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Grace Bamurangye Bororoza and 53 others vs Dr Kasirivu Atwooki and 5 others (Civil Application No.44 of 2008)

Court of Appeal · [2008] UGCA 5 · 2008 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application for a temporary injunction pending the determination of a civil appeal, arising from the dismissal of a judicial review application in the High Court
Decision
Temporary injunction granted restraining eviction of the applicants until the appeal is determined

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Holding

The Court of Appeal granted a temporary injunction restraining the respondents from evicting the applicants pending determination of their appeal. The Court found a prima facie case, holding that the trial judge erred in dismissing the originating motion for lack of a supporting affidavit and in holding that a Presidential committee's eviction decision was not amenable to judicial review. The committee exercised quasi-judicial functions and was obliged to act judicially under article 42 of the Constitution. Because eviction without a hearing would violate non-derogable rights under articles 28 and 44, the damage was irreversible. The balance of convenience favoured the applicants, and the application was competent under Rule 42(2).

Facts

Between 2003 and 2007 pastoralists known as Balaalo arrived in Buliisa District with cattle, claiming to have lawfully bought land from the indigenous Bagungu. Clashes erupted between the two groups, prompting government intervention. The President mandated a committee, chaired by the 1st respondent and comprising the other five respondents, to remove the Balaalo within four days and relocate them temporarily to Kyankwanzi in Kiboga District. The applicants resisted, asserting they had legally acquired their land and homes. They obtained leave at Masindi High Court to apply for judicial review and a restraining order. They later filed an originating motion seeking certiorari and prohibition and sought to amend it to join the Attorney General. The High Court dismissed the motion, holding the amendment lacked a supporting affidavit and that a Presidential directive was not amenable to prerogative orders. The applicants appealed and sought a temporary injunction to maintain the status quo pending appeal.

Issues

  1. Whether the applicants' pending appeal disclosed a prima facie case with a probability of success.
  2. Whether the applicants would suffer irreparable damage if a temporary injunction were not granted.
  3. Whether the balance of convenience favoured granting the temporary injunction.
  4. Whether the application was competent given Rule 42 of the Court of Appeal Rules.
  5. Whether a Presidential committee carrying out an eviction directive was amenable to judicial review by certiorari and prohibition.

Orders

  • Application for a temporary injunction granted.
  • Order made on similar terms as those granted by the High Court on 22 June 2007 when leave to apply for review was granted, to remain in force until the appeal is determined.

Key headnotes

Civil Procedure — Temporary Injunction Pending Appeal — Conditions for Grant
An applicant for a temporary injunction pending appeal must show a prima facie case with a probability of success on appeal, that irreparable damage will result if the injunction is refused, and, where these are not established, the court may consider the balance of convenience.
Judicial Review — Amenability — Quasi-judicial Bodies Exercising Eviction Powers
A committee mandated to carry out an eviction decision is obliged to act judicially by inquiring into the affected persons' rights before relocating them, and where it fails to do so it is amenable to judicial review by certiorari and prohibition.
Constitutional Law — Right to Fair Hearing — Non-derogable Rights as Irreparable Damage
Eviction of persons without a hearing violates the rights to just and fair administrative treatment under article 42 and the fair hearing rights under article 28, which are non-derogable under article 44, and such violation constitutes irreversible damage that cannot be remedied by monetary compensation.
Civil Procedure — Court of Appeal Rules — Competence of Application Not First Made in High Court
Rule 42(1) requiring an application to first be made in the High Court does not apply where, under Rule 42(2) and Rule 6(2)(b), the applicant seeks an injunction after filing an appeal in the Court of Appeal.
Judicial Review — Amendment of Pleadings — Effect of Defective Amendment on Original Motion
Where an application to amend an originating motion lacks a supporting affidavit, the court should dismiss only the amendment and proceed to hear the original motion that is properly supported, rather than dismiss the entire proceeding.

Legislation cited (12)

  • 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
  • S.I. 75/03 r.4(6)
  • S.I. 75/03 r.7(3)

Cases cited (4)

  • R 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)
  • Reamaton Ltd v Uganda Corporation Creameries Ltd (Civil Application No. 53 of 1997)
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.