Benar Technical Services Limited v National Curriculum Development Centre (Civil Suit 396 of 2013) [2025] UGCommC 18 (17 January 2025)

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) CIVIL SUIT NO. 396 OF 2013 BENAR TECHNICAL SERVICES LIMITED ::::::::::::::::::::::::: PLAINTIFF** 10 **VERSUS NATIONAL CURRICULUM DEVELOPMENT CENTRE :::::: DEFENDANT BEFORE: HON. LADY JUSTICE PATIENCE T. E. RUBAGUMYA**

#### **JUDGMENT**

#### Introduction

15 The Plaintiff filed this suit against the Defendant for breach of Contract, recovery of UGX 173,885,672/= (Uganda Shillings One Hundred Seventy-Three Million Eight Hundred Eighty-Five Thousand Six Hundred Seventy-Two Only), being the value of the extra work done by the Plaintiff for the Defendant, VAT of UGX 31,299,421/= (Uganda Shillings Thirty-One 20 Million Two Hundred Ninety-Nine Thousand Four Hundred Twenty-One Only), general damages and costs of the suit.

### Background

The facts constituting the Plaintiff's claim are that; on 5th October, 2011 the Defendant invited bids using the restricted bidding method of 25 procurement for the performance of ground leveling and landscaping of its land at Kyambogo in Kampala District. The Plaintiff was awarded the Contract and on 5th January, 2012 both parties signed the same wherein the contract price was stated to be UGX 116,609,317/= (Uganda Shillings One Hundred Sixteen Million Six Hundred Nine Thousand Three Hundred

- 5 Seventeen Only). The Plaintiff embarked on the performance of the Contract however, during the course of execution of the works, it realized that the Bill of Quantities had been under measured and as such it was required to do more work at an extra cost and labour. This discovery was brought to the attention of the Defendant and the Plaintiff requested for - 10 verification and new drawings to reflect the actual work to be performed. The Defendant refused to carry out the verification on the pretext that the Contract was signed as a lump sum Contract and not an admeasurement Contract yet, in the Bill of Quantities, the Contract was indicated as an admeasurement Contract. As a result of the Defendant's failure to carry 15 out the verification, the Plaintiff carried out its own measurements and engaged a quantity surveyor who confirmed that indeed the Plaintiff had done extra works than what was included in the Bill of Quantities. As a - result of the misrepresentation in the Bill of Quantities, the Plaintiff ended up executing extra works valued at UGX 173,885,672/= plus VAT of 18% 20 which the Defendant has refused to pay hence this suit.

In its written statement of defence and counterclaim, the Defendant did not dispute the execution of the Contract but rather the type. It contended that the parties signed a lump sum Contract in respect of works for 2.366 hectares. The Defendant further contended that before the execution of 25 the contract, the Plaintiff had an opportunity to visit the site and that therefore, its failure to acquaint itself with the nature and scope of the works to be executed does not entitle it to extra payment due to lack of knowledge, diligence or professionalism.

Also, that the Plaintiff failed to accomplish its obligations even after 30 seeking several extensions which led to a mutual termination of the Contract after several meetings.

- 5 In its counterclaim, the Counterclaimant/Defendant sought special damages of UGX 30,000,000/= (Uganda Shillings Thirty Million Only), general damages for breach of contract and the inconvenience caused, interest and costs of the suit and the counterclaim. The basis of the above claims was that the Counter Defendant/Plaintiff was slow in executing the 10 works and even failed to finish them in accordance with the Contract despite it being added more time on several occasions. That due to the Counter Defendant's poor workmanship, the Counterclaimant had to incur more costs in redoing the stone pitching of the compound, ground - 15 In reply to the counterclaim, the Counter Defendant reiterated its pleadings and further averred that it performed the works to completion as per the Contract terms and that therefore, it is entitled to payment for the extra works done. In rejoinder to the Counter Defendant's reply; the Counterclaimant also reiterated its averments and emphasized that the 20 Counter Defendant was aware that the nature of the Contract entered into was a lump sum Contract and that neither did it fully perform its contractual obligations nor was it under any contractual obligation to

leveling, planting grass and other vegetation.

execute works outside the Contract.

