Tusiime Bamanyindo v Kaali Ali Fadhil and Attorney General (Miscellaneous Application 403 of 2023) [2024] UGHCCD 109 (3 July 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION) MISCELLANEOUS APPLICATION NO. 0403 OF 2023 (ARISING FROM MISC. CAUSE NO. 0148 OF 2023)**

## **TUSIIME BAMANYINDO PATRICK ::::::::::::::::::::::::::::::::::::::::: APPLICANT VERSUS**

**1. KAALI ALI FADHIL**

**2. ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS**

## **BEFORE: HON. JUSTICE BONIFACE WAMALA**

#### **RULING**

#### **Introduction**

[1] This Application was brought by Chamber Summons under Section 33 of the Judicature Act, Section 98 of the Civil Procedure Act and Order 41 rules 1, 2 and 9 of the CPR seeking for orders that;

a) A temporary injunction doth issue restraining the Respondents, their agents or those from whom they derive authority from implementing and acting on the contents of HRM WT Ref No: HRM WT Ref: 40/ 131/270 that declared the Applicant a deserter pending the hearing and determination of the main cause.

b) The Respondents be restrained from subjecting the Applicant to any police disciplinary court proceedings, stoppage of salary payments, penalty or suspension pending determination of the main cause.

c) The costs of the application be provided for.

[2] The application is supported by an affidavit sworn by **Tusiime Bamanyindo Patrick**, the Applicant, in which he stated that he is a police officer in active service at the rank of Assistant Superintendent of Police attached to Field Force Unit in the Uganda Police Force since 2015. On 17th March 2023, he was informed by his work colleagues that his name had been placed on a list of police officers pending declaration as deserter vide Wireless Transmission(WT) Ref: No. ADMN/33/230/01 dated 15th March 2023 and was requested to report to his unit before 22nd March 2023. He stated that he was surprised since he had been available at the unit and was interacting normally with his colleagues and superiors. He followed up the matter with his commander, the 1st Respondent, who assured him that the error would be cleared. However, without any justification or due process, he was surprised when he was declared a deserter from police force vide HRM WT Ref: 40/131/270 dated 23rd March 2023. He further stated that on 6th April 2023, through the 1st Respondent, he wrote a letter to the Inspector General of Police (IGP) requesting to be reinstated and the erroneous declaration as a deserter be corrected but his letter was never forwarded to the IGP.

[3] The Applicant averred that he has missed several opportunities for promotion on three different occasions due to violation of his rights to a fair hearing and stands an imminent risk of losing his employment benefits and a permanent taint on his distinguished service to the Uganda Police Force (UPF) as a result of being declared a deserter. He also averred that the continued subsistence of the deserter message has put and continues to occasion threats of both criminal and police disciplinary court proceedings. He concluded that the 1st Respondent being the officer with direct command and responsibility to correct the error failed to act on the Applicant's complaints and that the 2nd Respondent is vicariously liable for the acts and omissions of its officers.

[4] The Respondents did not file any reply despite sufficient evidence of service of the application and the notice of hearing.

## **Representation and Hearing**

[5] At the hearing, the Applicant was represented by **Mr. Emmanuel Oriokot** from M/s IBC Advocates. Owing to the unexplained absence of the Respondents, the Court allowed the Applicant to proceed with the hearing of the application ex parte under Order 9 rule 10 of the CPR and Order 9 rule 20(1)(a) of the CPR. Counsel for the Applicant made and filed their submissions which I have considered in the determination of the matter before the Court.

## **Issue for Determination by the Court**

[6] One issue is up for determination by the Court, namely; *Whether the application discloses sufficient grounds for grant of an order of a temporary injunction?*

## **Submissions**

[7] Counsel for the Applicant relied on the case of *Kiyimba Kaggwa v Hajji Katende [1986] HCB 43* for the position of law on the conditions for grant of an order of a temporary injunction, namely, that there is a prima facie case with a probability of success; the applicant is likely to suffer irreparable damage which would not be adequately compensated in damages; and in case the court is in doubt, the balance of convenience lies with the applicant.

[8] On the ground of existence of a prima facie case with a probability of success, Counsel submitted that the Applicant filed Miscellaneous Cause No. 148 of 2023 that is yet to be determined by this Honorable Court and which presents serious allegations of violation of the Applicant's human rights specifically the right to a fair hearing which is non-derogable. On the ground of suffering irreparable damage that would not be adequately compensated by an award of damages if the temporary injunction is not granted, Counsel for the Applicant submitted that the Applicant put in his best efforts to seek intervention and correction of the wrongful declaration of himself as a deserter but was ignored and has missed several opportunities for promotion on three different occasions and risks losing his employment. The Applicant has also averred that there is a credible threat to both criminal prosecution and police disciplinary court proceedings which can be laid against him; which will be impossible of adequate compensation by way of damages.

