Odida v Omaya and 5 Others (Misc Cause 3 of 2023) [2023] UGHCCD 204 (6 July 2023)

Full Case Text

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT GULU

## **MISCELLANEOUS CAUSE NO. 03 OF 2023**

$10$

$\mathsf{S}$

**ODIDA CHARLES....................................** ......................................

**VERSUS**

| | 1. OMAYA PATRICK | | |----|-------------------------|--| | | 2. CAROLINE OKWERA | | | | 3. OWEKA MICHAEL | | | 20 | 4. MAKEBA JENNIFER | | | | 5. APOTO CHRISTINE | | | | 6. ATEMO NIXON KOMAKECH | |

#### 25

# BEFORE: HON. MR. JUSTICE GEORGE OKELLO

#### RULING.

#### **Introduction**

By the present cause, the Applicant filed a Petition under section 33 of the 35 Judicature Act Cap 13; section 98 of the Civil Procedure Act Cap.71; and Order 52 rules 1 and 3 of the Civil Procedure Rules S. I 71-1, seeking to challenge the outcome of a Market Leadership election in which the 1st Respondent was declared Chairperson of Gulu main Market Vendors Association, and the Applicant a first runner-up. The 5th Respondent is 40 one of the new executives of the Market, whereas the 2nd, 3rd and 4th

Hassen

Respondents served the preceding term that ran from 2019 to 2022 and $\mathsf{S}$ have not been re-elected to office. The 6th Respondent was the Returning Officer of the impugned election. He is neither a member nor an Executive of Gulu Main Market Vendors Association. The current term of office runs from 2023 to 2026. The 1st Respondent has since assumed office, having been sworn on 14th March, 2023 by the Chief Magistrate of Gulu. The $10$ Election was conducted pursuant to the constitution of Gulu main Market Vendors Association. The constitution was made by the members on 24th September, 2016. A copy was lodged with the Uganda Registration Services Bureau on 16th September, 2019, and also lodged with the Community Based Services Department, Gulu, on or about 23rd $15$ September, 2019. The Constitution indicates the Applicant, and the 1st and 2nd Respondents are some of the members of the Market Vendors Association. The Constitution was however amended on 10th January, 2023, during an Emergency General Assembly Meeting, to allow for removal of term limit of office bearers. 20

Before the election could be conducted, some members of the Association who were apparently unhappy with the delayed conduct of the election at the expiry of the old term, in December, 2022, threatened a demonstration if Gulu City Clerk did not intervene in the affairs of the Market vendors, and cause the 1st Respondent to call for the General Assembly and hold the election. The threats attracted the attention of the Resident City

HuAoDen.

$\overline{2}$

Commissioner who called a meeting of delegates, during which the $\mathsf{S}$ members presented their complaints. Subsequently, a Delegates Conference was organized to agree on the election of leaders for different market sectors. The election was a success. The elected sector leaders were then called for another delegates meeting to come up with the roadmap and guidelines for the election of the Central Executive Committee of the $10$ Main Market Vendors Association. The Applicant was nominated on 31st January, 2023, and subsequently appointed his polling agents. The 1st Respondent was also duly nominated, and as well-appointed his agents. The election was held on 3rd February, 2023 through secret ballot. The election was overseen by the City Clerk which was constituted by $15$ agreement of the members, as the Electoral body. The Applicant returned 504 votes while the 1st Respondent returned 764 votes. The 1st Respondent was declared duly elected Chairman of Gulu Main Market Vendors Association on 3rd February, 2023 by the Chairperson Electoral Commission, an official of Gulu City Council. He was sworn into office by 20 the Chief Magistrate of Gulu Chief Magistrates Court on 14th March, 2023.

Being aggrieved and dissatisfied with the results, the Applicant lodged the present motion on 9th March, 2023, supported by several affidavits sworn by himself and his agents. He made several prayers, which I set out below; a) The elections of all the newly elected office bearers for Gulu Main Market Vendors Association be declared null and void.

Hhroden.

