ETUDO v. BPP (2022)

ETUDO v. BPP

(2022)LCN/16498(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, July 01, 2022

CA/ABJ/CV/954/2021

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Between

CHIEF EBUBECHUKWU LOTA ETUDO (DOING BUSINESS UNDER THE NAME AND STYLE OF ETUDO & COMPANY) APPELANT(S)

And

BUREAU OF PUBLIC PROCUREMENT (BPP) RESPONDENT(S)

RATIO:

THE INCOMPETENCE OF AN ACTION BECAUSE OF THE NON SERVICE OF PRE-ACTION NOTICE

Pre-action Notice is a special defence available to an appropriate Defendant/opposing party, by statute or contract, which it/he would be entitled to raise against the competency of an action where such had not been served on it/him. Where non-service of a pre-action Notice is found where the Statute provides for it, the suit is rendered incompetent, the jurisdiction of the Court for that purpose, where other conditions on jurisdiction are not wanting, will be on hold until the condition precedent is complied with. In other words, by the operation of Section 14 (1) of the Public Procurement Act, the jurisdiction of the Court should be put on hold until the relevant provision of the Statute is complied with. See the case of EZE V. OKECHKWU & ORS 2002 LPELR-1194 SC.
It must be noted here that incompetence of an action because of non-service of pre-action notice, thereby disallowing the Court for the time being to exercise jurisdiction, is an irregularity which is different from circumstances of total lack of jurisdiction in the Court. See the cases of NOKOPRISE INTERNATIONAL CO. LTD. V. DOBEST TRADING CORPORATION 1997 9 NWLR PT. 520 334, EZE V. OKECHUKWU supra, ODOFIN V. AGU 1992 3 NWLR PT. 229 350 and EKARA V. TAKIM 1995 5 NWLR PT. 394 242. It is correct to say that a party entitled to a pre-action notice may of its own volition waive it. See the case of ARIORI V. ELEMO 1983 1 SCNLR 1. ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the judgment of the Federal High Court of Nigeria, Abuja delivered by Hon. Justice B. F. M. Nyako on October 22nd, 2021 wherein the Twenty-one (21) consolidated Suits of the Appellant were dismissed for lack of jurisdiction, for the failure of the Appellant (the Plaintiff at the Court below) to file a pre-action notice on the Respondent (the Defendant at the Court below).

At the Court below, the Appellant vide an Originating Summons filed January 23rd, 2018 sought the following reliefs having consolidated Twenty-one (21) Suits as follows: FHC/ABJ/CS/41/18, CS/28/18, CS/29/18, CS/42/18, CS/73/18, CS/30/18, CS/31/18, CS/271/18, CS/299/18, CS/300/18, CS/102/18, CS/357/18, CS/74/18, CS/735/18, CS/239/18, CS/204/18, CS/739/18, CS/631/18, CS/632/18, CS/633/18, CS/788/18 and CS/789/18:
a. A DECLARATION that the defendant is wrong and in breach of Section 54 (4) (a) of the Public Procurement Act, 2007 by failure to order the suspension of the procurement exercises conducted by all the procurement entities until complaints referred to it by the plaintiff are settled.
b. A DECLARATION that the defendant is in breach of Section 54 (4)(b)(i) of the Public Procurement Act, 2007 by failure to prohibit all the procurement entities from taking further action upon the receipt of the plaintiff (sic) complaint on the various procurements.
c. A DECLARATION that the defendant is wrong and in breach of Section 54(4)(b)(ii) of the Public Procurement Act, 2007 by failing to nullify the disqualification of the plaintiff by the procuring entities and appoint the plaintiff as the winner of the bids.
d. A DECLARATION that the defendant is in breach of Section 54(4)(iii) of Public Procurement Act, 2007 by failing to declare the rules and principles that govern the subject matters of the procurement.
e. AN ORDER of N71,000,000.00 (Seventy-one Million Naira) only as special damages against the Defendant in favour of the plaintiff.
f. Cost of this action.

The brief facts as garnered from the printed Record before this Court are that the Appellant who participated in over twenty-one (21) bids for contracts awards by different procuring entities, ministries, departments and agencies of the Federal Government of Nigeria, is convinced he was eminently qualified but was shut out according to him without any legal reason. He had complained in writing to the accounting officer of the procuring office as required by Section 54 of the Public Procurement Act and the many complaints led to aforestated consolidated Suits.

