1. Discuss the Judicial RemediesApproach:

Define judicial remedies Identify and discuss the judicial remedies Elements and Applications of Judicial remedies

Suggested AnswerJudicial remedies are means which a court of law in exercising of enforcement of right, imposes a penalty or makes an order in the ordinary proceeding of a court. Where an application for judicial review is successful the following remedies are available.

1. Prerogative Orders

The Judicature Act part IV provides for Judicial Remedies. S. 36. Prerogative orders, JA Cap 13(mandamus, prohibition and certiorari):

In Lex Uganda Advocates & Solicitors v. AG, held that prerogative orders are remedies for the exercise of power by those in public offices, and they are available to give relief where a private person is challenging the decision or action of a public authority or public body or anyone actibng in the exercise of a public duty.

S.36 (1) JA Cap 13 provides that the High Court may make an order, as the case may be, of—

(i) mandamus (Mandatory Order)- requiring any act to be done: is an order from the High Court commanding a public authority or official to perform a public duty. In R V Barker (1762) 3 Burr 1265, the purposes was to prevent disorder from the failure of justice.

A mandatory order compels public authorities to fulfill their duties. Whereas quashing and prohibition orders deal with wrongful acts, a mandatory order addresses wrongful failure to act. A mandatory order is similar to a mandatory injunction (below) as they are orders from the court requiring an act to be performed. Failure to comply is punishable as a contempt of court. Examples of where a mandatory order might be appropriate include: compelling an authority to assess a disabled person’s needs, to approve building plans, or to improve conditions of imprisonment. A mandatory order may be made in conjunction with a quashing order, for example, where a local authority’s decision is quashed because the decision was made outside its powers, the court may simultaneously order the local authority to remake the decision within the scope of its powers.

(ii) Prohibition (prohibiting order), prohibiting any proceedings or matter: Prohibition is an order issued primarily to prevent an inferior court or tribunal from exceeding its jurisdiction, or acting contrary to the rules of natural justice. R V Electricity Commissioner, anybody having a legal authority and acts beyond their authority, are subject to the controlling jurisdiction of the King.

A prohibiting order is similar to a quashing order in that it prevents a tribunal or authority from acting beyond the scope of its powers. The key difference is that a prohibiting order acts prospectively by telling an authority not to do something in contemplation. Examples of where prohibiting orders may be appropriate include stopping the implementation of a decision in breach of natural justice, or to prevent a local authority licensing indecent films, or to prevent the deportation of someone whose immigration status has been wrongly decided.

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(iii) Certiorari(Quashing Order), removing any proceedings or matter to the High Court: Certiorari is an order quashing decisions by inferior courts, tribunals and public authorities where there has been an excess of jurisdiction or an ultra vires decision; a breach of natural justice; or an error of law. By setting aside a defective decision, certiorari prepares the way for a fresh decision to be taken. In Kikonsa Butema Farms Ltd V. IGG- was held that must be shown that despondent acted beyond his jurisdiction.

A quashing order nullifies a decision which has been made by a public body. The effect is to make the decision completely invalid. Such an order is usually made where an authority has acted outside the scope of its powers (ultra vires). The most common order made in successful judicial review proceedings is a quashing order. If the court makes a quashing order it can send the case back to the original decision maker directing it to remake the decision in light of the court’s findings. Or if there is no purpose in sending the case back, it may take the decision itself.

2. Ordinary Orders

(i) An injunction may be claimed against a public authority or official, to restrain unlawful acts which are threatened or are being committed. It is an equitable remedy in the form of a court order, whereby party is required to do or refrain from doing. In Geila V Sassman Brown & Co, held that for an interim injunction to be granted, it must be shown that the applicant has a prima facie case, with a probability of success.

An injunction is an order made by the court to stop a public body from acting in an unlawful way. Less commonly, an injunction can be mandatory, that is, it compels a public body to do something. Where there is an imminent risk of damage or loss, and other remedies would not be sufficient, the court may grant an interim injunction to protect the position of the parties before going to a full hearing. If an interim injunction is granted pending final hearing, it is possible that the side which benefits from the injunction will be asked to give an undertaking that if the other side is successful at the final hearing, the party which had the benefit of the interim protection can compensate the other party for its losses. This does not happen where the claimant is legally aided.

(ii) A declaratory judgment may be obtained which merely declares the legal relationship of the parties and is not accompanied by any sanction or means of enforcement. The authority of a court's ruling on law is such that a declaratory judgment will normally restrain both the government and public authorities from illegal conduct. In Opoloot V AG, court refused to grant the applicant on grounds that it would embarrass and prejudice they security of the state.

