[2023] UGCA 177

## THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAT OF UGANDA AT KAMPALA

## CIVIL APPLICATION NO. 56 OF 2023

TARISrNGFROM HCMA NO.532 OF 2O21) IARTSrNG FROM HCMC 22s OF 2O21)

LEGAL BRAINS TRUST (LBTI LTD:::::::::::::::::::::::::::::::::::::::APPLICANT

#### VERSUS

# ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

# CORAM: HON. MR. JUSTICE OSCAR JOHN KIHIKA, JA

(SINGLE JUSTICE)

#### RULING OF COURT

This application is brought under Sections 10, 11, 12(1) and 33 ofthe Judicature Act and Rules 2 (2) and 6(2)(b),44(1) of the Judicature (Court of Appeal Rules) Directions seeking for orders that;

- a) a tempora-ry injunction doth issue restraining the Respondent and its agents or servants or aly other person or authority from implementing the intelligent Transport Monitoring System (ITMS) or any programme of compulsory digital surveillance of a-11 motor vehicles in Uganda pending the disposal of an appeal from HCMA 532 of 2O2l or until further orders of this Honorable Court; and - b) costs for this appeal lrsic.i be provided for.

# gggLground

The Applicant filed Miscellaneous Cause No. 225 of 2O2l in the High Court (Civil Division) on 28th July 202 1 seeking for a declaration that the presidential directives, cabinet resolutions, advice/approval by the Attorney General, agreements, contracts, statutory instruments and other documents by whatever name called, through which government of Uganda purportedly engaged or otherwise authorized a Russian Company called JOINT STOCK COMPANY GLOBAL SECURITY or any other person or authority to execute a programme of compulsory digital surveillance of all motor vehicles, motorcycles ald other vessels in Uganda, violate or threaten to violate a bundle of fundamental rights and freedoms protected by Articles 21(11, 24, 27, 38, 40(2l,, 43, 44(a) and 45 of the Constitution and are illegal and further sought an injunction restraining the Respondent and its servants or agents or any other authority from enforcing the same.

The Applicant also filed an application for a temporary injunction order vide Miscellaneous Application No. 532 of 2O2l seeking the same orders against the Respondent, which application was dismissed on 7th Febru ary 2023. The Applicant filed a Notice of Appeal on the same day alrd filed an appeal vide Court of Appeal Civil Appeal No. 88 of 2023. The Applicant a.lso filed this application for a temporar5r injunction pending the hearing of the appeal in this court.

The grounds upon which this application is premised are stated in the Notice of Motion and more specifically set out in the affidavit of MS. ISABELLA NAKfYONGA on the 17th of February 2023 and are briefly that: -

- ¹. The High Court has, afier inordinate delag, injudiciously denied the Applicant the remedg of a temporary injunction sought uide HCMA 532 of 2021. - 2. The effect of the interloantory decision of tle learned judge complained of is tLnt it giues the Respondent a green light to implement the nouel Intelllgent T-ranspo tt M onltotlng System ltTM S A) no tut ithsta nding the fo llo w in ^g

legitimate complaints raised against ifs commencement in the atftent format uide HCMC 225 of 2027 uthich is pending determination in the louter court.

- 3. The Applicant has promptly filed a notice of appeal. - 4. That the appeal raises substantial questions of laut particularlg regarding \*E cofiect test for a temporary injunction and the application of tite pinciples such as primafacie case and ineparable loss o/ injury in a situation of threatened uiolation fundamental human ights and freedoms; - 5. If the temporary injunction herby sought is not granted, the Respondent threatens and intends to mateiallA change the stafits quo bg implementing o manifestly intrusiue and chilling programme of compulsory digital surueillance of all motor uehicles, motorcgcles ond otlrcr uessels in Uganda, despite th.e pendency of High Court Miscellaneous Cause No. 225 of 2O21 in uthich issues are raised concerning the legalitg of the impugned programme in its current format; - 6. Th.e balance of conuenience fauors the Applicant uLa seeks a rights-based inquiry that uill preuent ttte interested uiolation of fundamental rights to priuacy, dignitg, good gouernance and equalitg of opportunities and secure respect for luman rights and the rule of laut bg the Respondent in tlrc performance of its constitlttional and statutory obligations. - 7. That if thi.s Application is not granted, the appeal utill be rendered nugatory and hence a serious miscarriage of justice.

The Respondent filed an affidavit in reply deponed by HaJt Kekande Yunus l-rled on the 24th of March 2023, opposing the application. The grounds for opposition, as set out in the affidavit in reply, can be summarised as follows;

