THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(EXECUTION AND BAILIFFS DIVISION)

MISCELLANEOUS APPLICATION NO. 1426 OF 2017

IN THE MATTER OF AN APPLICATION FOR MANDAMUS

AND

IN THE MATTER OF

CHARMS (UGANDA LIMITED) ------------------------- APPLICANT

VS.

1. SECRETARY TO TREASURY MINISTRY OF FINANCE & PLANNING
2. ATTORNEY GENERAL -----------------------------RESPONDENTS

BEFORE LADY JUSTICE FLAVIA SENOGA ANGLIN

RULING

This application was brought under Article 28 (a) and 42 of the Constitution, S.36 of the Judicature Act, and rules 5, 6 and 7 of the Judicature Review (Judicature Review) Rules 2009.

The Applicant seeks an order of mandamus to be issued against the First Respondent directing him to pay US Dollars $383,083.78 and Ug. Shs. 86,204,000/- inclusive of general damages of Shs. 50,000,000/- and interest at the rate of 12% per annum from 20.02.17, the date of judgment till payment in full, together with taxed costs of Shs. 61,194,628/-.

Costs of the present application were also applied for, plus any other relief deemed appropriate by court.

The grounds for the application are that:-

1. The Applicant supplied 33 automated rice hullers to the Government at the cost of US Dollars $1,060,980.  26 of the hullers were installed at various places.  The Defendant paid a total of US Dollars $736,580 leaving an outstanding balance of $324,400.
2. On 09.05.13, the Applicant raised invoices for the outstanding US Dollars $324,400 for which settlement was to be effected within 60 days from the date of the final invoice.

However, the Respondents have refused, failed and or neglected to pay the outstanding sums, in breach of the contract executed by the parties.

On 20.02.17, court ruled that the Respondents pay the sums of US Dollars 383,083.73, Ug. Shs. 86,204,000/- inclusive of general damages of Shs. 50,000,000/- and interest at the rate of 12% per annum from the date of judgment till payment in full, together with taxed costs of Shs. 61,189,628/-.

The decree was never appealed by the Second Respondent but all requests for payment made by the Applicant have been ignored.

The application is supported by the affidavit of Wahab Bukenya an Advocate of the High Court.

There is an affidavit in reply deponed by C. Gashirabake Ag. Solicitor General in the Ministry of Justice and Constitutional Affairs.  He states interalia that, the Ministry of Justice and Constitutional Affairs effects payment of court orders based on funds released by the Ministry of Finance, Planning and Economic Development on a quarterly basis.

The Ministry also effects payment to all judgment creditors based on the funds allocated.

That the Ministry will receive funds for the next quarter and the Applicant will be considered for payment.

That the Government and or the Second Respondent has not refused to neglected its duty to pay the Applicant.

It was prayed that the Applicant holds the application in abeyance while the Respondents expeditiously explore all options in Government to settle the claim.

The application was heard on 13.07.17 in presence of both Counsel.

Counsel for the Applicant went through the motion referring to the orders sought and the affidavit in support of the application paragraphs 2-7.

He submitted that the Applicants have incurred numerous costs and raised invoices which were never settled, as a result of which they suffered great financial loss.

He pointed out that the transaction took place in 2012 but the Applicants have not been paid.

Judgment was given with interest from the date of judgment yet a lot of costs have been incurred.  It was prayed that the application be allowed.

In response to the affidavit in reply paragraph 3- Counsel submitted that while the Ministry of Justice talks of payment being made on a first come first out basis, yet they pay other people before claimants are put on the list in total disregard of when payment became due.

Further that, payment was decentralized in a new system and it has to go through the Ministry of Justice.

That unless mandamus issues, payment will not be made.  It was reiterated that application be allowed with costs.

Counsel for the Respondent in reply relied upon the affidavit in reply.  She emphasized that the judgment against Government is not denied in the sums claimed, and that a certificate of order against Government was issued in 22.05.17.

However that, the money has not been released by the Ministry of Finance.  And that the new policy is that the line Ministries and in this case the Ministry of Local Government are the ones to meet the payment.

It was then prayed that the Applicants wait for two months when the money will be released.  And that each party should bear its own costs.

In rejoinder, Counsel for the Applicant argued that, the essence of mandamus is to consider the Applicant and the circumstances in which in good faith the Applicant supplied goods to Government and five years later no payment has been effected.  And financial obligations are incurred to try and enforce payment.

He insisted that the application be allowed. And if the money is not paid within the time proposed by Respondent, notice to show cause will be applied for.

Also that, costs follow the event unless court for good cause decides otherwise.  Therefore that costs should be awarded.

Whether the application should be allowed.

It is not disputed that the High Court has discretion under S.37 (1) of the Judicature Act, “to grant an order of mandamus in all cases in which it appears to be just and convenient to do so.  And that under 37 (2) of the same Act, the order may be made unconditionally or on such terms and conditions as the High Court thinks fit”.

The circumstances to be established by the Applicant to obtain a writ of mandamus have been repeatedly stated by the courts.  They are:-

• A clear legal right and a corresponding duty in the Respondent.
• A specific act or thing which the law requires that particular officer to do has been omitted to be done by him.
• Lack of any alternative remedy
• Whether the alternative remedy exists but is inconvenient, less beneficial or less effective or totally ineffective.

But what should not be ignored is the principle that “mandamus will not issue to enforce doubtful rights or those rights that are the subject of dispute.  The duty to perform the act must be undisputed and plainly defined”.  Refer to MA 693/2006 and Nampoga Robert & Another vs. Attorney General HCC MA 0048/09.

The Respondents in the present case do not deny the judgment given against Government in the sums claimed.  And that the certificate of order against Government was issued on 22.05.17, indicating the sums to be paid, the rate of interest and when it would begin to run, plus the taxed costs of the suit.

The clear legal right of the Applicant and the corresponding duty of the Respondents to pay has therefore been established.

The law is that “a decree or order of payment made against Government becomes a statutory duty for the Government Officer concerned to perform the duty.  And that payments decided against Government have to be made by the Attorney General through the Treasury Officer of Accounts”.

It is clear from the circumstances of the present case that despite several demands for payment, the Treasury Officer of Accounts (First Respondent) has not made the necessary payment to the Applicant.  There is no appeal against the judgment of court delivered in favour of the Applicant on 20.02.17.  And the claim goes back to five (5) years.

The seemingly alternative remedy hereby suggested by Counsel for the Respondents that is, that, there is a new policy that the line Ministries and in this case the Ministry of Local Government meet the payment, is inconvenient, and totally ineffective considering what is provided for by the law.

And in any case, Counsel for the Respondent admitted that the money has not yet been released to the said Ministries, and the Applicants are being required to wait for another two months for the said release.

Court has also noted that the Applicant’s contention that the promised payment on a first come first served basis is never honored has not been disputed by the Respondents.

Therefore the proposed alternative is totally ineffective.

The Applicants have no other legal means of enforcing their right under the Certificate of Order against Government, and any continued delay in effecting the payment continues to adversely affect the Applicants.

It is therefore only fair and just that this application be allowed under S.37 (1) of the Judicature Act and the writ of mandamus issues against the Respondents to force them to effect payment to the Applicants in the sums decreed by Court.

It is so ordered.

Taxed costs of this application are also granted to the Applicants.

FLAVIA SENOGA ANGLIN

JUDGE