Grace Bamurangye Bororoza and Others v Dr. Kasirivu Atwoki and Others (Civil Application No. 44 of 2008)

Court of Appeal · [2008] UGCA 39 · 2008 Application Granted ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application by notice of motion for a temporary injunction pending the determination of a civil appeal arising from the dismissal of an application for judicial review

Decision

Temporary injunction granted restraining eviction of the applicants until determination of the appeal

The full judgment

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Holding

The Court of Appeal granted a temporary injunction restraining the respondents from evicting the applicants pending the determination of their appeal. The Court found a prima facie case because the High Court had dismissed the underlying judicial review application without hearing the applicants, and because a presidential committee exercising quasi-judicial functions over eviction was amenable to certiorari and prohibition. It held that eviction without a hearing would violate the non-derogable rights under articles 28, 42 and 44 of the Constitution, causing irreversible damage that money could not address. The balance of convenience favoured the applicants, as respondents would lose nothing. The competence objections were rejected.

Facts

Between 2003 and 2007 pastoralists known as Balaalo arrived in Buliisa District with cattle, claiming to have individually bought land from the indigenous Bagungu. Clashes occurred between the two groups. The Government decided the Balaalo be removed and temporarily transferred to Kyankwanzi in Kiboga District. A presidential committee, chaired by the first respondent and composed of the other respondents, was mandated to carry out the eviction within four days from 19 July 2007. The applicants resisted, asserting they had lawfully bought the land. They obtained leave to apply for judicial review and an interim injunction from the High Court. When they later sought to amend their originating motion to add the Attorney General and further remedies, the High Court dismissed the entire application on the grounds that no supporting affidavit accompanied the amendment and that a presidential directive could not be reviewed. The applicants appealed and applied for a temporary injunction pending appeal.

Issues

Whether the applicants' pending appeal disclosed a prima facie case with a probability of success.
Whether the applicants would suffer irreparable damage incapable of being compensated by money if the injunction was not granted.
Where the first two conditions are uncertain, whether the balance of convenience favoured granting the injunction.
Whether the application was incompetent for non-compliance with rule 42(1) of the Court of Appeal Rules and for failure to serve the Attorney General.

Orders

Application granted.
Order of temporary injunction issued on similar terms as those made by the High Court (Hon. Justice V.A.R. Rwamisazi Kagaba, J, dated 22 June 2007) when granting leave to apply for review, to remain in force until the appeal is determined.
Costs of the application to the applicants.

Key headnotes

Civil Procedure — Temporary Injunction Pending Appeal — Conditions for Grant

For a temporary injunction pending appeal to be granted, the applicant must show a prima facie case with a probability of success on the appeal and that irreparable damage will result if the injunction is refused; where these are not made out, the court considers the balance of convenience.

Judicial Review — Certiorari and Prohibition — Quasi-Judicial Functions of an Administrative Body

A body which, in carrying out an administrative or governmental decision affecting rights, is required to consider proposals, objections and evidence has a duty to act judicially, and where it fails to do so its proceedings are amenable to certiorari and prohibition even though it is not a court or statutory tribunal.

Constitutional Law — Right to Fair Hearing — Non-Derogable Rights and Irreversible Damage

Eviction of persons by an administrative committee without a hearing violates the right to just and fair treatment under article 42 and the non-derogable rights under articles 28 and 44 of the Constitution, and once such rights are violated the damage is irreversible and cannot be addressed by payment of money.

Civil Procedure — Court of Appeal Rules — Application for Injunction Filed Directly in the Court of Appeal

Rule 42(1) requiring an application to be made first in the High Court does not apply, by virtue of rule 42(2), where an applicant seeks an order of injunction in the Court of Appeal after filing an appeal under rule 6(2)(b) of the Court of Appeal Rules.

Civil Procedure — Amendment of Pleadings — Effect of Defective Amendment on Original Motion

Where a defective amendment lacking supporting evidence is sought, the court should reject only the amendment and proceed to hear the original motion which is properly supported by affidavit, rather than dismiss the entire application.

Legislation cited (10)

Court of Appeal Rules r.2(2)
Court of Appeal Rules r.6(2)
Court of Appeal Rules r.42(1)
Court of Appeal Rules r.42(2)
Court of Appeal Rules r.43
Constitution of Uganda 1995 art.126(2)(e)
Constitution of Uganda 1995 art.28
Constitution of Uganda 1995 art.42
Constitution of Uganda 1995 art.44
Civil Procedure Rules O.6 r.19

Cases cited (4)

The King v Electricity Commissioners [1924] 1 KB 171
R v Manchester Legal Aid Committee [1931] 2 KB 480
Kazoora v Rukuba (Civil Application No. 4 of 1991)
Hemnton Ltd vs. Uganda Corporation Creameries Ltd. Civil Application No.53/1994 (C.A)

Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.