Zambia Public Procurement Authority v Shekela Safaris Ltd (Appeal 39 of 2022) [2022] ZMCA 88 (15 December 2022)

IN THE COURT OF APPEAL FOR ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) APPEAL/039/2022 CAZ/08/495/2021 BETWEEN: ZAMBIA PUBLIC PROCUREMEN, x APPELLANT AND SHEKELA SAFARIS LIMITED RESPONDENT CORAM: KONDOLO SC, SICHINGA SC AND SHARPE-PHIRI, JJA On 16th November, 2022 and 15th December, 2022. For the Appellant: | Legal Counsel - Zambia Public Procurement Authority For the Respondent: Mr. Willis Muhanga of Messrs Willis Clement & Partners Legal Practitioners JUDGMENT KONDOLO SC, JA delivered the Judgment of the Court. CASES REFERRED TO 1. Faustine Mwenya Kabwe & Aaron Chungu v Justice Earnest Sakala, Justice Peter Chitengi & Others $CZ/25/2012 2. Steven Katuka & Others v Attorney General & Others 2017/CC/004 3. Milford Maambo & Others v The People SCZ/31/2017. 4. John Mugala & Kenneth Kabenga v The Attorney General (1988-1989) ZR 171 (SC.) 5. Murray & Roberts Construction Limited v Lusaka Premier Health Limited & Industrial Development J2 of 32 Corporation of South Africa Limited SCZ Appeal/141/2016. 6. Hakainde Hichilema & Others v The Government of the Republic of Zambia SCZ Appeal No. 28/2017 7. Odys Oil Company Limited v The Attorney General & Constantinos James Papaoutsis SCZ/4/2012. 8. Hu He Rong v Charity Oparaocha SCZ Appeal/111/2000 9. The Minister of Home Affairs & Attorney General v Lee Habasonda & Others (2007) ZR 207. 10. Zulu v Avondale Housing Project [1982] ZR172 STATUTES REFERRED TO 1. The Arbitration Act No. 19 of 2000 2. Public Procurement Act No.12 of 2008 (Repealed) 3. Public Procurement Regulations Statutory Instrument No. 63 of 2011 4. Public Procurement Act No. 8 of 2020 5. Interpretation and General Provisions Act, Chapter 2 of the Laws of Zambia. 1. INTRODUCTION 1.1 This is an appeal against the judgment of Honourable Mr. Justice Charles Kafunda delivered on 29t November, 2021 under Cause No. 2021/HP/1050. 2. BACKGROUND 2.1 The Appellant is the statutory authority that regulates public tenders and was the Respondent in the Court below, J3 of 32 while the Respondent herein was the Applicant. In this judgment, we shall refer to the parties by their designations here. The words “the Authority” will also be used to refer to the Appellant. D2 This matter arises from a public tender floated by the Ministry of Tourism and Arts (the Ministry) for 19 Safari Hunting/Photographic Tourism Concessions in Nyampala Game Management Area (GMA). 2.3 The Respondent submitted a bid which was rejected and, aggrieved by the rejection, it commenced an action by Originating Summons, seeking the following reliefs: 1. That the Court does interpret section 70 of the Public Procurement Act No. 12 of 2008 (repealed) as applicable at the material time, and the application of the appeal procedure envisaged under Regulations 170 to 174 of the Public Procurement Regulations, and determine whether the Regulation provisions are consistent with the substantive section of the law, taking into account section 20 (4) of the Interpretation and General Provisions Act, CAP 2 and if found inconsistent, declare them so. J4 of 32 2. An interim order to enforce section 70 (4) (b) of the Public Procurement Act No. 12 of 2008 (repealed) as applicable at the time and/or section 100 (4) (b) of the Public Procurement Act No. that no contract is to be awarded for the Nyampala Hunting Block pending resolution of the dispute. 3. Upon interpretation of the law as sought under relief number (a), an order to stay proceedings and refer the matter or dispute to arbitration pursuant to section 11 of the Arbitration Act, 2000, Regulation 8 of the S. I. No.75 of the Arbitration (Court Proceedings) Rules 2001 as read with section 101 of the Public Procurement Act, 2020. 3.0 RESPONDENT’S AFFIDAVIT IN SUPPORT OF ORIGINATING SUMMONS 3.1. The Originating Summons was supported by an affidavit in which the Respondent attested that on 31st December, 2020 it submitted its bid together with the Bid Submission Form Financial Proposal dated 18 December, 2020 in respect of a hunting concession in Nyampala Game Management Area (GMA). J5 of 32 3.2. The Respondent’s bid was duly evaluated and found to be responsive and by a letter dated 9tt February, 2021, the Ministry invited the Respondent to attend, and the Respondent did attend, the opening of its financial proposal on 10 February, 2021. 3.3. Financial proposals of five bidders were opened but despite being the best bidder, the Respondent was informed by a letter dated 5th March, 2021 that its bid was unsuccessful. 3.4. The Respondent responded, challenging the decision as being flawed and contrary to the facts, and raised the following points; 1. The reasons advanced for the non-responsiveness of the bid were not justifiable and transparent as envisaged under the Procurement laws; 2. The reasons advanced for the bid being non- responsive and that the [Respondent] did not pass the due diligence, was vague as the component that was failed in the due diligence was not stated or described. 