CENTRAL BANK OF NIGERIA v. SYSTEM APPLICATION PRODUCTS NIGERIA LIMITED
(2004)LCN/1609(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 30th day of June, 2004
CA/A/3/2002
RATIO
COURT JURISDICTION: WHETHER THE ISSUE OF JURISDICTION IS DETERMINED BY THE PLAINTIFF’S CLAIM
In Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 at page 549, paragraphs B-C. The Supreme Court, per Obaseki, JSC stated- “It is a fundamental principle that jurisdiction is determined by the plaintiffs claim (Izenkwe v. Nnadozie (1953) 14WACA 361 at 363 per Coussey, J. A.; Adeyemi v. Opeyori (1976) 9 – 10 SC 31 at 51). In other words, it is the claim before the Court that has to be looked at or examined to ascertain whether it comes within the jurisdiction conferred on the court (see Western Steel Works v. Iron & Steel Workers (1987) 1 NWLR (Pt. 49) 284. Judges have no duty and indeed no power to expand the jurisdiction conferred on them but they have a duty to expound the jurisdiction conferred on them (see The African Press of Nigeria & Ors. v. The Federal Republic of Nigeria (1985) 1All NLR 50 at 175; (1985) 2 NLWR (Pt. 6) 137 at 165. PER T. MUHAMMAD, J.C.A.
INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 251(1) OF THE 1999 CONSTITUTION
Section 251(1) of the Constitution of the Federal Republic of Nigeria, 1999, provides inter alia – “251(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters – (a) relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government in a part; (d) connected with or pertaining to banking, banks other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchanges, coinage, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal measures: provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank. PER T. MUHAMMAD, J.C.A.
COURT JURISDICTION: CONDITION THAT MUST BE PRESENT BEFORE A COURT CAN BE SAID TO HAVE JURISDICTION
In the case of Madukolu v. Nkemdilim (supra), it has been stated that for a court to have jurisdiction, the following conditions must be present: (i) the proper parties are before the court; (ii) the subject matter falls within the jurisdiction of the court (iii) the composition of the court as to members and qualifications, and (iv) the suit is commenced by due process of law and upon fulfillment of any conditions precedent to assumption of jurisdiction. PER T. MUHAMMAD, J.C.A.
JUSTICES:
IBRAHIM TANKO MUHAMMAD Justice of The Court of Appeal of Nigeria
ZAINAB ADAMU BULKACHUWA Justice of The Court of Appeal of Nigeria
ALBERT GBADEBO ODUYEMI Justice of The Court of Appeal of Nigeria
Between
CENTRAL BANK OF NIGERIA – Appellant(s)
AND
SYSTEM APPLICATION PRODUCTS NIGERIA LIMITED – Respondent(s)
T. MUHAMMAD, J.C.A. (Delivering the Leading Judgment):This appeal emanated from the decision of the Federal High Court Abuja (lower court), in which the court in its ruling of 25th February, 2002, dismissed the appellant’s application which challenged its jurisdiction to hear and determine the respondent’s suit. The background facts of this appeal are, briefly put, as follows: The respondent herein, as plaintiff, instituted action by originating summons before the lower court seeking for the following orders:
“(i) An order granting SAP leave to apply for an order of mandamus compelling the Central Bank of Nigeria – “CBN” – to complete the evaluation of the bidding process in respect IFB No. CBN/EAGLES/IFB/001-
“Invitation for bids for the supply and implementation of Enterprise Resource Planning System” -for which the plaintiff/applicant herein was a bidder by publicly declaring the results of the evaluation of the bidding process for:
(a) The technical evaluation of the bids submitted by the bidders;
(b) The evaluation of the financial offers of all the bidders.
Stating clearly the basis therefore in accordance with the merit point system stipulated in clause 257(e) of the invitation for bids to which all parties to the bid including CBN subscribed to prior to the submission of bids and are bound by.
(ii) An order granting the plaintiff leave to issue and serve the application for mandamus and other originating processes filed herein on the defendant at Abuja, Nigeria by substituted means through one insertion each in three (3) National Daily Newspapers in circulation in Nigeria.
(iii) An order that the grant of leave herein shall operate as a stay of any action or further action by the CBN in respect of:
(a) The annulment, closure of, and/or cancellation of the above bid process without completing it publicly by stating the results of the technical and financial evaluation of the bids in accordance with the terms of the invitation to bid
(b) The commencement of a fresh/new “bid process” by the issuance of fresh/new invitations for commercial bids in any guise howsoever from the parties to the uncompleted bids for either the whole or any component part of the above contract.
All pending the hearing and determination of the substantive application/motion on notice filed in this cause.
(iv) Specifically, an order of interim injunction restraining the CBN from giving any effect to the “annulment/closure/cancellation” of the above bid process by continuing with any “fresh/new invitations for bids” from any of the parties to the uncompleted bid for either the whole or any component part of the above contract pending the hearing and determination of the substantive application/motion on notice filed in this cause.”
The application for mandamus was supported by various affidavits, including exhibits. One of such exhibits is the invitation to bid which spelt out the regulations of the bid. Among the grounds upon which the case was instituted were that the appellant refused to declare the result of the bid and it wrote to the respondent to cancel same.
The trial court, upon hearing the application for leave for mandamus, granted same and enjoined the appellant from proceeding with award of the bid on an interim basis pending hearing of the motion on notice. Upon being served with the order, the appellant filed a notice of preliminary objection against the suit on the basis that the trial court lacked jurisdiction to entertain the suit. The trial court after hearing parties, ruled and dismissed the preliminary objection.
Dissatisfied, the appellant filed an appeal to this court. Parties in this court filed and exchanged briefs of argument. Learned SAN for the appellant formulated two issues, viz:
“(i) Whether the respondent’s suit at the Federal High Court, Abuja was for the enforcement of the contractual powers of the appellant i.e, Central Bank of Nigeria (CBN) under section 27(1)(i) of the Central Bank of Nigeria (CBN) Decree No. 24 of 1991.
(ii) Whether the respondent’s suit is not predicated on a breach of contract but a decision by the defendant to cancel a bid process and the manner of the decision and whether in either of the two circumstances the Federal High Court can be said to have the jurisdiction to hear and or determine the matter.”
A notice of preliminary objection was filed by the respondent on 5/5/2003. The preliminary objection prays for the following reliefs:-
“1. An order striking out or dismissing the appeal herein as incompetent.
Any further order or orders as this court may deem fit to make in the circumstances.”
The grounds upon which the preliminary objection was premised are as follows –
“(i) The grounds of appeal contained in the appellant’s notice of appeal in this matter, particularly grounds 1 and 3 thereof do not flow from the ruling of the lower court dated 25 February, 2002 appealed against.
(ii) The appellant’s issue 2 contained in the appellant’s brief of argument filed on the 13th January, 2003 incorporating ground 3 in the notice of appeal was never raised at the lower court by any of the parties neither was it decided upon by the lower court.
(iii) The appellant has not sought leave, neither has it been granted leave to argue new grounds on appeal.”
The main attack is on grounds of the notice of appeal. These grounds read as follows-
(i) Ground One
The learned trial Judge erred in law and on the facts when he ruled at page 7 of his ruling that;
‘section 27(i) & (ii) of the Central Bank of Nigeria Decree No.24 of 1991 empowers the bank to promote the establishment of bank clearing systems and provide facilities for the conduct of clearing business in premises belonging to the banks. I agree with the learned counsel for the plaintiff that the substantive case deals with powers of the Central Bank of Nigeria with respect to the bank clearing system and it was in the exercise of such power that the defendant is awarding contract for clearing system.
And thereby occasioned a miscarriage of duty (sic).
Particulars
i. The basis of the plaintiff, as respondent herein, suit at trial court is not enforcement of the exercise of the powers under section 27(i) & (ii) of the Central Bank of Nigeria Decree No. 27 of the 1991 but for the appellant to, among others, complete the evaluation of the bidding process in respect of IFB No.CBN/EAGLES/IFB/001 invitation for bids for the supply and implementation of Enterprises Resource Planning System.
ii. The respondent herein bidded for the contract.
iii. The provision of section 27(i) & (ii) of the Central Bank of Nigeria Decree No.27 of 1991 only regulates the statutory function of the appellant as a bank to banks and does not extend to the respondent.
iv. The respondent has admitted in their process that the situation arising has its basis in contractual relationship.”
