[2024] UGHCCD 201

## **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA AT KAMPALA**

#### **[CIVIL DIVISION]**

### **MISCELLANEOUS APPLICATION NO.1048 & 1109 OF 2024**

## **(ARISING FROM CIVIL APPEAL NO. 37 OF 2024)**

- **1. CONSORTIUM OF EAA COMPANY LTD AND EAST AFRICA AUTO TECHNICAL TESTING** - **2. UGANDA NATIONAL BUREAU OF STANDARDS:::::::::::::::::: APPLICANTS**

#### **VERSUS**

- **1. QUALITY INSPECTION SERVICES INC JAPAN** - **2. AUTO TERMINAL JAPAN:::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS**

#### **BEFORE: HON. JUSTICE SSEKAANA MUSA**

#### **RULING**

The two applicants filed separate applications which have been consolidated and brought these applications by way of Notice of Motion against the respondents under Order 46 r 1,2 & 8 of the Civil Procedure Rules, for orders that;

- *a) The orders made by this Honourable court on the 4th of October, 2024 in Civil Appeal No. 37 of 2024 be reviewed and set aside by this Honourable Court.* - *b) This Court doth find Procurement Ref No. UNBS/CONS/2023-2004/00052 a nullity and cancels the same together with all contracts signed thereunder.*

- *c) That this Honourable Court Orders Uganda National Bureau of Standards to undertake a fresh procurement.* - *d) Costs of this application be provided for.*

The grounds in support of this application are set out in the Notice of motion and affidavit of *Mr. Anthony Kusingura* an advocate working with M/s Nsubuga & Co. Advocates for the 1st applicant and *Eng John Paul Musimami* Deputy Executive Director-Compliance for the 2nd applicant which briefly states that;

- 1. There is an error apparent on the face of the record for this Honourable Court to have made a finding in Civil Appeal No. 37 of 2024 that the Uganda National Bureau of Standards unjustifiably failed to re-evaluate the applicants' bids through all the successive stages of evaluation in breach of the procurement laws and still go ahead to uphold the outcomes of the impugned procurement rather than declare the same a nullity. - 2. There was error apparent on the face of the record for this Honourable Court to have made a finding that the 1st applicant's bid together with that of Auto Terminal Japan Limited, Pal Auto Garage Ltd, Automative Analysis Ltd JV were not subjected to the detailed evaluation and for the same court to have gone ahead to uphold the 1st respondent as having emerged the best evaluated bidder whereas under those circumstances there were no competing bids for the honourable Court to declare that one bidder emerged as best evaluated. - 3. There is also an error apparent on the face of the record for this Honourable Court to have made a finding that the 1st respondent unjustifiably failed to re-evaluate the applicants bids as Ordered by the PPDA Appeals Tribunal in Applications No. 31 and 32 of 2024, yet they were in custody of Uganda National Bureau of Standards and available for considerations through all the successive stages of evaluation and visit that failure on the applicant as a bidder.

- 4. That the recommendation to the contracts committee for the award of contract to all the bidders (Quality Inspection Services Inc Japan; Consortium of EAA Company Ltd & East Africa Auto Technical Testing; AutoTerminal Japan) was supported by the minutes of the evaluation committee which resulted into the issuance of the notice of best evaluated bidder notice and the said minutes did not include any technical/detailed evaluation of any of the bidders. - 5. That the initial re-evaluation report which had recommended an award contract to only the 1st respondent was rejected by the contracts committee and the same was sent back to the evaluation committee for re-evaluation of all bidders which clearly means that the same was discarded. - 6. That the court relying on the discarded evaluation report by the contracts committee was irregular and an apparent error on the face of the record. - 7. That the applicant has as a result suffered a legal and operational grievance from the orders made in Civil Appeal No. 37 of 2024 as far as the provision of pre-export verification of conformity services of used motor vehicles as follows; - a) The works/services offered per the contract are aimed to protect the public and country against health hazards that court arise from the importation of motor vehicles with radiation emissions. - b) Based on the nature and volume of services, it is not viable for the obligations under contract to be executed by one service provider. Also based on record of work done on contract so far, the 1st respondent does not have capacity to perform the contract alone. - c) The award of the contract to only one service provider would have an effect on the government policy on promotion of competition and will negate the efficiency, adaptability and development of the country's economy.

8. That the contract in question was signed and was being implemented by the appellant as a stop gap measure for the continuity of the provision of the Pre-Export Verification of Conformity of used motor vehicles service and the 2nd applicant is in the process of having the main procurement completed by April, 2025.

