Uganda Peoples Congress & Another v Kakonge (Civil Application 19 of 2020) [2023] UGSC 72 (13 October 2023)

### THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT KAMPALA

# [CORAM: OWINY-DOLLO, C. J; MWONDHA; TIBATEMWA-EKIRIKUBINZA; TUHAISE; CHIBITA, JJSC].

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### CIVIL APPLICATION No.19 OF 2020

#### **BETWEEN**

#### 1. UGANDA PEOPLES CONGRESS 2. THE UPC ELECTORAL COMMISSION **::::::::::::: APPLICANTS** 15

### AND

### PROF. EDWARD KAKONGE ::::::::::::::::::::::::::::::::::::

[An appeal from the decision of the Court of Appeal at Kampala before: 20 (Hon. Justices: Musoke; Madrama and Mulyagonja, JJA) in Civil Application No.0019 of 2016 dated 29<sup>th</sup> July 2020.

#### Representation

Neither the Applicants nor their Counsel were present in Court. 25 The Respondent was represented by Counsel Busingye Fred.

#### **RULING OF COURT.**

# **Introduction**

This is an application seeking Leave of Court to appeal against the 30 interlocutory orders of the Court of Appeal.

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The Applicant political party (UPC) asserts that although they had to $\mathsf{S}$ first lodge the application before the Court of Appeal (COA), exceptional circumstances exist that warrant the filing and hearing of the matter before the Supreme Court.

#### **Facts** 10

The facts of the case are that in 2015, Joseph Bbosa (who was the Vice President of the political party at the time), Prof. Kakonge (Respondent) and Otto Amiza filed an application for Judicial Review in the High Court against the 1<sup>st</sup> and 2<sup>nd</sup> Applicants (UPC and its Electoral Commission respectively).

The application for Judicial Review challenged the election of James Akena as the Party's President-elect as being illegal and the election being full of malpractices. The High Court Judge (Nyanzi. J) heard the matter and held in favour of Joseph Bbosa. The Judge declared the election of James Akena void and illegal for violating the UPC Constitution. The Judge consequently issued an order of certiorari against the 1<sup>st</sup> Applicant.

The 1<sup>st</sup> and 2<sup>nd</sup> Applicants were dissatisfied with Nyanzi J's decision and appealed to the Court of Appeal vide Civil Appeal No. 20 25 of 2016. They also lodged a substantive application for stay of execution of the High Court orders. Furthermore, the Applicants applied for an interim order of stay which was granted.

At about the time of lodging the said applications, Joseph Bbosa passed away and Prof. Kakonge (Respondent) applied to be a 30 substitute for him which application was granted.

After hearing of the application for substitution of the deceased party to the suit, the Court of Appeal maintained the interim orders it had previously granted and also stayed the applicant's delegates' Conference. Furthermore, the Court stopped the Applicants from operating the UPC Bank accounts until final determination of the pending appeal (No. 20 of 2016).

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Being dissatisfied with the Court of Appeal Ruling, UPC and its $\mathsf{S}$ Electoral Commission filed an appeal to the Supreme Court without first seeking the leave of the Court of Appeal. The Applicants argued that there existed exceptional circumstances that warranted this Court to hear the application without first obtaining the leave of the Court of Appeal. The circumstances included among others that: 10 (i) the road map for 2021 National Elections was already out and all members of UPC who expressed interest in elective positions at all levels on the party ticket were supposed to pay nomination fees into the UPC bank account which had a bearing on the Applicants regarding the 2021 general elections. 15

(ii)All payments including donor funds were made through the UPC bank account and the effect of the Court of Appeal orders were to stifle the operations of the Applicants, which deprived it of its constitutional right to participate in the democratic process of the country. That if they are sent back to the Court of Appeal, the process

would cause further delay and yet time is of the essence.

The Applicants further averred that there were serious grounds in the intended appeal which merited judicial consideration. These grounds were: (i) whether admission from the bar can be a basis for court to make a decision; and (ii) whether court can grant orders not sought for in an application.

