xTHE REPUBLIC O F UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
CIVIL DIVISION
MISC. APPLICATION NO. 445 OF 2013
(Arising from Misc. Cause No. 362 of 2013)
IN THE MATTER OF TRIBUNAL SET UP BY THE MINISTER RESPONSIBLE FOR KAMPALA TO INVESTIGATE THE PETITION FOR REMOVAL OF THE APPLICANT AS LORD MAYOR OF KAMPALA CAPITAL CITY AUTHORITY
LUKWAGO ELIAS
LORD MAYOR, KAMPALA
CAPITAL CITY AUTHORITY :::::::::::::::::::::::::::::: APPLICANT
VERSUS
1. THE ATTORNEY GENERAL
2. THE TRIBUNAL INVESTIGATING
A PETITION FOR THE REMOVAL OF
THE LORD MAYOR OF THE KAMPALA
CAPITAL CITY AUTHORITY :::::::::::::::::::::::::: RESPONDENTS
BEFORE: HON JUSTICE NYANZI YASIN
RULING OF THE COURT
BACKGROUND
The background to this application is well reflected in the documents the parties attached to their pleadings. Annexture D to the affidavit of the applicant showed that on the 15th day of May 2013, seventeen counselors pursuant to S. 12 (13) (a) and (b) of the Kampala Capital City Authority Act (Herein after called KCCA Act or the Act) petitioned the Hon. Minister for Kampala Capital City. The subject of the petition was the removal of the Lord Mayor from the office of the Lord mayorship.
The petition stated three clear grounds upon which it was founded. Those grounds are:-
Abuse of office
Incompetence
Misconduct or misbehavior.
After consultation with the Attorney General and the Chief Justice the Honourable Minister constituted a Tribunal for the purpose of S. 12 of the Act. According to annexture “D” to the affidavit of Hon. Minister Frank Tumwebaze in reply the members of the Tribunal were Hon. Lady Justice Catherine Bamugemereire as the Chairperson, Mrs Jeska Ocaya Lakidi member and Mr. Alfred Oryem Okello member.
The Tribunal carried out the investigations between June – November 2013 and presented its findings to the Honourable Minister. The report is attached to the affidavit in support by the applicant marked annexture “N”. According to annexture “J” to the affidavit of the Hon. Minister he received the report on the 14th day of November 2013. On the same day, the Minister informed the parties concerned and provided copies of the report.
Without going into the details of the report which is not part of these proceedings, the findings of the Tribunal were that the applicant was guilty of all the charges brought against him. The applicant pleaded that he was in addition found guilty of charges which were outside the petition presented to the Hon. Minister.
(a) It appears the applicant was aggrieved by the findings in the report. Hence on the 20th day of 2013 he filed judicial Review proceedings vide Misc. Cause No. 362 of 2013 seeking orders that would invalidate the report. That application is pending before this court. In addition the applicant filed under misc Cause 362 of 2013, Misc Application No. 445 of 2013 which is the present application.
6(b)
In the present application the applicant seeks interim injunction against the Attorney General preventing him, or for that matter the Hon. Minister, his agents and or servant and all persons acting under his authority, from convening a meeting, discussing in the meeting and acting upon the report of the Tribunal by among other ways voting on it.
On the 21.11.2013 the Acting Head of this Division allocated the hearing of this application to me and fixed it on the 25.11.2013 at 10.00. According to annexture “L” to the affidavit of the Hon. Minister, he wrote a letter headed “Notice of meeting” on the same day the 21.11.2013 to the applicant and the Authority. This notice was for a meeting of the Authority to be convened for purposes of S. 12 (17) of the Act. While the court hearing for the application to stop the meeting was fixed at 10.00 am of the same day, the Hon. Minister fixed the meeting at 09.00 am.
It appears due to the above development the applicant on 22nd November, 2013 filed Misc application 454 of 2013 to get a court relief by way of an interim order to stop the meeting at 09.00 am so that this application is heard at 10.00 am.
At about 8.15 am the Deputy Registrar of this court in writing asked for my guidance as to how and what to do with the application. For purposes of clarity I will reproduce both the request for guidance by the Deputy Registrar and my reply.
