[2025] UGHCCD 2

## **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION)**

## **MISC. APPLICATION NO. 0548 OF 2024**

#### **CONSOLIDATED WITH**

## **MISC. APPLICATION NO. 0541 OF 2024,**

## **MISC. APPLICATION NO. 549 OF 2024,**

## **MISC. APPLICATION NO. 536 OF 2024.**

# **(FORMERLY HIGH COURT OF UGANDA AT JINJA MISC. APPLICATION NO. 309 OF 2023, MISC. APPLICATION NO. 25 OF 2024, MISC. APPLICATION 306 OF 2023, AND MISC. APPLICATION 307 OF 2023, RESPECTIVELY)**

## **ALL ARISING FROM HCT-00-CV-CI-0008 OF 2023**

# **(FORMERLY HIGH COURT OF UGANDA AT JINJA, COMPANY CAUSE NO. 002 OF 2023)**

**UGANDA MUSLIM SUPREME COUNCIL :::::::::::::::::::::::::::::::::::::APPLICANT**

#### **VERSUS**

#### **1. BABIRYE YUDAYA**

- **2. BURHAN NAMANYA** - **3. HUSSEIN SSIMBWA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS**

#### **AND**

| 1. | HON. | SSEWANTE | UMARU | & | 15 | OTHERS | |----|------|------------------------------------------------------------------------------------------------------|-------|---|----|--------| | | | ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANTS | | | | |

#### **VERSUS**

- **1. BABIRYE YUDAYA** - **2. BURHAN NAMANYA** - **3. HUSSEIN SSIMBWA** - **4. UGANDA MUSLIM SUPREME COUNCIL ::::::::::::::::::::::::::::::RESPONDENTS**

**Before**: *Hon. Justice Dr Douglas Karekona Singiza*

# **RULING**

## **1 Introduction**

The motion(s) before me stem from three intertwined factors: the dynamism of the Islamic faith; the authority and governance of the Muslim community in Uganda; and the need to protect the substantial property rights of the diverse Muslims sects in the country. The Uganda Muslim Supreme Council (UMSC), a body with a significant role in the governance of Uganda's Muslim community, traces its history to the 1970s when the country was under military rule.¹ Established primarily to bring together Uganda's fragmented Muslim community, 2 the UMSC had its initial constitution drafted in 1972 at a conference organised by Idi Amin himself. With the promulgation of the UMSC's first constitution, the Supreme Council, comprising 11 representatives from 21 civil administrative (Muslim) districts, was established, the intention being to unify Muslim sects along the lines of other religions.³

As with these other religions in Uganda, the governance structures of Islamic institutions, including deliberative assemblies of theirs such as extraordinary general meetings, often blend in with secular laws. It is for this reason that courts in this country, when navigating religious disputes, exercise delicacy and try to ensure that tensions are never aggravated.⁴

#### *1.1 Representation*

At the commencement of the application, *M/s Kabega, Bogezi and Bukenya Advocates* represented the applicants, while *M/s ADIL Advocates & Solicitors* represented the respondents. I appreciate the contribution of counsel on both sides, and, as I always state, where I do not adopt all the arguments made and the authorities cited, it is not out of disrespect but due to limitations of time and space.

¹ This consolidated application for review is brought under sections 82 and 98 of the Civil Procedure Act cap 282; section 37 of the Judicature Act cap 16; and Order 52 rules 1 and 3 of the Civil Procedure Rules (CPR) SI 71-1. ² See details in Mahajubu A *Leadership Wrangles in the Uganda Muslim Supreme Council and its Impact on the Development of Islam in Uganda, 1972-2008* master's thesis at College of Humanities and Social Sciences, Makerere University.

³ For example, Reid RJ *Ghosts in the academy: Historians and Historical Consciousness in the Making of Modern Uganda.* Comparative Studies in Society and History (2014) 56(2) 351–380 doi:10.1017/S0010417514000073.

⁴ See *Most Rev. Dr Samuel Kazimba Mugalu v Mazzi Joyce and 5 Ors* Miscellaneous Application No. 36 of 2023 (arising out of CS No. 34 of 2023) per Hon Justice Dr Zieja, the Principal Judge, who, in dismissing a plaint that sought to challenge the manner in which a new bishop had been enthroned, found merit in the objections raised and held that 'once you subscribe to a certain faith, you must go by its tenets …' In this case, it was the Anglican church's canon laws rather than secular laws that were considered appropriate for dealing with disputes about how church ministers are appointed within the Church of Uganda.