“Ground Three
The learned trial Judge erred in law in assuming jurisdiction over the suit.
Particulars
i. The jurisdiction of the court i.e. Federal High Court is as conferred by section 251 (1) of the Constitution of the Federal Republic of Nigeria, 1999.
ii. The relief sought is predicated on a contractual relationship.
iii. The court has no jurisdiction, notwithstanding that the appellant is an agency of the government, to entertain the subject matter of the suit.”
The appellant filed a reply brief on 16/4/04 in which he answered the respondent’s points of preliminary objection. Arguments on the preliminary objection were subsumed in the respondent’s amended brief of argument. It is the submission of learned counsel for the respondent that the record is clear that Ground 1 does not arise from the decision of the trial court. It is incompetent and must be struck out. He referred to Uor v. Loko (1988) 2 NWLR (Pt. 77) 430 at 441; Udeze v. Ononuju (2001) 3 NWLR (Pt. 700) 216 at 226 F-H. Further, the ground did not attack any specific finding of fact by the trial Judge neither is it an omnibus ground.
Learned counsel submitted that the appellant cannot canvass the particulars stated to support the ground since the ground itself is incurably defective. Reference was made by counsel to Order 3 rule 2(4) of this Court’s Rules. Learned counsel urged this court to strike out ground one of the grounds of appeal.
In his reply brief, learned SAN for the appellant replied that the notice of preliminary objection is incompetent and ought to be struck out together with the arguments thereof. Learned counsel referred this court to page 176 of the record, paragraph 2 of page of the trial court’s ruling. He argued that counsel (party/appellant) can appeal against the entirety of a decision or any part thereof. The appellant, he argued under part 2 of the notice of appeal, indicated that the appellant was appealing against the whole decision and went ahead to indicate the specific parts the appellant was appealing against.
By this, it was argued, the appellant had fully satisfied the conditions laid down by the law in respect thereof. Ground one is competent. So also the issue distilled therefrom. This court is urged to so hold.
In determining the preliminary objection raised, which essentially deals with one of the grounds of appeal, I will want to reiterate the point made by learned counsel for the respondent that a ground of appeal is the sum total of the reason or reasons why the decision appealed against is considered wrong by the aggrieved parties. It is a ground against a specific finding of the trial court as was held in Abdullahi v. Oba (1998) 6 NWLR (Pt. 554) 420 at page 427 G-H. Ground of appeal No. One as quoted earlier in this judgment postulates an error, in law committed by the learned trial Judge. After quoting some specific sections of the Central Bank Decree No. 24 of 1991, the learned trial Judge agreed with the learned counsel for the plaintiff that the substantive case deals with powers of the Central Bank of Nigeria with respect to the bank clearing system and it was in the exercise of such power that the defendant is awarding contract for clearing system. I think this is a specific finding, which has a place in the proceedings of the lower court page 176 of the record bears this fact out and it reads –
“Section 27(1) of Central Bank of Nigeria Decree of No. 24 of 1991 empowers the bank to promote the establishment of bank clearing systems and provide facilities for the conduct of clearing business in premises belonging to the bank. I agree with the learned counsel for the plaintiff that the substantive case deals with powers of the Central Bank of Nigeria with respect to the bank clearing system and it was the exercise of such power that the defendant is awarding contract for clearing system.”
Where a ground of appeal states clearly what portion of a court’s judgment or ruling it challenges and that portion is traceable from the judgment or ruling of that court, I think it qualifies as a proper and valid ground of appeal contemplated by Order 3 r. 2(1) – (4) of the Court of Appeal Rules, 2002. Ground one of the appellants grounds of appeal as contained in the notice of appeal is, in my view, properly couched. It is a valid ground in law. I have no reason to tamper with that ground. Equally, issue No.1 distilled from it is valid. Arguments proffered in respect thereof are also valid in my view. It appears the objection on ground 3 by the respondent had been abandoned. Accordingly, I find no substance in the preliminary objection and same is hereby overruled.
I shall now consider the appeal in line with the issues formulated by the learned SAN for the appellant.
Let me observe from the outset that the issue of jurisdiction appears to be common to both parties. The appellant raised it in its ssue No. (ii). The respondent raised it as its sole issue for the determination of the appeal.
I shall consider this issue first as it will determine the progress of the appeal in one way or the other. See A.-G., Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552; State v. Onagoruwa (1992) 2 NWLR (Pt. 221) 33; N.D.I.C. v. C.R.N. (2002) 7 NWLR (Pt.766) 272, (2002) 3 SC; Abdulsalam v. Salawu (2002) 13NWLR (Pt.785) 505, (2002) 6 SC (Pt.11) 196.
Learned SAN for the appellant, in his argument in respect of jurisdiction, submitted that the trial court had no jurisdiction to try the suit if it relates to mere statutory interpretation. He cited and relied on section 251(1) of the Constitution of the Federal Republic of Nigeria 1999. Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517. Akereja v. Oloba (1986) 2 NWLR (Pt. 22) 257, among other authorities. The subject matter of the suit, it was argued, for the appellant, is contract not control, administration or management of the appellant, nor was there any claim for declaration or injunction against the appellant. It will be outreaching the provision of section 230 (c), (q) and (s) of the Decree to read exclusiveness of jurisdiction of the Federal High Court. The case of Minister for Works and Housing v. Tomas (Nig.) Ltd. & Ors. (2002) 2 NWLR (Pt. 752) 740-788 F-B was cited in support.
Learned counsel for the respondent submitted that the jurisdiction of the Federal High court over the suit of the respondent at the lower court is complete and unimpeachable. He cited the case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341, (1962) NSCC 374 at page 379. It is the claim over the subject matter that resolves the issue of jurisdiction. Adeyemi v. Opeyori (1976) 9 – 10 SC 31, (1976) NSCC 455 was cited. He argued that the appellant, CBN is an agency of the Federal Government. He cited and relied on the case of NEPA v. Edegbenro (2002) 18 NWLR (Pt.798) 79, (2003) 9 WRN 1.
Learned counsel submitted that the bid, the subject matter of the suit, which was for the supply and implementation of an Enterprise Resource Planning System concerns the administration and management of the appellant within the meaning of section 251(1) (p) of the 1999 Constitution. The action seeks orders of injunction against the appellant at the lower court in consequence of its executive and/or administrative actions. This satisfies the major consideration in subsection.- 251(1) r. Learned counsel urged this court to hold that the Federal High Court has jurisdiction.
I think it has been made clear by now that when it comes to the question of determining whether a particular court has jurisdiction on the subject matter or persons brought before it, the Constitution, other statutory provisions and decided authorities have laid down the general principles to that effect. In Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 at page 549, paragraphs B-C. The Supreme Court, per Obaseki, JSC stated-
“It is a fundamental principle that jurisdiction is determined by the plaintiffs claim (Izenkwe v. Nnadozie (1953) 14WACA 361 at 363 per Coussey, J. A.; Adeyemi v. Opeyori (1976) 9 – 10 SC 31 at 51). In other words, it is the claim before the Court that has to be looked at or examined to ascertain whether it comes within the jurisdiction conferred on the court (see Western Steel Works v. Iron & Steel Workers (1987) 1 NWLR (Pt. 49) 284. Judges have no duty and indeed no power to expand the jurisdiction conferred on them but they have a duty to expound the jurisdiction conferred on them (see The African Press of Nigeria & Ors. v. The Federal Republic of Nigeria (1985) 1All NLR 50 at 175; (1985) 2 NLWR (Pt. 6) 137 at 165.”
The persons and claim placed before the lower court were:
SYSTEM APPLICATION PRODUCTS NIG. LTD.
“SAP … PLAINTIFF/APPLICANT.
AND
CENTRAL BANK OF NIGERIA CBN DEFENDANT/RESPONDENT.
It was argued by the respondent that CBN is an agency of the Federal Government, quoting section 2 of the CBN Act, 1991 which states that the Bank shall act as banker and financial adviser to the Federal Government of Nigeria.
