Questions of law derive their potency from the law itself and need not be proved or deposed to in affidavit evidence
Hassan Basajjabalaba & Another v The Attorney General of Uganda
Application No.9 of 2018
East African Court of Justice at Arusha
First Instance Division
M K Mugenyi PJ; F N Yayo DPJ; F A
Jundu, A Ngiye, C Nyachaye,JJ
March 27, 2019.
Reported by: Claris Njihia
International law-states organs of a state-conduct of-international responsibility of a state under the Treaty for the establishment of the East African Community – whether states were internationally responsible for the conduct of their judicial organs under Treaty for the establishment of the East African Community-International Law Commission’s articles on the Responsibility of States for Internationally Wrongful Acts, 2001, article 4(1).
International law– –The East African Court of Justice- jurisdiction of the court-appellate jurisdiction of the East African Court of Justice-decisions of domestic courts -whether the East African Court of Justice had appellate jurisdiction over the decisions of domestic courts of the East African partner states-Treaty for the Establishment of the East African Community, article 27(1).
International law-law of Treaty–Treaty for the Establishment of the East African Community -injunctions-interim injunctions-grant of interim injunctions-grant of interim injunctions where damages recoverable at common law were an adequate remedy -whether interim injunctions should be granted where damages recoverable at common law were an adequate remedy -Treaty for the Establishment of the East African Community, article 39.
Words and phrases– damages at common law- definition-general damages are given for losses that the law will presume are the natural and probable consequence of a wrong; general damages may also mean damages given for a loss that is incapable of precise estimation such as pain and suffering or loss of reputation; special damages are damages given for losses that can be quantified- Oxford dictionary of Law, Oxford University Press, 2009 ( 5th Ed.), p.246.
The applicant sought interim orders against the attorney general of the Republic of Uganda pending the determination of reference No. 8 of 2018.
The applicants sought injunctive orders restraining the Uganda Police or any other security agency of the Ugandan Government, the director of public prosecutions ( DPP) and the Anti-Corruption Division of the Uganda High Court from either recommencing the criminal proceedings that were still pending against them; or summoning, interrogating, arresting or otherwise requiring them to appear before any organ of the said government on the basis of the judgment and orders of the Constitutional Court in Constitutional Petition No. 12/2013, pending the determination by the instant Court of the amended reference.
- Whether questions of law needed to be proved or deposed to in affidavit evidence.
- Whether the East African Court of Justice had the appellate jurisdiction over the decisions of domestic courts of the East African partner states.
- Whether states were internationally responsible for the conduct of their judicial organs under the Treaty for the establishment of the East African Community.
- Whether interim injunctions should be granted where damages recoverable at common law were an adequate remedy.
Relevant provisions of Law
International Law Commission’s articles on the Responsibility of States for Internationally Wrongful Acts, 2001
Article 4(1) –Conduct of organs of a State
The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.
Treaty for the Establishment of the East African Community
Article 27(1)-Jurisdiction of the Court
1. The Court shall initially have jurisdiction over the interpretation and application of this Treaty: Provided that the Court’s jurisdiction to interpret under this paragraph shall not include the application of any such interpretation to jurisdiction conferred by the Treaty on organs of Partner States.
Article 39-Interim orders
The Court may, in a case referred to it, make any interim orders or issue any directions which it considers necessary or desirable. Interim orders and other directions issued by the Court shall have the same effect ad interim as decisions of the Court.
- A respondent to an application would do well to file an affidavit in reply in respect of the factual matters in issue in the application, but would very well opt not to file any affidavit of reply should s/he intend to respond to the application purely on points of law. Affidavits were tantamount to evidence on oath, albeit in the form of affidavit evidence. Questions of law derived their potency from the law itself and needed not be proved or deposed to in affidavit evidence. Consequently, if indeed the affidavit in reply only addressed matters pertaining to the original reference, then obviously there would be no affidavit in reply attesting to factual matters arising from the amended application. That, however, would not prohibit the respondent from responding to the application in submissions on points of law. A court faced with that eventuality would simply ensure that such a respondent did not purport to invoke matters of fact in submissions that were not grounded in an affidavit in reply.