3. The claim that the financial bid was unopened and did not proceed to the technical and financial stages of the evaluation was false and contrary to the facts as the [Respondent] was invited on 9» February, 2021 for the opening of Financial Bids. J6 of 32 3.5 The Respondent then formally appealed to the Appellant by lodging an Appeal Submission Form in accordance with section 70 of the repealed Public Procurement Act, 2008 and sections of the Public Procurement Regulations, 2011. The Appellant replied, stating that it, “would institute investigations and would render a decision thereafter.” 3.6 It was later brought to the Respondent’s attention that the Ministry had issued an undated public notice which explained in detail why each unsuccessful bid had failed, except in the case of the Respondent, where the only reasons provided were that the bid was “non-responsive” and “did not pass due diligence”. The public notice also showed that the Respondent and one other bidder, Muchinga Adventures’ financial proposals of K200,000 and US$151,000 respectively were better than that of the successful applicant, Kummawa Safaris Limited of UDS$140,000. iF In reaction to the Respondent’s challenge of the Ministry’s decision, by letter dated 13% April 2021, the Ministry J7 of 32 retracted the reasons given earlier as to why the bid failed and stated that the bid was responsive at both Financial and Technical Evaluation stages and that the financial proposal was in fact opened. 3.8 The letter stated that the bid was actually rejected after due diligence by the security wings and no further information could be divulged. It was deposed that this was contrary to the principles of public procurement. 3.9 Prior to receipt of the letter of 13 April, the Respondent had, in a letter copied to the Appellant informed the Ministry that it had withdrawn its appeal before the Ministry. The Appellant’s Director General acknowledged receipt of the letter and purportedly considered the matter closed. 3.10 The Respondent withdrew the appeal from the Ministry because it was advised that the correct authority to consider the appeal was the Appellant. The appeal to the Appellant was never withdrawn and the Respondent awaited determination of the appeal lodged with the Appellant on 24% March, 2001. 3.11 The Respondent’s lawyers wrote to the Appellant, following up on the Appeal and the Appellant replied that as far as it J8 of 32 was concerned, when the Appeal was withdrawn from the Ministry, it was also withdrawn from the Appellant. 3.12 The Respondent responded by saying that as far as it was concerned, the withdrawal of the Appeal from the Ministry was redundant as the Ministry had no power to determine the Appeal. Only the Appellant was empowered to determine the Appeal and its decision was still being awaited. 3.13 The Appellant maintained its position and closed the Appeal. 4. APPELLANT’S ORIGINATING SUMMONS AFFIDAVIT IN OPPOSITION TO 4.1. The Appellant attested that it had received a letter addressed to the Ministry and copied to the Appellant in relation to the Safari Hunting/Photographic tender referred to in the Respondent’s affidavit. The letter was an appeal dated 10% March, 2021. 4.2. The Appellant also received an Appeal Submission Form from the Respondent relating to the tender in line with the Appellant’s mandate as an appellate body. The Respondent was duly informed that the Appellant would investigate and consider the appeal accordingly. J9 of 32 4.3. That the Respondent wrote to the Ministry, withdrawing its appeal on 23 March, 2021 and the Appellant wrote back to the Respondent, acknowledging receipt of the appeal withdraw letter on 24th March, 2021. 4.4. The Ministry only replied to the Respondent’s appeal on 13% April, 2021, advising that the Respondent’s bid was rejected because it had failed a security due diligence conducted by the security wings. 4.5. It was then that the Respondent’s lawyers wrote to the Appellant, following up the appeal whereupon the Appellant advised that the appeal had been withdrawn and the matter was closed. 4.6. There was a to and fro on the question of the appeal having been withdrawn and the Appellant wrote to the Respondent on 6% August (“DKM 15), explaining to the Respondent that there was only one appeal procedure and it involved the procuring entity that conducted the tender process. The Appellant stuck to its position that the appeal had been withdrawn. 4.7. That by letter dated 20% August, 2021 the Respondent informed the Appellant that it had declared a dispute and J10 of 32 sought to refer the matter to arbitration under section 101 of the Public Procurement Act No.8 of 2021. 4.8. That the second relief sought is not tenable as it was directed to the Ministry, which is not a party to the dispute, but the Attorney General could be added as a party to respond to the issues raised in paragraph 36 of the Respondent’s affidavit vis-a-vis the status of the contract for the Nyampala Hunting block. 