INCAFEX Limited v Rukikaire (Civil Application 8 of 2023) [2023] UGSC 68 (17 November 2023)

Full Case Text

### THE REPUBLIC OF UGANDA,

### IN THE SUPREME COURT OF UGANDA AT KAMPAI. A

(C0RAM: OWINY - D0LL0, CJ, CHIBITA, MUSOKE, MUSOTA & MADRAMA, JJSC)

## CIVIL APPLICATION NO 08 OF 2023

(ARrSrNG FRoM M|SCELI-ANEoUS AppLtCATION NO 4 OF 2021)

(AR|S|NG FRoM CtVtL AppEAL N0. 03 0F 2015)

TNCAFEX LtMITED) APPLICANT

VERSUS

MATHEW RUKI(A|RE] RESPONDENT

15 AND

MISCELI. ANEOUS APPLICATION NO 14 OF 2022

(ARtStNG FRoM CtVtL AppEAL N0. 03 OF 2015)

MATHEW RUK|KA|RE) APPLICANT

#### VERSUS

20 INCAFEX LIMITED} RESPONDENT

# RULING OF CHRISTOPHER MAORAMA IZAMA JSC

The appticant commenced Civit Apptication No 08 ot Z0Z3 by Notice of Motion under sections 33 of the Judicature Act, 98 of the Civil. procedure 2s Act, and Rules 2 (2), L2 and 43 of the Judicature (Supreme Court Rul.es) Directions for orders that the hearing and/rehearing of Civit Appl.ication No 4 of 2021be stayed pending the final. disposal. of constitutionat petition No 6 of 2023. Secondl.y, the appticant prays that the costs of the apptication be in the cause.

30 The grounds of the appl.ication are that:

r:t

The appticant has fited a Constitutionat Petition to chatlenge the constitutionality of the hearing of Civil, Apptication No 4 of 2021 after it had been heard and determined by Hon. Mr Justice Mike Chibita, JSC and a Petition is pending hearing and determination by the ConstitutionaL Court.

102 The hearing of Civil. Apptication No 4 of 2021 betore disposat of the Constitutionat Petition wi[[ render the said Petition nugatory and irreparabty deny the applicant of its right to a fair hearing of the petition.

a J It is in the interest of Justice that the hearing/rehearing of Civit Apptication No 4 of 2021 be stayed.

20 25 30 The apptication is supported by the affidavit of Mr James Musinguzi Garuga who deposed that he made it in his capacity as the managing director of the appticant. He deposed that on 9th February 2021, the first respondent fited Civit Apptication No 4 of 2021 before this court and the said apptication was fixed for hearing on the 1Sth Aprit 2021. 0n the 12th of Aprit 2021, the appl,icant was served with the appLication and on the l5th of May 202'1, the parties' counsel appeared before Hon Mr Justice Mike Chibita, JSC for hearing and the court gave timetines for fil.ing supptementary affidavits, respondent's affidavit in repl.y, appl.icant's affidavit in rejoinder whereupon submissions were accordingty scheduted. 0n 16th Aprit 2021, the first respondent fited a suppLementary affidavit. 0n the 5th of May 2021 the appticant fil.ed an affidavit in repty. 0n the 24rh of May 2021, the first respondent fited the applicant's submissions. 0n the 4th of June 2021, the appl.icant fil,ed the respondent's submissions. 0n l6th June 2021, the first respondent fiLed the appticant's submissions in rejoinder.

Further on 3'd January 2022,|he appticant was served with a ruting notice and on 4th January 2022, the court detivered its ruting wherein it dismissed the apptication and ordered that each party bears its own costs. Thereafter the respondent never chatlenged the ruting of the court del.ivered by Hon Mr Justice Mike Chibita on 4th January 2022. 0n 13th January 2023, the appl.icant was surprised to be served with a hearing notice for Civit AppLication No 4 of 2021, a matter that had already been

- conctuded by Hon Mr Justice Mike Chibita. 0n lSth January 2021, the appticant through their lawyers Messieurs KBW advocates wrote to the Registrar of the Supreme Court addressing the issue and stating that the court is functus officio in the rnatter. The appLicant thereafter requested for new pLeadings on the basis on which the appl,ication was fixed for hearing but he did not receive any response from the registrar of the Supreme Court which prompted the petitioner through their lawyers Messieurs KBW Advocates to write to the Hon the Chief Justice on gth February 2023 requesting him to advise on the matter but again received no reSponse. 10 - Subsequently on 16th March 2023, the appl.icant was served with a hearing notice for Civit Apptication No 14 of 2022 Mathew Rukikaire vs lncafex Limited which was sl.ated for hearing on 22d March 2023. The apptication sought different reliefs f rom that of the conctuded Civit Apptication No 04 of 2021. 15 - 20 Mr James Musinguzi Garuga further deposed that on the 22nd of March 2023 the appticant represented by him and Mr Agaba Maguru, the Company Secretary and counse[ appeared in court for the hearing of Civit Appl,ication No 14 of 2022.

During the hearing of Civit Appl.ication, No 14 of 2022, counsd for the zs appticant (Mr Mathew Rukikaire) Learned SC Mwesigwa Rukutana intimated to court that there were two appl.ications coming for hearing namety Civit Apptication No 14 of Z0Z2 and Civil. AppLication No 04 of 2021 and prayed that both appl.ication shoutd be heard together. The appticants counsel Mr Peter wal.ubiri informed the court that onLy civit Appl.ication 30 No 14 of 2022 scheduLed for hearing onZZ March 2023 and that they onLy received hearing notices for it. Thereafter counsel for the appticant insisted that on their part, they were served with hearing notices for both appLications whereupon the Hon the chief Justice ascertained from the court records and ruled that no evidence of court service of civit 3s Apptication No 04 of 2021 was on the fil.e and directed that the apptication be heard after proper service. On 23.d March 2023 counsel for the appticant received a tetter f rom Messieurs Barenzi & company advocates addressed to the Registrar Supreme Court requesting for CiviL

s Appl.ication No 04 of 2021 to be fixed for hearing. Further on 23'd of March 2023, counset for the appticant was served with a hearing notice for Civil. AppLication No 04 of 2021 indicating that the apptication witt be heard on 28th of March 2023. Neither the appLicant nor the applicant's advocates have ever been served wrth any letter, written request or pLeadings in 10 the Supreme Court afresh, review, appeaI or reference or otherwise to

reconsider Civit Apptication No 04 of 2021.

0n the basis of advice of his Lawyers the appticant deposed that the Supreme Court is functus officioin Civit Apptication No 04 of 2021 which was heard and disposed of by Hon Justice Mr Mike Chibita, JSC. Further 1s he deposed that the appticant has since fil.ed a Constitutional Petition to chattenge the constitutionatity of the hearing of Civil. AppLication No 04 of 2021 atler it had been heard and determined by Hon. Justice Mike Chibita JSC. The petition is pending hearing and determination by the Constitutiona[ Court. Further on the basis of advice of his tawyers 20 Messieurs KBW Advocates, the hearing of the Civil. AppLication No 04 of 202'l before disposaI of the constitutionaI petition wi[[ render the said petition nugatory and irreparabl.y deprive the appettant of its right to a fair hearing of the petition. 0n further advice of his [awyers he deposed that the conctuded Civit Apptication, if heard afresh by the Supreme 2s Court, would be without jurisdiction and the petitioner's right to fair hearing and speedy triaI wou[d be compromised. Further that it is in the interest of Justice that the hearing of CiviL Appl.ication No 04 of 2021 is stayed pending the finat disposat of the ConstitutionaI Petition. He further states that the balance of convenience is in favour of maintaining the 30 status quo untit the disposat of the constitutionaI petition which is pending in the ConstitutionaI Court.

The respondent opposed the appl.ication and deposed to an affidavit dated 3'f't March 2023 and fited on court record on 3'd April 2073. Mr Matthew Rukikaire stated that with the hetp of his tawyers, he read and 3s understood the contents of Miscellaneous Apptication No 08 of 2023 and the affidavit in support and his response is as fotlows:

Hon Mr Justice Mike Chibita in his ruting del.ivered on 4rh of January 2O22, dectined jurisdiction and restrained himself from determining the

application before him on its merits. After declining jurisdiction Justice $5$ Chibita, JSC ordered that the parties to submit to PWC for the audit ordered by the Supreme Court in Civil Appeal No 03 of 2015. Thereafter, Hon Mr Justice Mike Chibita, JSC never dismissed the application and only declined to grant the orders prayed for and made no order as to costs. 10

Further he deposed that after the Justice declined jurisdiction, he decided to focus on compliance with the orders for the parties to return to PWC for the special audit.

