Windriver Logistics Ltd v Mityana Farm Group and 7 others (Miscellaneous Application No. 34 of 2022) [2022] UGHC 34 (15 August 2022)

### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT MUBENDE

# **MISCELLANEOUS APPLICATION NO. 34 OF 2022**

# ARISING FROM CIVIL SUIT NOS. 48 OF 2020, 22 OF 2021, 298 OF 2021, 75 OF 2019 AND MISCELLANEOUS APPLICATIONS NOS. 135 OF 2020, 023 OF 2021, 71 OF 2021 AND 591 OF 2021

WINDRIVER LOGISTICS LTD :::::::::::::::::::::::::::::::::::

#### **VERSUS**

- 1. MITYANA FARM GROUP ENTERPRISES LTD alias LAKE WAMALA FARM LTD 2. ABID ALAM - 3. THE ATTORNEY GENERAL - 4. AZIZ HARTY - 5. PHOEBE NAMULINDWA - 6. OCHOM EDWARD - 7. ERASMUS TWARUHUKA - 8. ISMAIL NASIF ::::::::::::::::::::::::::::::::::: **RESPONDENTS**

## BEFORE: HON JUSTICE DR. FLAVIAN ZEIJA

## **RULING**

The Applicant herein brought the instant application by way of Notice of Motion under Sections 33 and 98 of the Civil Procedure Act Cap 71, Order LII rules 1 and 3 of the Civil Procedure Rules SI 71-1, seeking for orders that;

1. The Respondents be held in contempt of court orders issued in Miscellaneous Applications No. 37 of 2021, No. 023 of 2021 and No. 133 of 2021 (All arising from Civil Suit No. 48 of 2020), Miscellaneous Application No. 71 of 2021 (Arising from Civil Suit No. 22 of 2021) and


# Miscellaneous Application No. 591 of 2021 (Arising from Civil Suit No. 298 of 2021).

- 2. The 1<sup>st</sup>, $4^{th}$ , $5^{th}$ , $6^{th}$ , $7^{th}$ and $8^{th}$ respondents be ordered to pay a fine UGX. 500,00,000/= each to the government of Uganda and general damages of UGX. $500,000,000/$ = each to the applicant for the contempt of court orders. - 3. The 2<sup>nd</sup> respondent be ordered to pay a fine of UGX. 1,000,000,000/= to the Government of Uganda and general damages of UGX. $1,000,000,000/$ = to the applicant for the further and continuous contempt of court orders. - 4. The 3<sup>rd</sup> respondent be ordered to pay general damages of UGX. $500,000,000/$ = to the applicant for the contempt of court orders. - 5. If any of the 1<sup>st</sup>, 2<sup>nd</sup>, 4<sup>th</sup>, 5<sup>th</sup>, 6<sup>th</sup>, 7<sup>th</sup> or 8<sup>th</sup> respondents fails to pay the fine within fourteen days, such respondent should be committed to civil prison for six months. - 6. The respondents be ordered to maintain the status quo of the suit land as previously determined by court in Miscellaneous Applications No. 135 of 2020, No. 37 of 2021, No. 023 of 2021 and No. 133 of 2021 (All arising from Civil Suit No. 48 of 2020), Miscellaneous Application No. 71 of 2021 (Arising from Civil Suit No. 22 of 2021) and Miscellaneous Application No. 591 of 2021 (Arising from Civil Suit No. 298 of 2021) and in particular the status quo to be clarified and maintained is that; - The applicant should not be evicted from the 3 and a half $i$ square miles which is part of land comprised in FRV HQT 130 Folio 7, Singo Block 308 Plot 143 at Lwamasanga-Bukompe and Singo Block 308 Plot 142 which the applicant has occupied since September 2020 till the disposal of the above suits. - The applicant's farming activities on the said 3 and a half $\dddot{i}$ square miles including cultivation, opening and maintaining

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woter wells, doms ond provision of o// necessory equipment ond/or inf:ostructure for cultivotion, cows ond workers on lhe suif lond so occupied ond the lond occupied by the opplicont's coflle should not be interfered with pending fhe disposo/ of ihe obove suifs.

