HADO NIGERIA LIMITED & ANOR. V. CHRISBROWN INTERNATIONAL LIMITED & ANOR. (2013)

HADO NIGERIA LIMITED & ANOR. V. CHRISBROWN INTERNATIONAL LIMITED & ANOR.

(2013)LCN/6267(CA)

In The Court of Appeal of Nigeria

On Thursday, the 6th day of June, 2013

CA/PH/460/2012 (Consolidated)

RATIO

WORDS AND PHRASES: CAUSE OF ACTION

It is settled, from the authorities that a cause of action means the factual situation stated by the plaintiff, which if sustained, entitles him to the remedy against the defendant. It is that set of facts which gives the plaintiff the right to sue the defendant. It comprises every fact which is the material to be proved to enable the plaintiff to succeed. See EGBE v. ADEFARASIN (1985) 3 SC 214; THOMAS v. OLUFOSOYE (1986) 1 N.W.L.R. (Pt.8) 669. The reasonable cause of action is that cause of action which, in law, has some chances of success and which sets out the legal rights of the plaintiff and the obligations of the defendant. See RINCO CONST. CO. v. VEEPEE IND. LTD. (2005) 9 N.W.L.R. (Pt.929) 85.PER EJEMBI EKO, J.C.A.

JUSTICES

MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria

EJEMBI EKO Justice of The Court of Appeal of Nigeria

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

Between

HADO NIGERIA LIMITED CA/PH/460/2012

AND

NIGER DELTA DEVELOPMENT COMMISSION CA/PH/461/2012 Appellant(s)

AND

1. CHRISBROWN INTERNATIONAL LIMITED
2. NIGER DELTA DEVELOPMENT COMMISSION CA/PH/460/2012

AND

1. CHRISBROWN INTERNATIONAL LIMITED
2. HADO NIGERIA LIMITED CA/PH/461/2012 Respondent(s)

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment): The two appellants in these consolidated appeals were respectively and 2nd and 1st defendants in the suit No. FHC/PH /CS/291/2012 at the Federal High Court, Port Harcourt. The plaintiff in that suit is the 1st Respondent herein in the two consolidated appeals.
The Ruling and the judgment, both contained in one document/instrument, were delivered by the said Federal High Court (Coram: Lambo Akanbi, J.) on the same day. That is 4th October, 2012. The two defendants were aggrieved by the ruling and the judgment. Each of them brought his appeal separately. The appeal of the 2nd defendant. Hado Nigeria Ltd, was filed at 1.00 p.m. of 5th October, 2012. The 1st defendant, on their part, filed their appeal much later at 11.55 am on 8th October, 2012. The two appeals have been consolidated for ease and convenience and were heard on identical Records. For the same ease and convenience I will use the Record in CA/PH/461/2012 – the appeal of Hado Nigeria Ltd.
The consolidated appeals were argued on 22nd April, 2013 on the briefs exchanged by the parties. The 1st Respondent in both appeals did not file his brief in time. In each of the appeals he brought an application on 19th April, 2013 for extension of time within which to file the 1st Respondent’s Brief and an order deeming same as duly filed and served. The appellants, very anxious to avoid further delays, did not oppose the applications, which were each granted as prayed on the 22nd April, 2013. For each appeal the 1st Respondent’s Brief, filed on 19rh April, 2013, was deemed filed and served on the said 22nd April, 2013.
Because of the precedence among counsel and Mr. Oladejo Lamikanra, being a Senior Advocate of Nigeria and the Counsel to the Appellant in the appeal No. CA/PH/461/2012, the said appeal (CA/PH/461/2012) was first argued.
In the 1st Respondent’s Brief of Argument filed on 19th April, 2013 there is a notice of preliminary objection and the submissions thereon contained in paragraphs 2, 3 and 4 at pages 2 – 6 of the said brief. Upon the Counsel to the 1st Respondent, Mr. Dike, moving the preliminary objection; Lamikanra SAN for the appellant protested the competence of the preliminary objection. The contention of the senior counsel is that the preliminary objection, having not been filed giving the Appellant three (3) clear days, was a flagrant violation of Order 10 Rule 1 of the Court of Appeal Rules, 2011. Order 10 Rule 1 provides that a respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of the objection, and shall file such notice together with twenty copies thereof with the registry within the same time. This provision, designed to enhance the right to fair hearing, particularly audi alteram partem, is mandatory. While nothing may be wrong, in law, for the respondent to raise the preliminary objection in the respondent’s brief and argue the same therein, as that has been considered to be economical to all concerned, including the Court; it is mandatory for the respondent to file the preliminary objection as stipulated by Order 10 Rule 1. Apart from the respondent giving “the appellant three clear days notice” of the preliminary objection, he must file the notice of the preliminary objection.

