Uganda Legal Information Institute - Temporary Injunction https://old.ulii.org/tags/temporary-injunction en Serwanga & Ors v Diamond Trust Bank Uganda Ltd (MISCELLANEOUS APPLICATION NO 846 OF 2016) [2017] UGCOMMC 2 (13 February 2017); https://old.ulii.org/ug/judgment/commercial-court-uganda/2017/2 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/cl" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">CL</a></li><li class="field-item odd"><a href="/tags/temporary-injunction" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Temporary Injunction</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p><strong>THE REPUBLIC OF UGANDA,</strong></p> <p><strong>IN THE HIGH COURT OF UGANDA AT KAMPALA</strong></p> <p><strong>(COMMERCIAL DIVISION)</strong></p> <p><strong>MISCELLANEOUS APPLICATION NO 846 OF 2016</strong></p> <p><strong>(ARISING FROM CIVIL SUIT NO 647 OF 2016)</strong></p> <p><strong>(FORMERLY LAND DIVISION CIVIL SUIT NO 331 OF 2016)</strong></p> <ol> <li><strong>SERWANGA JOVAN} </strong></li> <li><strong>ABISAGI SERWANGA} </strong></li> <li><strong>JOYCE L. NANSUBUGA}</strong></li> </ol> <p><strong>T/A WATERFORD NURSERY AND PRIMARY SCHOOL}................. APPLICANTS </strong></p> <p><strong>VS</strong></p> <p><strong>DIAMOND TRUST BANK UGANDA LTD}.........................................RESPONDENTS</strong></p> <p><strong>BEFORE HON. MR. JUSTICE CHRISTOPHER MADRAMA IZAMA</strong></p> <p><strong>RULING</strong></p> <p>The Applicant commenced this application for interlocutory temporary injunction against the Respondent and/or its agents to restrain it from alienating and disposing off all the properties comprised in KIBUGA Block 14 Plots 410 and 833 Najjanankumbi, Entebbe road, KYAGGWE Block 107 Plot 2667 at Mukono and KYAGGWE Block 107 Plot 674 at Nabuti Mukono and for the costs of the application to be provided for.</p> <p>Counsels filed written submissions. The Applicants are represented by Byamugisha, Lubega, Ochieng &amp; Co. Advocates. The Respondent is represented by MMAKS Advocates.</p> <p><strong>Applicant’s Submissions</strong></p> <p>The gist of the Applicant’s submissions is that the Applicant is in possession/occupation of all the suit land comprised in Kibuga Block 14 Plot 674 at Nabuti, Mukono having been used as security by way of mortgage and subject to the offer letter dated 7th March, 2012 and quoting therein the provision of a fresh term loan facility of Uganda shillings 1,700,000,000/= which referred to and also alleged as having been advanced in cash to Applicants whereas not. What happened is that there was a transfer of the mortgage from the previous mortgager who had failed to service his loan facility to the Applicants.</p> <p>In this application the Applicants seek an injunction to restrain the Respondent from alienating and disposing off all the properties comprised in KIBUGA Block 14 Plots 410 and 833 Najjanankumbi, Entebbe road, KYAGGWE Block 107 Plot 2667 at Mukono and KYAGGWE Block 107 Plot 674 at Nabuti Mukono and the sole issue for determination is whether the injunction should be granted as prayed for.</p> <p>The Applicant claims that by granting the application the status quo of the suit land will be preserved and the suit shall not be rendered nugatory and that the court is enjoined to grant it because by declining to do so would be tantamount to evicting the Applicants from the land by stopping them from running their school business to the new term and it will also result into the applicants losing their marital home yet they are of advanced age and unable to work again and put up shelter.</p> <p>The conditions for the grant of a temporary injunction were laid down in Spry V.P (as he then was) as follows: The applicant must show a prima facie case with a probability of success. Secondly, an injunction cannot be granted unless the Applicant might otherwise suffer irreparable injury which would not be adequately compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience and the applicant must prove that there is a status quo which an order for a temporary injunction is intended to preserve.</p> <p>On whether there is a status quo the order seeks to preserve, Counsel cited the <strong>Osborn’s concise law dictionary 6th Edition and defined the status quo to mean </strong><em>the state of things, the way they are as opposed to the way they could be, the existing state of affairs and that to maintain the status quo is to keep the things the way they presently are.</em></p> <p>Counsel for the Applicants submitted that the Applicant is in possession of property comprised in Kibuga Block 14 Plots 410 and 833 Najjanankumbi Entebbe road as well as Kyaggwe Block 107 plots 2667 and 674 land at Nabuti Mukono which comprise the school and his matrimonial home respectively and this is the status quo. He further submitted that the Applicant’s evidence in the affidavit in support of the Application is unchallenged and should be taken as absolute truth and relied on the case of <strong>Erunasani Kivumbi and 3 others Vs The Registrar of Titles M.C No. 102 of 2009 where Justice Murangira held that it is settled law that when facts are deposed to in an affidavit and the same are not challenged in rebuttal, the same facts are presumed to be admitted by the other party.</strong> He submitted that the status quo is absolute and undisputed and urged court not to alter it by declining this application and prayed that the application be granted as it seeks to preserve the status quo.</p> <p>On whether the Applicant has a prima facie case with real prospect for succeeding in the main suit?</p> <p>On this issue the Applicant’s Counsel cited the case of <strong>Nsubuga and Another vs. Mutawe (1974) E.A 487 where a prima facie case was held to mean a serious triable issue</strong>. Counsel for the Applicant submits that in his Application the Applicant states that at all material time he has conducted primary school business together with his other partners trading as Waterford Nursery and Primary School at Najjanankumbi and the other suit land charged by the Respondent situate at Nabuti Mukono district acts as the Applicant’s matrimonial home. He submitted that the Applicants raise several triable issues in the head suit to wit they contend that the Respondent who is the Applicants’ bankers have not acted in utmost good faith since they have intermeddled in all efforts of the Applicant to redeem the said mortgaged property. He further submitted that from the onset the Respondent wants to foreclose yet the law pertaining to mortgages avails alternatives to which a mortgagee can find a remedy he is more amenable to the mortgager because it accords the Applicants both the legal and equitable remedy of redemption which right cannot be fettered by declining this application. Counsel further submitted that the Applicants’ claim is based on serious triable issues which may be resolved in favour of the Applicant which constitutes probability of success hence there is a prima facie case and the application ought to be granted.</p> <p>On whether the Applicants will suffer irreparable injury which would not adequately be compensated or atoned for by an award of damages?</p> <p>The Applicants’ Counsel submitted that for the last 20 years the Applicant  has struggled to build his school business empire together with his other partners trading as Waterford Nursery and Primary School located at Najjanankumbi comprised in Kibuga Block 14 Plots 410 and 833 at Najjanankumbi respectively and that Kyaggwe Block 107 Plots 410 and 833 land at Nabuti Mukono  which is a further charge is matrimonial home to the 1st and 2nd Applicants which if lost will impact on their socio-economic standing and being in the evening stages of his life not granting the application will be a fatal blow to all his life’s achievements and perhaps sending him to an early grave which cannot be atoned for by way of damages.</p> <p>Counsel cited the case of <strong>Meera Investments Ltd vs. Commissioner General of Uganda Revenue Authority M.A 218 of 2006 </strong>unreported citing with approval the words of Lord Diplock in <strong>American Cyanamid Co. Ltd vs. Ethicon Ltd(1975)ALLER 504,</strong> where FMS Egonda Ntende held that the <em>governing principle that the court should first consider whether if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction would be adequately compensated for the loss he would have sustained as a result of the Defendants continuing to do what was sought to be enjoined between the time of the application and the time of trial. If damages in the measure recoverable at Common Law would be adequate remedy and the Defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted however strong the Plaintiffs claim appeared at that stage</em>.</p> <p>He thus submitted that the Applicants’ affidavit discloses irreparable injuries that cannot be compensated by damages and does satisfy the test/principle governing irreparable injury as it is not in dispute that the Applicants are the registered proprietors of both the mortgaged and charged properties and are in advanced age yet they derive their livelihood from that land and prayed that application be granted.</p> <p>Counsel further submitted that the balance of convenience is in favour of the applicant.</p> <p>The Applicants’ Counsel relied on <strong>Cayne vs. Global Natural Resources P/C (1984) ALLER 225 at 237 where Sir Robert Meggary </strong>held that <em>the balance of convenience is a phrase which of course is always used in this type of application. It is, if I may say so, useful shorthand but much...The balance that one is seeking to make is more fundamental, weightier than mere convenience. I think that it is quite clear from both cases that although the phrase may be substantially less elegant, the balance of risk of doing an injunction</em>.</p> <p>As far as the facts of this case are concerned the Applicant’s Counsel submitted that the balance of convenience does not favour the Respondent but the Applicant who is in physical possession and control of the land which fact is not disputed by the Respondent and it will be a great injustice if the application is not granted because the Applicants will be evicted and the bank will foreclose. Furthermore since the Respondent has neither possession nor has it foreclosed, he prayed that court grant the application to avoid the absurdity.</p> <p><strong>Reply by the Respondent's Counsel</strong></p> <p>On the background of the case the Respondent’s Counsel relied on facts disclosed in the Plaint and Affidavit in support of the Application and submitted that the Applicants admitted being indebted to the Respondent and all they want is more time to settle the debt. It followed that there is no serious question for trial in this suit and prayed that the suit be dismissed.</p> <p>Irreparable injury</p> <p>The Respondent’s Counsel submitted that according to the facility letter dated 3rd April, 2014 property comprised in Kibuga Block 14 Plot 410 and 833 was purchased using the Respondent’s money as such the Applicants cannot suffer irreparable injury in respect of these properties which were purchased using the Respondent’s monies and since they agree to sell them that means if they are sold they will not suffer irreparable injury and as such he prayed that the application be dismissed.</p> <p>On the balance of convenience</p> <p>The Respondent’s Counsel submitted that this ground as well is not in favour of the Applicants since they operate a school on the suit properties at Najjanankumbi save for Kyaggwe Block 107 Plot 674 and any person or entity that buys the mortgaged properties will take over management of the school. Alternatively he prayed that the court invokes Regulation 13 (5) of the Mortgage Regulations 2012 and the Applicants be ordered to deposit under that provision 50% of outstanding sum being Uganda shillings 1,243,349,040/= as a condition for stopping the sale.</p> <p><strong>Submissions in rejoinder</strong></p> <p>In rejoinder the Respondent’s Counsel submitted the brief facts advanced by the respondent are highly contradictory and do not tally with the Respondent’s pleadings and Affidavit in reply and should not be believed because the purported service of statutory notices on the applicant were never served onto the Applicants and there is no proof of such receipt. He further submitted that when the respondent alleges that there was both hand and postage delivery, it is false because the local and common physical address of the Applicant is known to all.</p> <p>He further submitted that the requirement to prove default and notice are not couched in mandatory language because the mortgagee had other remedies and does not have to give notice of default. In the instant case a default has to be established and time of 45 days given for rectification of the default which was not done. The status quo remains that the Applicants are in possession of the mortgaged property and that the Respondents have not yet foreclosed. He prayed that the application is granted.</p> <p><strong>Ruling</strong></p> <p>I have duly considered the application for a temporary injunction together with the evidence by affidavit in support of the application. I have also considered the principles of law for the grant of a temporary injunction and the written submissions summarised above.</p> <p>The grant of a temporary injunction is an exercise of the court’s discretion for purposes of maintaining the status quo until the question to be investigated in the suit is tried on the merits and disposed off finally. The principles for grant of a temporary injunction are summarised in the case of <strong>Giella vs. Cassman Brown &amp; Co Ltd</strong> <strong>[1973] 1 EA 358 </strong>where Spry VP at 360 held that:</p> <p>“The conditions for the grant of an interlocutory injunction are now. I think, well settled in East Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”</p> <p>According to Lord Diplock in <strong>American Cyanamid Co. Ltd v Ethicon [1975] 1</strong> ALL E.R. 504 at page 510 all that the Plaintiff needs to show by his action is that there are serious questions to be tried and that the action is not frivolous or vexatious.  </p> <p>The first test is whether the applicant’s suit disclosed a prima facie case with a probability of success or whether there are serious questions to be tried.</p> <p>The Applicants application was founded on Order 41 rules 1 (a) of the Civil Procedure Rules which provides inter alia that where it is proved by affidavit or otherwise that “any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree”, the court may grant an injunction to maintain the status quo.</p> <p>I have duly considered the application as it is to establish whether it has been proved by affidavit or otherwise that the property in dispute is in danger of being wasted, damaged or alienated by any party to the suit and whether there are serious questions to be tried.</p> <p>The order sought in the application is for a temporary injunction to restrain the respondent/defendant, her agents, servants/assignees or anyone acting under her authority from alienating and disposing of all the properties comprised in Kibuga block 14 plots 410 and 833 Najjanankumbi, Entebbe road, Kyaggwe Block 107 plot 2667 at Mukono and Kyaggwe block 107 plot 674 at Nabuti Mukono. Secondly the applicants pray for costs of the application to be provided for.</p> <p>The grounds averred in the chamber summons are that the respondent issued a notice of default on the mortgagor and has threatened to foreclose all properties described above. Secondly that the respondent has not served the applicants with a notice of default/sale as prescribed by law nor has she engaged the applicants with alternative means to clear the loan and/or redeem the said mortgages. Thirdly that the property comprised in Kyaggwe Block 107 Plot 674 at Nabuti, Mukono is matrimonial property for which no consent was obtained. Fourthly the property comprised in Kibuga Block 14 plots 410 and 833 Najjanankumbi, Entebbe road is sufficient to fully secure the outstanding loan facility without necessarily placing other charges on other properties. Fifthly the interest and penalties charged by the respondent is unfair, unreasonable and unconscionable and warrant the revision or indulgence of this honourable court. On the sixth ground, the applicants aver that the conduct of the defendant or her servants/agents in offering acrimoniously to auction the property on Kibuga block 14 plots 410 and 833 Najjanankumbi, Entebbe road at a public auction to intending purchasers solicited and recommended by the defendant shows lack of good faith and transparency in the transaction. On the seventh ground that the continued sale of the properties shall render the applicants and the entire family, homeless/destitute causing irreparable injury which cannot be adequately atoned for by an award of damages. Lastly that the main suit has a high probability of success and it is in the interest of substantive justice that this court grants the orders sought until disposal of the suit.</p> <p>The application is supported by the affidavit of the first applicant/plaintiff. In paragraph 3 of the affidavit he deposes that the respondent has not issued a notice of default subsequent to the lapse of the mandatory default period but has rather attempted to foreclose all properties described in the application. Secondly, the respondent has not duly served them with notice of sale as prescribed by the law. Thirdly the property comprised in block 107 plot 674 is matrimonial property and no spousal consent was obtained for it. He word for word repeats the averments in the chamber summons that I do not need to repeat.</p> <p>No attachments are included in the affidavit in support of the application. It is contended that the respondent issued a notice of default on the mortgagor but no particulars of the mortgage have been given. The assumption is that all the property as described in the order sought is mortgaged by the applicants to the respondent.</p> <p>Secondly, the respondent complains that no notice of default/sale as prescribed by the law has been issued by the respondent. This application was filed in July 2016. There is no additional fact in the supplementary affidavit in support of facts showing or demonstrating that the applicants have since the notice of default tried or have been paying the outstanding sums.