4.9. That in any event, the second relief sought by the Respondent is only applicable where there was a pending appeal but at that moment, there was no appeal pending. 4.10. The Respondent’s affidavit in reply attested that the court was at liberty to join the Attorney General to the action if it was shown that he had a sufficient interest in the matter. 4.11, The Respondent emphasised that the court was only being called upon to resolve a point of law as to whether Regulations to of the Public Procurement Regulations are consistent with the requirements of section 70 of the Public Procurement Act No. 12 of 2008 and that the question should be resolved without recourse to the evidence which the parties were meant to present at the arbitration. J11 of 32 4.12. That if the court found the regulations to be inconsistent with section 70, then they should be struck down. It was envisaged that in so doing, the court could avoid resolving issues meant for arbitration, thus avoiding the danger of the court and the arbitral tribunal making conflicting decisions. 5. DECISION OF THE HIGH COURT 5.1. The trial Judge identified three questions for determination as follows; 1. To interpret the provisions of the Public Procurement Act No. 12 of 2008 and the Public Procurement Regulations, 2011; 2. To determine which body constitutes the Authority imbued with the mandate to deal with appeals relating to public procurement. 3. To ascertain whether there is a_ conflict between provisions of the Act and those in the regulations. 5.2. The trial Judge stated that he would employ the rules of statutory interpretation espoused in the cases of Faustine Mwenya Kabwe & Aaron Chungu v Justice Earnest Sakala"), Justice Peter Chitengi & Others ) and Steven J12 of 32 Katuka & Others v Attorney General & Others) and Milford Maambo & Others v The People") which guide that where the words of any provision are clear and unambiguous, they must be given their ordinary meaning unless this would lead to absurdity or be in conflict with the Constitution. 9.3. The trial Judge noted that when the appeal was lodged with the Appellant on 10‘ March, 2021, the Act in force was the Public Procurement Act No. 8 of 2008 (the repealed Act). The trial Judge reproduced section 70 of the said Act (which we shall not do here) and found that its provisions were not ambiguous. The section states that a person aggrieved by the decision of a procuring entity may appeal against the decision to the Authority. The section also details the appeal process and provides that a bidder or supplier who is aggrieved by the decision of the Authority may submit the matter to arbitration under section 71 of the said Act. 5.4. The trial Judge then considered the Public Procurement regulations and observed that Regulation 170 provides that a bidder or supplier aggrieved with a decision of a procuring entity may appeal the decision to the Authority in J13 of 32 accordance with regulation 171, which provides that the appeal should be signed by the bidder and addressed to the controlling officer or chief executive officer of the procuring entity. 9.0. He observed that regulation 173 provides for an action to be taken by the controlling officer or chief executive officer upon receipt of an appeal and this includes suspending the procurement process, instituting an investigation and submitting a written decision to the Authority, indicating whether the application should be upheld in whole, in part or rejected; the reasons for the decision; and, any corrective measure that should be taken by the bidder or supplier. 5.6, Under regulation 174, the Authority proceeds to make a finding based on information received from the procuring entity, with or without holding a hearing of the parties. Dts The trial Judge concluded that there was no inconsistency between section 70 of the repealed Act and Regulations 170 to 174 of the Public Procurement Regulations but it was evident that an aggrieved bidder is essentially subjected to filing two appeals. 5.8. The trial Judge explained that an appeal involved lodging the appeal with the procuring entity as well as with the J14 of 32 Authority, and regulations to 174 show that the procuring entity helps the Authority by assisting with investigations and making recommendations. 5.9. That in reality the bidder launches its appeal with the Authority, which is the proper authority to deal with an appeal arising from a public procurement. Therefore, a purported withdrawal from a procuring entity does not vitiate the Authority’s duty to deal with an appeal properly lodged before it. 9.10. That in this particular case, the Respondent informed the Appellant that its wish was for the Respondent to go ahead and discharge its legal mandate of determining the appeal. a a That it is only after such determination and _ the Respondent not being satisfied that the matter can be remitted to arbitration. 