Section 251(1) of the Constitution of the Federal Republic of Nigeria, 1999, provides inter alia –
“251(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters –
(a) relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government in a part;
(d) connected with or pertaining to banking, banks other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchanges, coinage, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal measures: provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank.”
In the case of Madukolu v. Nkemdilim (supra), it has been stated that for a court to have jurisdiction, the following conditions must be present:
(i) the proper parties are before the court;
(ii) the subject matter falls within the jurisdiction of the court
(iii) the composition of the court as to members and qualifications, and
(iv) the suit is commenced by due process of law and upon fulfillment of any conditions precedent to assumption of jurisdiction.
I already have set out earlier on, the claims of the plaintiff/applicant at the court below, which in summary were grounded on an order of mandamus to compel the defendant to declare the result of the bidding in which the plaintiff took part. Abid means a buyer’s offer to pay a specified price for something that mayor may not be for sale. See: Black’s Law Dictionary, seventh edition, page 153. Wherever, in the general law of contract, there is an offer, there may be a corresponding acceptance, a counter offer or a total rejection of the offer. These go into the operational rules of contract law. Although the case may not be purely contractual but it is certainly that the processes of making an offer/acceptance in this case would involve administrative consideration of the CBN before making same. This, in my view, has made it to fall undersection 251(r) of the Constitution, which provides –
“(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administration action or decision by the Federal Government or any of its agencies“
Just of recent, I made the following observation in the Unreported case of Federal Housing Authority v. John Shoy International Ltd., CA/A/83/2003, delivered on the 1st day of April, 2004:
“The law has now been made clearer by further pronouncements of this court by taking cognizance of the proviso to section 230(1) of the 1979 Constitution (now amended by section 251(1) of the 1999 Constitution, one would come to the irresistible conclusion that even the proviso does not portray that the State High Court or High Court of the Federal Capital Territory shall have jurisdiction on matters in which the Federal Government or any of its agencies is a party. See: Ali v. CBN (1997) 4 N’WLR (Pt. 498) 192; Adebileje v. N.E.P.A. (1998) 12 NWLR (Pt. 577) 219; Ayeni v. University of florin (2000) 2 NWLR (Pt.644) 290; Oyegoke v. Iriguna (2002) 5 NWLR (Pt. 760) 417. In a recent decision of the Supreme Court, Ogundare, JSC, in his leading judgment in NEPA v. Edegbero & 15 Ors. (2002) 12 SCNJ 173, (2002) 18 NWLR (Pt. 798) 79 particular at pp. 95 E-F has this to say:
‘I have myself read the proviso to paragraphs (q), (r) and (s) of sub-section(1) of S.230, 1979 Constitution (now S. 251 (p), (q) and (r) of 1999 Constitution) all over again; I can find no such exception in it that would lead me to find to the contrary. A careful reading of paragraphs (q), (r) and (s) reveal that the intention of the Lawmakers was to take away from the jurisdiction of the State High Court and confer same exclusively on the Federal High Court actions in which the Federal Government or any of its agencies is a party. From what I have said earlier in this judgment, the aim of paragraphs (q), (r) & (s) of S. 230(1) was to vest exclusive jurisdiction in the Federal High Court in matters in which Federal Government or any of its agencies was a party. A State High Court would no longer have jurisdiction in such matters notwithstanding the nature of the claim in the action'”. (italics mine).
Same case is reported (2002) 12 SCNJ, 173.”
In view of the above therefore, it is clear now that the nature of the claim in an action can no longer be a criteria for the Federal High Court to refuse to assume jurisdiction on matters placed before it so long as any of the parties is either the Federal Government or any of its agencies. Therefore, I find that the Federal High Court had jurisdiction on the matter brought before it by the plaintiff/applicant/respondent. Issue No.2 is hereby resolved in favour of the respondent.
In the first issue distilled by the appellant, learned SAN for the appellant submitted that the suit at the Federal High Court, Abuja was not for the enforcement of the contractual powers of the CBN under section 27 (1)(ii) of the CBN Decree No. 24 of 1991. Nothing supported the ruling of the learned trial Judge from the reliefs sought, the affidavit in support and grounds in support of the application that the basis of the suit was for the enforcement of the contractual powers of the CBN under the said section.
Learned counsel for the respondent in his submission on appellant’s issue No. (i) argued that assuming there was that finding by the learned trial judge; such a finding would still have been defensible within the context of the said ruling and that in any event, since the case would still have been competent and maintainable before the lower court, this ground of appeal is of no moment. Learned counsel submitted that the term “enforcement of contractual powers”, could easily be understood as meaning that the suit related to the exercise of a power under the section and the appellant could have awarded a contract breach of which could be redressable. The real complaint in the suit, it was further argued, was that the CBN willfully defaulted in the discharge of their duties by inexplicably deviating from the set process.
From the facts available in the printed record of appeal in respect of this appeal, the main relief sought from the court below is for an order of mandamus compelling the CBN to complete the evaluation of some bidding process as mentioned in relief No. (1) of the application before that court. The preliminary objection raised before the lower court was primarily on that and on some other points.
The relevant findings of the learned trial Judge in respect of the grant of an order of mandamus, reads as follows –
“Sections 1 (3),6,7 (1) & (2) Central Bank of Nigeria Decree No.24 of 1991 empower the Central Bank of Nigeria to enter into contract, acquire movable and immoveable property. The power given to the management of the Central Bank of Nigeria includes the power to do any act that is incidental towards the discharge of its duty.
Section 27 (1)(X) of the Central Bank of Nigeria Decree No. 24 of 1991 readily comes into play … Mandamus is not restricted to the exercise of statutory duty, but it may be need(ed) to compel a public duty. See: Shitta Bay v. Federal Civil Service Commission (Supra).
The Central Bank of Nigeria is beyond doubt a public institution with public duties. What the plaintiff is challenging is not breach of contract, but the decision of the defendant to cancel the bidding process and the manner in which the decision was taken. I agree with the plaintiff’s counsel that where it is alleged that there is a breach of contract order of mandamus may be made. See Ulegede v. Commissioner of Agriculture Benue State (1996) 8 NWLR (Pt. 467) 437.”
Let me say that the order of mandamus requested by the respondent is among the prerogative orders which are discretionary common law remedies which a high court may grant in the exercise of its supervisory jurisdiction over the proceedings and decisions of inferior courts and tribunal and control of governmental duties and powers. It is a public law remedy and is directed against officers in their capacity as such or against public bodies such as the CBN. It aims at compelling the performance of a public duty in which the person applying far it has sufficient legal interest. In the case of Shitta-Bay v. Federal Public Service Commission (1981) 1 SC 40, cited by the learned trial Judge, Idigbe, JSC, said –
“The order of mandamus, of course, only issues to a person or corporation, requiring him or them to do same particular thing therein specified, which appertains to his or their office, and is in the nature of a public duty.”
The case of the Queen v. Western Urhobo Rating Authority and Others Ex-Parte Odje and Others (1961) All NLR 796, a public duty to do the act in question, has been held to be one that must be imposed upon the person against wham the order is sought. In Fawehinmi v. Akilu (1987) 4 NWLR (Pt. 67) 797, it was held that the proposed recipient of an order of mandamus must be an individual body, or tribunal, or inferior court with a public duty to the applicant. And, finally, such public duty need not to be imposed by statute only. It may be a duty under the common law, and even duty under customary law is enforceable by an order of mandamus. See: Layanju v. Araoye (1961) 1 All NLR 83, (1959) 4 FSC 154 at 157; The Queen (Ex-Parte Ekpenga v. Ozogula II (1962) 1 All NLR 796. It must be noted however that the person enjoined to perform the act must have failed upon demand to do it. See R v. I.R.C. (1962) 1 SCNLR 423; Re-Nathan (1884) 12 QBD 461.There are also circumstances where order of mandamus cannot be granted. These circumstances are –
(i) Where there is a discretion to act. See: Miss Akintemi & Ors. v. Prof Onwumechili & Ors. (1985) 1 NWLR (Pt.1) 68, (1985) 1 SC 132 at page 173.
(ii) Where the order asks far something which is impossible of performance.