#### Representation

25 The Plaintiff was represented by Learned Counsel Lawrence Tumwesigye of **M/s Tumwesigye, Baingana & Co. Advocates,** while the Defendant was represented by Learned Counsel Wante Elijah of **M/s Wante & Co. Advocates**.

## 5 The Hearing

At the hearing, the suit proceeded by way of witness statements. The Plaintiff presented two witnesses: Mr. Bananuka Innocent Bende (**PW1**), the Plaintiff's Managing Director and Mr. Sendowoza John (**PW2**), the Plaintiff's overall Foreman.

10 The Defendant presented three witnesses: Mr. John Habiyaremye (**DW1**), the Defendant's Administrative Secretary; Mr. Nicholas Tibenda (**DW2**), an Executive Officer of the Defendant and Mr. Livingston Rugasira (**DW3**), the Defendant's Procurement Officer.

All the witnesses were duly cross-examined and re-examined. The parties 15 also adduced documentary evidence contained in their respective trial bundles. Both Counsel were directed to file their written submissions, which they did and the same have been considered by the Court.

# Issues for Determination

- 1. Whether the Contract entered into by the Plaintiff and the Defendant 20 was a lump sum or admeasurement Contract? - 2. Whether the Bill of Quantities presented by the Defendant to the Plaintiff was under measured? - 3. Whether the Plaintiff is entitled to the payment for the extra work done in execution and completion of the Contract? - 25 4. Whether the Defendant is entitled to any special damages claimed in the Counterclaim? - 5. What remedies are available to the parties?

# 5 Issue No. 1: Whether the Contract entered into by the Plaintiff and the Defendant was a lump sum or admeasurement Contract?

#### Plaintiff's submissions

Counsel for the Plaintiff submitted that the bidding document that was issued to the Plaintiff, **EXP.2**; contained fundamental terms of the 10 procurement Agreement and that Section 8 of the Special Conditions of Contract clearly stipulates that the Contract was an admeasurement Contract. That upon being awarded with the Contract, the Plaintiff signed the Agreement which stated that the Agreement was a lump sum Contract with a specific contract sum of UGX 116,609,317/=. That the Plaintiff's 15 representatives did not notice these changes.

Counsel then contended that the insertion of the word lump sum instead of admeasurement in the Agreement was illegal, unlawful and had no effect on the whole Contract. Further, that since the Defendant classified the Agreement and part of the documents that form the Contract under 20 Section 2.5 of the bidding document, then its contents should not

substantially differ from the contents of the other documents.

Counsel further contended that the essence of the Agreement was merely to stipulate the simpler terms relating to the mode of execution of the Contract, such as when the contractor is to commence, the duration of the

25 project, when and how the contractor is to be paid; otherwise, that the other important terms were already incorporated in the bidding document and other documents, hence the type of Contract in this case was admeasurement and not lump sum.

5 In conclusion, Counsel submitted that the altering of the fundamental terms of the Agreement at the signing level was unlawful and did not affect the terms of the Contract already in existence and therefore, the Contract was an admeasurement Contract.

# Defendant's submissions

- 10 In reply, Counsel for the Defendant contended that the Plaintiff and the Defendant entered into a lump sum Contract as per the Contract dated 5th January, 2012 reflected in **EXP.4.** That under the Special Conditions of Contract, the Agreement specifically shows that the Contract is a lump sum Contract. - 15 That the reference to admeasurement in the Standard Bidding Document, **EXP.2** should be treated as an invitation to treat as is in the law of contract, and that the final Contract signed by the parties clearly stated that it was a lump sum Contract. Counsel further submitted that **PW1**, the Plaintiff's Managing Director, a literate person, signed the Contract on - 20 behalf of his Company and must have understood the terms of the Contract before he signed them and that therefore, the contention that the Plaintiff's Managing Director did not notice whether he signed a lump sum or an admeasurement Contract is a lie. Further, that it is true that the Contract is constituted by several documents including the Agreement but - 25 the Agreement takes priority.

