Wakilii

Ssejemba v Attorney General (Constitutional Petition No. 37 of 2014)

Constitutional Court · [2021] UGCC 28 · 2021 Petition Allowed in Part ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137(3) challenging the constitutionality of the Judicature (Small Claims Procedure) Rules, 2011
Decision
Petition allowed in part: Rules 8 and 24 of the Judicature (Small Claims Procedure) Rules declared unconstitutional; the claim that the Rules' silence on appeal is unconstitutional was rejected.

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment
Cited — treatment unverified cited in 6 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The petitioner challenged the Judicature (Small Claims Procedure) Rules, 2011 for failing to provide a right of appeal and for barring legal representation. The Constitutional Court held that the Rules' silence on appeals does not contravene Article 139(2), because the right of appeal is conferred by the Constitution, the Judicature Act and the Magistrates Courts Act, which take precedence over the subordinate Rules; a review cannot substitute for an appeal. However, Rules 8 and 24, which prohibit legal representation and cross-examination, contravene the right to a fair hearing under Articles 28 and 44, a non-derogable right, and are unconstitutional. The petition was allowed in part, each party to bear its own costs.

Facts

The petitioner received summons in Small Claim No. 107 of 2014 before the Chief Magistrate's Court at Makindye, in which a claimant sought to recover shs. 9,523,400. He approached advocates to represent him but was told they could not appear because Rule 8 of the Judicature (Small Claims Procedure) Rules, 2011 bars advocates from appearing in small claims matters. On examining the Rules, the petitioner found that a magistrate's decision in small claims is final, with no right of appeal; only review by the same magistrate is available. He petitioned the Constitutional Court under Article 137(3) seeking declarations that the Rules contravene the right of appeal under Article 139(2) of the Constitution, section 16(1) of the Judicature Act and section 220(1) of the Magistrates Courts Act, and the non-derogable right to a fair hearing under Article 28 by failing to provide for legal representation during trial, review and appeal.

Issues

  1. Whether the petition discloses any issues for constitutional interpretation.
  2. Whether the Judicature (Small Claims Procedure) Rules, 2011 violate the right to appeal guaranteed under Article 139(2) of the Constitution, section 16(1) of the Judicature Act and section 220(1) of the Magistrates Courts Act.
  3. Whether the Judicature (Small Claims Procedure) Rules, 2011 contravene the right to a fair hearing under Article 28 of the Constitution by failing to provide for legal representation of an aggrieved person during hearing.
  4. Whether the petitioner is entitled to the reliefs sought.

Orders

  • The failure of the Judicature (Small Claims Procedure) Rules to provide for the right of appeal does not contravene the right of appeal under Article 139(2) of the Constitution, section 16(1) of the Judicature Act Cap 13 and section 220(1) of the Magistrates Courts Act Cap 16.
  • Rules 8 and 24 of the Judicature (Small Claims Procedure) Rules contravene the right to a fair hearing under Articles 28 and 44 of the Constitution in so far as they prohibit the right to legal representation and cross-examination of parties and witnesses.
  • Each party shall bear its own costs.

Key headnotes

Constitutional Law — Constitutional Petitions — Disclosure of issues for constitutional interpretation
A petition brought under Article 137(3) of the Constitution sufficiently discloses a cause of action where it describes the act or omission complained of and identifies the constitutional provision with which the act or omission is alleged to be inconsistent.
Civil Procedure — Right of Appeal — Creature of statute
A right of appeal is a creature of statute that cannot be inferred or implied; appellate jurisdiction may be exercised only where it is expressly conferred by statute.
Statutory Interpretation — Subsidiary Legislation — Relationship to parent statute
Subsidiary legislation cannot defeat or override the clear provisions of an Act of Parliament, and an Act of Parliament cannot be amended by subsidiary legislation; the silence of subordinate rules on a right conferred by the Constitution and statutes does not extinguish that right nor render the rules unconstitutional.
Civil Procedure — Review and Supervisory Powers — Distinguished from appeal
A review is not equivalent to and cannot substitute for an appeal; the supervisory powers conferred on the High Court over magistrates' courts are administrative in nature and their exercise cannot amount to an appeal.
Human Rights — Fair Hearing — Right to legal representation in civil proceedings
The right to a fair hearing under Article 28, a non-derogable right under Article 44 of the Constitution, includes the right of a party in a civil matter to appear by counsel at his or her own expense; a rule barring legal representation where a party is willing to pay for it fetters that constitutional right and is unconstitutional.
Human Rights — Fair Hearing — Right to cross-examination
The right to cross-examine witnesses is at the core of the right to a fair hearing under Article 28 of the Constitution; a rule prohibiting cross-examination of parties and witnesses contravenes that non-derogable right and is unconstitutional.

