IN THE HIGH COURT OF UGANDA AT KAMPALA CIVIL DIVISION MISC. CAUSE NO. 113 OF 2015 UGANDA NATIONAL DAIRY TRADERS ASSOCIATION VERSUS 1. THE DAIRY DEVELOPMENT AUTHORITY 2. THE ATTORNEY GENERAL BEFORE HON. JUSTICE NYANZI YASIN RULING Background fact: 1. The applicant was on the 23" day of November 1999 registered as a company limited by guarantee under the name “Uganda National Dairy Traders Association Ltd”. It is an umbrella body of dairy traders in Uganda whose objective as stated in ground one of this motion but briefly that it promotes: -The production, collection, transportation, distribution, marketing and consumption of safe and affordable quality milk and milk products. N On the 10" day of December 2014, the Hon. Minister of Agriculture, Animal Industry and Fisheries as the line minister in charge of the application of the Dairy Industry Act Cap 85, under S.28 thereof made Statutory Instrument: 2015 No. 17. It was cited as The Dairy (Marketin:w s w rocessing of milk products) (Amendment) Regulation. 2015. It was gazetted in the Uganda Gazette No.22 volume CVIII on the 28.04.2015, meaning that is the day it came into force. S.1 2016 No.17 cited above is an amendment to SI 2003 No.26 which was made on the 11/April/2003. .S.1 2016 No.17 amended interalia Regulation 4 of the Principle Regulation referred to earlier as SI 2003 No.26. For reasons of relevance, I will reproduce both provisions. . Under Regulation 3(b) of S.I 2016 No. 17 while amending Regulation 4 provided: 3. Amendment of Regulation 4 of Principal Regulation (b) by inserting immediately after sub-regulation (2) the following: (2A) marketing and vending of milk in cities and municipalities. A person registered by the authority and issued with a registration certificate under Regulation 4 shall not market or vend unpacked or unlabelled milk in cities and municipalities. . Principal Regulation 4 of SI 2003-No.26 before amendment read as below. It is notable that its marginal note indicates that it was a Statutory Instrument Provision for requirement of Registration. 4 - No person shall undertake any or all of the activities specified in sub-regulation 2 unless the 2s N person is registered by the Authority and is issued with a registration certificate. (2) The activities referred to in sub-regulation (1) are: a) Processing milk or milk products. b) Marketing of milk or milk products. c) Operating a factory in which milk is processed or is intended to be processed. d) Controlling a store used or intended to be used for the storage of milk or milk products. e) The business of transportation of milk or milk products. f) Dealing in dairy equipment. (3) Any person who carries on any of the activities in sub-regulation 2 without registration commits an offence. 5 - The 1% respondent to this cause is created by S.2 of the Dairy Industry Act and it appears using its power under S.5 of the same Act. On the 27 May, 2015 according to the undisputed evidence in affidavits and annexture KM-5 to the affidavit in rejoinder, through its Executive Director called a meeting of the members of the applicant for among other items on agenda the “amended Dairy Regulation” as the ED wrote that there was need to bring the members of the association on board on some of the amendment. It appears to be as claimed in affidavit evidence that it was at that point that the members of the Association learnt of the amendment in SI 2016 No.17 and decided to challenge it hence this motion. : This motion was filed in this court on the 28" July 2015 under SI 2009 No.11 the Judicature (Judicial Review) Rules, 33, 6 and 7. It basically seeks two orders to be made by this court. Namely: 1, An order of Certiorari to quash Regulation 3(b) of the Dairy (marketing and processing of milk and milk products (Amendment) Regulation (as cited above). N . An order of prohibition against the respondents, their servants or agents or any other person from enforcing the impugned regulation. 8. The grounds of this application were supported by the affidavit of KHALID MATOVU and EDWARD BUTERA. This application was opposed by two affidavits in reply. They are affidavits of Dr. Jolly Zaribwende the Executive Director of the 1 Respondent and KIYINGI Josephine PSA with the chambers of Attorney General. 9. The submission of the first Respondent raised preliminary points of law that need to be resolved as the answer to those questions has the effect of disposing of the whole matter. The point raised was that Regulations made by the minister as a legislation were not amenable to judicial review as a mere administrative decision. 10. M/s Mayende Associated Advocates for the respondent referred this court to two decisions to guide it on the ambit on judicial review. The two decisions are: Chief Constable of North Wales police Vs Evans [1982] 3 All ER 141 and the local decision of Kul h A 1w Vs At Cause No. 106/2010 by Yokoram Bamwine J (as he then was).He Learned counsel further referred me to two decisions of the High Court to support his reasoning. One of the two cases was decided by myself and the second one by my brother judge the Head of this Division Stephen Musota. In prime contractors Ltd Vs PPDA & Another HC, MC No. * 91/2014 I held that the High Court cannot exceed the scope of judicial review to quash Regulations of PPDA since the regulations are not decisions of a quasi body but provisions of the law. I made that decision on 30" October 2015. i. Earlier on the 28.08.2015 my brother judge Musota had made a similar finding in Consolidated Contractors Ltd & Ors Vs PPDA & AG HC, MC No. 81/2014. In that case, the learned judge just like me after reviewing the purpose of judicial review with particular in reference to the case of John Jet Tumwebaze Vs Makerere University Council & Ors C. App. No. 353/2003 per Kasule Remmy Acting judge (as he then was) held that: “The regulations which the applicant seeks to be quashed are not decisions under judicial review and accordingly this court has no powers to call and quash laws made under the legislative arm of government.” ech Both Judge Musota and I dismissed the above two applications for majorly because of the similar reasons we gave. It is for the same reasons that learned counsel for the 1% Respondent invited me to dismiss this application. 