Wakilii

ATHWAX Consultatants Limited v Mbarara City Council and Another [2024] UGPPDPAAT 47

Tribunal · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Miscellaneous application arising from Registry Application No. 37 of 2024, seeking contempt orders against respondents for alleged non-compliance with Tribunal orders
Decision
Contempt application dismissed; Tribunal declined to compel respondents to sign contract

Observed later treatment

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Holding

The Tribunal dismissed the contempt application. The Tribunal held that its earlier order permitting the respondent to continue with the procurement was discretionary, not mandatory, because it used the word 'may' rather than 'shall'. The Tribunal found no contempt as the respondents retained discretion whether to proceed. The Tribunal further held it would not compel a procuring entity to enter into a contract merely because a contract award had been made.

Outcome

Contempt application dismissed; Tribunal declined to compel respondents to sign contract

Facts

Mbarara City Council invited bids for consultancy services for road supervision. Two firms submitted proposals: Athwax Consultants Limited (the Applicant) and MBJ Technologies Limited. Athwax was declared the Best Evaluated Bidder. MBJ Technologies filed an administrative review complaint and then applied directly to the Tribunal in Registry Application No. 37 of 2024. The Tribunal struck out that application for lack of jurisdiction and ordered that the Respondent may continue with the procurement to its logical conclusion. The Respondent issued a letter of award to Athwax on 16 September 2024. Athwax signed the contract but the Respondents did not. MBJ Technologies lodged a second administrative review complaint alleging forgery and irregularities. The Respondent suspended the procurement process on 26 September 2024 pending PPDA investigation. PPDA advised the procurement should continue. Athwax filed this miscellaneous application seeking contempt orders against the Respondents for failing to sign the contract and for conducting a second administrative review after the Tribunal had determined the matter.

Issues

  1. Whether the Respondents were in contempt of the Tribunal's orders in Registry Application No. 37 of 2024.
  2. Whether the Tribunal's order that the Respondent 'may continue with the procurement to its logical conclusion' was mandatory or discretionary.
  3. Whether the Tribunal should compel the Respondents to sign the contract with the Applicant.

Orders

  • Application dismissed.
  • No order as to costs.

Rules and key headnotes

Contempt of Court — Requirements for Civil Contempt
To succeed in a civil contempt application, the applicant must prove: (1) that the court issued an order; (2) that the order was served or brought to the notice of the alleged contemnor; (3) that there was non-compliance with the order by the respondent; and (4) that the non-compliance was wilful or mala fide.
Statutory Interpretation — Mandatory versus Permissive Language
The word 'may' is prima facie permissive and conveys that the authority which has power to do an act has an option to do it or not to do it. 'May' unlike 'shall' is not mandatory, although it may acquire a mandatory meaning from the context in which it is used, just as 'shall' may be deprived of its obligatory force and become permissive in the context in which it appears.
Public Procurement — Tribunal Powers — Specific Performance of Contracts
The Public Procurement and Disposal of Public Assets Appeals Tribunal shall not compel a procuring and disposing entity to enter into a contract merely because there has been a contract award. A valid and enforceable contract comes into force only after fulfilling the requirements in section 82 of the Public Procurement and Disposal of Public Assets Act and the procedures in the Public Procurement and Disposal of Public Assets (Contracts) Regulations.

Legislation cited (2)

Cases cited (3)

  • Obon Infrastructure Development Ltd v Mbarara City and MBJ Technologies Limited (Miscellaneous Application No. 1 of 2022)
  • K-Solutions Limited v Ministry of Water and Environment (Miscellaneous Application No. 1 of 2024)
  • Foundation for Human Rights Initiative v Attorney General (Constitutional Appeal No. 3 of 2009)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

ATHWAX Consultatants Limited v Mbarara City Council and Another 2024 UGPPDPAAT 47 (19 December 2024)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.