Wakilii

Petnum Pharmacy Limited v National Drug Authority (MISCELLANEOUS CAUSE NO.56 OF 2018)

High Court · [2018] UGHCCD 104 · 2018 Judicial Review Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Judicial review application for prerogative orders challenging respondent's refusal to issue certificate of suitability of premises based on professional guidelines
Decision
Guidelines of 2017 and 2018 quashed; mandamus issued to compel issuance of pharmacy licence at Mulago-Kafeero Zone; damages and costs awarded to applicant

Observed later treatment

Cited — treatment unverified cited in 2 (treatment unverified) Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

No adverse treatment recorded Cited 2 times with no adverse treatment recorded; not yet tested on the merits. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The High Court held that the National Drug Authority Licensing Guidelines 2017 and 2018 prescribing minimum distances between pharmacies were ultra vires and illegal, having been made by the Secretary to the Authority without lawful authority. Under the National Drug Policy and Authority Act, the power to make professional guidelines vests in the Authority itself, not the Secretariat or Secretary. The Secretary usurped the Authority's core function in contravention of the principle delegatus non potest delegare. Decisions refusing the applicant's certificate of suitability based on these illegal guidelines were accordingly quashed. The applicant was awarded mandamus, damages, and costs.

Outcome

Guidelines of 2017 and 2018 quashed; mandamus issued to compel issuance of pharmacy licence at Mulago-Kafeero Zone; damages and costs awarded to applicant

Facts

Petnum Pharmacy Limited operated a retail pharmacy at Luzira under licences for 2017 and 2018. In June 2017 the building was sold and the new landlord declined to renew the tenancy. The applicant sought to relocate but the respondent National Drug Authority rejected three successive applications for certificate of suitability of premises at different locations on grounds that the proposed premises did not comply with distance requirements in Professional Licensing Guidelines 2017 (200 metres) and 2018 (500 metres). The applicant was evicted from Luzira on 3 January 2018. On advice of the Regional Inspector of Drugs, the applicant relocated stock to Mulago-Kafeero Zone to prevent expiry while pursuing approval. The respondent refused a certificate on grounds the new premises were 33 metres from an existing pharmacy, contrary to the 2018 Guidelines requiring 500 metres separation. The applicant challenged the legality of the Guidelines and the respondent's refusal decisions.

Issues

  1. Whether the National Drug Authority Licensing Guidelines 2017 and National Drug Authority Guidelines 2018 are illegal and/or ultra vires.
  2. Whether the decisions of the respondent regarding distance guidelines of location of pharmacies as communicated to the applicant vide letters dated 19 July 2017, 13 November 2017 and 20 February 2018 are illegal and/or ultra vires.
  3. What remedies are available to the applicant.

Orders

  • The Professional Guidelines of 2017 and 2018 are hereby quashed for illegality.
  • An order of Mandamus doth issue compelling the respondent to issue a licence to the applicant to operate a Pharmacy business on the premises located at Mulago-Kafeero Zone.
  • The applicant is awarded damages of UGX 45,000,000 with interest of 15% from the date of this ruling.
  • The applicant is awarded costs of this application.
  • The preliminary objection is dismissed with costs.

Rules and key headnotes

Administrative Law — Ultra Vires — Subsidiary Legislation — Unlawful Delegation
Where an Act vests the power to make professional guidelines in a statutory authority, the secretariat or secretary of that authority cannot usurp that power and purport to make guidelines on the authority's behalf without lawful delegation. Such guidelines are ultra vires and of no legal effect.
Administrative Law — Delegatus Non Potest Delegare — Core Functions
The principle delegatus non potest delegare prohibits a delegate from further delegating a core statutory function unless expressly authorised by statute. A statutory authority's power to make professional guidelines is a core function that cannot be delegated to the secretariat without clear statutory authority.
Statutory Interpretation — Implied Powers — Day-to-Day Operations Versus Core Functions
A statutory provision empowering a secretariat to manage day-to-day operations of an authority does not by implication confer power to make professional guidelines or substantive policy decisions that constitute core functions of the authority itself. Implied powers extend only to what is reasonably necessary to enable performance of the expressly conferred administrative function.
Administrative Law — Ultra Vires — Subsidiary Legislation — Adding Conditions Not in Parent Statute
Where regulations made under a parent Act prescribe the considerations for approval of licences, guidelines purporting to add further mandatory conditions not contemplated by the Act or regulations are ultra vires. Distance restrictions between licensed premises not provided for in the enabling statute or regulations cannot be imposed by administrative guidelines.
Administrative Law — Judicial Review — Effect of Ultra Vires Guidelines — Decisions Based on Invalid Rules
Where administrative decisions are made in reliance on guidelines that are themselves ultra vires and illegal, those decisions are equally illegal and liable to be quashed on judicial review.
Tort Law — Misfeasance in Public Office — Damages Against Public Bodies
A public body may be liable in damages for misfeasance in public office where it deliberately and dishonestly abuses power or engages in deliberate maladministration that it knew or ought to have known would cause loss to an individual. The fact that an act is ultra vires does not of itself entitle an individual to damages; there must be a recognisable tort, malice, or knowledge of likely harm.
Administrative Law — Judicial Review — Preliminary Objections — Locus Standi Based on Alleged Illegality
A preliminary objection alleging that an applicant lacks locus standi because the applicant is operating illegally cannot be sustained where the alleged illegality depends on contested facts that require evidence and adjudication. A preliminary objection must raise a pure point of law capable of determination on assumed facts without evidence.

Legislation cited (30)

Cases cited (21)

  • Mukisa Biscuit Company v Westend Distributors Limited (1969) EA 696
  • Cullimore v Lyme Regis Corporation [1961] 3 All ER 1008
  • 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)
  • Hotel and Catering Industry Training Board v Automobile Proprietary Limited [1969] 2 All ER 589
  • Kasule v Attorney General [1971] 29 EA
  • Horizon Coaches Limited v Mbarara Municipal Council & Anor (Miscellaneous Application No. 7 of 2014)
  • Makula International v His Eminence Cardinal Nsubuga Wamala and Another [1982] HCB 11
  • Hughes v Kingston Upon Hull CC [1999] QB 1193
  • Edith Nantumbwe Kizito v Miriam Kutesa (Court of Appeal Civil Application No. 294 of 2013)
  • MA 966 of 2011 Mugoya Construction vs. Central Electrical
  • Nakachwa Florence Obiocha v National Drug Authority & Donna Asiimwe Kusemererwa (High Court Miscellaneous Application No. 186 of 2017)
  • Court of Appeal Miscellaneous Application No. 366 of 2017
  • Hon Anifa Kawooya v AG & NCHE (Constitutional Court Miscellaneous Application No. 46 of 2010)
  • Agarwal Ayengar & Co v State AIR 1951 Bom 397
  • Boddington v British Transport Police [1998] 2 WLR 639
  • Jeff v New Zealand Dairies Board [1967] 1 AC 551
  • R v Race Relations Board ex parte Selvarajan [1975] 1 WLR 1686
  • Municipal Board of Mombasa v Mohanlal Kala (1956) EACA 319
  • Three Rivers District Council v Governors of Bank of England (1998) 11 Admin LR 281

Cases citing this judgment (2)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

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

Petnum Pharmacy Limited v National Drug Authority (MISCELLANEOUS CAUSE NO.56 OF 2018) [2018] UGHCCD 104 (31 October 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.