25.Nov.2013
My Lord,
You are holding M/A 445/2013 at 10.00 am. There is information on this court file to the effect that this meeting is called at 9.00 am hence this MA 545/2013. The intended meeting may render the purpose of MA 445/2013 nugatory.
I am seeking your guidance on the matter”
“ signed DR”
I read the above minute and replied as below.
“Proceed to consider this exparte matter for reasons stated, in order to allow court time to hear the application at 10.00 am. I am of that opinion in order to protect the integrity of courts of judicature”
Signed - Judge
25/11/2013 at 8.20 am
Before I issued that directive of guidance I considered the fact that from 8.15 am to 10.00 am there was only one hour and 45 minutes. I deemed it impracticable to hear the application interparty. Behind my mind I considered the provision of O. 52 r2 which for purposes of clarity I will reproduce. It is headed “Notice to party”.
O.52 r 2 provides
“No motion shall be made without notice to the party affected by the motion; except that the court, if satisfied that the delay caused by proceeding in an ordinary way would or might entail irreparable or serious mischief, may make any order ex parte upon such terms as to costs or otherwise, and subject to such undertaking, if any, as to the court may seem just, and any party affected by the order may move to set it aside.” (emphasis is mine)
As I have already stated I deemed it that the remaining 1.45 minutes would not allow Misc. Application No. 454/2013 to proceed in an ordinary manner and if no order had been made serious or irreparable mischief would result. In my view that is what O.52 r 2 is meant for. The order refuses motions without notice to the affected parties but creates exceptions. My view was that at that time this was exceptional situation with two important matters both occurring at the same time about the same subject.
The absurdity of the matter was, the executive was holding a meeting to remove the applicant and the applicant was at the judiciary seeking an order to stop the same meeting. That is the exceptionality in this case.
At 10.03 am this court started hearing Misc. 445/2013. At that time Hon. Katuntu Abdul who led the legal team of the applicant informed court that the Deputy Registrar had issued an order stopping the meeting intended to be held at 9.00 am. I recorded him. Mr. Martin Mwambustya who represented the Attorney General asked to go on record that the order was granted ex parte despite his presence. I also recorded him. It was however at that time not intention of this court to go into that contest. I only recorded the parties and I advised them to proceed with the matter before me.
There were also comments about service of the order upon the parties. I refused to be concerned with the proof or disproof of service. I was convinced that an order stopping the meeting had been issued. The matter of service was not for this court to decide. The court started at 10.00 am and ended at minutes passed 1.00 pm. Neither the applicant nor the Attorney General informed court of the status of the meeting that court had stopped by order of court.
Given the above background I proceeded with application on the premises that this court issued an order stopping the meeting and hence this ruling. I now turn to the presentation of the application.
- The applicant was represented by the following Advocates:-
Hon. Abdu Katuntu who led the legal team
Mr. Caleb Alaka
Hon. Medad Segoona Lubega
Mr. Lumu Richard
Mr. Chrisestom Katumba
Mr. Julius Galisonga
Mr. Samuel Muyizzi
and
Mr. Jude Mbabali
Mr. Mwambustya Martin, State Attorney represented and acted for the Attorney General
- Hon. Katuntu and Mr. Caleb Alaka presented most of the applicant’s case. They stated that the application was brought under S. 14 and 33 of the Judicature Act, S. 98 of the Civil Procedure Act and O. 52 r 1,2 and 3 of the Civil Procedure Rules. The application sought orders to restrain the Minister in charge of Kampala Capital City , his agents and/or servants and all persons acting under his authority from
Acting on the report
Discussing the report
Meeting upon the report
Voting to remove the applicant from office based on the report of KCCA Tribunal (2013).
That is the gist of the orders in clause (a), (b) (c) and (d) of the motion.
- They gave the grounds of the application as listed in the motion. The gist of clauses in ground a, b, c, d ,e and f can be summarised as below:-
That the applicant had filed in this court Misc. Cause No. 362 of 2013 for Judicial Review of the contested report having been dissatisfied with the findings of the Tribunal.
That the applicant’s application has high chances of success.
That on the 19.11.2013 the Electoral Commission conducted election of councilors representing professional bodies to KCCA to fully constitute the Authority for the sole purpose of participating in the Authority meeting for the removal of the applicant.
