THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
[CIVIL DIVISION]
MISC. APPLICATION NO. 1173 OF 2023
[ARISING FROM MISC. CAUSE NO. 274 OF 2023]
KANYESIGYE PETERSON
ANYANGO LILIAN ============================= APPLICANTS
VERSUS
1. UGANDA NATIONAL STUDENTS ASSOCIATION
2. NASASIRA BILL CLINTON
3. CHERUKUT FRED TOSKIN ================== RESPONDENTS
BEFORE: HON. JUSTICE EMMANUEL BAGUMA
RULING
This application is by chamber summons under order 41 Rules 1(a), 2 (1) and 9 of
the CPR, section 33 of the judicature Act, section 98 of the CPA, order 52 rules 1,
2 & 3 of the CPR seeking for orders that; -
a) A temporary injunction doth issue against the Respondents restraining
them and or their agents/employees/servants/labourers/workers or anyone
claiming title under or deriving authority from them from conducting,
holding, mobilizing and or continuing with the UNSA 34th Students’
Council 2023-2024 General Elections and or processes thereunder until the
final disposal of the main cause.
b) Costs of this Application be provided for.
The application is supported by the affidavit of Anyango Lilian the 2nd applicant
whose details are on record but briefly states that; -
1. I am a duly elected deputy speaker with the 1st Respondent herein by 33rd
UNSA National Students’ Council together with the 1st applicant as speaker.
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2. On 13th November 2023 I and the 1st applicant were suspended and the
purported election of Miss Kiyuba Jennah as interim speaker and Mr. Ochen
Alfred as her deputy.
3. The illegally elected speakers and deputy speaker are in the process of
conducting elections on 27th to 30th December 2023 at our detriment.
4. We have filed an application for judicial review contesting the conduct and
activities of the Respondents of halting, suspending and or interdicting us.
5. The 2nd and 3rd Respondents in conjunction with the illegally chosen interim
speaker and her deputy have continued with their irregular, illegal and ultra
vires proceedings by calling nominations of different candidates on the
different National Executive Committee in a bid to further their deliberate
violation of the UNSA Constitution.
6. There is an imminate threat as the Respondents intend to conduct elections if
not restrained the same will render the application for judicial review
nugatory.
In reply, the Respondents in their affidavit in support sworn by Cherukut Fred
Toskin the 3rd Respondent and the Executive Secretary whose details are on
record but briefly stated that; -
1. The 2nd Applicant’s affidavit in support is incompetent on grounds that the 1 st
applicant did not authorize the 2nd applicant to swear an affidavit on his behalf
and that the application has effects of affecting third parties who are not party
to this application.
2. The 1st Respondent has a Dispute Resolution, Displinary and Arbitration
Committee with the power to handle complaints and appeals arising from
members of the National Executive Committee but the Applicants did not
lodge any complaints with the said Committee before filing this application.
3. On 29th January 2023, the 1st and 2nd Applicants were elected speaker and
Deputy speaker of the 1st Respondent respectively for a term expiring on end
of December 2023.
4. In March 2023, the Permanent Secretary Ministry of Education & Sports
closed the 1st Respondent’s office, suspended the association’s operations and
also froze its accounts only to be re-opened in August 2023.
5. The main case shall not be rendered nugatory if the temporary injunction
order is not granted.
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6. In any case, the Applicants are by virtue of the Respondent’s constitution
required to vacate office before 31st December 2023.
7. Nominations have already been concluded and members of the 1 st Respondent
Association are entitled to vote for a new National Executive Committee since
the tenure of the current executive committee constitutionally expires before
the end of December 2023.
8. The grant of this application has the effect of irregularly extending the tenure
of the current National Executive Committee contrary to the Constitution of
the 1st Respondent.
9. The applicants shall not suffer any irreparable loss that would not be
compensated in damages if this application is rejected.
In rejoinder, the Applicant reiterated his averment in chief but added that this is not
representative suit which required authority to file an affidavit in support and that
the applicants only remedy was to file a complaint with the body of trustees which
they did but the same was ignored.
Representation.
Counsel Kakeeto Sirajje represented the Applicants while counsel Bazekuketta
Derric together with counsel Sseguya Ismail Kimuli represented the Respondents.
At the hearing of this application, both counsel agreed to file written submissions
in the main application and POs whose details are on record.
Submissions by counsel for the Applicant.
Whether this is a proper case for the grant of a temporary injunction.
