Helmsman Quality and Technology Services Company Limited (HQTS) v Attorney and Another (Misc Cause 224 of 2023) [2024] UGHCCD 153 (19 September 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION) MISCELLANEOUS CAUSE NO. 224 OF 2023**

# **HELMSMAN QUALITY & TECHNOLOGY**

**SERVICES CO. LTD [HQTS] :::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

# **VERSUS**

# **1. THE ATTORNEY GENERAL**

**2. UGANDA NATIONAL BUREAU OF STANDARDS [UNBS] :::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS**

# **BEFORE: HON. JUSTICE BONIFACE WAMALA**

#### **RULING**

#### **Introduction**

[1] This application was brought by Notice of Motion under Article 42 of the Constitution, Sections 33, 36 and 39 of the Judicature Act, Section 98 of the CPA, and Rules 1A, 3, 3A, 4, 5, 6, 7, 7A, 7B and 8 of the Judicature (Judicial Review) Rules 2009 as amended by S. I No. 32 of 2019, and Order 52 rules 1 and 3 of the CPR, seeking orders and declarations that;

- a) A writ of Certiorari doth issue quashing the findings, observations and recommendations contained in item 4.1 on pages 5-9 of the Parliamentary Sectoral Committee on Tourism, Trade and Industry Report on the due diligence oversight visits on the pre- export verification for conformity (PVoC) service providers in Dubai and India. - b) A writ of Certiorari doth issue quashing the general observations contained in items 5(1) & 5(2) on pages 21-22 and recommendations contained in item 6(1) on page 24 of the Parliamentary Sectoral Committee on Tourism, Trade and Industry Report on the due diligence oversight visits on PVoC service providers in Dubai and India.

- c) An order Prohibition and/or injunction doth issue against the respondents and or other entity /organ of government from reliance upon and /or implementation of the findings, observations and recommendations on item 4.1 at pages 5-9, items 5(1) & 5(2) at pages 21-22 and item 6(1) at page 24 of the impugned report on due diligence oversight visits on the pre-export verification for conformity service providers in Dubai and India. - d) A declaration that the Parliamentary Sectoral Committee on Tourism, Trade and Industry acted ultravires, illegally, and in a biased manner in its proceedings and in making its findings, observations and recommendations contained in item 4.1 at pages 5-9, items 5(1) & 5(2) at pages 21-22 and item 6(1) at page 24 of the impugned report on due diligence oversight visits on the pre-export verification for conformity service providers in Dubai and India against the applicant without properly gathering and evaluating evidence and applying the principles of natural justice. - e) An order of an injunction restraining the respondents, Parliament of Uganda or other entity from debating, reference to and/ or reliance upon the findings, observations and recommendations contained in the impugned report. - f) An order doth issue expunging the impugned findings, observations and recommendations in the impugned Sectoral Committee Report wholly or in part from public records of Uganda. - g) An order for the award of costs to the applicant.

[2] The grounds upon which the application is based are summarized in the Notice of Motion and also set out in the affidavit in support of the application deposed by **Mr. Osotto Denis**, an appointed lawyer and legal advisor to the applicant in Uganda. Briefly, the grounds are that the applicant is a duly incorporated entity in China operating globally, largely engaged and accredited in services of pre-export verification for conformity to standards of imported goods. The deponent stated that the applicant participated as an international company in the bidding process for provision of pre-export verification of conformity services in Uganda that was undertaken by the 2nd respondent. The applicant emerged amongst the six (6) best evaluated bidders whereupon it signed a contract with the 2nd respondent for provision of Pre-export verification of conformity services mainly in China, Dubai (UAE) and India. Shortly thereafter, the applicant received a notification that the Parliamentary Sectoral Committee on Tourism, Trade and Industry was due to undertake due diligence oversight visits for service providers in Dubai and India. The Committee, indeed, visited the applicant's laboratories and offices in Dubai and India.