5.12. The trial Judge further opined that if the Appellant refused to settle the appeal before it, the refusal would still constitute a dispute between the parties, and the matter could still be referred to arbitration for determination. DLS. With regard to the Appellant’s argument that even the questions the trial court was dealing with should have been remitted to arbitration, the trial Judge opined that the J15 of 32 power to determine if subsidiary law is consistent with the enabling law and the power to strike out subsidiary law that is found inconsistent with the enabling law lies in the province of public law and can only exercise by the courts. 5.14. The trial Judge stated that given the court’s position, no pronouncement would be made on the remaining reliefs “because they had been rendered otiose. 6. THE APPEAL 6.1. Aggrieved by Kafunda J’s judgment, the Appellant has appealed, fronting three grounds of appeal as follows; 1. The Honourable Court below erred in law when it exceeded its jurisdiction by determining a matter which was not brought before it for consideration and which was meant to be determined through arbitration. 2. The Honourable Court below erred in law when it failed to properly consider the application by the Appellant to stay proceedings and refer the matter to arbitration. 3. The Honourable Court below erred in law when it held that there were two (2) appeals lodged under the appeal process contained in the Public Procurement Regulations, 2011 (Statutory Instrument No, 63 of 2011) when in fact there was only one (1). J16 of 32 7. APPELLANT’S ARGUMENTS fide Under ground one, it was pointed out that when the Respondent declared a dispute under sections 100 (6) and of the Public Procurement Act, the question to be referred to arbitration was as follows; Whether or not there was still an appeal for determination by the Appellant in view of the fact that the Respondent had written to the Ministry withdrawing the appeal. 7.2. The parties even agreed on the identity of the sole arbitrator. Ts It was submitted that the Respondent felt that the Public Procurement Regulations were in conflict with the Public Procurement Act (Repealed Act) which was in force when the Respondent withdrew the appeal from the Ministry. It was for this reason that the Respondent filed the Originating Summons which, in the main, moved the trial Court to resolve the perceived conflict between the Regulations and the Act. 7.4, The Appellant submitted that during the course of the trial, it filed an application under section 10 of the Arbitration J17 of 32 Act to stay the proceedings and refer the parties to arbitration. The Appellant filed the application on its understanding that the dispute declared by the Respondent should have been properly dealt with at arbitration and not before the High Court. 7.9. In its submissions supporting its application to stay the proceedings, the Appellant argued that the regulations were not in conflict with the Act. 7.6. The gravamen of the Appeal herein is that the trial Judge went beyond what he was called upon to do, in that he not only determined that the regulations and the Act were not in conflict, but also determined the question that had been referred to arbitration, i.e. Whether or not there was still an appeal for determination by the Appellant in view of the fact that the Respondent had written to the Ministry withdrawing the appeal. tts It was submitted that the High Court was not asked to pronounce itself on the validity of the procurement appeal as that matter was supposed to be resolved at arbitration and therefore, the trial Judge volunteered a relief/pronouncement contrary to the guidance of the Supreme Court in the cases of John Mugala & Kenneth J18 of 32 Kabenga v The Attorney General ® and Murray & Roberts Construction Limited v Lusaka Premier Health Limited & Industrial Development Corporation of South Africa Limited 7:8: That guidance provided in the cited cases was summed up in the case Hakainde Hichilema & Others v The Government of the Republic of Zambia ') where the Supreme Court stated as follows: “We can safely conclude, from these authorities, that both Zambian and Indian Supreme Courts will not allow trial courts to grant reliefs beyond what has been prayed for. A trial court, therefore, has no jurisdiction to volunteer a relief which an Applicant or a Plaintiff has not prayed for.” 7.9. It was therefore submitted that the trial Judge erred by volunteering a pronouncement when he held that the Appellant was legally obliged to determine the Respondent’s appeal despite the Respondent having withdrawn it from the Ministry. 