Kiyindi Electronical & Engineering Limited v Public Procurement & Disposal of Public Assets Authority (Civil Appeal 86 of 2020) [2023] UGHCCD 401 (18 September 2023)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION)

### **CIVIL APPEAL NO. 086 OF 2020**

[ARISING FROM PPDA APPEALS TRIBUNALS MISC APP NO. NO. 1 2020] KIYINDI ELECTRONICAL AND ENGINEERING LTD ====== APPELLANT VERSUS

PUBLIC PROCUREMENT AND

DISPOSAL OF PUBLIC ASSETS AUTHORITY ========= RESPONDENT

### **BEFORE: HON. JUSTICE EMMANUEL BAGUMA.**

### **JUDGMENT.**

### **1. Back ground.**

The Appellant formerly Applicant applied for administrative review to the Respondent authority and the decision was communicated to the Appellant/Applicant on 28th of September, 2020. The Appellant having been dissatisfied with the decision of the Authority, appealed against the same before the Tribunal. However, upon filing of the Appeal to the tribunal, he was informed that the time within which to Appeal had expired on 13th of October, 2020. The Appellant applied for extension of time within which to file an appeal to the tribunal and the same was dismissed.

- 2. The Appellant being dissatisfied with the decision of the tribunal appealed to this court on 10 grounds. However, when the matter came up for hearing, both counsel agreed to frame 4 issues for court's determination to wit;- - *i. Whether the members of the PPDA appeals tribunal erred in law when they dismissed miscellaneous application No. 1 of 2020 seeking for enlargement of time within which to file an appeal?* - *ii. Whether the members of the PPDA appeals tribunal erred in law to find that the decision of the authority was communicated to the appellant on the 28th day of September 2020 caused a miscarriage of justice?*

- *iii. Whether the members of the PPDA Appeals Tribunal erred in law to find that the time within which to appeal the authority's decision started running from the 29th day of September 2020 and expired on the 13th day of October 2020?* - *iv. What remedies if any are available to the appellant?*

# **3. Legal Representation.**

Counsel Bruno Sserunkuma represented the Appellant while Counsel Amanda Chrispa Lulu represented the Respondent.

4. At the hearing both counsel agreed to file written submissions and their details are on the court record.

# 5. **Duty of first Appellate Court**.

The duty of the first appellate court was stated in the case of **Baguma Fred VS Uganda SCC in appeal No7 of 2004** and **KifamuNte Henry Vs Uganda SC, (Cr) Appeal No. 10 of 2007,** where it was held that; "*…the first appellate court has a duty to review the evidence of the case, to reconsider the materials before the trial judge and makeup its own mind not disregarding the judgment appealed from but carefully weighing and considering it…''*

6. This Court therefore has a duty to re-evaluate the evidence to avoid a miscarriage of justice as it mindfully arrives at its own conclusion. I will therefore bear these principles in mind as I resolve the grounds of appeal in this case.

# **7. Submissions by Counsel for the Appellant.**

**Issue No. 1**

*Whether the members of the PPDA appeals tribunal erred in law when they dismissed miscellaneous application No. 1 of 2020 seeking for enlargement of time within which to file an appeal?*

- 8. Counsel submitted that section 91L of the Public Procurement and Disposal of Public Assets Act No. 1 2003 provides for application for review by the tribunal within 10 (ten) working days of being served by the authority with its decision. That pursuant to regulation 91T, statutory Instrument No. 16 of 2016 the PPDA (Tribunal) (Procedure) Regulations under rule 36(1) provides that; "in any matter relating to the proceedings of the Tribunal for which these Regulations do not provide, the rules of practice and procedure of the High Court shall apply". - 9. Counsel submitted that rule 34 of the same regulations provides for application of civil procedure Act and CPR and contended that the learned members of the tribunal erred when they dismissed the Appellant/Applicant's application for enlargement of time which is provided for under the Civil Procedure Act. That they should have exercised their discretion to enlarge time within which to file for review.