[3] The deponent further averred that following the visits, media reports started circulating that the applicant's offices were either non-existent or sub-standard and that the staff were unqualified. The sectoral committee thereafter submitted an undated report to the office of the Clerk to Parliament on 3rd October 2023 with outrageous, biased, ultravires and illegal findings, observations and recommendations against the applicant including termination of the applicant's contract, investigations by the DPP and PPDA of the contract award process. The deponent also averred that the impugned report made sweeping and alarming allegations against the applicant depicting it as incompetent and a brief case entity which should not have passed any stage of the evaluation process. He concluded that the said report was illegal, improper, ultravires, irrational and its findings and recommendations were arrived at with procedural impropriety.

[4] The 1st respondent opposed the application through an affidavit in reply deposed by **Ms. Nadunga Esther**, a designated Clerk Assistant to the Sectoral Committee on Tourism, Trade and Industry. She stated that the sectoral committee conducted due diligence visits of the pre-export verification service providers in Dubai and India from 23rd to 29th February 2023 with the objectives of ascertaining physical presence and location in the company's country of accreditation; assessing the capacity of the companies and proposing recommendations on protection of trade, industry, consumers and users of the product. She stated that the committee held meetings at the offices of the service providers including the applicant which were attended by the project manager and one other member of staff in the case of the applicant. She stated that the committee also visited laboratories to ascertain physical addresses and presence of service providers. On 23rd March 2023, the committee visited the applicant's offices in Dubai located at Preaton Tower and held a meeting with Cherry Huang and another official who represented the applicant and also presented several accreditation documents. It was observed by the committee that the applicant was still very new in Dubai, their operations had not yet picked up and the offices seemed to have been contracted/ rented for purposes of that particular meeting. The committee also found out that the applicant did not own the laboratories in Dubai and had contracted the Emirates laboratory to offer testing and inspection services on its behalf. Upon visiting the Emirates laboratory, it was noticed that the technical team of the applicant was not familiar with the location of the laboratory and kept calling for directions and were not known at the laboratory as they were denied entry into the premises until after some discussions.

[5] The deponent stated that the delegation that went to India observed that the staff inspectors had no specialized qualifications in the particular disciplines and were performing inspections in at least four disciplines which was not practical given the specialization and expertise required in the quality assurance programme of PVoC. The committee also found that infrastructural presence of the applicant, in terms of office and the laboratory, was questionable. The deponent averred that upon return from the due diligence visits, the sectoral committee interfaced with the Executive Director and technical staff of the 2nd Respondent to discuss their findings. On 4th October 2023, as mandated by the rules of procedure of Parliament, the sectoral committee laid on table its report of the oversight visits on the PVoC service providers in Dubai and India before the whole house and it is pending debate and adoption by Parliament.

[6] The 2nd respondent also opposed the application through an affidavit in reply deposed by **Ms. Margret Tushemereirwe**, a Senior Legal Officer of the 2nd respondent and the Secretary to the Contracts Committee. She averred that the application does not disclose a cause of action against the 2nd respondent, and is frivolous and premature. She further stated that the orders sought by the applicant are unnecessary since 2nd respondent has not received any Report or recommendations from Parliament to terminate the applicant's contract. She concluded that the application is incompetent in as far as it relates to the 2nd respondent and it should be dismissed with costs.

[7] The applicant filed affidavits in rejoinder to the respective affidavits in reply whose contents I have also taken into consideration.

#### **Representation and Hearing**

[8] At the hearing, the applicant was represented by **Mr. Odere Anthony** from M/s DeMott Law Advocates & Solicitors while the 1st respondent was represented by **Ms. Harriet Nalukenge**, a Senior State Attorney from the Chambers of the Attorney General and the 2nd respondent was represented by **Mr. Kakuru Luke** from the Legal Department of the 2nd Respondent. It was agreed that the hearing proceeds by way of written submissions which were duly filed and have been taken into consideration in the determination of the matter before Court.

