Wakilii

Kikungwe Issa and Anor v Standard Bank Investment Corporation and Anor (HCT-00-CC-MA 394 of 2004)

High Court · [2004] UGCOMMC 20 · 2004 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for temporary injunction arising from a civil suit by Members of Parliament claiming public ownership of privatised bank property
Decision
Application for temporary injunction dismissed with undertaking as to damages required from 2nd Respondent; main suit to proceed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that Members of Parliament as public-spirited citizens have locus standi under Article 17(1)(d) of the Constitution to bring an action to protect and preserve public property, provided they show sufficient interest, raise sufficiently grave issues of public importance involving high constitutional principle, and demonstrate prior efforts to resolve the matter. The application for a temporary injunction was denied on grounds that the applicants failed to prove a prima facie case with real prospects of success, as they did not produce evidence to rebut the respondents' documentation showing Plot 12 Kampala Road was included in the sale. The court accepted the respondents' undertaking to provide a bond for the sale value.

Outcome

Application for temporary injunction dismissed with undertaking as to damages required from 2nd Respondent; main suit to proceed

Facts

Five Members of Parliament, invoking Article 17 of the Constitution, filed suit claiming that Plot 12 Kampala Road (the former Uganda Commercial Bank head office) was public property being unlawfully sold by Stanbic Bank. The applicants alleged that when the government privatised UCBL, the head office building was expressly excluded from the assets sold to Standard Bank Investment Corporation in 2001, as shown in the bid document. They argued that Annex A to the Sale Agreement (which listed excluded assets) had been concealed from public scrutiny. Knight Frank had advertised the property for sale with bids opened in June 2004. The applicants sought an interim and temporary injunction to stop the sale. The respondents produced the Sale Agreement with Annex A showing the building was not excluded, a modified Annex A from February 2002, and a merger agreement transferring UCBL assets including Plot 12 to Stanbic. The property title remained in UCBL's name, though UCBL had been struck off the Companies Register.

Issues

  1. Whether Members of Parliament have locus standi under Article 17(1)(d) of the Constitution to bring an action to protect public property.
  2. Whether Plot 12 Kampala Road was excluded from the privatisation sale of Uganda Commercial Bank Limited to Stanbic Bank.
  3. Whether a temporary injunction should be granted to restrain the sale of Plot 12 Kampala Road pending final determination of the suit.

Orders

  • Application for temporary injunction denied.
  • 2nd Respondent directed to provide an on-demand bond equal to US$5.7 million (the highest bid value) as undertaking as to damages.
  • Interim Order of 21st June 2004 to be vacated upon provision of the undertaking.
  • Each party to bear own costs.
  • Main suit adjourned for scheduling on 15th September 2004 at 3:00 p.m.

Rules and key headnotes

Constitutional Law — Locus Standi — Public Interest Litigation — Article 17(1)(d) Constitutional Duty to Protect Public Property
A citizen invoking the constitutional duty under Article 17(1)(d) to protect and preserve public property has locus standi to bring an action in court, provided the citizen demonstrates (1) sufficient interest in the matter and is not a mere busybody, (2) that the issues raised are sufficiently grave and of sufficient public importance, (3) that they involve high constitutional principle, and (4) that the citizen has exhausted other available remedies before resorting to court.
Constitutional Law — Constitutional Interpretation — Distinction Between Applying and Enforcing Constitution and Interpreting It — Article 137 Referral
The jurisdiction to apply and enforce provisions of the Constitution is concurrent among courts and is distinct from the power to interpret the Constitution. A court hearing a matter involving enforcement of a constitutional provision need not refer the matter to the Constitutional Court for interpretation under Article 137 unless an interpretation of the constitutional provision itself is genuinely in dispute. An applicant seeking enforcement should not trigger a reference to avoid determination on the merits.
Administrative Law — Public Interest Litigation — Relaxation of Locus Standi Rules in Public Law — Test of Sufficient Interest
In public law matters, the rules on locus standi have been increasingly liberalised. The test is whether the applicant has sufficient interest in the matter, not whether personal rights or interests are directly involved. The real question is whether the applicant can show substantial default or abuse, and courts should not allow outdated technical rules of standing to prevent public-spirited citizens from vindicating the rule of law.
Civil Procedure — Temporary Injunction — Test for Grant — Serious Question to Be Tried Distinguished from Prima Facie Case with Probability of Success
On an application for an interlocutory or temporary injunction, the court must be satisfied that there are serious questions to be tried, meaning the material available must disclose that the plaintiff has real prospects of succeeding at trial. This test is substantively similar to but gives better guidance than the traditional prima facie case with probability of success test.
Civil Procedure — Temporary Injunction — Burden of Proof — Applicant Must Prove Real Prospects of Success
Where an applicant for temporary injunction alleges that documents produced by the respondent are not genuine or have been modified, the burden lies on the applicant under sections 103 and 110 of the Evidence Act to prove those allegations. It is insufficient merely to allege concealment once the respondent has produced documentation in rebuttal. The applicant must produce contradictory evidence showing real prospects of success at trial.
Civil Procedure — Temporary Injunction — Cross-Undertaking in Damages — Discretionary Nature — Public Interest Litigation Exception
The court's discretion to require a cross-undertaking in damages from an applicant for temporary injunction is exercisable under Order 37 rule 2(2) of the Civil Procedure Rules. In matters of public interest litigation brought by citizens in exercise of constitutional duties, the court may decline to exercise its discretion in favour of a cross-undertaking. Section 65 of the Civil Procedure Act provides a separate remedy after determination of the suit and is not the basis for a pre-emptive cross-undertaking.
Commercial Law — Privatisation — Transparency and Public Accountability — Confidentiality of Sale Agreements Involving Former Public Assets
Where a once-public institution is privatised, the terms of sale agreements cannot properly be treated as confidential in an era of transparency and public accountability. Full disclosure of such agreements, including all annexes, is necessary to prevent disputes over which assets were included in or excluded from the sale.

Legislation cited (15)

Cases cited (12)

  • Giella v Casman Brown [1973] EA 358
  • Kiyimba-Kaggwa v Katende [1985] HCB 43
  • Environments Action Network v Attorney General (Misc. Application No. 39 of 2001)
  • R v IRC ex parte Federation of Self Employed [1982] AC 643
  • Mtikill v Attorney General (Civil Suit No. 5 of 1993)
  • Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • CHANDRIKA PRASAD v The Republic of Fiji and The Attorney General of Fiji Action No. HBC 0217.00L (unreported)
  • R v Secretary of State ex parte World Development Movement [1995] 1 WLR 386
  • Shiv Construction v Endesha Enterprises (Civil Appeal No. 34 of 1992)
  • Foss v Harbottle
  • Ismail Allibhai v Karia (Civil Appeal No. 53 of 1995)
  • Barker v Furlong [1891] 2 Ch 172

Full judgment

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Kikungwe Issa and Anor v Standard Bank Investment Corporation and Anor (HCT-00-CC-MA 394 of 2004) [2004] UGCommC 20 (22 July 2004)
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.