[2010] UGCA 59

### THE REPUBLIC OF UGANDA

### IN THE CONSTITUTIONAL COURT OF UGANDA, AT KAMPALA

### HON. JUSTICE M. S. ARACH-AMOKO, JA (SINGLE JUDGE) CORAM: **MISCELLANEOUS APPLICATION NO. 46 OF 2010**

## HON. ANIFA BANGIRANA KAWOOYA:::::::::::::::::::::::::::::::::: **VERSUS**

ATTORNEY GENERAL

# 2. NATIONAL COUNCIL FOR HIGHER EDUCATION:::RESPONDENT [Arising out of Miscellaneous Application No. 42 of 2010 and *Constitutional Petition No. 42 of 2010]*

### **RULING**

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The applicant, Hon. Anifa Bangirana Kawooya, has filed in this Court 15 a petition under Article 137(3) of the Constitution. In the petition she alleges inter alia, that the act of the National Council For Higher Education "NCHE" of recalling the Certificate of equivalence issued to her on December 8^th, 2005 for further investigations by a letter dated 25^th August, 2010 is inconsistent with and or is in 20 contravention of Articles 28(1), 42, and 44 of the Constitution, namely, the right to a fair hearing and fair treatment in administrative decisions and is therefore null and void. She prays for:

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- "a) A declaration that the recalling and cancellation of the *Petitioner's Certificate of equivalence issued by the National* Council For Higher Education on December 08,2005, was inconsistent with and or in contravention of Article 28(1), 42, and 44 of the Constitution which guarantee her a right to just and fair treatment in administrative decisions is thus null and void. - A permanent injunction against the National Council for $\boldsymbol{b}$ ) Education restraining it from recalling and/ or Hiaher cancelling the Certificate of equivalence issued to your Petition and December 08, 05, or any other such order or act.(sic). - $c)$ A declaration that all matters concerning the academic qualifications of the Petition (sic) in so far as they relate to elections and her academic competence to stand for elective *office are res judicata.* - Costs of the suit." $d$ )

The petition was filed on the 25^th October, 2010 along with an application for a temporary injunction and the instant application which initially sought for three orders, but after Mr Kenneth Kakuru, Learned Counsel for the Applicant abandoned No. 2 during his submissions, the application now seeks for orders:

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- '7) An interim order be issued restraining the Nationol Council for Higher Educotion from enforcing the directive contained in its letter to the oppticant dated 25th August 2070 dnd from issuing any such other directive against the applicant until the Petition herein is held (sic) and determined. - 2) Thot costs be provided for."

The grounds of the application are briefly as follows:

- "o) That the opplicant is oggrieved by the directive mode by the National Council For Higher Education contained in the letter to her doted 25th August, 2070. - b) That the opplicont contends the directive wos mode without giving her o heoring ond as such is in controvention of Articles 28, 42 ond 44 of the Constitution ond is to that extent null ond void. - c) Thot the applicant has filed a Petition in this Honourable Court chollenging the constitutionality oJ the soid act by the Notionol Council for Higher Educotion and the motter is pending in this honourable court ond also filed on application for stoy of the order ond directions of the Nationol Council for Higher Educotion until the Petition is heard ond determined both of which are pending is (sic) in this Honourable Court. 15

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- That if this order is not granted and the directive is enforced $d)$ the applicant shall suffer irreparable loss and damage. - That if this application is not granted the main application $c)$ and the Petition shall be rendered nugatory. - That the respondents will not in any way be prejudiced by the $d)$ grant of the orders sought herein."

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Further grounds of the application are set out in the affidavit of Hon. Anifa Bangirana Kawooya; the Applicant sworn on the 25^th October, 2010 and filed with the application.

The Petition was filed as a result of a letter dated 25^th August, 2010 10 by the NHCE recalling the Applicant's Certificate of equivalence issued to her in 2005 for further investigations.

The Respondents opposed the application and filed the affidavits by Martin Mwambutstya, a State Attorney and Professor Abdu B. Kasozi the Executive Director of the NHCE.

An interim injunction is a discretionary order issued by Court for a short time, and usually to a particular date pending determination of the main application. The conditions for the grant are basically the same with the ones pertaining to applications for temporary For instance, in Miscellaneous Application No. 18 of injunction. 2007, Hon. Jim Muwhezi Vs The Attorney General and IGG (un

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reported), Justice Twinomujuni had this to say in a similar application at page 9 of his Ruling:-

"However the main considerotions Ior gronting this applicotion ore the same os those for gronting or reiecting the moin opplication, nomely:-

- (o)That the court has jurisdiction to gront or not to gront the order sought for. - (b)Thot the suit from which the opplication orises discloses triable issues ond is not frivolous and/or vexatious. - (c)That foilure to gront the opplication would render the disputed matter nugotory in o mdnner that cannot be redressed through an oward of damoges."

ln case of doubt, the Court should decide the application on the balance of convenience. [See: Giella v Cassman Brown and Company Ltd [1973] EA 3s8.

Further, an injunction being an equitable remedy, cannot be granted to a party who has demonstrated openly by his or her conduct that he or she is undeserving of the equitable relief. The maxim that ^a person who relies on equity must come to court with clean hands is an important maxim of equity. The courts will always deny the applicant an interlocutory injunction if the applicant comes to court

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with dirty hands. (See: Moody v Cox & Another [1916 - 17] All ER. Rep C. A 548)

The issue of jurisdiction can be disposed of by reproducing Article 137 (3) and (4) of the Constitution which provides that: $\frac{1}{2}$

$(3)$ A person who alleges that- $\mathsf{S}$

- $(a)$ ------- - any act or omission by any person or authority, $(b)$

Is inconsistent with or in contravention of a provision of this Constitution, may petition the constitutional court for a declaration to that effect, for a redress where appropriate.

