THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
MISCELLENOUS CAUSE NO. 6 OF 2014
1. BIN – IT SERVICES
2. BINS KAMPALA
3. GLOBE CLEAN SERVICES
4. EXCEL CLEANING SERVICES ……………………..APPLICANTS
SSABAGABO – MAKINDYE SUB - COUNTY………… RESPONDENT
BEFORE LADY JUSTICE FLAVIA SENOGA ANGLIN
This application for Judicial Review was brought under S.36 and 37 of the Judicature Act, and R.R. 3 – 8 of the Judicature (Judicial Review) Rules, 2009.
The Applicants sought the following orders:
The prerogative orders of certiorari be issued to quash the decision of the Sub-county Chief Ssabagabo, Makindye Sub-county suspending garbage collection activities by the Applicants; and
The prerogative order of prohibition is issued prohibiting the Respondent from interfering with the garbage collection activities of the Applicants.
The application is supported by the affidavit of Nduhura Paul, Managing Director of the 2nd Applicant with details of the grounds for the application. The Respondents filed an affidavit in reply deponed by one Ssemakula Henry.
The First, Second and Third Applicants filed affidavits in rejoinder explaining the grounds of the application.
The brief facts of the case are that the Applicants entered into contracts with private persons to collect garbage within Kampala and other areas. In 2013, Wakiso District invited tenders for garbage collection and the Applicants did not participate in the bidding process.
The successful bidder was M/S Consult Think Tankers For your Business Success.
Thereafter, the Ssabagabo Makindye Sub-County Chief invited all garbage collecting companies/individuals by telephone, for a meeting to be held on 26.02.14. The agenda was given out on the date of the meeting.
At the meeting, the representatives of the garbage collectors were informed that the tender for the garbage collection had been awarded to the successful bidder.
After deliberating at the meeting, the Sub-county Steering Committee unanimously resolved that all companies that had been collecting garbage be suspended.
The sub-county Chief was directed to issue suspension letters to the garbage collectors which he did, hence this application.
Both parties filed written submissions.
Counsel for the Applicants referred to the supporting affidavits and contended that the Applicants were collecting garbage from private individuals and not from public places and that they always paid their fees as demanded by Kampala City Council (KCC).
Their services extended to Lukuli areas, Makindye Ssabagabo and most areas surrounding Kampala. They had private agreements with individuals to collect garbage from their homes and went to the Respondents to pay their fees which the Respondents were silent about.
That when Wakiso District Local Government advertised tenders for garbage collection, the Applicants did not bid because they were not interested in collecting garbage from public areas but from individuals already known to them.
That the Applicants had licenses from National Environment Management Authority (NEMA) to transport waste to Kiteezi Land Fill in Nangabo Sub- County, Wakiso District.
Also that the Applicants wished to extend the services around Wakiso District and applied for trading licenses from Ssabagabo Makindye Sub- County, since they had complied with the applicable licensing and environmental laws but received no response.
But on 26.02.14, after a long silence from the Respondent, and without being given a hearing, the Applicants received the letters suspending them from garbage collection in Wakiso District, claiming that the tender had been given to the firm already mentioned.
It was asserted that the Applicants were not accorded due process.
Counsel then went through the law applicable in cases of this nature and relied upon the case of Rafiki Farmers Ltd vs. Kumi District Local Government and Another HC MC No 01/2010 – which sets out the principals for Judicial Review.
The case of Twinamatsiko Elly vs. Makerere University Council and 2 Others was also relied upon.
Counsel then prayed that court quash the decision of the Sub-county Chief contained in his letter of 26.02.14.
It was further stated that the letters suspending the services of the Applicants were written before the meeting called by the Sub-county as they were distributed during the meeting; an indication that the Respondents had already pre-determined to expel the Applicants without hearing them.
The submission was supported by the case of Twinomuhagi Pastoli vs. Kabale District Local Government Council and 2 Others  HCB VI by Kasule Ag. J as he was then was. The case concerns the failure to follow proper procedure and the principles of natural justice. And it was pointed out in that case that “where a decision or act complained of is tainted with illegality, irrationality and procedural impropriety, the application for Judicial Review succeeds”.
