Wakilii

Stanbic Bank (U) Ltd & 3 Ors v Attorney General (HCT-00-CC-MA 645 of 2011)

High Court · [2011] UGCOMMC 118 · 2011 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for judicial review seeking orders of certiorari and prohibition to quash Items 25 and 28 of the Trade (Licensing) (Amendment of Schedule) Instrument SI No. 2 of 2011
Decision
Application for judicial review granted. Statutory instrument items quashed and respondent prohibited from implementing them against financial institutions.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that Items 25 and 28 of the Trade (Licensing) (Amendment of Schedule) Instrument SI No. 2 of 2011 contravene Section 8(2)(f) of the Trade (Licensing) Act and are ultra vires. Financial institutions licensed under the Financial Institutions Act No. 2 of 2004 are exempted from obtaining trading licences because they hold separate licences required under written law. The Minister exceeded his statutory powers in amending the Schedule to require banks to pay trade licence fees for branches and ATMs. Orders of certiorari and prohibition granted.

Outcome

Application for judicial review granted. Statutory instrument items quashed and respondent prohibited from implementing them against financial institutions.

Facts

The applicants are four banks licensed by the Central Bank of Uganda under the Financial Institutions Act No. 2 of 2004. On 29 December 2010, the Minister for Tourism, Trade and Industry issued the Trade (Licensing) (Amendment of Schedule) Instrument SI No. 2 of 2011, which amended Part A of the Schedule to the Trade (Licensing) Act by adding Items 25 and 28. These new items required banks to pay trade licence fees for each branch and each Automatic Teller Machine (ATM). The applicants contended that banking business is exempted from trade licensing requirements under Section 8(2)(f) of the Trade (Licensing) Act because banks are separately licensed under the Financial Institutions Act. The Attorney General opposed the application, arguing that the licences under the Financial Institutions Act are regulatory in nature and fundamentally different from trading licences, and that the purpose of the amendment was to allow local governments to collect revenue and control trade and business.

Issues

  1. Whether Items 25 and 28 of the Trade (Licensing) (Amendment of Schedule) Instrument SI No. 2 of 2011, which require banks to pay trade licence fees for each branch and ATM, contravene Section 8(2)(f) of the Trade (Licensing) Act.
  2. Whether the Minister acted ultra vires in amending the Schedule to include financial institutions.
  3. Whether financial institutions fall within the exemption provided by Section 8(2)(f) of the Trade (Licensing) Act as businesses for which a separate licence is required under another written law.
  4. Whether the licences issued under the Financial Institutions Act are the type of separate licences contemplated by Section 8(2)(f) of the Trade (Licensing) Act.

Orders

  • Items 25 and 28 of the Trade (Licensing) (Amendment of Schedule) Instrument SI No. 2 of 2011 are hereby quashed.
  • The respondent, his agents, servants, or any other person are prohibited from implementing Items 25 and 28 of the Trade (Licensing) (Amendment of Schedule) Instrument of 2011 against the applicants and other banks.
  • Costs of this application to be borne by the respondent.
  • Certificate for two counsel granted to the applicants.

Rules and key headnotes

Judicial Review — Certiorari and Prohibition — Statutory Instruments Ultra Vires Parent Legislation
Where a statutory instrument contravenes the provisions of its parent Act, the Minister acts ultra vires his powers in issuing such instrument, and the offending provisions are null and void and liable to be quashed by certiorari.
Literal Rule — Plain and Unambiguous Language — Adding Words to Statute
Where the meaning of statutory words is plain and unambiguous, it is not for the courts or administrative authorities to add words or invent fancied ambiguities as an excuse for failing to give effect to the statute's plain meaning, even if the consequences are considered inexpedient or if an omission appears inadvertent.
Trade Licensing — Exemption Under Section 8(2)(f) Trade (Licensing) Act — Financial Institutions
Financial institutions licensed under the Financial Institutions Act No. 2 of 2004 are exempted from obtaining trading licences under Section 8(2)(f) of the Trade (Licensing) Act because they are required to hold a separate licence under written law. The licence issued by the Central Bank of Uganda is the principal mandatory licence that validates their business.
Definition of 'Trade' and 'Trading' — Sale of Goods Distinguished from Provision of Services
Under the Trade (Licensing) Act, 'trade' and 'trading' are defined as the selling of goods for which a licence is required, whether by retail or wholesale. Banking business, which involves the provision of financial services rather than the sale of goods, does not fall within the definition of trade or trading under the Act.
Local Government Powers — Revenue Collection — Regulatory Licensing
Local governments may only collect fees and fines on licences and permits in respect of services rendered by them or regulatory powers exercised by them. The regulation and licensing of financial institutions is the responsibility of the Central Bank under the Financial Institutions Act, not local governments under the Trade (Licensing) Act.
Ejusdem Generis Rule — Interpretation of General Words Following Particular Ones
Where general words follow particular ones in a statute, the general words apply only to persons or things of the same class as the particular ones. The exemptions listed in Section 8(2) of the Trade (Licensing) Act relate to traders in goods; financial institutions providing services are of a different class and the legislative intent was not to include them in the licensing scheme.
Internal and External Aids to Interpretation — Statutes in Pari Materia — Subsequent Legislation
In interpreting a statute, courts may consider both internal aids (the whole statute and its provisions) and external aids (the historical setting, statutes dealing with the same subject matter, and subsequent legislation declaring intent). Where subsequent legislation such as the Local Governments Act allocates regulatory functions, this allocation is entitled to great weight in interpreting earlier enactments.

Legislation cited (39)

Cases cited (10)

  • John Jet Tumwebaze v Makerere University Council (Civil Application No. 353 of 2005)
  • Proline Soccer Academy Limited v Lawrence Mulindwa & Others (HCMA No. 459 of 2009)
  • Uganda Lottery Ltd v Attorney General (HCT-00-CC-MC-627 of 2008)
  • R v. Inland Revenue Commissioners, Ex parte National Federation of Self Employed and Small Businesses Ltd. [1962] AC 617
  • The King v. Electricity Commissioners, Ex parte London Electricity Joint Committee [1924] I KB 171
  • In Re An Application by Bukoba Gymkhana Club [1963] E.A. 473
  • Sussex Peerage Case (1844) 8 ER 1034
  • R v. Edmundson (1859) 28 LJMC 213
  • Shah Vershi Devshi & Co. v. The Transport Licensing Board [1971] EA 289
  • Dupont Steels Ltd. v. Sirs [1980] 1 WLR 142

Full judgment

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Stanbic Bank (U) Ltd & 3 Ors v Attorney General (HCT-00-CC-MA 645 of 2011) [2011] UGCommC 118 (20 December 2011)
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.