[2025] UGHCCD 60

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION)

# CIVIL SUIT NO. 122 OF 2023

K-SOLUTIONS LIMITED ::::::::::::::::::::::::: **.....................................**

#### **VERSUS**

ATTORNEY GENERAL ....................................

#### **BEFORE: HON. JUSTICE SIMON PETER M. KINOBE**

# **JUDGMENT**

#### BACKGROUND:

The suit arises from a procurement conducted by the Ministry of Water and Environment (the defendant's agent) which the plaintiff avers was not in line with the Public Procurement of Disposal and Assets Act and Regulations, and therefore seeks judgment against the defendant for;

- a) A declaration that the defendant's acts omissions comprised in frustrating the plaintiff from seeking remedies under the PPDA act were tortious. - b) A declaration that the defendant is liable to compensate the plaintiff. - c) Special damages of 50,000,000 - d) Loss of expected income if the contract had been awarded to the Plaintiff.

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- e) General damages - f) Aggravated damages - g) Punitive damages - h) Interest of 25 percent per annum on the above - i) Costs of the suit. - j) Any other or alternative relief this Honorable Court may deem fit

The facts of the suit are briefly that;

- a) On the 27th of July 2020, the Ministry of Water and environment floated/advertised a tender for hydro-metric equipment including accessories and installation and for supply of flow measuring equipment and base station and software for Uganda under Lots 1A and 1B respectively. - b) The plaintiff was one of three bidders who submitted bids and participated in the bidding process. - c) When the plaintiff checked with the procurement department of the ministry, it was informed that the procurement had already been concluded and the contract awarded. - d) The best evaluated bidder notice was never put to the plaintiff's attention. - e) The defendant's said acts omissions made it impossible for the plaintiff to pursue remedies under the PPDA laws since by the time they received the notice time had already run out. - f) That the ministry declined to select the plaintiff as the best evaluated bidder yet the plaintiff was the lowest bidder. - g) The ministry's actions caused the plaintiff loss in the form of monies incurred during the bidding process.

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h) The actions of the defendant's agents were fraudulent and intentional.

The defendant denied the plaintiff's claim stating that;

- a) The notice of the best evaluated bidder was displayed for the required duration and the plaintiff was aware of this. - b) That the plaintiff occasioned its own misery by opting to stand aloof from the matter. - c) The bids were evaluated on established criteria and that the plaintiff did not qualify on technical evaluation under Lot 1B and quoted a higher price under Lot 1A - d) That the plaint did not disclose any fraud or actionable negligence. - e) That a claim of lost chance is not tenable in law and that the plaintiff has not suffered any damage since the cost of bid security is consequential to bidding irrespective of the outcome. - f) that the suit be dismissed with costs.

# REPRESENTATION

The Plaintiff was represented by Ibembe Julius while the Defendant was represented by Nakanaba Barbara and Uwizera Franklyn.

# ISSUES FOR DETERMINATION

When this matter was called for scheduling the defendant raised two preliminary points of law. The court found it necessary to deal with these issues before delving into the merits of the matter. The issues that arose from the preliminary objections are,

1) Whether the suit is properly before court

2) Whether the plaint discloses a cause of action

#### DETERMINATION

I have read the submissions of both counsel for the defendant, who is the Attorney General and the plaintiff K- Solutions. I have also had the opportunity of reading the plaint and the defense together with the authorities referred to in the submissions to this preliminary objection.

I note that the plaintiff registered dissatisfaction with regard to the manner in which this matter was being handled, mostly because at the point where it was sent for mediation the same was fixed for hearing. Since I was not the judge at the time I will not make response to the dissatisfaction raised by the plaintiff. I will proceed to issue my ruling in regard to the preliminary objections raised by the defendant. I also note that should the parties have been interested in mediation the parties had over six (6) months to conclude the mediation. Therefore, I find no viable reason to delay this ruling on the basis of a speculative intention not shared by both parties.

I also note that service nowadays may be effected on the Electronic Court Case Management Information System (ECCMIS) especially if both parties to a case are registered and linked to the said case. I therefore do not understand when counsel for the plaintiff alleges that he was not served with the submissions but had access to them on ECCMIS. In today's technological landscape, service has been made simpler, and lawyers are encouraged to embrace trending technologies like ECCMIS to ensure expeditious performance of court directives and statutory obligations with ease for instance, service.

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Court will only interfere and find service on ECCMIS ineffective for sufficient cause for example, the lack of access to the system, not being linked to the system, terrible Internet or unavailability of Internet services, among others.

### The merits

The objections raised by the attorney general are two prone.

- 1. That the suit is improperly before court - 2. The plaint does not disclose A cause of action

### Is the suit improperly before court

The defendant argues that the plaintiff should have exhausted local remedies as provided for by the Public Procurement and Disposal of Public Assets laws before running to court. In its submissions the Attorney General contends that until local remedies are exhausted this court does not have jurisdiction and can only entertain a matter from a Public Procurement and Disposal of Public Assets as an appellate court but not as a court of first instance. The Defendant also argues that in the alternative the plaintiff should have sought a writ of Judicial Review to invoke the supervisory powers of court.

On the other hand, the plaintiff argues that these provisions are only applicable before the contract is awarded and it wasimpossible to access them since the notice had not been brought to its attention until the contract was signed. That the

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provisions of the PPDA act are not mandatory and do not take away courts inherent original jurisdiction to handle such disputes.

I have read the provisions of the Public Procurement and Disposal of Public Assets Act of 2021 as Amendment most specifically Section 91 referred to by both parties. While the defendant claims that this provision is mandatory, the plaintiff alleges the same is not mandatory.