- *Where upon determination of the petition under clause (3) of* $(4)$ this article the Constitutional Court considers that there is need for redress in addition to the declaration sought, the **Constitutional Court may-** - $(a)$ grant an order of redress; or - *refer the matter to the High Court to investigate and* $(b)$ determine the appropriate redress."

Rule (3) of the Constitutional Court (Petitions and References Rules S.1 No. 91 of 2005) provides:-

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- A Petition under article 137 (3) shall be in the form $S.3$ $(1)$ specified in the schedule to these rules. - **The Petition shall allege-** $(2)$ - that an Act of Parliament or any other law or $(a)$ anything in or done under the authority of any law is inconsistent with or in contravention of a provision of the Constitution; or - $(b)$ That any act or omission by any person or *authority is inconsistent with or in contravention of* a provision of the Constitution; - The Petition shall be divided into paragraphs numbered $(3)$ consecutively, each of which shall be confined, as nearly as may be, to a distinct inconsistency or contravention complained of. - no costs shall be allowed for the drawing or copying of $(4)$ any petition not substantially in compliance with this *rule, unless the Court otherwise orders."*

The petitioner fits squarely in the above provision on account of the allegations she has made against the NCHE and the declarations sought therein. This Court made a similar ruling in **Constitutional** Petition No. 3 of 2008 Goodman Agencies Vs Attorney General (un reported). The answer to the objection raised by Mr Edmund Wakida

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is therefore that this court has the jurisdiction to entertain the matter.

The main purpose of the interim injunction is to restrain the NCHE from cancelling the Certificate of urgency issued to the applicant in 2005. The applicant deponed in her affidavit in support:

- That I have already been declared winner of the NRM $"9.$ primary election for Sembabule woman Member of Parliament and as such am the flag bearer, that if I am not nominated for National elections on account of the decision of the National Council For Higher Education now being contested in this Honourable Court before the petition is heard and determined I shall suffer *irreparable loss and damage in terms of money, political* career and reputation. - *That it is therefore just and equitable that this 10.* Honourable Court be pleased to grant this orders *sought in this application."*

The 2^nd Respondent's Executive Director, Professor Abud B. Kasozi has responded as follows in his affidavit in reply:

$"7.$ That in response to paragraph 9 of Hon. Kawooya's affidavit, I am informed by my aforesaid advocates, which information I verily believe to be true that on

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the 3/9/2010 the High Court in Egwali Rashid vs NRM *Misc. Cause No. 403/2010, issued an interim order restraining the NRM from conducting primaries for* Sembabule District Woman MP wherein Hon. Kawooya was a candidate, which was nevertheless violated. (See Annexture C)."

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Annexture C is a copy of an interim order issued by Hon. Mr. Justice Yorokamu Bamwine on the 3^rd September, 2010 where he ordered that:

- $"1.$ An Interim Order do issue restraining the Respondent and its electoral commission from conducting primary *elections for Sembabule District Member of Parliament* wherein Hanifa Bangirana Kawooya is a candidate until the main application herein is disposed of. - 2. An interim Order do issue restraining the Respondent 15 and its electoral commission from approving the nomination of Anifa Kawooya as a candidate in the NRM Party Primary elections slated to take place on the 4^th day of September, 2010." - It is apparent from the applicant's affidavit particularly paragraph 9 20 reproduced above, that the applicant did offer herself and got. nominated as the NRM flag bearer for the seat of Sembabule District

Woman Member of Parliament, in complete disobedience of the above interim order. That order was not set aside, at least there is no evidence on record to that effect. This indicates that The NRM disobeyed that order with the active participation of the applicant who must have had constructive if not actual notice of the order. The nomination was therefore illegal and it is a Cardinal Principle that a Court should not condone an illegality once it has been brought to Court's attention. That being the case, it can safely be concluded that the applicant is the sort of person who does not respect court orders especially those against her. In those circumstances, the Court finds that the Applicant has not come to this court with clean hands, and does not deserve an equitable remedy from this court. As I said earlier on, an injunction being an equitable remedy, the party seeking it must come to court with clean hands. Any one whose conduct has been improper in any relevant way in some transaction who wants relief in equity will be refused the remedy. (See EQUITABLE REMEDIES BY SPRY 4^th Edition pages 484 – 490).

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In conclusion, and for the reasons I have given, I see no need to go into the rest of the conditions for the grant of interim injunctions. They will be dealt with in the main application. I accordingly dismiss this application with costs to the Respondents.

Dated at Kampala this 05^th day of November, 2010

## HON. M. S ARACH-AMOKO

## **JUSTICE OF APPEAL**

Ruling delivered in the presence of:

1. Edmund Wakida for the 2^nd Respondent.

2. Gerald Batanda S. A for 1^st Respondent.

3. The Applicant.

4. Ms. Nandudu Eseeri - Court Clerk.

Absent: Mr. Kakuru Counsel for the Applicant.

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HON. M. S ARACH-AMOKO

**JUSTICE OF APPEAL**

5/11/2010