Wakilii

In The matter Of Application For an Order Of Certiorari and or Prohibition By Mustapha (Miscellaneous Application 230 of 1996)

High Court · [1996] UGHC 68 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Ex-parte application for leave to apply for orders of certiorari and prohibition under sections 34, 35 and 36 of the Judicature Act 1967
Decision
Application dismissed with indication that applicant may pursue statutory appeal remedy

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the ex-parte application for leave to apply for prerogative orders of certiorari and prohibition. The application for certiorari against the Minister of Finance was statute-barred, having been filed after the six-month limitation period under section 34(6) of the Judicature Act 1967. Additionally, the prerogative jurisdiction could not be invoked where a statutory appeal remedy existed under section 14 of the Expropriated Properties Act 1982. The writs sought against the Commissioner for Land Registration were inappropriate as the Commissioner acted ministerially in registering title pursuant to statute. The proper remedy lay in appealing under section 14 and seeking rectification under section 185 of the Registration of Titles Act.

Outcome

Application dismissed with indication that applicant may pursue statutory appeal remedy

Facts

The applicant, Mustapha Ramathan, a former Minister, purchased Plot 5 Mackenzie Vale in 1974 from the Departed Asian Custodian Board and was registered as proprietor. Following enactment of the Expropriated Properties Act 1982, the property was successfully claimed by the former owner, Tajdin Alidina Valimohamed, who was issued a repossession order by the Minister of Finance on 16 October 1995. The third respondent was registered as proprietor on 3 November 1995. The applicant remained in physical possession and was never compensated for loss of his proprietary interest. On 25 April 1996, the applicant filed an ex-parte application seeking leave to apply for orders of certiorari against the Minister and Commissioner for Land Registration, and prohibition against the third respondent, alleging infringement of constitutional rights through lack of prior compensation.

Issues

  1. Whether leave should be granted to apply for certiorari against the Minister of Finance when the application was filed outside the six-month statutory limitation period under section 34(6) of the Judicature Act 1967.
  2. Whether the prerogative jurisdiction of the court can be invoked where a statutory right of appeal exists under section 14 of the Expropriated Properties Act 1982.
  3. Whether writs of certiorari and prohibition are appropriate remedies against the Commissioner for Land Registration who acted ministerially pursuant to statute.
  4. Whether a writ of prohibition can issue against a third party registered proprietor to prevent taking possession of property.

Orders

  • Application dismissed.
  • Applicant may proceed to seek other remedies other than the prerogative writs for which leave was sought.

Rules and key headnotes

Judicial Review — Certiorari — Limitation Period
Under section 34(6) of the Judicature Act 1967 and rule 4 of the Law Reform (Miscellaneous Provisions) (Rules of Court) Rules, leave to apply for an order of certiorari to remove any judgment, order or decree for the purpose of its being quashed shall not be granted unless the application for leave is made not later than six months after the date of the proceeding. This limitation period is mandatory.
Prerogative Jurisdiction — Availability of Alternative Remedies
It is a well-established rule of practice that the prerogative jurisdiction of the court cannot ordinarily be invoked where a statutory remedy by way of appeal is available. The existence of a statutory right of appeal under section 14 of the Expropriated Properties Act 1982 precludes resort to prerogative writs.
Certiorari and Prohibition — Ministerial Acts
Writs of certiorari and prohibition are not appropriate remedies against an officer who acts ministerially pursuant to statutory duty without taking any decision in a proceeding. Where the Commissioner for Land Registration simply follows the mandatory provisions of statute to transfer title upon presentation of a repossession certificate, there is no decision to quash or prohibit.
Prohibition — Nature as Preventive Remedy
A writ of prohibition is by its nature a preventive remedy and not a corrective remedy. Where the act complained of has been completed, there is nothing to prohibit and the remedy is inappropriate. Prohibition may not issue after registration of title has been completed.

Legislation cited (9)

Cases cited (3)

  • Re An Application by Gideon Wawern Gatunguri [1962] E.A. 520
  • Re An Application by The Attorney General of Tanganyika [1958] E.A. 482
  • Kantibhai Aryat Kantitbhai Maribha Patel v Minister of Finance and Economic Planning (Miscellaneous Application No. 75 of 1994)

Full judgment

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In The matter Of Application For an Order Of Certiorari and or Prohibition By Mustapha (Miscellaneous Application 230 of 1996) [1996] UGHC 68 (21 May
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.