That unless the respondent were restrained from acting on the report of the Tribunal, the applicant is likely to suffer irreparable damages as he is likely to be removed from the office of the Lord Mayor in an irregular manner.
- The application was supported by the affidavit of the applicant supporting the grounds in the motion. The relevant paragraphs shall be referred to in this ruling where need arises.
- The Attorney General replied to the application opposing it through the affidavit of the Hon. Minister Frank Tumwebaze filed in this court on the morning of 25.11.2013. The gist of the Attorney General’s response is that the application has no ground on which it is premised.
It is premature as no resolution had been passed by the authority.
It is based on grounds which this court has already adjudicated upon and therefore res judicata.
That there was no breach of natural justice rules as the applicant was heard, he gave evidence and called ten witnesses.
That the applicant has alternative remedies in the Act including presenting a defence to the authority during the meeting and appealing if the vote has passed been against him.
That the election of more councilors was provided for under the law, see S. 6 of the Act and cannot be a ground of the motion.
That the balance of convenience was in the favour of the respondent as the meeting to vote was statutorily to be carried out in fourteen days.
That the Minister having called the meeting to convene on 25.11.2013 the application is overtaken by events.
- I must say that during the presentation of this application both sides were tempted to argue as if they were handling the main application. As court I will limit myself to what an application of this nature requires.
- Before court grants injunctive reliefs a party asking court to do so must fulfill what cases like HUMPHREY MZEYI Vs BANK OF UGANDA Constitutional Petition No. 1 of 2013 (unreported) state. That there is a prima facie case with high chances of success. That it will suffer irreparable damage/loss if the order is not granted and in case of doubt by court the matter is resolved on a balance of convenience.
- In my view the best position applicable to this case is stated in the case of KIYIMBA KAGGWA Vs ABDU NASSER KATENDE 1985 HCB 43 where Odoki J (as he then was) held as below:-
That the granting of a temporary injunction is an exercise of Judicial discretion. Its purpose is to preserve the status quo until the questions to be investigated in the suit are finally disposed of.
That the condition relevant to the grant of the application are
That the applicant has a prima facie case with a probability of success.
That the applicant might suffer an irreparable loss that would not be adequately compensated by an award of damages.
That when court is in doubt it decides the application on the balance of convenience.
See also ROBERT KAVUMA Vs HOTEL INTERNATIONAL LTS SC CA NO. 8 OF 1990 1993 KALR 73 per Oder JSC (RIP)
- Is there a status quo to protect?
Mr. Alaka and Hon. Katuntu argued that in paragraphs 1 and 2 of the applicant’s affidavit he disclosed the status as the Lord Mayor of the Capital City and that the effect of the subsequent several paragraphs was that there was an actual threat to remove him from that office. They concluded that that was the status quo court had to protect.
- In reply Mr. Mwambutsya for the Attorney General disagreed. He emphasized that before an injunction is granted there must be a purpose it will serve. He referred this court to its recent decision in HUMAN RIGHTS NETWORK FOR JOURNALISTS (U) LTD & ANOTHER Vs UCC & ATTORNEY GENERAL Misc. Application 81 of 2013. He argued that relying on paragraph 32 of the affidavit of the Hon. Minister in re reply that the moment the Minister wrote annexture “L” to convene a meeting the applicant’s status quo ended. There is nothing the applicant would stop as the Minister has called the meeting. The court order if issued would serve no purpose.
- Annexture “L” is a short letter headed “Notice of Meeting”. The relevant part is its last paragraph which reads:-
“You are hereby requested to convene on the 25.11.2013 at 9.00 am in the Kampala Capital City Chambers”.
It was written to the Lord Mayor and the Authority councilors.
- Annexture “L” as the Minister correctly stated was written in conformity with S. 12 (17) of the Act. According to the pleadings the applicant sought to restrain the Minister not only from convening the meeting but discussion of the report in the meeting and voting upon it. These actions seem to be emboded in S. 12 (18) which follows 12 (17) under which the minister wrote and they appear to be subsequent to the Minister’s writing. S. 12 (19) is the reason why the Minister gave notice of the meeting to the applicant. He is permitted to attend and defend himself or be represented. All these actions had not taken place by the time the Minister wrote the notice for the meeting. For those reasons I conclude that the applicant has a status he seeks to protect and the Minister’s writing only executed the obligation under S. 12(17) but left others threatening the applicant.