In that effort, the deponent stated that upon his express instructions on 6th January 2022, his lawyers; Messieurs Barenzi and company 15 advocates, wrote to Price Water House Coopers about the need to commence the audit process. On 19th January 2022, PWC wrote back inviting the parties for a meeting scheduled for 27th January 2022 to discuss the terms of engagement. On 27th of January 2022, the meeting could not go on as scheduled since there was no quorum as neither the 20 applicant nor its advocates were in attendance. The lawyers availed the contact of counsel Peter Walubiri to the auditors on the understanding that he would be called to schedule another meeting at his convenience. On 1st February 2022, the auditors got back to all the parties informing them that they had contacted Mr Peter Walubiri who explained to them 25 that he had not discussed the matter with his client. He stated that he would be available for a meeting in the week starting 31st January 2022. Auditors went on to schedule the meeting for 2nd February 2022 at 10 AM and share the video link on which to be conducted but the link failed. On

1st February 2022 the respondent through its lawyers KPW Advocates 30 responded to PWC letter claiming that the managing director of the applicant had not given his lawyers specific instructions since he was involved in funeral arrangements for the late Governor of the Bank of Uganda. Secondly, counsel Peter Walubiri, the lawyer handling the matter would not be available for the meeting scheduled for 2nd February 35 2022 as he would be at the Ministry of Education attending to a meeting to finalise and sign a memorandum of understanding on the takeover of Busoga University. They further advised the registrar of the Supreme Court who had been copied in by PWC in the correspondence and invited

5 for the virtual meeting to keep away from the audit and wait for the resuLts to be submitted to court.

Thereafter, the virtual meeting did not proceed as planned and PWC wrote to Messieurs KBW Advocates on l4'h of February 2022 asking them to advise on the avaitabitity of the next ten working days between 1Ih February 20?2 up to 25th February 2022 to enabte it schedute a meeting to discuss the speciat audit ordered by the Supreme Court. PWC further went on to request that the respondent provides three slots for consideration by other parties.

Thereafter the appl.icant's lawyers reptied to the PWC letter on 15th of February 2022 stating that the decision not to attend by the registrar of subsequent meetings cured an obvious irregularity and was wetcome. However, they imptored PWC to atso attend to the reLated irregutarity of "periodic reports to the registrar". Secondty that Peter WaLubiri and the appticant's director had other commitments on the day suggested for the meetings. They suggested the dates to be chosen. These were the 'lSth, l8th, zl't, 22d,23'd,24th,28th,29th or 3lsr March2022 at l0 AM. 15 20

Upon consuttation, it was agreed that a meeting be scheduted for l5rh March 2022 at 10 AM. Consequentty, on 3'd March 2022, a meeting invitation was sent by PWC to al. L the parties with the appl.icant's invitation being sent by emait. The petition was inviting the parties for a meeting to discuss the modalities and arrangements of the audit of the sharehol.ding in the appticant company as ordered by the Supreme Court. 0n l5th March 2O22, lhe meeting started. However onty the respondent's [awyers Mr Benson Tusasirwe, Johnny Patrick Barenzi and Joshua Wakabi attended the meeting with the auditors at the time and date agreed upon by alt the retevant parties.

Further, the deponent stated that at the meeting, MrJohnstone Mwendwa PWC officiat who chaired the meeting contacted Mr Peter Watubiri on his cel[ phone to inquire about his attendance whereupon Mr Peter Wal.ubiri informed him that the matter had stipped his memory and he was [eaving a court session and would join the meeting once he got to his office. They waited for the virtua[ meeting session for about two hours but Mr Peter Watubiri did not join the meeting and subsequentty did not respond to 5 catls and text messages from Mr Johnstone. Further on 2gh MarchZOZ2. PWC wrote to the parties detaiting the numerous attempts by the parties to hotd a meeting and referred the rnatter back to court for guidance on the next course of action.

Thereafter in further repl.y, Mr Matthew Rukikaire on the basis of information of his [awyers stated that Hon Mr Justice Mike chibita JSC did not bring final.ity to the issues in Civil. Appl.ication No 4 of 2021. secondty, the issues in civil. Application No 4 of z0z1 are stitt subsisting in that the speciaI audit which the court had ordered it is yet to be done and the delay was due to frustration by the appl.icant. Further the rul.ing sought to enforce orders in civiL Appeat No 03 of 20]5 where this court retained a supervisory rote for the imptementation of its orders therein and the courts continued hearing of the matter is an exercise of its supervisory rote.

Further, and on the basis of the advice of his Lawyers, he deposed that the constitutional petition No 06 of 2023 is frivo[ous, vexatious and a deLaying tactic emptoyed by the present appticant to stal.l. the determination of civit Apptication No 04 of 2021 and civit Appeat No 03 of 2015. Further that the appl.ication is intended to deLay the contempt of court apptication proceeding against the appl.icant for faiture or refusat to obey the orders of the court in Civit Appeal. No 03 of 2015. 20 25

ln further repty Mr. Mathew Rukikaire on the basis of the advice of his lawyers deposed that the right of the appl.icant to a fair hearing shal.l. not be viotated because the matters raised in the constitutionaI court can atso be handted by this court. Further that the batance of convenience does not favour the appLicant. On the other hand, stay of proceedings sha[[ leave the present respondent in a state of Limbo in the matter of the frustrated audit and the appticant woutd continue to be in contempt of court orders. ln addition, civiL Apptication No 04 of z0z1shail, not render the constitutional. petition nugatory because the petition Lacks merit. The hearing of the apptication wour.d be in line with the exercise of the mandate of the Justices of the Supreme court and the decision of a singl.e Justice of the Supreme Court can be varied or reversed by a paneL of three Justices.

5 ln addition, and on the basis of advice of his [awyers,.the deponent states that the apptication has been todged in the wrong forum and ought to have been todged in the Constitutional Court. Last but not least that it is in the interest of Justice that Civit Appl.ication No 04 of ?021 is heard in order to determine the rights of the parties to the apptication and prevent further detays occasioned by the present applicant on numerous occasions. 10

The parties were given a schedu[e for fiting of written submissions when the matter came for hearing in Miscetlaneous Apptication No 04 of 2021. The appl.icant to this apptication was represented by learned counseL Mr Peter Watubiri and the respondent was represented by learned senior counsel Mr Mwesigwa Rukutana. The court was a(dressed in written submissions and ruting was reserved on notice.

ln the written submissions the appLicant's counseI objected to the affidavit in rejoinder of the deponent which he cLaimed was purportedty deposed to on 3'l't March but fil.ed on 3'd of April 2023 and served on 4th March 2023 and that it is incurabl.y defective. lt was drawn on 3l't March 2023 before the deponent had seen the notice of motion and affidavit in support and was fil,ed and served tate without the leave of court. He submitted that Mr Matthew Rukikaire simpl.y signed on the jurat page on 3l't March 2023 without reading what he was responding to. He submitted that this exptains the big b[ank part after paragraph l4 of the affidavit in

repLy and prayed that we find it to be a fatse and incurably defective affidavit which ought to be struck out. Counsel retied on Twinamasiko Onesmus vs Agaba Aisa & anotherl the Etectorat Petition No 007 ot 2021 where the High Court cast doubt on and relected affidavits where the jurat appeared on separate pages when it coul.d have been accommodated on the previous pages. Counsel .contended that the appticant's affidavit in support woutd therefore be contested and relied on GH Gandesha and another vs GJ Lutaya; Civit Application No 14 of 1989 (Supreme Court). 30 35

0n the merits of the appl.ication, the appticants cqunsel submitted that the grounds l,2 and 3 of the apptication are based,gn the Constitutionat Petition No 06 of 2023 and the grounds can be qpgued together. The

5 essence of the petition is that Civit Apptication No 04 of 23 had been heard and disposed of by Chibita JSC.

The petitioner's counsel submitted that to continue with hearing the apptication wou[d be an il.tegal.ity contrary to articte 126 (l) of the constitution which provides that judiciat power shatt be exercised in conformity with the [aw and this court cannot exercise judicial. power wrthout authority of [aw.

The appticant's counsel submitted that execution jurisdiction is vested in the High Court and contended that Civit AppLication No 04 of 2021 essentiatly seeks retiefs to enforce orders of audit made in the Company Cause No 003 of 2004 as affirmed by the Supreme Court in Civit Appeal. No 03 of 2015. He contended that since this is an issue of execution, jurisdiction is vested in the High Court by virtue of section 29 (l) (a) of the CiviI Procedure Act, since the order to be executed was passed by the Supreme Court which exercises appel.l.ate jurisdiction. That it is a court of first instance to carry out execution proceedings for the order to carry out an audit. Further in accordance with section 34 (l) of the Civit Procedure Act, aLl. questions arising between the parties to the suit in which the decree was passed rel.ating to the execution, discharge or satisfaction of the decree shatt be determined by the court executing the decree and not by separate suit. He retied on Sinba (le Ltd and 4 others vs Uganda Broadcasting Corporation; Supreme Court Civil Appeat No 03 of 2024 and the case of Francis Micah vs Noah Watakira R995 - lggg] 2 EA't91.

