[2015] UGHC 10

## **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT KAMPALA**

**(CIVIL DIVISION)**

### **CIVIL SUIT NO. 157 OF 2015**

**AKAMPURIRA LABAN JOHN .... PLAINTIFF**

#### **VERSUS**

- **1. DEMOCRATIC PARTY** - **2. MATH1US NSUBUGA (THE SECRETARY GENERAL DEMOCRATIC PARTY)** - **3. VINCENT P. MAYANJA (CHAIRMAN DEMOCRATIC PARTY KAMPALA DISTRICT)** - **4. BUKENYA EDWARD** - **5. KAS1RYE ALI NGANDA** - 6. ALLAN SEWANYANA - 7. ABDU MAYANJA - **8. SEKIBENGO G. WILLIAM**

#### **9. KABOGGOZA YUSUF**

CERTIFIED TRUE \

COPY OF THE ORIGINAL '

- **10. NAMAKUSA ROSE** - **11. SSEMUJJU ROSE DEFENDANTS**

#### **BEFORE: HON; JUSTICE BENJAMIN KABIITO**

#### **RULING**

This is a ruling on preliminary objections raised by the defendant in respect to the main suit filed by the plaintiff.

The plaintiff brought this claim against the defendants severally and jointly for the following prayers;

a) A declaration that the election of the $4th$ , $5th$ , $6th$ , $7th$ , $8th$ , $9th$ , $10th$ A decidiation man are office bearers in Democratic Party is null and 11^th defendants as office bearers in Democratic Party is null

b) An order cancelling and setting aside the purported election held between April and May 2015 in Makindye Division where the 4th, 5th, 6th, 7th, 8th, 9th, 10th and 11th defendants were elected

- c) An order maintaining the old office bearers in the affected as office bearers and delegates. - d) An order of permanent injunction restraining/ prohibiting and or stopping the 4th, 5th, 6th, 7th, 8th, 9th, 10th and 11th defendants from further participating in any of the activities and elections of Democratic Party until they become full members.

e) An order restraining/ prohibiting and or stopping the 1st, 2nd and<br>and defendants for 3^rd defendants from organizing, holding and or conducting the forth coming National Delegates Conference until the determination of the suit.

f) Costs of the suit. $\Box$

The defendant filed a written statement of defence on the $20th11/12015$ and depicd the integral integral of defence on the 29th/6/2015 and denied the plaintiff's claims as stated in the plaint

a) The Democratic Party is statutorily enjoined to conduct the above mentioned programme in accordance with requirements of the Political Organizations Act which requires the every Political party to organize a National Delegates Conference preceding the 2016 National elections.

b) The said elections were dully conducted in accordance with the Democratic Party Constitution and the 4^th to the 11^th

$\mathbf{2}$

$\bullet \quad \bullet \quad \bullet$

C

$\mathbb{R}$

C

$\mathbf{I}$

<table>

Image: Contact and Contact and Contact and Contact and Contact and Contact and Contact and Contact and Contact and Contact and Contact and Contact and Contact and Contact and Contact and Contact and Contact a

$\blacksquare$

$\mathbf{I}$

$\pmb{\mathbb{I}}$

$\blacksquare$

$\mathbf{I}$

- c) The plaintiff was free to participate in the elections but opted and willingly did not do so and that means he has no cause of action or prima facie case to present to the court. - d) The activities the Democratic Party is conducting are statutory requirements under the Political Parties Organisation Act, otherwise the party may be de registered and denied to participate in the 2016 National Elections.

The plaintiff filed an affidavit in reply to the written statement of defence dated 09/07/2015 and maintained that;

- a) The said elections were conducted contrary to the Party's constitution. - b) Although he was free to participate in the elections, it was against the Party Constitution to freely participate with the 5^th - to 11^th defendants who were not party members and also the 4^th defendant who was elected in absentia contrary to the Parly Constitution.

At the scheduling conducted before court on the $10^th/.7/2015$ , counsel for the defendants indicated to court that he had preliminary points of law that he wanted to raise at that point.