14, In rejoinder submission, learned counsel Isaac K. Semakadde disagreed with the submission of the 1% Respondent and the decision I made in the quoted case. The 5advocate cited and relied on cases and judicial literature to argue that this court can make a decision that quashes Regulations and secondly to show how judicial review has developed in other jurisdictions similar to ours like in Kenya and South Africa where such decisions are made. He finally referred to another authority to show that by reason of and the very nature of the doctrine of precedent, there are valid reasons for court to consider and it departs from its earlier decision. Because the matters raised by both sides are very crucial, I will reproduce the relevant parts of Semakadde’s arguments. 15. In H.C Misc Application No.645/2011 nbic Bank Uganda Ltd Vs Attorney General before Mulyagonja J (then a Judge of the High Court) the applicant challenged SI No 2/2011 Trade (Licensing) Amendment of schedule items 25 and 28 thereof. The minister under S.8 of the Trade (Licensing) Act amended part A of the schedule to the Act to include Banking Institutions to be issued with Trade Licences by Local Authorities in order to do banking business for all ATM (Automatic Teller Machines). The applicant bank challenged the new Regulations as banks were licensed under The Financial Institutions Act SS.10-17, particularly S.13 (a). That they paid for operational license every year and therefore S.8 (2) of the Trade (Licensing) Act was not applicable to them. 16. After hearing both sides, my learned sister judge found that : “Amendment of schedule S.I 2 of 2011 does contravene the provisions of the principal Act and that the Minister acted outside his powers when 6he included items 25 and 28 on the schedule and that the Regulations are null and void". She accordingly quashed the Regulation. 17. It is noticeable that the above decision was made on » 21/02/2011, far earlier than my decision of 30 October 2015. Although I am aware that her decision does not bind me, I am also aware that it was never raised as an issue before Irene Mulyagonja J to decide like I am required to, whether or not in Judicial review the High court can quash administrative legislations made under an Act of Parliament. 18. Learned Counsel Semakadde referred this court to two Kenyan decisions. In Judicial Review case No.2 of 2014 Kenya Country Bus Owners’ Association & others Vs Cabinet Sec. for Transport _and Infrastructure & 5 others, the Kenyan High Court quashed the offending parts of the National Transport and Safety Authority (operation of public service vehicles) Regulation 2013. 19. In South Africa, this court was referred to Constitutional court of S.A case No 59 of 2004 Minister of Health and Another Vs New clicks of South Africa (PTY) Ltd and 8 others where the court held that the making of a delegated legislation by a minister in an administrative act or decision, amenable to Judicial Review by the High Court. 20. I have to consider the authorities learned counsel Isaac Semakadde cited to me to decide whether Administrative Statutory Instrument made by a Minister are amenable to Judicial Review. I now have to decide whether to stick to my 7decision of Prime Contractors Ltd V PPDA (Supra) by reason of the doctrine of precedence or depart from it. 21. To this effect I was referred to Constitutional Appeal No.001 of 2002 Paul Kawanga Semogerere , 2 Achery Olum_and_ Juliet Rainer Kafire Vs AG which is very * instructive on this point of law. The Constitutional Court observed on the principal of departing from an own precedent “The principal is a codification of the principle enunciated in the case of Dodhi V National Grindlays Bank Ltd [1970] EA 195 and the House of Lords’ practice statement (Judicial precedent) (1966) I WLR 1234. The above doctrine of precedent requires lower courts to follow decisions of higher courts on questions of law. The doctrine also lays down when a court is not bound to follow a decision of a higher court. As regards its own decisions, it would normally be bound by them except under three circumstances set out in Young V Bristol Aeroplane Co. LTd (1994) K.B 718 which was approved in Dodhi’s case (Supra) where LAWJA said at P.20. “In Kiriri Cotton Co. Ltd Vs Ranchoddas Kasharil Dawan (1958) EA 239 Sir Kenneth O. Cornor P. with concurrence of the other members of the court, held following Young Vs Bristol Aeroplane Co. Ltd (1944) KB 718 that the principal of Stare decis is followed by this court subject to the following qualifications:1) That the court is entitled and bound to decide which of the two conflicting decisions of its own it will follow. 2) That this court would be bound to refuse to follow a decision of its own which though not expressly overruled cannot stand with a decision of the Privy Council or the House of Lords. 3) This court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriom” 22. I now have to decide how the above tests are applicable to this case. As to test number one I am aware I am entitled to decide which of the two authorities I would follow. This court in Stanbic Bank (U) Ltd V AG (Supra) did not have difficulty in deciding to quash a subsidiary legislation of a Minister as already discussed. In Prime contractor Ltd V PPDA i ruled that such legislations are not amenable to judicial review. A similar question is back now. That is how applicable test one is related here. In reviewing all the available judicial literature to this preliminary point of law and the decision I will reach satisfy qualification number one that I am entitled and bound to decide which authority or position I will follow. I have not left the question hanging and simply preferred one authority to the other. 