THE REPUBLIC OF UGANDA
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
IN THE MATTER OF AN APPLICATION FOR A WRIT OF
CERTIORARI, MANDAMUS AND INJUNCTION
MISCELLANEOUS CAUSE NO.047 OF 2017
CO-OPERATIVE SOCIETY :::::::::::::::::::::::::::::::::::::: APPLICANT
- JINJA MUNICIPAL COUNCIL
- BYABAGAMBI FRANCIS
- LUVUNIA MAJJA
- TALIGOOLA JOHN
- BALININGA HENRY:::::::::::::::::::::::::::::::::::::RESPONDENTS
BEFORE HONOURABLE JUSTICE EVA LUSWATA.Brief Background and facts
The applicant proceeded by notice of motion under the Constitution, The Judicature Act, Judicature (Judicial Review) Rules, Civil Procedure Act and Rules to seek the following orders:
- An order of certiorari to quash the decision of the Administrative Review Committee with respect to Bids for revenue collection from trailer parking procurement taken on 8/8/27 to rescind/ cancel the applicant’s contract
- An injunction order preventing the respondents from cancelling the applicant’s contract
- An order of mandamus compelling the respondents to re-instate the applicant’s contract
- A declaration that he decisions of the respondent were illegal, irrational and improper
- A declaration that the failure of the respondents to hear the applicant in its petition/ appeal was illegal, irrational and improper
- A declaration that the respondent’s decision to award the contract to Basiima Consultants Ltd was improper and illegal
- An order of an injunction restraining the 1st respondent from implementing the impugned decisions
- General damages for the illegal implementation of the contract
- Costs of the application
The grounds relied on are briefly that the applicant a duly registered co-operative society, entered into a contract with the 1st respondent with approval of the 2nd respondent for the collection of revenue for lorries in Walukuba Masese, to end on 31/10/2017. That during May 2017, through the New Vision Newspaper, the 1st respondent advertised the same contract before its expiry date, which was breach of contract. Even then, the applicant re-applied for the contract and was declared the best bidder by the 1st and 2nd respondents. Instead, that the 3rd , 4th and 5th respondents through their Evaluation Committee later published Basiima Consultants Ltd (hereinafter referred to as Basiima) as the best bidder. The applicant lodged a formal complaint against that decision but was not accorded a fair hearing before their award was altered or changed.
Kampani Farouk a director of the applicant affirmed an affidavit in support of the application that gave an elaboration of the above grounds. In particular, he stated that after being declared winner of the evaluated bid, the applicant was pinned on the notice board. That on 26/7/17 applicant’s lawyers M/s Kiiza & Co., Advocates, communicated their complaint against the decision to alter and substitute them for Basiima and not being accorded a fair hearing to communicate the reasons for making the alteration.
Kampani continued that the applicant fulfilled the minimum requirements for the award in accordance with the Guidelines issued in 2017 by the Minister of Trade to govern all centers in Municipalities (hereinafter referred to as the Guidelines). That the 3rd-5th respondents did not follow the guidelines and did not accord the applicant a hearing before their successive bid was rejected then altered in favour of Basiima which is not a co-operative society. He deemed that decision, illegal, improper, irregular and discriminatory and in total disregard of trade guidelines made in February and September 2017 with respect to co-operative societies.
Waidhuuba Jofram, being the deputy Town Clerk of the 1st respondent deposed an affidavit in reply to the application. He conceded to the given facts of the existence and duration of the contract between the 1st respondent and applicant, but contested the decision to sue Byabagambi Francis in his personal capacity. He explained that the advert made in May 2017, was actually commencement of the procurement process for the next contract period of 2017-2018, and was conducted in accordance with the relevant procurement laws. That the advert did not interrupt or terminate the applicant’s running contract. That five firms/companies respondent to the advert and Basiima who emerged as the best evaluated bidder, was recommended for an award of the contract for the period 2017-2018, effective 1/11/2017
Waiduumba continued that the applicant lodged their complaint against the bidding process by an application for judicial review. That as a result, the Town Clerk suspended the procurement process and constituted a Review Committee comprising of the 3rd, 4th and 5th respondents, to investigate the complaint and file a report. That upon expiration of the contract, the applicant handed over the revenue center and Basiima as the new contractors immediately commenced their work on 1/11/2017.
