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Wakiso Transporters Tours and Travel & 5oers v Inspector General Of Governement & 3 oers (Misc.Cause No. 53 of 2010)

High Court · [2010] UGHC 59 · 2010 Preliminary Objections Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Interlocutory ruling on preliminary objections in an application for judicial review
Decision
Matter to proceed to substantive hearing on the merits of the judicial review application

Observed later treatment

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Holding

Held that Rule 7(3) of the Judicature (Judicial Review) Rules 2009 applies only where the court permits amendment of the motion, not to the initial reply to the application. No time limit is expressly prescribed for filing a reply to the original notice of motion, and failure to file within 56 days does not invalidate the reply where no prejudice is caused to the applicant and the matter does not go to jurisdiction. The 56-day period is intended to ensure expeditious determination rather than oust jurisdiction. On the objection to the 2nd and 3rd respondents, the court held that whether a respondent is properly joined and liable is a matter for determination after all evidence has been adduced, not at the preliminary stage, unless the objection can be decided fairly on agreed or undisputed facts. Both preliminary objections were disallowed.

Outcome

Matter to proceed to substantive hearing on the merits of the judicial review application

Facts

The applicants brought an application for judicial review alleging that the respondents had taken unjust, unfair and illegal decisions without giving reasons, without a hearing, and without following the law. When the application came for hearing on 20 September 2010, counsel for the applicants raised a preliminary objection to the 1st respondent's affidavit in reply on the ground that it was filed outside the 56-day period prescribed by Rule 7(3) of the Judicature (Judicial Review) Rules 2009. The 1st respondent filed its affidavit on 8 September 2010, having been served on 20 June 2010. Separately, counsel for the 2nd and 3rd respondents raised a preliminary objection seeking to strike out the application as against them, arguing that the 3rd respondent held office as CAO and was not sued in his capacity as an office holder, and that the impugned IGG report was not addressed to him personally. As to the 2nd respondent, counsel argued there was no suggestion in the motion that the report under challenge was made by Wakiso District Council or its CAO.

Issues

  1. Whether the 1st respondent's affidavit in reply filed outside 56 days prescribed by Rule 7(3) of the Judicature (Judicial Review) Rules 2009 should be struck out.
  2. Whether the application for judicial review discloses a cause of action against the 2nd respondent (Wakiso District Council) and the 3rd respondent (Mukwaya Joseph in his personal capacity).

Orders

  • The preliminary objection by counsel for the applicants relating to the 1st respondent is disallowed.
  • The preliminary objection by counsel for the 2nd and 3rd respondents is disallowed.
  • The case shall proceed to the next level.
  • The file shall be re-allocated for that purpose.
  • Costs attendant to the two objections shall abide the final outcome of the application.

Rules and key headnotes

Judicial Review Procedure — Time Limits for Filing Reply — Interpretation of Rule 7(3)
Rule 7(3) of the Judicature (Judicial Review) Rules 2009, which requires a respondent to file an affidavit in reply within 56 days after service of the documents required by sub-rule (1), applies only where the court has permitted amendment of the applicant's motion under Rule 7(1). It does not apply to the initial reply to an unamended notice of motion. The Rules do not expressly stipulate a time limit for filing a reply to an unamended motion.
Procedural Irregularities — Effect of Non-Compliance — Prejudice and Jurisdiction
Matters of procedure are not normally of a fundamental nature. A procedural irregularity will not invalidate proceedings or acts founded thereon unless (a) it goes to the question of the court's jurisdiction to entertain the application, or (b) prejudice is caused to the opposite party. Where the Rules do not state the legal consequences of non-compliance with a procedural time limit, the court should not treat the act as a nullity if no prejudice is occasioned.
Judicial Review — Joinder of Respondents — Preliminary Objections to Joinder
A plaintiff or applicant is at liberty to sue any body he or she thinks he or she has a claim against. Whether a respondent is properly joined and liable in judicial review proceedings is a matter to be determined after all relevant evidence has been adduced and not at the preliminary objection stage, unless the objection can be decided fairly and squarely on facts agreed or not in issue on the pleadings. If a wrong party is sued, the remedy lies in an order for costs.
Scope of Judicial Review — Decision-Makers Subject to Review
Judicial review is not restricted to inferior courts, tribunals and administrative authorities. Any person, natural or artificial, bound to explain and defend in any forum the decision he or she makes in the performance of his or her duties is answerable to judicial review. The decision-maker must correctly understand the law regulating his decision-making power, identify the parameters set by the empowering statute, and not exercise power for an improper purpose, make mistakes of fact, or apply the law inconsistently.

Legislation cited (7)

Cases cited (7)

  • Nanjibhai Prabohusdas & Co. Ltd v Standard Bank Ltd [1968] EA 670
  • Re Christine Namatovu Tebajjukira [1992-93] HCB 85
  • Marion Tukahirwa v Wakiso District Council and Another (Misc. Cause No. 278 of 2003)
  • Prisca Katatumba v Attorney General (Misc. Application No. 208 of 2009)
  • John Teira and Another v Makerere University Council (Misc. Cause No. 0049 of 2010)
  • Nestor Machumbi Gasasira v Inspector General of Government and Attorney General (Civil Appeal No. 0062 of 2009)
  • Maximor Oleg Petrovich v Premchandra Shenoi and Another (Civil Suit No. 802 of 1997)

Full judgment

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Wakiso Transporters Tours and Travel & 5oers v Inspector General Of Governement & 3 oers (Misc.Cause No. 53 of 2010) [2010] UGHC 59 (22 October 2010)
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.