THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

Miscellaneous Application 0387 of 2020

[Arising from Miscellaneous Application No. 346 of 2020; Miscellaneous

Application No. 345 of 2020 and Miscellaneous Cause No. 166 of 2020]

SIIKU MUZAMIL …………………………………..……….APPLICANT

VERSUS

1. FRED BAMWESIGYE [Ag. Director General of CAA]

2. EFRANCE MUSIIMENTA MBAGAYA [Ag. Director Human

Resource & Administration]

3. GILBERT OBWOR [Ag. Manager, Human Resource]

4. KATUZEYO BOAZ [Commandant, Aviation Police]

5. UGANDA CIVIL AVIATION AUTHORITY ……..RESPONDENTS

BEFORE: HON. JUSTICE SSEKAANA MUSA

RULING

The Applicant filed an Application for Contempt of Court Orders against

the Respondents herein vide Misc. Cause No. 166 of 2020. On the 29 th June,
2020, the respondents constituted an organ known as EXCO, and held a
secondary hearing against the applicant in his absence and thereafter
purportedly made a decision to punish him by way of summary dismissal.
The aforesaid decision was delivered to the applicant at his home on 3rd
July, 2020 by a letter from the director Human Resource and
Administration dated 1st July, 2020.

That on the 14th July 2020, court issued an interim order staying
implementation of the decision that purportedly summarily dismissed the
applicant until the determination of the said application pursuant to Article
82.3 of the Collective Bargaining Agreement, revised December, 2013.
The Application was heard and disposed of inter-party in favor of the
Applicant wherein the following orders were issued;
In the interim, this court stays the implementation of a punishment imposed on the
employee (Applicant) pending the determination of the application for an interim
order of injunction No. 346 of 2020 inter-parties in accordance with Article 82.3 of
the Collective Bargaining Agreement.

The order above was to be complied with by Uganda Civil Aviation

Authority through the Ag. Director of CAA and Ag. Director Human
Resource. The said order was not complied with hence this application.
The Applicant thus sought the following to be determined to support a
finding for contempt;
1. Whether the Respondents are in Contempt of this Honorable Court’s
order of 14th July, 2020?

2. The Respondents be condemned to a fine of Ugx. 500,000,000/= jointly

and severally for contempt of Court.

3. The Respondents compensate the applicant with Ugx. 500,000,000/=

as general damages for the loss and suffering caused as a result of
their Contempt of Court Orders.

4. The Respondent be ordered to compensate the applicant with Ugx.

750,000,000/= as exemplary, punitive and aggravated damages for the
imperiousness and /or impunity exhibited in the disobedience of
Court orders.
 5. The 1st, 2nd and 3rd Respondents be condemned to Civil prison for
Contempt of Court orders.

6. That the criminal charges of fraud under CRB 125/2020 at Aviation

police, Entebbe International Airport or any other charges arising
from the Respondents contemptuous conduct be quashed and set
aside by this court.

7. That costs of this application be borne by the Respondents.

The Applicant filed an affidavit in support of the Application dated 22nd

July, 2020. The Respondents filed their affidavits in reply on the 12 th day of
August, 2020.

The 5th Respondent in specific reply to the application stated in his affidavit
in reply;
1. That the order given by court could not be complied with because;
(a) That pursuant to Article 82 of the Collective Bargaining
Agreement(CBA), the Applicant had an option of appealing his
summary dismissal to the 1st Respondent which would entitle him
to stay implementation of his dismissal pursuant Article 82.3 of
the CBA. The Applicant did not lodge any such appeal.

2. That on 10th July 2020, the Applicant filed an application seeking an

interim order to restrain the 5th Respondent from implementing any
disciplinary action taken against him until determination of the
Temporary injunction Application vide Misc. Cause No. 345 of 2020.

3. That on the 14th July 2020, the court issued an order in the following
terms;
“in the interim, this court stays implementation of a
punishment imposed on the employee (Applicant) pending the
determination of the application for an interim Order of
 injunction No. 346 of 2020 inter-parties in accordance with
Article 82.3 of the Collective Bargaining Agreement”

4. That by the date of the Order of 14th July 2020, the Applicant had
ceased being an employee of the 5th Respondent for all intents and
purposes and was no longer reporting to work. The status quo
sought to be maintained by the said Order had therefore been
overtaken by events;

5. That implementing the Court Order of 14th July 2020 by having the
Applicant returning to work would result into altering the status quo
which would defeat the spirit of granting an interim Order.

Counsel were directed to file written submissions, which I had the occasion
of reading and consider in the determination of this application.