- The grant of interim orders by the instant Court was governed by article 39 of the Treaty. The tri-fold principles for the grant thereof advanced in Giella vs. Cassman Brown; an applicant had to show a prima facie case with a probability of success; an interlocutory injunction would not normally be granted unless the applicant would otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages; if the court was in doubt, it would decide an application on the balance of convenience.
- There was the need for courts faced with an application for an interlocutory injunction to be satisfied that the claim was not frivolous or vexatious — but that there was a serious question to be tried; without attempting to resolve conflicts of evidence, as was previously required in the determination of ‘a prima facie case with probability of success as those were matters to be dealt with at trial.
- For a serious triable issue to be established the substantive suit should, on the face thereof without recourse to the merits, disclose a cause of action. Any questions as to the legality of the criminal summons issued by the respondent’s agents compelling the applicants to report for interrogation had indeed been overtaken by events and were, to that extent, moot. Moot, was the challenged inaction of the respondent state in the face of the then delayed judgment.
- On the applicants’ own admission, the impugned judgment had since been delivered, and it was with the form, content and import thereof that they took issue. The legality of summons that had since lapsed or inaction in respect of a delayed judgment that had since been delivered could not constitute live disputes before the Court. The legality of the criminal summons and the inaction by the respondent state, being moot questions, did not demonstrate serious triable issues for purposes of the application before the Court.
- The instant Court was not clothed with appellate jurisdiction over the decisions of domestic courts in the East African Community (EAC) partner states. Nonetheless, articles 27(1) of the Treaty did adorn the Court with original jurisdiction over the interpretation and application of the Treaty. Article 30(1) then provided the context within which such interpretation and application of the Treaty would ensue. Such interpretation would be undertaken in respect of any actions or decisions of partner states.
- States parties would be held responsible for all actions of state organs, including judicial organs. States were internationally responsible for the conduct of their judicial organs. The respondent state was responsible for the wrongful actions of its constitutional Court. The decisions and/ or actions of domestic courts would be interrogated to determine their compliance with the express provisions of the Treaty. Such actions or decisions, as well as any actions flowing therefrom when challenged in terms of their Treaty compliance would prima facie give rise to a cause of action before the instant Court. Any questions as to the legality of the Uganda Constitutional Court’s decision and the actions that would cascade from it, did pose serious legal issues for determination by the constitutional court. Consequently, the instant application did raise serious triable issues.
- If damages in the measure recoverable at common law would be an adequate remedy and a respondent would be in a position to pay them, no interim injunction should normally be granted.
- The applicants would have endured some degree of pain and suffering. Against the backdrop of the nature and import of general damages, such pain and suffering seemed to be precisely the sort of circumstances that (if proven) would warrant and be adequately recompensed by an award of general damages.
- The applicants faulted various state organs for seeking to hold them to account for alleged criminality. That course of action was well within the impugned organs’ constitutional mandate. The applicants did not portend that they had been denied either the right to representation, defence or opportunity to affirm their innocence. On the contrary, they were being offered the opportunity to have their day in court to dispute the charges preferred against them. They did have a right of appeal from the verdict in the criminal trial, as well as the option to seek appropriate recompense by instituting civil proceedings for wrongful prosecution should the occasion so warrant. The invitation to equate the wrongs alleged to the category of wrongs that, once lost, could not be adequately atoned by an award of damages was unacceptable.
- The applicants were the proud holders of a stay of execution order issued by the Supreme Court that effectively insulated them from any imminent or impending prosecution in the High Court of Uganda. It effectively preserved the status quo, rendering superfluous any attempt by the Constitutional Court to issue the interim orders sought in the application. The nature of temporary injunctions was that they were equitable remedies that sought to preserve such interests of parties as would otherwise render meaningless the final remedies sought in litigation proceedings. If that end had already been achieved, as was the case, there was no reason to purport to reinforce an effective court order. There was no irreparable injustice that the applicants would suffer if ex-parte orders were not granted as they were already the beneficiaries of protective orders.
- Where an application for an interlocutory injunction could not be determined on the existence of a serious triable issue or the adequacy of damages to atone for possible injury to an applicant, or where the court nursed any doubts as to the adequacy of either of those preconditions to settle an application for interim orders; it was a question of prudence that the court should decide the matter on a balance of convenience. The applicants were aptly insulated from any impending injury
Application dismissed; interim orders sought by the applicants not granted; costs to be in the cause.