[2023] UGHCCD 390

## THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

# [CIVIL DIVISION]

# **MISC. APPLICATION NO. 1173 OF 2023**

#### [ARISING FROM MISC. CAUSE NO. 274 OF 2023]

#### KANYESIGYE PETERSON

ANYANGO LILIAN ============================= APPLICANTS

### VERSUS

- 1. UGANDA NATIONAL STUDENTS ASSOCIATION - 2. NASASIRA BILL CLINTON - 3. CHERUKUT FRED TOSKIN ================== RESPONDENTS

#### **BEFORE: HON. JUSTICE EMMANUEL BAGUMA**

## **RULING**

This application is by chamber summons under order 41 Rules 1(a), 2 (1) and 9 of the CPR, section 33 of the judicature Act, section 98 of the CPA, order 52 rules 1, 2 & 3 of the CPR seeking for orders that; -

- *a) A temporary injunction doth issue against the Respondents restraining them and or their agents/employees/servants/labourers/workers or anyone claiming title under or deriving authority from them from conducting, holding, mobilizing and or continuing with the UNSA 34th Students' Council 2023-2024 General Elections and or processes thereunder until the final disposal of the main cause.* - *b) Costs of this Application be provided for.*

The application is supported by the affidavit of **Anyango Lilian the 2nd applicant** whose details are on record but briefly states that; -

1. I am a duly elected deputy speaker with the 1st Respondent herein by 33rd UNSA National Students' Council together with the 1st applicant as speaker.

- 2. On 13th November 2023 I and the 1st applicant were suspended and the purported election of Miss Kiyuba Jennah as interim speaker and Mr. Ochen Alfred as her deputy. - 3. The illegally elected speakers and deputy speaker are in the process of conducting elections on 27th to 30th December 2023 at our detriment. - 4. We have filed an application for judicial review contesting the conduct and activities of the Respondents of halting, suspending and or interdicting us. - 5. The 2 nd and 3rd Respondents in conjunction with the illegally chosen interim speaker and her deputy have continued with their irregular, illegal and ultra vires proceedings by calling nominations of different candidates on the different National Executive Committee in a bid to further their deliberate violation of the UNSA Constitution. - 6. There is an imminate threat as the Respondents intend to conduct elections if not restrained the same will render the application for judicial review nugatory.

In reply, the Respondents in their affidavit in support sworn by **Cherukut Fred Toskin the 3rd Respondent and the Executive Secretary** whose details are on record but briefly stated that; -

- 1. The 2nd Applicant's affidavit in support is incompetent on grounds that the 1st applicant did not authorize the 2nd applicant to swear an affidavit on his behalf and that the application has effects of affecting third parties who are not party to this application. - 2. The 1st Respondent has a Dispute Resolution, Displinary and Arbitration Committee with the power to handle complaints and appeals arising from members of the National Executive Committee but the Applicants did not lodge any complaints with the said Committee before filing this application. - 3. On 29th January 2023, the 1st and 2nd Applicants were elected speaker and Deputy speaker of the 1st Respondent respectively for a term expiring on end of December 2023. - 4. In March 2023, the Permanent Secretary Ministry of Education & Sports closed the 1st Respondent's office, suspended the association's operations and also froze its accounts only to be re-opened in August 2023. - 5. The main case shall not be rendered nugatory if the temporary injunction order is not granted.

- 6. In any case, the Applicants are by virtue of the Respondent's constitution required to vacate office before 31st December 2023. - 7. Nominations have already been concluded and members of the 1st Respondent Association are entitled to vote for a new National Executive Committee since the tenure of the current executive committee constitutionally expires before the end of December 2023. - 8. The grant of this application has the effect of irregularly extending the tenure of the current National Executive Committee contrary to the Constitution of the 1st Respondent. - 9. The applicants shall not suffer any irreparable loss that would not be compensated in damages if this application is rejected.

In rejoinder, the Applicant reiterated his averment in chief but added that this is not representative suit which required authority to file an affidavit in support and that the applicants only remedy was to file a complaint with the body of trustees which they did but the same was ignored.

## **Representation.**

Counsel Kakeeto Sirajje represented the Applicants while counsel Bazekuketta Derric together with counsel Sseguya Ismail Kimuli represented the Respondents.

At the hearing of this application, both counsel agreed to file written submissions in the main application and POs whose details are on record.