Counsel for the defendants in that respect, raised two preliminary points of law to the effect that;

- 1. Whether the plaintiff has Locus standi to institute this suit. - 2. Whether the plaintiff has a cause of action against the defendants in this action.

The court made directives to both counsel to file written submission in respect to the preliminary points of law raised by counsel for the defendants.

$\overline{3}$

I have considered the written submissions filed by both $coun_{sel}$ have put them into consideration in this ruling.

It should be noted that counsel for the defendant raised a third issued in the should be noted that counsel for the defendant raised a third issued in the should be noted that counsel for the defendant raised a third issue in their submissions to the effect that;

Whether the Democratic Party 2015 National Activities Road mon Work Plan to organize grass root elections can be stopped in light the revised milestones for 2015 -2016 General elections Roadma made by the Electoral Commission.

# LEGAL POSITION ON A PRELIMINARY POINT OF LAW.

The legal position on a preliminary point of law was settled by;

Mukisa Biscuit Manufacturing Company Url Versus West & Distributors Ltd (1969) E. A 193.

Sir Charles Newbold P had this to say at page 701:

"A Preliminary objection is in the Nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side $d^{\ell}$ correct. It cannot be raised if any fact has to be ascertained of what is the exercise of Judicial Discretion."

In the same case, Law JA on Page 700 had this to say;

"So far as I am aware, a preliminary objection consists of a point of law which is a preliminary objection consists of a point of law which has been pleaded or which arises by cled implication out of the pleadings, and which if argued as a preliminary objection of the pleadings, and which if argued as a preliminary objection may dispose of the Suit. Examples are objection to Juriedia in a dispose of the Suit. Examples are of the Suit. objection to Jurisdiction of the Suit. Examples Limitation or a submission of the Court or a plea of $(t^{\text{imel}})$ Limitation or a submission that the parties are bound by $\mathbb{R}^{\mathbb{N}}$ Contract giving to the Suit to refer the dispute to Arbitration."

Having laid down the legal position of preliminary objections, I will now resolve the issues as framed during the scheduling conference.

#### **ISSUE ONE**

$\bigcirc$

$\mathcal{L}$

$\mathcal{L}$

$\mathbb{C}$

$\mathbb{R}^2$

$\mathbb{R}^2$

**Example**

$\mathcal{L}_{\mathcal{A}}$

# Whether the Plaintiff has Locus Standi to institute this suit.

Counsel for the defendants submitted that the plaintiff is no longer the Publicity Secretary of the Democratic Party and for that reason he has no locus standi to sue for and on behalf of the party and that the plaintiff does not have any authority from the party to file this case.

The plaintiff in paragraph 1 of the plaint, states the capacity in which he is instituting this suit as follows;

"The plaintiff is a male adult Ugandan of sound mind, a member and the Democratic Party (DP) Publicity Secretary Makindye West, whose address..................................

Membership of the 1^st defendant, is provided for in Chapter 2, Article 4 of the Democratic Party Constitution as amended by the National Delegates Conference Namboole, 2005 PEXH No. 7.

Article 4 of the Democratic Party Constitution provides;

"Membership of the party shall be open to any Ugandan citizen who accepts the aims, policies and discipline of the party."

$\mathsf{S}$

The plaintiff is bringing this suit in his individual capacity as a member of the 1st defendant who has rights under Article 9 of the same Constitution, to participate in party activities.

Po.

$\Omega_{\mathbb{R}}$

$\mathbf{0}$

$h$

真

$\mathbb{h}$

the.

$CO$ -

$Co$

$\ln$

$0₁$

com

WO

of

Besides, under clause XXIX of the National Objectives and Directive Besides, under clause $\frac{XXIX}{the}$ of the Dalian the Dalian the Dalian the Dalian the Dalian the Dalian the Dalian the Dalian the Dalian the Dalian the Dal Besides, under clause XXIX of the plaintiff has a right to promote<br>principles of State Policy, the plaintiff has a right to promote

democracy and the rule of law. aemocracy with missing the plaintiff has locus standi to bring this suit to<br>In the result, I find that the plaintiff has locus standi to bring this suit to

challenge the purported elections. For the reasons stated, this point of law is dismissed.