And the case of Boniface Arinze, Emmanuel Chukuma Onuaha and Another vs. The Commandant Aviation Police Entebbe  I HCB 154 for the holding that “a decision arrived at in breach of the Audi alterem patem rule is void absolutely and of no consequence”.
It was prayed then that the decision complained of be quashed for being irrational, unfair and improper and for being made in complete disregard of the principals of natural justice.
Counsel added that, despite the Respondents affidavits in reply, it is apparent that no hearing was conducted. And that all attempts by the Respondents to justify their actions by pleading the tendering process do not justify derogation from the principle of fair hearing.
Article 44 of the Constitution was relied upon, stating that the Respondent does not have any laws regulating garbage collection in Wakiso District, and that in other areas such a law allows for private contract to collect garbage from individuals and the authority then collects licensing fees. It was emphasized that the actions of the Respondent and the so called Bidder were disowned by Wakiso District Officials as indicated in Annexture E.
The order of prohibition was also prayed for to prevent the Respondents from acting unlawfully in the future, damages and costs of the suit.
In reply, Counsel for the Respondents submitted that as per paragraphs 5 – 10 of the Respondents affidavit, the Applicants were given a hearing on 26.02.15 as per minutes of the meeting.
They were informed of the advertisement of the tender for garbage collection to which they had not responded and that they had failed to pay local service tax, obtain trading licenses and had not obtained NEMA clearance or showed approved dumping sites.
The second schedule part 4 of the Local Government Act was relied upon to argue that enforcement of proper methods of disposal of refuse is one of the functions of a lower local Government. Counsel insisted that no one can provide garbage collection services without authorization from the Local Government and that the Applicants claims are baseless in view of the Local Government Act and the Trade Licensing Act.
Further that the Respondents have the mandate to regulate this service and that the Applicants had admitted operating in Makindye Division without trading licenses. It was denied that the Respondent ever refused to issue assessments for the payment of the said fees.
And that with such admission of acting illegally, the court cannot condone the illegality by according the Applicants to continue with the same. The Applicants he added had not shown that they were paying taxes to the Respondent.
That If the prayer for certiorari is granted, and the Applicants resume garbage collection, they will displace the successful bidder who is not a party to this application; and that would amount to nullifying the bidder without giving them a hearing.
Also that the Applicants had other alternative remedies before seeking judicial review. They ought to have complained to the Public Procurement and Disposal of Public Assets Authority.
The case of Erias Lukwago vs. Jennifer Musisi Miscellaneous Cause 116/2011 where Justice Mwangusya J relied upon the case of Uganda Crop Industries Ltd vs. URA hccs No. 05/2009 was cited for the holding that “judicial review can only be evoked in extreme circumstances where all other existent avenues and remedies have been exhausted”.
Concluding that the application has no merit, Counsel applied that the same be dismissed with costs.
There were submissions in rejoinder where Counsel for the Applicant reiterated his earlier submissions, adding that the Applicants could not seek the alternative remedy referred to by the Respondent as they are not complaining about the bidding process.
Bearing in mind that the submissions of both Counsel and the authorities cited in support thereof, the issue for court to determine is whether the Applicants should be granted the remedies sought.
The principles for grant of judicial review have long been established and reiterated by courts in many decided cases. The courts have clearly stated that “Judicial Review is not concerned with the merits of the decision made but with the decision making process itself. The purpose of the remedy being to ensure that the individual is given fair treatment by the authority to which he/she has been subjected and that public powers are exercised in accordance with the basic standards of legality, fairness and rationality”. – Refer to the case of Engineer Denis Sabiiti vs. Public Procurement and Disposal of Public Assets Authority Miscellaneous Application 36/2011 and Kasubo Joshua and the Commissioner of Contracts and Uganda Revenue Authority HC MA 44/2007, and Micro CARE Insurance Ltd vs. Uganda Insurance Commission Miscellaneous Application 0218/2009 among others.
The courts have further stated that “ The remedy is available to a party who shows that either the action was illegal, irrational or there was procedural impropriety, or there was a combination of any of the above grounds” – See Council of Civil Service Union vs. Minister of Civil Service  AC 374.
In the present case, the decision the Applicants seek to be reviewed is their suspension from garbage collection in Makindye Sub County.