- Whether the applicant has a prima facie case with chances of success.
Mr. Mwambustya for Attorney General vehemently argued that the applicant has no case that can succeed. He relied on paragraphs 26, 27, 28, 29 and 33 of the Hon. Minister’s affidavit. He argued the points below:-
That there is no decision to be reviewed.
That the Attorney General has not been served with the main application nor has it been fixed. He relied on this court’s decision in HUSSEIN BADA Vs IGANGA DLB & 9 OTHERS Misc. Application No. 479/2011.
That the applicant has alternative remedies he can pursue. That under S. 12 (19) he can defend himself and under S. 12 (20) he can appeal to the High Court if the vote to remove him from office is passed.
That the application is premature as no motion is passed.
That the petitioners are not party to these proceedings.
That the grounds upon which the application is premised were resolved in Misc Cause 281 of 2013 between the same parties. He concluded that the matter was res judicata. He invited court to find that the applicant is abusing court process by inviting it to re-investigate those grounds. This particular argument was supported by paragraph 33 of the affidavit in reply and annexture ‘H’ that was attached. He argued that in that judgments questions relating to:-
Propriety and constitution of the Tribunal.
Evaluation to the Petition by the Minister before meeting the applicant
The relevance of the opinion of the Attorney General.
The absence of the statutory instrument establishing the Tribunal.
Whether the proceedings before the tribunal were irregular.
Were all resolved and cannot be tried again.
- Mr. Alaka, Hon Katuntu and Hon. Medard Segona elected to answer the Attorney General in rejoinder. Their reply touched the question below;
Res judicata
That there are alternative remedies.
That the matter is speculative and premature.
- In submission Hon. Katuntu conceded on res judicata that these are aspects of the application that are res judicata by reason of the court judgment attached to the affidavit and marked ‘H’. However jointly with Mr. Alaka and Hon. Segona they strongly submitted that some other aspects are not res judicata and are severable from those affected. They cited,
The alleged bias by the Tribunal.
The Constitution of the authority and interpretation of the relevant sections of the Act applicable.
The exceeding of the scope investigation that court allowed the Tribunal to carry out in the case the applicant instituted (the same annexture “H”).
They also emphasized that by the time Miscellaneous Cause No.281 of 2013 was decided by Justice Zehurikize, there was no report by the Tribunal and now there is one. That Justice Zehurikize could not have decided conclusively on a report that was not in place.
- To begin with, I agree with Mr. Mwambutsya that all the aspects he identified as conclusively decided are res judicata.
The matter was between the same parties and the same issues were being presented to be re – investigated by the same court. To that extent the Attorney General was right. No wonder that Hon. Katuntu saved court’s time and conceded.
- It is however also true as the Applicants argued that some aspects to the application were not decided. They are new and the Judge never considered them and he could not have done so.
I listed those ones above and need not repeat them, nor am I required to go into their details suffice to say that they are matters that deserve court’s investigation. In all I conclude that not all aspects of the applications were conclusively decided and they are severable from those that were decided.
- On the existence of alternative remedy Mr. Alaka argued that there are not a reason for court not to exercise its discretionary powers. He cited to the court the decision of the Supreme Court in National Union of Clerical, Commercial & Technical Employees Vs National Insurance Corporation [1994] KALR 315 where the court held:
“the question whether a court should invoke its inherent powers in a given case is a matter of court’s discretion to be exercised, judicially and the availability of an alternative remedy ………….is only one of the factors to be taken into account but does not limit or remove the court’s discretion.”
- The above case is the true position of the law where it is applicable. With respect Mr. Alaka misunderstood the Attorney General’s argument. The argument was that, where there exists alternative remedy, courts do not or are not quick to grant judicial review remedy. That is the reason why Mr. Mwambutsya cited S.12 (19) and (20) of the Act which give the Applicant other remedies.
- However, the pleadings before court show that the Applicant disputes the procedure in which the report was obtained and that is the reason why he opposed the Authority from acting on it. The remedy in S.12 (19) and 12 (20) are available when the report is being discussed and acted upon. There is no remedy to stop the Respondent from acting on the report under the Act. In my view the only remedy the Applicant has, if he wishes to stop the Respondent from acting on the report is judicial review.