The Applicant was represented by Mr. Rashid Kibuuka and the Respondent
represented by Mr. Mathias Ssekatawa

There are two issues arising that is;

1. Whether the Respondents are in contempt of Court Order dated 14 th
July 2020?

2. What remedies are available to the Applicant?

Submissions
The applicant’s counsel cited the case of Ekau David v. Dr. Jane Ruth
Aceng & 2 others, Misc Application No. 746 of 2018 wherein it was stated
that the rationale of sanctions behind Contempt of court orders is;” to safe
guard the rule of Law which is fundamental in the administration of justice. It has
nothing to do with the integrity of the judiciary or the court or even the personal
ego of the presiding judge…”

Further the cited case laid down the following principles have to be
established:-
 • Existence of a lawful order
• Potential contemnor’s knowledge of the order
• Potential contemnor’s failure to comply, that is, disobedience of the
order.
Counsel for the applicant submitted that it is not in dispute that this court
issued an interim order on the 14th July 2020 and marked as Annexure “A”
under paragraph 6 of the Applicant’s affidavit in support of the
application.

Counsel submitted that the Respondents knowledge of the lawful order

and their disobedience of the same were confirmed by the failure to
comply with the order and the agreed that implementing the Court Order
of 14th July 2020 by having the Applicant returning to work would result
into altering the status quo which would defeat the spirit of granting an
interim Order.

Counsel further submitted that having confirmed the existence of the court
order as per paragraph 6 of the Applicant’s affidavit that, it was issued in
the presence of the lawyers of the Respondents through a forwarding letter
attached on the affidavit as Annexure B. The order was also extracted and
served upon both said respondents.

Counsel further noted that the 1st, 2nd, and 3rd Respondents do not deny
knowledge of the existence of a lawful order but rather an attempt to
disobey court orders as per paragraph 8 and 9 of the 1 st, 2nd, and 3rd
Respondents affidavits. As for the 4th respondent, having known about the
court order and acting as an enforcement machinery of the respondents,
claims to having received a complaint on the same date of the 14 th day of
July 2020 according to paragraph 4 of his affidavit.

Counsel in his submission argued that the complaint regarding the

applicant’s involvement in a criminal matter of fraud or forgery is made to
the 4th respondents on 14th July, 2020 when the applicant obtained the court
order against the 1st and 5th respondents in the presence of their lawyers.
Counsel noted that it is absurd to note that 4th respondents affidavits was
drawn by the same lawyers of the 1st, 2nd, 3rd, and 5th, respondents whose
representation was in court on the day the interim order was issued.

Counsel brought to the knowledge of court that the 5 th Respondent,

Manager Legal Services under paragraph 10 and 11 of his affidavit, does
not dispute knowledge of the existence of the court order rather explains
the impracticability of it.

Counsel for the applicant cited the case of Hadkinson v. Hadkinson [1952]
All E.R. 567, quoted in the case of Kenya Tea grown association v. Francis
Atwoki & 5 others [2012] eKLR, court held that “of what use are court orders
if those to whom they are directed look at them with disdain?”

Counsel further noted that the essence of willful disobedience of court is

criminally punishable and also attracts civil sanctions in form of exemplary
damages and fine as with in the case of Clarke and others v. Chadburn &
others [1985] 1 All E.R.(PC)211

In remembrance, counsel notified court of the importance of complying

with court orders as per the authorities decided in this court in lead as the
case of Stanbic Bank (U) Ltd v. the Commissioner, Uganda Revenue
authority Misc. Application No. 0042 of 2020 and many others.

Counsel for the respondents cited the case of Kasturilal Laroya v. Mityana
Staple Cotton Co. Ltd [1958] E.A 194, court held that “in proceeding of this
nature it is necessary to consider whether there has in fact, been such
prejudice to the interests of the decree-holder, or such obstruction to the
course of justice as to make committal for contempt the proper remedy.

The judicial officer should be most careful to see the underlying case
cannot be fairly prosecuted to a hearing unless the alleged contempt is first
dealt with, i.e whether there is no other appropriate remedy by the
applicant, and
The mere fact that there had been disobedience to an order of the court
does not in itself amount to contempt; all circumstances of the case should
be considered.

The order in issue sought to prevent an incident that had already happened
as set out in paragraph 10 of the affidavit of UCCA in response to this
application. This being the case, cannot be rightfully contended that the
applicant’s interests were prejudiced.

For the orders of quashing of the decision to summarily dismiss, the main
suit fairly be tried before hearing the alleged contempt application and if
disposed of in the applicant’s, the court could order that the applicant be
allowed to return to work and compensated for any alleged injury suffered,
counsel then submitted that the main suit offers an appropriate remedy
and renders the contempt application unnecessary.

