2nd Respondent claims to have no interest in the suit therefore could not logically do any act to affect the Applicant's title to the same and while the 4th Respondent who claims to have an interest therein was not party to the suit and the Applicant did not find it necessary to add him up until now thus he was free to occupy and utilize his land therefore, the 1st ,2nd and 4th Respondents cannot be said to be in contempt of the Court order vide HCMA No. 3857 of 2023. Therefore, this issue is resolved in the negative.

### **Issue Two**

**Whether the Respondents can be added to the main suit vide HCCS No. 1534 of 2023 as defendants?**

- 27. It is necessary to show either that the orders sought would legally affect the interest of that person and that it is desirable to have that person joined to avoid multiplicity of suits, or that the defendant could not effectually set up a desired defence unless that person was joined or an order made that would bind that other person. **(See Departed Asians Property Custodian Board v Jaffer Brothers ltd (1999) I. E. A 55)** - 28. The Applicant states that the 1st, 2nd and 4th Respondent claim to have an interest in the suit Kibanja and continuously trespassed and built on the suit Kibanja but has never sold to them the suit Kibanja or authorized any person to do so hence the need to add them as defendants on the main suit vide HCCS No. 1534 of 2023. - 29. The 4th Respondent admits to having an interest in the suit land on which he constructed houses that he rented out while the 2nd respondent claims to have none and since the 1st Respondent did not participate in these proceeding, his interest in the suit land cannot be ascertained. - 30. In light of the foregoing and in the spirit of justice as well as avoiding multiplicity of suits, its only just and

equitable that the 1st, 2nd and 4th Respondents be added as parties to HCCS No. 1534 of 2023.

Thus, this issue is resolved in the affirmative.

# **iii) Whether the Applicant is entitled to the remedies sought.**

- 31. Having resolved issue one in the negative and finding the Respondents not to have been in contempt of the court order vide HCMA No. 3857 of 2023, its quite clear that the Applicant is not entitled to any of the remedies sought for in this application. - 32. For the foregoing reasons, this application partially succeeds on the following orders; - i) That the Respondents are not in contempt of the temporary injunction order vide HCMA No. 3857 of 2023. - ii) The Applicant amends the plaint vide HCCS No. 1543 of 2023 to add the 1st, 2nd and 4th Respondents as defendants within seven (7) days from the date of delivering this ruling. - iii)That the filing of other pleadings shall be as per the provisions of the Civil Procedure Rules SI 71-1. - iv) There are no orders as to costs of the application.

**I SO ORDER.**


# **NALUZZE AISHA BATALA**

# **JUDGE**

# **30th/09/2024**

# **Delivered on the 30th of September,2024 electronically via**

#### **ECCMIS.**