</p> <p>By an affidavit in rejoinder filed on 9th November, 2016 the first applicant discloses further facts by affidavit that there was a previous mortgage of the premises by one Hajji Abdu who mortgaged the facility with the bank which was long overdue and he opted to look for a buyer to clear the bank. They negotiated with the bank personnel and agreed to inherit the loan facility by swapping individual titles as security. The applicants were neighbours to the mortgaged facility and upon advice from Diamond Trust Bank sought to enlarge the boundaries of the school business by keeping both their premises as well as the new premises. They were forced to prematurely enter into the mortgaged premises which were not habitable for a school at that time and they were forced to obtain further overdrafts from the respondent to meet the requirements of the new premises. He contends that the bankers were aware that the applicants underwent constraints to service the transferred loan facility. The bankers acted on a valuation report originally obtained by them from the said Hajji Abdu Kasai projecting Uganda shillings 6,000,000,000/= being the market value and Uganda shillings 4,000,000,000/= being the forced sale value. Uganda shillings 1, 700,000,000/= were not handed over to the applicants in cash but rather the bank repaid itself from the previous mortgagor and the applicants inherited the loan facility by swapping. By the bankers adding a further charge on other property, it was unfair and unconscionable. No statutory notices under the Mortgage Act were duly served on the applicants i.e. notice on default and notice of sale. Given the common school premises known to the respondent, there was no need to use posted services which notices never reached the applicants.</p> <p>The applicant disputes on the basis of the affidavit in reply that Uganda shillings 2,708,430,422/= was due from the applicants and continues to attract interest at a contractual rate since the status quo was maintained by an interim order and the true decretal sum is yet to be determined inter partes.</p> <p>He further deposes that the mortgage deed stipulates other modes of recovery other than foreclosure as the first option. The respondents intend to deprive the applicants of their right to redeem the mortgaged property contrary to doctrines of equity and common law. Furthermore the applicants exhibited an arguable case which warrants the intervention of the court. He further contended that the affidavit in reply is full of falsehoods and a close scrutiny of the main suit raises triable issues.</p> <p>By supplementary affidavit in reply, the respondents Head of Recoveries Mr Paul Ndayisenga on the issue of consent to mortgage matrimonial property deposed that the property in question was mortgaged by the first and second applicants who are husband and wife and the wife duly signed the spousal consent form according to the attachment Annexure "A" and "B".</p> <p>I have further considered the applicants application where it is averred that the interest and penalties charged can be met by part of the property. It is further averred that the penalties charged by the respondent are unfair, unreasonable and unconscionable and warrant revision by this court. The rate of interest is not given, the agreement is not given and no specific facts are given both in the application and in the affidavit in support of the application. No facts relating to the offer to sell the property by public auction are given. These facts are glossed over and instead it is the respondent who attached the agreement. The applicant then in the affidavit in rejoinder adduced an agreement between the respondent and Waterford Nursery &amp; Primary School and Hajji Abdu Kasai.</p> <p>The Plaintiffs action in the plaint is for a declaration that the intended sale of the suit properties is improper, premature, unconscionable, and null and void. Secondly, it is for a permanent injunction to restrain the defendant, her agents and any one acting under authority from alienating, selling or disposing of the suit properties. Alternatively, it is for an order for invocation of other legal recovery means such as joint administration of the school other than foreclosure by the bank. It is further for a declaration that the interest and penalties charged and accruing daily is unfair, unreasonable and unconscionable. The plaintiffs/applicants also seek general damages and costs of the suit.</p> <p>In support of the suit, the facts disclosed are that the plaintiffs purchased the land and buildings from Waterford Nursery &amp; Primary school from one Kasai Abdul and it is situated at Kibuga block 14 plots 410 and 833 at Najjanankumbi. Prior to the purchase the previous owner was a customer of the respondent. Upon the purchase all the loan obligations which initially were that of the vendor automatically fell upon the plaintiffs who secured the loan facility with the same property and additional property comprised in Kyaggwe block 107 plot 2667 and 674 in Mukono. The applicants admit that in order to sustain working capital to sustain the school business as well as meet loan obligations on several occasions the first and second applicants obtained overdraft facilities from the defendant bank. It is further averred that due to hard financial conditions, the plaintiffs have been prevented from settling both the revolving loan facility and overdrafts which has now accumulated to colossal sums.</p> <p>The plaintiff's contention is that there is a discrepancy between monies owed to the defendant and the current market value of all the properties securing the mortgage to warrant an injunction restraining the intended sale. Secondly, the respondent had not observed the statutory requirement of serving the notice of default upon them and there was procedural impropriety in the intended sale. The plaintiff also alleges that no spousal consent was obtained in respect to the property in Mukono Kyaggwe block 107 plot 674 at Mukono. The plaintiff attempted to negotiate for a re-scheduling of the loan but the defendants/respondents refused. There is no specific averment about what the outstanding loan amount is.</p> <p>The plaintiffs applied for and obtained an interim injunction by consent of the parties when the matter was referred by the Land Division of the High Court to the commercial division pending further directions from the commercial court on 14th July, 2016. On the other hand the defendant/respondent in the written statement of defence avers that the plaintiffs/applicants at the time of filing on 24th June, 2016 were indebted to the respondent bank in the amount of Uganda shillings 2,386,405,854/= and Uganda shillings 229,346,450/= which sum continue to attract interest at a contractual default rate.</p> <p>On the other hand in the affidavit in reply to the application some facts are given. The affidavit in reply is that of Timothy Lugayizi an advocate practising with Messrs MMAKS Advocates.</p> <p>His deposition is that the applicants admit indebtedness to the respondent. Secondly that pursuant to the indebtedness, the respondent issued the relevant statutory notices under the mortgage act and the notices were duly served and this specifically are the notice of default and the notice of sale. He attached copies of the notices and proof of postage/service. He further deposes that by 17th October, 2016 Uganda shillings 2,708,430,422/= was due from the applicants. He contended among other things that the injunction can be granted if the applicants deposit Uganda shillings 1,354,215,211/=. Secondly, the respondents do not have a prima facie case with a probability of success because the admitted being indebted to the respondent and only request for more time as pleaded in paragraph 6 of the plaint within which to pay the debt. Thirdly, the second applicant executed all the security documentation in respect to plot 674 and cannot raise the defence of failure to obtain spousal consent.</p> <p>In considering whether the applicant's application discloses a prima facie case, it is not necessary to consider the affidavit in reply to the application. A prima facie case is disclosed by the applicant’s pleadings and affidavit in support of the application. Order 41 rule for 1 (a) of the Civil Procedure Rules expressly provides that the applicant has to prove his or her case by affidavit or otherwise. They have to be serious questions disclosed for trial. In other words it is necessary to adduce the evidence which disclose the prima facie case.</p> <p>I have accordingly considered the averments. With regard to the averment which discloses a question for trial that the property comprised in Kyaggwe Block 107 plot 674 at Nabuti Mukono is matrimonial property for which no consent was obtained. However it is not disclosed in the application who mortgaged the property and who is the spouse. There are no sufficient facts given as to the circumstances under which the property was mortgaged. The respondent on the other hand demonstrated that the second applicant who is the spouse signed the mortgage and executed the statutory spousal consent.</p> <p>It is further averred that the property comprised in plots 410 and 833 Najjanankumbi, Entebbe road is sufficient to fully secure the outstanding loan facility without placing charges on other properties.</p> <p>Without particulars of which property was mortgaged, it is not a question of placing charges on other properties but rather whether the applicants mortgaged the property. Who were the signatories to the mortgage? The applicants admit in the plaint that they mortgaged the property and therefore the property is security for the further overdrafts they took. No prima facie case is disclosed on this ground.</p> <p>Regarding unfair interest and penalties, no facts are given. Regarding the conduct of the defendant or servants, no further sufficient facts are given.</p> <p>Having considered the fact that the applicants do not challenge the notice of default which gives the indebtedness by 30th of March 2016 at Uganda shillings 2,486,698,081/= plus further interest accruing from 4th April, 2016, it was incumbent upon the applicants to give particular facts as to whether they had been paying and why there are triable issues in the relation to the indebtedness which seems not to be in issue. The issue of hardship that the applicants are experiencing is that of entering into unfavourable terms of contract though how it is unfavourable needs to be particularised.</p> <p>Property is mortgaged on the assumption that where there is a default in payment, it can be used to secure the repayment either by management of the property or through sale or foreclosure of the right of the mortgagor to redeem the property. In the case of <strong>Matex Commercial Supplies Ltd and another vs.  Euro Bank Ltd (in liquidation) [2008] 1 EA at page 216</strong> it was held that any property whether it is a matrimonial home or a spiritual house which is offered as security for a loan/overdraft is made on the understanding that the property stands at the risk of being sold by the lender if default is made on the payment of the debt secured.</p> <p>In <strong>Maithya vs. Housing Finance Company of Kenya and another [2003] 1 EA at page 133 </strong>it was held that securities are valued before lending and loss of property by a sale is contemplated by the parties even before the security is formalised. </p> <p>An agreement operates as estoppels against the party trying to assert something different from that mentioned in the agreement. Generally, insufficient facts have been presented for the court to conclude whether there is a prima facie case on most issues. The main issue I have seen is the procedural issue of serving the applicants through the post instead of through the physical contact. The question of whether the applicants were duly served can be considered by perusal of the mortgage deed as to what mode of service was agreed to.</p> <p>By Mortgage agreement dated 9th September 2014 the applicants mortgaged various properties to the respondent bank under paragraph 2 thereof.  Paragraph 13 provides that:</p> <p>            “NOTICES AND DELIVERY OF INFORMATION</p> <p>Any notice to be served or communication to be made under or in connection with this Mortgage shall be made in the address indicated in this Mortgage or any other address furnished by the Mortgagor and the Principal Debtor.”</p> <p>The question raised is therefore a procedural question though it is specifically provided that the address of the applicants is Jovani Serwanga T/A Water Ford Nursery and primary school P.O Box 351 Kampala.</p> <p>I have considered the Mortgage Act on the issue of service of the statutory notices. Regulation 6 of the Mortgage Regulations 2012 requires every notice or other document required by the Act or the Regulations to be given to the mortgagor to be sent to the address given by the mortgagor at the time of entering into the mortgage. Finally regulation 7 of the mortgage regulations requires the mortgagor to notify the mortgagee of change of address and specifically provides as follows:</p> <p>"An act or proceeding taken by the mortgagee shall not be affected by the mortgagor’s claim of a subsequent change in address that was not notified to the mortgagee.</p> <p>The above notwithstanding, provisions as to notice to the mortgagor are fundamental because they give the mortgagor an opportunity to exercise the equity of redemption. Regulation 8 of the Mortgage Regulations 2012 requires sale by the mortgagee to be by public auction and prescribes certain notices to be given to the public and to the mortgagor. A person who contravenes the regulation commits an offence.</p> <p>In the premises the applicant's application and affidavit evidence discloses no sufficient prima facie case for the grant of an injunction and in the main only raise issues of a procedural nature as concerns statutory notices. The Statutory regime is that whether the mortgagor has no defence, the equity of redemption is preserved by regulation 13 of the Mortgage Regulations and can be applied.</p> <p>The above notwithstanding, the applicant has not demonstrated that it has made attempts or that they have made attempts to pay off the loan. The burden is not on the respondent to move the applicants to the negotiating table. Regulation 13 of the Mortgage Regulations 2012 puts the burden on the applicant to prove by affidavit or otherwise that the mortgaged property is in danger of being sold by public auction. Either the advertisement is to be attached to the application or sufficient details as to when the sale was supposed to take place are to be presented to the court. Secondly, the applicant should demonstrate in terms of regulation 13 of the Mortgage Regulations 2012 that it has deposited at least 30% of the forced sale value of the mortgaged property or the outstanding amount. In the very least it should show that it is making attempts to clear its outstanding liability.</p> <p>No effort was made to demonstrate in any material way what is happening in terms of payment being made or efforts to settle the loan amount or to make an undertaking to pay off the loan which has been admitted in the application itself. The applicant clearly averred that some of its properties or some of their properties is sufficient to meet the loan obligation. Details of the loan obligation are not mentioned instead the applicant presents the mortgaged property as being sufficient.</p> <p>In the premises the application lacks merit and regulation 13 will be applied on grounds of waiting to establish whether the procedural steps prescribed by law were duly taken. In any case the respondent cannot sell the property without re-advertising it as prescribed by regulation 13 (7) of the Mortgage Regulations the sale having been stopped by consent of the parties in July 2016 and the stoppage having lasted more than 14 days. Therefore fresh notice is prescribed by the law. For that reason I agree with the respondent’s counsel that in the alternative if the application is not dismissed with costs, a conditional injunction can be granted. The requirement for deposit is statutory and will be operational upon the respondent re-advertising the property for sale. A conditional injunction will accordingly be granted on the following terms:</p> <ol> <li>The respondent shall, re-advertise the property for sale if the applicants do not comply with the terms of this order namely: <ol> <li>The Applicants shall rectify any default at the time of this order within 21 days from the date of this notice by paying all arrears and being on schedule in loan repayments as agreed.</li> </ol> </li> </ol> <p> </p> <ol> <li>Upon failure to rectify the default the Respondent shall be entitled to re-advertise the property for sale though the intended sale, if ensures as prescribed above, can be stopped by the applicants depositing 30% of the outstanding loan amount before sale as notified and as prescribed by Regulation 13 of the Mortgage Regulations.</li> </ol> <p> </p> <ol> <li>Costs of this application shall abide the outcome of the main suit.</li> </ol> <p>Ruling delivered in open court on 13th January, 2017</p> <p> </p> <p><strong>Christopher Madrama Izama</strong></p> <p><strong>Judge</strong></p> <p>Ruling delivered in the presence of:</p> <p>Counsel Steven Zimula for the Respondent</p> <p>Counsels Kibedi Evans for the Applicants</p> <p>Applicants absent</p> <p>Respondent’s officials absent</p> <p>Charles Okuni: Court Clerk</p> <p> </p> <p><strong>Christopher Madrama Izama</strong></p> <p><strong>Judge</strong></p> <p><strong>13th January 2017</strong></p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-524293ced142b857d9c790608bf85fcf"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/commercial-court/2017/2/commercial-court-2017-2.docx" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Feb 2017 11:19:15 +0000 Eunice Logose 27114 at https://old.ulii.org Kiyimba Kaggwa Vs Katende (CIVIL SUIT NO .2109 OF 1984) [1985] UGHCCD 1 (23 April 1985); https://old.ulii.org/ug/judgment/hc-civil-division-uganda/1985/1 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/cl" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">CL</a></li><li class="field-item odd"><a href="/tags/temporary-injunction" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Temporary Injunction</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p><strong>THE REPUBLIC OF UGANDA</strong></p> <p><strong>IN THE HIGH COURT OF UGANDA AT KAMPALA</strong></p> <p><strong>CIVIL SUIT NO .2109 OF 1984</strong></p> <p><strong>E.L.T Kiyimba-kaggwa ;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;PLAINTIFF</strong></p> <p><strong>VERSES</strong></p> <p><strong> Hajji Katende AbduNasser::::::::::::::::::::::;DEFENDANT</strong></p> <p>Civil proceedings-Temporary injunction- Conditions of Grant-Application to show Primafacie case with probability of success and irreparable injury not adequately compensated for by damages-if Court in doubt to decide application on balance of convenience.</p> <p>Civil Procedure- temporary injunction- purpose of grant- purpose to preserve matters in status quo until question to be investigated in suit is finally disposed off.</p> <p>This was an application under 0.37 rr.1 and 9 of the Civil Procedure rules (S.1, 65-3) for a temporary injunction to be issued restraining the Defendant/ Respondent from carrying out any work on the suit premises.</p> <p>The applicant/plaintiff was the registered proprietor of the suit premises, having been granted to leases on the land. Although they had expired, the title had not been cancelled. The applicant /plaintiff applied for renewal of his lease and was likely to succeed.