Wakilii

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

High Court · [2019] UGHCCD 325 · 2019 Application Granted — Contempt Found AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for contempt of court arising from non-compliance with mandamus order in prior judicial review proceedings
Decision
Minister found in contempt, fined UGX 20,000,000, and ordered to pay Applicant all entitlements and allowances from January 2017 until he assumes office

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Holding

Held that the 1st and 2nd Respondents were in contempt of court for failing to comply with a mandamus order within 30 days as directed. Filing an appeal and application for stay of execution 37 days after the compliance deadline did not purge the contempt. Non-compliance with court orders undermines judicial independence under Article 128 of the Constitution and the rule of law. The Minister was personally liable for contempt in her official capacity and was fined UGX 20,000,000. Application allowed with costs and the Applicant entitled to all monetary benefits and allowances from January 2017.

Outcome

Minister found in contempt, fined UGX 20,000,000, and ordered to pay Applicant all entitlements and allowances from January 2017 until he assumes office

Facts

The Applicant successfully obtained judicial review in Miscellaneous Cause No. 268 of 2017, quashing the Minister of Health's decision barring him from being inaugurated as the Pharmaceutical Society of Uganda's representative to the National Drug Authority. On 24 August 2018, the court issued a mandamus order directing the Minister to issue an instrument facilitating the Applicant to take up his position within 30 days. The Minister failed to comply. On 30 October 2018, 37 days after the compliance deadline had passed, the Respondents filed a notice of appeal and an application for stay of execution. The Applicant then brought contempt proceedings. The Minister defended on the basis that filing the appeal and stay application purged her of contempt. The Applicant had been out of office since the original inauguration date of 9 January 2017.

Issues

  1. Whether the 1st Respondent, the Minister of Health, was in contempt of the court order dated 24 August 2018 for failing to issue an instrument facilitating the Applicant to take up his position as Representative of the Pharmaceutical Society of Uganda to the National Drug Authority.
  2. Whether filing an appeal and an application for stay of execution after the period for compliance has expired purges a party of contempt.
  3. What remedies are available where a Minister is found in contempt of a mandamus order.

Orders

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

Rules and key headnotes

Judicial Review — Contempt of Court — Elements of Contempt
For conduct to amount to contempt of court, three elements must be established: the existence of a lawful order, the potential contemnor's knowledge of the order, and the potential contemnor's failure to comply with the order.
Contempt of Court — Filing of Appeal and Stay Application — No Defence to Contempt
Filing an appeal or an application for stay of execution after the time for compliance with a court order has expired does not purge a party of contempt. The obligation to obey court orders is uncompromising and a challenge to the order by way of appeal is no defence to contempt proceedings.
Independence of the Judiciary — Contempt and Article 128 — Ministerial Oath
Contempt of lawful court orders directly or indirectly infringes on the independence of the judiciary guaranteed under Article 128 of the Constitution and undermines the rule of law. A Minister who takes the Oath of Minister swears to support and uphold the Constitution, and this enjoins the Minister to comply with judicial orders. Any contempt is unconstitutional and criminal in nature.
Contempt of Court — Ministerial Liability — Official vs Personal Capacity
A Minister may be personally liable for contempt in exceptional circumstances where he or she has engaged in action which amounts to default. However, normally the appropriate action is to make a finding of contempt against the Minister acting in his or her official capacity rather than personal capacity.
Contempt of Court — Remedies — Fines and Compensation
The very fact of a finding of contempt against a Minister or department is considered sufficient vindication of the rule of law. However, where disobedience causes injury to the party entitled to benefit from the order and appears deliberate, the court may impose a punitive fine and order payment of all entitlements and monetary benefits lost as a result of the non-compliance.

Legislation cited (1)

Cases cited (14)

  • Babra Nambi v Raymond Lwanga (Miscellaneous Application No. 213 of 2017)
  • Sendege Senyondo v The Bank Secretary Bank of Uganda and Another (Miscellaneous Application No. 98 of 2018)
  • 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)
  • In the Matter of Collins Odumba [2016] eKLR
  • Johnson v Grant 1923 SC 789
  • Kenya Tea Growers Association v Francis Atwoli and 5 Others [2012] eKLR
  • Clarke and Others v Chadburn and Others [1985] 1 All ER 211 (PC)
  • M v Home Office [1994] 1 AC 377
  • Attorney General v Times Newspapers Ltd [1974] AC 273
  • Semanda and 2 Others v Kaheebwa and Another (Miscellaneous Application No. 1625 of 2016)
  • 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 (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 325 (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.