GULU UNIVERSITY

NAME: OCHAN JOHN BOSCO

REG No: 18/U/3140/GBL/PS

COURSE UNIT: ADMINISTRATIVE AUTHORITIES

LECTURER: Ms. ATIM GRACE

Question.

Odongo is the Chief Administrative Officer of Kitgum district who’s charged with the mandate
among other duties. Mr. Odongo also sits on the Kitgum district tender award board which vests
and awards tenders to individuals and company. In determining the award of the tender, the
board must seek the required favour to make the decision. In a recent tendering process, Mr.
Odongo felt the board was a waste of time and started awarding tenders on his own without
constituting a required board in order to “save time”. The other members of the board wish to
challenge the decision. Advise them.
Brief facts

Mr. Odongo, the Chief Administrative Officer of Kitgum district who also sits on the tendering
award board awarded tenders on his own without constituting a required board.

Issues

Whether there is a judicial review on Mr. Odongo’s decision when he awarded tenders on his
own without constituting the required board members.

Whether there’s any available remedies for the other members of the board.

Laws Applicable

1995 Constitution of Uganda

Local Government Act Cap 243

Public Service Commission Regulations 2009

Judicature Rules 2009

Resolution

According to black laws dictionary, judicial review is the proceedings in which a court is asked
to rule on a decision of an administrative body or quasi-judicial tribunal. The judicial review
doctrine does not necessarily concern itself with reviewing the merits of the decision made that
resulted in application for judicial review, but rather the decision making process itself.1

At common law, the end result of fair treatment was all that was needed from administrative
bodies as was seen where; Lord Hailsham in the case of Chief Constable of North Wales Police
v Evans2 stated that, “The purpose of judicial review is to ensure that the individual receives fair
treatment not to ensure that the authority after affording fair treatment reaches on a matter
which it is authorized” this meant no primal respect for procedures to be followed in the decision
making process. In Uganda, the primary principle of fair treatment is echoed as was seen in the
decision of Justice Kasule in the case of Owor Arthur and 8 others v Gulu University 3 as he
1
Halsbury’s Laws of England, 4th Edition 2001 Reissue Administrative law Para 58 Vol 1 (1)
2
[1982] 3 All ER 141
3
High Court Misc. Cause No 18 of 2007
explained, “The overriding principle of judicial review is to ensure that the individual or
individuals concerned receive fair treatment.”4 In the case above, the fair or unfair treatment can
only be felt by the bodies seeking tender so this reason of complaint is not available to the
members of the board.

The jurisdiction to handle aspects of judicial review is in High Court as seen in the Judicature
Act5. No other body can do so. This was echoed by the High court judge Andrew Bashaija upon
his decision on 6th March 2020 clearly quoted, “No constitutional power resides in Parliament
or its committees to call for review and scrutiny of the decision of courts of law. Patrick
Kasumba of Bujenji County stated legally, Parliament cannot review decisions of court.” 6
In the scenario we are faced with involving Mr Odong, the other members of the board are
advised to apply to High Court for judicial review on the decision of Mr Odong.

The aspect of Ultra vires as an option to exploit is a ground for judicial review. Ultra vires means
acting beyond the powers. This is a common law position as was seen where, Justice Blackburn
in the case of Ashbury Railway Carriage & Iron Co. Ltd v Riche 7 clearly stated, “An ultra vires
act is void in its inception because the company had not the capacity to make it.” This is similar
to Uganda’s law as was said by Justice Yorokamu Bamwine descending judgement in the case of
Motor centre East Africa Ltd v Public Procurement & Disposal of Assets Authority 8, while
stating that, “Ultra vires means beyond the scope, in excess of legal power.” In relations to the
scenario given above, Mr Odongo’s actions of awarding tenders without the required number of
members of the board clearly is an illustration of Ultra vires. 9 However, Ultra vires is also
categorized into Substantive and Procedural ultra vires as follows;

