Leo Luthombi Liambele (Suing as Secretary of the Outdoor Advertising Association of Zambia ) v Zambia Airports Corporation Limited (2020/HP/375) [2020] ZMHC 471 (29 May 2020)

IN THE HIGH COURT FOR ZAMBIA 2020/HP/375 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: LEO LUTHOMBI LIAMBELA (Suing as Secretary of the Outdoor Advertising ·Association of Z~mbia PLAINTIFF AND ZAMBIA AIRPORTS CORPORATION LIMITED DEFENDANT ·. Before the Honourable Mrs Justice Ruth Chibbabbuka on the 27th day of April, 2020 For the Applican ts: Mrs N. S. Mabushi, Messrs Mambwe, Siwila & Lisimba Advocates For the Respondent: Ms R. Chansa, In -house Counsel RULING Cases ref erred to: 1. Shell BP Zambia Limited v~ Coniduris & Others ( 1975) Z. R .1 74 (SC) 2. Zambia Revenu e Authority vs Makeni Gardens SCZ Appeal No. 69 1995 3. Cornm1micalions Authority vs Vodacorn Zwnbia U111ited SCZ No. 2 1 2009 4 .. Tawela Alcapelwa and others vs Josiah Mubulcwanu l,itiyu Nywnbu Appeal Case No. 004 2015 scz 5. American Cynamid Co Vs. Ethicon Ltd 1975 AC 3 96 /-JL Legislation referred to: /\rbitmtion Act No. 14 of 2000 The Public Procurement Act, No. 12 of 2008 Rules oftlte Supreme Cowt, White Boole, .1999 Edition Rl I This is an applica tion by the plaintiff, firstly, for a mandatory injunction for an Order directing the defendant to formulate a fresh Tender that will ensure fair and equal participation and secondly for an interim injunction restraining the defendant from awarding a contract for Tender No. ZACL/ONB/ AS/03/2020. The application is m a d e pursuant to Order 29 Rule 1 of the Rules of the Supreme Court, 1999 Edition. The affidavit in support of this application is sworn a nd deposed to by Leo Luthombi Liambela and h e avers as follows: In or around March, the defendant advertised a Tender No. ZACL/ONB/ AS/03 /20 2 for the provision of a d vertising space at the new terminal building at the Kenneth Kaunda Internation a l Airport. The said tender has mate ria l anomalies; harshly discriminates against members of the plaintiff's association and on the face of it promotes corruption and fraud. The plaintiff wrote to the defendant to withdra w the te nde r as it was discriminatory and illegal on the face of it but th e d efe n dan t h as continued with the tender process. In light of the aforesaid the pla in t iff's m em bers would s uffer irre parable d a mage if t he defendant is not restra ined from contin u in g with the te nder process a nd subsequently award a con t ract. In o pposing the a pplicatio n, the defendant swore a n affidavit, deposed to by Ale ndo Mbe we, whose ave rrne nts are as follows: The tender was advertised on the 14 th Februa ry, 2020. The p la intiff's membe rs we re give n an opportunity , to pre se nt any anomalies to th e d e fend a nt under clau se 10 of Section 1 in the Ins truction to Bidders in the said Te nder a nd they wer e a lso given an opportunity to attend a m a nda tory pre- bid meeting on th e 2 1 s t February, 2020 where a ll ide ntified a n om alies could be a ddressed. The p la intiff's 1nembers did not take advantage of these a venues provided to inforn1 the defe ndant of any a noma lies. The tender does not discriminate against members of the plaintiff's association a nd on the contra ry the tender provides unde r cla use 5 .5 (b) that participation by local n a tiona ls as per the Citizen Economic Empowerment Act will be an add e d advantage . The d e fe nda nt is not an institution w hich R2 promotes corruption and fraud in its Procurement process and will show that the plaintiff has just misinterpreted the relevant provision in the Tender document. The contents of paragraph 6 of the plaintiff's affidavit are 1n contention as following receipt of the said letter, the defendant responded on 6 th April, 2020 addressing the concerns raised by the plaintiff. The due process as provided by the Zambia Public Procurement Act and other laws of Zambia were followed by the defendant and the plaintiff like all other bidders to the . Tender under coptention was give,n the opportunitY: to seek clarifica~ions. As such, the plaintiffs were not disadvantaged in any way. The plaintiff will not suffer irreparable damages if the defendant is not restrained from continuing with the Tender process and subsequently award the contract to a successful bidde r. The proper procurement process was followed and the defendant courteously a ddressed the p la in tiff's concern via letter dated 6 th April, 2020, even wh e n the com munication ch a nnels provided in the Tender document were n ot u tilized tim