(iii) Where the doing of the act ordered would involve a contravention of the law. See: The Republic v. Registrar of Trade Marks (1967) NMLR 324.
(iv) Where there is an alternative specific remedy at law which is not less convenient beneficial and effective. See: R v. Registrar of Joint Stock Companies (1888) 21 QBD 131; See: Prof Onwumechill’s case (supra).
(v) Where there has been undue delay by the applicant before bringing his application. See: Broughton v. Commissioner of Stamp Duties (1889) AC 25 Volume II, page 84 of Halbury’s Laws of England provides as follows-
“Mandamus is an order of a most extensive remedial nature and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation, or inferior tribunal requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of public duty. Where a statute, which imposes a duty, leaves discretion as to the mode of performing duty in the hands of the party, on whom the obligation is laid, mandamus cannot command the duty in question to be carried out in a specific way.”
From the facts made available in the printed record of this appeal, it appears that the main grudges of the respondents as applicants before the lower court were that the appellant as defendant refused to complete the valuation of the bidding process in respect of IFB No. CBN/EAGLES/IFB/001 for the supply and implementation of Enterprise Resource Planning System, for which the respondent was a bidder. The respondent then, as applicant filed a motion ex-parte for a mandamus to issue, compelling the appellant to complete valuation of the said bidding process. Some of the facts relied upon are as contained in the following paragraphs of the affidavit in support of the ex-pm1e motion:
“2(iii) In July, 2000 CBN as part of an ongoing restructuring exercise aimed at improving efficiency amongst other objectives, by letter dated 28th July, 2000 Ref: CBN/EAGLES/PF/01 faxed directly to SAP A.G. and copied to SAP Nigeria invited SAP along with a few pre-qualified companies to bid for the contract to supply CBN with an Enterprise Resource Planning System. Copies of both the invitation to bid and the bid form/documents obtained from CBN are delivered herewith as exhibit “SAP 1”.
(viii) Since SAP’s product – R/3 only provided an ERP Solution, it was required to nominate suitable products to complement R/3 to provide a “comprehensive” solution and thereafter bid in partnership (as a consortium) with the makers of its nominated complementary products as “lead bidder” with whom CBN would contract and who would warrant the fitness and suitability of the products offered. SAP therefore opted to bid in consortium with respectively – Logical U.K. Limited – “Logic a” for the supply of the RTGS Solution and Finance Applications System Limited FASYL Nigerian distributors of the FLEXCUBE Banking software manufactured by the Indian Company “i-flex” Solutions Limited – “i-flex” for the Banking Solution. The resulting consortium was the SAP/LOGICA/FASYL CONSORTIUM.
3. SAP duly complied with all the antecedent conditions including expensive and time-consuming “site visits” that necessitated visits with CBN’s “technical project team” to several countries of the World, having submitted for evaluation, as required, a sealed bid comprising of two (2) ‘envelopes’.”
4(iii) By the bid documents CBN was to immediately proceed to verify the details of the Financial bids by a process of “Clarification” to confirm and arithmetical, accuracy only with the proviso (clause 22. I in the bid documents) that in this process “no change in the price or substance of a bid” was to “be sought, offered or permitted”.
(v) However after the “financial bids” had been opened and it was apparent that SAP would win the bid, CBN began to take actions directly opposed to its commitment under the bid requirements, specifically, as purported “clarification” of SAP’s financial bid it began to bombard SAP with all sorts of fresh requests for quotes for respectively –
1. an increased number of users; and
2. a breakdown of its quote into “unit” prices, all ostensibly to permit the manipulation of SAP’s bid. The “excuse proffered for this was that Oracle had “mistakenly” overbid and CBN was trying to “correct” things whereas by the express terms of the bid such an “overbid” should have been declared unresponsive and invalid.
(vi) Nonetheless after all the “clarifications” CBN was still required to publicly announce the result of the evaluation of the financial bids of both SAP and Oracle and finally to announce the conclusion of the bid by declaring the to announce the conclusion of the bid by declaring the bid adjudged to be the lowest and most advantageous bid after evaluation of both the result of technical and financial evaluations together which, until date, it has failed to do despite several formal and informal requests by SAP that this be done.
(vii) To bid documents committed CBN to awarding the contract to the bidder who had the most advantageous bid except such a bidder is found to be incapable of carrying out the contract or fails to provide a performance bond.
(viii) CBN instead of announcing the results of the evaluation of the financial bids and consequently the result of the evaluation of both the technical and financial bids went incommunicado and refused to make any public announcement on these issues as it had previously done with the opening and evaluation of the technical bids and the opening of the financial offering.
(ix) Instead, CBN by letter dated 27th March, 2001 faxed to SAP and in a manner eerily reminiscent of the famous “June 12th annulment informed SAP that the bid had been closed because the bids did not meet CBN’S “technical and financial expectations”. A copy of this letter is delivered herewith as exhibit “SAP 2”.
(x) To cap it all, by another letter dated 30th March, 2001 – supposedly written three (3) days after the above letter but received by SAP by fax 3 hours after the receipt of the letter dated 27th March, 2001 CBN, ostensibly upon a successful evaluation of the technical bid, requested from SAP a “fresh commercial bid” to enable negotiations to commence. A copy of this letter is also delivered herewith as exhibit “SAP 3”
(xi) In a patent attempt to legitimize this “annulment” by “closure” and foreclose a requirement to account for its action CBN ensure that this letter requesting “fresh commercial bids” was sent not only to SAP but also to the component suppliers which had made up part of SAP’S bid as well as to all the other lead contractors/members of the rival consortia which had participated in the now “closed” bid.
(xii) SAP was totally taken aback by the reasons given for the “closure” of the bid”.
(italics mine)
Going through the above depositions, one will have found in favour of the respondents as there were apparent failures by a public body to conclude to finality a public duty by completing the valuation of the bids for which the respondents, among other consortia, tendered its offer. But by having a closer look at the documents which accompanied the affidavit in support aforesaid, especially section II of the document titled “Central Bank of Nigeria – Invitation for Bids (IFB) for Enterprise – wide software package IFB Number: CBN/EAGLES/IFBI/001 – INSTRUCTION TO BIDDERS.
Paragraphs 23.3 and 23.4 provide, as follows-
“23.3. Prior to the detailed evaluation, pursuant to Clause 25, the purchaser will determine the substantial responsiveness of each bid to the bidding documents. For purposes of these clauses, a substantially responsive bid is one which conforms to all the terms and conditions of the bidding documents without material deviations, the purchaser’s determination of bid’s responsiveness is to be based on the contents of the bid itself without recourse to extrinsic evidence.
23.4. A bid determined as not substantially responsive will be rejected by the purchaser and may not subsequently be made responsive by the bidder by correction of the non-conformity (italics mine)
I think by the appellants letter to the respondent which was annexed as exhibit “SAP 2” as deposed to in paragraph 4(ix) of the affidavit in support, the respondents were, in clear and no uncertain terms informed that their bids were not substantially responsive and were thus rejected in compliance with the above provisions. In further clarification (as if the above paragraphs do not constitute enough red signal to an unsuccessful bidder), the document goes on to provide in paragraph 30.1 as follows –
“30.1. The purchaser reserves the right to accept or reject any bid, and to annul the bidding process and reject all bids at any time prior to award of contract, without thereby incurring any liability to the affected bidder or bidders or any obligation to inform the affected bidder or bidders of the grounds for the purchaser’s action.” (italics mine)
Although no reason has been given for the rejection or annulment of the respondent’s bid process, the appellant could not be held responsible for its action as it had the power to do so. The respondents cannot say that they were unaware of the above provisions, which entitled the appellants to act the way they acted. The position of the law is that where a person has given his consent to a particular cause of event or action, he cannot later be heard to complain. This principle is akin to the principle of law of torts: Volanti Non fit injuria. The respondents have In this case no right to complain. Moreso, they had no right to protect at that negotiating level. No contract was yet entered by the parties. It also made clear by paragraph 3.1 that the bidder shall bear all costs associated with preparation and submission of its bid and all costs incurred by itself or its representatives in attending the bid opening. The purchaser will in no case be responsible or liable for such costs, regardless of the conduct or outcome of the bidding process. By paragraph 14.5, where there was security furnished by a bidder and it appeared that he was unsuccessful, his security will be discharged! returned as promptly as possible. This, perhaps was a right which the respondent could have claimed in the alternative. There was however not that claim before the lower court. A court grants what is asked for by an appellant/applicant. At the risk of repetition, the order of mandamus does not issue where there is exercise of discretion or where there is alternative specific remedy. The paragraphs quoted above from the CBN document on instructions to bidders conferred discretion on the CBN to cancel/reject or annul any bid at any time prior to conclusion of the actual contract. It also conferred the remedy of claim of security furnished by the bidder where he is unsuccessful. See further, the cases of: Ex parte Law, Merit (1863) 33 LJQB; Hanafi v. Central Board of Public Health (1960) Sudan LJ., Report No. 230; Adesanya v. President of Nigeria (1981) 2 NCLR 358. Section 27 of the CBN Decree 24.of 1991 has no relevance to the appeal on hand. Reference to it by the lower court was of no moment at all.
