Wakilii

Lukwago v Attorney General & Ors (Misc. Application No. 94 of 2014)

High Court · [2014] UGHCCD 47 · 2014 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for temporary injunction and contempt orders arising from Misc. Cause No. 362 of 2013
Decision
Temporary injunction granted to maintain the applicant as Lord Mayor KCCA pending final determination of Misc. Cause 362 of 2013; all by-election activities stopped

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Holding

Held that the respondents were in contempt of the Court Order of 25 November 2013, which had been validated by Justice Nyanzi's ruling of 28 November 2013, by proceeding with the removal of the applicant from the office of Lord Mayor KCCA and organizing a by-election. The Court Order had been effectively served on the Minister before the resolution to remove the applicant was passed, and the by-election process was illegal, being premised on a violation of a valid Court Order. The temporary injunction was granted restraining the respondents from proceeding with the by-election.

Outcome

Temporary injunction granted to maintain the applicant as Lord Mayor KCCA pending final determination of Misc. Cause 362 of 2013; all by-election activities stopped

Facts

The applicant, Elias Lukwago, was Lord Mayor of Kampala Capital City Authority (KCCA). Following a tribunal investigation, a KCCA meeting was scheduled for 25 November 2013 to consider his removal. On the same day, the High Court Registrar granted an Interim Order at 8:58am halting the KCCA meeting fixed for 9:00am. Counsel for the applicant served the order on a councillor and attempted to serve the Minister chairing the meeting, but was prevented by security. A councillor (Sewanyana) served the order on the Minister during the meeting. Despite being informed of the Court Order, the Minister proceeded with the meeting and councillors voted to remove the applicant at 9:30am. The Minister then notified KCCA's Executive Director of the removal, who notified the Electoral Commission (EC) of a vacancy. The EC subsequently commenced preparations for a by-election to replace the Lord Mayor, with nominations scheduled for 31 March and 1 April 2014 and polling for 17 April 2014. On 28 November 2013, Justice Nyanzi upheld the Registrar's Interim Order. The applicant then filed this application seeking contempt findings and a temporary injunction to stop the by-election.

Issues

  1. Whether there is a cause of action against the Chairman of the Electoral Commission for immunity under section 49 of the Electoral Commission Act.
  2. Whether the Interim Order of 25 November 2013 was effectively served on the Minister before the KCCA meeting resolved to remove the applicant from the office of Lord Mayor.
  3. Whether the Court Order of 25 November 2013 was authentic and valid.
  4. Whether the respondents were in contempt of the Court Order of 25 November 2013 as validated by Justice Nyanzi's ruling of 28 November 2013.
  5. Whether the applicant is entitled to a temporary injunction restraining the respondents from organizing a by-election for Lord Mayor KCCA pending final determination of Misc. Cause 362 of 2013.

Orders

  • Temporary injunction granted restraining the respondents from declaring the seat of Lord Mayor KCCA vacant and organizing a by-election pending final determination of Misc. Cause No. 362 of 2013.
  • All actions related to the by-election process including nominations on 31 March and 1 April 2014 and the election fixed for 17 April 2014 stopped forthwith.
  • No organ, employee or agent of government, the Electoral Commission, KCCA or any other such organ shall make any attempts to remove the applicant from the office of Lord Mayor KCCA until Misc. Cause 362 of 2013 is disposed of conclusively and in finality.
  • Costs awarded to the applicant.