# **Submissions by counsel for the Applicant.**

# **Whether this is a proper case for the grant of a temporary injunction.**

Counsel submitted that the statutory considerations for the grant of a temporary injunction in public law matters are contained under **Order 41 Rule 2(1)** of the Civil Procedure Rules which provide that; -

*"In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the Plaintiff may, at any time after commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the Defendant from committing the breach of contract or injury complained of, or any injury of a like kind arising out of the same contract or relating to the same property or right".*

Counsel referred to the case of *American Cyanamid Co. -Vs- Ethicon Ltd, [1975] AC 396* which holding was also followed with approval in the Supreme Court case of *Robert Kavuma -Vs- Hotel International SCCA No. 8/90* that for the grant of a temporary injunction, the following elements should be satisfied by the Applicants(s);

- *a. That the applicant must show that there is a substantial question to be investigated or a prima facie case with chances of winning the main suit on his/her or their part which has also been pronounced in case law as the likelihood of success of the head suit.* - *b. That the applicant would suffer irreparable injury or damage which are not capable of being atoned for by the award of damages if the temporary injunction is denied.* - *c. That the balance of convenience is in favour of the application.*

CounselS proceeded to submit on each of the above elements separately.

# *Whether there is a prima facie case with a probability of success?*

Counsel submitted that the position of the law is that what the Applicant is required of, at this stage, is to show a prima facie case with probability of success but not actual success. Hence, this means there should be a triable issue, that is, an issue which raises a prima facie case for adjudication by the Court. He referred to the case of *Robert Kavuma -Vs- Hotel International supra.*

He submitted that the Applicants filed **Misc Cause 274 of 2023** in this Honorable Court against the Respondents/ seeking for Judicial Review of the illegal acts of the Respondents' acts of halting, suspending and or interdicting the services of the Applicants without the authority to do so. The Applicants have a prima facie case against the Respondents in the head suit currently pending before this Honorable Court and the same has a very high likelihood of success. This is evidently supported by the evidence of the Applicants in the supporting affidavit to this application**.**

Counsel submitted that it is trite that the discretion conferred on this Court cannot be fettered by any rule. There is thus no rule that a party as the Applicants herein challenging the validity of a law or application of the same must first prove a prima facie case before getting a temporary injunction. If this was to be the case, parties then shall suffer serious and irreparable harm in the event that the law being enforced is not restrained by the temporary injunction. He referred to the case of *Geraldine Ssali Busuulwa -Vs- NSSF & Anor Misc Appn No. 96 of 2016.*

# *Whether the applicant will suffer irreparable injury, which cannot be atoned for by award of damages?*

Counsel submitted that it is trite that the adequacy of damages is unlikely to be a key issue in public law cases as the instant one before the Court because a breach of public law does not in itself give rise to a claim in damages. Thus, making the balance of convenience the key factor for the administrative Court when deciding whether or not to grant an interim injunction. He referred to the case of *Geraldine Ssali Busuulwa - Vs- NSSF & Anor supra.*

Counsel submitted that the Applicants will suffer irreparable injury, which cannot be atoned for by an award of damages as has been demonstrated in the Applicants' affidavits in support of this application. Irreparable injury does not mean that there must not be a physical possibility of repairing the injury, but it means that the injury or damage must be substantial or material one that is or one that cannot be adequately atoned for in damages. He referred to the case of *Tonny Wasswa -Vs- Joseph Kakooza [1987] HCB 79.*

The main purpose of the main application is to determine whether their suspension was illegal, irregular, unlawful or not and if this application is not granted and the elections which are scheduled on the **27th Day of December 2023 to the 30th day of December 2023** are held before determining the same, this shall cause great inconvenience which cannot be atoned for by an award of damages. No amount of compensation that can compensate for the inconvenience.

# *Whether the Balance of convenience tilts in favour of the Applicants?*

Counsel submitted that the term balance of convenience literally means that if the risk of doing an injustice is going to make the Applicants suffer then probably the balance of convenience is favorable to him or her and the court would be more inclined to grant to him/ her the order sought for. He referred to the case of **Victoria Construction Works Ltd –Vs- Uganda National Roads Authority HCMA No 601 of 2010** where the High Court while citing the decision in *J. K Sentongo –Vs- Shell (U) Ltd [1995] 111KLR 1* Justice Lugayizi as then he was observed that if the Applicant fails to establish a prima facie case with a likelihood of success, irreparable injury and need to preserve the status quo, then he/she must show that the balance of convenience was in his/her favor.