The appel. Lant's counseI submitted that the Supreme Court onty exercises appetl.ate jurisdiction which is a creature of statute in terms of articte 132 of the constitution. Further other jurisdictions such as preserved by ruLe 2 (2) ot the RuLes of this court are ancittary to the appeLl.ate jurisdiction and intended to preserve and protect the right of appeat.

The appticant's counsel submitted that Apptication No 04 was heard and determined by Chibita JSC who accepted jurisdiction, heard Miscettaneous Apptication No 04 of 2021 and refused to grant the orders sought and even disposed of the issue of costs in the apptication. He did not make a reference or adjourn the apptication for disposat by a panel.

under rule 50 (1), or for a review, reference and there is no apptication for an order f ited under rute 2 (2) 52 (1) of the Judicature (Supreme Court Rutes) Directions by the appl.icants. He contended that the matter came back to the court from nowhere and there is no [ega[ basis as required by articte 126 (l) of the Constitution for the exercise of jurisdiction by Court. 5

Further that if the apptication is fixed and heard without jurisdiction, it woutd compromise the appticant's non-derogab[e right to a fair hearing contrary to article 28 (l) and 44 (c) ot the Constitution.

The appticant's counsel submitted that there was a need to preserve the supremacy and sanctity of the Constitution and that there is merit in ConstitutionaI Petition No 04 of 2O23 and it is necessary for this court to act with restraint and to stay proceedings to enabte artictes 28 (1),44 (1) and 126 (1) and 132 of the Constitution to be interpreted in tight of the attempt to hear Appl.ication No 04 of 2023 afresh. 15

The appticant's counse[ submitted that articte 2 of the Constitution provides that the Constitution is the supreme law of Uganda and has binding force on everyone and authority. That any atlegation under article 13? (3) (a) of the Constitution such as the atlegation by the appLicants in Constitutionat Petition No 04 of 2023, that any act or omission by any person or authority is inconsistent with the Constitution, atlows a petition to be fited. Further he submitted that because of the supremacy of the Constitution, the hearing of constitutionaI petitions take priority under articte'137 (7) of the Constltution. 20 25

Further, the appticant's counsel submitted that there is a prima facie petition chattenging the act of fixing Civit Apptication No 04 of 2023. He contended that the princip[e of the supremacy of the Constitution requires there to be a stay of proceedings in Civit Apptication No 04 of 2023 to aLtow the ConstitutionaI Court to inquire into attegations that articte 28 (1), AA (c), 126 (l) and ]32 of the Constitution witL be contravened by the act of hearing that appLication. That if this court proceeds to hear Civit Apptication No 04 of 2021, before the constitutionaI petition is heard and determined, then the petition which seeks to preserve the supremacy of the Constitution witl. be rendered nugatory. 30 35 The apptrcant's counset retied on Onyango Obbo & another vs Attorney Genera[ Civit Appeat No 02 of 2022 where Mut.enga JSC deal.t with the decision of the constitutiona[ court staying the hearing of a constitutionaL petition in preference to a criminaI triat of disputed penaL provisions taking place. With reference to articLe 137 (?) of the Constitution he hetd that:

'The rationate for these provisions is obvious. The constitution is the basic taw from which a[[ laws and actions derive vaLidity. where the constitutional vatidity of any law or action awaits determination by the constitutional court, it is important to expedite the determination in order to avoid apptying a taw or taking action whose vatidity is questionabte.

The appl.icant's counset prayed that this court is guided by the principte enunciated above to stay proceedings in Civit Apptication No 04 of 2021 since the constitutionat vatidity of the hearing that appLication is being chattenged in the ConstitutionaI Court.

ln repty, the respondent's counsel submitted that the apptication before the court lacks any LegaI foundation. He contended that section 33 of the Judicature Act, onty vests jurisdiction in the High Court and not the Supreme Court. Simitarty, section 98 of the Civil. procedure Act does not appty to the Supreme Court by virtue of section I which Limits the CpA to the proceedings in the High Court and Magistrates Courts. Further rul.e 2 (2) of the Judicature (Supreme Court Rul.es) Directions does not atso appty to an apptication of the nature before the court. He submitted that the rute appl.icabte for stay of proceedings is rute 6 and the expl.anatory notes thereof are that the institution of an appeal. shal.t not operate to suspend any sentence or to stay execution but the court may in any civil. proceedings where a notice of appeal. has been todged in accordance with rule 72 of the rutes of the court, order a stay of execution, an injunction or stay of proceedings as the court may consider just. 20 25 30

The respondent's counse[ contends that the essential. etement underpinning the rute is that the appticant atso fiLed a notice of appeal. and that rute 2 (2) of the Rutes of this court cannot override the obLigation of appticant to appty with the procedural. imperatives of the rutes as they seek Justice of this court. 35

5 Further, the respondent's counseL submitted that the institution of a constitutional petition at the lower court cannot be a foundation for the grant of a stay of proceedings under the Rules. He contended that it borders on abuse of process and undermines the superiority of this court. The respondent's counseI relied on Utex lndustries Ltd Vs Attorney General; SCCA No 52ot1997 for the hotding that proceduraI rutes serve the ends of Justice to be apptied with due regard to the circumstances of each case. Further in Mutindwa George Wittiam vs Kisubika Joseph; SCCA No 14 of 2O14, it was hetd that justice must be administered in accordance with the Law. He contended that the present apptication is incompetent and ought to be dismissed with costs. 10 15

0n the question of whether the respondent's affidavit in rejoinder is incurab[y defective, the respondent's counsel submitted that apart from the jurat attegedty being on a separate page, there is no issue raised regarding the authority of the Commissioner of oaths before whom the affidavit was deponed and which is atteged to have fal.l.en foul. of the Law. The substance of the matters set out in the affidavit in repl'y arise directty from the appl.ication of the Commissioner for Oaths Act, cap 5 and it does not provide for striking out of an affidavit for a jurat being on a separate page

The respondent's counsel submitted that the facts in the Judgment of Twinamatsiko 0nesmus vs Agaba Aisa & Anothe[ High Court Etection Petition No 007 of 2021 are dlstinguishabte from the facts of this case. Here the attestation clause, captures the deponent, and the Commissioner for oath and law firms in one page and the respondent comptied with this. Further, the respondent's counset submitted that Commissioner for Oaths Act, cap 5 which is the controlting statute does not penalise an affidavit with a jurat on a separate page nor do the rutes made thereunder. Further whenever any form is not prescrlbed by any written [aw, an instrument or document which purports to be in such form, cannot be void by reason of any definition therefore which does not affect the substance of such instrument or document. He contended that the subsidiary tegistation is to read in conformity with the enabting tegistation and cannot purport to prescribe or impose obtigations on any 25 30 35

s party different from those or more onerous than those contemptated in the parent Act.

ln the premises, the respondent's counseI submitted that the affidavit was properly taken by a quaLified person at the ptace and date indicated and can be used in evidence. There was no failure on the part of the ro respondent to compty with any statutory requirement. Counsel retied on Kanabotic Group of Companies (U) Ltd vs Sugar Corporation of (U) Ltd; SCCA No 040 of 1995 where the Supreme Court on simiLar points comptained of, stated that there were minor technicatities which shoutd not be attowed by the court as a bar from proceeding to hear the merits ls of the case.

The respondent's counsel submitted that we wind that it is in the interest of Justice that the affidavit in repty be saved and rendered receivabte in the proceedings for purposes of deating with the substance and that there is sufficient materiat for determination of the dispute.

The respondent's counsel atso submitted on the propriety of ConstitutionaL Petition No 04 of 2021 & No 6 ot 2023. He contended that the respondent is not a party to the said constitutionaI Petition No 04 of 202'l and it is inappl.icab[e to the apptication. 20

Further, counset for the respondent contended that the matters raised in ConstitutionaL Petition 06 of 2023 are misconceived, frivotous and vexatious and raise no issues or questions as to interpretation of the Constitution. He stated that the petition is merely an abuse of court process intended to frustrate the orders of this court issued in the main appeat. Further that as a frivotous and vexatious petition, it cannot be rendered nugatory. He contended that the petition f ited in the lower court to stay proceedings in this court is defective and incompetent and the court below ought to dismiss it on that ground. Further the issues raised in the petition can stit[ be competentty addressed by the Supreme Court in the substantive hearing of Miscellaneous Appl.ication No 04 of 2021 and such a determination cannot occasion any prejudice to the parties. 25 30 35

ln the rel.ation to the jurisdiction of the Supreme Court, the respondents counsel submitted that rute 35 of the Judicature (Supreme Court Rul,es)

s Directions empowers this Court on its own motion or on an appLication of any interested person to correct any order it issued if it does not correspond with the orders it purports to embody. This discretion appLies where the Court is satisfied beyond doubt that the order one it wou[d have made if the matter had been brought to the attention of the court 10 (see Uganda Devetopment Bank Vs Oit Seeds (U) Ltd; Supreme Court Civit Apptication No 15 of 1997 and Orient Bank Ltd vs Frederick Zaabwe and

Mars Trading Ltd; Civit Apptication No 17 of 2007.)

