Judicial Review

QUESTION:
With the aid of authorities, explain under what circumstances the courts
may refuse to grant Judicial Review.

Judicial review is a courts power to review the actions of other branches

or levels of government especially the courts power to invalidate the
legislative and executive actions as being unconditional. 1[1]The system of
judicial review was inherited from Britain.2[2]The whole law of judicial
review of administrative action has been developed by judges on case-tocase. Article 42 states that Any person appearing before any
administrative official or body has a right to be treated justly and fairly
and shall have a right to apply to a court of law in respect of any
administrative decision taken against him or her. 3[3]Judicial review is
thus not only an integral part of the Constitution but is also a basic
structure of the Constitution which cannot be abolished or whittled down
even by an amendment of the Constitution. Therefore, it is a Fundamental
Right in law. Thakker said, It is not only the right and power but the duty
of the Supreme Court to protect and safe guard the Fundament Right of
the people.4[4]In the case of L. Chandra v UOI,5[5]the court held that
the power of judicial review of the High Court is a basic feature of the
Constitution which cannot be abridged or ousted.
The nature and purpose of judicial review is not the review of the decision
of the administrative authority but the decision making process. The right
of seeking judicial review of the decision depends on the facts of each
individual case. Illegality, irrationality and procedural impropriety are the
grounds on which courts consider to grant judicial review in the public
interest. Therefore courts will be slow to interfere with any administrative
1[1] Bryan A. Garner: BLACKS LAW DICTIONARY 7TH EDITION. Page 852
2[2] I.I Massey: ADMINISTRATIVE LAW 6TH EDITION. Page 238
3[3] CONSTITUTION OF THE REPUBLIC OF UGANDA 1995
4[4] Thakker, C.K; ADMINSTRATIVE LAW ,1992.Eastern Book Company
5[5] (1997)3 SCC 261

action if it does not fall in the above categories. In Lord Diplock's words
illegality means that the decision maker "must understand correctly the
law that regulates his decision-making power and must give effect to it." A
decision is irrational if it is "so outrageous in its defiance of logic or of
accepted moral standards that no sensible person who had applied his
mind to the question could have arrived at it." 6[6] This is also known as
Wednesbury unreasonableness. Procedural impropriety is the
process where the procedures prescribed by statute have not been
followed or if the rules of natural justice have not been adhered to.
Remedies to judicial review are orders of certiorari, mandamus, prohibition
or an injunction.7[7] Certiorari is a royal demand for information.
Mandamus is a judicial remedy issued in the form of an order from the
Supreme Court or High Court to any constitutional or statutory or a nonstatutory agency. Prohibition is a writ issued by an appellate court to
prevent a lower court from exceeding its jurisdiction or to prevent a
judicial officer from exercising a power. Injunction is an ordinary judicial
process that operates in personal by which any person or authority is
ordered to do or to refrain from doing a particular act which such a person
or authority is obliged is obliged to do or to refrain from doing under any
law.8[8] In the case of Justice R.O Okumu Wengi v A.G 9[9]brings up all
remedies although the appellant lost because of the lapse of time to
submit the documents.
The case of Ridge v Baldwin10[10] is a locus classicus case for judicial
review in accordance to natural justice. A police constable was dismissed
without being heard. Court held that the decision was void for failure of
exercising natural justice. Although judicial review is a fundamental right
as provided in Article 42,11[11]the right of seeking it depends on each

6[6] Lord Diplock

7[7] CIVIL PROCEDURE(judicial review) RULES Sec.3,Order 2(1)
8[8] I.I Massey: ADMINISTRATIVE LAW 6TH EDITION. Page 327,334,332 and 346
respectively.
9[9] MISCELLANEOUS APLLICATION No. 233 of 2003
10[10] (1964) AC Page 40
11[11] CONSTITUTION OF THE REPUBLIC OF UGANDA 1995

case. Therefore, there are circumstances where judicial review may not be
granted by courts. These can be seen in the discussion below.
Judicial review may not be granted when there are other alternative
remedies which can be given to the person applying for it. In Ram Roop v
Bishwa Nath,12[12]it was said that power may be exercised even in
cases where no appeal or revision lies to the High Court. Therefore, where
any alternative remedy is available to the person, the court may not
exercise this power. Section 37(1) and 38(1)13[13] provide for an order
of mandamus or an injunction and the High Court having power to grant
an injunction to restrain any person from doing any act as specified by the
High Court. Therefore, if there are other alternative remedies to be
granted to any person, then judicial review may not be granted by courts.
Judicial review as a fundament right to any person may not be granted in
case of deployment of troops, foreign affairs and national security. In such
cases, the courts regard themselves as ill equipped to investigate beyond
an initial decision. The courts can investigate on the claim of the
government as being bona fide.14[14] This means that the courts will not
look in cases that are in the interest of national security hence not being
able to exercise the fundamental right of judicial review. This also means
that the courts will be compelled to exercise the power but in a particular
manner. Courts will not therefore impose the option which it thinks it is the
best. Thus courts will not be able to grant judicial review although it is a
fundament right. In the case of Opolot v A.G15[15] it was held that the
discretion should not be exercised where it is in the interest of the security
of the state. In that case, Opolot would not be granted his fundamental
right. Therefore, courts cannot judicial review in cases of national security.
In a case of locus Standi, courts may not grant judicial review. Locus
standi is the right to bring an action or challenge. 16[16] The issue is that
no one will spend his money and time in challenging an action unless he
has some interest in it. However, a mere interest would not entitle a
person to a writ unless he or she can show that his or her interest is more
12[12] AIR (1958) ALL 456
13[13] JUDICATURE ACT CHAPTER_13
14[14] I.I Massey: ADMINISTRATIVE LAW 6TH EDITION. Page 249
15[15] (1969) E.A 631
16[16] OXFORD DICTIONARY OF LAW 5TH EDITION. Page 296