</p> <p>In the mean time, the defendant claimed that he had been offered lease for five years by the Uganda Land Commission.</p> <p>The commissioner of land and Surveys inspected the land and listed the developments made by the plaintiff and wrote a letter to the District Commissioner in which he stated as follow;</p> <p>”It is also infirmed (sic) that the lease (sic) has formally applied for an extension of the lease to enable him complete his developments he has undertaken so far, I am recommending the Uganda Land Commission that an extension of another 5 years be granted from the above facts, I consider that there’s no reason this plot should be a subject of land dispute at all, It has never been the policy of Government to encourage anybody to lease land on which there’s somebody else’s property/properties to an entirely different person as that is the contrary to Natural Justice and indeed to the provision of the Constitution of the Republic of Uganda.”</p> <p>As regards the damage that was being caused to the plaintiffs land by the Defendants activities; the defendant had brought a tractor which was cultivating the land. The development plans of the Defendant were different from those of the Plaintiff.</p> <p>Held.</p> <p>1. The granting of a temporary injunction is an exercise of Judicial Discretion and the purpose of the granting-It is to preserve matters in status quo until the question to be investigated in the suit can finally be disposed off.</p> <p>2. The conditions for the grant of an injunction are first that; the applicant must show a Primafacie case-with a probability of success</p> <p>Secondly, such injunction will not normally be granted unless the appellant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages.</p> <p>Thirdly if the court is in doubt, it will decline an application on the balance of convenience.</p> <p>3. Irreparable injury does not mean that there must not be physical possibility of repairing injury, but means that the injury must be a substantial or material one, that is, one that cannot adequately be compensated for in damages.</p> <p>4. There was a serious question of ownership of the land in question. The plaintiff had proved a Primafacie case with a probability of success; and was likely to suffer irreparable damages which could not be sufficiently atoned for by damages. Moreover, the balance of convenience in this case was in favor of granting relief to the plaintiff who was in possession and was likely to suffer more damages if the land in question was interfered with.</p> <p>Application granted-costs of application to be costs of the cause.</p> <p>Dated this 23rd April 1985</p> <p>Odoki,J</p> <p>Percuriam;</p> <p>“Before I take leave of the application, I wish to express my dissatisfaction with the rule that the plaintiff must show Primafacie case with a probability of success.</p> <p>I say so because as pointed out by Lord Diplock in American Cynamid co Vs Ethicon Ltd (1975)1ALL ER 504, In those cases where the legal cases were rights of parties depend on facts that are in dispute between them, the evidence available to the court at the hearing of the application for an interlocutory injunction is incomplete.</p> <p>It is given on affidavit and has not been tested by or on cross examination.  It seems to me that purpose has to be achieved by giving court the discretion to grant such injunction would be stultified if the discretion was clogged by a technical rule forbidding its exercise if on that incomplete,untested evidence the court evaluated the chances of the plaintiffs ultimate success in the action at 50 percent or less, but permitting its exercise if the court evaluated his chances at more than 50 percent.</p> <p>Moreover, it is not part of courts function at this stage of litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend, nor to decide difficult question of law which call for detailed argument and mature considerations, these are matters to be dealt with at the trial, and it is therefore wrong in principle to require the court to undertake such considerations which may be necessary in order for it to find Primafacie case or probability of success in favor of the plaintiff.</p> <p>It is my humble view that considering the object of an interim injunction and the nature of proceedings at which it is considered, more realistic and fair condition would be to satisfy the court that there’s a serious question to be tried rather than Primafacie case with the probability of success, for as Lord Diplock pointed out in the American Cynamid case (supra) in the house of Lords</p> <p>The use of such expression as a “probability”</p> <p>“A Primafacie case or a strong prima facie case”. In the context of the exercise of discretion of any power to grant an interlocutory injunction leads to confusion as to the object of this form of temporary relief, The court no doubt must be satisfied that the claim is not frivolous or vexatious in other words that there’s a serious question to be tried;</p> <p>I hope that at an appropriate time the court of appeal will take opportunity to reconsider this rule in light of the observation I have made above,”</p> <p>Legislation considered</p> <p>Civil Procedure rules (S.1-65-3)0.37 rr.1 and 9</p> <p>Registration of titles Act (CAP .205)</p> <p>Cases cited:</p> <p>1. Buikwa Estate Coffee Works Ltd Vs Lutabi HCCS no 700 of 1961 MB.44 of 1961</p> <p>2. East African industries Vs Trufoods (1972) EA.420</p> <p>3. Giolla Vs Cassman Brown co. Ltd. (1973) EA 358</p> <p>4.Noormohamood Jammohamood Vs Kassamli Virji Madhani(1953) 20 EACA 24</p> <p>5. Nsubuga Vs Mutawe (1974) EA 487</p> <p>6. Rwenzori tea Co Ltd Vs. Kolsall(1956-57) 8 U.LR 204</p> <p>7. Seargent Vs Partel (1949) E.A.C.A 63</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-5ebaae7338aaa13d59e2942e3d7dc4eb"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/hc-civil-division/1985/1/hc-civil-division-1985-1.docx" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Wed, 13 Apr 2016 11:42:32 +0000 Ben Mulingoki 26072 at https://old.ulii.org Nabasirye & Anor Vs Electoral Commission & Anor (MISC. APPLICATION NO. 456 OF 2015) [2015] UGHCCD 2 (1 December 2015); https://old.ulii.org/ug/judgment/hc-civil-division/2015/157 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-procedure" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Procedure</a></li><li class="field-item odd"><a href="/tags/civil-remedies" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Remedies</a></li><li class="field-item even"><a href="/tags/temporary-injunction" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Temporary Injunction</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p><strong>THE REPUBLIC OF UGANDA</strong></p> <p><strong>IN THE HIGH COURT OF UGANDA AT JINJA</strong></p> <p> </p> <p><strong>MISC. APPLICATION NO. 456 OF 2015</strong></p> <p>(ARISING OUT OF CIVIL SUIT NO. 245 OF 2015)</p> <p> </p> <ol> <li><strong>NABASIRYE K. MARGARET</strong></li> <li><strong>KASUMBA BRUHAN:::::::::::::::::::::::::::::::::::::::::::APPLICANTS</strong></li> </ol> <p> </p> <p><strong>VERSUS</strong></p> <p> </p> <ol> <li><strong>ELECTORAL COMMISSION</strong></li> <li><strong>NANTABA IDAH a.k.a</strong></li> </ol> <p><strong>NANTABA IDAH ERIOS::::::::::::::::::::::::::::::::RESPONDENTS</strong></p> <p> </p> <p><strong>BEFORE:   THE HON. JUSTICE GODFREY NAMUNDI</strong></p> <p> </p> <p> </p> <p><strong>RULING</strong></p> <p> </p> <p> </p> <p>This Application is brought by way of Chamber Summons seeking orders that;</p> <ol> <li>A temporary Injunction issues restraining the Respondents and their agents/servants from presenting or accepting the nomination of the 2nd Respondent as the woman Member of Parliament for Kayunga District until the main suit is heard and determined.</li> <li>That costs be provided for.</li> </ol> <p> </p> <p>The grounds are that;</p> <ol> <li>There is a pending suit 245/15 seeking injunctions and that it has high likelihood of success.</li> <li>That the 2nd Respondent is due to illegally participate in the nominations to contest as the Woman Member for Kayunga District.</li> <li>That the 2nd Respondent has no qualifications to contest as a Member of Parliament.</li> <li>That unless restrained, the 1st Respondent intends to accept the nomination of the 2nd Respondent since they have done that before.</li> <li>That the nomination of the 2nd Respondent infringes the rights of the Applicants and the Applicants shall continue to suffer great injury if the Application is not granted.</li> <li>That it is in the interest of justice that the application be granted.</li> </ol> <p> </p> <p>There is a supporting affidavit deponed by Nabisirye K. Margaret that in summary claims the 2nd Respondent did not attend and obtain the Uganda Advanced Certificate of Education, as her Certificates differ from her claims that she attended ‘O’ Level at Light College Katikamu and ‘A’ Level at Greenville Academy.    The said Certificates indicate instead that she obtained the same from Mukono Town Academy (Paragraphs 16-18).   Further that her names do not appear in the said Certificates and that if there were any changes in her names, this is not supported by a Deed Poll to that effect. (Paragraphs 16-18).  That as a result of the above, the Applicant has not been properly represented in Parliament and hence the Applicant’s rights and freedoms have been grossly abused with the help of the 1st Respondent (Paragraph 20).</p> <p> </p> <p>The 2nd Respondent filed an affidavit in reply to the application.  Therein she avers that the application is bad in law and is barred by law, the Applicants have no locus standi to bring such suit, and that the Applicants have adopted wrong legal procedure and that there is no cause of action disclosed (Paragraph 3).</p> <p> </p> <p>She also depones that her nomination was done in compliance with the law and nobody challenged her academic credentials within the prescribed time (Paragraph 4).</p> <p> </p> <p>In Paragraph 5, 6 and 7 she contends that it she duly qualified, having obtained her ‘O’ Level and ‘A’ Level qualifications from Light College Katikamu and Mukono Town Academy.  Further that the issue of discrepancy in names was rectified on 3/9/2012 through a Statutory Declaration.</p> <p> </p> <p>Finally in paragraph 8, she avers that the purported CV the Applicants are relying on is a forgery which was never published or uttered by her.</p> <p> </p> <p>The affidavit in rejoinder by the 2nd Applicant claims the discrepancy in names is proof that the documents do not belong to the 2nd Respondent, that the Statutory Declaration attached to the affidavit in reply is not registered and does not distinguish the averments based on belief and information and cannot therefore be relied upon.</p> <p> </p> <p>The head suit was brought under the provisions of Article 50 of the Constitution wherein the Plaintiffs claim their rights and freedoms have been infringed by the Defendants’ actions.  That they were denied their civic rights by not being represented by a person who is qualified to represent them in Parliament.</p> <p> </p> <p>They therefore seek Judgment against the 2 defendants restraining them against further infringement of the said rights.</p> <p> </p> <p>Ordinarily, a challenge to a person’s candidature and participation in elections would be regulated by the Parliamentary Elections Act which is one of the enabling laws for the provisions of Chapter 6 of the Constitution.  This court however has jurisdiction over all matters under the Judicature Act and if the plaintiff’s civic rights are infringed upon through questionable representation in the legislature, then the matter can be competently handled by this court.</p> <p> </p> <p>The 2nd Respondent’s counsel in his submissions raised preliminary points of law which I will deal with first.</p> <ol> <li>It was submitted that the suit is barred in law. That the suit should have been subject to the Election laws provided in Chapter 6 of the Constitution e.g. the Parliamentary Elections Act.  That the said Act section 61 thereof provides for the manner of challenging the nomination/election of a person to Parliament.   The same must be supported by signatures of 500 voters (Section 60 (2)).</li> <li>The complaint must be made within 30 days from Gazzetting the results.</li> <li>That section 15 of the Electoral Commission Act sets down the procedure for handling complaints during the electoral process at any stage.  That it is only after one is dissatisfied with the outcome that one can appeal to the High Court.   Ref:<strong> Misc. Application No. 124/2010 Sabita H.K. Vrs. Maket Latif</strong>.</li> <li>That the person being sued is the wrong party.  That the names used by the Plaintiffs/Applicants do not belong to the 2nd Respondent.  Ref: <strong>Real Gaba Market property Owners Vrs. Kampala Capital City Council</strong>.</li> </ol> <p> </p> <p>Counsel for the Respondent submitted in reply to the preliminary objections that the head suit is a complaint about infringement of civic rights under the Constitution (Article 50).</p> <p> </p> <p>Secondly that the matter cannot be handled by the Independent Electoral Commission which is not a party to the suit.  Regarding the locus of the Applicants, it was submitted that the whole suit revolves around the identity of the 2nd Respondent/Defendant whose identity cannot be ascertained.</p> <p> </p> <p>Considering the preliminary objections, it is my observation that the head suit as rightly pointed out by both counsel is about infringement of rights under Article 50 of the Constitution.</p> <p> </p> <p>Under Article 50 (1) Any person who claims that a fundamental or other right or freedom guaranteed under this Constitution has been infringed or threatened, is entitled to apply to a competent court for redress which may include compensation.</p> <ol> <li>Any person……………may bring an action against the violation of another person’s or group’s human rights.</li> </ol> <p> </p> <p>It is my finding in respect of the above provisions that the High Court is a competent court to handle the instant matter.</p> <p> </p> <p>The Plaintiff’s claim is against the Defendants for breach of fundamental freedoms and rights.   Reference was made to the case of <strong>Hon. Sabila Herbert Kale Vrs. Maket Latif</strong>.    In that case, the challenge to the candidature of Hon. Sabila was brought under Article 80 (2) of the Constitution and it was clearly labelled as an Election petition.  Hon. Sabila had picked forms and intended to be nominated as a candidate for Member of Parliament.   The Judge found that the matter was premature and could not be considered an Election Petition since the said election had not yet taken place.</p> <p> </p> <p>The above matter is different and distinguishable in that it had been brought up as an Election petition under Article 80 (2) and the Parliamentary Elections Act.</p> <p> </p> <p>The instant suit is not an Election petition and is filed outside the provisions of Article 80 and the Parliamentary Elections Act.  The objection is on that ground overruled.</p> <p> </p> <p>The last objection is that the Applicants/plaintiffs have sued the wrong party as the names used in the pleadings against her are different.   The authorities of;</p> <ol> <li><strong>Real Gaba Market property Owner Vrs. Kampala Capital City Authority;</strong></li> <li><strong>V. G. Keshwala t/a V.G. Keshwala &amp; Sons Vrs. MM Sheik Dawood </strong>were cited.</li> </ol> <p> </p> <p>I have read the said authorities.  They are both distinguishable from the instant case.  In both cases, the issue was about non-existent companies not registered as opposed to registered and incorporated companies.</p> <p> </p> <p>Further, in <strong>Real Gaba Market Property Owner Vrs. Kampala Capital City Authority</strong>, the court found that the company referred to was non-existent, not being registered or incorporated within the Companies Act.   The same was the position in the <strong>Keshwala case (supra)</strong>. </p> <p>In the instant case, the suit is based on the premises that the 2nd defendant is not the person she purports to be, given her contradictory credentials and unexplained names.</p> <p> </p> <p>On the above premises therefore the objection is not sustainable and is also overruled accordingly.</p> <p> </p> <p><strong>Temporary Injunction:</strong></p> <p>The courts will ordinarily grant temporary injunctions on the following conditions;</p> <ol> <li>The head suit has likelihood of success.</li> <li>The applicant will suffer irreparable damage incapable of being atoned for in damages.</li> <li>If in doubt, the court will decide the matter on a balance of convenience.</li> </ol> <p> </p> <p>In support of the above grounds, it was submitted by counsel for the applicants that the 2nd Respondent is not qualified to be nominated for lack of academic qualifications.  That the first Respondent accepted her nomination when not qualified and is likely to do the same.   The applicants cite the difference in the schools that appear on her CV and the ones indicated on her Certificates (‘O’ Level and ‘A’ Level).   They also question the use of names and abbreviations e.g. <strong>Nantaba Idah, Nantaba Idah E. and Nantaba Idah Erios </strong>that because of these uncertainties, the only conclusion is that she is not qualified.</p> <p> </p> <p>In response, the 2nd Respondent relies on a Statutory Declaration dated 3rd September 2012 in which she tries to explain away the discrepancies which according to the 2nd Respondent, she uses interchangeably.  She also claims her Certificates ‘O’ and ‘A’ level bear the names of the schools where she sat the examinations as they are the ones that had examination Centre numbers.</p> <p> </p> <p>The Statutory Declaration is contested by the Applicants in rejoinder as not being registered and that it is materially defective and cannot be relied upon.</p> <p> </p> <p>Looking at the submissions, it is clear the enumerated differences and uncertainties raise triable issues that call for investigation and determination by court.  I cannot say that there is a high likelihood of success, but the fact remains that the issues call for proper investigation to rule out the possibility that the 2nd Respondent is who she claims to be and is therefore qualified to represent her Constituency in Parliament.</p> <p> </p> <p>It is submitted further that the irreparable injury the applicants are likely to suffer is the denial of representation of the Applicants and therefore denial of their rights to participation in civic activities through proper representation in Parliament.</p> <p> </p> <p>Finally, regarding the balance of convenience, it is submitted that the whole District stands to lose by having no qualified representative in the Parliament.</p> <p> </p> <p>For the Respondent, it is submitted that granting the injunction would have the effect of disposing of the main suit.</p> <p> </p> <p>That the national exercise of nomination is carried out once and should it transpire that the 2nd Respondent is qualified, she would not be nominated again.</p> <p> </p> <p>I have considered the submissions.  