Attorney General v Alpha Gama Enginering Enterprises Limited (Civil Appeal 25 of 2021) [2024] UGSC 44 (28 November 2024)

THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA (CORAM: TUHAISE, MUSOKE, MUSOTA, MADRAMA & MUGENYI, ]]SC) CIVIL APPEAL NO.25 OF 2O2I THE ATTORNEY GENERAL APPELLANT VERSUS ALPHA GAMA ENGINEERING ENTERPRISES LTD .... RESPONDENT (Apryal agninst tlrc judgment of tlu Court of Appeal in Ciuil Apwnl No.54 of 20'14 before Egonda-Ntende, Barislnki Cheborion and Muzamiru Kibeedi, llA dclioered on 2ud July,2020) IUDGMENT OF PERCY NIG HT TUHAISE,ISC. I have had the benefit of reading in draft the |udgment of Madrama, JSC. I agree with his findings, decision, and proposed orders. Decision of Court Since all members of the Coram agree with the lead judgment of Madrama, JSC, the appeal substantially fails with the orders as proposed in therein. ->q day of .... .rQ 2024. Percy Night Tuhaise fustice of the Supreme Court 's- Dated at Kampala, this v6.^r^-o-isl

THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CIVIL APPEAL NO. 25 OF 2021 THE ATTORNEY GEN ERAL: : : : : : : : : : : : : : : : : : : : : : : : : : : :APPELLANT VERSUS ALPHA GAMA ENGINEERING ENTERPRISES LTD:::::RESPONDENT (Appeal from the decision of the Court ofAppeal (Egonda-Ntende, Cheborion and Kibeedi, IJA) in Civil Appeal No. 54 of2011 dated ?d July, 2020) CORAM: HON. LADY. TUSTICE PERCY NIGHTTUHAISE, JSC HON. LADY JUSTICE ELIZABETH MUSOKE, JSC HON. MR. JUSTICE STEPHEN MUSOTA, JSC HON. MR. JUSTICE CHRISTOPHER. MADRAMA IZAMA, JSC HOIT. LADY JUSTICE MONICA K. MUGENYI, JSC JUDGMENT OF ELI BETH MUSOKE, ]SC I have had the advantage of reading the judgment of my learned brother Madrama, lSC. For the reasons he has given, I, too, would find that the appeal subsLantially fails and make the orders that he proposes. Dated at Kampala this 2<t= day of . .N.+N Q. l:Asroz+. Elizabeth Musoke lustice of the Supreme Court

THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT I(AMPALA CryIL APPEAL NO. 25 OF 2021 [CORAM: TUHNSE; MUSOKE; MUSOTA; MADRAMA; MUGENYI, JJSCI ATTORNEY GENERAL APPELLANT ALPHA GAMA RESPONDENT VERSUS ENGINEERING ENTERPRISES LTD JUDGMENT OF STEPHEN MUSOTA, JSC I have had the benefit of reading in draft the judgment by my brother Hon. Justice Christopher Madrama, JSC. I agree with his analysis, conclusions and the orders he has proposed. Dated this 2et;, og 5nsv\r^Vr1w @ Stephen Musota JUSTICE OF THE SUPREME COURT ,rrtl.'"/) 2024

THE REPUBLIC OF UGANDA, IN THE SUPREME COURT OF UGANDA AT KAMPALA (C0RAM:TUHAISE, MUS0KE. MUSOTA, MADRAMA & MUGENYI, JJSC) CIVIL APPEAL NO 25 OF 2021 THE ATTORNEY GENERAL} APPELLANT 15 20 25 30 VERSUS ALPHA GAMA ENGINEERING ENTERPRISES LTD} RESPONDENT (Appeal against the judgment and orders of the Court of Appeal at Kampala by Hon. Justice Frederick Egonda Ntende J.A., Hon. Justice Barishaki Cheborion J.A., Hon. Justice Muzamiru Kibeedi, JA delivered on ?d July 20201 JUDGMENT OF CHRISTOPHER MADRAMA IZAMA, JSC This is a second appeal arising from the Judgment of the High Court, Commercial Division. The background to the appeal. is that the respondents to this appeal sued the Attorney General for Uganda shil.tings 340,458,,l,l0/=, VAT inctusive and interest thereon al 25%, together with general. damages for breach of contract and costs. Judgment was entered in favour of the ptaintiff against the Attorney General for Uganda shittings 5,605,6?0/= towards VAT payment, Uganda shittings 17,67t+ 628/= as special damages, Uganda shiLtings 10,000,000/= as general damages. lnterest was awarded on specia[ damages at 10% per annum from Sth September until. payment in futt. Secondty, interest on the general damages was adjudged at court rate from the date of Judgment til.l. payment in futt with costs of the suit to the respondent. The respondent, who was the ptaintiff, was aggrieved by the Judgment of the High court commercial. Division and appeal.ed to the court of Appeat against the whote of the decision. ln the Court of Appeal., the respondent raised 5 grounds of appeal. as fottows: 1 10

5 1. The learned triat judge erred in [aw and fact in fail.ing to award Uganda shittings 72,213,230/= being penatty on VAT paid by the appeU.ant to Uganda Revenue Authority. 2. The learned trial. judge erred in law and fact when he faited to award the appettant Uganda shittings 1t17,629,731/= being the val.ue of the variations under the revised contract. 3. The learned triat judge erred in [aw and fact in awarding the appettant a pattry sum of Uganda shittings 1'1,671t,628/= as special damages instead of unpaid contract sum of Uganda shittings 22L,073,853/=VAf inctusive ptus the vatue of the variations executed by the appettant under the revised contract. 4. The learned trial judge erred in Law when he faited to properLy evatuate the evidence on record as a whote and thus came to a wrong conctusion. 5. The learned triat judge erred in law when he awarded the Appettant interest of 10% per annum on special. damages instead of commercial rate of 25% per annum claimed in the ptaint. The Court of Appeat partiatty aLLowed the appeat, set aside the Judgment and orders of the High court and substituted it with orders of an award of special damages of Uganda shitl.ings 22L,838,ztfl /= to the respondent herein as the unpaid balance on account of the revision of the contract price. secondty, an award of interest was adjudged on that sum at the rate of lg% per annum from the date of fiting the suit in the High court tiu. payment in futt. Thirdty, the respondent was awarded 2f3,d'of the costs in the court of Appeat in view of the partial success of its appeat in the court of Appeat. The court of Appeal. affirmed the award of generaI damages of Uganda shitl.ings 10,000,000/= with interest at court rate from the date of judgment of the High court on 19th December 2013 titt payment in futt. The court of Appeat atso affirmed the award of costs in favour of the respondent in the High Court. 10 15 20 25 30 z

5 The Attorney GeneraI was aggrieved by the Judgment of the Court of Appeat and appeated against part of the Judgment and orders of the Court of Appeal. on the fottowing grounds:

1. The learned Justices of Appeat erred in law when they awarded speciat damages of Uganda shittings 224 838 237/=,VAT inctusive to Atpha Gama Engineering Enterprises Ltd.
2. The learned Justices of Appeat erred in law when they hetd that the triat judge erred when they retied on the final certificate in arriving at judgment. The Attorney General seeks for orders that the appeaL is al.l.owed and the dectarations and orders of the court of Appeat be set aside and for costs of the appeat to be provided for. At the hearing of the appeal,, the Attorney General was represented by the learned Assistant Commissioner, Mr. Richard Adrote, appearing with the learned State Attorney Mr. Frankl.in Uwizera. The respondent was represented by learned counsel Mr. Atex Candia, appearing jointty with learned counseI Mr. Atan Tumwesigye and learned counsel Mr. Akuku saviour Otikare. At[ counsel adopted their written submissions which had been fited under directions of the Registrar, as their address for and against the appeat respectivety and we reserved judgment on notice. Submissions of the Attorney General. ln the written submissions of the Attorney GeneraL, the generaL background of the dispute is that the respondent executed a contract with the Government of Uganda to construct regionaL offices for the Ministry of Justice and constitutionat Affairs in Arua at a contract price of Uganda shil.Lings 982,618,278/=. The case of the respondent was that the contract works was executed in accordance with the contract and compLeted offices were handed over to the Ministry of Justice and constitutionaL Affairs on 25th of Juty 2009. Prior to the compl.etion of the works, the respondent had appeated in writing in two separate letters dated 24th February 2009 and 1Oth March 2009 to Ministry representatives requesting for an upward 10 15 20 25 30

4 s adjustment of the contract price by 15%. This was from shittings 98t1,618,278/= to Uganda shittings 1,132,311,019/= VAT inctusive due to the rising costs of construction, materiats and fueL. The respondent asserted that at the time of the handover of the buitding, they had onty been paid Uganda shittings 751t,025,725/= and it demanded payment, but onty received 10 a further Uganda shitLing 110,050,tiL/=. The respondent further contended that they had been promised payment of the outstanding sum of Uganda shitl.ings 268,23t1,880/= but this sum has never been paid. The respondent atso contended that the appettant del.ayed to pay 18% VAT for the works and payment was effected after the defects tiabitity perrod of six months from 1s the date of handover of the premises resutting in Loss to the ptaintiff of Uganda shittings 72,213,230/= in penal,ties. 0n the other hand, the appettant's case was that the respondent was paid the futt vatue of the work done pursuant to the contract inctusive of VAT. The respondent acknowtedged some sums in a letter dated 26th of Aprit 2012. 20 The contract price of 98L,618,278/= was not a fixed contract sum but a provisional sum that remained so until. the finat account was issued. The learned triat judge made the various awards as stated above. The respondent was not satisfied with the judgment and appeated to the court of Appeat. The court of Appeat hetd that the respondent had not produced 2s sufficient evidence to prove its entitl.ement to VAT penatty refund in the sum of Uganda shittings 72,213,230/=. secondty, the court of Appeat faul.ted the triat judge for rel.ying on the final, certificate when it was an agreed fact that the contract price was varied to Uganda shittings 1,132,311,019/=. The court further revised the interest rate on the award of speciaL damages and 30 partiatty altowed the appeat. The Attorney Generat's counsel argued grounds I and 2 of the appeat together because they are intertwined and deal. with the enhancement of the award of special damages by the Court of Appeat. Grounds 1 and 2 of the appeat.

5 The appettant's counsel submitted that the Court of Appeat erred in [aw, because there was no basis in evidence for the award of special damages of Uganda shittings 224,838,2t+7 /=. The learned Justices of Appeat hetd that+Le triat judge was not justified in heavi[y retying on the finat certificate in the circumstances. There was however no basis for the conctusion of the Court of Appeat in the award of special damages as it did. The Court of Appeat had the duty to ensure that the standard of proof was met prior to arriving at its conctusion. The respondent in the High Court ought to have proved on the batance of probabitities that they were entitted to the awarded damages but did not because it was an admitted fact that the contract provided that payment woutd be made against the presentation of finaI certificates issued by the Project Manager under ctause 7.2 of the General Conditions of Contract (GCC). The respondent did not tender the finat certificate but retied on the contract price which was a provisional and not final sum. Counsel contended that the contract price cannot be the basis for the award of speciaI damages and the learned Justices of AppeaI erred by considering it without the finat certificate. 10 15 20 Secondty, it was an admitted fact that the contract price was adjusted to Uganda shil.tings 1,132,311,019/= VAT inctusive. The adjustment did not do away with the requirement to present a certificate issued by the Project 2s Manager, which proves the actual work done and the amount that the respondent is entitted to. The f inding did not take into account the provisions of ctause 42 of the GCC which provides for payment based on vatue of executed and certified works. Further the Attorney Generat's counsel submitted that ctause 53 of the GCC requires the Project Manager to make 30 a detaited account of the totat amount payabl.e under the contract within 56 days of receiving the contractor's account. ln the circumstances, this finat account was issued and the va[ue of the works was certified on the 3.d September 2009 and was Uganda shittings 98t+,653,973/=. ln the absence of any other certificate, the adjusted contract price cannot be the sote basis 3s for the award of speciaI damages as this wou[d occasion an injustice by paying the respondent for works not executed or certified by the project Manager. 5

6 s ln addition, the appettant's counsel submitted that the burden of proof under section 101 (1) of the Evidence Act cap 6 laws of Uganda is on the party seeking to prove the facts giving him or her a right to judgment (See Godfrey Ssebanakita vs Fuelex (U) Ltd; Supreme Court Civit Appeat No. 4 of 2016). ln addition, the Supreme Court as a second appettate court has the power to 10 overturn a judgment of the Court of Appeat on the ground that it is not supported by evidence (see Mpungu & Sons Transporters Ltd vs Attorney General and another; SCCA No. l7 of 2000) which cited with approva[ the decision of the East African Court of Appeat in Peters vs Sunday Post Limited [1958] EA 42L for the proposition inter a/rb that if there is no ls evidence to support a particutar conctusion (and this is reatty a question of taw) the appettate court wi[[ not hesitate to so decide. lf the evidence is such that it cannot reasonabty be regarded as justifying the decision arrived at the triat, that decision may be set aside. Further, the appetlant's counset contended that the Court of Appeat did not zo property consider the nature of the contract and had it done so, it coutd not have reasonabty come to the conctusion it did. That it is trite taw that the final certificate in an ad-measurement construction contract shatt have effect in any proceedings arising out of or in connection with the contract as conctusive evidence as to the terms of the contract for any amount to be 2s added or deducted from the contract sum or for adjustment to be made to the contract sum, save where there has been any incidental inctusion or exctusion of any works, materiats, works or figures in any computation or any arithmetic error in any computation (see the decision of the House of Lords Trustees of Marc Gittbard 2009 Setttement Trust and vs 0.D. 30 Developments & Projects Ltd [2015] EWHC 70 C[CC). The appettant's counse[ contended that payment for the amount of work done in the ad-measurement contract, regardtess of any adjustment in the price is the amount certified by the Project Manager. ln the absence of this evidence, there is no basis for the court to award special damages. Further 3s that any award not based on the finat certificate woutd be specutative and unsupported by evidence. The respondent did not prove, on the batance of

