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Wekoye v Attorney General & Anor (Constitutional Application No. 3 of 2014)

Constitutional Court · [2014] UGCC 7 · 2014 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application for a temporary injunction pending the determination of a constitutional petition
Decision
Application for a temporary injunction dismissed with costs to the respondents

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Holding

The court held that although a prima facie case for constitutional interpretation was established — namely whether Rules 101 and 103 of Parliament's Rules of Procedure contravene article 86(1)(a) of the Constitution — the applicant failed to show irreparable damage. If the impugned rules were later declared unconstitutional, any by-election would be nullified and the Member of Parliament would retain his seat, so any loss was compensable. The balance of convenience did not arise once the first two principles were resolved. As the acts complained of had already been concluded, and no order had been sought against the Electoral Commission, the application was dismissed with costs to the respondents.

Facts

The applicant was a voter of Bubulo West Constituency and the campaign manager for Hon. Tony Kipoi Nsubuga during the 2011 parliamentary elections. Parliament, acting under Rules 101 and 103 of its Rules of Procedure (2012), declared Hon. Kipoi's seat vacant following the report of the Committee on Legal, Rules and Discipline, and the Clerk notified the Electoral Commission, which began preparations for a by-election under article 61 of the Constitution with a budget and programme partly executed. The applicant challenged the constitutionality of Rules 101 and 103 as contrary to article 86(1)(a) of the Constitution, which vests the power to determine parliamentary membership questions in the High Court, and filed Constitutional Petition No. 4 of 2014. Pending that petition he sought a temporary injunction restraining the respondents from debating, implementing and operationalising the Committee's report. By the time of the ruling, Parliament had already debated, implemented and operationalised the report and declared the seat vacant.

Issues

  1. Whether the applicant established a prima facie case with a probability of success.
  2. Whether the applicant would suffer irreparable damage not compensable in damages if the injunction were refused.
  3. Whether, on a balance of convenience, a temporary injunction should issue restraining the respondents pending the constitutional petition.

Orders

  • The application is dismissed with respect to Parliament.
  • The application is dismissed with costs to the respondents.

Key headnotes

Civil Procedure — Injunctions — Temporary Injunction — Conditions for Grant
An applicant for a temporary injunction must establish a prima facie case with a probability of success and that they would otherwise suffer irreparable damage not adequately compensable in damages; only where the court is in doubt on these two points does it decide the application on the balance of convenience.
Civil Procedure — Injunctions — Status Quo Overtaken by Events
A temporary injunction will not issue to restrain acts that have already been concluded, as there is no subsisting status quo for the court to preserve.
Civil Procedure — Injunctions — Irreparable Damage — Loss Capable of Restoration
Where a loss can be reversed or compensated — such as a parliamentary seat that would be restored if a subsequent by-election were nullified upon the impugned rules being declared unconstitutional — irreparable damage is not established.
Civil Procedure — Injunctions — No Relief Sought Against a Party
A court will not grant a temporary injunction against a party where neither the notice of motion nor the supporting affidavit sought any order against that party.
Constitutional Law — Subordinate Legislation — Presumption of Validity Pending Challenge
Rules made by Parliament under its constitutional power to regulate its own procedure remain valid and operative until a court declares them unconstitutional, so action taken under them before such declaration is lawful.

Legislation cited (9)

  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.2(2)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.43
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.44
  • Civil Procedure Act Cap 71 s.64(e)
  • Constitutional Court (Petitions and References) Rules 2005 r.10
  • Constitutional Court (Petitions and References) Rules 2005 r.23
  • Constitution of Uganda art.86(1)(a)
  • Constitution of Uganda art.94
  • Constitution of Uganda art.61

Cases cited (1)

  • Sulaiman Muwonge Lubega v Attorney General (Civil Appeal No. 7 of 2012)
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.