The respondent wondered how the discharge of a judicial. function of the Supreme Court exercisable under the Judicature (Supreme Court Rutes) ls Directions can be ittegat. He submitted that article 126 (1) of the Constitution was quoted out of context by the appl.icant's counse[. Further that if it is understood that this court enjoys very wide discretion to make such orders sought in Miscettaneous Application No 04 of 2021, lt is imperative that it makes such orders as are necessary to achieve the zo ends of Justice and to prevent abuse of the process by the appl.icant (See Theodore Sekikubo and Others vs Attorney General and Others: SCCA No. 04 of 2014 and Alcon lnternationat Ltd vs New Vision Printing and Pubtishing Co. Ltd and the Editor in Chief New Vision and Sunday Vision; SCCA No 04 of 2010.)

- The respondent's counset further submitted on the question of whether Misce[taneous AppLication No 04 of 2021 was heard and determined finaLty. He contended that the apptication was never determined on its merits and that Chibita JSC white giving his quatified acceptance of jurisdiction resolved that once he had jurisdiction to hear the party's apptication, he did not have the jurisdiction to issue orders sought as the matter coutd onty be disposed of bya futl. pane[ and his Lordship issued orders that were subject to the main appeal.. Because the matter in the present appeat has not been finatty determined, it is just for this court to reopen it and rehear the matter. 25 30 - Further, counsel submitted that it is in the interest of Justice for a panel of the court to proceed to Miscettaneous AppLication No 04 of 2021 and consider and determine it on the merits. The respondent's counsel retied on McCarthy vs Agard n933] 2 KB 417 for the hol.ding that this court has 35

5 its intention the inherent jurisdiction to issue such orders as are necessary to futfiI

0n the question of whether execution jurisdiction is vested in the High Court onl.y, the respondent's counseI submitted that the appl.icant rel.ied on section 34 of the CiviI Procedure Act but what is in the appl.ication ro before court is that the respondent did not appty for execution in Misceltaneous Appl.ication No 04 of 2021. The respondent sought inter alia an order that the applicant be found in contempt of the orders of the court for instance on the question of the audit. He submitted that there cannot be execution proceedings without an audit of what is to be imptemented 1s through execution. Further, the respondent's refusaI to participate in the audit was contrary to the Constitution where this court reiterated the necessity for a successfut party in any Litigation to enjoy the fruits of his Judgment. He contended that to suggest that there is no prejudice occasioned by the endLess proceedings when the respondent has an 20 executabte judgment because of the appLicant's refusaI to participate in the audit is a statement made without conviction.

0n a need to preserve supremacy and sanctity of the Constitution, the respondent's counsel contended that the applicant's submissions are tifetess, riddl.ed with specutation and are purety academic. Further that they are deficient on the actuaI narration and appl.ication of arguments. He submitted that there is no need to preserve the supremacy and sanctity of the Constitution in a matter of ConstitutionaI Petition No 04 of 2023 because that petition is devoid of merit. Further, the prayers sought in that petition are to issue an injunction against the Supreme Court from hearing a matter.

Further counset submitted that this court woutd unprecedentedLy abdicate its judicial. function or shirk its obtigation if it al. Lows the lower court a btanket immunity to inquire into its mandate and give it directions to the Supreme Court. He prayed that this court's discretion is exercised judiciatty with the utmost equanimity especiatLy that the Court is faced with an appl.ication that seeks to undermine the sanctity of the Supreme Court.

5 ln addition, the respondent's counsel submitted that it is trite law that at an intertocutory stage, the appticant party shoul.d demonstrate the right to the relief it seeks ctearly. Having scanned through the petition and the materiats pl.aced before the court by the applicant, the respondent submitted that the applrcant has not demonstrated that it has any valuabte prima facie case with a tikel.ihood of success and that in the absence of such a conservation order, it is tikety to suffer prejudice. This is because the appticant faited to prove a ctear breach of the Constitution or [egislation viotated by this Court in determining Miscetlaneous AppLication No 04 of 202'l and the orders sought in the petition are too gl.obaL. He submitted that it sufficed to state that the appl.icant wiLt not suffer any prejudice as it enjoys a right to be heard in opposition of the appl.ication which is consistent with artictes 28 (1) Ah (c), 126 (1) and 137 (7) of the Constitution as interpreted in Constitutional Petition 06 of 1999 Hon Zachary Otum & Hon Rainer Kafiire vs the Attorney Generat. 10 15

The respondent's counse[ atso submitted that the principtes set out for the grant of an injunction or stay are in American Cyanamid Co vs Ethicon Ltd [975] AC 396, are relevant and the question for the court to consider is whether there is a serious question to be tried. Secondl.y what the batance of convenience of each party is and whether there are any speciaI factors. 20 25

CounseI submitted that the appticant fail.ed to prove any of the above grounds so as to entitl.e it to the introductory retief as set out by Lord DipLock in American Gynamide Co (1) vs Ethicon Ltd n975) AC 395 and prayed that the appl.ication be dismissed with costs to the respondent.

I have further considered the submissions in rejoinder of the appticant's counset that had been fil.ed on court record on l7rh April 2023 and I do not need to specificatty reproduce them though I have taken them into account. 30

## Consideration of the apptication.

I have carefutty considered the appticant's appl.ication, the affidavit in support, the affidavit in repty as we[[ as the submissions and the court record. 35

5 The appl.icant's counsel objected to the affidavit in repLy of Mr Matthew Rukikaire on the ground that the affidavit in rejoinder is incurabty defective. The affidavit was deposed to on 4'h Aprit 2023. lt was fited on court record on 5'h of Aprit 2023. There is another affidavit in repty to the Notice of Motion fited on court record on 3'd Aprit 23 dated 31't of March 2023. The affidavit is dated by the Commissioner for Oaths and not the deponent. I have carefuU.y considered the appticant's appl.ication and the submissions of counse[ and there is nothing in the affidavit which is necessary for the disposaI of the apptication for stay of proceedings as I wi[[ demonstrate in this ruting and I do not need to rute on the issue. l0

I need to point out that the appticant's apptication is an apptication for orders that the hearing and or rehearing of Civit Apptication No 04 of 2021 be stayed pending the disposat of ConstitutionaI Petition No 06 of 2023 and for costs of the apptication to be in the cause. 15

I further need to set out the basis of the apptication which are that the appl.icant filed a constitutional petition to chattenge the constitutionatity of the hearing or rehearing of Civil. Apptication No 04 of 2021 after it had been determined by Chibita JSC and that the petition is pending hearing and determination by the ConstitutionaI Court. Second[y that the hearing of the Civil. AppLication No 04 of 2021 before disposal of the constitutionat petition witt render the petition nugatory and irreparabty deprive the appticant of its right to a fair hearing of the petition. Finatty, that it is in the interest of justice that the hearing of Civil. Apptication No 04 of 2021 be stayed. 20 25

Whil.e the apptication seems to be a straightforward one, in that a constitutional petition had been fited in the Constitutionat Petition No 06 of 2023, the issue is not as straightforward when considered in tight of the background to the petition. For purposes of context, the appeaL undertying in this apptication had been determined by the Supreme Court in Civit Appeal. No 03 of 2015. Thereafter. the respondent fited Civit Apptication No 04 of 2021 which was ptaced before a singte Justice and heard by Chibita JSC. 30 35

The matter was commenced as a company cause in High Court Commercial Court Division Companies Cause No 03 of 2004 where the 5 petitioner who is now the respondent to this application prayed for windrng up of the appticant company under section 211 of the Companies Act cap 110 (repeated). ln the triaI resulted in an order that the petition is attowed with costs and in addition other orders as to the terms of reference of a specialaudit were issued by the court. These orders were:

1. That a special audit shatl. be carried out by any of the foltowing reputabte audit firms, PricewaterhouseCoopers, Ernest and Young, Del.oitte and Touche, KPMG or PKF Uganda to be jointty appointed by the petitioner and the respondent within 30 days of the judgment.

2. That the petitioner and the respondent company shatl share the cost of the audit in the proportions of 1f3'd for the petitioner and 2f3'd for the respondent company.