5 probabitities, that the revised contract price was earned in accordance with the contract. The appettant's counsel invited this court to find that the faiture of the court of AppeaL to consider the terms of contract, or any evidence in support of the prayer for special damages was an error of [aw. Further, the appettant's counse[ submitted that speciat damages must be specificatty pteaded and proved on the batance of probabitities and it woutd not matter whether the suit proceeds inter partes or ex parte. The evidence of special damages must be supported by the particulars set out in the pLeadings (see McGregor on Damages Fourth Edition p. l02B). This principte was apptied in Uganda Tetecom Ltd Vs Tanzanite Corporation (20051 EA 331. ln the premises, the appeLl,ant's counseI contended that the Court of Appeat faited to property re-evatuate the evidence for proving special. damages. Counset submitted that the speciat damage adjudged, though pl.eaded, was not proved. The above notwithstanding, the appettant's counsel submitted that the fact that the final. certificate did not form part of the record as noted by the court of Appeat, did not shift the burden of proof to the appettant. The respondent was duty bound to prove the vatue of the works Vis-i-vis the contract sum. The appetlant's counsel invited the court to al.l.ow the appeat with costs to the appettant and to set aside the dectarations and orders of the Court of Appeat. Repty submissions of the respondent. counsel for the respondent submitted that when the contract sum was revised to Uganda shittings 1,132,311,0191=, the respondent duty compteted the works and handed over the buitding to the Ministry of Justice and constitutionat Affairs 2009 and the buitding has since been used. The Ministry of Justice paid a totat sum of Uganda shiil,ings 907.tfl2,772/=. On 5 October 2009, the respondent submitted the finat accounts to the project Manager demanding a final payment of Uganda shiil.ings Z9gj1t9./it}/=.Ine Project Manager refused to certify the works for finaL payment and the Ministry of Justice and constitutionaL affairs atso refused to pay. The 10 15 20 25 30 35 7

5 respondent successfutty fited HCCS No. 438 of 20'10 to recover the bal.ance of the contract sum. lt atso successfutty appeal.ed against damages and interest awarded by the triat court, to the Court of Appeal.. with regard to ground 2, the respondent's counsel submitted that the learned trial. judge retied on the finat certificate issued by the project Manager to assess the unpaid batance due to the appettant. The finat certificate put the contract price at Uganda shittings 98L,653,9731= which was unjustified. The final certificate was never tendered in court as an exhibit at al.t. The respondent's counseI submitted that the learned justices of the court of Appeal. were right on two grounds. Firstty, the Attorney GeneraI had not cited any Law permitting the court to rety on documents which are not exhibited. The atteged finat certificate was [isted as an intended exhibit but it was not exhibited. The respondent's counseL prayed that the court shou[d not rety on fanciful theories or attractive reasoning but shoutd base its decision on evidence that is adduced before it (see Fang Min v Belex Tours; consotidated sccA No. 6 of 2013 and sccA No. I of 2014 crane vs Belex Tours). ln that appeat, it was inter al.ia hetd that documents which have not been admitted in evidence Lack evidential value and cannot be relied upon (see Kasifa Namusisi & Others vs Ntabaazi SCCA No. 04 of 2005). ln the premises, counsel prayed that ground 2 of the appeal. be disattowed accordi ngl.y. Further, the respondent's counsel contends that the Attorney Generat,s argument is that the respondent did not tender in the final. certificate and there was no factual basis for the award of special damages. However, this argument is misconceived. Firstty, the respondent did not base its averred ctaim in the ptaint on the final, certificate. secondty the Attorney GeneraI pteaded in its written statement of defence that payment was by way of vouchers that were annexed in the amended written statement of defence. ln terms of 0rder 6 ruLe 7 of the civiL procedure Rutes, the parties are bound by the pteadings and cannot succeed on a case or defence which is not set up in the pteadings. ln the premises, the Attorney General is barred from pteading or presenting an argument not supported by its pteadings. 10 15 20 25 30 35 8

5 Secondty in terms of the adage that a person who atteges must prove; having atteged that the payment was by way of vouchers, the onus was on the Attorney General to prove this by exhibiting the atteged vouchers. However, the Attorney General faited to produce the vouchers. Thirdl.y, the Attorney GeneraI is estopped from asserting the argument because in paragraph 9 of the joint scheduling memorandum the Attorney Generat,s list of documents inctudes the finat certificate. The finat certificate was an intended document and it was the duty of the Attorney General to exhibit it. ln the premises, the respondent's counseI contended that ground 2 is devoid of merit because the Attorney Generat's main grievance in this court rests on the atteged final certificate. That the disposal. of ground 2 of the appeat woutd be sufficient to have the appeat dismissed with costs. without prejudice, the respondent's counsel contended that the Attorney Generat's sole grievance in ground 1 of the appeat centres on the final certificate but any arguments founded on the finat certificate are not grounded in law and fact and that wouLd be sufficient to have ground 'l of the appeat dismissed. The above notwithstanding, the respondent's counse[ addressed the court on the issue of whether the Justices of Appeat erred by considering the contract price atienated from or without considering the finat certificate. Secondty, any finding not based on the f inal certificate woul.d be specul.ative and unsupported by any evidence. They contend that this argument is sel.f- defeating and grossty contradicts the Attorney Generat's argument where he rightty says that the finat certificate was not part of the record because it was not exhibited. Having admitted this, the argument that it shoutd have been considered is unfounded in taw. secondty the Attorney General ctaimed that the final. certificate has no evidentiaI value as it was not exhibited. Thirdty, the project Manager refused to certify final payment under clause 53.1 of the GCC when the respondent submitted its finat account on Sth October 2009 according to exhibit p ,l0. The Project Manager had 56 days thereafter to certify finat payment and this period etapsed on 3'd December 2009. The project Manager refused to 10 15 20 25 30 9 35

5 certify the works as varied by the parties. PW 1 testified that the project Manager refused to do so on the ground that he had atready issued a certificate and he was not going to revisit the finaI account. This evidence was not controverted and was corroborated by the Attorney Generat,s atteged certificate issued on 3'd September 2009. The certificate was issued without the finat account of the respondent contrary to ctause 53.1 of the GCC. The Project Manager had no power under clause 53.] to certify finat payment without the finaI account of the respondent. The respondent's counset submitted that in the instant case, the parties agreed on how to certify finat payment and the court shouLd enforce the terms of the contract. That the court shoutd not condone the bLatant abuse and violation by the Project Manager by his refusal. to certify. Further that the finat certificate dated 3'd september 2009 fett outside the parameters of clause 53.1 of the GCC and woutd have been worthtess, even if it had been exhibited. The Project Manager under ctause 4.1 of the GCC is an agent of the respondent. The refusaI of the agent to certify the finat payment is the refusaI of this principat. The faiLure or refusaI of the project

Manager to certify final payment upon receiving the finat account of the respondent cannot be btamed on the respondent. Further, when the respondent sought to add the project Manager as a party, the Attorney General opposed the apptication and the court dismissed it. The Attorney GeneraI did everything possibte to shietd the project Manager from court both as a witness and as a party. FaiLure of the Attorney Generat's agent to certify finat payment under ctause 53.1 has no LegaL effect on the contract price. The respondent's counseI contended that verification by the Project Manager was a mere payment method designed to ensure that before the employer pays, is agent first verifies the executed works to avoid paying for uncertified works. The duty to verify executed works and to certify did not empower the project Manager to determine the contract price. The emptoyer and the respondent had atready agreed on a fixed contract price which they tater revised. The agreed contract price was a sum of Uganda shittings 1,132.311,019/= VAT incLusive. This was an admitted 10 15 20 25 30 35 l0

