[2024] UGHC 1071

## 5 **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA HOLDEN AT GULU**

**MISCELLANEOUS APPLICATION NO. 50 OF 2024** 10 **[ARISING FROM MISC. CAUSE NO/ 002 OF 2024]**

# **DR. SHADAT SSEMAKULA MUTYABA MOHMEDED…………APPLICANT** 15 **VERSUS**

**GULU UNIVERSITY………………………………………………. RESPONDENT**

### **BEFORE: HON. MR. JUSTICE GEORGE OKELLO**

### **RULING**

A tactically astute argument has been presented by learned counsel for the Applicant Mr. Jimmy Muyanja in which he calls on this court to use a broad-brush approach and do justice in this rather omnibus application. The Application springs from a concluded Misc. Cause No. 002 of 2024. 30 That application was dismissed by this court on 27th May, 2024. The Applicant had sought for judicial review of the respondent's decision. The respondent dismissed the Applicant from the position of Senior Lecturer and Dean Faculty of Law on 1st February, 2024. His Deanship was

35 Misc. Cause No. 002 of 2024 was prematurely brought before it as the Applicant had not exhausted internal appeal process under section 57 (1)

supposed to expire in 2026. This court upheld a preliminary objection that

- 5 of the Universities and Other Tertiary Institutions Act Cap 262. Court dismissed the Application with 80% costs to be paid by the Applicant to the respondent. That decision is currently the subject of Civil Appeal No. 707 of 2024 in the Court of Appeal. - 10 The Applicant says he has since learnt that the respondent seeks to fill the position of Dean Faculty of Law, and has called on eligible staff to express interest. They are to follow the law, the procedure, and guidelines in place. The present Application, inter alia, seeks to stop the process. The Applicant claims he is still Senior Lecturer and Dean Faculty of Law in 15 spite of his dismissal. He rests this view on his interpretation of section 57 (3) and (5) of the Universities and Other Tertiary Institutions Act. The Applicant also invites court to stay any execution that may ensue from the orders of this court. He also prays for injunction to restrain the respondent from expelling or causing him to relinquish or vacate the office of Dean - 20 Faculty of Law. He asks that the status quo is preserved until final determination of the dispute between the parties under the laws of the land. The Applicant also prays for 'any such order' as may be necessary to attain the ends of justice and to prevent abuse of court process including but not limited to an order of prohibition, and costs of the Application.

The matter is launched by way of Notice of Motion supported with an affidavit. The grounds on which it is predicated are identical to those

- 5 canvassed in Misc. Application No. 048 of 2024 which court has just disposed of. Court notes that because of the bad practice of copying and pasting pleadings and submissions, both sides have confused some aspects of the present application with those of Misc. Application No. 048 of 2024. - 10

Whereas it could have been possible, this court could not consolidate the two applications because the parties argued both matters on slightly distinct planes although common questions of law and fact are apparent in both. The parties also appeared before the Deputy Registrar of Court 15 before the matters were placed before the Judge, and agreed on a schedule for filing submissions. They were invited to appear before me as the trial Judge for hearing and adoption of their submissions upon which court

delivered the instant ruling. There was thus no opportunity and time to discuss the possibility of consolidating the two applications within the 20 province of Order 11 rule 1 of the CPR. Court could not also suo motu consolidate the rulings without prior engaging the parties.

The grounds of the application are partly covered in my preface. In brief, the Applicant avers that he has appealed the decision of this court. He 25 states that the respondent has scheduled the election of Dean Faculty of Law. The election is a ploy to defeat the legal processes engaged by both sides. That whereas he has appealed, the respondent has in any case filed

- 5 notice of grounds of affirmation of the decision of this court. The election of Dean Faculty of Law would extinguish the applicant's 'subsisting status of Dean Faculty of Law' to his great prejudice and detriment. The pending appeal is yet to be determined and has great chance of success. If stay of execution is not granted, the 'main application' and the appeal will be - 10 rendered nugatory and the Applicant will suffer substantial loss. The balance of convenience favours the grant of the Application, and it is just and equitable that the prayers are granted.