[9] Regarding the ground on the balance of convenience, Counsel submitted that the balance of convenience lies in favour of the Applicant; given that the Respondents shall suffer no injury if the injunction is granted as they will merely be stopped from conducting any detrimental activities against the Applicant based on the declaration that he is a deserter from the police force like stopping his salary and subjecting him disciplinary proceedings and imposing disciplinary and other related sanctions. Counsel urged the Court to find that the balance of convenience is in favor of the Applicant. Counsel concluded that the Applicant has satisfied the requirements for grant of a temporary injunction pending determination of the main suit and prayed that this issue is answered in the affirmative.

### **Determination by the Court**

[10] The position of the law is that grant of a temporary injunction is an exercise of judicial discretion for purposes of maintaining the status quo until the questions to be investigated in the main suit are tried on the merits and disposed of finally. The principles for grant of an order of a temporary injunction were laid down in the case of *Kiyimba Kaggwa v Hajji Abdul Nasser Katende [1985] HCB 43*, citing with approval the decision in *Giella v Cassman Brown & Co. Ltd [1973] 1 EA 358*, as follows;

"*The conditions for the grant of an interlocutory injunction are … first, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience."*

[11] In law, a prima facie case with a probability of success is no more than that the court must be satisfied that the claim is not frivolous or vexatious. In other words, it must be shown that there are serious questions to be tried. In *Robert Kavuma v Hotel International SCCA No. 8 of 1990,* the court stated that the applicant is required at this stage of trial to show a prima facie case and a probability of success but not success. The applicant has to satisfy the court that there is merit in the case not that he/she will succeed. In this case, the grounds in the main cause raise allegations of violation of the Applicant's human rights that would require investigation by the court on the merits. In the circumstances, the Applicant has satisfied the Court that a prima facie exits with a likelihood of success that is sufficient to persuade the Court to grant an order of a temporary injunction.

[12] Regarding the question as to whether the applicant would suffer irreparable injury or damage by the refusal to grant the application, in law, irreparable injury means that the injury or damage must be substantial or a material one that cannot be adequately atoned for in damages. See: *Tonny Wasswa v Joseph Kakooza [1987] HCB 79*. In the present case, it was argued by Counsel for the Applicant that there is a credible threat to the Applicant of both criminal prosecution and police disciplinary court proceedings which may be laid against him and whose consequences would be impossible of adequate compensation. It was shown by the Applicant that the record that he deserted the police force still stands and unless restrained, the police authority may act on it to the Applicant's detriment. Although there is a possibility of monetary compensation to the Applicant if the apprehended detriment occurred, it is clear to me that such compensation would only attempt to replace the Applicant to his original position in as far as money can do, but would not be able to adequately do so. Where such detriment is avoidable, it is only fair and just that the conduct be restrained. I therefore find this condition satisfied by the Applicant.

[13] On the balance of convenience, the requirement is that the applicant has to show that failure to grant the order of injunction will be to his/her greater detriment than it would be to the Respondent if the injunction was granted. The balance of convenience lies more on the one who will suffer more if the respondent is not restrained in the activities complained of in the main suit. In the present case, I find that the balance of convenience would tilt more in favour of the Applicant who is likely to suffer detriment if the apprehended threat is not restrained by the grant of the order of a temporary injunction as claimed.

[14] In light of the above findings, the Applicant has satisfied the Court on a balance of probabilities that sufficient grounds exist as to warrant the grant of an order for a temporary injunction in this matter. The application accordingly succeeds and is allowed with orders that;

a) An order of a temporary injunction doth issue restraining the Respondents, their agents or servants from implementing and acting on the contents of the Wireless Transmission Communication that declared the Applicant a deserter; pending the hearing and determination of the main cause.

b) An order of a temporary injunction doth issue restraining the Respondents, their agents or servants from subjecting the Applicant to any police disciplinary court proceedings, stoppage of salary payments, penalty or suspension based on the above said Wireless Transmission Communication; pending the hearing and determination of the main cause. c) The costs of the application shall abide the outcome of the main cause.

It is so ordered.

*Dated, signed and delivered by email this 3rd day of July, 2024.*

**Boniface Wamala JUDGE**