In conclusion, Counsel submitted that the Contract entered into between the Plaintiff and the Defendant is a lump sum Contract.

Submissions in rejoinder

- 5 In rejoinder, the Plaintiff's Counsel reiterated his submissions and added that a procurement Contract, like the instant one, is a specialized Contract that is not solely regulated by the general law of contract but also by the statutory provisions of the Public Procurement and Disposal of Public Assets Act which means that most of the terms of a procurement Contract - 10 if not all are implied by the said law which law sets out the form, nature and characteristics of the said Contract.

Based on the above, Counsel argued that whereas the terms of a general Contract may be gathered from the Contract documents (the executed Agreement), the terms of a public procurement Contract are gathered from

15 all the documentation arising out of the entire procurement process. He reiterated that the Contract was an admeasurement Contract.

# Analysis and Determination

It is trite law and as provided under **Section 101(1) of the Evidence Act Cap. 8**, whoever desires any Court to give judgment as to any legal right 20 or liability dependent on the existence of facts which he or she asserts must prove that those facts exist. (See also **Sections 102, 103** and **104** of **the Evidence Act** and the case of *John Bwiza Vs Patrick Yowasi Kadama Court of Appeal Civil Appeal No.35 of 2011*). The standard of proof, is on the balance of probabilities.

25 Having carefully perused the Court record, I have considered the pleadings of both parties, submissions, the law and the evidence adduced, in resolving this matter. I have also cautioned myself since I did not handle the trial of the matter, I was unable to observe the demeanour of the witnesses.

- 5 The case before me is that on 5th January, 2012, the Plaintiff and the Defendant entered into a Contract for ground levelling and landscaping of 2.336 hectares of land for a contract price of UGX 116,609,317/= as portrayed in **EXP.4.** The Contract was based on the fact that the Plaintiff's bid was evaluated as the best. From the pleadings and submissions, the - 10 Plaintiff commenced the work but during execution, it realised that the Bill of Quantities had been under measured and hence it was to do more work than what was agreed upon. That it notified the Defendant of its discoveries and requested a variation but the Defendant objected contending that the parties had signed a lump sum Contract. - 15 The Plaintiff disputed the Defendant's allegations arguing that the Contract was admeasurement as per the bidding document **EXP. 2** which contained most of the fundamental terms of the Contract. That Section 8 of **EXP.2** clearly stipulated that this Contract was admeasurement. - To determine the nature of the Contract that was executed by the parties 20 herein, this Court has to resolve whether the Contract terms inserted in the Agreement **EXP.4** override the Contract terms contained in the bidding document **EXP.2** and whether there was a *consensus ad idem* in signing the said Contract. This also requires the interpretation of the relevant provisions of the **Public Procurement and Disposal of Public Assets Act,** - 25 **2003, as amended in 2011** (**PPDA Act**) that was in operation at the time, together with the Regulations thereto.

**Section 55 of the PPDA Act** provided that all public procurement and disposal shall be carried out in accordance with the rules set out in this part of the Act (Part V), any regulations and guidelines made under this 30 Act. 5 The above provision was emphasized by the Supreme Court in the case of *Galleria in Africa Limited Vs Uganda Electricity Distribution Company Limited SCCA No. 08 of 2017,* when it stated that:

"*The provisions cannot be directory merely. They are for all purposes and intents mandatory and noncompliance with them* 10 *makes the proceedings fatal. Procurement and Disposal activities are processes; one cannot move to another stage of the processes without fulfilling the first one.*"

#### **Section 3 of the PPDA Act** defined a contract as:

"*An agreement between a procuring and disposing entity and a* 15 *provider, resulting from the application of the appropriate and approved procurement or disposal procedures and proceedings as the case may be, concluded in pursuance of a bid award decision of a Contracts Committee or any other appropriate authority*."

