IN THE HIGH COURT OF UGANDA AT KAMPALA

                                          (CIVIL DIVISION)

                 MISCELLENOUS CAUSE NO. 2 OF 2018

NC BANK UGANDA LTD & 24 ORS :::::::::::::::::::::::::::::::: APPLICANTS

                                                  VERSUS

1. KAMPALA CAPITAL CITY AUTHORITY
2. ATTORNEY GENERAL :::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

BEFORE HON. LADY JUSTICE H. WOLAYO

RULING

Introduction

Through their advocates AF Mpanga Advocates,  the   twenty five  applicants   seek orders in judicial review under  Judicial Review Rules 2009  for  prerogative orders of certiorari and prohibition against the respondents.  The motion is supported by the affidavits in support and rejoinder of Wilbrod Owor.  The 1^st respondent filed affidavit in reply of Ezra Sebuwuffu while the 2^nd respondent filed affidavit in reply of Oburu Odoi Jimmy.

Background

It’s not disputed that prior to   Amendment Act 27 of 2015, section 8 (2) ( f) of the  Trade ( Licensing) Act cap 101  , no trading licence was required for any trade or business in respect of which a separate licence is required.  Section 5 of the Amendment repealed this section  and the new legislation is now silent on such businesses but  it amended section 8 (1)  to extend trading licences to ‘services’.   Section 8 (2) ( c) was amended to remove restrictions   to levy  trading licences for trade carried out in markets under the Market Act   to  include ‘trade in business ’ as may be prescribed by the Minister.

The effect of  amendment of section 8 of the old law  was  three fold: 

The Act authorized levy of trading licences on ‘services ‘; 

Trade carried out in markets  regulated by the Markets Act continues to be exempt  from trading licences except  trade in  business as may be prescribed by the Minister in consultation with the local authority.

  It  provided  penalties for   contravention of  section 8( 1)  of the Amendment Act that prescribes trade licences for any person carrying out trade in goods or services without a trading licence under the Act.

It was against this background that the Minister of Trade , Industry and Cooperatives  amended schedules to  the Trade ( Licensing ) Act cap 100  by   S.I 2 of 2017  ( Trade (licensing ) Amendment of Schedule Instrument   requiring  Banks  to pay Trade Licence fees        (items 25 and 28 ) in Part A of the schedule  for  those located in municipalities or towns and  items 20 and 23  in Part C of the Schedule for  those located in Kampala city.   Both items cover Banks and  ATM machines respectively. It is these items   that are  being challenged  by the applicants as having been made ultra vires the powers of the Minister. 

All counsel made written submissions and availed authorities that I have carefully examined.

Applicants’ case

The applicants contend  they are licensed, regulated and supervised by the Central Bank under the Financial Institutions Act 2004 and therefore the requirement under  Item 25  of S.I.  2 of 2017 to  pay for a trading licence for Banking services is irrational , unfair and amounts to a double collection of revenue.  They contend the requirement under Items 28 and  23 to pay separate trade licensing fees for ATM  is unfair, irrational and amounts to double charging since ATMs are part of the banking business.  They also contend the Minister acted ultra vires her powers when she made S.I.  2 of 2017.

The respondents’ case

The 1^st respondent ( KCCA)  contends that the application is misconceived because  it’s role is limited to levy licensing fees that were determined by the Minister under S.I 2 of 2017 and  in accordance with section 8 of the Trade Licensing Amendment Act 2015   that repealed clause 2( f) of the old law that exempted the levy  of licensing fees on any business for which a separate license was required.   For the 2^nd respondent, it was contended that the levy of trade licence fees  under the Trade Licensing Amendment Act is lawful , moreover the Financial Institutions Act ( FI Act ) does not preclude  the levy of trade licence fees on the applicants.

 By a joint scheduling memorandum, Counsel identified four  issues for determination .