23. Test two of having an authority of the Privy Council or House of Lords may not directly apply here and even if it were to apply I would be more concerned with the decisions 9of the Supreme Court of Uganda other than the Privy Council or House of Lords decisions but of course subject to the applicability of the effect of the “reception date” to the applicable law in Uganda. I have not been referred to any Supreme Court decisions for consideration here in order to _ decide whether my earlier decision though not expressly overruling such decisions cannot stand with them. 24. As to the third qualification, it appears to be the most relevant here. It allows court not to be bound by a decision it reached per incuriam. A decision is said to have been reached per incuriam according to OSBORN’S CONCISE LAW DICTIONARY 8" ED P.246 when it is reached without the court’s attention having been drawn to relevant authorities or statute. It is in effect not a binding precedent on grounds of being mistaken. 25. In my view the above is exactly what happened when I decided Prime contractors Ltd V PPDA case. It is said of the authorities learned Counsel Semakadde referred me to, in Charles Onyango Obbo_ & Another Vs AG SC Constitution Appeal No 2 of 2002 per Oder JSC (RIP) that most of these cases decided in common law jurisdiction like our own dealing with issues of law and fact similar to those in the present case ...... though not binding, they are of persuasive value and should be followed unless there are special reasons for not doing so. 26. I found very persuasive and treated as binding the South Africa authority of Minister of Health and Another V_New Clicks of South Africa PTY Ltd Supra where the court held that the making of regulations falls within the scope of administrative action. Court ordered that, 10“That it follows that the making of the regulation in the present case by the minister on the recommendation of the pricing committee was a decision of an administrative nature.” It is such interesting and binding authorities that I did not have in consideration when deciding Prime contractor's case. 27. I must also admit that had I considered the broader view expressed in Fr. Francis Bahikirwe muntu & 15 others Vs Kyambogo University Misc Cause No 643/2005, I would have reached a different conclusion. In that case Kasule Remmy J (as he then was) reasoned; “The new constitutional order reflected in 1995 Constitution has broadened and given greater importance to the whole area of Judicial Review”. 28. The learned judge so reasoned because Article 42 of the Ugandan Constitution makes it a right to apply for judicial review remedies where applicable. The same reasoning was expressed by the High Court of Kenya in NRB H.C Judicial Review case No 81 of 2013 Town Council of Kikuyu Vs National Social Security Fund Board of Trustees. The case observed; “The court envisions a future growth of judicial review in human rights arena where it is becoming crystal clear that human rights will evolve and grow with society”. 29. have also reflected on Article 1 (1) of the Constitution of Uganda which provides that:“All power belongs to people who shall exercise their sovereignty in accordance with this constitution”. My view is that the right created under Article 42 of the Constitution of Uganda is one of the ways that allows the _ People to show that all power belongs to them and that right can only be achieved through judicial review. That is why the right to seek judicial review orders in Uganda is constitutional. 30. For the reasons above given, I have preferred not to be bound by my earlier decision of Prime contractors Ltd and the decision of my brother judge Musota in Consolidated Contractors Ltd V PPDA & AG Supra. My finding is that by reason of Article 1 (1) and Article 42 of the constitution of Uganda and the binding authorities I reviewed, this court has the power to consider and decide the legality and validity of Statutory Instruments made under Acts of Parliament by the minister or any authorized body. 31. Turning to the merits of the case, I have read the grounds of the application and the supportive affidavits opposing this application and the resultant submission of both sides from which I have framed two issues to be answered by this court in this ruling. Namely the two issues are; (i) Whether the applicant had a legitimate procedural expectation to be consulted before SI No 17 of 2015 was enacted by the minister responsible. 2(ii) Whether the enactment of SI No.17 of 2015 by the minister was an irrational decision. 32. I must mention that the first issue covers the concerns of the learned counsel for the respondent when he argued that under S. 28 of the principle Act the minister had no duty to consult the applicants but only the 1% respondent which in his view he did. If I were to frame that issue from that angle it would have been whether the minister had a duty to consult the applicants in the light of the provisions of S.28 but I have preferred the one framed by the court for being broader. a, I say broader because as some areas of this ruling will show the doctrine of legitimate expectation is a judicial innovation that provides /ocus standi (Capacity to bring an action in a court of law) to a person who though does not have a legal right, does have an expectation of the concerned authority behaving or not behaving in a particular manner or way. 34, The affidavit of Khalid Matovu and that in reply of Dr. Jolly Zaribwende with the submission of both counsel provided adequate information for consideration by this court. Paragraph 3 of Khalid Matovu’s affidavit in support referring to a letter inviting the respondents for a meeting to inform them of the coming into force of S.I No.i7 of 2015, paragraph 5 of the affidavit in rejoinder by the same deponent with annextures KM-4 and paragraph 6 still of Khalid Matovu in rejoinder was the basis of arguments learned counsel Isaac K. Semakadde made in his submissions from page 2 paragraph 1.1.0 to page 13. For reasons of clarity I will reproduce some of those arguments. 335. 