Counsel submitted that the statutory considerations for the grant of a temporary
injunction in public law matters are contained under Order 41 Rule 2(1) of the Civil
Procedure Rules which provide that; -
“In any suit for restraining the defendant from committing a breach of contract or
other injury of any kind, whether compensation is claimed in the suit or not, the
Plaintiff may, at any time after commencement of the suit, and either before or after
judgment, apply to the Court for a temporary injunction to restrain the Defendant
from committing the breach of contract or injury complained of, or any injury of a
like kind arising out of the same contract or relating to the same property or right”.
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Counsel referred to the case of American Cyanamid Co. -Vs- Ethicon Ltd, [1975] AC
396 which holding was also followed with approval in the Supreme Court case of
Robert Kavuma -Vs- Hotel International SCCA No. 8/90 that for the grant of a
temporary injunction, the following elements should be satisfied by the Applicants(s);
a. That the applicant must show that there is a substantial question to be
investigated or a prima facie case with chances of winning the main suit on
his/her or their part which has also been pronounced in case law as the
likelihood of success of the head suit.
b. That the applicant would suffer irreparable injury or damage which are not
capable of being atoned for by the award of damages if the temporary
injunction is denied.
c. That the balance of convenience is in favour of the application.
CounselS proceeded to submit on each of the above elements separately.
Whether there is a prima facie case with a probability of success?
Counsel submitted that the position of the law is that what the Applicant is required of,
at this stage, is to show a prima facie case with probability of success but not actual
success. Hence, this means there should be a triable issue, that is, an issue which raises
a prima facie case for adjudication by the Court. He referred to the case of Robert
Kavuma -Vs- Hotel International supra.
He submitted that the Applicants filed Misc Cause 274 of 2023 in this Honorable Court
against the Respondents/ seeking for Judicial Review of the illegal acts of the
Respondents’ acts of halting, suspending and or interdicting the services of the
Applicants without the authority to do so. The Applicants have a prima facie case
against the Respondents in the head suit currently pending before this Honorable Court
and the same has a very high likelihood of success. This is evidently supported by the
evidence of the Applicants in the supporting affidavit to this application.
Counsel submitted that it is trite that the discretion conferred on this Court cannot be
fettered by any rule. There is thus no rule that a party as the Applicants herein
challenging the validity of a law or application of the same must first prove a prima
facie case before getting a temporary injunction. If this was to be the case, parties then
shall suffer serious and irreparable harm in the event that the law being enforced is not
restrained by the temporary injunction. He referred to the case of Geraldine Ssali
Busuulwa -Vs- NSSF & Anor Misc Appn No. 96 of 2016.
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Whether the applicant will suffer irreparable injury, which cannot be atoned for by
award of damages?
Counsel submitted that it is trite that the adequacy of damages is unlikely to be a key
issue in public law cases as the instant one before the Court because a breach of public
law does not in itself give rise to a claim in damages. Thus, making the balance of
convenience the key factor for the administrative Court when deciding whether or not
to grant an interim injunction. He referred to the case of Geraldine Ssali Busuulwa -
Vs- NSSF & Anor supra.
Counsel submitted that the Applicants will suffer irreparable injury, which cannot be
atoned for by an award of damages as has been demonstrated in the Applicants’
affidavits in support of this application. Irreparable injury does not mean that there
must not be a physical possibility of repairing the injury, but it means that the injury or
damage must be substantial or material one that is or one that cannot be adequately
atoned for in damages. He referred to the case of Tonny Wasswa -Vs- Joseph Kakooza
[1987] HCB 79.
The main purpose of the main application is to determine whether their suspension was
illegal, irregular, unlawful or not and if this application is not granted and the elections
which are scheduled on the 27th Day of December 2023 to the 30th day of December
2023 are held before determining the same, this shall cause great inconvenience which
cannot be atoned for by an award of damages. No amount of compensation that can
compensate for the inconvenience.
Whether the Balance of convenience tilts in favour of the Applicants?
Counsel submitted that the term balance of convenience literally means that if the risk
of doing an injustice is going to make the Applicants suffer then probably the balance
of convenience is favorable to him or her and the court would be more inclined to grant
to him/ her the order sought for. He referred to the case of Victoria Construction
Works Ltd –Vs- Uganda National Roads Authority HCMA No 601 of 2010 where
the High Court while citing the decision in J.K Sentongo –Vs- Shell (U) Ltd [1995]
111KLR 1 Justice Lugayizi as then he was observed that if the Applicant fails to
establish a prima facie case with a likelihood of success, irreparable injury and need to
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preserve the status quo, then he/she must show that the balance of convenience was in
his/her favor.
