ORIENT PROPERTIES DEVT CO. LTD v. FEDERAL MINISTRY OF HOUSING AND URBAN DEVT & ANOR (2020)

ORIENT PROPERTIES DEVT CO. LTD v. FEDERAL MINISTRY OF HOUSING AND URBAN DEVT & ANOR

(2020)LCN/15260(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, May 15, 2020

CA/A/677/2015

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

ORIENT PROPERTIES DEVELOPMENT COMPANY LIMITED APPELANT(S)

And

1. FEDERAL MINISTRY OF HOUSING AND URBAN DEVELOPMENT 2. BANK OF INDUSTRY LIMITED RESPONDENT(S)

RATIO

INTERPRETATION OF A STATUTE

THE PRINCIPLE OF FAIR HEARING

It has no doubt become a trend for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial Court. But this cannot be so. Fair hearing is definitely not a cut – and – dry principle which parties can in the abstract, apply to their comfort and commence. The principle of fair hearing must always be based on the facts of the case before the Court. The issue of fair hearing raised by the Appellant herein cannot fly in the light of the facts before the lower Court, and the failure of the Appellant to prove its case in line with the requirements of Sections 131 and 132 of the Evidence Act. PER IDRIS, J.C.A.

THE DOCTRINE OF LEGITIMATE EXPECTATION

THE CATEGORIES OF LEGITIMATE EXPECTATION

Broadly speaking, there are 2 broad categories of legitimate expectation: (a) procedural; and (b) substantive. Procedural legitimate expectation arises where the decision-maker makes an express promise to do particular things during the decision making process or where the decision maker has consistently done things in the past. The Court will find a procedural legitimate expectation where the practice is so well established that it will be unfair or inconsistent with good administration to allow the public authority to depart from that practice.
Substantive legitimate expectation arises where the decision maker has promised to keep an existing policy in force or to do a particular thing for a specific party or group, and that particular party or group would be substantially affected by a decision to go back on that promise. See generally COUNCIL OF CIVIL SERVICE UNIONS VS. MINISTER FOR THE CIVIL SERVICE (1985) AC 374 HL 401; R VS. INLAND REVENUE COMMISSIONERS EXP UNILEVER PLC (1996) STC 681 CA; R (BHATT MURPHY) VS. INDEPENDENT ASSESSOR (2008) EWCA CIV 755 PARAS 40 AND 41; R (GODFREY) VS.SOUTHWARK (2012) EWCA CIV 500 PARA 51; R (BIBI) VS. NEWHAM LONDON BOROUGH COUNCIL (2001) EWCA CIV 607 PARAS 29 AND 30. PER IDRIS, J.C.A.

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Federal High Court, Abuja presided over by His Lordship, Honourable Justice A. F. A. Ademola delivered on the 5th day of June, 2015 dismissing the claims of the Appellant herein in its entirety. The judgment of the lower Court is contained at pages 450 – 465 of the Record.

Dissatisfied with the said judgment, the Appellant herein on 3rd September, 2015 filed a Notice of Appeal containing seven (7) grounds of appeal against it.

However, with the leave of this Court, the Notice of Appeal filed on 3rd September, 2016 was amended and an Amended Notice of Appeal containing Nine (9) grounds filed on the 3rd February, 2016 was deemed properly filed and served on 24th day of April, 2017 by the order of this Court.

The Appellant (as Plaintiff in the lower Court) vide its Writ of Summons and statement of claim dated 14th October, 2009 but filed on 15th October, 2009 claiming several declaratory and injunctive reliefs against the Respondents (as Defendants in the Lower Court). The Writ of Summons, Statement of Claim, Witness’ Statement on Oath and other documents pleaded are as contained at pages 3 – 31 of the record of appeal.

The 1st Respondent filed its Statement of Defence dated the 5th day of December, 2011. The 2nd Respondent’s Statement of Defence was dated 31st day of May, 2011. See pages 219 – 221 and 89 – 194 of the record respectively. With the leave of Court, the 1st Respondent (Defendant) changed its witness statement on oath dated 4th May, 2012 with that of Mr. Mohammed Olanrele Adigun which was deemed filed and served on 8th October, 2014. See pages 331 – 333 and pages 426 – 427 of the Record. The 2nd Respondent’s (Defendant) Statement of Defence is contained at pages 89 – 92 of the record. The 2nd Respondent equally with the leave of Court changed its Witness Statement on Oath deposed to on 24th June, 2011. (See pages 205 – 208 of the record) to that of Mr. Uche B. Obi deposed to on 29th January, 2013. See pages 312 – 315 of the Record.

A summary of the facts that led to the dispute between the parties herein and this appeal is that on the 18th day of October, 2006, the 1st Respondent advertised in the Daily Trust Newspapers and others inviting members of the public to submit proposals for the Re-Development of the reserved premises and parcels of land in Lagos. The Appellant (as plaintiff in the lower Court) alleged that it submitted a bid for the Re-Development of the Transit Village, Victoria island, Lagos with other companies.