$\mathfrak{Z}$

- b) The 1st Respondent be restrained from proceeding to swear in as the Chairperson of the Association. - c) The Association be ordered to conduct fresh elections in accordance with the Constitution of the Association. - d) The Association be directed to validate the voters' register and remove persons who are already dead. - e) The purported amendment of the Constitution of the Association be declared null and void. - f) Members of the City Council be restrained from interfering into the election affairs of Gulu Main Market Vendors Association. - g) Costs of this application be provided for.

### **Grounds**

$\mathsf{S}$

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There are eight grounds of the Application but in summary, the Applicant avers that the election was conducted in a manner that was contrary to the constitution of the Association; that, the Respondents as the elected 20 executives are occupying office illegally; that, the 6th Respondent presided over the election as a returning officer yet he was not elected by members at the General Assembly to perform that role; that, non-members of the Association voted on the invitation of the 1st Respondent; that, the Respondents did not resign from office prior to the election; that, the 25 agents of the 1st Respondent issued ballots to voters, contrary to the

HutoOm.

$\overline{4}$

$\mathsf{S}$ principles of free and fair election; and that, security team of Gulu main Market chased away voters of the Applicant.

### **Opposition**

The Application was resisted. All the Respondents except the 6th, filed affidavits in opposition. Their witnesses also swore affidavits. The $10$ Respondents deny the allegations, contending that, the election was held in accordance with the constitution of the Association. They pray the Application be dismissed with costs.

#### $15$ Legal representation

Learned Counsel Mr. Julius Ojok appeared for the Applicant while learned counsel Mr. Doii Patrick represented the 1st to 5th Respondents. The 6th Respondent did not appear and was unrepresented. There was no proof of due service on him either. Learned counsel filed written submissions.

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#### **Issues**

Learned Counsel for the Applicant framed three issues, which the Respondents' counsel adopted. During the hearing, court asked the parties to address the issue of jurisdiction of court to entertain the Application. Having considered the pleadings and the address for the parties, the following issues arise;

HUAOOm.

- 1. Whether the court has jurisdiction to hear petition challenging election of executives of Gulu main Market Vendors Association? And If so, - 2. Whether the procedure adopted by the petitioner/ Applicant is proper? - 3. Whether or not the election of the $1^{st}$ and $5^{th}$ Respondents as Executives of Gulu Main Market Vendors Association was conducted contrary to the constitution of the Association, Laws of Uganda, and the principles governing free and fair election? - 4. Whether if issue 1 is answered in the affirmative, what is the effect of non-compliance on the election of the Executives of Gulu Main Market Vendors Association?

$\mathsf{S}$

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5. Whether the Applicant has a cause of action against the $2^{nd}$ , $3^{rd}$ , 4th and the 6th Respondents?

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6. What remedies are available to the parties?

Hurolen.

#### **Resolution** $\mathsf{S}$

#### Issue 1: jurisdiction of court to hear the Application.

Jurisdiction is the power of court to hear and entertain an action or $10$ proceedings. It is the extent of the authority of Court to administer justice not only with reference to the subject matter of the suit but also the local or pecuniary limits of its jurisdiction. See: Mukasa Vs. Muwanga, HCMA No. 31 of 1994; Sir Dinshah Fardunji Mulla, The Code of Civil Procedure, Vol. 1, 17th Edn, Lexis Nexis, 409.

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Jurisdiction of Court is not a matter of inference but of law and must be prescribed by law. Proceedings of a Court without jurisdiction are a nullity as no court can confer jurisdiction upon itself. Lack of jurisdiction goes far beyond any "error, omission, or irregularity" nor can it be regarded as a mere technicality.

# See: Desai Vs. Warsama (1967) EA 351; Kaggwa Michael Vs. Apire John, High Court Misc. Application No. 01 of 2023.

$25$ It is not disputed that the High Court, subject to the provision of the Constitution, have unlimited original jurisdiction in all matters. See Article 139 (1) of the Constitution of Uganda, 1995. There are however three

Hustodin.