- iii) Costs of fhis opplicolion be poid by lhe respondenf. - 7. Premised on the finding in I obove, fhe Respondenfs be condemned to poyment of o sum of UGX. 400,000,000 (Ugondo Shil/ings Four hundred million) eoch lo otone for the impugned contempt of court. - 8. ln the olternotive fo the relief sought in 2 obove, fhe lsf ond 2nd Respondenls be committed to civil pison f or o period nol exceeding (6) six months lo crock o whip ogoinst them for their egregious ond wonton confempt of courl. - 9. Cosfs of the opplicotion be provided for

The grounds of the opplicotion ore set out in the offidqvit in support deponed by Erio Mubiru, the opplicont's lowful ottorney ond operotions chief officer but briefly thot;

- l. The opplicont filed Civil Suit No. 48 of 2020 which is premised on it hoving interesl in fhe suit /ond os purchosers who took over physicol possession since Sepfember 2020 ond storfed forming ocfivilies fhereon ond reoring cotf/e ond goofs. - 2. Thof the High Courf hos issued severol orders mointoining lhe stofus quo by ollowing the opplicont to conlinue in possession ond use of fhe suil lond but lhe lsr ond 2"ct respondenls viololed fhe soid orders ond ottempted to evicl lhe opplicont ond sfop tts workers from undertoking routine form work like cultivotion of posture, fencing the

grazing area, construction of pasture, construction valley dams among others.

- 3. On the 20<sup>th</sup> December 2021 the High Court vide MA-133-2021 (Arising from MA-23-2021 AND CS-48-2021 found the 1<sup>st</sup> respondent guilty of contempt of orders issued in MA-23-2021 and was condemned to payment of UGX. 300,000,000/=. - 4. That security apparatus working for the $1^{st}$ and $2^{nd}$ respondents blatantly disobeyed the said orders. - 5. That in January 2022 all the parties were summoned to a meeting at the offices of the Inspector General of Police where the respondents' representatives insisted that farming activities on the applicant's land must be stopped "in compliance with court orders issued in MA-71-2021. - 6. That in pursuance of the respondents' claims at the said meeting, the 7<sup>th</sup> respondent wrote to the Regional Police Commander Wamala Region ordering him to 'restore the status quo' which in effect meant stopping the applicant from utilizing the suit land as before and halting all the applicant's works on the land to provide water to their cattle and secure the land and armed with this letter, the police and representatives of the $1^{st}$ , $2^{nd}$ , $4^{th}$ and $5^{th}$ respondents in person descended on the suit lad and stopped all the applicant's works. - 7. That in further violation of existing court orders and in further efforts to change the status quo of the suit land to the disadvantage of the applicant, the respondents acting through the 7<sup>th</sup> respondent and other police officers have purported to carry put investigations on the 'status quo' of the suit land without involving the applicant and have come up with erroneous findings and decisions to the prejudice of the applicant.

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- 8. Thot given the conduct of fhe respon dents iointly ond severo/ly, there is imminenl threot to permonently stop the opplicont from utilizing the suit /ond including denying the oppliconf 's colfle from occessing woter ond if is in fhe inleresls of justice for this Honoroble Court to define fhe stotus quo in o detoiled mlnner to prevent the respondents from continuing to inteiere with fhe oppliconi's possession ond use of the suif lond. - 9. Thot the Uganda Police Force os on ogenf of the 3'd respondent ond octing in conced with the 4th, sth, 6th,7th ond 8th respondents ore likely to continue deliberotely misinterpreting ond misopplying fhe previous courl orders issued over the some subject motter ond infend to criminolize the dispufe by cousing onesfs of the oppliconf 's workers ond hindering ony octivity on the opplicont's form under the cover of conducting ciminol invesligofions ond mointenonce of the undefined sfotus guo. - <sup>t</sup>O. Ihof if is in the inlerest of juslice thot court clonfies lhe stof us quo of the suif lond os envisoged tn oll previous orders issued ond fhis con onty be ochieved by ollowing the orders soughf herein.

