NATURAL JUSTICE

Definition

Natural Justice has been variously defined. Folkes defines it as “the basic irreducible
standard with which administrators are required to comply”.

In Ridge – V – Baldwin [(1963) 1 QB 539 at 578] Harman L J defined it as fair play in action.

In Administrative Law, natural justice is now a well defined concept comprising of two basic
rules or principles of fair procedure.

A person affected by a decision has a right to be heard,

A person taking a decision must not be biased.

Background

The principles of natural justice have evolved as one of the most important avenues for the
judicial control of administrative action. The courts can control the substance of actions and
decisions of public authorities on such grounds as reasonableness, improper purpose,
procedural impropriety and excess of jurisdiction by Public Authorities.

Natural justice in judicial, quasi-judicial and administrative decisions

In English common law, there was a time of confusion, when the courts held that natural
justice was thought to be applicable only when the act in question was classified as judicial
rather than executive or administrative in nature. The courts were of a view that natural
justice did not apply in decisions of a purely administrative nature. (See Foulkes at Pg. 365).
This confusion was illustrated in a number of cases. In case of Nakkuda Ali – V – Jayaratne
(1951) AC 66, in which the Privy Council held that a textile trader could be deprived of his
trading licence without any kind of hearing. And in R – V – Metropolitan Police
Commissioner exp. Parker [1953] 1 W.L.R 1150. The court held that the tax driver’s licence
could be revoked without a hearing; Lord Goddard C.J said that the commissioner if he
wished could summarily withdraw a licence without any sort of hearing or inquiry that the
order did not intend that he should act as a judge or a quasi-judge.

However as this position was obviously extreme, the courts came up with some sort of
middle ground in the term “quasi-judicial” to describe powers which though administrative ,
were required to be exercised as if they were judicial, that is, in accordance with natural
justice. This ambiguous position continued for some time until the landmark case of Ridge –
V – Baldwin (1964) AC 40. In that case, the House of Lords finally cleared the air and
emphasised that there was no need to classify acts or decisions as judicial, quasi-judicial or
administrative in nature. As long as the exercise of administrative power affects the rights or
interests of individuals, natural justice must be observed during the exercise of such power.

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Thus the current position is that administrative authorities have a duty to act fairly when
reaching decisions. This was emphasised in the case of R – V – Gaming Board for Great
Britain ex. P. Benaim and Kahdia (1970) 2 ALL E.R 528. The court held that the duty to act
fairly in essence means the same as natural justice and therefore encompasses the right to a
fair hearing and the rule against bias.

Principles of natural justice

>> The duty to act fairly in Uganda’s legal system

This duty to act fairly has been codified in Uganda’s legal system. Article 42 of the 1995
constitution provides that any person appearing before any administrative official or body
has a right to be treated justly and fairly (See also article 28). In Uganda therefore, natural
justice in administrative decisions is no longer simply a matter of common law principles but
has now been elevated to the status of a guaranteed human right.

(i) The right to a fair hearing

The basis of this rule is that bodies entrusted with legal power can not validly exercise it
without first hearing the person who is going to be affected by the decision. Fair
consideration of both sides of the case is essential to ensure good administration.

Article 28 of the Constitution of the Republic of Uganda provides for the right to a fair
hearing. It is an opportunity to know the case against the defendant and the right to make
presentations on the matter.

Thus in case of Cooper – V - Wandesworth Board of Works (1863) 14 CB (NS) 180, the
defendant demolished the plaintiff’s house without giving him prior notice or an opportunity
to make representations on his own behalf. The plaintiff’s action succeeded and he obtained
damages for trespass. The court emphasised that even where applicable statute does not
specifically provide for notice or an opportunity to be heard, the public authority is under
duty to apply the rules of natural justice.

This position was re-emphasised in Ridge – V – Baldwin (supra). The facts were that the
chief constable of Brighton had been tried and acquitted on a criminal charge of conspiracy
to obstruct the course of justice. Thereupon, the Brighton Watch Committee, which was
responsible for the enforcement of discipline in the Police Force, dismissed him from office
without giving notice or offering a hearing. The House of Lords held that the decision was
void due to the failure to give notice of the charge and an opportunity to make his defence.