The Applicant annexes documents to his affidavit. I will not reproduce the 15 affidavit for brevity but the deposition amplifies the averments in the Motion.

Ms. Cakuru Christine who is the Deputy Chief, Human Resource Management of the respondent deposed an affidavit in reply by which the 20 respondent opposes the application. She basically relies on the advice of the respondent's counsel to assert that the action is a non- starter. That the Motion is incurably defective as it arises from a matter already dismissed on a point of law. Ms. Cakuru claims the matter has been overtaken by the events, and the orders sought will serve no practical 25 purpose and are not capable of enforcement. She deposes that the Applicant has not exhausted internal remedies before lodging this matter. She also asserts that the status quo is that the Applicant was dismissed

- 5 on 1st February, 2024 and, therefore, is no longer in employment. The Application is moot, and an abuse of the court process. It is designed to frustrate the replacement of the Applicant who is no longer an employee of the respondent. The Applicant will not suffer substantial loss and any damages can be quantified and compensated for. The Appeal stands no - 10 chance of success. The Applicant has unreasonably delayed to lodge this application. The application is an afterthought and was lodged in apprehension of the prospect of the Applicant paying costs of the concluded Misc. Cause No. 002/2024. The taxation of the bill of costs in that matter was scheduled for 31 October, 2024 and the present matter - 15 was lodged two days earlier (29/10/2024). There is thus no sufficient cause for stay of execution. The respondent prays for dismissal of the Application with costs. The deponent relies on documents annexed to her affidavit. - 20 In a short rejoinder, the Applicant questions Ms. Cakuru's competence to file the affidavit on behalf of the respondent claiming she is not empowered by law. The Applicant denies that the matter for which he seeks reliefs have been overtaken by the events. He clarifies that removing him from the office of Dean Faculty of Law when due process has not been followed 25 will subject him to substantial loss. He asserts that the undignified manner of revoking his tenure as Dean Faculty of Law can not be quantified and ably compensated for in damages.

From their written arguments, the main issues for my resolution are whether court should stay the execution of its orders given in Misc. Cause No. 002 of 2024 pending appeal, and whether it should grant other prayers beyond a stay of execution. I will resolve the issue simultaneously.

Mr. Jimmy Muyanja commenced his arguments with an attack on Ms. Cakuru's affidavit. He raises a preliminary objection and contends that the deponent lacks authority to represent the University in court proceedings. He cites section 41 of the Universities and Other Tertiary Institutions Act

15 Cap 262 which provides that the University Council has powers to represent the University in all legal suits by and against a public University. Learned counsel claims the deponent is not a member of the University Council as outlined in section 38 (1) of the Act Cap 262 which lists members of the Council.

In her response, Mr. Paulsen Nuasasira argued that Ms. Cakuru is not purporting to represent the respondent in the present proceedings but is a witness. Learned counsel cites section 117 of the Evidence Act Cap 8 to contend that the deponent is a competent witness and has not been shown 25 not to understand the matters to which she makes deposition. That none of the limitations stipulated in section 117 of the Evidence Act apply to Ms. Cakuru.

- 5 In my opinion this is the sort of preliminary objection which is not capable of disposing of the application. I must, however, still make a decision on it. In **Attorney General of Uganda Vs. Media Legal Defence Initiative (MDLI) &19 others, Appeal No. 3 of 2016**, the Appellate Division of the East African Court of Justice (EACJ) held that a court seized with a 10 preliminary objection is enjoined by law to determine the objection before going into the merits or substance of the case before it. And that failure to do so amounts to an incurable procedural irregularity. I should, however, with respect, state that, the opinion of the EACJ ought to be understood in the given context. This is because in some instances preliminary 15 objections are taken by litigants when the same do not rest on pure points of law but mixed law and fact. In such a case court would be in order to decline to decide the point as such and may require evidence on trial to be adduced before disposing of it. This is common in cases where, for instance, res judicata is raised when the material before court is 20 inadequate to enable it resolve the point. See: **Mario Ali Vs. Opoka Santo, HC Misc. Application No. 14 of 2022.** Thus in **Mansukhlal Ramji Karia & another Vs. Attorney General, Civil Appeal No. 20 of 2002**, Tsekooko, JSC, writing for the Court, stated: - 25 **"Here the learned judge relied on only the pleadings and submissions of counsel for both sides and the judgment of the Court of Appeal in Civil Appeal No. 36 of 1996 for the view that the suit land was res**

