Wakilii

Katuntu v MTN UGANDA LTD & Anor (HCCS 248 of 2012)

High Court · [2015] UGCOMMC 83 · 2015 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Preliminary objection to plaint on grounds that it discloses no cause of action and plaintiffs lack locus standi
Decision
Plaint rejected; preliminary objection upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court struck out the plaintiffs' suit on the grounds that they lacked locus standi and the plaint disclosed no cause of action. The plaintiffs sued as concerned citizens claiming an interest in the regulation of mobile money services and promotions, citing article 17 of the Constitution. The court held that article 17 prescribes only duties and does not confer a right of action. The suit did not allege violation of fundamental rights under article 50, was not brought for judicial review of administrative action under article 42, and did not seek constitutional interpretation under article 137. The court concluded that the plaintiffs had not exhausted available remedies before the Uganda Communications Commission Tribunal, that matters of licensing fell outside the High Court's first instance jurisdiction, and that the classification of financial institutions is a statutory matter not subject to court expansion without legislative action.

Outcome

Plaint rejected; preliminary objection upheld

Facts

The plaintiffs, a Member of Parliament and an end-user of mobile money services, sued seven defendants claiming to act in the public interest and under article 17 of the Constitution. They sought declarations that mobile money services operated by the first to fifth defendants (telecom companies) constituted financial institution business under the Financial Institutions Act 2004 and were outside the scope of their telecommunications licences granted by the Uganda Communications Commission (seventh defendant). They also alleged that certain promotions amounted to gaming under the law. The plaintiffs sought orders for technical audits, refunds, and directives for the Bank of Uganda (sixth defendant) and Uganda Communications Commission to formulate proper regulations. The defendants raised preliminary objections contending that the plaint disclosed no cause of action and the plaintiffs lacked locus standi.

Issues

  1. Whether the plaintiffs have locus standi to bring the action against the defendants.
  2. Whether the plaint discloses a cause of action against the defendants.
  3. Whether the action is properly brought as a public interest suit and whether it should have been brought under article 50 of the Constitution.
  4. Whether the suit should have been commenced by way of judicial review rather than ordinary suit.
  5. Whether mobile money services fall within the definition of financial institution business under the Financial Institutions Act 2004.
  6. Whether the orders sought by the plaintiffs are moot, academic, and incapable of enforcement.

Orders

  • Plaint rejected under Order 7 rule 11(a) of the Civil Procedure Rules for disclosing no cause of action.
  • Each party to bear own costs of the suit.

Rules and key headnotes

Locus Standi — Cause of Action — Test for Disclosure
In determining whether a plaint discloses a cause of action, the court looks only at the plaint and assumes that the facts alleged in it are true; the written statement of defence is immaterial to this determination.
Citizenship — Duties of Citizens Under Article 17 — No Right of Action Conferred
Article 17 of the Constitution prescribes the duties of citizens of Uganda but does not confer upon citizens a right of action to file suit for enforcement of those duties in court.
Public Interest Litigation — Article 50 — Requirement to Plead Infringement of Fundamental Rights
For a suit to be maintainable as a public interest action under article 50 of the Constitution, it must claim that a fundamental right or freedom guaranteed under chapter 4 of the Constitution has been infringed or threatened; article 50(2) permits any person or organisation to bring an action for violation of another person's or group's human rights, but only in respect of such fundamental rights or freedoms.
Locus Standi — Public Interest Suits — Test of Sufficient Interest
In public interest litigation outside the enforcement of fundamental rights and freedoms under article 50, the simple test for locus standi is sufficient interest; the applicant must show that he is a citizen, has sufficient interest in the matter and is not a mere busy body, that the issues raised are sufficiently grave and of public importance, and that the court is approached as a last resort after exhausting other available remedies.
Judicial Review — Exhaustion of Alternative Remedies — Statutory Tribunals
Where Parliament has prescribed a procedure for appeals or reviews before another judicial or quasi-judicial body, such as a statutory tribunal with jurisdiction over the subject matter, the court should not allow another process to be used to attack the decision; an applicant must first exhaust those remedies before resorting to court.
Financial Institutions — Licensing — Definition of Financial Institution Business
A financial institution under the Financial Institutions Act 2004 is defined as a company licensed to carry on or conduct financial institution business; the Act applies only to licensed financial institutions and expressly provides that carrying on financial institution business without a licence is a criminal offence; the court cannot expand the statutory definition of a financial institution to include unlicensed persons without entering the realm of legislation.
Telecommunications Licensing — Jurisdiction of Statutory Tribunal — Matters Relating to Licences
The Uganda Communications Commission Tribunal established under the Uganda Communications Act has exclusive first instance jurisdiction to hear all matters relating to telecommunications services under the Act, including questions as to breach of a licence or acting outside the scope of a licence; an appeal lies from the Tribunal to the Court of Appeal, and the High Court is not properly moved in the first instance on such matters.