The Appellant alleged that after the completion of the exercise, the 1st Respondent declared it and UACN properties Plc the preferred bidders whereupon it was invited by the 1st Respondent vide a letter dated 30th April, 2007 to make presentation to the Federal Executive Council on the 9th day of May, 2007 which invitation it said to have honoured.

The Appellant alleged it was shocked to later learn that the 2nd Respondent which the Appellant alleged did not take part in the bidding process was awarded the contract. The Appellant alleged that it protested to the National Assembly and despite the directives of the House of Representatives as contained in its letters dated 19th May, 2008 and 14th October, 2008, the letters were not honoured by the Federal Executive Council.

The parties filed briefs which they adopted at the hearing of the appeal.

In the Appellant’s brief, the following issues were formulated for the determination of this appeal:-
1. Whether, given the facts and state of evidence at the trial Court, the Public Procurement Act, 2007, is not applicable to the Appellant’s claims. (Ground 1)
2. Whether, assuming (without conceding) that the Public Procurement Act, 2007, is inapplicable to the Appellant’s case, the lower Court was not bound to consider other statutes, case law and legal principles, if any, applicable to the Appellant’s case in the determination thereof and that the failure to consider the Constitution of the Federal Republic of Nigeria 1999 (As Amended) and other statutes does not amount to breach of Appellant’s right to fair hearing. (Grounds 2, 3 and 4)
3. Whether the 1st Respondent, a public body and an agency of the Federal Government, was not bound by the principle of Legitimate Expectation to award the contract only to the Appellant and/or UAC Properties, being entities who responded to, and participated in the bid exercise and emerged the preferred bidders as a result. (Ground 4)

Whether the lower Court was not functus officio as to the issue of jurisdiction to entertain the Appellant’s suit and on the question of whether or not the Appellant’s claims (as Plaintiff) founded on contract, in light of its ruling delivered on the 12th day of May, 2011, which ruling was not appealed by any of the Respondents. (Grounds 5, 6 and 7)
5. Whether, on the strength of the pleadings and evidence adduced before the lower Court, the Appellant is not entitled to the reliefs claimed in the suit. (Grounds 8 and 9)

Arguing the issues, learned counsel for the Appellant submitted that the lower Court was wrong to have held that the Public Procurement Act, 2007 did not apply to regulate the bid process and the award of the contract to the emerged bidder, and that assuming the correctness of the purported inapplicability of the Public Procurement Act, 2007 to the suit at trial, the lower Court erred to have omitted to apply other laws and legal principles applicable to the issues in the suit. Learned counsel argued that the doctrines of “ubi jus ibi remedium” and “legitimate expectation” clearly applied to the suit.

Learned counsel for the Appellant contended further that the lower Court was functus officio when it revisited the issue of jurisdiction and whether the suit bordered on contract, having previously decided that question in the same proceedings.

Learned counsel concluded the arguments by contending that the lower Court failed to properly consider the evidence led at the trial and thereby came to a perverse decision, occasioning a miscarriage of justice upon the Appellant.

This Court was urged to invoke Section 15 of the Court of Appeal Act to do justice in this matter. The Court was urged to allow this appeal and set aside the judgment of the Honourable Justice A. F. A. Ademola of the Federal High Court, Abuja, delivered on the 5th day of June, 2015, forming the subject matter of this appeal.