- provisions of the Constitution which article 139 (1) is subject to. The first $\mathsf{S}$ is the category which vests original jurisdiction in a court other than the High Court. Example is article 137 (1) which vests original jurisdiction to determine any question as to the interpretation of the Constitution in the Court of Appeal sitting as the Constitutional Court. Another example is Article 104(1) which gives the Supreme Court the exclusive jurisdiction to $10$ challenge the election of the President. See: Habre International Co. Ltd Vs. Ebrahim Alarakia Kassam & others, Civil Appeal No. 04 of 1999 (per Mulenga, JSC) (RIP). - Under Article 152 (3) of the Constitution, the High Court can not exercise 15 original jurisdiction in tax matters, as such matters are only entertainable by the Tax Appeals Tribunals, which is a forum of first instance in tax matters, with the High Court only exercising appellate jurisdiction. See: Uganda Revenue Authority Vs. Rabbo Enterprises (U) Ltd & Mt. Elgon Hardware Ltd, Civil Appeal No.12 of 2004 (SCU) (per Prof. Lillian 20 Tibatemwa Ekirikubinza, JSC).

The jurisdiction of the High Court must, however, be exercised in accordance with the law.

Mr. Ojok submitted that the instant matter, being a matter challenging the election of Gulu Market Vendors Association, is not governed by written

HAAOOW

- law. Learned counsel was quick to add that, in such a case, common law $\mathsf{S}$ should apply. Learned Counsel also contended that the written constitution of the Association is not governed by any written law. He was however emphatic that the Respondents did not comply with the Constitution of the Association. Learned Counsel submitted that the power and jurisdiction of this court is derived from the Constitution of Uganda, $10$ 1995, and section 33 of the Judicature Act as well as section 98 of the Civil Procedure Act, and thus court ought to entertain the application/ petition. - Regarding the power of this court to apply the common law doctrines and 15 principles of equity, counsel found comfort in section 14 (2) of the Judicature Act. Learned Counsel cited the case of **Mukuba Charles Vs.** Julius Kiyimba Lubega, Misc. Application No. 107 of 2022, where Bernard Namanya, J., applied the common law doctrines and principles of equity, as set out in section 14 (2) (b) of the Judicature Act Cap. 13, to 20 resolve the matter before that court.

This Court notes that, Namanya, J. was dealing with a matter requiring severance of joint tenancy. Since no statute provided for severance, the court invoked the principles of common law and equity which provide for it. In its conclusion, the Court ordered, inter alia, for the severing of the

Hasson

joint tenancy between the parties, with each taking ownership of a portion $\mathsf{S}$ of the suit land which they had long held as joint tenants.

Mr. Ojok also submitted that, being an unincorporated association, the High Court has jurisdiction to review the election decision of the Association. Learned Counsel cited the Canadian case of **Dimitrious** Karahalios Vs. Conservative Party of Canada, 2020 ONSC 3145, a decision rendered by Ontario Superior Court of Justice (per Perell, J.)

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Learned Counsel further cited the case of **Chombe Simea & 2 others Vs.** Kaya Parish Grazing Area & another, High Court Civil Appeal No. 0015 15 of 2010, where Stephen Mubiru, J. held that, where judicial redress is sought of a legal injury or wrong suffered by a person or class of persons, in order to invoke jurisdiction of the court, the person invoking must not only have an enforceable personal right or interest in the matter, but must also have capacity to initiate the action. 20

Learned Counsel passionately urged the court not to abdicate its role of determining the dispute, adding, it would be contrary to common law and public policy, to attempt to oust the jurisdiction of the court. Learned Counsel concluded by invoking the principle that underpin the relationship of members in an unincorporated association. Relying on the English case of **Baker Vs. Jones & others [1954] 2 All ER 553**, Learned

HutoQue.

Counsel submitted that the relationship between members of an $\mathsf{S}$ unincorporated association is contractual and the contract is contained in, or to be implied from the rules. Courts must, therefore, consider such contract as they would consider other contract. Public policy demands that parties cannot by their contract, oust the jurisdiction of court. Even where parties by contract, make a tribunal to arbitrate their disputes, the $10$ tribunal cannot be the final arbiter on matters of law, and so their decisions can be examined by courts.