1. Whether the application raises issues for judicial review.
2. Whether items 25 and 28and items 20 and 23 of S.I 2 of 2017 are irrational and unfair.
3. Whether items 25 and 28 and items 20 and 23 of S.I 2 of 2017 are

unlawful for being ultra vires the trade Licensing Act Cap 101 as amended by Act 28 of 2015.

1. Remedies

Issue No. 1: Whether the application raises issues for judicial review

Counsel for the respondent submitted  that the applicant seeks to challenge the Trade Licensing Act itself which this court has no jurisdiction to entertain and that moreover, judicial review is about the decision making process and not the decision itself. Counsel also referred me to Amal v Equal Opportunities Commission  HCMC No. 233 of 2016 where I held that the  applicant had not exhausted   remedies under the Employment Act. This case is of  no relevance to the present application at all.  This case was concerned with an employment dispute whose dispute resolution mechanism is the Employment Act and therefore the applicant had a duty to approach those mechanisms and not seek judicial review.

As submitted by counsel for the applicants, judicial review is concerned with  decisions of administrative bodies and the statutory instrument  is delegated legislation which is made by the Minister, a public official  . In Bank Mellat v Her Majesty’s  Treasury  No. 2  [2014]A.C 700,  the Court of Appeal of England held that delegated legislation does not have the status of primary legislation and the statutory instrument is the instrument of the Minister who is empowered by the enabling Act  .  The court further held ,the focus  of the court  is on the instrument and not the Act. Although this case is not of binding authority it articulates a good principle that is relevant to the  facts in issue.

Counsel for the respondents argues that  the applicants ought to have challenged the Act itself  that enabled the Instrument but   this argument is without merit. While I agree  the applicant cannot challenge the legality of an Act  as held in Kampala Private Medical Professionals  v AG  HC MA 552 of 2017,  cited by counsel for the respondent, the current challenge goes to the  legality of  including Banks and ATM machines under S.I 2 of 2017  which the court must  satisfy itself is consistent with the spirit of the Act.  As the challenge is to the legality of SI 2of 2017 which is made by a  Minister and therefore a public official,   this application for judicial review is properly before me.   

Issue No. 1 is answered in favour of the applicants.

Issue No. 2: Whether items 25 and 28 and items 20 and 23 of S.I 2 of 2017 are

unlawful for being ultra vires the Trade Licensing Act Cap 101 as amended by Act 28 of 2015.

Counsel for the applicant submitted the schedule is illegal and ultra vires the Principal Act to the extent it provides  for ‘Banks’ as a trade licensing item for which the local governments are not licensing authority.  Counsel cited article 192 (2) of the Constitution which commands that fees and taxes to be levied , charged , collected and appropriated shall consist of  rents, rates, royalties, stamp duties, cess, fees on registration and licensing’.   

Counsel further cited Stanbic Bank ltd and others v Attorney General HCMA No. 645 of 2011  where  the court found  that regulations under the Local Government Act permitted  local governments to  levy of licences  on businesses under their regulation, however, I find  this precedent is not helpful because the said Regulations  are at par with  S.I 2 of 2017 .

In response, counsel for the 1^st respondent submitted  that  the Trade ( Licensing) Amendment Act 28 of 2015, repealed section 8 ( 2) (f) of Cap 101  with the result that  ‘services’   were brought under the operation of the  Act. It was counsel for the 1^st respondent’s submission that  Act 28 0f 2015 now authorized the Minister to bring banking services  under the operation of the Act and  the Minister lawfully made provision for licence fees payable by  banking  institutions under the Act.  Counsel further submitted that  this is a matter for constitutional interpretation under section 137 which is the preserve of the Constitutional court.

Counsel for the respondents submitted  that  section 8(2) (f)  was repealed  and therefore  businesses with licences under separate laws  now had to pay  for trading licences.