Counsel submitted that the fact that when it comes to temporary injunctions in matters
of Judicial Review, the rules of the game have to change a little and that the Court
should shift immediately to the balance of convenience first since it is always difficult
to solve the matter at the time/stage of prima facie case and irreparable damage. He
referred to the case of Geraldine Ssali Busuulwa -Vs- NSSF & Anor supra.
Counsel submitted that the Applicants have testified that the General Elections are to
be held between the 27th day of December 2023 and the 30th day of December 2023
and the main Application Misc Cause No. 0274 of 2023 is due for a ruling on the 11th
day of January 2024 which is actually only 15 days for which it shall not amount to
great inconvenience to the Respondents as also themselves admit to have extended the
events from the 21st day of December 2023 to that other date.
Counsel concluded that It is also trite that interim injunctions can be granted against
public bodies from acting in a way that is unlawful or abusing its statutory powers or
compelling the performance of a duty created under the statute. Public bodies should
not be prevented from exercising the powers conferred under a statute unless the person
seeking an injunction can establish a prima facie case that the public authority is acting
unlawfully which is the exact case with the Respondents herein and thus making this a
proper case to grant the temporary injunction. He referred to the case of Alcohol
Association of Uganda & Anor -Vs- AG & Anor Misc. Appn N0. 744 of 2019.
Counsel for the Respondents in his written submission raised four preliminary points
of law to wit;
1. The application affects 3rd parties who are not party to the main cause and the
instant application.
2. The applicants are not contestants in the upcoming general elections and
therefore lack a protectable interest by way of a temporary injunction order.
3. There is no prayer for a temporary injunction to sustain the instant application
for a temporary injunction.
4. The 1st Applicant’s application is not supported by affidavit evidence.
I have very carefully and critically considered the points of law raised by counsel for
the Respondents, it is my considered view that these POs will ably be answered in the
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analysis of the entire application and for the interest of justice and for this court to
reach a just decision, I will proceed and handle this application on its merit.
Submissions by counsel for the Respondents
Whether this is a proper case for the grant of a temporary injunction?
Counsel laid down the principles governing the grant of temporary injunction in public
law matters or judicial review applications and the grounds for grant may sometimes
defer from the grounds in ordinary civil suits and the same are considered with caution
and appropriateness of the case. He referred to the case of Water & Environmental
Media Network (U) Ltd v NEMA HCMA No. 509 of 2020.
Counsel submitted that the courts should be reluctant to restrain the public body from
doing what the law allows it to do or to execute its core mandate or function. He
referred to the case of Alcohol Association of Uganda & Others v AG & Anor
HCMA No. 744 of 2019
Counsel submitted that for an application to be maintained three conditions must be
satisfied by the Applicant that is; -
The applicant must show a prima facie case with a probability of success, that the
applicant might otherwise suffer irreparable injury which would not adequately be
compensated by an award of damages and if the court is in doubt, it would decide an
application on the balance of convenience.
He referred to the case of American Cyanamid vs. Ethicon Limited 1974 AC 396
also relied on by the supreme court in Kiyimba Kaggwa vs. Hajji A.N Katende.
Counsel contended that a temporary injunction ought not to be granted if it will
seriously affect the operations of the entity. He referred to the case of Samuel N.
Kamau v Mr. Amir Hamza & Ors HCMA No. 29 of 2021
Counsel proceeded to submit on each elements for grant of a temporary separately.
Whether there is a prima facie case with a probability of success?
Counsel submitted that the Applicants do not have a prima facie case. To prove the
existence of a prima facie, first the Applicants have to plead in their affidavit in support
of the application that the main case has a high likelihood of success. The Applicants
did not plead that they have a prima facie case with a probability of success. He
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referred to the case of Legal Brains Trust (LBT) Ltd v Attorney General Court of
Appeal Civil Application No. 56 of 2023.
Secondly, the Applicants are required to clearly state with specificity, in their affidavit,
the serious questions to be tried but unfortunately, the Applicants did not do so and
therefore this Court has no basis to assess the validity of the questions to be determined.
Counsel referred to the case of Osman Kassim Ramathan v Century Bottling
Company Supreme Court Civil Application No. 34 of 2019 wherein the Supreme
Court held that:
“The important questions are not even mentioned in his affidavits so as to give
this Court an idea about the possible ground of his intended appeal. We are, in the
circumstances, unable to establish the likelihood of success in the absence of
evidence. This ground was thus not satisfied”.