As this Court observed in MOYOSORE v. GOV. KWARA STATE (2012) 5 N.W.L.R. (Pt. 1292) 242; it is the filing fee that gives legitimacy or validity to the notice of preliminary objection, or any court process for that matter, unless such fee was waived. I adopted this reasoning in ENGR. IBEABUCHI v. IKPOKPO (unreported CA/PH/406/2009 of 16th January, 2013.). Since it accords with the statement of the law espoused by the Supreme Court as to when a Court is competent to assume jurisdiction over any matter or process in the celebrated MADUKOLU v. NKEMDILIM (1962) 1 All NLR 587 at 593. Among the imperatives as to when the case, in this case the notice of preliminary objection, is competent for the court to exercise its jurisdiction over is when the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Without much ado, payment of the filing fee in accordance with Order 12 Rule 1 of the court of Appeal Rules, 2011 is a condition precedent for any valid notice of preliminary objection.

In additionOrder 10 rule 1 enjoins the respondent relying on a preliminary objection to give the appellant not less than three clear days before hearing date. This allows the appellant to prepare adequately for the objection. From all I have been saying this notice of preliminary objection contained in paragraphs 2, 3 and 4 of the 1st Respondent’s Brief is incompetent and it is hereby struck out. The 1st Respondent paid no filing fee therefore, apart from its being filed in flagrant disobedience of Order 10 rule 1 of the Court of Appeals, Rules 2011.
The preliminary objection and the arguments thereon are contained in paragraphs 2 and 3 at pages 5 – 8 of the 1st Respondent’s Brief in the appeal No. CA/PH/460/2012. It has all the features of the incompetent notice of preliminary objection in the appeal No. CA/PH/461/2012. For the same reasons given earlier in respect of the identical Notice of Preliminary Objection in CA/PH/461/2012, which reasoning and conclusions I hereby adopt herein, the Notice of Preliminary Objection in the appeal No. CA/PH/460/2012 contained in paragraphs 2 and 3 at pages 5 – 8 of the 1st Respondent’s Brief filed on 19th April, 2013 but deemed on 22nd April, 2013 is hereby struck out.
In the two appeals (CA/PH/461/2012 and CA/PH/460/2012) the parties exchanged briefs which were duly adopted at the hearing on 22nd April, 2013. The 2nd Respondent in the appeal No. CA/PH/461/2012, Hado Nig. Ltd, did not file any brief. He does not contest the appeal.
In the appeal No. CA/PH/460/2012 the 2nd Respondent, Niger Delta Development commission (NDDC), also did not file any brief in the appeal. He does not contest the appeal.
In the appeal No. CA/PH/461/2012 Lamikanra SAN of counsel for the Appellant merely adopted, without adumbration, the Appellant’s brief filed on 14th January, 2013 as his argument in the appeal and prayed that the appeal be allowed and the consequential reliefs granted. Mr. Oguaju-Dike of counsel to the 1st Respondent in this appeal, Chrisbrown International Ltd, similarly adopted, without adumbration, the 1st Respondent’s Brief filed on 19th April, 2013 but deemed filed on 22nd April, 2013 and prayed that the appeal, on the two issues he had formulated, be dismissed.
In the appeal No. CA/PH /460/2012 the Appellant’s Brief was filed on 15th January 2013. Mr. Ewule of counsel to the Appellant adopted this brief as the argument of the appellant, and without further adumbration, and urged that the appeal be allowed and all the consequential reliefs granted. For the 1st Respondent, Chrisbrown International Ltd, Mr. Oguaju-Dike of counsel, adopted the 1st Respondent’s Brief filed on 19th April, 2013, but deemed filed on 22nd April, 2013 and urged that the appeal be dismissed
I have read the four briefs in the two appeals, including raised therein and argued. In my view three main issues stand out clearly for determination of the two appeals. I acknowledge that each appeal, in a consolidated appeal, retains its separate identity and that the consolidation is only for purposes of convenience. It is for the same purpose that I will treat the issues and make findings on them of each appeal.
The three germane issues in the consolidated appeals are:
1. Whether the suit, from the writ of Summons and endorsements thereto, was properly constituted for the Court’s jurisdiction to be properly invoked?
(Ground 1 in appeal no. CA/PH/460/2012;)
(Grounds 2 & 3 appeal no.  CA/PH/461/2012)
2. Whether the final decision in the suit by the trial court was not perverse.
(Ground 4 in appeal no. CA/PH/460/2012)
(Grounds 7 in appeal no. CA/PH/461/2012)
3. Whether, in the entire circumstances of the case and the proceedings, the trial court had not denied the Defendants/Appellants fair hearing?
(Ground 3 in appeal no. CA/PH/460/2012)
(Grounds 6 in appeal no.  CA/PH/461/2012)
ISSUE 1
