Uganda Peoples Congress & Another v Kakonge (Civil Application 22 of 2020) [2020] UGSC 46 (30 September 2020)

# THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA

# AT KAMPALA

CIVIL APPLICATION NO. 22 OF 2020

(ARISING FROM CIVIL APPLICATION NO. 21 OF 2020)

(ARISING FROM CIVIL APPLICATION NO. 19 OF 2020)

(ARISING FROM CIVIL APPEAL NO. 19 OF 2016)

(Arising from High Court Misc. Cause No. 0086 of 2015)

#### **BETWEEN**

1. UGANDA PEOPLES CONGRESS

2. THE UPC ELECTORAL COMMISSION ::::::::::::::APPLICANTS

#### **VERSUS**

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

$\mathsf{S}$

#### RULING OF MIKE J. CHIBITA; JSC

This is an application brought under rules $2(2)$ , $6(2)(b)$ , $42$ , $43(1)$ , 50 and 51 of the Judicature (Supreme Court Rules) Directions, seeking for the following orders:

- An interim order staying execution and/or effecting part of $(i)$ the decision and orders of the Court of Appeal of Uganda at Kampala, in Miscellaneous Application No. 19 of **2016**, delivered on the 29<sup>th</sup> day of July 2020, until the final determination of the Applicants' substantive application for stay of execution in this court. - An interim Injunction restraining the Applicants' bankers, $(ii)$ wit, Orient Bank and Housing Finance from to implementing the decision of the Court of Appeal stopping the Applicants from operating their accounts in the said banks until the disposal of the substantive Application for Stay of execution in this court.

(iii) Costs of the application.

The Notice of Motion is supported by an affidavit which was sworn by Hon. James Michael Akena, the party President, on behalf of the applicants.

Prof. Edward Kakonge, life member and former National Chairman of 20 UPC, swore an affidavit in reply.

There was no affidavit in rejoinder.

# Facts:

An application for the writ of Certiorari, Miscellaneous Cause No. 86 of 2015 was filed in the High Court by the Respondent, seeking 25 for orders, inter alia, to quash the decision of the 2<sup>nd</sup> Applicant declaring James Michael Akena as President-Elect of the 1<sup>st</sup> Applicant. The judge granted the order.

$\mathsf{S}$

Justice Steven Kavuma, (DCJ), as he then was, of the Court of $\mathsf{S}$ Appeal, granted an Interim Order, staying the orders of the High Court, in Miscellaneous Application No. 26 of 2016, pending disposal of the application for stay of execution.

The application for stay of execution, Court of Appeal **Miscellaneous** Application No. 19 of 2016, was disposed of on 29<sup>th</sup> July, 2020. The 10 orders of the Court of Appeal, in that application were, inter alia:

- The delegates Conference of the 1<sup>st</sup> Applicant scheduled $(i)$ for $1^{st}$ August, 2020 be stayed, and: - The Applicants shall not operate accounts held at Orient $(ii)$ Bank and Housing Finance Bank until final disposal of Civil Appeal No. 20 of 2016

It is these orders that the Applicants are seeking to stay.

On the 7<sup>th</sup> of September, 2020, during the pendency of this application, the final judgment in Civil Appeal No. 20 of 2016 was delivered.

Representation.

At the hearing of the application, on 8<sup>th</sup> September, 2020, the Applicants were represented by Counsel Caleb Alaka and Counsel Fred Kato. The Respondent was represented by Counsel Fred Businge. They filed written submissions in accordance with a timetable given by court.

The gist of the Applicants' submissions is centred around their dissatisfaction with part of the decision of the Court of Appeal in

- Miscellaneous Application No. 19 of 2016 delivered on 29<sup>th</sup> July, 2020. - They also rely on the fact that the Applicants filed Supreme Court **Civil Application No. 21 of 2020** for a substantive stay of execution of the orders arising out of Court of Appeal **Miscellaneous** $\begin{array}{c}\n10 \\ 10\n\end{array}$ Application No. 19 of 2020. - They submitted that it is only fair, just, equitable and in the interest of justice that their application for an Interim Order is granted. - The Respondent, in reply, opposed the application for an Interim Order. They based the bulk of their grounds on the fact that Court of Appeal Civil Appeal No. 20 of 2020 was finally determined by the judgment of Justice Irene Mulyagonja delivered on 7<sup>th</sup> September, 2020.

Furthermore, that the Order for temporary stay in Miscellaneous Application No. 19 of 2016, the basis upon which the application was filed, was issued by the consent of both parties. Additionally, they averred, the order for stay was to operate from 29<sup>th</sup> July, 2020 until the final determination of Court of Appeal Civil Appeal No. 20

## of 2016.

其所需的必管的 上海 不可得得可能

The judgment in that Appeal having been delivered therefore, the Respondent contends, there is no basis for the instant application.

$\Delta$

The Respondent also challenged the legal basis of the application.

$\mathcal{C}^{\infty}(\mathcal{A} \otimes \mathcal{A} \otimes \mathcal{A}) = \mathcal{C}^{\infty}(\mathcal{A} \otimes \mathcal{A})$

$\lambda_{\infty}$ $\alpha_{\infty}$

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

This application, indeed, arises from Supreme Court Civil Application Nos. 19 and No. 20 of 2020 of the Supreme Court. It was filed pending the outcome of Civil Appeal No. 20 of 2016. The orders of the Court of Appeal in Civil Application No. 19 of

$2019$ read as follows: 10

> a) The Delegates Conference slated for 1<sup>st</sup> August 2020 shall be stayed.

b) Applicant shall not operate the UPC bank accounts in Orient Bank and Housing Finance Bank until resolution of the Court of Appeal Civil Appeal Number 20 of 2016 (underlined for emphasis)

The Orders that the applicants are seeking to stay were time bound, i.e. until resolution of Court of Appeal Civil Appeal No. 20 of 2016. The condition precedent upon which those orders were tagged has elapsed by delivery of the judgment in that appeal. The Orders sought to be stayed are, in effect, non-existent.

Those orders ceased being effective upon delivery of the judgment of the Court of Appeal on $7<sup>th</sup>$ September, 2020.

For an application for an interim order of stay to succeed, it must 25 show that a substantive application is pending and that there is serious threat of execution before the hearing of the pending substantive application. This is trite law.

The basis for the instant application is no longer pertaining. This means that there is no legal and factual basis for the application. The 30

ground upon which the application was made shifted. The $\mathsf{S}$ Application has no more leg to stand on.

The application has been rendered nugatory. It is moot and academic. That being the case, the application must collapse. There is no need of delving into the merits of whether the application is properly before this Court or not.

In the result, I would dismiss the instant application with no order as to costs.

Dated at Kampala this ....................................

### JUSTICE OF THE SUPREME COURT