As already pointed out herein, it is the contention of the Applicants that they were not given a hearing before their services were suspended and that all their applications for trading licenses to the Makindye Ssabagabo Sub County had been ignored.
The Respondent insists that the Applicants were heard during the meeting held on 26.02.14, by the Makindye Sub County Council.
However, looking at the agenda Annexture “C” to the affidavit in reply, the items were:- Prayer, Self introduction, Communication from the Chair, Presentation of Committee Resolutions on Revenue arrears, Reaction from Garbage collection companies, Way forward and Closure.
The agenda was given out at the meeting that had been called by telephone. The Applicants were informed at the meeting that the tender for garbage collection had been awarded to the successful bidder, whereupon the Sub County Steering Committee unanimously resolved that all other companies that had been collecting garbage be suspended. The Sub-county Chief then issued the letter of suspension.
The Applicants had not participated in the bidding process for garbage collection as they insisted that they had contracts with private individuals and not the Sub-county.
Decided cases have established that, “in making decisions, the requirement is that the decision makers correctly understand the law that regulates the decision made and give effect to it”. – Refer to the case of Margaret Ntorantyo vs. Mukono District Council H.C. Miscellaneous Application 10/05.
The letter of suspension in the present case does not indicate under what law the suspension was carried out. The minutes marked Annexture “C” to the affidavit in reply, Minute Strc/gc/04/2/2014, show that the Sub-county Finance Committee found that so many companies were collecting garbage in Makindye illegally due to the following:-
None remittance of local service tax to the sub county since 2008.
Failure to obtain a business license from the sub-county or failure to present a valid trading license to the sub-county authorities.
The sub-county authority was not sure whether the companies had dumping sites regulated by NEMA or other authorities.
Failure to present a NEMA certificate allowing the companies to engage in garbage collection.
Refusal to bid when the district advertised.
The decision to suspend the garbage collection companies was made on 06/2/2014 under minute Strc/gc/of that same date.
The laws governing remittance of local service tax, obtaining a trading licenses and NEMA certificates, regulations of dumping sites and offer of bids for tender are all different with different legal consequences.
The failure to remit local service tax is governed by S.15 Local Governments (Amendment) Act No. 2 of 2008. It provides for the mode of recovery of tax and penalty for non-payment. Under S.15 (1) of this Act, the Respondent had the option to surcharge 50% on the amount remaining unpaid; or the Applicants were either liable to prosecution under S. 15 (3) or the Respondent could have sued them for recovery of the local service tax under S. 15 (4).
None of those options were taken by the Respondents. Those provisions of law are mandatory and failure by the Respondent to follow the procedure for recovery of local tax amounted to procedural impropriety.
According to decided cases “procedural impropriety” includes failure to adhere to procedural rules expressly laid down in a statute or legislative instrument by which such authority exercises jurisdiction to make a decision”. See Pastoli Twinomuhangi Vs Kabale District Local Government (supra)
Trading licenses are governed by S.8 of the Trade (Licensing) Act but court observes that there is no provision under the Act requiring a trading license for the business of garbage collection. This is because under S.8 (2) of the Trade (Licensing) Act, no trading license is required in event for trade or business in respect of which a separate license is required by or under any written law.
The National Environment (Waste Management) Regulations SI 153-2 - Reg. 7 (1) – empower NEMA to issue a license for transportation of waste/garbage.
NEMA is therefore the authority that can suspend or revoke a license issued upon being satisfied that the conditions for grant of the license had not been complied with. While Reg. 28 – provides for offences and penalties for a person who commits an offence under the Regulations.
The First, Second and Third Applicants Annexture G and D and their affidavits in rejoinder show that they had licenses from NEMA.
In those circumstances, the Applicants did not need permission from the Respondents to carry out the activities of garbage collection.
The argument by the Respondent that the Applicants had not responded to the tender for garbage collection and that allowing them to resume garbage collection will displace the company that won the tender cannot be sustained on the grounds that, the Applicants have all along maintained that they had contracts with private individuals and were not interested in working for the Respondent. The argument that the law did not require them to submit bids in order to enter into private contracts to collect garbage was not disputed by the Respondent. And it is clearly indicated in the minutes that the successful bidder was ready and willing to talk to them but was forbidden to do so by the Respondent. Court accordingly finds that the Respondent acted in excess of its powers by acting on mere conjecture by suspending the Applicants on the ground interalia, that they had no permission from NEMA to transport garbage.
