Nakawa Market Vendors Association Ltd v Kampala Capital City Authority (High Court Civil Suit No. 135 of 2010) [2015] UGCommC 154 (6 May 2015)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

COMMERCIAL DIVISION

HIGH COURT CIVIL SUIT NO. 135 OF 2010

NAKAWA MARKET VENDORS ASSOCIATION LTD::::::::::::::::: PLAINTIFF

VERSUS

KAMPALA CAPITAL CITY AUTHORITY:::::::::::::::::::::::::::::: DEFENDANT

BEFORE HON. JUSTICE HENRY PETER ADONYO:

JUDGMENT:

1. Background:

The Plaintiff is a Limited Company limited company whose address for purposes of this suit is C/orepresented before this court by M/s Semuyaba , Iga & and Co. Advocates, of Plot 65 Buganda road,Road, P.O Box 12387, Kampala. The Defendant is used to be called The City Council of Kampala and is urban authority in Kampala City but now is called Kampala Capital City Authority the urban government authority of Kampala City, the capital of the Republic of Uganda called the Kampala Capital City Authority which was formerly known as the City Council of Kampala.

The Kampala Capital City Authority is an authority incorporated under S.Section 5 of KCCAKampala Capital City Authority Act, Act No. 1 of 2011 of the Laws of Uganda which provides that, there shall be an Authority to be known as Kampala Capital City Authority. S.Section 5 (3) provides thatof which gives the Authority is the governing body ofpowers over the capital City and shall administer the city of which it onadministers on behalf of the Central Government of the Republic of Uganda as by law established.

2. Plaintiff’s Claim:

The Plaintiff’s claim against the Defendant is for a prayer for a declaration that it plaintiff was the rightfully winner won of thea tender to manageto manage Nakawa Market which is in Nakawa Division within the territorial jurisdiction of the Kampala Capital City Authority following its having fully discharging ed all the requirements as prescribed undercontained in thea tender advert which was issued by the Defendant’s predecessor formerly known as the City Council of Kampala which tender Agreement that was awarded on the 26^th day of March 2008. The Plaintiff avers that the defendant failed to honour the tender award to it and for which it is aggrieved and thus seeks the by the defendant‘s predecessor Kampala City Council and an order for the plaintiff toorders of this Honourable Court to compel the Defendant to be allow it ed to manage ,control and maintain the said Nakawa Market. The plaintiff also seeks plus the costs of thise suit.

The facts giving rise to this suit are as follows.defendant denies the allegations labeled against it by the plaintiff and goes on to state that indeed the plaintiff had never won any tender from it to manage, control and maintain the Nakawa market and that its action to take over the market’s management eventually was lawful and justified under the circumstances for it was done to avert possible chaos and loss of revenue as the purported tender award had resulted into a dogged fight between two entities of Nakawa Market Vendors Association and Nakawa Market Vendors Association Limited fighting as to who among them had rightfully won the tender though it agreed that from the documents it had in its possession there was evidence that while the Nakawa Market Vendors Association Limited had participated in the tender process for the management, control and the maintenance of the Nakawa Market, it was Nakawa Market Vendors Association which had been offered the tender yet it had not applied for or even participated in the tender process and there was no contract signed between it and any entity to that effect to warrant it hand over the desired action to the plaintiff or for that matter any entity at all.

1. The plaintiff company was awarded a tender to manage NakawaMarket by City Council of Kampala on the 26^th March 2008.

2. By a letter dated 3^rd April 2008 written by the Plaintiff to the defendant the plaintiff company accepted the tender

3. The plaintiff company paid an advance to The City Council of Kampala of Shs. 42,000,000/= to Stanbic Bank, Lugogo Branch vide receipt No. 0061391 issued by The City Council of Kampala on Account No. 014006091370.

4. In breach of the law and in contempt of court and the plaintiff’s Memorandum and Articles of Association, the defendant has failed to comply with the Court Consent Judgment/Decree/order in H.C.C.S No. 204 of 2008 and have continuously failed to ensure that the said Market is peacefully handed over and managed by the plaintiff company as was ordered by court.

5. The defendant has denied the Board of Directors of the Plaintiff Company and members of the plaintiff company access to the company’s Statutory Records regarding the said tender thereby denying the members of the plaintiff company information and full participation in the running of the said market.

6. In light of the foregoing, the plaintiff company avers that the company Articles and memorandum of Association have been and continue to be infringed upon and the company havesuffered loss and damage for which the plaintiff company shall claim specials general, exemplary and punitive damages.

The defendant acknowledged the plaintiff’s claim vides a letter dated 30^th April 2009.

7. In a letter dated 3/7/2009, The TOWN CLERK wrote to The Senior Principal Assistant Town Clerk Nakawa Division cancelling the above mentioned tender.

The plaintiff shall aver that the actions mentioned herein above constitute contempt of Court and the plaintiff shall claim special, general, exemplary/punitive damages thereof.

3. There was anFacts:

The facts relating to this matter is that a tender aAdvertisement was placed in the New Vision of 16^th day of March, 2007 , a copy of which is on record, in which the Defendant’s predecessor then called the City Council of Kampala invited entities or persons capable of providing certain required services by it. The advert was titled in the paper calling “The Tender for Management Control and Maintenance of Markets in Kampala” and it called for upon The TENDER FOR MANAGEMENT, CONTROL AND MAINTENANCE OF MARKETS IN KAMPALA.

In pursuit to the Tenders Advertisement which were invited from competent firms and or individualsinterested parties to apply for the management,management, control, and maintenance of the following markets in Kampala City and the .

1. Nakawa Mmarket was among the list of markets included in the invitation. According to the publication several conditions were laid down to be fulfilled by any of the intending participants and these included the securing of

2. Nateete market

3. Kamwokya market

4. Nalukolongo market.

On the 18^th April 2007 The Company Plaintiff M/sNAKAWA MARKET VENDORS ASSOCIATION LTD applied for the above-mentioned Tender to the Secretary Contracts Committee Kampala District.

The conditions were very clear as follows,

tendertender documents are at the City Hall infrom the office ifof the Secretary to the Kampala District Contracts Committee at City Hall Room B114A, at a non-refundable fee of Uganda . Shillings s, One Hundred Thousand (Ug. Shs. 100,000/==) (one hundred thousand) per set of documents, that any .

All Companiescompany then currently owing money to the Kampala City Council for running of any of its markets was disqualified from applying will bewith each disqualified.

Each tendertender application must to be accompanied byby the following;-

an original The 2006-2007 income tax clearance certificate in (Original)addition to

a A certified Truetrue copy of an entity’s a certificate of incorporation issued by the Registrar of Companies of the intending participant coupled with .

a A valid trading license for 2007, .

a The postal address and , the physical location of the firm and or /cCompany with a .

bBid security in the form and amount to be specified in the bid document and the t.

The original council receipts issued by the City Council of Kampala issued for for the purchase of the tender documents were purchase purchaseof the documents must be submitted with the. tenderThe completed tender application was documents then to be properly sealed in an envelope clearly marked on top “Tender for the management, control and maintenance of markets “” and addressed” to o:- TThe Secretary Kampala, Kampala District Contracts Committee at, Post .OOffice Box Number 7010, Kampala with .t he successful party required to eventually execute an agreement with the City Council of Kampala for the Management, Control and Maintenance of a particular market for which it has been chosen.

The Plaintiff company Company M/s NAKAWA MARKET VENDORS ASSOCIATION LTD was the rightful winner of Nakawa Market Vendors Association Ltd, among many other entities, responded to the said advert for on the 18^th day of April 2007 it submitted its tender application. The tender processing went on and eventually upon completion the defendant the tender to manage NakawaMarket having fully discharged all the requirements as prescribed under the tender Advertisementawarded a tender for the Management, Control and Maintenance of Nakawa Market to M/s Nakawa Market Vendors Association of P.O. Box 700 Kampala on the 26^th day of March, 2008 by its letter dated the 26^th day of March, 2008 referenced as CR103/7 signed on its behalf by one Muwonge –Kewaza on behalf of the Town Clerk. In that document the warded was required to fulfill further conditions which included the undertaking to manage and control the Nakawa Market at a contract sum of Uganda Shillings Two Hundred Fifty Five Million Six Hundred Thousand Only (Ug. Shs. 255,600,000/=) per annum inclusive of VAT and to also present a performance security in form of a bank guarantee equivalent to 7% of the contract sum before the signing of an agreement for the running of the market. The successful applicant was also required to indicate in writing within a period not exceeding seven (7) days from the date of that letter whether the offer was acceptable to the firm. Nakawa market Vendors Association of P.O. Box 700 Kampala by its letter dated 3^rd day of April 2008the signified its acceptance of the offer with the letter having been signed by two persons namely Mr. Paddy Sentamu Joseph as its chairman and Mr. Rugumayo Baguma, its secretary. This letter is on the court record. Thereafter a payment into the Defendant’s bank account No. 014006091370 held at Stanbic Bank (U) Limited Lugogo Branch the sum of Shs. 42,000,000/= stated to be an advance management fees for which a receipt No. 0061391 was made by Nakawa Market Vendors Association Limited by the Defendant on a date in April 2008. This document is also on record as part of the plaintiff’s documents. On the 17^th day of April, 2008 the Tropical bank issued a contract performance bond titled “Performance Bond for the Management and Control of Nakawa Market under Contract No. KDCC 8/36/2007 addressed to The Head of Procurement and Disposal Unit, Kampala City Council, P.O. Box 7010 Kampala irrevocably and independently guaranteeing to pay the sum of Uganda Shillings Seventeen Million Eight Hundred Ninety Two Thousand Only (Ug. Shs. 17,892, 000/=) against the failure of the therein stated entity who having been offered the contract to manage the Nakawa Market failing to perform the said contract.

No sooner than this being done, a serious wrangle ensued in regards as to who was the rightful awardee of the contract to manage, control and maintain the Nakawa Market. This conflict arose between the Plaintiff on the one and a group calling itself Nakawa Market Vendors Association. Nakawa Market Vendors Association on the one hand claimed that it was the one who had been lawfully awarded the contract with the Plaintiff, M/s Nakawa Market Vendors Association Limited on the other hand also claiming that it was actually the one who was awarded the tender. The wrangle between the two parties resulted into a very volatile and chaotic situation which threatened the very livelihood and security of the persons and beneficiaries of the operation of the Nakawa Market thus following several protracted unsuccessful communications, meetings, and investigations into the matter, the Defendant thereafter took over the management and control of the Nakawa Market on the 14^th day July 2011 upon being advised by the then Deputy Resident District Commissioner of Nakawa Division of Kampala City Council and the Kampala District Contracts Committee by virtue of The Market Act Cap 94 of the Laws of Uganda with that situation continuing to date. as exhibited in the Minute FPA 1 .6/16/ 2008 which was approved by The Chief Internal Auditor Report as per resolution (i) and (ii) and The Deputy Mayor informed the committee that the Auditor’s queries were answered and the current status was that the management of the Market was handed over to M/s Nakawa Market Vendors Association Ltd on 23^rd March, 2008. However, on 7^th April, 2008 an injunction stopping the award was issued but this was now invalid and it was decided that at this juncture, members observed that the City advocate should have this matter properly documented indicating the procedures undertaken and it was decided that this would give a clear explanation as to why Council handed over the Market to vendors. It was also decided that arising out of the above observation; it was members’ considered view that a technical report showing the status quo of the market be availed to Committee. It was recommended that The City advocate submits to Committee a technical report concerning the status of NakawaMarket. The defendant’s available records regarding the Plaintiff Company and NakawaMarket Show that Nakawa Market Vendors Association Ltd was awarded a tender to manage Nakawa Market on 26^th March 2008.

By a letter dated 3^rd April 2008 written by the defendant to the plaintiff company accepted the tender. The plaintiff paid an advance to the city Council of Kampala of Shs. 42,000,000/= to Stanbic Bank, Lugogo Branch vide receipt No. 0061391 issued by The City Council of Kampala on Account No. 014006091370 and the said money was paid in the names of NAKAWA MARKET VENDORS ASSOCIATION LTD.

The defendant acknowledged the plaintiff’s claim vides a letter dated 30^th April 2009.

In a letter dated 3/7/2009, The TOWN CLERK wrote to The Senior Principal Assistant Town Clerk Nakawa Division cancelling the above mentioned tender.The Plaintiff was aggrieved by the action of the Defendant of taking over the management, control and maintenance of the Nakawa Market which it states was in breach of the tender award which had been given to it and thusIn breach of the law the defendant has failed resorting to court action not only against some individuals belonging to the Nakawa Market Vendors Association to try to wrench from them their claim that they were the ones who had been granted the contract to manage Nakawa market but also against the Defendant to force it to hand over the management, control and maintenance of the Nakawa to it leading to a court consent order directed the defendant to hand over the market to the Plaintiff. A consent order was eventually signed and witnessed by this court to that effect but was never actually implemented thus leading this suit in which it is seeking orders of this court that for it be allowed to manage , control and maintain Nakawa market in addition to orders for peacefully handed over the management of Nakawa Market.

The records further show that the tender award was accepted by a letter of acceptance dated 3^rd April 2008 signed by PADDY SENTAMUand EDWARD RUGUMAYO. The records also show a performance bond from Tropical Africa Bank Ltd was secured in regard to the said contract and it was in the names of M/s Nakawa Market Vendors Association Ltd.The records also show that the plaintiff company Nakawa Market Vendors Association Ltd paid the abovementioned money in respect of management fees for Nakawa Market to The City Council of Kampala and by virtue of The Kampala Capital City Authority Act 2010 the defendant The City Council of Kampala is the predecessor in title of The Kampala Capital City Authority. The Defendant however took over the market on the 14^th July 2011 and has up-to-date continued to manage and control the said Market purportedly in accordance with its mandate under The Market Act Cap. 94.

POINTS TO NOTE FROM THE PLEADINGS

The plaintiff shall aver that the actions mentioned herein above constitute contempt of Court and the plaintiff shall claim specialspecial, , general, exemplary and or /punitive damages and for the costs of this suit thereofagainst the Defendant.

4. Counsels:

The representation of the parties in this suit was mainly by Mr. Semuyaba Justin of M/s Semuyaba, Iga and Co Advocates for the Plaintiff and Mr. Richard Rubaale of M/s Sendege, Senyondo & Co Advocates for the Defendant.

.5. List of Authorities Cited:

The below listed formed the authorities cited as seen from the pleadings, submissions and evidence received in this Honourable court. A number of them though not all were considered in the resolution of this matter.

1. The Civil Procedure Act CAP 71 of the laws of Uganda.

2. The Judicature Act.

3. Civil Procedure Rules.

4. The Companies Act.

5. Kigule and others v Attorney General [2005] 1E.A.

6. Kayondo v Co-operative Bank Civil Appeal No. 10 of 1991.

7. Orient Diary v D’souza (1948) 23 KLR 4.

8. Jan Mohammed Umedin v Hussein Amasni (1953) 20 EACA 41.

9. Ports Freight Service (U) Ltd v Julius Kamanyi H.C.S No. 409 of 1995 [1996]1 KALR 128.

10. Inter-Freight Forwarders (U) Ltd v East African Development Bank Civil Appeal No. 33 of 1992.

11. Administrator General V Bwanika James, Mayanja Alex, Kakeeto Patrick, Namugera Amos, Robina Nabisigye Eseza, Kawandago Beatrice Civil Appeal No. 7 Of 2003.

12. Margret Kato, Joel Kato V Nulu Naluwoga Civil Appeal No. 3 of 2013.

13. Administrator General v Bwanika James and others SCCA No. 7 of 2003.

14. Struggle (U) Ltd v Pan African Insurance Co. Ltd [1990] KALR 464.

15. Jan Properties Ltd v Dar Es Salaam City Council [1996 EA 281.

16. Herbert v Vaughan [1972]3 All ER 122.

17. J.K. Patel v Spear Limited S.C.C.A No. 4 of 1991.

18. Blackstone’s Law Dictionary 8^th Edition.

19. Carlyle v Carbolic Smoke Ball Co. [1891-94] All ER 127.

20. The Law of Evidence East African Number 24 Evidence in East Africa by HF Morris.

21. Luka Matovu and Others v Attorney General Misc Application No. 142 of 2008 (Arising From HCCS No. 248 of 2003).

22. Excel Construction Ltd V Attorney General HCCS No. 3 of 2007.

23. Yovan Bwambale and 1016 others v AG HCCS No. 660 of 2002.

24. L/CPL Macezima Agonda v B.M. Kakiiza HCCS No. 904 of 1973 per Asthana, Ag. J.

25. Mulla: The Code of Civil Procedure 17^th Edition p 689.

26. Ellis v Allen [1914] 1 Ch.904.

Jamil Senyonjo v Jonathan Bunjo Civil Suit No. 180 of 2012.

27. John Peter Nazareth v Barclays Bank International Ltd E.A.C.A 39 of 1976.

28. African Insurance Co. v Uganda Airlines Corporation Limited [1985] HCB 53.

29. Mohammed B. M. Dhanji v Lulu & Co. [1960] EA 541.

30. Multi Holdings v Uganda Commercial Bank [1972] HCB 234.

31. Tororo Cement Co. Ltd v Frokina International Ltd, SCCA No. 2 of 2001.

32. Subramanian v Public Prosecutor [1956] WLR 965.

33. Myers v DPP [1964] 2 All E.R 881.

34. Patel v Comptroller of Customs [1965] 3 All ER 593.

35. Jungs v R [1952] AC 480.

36. Tenywa v Uganda [1967] EA 102.

37. Magoti s/o Matofali v R (1953) EACA 232.

38. In R v Gutasi s/o Wamagale (1936) 14 EACA 232.

39. The Local Governments (Public Procurement and Disposal of Public Assets) Regulations 2006.

40. The Markets Act Cap 94.

41. CHOGM Tour Agents 2007 Ltd v Masaka Municipal Council Local Government Civil Appeal No. 7 of 2010.

42. The Markets (Kampala Markets) Byelaws.

43. Philips v Abou-Diwan [1976]2 FRCR 24 (F.H.C).

44. Bozak v Ziregbe [1978]2 FRC. R 83.

45. Shonibare v Probate Registrar [1966] A. L. R Comm. 389.

46. Kampala Cotton Co. Ltd v Madhvani (1954) 21 EACA 12.

47. Hindu Dispensary v Patwani (1958) EACA 74 C.A.

48. The Kampala Capital Act No. 1 of 2011.

6. The first Plaint was filed on the 28^thApril 2010.

7. The Plaint was amended on the 28^thMay 2013.

8. The 1^st WSD was filed on the 11^th May 2010.

9. The 1st Amended WSDwas filed on the 18^thSeptember 2014.

10. The 2^ndAmended WSD was filed on the 13^th October 2014.

11. A Reply to the 2^ndWSD was filed on the 13^th October 2014.

12. A Trial Bundle / Scheduling Conference Memorandum were filed on the 28^th April 2014.

13. The Witness statements of the plaintiff were filed on the 5^th May 2014,

14. Plaintiff’s Witnesses:

The parties in this matter called witnesses to support their case as follows;

1. Plaintiff’s

1. PW 1. KINTU MONDAY-FORMER DEPUTYKintu Monday-Former Deputy Resident District Commissioner - PW 1.

2. PW2. FRANCIS KAKURU MPAIRWE FORMER PRINCIPAL LEGAL OFFICER THE CITY COUNCIL OF KAMPALAFrancis Kakuru Mpairwe Former Principal Legal Officer of Kampala City Council of Kampala PW2- PW2.

3. PW3. GORDON TWINOMATSIKO- DIRECTORGordon Twinomatsiko- Director- PW3.

PW4. MWESIGYE FRANCIS MANAGING DIRECTOR

4. Mwesigye Francis Managing Director- PW4.

1. The Witness statements of the Defendant were filed on the 1^st October 2014

2. Defendant’s Witness: DW1–MUGANGAIZI ROBERT RAIKES

1. Mugangaizi Robert Raikes- the Manager Revenue collection in Kampala Capital City Authority- DW1..

It should be noted that by a Ruling in HCT-00-CC-MA-O52-2013 the Plaintiffs Plaint was amended to substitute Kampala City Council with Kampala Capital City Authority as its successor under Kampala Capital City Authority. The prayer were also amended to state as follows,

Plaintiff’s claim against the defendant is for a prayer for a declaration that plaintiff was the rightful winner of the tender to manage Nakawa Market having fully discharged all the requirements as prescribed under the tender Agreement that was awarded on the 26^th March 2008 by the defendant ‘s predecessor Kampala City Council and an order for the plaintiff to be allowed to manage Nakawa Market plus costs of the suit and an Order that the consent judgment in H.C.C.SNO.204 of 2008 be confirmed and respected.

• The first Plaint was filed on the 28^thApril 2010.

• The Plaint was amended on the 28^thMay 2013.

• The 1^st WSD was filed on the 11^th May 2010.

The 2^ndAmended WSD was filed on the 13^th October 2014.A Reply to the 2^ndWSD was filed on the 13^th October 2014.A Trial Bundle / Scheduling Conference Memorandum were filed on the 28^th April 2014.During the scheduling conference the parties filed a Trial Bundle and a Case Scheduling Memorandum on the 28^th April 2014 and it was signed by the following Lawyers.

1. Mr. Semuyaba Justin For M/s Semuyaba, Iga& Co Advocates ( Counsel for the Plaintiff)

2. Richard Rubaale For M/s Sendege, Senyondo& Co Advocates (Counsel for the Defendant)

This means that the following salient matters were agreed upon by both parties through their Counselwho signed the CASE SCHEDULING CONFERENCE MEMORANDUM filedBEFORE: the Hon. MR. Justice Peter Adonyo

1. Are amendments to pleadings required (by consent of court)

Yes, the plaintiff applied for amendment of the plaint and the defendant applied to amend its WSD and they were allowed in HCT-00-CC-MA-052-2013 with leave of court.

6. The AWhat were agreed facts and or admissions:?

The following facts seemed to have been mutually agreed by the parties during the scheduling process of this case.

1. The plaintiff company applied for and was awarded a tender to manage Nakawa Market by the then City Council of Kampala on the 26^th March 2008.

2. By a letter dated 3^rd April 2008 written by the then City Council of Kampala to the plaintiff company accepted the tender.

3. The plaintiff paid a performance bond of Ug. Shs 17, 892,000/= an advance to the then City Council of Kampala of Shs. 42,000,000/= to Stanbic Bank, Lugogo Branch vide receipt No. 0061391 issued by City Council of Kampala on Account No. 014006091370.

4. The plaintiff applied for amendment of the plaint and it was allowed in HCT-00-CC-MA Number -052 of -2013 Nakawa Market Vendors Association Ltd V City Council Ofof Kampala with leave of court and The Respondent/Defendant City Council Ofof Kampala in C.S No. 135 of 2010 was substituted with Kampala Capital City Authority.

5. The current Defendant in HCC.S No. 135 of 2010 is Kampala Capital City Authority which was substituted as the current Defendant is managing Nakawa Market..

7. What documents were filed and admitted as exhibits attached to theScheduling Memorandum.

8. NUMBERING OF EXHIBITS Exhibits:

1. Plaintiffs:

1. Advertisement Forfor Thethe Tender By Kampala City Counsel Exh.P.I .– P.I

2. Application Forfor Thethe Tender Forfor Thethe Management Andand Control Andand Maintenance Ofof Markets Inin Kampala P.Exh2. P.2

3. Articles Andand Memorandum Ofof Association Exh.4. P.4

4. Letter Ofof Award Ofof Tender Forfor Management Andand Control Ofof Nakawap.Exh.4 P.32.

5. Performance Bond P.Exh.5 P.Exh.5.P.33, 34.

6. Letter Toto Thethe Town Clerk Fromfrom Tropical Africa Bank Ltd D. Exh. 6. P.35.

7. Receipt Ofof Nakawa Market Vendors Association Ltd Ltd oOf Ug. Shs 42.000.000/=

   1. P.ExhP.Ex. 6. P.36.

8. Consent Judgment P.Exh.7. P.37

9. Letter Byby Abner Besigye P.Exh.8. P.44

10. Order Byby His Worship John Arutu P.Exh.9. P.51

11. Ruling Of His Lordship Mausalu Musene P. Exh .10 P.54

12. Termination Ofof Contract – Letter Dated 18^th Jjuly 2011 P.Exh.11. P.57,58

13. Letter Byby Thethe Deputy RDC Toto Senior Principal Assistant Town Clerk P.Exh.13 P. 64.

1. Defence :

2. Letter of acceptance dated the 3^rd of April 2008 D.Exh.ID.Exh1

3. Company Resolution dated the 9^th of June 2008 D.Exh.DD.Exh I1V

6. But in the Trial Bundle you can as well find the following documents,

7. Certificate of Incorporation of the Plaintiff Company.

8. Articles and Memorandum of Association of Nakawa Market Vendors Association Ltd.

9. The letter awarding the tender to manage Nakawa Market by Kampala City Council dated the 26^th March 2008.

10. Letter accepting the award to manage Nakawa Market by Kampala City Council on the 26^th March 2008.

11. Company Resolution

12. Annual Returns of Nakawa Market Vendors Association Ltd.

13. List of Directors of the plaintiff Company

14. Company Bank Statements

15. An advertising notice that was put in the New Vision dated March 16^th 2007 asking for tenders for the management and control of markets in Kampala in particular Nakawa Market.