eously. At the hearing of the m a tt er , counsel for the plaintiff relied on the a ffidavit in support or th e a pplica tion . Counsel went on to refer this court to the case of Shell vs B . P 1 for the.: argument tha t the court has power to grant an injunction if t. he right t.o relief is clear a nd where ther e will irre para ble damage. On th e issue of righ t to relief, cou nsel referred this Court to the case of Zambia Revenue Au t hority vs Makeni Gardens2 whe re the Supre m e Court held that a ll the Court n eed ed to do a t interlocutory sta ge is to be s a tisfied that there is a s erious question to be tried a nd th a t the Court ought to interfere to preserve the property without wa iting for the right to be established at t rial. It was counsel's contention tha t there is a serious question to b e tried as there is a dis pute over the legality of the te nde r doc ument a nd a s such the right to relief was clear. In relation to irreparable injury, counsel argued that in the event tha t a n injunc tion was not gr a nted, the d efe nda nt would proce ed to a ward a contrac t of the s aid tender and m e mbers of the plaintiff's a ssocia tion would s uffe r injury whic h c ould not be a toned for by damages . R3 In opposing these submissions, counsel for the defendant relied on the affidavit in opposition as well as their skeleton arguments all filed on the 24th April, 2020. It was counsel's contention that the plaintiff had failed to satisfactorily establish how the defendant has failed to carry out the Procurement Process for the tender in question in accordance with the prescribed law. Counsel went on to argue that the defendant had in its letter to the plaintiff explained how it had conducted the tender in question in line with I the guiding principles in Zambia. The Court was referred to the case .of . . ' Communications Authority vs Vodacom Zambia Limited3 for the argument that it is for the party seeking a n injunction to establish clearly that he is entitled to the right which he seeks to be protecte d by an injunction. It was counsel's considered view that as the plaintiffs right to relief was not clear, the prospect oi s uccess of the plain tiff's claim was not clear from the onset. In r elation to irrepa rable injury, counsel argued that the loss and inconvenience to the other participants of the Lender process who followed the procurement process wou ld be far grea ter than the inconvenience that the plaintiffs would suffer. Counsel urged I.his court to dismiss the plaintiff's application . J am indcbtccl lo both cou n sel for their submissions and arguments which I h ave take n into c:onsid c ralion. Before, I d e lve into the a rguments raised by both counsel a pertinent issue in rela tion to the jurisdiction of this Court to hear not only this application but the substantive cause of action must be addr essed. A perusal of the affidavit in support of this a pplication, the further affidavit filed by the plaintiff, the affidavit in opposition as well as the substantive pleadings reveals that the dispute between the two parties arises out of a public procurement proce·ss which process is governed by The Public Procurement Act, No. 12 of 2008. Section 70 of the Public Procurement Act provides that anyone that is aggrieved with a procuring entity may appeai to the Zambia Public Procurement Authority. Upon a cursory perusal of the record there is no evidence of such ~teps having been taken by the plaintiff. More cardinal however to the R4 jurisdiction of this Court is that Section 71 of the said Public Procurement Act provides: ' "Any dispute over the matter or decision made under this Act shall be determined by arbitration in accordance with the provision of the Arbitration Act.'' The above provision 1s couched in mandatory terms and as such the dispute between the parties must be dete~mined by Arbitr~tion. However, Section 11 sub-rules (1), (2) paragraphs (c) and (d) and (4) paragraph (a) of the ' ' Arbitration Act No. 1 9 of 2000 provides that: "11 (1) A party may, before or during arbitral proceedings, request from a court an interim measure of protection and, subject to subsections (2) (3) and (4), the court may grant such measure. (2) Upon a requesl in terms of s ubsection (1), the court may grant- (c) an interim injHncl ion or other interim order; or (d) any other orclr-:r lo ens ure that an award which may be made in th e arbitral proceedings is not rendered ineffectual. (4) The court s hall not grant an orde r or injunction under this s ection unless - (a) the arbitral tribunal