[2012] UGCC 14

### **THE REPUBLIC OF UGANDA**

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

**MISCELLANEOUS APPLICATION NO.29 OF 2012**

$\mathsf{S}$ (Arising from Miscellaneous APPLICATION No.28 of 2012) (Arising from Constitutional Petition No.37 of 2012)

**JOHN IMANIRAGUHA................................... VERSUS**

- $10$ 1. THE COMMISSIONER GENERAL OF UGANDA **REVENUE AUTHORTY** - 2. THE ATTORNEY GENERAL OF THE REPUBLIC OF UGANDA...................................

$15$

(Under Rule 2(2) Rules 42 (2) of the Judicature (court of Appeal) Rules Order 52 Rules 1 and 3 of the Civil Procedure Rules, Section 98 of the Civil Procedure Act and all enabling law)

### **RULING OF S. B. K. KAVUMA, JA/CC** $20$

## **Introduction**

This is an application for an interim order of stay of Criminal Proceedings against the applicant/petitioner $25$

$\mathbf{1}$

at the Anti-Corruption Division of the High Court in Criminal Case No. ACC-CO 087of 2012. The application is brought by way of Notice of Motion and supported by the affidavit of the applicant is /petitioner sworn to on the $2^{nd}$ day of August 2012.

# **Background**

$\mathsf{S}$

The background to the application is that some time in 2007, criminal proceedings were preferred against the $10$ applicant/petitioner under charges which were, with time, withdrawn and re instated a number of times. On the 22^nd day of June 2012, the applicant/petitioner was, once again, charged, this time before the Anti-Corruption Division of the High Court under Case $15$ Number ACC-CO-087 of 2012. Criminal summons were issued and served on the applicant/petitioner who appeared in court on the $30^th$ day of July 2012. At the end of the somewhat controversial proceedings of that day, $20$ the court ordered that the applicant/petitioner be committed to the High Court. He was advised to apply for bail at the High Court. Later on the same day, it appears, the trial Magistrate

$\overline{2}$

issued a warrant of Commitment on Remand in respect of the applicant/petitioner. On the 6^th August 2012, a Warrant of Arrest was issued by the Registrar of the Anti Corruption Division of the High Court. The applicant/petitioner filed Constitutional Petition No. 37 of 2012 in court. He, thereafter, filed Miscellaneous Application No.28 of 2012 followed by a filing by him of the instant application.

### Grounds of the application $10$

The grounds of the application are stated briefly in the Notice of Motion and laid out in detail in the applicant's affidavit in support of the application. In that affidavit, the applicant averred, among other *things*, that:

• he is presently the subject of criminal proceedings in the Anti-Corruption Court vide Criminal Case No. ACC-CO 087-of 2012,

$20$

$15$

$\mathsf{S}$

• he has filed Constitutional Petition No.37 of 2012 challenging the said proceedings for being in violation of his rights and constitutional

$\overline{3}$

provisions particularly, **Articles 20(2), 28(1),** $28(9)$ , $44(c)$ , $126(1)$ , $128(1)$ , $128(2)$ and $128(3)$ and Articles $120(5)$ , $28(1)$ , $28(3)(b)$ and $126(1)$ of the Constitution.

Γú.

$\mathsf{S}$

$10$

$15$

- it is his contention in the petition that for the reasons pleaded therein the proceedings against him $\overline{in}$ the Anti-Corruption $\mathsf{Court}$ are unconstitutional and cannot afford him a fair hearing whatsoever, - verily believes that in the interests $\bullet \quad \text{he}$ $\mathsf{of}$ substantive justice he should be allowed to establish his constitutional rights and that the criminal proceedings complained of in his petition be stayed pending the determination of the petition, - unfairness and injustice is inherent in the invalidity of the indictment and the wanton $20$ disregard for criminal procedure which was raised by way of objection before the presiding magistrate but she declined to rule on the same,

$\overline{4}$

• the said Magistrate did inform all parties present at Court that she had arrived at her decision having consulted the Registrar of the High Court Anti- Corruption Division and the Judges therein,

$\mathsf{S}$

$10$

$15$

- on 1^st August 2012, the said Registrar did call his lawyers M/s Birungyi, Barata & Associates while he was in their presence and threatened to take harsh action against him and to write a damning report against his law lawyers, - is aware that the Prosecutor has he made attempts to obtain a warrant for his arrest and detention in a manner inconsistent with the provisions of the Magistrates' Courts Act and the Trial on Indictments Act as there has, in fact, been no court order to remand him to prison, - he has also filed a substantive application for stay $20$ of the proceedings which has yet to be heard and determined.

$\mathsf{S}$

• he verily believes that none of the respondents will be prejudiced or will suffer any injustice if the orders sought in the application are granted.