In opposition to this application the 1 st respondent through *Brian Kuria Miru* the Managing Director of the 1st respondent filed an affidavit in reply briefly stating that;

- 1. This court did not make any error apparent on the face of the record in its judgment in Civil Appeal No. 37 of 2024, by upholding the outcome of the impugned procurement after finding that the 1st respondent failed toreevaluate the applicant's bids through all successive stages of evaluation, in breach of the procurement laws. - 2. This court rightly found that the Notice of Best Evaluated Bidder could only stand to the extent that the award of contract was made to the 1st respondent, because it's only the 1st respondent's bid that was subjected to evaluation methodology and criteria prescribed in the bidding document. - 3. The contents of the affidavit are false because the applicant did not present any evidence of a re-evaluation of the other 2 bidders bids and there was no error apparent on the face of the record. - 4. There was no error on record because the Evaluation Committee meeting of 22nd January as directed by the contracts committee in a meeting held on 15th January 2024, was to review the evaluation report of 11th January 2024 in respect to the errors in the bids of the *(Consortium of EAA Company Ltd and East Africa Auto Technical Testing and Auto Terminal Japan Ltd, Pal Auto Garage Limited, Africa Automotive Analysis Limited JV)* and therefore the report was not discarded but was rather sent back for review and revaluation of the bids.

The 1 st applicant was represented by *Richard Nsubuga and Monica Namuli* and the 2 nd applicant was represented *Doreen Nanvule, Dorothy Kabugo and Solomon Byaruganda* and The 1st respondent was represented by *Noeline Chandiru* holding brief for *Renato Kania* while *Mark Kiiza* represented the 2nd respondent.

In the interest of time the respective counsel were directed to make written submissions and i have considered the respective submissions.

## **DETERMINATION**

### *Whether this is a proper case to review the Judgment?*

The 1 st respondent sub mitted that the application for review of the decision of the High Court while exercising appellate jurisdiction is not maintainable in law, is incurably defective and incompetent and should be dismissed with costs.

The 1st respondent contended that section 98 of the Civil Procedure Act cannot be used to override an existing statute or rule and cannot be used to create new rules of substantive law.

The 1st respondent's objection to the application is premised on inherent powers of court and general provisions relating on remedies, which powers were not contemplated by Parliament in legislating section 118(6) of the Public Procurement and Disposal of Public Assets Act. The law provides and grants the High Court appellate jurisdiction on questions of law only and a decision or order of the High Court under section 118 shall be final and conclusive and shall not be subject to an appeal to any other court.

It was counsel's submission that the High Court sitting as an appellate Court therefore has no power to review its own judgment given on appeal under any special jurisdiction created under Section 118 of the PPDA Act.

It was contended that the High Court becomes *functus officio* and ceases to be seized of it and it cannot re-open it for purpose whatsoever. There cannot be a review of an appellate decision of the High court or Final Order unequivocally made since the result would be to trigger another process.

The 2nd respondent's counsel submitted that it is right that no appeal is allowed under Section 118 of the PPDA Act, however, any party aggrieved by the High Court's judgment I n procurement matters has a right to apply for review such a decision under section 82 of the Civil Procedure Act provided such a person meets the grounds set out under Order 46 of the Civil Procedure Rules.

The 2nd applicant further submitted that the doctrine of *functus officio* relied on by the 1st respondent has exceptions and review is one of them. It was contended that review is a judicial re-examination of the case in order to rectify or correct grave and palpable errors committed by court in order to prevent a gross miscarriage of justice and not an appeal as put by the 1st respondent. The applicant's application for review is not an appeal or a disguised appeal but rather an application raising valid grounds of review.

## *Analysis*

The court has jurisdiction to correct its own record either to weed out errors on the record or to serve the ends of justice. This power is exercised by High Court whether it is sitting as a court of first instance or an appellate court. That the Civil Procedure Act and the rules of the court are not discriminative on what nature of cases a review application can be made meaning that it permits review of normal suits in the same measure as appeals

Once there are errors of law and fact or mistakes apparent on the face of the record and which stares at the face of anyone who sees without any other question and they need to be rectified so that they do not remain on record to be followed by lower courts.

# *Whether there is a mistake or error apparent on the face of the record in the Judgment and Orders made in Civil Appeal No. 37 of 2024?*

The applicants in their submissions contended that there is an error or mistake apparent on the face of the record since the court found that UNBS was in breach of the procurement laws and yet still went ahead to uphold the outcomes of such a procurement in favour of one bidder, 1st respondent.

The applicant further submitted that the court having found that the technical evaluation of the bids of the applicant and that of Auto Terminal Japan Limited, Pal Auto Garage Ltd, Africa Automative Analysis Ltd JV had not been done past the preliminary stage, it implies that there was no way to ascertain whether the 1st respondent emerged the best evaluated bidder in absence of the technical evaluation of other bidders.

The 1st applicant further challenged the judgment for apparent incorrectness after the court found grave omissions of mandatory procedures committed by UNBS in breach of procurement laws and visit that failure on the applicant by cancelling their contracts yet their bids were readily available for further evaluation by the 2nd applicant and the 1st applicant had played no part in the 2nd respondent's failure to further evaluate her bid.