Counsel for the Respondents did not respond to the Applicant's submissions on the issue of jurisdiction but submitted generally on the $15$ issues they had framed.

Be that as it may, this court has a duty to first determine whether it has jurisdiction to entertain an election dispute involving members of an unincorporated association, because, without jurisdiction, a court 20 purporting to act, acts in vain. If a court lacks jurisdiction, it downs its tools. See: "Lillian S" Vs. Caltex Oil (Kenya) Ltd, [1989] LLR 1653 (CAK); Matiba Vs. Moi [1990-1994] 1 E. A 322 (CAK).

While considering the matter, I shall bear in mind the wisdom expressed 25 by Mulenga, JSC, in Habre International Company Ltd Vs. Kassam & others (supra) thus,

Hussem

"I would caution against the tendency to interpret the law in a manner that would divest courts of law of jurisdiction too readily. Unless the legal provision in question is straightforward and clear, it would be better, in my view, to err in favour of upholding jurisdiction than to turn a litigant away from the seat of justice without being heard. The jurisdiction of courts of law must be guarded jealously and should not be dispensed with too lightly. The interests of justice and the rule of law demand this."

$\mathsf{S}$

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I appreciate learned counsel for the erudite address. I must however, with 15 respect, observe that, in the authorities cited by learned counsel, none of the courts was dealing with the issue similar to that involved in the instant case. The main issue here is whether this court has power to adjudicate an internal election dispute in an unincorporated association. The related matters raised, such as the alleged illegal amendment of the constitution 20 of the association, in my view, is secondary. The gist of the complaint, as I understood it, is about the improper conduct of the Gulu Main Market Vendors Association election. The authorities cited by learned Counsel, with respect, did not deal with an election dispute in an unincorporated association. I have also not been able to lay my hands on any local or 25 foreign decisions on the matter. I was, however, invited to apply the

HutoQui

principles of common law and equity. No such principles dealing with a $\mathsf{S}$ matter such as the present was laid before me.

The closest case cited by learned counsel is the Canadian case of Dimitrious Karahalious Vs. Conservative Party of Canada (supra). However, the facts of that case are not on point, although the principles $10$ enunciated therein are useful in guiding on the category of matters which this court could deal with, when the rights of a person who is a member of an unincorporated association is involved. There, the court was confronted with a situation where the Plaintiff had been disqualified by an in-house

tribunal of the Conservative Party to which he belonged, from contesting 15 for leadership position. The Party was a federal political party and an unincorporated association. The Plaintiff's disqualification followed some distasteful remarks he had made against an opponent which was found to be contrary to the principles of the party. The Plaintiff took a summary judgment motion for mandatory orders, to restore his candidacy. Court 20 held that the decision to disqualify the plaintiff was invalid, and set it aside.

The above case thus dealt with the enforcement of a significant legal right. The Court made profound observations on the circumscribed nature of 25 court's jurisdiction when intervening in the affairs of an unincorporated association operating in the private sector. I quote,

Hutolin

"The court's jurisdiction to intervene in the affairs of an unincorporated association operating in the private sector depends on the presence of a legal right founded in tort, contract, restitution, or a statutory provision; courts only interfere if legal rights are at stake. The courts will not intervene with the affairs of an unincorporated association where no civil or property rights is $10$ involved in the activities of the group." (Underlining is for emphasis.)

$\mathsf{S}$

See also: Surrey Knights Junior Hockey Vs. Pacific Junior Hockey League, 2018 BCSC 1748; Bell Vs. Civil Air Search & Rescue Assn., 2018 MBCA; Highwood Congregation of Jehovah's Witnesses $15$ (Judicial Committee) Vs. Wall, 2018 SCC 26.

The Canadian Court further noted that, the constitution of an unincorporated association and its by-law, if any, constitute a contractual relationship, setting out the rights and obligations of the unincorporated 20 association and its members.