And in Dennis Bireije – V – Attorney General H. C Misc. Appl. No. 902 of 2004. This was an
application by way of judicial review, for orders of certiorari, prohibition, declaration and
mandamus. It sought to quash certain decisions of the Solicitor General and his Minister by
which the applicant was moved from office on allegations of serious misconduct, abuse of
office and engaging in corrupt tendencies among others.

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The applicants sought a declaration to the effect that his removal from office was for no
cause, null and void and an order that he resumes his office. He submitted that he was never
warned, reprimanded or subjected to any disciplinary proceedings before being removed
from office.

Justice Okumu Wengi held that the decision maker must act in accordance with the law,
fairly and reasonably, an administrative action will be subjected to judicial control for
illegality, irrationality and procedural impropriety. That the removal of the applicant from
office without the chance to defend himself breached the cardinal rules of natural justice
and therefore, granted the order of certiorari to quash the decision and a declaration that
the applicant was free to resume his office.

Elements of the right to a fair hearing

Notice

The affected person must have fair notice of any allegation against him or her, i.e. disclosure
of the charge or opposing case must be made in reasonable time to allow the person
affected to prepare his defence or his comments. In some instances, notice is a statutory
requirement and if not complied with, the proceedings are a nullity. Where there’s no
statutory requirement of notice, the rules of natural justice apply to dictate its necessity.
Adequate/ reasonable notice will always depend on the circumstances of the case. Notice
should also include the substance of the allegations or charges. This was emphasised in the
East African case of De Souza – V – Tanga Town Council (1961) E. A 377.

Notice should specify the time and place where the hearing of that particular case is to take
place. Notice cannot be dispensed to you just because the committee has discretionary
powers. In Patel v Plateau Lincensing Board; it was held, inter alia, that the court will always
assume that the Legislature could not have intended to deny an individual a right to be
heard before a public authority.

The right to know the opposing case

A proper hearing must always include a fair opportunity to those who are parties in
controversy for correcting or contradicting any thing prejudicial to their view. In case of
Kanda – V – Government of Malaya [1962] AC. 322, Lord Denning said:

“If the right to be heard is to be a real right which is worth any thing, it must carry with it a
right in the accused man to know the case which is made against him. He must know what
evidence has been given and what statements have been made affecting him and then he
must be given a fair opportunity to correct or contradict them.”

In some administrative situations there are limits to the broad principle stated above. What
is essential is substantial fairness to the person adversely affected by the decision. In a
leading case of R V Gaming Board for Great Britain exp.Benaim and Khaida [1970] 2 QB.

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417. The Court of Appeal applied these considerations to the procedure of the Gaming
Board in granting certificates of consent to persons wishing to operate gaming clubs. It was
the Board’s duty to investigate the credentials of applicants and to obtain information from
the police and other confidential sources. Such sources, it was held need not be divulged if
there were objections properly based on the public interest. The Board must, however, give
the applicant an indication of the objections raised against him so that he can answer them,
as fairness requires.

Adjournment

Failure to allow an adjournment may amount to failure to give a hearing and thus a failure of
natural justice or fairness. See Re Marles (An Infant) [1968] W.L.R 1897. In the instant case,
the applicant successfully overturned a decision in which he was denied an adjournment
and thus failed to consult his lawyers.

An oral hearing

In Lloyd – V – McMahon [1987] AC 625, the House of Lords said that fairness might require
the decision maker to offer an oral hearing depending of the circumstances. In this particular
case the circumstances did not. This case can be distinguished from the case of R – V –
Immigration Tribunal ex. P. Mehmet [1977] 1 W.L.R 795, where the Tribunal’s decision and
resulting deportation order was quashed for failure to afford an oral hearing.

Witnesses

Natural Justice may be infringed where a person is not allowed to call witnesses in support
of his case. See R – V – Hull Prison Board of Visitors ex. P. St. Germaine [1979] ALL ER. 545.