7.10, It was argued that even though the volunteered pronouncement was not binding on the arbitrator, it was prejudicial to the Appellant’s prospects at the arbitration J19 of 32 because as the Respondent could rely on it as a persuasive authority. sale The pronouncement that irked the Appellant is found at page J24 of the judgment (page 30 of the record of appeal) where it reads as follows; “A purported withdrawal of the appeal lodged with the procuring entity does not therefore vitiate the duty of the Respondent to deal with the appeal properly lodged before it in terms of section 70 of the repealed law and as is exactly provided for under section 100 of the succeeding Act. In any case, the Respondent was expressly informed by the Applicant that the Applicant still desired the Respondent to settle the appeal” taka It was, on that basis, argued that the trial Judge exceeded his jurisdiction and it was prayed that ground one be allowed. 7.13. In ground two, it was submitted that the court erred by not considering the Appellant’s application to stay proceedings and refer the parties to arbitration. 7.14. It was further submitted that once the application was made, the trial court should have ffirst heard and J20 of 32 pronounced itself on the application before proceeding with the main matter. The Appellant pointed out that it had raised numerous legal arguments in its application for stay which were never adjudicated on. tL; It was submitted that had the application for stay been heard, the court would have been urged to restrict itself to the issues for determination. Further that the Appellant would have been given the opportunity to appeal the ruling on the stay before the final judgment was issued. 7.16. It was further submitted that where parties before court are subject to an arbitration agreement and one of them moves the court under section 10 (1) of the Arbitration Act to refer the parties to arbitration, the court shall stay the proceedings and refer the parties to arbitration, unless a determination is made that the arbitration agreement is inoperative, incapable of being performed or null and void. t2f. That such a determination can only be made on a proper consideration of the application to stay proceedings. The case of Odys Oil Company Limited v The Attorney general & Constantinos James Papaoutsi "), refers. Tikes Ground three was abandoned. J21 of 32 8. RESPONDENT’S ARGUMENTS 8.1. In response to ground one, the Respondent submitted that the trial Judge did not exceed his jurisdiction by determining a matter which was not before him for determination and that the appeal was academic. 8.2. It was submitted that the learned trial Judge was under an obligation to consider the summons and affidavits together, and not in isolation, and that is what he did. That the issues for determination were set out in the Originating Summons. 8.3. It was pointed out that the trial Judge at page J16 (page 22 of the record of appeal), framed the matters for determination as per paragraph 5.1 above. It was opined that the trial Judge had to determine the validity of the appeal before hearing the Appellant and that “logic would tell that the judge then ought to have made it clear that the Authority had a valid appeal lodged with it in accordance with the applicable law to which it was obligated to hear.” 8.4. The rest of the Respondent’s arguments on this ground seek to show that the trial Judge was on firm ground when he proceeded to determine that the Appellant was obliged to hear the appeal. The rationale for this was that when the J22 of 32 trial Judge determined that the regulations were not in conflict with the law, he was obliged to explain the effect of his decision on the parties and at the end of it all, he held as follows: “... If the Respondent refuses to settle the Appeal before it, refusal will still constitute a dispute between the parties and the matter can still be referred to arbitration for determination.” 8.5. It was submitted that a Judge is duty bound to spell out the reasons for reaching a conclusion. In support of this, Counsel for the Respondent cited the cases of Hu He Rong v Charity Oparaocha "’’ and The Minister of Home Affairs & Attorney General v Lee Habsaonda & Others '° where it was stated: “Every judgement must reveal a review of the evidence, where applicable, a summary of the arguments and submissions, if made, findings of fact, the reasoning of the court on the facts and the application of the law and authorities if any, to the facts” 8.6. In the alternative, it was submitted that the Appellant had no dispute with the trial judge’s interpretation of the subject legislation save for the part where he allegedly exceeded his authority. If that be the case, the Respondent wondered J23 of 32 what the appeal sought to achieve because the dispute referred for arbitration would still proceed. S.7. The Respondent’s argument in response to ground 2 was that the trial Judge had, in his judgment addressed the issue raised in the Appellant’s application to stay proceedings and refer the parties to arbitration and held that having decided the issue of the apparent conflict between the regulations and the law, the question of staying proceedings had become otiose. 