On the other hand, the Respondent's counsel stated in his affidavit in reply that the substantive application in the Court of Appeal was never fixed or called for hearing. However, by consent of parties, the said application was disposed of through a temporary order which

30 the Respondent (Kakonge) alleged was subsequently abused by UPC and its Electoral Commission by going ahead to convene the delegates Conference.

This led to the filing of contempt of court proceedings in the Court of Appeal which application was dismissed for want of prosecution. On 35 22/12/2021, the Respondent filed Civil Appeal No. 34 of 2021 in this Court challenging the dismissal of the application for contempt of Court.

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Regarding the present application, the Respondent stated that the $\mathsf{S}$ judgment in the main appeal from which the substantive application and the interim order are hinged was delivered by the Court of Appeal on 7<sup>th</sup> September, 2020, which held that the election of Akena was null and void. Furthermore, the Court held that the application before Court was an abuse of the Court process and redundant. 10

The Respondent further averred that the present application was a waste of Court's time because it is in essence an appeal against an interlocutory order and that no exceptional circumstances existed for it to be filed in this Court.

#### **Applicants' submissions** 15

In a prehearing session conducted on 25th March 2022, the Court directed parties to file written submissions. The Applicants did not comply with the court's directive. It is only the Respondent who filed submissions.

This Court will, in resolution of the application, consider only the 20 following documents which are available on the court record: the Applicants' Notice of Motion together with the supporting affidavit, the Respondent's affidavit in reply as well as the filed submissions.

# **Respondent's submissions**

Before submitting on the merits of the application, counsel for the 25 Respondent raised the following preliminary points of law:

(1) That the Application is nonexistent in law, incompetent, an abuse of court process and a sham;

- (2) That the application is moot and has been overtaken by events. - On the first point, the Respondent's counsel submitted that the 30 application is incompetent as it was lodged without the leave from the Court of Appeal. In support of this submission, counsel relied on Section 6 (1) of the Judicature Act which provides that:

# An appeal shall lie as of right to the Supreme Court where the Court of Appeal confirms, varies or reverses a Judgment or Order, including an Interlocutory Order, given by the High

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# Court in the exercise of its original jurisdiction and either confirmed, varied or reversed by the Court of Appeal.

Counsel submitted that, from the above provision, it is clear **Section 6(1) (supra)** excludes appeals from interlocutory orders passed by the Court of Appeal to the Supreme Court.

Furthermore, counsel submitted that Rule 39 (2) of the Rules of this 10 Court provides for leave to appeal in civil matters as follows:

Where formerly an appeal lay from the High Court to the court with leave of either the High Court or the court, the same rules shall apply to appeals from the Court of Appeal to the court-

(a) where an appeal lies with leave of the Court of Appeal, application for the leave shall be made informally at the time when the decision against which it is desired to appeal is given; or failing that application or if the court so orders, by notice of motion within fourteen days after the decision; and

(b) if the Court of Appeal refuses to grant leave, or where an appeal otherwise lies with leave of the court, application for the leave shall be lodged by Notice of Motion within fourteen (14) days after the decision of the Court of Appeal refusing leave or, as the case may be, within fourteen (14) days after the decision against which it is desired to appeal.

In light of the above provision, counsel submitted that the application for leave to appeal was supposed to have been filed in the Court of Appeal first before filing it in the Supreme Court. To buttress this 30 argument, counsel relied on the case of Dr. Kasirivu Atwooki and Others v. Grace Bamurangye Bororoza and others, SC Civil Application No. 02 of 2010 where this Court re-stated its opinion in Uganda National Examinations Board vs. Mpora General Contractors (Civil Application No. 19 of 2004) and Beatrice 35 Kobusingye vs. Fiona Nyakana & Another, (SC Civil Appeal No. 5 of 2004) that:

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... there is no right of appeal to this Court originating from interlocutory $\mathsf{S}$ orders of the Court of Appeal which orders are incidental to the appeal but not resulting from the final determination of the appeal itself...

