[2016] UGCA 105

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## **CIVIL MISC. APPLN. NO. 26 OF 2016**

## (ARISING FROM MISC. APPL. NO. 19 OF 2016)

# (ARISING FROM HIGH COURT MISC. CAUSE NO. 0086 OF 2015)

### 1. UGANDA PEOPLES CONGRESS 2. THE UPC ELECTORAL COMMISSION

### **......... APPLICANTS**

### **VERSUS**

### 1. JOSEPH BBOSA

- 2. PROF. E. KAKONGE - **................. RESPONDENTS** 3. OTTO ISHEA AMIZZA

### **RULING OF THE COURT**

# **CORAM: HON. JUSTICE S. B. K. KAVUMA, DCJ**

### **Introduction**

### This is an application for Orders that: 15

1. An interim Order of stay doth issue staying the execution and implementation of all orders of the High Court made in High Court Misc. Cause No. 0086/ 2015 by way of restraining the Respondents and their agents/ servants or any organs, the 1^st Applicant's bankers, authorities or public bodies from acting on and enforcing the said orders or further restraining them from interfering with the activities and exercise of powers of the 1^st Applicants and its leadership under Hon. James Michael Akena his cabinet, pending the hearing and determination of the Applicant' application for stay of execution pending before this honorable court.

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2. The costs of this application be provided for.

The application is brought under Rules 2 (2), 6 (2) (b), 42 (2), 43 (l), 44 & 53 of the Judicature (Court of Appeal Rules) Directions S. I. l3-10. It is supported by the affidavit of Hon. James Michael Akena, dated 22"d January 2016.

### s Background

The background to the application is that on the 1't day of June 2015, the 2"d applicant, which is the Electoral Commission of the I't applicant, declared Hon. James Michael Akena, President- elect of the Uganda People's Congress (UPC), the I't applicant.

10 The respondents disagreed with that decision and the fiIed Miscellaneous Cause No. 0086 of 2015 before the High Court challenging Hon. James Michael Akenas's Presidency over the UPC.

The application was heard by the High Court (Yasin Nyanzi, -I). which made certain orders the execution of which is being sought to be stayed in in the interim

### 1s Grounds of the application

The grounds upon which the application is premised were stated briefly in the Notice of Motion and laid out in detail in the affidavit of Hon. James Michael Akena. In that affidavit, he averred, among other things, as follows:

. That the applicants herein and myself as the President of the ltt ²⁰ declared as such by the 2nd applicant are legally aggrieved and Orders made by the learned Hon. Mr. Justice Yasin JN I High Court Misc. Cause No. 008641 2015, as the said ruling and orders therein have the effect of revoking the electoral process conducted by the 2nd applicant, which led to my declaration as the Party President of the

I'tapplicant and further affects the cunent leadership of the l " applicant and all its activities including organization of the national elections.

- o That aggrieved by the said Ruling and Orders of the High Court, the applicants have already instructed his lawyers, Kyazze & Co. Advocates to appeal to this Court against the entire decision and orders of the learned High Court Judge, and they have already filed a Notice of Appeal in the High Court and lodged the same in this Honorable Court and have also applied for typed proceedings from the High Court to enable them prepare and file in this court, a Memorandum and Record of Appeal. - ' That the applicants have also filed a main application for stay of execution of all the orders of the High Court made in Civil Misc. Cause No. 00g6 of ²⁰¹⁵which main application is still pending in this honorable court and the relief sought in the main application for stay of execution, will be rendered nugatory if the orders sought herein are not granted, and the Respondent is allowed to proceed with the execution by way of causing the implementation of the said Orders. - o That the applicants seek to challenge in this court, the ruling and orders made in Misc. Cause No. 0086 of 2015, which have the effect of depriving 1" applicant under my presidency of the capacity to exercise the 1., applicant's constitutional mandate under my leadership and my cabinet and also interfere with the electoral process of the I't applicant and the National Electoral process and the relief sought in the main application for stay of execution and the appeal will be rendered nugatory if herein are not granted, and the respondents are allowed to the implementation of the High Court Orders. the sought - That by the time the Orders of the High Court were made, the newly elected leadership of the l" applicant under my presidency had already been o

communicated to and sanctioned by the National Electoral Commission, which had also communicated to the Party's Bankers Orient Bank (U) Limited and Barclays Bank.