3. That the pretiminary findings of the speciat audit shatt be made avaitabte to the parties within 45 days of the appointment for comments which comments shat[ be made within another 14 days of receipt by them of the pretiminary report.

- 4. The final. report sha[[ be made to court and the parties within 14 days. - 5. The finat report shatt be binding upon the parties, - 6. The speciaI report sha[[ address the foLl.owing issues; - a. Based on the tetter of M/S Agaba & Co Advocates to Mr. James Musinguzi 15th December 2003 whether the 40% foreign sharehotders represented by the petitioner of Messieurs lncafex Ltd withdrew and were compensated for their shares. Precise detaits as to the minutes, dates and payment amounts are to be provided by the parties. - b. lf the said foreign shareholders were not compensated for their shares, what wil.[ be fair vatue for their compensation? This is to pave way for the purchase of the said shares by other members of the company or by the company. - c. Estabtish whether the respondent has been preparing and maintaining annual audited accounts and if not, to make appropriate recommendations to court.

- s d. To estabtish whether the respondent company has been hotding regular meetings of the company and if not to make appropriate recommendations to court. - e. To make such other recdmmendations to court to ensure good corporate governance within the respondent company.

10 The applicant company was aggrieved and appeated to the Court of AppeaL which overturned the judgment of the High Court and the respondent fited a further appeat in the Supreme Court vide Civil Appeat No. 03 of 2015. The Supreme Court attowed the appeat and reinstated the orders of the High Court with some modifications. Subsequentty the 1s appLicant apptied in Civit Appl.ication No 3? of 2017 tor correction of the orders issued by the Supreme Court in Civit AppeaL No 03 of 2015 and the finaI orders issued by the Supreme Court corrected paragraphs (a) and (b) of the orders. The initiat orders of the Supreme Court were as fottows:

I woutd altow grounds 1,2, l+ and 5 of this appeal and make the fottowrng 20 orders:

- (i) The appeltant is a member and sharehotder of the respondent company, - (ii) The appettant was oppressed by other D irectors/sharehotders of the respondent company; - (iii) That an audit of the books of the company be done as ordered by Kiryabwire, J (as he then was) and thereafter the parties report back to the High Court for consequentiaI orders;

(iv) The appettant is awarded costs in this court and in the court below.

Subsequent proceedings in the Supreme Court retated to order (iii) which in essence reinstated the judgment of the High Court on the aspect of the audit of the books of the company making a further order that the parties report back to the High Court for consequentiaI orders (after the audit). It can therefore be observed that the matter before this court retates specifical. Ly to the process of audit ordered by the High Court and not to other orders. lt is in that context that the orders of the Supreme Court in the Civil. Appeat No 03 of 2015 were corrected on the aspect of the appointment of auditors in paragraphs (a) and (b) of the orders of the High Court so that the orders of the High Court which had been reinstated in the said paragraph would read as foltows: 30 ?q

5 The orders of the Court in Civit Appeat No 03 of 2015 therefore amended as fottows:

a. The auditor be agreed upon by atl the parties to the petition.

b. The auditor be given specific terms of reference inctuding;

- (i) The duty to receive evtdence on whether the petitioner paid for his shares. - (ii) The auditor should not consider evidence already availed in court and addressed in the Judgment. - (iii) The auditors draft report be avaited to the parties for their comments.

c. The final orders be made by Court after the process in (a) and (b) conctuded.

ln my analysis of the orders, the word'Court' in item (c) above cannot be taken to be the Supreme Court because the Supreme Court reinstated the orders of the High Court which provides that the reports are to be fited in the High Court. Secondty the Supreme Court made specif ic orders that the matter be referred to the High Court for consequential orders. Further the High Court had made a reference to auditors and the matter remained pending before the High Court pending conctusion of the audit. The retevant taw appticabl.e is section 27 of the Judicature Act cap'13 Laws of Uganda which provides that the High Court may refer an issue for triaI by a referee or arbitrator or referees or arbitrators. The relevant provision is section 27 (c) of the Judicature Act Cap 13 which provides

2?. Triat by referee or arbitrator.

Where in any cause or matter, other than a criminal proceeding -

(a) att the parties interested who are not under disabitity consent;

(b)....

that:

the High Court may, at any time, order the whote cause or matter or any question of fact arising in it to be tried before a special referee or arbitrator agreed to by the parties or before an officia[ referee or an officer of the High Court.

References to referees or arbitrators are ordinarity made to experts who are expected to examine or try the issue as experts in the retevant area. Generatl.y, a reference may either be made for opinion which the court

5 may adopt whol.l.y or in part as part of judgment of the court or a reference may be made for triat by referees and the outcome of the triat is a binding award which may onty be set aside onty on grounds for setting aside arbitraI awards. ln either case scenario, the suit remains pending until. the issue is referred back to court for final. orders or conc[usion of the suit after receiving the opinion of the experts or the award where there was a triat by referees. 10

Section 27 of the Judicature Act is enforced under 0rder 47 of the Civit Procedure Rul.es which provides the procedure for references to arbitrators by consent of the parties. References may be made where there is no arbitration ctause and it is desirabLe that the matter be referred to arbitrators. The matter was referred by the High Court for trial. by auditors under section 27 (c) of the Judicature Act. Where it is so referred, the court is precLuded from trying the question referred afresh.

Order 47 rute 3 (2) of the Civit Procedure Rutes provides that the court:

'shatl not, except in the manner and to the extent provided in this 0rder, deal with the matter in the suit.'

Order 47 rutes l5 of the CPR gives the grounds for setting aside an award of a referee or arbitrator who has tried an issue. The grounds for application to court to set aside an award of the referees include misconduct or corruption, fraudutent concealment of any matter by one of the parties or the award being made after proceeding with the suit by the court. Had the matter proceeded under the Arbitration and Concitiation Act, section 32 thereof provides for termination of the arbitraI proceedings either by a fina[ award or by an order of the arbitrat tribu na [.

Where the matter is referred by the triaL court for opinion, the court proceeds under section 26 of the Judicature Act which provides that:

26. References to referees.

(1) The High Court may, in accordance with rutes of court, refer to an officiat or specia[ referee for inquiry and report any question arising in any cause or matter, other than in a criminat proceeding.

5 (2) The report of an official or speciat referee may be adopted whotty or partty by the High Court and if so adopted may be enforced as a judgment or order of the High Court.

Where the issue or question arising in any cause or matter is referred for inquiry and report, the triat court has discretionary powers whether to adopt the report whotty or partLy as a judgment or order of the High Court. ln this case the learned triat judge of the High Court in his order number 5 ctearty stated that the finding of the auditors shalt be binding. This demonstrates that the triat court proceeded under section 27 of the Judicature Act and he had made a reference for trial of a question or questions by referees who happened to be auditors. The suit remained pending the outcome of the audit with final. orders yet to be issued where necessary.

With the above background in mind, the respondent to this appl.ication fi[ed the Civit AppLication No 04 of 2021 seeking various orders in the matter of the audit exercise. As far as is relevant, Chibita JSC ruted that:

This is a matter that was handled by this court sitting as a futt panel. The decision of the court was made and communicated to the parties. lam convinced that their Lordships sitting as a fu[[ pane[ atready considered atl the issues now at p[ay. From the submissions by counset, it is clear that the parties did not submit to the speciat audit as envisaged by their Lordships.

I am alive to the provisions of section 8 of the Judicature Act

Section 8 of the Judicature Act provides as fotlows

(1) A singte.justice of the Supreme Court may exercise any power vested in the Supreme Court in any intertocutory cause or matter before the Supreme Court.

Iam therefore in no doubt as to the tegatity of a singte justice entertaining and determining the instant apptication.

It is not onty prudent but atso premature, in this case, for a singte judge, of the same court, to sit and make further, additional or different orders, before the orders of the futl panel have been properly and exhaustivety imptemented. lt is improper and borders on abuse of process.

5 0therwise there witt never be an end to titigation. The Supreme Court woutd never stop hearing appeats drsguised as apptications for review, revision, clarification and a myriad of other prayers.

> As Newbotd P hetd in Lakhamashi Brothers Ltd Vs Raja & Sons (1966) EA 313, 3t4:

'there is a simpte principte which is of very great importance in the administration of justice and that principte is this:

'it is in the interest of atl interested persons that there should be an end to titigation.'

The principle was cited rn the case of Obote Witliam vs Uganda; SCCA No I of 2017 and Mutindwa vs Kisubika SCCA No 12 ot 2014.

I decline to grant the orders prayed for. The parties are advised to return to PWC for the special audit as ordered in the Supreme Court Civit Appeat No 03 of 2015, now that the areas of disagreement have been ctarified by the parties as per their submissions in this apptication. There is no order as to costs.