The Appellant urged the Court to enter judgment in their favour, and grant all the reliefs sought in the suit at the lower Court. The following authorities were relied on:-
LIST OF AUTHORITIES
STATUTES
1. CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999
2. COURT OF APPEAL ACT
3. EVIDENCE ACT, 2011
4. PUBLIC PROCUREMENT ACT, 2007
CASE LAW
1. ADEDAYO VS. BABALOLA (1995) LPELR – 85 (SC)
2. ALOR VS. NGENE (2007) 17 NWLR (PT. 1062) 163 AT 175
3. AMAECHI VS. INEC (2008) 5 NWLR (PT. 1080) 227 AT 437 – 438
4. AMAH VS. NWANKWO (2007) 12 NWLR (PT. 1049) 552 AT 572
5. APC VS. PDP & ORS (2015) LPELR – 24587 (SC)
6. ASHBY VS. WHITE (1703) 14 ST TR 695, 92 ER 126
7. AYORINDE & ORS VS. SOGUNRO & ORS (2012) LPELR – 7808 (SC)
8. BELLO VS. A – G OYO STATE (1986) 5 NWLR (PT. 45) 828
9. BUHARI VS. INEC (2008) 19 NWLR (PT. 1120) 246 AT 375 – 6
10. BWACHA VS. IKENYA & ORS (2011) LPELR – 8105 (SC)
11. CO-OPERATIVE AND COMMERCE BANK (NIG.) LTD VS. ATTORNEY-GENERAL OF ANAMBRA STATE & ORS (1992) 8 NWLR (PT. 261) 528 AT 556
12. COUNCIL OF CIVIL SERVICE UNIONS VS. MINISTER FOR THE CIVIL SERVICE (1985) AC 374 AT 401
13. ECOTRADE LTD VS. MACFOY & ORS (2015) LPELR – 25205 (CA)
14. EZE & ORS VS. GOVERNOR OF ABIA STATE & ORS (2014) LPELR – 23276 (SC)
15. FBN PLC VS. ASSOCIATED MOTORS CO. LTD (1998) 10 NWLR (PT. 571) 441
16. FEDERAL BOARD OF INLAND REVENUE VS. HALLIBURTON (WA) LTD (2014) LPELR – 24230 (CA)
17. IKPONG VS. UDOBONG (2007) 2 NWLR (PT. 1017) 184 AT 206
18. LABODE VS. OTUBU (2001) 7 NWLR (PT. 712) 256
19. LADEGA & ORS VS. DUROSIMI & ORS (1978) NSCC 175 AT 179
20. LAKER AIRWAYS LTD VS. DEPARTMENT OF TRADE (1977) Q. B. 643
21. MARGARET CHINYERE STITCH VS. ATTORNEY-GENERAL OF THE FEDERATION (1986) LPELR – 3119 (SC)
22. OMOYINMI VS. OGUNSIJI & ANOR (2007) LPELR – 3685 (CA)
23. ONISAODU & ANOR VS. ELEWUJU & ANOR (2006) LPELR – 2687 (SC)
24. ONWUJUBA VS. OBIENU (1991) 4 NWLR (PT. 183) 16
25. ONWUKA VS. EDIALA (1989) 1 NWLR (PT. 96) 182 AT 208 – 209
26. ONYEKWELI VS. UGWU (2008) 15 NWLR (PT. 111) 545 AT 557 – 8
27. OYEKANMI VS. NEPA (2000) 12 SC (PT. 1) 70 AT 84
28. SALEH VS. MONGUNO (2006) 15 NWLR (PT. 1001) 316
29. SHODIYA VS. STATE (2013) LPELR – 20717 (SC)
30. THE STATE VS. AJIE (2000) 11 NWLR (PT. 678) 434 AT 447
31. UMAR VS. STATE (2014) LPELR – 23190 (SC)
32. UNIVERSITY OF CALABAR TEACHING HOSPITAL & ANOR VS. BASSEY (2008) LPELR – 8553 (CA)
33. ODOFIN & ORS VS. MOGAJI & ORS (1978) NSCC 275 AT 277
BOOKS
ROCHELLE AGO (Ed.), WORDS AND PHRASES LEGALLY DEFINED EDITED BY, VOL. 2, 4TH EDITION, AT PAGE 39.

The 1st Respondent in its brief adopted the issues formulated by the Appellant. Arguing the issues, learned counsel for the 1st Respondent argued that the lower Court did not err to have held that the Public Procurement Act did not apply to regulate the bid process as the Lower Court would not have applied the Public Procurement Act retrospectively.

It was also argued that the 1st Respondent conducted a transparent bidding exercise in the exercise leading to the award of the redevelopment of Transit Village, Victoria Island, Lagos, to which the Appellant (Plaintiff at Lower Court) confirmed in his Statement of Claim, and that it was not the duty of the Lower Court to apply any other laws to the Suit aside the law under which the Respondent approached the Court. That there was no basis for any contract between the Appellant and the 1st Respondent.

Learned counsel for the 1st Respondent contended that the FEC being the final authority, found the 2nd Respondent to be more qualified and has the requisite experience to carry-out the assignment far better than the Appellant which lacked the requisite experience, awarded the concession to 2nd Respondent.

It was argued that the matter started de-novo and the evidence led at the lower Court was totally and properly considered by the Court wherein the Appellant fully participated and called his witness. That the lower Court did not in any way perverse its decision and the decision did not in any way occasion a miscarriage of justice as the Appellant was given a fair hearing.

It was also argued that no contract whatsoever existed between the 1st Respondent and the Appellant and the Appellant has no basis for taking legal action against the 1st Respondent, a caveat having been made in the advertisement placed by the 1st Respondent in respect of the exercise at tender stage.

The Court was urged to dismiss the appeal with enormous cost and affirm the judgment of the trial Court. These authorities were relied on:-
LIST OF AUTHORITIES
STATUTES:
1. PUBLIC PROCUREMENT ACT, 2007
2. CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (AS AMENDED)
3. EVIDENCE ACT CAP E14, LAWS OF FEDERATION OF NIGERIA
CASE LAW:
1. EZE VS. GOV. ABIA STATE (2010) 15 NWLR (PT. 1216) 324 (CA)
2. ADESANOYE VS. ADEWOLE (2000) FWLR (PT. 14) 2387 AT 2410, 2411
3. U. T. B. (NIG) VS. AJAGBULE (2006) 2 NWLR (PT. 965) PAGE 447 R 1
4. MANI VS. SHANONO (2006) 4 NWLR (PT. 969) PG. 132 RATIOS 7 – 8
5. JANG VS. INEC (2004) 12 NWLR (PT. 886) PAGE 46 AT PAGE 67 PARAGRAPHS E – H
6. HASSAN VS. ALIYU (2010) 17 NWLR (PT. 1223) AT 547
7. SOKWO VS. KPONGBO (2008) 7 NWLR (PT. 1086) PG 342 RATIO 1
8. ALAO VS. AKANO (2005) 11 NWLR (PT. 935) PG 160 RATIO 2
9. ADEBAYO VS. SHOGO (2005) 21 NSCQR 93 AT PG. 96 RATIO 7
10. MAJA VS. SAMOURIS (2002) 7 NWLR (PT. 765) PAGE 78 RATIO 7

The 2nd Respondent also adopted the issues formulated by the Appellant in its brief. Learned counsel argued that the lower Court was right in its decision to the effect that the Public Procurement Act, 2007, did not apply to this case.