Legislation cited (33)

Cases cited (30)

  • Auto Garage v Motokov (No. 3) (1971) EA 514
  • Pastor Martin Sempa v Attorney General (HCMA No. 71 of 2002)
  • Midland Silicons Ltd v Scruttons [1962] AC 446
  • Eric Barare Orina v Minister of Finance and Five Others (Petition No. 94 of 2010)
  • Joseph Borowski v Attorney General of Canada (1989) 1 SCR 342
  • Human Rights Network of Journalists and Another v Uganda Communications Commission and 6 Others (HCMC No. 219 of 2013)
  • Environmental Action Network Ltd v Joseph Eryau (Civil Application No. 98 of 2008)
  • Kikungwe Issa and Others v Standard Bank Investment Corporation and Three Others (HCCS No. 0394 and 0395 of 2014)
  • Ogago Brian Abangi v Uganda Communications Commission (HCMA No. 267 of 2013)
  • Major General David Tinyefuza v Attorney General (Constitutional Appeal No. 1 of 1997)
  • Legal Brains Trust (LBT) Ltd versus Attorney General
  • R v Inland Revenue Commissioners Ex Parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617
  • Environmental Action Network Ltd v Attorney General and Another (HCMA No. 39 of 2001)
  • All Sisters Company Ltd v Guangzhou Tiger Head Battery Group Company Ltd (HCCS No. 128 of 2010)
  • James Katabazi and 21 Others v Secretary-General of the East African Community and Another (Reference No. 1 of 2007)
  • Engineer Yashwant Sidpra and Another v Sam Ngude Odaka (HCCS No. 365 of 2007)
  • Bank of Uganda v COWE (Civil Appeal No. 35 of 2007)
  • Attorney General v Oluoch (1972) EA 392
  • Ismail Serugo v Kampala City Council and the Attorney General (Constitutional Appeal No. 2 of 1998)
  • Re Nakivubo Chemists [1979] HCB 12
  • Ex parte Side Botham, re Side Botham (1880) 14 Ch D 458
  • Attorney General of Gambia v N'jie [1961] AC 617
  • Attorney General v Independent Broadcasting Authority [1973] All ER 689
  • R v Police Commissioner of the Metropolis Ex parte Blackburn [1968] 1 All ER 763
  • R v Greater London Council, ex parte Blackburn [1976] 3 All ER 184
  • R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd [1980] 2 All ER 378
  • Saggu v Roadmaster Cycles (U) Ltd [2002] 1 EA 258
  • Kawuki Mathias v Commissioner General Uganda Revenue Authority (HCMA No. 14 of 2014)
  • R v Chief Constable of the Merseyside Police, ex parte Calveley and Others [1986] 1 All ER 257
  • Preston v IRC [1985] 2 All ER 327

Full judgment

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Katuntu v MTN UGANDA LTD & Anor (HCCS 248 of 2012) [2015] UGCommC 83 (29 May 2015)
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.