Akankwasa Damian v Uganda [2012] UGSC 4

Supreme Court · 2012 Application Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Applications to the Supreme Court for interim orders of stay of execution pending determination of substantive applications for stay of execution, arising from Constitutional Court decisions dismissing constitutional references.

Decision

Applications for interim orders of stay of execution dismissed; the criminal trials against the applicant to proceed.

The full judgment

Read the complete, verbatim text of this judgment.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Supreme Court dismissed the applicant's applications for interim orders of stay of execution pending hearing of his substantive stay applications. The preliminary objection that the application should first have been filed in the Court of Appeal was rejected: the Court has discretion under its Rules to entertain such an application to safeguard the right of appeal, and the objection had been raised belatedly without a supporting affidavit. On the merits, applying the settled three conditions, the applicant failed to show a likelihood of success on appeal, failed to show irreparable injury or that the appeal would be rendered nugatory, and the balance of convenience favoured expediting the criminal trial.

Facts

The applicant, formerly the Executive Director of the National Forest Authority, was separately charged before a Magistrate under the Anti Corruption Act with causing financial loss (section 20) and illicit enrichment (section 31), for acts allegedly committed between August 2007 and February 2008. Instead of pleading, he sought constitutional references, and the Magistrate framed questions for the Constitutional Court, principally whether charging him under the Anti Corruption Act for conduct earlier criminalised under the repealed Penal Code Act offended Articles 28(7) and (12), 26(1) and 27 of the Constitution. In Constitutional Petitions No. 04 and 05 of 2011 the Constitutional Court dismissed both references, holding the new offences were re-enactments of the repealed provisions and that the constitutional rights invoked were not absolute, and directed the trials to proceed. The applicant filed notices of appeal and applications for stay of execution, then sought interim orders of stay pending determination of those substantive applications.

Issues

Whether the application for stay of execution was incompetent for not having been filed in the Court of Appeal/Constitutional Court first.
Whether the applicant established a prima facie case or a likelihood of success on the intended constitutional appeal.
Whether the applicant would suffer irreparable injury, or the appeal be rendered nugatory, if the interim stay were not granted.
Where the balance of convenience lay as between staying execution and allowing the criminal trial to proceed.

Orders

Applications for interim orders of stay of execution dismissed.
No order as to costs.

Key headnotes

Civil Procedure — Stay of Execution — Discretion of the Supreme Court to entertain an application not first made to the Court of Appeal

The Supreme Court has a wide discretion under its Rules to entertain an application that is required to be brought first to the Court of Appeal where this is necessary to safeguard the right of appeal, but that discretion is to be exercised only in exceptional circumstances depending on each case, such as the need to expedite resolution of the substantive matter.

Civil Procedure — Stay of Execution — Conditions for grant

An applicant for stay of execution must establish a likelihood of success or a prima facie case on the intended appeal, that irreparable damage will be suffered or the appeal rendered nugatory if the stay is refused, and, where the first two are not established, that the balance of convenience favours the stay.

Civil Procedure — Preliminary Objection — Objection raised belatedly and unsupported by affidavit

A preliminary objection to the competence of an application is liable to fail where it is raised belatedly in reply to the applicant's submissions and is not supported by any affidavit raising the objection.

Constitutional Law — Article 28(7) — Charging under a re-enacted offence

Article 28(7) is satisfied where the acts or omissions charged constituted a defined criminal offence carrying a prescribed penalty at the time they were committed; charging an accused under a later statute that re-enacts the earlier offence does not contravene the provision, and a mere enhancement of the sentence in the later law is not material for this purpose.

Legislation cited (13)

Constitution of Uganda art.28(7)
Constitution of Uganda art.28(8)
Constitution of Uganda art.28(12)
Constitution of Uganda art.26(1)
Constitution of Uganda art.27
Constitution of Uganda art.137(5)
Anti Corruption Act s.20
Anti Corruption Act s.31
Penal Code Act s.269
Rules of the Supreme Court Rule 5(2)
Rules of the Supreme Court Rule 40(1)
Rules of the Supreme Court Rule 75
Constitutional Court (Petitions and References) Rules SI No. 91 of 2005

Cases cited (3)

Somali Democratic Republic v Anoop S. Sunderlal Trean (Civil Application No. 11 of 1988)
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)

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.