Wakilii

Mulago Hill Diagonostics Limited v National Water & Sewerage Corporation (Civil Appeal 38 of 2022)

High Court · [2024] UGHCCD 73 · 2024 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from the decision of the Public Procurement and Disposal of Public Assets Appeals Tribunal
Decision
Appeal dismissed; Tribunal decision affirmed

Observed later treatment

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Holding

The High Court dismissed the appeal and upheld the PPDA Tribunal's decision to affirm cancellation of a public procurement process. Held that under section 75(1) of the PPDA Act 2021, a procuring entity has power to cancel a procurement process before contract award, and that the Tribunal properly exercised its review powers under sections 91K and 91L. The court cannot compel an entity to continue a procurement process in which it has lost interest, as this would violate the doctrine of freedom of contract under section 10 of the Contracts Act. The Tribunal's discretionary refusal to award costs was not interfered with.

Outcome

Appeal dismissed; Tribunal decision affirmed

Facts

On 10 December 2021, the Respondent published bids for the supply of Hatch Chemical and Reagents. On 25 March 2022, Palin Corporation Limited was declared the best evaluated bidder. The Appellant applied for administrative review. On 7 April 2022, the Respondent communicated that the procurement process had been cancelled following the Administrative Review Team's recommendation, and that the Appellant's review funds would be refunded. On 4 May 2022, the PPDA Tribunal confirmed the cancellation, holding that it could not compel the Respondent to continue with a procurement process in which it was no longer interested. The Appellant appealed to the High Court, arguing the Tribunal lacked power to cancel the procurement under the 2021 Act and that the process should have continued.

Issues

  1. Whether the Tribunal erred in law when it cancelled the procurement?
  2. Whether the Tribunal erred in law when it failed to order the continuation of the procurement process?
  3. Whether the Tribunal erred in law when it failed to award the Appellant costs?

Orders

  • The appeal is hereby dismissed.
  • The ruling and orders of the Public Procurement and Disposal of Public Assets Tribunal is upheld.
  • No orders as to costs.

Rules and key headnotes

Public Procurement — Cancellation of Procurement Process — Powers of Procuring Entity
Under section 75(1) of the Public Procurement and Disposal of Public Assets Act 2021, a procuring and disposing entity may, on the approval of the Contracts Committee, cancel a procurement process or disposal process at any time before a contract is awarded to the best evaluated bidder.
Freedom of Contract — Compulsion to Contract
Courts do not exist to make contracts for parties but to enforce contracts made by parties. A court cannot force a party to enter into a contract as that would amount to a breach of the doctrine of freedom of contract enshrined in section 10 of the Contracts Act 2010. Similarly, a tribunal cannot compel a procuring entity to continue with a procurement process in which it has lost interest and has lawfully cancelled.
PPDA Tribunal — Powers of Review and Decision-Making
Under sections 91K and 91L of the Public Procurement and Disposal of Public Assets Act 2021, the PPDA Tribunal has power to review decisions of the procuring and disposing entity, take evidence, and make logical conclusions. The legislature's intention was to confer powers on the Tribunal to vary or dismiss the decision of the procuring entity and reach a reasoned decision. It suffices that the Tribunal reached a logical decision; the legislature did not need to categorically state the nature of every decision the Tribunal may make.
Costs — Discretion of Tribunal — Appellate Interference
The award of costs involves judicial discretion which must be exercised on fixed principles according to rules of reason and justice. An appellate court will only interfere with an exercise of discretion on costs where it has been exercised in an arbitrary or illegal manner without due regard for necessary considerations, or with unnecessary factors or mala fide. Where an appellant has not shown arbitrary denial of costs by a tribunal, the appellate court will not interfere with the tribunal's exercise of discretion.

Legislation cited (4)

Cases cited (7)

  • Makula International Limited v Cardinal Nsubuga & Anor (Court of Appeal No. 4 of 1981)
  • Minex Karia v Attorney General (High Court Civil Suit No. 208 of 2022)
  • Kansai Piascon Uganda Limited v Uganda Revenue Authority (High Court Civil Appeal No. 37 of 2021)
  • Minister for Immigration and Ethics Affairs Vs Pochi (1980) 31 ALR 666 at 671
  • Roko Construction Company v Uganda Cooperative Transport Union (Supreme Court Civil Appeal No. 32 of 1997)
  • Amalgamated Bank v Fraga Oil Ghana Ltd & 5 Ors [2012] 48 GMJ 149 C.A
  • Preg Tech Communications

Full judgment

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Mulago Hill Diagonostics Limited v National Water & Sewerage Corporation (Civil Appeal 38 of 2022) [2024] UGHCCD 73 (4 March 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.