36. At page 2 of the written submission “At common law the discretion of Statutory Authorities is never unfettered. Even when there is no express requirement, the common law implies an obligation on every statutory body to act ... fairly ... see Brean V Amalgamated Engineering Union [1971] 2 others 175. 190 a and Marko Matovu and 2 others V Muhamadi Seviri & Another C.A, Civil Appeal No. 7 of 1978. under sections 3(c), 4,5,8,20,24,25,26 or 28 of the Principle Act the respondents were duty bound to consult the applicants, its members Dairy farmers, consumers and other persons who were likely to be affected by the impugned regulations before they were adopted. But they did not.” As a matter of evidence the respondent does not deny that they did not consult the applicants. Annexture Km-5 to the affidavit in rejoinder by Khalid Matovu proves that point. While SI No 17 of 2015 became law and enforceable on 28.04.2015 by reason of being gazetted, the meeting to inform stakeholders about it was called on 27.05.2015. In Annexture KM-5 the ED of the 1* Respondent briefly wrote, “The Government of Uganda has amended the Dairy (marketing and processing of milk products) Regulation 2003 as amended in 2006 effective 28°" April 2015, there is a need to bring you onboard on some of the amendment.” (Emphasis added). The last part of the letter proves that the applicants got to know of S.I 17/2015 after its enactment. a7, At page 3 learned counsel continued with submissions making a case for consultation quoted as below “Consultation of persons who may be affected by a given measure before it is adopted is presently recognized as part of the duty cast by the common law upon a public authority to act fairly ... see the following cases R Vs London Borough of Haringay exparte Mosely 2014 UKSC 56 ... The lead judgment of Lord Wilson at paragraph 23 “A Public Authority’s duty to consult those interested before taking a decision can arise in a variety of ways. Most commonly as here, the duty is generated by statute. Not infrequently, however, it is generated by the duty cast by the common law upon a public body to act fairly. The search for demands of fairness in this content is often illumined by the doctrine of legitimate expectation. Such was the source for example of its duty to consult the residents of a care home for the elderly before deciding whether to close it in R Vs Devon County Council exparte Baker [1995] 1 All Eng 73.” (Emphasis added). 1538. In Lloyd Vs McMahon [1987] AC per Lord Bridge - counsel quoted him to have stated “It is well established that when a statute has conferred on anybody the power to make decisions affecting individuals, the court will not only require the procedure prescribed by the statute to be followed but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness”. 39. The third example the advocate gave is drawn from the case of Interbrew S.A and Interbrew UK Holdings Ltd Vs the Competition Commission & the Sec. of Trade and Industry (2001) EWHC Adm. Per Moses J. he is quoted at page 4 of the written submission to have reasoned and stated “Where convention rights are at stake those adversely affected should be involved in decision making progress to a degree sufficient to provide them with requisite protection of their interests”... ... Any person who may be adversely affected by a decision should be placed in a position in which he may be effectively make his views known, at least as regards the matters taken into account by the commission as the basis of its decision”. (Emphasis added). 40. | In the applicants’ views from the submission of the advocate, under S.3 (c), 5(a), 20 (7), 25(1) and 28, one is free to add S.9 (5), they had to be consulted before any decision to promulgate S.I No.17 if 2015 was made. He 16supported that conclusion with the decision of LAWS L.J in R(Bhah Murphy) Vs Sec. of for Home Rx [2008] EWCA Cir. 755 paragraph 50 to have stated “A very broad summary of the place of legitimate expectation in public law might be expressed as follows. The power of public authorities to change policy is constrained by the legal duty to be fair ... A change of policy which would otherwise be legally unexceptionable may be held unfair by reason of prior action or inaction by the authority. If it has distinctly promised to consult those affected or potentially affected then ordinarily it must consult the... case of procedural expectation. . If without any promise it has established a policy distinctly or substantially affecting a specific person or group who in the circumstances was in reason entitled to rely on its continuance and did so, then ordinarily must consult before effecting any change. .. To do otherwise in any of these instances would be to act so unfairly as to perpetrate an abuse of power". 41. At page 6 of the plaintiff's submission the learned advocate made the conclusion below; “Paragraph 18 of Dr. Zaribwende’s affidavit in reply and the unrebutted averments in paragraph 9,10,11,12,13,14,15 and 16 of Khalid Matovu’s affidavit in support of the motion and paragraph 5,11,12,13,14,15,16,17 and 18 of his affidavit in rejoinder clearly show inter alia that for a period v742. of more than 15 years the respondents have “registered”, “licensed”, ‘supported’ and “facilitated” the applicants and its members to deal in unpackaged and “unlabelled” milk in cities and municipalities... .. and in all this time, there was not a single documented public health or unfair competition complaint associated with the trading practices of the applicant or its members. But on 28" April 2015 with no prior notice, warning or consultation, the applicant were disgraced, blacklisted and ordered by the respondent to cease .... dealing in unpackaged and unlabelled milk in cities and municipalities”. In reply, for the reasons stated at page 4 of the written submission of the 1%* Respondent which for reasons of brevity are not repeated, the 1% respondent did not respond to the whole application. The relevant part of the 1% Respondent's submission in reply is at page 5 where it is reasoned as below: 43. “The minister is empowered under S.28 of the Dairy Industry Act Cap.85 with consultation of the 1° Respondent to make regulations that put effect to the Act or on anything that the minister deems fit. The authority and powers of the minister are not contested by the applicant in the affidavit. The only requirement under S.28 is for the minister to consult the 1* Respondent rather than the applicant as alleged. 