has not y e t been appointed and the matter is urgent; It is apparent that there has been no arbitral tribunal appointed to resolve this dispute and on that ba sis this court has jurisdiction to hear the a pplication for an interlocutory injun ction . Howeve r, the parties are at this stage a dvised to take into consideration and show cause to this court at the RS Status Conference why the matter should not be stayed and referred to Arbitration. Turning now to the injunction application the Suprem e Court in the case of Tawela Akapelwa and others vs Josiah Mubukwanu Nyumbu4 outlined the principles that a court should take into consideration on whether or not to grant an injunction. Justice Malila at pages 20 to 21 of the said judgment aptly stated as follows: "It is settl~d that a judge co~sidering an appli~ation for an interim injunction ought, as a matter of practice, to be guided by the principles which were so clearly set out in the American Cynamid Company Ltd. v. Ethicon Limited5 cited by learned counsel. It is clear to us that both learned counsel are fully alive to those principles to guide the court in considering whether or not to grant an injunction, n amely; ( 1) whe the r there is a serious question to be tried; (2) w hether damages would be adequate to compensate the plain llff (respondent in this case); (3) whe the r the ha.lance of convenience tilts in favour of granting the injunction to the plaintiff (respondent); and (4) whether the plaintiff (respondent) has come to court with clean hands. These considerations s hould be foremost in the mind of any judge considering whether or not to grant an injunction. " These guiding principles are for the preserve of the court to assess as to their existence when determining whether to grant an injunction or not. The parties at best can only attempt to persuade the court as to their existence or non-existence. On that premise I am ably guided by these principles in d irec ting my mind to the set of facts in this case. R6 Upon examin ation of the same, it is unequivocally clear that there is a serious case to be tried with regard to the legality of the tender document as well as the procurement process that was followed by the defendant. However, in relation to damages I am of the consider ed view that this is a case where the injury suffered by the plaintiff can be atoned for by damages. This is so because the procurement process is one that revol"."es around a procuring entity seeking a service for which, there will be a reward in monetary terms to the successful° bidder. As such there is no guarantee that a particular bidder, such as the plaintiff in this case, is assured of being awarded the tender. Further, this Court is alive to the fact that, there are a number of business entitie s involved in this process and should it be discovered through the dispute res olution procedure , that the tender document was in fact legal a nd the pr ocure m ent proces s wa s in line with the re quired statutory provisions a nd guidi n g principle s , th ere wo uld not only be damages suffered by the defendant but t he n~ \\"Ou ld a lso be inconvenience suffered by all the other prospect ive bidde rs as a ll ud ed t.o by counsel for the defendant. Con seque ntly the: ba lan ce of c onvenience does not tip in favour of the pJa inLiff a s s hou ld it be fo und Lh a t a n injunction should not h ave been granted, it is no t cerLDin whe::th cr th e pla intiff's association will be in a position to compen sate th e d efe nda nt as th e re has been no such demonstration before this Court. Whe reas sho uld it be found that the plaintiff should have been granted an injunction, th e d efenda nt in my view will b e able to adequately compensate the plaintiff. Turning to the final principle, the letter that th e d efendant has exhibited dated the 6lh April, 2020, which claims to address a ll the plaintiffs concerns, may reveal that the plaintiff has not come to court with clean hands. The veracity of the document however is yet to be tested a nd can only be adequately done a t a full hearing of the substa ntive matter. R7 Consequently, an injunction in my assessment would not be an equitable remedy given the prevailing circumstances in this case. The upshot of the matter is that, this is not an appropriate case for the granting of an injunction and the application is dismissed. A status conference is now set for hearing on the 13th July, 2020 at 09:00. Leave to appeal is granted. Dated th~ .......... 21?1. ~ .. day of .... ~<... . ... 2020 Ruth Chibbabbuka JUDGE R8