5 fact which did not require proof in terms of section 57 of the Evidence Act. He submitted that the Attorney General is estopped from disputing an agreed fact at this stage of the proceedings. The respondent would not be entitted to the futt contract price if it faited to execute the works or executed them effectivety. However, the Attorney General admitted in the joint schedul.ing memorandum that the respondent duty executed the works and handed over the compteted off ices to the Ministry of Justice and Constrtutionat Affairs in 2009. ln the premises. the respondent is entitted to futt payment of the revised sum VAT inctusive. lt fottows that the arguments of the appettant based on the certification of payment have no merit. 0n the argument that there was nop;sis for the award of speciat damages of Uganda shittings 22L,838,2L7/i ii[ Court of Appeat hetd that this was the unpaid batance of the revised contract price. The Court of Appeat retied on the agreed facts in the joint scheduting memorandum which sets out revised the contract sum, the execution and the handover of the works. That there was a va[id contract between the parties and the works were du[y executed and the contract sum was revised. Further it was estabLished that the Ministry of Justice and Constitutionat Affairs onty paid a sum of Uganda shiLtings 907,L72,772/= and these facts were undisputed. The award of specia[ damages is grounded on these facts. It was argued for the Attorney GeneraI that payment had to be made against the presentation of the finat certificate issued by the Project Manager. However, there is no factual basis for that argument. The fact is that the agent of the Attorney General refused to certify payment and the finat certificate has no evidentia[ vatue. Further, the principles upon which the court can interfere with an award of damages were set out in Bhotm vs car and Generat Ltd; SCCA No.12 of 2002, and is that the appel.tate court witt not reverse an award of damages untess it is satisfied that the Judge acted on a wrong principte or that the amount awarded was so extremety targe or so smatl as to make it an entirety erroneous estimate of the damage. The respondent's counsel contended that the comptaint of the Attorney General. is not on the quantum but on the principl.e. The Court of Appeat rightty 10 15 20 25 30 35 /z 11

s rejected the atteged finat certificate and rel.ied on other undisputed facts to award the special damages. Having acted on a correct principte, this court has no tegal basis to interfere with the award. ln the premises, the respondent prayed that the appeat is dismissed with costs. ln rejoinder to the respondent's submissions on ground 2, the appeU.ant's 10 counsel submitted that the respondent never based its cLaim in the High court on the finat certificate, the provisions of the contract itsetf which the respondent sought to enforce provided for the certificate, and not the appetlant. The contract was an admitted document and therefore proper for evidential purposes. Further, clause 37.2 ot the scc (speciat conditions of ls the contract) provides that "the bitt of quantities is used to catcutate the contract price. The contractor is paid for the quantity of the work done at the rate in the bitt of quantities for each item." ln addition, ctause 43.,l of the SCC provides that "payments shatt be adjusted for deductions for advance payments and retention. The Emptoyer shal.l. pay the contractor the amounts zo certified by the Project Manager within 2g days of the date of each certificate." The facts indicate that payment was not based on the contract price. Atthough it is an admitted fact that the contract price was adjusted, this did not have the effect of amending the contract between the parties, and the respondent did not make that case. 2s The appettant's counseI reiterated submissions that the respondent had the burden of proof which it did not discharge and did not prove its entitLement on the batance of probabitities. The court has a duty to ensure that the burden and standard of proof is met prior to issuing a decision. The respondent, and the High court ought to have demonstrated, on the batance 30 of probabitities, that it is entitted to the sums due in accordance with the contractuaI provisions. The appettant's counsel submitted that section 101 (l) of the Evidence Act provides that "whoever desires any court to give Judgment as to any legaL right or tiabitity dependent on the existence of facts which he or she asserts 3s must prove that those facts exist." Secondty, the burden of proof lies on someone who woutd fail if no evidence was adduced from either side. (See L2

5 10 15 20 25 30 13 Godfrey Ssebanakita vs Fuetex (U) Ltd; Supreme Court Civit Appeat No. 04 of 2016) Counsel submitted that the respondent did not at the triat or on appeat, demonstrate that it is entitted to the sums due on the basis of certified works under the contract. However, instead, the respondent atteges that it is the Attorney General to prove that payment was made against vouchers, which assertion is fatse. counsel further retied on Mpungu & sons Transporters Ltd V Attorney Generat and another sccA No.17 of 2000, for the hotding that if there is no evidence to support a particutar conctusion (and this is real.l.y a question of [aw, the appettate court witl not hesitate to so to decide). ln specific rejoinder to the contention that the project Manager refused to certify payment under clause 53.1 of the GCC, the appeU.ant submits that ctause 4.1 of the GCC provided that "if the contractor betieves that a decision taken by the Project Manager was outside the authority given to the project Manager by the contract or that the decision was wrongty taken, the decision shatt be referred to the adjudicator within l4 days of the notif ication of the Project Manager's decision." Further it is submitted that the respondent did not exercise the contractuat remedies to submit their grievance to an adjudicator for arbitration under ctause 24 and 25 of the GCC. lt is therefore immateriaL that pwl testified as it is demonstrated that there is no evidence that the respondent is entitl.ed to the general damages simpty because they asserted so without proof. Notwithstanding the fact that the finat certificate did not form part of the record, this did not shift the burden of proof to the appettant. The respondent was duty bound to prove the vatue of the works Vis-i-vis the contract sum. , This was not proved and in the premises, the appeU.ant prayed that this court attows the appeat with costs the appeUrant.

s Consideration of the Appeat I have carefutty considered the appeU.ant's appeaL, the submissions of counset, the authorities cited and the law general.ty. This is a second appeal., arising from the Judgment of the court of Appeat which heard and determined a first appeal from a decision of the High court in the exercise ro of its originaI jurisdiction. white the Attorney General fited a defence, the appettant's counse[ did not appear on the date of hearing and the suit was heard ex parte and concluded. The appeat wil.t primarity be determined through interpretation of uncontested facts and contract terms, which are matters of law as the facts are uncontested. rs_''fackground to the appeat is that the High court gave Judgment for the .--- A respondent who was the ptaintiff and issued orders for payment of 5,605,670/= towards VAT payments, shittings ]r7,67L,629/= as speciat. damages, Uganda shittings 10,000,000/= as genera[ damages as wetl as costs. The respondent was not satisfied with the award and appeaLed to the 20 court of Appeat against the awards. The Attorney General did not appeaL and therefore in principte, the award of the VAT payment of shittings 5,605,607/= and Uganda shittings li,6iL,62gl- as special damages as wer.r. as the award of general damages remain unchattenged except for being chattenged by the respondent for being inordinatel.y tow in terms of the 2s respondent's appeaL in the Court of Appeat. The respondent in the court of Appeat chaLLenged the fail.ure to award Uganda shittings 72,213,230/= being the penal.ty of vAT on account of the tate payments. Secondty, the faiture of the High court to award Uganda shittings 1l+7,629,731/= on the ground that this amount arose because of the variation 30 in the contract price. This is because the contract price for the construction of buitdings for the Ministry of Justice and constitutionat Affairs in Arua district had been agreed upon but subsequentl.y revised upward. corol.Lary to the award, the respondent comptained about the award of Uganda shittings 17,67t1,628/= instead of VAT inctusive payment of Uganda shiltings 3s 22L,073,853/= that arose due to variation of price under the revised contract. Finatty, the respondent complained about the award of l0% l4

