Wakilii

Engineer Investiments Ltd v Attorney General & Anor (HCCS 331 of 2012)

High Court · [2015] UGCOMMC 175 · 2015 Preliminary Objection Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for breach of contract determined on a point of law by agreement of parties
Decision
Preliminary objection dismissed; substantive issue of procurement compliance stayed pending evidence

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that Article 119(5) of the Constitution requiring Attorney General's consent applies only to contracts to which the Government of Uganda is a party or in which Government has an interest. Local government councils are distinct from Government under the Constitution and enjoy decentralised powers under Articles 176 and 180. Kawempe Division (predecessor to KCCA) is a local government council, not Government. The preliminary objection based on Article 119(5) was overruled. The question of whether the contract violated procurement procedures could not be determined without evidence and was stayed pending proof of relevant facts.

Outcome

Preliminary objection dismissed; substantive issue of procurement compliance stayed pending evidence

Facts

On 3 May 2004, the Plaintiff entered into a contract with Kampala City Council and the Ministry of Local Government for solid waste management services in Kawempe Division. The Plaintiff completed the works and was issued a certificate of completion on 17 March 2005. The Defendants paid UGX 30,000,000 in part payment, leaving a balance of UGX 41,312,436. The Defendants refused to pay the balance and demanded a refund, alleging the contract was illegal for non-compliance with procurement procedures and failure to obtain the Attorney General's consent under Article 119(5) of the Constitution. The parties agreed to determine the suit on a point of law.

Issues

  1. Whether the Defendants are in breach of their contract with the Plaintiff?
  2. Whether failure to obtain the consent of the Attorney General under Article 119(5) of the Constitution rendered the contract null and void?
  3. Whether the contract was illegal for non-compliance with the Public Procurement and Disposal of Public Assets Act 2003?
  4. What are the remedies available to the aggrieved party?

Orders

  • Preliminary objection based on Article 119(5) of the Constitution overruled.
  • Point of law regarding compliance with PPDA Act 2003 stayed pending agreement to or adducing of relevant evidence.
  • Costs of the preliminary objection awarded to the Plaintiff.

Rules and key headnotes

Constitutional Law — Attorney General — Article 119(5) — Scope of Application — Distinction Between Government and Local Government
Article 119(5) of the Constitution requiring Attorney General's consent for contracts applies only to contracts to which the Government of Uganda is a party or in which Government has an interest. The word 'Government' in Article 119 means the Government of Uganda (central government) as defined in Article 257, and does not include local government councils established under Article 180.
Constitutional Law — Local Government — Decentralisation — Devolution of Powers — Article 176
The constitutional principle of decentralisation and devolution of powers under Article 176(2) means that local government councils have legislative and executive powers within their jurisdictions and are not subject to the same centralised controls as central government. Local governments may retain their own lawyers or employ district attorneys and are not required to obtain Attorney General's consent for their contracts under Article 119(5).
Civil Procedure — Determination on Point of Law — Order 6 Rule 28 — Requirements for Determination Without Trial
For a suit to be determined on a point of law under Order 6 rule 28 of the Civil Procedure Rules, the point of law must be capable of being decided fairly and squarely on facts that are agreed or not in issue on the pleadings. Where material facts remain in controversy, the point of law cannot be determined without evidence and must await trial.
Administrative Law — Public Procurement — Retrospective Application of Regulations — Local Government Regulations 2006
The Local Government (Public Procurement and Disposal of Public Assets) Regulations 2006 have no retrospective effect and cannot be applied to invalidate a contract executed in 2004 before the regulations came into force.

Legislation cited (23)

Cases cited (16)

  • Behange v School Outfitters (U) Ltd (2000) 1 EA 20
  • United Building Services Ltd v Yafesi Muzira t/a Quick Set Builders and Company (HCCS No. 154 of 2005)
  • Finishing Touches v Attorney General (Civil Suit No. 144 of 2010)
  • Mukasa Anthony Harris v Dr Bayiga Michael Philip (Election Petition Appeal No. 18 of 2007)
  • Nabro Properties Ltd v Sky Structures Ltd and Two Others (2002) 2 KLR
  • Makula International Ltd v Cardinal Nsubuga and Another (1982) HCB 11
  • Eladam Enterprises Ltd versus SGS (U) Ltd, SGS (K) Ltd, Societe General De Surveillance (SA)
  • Mark Foley v United Africa Company Ltd [1961] (PC)
  • Kisugu Quarries v Administrator General (1999) 1 EA 158
  • Uganda Broadcasting Corporation v SINBA (K) Ltd & Others (CACA No. 12 of 2014)
  • Clear Channel Independent Uganda Ltd v Public Procurement and Disposal of Public Assets Authority (HCMA No. 380 of 2008)
  • Nsimbe Holdings Ltd v Attorney General and Another (Constitutional Petition No. 2 of 2006)
  • Ahmed Ibrahim Bholm v Car and General Ltd (CA No. 12 of 2002)
  • Anold Brooklyn & Co v Kampala Capital City Authority and the Attorney General (Constitutional Petition No. 23 of 2013)
  • NAS Airport Services Ltd v Attorney-General of Kenya [1959] 1 EA 53
  • Everett v Ribbands [1952] 2 QB 198

Full judgment

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

Engineer Investiments Ltd v Attorney General & Anor (HCCS 331 of 2012) [2015] UGCommC 175 (15 December 2015)
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.