### Reply to the affidavit $\mathsf{S}$

The $1^{st}$ respondent filed an affidavit in reply sworn to by one, Namutebi Christa, a Legal Officer of the 1^st respondent on the 7^th day of August 2012. She averred, *among other things, that:*

- on the $30^th$ day of July 2012 when the applicant appeared before court, prosecution tendered an amended charge to reflect the amounts of the taxes unpaid, - $15$

$10$

$\overline{a}$ $\overline{a}$

- the trial Magistrate read the charges to the applicant to which he pleaded not guilty, - on the 30^th day of July the applicant was indicted and referred to the High Court Anti Corruption $20$ Division for trial,

- the applicant's counsel objected to the indictment but was overruled by the trial magistrate, - accordingly, the trial Magistrate proceeded to remand the applicant and informed him of his right to apply to the High Court for bail, - the applicant escaped from the court custody before he was handed over to prison and she knows that the High Court has since issued a warrant of arrest for the applicant to he apprehended and handed back to court $\overline{on}$ charges of escape from lawful custody and contempt of court, - $15$

$10$

$\mathsf{S}$

- the applicant still stands in disobedience and contempt of court orders issued under case number HCT-00-ACC-00-087/2012, - the petition has not disclosed triable issues, it is $20$ frivolous and vexatious, purposely brought to circumvent the criminal prosecution,

$\overline{7}$

- the applicant's rights and liberties have not been violated since he has an automatic right to apply for bail which right has been duly communicated to him. - the facts of Criminal Case No. ACC CO-087/2012 is whether or not the applicant paid tax on the said vehicles and the trial court is capable of fairly and accurately pronouncing itself on the matter without prejudice to the applicant, - the applicant has not demonstrated that refusal to grant this application will render the petition nugatory in a manner that cannot be redressed through an award of damages, - the applicant has disobeyed court orders, he is in contempt of court and has accordingly not come to this court with clean hands.

#### **Representation** $20$

$\mathsf{S}$

$10$

$15$

At the hearing of the application Mr. Macdosman Kabega, appearing with Mr. Enock Barata (hereinafter together referred to as counsel for the applicant

the applicant/petitioner. Mr. Kosia represented Kasibayo, a State Attorney from the Attorney Generals' Chambers represented the 2^nd respondent while Ms Mary K. Kutesa (hereinafter together with Kasibayo referred to as counsel for the respondents) represented the respondents.

### The case for the applicant

$\mathsf{S}$

Counsel for the applicant submitted that this court has powers to grant the orders sought by the $10$ applicant/petitioner and that it is necessary for court to invoke those powers and grant the interim orders sought. According to counsel, such orders would safeguard and protect the constitutionally guaranteed rights of the applicant/petitioner to, among other $15$ things, a fair hearing and to his liberty which are currently threatened. To counsel, the averments in the 1^st respondent's affidavit in reply, together with its annextures clearly show the oppressiveness of the criminal proceedings against the applicant/petitioner $20$ since $2007$ .

$\overline{9}$

They prayed court to grant the applicant the interim orders he seeks

### The case for the respondents

$\mathsf{S}$

$10$

$20$

Counsel for the respondents opposed the application. Counsel submitted that on the 30^th July 2012, a Warrant of Commitment on Remand was issued against the applicant/petitioner but that the he escaped from court before he was handed over to the Prisons authorities causing a warrant of arrest to be issued against him on the 6^th August 2012.

To Counsel, the petition filed into court did not disclose any triable issue and it was intended to circumvent the criminal proceedings preferred against $15$ the applicant/petitioner.

Counsel relied on Misc Application No. 18 of 2007 Jim Muhwezi vs Attorney General and Another which, they contended, was on all fours with the instant application.

Counsel wondered whether the applicant/petitioner could come to the Constitutional court before appearing before the High Court in accordance with

$10$

the court orders issued against him to enable it decided the matter at issue either for or against him.

Counsel cited the cases of **Hadkinson vs Hadkinson** 1952 ALL ER at page 569 and Anifa Kawooya vs Attorney General and Another, Constitutional

$\mathsf{S}$

Application No. 46 of 2010 contending that the applicant/petitioner did not come to court with cleans hands.

To counsel, the applicant/petitioner has not brought himself within the principles of granting the interim $10$ orders he seeks. They, therefore, prayed that court finds that this application is devoid of any merit and is only intended to abuse court process in the hope that the Constitutional Court would be used as a conduit to abuse the due process of the law. They prayed for a $15$ dismissal of the application with costs.

# Applicant/Petitioner's counsel in reply

Exercising their right of reply, counsel for the applicant/petitioner emphasized that at this stage all $20$ that the applicant/petitioner had to do was to show that there are serious matters pending before Court involving serious issues for Court's adjudication

which, according to them, the applicant/petitioner had done and which no amount of compensation in money terms can redress. Counsel emphasized that the applicant's case was not to challenge the provisions of the East African Community Customs Management Act, 2004 but the acts of the respondents as stated by the applicant/petitioner. They reiterated their earlier prayers.

