Lubega v Attorney General & 2 Ors (Misc. Applics. No. 31 & 32 of 2011)

Court of Appeal · [2015] UGCA 32 · 2015 Application Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Consolidated applications for a temporary injunction and interim order pending determination of a constitutional petition

Decision

Application for temporary injunction dismissed; injunction issued against the applicant to restore the status quo and the illegal eviction of the third respondent quashed

The full judgment

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Holding

The Constitutional Court dismissed the applicant's application for a temporary injunction to preserve a status quo he himself had created by evicting the third respondent in violation of the Court's earlier interim order of 31 May 2013. The Court held that a party who acts in contempt of a court order has unclean hands and cannot invoke the Court's equitable discretion until the contempt is purged. The applicant failed to establish a prima facie case, irreparable injury, or balance of convenience. Instead, the Court issued an injunction against the applicant to restore the peaceable status quo that existed before the petition and applications were filed, and quashed the illegal eviction of the third respondent.

Facts

The applicant, registered proprietor of leasehold land at Nakivubo Road (Buganda Bus Park), filed Constitutional Petition No. 37 of 2011 challenging a presidential directive of 20 July 2011 and a Committee of Inquiry report recommending cancellation of fraudulently acquired titles. Various disputes over the suit land had been pending in the High Court since 2006, with the third respondent claiming to be the lawful assignee/purchaser. The applicant filed Applications No. 31 and 32 of 2011 for a temporary and interim injunction. On 31 May 2013 the Constitutional Court issued an interim order preserving the status quo, under which the third respondent was in possession operating a bus park. The order was extended several times. On 15 March 2014, while the interim order remained in force, the applicant, with police acting on the Attorney General's advice, evicted the third respondent and took possession of the land, thereby reversing the protected status quo.

Issues

Whether the applicant is entitled to be granted a temporary injunction pending determination of Constitutional Petition No. 37 of 2011.

Orders

An injunction is issued against the applicant to restore the peaceable status quo that existed immediately before the constitutional petition and consolidated applications were filed.
The eviction of the third respondent on 15 March 2014 on advice or orders of the Attorney General, but in contempt of the Court's order, stands quashed as totally illegal.
The application of the applicant is dismissed.
The applicant is to pay the costs of this application to the third respondent.
Each party is to bear its own costs as between the applicant and the first and second respondents.
The Registrar is to take immediate steps to list for hearing Constitutional Petition No. 37 of 2011.

Key headnotes

Civil Procedure — Temporary Injunctions — Conditions for Grant

A temporary injunction will be granted only where the applicant establishes a prima facie case with a probability of success and that he will suffer irreparable injury not compensable in damages; where the court is in doubt it decides on the balance of convenience, and the burden lies on the applicant.

Civil Procedure — Temporary Injunctions — Preservation of Status Quo

The relevant status quo for an interlocutory injunction is the existing state of affairs immediately preceding the application; a court will not preserve a status quo that the applicant has unlawfully created in defiance of an existing court order.

Contempt of Court — Disobedience of Court Orders — Effect on Equitable Relief

A party who acts in contempt of a subsisting court order has unclean hands and cannot be heard to invoke the court's equitable discretion in related proceedings until he has purged himself of the contempt.

Contempt of Court — Validity of Order Immaterial — Duty to Comply

A party who knows of a court order cannot choose to disobey it on the basis that he regards the order as null, invalid or irregular; the order must be complied with in full, subject only to the right to challenge it lawfully by revision, review or appeal.

Administrative Law — Executive Directives — Subordination to Court Orders

Advice or directives issued by the Attorney General and acted upon by the police cannot override or supersede a subsisting court order preserving the status quo over disputed property.

Legislation cited (11)

Civil Procedure Act Cap 71 s.98
Judicature Act Cap 13 s.38(3)
Judicature Act Cap 13 s.55
Constitution of Uganda Article 8A
Constitution of Uganda Article 21
Constitution of Uganda Article 26
Constitution of Uganda Article 28
Constitution of Uganda Article 42
Constitution of Uganda Article 44(c)
Constitution of Uganda Article 126
Constitution of Uganda Article 128

Cases cited (9)

Hassan Basajjabalaba v Attorney General (Constitutional Application No. 9 of 2011)
Humphrey Nzeyi v Bank of Uganda (Constitutional Application No. 1 of 2013)
Makula International Ltd V. His Eminence Cardinal Nsubuga and another, (1982) HCB 15
Devani v. Bhadresa and Another [1972] E.A 22
Housing Finance Bank Ltd v Edward Musisi (Miscellaneous Application No. 158 of 2010)
CHUCK V. CREMER (1 Corp Jemp 342)
HADKINSON V. HADKINSON (1952) 2 A LL ER 575
Musisi v Namugenyi Margaret (Application No. 19 of 2011)
Nasser Kiingi v Kampala Capital City Authority (Constitutional Application No. 291 of 2011)

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