#### To that, **Section 76 of the Act,** provided that;

- 20 *(1) For the purposes of this Act, an award decision is not a contract* - (3) *An award shall be confirmed by a written contract signed by both the provider and the procuring and disposing entity only after the conditions set out in subsection (2) have been fully satisfied*. - 25 From the analysis of the above provisions and the authorities thereto, the PPDA Act specifies that an award has to be confirmed by a written contract signed by both parties.

Therefore, a Contract of procurement is formed at the time of signing the Agreement and this Contract takes priority.

5 As stated by the Court in the case of *Galleria in Africa Limited Vs Uganda Electricity Distribution Company Limited***,** *(supra)*, the provision for a written contract is an indication that without it, the obligations of each party have not been spelt out and if the party proceeds to implement, the implementation will be premature. Therefore, in my 10 considered view, a written contract ought to reflect each parties' expectations from the other by specifying their obligations.

In the instant case, during the procurement process, the bidding document (**EXP.2)** that was given to the Plaintiff showed that the Contract was an admeasurement Contract. However, according to the Contract that

15 was signed by both parties (**EXP.4**) dated 5th January, 2012, the Plaintiff and the Defendant executed a lump sum Contract for provision of ground levelling and landscaping work on the Defendant's land by the Plaintiff measuring approximately 2.336 hectares. Under the Special Conditions of Contract attached to the Agreement, **clause 2.3** also plainly and clearly 20 stipulated that the Contract was a lump sum Contract.

Though Counsel for the Plaintiff argued that the Plaintiff was unaware that the Contract was a lump sum, **PW1,** the Plaintiff's representative during

cross examination, testified that*:*

*"Whereas it was an admeasurement Contract as written in the bidding* 25 *document, during the signing, the Head of Procurement told us that they had made it a lump sum because they wanted to pay it as one without advance payment."*

5 **PW1** confirmed that he signed a lump sum Contract even though the bidding document stated that it was an admeasurement Contract with the Bill of Quantities.

**PW1** also testified that he had been put to notice before signing by the Head of Procurement, whom he did not name but described as senior, and 10 that he believed the reason the senior gave, which is why he signed the

**DW3**, the Defendant's Procurement Officer confirmed **PW1's** testimony when he disclosed that after the Contract award, there was an observation by the entity about the error in the bidding document hence the best-15 evaluated bidder who had been awarded the Contract, was invited and taken through the Contract; given the draft and he read through. **DW3** further stated that **PW1** was informed of the error in the bidding document, that the Contract was meant to be a lump sum Contract. The Plaintiff's knowledge of the alleged error and its waiver are crystallized under **EXP.6**/**EXD.25**, the minutes of the meeting that occurred on 5th 20 September, 2012 which are not contested by the Plaintiff. According to the minutes, during the meeting **PW1** was asked why he went ahead to sign

- the Contract well knowing that it was indicating a different Contract than what had been indicated in the Bill of Quantities and he gave no answer. - 25 In my view, since the Plaintiff signed the Contract and without having pleaded and adduced any substantial evidence of any vitiating factors, the Plaintiff is bound by the terms of the Agreement dated 5th January, 2012. Having found as above, it is my finding that the agreement executed between the parties was a lump sum Contract and the Plaintiff signed the 30 same with knowledge that it was a lump sum Contract.

Contract.