- 5 **judicata. There was no evidence to show any relationship between the appellants and the parties in that appeal. In my opinion the proper practice normally is that where res judicata is pleaded as a defence, a trial court should, where the issue is contested, try that issue and receive some evidence to establish that the subject matter of the** - 10 **dispute between the parties has been litigated upon between the same parties, or parties through whom they claim."**

It has been held that it is discretionary for court to decide on when to dispose of a preliminary objection. In **Hwan Sung Limited Vs. M and** 15 **D. Timber Merchants and Transporters Limited, Civil Appeal No. 02 of 2018 (SCU)** the Supreme Court remarked:

**"… I think that it is a matter of discretion of the Court as regards when to make a ruling on the objection. No hard and fast rule can and** 20 **should be laid to fetter the Court's discretion. The exercise of the discretion must, in my view, depend on the facts and circumstances of each case."**

In the **Hwan Sung Ltd case**, the Court quoted excerpts from an earlier 25 precedent where Mulenga JSC had stated: - 5 *"***The court has option. It may or may not hear the point of law before the hearing. It may dispose of the point before, at or after hearing and it may or may not dismiss the suit or make any order it deems just. I would therefore not hold a court to be in error, which opts to hear a preliminary objection but postpones its decision to be incorporated** - 10 **in its final judgment, unless it is shown that material prejudice was thereby caused to either party; or that the decision was reached at unjudicially."**

Respectfully, I think the particular holding of the EACJ holds good on the 15 special facts and circumstances of the case before it. I do not think the EACJ intended its opinion to apply to all matters where a preliminary objection may be conceived. The court observation, with respect, is not a carte blanche to be applied to all cases in light of the liberal approach well taken by the Supreme Court of Uganda on a similar matter.

In the instant case, notwithstanding my reservation, I have decided to resolve the preliminary objection. If court were to uphold it, the respondent's affidavit would be struck out, leaving the application unopposed. That would not, however, be the end of the matter. The 25 Applicant would still be obliged to show that the unchallenged application is intrinsically tenable on its own. See: **Walimu Cooperative Savings and Credit Union Vs. Okumu Benjamin & Another, Misc. Civil Application**

5 **No. 101 of 2022** (Okello, J); **Makerere University Vs. St. Mark Education Institute, HCCS No. 378 of 1993 digested in [1994] V KALR 36** (Lugayizi, J); **Byamukama Edson Vs. Makerere University Council, HCT Misc. Application No. 312 of 2008** (Elizabeth Musoke, J, as she then was).

In this case, Ms. Cakuru does not purport to represent the respondent in the proceedings but she clearly delineates her position as a witness of the respondent. That said, whereas I find the witness to be competent and possessed of the facts and information surrounding the dispute given her

- 15 position and rank as the Deputy Chief, Human Resource Management of the respondent University, I do not, with respect, think that section 117 of the Evidence Act Cap 8 applies to witnesses who are giving evidence by way of affidavit. This is because section 1 of the Evidence Act states that it does not apply to affidavits. According to **Sarkar on Evidence, 14th Ed.** - 20 **1993, Vol. 2, p.2183** an affidavit is a statement or a declaration in writing on oath or affirmation, before a person having authority to administer an oath or affirmation. This statement was quoted with approval by Maniraguha J., (RIP) in **Dr. Runumi Mwesigye Francis Vs. The Returning Officer, the Electoral Commission & another, Election** 25 **Petition No. 02 of 2002**. See also: **Okwonga George & anor Vs. Okello James Harrison, Misc. Civil Application No.132 of 2021**. Thus an affidavit is used as proof in a court of law, a position opined in **Yoakim**