My reading of the briefs of the appellants in both appeals suggests that the gravamen of the complaint that the suit, at the time the writ was taken out, was not properly constituted as regards the necessary parties thereto, is that the plaintiff, the 1st Responded in both appeals, had no locus standi to commence the suit and that the statement of claim does not disclose any reasonable cause of action against the named defendants, who are now the Appellants.
Mr. Ewule of counsel to the Appellant in appeal No. CA/PH/460/2012 submits, under issue 3, that the averments in the statement of claim must be meticulously examined to see if any reasonable cause of action has been disclosed such as could vest in the plaintiff the right and standing to maintain the action against the named defendants in the suit, and that “the Statement of Claim must declare in clear terms the rights and obligations or interest of the plaintiff which has been or about to be violated”. It is only when a plaintiff discloses these that he can be said to have his locus standi in the action. Counsel cited a number of authorities, including A.G. LAGOS STATE v. EKO HOTELS LTD (2009) 18 N.W.L.R. (Pt. 1017) 378 at 450 F. H; A.G., ANAMBRA STATE v. A. G., FEDERATION (2007) 12 N.W.L.R. (Pt. 1047) 4; OJUKWU v. GOV. LAGOS STATE (1985) 2 N.W.L.R. (Pt.10) 806 etc.
For the Appellant in appeal no. CA/PH/461/2012 Lamikanra SAN submits that on the principle of ex turpi causa non oritur actio, Latinism for no action can arise from an immoral or illegal consideration, the plaintiff had no reasonable cause of action, and that the 1st Respondent, as the plaintiff, had by the averments in his Statement of Claim confessed to, or admitted, the sundry base causes as the basis for bringing the suit; accordingly no reasonable cause in law, therefore, vests in the plaintiff for this action. The Senior Counsel particularly under issues 2 and 3 formulated in the Appellant’s Brief in appeal no. CA/PH/461/2012, submits further that the proper and necessary defendants have not been joined. He points out, specifically in respect of Reliefs 1 and 5 claimed by the plaintiff, that the necessary parties, who are not before the trial court, are Secretary to the Government of the Federation (SGF) and the Bureau for Public Procurement (BPP) who are the authors of the No OBJECTION Letter. If one accepts this argument it means the action is not properly constituted since the necessary parties have not been joined, and the named defendants are mere nominal parties. What I understand the Senior Counsel to be saying is simply that the averments in the Statement of Claim having not disclosed reasonable cause against the named defendants, now Appellants, the action is merely frivolous and vexatious particularly that the authors of the NO OBJECTION Letter, forming the grouse of the plaintiff for the suit, are not parties to the suit. The plaintiff, I must add, has the liberty in the choice of the defendant.  The Court will not go out of its way to nominate a defendant for the plaintiff’s suit. For avoidance of any impression that the court has any interest in the suit, it will no do the function of the plaintiff.
Even upon my painstaking reading of the 1st Respondent Brief in both appeals I have not been able to see where he made serious effort to contest the arguments of the Appellants on whether the suit was properly constituted either as to his disclosing his locus standi and reasonable cause of action against the named defendants, or that ex facie the suit had been found on an immoral or illegal cause.
The reliefs clamed by the 1st Respondent, as the plaintiff, are at page 11 of the Record as follows:
1. Declaration that the certificate of NO OBJECTION dated 30/3/2012 in favour of the 2nd Defendant HADO NIG. LTD. for the construction of Port Harcourt/Owerri Road Junction Avu Ado Palm Etekwuru Road violated S.6(1) of the Public Procurement Act, 2007 an therefore void.
2. Declaration that the plaintiff is the one entitled to award and execution of the contract for the construction of the road.
3. Declaration that the exclusion of the plaintiff from the bid and tender for the contract for the road is wrongful, and abuse of due process and violated S.6(1) of the Public Procurement Act, 2007.
4. An order restraining the Defendant, her servants, agents and primes from awarding, executing, mobilizing to site funding the dualisation of Port Harcourt/Owerri road junction Avu Ada Palm Etekwuru Road Phase 1 located at Avue Etekwuru Oweri/Ohaji Egbeme, Imo State pending the determination of this suit.
5. An order setting aside the Notice of NO OBJECTION dated 30/3/2012 issued without due process and contrary to S.6(1) of the Public Procurement Act, 2007 or in the alternative, substituting the plaintiff for Hado Nig. Ltd. as the contractor for the construction of the aforesaid road.
6. The sum of N5,000,000,000.00 (Five Billion Naira) compensation.