# 10.**Issues 2 and 3**

*Whether the members of the PPDA appeals tribunal erred in law to find that the decision of the authority was communicated to the appellant on the 28th day of September 2020 caused a miscarriage of justice?*

*Whether the members of the PPDA Appeals Tribunal erred in law to find that the time within which to appeal the authority's decision started running from the 29th day of September 2020 and expired on the 13th day of October 2020?*

11. Counsel submitted that there was no evidence before court to prove that the decision of the authority was communicated to the appellant's lawyers on the 28th September 2020. He further submitted that the PPDA Appeals Tribunal simply believed counsel for the Respondent without any evidence or affidavit evidence of service of the decision.

### **12. Issue 4:**

### *What remedies if any are available to the appellant?*

13. Counsel submitted that this court as the first appellate court has a duty to reevaluate the evidence and with an interest to do justice to the appellant to be pleased to consider the application on merit to avert further considerable delay. He referred to the case of **Afayo Luiji & Anor Vs Izio Enzama HCMA No. 73 of 2017** where court held that; *"In an application of this nature, the court is concerned with finding sufficient reason why the applicant should be given more time and the most persuasive reason that he or she can show is that the delay has not been caused or contributed to by dilatory conduct on his or her own part (see Shanti v. Hindocha and others [1973] EA 207). Court must balance considerations of access to justice on the one hand and the desire to have finality to litigation on the other."*

14. Counsel submitted that according to paragraph 3, 10 and 12 of the affidavit in support which are to the effect that the decision of the PPDA authority was communicated to the Appellant/Applicant through her lawyers on 30th/09/2020 in the evening hours at the time when the Appellant's/Applicant directors were not in Kampala but upcountry participating in NRM elections and hence they could not make a decision to instruct a lawyer to appeal within time.

### 15.**Submissions by counsel for the Respondent**.

#### **Issue No. 1**

# *Whether the members of the PPDA appeals tribunal erred in law when they dismissed miscellaneous application No. 1 of 2020 seeking for enlargement of time within which to file an appeal?*

- 16. Counsel referred this court to section 91L (1) (c) of the PPDA Act 2003 to submit that the provisions of that section are coached in mandatory terms from the use of the word shall and as such without explicit powers in the PPDA Act of 2003 granted to the Tribunal to extend the time within which a litigant should lodge an application before it, the Tribunal cannot extend the time within which a litigant should lodge an application before it. - 17. Counsel argued that the purpose of fixing the time for lodging an application before the PPDA Appeals Tribunal is to ensure that applications arising out of public procurement and disposal of public assets proceedings are disposed of expeditiously to enable the commencement and advancement of

government projects. He referred to the case of **Kyagulanyi Ssentamu Robert Vs. Yoweri Museveni Tibuhaburwa Kaguta Electoral Commission and the Attorney General Supreme Court Miscellaneous Application No.1 of 2021** where court stated at page 24 that; "The steps leading to the determination of the petition are awarded in mandatory terms which require strict compliance… the court is restricted to those steps provided for under the law. There is no doubt therefore that the intention of the legislature in providing timelines in determination of the petition is to prevent delay and ensure expeditious hearing and conclusion of election related disputes."

- 18. Following the above authority, counsel submitted that the intention of the strict timelines within which litigants in the public procurement and disposal of public assets sector are meant to lodge applications was to ensure that justice is served expeditiously for the continuity of the procurement process in question. - 19. Counsel relied on the case of **Sitenda Sebalu vs. Sam K. Njuba & another Supreme Court Election Petition Appeal No. 26 of 2007** to challenge the Appellant's submission. He argued that in absence of a provision in the PPDA Act and Regulations granting the Tribunal the discretion and power to enlarge time within which to Appeal, the Tribunal does have such power to extend time

# 20.**Issues 2 and 3**

21. Counsel contended that it tendered evidence of service of the decision to the Appellant on 28th of September, 2020 to the Tribunal. He stated that the decision was served by email to the Appellant's lawyers on 28th September, 2020 and the hard copy was served on 29th of September, 2020 and the same is indicated under paragraph 4 of the Respondent's Affidavit in Reply which was filed to the Tribunal's Registry and that is what the Tribunal relied on to make a finding that the time within which to Appeal the Respondent's decision started running from 29th of September 2020 and expired on 13th October, 2020.