A first reading of  Act 28 of 2015 would seem to support  counsel for the 1^st respondent’s submission that  the amendment of  section 8 (1) to include services  brings Banks under the  regulation of the Trade Licensing Act  but to agree with counsel for the respondents would be to attempt to stretch the meaning of ‘services ‘  which incidentally, is not defined in the parent Act.

The effect of the amendment is as follows:

Subject to sub-section 2 , no person shall trade in any goods or’ services ‘ or carry on any business specified in the schedule to this Act  unless he or she is in possession of a trading licence granted to him or her for that purpose under the Act. 

 A reading  of section 1 ( g to i)   reveals  the purpose  of the Trade Licensing Act as amended.

‘Sell ‘ is defined to include offer for sale, and to expose for sale,

Sell goods wholesale  means to sell goods to a person or the servant of a person who is reasonably believed by the seller to intend to resell the goods by retail.

Trade or trading means the selling of goods for which a licence under the Act is required in any trading premises, whether by retail or wholesale;

Trading premises includes any structure attached to the land  whether permanent or temporary, except a market under the Markets Act in which trade is carried on.

 While a range of services specified under the Amendment schedule  can fit in the above  definitions without necessarily defining services under the Act,  the banking business  does not.

An examination of the definition of bank and banking business in the Financial Institutions Act cap 54 is instructive. Bank means any company licensed to carry on banking as its principal  business and includes all branches and offices of that company in Uganda.

Banking business means  a principal business of

• Accepting deposits of money from the public repayable on demand or at the expiry of a fixed period or after notice;
• Employing such deposits wholly or partly by lending or any other means for the account and at the risk of the person accepting such deposits;
• Presenting to another bank, for payment , cheques, drafts, or orders received from customers in the capacity of a banker.

A  reading of  the definition of banking  in the FI Act  does not bring it within the meaning  ‘trade’, or ‘sell’ under the Trade Licensing Act. Had Parliament intended that  Banks would  pay trade licensing fees  , it would have said so expressly given the  wide gap between trading business  and banking  business and given the very specific regulatory law , the Financial Institutions Act .

In Amrit Goyal  v Hari Chand Goyal  Commericla Court Civil Suit No. 432 of 2001( ulii)   ,  the High Court presided over by Ogola J  as he then was found  the Exchange Control  Act that prohibited   companies from dealing in securities without Ministerial permission was in conflict with the Companies Act that had no restrictions  and in this regard,  by the rule of statutory interpretation  that a specific legislation over a specific subject takes precedence over general legislation,   the Companies Act prevailed. ( generalia specialibus rule) .

Similarly, the  Trade licensing Act as amended that makes no mention of Banks   is a general legislation that  must give way to the FI Act that is specific to Banks and  provides  for their licensing.

Counsel for the respondents submitted  this court does not have jurisdiction to entertain this challenge to  S.I 2 of 2017 because it is grounded in  Trade Amendment Act 28 of 2015   that gives authority to the Minister to levy licenses on services.  In Woolwich Building Society v Inland Revenue Commissioner No.2 [1991] ALL.E.R 577,  the Court of Appeal in England confirmed a decision by the High Court that had found   Income Tax regulations were ultra vires and made without Parliamentary authority  for imposing tax on dividends paid out by the respondent  .

In a similar way, I find that   while the Act gives authority to  the Minister to amend the schedule  to expand or remove businesses that require  licence fees for services or goods , Banking business is not a service  that involves selling and trading  in order for it to be brought under the Trade Licensing Act.

 In conclusion, I  find that the Minister acted ultra vires the Trade Licensing Act as amended   which does not  expressly  name Banks or define them as a service   when she  included   them  in the Amendment Schedule 2 of 2017.

 Issue No.2 is answered in favour of the applicants.

Issue No. 3: whether items 25 and 28 ( Part A)  and 20 and 23 Part C  are irrational and unfair.

Under this issue counsel for the applicant focused on  the existence of a separate licensing regime for Banks.   I have addressed  this issue under issue No. 2 and  I  find it unnecessary  to address it under a separate heading.

