Court name
Commercial Court of Uganda
Judgment date
12 July 2012

Damco Logistics (U) Ltd v First Merchant International Trading Ltd & Anor (Miscellaneous Application-2012/88) [2012] UGCommC 84 (12 July 2012);

Cite this case
[2012] UGCommC 84

THE REPUBLIC OF UGANDA,

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

MISC APPLICATION NO 88 OF 2012

ARISING FROM CIVIL SUIT NO 143 OF 2010

 

DAMCO LOGISTICS UGANDA LTD}............................................                                                                                                                  APPLICANT

VERSUS

  1. FIRST MERCHANT INTERNATIONAL TRADING LTD}
  2. MESSRS TRAVELLERS CHOICE LIMIT}............................                                                                                                                  RESPONDENTS

 

BEFORE HON. JUSTICE CHRISTOPHER MADRAMA

RULING

The Applicant filed this application under section 98 of the Civil Procedure Act, section 33 of the Judicature Act cap 13 laws of Uganda, order 52 rules 1 and 3 of the Civil Procedure Rules seeking the following orders:

  1. A declaratory order that the Respondents have acted in contempt of court by refusing to comply with the decree made in High Court civil suit number 143 of 2010.
  2. The Applicant is granted an order to inspect the Respondents premises at sixth Street industrial area and Bwebajja at Entebbe road.
  3. The decree and orders made in High Court civil suit number 143 of 2010 be enforced.
  4. The Respondents are ordered to obey the decree in High Court civil suit number 143 of 2010 and release the Applicant’s containers.
  5. Costs of the application are provided for.

The application is supported by the affidavits of the Jacob Turyasiima attached to the notice of motion. The grounds of the application are that the Applicant is the judgement creditor against the first Respondent who is still in possession of the Applicant’s containers which the court had ordered to be released to the Applicant. Efforts to execute the decree of the court proved futile because the second Respondent claims to have purchased the Applicants containers from the first Respondent. Consequently the second Respondent denied the Applicant access to the premises where the containers are kept. Furthermore it is alleged that the Respondents have removed some of the containers and taken them to other locations some of which are unknown to the Applicant. The Applicant therefore alleges that the Respondent’s actions amount to contempt of court and are intended to deny the Applicant the fruits of the decree in High Court civil suit number 143 of 2010. Furthermore the Applicant continues to suffer on account of being dispossessed of its containers. Finally the Applicant avers that it is just and equitable that the orders sought are granted.

Judgment in High Court civil suit number 143 of 2009 was delivered on 23 September 2011. In the judgment the first Respondent was ordered among other things to release the Applicant’s containers as soon as it is served with the decree. The decree was served on 30 September 2011 and Jacob Turyasiima was instructed to recover the Applicants containers located at 6th Street industrial area Kampala. On 18 January 2012 Jacob accompanied by policemen went to the premises where the containers were kept but the execution failed because of chaos caused by an unidentified group of men who blocked the gate where the containers were kept.

The deponent made further arrangements to secure more police officers and supervise the execution exercise but when he reached Jinja Road Police Station, he found a letter from KMT advocates stating that the containers had been brought and were now owned by the second Respondent. Consequently the officer in charge of Jinja Road Police Station declined to render any further assistance until after the matter is sorted out between the Applicant and the second Respondent. Consequently the deponent avers from the advice of his lawyers that the Respondent’s actions amount to contempt of court and is intended to abuse and defeat the judicial process. The Applicant contends that court orders and not issued in vain and ought to be obeyed by everybody.

The affidavit of service by Hadengho Moses avers that the application was served on the Respondents. When the matter came for hearing on 11 July 2012 the Applicant was represented by Counsel Peters Musoke while nobody appeared for the Respondents. None of the parties were present.

Learned Counsel prayed for and was allowed to proceed ex parte. Learned Counsel relied on the facts disclosed in the affidavit in support sworn by Mr. Jacob Turyasiima and the judgment of this court for the order disobeyed.  He contended that it was important for people to obey court orders. He relied on the case of Stanbic Bank and Others vs. the Commissioner General Uganda Revenue Authority in MA 0042 of 2010 arising from HCCS No. 0479 of 2010, the decision of Lady Justice Irene Mulyagonja where she penalised Uganda Revenue Authority for Contempt of Court and considers principles relevant to this case. He submitted that every effort had been to inform the Respondents that the containers belong to the Applicant and in case they have any interest, they should lodge the same for consideration in Court. 

