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Do the Magistrates Courts have the power of Judicial Review in Uganda

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Sections 40, 41 and 42 of the Judicature Act codify the power of the High Court of Uganda to subject Parliament and the Executive to Judicial Review and award judicial review remedies such as injunction, declaration,mandamus, prohibition or certiorari. The Judicature Act makes no reference to the Magistrates Courts and it neither codifies their power of Judicial Review nor excludes it. The question then is, do Magistrates Courts have the power of Judicial Review despite sections 40 to 42 of the Judicature Act?

  • Prior to 1999 when the Judicature Act was enacted, there was no statutory control of Judicial Review. So on what basis was judicial review exercised by the High Court and other courts?
  • Does the Judicature Act abolish the Common law power of Judicial Review.
  • Does the Magistrates Act abolish or codify the power of Judicial Review.

The subject matter civil jurisdiction of Magistrates Courts is conferred by Section 208 of the Magistrates Courts Act. It provides that Every magistrate’s court shall, subject to this Act, have jurisdiction to try all suits of a civil nature excepting suits of which its cognisance is either expressly or impliedly barred; but every suit instituted in a magistrate’s court shall be instituted in the court of the lowest grade competent to try and determine it. Under this provision Magistrates Courts have no authority to preside over cases where their jurisdiction is explicitly or implicitly barred [by statute]. Therefore, except where their jurisdiction is expressly or impliedly barred, magistrates’ courts have the jurisdiction to entertain and try “all suits of a civil nature.”

Construing statutes ousting the jurisdiction of Court

In Ozuu Brothers Enterprises v. Ayikoru Milka (H.C.C.R No. 64 of 2011), Hon. Justice Mubiru held that the Employment Act didn’t oust the Jurisdiction of Magistrates Courts by vesting jurisdiction in the Labour Officers. This decision makes it clear that for a statute to oust the Jurisdiction of Courts it must clearly or explicitly or implicitly provide so. It is not enough to oust the Jurisdiction of Courts by vesting jurisdiction in another tribunal or court. It is well established that the jurisdiction of courts so created to try suits of a civil nature is assumed unless it is taken away statutorily, either expressly (by enactment) or by necessary implication (based on general principles of law and equity or on ground of public policy). Exclusion of jurisdiction means prevention or prohibition of the court from entertaining or trying a matter though the dispute is civil in nature, in essence limiting its ability to discharge its constitutional mandate. De Smith’s Judicial Review, 6th ed 2007 by H. Woolf, J. Jowell and A. le Sueur, states at para 4-015 as follows;

The role of the courts is of high constitutional importance. It is a function of the judiciary to determine the lawfulness of the acts and decisions and orders of public authorities exercising public functions, and to afford protection to the rights of the citizen. Legislation which deprives them of these powers is inimical to the principle of the rule of law, which requires citizens to have access to justice.

For that reason, it is now a well recognized rule in the interpretation of statutes that a curtailment of the powers of a court of law, in the absence of an express provision or clear implication to the contrary, is not to be presumed. In the case of Smith v East Elloe Rural District Council [1965] AC 736 Lord Viscount Simonds stated as follows;-
“Anyone bred in the tradition of the law is likely to regard with little sympathy legislative provisions for ousting the jurisdiction of the court, whether in order that the subject may be deprived altogether of remedy or in order that his grievance may be remitted to some other tribunal.”

The principle of law that statutory provisions tending to oust the jurisdiction of the court should be construed strictly and narrowly was further propounded in the landmark decision in Anisminic v Foreign Compensation Commission [1969] I All ER 208 where Lord Reid stated:

It is a well established principle that a provision ousting the ordinary jurisdiction of the court must be construed strictly meaning, I think, that, if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court. Justice Mulenga, JSC in Habre International Company Limited v Kassam and Others [1999] 1 EA 125 stated that:
The tendency to interpret the law in a manner that would divest courts of law of jurisdiction too readily unless the legal provision in question is straightforward and clear is to be discouraged since it would be better to err in favour of upholding jurisdiction than to turn a litigant away from the seat of justice without being heard; the jurisdiction of courts of law must be guarded jealously and should not be dispensed with too lightly and the interests of justice and the rule of law demand this.