than an ordinary member. In Maganbhai v Union of India,17[17]the

petitioners sought to restrain the government from giving effect to a Kutch
Tribunal award by handing over certain territory in Rann of Kutch to
Pakistan. The Supreme Court refused to grant the writ because it found
that no petitioner had any clear interest in the action of the government
and neither did any one live there nor have any property there. In A.G
and Uganda Land Commission v James Mark Kamoga and James
Kampala,18[18]the appellants filled an application in the High Court
Seeking review of a consent judgment entered by the Deputy Registrar in
a suit instituted by the respondents against the appellants for recovery of
land. The Court of Appeal held that the judge had no power to entertain
an application for review of a consent judgment passed by the a registrar
and that the respondents were not competent to apply for review as they
were not aggrieved for purpose of the law under which the application
was made and did not comply with conditions under the law. Therefore,
when a party does not show his or her interest in the case of applying for
judicial review, the courts my not under that circumstance grant judicial
review although it is a fundamental right in the Constitution of Uganda
under article 42.
Judicial review may not also be granted by courts under laches or
unreasonably delay. This will apply to the person trying to seek writ.
Although the Supreme and High Court are invested with the power for
enforcement of the fundamental right thus being mandatory, the courts
may not grant a remedy if there are laches in invoking the jurisdiction of
the court. There is no fixed period for laches. Every case will be
determined on its own merit. In Tilok Motichand v H.B Munshi, 19[19]it
was said that without reference to the limitation law the court must see
whether there is any explanation for the delay in filing the petition. Thus,
if any person files a petition for judicial review when the reasonable time
has expired, the writ may not be granted by the courts. In Justice R.O
Okumu Wengi v A.G, 20[20] the applicant filled an application to seek
orders by way of judicial review; a declaration, Certiorari, prohibition,
injunction, general damages and costs. The commission required the
17[17] (1970)3 SCC 400
18[18] CIVIL APPEAL No. 74/02, dated 30th March
19[19] (1969) 1 SCC 110
20[20] Miscellaneous Application No.233 of 2006

applicant to submit his comments on the allegations contained in the

petition within seven days from the stated date (24 th February, 2005)
since he had been in possession of the petition since 9th February, 2005.
On 20th May the commission received a 40 page document which was
dated the same day and contained comments by the applicant on the
petition. The document was obviously late. The court dismissed the
account by referring to the case of Joseph Borowski v A.G.21[21] The
Supreme court of Canada dismissed Borowskis appeal as the subject
matter of his appeal was no longer in existence. Therefore due to laches
to any party applying for the writ of judicial review, the courts may refuse
to grant it to the party.
Judicial review will be denied where the application for judicial review does
not show an arguable base. This means that case will be misconceived. In
the case of Justice R.O Okumu Wengi v A.G, 22[22]the applicant applied
for judicial review against a decision to have him removed from office. He
later tendered his resignation to the president which was actually granted.
Court held that courts of law do not decide cases where no live disputes
between parties are existent. The case was thus dismissed on grounds
that he had been voluntarily retired thus could not be removed from
office. Justices case did not show an arguable base since he had written a
resignation letter to the president and after he was seeking for judicial
review because he was told to leave office by Judicial Service Commission.
Therefore, courts may refuse to grant judicial review if the case reported
seeking for judicial review does not show an arguable case.
Judicial review in some instances may not be granted in cases where by
the statute court directly excludes courts from
applying judicial review. This may apply to certain particular decisions of
an administrative tribunal or official. Therefore, the courts will not be
bound to interfere with such decisions. When the administrative tribunals
are the final in handling certain matters and the power was invested in
them, then the courts shall not have power to review the decision decided
by administrative tribunals. Hence, in such a situation the courts will
refuse to grant judicial review since the final decision is supposed to be
taken by the administrative tribunals. In the case of R v Medical Appeal
Tribunal ex p.Gilmore,23[23]a tribunals decisions were protected by a
21[21] [1989] 1 SCR 342
22[22] supra
23[23] (1957)1 QB 574

finality clause. Therefore, they denied a workman injury benefits having

misconceived the law. Lord Denning stated that finality clauses shall only
apply where the whole procedure was made lawfully. In this case, the
Medical Appeal Tribunal had a lawful finality clause hence the court cannot
interfere with the decision made by the Medical Appeal Tribunal.
Therefore, if the administrative tribunal has a finality clause the courts
cannot come in to grant judicial review when a decision was given by the
administrative tribunal.
In conclusion, judicial review is a fundamental right as provided in article
42 of the Constitution of Uganda 1995 thus everyone is entitled to it. If
denied it leads violation of ones right and can sue in court. However,
there are some instances where judicial review may not be granted by
courts due to certain circumstances as discussed above. Therefore,
although judicial review is a fundamental right there are some limitations
thus it is not an absolute right.

BIBLIOGRAPHY
STATUTES
1. CONSTITUTION OF THE REPUBLIC OF UGANDA 1995
2. JUDICATURE ACT CHAPTER_13
TEXT BOOKS
1. I.I Massey: ADMINISTRATIVE LAW 6TH EDITION.
2. B.L. Jones and K.Thomas :GARNERS ADMINISTRATIVE LAW 8TH EDITION
3. Bryan A. Garner: BLACKS LAW DICTIONARY 7TH EDITION.
4. OXFORD DICTIONARY OF LAW 5TH EDITION
5. Wade: ADMINISRTATIVE LAW
CASES
1.

E.A: EAST AFRICA

2.

QB: QUEENS BENCH

3.

ALLER: ALL ENGLAND REPORTS

4.

AC: APPEAL CASES

5.