In the final analysis, I find some merit in this appeal and same is allowed by me in part. The ruling of the lower court delivered by Okeke, J. on 25/2/2002 is hereby set aside. The preliminary objection ought to have been upheld as it was well grounded. Accordingly, I hereby make an order upholding the preliminary objection. The order made for mandamus in the ex parte motion granted the respondent leave to apply for an order mandamus compelling the CBN to complete the valuation of the bidding process in respect of IFB No. CBN/EAGLES/IFB/001- Invitation for bids for the supply and implementation of Enterprise Resource Planning System is also set aside. Suit No. FHC/ABJ/CS/180/2000 pending before the lower court is hereby struck out. The appellants are entitled to costs in the sum of N 10,000.00 from the respondents in this appeal.BULKACHUWA, J.C.A.: I have read before now the judgment just delivered by my learned brother, Muhammad, JCA.
This case is a proper situation where an order of mandamus cannot be issued against the appellant to “complete the evaluation of the bidding process in respect of IFB NO: CBN/EAGLES/IFB/001 -invitation for bids for the supply and implementation of Enterprise Resource Planning System – for which the plaintiff/applicant was a bidder by publicly declaring the results of the evaluation of the bidding process.”
Particularly so as the invitation for bids, to which the appellant is the purchaser and the respondent, the Bidder by paragraph 30.1 thereof – on the purchasers right to accept bid and to reject any bid provides thus:
“The purchaser reserves the right to accept or reject any bid and to annul the bidding process and reject all bids at any time prior to award of contract, without, thereby, incurring any liability to the affected bidder or bidders or any obligation to inform the affected bidder or bidders of the grounds for the purchasers action.”
It is thus the right of the purchaser to reject or to accept any bid or to annul the process of the bidding before award of the contract. Here the contract has not been awarded and an order of mandamus cannot be issued against the appellant as the terms of the biding gives him the discretion of rejecting a bidding without incurring any liability to the affected bidder or any obligation of informing the bidder the reasons for his action.
For the above reasons and the reasons more fully stated by my learned brother, Muhammad, JCA, it is my view, that this appeal has merit, I allow it and abide by the consequential orders in the lead judgment including orders as to costs.ODUYEMI, J.C.A.: I have had the privilege of reading in advance the judgment just delivered by my learned brother, Muhammad, JCA. The facts of the case are as follows:
The respondent in this court in an originating summons action applied by motion ex parte filed on 17th May, 2001 in the Abuja Judicial Division of the Federal High Court for the following orders and reliefs from the court. (the lower court):
“(i) An order granting SAP leave to apply for an order of mandamus compelling the Central Bank of Nigeria – “CBN” -to complete the evaluation of the bidding process in respect of IFB NO: CBN/EAGLES/IFB/001 – “Invitation for bids for the supply and implementation of Enterprise Resource Planning System” – for which the plaintiff/applicant herein was a bidder by publicly declaring the results of the evaluation of the bidding process for:
(a) the technical evaluation of the bids submitted by the bidders.
(b) the evaluation of the financial offers of all the bidders.
Stating clearly the basis therefore in accordance with the merit point system stipulated in clause 25.7(e) of the invitation for bids to which all parties to the bid including CBN subscribed to prior to the submission of bids and are bound by.
(ii) An order granting the plaintiff leave to issue and serve the application for mandamus and other originating processes filed herein on the defendant at Abuja, Nigeria by substituted means through one insertion each in three (3) National Daily Newspapers in circulation in Nigeria.
(iii) An order that the grant of leave herein shall operate as a stay of any action or further action by the CBN in respect of:
(a) The annulment, closure of, and/or cancellation of the above process without completing it publicly by stating the results of the technical and financial evaluation of the bids in accordance with the terms of the invitation to bid:
(b) The commencement of a fresh/new ‘bid process” by the issuance of fresh/new invitations for commercial bids in any guise howsoever from the parties to the uncompleted bids for either the whole or any component part of the above contract.
All pending the hearing and determination of the substantive application/motion on notice filed in this cause.
(iv) Specifically, an order of interim injunction restraining the CBN from giving any effect to the “annulment/closure/cancellation” of the above bid process by continuing with any “fresh/new invitations for bids” from any of the parties to the uncompleted bid for either the whole or any component part of the above contract pending the hearing and determination of the substantive application/motion on notice filed in this cause.
The grounds of the application are stated in the statement in support of the application for leave as follows:
“1. The defendant is a public body and as such is under the supervisory jurisdiction of the court exercised by judicial review of its administrative options.
2. The defendant is under a duty to act fairly in the consideration and evaluation of the bid for its enterprise resource planning contract which it invited the plaintiff to bid for and which the plaintiff bid for at very substantial cost.
3. The defendant was under a duty to follow its laid down rules for the evaluation of the bids submitted for its enterprise resource planning contract and not to act in a biased manner in favour of or against any of the bidders.
4. The defendant’s actions before and after the cancellation of the bid for the above contract were in contravention of its public duty, in that:
1. CBN – the respondent herein, as Nigerian public corporation, charged with certain public duties, under the ministerial direction of the Federal Government of Nigeria and the supervisory jurisdiction of the High Court, exercisable by judicial review of its actions, of its own volition and in pursuance of a professed desire to better administer the Nigeria finance and banking system, solicited for bids from willing, shortlisted, suppliers for the supply and implementation of an enterprise resource planning system. These “invitations for bids” were delivered directly to the corporate headquarters of the suppliers considered and SAP – the applicant herein, was thus contacted.
The documentation for the invitations for bids enumerated several conditions for the submissions and evaluation of a valid bid including:
i. The collection of a set of bid forms/documents paying therefore the sum of $2,500.00;
ii. the provision of a bid security by way of a bank guarantee for a sum equivalent to 1% of the value of the bid submitted;
iii. arranging for “site visits” to inspect functional sites where the systems proposed to be supplied were already functional which involved transporting the bidder’s men and material to several countries all over the world.
iv. The setting up of a “consortium” to ensure that the system proposed covered all the component parts of the CBN’S operations which, to CBN’s knowledge, involved the retention of legal financial and technical advisers, the fulfillment of all of which necessitated SAP incurring substantial expense.
ii. SAP duly complied with all the antecedent conditions and submitted for evaluation, as required, a sealed bid comprising of two (2) “envelopes” as follows:
(a) An “outer envelope” containing a “technical” bid setting out the details of the technical functions of the system it proposed as a solution fit for CBN’s requirements as communicated in the bid documents; and,
(b) An “inner envelope” containing a “financial” bid cost at which SAP could provide the envisaged “technical” solution to be opened only if the “technical” bid met and exceeded CBN’s requirements.