8.8. It was argued that staying the proceedings would have robbed the court of its jurisdiction to interpret the law, and if need be, expunge the said law. 8.9. That the trial Judge correctly held that expunging inconsistent law is an action only the court can take. 8.10. The Respondent proceeded, at great length, to set out the Appellant’s and Respondent’s arguments vis-d-vis the Appellant’s application to stay proceedings and stated that even though the application was never actually heard, the trial Judge did in his judgment address all the issues raised by the Appellant in the application. ost, It was argued that although the application to stay proceedings was not heard, the trial Judge acknowledged J24 of 32 the validity of the arbitration agreement because after determining the apparent conflict between the regulations and the Act the trial Judge said the matter could still proceed to arbitration. 8.12. The Respondent’s submissions on this point largely responded to the arguments advanced by the Appellant in the application which was not heard. The application not having been heard by the lower Court, the pleadings and arguments filed therein somewhat fall in the category of matters not argued in the lower Court and therefore incapable of being argued on appeal. 8.13. It is notable that the Appellant did not bother to recap the arguments it advanced in that application. 8.14. The Respondent opined that the Appellant was not prejudiced by the court’s failure to hear its application because the trial Court addressed all the issues in its final judgment and the Appellant was at liberty to appeal any of the decisions. 8.15. In conclusion, the Respondent submitted that trial Judge, in keeping with the guidance provided in the case of Zulu v Avondale Housing Project "!) had a duty to adjudicate upon every aspect of the suit so that every matter in controversy is determined in finality. J25 of 32 9.0. THE HEARING 9.1 When the matter came up for hearing, the Appellant was not in attendance. Counsel filed a notice of non-attendance, thus opting to rely on the record of appeal and heads of argument filed in support of the appeal. The Respondent relied on the documents filed before the Court and Counsel augmented briefly that it was their position that the Judge in the court below rightly determined the matters that were before him. He did not agree that the Judge determined the matters that were to be sent to arbitration. In response to the Court’s question as to what question was to be determined by the arbitrator since the parties had agreed on a sole arbitrator, Counsel for the Respondent insisted that the arbitrator’s role was to determine the appeal that the Respondent lodged with the Appellant. 10. DECISION 10.1. We have considered the record of appeal and _ the submissions filed by the parties. J26 of 32 10.2. It is important to clarify from the outset that the parties had already agreed to be referred to arbitration. The issue for which they had been referred to arbitration was clear and a sole arbitrator had been identified and agreed upon. In short, the parties had yielded to a parallel and complete mode of dispute resolution where the arbitrator would determine the dispute between them with finality. 10.3. The Respondent however filed proceedings in the High Court, seeking a determination as to whether there was a conflict in the key pieces of legislation that applied to the dispute for which the parties had been referred to arbitration. 10.4. The dispute for which the parties had been referred to arbitration was simply for the arbitrator to determine: whether there was still an appeal for the Appellant to determine in view of the fact that the Respondent had withdrawn its appeal from the Ministry. 10.5. The main issue the Respondent wished the court to determine is contained in the first relief sought in the Originating Summons it filed and reads as follows; 1. That the court does interpret section 70 of the Public Procurement Act No. of 2008 (repealed) as J27 of 32 applicable at the material time, and the application of the appeal procedure envisaged under Regulations 170 to 174 of the Public Procurement Regulations, and determine whether the Regulation provisions are consistent with the substantive section of the law taking into account section 20 (4) of the Interpretation and General Provisions Act, CAP 2 and if found inconsistent, declare them so. 10.6. The trial Judge rephrased the task presented to him and broke it down into three parts as follows; 1. To interpret the provisions of the Public Procurement Act No. 12 of 2008 and the Public Procurement Regulations, 2011; 2. To determine which body constitutes the Authority imbued with the mandate to deal with appeals relating to public procurement. 3. To ascertain whether there is a_ conflict between provisions of the Act and those in the regulations. J28 of 32 10.7. In our view, the issue that led to this appeal is the second point identified by the Judge because it is very similar to the question referred to the arbitrator for determination. 