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Pharmaceutical Society of Uganda wins Big in the High Court

Hon. Justice Ssekaana Musa has ruled that “the inclusion of pharmacies and drug stores among the areas of issuance of trading licenses is illegal and contrary to the National Drug Policy and Authority Act and it conflicts which specific legislation. Where two legislations conflict i.e between general legislation and specific legislation, the specific legislation overrides the general legislation on the subject
matter. Generaliabus specialia derogant or Generalia specialibus non derogant.

Attachment-1_The-Trade-Licensing-Amendment-of-Schedule-Instrument-2017.pdf (5 downloads)

Attachment-2_Ruling-Pharmaceutical-of-Uganda-vs-Attorney-General.pdf (114 downloads)
No latter general Act can prevail over an earlier special Act. Meaning
general things do not derogate from special things. See Eaton Towers
Uganda Limited v Attorney General & Jinja Municipal Council Misc.
Cause No. 84 of 2019
.

This issue is resolved in the affirmative.

What remedies are available to the parties?

An order of Certiorari issues to quash the items 30 and 35 of (Part A)
of the Trade (Licensing)(Amendment of Schedule) S.I No.2 of 2017 is
ultra vires the Trade (Licensing)Act Cap 101 as amended by the Trade
(Licensing)(Amendment) Act No. 28 of 2015 and National Drug Policy
& Authority Act Cap 206.

The applicant’s members are not liable to pay for trade license fees in
respect of their pharmacies and drug stores pursuant to item 30 and
35 of Part A of the Trade (Licensing) (Amendment of Schedule)
Instrument No. 2 of 2017.

This application is allowed with no order as to costs (Each party to
bear its costs).

I so order

Dated, signed and delivered by email at Kampala this 8th day of May 2020

Hon. Justice Ssekaana Musa.”

The issue

On 13th January 2017, the Amelia Kyambandde (MP), Minister of Trade, Industry, and Cooperatives, issued Statutory Instruments 2017 No.2, the Trade (Licensing) (Amendment of Schedule) Instrument 2017, under Section 30(3) of the Trade Licensing) Act, Cap. 101). The Instrument amended the Principal Act, by substituting for Part A and part C of the Schedule. The new Amendment of Schedule introduced new businesses or traders that are required to pay trading licenses.

Some of the new businesses, traders, or institutions required to pay annual license included (i) Legal firms (number 17 on the schedule), (ii) Auditors account. Tax consultants (number 18 on the schedule), (iii) Surveyors, engineers, valuers (number 19 on the schedule), (iv) health centre ( 29), pharmacy (30); (v) Clinic (34) and (vi) Drug store (35) to mention but six. The Amendment schedule lists 113 business or trade enterprises (see Attachment 1).

In 2017, Uganda Law Society filed a case in the High Court, Civil Division (Uganda Law Society v Kampala Capital City Authority and Attorney General), Misc. Cause No. 423 of 2017) seeking to squash the requirement of the Trade Licensing (Amendment of Schedule) Instrument No. 2 of 2017 which required law firms to pay annual license to trade. Two years later, in 2019, the Pharmaceutical Society of Uganda (PSU) filed a case in the High Court, Civil Division (Pharmaceutical Society of Uganda vs Attorney General), Misc. Cause No. 260 of 2019.  In the latter case, the applicant sought judicial review under rule 3 of the Judicature (Judicial Review) Rules, Section 98 of Civil Procedure and Section 36 of the Judicature Act, seeking five specific judicial review reliefs and orders including the following two, thus:

  1. An Order of Certiorari quashing the provisions of the Trade
    (Licensing)(Amendment) Act, 2017 and the Licensing fees
    indicated in item 30 and 32 of Part A of the schedule to the Trade
    (Licensing) (Amendment of Schedule)Instrument SI No. 2 of 2017
    on the basis that they make it mandatory for the applicant
    members to pay licensing fees to both Municipality and National
    drug Authority which imposes an unnecessary financial burden on
    the applicant.
  2. A permanent injunction and an Order of Prohibition, prohibiting
    and/stopping the respondent and/its representatives, local
    authorities or persons acting on their behalf from enforcing the
    provisions of the Trade (Licensing)(Amendment) Act, 2017 and the
    Licensing Fees indicated in Item 30 and 32 of Part A to the Trade
    (Licensing)(Amendment of Schedule) Instrument No. 2 of 2017.

For the other reliefs and orders sought, see Attachment 2, the detailed ruling by Hon. Justice Ssekaana Musa.

The court ruled in favor of the applicant, with exception as to the costs which each party to bear its costs.

In a similar development, writing on his Facebook post, the former Uganda Law Society President, Mr. Francis Gimara, posted thus:

The Civil Division Court in the case of ULS v KCCA & AG, Misc. Cause No. 423 of 2017, has quashed the requirement of the Trade Licensing (Amendment of Schedule ) Instrument No. 2 of 2017 which purported to require law firms/advocates already licensed annually to also seek a further license to trade from the town clerk of a municipal council. Importantly, in the Obiter dictum, Justice Ssekaana Musa, advised of the need for rulemaking bodies to always undertake consultations with stakeholders before making such rules. In his words “The Administration is not always the repository of ultimate wisdom; it learns from suggestions made by outsiders and often benefits from that advice”.

This finally marks the end of the cases in Court filed during our tour of duty at ULS. I remain thankful to the previous council, the current council, and the secretariat for following up on this matter keenly. Allow me to thank MMAKS Advocates for doing this case probono. This group and many others understand the personal role they have in building a strong and independent Bar. We always win when we work constructively. A big kudos to them.

This also means a big win for the Uganda Law Society.

My take and insights

  1. Many professional bodies, like Engineers, Medical Doctors, Accountants, and Tax Consultants are already required to pay membership fees and licenses by their respective professional bodies. Their circumstances and context are the same as the Lawyers and Pharmacists. We see many more court petitions following the successes registered thus far and they provide precedence.
  2. Members of professional bodies ask Secretariat to justify the annual membership fee payments. The petitions by the Pharmaceutical Society of Uganda and Uganda Law Society provide a good example. Leaders in other professional bodies must learn and make timely interventions to protect their members from such double licensing or taxation scenarios.
  3. For effective management and specifically accountability for collected revenue through licenses, ALL license schedules should also provide for the specific causes/ projects the amounts collected would be applied for example towards public transport or innovations fund in the ease of doing business like smart city project implementations or traffic management. Such a practice would improve compliance as licensees can see the results of their payments.
Attachment-1_The-Trade-Licensing-Amendment-of-Schedule-Instrument-2017.pdf (5 downloads) Attachment-2_Ruling-Pharmaceutical-of-Uganda-vs-Attorney-General.pdf (114 downloads)

Copyright Mustapha B Mugisa, 2020. All rights reserved. 

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