Wakilii

Sebit and Another v Attorney General of the Republic of South Sedan (Application No.2 of 2021)

East African Court of Justice · [2022] EACJ 23 · 2022 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for interim orders arising from Reference No. 14 of 2021
Decision
Application for interim orders dismissed; main Reference No. 14 of 2021 to proceed to hearing

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The East African Court of Justice dismissed an application for interim orders restraining the Attorney General of South Sudan from holding new Bar Association elections and occupying the Association's premises. The Court found that while the application raised serious triable issues concerning alleged violations of the Treaty and domestic law, the applicants failed to prove they would suffer irreparable injury that could not be compensated by damages. The Court held that the applicants' fears about elections rendering the main reference nugatory were insufficiently substantiated, and that the first applicant could participate in any elections as a contestant.

Outcome

Application for interim orders dismissed; main Reference No. 14 of 2021 to proceed to hearing

Facts

The first applicant, Issa Muzamil Sebit, was elected President of the South Sudan Bar Association at elections held on 19-20 February 2020. On 17 February 2021, the Court of Appeal of South Sudan nullified the General Assembly convention and invalidated the elections without hearing the parties. The Court of Appeal mandated a former Executive Committee to manage the Bar Association and hold fresh elections within 60 days. The applicants filed Reference No. 14 of 2021 in the East African Court of Justice alleging violations of the Treaty and domestic law. They then sought interim orders restraining the holding of new elections and occupation of the Bar Association premises pending determination of the main reference. The applicants argued that the Court of Appeal decision violated due process and that execution before exhaustion of appeals violated South Sudan law. The respondent contended that the original elections violated quorum requirements and that the Court of Appeal decision was lawfully executed.

Issues

  1. Whether the Applicants' prayer for interim orders should be granted.

Orders

  • Application for interim orders dismissed in its entirety.
  • Costs of the Application to abide the outcome of the Reference.

Rules and key headnotes

Civil Procedure — Interim Orders — Three-Fold Test for Grant
The grant of interim orders requires satisfaction of a sequential three-fold test: first, the court must be satisfied that there is a serious question to be tried on the merits showing the applicant has a cause of action depicting substance and reality; second, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages; third, if the court doubts, it will decide the application on the balance of convenience.
Civil Procedure — Interim Orders — Serious Triable Issue
A serious triable issue exists where the reference raises a legitimate legal question under the Court's legal regime, specifically where it is contended that the matter complained of violates the national law of a partner state or infringes any provision of the Treaty, without the court delving into the merits of the case at the interlocutory stage.
Civil Procedure — Interim Orders — Irreparable Injury Must Be Proved
An interlocutory injunction will not be granted unless the applicant proves that they would suffer irreparable injury that could not adequately be compensated by an award of damages. Injury, whether reparable or irreparable, is a question of evidence and must be proved; mere assertion is insufficient.
Civil Procedure — Interim Orders — Sequential Nature of Test
The conditions for granting an interlocutory injunction are sequential so that the second condition can only be addressed if the first one is satisfied and, only when the court is in doubt would recourse be made to the third condition of balance of convenience.

Legislation cited (33)

  • Treaty for the Establishment of the East African Community Article 5(3)(a)
  • Treaty for the Establishment of the East African Community Article 5(3)(c)
  • Treaty for the Establishment of the East African Community Article 6(d)
  • Treaty for the Establishment of the East African Community Article 7(1)(a)
  • Treaty for the Establishment of the East African Community Article 7(1)(d)
  • Treaty for the Establishment of the East African Community Article 7(2)
  • Treaty for the Establishment of the East African Community Article 8(1)(c)
  • Treaty for the Establishment of the East African Community Article 8(4)
  • Treaty for the Establishment of the East African Community Article 23
  • Treaty for the Establishment of the East African Community Article 27(1)
  • Treaty for the Establishment of the East African Community Article 30
  • Treaty for the Establishment of the East African Community Article 39
  • East African Court of Justice Rules of Procedure 2019 Rule 4
  • East African Court of Justice Rules of Procedure 2019 Rule 25(1)
  • East African Court of Justice Rules of Procedure 2019 Rule 25(2)
  • East African Court of Justice Rules of Procedure 2019 Rule 25(3)
  • East African Court of Justice Rules of Procedure 2019 Rule 27(1)
  • East African Court of Justice Rules of Procedure 2019 Rule 52(1)
  • East African Court of Justice Rules of Procedure 2019 Rule 52(2)
  • East African Court of Justice Rules of Procedure 2019 Rule 52(3)
  • East African Court of Justice Rules of Procedure 2019 Rule 52(4)
  • East African Court of Justice Rules of Procedure 2019 Rule 53(1)
  • East African Court of Justice Rules of Procedure 2019 Rule 84(1)
  • The Advocates Act 2013 (South Sudan) s.43(2)
  • The Advocates Act 2013 (South Sudan) s.26(2)
  • Civil Procedure Act 2007 (South Sudan) s.295
  • Civil Procedure Act 2007 (South Sudan) s.292(1)
  • South Sudan Bar Association Elections Rules and Regulations 2014 Rule 37
  • Transitional Constitution of South Sudan Article 136
  • African Charter on Human and People's Rights Article 2
  • African Charter on Human and People's Rights Article 3
  • African Charter on Human and People's Rights Article 7
  • African Charter on Human and People's Rights Article 27

Cases cited (8)

  • Francis Ngaruko v Attorney General of the Republic of Burundi (EACJ Application No. 3 of 2019)
  • Adam Kyomuhendo v Attorney General of the Republic of Uganda and 6 Others (EACJ Application No. 11 of 2020)
  • British American Tobacco v Attorney General of the Republic of Uganda (EACJ Application No. 13 of 2017)
  • American Cyanamid Company v Ethicon Limited [1975] AC 396
  • Mary Ariviza and Another v Attorney General of the Republic of Kenya and Another (EACJ Application No. 3 of 2010)
  • Giella & Cassman Brown Co. Ltd v Trufoods [1972] EA 420
  • Castro Pius Shirima v Attorney General of Burundi and 6 Others (EACJ Application No. 11 of 2016)
  • Timothy Alvin Kahoho v Secretary General of the East African Community (EACJ Application No. 5 of 2012)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Sebit and Another v Attorney General of the Republic of South Sedan (Application No.2 of 2021) [2022] EACJ 23 (29 September 2022)
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.