16. A letter upon which Nakawa Market Vendors Association Ltd paid a performance bond that was processed in Tropical Africa Bank.

17. A General Receipt upon which Nakawa Market Vendors Association Ltd on the 14^th April 2008 paid Shs. 42,000,000/= to Kampala City Council as two months advance collection payment under the tender to Kampala City Council.

18. Minutes of the meetings of the Kampala City Council Finance Committee MIN 11/33/2008 upon which Nakawa Market was formally handed over to M/s. Nakawa Market Vendors Association Ltd on the 23^rd March 2008.

19. A consent Judgment and Decree that were dully filed in Court in HCCS No. 204 of 2008.

20. The consent Judgment/Decree that was extracted and filed in court and dully signed by the Lawyers Justin Semuyaba of M/s. Semuyaba, Iga& Co. Advocates for and on behalf of the plaintiff and Mr. ARTHUR MPEIRWEof M/s. MPEIRWE & TOMANYA Advocates for and on behalf of Nakawa Market Vendors Association in the presence of Mr. RUGUMAYO BAGUMA and PADDY SENTAMUat Plot 65 Buganda Road the Chambers of M/s. SEMUYABA,IGA & Co. Advocates.

21. A letter by the Minister of Local Government to resolve the wrangles of Nakawa Market stating that it was decided by all parties including Nakawa Market Vendors Association that the consent Judgment should be respected and all parties work towards its implementation.

22. The application where RUGUMAYO BAGUMA,PADDY SENTAMUand HAWABIRUNGI attempted to set aside the consent Judgment /Decree but withdrew Misc. Application No. 573 of 2008 by consent and later on the 8^th December 2009 where they tried to set aside another consent decree filed on the 25/8/2008 in Civil Suit No, 204 of 2008 by way of review which was dismissed on the 8^th December 2009 by Her Lordship Justice Stella Arach.

24. A letter written by the Ag. Inspector General of Government to the Nakawa Market Vendors Association Ltd that the Judgment in H.C.C.S No. 204 of 2008 was confirmed.

25. Letter by The Deputy RDC Kampala In-charge Nakawa Division to The Senior Principal Assistant Town Clerk Nakawa dated 3^rd May 2011.

26. Letter by the Director Legal Affairs Kampala Capital City Authority to M/s. Semuyaba, Iga& Co. Advocates dated 31^st October 2011.

27. Other relevant documents to be adduced with leave of court.

29. All these documents were agreed upon by the Counsel for the plaintiff and defendant.

30. What are your proposed issuesIssues for trial?

1. The following issues have been formulated to resolve the dispute herein before this court.

Whether the Termination of the Plaintiffs Tender was Lawful/Justified.

2. Whether there was any lawful tender awarded to the plaintiff by the defendant and if so whether its termination was lawful and or justified.

3. What are the remedies Whether the Plaintiff M/S Nakawa Market Vendors Association Ltd should be allowed to Manage Nakawa Market in accordance with the tender awarded to it by the then City Council of Kampala on the 26^th March 2008.

4. Remedies available to the parties.

7. Whether there was any lawful tender awarded to the plaintiff by the defendant and if so whether its termination was lawful and or justified:

The plaintiff in this matter emphasizes that since We emphasize that all the above mentioned issues were agreed upon by both counsel to this case and it was agre^ed that all the parties file witness statements at the trial.

In anut shell since thethe parties did agreed in during the scheduling conference of this suit It should be noted that any issue as whether that indeed the tTender which forms the gist of this matter was lawfully awarded to the plaintiff it thus it should no longer be a subject matter for further scrutiny for evenwas never framed as an issue as it is already an agreed fact .In any case the agreed facts can be found in Para.6 of the scheduling conference memorandum. So it is not in dispute that the Plaintiff was awarded the Tender by The the City Council of KampalaDefendant and by accepts that fact based on its letter dated 3^rd April 2008 the plaintiff accepted the tender. Amendment of the plaint and KCCA made the defendant KCCAwas substituted as the defendant.

We submit that even the defendant made admissions to the same effect in its WSD especially when the defendant pleadings as seen from ed as follows,

as follows that,

The plaintiff company applied for and was awarded a tender to manage Nakawa Market by the then City Council of Kampala on the 26^th March 2008.

By a letter dated 3^rd April 2008 written by the then City Council of Kampala to the plaintiff company accepted the tender.

The plaintiff paid a performance bond of Ug. Shs 17, 892,000/= an advance to the then City Council of Kampala of Shs. 42,000,000/= to Stanbic Bank, Lugogo Branch vide receipt No. 0061391 issued by City Council of Kampala on Account No. 014006091370.

The plaintiff applied for amendment of the plaint and it was allowed in HCT-00-CC-MA-052-2013 Nakawa Market Vendors Association Ltd V City Council Of Kampala with leave of court and The Respondent/Defendant City Council Of Kampala in C.S No. 135 of 2010 was substituted with Kampala Capital City Authority.

The current Defendant in C.S No. 135 of 2010 is Kampala Capital Cityauthority which was substituted as the current Defendant is managing NakawaMarket.

The question that remained for resolution by court was follows,

Whether the Termination of the Plaintiffs Tender was Lawful/Justified.

Whether the Plaintiff M/S NAKAWA MARKET VENDORS ASSOCIATION LTD should be allowed to Manage Nakawa Market in accordance with the tender awarded to it by the then City Council of Kampala on the 26^th March 2008.

Remedies available to the parties.

It should be noted that any issue as whether the Tender was lawfully awarded to the plaintiff was never framed as an issue as it is already an agreed fact .In any case the agreed facts can be found in Para.6 of the scheduling conference memorandum. So it is not in dispute that the Plaintiff was awarded the Tender by The City Council of Kampala and by letter dated 3^rd April 2008 the plaintiff accepted the tender. Amendment of the plaint and KCCA made the defendant KCCAwas substituted as the defendant.

We submit that even the defendant made admissions to the same effect in its WSD especially when the defendant pleaded as follows,

In a WSD filed on the 11^th May 2010 pParagraph. 4 (i) of the written statement of defence where it is categorically stated that plaint this fact is admitted save for the fact that the defendant contends that whereas the award letter dated the 26^th day of March 2008 was inadvertently addressed to Nakawa Market Vendors Association and not to Nakawa Market Vendors Association Ltd but that for all intent and purposes it . It was at all material times dealing withfor the benefit of the plaintiff d which accepted the same by its letter dated 3^rd April 2008.

Para.8 –The plaintiffs estopped from stating that it was never given possession of the Market by the defendant or that it does not manage it.

In a WSD filed on the 12^th June 2013. 2 Para .8- Para 4 (i) of the plaint is admitted save that the defendant contends that whereas the award letter dated 26^th March 2008 in advertently omitted the word “Limited” on the addressee the defendant was at all material times dealing with the plaintiff.

Accordingly, tPara 9- The plaintiff is estopped from starting that it was never given possession of the Market by the defendant or that it does not manage it.

In a Second amended WSD filed on the 18^th September the second See Para.7 .4 (i) – The plaint is admitted save that the defendant contends that whereas the award letter dated 26^th March 2008 inadvertently omitted the word “Limited” on the addressee the defendant was at all material times dealing with the plaintiff.

Para. 8 – The plaintiff is estopped from stating that it was never possession of the Market by the defendant or that it does not manage it.

We he plaintiff avers that since those admissions were further elucidated during scheduling conference of this suit then submit that where a scheduling conference is made, no departure is allowedon basis of the authority in the holding in the case of . In the case of Kigule & and Others v Attorney General [(2005]) 1 EA it where it was held that since the purpose of the a scheduling conference was there in order to save the time of the court by sorting out points of agreement and disagreement so as to expedite disposal of cases, then none of the parties should be allowed to depart from such admissions for this position expands the interpretation given to .

In light of the above we humbly submit that before any witnesses are called there is a duty on Court to frame issues. We refer to 0.15 r 1 (5) CPR and the case of Kayondo V. Co-Operative Bank Civil Appeal No. 10 of 1991 and Oriental Diary V. Desouza (1948) 23 KLR 4 – The framing of issues in a rule governing the conduct of Civil Proceedings which neither the Court nor Counsel in entitled to leave out of account .We refer to the case of Jan Mohamed Umedin V Hussein Amasni (1953) 20 EACA 41 – In practice the two parties normally frame the issues which are put before Court and Court may enter them on record or re-frame them for clarity .Under 0rder .15 r.ule1 (1) of the Civil Procedure R andRules and the position held in the case of Kashiwa V. UTC (1978) HCB 316316 whose holding was to the effect that where such admissions occur then there would only be left the issue of –issuecontention s arise which arises when a material proposition of law and fact is affirmed by the one party and denied by the by the other but w. Where the defendant other party admits the whole claim, then there are would be no issues need cessitatforing a trial and such a defense is no defense as it is frivolous, vexatious and discloses no defence in law.. See: All Ports Freight surviceService (U) Ltd vV. Julius Kamanyi H.C.C.S No.409 of 1995 (1995 (1996) 1 KALR 128.

This court concurs with this position and further goes on to highlight the case of We also rely on the case of InterInter-freight Forwarders (U) Ltd v East African Development Bank Civil Appeal No. 33 of 1992 which1992 where emphasis was made to the zes the fact that pleadings are a system through which parties operate to define the real matters in controversy with clarity and upon which they can prepare and present their respective cases for the court to adjudicate upon for even this position holds true as was considered by the Supreme Court of Uganda .

iIn the case of Civil Appeal No. 7 Of 2003 AdministratorAdministrator General vV Bwanika James , Mayanja Alex, Kakeeto Patrick, Namugera Amos, Mayiga Wukson, Nakuya Joyce, Namukasa Christine Namayanja Robina, Nabisigye Eseza, Kwandago Beatriceand inothers in Civil Appeal No. 7 of 2003 which was an Appeal from the decision of the Court of Appeal of Uganda at Kampala (Mpagi-Bahigeine, Twinomujuni, and Kitumba, JJ.A) where dated 7^th July, 2003, in Civil Appeal NO. 36 of 2002 Tsekooko, JSC pointed guided the courts on the importance of out asfollowsthatthecourt scheduling conferences which he stated must have been held in accordance with the requirements of Order XB Rule 1 of the Civil Procedure Rules with the most . Asfarasrelevant parts of that , that the rule statproviding thues:-

Order XB Rule 1(1):

“(a) "1(1) (a) withinwithin seven days after the order on delivery of interrogatories and discoveries has been made under rule 1 of Order X; or

(b) wWhere no application for interrogatories and discoveries has been made under rule 1 of Order X, then within twenty-eight days from the date of the last reply or rejoinder referred to in sub-rule (5) of rule 18 of Order VIII, the court shall hold a scheduling conference to sort out points of agreement and disagreement, the possibility of mediation, arbitration and any other form of settlement. "

(2) wWhere the parties reach an agreement, orders shall immediately be made in accordance with rules 6 and 7 of Order 13”."

On the other hand Order 13 Rules 6 and 7 of the Order 13 Civil Procedure Rules empowers court to, inter-alia, frame issues on agreed matters and then proceed to enter judgment after due trial as . tThe learned Justice Tsekooko in the earlier cited case Judge went on to state d that as far as he he understood ands the purpose of these provisions, their purpose is towere to enable parties to agree on non-contentious evidence such as facts and documents enabling t. Them agreed facts and documents to thereafter become part and parcel of the evidence on record which are so that they areto be evaluated along with the rest of the evidence before judgment is given. Indeed in meaning that as much as they are admitted without contest, the contents of such admitted documents can only bebe treated as the truth , unless those their contents would intrinsically point to the contrary , and thus if those admitted facts ey arewere relevantt to any issue in dispute then , their admission would disposes of that issue since because the need for its proof or disproof would have been disposed off by the fact of admission. Indeed many other authorities considers and seems to uphold this position with that As well inof Civil Appeal NO. 03 OF 2013Margaret Kato, Joel Kato v NuuluNulu NalwogaNaluwoga Civil Appeal No. 3 of 2013 which was in also an aAppeal from the decision of the Court of Appeal of Uganda for at Kampala (Mpagi-Bahigeine, DCJ; Kavuma; and Arach-Amoko, JJA) dated 21^st March, 2011, in Civil Appeal No. 1 7 of2009 in a Judgement Of G.M. Okello, Ag. JSC . He found out that in that the case where both parties had agreed in the agreedto the facts during the scheduling conference that the plaintiff boughtplaintiff had bought bibanja on the suit land that which belonged s to the defendant as who was the a mailo land owner and having inherited the said land bibanja from one Enusu Kagodoanother and it . It was also agreed by the parties that the plaintiffs wasare in possession of the said bibanja and which had a that they have permanent house and crops thereothereon and then the court went on to find that n. With thoese admissions by the parties to those facts , it waswere a clear manifestation that clear that the plaintiffs have had interests in the land in dispute”. as tThe learned trial Judge while relying ied solely on the admissions of facts at the scheduling conference to fouind that the appellants have had acquired interests on the suit land thus the learned G M Okello Ag. JSC went on to agree with the position taken the learned judge pointed outup by that in The Supreme Tsekooko JSC had observed in Administrator General v - Vs - Bwanika James (supra) “tThat subsequently the agreed facts and documents agreed to at the scheduling conference would thus form part of the evidence on record and are to be would be evaluated along with the other evidence on record before jJudgment is given”.

In my view, this position This at is still good law. In that case it was also observed that was that it is a rule of pleadings that parties are bound by their pleadings and cannot depart therefrom, except upon amendment. A party must prove his/her case as alleged in the pleadings. He or she cannot give evidence that depart from their pleadings. He cited Order 6 rule 7 of the Civil Procedure Rules (CPR) and Inter Freight Forwarders (U) Ltd - Vs–EADB, SCCA No.33 of 1992 to support that view. He criticized the learned Justices of the Court of Appeal for departing from the facts agreed on at the scheduling conference. The Supreme Court cited the case of Administrator General - Vs - Bwanika James and other, SCCA No. 7 of 2003 for the proposition that agreed facts and documents at scheduling conference form part of the evidence on record and are to be evaluated along with other evidence on record before judgment is given.

and nNeedless to state point out if that is so then all the parties in a trial trial would still be are bound by their pleadings and cannot would not be allowed to depart from them as would seemed to be the concurring position in the holding in the cases of . See: Struggle (U) Ltd v. Pan African Insurance Co. Ltd [(1990]) KALR 46-47 ,; Jan Properties Ltd v. Dar Es Salaam City Council [(1966]) EA 281 . It is not allowed for a party to depart from its pleadings Refer toand the casethat of Herbert v.V. VanghamVaughan (1972) 3 All E.R 122.

Thus if the holding above were to be referring then the In this case since it was an agreed facts during in Para.6 of the scheduling conference that the Plaintiff was awarded the tTender and by letter dated 3rd April 2008 the plaintiffit accepted the tender.same can only form evidence which have to be evaluated alongside others and conclusions made thereof. Thus according to the Plaintiff when From the following letters and correspondences which ensued ,between the parties are considered in total then there can could be implied that a contract did exist between the Plaintiff company and the Defendant ,

1. Advertisement for the Tender by Kampala City Counsel Exh. P.I – P.I

2. Application for the Tender for the management and control and maintenance of markets in Kampala P.Exh2 P.2

3. Articles and memorandum of Association Exh.4 P.4

4. Letter of award of Tender for management and control of NakawaP.Exh.4 P.32.

5. Performance Bond P.Exh.5 P.33, 34.

6. Letter to the Town clerk from Tropical Africa Bank Ltd D. Exh. 6. P.35.

7. Receipt of Nakawa Market Vendors Association Ltd of Ug.Shs 42.000.000/=

P.Exh. 6 P. 36.

8. Consent Judgment P.Exh.7 P.37

9. Letter by ABNER BESIGYE P.EXH.8 P.44

10. Termination of contract – Letter dated 18^th July 2011P.Exh.11 P.57,58

11. Letter by the Deputy RDC to senior Principal Assistant Town clerk P.Exh.13 P. 64.

This case is hinged on an implied contract/ agreement between the plaintiff and the defendant We invite this Honorable Court to look at The Civil Procedure Rules PLEADINGS GENERALLY for Ounder Order. 6 r 15rule 15 of the Civil Procedure R Rules i Implied contract or relation. t is provided It states that whenever any contract or any relation between any parties is to be implied from a series of letters or conversations or otherwise from a number of circumstances then, it shall be sufficient to allege the contract or relation as a fact and to refer generally to the letters, conversations or circumstances without setting them out in detail. If in such case the person so pleading desires to rely in the alternative upon more contracts or relations than one as to be implied from those circumstances, he or she may is required to state them in the alternative.

In this case it should be noted from the plaintiff seems to invoke the fact that indeed a contract did exist between it and the defendant and the written statement of defence that the plaintiff and defendant since and all the communications mentioned hereinabove show that there was a Tender Award to Nakawa Market Vendors Association Limited.

Weal sorely on Section 10 (1) of The Contract Act No. 7 of 2010 of the Laws of Uganda which defines a contract as an agreement made with the free consent of the parties with capacity to contract for a lawful consideration and with a lawful object, with the intention to be legally bound. This position is further expanded We in the case rely on the case of J.K Patel versus Spear Motors Limited SCCA number No 4 of 1991 and Blackstone's Law Dictionary (8th edition Edition) where for the definition of a contract. A contract may be defined is defined as being a legally binding agreement made by 2 two or more parties or a . It has also been defined as a promise or a set of promises a the breach of which would under the law provides results into a remedy being granted and the performance of which the law recognizes as an obligation. Other similarly held positions defining what a contract abounds including that found in the case of

We rely on the case of CARarlyle LILL VvS. Carbolic Smoke Ball Co. (1891-94) All. E.R 127 where the defendants, who were the proprietors of a medical preparation called “the carbolic Smoke Ball”, issued an advertisement in which they offered to pay One Hundred Pounds 100 to any person who caught influenza after having used one of their smoke ball in a specified manner and for a specified time for they even went on to state that to show that they were serious about their offer that . They added that they had deposited a sum of One Thousand Pounds 1000 with their bankers “to show their sincerity and the ” . The Plaintiff on the faith basis of that advertisement bought and used the ball as prescribed but still went on to catch , but caught influenza. . She sued for the defendant for stake of the One Hundred Pounds 100.but tThe defendants raised several defenses, one of which was that the advertisement was mere “puff in the ”air” which did not make constitute an offer. However, jThe Judgment was entered in the favour of the for the plaintiff on the basis that . It was held that the stated offer in the advertisement coupled with the performance by the plaintiff of the conditions specified there in created a valid contract which was , supported by consideration, on the part of the defendants to pay the £100 mentioned in the advertisement, and the plaintiff was entitled to recover the sum of £100. In that case tThe plaintiff thus succeeded because the defendants had clearly promised to be bound by the terms stated by them in their advertisement. Nevertheless, it is to be noted that Bowen, L.J said in his holding went on to state that:– “It is not like cases in which you offer to negotiate, or you issue advertisements that you have got a stock of books to sell, or houses to let, in which case there is no offer to be bound by any contract. Such advertisements are offers to negotiate –offers to receive offers...”

Thus aAcceptance may be oral, written or implied from the conduct of the offered i. In CarlillCarlisle v. Carbolic Smoke Ball Co the acceptance by Mrs. CarlillCarlisle was implied since took the form of her conduct by purchasing and consuming the smoke balls.

InBrogden v. Metropolitan Railway Co, where it was held that the 1^st load of coal supplied by Brogden constituted acceptance of the defendants offer to supply the coal and hence there was an agreement between the parties.

In the instant case we submit that the principle of estoppels applies in this matter and we submit that KCCA is caught up by the Principle of Estoppels. The law of Evidence in East Africa Number 24 Evidence in East Africa by HF Morris M.A. LL.B Ph.D states that there are two exceptions to the rule that all facts in issue and relevant facts must be proved by evidence. He quotes the principle of judicial notice and a situation where facts admitted by the Parties. These can be found in The Evidence Act. Ss. 55 and 56.

Estoppels is a doctrine that is to the effect that where parties have a legal relationship and one of them makes a new promise or representation intended to affect their legal relations and to be relied upon by the other, once the other has relied upon it and changed his legal position, the other party cannot be heard to say that their legal relationship was different. The Doctrine of Promissory estoppels is a modification of the Common Law rule of consideration in that it enables a person who has not provided consideration to a promise to enforce it if he has relied upon it and changed his legal position.The law of Evidence in East Africa Number 24 Evidence in East Africa by HF Morris M.A. LL.B Ph.D states that there are two exceptions to the rule that all facts in issue and relevant facts must be proved by evidence. He quotes the principle of judicial notice and a situation where facts admitted by the Parties. These can be found in The Evidence Act. Ss. 55 and 56

We refer to Order 13 rule 6 which provides as follows;

“Any party may at any stage of a suit, where admission of facts is made, either on the pleadings or otherwise, apply to the court for such judgment or order as upon the admission he or she may be entitled to, without waiting for the determination of any other question between the parties, and the court may upon the application make such order or give such judgment, as the Court may think just”

This rule was discussed in the case of LUKA MATOVU & ORS VS. ATTORNEY GENERAL, MISC APPLN NO. 143 OF 2008 ARISING FROM HCCS NO. 248 F 2003, where JUSTICE V.F MUSOKE KIBUUKA stated as follows;

“In a persuasive Judgment of the Court of Appeal of Kenya in Agricultural Finance Corporation Vs Kenya National Insurance Corporation, Civil Appeal No. 271 of 1996, the Court took the view that where the admission is not ambiguous, the court ceases to have a discretion whether to enter a judgment or not. It must do so. According to Phipson on Evidence, Chapter 24, In Civil cases, Statements made out of Court by a party to the proceedings or by any person connected with him by any relevant relationship are admissible in evidence against but not in favour of such party. Admissions are admissible against the Crown as against ordinary parties. It is generally immaterial to whom the admission was made. An admission made to a stranger to the suit is receivable and as relevant as one made to the opposite party.The position of the law appears to be, that private memoranda, though not communicated to the opposite side or to third persons as are admission made to him or her in soliloquy. (Underlining provided for emphasis).

Further, the Hon Justice Andrew K. Bashaija held in H.C.C.S No. 180 of 2012 JAMIL SSEWOWJO VS. JONATHAN BUNJO thus;

Order13 r.6 CPR provides that; “Any party may at any stage of a suit, where an admission of facts has been made, either on the pleadings or otherwise, apply to the court for such judgment or order as upon the admission he or she may be entitled to, without waiting for the determination of any other questions between the parties; and the court may upon the application make such orders, or give such judgment, as the court may think just.”

It is trite law that admission may be express or may arise by implication from non-traverse of a material fact in the statement of claim. The ad mission has to be clear and unambiguous and must state precisely what is being admitted. It was also held in John Peter Nazareth v. Barclays Bank International Ltd., E.A.C.A. 39 of 1976 (UR)that for judgment to be entered on admission, such an admission must be explicit and not open to doubt. Apart from the foregone, once an admission of facts is made, court may upon application make such order or file such judgment. See: African Insurance Co. v. Uganda Airlines [1985] HCB 53; Mohamed B.M. Dhanji v. Lulu & Co. [1960] E.A. 541.

Under Order 8 r.6 CPR, it is provided; and it is also common logic, that a defendant ought to properly admit material facts as to which there is really no controversy and also not to deny plain and acknowledged facts which it is neither in his interest nor his power to disprove. See: Multi Holdings v.UgandaCommercial Bank [1972] HCB 234

Similarly, Section 22 of The Evidence Act is to the effect that facts which are admitted need not to be proved. Since the defendant in this case agrees to; and admits all the material facts in the plaintiff’s claim, there remains no other tribal issues for this court to consider.

We do not consider the issue as whether a Tender was awarded is still one of issue which this Honorable Court should still consider as it was not framed by the parties for this court to determine to be a tribal issue, because under Order 15 r.1 CPR issues only arise when a material proposition of law or fact is affirmed by the one party and denied by the other. In this case they are not.

Needless to state, that the parties are bound by their pleadings and cannot be allowed to depart from them. See: Struggle (U) Ltd v. Pan African Insurance Co. Ltd (1990) KALR 46-47; Jani Properties Ltd v. Dar Es Salaam City Council (1966) EA 281.

The Court of Appeal of Uganda had occasion to discuss the provision above in Kibalama v. Alfasan Belgie VBA [2004] 2 EA 146. The Justices of the Court were unanimously of the opinion that under Order 11 rule 6, which is now Order 13 rule 6, judgment can be entered at any stage of the suit where an admission of facts has been made. That such an admission however, must be unequivocal in order to entitle the party to judgment without waiting for the determination of any other question between the parties.

Similarly, Hon Justice Christopher Madrama Izama held in H.C.C.S No.3 of 2007 EXCEL CONSRUCTIN LTD VS. ATTORNEY GENERAL where the plaintiff’s counsel applied for judgment on admission on the strength of a letter from the Permanent Secretary Ministry of Health Dr. Lukwago Asuman addressed to The Solicitor General Minister of Justice and Constitutional Affairs and copied to the plaintiff company. It was written in that letter in the mediation hearings on 20 March 2008and it was agreed that the government owed the plaintiff 1,821,399,303.67/= Uganda shillings. Subsequently Uganda shillings 1,200,000,000/= was paid leaving an outstanding balance of Uganda shillings 621,399,303.68/=. Thereafter the ministry made adjustments to the claim by subtracting Uganda shillings 168,926,953.98/= as 15% penal interest bank charges erroneously added by the plaintiff in the earlier computation contrary to the terms of the contract. The Permanent Secretary advised the Solicitor General that the amount owed to the plaintiff was Uganda shillings 452,452,349.70/=. The letter was copied to Excel Construction Ltd, the plaintiff and judgment on admission for Uganda shillings 452,452,349.70/=was entered by the court under Order 13 rules 6 of the Civil Procedure Rules as settlement of the principal claim in the suit. Subsequently the suit was fixed for determination of the remainder of the issues namely general damages, interest and costs.”

