Wongani Investments Limited v Zambia Public Procurement Authority (2024/HP/0386) (9 October 2024) – ZambiaLII

LIC OF .,,,.,,,,, 4 COi lRT OF✓... ' PRINCIPAL IN THE HIGH COURT FOR ZA!v1B 2024/HP/0386 AT THE PRINCIPAL REGISTRY! 1 0 ! OCT 2C2~ HOLDEN AT LUSAKA (Ciuil Jurisdiction) REGISTRY 1 /:) ·O. 8 ::-----:-. 1N THE MATIER OF THE PUBLIC PROCURE◄ ~~~~~ TN THE MATTER OF AN APPLTCATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW AND rN THE MATTER OF ORER 53 RULE 3 OF THE RULES OF THE SUPREME COURT BETWEEN: WONGANI INVES1'MENTS. LIMITED APPLICANT AND ZAI\IIBIA PUBLIC PROCUREMENT AUTHORITY RESPONDENT Before the Honourable Lady Justice S. Chocho, in chambers at Lusaka. For the Applicant: Mr. A Mwila of Messers I{aunda Kaunda Mwila Legal Practitioners For the Respondent: Nlrs. S. l\!Junkon1biue-l{alaluka-In House Counsel RULING Cases referred to: 1. R v Epping and Harlow General Commissioners, Ex P. Goldstraw (1983) 3 All E.R. 2. B.P. Zambia PLC v Za mbia Competition Cornmission and 2 others SCZ Judgement No. 22 of 2011 3. Tivampane Mining Co-op erative Society Limited V E and M Stortl Mining Lirnited (2011) ZR 67 4. Jeff Mu,·ebwa and 223 Others V Dangote Quarries (Zamfria) 1:.rimited and 2 Others [20.lBj ZMHC 337 5. Bella1nano v Ligure Lombarda Limited {1976) Z.R. 26 R2 6. Attorney General v Nigel Kalonde Il'futuna and 2 Others SCZ Appeal No.88 of 2012 7. Antonio Verntrigua and Others v Finsbury Investment Limited SCZ No. 2 of 2019 Legislation referred to 1. Practice Direction No.1 of 2002 2. The Rules of the Supreme Court of England, White Book, 1999 Edition. 3. The High Court Act, Chapter 27 of the Laws of Zambia. 4. The Public Procurement Act No. 8 of 2020 5. The Arbitration Act No. 19 of 2000. 1. INTRODUCTION 1.1. This Ruling is in respect of an application .b y the Respondent for an Order to discharge leave for judicial review made pursuant to Order 53 / 14 / 4 of the Supreme Court Practice Rules of England (White Book) 1999 Edition, Volume 1. 2. BACKGROUND 2.1. The background to this rr1atter as per pleadings and affidavit evidence is that the Applicant filed a notice of application for leave to apply for judicial review accompanied by summons, an affidavit verifying facts, list of authorities and skeleton arguments in support and a statement of facts on the 19th of March, 2024 claiming the following reliefs; R3 i) An Order of certiorari to rcrnove into the High Court for the purposes of quashing the said decision by the Respondents Director General. ii) A declaration that the decision of the Respondents Director General Contravened Section 95(2)(b)(c) of the Public Procurement Act No.8 of 2020 for not giving an opportunity to the Applicant to be heard and present proof of having reported a crime to the Za.mbia Police Service a crime-committed against the Applicant and the people of Zambia. iii) An Order of n1andamus compelling the Director General of the Respondent to acknowledge the fact that the Applicant had reported the matter to the police. iv) If leave is granted, an Order that the said leave should operate as a stay of the decision to which this application relates pursuant to Order 53 Rule (3) (10) a Rules of the Supreme Court (1999). v) Damages for loss of business and profits vi) An Order that all necessary and consequential directions be given. vii) If leave is granted, a direction that the hearing of the application for Judicial Review be expedited. viii) An Order for costs. 2.2. This Court granted the Applicant leave to apply for judicial review on the 20th of March, 2024. R4 2.3. Subsequently, the Respondents filed summons for an Order to discharge leave for judicial review accompanied by an Affidavit 1n support and a list of authorities and skeleton arguments on the 8th of May, 2024. 2.4. The Applicants filed an affidavit in opposition to summons for an Order to discharge leave for judicial revie"v and an accompanying list of authorities and skeleton argu1nents on the 21st of May, 2024. 2.5. The Respondent filed an affidavit in reply to the affidavit in opposition and a list of authorities and skeleton arguments in support of the st affidavit in reply on the 21 of J une, 2024. 3. AFFIDAVIT EVIDENCE 3.1. The Application is supported by an Affidavit S\vorn by Lennox Chiluwa filed into Court on the 6th May, 2024. . 3.2. It is deposed by Mr. Chiluwa that the Respondent suspended the Applicant from public procuren1ent for a period of one year for submitting false information in its bid in the tender for the supply and delivery of hospital linen. 