East Africa Boreholes Limited v Oyam District Local Government & 2 Others (Miscellaneous Cause 4 of 2018) [2023] UGHC 347 (21 February 2023)

Full Case Text

### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA **HOLDEN AT LIRA** MISC CAUSE NO.004 OF 2018 IN THE MATTER OF THE JUDICATURE ACT CAP 12 LAWS OF UGANDA AND IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW AND IN THE MATTER OF AN APPLICATION FOR PREOGATIVE ORDERS OF DECLARATION FOR CERTIORARI, PROHIBITION AND MANDAMUS BY EAST AFRICA BOREHOLES LTD EAST AFRICA BOREHOLES LTD.................................... **VERSUS** 1. OYAM DISTRICT LOCAL GOVERNMENT 2. THE CHIEF ADMINISTRATIVE OFFICER, OYAM DISTRICT LOCAL **GOVERNMENT**

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3. THE CONTRACTS COMMITTEE, OYAM DISTRICT LOCAL GOVERNMENT.............. ......................................

#### **RULING:**

#### **BEFORE: HON. JUSTICE ALEX MACKAY AJIJI**

The Applicant brought this application against the Respondents jointly and severally, under Section 36 of the Judicature Act, Cap. 13; Rules 1,3,4,5, 6, 7 & 8 of the Judicature (Judicial Review) Rules 2009 as amended Order 52 Rules 1 and 3 of Civil Procedure Rules SI 71-1; seeking various prerogative writs and other remedied as stated in the Notice of Motion for the following reliefs;

- 1. A declaration that the Respondents acted illegally, irrationally and unreasonably when they failed to consider the Applicant's request for extension of contract duration for the performance $of$ *contracts* $No.$ OYAM572/WRKS/PAF/2017/LOT00001,OYAM572/WRKS/PAF/2017/LOT00002 AND OYAM522/WRKS/DEG/2017-2018/00019. - 2. An order of certiorari issues against the respondents to quash their purported decision to terminate contracts $No.$

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OYAM572/WRKS/PAF/2017/LOT00001,OYAM572/WRKS/PAF/2017/LOT00002 AND OYAM522/WRKS/DEG/2017-2018/00019.

- 3. An order of prohibition issues against the respondents to stop them from formalizing the No contracts of termination OYAM572/WRKS/PAF/2017/LOT00001,OYAM572/WRKS/PAF/2017/LOT00002 AND OYAM522/WRKS/DEG/2017-2018/00019 to the next best evaluated bidder on the basis of invalid bids. - 4. An order of mandamus issues compelling and directing the Respondents to reconsider the Applicant's request for extension of contracts duration for the performance of contracts No.

#### OYAM572/WRKS/PAF/2017/LOT00001,OYAM572/WRKS/PAF/2017/LOT00002 AND OYAM522/WRKS/DEG/2017-2018/00019

- 5. General damages - 6. *Costs of this application be provided for.* - 7. *Interest at a rate of 25% on item e) from date of judgment till payment in full.*

The grounds of the application are set out in the affidavit in support of the application but are briefly that;

- 1. The Applicant aver that on 13th and 14th day of November, 2017 and 14th December 2017 respectively signed written contracts awarded three contracts for the construction of a total of 18 (eighteen) deep boreholes in the first Respondent's district as follows: contract No. OYAM572/WRKS/PAF/2017/LOT00001,OYAM572/WRKS/PAF/2017/LOT 00002 AND OYAM522/WRKS/DEG/2017-2018/00019 and the contracts were valued at Ug shs.198, 000,000 (Uganda shillings One Hundred Ninety Eight Million), Ug shs 130,194,120 (Uganda Shillings One Hundred Thirty Million) and 19,000,000 (Uganda shillings nineteen Million) respectively and therefore totaling to a total value of Ug. Shs 347,194,120 (Uganda shillings three hundred forty seven million one hundred ninety four thousand one hundred twenty). - 2. That the above contracts all had a time frame of three months from the date of execution and the Applicant had committed to complete the works in the said time.