It was further argued that neither the lower Court nor this Court can apply any extraneous laws and legal principles to the Appellant’s suit, more so when the doctrine of legitimate expectation is not applicable to the suit as erroneously argued by the Appellant. That both the Federal Executive Council and the 1st Respondent acted fairly, straightforward and consistent in this case in awarding the contract to the 2nd Respondent herein, and that the due process policy which the Appellant admitted was duly followed, it did not guarantee or gave a promise that whoever emerged as the highest bidder must automatically be awarded the contract.

Learned counsel for the 2nd Respondent contended that the issue of jurisdiction was rightly revisited by the lower Court, the suit having started de novo before Honourable Justice Ademola. That the issues decided by His Lordship Justice Adamu Bello on 12th May, 2011 before the same case started de novo before Hon. Justice A. F. A. Ademola on 19th May, 2014 cannot bind the latter judge as same had been discarded.

Learned counsel submitted that the Appellant’s claim is based on breach of contract, and that the Federal High Court by virtue of Section 251 of the 1999 Constitution of the Federal Republic of Nigeria lacks jurisdiction to entertain claims bordering on breach of contract.

It was contended that the lower Court properly evaluated and considered the evidence led before it and came to the right decision when it dismissed the Appellant’s suit in its entirety.

The Court was urged to dismiss this appeal in its entirety. These authorities were relied on:-
LIST OF AUTHORITIES
STATUTES
1. CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999
2. FEDERAL HIGH COURT (CIVIL PROCEDURE) RULES 2009
3. COURT OF APPEAL ACT
4. EVIDENCE ACT, 2011 (AS AMENDED)
5. PUBLIC PROCUREMENT ACT, 2007
CASE LAW
1. ALHAJI ABUDU W. AKIBU VS. ALHAJA MUNIRAT ODUNTAN (2000) 13 NWLR (PT. 685) 446
2. ROSSEK VS. ACB (1993) 8 NWLR (PT. 312) 382
3. ONUORAH VS. K. R. P. C. LTD (2005) 6 NWLR (PT. 921) 393
4. TRADE BANK PLC VS. BENILUX NIG. LTD (2003) 9 NWLR (PT. 825) 416
5. 7UP BOTTLING CO. LTD VS. ABIOLA & SONS BOTTLING CO. LTD (2001) 13 NWLR (PT. 730) 469
6. MINISTER OF WORKS VS. THOMAS NIG. LTD (2002) 2 NWLR (PT. 752) 740
7. COUNCIL OF CIVIL SERVICE UNIONS VS. MINISTER FOR CIVIL SERVICE (1985) AC 374
8. BABATUNDE VS. PAN ATLANTIC SHIPPING & TRANSPORT AGENCIES LTD (2007) 13 NWLR (PT. 1050) 113 AT P. 146
9. FBN PLC VS. TSOKWA (2004) 5 NWLR (PT. 866) 271, RATIO 14
10. FADIORA VS. GBADEBO (1978) NSCC VOL. 2 PG 121
11. AMUSA AMAO AMEYO VS. CHIEF SAMUEL OLAYODE OYEWOLE (2009) 8 NWLR (PT. 1142) 1
12. MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 34
13. AJAO VS. ALAO (1986) 5 NWLR (PT. 45) 802
14. O. U. INS. LTD VS. MARINE & GENERAL ASS. CO. LTD (2001) 9 NWLR (PT. 717) 92
15. FCE, OYO VS. AKINYEMI (2008) 15 NWLR (PT. 1109) 21
16. SHELL NIG. GAS LTD VS. D. O. & G. LTD (2011) 10 NWLR (PT. 1256) 457

I have read the processes filed by the parties, and I shall for the purpose of determining this appeal adopt the issues formulated by the Appellant herein. The issues again are as follows:-
1. Whether, given the facts and state of evidence at the trial Court, the Public Procurement Act, 2007, is not applicable to the Appellant’s claims. (Ground 1)
2. Whether, assuming (without conceding) that the Public Procurement Act, 2007, is inapplicable to the Appellant’s case, the lower Court was not bound to consider other statutes, case law and legal principles, if any, applicable to the Appellant’s case in the determination thereof and that the failure to consider the Constitution of the Federal Republic of Nigeria 1999 (As Amended) and other statutes does not amount to breach of Appellant’s right to fair hearing. (Grounds 2, 3 and 4)
3. Whether the 1st Respondent, a public body and an agency of the Federal Government, was not bound by the principle of Legitimate Expectation to award the contract only to the Appellant and/or UAC Properties, being entities who responded to, and participated in the bid exercise and emerged the preferred bidders as a result. (Ground 4)
4. Whether the lower Court was not functus officio as to the issue of jurisdiction to entertain the Appellant’s suit and on the question of whether or not the Appellant’s claims (as Plaintiff) founded on contract, in light of its ruling delivered on the 12th day of May, 2011, which ruling was not appealed by any of the Respondents. (Grounds 5, 6 and 7)
5. Whether, on the strength of the pleadings and evidence adduced before the lower Court, the Appellant is not entitled to the reliefs claimed in the suit. (Grounds 8 and 9)