Furthermore, in the case of YOVAN BWAMBALE & 1016 OTHERS VS.AG HCCS NO. 660 OF 2002, the HON. JUSTICE ELDAD MWANGUSYA had this to say on admissions.

“At first there was controversy as which plaintiffs sued in which suit but at the end of the controversy 914 former employees prosecuted their suit separately from that of the 475 former employees whose suit was tried by His Lordship Justice Musoke Kibuuka, who, on the 18.08.2011 entered judgment upon admission under Order 15 Rule 6 of the Civil Procedure Rules. He pronounced himself as under:-

“In the same way, this Court allows the applicants’ motion. It enters judgment, upon admission, under Order 15 Rule 6 of the Civil Procedure Rules in Civil Suit No. 009 of 2003. It grants to the applicants the following reliefs, which they sought as plaintiffs, in Civil Suit No. 009 of 2003:

- a declaration that the plaintiffs (applicants) are entitled to payment of gratuity in accordance with the contracts of employment between each one of them and the second defendant.

- an order that the first defendant pays to each plaintiff his or her due entitlement of gratuity.

- an order awarding interest at the rate of 8% per annum, on each plaintiff’s gratuity, from the date of filing the suit to the date of payment in full.

- Court has not heard any arguments on the issue of general damages. It has considered the option of ordering the parties to settle the issue of general damages or, in the event of failing to do so, to return to Court for it as was the case with Civil Suit No. 1029 of 1998 (Charles Abola and two others vs. Attorney General). I have realized the difficulties such an order might entail and especially in light of the fact that this case has already spent some nine years in the Courts of law. I also recognize the fact that the claim for general damages emanates directly from the denial to the plaintiffs of their gratuity, the admission of which is the subject matter of this judgment on admission. Accordingly, I have decided to make an award of general damages of a uniform sum to each plaintiff. I am encouraged by the holding in Crown Beverages Ltd vs. Sendi [2006] EA 43 to the effect that the amount of awardable damages is always a matter of discretion for the Court to determine. I accordingly award a sum of shs. 2.000.000/= to each plaintiff as general damages.

- An order awarding interest upon the general damages, at 8% per annum. From the date of this ruling to the date of payment in full, and

- An order awarding the costs of Civil Suit No. 248 of 2003, to the plaintiffs”.

This Court is faced with exactly the same issues as were faced by His Lordship Justice Musoke Kibuuka. The basis for his judgment on admission was a legal opinion expressed in a loose minute by the Ag. Director – Civil Litigation to the solicitor General tendered in this Court .This loose minute gives rise to the first issue which is as to whether by reason of exhibit there was admission of liability entitling the plaintiffs to get judgment. The internal memo as Mrs. Robinah Rwakoojo currently the Ag. Director Civil Litigation who represented the Attorney General in this trial describes it is in my opinion a very sound analysis of the issues that are central to this case and if it was to be found as His Lordship Musoke Kibuuka did that the memo amounted to an admission under Order 15 Rule 6 of the Civil Procedure Rules the plaintiffs in this suit would be entitled to a judgment like the plaintiffs in Civil Suit No. 248 of 2003 Matovu Luka and others vs Attorney General(supra).Mrs. Robinah Rwakoojo’s contention about Exh. P. 26 is that the document was an internal memo to which the plaintiffs were not privy and therefore privileged. She cited Section 4 of the Official Secrets Act (Cap 302) and Sections 123 and 124 of the Evidence Act Cap 6 for her proposition that the document is inadmissible. The Court perused the law cited and neither the provisions of the Official Secrets Act nor those of the Evidence Act are applicable to this document. The Court also could not comprehend as to why the defendant would ‘internally’ admit that the plaintiffs are entitled to their benefits and even come up with a formula for their payment and when he comes to Court he denies that the plaintiffs are entitled to any benefits. The Court wondered if the legal basis for the internal opinion changes when the matter is called in Court when the issues under consideration are the same.

The resolution of the issues raised in the memo leaves me in no doubt that the Attorney General admitted liability in unequivocal terms and I agree with His Lordship Musoke Kibuuka when in his ruling he states as follows:-

“Now, an admission, under Order 15 Rule 6 of the Civil Procedure Rules was defined by the Court of Appeal of Uganda in the Kibalama case (supra).

The Court stated:-

“Under Order 11 Rule 6 (now Order 15 Rule 6) judgment can be entered at any stage of the suit where an admission of facts had been made. Such an admission, however, must be unequivocal in order to entitle the party to judgment without waiting for determination of any other questions between the parties”.

In a persuasive judgment of the Court of Appeal of Kenya in Agricultural Finance Corporation vs. Kenya National Insurance Corporation, Civil appeal No. 271 of 1996, the court took the view that where the admission is not ambiguous, the Court ceases to have a discretion whether to enter a judgment or not. It must do so”.

The Court held that the determination of the issues raised by the author of Exh. P. 26 was unequivocal and judgment should have been entered for the plaintiffs as in the case of Matovu Luka and 474 others. This Court should be not inclined to differ from that judgment given in that the suit as it arises from the same facts.

A judgment on admission in terms of the judgment in Luka Matovu& others (supra) catered for the claim of terminal benefits accruing to the plaintiffs.”

The above cases show that once an admission is clear and unequivocalunequivocal, then the court has no alternative but to enter Judgmentjudgment. Under the rule, judgment can be made on pleadings or otherwise. In the instant case is the . In our instance, there is an admission in the pleadings by the Defendants lawyers which appear clearly in the 1^st WSD that was filed on the 11^thMay2010 and the 1^st Amended WSD that was filed on the 18^th September 2014 and the 2^nd Amended WSD that was filed on the 13^th October 2014.

This is a clear admission of the claim. It is our submission that in the instant case we have admissions made in

The pleadings i.e. The WSD.

Or otherwise – The Letters and correspondences.

Werefer to the authority of Mulla The code of Civil Procedure 17^th Edition P. 685 – it discusses admissions on pleadings to be constructive admission. The case of Harris Vs Gamble (1878) Ch. D 877.The Court held that the defendant had admitted the plaintiff’s claim. In the written statement of defense and the plaintiff was entitled to judgment without adducing any evidence in support of his case.

In Nigeria in the Text – Principles of practice and Procedure in Civil Actions in The High Court of Nigeria p. 119 considering a similar O. 27 r 3 of the English Rules quoted the case of Bello Iyanda& Others V. Famuyisan where it was held that an application by motion on notice to enter judgment for the Applicant could be properly made under the Rule. He also quoted the case of AmudatuApata V. MukadisiOladele&another where The High Court of Lagos State gave judgment in favour of a plaintiff on an application under the Rule founded on the admission of facts of the defendants.

In Uganda in the case of L/CPL MacezimaAgondoa V. B.M. Kakiiza C.S No. 904 of 1973 Ag. J. Asthana High Court held that the defendant in the written statement of defense having admitted that an accident had taken place he could not later in the court deny the occurrence of the accident. The Court applied the doctrine of Estoppels and entered judgment on admission under O.16 r. 12, O. 16 r 4, O.11 r 4 and O. 17r 1 CPR.(Old Rules)

On admissions or otherwise, we rely on The Text of Mulla The Code of Civil Procedure 17^th Edition p. 689 which states that a judgment may be given under this rule not only upon and admissions made on pleadings but upon admissions otherwise made. The words “or otherwise” in this rule are not confined to admissions made under r.1 or r.4 of this order, but an immediate judgment when an admission is made by a letter of facts which show that the defendant has no defence to the action. Refer to Ellis V. Allen (1914) 1Ch.904. The word “or otherwise” in sub rule (1) means admissions not only made in pleadings, but also dehors the pleadings. Such admissions may be made either expressly or constructively. A judgment may be given under this rule even upon a verbal admission if it is clearly proved. This is now legislatively confirmed by the words “orally or in writing” in sub-rule (1).

We rely on the case of Civil Suit NO.180 OF 2012Jamil Ssenyonjo Versus Jonathan Bunjo before: Hon.Mr.Justice Bashajja K. Andrewwho held that Order 13r.6 CPR provides that;“Any party may at any stage of a suit, where an admission of facts has been made, either on the pleadings or otherwise, apply to the court for such judgment or order as upon the admission he or she may be entitled to, without waiting for the determination of any other questions between the parties; and the court may upon the application make such orders, or give such judgment, as the court may think just.”

It is trite law that admission may be express or may arise by implication from non-traverse of a material fact in the statement of claim .The admission has to be clear and unambiguous and must state precisely what is being admitted. It was also held in John Peter Nazareth v.Barclays Bank International Ltd. E.A.C.A 39 of 1976 (UR) that for judgment to be entered on admission, such an admission must be explicit and not open to doubt. Apart from the foregone once an admission of facts is made court may upon application make such order or file such judgment See: African Insurance Co. v. Uganda Airlines [1985] HCB 53;Mohamed B.M. Dhanji .v. Lulu& Co.[1960] E.A .541.

Under Order 8r.6 CPR it is provided and we believe it is also common logic, that a defendant ought to properly admit material facts as to which there is really no controversy and also not to deny plain and acknowledged facts which it is neither in his interest nor his power to disprove .See: Multi Holdings v.Uganda Commercial Bank [1972] HCB 234.As it was held in Tororo Cement Co.Ltd. v.Frokina International Ltd ,S.C.C.A No.2/2001 and Stanbic Bank (U) Ltd; S.C.C.A No.4/2004,the purpose of Scheduling Conference is inter-alia, to sort out issues of over which parties are agreed so that there is no litigation over them thereafter. Similarly, Section 22 of the Evidence Act is to the effect that facts which are admitted need not to be proved.

EVIDENCE OF THE WITNESSSES

There is on Record a sworn testimony witness statement by Kintuof Kintu Monday PWMonday who testified as PW 1 and he told this court he was of the opinion that the defendant had given the tender to the whoplaintiff whom he believed had won the tender well and squarely for he undertook investigations into the matter and found out that though the plaintiff had applied for the tender, it had been awarded to the wrong group stated as follows

That he does recall that, when he took over the office Deputy RDC Kampala In Charge Nakawa Division as a representative of The President in Charge of Monitoring Government Programmes he discovered that, there were a lot of problems in connection with Nakawa Market Management which resulted into insecurity and loss of Revenue Collection.

That this prompted him to call several meetings with the officials of City Council of Kampala i.e. The Mayor, The Town Clerk Nakawa, Councilors and Vendors Representatives and several meetings were conducted between the years 2011/2012.

That the following were his findings,

a) Nakawa Market was being run by a wrong group led by Mr. Paddy Sentamu, Rugumayo baguma Baguma aAnd Ms. Hawa Birungi uUnder an association called Nakawa Market Vendors Association yet in his opinion .

b) the Nakawa Market Vendors Association was a self-imposed group and it could not avail to mywith no office and any authentic documents to on how they were selected or awarded a tender to run Nakawarun Nakawa Market and that .

That from hfrom is findingshis hefindings he found out that that from these findings and documents which were presented given to him byhim by M/S Nakawa Market Vendors Association Ltdthe Plaintiff he found out that the Defendant The City Council of Kampala awarded had placed an Advertisement in the papers calling for THE TENDER FOR MANAGEMENT, CONTROL AND MAINTENANCE OF MARKETS IN KAMPALA .

That pursuant to the abovementioned advertisement Tenders were invited from competent firms and / or individuals for the management, control, and maintenance of the following markets in Kampala.

1. Nakawa market

2. Nateete market

3. Kamwokya market

4. Nalukolongo market.

That on the 18^th April 2007NAKAWA MARKET VENDORS ASSOCIATION LTD. applied for the above-mentioned Tender to the Secretary Contracts Committee Kampala District.

That the Plaintiff company Nakawa Market Vendors Association Ltd was the rightful winner of the Plaintiff tender to manage Nakawa Market for it had having fully discharged all the requirements as prescribed under the tender aAdvertisement as exhibited in the Minute FPA 1 .6/16/ 2008 which was approved by The Chief Internal Auditor Report as per resolution (i) and (ii) and The Deputy Mayor informed the committee that the Auditor’s queries were answered and the status was that the management of the Market was handed over to NAKAWA MARKET VENDORS ASSOCIATION LTD on 23^rd March, 2008.

That however, on 7^th April, 2008 an injunction stopping the award was issued but this was now invalid and it was decided that at this juncture, members observed that the City Advocate should have this matter properly documented indicating the procedures undertaken and it was decided that this would give a clear explanation as to why Council handed over the Market to vendors.

That it was also decided that arising out of the above observation; it was members’ considered view that a technical report showing the status quo of the market be availed to Committee.

That it was recommended that The City Advocate submits to Committee a technical report concerning the status of Nakawa Market.

That the Plaintiff company NAKAWA MARKET VENDORS ASSOCIATION LTD was the rightful winner of the tender to manage Nakawa Market having fully discharged all the requirements as prescribed under the tender Advertisement but to my surprise the above mentioned company never took over the management of the market, but instead through some corrupt City Council of Kampala officials the management of Nakawa Market went into the names of a wrong group who had never applied for and / or bided to manage the market.

That from the abovementioned facts he communicated to Kampala Capital City Authority that the proper company that was awarded the tender was NAKAWA MARKET VENDORS ASSOCIATION LTD and it should be given a chance to run the market because this company had all the documents like Court Orders , some receipts from The City Council of Kampala and it was even properly registered as a limited liability company and yet NAKAWA MARKET VENDORS ASSOCIATION was not even properly registered.

That in his capacity as the Chairman of Security he used his Constitutional obligation to instruct The Police through a letter to The Regional CID at Jinja Road Police Station to investigate the mismanagement of Nakawa Market.

That NAKAWA MARKET VENDORS ASSOCIATION managed by Mr. PADDY SENTAMU, RUGUMAYO BAGUMA and Ms. HAWA BIRUNGI had collected money totaling to about Ug. Shs 400,000,000/= (Four hundred million shillings) which was not remitted to The City Council of Kampala and now Kampala Capital City Authority.

That in another meeting that was held at The Community Hall Nakawa they agreed that NAKAWA MARKET VENDORS ASSOCIATION managed by MR. PADDY SENTAMU, RUGUMAYO BAGUMA and Ms HAWABIRUNGI should leave Nakawa Market in order to pave way for the investigation into the loss of funds.

That in a letter dated 3^rd May 2011 he wrote to The Senior Principal Assistant Town Clerk Nakawa and advised that The City Council of Kampala Nakawa Division should immediately form a Skelton staff assisted by selected vendors representatives from all sections of at least two (2) people per section to act as an interim management committee.

That The City Council of Kampala Nakawa Division was supposed to take over the Nakawa Market for at least a period of two (2) months to re organize the market and later may hand over its management to NAKAWA MARKET VENDORS ASSOCIATION LTD the company which had won the tender.

That In and he concluconcluded sion he stated that there is stillhe nosaw no reason as to why up to date Kampala Capital City Authority hads not handed over the management of Nakawa Market to NAKAWA MARKET VENDORS ASSOCIATION LTDPlaintiff and yet no Report has been made about the Nakawa Market saga.

That M/S NAKAWA MARKET VENDORS ASSOCIATION LTD filed H.C.C.S NO. 135 OF 2010 to demand that the defendant allows it to manage Nakawa Market.

That the Defendants has failed to hand over the said market to M/S NAKAWA MARKET VENDORS ASSOCIATION LTD without any lawful cause.

That KAMPALA CITY COUNCIL was succeeded by KAMPALA CAPITAL CITY AUTHORITY as the Successor under KAMPALA CAPITAL CITY AUTHORITY ACT.

That the Defendants have no good defence to the action in H.C.C.S NO. 135 of 2010 NAKAWA MARKET VENDORS ASSOCIATION LTD V KAMPALA CAPITAL CITY AUTHORITY.

For Purposes of emphasis we quote his letter dated 24^th /04/2014 which was a BRIEF REPORT FROM MR. KINTU MONDAY WILLIAM FORMER D.R.C.CNAKAWA which is DEXH P XIII

It states as follows,

“I do recall that, when I took over the office at Nakawa Division as a representative of the president in charge of monitoring government programmes I discovered that, there was a lot of problems in connection with the Nakawa Market Management which resulted into insecurity and loss of revenue collection. This prompted me to call several meetings with the K.C.C officials i.e. Town clerk Nakawa, the Mayor, Councilors and vendors representatives through those meetings which I conducted between 2011/2012 when I was transferred. The following are my findings.

The market (Nakawa) was being run by a wrong group led by Mr. Paddy Sentamu, Rugumayo Baguma and Ms. Hawa Birungi.

Under the name of Nakawa Market vendors association this set imposed group could not avail my office with authentic documents on how they were selected awarded a tender to run the market. From these findings and documents which were presented to me by Nakawa Market Vendors Association Ltd.

I found out that KCC the then had awarded a tender to Nakawa Market Vendors Association Ltd. In 2008 month of march 23^rd but to my surprise the above mentioned company never took over the management of the market, but instead through some corrupt KCC officials the market was being managed by wrong group who never applied of bided to manage the market from the above facts I communicated to KCCA so that the proper company so that was awarded a tender should be given a chance to run the market because this company had documents like a Court Order, some receipts from KCC and even properly registered.

In my capacity as a chairman of security used my Constitutional right to instruct the police through a letter to Regional CID at Jinja road police to investigate the mismanagement of the Nakawa Market. The Paddy group had collected money totaling to amount 400,000,000/= (Four hundred million shillings) which was not remitted to KCC/ KCCA. In another meeting that was held the community hall Nakawa we agreed that the Paddy Group should leave the market in order to pave way for the investigation and KCC was supposed to take over the market for at least a period of 2 months to re organize the market and later may hand over the management to the company which won the tender.

In conclusion there is still apposing question to why upto date KCCA has not handed over the market and yet a report was given to them about the Nakawa Market saga.

That’s all what I can recall about Nakawa Market in summary.

SIGNED KINTU MONDAY

In Cross examination he stated as follows,

That he was The Deputy RDC of Nakawa from October 2010 to August 2012. That in his capacity as a representative of the President, under the Article 203 of the Constitution, he was to monitor and supervised government programmes and also Chairperson of security of area of jurisdiction. Under new arrangements of Kampala, he was named The Deputy RCC/ Deputy RDC for Nakawa Division and he was familiar with the affairs of Nakawa Markets as a government representative. He confirmed paragraph 9 of his Witness Statement where he referred to an injunction which had been served by The City Advocate against Nakawa Vendors Association. He confirmed that in paragraph 12 of The Witness Statement hesitated that the plaintiff was the rightful winner of the tender. The Plaintiff provided the documents; Certified copy of payment for the tender, Copies of Registration of the company and there were other documents which they exhibited which are on the file at the RDC’s office. He confirmed that the plaintiff applied for management of the matter in 2008. He stated that according to the record, he said in the office the plaintiff never took over the control of the market before he assumed office. There were wrangles and conflicts as regards the market. He stated that Paddy Sentamu had another company called Nakawa Market Vendors Association. It is different from Nakawa Market Vendors Association Ltd the plaintiff. He confirmed PEX 4, a performance bond from Tropical Africa Bank Ltd.

He stated that he recalls constituting meetings which resolved that there would be representatives of the market to have harmony in the market. He stated that even when he did recommend that KCCA takes over the management of the market for the time being . This was because he feared thatto avoid chaos and insecurity was imminent and loss of revenue, he was of the firm opinion that the plaintiff was the rightful winner of the tender to manage the said market. He stated that he did not remember whether he recommended on the issue of loss of lives. He stated that during the period I was there, he did not recall whether there was any attempt to have elections in the market. He stated that as per PEX 13, he wrote in the letter to The Assistant Principal Town Clerk that KCCA took over the running of the market for 2 months then hand over as per the court ruling to the Plaintiff Company.

He further went on to state that stated that he was aware that knows that the plaintiff had taken the defendant to court in order for it the plaintiff to be took the matter to court as they were not allowed to run the market and when he left office in August 2012, the wrangle in the market had been resolved as per the agreement with KCCA. He stated that the group collecting money was not remitting it to KCC and they should be apprehended.

He stated that the management of the market be taken over by the rightful people as per the court ruling per the court ruling. PEX 7, KCCAeven with a consent judgment between the parties as seen from exhibit P.7 which is signed by advocates for the plaintiffs and defendants and sealed by the court, the defendant still did not relinquish the management of the market to the plaintiff. This position was echoed by

another witness called On Re-examination he reconfirmed what he stated in his statement of evidence. He stated that the tender was awarded by KCC Tender Committee and The Principal Town Clerk- Nakawa. He stated that he confirms that Nakawa Market Venders Association Ltd never managed the market as per the complaints which he continued to receive from them and as per his letter of PEX 13, his recommendation was never implemented. He was very emphatic that the contractor he meant was Nakawa Vendors Association Ltd the Plaintiff.

PW II was Francis Kakuru Mpairwe (PW2) who stated that On the 01/7/2014 the Court made a Ruling that Mr. KakuruFrancisMpairwe was key in this matter ought to appear in court and testify as to his knowledge of the proceedings and contract relating to this matter and that this would enable this Honorable Court to un-package the issues surrounding this matter and arrive at a just conclusion and that he may be called as a witness of fact and this court believes that his calling as a witness would not be in contravention of Rule 7 of The Advocates (Professional Conduct) Regulations SI 267.2 rule 4. At that moment there was no appeal against that order.

He stated that as follows:

That hby virtue of his being e was the former Principal Legal Officer in the former City Council of Kampaladefendant he was of the view that .

That there was an Advertisement in the papers calling for The TENDER FOR MANAGEMENT, CONTROL AND MAINTENANCE OF MARKETS IN KAMPALA.

That pursuant to the abovementioned advertisement Tenders were invited from competent firms and/or individuals for the management, control, and maintenance of the following markets in Kampala.

1. Nakawa market

2. Nateete market

3. Kamwokya market

4. Nalukolongo market.

That on the 18^th April 2007 the Company NAKAWA MARKET VENDORS ASSOCIATION LTD applied for the above-mentioned Tender to the Secretary Contracts Committee Kampala District.

That the conditions were very clear as follows,

Tender documents were at the City Hall in the office if the Secretary to the Kampala District Contracts Committee Room B114A, at a non-refundable fee of Ug. Shs, 100,000/= (Uganda shillings one hundred thousand) per set of documents.

All Companies currently owing money to Kampala City Council for running of markets will be disqualified.

Each tender application must be accompanied by the following;-

The 2006-2007 income tax clearance certificate (Original)

A certified True copy of a certificate of incorporation by the Registrar of Companies.

A valid trading license for 2007.

The postal address and physical location of the firm /Company.

Bid security in the form and amount to be specified in the bid document.

The original council receipts for the purchase of the documents must be submitted with the tender documents properly sealed in an envelope clearly marked on top “Tender for the management, control and maintenance of markets “ addressed to :- The Secretary Kampala District Contracts Committee, P.O Box 7010,Kampala.

That the Plaintiff company Nakawa Market Vendors Association Ltd was the rightful winner of the tender to manage Nakawa Market having fully discharged all the requirements as prescribed under the tender aAdvertisement as exhibited in the Minute FPA 1 .6/16/ 2008for that fact was which was approved by tThe Chief Internal Auditor in his rReport as per resolution (i) and (ii) and tThe Deputy Mayor of the Defendant informed the committee that the Auditor’s queries were answered and the status was that the management of the Market was handed over to M/s Nakawa Market Vendors Association Ltd on 23^rd March, 2008.

That however,but this witness went on to state that however on the 7^th April, 2008 an injunction stopping the award to the plaintiff was issued but this which however became was now invalid and it was decided that at this juncture, members observed that the City Advocate should have this matter properly documented indicating the procedures undertaken and it was decided that this would give a clear explanation as to why Council handed over the Market to vendorsthereafter .

That it was also decided that arising out of the above observation; it was members’ considered view that a technical report showing the status quo of the market be availed to Committee.

That it was when a report by recommended that the City Advocate submits to a cCommittee of the defendant received a a technical report from the city advocate which showed that concerning the status of Nakawa Market.

That the Plaintiff company Nakawa Market Vendors Association Ltd washad been awarded a tender to manage Nakawa Market by Kampala City Council on the 26^th March 2008 .

That by a letter dated 3^rd April 2008 written by the plaintiff company to the defendant, the plaintiff company accepted the tenderhaving fulfilled all the requirements of the tender and thus in his view .

That the Plaintiff Company took out a Performance Bond with M/s TROPICAL AFRICA BANK LTD of Ug. Shs 17,892,000/= for the management and control of Nakawa Market under Contract No. KDCC 8/36/200.

That the Plaintiff company NAKAWA MARKET VENDORS ASSOCIATION LTD paid an advance to The Council of Kampala Shs. 42,000,000/= to Stanbic Bank, Lugogo Branch vide receipt No. 0061391 issued by The City Council of Kampala on Account No. 014006091370, a copy of the General receipt was attached .

