Lordships view are wide enough to cover the use by an applicant of any form of procedure by
which the High Court can be approached to invoke the exercise of any of its powers. They are not
confined to the procedure appropriate to an ordinary civil action, although they would include
that procedure until other provision was made under Article 19(6). The clear contention of the
Constitution is that a person who alleges that his fundamental rights are threatened should have
unhindered access to the High Court is not to be defeated by any failure of Parliament or the rule
making authority to make specific provision as to how that access is to be gained. "
My understanding of the above opinion of the Privy Council is two fold. In the first instance that
the jurisdiction created by Guyana's Article 19(2) equivalent to our Article 22(1) is that such
jurisdiction is subject to only the equivalent of our Article 22(5) of the Constitution beyond which
it is unqualified. No law made by Parliament dealing with ordinary Civil Actions against
Government, as in our case, the Civil Procedure and Limitation (Miscellaneous Provision) Act,
1969 would regulate applications under Article 22(1) of our Constitution. The law to regulate
such applications must be made pursuant to and in conformity with Article 22(5) of the
Constitution. The Civil Procedure and Limitation (Miscellaneous Provisions) Act is definitely not
made pursuant to or in fulfillment of the provisions of Article 22(5) of our Constitution.
Secondly, that the intention of the Constitution under Article 22(1) was to create new jurisdiction
for the High Court (it did not exist until 1962 Constitution) so that a person who alleges that his
fundamental rights are threatened should have unhindered access to the High Court. Act 20 of
1969, if it were held to apply to such applications as the present one, would be restricting access
to the High Court which is not the intention of the Constitution.
The above opinion of the Privy Council was referred to with approval by the Court of Appeal of
Guyana in the case of Attorney General-vs- All & 4 Ors [1989] LRC (Const ) 474 which was
considering an application under the equivalent of our Article 22( 1) of the Constitution. Harper
JA stated at page 526:
"In my view, a citizen whose constitutional rights are allegedly trampled upon must not
be turned away from the Court by procedural hiccups. Once a complaint is arguable a
way must be found to accommodate him so that other citizens become knowledgeable of
their rights. "The present preliminary objection is no doubt a procedural hiccup intended to stop this
application from being heard. However, for the reason given above, I am not inclined to allow
that to happen. I would hold that Section 1 of the Civil Procedure (Miscellaneous Provisions) Act,
1969 does not apply to the application made to this Court under Article 22 (1) of the Constitution
of Uganda. I would dismiss the preliminary objection with costs.
Signed
F.M.S. EGONDA-NTENDE
JUDGE
2/ 12/ 1993