Wakilii

Hon. Theodore Ssekikubo & Others v The Attorney General & Others (Constitutional Application 6 of 2013)

Supreme Court · [2013] UGSC 21 · 2013 Application Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to the Supreme Court for stay of execution and stay of proceedings pending an intended appeal from rulings of the Constitutional Court
Decision
Application partly allowed: stay of execution of the Constitutional Court's mandatory injunction granted pending the intended appeal; stay of proceedings refused.

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Treatment recorded in citing cases followed in 3 · applied in 1 Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

On an application for stay pending an intended appeal, the Supreme Court held that a right of appeal under article 132(3) of the Constitution lies only against a final decision of the Constitutional Court interpreting the Constitution, not against interlocutory decisions. However, the Constitutional Court's decisions on admissibility of affidavit evidence and on coram involved constitutional interpretation and were appealable as of right, so the intended appeal met the conditions precedent. The Court (6 to 1) stayed execution of the Constitutional Court's mandatory injunction of 6 September 2013 pending the appeal, but unanimously declined to stay the proceedings. It also held a defective jurat is a curable irregularity under article 126(2)(e), and that a seven-member coram is a duly constituted full bench.

Facts

The four applicants were Members of the 9th Parliament elected on the NRM ticket. After disputes with their party, they were arraigned before the Party disciplinary committee, found guilty and expelled. The Party's Secretary General asked the Speaker to declare their parliamentary seats vacant, but the Speaker declined, citing the absence of a specific constitutional provision. Party members and the NRM filed Constitutional Petitions Nos. 16, 19 and 21 of 2013 challenging the Speaker's refusal, and Constitutional Applications Nos. 14 and 23 of 2013 sought to restrain the applicants from accessing Parliament. The Constitutional Court overruled the applicants' preliminary objections and, by a majority of 4 to 1, granted a mandatory injunction on 6 September 2013 barring the applicants from Parliament until final judgment in the consolidated petitions. The applicants lodged notices of appeal and brought this application to the Supreme Court seeking a stay of execution of that injunction and a stay of the petition proceedings pending their intended appeal.

Issues

  1. Whether the applicants' affidavits were defective for failing to indicate in the jurat the place where they were commissioned.
  2. Whether the applicants have a right of appeal against interlocutory decisions made by the Constitutional Court in the course of the consolidated petitions.
  3. Whether the applicants satisfied the conditions for a stay of execution and a stay of proceedings pending their intended appeal.

Orders

  • By a majority of 6 to 1, execution and/or effecting of the order issued by the Constitutional Court on 6/9/2013 is stayed until disposal of the applicants' intended appeal.
  • By a unanimous decision, no order is granted for stay of proceedings in the consolidated petitions before the Constitutional Court.
  • By a unanimous decision, each party shall bear its own costs of the application.

Key headnotes

Constitutional Law — Appeals — Right of appeal from the Constitutional Court under article 132(3)
A right of appeal to the Supreme Court under article 132(3) of the Constitution lies only against a final decision of the Court of Appeal sitting as a Constitutional Court on the interpretation of a provision of the Constitution, and does not extend to interlocutory decisions made in the course of the proceedings.
Evidence — Affidavits — Defective jurat — Omission of place of commissioning
An affidavit's failure to indicate in the jurat the place where it was commissioned is a mere irregularity that may be cured under article 126(2)(e) of the Constitution and does not render the affidavit invalid.
Civil Procedure — Stay of execution and proceedings pending appeal — Conditions precedent
To obtain a stay of execution or proceedings pending appeal, an applicant must establish that the appeal has a likelihood of success or a prima facie right of appeal, that irreparable damage will be suffered or the appeal rendered nugatory if a stay is refused, and that the application was instituted without delay.
Civil Procedure — Appeals — Duty of the court to preserve the subject matter of an appeal
Where a party exercises an unrestricted right of appeal and the appeal has a likelihood of success, the court has a duty to make such orders as will prevent the appeal, if successful, from being rendered nugatory.
Constitutional Law — Supreme Court — Composition of a full bench under article 131(2)
A full bench of all members of the Supreme Court for the hearing of constitutional appeals under article 131(2) of the Constitution is duly constituted when the coram consists of seven members of the Court.

Legislation cited (15)

  • Constitution of Uganda Article 28
  • Constitution of Uganda Article 98(4)
  • Constitution of Uganda Article 126(2)(e)
  • Constitution of Uganda Article 131(2)
  • Constitution of Uganda Article 132(2)
  • Constitution of Uganda Article 132(3)
  • Constitution of Uganda Article 137(1)
  • Constitution of Uganda Article 137(3)
  • Oath Act (Cap 19) s.5
  • Oath Act (Cap 19) s.6
  • Rules of the Supreme Court rule 2(2)
  • Rules of the Supreme Court rule 6(2)(b)
  • Rules of the Supreme Court rule 42
  • Rules of the Supreme Court rule 43(1)
  • Rules of the Supreme Court rule 72

Cases cited (10)

  • Legal Brains Trust Ltd Vs. The Attorney General of Uganda, EA Court of Justice, Appeal Division Appeal No.4 of 2012
  • Joseph Orosiski Vs The Attorney General of Canada, SC of Canada No. 20411 of 1989
  • Environmental Action Network Ltd s Joseph Elyau, CA LNO 89 of 2005
  • Akankwasa Damian v Uganda (Constitutional Application Nos. 7 and 9 of 2011)
  • J.W.R. Kazoora v Rukuba (Civil Appeal No. 13 of 1992)
  • Uganda Polybags Ltd v Development Finance Company Ltd and 3 Others (Miscellaneous Application No. 2 of 2000)
  • Dr. Ahamed Kalule v Green Land Bank in Liquidation (Civil Application No. 17 of 2010)
  • Republic of Kenya V Prof Anyang Nyong'o and 10 others EACJ Appl Nos. 7 and 9 of 2007
  • Kakooza John Baptist v Electoral Commission (Civil Appeal No. 11 of 2007)
  • Banco Arabe Espanol v Bank of Uganda (Civil Application No. 8 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.