The gist of the lsr ond 2no Respondents'offidovits in reply is thot the lst Respondent hos never either knowingly ond/or inodvertently violoted ony order of court thot wos brought to its ottention through its legol counsel ond thot onnextures cl, C4 ond c5 ottoched to the offidovit in support of the opplicotion were issued ogoinst the commissioner Lond Registrotion, ihe Attorney Generol ond other porties respectively who do not include the I'i Respondent. Thus, the lst Respondent wos neither required to do or refroin from doing onything by the soid Order of court.

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The 7lh Respondent deponed qn offidovit in reply on beholf of the 3,d, 5|h, 6rh ond 7rh Respondents. The 5th Respondent is the Resident District commissioner, the 6th Respondent is the Director operotions Ugondo Police Force ond the 7th Respondent is the Director Legol Services Ugondo Police Force. TheTlhRespondentbosicollystotedthotduetotheconflictsthot continued on the suit lond ofter the porties continued to misinterpret the court orders, ii necessitoied creotion of q buffer zone to ensure peoce ond security on the suii lond. Thot the modolities of implementing the soid buffer zone were discussed between the porties' lowyers ond Government officiols in o meeting held on l2rh April 2022, o report of the minutes orising therefrom wos morked os onnexture .. B'' ottoched to the 3,o, 5lh, 6lh ond 7th offidovit in reply. Further, ihot olthough court ordered the stotus quo to be mointoined, eoch porty defines stotus enforcement on the ground dlfficult' quo differentlY which mokes

The 4th Respondent who ls olso Plointiff in civil Suit No. 22 oI 2021 ond ApplicontinMiscelloneousApp|icotionNo. Tlot2o2ldeponedonoffidovit in reply whose gist is thot by sole ogreements doted I5th Morch 2019 ' 2nd September20lgondoMemorondumofUnderstor,dingdqtedl5thJuly, 2O2Ohe purchosed 2 Miles of the suil lond ond lodged o coveot thereon' Thot despite the soid coveot subsisting' the Applicont eniered into <sup>o</sup> purchoseogreementoftheeniiresuitlondmeosuringl,0TS.g6T0Heclores includingthe2squoremilesbeIongingtohim. Thispromptedhimtoinstitute Civil Suit No. 22 ot 2021 qnd MA 7l OF 2021 lrom which the order mointoiningstotusquoorose. Thotintotoldisregordofthecourtorder mointoining the stolus quo on the suit lond' on 5rh Jonuory 2022 or thereobout, the Applicont ond o one Peninnoh Busingye who were owore ofthesoidcourtorderwiththehelpoftheirogentsondpolice,emborked on groding ond excovoting the suii lond ond creoted volley tonks ond /or r\


doms thereby oltering the stolus quo which prompted him to institute MA No.30 of 2022 for contempt of court which is pending court's heoring ond determinotion. As such he hos never been in contempi of ony court order. The 4rh Respondent further deponed thqt the court order in MA No. 7l wos not permissive of excovotion, groding, fencing ond construction ond the opplicotlon should qs o result be dismissed.

The 8th Respondent olso deponed on offidovit in reply. The gist of the 8th Respondent's offidovit in reply is thot he is not owore of ony orders of court thot were issued ogoinst him personolly requiring him to refroin from dolng ony oct in his individuol copocity.

ln rejoinder, the Applicont reiteroted its overments in the offidovit in support of the opplicotion ond mointoined thol o new stotus quo wos redefined by ogreement of oll porties of o meeting ofter which the police estoblished o buffer zone seporoting the Applicont who wos utilizing one portion for tree plonting ond cottle grozing inclusive of construction of woter doms while the |'t Respondent wos occupying the other porlion for sugor cone growing.