### **Issues for Determination by the Court**

- [9] Three issues were agreed upon for determination by the Court, namely; - *a) Whether the application discloses a cause of action against the 2nd Respondent?* - *b) Whether the application raises any grounds for judicial review?* - *c) What remedies are available to the parties?*

#### **Resolution of the Issues**

*Issue 1: Whether the application discloses a cause of action against the 2nd Respondent?*

#### **Submissions by Counsel for the 2nd Respondent**

[10] Counsel for the 2nd respondent submitted that the application did not disclose a cause of action against the 2nd respondent and is thus frivolous, vexatious and an abuse of the court process. Counsel referred to the decisions in *Auto Garage & Another v Motokov (No. 3) (1971) EA 514* and *Tororo Cement Co. Ltd v Frokina International Ltd SCCA No. 02 of 2001* for the elements of a cause of action to be disclosed in a pleading. Counsel submitted that whereas the applicant had indicated that it had rights under the contract signed with the 2nd respondent, and rights to be heard by the Parliamentary Sectoral Committee in issue herein, which rights were allegedly violated, it was admitted by the applicant that the 2nd respondent was not responsible for the said violations. Counsel submitted that the claim by the applicant that the 2nd respondent was sued as a necessary party to the case is untenable and grossly misconceived. Counsel submitted that the court has inherent powers to make any orders in rem against any party without such parties being added to the suit. Counsel prayed for dismissal of the application as against the 2nd respondent, with costs. ## **Submissions by Counsel for the Applicant**

[11] Counsel for the applicant submitted that whereas it is true that the applicant does not fault the 2nd respondent for any wrong doing as regards the impugned report, context on the applicant's suit against the 2nd respondent can be found in the prayers/orders sought from court. Counsel submitted that the report required the 2nd respondent to undertake certain actions such as termination of the applicant's contract; for which reason the applicant seeks orders of prohibition and injunction against the 2nd respondent, among others. Counsel therefore submitted that it is the applicant's assertion, first, that there are consequential orders that are likely to be issued against the 2nd respondent, which consequential orders can better be dealt with, with the 2nd respondent as a party as opposed to filing another suit for implementation of the consequential orders following the determination. Secondly, Counsel submitted that the 2nd respondent was added to the application a necessary party for purposes of determination with finality of the dispute arising from the impugned report. Counsel relied on the provision under Order 1 rule 3 of the CPR and prayed to the Court to find that the 2nd respondent is a proper party to the application.

## **Determination by the Court**

[12] A cause of action is disclosed when it is shown that the plaintiff enjoyed a right, that the right was violated resulting to injury or damage and that the defendant is liable. See: *Auto Garage v Motokov (1971) EA 514* and *Tororo Cement Co. Ltd v Frokina International SCCA No. 2 of 2001*. It is also the established position of the law that in order to determine whether a plaint or any pleading discloses a cause of action, the court has to look at the plaint or the particular pleading only together with the annexures and nowhere else. See: *Kapeeka Coffee Works Ltd v NPART, CACA No. 3 of 2000*.

[13] On the matter before me, the applicant's cause of action is premised on judicial review of findings and recommendations in a report by a committee of Parliament. Without venturing into the aspect of the amenability for judicial review of the impugned report at this juncture, it is to be assumed that the applicant had a right to be treated fairly and justly by a public body; it is alleged in the pleadings that the said right was breached and that the 1st respondent is liable for the violation. It is further shown by the applicant that by virtue of some of the impugned recommendations, the 2nd respondent would be expected to take some actions that would be injurious to the applicant. As such, the applicant expects that some of the orders likely to be issued by the Court would be directed to the 2nd respondent and such was the reason the 2nd respondent was added as a party to the suit. Counsel for the 2nd respondent was not persuaded by this reasoning by the applicant's counsel and contested the same.

[14] Order 1 rule 3 of the CPR makes provision for who may be joined as defendants (respondents) to a suit. It provides that all "persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against those persons, any common question of law or fact would arise". In this case, the applicant has clearly shown that they claim a right to relief against the 2nd respondent, whether jointly or severally with the 1st respondent, arising out of the same act or transaction. I also agree that if the applicant was to bring a separate action against the 2nd respondent at any point in time, common questions of law or fact would arise as those in a suit brought only against the 1st respondent. For instance, if the applicant were to succeed on their claim in this application, and the 2nd respondent was to be restrained from implementing the impugned recommendations, such an order could only be based on a successful impeachment of the report in issue.

