Wakilii

Gurindwa v Attorney General & Ors (Constitutional Application No. 15 of 2015)

Constitutional Court · [2015] UGCC 11 · 2015 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application for an interim order and temporary injunction in a pending constitutional petition
Decision
Application for an interim order dismissed; the constitutional petition remains pending.

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Holding

The court applied the established criteria for an interim order: a prima facie case with high probability of success, irreparable damage not compensable in damages, and the balance of convenience. It held the applicant raised no prima facie case, as the constitutionality of trying him in absentia could be determined after the trial and any unconstitutional trial could be nullified, with damages then available. The balance of convenience favoured allowing the law to take its course, since the applicant had absconded from his trial and was the architect of his own situation. The application was dismissed.

Facts

The applicant was facing trial in the High Court for fraudulent evasion of taxes. After being found to have a case to answer and put to his defence, he failed to appear, and neither his counsel nor his sureties knew his whereabouts. The prosecution was permitted to proceed in his absence. The applicant contended he had travelled to Canada for medical treatment with the court's permission, but the respondents said no such permission was granted and that he had left without the passport deposited in court as security, and did not communicate with the court for almost two years. He filed a constitutional petition challenging the constitutionality of his trial in absentia and sought an interim order restraining Interpol action against him and staying various criminal and civil proceedings against him and his companies pending determination of the petition.

Issues

  1. Whether the applicant established a prima facie case with a high probability of success in the main constitutional petition warranting an interim order.
  2. Whether refusal of the interim order would cause the applicant irreparable damage that could not be compensated by an award of damages.
  3. Whether, failing the above criteria, the balance of convenience favoured granting the interim order.

Orders

  • Hearsay and incompetent paragraphs of the supporting affidavit struck out.
  • Application dismissed.

Key headnotes

Civil Procedure — Interim Orders — Conditions for Grant
An interim order pending a constitutional petition will be granted only where the applicant establishes a prima facie case with a high probability of success, or shows that refusal would cause irreparable damage not compensable by an award of damages, or, failing those, that the balance of convenience favours the order.
Constitutional Law — Stay of Proceedings — Pending Constitutional Petition
The Constitutional Court is reluctant to halt ongoing proceedings through a constitutional petition where the trial court has capacity to adjudicate the matter fairly and an appellate system can remedy any prejudice; the constitutionality of a decision to proceed in an accused's absence may be determined even after the trial is concluded.
Evidence — Affidavits — Hearsay and Competence of Deponent
Affidavit averments deposing to information received from a third party are hearsay and inadmissible, and a deponent is not competent to aver, on counsel's advice, that matters pending or already adjudicated by a competent court are unlawful, illegal or unconstitutional unless and until that court's decision is reversed.

Legislation cited (4)

  • Constitution of Uganda Article 137
  • Constitutional Court (Petitions and References) Rules SI 91 of 2005 r.23
  • Judicature (Fundamental Rights and Freedoms Enforcement Procedure) Rules 2008 r.3
  • Judicature (Fundamental Rights and Freedoms Enforcement Procedure) Rules 2008 r.4

Cases cited (2)

  • Gilbert Asiimwe v Attorney General (Constitutional Application No. 15 of 2010)
  • Hon. Jim Muhwezi v Attorney General & Another (Constitutional Application No. 18 of 2007)
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.