Coming to the apptication before Court. the saga started when on the 2nd of March 2023. Civit Apptication No 14 of 2022 arising from Civit Appeat No 03 of 2015; Mathew Rukikaire vs lncafex Ltd came for hearing. Learned Senior Counsel Mwesigwa Rukutana assisted by Learned counsel Edgar Tusasirwe, learned counset Benson Tusasirwe and learned counseI Johnny Barenzi, represented Mr. Mathew Rukikaire, the appticant therein whiLe learned counse[ Peter WaLubiri appearing with learned counsel Emmanue[ Kiirya represented lncafex Ltd, the respondent therein. Mr Wal.ubiri informed the court that there were two apptications pending court namety Civit Apptication No 04 of 2021 and Civit Apptication No 15 ot 2022. The court gave the parties a scheduLe for the fiting of written submissions in CiviL Apptication No14 of 2022. 20 30

Further Mr PeterWaLubiri stated that they were not served with the Civit AppLication No 04 of 2021 and this matter was adjourned to 28th March 2023 lo enabte service on the respondents. 0n 28th March 2023, Learned counsel Mr WaLubiri intimated to court that he had written to the Registrar of the Supreme Court stating that the Civit Apptication No 04 of 2021; Mathew Rukikaire vs lncafex Ltd had been heard and determined and any attempt to reopen it woutd be unconstitutiona t. He further informed the court that they had fiLed in the ConstitutionaL Court,

5 ConstitutionaL Petition No 06 ot 2023 for interpretation of the Constitution. Subsequentty they also fited an apptication for stay of proceedings of CiviI Apptication No 04 of 2021 pending the hearing and determination of the constitutionaI petition. Further, they objected to the court hearing CiviL AppLication No 04 of 2021 and prayed that the court first hears Civit Apptication No. 08 of 2023 for stay of proceedings. Lastty they conceded to an interim stay order restraining the respondent from a[ienating any company property, a remedy sought in Civit Apptication No 14 of 2022 pending the hearing and determination of Civit Apptication No 08 ol 2023 whlch is the appLication for stay of proceedings pending the hearing of the recentty commenced constitutional" petition. The court directed counsel for both parties to fite written submissions in Civil Apptication No 08 of 2023 and ruting was reserved on notice.

I note that the singte justice of this Court considered the issue of audit as pivotaL to everything though'faiture to conduct the audit was part of the issues to be deaLt with and the apptication sought in its entirety a wide range of orders as stated hereunder:

a. An order that the Respondent is in contempt of the orders of this court issued by the Supreme Court in Civit Appeat No 03 of 2015.

b. A decLaration that the fiting by the respondent of High Court Civit Suit No 887 of 20'18 was an abuse of court process.

- c. A dectaration that the commercial Division of the High Court, in which Civit Suit No 887 of 2018 was fited, tacks jurisdiction to overturn, vary or interpret a decision rendered in Supreme Court Civit Appeat No 03 of 2015 attached as annexure F to the Respondent's plaint. - d. An order that the affairs of the Respondent Company be immediatety wound up. - e. An order appointing a tiquidator in respect of the affairs of the company, with directives to the tiquidator to immediateLy take charge of and distribute the assets and properties of the company, so that the appticant is at[ocated his 45% share thereof. - f. An order that the appticant be paid 45% ot the sum due and owing to the respondent from the government of Uganda arising from

5 past deal,ings between the respondent and the government of Uganda.

g. Costs of this appLication to be provided for.

Cl.earLy, when the singte justice of the Supreme Court decLined to grant the orders prayed for, he determined the apptication by decl.ining to assue the orders sought but did not specificatty address each of the orders sought on the merits. Chibita JSC advised the parties to return to PWC for the special. audit as ordered in the appeat and issued no order as to costs. I note that the orders sought in (d), (e) and (f) above coutd be sought as consequentiat orders to the audit exercise after the audit report is fited in the triat court and as ordered by the Supreme Court.

Having dectined to deaI with the merits of the appl,ication, it cannot be said that the appLication remains pending and has not determined. lt is the appl.icant to Civit Apptication No. L of 2021who caused that apptication to be fixed before the ful.ty constituted pane[ of the Supreme Court. The Appticant may be fautted for fixing the apptication for hearing. The Registrar who fixed it for hearing did not necessarily have to first read the ruting of Chibita, JSC to determine whether the matter was stitl pending and she obviousty teft it to the court to deaI with the issue. The appticant coutd have made a reference to the fuLl. pane[ to determine the apptication on the merits. lnstead, the respondent to this apptication Civil. Appl.ication No. 08 of 2023, and as ctearly reftected in his affidavit in opposition to this appl.ication tried to compty with the orders of Chibita, JSC to return to PWC for the previousLy frubtrated special audit exercise as ordered by the Court but again he hit a bottteneck and contended that the appticant to this apptication; Messrs lncafex Ltd, frustrated the process. ln this appl.ication, I do not need to go into the merits of the facts teading to the parties hitting an impasse and the audit ordered by court being frustrated.

Civit Apptication No 04 of 2O21 having been determined, it was sufficient for the respondent's counset to object to CiviL Appl.ication No. 04 of 2021 being heard on the merits on the ground that Chibita JSC had finatty determined it. That essentiatty is an assertion that this court has no further jurisdiction to determine the matters raised in that appl.ication.

5 The apptication had been fixed for hearing before the court and the court had not yet considered any matter such as whether the apptication was competent or whether it had jurisdiction to reopen the matter. SecondLy, instead of seeking to present his arguments for the apptication not to be heard as a preliminary point of [aw, Mr Peter Walubiri on behaLf of his client decided to fiLe a constitutionat petition in the ConstitutionaI Court. He cLearl.y wanted to avoid this court tooking into the matter and determining whether it has jurisdiction to determine the remainder of the apptication. There are serious ramifications to this approach as I shall demonstrate hereunder.

1s There are two matters that need to be hightighted. The first one is that the Supreme Court had determined the appeaI final.ty and Civil. AppLication No 04 of 2021 was an apptication inter atia for orders to find the officiaLs of lncafex Ltd in contempt of court orders. Chibita JSC dectined to issue the orders. At this stage this court cannot say that he 20 reserved some of the orders for consideration at a later stage. Further, I wish to hightight the fact that fixing a matter for hearing before a singte justice does not mean that the appticant intended it to be heard by a singLe justice of the court. A singte justice of the Court onty has powers to hear interlocutory causes or matters before the Supreme Court. 2s Section 8 of the Judicature Act provides that:

8. Powers of a singte justice of the Supreme Court.

(1) A singte justice of the Supreme Court may exercise any power vested in the Supreme Court in any interlocutory cause or matter before the Supreme Court.

It is quite ctear that there was no appeaI pending before the Supreme Court by the time Civit Apptication No 04 ot 2021 was a f iled. ln fact, Civil. Appeat No 03 of 2015 had been determined by this court. What was Left was the execution of orders of the Supreme Court. I particuLarl.y want to hightight the fact that the order of the Supreme Court envisaged further consequentiaI orders of the High Court after the audit of the lncafex Ltd that had been ordered. Because the High Court had residuat powers to issue consequential orders after receipt of the audit award, the matter remains pending in the High Court and not the Supreme Court. For this 30 35

s feason, it was sufficient for the single justice of the Supreme Court to decline to hear Civit Apptication No 04 ot 2021 as he did. ln other words, the appticant to Civit Apptication No 08 of 2023 shoutd have waited for the court to determine whether it has jurisdiction to sit and consider the grievances of the appticant in CivitApptication No. 04 of 2021. Apptication 10 of the petitioner in the ConstitutionaI Court has the effect of stopping this court from considering the matter on the merits of the objection to the jurisdiction of this court in Civit Apptication No 0t+ ot 2021.

The above notwithstanding. the second matter concerns the power to make a reference of any question as to interpretation of the Constitution 1s arising in proceedings before the Supreme Court in Civit Appl.ication No. 4 of 2021 as provided for under articte 137 (5) of the Constitution. Yet the appl.icant has fil.ed an originat constitutional. petition under articl.e 137 (3) of the Constitution where a reference by this Court is not envisaged.

Firstty, the question of whether the matter was pending for consideration zo or whether this court stil.t has jurisdiction in the matter has not been determined and was stil.t to be determined in the appl.ication. What was required was for the appiicant's lawyer to object to the hearing of the apptication on the ground that the apptication had been final. Ly determined and coutd not be reopened by fixing it for hearing again. The 2s point being that if there are no proceedings property before the Supreme

Court, there cannot even be a reference under articte 137 (5) of the Constitution because the envisaged proceedings woutd have been determined by the Supreme Court uphotding the pretiminary objection on the ground of want of jurisdiction of the Supreme Court. Further, where

30 in the course of considering whether the matter was property before the court and any question as to interpretation of the Constitution is raised, the Supreme Court can evaluate whether there is any issue or question or dispute as to interpretation of the Constitution that requires a reference to be made to the Constitutional Court as the original court to 35 interpret the Constitution. ln any case, Mr Peter Watubiri, counse[ for the appl.icant had the right to raise any question as to interpretation of the Constitution for consideration by the Supreme Court for purposes of such a reference.