# Represenlqlion

During the heoring of this opplicotion the Applicont wos.iointly represenied by M/S Konduho & Co. Advocotes, KBW Advocotes ond Koiende, Sserunjogi & Co. Advocotes.

The I st Respondent wos represented by Advocole Betundo Yusuf.

The 2nd ond 8th Respondents were represented by M/s Arcodio Advocotes.

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The 4<sup>th</sup> Respondent was represented by M/s Lukwago & Co. Advocates. The 3<sup>rd</sup>, 5<sup>th</sup>, 6<sup>th</sup> and 7<sup>th</sup> Respondents filed an affidavit in reply but did not file written submissions.

## PRELIMINARY POINTS OF LAW

Counsel for the 1<sup>st</sup> respondent submitted that for over a period of one year, HCMA No. 23, HCMA No. 36 of 2021 and HCMA-37-2021 all being interlocutory applications filed by the applicant have never been determined nor have they even ever been fixed for hearing by the court which is contrary to Order 50 rule 3 of the Civil Procedure (Amendment) Rules, 2019.

According to the $1st$ Respondent's affidavit in reply paragraphs 6 – 15, the Applicant filed H. C. M. A No. 135 of 2020 for an interim order and injunction which were granted by court. However, court set aside the said interim order and injunction vide H. C. M. A No. 175 of 2020. On 23rd February 2021, the applicant instituted H. C. M. A No. 22 of 2021 for review of the orders of court in H. C. M. A No. 175 of 2020. The Applicant also filed H. C. M. A No. 23 & 24 of 2021 arising from H. C. M. A No. 22 of 2021 respectively seeking for a temporary injunction and stay of execution of the Orders of Court in H. C. M. A No. 175 of 2020 pending the hearing and determination of HCMA No. 22 of 2021. That the said applications H. C. M. A No. 22 of 2021, H. C. M. A No. 23 of 2021 and H. C. M. A No. 24 have never been heard and /or determined. The same applies to H. C. M. A No. 37 of 2021 which was also an application for an interim order pending the determination of the main application for a temporary injunction vide H. C. M. A No. 36 of 2021.

 However, onnextures Cl ond C2 ottoched to the offidovit in support of the opplicotion ore orders of court issued in Miscelloneous Applicotions Nos. 037 of 2021 orising from MA No. 036 of 2021 ond Miscelloneous Applicotion No. 023 of 2021 orising from MA No. 22 of 2021 respectively. lt is therefore, not occurote thqt the two opplicotions were nol determined os olleged by the I st Respondent.

It is undisputed thot the order of court doted 4th Morch 2021 issued by the Hon. .lustice Henrietto Woloyo hoving heord Counsel for oll porties on the slotus quo of the suit lond wos issued in the following terms;

## ,,No eyiclions sholl be corried out ogoinst either of lhe porlies to the dispuled tond until the heoring ol lhe moin suil on I't June 2021"

This is the Order in defqult of which the 2no Respondent herein wos found in contempt vide H. CM. A No. 133 ol 2021 .

<sup>I</sup>om of the view thot the opplicotlons which the lst Respondent comploins of not hoving been determined seek to creote unnecessory multiplicities of proceedings which this court is enjoined to curtoil. They seek for orders which this courl hos olreody pronounced itself upon with regord to temporory injunctions ond mointenonce of stotus quo. Noneiheless if porties insist on heoring ihem, I direct thot they seek o schedule from this court, for filing relevont offidovits ond written submissions in regord to the unheord opplicotions, so thot, this court con proceed to heor the moin suit on ils merits wlth immediote effect. This does not however, in ony woy offect the present opplicoiion.