A review of the totality of the facts in this case demonstrates that the
respondents’ actions do not amount to contempt of court. The status quo
had changed prior to grant of the injunction order and ant attempt to
implement it by having the Applicant return to work would result in to a
positive order altering the status quo and defeating the spirit of granting
injunction orders. He invited this Honorable court to find that the facts of
the instant case do not amount to contempt.

Counsel for the respondent argued that the order of 14th July 2020 was not
clear and unambiguous, citing paragraph 472 of the Halsbury’s Laws of
England, Volume 9(1) at page 291 stating that “…the Court will only punish
as a contempt a breach on injunction if satisfied that the terms of the injunction are
clear and unambiguous, that the defendant has proper notice of the terms, and that
the breach of injunction has been proved beyond reasonable doubt”
He further relied on the case of Peace Isingoma v. MGS International (U)
LTD (H.C.M.A – 0761 of 2006) on whether court should make an order to
reverse the state of occupation which existed and whereat the Respondent
was in management; Justice Lamech Mukasa held that;
 “…by the time this application came before me, a temporary injunction was no
longer a remedy available to the applicant since the status quo had already been
disturbed through the applicant being forced out of the station and the operation
thereof handed over to a third party…in conclusion, I find that the applicant has
already been forced out of the station and operation thereof granted to a third
party. The status quo has already been disturbed. The applicants injury resulting
from any forceful eviction or breach of the agreement is likely to be adequately
compensated by damages… in the premises the application fails, and is dismissed
with costs.”
Counsel alluded that just like in the Peace Isingoma case (supra) an
injunction was no longer remedy available to the applicant since the status
quo had already been disturbed through the applicant being denied access
to UCAA premises, and invited court to dismiss the application on this
basis alone.

Counsel for the respondent invited court to be persuaded by the reasoning

of court in the cases of Assimwe Nkamushaba v. Makerere University & 5
others; Misc. Application No. 709 & 540 of 2018 and Edith Nakandi v.
Umar Katongole; HCMA No. 252 of 2017 that since there was no Court
Order on the 29th June 2020 when the applicant was dismissed, the
respondents were not in contempt of any court order.

Counsel also highlighted that the Applicant’s arrest was in furtherance of

an ongoing investigation of an offense of fraud contrary to section 113 of
the Penal Code Act. The 4th Respondent had just cause and reasonable
grounds to arrest of the applicant on grounds of fraud, thus cannot be
reasonable cause to arrest the applicant and cannot be sustained that his
arrest was an extension of the contempt of court and demonstration of
“who has the power.”

Counsel prayed that the court finds that the respondents were not in
contempt of court order, as alleged by the applicant
Analysis
Contempt of Court as per the Black’s Law dictionary 9th Edition is defined
as “Conduct that defies the authority or dignity of a Court, because such conduct
interferes with administration of justice if is punishable usually by fine or
imprisonment”

I will still emphasize my statement in the case of Ekau David v. Dr. Jane
Ruth Aceng & 2 others, Misc Application No. 746 of 2018 that the reason
why courts will punish for contempt of court then is to safeguard the rule
of law which is fundamental in the administration of justice. It has nothing
to do with the integrity of the judiciary or the court or even the personal
ego of the presiding judge. Neither is it about placating the applicant who
moves the court by taking out contempt proceedings. It is about preserving
and safeguarding the rule of law. A party who walks through the justice
door with the court order in his hands must be assured that the other order
will be obeyed by those to whom it is directed.

This court further noted, that a court order is not a mere suggestion or an
opinion or a point of view. It must therefore be complied with and it is in
the interest of every person that this remains the case. To see it any other
way is to open the door to chaos and anarchy and this court will not be the
one to open that door. If one is dissatisfied with an order of court, the
avenues for challenging it are also set out in the law and defiance is not an
option or one of the ways to show discontent with a lawful court order.

Both counsel cited the case of Kenya Tea grown association v. Francis
Atwoki & 5 others [2012] eKLR, in which court observed that; “I need not
cite authority for the proposition that it is high importance that orders of the courts
should be obeyed, wilful disobedience to an order of court is punishable as a
contempt of court, and feel no doubt that such disobedience may properly be
described as being illegal… even if the defendants thought that the injunction was
improperly obtained or too wide in its terms , that provides no excuse for
disobeying it. The remedy is to vary or discharge it”
It is in this regard that disobedience of court orders and or summons lead
to anarchy and worth being punished.
I find that the respondents’ justification for not complying with the order of
this court by way of claiming ignorance of its existence and claims that it
was already overtaken by events, is untenable, baseless and devoid of
merit.