5 interest on the special damages respondent considers to be a circumstances. of 25% per annum which commerciaI interest in the the instead proper 15 The Court of AppeaL onty partiatty atlowed the appeal. to the extent that it revised the award of special damages upward from Uganda shittings 10 17,67tt,628/= to Uganda shittings 22L,838,2tfl/= on the basis that this was the unpaid batance under the revised contract price. The Court of Appeat further awarded interest on the speciat damages at the rate of 18% per annum and the respondent got two thirds of the costs in the Court of Appeat. The general damages remained as awarded by the High Court. The ctaim for VAT 1s penatty of Uganda shil'tings 72,213,230/= was disattowed and no appeal was fited against that in this court. The Attorney General was aggrieved by the award of the Court of Appeat and further appeated to this court against the award of special. damages of Uganda shitl.ings 22t1838,237/= VAT inctusrve in the first ground of appeaL 20 white on the second ground of the Attorney General states the basis of the atteged error of the Court of Appeat in making that award. The crux of the issue is that it is atteged that the learned Justices of the Court of Appeat erred in law to fautt the triat judge for retying on the finat certificate of the Project Manager. This finat certificate was the basis of the award of speciat zs damages of Uganda shitl,ings about 17,674,628/= by the High Court. The actual matter in controversy is therefore whether the award of the sum of Uganda shittings 224,838,137 /= by the Court of AppeaI was based on an error of [aw. Determining this question also resotves the 2nd ground of appeat. The undisputed facts are that the contract for the construction of office 30 premises had a contract price of Uganda shil.tings 9BL,61B,Zlg/= VAT inctusive. The respondent appeated in earty 2009 for revision of the contract price on the basis of increasing prices of materiats. The contract price was revised upward to a sum of Uganda shiU,ings l,'132,311,019/= VAT incl.usive and this reftected an increase in the contract price of l5%. There was reference 3s to a fina[ certificate issued by the project

Manager in paragraph 6 of the

5 written statement of defence where it is admitted that the respondent was entitted to Uganda shittings 930,753,017/= VAT incLusive on that basis. The two grounds of appeal are intertwined in that they deat with the same issue of an attegedty erroneous award of speciaL damages by the Court of Appeat. The appetl.ant's argument is that the award was based on the contract price of 1]32,311.019/= without proof of entittement to the sum. The Attorney General contends that the sum cou[d onty have been proved by the production of the finat certificate issued by the Project Manager under the terms of the contract. That att entittement to payments shatt be certified by the Project Manager under the GeneraI Conditions of the Contract (GCC). No such certificate was tendered as proof of entitl.ement to the special. damages awarded by the Court of Appeat. Assessment for payment is on the vatue of executed works under ctause 42 of the contract. The project Manager under clause 53 makes a detaited account of the totat amount payabte under the contract within 56 days of receiving the contractor's final. accounts. The contention of the Attorney GeneraI is that the contract price cannot tawfutty form the basis for assessment of payment as payment is predicated on the certification of works by Project Manager who assesses what is due to the contractor based on executed works. Further the burden was on the ptaintiff to prove the certified amount. ln short, the vatue of the totat work done is refLected in the finat certificate of the Project Manager. A finding that is not supported by such evidence is bad in law under the terms of the contract. Further the speciaL damages must be strictty pteaded and proved. 0n the other hand, the respondent's counset opposed the appeat. Their contention is that the Project Manager refused to certify the finat payment after the handover of the buil,ding. The finat certificate of the project Manager put the contract price at Uganda shittings 98L,653,923/= when the price had been revised upward. The finat certificate was not even tendered in evidence and the burden was on the Attorney General to produce the finat certificate but he did not. The Attorney Generat's defence revolves on the final certificate which was not tendered in evidence and therefore the 10 15 20 30 35 16 )

5 defence ought to cottapse. The respondent's counsel noted that under clause 53.1 of the G[!, finat accounts were submitted by the respondent on Srh 0ctober 2009 a#+s exhibit P 10. The Project Manager had 56 days to '?. certify the works and the period etapsed on 3'd December 2009. The Project Manager did not certify the works on the ground that it coutd not revisit an earlier final certificate that had been issued in September 2009. The respondent contended that the acts of the Project Manager violated ctause 53.1 of the GCC. The Project Manager was supposed to certify the finat accounts after receiving the finat accounts of the respondent on 5th October 2009. That the finat certificate the Attorney General wanted to reLy on dated 3'd September 2009 was issued contrary to ctause 53.1 of the GCC. He contended that this was in breach of the contract because the Project Manager is an agent of the Government. The respondent's counseI submrtted that the revised contract price was an admitted fact and did not require proof. lt is an admitted fact that the respondent duly executed the works and handed over the structure to the Ministry of Justice and Constitutiona[ affairs. According to the judgment of the Court of Appeat, the unpaid batance was Uganda shittings ZZL,B3B,ZL7l= based on the revised contract price. The Court of Appeat relied on agreed facts, inclusive of the fact that the Ministry of Justice paid Uganda shil.tings 907,tt'|2,3271=. The Court of Appeat rightl.y rejected the finat. certificate of payment re[ied on by the Attorney Generat. ln rejoinder, the Attorney Generat's counsel contended that the respondent did not prove that the amounts it is ctaiming was certified by the project Manager. Further under ctause 4.1 GCC, it is provided that if the contractor thinks that the decision of the court Project Manager is outside his or her authority or was wrongty taken, that decision can be referred to the adjudicator within 14 days. The respondent did not exercise the contractual option to refer the dispute to an arbitrator or adjudicator. As I have noted before, the actual. matter in controversy retates to the award of special damages. The issue in controversy is further restricted to the quantum of the award rather than the principte that the award be made. ln 10 15 20 25 30 35 77

5 a nutshett, the crux of the dispute is whether the Court of Appeat erred in law to rety on the contract price to revise the award of special damages. I have carefutty considered the actual matter in controversy and for a proper anatysis of the facts, it is necessary to set out the timetines of certain facts which are material in deciding the question as to whether the Court of Appeat was justified in revising the award of speciat damages. The questions that need to be resotved inctude what the initial price of the contract was. Secondty when was the contract revised according*te.rthe dates in the exhibits. Thirdty when was the date of the hand over. ltis-the date of the final certificate of titl.e retied on by the appettant? What is the date of the finat accounts of the respondent? ln a further specific controversy, the question is whether payment cannot be made without the final certificate of the Project Manager. The respondent contends that the Project Manager refused to make the final certificate after finaI accounts submitted by the respondent around October 2009. The controversy before this court is set out by the Court of Appeat in the summary of facts at page 10 of their Judgment where it is noted that the comp[aint of the appettant is that the [earned trial. judge's assessment of the contract was against the contract sum of Uganda shittings 930,753, 0'17/= instead of the revised contract sum of Uganda shittings 1,132,311,019/=. The court of Appeat noted that the tria[ court improperty evatuated the evidence retating to the payments made and the contract sum as adjusted and reached the conctusion that the appel.l.ant was onty entitted to Uganda shil.tings 17,6'11t.628/= as special. damages which was low instead of Uganda shil.tings 340,418, 110/= (VAT inctusive) and variations vatue of Uganda shil.tings 1tt7.629,7 ti/=. The appettant disagreed with this and contended that it was tiabte for payment of onty the amounts certified by the project Manager. The certified amount contained in the finat certif icate was Uganda shittings 930,753,017/=. The case was that the learned trial. judge righilry considered the above figure and property evatuated the evidence and came to the correct conctusion that the appettant was only entitted to special damages as stated above. 10 15 20 25 30 35 /.-- 18