#### *1.2 Background*

The motion under Miscellaneous Application No. 548 of 2024 seeks three orders. The first is that the judgment of the High Court, delivered on 12 December 2023, in Company Cause No. 002 of 2023, *vide Babirye Yudaya, Burhan Namanya, and Hussein Ssimbwa v Uganda Muslim Supreme Council*, be reviewed and set aside; the second is an order to quash all the proceedings and resolutions relating to Company Cause No. 002 of 2023 passed by the company extraordinary general meeting on 16 and 17 December 2023 at Ggangu Muslim Primary School; and third order sought is the costs of the application. The application is based on several grounds, which I summarise as follows:

- 1) The respondents filed Company Cause No. 002 of 2023 seeking orders that the UMSC be wound up in the public interest and in the interest of the members. The reasons were that the manner in which the UMSC conducted its affairs was prejudicial to the petitioners and the Muslim community. - 2) On 12 November 2023, the court gave its judgment and ordered, inter alia, that a special sitting of the UMSC be called to look into the affairs of the company and file a report before the court. - 3) On the basis of the pleadings and arguments on record, the court made findings noting that, rather being wound up (notwithstanding that the court had established all the conditions for doing so), the UMSC could hold a general meeting under article 1(1) of the UMSC Constitution at a neutral venue. - 4) The court's reasoning was that, considering the objectives of the UMSC and the reasons for its formation, its dissolution would do more harm than good to the Muslim community in Uganda. - 5) The UMSC held a general assembly on 30 November 2023 and, later, a special general meeting on 16 and 17 December 2023 at Ggangu Muslim Primary School. The special general meeting allegedly suspended the Mufti and appointed an acting Mufti, who was subsequently sworn in. - 6) The special general meeting also allegedly established a committee to investigate the alleged irregularities of the Mufti.

7) On account of the events that unfolded, the applicant maintains that there are sufficient reasons to review the challenged decision of court and grant the necessary remedies.

# **2 Parties' depositions**

The motion is supported by the deposition of Muhamad Ali Aluma in his capacity as the deputy secretary of finance and administration for the UMSC. His deposition speaks to the following:

- 1) The respondents filed Company Cause No. 002 of 2023 seeking orders that the UMSC be wound up in the public interest and in the interest of its members generally. - 2) The respondents sought two further orders: a declaration that the manner in which the UMSC is conducting its affairs is prejudicial to the interests of the petitioners and the Muslim community in Uganda at large; and an order preventing the National Executive Committee and any other organ of the UMSC from disposing of properties it holds without the approval of two-thirds of the General Assembly.

The applicant cites six specific grievances:

- 1) The court orders had vested the General Assembly with the power to decide if the affairs of the company were contrary to the constitution of the UMSC. - 2) The order gave the respondents leeway to flout statutorily established standards relating to certainty of location, quorum, and limits on the resolutions of company meetings. - 3) The orders were outside the prayers of the respondents, unnecessary, and uncalled for in the circumstances. - 4) The petition was made by members who are not entitled to vote in the meeting, especially since they are not the national delegates to the National Assembly. - 5) The orders were given after the court erroneously shifted the burden of proof from the respondents and placed the same on the applicants. - 6) In making the orders for a general assembly to be called, the court had failed to take into account the applicant's constitutional provisions in this regard.

Mr Aluma's deposition speaks, furthermore, to the existence of a mistake, apparent on the face of the record, sufficient to warrant the review because there were new important matters of evidence that could not be produced in court at the time that the judgment and order were made.

It was also the evidence of Mr Aluma that the UMSC had held a general meeting on 30 December 2023 as required by its constitution and could therefore not legally hold another general assembly two weeks immediately thereafter. In any case, he presents evidence that the extraordinary meeting held on 16 and 17 December 2023 at Ggangu Muslim Primary School was illegal, given that it was called without adequate notice with an attached agenda.

In reply, the respondents rely on the deposition of Ms Babirye Yudaya, and whose deposition asserts the followings:

- 1) First, as members of the UMSC, the respondents have the capacity to petition the High Court regarding the unfair and prejudicial manner in which the affairs of UMSC are being conducted; secondly, the motion for review is contrary to the provisions of the law because the applicant already preferred an appeal to the Court of Appeal concerning the same matter; and, thirdly, the application is a disguised appeal. - 2) In view of the above, the Ms Babirye considers that the orders sought in the application are without merit. At any event, she makes the point that the application for review has been overtaken by events, seeing as the judgment of 12 December 2023 has already been executed via implementation of the resolutions passed on 16 and 17 December 2023. - 3) Furthermore, the applicant has not shown any ground to warrant review and continue to stay on as officials of the UMSC in total disregard of the court order as well as the resolution of the Special General Assembly.

