THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT FORT PORTAL
MISCELLANEOUS APPLICATION NO.57 OF 2012
KAKYOMYA FARM AND ANOR::::::::::::::::::::::::::::::::::::::::::::::::::;:APPLICANTS
- ATTORNEY GENERAL
- TREASURY OFFICER OF ACCOUNTS/ ::::::::::: :::::::::::RESPONDENTS
SECRETARY TO TREASURY
BEFORE HON. MR. JUSTICE MIKE J. CHIBITA
This was an application by Notice of Motion seeking for the prerogative orders of mandamus to issue against the Attorney General and Treasury Officer of Accounts/Secretary to the Treasury, for payments to satisfy the decree and certificate of court in HCT 01 CV CS 014 of 2005, for general damages and costs of the application.
The grounds of the application are stated in the motion and application is accompanied by the affidavit of Counsel Richard Bwiruka. There is an affidavit in reply by Ernest Bafaki, Under Secretary of the 1st Respondent.
The Applicants were represented by learned Counsel Muhumuza Kaahwa while the Respondents were represented by learned State Attorney Charity Nabasa. They filed written submissions.
Counsel for the Applicants submitted as follows:
“That the applicants filed Civil Miscellaneous Application No. 17 of 2012 where they prayed for similar reliefs and the court held as follows:
‘The Applicant is advised to issue a demand note to the Respondents giving the updated figure as soon as possible. If the current financial year ends without the bill being honoured then an application for mandamus should be filed and considered at that stage.
This also serves as notice to the Respondents that failure to satisfy the applicant’s certificate in the current financial year will most definitely attract issuance of the writ of mandamus.’
“That the Respondents have not complied with the said order neither have they adduced any plausible explanation or reason why they have not done so. Neither have they shown any proof of commitment to pay.
“That the purported excuses are not grounds of non compliance with the Court order but rather evidence of unreasonableness, obstinacy and lack of commitment.
“That the applicant is a decree holder with the relevant certificates of orders for both the decretal sum and costs. Demand notices have been issued and duly served.”
Learned Counsel therefore prayed to court that the Respondents prayer to put the application in abeyance for another six months should not be granted. He therefore prayed that the writ of mandamus should issue plus general damages of Shs 500,000,000/= and costs of the suit.
In reply, learned Counsel for the respondents averred that the respondents are committed to paying the decretal amount as and when enough funds have been released in the budgetary allocations.
She submitted that section 37 of the Judicature Act empowers court to grant the order of mandamus where it is just and convenient. She cited the case of Patrick Kasumba vs. Attorney General where Bamwine J, as he then was, held that grant of prerogative orders is purely discretional.
She further referred court to the cases of Goodman Agencies Ltd vs. Attorney General and Benon Turyamureeba vs. Attorney General where Kasule Remmy J, as he then was, held that a period of two years and eight months was sufficient for the Respondent to satisfy the decree in full.
She therefore prayed for sufficient time within which to pay the applicants.
Indeed in March, this court issued the attached order in response to an earlier application No. 17 of 2012
I have listened to the arguments by both Counsel. Both parties know that there was an appeal against the Bill of costs, which was successful in reducing the amount allowed as taxed costs.
Since the Applicant has not yet made a demand from the Respondents ever since the figures were revised, it is rather premature to issue the writ of mandamus.
The Applicant is advised to issue a demand note to the Respondents giving the updated figure as soon as possible. If the current financial year ends without the bill being honoured then an application for mandamus should be filed and considered at that stage.
This also serves as notice to the Respondents that failure to satisfy the applicant’s certificate in the current financial year will most definitely attract issuance of the writ of mandamus.
I appreciate the Respondents plea for a six months’ period within which to honour the decree. My last order was to the effect that the decree should be satisfied in the just completed financial year.
It is about eight months since the last order was issued and about five months since the financial year elapsed. It is also three months into the six months that the Respondents prayed for in the affidavit in reply.
In my view there has been ample effluxion of time to force the hand of court to allow the application and grant the writ of mandamus with costs to the applicants.
There has been no justification for general damages to be paid to the applicants and I therefore decline to grant that prayer.
Dated at Fort Portal this 15th day of November, 2012
JUSTICE MIKE J. CHIBITA
THE RULING WILL BE READ BY THE ASSISTANT REGISTRAR
MIKE J. CHIBITA
JUSTICE MIKE J. CHIBITA DATE