RESOLUTION OF ISSUES ONE, TWO, THREE AND FOUR
In the judgment of the trial Court especially at pages 460 – 462 of the record of appeal, the learned trial judge held as follows:-
“This Court has examined the provisions of the Public Procurement Act 2007 signed into law by President Umar Musa Yar’Adua on the 4th day of June, 2007 and finds no express provision(s) giving retrospective effect to the said Act Neither will a Court of law read into a statute what is not there when construing same.
See AG KANO STATE V N. RABIU (1980) 8 – 11 SC 130 @ 147.
The facts of the Plaintiff’s case can be gleaned from the Originating Processes, exhibits filed ie Exhibits 1 – 14 and the evidence given by witnesses. This is a case of a bid for contract involving the Plaintiff & the 1st Defendant, Ministry of Lands and Urban Development, following a newspaper advertisement dated 18/10/2006 by the 1st Defendant soliciting for proposals from interested companies. The Plaintiff bidded and went through a public bid exercise conducted by 1st Defendant and emerged as one of the preferred bidders. Subsequently, it was called upon on 9th May, 2007 to make a presentation to the Federal Executive Counsel (FEC). The 2nd Defendant who never allegedly bidded at the onset was also called upon to make presentation and the contract awarded to it.
The above mentioned dates underlined by the Court predate 4th June, 2007 when the former president signed the Public Procurement Act into law.
In the circumstances this law can not be applied retrospectively as rightly submitted by the 1st and 2nd Defendant’s counsel respectively.
Further more, Exhibit OPDC2 tendered by the 1st Defendant particularly “Item 4.0 (iii)” of the Newspaper publication states as follows:-
4.0 IMPORTANT NOTICES
iii. “There are no commitments implied or otherwise on the part of the Federal Ministry of Housing and Urban development to issue a tender or enter into any contract with Respondents to this invitation. Prospective investors do not have legal rights, indemnity or any form of payment from the Federal Ministry of Housing and Urban Development, for failure to qualify them.” (Underlining mine)
From the foregoing paragraphs, the Plaintiff’s claims are not enforceable under the Public Procurement Act 2007 and the Court lacks jurisdiction to entertain them. Accordingly issue one is answered in the negative.”

At this point it is necessary I restate the facts of this case, and in this, I shall capture the review made by the 1st Respondent in its brief because it captures the facts as revealed by the record of appeal before me.

The Plaintiff’s/Appellant’s case is that:
i. In the advertisement placed by the Ministry of Housing and Urban Development (1st Defendant/Respondent), sometime in year 2006 in several National Dailies, Daily Trust Newspaper of October 18, 2006 inclusive, inviting members of the public to submit proposal for the “Re-Development of Reserved Premises and Parcels of Land in Lagos” wherein the Plaintiff claimed that it bided for the “Re-development of Transit Village, Adetokunbo Ademola Street, Victoria Island, Lagos, among several other properties advertised by the 1st Defendant, that it was adjudged the preferred bidder during the Public Bidding Exercise which was transparently conducted by the 1st Defendant/Respondent.
ii. It was invited to make a presentation of its proposal to the Federal Executive Council at the Council’s Chamber, Aso Villa, Abuja, through the 1st Defendant’s/Respondent’s letter dated 30th April, 2007, but was shocked when the contract was awarded to the 2nd Defendant (Bank of Industry), who he claimed only participated at the presentation made to the Federal Executive Council.
iii. It entitled to be jointly appointed with UACN Properties and be awarded the contract for the “Re-Development of the Transit Village, Victoria Island, Lagos, having participated alongside others in the bidding exercise conducted by the 1st Defendant and adjudged as the preferred bidder alongside UACN Properties in accordance with Public Procurement Act, 2007 and other Statutory Provisions governing the award of contract in Nigeria.
iv. The 1st Defendant/Respondent unilaterally and unlawfully and without due process, awarded the Re-Development of the Transit Village, Victoria Island, to the 2nd Defendant/Respondent, who it alleged neither bided nor participated in the Public bidding exercise conducted by the 1st Defendant/Respondent but participated at the presentation made to the Federal Executive Council; and that the 1st Defendant/Respondent acted in violation and in breach of the Public Procurement Act, 2007 and in breach of Nigeria 1999 Constitution.
v. It has committed itself financially to the tune of 4 Billion Naira, by approaching its Bank to mobilize funds and other consultants, both local and foreign, for all the preliminary preparations in readiness to commence work in earnest in order to complete the work in a record time.
vi. The Court should give an order setting aside, nullifying and putting in abeyance, the decision of the Federal Ministry of Housing and Urban Development (1st Defendant/Respondent), awarding the “Re-Development of the Transit Village, Victoria Island, to the 2nd Defendant; and an Order of perpetual injunction restraining the Defendants, their officers, agents or any person howsoever from giving effect or carrying out the decision of the 1st Defendant/Respondent purporting to award the “Re-Development of the Transit Village, Victoria Island, Lagos”, to the 2nd Defendant, pending the determination of the substantive suit.