Luvunia Majja, the 3rd respondent also deposed an affidavit in response to the application. He stated the request for judicial review by the applicant was an allegation that the bidding process was flawed with some bidding documents being removed. That he was part of and chaired the Review Committee appointed by Byabagambi with instructions to investigate the complaint and file a report. As part of their investigations, the Committee summoned the applicant to verify their side of the complaint but they ignored those summons declined. That independent investigations were carried out after which the Committee found no merit in the applicant’s complaint. The Committee reported to the 1st respondent as much. That the 1st respondent then proceeded to award the tender to Basiima for the period 1/11/2017 to 31/10/2018 and it is the latter who by 11/11/2018 were in effective management of the revenue centre. He in addition attacked the decision of the applicant to sue him and the 4th and 5th respondents because they executed their duties in official capacity.
M/s Kiiza & Co., Advocates filed the application on behalf of the applicants and M/s Muzilansa Associated Advocates opposed it. Both counsel filed written submissions with useful authorities, the content which will not be reproduced here but none the less, will be considered in my decision.
Three issues were raised for determination;
- Whether the respondents’ decision and actions can be challenged in a Court of law by judicial review?
- Whether or not the respondents acted illegally, irrationally and with procedural impropriety, in arriving at the decision in rescinding/cancelling the applicant’s contract?
- Whether the applicant is entitled to the reliefs sought?
The law governing the remedy of judicial remedy was well stated by applicant’s counsel. It is the process by which the High Court exercises it supervisory jurisdiction over the proceedings and decisions of inferior courts, tribunals and other bodies or, persons who carry out quasi-judicial functions, or who are engaged in the performance of public acts and duties ordinarily judicial review can only be a recourse where there is no other available remedy open to the aggrieved party. However, emerging jurisprudence appears to emphasize that since the remedy is discretionary, the High Court can grant the relief, where the alternative remedy is less convenient and effective. See for example Yasin S. Munagomba & Anor and Simon Semuwemba Miscellaneous Cause No. 22/2016 (Jinja) following R. Vrs. Huntington District Council, exparte Cowan & Anor (1984) ALL ER. Judicial review concerns itself not with the decision per se but with the decision making process. Essentially, the Court is required to investigate and assess the manner in which a decision of a named body was made. See for example UTODA Vrs. KCCA & Another HCMA No.137/2011.
Judicial Review is not an appeal and the jurisdiction is exercised in a supervisory manner, not to vindicate rights as such, but to ensure that public powers are exercised in accordance with basic standards of legality, fairness and rationality. See Philadelphia Trade & Industry Limited Vs KCCA HC Civil Revision No. 15/2012 in which Nazarali Punjwani Vs Kampala District Land Board & Anor HCCS No. 07/2005 was followed. Being a prerogative order, it is always discretionary in nature and since it is meant to check exercise and abuse of power by those who hold public office, it cannot be used to provide final determination of private rights, which is done in ordinary civil suits. See for example R. Vrs. East Berkshine Health Authority exparte Walsh (1985) QB 554.
I understand the complaint of the applicant to be that the respondents acted illegally, irrationally and unfairly when they made the decision to rescind or cancel the agreement between them and the 1st respondent. In his affidavit, Kampani referred to the contract attached to his affidavit which was to run until 30/10/2017. He contended that by advertising the same contract in the New Vision Newspaper of 15/5/2017, the 1st and 2nd respondents who were aware of the subsisting contract were in breach thereof. A prayer was sought in the motion to quash the decision of the Review Committee taken on 8/8/17 which had the effect of rescinding/cancelling the contract. Their counsel argued in his submissions that that action was amenable for judicial review.
Respondent’s counsel disagreed. He argued that the remedy was not available in the circumstances of this case. That the applicant who had signed a contract with the 1st respondent if aggrieved, ought to have considered using the remedy of arbitration which was provided for in the contract. He continued that breach of contract as pleaded by the applicants is a private and not public law right, and is thus enforceable by way of ordinary suit and not judicial review. I do agree with those arguments and the following are my reasons.