Unincorporated associations are organized as a complex of contracts between each and every member. Unincorporated association or group and its members are bound by the terms of the constitution and by-laws (if any) and there is an obligation on the group's members to observe its constitution and by-laws. The complex of contracts is of a special nature;

Humolin

there are multiple contracting parties, entering and leaving the $\mathsf{S}$ relationship, and being subject to changing contractual obligations as constitutions and bylaws are amended from time to time.

Court has jurisdiction to review the decisions and procedures of an unincorporated association or group operating in the private sector as a $10$ matter of contract. Members of groups that have constitutions, by-laws, and rules are entitled to private law remedies to have their agreement enforced in accordance with its proper interpretation.

- The Court has the jurisdiction to enforce the contractual rights between $15$ an association and its members and the contractual rights of the members between or among themselves. The court has jurisdiction to interpret the contracts that define the rights of the members in respect of the association's operations. Where, however, the affairs of a group or unincorporated association are governed by private law, a court has only $20$ a limited jurisdiction to review the conduct and decisions of associations, and the court will only do so if a significant private law right or interest is involved. - See: Dimitrious Karahalious Vs. Conservative Party of Canada 25 (supra).

H4ADQum

I wish to note that courts have intervened where a significant private law $\mathsf{S}$ right or interest is involved; for example, if a member of the association was expelled or lost his or her membership status, or has been deprived of his or her membership privileges, or his or her ability to pursue vocations and avocations associated with the association have been lost. The court does not review the merits of the association's conduct or decision but $10$ reviews whether the purported expulsion or loss of membership or of the membership privileges was carried out according to the applicable rules of the association and the principles of natural justice (procedural fairness), and without mala fides.

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Thus, where there is jurisdiction as a matter of contract and a significant right or interest is engaged, the court may determine: (a) whether the voluntary group or unincorporated association acted in accordance with its rules; (b) whether it acted in accordance with the principles of natural justice, and (c) whether the association's decision was come to bona fide.

Therefore, where the constitution, by-laws, or rules of the group or unincorporated association operating in the private sector purport to make the group's or association's decision final and binding and without the right for review or appeal, the High Court retains limited jurisdiction to review the procedural integrity of the group's/ association's action or decision, even if its constitution or rules purport to oust the jurisdiction of

Hhto Qui

court. This is in line with the historic principle that a contract that $\mathsf{S}$ purports to oust access to the courts, is illegal and unenforceable, for being contrary to public policy. Such provisions are variously termed: domestic clauses, privative clauses, exclusionary clauses, waiver clauses, nonjusticiable rights clauses.

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Lord Denning re-echoed similar sentiments on the intervention of court's in the affairs of an unincorporated association and ouster clauses, in Lee Vs. Showmen's Guild of Great Britain, [1952] 1 All E. R 1175, at p. 1180-81.

In the present case, members of Gulu main Market Vendors Association, as noted, made their constitution and lodged a copy with with the Uganda Registration Services Bureau. It of course remained unincorporated. The Association constitution was also lodged with the Community Based Services Department, Gulu, although there is no document to show that the Association has attained the status of a Community Based Organization. Be that as it may, the Association constitution constitute a contract setting out the rights and obligations of its members.

In interpreting any contract, courts do follow the words of the instrument 25 and looks no further. The contract terms bind the parties to it. I can do no better than quote the words of Lord Halsbury, L. C, in the case of **J. T Smith**

Haroam.

& the Barrow Haematite Steel Co. Ltd Vs. Henry Cooke, Rachel Swinnerton & others, [1891] A. C 297, at p. 299 thus:

"I must say I for once have always protested against endeavouring to construe an instrument contrary to what the words of the instrument itself convey, by some sort of preconceived idea of what the parties would or might or perhaps ought to have intended when they began to frame their instrument... I think I am not entitled to put into the instrument something which I do not find there, in order to satisfy an intention which I do not find there, in order to satisfy an intention which is only reasonable. If I presume what their intentions were, I must find out their intentions by the instrument they have executed; and if $I$ can not find a suggested intention by the terms of the instrument which they have executed I must assume that their intentions were only such as their deed discloses."