The substratum of the 2nd Defendant/Respondent’s case is that:-
i. It participated in the bidding exercise for the Re-Development of the Transit Village, Victoria Island, Lagos and was awarded the contract alongside UACN Properties by the Federal Government after its presentation to the Federal Executive Council on the 9th May, 2007 as it fully participated in the presentation made at the Federal Executive Council on the 9th May, 2007
ii. It is also the case of the 2nd Defendant that the whole process leading to the award of the Redevelopment contract for the Transit Village, Victoria Island, Lagos to it by the Federal Government on 9th May, 2007, was conducted in compliance with the rules and regulations governing such bid exercise and was conducted transparently.

On its own part, the 1st Defendant/Respondent’s defence as regards the awarding of the concession for the “Re-Development of the Transit Village, Victoria Island, Lagos, is that:
i. It did not in anyway violate the Public Procurement Act, 2007 or in breach of Nigerian 1999 Constitution in the award of the concession.
ii. Due process was followed as the advertisement was duly published in the Nigerian News Papers, inviting interested and competent Organisations for the project. This is evidenced by Exhibits OPDC2 and D15, tendered at the trial Court by the Plaintiff/Appellant and the 1st Defendant/Respondent. See pages 23 and 300 of the record of appeal.
iii. Due process was followed in the award of the concession because the conduct of the bidding exercise was done transparently and this fact was confirmed by the Plaintiff’s Witness in paragraphs 7 and 8 of his Witness Statement on Oath wherein he stated:-
“That I know that the 1st defendant conducted a very competitive public bidding exercise for the said project in which many companies including the plaintiff bided for the “Re-Development of the Transit Village, Adetokunbo Ademola, Victoria Island, Lagos.” And “That I know that this bid exercise was conducted in compliance with laid down rules and regulations and under very transparent conditions.” See page 16 of record of appeal.
iv. The Plaintiff’s Witness in paragraph 11 of his Statement on Oath further buttressed the fact that the 1st Defendant followed due process in the bidding exercise when he stated that:-
“… the 1st Defendant through its letter dated 30th April, 2007 invited the plaintiff to present its proposal to the Federal Executive Council (FEC) on the 9th May, 2007 at the Council Chambers, Aso Villa, Abuja.” See page 16 of record of appeal.
v. The 1st Defendant/Respondent, when the Plaintiff raised a Petition to the National Assembly, out of concern, forwarded a letter (Exhibit D16) to the Federal Executive Council, perhaps it could reconsider its earlier decision, and revert same on the award of the concession granted to the 2nd Defendant. See pages 301 – 304 of record of appeal.
vi. The Federal Executive Council however, in its meeting of 9th May, 2009, upheld its earlier decision that the 2nd Defendant/Respondent should retain the award of concession to redevelop the Transit Village as it was found to be more qualified and has the requisite experience to carry-out the assignment far better than the Claimant (Orient Properties Company Ltd), which lacked the requisite experience.
vii. The Bid Exercise was only an Exercise to advise the Federal Executive Council and does not represent award or choice of the best bidder. This explains why the bidders were again invited for final presentation of their Proposals to the Federal Executive Council. See pages 16 and 17 of the record of appeal.
viii. The Exhibits (OPDC1 and D15) tendered by the Plaintiff and the 1st Defendant respectively, states that:-
“There is no commitment, implied or otherwise, on the part of the Federal Ministry of Housing and Urban Development to issue a tender or enter into any contract with respondents to this invitation. Prospective investors do not have legal rights, indemnity or any form of payment from the Federal Ministry of Housing and Urban Development for failure to qualify them.” See page 300 of record of appeal.
ix. In support of the 1st Defendant’s statement of defence, its Witness, Mr. Mohammed Olanrele Adigun, deposed to a Witness Statement on 2nd October, 2014 and testified under Oath on 8th October, 2014. He was cross-examined by counsel to Plaintiff and 2nd Defendant on same date. Through this Witness, the 1st Defendant tendered 2 Exhibits, viz:-
1. Copy of the 1st Defendant’s (Federal Ministry of Housing and Urban Development), Advertisement in the Daily Trust Newspaper of Wednesday, October 13, 2006, inviting Proposals for the Redevelopment of Reserved Premises and Parcels of Land in Lagos – Exhibit D15. See page 300
2. 1st Defendant’s Letter dated 18th November, 2008, address to the erstwhile President, (Late), Alhaji Umaru Musa Yar’ Adua, GCFR, President, Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria, captioned: “Petition Against the Concession Granted to the Bank of Industry for the Re-Development of the Transit Camp Village, Victoria Island, Lagos by Messrs Orient Properties Development Company Limited” – Exhibit D16. See pages 301 – 304 of the Record of Appeal.