- 1. THAT I lnue been aduised bg Attomegs in the AttomeA General's Ctnmbers that this application does not disclose any pima facie case against tlrc Respondent and the Applicant's appeal does not raise a prima facie case. - 2. THAT I knou.t that thi-s application does not disclose ang grounds for the grant of a temporary injunction. - 3. THAT I knout tlnt the Applicant preuiouslg applied for a temporary injunction uide HCMA No. 532 of 2O21 in the High Court, uhich was heard on merits and in a ruling deliuered on Vh February 2023, tfle application ruos dismissed by the High Court for being deuoid of meit. - 4. THAT I knou that in the past and present, Uganda has utitnessed a series of a shocking ond gruesome cimes committed bg ciminals mouing bg motor ^uehicle s ond moto rcg cle s. - 5. THAT in 2O18. I know that H. E the President raised concerns about the deteriorating security situation in the Country and proposed digital monitoring of all motor uehicles and motorcycles as one of the solutions. - 6. THAT I knou that Gouernment of Uganda identified M/S Joint Stock Compang Global Securitg, a Russian companA to prouide a digital monitoring and tracking sgstem for motor uehicles and motorcycles. - 7. THAT I know tllat on 22"a March2019, the Gouernment of Ugandaand M/s Joint Stock Compang Olobal Security executed a Memorandum of tJnderstanding to carry out a feasibilitg studA for an intelligent Transport Monitoring Sg stem(" ITM S" ).

- 8. THAT I knou that on 23nd Julg 2021 an agreement u.tas executed between the Gouernment of Uganda and M/ s Joint Stock Compang Olobal Secuity for prouision of digital monitoing and tracking sAstem of motor uehicles and motorcgcles in Uganda through a real time control and monitoring center. - 9. THAT I knou the ITMS is primaily a searitA syslem uhose objective is to quicklg and accurately map all uehicles and motorcgcles in partianlar shauld 0 cnme occur. - 10. THAT I knou that implementation of the ITMS is in its final stages with productions and issuance of the neut uehicle registration plates slated to commence with gouernment uehicles and motorcgcles. - ¹1 . THAT I know that the Ministry of Works l:,r,s alreadg issued neu.t registrotion plate regulations that prouide for an inbuilt sensor embedded in ^a registration plate to be synchronized with an electronic deuice installed in th.e motor uehicle. - 12. TEAT I knou that the balance of conuenience is in the fauour of th.e Respondent uho has a constitutional dutg to protect all its citizens and to preuent and detect crime.

## Representetion

At the hearing of this application, Stanely Oketcho, Plus Katumba and Roger Mugabl appeared for the Applicant, while the Respondent was represented by Nlan Mukama.

Both parties filed written submissions which I have put into consideration rn determining this application.

For a temporar5r injunction to be granted, court is guided by certain principles which were laid out in the case of Shlv Construction V Endesha Enterprlses Ltd S. C. Ctvtl Appeal No. 34 of 1992 where it was held that;

nThe Appllcant must show a prlrna tac'le case uith a probabllttg of success. An lnJunctlon wlll not nonnallg be granted unless the Appllcant mlght otherwlse sutler lrreparable lnJury, uthlch couW not be compensated ln dam.ages. When the court ls ln doubt lt wlll declde the appllcatlon on the balance ol conuenlence."

Thus, the granting of a temporary injunction is an exercise ofjudicial 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 a temporary injunction are;

- 1. Firstly, that, the Applicant must show a prima facie case with ^a probability of success. - 2. Secondly, such injunction will not normally be granted unless Applicant might otherwise suffer irreparable injury which would adequately be compensated by alr award of damages. the not - 3. Thirdly if the Court is in doubt, it would decide al application on the balance of convenience.

An order for a Temporary Injunction is granted so as to prevent the ends of justice from being defeated.

# L. Prlna tac'le case with ltkelihood of success

In the grounds as set out in the Notice of Motion, include the assertion that the appeal rises substantial question of law particularly regarding the correct test for a tempora4r injunction.

The Applicant's affrdavit in support ofthe application however, does not attach the Memorandum of Appeal. Nonetheless reference is made to possible grounds of appeal in paragraph 13 of the Applicant's affidavit in support of the application deponed by Isabella Nakiyonga. Paragraph 13 states as follows; "13. THAT I have been advised by the Applicant's lawyers, Centre for Legal Aid, whose advice I verily believe to be true and correct that-

- a) The learned Judge erred in law by applying the wrong test for determining an application for a temporary injunction in a situation of threatened violations; - b) The learned Judge erred in law by ignoring binding precedent on the correct test for determining an application for a temporary injunction relating to threatened infringement of human rights; - c) The learned Judge erred in law and fact in finding that the Applicant had not established a prima facie case that warrants a grant of an order of a temporary injunction pending the hearing of the main cause: - d) The learned Judge erred in law and fact in holding that no irreparable loss could be established in the circumstances and in finding that it was unnecessary to dwell on the balance of convenience. - e) The learned Judge erred in law and fact in holding that there no need for preservation of the status quo had been established; - f) The learned Judge erred in law and fact when he failed to properly evaluate the evidence on record and came to the wrong conclusion that it was not imperative and/or an appropriate remedy to issue an order of temporary injunction of the main dispute were to be justly investigated. - g) The learned trial Judge breached the Applicant's right under Article 28(1) for speedy determination of HCMA 532 of 2021 when he delivered his ruling after 529 days without explanation and without form assurances and appropriate case management directives to ensure that HCMC 225 of 2021 would also nor suffer inordinate delay;"

Although the affidavit in support of the application does not contain any statement therein averring that the Applicant's appeal has a likelihood of success, the Applicant in paragraph 13 of the allidavit in support lays out the questions that are to be determined on appeal.