5 the hearing, the petitioner's counseI Mr Peter Walubiri informed the court that onl.y Civil Apptication No 14 of 2022 was cause Listed for hearing. Subsequently they were served with a hearing notice from Civil Apptication No 04 of 2021. That the act of the Supreme Court of fixing a fresh hearing was inconsistent with and in contravention of artictes 28 (1), aa (c) and articte 132 of the Constitution of the RepubLic of Uganda. 10

I need not make any comments as to the merits of the petition except to point out that under articl.e 137 (5) of the Constitution, the Supreme Court can make a reference to the ConstitutionaI Court if it is of the opinion that a question as to interpretation of a provision of the Constitution has a substantiaI question of [aw. lt seems a matter fixed for hearing per se does not forestall any pretiminary objection as to the jurisdiction of the court to hear the matter or any preliminary objection as to the competence of the appl.ication. Further rushing to the ConstitutionaL Court was contemptuous of the court and suggests that the Supreme Court cannot on its own determine any pretiminary objection as to its competence, jurisdiction or to determine whether it shoutd make any reference to the Constitutional Court if the petitioner's counseI so raised any question as to interpretation of the Constitution. The ramification of a reference is that the Constitutionat Court determines it and refers the question back with directions so the Court can continue with the proceeding. Where this Court directs termination of the proceedings, it would for instance be on the basis of jurisdiction, something which every court shoutd in the first instance have a right to determine. Where it is determined in an Original Petition such as ConstitutionaI Petition No 6 of 2023, the matter does not get back per se to the Supreme Court in Civil. Apptication No. 04 of 20?1 and further there is a right of appeaL to the Supreme Court before a paneL of atl Justices of the Supreme Court. This leads to nothing but del.ay in a matter that was conctuded on appeaI by the Supreme Court contrary to articte 126 (2) (b) of the Constitution which provides that: lustice shall not be delayed. 15 20 30

As I have indicated above Civil Appl.ication No 04 of 202i had been determined according to the wording of the ruting thereof though severaI other matters had been sought in that appLication. The remedy of the appl.icant then is not to fix the matter afresh for hearing but to seek for

5 the matter to be reopened, if that is necessary. ln my ruting therefore there is thus far, no proceeding before the Supreme Court as envisaged under articte 137 (5) of the Constitution. The question of whether the matter shoutd be heard or not and whether it shoul.d proceed or not is stitl. to be determined by the court. Further, the appLicant to this appLication on his own raised the question of whether the Supreme Court was a competent court to deal with Civit AppLication No. 04 of 2021 tight of the provisions of sections 29 - 34 of the Civit Procedure Act. 10

Before even considering the provisions of the Civit Procedure Act, it is pertinent to point out that the Supreme Court in the main appeal ls resurrected the orders of the High Court that the matters retating to the audit shatt be deatt with by the High Court after the audit is completed. No audit has been conducted and the fact that an audit shatL be done was finatty and conctusivety determined by the Supreme Court. The question that is Left is whether the appLicant to this apptication is wil.l.ing to have 20 the audit conducted and their conduct thus far would further cl.og the process of carrying out the audit ordered by the High Court which order was upheld by the Supreme Court, the highest appel.tate court in the matter. Protracting the proceedings intertocutory to conducting an audit operates to detay justice because the issue that the audit be conducted 25 was conctuded by the Supreme Court.

The Supreme Court ordered that the parties would report to the High Court after the audit for consequential orders. There is an atteged impasse that is created by the conduct of the lncafex Ltd according to the appticant in Civit Apptication No. 14 ot 2022, where the appl.icant seeks in 30 the interim and pending audit for the company to be restrained from atienating its property and assets pending audit and finat orders of court.

This court has powerto order any stay of proceedings and this power is reserved under rule 5 (2) (b) of the Judicature (Supreme Court Rutes) Directions which provides that:

3s (b) in any civil proceedings, where a notice of appeal has been todged in accordance with rute 72 of these Rutes, order a stay of execution, an injunction or stay of proceedings as the court may consider just.

5 The above rute is however inappticabte to the present matter as no notice of appeat has been fited against a decision of the Court of AppeaL. The rute envisages a notice of appeaI against the decision of the Court of Appeal,. lt is the Civil Procedure Act as imported with the necessary modifications by rute 23 of the Constitutionat Court (Petitions and References) Rutes,2005 which provides that: 10

23. Civit Procedure Act, and rutes to apply

(1) Subject to the provisrons of these Rutes, the practice and procedure in respect of a petition or a reference shatt be regutated, as nearty as may be, in accordance with the Civil Procedure Act and the rutes made under that Act and the Court of Appeal Rules, with such modifications as the Court may consider necessary in the interest of justice and expedition of the proceedings.

(2) For purposes of appeals against a decision of the Court, the Supreme Court Rutes sha[[ appLy with such modifications as may be necessary.

The appl.ication before this court is governed tnter alia by the above rute and the Supreme Court Rutes as modified by the above rules. Such rutes coul.d appty to a reference. Thus far there is no application for a reference. RuLes retating to Petitions appty to the ConstitutionaI Court.

ln retation to inherent powers under rute 2 (2) of the Rutes of this court, such powers can be exercised when the court is moved to consider matters under its rules. Rule 2 of the Rutes of this Court provides that:

2. Apptication.

(l) The practice and procedure of the court in connection with appeats and intended appeats from the Court of Appeat and the practice and procedure ot the Court of Appeat in connection with appeats to the court shatt be as set out in these Rutes.

(2) Nothing in these Rutes shatt be taken to [imit or otherwise affect the rnherent power of the court, and the Court of Appeat, to make such orders as may be necessary for achieving the ends of .justice or to prevent abuse of the process of any such court, and that power shall extend to setting aside judgments which have been proved nutl and void after they have been passed, and shatl be exercrsed to prevent an abuse of the process of any court caused by deLay.

5 Rute 1is concerned with the practice and procedure in appeals and intended appeats. Rute 2 (2) saves the inherent powers of Court in connection to hearing such appeats and intended appeats.

Where there is an apptication to make a reference to the Constitutional Court, the court can exercise its jurisdiction to stay its own proceedings pending resotution of any dispute as to interpretation of a provision of the Constitution and await the outcome of the interpretation. However, there is no apptication for reference before this court and what the appticant has presented is an appl.ication for stay of proceedings pending the hearing of a constitutionat petition fil.ed in the ConstitutionaI Court. lt does not fatt within the ambit of matters over which this court can exercise jurisdiction over since this court is an appeltate court when duty constituted for purposes of the decisions of the ConstitutionaI Court. The apptication for stay of proceedings ought to have been fil.ed in the ConstitutionaI Court. 10

Ordinaril.y the principl.es to be fottowed in granting an order of stay of proceedings were those set out in WiGon v Church (1879) 12 Ch. D 454 and fottowed in Uganda that: 20

> 'As a matter of practice, where an unsuccessfu[ party ls exercising an unrestricted right of appeat, it is the duty of the court in ordinary cases to make such order for staying proceedings in the Judgment appeated from as wi[[ prevent the appeat if successfut from being rendered nugatory.'

ln the matter before court, the appl.icant opted not to state any question as to interpretation of the Constitution but rather to avoid the court and fite a petition chattenging anticipated proceedings. There is in such circumstances no unrestricted right to do so. The proper course as pointed out eartier is to object to the jurisdiction of this court to hear Civil. Appl.ication No. 4 of 2021. lt the objection is overruled, then the counse[ can raise a question as to interpretation of the Constitution for reference to the ConstitutionaI Court. 30

Finatty, the appticant raised the question of whether this court can execute its own judgment. The answer is that as a matter of fact the court reinstated the High Court order in its judgement in Civil. Appeat No. 03 of 2015 and atso specifical.ty ordered the audit of lncafex Limited to be 35

5 28. Powers of referees and arbitrators

in a[[ cases of reference to a referee or arbitrator under this Act, the referee or arbitrator sha[[ be deemed to be an officer of the High Court and, subject to rules of court, shatl have such powers and conduct the reference in such manner as the High Court may direct.