Regarding irreparable injury, it is true having a Member of Parliament with doubtable qualifications is one that cannot easily be atoned for in terms of damages.</p> <p> </p> <p>The Respondent has had all the time to correct the doubts, (that is if they are capable of being corrected).</p> <p> </p> <p>There was no reply to the challenge that the Statutory Declaration is not registered.  This leaves the said declaration hanging.</p> <p> </p> <p>It would be better for the Respondent to deal with the question of her academic credentials, conclusively other than having doubts hanging over her, raising eyebrows and glances when if cleared she would not have to explain herself continuously.   In that respect, the balance of convenience does not favour the 2nd Respondent.</p> <p> </p> <p>In conclusion, I find that the Applicants have made out a case for grant of a Temporary Injunction.</p> <p> </p> <p>The application is allowed and is granted in the terms laid out in the chamber Summons.   Costs will be in the cause since the head suit is still pending.</p> <p> </p> <p> </p> <p><strong>Godfrey Namundi</strong></p> <p><strong>Judge</strong></p> <p><strong>1/12/2015</strong></p> <p> </p> <p> </p> <p>1/12/2015:</p> <p>Asingwire Martin for Applicant</p> <p>Asuman Nyonyintono for 2nd Respondent</p> <p> </p> <p>Court: Ruling delivered in Court.</p> <p> </p> <p> </p> <p><strong>Godfrey Namundi</strong></p> <p><strong>Judge</strong></p> <p><strong>1/12/2015</strong></p> <p> </p> <p> </p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-49a55497afe66072b1998d0f2194e668"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/hc-civil-division/2015/157/hc-civil-division-2015-157.docx" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Wed, 06 Jan 2016 10:20:45 +0000 Ben Mulingoki 25845 at https://old.ulii.org Legal Brains Trust Ltd v Attorney General & anor (MISCELLANEOUS APPLICATION NO.638 OF 2014) [2014] UGHCCD 171 (5 December 2014); https://old.ulii.org/ug/judgment/high-court-civil-division/2014/171 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/administrative-action" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Administrative Action</a></li><li class="field-item odd"><a href="/tags/prima-facie" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Prima Facie</a></li><li class="field-item even"><a href="/tags/temporary-injunction" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Temporary Injunction</a></li><li class="field-item odd"><a href="/tags/cl" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">CL</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p> </p> <p><strong>THE REPUBLIC OF UGANDA</strong></p> <p><strong>IN THE HIGH COURT OF UGANDA AT NAKAWA</strong></p> <p><strong>MISCELLANEOUS APPLICATION NO.638</strong><strong> OF 2014</strong></p> <p><strong>(ARISING OUT OF MISCELLANEOUS CAUSE NO.54 OF 2014)</strong></p> <p> </p> <p><strong>LEGAL BRAINS TRUST (LBT) LTD ::::::::::::::::::                  APPLICANTS</strong></p> <p> </p> <p><strong>V E R S U S</strong></p> <p> </p> <ol> <li><strong>ATTORNEY GENERAL </strong></li> <li><strong>NATIONAL COUNCIL OF SPORTS :::::::::::::                   RESPONDENTS  </strong></li> </ol> <p> </p> <p><strong>before: hon. lady justice elizabeth ibanda nahamya</strong></p> <p> </p> <p><strong>                                      R U L I N G</strong></p> <p> </p> <p>This Ruling is in respect of an Application for a Temporary Injunction. The Applicant made the Application by way of Chamber Summons under Order 41 Rules 1, 2 and 9 of the Civil Procedure Rules S.I 71-1 and Section 98 of the Civil Procedure Act Cap 71. It seeks an order for a Temporary Injunction restraining the Respondents, their agents, servants, or any person from implementing or enforcing Regulations 3(1), 4(4), 20(1) and 20(2) of the National Council of Sports Regulations S. I. No. 38 of 2014 until the disposal of the Miscellaneous Cause  No. 54 of 2014. It also seeks that costs of the Application be provided for.</p> <p>The Application is supported by Affidavit deponed by Ms. <strong>Enid Akampulira, </strong>the Legal Officer of the Applicant dated 6th day of October, 2014, filed by Counsel Ssemakadde Isaac of Centre for Legal Aid.</p> <p>The grounds upon which the Application is based are particularized in the Affidavit set out above but in brief are that;</p> <ol> <li>The Applicant has filed Miscellaneous Cause No. 54 of 2014 for prerogative reliefs to prevent the implementation of the impugned Regulations because they are a result of illegal, irrational and unconstitutional decision and/or action on the part of the Minister responsible for Sports and the 2nd Respondent ;</li> </ol> <p> </p> <ol> <li>There are over Fifty two (52) voluntary Sports Associations and Federations presently registered with, affiliated to and/or recognized by the Respondents as National Sports Association for the respective fields since the coming into force of the Principle Act in 1964 whose rights are directly affected by the impugned Regulations;</li> </ol> <p> </p> <ol> <li>Unless the Respondents and their agents or servants are restrained from implementing the impugned Regulations, the operations and fundamental rights of National Sports Associations which are either unincorporated or incorporated under the Companies Act for the time being shall be irreparably affected to the detriment of the public interest;</li> </ol> <p> </p> <ol> <li>It is urgent that the <em>status quo</em> be preserved by blocking the Respondents from effecting the impugned Regulations pending the resolution of the main suit;</li> </ol> <p> </p> <ol> <li>The balance of convenience favors the National Sports Associations which are either unincorporated or incorporated under the Companies Act for the time being and the public for whose benefit the Applicant has filed the main suit because they stand to lose more if the Respondents are permitted to implement the impugned Regulations pending the resolution of the main suit;</li> </ol> <p> </p> <ol> <li>In the interest of protecting the Constitution, it is just and expedient to allow this Application and grant the Applicants the Injunctive relief sought.</li> </ol> <p> </p> <p>The Application was opposed by an Affidavit in Reply deponed to on the 16th day of October, 2014 by <strong>Ms. Maureen Ijang</strong>, a State Attorney in Attorney General’s Chambers and filed by Counsel Richard Adrole, for the 1st Respondent. There was also an Affidavit in Reply dated 10th day of October, 2014  and sworn by <strong>Mr. Jasper Aligaweesa, </strong>the General Secretary of the 2nd Respondent, which was filed by Counsel Julius Kavuma Kabenge and Mohammed Golooba of Messrs Kavuma Kabenge &amp; Co. Advocates. The Applicant filed an <strong>Affidavit in</strong> <strong>Rejoinder </strong>on the 14th day of October, 2014. Both Counsel made oral submissions on the matter.</p> <p><strong>Background</strong></p> <p>Before I go into the merits of the Application, it is prudent to know its background. Briefly, it is alleged that the Respondents enacted a set of Regulations known as <strong>Statutory Instrument No. 38 of 2014 the National Council of Sports Regulations.</strong> The Applicant filed <strong>Miscellaneous Cause No.54 of 2014</strong> seeking prerogative reliefs to prevent the implementation of the enacted Regulations because they violate the provisions of the <strong>National Council of Sports Act Cap 48, the Principal Act </strong>in particular,<strong> Sections 3 Clause 1, 3(2) and 10</strong>. The Applicant further contends that the enacted Regulations also violate or threaten to violate the Constitutional rights of existing National Sports Associations. Articles 29(1) (e) of the Constitution of the Republic of Uganda on Freedom of Association; Article 21(1) on the right to equality from non discrimination; Article 26 (1) and (2) regarding the protection of property from compulsory deprivation and Article 45 of the same Constitution which relates to emerging rights that may not be explicitly listed in the Constitution of the Republic of Uganda 1995.</p> <p> </p> <p><strong>The law on Injunctions</strong></p> <p>An Injunction is a Court order requiring an individual to do or omit doing a specific action. It is an extraordinary remedy that Courts utilize in special cases where preservation of the <em>Status Quo</em> or taking some specific action is required in order to prevent possible injustice. They are issued early in a law suit to maintain the <em>Status Quo</em> by preventing a Defendant from becoming insolvent or to stop the Defendant from continuing his or her allegedly harmful actions. Choosing whether to grant Temporary Injunctive relief is a discretionary power of the Court. In the case of <em>State v. Odell, 193 Wis.2d 333 (1995)</em>, Court stated that an Injunction is a prohibitive, equitable remedy issued or granted by a Court at suit of a Petitioner directed at a Respondent forbidding the Respondent from doing some act which the respondent is threatening or attempting to commit or restraining a Respondent in continuance thereof, such act being unjust, inequitable or injurious to the Petitioner and not such as can be addressed by an action at law.</p> <p>In deciding whether or not to grant an Injunction, Courts have been guided by the consideration that unless the Injunction is granted, the damage so occasioned is such that the Applicant would not be adequately compensated by an award of damages. Secondly, the Applicant must show that his case has a probability of success. Thirdly, if the Court is in doubt it will decide the Application on the balance of convenience. Fourthly, the Applicant must show or prove that the aim of the Temporary Injunction is to maintain the <em>Status Quo</em> until the determination of the whole dispute. See <strong><em>Robert Kavuma vs. M/s Hotel International, S.C.C.A. No. 8 of 1990; Kiyimba Kaggwa vs. Haji A.N. Katende [1985] HCB 43.</em></strong></p> <p><strong>Section 38 Judicature Act Cap 13 </strong>gives this Honourable Court power to grant Orders of a Temporary Injunction in all cases in which it appears to it to be just and convenient to do so to restrain any person from doing acts. The grant of a Temporary Injunction is invariably in the discretion of the Court.</p> <p>The general considerations for the granting of a Temporary Injunction under <strong>Order 41 r. 2 CPR </strong>are that;</p> <p><em>(1) <strong>In any suit for restraining the Defendant from committing a breach</strong> <strong>of contract or other injury of any kind, whether compensation is claimed in the suit or not, the Plaintiff may, at any time after the commencement of the suit, and either before or after Judgment, apply to the Court for a Temporary Injunction to restrain the Defendant from committing the breach of contract or injury complained of, or any injury of a like kind arising out of the same contract or relating to the same property or right.</strong></em></p> <p> </p> <ul> <li> </li> </ul> <p>In ordinary situations, the principles governing the grant of a Temporary Injunction are well settled although each case must be considered upon its own peculiar facts. See <strong><em>American Cyanamid Co v Ethicon Ltd [1975] AC 396,</em></strong> Lord Diplock laid down guidelines for the grant of Temporary Injunctions that have been followed in Ugandan cases of <strong><em>Francis Babumba and 2 others Vs Erisa Bunjo, HCCS No. 697</em></strong> <strong><em>of 1990</em></strong> and <strong>Robert Kavuma Vs M/S Hotel International SCCA NO.8 of 1990. </strong>These principles are that;</p> <ol> <li>The Applicant must show that there is a substantial question to be investigated with chances of winning the main suit on his part;</li> <li>The Applicant would suffer irreparable injury which damages would not be capable of atoning if the Temporary Injunction is denied and the <em>Status Quo</em> not maintained; and</li> <li>The balance of convenience is in the favour of the Applicant.</li> </ol> <p>I now consider the issues as were put before me. That is;</p> <ol> <li>Likelihood of success</li> <li>Issue of <em>Status Quo</em></li> <li>Irreparable damages</li> <li>Balance of convenience.</li> </ol> <p><strong>Issue 1</strong></p> <p><strong>Whether there is a </strong><em>Prima Facie</em><strong> case with a probability of success.</strong></p> <p>In answering this question, the Applicant is required to show that there is a <em>Prima Facie</em> case with a probability of success of the pending suit. The Court must be satisfied that the claim is not frivolous or vexatious and that there is a serious question to be tried. <strong><em>(See American Cynamide versus Ethicon [1975] ALL ER 504).</em></strong> </p> <p>For there to exist a <em>prima facie</em> case with a probability of success, the Court must be satisfied that the claim is not frivolous or vexatious. In other words, that there is a serious question to be tried. In <strong><em>Robert Kavuma Vs M/S Hotel International SCCA NO.8 of 1990 [Supra], Wambuzi CJ</em></strong> (as he then was) was emphatic and stated that the Applicant is required at this stage of trial, to show a <em>Prima Facie</em> case and a probability of success but not success.</p> <p> Furthermore, in order to establish whether the suit establishes a <em>prima facie</em> case with probability of success, it is necessary to refer to case law which is to the effect that although the Applicant has to satisfy Court that there is merit in the case, it does not mean that one should succeed. It means there should be a triable issue, that is, an issue which raises a <em>prima facie</em> case for adjudication. <strong><em>See</em></strong> <strong><em>Kiyimba Kaggwa vs Abdu Nasser Katende [1985] HCB 43, Wanendeya V Norconsult [1987] HCB 89; Devon V Bhades [1972] EA</em> <em>22.</em> </strong>Also the Applicant must demonstrate that there are serious issues to be tried.  See: <strong><em>Daniel Mukwaya v. Administrator General, H.C.C.S No. 630 of 1993 [1993] IV KALR I.</em></strong>  If the Court is in doubt as to any of the above factors, the case ought to be decided after weighing doubts against certainties of the risks of doing injustice; also referred to as the “balance of convenience”.  See: <strong><em>Francome v. Mirror Group Newspapers [1984] IWLR 892.</em></strong></p> <p>In support of this Application, Counsel Ssemakadde Isaac, for the Applicants, addressed this Court on Four (4) cardinal principles for the grant of a Temporary Injunction. That is;</p> <ol> <li> There must be a <em>status quo </em>to be preserved;</li> <li> There must be a <em>prima facie</em> case in the main cause Miscellaneous Cause 54 of 2014.</li> <li>The Applicant will suffer irreparable harm in case the Injunction is not granted;</li> <li> The balance of convenience in favor of the Applicant.</li> </ol> <p>For a clear discussion of these principles, Counsel Ssemakadde invited the Court to acquaint itself with the recent decisions of the <strong>Constitutional <em>Court in Gladys Nakibuule Kiseka versus the Attorney General Constitutional Application No.90 of 2013</em></strong> particularly pages 4 and 5, where it was held that ‘‘<em>for the Applicant to succeed in this Application, she has to discharge the burden of proof and the balance of power  and that she has a prima facie case to put before this Court that failure to grant her the orders prayed for will cause her to suffer irreparable damage and if the Court is in doubt as regards these two (2), then the Court has to determine the application on a balance of convenience.</em></p> <p> </p> <p><strong><em>Status quo</em></strong></p> <p>Counsel S        emakadde referred Court to paragraphs 8, 9, 10, 11 and 12 of the Affidavit of Enid Akampulira filed in Court on the 6th of October 2014. P<strong>aragraph 8 </strong>of the Affidavit states that there are over 52 voluntary Sports Associations and federations presently registered with, affiliated to and or recognized by the Respondents as National Sports Associations for the respective fields and or disciplines since the coming into force of the Principle Act in 1964 whose rights are directly affected by the impugned Regulations. <strong>Paragraph 9</strong> thereof is to the effect that unless the Respondents and their agents are restrained from implementing the impugned Regulations, the operations and fundamental rights of National Sports Associations which are either unincorporated or incorporated under the Company’s Act Cap 110 for the time being shall be irreparably affected to the detriment of the public interest.</p> <p> </p> <p>In <strong>paragraph 11 </strong>of her Affidavit in support of the Chamber Summon’s, Ms. Enid  Akampulira avers  that the affected National Sports Associations have existing contractual rights, international affiliations, competitions, projects, programmes and other proprietary arrangements with third parties here in Uganda and abroad which are imperilled by the impugned regulations. She further contends in <strong>paragraph 12</strong> the Respondents have no reasonable justification or lawful excuse for adopting the Regulatory scheme which has the purpose of outlawing National Sports Associations which have hitherto enjoyed recognition by the government.</p> <p> </p> <p>Counsel Ssemakadde made reference to <strong>paragraph 6</strong> of the Applicant’s Affidavit in Rejoinder deponed to by Enid Akampulira filed in Court on the 14th October 2014. In <strong>paragraph 6,</strong> the Deponent states that in specific reply to <strong>paragraphs 5, 6, 7(b) and 10 of the Affidavit in Reply of Mr. Jasper Aligawesa,</strong> the Deponent avers that the 2nd Respondent’s view of the <em>status quo</em> is plainly wrong and misconceived. The impugned Regulations explicitly target and recognize the existence of National Sports Associations which are either unincorporated or incorporated under the Company’s Act for the time being.  Ms. Enid Akampulira criticized <strong>paragraph 5 of Mr. Jasper Aligawesa’s Affidavit in Reply.</strong> Mr. Jasper averred that there are no national Associations for the time being but ‘animals’ called voluntary amateur Sports Associations owned by individuals and working with the 2nd Respondent. According to Ms. Enid Akampulira, this is a fallacy because there would be no need for using the word “National Sports Associations” in <strong>Statutory Instrument No. 38 of 2014</strong>. Ms. Enid Akampulira also contended that the law maker is aware of the <em>status quo</em> which is sought to be affected by the Regulatory scheme intended to be introduced by this instrument.</p> <p>Secondly, the Deponent, Ms. Enid Akampulira in <strong>paragraph 6</strong> of her Affidavit states that the impugned Regulations do not and cannot purport to transform the affected National Sports Associations into public bodies as falsely contended by the 2nd Respondent. Ms. Enid invited this Court to review paragraph 6 of Mr. Jasper Aligawesa’s Affidavit in Reply. Mr Aligawesa avers that the National Sports Associations has developed and attracted enhanced public interest hence, the need to make Regulations to create all inclusive National Associations which will run sports activities in trust for the people of Uganda other than voluntary amateur Sports Associations which were private and restrictive in nature.