The Republic of Uganda

In the Constitutional Court of Uganda at Kampala

Misc. Constitutional Application N0. 45/2013

(Arising from Constitutional Application N0 44/2013)

(Arising from Constitutional Petition N0.37/2013)

Mugoya Kyawa Gaster …………………………………………………….Petitioner

Versus

Attorney General…………………………………………………………... Respondent

Before Single Justice Hon. Lady Justice Faith Mwondha, JA

RULING

This application was by way of Notice of Motion Misc. Application N0 45/2013(Arising out of Constitutional Application N0. 44/2013. The applicant sought an interim order to issue under S.12 (1) of the Judicature Act Cap 13 and Rule 2 (2) of the Judicature (Court of Appeal Rules) to stay execution in HCCS N0. 600/2012 restraining the respondent, its employees, agents and servants from selling and evicting the applicant and students from the property comprised in Kyadondo Block 244 Plots 4506 at Plot 4507 at Kisugu, Kibuli and that costs be in the cause. The application was supported by the affidavit deponed by the applicant Mugoya Kyawa Gaster. Briefly the grounds were that

1. On 25 Feb 2013 the applicant executed a consent decree with Global Trust Bank and Another. The consent was attached and marked Annexture “A”
2. That the consent was heard inter-parties
3. That it was not part of the terms of the consent Decree that upon default of the first installment the decree shall fall due for execution
4. That without issuing notice to show cause to the applicant the Deputy registrar, Execution Division of the High Court Kampala issued a warrant of attachment and sale of the mortgage property for Kibuli Girls School Ltd.
5. That the auctioneers have openly and vehemently told the applicant to forget about the said property as they had already obtained a deposit from a willing buyer before the expiry of the 30 days notice.
6. That the warrant was issued without taking care of the 100 students who were at the verge of missing their final mock and UNEB Exams as a result of the DR warrant among others

The Attorney General filed a reply through the affidavit of one Bafirawala Elisha. He stated among others that the applicant did not have a prima facie case against the respondent in the Constitutional Petition N0 37/2013. That the applicant could not challenge a decree of court by way of filing a Constitutional Petition among others and he prayed that the application be rejected.

Global trust bank was not joined in the Constitutional Petition 37/2013 much as it was a party in HCCS N0.600/12 where the consent Decree was raised from. On the 29^th July 2013 counsel for Global Trust Bank Ms Mugenyi Arthur drew the attention of this court to the order staying execution of the consent decree. He addressed this court as per the record on 29/07/13. So this court under O 1 r10 of the CPR ordered that Global Trust Bank be joined and directed the Registrar to provide all pleadings to him for effective representation of his client. The application was fixed for hearing on 30/07/2013. On that date, the parties and their lawyers were in court. Counsel Bukenya Abbas was present for the applicant, counsel Kibuka Rashid was present for the respondent, counsel Mugenyi Arthur was present for Global Trust Bank.

Counsel Bukenya submitted among others that the basis of the application was that there was a consent judgment/decree with Global Trust Bank. That the attached property as mentioned above was attached without notice having been given to the applicant to show cause why the warrant should not be issued on the said property. He submitted that there was a pending constitutional petition to be decided by a Coram of judges and if not granted it would render the constitutional petition nugatory. That the applicant was challenging the issuance of the warrant as it was unconstitutional and was issued in breach of Article 28 of the Constitution. He further submitted that by the above the application should be granted. He cited the case of Kizza Walusimbi and 2 others V. Senyinde Charles and 4 others Civil Application N0. 78/2012.

Counsel Rashid Kibuka submitted that para 8 of the affidavit of Bafirawala Elisha for the Attorney General , he opposed the grant of the application as per the grounds given/stated therein.

Counsel Mugenyi submitted among others that the Constitutional Petition would not work as an appeal against HCCS N0. 600/2012 and that in para 4 of the Mr. Bafirawalas affidavit he stated clearly that the applicant could not challenge a decree by way of filing a constitutional petition. He argued that the reason why the Registrar did not serve them with notice was clear. He had failed to comply with the consent decree. The installments were not paid to date. That he didn’t indicate that he had paid any amount due and he had a total of Shs.860m /= to pay. That from Annexture “F” which the applicant attached on the application it was clear that the court bailiff convinced the police that the students would not be affected. That this contradicted his affidavits when he stated that the court bailiffs vehemently warned him if he did not vacate. He submitted further that whoever comes to equity must come with clean hands. That the applicant had no clean hands but was seeking to distort justice by frustrating the decree which he consented to.