In some cases, it has been held that a person also has a right to cross examine witnesses
from the other side. For example in Errington V Ministry of Health [1935] 1 K. B 249 at 272.
However, in other cases, it has been held that in some administrative proceedings where the
nature of inquiry is informal, as before a disciplinary committee of a University, failure to
allow cross examine does not amount to a breach of natural justice. In (Ceylon University V
Fernando [1960] 1 W.L.R 2223 at 253.) a student was dismissed for examination mal
practice. The complainant did not cross examine one of the witnesses before the disciplinary
committee though he had been given the chance to do the same. Court pointed out that the
principle is not that one must cross-examine but that he/she should be given opportunity to
do so.

Duty to give reasons

It is not a principal of natural justice that reasons should be given for decisions.
Nevertheless, it is generally accepted that fairness in administration includes the duty to give
reasons for decisions. In case of Breen – V – Amalgamated Engineering Union [1971] 2 QB
175 Lord Denning (Dissenting) said that:

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“The giving of reasons is one of the fundamentals of good administration.”

And in Minister of National Revenue – V – Wrights’ Canadian Ropes Ltd [1947] AC 109 at
123. The Privy Council held that a minister who had failed to give reasons for a special tax
assessment had not shown that it was correct and that the tax payer’s appeal must be
allowed.

Legal Representation

The right to representation by a lawyer or other person may prove to be part of natural
justice in suitable cases, but this is not as yet clearly established. In Pett – V – Greyhound
Racing Association [1969] 1 QB 125, the Court of Appeal was of the view that Legal
Representation should be allowed where a case concerns a person’s reputation and
livelihood. However, in contrast with Enderby Town Football Club – V – Football Association
Ltd [1971] 1 ALL ER. 215, the Court of Appeal held that the right of legal representation may
be excluded by an association’s rules.

Appeals

Natural justice does not require that there should be a right of appeal from any decision.
This is an inevitable corollary of the fact that there is no right of appeal against statutory
authority unless statute so provides. (See Ward – V –Bradford (1971) 70 L.G.R. 27). In Leary
V National Union of Vehicle Builders [1971] Ch 34. Magarry J. pointed out that as a general
rule, a failure of natural justice in the trial body cannot be cured by a sufficiency of natural
justice in the appellate body. However, in Ridge – V – Baldwin (supra), The House of Lords
did not allow the chief constable’s unsuccessful administrative appeal to the home secretary
to prejudice his right to a fair hearing before a watch Committee.

Fairness in particular in particular instances

It must be noted that in some contexts, fairness and the rules of natural justice have been
held to be limited. Below are some of examples and illustrations of broad categories of
administrative actions where natural justice may or may not apply.

There is no right to be heard before the making of legislation, whether principal or

subsidiary, unless it is provided for by law. See Bates v. Lord Hailsham of St Marylebone
[1972] 3 ALL ER. 1019. This has been interpreted as reluctance by the judiciary to interfere in
the legislative process, as part of the doctrine of separation of powers. However, it should be
noted that on the whole, the law provides for consultation as part of the law making process
and cases in this nature rarely arise.

Government Boardies that exercise Licensing Function must exercise their administrative
powers fairly and are bound by the rules of natural justice. This is due to the recognition that
licensing is a drastic power greatly affecting the rights and liberties of citizens and in
particular their livelihood, and therefore there is a need for fair administrative procedure.

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This was emphasised in the case of Ndegwa – V – Nairobi Liquor Licensing Court. [1957] E.A
709.

Natural Justice including the right to be heard is an essential part of investigative procedures
such as those undertaken by commissions of inquiry. For example in Annebrit Aslund V
Attorney General, the High Court of Uganda invalidated the Report of the Commission of
Inquiry into allegations of corruption in Uganda Revenue Authority, on grounds inter alia
that the applicant was not given a fair hearing. The principle of Natural Justice as enshrined
in the Latin Maxim “Audi alteram partem” was flouted as “the applicant was not given an
opportunity to correct or controvert the damaging report which was brought forward to her
prejudice. As a professional woman, there could be no more damaging remarks than to say
of her that she was incompetent”.

