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Masiko v Imaniraguha & 2 Ors (Miscellaneous Application No. 1481 of 2016) 2017 UGHCLD 46 (2017-04-27)

High Court · [2017] UGHCLD 46 Application Granted — Contempt Found AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for contempt of court orders arising from non-compliance with attachment and sale orders in execution of decree in Civil Suit No. 0125 of 2005
Decision
1st and 2nd Respondents found in contempt; 2nd Respondent ordered to pay restitution of purchase price plus substantial general damages; Applicant given liberty to seek committal orders if non-compliance continues

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Court held that the 1st and 2nd Respondents were in contempt of court for failing to comply with lawful orders of attachment and sale issued in HCCS No. 463 of 1999. A party cannot disobey a court order merely because they consider it irregular or procedurally flawed; the proper course is to challenge the order through lawful means while complying with it until discharged. The Respondents' acts of transferring the property between themselves, deploying armed guards to prevent the Court Bailiff's access, and mortgaging the property while proceedings were pending demonstrated deliberate non-compliance. Court awarded the Applicant damages and reimbursement of the purchase price with interest.

Outcome

1st and 2nd Respondents found in contempt; 2nd Respondent ordered to pay restitution of purchase price plus substantial general damages; Applicant given liberty to seek committal orders if non-compliance continues

Facts

The Applicant purchased property (LRV 3218, Folio 20, Plot 16 Ngorogoza Road, Kabale Municipality) at a public auction on 25/04/2005 pursuant to a court order of attachment and sale issued on 21/03/2005 in execution of a decree in HCCS No. 463 of 1999. The 2nd Respondent was the registered proprietor and had guaranteed a loan using the property as security. The mortgagor defaulted, leading to the attachment and judicial sale. After the sale, the 2nd Respondent deployed armed security guards who prevented the Applicant and Court Bailiff from accessing the property. On 23/06/2005, the 2nd Respondent transferred the property to the 1st Respondent. The 1st Respondent then instituted HCCS No. 125 of 2005 against the Applicant, obtained a default judgment which was later set aside. On 08/05/2008, while that suit was still pending, the 1st Respondent transferred the property back to the 2nd Respondent. The 2nd Respondent then mortgaged it to Stanbic Bank (U) Ltd with mortgage registered on 19/05/2008 and a further charge on 07/10/2008. The Applicant lodged a caveat and brought this contempt application, claiming the Respondents deliberately frustrated his efforts to take possession of property lawfully purchased at judicial sale.

Issues

  1. Whether the 1st and 2nd Respondents are in contempt of court for failing to comply with court orders of attachment and sale issued in execution of a decree in HCCS No. 463 of 1999.
  2. Whether the Respondents' acts of transferring the suit property between themselves, deploying armed guards to deny access, and mortgaging the property constitute contempt of court.
  3. What remedies are available to the Applicant given the contempt of court by the Respondents.

Orders

  • Application against the 3rd Respondent withdrawn.
  • The 1st and 2nd Respondents found to be in contempt of court.
  • The 2nd Respondent shall pay back Shs. 20,000,000 (the purchase price of the suit property) to the Applicant with interest at 8% per annum from 25/04/2005 until payment in full.
  • The 2nd Respondent shall pay general damages of Shs. 500,000,000 to the Applicant with interest at 23% per annum from the date of this decision until payment in full.
  • In the event of failure to comply with the above orders, the Applicant is at liberty to move court for orders that the contemnors be arrested and committed to civil prison.
  • Costs of the application awarded to the Applicant.

Rules and key headnotes

Contempt of Court — Obligation to Obey Court Orders — Effect of Belief in Irregularity
A party who knows of a court order, regardless of whether that party believes the order to be null, valid, regular or irregular, cannot be permitted to disobey it by reason of what that party regards the order to be. As long as a court order exists and has not been discharged, it must be obeyed. The proper course for a party who believes an order to be irregular is to apply to have it discharged; the party cannot choose whether or not to comply.
Contempt of Court — Essential Ingredients — Standard of Proof
For a party to be held in contempt of court, four essential ingredients must be demonstrated: (1) the existence of a lawful court order, (2) the potential contemnor's knowledge of the order, (3) the potential contemnor's ability to comply, and (4) the potential contemnor's failure to comply. The standard of proof is higher than proof on the balance of probabilities, and almost, but not exactly, beyond reasonable doubt.
Court Orders — Orders In Rem — Notice to the World
A court order is an order in rem. It is an order against all the world. Once issued, a court order binds all the parties and everyone in respect of the subject matter under litigation. Public notice by advertisement constitutes notice to the whole world. It is not enough for a party to claim, in respect of the subject matter of the suit, that they were not aware of the court order.
Judicial Sales — When Complete and Absolute
A judicial sale, unlike a private sale, is not complete immediately it takes place but only after the person challenging it has taken appropriate proceedings. If no such proceedings are taken or they are taken and are not successful, the sale will then be complete and made absolute. Once a judicial sale becomes absolute, parties are required to comply with it and hand over vacant possession to the purchaser.
Contempt Applications — Scope — Distinction from Validity of Underlying Order
The scope of a contempt application is to determine whether the respondents complied with a court order, not to validate or pronounce upon the legality, validity or propriety of the underlying process that gave rise to that order. Respondents cannot be heard to challenge the execution process itself in a contempt application; such challenges must be brought through proper proceedings. Matters of contempt take precedence over issues of procedure.

Legislation cited (12)

Cases cited (11)

  • Mega Industries (U) Ltd v Comform (U) Ltd (Miscellaneous Cause No. HCT-MC-0021 of 2014)
  • Housing Finance Bank Ltd & Another v Edward Musisi (Court of Appeal Miscellaneous Application No. 158 of 2010)
  • The Proctor & Gamble Co. v Kyole James Mutisho & 2 Ors (Miscellaneous Application No. 135 of 2012)
  • Jennison vs. Baker (1972) 1 ALL ER 997
  • Hon. Sitenda Sebalu vs. Secretary General of the East African Community Ref No. 8 of 2012
  • Hadkinson v Hadkinson [1952] All ER 567
  • Chuck vs. Cremer (1 Corp Jemp 342)
  • Rosemary Erina Karamagi v Angoliga Marmood (Miscellaneous Application No. 733 of 2005)
  • Bashaija Kazoora John vs. Bitekyerezo Medard & Another, HCEP No. HCT - 05 - CV - EP - 004 - 2004
  • Muwanga v Stephen Kyeyune (Legal Representative of Christine Kisamba (deceased)) (Supreme Court Civil Appeal No. 2 of 2001)
  • Wildlife Lodges Ltd. vs. County Council of Narok & Another, [2005] 2 EA 344 (HCK)

Full judgment

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Masiko v Imaniraguha & 2 Ors (Miscellaneous Application No. 1481 of 2016) 2017 UGHCLD 46 (2017-04-27)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.