The distinction between courts and tribunals was well laid down in AG V BBC. In this case, the respondent, the Attorney General claimed an injunction to restrain the appellants, BBC, from broadcasting the program on the ground that it would constitute contempt of proceedings then pending in the Local valuation court. The House of Lords distinguished between courts and administrative tribunals. It held that a body which has judicial function is a court whereas if it had an administrative function even if carried out judicially it would not be a court. While every court is a tribunal, the reverse is not true. While courts discharge judicial functions, tribunals resolve problems which arise in the course of administration of government. They are set up to provide speedy, cheap and accessible and expert determination of a particular category.
Characteristics of Tribunals.
They are creatures of statutes for example the Tax Appeals Tribunal is established by the Tax Appeals Tribunal Act and the Electricity Disputes Tribunal is established by the Electricity Act, etc. They are independent while carrying out their duties and can’t be interfered with unless on appeal, no minister can be held responsible for any tribunal’s decision. Their decisions are binding until appealed against.
Development of the Law on Tribunals in Uganda.
Tribunals have developed over the years and their importance has become more significant with supreme court now giving clearance to their existence for example the Tax Appeals Tribunal among others.
The brief background to the appeal is that;
The respondents sued the Commissioner General of URA in the High Court for recovery of trade goods and commercial trucks seized by the appellant and her agents. The reason for the seizure was that the Respondents had failed to pay tax for tons of cement that were imported into Uganda. The Respondents on the other hand contended that they had cleared all the taxes and therefore the seizure and impoundment of their goods and vehicles was illegal.
As a result, the Respondents claimed the value of the cement and the loss of earnings for the trucks. In considering the matter, High Court Judge, Okumu Wengi raised concern about the nature of the case before him. He held that since the High Court was not a tax tribunal the dispute should have been first presented before the Tax Appeals Tribunal. That the High Court deals with appeals from the Tribunal.
Dissatisfied with the High Court decision, the Respondents preferred an appeal to the Court of Appeal. The essence of the appeal was that the learned trial Judge erred in holding that the High Court did not have original jurisdiction to hear tax disputes and only deals with tax appeals from the tribunal.
The Court of Appeal found that, the legal basis of the jurisdiction of the High Court is basically to be found in Article 139 of the Constitution and Section 16 (1) of the Judicature Act. That, both Article 139 of the Constitution and Section 16 (1) of the Judicature Act confer power on the High Court with unlimited original jurisdiction in all matters.
This meant that the original Jurisdiction of the High Court can only be changed by amending the Constitution.
The Court of Appeal further found that the mere fact that the Tax Appeals Tribunal Act was set up in compliance with Article 152(3) of the Constitution, does not give that Act any power to override a provision of the constitution.
That an Act of Parliament cannot repeal, deter or reverse a provision of the Constitution unless there was an Act to amend the Constitution because the Constitution is the Supreme law of the land.
The Court of Appeal went on to state that the conferment of appellate jurisdiction on the Tax tribunal by Section 27 of the Tax Appeals Tribunal Act over the decisions of tax cases has no effect on the original jurisdiction of the High Court conferred by Article 139 (1) of the High Court.
That meant that a party who is aggrieved by the decision of the tax authorities on tax matters may choose either to apply to the Tax Appeals Tribunal for review or file a suit in the High Court to redress the dispute. The choice is his or hers. Once he or she goes direct to the High Court, that court cannot chase him or her away on the ground that it lacks original jurisdiction in the Constitution.
In regard to whether the dispute was a tax dispute or ordinary tort, G.M Okello JA in his lead judgment held as follows:
“Section 14 (1) of the Tax Appeals Tribunal Act empowers Tax Appeals Tribunal to review taxation decisions. Taxation decision is defined in Section 1 (k) of the Act to mean: “any assessment, determination, decision or notice. ”
The Supreme Court overturned the Court of Appeal’s decision and reinstated the decision of the High Court.
It held that article 139(1) of the Constitution gives the High Court original unlimited jurisdiction and is subject to other provisions of the Constitution which must be read together.
“the High Court shall, subject to the provisions of the Constitution, have unlimited original jurisdiction in all matters and such appellate and other jurisdiction as may be conferred on it by the Constitution or other law.”
One of the provisions envisaged is article 152(3) of the Constitution, which states that Parliament must make laws to establish tax tribunals for the purpose of settling tax disputes.
The court concluded that it would be inappropriate for the legal regime to give the High Court dual jurisdiction as a court with original and appellate jurisdiction in tax matters.
It would be bizarre that the legal regime would give the High Court dual jurisdiction.