3.3. It was averred that the false information was in respect to a local purchase order and goods received note from lVIaxcare hospital as proof of having supplied hospital linen in the past as per the requirement in the solicitation document for the tender. •· RS 3.4. He deposed that the decision to suspend the Applicant was made after undertaking an jnvestigation and at the commencement of the investigation, the applicant was given an opportunity to submit information or evidence in its defence. 3.5. Mr. Chilumwa averred that during the course of the inveshgation, the Applicant was given another opportunity to be heard and present evidence through an oral hearing. 3.6. It was averred that the investigation established that the local purchase order and goods received note submitted \Vere not authentic. 3. 7. He further averred that the prescribed mode for challenging a decision made by the Respondent to suspend a bidder from participation in public procurement. is through arbitration proceedings and not judicial review. 3.8. Mr. Chilumba averred that the suspension of the Applicant from participation in public procurement did not affect the execution of the outstanding contracts by the Applicant. 3.9. The Applicant filed an affidavit in opposition on the 21st of May, 2024 deposed by Natasha Mwansa. 3.10. It was averred that the Applicant challenged the process of the investigations and the process of its suspension is tainted with unfairness, unjust conduct and unreasonableness leading to the violation of the rules of natural justice among others. R6 3.11. It was further averred tJ1at the Respondent has not indicated the Order and Rule being relied on in the summons for a discharge of leave for judicial review other that having stated paragraphs 53 / 14 / 4 of the White Book 1999 Edition. 3.12. The deponent averred that the Applicants right to be furnished with materials and information to prepare its defence was denied by the respondent for not having attached the documents forming the basis of the allegations and the Applicant needed reasonable time to gather the information in Order to prepare a defence in light of the grave allegations. 3.13. It is averred that the Applicant was suspended for not having proof of having reporled the matter to the police yet t.he Applicant had clearly stated that the matter -;,vas reported to the police. 3.14. It is also averred that the Applicant was never given an opportunity to be heard as an accused but was only merely invited to assist with the investigations. 3.15. In reply, the Respondent filed an affidavit in reply to the affidavit in opposition on the 21st of June,2024. 3.16. It is averred that the process of investigations and suspension of the Applicant participating in public procurement was conducted with fairness, just conduct and reasonableness and there was no violation of the rules of natural justice as the Applican l was accorded an opportunity to be heard. R7 3.17. It is averred that the Respondent furnished the Applicant with adequate information and materials to defend its case and they could have exercised their right to request for further documentation to prepare its defence. 3.18. It is averred tl1at the Applicant was suspended from participation in public procurement after investigations established that the applicant had submitted false information in its bid in the tender to supply for the supply and delivery of hospital linen. 3.19. It is further averred that the police report was submitted to the authority outside the statutory framework of 30 working days in which to conduct the investigations and could not be considered by the respondent as the respondent cannot review its ov1n decision after the expiry of the time frame for investigation. 3.20. It was averred that the investigations were on whether or not the Applicant had submitted false information in the tender and not whether the rnatter ~ras reported to the police. 3.21. It is also averred that the Applicant was given an opportunity to be heard on the alleged complaint of subn1.ission of false information in a tender and investigations established that the applicant had submitted false information ~'hich led to the suspension from participating in public procuren1e·11.1.. 4. THE LAW RS 4.1. I have had occas1011 to rev1ev., and consider the application, having heard counsel for tJ1e Respondent and Applicant, read the affidavits, skeleton arguments and authorities ciled by the parties for which I am grateful. 