In the case of Oeman Kasaim Vs Century Bottllng Company Ltd Ctvll Appeal 34 of 2OL9, the Supreme Court of Uganda stated thus;

⁶It ls trlte that ln order to succeed on thls ground, the Appllcant must, dlrdrt from fillng the Notlce oJ Appeal" place belore Court Matcrlal that goes begond .r rrtere statement tha:t the appeal has a llkellhood oJ success..,,..,,the Appllcant dld not find lt necessary to attach to hls affida vtt ln support oJ the appllcatlon a drafi Memorandum oJ Appeal to lndlca,te the proposed grounds of appeal...the lmportant questlons are not euen m.cntloned in hls atffdadts so as to gite court an ldea about the posslble ground oJ hls lntended appeal We are ln the clrcutnstances unable to esta.blish llkellhood o.,f success ln the absence ol evldence'

Since the Applicant has set out the important questions to be inquired into on appeal, I find that the Applicant has established a prima facie case on appeal.

## 2. Irreparable damage

The second consideration is whether the Applicant will suffer lneparabb da nage ot tha:t the appeal ulll be rendered nugatary [ the lnJuractlon ls not granted.

The pending appeal, arises out of a public interest action which is still pending in the High Court. What is sought, is to stop the implementation of a public policy which the Applicant herein aJleges will infringe on the fundamental right of the citizens of Uganda. The Respondent, as I understand it, argues that the policy has been necessitated by the rise in criminal activities which ought to be curbed so as to ensure safety of the citizenry. I find difficulty in appreciating the argument for irreparable loss in the context of the matter that is being litigated

in the High Court. The current status quo is that the policy is yet to be implemented. If it were to be implemented, what loss would the applicant suffer? This question has not, in my view, been satisfactorily answered.

$\mathbf{I}$

Black's Law Dictionary, 9^th Edition at page 447 defined "irreparable damage" to mean:

## "damages that cannot be easily ascertained because there is no fixed pecuniary standard measurement"

In my understanding, the Applicant has to show that the damage bound to be suffered is such that it cannot be undone. No amount of monetary recompense can restore the injured party to the position he or she was before the damage was visited on the individual.

In the instant case, the Applicant has not demonstrated the injury they are likely to suffer if the ITMS is implemented. I am inclined to agree with the Respondent's counsel submission that the implementation of the Intelligent Transport Monitoring System will only require persons who own cars to obtain new number plates that are embedded with digital tracking capacities. The inconvenience likely to be suffered as a result of this move can be sufficiently atoned for in damages since all people who will acquire the new number plates will pay a specific sum of money which is ascertained and can be receipted. In the event that the need arises, the same can be reimbursed to all persons who will have incurred the expense.

In the case of **American Cynamide vs Ethicon [1975] 1 ALL E. R. 504** it was held:

"The governing principle is that the court should first consider whether if the Plaintiff were to succeed at the trial in establishing his right to a Permanent Injunction he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the Defendant's continuing to do what was

## sought to be enJoined betuteen the tlme oJ the Appllcation and the tlme ol the trial-

Applying the above principals of irreparable damage, I am therefore unable to find that the Applicant will suffer irreparable damage.

## 3. Balance of Convenlence

The concept of balance of convenience was expounded in Jayndrakumar Devechand Devanl Vs. Harldes Vallabhdas Bhadresa & Anor, Civil Appeal No. 2l of 1971 where the Court of East Africa observed inter alia that:

uWhere ang doubt exlsts as to the plalnttfls rtght, or lf hls tl,ght ls not dlsputed, but lts ttlolatlon ls denled, the Court, ln detennlnlng uhether an lnterlocntory injunction should be granted, takes Tnto conslderatlon the balo,nce ol conuenlence to the parties and the nature of the tnJury uhlch the defendant, on the one hand, utould sufJer tl the TnJunctlon ua.s granted and he should ultlnatelg turn out to be rlght, and that uhich the plainttlf on the other hrrnd, mlght sustaln lf the lnJunctlon uas relused and he shouW ultimatelg turn out to be right. The burden of proof that the lnconuenience uhich the platnttlJ uill sulJer bg the refusal of the lnfuncf,ion is greater than that uhich the defend.ant wlll sufJer, 1l tt ts grq.nte{ lies on the plaint{f."

In essence, balalce of convenience lies more on the one who will suffer more if the Respondent is not restrained in the activities complained of in the appeal. In the circumstances of the matter before me, the pending appeai seeks to overturn the decision of the High Court which refused to grant the order of a temporary injunction.

If I were to grant this application it would a-rnount to determining the appeal. The Respondent would therefore suffer an injustice if the orders in this application would in effect determine the pending appeal. The ba1ance of convenience therefore tips in favour of the Respondent.

Given the findings above, I find no merit in the application arrd order as follows;

1. The application is dismissed.

2. The costs of this application shall abide the outcome of the appeal.

I so order

| ?"61L | | | | |------------|--------|--------|-------| | Dated this | day of | Joo.p- | 2023. |

OS JUSTICE APPEAL N