- 5 **Mwene Habyene Vs. Attorney General, SCCA No. 4 of 1996**. In this case, I think the affidavit equally meets the threshold of Order 19 rule 3 of the CPR. There appears, with respect, to be a clear lack of understanding of the distinction between legal representations of a University in judicial proceedings within the purview of section 41 of Cap 262, and having a - 10 person swear affidavit as a witness. I find the objection to be ill thought, capricious, and wrong. I over-rule it.

On the merit, beginning with a prayer for an order of stay of execution, Mr. Muyanja does not at all canvass any known legal principles. He stops at 15 submitting generally that a stay of execution is entrenched in law and a party is entitled to invoke it. Far from it, this court understands that a stay of execution is considered in the exercise of court's discretion and no litigant has an absolute entitlement to it. The discretion of course must be exercised judicially and on well-established principles. In the case of High 20 Court, the power to stay its orders is found in section 98 of the Civil Procedure Act Cap 282. This has been recognized by our apex courts in **Mugenyi & Co. Advocates Vs. National Insurance Corporation, Civil Appeal No. 14 of 1984** by the then court of Appeal for Uganda (Wambuzi, P, as he then was); and in **Lawrence Musiitwa Kyazze Vs. Eunice** 25 **Busingye, [1990] UGSC 13** by the Supreme Court. See also: **Kaggwa Vs.**

**Kawalya- Kaggwa**, **Admin. Cause No. 21 of 1972, ULR 129**.

- 5 Learned counsel for the Applicant thus contends that the respondent is wrong to claim that the application is an afterthought. He went on to pray that this court expunges paragraph 12 of the respondent's affidavit for using the word 'afterthought'. With due respect, the objection lacks merit. I do not find anything wrong with the said paragraph when read in its - 10 context. In any case, striking out the word "afterthought" would not change the meaning of the whole sentence as embodied in the paragraph. I note that the deponent seeks to say it appears the Applicant is alive to the pending taxation hearing and now appears apprehensive to pay costs of the concluded matter.

Learned counsel for the Applicant went on to argue that the on-going taxation proceedings arising from the concluded Misc. Application No. 002/2024 is an admission that the respondent has engaged the process of executing the costs awarded by this court. This argument is interesting 20 as well as it is fallacious. Learned counsel first of all earlier objected to paragraph 12 of the respondent's affidavit which speaks to the pending taxation. I note that nowhere does the Applicant plead in his Motion that any execution has been commenced or is eminent or that one has been threatened by the respondent. Court understands that it is the respondent 25 that volunteered information about the pending taxation proceedings. The

Applicant never pleaded it. It is thus strange that the Applicant's counsel now seeks to capitalize on it to make a case which is unpleaded. I do not

- 5 think the Applicant is allowed to do that. He is bound by the grounds pleaded in his Motion. See: **Ms. Fang Min Vs. Bellex Tours and Travel Ltd, Civil Appeal No. 06 of 2013, consolidated with Civil Appeal No.01 of 2014: Crane Bank Ltd Vs. Belex Tours and Travel Ltd (SCU).** That said, even if the ground of imminent threat of execution of costs of Misc. - 10 Cause No. 002 of 2024 had been pleaded, I would have found that the Applicant failed to prove that the Bill of costs has been taxed and demands made or that execution has been threatened so as to warrant a stay order. In any case, being required to pay 80% of the taxed costs of the concluded proceedings would not cause the Applicant substantial loss or irreparable - 15 damage pending his appeal. It would not also render the appeal nugatory. The Applicant has at any rate not shown that if he pays costs to be taxed the respondent would be incapable of restoring him to the status quo ante should the Applicant succeed on the appeal. This should be the primary concern of any court whose order or decree is sought to be stayed in a case - 20 involving payment of money. The present Motion does not seek a stay of payment of any money or taxed costs as per the pleading. The Court of Appeal of this country properly guided on a similar point in **DFCU Bank Ltd Vs. Dr. Ann Persis Nakate Lusejjere, Civil Application No.29 of 2003** when citing and commending to courts the persuasive wisdom of 25 Akuto- Ado, JSC, a former Chief Justice of Ghana, in **Joseph Vs. Jebeile (1963) 1 GLR 387.**