10.8. It is quite evident that the Appellant had a problem with the entire question that was referred to the court for interpretation because it held the view that, in terms of section 6 of the Arbitration Act No. 19 of 2000, the arbitrator had the requisite jurisdiction to determine the question which had been referred to the court. 10.9: The Appellant proceeded to file an application under section 10 of the Arbitration Act to stay proceedings and refer the parties to arbitration. The Judge did not set a date for hearing but proceeded to deliver his judgment without hearing the Appellant’s application. The Appellant has taken up this issue in ground two of the appeal. 10.10. With regard to ground two, as observed and argued by the Respondent, the learned trial Judge did in fact address his mind to the question of jurisdiction to determine the matter before him and this is what he said at page J24 of the judgment (p.24 of the record of appeal): “At this point, I wish to address the arguments by the Respondent, that even the questions the Court is J29 of 32 dealing with in this matter and subject of this judgement, should have been remitted to arbitration. I hold the view that the argument by the Respondent is not correct for the power to determine if subsidiary law is consistent with the enabling law and the power to strike out subsidiary law that is found inconsistent with the enabling law lies in the province of public law and can only be exercised by the Courts.” 10.11. It is notable that the trial Judge did not provide any authority to support his finding. 10.12. However, in any event, as correctly submitted by the Appellant, if the lower Court had heard the Appellant’s application to stay proceedings and refer the parties to arbitration, the parties would have argued this particular point and the court would have made its firm determination on the issue. 10.13. The trial Court erred by not hearing the Appellant’s application and the second ground of appeal succeeds to that extent. 10.14. With respect to ground one that the trial Judge determined matters that were not before him, as pointed out earlier, this problem arose principally because of the manner in which J30 of 32 the trial Judge framed and approached what he considered the second issue for determination. He framed it as follows; 2. To determine which body constitutes the Authority imbued with the mandate to deal with appeals relating to public procurement. 10.15. The second issue flows from determination of the first and third issues but touching it would result in determining the issue for which the parties had been referred to arbitration, and that is exactly what happened. 10.16. The trial Judge’s finding that the Regulations and the Act are not inconsistent has not been challenged and we agree with his reasoning on that point, which he determined at page J22 (page 28 of the record of appeal) as follows; “There is therefore no inconsistency between section 70 of the repealed Act and Regulations 170 to 174 of the Public Procurement Regulations. The Regulations are clearly designed to provide the procedure of how an aggrieved bidder can seek redress if a dispute arises between a procuring entity and the bidder.” 10.17. The learned trial Judge should have ended right there but the moment he addressed the second issue he had identified for determination, he essentially proceeded to find that the Respondent’s appeal before the Appellant was still pending and yet to be heard; when he said as follows; J31 of 32 “In my view, this practice that has been adopted by the Respondent is perfectly legal as by law it is only the Respondent who is the proper authority to deal with an appeal arising from a public procurement. A purported withdrawal of the appeal lodged with the procuring entity does not vitiate the duty of the Respondent to deal with the appeal properly lodged before it in terms of Section 70 of the repealed law and as is exactly provided for under section 100 of the succeeding Act. In any case, the Respondent was expressly informed by the Applicant that the Applicant still desired to Respondent to settle the appeal lodged with it.” 10.18. This holding by the trial Judge very clearly provided a possible position for the question that had been referred to arbitration. 10.19. The Judge erred because, having decided that there was no inconsistency, he should have referred the parties back to arbitration. For this reason, ground one should succeed. J32 of 32 11. CONCLUSION 11.1. In the premises, this appeal succeeds in its entirety and the net result of our judgment is that the proceedings before the High Court having been exhausted, the parties are referred back to arbitration where they had earlier agreed that the arbitrator will determine the following question; whether there was still an appeal for the Appellant to determine in view of the fact that the Respondent had withdrawn its appeal from the Ministry. 11.2. The costs of this appeal are granted to the Appellant. M. M. KONDOLO, SC COURT OF APPEAL JUDGE A ming Met. ht D. L. Y COURT SICHINGA, APPEAL JUDGE /SC N. A SHARPE-PHIRI COURT OF APPEAL JUDGE