Wakilii

Ekau David v Attorney General and Another (Miscellaneous Cause No.268 of 2017)

High Court · [2018] UGHCCD 306 · 2018 Judicial Review Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for judicial review seeking certiorari to quash ministerial decision, mandamus to compel appointment, and related relief
Decision
Judicial review application granted; Minister's decision quashed; applicant to be appointed within 30 days

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Holding

The High Court held that the Minister of Health acted ultra vires in refusing to appoint a representative validly elected by the Pharmaceutical Society of Uganda to the National Drug Authority Board. Under s.3 of the National Drug Policy and Authority Act, the Minister's appointment power is limited to appointing the Chairperson and two other persons from the public; she has no statutory power to vet or reject representatives elected by designated professional associations. The Minister's decision was also procedurally improper for failure to accord the applicant a fair hearing before rejecting his nomination. The court granted certiorari quashing the Minister's decision and mandamus compelling the Minister to facilitate the applicant's appointment.

Outcome

Judicial review application granted; Minister's decision quashed; applicant to be appointed within 30 days

Facts

The applicant, a practising pharmacist and member of the Pharmaceutical Society of Uganda since 2003, was elected at the Annual General Meeting on 25 November 2016 as the Society's representative to the National Drug Authority. The Secretary of the Pharmaceutical Society notified the Minister of Health by letter dated 28 November 2016. On 19 May 2017, the Minister wrote to the Pharmaceutical Society requesting nomination of another representative, alleging that the applicant had a conflict of interest due to pending litigation against the NDA in which he swore an affidavit, and that his companies had been found in possession of unauthorised medicines in 2016 resulting in a Memorandum of Understanding with NDA. The Minister relied on legal advice from the Attorney General that the applicant was not a fit and proper person to serve on the Board. The applicant was never afforded a hearing before his nomination was rejected. The Pharmaceutical Society refused to nominate another representative.

Issues

  1. Whether the Minister of Health has a mandate to appoint and or denominate the applicant.
  2. Whether the applicant was accorded a right to be heard.
  3. What remedies are available to the applicant.

Orders

  • Certiorari granted quashing the decision of the Minister of Health dated 19 May 2017 barring the applicant from being inaugurated to serve as a representative of Pharmaceutical Society of Uganda to the National Drug Authority.
  • Mandamus issued directing the Minister of Health to issue an instrument facilitating the applicant to take up his position as the Representative of the Pharmaceutical Society of Uganda to the National Drug Authority.
  • The Minister of Health is ordered to ensure that the representative takes up his role as a member of National Drug Authority within 30 days from the date of this ruling.
  • Application for general damages dismissed for failure to prove damage.
  • Costs of the application awarded to the applicant.

Rules and key headnotes

Judicial Review — Ultra Vires — Minister exceeding statutory powers
Where a statute prescribes specific powers of appointment to a Minister and designates that representatives of professional associations shall be appointed by those associations themselves, the Minister acts ultra vires and in excess of jurisdiction by purporting to exercise a power to vet or reject representatives validly elected by the designated associations.
Statutory Interpretation — Limits of ministerial discretion — Express powers
Where legislation confers specific powers of appointment on a Minister in express terms, the Minister cannot expand those powers by relying on alleged 'best practices' or 'established procedures' that lack statutory foundation. Discretion must be exercised within the boundaries set by the empowering statute.
Natural Justice — Right to be heard — Fair hearing before adverse decision
Even if a decision-maker possessed the statutory power to reject a nomination, principles of natural justice require that the affected person be accorded a fair hearing before serious allegations are relied upon to reject their appointment. A letter merely communicating a verdict of rejection without inviting representations does not constitute the fair hearing required by natural justice.
Judicial Review — Remedies — Certiorari and Mandamus
Where a public authority acts ultra vires by exceeding its statutory powers and in breach of natural justice, the court will grant certiorari to quash the unlawful decision and mandamus to compel the authority to act within the scope of its lawful powers.
Discretionary Powers — Exercise of discretion — Limits and principles
Discretionary power conferred upon legal authorities is not absolute but is subject to general legal limitations. Discretion must be exercised reasonably, in good faith, and in accordance with the empowering statute. Courts will intervene where discretion is exercised in bad faith, arbitrarily, capriciously, or in a manner inconsistent with the policy of the statute.

Legislation cited (11)

Cases cited (12)

  • John Jet Tumwebaze v Makerere University Council & 2 Others (Miscellaneous Cause No. 353 of 2005)
  • DOTT Services Ltd v Attorney General (Miscellaneous Cause No. 125 of 2009)
  • Balondemu David v The Law Development Centre (Miscellaneous Cause No. 61 of 2016)
  • R v Commission for Racial Equality ex p Hillingdon LBC [1982] QB 276
  • Sharp v Wakefield [1891] AC 173
  • Kimpi Isabirye v Attorney General & Dr Medard Bitekyekerezo (Miscellaneous Cause No. 23 of 2017)
  • Twinomuhangi vs Kabale District and others [2006] HCB130
  • R vs Aston University Senate ex p Roffey [1969] 2 QB 558
  • R vs Secretary of State for Health ex p Furneaux [1994] 2 All ER 652
  • Hon Justice Geoffrey Kiryabivire & Others v Attorney General (Miscellaneous Application No. 783 of 2016)
  • Bendicto Musisi v Attorney General (HCCS No. 622 of 1989)
  • Rosemary Nalwadda v Uganda Aids Commission (HCCS No. 67 of 2011)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Ekau David v Attorney General and Another (Miscellaneous Cause No.268 of 2017) [2018] UGHCCD 306 (24 August 2018)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.