Civil division of the High court in Kampala has dismissed an application by some of the opposition Forum for Democratic Change FDC members based at Katonga road seeking for an interim injunction stopping the National Delegates Conference slated on Friday 6th October, 2023.
The National Delegates Conference was called by the party Electoral Commission chairman Boniface Toterbuka Bamwneda with a sole purpose of electing the National Executive Committee members NEC.
In a suit filed at the High Court in Kampala on Monday, 23 FDC members headed by Ambassador Wasswa Biriggwa, the party Chairman and Salaam Musumba, the party vice chairman for Eastern region , they contend that Toterebuka who is the sole respondent in the case is acting illegally by convening the October 6th, 2023 meeting. They therefore wanted the court to issue a declaration that Toterebuka’s actions of holding the position of chief electoral commissioner of FDC and purporting to conduct internal elections for the leadership of the structures of the party are contrary to the constitution of the FDC and therefore, unlawful, and illegal.
They had also sought for a permanent injunction restraining the defendants his agent’s servants and or employees and anyone acting under him from holding the office of the Chief Electoral Commissioner of the FDC without the express mandate of the National Delegates conference of the
However, their application has been dismissed by the high court judge Musa Ssekaana in his ruling sent via email.
In his ruling Ssekaana said that the reasons stated by the applicants have no merit hence dismissing the application with no order as to costs.
Justice Ssekaana considered three grounds to dismiss the case with the first one being the applicant must show a prima facie case with a probability of success.
“The sum effect of the application for a temporary injunction is to put the entire party FDC in a limbo without office bearers or to facilitate the “coup leaders” to take over the party affairs until the court will determine this suit in 3 or 4 years away which may be an absurdity with a lot of unintended consequences.
in this regard, in as much as the applicants have contended that there are serious issues to be tried, this court should not merely issue a temporary injunction without being mindful of the entire party.”
On the second ground: that the applicant will suffer irreparable injury which cannot be atoned for by award of damages. he ruled that ” The interests of the applicants must be weighed against the general membership of the party and they do not have overriding interests against the others members. The potential positions or numbers of the membership of NEC is not mentioned, but the applicants are 27 members as against the number which the respondent has mentioned of 76 for the National Executive Committee. This implies that applicants are just 35% of the NEC and this would be against the majority membership and the entire party membership. The right of the applicants to be
protected has to be weighed against the corresponding need for the respondent to ensure that he exercises his mandate as granted by the party constitution and other party structures.
In the circumstances of this application, the applicants potential irreparable damage is far below the other party members who are desirous of taking part in the said election.”
On the third ground: If the Court is in doubt, it would decide an application on the balance of convenience. He ruled “This court further observes that the actions of the applicants to seek a temporary injunction as belated as they did was an act of bad faith. As the respondent stated
in his affidavit that the date of delegates conference of 6th/10/2023 was set in July 2023.
The applicants have offered no explanation as to why they decided to file an application for temporary injunction on 3rd October 2023 2 days to the function/conference-. The applicants were trying to stampede the court with applications for interim within such a short time. A delay in filing of an application 16 is equally a strong ground to deny a temporary injunction since it is a discretionary
and equitable remedy.
The applicants had an unfettered duty to satisfy the court that this equitable remedy granted at discretion of court was available to them. They also had a duty to satisfy the court that in the special circumstance of the case they are entitled to the relief of temporary injunction which in my view they have failed to discharge.
This application fails on the preliminary considerations set out herein and also on the grounds adumbrated for the grant of temporary of temporary injunction. The court would not in any event have granted any orders which would have affected party FDC when it is not a party.
In the result for the reasons stated herein above this application has no merit and
is hereby dismissed with no order as to costs.”
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