iii. The bid opening was set for the 14th of February, 2001 at CBN’s offices in Abuja at which SAP duly attended. According to the procedure set out in the bid document the results of the, evaluation of the “technical bids” by CBN’s appointed “technical project team/consultants” led by the reputable Accounting firm PRICEWATERHOUSE COOPERS “PWC” stating the basis therefore would be announced. This was done and the results as announced by the Consultants ranked the technical bids thus:
– 1st – SAP
– 2nd – Oracle
– 3rd – Lawson
immediately after this was done CBN’s consultants announced their recommendation that Lawson’s financial bid be returned to it unopened for “failure to meet CBN’s technical requirements thereby precluding it from further consideration before proceeding to open the “financial bids” publicly as prescribed by the bid documents. Thereafter the financial bids for the two remaining “bidders” were opened publicly and the results as follows:
– SAP $22, 312, 657.00 (twenty two million, three hundred and twelve, six hundred and fifty seven dollars only)
– Oracle $28,211,454.00 (twenty eight million, two hundred and eleven, four hundred and fifty four dollars only)
thereby giving SAP a bid that was approximately $6 million lower than Oracle’s bid such that at the conclusion of this stage SAP had a technically superior bid and a better price. By the bid documents CBN was to immediately proceed to verify the details of the financial bids by a process of “clarification” to confirm formal and arithmetical accuracy only with the proviso (in the bid documents) that in this process “no change in the price or substance of a bid” was to “be sought, offered or permitted”.
iv. Surprisingly however to date, CBN is yet to release the results of these “clarifications” despite several formal and informal requests for same by SAP whereupon SAP commenced investigations into the seemingly inexplicable delay only to learn that the results of this “publicly conducted exercise would most likely never see the light of day because the “wrong” party/bidder was in “danger” of wining/incensed by these most cynical acts of prejudice SAP commenced informal review processes to compel a completion of the bid process only for CBN to proclaim an ‘annulment” of a most costly and laborious process by declaring the bid “closed” Without ever releasing the results of the evaluation of the financial bids.
v. This “closure/annulment” was communicated to SAP by CBN at 1.47 p.m. on the 23rd of April, 2001 purportedly for failure of any of the bids considered to meet CBN’s “technical and financial” requirements only for the same CBN – 3 hours Later – by another fax to request for the submission of “fresh financial” bids ostensibly premised on a satisfactory “technical” presentation. SAP strongly protested, in writing, this inexplicable volte face claiming that the invitation of a “new process” was designed to ensure that a favoured party had another “bite at the cheery” and that this was motivated by underhand and illicit considerations and called for the immediate, release, of the results of the financial evaluation as CBN was bound to do by the very terms of the bid. Despite the grave and damming allegations made therein and the delivery of same to CBN by courier CBN has failed to deny; controvert or in any way respond to this letter, hence this application.
vi. In the premises there is an urgent and pressing need for a judicial review of this process that admits of the reliefs sought herein and this is a proper case for this Honourable Court to act.”
There was also an affidavit of 8 paragraphs in support of the application.
Also the, affidavit in support of the motion ex-parte had annexed to it 3 annexures thus –
Exhibit “SAP I” – A copy of both the invitation to bid and the bid form/documents obtained from the respondent/appellant. See pages 20 – 71 of record of proceedings.
Exhibit “SAP 2” – copy of Letter dated 27th March, 2001 faxed to applicant by respondent/appellant informing respondent that to none of the consortium bids (including that of applicant/respondent) met the bank’s expectation. – See P. 72 of record of proceedings;
Exhibit “SAP 3” – copy of another letter dated 30th March, 2001 from appellant to respondent forwarding another document containing the conditions and schedule of requirements for a fresh bid to which respondent was invited to confirm or represent its costs at a meeting in the office of the Deputy Governor, Domestic M & B Policy of appellant on 9th April, 2001 – See p. 73 of record, of proceedings.
In addition, there was filed in the lower court by the applicant an affidavit of urgency followed on 21st May, 2001 by a further and better affidavit of 3 paragraphs.
The motion ex-parte was heard by the lower court on 21st May, 2001 consequent upon which the following orders were made by the court-
“(a) That prayer 1 is granted as prayed.
(b) That prayer 2 is granted in that the publication shall be once in each of the Daily Times, The Guardian and ThisDay newspapers.
(c) That prayers 3 and 4 being of the same purpose, prayer 4 is specifically granted.
(d) That the plaintiff/applicant is to give an undertaking as to damages should it turn out that the ex-parte interim injunction ought not to have been made.
(e) That the suit is adjourned to Monday, the 4th day of June, 2001 for hearing of the motion on notice.”
Thereafter the motion on notice in respect of the application was filed at the registry of the court on 22nd May, 2001.
When the motion on notice was served on the respondent/appellant, it filed a notice to raise preliminary objection at hearing of applicant’s motion for interlocutory orders to the suit and the orders sought upon the following grounds –
(i) Order of mandamus is only applicable to an existence of a statutory duty on the part of a public officer.
(ii) The issue in this suit is only applicable to a breach of contract if any.
(iii) The motion for ex-parte was granted by mistake because the suit was not properly constituted.”
The lower court heard arguments of counsel in respect of the preliminary objection.
In a considered ruling given on 25th February, 2002, the learned trial Judge held that the preliminary objection lacked merit and dismissed it.
The appellant felt aggrieved by that ruling and has, with leave of this court, appealed to this court by a notice of appeal which, shorn of their respective particulars read as follows:
Grounds of appeal
Ground One
The learned trial Judge erred in law and on the facts when he ruled at pages 7 – 8 of his ruling that:
‘section 27(l),(ii) of the Central Bank of Nigeria Decree No. 24 of 1991 empowers the bank to promote the establishment of bank clearing systems and provide facilities for the conduct of clearing business in premises belonging to the banks. I agree with the learned counsel for the plaintiff that the substantive case deals with powers of the Central Bank of Nigeria with respect to the bank clearing system and it was in the exercise of such power that the defendant is awarding contract for clearing system’.
And thereby occasioned a miscarriage of duty.
Ground Two
The learned trial Judge erred in law and on the facts when he ruled at pages 7-8 of his ruling that:
What the plaintiff is challenging is not breach of contract, but the decision of the defendant to cancel the bidding process and the manner the decision was taken”
And thereby occasioned a miscarriage of justice.
Ground Three
The learned trial Judge erred in law in assuming jurisdiction over the suit.”
On its part, the respondent to the appeal in this court filed a notice of preliminary objection to the hearing of the appeal and seeks an order for the striking out or dismissing the appeal as incompetent on the following grounds –
“(i) The grounds of appeal contained in the appellant’s notice of appeal in this matter, particularly grounds 1 and 3 thereof do not flow from the ruling of the lower court dated 25th February, 2002 appealed against.
(ii) The appellant’s issue 2 contained in the appellant’s brief of argument filed on the 13th January, 2003 incorporating ground 3 in the notice of appeal was never raised at the lower court by any of the parties, neither was it decided upon by the lower court.
(iii) The appellant has not sought leave, neither has it been granted leave to argue new grounds on appeal.”
As required by the rules, parties filed briefs in this court. In addition, the appellant filed a reply brief which was deemed duly filed by this court on 19th April, 2004,
The appellant distilled for determination of this appeal two issues thus:
(i) whether the respondent’s suit at the Federal High Court, Abuja was for the enforcement of the contractual powers of the appellant i.e. Central Bank of Nigeria (CBN) under section 27(l)(ii) of the Central Bank of Nigeria (CBN) Decree No. 24 of 1991;
(ii) whether the respondent’s suit is not predicated on a breach of contract but a decision by the defendant to cancel a bid process and the manner of the decision and whether in either of the two circumstances the Federal High Court can be said to have the jurisdiction to hear and or determine the matter.”
For its part, the respondent, in the amended respondent’s brief, after contending:
(i) that ground 2 in the notice of appeal ought to be deemed as abandoned; and
(ii) that it has in its notice of preliminary objection previously filed, sought an order to strike out ground 1 of the notice of appeal and issue 1 of the appellant’s brief – postulated one issue for resolution of this appeal thus –
“Whether the Federal High Court indeed lacked jurisdiction to entertain the, suit.”
The lead judgment of my learned brother, Muhammad, JCA, has resolved the preliminary objections of the respondent against ground 1 in the notice of appeal and issue I thereon as well as the argument that ground 2 of the notice of appeal lacks merit and dismissed them accordingly.
I am in entire agreement with the reasonings contained in the lead judgment in those respects. I adopt them as mine and accordingly, I too, dismiss the objections to ground 1, and ground 2 in the notice of appeal as well as issue 1 in the appellant’s brief.