4
Article 28 of the 1995 Constitution of Uganda
5
Section 25 of the Judicature Act.
6
Ephraim Kasozi and Juliet Kigongo monitor.co.ug/News/National/Mps-have-no-power-to-
probe-court-orders---judge/688337-5450774-6e6c8bz/indexhtml-Accessed on 10th March, 2020
7
[1875] LR 7 HL 653
8
Misc. Cause No 90 of 2011
9
Article 42 of the Constitution of Uganda
Substantive ultra vires is sighted where the proper authority is improperly constituted that is
when the proper authority may not be properly constituted as to quorum are not fulfilled. 10 In
English Law, the exercise of such a power will be quashed where on a proper construction of the
relevant statute, the decision maker has failed to take account of relevant considerations. 11 This
was seen in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation 12
where the justice stated, “If a wide range of considerations needs to be taken into account by
determining whether to take certain discretionary action on grounds of rational policy, courts
will seldom interfere at the instance.” In Uganda’s jurisprudence, this position is maintained was
seen in the statement of Justice Yorokamu Bamwine in the famous case of Mohammed Zziwa
Kizito & 3 others v Spidiqa Umma Foundation 13 as he said, “An act in excess of the authority
conferred by law is ultra vires and therefore invalid.” Also, all actions should be within the law
as was with the case of Sunderji Virji v Punja Hila 14 where court held that the act of the
chairman was ultra vires because the tribunal could only reach such decisions when it had a
minimum membership present. In relation to the above question, Mr. Odongo’s irrational
decision in failing to provide transparency in the management and delivery of the board’s
services in disguise of saving time without the required quorum is an ultra vires act.15

Manifestation of unreasonableness is sighted in a decision of a tribunal or other body exercising

a statutory discretion will be quashed for irrationality as a distinct ground of review that a
decision which is so perverse that no reasonable body, properly directing itself as to the law is
quashed. This is portrayed in the case of Council of Civil Service Unions v Minister for The
Civil Service16 where Lord Diplock held, ‘By irrationality, I mean what can be now succinctly
referred to as wednesbury unreasonableness’. In relation to the above question, Mr. Odongo’s

10
Coursehero.com/file/p4n0t/Substantive-ultra-vires-Substantive –ultra-vires-is-acting-in-excess-
of-powers/Accessed on 13th March, 2020
11
Halsbury’s Laws of England, 4th Edition 2001 Reissue, Administrative law Para 85
12
[1948] 1 KB 223 at 229, [1947] 2 All ER 680 at 682-683
13
HCCS No 012 of 2008
14
[1959] EA 734
15
Section 64 ( c) of the Local Government Act
16
[1984] 3 All ER 935
failure to involve other board members to a fair, speedy hearing before a tribunal portrays the
aspect of ultra vires.

Acting in excess of jurisdiction is also portrayed as a basis for challenging an action taken by an
authority or person as per Substantive ultra vires. This is audibly discussed in the case of Meade
v London Borough of Haringey17 where court stated that if a statute imposes a duty on a public
authority to do that in public interest but expresses it in general terms, then it is for the public to
determine the particular way which the performance of the statue can be fulfilled. This however
is contrasted in the case of Gullam Hussein v Lila18 where court noted that it was not possible
for a tribunal to delegate its power to any person because it involved a judicial decision and in
judicial matters is not based on individual judgements. In relations to the above question, Mr.
Odongo’s decision of awarding tenders without the quorum is a clear illustration of excess of
jurisdiction.19

Procedural ultra vires is failure to observe procedural fairness when arriving at a decision.
Consultation is also a reflective of the principle of democracy 20 where a decision-maker is not
bound by the views expressed during a consultation but is obliged to consult with an open mind
to take views into consideration. 21 22This is portrayed in the case of R v Hammersmith v Fulham
London Borough Council, ex p Beddowes23 where Fox LJ illustrated the scope and nature of the
obligation to consult may vary according to whether it arises from statute or legitimate
expectation. In relation to the above question, Mr. Odongo’s failure to consult other members
contradicts the right to be treated fairly in respect of any administrative decision.24