That the Plaintiff company NAKAWA MARKET VENDORS ASSOCIATION LTD was the rightful winner of the tender to manage Nakawa Market having fully discharged all the requirements as prescribed under the tender Advertisement but to my surprise the above mentioned company never took over the management of the market, but instead through some corrupt City Council of Kampala officials the management of Nakawa Market went into the names of a wrong group who never applied for or bided to manage the market.

That there is he saw still no reason as to why up to date the Kampala Capital City Authority has had not handed over the management of Nakawa Market to NAKAWA MARKET VENDORS ASSOCIATION LTD and yet no Report has been made about the Nakawa Market saga.the plaintiff

That M/S NAKAWA MARKET VENDORS ASSOCIATION LTD filed H.C.C.S NO. 135 OF 2010 to demand that the defendant allows it to manage Nakawa Market.

That the Defendants have failed to hand over the said market to M/S NAKAWA MARKET VENDORS ASSOCIATION LTD without any lawful cause.

That KAMPALA CITY COUNCIL was succeeded by KAMPALA CAPITAL CITY AUTHORITY as the Successor under KAMPALA CAPITAL CITY AUTHORITY ACT.

That the Defendants have no good defence to the action in H.C.C.S NO. 135 of 2010 NAKAWA MARKET VENDORS ASSOCIATION LTD V KAMPALA CAPITAL CITY AUTHORITY.

On cross examination he stated that In 2007, his role in the predecessor council was that he was an Advocate in The City Advocate’s office by virtue of which he sat on the contract’s committee which awarded contracts together with the City Advocate. He stated that knows the matter in respect of the instant matter. He confirmed that in paragraph 6 of his witness statement that the plaintiff company fully discharged its obligation under the tender. The requirements were in the newspapers. He stated that the Contracts Committee confirmed that the plaintiff company was not indebted, and had a clean record, a valid license, and was a registered company, and had cleared all taxes due, income tax clearance certificate was also a requirement. He stated that the applicant for the tender was to have original council receipts for purchase of the tender documents.

The witness stated that the exact role was to give legal advice to the committee as a city Advocate. He confirmed that the tender committee of KCC then made an award. He confirmed that the plaintiff made a performance bond with Tropical Bank Ltd and he confirms that he looked at it when he was still at The City Council. When shown EX PV appearing at P. 33 of The Trial Bundle he confirmed that it is the Performance Bond paid by the Plaintiff Company. It was taken out by the plaintiff company managers. The plaintiff’s company names are reflected in the bond. He maintained that it was the plaintiff company which took out the performance bond. He stated that there was no reason why KCCA to date has not headed over the management of the market to the plaintiff. He stated that by the time he left KCC, there was a certain group which had imposed itself who was managing the market and he did not know the composition of the group. He stated that the plaintiff company to his knowledge filed a suit against the said group. When Shown PEX VII he stated that he was very conversant with the details of the case.

When Shown PEX IV he stated that he knew the document. It was an award of tender to manage and control Nakawa market. It is letter of award and it is genuine. He confirmed that to his knowledge the plaintiff company had paid the money to manage the market fees. This is paid by the performance bond and advance as per paragraph 13 of my statement. The payment was some of the terms of the award of the tender. It was an advance payment. He confirmed a letter Mr. ABNER BESIGYE, P. EXH.XIII the then Assistant Town Clerk, Nakawa. Which clearly states as follows for emphasis?

Following a thorough Research on the issues surrounding the management of Nakawa Market, it was found out that the genuine group to manage the Market was The Nakawa Market Vendors Association Ltd and not Nakawa Market Vendors Association as the letter of Award stated.

The Following are the findings,

1) That it was The Nakawa Market Vendors Association Limited which had applied and consequentially bided.

2) That the same Limited Association paid the performance bond as evidenced by the Letter from the bank (Copy) attached.

3) That the initial payment to Nakawa Division of Shs. 42 m was also paid by the same Limited Association (See a copy of receipt attached)

4 ) That when the matter was taken to Court , it ruled in favour of the Limited Association whereby all parties had to go the consent judgment earlier on agreed upon( see copy ) .

The evidence therefore clarifies that NakawaMarket Vendors Association Limited is the rightful company that should have been awarded the tender to manage Nakawa Market.

On Re- examination he stated that he used to sit on the KCC Contracts Committee. It awarded the contract to the plaintiff company. There was a group causing confusion. The contracts committee never awarded a contract to that group as it never applied for the tender. The plaintiff applied for the tender “Nakawa Market Vendors Association Ltd” did apply and it was awarded the tender. He stated that the plaintiff should be allowed to manage the market as it lawfully won the tender and fulfilled the terms of the tender as per the details of the award. He stated that to the best of my knowledge KCC has not refunded to the plaintiff company the advance money it paid. He stated that he is aware that KCCA took over the liability of KCC.

This particular witness was recalled on the 16/12/2014.

He stated as follows;

That he was a principal legal officer and a deputy city advocate till 2011 when I retired. He recalls the advert which was passed out by KCC. The advert to manage Nakawa Market and others specifically clarified that the companies applying must be a registered company with a certificate of Registration accompanying the application tender. The tender for Nakawa Market was advertised and Nakawa Ltd made an application on 18/7/2007 and the contracts committee of KCC perused its application and other and the Vendors Association Ltd was awarded the tender to manage the market. The minutes of the tender committee was tendered as PEX 3 and I can confirm the said minutes as those of the contracts committee to which I was a member. After the award, the said company names was forwarded to the council and the plaintiff dully paid the initial payments of shs 42m/= to KCC as per PEX6 in the names of the plaintiff, Nakawa Market Vendors association Ltd, it has never been refunded to that company. His comment was that on the contract not been awarded is that it is not true. The contract was awarded and the fees paid. If any person stated so he would be telling a very bad lie as the minutes are clear and the Town clerk’s letter awarding the tender is also on record.

He stated that he left KCCA in May 2011. By that time KCCA had not cancelled the tender award. He was in the legal department of KCC. He was conversant of the change of legal status of KCC to KCCA. .

Relating this position to the evidence of

Then the law applicable was the Local Government Act which was replaced by the KCCA Act and the said Act bound KCCA to take up all obligations, liabilities and assets of KCC.

The change of status took place while I was still in the Legal Department.

He testified that he would recommend that KCCA must take up all liabilities of former KCC which awarded the tender to the plaintiff and KCCA would have taken over that responsibility straight away under the Act. He stated that is an association called Nakawa Market Vendors Association. The tender was awarded to Nakawa Market Vendors Association Ltd and an association which did not meet the requirements would not be qualified. He categorically stated that there could not be two entities with similar names registered as reservation of names is normally done when one applies to register a company.

On Further cross examination he stated as follows,

That there was a meeting was in 2008. It was a council meeting confirming the contracts committee meeting. They are not of the contracts committee (witness not very sure). The letter of award is addressed to M/s Nakawa Market Vendors Association. There is a big difference between Nakawa Vendors Association and Nakawa Market Vendors Association Ltd, one is not a legal entity. See PEX 4. As per PEX 5, the performance bond was executed in the favour of Nakawa market Vendors Association Market vendors Association though it is not clear. The plaintiff company is not referred to in the performance bond. KCC/KCCA has never refunded the 42m/= the plaintiff company paid and to my knowledge, I am not aware whether the plaintiff company has ever demanded for a refund. Looking at PEX 3, PEX 4 and PEX 5, the tender was awarded to Nakawa Market vendors association Ltd but the word “Ltd” was inadvertently omitted. I cannot recall how many companies applied for the tender

On Re-examination he stated as follows;

The minutes are of the council confirming the decisions of the contracts committee. By mentioning only Association and omitting the words “Ltd” would not change anything. In reality the tender was awarded to Nakawa Market Vendors Association Ltd. Nakawa Market Vendors Association Ltd paid the Shs 42m/=. It was the one who applied for the tender and even paid the performance bond which has never been vacated unless if it was done after 2011 when he left KCC/KCCA

PW III was Gordon Twinomatsiko, who stated as follows,

that he is one of the Directors of the Plaintiff Company in this matter and I swear this witness statement in that capacity.

That there was an Advertisement in the paper calling for The TENDER FOR MANAGEMENT, CONTROL AND MAINTENANCE OF MARKETS IN KAMPALA.

That pursuant to the abovementioned advertisement Tenders were invited from competent firms and / or individuals for the management, control, and maintenance of the following markets in Kampala.

1. Nakawa market

2. Nateete market

3. Kamwokya market

4. Nalukolongo market.

That on the 18^th April 2007 their Company NAKAWA MARKET VENDORS ASSOCIATION LTD applied for the above-mentioned Tender to the Secretary Contracts Committee Kampala District.

That the conditions were very clear as follows,

Tender documents are at the City Hall in the office if the Secretary to the Kampala District Contracts Committee Room B114A, at a non-refundable fee of Ug. Shs, 100,000/= (Uganda Shillings One Hundred Thousand) per set of documents.

All Companies currently owing money to Kampala City Council for running of markets will be disqualified.

Each tender application must be accompanied by the following;-

The 2006-2007 income tax clearance certificate (Original)

A certified True copy of a certificate of incorporation by the Registrar of Companies.

A valid trading license for 2007.

The postal address and physical location of the firm /Company.

Bid security in the form and amount to be specified in the bid document.

The original council receipts for the purchase of the documents must be submitted with the tender documents properly sealed in an envelope clearly marked on top “Tender for the management, control and maintenance of markets “ addressed to :- The Secretary Kampala District Contracts Committee, P.O Box 7010,Kampala.

That the Plaintiff company NAKAWA MARKET VENDORS ASSOCIATION LTD was the rightful winner of the tender to manage Nakawa Market having fully discharged all the requirements as prescribed under the tender Advertisement as exhibited in the Minute FPA 1 .6/16/ 2008 which was approved by The Chief Internal Auditor Report as per resolution (i) and (ii) and The Deputy Mayor informed the committee that the Auditor’s queries were answered and the status was that the management of the Market was handed over to M/s Nakawa Market Vendors Association Ltd on 23^rd March, 2008.

That however, on 7^th April, 2008 an injunction stopping the award was issued but this was now invalid and it was decided that at this juncture, members observed that the City Advocate should have this matter properly documented indicating the procedures undertaken and it was decided that this would give a clear explanation as to why Council handed over the Market to vendors.

That it was also decided that arising out of the above observation; it was members’ considered view that a technical report showing the status quo of the market be availed to Committee.

That it was recommended that the City Advocate submits to Committee a technical report concerning the status of Nakawa Market.

That the Plaintiff company NAKAWA MARKET VENDORS ASSOCIATION LTD claims against the defendant a prayer for a declaration that the plaintiff was the rightful winner of the tender to manage Nakawa Market having fully discharged all the requirements as prescribed under the tender Agreement that was awarded on the 26^th March 2008 by the defendant ‘s predecessor Kampala City Council and prays to be allowed to manage Nakawa Market .

That the Plaintiff company NAKAWA MARKET VENDORS ASSOCIATION LTD was awarded a tender to manage Nakawa Market by Kampala City Council on the 26^th March 2008.

That by a letter dated 3^rd April 2008 written by the plaintiff company to the defendant, the plaintiff company accepted the tender.

That the Plaintiff Company took out a Performance Bond with M/s TROPICAL AFRICA BANK LTD of Ug. Shs 17,892,000/= for the management and control of Nakawa Market under Contract No. KDCC 8/36/2007.

That the Plaintiff company NAKAWA MARKET VENDORS ASSOCIATION LTD paid an advance to The Council of Kampala Shs. 42,000,000/= to Stanbic Bank, Lugogo Branch vide receipt No. 0061391 issued by The City Council of Kampala on Account No. 014006091370.

That in H.C.C.S No. 204 of 2008 NAKAWA MARKET VENDORS ASSOCIATION V PADDY SENTAMU, RUGUMAYO BAGUMA AND HAWA BIRUNGI a Consent Judgment/Decree/order was entered whereby it was confirmed that the plaintiff was awarded a tender to manage Nakawa Market as a limited liability Company and it fully discharged all the requirements as prescribed under the Tender Agreement that was awarded on the 26^th March 2008.

That in breach of the law and in contempt of court Judgment /Consent Decree and the plaintiff’s Memorandum and Articles of Association, the defendant has failed to comply with the Court Consent Judgment/Decree/order in H.C.C.S No. 204 of 2008 and has continuously failed to ensure that the said Market is peacefully handed over and managed by the plaintiff company as was ordered by court.

That the Plaintiff Company NAKAWA MARKET VENDORS ASSOCIATION LTD states that there has always been a consent Judgment in this matter and The Executive Director of KCCA in a letter dated 18^th July 2011 confirmed that the said market ought to be handed over to M/S NAKAWA MARKET VENDORS ASSOCIATION LTD.

That there was a Notice to show cause issued by The High Court in HCCS NO. 204 of 2008 dated 22^nd December 2011 which was dully served upon the KCCA. A warrant to the Bailiff to give vacant possession of Nakawa Market was also served upon KCCA. As well several letters have been written to The Executive Director KCCA requesting them to hand over the said Market but to no avail.

That by a Court Order of His Worship John Arutu dated 19^th April 2011 stated that the plaintiff company was free to access Nakawa Market.

That The Deputy Resident Commissioner in Charge of Nakawa Division received this order and he wrote to The Senior Principal Town Clerk Nakawa taking possession of Nakawa Market that KCC was taking over possession of Nakawa Market but only for a period of two months and then hand it over to the Contractor (Tenderer) as per the court ruling.

That in her letter dated 18^th July 2011 The Executive Director KCCA Mrs. Jennifer Musisi stated that vacant possession of the Market should be made in accordance with the Court Order dated 21^st day of June 2011 in H.C.C.S NO. 204 of 2008.

That Since the Consent Judgment /Decree has never been set aside or appealed against it is still binding and all the orders of The Registrars of The High Court Commercial Division have never been set aside or appealed against.

That the defendant acknowledged the plaintiff’s claim vide a letter dated 30^th April 2009 written by The Ag Principal Asst. Town Clerk /Nakawa Division Abner Besigye to The Town Clerk Kampala City Council

That in a letter dated 3/7/2009, THE TOWN CLERK wrote to The Senior Principal Assistant Town Clerk Nakawa Division cancelling the above mentioned tender.

That there has always been a consent Judgment in this matter and The Executive Director of Kampala Capital City Authority in a letter dated 18^th July 2011 confirmed that the said market ought to be handed over to M/S NAKAWA MARKET VENDORS ASSOCIATION LTD.

That M/S NAKAWA MARKET VENDORS ASSOCIATION LTD filed H.C.C.S NO. 135 OF 2010 to demand that the defendant allows it to manage Nakawa Market.

That the Defendants has failed to hand over the said market to M/S NAKAWA MARKET VENDORS ASSOCIATION LTD without any lawful cause.

That KAMPALA CITY COUNCIL was substituted with KAMPALA CAPITAL CITY AUTHORITY as the Successor under KAMPALA CAPITAL CITY AUTHORITY ACT in a Ruling made by His Lordship Justice W.M Musene dated 5th March 2013.

That the Defendants have no good defence to the action in H.C.C.S NO. 135 of 2010 NAKAWA MARKET VENDORS ASSOCIATION LTD V KAMPALA CAPITAL CITY AUTHORITY .

That the plaintiff company prays for judgment to be entered against the Defendant for;-

For a declaration that the applicant /plaintiff was the rightful winner of the tender to manage Nakawa Market having fully discharged all the requirements as prescribed under the tender Agreement that was awarded on the 26^th March 2008 by the defendant /respondent ‘s predecessor Kampala City Council and an order for the applicant /plaintiff to be allowed to manage Nakawa Market.

An order that the consent judgment/decree in H.C.C.S No. 204 of 2008 be confirmed and respected.

Costs of the suit.

On Cross examination he stated that the plaintiff Company was to pay Ugx 21m/- per month to KCC. The contract was to run for five years but we paid for two months only. The Company presented a performance security bond as requires as per page 33 (PEX V). He stated that the plaintiff company discharged all the requirements. Having done the acceptance and award given and paying all the moneys required, it awaited just a signature to draft a contract. He stated that Paddy Sentamu and others were holding out as people who were mandated to control Nakawa market by KCC. He confirmed High Court Civil Suit No. 204 of 2008. He confirmed the payment of Ug. Shs 42m/= paid to which issued a Receipt. He stated that the tender was awarded by KCC to Nakawa Market Vendors Association Ltd and not Nakawa Market Vendors Association. The money was paid to Stanbic Bank as Advised by KCC to bank on Nakawa Division KCC account.

He confirmed that the consent judgment with Paddy Sentamu, Rugumayo and others which were orders made against the individuals who had hijacked the company in connivance with KCC officials. He stated that they chose not to add KCCA as a party then, we then later dragged KCC to court and later amended to have KCCA and this is the case now in court.

He stated that as per PEX X11 at page 64 of The Trail Bundle, it is true that the RDC recommended that KCC takes over the management of the market but on a temporary basis.

He stated that as per DEX 3, which is the company resolution, paragraph 3, it states that Paddy Ssentamu was erroneously presented to the bank instead of Joseph Sentamu who is different from Paddy Joseph Sentamu.

On Re-examination he stated that he isa director in Nakawa Market Vendors Association Ltd which is are gistered as a Ltd Liability Company. He stated that there was an attempt to liquidate the performance bond by KCC and they went to their lawyer who wrote to the bank to stop it from doing so as there was no justification since it had never allowed them to effect the tender in the market. The bank wrote in response wrote to KCC on page 35 regretting that the contract quoted did not correspond to the bank’s guarantee. The meaning was that Nakawa Market Vendors Association did not have any account with the bank. It was Nakawa Market Vendors Association Ltd Co. which was the rightful company. Paddy Sentamu Joseph was the one behind the so called Nakawa Market Vendors Association. He stated that Nakawa Market Vendors Association Ltd as a Company took action and brought a suit against him and his other colleagues. This culminated into the consent judgment as per EXH P VII at page 37 of the Trial Bundle. The Consent Judgment meant that Paddy Sentamu and group recognized that the tender was awarded to the plaintiff company Nakawa Market Vendors Association Ltd and not Nakawa Market Vendors Association, the Association. They informed and served KCCA with the consent judgment but they continued to deal with Paddy Sentamu and his group.

He stated that they held several meetings with the Town Clerk of KCC who remained adamant. The group failed to comply with the consent judgment and KCC continued to deal with them as an Association.

He stated that they appeared before the court. They applied for execution against Paddy Sentamu, Rugamayo Baguma and Hawa Birungi.At page 48 of the trial bundle, there is an order issued by dismissal of an application for want of prosecution. At page 49 there is a consent order where it was ordered that application to set aside consent judgment is withdrawn. At page 51, shows that an amicable solution had been arrived at. At page 52, is a warrant issued against the defendant/ respondents issued to a bailiff to arrest the named persons in the warrant. At page 53 in an order issued by Registrar in charge of execution for the respondents to pay costs and vacant possession. All those warrants were duly communicated to KCCA.

He stated that Up to today they have not been allowed to run to market. The reason is that there is this pending suit and that KCCA stated that they would look into the matter.

On the 10^th December 2014 this witness was recalled and he stated as follows,

That he does not know Mr. Munganganzi Robert Rikes, a witness for the defence. The tender for the management of Nakawa market was awarded to the Company by Kampala District Tender Committee was back around 26/3/2008. The tender was awarded to a company which was a legal entity- Nakawa Market Vendors Association Ltd as it was complying with the requirements of KCC calling for tenders. The legal entities requested to tender were strictly to be a “limited liability company” and as such we did apply. When we registered the plaintiff, we did a thorough search and no other name was like that of the defend plaintiff. The association which has a similar name with our company is not registered and therefore cannot transact any business with government. The tender required us to pay 42m/= which we paid on KCC account in Stanbic Bank at Lugogo Branch. The money has never been refunded to them.

He was Shown PEX VI. This was the receipt by KCC that they received the money on their account. When we made the application, it was made by the director of the plaintiff company applying on behalf of Nakawa Market vendors Association Ltd. He was Shown PEX IV. It is an award of tender for management of Nakawa Market. It required us comply with certain matters after the award of the tender. The Company was to pay Shs 225.6m/= per annum. It was also required to provide a performance bond and also to indicate in writing within receipt of the offer within seven days. The Company wrote a letter accepting the tender contract. He was Shown DEX I. He confirmed that was the one. It is dated sometime in April 2008, the date is not clear. It was signed by one Paddy Sentamu and Rugumayo Baguma. It is stamped by Nakawa Market Vendors Association Ltd, the stamp of the company. The KCC never handed over the market to us up to now and that is why we are in court city council instead illegally dealt with individual not recognized such created comparison resulting in our bringing a case against those individuals so that the court would sort us out.

In the process in court the individual group realized that the case was weak in that they were not a legal entity to do business with government and so they accepted to enter a consent which court confirmed. It is the same referred in his witness statement.

The agreement was to the effect that the tender belonged to Nakawa Vendors Association Ltd as the one which met the contract. They agreed to work with the company under the guidance of the company rules.

We informed KCC of that development and they confirmed, this was by the Assistant Town Clerk of Nakawa Davison Mr. Abner Besigye and subsequently it was confirmed by the successor of KCC i.e. KCCA in a letter written by the Executive Director of KCCA, Mrs. Jennifer Musisi. This was referred to in my statement. Up to now KCCA has not complied with the tender as they kept dilly dallying

As a result they requested that we should be given the tender as very many people would benefit from, collect the dues, give KCCA its due and take ours.

In the alternative, if they feel we should not run the tender given to us, we be compensated since 2007 to date for the loss and what is appropriate since we have never been at any fault which were caused by the defendant and its agents when its disorganized the procurement process when it out an illegal team to collect money on their behalf clandestinely which ended in putting KCCA in very big depression to lose huge sums of money which it is still now regretting and cannot recover from the illegal personalities than if it had dealt with a legal company that had won the tender. He stated that they are willing and have the capacity to run the tender in spite of losses they have incurred as a result of not having been allowed to run the market

On Cross examination he stated that

The plaintiff company complied with all the requirements and terms of the advert. He referred to the letter of The Executive Director confirming the contract. PEX 4 is a letter from KCC addressed to Nakawa Market Vendors Association. He confirmed that PEX 5 is the performance bond written to KCC by Tropical bank in regards to management and control of Nakawa Market Vendors Association. It does not refer to Nakawa Market Vendors Association Ltd. When Shown DEX 1 he confirmed that it is a letter of acceptance by their company. It was signed by Sentamu whom knows.

He stated that all along KCC dealt with illegal people- they were three; Paddy Sentamu, Rugumayo Baguma and Hawa Birungi. Rugumayo Baguma was merely a minute’s secretary, not a board secretary. Paddy Sentamu is also a vendor at Nakawa market .By virtue of DEX 8; Paddy Sentamu was given and holds a position of responsibility in the company

On Re-examination he stated as follows,

PEX 11 is a letter from the Executive Director. It refers to a case HCCS No. 204 of 2008 which was a consent judgment and Order. The letter was telling Nakawa Vendors Association stating that their contract had been terminated. The three persons Paddy Sentamu, Rugumayo and Hawa were brought on board to run the tender with the company due by making them signatories in good spirit before court in HCCS No. 204/2008. The matter was properly before the court and consent was signed by the trial judge and sealed. It is the one referred to in PEX 11 by the Executive Director KCCA

Paddy Sentamu Joseph is the one who signed the acceptance letter DEX 1 and is the one who is referred to in PEX 7- consent judgment. The consent confirmed that the tender belonged to Nakawa Market vendors association Ltd. I know DEX 8, the resolution; Paddy Sentamu was made one of the signatories to the company accounts. From the resolution, he became part of Nakawa Market Vendors association Ltd and not Nakawa Market Vendors Association. The tender was meant for and company Ltd by shares but not otherwise.

For emphasis we quote the Tender Advertisement which was run by KCC. It reads,

TENDER ADVERT

TENDER FOR THE MANAGEMENT CONTROL AND MAINTENANCE OF MARKETS IN KAMPALA

Tenders are invited from competent firms and or individuals for the management, control and main tenancy of the following markets in Kampala.

Nakawa Market.

Nateete Market.

Kamwokya Market.

Nalukolongo Market.

CONDITIONS:

Tender documents are at the City Hall, In the office of the Secretary to the Kampala District Contracts Committee ,Room B114A,at a non- refundable fee of Ug.Shs.100,000/= (Uganda Shillings one hundred thousand only) per set of documents.

All Companies currently owing money to Kampala City Council for running of markets will be disqualified.

Each tender application must be accompanied by the following:

The 20006- 20007 income Tax clearance certificate (original)

A certified True copy of incorporation by the Registrar of companies.

A valid Trading License for 2007

The Postal Address and physical location of the firm/company.

Security to the form and the amount to be specified in the bid document.

The original council receipts (s) for the purchase of the documents must be submitted with the Tender documents properly sealed in an envelope clearly marked on top “Tender for the management control and maintenance of markets” addressed to:-

THE SECRETARY
KAMPALA DISTRICT CONTRACTS COMMITTEEE

4. Abidder may quote or bid for one or more markets, but each market must be quoted for separately on its own independent set of documents.

5. The Contracts Committee shall not be bound by the highest or any bidder at all.

6. The successful bidder shall be required to execute an agreement with City Council of Kampala for the Management, control and Maintenance of the market.

