The Observer (Kampala)

13 April 2014

Uganda: Lukwago's Supreme Court Fight As It Happened On Friday

Lord Mayor Erias Lukwago learnt on Friday that he would have to wait a little longer before reoccupying his office at City hall.

A panel of five Supreme court judges, led by Esther Mayambala Kisaakye, set April 24 to begin hearing Lukwago's challenge to Acting Chief Justice Steven Kavuma's ruling that removed him from office last month. Lukwago had reentered the office after a ruling by High court judge Lydia Mugambe. Kavuma's ruling stayed the orders of Justice Mugambe that reinstated Lukwago.

Lukwago subsequently went to the Supreme Court seeking to be allowed to return to his office, among other things. On Friday, Lukwago didn't get the desired verdict because State Attorney Martin Mwambutsya and KCCA's legal team argued that Lukwago's appeal was wrongly before the Supreme court.

They contended that Lukwago's appeal should be before a three-man panel in the Court of Appeal not the Supreme court. After protracted arguments by all parties, the court dismissed the State's preliminary objection and set April 14 as the new hearing date and maintained the status quo [Lukwago not re-entering his office.

The court also had Justices Benjamin Odoki, John Wilson Natabu Tsekooko, Christine Kitumba and Galdino Okello. Siraje Lubwama and Derrick Kiyonga recorded the proceedings. Here's an abridged version:

Walubiri: If it may please you my lords, I am Peter Walubiri appearing for the applicant together with my fellow learned friends Abdu Katuntu, Samuel Muyizzi, Julius Galisonga, Kiwanuka Abdullah, Jude Mbabaali and Chrysostom Katumba. For the first Respondent [Attorney General], we have State Attorneys: Martin Mwambutsya, Imelda Adongo and Clare Kukunda. The second Respondent [KCCA] is represented by my learned friend Charles Ouma, the deputy director for litigation KCCA.

Before we proceed, I seek permission to tender in extra affidavits and authorities. As we filed them, we were advised to seek court's leave to tender them in.

Kisaakye: Leave is granted.

Walubiri: Much obliged, we're ready to proceed with the application.

Mwambutsya: My lords, we filed some more documents late. We're also seeking leave to be tendered in.

Kisaakye: What documents did you attempt to file?

Mwambutsya: We attempted to file two more affidavits. We also filed this morning a list of authorities as well. The reasons for late service are that we were served with the appeal on 7th (April) and we didn't have enough time to reply.

Tsekooko: Why not enough time after being served four days ago?

Mwambutsya: As we were trying to file yesterday, we were served with other affidavits as well. We're praying for your indulgence that leave be granted for our affidavits and list of authorities to be tendered in.

Walubiri: We have no objection.

Kisaakye: Leave to file documents is granted.

Mwambutsya: We have a preliminary point of law to the effect that this matter is wrongly before you and as such we pray for its dismissal. We contend that the application is incompetent and frivolous and the same is an abuse of court process as it has no foundation; there is no appeal in the Supreme court. The intended appeal has been filed in the Court of Appeal (seizing on a mistake in Lukwago's plaint).

The appeal stems from the order that was granted by a single judge in the Court of Appeal under section 98 of the Civil Procedures Act and Section 12(1) of the Judicature Act, Rules 2(2),6(2)(b), 4(2), 4(3)(1) and 43(1) of the Judicature Act which enables a party who is not satisfied with an order of a single judge in the Court of Appeal to make a reference to a panel of three judges before the same court by way of reference under section 12(2) of the Judicature Act.

The same is reflected in rule 55(1) and (2) of the Court of Appeal rules. I would now turn to section 6(1) of the Judicature Act [reads it]. The orders of Justice Kavuma did not confirm the orders of the High court; they did not vary or reverse the orders of the High court, they only stayed execution pending hearing of the main application for stay.

The (Kavuma's) order itself says the order will be enforced for 21 days from the time the order was given. This was just an interim stay pending the main application for the stay.

Okello: What does it matter?

Mwambutsya: The main application for stay is before a panel of three judges of the Court of Appeal. We contend that the application is illegally before this court and the same is actually reflected in paragraph 20 of his [Lukwago's] affidavit on annexure EL8 attached on the memorandum of the application in the Court of Appeal. If it was intended for Supreme court, it would show it was going to be filed there.

Tsekooko: But the opening paragraph says it is intended to come before the Supreme court.

Mwambutsya: But in the intended appeal, they say they are going to appeal in the Court of Appeal. Okello: It also says 'we're appealing to the Supreme court'.

Mwambutsya: [reads a section of the Court of Appeal rules].

Okello: That one is just a preamble. How do we reconcile the section that says we're appealing to Supreme court? Let's not waste most of the time.

Mwambutsya: Most obliged.

Kisaakye: This is a PO [preliminary objection]; can you conclude in three minutes?

Mwambutysa: We contend that there is no appeal. This means there can't be a trial before this court. On these grounds, we pray that the application be dismissed because it is wrongly before you with costs to the respondents as the same is an abuse of court process.

Okello: Application be dismissed or struck off?

Mwambutysa: It should be struck off.

Walubiri: My lords, we oppose the preliminary objection, there is no merit in it.

Kisaakye: Mr Walubiri, you have 20 minutes to submit.