</p> <p> </p> <p>The crux of the Applicant’s case is that Government cannot transform private associations into public bodies. The Applicant contends that doing so is a clear expropriation of property and a clear example of excessiveness of power which is an illegal, irrational and unconstitutional purpose sought to be achieved. In reference to paragraph<strong> 6</strong> of Ms. Enid Akampulira’s Affidavit in Rejoinder, she states that the 2nd Respondent has adduced no evidence whatsoever that there has been an irreversible change in <em>status quo </em>so as to render the present Application null and void.</p> <p> </p> <p>Counsel Ssemakadde, for the Applicants, further submitted that the Affidavit of service Court filed in Court on the 17th October 2014 indicates  that the Respondents were duly served with an Interim Order of this Court issued on the 3rd October 2014 on the eve of the threatened ban deadline. The Order was served upon the Respondents jointly on the 6th of October 2014. It serves as a notice to the Respondents to prevent them from implementing the impugned Regulations. Counsel Ssemakadde submitted that this is the <em>status quo</em> that the Applicants wish to preserve pending the disposal of the main cause.</p> <p> </p> <p>In his closing submissions, Ms. Ssemakadde referred to the Affidavit in Reply filed by Ms. Maureen Ijanga of the 1st Respondent, the Attorney General. The Applicants submitted that the 1st Respondent’s Affidavit in Reply is silent on <em>status quo</em> because there is no particular paragraph dedicated to showing Court that the <em>status quo</em> has been irretrievably broken or changed as at the date of arguing the Application. Counsel Ssemakadde’s submissions were that there is a worthwhile <em>status quo</em> to be protected by the injunction sought.</p> <p> </p> <p> </p> <p> </p> <p><strong><em>Prima Facie</em></strong><strong> case</strong></p> <p>The second test for the grant of a temporary injunction is that there must be a <em>prima facie</em> case in the main cause. Counsel Ssemakadde invited this Court to answer this test in the affirmative. He relied on the case of <strong>Gladys Nakibuule</strong> decision on page 5 where a <em>prima facie</em> case is stated to be made out on satisfying Court that there is a good and arguable claim to the right that the applicant seeks to protect. The Applicant has to show that there is a serious issue as opposed to one that is frivolous or vexatious to go to trial and that the Applicant has a probability of success. At this stage, the Applicant does not need to prove at this stage that he has a certainty of success. The Applicant must show by way of pleadings that the violation alleged and the effect of the violation.</p> <p> </p> <p>Mr. Ssemakadde also referred to the leading case of <strong><em>Ananias Tumukunde versus Attorney General Constitutional Application No.03 of 2009 at page 11</em></strong> with regard to the principle that there is a <em>prima facie</em> case. The Court must be satisfied that the claim is not frivolous or vicious. There must be a serious case to be tried. On page 13, the Court concluded that the matter before it involved serious issues which can be adjudicated. In the Court’s view, ‘serious matters’ were neither frivolous nor vexatious and for that reason the Applicant had shown a <em>prima facie</em> case with a probability of success.</p> <p>It was Counsel Ssemakadde’s submission that this Court should be guided on the standard of review which it must follow in deciding whether there is a <em>prima facie</em> case. I note that the duty of Court in resolving an Application of this nature at this stage of Court proceedings <em>is not to delve into nor to resolve conflicts of evidence on Affidavits but to consider the facts upon which either party may ultimately depend on. It is also not to decide difficult questions of law calling for detailed arguments and mature considerations. It is not an occasion for the Court to resolve that either party or both are clearly wrong or have no credible evidence all these must be left for consideration at the actual trial of the substantial cause. (Emphasis added)</em></p> <p> </p> <p>In view of the above legal principles Mr. Ssemakadde referred this Court to <strong>paragraph 7</strong> of the Affidavit in Rejoinder the Applicant deponed to by Enid Akampulira filed in this Court on the 14th October where she states that the legality and the propriety of the impugned Regulations are weighty and justiceable matters to be decided in the main cause and for that reason it is just and convenient to grant the Temporary Injunction sought by the Applicant.</p> <p> </p> <p>In opposition to this Application, Counsel Adrole, for the 1st Respondent, submitted that the Applicant does not have a <em>prima facie</em> case with a likelihood of success as the main application for Judicial Review is bad in law because it is barred by statute. Mr. Adrole acknowledged the fact that an Application has been filed by the Applicants <em>vide</em> <strong>Miscellaneous Cause No.54 of 2014</strong> for Prerogative Orders to invalidate and prevent the implementation of certain provisions of the <strong>National Council of Sports Regulations under Statutory Instrument No.38 of 2014</strong>.</p> <p> </p> <p>Counsel Kavuma, for the 2nd Respondent, submitted that where the main suit is a nullity, all the subsidiary proceedings are a nullity. Mr. Kavuma submitted that the main suit doesn’t exist, hence, the Application before Court for a Temporary Injunction is not competent. It was Counsel Kavuma’s submission that this Honourable Court declares itself that it does not have jurisdiction to try Constitutional matters and direct the Applicants to file the suit in appropriate forum. </p> <p> </p> <p>Counsel Golooba Muhammed, for the 2nd Respondent associated himself with the submissions of his fellow Counsel for the Respondents. Mr. Golooba submitted that as far as Judicial Review is concerned, the case in point is <strong><em>Kazibwe Joshua versus the Commissioner of Customs URA its Miscellaneous Application No.44 of 2007</em></strong> where the Learned Justice Kiryabwire held that <em>judicial review is concerned not with the decision but the decision making process. Essentially judicial review involves an assessment of the manner in which the decision is made</em> which is not in issue here. Mr. Golooba contends that the Applicants are seeking Court’s intervention in a matter that is not in a decision making process.  The decision has already been passed. In addition, in the  case of <strong><em>Tumwebaze versus Makerere University Council and 3 others Civil Application No.353 of 2005,</em></strong>  Justice Kasule held that <em>prerogative orders look to the control of the exercise and abuse of power by those in public offices rather than at providing final determination of private rights which is done in normal civil suits.</em> In furtherance of his submissions, Mr. Golooba submitted that the Applicants are seeking the determination of rights by way of judicial review which is contrary to the already established principle of the Judiciary.</p> <p> </p> <p>Counsel Golooba submitted that this Court does not have jurisdiction to entertain the main application. It cannot also have jurisdiction to grant a Temporary Injunction. Mr. Golooba further contended that the High Court does not have powers to restrain the implementation of the law and that one can only be a preserve of the Constitutional Court to grant temporary reliefs pending the interpretation of the Constitution. It was his submission that this Application is improperly before this Honourable Court. Counsel Golooba prayed that the Court be pleased to dismiss this Application with costs.</p> <p> </p> <p>It should be noted that Counsel for the Applicant and the Respondents have addressed me on Judicial Review which is the subject of the main Application yet the Application before me now is for a grant of a Temporary Injunction. There are laid down considerations that have been established by Courts for a grant of judicial review. The same considerations have been pointed out by both Counsel. I appreciate both Parties’ submissions. However, I am not inclined to follow them in this Application. I will allow the parties to address me on Judicial Review in the main Application. Whenever the parties are ready to address me on the same, they are free to adopt their submissions in this Application for the main Application. I would urge litigants to narrow their submissions to a given matter especially in miscellaneous Applications like this one. This is because the orders sought there in are not intended to dispose off the main suit.</p> <p>The Applicants filed a suit against the Respondents <em>vide</em> <strong><em>Miscellaneous Cause No. 54 of 2014</em></strong> which has a likelihood of success. Having considered the submissions of the Applicants <em>visa-vis </em>the Respondents submissions and the evidence on record, I find that there is <em>prima-facie</em> case/ triable issues shown by the Applicants. In the result, the first condition for grant of a Temporary Injunction is met.</p> <p><strong>Irreparable Harm</strong></p> <p>The other cardinal consideration is whether in fact the Applicant would suffer irreparable injury or damage by the refusal to grant the application. If the answer is in the affirmative, then Court ought to grant the order.  <strong><em>(See:</em></strong> <strong><em>Giella v. Cassman Brown &amp; Co. [1973] E.A 358)</em></strong>.  By irreparable injury it does not mean that there must not be physical possibility of repairing the injury, but it means that the injury or damage must be substantial or material one that is; one that cannot be adequately atoned for in damages.  See: <strong><em>Tonny Wasswa v. Joseph Kakooza [1987] HCB 79; NTCO Ltd.v. Hope Nyakairu [1992 – 1993] HCB 135.</em></strong></p> <p> </p> <p>Counsel SSsemakadde  referred this Court to <strong>paragraph 8 of Ms Enid Akampulira’s Affidavit in Rejoinder </strong>filed in Court on the 14th of October 2014 and <strong>paragraph 7 of Ms Maureen Ijang’s Affidavit in Reply</strong> and <strong>paragraphs 9, 10, 11 and 12 of Ms Enid Akampulira’s supporting Affidavit</strong>. Ms Enid Akampulira articulates the harm that will be suffered by the existing National Sports Associations if this Injunction is not granted. Ms Enid avers that the rights of the people of Uganda are likely to be damaged severally by the implementation of the Statutory Instrument. </p> <p> </p> <p>Counsel SSsemakadde relied on the case of <strong><em>Ananias Tumukunde versus Attorney General Constitutional Petition Application No. 3 of 2009, </em></strong>the principle in the instant case is that a Court of law which has been approached to protect human rights must not engage in the business of doubting the harm that will be done if the Injunction prayed for is not granted because it goes without saying that the damage to the Constitutional rights is irreparable. Mr. Ssemakadde submitted that the approach taken by the Constitutional Court in this case is similar to that taken by the Constitutional Court in the Gladys Nakibuule’s case. In his closing submissions, Counsel Ssemakadde submitted that Constitutional rights are to be taken seriously when a threat to them is identified and the best way to protect the people against a threat to their rights is by the issue of conservatory orders such as an Injunction.  In addition, he submitted that under <strong>Article 50</strong> of the Constitution of the Republic of Uganda 1995, this Court is required to provide adequate reliefs to those who claim a threat to their rights and by granting this Injunction, this Court will be fulfilling that role.</p> <p> </p> <p>In reply, Counsel Adrole submitted that the law is that Temporary Injunctions cannot be granted if the Applicant has not satisfied Court that the is a <em>prima facie</em> case with a likelihood of success. Counsel Adrole contended that the   Applicants have failed to prove that they have a <em>prima facie</em> with a likelihood of success. According to Mr. Adrole, since the Applicants have failed to prove that there is a <em>prima facie</em> case, he chose not to dwell into the issue. In order to support his argument, Mr. Adrole relied on the case of <strong><em>Timothy Alvin Kakkoko versus the Secretary General of the East African Community</em></strong><em> <strong>Application No.005 of 2012</strong></em>.</p> <p> </p> <p>However, it was Counsel Adrole’s submission that the Applicants will not suffer irreparable loss since the impugned Statutory Instrument No. 38 of 2014 has been passed into law as stipulated in paragraph 7 of the Affidavit in Reply of Ms. Ijang. It was also Mr. Adrole’s submission that irreparable damage can only be occasioned if the Statute currently issued was still in the stages of being passed. According to him, this Court is mandated to adhere and apply the law and the law can only be challenged if there is an issue of Constitutionality.  Counsel Adrole contended that the Applicants will not suffer irreparable damage as a result of an already existing law. Mr. Adrole also contended that the Interim Injunction was never brought to his attention.</p> <p> </p> <p>In his closing submissions, Mr. Adrole’s prayers are that since the Applicants have failed to satisfy this Court that they have a <em>prima facie</em> with a likelihood of success and secondly that the Applicants will suffer irreparable damage that cannot be atoned sufficiently by way of damages, this Application for a Temporary Injunction should be dismissed with costs.</p> <p>On irreparable damages, I find very instructive the words of <strong>Lord Diplock</strong> in the case of <strong><em>American Cyanamid Cov Ethicon [1975] </em>1<em>ALL E.R. 504</em></strong>. He states;</p> <p><strong><em>“The governing principle is that the court should first consider whether if the Plaintiff were to succeed at the trial in establishing his right to a Permanent Injunction he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the Defendant’s continuing to do what was sought to be enjoined between the time of the Application and the time of the trial. If damages in the measure recoverable at common law would be adequate remedy and the Defendant would be in a financial position to pay them, no Interlocutory Injunction should normally be granted…”</em></strong> </p> <p>In <strong><em>Francis Kanyanya V Diamond Trust Bank, HCCS No. 300 of 2008</em> </strong>Hon. Mr. Justice Lameck N. Mukasa relying on <strong><em>Kiyimba Kaggwa </em></strong>(supra)  held that:-</p> <p><em>“Irreparable damage does not mean that there must not be physical possibility of repairing injury, but means that the injury must be a substantial or material one, that is, one that cannot be adequately compensated for in damages” (emphasis added)</em></p> <p>It was strongly argued for the Applicants that they will suffer irreparable damage if the Temporary Injunction is not granted. On the other hand, the Applicants rights, if violated by the said impugned Regulations, those infringed rights cannot be compensated by way of damages.  Thus, in my view, the Applicants’ will suffer irreparable injury which cannot be adequately compensated for by way of damages. This ground succeeds.</p> <p><strong>Balance of convenience</strong></p> <p>It is trite law that if the Court is in doubt on any of the above two principles, it will decide the Application on the balance of convenience. The term balance of convenience literally means that if the risk of doing an injustice is going to make the Applicant suffer then probably the balance of convenience is favorable to him/her and the Court would most likely be inclined to grant to him/her the Application for a temporary injunction. The "balance of harms" refers to the threatened injury to the party seeking the Preliminary Injunction as compared to the harm that the other party may suffer from the Injunction. The Court will consider where the "balance of convenience" lies, that is, the respective inconvenience or loss to each Party if the Order is granted or not. The Court will consider all the circumstances of the case.</p> <p> </p> <p>Counsel for the Applicants, Counsel Ssemakadde invited this Court to hold that the balance of convenience tilts significantly in favour of the Applicants. He submitted the Applicants have elaborately advanced this Court with reasons why balance of convenience should be resolved in their favour. At the close of his submissions, Counsel Ssemakadde raised a Preliminary Objection that Mr. Kavuma Kabenge and Mr. Goloba Muhammed representing the 2nd Respondent have no <em>locus standi</em> before this Court. It was Mr. Ssemakadde’s prayer that Mr. Kabenge and Mr. Goloba be disqualified from these proceedings until the procedure of procuring their services is properly followed. Counsel Ssemakadde relied on the authority of <strong><em>Attorney General &amp; Hon. Nyombi Peter vs. Uganda Law Society, Misc. Cause No. 321 of 2013</em></strong>.</p> <p>In reply, Counsel Adrole submitted relied on Article 28 of the Constitution of the Republic of Uganda 1995.It was Mr. Adrole’s contention that one cannot be condemned unheard. I agree with Counsel Adrole that Court should observe the principle of fair hearing as enshrined under Article 28 of the Constitution of the Republic of Uganda 1995. The 2nd Respondent should be given an opportunity to present his case concerning the objection raised by the Applicant’s Counsel. I will give Mr. Kavuma a chance to respond to the objection in the main suit before making a decision on the objection.</p> <p> </p> <p>The purpose of the Order for Temporary Injunction is primarily to preserve the <em>Status Quo </em>of the subject matter of the dispute pending the final determination of the case. An Order for a Temporary Injunction is granted so as to prevent the ends of justice from being defeated. See: <strong><em>Daniel Mukwaya v. Administrator General, H.C.C.S No. 630 of 1993; Erisa Rainbow Musoke v. Ahamada Kezala [1987] HCB 81.</em></strong></p> <p>The Court of Appeal in <strong><em>Godfrey Sekitoleko &amp; Ors V Seezi Mutabaazi &amp; Ors [2001 – 2005] HCB 80 </em></strong>made the position clear by stating as follows;-</p> <p><strong><em>“The Court has a duty to protect the interests of parties pending the disposal of the substantive suit.    The subject matter of a Temporary Injunction is the protection of legal rights pending litigation ............”</em></strong></p> <p>Besides, an Injunction is an extraordinary remedy that Courts utilize in special cases where preservation <strong><em>of the Status Quo or taking some specific action is required in order to prevent possible injustice</em></strong>. The purpose of the Order for Temporary Injunction is primarily to preserve the <em>Status Quo </em>of the subject matter of the dispute pending the final determination of the case, and the order is granted in order to prevent the ends of justice from being defeated. See<strong><em> Daniel Mukwaya v. Administrator General, supra; Rainbow Musoke v. Ahamada Kezala, supra.