7. Bidders may obtain further information from the Head of Procurement and Disposal Unit/Secretary .Contracts Committee. In the Procurement and Disposal Unit, Room B114A first floor at City Hall.

8. The Tender Documents must be hand delivered and receipt thereof acknowledge by the office of the Secretary, contracts Committee.

9. The closing date for the receiving the bids shall be on the 20^th April 2007 at 11:00 a.m. and thereafter the opening of the bids shall take place.

10. Bidders are invited to attend the opening of the bids which will take place in the City Hall Contracts Committee Room B114A.

11. Any marking or writing on the envelope containing the bids indicating where the bid documents are coming from will lead to the disqualification of the bidder.

12. No bid shall be received or accepted after 11:00 a.m. on the 20^th day of April, 2007 or thereafter.

The Plaintiff Company made this application which is P EXH. 2

18^th.04.2007

THE SECRETARY CONTRACTSCOMMITTEE,
KAMPALA DISTRICT
P.O.BOX 7010
KAMPALA

Dear Sir,

RE: APPLICATION FOR TENDER FOR THE MANAGEMENT CONTROL
AND MAINTAINANCE OF MARKETS IN KAMPALA.

Reference is made to the above subject matter, which was advertised in both New vision and Monitor papers looking for the Companies/Firms to manage your markets on your behalf were of the above Firm have taken interest to bid for Nakawa Market.

We are proposing to offer Shs; 21,300,000/= (Twenty One Million Three Hundred Thousand Shillings Only) per Month including VAT.

We are hoping our application will be put under your consideration

Yours faithfully,

…………………………..

MWESIGYE FRANCIS

MANAGING DIRECTOR.

For: Nakawa Market Vendors Ltd.

There was a letter of acceptance dated 3rd April 2008 which is D EXH 1

The Ag. Town Clerk

City Council of Kampala

P.O. Box 7010

KAMPALA – UGANDA

RE: LETTER OF ACCEPTANCE

We have received with thanks your letter of offer dated 26^th March 2008, which we received on Wednesday 2^nd April 2008, for the Management and Control of Nakawa Market; in Nakawa Division.

We are privileged to write to you to confirm that we are ready and in position to handle the tender to all stakeholders’ satisfaction.

We pledge to fulfill the requirements as will be outlined in the contract agreement.

We once again thank you for choosing us, NAKAWA MARKET VENDORS ASSOCIATION to serve the vendors of Nakawa Market.

Yours sincerely,

Paddy Sentamu Joseph

CHAIRPERSON

c.c. His Worship the Mayor – Kampala

c.c. Her Worship the Deputy Mayor – Kampala

c.c. The Deputy Town Clerk – KCC

c.c.The Ag. Director of Finance – KCC

c.c. The Chief Internal Auditor – KCC

c.c. The City Advocate - KCC

c.c. The Secretary Contracts Committee – KCC

c.c. The LC III Chairperson – Nakawa Division

c.c. The D/RDC Nakawa Division

c.c. The Senior Principal Assistant Town Clerk – Nakawa Division

PW IIIwasMWESISIGYE FRANCIS, who stated as follows,

The Managing Director of the Plaintiff company in this matter and I swear this witness statement in that capacity.

That there was an Advertisement in the paper calling for The TENDER FOR MANAGEMENT, CONTROL AND MAINTENANCE OF MARKETS IN KAMPALA .

That pursuant to the abovementioned advertisement Tenders were invited from competent firms and / or individuals for the management , control, and maintenance of the following markets in Kampala.

1. Nakawa market

2. Nateete market

3. Kamwokya market

4. Nalukolongo market.

That on the 18^th April 2007 our Company NAKAWA MARKET VENDORS ASSOCIATION LTD applied for the above-mentioned Tender To The Secretary Contracts Committee Kampala District.

That the conditions were very clear as follows,

Tender documents are at the City Hall in the office if the Secretary to the Kampala District Contracts Committee Room B114A, at a non-refundable fee of Ug. Shs, 100,000/= (Uganda shillings one hundred thousand ) per set of documents.

All Companies currently owing money to Kampala City Council for running of markets will be disqualified.

Each tender application must be accompanied by the following;-

The 2006-2007 income tax clearance certificate (Original)

A certified True copy of a certificate of incorporation by the Registrar of Companies.

A valid trading license for 2007.

The postal address and physical location of the firm /Company.

Bid security in the form and amount to be specified in the bid document.

The original council receipts for the purchase of the documents must be submitted with the tender documents properly sealed in an envelope clearly marked on top “Tender for the management, control and maintenance of markets “ addressed to :- The Secretary Kampala District Contracts Committee, P.O Box 7010,Kampala.

That the Plaintiff company NAKAWA MARKET VENDORS ASSOCIATION LTD was the rightful winner of the tender to manage Nakawa Market having fully discharged all the requirements as prescribed under the tender Advertisement as exhibited in the Minute FPA 1 .6/16/ 2008 which was approved by The Chief Internal Auditor Report as per resolution (i) and (ii) and The Deputy Mayor informed the committee that the Auditor’s queries were answered and the status was that the management of the Market was handed over to M/s Nakawa Market Vendors Association Ltd on 23^rd March, 2008.

That however, on 7^th April, 2008 an injunction stopping the award was issued but this was now invalid and it was decided that at this juncture, members observed that the City Advocate should have this matter properly documented indicating the procedures undertaken and it was decided that this would give a clear explanation as to why Council handed over the Market to vendors.

That it was also decided that arising out of the above observation, it was members’ considered view that a technical report showing the status quo of the market be availed to Committee.

That it was Recommendedthat the City Advocate submits to Committee a technical report concerning the status of Nakawa Market.

That the Plaintiff company NAKAWA MARKET VENDORS ASSOCIATION LTD claims against the defendant a prayer for a declaration that the plaintiff was the rightful winner of the tender to manage Nakawa Market having fully discharged all the requirements as prescribed under the tender Agreement that was awarded on the 26^th March 2008 by the defendant ‘s predecessor Kampala City Council and prays to be allowed to manage Nakawa Market .

That the Plaintiff company NAKAWA MARKET VENDORS ASSOCIATION LTD was awarded a tender to manage Nakawa Market by Kampala City Council on the 26^th March 2008.

That by a letter dated 3^rd April 2008 written by the plaintiff company to the defendant, the plaintiff company accepted the tender.

That the Plaintiff Company took out a Performance Bond with M/s TROPICAL AFRICA BANK LTD of Ug. Shs 17,892,000/= for the management and control of Nakawa Market under Contract No. KDCC 8/36/2007 .

That the Plaintiff company NAKAWA MARKET VENDORS ASSOCIATION LTD paid an advance to The Council of Kampala Shs. 42,000,000/= to Stanbic Bank, Lugogo Branch vide receipt No. 0061391 issued by The City Council of Kampala on Account No. 014006091370.

That in H.C.C.S No. 204 of 2008 NAKAWA MARKET VENDORS ASSOCIATION V PADDY SENTAMU, RUGUMAYO BAGUMA AND HAWA BIRUNGI a Consent Judgment/Decree/order was entered whereby it was confirmed that the plaintiff was awarded a tender to manage Nakawa Market as a limited liability Company and it fully discharged all the requirements as prescribed under the Tender Agreement that was awarded on the 26^th March 2008.

That in breach of the law and in contempt of court Judgment /Consent Decree and the plaintiff’s Memorandum and Articles of Association, the defendant has failed to comply with the Court Consent Judgment /Decree/order in H.C.C.S No. 204 of 2008 and has continuously failed to ensure that the said Market is peacefully handed over and managed by the plaintiff company as was ordered by court.

That the Plaintiff Company NAKAWA MARKET VENDORS ASSOCIATION LTD states that there has always been a consent Judgment in this matter and The Executive Director of KCCA in a letter dated 18^th July 2011 confirmed that the said market ought to be handed over to M/S NAKAWA MARKET VENDORS ASSOCIATION LTD.

That there was a Notice to show cause issued by The High Court in HCCS NO. 204 of 2008 dated 22^nd December 2011 which was dully served upon the KCCA. A warrant to the Bailiff to give vacant possession of Nakawa Market was also served upon KCCA. As well several letters have been written to The Executive Director KCCA requesting them to hand over the said Market but to no avail.

That by a Court Order of His Worship John Arutu dated 19^th April 2011 stated that the plaintiff company was free to access Nakawa Market .

That The Deputy Resident Commissioner in Charge of Nakawa Division received this order and he wrote to The Senior Principal Town Clerk Nakawa taking possession of Nakawa Market that KCC was taking over possession of Nakawa Market but only for a period of two months and then hand it over to the Contractor (Tenderer) as per the court ruling.

That in her letter dated 18^th July 2011 The Executive Director KCCA Mrs. Jennifer Musisi stated that vacant possession of the Market should be made in accordance with the Court Order dated 21^st day of June 2011 in H.C.C.S NO. 204 of 2008.

That Since the Consent Judgment / Decree has never been set aside or appealed against it is still binding and all the orders of The Registrars of The High Court Commercial Division have never been set aside or appealed against.

That the defendant acknowledged the plaintiff’s claim vide a letter dated 30^th April 2009 written by The Ag Principal Asst. Town Clerk /Nakawa Division Abner Besigye to The Town Clerk Kampala City Council.

That in a letter dated 3/7/2009, THE TOWN CLERK wrote to The Senior Principal Assistant Town Clerk Nakawa Division cancelling the above mentioned tender.

That there has always been a consent Judgment in this matter and The Executive Directorof Kampala Capital City Authority in a letter dated 18^th July 2011 confirmed that the said market ought to be handed over to M/S NAKAWA MARKET VENDORS ASSOCIATION LTD.

That M/S NAKAWA MARKET VENDORS ASSOCIATION LTD filed H.C.C.S NO. 135 OF 2010 to demand that the defendant allows it to manage Nakawa Market.

That the Defendant has failed to hand over the said market to M/S NAKAWA MARKET VENDORS ASSOCIATION LTD without any lawful cause.

That KAMPALA CITY COUNCILwassubstitutedwithKAMPALA CAPITAL CITY AUTHORITY as the Successor under KAMPALA CAPITAL CITY AUTHORITY ACT in a Ruling made by His Lordship Justice W.M Musene dated 5^th March 2013 .

That the Defendants have no good defence to the action in H.C.C.S NO. 135 of 2010 NAKAWA MARKET VENDORS ASSOCIATION LTD V KAMPALA CAPITAL CITY AUTHORITY which has a very high prospects of success.

On Cross examination he stated as follows,

He knows Paddy Sentamu. He stated that his rolewasto be The Managing Director of Nakawa Market Vendors Association Ltd and he was is to oversee the daily running of the company. He stated that the Company fulfilled the requirement of the tender .He stated that the contract was indefinite. He stated that the contract was indefinite and it had no time limit. The Company was to pay Shs 21m/= per month as KCC told them to pay Shs 21m/= per month . He stated that a security bond of 7% was required by PEX IV which appears at p 32 of The Trial Bundle and Case Scheduling Memorandum. It provides for the presentation of a performance bond for the contract sum of UgShs255,600,000/= that is the value of the tender. He stated that they gave KCC the performance bond which is Document PEX V which provides for the Performance Bond. He stated that the vendors in the market have never had any elections to his knowledge and there were no leaders in the market before KCC took over the management of the market.

On Re -examination the witness stated as follows,

That he confirms whathe stated in his statement. He confirmed the Company’s Letter of application marked as Annexture PEX 2 . He also confirmed the amount indicated at page 32 (PEX 4) the letter of award per annum. He confirmed that account which KCC tried to liquidate is where the performance bond had been paid and it still intact.

DEFENCE CASE

DW1 Musinguzi Robert Raikees who testified as DW1 this witness who stated as follows,

He stated that he started working with the defendant Authority on 01^st April 2014 as Manager, Revenue Collection in the Directorate of Revenueof Revenue Collection and he has been working as such since.

As a Manager, Revenue Collection his roles included the following:-

Revenue mobilization

Development of a client centric atmosphere to support revenue mobilization

Building relationships with key stakeholders

Building processes to support revenue mobilization

Capacity Building for staff

Nakawa Market falls within his realm of roles.

He stated that he has he had studied the defendant’s available records regarding the Plaintiff Company and Nakawa market with t. These records show thatshowing that a Nakawa Market Vendors Association was awarded a tender to manage Nakawa Market on 26^th March 2008 with t.

The records further show that the tender award was at fact being accepted by letter of acceptance dated 3^rd April 2008 signed by one Paddy Sentamu Joseph and Edward Rugumayo and . The records also show a performance bond from Tropical Bank Ltd was secured in regard to the said contract but that due . to

The records also show that however due to the iinternal wrangles involving Paddy Sentamu, Edward Rugumayo & Others on one hand and the plaintiff company on the other which culminated in High Court Civil Suit No. 204 of 2008 between the Plaintiff company and Paddy Sentamu & and two 2 others, no contract relating to the management for the said market was ever signed with the defendant Authority or its predecessor in title to grant any party the right to manage the market yet it was a mandatory requirement for .

tThe internal wrangles and the dysfunctioning within functions in the plaintiff company and the tender awarded escalated and alsoto such an extent that it spread to the activities in the market among the vendor’s. This continuous wrangling culminated in the office of The Deputy Resident District Commissioner, Kampala Nakawa Division warning and advising the defendant about the eminent insecurity and chaos in the market. Refer to letter dated 3^rd May 2011 by the Deputy Resident District Commissioner, Kampala Nakawa Division.

The said internal wrangles continued to hinder the operations of the market and following the advising ce of Deputy Resident Commissioner, Kampala Nakawa Division the defendant and on the recommendation of the defendant’s own Contracts Committee of the defendant Authority, KCCAto re-entered Nakawa market which was done on 14^th July 2011 and2011 and that this has was the position to to-date. This witness continued to manage and control the said market.

confirmed that Thethe records in the custody of the defendant also showed that neither the plaintiff companyPlaintiff Company nor Nakawa Market Vvendors Association has ever paid any money in respect of management fees of Nakawa Market to the defendant aor its predecessor in titlend that .

He stated that he was well aware that knows that the KCCA Defendant is was conducting the affairs of Nakawa Market in accordance with its mandate under The Market Act Cap. 94.

He blamed the The defendant Authority was not a party to H.C.C.S No. 204 of 2008 and as such cannot be bound by the consent judgment reached therein.

Markets in Uganda are very volatile and have potential of causing insecurity if not well handled. The defendant Authority is spearheading the process of the creation of a unified vendors’ organization involving all stakeholders in the market and once this is done the defendant Authority will grant management rights to that organization.

The plaintiff company for has spearheading ed and instigating ed the infighting and brawls not only in the market but also among its own membership and stated that the plaintiff company is thuswas majorly responsible for the chaos and general lawlessness prior to the takeover of the market by the defendant which saw that due to the .

The internal wrangles of the plaintiff company, the potential for insecurity in the market, the non-payment of the market dues and fees and , the absence of a written contract to manage the market clearly divestthen it had to re- enter the plaintiff company or the right to seek the orders sought in this suit.the market sand manage it. This witness thus justified

tThe defendant’s was thus justified in taking overtakeover of the management of Nakawa market.

On Cross examination the witness stated that he joined KCCA on the 1^st April 2014 and he was never part of the former Kampala City Council. As an employee of the Authority, it is his duty to study the history of some of issues that are still outstanding regarding the issues of clients such as his one. When asked about his witness statement he read it and stated that the events in paragraphs 6,7,8,9,10,11& 12 took place before he was enrolled as a staff of KCCA . The KCCA inherited former KCC. As per PEX 13, it is a letter dated 3/5/2011 regarding Nakawa Market (reads paragraphs 1 and 2)

This witness reiterated that he did He did study the a ruling, it is in which a consent judgment was entered (PEX 7) - it is a consent judgment between the plaintiff and some other parties. (Reads paragraph 1) it stateswhich was to the effect that that the applicant/ plaintiff was had been awarded a tender to manage Nakawa Market as a limited liability company but when on to state that this position was not based on the fact on record for the tender award was mistakenly offered to Nakawa Market vendors Association and not the plaintiff ..

He admitted that PEX 13 was written by a recognized post in the authority. It is a genuine letter within the record he found.

He stated that KCCA re-entered Nakawa Market on 14/7/2011 as per my paragraph 9 of my statement. It did so as far as I can remember to take by force the market which was its avert by bloodshed. KCCA is to date managing the market. The two months elapsed (That is as per 3/5/2011) but up to now KCCA has never handed back the market to the plaintiff. According to paragraph 2 of the letter KCCA has not handed over the market to the new contractor. KCCA is not in default even if it is now December 2014. The said PEX 13 was copied to several offices including Markets Vendors Association And Market Vendors Ltd. He does not recall seeing any other letter making and an extension of the two months referred to PEX13

PEX 11 is a letter by The Executive Director KCCA he has seen and it reads. It is addressed to Chairman Nakawa Vendors Association. The letter was on record at KCCA.

For Emphasis the Letter of The Executive DirectorP EXH 11 stated as follows,

REF. ED/KCCA.MKT

18^th July 2011

The Chairman

Nakawa Vendors Association

P.O. Box 700

Kampala

RE: TERMINATION OF CONTRACT FOR MANAGEMENT AND CONTROL OF NAKAWA MARKET.

Reference is made to the above.

This is to inform you that the Kampala Capital City Authority Contracts Committee on the 14^th of July 2011 terminated Nakawa Market Vendors Association’s contract to control and manage Nakawa Market.

You are hereby requested to give vacant possession of the Market to Kampala Central City Authority, in compliance with the aforesaid decision and the court order dated 21^st day of June 2011 in H.C.C.S No. 204 of 2008, with immediate effect.

J. SsemakulaMusisi

EXECUTIVE DIRECTOR

c.c. The Lord Mayor – KCCA

c.c. Resident city Commissioner- Nakawa

c.c. Deputy Resident City Commissioner – Nakawa

c.c. The Chairman LC III – Nakawa

c.c. Regional Police Commander – Kampala

c.c. Division Police Commander – Jinja Road

c.c. City Advocate – KCCA

c.c. Director Finance – KCCA

The witness stated that he studied the Nakawa Market issue through its file. Paragraph 2 of the letter was complied with by KCCA taking over the market and KCCA is still managing the market. KCCA has reorganized Nakawa market and this was in cognizance of PEX 13. KCCA has not handed over the market to the plaintiff company as they have not received any money from the plaintiff company as management fees for Nakawa Market or its predecessor in title.

KCCA has not arrested or charged anybody for loss of revenue. KCCA is still reorganizing the market as per my statement in paragraph 13 although it has not communicated to the contractor, the plaintiff company that they are still reorganizing Nakawa market.

As per PEX 6, payment of 42m /= was made to KCC/KCCA. It has not been refunded to the one who paid it.Paragraph 10 of my statement refers to payment of management fees and PEX 13 does shows what it was for.

His witness statement in paragraphs 5 and 6 shows the events of 26/2/2008 and 3^rd April 2008 and during that period he was not in KCC by then

On Re-examination he stated as follows,

KCCA is not bound by the recommendation of the RDC as given in PEX 13. The Executive Director wrote on 18/7/2011 seeking vacant possession of Nakawa Market from Nakawa Vendors Association. This is as per PEX 11. The letter states that KCCA was to take over the market with immediate effect. PEX 7, is a consent judgment which KCC/KCCA was not a party to. Before April 2014, he was not in KCCA but his source of information is availed files within KCCA. The plaintiff company has never requested for refund of the money mentioned in PEX 6

SUBMISSIONS

We wish to emphasize that Mr. Kintu Monday PW 1 The Former Deputy RDC Kampala in charge of Nakawa Division –in charge of The President in charge of monitoring Government Programmes - testified on behalf of the plaintiff Company

We submit that under S.73 (i) of The Kampala Capital City Authority Act The Deputy or Resident City Commissioner is the representative of The President as recognized under S.73(1),(2),(3),( 4) .

His testimony Corroborates that a letter of Mr. Abner Besigye –dated 30^th April 2009 which is already an Exhibitin The Trial Bundle and the case scheduling Memorandum. see The Letter by AbnerBesigyeP.62 of The Trail Bundle and Case Scheduling Memorandum.

We also submit that Mr. Francis Kakuru Mpeirwe The former Principal Legal Officer of the former City Council of Kampala testified as PWII –about the contract which is enforceable under S.85 KCCA Act, He testified that as a former Principal Legal Officer of the former City Council of Kampala who used to sit on The Contracts Committee.

The Court accepted him as a competent witness despite the objection of counsel for the defendant. We wish to refer to the Ruling dated 1^st July 2014 made by his Lordship Peter Adonyo.

Mr. Mugangaizi Robert Raikes DW I The Manager of Revenue Collection in Kampala Capital City Authority was the only witness for the defence. His testimony was not corroborated by any other witness. He only came into the service of KCCA on the 1^st April 2014 after the tender in question had been awarded to the Plaintiff Company .He stated that the records also show a performance bond from Tropical Bank Ltd was secured in regard to the said contract.

We submitMy evaluation of this witness testimony vis a vis that of the other witnesses is that this witness is believable for he was the only one who refrerred to the actual process which was undertaken in the bid process not concluded under the terms of the bid thus making the that Mr. Mugangaizi Robert Raikes DW I The Manager of Revenue Collection in Kampala Capital City Authority clearly confirmed the Letter of The Executive Director of KCCA which clearly stated thatKampala Capital City Authority Contracts Committee on the 14^th of July 2011 terminated Nakawa Market Vendors Association’s contract to control and manage Nakawa Market. She requested the members of Nakawa Market Vendors Association to give vacant possession of Nakawa Market to Kampala Capital City Authority, in compliance with the aforesaid decision and the court order dated 21^st day of June 2011 in H.C.C.S No. 204 of 2008, with immediate effect.

We submit that she clearly in her letter acknowledged the court consent order dated 21^st day of June 2011 in H.C.C.S No. 204 of 2008 which was adduced as Exh. P. VII .

We wish to state that the other aspects of the testimonyMr. Mugangaizi Robert Raikes are basically hearsay. On the Hearsay evidence of Mr. Mugangaizi Robert Raikes and the fact that his testimony was not corroborated by any other witness from KCCA we wish to rely on the following authorities and cases .

Hearsay refers to testimony given in court by a person other than the one who perceived it. As a general rule hearsay is inadmissible. And this draws from section 63 of the Evidence Act, which explicitly provides that oral evidence must be direct. Oral evidence must be direct.

The rule against hearsay is stated as follows: ”A statement made by a person not called as a witness which is offered in evidence to prove the truth of the fact contained in the statement is hearsay and it is not admissible. If however the statement is offered in evidence, not to prove the truth of the facts contained in the statement but only to prove that the statement was in fact made it is not hearsay and it is admissible”- Justice De Silva

In Uganda hearsay evidence is provided for under Section 59 (b) of The Evidence Act. S. 59 of The Evidence Act admits direct evidence and anything that is left out amounts to hearsay. The idea behind admitting direct evidence is that it is often the best evidence as compared to hearsay evidence. Hearsay evidence may be made orally or in writing

“Oral evidence must, in all cases whatever, be direct; that is to say:-

……………………………..

if it refers to a fact which could be heard, it must be the evidence of a witness who says he or she heard it.”

So essentially then what determines whether evidence is hearsay or not is going to be pegged around the purpose for which the statement is given.

Read the case of Subramanium v Public Prosecutor (1956) WLR 965. And the facts of this case were as follows: The appellant was charged and convicted of being in possession of firearms without lawful excuse. In his defence, he asserted that he was acting under duress in consequence or a result of threats uttered to him by Malayan terrorists. When he attempted to state the contents of the threats, he was overruled by the judge. He appealed against conviction arguing that the judge should actually have listened to what the import of the threat was. And of course the judge would have argued that if he was allowed to say what the terrorists had told him that would be hearsay. The court of appeal held that the conviction had to be quashed because what the terrorists told the appellant should have been admitted as original or direct evidence. It would have shed light on subsequent actions of the appellant.

What is hearsay as in the case of Myers v DPP 1964 2 All ER 881.The appellant in this case was charged and convicted of receiving a stolen motor vehicle. He was in the business of buying wrecked motor vehicles for repair and resale. The chief prosecution witness was the person in charge of the records department of the relevant motor vehicle factory. He testified that every time that a car was manufactured a workman would note down the engine number and the chassis number of the car amongst other details and these would be marked on some card. He also testified that the cylinder head number would be indelibly struck on the cylinder head block so as to be inerasable. The card would then be microfilmed and stored. At the trial the microfilms were produced on oath by the witness and schedules were prepared from this microfilm. The schedules showed that the cylinder block numbers of the car in question belonged to the car allegedly stolen. The appellant was convicted on the basis of this evidence. The court of appeal affirmed the conviction and the appellant appealed to the House of Lords. The House of Lords held that the trial court and the court of appeal improperly admitted hearsay evidence in the form of the microfilm and Lord Reid at page 884 stated: “The witness would only say that a record made by someone else showed that if the record was correctly made a car had left the workshop bearing three particular numbers. He could not prove that the record was correct or the numbers which it contained were in fact the numbers on the car when it was made.”Lord Reid ends his statement by saying:”This is a highly technical point but the law regarding hearsay evidence is technical and I would say absurdly technical“

The other case that it would be a good thing to look at just to illustrate how hearsay presents itself, is the case of Patel v Comptroller of Customs [1965] 3 All ER 593. The appellant here imported from Singapore into Fiji some coriander seeds shipped in bags. He correctly engrossed (filled) the customs import entry form and on investigation at arrival five bags of what he had imported were found to be contained in within another outer bag. The outer bag of these five bags was marked with the appellant’s trade name but it had marked on it “Produce of Morocco”. In the important entry form the appellant had filled that the coriander was a product of India. So in respect of the five bags that had “Produce of Morocco”, the appellant was charged and convicted in making a false declaration in a customs import form, on a customs import entry. And we are saying that he had stated that the seed originated from India when in fact it originated from Morocco.On appeal, it was held that the evidence of the writing on the bag was inadmissible. It was hearsay. And this was because the court could not ascertain that in essence the coriander seed had actually come from morocco even though the bags were marked “Produce of Morocco”. There were actually saying nobody knew who and when those markings on the bags, Produce of Morocco, were made. And essentially then nobody could speak to them testifying to the fact that the particular coriander seed had originated from Morocco. So they could not be the basis of conviction for making a false entry because the person who wrote them could not be called to vouch for the truth.