The proper procedure therefore is that all tax disputes must first be lodged with Tax Appeals Tribunals and only taken before the High Court on appeal.
In support of his argument that Article 152 (3) does not oust the unlimited original jurisdiction of the High Court in all matters, the respondent relied on the lead judgment of Kanyeihamba J.S.C in the case of The Commissioner General Uganda Revenue Authority vs. Meera Investments, Civil Appeal No.22 of 2007.(to view full case https://ulii.org/ug/judgment/supreme-court-uganda/2009/3)
“An Act of Parliament cannot oust the original jurisdiction of the High Court, except by an amendment of the Constitution”.
“The conferment of the appellate jurisdiction on the High Court by section 27 of the Tax Appeal Tribunal has no effect on the original jurisdiction of the High Court conferred by Article 13 (1) of the Constitution. That means that a party who is aggrieved by the decision of the tax authorities on tax matters may choose either to apply to the Tax Appeals Tribunal for review or file a suit in the High Court to redress the dispute. The choice is his/hers. Once he/she goes direct to the High Court, that court cannot chase him/her away on the ground that it lacks original jurisdiction in the matter”.
As observed from the above submissions the court had earlier ruled that there was concurrent jurisdiction of the High Court and the TAT over a tax dispute.
The Supreme Court held that the earlier decision had not fully considered the interpretation of article 139(1), read together with article 152(3), of the Constitution and was distinguishable in terms of both context and facts.
The judgment, in this 16-year-old case, now fully settles the question as to original jurisdiction in tax disputes.
All tax disputes must now first be filed before the TAT and appeals made from there to the High Court.
What are the Justifications or reasons for tribunals
Tribunals are set up mainly to reduce on the case backlog, they are speedy and much quicker, the overall costs are in some cases cheaper and in some there are no costs at all for example Institutional Tribunals such as in the case of Yasin Sentumbwe & Anor v UCU, where before the students applied to the High Court, Students Tribunal (the Students Disciplinary Committee) relied conducted hearing for the two students and no costs were incurred by the parties. Tribunals also follow informal styles which are simple for litigants and hearings are kept private and confidential.
Constitution of Tribunals
Tribunals are constituted by statutory provisions which can by principle or subsidiary legislation. They may consist of one person but usually there will be three members. Tribunals are not composed of government officials, they are often constituted of lay members of the public sometimes coming from groups such as trade unions. They are expected to carry out their duties in accordance with constitutional principles that establish them and they should adhere to the rules of procedure laid down by the tribunal and principles of natural justice. In the case of Matovu v Sseviri[7] it was observed that audi alteram partem is a cardinal rule central to the Uganda system of justice that it must be observed by both judicial and administrative tribunals. Where an administrative agency acts contrary to this rule, it exceeds powers conferred upon it by parliament.
Procedures
There are no uniform procedures for all tribunals. Procedures are usually contained in the relevant regulations. For example under the Tax Appeals Tribunal Act, the Minister issued regulations to be followed by the tribunal. A few procedural aspects may also be contained in the relevant statutes. In absence of statutory procedures, in the Act and regulations, the tribunal may be left with room to enact its own procedures. During the trial, the tribunal should consist of a quorum as it was held in the case of Equator Inn Ltd v Tomasyan[8] where the Business Premises Tribunal purported to make an order in which the chairman of the tribunal did not sit. The appellant applied for a declaration that the proceedings were a nullity and appealed for the dismissal of the suit. It was held that the chairman must be present in a tribunal and where he’s not, those proceedings are considered null and void. The rules of procedure are that they give a period of notice, provide for a right to be heard by both parties, cross examination of witnesses and the procedure of conducting the hearing. Tribunals are not normally bound by the rules of evidence, therefore they may receive hearsay evidence provided that the party affected is given a fair opportunity to contest it as natural justice requires. This was held in the case of R v Deputy Industrial Commissioner ex parte Jones[9].
Tribunals have powers that are enjoyed by ordinary courts which include the power to summon witnesses, examine witnesses, order the production of documents in accordance with the relevant laws and initiate contempt of court proceedings against any person. The members of tribunals are immune to court action for example in Suleiman Ltd v Sayani, the court held that an advocate cannot be sued in respect of words uttered in proceedings before a tribunal.
Tribunals are not final adjudication bodies. Their decisions may be subject to appeal and appeals may be instituted in accordance with the relevant Act of Parliament. They are usually instituted in the High Court or in the relevant appellate tribunal for example appeals from decisions of Disciplinary Committee of Law Council may be heard by the High Court.