Being dissatisfied with the decision of the Court below, the Appellant filed Notice and three (3) Grounds of Appeal on November 16th, 2021 as contained on pages 1030-1035. He seeks the following reliefs:
“i. An order allowing this appeal.
ii. An order setting aside the judgment of the lower Court delivered on the 22nd day of October, 2021.
iii. A rehearing and determination by this honourable Court, of the issues in the consolidated suit, in whole, in lieu of an order of remittal to the Chief Judge of the Federal High Court of Nigeria, for determination by another judge of the Court below.
iv. Grant by this honourable Court to the appellant of all the respective reliefs contained in each of the cases consolidated in the Court below, now before the Court of Appeal.

The Appellant on January 11th, 2021filed his brief of argument of same date which was settled by Ike Nwauzoigwe Ike Esq., whilst the Respondent has filed none. At the hearing of the appeal, the Respondent was not represented in spite of the fact that it was put on notice of the hearing and also served with the Appellant’s brief. Satisfied in that regard, the appeal was heard and judgment reserved therein.

The Appellant submitted the following issues for determination:
1. “Whether despite its “shall” stipulation, the ‘subject to’ expression of Section 14 (1) of the Public Procurement Act, 2007, (the Act) does not render its provisions subordinate, limited, inferior to and governed by the provisions of Section 54 of the Act (Grounds 1 and 2).
2. Whether where the Court below has jurisdiction, irrespective of the provisions of Section 14 (1) of the Public Procurement Act, 2007, (the Act) and after it determined that the provisions of Section 54 of the Act is mandatory on the respondent, whether it ought to have granted all the reliefs in the consolidated suits instead of dismissing them. (Ground 3).

I have carefully read the Issues formulated by the Appellant and for clarity and brevity in my respectful view, I shall reformulate the two issues simply to read as follows:
“Whether or not the Court was right in its decision with regard to its interpretation of Section 14 (1) of the Public Procurement Act and the dismissal of the suit of the Appellant.”

APPELLANT’S ARGUMENT
The learned Appellant’s Counsel submitted that despite the fact that the word “shall” is contained in Section 14 (1) of the Procurement Act, the phrase “subject to” therein renders the provision therein subservient, subordinate, limited, restricted by and inferior to the provisions of Section 54 particularly subsection 7 of Section 54. In support, he cited the cases of REUBEN N.A. EKWUNIFE V. WAYNE (WEST AFRICA) LIMITED 1989 5 NWLR PT. 122 422, NDIC V. OKEM ENTERPRISES LTD. & ANOR 2004 LPELR- 1999, OKE V. OKE 1974 1 ALL NLR PT. 1 443 and EBHOTA & ORS V. PLATEAU INVESTMENT & DEVELOPMENT LTD. 2005 LPELR 988 SC.

Therefore, the “shall” in Section 14 (1) is directory only and not mandatory. He contended that each of the 30 days period stipulated in Sections 14 (1) and 54 (7) of the Act, calls for different actions. That the Legislature was well aware of the 30 days pre-action notice and 30 days period to appeal to the Federal High Court and would not request the impossible. Further that from the two provisions, it is impossible to give the Respondent 30 days pre-action written notice as in Section 14 (1) and also to be within 30 day period to appeal to the Federal High Court by Section 54 (7) of the Act. And that it is for that reason that, the lawmakers made Section 14 (1) subject to the provisions of the Act and in particular to Section 54 (7). In that regard, he submitted that 30 days pre-action written notice of Section 14(1) of the Act is limited by the 30 days period within which a bidder may appeal to the Federal High Court under Section 54 (7) of the Act.

He submitted that where the appeal is brought after the 30 days period it becomes statute barred and cited in support the cases of OSUN STATE GOVERNMENT V. DALAMI NIGERIA LTD. 2007 LPELR-2817 SC P.11 and INEC V. OGBADIBO LOCAL GOVERNMENT & ORS 2015 LPELR-24839 SC P.35.

He contended that the Court was wrong to have held that it had no jurisdiction to determine the consolidated Suits as Section 54 (7) gives it jurisdiction. That the Court was merely requested by the Respondent not to exercise its jurisdiction because the 30 days pre-action written notice was not served on the Respondent and not that the Court did not have jurisdiction. And that the Court should not have dismissed the suits rather strike them out and cited in support the cases of NDIC V. CBN 2002 7 NWLR 706 272 FASAKIN FOODS LTD V. SHOSANYA 2006 10 NWLR 987 126 and TINUBU V. KHALIL & DIBBO TRANSPORT LTD. 2000 11 NWLR 677 71.

In conclusion, he urged that this Court should invoke e Section 15 of its Act, evaluate the twenty-two (22) consolidated suits which do not require viva voce evidence or calling of witnesses and allow the appeal.

