[2015] UGCA 2032

#### THE REPUBLIC OF UGANDA

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

### crvrL APPLTcATtoN NO. 265 0F 2015

#### MAKERERE UNIVERSITY BUSINESS SCHOOL AND 2 OTHERS

V.

### DR. JAMES AKAMPUMUZA

# (Arising from Civil Application No. 254 of 2015 and High Court Miscellaneous Cause No. 310)

#### BEFORE: HONORABLE LADY JUSTICE SOLOMY BALUNGI BOSSA JA

#### RULING

The Applicants applied for an interim order of stay of the proceedings in High Court Miscellaneous Cause No. 310 of 2013 pending the hearing and determination of the main application Civil Application No. 254 of 2015 for a substantive order of stay of proceedings.

The main ground of the application is that the Applicants intend to appeal against the ruling in High Court Miscelloneous Cause No. 370 dated Augusl 26, 2015 denying and/or refusing the Applicants to raise preliminary points of law during the hearing of the application.

#### Background to the application

The Respondent filed Miscelloneous Couse No. 370 of 2073 in the High Court for review, challenging the procedural impropriety in the process leading to the appointment of the 3'd Applicant, breach of statute, illegal occupation of the office of Principal of the 1't Applicant without academic qualifications and illegal contracts, among others. According to the record of proceedings availed as Annexure AK1 to the affidavit in reply sworn by the Respondent on October L9, 2015, hearing of the matter commenced on November 13, 2013.

According to the Ruling of the learned trial Judge dated August 28, 2015 annexed to the affidavit in reply as Annexure D, the learned trial Judge accorded parties an opportunity to cross-examine each other's witnesses. On May 22, 20L4, the Applicant was cross-examined but cross-examination was not concluded. At the resumed hearing, the Court was notified that the previous firm of Muwema, Mugerwa and Company Advocates representing the Applicants had split and there was need to replace Counsel Terrance Kavuma, who had previously represented the Applicants. At the next hearing date at which crossexamination ought to have been continued and completed, Mr. Charles Nsubuga, from Muwema and Company Advocates, the new Counsel of the Applicants, requested for an adjournment to peruse the pleadings and proceedings. The adjournment was granted. The matter was then adjourned to August 26, 27, and 28 of August, 2015 for further crossexamination of the applicant, and allthe respondents.

At the resumed hearing on August 26,20L5, Counsel for the Applicants sought to raise preliminary points of law, which were that;

- 1. High Court Miscellaneous Cause No. 310 was time barred. - 2. The applicant had no cause of action, and - 3. The Applicant had no locus standi.

Counsel for the Applicants had not given prior notification of his intention to raise the preliminary points of law to Counsel for the Respondent or to the Court. Based on Order 6 Rule 28 of the Civil Procedure Rules, the learned trialJudge decided thaU

'the court having considered this matter in its ruling determined that the crossexamination must be completed in respect to the applicant and respondents and the preliminary points of law be raised after within the meaning of Order 5 Rule 28 of the Civil Procedure Rules."(CPR)(See paragraph 2, page 6 of the Ruling on the application for leave to appeal 'Annexure D' to the affidavit in reply).

Whereupon, Counsel applied for leave to appeal, which leave was refused, hence the application to this Court. The learned trial Judge reasoned that

"The respondents will not suffer any prejudice as the right to raise points of law has not been taken away from them and if the points of law are pure and precise within the meaning of Mukisa Biscuits case, there is no danger to the respondents that these points of law will be affected by the cross-examination of the applicant and re-examination, as these will be in respect to the facts of this application."

Order 6 Rule 28 of the CPR provides;

## "Any porty sholl be entitled to raise by his or her pleodings ony point of low, ony point so roised shall be disposed ol by the court ot or ofier the heoring."

At the hearing of the present application, the prejudice Counsel for the Applicant pointed to was first, that the preliminary points of law could have disposed of the matter and saved Court's time; and second that the Applicant was denied the opportunity to raise the matter when he wanted to.