17
[1979] 2 All ER 1016
18
[1959] EA 734
19
Regulation 4 of the Public Service Commission Regulations
20
R (On the application of Moseley) v London Borough of Haringey 2014 UKSC 56, para 24
21
Halsbury’s Laws of England, 4th Edition 2001 Reissue Administrative law Para 627
22
Books.google.co.ug>books>Accessed on 13th March, 2020
23
[1987] QB 1050 at 1068, [1987] 1 All ER 369 at 382
24
Article 42 of the Constitution of Uganda
Certiorari is a remedy that is available to the members of the board and they may seek for this as
an order of High court quashing a decision made by an administrative officer. 25 The latest
development files in the face of a High court ruling by Judge Lydia Mugambe who described the
decision by State Minister of Works and Transport to cancel a similar understanding with China
Civil Engineering Construction Corporation over the same project as irrational. 26 This is sighted
in the case of Farida Katerega Zalwango & 2 other v The Deputy Registrar 27 where court
stated, “Certiorari lies on application of a person aggrieved to bring the proceedings of an
inferior tribunal before the High court for review so that the court determines whether it can be
quashed.”

In conclusion, I strongly affirm that Mr. Odongo’s decision of awarding tenders as a result of
saving time is an ultra vires act because this never constituted the quorum required. And the
aggrieved persons will have an available remedy of certiorari upon application for judicial
review in High court.

REFRENCES

25
Rule 10 (4) of the Judicature Rules, 2009
26
www.monitor.co.ug>home>news>national>By>Fredrick>Musisi>and>Risdel>Kasasira
Accessed on 13th March, 2020
27
Misc. Cause No 141 of 2011
 Chief Constable of North Wales Police v Evans 1982 3 All ER
 Owor Arthur and 8 others v Gulu University High Court Misc. Cause No 18 of 2007
 Ashbury Railway Carriage & [1875] LR 7 HL 653
 Motor centre East Africa Ltd v Public Procurement & Disposal of Assets Authority Misc.
Cause No 90 of 2011
 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at
229, [1947] 2 All ER 680 at 682-683
 Mohammed Zziwa Kizito & 3 others v Spidiqa Umma Foundation HCCS No 012 of 2008
 Sunderji Virji v Punja Hila [1959] EA 734
 Council of Civil Service Unions v Minister for The Civil Service[1984] 3 All ER 935
 Meade v London Borough of Haringey[1979] 2 All ER 1016
 R (On the application of Moseley) v London Borough of Haringey 2014 UKSC Para 24
 R v Hammersmith v Fulham London Borough Council, ex p Beddowes[1987] QB 1050 at
1068 [1987] 1 All ER 369 at 382
 Farida Katerega Zalwango & 2 others v The Deputy Registrar Misc. Cause No 141 of 2011
 1995 Constitution of Uganda
 Local Government Act Cap 243
 Public Service Commission Regulations Cap 277
 Judicature Act.
 Judicature Rules 2009
 Halsbury’s Laws of England, 4th Edition 2001 Reissue Administrative law Para 58, 85, 627
Vol 1 (1)
 Coursehero.com/file/p4n0t/Substantive-ultra-vires-Substantive-ultra-vires-is-acting-in-
excess-of-powers/Accessed on 13th March, 2020
 Books.google.co.ug.ug>books>Accessed on 13th March, 2020
 Ephraim Kasozi and Juliet Kigongo monitor.co.ug/News/National/Mps-have-no-power-to-
probe-court-orders---judge/688337-5450774-6e6c8bz/indexhtml-Accessed on 10th March.
2020
 www.monitor.co.ug>home>news>national>By>Fredrick>Musisi>and>Risdel>Kasasi
Accessed on 13th March, 2020