INQUIRIES
The fundamental rule is that an independent and autonomous judiciary is the one charged with finding facts and resolving disputes or conflicts, however, there are exceptions to this rule for example where situations emerge in which the judiciary is either not well equipped to perform a role or there is no other body better able to do this. Therefore, Commissions of Inquiry are set up to perform this function other than the courts.
According to Ssekaana (Public Law in East Africa, 1st ed. at page 153), a Commission of Inquiry is a fact-finding body whose purpose is to investigate an issue or set of issues and gather information. In Julia Sebutinde, Hon. Justice v AG[10] where Hon. Justice Sebutinde wanted the court to declare that her income as a chair of the Commission of Inquiry into allegations of corruption in URA was not liable to taxation as it was protected by Article 128(7) of the 1995 Constitution of the Republic of Uganda as amended, Hon. Justice Okello defined commissions of inquiry as administrative tribunals set up by a minister, not an Act of Parliament to make special inquiries into certain matters and report to the minister. Their reports are merely findings and recommendations and are not binding on the minister. Commissions of Inquiry are different from other administrative tribunals. Tribunals are concerned with finding facts and applying legal rules to those facts while inquiries although concerned with fact-finding are directed towards making recommendations.[11]
Justifications or reasons for Inquiries
Because of some inherent drawbacks with regard to the courts of law since judges not play an active role in the/under the adversarial system, their roles are confined to weighing the evidence presented by both parties and drawing a conclusion; to investigate charges of misconduct on the part of some governmental agency or department such as Commissions of Inquiry into corruption in URA-2002, Commission of Land Inquiry headed by Justice Catherine Bamugemereire, Judicial Commission of Inquiry in the Closure of Banks 2000; they are used where the public crises blow up & immediate investigation is required by public opinion.[12]
Constitution
A Commission of Inquiry may be instituted by the minister, appointing one or more commissioners to inquire into the conduct of any officer in the public service. The commissioners should be members of high public eminence, in Uganda, judges, retired judges or other people of public eminence are appointed to staff the commission for example, the current chairperson of the land Commission, the Hon. Justice Catherine Bamugemereire who is the Justice of the Court of Appeal/Constitutional Court was appointed by the president. The members of the commission are independent and impartial and thus they act free from any external influence and report accordingly.[13] They should have no connection with the government or any known political party.
Procedures
According to Wade, Administrative Law 11th edition at p.826, a minister may cause an inquiry to be held under the Act when it appears to him that public concern has been caused or may be caused by particular events. This is also provided for under S.1of the Commissions of Inquiry Act, Chapter 166. The minister must inform the Parliament of the setting up of the inquiry including details of the members of the inquiry panel, but the minister determines the membership of the inquiry panel and the terms of reference without reference to the legislature. The inquiry has no power to determine any person’s civil or criminal liability. The chairperson of the inquiry has power to require the evidence by any person and this includes the making of written statement to presenting themselves for examination. It’s an offence to fail to comply with such a requirement. Where the failure to comply with such a requirement is certified by the chairperson of the Inquiry to the High Court, the court may then after hearing representations enforce the requirement as if the matter has arisen in the proceedings before it.
Summarily, there is a thin difference between tribunals and inquiries as we can see tribunals are as a result of statutes while inquiries can come up as a result of minister’s orders to inquire about a specific matter and what they come with is just a recommendation and advice and is not binding.
BIBILIOGRAPHY
LAWS
The 1995 Constitution of the Republic of Uganda as amended
Commissions of Inquiry Act Cap 166
Electricity Act
Tax Appeals Tribunal Act
TEXT BOOKS
Administrative law by H.W.R Wade & C.F Forsyth, 11th edition, published by Oxford University Press, 2014
Black’s Law Dictionary edited by Bryan .A. Garner, 10th edition, published by Sweet & Maxwell, 2012
Public Law in East Africa by Musa Ssekaana, 1st edition, published by Law Africa Publishers (U) Ltd, 2009
CASE LAW
AG V BBC [1981] AC 303
Equator Inn Ltd v Tomasyan [1971] EA 405
Julia Sebutinde, Hon. Justice v Attorney General Constitutional Reference No.5 of 2005
Ken Lukyamuzi v Attorney General Constitutional Petition No.19 of 2006
Matovu v Sseviri [1979] HCB 174
R v Deputy Industrial Commissioner ex parte Jones [1962] 2 QB 677
Suleiman Ltd v Sayani [1963] EA 161
Yasin Sentumbwe and Anor v UCU High Court Civil Suit No.0022 of 2016
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