- 22. Counsel argued that delivery of the decision by email to the Appellant's lawyers was effective as per Guide line 2 (b) of the Uganda Judiciary Office Instruction No. 2 of 2020. - 23. Counsel submitted that the members of the Tribunal correctly made a finding that the decision of the Respondent was communicated to the Appellant on the 28th day of September, 2020 after which the days within which to lodge an Appeal before the Tribunal started running.

# 24.**Issue No. 4:**

# *What remedies if any are available to the appellant?*

25. Counsel referred court to **Fredrick J. K Zaabwe Vs. Orient Bank & 5 others** and argued that this being a first appellate court, it's under a duty to evaluate the evidence on the court record and come up with its own conclusion.

# **26. Analysis of court.**

# **Issue No. 1:**

*Whether the members of the PPDA appeals tribunal erred in law when they dismissed miscellaneous application No. 1 of 2020 seeking for enlargement of time within which to file an appeal?*

*27.***Section 91L (1) (C) of the Procurement and Disposal of Public Assets Act of 2003** provides that; *"An application to the Tribunal for review of a decision of the Authority shall be lodged with the Tribunal within ten working days of being served by the Authority with its decision."*

- 28. Following the section cited above, it is my finding that the section is coached in the mandatory terms. There is no enabling provision within the PPDA Act 2003 that accord the Tribunal power to enlarge or extend time. The Civil Procedure Act and Rules on the time extension cannot be used in this regard. I therefore agree with the finding of the Tribunal that the jurisdiction of the Tribunal is only available when the Application has been filed within ten working days from the date of the decision of the authority. - 29. I agree with the decision in **Makula International Ltd Vs. Cardinal Nsubuga & Another Civil Appeal No. 4 of 1981**, where it was held that a court has no jurisdiction or inherent jurisdiction to enlarge a period of time laid down by the statute. - 30. In the circumstances, I have no reason to fault the finding of the Tribunal on this issue. - 31. Issue No. 1 fails

# **32. Issue No. 2 and 3**

33. From the court record it is evident from the decision of the Tribunal under paragraph 3 that the Authority delivered its decision to the Appellant on 28th September 2020. This position is however not disputed by the Appellant since the Appellant agreed that they were out of time and tried to convince the Tribunal that it had jurisdiction to enlarge time.

- 34.**Section 91L (C) of the PPDA Act** is very clear that the time within which to file an Appeal to the Tribunal is 10 days. Failure to do so, the Appellant extinguished his right. - 35. In the view of the above therefore, the Tribunal did not cause any miscarriage of justice when it found that the time within which to file an appeal to the Tribunal started running from 29th of September, 2020 and expired on 13th of September, 2020. Hence, the Appellant was out of time and the Tribunal was right to dismiss the Application in that regard.

# 36. Issues No. 2 and 3 fails

# **37. Issue No. 4**

# *What remedies if any are available to the appellant?*

38. Having found issues No. 1, 2 and 3 of this appeal in the negative, the Appellant is not entitled to remedies sought.

# **39. Conclusion.**

In the final result, this appeal fails with the following orders;-

- i. The appeal is hereby dismissed. - ii. The decision and orders of the Tribunal are upheld. - iii. Given the nature and circumstances of this appeal, no order as to costs.

Dated, signed, sealed and delivered by email on this **18th** day of **September**, 2023.

Baguma Emmanuel

Judge.