</em></strong><em> ‘‘Status Quo’’</em> is purely a question of fact and simply denotes the existing state of affairs existing before a given particular point in time and the relevant consideration is the point in time at which the acts complained of as affecting or likely to affect or threatening to affect the existing state of things occurred. Depending on the facts of the case, a party may apply for an Injunction in order to preserve the <em>Status Quo</em>.</p> <p>I am concerned with the violation of a right<strong>. </strong>It is such an act that must be stopped if the Applicants are to enjoy their rights. It is indeed a cardinal principle of law that a Temporary Injunction is intended to preserve the <em>Status Quo </em>until the dispute to be investigated in the suit can be finally disposed of. See <strong><em>Mastermind Tobacco Uganda (PTY) Ltd v Bujugiro Ayabatwa &amp; Another Misc. Application No. 713 of 2002 (</em></strong><em>arising from <strong>Misc. Application No. 712 of 2002)</strong>; (arising from <strong>Civil Suit No. 497 of 2002)</strong>.</em></p> <p>In my view, the Applicants have made their case and I accordingly allow their Application on this ground. In the case of <strong><em>Victoria Construction works Ltd Versus Uganda National Roads Authority HMA No. 601 of 2010</em> </strong>the High Court while citing the decision in <strong><em>J. K. Sentongo vs. Shell (U) Ltd [1995] 111 KLR 1</em>, </strong>Justice Lugayizi observed that if the Applicant fails to establish a Prima Facie case with likelihood of success, irreparable injury and need to preserve the <em>Status-Quo</em>, then he/she must show that the balance of convenience was in his favor. I wish to say that the Applicants’ have satisfied Court that all the four ingredients exist. This Application, therefore, ought to succeed.</p> <p>In the result and for the reasons given hereinabove in this Ruling the Applicant demonstrated that this Application has merit. It ought to succeed. I am aware of the decision in the case of <strong><em>Francis Babumba &amp; Others vs. Erusa Bunju (1992) 111 KALR 120, </em></strong>where it was held that a Temporary Injunction would not be granted if its effect is to dispose of the whole case. The Application before me seeks for an order of a Temporary Injunction. This does not dispose off the main suit as it is still pending before me with different remedies sought therein. Accordingly, this Application is allowed. I therefore grant the Orders sought in this Application. Costs shall be in the main cause.</p> <p><strong>I SO ORDER. </strong></p> <p> </p> <p>SIGNED:...........................................................................</p> <p><strong>HON. LADY JUSTICE ELIZABETH IBANDA NAHAMYA</strong></p> <p><strong>JUDGE</strong></p> <p>5TH DECEMBER, 2014</p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-f3da0c318e9b9226a3783ada31e591f4"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/hc-civil-division/2014/171/hc-civil-division-2014-171.doc" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Sat, 12 Sep 2015 12:55:56 +0000 Anonymous 25082 at https://old.ulii.org Basudde v Mwewulize & Anor (Misc. Application No. 0402 of 2003. ) ((Misc. Application No. 0402 of 2003. )) [2003] UGHC 48 (28 August 2003); https://old.ulii.org/ug/judgment/high-court/2003/48 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-remedies" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Remedies</a></li><li class="field-item odd"><a href="/tags/temporary-injunction" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Temporary Injunction</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p>&nbsp;</p> <p><strong>THE</strong> <strong>REPUBLIC</strong><strong> OF UGA</strong><strong>NDA<br /> IN </strong><strong>TH</strong><strong>E</strong> <strong>HI</strong><strong>GH COURT OF UGANDA, AT KAMPALA</strong><br /> &nbsp;<strong>Misc. Application No. 0402 of 2003.<br /> &nbsp;</strong>IMELDA GERTRUDE BASUDDE NALONGO::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT.<br /> vs.<br /> &nbsp;</p> <p>1. TEREZA MWEWULIZE]<br /> 2. JOHN TIBYASA MATOVU::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT.<br /> <strong>BEFORE: </strong><strong><u>V.F.MUSOKE-KIBUUKA </u></strong><strong>(JUDGE)</strong><br /> <br /> <strong>RULING.</strong><br /> The applicant and the second respondent are legally husband and wife. They were married at Lubaga Cathedral on 30<sup>th</sup><strong> </strong>November, 1963. It appears that bad luck caught up with them quite early during their marriage. For in 1968, the applicant left the second respondent and the couple has never co-habited ever since.<br /> <br /> The first respondent is a sister to the second respondent and, therefore, a sister-in-law of the applicant.<br /> In this application, the applicant seeks an order of this honourable court issuing a temporary injunction restraining both respondents, their workmen, servants, employees or agents, from evicting the applicant from the property situate at Lungujja, in Kampala, and known as Kibuga Block 1, plot 558<em>.</em><br /> <br /> The applicant has presented five grounds upon which she bases this application. They are:<br /> <br /> a) &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; that the applicant is in eminent danger of eviction from the property in question;<br /> <br /> b) &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; that the applicant has filed HC Civil Suit No 410 seeking a permanent injunction and that the suit is pending hearing in this court;<br /> <br /> c) &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; that the applicant is likely to suffer irreparable injury once she is evicted, as she has no alternative accommodation;<br /> <br /> d) &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; that it is fair and just that the status quo be preserved pending the determination of the head suit; and<br /> <br /> e) &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; that the head suit has high chances of success.<br /> The application is supported by an affidavit deponed by the applicant. In reply, each of the two respondents has deponed an affidavit.<br /> <br /> As a matter of law, the granting of an order for an injunction is within the discretion of the court. The discretion, of course, must be exercised judicially. <strong><u>Edward Sargent </u></strong><strong><u>vs</u></strong><strong><u>. Chotabhai Jhaverbhai Patel (1949-1950) EACA 63. </u></strong><br /> <br /> Again, as a matter of law, the main objective for the issuance of a temporary injunction is to preserve the status quo pending the hearing and final determination of the controversy involved in the head suit. See:<br /> <strong><u>NoorMohamed Vs. Jammohusein Vs. Kassamli Madhan </u></strong><strong><em><u>(</u></em></strong><strong><u>1953</u></strong><strong><em><u>) </u></em></strong><strong><u>29</u></strong><u> </u><strong><u>EACA, 8. </u></strong>The judicial analysis to be carried out by the court when considering whether or not a temporary injunction should issue in any given case must cover the following three important conditions or elements. That is to say, that the court must consider:<br /> <br /> a) &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Whether the applicant has a <u>prima facie </u>case with a probability of success.<br /> <br /> b) &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Whether, if the injunction is not granted, the applicant is likely to suffer, irreparable injury which the award of damages may not be adequate to atone; and<br /> <br /> c) &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; If, the court is remains in doubt, after analysing the above two conditions, it will consider the question, in whose favour, of the two parties to the head suit, the balance of convenience tilts. In other words, which of the two parties is more likely to be placed at mere disadvantage or inconvenience if the injunction is denied by the court.<br /> <br /> This court has discussed those conditions again and again in several decisions. Some of those decisions are: <strong><u>E.I.L. Kiyimba-Kagwa Vs. Hajji Abdul Katende </u></strong><strong><u>(</u></strong><strong><u>1985</u></strong><strong><em><u>) </u></em></strong><strong><u>HCB 43. </u></strong><br /> <br /> -&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong><u>J.K. Ssentongo And Another Vs. Shell (U) Ltd. </u></strong><strong><u>[</u></strong><strong><u>19951 </u></strong><strong><u>11995]</u></strong><strong><u> II KALR, 43 and </u></strong><br /> -&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong><u>Daniel Mukwaya </u></strong><strong><u>vs</u></strong><strong><u>. Administrator General. HCCS </u></strong><u>No. </u><strong><u>630 of 1990.</u></strong><br /> <br /> <strong><u>Prima Faci</u></strong><strong><u>e Case. </u></strong><br /> What is normally meant by <strong>a </strong>prima facie case is that the evidence placed before the court, by way of affidavit or otherwise, in the application for the injunction must show that there exists a genuine triable issue, in the main suit pending between the parties. The court must be satisfied that the dispute presented in the main or head suit is not a sham but a genuine dispute and that the applicant has probabilities of succeeding in the main suit.<br /> Now, in the application before me, the main remedy which the applicant seeks in the head suit is a declaration that the property at Lungujja known as Kibuga Block 1, Plot 558<em>, </em>is a matrimonial home for her and the second respondent and that she should not be evicted from that property upon that ground.<br /> <br /> The evidence before me, however, shows that the property in dispute was first brought under the Registration of Titles Act, way back in 1975<em> </em>when it was registered under the proprietorship of Sarah Ndagire, the mother of the respondents. The property is currently registered in the names of Tereza Mwewulize, the first respondent. There is no evidence to show that the second respondent either owns the property or is in possession of it. In the terms of the provisions of section 56<em> </em>of the Registration of Titles Act, this court must conclude that the person whose name appears on the certificate of title is the owner of the property in question.<br /> <br /> It has been argued, on behalf of the applicant, that the property was bequeathed to the second respondent by his mother Sarah Ndagire and that the first respondent who is the administrator of the estate of the late Sarah Ndagire is registered merely as the administrator of the estate of Sarah Ndagire. To support this argument, a copy of the last will of Sarah Ndagire has been presented produced before this court<br /> <br /> I have perused the will of Sarah Ndagire. I find that it was clearly an invalid will. It was invalid because it did not comply with the provisions of section 51 of the Succession Act, Cap 139. The will was never attested to, by at least two witnesses, as required under that provision of the Succession Act. That fact clearly appears to have constituted the reason why, in Administration Cause No. 117 of 1987, the will of Sarah Ndagire was never probated. Instead, letters of administration for the estate of Sarah Ndagire were granted to the late Rev. Fr. Boniface Mubiru and Tereza Mwewulize, the first respondent. That meant that the late Sarah Ndagire died intestate. She did not leave a valid will. The terms of the document presented before this court as the will of Sarah Ndagire and to show that the property in dispute was bequeathed by her the second respondent, has, thus no probative value. Its contents are of no effect in law and cannot be acted upon.<br /> For that reason, this court must believe the averment of second respondent in paragraph 9 of his affidavit in reply and that of the first respondent in paragraph 5<em> </em>of her affidavit in reply-to the effect that the first respondent is registered as proprietor in her own personal right and not as administrator of the estate of Sarah Ndagire or on behalf of the second respondent. That means, of course, that the claim by the applicant that the property in dispute is her matrimonial home has no basis whatever. The second respondent has never either owned that property or has he ever been in possession of it.<br /> <br /> I also agree with the submission made by Mr. Ssendege, learned counsel for the respondents that the position of the law seems to be that even if it were true that the property in Kibuga Block 1, plot 558<em>, </em>was the matrimonial home of the applicant and the second respondent, the applicant would have no right to possession superceding that of the registered owner. The applicant having no apparent right to ownership of the property would at best have claimed to reside in the property merely as a licence of her husband. Her rights as a wife to the second responded for entitlement to a matrimonial home are personal rights. They are rights <u>in personam. </u>They do not extend against third parties. They would not constitute a genuine triable issue as against the registered proprietor. The decision in <strong><u>National Provincial Bank Ltd. Vs. Ainsworth (1965) 2 All E.R, 472</u></strong><u>, </u>which Mr. Ssendege has relied upon in advancing this submission appear to me to constitute a good persuasive authority on this point.<br /> <br /> For those reasons, therefore, I find that the pleadings of the applicant as well as the submissions which have been made on her behalf, in this matter, have not disclosed a <em><u>prima f</u></em><em><u>acie </u></em>case with any probability of success as far as Civil Suit 410 of 2003 is concerned.<br /> <br /> Having found that to be the case, I do not need to extend this analysis beyond that point to cover whether or not the applicant will suffer any irreparable injury or whether the balance of convenience hits in her favour.<br /> <br /> In the result, the application must b e and is hereby dismissed. It has no merit in it. Costs to abide by the outcome of the main cause.<br /> <br /> V.F.MUSOKE-KIBUUKA (JUDGE)<br /> 28.8.2003.<br /> <strong><u>Court: </u></strong>Delivered in the presence of:<br /> Mr. Farrah Patrick- for the applicant.<br /> Mr. Ssendege- for respondents.<br /> Mr. Wakulira- court clerk.<br /> <br /> V.F.MUSOKE-KIBUUKA (JUDGE)<br /> 28.8.2003.<br /> <br /> &nbsp;</p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-5ffefb0cff615dbb2111da4be30995e7"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/high-court/2003/48/high-court-2003-48.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:55:29 +0000 Anonymous 16977 at https://old.ulii.org Buruhani Namudala V Stefano Kazibwe (Civil Suit No. 818 of 1991 ) ((Civil Suit No. 818 of 1991 )) [1992] UGHC 10 (22 January 1992); https://old.ulii.org/ug/judgment/high-court/1992/10 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-remedies" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Remedies</a></li><li class="field-item odd"><a href="/tags/injunctions-and-interdicts" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Injunctions and interdicts</a></li><li class="field-item even"><a href="/tags/temporary-injunction" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Temporary Injunction</a></li><li class="field-item odd"><a href="/tags/property-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Property Law</a></li><li class="field-item even"><a href="/tags/land" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Land</a></li><li class="field-item odd"><a href="/tags/land-dispute" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Land Dispute</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p>&nbsp;</p> <p><u>THE REPUBLIC OF UGANDA</u><br /> IN <u>THE HIGH COURT OF UGANDA AT KAMPALA<br /> CIVIL SUIT NO. 818 OF </u><u>1991</u><em><u>&nbsp;</u></em><br /> BURUHANI NAMUDALA ::: : ;:: : ::::: : : ::: :::::::::: PIAINTIFF<br /> VERSUS<br /> STEFANO KAZIBWE ::::::::::::;:::::::::::::::: DEFENDANT<br /> BEFORE: <u>The Honourable Mrs. Ag. Justice M.</u><u>Kire</u><u>ju</u><br /> <u>RULING. </u><br /> &nbsp;</p> <div><br /> This application by Chamber summons was<strong><em> </em></strong>filed under order 37 rules I and 9 of the Civil Procedure Rules. It seeks an order to restrain and delay the Registrar of Titles from registering any dealing in the property in dispute until the disposal of the suit or until further orders.<br /> The general grounds of the application are that:-<br /> (1) The caveat placed on the property in dispute is lapsing on 13/1/92 and shall thereafter be removed from the Register Book.<br /> (2) The property in dispute is in danger of being sold, alienated, sold and disposed off.<br /> The application is supported by the affidavit of Buruhani Namundala, applicant/plaintiff sworn on 13/1/92. He deponed that he had filed a suit against the respondent/defendant on 23/12/91. On the 16/7/91 he placed a caveat on the land comprised on Block 230<em> </em>Plot 273 situate at Mengo which is the land in dispute in the said suit. On 13/11/91 he received a Statutory Notice Dated 13/11/91 from the Registrar of titles giving him notice to obtain within 60<em> </em>days an order from the High Court preventing the said Registrar of Titles from effecting transfer of the land in dispute to a third party. The copy of the said notice<strong> </strong>was annexed to the affidavit and marked “A”. He further deponed that if the caveat lapses as it was due to lapse on 13/l/92, and there is no court<em> </em>order restraining the Registrar of Titles from transferring the land in ,dispute, the defendant/respondent will execute his plan of selling the land in dispute. He was advised by his lawyers that court can only dispense with service of notice to the opposite party if the object of granting the injunction would be defeated by delay. That since the said court order must be obtained<em> </em>before or on 13/1/92 that this was the kind of case in which,<em> </em>the object of granting<em> </em>the injunction<em> </em>would be defeated by delay arising from issue and service of the said notice on the defendant/respondent.<br /> In addition to what was deponed in the applicant’s affidavit, counsel for the applicant submitted that since the time given by the Registrar of Titles in which to apply to Court extending the caveat had already lapsed, that the situation was more urgent. That this is a case which justifies the dispensing with the giving of notice to the other party as the respondent would now have the chance of affecting his sale. He submitted that the application was being brought under section 149 of the registration of Titles Act which provides that a caveat will only remain for a limited period unless he applies to court.<br /> He contended that if the injunction is not granted the land would be disposed of and would be alienated to the applicant/ plaintiff and that no injustice would be done to the defendant /respondent as he had already sold the land to the plaintiff. He prayed that the court doth grant the application as prayed.