This Honourable court issued the order of 14th July 2020, however the
respondent told court that the applicant had ceased being an employee of
UCAA for all intents and purposes and was no longer reporting to work,
thus UCAA was unable to stay imposition of the disciplinary punishment
as ordered by court because punishment had already been implemented on
29th June 2020. The status quo sought to be maintained had already been
overtaken by events. Their actions amounted to contempt of court.

The respondents cannot therefore hide behind the justification of non-

existence of the order and claims that the order was already overtaken by
events purges themselves of contempt. In Housing Finance Bank Ltd &
Another v. Edward Musisi (supra) at page 11, court held that; “the principal
of law is that the whole purpose of litigation as a process of Judicial administration
is lost if orders issued by court through its set judicial process, in the normal
functioning of the courts; are not complied with in full by those targeted and/or
called upon to give due compliance.”

As earlier on stated in the Ekau case, it would be futile for a court to issue
orders that are not effective owing to the parties’ disobedience of such
orders; and yet the court continues to issue such other orders on top of
those already issued but disobeyed.

The respondents were required to comply with the order of court that “in
the interim, this court stays the implementation of a punishment imposed
on the employee (Applicant) pending the determination of the application
for an interim order of injunction No.346 of 2020 inter-parties in accordance
with Article 82.3 of the Collection Bargaining Agreement. The said
agreement barred any implementation of any punishment before the
expiry of 15 days or until determination of the appeal. This implies that any
decision taken by the 5th respondent could not be implemented before the
expiry of the 15 days and it is intended to facilitate an appeal process to an
aggrieved party.

The respondents in an effort to justify their contempt purportedly lodged a

complaint to police and caused the arrest of the applicant in order to
restrain him from continuing to work or accessing his office. In addition,
the respondents’ further put notices of the applicant to be denied access
after a few days. This highhanded nature of the respondents should be
checked and public offices should never be run or managed like our
private enterprises or homes. Public power is exercised on behalf of the
people and any actions of the respondents that are clothed with blatant
abuse of authority should be abhorred.

The respondent should have applied to court to review or vary its orders if
at all they genuinely thought that the order was contrary to known
principles of issuance of interim orders instead of trying to show ‘might’ to
court. Court orders ought to be obeyed however ‘stupid’ until set aside or
varied by court in order to preserve the authority of court. In absence of the
law of contempt, court’s role in setting the standards of justice would be
severely compromised to the detriment of society it serves. See Attorney-
General v Times Newspapers Ltd [1974] AC 273

Remedies
The Applicant prayed for general damages of a sum of 500,000,000/=,
exemplary/punitive damages of sum 750,000,000/=. The Applicant also
seeks that the criminal charges of fraud under CRB 125/2020 at Aviation
Police Entebbe International Airport or any other charges arising from the
respondents’ contemptuous conduct be quashed and set aside by this court
and in addition seeks that the respondents be fined 500,000,000/=.

The applicant was forcefully removed from office amidst protests by the
applicant that there was a lawful order directing him to be in office. It is
therefore appropriate in the circumstances of this case for the top officers
directly responsible (Acting Director General and Acting Director Human
Resource and Administration) to be held directly accountable for flagrant
disobedience of the court order. The 1st and 2nd Respondents are ordered to
pay a fine since the disobedience was intentional and deliberate without
any legal justification.

The 3rd and 4th respondents are cautioned against taking the instructions
without applying their mind and abetting contemptuous conduct.

This court is obliged to give punitive sanctions to ensure that the 1st and 2nd
respondents obliges to principles of rule of law and constitutionalism.
In the case of Barbra Nambi v. Raymond Lwanga; Misc. Application
No.213 of 2017, as cited by counsel for the applicant, court held that: “Court
orders have to be obeyed and to indicate to contemnors that there are consequences
for disobedience of court orders”

In addition 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 as demonstrated in the case of Stanbic Bank Ltd & Anor v. The
commissioner General URA MA 42 of 2010, where court imposed
100,000,000/= as sufficient punishment to purge the contempt in that
matter.

The 1st and 2nd Respondent are each directed to pay Shs.15,000,000 as a fine.

The Applicant has been put to unnecessary embarrassment due to the

highhanded conduct of the respondents. It is only fair that this court
awards the applicant punitive damages of 10,000,000/= each from both 1st
and 2nd respondent.
The application is allowed with costs.
I so order.

SSEKAANA MUSA
JUDGE
19th/04/2021