*Neither Section 78 nor Article 132 of the Constitution confer any right* of appeal to the Respondents nor does either confer any jurisdiction on this Court to entertain an appeal arising from the decision of the Court of Appeal in interlocutory matters such as the ruling in the Court of Appeal in Civil Application No. 85 of 2009 between the parties.

*Interlocutory applications are generally an exercise intended to help* that Court to do house clearing. If appeals were allowed to come to this

*Court from interlocutory rulings of the Court of Appeal, this Court would* 15 *be swamped with wholly unnecessary multiplicity of appeals.*

Indeed, the Court of Appeal itself would be clogged with many pending appeals which could not be heard and decided because they would await decision on such interlocutory appeals to this Court ... Delays *would affect expeditious disposal of appeals in the Court of Appeal.*

Basing on the above authorities and provisions of law cited, counsel submitted that the application before court was incompetent and ought to be dismissed.

Regarding the Applicants averment in paragraph 13 of the Affidavit in support alleging that they have a good cause for coming straight 25 to the Supreme Court on grounds of exceptional circumstances, counsel submitted that the exceptional circumstances relied upon are not valid as they are a violation of Section 6 (1) of the Judicature Act and Rule 39 (2) of the Rules of this Court.

Counsel further submitted that, Civil Appeal Number 20 of 2016 was disposed of on 7<sup>th</sup> September, 2020 and Hon. James Michael Akena's election as UPC President was declared null and void. Therefore, the argument that time was of essence no longer stands and falls outside the ambit of exceptional circumstances.

Further still, counsel submitted that the application no longer has any bearing on the 2021 general elections because the said election

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- has already been conducted. In tandem, counsel also submitted that $\mathsf{S}$ this Court cannot be made to take part in facilitating the payment of statutory payments into accounts run by the cabinet of Hon. James Michael Akena who was declared by the Court of Appeal to have been illegally elected. - In relation to the above, counsel submitted that the Orders being 10 contested by the Applicants and the basis upon which the leave of court was sought have since lapsed. Counsel explained that the orders which stayed the Delegates Conference slated for 1st August, 2020 and the operation of the 1st Applicant's bank accounts were - meant to last until the determination of Civil Appeal No. 20 of 2016. 15 Counsel submitted that since the said civil appeal was determined on 7<sup>th</sup> September 2020, it meant that the said Orders lapsed on that date. That in light of the foregoing, the intended appeal does not raise any serious issues and there are no exceptional circumstances to - justify the filing of the application straight to this Court. 20

On the second preliminary point of law, counsel submitted that the application is moot and has been overtaken by events.

Counsel submitted that since the appeal has been determined and the Applicants have not appealed against the Court of Appeal decision in Civil Appeal NO. 20 of 2016, the application is moot, 25 superfluous and has been overtaken by events. Therefore, this Court should not waste its valuable time in deciding cases or issue Orders for academic purposes.

On the premise of the above preliminary points of law, counsel prayed that the application be dismissed.

# Submissions on the merits of the application

In response to the Applicant's averment in Paragraph 14 (a) of the Affidavit in support, where the Applicant alleged that the Learned Justices of Appeal erred in law when they made their decision and orders based on submissions from the Bar without any formal application or evidence before the Court, the Respondent's counsel submitted that there were no submissions from the bar.

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$h-1-l$ Counsel argued that the orders in Miscellaneous Application No.19 $\mathsf{S}$ of 2016 were issued by the Court of Appeal after the consent of the Parties.

Furthermore, counsel submitted that the mere fact that Civil Appeal No. 20 of 2016 was disposed of on 7th September, 2020 declaring the Presidency of Hon. Akena as illegal, null and void makes the present 10 Application an abuse of court process and redundant because the orders the Applicants seek to appeal against expired on 7th September, 2020 when the Court of Appeal delivered its decision. Consequently, the Notice of Appeal also became redundant and superfluous. 15

**Prayers**

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Counsel for the Respondent prayed that this Court dismisses the application with costs.