Ctearty such a tria[ and manner of the trial. is stil. L in the hands of the High Court as envisaged by section 28 of the Judicature Act. For emphasis Chibita JSC decl.ined to issue the orders inctusive of the order to find the respondent to Civit AppLication No. 04 of 2021 guitty of contempt of court for at[eged[y frustrating the audit exercise. Let that matter go to the triaI court because it is an issue retating to triaI of a question referred by the High Court to auditors and with the suit stiLt pending conctusion after the award of the auditors. The High Court is the Court seized with jurisdiction to deal with any frustrating factors in the trial by the auditors. The High Court may direct how the triat shatt be conducted. 10 15

By the time this apptication was heard and considered on the basis of written submissions, there was pending to be determined, a question as to whether this court shoutd proceed to hear Civit Apptication No 04 of 2021 and the question was whether this court has jurisdiction to proceed with the apptication. The appLicant to this apptication has ctearly objected to the conduct of any proceedings in Civit Appl.ication No 4 of 2021. Mr. Mathew Rukikaire, the appticant therein has the option to seek protection of this court on any attegations of contempt of court orders but this witt not proceed in Civit Apptication No. 04 of 2021 which was dectined by Chibita JSC. White this court may entertain a fresh apptication for contempt of its orders, the appropriate court is the High Court which has power to deat with issues arising in trial before the referee (the auditor appointed by the parties). 20 30

At the commencement of this apptication, the court issued orders in the interim preserving by consent of the parties the status quo to the effect that no property shatL be transferred or atienated by lncafex Ltd pending determination of its Civit Apptication No. 08 ot 2023 for stay of proceedings. ln the premises, I find no merit in the applicant's appLication because there is technicatty no pending matter before the Supreme Court

5 to be stayed pursuant to finding that Civit Appl.ication No. 04 of 2021 was determrned and what is pending is the issue of whether it can be reopened, a question for this Court to rule on whether it has1urisdiction. ln the premises, Civil. Apptication No. 08 of 2023 as wett as Constitutional Petition No. 06 of 2023 cannot be based on non-existent or merety anticipated proceedings as far as this court is concerned. 10

However, it is in the interest of justice that the orders of the High Court affirmed by this court are not rendered nugatory by al.ienation of any property of the company before the triaL by auditors is done and concluded and before any consequentiaI orders of the High Court maybe issued. I woutd make orders invoking inherent powers of this court under rute 2 (2) of the Rutes of this Court to ensure that the cause of justice is uphetd and that justice shatl. not be deLayed through protracted proceedings that would protong the carrying out of a final order to carry out an audit by ordered as affirmed by the Supreme Court in Civit Appeal. No. 03 of 2015 affirming the orders of the High Court. I woutd in the premises, issue the fotLowing orders:

- '1. Civit Apptication No. 08 of 2023 is dismissed with costs. - 2. Civit Apptication No. 14 of 2O22is hereby referred to the High Court for f urther management. - 3. An interim injunction issues pending audit and issuance of any finaL consequentiat orders of the High Court pursuant to the decree in Civit Appeat No. 03 of 2015 so that: Messrs INCAFEX LIMITED, its directors, sharehotders. officers, employees and or agents are restrained from setLing, mortgaging ptedging. or atienating its ranches and or properties comprise-d in: - a. BLock 937 Ptot 2 Butemezi at Kitintate/Kyambogo measuring 2,567 .7 660 hectares; - b. Bl.ock 163 Ptot 3 Buruti at Gamba, Wampiti Wantyaba, measuring 201.3 hectares; - c. Bl.ock 1005 Ptot 5 Butemezi at Lwankoma Estate; - d. Btock 1002 Ptot ? Butemezi at Kyabatangwa, measuring 777 hectares; - e. BLock 1004 Ptots 2,3.4 Bul.emezi at Nakatama Estate measuring 0.2417 Hectares;

)(

- f. Block 145 Blot 13 Bulemezi, Buruli at Wabtyabya Estate, measuring 510.70 hectares - g. LRV 1210 Folio 9 Ranch No. 15 at Kabula Ranching Scheme measuring 2339.80 hectares; - h. LRV 1560 Folio 16 Ranch No. 9 Bunyoro Ranching scheme; - i. LRV 740 Folio 1 Ranch No. 6A, Buruli Ranching Scheme; - j. LRV 1083 Folio 10, Ranch No. 35, Bunyoro Ranching Scheme The injunction shall last until final conclusion of the audit ordered by the Supreme Court in Civil Appeal No. 3 of 2015 and until the award of the auditors is submitted to the High Court and any final consequential orders issued by the High Court. - 4. Any questions relating to trial by auditors shall be determined by the High Court. - 5. Civil Application No. 14 of 2022 Mathew Rukikaire vs Incafex Ltd is referred to the High Court Commercial Division with no order as to costs. - 6. The costs of Civil Application No. 04 of 2021 and Civil Application No. 08 of 2023 shall be in the cause of the main suit in the High Court which is pending trial by Auditors.

Dated at Kampala the \_\_\_\_ 25

day of $\rho$ 2023

Christopher Madrama Izama

Justice of the Supreme Court

the reportan (7/11/22

#### THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA AT KAMPALA

(Coram: Owiny-Dollo, CJ; Chibita; Musoke; Musota; Madrama, JJ. S. C)

#### CIVIL APPLICATION NO. 08 OF 2023

(ARISING FROM MISCELLANEOUS APPLICATION NO.04 OF 2021)

(ARISING FROM CIVIL APPEAL NO. 03 OF 2015)

**APPLICANT** INCAFEX LIMITED ....................................

#### VERSUS

MATHEW RUKIKAIRE....................................

AND

MISCELLANEOUS APPLICATION NO. 14 OF 2022

(ARISING FROM CIVIL APPEAL NO.03 OF 2015)

MATHEW RUKIKAIRE....................................

**VERSUS**

...................................... INCAFEX LIMITED .................

### **RULING OF OWINY - DOLLO, CJ**

I have had the benefit of reading, in draft, the ruling of my learned brother Madrama, JSC on the two consolidated applications. I agree with his reasoning and decision that; Civil Application No. 08 of 2023 be dismissed and Miscellaneous Application No. 14 of 2022 be referred to the High Court for further management.

Since Chibita, Musoke and Musota; JJ. S. C. also agree, orders are issued in the terms proposed by Madrama JSC.

Dated, and signed at Kampala this. I. T. day of ...................................

Alfonse C. Owiny - Do

rypisher 17/11/28

**Chief Justice**

# THE REPUBLIC OF UGANDA. IN THE SUPREME COURT OF UGANDA AT KAMPALA

(CORAM: OWINY - DOLLO, CJ, CHIBITA, MUSOKE, MUSOTA & MADRAMA, JISC)

### CIVIL APPLICATION NO 08 OF 2023

(ARISING FROM MISCELLANEOUS APPLICATION NO 4 OF 2021)

(ARISING FROM CIVIL APPEAL NO. 03 OF 2015)

INCAFEX LIMITED ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

MATHEW RUKIKAIRE ::::::::::::::::::::::::::::::::::::

# RULING OF MIKE J. CHIBITA, JSC

I have read through the Ruling of Madrama, JSC.

Regarding whether MISCELLANEOUS APPLICATION NO 4 OF 2021 disposed of the matter or not, it never was my intention to determine the application as the extract below clearly shows:

"It is not only prudent but also premature, in this case, for a single judge, of the same court, to sit and make further, additional or different orders, before the orders of the full panel have been properly and exhaustively implemented. It is improper and borders on abuse of process."

That notwithstanding, since the orders address the fundamental issues between the parties, I agree with all the orders proposed in the ruling.

Dated at Kampala this ....................................

Hon. Mike I. Chibita

JUSTICE OF THE SUPREME COURT

$\frac{1}{23}$

## THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPAIA CIVIL APPLICATION NO. 08 OF 2023 (Arising from Miscellaneous Application No. 4 of 2021) (Arising from Civil Appeal No. 03 of 2015)

INCAFEX LIMITED:::::::::::::: **APPLICANT**

### VERSUS

MATTHEW RUKIKAIRE::::::::::::::::::::::::::::::::::::

### AND

### CIVIL APPLICATION NO. 14 OF 2022 (Arising from Civil Appeal No. 03 of 2015)

MATTHEW RUKIKAIRE::::::::::::::::::::::::::::::::::::

### **VERSUS**

INCAFEX LIMITED::::::::::::::::::::::::::::::::::::

CORAM: HON. MR. JUSTICE ALFONSE OWINY-DOLLO, CJ HON. MR. JUSTICE MIKE CHIBITA, JSC HON. LADY JUSTICE ELIZABETH MUSOKE, JSC HON. MR. JUSTICE STEPHEN MUSOTA, JSC HON. MR. JUSTICE CHRISTOPHER MADRAMA IZAMA, JSC

### RULING OF ELIZABETH MUSOKE, JSC

I have had the benefit of reading the ruling of my learned brother Madrama, JSC and I agree with his reasoning, conclusions and the orders he has proposed.

Dated at Kampala this ....................................

### Elizabeth Musoke

Justice of the Supreme Court

The registred 17/11/23

Butined