There is no dispute between the parties that the Public Procurement Act 2007 was signed into law on the 4th of June, 2007, and there is no provision in the Act giving retrospective effect to its provisions. It is the law that the Courts lean against the retrospective interpretation of Statutes made by the legislature. See ADESANOYE VS. ADEWOLE (2000) 5 SCNJ 47.

A statute is only interpreted as being retrospective in cases or facts that come into existence after the statute was passed, where a retrospective effect is clearly intended. See AFOLABI VS. GOVERNOR OF OYO STATE (1985) 2 NWLR (PT. 9) 734.
As rightly pointed out by the learned trial judge, this is simply a case for a bid for contract involving the Plaintiff/Appellant and the 1st Defendant/Respondent following a newspaper advertisement dated 18th October, 2006. The advert was by the 1st Defendant/Respondent soliciting for proposals from interested companies. The Plaintiff/Appellant bidded and went through a public bid exercise conducted by the 1st Defendant/Respondent and emerged as one of the preferred bidders. Subsequently, it was called upon to make a presentation to the Federal Executive Council on the 9th of May, 2007 which it did. The 2nd Defendant/Respondent which never allegedly bidded at the onset was also called upon to make a presentation to the Federal Executive Council on the 9th of May, 2007, which it did. From the evidence before the trial Court, the presentation made by the 2nd Defendant/Respondent was approved by the Federal Executive Council on the 9th of May, 2007, and the contract was subsequently awarded to the 2nd Defendant/Respondent.
It is clear that the events that led to the award of the contract to the 2nd Defendant/Respondent took place before the Public Procurement Act 2007 was signed into law on 4th June, 2007. How then can the Act apply to cases or facts that came into existence before the statute was enacted into law?
It must be understood that a bid process is simply a process that leads to the formation of a contract. An expression of interest like in the circumstances of this case is simply an invitation to treat, or an invitation for offers. The act of the bidder in this case the Appellant amounts to an invitation to treat and did not give rise to any contractual relationship.
On this point, I want to conclude by stating that a retrospective interpretation cannot be given to a statute where that would affect vested rights or impose liability or disqualification for past events, as this Court has been invited to do by the Appellant herein. See generally ADESANOYE VS. ADEWOLE (2000) 5 SCNJ 47.
I agree with the learned trial judge that the Public Procurement Act, 2007 could not be applied to the facts of this case as presented by the Appellant.

This is not all. Item 4.0(iii) of Exhibit OPDC2 tendered by the 1st defendant states the following:-
“4.0 IMPORTANT NOTICES
iii. “There are no commitments implied or otherwise on the part of the Federal Ministry of Housing and Urban development to issue a tender or enter into any contract with Respondents to this invitation. Prospective investors do not have legal rights, indemnity or any form of payment from the Federal Ministry of Housing and Urban Development, for failure to qualify them.”

The above paragraphs of the newspaper publication pursuant to which the Appellant made the bid is clear and unambiguous. The Appellant bidded subject to the above conditions and it was bound by those conditions. How then can it turn around and institute this action in its present form? This suit was bound to fail from its inception, as the Public Procurement Act 2007 was inapplicable to it.

By item 4.0(iii) of Exhibit OPDC2, the 1st Respondent was not bound to enter into any contract with the Appellant, and the Appellant was well aware of this condition at the time it made its presentations. What other statute was the lower Court expected to consider in the face of these facts, that the Appellant considers applicable to its case?

The Appellant has cited Section 251(1)(r) of the Constitution as a law that imbued jurisdiction on the lower Court to adjudicate on this dispute. This argument cannot stand. Section 251(1)(r) of the 1999 Constitution deals with the subject matter jurisdiction of the trial Court and has nothing to do with the issues in dispute before the learned trial judge. The lower Court properly exercised jurisdiction pursuant to Section 251(1) of the 1999 Constitution and dismissed the action accordingly.

I have read the proceedings of the lower Court at pages 414 – 449 of the record of proceedings, and it is clear that the parties participated fully in the proceedings of the Court. Witnesses were called and examined accordingly, and exhibits were tendered and admitted in evidence. All the parties were heard at every material stage of the proceedings before judgment. I have no doubt in my mind that the proceedings were conducted fairly.
It has no doubt become a trend for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial Court. But this cannot be so. Fair hearing is definitely not a cut – and – dry principle which parties can in the abstract, apply to their comfort and commence. The principle of fair hearing must always be based on the facts of the case before the Court. The issue of fair hearing raised by the Appellant herein cannot fly in the light of the facts before the lower Court, and the failure of the Appellant to prove its case in line with the requirements of Sections 131 and 132 of the Evidence Act.
Having failed to prove its case, the Appellant cannot invoke the principle of ubi jus ibi remedium to the facts and circumstances of this case.

