Wakilii

Ekau David v Dr. Jane Ruth Aceng and 2 Others (Miscellaneous Application No. 746 of 2018)

High Court · [2019] UGHCCD 297 · 2019 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for contempt of court arising from disobedience of orders in Miscellaneous Cause No. 268 of 2017
Decision
Minister of Health found in contempt; fine imposed; applicant awarded back entitlements from January 2017

Observed later treatment

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Holding

The High Court held that the Minister of Health was in contempt of court for failing to comply with orders issued on 24 August 2018 requiring her to facilitate the applicant's appointment to the National Drug Authority. The Court rejected the respondent's defence that filing an appeal and application for stay of execution purged the contempt, as these were filed 37 days after the compliance deadline had expired. The Court imposed a fine of 20 million shillings and ordered payment of all entitlements to the applicant from January 2017.

Outcome

Minister of Health found in contempt; fine imposed; applicant awarded back entitlements from January 2017

Facts

The applicant filed an application for judicial review seeking orders of certiorari and mandamus to compel the Minister of Health to inaugurate him as representative of the Pharmaceutical Society of Uganda to the National Drug Authority. On 24 August 2018, the Court granted the application and ordered the Minister to issue the necessary instrument within 30 days. The Minister failed to comply by the 23 September 2018 deadline. On 30 October 2018—37 days after the deadline—the respondents filed an application for stay of execution, citing a pending appeal. The applicant then brought contempt proceedings. The respondents argued they had purged the contempt by filing the appeal and stay application. The applicant had been unable to take up his position since the January 2017 inauguration.

Issues

  1. Whether the 1st Respondent who is the Minister of Health was in contempt of the court order dated 24th August 2018 by failing to issue an instrument facilitating the applicant to take up his position as Representative of the Pharmaceutical Society of Uganda.
  2. Whether the 1st Respondent was in contempt by failing to ensure that the applicant took up his role as a member of the National Drug Authority within 30 days from the date of the ruling.
  3. What remedies are available to the applicant.

Orders

  • The 1st or 2nd respondent is found in contempt of court for failure to have the applicant take his position on the National Drug Authority as the elected Representative of Pharmaceutical Society of Uganda.
  • The 1st or 2nd respondent is directed to pay UGX 20,000,000 as a fine.
  • The fine should be deposited in court within a reasonable time.
  • The applicant should be paid all entitlements and monetary benefits including allowances since January 2017 until he takes office as the Elected Representative of Pharmaceutical Society of Uganda.
  • Application allowed with costs.

Rules and key headnotes

Contempt of Court — Elements — Knowledge and Disobedience of Court Order
Before any action can be found to amount to contempt of court, the following principles must be established: existence of a lawful order; the potential contemnor's knowledge of the order; and the potential contemnor's failure to comply, that is, disobedience of the order.
Contempt of Court — Filing of Appeal as Defence — Obligation to Comply Pending Appeal
It is not a defence to an application to be found in contempt to say that the disobedience was as a consequence of having challenged by way of an appeal the order under review for disobedience. Mere filing of an appeal or an application against the order does not purge the contempt. The uncompromising obligation to obey court orders remains until the order is lawfully stayed or set aside.
Contempt of Court — Application for Stay Filed After Deadline — Effect on Contempt
Where a party fails to comply with a court order within the time specified and subsequently files an application for stay of execution after the deadline for compliance has already expired, the party is already in contempt at the time of filing the stay application and cannot rely on the stay application as a defence to the contempt.
Independence of Judiciary — Constitutional Duty of Ministers — Article 128
The support and upholding of the Constitution enjoins a Minister to comply with Article 128 of the Constitution which provides for independence of the judiciary. Any acts of contempt of lawful court orders directly or indirectly infringe on the independence of the judiciary and to a greater extent the rule of law. A Minister who takes the Oath of Minister swears to support and uphold the Constitution and is therefore bound to obey court orders.
Contempt of Court — Minister Acting in Official Capacity — Liability for Contempt
A Minister may be personally liable for contempt if he or she has engaged in action which amounts to default. However, the appropriate action will normally be to make a finding of contempt against a Minister acting in his or her official capacity rather than his or her personal capacity. The finding of contempt will normally be made against the Minister acting in his or her official capacity as the order granted in judicial review will normally have been made against the minister.
Contempt of Court — Remedies — Fine and Entitlements
The very fact of a finding of contempt against a Minister or department is considered sufficient vindication of the rule of law and sufficient to ensure that orders of the courts are obeyed. However, where actions of disobedience are causing injury to the party entitled to relief and are deliberately intended to frustrate the court's order, the court is obliged to give punitive sanctions including a fine and an order for payment of entitlements to ensure that the respondent obliges to principles of rule of law and constitutionalism.
Contempt of Court — Purpose — Rule of Law Not Personal Dignity
The essence of contempt proceedings is not to assuage the feelings of the judge or install the dignity of the court but to safeguard the supremacy of the law. It is not the dignity of the court which is offended but the fundamental supremacy of the law which is challenged. The reason why courts will punish for contempt is to safeguard the rule of law which is fundamental in the administration of justice.

Legislation cited (1)

Cases cited (14)

  • Babra Nambi v Raymond Lwanga (Miscellaneous Application No. 213 of 2017)
  • Hadkinson v Hadkinson [1952] 2 All ER 567
  • Erasmus Masiko v John Imaniraguha and Others (Miscellaneous Application No. 1481 of 2016)
  • Housing Finance Bank Ltd and Another v Edward Musisi (Miscellaneous Application No. 158 of 2010)
  • Sendege Senyondo v The Bank Secretary Bank of Uganda and Another (Miscellaneous Application No. 98 of 2018)
  • Clarke and Others v Chadburn and Others [1985] 1 All ER (PC) 211
  • Kenya Tea Growers Association v Francis Atwoli and 5 ors [2012] eKLR
  • In the Matter of Collins Odumba [2016] eKLR
  • Johnson v Grant 1923 SC 789
  • M v Home Office [1994] 1 AC 377
  • Semanda and 2 Others v Kaheebwa and Another (Miscellaneous Application No. 1625 of 2016)
  • Attorney General v Times Newspapers Ltd [1974] AC 273
  • Stanbic Bank (U) Ltd and Another v Commissioner General Uganda Revenue Authority (Miscellaneous Application No. 0042 of 2010)
  • Re Contempt of Dougherty 492, Michigan 81, 97 (1987)

Full judgment

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Ekau David v Dr. Jane Ruth Aceng and 2 Others (Miscellaneous Application No. 746 of 2018) [2019] UGHCCD 297 (17 June 2019)
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.