Similarly, I am in full agreement with the reasons in the lead judgment concerning the issue of jurisdiction as contended in the briefs of the parties and accordingly, I agree with the conclusion that the lower court had jurisdiction to entertain the suit brought before it.
In that respect, I too, resolve the issue concerning the jurisdiction of the lower court against the appellant.
I now turn to consider the merit or otherwise of the appeal in respect of the remaining aspects of the appeal having held that the lower court had jurisdiction to entertain the suit.
I have already indicated in this judgment the respective issues raised by the parties.
However, I am of the humble opinion that the remaining aspects of the appeal can be resolved on one issue only i.e. whether in the circumstances of this case the lower court was justified in dismissing the application of the appellant for the suit to be struck out on the grounds that:
(1) Order of mandamus is only applicable to existence of a statutory duty on the part of a public officer;
(2) The issue, in this suit is only applicable to a breach of contract if any;
The motion for ex parte was granted by mistake because the suit was not properly constituted.”
For the appellant, it is submitted as follows:
(i) That there is nothing in the, claims for relief by the applicant the grounds or the affidavit in support which could be said to support the ruling of the learned trial Judge that the basis of the suit was for the enforcement of the contractual powers of the appellant under section 27(1)(u) of the Central Bank of Nigeria Decree No. 24 of 1991; therefore the suit of the respondent could not be said to be for the enforcement of the contractual powers of the appellant under S. 27(1)(u) of the Decree.
(ii) That though the respondent tried hard to deny the true character and/or nature of the suit it filed before the lower court by insisting that its challenge is to the decision of the appellant to cancel the bid process and the manner of its cancellation, the respondent could not escape the fact that the Issue of contract keeps on recurring throughout its processes in the suit.
(iii) That there is nothing in the claim of the respondent indicating in clear terms the decision of the lower court that the basis of the action of the respondent is not in contract or for breach of contract but for breach of statutory powers of the appellant under S. 27(1)(u) of the Decree which established the appellant.
(iv) Finally, it is contended by the appellant that the suit itself discloses no reasonable cause of action, that there is no contract in place for which a cause of action for its breach is maintainable.
For the respondent, it is submitted in the amended brief of argument thus:
(i) That in line with arguments, of counsel for the applicant/respondent, the learned trial Judge was right in its finding that the suit of the applicant was not predicated on contract but that the court also found that in any event, even a suit based on contract could still maintain an action for the reliefs of mandamus and injunction claimed by the respondent.
(ii) That the gravamen of the suit in the court below was that in the fulfillment of its regulatory function generally and specifically over the bank clearing system the Central Bank (appellant) had initiated a “process” i.e. a solicitation for bids and that as a consequence of this bid process the appellant could contract with persons who had participated in the process of the bid; – that in the conduct of the bid process certain public duties were incumbent on the appellant and that mandamus is not restricted to the exercise of statutory duty but it may be granted to compel a public duty.
(iii) That the appellant willfully defaulted in the discharge of its public duty by deviating from the set process.
(iv) It is also contended that the bid, the subject matter of the-suit which is for the supply and implementation of an Enterprise Resource Planning System is a contract/bid as in consequence of appellant’s executive and/or administrative actions for which the respondent sought, in the lower court for orders of mandamus and injunction against the appellant.
Relies on – Ulegbede v. Commissioner of Agriculture, Benue State (1996) 8 NWLR (pt. 467) 437.
Whatever the conflict of submission between the parties to this appeal; it is common ground that-
(a) This action by the respondent, arose from an invitation to the respondent along with two other bidders to tender for the supply and implementation of an Enterprise Resource Planning System as described in exhibit SAP 1.
(b) That the respondent in the lower court sought to enforce its rights against the appellant consequent to the issue by the appellant of a letter of termination or the process of bidding exhibit SAP 2.
(c) That the reliefs claimed by the respondent are, inter alia, for:
(i) An interim order of mandamus; and
(ii) An interim order of injunction.
Case law has stipulated the conditions which an applicant for either or both of these reliefs in an application ex-parte must satisfy before it can successfully establish its entitlement to the exercise of the court’s discretion in its favour by the court – both reliefs being subjects of equity and discretionary.
These condition, are-
(1) In the case of ex-parte order of injunction –
(a) that there is a real urgency but not a self induced urgency;
(b) in an interlocutory or interim injunction, until a certain day, usually, the next motion day by which time the other side should have been put on notice;
(c) when the court considers on a prima facie view that all otherwise irreparable damage may be done to the plaintiff before an application for an interlocutory interim injunction can be heard after notice has been given to the other party;
(d) when it is necessary to preserve the res which is in danger or imminent danger of being destroyed;
(e) although it is made without notice to the other party, there must be a real impossibility of bringing the application for such injunction on notice and serving the other party.
2. In an interlocutory injunction granted after due contest, inter partes the court has to decide a number of important factors including-
(a) that the applicant must show that there is a serious question to be tried;
(b) that the applicant must show that the balance of convenience is on his side; i.e. that more justice will result in granting the application than in refusing it;
(c) that damages cannot be an adequate compensation for his damage or injury if, at the end of the day, he succeeds in the action;
(d) that the applicant gives a satisfactory undertaking as to damages except in recognized exceptions-
See-
(i) Kotoye v. Central Bank of Nigeria (1989) 1 NWLR (Pt. 98) 419;
(ii) Obeya Memorial Specialist Hospital v. A.-G., (Federation) (1987) 3NWLR (Pt.60) 325;
(iii) Missini v. Balogun (1968) 1 All NLR 318;
(iv) Animashaun v. Governor of Lagos State (2002) 16 NWLR (Pt.793) 282;
(v) Unipetrol (Nig.) Plc. v. Agip (Nig.) Plc. (2002) 14 NWLR (Pt. 787) 312.
In so far as the making of all order for mandamus is concerned part from case law, it is the specific requirement of Order 47 rule (5) of the Federal High Court (Civil Procedure) Rules, 2000 that – in this as in other applications for judicial review, the court shall not grant leave on the ex-parte application of the applicant unless it considers that the applicant has a sufficient interest in the matter to which the application relates.
Furthermore, the following conditions apply under case law-
(i) Mandamus lies to secure the performance of a public duty, in the performance of which the applicant has a sufficient legal interest; The applicant must show that he has demanded the performance of the duty and that performance has been refused by the authority obliged to discharge it – It is pre-eminently a discretionary remedy and the court will decline to award it if another legal remedy is equally beneficial, convenient and effective.
(ii) The duty to be performed must be of a public nature.
Mandamus will not lie, in general to secure the due performance of the obligations owed by a company towards its members or to resolve any other private dispute.
See –
(i) R v. Bank of England (1819) 2 B & Ald. 620; (English Reports Vol. 106 p. 492);
(ii) Davies v. Gas Light & Coke Co. (1909) 1 Ch. 708
(iii) De Smith’s Judicial Review of Administrative Action 4th Ed. – Stevens p. 540;
(iv) Wemabod Estates Ltd. v. Joyland Ltd. (2001) 18 NWLR (Pt. 744) 22.
From the excerpts of the documents in support of the application ex-parte before the lower court already quoted in this judgment, it is clear that the applicant ex-parte before the lower court based its claim for reliefs on the following –
(i) Section 27(1)(u) of the Central Bank Decree No. 24 of 1991; which reads thus-
27(1) The Bank may-
(a) …
(b) promote the establishment of bank clearing systems and provide facilities for the conduct of clearing business in premises belonging to the Banks’.
(ii) The offer which the respondent made to the appellant in response to the invitation to the respondent and two others to bid for the works intended to be executed by the appellant and contained in the document – “SAP 1” annexed to the affidavit of respondent; and
(iii) The alleged termination of the process of bidding contained in the document – Exhibit “SAP 2” which is contained in the record at page 72 but which for convenience is quoted hereunder-
“Central Bank of Nigeria,
Zaria Street,
E.M.B.0137
Garki, Abuja.
27th March, 2001.
Ref CSD/EAGLES/IFB/007
The Managing Director,
SAP Nigeria Limited
The Octagon,
13a A. J. Marinho Drive
Victoria Island
Lagos, Nigeria.