- On the question that the application is speculative and premature as there is no evidence of a motion under S.12 (18) of the Act, Mr. Alaka replied that the Applicant’s affidavit logically showed a process being undertaken by the Respondent to remove him from office. He argued that the affidavit showed acts being done in a hurry to remove his client from office. He referred to paragraphs 31, 32, 33 and 34 of his affidavit in support to the application.
38 – Mr. Mwambutsya wanted evidence of a motion under S.12 (18) of the Act. One wonders how the Applicant could get such evidence. Under S.12 (17) on the 21.11.2013 the Minister called a meeting to take place on 25.11.2012 for purpose of S.12 (18) that is to say to make a motion for resolution for the removal of the Applicant. According to the Attorney General it is only after the motion is passed and there would be evidence for the Applicant would come to court is an action that is not speculative. Perhaps that would be one of the risky choices the Applicant had but he did not choose it. He also had as choices like coming to court to stop the motion. That cannot be said to be speculative when the law permits it. I have already said the only available remedy to him is judicial review. I so find.
39 – There are other aspects the Attorney General argued to prove that there is no case that can succeed but the Applicants did not comment on them in their rejoinder. As court I must make a comment on them.
40 – The Attorney General argued that there was no decision to be reviewed. I do not agree. The subject of judicial review here is the report which is already produced. S.12 of the Act gives a sequence of events one following the other if read correctly it is shown that at a certain stage the Tribunal makes finding and the Minister receives those findings in form of a report. In my view the report would constitute a decision to be challenged by any aggrieved party by way of judicial review.
41 – The Attorney General also argued that the petitioners are not parties to the proceedings yet they would be affected by the order.
I have read the pleadings and found that the way they are structured anybody acting as the agent or under the authority of the Attorney General was covered. By virtue of annexture “L” the affidavit of the Hon. Minister, he wrote to the Applicant and the Authority Councilors who are the Petitioners to attend a meeting to remove the Applicant. My view is that although not by name or title the present proceedings referred to and concerned the Petitioners and the Attorney General effectively represented them as a party.
42 - Another strong argument by the Attorney General was that the main application had not been assigned to a Judge and no date has been given for hearing.
Similarly that the main application has not been served on the Attorney General. The Attorney General rightly cited the authority of HUSSEIN BADDA VS IGANGA DLB & 4 ORS Miscellaneous Application No.0499 of 2011. At Page 11 of his typed Ruling the learned Judge had this to say:
“For an application for judicial review to be capable of giving rise to an application for temporary injunction it must be properly before court. An application is valid when it has been signed by the Judge or such an officer as he or she can appoint and it is sealed with a seal of the court within the meeting of Order 5 Rule 1 and 5 of the Civil Procedure Rules.
The application is by its nature a summons issued by court requiring the Respondent to attend court on the appointed date and time. It becomes valid only after it has been given a date signed and sealed. It is after the above has been done by court that the application is capable of validly giving rise to another application.”
43 – The above position of the law was followed by my sister Judge Hellen Obura in SOROTI M.C. VS PAL AGENCIES (U) LTD Miscellaneous 181 of 2012 (un reported).
44 – In the present case the main application is Miscellaneous Cause No.362 of 2013. It meets the requirement that it is signed and sealed. It is also according to the minute signed by Justice Elizabeth Musoke as the Acting Head of the Civil Division allocated to me as the trial Judge.
45 – The concern of the Attorney General that remains valid is that it is not allocated a hearing date. It is on this point that I would with great respect differ from the decisions of my brother Judge Zehurikize and Sister Judge Hellen Obura.
46 – My first reason is that an application is sort of a summons to parties but the party do not play any role in the allocation of hearing dates practically speaking, that is a matter controlled by the Deputy Registrar together with his Judge or the Clerk to the Judge.
47 - The availability of a date may depend on largely on the Judge’s diary and programme. Judges are known to be on Sessions, study or annual leave or sick. During such periods matters are made to pend and usually no dates are allocated. I am not saying that the system is wrong, no, what I am saying is that it is an internal affair for which you cannot hold the innocent and the anxious litigating public responsible before it accesses urgent remedies from court.