Ms Babirye's deposition also speaks to the fact that [His Eminence] the Mufti Sheikh Ramadhan Mubajje is in contempt of court owing to the following acts:

- 1) Refusal to vacate office and pave the way for investigations. - 2) Illegally occupying the office of Mufti of Uganda, thus interfering with the status quo and the pending investigations. - 3) Presiding over the impeachment of the former deputy Mufti and acting Mufti, Shiekh Ramadhan Ssemambo.

The respondents filed a supplementary affidavit in reply. However, the affidavit did not make any substantial averments over and above those already summarised in the affidavit in reply. The applicants also filed an affidavit in rejoinder to the respondent's affidavit and

supplementary affidavit in reply. However, besides challenging the affidavit for mentioning the wrong court and wrong case number, the applicant did not depart from its earlier submissions. Counsel also asserted that Babirye Yudaya lacked the capacity to swear an affidavit on behalf of other respondents because she did not attach any such authorisation.

# **3 Issues for determination**

All the parties filed detailed submissions as well as replies. I will refer where necessary to the contentions that were raised in the respective heads of argument. From the depositions and arguments of the parties, the following issues emerged for determination:

- *1) Is this court vested with jurisdiction to hear the application?* - *2) Does the application present sufficient grounds to justify the review of the judgment delivered by this court in Company Cause No. 002 of 2023?* - 3) *What remedies are available?*

This section deliberates on issue 1: *Isthis court vested with jurisdiction to hear the application?* The term 'jurisdiction' has been defined in various in statutes and judgments with reference to legal power and the authority of a court of law to competently adjudicate a dispute.⁵ It would appear that it is not in question that jurisdictional limits are intended to ensure certainty and orderliness in adjudication.⁶ There is no doubt that it is legally impermissible for a court to hear and determine a matter when such a court is not endowed with the power to do so.⁷ Jurisdiction is a creature of statute and must be exercised within the confines of the limits prescribed by law. For instance, Order 7 rule 1(f) and 11 cautions that a motion which does not disclose jurisdiction can in fact be dismissed.

#### *3.1 Three strands of the jurisdiction question*

In legal parlance, jurisdiction is of three kinds: geographical jurisdiction, pecuniary jurisdiction, and subject-matter jurisdiction. Subject-matter jurisdiction is governed by the law applicable to the subject matter under dispute, which usually prescribes that a specific court is mandated to hear and determine a specific kind of dispute. For instance, in *Testimony Motors Ltd Versus Commissioner Customs URA* HCCS No. 004/2011, the High Court declined to

⁵ See Bryan G (ed) *Black's Law Dictionary* West: Thomson Reuters (1999).

⁶ See *Rose v Jumo* HCT (Arua) C. Rev No. 0006 of 2015 per Mubiru J.

⁷ In *Bank of Uganda v Transroad Limited* (Civil Appeal 3 of 1997) [1998] UGSC 7, per Wambuzi CJ. In *Raphael Baku & Anor v Attorney General,* SC Const. Appeal No.1 of 2005, it was emphasised that jurisdiction must be exercised only where it is conferred by the law or a constitutive commercial transaction document.

exercise jurisdiction to interpret the East African Customs Management Act since the power to do so was exclusively the reserve of the East African Court of Justice.

Unlike the magistrates' courts, high courts are vested with unlimited original jurisdiction under article 139(1) of the Constitution. Yet while the delineation of circuits and divisions within the court system serves the purpose of orderliness, administratively it may limit the high court's power to hear and determine all of the disputes before it. ⁸ This is particularly true when a specially provided forum is in place in terms of the Constitution or a particular statute; in such cases, high court powers to hear and determine certain disputes may be exercisable only after the specialised adjudication body has made its final decision.⁹

# **4 Examination**

In the present case, Company Cause No. 002 of 2023 was filed, heard and resolved by the High Court of Uganda at Jinja. None of the parties objected to the jurisdiction of the Court, and neither did the learned judge refer the case to the High Court of Uganda at Kampala. When Miscellaneous Application No. 306 of 2023, Miscellaneous Application No. 307 of 2023, and Miscellaneous Application No. 309 of 2023 were referred to the Principal Judge, the Hon. Principal Judge decided to transfer all the applications to the High Court of Uganda at Kampala.

