[2022] UGCommC 173

# **THE REPUBLIC OF UGANDA** IN THE HIGH COURT OF UGANDA AT KAMPALA **COMMERCIAL DIVISION** HIGH CIVIL SUIT No. 198 OF 2016

**BIN-IT SERVICES LTD::::::::::::::::::::::::::::::::::::**

### VERSUS

- 1. KAMPALA CAPITAL CITY AUTHORITY - **2. NABUGABO UPDEAL JV::::::::::::::::::::::::::::::::::::**

BEFORE: HON. JUSTICE CORNELIA KAKOOZA SABIITI

## **RULING ON PRELIMINARY OBJECTIONS**

This is a ruling on preliminary objections raised by the counsel for the $2^{nd}$ defendant, to which counsel for the 1^st defendant associated himself.

The plaintiff herein instituted this suit against the defendants for orders of constitutional redress including economic loss from unlawful creation of exclusive concessions for the business of garbage collection and waste disposal in Kampala, for special and general damages arising from the tort of interference with business contracts committed by the 2^nd defendant with collusion, instigation and encouragement of the 1^st defendant. Unlawful concessions created by the 1^st defendant and granted to a small number of industry players creating unconstitutional monopoly in favour of the $2^{nd}$ defendant.

The defendants filed separate defences to the claims by the plaintiff. when the

matter came up for hearing on the 6^th April 2022, the 2^nd defendant counsel expressed his intentions to raise preliminary objections and court gave directions to parties in which they should file their written submissions. All parties' 2 submissions are on file and I have considered the same in determination of the

same.

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The plaintiff was represented by M/s Byenkya, Kihika & Co. Advocates and the 2^nd defendant by M/s Crane Associated Advocates.

The 2^nd defendant raised two preliminary objections for consideration;

Whether the judgment in Civil Suit No. 297 of 2016: Paul Ndahura T/A $i)$ Bins Kampala Vs Kampala Capital City Authority, Nabugabo Updeal Joint Venture and Kampala Solid Waste Management Consortium in which the same concessionaire agreements were challenged on the same grounds as in this suit was a judgment in rem binding the plaintiff in this matter.

The mootness of the plaintiff's claims relating to the concessionaire $ii)$ contracts in view of the first preliminary objection and the expiry of the said concessionaire contracts.

**Resolution.**

Issue one: Whether the Judgment in Civil Suit No. 297 of 2016: Paul Ndahura T/A Bins Kampala Vs Kampala Capital City Authority, Nabugabo **Updeal Joint Venture and Kampala Solid Waste Management Consortium** in which the same concessionaire agreements were challenged on the same grounds as in this suit was a judgment in rem binding the plaintiff in this matter.

Counsel for 2^nd defendant submitted that the plaintiff alleges that the

concessionaire agreements were unconstitutional and unlawful, having allegedly created a monopoly in the business of garbage collection and disposal in Kampala city and the said agreements trampled upon the plaintiff's right to practise its trade in accordance with Article 40(2) of the Constitution. That in Civil Suit No. 297 Lof 2016 Paul Ndahura T/A Bins Kampala Vs KCCA, Nabugabo Updeal Joint Venture & Anor, identical claims were made before Hon. Justice Ann B. Mugenyi who heard and decided the case. That in the judgment therein, this court

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determined the status of the concessionaire agreements first; that they are not unconstitutional and their enforcement does not infringe anyone's rights to practise their trade or profession under Article $40(2)$ of the Constitution. Second; that the concessionaire agreements did not create any monopoly in the business of solid waste collection and disposal in Kampala city. That the plaintiff's claims are against the same concessionaire contracts.

Counsel submitted that the judgment of this court was made in rem and binds the plaintiff in this matter. Counsel defined a Judgment in rem as a judgment of a court of competent jurisdiction determining the status or the disposition of a thing

as distinct from the particular interest in it of a party to the litigation, as per Harlsbury's Laws of England 4^th Edition Vol. 26 at Page 238. That a judgment in rem binds the whole world including strangers to the litigation.