48 – Secondly, when one reads Article 126 (2) (e) of the Constitution, S.14 and 33 of the Judicature Act plus S.98 of the Civil Procedure Act it would appear that while court is exercising its discretionary powers it accepts only legal grounds to stand in its way. Those grounds are clear from decided authorities that bind the High Court.
49 – In the affidavits to support injunctions, it is usually deponed that a main application has been filed and a number given. Here it is contained in paragraph 34 of the Applicant’s affidavit. That is evidence on oath unless controverted. In my view it would be unfair to any Applicant to deny him / her access to court which is granted by the Constitution, the Judicature Act and the Civil Procedure Act simply because his / her application is not allocated a hearing date..
I conclude by saying that I agree with the Judge on all other points but take exception on the issue of a hearing date of an application. The main application here has no hearing date but that cannot expel the applicant from court
50 – Having discussed all the points submitted on the issue of a prime facie case with chances to success, I find that the Applicant has disclosed one.
51 – Will the Applicant suffer an irreparable loss that cannot be atoned by an award of damages,
Hon. Katuntu argued that the Applicant is an elected Mayor by all adults. That he represents the will of the people who elected him. That it is his constitutional right. The Applicant deponed in paragraph 1 and 2 of the affidavit in support that he is the elected Lord Mayor.
I understand that an award of general damages is meantt to place an aggrieved person to the same place he / she would have been in, save that the injury occurred.
52 - The position the Applicant holds is not commercial or ordinary employment. It is employment given to him by the electorate. I find it would be impossible for this court to assess an amount of money to give him for the loss he may suffer as general damages. I therefore agree with Hon. Katuntu that, the Applicant would suffer an irreparable loss for which this court cannot compensate him using monetary awards.
53- I have answered both the first questions without doubt that means the test of balance of convenience would not apply. I will however make a comment on the concern by the Attorney General that the Authority had only fourteen days to act, and if this application is granted it would not act. That is a wrong interpretation of the law and the whole situation.
54- In the first place it is the Applicant who came to court to stop the authority from acting. He would be estopped if he got the order to argue that the authority cannot act after the fourteen days.
Secondly if stopped by court the Authority would have a legal defence as to why they did not act in fourteen days. The jurisprudence relied on that court has no power to extend time set by a statute apply elsewhere which I cannot discuss now.
55 - For those reasons I find that the Applicant has proved his case to be granted the interim orders sought till the final determination of Miscellaneous Cause No.362 of 2013. My order above now replaces the order the Deputy Registrar of this court gave via the 25.11.2013 as I explained earlier. I award the costs to this application to the Applicant.
NYANZI YASIN
J U D G E
28.11.2013
Mr. Mwambustya:
The Attorney General seeks leave to appeal against the order of court. He is not satisfied with the decision of court under order 44 of the Civil Procedure Rules, there is no automatic leave to appeal. So I pray.
Mr. Walubiri:
We are instructed to oppose the application. The order was not made under the Civil Procedure Rules. It was under the Judicature Act and Judicial Review Rules. Order 44 that governs appeals for orders in Civil Procedure Rules does not apply. On that ground alone you should decline to grant leave to appeal.
Without prejudice to that argument the power to grant leave to appeal is discretionary exercised by court where grounds requiring leave to appeal have been given and court judiciously considers them. Attorney General in one sentence asked for leave and gave no reason why an order for leave be made. There is no material for court to consider. Leave to appeal is not automatic. That is why court orders that a formal application be filed. Court be pleased to decline to grant this application.
Mr. Alaka:
The decision is interlocutory in nature. In the circumstances not appealable with no leave. The application by Attorney General has not met the condition precedent to grant leave.
There must be a demonstration that there grounds of appeal. The appeal would raise important points of law. It is not automatic. I refer court to the case of SANGO BAY CASE 1971 EA Page 17. We pray that the Respondent makes a formal application or the application be disallowed.
Mr. Mwambutsya:
The arguments given are re-statement of what I prayed. We are dissatisfied and intend to appeal. For a matter like this the Applicant seeks leave from the court that issues the order and it is not mandatory that the application be formal. It is courts inherent powers and we seek the leave to appeal.
Court:
Let the Attorney General file a formal application for leave.
NYANZI YASIN
J U D G E
28.11.2013
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