Upon transfer, Company Cause No. 002 of 2023 became Company Cause No. 008 of 2023, while Miscellaneous Application No. 306 of 2023, Miscellaneous Application No. 307 of 2023, Miscellaneous Application No. 25 of 2024, and Miscellaneous Application No. 309 of 2023 became Miscellaneous Application No. 0549 of 2024, Miscellaneous Application No. 0536 of 2024, Miscellaneous Application No. 0541 of 2024, and Miscellaneous Application No. 0548 of 2024.

## *4.1 Determination*

In my view, while any high court can exercise its original jurisdiction on any matter in any part of the country, prudence and orderliness require that certain matters be heard and determined in the geographical areas where the dispute arose, unless sufficient reasons to the contrary can

⁸ See the Judicature (Designation of High Court Circuits) Instrument, Statutory Instruments No. 94 of 2023, where Jinja high court areas of circuit include Buyende, Kamuli, Jinja, and Jinja City, and *not Old Kampala* (emphasis added). For example, whereas a judge stationed at the civil division of the high court may hear and determine a criminal dispute, it is not expected that such a judge will do so while sitting as a civil division judge, unless by an administrative instruction of the Hon. Principal Judge.

⁹ See Uganda *Revenue Authority v M/s Robo Enterprises (U) Ltd* SCCA No. 12/2004, per Tibatemwa J. There may be instances where parties subject themselves to an arbitration clause; in such cases, the parties can approach the court only after the award, and not before.

be demonstrated. It is my finding, therefore, that, considering the need for orderliness in high court trial management, and considering that the headquarters of the UMSC are in Old Kampala, as provided in article 2(1)(a) of its constitution, the transfer of all the applications from the Jinja High Court Circuit to the Civil Division of the High Court Kampala was proper.

Given the absence of any compelling reason for initially filing the petition for winding up the UMSC outside of Kampala, it would follow that, while it was not fatal to hear such matters outside of Kampala, the decision to hear and determine the dispute which is the subject of review did not align well with established legal principles and the precedents of this court. It therefore follows that this court is properly vested with the power to hear and determine the application for review even if the petition was filed, heard and determined in Jinja High Court Circuit.

This section now deliberates on the issue 2: *Does the application present sufficient grounds to justify the review of the judgment delivered by this court in Company Cause No. 002 of 2023?* As already noted, the uniqueness of the motion before me is that the decision which is the subject of review was made by a high court judge but sitting in a different circuit. It is therefore important to exercise a great deal of caution and not enter into the merits of the case: that would be the province an appellate court.

# **5 The law on review of a decision of court**

Order 46 rule 1 of the Civil Procedure Rules (CPR) is liberal in application, given that it can be invoked by any persons whose rights may have been affected by a court's decree. It is also noted that in terms of Order 46 rule 1, an application for review must be anchored one or more of the following five elements:

- new and important evidence has been discovered; - in getting the new evidence, extra care was undertaken by the applicant; - at the time of making the decision, the new and important information was not within the knowledge of, and/or could not have been produced by, the applicant; - *there was some mistake obvious on the face of record* (emphasis added); or - good reasons are in place to justify a review of the decision of the court.

SC Sarkar et al.,¹⁰ in interpreting the equivalent of Order 46 rule 1, highlight the following as essential considerations. The first is that it is preferred that an application to review a court's own decision be filed before the appeal is lodged. Secondly, where an application is filed before the appeal has been lodged, the court is still vested with the power to dispose of such an application even if the appeal has not been heard and determined. Thirdly, the filing of the appeal by any party does not affect the court's power to hear such a review. Finally, once an appeal has been heard, such a review must be discontinued. In essence, a review application cannot survive once an appeal has been lodged and heard.

These authors (SC Sarkar et al.) do not refer extensively to Order 46 rule (1)(b) of the CPR, which deals with the discovery of new, important matters of evidence. Essentially, under subrule (b) of rule 1, an aggrieved person may rely on the ground of the discovery of new information if

- the new information was discovered after due diligence; and - the new information was not within the aggrieved party's knowledge, *or was not provided by him or her at the time when the decree was made* (emphasis added).

The rules also strongly suggest that even if an aggrieved party does not qualify under any of the circumstances above, it is still possible for the court to consider a review if the facts of the case demand it. It is obvious to all the parties that the decree the subject of review was before another judge and in a different high court circuit, as discussed in section 4.1 of this ruling. This is why this present court is compelled to discuss the provisions of Order 46 rule 2 of the CPR.¹¹ The essence of the latter order is not that a different judge cannot hear and determine any application for review – what is probably envisaged by Order 46 rule 2 of the CPR is that a new judge may not correct typographical errors or mistakes arising from simple numerical mistakes. It is expected that the judge who passed the decree could on his or her own motion rectify such mistakes even without a formal application. It is emphasised here that a review under order 46 rule 1 of the CPR can be heard and determined by any judge for rectification purposes.

