Wakilii

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

High Court · [2018] UGHCCD 289 · 2018 Judicial Review Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for judicial review challenging the Minister of Health's decision to reject the applicant's nomination to the National Drug Authority Board
Decision
Judicial review granted; Minister's decision quashed; applicant to be appointed to the National Drug Authority Board within 30 days

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Holding

The High Court held that the Minister of Health acted ultra vires in rejecting the applicant's nomination as Pharmaceutical Society representative to the National Drug Authority Board. Under the National Drug Policy and Authority Act, the Minister's appointment power is limited to the Chairperson and two other public appointees, not representatives elected by professional associations. The Minister's decision was also procedurally improper for failing to accord the applicant a fair hearing before rejecting his nomination. The court granted certiorari quashing the Minister's decision and mandamus directing the Minister to facilitate the applicant's appointment.

Outcome

Judicial review granted; Minister's decision quashed; applicant to be appointed to the National Drug Authority Board within 30 days

Facts

The applicant, a practising pharmacist, was elected by the Pharmaceutical Society of Uganda (PSU) as its representative to the National Drug Authority Board on 25 November 2016. PSU notified the Minister of Health of this election on 28 November 2016. On 19 May 2017, the Minister wrote to PSU requesting nomination of a different representative, citing advice from the Attorney General. The Attorney General's opinion raised concerns about potential conflict of interest, noting that the applicant had sworn an affidavit in support of a court case against the National Drug Authority, and that companies he directed had been found in possession of unauthorised medicines in 2016 and entered into a memorandum of understanding with the Authority. The applicant was not given a hearing before his nomination was rejected. The applicant filed for judicial review seeking certiorari to quash the Minister's decision, mandamus to compel his appointment, and damages.

Issues

  1. Whether the Minister of Health has a mandate to appoint and/or denominate the applicant as representative of the Pharmaceutical Society of Uganda to the National Drug Authority.
  2. Whether the applicant was accorded a right to be heard before his nomination was rejected.
  3. What remedies are available to the applicant.

Orders

  • The decision of the Minister of Health to denominate the applicant and refuse to appoint him to the Board of National Drug Authority is quashed.
  • The Minister of Health is directed to issue an instrument that facilitates the applicant to take up his position as the Representative of the Pharmaceutical Society of Uganda.
  • 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.
  • Costs of this application are awarded to the applicant.
  • The claim for general damages is dismissed for failure to prove.

Rules and key headnotes

Judicial Review — Grounds — Illegality — Minister Acting Ultra Vires Statutory Powers
Where a statute confers on a Minister the power to appoint only specified categories of persons (the Chairperson and two other public appointees), the Minister acts ultra vires and illegally in purporting to exercise a power to vet, approve, or reject representatives elected by professional associations under other provisions of the same statute.
Statutory Interpretation — Construction of Appointment Provisions — Limits of Ministerial Discretion
Where a statute distinguishes between persons appointed by a Minister and persons who serve as representatives by virtue of their election by specified associations, the Minister has no implied power to denominate or reject the association's elected representative. If the legislature intended the Minister to have such power, it would have expressly provided for it.
Administrative Law — Exercise of Discretion — Limits — Discretion Must Be Exercised Within Statutory Boundaries
Discretionary power conferred upon legal authorities is not absolute but is subject to general legal limitations. Discretion must be exercised in the manner intended by the empowering Act. A Minister cannot invoke discretion to override clear provisions of law or to arrogate to herself powers not conferred by statute.
Administrative Law — Natural Justice — Right to a Fair Hearing — Duty Before Adverse Decision
Where a decision-making authority makes serious allegations against an individual and bases a decision to reject that individual's nomination on those allegations, the authority has a duty to accord the individual a fair hearing before making the adverse decision. A letter merely communicating a verdict of rejection without inviting representations does not satisfy the requirement of a fair hearing.
Judicial Review — Procedural Impropriety — Failure to Act Fairly
Procedural impropriety arises when there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may consist in non-observance of the rules of natural justice or failure to act with procedural fairness towards one affected by the decision.
Judicial Review — Remedies — Certiorari — Grounds for Quashing
A decision of a public authority will be quashed on judicial review where it is tainted by illegality (acting beyond statutory powers) or procedural impropriety (failure to accord a fair hearing), even if the authority acted in what it believed to be the public interest.
Judicial Review — Remedies — Mandamus — Requirements
An applicant for an order of mandamus must establish: (a) a clear legal right and corresponding duty on the respondent; (b) that some specific act which the law requires that particular officer to do has been omitted; (c) lack of an alternative remedy, or that any alternative is inconvenient, less beneficial, or totally ineffective.

Legislation cited (11)

Cases cited (12)

  • John Jet Tumwebaze v Makerere University Council and 2 Others (Miscellaneous Cause No. 353 of 2005)
  • DOIT 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 and Dr Medard Bitekyekerezo (High Court 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 Kiryabwire and Others v Attorney General (High Court 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 289 (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.