Walubiri: Yes, I was submitting that we object to the preliminary objection. There is an appeal before this court. As per the applicant's affidavit in paragraph 19, he filed a notice of appeal in this court against the orders of Justice Kavuma which is annexure EL6. It appears shortly after the draft memorandum of appeal that my learned friend [Mwambustya] was referring to. That notice of appeal is very clear that he intends to appeal in this court against Justice Kavuma.

Okello: It is an independent application.

Walubiri: Much obliged. The intended appeal raises questions of law. The draft memorandum of appeal should be read, the error notwithstanding.

Kitumba: So, you admit there is an error?

Walubiri: Yes my lord, but it's not a matter of substance. Once there is a notice of appeal, this court has jurisdiction to entertain the application. The authority is found in a blue folder unfortunately everything looks blue [laughter].

That was an application for stay of proceedings and an objection was raised for an injection of a top remedy which was overruled in an appellant court basing on former rule 5(2) which is now rule 6(2)(b) to the effect that you can file an appeal to the Supreme court. There should be a notice of appeal. This court must ascertain that the intended appeal is competent. The fact there was a notice of appeal; we submit that the appeal can be heard.

The second argument is under section 6(1) of the Judicature Act. The intended appeal is actually competent because without prejudice of our first argument, an appeal under section 6 lies as a right to this court. Once the Court of Appeal confirms or defers orders including an introductory order of High court, it is our submission that Justice Kavuma varied and in effect to set aside three orders of the High court.

The order of Justice Kavuma under annexure EL4 did replace the orders of Justice Lydia Mugambe which were to the effect that the applicant should not be prevented from working as lord mayor. Paragraph 6 of this order is very express pending the appeal [reads].

If you look at the same order, order number two by His Worship the deputy registrar Fred Waninda, this was the order stopping KCCA councillors from impeaching Lukwago, was also reversed.

Paragraph 3 of Justice Kavuma [ruling] again reversed the order of Justice Yasin Nyanzi.

Illegality

Our last argument is one of illegality under rule 55 of the Court of Appeal rules which has been referred to by my learned friend. But before we refer to that rule, one has to refer to rule 53(2) and (3) of the Court of Appeal rules and the essence is that the Court of Appeal is composed of a panel of three justices.

It is our submission that the learned Justice Kavuma acted illegally when he single-handedly reversed High court orders. This clearly calls for the attention of the Supreme court. With those grounds, we submit that we're in this court legally. The other illegality if you look at the order of Justice Kavuma is that he considered matters that were not before him.

As per annexure EL4, it clearly shows that application No. 94 of 2014 that was handled by Justice Lydia Mugambe; Justice Kavuma also went ahead and made orders on misc. application No. 154 of 2013 that was heard by the deputy registrar. His lordship [Kavuma] went ahead to make orders that were not before him but before Judge Nyanzi.

My lords, this honourable court has had occasions to express itself against illegality [cites an authority that can't be easily traced by judges in the bounded books supplied to court].

Odoki: What has happened to you on the bar?

Walubiri: We were under pressure my lord.

Odoki: A team of about ten lawyers?

Walubiri: My lords, the point we would like to deliver is that in view of the illegality of Hon Justice Kavuma sitting as a single justice and considered motions that were not before him is another added illegality. Even if the appeal is not properly before this court which is not the case under rule 2(2) of the rules of this court, this court has jurisdiction to entertain the application.

In one minute let's submit that it has not been possible for the applicant to really get justice in the Court of Appeal. The supplementary affidavit of Mr Erias Lukwago tells a very long story in paragraph seven.

Odoki: Are you arguing another motion? Walubiri: My lords, I will rest the case and pray that you dismiss the preliminary objection.

Kisaakye: Mr Mwambutsya you have five minutes.

Mwambutsya: I contend that jurisdiction is not vested in the notice of appeal as Mr Walubiri decided to argue. All authorities cited are distinguishable from the application before you. Those appeals were entertained by a panel of three judges of the Court of Appeal. In the current case before you, the appeal is against the order of a single judge and not the Court of Appeal which is constituted by the deputy chief justice and other judges under section 9.

Under vested powers of the Court of Appeal, Justice Kavuma was sitting as a single judge [laughter]. A panel of three justices of the Court of Appeal could vary or confirm the decision on an appeal under a reference.

In regard to the issue of illegality raised, we contend that the order that was granted by Justice Kavuma was not illegal as the application before you is trying to say; try to vary the orders of Justice Kavuma [cites another authority]. Justice Kavuma was moved, a situation would be different if he was not moved.

Walubiri: I wonder whether there is any record that the judge was moved.

Tsekooko: To grant orders which were not in the application?

Mwambutsya: Justice Kavuma was moved under section 2(2). What the applicant should have done was to appeal through a reference to Court of Appeal where a panel of Court of Appeal would entertain the application. What the applicant is trying to do now by appealing to the Supreme court is in itself an illegality. It is in the interest of justice that justice must be administered in accordance with the law. We reiterate my earlier prayer that the application should be struck off with costs.

Kisaakye: This court will resume after 30 minutes. [Time check is 11:30am]. [Court resumes at 12:25pm]

Kisaakye: This is the ruling of court. We have considered the submissions of all parties and we find no merit in the preliminary objection - we shall give our reasons. We're however unable to proceed with the hearing. It has been adjourned to 24th April 2014 at 10:00 am. In the meantime, the status quo remains.

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