¹⁰ SC Sarkar et al. *Sarkar's Law on Civil Procedure* (vols 1 & 2) LexisNexis: New York (2012) 1592.

¹¹ Order 46 rule 2 of the CPR provides that '[a]n application for review of a decree or order of the court, upon some ground other than the discovery of new and important matter or evidence as is referred to in rule 1 of this Order, or the existence of a clerical or arithmetical mistake or error apparently on the face of the decree, shall be made only to the judge who passed the decree or made the orders sought to be reviewed'. ### *5.1 Rationale for Order 46 rule 1*

Courts in Uganda have discussed the rationale for Order 46 rule 1 in some detail, so there is no need to repeat here what has already been discussed elsewhere. It warrants emphasis, though, that in an application for review, all that is important is for the court that passed the decision, if it be convinced of the existence of sufficient reasons, to grant or decline to grant the motion. The rationale for review is generally to rectify possible mistakes in the decisions, and not to quash the entire decision.¹² Indeed, as noted by Byabakama J as he then was, whenever a court sits to review its own decision, it does not do so as an appellate court. All that a judge does is to check whether the conditions laid out in Order 46 rule 1 have been complied with. The role of the court while reviewing its own decision is therefore limited to making the 'relevant and necessary rectification and corrections sought'. ¹³ Notionally speaking, just because the decision is procedurally wrong, or simply because a court's decision presents evidence of the wrong application of the law or wrong exercise of discretion, this does not justify a review and may not pass the test under Order 46 rule 1.¹⁴

#### *5.2 Examination*

Courts are usually cautious in granting review orders, with great care taken to guard against reopening fully litigated disputes.¹⁵ In *Yusuf v Nokrach* (1971) EA 104, the East African Court of Appeal held that the expression 'sufficient reason' should be read *ejudem generis* to mean an error apparent on the face of the record and the discovery of new evidence or documents. As noted above, this court is fully aware that it is not sitting as an appellate court in this application. As I have always done in similar cases, I shall ensure that only those findings and orders that may pass the test of Order 46 rule 1 are reviewed. Any other findings that do not fall under the ambit of the framework for reviewing a court's own orders shall be dealt with in another forum. I therefore steer clear of any arguments that would seem to attempt to impeach the court's decision on the grounds of wrong interpretation of the law or wrong exercise of discretion. In my view, the application before me stands to be determined on account of an error apparent on record and not on any other grounds.

¹² *Hoima District NGO Forum & 6 Others v Murungi Catherine & 5 Others* Civil Misc. Application N0-Hct (Hoima)-12-Cv-Ma-0013 of 2013 [Arising from Civil Revision Application N0-0021 of 2013].

¹³ *Hoima District NGO Forum & 6 Others (ibid.).* Byabakama J as he then was, in relying on the case *Mapalala v Bristish Broad Casting Co-operation* [2002] 1 E. A 132 (Court of Appeal of Tanzania), clarified that a review order cannot overturn the final verdict.

¹⁴ *Ibid*.

¹⁵ See *Kampala Capital City Authority v Nibimara Charlese & 10 Ors* per SSekana J.

As for an error on the face of the record, it must be an evident error that does not require any extraneous matter to show its correctness. In *Touring Cars (K) Ltd v Munkanji* [2000] 1EA 260, the Court of Appeal held that the matter must not require any digging into any law or fact. Similarly, in *John Lubega & Paul Mbogo v UBC & Robert Kagoro* HCMA No.589 of 2019, the view of the court was that the error the subject of rectification should be so manifest and clear that no court could permit such an error to remain on the record.

# **6 Context**

Uganda's political history is characterised in part by religious tensions that have almost always led to civil strife. While there is no state religion in Uganda, there is a clear legal recognition of a diversity of religious beliefs and doctrines. The term 'religious diversity' refers here to the existence of different identified religious groups that have identifiable and unique characteristics. Worldwide, different groups of people have developed their own religious identities over time, such that we speak of Muslims, Hindus, Buddhists, African traditionalists, Christians, atheists, and pagans. Even within these religions, there are subgroups such as, in the case of Christians, Catholics, Protestants, Orthodox Christians, and Revivalists (*Balokole*). In Islam, too, there are numerous sects, such as the Sunnis, Whabbi, Ahmadiayya, Tabligh, Salafi, Berelve, Sufi, Deobandi and Shiites (*shia*). Usually the numerous sects arise not out of serious doctrinal differences but out of disagreement in the interpretation of the tenets of their common belief system, disagreements which can manifest themselves in conflicts.

