Uganda Muslim Supreme Council v Babirye and 2 Others (Miscellaneous Application 309 of 2023) [2023] UGHCCD 362 (22 December 2023)

Full Case Text

## THE REPUBLIC OF UGANDA

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### IN THE HIGH COURT OF UGANDA

# **MISCELLANEOUS APPLICATION NO.309 OF 2023**

# (Arising from Company Cause No.002 of 2023)

$\mathsf{S}$

UGANDA MUSLIM SUPREME COUNCIL::::::::::::::::::::::::::::::::::::

### **VERSUS**

#### 1. BABIRYE YUDAYA 10

### 2. BURHAN NAMANYA

3. HUSSEIN SSIMBWA::::::::::::::::::::::::::::::::::::

Before: Lady Justice Alexandra Nkonge Rugadya.

### Ruling.

This application brought by motion under the provisions of **Section 33 of the** Judicature Act, Cap.13, Sections 82 & 98 of the Civil Procedure Act, Cap. 71 and Order 52 rules 1, 2, & 3 of the Civil Procedure Rules SI 71-1, seeks the following:

- 1. The orders under the judgment of court delivered on $12^{th}$ 20 December, 2023 in Company Cause No.002 of 2023 be reviewed, varied and set aside; - 2. An order quashing all the proceedings and resolutions passed on 16th & 17th December 2023 at Ggangu Muslim Primary School pursuant to the orders granted by court in Company Cause 002 of 2023;

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# 3. Costs of the application be provided for.

## Grounds of the application:

The grounds upon which this application is premised are contained in the affidavit in support thereof, the details of which are on the court record.

When this matter came up for hearing on 21st December, 2023, counsel for $\mathsf{S}$ the applicant made a prayer that this court issues an order restraining the respondents from further execution of the orders in **Company Cause No.002** of 2023; and for court to suspend the execution and implementation of the resolutions passed on 16th & 17th December 2023 at Ggangu Muslim Primary

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From the record, the application was filed in Jinja High Court circuit on 19th December, 2023. An exparte application was made and heard vide MA No. 306 of 2023 by court presided over by Dr. Winfred N. Nabisinde on 18th December, 2019.

An interim order was issued preventing further execution and implementation 15 of the orders in Company Cause No.002 of 2023. The order was to have effect until 22nd December, 2023.

By that order neither MA No. 306 of 2023 and MA No. 307 of 2023 (main **application)** and present application were all placed before the Principal Judge for further management.

However, neither MA No. 306 of 2023 and MA No. 307 of 2023 which arise out of an appeal pending before the Court of Appeal had at the time of hearing this matter been served onto the intended respondents. According to the counsel for the respondents, they only had instructions to represent the respondents in regard to this application for review, and not the other 2 applications.

Regarding the present application, counsel appearing for the respondents informed court that the respondents who are residents of Jinja were only served yesterday, 20th December 2023 for today's hearing through the firm of

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M/s Mugisa Namutale & Co. Advocates and that they intended to file a reply to the application for review.

Counsel for the respondent challenged the powers of the Principal Judge to hear this application. His argument was that only the judge who made the orders is supposed to hear and determine an application for review. Accordingly, that this application was intended to usurp the powers of the General Assembly which made the resolutions that took immediate effect.

On the question of jurisdiction by this court, counsel for the applicants however cited sections 98 of the CPA and 33 of the Judicature Act, as well as section 64(e) of the CPA. They also relied on the case of Attorney

10 General & Anor vs James Mark Kamoga SCCA No.8 of 2004.

For the respondents however, a reference was made to a later case by the same court: NSSF vs ALCON International Ltd SCCA No. 18 of 2009 the gist of which is that where there is a specific provision a general law is not applicable.

With all due respect to the submissions made by counsel for the applicant, section 82 of the CPA cannot operate independently of order 46 of the CPR. As pointed out by his colleague counsel, inherent jurisdiction cannot be invoked where there is an express statutory provision dealing with the matter.

I could not agree more. 20

$\mathsf{S}$

Both sections section 98 of the CPA and 33 of the Judicature Act, Cap. 13 would ordinarily apply where the law does not expressly provide for the procedure. (Ref: Oluka Matia vs Changa Moses HCCA No. No. 0090 of 2009).

The applicable rules of procedure in this instance are clearly spelt out in 25 order 46 rule 2 of the CPR, under which an application for review must be made to the judge who made the order.

There are exceptions however made under those rules. Order 46 rule 4 stipulates that:

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Where the judge who passed the decree or made the order, a review of which is applied for, continues attached to the court at the time when the application for review is presented and is not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, the judge shall hear the application, and no other judge shall hear the application. (emphasis added).

Within the spirit of that provision, the term 'other cause' would not include a situation as in the present case, where the judge who made the decision intended for review is taking off days for her annual leave.

This court has also noted that the resolutions made by the General Assembly which were the basis of the prayers sought in the application were only mentioned in the affidavit in support of the application for review.

These were admittedly picked from the social media broadcasts. As rightly submitted by counsel for the respondents, the members of the General 15 Assembly were not made party to this application. Nor could it therefore be stated with certainty that the respondents against whom the prayers were sought in this application had been party to the General Assembly resolutions.

For those reasons therefore, this court declines to delve into the merits of this 20 application the determination of which at this stage would deny the respondents an opportunity to file their response.

Be that as it may, Section 64(e) of the Civil Procedure Act as cited by counsel for the applicants vests this court with authority to make interlocutory orders as may appear to be just and convenient.

Although therefore this court lacks jurisdiction to hear the review application based on the provisions under order 46 rules (2) and (4) of the CPR, it is not barred from proceeding under section 64(e) of the CPA to make interlocutory orders as may appear to be just and convenient.

Accordingly, the following orders are made: 30

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7. LIA No. 3O9 of 2O23 ts referred back, togcthcr with .llIA No, 306 of 2023 and MA No. 3O7 oJ 2O23 to thc judgc who made thc orders sought for rcview;

- 5 2. Furthe r cxe cution and further implcmcntation of thc rcsolutions of the General Assembly madc on 16ft and 17th Dcccmbcr,2023 in Compang Cause No. OO2 of 2O23 shal1 await thc hcaring and dctermination of this application by the same judgc who madc thc ordcrs. - 10 3. Costs shall abidc the outcomc of MA No. 3O9 of 2023.

Alexandra Nkong e Rug adga (Acting Principal Judge) l.tu\*d 01^ I

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15 22"d Decernber 2023.