In suspending the Applicants, none of the laws applicable to the circumstances were followed. The Respondent acted outside the scope of its authority to suspend the Applicants licenses. The action of the Respondent was illegal.
It is also apparent from the minutes of 26.02.14 Annexture “C“to the affidavit in reply, that the Sub-county Committee had already sat and come up with resolutions, that included the suspension of the Applicant Companies.
Item 4 of the agenda is clear: “presentation of Committee resolutions on revenue arrears”. Minute 8rrc/gc/04/2/14 is to the effect that “The Sub County Chairperson called upon the Sub-county Chief to take the members through the resolutions….”
While the Applicant Companies were given an opportunity to react to the “resolutions” the reactions cannot be said to amount to a hearing when it is very clear that the Respondent had already made up its mind to suspend the Applicants.
The Applicant Companies were required to go out- Strc/gc/06/2/14, and reach a unanimous decision. Upon their return to the meeting they requested to be given at least two months to organize themselves and come back with a meaningful response to the issues raised. This request was denied. The resolution to suspend the companies was passed and the Company which had been granted the contract was barred from dealing with the Applicant companies until they were cleared. The Sub-county Chief was then instructed to issue the letters of suspension.
Failure to grant the Applicants time to give a meaningful response to the issues raised by the Sub-county Committee before passing the resolution to suspend them amounted to failure to observe the rules of natural justice. There was procedural unfairness on the part of the Respondent whose mind had already been made up before the meeting with the Applicants.
Refer to the case of Paul Kawanga Semogerere and 2 Others vs. Attorney General  KLR 845 CA and Ridge vs. Baldwin  2 WLR 935
Courts have consistently emphasized that “it is a well settled law that the right to be heard is a principle of natural justice” – See the case of Mpungu and Sons Ltd vs. Attorney General and Another Civil Appeal 17/2001.
It is also a fundamental right under Article 42 of the Constitution of Uganda for parties to be accorded just and fair treatment in administrative decisions. It incorporates the right to a fair hearing under Article 28, which includes the right of being heard.
The failure of the Sub-County Committee to accord the Applicants a hearing before arriving at its decision to suspend their services deprived the Applicants of their right to fair and just hearing.
It has been declared by the Courts that “a decision reached by an administrative body in disregard of the principles of fair hearing or natural justice is null and void”- Refer to Ridge Vs Baldwin  AC 40, and Boniface Arinze and 2 Others Vs The Commandant Aviation Police Entebbe (Supra)
Court finds that the Applicants have also shown in the present case that the decision arrived at by the Respondent was made without following the appropriate procedure on one hand, that it was also without jurisdiction on the other hand and that the rules of natural justice were not complied; with thereby unfairly impinging on their rights and causing damage to them.
An order of certiorari will accordingly issue to quash the decision of the Respondent suspending the Applicants from garbage collection. I am fortified in my decision by the case of Father Francis Balukirwe Muntu Vs Kyambogo University HC MA 643/200, where appointments of staff were made contrary to the law establishing the University and court declared them illegal and an order of certiorari issues to quash the appointments.
The next issue to determine is whether the order of prohibition is available to the Applicants:
Courts have established that the remedy of prohibition “is an order directed to an inferior tribunal or body forbidding that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for the excess of jurisdiction or absence of it, but also for departure from the rules of natural justice. It does not however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings”. - See Twinamasitko Elly Vs Makerere University Council and 2 others (supra)
Court can also grant the remedy of prohibition “to prevent a public body from acting unlawfully in the future”- Refer to Constitutional and Administrative Law, 9th Edition, P. 57, by Halairwe Barnette.
The suspension order that was issued by the Respondent in the present case has been cancelled by the order of certiorari, and to continue enforcing the same would amount to contempt of court by the Respondent. But since the Respondent has a duty to implement lawful policies and decisions, and some of the Applicants admitted not paying the necessary taxes, the order of prohibition can only issue in the circumstances to prevent the Respondent from acting unlawfully in the future. The Respondent has to follow the set down procedure and the law and also adhere to the rules of natural justice in its dealings with the Applicants or any other person in the future. The order of prohibition is issued in those terms.