Counsel submitted that the fact that when it comes to temporary injunctions in matters of Judicial Review, the rules of the game have to change a little and that the Court should shift immediately to the balance of convenience first since it is always difficult to solve the matter at the time/stage of prima facie case and irreparable damage. He referred to the case of **Geraldine Ssali Busuulwa -Vs- NSSF & Anor supra.**

Counsel submitted that the Applicants have testified that the General Elections are to be held between the **27th day of December 2023 and the 30th day of December 2023** and the main Application **Misc Cause No. 0274 of 2023** is due for a ruling on the **11th day of January 2024** which is actually only **15 days** for which it shall not amount to great inconvenience to the Respondents as also themselves admit to have extended the events from the **21st day of December 2023** to that other date.

Counsel concluded that It is also trite that interim injunctions can be granted against public bodies from acting in a way that is unlawful or abusing its statutory powers or compelling the performance of a duty created under the statute. Public bodies should not be prevented from exercising the powers conferred under a statute unless the person seeking an injunction can establish a prima facie case that the public authority is acting unlawfully which is the exact case with the Respondents herein and thus making this a proper case to grant the temporary injunction*.* He referred to the case of *Alcohol Association of Uganda & Anor -Vs- AG & Anor Misc. Appn N0. 744 of 2019.*

Counsel for the Respondents in his written submission raised four preliminary points of law to wit;

- *1. The application affects 3rd parties who are not party to the main cause and the instant application.* - *2. The applicants are not contestants in the upcoming general elections and therefore lack a protectable interest by way of a temporary injunction order.* - *3. There is no prayer for a temporary injunction to sustain the instant application for a temporary injunction.* - *4. The 1 st Applicant's application is not supported by affidavit evidence.*

I have very carefully and critically considered the points of law raised by counsel for the Respondents, it is my considered view that these POs will ably be answered in the

analysis of the entire application and for the interest of justice and for this court to reach a just decision, I will proceed and handle this application on its merit.

## **Submissions by counsel for the Respondents**

# **Whether this is a proper case for the grant of a temporary injunction?**

Counsel laid down the principles governing the grant of temporary injunction in public law matters or judicial review applications and the grounds for grant may sometimes defer from the grounds in ordinary civil suits and the same are considered with caution and appropriateness of the case. He referred to the case of **Water & Environmental Media Network (U) Ltd v NEMA HCMA No. 509 of 2020**.

Counsel submitted that the courts should be reluctant to restrain the public body from doing what the law allows it to do or to execute its core mandate or function. He referred to the case of **Alcohol Association of Uganda & Others v AG & Anor HCMA No. 744 of 2019**

Counsel submitted that for an application to be maintained three conditions must be satisfied by the Applicant that is; -

The applicant must show a prima facie case with a probability of success, that the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages and if the court is in doubt, it would decide an application on the balance of convenience.

He referred to the case of **American Cyanamid vs. Ethicon Limited 1974 AC 396** also relied on by the supreme court in **Kiyimba Kaggwa vs. Hajji A. N Katende.**

Counsel contended that a temporary injunction ought not to be granted if it will seriously affect the operations of the entity. He referred to the case of **Samuel N. Kamau v Mr. Amir Hamza & Ors HCMA No. 29 of 2021**

Counsel proceeded to submit on each elements for grant of a temporary separately.

# *Whether there is a prima facie case with a probability of success?*

Counsel submitted that the Applicants do not have a prima facie case. To prove the existence of a prima facie, first the Applicants have to plead in their affidavit in support of the application that the main case has a high likelihood of success. The Applicants did not plead that they have a prima facie case with a probability of success. He referred to the case of **Legal Brains Trust (LBT) Ltd v Attorney General Court of Appeal Civil Application No. 56 of 2023.**

Secondly, the Applicants are required to clearly state with specificity, in their affidavit, the serious questions to be tried but unfortunately, the Applicants did not do so and therefore this Court has no basis to assess the validity of the questions to be determined. Counsel referred to the case of **Osman Kassim Ramathan v Century Bottling Company Supreme Court Civil Application No. 34 of 2019** wherein the Supreme Court held that:

*"The important questions are not even mentioned in his affidavits so as to give this Court an idea about the possible ground of his intended appeal. We are, in the circumstances, unable to establish the likelihood of success in the absence of evidence. This ground was thus not satisfied".*

Counsel submitted that the facts in this matter are highly contested and where the facts are highly contested in an interlocutory application, a prima facie case is not made out. He referred to the case of **Assoc. Prof. Jude Ssempebwa & Anor v Makerere University & Anor HCMA No. 021 of 2021** where court held that,

**"***Where there is a serious dispute on the facts, it cannot be said that a prima facie case had been made out for the grant of a temporary injunction".*

## *Whether the applicant will suffer irreparable injury, which cannot be atoned for by award of damages?*

Counsel for the Respondents submitted that irreparable damage must be clearly demonstrated in the affidavit in support of the application. There is no single paragraph in the affidavit in support of the application that states the irreparable damage that the Applicants will suffer. Counsel referred to the case of **Osman Kassim Ramathan v Century Bottling Company Supreme Court Civil Application No. 34 of 2019** where Court held that:

#### *"The applicant has to prove by affidavit evidence that he or she will suffer irreparable loss if the status quo is not maintained".*

Counsel submitted that the Applicants seek damages in the motion in the main cause. It is trite law that a prayer for damages shows a possibility of compensation in case of damage and / or injury occurred. He referred to the case of **Zam Nambi v Bujingo & 2 Ors HCMA No. 1013 of 2015.**

## *Whether the Balance of convenience tilts in favour of the Applicants?*

Counsel submitted that the applicants are not contestants in the scheduled general elections and accordingly, they have nothing to lose if the general elections are conducted. He referred to the case of **Muhumuza Ben v Attorney General & Ors HCMA No. 449 of 2020** in which case the Applicant sought to stop an election and court held that:

## *In this case, the balance of convenience is not in favour of the applicant and has nothing to lose except for his personal interest… which interest or damage will be considered after the court has determined the main cause.*

Counsel submitted that the grant of this application will stifle the rest of the operations of the 1st Respondent. The general elections are meant to usher in a new executive committee, including various leaders like the President, Vice President, General Secretary, Speaker, Deputy Speaker and others through whom the 1st Respondent operates. These offices are only occupied by the elected candidates for just one year and any delay shortens their tenure. He referred to **Article 7 Clause 2.0 (a) and Article 8 clause 1.3 (a) of the 1st Respondent's Constitution (the UNSA Constitution).**

Counsel stressed the position that courts should be reluctant to restrain the public body from doing what the law allows it to do or to execute its core mandate or function.

Counsel further submitted that the grant of this application will affect and inconvenience a number of third parties who have already been nominated as candidates in the general elections. An interlocutory order cannot be granted where it affects third parties. He referred to the case of **The Uganda Super League Limited v Federation of Uganda Football Associations (FUFA) Limited Court of Appeal Civil Application No. 67 of 2015.**

Counsel concluded that the Applicants were suspended on charges of physical assault during a meeting pending investigations and a disciplinary hearing. It is an undisputed fact that the 2nd Applicant was expelled from St. Elizabeth Institute of Health Professionals, Mukono. It is now trite law that it is unwise to keep an indiscipline case among the rest of the community.

In rejoinder, Counsel for the Applicant reiterated his submissions in chief.

### **Determination of court.**

The law on granting temporary injunctions has since been settled in the classic case of **E. L. Kiyimba Kaggwa Vs Haji Abdul Nasser Katende [1985] HCB 43** where the supreme court laid down the rules for granting a temporary injunction as; -

*"the granting of a temporary injunction is an exercise of judicial discretion and the purpose of granting it is to preserve the matters in the status quo until the question to be investigated in the main suit is finally disposed of.*

*The conditions for the grant of the interlocutory injunction are; -*

- *i. First that, the applicant must show a prima facie case with a probability of success.* - *ii. Secondly, such 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.* - *iii. Thirdly, if the court is in doubt, it would decide an application on the balance of convenience.*

I will now proceed to consider this application basing on the above principles as below; -

# *Whether there is a prima facie case with a probability of success?*

In applications for a temporary injunction, the Applicant is required to show that there is a prima facie case with a probability of success of the pending suit.