5 The court of AppeaL set out the crucial finding of the triat judge who estabtished that the method of payment was presentation of payment certificates. The triat court noted that the pl.aintiff's finat certificate of payment was issued by the Project Manager in September 2009. The certified amount was established by court exhibit D2 and was Uganda shittings 930,753,017/=. lt was on the basis of those materiats that the learned triat judge assessed special damages. According to the court of Appeat, the learned triat judge leaned heavity on the certification by the Project Manager in the finat certificate to determine the unpaid batance due to the ptaintiff. The certification was predicated on the contract price of Uganda shittings 984,653,973/=. However, the finat certificate was never tendered in evidence. ln any case the parties agreed on certain facts set out in their joint scheduting memorandum. For that reason, the court of Appeat found that it was erroneous for the trial. court to interpret the contents of the finaI certificate in isol.ation of uncontested agreed facts. I have carefutty considered the matter in controversy between the parties to this appeat and it is quite cl.ear that the Attorney GeneraI bases the appeat on the procedure for payment without exptaining the consequences of the revised contract price. lt is an agreed fact that the revised contract price was based on increased prices for materia[s used in construction. lt is therefore correct to note that the revised contract price was about the increased cost of materiats and not the fees of the contractor. This is reftected in the agreed facts of the parties before the trial. court where the parties set up the fottowing facts: (a) That the pl.aintiff was on the'15'h August,2008 contracted by the Government of Uganda represented by the Ministry of Justice and constitutional Affairs to construct regionaI offices for the said ministry in Arua district at a contract price of Uganda shiLLings 984,618,278/= VAT inctusive. (b) That the above contract price was revi Contracts Committee from the origin 98A,618,278/= Uganda shittings to 1,132,31 prices of construction materiats and fue basing on the actuat value executed. sed on 16'h Aprit, 2009 by the Ministry,s aI contract price of Uganda shiLtings 1,019/= VAT inctusive due to the rise in the L costs vide a [etter dated 20th ApriL, 2009 10 15 20 30 35 19

5 (c) That the ptaintiff duty executed the entire contract works and handed over the premises to the said Ministry of Justice & Constitutionat Affairs sometime in September.2009 and the same is being occupied and used today. It is the concurrent finding of the triat court and the first appettate court that the finat certificate certified an amount of works executed to the tune of Uganda shittings 930,'1L3,017/=. The finat certificate was not tendered in evidence though the agreed facts disctose what is embodied in it. The controversy about whether the finat certificate of payment shoul.d have been tendered in evidence can lead to no foreseeabte good because the facts of what the certificate represented are agreed. The assertion of the Attorney General that the ptaintiff had the burden to prove the finat amount due under the certified contract is atso onty based on interpretation of contract terms. lt merety asserts that the amount due for payment shoutd be paid against the finat certificate. lt is an agreed fact that the contract sum was revised upwards. The works were conctuded and the premises handed over to the emptoyer. The appeil.ant based its entire appeat on the procedure under the contract to have sums payabte to the contractor to be made against certified amounts verified under the signature of the project Manager and embodied in a certificate of payment. This avoids equity and the fact that the Project Manager had initiatty based catcutations in issuing the finaI certificate in issue on the price of materiats set out in the originat schedules of bitLs of quantities in the contract in the certif ied finat payment in september 2009. This state of affairs required an eva[uation of the evidence where the respondent cl,aimed that the project Manager refused to certify fina[ payment after comptetion of the works. The trial record shows that the ptaintiff (now the respondent in this court) catled one witness, PWI Pascat Gakyaro. The Attorney General did not catt any witnesses. The suit proceeded for hearing on the 2gth of october 20.13. The ptaintiff appeared with his lawyer but no one appeared for the Attorney Generat. ln fact, the ptaintiff proceeded ex parte after the triat judge was satisfied that the Attorney General had notice of the hearing date but did not appear when the suit was cal.Led for hearing. 10 15 20 30 20 35

5 The uncontested evidence was that there was revision to the contract price which was done by the Ministry's Contracts Committee in Aprit 2009. The contract was comp[eted in Juty 2009 and the buitding was handed over on the 5'h of September 2009. on the basis of the revision in the price of the contract, the ptaintiff approached banks for more funding to comptete the contract. The ptaintiff submitted a first ctaim which was approved but reatised that it had some mistakes and thereafter submitted a second ctaim which the Project Manager refused to certify. This is what pWl stated: PWI: Yes we made the claim: but we made the first cLaim which was approved. Later on we reatised there were some errors and made corrections and submitted a fresh application on 5th 0ctober 2009; the consuttant refused and said it was time bad (barred) and yet the project period was stiil. ongoing. The finat project account sent to the Project Manager by the respondent was tendered in evidence as exhibit P10. The Project Manager however decl.ined to handte it on the ground that he had atready made a final certificate. The evidence has no facts to conctude that the project Manager did not foltow the revised rates in arriving at the finat certificate of payment of 5th september 2009. This position is reached through inference. Rute 30 (l) of the rutes of this court provide that: 30. Power to reappraise evidence. (1) where the court of Appeat has reversed, affirmed or varied a decision of the High court acting in its original jurisdiction, the court may decide matters of law or mixed law and fact, but shatl not have discretion to take additional evidence. The facts were not contested in the High court and there is no factual controversy for this court to handte. lf anything, the facts can be stated as they are. Going back to the evidence, PW'l stated that the case was that there were errors in their first submission of accounts to the project Manager and that they resubmitted the final accounts. However, pw1 testified further that the final certificate was issued on 3'd of september 2009 when there were ongoing works. PW testified that the basis of the finat certificate that was 10 15 20 25 30 35 27 l

issued in september 2009 was that the project

Manager considered the contract price of Uganda shittings 98L,653,972/= which by inference means that that the materiats were costed at a rate of an eartier bil.ts of quantities and not the revised price rate. There is another piece of evidence that does not appear in the evatuation of the trial court or the court of Appeat and it is the testimony of the ptaintiff,s witness PWI on the issue of the finat accounts and the revised appl.ication exhibit Pl0 when he stated that: Tumwesigye: When you made this request, did they reptf PWl: They did not reply but they catted us for a meeting in the Ministry, but again we have never had the minutes of that meeting; but in the meeting the ctient asked the Project Manager to revisit our finat account; but the project Manager repl.ied and said it was out of time and he cannot do it unless he gets written instructions from the Ministry. I think the instructions were not written and he did not revisit. Cou rt: When was this? PWl: This was in 2010; of course when we wrote the project had ctosed; does that mean our comptaints were not taken in and that is why we wrote this statement to request them to consider. when we asked them then the Ministry catted a meeting of the consuttanu lthink we had atso fil.ed the case in court, because we were seeing that we were going to lose that money and so the onty alternative was to run to court. PWl was not cross examined as the matter proceeded ex parte and submissions were made on the basis of the ptaintiff^i onty witness testimony and the agreed facts on the same day of the hearing. ctearty the contract price had been revised and the parties were supposed to fite an addendum to the contract which reftected this position. The court 10 15 20 25 30 /-- 22

5 of Appeat noted that this addendum was not adduced in evidence. ln the premises, the first appeal court revised the figure of special. damages purety on the basis of the revision of the price of materiaLs. The revision assumes that the cost of production is the cost stated in the contract and therefore the entire revised sum had to be paid. The project Manager refused to revise the prices using the revised contract price. The Trial. court retied on ctause 24 of the GCC for the conctusion that any dispute with the Project Manager had to be sent to the adjudicator. Rul.e 24 of the GCC provides that: 10 24.1 lf the Contractor believes that a decision taken by Project Manager was either ls outside the authority given to the project