4.2. The Respondent submitted that the Applicant's action seeks to challenge the exercise of powers of the Respondent as enshrined under Sections 6(3) (e), 95 and 96 (b) of the Public Procurement Act No. 8 of 2020. 4.3. It was submitted based on the authorities above that the Applicant herein should not have applied for leave to commence judicial review where there is another avenue of appeal. 4.4. The Respondent also placed reliance on the case of R v Epping and Harlow General Com.missioners, Ex P. Goldstraw (1983) 3 All E.R. 2571 in which it was stated that, "It is a cardinal principle that, save in the most exceptional circumstances, the jurisdiction to grant Judicial review will not be exercised · where other ·remedies were available and have not been used". 4.5. It was further submitted that as regards seeking redress against the decision of the Respondent's Director General, the available forum is arbitration and not judicial review and that the Applicant has not utilized the available remedy as enshrined in Section 99 of the Public Procurement Act. R9 4.6. The Respondent submitted that the Court lacks ju risdiction to hear and determine the application, to the extent that il attempts to respectively impugn the decisions of the Respondent. 4.7. Reliance was placed on the case of B.P. Zambia PLC v Zambia Competition Commission and 2 others SCZ Judgement No. 22 of 20112 in which it ·was stated as follows; "When any matter under the Competition and Fair-Trading Act is brought to the High. Court by means ofj udicial review, when it should have been brought by way of an appeal, the Court has no jurisdiction to grant the remedied sought". . The respondent also brought to the Courts attention what is recorded under paragraph 53/14/27 of the Rules of the Supreme Court of England that; "The Courts will not normally grant judicial review where there is another avenue of appeal. It is a cardinal principle that save in the most exceptional circumstances the jurisdiction to grant judicial review will not be exercised where other remedies were· available and not used". 4.8. In opposition, the Applicant submitted lhat Practice Direction No.1 of 2002 makes it 1nandatory that the correct provision of the law be cited for any application made before Court and in this case the Applicant has cited paragraph 53/14/4 as a purported Order relied on in their application v.rhich in itself is meiely a paragraph and not an J.Lll RlO Order and contended th3t the appropriate Order for a discharge for leave to comn1ence judicial review proceedings is Order 53 Rule 14(3) not paragraph 53/14/4 cited by the Respondent. 4.9. It was further sub1nitted that litigants who ignore the Rules of procedure do so at U1.eir ovvn peril and placed reliance on the authority in the case of. Twampane Mining Co•operative Society Limited VE and M Storti Mining Limited (2011) ZR 673. 4.10. The Applicant submitted that it is surprising th.at the Respondent has argued that this I-Ionourable Court has no Jurisdiction when all matters of judicial review are a preserve of this Court and not an Arbitrator ·and went on to submit that the Public Procurement Act provides that matters· be referred to Arbitration and Section 25 of the Arbitration Act provides that ,vere a Court is satisfied that the matter by any contract, vvritten agreement or law must go to arbitration, the Court may refer the matter to arbitration. 4.11. The Applicant was of the view that this meant that the Courts pov.rer or discretion is to refer the matter to arbitration but not to disrniss it or to ,. . discharge the leave on account of the arbitral process provided for by the Public Procurement Act and. that the discharge of the leave in this matter on the said arbitration provisions would amount to a dismissal of the Applicants case v1hich is not what the Arbitration Act provides. Rll 4. 12. The Applicant further submitted that this Court cannot refer the matter to arbitration as there is no application made by the Respondents therefore, no such Order can be made. 4.13. In reply, the Respondent raised an objection that paragraphs 4 to 7 of the Applicants affidavit in opposition contained legal arguments and . . offended Orde,· 5 Rule 15 of the High Court Rules and should be expunged from evidence and fu rthcr placed reliance on the cases of Jeff Murebwa and 223 Others V Dangote Quarries (Zambia) Limited and 2 Othep·s [2018] ZMHC 3374 and Twampane Mining Co operative Society Lirnited VE and M Storti Mining Limited (2011) ZMSC20 4.14. The Respondent further submitted that tll.e Court has inherent