- o That the status quo of the leadership of the I't applicant under my presidency and my cabinet had also been sanctioned by the High Court in HCMA No. 4l2l 2015 arising from civil Suit No. 238 of zots, which dismissed an application for a temporary injunction that sought to unseat the leadership of the I't applicant under my presidency and cabinet and funher sought to reinstate the leadership of Amb. Olara Otunnu. - ' That since that order, the l " applicant, my presidency and my cabinet and all party organs and institutions have continued to operate the ltt applicant,s activities and also operate the 1" applicant's Bank Account at Orient Bank and Barclays Bank, which activities are now being rendered inoperative by virtue of the orders of the High Court in the subsequent ruling in HCM Cause No.0086 of 2015, which is the subject of the challenge in the appeal to this honorable court, - ^oThat the applicant's main application for stay of execution and the appeal to this honorable court have high chances of success, yet the subject matter of the appeal being the legality of the exercise of the powers of the UpC party by the I't applicant and all its activities under my leadership and if the orders of the High Court are fully implemented, the applicants' main application and the appeal will be rendered nugatory as the orders sought therein will have been overtaken by events. - That the applicants and the entire leadership of the I't applicant irreparable damage/ loss if the order sought herein is not granted their current leadership will have been deprived of their capacity to exercise Party powers and their constitutional mandate, and the respondent in a

implementing the orders of the High Court will be allowed to conduct fresh elections and create new leadership, interfere with the current management of the 1^st applicant's affairs before the main application and the appeal are heard and determined, whereof all the orders sought in the main application and the appeal will be rendered nugatory, and the new status quo that will have been created will be irreversible even after success of the main application and the appeal.

- That given the nature of the orders made by the learned Judge in Misc. Cause No. 0086 of 2015, coupled with the relentless efforts by the respondents to cause the implementation of the orders with the relevant public authorities and the UPC Party organs and the threat by the said organs to act on the orders unless stayed, there is an imminent and serious threat of execution by way of causing the Electoral Commission, Party Bankers or Orient Bank (U) Limited and party organs to disregard the leadership of the $1^st$ applicant and the exercise of the powers of the $1^st$ applicant and also to organize fresh elections for the 1^st applicant's Party Presidency, whereof it will be legally and practically impossible for the applicants to protect the relief sought in the main application and the appeal. - That the ruling and the orders made by the learned Judge, which the applicant is appealing against has the effect of irregularly resurrecting the former leadership of the 1^st applicant under Amb. Olara Otunnu who ceased to be the UPC Party President upon the ascendency to the Presidency of the 1^st applicant by Hon. James Michael Akena and has since joined the GO Forward campaign trail of Hon. Amama Mbabazi under the TDA umbrella. - That the applicant's main application and appeal raise pertinent questions of law and fact meriting adjudication especially questions relating legality of the orders made against Hon. James Michael Akena, who was not

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party to the Cause, orders made outside the pleadings and without any amendment to the pleadings, failure by the learned Judge to make appropriate orders premised on his findings, which are equally challenged on appeal, the legality and regularity of the orders having the effect of restoring the leadership of Hon. Amb. Olara Otunnu, outside the pleadings, granting orders not sought by the parties in their pleadings.