With regard to offices and employments, it is necessary to draw a distinction between

Master and Servant relationship-This is regulated by the law of contract and therefore the
principles of Administrative Law, including the right to a hearing, may have limited
application. In such situations, wrongful dismissal entitles the aggrieved party to damages. In
Ridge – V – Baldwin, Lord Reid said that: “A master can determine the contract at any time,
for any reason or none though to do so may constitute a breach of contract for which
damages may be awarded.”

Public Officers - Statutory safeguards must be observed. Usually the employment of public
officers is provided for by Statute, and such Statute specifies the grounds and circumstances
under which a public savant may be removed from office. Failure to observe the statutory
provision may result in a dismissal being declared void.

Thus in case of Bank of Uganda – V – Betty Tinkamanyire, SC Civil Appeal No. 12 of 2007.
The respondent was an employee of the appellant at the time she was wrongly dismissed
from her employment without following the requisite procedures. She filed a suit in the High
Court claiming reinstatement and damages for unfair and unjust and wrongful dismissal.

Justice Kanyeihamba held that, “it is trite that, a court of law should not use its powers to
enforce an employer to retake an employee. It no long wishes to continue to engage.
However, depending on circumstances, an employee who is unfairly or unlawfully dismissed,
as in this case, should be compensated adequately in accordance with the law. The court
also found that no reasons where given in the termination letter by the Deputy Governor.

However, there is need to distinguish a category of public officers, described as “offices held
at pleasure”. Here, the person having the power of dismissal need not have any thing against
the officer and so he need not to give any reason. See Section 24 of the Interpretation Act,
Cap. 3., Opolot – V – Attorney General (1969) E.A 631.

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In Wycliffe Kiggundu Kato V A G (1992) 1 KALR 125, the plaintiff then Acting Director
General of Civil Aviation of Uganda was interdicted for two years. He ignored the Permanent
Secretary’s letter asking him to make a representation on the accusations against him. The
President retired him from Public Service in public interest and he sued the Attorney General
contending that his retirement was unlawful for breach of procedure by the public service
commission in that he was not heard. The defendant’s council raised a preliminary objection
that the retirement was a proper exercise of a presidential prerogative. It was held that
persons are employed in the public service by the President under Article 104 (1) of the
Constitution (1967) which gives him the unfettered prerogative to dismiss and retire at
pleasure, and in public interest. Although availed the opportunity to be heard, the plaintiff
denied himself the right to be heard by refusal to make the representation. The retirement
of the plaintiff was therefore proper and the plaint did not display a cause of action.

The right to a fair hearing may be excluded where considerations of national security must
be taken into account, as was the case in Council of Civil Service Union – V – Minister for
the Civil Service [1985] AC 374. In R v Secretary of State for the Home Department ex parte
Hosenball; Mark Hosenball was an American journalist working in the United Kingdom. In
November 1976, four weeks before the applicant’s permit to stay in the UK was due to
expire, he received a letter from the Home Office which stated that the Secretary of State
had information that the applicant had obtained for publication information harmful to the
security of the UK. The applicant immediately consulted his lawyers who requested the
Home Office to give further particulars of the allegations against him but the Secretary of
State declined because in his view, it as not in the interest of national security to do so.

Lord Denning MR, in his judgement point out;

“…He was not given sufficient information of the charges against him so as to be able to
effectively deal with them or answer them. But this is no ordinary case. It is a case in which
national security is involved and our history shows that when the state itself is endangered,
our cherished freedoms may have to take a second place. Even natural justice itself may
suffer a setback.”

It has been held that the right to a fair hearing will not apply where factors such as agency
come into play, i.e. where agent action is needed to safeguard public health or safety. In
White – V – Red fern [1879] QBD 15, the right to fair hearing was excluded where there was
an urgent need to seize and destroy bad meat that had been exposed for sale.

(ii) The Rule against Bias

This rule is enshrined in the latin maxim ‘Nemo judex in causa sua’ which means that no man
should be a judge in his own case.