Counsel further submitted that the plaintiff's attempts to relitigate these claims upsets a well-known principle of stare decisis. That when court faces a legal argument, if a previous court has ruled on the same or a closely related issue, then the court will make their decision in alignment with the previous court's decision. Counsel relied on the case of Attorney General Vs Law Society Constitutional Appeal No. 1 of 2006 and Murisho Shari & Others Vs Attorney General and Others Constitutional Application No. 2 of 2017. That there is no reason for court to depart from its decision on the same claims in respect of the same subject matter, there are no exceptional circumstances for court to pronounce itself differently from its previous decision.

On the other hand, counsel for the plaintiff opposed the above arguments that despite the averments, the defendant does not expressly allege that the suit is barred by Res Judicata. Counsel defined a Judgment in rem relying on Black's Law Dictionary, Bryan A. Garner, Page 847, as a judgment that determines the status or condition of property and that operates directly on the property itself. That neither the first filed nor the current suit concerns determination or

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status of property, there is no dispute over property. Counsel argued that whereas there is no property in contention, the plaintiff was not a party to the proceedings on Civil Suit No. 297/2016 and not bound by judgment in those proceedings.

Counsel relied on the case of Michael Ward & Ors Vs Katharine Anne Savill (2021) EWCA Civil 1378 where court held that the appellants could not rely on declarations made against the alleged perpetrators of fraud for use in ensuing asset tracing claim against an alleged recipient of proceeds of fraud, who was not a party to the earlier fraud proceedings. Because the alleged recipient had not been a party to the earlier proceedings, and the judgment in those proceedings not a judgment in rem.

In Civil Suit No. 297/2016, the order was only intended to take effect against the original plaintiff, Bins Kampala and not any prospective plaintiffs such as Bin It Services Limited. That the case did not determine the interests of Bin It Services Limited, thus can not be binding on Civil Suit No. 198/2016, as this would violate the principles of natural justice and a right to be heard. That the plaintiff is not bound by the decision of this court in Civil Suit No. 297/2016, since it is a stranger to those proceedings.

Counsel for the plaintiff further asserted that even if the defendant were to argue that Civil Suit No. 198/2016 is barred by Res Judicata, the same has not been proved, res judicata does not apply to the current suit. counsel went ahead to discuss the conditions on res judicata, relating them to the facts in this case. That

this court is not bound by the decision in Civil Suit No. 297/2016.

I have intently considered the above arguments by counsel, I have also had an opportunity to read Civil Suit No. 297 of 2016 in depth. I find it expedient to briefly state what both suits are about before I render my stand in this matter. The 2 plaintiff herein sues the defendants mainly alleging unlawful creation of exclusive concessions for garbage collection and waste disposal in Kampala. That

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unlawful concessions created by the defendant and granted to a small number of industry players has resulted into unconstitutional monopoly in favour of the 2^nd defendant in certain Kampala areas known as Zone 5 and 7. That by creating the concessions and resultant monopolies acted in excess of the scope of its legal authority which is restricted only to licencing industry players.

The defendants allege that the 1^st defendant ran an advertisement for private operators under a Public Private Partnership in an open international competitive bidding for collection of solid waste in the City of Kampala. The award for collection of the garbage/solid waste in Zone 5 and 7 was to the 2^nd defendant but the plaintiff and other companies were unsuccessful. That it is the 1^st defendant's duty to create exclusive concessions and zones for garbage collection and cannot be challenged by whoever wishes to do business under its area of jurisdiction.

Whilst in Civil Suit No. 297 of 2016 (Paul Nduhura T/A BINs Kampala Vs Kampala Capital City Authority, Nabugabo Updeal Joint Venture and Kampala Solid Waste Management Consortium. The plaintiff's claim was that he lawfully traded as Bins Kampala whose business is to collect garbage under several contracts with different private individuals within Kampala and 2^nd defendant wrote to him stopping him from collecting garbage in Kampala claiming it had exclusive rights by the 1^st defendant to collect garbage in Zone 5 and 7. That the defendants' actions are illegal, amount to interference with performance of his contracts with private individuals inducing breach of contracts

and an attempt to create an illegal monopoly.