<br /> The brief facts of the main, suit as stated in the plaint are that the plaintiff/applicant, bought land from the defendant/ respondent in 1987 and paid the full price, but the land was not transferred and there was, no agreement of sale executed, until in 1990 when the defendant agreed to transfer-the land to the plaintiff. The transfer was registered in land office on 11/10/90. The original land certificate of title of the disputed land was handed to the plaintiff. When the plaintiff went to the land with the intention of developing it he found that the defendant had obtained a duplicate certificate of title and was planning to sell the land to some other third party unknown to the plaintiff. The plaintiff filed a suit claiming among other reliefs, a declaration that he is the legal proprietor of that disputed land. The certificate of title was never transferred in his names.<br /> This application is made under Order. 37 rule I and 9, rule (1) is as follows;-<br /> “1. Where in any suit it is proved by affidavit or otherwise;<br /> (a) That any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit or wrongfully sold in execution of a decree, or .........”<br /> The court may by order grant a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing the wasting,<em> </em>damaging, alienation, sale removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.<br /> Although the application does not specifically state that it is also brought under rule 3 of the same order, the affidavit in support of the application takes it into consideration. This<br /> rule is as follows;-<br /> “3.<em> </em>The court shall in all cases, except where it appears that the object of granting an injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same<em> </em>to be given to the opposite party.”<br /> The principles to be followed when granting an exparte injunction were set out in the case of. <u>Noor</u><u> </u><u>Moha</u><u>med Janmohamed Vs. Kassamali </u><u>Vi</u><u>r</u><u>j</u><u>i</u><u> </u><u>Madhani (1953) 20 </u><u>E</u><u>A</u><u>CA</u><u> 8 </u>and was cited with approval in the case of <u>Nsubuga and Anor</u><u> vs</u><u> m</u><u>utawe 1974 EA 487., </u><br /> The requirement to give notice is mandatory, the onus satisfying the court that there is a good cause for dispensing with it lies on the applicant.<br /> In the present case the applicant’s argument is that the 60 days given to him by Registrar of Titles to seek extension from court expired on 13/1/92<strong> </strong>and that the suit property is in danger of being sold by the defendant.<br /> It is important to note that the. Applicant did not apply to court as he was advised by Registrar of Titles but waited until the last day to file, this application. Now he is asking court to dispense with service of notice to the opposite party on the ground that if he is given notice he will be alerted and he may complete the sale. The applicant did not advance any reasons why he took so long to make this application. It is well established that the purpose of an interim injunction is to maintain the status quo until the question to be investigated in the suit can be finally disposed of. The letter to the applicant from the Registrar of Titles stated,-<br /> “You are hereby given notice that the proprietor of the land registered and the above title has applied for the registration of a (1) application which appears to affect the estate or interest claimed by you in this land. If you object to the registration of this application then you should go to the High Court for an order delaying me from registering it. You must get such order from the court before the expiration of 60 days after this notice otherwise you will have no reason to complain and your caveat will lapse and be removed from the Register Book....”<br /> The applicant did not adduce any evidence to show that the Registrar of Titles has not yet registered the defendant’s application. The need and the hurry to hear this application exparte may no longer be there. I do not think that the court should unduly interfere with the registrar of Titles powers under section 149 of the registration of Titles Act.<br /> The application is against the registrar of Titles who is not a party to the suit. I do not know why the applicant did not apply for an injunction against the defendant who is a party to the suit, especially in view of the fact that the he was already out of<strong> </strong>time to apply under s.149 of RTA.<br /> In view of the above circumstances the application is barred as against the Registrar of Titles. The temporary injunction should have been directed against the respondent /defendant who is a party to the suit.<br /> This application cannot be allowed to proceed exparte as it is time tarred and incompetent. It is therefore struck out. The applicant is free to file a proper application if he so wishes.<br /> <br /> M. KIREJU</div> <p>Ag. <u>JUDGE. </u><br /> 22/1/1992.<br /> <br /> &nbsp;Emoru for applicant Present.<br /> Ruling Delivered in Chambers<br /> RICHARD BUTEERA<br /> <br /> &nbsp;</p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-dc7fc3933298d2a38cb5babbb00b4d9e"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/high-court/1992/10/high-court-1992-10.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:53:59 +0000 Anonymous 16629 at https://old.ulii.org Ssekikubo & 4 Ors v Kamba & 3 Ors (Constitutional Application No. 03 of 2014) [2014] UGSC 11 (10 July 2014); https://old.ulii.org/ug/judgment/supreme-court/2014/11 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-remedies" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Remedies</a></li><li class="field-item odd"><a href="/tags/injunctions-and-interdicts" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Injunctions and interdicts</a></li><li class="field-item even"><a href="/tags/temporary-injunction" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Temporary Injunction</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p>&nbsp;</p> <p>THE REPUBLIC OF UGANDA</p> <p>IN THE SUPREME COURT OF UGANDA</p> <p>AT KAMPALA</p> <p>&nbsp;</p> <p><em>[Coram:&nbsp; &nbsp;&nbsp;</em><em>Katureebe, Tumwesigye, Kisaakye, JJSC.&amp;&nbsp; Odoki, Tsekooko, Okello &amp;</em></p> <p><em>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;Kitumba, &nbsp;Ag. JJSC]</em>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <p>&nbsp;</p> <p><em>Constitutional Application No. 03 of 2014.</em></p> <p>&nbsp;</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <ol> <li><img src="file:///C:%5CUsers%5Cjmugala%5CAppData%5CLocal%5CTemp%5Cmsohtmlclip1%5C01%5Cclip_image001.gif" style="height:61px; width:6px" />HON. THEODORE&nbsp; SSEKIKUBO</li> <li>HON.&nbsp; WILFRED&nbsp; NIWAGABA &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;<em>Between</em></li> <li>HON.&nbsp; MOHAMMED&nbsp; NSEREKO &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::&nbsp;&nbsp;&nbsp;&nbsp; APPLICANTS.</li> <li>HON.&nbsp; BARNABAS&nbsp; TINKASIMIRE&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</li> <li>HON.&nbsp; ABDU&nbsp; KATUNTU &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;<em>And</em></li> </ol> <p>&nbsp;</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <ol> <li>THE ATTORNEY&nbsp; GENERAL</li> <li><img src="file:///C:%5CUsers%5Cjmugala%5CAppData%5CLocal%5CTemp%5Cmsohtmlclip1%5C01%5Cclip_image002.gif" style="height:61px; width:7px" />HON. LT. (RTD.) SALEH M. W. KAMBA</li> <li>MS.&nbsp; AGASHA&nbsp; MARY.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::&nbsp; RESPONDENTS.</li> <li>JOSEPH&nbsp;&nbsp; KWESIGA</li> <li>NATTIONAL RESISTANCE&nbsp; MOVEMENT &nbsp;</li> </ol> <p>&nbsp; &nbsp;&nbsp;</p> <p><em>{Notice of Motion seeking for, inter alia, order of stay of Execution of decision and decree of the Constitutional Court at Kampala (Kavuma, Ag. DCJ./ PCC., Nshimye, Kasule, Mwondha and Butera, JJA../ JCC.) dated 21<sup>st</sup> February, 2014, in Constitutional Petitions No. 16, 19, 21 and 25 of 2013 and Constitutional Applications Nos. 14 and 23 of 2013}</em></p> <p>&nbsp;</p> <p>&nbsp;</p> <p><strong><u>Ruling of the Court.</u></strong></p> <p>The Hon. Theodore Ssekikubo, Hon. Wilfred Niwamanya, Hon. Mohammed Nsereko, Hon. Barnabas Tinkasimire and Hon. Abdu Katuntu, (herein after &nbsp;referred to as the 1<sup>st</sup>, 2<sup>nd</sup>, 3<sup>rd</sup>, 4<sup>th</sup> and 5<sup>th</sup> applicants) instituted a Notice of Motion under Rules 2(2), 6(2)(b), 42, 43(1), 50 and 51 of the Supreme Court Rules seeking for three orders.&nbsp;</p> <p>The first order sought for stay of execution of the decision and orders of the Constitutional Court in Constitutional Petitions Nos. 16, 19, 21, 25 of 2013 delivered on 21<sup>st</sup> February, 2014 until final determination of an appeal which has now been instituted in this Court. &nbsp;&nbsp;</p> <p>The second and third orders sought are a temporary injunction—</p> <ol style="list-style-type:lower-roman"> <li><em>to restrain the Hon. the Speaker and the Hon. the Deputy Speaker of Parliament from implementing the decision of the Constitutional Court, stopping the first four applicants from continuing to sit in Parliament, and; </em></li> </ol> <p>&nbsp;</p> <ol style="list-style-type:lower-roman"> <li><em>to restrain the Electoral Commission from conducting elections in each of the Constituencies of the 1<sup>st</sup>, 2<sup>nd</sup>, 3<sup>rd</sup> and 4<sup>th</sup> applicants.</em></li> </ol> <p>&nbsp;</p> <p>The Notice of Motion sets out the grounds in support of the application.&nbsp; They are that:—</p> <ol> <li><strong><em>The</em></strong><em> Applicants who are dissatisfied with the judgment and the orders of the Constitutional Court filed a Notice of Appeal and have requested for a record of proceedings.</em></li> </ol> <p>&nbsp;</p> <ol> <li><strong><em>The</em></strong><em> Applicants’ intended appeal to the Supreme Court challenging the decisions and orders of the Constitutional Court raises several constitutional and legal issues that warrant serious judicial consideration by the Supreme Court and this prima facie has a high chance of success.</em></li> </ol> <p>&nbsp;</p> <ol> <li><strong><em>Unless </em></strong><em>restrained by the Supreme Court, the Rt. Hon. Speaker, the&nbsp; Rt. Hon. Deputy Speaker of Parliament and the Electoral Commission shall soon implement the orders of the Constitutional Court and this will irreparably occasion loss to the 1<sup>st</sup>, 2<sup>nd</sup>, 3<sup>rd</sup> and 4<sup>th</sup>&nbsp; Applicants of their political, economic and other fundamental rights and freedoms&nbsp; and render&nbsp; the intended appeal nugatory.</em></li> </ol> <p>&nbsp;</p> <ol> <li><strong><em>The </em></strong><em>balance of convenience in maintaining the status quo is in favour of the 1<sup>st</sup>, 2<sup>nd</sup>, 3<sup>rd</sup> and 4<sup>th</sup> Applicants retaining their seats in Parliament till prima facie appeal is heard and disposed of.&nbsp; </em></li> </ol> <p>&nbsp;</p> <ol> <li><strong><em>The</em></strong><em> application has been brought without undue delay.</em></li> </ol> <p>&nbsp;</p> <p>The first applicant swore an affidavit on 24<sup>th</sup> February, 2014, outlining grounds in support of the application.&nbsp; The Attorney General, Hon. Saleh Kamba, Ms. Agasha Mary, Joseph Kwesiga and the National Resistance Movement (NRM) [hereinafter referred to as the 1<sup>st</sup>, 2<sup>nd</sup>, 3<sup>rd</sup>, 4<sup>th</sup> and 5<sup>th</sup> Respondents] oppose the application.&nbsp; Mr. Elisha Bafirawala, a Senior State Attorney in the Attorney - &nbsp;General’s Chambers, and Mr. Joseph Kwesiga of Karuhanga, Kasajja and Co., Advocates, and Mr. Sam Mayanja C/o J. Mugisha &amp; Co., Advocates have each sworn separate affidavits in reply to that of Hon. Ssekikubo and in opposition to the application.&nbsp; It is not clear why Mr. Mayanja, an advocate, annexed to his own affidavit sworn on 20<sup>th</sup> March, 2014, Jane Kibirige’s affidavit which she had sworn on 03<sup>rd</sup> March, 2014 in opposition to a different Notice of Motion (Application No. 04 of 2014) which was disposed of by Court on 06<sup>th</sup> March, 2010.&nbsp; If Jane Kibirige’s affidavit was necessary then the proper course was for the advocate to prepare a fresh affidavit for her to swear in opposition to this application.&nbsp;</p> <p>&nbsp;</p> <p><strong>BACKGROUND:</strong></p> <p>The background to the motion is as follows:—&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;</p> <p>Hon. Lt. (Rtd.) Saleh M. W. Kamba and Ms. Agasha Mary (2<sup>nd</sup> and 3<sup>rd</sup> respondents) instituted Constitutional Petition No. 16 of 2013 against the Attorney - General, (the first respondent), Hon. T. Ssekikubo, (1<sup>st</sup> applicant) Hon. W. Niwagaba, (2<sup>nd</sup> applicant) Hon. M. Nsereko (3<sup>rd</sup> applicant) and Hon. B. Tinkasimire (4<sup>th</sup> applicant).&nbsp; The same two respondents also instituted Constitutional Applications No. 14 of 2013 and No. 16 of 2013 against the same said parties.&nbsp; The National Resistance Movement (NRM) [the present 5<sup>th</sup> respondent] separately instituted constitutional petition No. 21 of 2013 and this was followed by Constitutional Application No. 21 of 2013 and No. 25 of 2013 against the first four applicants.</p> <p>&nbsp;</p> <p>Joseph Kwesiga (the 4<sup>th</sup> respondent) also separately instituted Constitutional Petition No. 19 of 2013 against the Attorney - General of Uganda while Hon. Abdu Katuntu (the 5<sup>th</sup> applicant) also separately instituted Constitutional Petition No. 25 of 2013 against the same Attorney - General of Uganda.</p> <p>&nbsp;</p> <p>Except for the petition of Hon. Katuntu, in the other petitions and applications, the petitioners and the applicants (present respondents) challenged the constitutionality of the decision by the Speaker of Parliament by which she declined to declare as vacant the seats in Parliament of each of the present four (1<sup>st</sup> to 4<sup>th</sup>) applicants following their expulsion from the NRM party.</p> <p>&nbsp;</p> <p>The Constitutional Court consolidated the petitions and the applications, heard parties and delivered judgments on 21<sup>st</sup> February, 2014.&nbsp; By a majority of four to one, the Court allowed the petitions and the applications and ordered, <em>inter alia, </em>that:—</p> <ol> <li><em>The 2<sup>nd</sup>, 3<sup>rd</sup>, 4<sup>th</sup> and 5<sup>th</sup> respondents (i.e., the present four applicants) are hereby ordered to vacate their seats in Parliament forthwith.</em></li> </ol> <p>&nbsp;</p> <ol> <li><em>The Electoral Commission is directed following the service to it of a copy of this judgment by the 1<sup>st</sup> respondent to conduct by-elections in the constituencies hitherto represented by Hon. Theodore Ssekikubo, Hon. Wilfred Niwagaba, Hon. Mohammed Nsereko and Hon. Barnabas Tinkasimire in accordance with the electoral laws of this country. </em></li> </ol> <p>&nbsp;</p> <ol> <li><em>A Permanent Injunction is hereby issued restraining the Rt. Hon. Speaker of Parliament and the Rt. Hon. Deputy Speaker of Parliament from allowing the 2<sup>nd</sup>, 3<sup>rd</sup>, 4<sup>th</sup> and 5<sup>th</sup> respondents to continue sitting in Parliament or to take part in any Parliamentary activity or any committees and stop payment to the 2<sup>nd</sup>, 3<sup>rd</sup>, 4<sup>th</sup> and 5<sup>th</sup> respondents of any salaries, allowances, other emoluments and entitlements, save those that may have accrued to them immediately before the issuance of these orders. </em></li> </ol> <p>&nbsp;</p> <ol> <li><em>The mandatory injunction issued by this Court on 10<sup>th</sup> September 2013 is hereby vacated.</em></li> </ol> <p>&nbsp;</p> <p>The orders were reduced into a Court Decree which was served on the Speaker of Parliament by the 1<sup>st</sup> respondent on 24<sup>th</sup> February, 2014.&nbsp; Consequently the Speaker declared the seats vacant and by letter dated 25<sup>th</sup> February, 2014, the Speaker advised the four applicants in the language directed by Constitutional Court.&nbsp; Meantime on 24<sup>th</sup> February, 2014, the four applicants instituted a Notice of Appeal intending to appeal to this Court against the majority Constitutional Court decision.&nbsp; The following day (on 25<sup>th</sup> February, 2014), the same applicants instituted Constitutional Applications No. 03 of 2014, and No. 04 of 2014.&nbsp; This Court disposed of the latter application on 06<sup>th</sup> March, 2014.&nbsp; The former is now the subject of this ruling. &nbsp;&nbsp;&nbsp;</p> <p>&nbsp;</p> <p><strong>SUBMISSIONS:</strong></p> <p>During the hearing, Mr. Peter Walubiri assisted by Mr. Alaka, represented the applicants.&nbsp; The 1<sup>st</sup> respondent was represented by Ms. P. Mutesi (PSA) assisted by Ms. M. Ijang (PSA).&nbsp; The 2<sup>nd</sup><sup>, </sup>3<sup>rd</sup> and 5<sup>th</sup><sup> </sup>respondents were represented by Mr. J.M. Mugisha who was assisted by Mr. J. Matsiko, Mr. C.J. Bakiza and Mr. S. Twinobusingye.&nbsp; Lastly Mr. Elison Karuhanga represented the 4<sup>th</sup> respondent.&nbsp;</p> <p>&nbsp;</p> <p>Mr. Peter Walubiri opened the submissions on behalf of the applicants. &nbsp;&nbsp;He based the submissions on the grounds set out in the Notice of Motion and on the contents of the supporting affidavit of Hon. Ssekikubo, the first applicant.&nbsp; Learned counsel contended that the Applicants were dissatisfied with the majority decision of the Constitutional Court and so they filed a Notice of Appeal and had also requested for the record of proceedings.&nbsp; Learned counsel stated that the applicants had filed Constitutional Appeal No. 01 of 2014 by the time Court was hearing this application.&nbsp; Learned counsel contended that the appeal raises serious constitutional issues and is likely to succeed.&nbsp; Counsel submitted that in terms of <strong><em>Rule 6 (2) (b)</em></strong> of the Rules of this Court, where an applicant has instituted a Notice of Appeal, this Court has discretion to decide whether to grant stay of execution or an injunction or not.&nbsp; He argued that the applicants have appealed in exercise of their unrestricted right enshrined in <strong>Article 132 (3) of the</strong> <strong>Constitution.</strong>&nbsp; He therefore prayed that the Court grants stay of execution and an injunction so as to maintain the status quo pending the determination of the appeal.</p> <p>&nbsp;</p> <p>&nbsp;Learned counsel submitted that the second ground in the Notice of Motion raises several constitutional and legal issues to be determined by this Court and that the appeal has chances of success.&nbsp; &nbsp;He contended, quite correctly in our opinion, that it was not necessary to argue the merits of the appeal at this stage.&nbsp; He however pointed out that the controversy is, <em>inter alia, </em>about the interpretation of Article 83 (1) ((g) of the Constitution which the Constitutional Court interpreted erroneously. &nbsp;He again contended that Article 83 (1) (g) is about voluntary crossing of a Member of Parliament from one party to a different party but not where a member is expelled from his own party as in this case.