RESOLUTION OF THE SOLE ISSUE
I have very carefully and calmly read through the brief of the Appellant and the other processes filed in respect of this appeal before this Court. Having so carefully done I proceed to consider the findings of the Court given the sole issue already adopted. The issue is hereunder reproduced for ease of reference thus:

SOLE ISSUE
“Whether or not the Court was right in its decision with regard to its interpretation of Section 14 (1) of the Public Procurement Act and the dismissal of the suit of the Appellant.”

Sections 14 (1) and 54 (7) of the Act provide as follows:
“14 (1) Subject to the provisions of this Act, no suit shall be commenced against the Bureau before the expiration of 30 days after written notice of an intention to commence the suit shall have been served upon the Bureau by the intending plaintiff or his agent; and the notice shall clearly and explicitly state:
a-d
“54 (7) Where the Bureau fails to render its decision within the stipulated time, or the bidder is not satisfied with the decision of the Bureau, the bidder may appeal to the Federal High Court within 30 days after the receipt of the decision of the Bureau or expiration of the time stipulated for the Bureau to deliver a decision.”

The Appellant Counsel argued that it would be near impossible for a bidder/person in the position of the Appellant to comply with the provision of Section 14 (1) and not run out of time for Section 54 (7) in terms of where there is an intention to appeal the decision of the Bureau. Further that, the word “shall” in Section 14(1)is subordinate to Section 54 (7) therefore, it is not expected to have a mandatory force but should be mere directory. In other words, it is not necessarily a condition precedent to appealing the decision of the Bureau.

In the instant appeal, the question whether or not the notice was served did not arise, the fact was that it was not served and the Appellant contended that the mandatory power of the word “shall” in Section 14 (1) was limited, subjugated and subordinated by virtue of Section 54 (7) of the same Act. The provision of Section 54 (7) as aforestated stipulates that a bidder like the Appellant herein may appeal the decision of the Bureau within thirty (30) days of its receipt or expiration of the time stipulated for the Bureau to deliver a decision. Thirty (30) days similar to the provision of Section 14 (1) is stipulated. The Appellant has copiously argued that compliance with the provision inthe face of Section 54 (7) is an impossibility which the legislature would not require, therefore, the word “shall” is merely directory as Section 14 (1) is subject to Section 54 (7). One respectfully disagrees with the argument of the Appellant’s Counsel. Section 14 (1) in my view and humbly retains its mandatory effect and potency in spite of the opening words therein “Subject to the provisions of this Act”. Further and in my view humbly, one fails to see how compliance with the provision of thirty (30) days in Section 54 (7) should hinder compliance with or service of pre-action notice within thirty (30) days as provided in Section 14 (1) of the Act.

The Appellant from the foregoing clearly did not serve the statutorily required pre-action notice within thirty (30) days on the Bureau as found and stated by the Court on page 1029 of the Record. And for that reason, the Court below was right to have declined to exercise jurisdiction which by virtue of the law in that regard, was temporarily on hold. It stated thus and correctly on page 1029 of the Record:
“Where a pre-action notice is not served on the Bureau, it robs the plaintiff the right to approach the Court and robs the Court of the jurisdiction to adjudicate on the matter as a condition precedent has not be (sic) complied with …”

In that regard, one agrees with the Court.

The question whether or not it should have dismissed the Appellant’s suit is another matter entirely which I shall hereafter consider. The order of dismissal in my respectful view ought to not have been made as the matter was not considered on its merit. The Court itself stated that much as one finds that the matter was not considered on its merit. The Appellant ought to not be shut out for that reason as the non-compliance can be rectified and he should be able to pursue whatever right he believes he has under the law once there is proper compliance with the law.

In consequence, the order of dismissal entered in the Appellant’s suit is improper and is hereby set aside and in its place, one enters the order striking out the Appellant’s suit. This appeal partly succeeds however in my humble view and not for this Court to evoke Section 15 of the Rules of this Court to hear the consolidated Suits of the Appellant.
STEPHEN JONAH ADAH, J.C.A.: I read in draft the judgment just delivered by my learned brother, Elfrieda Oluwayemisi Williams-Dawodu, JCA.

I agree in its entirety with the reasoning and conclusion that the appeal succeeds partly. I also hold that the appeal succeeds in part. I abide by the consequential orders given in the lead judgment.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: My Lords, I have been privileged to read in advance a draft copy of the leading judgment just delivered by my amiable Lord, Elfrieda Oluwayemisi Williams-Dawodu JCA. I am completely satisfied with the reasoning and conclusion reached therein, and it, haven covered the field, I have nothing more to add.

Appearances:

Mr. Ike Nwauzoigwe Ike, with him, Ms. Juliana Ahaneta Obanilu. For Appellant(s)

Unrepresented. For Respondent(s)