- 3. That the Applicant thereafter experienced extreme technical difficulties with its major drilling equipment which suddenly broke down due to enforceable circumstances which were beyond the applicant's control and which frustrated the Applicant's efforts to complete the contracts as scheduled. - 4. That in a bid to salvage the problem, Applicant imported new spare parts from India as they were not available in Uganda, a fact that was communicated to Respondents by a letter dated 5th February 2018. - 5. That the Applicant provided an early warning in accordance with the general conditions of contracts and requested for an extension of time within which to perform the said contracts by letter dated 5th February 2018. - 6. That the first and second Respondent refused or failed to grant the Applicant a fair hearing in the terms of the early warning letter and Application for extension of time and instead by letter dated 15th February 2018, terminated the Applicant's contracts pending formalization by the 3rd Respondent. - 7. That the second Respondent's purported termination of contracts No OYAM572/WRKS/PAF/2017/LOT00001,OYAM572/WRKS/PAF/2017/LOT 00002 AND OYAM522/WRKS/DEG/2017-2018/00019 was done illegality, unfairly, unreasonably and irrationally prior to the approval of the contracts committee, a mandatory requirement of the laws and regulations governing such as the first Respondent. - 8. That the Respondents are hastily, speedily, irregularly and illegally considering awarding the contracts No. OYAM572/WRKS/PAF/2017/LOT00001,OYAM572/WRKS/PAF/2017/LOT 00002 AND OYAM522/WRKS/DEG/2017-2018/00019 to the next best evaluated contractor on the basis of laws, local government regulations and modern best public procurement practices. - 9. That it is just and equitable that this application for prerogative order of mandamus compelling the Respondent to perform its role of reinstating the Applicant is granted. - 10. That no injuries, damages and/or suffering will occasion to the Respondent by allowing this Application.

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The application is supported by the affidavit in sworn by the Applicant essentially restating and amplifying the grounds above stated. He further states The Applicant aver that on 13th and 14th day of November, 2017 and 14th December 2017 respectively signed written contracts awarded three contracts for the construction of a total of 18 (eighteen) deep boreholes in the first Respondent's district as follows: contract No. OYAM572/WRKS/PAF/2017/LOT00001, OYAM572/WRKS/PAF/2017/LOT00002 AND OYAM522/WRKS/DEG/2017-2018/00019 and the contracts were valued at Ug shs.198, 000,000 (Uganda shillings One Hundred Ninety Eight Million), Ug shs 130,194,120 (Uganda Shillings One Hundred Thirty Million) and 19,000,000 (Uganda shillings nineteen Million) respectively and therefore totaling to a total value of Ug. Shs 347,194,120 (Uganda shillings three hundred forty seven million one hundred ninety four thousand one hundred twenty).

The applicant filed the application and there is no submission on record by the Applicant and or her counsel and the Respondent never filed a reply and neither sis they file submissions to that effect, however for justice to prevail, I will deliver the ruling basing on the pleadings on record.

I will raise three $(3)$ pertinent issues to solve this

- Whether there is a fit and proper case of judicial review. - Whether the $1^{st}$ and $2^{nd}$ Respondents' actions to terminate the contract of Applicant and $\blacksquare$ awarding the same to the second s are ultra vires, irregular and illegal. - Whether the Applicants are entitled to remedies sought herein.

#### **Resolution of the issues:**

## Issue No.1: Whether there is a fit and proper case for judicial review.

Section 36 (1) of the Judicature Act Cap 13, provides for the power of the High Court to issue orders under judicial review. It provides as follows;

"(1) The High Court may make an order, as the case may be, of-

(a) mandamus, requiring any act to be done;

## (b) prohibition, prohibiting any proceedings or matter; or

# (c) certiorari, removing any proceedings or matter to the High Court."

Rule 3 (1) and (2) of the Judicature (Judicial Review) Rules SI 11 of 2009, provides that a party may apply for an order of prohibition, certiorari, declaration and injunction by way of judicial review in appropriate case. Rule 3A of the Judicature (Judicial Review) (Amendment) Rules SI *32 of 2019* provides that;

# "Any person who has a direct or sufficient interest in a matter may apply for judicial review."

The Applicant have shown on her affidavit evidence that she is person who have direct sufficient interest in the matter, and that she is aggrieved by the decisions of Oyam District Local Government, The Chief Administrative officer, Oyam District Local government and The contracts Committee, Oyam District Local Government. The particular deposition has neither been denied nor rebutted by the Respondents. The settled law is that where facts are sworn to in an affidavit and these are not denied or rebutted by the opposite party, the presumption is that they are accepted as the truth. See: *Massa vs. Achen [1978] HCB 297*. This application thus meets the criteria under *Rule 7A* (supra) as being amenable for judicial review. Issue No.1 is answered in the affirmative.