The other case that would illustrate the same point is Junga v R (1952) AC 480 (PC). The accused was charged and convicted with the offence of being armed with the intent to commit a felony. The police witness gave evidence at the trial, saying that they had been told by a police informer of the alleged attempted offence. The informer was not called to give evidence and his identify was not revealed. The accused was convicted. On appeal it was held that the trial magistrate had before him hearsay evidence of a very damaging kind. Without the hearsay evidence the court below could not have found the necessary intent to commit a felony and that being the case the Court of Appeal allowed the appeal against conviction.

Another case is the case of Tenywa v Uganda (1967) EA 102(U). The accused was accused of having stolen a bicycle. The bicycle was seized by police officers acting on this information. On examination the bicycle was found to have a forged number plate. The accused was convicted of the offence but appealed and on appeal it was held that the police report from Kampala suggesting that the original number on the bicycle was altered was hearsay. It should not have been admitted. Because essentially there was nobody to say this was the number.But just to say that it has been changed, even saying that what has been found is what was. Because essentially the person that marked the number on the bicycle was not called to give evidence.The learned trial magistrate was wrong in law to have admitted in evidence the report alleged to have been obtained from Kampala, which suggested that the original number of the (stolen) bicycle had been altered. That piece of evidence was hearsay and should not have been admitted… unless the expert who had examined the bicycle had testified before the court and been cross-examined on the point as to how he arrived at his conclusion.

Inthe case ofMagoti s/o Matofali v R (1953) EACA 232.“A plan of the locus … was made and produced in evidence by a police corporal. Various points on the plan are marked with letters and it bears a legend showing what these points represent… as to what each point represented he merely said ‘I got the information from Antonia, (P.W. 2), as to positions and ownership.’ ‘This, of course, was merely hearsay and his evidence should have been supported by the evidence of the witness Antonia to the effect that she had, subsequent to the event, pointed out to the corporal the places where the various incidents, to which she had testified, had taken place.”

In R v Gutasi s/o Wamagale (1936) 14 EACA 232“We note that the statement made by the appellant (Ex.P.1) to Mr. Harwich, Superintendent of Police, was admitted, although the two interpreters who had carried out a double interpretation were not called as witnesses. Without their evidence this statement was strictly inadmissible since Mr. Harwich could only speak to have taken down what he was told by the second interpreter.”

Relating these authorities to the instant case we wish to state that DW1 Musinguzi Robert Raikes who stated as followsthathe started working with the defendant Authority on 01^st April 2014 as Manager, Revenue Collection in the Directorate of Revenue Collection could not testify properly about the events that happened in 2008 when he was not working with the former City Council of Kampala. His evidence according to the authorities quoted herein above is hearsay evidence and is not admissible. No other competent witness has been called by KCCA to counter the evidence of Mr. Francis KakuruMpeirwe The former Principal Legal Officer of the former City Council of Kampala testified as PWII . It would have been better if the defendant called Mrs. JennifferMusisi to testify about why they terminated the defendants Tender however she was not called because it is alleged that KCCA re-entered the Market on 14^th July 2011 on the recommendation of its contracts committee and in accordance with its mandate under The Markets Act Cap 94 Laws of Uganda . Since it is in dispute whether KCCA took the right step The Executive Director ought to have been called as a witness to clarify. The termination is based on the decision of the Contracts committee on the 5^th July 2011 as per S. 19 (d) and(h) of The KCCA Act. It is alleged that KCCA Contracts Committee is the only Authority entity that has the prerogative to ward and terminate all contracts as per S. 17 (2)( c) of The Local Governments ( Public Procurement and Disposal of Public Assets ) Regulations 2006 . We have had no evidence from any Contracts Committee member to counter the evidence of Mr. Francis Kakuru Mpeirwe the former Principal Legal Officer of the former City Council of Kampala testified as PWII who used to sit on the Contract Committee of the former City Council of Kampala and as earlier submitted the evidence of Mr. MUGANGAIZI ROBERT RAIKES DW1 is hearsay evidence.

We refer to the case of Mayambala Mustafa and Others V KCCA Miscellaneous . Cause No. 60 of /2012 Mayambala Mustafa & Others V Kcca where Justice Benjamin Kabiito quashed the actions by KCCA for setting up a taxi management committee that was set up as being ultra vires the KCCA Act and Court declared its decisions illegal and invalid.to be not applicable in the instant matter for no contract was produced in court as issued or signed between the parties in this dispute as was one of the requirements of the tender terms.

On the contrary for the plaintiff PW IIMr.FRANCIS KAKURU MPAIRWE who was The Former Principal Legal Officer in the former City Council of Kampala testified that there was an Advertisement in the papers calling for The TENDER FOR MANAGEMENT, CONTROL AND MAINTENANCE OF MARKETS IN KAMPALA and that pursuant to the abovementioned advertisement Tenders were invited from competent firms and/or individuals for the management, control, and maintenance of the following markets in Kampala.

1. Nakawa market

2. Nateete market

3. Kamwokya market

4. Nalukolongo market.

And that on the 18^th April 2007 the Company NAKAWA MARKET VENDORS ASSOCIATION LTD applied for the above-mentioned Tender to the Secretary Contracts Committee Kampala District. He further confirmed that the Plaintiff company NAKAWA MARKET VENDORS ASSOCIATION LTD was the rightful winner of the tender to manage Nakawa Market having fully discharged all the requirements as prescribed under the tender Advertisement as exhibited in the Minute FPA 1 .6/16/ 2008 which was approved by The Chief Internal Auditor Report as per resolution (i) and (ii) and The Deputy Mayor informed the committee that the Auditor’s queries were answered and the status was that the management of the Market was handed over to M/s Nakawa Market Vendors Association Ltd on 23^rd March, 2008. On cross examination he stated that in 2007, his role in the predecessor council was that the was an Advocate in The City Advocate’s office by virtue of which he sat on the contract’s committee which awarded contracts together with the City Advocate. He stated that knows the matter in respect of the instant matter. He confirmed that in paragraph 6 of his witness statement that the plaintiff company fully discharged its obligation under the tender. The requirements were in the newspapers. He stated that the Contracts Committee confirmed that the plaintiff company was not indebted, and had a clean record, a valid license, and was a registered company, and had cleared all taxes due, income tax clearance certificate was also a requirement. He stated that the applicant for the tender was to have original council receipts for purchase of the tender documents.

The witness stated that the exact role was to give legal advice to the committee as a city Advocate. He confirmed that the tender committee of KCC then made an award. He confirmed that the plaintiff made a performance bond with Tropical Bank Ltd and he confirms that he looked at it when he was still at The City Council. When shown EX PV appearing at P. 33 of The Trial Bundle he confirmed that it is the Performance Bond paid by the Plaintiff Company. It was taken out by the plaintiff company managers. The plaintiff’s company names are reflected in the bond. He maintained that it was the plaintiff company which took out the performance bond. He stated that there was no reason why KCCA to date has not headed over the management of the market to the plaintiff. He stated that by the time he left KCC, there was a certain group which had imposed itself who was managing the market and he did not know the composition of the group. He stated that the plaintiff company to his knowledge filed a suit against the said group. When Shown PEX VII he stated that he was very conversant with the details of the case. On Re- examination he stated that housed to sit on the KCC Contracts Committee. It awarded the contract to the plaintiff company. There was a group causing confusion. The contracts committee never awarded a contract to that group as it never applied for the tender. The plaintiff applied for the tender “Nakawa Market Vendors Association Ltd” did apply and it was awarded the tender. He stated thatthe plaintiff should be allowed to manage the market as it lawfully won the tender and fulfilled the terms of the tender as per the details of the award. He stated that to the best of my knowledge KCC has not refunded to the plaintiff company the advance money it paid. He stated that he is aware that KCCA took over the liability of KCC. When recalled on the 16/12/2014.He stated that he was a principal legal officer and a Deputy City Advocate till 2011 when he retired. He recalls the advert which was passed out by KCC. The advert to manage Nakawa Market and others specifically clarified that the companies applying must be a registered company with a certificate of Registration accompanying the application tender. The tender for Nakawa Market was advertised and Nakawa Market Vendors Association Ltd made an application on 18/7/2007 and The Contracts Committee of KCC perused its application and other and the Nakawa Market Vendors Association Ltd was awarded the tender to manage the market.

The minutes of the tender committee was tendered as PEX 3 and he confirm the said minutes as those of the contracts committee to which I was a member. After the award, the said company names was forwarded to the council and the plaintiff dully paid the initial payments of Shs 42m/= to KCC as per PEX6 in the names of the plaintiff, Nakawa Market Vendors association Ltd, it has never been refunded to that company. His comment was that if one states that the contract not been awarded is that it is not true. The contract was awarded and the fees paid. If any person stated so he would be telling a very bad lie as the minutes are clear and the Town clerk’s letter awarding the tender is also on record. He stated that he left KCCA in May 2011. By that time KCCA had not cancelled the tender award. He was in the legal department of KCC. He was conversant of the change of legal status of KCC to KCCA. Then the law applicable was the Local Government Act which was replaced by the KCCA Act and the said Act bound KCCA to take up all obligations, liabilities and assets of KCC .The change of status took place while I was still in the Legal Department. He testified that he would recommend that KCCA must take up all liabilities of former KCC which awarded the tender to the plaintiff and KCCA would have taken over that responsibility straight away under the Act. He stated that is an association called Nakawa Market Vendors Association. The tender was awarded to Nakawa Market Vendors Association Ltd and an association which did not meet the requirements would not be qualified. He categorically stated that there could not be two entities with similar names registered as reservation of names is normally done when one applies to register a company. He was very emphatic that the letter of award was addressed to M/s Nakawa Market Vendors Association. There is a big difference between Nakawa Vendors Association and Nakawa Market Vendors Association Ltd, one is not a legal entity. See PEX 4. As per PEX 5, the performance bond was executed in the favour of Nakawa market Vendors Association Market vendors Association though it is not clear. The plaintiff company is not referred to in the performance bond. KCC/KCCA has never refunded the 42m/= the plaintiff company paid and to my knowledge, I am not aware whether the plaintiff company has ever demanded for a refund. Looking at PEX 3, PEX 4 and PEX 5, the tender was awarded to Nakawa Market vendors association Ltd but the word “Ltd” was inadvertently omitted. I cannot recall how many companies applied for the tender .On Re-examination he stated as follows ,

The minutes are of the council confirming the decisions of the contracts committee. By mentioning only Association and omitting the words “Ltd” would not change anything. In reality the tender was awarded to Nakawa Market Vendors Association Ltd. Nakawa Market Vendors Association Ltd paid the Shs 42m/=. It was the one who applied for the tender and even paid the performance bond which has never been vacated unless if it was done after 2011 when he left KCC/KCCA.

We humbly submit here that the plaintiff has discharged the burden of proof..In law a fact is said to be proved when Court is satisfied as to its truth. The general rule is that the burden of proof lies on the party who asserts the affirmative of the issue or question in dispute. When such a person adduces evidence sufficient to raise a presumption that what he asserts is true, he is said to shift the burden of proof: that is, his allegation is presumed to be true, unless his opponent adduces evidence to rebut the presumption. The standard of proof is on a balance of probabilities.

Second, the parole evidence rule. This rule is to the effect that evidence cannot be admitted (or even if admitted, it cannot be used) to add to, vary or contradict a written instruments. In relation to this case , it means that where a document has been reduced to writing, neither party can rely on evidence of terms alleged to have been agreed, which is extrinsic document, that is, not contained in it.

We have already extensively submitted about the claw of contract hereinabove and how the defendant admitted that it awarded a tender to the plaintiff. In law, when we talk of a contract, we mean an agreement enforceable at law. For a contract to be valid and legally enforceable there must be: capacity to contract; intention to contract; consensus and idem; valuable consideration; legality of purpose; and sufficient certainty of terms. All these have been proved by the plaintiff in this case. The element which converts an agreement into a legally enforceable contract being the intention of the parties to enter into legal relations and thereby bind themselves to carry out the agreement.

There was a clear evidence of consensus ad idem; the contract, consideration and the agreementwhich are theessentials of a valid contract.

From the evidence adduced it was the Contracts Committee of the then City Council of Kampala through, KCC would award contract. In the performance of its functions, the Committee had to conform to the standards established by Section 91 (7) of the Local Governments Act, Cap. 243.. The matter was subjected to competitive bidding. There is evidence that the plaintiff participated in the bidding process. They won the bid. The Plaintiff’s facts are that the Defendant advertised a tender for the management of the Nakawa Market The Newspapers in 2008 . The Plaintiff applied and was awarded the tender by the Defendant. The Plaintiff accepted the offer for the award of the said tender. The Plaintiff paid a consideration of Uganda shillings 42,000,000 /= to the Defendant The summary of the relevant facts is that the Plaintiff claims is that the contract described above entered into by the parties was legal and valid and its termination was wrongful and illegal for which the Plaintiff seeks compensation. The documents in support of the Plaintiff’s case and in support of the Defendants defence were agreed to and listed in the joint scheduling memorandum.

The agreed issues for determination are set out in the Trial Bundle and the Joint Scheduling memorandum.

We submit that the Defendant advertised an invitation to interested parties a revenue collection tender for the management, control and maintenance of Nakawa Market in a nationally circulating newspaper which the Plaintiff responded to. The Plaintiffs bid was considered successful and the Defendant made an offer of the tender to the Plaintiff who accepted the same. All the above culminated into an agreement and an implied contract and the Plaintiff thereafter was ready to commence on the performance of its obligations under the contract. We further submit that there was evidence of an offer made to the Plaintiff, a duly registered company under the laws of Uganda by the Defendant, and the acceptance of the offer by the Plaintiff and receipts to show payment of the consideration agreed upon. The Defendant duly and without reservations received and enjoyed payments made to it by the Plaintiff under the contract .The payments remitted by the Plaintiff to the Defendant under the contract amounted to Uganda shillings 42, 000,000/=. This evidence of a legal and valid contract and it follows that there was a legal and valid contract between the parties and the court should find as such.

In addition to the above requirement, it is clear that Section 1 (2) The procurement of the Plaintiff’s contract did not comply with the PPDA Act and regulations made there under and under the provisions of The PPDA Act, there was a legally binding contract for the management of Nakawa Market. As well The Local Governments (Public Procurement and Disposal of Public Assets) Regulations 2006 which provides that a letter of the acceptance or other communication in any form conveying acceptance of the bid that binds a procuring and disposing entity to a contract with the bidder.

Under the provisions of Section 55 of The Public Procurement and Disposal of Public Assets Act 2003, there is evidence on record to prove that The Contracts Committee of the Defendant approved the contract and therefore the contract was not in violation of the Public Procurement and Disposal of Public Assets Act of 2003.

We rely on The Markets Act Cap 94 laws of Uganda whose preamble provides that it is an Act to provide for the establishment and management of markets. Section 1 (1) thereof deals with establishment and control of markets. It provides that no person or authority other than the administration of a district, a municipal Council, or a town Council shall establish or maintain a market. Under section 1 (2) the administration of the district may establish and maintain markets within the area of its jurisdiction and shall control and manage such markets or assign the control and management in such person or authority as it may deem fit except that in urban areas markets shall be established, maintained and controlled by the municipal or town Councils established in the area..

Section 55 provides that all public procurement and disposal shall be carried out in accordance with the rules set out in the Act and any regulations and guidelines made under the Act.

A reading of The Markets Act Cap 94 Section 1 (2) provides that the :

"The administration of a district in, the establishment and maintainmaintenance of markets within the area of its jurisdiction and shallof control of a district or city administration rest with that authority which may delegate its function and manage such markets or vest their control and management in to such person or authority as it may deem fit and in this particular case, the defendant had opted for any capable entity to do the needful by advertising for that service. Thus when all is said and done, it would appear to me that ; except that in the urban areas mentioned in the schedule to the Act, markets shall be established, maintained, controlled and managed by the municipal Council town Council as the case may be established in the area."

since no contract signed between the plaintiff and the defendant, there could be no cause of action for though a tender award was initially issued out , it was first of all issued to the wrong entity which had not even applied to be considered for the award and secondly no signed contract signifying the contractual relationship between the parties before this court was ever produced in court to prove the existence of such a relationship as required under the provisions of the Public Procurement and the Disposal of Public Assets Act and Rules for the court to determine legally the dispute before on the basis of the indicative terms of relations as can be gleaned from the advert itself which laid out the several conditions which was to be fulfilled including that of signing a contract. Thus while several witnesses were brought in court to by either side, none found it fitting to prove that indeed the terms set out in the tender advert was fulfilled thus while it could be concluded from the evidence received on record including the settlement between the wrangling parties which was reduced into a consent judgment before this court, that only laid the foundation to the fact that the plaintiff was only eligible to have a contract signed between it and the defendant but since no such contract was ever signed and the defendant eventually took over the management of the market itself in accordance with the Market Act cited above, then there could be no legal remedy available to the plaintiff other than that of being refunded any of its monies it did pay to the defendant in its bid to meet the conditions set out in the tender advert by virtue of the decision of We wish to refer to tThe Supreme Court Judgement of in the case of CIVIL APPEAL No 7 OF 2010CHOGM Tour Agents 2007 Ltd Versus v Masaka Municipal Council Local Government Civil APPEAL No 7 of 2010 [An appeal from the judgment of the Court of Appeal at Kampala, (Mukasa-Kikonyogo, DCJ; Twinomujuni and CBN Kitumba, J.JA) dated 25^th day of November 2009, in Civil Appeal No. 32 of 2009}.

This held where it held that a refund ought to be made in accordance with as follows Regulation 57(4) of The PPDA Act for it requires that which provides that:

“ iIn all cases of cancellation of the bid procedure, the procurement and disposal unit shall inform the bidders who are still bound by their bids, and immediately release their bid security, and in case bids have not yet been opened, return them to the bidders unopened which should be the lawful thing to do for in this matter while an entity called .”

Regulation 57(4) enjoins procurement and disposal unit in all cases of cancellation of bid procedure, to inform the bidders who are still bound by their bids.

In the instant case KCC now KCCA has never refunded the performance bond of Ug. Shs 17, 892,000/= an advance to the then City Council of Kampala of Shs. 42,000,000/= to Stanbic Bank, Lugogo Branch vide receipt No. 0061391 issued by City Council of Kampala on Account No. 014006091370 all paid by the NAKAWA MARKET VENDORS ASSOCIATION LTD as consideration for the bid and the Regulation 57(4) of The PPDA Act which provides that:

“In all cases of cancellation of the bid procedure, the procurement and disposal unit shall inform the bidders who are still bound by their bids, and immediately release their bid security, and in case bids have not yet been opened, return them to the bidders unopened.”Applies to this case

We submit that NNakawa Market Vendors Association was awarded the tender bid to manage the Nakawa Market, there was no evidence that such an entity did bid let alone qualify to be granted such an award for it did make any application in response to the tender advert which required a legal entity to do so in addition to not meeting the conditions set out under did not submit its bids in accordance with the Bid Notice. The process was no longer ongoing. It was therefore, not a bidder within the meaning of the wordingthe provisions of in Section 3 of the Public Procurement and the Disposal of Public Assets Act (PPDA Act) which defines a bidder as a person intending to participate or participating in a public procurement or disposal proceedings with a bidder further being described being as a physical or artificial person intending to participate or participating in public procurement or disposal proceedings. Thus Nakawa Market Vendors Association which could not proven before this that it had indeed purchased or even submitted any bid forms as was required in accordance with the terms indicated in the bid notice was unfortunately the entity which received the tender award letter from the defendant though it had no rights as would have been accorded of a bidder under Regulations 57(4) and 140 (4) (c) of the PPDA Regulations. Thus Nakawa Market Vendors Association could not have acquired any legal right which could be enforceable for from the very beginning it was a non participant as far as the bid process and its clear terms was concerned.

On the hand while, it is evident that the plaintiff, M/s . It was Nakawa Market Vendors Association Ltd, did respond to the tender advert and even took steps in order to comply with the tender conditions set out in that advert it failed to prove to this Honourable Court that had a contract with the defendant for the management, control and maintenance of Nakawa Market for while it is clear that in its effort towards achieving the conditions set out in the tender advert that it relied on tender award letter which was in the names of Nakawa Market Vendors Association and even eventually a consent judgment before this court with personalities who were impediments to its interests as far as the tender award was concerned it did not prove that it had fulfilled all the conditions set out in that tender advert with the most glaring omission being the failure to produce in court a signed contract to that effect yet one of the clear terms of the tender advert was that the successful awardee was to enter into a contract with the defendant for the management of the market.

Therefore since the efforts of the never culminated into a signed contract as required under the PPDA Act which applies to such contracts between it and the defendant , then my finding is that its prayers before this court is in vain for while arguably it could state that it won the tender to manage, control and maintain Nakawa market, it failed to produced the contract document to prove its claim.

In my view therefore, made the bidding. We emphasize that Section 3 of thePPDA Act defines a bidder as a person intending to participate or participating in Public Procurement or Disposal Proceedings. Section 3 of The PPDA Act defines a bidder as a physical or artificial person intending to participate or participating in public procurement or disposal proceedings. Nakawa Market Vendors Association which had notpicked bid forms after the procurement process had closed and had not submitted its bids in accordance with the bid notice. Therefore, any rights accorded to Nakawa Market Vendors Association Ltd as the bidder under regulations 57(4) and 140(4)(c) of the Regulations did not apply to Nakawa Market Vendors Association Ltd .

Nakawa Market Vendors Association therefore, had no legal right which could be enforced. The Local Governments (Kampala City Council) (Markets) Ordinance Number 15 of 2006 only requires that a person maintains a market within the jurisdiction of the Council.

In aunt shell since in the instant case the parties agreed in the scheduling conference as follows that,

The plaintiff company applied for and was awarded a tender to manage Nakawa Market by the then City Council of Kampala on the 26^th March 2008. the plaintiff’s remedy would be in seeking to recover the funds it applied towards fulfilling the tender award terms for

By a letter dated 3^rd April 2008 written by the then City Council of Kampala to the plaintiff company accepted the tender.

The plaintiff paid a performance bond of Ug. Shs 17, 892,000/= an advance to the then City Council of Kampala of Shs. 42,000,000/= to Stanbic Bank, Lugogo Branch vide receipt No. 0061391 issued by City Council of Kampala on Account No. 014006091370.

The plaintiff applied for amendment of the plaint and it was allowed in HCT-00-CC-MA-052-2013 NAKAWA MARKET VENDORS ASSOCIATION LTD V CITY COUNCIL OF KAMPALA with leave of court and The Respondent/Defendant CITY COUNCIL OF KAMPALA in C.S No. 135 of 2010 was substituted with KAMPALA CAPITAL CITY AUTHORITY.

The current Defendant in C.S No. 135 of 2010 is KAMPALA CAPITAL CITY AUTHORITY which was substituted as the current Defendant is managing Nakawa Market.

Theonly question that remained for resolution by court was follows,

Whether the Termination of the Plaintiffs Tender was Lawful/Justified.

Whether the Plaintiff M/S NAKAWA MARKET VENDORS ASSOCIATION LTD should be allowed to Manage Nakawa Market in accordance with the tender awarded to it by the then City Council of Kampala on the 26^th March 2008.

Remedies available to the parties.

Counsel for the Defendant, cannot rephrase these issues at such a late stage since he already conceded that the plaintiff company applied for and was awarded a tender to manage Nakawa Market by the then City Council of Kampala on the 26^th March 2008 . It was therefore apparent that if there were fresh bids which the document on the face of it claims, the Council was unable to consider them due to a pending suit.

The question of tendering should be considered by the parties under The PPDA Act 2003. Section 2 (1) of PPDA Act provides that the PPDAthe Act Act provides that it shall applied y to all public procurement and disposals with even activities. Sections 55 and 98 (3) of the PPDA said Act provides emphasizing that not only was it applicable to all public procurements and disposal but that it that it shall takes precedence over all other enactments establishing tender boards or like mechanisms authorities inclusive of the defendant and the responsible procuring and disposing entities shall within 12 months after The Act come into force bring their practices in conformity with the Act. It further provided under Section 99 thereof repealed The Public Finance Procurement Regulations. The Act was to commence on a date to be appointed by the Minister by statutory instrument. Furthermore section 98 (2) provides that all legal obligations, proceedings and claims pending in respect of the Central Tender Board shall be continued or enforced by or against the authority in the same manner as they would have been continued or enforced if this Act had been in force at the time when the cause of action arose. Under statutory instrument 2003 No. 10 the Public Procurement and Disposal of Public Assets Act (Commencement) Instrument, 2003 the Minister appointed the 21st day of February 2003 as the date on which the Act came into force. Section 24 of The PPDA Act provides that tender boards in the case of local governments mentioned in section 92 to 95 of the Local Governments Act shall be a procuring and disposing entity.