Counsel for the Respondent opposed the application. He submitted that the status quo is that this application has been overtaken by events as the proceedings in the Miscellaneous Cause No. 370 of 2013 have since ended and the matter is now pending judgment. The Applicants were given leave to raise objections in written submissions which they were ordered to have filed by October L2, 20L5. The Applicant's application is not made in good faith, as they refused to raise their intended objections by written submissions before the High Court, within the time ordered by the Court. The Respondent had filed Civil Application No. 274 and 275 of 2014 before this Court to strike out the Applicant's application for leave to appeal and stay of execution and for an interim order to stay these proceedings. They were still pending hearing. The Respondent stood to suffer irreparable damage if the proceedings in Miscelloneous Couse No. 370 ol 2073 were stayed in the lower court based on flimsy reasons advanced by the Applicants as the impugned 3'd Applicant's term, which is the subject of judicial review shall run its course before judgment is issued in the matter.

## Resolution of the application

Judicial discretion is an established principal. lt is the power of the court to act in accordance with the dictates of its own judgment, and conscience in accordance with well laid down principles of law. lts exercise must not be arbitrary, capricious or unrestrained. lt must be the exercise of judicial judgment based on facts, guided by law or the equitable or just and proper under the circumstances, lt is determined by the jurisdiction of a judicial officer in a given case. On appeal, ^a higher court will usually accept and confirm decisions of trial judges when exercising permitted discretion, unless capricious, showing ^a pattern of bias, or exercising discretion beyond his/her authority.

Thus judicial discretion should not be unduly interfered with unless it has been exercised injudiciously. A trial court should be allowed to do its work without undue interference with its discretion from the Appeal Courts.

The trial Judge clearly noted that;

"ln this matter, the court has not denied the respondents the right to file written submissions on points of law of whatever nature they wish to raise, but directed that this be done after the conduct of the cross-examinations and reexaminations.

The respondents had an opportunity to raise preliminary objections at the filing of the pleadings or in their submissions in reply to the submissions of the applicant but did not do so on these two occasions. lnstead, Counsel for the respondents opted to apply to the Court to cross examine the applicant and proceeded to do so as I have noted herein already."

ln the circumstances of this case, where hearing was advanced, and the applicants were given an opportunity to deal with the points of law in their submissions, I find no capriciousness or error that would warrant this Court's interference with the learned trial Judge's exercise of d iscretion.

Stay of proceedings is a far-reaching reaching remedy. lt should not be granted lightly. The learned trial Judge in his Ruling on the application for leave to appeal ('Annexure D' to the affidavit in reply)) indicated clearly that he would deal with the preliminary points of law in his Ruling.

Rather than wasting Court's time, at the time where the proceedings had reached, it was proper for the learned trial Judge to consider judicial economy by opting to deal with the preliminary point of law together with other submissions in his Ruling. ln fact, learned Counsel for the Applicants has conceded that he has already filed submissions and dealt with the preliminary points of law therein. Accordingly, stay of proceedings in Miscellaneous Couse No. 370 ol 2073 is not necessary as the matter is awaiting ruling. Should the Applicants be unhappy with the ruling, they may appeal.

ln the circumstances, the balance of convenience tilts towards allowing the learned trial Judge to finalize the proceedings in High Court Miscellaneous Couse No. 370. I therefore find no merit in this application. As a result, this application for an interim order of stay is disallowed and is dismissed with costs to the Respondent.

Dated october 30, 2015.

Signed by:

\

Solomy Balung ⁱBossa JA yC<[,\*.-

Ruling read and delivered in open Court

-'\ Solomy Balungi Bossa JA \ i,il

Ruling delivered in the presence of:

Mr. Simon Tendo Kabenge for the Respondent

Ms. Karungi Ann for the Applicant

Mr. Mark Mugasha, Legal Officer of the first Applicant