[2011] UGCC 16

Kasibayo Kosia . K.<br>LLB (Hons) MUK DIP. LP LDC<br>ADVOCATE P. O. Box 22424, Kampala<br>Email: kanteraine@yanoo.com

## THE REPUBLIC OF UGANDA

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

**CONSTITUTIONAL APPLICATION NO. 55 OF 2010**

[Arising from Constitutional Application No.54 of 2010]

[Arising from Constitutional Petition No. 46 of 2010]

#### **BETWEEN**

IMANIRAGUHA JOHN:::::::::APPLICANT/PETITIONER

#### AND

1. ATTORNEY GENERAL

2. KARANGWA JACKLINE

1::RESPONDENTS

#### 3. MAJOR GENERAL KALE KAYIHURA

[Under Article 28(1), 50(1) and (2), 126 and 137 of the Constitution of the Republic of Uganda, 1995; Section 98 of the Civil Procedure Act, Cap. 71; Rules 10 and 23 of the Constitutional Court (Petitions and References) Rules S.1.91 of 2005; Rules 2(2), 6 2(b) and 43 of the Judicature (Court of Appeal Rules) Direction S.1. 13-10 and all enabling laws

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### RULING OF S. B. K KAVUMA

#### Introduction

This application is brought by the applicant/petitioner arising from Constitutional Petition No.46 of 2010 and Constitution Application No. 54 of 2010.

applicant / petitioner seeks interim orders that:

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An interim order doth issue barring the 3'd ondent and/ or his subordinates, representative, kmen and/or agents from implementing their ats of apprehending the applicant/petitioner / or in any way interfering with his liberty and from passing on his property or interfering with his quiet ession thereof till the determination of the main ication for a temporary Injunction or until further rs of this honourable Court.

- An interim order doth issue against the respondents, their officials, agents and/or representatives restraining them from further nterfering with the applicant's privacy, liberty and ronr Prosecuting or arresting him until the isposal of the main application for a temporary njunction and stay of proceedings by this onourable Court or until further orders of this onourable Court. - n interim order doth issue against the spondents barring them, their agents, employees ²⁵ c)

atd,/or representatives from entering uPon the applicants commercial buildings comprised in Plot 6 York Terrace Kololo and from in any way interfering with the civil and other works thereon until the disposal of the main application for ^a temporary injunction or until further orders of this honourable Court.

d)An interim order of custody be issued directing that the applicant's three children namely Joshua Gatete Imaniraguha, aged 5 years, Imaniraguha Johson aged,4 years, and Tonny Gatete Imanirguha aged.7 years be returned to his residence for his custody, upkeep, education and the provision of other necessities until the disposal of the main application for a temporary injunction by this honourable Court or until such other or further orders of this honourable Court.

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An interim order doth issue staying proceedings in Nakawa Chief Magistrate's Court in Criminal case No. NAK-CO-678|2OLO and Nakawa High Court

Civil No. NAK-F. C-L4A-2OLO and Miscellaneous Application No. 226 of 2OLO pending the determination of the main application or until other or further orders of this honourable Court. Costs of the Application be provided for.

application is brought by way of Notice of Motion r the legal provisions quoted above and is supported e affidavit in support of the applicant/petitioner sworn him on l8th the 2O7O day of October and his affidavit oinder sworn to on the 2"d November 2OIO. e h 10

# nds of the application.

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application is based on grounds stated in the Notice of on and in the applicant/petitioners affidavits on record ally, complaining of threatened unconstitutional t and prosecution, abuse of his liberty, of rmining court orders and authority, harassment and ion of his parental rights, his right to privacy and his to a fair hearing, among others, by the respondents eir agents.

pplication is respondents who, rn vits in reply rejoinder, deny the opposed by the and others in 25

pplicant/petitioner's allegations and averments' Counter ccusations against the applicant/petitioner are also made those affidavits. The 1"t and 3'd respondents also ntend that whatever complained of in the application as eing done by the Police by the force in pursuance of its ty to preserve life and property and law and order.

## epresentation.

the hearing of the application, Dr. James Akampumuza unsel for the applicant/petitioner) represented the plicant/petitioner. Mr. Henry Oluka, Principal State torney, (counsel for the 1"t and 3.d respondents), resented them. Mr. Edgar Tabaro, appearing together h Mr. Arthur Mwebesa, (counsel for the 2"d respondent) resented the 2"d respondent.

# e Applicants Submissions

i.rg the case for the applicant/petitioner, Dr. mpumuza read and relied on the alfidavits of the licant/petitioler. He contended that the licant/petitioner's human rights, including his rights as arent of his children, Joshua Gatete Imaniraguha, niraguha Johson and Tonny Gatete Imanirguha, his a

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ights to his property, his privacy and the right to a fair earing have been and continue to be violated by the spondents and their agents. He submitted, further, that nless restrain, the respondents and their agents shall ntinue violating the applicant/petitioner's rights and his ain application for a temporary injunction, Constitutional plication No. 54 of 2O10 and his Constitutiona-l Petition 46 of 2OtO would be rendered nugatory arrd he would ffer irreparable damage. He prayed court to grant him interim orders sought with costs.