The 2nd applicant submitted that the Notice of Best Evaluated Bidder can only stand to the extent that the award of contract is made to the 1st appellant was based on an impugned report and minutes in earlier sitting. The evaluation report of January 11th 2024 was no longer applicable and binding and it was thus an error apparent on record for the court to rely on the same.

The 2nd respondent contended that the decision to award the contracts to all the respondents by Contracts Committee was based on minutes of the evaluation committee dated 20th January 2024 and these minutes were not backed a detailed technical evaluation report as per the criteria in the bid document for all bids including the 1st respondent's bid in accordance with procurement regulations.

Having found that the procurement was not in accordance with procurement laws, court ought to have nullified the entire process or direct the applicant to evaluate all the bids and not allowing only one bidder to benefit from the impugned procurement.

The 1st respondent submitted that there is a clear distinction between an erroneous decision and an error apparent on the face of the record. The first can be corrected by a higher forum; the latter can only be corrected by the exercise of review jurisdiction. Only manifest error would be a ground for review.

Counsel for the applicant contended that the allegations of a misdirection of the judicial officer on matters of law, cannot form the basis for an application for review. The allegations by the applicants can only establish error apparent on the face of the record through a long drawn process of reasoning on points on which they may be conceivably two opinions. At such a point they cease to be errors on the face of the record but allegations of an erroneous decision which then becomes a ground of substantive appeal than review.

It was submitted that the granting of this application has undesired absurdity of upholding the illegalities that were committed by the 2nd applicant. It would also be to validate the irregular and illegal proceedings in the evaluation of the bids of the 2 nd and 3rd bidders.

## *Analysis*

The law on review is set out in Section 82 of the Civil Procedure Act and Order 46 rule of the Civil Procedure Rules. The applicant has premised his application on *" Mistake or error apparent on the face of the record"*

Review means re-consideration of order or decree by a court which passed the order or decree.

If there is an error due to human failing, it cannot be permitted to perpetuate and to defeat justice. Such mistakes or errors must be corrected to prevent miscarriage of justice. The rectification of a judgment stems from the fundamental principle that justice is above all. It is exercised to remove an error and not to disturb finality.

Reviewing a judgment/ruling based on mistake or error apparent on the face of the record can only be done if it is self-evident and does not require an examination or argument to establish it.

An error which has to be established by a long drawn out process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Whether or not a decision or order should

# be reviewed is matter within the Judge's own discretion. *See Civil Procedure and Practice in Uganda by M & SN Ssekaana page 453*

In the present case the applicants fault the appellate Judge for not cancelling the entire procurement process and subsequently awarding the contract to the 1st respondent. The decision of the court was premised on the manner in which the 2nd applicant casually dealt with the procurement process without conducting a technical evaluation. It was obvious that the 2nd respondent wanted to *'balance the boat'* by making a making an award to all the three bidders even without evaluating their technical competence in order to appease those who had been rejected in the first round where the 1st respondent had emerged the best evaluated bidder.

The court had been alive to the fact that the process had been concluded with the 1 st respondent as the best evaluated bidder. It was unfair for the UNBS to award all the three bidders without subjecting the other two bidders to the same rigors they had taken the 1st respondent through. This was an act of impunity or breach of the standard procurement processes which was quite absurd and unfortunate of a public entity. The court indeed found the whole process was manipulated against the against the procurement laws and regulations and this had informed this courts decision to an extent.

The clear intention of the court was to show the flawed process and flagrant breach of the procurement legal regime and it would be on this basis that the court would review its earlier decision. The court has inherent jurisdiction to recall an order or to give effect to its manifest intention to nullify the entire procurement process which had resulted in awarding the contract to all the three bidders without any justifiable reasons.

The essence of review must ordinarily deal with straightforward issues which would not fundamentally and radically change the judgment intended to be reviewed, otherwise parties would lose direction as to the finality of a decision made by a particular court. It is the duty of the court to see that no injustice is occasioned to a litigant and the court under its inherent powers can rectify and correct such injustice. See *Sara Lee Household and Body Care (K) Ltd v Damji Pramji Mandavia HCCC No. 114 of 2004*

The court acknowledges that the earlier decision had condemned the 2 bidders for the wrongs of the UNBS although they were direct beneficiaries of the 2nd applicant's illegalities and breaches. It is true this was error apparent on the face of the record although they were acting as innocent parties or they never protested the alleged breach of lack of evaluation of their bids. They had accepted the breaches for their benefit in sharing out this contract among all the three bidders as a win- win to all.

This application partially succeeds and the original order is set aside and is replaced with the following order;

# *The Procurement Ref. No. UNBS/CONS/2023-2024/00052 and the contracts signed thereunder are cancelled. The 2nd applicant should conduct a fresh and proper procurement with immediate effect.*

*The 2 nd applicant shall meet the costs of the 1st respondent in the Civil Appeal No. 37 of 2024.* I make no order as to costs in this application.

It is so ordered.

*SSEKAANA MUSA JUDGE 20 th November 2024*