5 Similarly in **Kyambogo University Vs. Prof. Isiah Omolo Ndiege, Court of Appeal Application No. 341 of 2013** Kakuru, JA observed that:

**"In my view the law recognizes that not all orders or decrees appealed from have to be stayed pending appeal. It also recognizes a fact that**

10 **an appeal may be determined without having to grant a stay."**

I am bound by the above statements which eruditely captures the correct principle. It applies to the present matter with equal force especially since no clear case has been made regarding the need to stay execution of the 15 order of this court as to costs. The prayer, therefore, fails.

The Applicant's chief concern seems to gravitate around the notice of election of Dean Faculty of Law of the respondent. And I think that is the primary reason why the Applicant asks for an order of injunction and 20 prohibition. He seeks to stop the respondent from making him to relinquish or vacate his office of Dean Faculty of Law. The Applicant also asks for the status quo to be preserved until the dispute between the parties are resolved under the laws of Uganda. These prayers are anchored in the Applicant's interpretation of section 57 (5) of Cap 262. He contends 25 that even if he was dismissed on 1st February, 2024 he is deemed to have only been suspended pending the resolution of the dispute by the University Staff Tribunal, this Court, and the Court of Appeal.

The Applicant further argues that he would suffer substantial loss or irreparable injury if the orders he seeks are denied. He claims losing the position of Deanship in an undignified manner cannot be atoned for by award of damages. The Applicant insists he is still Senior Lecturer and

10 Dean Faculty of Law of the respondent. He thus asks court not to allow the respondent to outrun the court process by referring to the Applicant as "dismissed", "no-longer in employment", descriptions which are designed to extinguish the subject matter and render the pending appeal academic.

On his part, learned counsel for the respondent maintains that the application is moot, overtaken by the events and will serve no practical purpose, among others.

20 I have considered both arguments. I have not appreciated why the respondent believes that the Applicant's application is moot or has been overtaken by the events or fits within the other nomenclature used in the respondent's affidavit and submission. As far as court is concerned, the Applicant has a right to ask this court to stay its orders arising from a 25 decision which is on appeal to the next court. The power exists in section 98 of the CPA, and by dint of rule 42 of the Court of Appeal rules. The

respondent cannot, therefore, generally sweep the Applicant's application

5 and prayers under the mootness doctrine or the like concepts. Of course that does not mean that the Applicant has no duty of satisfying court as to the requisites of the orders he seeks.

As noted, the Application has been argued chiefly in a bid that this court

- 10 may restrain and/ or prohibit the respondent from filling the position of Dean Faculty of Law. That is why Mr. Muyanja strenuously urges that in spite of the Applicant's dismissal of 1st February 2024 the Applicant is deemed an employee of the respondent and should be treated as having only been suspended under section 57 (5) of Cap 262, and that his contract - 15 is still in force until 30th June, 2026.

Learned counsel claims the respondent has not in any case shown any legal steps taken to cease the applicant's tenure as Dean Faculty of Law. He also references section 57 (3) of Cap 262 to buttress his point. He 20 contends that the Applicant is deemed suspended until the legal processes are fully exhausted. With due respect, first of all, counsel's reliance on subsection (3) of section 57 Cap 262 is wrong. That provision is worded differently from what learned counsel quotes in his submission. It appears learned counsel meant to quote subsection (5) of section 57. This is 25 because sub-section (3) of section 57 deals with the right of a staff of the University who is affected by the decision of the University Staff Tribunal to apply to the High Court for judicial review. The staff has to do so within - 5 30 days on notification of the Staff Tribunal decision. In the matter at hand, there is no application for judicial review pending before this court within the purview of section 57 (3) of the Act. Thus having lodged none, the Applicant cannot invoke the provision of section 57 (3) of Cap 262. - 10 Secondly, sub section (5) of section 57 Cap 262 which is the correct provision states:

**"Where a member of staff has been removed from office or employment by the Appointments Board the member of staff shall be** 15 **deemed to be suspended until the expiry of the period allowed for appeal, at which date the removal shall become effective, or, where an appeal has been lodged in time, the suspension shall remain in force until the University Staff Tribunal or the court determines the Appeal."**

In my opinion, section 57 (5) of Cap 262 only aids a person who has engaged the appeal process set out under section 57 (1) to (4) of the Act. That is, an appeal against the decision of the University Appointments Board. Section 57 (1) thus provides for the right of a member of the 25 University staff to appeal to the University Staff Tribunal against a decision of the Appointment's Board within 14 days after he/she is notified of the decision. S.57 (2) obligates the Tribunal to, within 45 days, confirm, vary,

- 5 amend, or set aside the decision appealed against or give such decision as it thinks appropriate. While section 57 (3) accords the staff a right, if aggrieved with the Tribunal decision, to apply to the High Court for judicial review within 30 days from the date he/she is notified of the decision of the Tribunal. And section 57 (4) gives the High Court powers to make such - 10 orders (in judicial review) as it may consider just.

In this case, the Applicant argues that he appealed his dismissal to the Staff Tribunal. He relies on A9 which is a copy of the Appeal. It was stamped as having been duly received at Gulu University Central registry

- 15 on 15 February, 2024. To begin with, this revelation is surprising and novel to court. The fact that an appeal was lodged with the Staff Tribunal was concealed from this court when the Applicant filed and prosecuted his judicial review application vide Misc. Cause No. 002 of 2024. Court now realizes that the Motion in Judicial Review was lodged on 15th February - 20 2024 the very day the Applicant filed the appeal with the Staff Tribunal. This court proceeded to hold in Misc. Cause No. 002/2024 that the Applicant ought to have first exhausted the internal appeal mechanism under section 57 (1) of Cap 262 and only apply for judicial review if dissatisfied with the Staff Tribunal decision under section 57 (3). That was 25 the basis upon which Misc. Cause No. 002 of 2024 was dismissed by this - court. That decision still holds notwithstanding the Applicant's current disclosure. The decision is now on appeal to the next court vide Civil

- 5 Appeal No. 707 of 2024. Meanwhile in the appeal to the Staff Tribunal, I note that the Applicant indicated in para 3 that he had lodged Misc. Cause No. 002 of 2024 in this court. He then asked the Tribunal not to hear the appeal but reschedule it since he had also sought for judicial review. In as far as the instant matter is concerned and as is relevant, in hindsight, I - 10 can only state that, by engaging the Staff Tribunal and the court processes concurrently, the Applicant did not properly invoke the internal appeal process because he purported to place the cart before the horse. He never waited for the Tribunal to first hear and determine the matter under section 57 (2) of Cap 262 before applying for judicial review. He thus acted - 15 in flagrant disregard of the letter and spirit of section 57 of Cap 262, and rule 7A (1) (b) of the Judicial Review Rules (as Amended) by S. I No. 32 of 2019. His conduct was in utter abuse of the legal process. In my view he sought to use two distinct processes for improper purpose. He wanted to take benefit of section 57 (5) of Cap 262 as is now apparent and at the 20 same time benefit from the judicial review process. The decisions on what constitutes abuse of court process are in plenty. See: **Hon. Gerald Kafureeka Karuhanga & Kiiza Eron Vs. The AG and 2 Others, Misc. Cause No. 060 of 2015; Black's Law Dictionary (6th Ed.); AG & another Vs. James Mark Kamoga & another, Civil Appeal No. 8 of 2004 (SCU).** - 25 In the circumstances, I would hold that the provision of section 57 (5) of Cap 262 which deems a staff member who has been removed from employment (dismissed/ terminated) to have been suspended, do not avail