#### e l"t and 3'd respondent's submissions 15

e gist in counsel for the 1"t and 3.d respondent's missions, which he based on the respondents'affidavits record was a total denial of the accusations in the adings and submissions of the applicant/petitioner. He objected to a single Justice of this Court considering determining the application for, according to him, lack urisdiction. Counsel contended that his clients are ng properly and within the law. He contended, further, any erosion of the applicant's rights that might have rrcd was justifiable. of

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e submitted that the application lacked any merit and rayed Court to dismiss the same with costs.

## he 2"d respondents submissions

ounsel for the 2"d respondent fully associated themselves ith the submissions of counsel for the 1"t and 3'd spondents.

addition, counsel, submitted that the application before ourt arose from a background of longstanding incidents of mestic violence whose full impact could only be preciated by the 2"d respondent.

unsel contended that due to the young ages of the ildren affected in this matter they should better be in the stody of the 2"d respondent.

prayed for the dismissal of the application with costs.

# urts consideration of the application.

considering and determining this application, I find it ropriate to resolve the following issues. 20

i) Whether the court has jurisdiction to hear and determine the appllcation.

- (ii) Whether the Interim Orders sought would be granted. - (iii) What remedies, if anY, are available to the parties or any of them. - (iv) Who bears the costs for the application.

# esolution of the Issues:

sue (i)

he gist in this issue is whether a single justice of the ourt of Appeal/Constitutional Court has jurisdiction to tertain and determine this application, it being ^a nstitutional application for interim orders pending the termination of the main constitutional application for a mporary injunction and stay of proceedings and the nstitutional petition giving rise to the instant application.

ad occasion to address the question in issue in RO/ 133 Gen. James Kazini vs the Attorney General, nstitutional Application No. 04 of 2OO9, where I held a single justice of this Court has jurisdiction to ertain and determine a constitutional application for erirn orders, like the one now before Court. For some t I

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me, there had existed two somewhat divergent schools of ought on the question. One school of thought contended at a single justice of this Court had no jurisdiction in ch a case while the other held that such a justice had e required jurisdiction to handle constitutional plications for interim orders. See Misc. Application . OO1 of 2OO7, James Isabirye vs Attorney General d Another and Constitutional Application No. 26 of 10 Olara Otunu Vs Attorney General.

wever, the matter was resolved in Constitutional plication No. 38 of 2OlO, George Owor vs The orney General and Hon. William Oketcho where the urt held;

"We have now carefully considered our decisions in the Isabirye case and OLARA OTUNNU case in light of section 13 of the Judicature Act. The rationale behind the decision in Isabirye was the provisions of Rule 53(1) and 2(b) of the Judicature (Court of Appeal Rules) Directions which prohibits single justice from hearing

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applications for a stay of execution, injunction or stay of proceedings. In our view, to the extent that Rule 53(1) and 2lbl refer to temporary applications for execution, injunction or stay of proceedings, and NOT INTERIM ORDERS, then the decision in Isabirye is correct to that extent only. However, Rule 53(1) and z(bl appears to conflict with section 13(1) of the Judicature Act which gives a single justice power to exercise the powers of the Court in interlocutory matters. We agree with the holding of this court in Olara Otunnu (supra) where the single justice after considering the holding in Isabirye stated:

'it is tr'ue thqt since Febntary 2OO8, the procedure mentioned in the aboue extract has not been uniformlg apptied in this Court. There q.re mang instances where a single

in cases inuoluing Others, Dr. Rtd Conel Kizza Besique and Others and General Kq.zini, ln uthich a slngle justice of this court entertained sirnilar applications and granted reliefs and the Attorneg General did not appeal. There are also situations uthere onlg three justices haue entertained main applications for stag of execution or proceedings instead of Jiue as stated in Isabirae judg ernent.' (sic) justice has entertained interim apptications -for stag of executions or proceedings. In rtang oJ those cases, the orders sought were granted and the Attorneg General has neuer sought to appeal against the order. I can cite exarnples of such applications arising frorn Constitutional high proJile applications like Hon. Jim Muhutezi and

agreement with the judicial pronouncements in those es, I find in the affirmative with regard to this issue. Court has jurisdiction to entertain and determine this lication. In

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## Issue (ii)

The gist of issue (ii) is whether the interim orders sought by the applicant would be granted. Maria $rac{c}{c}$ the con The principles for granting temporary injunctions by courts of law are well settled although they have been expressed in various terms over time.

- 1. For a temporary injunction to issue the court must be satisfied that the applicant has a primafacie case with *a probability of success.* - 2. An interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages. - 3. If the court is in doubt on any of the above two $-20$ principles, it will decide the application on the balance of convenience.

