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Akankwasa Damian v Uganda [2012] UGSC 7

Supreme Court · 2012 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Applications for interim orders of stay of execution pending determination of the substantive applications for stay, arising from rulings of the Constitutional Court
Decision
Applications for interim orders of stay of execution dismissed; the criminal trials against the applicant to proceed

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Holding

The Supreme Court dismissed the applicant's consolidated applications for interim orders of stay of execution of Constitutional Court orders directing that corruption trials against him proceed. The Court overruled the respondent's preliminary objection that the applications should have been lodged in the Constitutional Court first, holding that under Rule 40(2) it has discretion to entertain such applications in exceptional circumstances, here the need to expedite criminal charges, and that the objection was raised belatedly without supporting affidavit. On the merits, the Court found no apparent likelihood of success on appeal, no irreparable injury, and that the balance of convenience favoured having the trial expedited.

Facts

The applicant, formerly Executive Director of the National Forest Authority, was charged in separate cases with illicit enrichment and causing financial loss under the Anti-Corruption Act, for acts allegedly committed between August 2007 and February 2008. Before pleading, he obtained constitutional references to the Constitutional Court challenging the charges as inconsistent with Articles 28(7) and (12) and 26(1) of the Constitution, contending that the offences had been repealed and re-enacted with higher penalties, and that the illicit enrichment provision violated his property rights. The Constitutional Court dismissed both references and directed the trials to proceed. The applicant filed notices of appeal and applications for stay of execution, then applications for interim orders pending those substantive applications, claiming a high likelihood of success and irreparable loss of liberty if convicted.

Issues

  1. Whether the applications for stay of execution were incompetent for having been filed in the Supreme Court rather than the Constitutional Court first, contrary to Rule 40(1) of the Rules of the Supreme Court.
  2. Whether the applicant satisfied the conditions for the grant of interim orders of stay of execution, namely a prima facie likelihood of success on appeal, irreparable injury or the appeal being rendered nugatory, and the balance of convenience.

Orders

  • The applications for interim orders of stay of execution are dismissed.
  • No order as to costs.

Key headnotes

Civil Procedure — Stay of Execution — Forum — Discretion to Entertain Application Required to Be Filed in Lower Court First
Although Rule 40(1) of the Rules of the Supreme Court requires an application capable of being made to either court to be made to the Court of Appeal first, Rule 40(2) gives the Supreme Court a wide discretion to entertain such an application to safeguard the right of appeal, but that discretion is exercised only in exceptional circumstances depending on each case, such as the need to expedite resolution of pending criminal charges.
Civil Procedure — Preliminary Objection — Objection Raised Belatedly Without Supporting Affidavit
A preliminary objection to the competence of an application that is raised belatedly, only in reply to the applicant's submissions and unsupported by any affidavit, is without merit.
Civil Procedure — Stay of Execution — Conditions for Grant
An applicant for a stay of execution under Rule 5(2) of the Rules of the Supreme Court must establish that the appeal has a likelihood of success or a prima facie case, that irreparable damage will be suffered or the appeal rendered nugatory if the stay is refused, and, where those conditions are not established, the court considers where the balance of convenience lies; the principles governing temporary injunctions apply with necessary modifications.
Constitutional Law — Article 28(7) — Re-enactment of Repealed Offence With Enhanced Penalty
Where an act constituted a defined criminal offence with a prescribed punishment at the time it was committed, charging the accused under a subsequent re-enacting provision does not offend Article 28(7) of the Constitution merely because the later provision enhances the sentence; the difference in sentence is not material to the validity of the charge.

Legislation cited (12)

  • Constitution Article 28(7)
  • Constitution Article 28(12)
  • Constitution Article 28(8)
  • Constitution Article 26(1)
  • Constitution Article 27
  • Constitution Article 137(5)
  • Anti-Corruption Act s.20
  • Anti-Corruption Act s.31
  • Penal Code Act s.269
  • Rules of the Supreme Court Rule 40(1)
  • Rules of the Supreme Court Rule 5(2)
  • Rules of the Supreme Court Rule 75

Cases cited (3)

  • National Housing & Construction Corporation v Kampala District Land Board and Another (Civil Application No. 6 of 2002)
  • National Enterprise Corporation v Mukisa Foods Ltd (Miscellaneous Application No. 7 of 1998)
  • Somali Democratic Republic v Anoop S. Sunderlal Trean (Civil Application No. 11 of 1988)
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.