Counsel submitted that the facts in this matter are highly contested and where the
facts are highly contested in an interlocutory application, a prima facie case is not
made out. He referred to the case of Assoc. Prof. Jude Ssempebwa & Anor v
Makerere University & Anor HCMA No. 021 of 2021 where court held that,
“Where there is a serious dispute on the facts, it cannot be said that a prima facie
case had been made out for the grant of a temporary injunction”.
Whether the applicant will suffer irreparable injury, which cannot be atoned for by
award of damages?
Counsel for the Respondents submitted that irreparable damage must be clearly
demonstrated in the affidavit in support of the application. There is no single
paragraph in the affidavit in support of the application that states the irreparable
damage that the Applicants will suffer. Counsel referred to the case of Osman
Kassim Ramathan v Century Bottling Company Supreme Court Civil
Application No. 34 of 2019 where Court held that:
“The applicant has to prove by affidavit evidence that he or she will suffer
irreparable loss if the status quo is not maintained”.
Counsel submitted that the Applicants seek damages in the motion in the main cause.
It is trite law that a prayer for damages shows a possibility of compensation in case
of damage and / or injury occurred. He referred to the case of Zam Nambi v Bujingo
& 2 Ors HCMA No. 1013 of 2015.
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Whether the Balance of convenience tilts in favour of the Applicants?
Counsel submitted that the applicants are not contestants in the scheduled general
elections and accordingly, they have nothing to lose if the general elections are
conducted. He referred to the case of Muhumuza Ben v Attorney General & Ors
HCMA No. 449 of 2020 in which case the Applicant sought to stop an election and
court held that:
In this case, the balance of convenience is not in favour of the applicant and has
nothing to lose except for his personal interest… which interest or damage will be
considered after the court has determined the main cause.
Counsel submitted that the grant of this application will stifle the rest of the operations
of the 1st Respondent. The general elections are meant to usher in a new executive
committee, including various leaders like the President, Vice President, General
Secretary, Speaker, Deputy Speaker and others through whom the 1 st Respondent
operates. These offices are only occupied by the elected candidates for just one year
and any delay shortens their tenure. He referred to Article 7 Clause 2.0 (a) and Article
8 clause 1.3 (a) of the 1st Respondent’s Constitution (the UNSA Constitution).
Counsel stressed the position that courts should be reluctant to restrain the public body
from doing what the law allows it to do or to execute its core mandate or function.
Counsel further submitted that the grant of this application will affect and
inconvenience a number of third parties who have already been nominated as
candidates in the general elections. An interlocutory order cannot be granted where it
affects third parties. He referred to the case of The Uganda Super League Limited v
Federation of Uganda Football Associations (FUFA) Limited Court of Appeal
Civil Application No. 67 of 2015.
Counsel concluded that the Applicants were suspended on charges of physical assault
during a meeting pending investigations and a disciplinary hearing. It is an undisputed
fact that the 2nd Applicant was expelled from St. Elizabeth Institute of Health
Professionals, Mukono. It is now trite law that it is unwise to keep an indiscipline case
among the rest of the community.
In rejoinder, Counsel for the Applicant reiterated his submissions in chief.
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Determination of court.
The law on granting temporary injunctions has since been settled in the classic case
of E.L. Kiyimba Kaggwa Vs Haji Abdul Nasser Katende [1985] HCB 43 where
the supreme court laid down the rules for granting a temporary injunction as; -
“the granting of a temporary injunction is an exercise of judicial discretion and
the purpose of granting it is to preserve the matters in the status quo until the
question to be investigated in the main suit is finally disposed of.
The conditions for the grant of the interlocutory injunction are; -
i. First that, the applicant must show a prima facie case with a probability
of success.
ii. Secondly, such injunction will not normally be granted unless the
applicant might otherwise suffer irreparable injury which would not
adequately be compensated by an award of damages.
iii. Thirdly, if the court is in doubt, it would decide an application on the
balance of convenience.
I will now proceed to consider this application basing on the above principles as
below; -
Whether there is a prima facie case with a probability of success?
In applications for a temporary injunction, the Applicant is required to show that
there is a prima facie case with a probability of success of the pending suit.
The Court must be satisfied that the claim is not frivolous or vexatious and that
there is a serious question to be tried. (See American Cynamide versus Ethicon
[1975] ALL ER 504).