A declaration is a judgment by the Court which clarifies the respective rights and obligations of the parties to the proceedings, without actually making any order. Unlike the remedies of quashing, prohibiting and mandatory order the court is not telling the parties to do anything in a declaratory judgment. For example, if the court declared that a proposed rule by a local authority was unlawful, a declaration would resolve the legal position of the parties in the proceedings. Subsequently, if the authority were to proceed ignoring the declaration, the applicant who obtained the declaration would not have to comply with the unlawful rule and the quashing, prohibiting and mandatory orders would be available.

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(iii) Damages, the court may award damages if these have been sought by the applicant and the court is satisfied that damages could have been obtained by an action brought for the purpose. Damages are available as a remedy in judicial review in limited circumstances. Compensation is not available merely because a public authority has acted unlawfully.

The discretionary nature of the remedies outlined above means that even if a court finds a public body has acted wrongly, it does not have to grant any remedy. Examples of where discretion will be exercised against an applicant may include where the applicant’s own conduct has been unmeritorious or unreasonable, for example where the applicant has unreasonably delayed in applying for judicial review, where the applicant has not acted in good faith, where a remedy would impede the an authority’s ability to deliver fair administration, or where the judge considers that an alternative remedy could have been pursued.

(iv) Habeas Corpus.-means produce the body is remedy provided for illegal detention. Section 34 of JA Cap 13, provides for High Court may at any time, where a person is deprived of his or personal liberty otherwise than execution of a lawful sentence, may award a writ of habeas corpus directed to the person in whose authority custody the person deprived of liberty. In Re Twaaha Wanande HC, court held that in any application for a writ of habeas corpus, the applicant must show that the arrest and detention were unlawful in the first place.

(v) JUDICIAL REVIEWJudicial review is provided for s.36 (10) of JA Cap 13. The power to review lies with the High Court. The Act limits the time for an application for review to Three months from the date when the ground arose unless court has good reason to extend time.Grounds for Judicial ReviewJudicial review is different from an appeal. The distinction is that an appeal is concerned with the merits of the decision under appeal while judicial review is concerned only with the legality of the decision or act under review. In the GCHQ Case (1985), Lord Diplock classified the grounds on which administrative action is subject to judicial control under three heads, namely, illegality, irrationality, and procedural impropriety.

(A) ILLEGALITY

Illegality as a ground for judicial review means that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is a question to be decided in the event of dispute by judges. This would mean that when a power vested in a decision-maker is exceeded, acts done in excess of the power are invalid as being ultra vires (substantive ultra vires).

An example would be where a local council, whose power is derived from statute, acts outside the scope of that authority. Bromley Council v Greater London Council (1983).

Government Ministers have also sometimes acted outside their authority. R v Home Secretary, ex parte Fire Brigades Union (1995).

(B) IRRATIONALITY

By irrationality as a ground for judicial review, Lord Diplock in the GCHQ Case (1985) meant what is referred to as Wednesbury unreasonableness.In Associated Provincial Picture Houses Ltd v

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Wednesbury Corp (1948) the Court of Appeal held that a court could interfere with a decision that was 'so unreasonable that no reasonable authority could ever have come to it'.

Lord Diplock in the GCHQ Case said that this “applies to a decision which 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 to be decided could have arrived at it.”

Case examples include: Strictland v Hayes Borough Council (1896), R v Derbyshire County Council, ex parte The Times (1990)

This ground has been used to prevent powers from being abused by, for example, exercising a discretion for an improper purpose or without taking into account all relevant considerations.

(C) PROCEDURAL IMPROPRIETY

Procedural impropriety as a ground for judicial review covers the failure by the decision-maker to observe procedural rules that are expressly laid down in the legislation by which its jurisdiction is conferred, or a failure to observe basic rules of natural justice, or a failure to act with procedural fairness (procedural ultra vires).

DOCTRINE OF NATURAL JUSTICE

The Main rules of Natural Justice

(i) nemo judex in causa sua potest (no man can be a judge in his own cause), which will be breached where the decision-maker has a direct financial interest or has acted both as prosecutor and judge, or where there is a real danger of bias. R v Altringham Justices ex parte Pennington (1975)

(ii) audi alteram partem (hear the other side), which requires prior notice to be given of a decision adverse to individual interests together with an opportunity to make representations. Ridge v Baldwin (1964).

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