The Court must be satisfied that the claim is not frivolous or vexatious and that there is a serious question to be tried. **(See American Cynamide versus Ethicon [1975] ALL ER 504).**

A *prima facie* case with a probability of success is no more than that the Court must be satisfied that the claim is not frivolous or vexatious, in other words, that there is a serious question to be tried as was noted in the case of **Victor Construction Works Ltd Vs Uganda National Roads Authority HMA NO. 601 OF 2010**.

In the instant case, the applicants filed an application for judicial review No. 274 of 2023 contesting their removal from office as speaker and deputy speaker respectively. This application challenges the decision making process of their removal from office and not necessarily the merits of the decision. This does not relate to the upcoming elections to be conducted by the 1st Respondent. The status qou now is that the applicants were removed from office on 13th November 2023, interim speaker and deputy speaker were appointed into those offices. If there was any need to stop the Respondents from anything, that would have been to stop them from removing the applicants from office!

It is my conclusion on this point that the main cause does not raise triable issues which relate to orders sought in the present application. The sum effect of this application is to put the entire Students association in Uganda in a limbo without office bearers at the detriment of the entire students' body. This court cannot allow such an absurdity to happen. The applicants were remaining with approximately 2 months to complete their term of office by the time they were allegedly removed from off, they filed an application for judicial review where court will determine the legality of their removal from office and consider the available remedies.

## *Whether the applicant will suffer irreparable injury, which cannot be atoned for by award of damages?*

In the case of **Moses Kasozi vs. Muhammed Batte & 4 Ors Civil Appeal No. 24 of 2022**, irreparable injury was defined to mean; -

## *"injury that is substantial or material which cannot be adequately compensated for in damages".*

In this application, the applicants where duly elected speaker and deputy speakers of the 1st Respondent on 29th January 2023 for the year ending December 2023. They were allegedly removed from office on 13th November 2023 while remaining with approximately 2 months to complete their term of office. This court does not condone the acts of removing them from office, however this injury can be atoned in damages and the same cannot be said to be irreparable. In any case, the alleged unlawful removal from office has no bearing to the current elections since the executive committee's term of office is expiring and they are supposed to elect new leaders as per UNSA Constitution. The Applicants are not even contesting in the forthcoming elections that their interests will be jeopardized!

Counsel for the applicant submitted that the applicants were illegally suspended from office and have a high likelihood of success in the main cause whose purpose is to determine whether their suspension was illegal, irregular, unlawful or not and if this application is not granted and the alleged forthcoming elections on 27th December 2023 to 30th December 2023 are held before determining the same, this shall cause grave inconvenience which cannot be atoned in damages.

With all due respect to counsel for the applicants, election of new leaders of the students council does not in any way stop court from determining the manner in which the Applicants were removed from office and that will cause no inconvenience which cannot be atoned in damages.

## *Whether the balance of convenience tilts in favour of the Applicants?*

Balance of convenience was defined in the case of **Uganda Electricity Distribution Company Limited Vs Citi Bank Uganda Limited and 2 ors** to mean; -

*"comparative mischief or inconvenience that may be caused to either party in the event of refusal or grant of injunction".*

In the case of **Gapco (U) Ltd vs. Kawesa Badru HCMA No. 259 of 2013**, court observed that balance of convenience is where; -

*"The risk of doing an injustice is going to make the Applicant to suffer, then probably the balance of convenience is favorable to him or her and the court would most likely be inclined to grant him/her the Application for a temporary injunction".*

Basing on the above authorities, if the applicant fails to establish a prima facie case with a likelihood of success, irreparable injury and need to preserve the status- quo, then he/she must show that the balance of convenience is in his/her favour.

It is necessary to assess the harm to the applicants if there is no injunction, and the prejudice to the Respondents if an injunction is imposed and take the course which carries the lower risks and also weigh the balance of convenience for the public interest as well as the interest of the parties.

The two applicants' interests cannot supersede the interest of the entire students body in the country. It would be unfair to grant the temporary injunction to restrain elections where even the applicants are not contesting for any post and their term of service is expiring in few days from now i.e. 31st December 2023.

In the final result, it is my considered view that great inconvenience will be suffered by the Respondents based on the reasons given above.

#### **Conclusion.**

This application fails with the following orders;

- **1. The application is hereby dismissed.** - **2. Given that these are members of the same association and in a bid to promote reconciliation, I make no orders as to costs.**

Dated, signed, sealed and delivered by email this **23rd** day of **December 2023**.

Emmanuel Baguma

Judge.