We humbly submit that consequently considers award of such tenders as is in relations to the instant matter.

at the time the contract in the instant case was executed Section 55 of The Public Procurement and Disposal of Public Assets Act 2003 applied to local governments and The City Council of Kampala was among them. Section 55 provides that all public procurement and disposal shall be carried out in accordance with the rules set out in the Act and any regulations and guidelines made under the Act.

The action of the Defendant KCCA implied that it did comply with the regulations and the Act to invite bids from the public and award the tender in accordance with the law from Nakawa Market Vendors Association Ltd. Furthermore The Public Procurement and Disposal of Public Assets Regulations, 2003 Regulation 2 thereof provides that the regulation shall apply to all public procurement and disposal activities.

The Markets Act Cap 94 Section 1 (2) provides that:

"The administration of a district in the establish and maintain markets within the area of its jurisdiction and shall control and manage such markets or vest their control and management in such person or authority as it may deem fit; except that in the urban areas mentioned in the schedule to the Act, markets shall be established, maintained, controlled and managed by the municipal Council town Council as the case may be established in the area."

The mode of establishment of the market is not provided for. In scheduled urban areas markets shall be managed by the town or municipal Councils. With the advent of the KCCA Act Kampala is no longer a District and the Markets according to Government Policy are managed by the Vendors themselves. What is the Governing law for collections made from the markets? Market Act, CAP 94 2000 and As well we refer to The Markets ( Kampala Markets ) Byelaws made under S. 2 ( 2 ) of The Markets Act which defines ‘’ the markets authority ‘’ as the city council of KampalaAs well we refer to The Markets ( Kampala Markets ) Byelaws made under S. 2 ( 2 ) of The Markets Act which defines ‘’ the markets authority ‘’ as the city council of KampalaMarket (Kampala Markets) Byelaws SI 94/15. This is an Act that applies to all markets within the boundaries of the Kampala Capital City Authority. KCCA should like in the case of all other Markets allow Nakawa Market Vendors Association Ltd to manage Nakawa Market onthe agreed terms in the Tender Award.

In this particular case it was agreed during the Scheduling Conference as follows the plaintiff company applied for and was awarded a tender to manage Nakawa Market by the then City Council of Kampala on the 26^th March 2008 and by a letter dated 3^rd April 2008 written by the then City Council of Kampala to the plaintiff company accepted the tender. The plaintiff paid a performance bond of Ug. Shs 17, 892,000/= an advance to the then City Council of Kampala of Shs. 42,000,000/= to Stanbic Bank, Lugogo Branch vide receipt No. 0061391 issued by City Council of Kampala on Account No. 014006091370.The plaintiff applied for amendment of the plaint and it was allowed in HCT-00-CC-MA-052-2013 Nakawa Market Vendors Association Ltd V City Council Of Kampala with leave of court and The Respondent/Defendant City Council Of Kampala in C.S No. 135 of 2010 was substituted With Kampala Capital City Authority. The current Defendant in C.S No. 135 of 2010 is Kampala Capital City Authority which was substituted as the current Defendant is managing Nakawa Market. We once again submitthat thedefendant KCCA made admissions to the same effect in its WSD especially when the defendant’s counsel pleaded as follows,

In a WSD filed on the 11^th May 2010 Paragraph. 4 (i) of the plaint is admitted save that the defendant contends that whereas the award letter dated 26^th March 2008 was inadvertently addressed to Nakawa Market Vendors Association and not Nakawa Market Vendors Association Ltd. It was at all material times dealing with the plaintiff

Para.8 –The plaintiffs estopped from stating that it was never given possession of the Market by the defendant or that it does not manage it.

In a WSD filed on the 12^th June 2013. 2 Para .8- Para 4 (i) of the plaint is admitted save that the defendant contends that whereas the award letter dated 26^th March 2008 in advertently omitted the word “Limited” on the addressee the defendant was at all material times dealing with the plaintiff.

Para 9- The plaintiff is estopped from starting that it was never given possession of the Market by the defendant or that it does not manage it.

In a Second amended WSD filed on the 18^th September the second See Para.7 .4 (i) – The plaint is admitted save that the defendant contends that whereas the award letter dated 26^th March 2008 inadvertently omitted the word “Limited” on the addressee the defendant was at all material times dealing with the plaintiff.

Para. 8 – The plaintiff is estopped from stating that it was never possession of the Market by the defendant or that it does not manage it.

We wish to submit that Nakawa Market Vendors Association Ltd is an Incorporated company and is able to own property separately from its members Refer to Phillips V Abou-Diwan (1976) 2FRCR 24 (F.H.C); Bozak v. Ziregbe (1978) 4FRC.R.83; Shonibare V. Probate Registrar (1966) 2 A.L.R Comm. 389.

The members cannot directly interfere with the company’s property. It is also settled that a company can occupy business premises as a tenant See Kampala Cotton Co. Ltd v. Madhvani (1954) 21 EACA 129; Hindu Dispensary v. Patwan (1958) E.A.74 C.A (1966 (All N.L. R.8 (S.C.N).

A Registered company like Nakawa Market Vendors Association Ltd as a legal person and the company could in the instant case take action to enforce its legal rights to sue .

Under Regulations 5 (1) of The Local Governments (Public Procurement and Disposal of Public Assets) Regulations, 2006, the PPDA Authority is mandated to undertake compliance monitoring of procuring and disposing entities.

The former KCC conducted this procurement and disposal in a competitive, transparent, fair and non-discriminatory manner in accordance with the PPDA Act and Local Governments (Public Procurement and Disposal of Public Assets) Regulations, 2006under The Local Governments Act. KCC used the Standard Bidding Documents and Guidelines issued by the PPDA Authority. We submit that the former KCC was in compliance with The PPDA Act and Local Government Act and Regulations as it went through the proper procurement cycle in the entity namely, theAccountingOfficer, Contracts Committee, Procurement and Disposal Unit and User Departments. The former City Council of Kampala Contracts Committee and Procurement and Disposal unit awarded this Tender in accordance with the PPDA law.

Under The Markets Act it is provided as follows,

An Act to provide for the establishment and management of markets.

1. Establishment and control of markets.

1. No person or authority other than-

1. The administration of a district;

2. A municipal council;

3. A town council,

Shall establish or maintain a market.

2. The administration of a district may establish and maintain markets within the area of its jurisdiction and shall control and manage such markets or shall vest their control and management in such person or authority and it may deem fit; expect that in the urban areas mentioned in the Schedule to this Act, markets shall be established, maintained, controlled and managed by the municipal council or town council, as the case may be established in the area.

There are several implications, contradictions and implementation failures of Kampala Capital City Act 2010

There are several challenges surrounding the management of Kampala as a Capital City of Uganda. These challenges emanates from Political, Legal, Economical and Social issues. In this first presentation I wish to examine the challenges, implications and Contradictions in the new Kampala Capital City Act 2010. According to Rule 2 of Kampala Capital City Authority (Commencement 0 Instrument, 2011, The 1^st March 2011, was appointed as the day on which The Kampala Capital City Authority Act, 2010 came in force.

The plaintiffs witness PW II Mr. Francis Kakuru Mpairwe the former Principal Legal Officer a former employee of the former City Council of Kampala qualified as aplaintiff’s witness. He clearly testified that relating this case he used to work for the former City Council of Kampala as an employee and the current defendant is Kampala Capital City Authority .He stated that he was merely an employee of The City Council of Kampala.

He stated that on enactment of The Kampala Capital City Act No. 1 of 2011KCCA which came into force on the 1^st day of March 2011 according to,

S. 5 of KCCA Act provides that, there shall be an Authority to be known as Kampala Capital City Authority.

S. 5 (3) provides that the Authority is the governing body of the Capital City and shall administer the City on behalf of the Central Government.

S. 5 ( 3 ) provides that ,any enactment that applies to a District shall be subject ti this Act and with necessary modifications apply to the Authority .By implication therefore KCCA is a modified Local Government.

S.85 of The Kampala Capital City Act No. 1 of 2011 provides as follows,

Transitional Provisions

All rights assets, liabilities and obligations of any entity existing in the Capital City area immediately before the commencement of this Act are transferred to the Authority or the corresponding entity under the Authority

Any Ordinance, byelaw or any other instrument made by the Kampala City Council or any entity existing in the area of the Capital City shall, after the commencement of this Act, continue in force until revoked by the Authority or other corresponding entity under the Authority.

Any license or permit issued by the Kampala City Council or any other entity in existence in the area of the Capital City and in force immediately before the commencement of this Act shall continue in force for so much of the period as falls after the commencement of this Act.

The Authority may, on the effective date of its operations, accept into its employment, every person who, immediately before the coming into force of this Act, was an employee of the Kampala City Council and who was given an option to serve by the Authority, and has opted to serve as an employee of the Authority.

A person who opts to serve as an employee of the Authority under subsection (2) shall only be accepted as an employee of the Authority on a competitive interview basis and shall be employed on terms and conditions of service no less favorable than the terms and conditions of service to which he or she was entitled immediately before the coming into force of this Act.

For the avoidance of doubt, a person who is not accepted as an employee of the Authority is entitled to terminal benefits and pensions and the Government shall be responsible for the payment of all retirement benefits and severance pay payable as appropriate, to the employees referred to in subsection (4).

After the commencement of this Act, for any reference in any enactment existing immediately before the commencement of this Act to Kampala City Council, there shall be substituted a reference to the Authority.

Any person holding the office of Mayor or councilor, including members of local government, lower local councils under the Local Government Act, immediately before the commencement of this Act shall continue to hold office until the next general elections are held under this Act.

Under Section 17 (2) KCCA Act provides that the Executive Director shall be appointed by the President on the advice of the Public Service Commission. Indeed the Act in Section 19 outlines the functions of the Executive Director which are more less the same as those of the Chief Administrative Officers at Districts levels, as provided for under section 63 of The Local Government Act. Section 71, provides that there shall be for the Capital City, a Resident City Commissioner who shall be appointed by the President and under Section 73 it is provided that, there shall be such number of deputies or Resident city commissioners representatives in the capital city as the president may determine.

Section 61 of the KCCA provides that there shall be a Capital City Contracts Committee with members appointed by the Executive Director from among Public Officers and approved by the secretary to the treasury. The S .62 the Capital City Contracts Committee shall perform the functions specified under S. 27 and 28 of The PPDA Act. In absence of this committee, Section 69 provides that the secretary to the treasury may in consultation with the Permanent Secretary of the ministry responsible for the capital city, allows the Authority to use the services of the ministry responsible for the capital city or another contracts committee the treasury considers appropriate.

There was no evidence adduced that KCCA has appointed a Contracts Committee which could properly terminate the Tender awarded to Nakawa Market Vendors Association Ltd . It was specifically agreed at the scheduling conference that the plaintiff company applied for and was awarded a tender to manage Nakawa Market by the then City Council of Kampala on the 26^th March 2008. By a letter dated 3^rd April 2008 written by the then City Council of Kampala to the plaintiff company accepted the tender. The plaintiff paid a performance bond of Ug. Shs 17, 892,000/= an advance to the then City Council of Kampala of Shs. 42,000,000/= to Stanbic Bank, Lugogo Branch vide receipt No. 0061391 issued by City Council of Kampala on Account No. 014006091370.The plaintiff applied for amendment of the plaint and it was allowed in HCT-00-CC-MA-052-2013 NAKAWA MARKET VENDORS ASSOCIATION LTD V CITY COUNCIL OF KAMPALA with leave of court and The Respondent/Defendant CITY COUNCIL OF KAMPALA in C.S No. 135 of 2010 was substituted with KAMPALA CAPITAL CITY AUTHORITY. The current Defendant in C.S No. 135 of 2010 is KAMPALA CAPITAL CITY AUTHORITY which was substituted as the current Defendant is managing Nakawa Market.

In the circumstances therefore, at the moment, without any evidence that Kampala Capital City Authority does have a contracts committee properly constituted under Sections 61 or 69 of The Kampala Capital City Act 2010 it could not cancel NAKAWA MARKET VENDORS ASSOCIATION LTD the plaintiff company’s Tender . This therefore implies that any public procurement and disposal of public assets currently taking place in Kampala is illegal. And this has very serious legal implications.

In final conclusion therefore it is the finding of this court we pray that the Plaintiff’s claim against the defendant be allowed for the prayers for a declaration that the plaintiff was never the rightful winner on any of the tender to manage, control and maintain Nakawa Market for it failed to produce any contract to that effect as required not only in terms of the conditions set out in the tender advert but under the Procurement of Public Assets and Disposal Act as well having fully discharged all the requirements as prescribed under the tender Agreement that was awarded on the 26^th March 2008 by the defendant‘s predecessor Kampala City Councilinspite of the spirited arguments tendered in that direction for while and an order for the plaintiff to be allowed to manage Nakawa Market plus costs of the suit.

DEFENDANT’S WRITTEN SUBMISSIONS

BRIEF FACTS

The defendant advertised a tender for the management of Nakawa market.

The tender was awarded to Nakawa Market vendors Association by letter dated 26^th March, 2008.

The tender was accepted by letter dated 3^rd April, 2008 and a performance bond secured from Tropical Bank for the said contract

On this advice of the Deputy resident Commissioner, Kampala Nakawa Division and on the recommendation of the Contracts Committee of the defendant, the defendant reentered the Nakawa market.

Issues:

Whether the termination of the tender was lawful or justified

Whether the plaintiff should be allowed to manage Nakawa Market in accordance with the tender awarded by then City Counsel of Kampala on 26^th March 2008

What remedies are available to the parties?

PRELIMINARY

Counsel for the plaintiff has belabored the point that parties are bound by and cannot depart from their pleadings

While the above is the position of the law, counsel for the plaintiff forgets that amended pleadings are also pleadings

While it is true the above were agreed upon at trial, it is also true that they were agreed upon before the defendant sought and obtained the leave of court to amend its written statement of defence

Suffice to say that probably after the amendment of the defendant’s written statement of defence was allowed, the issues should have been revisited and reframed. But my Lord this court is not restricted or constrained by the issues framed in reaching a just decision

The essence of pleadings and the trial itself is not to suffocate the evidence but bring all the evidence before the same during its submissions

Further, counsel of the plaintiff has with great detail attempted to persuade this court to enter a judgment on admission arguing that the defendant in its pleadings had admitted the plaintiff’s claim.

To this my Lord, we have a short and clear response; before the hearing of the main suit, the plaintiff filed Miscellaneous Application No. 379 of 2010 wherein it inter alia sought judgment on admission to be entered against the defendant. This application was dismissed by this court with costs for lack of merit. No appeal was ever preferred by the plaintiff against that order.

Therefore, the arguments by the plaintiff’s counsel are with great respect redundant and merely aimed at hoodwinking court into reopening a matter it has already decided.

It is not hearsay when someone testifies as to the record available in his office. DW1 Mugangaizi Robert Raikes in paragraph 5 of his sworn witness statement stated that he studied the defendant’s available record. May be the plaintiff’s counsel should have put him to explain the records he had studied. This was never done. Besides, his evidence is supported by documentary evidence which has already been exhibited in court. PW1Kintu Monday William also testified regarding the records he found in the office of the deputy resident District Commissioner, Kampala, Nakawa Division.

My Lord, there is no law (or at least the plaintiff’s counsel has not cited any) that requires that the testimony of a single witness should be corroborated. The testimony of DQW1 Mugangaizi Robert Raikes was never contradicted even in cross examination. This evidence is actually supported by the documentary evidence already exhibited in this court.

DW1 Mugangaizi Robert Raikes established his foundation on why he had come to court as a witness in this matter, all markets in Kampala fall under his docket as the manager, Revenue Collection in the defendant Authority. Therefore the plaintiff’s argument that the defendant should have brought its Executive Director as a witness is with great respect groundless.

DW1 Mugangaizi Robert Raikes testified in paragraph 9 of his statement that the defendant had reentered Nakawa Market on the recommendation of the Contracts Committee of the defendant Authority. At no stage of the trial was there an issue as to whether the defendant has a Contracts Committee in place or not, not even during the cross examination of the defendant’s witness. This was never in issue. There was no way the defendant could have adduced evidence as to whether it has a Contracts Committee in place or not attempts by the plaintiff’s counsel at page 91 of the plaintiff’s submissions are at most “unsubstantiated from the bar”. We ask this court to disregard it.

Resolution of issues.

Whether the termination of the tender was lawful or justified.

My Lord, the defendant contends that the termination of the tender ad its takeover of the market was lawfull and justified to avert insecurity and chaos and to collect revenue from the same as it its legal mandate. Below is a summary of the justifying circumstances that necessitated the defendant the defendant to take over Nakawa market.

The defendant’s predecessor in title had tendered the market and several entities applied. It is also clear that athe letter of award of tender was given addressed to Nakawa Market Vendors Association which did not apply for the tender (Refer toas seen from exhibit Exhibit P4 ) andyet the Plaintiff went on to accept the same same was purportedly accepted by by its letter dated 3^rd April, 2008 written by the same Association (Refer to Exhibit D1), which Association also purportedlyand even eventually took out a performance bond relating to the said award. (Refer to Exhibit P5)

While the plaintiff had wanted court to believe that the above documents had been written by it, its witnesses ) which bond was eventually dishonoured for having different from the one issued by the bank concerned, later a clear distinction ought to be made between informed court in cross examination that Nakawa Market Vendors Association was different from and the Nakawa market Vendors Association Limited which is the plaintiff company and the said documents never referred to the plaintiff at all.

and while it would be It is also worth noting that the two entities eventually sorted out their differences, there was totally no iota of evidence adduced to proved that upon clarification that it was the plaintiff company which was lawfully the successful tender awarded a contract was thus then entered by the parties before this court which the plaintiff seeks to have enforced emphasizing that all the plaintiff’s witnesses especially PW3 Twinamasiko Gordon and PW4 Mwesigye Francis (who are directors of the plaintiff company) initially denied knowledge of Paddy Sentamu and Rugumayo Baguma, yet the plaintiff wanted to rely on Exhibit D1 (the letter of acceptance which had been written by the said dual) as its letter of acceptance of the tender award. It also turned out that Paddy Sentamu was not only a shareholder in the plaintiff company (refer to Exhibit D4 the articles and memorandum of the plaintiff company) but he was also a director and signatory to the plaintiff’s bank account. (refer to exhibit D2 the minutes of the board of directors meeting of the plaintiff company) and exhibit D8 the company resolution dated 9^th June 2008). The same document shows that Rugumayo Baguma had previously been a signatory to the plaintiff’s bank account.

In addition to the above, the plaintiff company filed HCCS No. 204 of 2008 against Paddy Sentamu, Rugumayo Baguma and Hawa Birungi.for KCCA was not a party to this suit. According to the consent judgment 9Exhibit P7) entered into by the parties in the said suit, it was indeed acknowledged that the plaintiff company had divisionism and it should be noted that the said contest judgment did not resolve the disputes between the parties thereto regarding the Nakawa market squabbles continued between them and these negatively affected the operations of the market.

aAlthough the advert inviting tenders for Nakawa Market emphasized as one of the conditions. Requirements that a successful bidder would be required to execute an agreement with City Council of Kampala. as seen from Refer to Exhibit P1. tThis was never donenot to be with the defendant seeming to have cancelled the award process for and it reverted the control, management and maintenance of Nakawa market to itself by virtue of . Therefore at that time, the defendant took over officer; there was no document of reference between the plaintiff and the defendant or between the defendant and any other person in relation to Nakawa Market. The contract would have specified the rights and liabilities of each party, the duration of the contract. For instance in cross examination when a question was put to PW3 Twinamasiko Gordon as to how long the alleged tender would run, he stated 5 years. He could not reveal his basis for the 5 years. On the other hand when the same question was put to PW4 Twesigye Francis he stated that the contract was to run indefinitely!

The defendant adduced evidence that from the available records, no revenue had ever been collected from Nakawa market from 2008 until the time when the defendant took over the management of the market. This means that a lot of revenue was lost by government due to the disorganization in the market. The attempt by the plaintiff to claim that they had paid some revenue to the defendant’s predecessor in title also fell short because not only was the payment not one specified as market management fees but it was also too little considering the period the plaintiff company purported to be in charge of the market.

There is abundant evidence on record clearly indicating that there was bound to be chaos and insecurity in Nakawa market if KCCA had not intervened and taken over its management. Exhibit P13 the letter of the then deputy resident District Commissioner Kampala in charge of Nakawa Division is a summary of this. The said letter warned of imminent insecurity and chaos in the market if the defendant did not take over the market. PW1 Kintu Monday confirmed the same position in his testimony in court.

My Lord, the defendant is under sectionSection 1 of the Markets Act Chapter ap 94 of the Laws of Uganda which vests it ed with the powers to do so.control and manage markets in Kampala. In the exercise of these powers, the defendant is supposed to ensure that markets are not a source of insecurity in the area, that revenue is properly and efficiently collected and also to ensure the smooth operation of the market.

The defendant under the said Act is vested with powers to delegate the management of such markets.

In light of the above enumerated facts pertaining to Nakawa market, it was indeed justified and lawful for the defendant to take over Nakawa Market to recognize the market and above all curb the imminent chaos and insecurity that would have certainly been perpetrated in the market by the plaintiff’s agents and other persons in the market and also to avert the continued loss of revenue as the defendant was not getting any management fees relating to Nakawa Market.

Whether the plaintiff should be allowed to manage Nakawa Market in accordance with the tender awarded by the then city Counsel of Kampala on 26^th March, 2008.

It is contended for the defendant the plaintiff is not entitled to be allowed to manage Nakawa Market.

Although it was consistently stated for the plaintiff that it had complied with all the requirements/conditions as per the advert, a keen examination of the evidene on record will show that the plaintiff is not entitled to anything as it was neither awarded the tender nor did it comply with the requirements under the advert. A close security of the evidence will reveal the following;-Thus that being the case the

The plaintiff’s claim in this court ought of fail for was never it failed to prove that upon being awarded the tender it entered into a lawful awarded the tender by the then City Council of Kampala. To the contrary the tender was awarded to Nakawa Market Vendors Association. It was admitted by the plaintiff’s witnesses that Nakawa Market Vendors Association is different from the plaintiff itself. Whether it had capacity or not is not a question for this suit as the said Association or its members were not made a party to this suit.

The letter of acceptance and the performance bond were not made by the plaintiff company. Instead they were made by Nakawa Market Vendors Association. The plaintiff company did not even labor to adduce any evidence perhaps to show that it was merely a mistake that the word “limited was included on all these documents.

There is no contract signed or not between the plaintiff and the defendant’s predecessor in title. Yet this was a cardinal condition in the advert. Under what terms would court order the defendant to handover the market to the plaintiff since there was no contractual relationship between with the defendant defendantand the plaintiff in the first place..

F

A careful perusal of exhibit P2 (the alleged application for tender) will even suggest that the same was most probably made long after the tender process. Otherwise what would account for it bearing the defendant’s stamp of 10^th July, 2009? The award was made on 26^th March, 2008. The said “bid” letter was delivered over a year later and to a wrong recipient!

Even if we were to apply and stretch the simple principles of the law contract i.e. offer, acceptance, consideration etc, no person apart from probably the plaintiff in this matter would come up to the conclusion that there was a contract implied or otherwise between the plaintiff and the defendant’s predecessor in title.

There was an attempt by the plaintiff to label exhibit P3 as the minutes of the tender/contracts committee during the meeting and at page 76 of its submissions. This is a falsehood. PW2 Francis Kakuru Mpairwe confirmed this in cross examination. The minutes were not those of the defendant’s Contracts Committee.

Without prejudice to the foregoing, inally, from the testimony of witnesses in this court which tended t point to the serious administrative disorder occasioned by the issue of award of tenders for the management, control and maintenance of markets generally this court is of the view is that for there to exist appropriate accountability it is not proper for persons who operate market stalls to also be at the same time managers of such markets for there cannot be ruled out conflict of interests as manifested in this particular case and which the court has taken judicial notice of in regards to the recurring fights for doing the same we submit for the defendant that given the volatility of markets in Uganda generally , the internal wrangles and divisions which do indeed cloud the public good such a venture would entail thus this court discourages such ventures and would rather in the interest of tranquility, specialization and resource enhancement encourage the separation of market stall ownership and operations from its management and control for doing otherwise will continually eschewed perennial wrangling as seen from the instant matter where the individual members of the in the plaintiff company apparently , it is not fit to be allowed to manage Nakawa market

It was admitted by PW3 Twinomasiko Gordon that Paddy Sentamu and Rugumayo Baguma were members of the plaintiff company, connived to that however, they hijacked the tender process for the contract to manage management of the Nakawa Market from the company in which they are members more likely for selfish interests.