18It is therefore our submission that basing on S.28 of the Dairy Industry Act, the consultation of the Applicant was never a requirement bestowed upon the minister before the regulations were made. It is our submission that the burden is upon the applicant to satisfy this court that the applicant ought to have been consulted before the law was put in place and as such the respondent violated their right to a fair hearing. S. 101 of the Evidence Act states that whoever desires any court to give judgment as to any legal right or liability on evidence of facts which he or she asserts must prove that those facts exist. See Sheikh Ali Senyonga Vs Sheikh Hussein Raja Kakooza & 6 others SCCA No. 9 of 1990 [1992] KALR 30” 44. However the burden of proof as held in Paul Mwiru Vs Nathan Nabeta Election Petition Appeal No.6 of 2011 per Byamugisha JA seem to be on the state in such cases to prove that actions by Government agencies actually occurred. 45. Learned counsel for the 1* respondent after arguing that the minister had no duty to consult added what appeared to be an argument in the alternative which is a reply to the lengthy submission of Semakadde. At page 6 he wrote, as below: “(The Act) never required the minister to consult the applicant. The only valid argument that could 19be raised if any, would be if there existed any express promise from the respondents that prior to any legislation the applicants are always consulted by virtue of being stakeholders in the industry intended to be regulated by the impugned regulation and as such one would expect the same practice to continue before the regulations were put in place”. 46. _ Lentirely agree with learned counsel Mayende for the 1 respondent but with respect he wrongly framed the question. What needs to be proved is not the existence or the continued exercise of the authority or the minister consulting the stakeholders but the existence of a promise some times express or in other cases implied that the situation, the right, the benefit the applicant enjoys or has enjoyed in the last period would not be adversely affected by the decision of the authority or official without that person being consulted. 47. The above is the conclusion in the case counsel himself cited. Per Lord Diplock in OT REILLY VS MACKMAN 1982)3 AIIER 1/24, it was held that: “Legitimate or reasonable expectation may arise either from an express promise given on behalf of a public or from the existence of a regular practice which the claimant can reasonably expect to continue.” (Emphasis added) 48. What a claimant expects to continue is the practice, the benefit, the right etc and not that he/she is consulted. What is to be proved is that there was a relationship, practice or promise. My considered view as counsel Mayende reasoned is 20that this requirement is applicable here. Counsel concluded at page 7 of his submission that there was no breach of any legal provision, promise or practice expected of the respondents before the regulations were made. 49. As this ruling shows, I took pains to peruse the lengthy * submission of advocates which I will not repeat in my reasoning. Required of me now is to decide whether expressly or impliedly the 1% Respondent made a promise or established a regular practice or conduct, or rendered a service or placed the applicant in such a position such that the applicants reasonably or procedurally expected the 1* respondent to consult them before the same could be adversely affected. 50. Paragraph 5 of Khalid Matovu’s affidavit in reply is relevant in answering the above question. However before the relevance of the affidavit is discussed, one cannot miss to observe the relevance of regulations 4-13 of SI. No.22/2003. These regulations show how the 1‘ respondent has absolute and strict control over trade in milk. The provisions show that the respondent permits the trade in milk, registers dealers, issues certificates to the dealers, controls the process of applications for certificate, has power to issue, suspend, or cancel the dealership certificate. It is under the powers the 1* respondent has under Regulations 4-13 that annexture KM-4 to the affidavit in rejoinder by Khalid Matovu were issued to the applicants. 51. In paragraph 5 of the rejoinder affidavit the deponent swore that: . “In specific rejoinder to paragraphs 4,5,18 and 19 of DR. Zaribwende’s affidavit, I know that several years 2before the impugned Regulations came in force the first Respondent regularly registered various members of the applicant to deal in unprocessed, unpacked milk. It was therefore unfair and unreasonable for the 1% respondent not to consult the applicants and its members before endorsing the minister to make a drastic policy reversal... (Attached hereto marked KM-4) is a bundle Ora some registration certificates issued by the 1% Respondent”. 52. From annexture KM-4, it appears that a certificate issued by the Authority under Reg. 10 (4) is for a period of 12 calendar months. Annextures KM-4 prove that each year the 1* respondent would issue a certificate to any active member of the applicant so as to operate. The available certificate date back from 2007 to 2015. This certificate is issued at a fee. For example, Katwe Fresh Dairy paid shs 200,000 in order to operate in transportation of milk using vehicle Reg. No. UAD- 492S in 2008. See annexture KM-4(b). Annexture KM-(a) shows that ABESIGWA DAIRIES paid shs 75,000/= as a fee to operate for the year 2015. 53. In my view the above evidence is enough to prove there existed between the 1% Respondent and the applicant’s members a relationship, a practice the applicant would have expected the authority to consult them before they are adversely affected by any such decision. 