The Constitution of Uganda in its amended form mitigates the risks that could arise from these religious conflicts in two main ways: first, by guaranteeing the right to religious freedom of every citizen and, secondly, by requiring that all expressions of difference must not only be resolved peacefully through established legal channels, but also be resolved in order to foster a broader nation-state.¹⁶

# *6.1 Examining the arbitral clause in the UMSC constitution*

Article 28(1) and (2) of the UMSC constitution is entitled '[t]he Muslim Arbitration and Conciliation Council (MAC)' and provides as follows:

(1) There shall be a UMSC Arbitration and Conciliation Council appointed by the Joint Session acronymed hereinafter as 'the MAC,' which shall have jurisdiction to hear all disputes among Muslims and between Muslims and

¹⁶ See National Objective Directive Principles of the State Policy (NODPSP) No. III & IV of the Constitution.

Non-Muslims filed by such non-Muslims relating to any issue, including the running of the affairs, management, interest and rights of the UMSC or its members, contract disputes and interpersonal relationships except electoral matters of the UMSC. (2) All members of the UMSC, save those who will have expressed their disclaimer in writing within 30 days of adoption of this amended Constitution by the General Assembly shall for all intents and purposes be deemed to have submitted to the jurisdiction of the MAC.

In essence, the UMSC constitution establishes an arbitral mechanism – the MAC – for resolving disputes concerning the management of Muslim affairs in Uganda. Article 28 of the UMSC constitution provides for a commitment to fostering unity and resolving conflicts amicably, emphasising arbitration and conciliation as alternative dispute-resolution methods.

The MAC's jurisdiction is broad, encompassing disputes among Muslims and between Muslims and non-Muslims that relate to:

- the management and operational matters of the UMSC; - contracts, interests, and rights involving the UMSC or its members; and - interpersonal disputes that fall within the purview of the council.

The expansive jurisdiction of the MAC entails that, other than for electoral disputes in regard to the UMSC, all disputes must be resolved by it.

# *6.2 Consequences of an arbitration clause*

The effect of a valid arbitral clause on the jurisdiction of the High Court has been the subject of much litigation. Section 9 of the Arbitration and Conciliation Act, Cap 5, bars any court from intervening in matters governed by the Arbitration and Conciliation Act, Cap 5, a view expressed in *EADB v Ziwa Horticultural Exporters Ltd* [1997-2000] UCLR 247. In the latter case, EADB had extended loans to the respondent and sought to wind up the respondent for failure to repay them. Okumu, J held that since the loan agreement provided for mandatory transfer of the case to arbitration, he decided to refer the parties to arbitration.

While it is accurate to argue that section 9 of the Arbitration and Conciliation Act, Cap 5, does not oust the jurisdiction of the High Court where there is a valid arbitral clause, the High Court is required as a matter of procedure to refer the parties to an arbitral system in accordance with the principle of freedom of contract.¹⁷ There are a few exceptions where the court may object

¹⁷ See *BankOne Limited vs Simbamanyo Estates Ltd* HC M. A No. 645 of 2020 (2021), where the court referred to arbitration processes because the parties had contracted to subject their dispute to an arbitral system. In *Power and City Contractors Ltd v LTL Projects (PVI) Ltd* HCT-CV-MA-0062/2011, the parties entered into a contract

to an arbitral process, especially where there are valid reasons in place not to subject the parties to an arbitral system. This is especially true where four considerations are proven:

- where there is an invalid arbitration clause; - where the arbitral clause is not contained in a valid agreement; - where the dispute was not within the scope of the arbitral clause; and - where a party will be prejudiced by the arbitral clause among others.¹⁸

#### *6.3 Determination*

In the present case, the UMSC constitution contains a valid arbitration clause, and the parties did not disclose any reason as to why they should not have been referred to the MAC. The decision to bypass the MAC and proceed directly to court appears inconsistent with the dispute resolution framework set out in article 28 of the UMSC constitution. While courts may play a role in ensuring fairness and addressing exceptional circumstances, adherence to the MAC's jurisdiction is essential in upholding the constitutionally mandated process. Resolving the matter within the MAC would not only reinforce the institutional integrity of the UMSC but also promote cohesion and respect for internal mechanisms in the Muslim fraternity in Uganda.