As indicated in the testimony of Mugangaizi Robert Raikes, the defendant is currently spearheading a process of the creation of a unified vendors’ organization involving all stakeholders in the market. This is because the plaintiff company divides opinion in the market and is majorly responsible for infighting and brawls in the market. In the unlikely event that this court were to impose the plaintiff company in the market, it would be recipe for disaster and chaos

The markets Act Cap 94 grants the defendant discretion in handling all matter relating to markets in Kampala. Courts are reluctant to interfere with the exercise of Statutory

Discretion has been exercised unlawfully or in breach of the rules of natural justice. This case does not fall under any of the said situationsIn regards to this issue I find that there was no contract awarded for the management, control and maintenance of Nakawa Market though the tender process was began in accordance with the provisions of the law it was never to be and can be brought to life were there still be any need to do so through the following up of proper procedure provided for in the relevant laws which would entail the calling up of fresh tenders and eventually ending up with appropriately signed contract .

6. What remedies are available to the parties?

The plaintiff seeks 3 remedies

A declaration that the plaintiff was the rightful winner of the tender to manage Nakawa market having fully discharged all the requirements as prescribed under the tender agreement that was awarded on 26^th March 2008 by the defendant’s predecessor Kampala City Council.

As already submitted infound in the issues 1 and 2 above, the plaintiff has not proved to this court that it had the legal it was the rightful winner of the tender to manage Nakawa market as it ; it has failed miserably to adduced incontrovertible evidence of a contract to that effect show that it complied with all the requirements of the advert; it has failed to indeed failed to show that it is one and the same with Nakawa Market Vendors Association (which was in accordance with the provisions of the PPDA Act thus it claims before this court must not made a party to this suit)

It should be noted there was no “tender agreement” between the plaintiff and the defendant; implied or otherwise

The plaintiff is thus not entitled to the declaration sought

1. An order for the plaintiff to be allowed to manage Nakawa Market

As already discussed in issue 2, for reasons enumerated therein, the plaintiff is not entitled to the said order.

2. Costs of the suit

In light of the defendant’s submissions above, the plaintiff has failed to prove its case and the same ought to beaccordingly.

6. Orders:

This suit is dis dismissed ed with costs to the Defendant with consequential orders that in view of the provisions terms of the PPDA Act and the rules under it, the defendant is hereby directed to refund to the plaintiff those funds which deposited during the tender process which never concluded and thus failed.

I do so order accordingly.

HENRY PETER ADONYO

JUDGE

6^th MAY, 2015.

We so pray

PLAINTIFF’S SUBMISSIONS IN REJOINDER.

My Lord we are filing these submissions in rejoinder notwithstanding our letter dated 6^th February 2015 wherein we raised the issue that the defendant’s counsel had failed to file his submissions late in this matter. Despite the objection that we all the same state that, having read through the submissions of the defendant in reply in this case, we have this to state in rejoinder.

FACTS

In our view the facts of this case should be represented as follows the Plaintiff is a Limited Company whose address for purposes of this suit is C/o M/s Semuyaba, Iga & Co. Advocates, Plot 65 Buganda Road, P.O. Box 12387, Kampala. The Defendant used to be called The City Council of Kampala and is urban authority in Kampala City but now is called Kampala Capital City Authority incorporated under S. 5 of KCCA Act which provides that, there shall be an Authority to be known as Kampala Capital City Authority. S. 5 (3) provides that the Authority is the governing body of the Capital City and shall administer the City on behalf of the Central Government. The Plaintiff’s claim against the defendant is for a prayer for a declaration that plaintiff was the rightful winner of the tender to manage Nakawa Market having fully discharged all the requirements as prescribed under the tender Agreement that was awarded on the 26^th March 2008 by the defendant‘s predecessor Kampala City Council and an order for the plaintiff to be allowed to manage NakawaMarket pluscosts of the suit.

The facts giving rise to this suit are as follows.

1. The plaintiff company was awarded a tender to manage Nakawa Market by City Council of Kampala on the 26^th March 2008.

2. By a letter dated 3^rd April 2008 written by the Plaintiff to the defendant the plaintiff company accepted the tender

3. The plaintiff company paid an advance to The City Council of Kampala of Shs. 42,000,000/= to Stanbic Bank, Lugogo Branch vide receipt No. 0061391 issued by The City Council of Kampala on Account No. 014006091370.

4. In breach of the law and in contempt of court and the plaintiff’s Memorandum and Articles of Association, the defendant has failed to comply with the Court Consent Judgment/Decree/order in H.C.C.S No. 204 of 2008 and have continuously failed to ensure that the said Market is peacefully handed over and managed by the plaintiff company as was ordered by court.

5. The defendant has denied the Board of Directors of the Plaintiff Company and members of the plaintiff company access to the company’s Statutory Records regarding the said tender thereby denying the members of the plaintiff company information and full participation in the running of the said market.

6. In light of the foregoing, the plaintiff company avers that the company Articles and memorandum of Association have been and continue to be infringed upon and the company have suffered loss and damage for which the plaintiff company shall claim specials general, exemplary and punitive damages.

7. The defendant acknowledged the plaintiff’s claim vides a letter dated 30^th April 2009.

8. In a letter dated 3/7/2009, The TOWN CLERK wrote to The Senior Principal Assistant Town Clerk Nakawa Division cancelling the above mentioned tender.

We shall answer the defendant’s counsel’s submissions in this order.

PRELIMINARY

We reiterate our submissions earlier filed and reiterate the position that all parties to this suit are bound by their pleadings and cannot depart from them in the course of the Trial. We also rely on the authorities already cited in our earlier submissions.

We wish to state that much as the defendant was given leave to amend its pleadings, the plaintiff had also earlier on been allowed to amend its pleadings and sue KAMPALA CAPITAL CITY AUTHORITY and this case proceeded on those premises. During the scheduling conference, issues were agreed upon and a Trial Bundle was filed on the 28^th day of April 2014.

We invite this Honourable Court to address O.13r 1(i) CPR which states that issues only arise when a material proposition of law or facts is affirmed by one party and denied by the other.

We submit that once in the joint scheduling memorandum in para. 6, the parties to this case made a list of agreed facts or admissions, those points were no longer issues for Trial. These were the agreed facts or admissions.

1. The plaintiff company applied for and was awarded a tender to manage Nakawa Market by the then City Council of Kampala on the 26^th March 2008.

2. By a letter dated 3^rd April 2008 written by the then City Council of Kampala to the plaintiff company accepted the tender.

3. The plaintiff paid a performance bond of Ug. Shs 17, 892,000/= an advance to the then City Council of Kampala of Shs. 42,000,000/= to Stanbic Bank, Lugogo Branch vide receipt No. 0061391 issued by City Council of Kampala on Account No. 014006091370.

4. The plaintiff applied for amendment of the plaint and it was allowed in HCT-00-CC-MA-052-2013 NAKAWA MARKET VENDORS ASSOCIATION LTD V CITY COUNCIL OF KAMPALA with leave of court and The Respondent/Defendant CITY COUNCIL OF KAMPALA in C.S No. 135 of 2010 was substituted with KAMPALA CAPITAL CITY AUTHORITY.

5. The current Defendant in C.S No. 135 of 2010 is KAMPALA CAPITAL CITY AUTHORITY which was substituted as the current Defendant is managing Nakawa Market.

We invite this Honourable Court to look at O.13 r 6 CPR to the effect that once parties to a suit have agreed as to the questions of law or fact to be decided between them, they may state the same in the form of an issue and enter into an agreement in writing that……………

1. Some property specified in the agreement and in dispute in the suit shall be delivered by one of the parties to the other of them, or that other may direct, or

2. One or more of the parties shall do or abstain from doing some particular act in the agreement and relating to the matter in dispute.

O.13 r 7 CPR states that where the court is satisfied, after making such inquiry as it deems proper:-

a) That the agreement was duly executed by the parties.

b) ………………………..

c) ……………………….

It shall proceed to record and try the issue and state its finding or decision thereon in the same manner as if the issue had been framed by the Court, and shall, upon the finding or decision of such issue, pronounce judgment according to the terms of the agreement, and upon the judgment so pronounced a decree shall follow.

The abovementioned rules in the CPR coupled with our submissions earlier made on the effect of a scheduling conference memorandum and the case we cited of C.A No. 7 of 2003 Administrator General V. Bwanika James & Others holding that agreed facts and documents after the scheduling conference become part of the evidence on record and once admitted without contest they are treated as the truth and such admission disposes of that issue because the need for its proof or disproof would have been disposed of by the fact of admission. We also refer to the case of C.A No. 30 of 2013 Margaret Kato, Joel Kato V. Nuulu Nalwoga which affirmed the abovementioned decision and went further to observe that parties are bond by their pleadings and cannot depart from them.

Admissions can be in the pleadings or otherwise and in this case we have admissions of the defendant in the various correspondences, written statement of defence and in the scheduling memorandum.

We submit that a party is not allowed to approbate and reprobate once it has made an admission. This is because it is a common law principle of contract that one cannot approbate and reprobate. In law a person is not allowed to take the benefits under an instrument and disclaim the liabilities imposed by the same instrument. According to Oxford Dictionary of Law New Edition at pages 28 "appropriate and reprobate" is defined as to accept and reject. The author goes on to say that a person is not allowed to accept the benefit of a document and reject any condition attached to it.

In the case of LISSENDEN vs. C.A. V. BOSCH (1940) A.C. 412 per Lord Maugham at 417, 418, the House of Lords held that "it is equally settled in the law of Scotland as in England, that no person can accept and reject the same instrument." In short the doctrine of election or approbate and reprobate estoppels a person from accepting and rejecting the same instrument at the same time.

We rely on the case of Ben Byabashaija & Another vs. Attorney General (1992) 1 KALR 161 citing from Joshi vs. Uganda Sugar Factory (1968) EA 570 at 572 Spry JA which held that the issue was whether the defendant can call evidence where his written statement of defence was merely a general denial without raising any defence. It was held that the defendant would not be given leave to call evidence since in his written statement of defence there was no specific denial.

It is our submission in this case that the parties cannot be allowed to approbate and reprobate, the courts cannot be allowed cases to be fought at the whims and caprices of litigants.

The submission of the defendant’s counsel that in the written statements of defence it was allowed to amend it would change the admissions is unfounded as the defendant maintained its admissions in paragraph 7 if its written statement of defence filed on 11^th May 2010 and in paragraph. 8 of the amended written statement of defence filed on the 12^th June 2013 and in paragraph 7 of the second amended written statement of defence and finally the scheduling memorandum paragraph 6 thereof.

We invite this Honourable Court not to rely on Misc. Appl. No. 379 of 2010 because it was an interlocutory application made in this case before the Trial started and it was based on enforcement of HCCS No. 204/2008. In that application The Honourable Justice Irene Mulyagonja refused to grant a judgment on admission based on the consent judgment in HCCS No. 204/2008 because KCCA was not a party to that case. Even then the case was still being pursued against the then City Council of Kampala. The plaintiff applied for amendment of the plaint to substitute it with Kampala Capital City Authority and thereafter the matter proceeded for Trial as against KCCA and the admissions are those that took place in the pleadings and in the course of the Trial coupled with the various correspondences adduced in the Trail Bundle.

We invite this Honourable Court to look at the letter dated 30^th April 2009 Exh. 8 admitted during the scheduling conference. Mr. Abner Besigye the Ag. Principal Assistant Town Clerk/Nakawa Division wrote to the Town Clerk and related the findings surrounding the management of Nakawa market and found out as follows for emphasis – see P. 44 of the Trial Bundle. The letter states as follows,

“Following a thorough research on the issues surrounding the management of Nakawa Market. It was found out that the genuine group to manage the market was the Nakawa Market Vendors Association Limited and NOT Nakawa Market Vendors Association as the letter of award stated.

The following are the findings:

1. That it was the Nakawa Market Vendors Association Limited which had applied and consequently bided.

2. That the same limited Association paid the performance Bond as evidenced by the letter from the bank (copy attached).

3. That the initial payment to Nakawa Division of Shs. 42m was also paid by the same Limited Association (Copy attached).

4. That when the matter was taken to Court, it ruled in favour of the Limited Association whereby all parties had to go by the consent judgment earlier on agree upon (see attached).

The above evidence of a letter written by Mr. Abner Besigye the Principal Assistant Town Clerk / Nakawa Division therefore clarifies that Nakawa Market Vendors Association Limited is the rightful company that should have been awarded the tender to manage Nakawa Market.

DW1 Mugangaizi Roberts admitted that these are the records he found in the office, Mr. PW1 Kintu Monday William the then Deputy RDC Kampala in charge of Nakawa Division also admitted the existence of the same records PW2 Mr. Francis Kakuru the then Principal Legal Officer the City Council of Kampala also admitted the award of the Tender to Nakawa Market Vendors Association Ltd and that disputes the evidence of DW1 Mugangaizi Raikes who joined the City Council of Kampala later. His evidence is even not corroborated by any other staff of The City Council of Kampala.

Corroborating evidence is a requirement if you have a single witness. We rely of principle of corroboration. The legal meaning of corroboration as defined by books and cases is where the whole challenges emerge. According to J.D Heydon 1984 Evidence –Cases and Materials at P. 67 corroboration is evidence tending to confirm some fact of which other evidence is given. G.D Nokes Cockles on Cases and Statutes on Evidence at P. 382 states that corroboration is confirmatory or supporting evidence on a matter on which other evidence is adduced. Despite the two definitions one can still not make a conclusion on what corroboration is or entail. For that reason we look into the cases. The case of Rex v Baskerville 1916 2 K.B at P. 658 which held that “we hold that evidence in corroboration must be independent testimony which affects the accused by connecting him or tending to connect him with the crime. In other words, it must be evidence which implicates him with the crime, that is, which confirms in some material particular not only the evidence that the crime has been committed but also that the prisoner committed it.” Lord Reading C.J. The above was reiterated in the case of Mukungu v Republic (2003) A.H.L.R (KeCA 2003). “The word corroboration by itself means no more than evidence tending to confirm other. In my opinion, evidence which is (a) Admissible and (b) Relevant to evidence requiring corroboration and, if believed, confirming it in required particulars, is capable of being corroboration of that evidence and, when believed, is in fact such corroboration.”

Lord Hailsham. In DPP V Kilbourne from the cases and books we can confirm that corroboration is, a credible (relevant and admissible) evidence from an independent source which tends to support or confirm a credible (relevant and admissible) evidence that has been given or is yet to be given before a court and that it implicates the defendant and not to confirm the commission of a certain act. The last two form the essential facts or the facta probanda that corroboration must prove (that the accused did it and that the crime was committed.

The Executive Director Mrs. Jennifer Musisi who wrote the letter dated 18^th July 2011 Exh. P11 at p. 57 of The Trial Bundle to The Chairman of Nakawa Market Vendors Association requiring them , to give vacant possession of Nakawa Market to KCCA in compliance with the decision and the Court Order dated 21^st June 2011 in HCCS No. 204 of 2008 with immediate effect was not called to testify to deny her letter.

H.F. Morris on Evidence in East Africa P. 172-179 outlines several instances where corroborating evidence is required in The Evidence Act of Uganda.

The cancellation of the plaintiff tender by the defendant without evidence that The Contracts Committee of KCCA sat to pass that decision under SS .61, 62, 63, 64, 65, 66, 67, 68, 69 and 70 of The KCCA Act to terminate the tender of M/S Nakawa Market Vendors Association Ltd cannot be acceptable. The letter of The Executive Director dated 18^th July 2011 Exh. P11 at p.57 was to the effect that Nakawa Market should be handed over to KCCA by Nakawa Market Vendors Association in accordance with the court order of 21^st June 2011 H.C.C.S No. 204 of 2008. Kampala Capital City Authority was supposed to re-organize the market and hand it over to Nakawa Market Vendors Association Ltd the plaintiff company.

RESOLUTION OF ISSUES

1. Whether the termination of the tender was lawful or justified.

My Lord reply to the defendant’s submission the plaintiff contends that the termination of the tender for the management of Nakawa Market and its takeover was not lawful and justified as it was not to avert insecurity and chaos at the market. The justifying circumstances that are presented by the defendant are not tenable.

We submit on behalf of the plaintiff that the Defendant’s predecessor in title City Council of Kampala had tendered the market to Nakawa Market Vendors Association Ltd. We reiterate our submissions earlier filed to the effect that the letter of award of tender was given to Nakawa Market Vendors Association but in the written statements of defence the defendant was allowed to amend its written statement of defence and the fact that it would change the admissions is unfounded as the defendant maintained its admissions in para 7 if its written statement of defence filed on 11^th May 2010 and in para. 8 of the amended written statement of defence filed on the 12^th June 2013 and in para. 7 of the second amended written statement of defence and finally the scheduling memorandum para. 6 thereof.

We humbly submit that Plaintiff rightly Nakawa Market Vendors Association is different from Nakawa Market Vendors Association Ltd the plaintiff company and all the documents filed in the Trail Bundle referred to the plaintiff company .

We humbly submit that that all the plaintiff’s witnesses especially PW 1, 2, 3 and 4 all testified that the Tender of Nakawa Market was awarded to Nakawa Market Vendors Association Ltd. Twinamasiko Gordon PW 3 and PW4 Mwesigye Francis (who ware directors of the plaintiff company) all testified that they had a consent with Mr. Paddy Sentamu and Rugumayo Baguma in H.C.C.S No. 204 of 2008. That consent Judgement was exhibited as Exh. 7. In that consent Judgement it was agreed that Paddy Sentamu was a shareholder in the Plaintiff Company and was also a Director and signatory to the plaintiff’s bank account. The plaintiff company filed H.C.C.S No. 204 of 2008 against Paddy Sentamu, Rugumayo and Hawa Birungi. The consent judgment (Exhibit P7) that was entered into by the parties in the said suit acknowledged that the plaintiff company was awarded a tender to manage Nakawa Market.

The advert inviting tenders for Nakawa Market emphasized that one of the conditions/requirements of the tender was that all the applicants had to be Limited Liability Companies with a certificate of incorporation in order to be a successful bidder. The plaintiff company dully paid the tender fees as submitted in the submissions earlier filed by the plaintiff company.

My Lord for the plaintiff we humbly submit that Section 1 of The Markets Act Cap. 94 has never been amended in order to vest Kampala Capital City Authority with powers to control and manage markets in Kampala. This is because according to The Market (Kampala Markets) Byelaws made under The Markets Act Cap. 94 Rule 3 (a) ‘’ Market Authority “is defined as City Council of Kampala. We humbly submit that it is no longer the powers of Kampala Capital City Authority to manage markets. The defendant under the said Act is not vested with powers to delegate the management of such markets.

In light of the above and in light of the submissions earlier made in this matter Nakawa Market, it was not justified and lawful for the defendant to take over Nakawa Market and fail to hand it over to the Plaintiff.

2. Whether the plaintiff should be allowed to manage Nakawa Market in accordance with the tender awarded by the then City Counsel of Kampala on 26^th March, 2008.

On behalf of the plaintiff we contend that the plaintiff is entitled to be allowed to manage Nakawa Market because in the joint scheduling memorandum in para. 6, the parties to this case made a list of agreed facts or admissions, those points were no longer issues for Trial. These were the agreed facts or admissions.

1. The plaintiff company applied for and was awarded a tender to manage Nakawa Market by the then City Council of Kampala on the 26^th March 2008.

2. By a letter dated 3^rd April 2008 written by the then City Council of Kampala to the plaintiff company accepted the tender.

3. The plaintiff paid a performance bond of Ug. Shs 17, 892,000/= an advance to the then City Council of Kampala of Shs. 42,000,000/= to Stanbic Bank, Lugogo Branch vide receipt No. 0061391 issued by City Council of Kampala on Account No. 014006091370.

4. The plaintiff applied for amendment of the plaint and it was allowed in HCT-00-CC-MA-052-2013 NAKAWA MARKET VENDORS ASSOCIATION LTD V CITY COUNCIL OF KAMPALA with leave of court and The Respondent/Defendant CITY COUNCIL OF KAMPALA in C.S No. 135 of 2010 was substituted with KAMPALA CAPITAL CITY AUTHORITY.

5. The current Defendant in C.S No. 135 of 2010 is KAMPALA CAPITAL CITY AUTHORITY which was substituted as the current Defendant is managing Nakawa Market.

It is our submission in this case that the parties cannot be allowed to approbate and reprobate, the courts cannot be allowed cases to be fought at the whims and caprices of litigants.

The submission of the defendant’s counsel that in the written statements of defence it was allowed to amend it would change the admissions is unfounded as the defendant maintained its admissions in para 7 if its written statement of defence filed on 11^th May 2010 and in para. 8 of the amended written statement of defence filed on the 12^th June 2013 and in para. 7 of the second amended written statement of defence and finally the scheduling memorandum para. 6 thereof.

We submit that the Plaintiff Company NAKAWA MARKET VENDORS ASSOCIATION LTD was awarded the tender by the then City Council of Kampala and not Nakawa Market Vendors Association.

Nakawa Market Vendors Association is different from NAKAWA MARKET VENDORS ASSOCIATION LTD the plaintiff itself.

We humbly submit that the letter of acceptance and the performance bond can be explained in a sense that the defendant maintained its admissions in para 7 if its written statement of defence filed on 11^th May 2010 and in para. 8 of the amended written statement of defence filed on the 12^th June 2013 and in para. 7 of the second amended written statement of defence and finally the scheduling memorandum para. 6 thereof. We humbly submit that that is an admission in the pleadings. The plaintiff company can safely submit that it has enough facts and law to show that it was merely a mistake that the word “limited” was included on all these documents.

We reiterate our earlier submissions that there was a contract between the plaintiff and the defendant’s predecessor in title. This binds the current defendant as according to S.85 of The Kampala Capital City Act No. 1 of 2011 is a body corporate established under the Act. The Transitional Provisions

1. All rights assets, liabilities and obligations of any entity existing in the Capital City area immediately before the commencement of this Act are transferred to the Authority or the corresponding entity under the Authority.

2. Any Ordinance, byelaw or any other instrument made by the Kampala City Council or any entity existing in the area of the Capital City shall, after the commencement of this Act, continue in force until revoked by the Authority or other corresponding entity under the Authority.

3. Any licence or permit issued by the Kampala City Council or any other entity in existence in the area of the Capital City and in force immediately before the commencement of this Act, shall continue in force for so much of the period as falls after the commencement of this Act.

4. The Authority may, on the effective date of its operations, accept into its employment, every person who, immediately before the coming into force of this Act, was an employee of the Kampala City Council and who was given an option to serve by the Authority, and has opted to serve as an employee of the Authority.

5. A person who opts to serve as an employee of the Authority under subsection (2) shall only be accepted as an employee of the Authority on a competitive interview basis and shall be employed on terms and conditions of service no less favourable than the terms and conditions of service to which he or she was entitled immediately before the coming into force of this Act.

6. For the avoidance of doubt, a person who is not accepted as an employee of the Authority is entitled to terminal benefits and pensions and the Government shall be responsible for the payment of all retirement benefits and severance pay payable as appropriate, to the employees referred to in subsection (4).

7. After the commencement of this Act, for any reference in any enactment existing immediately before the commencement of this Act to Kampala City Council, there shall be substituted a reference to the Authority.

8. Any person holding the office of Mayor or councilor, including members of local government, lower local councils under the Local Government Act, immediately before the commencement of this Act shall continue to hold office until the next general elections are held under this Act.

Under the above-mentioned terms this Honourable Court can order the defendant KAMPALA CAPITAL CITY AUTHORITY to handover the market to the plaintiff company NAKAWA MARKET VENDORS ASSOCITION LTD since there was a contractual relationship created between the defendant and the plaintiff company. We hereby reiterate our earlier submissions in this matter.

We humbly submit that Exhibit P2 was properly addressed to The Secretary Contracts Committee Kampala District and there is enough evidence adduced by the plaintiff’s witnesses

PW 1. KINTU MONDAY-FORMER DEPUTY RDC

PW2. FRANCIS KAKURU MPAIRWE FORMER PRINCIPAL LEGAL OFFICER THE CITY COUNCIL OF KAMPALA

PW3. GORDON TWINOMATSIKO- DIRECTOR

PW4. MWESIGYE FRANCIS MANAGING DIRECTOR

To show that an application for tender was filed by the plaintiff company under the tender process that was advertised by the then City Council of Kampala. The award was made on 26^th March. 2008 to NAKAWA MARKET VENDORS ASSOCITION LTD.

We humbly submit that under the principles of the law contract i.e. offer, acceptance, consideration etc a contract implied or otherwise was created between the plaintiff and the defendant’s predecessor in title and it binds KAMPALA CAPITAL CITY AUTHORITY.

Exhibit P EXH P111 the minutes of the tender/contracts committee confirmed by PW2 Francis Kakuru Mpairwe confirmed the award of the tender process that was corroborated by PW 1 , 3 and 4 .

3. What remedies are available to the parties

We humbly submit that he Plaintiff Company is entitle to the remedies in the amended plaint and in the submissions as follows

1. A declaration that the plaintiff was the rightful winner of the tender to manage Nakawa market having fully discharged all the requirements as prescribed under the tender agreement that was awarded on 26^th March 2008 by the defendant’s predecessor Kampala City Council.

2. Costs of the Suit.

The plaintiff is thus entitled to the declarations sought herein above. We humbly submit that an order be made for the plaintiff to be allowed to manage Nakawa Market as in light of the plaintiff’s submissions above, the plaintiff company has proved it’s case and the same ought to be allowed with costs.

We so pray.