discretion to hear the application in the form it was presented as doing so would not materially alter the Respondents application in its initial form and found cornfort in the case of Bellamano v Ligure Lombarda Limited ( 19 76) Z.R. 265 in which the Supre1ne Court held as follows; "Besides the attempt to move the Court under wrong Rules, a perusal of the proposed amendments would not materially alter the Applicant's motion in its initial form... inevitably, this meant tltat we invoked our inherent discretion and ignored some of the irregularities manifest in the manner in which the motion was presented". R12 4.15. Further reliance was placed on the case of Attorney General v Nigel Kalonde Mutuna and 2 Others SCZ Appeal No.BB of 20126 in which it was held as follows; "We are therefore, satisfied that under Order 53/ 14/4, the route the Appellant took of applying before the lower Court to discharge an ex parte Order for leave is tenable at law". 4.16. The Respondent submitted that there is no need to amend the application as the said application bears a correct citation of the Order 53/14/4 of the Rules of the Supreme Court Practice Rules, 1999 edition. 4.17. The Applicant further submitted that the respondent waived their right of asserting an irreguk-trity when they filed an affidavit in opposition as a party is es topped from asserting an rregularity if a further step has j been taken in the process. In· making these submissions, reliance was placed on Order 2 of th~ R~les· of the Supreme Court of England, 1999. 5. COURTS DECISION 5.1. Having considered the parties submissions, the question for determination is whether this Court has the jurisdiction to entertain the Applicant's application for judicial review. 5.2. It is trite that the I-Jigh Court has original and unlimited jurisdiction. That is to mean, cases can begin in the High Court and that the Court Rl3 can hear any type of cases except those specifically excluded by the Constitution or Statute. 5.3. The Respondent submits that the Public Procurement Act in section 99 is instructive on the forum of dispute resolution, the section provides as fo1lo'1vs_; "A bidder or supplier aggrieved by a decision of the Authority to suspend the bidder or supplier from participating in public procurement or over any other matter under this Act may submit the matter to arbitration within ten days of the Authority's dec·ision to suspend". 5.4. I am of the considered opinion that the Public Procurement Act under Section 99 as reproduced in 4:3 above is clear as to where the matter lies. An aggrieved party may submit the matter to Arbitration. 5.5. In my mind the Public Procurement Act specifically excludes the High Court from hearing a party aggrieved with the Authority's decision to suspend it from participating in Public Procurement. 5.6. 1 am grounded in my position by the authority in the case of Antonio Verntrigua and Others v Finsbury Investment Limited SCZ No. 2 of 20197 Jurisdiction is everything, and anything done without . jurisdiction is an aclion in futility. 5.7. The case of B.P. Zambia PLC v Zambia Competition Commission and 2 others SCZ Judgement No. 22 of 2011 is also instructive on the facts in casu. In that case, the Supreme Court held that an R14 aggrieved party goes to the High Court by way of appeal and not judicial review. 5.8. The principle of judicial review is that the Court merely reviews the decision making process itself of public bodies/tribunals. In the exercise of po,.vers under judicial reviev.7, the Court must consider whether the Applicant has exhausted all the alternative retnedies available to him. 5. 9. In the case before n1e, it is clear that the Applicant did not attempt to go to Arbitration, a procedural deficiency on their part. Contrary to the Applicant's submission, it is not for the Respondent to apply for Arbitration or this Court to refer the matter to Arbitration as the Public Procurement Act gives directives as to who and when. 6. CONCLUSION 6.1. In light of the foregoing, I find that the Respondent's application is grounded in law and has merit. The Respondent's application is granted. 6.2. I further Order that leave to apply for judicial review, granted to the Applicant on the 20th of March, 2024 BE and is HEREBY DISCHARGED. • Rl5 6.3. The matter stands dismissed on account of lack of jurisdiction. 6.4. Costs for and incidental to this case are granted to the Respondent to be taxed in default of agreement. Delivered at Lusaka on the 9th October, 2024. . . . ... ·. . ·. ...