Do Sections 40, 41 and 42 of the Judicature Act oust the Jurisdiction of Magistrates Courts

These sections of the Judicature Act do not mention the Magistrates Courts. They merely state that an application for Judicial Review can be made to the High Court. Section 40 (1) provides that the High Court may, upon application for judicial review, grant any one or more of the following reliefs in a civil or criminal matter—

  • (a) an order of mandamus, requiring any act to be done;
  • (b)an order of prohibition, prohibiting any proceedings or matter;
  • (c)an order of certiorari, removing any proceedings or matter into the High Court;
  • (d)an injunction to restrain a person from acting in any office in which he or she is not entitled to act; or
  • (e)a declaration or injunction not being an injunction referred to in paragraph (d).

Sections 40 to 42 of the Judicature Act don’t require that an application for Judicial Review be made to the High Court. They simply state that an application for Judicial Review can be made in the High Court. The High Court has unlimited original jurisdiction and for this reason any application or suit triable by the surbodinate courts can be made or filed in the High Court. There is nothing inventive or special about providing that the high court can hear application for Judicial Review. There is no sentence or statement or provision within the express provisions of the Judicature Act stating that an application for Judicial Review must be made to the High Court or stating that an application for Judicial Review can not be made to the Magistrates Courts. To the contrary section 208 of the Magistrates Courts Act expressly provides that:

Every magistrate’s court shall, subject to this Act, have jurisdiction to try all suits of a civil nature excepting suits of which its cognisance is either expressly or impliedly barred; but every suit instituted in a magistrate’s court shall be instituted in the court of the lowest grade competent to try and determine it

Suits of civil nature are disputes whose primary focus is the rights and responsibilities of individuals and institutions and do not involve criminal law as the main point of contention. Judicial Review cases are disputes of a civil nature because they involve the legality of actions of government agencies. The liberal meaning of section 208 of the Magistrates Courts Act is that judicial review applications are civil suits that are within the jurisdiction of the Magistrates Courts.

Common law Judicial Review jurisdiction

Section 14(4) of the Judicature Act provides that Subject to subsection (2), in every cause or matter before the High Court, the rules of equity and the rules of common law shall be administered concurrently; and if there is a conflict or variance between the rules of equity and the rules of common law with reference to the same subject, the rules of equity shall prevail. The common law applies in Uganda provided that it doesn’t conflict with written law. See CMA CGM Uganda Ltd v H Ssekatawa International Ltd (Civil Appeal 27 of 2013) and Ababiri Muhamood & Four Ors V Mukomba Anastansia & Another (Civil Suit No. 22 of 2015).

At common law, courts have supervisory powers over the exercise of Administrative power by the Executive. “The principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.” Per Lord Hoffmann in Simms at page 13.

At common law courts have the power to examine the exercise of discretion by Administrative agencies and bodies exercising quasi judicial functions. Discretion must be lawfully, properly and reasonably exercised. See, Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223 and Council of Civil Service Union v Minister for the Civil Service [1985] AC 374. In Church of Scientology v Woodward, Brennan J said:

Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly.

Church of Scientology v Woodward (1982) 154 CLR 25, 70 (Brennan J).

Nothing in the Judicature Act provides that the Magistrates Courts are stripped of the ability to apply the Common law. Section 11 (3) of the Magistrates Courts Act provides that if in any cause or matter there is a conflict or variance between the rules of equity and the rules of common law with reference to the same subject, the rules of equity shall prevail. This section clearly allows the Magistrates Courts to apply Common law and equity. So if the express provision of the Magistrates Courts Act allows the courts to apply the Common law, then why can’t Magistrates Courts apply the Common law of Judicial Review.

Furthermore, Section 9 of the Magistrates Courts Act expressly provides jurisdiction should be exercised in conformity with the Judicature Act. Section 9 provides that;

The jurisdiction of a magistrate’s court shall, subject to this Act and any other written law limiting or otherwise relating to the jurisdiction of that court or of the presiding magistrate, be exercised in conformity with the law with which the High Court is required to conform in exercising its jurisdiction by the Judicature Act.

If jurisdiction must be exercised in conformity with the Judicature Act with which the High Court is required to comform and the Judicature Act does not bat exercise of Judicial Review, then the Magistrates Courts have the power of Judicial Review just like the High Court. If parliament wanted to oust the power of Judicial Review of Magistrates Courts it should have expressly and explicitly provided that Magistrates Courts have no power of Judicial Review.

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