Article 28(1) guarantees the right to be heard in an impartial court/tribunal. This is also
stated in Article 6 (1) of the European Convention of Human Rights.

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A judge should decline or be disqualified from determining any matter in which he may be
biased. He should be independent of both parties because justice should not onlybe done
but should manifestly and undoubtedly be seen to be done.

In Metropolian Properties Ltd vs Lannon, Lord Denning said;

“The reason is plain enough. Justice must be rooted in confidence: and confidence is
destroyed when right minded people go away thinking; ‘the judge was biased…’ the court
looks at the impression which would be given to other people even if he was as impartial as
he would be; nevertheless if right minded persons would think that in the circumstances
there was a real likelihood of bias on his part, then he should not sit and if he does sit, his
decision cannot stand…”

Bias is therefore an attitude that tends to favour one party against the other. In AG v.
Anyang’ Nyong’o & Ors [2007] 1 EA 12; The Attorney General of Kenya brought an
application based on the grounds that two judges failed to disclose to the parties material to
the facts that they were related to the Republic of Kenya in a manner which rendered it
impossible for them to give a fair hearing to the first respondent since one of them was
suspended from the performance of his functions of a judge of appeal in the republic of
Kenya, and a tribunal to investigate his conduct as such was suspended for the performance
of his functions of Puisne judge in the Republic of Kenya and a tribunal to investigate his
conduct as such was appointed.

It was held that judicial impartiality is the bedrock of every civilised and democratic judicial
system. That the system requires a judge to adjudicate disputes before him impartially
without bias in favour or against any party of the dispute.

Circumstances that suggest bias include: pecuniary or financial interests. People are
presumed to be protective of their personal interests, so the need will inevitably arise where
the case involves outright financial advantages; for instance where one is a shareholder of a
company appearing before him.

Social connections also impute a likelihood of bias i.e. where a case involves blood relations.
Political affiliation has been said to bring about an element of bias. However in most cases,
the courts have tended to ignore political affiliation becaue to do so would lead to
disqualification of some of the judges whose political affiliation is known from hearing such
matters.

Where a person is a complainant, prosecutor, witness or judge—a combination of any tow is

a clear element of sitting in judgement of one’s cause. In Ndegwa v Nairobi Licencing Board;
some of the members of the liquor lincencing board toured the premises and gave evidence
of their findings, participated in the judgement and denied the applicant a licence. They
acted as witnesses, and judge which was therefore clear evidence of bias.

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There are two major aspects to this rule:

The adjudicator must not have any financial or proprietary interest in the outcome of the
proceedings.

The adjudicator must not be reasonably suspected of or show a real likelihood of bias.(Non
pecuniary interest)

Pecuniary Interest

No matter how small the adjudicator’s Pecuniary Interest may be, or no matter how unlikely
it is to affect his judgement, he is disqualified from taking part in the hearing and any
decision which he makes will be set aside. A person with such an interest is conclusively
presumed to be biased and the courts will not inquire into whether or not he actually was.
In R – V – Hendon RDC ex. P. Chorley [1933] to KB 696, the Council’s decision was
invalidated because one of the counsellors who participated in the decision was the estate
agent of one of the parties to the transactions which formed the subject of the decision.

None Pecuniary Interest

The test that is usually applies in cases where, although there is no pecuniary interest, there
is some kind of relationship between the adjudicator and one of the parties that might lead
to a biased decision has two aspects:

Is there a real likelihood of bias?

Is there a reasonable suspicion of bias?

It should be emphasised that there is no need to prove actual bias.

In R – V – London Rent Assessment Committee, ex. P. Metropolitan Properties Company

limited [1969] 1 QB 577, Lord Denning observed that:

“In considering whether there was a real likelihood of bias, the code does not look at the
mind of ...how ever it may be that seats in a judicial capacity. It does not look to see if there
was areal likelihood that he would or did in fact favour one side at the expense of the other.
The court at the impletion which would be given to other people. ... There must be
circumstances from which a reasonable man would think it likely or probable that the justice
or chairman ... would or did favour one side unduly at the expense of the other. The court
will not inquire whether he did, in fact, favour one side unduly. Suffice it that reasonable
people might think he did”.