$\mathsf{S}$

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The statement of Lord Halsbury, L. C was cited with approval by the then East African Court of Appeal in **Sango Bay Estates Ltd & others Vs.** Dresdner Bank Ag (No.2), [1971] 1 E. A 307 (CAK).

In the present matter, whereas this court takes judicial notice that Gulu 25 main Market is not private but a public market under the control and oversight of Gulu City Council, established pursuant to the now repealed

Hutoam. provisions of the Markets Act Cap 94, it appears the market leadership $\mathsf{S}$ election was left to the registered vendors to decide in accordance with their constitution. The limited public sector control, and oversight by the City Clerk, of course with the consent of members, as the Electoral body, in my view, does not detract from the fact that the association of the Market Vendors is that of a private nature. $10$

The constitution of the association provides for election of executives, in article 6 (2). It does not provide for a grievance handling mechanism where a member is aggrieved with the election outcome. The constitution of the Association is also not elaborate on rights and obligations of its members. It does not purport to confer a right on a member to challenge domestic election in a court of law and how that challenge ought to be taken. There is no by-law made pursuant to the Market constitution, purporting to regulate the market leadership election. Mr. Ojok conceded, rightly in my view, that there is no law regulating this election. Whereas learned counsel 20 invited me to apply common law and principles of equity, with respect, no legal framework whatsoever provide for standards for assessing election in a private unincorporated association. No common law or equity principles pursuant to which this court could purport to exercise its powers have been cited. Again, as I shall amplify, the jurisdiction of this court, whereas 25 it exists, is circumscribed.

Harodin.

$\mathsf{S}$ I appreciate that this action is premised on section 33 of the Judicature Act. With respect, section 33 is not a jurisdiction conferring provision, but provides for the power of court to grant remedies. Section 33 of the Judicature Act, therefore, does not by itself confer jurisdiction on the High Court but creates a power which may be exercised where jurisdiction $10$ exists. With regard to section 98 of the Civil Procedure Act, Cap.71 whereas the section preserves the inherent powers of court, the inherent powers cannot be invoked in a case such as the instant, where the jurisdiction is circumscribed. Powers under section 98 of the CPA cannot be invoked where to do so would conflict with the exercise of a limited jurisdiction.

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I, therefore, hold that this court has jurisdiction but limited to challenging the decisions or actions of the association where a significant private law right or interest is at stake, in which private law remedies are invoked. The interest is thus limited to civil or property rights.

I thus next resolve the issue of whether the Applicant's case comes within the limited grounds, for invoking this court's jurisdiction. Being a member of the association in itself naturally confers a property right in the association, thus a protectable right. It has not however been alleged that any one purported to expel the Applicant from the Association of Market Vendors. The Applicant has also not premised his claim on a violation of public policy or violation of fundamental human rights. (See: Polin Vs.

Husson.

$\mathsf{S}$ Kaplan, 257 N. Y.277, PP.281-2, Court of Appeal of the United States). It is my considered view that the matters canvassed by the Applicant fall outside the category of matters where this court could exercise limited jurisdiction. I, therefore, hold that the application does not fall in the category of matters which this court would entertain within its circumscribed jurisdiction. That is, challenging an election by a member $10$ of the market vendors association, does not fit within the civil or property rights of the applicant. Thus the annulment of the private election in an unincorporated association does not fall within the realm of private law remedies otherwise awardable in cases of contract breach, tort, and 15 statutory breach or in restitution, which are available when enforcing rights in such association. It is has not been shown, for instance, that the Applicant's basic rights to fairness or natural justice, were breached.