54. Iwill use annextures KM-4(a) KM-4(b), KM-4(c), KM-4(d) and KM-4(e) to justify my conclusions. All those certificates were issued on 13" March 2015 to be operating from 1% Jan. 2015 about a month and 10 days after the authority which gave the certificates wrote to them without prior consultation 2to inform them that a decision had been taken adversely affecting their certificates that were still operational till 31.12.2015. 55. It is of interest to note that it had become an offence for those dairy dealers to use those certificates in cities and municipalities. That is the effect of amendment of Regulation 4(2) by adding amendment in (2 A) in S.I No.17 of 2015 which reads; “A person registered by the Authority and issued with a certificate under Regulation 4(1) shall not market or vendor unpackaged or unlabelled milk in cities and municipalities”. 56. By reason of S.21(b) of the Dairy Industry Act the applicant would have committed an offence, if they used their certificates after the 28.04.2015, the section provides S.21 Any person who, (b)Contravenes a provision of this Act or a condition of registration commits an offence... 57. The above is what exactly makes the applicant’s case that the authority would have consulted them before enactment of S.I No.17 of 2015. In brief the case is, i) They had valid certificates to do dairy business for 2015 issued in March, 2015. ii) They were actually doing the business they registered for. iii) The certificate was issued at a fee which is statutory making the relationship definitely an express one. 23to inform them that a decision had been taken adversely affecting their certificates that were still operational till 31.12.2015. 55. It is of interest to note that it had become an offence for those dairy dealers to use those certificates in cities and Municipalities. That is the effect of amendment of Regulation 4(2) by adding amendment in (2 A) in S.I No.17 of 2015 which reads; “A person registered by the Authority and issued with a certificate under Regulation 4(1) shall not market or vendor unpackaged or unlabelled milk in cities and municipalities”. 56. By reason of S.21(b) of the Dairy Industry Act the applicant would have committed an offence, if they used their certificates after the 28.04.2015, the section provides §.21 Any person who, (b)Contravenes a provision of this Act or a condition of registration commits an offence........ 57. The above is what exactly makes the applicant's case that the authority would have consulted them before enactment of S.I No.17 of 2015. In brief the case is, i) _ They had valid certificates to do dairy business for 2015 issued in March, 2015. ii) They were actually doing the business they registered for. iii) The certificate was issued at a fee which is statutory making the relationship definitely an express one.iv) Breach of S.I No.17 2015 had penal implication of payment of a fine and imprisonment or both such a fine and imprisonment. v) By reason of S.3,4,5 and 9(5) of the Parent Act, S.25 and 28 of the Parent Act, the 1% Respondent is the only link between the individual Dairy farmer and the minister responsible. 58. InR. Ei Dew h Al ri exparte Coughlan [2001] QB 213 popularly known as the Conghlan case the facts and the decision of court would be relevant to support my findings in cases of express promise or relationship. 59. The simple facts of that famous case are that Miss Coughlan was grievously injured in a road accident in 1971. From the date of her accident till 1993, she resided in and received nursing care in NEW COURT HOSPITAL. As the facilities of New court hospital were deemed inadequate for the care of long term, severely disabled patients, a new Hospital called MARDONE HOUSE in ESSEX was established by the National Health Service (NHS) to replace Newcourt Hospital. As managers of the new Hospital, - the North and East Devon expressly assured Coughlan and other patients with similar Health conditions that they could live in the new Hospital at “Mardon” for as long as they chose. 60. However in 1996, the Health authority decided to close Mardon Hospital where Coughlan was then resident and to transfer the long-term general nursing care of the applicant to the local Authority. The Health Authority reasoned that the continued provision of the care service to the current residents in Mardon had become costly, financially not viable and 24resulted in fewer resources for other services. Although the Health Authority undertook to fund the applicants care for the remainder of her life, they did not offer to provide her with a home for life as promised. 61. Subsequently Coughlan applied for Judicial review of the +Health Authority’s decision to close Mardon Hospital and asserted that the authority had acted unlawfully in breaking the recent and unequivocal promise given by it that the applicant and other patients could live there for as long as they chose. In the decision of the High Court the application for Judicial review of the Health Authority decision was granted. The ruling of both the High Court and the Court of Appeal are of relevance to this ruling. 62. Justice Hidden hearing the cause at the High Court held that, “The representation made by the Health Authority towards Coughlan and other patients amounted to an explicit promise that Mardon House would be their home for life... . was a promise to provide care at various unspecified locations... . To resite from such a promise would amount to unfaimess. However in the case where an overriding public interest demanded, the Health Authority could be justified to break its promise. On the facts of the case the Health Authority could not produce proof that there were compelling circumstances amounting to overriding public interest ...” 