The 2nd preliminory point of lqw wos roised by Counsel for the 4rh respondent who submitted thot Mubiru Erio who purports to be the lowful

attorney of the Applicant as set out under paragraph 1 of the affidavit in support of the application attached powers of attorney which only gave him powers to act as chief of operations of the company and not authority to depone affidavits or represent the company in court matters. Additionally, that the powers of attorney were signed by only one person on behalf of the company without indicating the capacity under which he signed on behalf of the company which is contrary to its Articles of Association which clearly provide that the minimum number of directors shall be two. Further that the signature of the person who signed for the donor is not in latin character and the company seal was not affixed as well which is contrary to the mandatory requirements of Section 148 RTA.

On perusing annexture A2 attached to the affidavit in support of the application, I find that the said Power of Attorney appointed Mr. Eria Mubiru as Chief of Operations of the 1<sup>st</sup> Respondent Company. The said Power of Attorney states in clause 3;

"AND WINDRIVER LOGISTICS LIMITED, do hereby declare that anything that shall be done by the said Attorney in his capacity shall be as good, valid and effectual to all intents and purposes whatsoever as if the same had been signed, sealed and delivered or done by us in our corporate capacity and we hereby undertake from time to time and at all material times to ratify and /or confirm whatsoever our said Attorney shall lawfully do or cause to be done by virtue of this Power of Attorney"

The above Power of Attorney is general in nature to the extent that it covers swearing of affidavits. There is also no law that bars a single director of a company from signing a Power of Attorney as Donor on behalf of the Company. Section 148 of the Registration of Titles Act cited by Counsel for the 4<sup>th</sup> Respondent provides;

## 148. Signatures to be in Latin character

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No instrument or power of attorney shall be deemed to be duly executed unless either—

(a) the signature of each party to it is in Latin character; or

(b)a transliteration into Latin character of the signature of any party whose signature is not in Latin character and the name of any party who has affixed a mark instead of signing his or her name are added to the instrument or power of attorney by or in the presence of the attesting witness at the time of execution, and beneath the signature or mark there is inserted a certificate in the form in the Eighteenth Schedule to this Act.

It is now a settled position that the provisions of section 148 of the Registration of Titles Act are mandatory and non-compliance makes the instrument defective. Katureebe JSC (as he then was) in the supreme court decision of Fredrick J K Zabwe vs. Orient Bank & Ors S. C. C. A No. 4 of 2006 stated the rationale behind section 148 of the RTA thus:

"In my view, the rationale behind section 148 requiring a signature to be in latin character must be to make clear to everybody receiving that document that as to who the signatory is so that it can also be ascertained whether he had the authority or capacity to sign. When a witness attesting to a signature merely scribbles a signature without giving his name or capacity, how would the Registrar or anyone else ascertain that witness had capacity to witness in terms of section 147 of the Registration of Titles Act?"

It is therefore imperative that the names of the person signing on behalf of the Company be stated or designation/capacity to sign on behalf of the company made known. In the current circumstances how can we know that the donor is a director of the Company with capacity to sign? Where the document has a company seal, it suffices but merely scribbling the name of the Company with no seal and in the absence of the name or

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designation /capacity of the signatory is unacceptable. In this application I however notice that the copy of the powers of attorney provided to court and marked as annexture A2 attached to the affidavit in support of the application is an extracted certified copy from the Uganda Registration Services Bureau which gives me the confidence that by registering it and making it public, the Company (Windriver Logistics Ltd) owned this document as its own. With this fact, the question as to whether those who signed had the power to do so no longer arises. There is therefore, no doubt that the instrument was sanctioned by the Company.

In the premises, the $2<sup>nd</sup>$ preliminary objection fails. I will now turn to determine the application on its merits.

## The Law applicable

It is now trite that for there to be contempt of court, the following principles have to be established;

- a) Existence of a lawful order - b) Potential contemnor's knowledge of the court order - c) Potential contemnor's failure to comply, that is, disobedience of the order.

See; Jack Erasmus Nsangiranabo vs. Col Kaka Bagenda & Anor Misc. Appl. No. 671 of 2019

In this application, the existence of a lawful order and the potential contemnor's knowledge of it is not in contestation. The dispute rotates around the interpretation and application of the Orders of court that have been variously issued maintaining the status quo.