Manager by the contract or that the decision was wrongly taken, the decision shatt be referred to the Adjudicator within 14 days of the notification of the project Manager,s decision. r'ui'l' ', Clause l.l,the adjudicator is the person appointed jointty by the Emptoyer and the contractor to resotve disputes in the first instance, as provided in 20 ctause 2l+ and 25. ctause 25 provides that the adjudicator shatt give a decision in writing within 28 days of the receipt of a notification of a dispute. This procedure was not foil.owed and the issue is whether the High court had jurisdiction in the matter. The issue of jurisdiction was not raised. ln the amended written statement of defence, the appettant averred that: 25 8. ln repty to paragraph 9, the defendant submits to the jurisdiction of this honourabte Court but contends that the ptaintiff is not entitted to any of the retiefs being sought. ctearty the appettant by cLause 8 of the amended written statement of defence waived its right to object to the jurisdiction of the High court on the 30 ground that the matter shoutd first be referred to the adjudicator for resotution of a dispute arising out of the decision of the project

Manager. The objection to the suit was not raised eartier in the trial. court and the Attorney GeneraI did not participate in the ex parte hearing and submissions before judgment was delivered. The [earned triat judge 3s however, used ctause 24 to shut out any ctaims which were not in the finat certificate of the Project Manager. This is refl.ected in the decision of the

5 triat judge cited as Atpha Gama Engineering Enterprises Ltd v Attorney General (Hcr

• 00- cc - cs 438 of 2010) (2013) UGCommc 213 (19 December

2013. where wangutusi J at pages 7 and g of the judgment after quoting ctause 24 of the GCC said: That being the procedure, the ptaintiff had every right if he fett that the figures arrived at in the final certificate by the project Manager were not correct, to refer the matter to an Adjudicator within]4 days from tearning the contents of the Project Manager's finat certificate, and if not satisfied to an arbitrator. He did not do this. Furthermore, since the payment was based on certificates, the Defendant coutd not be heLd liable for non-payment beyond the certified amount. The certified amount was given to the court in exhibit D2 is Uganda shiil.ings 930,753,017/=. This document which formed the decommissioning report and which was authored by the ptaintiff

on 5 September 2009 days after the finat certificate issue is the most retiabl.e evidence as to the certified amount. lt is therefore this amount, less Uganda shiLtings 907,4,12,7j2/= atready recovered, that forms the money owed to the pl.aintiff by the Defendant. The resutt is Uganda shil.tings 23,280,2t+S/=. But this amount includes the unpaid VAT of uganda shittings i,60i,617 /= which gives subtracted from the sum, leaves Uganda shittings 17,63L.628/= and it is the sum of money awarded as special damages. The court of Appeat rightty hetd that the Learned triat judge heavity retied upon certification by the Project Manager, especiatty on assessment of the unpaid batance due to the appettant. This did not take into account the revised contract price but used the otd contract price. ln the circumstances, the question of adjudication by the adjudicator cannot be raised in this court. The onty material question is whether the court of Appeat erred to rety on the revised contract price and hotd that the triat court erred in [aw to use the originat contract price to assess the vatue of the works not paid for. The court of Appeat rel.ied on an agreed fact that the originat price was Uganda shil.tings 984,653,972/= (VAT inctusive), the fact that the contract price was revised on 16th Aprit 2009 upwards to the sum of Uganda shiil.ings 1'132,311,0191= UAT inctusive), the fact that the appettant duty executed the 15 25 35 10 20 30 ,

5 contract works and handed over the premises to the Ministry of Justice and Constitutionat Affairs. Lastty, the appettants appeat rests on the proposition that onty the certificate of the Project Manager can prove the amounts due to the ptaintiff and that the ptaintiff did not meet the burden of proof. lt is difficutt to sustain this position because the ptaintiff's action in the High court and in the first appettate court rested on the evidence of the refusaI of the project Manager to certify the finat accounts. I woul.d accept the submissions of the respondent's counseI that the project Manager is an agent of the Government of Uganda and therefore the refusal of the project Manager to certify the works is an act of the Government of Uganda. Having dectined to certify the vatue of the compteted works, the Government is barred by the doctrine of estoppets from raising an argument that the respondent can onty rety on the certification of the project Manager to prove its entittement to payment or to use the certificate to assess what is owing. The respondent was entitted to avoid the clause of the GCC for payment to be processed upon presentation of the certificate of payment of the project Manager. ln Lombard North-central p[c vs Butterworth nggT] I Att ER 26? at page 271, Lord Mustitt hetd that where a breach goes to the root of the contract, the injured party may eLect to put an end to the contract and thereupon both sides are retieved from those obtigations which remain unperformed. As far as remedies are concerned it was aLso heLd in Lombard North-central vs Butterworth (supra) that because punctual payments of instalments under a financial. lease was of essence in the agreement of the parties, breach of the punctuaL payment ctause went to the root of the contract and entitted the aggrieved party (the financier) to terminate the contract and recover damages for [oss of future rentats. Simitarty, the Project Manager of the Government decl.ined to issue a payment certificate, even if it the certificate woutd show that the amount remaining was ni[, and this was in breach of ctause b3.l of the GCC which provides that: 15 25 30 35 10 20 25

5 53 1 rhe contractor shail. suppr.y the project

Manager with a detaited account of the totat amount the contractor considers payabte under the contract before the end of the Defects Liabir.ity period. The project Manager shatt issue a Defects Liabitity Certificate and certify any finat payment that is due to the Contractor within 56 days of receiving the contractor's account if it is correct and comptete. lf it is not, the project Manager shatt issue within 56 days a schedule that states the scope of the corrections or additions that are necessary. rf the Finat Account is stitl unsatisfactory after it has been resubmitted, the project

Manager shatl decide on the amount payabte to the contractor and issue a payment certificate. Payment is based on a payment certificate and therefore fair.ure to carry out the evatuation of the works is a fundamentar. breach. rt shoutd further be noted that ctause S5.2 (d) of the GCC provides that where a payment certificate issued under the contract is not paid by the Emptoyer to the contractor within 28 days of the date of the project Manager's certificate, this shatt constitute a fundamentat breach of the contract. tn my judgment, where the Project Manager refuses to certify the payment, it woutd not oe possibte, if the contract is strictty construed, for the contractor to make a ctaim for payment because of the absence of the payment certificate. The contractor woutd be frustrated by the absence of the payment certificate. rn other words, it goes to the essence of the requirement of payment on the basis of a payment certificate for the project Manager to refuse to certify compteted works. The faiture therefore to certify the finat payment goes to the root of the contract and particutarr.y on the term of finat paymeni of the Contractor after he has compteted the works. 10 15 25 30 There was no counterctaim to the effect that the contractor did not compr.ete the works. lt was an agreed fact that the contractor compr.eted the works and handed over the premises. Having breached the contract by faiture to issue a certificate of finat payment after the Defects Liabir.ity period, the appettant is barred from stricil.y retying on the ctause for the production of a certificate of payment of the project Manager as against the contractor who had futfitted its part and submitted its finat accounts in terms of cr.ause 53'1. The final accounts were to be fottowed by a payment certificate. 2 20 35