Rules and key headnotes

Contempt of Court — Disobedience of Court Orders — Elements to Establish Civil Contempt
For contempt to exist, the complainant must prove four elements: (a) the existence of a lawful order; (b) the potential contemnor's knowledge of the order; (c) the potential contemnor's ability to comply; and (d) the potential contemnor's failure to comply. The standard of proof must be higher than proof on a balance of probabilities and almost but not exactly beyond reasonable doubt.
Service of Process — Court Orders — Effective Service in Urgent Circumstances
A Court Order speaks from the date it is made and not from the date it is extracted. Where a Court Order is served on the person targeted before a resolution or action is taken, that person is bound by the order regardless of whether it was served through formal channels or directly by an officer of court or party. The target of the order cannot dismiss it as unauthentic without verifying with the court; the responsible action is to halt proceedings and verify the order's authenticity.
Judicial Review — Respect for Court Orders — Constitutional Duty of State Organs
Article 128(3) of the Constitution requires all organs and agencies of the State to accord to courts such assistance as may be required to ensure the effectiveness of the courts. A party who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it. Suitors or their solicitors cannot themselves judge whether an order is null or valid. To obey orders of court is to obey an order made both ex parte or inter partes. Where a party considers an ex parte order to cause undue hardship, the proper remedy is an application for variation, not disobedience.
Rule of Law — Supremacy of Constitution — Duty to Respect Judicial Orders
The supremacy of the Constitution cannot be overemphasized. All laws must conform to the Constitution as the supreme law of the land. Once a polity has enacted a constitution, the rule of law becomes the cornerstone of all laws. The judiciary is the guardian of the rule of law and the central pillar of the democratic state. Rule of law requires that all parties, including government organs and their agents, must bring themselves in line with orders of court. To disregard Court Orders is to set a precedent that people should not believe in courts, creating a medium for descent into anarchy.
Contempt of Court — Actions in Violation of Court Orders — Illegality of Subsequent Proceedings
Where a meeting or process is conducted in violation of a subsisting Court Order, any resolution or decision emanating from that meeting is illegal. Actions taken in furtherance of such illegal resolution, including communication to other state organs to implement the resolution, are also illegal and must be halted. An electoral process premised on an illegality is itself illegal and must be stopped forthwith.
Independence of Judiciary — Article 128 — Duty of Attorney General
The Attorney General, as principal legal adviser of government under Article 119(3) and (4)(a) of the Constitution, has a duty to give requisite professional legal advice to all government officers and agents. Where an urgent court application touches on a government meeting scheduled for the same day, the responsible and diligent course is for the Attorney General to advise government to halt the meeting pending the court hearing. Failure to do so constitutes gross professional misconduct and a breach of the duty to uphold the independence of the judiciary under Article 128.
Temporary Injunctions — Grant Where Court Order Has Been Violated
Where a Court Order has been violated and subsequent actions have been taken in furtherance of that violation, a temporary injunction will be granted to halt those actions and maintain the status quo pending final determination of the main suit. The court may protect its own process from being degraded and misused by staying proceedings or actions which have only been made possible by acts contrary to the rule of law.

Legislation cited (19)

Cases cited (23)

  • Maximmov Oleg Petrovich v Premchandra Sheoni and Another (HCCS No. 802 of 1997)
  • Auto Garage v. Motokov (1971) E.A 514
  • George William Kateregga v Commissioner for Land Registration and 12 Others (Misc. Application No. 347 of 2013)
  • Kariuki and 2 ors v Minster for Gender, Sports Culture and Social Services and two ors (2004) Vol. 1 KLR, p.588
  • Crane Finance Co Ltd v Makerere Properties Ltd (Civil Appeal No. 1 of 2001)
  • Uganda Super League Limited v Attorney General and Others (Constitutional Petition No. 22 of 2013)
  • Hon. Sitenda Sebalu v. the Sec General of the EAC Reference No. 8 of 2012 in the East African Court of Justice at Arusha 1st Instance Division
  • Nyamongo & anor v. Kenya Posts and Telecommunications Cooperation (1990-1994) EALR p.464
  • Abdi Wahab Abdullahi Ali v. The Governor, County Government of Garissa Constitutional Petition No. 8 of 2013
  • David Sejjaaka Nalima v Rebeccah Musoke (Civil Appeal No. 12 of 1985)
  • Wild Life Lodges Ltd v. County Council of Narok and anor (2005) Vol 2 EALR p.344
  • Chuck v. Cremer (1) Corp Temp 442
  • Muriisa Nicholas v Attorney General and 3 Others (Misc. Cause No. 35 of 2012)
  • Mohd Sharfuddin (Died) By Lrs v Mohd Jamal and Ors (2003) (3) ALD 83 2003 (5) ALT 86
  • Robert Kavuma v Hotel International (Civil Appeal No. 8 of 1990)
  • Suleiman Muwonge Lubega v Attorney General (Constitutional Application No. 7 of 2012)
  • Yoweri Were Wekoye v Attorney General and Electoral Commission (Constitutional Application No. 3 of 2014)
  • Byanyima Winnie v Ngoma Ngine (Civil Revision No. 9 of 2001)
  • Akampumuza and Another v MUBS (Misc. Application No. 514 of 2012)
  • R vs Horseferry Road Magistrates Ex parte Bennet [1993] UKHL 10; [1994] 1 A.C. 42
  • Major General David Tinyefuza v Attorney General (Constitutional Petition No. 1 of 1996)
  • Twinobusingye Severino v Attorney General (Constitutional Petition No. 47 of 2011)
  • Uganda v Robert Sekabira and 10 Others (Criminal Session No. 0085 of 2010)

Full judgment

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Lukwago v Attorney General & Ors (Misc. Application No. 94 of 2014) [2014] UGHCCD 47 (28 March 2014)
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.