In reply Counsel Bukenya never made any response to Annexture “F” which was a letter dated 23 July 2013 from Mr. Turuhukwa Erasmus for IGP written to Director Kampala Metropolitan Police in respect of Warrant to give vacant possession of Property situated at Kyadondo Kisugu Kampala District Block 244 Plots 4506 and 4507 –HCCS N0 600/2012.

The letter was self explanatory. In the 3^rd paragraph it stated and I quote,
“ The court bailiff has assured this office that the new people coming are only to attach the defendants interest and hand over to the new management and the school operations are not to be disturbed and the children will not be traumatized in any way”

“We advise that this be adhered to and in case the court bailiffs divert from this course of action the exercise should be halted.”

I carefully considered the submissions and carefully read the affidavit of the applicant and that of the Attorney General deponed by Bafirawala Elisha. Rule (1) of the Judicature Court of Appeal Rules provides for the practice and procedure of court in connection with appeals and indeed appeals from the High Court.

It is clear that this provision relates to the subject of intended appeals and appeals from High court. This application is in connection with constitutional petition N0. 37/13. I was not satisfied that the provision included also intended petitioners if strictly interpreted. If that were the case then the system would be clogged with such applications.

Rule 2 which the applicant cited provides “Nothing in these Rules shall be taken to limit or otherwise affect the inherent power of the Court or High Court to make such orders as may be necessary for attaining the ends of justice or to prevent abuse of the process of any such court and that power shall extend to setting aside judgments which have been proved null and void after they have been passed…and   shall be exercised to prevent abuse of the process of any court caused by delay”

Rule (1) of the Judicature(  Court of Appeal Rules) cited  above is applicable in respect of appeals so it follows that Rule 2 directly flows from it. There was no judgment passed which has been proved null and void. There is only a consent judgment/Decree which is not in dispute or contention. There was no attempt to satisfy this court that this application was equivalent to an appeal or intended appeal. It is my well considered view that the applicant ought to have moved the High Court to set aside the consent judgment which move would have been done before the warrant of attachment was issued. The fact that the applicant filed the petition in this court first on 19^th July 2013, shows that he was not coming to equity with clean hands. The application for an interim stay is itself an abuse of court process and is not in the interest of justice. The dates of paying the money owed as per the consent judgment had long passed.

 I was not satisfied that there was a prima facie case established therefore by the applicant and neither was I satisfied that he was going to suffer irreparable damage if the application is not granted. So I could not appreciate the reasoning that the Constitutional Petition would be rendered nugatory. There was no attempt by the applicant to show how he intended to pay the moneys due. The applicant was just abusing court process.

I read and considered the case cited by the applicants counsel in support of his submissions ie Application N0 78/2012Kizza Walusimbi Birazio and 2 others v. Senjubo Charles and three others, but I found it distinguishable in the material particulars in that:

1) It was an application for interim stay arising out of a Civil Suit. Actually it was an interlocutory Appeal.

2) The parties were disputing ownership of the land at Bunamwaya (each party was claiming ownership) whereas in the instant case it was a mortgage to Global Trust Bank after they lent money to the applicant which facts are not in dispute.

3) The only similarity was that in that case they had entered a consent judgment as well which was not the determinant factor for the success of this application.

I was not convinced that it was a good precedent for this application. There is evidence brought by the applicant in Annexture “F” which sharply contradicted his affidavit. So there is no threat of eviction of the students who he had fronted that they will miss their mock exams. There was assurance in that Annexture “F” that the students will not be traumatized.

Because of the above I am unable to grant the order prayed for as I found no merit in the application as has been discussed above.  Costs shall be in the cause.  The best alternative in my view would be to constitute a full Coram so that the Constitutional Petition N0. 37/2013 is disposed of without any further delay.

The Registrar is accordingly advised/directed to constitute a full Coram to facilitate disposing off of the main Constitutional Petition N0. 37/2013.

Same is fixed for 2/09/2013 for mention.

Faith Mwondha

JA

30/07/2013