#### Court's consideration of the application $10$

## The principles applicable.

$\mathsf{S}$

$20$

The principles for granting temporary injunctions by courts of law are well settled.

- 1. For a temporary injunction to issue the court must $15$ 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 principles, it will decide the application on the *balance of convenience.* - See Geilla vs Cassman Borown and Co. Ltd [1973] $\mathsf{S}$ EA. 358; Noor Mohammed Kassamali VIRJI Vs Madhani [1953] 20 EACA 80, Robert Kavuma vs M/S Hotel International, SCCA No. 19 of 1990, See American Cynamid V Ethicon [1975] ALL ER 504 at - 510 Per LordDiplock. $10$

These same principles apply to applications for interim orders.

### Duty of court

It is no part of the court's function at this stage of $15$ litigation to try to resolve conflicts of evidence on affidavit as to facts or on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed arguments and mature considerations. These are matters to be dealt $20$ with at the trial of the main petition. See American Cynamid V Ethicon [1975] ALL ER 504 at 510 Per LordDiplock.

**Court's Jurisdiction**

Article 137 3(b) of the Constitution, S.98 of the Civil $\mathsf{S}$ Procedure Act, Rule 23 of the Constitutional Court (Petitions and Reference Rules, S.1.91 of 2005 and Rule 2 (2) of the Judicature (Court of Appeal Rules) Directions confer jurisdiction to the court to entertain and determine the instant application. $10$

## Resolution of the principles applicable

With regard to the first principle of granting the applicant the order he seeks, whether there is here a primafacie case with a probability of success, the court $15$ must be satisfied that the claim is not frivolous or vexatious, that there is a serious question to be tried. See **American Cynamid v Elhieon** (supra)

In the instant case, the applicant/petitioner has $20$ clearly pointed out the acts he challenges are being respondents against him the taken bv unconstitutionally. He contends that among the rights

being violated by the respondents are his right to a fair hearing as provided for in **Article 28(1)** of the Constitution and entrenched as an absolute right, an underogable right, under **Article 44 (C)** of the Constitution. Another of his rights being violated or $\mathsf{S}$ threatened, according to him, is his right to liberty. This is another fundamental human right among those that are inherent and God given under Chapter 4 of the Constitution. He further challenges the conduct of the Judicial Officer who presided over the court $10$ proceedings of the $30^th$ July 2012 as having contravened the all important principle of the independence of the Judiciary, especially that part which relates to her independence as a Judicial Officer.

On a careful consideration of the pleadings and all the evidence on record, the law applicable and the authorities cited to court, I am satisfied that the case made out by the applicant/petitioner involves serious issues for courts adjudication. $20$ They are neither vexatious nor frivolous. I, therefore, find that the applicant/petitioner has brought himself squarely within the ambit of the $1^{st}$ principle stipulated above.

$15$

$15$

The applicant/petitioner has, to my satisfaction, established a primafacied case with a probability of success.

As to whether the applicant/petitioner has shown that he may suffer irreparable injury or damage as required $\mathsf{S}$ under the second principle above, the right to a fair of which. hearing. violation inter alia. the applicant/petitioner complains of, is one of the four underogable rights and freedoms under **Article 44 (c)** of the Constitution. Article 28 (1) is, therefore, $10$ violation, if proved, cannot sacrosanct. It's be adequately compensated with any amount of damages. See Hon. Jim Muhwezi vs Attorney General and the Inspector General of Government, Miscellaneous Application $N_{\text{o}}$ . $\mathbf{18}$ $\mathbf{of}$ $2007.$ $15$ $On$ careful $\overline{a}$

consideration of all the material before me this principle, too, in my judgement, has been satisfied by the applicant/petitioner.

As to the balance of convenience, I must say I have no doubt about any of the above two principles being in $20$ favour of the applicant/petitioner. But even if I had had any such doubt, the balance of convenience in the instant application would, in my view, weigh in favour

$16$ of the applicant/petitioner. The state, at the end of the disposal of the main application by this Court, and if need be, of Constitutional Petition No. 37 of 2012 now pending before Court, would, with ease, be able to continue with whatever proceedings they may have to applicant/petitioner against the with continue depending on the outcome of the proceedings in those two suits. This principle too is, therefore, found to have been satisfied by the applicant.

$\overline{5}$

Counsel for the respondents raised the question of $10$ whether this court could grant the interim orders sought by the applicant/petitioner in view of what counsel contended as the applicant/petitioner being in contempt of court orders issued by the Anti Corruption Court Division of the High Court on the 30^th July 2012 $15$ and on the $6^{th}$ August 2012.

have given my careful consideration to the $\mathbf{I} =$ respondents said concern.