A prima facie case with a probability of success is no more than that the Court
must be satisfied that the claim is not frivolous or vexatious, in other words, that
there is a serious question to be tried as was noted in the case of Victor
Construction Works Ltd Vs Uganda National Roads Authority HMA NO. 601
OF 2010.
In the instant case, the applicants filed an application for judicial review No. 274 of
2023 contesting their removal from office as speaker and deputy speaker
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respectively. This application challenges the decision making process of their
removal from office and not necessarily the merits of the decision. This does not
relate to the upcoming elections to be conducted by the 1 st Respondent. The status
qou now is that the applicants were removed from office on 13th November 2023,
interim speaker and deputy speaker were appointed into those offices. If there was
any need to stop the Respondents from anything, that would have been to stop them
from removing the applicants from office!
It is my conclusion on this point that the main cause does not raise triable issues
which relate to orders sought in the present application. The sum effect of this
application is to put the entire Students association in Uganda in a limbo without
office bearers at the detriment of the entire students’ body. This court cannot allow
such an absurdity to happen. The applicants were remaining with approximately 2
months to complete their term of office by the time they were allegedly removed
from off, they filed an application for judicial review where court will determine the
legality of their removal from office and consider the available remedies.
Whether the applicant will suffer irreparable injury, which cannot be atoned for
by award of damages?
In the case of Moses Kasozi vs. Muhammed Batte & 4 Ors Civil Appeal No. 24
of 2022, irreparable injury was defined to mean; -
“injury that is substantial or material which cannot be adequately compensated
for in damages”.
In this application, the applicants where duly elected speaker and deputy speakers of
the 1st Respondent on 29th January 2023 for the year ending December 2023. They
were allegedly removed from office on 13th November 2023 while remaining with
approximately 2 months to complete their term of office. This court does not
condone the acts of removing them from office, however this injury can be atoned
in damages and the same cannot be said to be irreparable. In any case, the alleged
unlawful removal from office has no bearing to the current elections since the
executive committee’s term of office is expiring and they are supposed to elect new
leaders as per UNSA Constitution. The Applicants are not even contesting in the
forthcoming elections that their interests will be jeopardized!
Counsel for the applicant submitted that the applicants were illegally suspended
from office and have a high likelihood of success in the main cause whose purpose
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is to determine whether their suspension was illegal, irregular, unlawful or not and
if this application is not granted and the alleged forthcoming elections on 27th
December 2023 to 30th December 2023 are held before determining the same, this
shall cause grave inconvenience which cannot be atoned in damages.
With all due respect to counsel for the applicants, election of new leaders of the
students council does not in any way stop court from determining the manner in
which the Applicants were removed from office and that will cause no
inconvenience which cannot be atoned in damages.
Whether the balance of convenience tilts in favour of the Applicants?
Balance of convenience was defined in the case of Uganda Electricity Distribution
Company Limited Vs Citi Bank Uganda Limited and 2 ors to mean; -
“comparative mischief or inconvenience that may be caused to either party in the
event of refusal or grant of injunction”.
In the case of Gapco (U) Ltd vs. Kawesa Badru HCMA No. 259 of 2013, court
observed that balance of convenience is where; -
“The risk of doing an injustice is going to make the Applicant to suffer, then
probably the balance of convenience is favorable to him or her and the court would
most likely be inclined to grant him/her the Application for a temporary
injunction”.
Basing on the above authorities, if the applicant fails to establish a prima facie case
with a likelihood of success, irreparable injury and need to preserve the status- quo,
then he/she must show that the balance of convenience is in his/her favour.
It is necessary to assess the harm to the applicants if there is no injunction, and the
prejudice to the Respondents if an injunction is imposed and take the course which
carries the lower risks and also weigh the balance of convenience for the public
interest as well as the interest of the parties.
The two applicants’ interests cannot supersede the interest of the entire students body
in the country. It would be unfair to grant the temporary injunction to restrain
elections where even the applicants are not contesting for any post and their term of
service is expiring in few days from now i.e. 31st December 2023.
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In the final result, it is my considered view that great inconvenience will be suffered
by the Respondents based on the reasons given above.
Conclusion.
This application fails with the following orders;
1. The application is hereby dismissed.
2. Given that these are members of the same association and in a bid to
promote reconciliation, I make no orders as to costs.
Dated, signed, sealed and delivered by email this 23rd day of December 2023.
Emmanuel Baguma
Judge.
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