2563. The respondent Health Authority was aggrieved by the finding of the High Court on Appeal the Court of Appeal upheld the High Court decision reasoning that, 64. .. The legitimate expectation arose from the fact that the promise made to Coughlan had been specific to those promises. . The Health Authority was unable to show that there were over riding public interest which warranted a departure from the promise the court took into account the fact that the Authority failed to mention any alternative accommodation to be offered to the applicant. Thus it is concluded that the decision to close Mardon House constituted unfairness amounting to abuse of power". If from the decision in Coughlan therefore that it becomes paramount that before any decision is rashed to, the court must decide in this case; i) ii) Whether there was an overriding public interest demanding departure from the practice of licensing members of the applicant to sell unpackaged and unlabelled milk in cities and municipalities. Whether the respondents offered any alternative to the applicants as to what to do with the milk particularly in areas where there are no facilities required. 65. On the question of the existence of overriding public interest Dr. Zaribwende gave evidence in her affidavit in reply paragraph 13,16.17,18 and 19. The gist of evidence in those paragraphs is that S.I 11/2015 was introduced to promote public safety as packaging and labeling was to make it easy for 26the Authority to trace the origin of unsafe milk. It is generally to ensure health and safety of consumers. 66. In rejoinder affidavit evidence of Khalid Matovu above is challenged in paragraphs 7,8 and 9. Khalid Matovu’s outstanding reason for challenging Dr. Zaribwende is that the contents of paragraph 13,16,17 and 18 of her affidavit are not based on any authentic report call it imperical evidence to show that mere packaging and labeling of milk is mainly to enable the respondents to achieve the targets of: a) Monitoring milk source b) Protection of consumers from adulterated milk c) Value addition to milk d) Traceability of origin e) Widening the market 67. Ihave read all the relevant paragraphs of Dr.Zaribwede’s affidavit, one quick conclusion I have drawn is that none of the claims is supported by any imperical evidence as Khalid Matovu claimed. The deponent elected to make general statements yet by reason of her position an Executive Director court would have expected her to be in position to access any information of any kind. 68. Secondly I have read and noted that S.25 (2) (a) allows the minister to make regulation with partial application in Uganda. It provides, (2) "The regulation made under sub-regulation (1) may apply to . (a) The whole or any part in Uganda. 27However both SI 26 of 2003 and its amendment in SI 17/2015 were made under S.28 and not S.25 of the Dairy Industry Act, that being the case the National Objective and Directive Principle of State Policy clause XII (ii) of the Constitution of Uganda could apply here. It provides (ii) The state shall take necessary measures to bring about balanced development of different areas of Uganda and between the rural and urban areas (emphasis added). 69. In SI No.17 of 2015 specifically the minister limited its application to cities and municipalities. It would be demeaning of the rural citizen of this country for this court to conclude that it is the urban cities and municipalities which need safe unadulterated milk and they are the ones to be protected from unsafe milk to be Healthy. If it is true that there was such an overriding public interest, then S.I No 17/2015 would be of general application. Who wants and should take adulterated milk? 70. The mere fact that the S.I No 17/2015 was of selective application proves that there was no overriding public interest for it. I may observe that Medical and Primary Health Care standards being lower in rural areas than urban then the rural area needed the law more. As far as overriding public interest is concerned the minister and the ED made no case and the defence is not available to them. 71. The second issue I framed dealt with the respondent availing alternatives to the milk dealers after enacting the questioned S.I. The affidavit evidence in paragraphs 10(a),(c),(e),12,13 & 14 of Khalid Matovu in rejoinder supports the claim that there are no adequate alternatives especially in urban areas in 28Eastern, Northern, mid-Western and Central Uganda see Annexture Km-6. 72. Annexture Km-6 is said in paragraph 10(a) to be data sourced from the 1% Respondent's source. There is no evidence denying that. I therefore take it so. It shows the name, number, location and capacity of milk processing plants in Uganda. They are only 89 in number. Except for Apach the list does not include any plant in the North, North - Eastern, West, Eastern Uganda. The list shows concentration of all the plants in Western and Central Uganda. That leaves the rest of the country without any infrastructure. 73. Paragraph 12 of Khalid Matovu’s affidavit in support contains further evidence of absence of alternatives. For reasons of evidence I will reproduce it. 10“... I know that the local producers of milk are hampered by lack of milk collection centres (MCCS) to which raw milk vendors would take their milk for cooling, sale or final transportation to the processing plants. Of the 40 (Forty) MCCs presently managed by the 1° respondent only Soroti, Busia, Gulu and Hoima are functional and the rest are redundant”. 74. This evidence is not denied by Dr. Zaribwende in her affidavit in reply. If the contents of paragraph 10 above are compared to the contents of KM-6, it is noticeable that the areas like Soroti, Busia, Gulu which have operational MCCS do not have any milk processing plant. All that add up to prove that there is absence of alternatives to the milk dealers was not considered under the new provisions of SI 17/2015. Interestingly Dr. Zaribwende does not deny these facts. 2975. and the analysis hereof, there was no overriding public interest It is consequently my finding that upon affidavit evidence to warrant the ban of unpackaged and unlabelled milk. Secondly the milk dealers were left with no viable alternative as evidence showed that the structures themselves are not enough. The existing ones are not functional and their distribution in Uganda is haphazard. Where MCCs exist, no processing plants exist. 