## Issue No.2: Whether the 1st and 2nd Respondents' actions to terminate the contract of Applicant and awarding the same to the second s are ultra vires, irregular and illegal.

The Applicant contends that the 1st and 2nd Respondent's actions to terminate the contract of Applicant and awarding the same to the second bidder are ultra vires, irregular and illegal. The reasons are already as stated in the affidavit in support sworn by the Mogili Vijay Reddy the managing Director of the Applicant.

In resolving this issue, the starting point is the position of the law. Black's Law Dictionary 8th Edition, defines "an illegality" as an act that is not authorized by the law or state of not being legally authorized. In Ojangole Patricia & 4 O'rs vs. Attorney General HCMC No. 303 of *2013*, court defined "illegality" to mean;

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".... when the decision making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires or contrary to the provisions of the law or its principles are instances of illegality."

Similarly, in Mrs. Geraldine Sail Busuulwa vs. National Social Security Fund & A'nor, HCMC No. 032 of 2016, this court held that acting without jurisdiction or ultra vires or contrary to the provisions of the law or its principles are instances of illegality. Also in *Thugitho Festo vs. Nebbi Municipal Council (Arua) HCMA No. 15 of 2017, the court held, inter alia, that;*

"An action or decision may be illegal on the basis that the public body has no power to take that action or decision or has acted beyond its powers."

Also, in Fuelex Uganda Ltd vs. The Attorney General & O'rs H. C. M. C. No. 48 of 2014 cited in Dr. Daniel K. N. Semambo vs. National Animal Genetic Resource Centre H. C. M. C. No. 30 of 2017; Musota J (as he then was) held, inter alia, that in order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety.

Irrationality, on the other hand, is well elucidated in the oft-quoted case of *Council of Civil Service* Union vs. Minister for Civil Service [1985] AC 374 ALL ER 935. Diplock J referred to the case with approval in his definition of irrationality when he stated that;

"By 'irrationality', I mean what can now be succinctly referred to as 'Wednsbury's unreasonableness'... It applies to a decision which is so outrageous in defiance of logic or of accepted moral standards that no sensible person who has applied his mind to the question to be decided could have arrived at it. Whether the decision falls within this category is a question judges by their training and experience should be well equipped to answer, or else there would be something wrong with our judicial system."

Evidence in the instant application shows that the Applicant aver that on 13th and 14th day of November, 2017 and 14th December 2017 respectively signed written contracts awarded three contracts for the construction of a total of 18 (eighteen) deep boreholes in the first Respondent's district as follows: contract No.

# OYAM572/WRKS/PAF/2017/LOT00001,OYAM572/WRKS/PAF/2017/LOT00002

OYAM522/WRKS/DEG/2017-2018/00019 and the contracts were valued at Ug shs.198, 000,000 (Uganda shillings One Hundred Ninety Eight Million), Ug shs 130,194,120 (Uganda Shillings One Hundred Thirty Million) and 19,000,000 (Uganda shillings nineteen Million) respectively and therefore totaling to a total value of Ug. Shs 347,194,120 (Uganda shillings three hundred forty seven million one hundred.

In the instant case, the issue of deliberations and decision and orders of Oyam District Local Government, The Chief Administrative officer, Oyam District Local government and The contracts Committee, Oyam District Local Government being ultra vires, irregular and illegal, was raised in paragraph (a) of the application and supported in paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10,11 and 12 of the affidavit in support of the application. It is shown therein that the Respondents action of cancelling the contract of the applicant and awarding the same to the second bidder after even there notice given by the applicant to the respondent that there was an error with applicant's machines which was useable by both parties at the time of the Respondents awarded the contract and even signed contracts among themselves acted illegally, unconstitutionally and *ultra vires* its powers.

However where the Applicant gave notice that their machines had gotten spoilt, should the Respondent have waited for the Applicant to repair them when the contract and the grant had

I believe it was justified for the local Government to give away the contract to the $2^{nd}$ bidder therefore all actions fail and all other orders cannot be granted as the Applicant failed to execute the contract. Hence this Application has no merit.

All parties shall bear their own costs.

Dated and delivered at Gulu this ....................................

**ALEX MACKAY AJIJI**

**JUDGE**

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