[15] In the circumstances, I find that the 2nd respondent was properly joined as a party to this application; irrespective of whether or not the applicant directly has a cause of action against them. The provision under Order 1 rule 3 of the CPR cited above permit an applicant to bring such an action against a defendant/ respondent. The suit was therefore properly brought against the 2nd respondent.

## *Issue 2: Whether the application raises any grounds for judicial review?*

[16] In an application for judicial review, the court is primarily enjoined to establish the amenability of the application for judicial review. Although no issue was raised herein in this regard, and indeed, counsel for the applicant made no submission over this aspect; counsel for respondent in their submissions contested the amenability of the application for judicial review. Whatever the case, the Court is obliged to satisfy itself on the matter, pursuant to Rule 7A of the Judicature (Judicial Review) (Amendment) Rules No. 32 of 2019. The rule provides as follows;

"*7A. Factors to consider in handling applications for judicial review.*

- *(1) The court shall, in considering an application for judicial review, satisfy itself of the following –* - *(a) That the application is amenable for judicial review;* - *(b) That the aggrieved person has exhausted the existing remedies available within the public body or under the law; and* - *(c) That the matter involves an administrative public body or official".*

[17] In law, for a matter to be amenable for judicial review, it must involve a public body in a public law matter. The court must, therefore, be satisfied; first, that the body under challenge must be a public body whose activities can be controlled by judicial review; and secondly, the subject matter of the challenge must involve claims based on public law principles and not the enforcement of private law rights. See: Ssekaana Musa, Public Law in East Africa, P. 37 (2009), Law Africa Publishing, Nairobi. It is, therefore, a requirement that the right sought to be protected is not of a personal or individual nature but a public one enjoyed by the public at large. In that regard, the duty of the Applicant in application such as this is to satisfy the court on a balance of probabilities that the decision making body or officers subject of the challenge did not follow due process in making the respective decisions or acts and that, as a result, there was unfair and unjust treatment of the applicant and which is likely to have an effect on other members of the public.

[18] It follows, therefore, that for the court's supervisory power of judicial review to be invoked, there must be in existence a decision or an act done by the public body or official. In the present case, the question to be investigated is whether the observations and recommendations contained in the impugned report amounted to a decision of Parliament that is capable of being subjected to judicial review. According to the evidence on record, the impugned report was tabled before Parliament but had not yet been debated by the House. As such, its content including the observations and recommendations made by the sectoral committee have not been adopted by the House and no parliamentary resolutions have arisen therefrom.

[19] I have before expressed an opinion over circumstances under which reports bearing recommendations may be subjected to judicial review and when not. In *Master Links Uganda Limited v Attorney General HC MC No. 167 of 2022* and *Mohamed Allibhai v Attorney General, HCMC No. 217 of 2021*, I found the recommendations in the reports judicially reviewable because the reports had been debated and adopted by Parliament and resolutions made therefrom. The resolutions were thus executable and enforceable. In *Pastor Daniel Walugembe v Sandra Ndyomugenyi & Another, HCMC No. 181 of 2023*, I found that some recommendations in the report were liable to judicial review because they were, in essence, directives that had been disguised as recommendations and were executable and enforceable. In fact, some of them had been enforced to the detriment of the applicant. In effect, the position of the law is that where a report made by a public body that is subject to the court's powers of judicial review contains recommendations that are fully adopted and capable of being executed or enforced, such a report would generally be liable to be subjected to the court's supervisory powers under judicial review.

[20] On the case before me, the impugned report does not fall in the above stated category. Without adoption of the report by Parliament and in absence of any parliamentary resolution, the observations and recommendations contained in the report of the sectoral committee herein in issue do not amount to any decision that is capable of being judicially reviewed. This application was, therefore, prematurely brought, is not amenable for judicial review and is thus incompetent. It is thus incapable of raising any grounds for judicial review. Upon those premises, the application is accordingly dismissed with costs to the respondents.

It is so ordered.

*Dated, signed and delivered by email this 19th day of September, 2024.*

**Boniface Wamala JUDGE**