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Lord Denning relied on the famous dictum of Lord Hewart C J in R – V – Sussex Justices ex.
P. McCarthy [1924] 1 KB 256 at 259, which is to the effect that: “Justice should not only be
done, but should manifestly and undoubtedly be seen to be done”.

Thus in Re-Medicament (2001) 1. WLR where the court of appeal emphasised that what
matters is the appearance of the matter to an outsider i.e. would a member of the public,
looking at the situation as a whole, reasonably suspect that the member of the adjudicating
body would be biased. In this case, during the course of the tribunal proceedings, one of the
members of the tribunal, Dr. R approached an economic consultancy firm to ask if they
would consider employing her. Dr. R later realised that one of the directors of the firm, was
an expert witness on behalf of applicants in the case. When she was asked to withdraw her
self from hearing the case, she insisted that she retained the independence of mind required
of a member of the court. Her fellow members of the tribunal agreed with her and the
hearing proceeded. Nevertheless, on application for judicial review by the applicants, the
tribunal’s decision was quashed on grounds of failure of natural justice, basing on the
reasonable suspicion of bias on the part of Dr. R.

In Hannam V Bradford City Council [1970] 1 WLR 937, H was teacher at a school maintained
by the city council, and 3 of the members of the council committee were also members of
the school board of governors. The Court of Appeal upheld H’s contention that there was
bias.

The test of bias must be applied realistically. For example, in cases where a person is charged
before a disciplinary body of an organisation with bringing that organisation into disrepute,
or with breaching its code of professional conduct, the interest of members of that
organisation in its repute cannot be a disqualifying interest. Thus in Sikabuza v. Director of
surveys [1960] EA 808; the applicant’s licence had been cancelled by the survey licensing
board on ground of professional misconduct. He appealed on the grounds that the
composition of the board did not meet the requirements of natural justice, since it was
composed of the director of surveys and 3 other members, 2 of whom were fellow
surveyors. The appellant contented that the 2 surveyors on the board were his competitors
in business and were therefore sitting in judgement of their own cause. The court rejected
his argument and held that the mere fact that an interested party sits on a disciplinary body
does not necessarily conflict with the requirements of natural justice.

The most important thing to consider before one disqualifies himself/herself from hearing
any matter is whether his judgement is likely to be seen as biased not whether he is likely to
be biased.

REMEDIES (JUDICIAL REMEDIES)

These are remedies that an aggrieved person may obtain from a court of law, namely the
High Court. Section 14 of the Judicature Act Cap 13 grants the high court unlimited original

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jurisdiction in all matters and appellate or other jurisdiction as may be conferred by the
constitution on any other law. They include the following

Claim for the enforcement of Human Rights: Article 42 of the 1995 constitution provides that
any person appearing before an administrative official or body has a right to be treated justly
and fairly and shall have the right to apply to a Court of Law in respect of any administrative
decision taken against him or her. See also article 50.

Appeals: Appeals lie from most Statutory tribunals and other administrative bodies to the
high court. For example from the Dicisplinary Tribunals of the Law Council and Dental
Practioners Council etc. It must be born in mind that the right of appeal is always a creature
of statute and there is no inherent common law right of appeal.

Prerogative orders: These are special Administrative Law remedies specifically designed for
the enforcement of the government duties and powers. These remedied are certiorari,
prohibition and mandamus.

CERTIORARI AND PROHIBITION

The present law governing judicial review of administrative action, certiorari issues to quash
a decision which is ultra vires or invalid for error on the face of the record. Section 36 of the
Judicature Act Cap 13, provides for prerogative orders, including certiorari, removing any
proceedings or matter into the high court. Subject to any rights of appeal, such an order
once made shall be final.

In the case of In Re the Milling Ordinance (1954) 2 TLR 192. The East African Court of Appeal
clarified on the grounds on which certiorari will lie,
- Certiorari does not lie in order to enable re-hearing of the issue raised in the proceeding

-It exists to correct an error of law where revealed on the face of the record.