## **Court's Consideration**

I will first deal with the preliminary objection raised by counsel for 20 the Respondent on the competence of the application before Court as it has the potential to dispose of the entire dispute.

The crux of the Respondent's submission was that the appellant did not have the right to:

- Lodge in this Court the application to seek leave; and $(i)$ - appeal to this Court against an interlocutory matter. $(ii)$

In respect of applications seeking the leave of Court to take a legal step. **Rule 41** of the **Rules of this Court** provides that:

(1) Where an application may be made either to the court or to the Court of Appeal, it shall be made to the Court of Appeal first.

$(2)$ Notwithstanding sub rule $(1)$ of this rule, in any civil or criminal matter, the court may, in its discretion, on

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application or of its own motion, give leave to appeal and $\mathsf{S}$ make any consequential order to extend the time for the doing of any act, as the justice of the case requires, or entertain an application under rule $6(2)(b)$ of these Rules to safeguard the right of appeal, notwithstanding the fact that no application has first been made to the Court of Appeal. 10 (Court's emphasis).

A reading of the above provision reveals that an application seeking leave of the Court must first be filed in the Court of Appeal. However, Rule 41 (2) provides for exceptions when the Court can hear an application which has not been filed in the lower court first.

In Attorney General v Kwizera and Electoral Commission v Kwizera (Consolidated Constitutional Application No. 1 of 2020) [2020] UGSC 8 (4 June 2020), this Court heard two applications for stay of execution that were not first filed in the Constitutional Court as required by **Rule 41(1)** of the Rules of this Court. The Court stated that **Rule 41(2)** allows for exceptions to the general rule, but that the applicant must have been aware of the general rule and had good cause for coming straight to the Supreme Court.

The Applicant in the Kwizera case argued that the following circumstances would bring the application within the ambit of Rule 25 $41(2)$ :

- The fact that the road map for the 2021 elections $(i)$ was already out and the application had a bearing on the 2021 general elections. - If the parties were sent back to the Constitutional $(ii)$ Court, that process would cause further delay. - The application raised peculiar constitutional (iii) matters which concerned the rights of the electorate and their representatives in Parliament which called for expeditious hearing by the Court.

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## (iv) Time in this case was of the essence.

The court accepted the said four factors as warranting exemption from the operation of **Rule 41(1)**. The imminent nature of that year's $\mathbf{R}$ elections; the threat of further delay by first returning to the lower court; constitutional concerns raised affecting the electorate and their representatives; and the fact that time was of essence resulted in an application directly filed in the Supreme Court being heard by the Court.

The question to be answered is: Can it be said that there are exceptional circumstances in the application before court?

I note that just like in the **Kwizera case**, this application had a 15 bearing on the electoral process i.e. the 2021 Presidential and Parliamentary elections.

I also note that the interim order issued by the Court of Appeal thwarted the 1st Applicants from accessing its bank accounts which were essential in funding the Political party's elections. At that point, 20 time was of essence because the electioneering period was already underway, and the Applicants had only so much time to produce candidates for the 2021 elections. If these facts still stood, there is a likelihood that this Court would have allowed the application without

- the need of first lodging the same in the lower court. However, the 25 status of this case has since changed and rendered the would be exceptional circumstances moot. It is on record that the interim order which prohibited the 1st Applicant from accessing the bank accounts and stayed the party's delegates conference lapsed upon the delivery - of the Court of Appeal's judgment on 7 September 2020 in Civil 30 Appeal Number 20 of 2016.

From the foregoing discussion, we find that the Application no longer bears exceptional circumstances as a basis for it to be filed in this Court.

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We now move on to discuss the second preliminary point of law raised $\mathsf{S}$ by the Respondent - that there is no right of appeal to this Court from the interlocutory orders of the Court of Appeal.