It is true, as a general rule, a court of law would not readily entertain and hear a party who is in $20$ disobedience of a court order but this is not an absolute rule of law. Where the ends of justice require, in my view, such a party may be heard by

court for instance in defence of his constitutional rights or where such a party protests irregularity of the court order in issue or the process leading to it. A constitutional matter once raised must be resolved by the Constitutional Court and it takes precedence over $\mathsf{S}$ other matter. Further, a court of law being the fountain, custodian and the guarantor of justice should never, itself, become an instrument of injustice. I am fortified in this view by the several cases reviewed by Court in Home 167-U. S Hovey Eliot 17 S. Ct. 841, $10$ like Cooker De **215,** notably cases $\mathbf{L}.\mathbf{ED}$ $\mathbf{42}$ Montmorency, I Hogan, 181 where it was held, inter alia, that though a party was in contempt, he might, not withstanding, be heard upon matters of right and to a stay of process in the meantime. $15$

Howard vs Neman 1 Moll 221 where in 1822 the Hon. Lord Chancellor expounded the principle thus:

"A party in contempt is not to be heard until his contempt is cleared, except only to complain that he is irregularly put in contempt and ought not to

be so."

$20$

Odel v Hart Id. 492, again decided in 1828, where the Lord Chancellor had this to say:

"A party in contempt may move by counsel to set aside the order against him, by which he is declared to be in contempt, for irregularity in that order, without coming in viculis but for no other

- purpose, without submitting himself to custody." $\mathsf{S}$ In Baker vs Dawon and Parry vs Perryman, decided in 1836 and 1838 respectively and reported in $I$ **coop.t. Cott 207,** where the court sated the rule in the terms that a party in contempt could not be heard on other matters; but there were exceptions to the rule $10$ as where an order which was alleged to be irregular was obtained subsequent to the contempt and it was sought to set it aside for irregularity and where the party in contempt was merely protecting himself; in both of which cases the rule was had to apply. The $15$ Lord Chancellor further stated that to extend the rule to the case of an order made subsequent to the contempt, "would place the party in contempt too much to the mercy of his adversary". - Finally, in **Chuck v Cranmer, I Coop. t. COH 205** $20$ decided in 1846 the Lord Chancellor held:

"A party was entitled to be heard, if his object was to get rid of the order or other proceedings, which

placed him in contempt, and he was so entitled to be heard for the purpose of resisting or setting aside for irregularity any proceedings subsequent to his contempt: but he was not generally entitled to take a proceeding in the cause for his own benefit. That there were exceptions to the last rule, but they were few in number."

$\mathsf{S}$

$20$

Considering the circumstances pertaining to the instant case, I find no justification in the submission should decline that this $\overline{c}$ ourt $\pm$ o hear the $10$ applicant/petitioner. He falls within the exceptions to the general rule against hearing a party accused of being in disobedience of an existing court order.

In the result, I would allow this application and grant the applicant/petitioner redress in the following terms. $15$

1. An interim order hereby doth issue staying the criminal proceedings against the applicant/petitioner in or arising from the Anti-Corruption Division of the High Court in Case No. ACC-CO 087 of 2012 until the main application at this Court, being Miscellaneous Application No. 28 of 2012 has been heard and

finally determined or until such other or further orders of this court:

2. An interim order herby doth issue suspending the Warrant of Commitment on Remand of the High Court of Uganda, (Anti-Corruption Division) in Criminal Case No. ACC-CO-087 of 2012 dated the 30^th day of July 2012 and the Warrant of Arrest of the High Court of Uganda (Anti Corruption Division) in criminal case No. ACC-CO-087 of 2012 dated the $6^th$ day of August 2012 until the main application at this Court, being Miscellaneous Application No. 28 of 2012 has been heard and finally determined or until such other or further orders of this honorable Court.

$\mathsf{S}$

$10$

$15$

$20$

3. The Registrar of this Court and the parties to this suit shall take all the necessary steps to ensure that the hearing of Miscellaneous Application No.28 of 2012 is undertaken at the earliest possible time provided that if no such hearing is undertaken within the next 90 days

from the date hereof, these orders shall be brought before this Court for possible review.

4. The Costs of this application shall abide the outcome of Miscellaneous Application No. 28 of 2012 now pending before this Court.

## I so order

$\mathsf{S}$

Dated at Kampala this 29 day of Angwe 012 $10$ S. B. K. Kavuma $\overline{(\cdot)}$ **Justice of Appeal/Constitutional Court** $15$ Mr Enock Kavale $\lambda\mathcal{N}$ Joék ( $2\phi$ $10W$ $\mathcal{K}$