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In conclusion, I noted with amusement the skillful and compelling submission by learned counsel, in which counsel appears to elevate the standards of the impugned election to that conducted at a national election, by applying the substantiality test. For instance, on the allegation of ballot stuffing, learned counsel submitted that ballot stuffing affected the outcome of the election in a substantial manner. It is clear that learned counsel, with respect, didn't place the Applicant's case within the 25 restricted category where this court would have jurisdiction. On the contrary, learned Counsel treated the matter as if it were an election

Herto Que

- petition, complete with affidavits, most of which I must say, were lodged $\mathsf{S}$ contrary to the provisions of Order 19 rule 3 of the CPR, as the Applicant relied on statements of other witnesses, yet the matter is not of an interlocutory nature. Certainly this is not an election petition regulated by specific laws where other affidavits would be permitted. I also note learned counsel's attempt to confuse the application which appears omnibus. He $10$ challenges the amendment of the Constitution and at the same time challenges the election outcome. Learned counsel is presumed to know that national elections in Uganda have a well-built constitutional and statutory framework within which they are organized, conducted, and 15 challenged. The legal architecture is robust unlike the present matter where there is no law pursuant to which an election petition could be envisaged. I think, with respect, this court would be groping in the dark if it purported to sit as an election court, for the purposes of a private election where the constitution of the association or rules do not provide for the $20$ kind of redress and in the absence of a national legal framework for that purpose. Even if the internal rules of the association were elaborate and thus self-contained, jurisdiction of court must be conferred by law, and cannot be inferred. - Given the resolution above, the application is struck out for being 25 misconceived. It has not been fashioned in a frame which fits within this court's limited jurisdiction. In the circumstances, it is not necessary to

Hutsdun

consider the rest of the issues. I wish, however, to observe in the passing $\mathsf{S}$ that, had the case been of the nature falling within this court's limited jurisdiction, lodgment of a Plaint would have been an appropriate procedure, purely seeking a declaratory order and other reliefs, if any, such as injunction, and or damages, within the purview of Order 3 rule 9 $10$ of the CPR.

On the issue of costs, given the need to foster harmony within the association of the market vendors, since it is apparent that the outcome of the market vendors election created rival camps, with one group supporting the applicant, and the other supporting the 1st and the 5th 15 Respondents, I order that, as between the Applicant and the 1st and 5th Respondents, each party bears its own costs. The Applicant shall however pay costs of the proceedings to the 2nd, 3rd and the 4th Respondents only, as they were wrongly dragged in these proceedings when they did not 20 participate in the impunged election. There will however be no costs for the 6th Respondent since he neither filed any response nor appeared in the proceedings.

## Obiter

This Court is cognizant of the fact that the Markets Act Cap 94 has now $25$ been repealed by the Markets Act, 2023 which was assented to by the His Excellency the President of the Republic of Uganda, Yoweri Kaguta

Harolin

Museveni on $22^{nd}$ May, 2023. The new law has had no place in this $\mathsf{S}$ proceedings, given its prospective application. The Markets Act, 2023 appear to usher in significant changes in as far as management and leadership of Gulu main Market will be regulated, going forward, especially three years from now. The changes ushered by the law, hopefully, will $10$ address once and for all, market leadership issues, as market leadership appears highly streamlined, and with more participation of the City Council. In light of the new legal dispensation, it appears the constitution regulating the relations of the members of Gulu main Market Vendors Association, if it will still be relevant, will require review, to be in sync with the provisions of the Markets Act, 2023, but of course in consultation with 15 Gulu City Council, its legal advisors, and all key stakeholders.

Delivered, dated and signed in Court this 6th day of July, 2023.

George Okello George Okello **JUDGE HIGH COURT**

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## $\mathsf{S}$ 11:43am

06th July, 2023

## **Attendance**

Ms. Grace Avola, Court Clerk.

Mr. Doii Patrick, Counsel for the 1st to 5th Respondents. $10$ Mr. Julius Ojok, Counsel for the Applicant. The Applicant in Court. The 1st, 2nd, 4th and the 5th Respondents in Court. The 3rd and 6th Respondents absent.

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Mr. Doii Patrick: The matter is for Ruling. We are ready to receive it.

Mr. Ojok Julius: The matter is coming up for Ruling. We are ready to receive it if it is ready.

## 20

Ruling delivered in open court. Court:

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George Okello **JUDGE HIGH COURT**