- ' That the applicants were unable to make the application for stay of execution at the High Court immediately after the delivery of the ruling as the applicants then lawyers could not immediately access and internalize the ruling so as to advise the applicants on the next appropriate recourse, neither could they obtain an interim order of stay before the Registrar of the High Court hence the application in this court. - ' That in order to avert such execution by way of implementation of the orders of this, the High Court which has the effect of reversing the status quo obtaining in the leadership of the I't applicant and to protect the relief sought on appeal, I have been advised by \*y said legal counsel that in a matter where the applicants are exercising an unrestricted right of appeal to this court, it is peninent for the applicants to protect their right of appeal and the relief sought in the main application for stay of execution and the appeal, by fi ling this application. - ^oThat it is just and equitable that this honorable courr be pleased to grant an order staying the execution and implementation of all orders of the court made in Misc. cause No. 00g61 zol5 in the manner and herein above pending the hearing and determination of the honorable court. a

### **Affidavit in reply**

In reply to the application, an affidavit in reply dated 8^th February 2016 was sworn by one Joseph Bbosa., the 1^st respondent. In his affidavit, he averred, among other *things*, that: $\frac{1}{2}$

The trial Judge allowed the application in part with declaration that; the decision of the UPC Electoral Commission that declared Hon. James Michael Akena be quashed by issuance of an order of certiorari against the same.

The decision of the 2^nd applicant that declared Hon. James Michael Akena $\bullet$ President- elect is null and void for violating the UPC Constitution.

- The election of Hon. James President of UPC subsequently by the Delegates Conference was illegal, void and of no legal consequence for violating the UPC Constitution. - The trial Judge also declined to award costs and an order of fresh election but advised parties to be guided by the decision of Justice Musota in Misc. Cause No. 36 of 2015. - He is advised by his lawyers M/s Kavuma, Kabenge& Co. Advocates that since the Orders granted by Hon. Justice Yasin Nyanzi were mere declarations, and the same are not executable and there are no steps whatsoever taken by the respondent to execute the same. - That there is no imminent threat of execution of the orders of the trial court $\bullet$ taken by the respondents that warrant grant of an interim stay of execution. - That in specific reply to paragraph 7 of the affidavit in support of the application, HCMA No. 412/ 2015 was filed by among others, the 1^st applicant against Hon. James Michael Akena on 30^th day of October 2015 but the same has since been withdrawn.

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$20$ - The applicants are seeking for orders against bankers, authorities and public bodies which are not even parties to the application and this makes the application untenable. - This application lacks merit and he prays that the same be dismissed with costs.

## **Representation**

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At the hearing of the application, the applicants were represented by Mr. Kyazze Joseph and Mr. Galisonga Julius, counsel for the applicants, while the respondents were represented by Mr. Kavuma Kabenge appearing with Mr. Goloba Mohammad, counsel for the respondents.

## The case for the applicants

Counsel for the applicants observed that while there was need for the main application to be fixed for hearing, he asked this Court to pronounce itself on the position of the applicant's Bank Account held in Orient Bank that was closed.

#### The case for the respondent 15

Counsel for the respondent argued that the issue of the bank account was the subject of Civil Suit No. 80 of 2016in the High Court which is being heard by Judge Alvidza. He stated that inviting this court to take any position in respect to that account would tantamount to involving this Court in a matter that was being actively considered by a court of original jurisdiction.

Counsel further observed that there were two parties claiming to resent the Uganda People's Congress and much as this court directed that the mediated or done the reconciliatory way, nothing has happened since. He thus

contended that it is in the best interest of the Uganda People's Congress and the individual persons claiming there under to have the appeal determined expeditiously

### Court Ruling

5 I carefully listened to and have considered the submissions of counsel for the parties. With regard to the question as to whether this Court has jurisdiction to entertain this application, especially with regard to the question of the bank account in issue, Article 126 (z) (e) of the Constitution provides:

> o'(2) ln adjudicating cases of both a civil and criminal nature, the courts shall' subject to the law, apply the following principles\_

(e) substantive justice shall be administered without undue regard to technicalities."