Legislation cited (25)

  • Constitution of Uganda Article 2(2)
  • Constitution of Uganda Article 28
  • Constitution of Uganda Article 40(2)
  • Constitution of Uganda Article 44
  • Constitution of Uganda Article 126
  • Constitution of Uganda Article 137
  • Constitution of Uganda Article 139(1)
  • Constitution of Uganda Article 139(2)
  • Judicature Act Cap 13 s.16(1)
  • Judicature Act Cap 13 s.17(1)
  • Judicature Act Cap 13 s.17(2)
  • Judicature Act Cap 13 s.40
  • Judicature Act Cap 13 s.41
  • Magistrates Courts Act Cap 16 s.220(1)
  • Magistrates Courts Act Cap 16 s.229
  • Advocates Act Cap 267 s.11(3)
  • Judicature (Small Claims Procedure) Rules 2011 Rule 4(4)
  • Judicature (Small Claims Procedure) Rules 2011 Rule 5
  • Judicature (Small Claims Procedure) Rules 2011 Rule 8(2)
  • Judicature (Small Claims Procedure) Rules 2011 Rule 8(3)
  • Judicature (Small Claims Procedure) Rules 2011 Rule 24
  • Judicature (Small Claims Procedure) Rules 2011 Rule 25
  • Judicature (Small Claims Procedure) Rules 2011 Rule 26
  • Judicature (Small Claims Procedure) Rules 2011 Rule 30
  • International Covenant on Civil and Political Rights Article 14

Cases cited (28)

  • Ismail Serugo v Kampala City Council (Constitutional Appeal No. 2 of 1998)
  • Baku Raphael & Obiga Kania v Attorney General (Constitutional Appeal No. 1 of 2003)
  • Baku Raphael Obudra and Another v Attorney General (Supreme Court Constitutional Appeal No. 1 of 2005)
  • Raila Odinga & 6 Others v Nairobi City Council (Nairobi HCCC No. 899 of 1993) [1990-1994] EA 482
  • Prudential Ins. Co. v Small Claims Court, 76 Cal. App. 2d 379 (1946)
  • Roberts v Anderson, 66 F.2d 874
  • Charles Harry Twagira v Uganda (Supreme Court Criminal Appeal No. 27 of 2003)
  • Mpungu & Sons Transporters Ltd v Attorney General & Anor (Supreme Court Civil Appeal No. 17 of 2001)
  • Russell v Norfolk [1949] 1 All ER 109
  • Godfrey Nyakaana v National Environment Management Authority and Others (Supreme Court Civil Appeal No. 5 of 2011)
  • Saleh Kamba & Anor v Attorney General & Others (Constitutional Petition No. 16 of 2013)
  • Kizza Besigye v Y.K. Museveni (Supreme Court Presidential Election Petition No. 2 of 2006)
  • Brigadier Henry Tumukunde v Attorney General and Another (Supreme Court Constitutional Appeal No. 2 of 2006)
  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
  • P.K. Ssemwogerere & Another v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Attorney General of Tanzania v Rev. Christopher Mtikila [2010] E.A 13
  • Okello Okello John Livingstone and 6 Others v Attorney General and Another (Constitutional Petition No. 1 of 2005)
  • Kizza Besigye v Attorney General (Constitutional Petition No. 1 of 2006)
  • South Dakota v South Carolina 192 U.S.A 268, 1940
  • Major General David Tinyefuza v Attorney General (Constitutional Petition No. 1 of 1996)
  • Hamam Singh and Co. v Jamna Karsan (1953) 20 EACA 17
  • Agarwal Ayengar & Co. v State, AIR 1951 Bom 397
  • Bénisch v Austria 1991) 13 E.H.R.R. 409 [1986] E.C.H.R. 8658/79
  • R v Big M Drug Mart Ltd [1986] LRC (Const) 332
  • McGowan v Maryland, 366 US 420 (1961)
  • Flour City Fuel & Transfer Co. v Young, 150 Minn 452, 185 N.W. 934
  • Marko Matovu & 2 Others v Sseviri & Another (Civil Appeal No. 7 of 1978)
  • Abbott v Sullivan [1952] 1 All ER 226
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.