&nbsp; He further contended that during the hearing of the appeal, the applicants shall argue that it is only the High Court which has jurisdiction to declare that a seat of an MP in Parliament is vacant and that on the facts in the present case that Article was not applicable because the Constitutional Court had no jurisdiction.&nbsp;&nbsp; Learned counsel also stated that during the hearing of the appeal, the applicants will challenge the erroneous interpretation of Article 119 of the Constitution by the Constitutional Court regarding the binding nature of the advice of the Attorney General on the Speaker of Parliament.&nbsp; Learned counsel submitted that the intended appeal raises serious issues to be determined by this Court.</p> <p>&nbsp;</p> <p>Arguing the 3<sup>rd</sup> ground, Mr. Walubiri submitted that if orders sought in the Notice of Motion are not granted by this Court, the four applicants will suffer irreparable damage because the Constitutional Court made findings which are injurious to the four applicants and that they are entitled to a fair hearing and will incur enormous costs if the Notice of Motion is not allowed.</p> <p>&nbsp;</p> <p>With regard to the fourth ground, Mr. Walubiri submitted that the balance of convenience favours stay of execution and grant of an injunction.</p> <p>&nbsp;</p> <p>Finally Mr. Walubiri submitted that the application was instituted without delay.&nbsp; He prayed Court to allow the application.</p> <p>&nbsp;</p> <p>Mr. J.M. Mugisha, lead counsel for the 2<sup>nd</sup>, 3<sup>rd</sup> and 5<sup>th</sup><sup> &nbsp;&nbsp;</sup>respondents, opposed the motion.&nbsp; He relied on two affidavits filed in reply to the affidavit of the first applicant.&nbsp; He contended that the Notice of Motion is grossly misconceived because it does not satisfy the Rules of the Court such as Rule 6 (2) (b).&nbsp; Learned counsel contended that the applicants have not shown that the appeal has great chances of success.&nbsp; He further contended that the four applicants have not demonstrated irreparable damage and loss, and have not tilted the balance of convenience in their favour if the application is not granted.&nbsp; Learned counsel cited and relied on the following cases in which the principles governing the granting of stay of execution or injunction have been laid down by the courts.&nbsp; These cases include:—</p> <ol> <li>Dr. Ahmed Muhammed Kasule vs. Greenland Bank in Receivership, <em>(Supreme Court Civil Application No. 07 of 2010</em>).&nbsp;</li> </ol> <p>&nbsp;</p> <ol> <li>National Housing &amp; Construction Corporation vs. Kampala District Land Board <em>(Supreme Court Civil Application No 06 of 2002.&nbsp; </em></li> </ol> <p>&nbsp;</p> <ol> <li>Akankwasa Damian vs.&nbsp; Uganda <em>(Supreme Court Constitutional Application Nos. 07 &amp; 09 of 2011).</em></li> </ol> <p>&nbsp;</p> <p>&nbsp;</p> <p>He contended that the applicants have not shown the possibility of success of the appeal and how the appeal will be rendered nugatory and that the grounds set forth by the applicants do not pass the test.&nbsp; Further Mr. Mugisha relied on the case of <strong><em><u>John Ken Lukyamuzi vs</u></em></strong><u>. <strong><em>Attorney – General &amp; Electoral</em></strong></u><strong><em> <u>Commission</u> (Supreme Court Constitutional Appeal No. 02 of 2007) </em></strong>for the view that none of the four applicants is entitled to compensation. &nbsp;(This is a matter to be considered when determining the appeal.)&nbsp; Learned counsel submitted that the balance of convenience favours the respondents.&nbsp; Finally learned counsel prayed that in case the application is granted, the intended appeal should be prosecuted within fourteen days.&nbsp; Learned counsel was constrained to say that he learnt through reading news papers that after the Court’s order of 06<sup>th</sup> March, 2014, the Speaker allowed the applicants back in Parliament.</p> <p>&nbsp;</p> <p>Mr. Joseph Matsiko supplementing Mr. Mugisha for the 2<sup>nd</sup>, 3<sup>rd</sup> and 4<sup>th</sup> respondents, contended that the four applicants have not adduced evidence to show that they are still in Parliament.&nbsp; &nbsp;He relied on the affidavit of Ms. Jane Kibirige (which incidentally was sworn on 03/03/2014 in support of Constitutional Application No. 04 of 2014 and which was disposed of by this Court on 06/03/2014) and contended that the four applicants had been ejected from Parliament.&nbsp; Ms. Patricia Mutesi (PSA) representing the first respondent associated herself with the submissions of Mr. J. M. Mugisha.&nbsp; She relied on Article 81 (2) of the Constitution and the affidavit of Bafirawala and submitted that since action had already been taken by the Speaker, the Constitution cannot be contravened.&nbsp; Unfortunately, she could not give a satisfactory answer to the question raised by Court as to whether the Electoral Commission can hold by - elections in the four constituencies before the appeal is heard and determined by this Court.&nbsp;</p> <p>&nbsp;</p> <p>Mr. Karuhanga for the 4<sup>th</sup> respondent also associated himself with the submissions of Mr. Mugisha.&nbsp; He submitted that the matters raised by the application are matters of national importance.&nbsp; He contended, correctly, that Rule 2 (2) gives this Court powers to make just orders.&nbsp; He urged Court to hear the pending appeal expeditiously.</p> <p>&nbsp;</p> <p>In reply, Mr. Walubiri pointed out that after the hearing of Constitutional Application No. 04 of 2014, this Court had on 06<sup>th</sup> March, 2014, granted stay of execution and a temporary injunction.&nbsp; Counsel referred to a letter from the Speaker of Parliament showing that indeed the Speaker had allowed the four applicants (MPs) back into Parliament after this Court granted the stay of execution and an interim injunction after determination of Constitutional Application No. 04 of 2014 on 06<sup>th</sup> March, 2014.&nbsp; The said letter was apparently copied to the Attorney – General (the first respondent) among others.&nbsp; Learned counsel contended that the learned Principal State Attorney (Ms. Mutesi) misinterpreted Article 81 (2).&nbsp; Mr. Walubiri further contended that the Court has to consider Article 81 (2) alongside Articles 83 (1) (g), 86 and the right of appeal set out in Article 132 (3) of the Constitution.&nbsp; He urged Court to hear the pending appeal expeditiously.&nbsp; Mr. Alaka who assisted Mr. Walubiri supplemented Mr. Walubiri’s submissions.&nbsp; In effect he contended that the cases of <strong>Kasule</strong> <em>(supra) </em>and <strong>Akankwasa</strong> <em>(supra) </em>are distinguishable and that the two cases were decided on their own merits.&nbsp; Learned counsel submitted that Article 81 (2) of the Constitution should be read together with Article 132 which regulates appeal to this Court.&nbsp; According to learned counsel, the Speaker of Parliament obeyed the decision of this Court dated 06<sup>th</sup> March, 2014, when she allowed the four applicants back into Parliament.&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <p>&nbsp;</p> <p><strong>CONSIDERATION:—</strong></p> <p>It is an undisputed fact that on 06/03/2014, this Court granted an interim order staying execution of the decree of the Constitutional Court by which that Court had ordered the expulsion from Parliament of the 1<sup>st</sup>, 2<sup>nd</sup>, 3<sup>rd</sup> and 4<sup>th</sup> applicants.&nbsp; It is also clear from the letter written by the Speaker on 07/03/2014 which letter counsel for the applicants showed to the respondent’s counsel in Court during the hearing of the application that the Speaker rescinded her previous decision of 25<sup>th</sup> February, 2014, by which the Speaker had ordered the four applicants to vacate Parliament.&nbsp; The Speaker’s letter to the four applicants was issued as a result of our orders made on 06<sup>th</sup> March, 2014, granting an interim stay of execution and an injunction.&nbsp; Learned counsel for the respondents stated in Court during submissions that they read from the press that the Speaker had indeed allowed the applicants back in Parliament.&nbsp; So it is now public knowledge that the applicants are back in Parliament.</p> <p>&nbsp;</p> <p>The most important law regulating the granting of temporary order of stay of execution and or an injunction is Rule 6 (2) (b) of the Rules of this Court.&nbsp; It is couched in the following words:—</p> <p><em>6 (2) Subject to subrule (1) of this rule, the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the Court may—</em></p> <p><em>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong>“ (a)</strong>………………………………………………………………….;</em></p> <ol style="list-style-type:lower-alpha"> <li><em>in any Civil Proceedings <strong>where a Notice of Appeal has been lodged in accordance with rule 72 of these Rules, order a stay of execution, &nbsp;an injunction or stay proceedings as the Court may consider just.”</strong></em></li> </ol> <p>&nbsp;</p> <p>In the 3<sup>rd</sup> paragraph of his affidavit, the first applicant deponed that the applicants <strong>“……… have filed a Notice of Appeal and requested for a typed copy of the proceedings ……..”</strong></p> <p>&nbsp;</p> <p>He annexed to the affidavit a copy of the Notice of Appeal and a copy of the letter requesting for the proceedings.&nbsp;&nbsp; This averment has not been challenged nor contradicted by anybody leave alone the respondents.</p> <p>&nbsp;</p> <p>Further, in the fourth paragraph of the same affidavit, the 1<sup>st</sup> applicant deponed that <strong>“<em>the</em> intended appeal raises several constitutional legal issues warranting serious judicial consideration by the Supreme Court and <em>prime facie has good chances of success.”</em></strong></p> <p>&nbsp;</p> <p>He annexed to the same affidavit a proposed memorandum of appeal setting out nine grounds of appeal in which Articles 86 (1) (g), 83 (1) and 119, among others, are proposed to be argued during the hearing of the appeal. &nbsp;&nbsp;In view of the foregoing, we are not persuaded by Mr. Mugisha’s contention that the application is misconceived.&nbsp; In our opinion, the motion satisfies the basic requirements set out in Rule 6 (2) (b).&nbsp; The Articles of the Constitution in contention are 81 (2) (b), 83 (1) (g), 86, 119 and 132 (3).&nbsp;</p> <p>&nbsp;</p> <p><strong>Article 81 (2) states:—</strong></p> <p><strong>&nbsp;(2)</strong>&nbsp;&nbsp;&nbsp; <em>Whenever a vacancy exists in Parliament, the Clerk to Parliament shall notify the Electoral Commission in writing within ten days after the vacancy has occurred; and a by-election shall be held within sixty days after the vacancy has occurred.</em></p> <p>This clearly refers to a vacancy in Parliament.&nbsp; The matter needs decision from this Court when determining the appeal.</p> <p>&nbsp;</p> <p><strong>Article 83 (1) (g) states:—</strong></p> <p>A Member of Parliament shall vacate his or her seat in Parliament;</p> <p><strong><em>(g)</em></strong>&nbsp;&nbsp;&nbsp;&nbsp; <em> if that person leaves the political party for which he or she stood as a candidate for election to Parliament to join another party or to remain in Parliament as an independent member;</em></p> <p>&nbsp;</p> <p>A perusal of the majority judgment and that of the minority shows very clearly that there is a controversy to be cleared by this Court when determining the pending appeal.</p> <p>&nbsp;</p> <p><strong>Article 86 (1) and (2) reads:—</strong></p> <ol> <li><em>&nbsp;&nbsp;&nbsp;&nbsp;The High Court shall have jurisdiction to hear and determine any question whether—</em> <ol style="list-style-type:lower-alpha"> <li><em>a person has been validly elected a member of Parliament or <strong>the seat of a member of Parliament has become vacant; or (emphasis added).</strong></em></li> </ol> </li> </ol> <p>&nbsp;</p> <p>In the light of these provisions this Court shall have to decide as to which Court has the jurisdiction to declare that a seat in Parliament is vacant in a situation such as that obtaining in this case.</p> <p>&nbsp;</p> <ol> <li><em>&nbsp;&nbsp;&nbsp;&nbsp; A person aggrieved by the determination of the High Court under this article may appeal to the Court of Appeal.</em></li> </ol> <p>&nbsp;</p> <p>This is clear about appealing against a decision of the High Court.</p> <p>&nbsp;</p> <p><strong>Article 132 (3) reads:—</strong></p> <p><em>Any party aggrieved by a decision of the Court of Appeal sitting as a constitutional court is entitled to appeal to the Supreme Court against the decision; and accordingly, an appeal shall lie to the Supreme Court under clause (2) of this article.</em></p> <p>&nbsp;</p> <p>This is clear about appeals in Constitutional matters.</p> <p>&nbsp;</p> <p>In so far as the effect of the Attorney - General‘s advice is concerned, the relevant parts of Article 119 (3) and (4) of the Constitution spell out his role in these words:—</p> <p>(3) The Attorney General shall be the principal legal adviser of the</p> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Government.</p> <p>&nbsp;</p> <p>(4) The functions of the Attorney General shall include the following—</p> <p><strong>(a)</strong>&nbsp;&nbsp;&nbsp;&nbsp; <em>to give legal advice and legal services to the Government on any subject;</em></p> <p>&nbsp;</p> <ol style="list-style-type:lower-alpha"> <li><em>…………………………………………………………………</em></li> </ol> <p>&nbsp;</p> <ol style="list-style-type:lower-alpha"> <li><em>to represent the Government in courts or any other legal proceedings to which the Government is a party; and</em></li> </ol> <p>&nbsp;</p> <p>The advice of the Attorney - General does not appear to operate as binding orders but again this Court will decide this issue after hearing arguments of both sides in the appeal.</p> <p>&nbsp;</p> <p>As for the rest of the legal arguments raised by Counsel on both sides, we think that these are matters for decision after the appeal itself has been argued.&nbsp; But there can be no doubt that the appeal raises constitutional and legal issues that warrant serious judicial consideration by this Court.&nbsp;</p> <p>&nbsp;</p> <p>The principles which govern the grant of stay of execution and or injunctions are well known.&nbsp; The authorities cited to us by Mr. Mugisha all refer to those principles in one form or another.&nbsp; Thus at page 7 of the Ruling of this Court in <strong><em>Dr. A.M. Kisule</em></strong> &nbsp;case <em>(supr</em>a) this Court stated, <em>inter alia </em>:—</p> <p><em>For an application in this Court for a stay of execution to succeed, the applicant must first show, subject to other facts in a given case, that he / she has lodged a Notice of Appeal in accordance with Rule 72 of the Rules of this Court.&nbsp; The other facts, to which lodgment of the Notice of Appeal is subject, vary from case to case but include the fact that the applicant will suffer irreparable loss if a stay is not granted; that the applicant’s appeal has a high likelihood of success.&nbsp; </em></p> <p>&nbsp;</p> <p><em>The most often cited authority in applications of this type is <strong>Lawrence Musiitwa Kyazze vs. Eunice Busingye, (Supreme Court Civil Application No. 18 of 1990), </strong>in which this Court held that “Parties asking for a stay” should meet conditions like: </em></p> <ol> <li><em>That substantial loss may result to the applicant unless the order is made.</em></li> <li><em>That the application has been made without unreasonable delay.</em></li> </ol> <p>&nbsp;</p> <p>Naturally no two cases have identical facts.&nbsp; So situations vary from case to case.&nbsp; Accordingly, the nature of decisions depend on the facts of each case.&nbsp; We think there are sufficient grounds shown upon which we should exercise our discretion. &nbsp;We are satisfied that in this case the interest of justice demands that the issues in dispute should be heard and determined on appeal.&nbsp; In the result, we allow the application and make the following orders:—</p> <ol style="list-style-type:lower-alpha"> <li>We order stay of execution of the Orders of the Constitutional Court dated 21<sup>st</sup> February 2014, and the consequential decree in respect of <em>Constitutional Petitions Nos. 16, 19,21</em> and <em>25 of 2013</em>; and</li> </ol> <p>&nbsp;</p> <ol style="list-style-type:lower-alpha"> <li>We grant an injunction restraining the Speaker of Parliament and the Deputy Speaker of Parliament as well as the Electoral Commission, from implementing the orders of the Constitutional Court until the determination of the pending appeal by this Court or until further orders.&nbsp;</li> </ol> <p>&nbsp;</p> <ol style="list-style-type:lower-alpha"> <li>Everything possible must be done to ensure that the Record of the pending Appeal is served on each of the respondents as soon as possible.</li> </ol> <p>&nbsp;</p> <ol style="list-style-type:lower-alpha"> <li>Appropriate steps should be taken to have the appeal disposed of expeditiously.</li> </ol> <p>&nbsp;</p> <ol style="list-style-type:lower-alpha"> <li>The cost of this application shall abide the final determination of the appeal.&nbsp;</li> </ol> <p>&nbsp;</p> <p>Consequently the orders which we granted on 06<sup>th</sup> March, 2014, after the hearing of Constitutional Application No. 04 of 2014 between the same parties shall lapse upon service of these orders on institutions, persons and officers affected by these orders.</p> <p>&nbsp;</p> <p><strong>Dated </strong>at <strong>Kampala </strong>this<strong> </strong><strong>…10th</strong><strong>………</strong><strong> </strong>day of<strong> …July…...&nbsp; 2014.</strong></p> <p>&nbsp;</p> <p><strong>———————————</strong></p> <p><strong>B.M.&nbsp; Katureebe</strong></p> <p><strong>Justice of the Supreme Court. </strong></p> <p>&nbsp;</p> <p><strong>———————————</strong></p> <p><strong>J. Tumwesigye</strong></p> <p><strong>Justice of the Supreme Court.</strong></p> <p>&nbsp;</p> <p><strong>———————————</strong></p> <p><strong>Dr. E. Kisaakye</strong></p> <p><strong>Justice of the Supreme Court. </strong></p> <p>&nbsp;</p> <p><strong>———————————</strong></p> <p><strong>Dr. B.J.&nbsp; Odoki</strong></p> <p><strong>Ag. Justice of the Supreme Court. </strong></p> <p>&nbsp;</p> <p><strong>———————————</strong></p> <p><strong>J.W.N.&nbsp; Tsekooko</strong></p> <p><strong>Ag. Justice of the Supreme Court. </strong></p> <p>&nbsp;</p> <p><strong>———————————</strong></p> <p><strong>G.M.&nbsp; Okello</strong></p> <p><strong>Ag. Justice of the Supreme Court.</strong></p> <p>&nbsp;</p> <p>&nbsp;<strong>———————————</strong></p> <p><strong>C.N.B.&nbsp; Kitumba</strong></p> <p><strong>Ag. Justice of the Supreme Court. </strong></p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-4339bd0c5a698aa9cec695e0de3d82c8"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/supreme-court/2014/11/supreme-court-2014-11.doc" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:35:48 +0000 Anonymous 15711 at https://old.ulii.org