-To correct an irregularity in the proceedings.

-To correct an absence of excess of jurisdiction.

In Lex Uganda Advocates & solicitors v Attorney General H.C Misc Appl.No322 0f 2008, the
court granted an order of Certiorari to quash a decision of the Law Council requiring the
applicant to change its name and drop the use of the word “Uganda” from the said firm
name.

Prohibition developed along side certiorari. It is a similar remedy to certiorari but it is

prospective rather than retrospective, i.e. whereas certiorari issues to quash a decision that
has already been made, prohibition will issue to prevent future act or decision from being
made. It is used to prevent tribunals from meddling with cases over which they have no
jurisdiction. It is also provided for under section 36 of the Judicature Act, which provides
that the High Court may grant an order prohibition, prohibiting any proceedings or matter. In

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R V Electricity Commissioners exp. London Electricity Joint Committee Co. Ltd [1924]1 KB
206, Lord Atkin said:

“I can see no difference in principle between certiorari and prohibition, except that the latter
may be invoked at an earlier stage. If the proceedings establish that the body complained of
is exceeding its jurisdiction by entertaining matters which would result to its final decision
being subject to being brought up and quash on certiorari, i think prohibition would lie to
restrain it from its jurisdiction.”

In R V Kent Police Authority [1971] 2 QB 662, Prohibition was granted to prevent a biased
adjudicator from taking part in a decision.

MANDAMUS

It means “we command”, It is an order which compels the performance of a public duty by a
public authority. It is also provided by for section 36 of the Judicature Act.

In case of Fr. Francis Bahikirwe Muntu and 15 others V Kyambogo University H.C Misc.
APPL. N0 643 of 2005. The applicants members of Kyambogo University Academic Staff
Association brought an application for prerogative orders by way of Judicial Review, seeking
orders of certiorari injunction and Mandamus among others. The court issued an order of
Mandamus directing the respondent to strictly comply with the Constitution as well as the
Universities and Other Tertiary Institutions (Amendment) Act 7 of 2003 while integrating and
recruiting into service of the University its former employees.

The court held that the right to apply for Judicial Review is now constitutional in Uganda.
Article 42 gives one, before an administrative official or body a right to be treated justly and
fairly with the right to apply to a court of law regarding an administrative decision taken
against such one. The right to a just and fair treatment in an administrative decision cannot
be derogated according to Article 44.That the grounds that an applicant must satisfy in order
to succeed in a Judicial Review application are illegality, irrationality and procedural
impropriety.

In Pius Nuiwagaba v Law Development Centre H.C Civil Application No589 of 2005. The
applicant was a Law graduate from the Uganda Pentecostal University applied for admission
to the Respondent who denied the applicant and other applicants from the said University
on ground that their University had not been accredited by the Law Council. The Applicant
applied for Judicial Review of the Respondent’s decision and sought prerogative orders of
certiorari and mandamus, which the court granted.

The learned trial judge allowed the application and declared that the sidelining of the
application by the applicant on account of his School of origin was discriminatory, unfair and
biased and without justification. An order of certiorari was issued to quash the decision of

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the Respondent against the applicant. The Court also granted an order of mandamus to
compel the Respondent to admit the applicant and other applicants from that University.

Other judicial remedies:

These include both equitable remedies and ordinary remedies. Equitable remedies include
injunctions and declarations, whereas ordinary remedies refer to damages.

Injunctions may be granted in Administrative Law against Public bodies to prevent them
from acting ultra vires. They are provided for by Section 38 of the Judicature Amendment
Act of 2002 which provides that an injunction may be granted to restrain a person form
acting in any office in which he/she is not entitled to act. In the case of Attorney v Fulham
Corporation [1921]1 Ch.440, where an injunction was granted to stop the defendant
corporation from acting in excess of its jurisdiction.

Declarations are very useful remedies against public authorities. A declaration is an order of
court which merely declares what the legal rights of the parties are without changing them.
Declarations are also provided for under section 38 of the Judicature Amendment Act 2002.

END

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