76. The situation leaves so many questions unanswered. For example (a) Where would those milk dealers who are unable to sell the banned milk in cities and Municipal.Councils sell it? (b) What would happen in case of excess supply in the permitted areas due to the ban for the reason that many dealers may not avoid to package and label milk. (c) The ban came in force on 28/04/2015. The dealers were informed in a meeting of 27/May/2015 what would happen thereafter in form of alternatives, especially for the period for which they had certificates? (d) What happens to those areas which are now Town councils but may be under the Local Government Act be gazetted to become Municipal Councils What do the dealers do to their existing markets for milk? 30(e) What alternatives are there for such dealers if S.1 17/2015 is implemented as packaging and labeling may require use of machinery however simple. 77. The last issue for my consideration is as stated, Whether the enactment to S.I No.17 of 2015 by the Minister was an irrational decision. 78. In the light of my finding on the first issue of procedural expectation, I will be brief on this issue. I will define what an irrational decision is and give reasons for or against finding that the decision here is irrational. 79. By definition the case of Fr. Francis Bal irwe Muntu and 15 others Vs Kyambogo University Msc Application. No 643/2005, an irrational decision was said to be by Kasule Ag. J. (as he then was) “Irrationality is when the decision making authority acts so unreasonably that in the eyes of court no reasonable person addressing itself to the facts and the law before it, would have made such a decision. Such a decision must be so outrageous in its defiance of logic or acceptable moral standards that no sensible person applying his/her mind to the questions to be decided could have arrived at such a decision.” 80. There are not so many areas in which the minister's decision was irrational. However two examples persisted in my mind. The first one is the grant of certificates permitting the applicants to operate on 13" March 2015 as annextures KM 4 (a) to (e) showed and then one and % month after on 3128.04.2015 enacted a law and brought it in force with effect the certificates would not be used in cities and M.C and that the use of the same certificates would be a criminal act under S.21 of the Dairy Industry Act. And in so doing all was kept a secret from the stakeholders. Learned counsel Semakadde termed that conduct as “secret law- making”. 81. One wonders if the 1% respondent knew that in just 45 days a law would be brought in force to limit the use of annexture KM-4(a) to (e) to areas including cities and M.C why did she tell the stakeholders that the certificate should not be paid for or grant them for partial use? 82. If the ED and the minister knew that the use of the certificates they had given to the dairy dealers would turn into a criminal act 45 days if used, they ought to have told them so. 83. As far as that conduct is concerned in my opinion the conduct of the 1° Respondent and the line minister and the decisions they took were irrational in terms of the definition I stated above without repeating it. 84, I have compared the respondent's conduct to a land lord who takes rent from a tenant for a period running from January 2015 to December 2015. On 13" March 2015. On 28/04/2014 that land lord asks the tenant that he/she will .vacate part of the house as he/she did .not qualify to occupy it in the first place. That would be irrational decision and no reasonable person can arrive at such a decision correctly applying the 6" law to the facts of the case. 3285. Learned counsel for the respondent asked me to resolve this matter by referring it to the relevant body under Reg Rule 10 (4) of SI 11/2009 the (Judicial Review) Rules. I would have agreed with him as this is one of the best way to let administrative Authorities exercise their powers and remain relevant. Courts should not replace those authorities. 86. I however have three reasons to differ. I earlier showed in this ruling that there was no imperical evidence to show that there was overriding public interest. The explanations Dr. Zaribwende gave were bear without any scientific conclusions. 87. Secondly evidence of the applicant proved lack and inadequacy of the milk industry infrastructure unless the otherwise is proved. Some areas in Uganda do not have any feel of the Dairy Authority. The ED expects to trace her Dairy farmers in the Market when they come to sell Milk instead of homes and Diary Farms where the milk comes from which is ridiculous. 88. Lastly the respondent's conduct of partially cancelling certificates issued is an example of impunity which this court cannot allow. This case serves as an example to show that in service delivery, those entitled to the service are reduced to beggars. 89. It shows the penal oriented attitude developed by the Agro- related Development authorities towards farmers and animal keepers where the regulations are more concerned with offences and training. It shows how the authorities tend to 33behave in such a manner that takes them to be the bosses of the service users they serve instead of the reverse. It shows how decision makers completely ignore the stakeholder when making decisions. They deny them relevant information before, during and after making the decision and only involve them when is convenient to the Authority to do. It is for that reason that I decline to refer this case to the Authority under R.10(4) of SI 11/2009. 90. I instead allow the application by quashing Regulation 3(b) of S.I 17 of 2015. I further issue an order of prohibition against the respondent, their servants and agents or any other person including the police force by reason of S.33 of the Judicature Act, from enforcing the impugned regulation. 1 award the costs of this application to the applicants. Ny NYANZI YASIN JUDGE 21/04/2016 34