[2016] UGHCCD 18
The court held that the application was fundamentally flawed both procedurally and substantively. Procedurally, the application for an interim order was brought by Notice of Motion instead of Chamber Summons, and interlocutory applications cannot stand alone without a main suit. Substantively, the President of...
Source-derived case information.
- Citation
- [2016] UGHCCD 18
- Parties
- Applicant: Bigirwa Moses; Applicant: Hakim Kizza; Respondent: Yoweri Kaguta Museveni
- Court
- HC: Civil Division (Uganda)
- Jurisdiction
- Uganda
- Case Number
- Misc. Cause No. 0063 of 2016
- Procedural Posture
- Miscellaneous Cause / Ruling on Preliminary Objections and Application
- Outcome
- application summarily dismissed with costs
- Judges
- Musota, J
- Legal Topics
- Interim Injunctions, Presidential Immunity, Abuse of Process, Jurisdiction, Election Petitions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bigirwa Moses
Applicant
Hakim Kizza
Applicant
Yoweri Kaguta Museveni
Respondent
Procedural Posture
Miscellaneous Cause / Ruling on Preliminary Objections and Application
Legal Issues
- 1 Whether an interim order can be sought by Notice of Motion instead of Chamber Summons.
- 2 Whether an interlocutory application can stand as a substantive cause without a main suit.
- 3 Whether the President of Uganda can be subjected to court proceedings while in office under Article 98(4) of the Constitution.
Ratio Decidendi
The court held that the application was fundamentally flawed both procedurally and substantively. Procedurally, the application for an interim order was brought by Notice of Motion instead of Chamber Summons, and interlocutory applications cannot stand alone without a main suit. Substantively, the President of Uganda is immune from court proceedings while in office under Article 98(4) of the Constitution, except as a candidate in an election petition, which must be heard by the Supreme Court. The issues regarding the respondent's age and the validity of the election had already been determined by the Supreme Court and could not be re-litigated in the High Court. The application was...
Court Disposition
application summarily dismissed with costs
Orders
- The application is summarily dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
26 paragraphs
**THE REPUBLIC OF UGANDA**
**IN THE HIGH COURT OF UGANDA AT KAMPALA**
**CIVIL DIVISION**
**MISC. CAUSE NO. 63 OF 2016**
**1. BIGIRWA MOSES**
**2. HAKIM KIZZA ::::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS**
**VERSUS**
**YOWERI KAGUTA MUSEVENI :::::::::::::::::::::::::::: RESPONDENT**
**BEFORE: HON. JUSTICE STEPHEN MUSOTA**
**RULING**
This is an application for an interim order stopping the respondent from swearing in as President of Uganda. That the respondent be subjected to medical and scientific examination to calculate the structural bones to cast away any doubt the respondent’s age.
The application is by Notice of Motion under Order 52 Rules 1 and 2 of the Civil Procedure Rules and Section 98 of the Civil Procedure Act and the applicants appear in person. It is supported by the affidavit of Bigirwa Moses.
The respondent is represented by Mr. Kiryowa Kiwanuka and Mr. Sebuwufu Usaama.
At the commencement of the hearing of this application Mr. Kiryowa Kiwanuka learned counsel for the respondent raised preliminary points of law against the application and sought for its summary dismissal. The respondents asked that since they are lay people, this application be maintained as it is of national importance.
I have considered the application and the submissions by respective counsel.
I will without hesitation uphold the preliminary objections raised by Mr. Kiryowa Kiwanuka because of the following reasons:
1. Temporary injunctions are supposed to be filed by way of Chamber Summons and not Notice of Motion. This however would not have been a bar for this court to entertain the applicant’s case but the nature of the “cause of action” cannot save the application. 2. Interlocutory applications cannot be brought as substantive causes for they are by their nature equitable reliefs and can only issue if there is on record a main application for a temporary injunction which is not the case here. Interlocutory applications are intended to preserve a given status quo. An interim application cannot stand alone as a substantive cause. 3. For a main application to be recognized by court it must arise from a head suit or cause and one of whose prayers must be for permanent injunction. This is not the case here.
1. As admitted by the applicants, the respondent is the President of the Republic of Uganda. Under Article 98 (4) of the Constitution of the Republic of Uganda it is promulgated that:
***“while holding office, the president shall not be liable to proceedings in any court”.***
Therefore the respondent cannot be subjected to these proceedings.
1. The only exception is when he/she doubles as a candidate in an election. In that case he/she is sued as a candidate and the only court with jurisdiction is the Supreme Court. 2. I must note that the validity of the recent elections is no longer in question since the Supreme Court recently pronounced itself on the matter. It is no longer in issue. As rightly submitted by Mr. Kiryowa the constitution is very clear on issues of age or any other complaints against the candidate for president. The same is echoed in the Presidential Elections Act. These issues ought to have been raised and dealt with in the presidential election petition. 3. This is a case with no merit and does not meet the threshold which can cause this court to waste its valuable time to entertain. It is in fact an abuse of court process.
For being frivolous, vexatious and an abuse of the process of this court, the same will be summarily dismissed with costs for being lay in law is not a license to abuse the process of court.
I so order.
**Stephen Musota**
**Judge**
**09.05.2016**