THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(COMMERCIAL DIVISION)
MISCELLANEOUS APPLICATION NUMBER 283 OF 2012
(Arising from Miscellaneous Application No 231 of 2012)
(Arising from Miscellaneous Application No 211 of 2012)
(Arising from Civil Suit No 165 of 2012)
AYEBAZIBWE RAYMOND}................................................ APPLICANT/PLAINTIFF
VERSUS
- BARCLAYS BANK UGANDA LIMITED
- CHARLES ONGWAE
- ANGELLANAMAKULA OFWONO ::::::::::::::::::::::::::::::::::: : RESPONDENT
- BALONDEMU DAVID
- KSMO ADVOCATES
BEFORE HONOURABLE JUSTICE CHRISTOPHER MADRAMA
DIRECTIONS ON REFERENCE BY REGISTRAR
I further wish to comment on the reference of the registrar to the trial judge for determination of whether the respondents in miscellaneous application number 283 of 2012 acted in contempt of court. Miscellaneous application number 283 of 2012 is an interlocutory application. In the main suit, there is an allegation that the respondents acted in contempt of court. In the interlocutory application however more respondents have been named as opposed to the main suit. Secondly the question is whether the trial judge should entertain contempt proceedings based on breach of an order of the registrar.
The interim order allegedly breached was merely extended by me on 6 June 2012. It is however an order of the registrar. Extension of the interim order by me on 6 June 2012 was made after the purported sale of the suit property the subject of the interim order restraining the respondents from dealing in the property. Secondly, an extension of an interim order does not amount to issuing the interim order as alleged. Under order 50 rules 6 of the Civil Procedure Rules, the registrar shall be deemed to be a civil court for purposes of proceedings under the preceding rules. Rule 6 applies to all proceedings before the registrar. The registrar’s court is a special court in that it is not a magistrate’s court but the court of the registrar of the High Court. Article 145 of the Constitution the Republic of Uganda create the office of the registrars which office is a judicial office.
Order 50 rule 7 of the Civil Procedure Rules reads as follows:
"If any matter appears to the registrar to be proper for the decision of the High Court the registrar may refer the matter to the High Court, and a judge of the High Court may either dispose of the matter or refer it back to the registrar with such directions as he or she may think fit."
It is not appropriate for the trial judge to determine the issue of whether there has been disobedience of the order of the registrar on the 7th of May or any other date that may be proved. The issue of when the alleged sale was made and whether it was made in breach of a court order is one of central controversies in the main suit. Secondly, there are different kinds of contempt proceedings. There are contempt proceedings that there are triable by the court which issues the order and there are those triable as an offence by a court with jurisdiction. Ordinarily a court should enforce its own orders even if it means trying someone for contempt of its orders. The granting of an interim order of injunction is within the discretion of a registrar and therefore it is only the registrar who should properly punish anybody for contempt of her order. Secondly on this point, the High Court should be reserved for trial of the main controversy which affects the merits of the suit.
There are several authorities which deal with contempt of court proceedings and I will refer to them without prejudice. In the case of Knight and another vs. Clifton and others [1971] 2 ALL E.R. 380 at page 381 RUSSELL L.J held:
Contempt of court; even of the type that consists in breach of an injunction or undertaking, is something that may carry penal consequences, even loss of liberty, and evidence required to establish it must be appropriately cogent…”
SACHS LJ. At page 393
When an injunction prohibits an act, that prohibition is absolute and is not to be related to intent unless otherwise stated on the face of the order.
It should be noted that the evidence that is required is the same evidence for trial in the main suit. However evidence in the main suit will deal with the merits of the suit which is whether the transfer of title if any should be cancelled among other orders sought. Secondly, contempt of the nature which is punishable by the court which issued the order is contempt of the court which issued the order and not another court. Criminal proceedings on the other hand may be tried by a court having jurisdiction for the offence which is prescribed. Thirdly, an injunction takes immediate effect and disobedience of it does not have to be proved to be wilful or contumacious or insulting to amount to contempt of the court. (See Heatons Transport (St Helens) Ltd v Transport and General Workers Union Cradock Brothers v Transport and General Works Union Panalpina Services Ltd and another v Transport and General Workers Union [1972] 3 ALL E.R. 101.) As to whether third parties can be held liable for contempt of court and the distinction between criminal contempt and civil contempt proceedings is discussed in the cases of: Attorney General v. Times Newspapers Ltd and another [1991] 2 All ER 398 and Z Ltd v A and others [1982] 1 All ER 556 per Eveleigh LJ of the Court of Appeal at 566–567.
In the premises miscellaneous application number 283 of 2012 is referred back to the registrar to establish whether there has been contempt of her interim order of injunction and for appropriate orders which do not amount to determining the controversy in the main suit.
Ruling delivered in open court this 29th day of June 2012.
Hon. Justice Christopher Madrama
Ruling delivered in the presence of:
David Sempala for the Respondent
Applicant’s counsel not in court
Patricia Akanyo Court recording Assistant IT
Hon: Justice Christopher Madrama
28th of June 2012