I have found the need to reproduce Section 91I to Section 91M of the Public Procurement and Disposal of Public Assets Act of 2021 as Amendment herein for purposes of clarity and perspective.

# Section 91I

*"Administrative Review by Tribunal*

*(1) The following may apply to the tribunal for review of a decision of a procuring and disposing entity-*

- *a. a bidder who is aggrieved, as specified in section 89 (7) or (8)* - *b. A person whose rights are adversely affected by a decision made by the accounting officer and;* - *c. A bidder who believes that the accounting officer has a conflict of interest as specified in section 89(9)* - (2) The application shall be made - *a. For section 89(7) within 10 working days from the date of receipt of the decision of the accounting officer.*

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- *b. For section 89(8) within 10 days from the date of expiry of the period specified in the section and* - *c. For section 89(9) within 10 days from the date when omission or breach by the procuring and disposing entity is alleged to have taken place.*

*(3) For the avoidance of doubt, the following matters shall not be subject to review by the Tribunal-*

- *a. a decision by a procuring and disposing entity to reject or cancel any or all bids prior to award of a contract under section 75.* - *b. a decision by a procuring and disposing entity to discontinue a procurement of disposal process after receiving submissions from bidders following an expression of interest or a pre-qualification and* - *c. Decision by a procuring and disposing entity to limit the participation of bidders under a preference scheme or a reservation scheme.*

*(4) the Tribunal shall issue a decision within a period of not more than fifteen working days upon receipt of an application for review.*

#### *Section 91L(4) provides*

*the following……………for the avoidance of doubt, a procurement or disposal process shall remain suspended where a bidder appeals to the tribunal against a decision of a procuring and disposing entity"*

#### Section 91 M

Page **7** of **10** *(3) An appeal to the High Court may be made on questions of law only and the notice of appeal shall state the question of law that forms the appeal.*

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- *(4) A procurement or disposal process that is suspended under 91L (4) shall be resumed and shall continue during an appeal to the High Court.* - (5) *The High Court shall hear and determine the appeal and shall make such decisions or orders as it deems appropriate by reason of its decision, including an order affirming or setting aside the decision of the tribunal* and may hold the accounting officer or any person, as may be determined personally liable and award damages to the aggrieved bidder. - (6) A decision of the High court made under this section shall be final and conclusive and shall not be subject to appeal to any other court.

From the foregoing it is clear that the intention of Parliament was to ensure that an aggrieved party had an in house remedy before proceeding to the High Court. The same provisions require an aggrieved party, as is the plaintiff, to make a complaint to the accounting officer and upon failure or dissatisfaction, the same would then proceed to the tribunal for purposes of further interrogation. I agree that the matter would only be properly before court as an appeal and not before. The High Court is the final arbiter on the dispute (see Public Procurement and Disposal of Public Assets Act of 2021 as Amendment). It is also important to note that Section 91 M is instructive that an appeal to the High Court may be made on questions of law only and the notice of appeal shall state the question of law that forms the appeal. The intention of the legislature was that the original jurisdictions in disputes relating to procurement arising from the Public Procurement and Disposal of Public Assets Act of 2021 as Amendment can only come to the High Court by way of appeal on questions of law and not to the High Court as a court of first instance.

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Page **8** of **10**

The aggrieved party can also apply for Judicial Review to invoke the supervisory powers of this court if the procurement or any process of review is conducted in a manner not legally permissible to address any issues of illegality, impropriety among others (See Section 2 of the Judicature (Judicial Review) Rules 2009).

In the case of Smart Protus Magara and 138 Others vs Financial Intelligence Authority HCMA No. 215 of 2018 court stated that

*"Court cannot legislate under the guise of interpretation against the will expressed in the enactment itself. It is not open to the Court to usurp the functions of the legislature. Nor is it open to the court to place unnatural interpretation on the language used by the legislature and impute to it an intention which cannot be inferred from the language used by it by basing itself on ideas derived from other laws."*

I am well cognizant of the case of National Union of Clerical, Commercial & Technical Employees Vs NIC SCCA. No17/1993 (reported) IV KALR 60 where it was stated that it remains a question of court's discretion whether or not to invoke its inherent jurisdiction to disregard a specific provision or procedure provided by the law. Certainly, such discretion is to be exercised judiciously, depending on what would be the demands of justice. In most cases this power can be invoked if there is no remedy provided to an aggrieved party or, where the remedy so provided by the law is not readily accessible to the aggrieved party (see HCMA NO.235 OF 2024 Byaruhanga John Patrick Commissioner Land Registration).

In this case, the plaintiff had an available remedy as provided by law, one that he chose to ignore.

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I agree that since the plaintiff could attain all remedies he seeks through the procedures laid out by the Public Procurement and Disposal of Public Assets Act of 2021 as Amendment, and or the Judicature (Judicial Review) Rules 2009 it would in my view as a general rule be contrary to public policy, and as such an abuse of court process, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under a specific provision of the law to proceed by way of an ordinary action and by this means to evade the procedures laid out by Law (also See O'Reilly v Mackman [1983] 2 AC 237)

I find that the plaintiff filed this suit as a disguised tort for negligence as a means of circumventing clear provisions of law. In essence this suit is an attempt at challenging the decision of the procuring entity.

It is in effect an appeal disguised as a claim for the tort of negligence. Court cannot invoke its inherent powers to aid an errant litigant looking for a remedy that circumvents clear provisions of law.

Because of the foregoing I find that plaint is incompetent and wrongly before court. I therefore dismiss the same with costs to the defendants. Further, I will not delve into the discussion of the preliminary objection as the same abates automatically.

…………………………………………………

SIMON PETER M. KINOBE JUDGE

DATE: 27th May 2025