5 Therefore, the Agreement entered into by the Plaintiff and the Defendant was a lump sum Contract.

## Issue No. 2: Whether the Bill of Quantities presented by the Defendant to the Plaintiff was under measured?

#### Plaintiff's submissions

- 10 Counsel submitted that the contract price was UGX 116,609,317/= which would be adjusted with the changes in the Bill of Quantities as per **EXP.4.** Counsel further submitted that according to **clause 38.1** of the bidding document, if the final quantity of the work done was different from the quantity in the Bill of Quantities by more than 25% provided the change 15 exceeds 1% of the initial contract price, the Project Manager was to adjust the rate to allow for the change. To that end, Counsel contended that when - the Plaintiff detected the discrepancy in the quantity of the work on the ground and the estimates in the Bill of Quantities, he informed the Defendant however, the Defendant ignored the requests and insisted that - 20 the Contract was lump sum.

Counsel further submitted that the Plaintiff was made to execute works covering 23360m2 instead of 8498.3m2 stated in the Bill of Quantities, which was used to calculate the initial contract price of UGX 116,609,317/=; meaning that the extra work done covered 14861.7m2 25 which is equivalent to UGX 203,924,634/=.

#### Defendant's submissions

Counsel submitted that there was no under measurement in the Bill of Quantities presented by the Defendant to the Plaintiff. That also, the

- 5 Plaintiff did not clearly indicate or prove the alleged under measurement in their evidence nor was credible evidence of an expert or competent person adduced to prove the under measurement. That the Plaintiff like all other bidders, was offered an opportunity to inspect the site before bidding and **PW1** in his evidence admitted that they inspected the site and - 10 were satisfied with what they saw on the ground.

Counsel reiterated that the Contract between the parties was lump sum, which meant that the contract price was fixed and the scope of the work known, as was stated in the Agreement. That much as Bills of Quantities are relevant considerations in lump sum Contracts, they are not crucial in

- 15 determining the contract price because it is fixed unlike admeasurement contracts where the agreed rates and prices in the Bill of Quantities and the actual work done determine the actual total price to be paid. In conclusion, Counsel for the Defendant submitted that there was no under measurement in the Bill of Quantities provided to the Plaintiff. - 20 Plaintiff's submissions in rejoinder

Counsel for the Plaintiff rejoined contending that whereas the Agreement and the bidding document stipulated the quantity of the work under the Contract to be 2.336 hectares (approximately 23360m2; the Bill of Quantities calculated 8498.3m2. That the discrepancy between the two 25 figures is what constitutes extra works which were never paid for because the only money that was paid was the initial contract price calculated on the basis of the under measured Bill of Quantities which set the quantity of work at 2.336 hectares.

#### 5 Analysis and Determination

contracted for.

I have perused the Bill of Quantities (**EXP.3)** attached to the bidding document and noted the rates therein and the indication of the contract price of UGX 111,056,492/=which was inclusive of VAT of 18%. The major contention is that there were discrepancies between the area and volume 10 presented in the Bill of Quantities and on the ground, which required verification and that the Plaintiff did extra work than what it was

It was **PW1** and **PW2's** evidence which was confirmed by the Defendant's witnesses that prior to the Plaintiff's bid submission; the Plaintiff inspected 15 the site. **PW1** contended that when they inspected the site before submitting their bid, he was not required to quantify the volume of the work that was supposed to be carried out but that the work was for a quantity surveyor appointed by the employer/Defendant.

**PW1** further disclosed that the Plaintiff received the payment of the 20 contract price in the lump sum Agreement as per **EXP.4**. **PW1** also confirmed that the scope/acreage as per **EXP.4** was 2.336 hectares, but that during execution of the works, they realized that whereas 8,000 square meters had been declared in the Bill of Quantities, the actual area was 21,142 square meters, which meant that the Bill of Quantities in the 25 bidding document had been under measured with a difference of 13,000 square meters. In evidence, the Plaintiff only adduced **EXP.5**, a report by Mr. Charles Odongo a quantity surveyor. This was contested by the Defendant. According **EXP.5**, Mr. Charles Odongo stated that:

- 5 *"As a way forward, I recommend that both parties engage the services of a Certified/Registered Land Surveyor to determine the actual areas and volumes of work executed for the Final Account statement before resorting to Court."* - In the foregoing, **EXP.5** was not conclusive and cannot be relied on to 10 determine the discrepancy which speaks to the alleged extra works undertaken by the Plaintiff. According to the minutes of the meeting that took place on 13th December, 2012 **EXD.27** which was attended by the Plaintiff's lawyers – Mr. Felix Ampaire Mutungi of M/s Byarugaba & Co. Advocates, he informed the attendees that: - 15 *"The contractor by assenting to the Contract Agreement, it implied that he had carefully read and understood every clause in the Contract and therefore was bound by it and the legal principle of estoppel applied to the company."*

To that, all the attendees mutually agreed among others;

20 *"That there was no basis for validity in the contractor's claims for payment of purported extra works done and therefore the Centre was not bound to pay Benar Technical Services (U) Ltd any money outside the contract sum."*

Whereas the Plaintiff contended that he did not attend the December 25 meeting, neither **PW1** nor the other Plaintiff's witnesses denied their lawyer's attendance of the meeting*.*

5 Owing to the above, the Plaintiff has not persuaded this Court on a balance of probabilities that the Bill of Quantities presented by the Defendant to the Plaintiff were under measured.

In the premises, Issue No. 2 is resolved in the negative.

# Issue No 3: Whether the Plaintiff is entitled to the payment for the extra 10 work done in the execution and completion of the Contract?

## Plaintiff's submissions

Counsel for the Plaintiff submitted that when the Plaintiff took over the site and started the execution of the works, the Plaintiff realized that he was working on an area that was far much more than what was in the Bill

- 15 of Quantities which is evidenced by the letter dated 30th October, 2012 **(EXD.34)** where the Project Manager pointed out errors on the part of the client but the Defendant not only ignored to address the grievances of the contractor but also pushed for suspension and termination of the Contract. - 20 Counsel submitted that the Plaintiff was issued with a certificate indicating how most of the works had been completed and recommending payment. Counsel further submitted that the contractor executed works covering approximately 2.336 hectares but was paid for executing works covering an area of 8498.39m2, which was less than what it was supposed - 25 to be if the Bill of Quantities had been made for an area of 2.336 hectares.

## Defendant's submissions

Counsel for the Defendant submitted that the Plaintiff is not entitled to payment for the extra works done because the Agreement clearly stated - 5 that the Contract was a lump sum Contract where the contract price and scope of works to be done were specified in the Contract as UGX 116,609,371/= and the works were ground levelling and landscaping of 2.336 hectares of the Defendant's land. - Counsel further submitted that the Defendant never authorized or 10 consented to have any extra works carried out, and the Plaintiff did not adduce any evidence to that effect and that carrying out extra work would have necessitated variation of the Contract in writing, consented to by both parties, and the procedure for variation of the Contract laid down in the General Conditions of Contract should have been followed as per **EXP.4.** - 15 Counsel contended that the claim for extra works by the Plaintiff was unjustified, and consequently, the Contract had to be terminated by mutual consent of the two parties as per the minutes of the meeting held on 13th December, 2012.

# Plaintiff's submissions in rejoinder

20 Counsel submitted that even if the Defendant's argument that the Contract was lump sum was to be allowed, the issue of extra works would arise because the Contract (whether lump sum or admeasurement) was based on the Bill of Quantities on which the contract price was determined.

# 25 Analysis and Determination

As determined in issue No. 1, and the case of *Galleria in Africa Limited Vs Uganda Electricity Distribution Company Limited (supra)*, the provisions and procedures stipulated under the PPDA Act are mandatory.