5 10 20 25 27 ln the circumstances, the contractor is entitted to ctaim on the basis of quantum meruit in the absence of a certificate of payment. The Oxford Dictionary of Law Fifth Edition, defines quantum meruitinleratia as part of a fietd of law known as quasi contract: A fiel'd of law covering cases in which one person has been undur.y enriched at the expense of another and is under an obtigation quasi ex contraitu (as if from a contract) to make restitution to him. rn many cases of quasi-contract, the Defendant has received the benefit from the ctaimant himsetf. The cr.aimant may have paid money to him under a mistake of fact, or under a void contract, or may have suppIied services under the mistaken bel.ief that he was contractua .y bound to do so. rn that case, he is entitted to be paid a reasonabte sum and i..l,o to ,r. on a quantum meruit (as much as he deserved). The ctause to be paid upon presentation of a certificate of payment issued by the Project Manager was rendered inoperative and void. According to Hatsbuqy's Laws of Engtand voLume 9 (l) Fourth Edition Reissue in paragraph ll56{taims for a quantum meruit in respect of work vor.untarir.y 1r--- done under a contract terminated for breach or under an unenforceabte, void or itlegal. contract are property regarded as restitutionary. ln some circumstances, a ptaintiff may recover on a quantum meruit in respect of work done under a contract which is unenforceabte, void or ittegat. where a contract is unenforceabte, as a generaI rur.e the Defendant is not preJtuded by the fact of performance by the ptaintiff from pr.eading the unenforceabitity. rf, however. the contract has been performed by the ptaintiff, and the work has been done by the ptaintiff at the request of the Defendant and of which he has had the benefit' the ptaintiff can recover on quantum meruit notwithstanding the unenforceabitity of the contract. The obtigation to pay for services rendered is imposed by a rur.e of r.aw. rn craven-Ellis v canons Ltd n936] 2 Att ER r066, a judgment of the court of Appeat of Engtand, the facts were that the ptaintiff worked for the Defendant company as a Managing Director but his service agreement was void because he was appointed by persons who did not have the requisite share quatification and he too did not quatify for appointment. He was attowed to recover his remuneration on a quantum meruit. rtwas hetd by Greer LJ that 15 30 35

the obtigation to pay is imposed by a rute of law and not by inference of fact from the acceptance of the goods or services: He hetd at 1073 that: The decisions in clarke v cuckfietd Union Guardrans and Lawford v Bir.tericay RuraI District Councit, are also authorities to the effect that the imptied obtigation to pay is an obtigation imposed by taw, and not an inference of fact, arising from the performance and acceptance of services.ln the tast mentioned case the work in respect of which the ptaintiff sued was done in pursuance of express instructions given by the Defendant councit, but was not binding on the Defendants because no agreement had been executed under their sea[. rt was impossibte to say as a matter of togicat inference from the facts that by accepting the advantage of the pr.aintiff's work they had promised to pay him a ieasonabr.e sum therefore. Both parties assumed that there was a contract between them, and the acceptance of the work by the Defendants could not in fact give rise to the inference of a promise to pay the reasonabte value. For these reasons this case seems to me to show that the obtigation is one which is imposed by taw in a[[ cases where the acts are purported to be done on the faith of an agreement which is supposed to be but is not a binding contract between the parties. (emphasis added). ln the circumstances what remained was for the court to estabtish from the evidence whether the respondent proved entifl.ement to the sums. The respondent proved that the total amount payabl.e was not reftected in the final certificate of Sth of September 2009 because the works were stil.l. ongoing. subsequentty, the respondent produced exhibit plO which is supposed to be fottowed by the finat certificate of the project Manager. The on[y evidence on record indicates that the project Manager's representative indicated that the request of the respondent for certification of the amounts due upon comptetion of the project was time barred. That the Ministry of Justice and constitutionat Affairs was supposed to write fresh instructions for the Project Manager to carry out a fresh certification after the finat accounts of the respondent. This evidence was not rebutted and the timetines in the contract coutd not be compLied with. Exhibit P 10 is dated 5th 0ctober 2009 and indicates that the finaI amounr payabte according to the cover letter was uganda shir.tings 296,7i9.Lii/= the breakdown indicated that the contract price was adjusted by increasing the 10 15 20 35 5 30 28 3-

5 contract price by 15% reftecting an increase of Uganda shitting 1Lz,71L,ltts/=. The vatue of the works was shittings 1,09L,1L1,7j3/=. The learned triat judge hel'd that the money al.ready recovered by the ptaintiff who is now the respondent was shitlings 907,tflZJjZ/=. This evidence was not rebutted by the Defendant. The defendant instead, retied upon the finat certificate issued around 3rd or sth of september 2009, (a certificate that was rightty rejected by the court of Appeat) and requested the ptaintiff to prove the certified amounts after that date. ln the circumstances, the ptaintiff proved the amount due under the contract and it was up to the defendant to rebut the evidence. Using the ptaintiff's unchal.l.enged evidence, it is disctosed that the amount of Uganda shittings 186,669,001/= is due. This was onty pending the certification of the Project Manager. The court of Appeal. erroneousty used the revised price of contract of Uganda shil.tings 1,.132,311,0.19/= to subtract therefrom the amount al.ready received by the respondent, to arrive at the outstanding amount VAT inctusive. This amount was in excess by Uganda shittings 38,169,246/=. This is an error of fact as the ptaintiff onty proved 1,09tt,1t,]',773/= in terms of exhibit pl0 which is the evidence of the respondent of the total vatue of the compteted works. I accept the submission that it was erroneous to use the contract price in isoLation of the evidence to assess what was due and owing to the respondent. ln the premises, grounds r and 2 of the appettant's appear. substantiatty fait and I woutd make the fottowing orders.

1. The appea[ substantiaLLy faiLs and onty partiatty succeeds to the extent of correcting the error in computation by the court of Appeat based on a wrong principte. The correct principte is to establ.ish the val.ue of the totat compteted works and subtract therefrom the amounts atready received by the respondent. I woutd make an order that the award of Uganda shil.tings ZZL.B3B,ZLI /= by the Court of Appeat be set aside and be substituted with Uganda shittings 186,669,001/= (vAT inclusive).
2. I woutd uphotd the award of interest of 1g% per annum on the above award from the date of fiting the suit titt payment in futt. 10 15 25 30 35 t- ?9 20

5 3. I woutd award costs of 3/4th' in this court and zf3,d, in the court of Appeat to the respondent. 4. I affirm genera[ damages of Uganda shittings .l0,000,000/= in favour of the respondent. 5. I woutd affirm interest at court rate on the generaL damages from the date of judgment of the High court (18th December, 2013) titt payment in ful.t. 6. I woutd further affirm costs of the High court proceedings to the respondent. Dated at Kampata,n" OEh, o, nyooa*[rcv 202tt 1.0 15 Christopher Madrama lzama Justice of the Supreme Court J "{3qxs,\ &\r.-<s **\ a-c\ t.-S-\ C.\ 30 \t--<, &1.^o c.\cq

THE REPI'8LIC OF UGAIIDA THE SIIPREME COI'RT OF UGANDA AT I{AMPALA (Coram: Tuhaise, Musoke, Musota, Madrama & Mugenyi, JJSC) CIVIL APPEAL NO. 25 OF 2021 ATTORNEY GENERAL APPELLANT VERSUS LIMITED RESPONDENT (Appeal from the Court of Appeal (Egonda-Ntende, Barishaki & Kibeedi, JJA) in Civil Appeal No. 54 of 2014) Civil Appeal No. 25 of 2021 ALPHA GAMA ENGINEERING ENTERPRISES I

JUDGMENT OF MONICA KALYEGIRA MUGENYI. JSC 1 . I have had the benefit of reading in draft the judgment of my brother Madrama, JSC in this Appeal. I agree with his findings and the conclusion therein that the Appeal substantially fails. 2. I do similarly abide the consequential orders proposed therein. Monica K. Mugenyi Justice of the Supreme Court l-. Dated and detivered at Kampala th'" .>--A-.:"v or.$)y.$.:Ng:2. ...,2024. ) Civil Appeal No. 25 of202l