Basajjabalaba & Another v Attorney General (Miscellaneous Application 4 of 2018)

Supreme Court · [2018] UGSC 56 · 2018 Application Granted ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application to the Supreme Court for an interim order of stay of execution of Constitutional Court orders, pending the hearing of the applicants' substantive application for stay of execution

Decision

Interim stay of execution of the Constitutional Court's orders granted pending the hearing and determination of the applicants' main application for stay of execution

The full judgment

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Holding

The Supreme Court granted an interim order of stay of execution. It held that, under Rule 41(2) read with Rule 2(2) of the Judicature (Supreme Court) Rules, the Court has discretion to entertain an application that ought to have been made to the Court of Appeal first; since the Constitutional Court's judgment was delivered by a Justice who was not on the coram, the applicants were deprived of the opportunity to apply for a stay there, which was sufficient reason to entertain the application. On the only contested ground, the Court found that the Constitutional Court's orders directing the criminal trial to proceed were self-executing and must be acted upon, so there was an imminent threat of execution.

Facts

The applicants had filed Constitutional Petition No. 12 of 2013 challenging the constitutionality and legality of their trial and prosecution in Criminal Case No. 0003 of 2013 in the Anti-Corruption Division of the High Court, seeking orders permanently staying those proceedings. The Constitutional Court denied the stay and directed the Registrar to remit the file to the High Court for the trial to proceed. Dissatisfied, the applicants lodged a Notice of Appeal in the Constitutional Court, served it on the respondent, requested certified copies of the proceedings and judgment, and prepared a draft memorandum of appeal. They filed a substantive application for stay of execution (Miscellaneous Application No. 3 of 2018) in the Supreme Court and then this application for an interim stay pending its determination. They contended the Constitutional Court's orders were self-executing and posed an imminent threat to the integrity of their intended appeal. The respondent opposed the application as irregularly before the Court and denied any serious threat of execution.

Issues

Whether the application for an interim order of stay of execution was properly before the Supreme Court, given that Rule 41(1) requires such applications to be made to the Court of Appeal first.
Whether there was a serious threat of execution of the Constitutional Court's orders justifying the grant of an interim order of stay of execution.

Orders

An interim order doth issue staying execution of the decision and orders of the Constitutional Court in Constitutional Petition No. 12 of 2013 directing the Registrar to remit the file for Criminal Case No. 0003 of 2013 to the Anti-Corruption Division of the High Court for the trial of the applicants to proceed, until the hearing and determination of the applicants' main application for stay of execution.
An interim order doth issue staying execution of the decision and orders of the Constitutional Court ordering the recommencement and continuation of the applicants' trial in Criminal Case No. 0003 of 2013, until the hearing and determination of the main application for stay of execution.
An interim order doth issue restraining any further or other action in pursuance of the Constitutional Court's order sanctioning the recommencement and continuation of the applicants' trial, until the hearing and determination of the main application for stay of execution.
Costs of this application shall be in the cause.

Key headnotes

Civil Procedure — Interim Stay of Execution — Conditions for Grant

An interim order of stay of execution may be granted where there is a substantive application for stay pending, a Notice of Appeal has been lodged, and there is a serious threat of execution before the hearing of the substantive application; at this stage the court does not delve into the merits of the intended appeal.

Civil Procedure — Jurisdiction — Rule 41 Order of Applications — Discretion under Rule 2(2)

Notwithstanding Rule 41(1) requiring an application that may be made either to the Supreme Court or the Court of Appeal to be made to the Court of Appeal first, Rule 41(2) read with Rule 2(2) confers on the Supreme Court a discretion to entertain such an application at first instance where the justice of the case so requires and to safeguard the right of appeal.

Civil Procedure — Execution — Self-Executing Orders — Threat of Execution

Court orders are not issued in vain and must be acted upon by whomsoever they are directed to; an order directing that a criminal trial proceed is self-executing and constitutes an imminent threat of execution, irrespective of whether the responsible authority has yet taken any step to act upon it.

Legislation cited (8)

Judicature (Supreme Court) Rules r.2(2)
Judicature (Supreme Court) Rules r.6(2)(b)
Judicature (Supreme Court) Rules r.41(1)
Judicature (Supreme Court) Rules r.41(2)
Judicature (Supreme Court) Rules r.42
Judicature (Supreme Court) Rules r.43(1)
Judicature (Supreme Court) Rules r.50
Judicature (Supreme Court) Rules r.51

Cases cited (6)

Theodore Ssekikubo and Others v Attorney General (Constitutional Application No. 4 of 2014)
Francis Drake Lubega v Attorney General (Miscellaneous Application No. 13 of 2015)
Attorney General v Fuelex (U) Limited (Constitutional Application No. 4 of 2014)
Yakobo M Sekungu and Others v Cresensio Mukasa (Civil Application No. 5 of 2013)
Guiliano Gargio v Calaudio Casadio (Civil Application No. 3 of 2013)
Hwan Sung Industries Limited v Tajdin Hussein and 2 Others (Civil Appeal No. 19 of 2008)

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