THE REPUBLIC OF UGANDA
IN THE CONSTITUTIONAL COURT OF UGANDA, AT KAMPALA
MISCELLANEOUS APPLICATION NO. 46 OF 2010
2. NATIONAL COUNCIL FOR HIGHER EDUCATION::::RESPONDENT
[Arising out of Miscellaneous Application No. 42 of 2010 and Constitutional Petition No. 42 of 2010]
“a) A declaration that the recalling and cancellation of the Petitioner’s Certificate of equivalence issued by the National Council For Higher Education on December 08,2005, was inconsistent with and or in contravention of Article 28(1), 42, and 44 of the Constitution which guarantee her a right to just and fair treatment in administrative decisions is thus null and void.
c) A declaration that all matters concerning the academic qualifications of the Petition (sic) in so far as they relate to elections and her academic competence to stand for elective office are res judicata.
The petition was filed on the 25th October, 2010 along with an application for a temporary injunction and the instant application which initially sought for three orders, but after Mr Kenneth Kakuru, Learned Counsel for the Applicant abandoned No. 2 during his submissions, the application now seeks for orders:
The grounds of the application are briefly as follows:
b) That the applicant contends the directive was made without giving her a hearing and as such is in contravention of Articles 28, 42 and 44 of the Constitution and is to that extent null and void.
d) That if this order is not granted and the directive is enforced the applicant shall suffer irreparable loss and damage.
c) That if this application is not granted the main application and the Petition shall be rendered nugatory.
d) That the respondents will not in any way be prejudiced by the grant of the orders sought herein.”
Further grounds of the application are set out in the affidavit of Hon. Anifa Bangirana Kawooya; the Applicant sworn on the 25th October, 2010 and filed with the application.
The Petition was filed as a result of a letter dated 25th August, 2010 by the NHCE recalling the Applicant’s Certificate of equivalence issued to her in 2005 for further investigations.
The Respondents opposed the application and filed the affidavits by Martin Mwambutstya, a State Attorney and Professor Abdu B. Kasozi the Executive Director of the NHCE.
An interim injunction is a discretionary order issued by Court for a short time, and usually to a particular date pending determination of the main application. The conditions for the grant are basically the same with the ones pertaining to applications for temporary injunction. For instance, in Miscellaneous Application No. 18 of 2007, Hon. Jim Muwhezi Vs The Attorney General and IGG (un reported), Justice Twinomujuni had this to say in a similar application at page 9 of his Ruling:-
“However the main considerations for granting this application are the same as those for granting or rejecting the main application, namely:-
(b) That the suit from which the application arises discloses triable issues and is not frivolous and/or vexatious.
(c) That failure to grant the application would render the disputed matter nugatory in a manner that cannot be redressed through an award of damages.”
Further, an injunction being an equitable remedy, cannot be granted to a party who has demonstrated openly by his or her conduct that he or she is undeserving of the equitable relief. The maxim that a person who relies on equity must come to court with clean hands is an important maxim of equity. The courts will always deny the applicant an interlocutory injunction if the applicant comes to court with dirty hands. (See: Moody v Cox & Another [1916 - 17] All ER. Rep C.A 548)
The issue of jurisdiction can be disposed of by reproducing Article 137 (3) and (4) of the Constitution which provides that:
“(3) A person who alleges that-
(b) any act or omission by any person or authority,
(a) grant an order of redress; or
(b) refer the matter to the High Court to investigate and determine the appropriate redress.”
Rule (3) of the Constitutional Court (Petitions and References Rules S.1 No. 91 of 2005) provides:-
“S.3 (1) A Petition under article 137 (3) shall be in the form specified in the schedule to these rules.
(2) The Petition shall allege-
(a) that an Act of Parliament or any other law or anything in or done under the authority of any law is inconsistent with or in contravention of a provision of the Constitution; or
(b) That any act or omission by any person or authority is inconsistent with or in contravention of a provision of the Constitution;
(3) The Petition shall be divided into paragraphs numbered consecutively, each of which shall be confined, as nearly as may be, to a distinct inconsistency or contravention complained of.
(4) no costs shall be allowed for the drawing or copying of any petition not substantially in compliance with this rule, unless the Court otherwise orders.”
The main purpose of the interim injunction is to restrain the NCHE from cancelling the Certificate of urgency issued to the applicant in 2005.The applicant deponed in her affidavit in support:
The 2nd Respondent’s Executive Director, Professor Abud B. Kasozi has responded as follows in his affidavit in reply:
“7. That in response to paragraph 9 of Hon. Kawooya’s affidavit, I am informed by my aforesaid advocates , which information I verily believe to be true that on the 3/9/2010 the High Court in Egwali Rashid vs NRM Misc. Cause No. 403/2010, issued an interim order restraining the NRM from conducting primaries for Sembabule District Woman MP wherein Hon. Kawooya was a candidate, which was nevertheless violated. (See Annexture C).”
Annexture C is a copy of an interim order issued by Hon. Mr. Justice Yorokamu Bamwine on the 3rd September, 2010 where he ordered that:
2. An interim Order do issue restraining the Respondent and its electoral commission from approving the nomination of Anifa Kawooya as a candidate in the NRM Party Primary elections slated to take place on the 4th day of September, 2010.”
In conclusion, and for the reasons I have given, I see no need to go into the rest of the conditions for the grant of interim injunctions. They will be dealt with in the main application. I accordingly dismiss this application with costs to the Respondents.
Dated at Kampala this 05th day of November, 2010
HON. M.S ARACH-AMOKO
Ruling delivered in the presence of:
2. Gerald Batanda S.A for 1st Respondent.
3. The Applicant.
4. Ms. Nandudu Eseeri – Court Clerk.
HON. M.S ARACH-AMOKO
JUSTICE OF APPEAL