Counsel prayed that the application is allowed. Alternatively that Court orders the Respondent to appear in court and show cause why they should not be held liable for contempt and either be imprisoned or be penalised in damages. He prayed that the Respondents managing directors be summoned to show cause why the orders sought should not be issued.

Ruling

The Applicant’s application was originally brought ex parte and it was on the direction of the court that attempts were made to serve the Respondents. Contempt of court proceedings may attract civil or penal consequences as observed in Z Ltd vs. A and Others [1982] 1 ALL ER 556 where Eveleigh LJ held at 567 that contempt of Court may take a wide variety of forms. He said:

“...contempt of court may take a wide variety of forms and the fact that it is regarded as an absolute offence in one form does not necessarily require it to be so treated in another form

Secondly contempt is a serious allegation that requires hearing of the person or persons accused and also cogent evidence to prove it. In Knight and another vs. Clifton and others [1971] 2 ALL E.R. 380 one of the grounds of the cross appeal before the Court of Appeal was inter alia that “the Learned Judge erred in not finding the Third Defendant guilty of contempt”. The court noted that contempt of court should be established by cogent evidence. At page 381 RUSSELL L.J held:

“I will say at once that I do not think it possible for this court, on the cross-appeal, to hold that the judge should have found that there was a contempt of court; an immediate, though not necessarily the only, reason for this is that we have only part of the evidence that was before the judge. 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 the evidence required to establish it must be appropriately cogent. To hold that it was established on only part of the evidence before the judge would be manifestly unjust.” (Emphasis added)

The holding persuades me to hold that an allegation of contempt of court is a serious allegation whether it is of a civil or criminal nature and evidence required to prove it should not adduced by one party only in ex parte proceedings as in this case.

Apart from the requirement to adduce cogent evidence to prove contempt, it is essential that the person accused of contempt of court should be given a fair hearing before an order is made. Secondly contempt of court proceedings help in the administration of justice and respect of the process by the society.

The distinction between civil contempt and criminal contempt affects the procedure but not objective of the law. Criminal contempt deals with interference with the due administration of justice. Again in the case of Z Ltd v A and others [1982] 1 All ER 556 it was held that even third parties may be held in contempt of court. Per Eveleigh LJ of the Court of Appeal at 566–567 that:

... (1) The person against whom the order is made will be liable for contempt of court if he acts in breach of the order after having notice of it. (2) A third party will also be liable if he knowingly assists in the breach that is to say if knowing the terms of the injunction he willfully assists the person to whom it was directed to disobey it. This will be so whether or not the person enjoined has had notice of the injunction.

As far as third party contempt is concerned Eveleigh LJ said at page 567:

“He is liable for contempt of court committed by himself. It is true that his conduct may very often be seen as possessing a dual character of contempt of court by himself and aiding and abetting the contempt by another, but the conduct will always amount to contempt of court by himself. It will be conduct which knowingly interferes with the administration of justice by causing the order of the court to be thwarted.

Because of its importance in the administration of justice and the serious repercussions of contempt proceedings, the court will not make any pronouncement on the application of the Applicant. Instead I accept the alternative prayer of the Applicants Counsel that the managing directors of the two Respondent companies should be summoned to court to show cause why the prayers of the Applicant in the notice of motion should not be granted.

I hasten to add that the notice of motion must be attached to the notice to show cause notwithstanding earlier service on the Respondent’s of the notice of motion alleging contempt of court committed by the Respondents. In the premises, the registrar is directed to issue notices to show  cause why the managing director of the first Respondent and secondly the managing director of the second Respondent should not be held in contempt of court and thereby attract the appropriate consequences for the allegations contained in the notice of motion and supporting affidavit of Jacob Turyasiima.

The registrar shall in conjunction with the court clerk fix a date for the hearing of the notice to show cause as stated above. Costs of the proceedings so far are costs in the cause.

 

Ruling delivered in open court this 12th day of July 2012.

 

Hon. Mr. Justice Christopher Madrama

12th day of July 2012

Ruling delivered in the presence of:

Peters Musoke for the Applicant

Applicant not in Court

 

Ojambo Makoha Court Clerk

 

Hon. Mr. Justice Christopher Madrama

12th day of July 2012