- 5 to the Applicant. The purpose of section 57 (5) of Cap 262 is to preserve the right of a staff who has properly engaged the Staff Tribunal process laid out in section 57 (1). Such a staff enjoys the status of being suspended for the period the Tribunal is to render itself on a matter. He/she also continues to enjoy the status throughout the period he/she would be - 10 engaging the High Court in judicial review following an adverse decision of the Staff Tribunal. In the instant case, none of these parameters have been demonstrated by the Applicant. Having been dismissed and given that section 57 (5) of Cap 262 is not available on the facts, the status quo obtaining which the Applicant asks this court to preserve is that he is out - 15 of the job. The Applicant's Deanship was predicated on his being a fulltime academic staff of the Faculty of Law under section 53 of Cap 262. Following the dismissal of 1st February, 2024 he cannot insist to be a Senior Lecturer and Dean Faculty of Law. In **Makerere University Vs. Omubejja Namusisi Farida Naluwembe Namirembe Bwanga, Misc.** - 20 **Application No. 658 of 2013**, it was observed that status quo denotes the state of affairs existing before a particular point in time.

Accordingly, the prayers for injunction to restrain the respondent from expelling or in any manner causing the Applicant to relinquish or vacate 25 the office of Dean Faculty of Law is based on a wrong notion and is at best, politely speaking, to engage in legal gymnastics. To accede to such prayers on the present facts would be to kill the Applicant with kindness which a


- 5 court should not do. Moreover, the injunction being sought is not intended to suspend any known execution of the order of this court. Similarly, the prayer of prohibition is not available as this court is not sitting in judicial review. This court cannot thus purport to stop the respondent from filling the position of Dean Faculty of Law which section 53 of Cap 262 permits. - 10 By so proceeding to fill the position, this court does not think the respondent is moving to execute the orders of this court or to frustrate any pending appeal. On the contrary she is executing its statutory mandate under section 53 of Cap 262. Having lost his job, court cannot purport to make orders that would have the effect of having the Applicant back into - 15 office without the substantive determination in a proper proceedings the merits of the respondent's decision dismissing the Applicant. This court cannot stop the filling of the vacant position.

In the circumstances, court finds no basis for the claim of irreparable 20 injury or substantial loss. The claim that the pending appeal in the Court of Appeal would be rendered nugatory if the prayers are denied, with respect, has not been made out given the status quo. See: **Lawrence Musiitwa Kyazze Vs. Eunice Busingye (supra)**; **Akankwasa Damian Vs. Uganda, Constitutional Application No. 7 and 9 of 2011**; **Theodore** 25 **Ssekikubo & 3 others Vs. Attorney General & 4 Others, SC Const. Appl. No. 6 of 2013; Gashumba Maniraghua Vs. Sam Ndukiye, SC Civil Appl. No. 24 of 2015; Wilson Vs. Church (No. 2) (1879) 12 Ch. D. 458**

- 5 (per Cotton L. J.); **National Housing & Construction Corporation Vs. Kampala District Land Board & another, Civil Application No.6 of 2002**; **Somali Democratic Republic Vs. Anoop S. Sunderlal Trean, Civil Application No. 11 of 1988 (SCU).** - 10 In closing, I am of the settled mind that the applicant has failed to make a case for grant of the reliefs he seeks. I am left with no choice but to dismiss Miscellaneous Application No. 50 of 2024 with costs which shall be paid by the Applicant to the respondent. - 15 It is so ordered.

Delivered, dated and signed this 25th November 2024

**George Okello** 20 **JUDGE**

Ruling read in court

**25th November, 2024**

**12:16pm**

## **Attendance**

Ms. Among Veronica, official of the Respondent in court. Advocate for the Respondent absent. Applicant absent.

15 Advocate for the Applicant absent. Mr. Ochan Stephen, Court Clerk

20 **George Okello JUDGE**