The relevant parts of the contract were attached to Waidhuuba’s affidavit as “Annexure A”. There being a definite contractual relationship between the two parties, it would be wrong for the applicant to assume that their rights could be enforced in the realm as a public law right. Although the 1st respondent is a public body created by statute, there was no public dimension to justify seeking recourse for relief by way of judicial review. It was the decision of Justice Mubiru in Arua Kubala Park Operators & Market Vendors’ Co-Operative Society Ltd Vs. Arua Municipal Council Misc. Cause No. 003/2016 that “where a transaction is unrelated to the public interest, an aggrieved party has remedy in private law”. I would add that this is not a matter for which I would exercise my discretion to entertain the complaint under judicial review.
Again, it was provided in clause GCC 17.2 of the agreement that dispute settlement (between the parties thereto) is by recourse to the Arbitration Law of Uganda. That clause appeared to be a condition, and therefore mandatory. Respondent’s counsel would thus be correct to submit that the applicant has an alternative remedy for the pleaded grievance. The decision by Justice Mubiru in Arua Kubala Park Operators & Market Vendors’ Co-Operative Society Ltd Vs. Arua Municipal Council (supra) is instructive, he advised that:
“Where a relationship is regulated by the law of contract, administrative law remedies should generally not be available. It is important that the parties are held to their contractual obligations through ordinary suits and not by invoking public law remedies.”
In resolving the first issue, I therefore hold that the respondent’s decision and actions cannot be challenged by way of judicial review
It was submitted for the applicant that they were awarded the tender vide Minute CC/041/2016 of the 1st respondent’s Contracts Committee. Further that, their appointment was declared by the 1st and 2nd respondents and then communicated in the 1st respondent’s Letter of Bid Acceptance dated 3/10/2016. Making reference to the minutes of the Review Committee (Annexure E), counsel argued that the investigation was carried out through the 1st respondent’s internal organs to which his client was excluded. He argued then that declaring and publishing Basiima as the best bidder by the 3rd -5th respondent was illegal. Counsel argued further that altering the contract when the applicants fulfilled the minimum requirements and without giving them a fair hearing was both unconstitutional and irrational. That after declaring and advertising the applicant as the winner of the bid, it was irrational to cancel or rescind the contract
After reading both the motion, the evidence and counsel’s submissions, I sense a serious confusion of what appears to be two separate contracts. I agree with respondent’s counsel that the first contract was under Procurement Reference No. JMC755/5rvcs/16-17/00020 which commenced on 1/11/2016 and was slotted to end on 31/10/2017. Kampani admitted as much in paragraphs 2 and 3 of his affidavit and even stated that the applicant accepted it and began operations by collecting revenue as agreed. No specifics were given by the applicant of any other contract save that Kampani stated in paragraph 7 that the Evaluation Committee later published Basiima as the best evaluated bidder, which they contested. There was mention (in Annexure “G”) of what I believe was the bid pursuant to another contract for the same services. It is the report of the Review Committee on the evaluation of “..bids for revenue collection from trailer Parking Procurement Ref. JMC755/SRVCS/17-18/0001”. It was stated in the report that the bid was opened on 2/6/17 and attracted five bidders. This would be during the subsistence of the former contract between the applicant and 1st respondent.
I agree with respondent’s counsel that it was a misconception on the part of the applicant that the commencement of the procurement process of the latter bid (at a time when the former bid was still running), amounted to a breach and/or cancellation of the contract. Nothing was shown by the applicant that that particular agreement was formerly rescinded and according to the respondents, the applicant was allowed to operate to its full term until 31/10/2017 when the applicants handed over the revenue office. In fact, by buying the tender document for the latter contract, the applicant was aware their contract was still subsisting, but they wished to have it renewed by re-applying to operate it, for the succeeding financial year. It would thus follow that the impugned procurement process was clearly meant for the procurement of management services for the period 1/11/2017 to 31/10/2018. The communication of the 2nd respondent (dated 31/7/2017) to counsel Kiiza’s complaint was clear, and I quote:
“I acknowledge that the contract of your client is due to expire on 31st October, 2017 and indeed the contract will run normally, unhindered until it expires.
The current bidding process was conducted in accordance with the Procurement and Disposal of Assets Act and Regulations currently in force and the new contract with the best evaluated bidder will commence on expiry of the current contract.”
I also do not agree as stated by applicant’s counsel that, by placing an advert in the media when the former contract was existing, amounted to breach of contract. The latter contract was slotted to begin on 1/11/2017, it would be reasonable, and in fact procedurally correct for the 1st respondent to begin the procurement process early enough so that the contract which involved a public service is afforded continuity. In fact, going by the advert, several revenue centers were mentioned which would imply it was not only the applicant targeted.
