Obal v Gadaffi and 6 Others (Miscellaneous Application 224 of 2024) [2024] UGHCCD 184 (8 November 2024)

## **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT KAMPALA**

### **(CIVIL DIVISION)**

#### **MISCELLANEOUS APPLICATION NO.224 OF 2024**

## **(ARISING FROM CIVIL SUIT NO.092 OF 2024)**

**OBAL DANIEL::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT**

#### **VERSUS**

**1. GADAFFI NASSUR,** *(Chairperson NRM Youth League)::::RESPONDENTS*

**2. DOMINIC MAFABI GIDUDU,** *(Chairperson NRM Elder's League)*

- **3. JAMES TWEHEYO,** *(Chairperson NRM Worker's League)* - **4. MWESIGWA RUKARI,** *(Chairperson, NRM Entrepreneur's League)*

**5. GEN. JIM MUHWEZI,** *(Chairperson NRM Veteran's League)*

- **6. GABRIEL KATO,** *(Chairperson, NRM PWD's League)* - **7. LYDIA WANYOTO,** *(Chairperson, NRM Women's League)*

#### **BEFORE: HON. JUSTICE. SSEKAANA MUSA**

#### **RULING**

The applicants brought this application by way of Chambers summons against the respondent under section 98 of the Civil Procedure Act, Order 41 r.1 & 2 of the Civil Procedure Rules for orders that;

*1. A temporary injunction doth issue restraining the Respondents from illegally occupying office as Chairpersons of their respective leagues in the National Resistance Movement (NRM) until the hearing and determination of the main suit.*

- *2. A temporary injunction doth issue restraining the respondents from unlawfully convening, attending or participating in any meetings in capacities as Chairpersons of their respective leagues in the National Resistance Movement (NRM) Party and in their extended capacities as members of the NRM Central Executive Committee (CEC) until the hearing and determination of the main suit.* - *3. A temporary injunction doth issue restraining the respondents from unlawfully obtaining any emoluments as Chairpersons of their respective leagues of the National Resistance Movement (NRM) Party and in their extended capacities as members of NRM Central Executive Committee until the hearing and determination of the main suit.* - 4. *Costs of this application be provided for*.

The grounds in support of this application are set out in the affidavit of the applicant which shall be read and relied upon at the hearing but briefly states;

- 1. The applicant is a politically active member of the National Resistance Movement (NRM) Party and is rightfully aggrieved and has been negatively affected by the respondent's illegal and unlawful actions. - 2. That under the Constitution of NRM Party Article 46, the term of office for all holders of elective positions in the National Resistance Movement is five years - 3. The respondents are unlawfully occupying positions since 2020 when their 5-year term expired as Chairpersons of their respective leagues in the National Resistance Movement(NRM) Party and in their extended capacities as members of the NRM Central Executive Committee (CEC)

having not undergone a proper election process as required by the Party's Constitution.

- 4. The respondents are unlawfully convening, attending or participating in any meetings in capacities as Chairpersons of their respective leagues in the National Resistance Movement (NRM) Party and in their extended capacities as members of the NRM Central Executive Committee (CEC). - 5. The respondents are unlawfully obtaining emoluments in their capacities as Chairpersons' of their respective leagues in the National Resistance Movement (NRM) Party and in their extended capacities as members of the NRM Central Executive Committee (CEC). - 6. The respondents have been unlawfully renewing their tenures through resolutions as opposed to having substantive election as provided for in the National Resistance Movement (NRM) party Constitution. - 7. The applicant's civic right to participate in party elections and contest to be voted for in any party elections has been violated by the respondents and cannot be adequately atoned by way of damages.

In opposition to this application the respondents filed an affidavit in reply through James Tweheyo wherein he vehemently opposed the grant of the orders being sought briefly stating;

1. That the application is legally untenable since the applicant's pleadings/application are incurably defective, an abuse of court process, incompetent, malafide, vexatious, frivolous and a preliminary point of law shall be raised at the hearing seeking its dismissal.

- 2. The applicant instituted the main suit against the applicants and NRM allegedly on behalf of the members of National Resistance Movement to seek enforcement and upholding of the Constitution of the Republic of Uganda and other laws of Uganda. - 3. The said suit does not disclose a cause of action against the defendants and the same is incurably defective and an abuse of court process. - 4. That the applicant has no locus to sue the 2nd to 8th respondents since he is not a member of those leagues/electoral colleges and therefore the application is misconceived and an abuse of court process. - 5. That under the 1st respondent's/defendant's constitution, the Central Executive Committee (CEC) in exercise of its functions has the mandate/power to extend the tenure of office of any officer holding office in the respondent/defendant. - 6. That the tenure of office was legally extended by CEC under its mandate derived from the constitution of the 1st defendant and it was done in accordance with the 1st defendant's constitution. - 7. That the applicant's interests are not forcefully tied to the 1st defendant and if the applicant feels dissatisfied with the current state of affairs of the 1st defendant on how it is being managed, and feels his interests are not being represented and taken care of, he is free and at liberty to join any other political party of his choice among the many where he feels that his interests can be achieved.