Notably, the matters in dispute in this case – alleged mismanagement, conflicts over governance, and resolutions passed at an extraordinary general meeting – fall squarely within the MAC's defined jurisdiction. By taking recourse to the High Court instead of exploring the arbitration process, the parties are evidently in breach of the clearly stated arbitral clause in article 28 of the UMSC constitution. By bypassing the MAC, the parties could very easily negate the UMSC constitution, the intent of which is to prioritise internal dispute-resolution mechanisms rooted in conciliation and mutual respect. It is also telling that the court orders arising out of the petition for winding up the UMSC resulted in the removal of His Eminency the Mufti of Uganda from office when he was not a party to the proceedings. This, to my mind, was a serious procedural breach that also points to the error apparent on record.

It is the determination of this court that to the extent that the court did not consider the provisions of article 28(1) and (2) of the UMSC constitution at all, when the umbrella

to be performed in Kabeiramaido District. However, the contract referred any disputes to the exclusive jurisdiction of courts in Singapore. Justice Musota referred the parties to arbitration in Singapore and stayed the proceedings in the High Court of Uganda.

¹⁸ In *Huadar Guangdong Chinese Co. Ltd v Damco Logistics (U) Ltd* HCCS No. 4 & 5 of 2012, the plaintiff contracted with the defendant to transport 250 bags of dried fish maws from Kampala to Hong Kong. The consignment was lost on its way to Mombasa. Justice Madrama held that the High Court cannot lose its jurisdiction to entertain the action if the plaintiff can show just cause why the proceedings should not be stayed or dismissed.

constitution of all Muslims in Uganda clearly preferred an arbitration process, an error on the face of the record emerged which has to be corrected. This reasoning is also in accord with emerging jurisprudence in this county in which courts invoke the religious question doctrine as the best way to address doctrinal disputes among the faithful, as noted in section 1.¹⁹

### *6.4 Explaining why consolidation was necessary*

On the court's own motion, and in terms of Order 11 rules 1 and 2 of the CPR, it has elected to consolidate all the applications with the present motion. It is my view that consolidation is appropriate in order to avoid multiplicity of litigation.²⁰ It is noted that the decision made in Miscellaneous Application No. 548 of 2024 of 2024 can ably dispose all six (6) other related applications listed below:

- 1) Miscellaneous Application No. 306 of 2023 and Miscellaneous Application No. 307 of 2023 *UMSC v Babirye Yudaya & 2 Ors*²¹ (now Miscellaneous Application No. 549 of 2024 and Misc. Application No. 536 of 2024, respectively) had also sought to stay the execution of the judgment and orders in Company Cause No. 002 and 2023. - 2) Miscellaneous Application No. 309 of 2024 *UMSC v Babirye Yudaya & 2 Ors*²² sought that the judgment and order of the High Court in Company Cause No. 002 of 2023 be reviewed, varied, and set aside. It also sought an order quashing all the proceedings and resolutions passed by the UMSC General Meeting held on 16 and 17 December 2023 at Ggangu Muslim Primary School. The application was heard by Justice Alexandra Nkonge Rugadya (Acting Principal Judge then), who referred the application back before the then trial court. - 3) In Miscellaneous Application No. 25 of 2024 *Hon. Ssewante Umaru and 15 Ors v Babirye Yudaya & Ors,*²³ the applicants sought to be added as parties (respondents to

¹⁹ See *Most Rev. Dr Samuel Kazimba Mugalu* (n 4). The religious-question doctrine takes the firm view that secular courts are incapable of resolving theological disputes. For details, see generally Lund C 'Rethinking the "religious-question" doctrine' (41) *Pepp Review* (2013-2014) 1013.

²⁰ The guidance in the decision of *Patrick Nkoba v Rwenzori Highland Tea Co & Another* (1999) Kalr 776 at 778 per Bamwine Ag J is that a trial court always needs to exercise caution before consolidating suits (applications) in cases where there are extreme differences in the defences and claims.

²¹ These applications were brought under section 33 of the Judicature Act; sections 64(e) and 98 of the Civil Procedure Act; and Order 43 rule 4(3) of the CPR.

²² The application was brought under section 33 of the Judicature Act; sections 82 and 98 of the Civil Procedure Act; and Order 52 rule 1, 2 & 3 of the CPR.

²³ The application was brought under article 126(2)(e) of the Constitution of the Republic of Uganda; section 98 of the Civil Procedure Act; section 33 of the Judicature Act; Order 1 rules 10 & 13 and Order 6 rule 19 & 31 of the CPR.

the main company cause). This application was registered afresh at the High Court Civil Division as Miscellaneous Application No. 541 of 2024.