It was stated but not shown that the applicant was the best bidder for the latter contract. In paragraphs 5 to 8 of his affidavit, Kampani claims that the applicant was declared the best evaluated bidder and pinned on the 1st and 2nd respondent’s notice board. That instead, the respondent altered their first decision and then substituted it with Basiima. That they were not heard before and after that decision was made. No evidence was adduced to support those allegations and I notice that the fact of alteration was never raised when Kiiza & Co., Advocates, the applicant’s lawyers lodged a formal complaint with the 1st and 2nd respondents on 26/7/2017. The gist of the complaint then was that an advert was made during the subsistence of the existing contract and that the bidding process was flawed because some of the applicant’s bidding documents were fraudulently removed by the procurement staff, which resulted into Basiima being evaluated as the best bidder.
The above notwithstanding I agree with respondent’s counsel that nothing was adduced to show that the process of the latter bid was flawed. It is not contested that the applicant fully participated in the bid, the results of which were communicated to them. I note that their complaint that the process was flawed, was attended to by the response made in the 1st respondent’s letter dated 31/7/2017. The 2nd respondent, as Town Clerk, in addition suspended the procurement process and appointed what was termed a Review Committee comprising the 3rd, 4th and 5th respondents whose terms of reference were to investigate the complaint and file a report of their findings. This would amount to a hearing.
The Committee claimed to have invited the applicant’s representatives for a hearing but the latter giving reasons declined. That statement was never rebutted. The Committee carried out the task and issued a report which was attached to the pleadings of both sides. The issue of some unidentified documents being removed by the procurement team, was a subject of the investigation and resolved. I agree with the respondent that the report would amount to a summation of the investigation and findings of the Committee with regard to the complaint, and the applicant was given a chance to be heard which they rejected. I repeat that the bid process was an attempt to fulfil the requirements of the Procurement and Disposal of Public Assets Act and Regulations, and did not in way represent an action deemed to rescind or in any other way, end the former contract.
It was argued for the respondents that save for the 1st respondents, the other respondents were wrongly sued because they were acting in their official capacities. That is the correct position. The 2nd respondent was at the relevant time the 1st respondent’s Town Clerk and all his communications were authored in that capacity. Nothing was shown that he acted wantonly, overstepped or acted ultra vires his powers. The 3rd, 4th and 5th respondents were likewise acting in an official capacity. In his communication to them jointly of 4/8/2017, the 2nd respondent indicated that following the applicant’s complaint, the procurement process for the latter contract had been suspended pending investigations. He then appointed those three persons to constitute a Committee to conduct an administrative review under chairmanship of Mr. Luvunia in line with the relevant law. The committee did execute their mandate and issued a report dated 8/8/2017, the contents of which were communicated to the applicant. It was accordingly wrong to have sued the 2nd to 5th respondents in their personal capacity because they acted as agents of the 1st respondent
I would accordingly resolve the second issue in the negative.
Issue 3: Remedies
I did find in the first instance that the applicant applied the wrong remedy of judicial review. That by itself would have resolved this application summarily. They would not be entitled to any remedy and would have recourse to an ordinary suit. None the less, I did proceed to investigate whether there had in fact been breach of the contract between the applicant and 1st respondent. This too was resolved in the negative. It was my finding that the contract run to its logical conclusion without interruption. It is correct for respondent’s counsel to submit that under those circumstances, the order of an injunction to prevent the respondent from cancellation of the contract, and that of mandamus compelling the respondents to reinstate the contract are now mute, having been overtaken by events.
I also decline to issue the remedy of certiorari to quash the decision of the Review Committee that cancelled or rescinded the applicant’s contract. It is my decision that no valid contract between the applicant and 1st respondent was rescinded, cancelled or breached. The Review committee investigated a complaint against the process of the latter but not former bid. Having done so, they found no merit in the complaint and recommended that the 1st respondent by her agent the 2nd respondent proceeds to award the contract to Basiima as the best evaluated bidder. That decision had no impact on the former contract and certainly did not cancel or rescind it.
In summary I find no merit in all the issues raised for determination. The application is accordingly dismissed with costs to the respondents.
I so order
Eva K. Luswata