Dear Sir,
Bid for the supply and implementation of an Enterprise Resources Planning System.
With reference to bid No. CBN/EAGLES/IFB/001 dated 29th September, 2000 submitted on behalf of your good selves, Messers SAP Nigeria Limited made in response to the Bank’s Invitation for bids (IFB) dated 1st August, 2000 of the supply and implementation of the above package.
I am to inform you that after a careful evaluation of both the technical and financial proposals contained in all the bids submitted pursuant to the IFB, including your above mentioned bid, the bank has come to the conclusion that none of the consortium bids meets the bank’s expectations.
In consequence therefore, and in pursuance of 30, Section (ii) of the IFB, the Bank regrets to inform you that the above mentioned bid submitted by you has not been successful. The entire bidding process is also consequently closed.
Please contact the undersigned as soon as practicable for the return of the bid security submitted by you.
The bank regrets any inconvenience this decision may cause you, while it looks forward to a more mutually acceptable and satisfying relationship in the future.
Thank you
(SGD)
Yours faithfully,
Dr. Shamsudden Usman.
Deputy Governor, Domestic M & B Policy”
In my respectful view, section 27(1)(u) of the Central Bank Decree, 1991 only confers a power on the Central Bank to promote the establishment of bank clearing systems and provide facilities for the conduct of clearing business in premises belonging to the bank.
It is not a duty which every member of the public, least of all the respondent in this appeal which is not shown to be carrying on bank banking business for which the clearing facility would be useful.
One now has to consider whether the particular bid process contained in exhibit “SAP 1” is one in respect of which exhibit “SAP 2” can ground the reliefs of mandamus and injunction claimed by the respondent.
In this connection, one can only look into the pages contained C in exhibit “SAP 1” to determine the entitlement of the respondent to the reliefs it claimed before the lower court.
In that respect, the following clauses in the document exhibit “SAP 1” are considered relevant-
Section 1 – classes 1, 2, 3 and 4.
“1. The Central Bank of Nigeria (CBN) is restructuring and re-engineering its operations and processes to be more effective and efficient in delivering its mandate.
2. Information Technology has been recognised as a key enabler to achieve the restructuring objectives.
3. The CBN therefore invites reputable software houses with international experience to bid for the supply of all enterprise-wide software application system, and associated -services.
4. The Central Bank of Nigeria (hereinafter referred to as purchaser” or “CBN” as appropriate) now invites sealed bids from eligible, shortlisted bidders for the supply of an enterprise-wide application package software.”
Section II – clauses 1; 1.1(a)-(e); 3.1, 29.1; 29.2; 30; 30.1, 30.2; 31; 31.1 and 31.2.
1. Subject of the invitation for bids
1.1 Interested suppliers from amongst those who have been invited to bid, shall submit bids for:
(a) the supply of an appropriate integrated enterprise-wide package software system(s).
(b) the supply of associated system software, including standard utilities and other software tools, that may be needed to run the package.
(c) the implementation of all of the software package items mentioned above.
(d) providing maintenance and after-sales support in respect of all of the software package items mentioned above, if and as requested by the purchaser.
(e) providing user training in respect of all of the package software items mentioned above, if and as requested by the purchaser.
3. Cost of bidding
3.1 The bidder shall bear all costs associated with preparation and submission of its bid, and all costs incurred by itself or its representatives in attending the bid opening. The purchaser will in no case be responsible or liable for such costs, regardless of the conduct or outcome of the bidding process.”
Also “29 Purchaser’s right to vary quantities at time of award.
29.1. The purchaser reserves the right at the time, of award of contract to increase or decrease the quantity of goods specified in the schedule of requirements without any change in price or other terms and conditions.
29.2. In respect of services such as implementation, training and maintenance/support, the purchaser reserves the right not to contract for any or all of such services listed in the schedule of requirements without any change in price or other terms and conditions.
29.3. The purchaser also reserves the right not to contract for a specific item(s) in the schedule of requirements if such item(s) is (are) qualified as all optional item(s) in the schedule.
30. Purchaser’s right to accept any bid and to reject any or all bids
30.1. The purchaser reserves the right to accept or reject any bid, and to annul the bidding process and reject all bids at any time prior to award of contract, without thereby incurring- any liability to the affected bidder or bidders or any obligation to inform the affected bidder or bidders of the grounds for the purchaser’s action.
30.2. The purchaser reserves also the right to declare the invitation for bids unsuccessful if there is sufficient evidence for lack of competition or when it is established that the bid prices are too high.
31 Notification of award-
31.1. Prior to the expiration of the period of bid validity, the purchaser will notify the successful bidder in writing by registered letter, or by facsimile or e-mail, to be confirmed in writing by registered letter, that its bid has been accepted.
31.2. The notification of award will constitute the formation of the contract.”
Now it is elementary law of contract known to every student of the law of contract that-
“A communication by which a party is invited to make an offer is commonly called an invitation to treat. It is distinguishable from an offer primarily on the ground that it is not made with the intention that it shall become binding as soon as the person to whom it is addressed simply communicates his assent to its terms. A statement is clearly not an offer it expressly provides that the person who makes it is not to be bound merely by the other party’s notification of assent but only when he himself has signed document in which the document is contained.”
See – Financings Ltd. v. Stimson (1962) 1 WLR 1184. Also Chitty on Contracts – General Principles 27th Edition at p.94 Art. 2005.
It is thus little wonder that respondent has spared no effort in maintaining that its claim is not in contract.
The claim of the applicant in the lower court in the face of exhibit “SAP 1” is certainly one to which the law of contract is applicable.
It entered into a bid transaction with the appellant in which the appellant had clearly indicated in its invitation to treat that it reserves the right to accept or reject any bid and to annul the bidding process and reject all bids at any time prior to award of contract without incurring any liability to the affected bidder or bidders or any obligation to inform the affected bidder or bidders of the grounds for the purchaser’s action – Clause 30.1.
In the event, the learned trial Judge clearly had no basis for that part of the ruling complained of in which he held that-
“I agree with the learned counsel for the plaintiff that the substantive case deals with powers of the Central Bank of Nigeria with respect to the bank clearing system and it was in the exercise of such power that the defendant is awarding contract for clearing system.
Mandamus is not restricted to the exercise of statutory duty, but it may be need (sic) compel a public duty. See: Shitta Bey v. Federal Civil Service Commission (supra).
The Central Bank of Nigeria is beyond doubt a public institution with public duties. What the plaintiff is challenging is not breach of contract, but the decision of the defendant to cancel the bidding process and the manner in which the decision was taken. I agree with the plaintiff’s counsel that where it is alleged that there is a breach of contract order of mandamus may be made. See: Ulegede v. commissioner of Agriculture Benue State (1996) 8 NWLR (Pt.467) 437.
It is my humble view that the preliminary objection lacks merit and it is hereby dismissed.”
I find that on the face of the processes, documents and affidavit which the applicant for ex-parte relief presented to the court, the applicant ex-facie disclosed no reasonable cause of action which would entitle it to the orders of mandamus and injunction which it sought from the lower court and which the court granted.
The appellant was clearly within its right to issue exhibit “SAP 2”. An injunction whether prohibitory or mandatory would normally not be granted to restrain a right which a defendant is entitled to exercise.
In the event, I find that the lower court was in error to have granted the orders it made on the ex-parte application of the respondent or to have refused the subsequent application of the appellant herein to strike out the suit of the respondent contained in its notice of preliminary objection the subject of the ruling which is now the subject of this appeal.
The appeal succeeds in part.
I hereby set aside the order of dismissal of the preliminary objection of appellant made by the lower court in suit No. FHC/ABJ/180/2001 delivered on 25th February, 2002.
In its stead, I hereby allow the preliminary objection and I strike out the respondent’s suit No. FHC/ABJ/CS/180/2001.
I award costs of N10,000.00 in favour of appellant.
Appeal upheld in parts.
Appearances
Ricky Tarfa, SAN, (with him, O. Jolaawo, Esq. and P. Tarfa [Miss]) For Appellant
AND
Lanre Olaoluwa, Esq. (with him, R. I. Chalokwu, Esq.) For Respondent