Suffice it to say I have found that Banking business does not fall under the  definition of trading  and selling or a service envisaged by the Trade Licensing Act as amended.   With respect to  ATMs these are dealt with in the next issue.

Issue No.  4 : Whether item 28 Part A and 23 Part C of the Trade Licensing Amendment Schedule  are irrational and unfair

Counsel  for the applicant addressed me on the principles  courts invoke when determining whether a decision was irrational but I would rather approach this issue form the perspective of whether   the inclusion of  ATM machines in the schedule was intra vires the law.

 Counsel for  the applicants submitted that these are part of banking businesses and covered by the licence issued under section 3 of the F I Act  which licence extends to  all branches.

Counsel for the 1^st respondent submitted that many Banks  operate separate and standalone  ATMs away from  the bank premises. Section 8  (8) of the FI Act specifies that a licence granted under the Act shall be displayed in a conspicuous place in the premises in which the financial institution carries on its lawful business and copies shall be displayed in each of its branch offices.  An  ATM  in a separate location is not  a branch office and therefore cannot  be said to be covered by the licence.

An examination of the Act shows that  the service rendered by ATMS does not fall under the definition of bank or  banking business in its entirety.   In fact ATMS are not regulated under the FI Act.  ATMs do not deploy  deposits by lending and   they do not  present to another bank cheques , drafts etc.  The machines do not carry out business but simply render a service  which brings them under section  8 ( 1) as amended.

The rider to this finding is that ATMS located within bank premises are obviously covered by the licence under sections 3 and 4 of the FI Act but those located away from the bank premises are just rendering  service of dispensing money and nothing more so they are lawfully included in the amendment schedule.

In conclusion, I find that  an ATM machine  located away from bank premises is not a branch office nor is it regulated or   defined by the FI Act and therefore  it was lawfully listed as a service  for which a trading licence is levied under the Trade Licensing Act.   Issue No. 4 is answered partially in favour of the applicants and partially in favour of the respondents.

Costs

As  the applicants have succeeded  on  the substantive issues 1 and 2 , I award them 70% of the costs of the application to be paid by both respondents severally and jointly.

Summary of findings

I  found mostly  for the applicants and partially for the respondents as follows:

1. As the challenge is to the legality  SI 2 of 2017 which is made by the Minister and therefore a public official,  the application for judicial review was properly before me.
2. The Minister  acted ultra vires the Trade Licensing Act as amended  which does not name Banks or define them as  carrying out business for services , when she included them in the Amendment Schedule 2 of 2017.
3. the ATM machine located away from bank premises is not a branch office nor is it regulated or defines  by the FI Act and therefore was lawfully listed as a service for which a trading licence is levied under the Trade Licensing Act .

Orders

I make the following orders:

1. The writ of certiorari will issue quashing Item25 of Part A andItem 20Part Cof the Amendment schedulethatauthorizes levy ofTrade license feesfor being ultra vires theTrade Licensing Actasamended.
2. Item 28 of Part A and 23 of Part C that authorizes levy of licence fees on ATMs isintra vires the Trade Licensing Act to theextent that trading licences will be levied only on those ATMSlocated away from bank premises.
3. The licence fees on ATMS identified under order( 2) above shall become payable from the dateof demand by the Local Authority or KCCA.
4. The respondents are prohibited from levyinglicence fees on Banks under the Amendment Schedule 2 of 2017.
5. The temporary injunction issued on 30^th April 2018 is hereby vacated.
6. 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 bothrespondents severally and jointly.

 DATED AT KAMPALA THIS 25^TH DAY OF  FEBRUARY 2019.

HON. LADY JUSTICE H. WOLAYO

Legal representation

AF Mpanga Advocates for the applicants

Directorate of Legal  Services KCCA for the 1^st respondent

Attorney General’s Chambers for the 2^nd respondent