The defendants therein contended the $1^{st}$ defendant (KCCA) in accordance with the law advertised for procurement of services for the collection, transportation and disposal of solid waste in Kampala City in which the $2^{nd}$ and $3^{rd}$ defendants $b$ / $10/5$ emerged winners for specified zones within Kampala city. That the defendant deliberately chose not to participate in the said procurement process.

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The issues before court were; whether the defendants are interfering in the plaintiff's garbage collection business and if so whether the interference is unlawful, whether the plaintiff is lawfully collecting and disposing garbage from Kampala City, whether the concessionaire agreements between the $1^{st}$ , $2^{nd}$ and $3^{rd}$ defendants are lawful and what remedies are available to the parties.

Court held that; the plaintiff failed to demonstrate that the defendants interfered with his business unlawfully. That the concessionaire agreements between the parties were as a result of a procurement process for the provision of solid waste management services initiated by the 1^st defendant by virtue of its responsibility. That plaintiff failed to prove that the concessionaire agreements between the 1^st, 2^nd and 3^rd defendants are unlawful. The suit was dismissed with costs to the defendant.

Basing on the above decision, the defendants counsel herein contends that the said judgment was in rem, and it binds the whole world including non-parties or strangers to the litigation. Counsel also invited court to consider the objections basing on the principle of stare decisis.

According to the Blacks Law Dictionary 9^th Edition at page 919, Judgment in rem is defined as a judgment that determines the status or condition of property and that operates directly on the property itself. The phrase denotes a judgment that affects not only interests in a thing but also all persons' interest in the thing

(emphasis is mine).

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Based on the above exposition, I agree with plaintiff counsel, neither the facts of this case nor the facts that were before court in Paul Nduhura T/A BINS Kampala Vs Kampala City Council & Others(supra) can be said to be on interest in property. The defendant's argument that this was a judgment in rem does not apply to the scenario in this case.

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The Blacks Law Dictionary 9^th Edition at page 1537 defines Stare decisis as "the doctrine of precedent, under which a court must follow earlier judicial decisions when the same points arise again in litigation. It explains that; this doctrine is simply that, when a point or principle of law has been once officially decided or settled by the ruling of a competent court in a case in which it is directly and necessarily involved, it will no longer be considered as open to examination or to a new ruling by the same tribunal or by those which are bound to follow its adjudications, unless it be for urgent reasons and in exceptional cases."

The doctrine of stare decisis was further elucidated in the Supreme Court case of

Attorney General vs Uganda Law Constitutional Appeal No. 1 of 2006, court dealt with a scenario where one panel of the Court of Appeal overturned a precedent set by a previous panel in the court of appeal. Mulenga J. S. C held that; "Under the doctrine of stare decisis, which is a cardinal rule in our jurisprudence, a court of law is bound to adhere to its previous decision save in exceptional cases where the previous decision is distinguishable or was overruled by a higher court on appeal or was arrived at per incuriam without taking into account a law in force or a binding precedent. In absence of any such exceptional circumstances a panel of an appellate court is bound by previous decisions of other panels of the same court.... he further observed that; to permit one panel of the Court of Appeal to overturn a precedent set by another on such pretext as in the instant case, would lead to the antithesis of the doctrine of stare decisis and

would be a recipe for uncertainty, instability and unpredictability of the law that the courts have the responsibility to interpret and apply"

In consideration of the above decision, relating it to the case before me, I am of an opinion that the objections before me are premature, notwithstanding that the earlier decision of Paul Ndahura T/A Bins Kampala Vs Kampala City Council & others (supra) ably discussed the issue of illegality of the concessionaire

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agreements being contested in this case, court gave its reasoning based on the facts and evidence before it. In this matter, court has not had a chance to hear the plaintiff's or defendants' evidence to establish if the two cases are all on fours. There is an underlying issue of monopoly that the plaintiff raises but also, court needs to establish if the plaintiff falls under the authorised private collectors accommodated under Regulation 23 of the Kampala City Counsel Waste **Management Ordinances.** There is need to investigate the licences held by the plaintiff and their applicability. Upon full trial and hearing of evidence from all parties, court will determine on whether this case is akin to the previous case of

Paul Nduhura T/A Bins Kampala (Supra) to adopt the same or it is distinct and there is need for departure.

Both objections are overruled, let this matter proceed for hearing.

It is so ordered


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