- 4) There is also on record an order of this court stopping His Eminence the Mufti Sheikh Shaban Mubaje from performing any duties as Mufti of Uganda until further court orders. - 5) In Miscellaneous Application No. 73 of 2024, *UMSC v Hon. Ssewante Umaru & 15 Ors,*²⁴ which arose from Miscellaneous Application 25 of 2024, the application too sought for leave to appeal to the Court of Appeal against the ruling and orders of this court concerning the preliminary objection in Miscellaneous Application No. 25 of 2024. - 6) Finally, Miscellaneous Application No. 1299 of 2024, *UMSC v Sheik Shaban Mubaje,*²⁵ sought for contempt of court. The grounds of the application were that this court had granted, in open court, an order restraining the respondent from further conducting himself as, and performing the duties of, Mufti of Uganda. The contention has been that the order was executed and served on the respondent, but contrary to the court order, he continued to occupy the office of Mufti of the UMSC situated at Old Kampala, as well as attending and officiating at various ceremonies as Mufti. Given that the new office-bearers of the UMSC were restricted from executing their mandated tasks, they had as a result suffered economic loss, psychological torture, and mental anguish and stress. The following specific prayers are made: - a. that the respondent pays into court a fine of UGX 700,000,000 (seven hundred million Uganda shillings) for contempt of court, and a further UGX 6,500,000,000 (six billion five hundred million Uganda shillings) as general damages to the applicants for their injuries and inconvenience; - b. that the respondent pays the applicants UGX 500,000,000 (five hundred million Uganda shillings) as exemplary and/or punitive damages for contempt of court;

²⁴ The application was brought under article 126(2)(e) of the Constitution of the Republic of Uganda; section 98 of the Civil Procedure Act; section 33 of the Judicature Act; and Order 1 rules 10 & 13 and Order 6 rules 19 & 31 of the CPR.

²⁵ This application was brought under section 98 of the Civil Procedure Act; section 33 of the Judicature Act; and Order 52 rules 1 & 3 of the CPR.

- c. a permanent injunction preventing the respondent from further disobeying and/or violating the court order; and - d. interest on all court awards from the time of the award until full payment.

## *6.5 Dealing with contempt of court orders*

Before contempt of court orders can be taken out, there must be evidence of the existence of an order under the authority of the court; there must be evidence that the order was served or brought to the notice of the contemnor; there must be evidence of non-compliance with the order by the respondent; and there must be evidence that the non-compliance was wilful and *mala fide.*²⁶ The terms such as 'wilfulness', 'unlawfulness' and with '*mala fides'* on the part of the respondent become key ingredients for a finding for contempt of court orders.²⁷ There must be a strong inference to suggest that, in not complying with the court orders (and the outcome of the court orders), the respondent intentionally, contrary to the law, and with spite against the applicant, elected not to respect the court orders.

### *6.6 Determination*

The application for contempt of orders of this court largely relates to the High Court's judgment in Company Cause No. 002 of 2023 and its implementation. While there is clear evidence that there was an order of the court which was brought to the attention of the respondent, the findings already made in section 6.3 of this ruling suggest that there is no longer any order of court capable of being disrespected. In the result, all of the six (6) related applications, including the one dealing with contempt of court orders, must be dismissed.

The last section deliberates on the issue 3: *What remedy is available to the parties?* As already noted, applications of this nature are usually intended to correct mistakes and enable the parties to settle their rights in a proper and conclusive manner. Considering the findings already made, I hereby make the following orders:

1) This court is clothed with the requisite power to hear and determine the application for review and all the consolidated motions that are connected with it.

²⁶ See *Ssempebwa & Ors v Attorney General* [2019] 1 EA 549.

²⁷ See Bryan (n 5). *Black's Law Dictionary* defines the word 'willfully' with reference to a deliberate act intended to hurt another regardless of the consequences; 'unlawful' with reference to doing something that the law does not permit or approve of; and '*mala fides'* with reference to a deceitful act.

- 2) In view of a clear arbitral clause embedded in article 28 of the UMSC constitution, a clear error on the face of the record emerges which then must be corrected by this court. - 3) This court hereby reviews and wholly sets aside the judgment and orders in Company Cause No. 002 of 2023 for the reason already given. - 4) All the parties concerned should consider exploring the arbitral role of the MAC in terms of section 9 of the Arbitration and Conciliation Act, Cap 5, and article 28 of the UMSC constitution in order to resolve their disputes. - 5) All related motions that either sought to challenge or implement any of the orders of this court arising from Company Cause No. 002 of 2023 are hereby dismissed. - 6) No order is made as to costs.

**Douglas Karekona Singiza**

**Judge**

**03 January 2025**