The doctrine of legitimate expectation on the other hand is one of the Court’s controls over the exercise of a decision maker’s powers. The general principle is that the Court will intervene to prevent a decision-maker from making a particular decision, or will quash a decision that is already made, where the decision-maker’s prior actions or inactions would make it unfair for that decision to stand. See generally R (BHATT MURPHY) VS. THE INDEPENDENT ASSESSOR (2008) EWA CIV 755.
Broadly speaking, there are 2 broad categories of legitimate expectation: (a) procedural; and (b) substantive. Procedural legitimate expectation arises where the decision-maker makes an express promise to do particular things during the decision making process or where the decision maker has consistently done things in the past. The Court will find a procedural legitimate expectation where the practice is so well established that it will be unfair or inconsistent with good administration to allow the public authority to depart from that practice.
Substantive legitimate expectation arises where the decision maker has promised to keep an existing policy in force or to do a particular thing for a specific party or group, and that particular party or group would be substantially affected by a decision to go back on that promise. See generally COUNCIL OF CIVIL SERVICE UNIONS VS. MINISTER FOR THE CIVIL SERVICE (1985) AC 374 HL 401; R VS. INLAND REVENUE COMMISSIONERS EXP UNILEVER PLC (1996) STC 681 CA; R (BHATT MURPHY) VS. INDEPENDENT ASSESSOR (2008) EWCA CIV 755 PARAS 40 AND 41; R (GODFREY) VS.SOUTHWARK (2012) EWCA CIV 500 PARA 51; R (BIBI) VS. NEWHAM LONDON BOROUGH COUNCIL (2001) EWCA CIV 607 PARAS 29 AND 30.
Is there a legitimate expectation as to how the bid is to be won? I do not think so. If there is, then there is no evidence before the trial Court to prove or show same. Is there a legitimate expectation as to how the power to award the contract is to be exercised? The answer is clearly in the negative.
From the facts available before the trial Court and the evidence led by the parties, the Court cannot find any procedural or substantive legitimate expectation to warrant its intervention.

Before rounding up on issues one, two, three and four, I wish to state that the trial Court did not contradict itself on the issue of jurisdiction. In that the learned trial judge did and which I agree with was to decline jurisdiction because the claims were unenforceable.

In the circumstances, I resolve the aforementioned issues in favour of the Respondents against the Appellant.

RESOLUTION OF ISSUE FIVE
At pages 463 to 464 of the record of appeal, the learned trial judge held as follows:
“The Plaintiff’s, Exhibit OPDC 3, is a Newspaper publication emanating from the 1st Defendant, dated 18/10/2006, Headed Federal Ministry of Housing and Urban Development HEADQUARTERS MABUSHI ABUJA and titled INVITATION FOR PROPOSALS FOR THE REDEVELOPMENT OF RESERVED PREMISES AND PARCELS OF LAND IN LAGOS, at best constitutes an invitation to treat.
The Plaintiff’s exhibits OPDC 4 & 5, consisting of its bid documents & proposal, assuming it is classified an offer to the 1st Defendant was not accepted and no such letter of acceptance was tendered by Plaintiff’s Counsel rather the 2nd Defendant tendered a letter of acceptance marked Exhibit BO1 17.
Moreso, the 1st Defendant owed the Plaintiff no obligation to award the contract to them especially as there exist a caveat in No. 4.0(iii) of Exhibit OPDC 3 – (the advertisement for bid), stating positively 1st Defendant was under no legal obligation to award the contract to Plaintiff.
After a careful perusal of the processes filed by Counsels, this Court is of the opinion elements of a valid contract in law do not exist in this suit.
Accordingly, this Court will not decree specific performance, as it cannot write a contract for parties or for a party i.e, the 1st Defendant, to accept the other party i.e the Plaintiff’s offer.
See SC/96/2005 SURVEYOR B. JAKPAN V IBOM PROPERTY INVESTMENT COMPANY LTD delivered on 14/6/2013.
Consequently, the Court cannot grant the reliefs sought by Plaintiff Company in this suit.
Again, issue 2 is resolved against the Plaintiff.
In conclusion, issues 1 & 2 are answered in the negative whilst the Plaintiff’s suit vide – writ of summons and statement of claim is dismissed in its entirety. The sum of N20,000 costs is awarded against the Plaintiff in favour of the 1st & 2nd Defendants jointly and severally.”

In the light of the facts before the trial Court, the Appellant was not entitled to judgment on the reliefs set out in the statement of claim. The lower Court properly evaluated the evidence led at the trial and came to the right conclusion in dismissing the claim in its entirety.

Issue five is resolved in favour of the Respondents against the Appellant.

This appeal clearly lacks merit and it is hereby dismissed. The judgment of the trial Court in Suit No. FHC/ABJ/CS/594/2009 delivered on 5th June, 2015 is hereby affirmed. No order as to cost.

PETER OLABISI IGE, J.C.A.: I agree.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, MOHAMMED BABA IDRIS, JCA. I agree with the reasoning, conclusions and orders therein.

Appearances:

C. O. Njemanze, SAN, with him, J. Onuoha, Esq., U. C. Njemanze, Esq. and C. I. Udokwu, Esq. For Appellant(s)

F. Adeniyi, Esq. for 1st Respondent
R. Olujide, Esq. for 2nd Respondent For Respondent(s)