Attorney General v Kabumba & Another (Constitutional Application 16 of 2022)

Constitutional Court · [2023] UGCC 117 · 2023 Application Granted ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application to the Constitutional Court for a stay of execution of its own judgment pending appeal to the Supreme Court.

Decision

Application granted; stay of execution of the Constitutional Court's orders in Constitutional Petition No. 15 of 2022 issued pending the determination of the intended appeal to the Supreme Court.

The full judgment

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Holding

The Constitutional Court overruled a preliminary objection that declaratory judgments cannot be stayed, holding that where declarations are intertwined with consequential orders and a right of appeal has been exercised, the declarations are not final until the appellate court pronounces on them, so a stay may issue to safeguard the right of appeal. Exercising its inherent jurisdiction under section 98 of the Civil Procedure Act and Rule 2 of the Court of Appeal Rules, the Court found the applicant had shown an arguable appeal (a draft memorandum of appeal not being mandatory where grounds are articulated in the affidavit), that the appeal would be rendered nugatory absent a stay, and that the balance of convenience favoured the applicant. The application was granted and a stay of execution issued.

Facts

The respondents filed Constitutional Petition No. 15 of 2022 challenging the constitutionality of the appointment of sixteen High Court judges in an acting capacity for a two-year period. On 7 December 2022, the Constitutional Court declared that the acting appointments were inconsistent with Articles 2, 128, 138, 142 and 144 of the Constitution and unconstitutional, directed the Judicial Service Commission to take steps to regularize the appointments into substantive ones within six months, and held that the judicial services already rendered were not rendered void; each party was to bear its own costs. On 8 December 2022 the Attorney General lodged a Notice of Appeal expressing an intention to appeal the whole decision to the Supreme Court, and on the same day requested the typed proceedings. The Attorney General then applied to the Constitutional Court for a stay of execution of those orders pending the determination of the intended appeal. The respondents opposed the application, contending principally that declaratory judgments cannot be stayed.

Issues

Whether a declaratory judgment of the Constitutional Court is amenable to a stay of execution pending appeal.
Whether the applicant established a prima facie case of its right of appeal or a likelihood of success on appeal.
Whether the applicant would suffer irreparable damage or the appeal would be rendered nugatory if a stay was not granted.
Whether the balance of convenience favoured granting the stay of execution.

Orders

The application is granted.
A stay of execution of the orders of the Constitutional Court at Kampala until determination and final disposal of the intended appeal is issued.
The costs of this application shall abide the outcome of the appeal.

Key headnotes

Civil Procedure — Stay of Execution — Declaratory Judgments and Consequential Orders

A declaratory judgment that is intertwined with consequential orders is amenable to a stay of execution pending appeal; where a right of appeal has been exercised, the declarations of the court of first instance are not final and conclusive until the appellate court pronounces on them, and a stay postpones their binding effect to safeguard the right of appeal.

Constitutional Law — Constitutional Court — Inherent Jurisdiction to Stay Its Own Decision

The Constitutional Court, exercising its original jurisdiction, has inherent power under section 98 of the Civil Procedure Act and Rule 2 of the Court of Appeal Rules to stay its own final judgment and orders; Rule 6 of those Rules applies only to interlocutory applications made before the Court delivers its judgment.

Civil Procedure — Stay of Execution — Governing Principles

An applicant for a stay of execution must establish a prima facie case of a right of appeal or a likelihood of success, and that irreparable damage will be suffered or the appeal rendered nugatory if a stay is refused; where these are not established, the court must consider where the balance of convenience lies.

Civil Procedure — Stay of Execution — Likelihood of Success and Draft Memorandum of Appeal

An arguable point on appeal need not be one that must succeed but merely one deserving of the court's consideration; the failure to attach a draft memorandum of appeal is not fatal where the questions to be determined on appeal are sufficiently articulated in the affidavit in support of the application.

Legislation cited (14)

Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.2(2)
Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.6(2)(b)
Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.42
Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.43
Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.72
Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.76
Civil Procedure Act s.98
Constitutional Court (Petitions and References) Rules 2015 r.23
Constitution of Uganda art.2
Constitution of Uganda art.128
Constitution of Uganda art.138
Constitution of Uganda art.142(2)
Constitution of Uganda art.144(1)
Constitution of Uganda art.147(1)

Cases cited (13)

National Housing Corporation v Kampala District Land Board (Supreme Court Civil Appeal No. 6 of 2002)
Akankwasa Damian v Uganda (Supreme Court Civil Appeal No. 7 & 9 of 2011)
Hon. Theodore Ssekikubo & Others v Attorney General & Others (Constitutional Application No. 6 of 2013)
Dr. Ahmed Muhammed Kisuule v Greenland Bank (Civil Application No. 7 of 2010)
Attorney General v Eddie Kwizera (Supreme Court Civil Appeal No. 1 of 2020)
J.W.R Kazoora vs M.L.S Rukuba (supra)
Davis Wesley Tusingwire v Attorney General (Supreme Court Civil Appeal No. 1 of 2014)
Finasi/Roko Construction SPV Ltd & Anor v Roko Construction Ltd (Civil Application No. 220 of 2019)
Norman Washington Manley Bowen v Shahine Robinson and Neville Williams [2010] JMCA App 27
Chief R.A. Okoya & Ors v Santilli & Ors (SC 200/1989)
Lawrence Musiitwa v Eunice Busingye (Civil Application No. 18 of 1990)
Gashumba Maniraguha v Sam Nkudiye (Civil Application No. 24 of 2015)
Osman Kassim v Century Bottling Company Ltd (Civil Appeal No. 34 of 2019)

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