- 5 The Supreme Court in the above case while disagreeing with the High Court's decision in the case of *Finishing Touches Ltd Vs Attorney General of Uganda Civil Suit No. 144 of 2010*, that procurement can be valid if the provisions of the law are not complied with provided the objectives of the Act are met, stated that: - 10 "*Firstly, the objectives of the Act cannot be met without due regard to the provisions of the law as already stated in this judgment. The provisions of the Public Procurement and Disposal of Public Assets Act are the life engine of its objectives.* - *The provisions in issue are clear. The objectives of the Act for all* 15 *purposes and intents are to achieve fairness, transparency and value for money procurement among others. Therefore, breach of the provisions is not a mere irregularity since it goes to the core of the Act. The wording in S.76 (3) is mandatory so non observance leads to fatality*." - 20 In the instant case, the Plaintiff claims payment for the extra work that it did in the course of execution of the Contract. The Defendant disputed the above payments and contended that the works were unauthorized. The Defendant referred to the resolutions in the meeting held on 13th December, 2012 (**EXD. 27)** wherein the Plaintiff was represented by 25 Counsel Felix Ampaire and it was agreed that: - *(1) That there was no basis for validity in the Contractor's claims for payment of purported extra works done and therefore the Centre was not bound to pay Benar Technical Services (U) Ltd any money outside the contract sum.*

- 5 *(2) To amicably terminate the contract for the employer's convenience in accordance with the provisions of the contract clause 60.2, the termination shall have no extra costs to either party.* - *(3) That the employer utilizes the 10% retention to complete the unfinished works.* - 10 I have considered the evidence adduced by both parties. It is my finding that the work claimed was never proved as resolved under issue No.2. Further, as established by the above provisions, the execution of the extra works that were unproven ought to have been authorized and agreed to by the Defendant but given the evidence by the Plaintiff's witnesses, there was 15 no such authorization from the Defendant.

The testimonies by the Plaintiff's witnesses disclose allegations that the Plaintiff, after notifying the Defendant, proceeded to do work outside the ambit of the Contract measurements. If the said work was ever executed, then, the Plaintiff was also aware that no formal fulfilment of the 20 procurement processes was adhered to. Also, the Plaintiff failed to adduce in this Court any credible evidence of the extra work it did.

In the premises, Issue No. 3 is resolved in the negative.

# Issue No. 4: Whether the Defendant is entitled to any special damages claimed in the Counterclaim?

# 25 Counterclaimant's submissions

Counsel for the Counterclaimant/Defendant submitted that it is entitled to special damages arising out of the Plaintiff's breach of Contract in several ways, including the Plaintiff's failure to complete the works within

5 the stipulated timeframe of 60 days' despite being granted several extensions of time by the Defendant. Further that the works were also substandard.

Counsel submitted that the failure of the Plaintiff to install garden lights, external security lights, car park lights and maintain the compound for a 10 period of one year, all cost UGX 20,000,000/= and the cost of re-doing the stone pitching on the compound cost UGX 10,000,000/=. That therefore, the Counterclaimant is entitled to UGX 30,000,000/= as special damages.

## Counter Defendant's submissions

Counsel for the Counter Defendant submitted that whereas the Defendant 15 counterclaimed against the Plaintiff, special damages arising from uncompleted work, that is, the cost of installing garden lights, external security lights, car park lights and maintaining the compound for 11 months as well as the cost of redoing the stone pitching on the compound all totaling to UGX 30,000,000/=; it should be noted that; the Defendant 20 purported to terminate the Contract by the letter dated 29th January, 2013, **EXD.29**, claiming that the Contract was terminated by mutual agreement of both parties in the meeting of 13th December, 2012; however, that there is no mutual agreement as claimed and the minutes of the said meeting are not signed.

25 Counsel also contended that whereas a certificate was issued showing that according to the performance level by percentage, most of the work had been done except for a few which were to be done in the defect's liability, the undone work was never paid for.

5 Counsel further contended that the Plaintiff could not be held liable for failure to do certain work when it had done work three times more than what had been stipulated in the Bill of Quantities.

