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Fox Odoi v NRM & Anor (Constitutional Application No. 32 of 2015)

Constitutional Court · [2015] UGCC 7 · 2015 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application for a temporary injunction arising from a pending constitutional petition
Decision
Application for a temporary injunction dismissed; the main constitutional petition remains pending

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Holding

The Court dismissed the application for a temporary injunction. Although the petition raised a prima facie case fit for constitutional interpretation under Article 137(3)(a) and (b) — challenging the constitutionality of Regulation 20(21) of the NRM Primary Elections Regulations and an alleged breach of the right to a fair hearing — the applicant failed to establish irreparable injury, having shown no basis for losing party membership or suffering loss not compensable in damages. The status quo to be preserved was the NRM Electoral Commission's final declaration that he had lost, so the relief sought had been overtaken by events. With national nominations imminent, the balance of convenience favoured the first respondent.

Facts

The applicant, a Member of Parliament for West Budama North, sought the NRM party flag bearer position for the 2016 elections. In the NRM primary, the presiding officer declared him the winner with 12,453 votes against Othieno Okoth's 12,258. Othieno petitioned the NRM Electoral Commission, contending he had obtained more votes. The Commission handled the complaint, found the results incomplete, conducted a recount and re-tally, and declared Othieno the winner. The applicant filed a constitutional petition challenging the constitutionality of Regulation 20(21) of the NRM Primary Elections Regulations and alleging breach of his right to a fair hearing, on the ground that the same Electoral Commission both organised the elections and adjudicated disputes arising from them, with its chairman also chairing the tribunal. Pending the petition, he applied for a temporary injunction to restrain the respondents from removing him as flag bearer. National parliamentary nomination dates were set for 2 and 3 December 2015.

Issues

  1. Whether the constitutional petition raises a prima facie case with a probability of success warranting a temporary injunction.
  2. Whether the applicant would suffer irreparable injury, not compensable in damages, if the injunction were refused.
  3. Whether there was a status quo capable of being preserved by the injunction.
  4. Whether the balance of convenience favoured granting the temporary injunction.

Orders

  • The application is dismissed.
  • The costs shall abide the result of the Petition.

Key headnotes

Civil Procedure — Temporary Injunctions — Governing Principles
On an application for a temporary injunction the applicant must show a prima facie case with a probability of success and that he stands to suffer irreparable injury not adequately compensable by damages; where the court is in doubt on either limb, the application is decided on the balance of convenience.
Constitutional Law — Jurisdiction — Threshold for Constitutional Interpretation
A case for constitutional interpretation is made out once a petitioner makes allegations falling within Article 137(3)(a) and (b) of the Constitution; allegations that an act or regulation is unconstitutional or violates a fundamental right cannot be ignored by the Constitutional Court.
Constitutional Law — Political Parties — Subjection to the National Constitution
A political party established under the Political Organizations Act, though governed by its own constitution and regulations, must conduct its activities in conformity with the standards set by the National Constitution, and its impugned regulations may be the subject of constitutional adjudication.
Civil Procedure — Temporary Injunctions — Irreparable Injury
An applicant who fails to demonstrate, by reference to legal or constitutional provision, how he would suffer loss not compensable by an award of damages does not establish irreparable injury, and the injunction will be refused.
Civil Procedure — Temporary Injunctions — Status Quo Overtaken by Events
Where the relief sought would preserve a state of affairs that no longer exists, there is no status quo capable of being maintained and the application has been overtaken by events; under Regulation 20(21) of the NRM Primary Elections Regulations the final result in a disputed primary is the declaration made by the NRM Electoral Commission, not that of the District Registrar.

Legislation cited (16)

  • Constitution of the Republic of Uganda 1995 art.28(1)
  • Constitution of the Republic of Uganda 1995 art.28(2)
  • Constitution of the Republic of Uganda 1995 art.44(c)
  • Constitution of the Republic of Uganda 1995 art.126
  • Constitution of the Republic of Uganda 1995 art.137
  • Constitution of the Republic of Uganda 1995 art.137(3)(a)
  • Constitution of the Republic of Uganda 1995 art.137(3)(b)
  • Civil Procedure Act Cap 71 s.98
  • Civil Procedure Act Cap 71 s.64(c)
  • Civil Procedure Act Cap 71 s.64(e)
  • Judicature Act Cap 13 s.33
  • Constitutional Court (Petitions and References) Rules SI 91 of 2005 rr.2(2), 5(b), 10, 23, 43(1)(2), 44
  • Judicature (Court of Appeal Rules) Directions SI 13-10
  • Parliamentary Elections Act 2005 s.10
  • Political Organizations Act
  • NRM Primary Elections Regulations 2015 reg.20(21)

Cases cited (6)

  • Humphrey Nzei v Bank of Uganda & Anor (Constitutional Application No. 1 of 2013)
  • Andrew Baryayanga v Attorney General (Constitutional Application No. 4 of 2013)
  • American Cyanamid Co v Ethicon Ltd [1975] AC 396
  • American Cyanamid Co v Ethicon Ltd [1975] 2 WLR 326
  • Ismail Serugo v Kampala City Council and Another (Constitutional Appeal No. 2 of 1998)
  • Uganda National Roads Authority v Irumba Asuman and Peter Magela (Constitutional Appeal No. 2 of 2008)
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.