Petnum Pharmacy Limited v National Drug Authority (Miscellaneous Cause No. 56 of 2018) [2018] UGHCCD 104 (31 October 2018)

Key Facts

Issues

• The court determined whether the respondent's rejections of the applicant's pharmacy relocation requests (based on 200m and 500m distance thresholds in the 2017 and 2018 Guidelines) were lawful. The applicant claimed these restrictions were not authorized by the NDPA Act or its regulations, while the respondent argued they were justified under public interest and constitutional directives for balanced development.
• The court considered appropriate remedies for the applicant, including quashing the Guidelines, mandamus to compel licensing, and damages for business losses. The applicant sought judicial review reliefs (certiorari, prohibition, mandamus, injunction) and damages, while the respondent opposed the application on procedural grounds, which were dismissed.
• The court addressed whether the National Drug Authority Licensing Guidelines, 2017 and National Drug Authority Guidelines, 2018, formulated by the Secretariat and approved by Ms. Donna Kusemererwa, are substantively and procedurally invalid under the National Drug Policy and Authority Act (NDPA Act) and the Constitution. The applicant argued the Secretariat lacked authority to create such guidelines, while the respondent contended they were administrative acts within the Secretary's powers.

Holdings

• The court held that the National Drug Authority's 2017 and 2018 Licensing Guidelines were ultra vires because they were created by an unauthorized individual, specifically the Secretary who was not legally appointed to that position. This determination was based on the principle that the core function of making professional guidelines cannot be delegated to the Secretariat without proper authority from the Authority or the Minister.
• The respondent's decisions to reject the applicant's certificate of suitability for the pharmacy located at Mulago-Kafeero Zone, relying on the ultra vires guidelines, were found to be illegal and were quashed. The court emphasized that decisions based on invalid guidelines have no legal merit.

Remedies

• The court awarded the applicant the costs of this application, as the respondent's actions were found to be unlawful and the applicant's legal challenge was successful.
• An order of mandamus was granted to compel the respondent to issue a license to the applicant to operate a pharmacy business on the premises located at Mulago-Kafeero Zone, as the respondent's refusal was found to be unlawful.
• The court quashed the National Drug Authority Licensing Guidelines 2017 and the National Drug Authority Professional Guidelines 2018 as illegal and ultra vires, finding they were created without proper authority by the Secretariat and not by the legally mandated Authority.
• The applicant was awarded general damages of 45,000,000/= with 15% interest from the date of the ruling, due to the respondent's malicious abuse of power and failure to perform their statutory duties.

Monetary Damages

Legal Principles

• The court ruled that the Secretariat of the Drug Authority exceeded its mandate by usurping the Authority's core function of making professional guidelines. This reflects the principle that statutory powers must be exercised within the framework of separation of powers, as the Authority (not the Secretariat) was legally empowered to create such guidelines.
• The court emphasized interpreting the National Drug Policy and Authority Act in light of constitutional objectives, particularly the public interest in health policy and equitable development. This aligns with the purposive approach to statutory interpretation, which considers broader legislative intent and constitutional principles.
• The court held that the National Drug Authority's 2017 and 2018 guidelines were ultra vires because they were formulated by the Secretariat without legislative authority. This applies the principle that decisions made without proper statutory power are invalid and have no legal effect, as established in cases like Bodddington v British Transport Police.

Precedent Name

• Bodddington -v- British Transport Police
• Mukisa Biscuit Company – vs- Westend Distributors Limited
• Hotel and Catering Industry Training Board -v- Auto Mobile Proprietary Limited
• Horizon Coaches Limited -v- Mbarara Municipal Council & Anor
• Edith Nantumbwe Kizito -v- Miriam Kutesa
• Makula International Limited vs His Eminence Cardinal Nsubuga & Anor
• Hon Anifa Kawooya vs AG & NCHE
• Kasule v Attorney General
• Three Rivers District Council v Governors of Bank of England

Cited Statute

• Constitution of Uganda
• National Drug Policy and Authority Act
• Interpretation Act, Cap 3
• Judicature (Judicial Review) Rules, 2009
• Judicature Act

Judge Name

Passage Text

• 6. A declaration that the whole of paragraph 4.0 of the impugned guidelines... is illegal, irregular and ultra vires and has no legal basis.
• The guidelines of 2017 and 2018 where ultra vires since they were made by a person without authority.
• The said decisions are devoid of any merit and are accordingly quashed.