The final issue to comment on is whether the Applicants had alternative remedies to pursue before pursuing judicial review:
Counsel for the Respondent submitted that the Applicant ought to have exhausted all other remedies open to them before seeking judicial review. For example that, they should have complained to the Public Procurement and Disposal of Public Assets (PPDA). He relied on the case of Lukwago Erias, Lord Mayor KCCA Vs Jennifer Musisi Executive Director, KCCA, and HC MA 116/2011. The case is to the effect that “judicial review can only be invoked in extreme circumstances where all other existent avenues have been exhausted”. See also Mustafa Ramadan C.A. 25 / 96 where Justice Berko held that “a person cannot apply for judicial Review unless all administrative remedies have been exhausted”.
However, it is apparent from the facts of this case that the Applicants were not challenging the procurement process whereby the contract for garbage collection had been awarded to the successful bidder under the PPDA Act. The Applicants insist that it is clear that procurement laws did not apply to instance such as prevailed in this case where they were contracting with private persons. As already pointed in this ruling, the Applicants are complaining of being suspended form garbage collection without the proper procedure and laws being followed and without being accorded the fundamental right to a fair hearing.
In those circumstances this court finds that the Applicants had no other alternative remedy open to them to bar them from pursuing judicial review. The arguments of Counsel for the Respondent in that regard are consequently rejected.
As courts have repeatedly emphasised “prerogative orders look to the control of the exercise and abuse of power by those in public offices, rather than at providing final determination of private rights which is done in normal civil suits”. Refer to the case of John Jet Tumwebaze Vs Makerere University Council and 3 Others C.A. 3053/2005, Justice Kasule as he then was.
The Applicants applied for damages in case, and court has the discretion to grant damages. Under rule 8 (2) of the Judicature (Judicial Review) Rules, 2009, O. 6 rules 1 – 5 Civil Procedure Rules shall be applied to a statement relating to a claim for damages as they apply to a pleading. This court is of the view that for the rule applies to cases of judicial review where special damages are claimed, in which case particulars of special damage would need to be clearly set out.
In the present case the Applicants are seeking damages for inconvenience occasioned by the suspension. Counsel for the applicants did not propose any figure considered suitable in the circumstances, court will therefore be guided in this respect by general principles for the award of nominal damages.
“A party is entitled to “nominal damages” where inter alia “the party is not concerned to raise the question of actual loss, but brings his action simply with the view of establishing the right”. Refer to Principles Governing the Award of Damages in Civil Cases, A Paper presented by Hon. Mr. Justice Bart M. Katureebe, JSC, on 18.06.2008.
The Applicants abrupt suspension in circumstances already outlined in this ruling must have affected them adversely. Court therefore allows their application for damages and indeed awards them nominal damages of Shs. 500,000/ each.
The Applicants also prayed for costs.
Under S. 2 (1) of the Civil Procedure Act and as established by the case of Premchand Raichand Ltd and Another Vs Quarry Services of East Africa Ltd and Another (No.3) E.A. C. A. 41//1970  EA 162, the award of costs is based on the principle that “a successful party ought to be fairly reimbursed for costs incurred”.
Courts have further stressed that “a successful party is entitled to costs and can only be denied for good reason”- See James Mbabazi and Another Vs C.A.C.APPL. Ref No.15/2004
Applying the above principles to this case it follows that the Applicants are entitled to and are hereby granted the costs of the application.
The application is allowed for all the reasons set out herein and the following remedies are granted:
The prerogative order of certiorari is issued to quash the decision of the Sub-county Chief Ssabagabo, Makindye Sub-county, suspending the garbage collection activities of the Applicants.
The prerogative order of prohibition is issued to prevent the Respondent from acting unlawfully in the future. The Respondent has to follow the set down procedures and the law and also adhere to the rules of natural justice in its dealings with the Applicants or any other person in the future.
General damages of Shs. 500,000/- each are granted to the Applicants.
Costs of the application are also awarded to the Applicants.
FLAVIA SENOGA ANGLIN