Wakilii

EAA Company Limited v Uganda National Bureau of Standards (Miscellaneous Application 1009 of 2023; Miscellaneous Application 965 of 2023)

High Court · [2023] UGHCCD 349 · 2023 Appeal Allowed, Stay Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Consolidated applications: appeal from Registrar's decision granting interim stay and application for stay of execution of PPDA Tribunal decision pending High Court appeal
Decision
Appeal allowed, stay application dismissed. Orders of PPDA Tribunal remain in force pending determination of substantive appeal.

Observed later treatment

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Holding

Held that Section 91M(4) of the PPDA Act does not bar stay of execution where the challenged Tribunal decision was an administrative decision rather than a procurement decision and no procurement process was suspended. However, the applications for stay were incompetent due to uncommissioned affidavits that were improperly rectified through ECCMIS. On the merits, the court declined to grant stay of execution as the applicant failed to demonstrate substantial loss where interim service providers could be procured using emergency procedures as ordered by the Tribunal.

Outcome

Appeal allowed, stay application dismissed. Orders of PPDA Tribunal remain in force pending determination of substantive appeal.

Facts

Uganda National Bureau of Standards (UNBS) tendered procurement for pre-export verification of conformity services for used motor vehicles. Following a dispute raised by service providers including EAA Company Limited, the PPDA Tribunal cancelled the procurement process and directed UNBS to procure interim service providers within thirty days using emergency procedures. The Tribunal also invalidated UNBS's twelve-month contract extension to Quality Inspection Services Inc. Japan. UNBS filed an appeal to the High Court and sought stay of execution of the Tribunal's orders. Meanwhile, EAA Company Limited appealed the Registrar's decision granting an interim stay. Both applications were consolidated for hearing. UNBS argued it would lose revenue without a service provider in place. EAA Company Limited contended that stay was barred by statute and the applications were procedurally defective as the supporting affidavits were not commissioned when initially filed.

Issues

  1. Whether applications for stay of execution are barred by Section 91M(4) of the PPDA Act.
  2. Whether the applications are incompetent for lack of commissioned affidavits and absence of a substantive appeal.
  3. Whether the decision of the PPDA Tribunal should be stayed pending disposal of the appeal to the High Court.
  4. What remedies are available to the parties.

Orders

  • Appeal by EAA Company Limited vide Miscellaneous Application No. 1009 of 2023 allowed.
  • Application for stay of execution vide Miscellaneous Application No. 965 of 2023 dismissed.
  • Orders of the Registrar made on 6 October 2023 set aside.
  • Orders of the PPDA Tribunal made on 22 September 2023 to remain in force pending hearing and determination of Civil Appeal No. 0154 of 2023.
  • The thirty days given by the Tribunal for emergency procurement to run from the date of this decision.
  • Costs of the consolidated applications to be in the cause.

Rules and key headnotes

PPDA Act — Stay of Execution — Scope of Section 91M(4) Restriction
Section 91M(4) of the PPDA Act restricts stay of execution only where a procurement decision was challenged before the PPDA Tribunal and a procurement process was suspended during the Tribunal proceedings. Where the Tribunal decision concerned an administrative decision rather than a procurement decision and no procurement process was suspended, Section 91M(4) does not bar the High Court from considering and granting stay of execution.
PPDA Act — Statutory Interpretation — Specific Provisions Prevail Over General Provisions
Where a specific provision of law addresses the management of a particular process, that provision overrides general provisions including on matters of jurisdiction. However, a specific provision must be interpreted in light of the circumstances it was designed to address and does not extend by implication to circumstances outside its ambit.
Affidavits — Uncommissioned Affidavits — Fatal Defect
An uncommissioned affidavit is not an affidavit under the law. Such a defect is not a procedural technicality but goes to the substance of the matter as affidavits constitute evidence. An application by Notice of Motion containing matters of fact unsupported by a valid affidavit is fatally defective and cannot stand in law.
ECCMIS — Amendment of Defective Applications — Proper Procedure
Upon realizing a defect in a filed application, counsel must withdraw the defective application or abandon it and file a new proper application. Filing another notice of motion with a commissioned affidavit under the same application number without withdrawing the defective one is ineffective. Filing a bare notice of motion and affidavit in reliance on documents annexed to the defective application constitutes misuse of the ECCMIS and renders the application incompetent.
Stay of Execution — Conditions for Grant — Substantial Loss
Not every decision ought to be stayed pending appeal unless there is evidence that substantial loss will occur. Where either course of action results in a service provider being in place and the applicant will continue earning revenue, there is no serious case for loss. The court may decline to grant stay where the applicant can utilize available mechanisms to avoid loss.
Stay of Execution — Effect of Staying Decision Finding Illegality
Where a tribunal has found that an administrative decision was made illegally, granting stay of execution has the indirect effect of reversing the tribunal's findings before the appeal has been heard. It is contrary to law, public policy, and court policy to allow such a decision to continue in operation before the court has had opportunity to satisfy itself as to whether the illegality exists, its nature, extent, and effect.

Legislation cited (6)

Cases cited (5)

  • Roko Construction Ltd v The Public Procurement and Disposal of Public Assets Authority and Another (Civil Appeal No. 59 of 2017)
  • Clear Channel Independent Uganda Ltd v The Public Procurement and Disposal of Public Assets Authority (Misc. App. No. 380 of 2008)
  • Singh v Runda Coffee Estates Limited [1966] EA
  • Aupal Kokas Wilfred v Aisu Popurus (HCMA No. 052 of 2022)
  • Kyambogo University v Prof. Isaiah Omolo Ndiege (CACA No. 341 of 2013)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

EAA Company Limited v Uganda National Bureau of Standards (Miscellaneous Application 1009 of 2023; Miscellaneous Application 965 of 2023) [2023] UGHCCD 349 (14 November 2023)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.