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Freeman and Others v Attorney General (Miscellaneous Cause No. 262 of 2013)

High Court · [2013] UGHC 286 · 2013 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for judicial review of a magistrate's court order requiring production of a letter. Respondent raised preliminary objections to the jurisdiction of the High Court to entertain the application.
Decision
Application for judicial review dismissed in respect of the 1st to 4th Applicants (natural persons). 5th Applicant (company) may proceed with the application.

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Holding

The High Court held that judicial review jurisdiction is sui generis and that orders of subordinate courts, including magistrates' courts, are amenable to judicial review. However, where alternative statutory remedies exist that have the same effect as the judicial review remedy sought, an applicant must exhaust those remedies first. The Court upheld the preliminary objection in respect of the 1st to 4th Applicants, who were parties to criminal proceedings and had an alternative remedy of revision under Criminal Procedure Code Act sections 48 and 50. The objection failed in respect of the 5th Applicant, a corporate entity not party to the lower court proceedings and not covered by the Criminal Procedure Code Act, which could proceed with its application for judicial review.

Outcome

Application for judicial review dismissed in respect of the 1st to 4th Applicants (natural persons). 5th Applicant (company) may proceed with the application.

Facts

The 1st to 4th Applicants are employees of the 5th Applicant, Monitor Publications Ltd, a media company. The Applicants sought judicial review of an order made by a Senior Magistrate Grade I in criminal proceedings requiring production of a letter titled "Proposed Investigations" purportedly authored by General Sejusa David and published in the Daily Monitor. The underlying proceedings arose from a criminal investigation by the Media Crimes Department of CID Headquarters relating to the publication of the letter on 7th May 2013. The Attorney General raised preliminary objections that the Applicants had not exhausted alternative remedies (appeal, review, or revision) as required by Section 36(5) of the Judicature Act, and that the magistrate's order was not amenable to judicial review.

Issues

  1. Whether there are alternative remedies in terms of Section 36(5) of the Judicature Act that bar the High Court from granting judicial review remedies.
  2. Whether the order by a Senior Magistrate Grade I is amenable to judicial review.
  3. Whether individual applicants (1st to 4th) who were party to criminal proceedings must first exhaust the remedy of revision under the Criminal Procedure Code Act before seeking judicial review.
  4. Whether the 5th Applicant, a corporate entity not party to the lower court criminal proceedings, can proceed with judicial review.

Orders

  • Preliminary objection upheld in part in respect to the 1st, 2nd, 3rd and 4th Applicants as there is an alternative remedy by way of revision under the Criminal Procedure Code Act.
  • Preliminary objection fails in respect to the 5th Applicant.
  • The 5th Applicant may proceed with the application for judicial review if it is in its best interest to do so.
  • Each party to bear their/its own costs.

Rules and key headnotes

Judicial Review — Jurisdiction — Judicial review as sui generis jurisdiction
Judicial review is a jurisdiction sui generis, meaning it is of its own kind or class, and is neither a civil nor criminal jurisdiction in the strict sense.
Judicial Review — Alternative Remedies — Exhaustion requirement under Section 36(5) Judicature Act
Where alternative statutory remedies are available that have the same effect as the judicial review remedy sought, an aggrieved party must exhaust those remedies first before seeking judicial review, pursuant to Section 36(5) of the Judicature Act.
Criminal Procedure — Revision — Availability where no right of appeal exists
Under Section 50(1)(b) and 50(5) of the Criminal Procedure Code Act, a person aggrieved by an order (other than acquittal) made by a magistrate's court may petition the High Court to exercise its powers of revision, but no such petition shall be entertained where the petitioner could have appealed and has not done so. Where no right of appeal exists, the remedy of revision is available.
Judicial Review — Amenability — Subordinate courts and magistrates' courts
Orders made by subordinate courts, including magistrates' courts and the conduct of their presiding officers, are amenable to judicial review. A magistrate's court is a lower court within the meaning of the Judicature (Judicial Review) Rules 2009.
Judicial Review — Scope — Test for determining whether a body is subject to judicial review
For a decision to be susceptible to judicial review, the decision-maker must be empowered by public law to make decisions that, if validly made, will lead to administrative action or abstention from action by an authority endowed with executive powers, and that decision must affect the private rights of some person or deprive another of some benefit or legitimate expectation. The test depends on the nature and consequences of the decision, not merely the source of power or the personality of the decision-maker.
Civil Procedure — Preliminary Objections — Definition and requirements
A preliminary objection consists of a point of law which has been pleaded or arises by clear implication out of the pleadings, and which if argued as a preliminary objection may dispose of the suit. It is in the nature of a demurrer, raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.
Criminal Procedure — Review and Revision — Inapplicability of Civil Procedure Act to criminal proceedings
The remedies of review and revision provided under the Civil Procedure Act and Civil Procedure Rules apply only to civil proceedings and are inapplicable to orders emanating from criminal proceedings. The Criminal Procedure Code Act provides the applicable framework for revision in criminal matters.

Legislation cited (13)

Cases cited (4)

  • Republic v Chairman Electoral Commission of Kenya exparte Welamondi Jotham (2008) 2 KLR 398
  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696
  • Re Mustapha Ramathan (Civil Appeal No. 25 of 1996)
  • Leech v Deputy Governor of Parkhurst Prison [1988] 1 All ER 485

Full judgment

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Freeman and Others v Attorney General (Miscellaneous Cause No. 262 of 2013) [2013] UGHC 286 (12 June 2013)
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.