Wakilii

NC Bank Ltd 24 Ors v Kampala Capital City Authority Anor (MISCELLANEOUS CAUSE NO 2 OF 2018)

High Court · [2019] UGHCCD 71 · 2019 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for judicial review under Judicial Review Rules 2009 seeking certiorari and prohibition against statutory instrument requiring banks to pay trade licensing fees
Decision
Certiorari issued quashing trade licensing fees on banks; trade licensing fees upheld for ATMs located away from bank premises; temporary injunction vacated

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains 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 High Court held that the Minister acted ultra vires the Trade (Licensing) Act as amended when she included banks in the Amendment Schedule 2 of 2017 requiring them to pay trade licensing fees, as banking business does not fall within the definition of trading or selling services under the Act and is specifically regulated by the Financial Institutions Act. However, the court upheld the requirement for trade licensing fees on ATM machines located away from bank premises, as these render a service not regulated by the Financial Institutions Act.

Outcome

Certiorari issued quashing trade licensing fees on banks; trade licensing fees upheld for ATMs located away from bank premises; temporary injunction vacated

Facts

The twenty-five applicants, all licensed banks, challenged Statutory Instrument 2 of 2017 which required them to pay trade licensing fees under the amended Trade (Licensing) Act. The Trade (Licensing) Amendment Act 27 of 2015 had repealed section 8(2)(f) which exempted businesses requiring separate licenses. The Minister of Trade, Industry and Cooperatives then made S.I. 2 of 2017 requiring banks to pay trade license fees (items 25 and 28 in Part A for banks in municipalities/towns, items 20 and 23 in Part C for Kampala) and separate fees for ATM machines. The applicants argued they were already licensed, regulated and supervised by the Central Bank under the Financial Institutions Act 2004, and that requiring additional trade licensing fees amounted to double collection of revenue and was ultra vires the Minister's powers. KCCA and the Attorney General defended the instrument as lawful under the amended Act.

Issues

  1. Whether the application raises issues for judicial review.
  2. Whether items 25 and 28 (Part A) and items 20 and 23 (Part C) of Statutory Instrument 2 of 2017 are unlawful for being ultra vires the Trade (Licensing) Act Cap 101 as amended by Act 28 of 2015.
  3. Whether items 25 and 28 (Part A) and items 20 and 23 (Part C) of Statutory Instrument 2 of 2017 are irrational and unfair.
  4. Whether item 28 (Part A) and item 23 (Part C) of the Trade (Licensing) Amendment Schedule requiring trade licensing fees for ATM machines are irrational and unfair.

Orders

  • A writ of certiorari will issue quashing Item 25 of Part A and Item 20 of Part C of the Amendment Schedule that authorises levying of trade license fees on banks for being ultra vires the Trade (Licensing) Act as amended.
  • Item 28 of Part A and Item 23 of Part C that authorises levying of license fees on ATMs is intra vires the Trade (Licensing) Act to the extent that trading licenses will be levied only on those ATMs located away from bank premises.
  • The license fees on ATMs identified under order (2) above shall become payable from the date of demand by the Local Authority or KCCA.
  • The respondents are prohibited from levying license fees on banks under the Amendment Schedule 2 of 2017.
  • The temporary injunction issued on 30th April 2018 is hereby vacated.
  • 70% of the taxed costs of this application will go to the applicants who have been successful on the substantive issues 1 and 2 to be paid by both respondents severally and jointly.

Rules and key headnotes

Judicial Review — Delegated Legislation — Challenge to Statutory Instrument
Delegated legislation does not have the status of primary legislation, and a statutory instrument made by a Minister is subject to judicial review as it is the instrument of a public official empowered by the enabling Act.
Ultra Vires — Limits of Ministerial Power under Enabling Legislation
A Minister acting under delegated authority to amend a schedule must act within the scope and spirit of the enabling Act; where the parent Act does not expressly name or define a category of business as falling within its regulatory ambit, including that category in a statutory instrument is ultra vires the Minister's powers.
Generalia Specialibus Rule — Specific Legislation Prevails Over General Legislation
Where specific legislation regulates a particular subject matter and imposes no restrictions, it takes precedence over general legislation that might be construed to apply; specific regulatory legislation governing banks under the Financial Institutions Act prevails over general trade licensing legislation.
Banking Business — Definition and Scope under Financial Institutions Act
Banking business as defined in the Financial Institutions Act encompasses accepting deposits from the public, employing such deposits by lending for the account and risk of the person accepting deposits, and presenting to another bank cheques, drafts or orders received from customers; this definition does not bring banking within the meaning of 'trade' or 'sell' under trade licensing legislation.
ATM Machines — Licensing Requirements Separate from Banking License
ATM machines located away from bank premises do not constitute branch offices under the Financial Institutions Act and do not carry out banking business but simply render the service of dispensing money; such machines may lawfully be subject to separate trade licensing fees as a service under trade licensing legislation.

Legislation cited (13)

Cases cited (6)

  • Amal v Equal Opportunities Commission (High Court Miscellaneous Cause No. 233 of 2016)
  • Bank Mellat v Her Majesty's Treasury (No. 2) [2014] AC 700
  • Kampala Private Medical Professionals v Attorney General (High Court Miscellaneous Application No. 552 of 2017)
  • Stanbic Bank Ltd and Others v Attorney General (High Court Miscellaneous Application No. 645 of 2011)
  • Amrit Goyal v Hari Chand Goyal (Commercial Court Civil Suit No. 432 of 2001)
  • Woolwich Building Society v Inland Revenue Commissioner (No. 2) [1991] All ER 577

Full judgment

↓ Download PDF

The original judgment as reported. Read the original PDF before relying on any passage.

NC Bank Ltd 24 Ors v Kampala Capital City Authority Anor (MISCELLANEOUS CAUSE NO 2 OF 2018) 2019 UGHCCD 71 (25 February 2019)
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.