## **ISSUE TWO**

Whether the plaintiff has a cause of action against the defendants in this action.

A cause of action was defined in the case of Auto Garage and another Versus Motokov [1971] EA 515, at page 514, Spry VP held at page 519 as follows;

"I would summarise the position as I see it by saying that if a plain shows that the plaintiff enjoyed a right, that the right has been violated and the defendant is liable, then in my opinion, a cause of action has been disclosed and any omission or defect may be put right by amendment if, on the other hand, any of those essentials is missing, no cause of action has been shown and no amendment is

In paragraph 1 of the plaint, plaintiff avers that, he is a member of the 1st defendant $\frac{1}{2}$ . the 1st defendant, with rights enjoyed by a member and brought this

As a member of the 1^st defendant, the plaintiff is entitled to rights that are provided for under Article 9 of the Democratic Party Article 9, provides for the rights that a member may enjoy. $\frac{1}{2}$

- a) To take part in party activities; - b) If entitled, to attend meetings and freely express his views on all matters under discussion, and to vote according to his - c) To elect and if qualified to be elected to the organs of the Party; d) To be heard in person whenever a decision is to be taken regarding his activities or conduct; - e) To address any question or statement to any organ of the party; f) To appeal against any decision taken against him or her from his party branch to the National Executive Committee or an appropriate appeal organ of the party."

Pursuant to this Article, the plaintiff has rights on the basis of which he can institute an action against any party, where any of these rights are violated.

In this action, the plaintiff alleges that his rights were violated by the 1^st defendant and its officials in the conduct of the grass root

The rights complained against in paragraph 11, 12, 13, 14 and 15 of the plaint relate to the conduct of the grass roots election, in contravention of the qualification requirements as set out in the Constitution.

In particular, the plaintiff complains of;

1. The election of non members of the Party in the purported grass root elections of some of the office bearers.

2. The election of some of the office bearers in absentia.

On account of the claim, the plaintiff, in my view, has grounds to complain, that his right to promote democracy and the rule of law Was violated, by the contravention of the qualification requirements of the constitution.

jective romote

suit to

- Ints in

$\textcolor{red}{\textcolor{blue}{\hat{\textcolor{blue}{\mathbf{B}}}}}$

$\mathbb{R}^{\mathbb{Z}}$

$\mathcal{L}^{\text{max}}$

e and th He

**Print**

been

$ale of$

$!put$

$\sim$ os is

**Mis**

$10^{\circ}$

Finally, it is not in issue that it is the $1^{st}$ defendant that organized that returned the Finally, it is not in 1995 root elections that returned the 4th to $100$ mm conducted the grass root elections. defendants as office bearers.

In the circumstances, I find that the plaintiff's plaint disclose a cause of action against the defendants.

In the result, this preliminary point of law is dismissed..

Regarding the joinder of respondents in this action, it is my view, that this point needs to be investigated by the court through a trail.

In the result since this point delves into the evidence relating to the status of the $1st$ , 2nd and $3rd$ respondents, this point of law is

ISSUE THREE

Whether the Democratic Party 2015 National Activities Road map Work Plan to organize grass root elections can be stopped in light of the revised milestones for 2015 -2016 General elections Roadmap In my determination, on a perusal of the pleadings, in this action, this issue involves the consideration of evidence of an an an and a mosed

issue involves the consideration of the pleadings, in this activity road map in relation to the National Flacting the proposed With respect, the consideration of this issue offends the definition of $d$ preliminary point of law as set out in the Multiple offends the definition of $d$

With respect, the preliminary point of law as set out in the Mukilsa Biscuits case. In the result and for the reasons stated, all the preliminary points of defendant. In the result wild in a raised by counsel for the defendant lack merit and are

$.95$

**JUDGE 17/9/2015**