Black's Law Dictionary, Butter Worths 9th Edn, defines Status Quo as a Latin word which means "the situation as it exists"

Status quo is about a court of law maintaining the situation or the subject matter of the dispute or the state of affairs as they existed before the mischief crept in, pending the determination of the issue in contention.

By maintaining the status quo, the court strives to safeguard the situation so that the substratum of the subject matter of the dispute before it, is not so eroded or radically changed or that one of the parties before it is not so negatively prejudiced that the status quo ante cannot be restored thereby rendering nugatory its proposed decision.

The case of Thugi River Estate Limited & another Vs National Bank of Kenya Limited & 3 others [2015] e K. L. R set out the proper manner in which the court ought to frame a status quo order, especially where it is one that the court has originated thus:

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'....... Ordinarily where it is the court that has prompted a status quo order or has prompted the parties to it, it is more appropriate and exceedingly relevant to describe clearly the state of affairs at the time the order for status quo is issued. It is undesirable to simply make an order of status quo to be maintained without clearly describing the state of affairs then existing and being preserved. Assistance of the Counsel should always be sought in such instances otherwise each party may walk away with its own state of affairs in mind."

Regarding the dispute in this application, the 1<sup>st</sup> Respondent admitted in paragraph 14 of the 1<sup>st</sup> Respondent's affidavit in reply that the trial judge heard the parties on the issue of status quo before issuing an order restraining eviction of either party from the suit land. The status obtaining on the suit land at the time was that the Respondents were in occupation of the suit land on the one hand doing farming activities and M/s Wamala

Enterprises Lld on the other end engoged in sugor cone growing. lt is loter thot o buffer zone seporotlng the woning porties for purposes of mointoining peoce. ln my view, the presence of security on the suit lond wos ond still is necessory given thot o person hos previously been killed os q result of violence on the suit lond.

The Applicont just like the Respondents invited this court to clorlfy whot the stotus quo on the sult lond ought to be. lt is not in dispute thot the stotus quo pertoining ot the time court voriously issued the orders mointoining the stotus quo wos thot the Applicont wos corrying out forming. The only question thqt orises is whether forming octivities extend to construction of volley doms to provide woter for onimols, tree plonting ond fencing off. <sup>I</sup> would like io consider the scope by looking of the bolonce of convenience. It hos not been proved thot the octivities being undertoken by the Applicont ore copoble of fotolly erodlng the substrotum 1o o point of no recovery or thqt the domoge being coused connot be remedied by on oword of domoges in the event thot the Respondents ore successful in the moin suit. otherwise, it mokes no sense to hove onimols on the lond wilh o restriction of doing octivities such os construction of volley doms for provision of woter. lt is equolly occeptoble to fence for purposes of enobling the onlmols to stoy confined within given porometers. These in my view ore octivities so intertwined with forming thot one octivity moy not eosily succeed without the other.

ln lhe circumstonces, let the Appllcont continue in possession ond utilizotion of the port of the suit lond for forming such os crop growing, qnimol reoring ond forming reloted octivities such os construction of woier doms, ond fencing off the lond they ore currenlly occupying but not beyond the buffer


zone established by Uganda Police till the final determination of the main suit. The Applicant is however ordered not to interfere with the status of the suit land beyond farming and farming related activities stated in this application. In the event that the Applicant wishes to undertake any other farming related activity which is not expressly stated herein, let it first seek a court order sanctioning the same for purposes of maintaining peace and tranquility among the varying parties. Uganda Police should maintain the already existing buffer zone on the same arrangement as before.

Since it appears clearly from the pleadings that all parties found difficulties in interpreting the status quo and thus sought clarification from the court. Now that this court has provided clarification on the same, I decline to grant the prayers in regard to contempt of court orders. Let parties bear their own costs.


PRINCIPAL JUDGE