Section 98 of the civil procedure Act, cap 71 provides:

"Nothing in this Act shalt be deemed to limit or othenuise affect the inherent power of the court to make such orders be necessary for the ends ofjustice or to prevent abuse of the court.,'

Rule 2 (2) of the Judicature ( provides: t Court of Appeal Rules) Directions S. I. 13-10

"Nothing in these Rules shall be taken to timit or othenvise affect the inherent power of the court, or the High court, to make such orders as may be necessary for attaining the ends of justice or to prevent abuse of the process of any such court, and that power

shall extend to setting aside judgments which have been proved null and void after they have been passed, and shall be exercised to prevent abuse of the process of any court caused by delay.r'

5 On the basis of the above authorities, Court finds that it may exercise its discretion under Section 98 of the Civil Procedure Act (Supra) and Rule Z(2) otthe Court of Appeal Rules backed by Articles 126 2(e) (supra) to make such orders as are necessary for the attainment of justice. The justice of this application, in its peculiarity, requires that the I'tapplicant's activities should not be paralysed by disagreements between some sections of the party pertaining to its leadership. The Party interests should not be sacrificed at the altar of those said disagreements. It should be allowed, in the interim, to carry out its basic activities and to solicit whatever funding it can legally access. 10

The Uganda People's Congress is one of the oldest mass political parties in the country which, over time, has actively played important roles in the public life of this country. These facts, I am prepared to take Judicial Notice of.

with the aforesaid background in mind, I proceed to examine the issue whether there is, before court, enough evidence to support a grant to the applicants of the orders sought through this application.

The law governing applications for interim orders of stay of settled. In Hwan sung Industries Ltd v Tajdin Hussei court civit Application No. g of 200g, okello, JSc (as he 20 now well preme !l

> "For an application for an interim order of stay, it suffices to show that a substantive apprication is pending and that there is ^a serious threat of execution before the hearing of the pending substantive apprication. It is not necessary to pre-empt

# consideration of matters necessary in deciding whether or not to grant the substantive application for stay.,,

In the instant application, there is a Notice of Appeal filed in Court attached to the affidavit in support of the Application as annexture 'A'. There is, therefore, an Appeal pending in this Court.

According to paragruph 4 of the affidavit in support of the Application, the applicants filed a main application for stay of execution in this Court. There is, therefore, a main Application for stay of execution pending before this court. Indeed that much is not contested. The first requirement for the grant of an interim order is, therefore, satisfied.

As to there being an imminent threat of execution, this court on the 9,h February 2016 ordered counsel for the parties to establish the status of the lst Applicants Bank Account at the Orient Bank. The reports received by court following that order indicate that the said Bank account might have been frozen as far back as the 15th day of January 2016.

Further, by advertisements in the local print media, the faction of the Uganda,s People's Congress which challenges the party's leadership claiming to have been elected into office by the pffiy, has convened an extra ordinary the party's National council to take place at Mukono on the l0th take judicial, notice of this state of affairs. 16. I

I am persuaded, therefore, that a process of executing the challenged by the applicants in the instant Application is ongoing and there is ^a real threat of such execution being completed before the hearing of the main application for stay of execution. That would render the main Application for stay High orders

of execution pending before this court nugatory. The second requirement in justifying a grant of interim orders of stay of execution is, therefore, too, satisfied.

In the result, court is persuaded to allow this application on the following terms and orders.

- 1. An interim order of stay is hereby granted staying the execution and or implementation of all the orders of the High Court made in High Court Miscellaneous Cause No. 00086/2015 or any of them by restraining the respondents, their agents/servants or anybody or person claiming under them or any of them, or any authorities or public bodies from acting on and or enforcing the said orders or any of them and further by restraining them or any of them from interfering in the activities and exercise of authority or power of the 1^st Applicant and its leadership under Hon. James Micheal Akena and his Cabinet including giving directions for operating Bank Accounts for the 1^st Applicant in particular the defreezing of the $1^st$ Applicant's Bank Account at Orient Bank with or without naming new signatories thereto to enable the 1^st Applicant to effectively manage and run its affairs until the main application of stay of execution perding before this court as Misc. Application No. 20 of 2016 shall have been heard and finally determined or until such other or further orders of this court shall have been given in that behalf. - 2. The Registrar of this Court is directed to fix the hearing of Misc. Application No. 19 of 2016 without delay.

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3' The costs of this Application shall abide the outcome of the main Application, the said Misc. App. No. I 9 of 2016.

5 ^fso order. -k Dated at Kampala this day of... ²⁰¹⁶


DEPUTY CHIEF JUSTICE