The applicant was represented by *Ezra Mugabi and Asiimwe Mugume* while the respondents were represented by *Atwijukire and Richard Mwebaze*

At the fixing of the date for hearing of this application court directed the parties to file in written submissions which the parties complied.

I have considered the respective submissions and have established there are some preliminary issues which ought to be considered in this application since they have a serious bearing on the entire case as presented.

## *PRELIMINARY CONSIDERATIONS/POINTS OF LAW*

# *Whether the application for temporary injunction is competently before the court?*

*Analysis*

A preliminary objection on points of law challenging the validity of the institution of a suit can only be determined at the initial stage by reference to the pleadings, particularly the application or the plaint.

The applicant brings this suit and application against the 9 defendants and this application specifically against 7 respondents set out herein and for reasons best known to himself left out National Resistance Movement (1st defendant and Tanga Odoi *(Chairperson NRM Electoral Commission)*-9 th defendant.

The application for temporary injunction leaves out the entity which is a body corporate-NRM for which the applicant is trying to protect and whose constitution they are vehemently applying to make their respective cases.

Between the applicant and the 7 th respondent who is acting for the party or in the best interests of the party? What is the net effect of leaving out the party-NRM in the current proceedings and who will protect the party against the applicant and respondents? The court's view is that the current parties to this suit are fighting for their personal benefits and interests and this may not necessarily be the interest of their party whose membership extends to the country.

The court should be mindful not to issue injunctive orders which will affect the Party-National Resistance Movement which is not before this court on this application and is not specifically represented in the present proceedings. Anyone whose presence is crucial and fundamental to the resolution of a matter before the court must be made a party to the proceedings. The only reason which makes it necessary to make a person or entity a party to an action is that they should be bound by the result of the action, and the question to be settled therefore must be a question in the action which cannot effectively and completely unless such a person or entity is a party.

Therefore, National Resistance Movement is a proper, desirable and necessary party since they have an interest or may be affected by the result thereof and whatever is being done by either of the parties is in the name of the party and its constitution. The present parties' interests may be adverse to the general spirit of the party nationally and it may have been deliberate to leave it out since its interests are adverse. Any judgment or ruling or orders given against a necessary and desirable party behind its back will be to no avail and it cannot be allowed to stand. See *Amb Wasswa Biriggwa & 27 Ors v Boniface Toterebuka Bamwenda HCMA No. 962 of 2023*

The orders sought against the respondents may have dire consequences for the entire National Resistance Movement and the court cannot make such orders. Some orders seem to be in the interest of the party but the persons whom the applicant seeks to restrain from holding office are representative of special constituency and will remain unrepresented for the period this injunction is granted. This would be counterproductive when the party is making important decisions affecting the entire National Resistance membership in the entire country. This application would be incompetent in absence of NRM a necessary party which would protect the interests of the national membership in the entire country and the court would be very hesitant to grant the temporary injunctions sought against the 7 respondents. The orders sought would amount to condemning the party without a hearing.

## *Whether the main suit is competently and tenable before the court?*

The second preliminary consideration equally relates to the institution of the main suit out of which this application arises. The defendants have raised in their pleadings (Written Statement of Defence) preliminary objections to the effect that;

- *1. The suit is untenable and premature for failure to comply with and/or exhaust the 1st defendant's internal dispute resolution mechanisms prior to the filing of the same in court.* - *2. It is an abuse of court process since the 1st defendant is being sued for failure to hold an election which it is already in the process of conducting.*

### *Analysis*

# The *Constitution* under the *National Objectives and Directive Principles of State Policy* provides;

*All political and civic associations aspiring to manage and direct public affairs shall conform to democratic principles in their internal organisations and practice.*

### *Section 19 of the Political Parties and Organisations Act* provides;

*A political party or organisation, a leader, official, candidate, member, agent or representative of a political party or organisation shall adhere to the Code of Conduct for Political Parties and Organisations set out in the Fourth Schedule to this Act.*

### *Role of political party or organisation*.

*Every political party or organisation shall-*

*(a) Respect, uphold and defend the constitution, rules and regulations of its political party or political organisation developed and agreed upon in accordance with this code of conduct.*

Political parties and organisations are essential organs of the democratic system. They are organs of political discussion and of formulation of ideas, policies and programmes and generally provide the citizen with a choice of forum for participation in governance, whether as a member of the party in government or a party in opposition, thereby ensuring the reality of government by discussion which democracy is all about in the final analysis.