The jurisdiction of this Court is conferred by the Constitution and statutory law. This Court has in several cases stated that the right of appeal is a creature of statute and must be given expressly by statute. 10 There is nothing such as an inherent right of appeal. [See: Lukwago Erias v KCCA (SCCA No.06 of 2014); Attorney General v Shah(No. 4 of 1971 EACA 50) and Baku Raphael v Attorney General (SCCA No. 1 of 2005).

Under the **Constitution**, the jurisdiction of this Court is conferred 15 by **Article 132 (2)** and **(3)** which states that:

> (2) An Appeal shall lie to the Supreme Court from such decisions of the Court of Appeal as may be prescribed by law.

- (3) Any party aggrieved by a decision of the Court of Appeal 20 sitting as a constitutional court is entitled to appeal to the Supreme Court against the decision and accordingly an appeal shall lie to the Supreme Court under clause (2) of this article. - Under statutory law, Section 6 (1) of the Judicature Act provides 25 for the right of appeal to the Supreme Court without leave and **Section 6 (2)** of the **Act** provides for the right of appeal with leave.

Section 6 $(1)$ stipulates that:

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An appeal shall lie as of right to the Supreme Court where the Court of Appeal confirms, varies or reverses a judgment or order, including an interlocutory order, given by the High Court in the exercise of its original

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## jurisdiction and either confirmed, varied or reversed by **the Court of Appeal.** (My emphasis)

Section 6 $(2)$ stipulates that:

Where an appeal emanates from a judgment or order of a chief magistrate or a magistrate grade I in the exercise of his or her original jurisdiction, but not including an interlocutory matter, a party aggrieved may lodge a third appeal to the Supreme Court on the certificate of the Court of Appeal that the appeal concerns a matter of law of great public or general importance, or if the Supreme Court considers, in its overall duty to see that justice is done, that the appeal should be heard.

It is clear from the above provisions of law that, there is no right of appeal to the Supreme Court from interlocutory orders which are incidental to the appeal and do not result from the final determination of the appeal itself.

This Court observed in Sanyu Lwanga Musoke v Sam Galiwango (SCCA No. 48 of 1995) that:

"... the issue of appealing against every ruling that is made in the *course of the trial has come up before this court on several occasions* 25 and decisions on it have been made to the effect that it is not necessary to file several appeals, one against the interlocutory order made in course of hearing and another, against the final decision. To hold otherwise might lead to multiplicity of appeals upon incidental orders made in the course of the hearing when such matters can conveniently 30 *be considered in an appeal from the final decision"* (My emphasis)

Furthermore, in the case of **Uganda National Examinations Board** v Mparo General Contractors (Civil Application No.19 of 2004), it was clearly stated that:

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"There is no right of appeal to this Court originating from interlocutory orders of the Court of Appeal which orders are incidental to the appeal but not resulting from the final determination of the appeal itself."

It can therefore be concluded from the above jurisprudence that the Court of Appeal's decision in interlocutory matters is final and not subject to appeal.

The rationale of the above position is to avoid multiplicity of unnecessary appeals to this Court and delays in disposing of appeals which have to first await the decision on the interlocutory matters.

## **Conclusion and Orders**

- Following our findings above, we hold that the Respondent's 15 preliminary objections succeed. Consequently, the leave sought by the Applicants is declined and the application is hereby dismissed with costs to the Respondent. - $13<sup>th</sup>$ day of Oto Ser 2023. Dated this..... 20

$\overbrace{\cdots\cdots\cdots\cdots\cdots\cdots\cdots}$ HON. JUSTICE ALFONSE OWINY-DOLLO,

CHIEF JUSTICE. 25

> **.....................................** HON. JUSTICE MWONDHA,

JUSTICE OF THE SUPREME COURT. 30

HON. JUSTICE PROF. TIBATEMWA' EKIRIKUBINZA, JUSTICE OF THE SUPREME COURT.

HON. JUSTICE PERCY TUHNSE' JUSTICE OF THE SUPRTME COURT.

15 HON. JUSTICE MIKE CHIBITA, JUSTICE OF THE SUPREME COURT.