See Geilla vs Cassman Borown and Co. Ltd [1973] EA. 358; Noor Mohammed Kassamali VIRJI Vs Madhani [1953] 20 EACA 80, Robert Kavuma vs M/S Hotel

ternational, SCCA namid V Ethicon rdDiplock. No. L9 of L99O, See Il97sl ALL ER 5O4 at Arnerican 51O Per I L

esc same rl ¹ toa lications for interim ers. o T

s however, no part of the court's function at this stage of ation to try to resolve conflicts of evidence on aflidavit to facts or on which the claims of either party may mately depend nor to decide difficult questions of law ch call for detailed arguments and mature siderations. These are matters to be dealt with at the I of the main petition. See American Cynamid V icon lL975l ALL ER 5O4 at 510 Per LordDiplock. 10

regard to the first principle, whether there is here a afacie case with a probability of success, the court t be satisfied that the claim is not frivolous or tious, that there is a serious question to be tried. See rican Cynarnid v Elhieon (supra)

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instant application, the applicant/petitioner has in his Notice of Motion and the affidavits in support other things, that there are certain acts of the e C' t> atc t o

iolation of which, inter alia, the applicant/petitioner mplains of, is one of the four underogable rights and eedoms under Article aa @l of the Constitution. Article 8 (i) is, therefore, sacrosanct. It's violation, if proved, nnot be adequately compensated with any amount of mages. See Hon. Jim Muhwezi vs Attorney General d the Inspector General of Government, iscellaneous Application No. 18 of 2OO7. This inciple, too, in my judgement, has been satisfied by the plicant/ petitioner.

to the balance of convenience, I must say I have no ubt about any of the above two principles being in favour the applicant/petitioner. But even if I had any doubt, balance of convenience in the instant application uld, in my view, weigh in favour of the licant/petitioner. The state, at the end of the disposal the main application by this Court, and if need be, of stitutional Petition No. 46 of 2010 now pending before rt, would, with ease, be able to continue with whatever ceedings they may have to continue with against the licant/petitioner depending on the outcome of the eedings in those two suits. 2Q of 25

- S nsel for the respondents questioned the suitability of Court in granting an interim order in custody of the e children affected in this application as matters of ody are, according to him, the preserve of the ildren's Court. e t - m not persuaded by this argument. 10 I

^ejurisdiction of this Court as provided for under Article 7 l3l (b) and l4l (a) of the Constitution and in the icial pronouncements embodied in Owor vs The torney General and Hon. Okecho (supra) together with B of the Civil Procedure Act and rule 23 of the nstitutional Court (Petitions and References) Rules, 20Os sufficient authority empowering this Court to rcising its discretion to issue or not to grant interim ers of custody of children in appropriate cases.

llowing from all the above, therefore, my a.nswer to issue is too, in the affirmative.

## ue (iii)

ue (iii) concerns remedies. Following from my nsideration of and the conclusions reached in issues (i)

and (ii) above, I would grant remedies in the following terms:

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- a)An interim order doth issue barring the respondents or any of them and/or their subordinates, representative, workmen and,/ ot agents from implementing their threats of apprehending the applicant/petitioner and/or in any way interfering with his liberty and from trespassing on his property where ever it may be including the property on plot 6 York Terrace Kololo or in anyway interfering with his quiet possession thereof or with the civil and other works thereat titl the determination of the applicant/petitioner's main application for ^a temporary injunction and stay of proceedings and the petition or until further or other orders of this honourable Court. - )An interim order doth issue against the respondents or any of them, their officials, subordinates, agents and,/or representatives restraining them from further interfering with the

applicant's/petitioner's privacy, liberty and from arresting or prosecuting him until the disposal of his main application for a temporary injunction and stay of proceedings, and the Constitutional Petition by this honourable Court or until other or further orders of this honourable Court.

c)An interim order of custody doth issue directing that the custody of the three children narnely Joshua Gatete Imaniraguha, Imaniraguha Johson and Tonny Gatete Imaniraguha shall, in the interim, be and remain with the applicant/petitioner for their upkeep, education and for the provision of other necessities to them until the disposal of the applicants/petitioner's main application for a temporary injunction and stay of proceedings and his constitutional petition by this honourable Court.

)An interim order doth issue staying proceedings in Nakawa Chief Magistrate's Court in Criminal Case No. NAK-CO-678|2OLO and Nakawa High Court

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Civil No. NAK-F. C-148-2010 and Miscellaneous Application No. 226 of 2010 pending the determination of the applicant/petitioner's main application No 54 of 2010 and Constitutional Petition No. 46 of 2010 or until other or further orders of this Honourable Court.

e) The costs of this application to abide the outcome of the final determination and disposal of the substantive application for a temporary injunction and stay of proceedings.

I so Order.

S. B. K. Kavuma

Dated at Kanple....this................................

Justice of Appeal/Constitutional Court

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