### Analysis and Determination

In the case of *Mugabi John Vs Attorney General Civil Suit No. 133 of*

10 *2002*, special damages were defined as damages that relate to past expenses and loss of earnings that arise out of special circumstances of a particular case. In the case of *W. M. Kyambadde Vs Mpigi District Administration [1983] HCB 44*, it was held that the guiding principle is that special damages must be specially pleaded and strictly proved. The 15 evidence can be documentary or otherwise provided evidence is led to prove the special damages so sought. (See also*: Borham-Carter Vs Hyde Park Hotel [1948] 64 TLR*).

It is also stated in the cases of *Gapco (U) Ltd Vs A. S Transporters (U) Ltd CACA No.18 of 2004* and *Haji Asuman Mutekanga Vs Equator* 20 *Growers (U) Ltd, SCCA No. 7 of 1995*, that strict proof does not mean that proof must always be documentary evidence. That special damages can also be proved by direct evidence; for example, by evidence of a person who received or paid or testimonies of experts conversant with matters.

In the matter at hand, though the Counterclaimant pleaded the particulars 25 of the special damages, it did not lead any evidence to guide the Court to quantify the special damages being sought.

In his submissions, Counsel for the Counterclaimant just stated the amount claimed under the special damages for each claim; but did not labour to guide the Court in quantifying as well as proving the same or

5 providing the basis for the claimed amounts. Accordingly, the special damages sought by the Counterclaimant/Defendant are hereby denied.

Issue No. 4 is also answered in the negative.

## Issue No 5: What remedies are available to the parties?

In its plaint, the Plaintiff sought the following remedies;

- 10 a) Recovery of UGX 173,889,872/= plus 18% VAT of UGX 31,299,421/= which the Defendant refused to pay. - b) General damages. - c) Interest on (a) and (b) at 25% per annum accruing from the date of filing the suit until payment in full. - 15 Having determined issues No.2 and 3 in the negative, there is no basis for the determination of the general damages and interest. Therefore, the Plaintiff is not entitled to any remedies sought.

In its counterclaim, the Counterclaimant/Defendant sought the following remedies;

- 20 a) Special damages of UGX 30,000,000/=. - b) General damages for breach of contract and inconvenience caused. - c) Interest thereon at 25% per annum from the time of filing the suit until payment in full.

Having determined issue No. 4 in the negative, the Defendant is not 25 entitled to the special damages.

### 5 General damages

As was held in the case of *Takiya Kashwahiri and Another Vs Kajungu Denis, CACA No. 85 of 2011*, general damages should be compensatory in that they should restore some satisfaction, as far as money can do, to the injured Plaintiff/Claimant. However, the Claimant must lead evidence

10 as to what damage he or she suffered at the instance of the Defendant. Also, as was held in the case of *Uganda Commercial Bank Vs Deo Kigozi [2002] 1 EA 305*, while assessing the quantum of damages, Courts are mainly guided by the value of the subject matter, the economic inconvenience that a party might have been put through and the nature 15 and extent of the breach or injury suffered.

In the matter at hand, Counsel for the Counterclaimant/Defendant did not justify the same and neither was any evidence led to prove the amounts that were claimed. In the premises, I find no basis for the award of general damages. Having held that the Counterclaimant is not entitled to the 20 special damages and general damages, it is also not entitled to the interest sought.

Consequently, both the suit and the counterclaim fail.

#### Costs

As provided for under **Section 27 of the Civil Procedure Act**, **Cap. 282**

25 the costs of any action, follow the cause unless the Court for a good reason orders otherwise. Having held that both the suit and counterclaim fail, I order that the Plaintiff and the Defendant meet their costs of the suit and counterclaim.

- 5 In the premises, the following orders are issued: - 1. The suit is hereby dismissed. - 2. The counterclaim is hereby dismissed. - 3. Each party shall bear its costs of the suit and counterclaim.

It is so ordered.

10 Dated, signed and delivered electronically via ECCMIS this **17th** day of **January, 2025**.

Patience T. E. Rubagumya **JUDGE** 15 17/1/2025