Unduly interference in the management of political parties or organisations by the state or courts may stifle their growth, which ultimately weakens the democratic culture. However, to leave political parties completely unregulated and unmonitored may eventually make the democratic system so unmanageable so as to become hindrance to progress, national unity, good government and growth of a healthy democratic culture. There is thus need for a balanced regulation as well as the liberty for the political parties to operate without too much interference in the day to day operations of the party.

The question of who holds which position in a political party or organisation or questions of nomination of candidates for elective offices from members of a political party is governed by the rules, guidelines and constitution of the political party concerned as a matter of internal affairs of the party concerned. Therefore, such questions are non-justiciable in a court of law and it is a political question which is domestic (that is, internal) affair of the party. A member who is aggrieved has no cause of action which can raise any question as to the rights and obligations of the member determinable by a court of law. However, the court may in exceptional circumstances examine if the conduct of primaries elections was done in accordance with party's constitution and guidelines. The courts will never allow a political party to act arbitrarily or as it likes. See *Aine Godfrey Kaguta Sodo v NRM & Anor HCMA 343 of 2020; Emenike v P. D. P (2012) 12 NWLR (pt 1315) p.556 (SC).*

The applicant/plaintiff in this case is challenging the 7 office bearers for holding offices after their term of office expired in 2020. It is not in dispute that during the expiry of their term, there was an outbreak of Covid 19 pandemic which had the effect of allowing gatherings. The party (NRM) in its wisdom decided to have the term extended and this is within their mandate under the constitution which the court would be reluctant to force and or compel them to conduct.

The constitutions of a party should provide an internal mechanism of determining and resolving disputes within the organisation. There should be levels of addressing grievances at the different levels within the political party or organisation. Once there exists internal mechanism or procedures for resolving disputes, the same must be adhered to in order to avoid over interference by courts in internal matters of parties.

Political parties or organisations like any other corporation operate within the guidelines, power duties set out in their constitution. All their members are bound by the provisions set in the party's constitution. Their respective rights and obligations created by their constitution must be remedied if breached by any of its members as provided for in the constitution. Intra party governance is entirely within the province of the relevant party. The internal affairs of political parties are exclusive to the parties. Thus they are not within the competence of the court. See *Pam v A. N. P. P (2008) 4 NWLR (pt 1077) 219; Bakam v Abubaker (1991) 6 NWLR (pt 199) 564*

A man who joins a society, as in case of a political party must abide by the will of that association or clear out, if a man finds himself as a member of such association as it takes a decision which he does not accept, a decision could be contrary to common sense, he has only one course open to him, and that is to get out. He has to abide or get out as voluntarily as he came in. Freedom to associate under a political party is not by conscription and what is morally reprehensible may not legally be punishable. Any party dissatisfied by the way the party is operating or conducting its business or affairs is at liberty to opt out and no court of law will have jurisdiction to dabble into the domestic affairs of a political affairs of a political party. See *Ozigbo v P. D. P (2010) 9 NWLR (pt 1200) 601 at 655*

The plaintiff's suit is premature since the 1st defendant has set the process in motion of updating the voters register which one of the preliminary processes in its election cycle. The party has issued a road map for the commencement of elections within the party which was duly issued and released and it up in earnest. The election of members to special organ is tiered process that commences with elections at the grassroot structures of the 1st defendant at parish level, sub-county level, district level and finally at the national level.

The plaintiff cannot impose his wishes on an entire political party (NRM) and if he believes the party is very slow for his speed under the roadmap, then he is at liberty to *'jump ship'* and form his own political party or join another political party which is up to his speed. The courts will not be available to help the plaintiff push the political party to move at his pace because he wants to take up the position of Chairperson NRM Youth League earlier than the party's schedule or timetable.

In the result for the reasons stated herein above this application is struck out for being incompetently before this court with costs to the respondents.

The application for security for costs which was filed in this court is overtaken by events and dismissed with no order as to costs.

There is no rule of law or practice that prevents the court in a proper case from granting on motion substantially all or some of the reliefs claimed in the main suit.

In the same vein the main suit is struck off with each party bearing its costs.

It is so ordered.

*SSEKAANA MUSA JUDGE 8 th November 2024*