The cursory glance at these reliefs would suggest that the substratum of the plaintiffs’ grouse of grievance is the Certificate of NO OBJECTION issued in favour of the 2nd Defendant, appellant in CA/PH/461/2012, allegedly in violation of Section 6(1) of the Public Procurement Act, 2007. To sustain these reliefs against the named defendants the plaintiff is enjoined to disclose a reasonable cause of action. It is settled, from the authorities that a cause of action means the factual situation stated by the plaintiff, which if sustained, entitles him to the remedy against the defendant. It is that set of facts which gives the plaintiff the right to sue the defendant. It comprises every fact which is the material to be proved to enable the plaintiff to succeed. See EGBE v. ADEFARASIN (1985) 3 SC 214; THOMAS v. OLUFOSOYE (1986) 1 N.W.L.R. (Pt.8) 669. The reasonable cause of action is that cause of action which, in law, has some chances of success and which sets out the legal rights of the plaintiff and the obligations of the defendant. See RINCO CONST. CO. v. VEEPEE IND. LTD. (2005) 9 N.W.L.R. (Pt.929) 85. Since in law, no action can arise from an immoral or illegal cause, no cause of action founded on such immoral or illegal cause can be a reasonable cause of action. I agree with Mr. Lamikanra SAN on this.
Before I go to analyzing the pleaded facts I will quickly dispose of the alternative remedy in the relief 5 to wit: an order “substituting the plaintiff for Hado Nig. Ltd. as the contractor for the construction of the aforesaid road. As submitted by the Senior Counsel, Mr. Lamikanra, on the authority of EGUASA DAVID ODIASE v. AUCHI POLYTECHNIC, AUCHI (1998) 4 N.W.L.R. (Pt. 546) 477 at 492 that “the courts do not make contracts for the contracting parties. No. It is a matter purely between them sese ipse”, on this principle of freedom of contract, founded on consensus ad idem the trial court was not in any legal position to have made that order. Accordingly, that alternative remedy deserves to be, and is hereby, struck out, as it is ultra vires the court to make the order.
Relief No. 4 is interlocutory in nature which should not have been made either on the writ on the endorsement on the writ. When this relief is read together with paragraphs 11, 12 and 13 of the Statement of Claim the inescapable impression one gets thereby is that the cause of action is yet to ripen, and that the action is purely pre-emptive. The plaintiff pleads no constituent elements of a valid contract, which include offer and acceptance. All he had pleaded are his expression of his interest in the road construction contract. No offer was made to him and none has been accepted. The material consideration to sustain the contract, if at all, was not pleaded. I do not see on what basis, therefore, he seeks, as he does in relief no, 2, the declaration that he is the one entitled to the award and execution of the contract for the construction of the road. This phantom also seems to be the basis of the Claim for N5,000,000,000.00 (Five Billion) Naira as compensation.
Assuming this was an action for breach of contract – a contract of service; the plaintiff’s remedy lies only in damages for breach of contract. It should have been an action in contract, not in administrative law. Where there is a total repudiation of contractual obligation the only remedy is an action for breach of contract and not for the party complaining of the breach to insist that the contract subsists. See COMMISSIONER FOR WORKS, BENUE STATE v. DEVCON LTD. (1988) 3 N.W.L.R. (Pt.83) 407 at 422 per Karibi-Whyte, JSC.
Paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 20, 21 and 22 of the Statement of Claim, at pages 3 – 6 of the Record, are quite germane to the entire claims. They are herein below reproduced, viz:
4. The Plaintiff entrenched interest in the AVU Ada Palm Etekwuru Road stems from the fact that the Managing Director and Chief Executive Officer of the Plaintiff, Mr. Chris Amadioha is an indigene of the host community and had prior to the inclusion of the road project in the NDDC budget, with the consent, permission and approval of the host communities and at their behest designed the AVU Ada Palm Etekwuru Road project and forwarded the design documents to NDDC through Distinguished Senator Hope Uzodinma, representing Imo West Senatorial District under the project falls for implementation/addition to their projects.
5. Further to the design, carried out be the Plaintiff in respect of the AVU Ada Palm Etekwuru Road, upon the inclusion of the road project in the NDDC budget of 2011, all the major stakeholders within the project area/host communities particularly the Traditional Rules, including ex-militants within that area wrote to the Secretary to the Government of the Federation recommending our client for the project, not just because of the quality services for which the Plaintiff is known for but more particularly for effective management of host Community relationship in executing the project, being a volatile Niger Delta Area. Copies of the said letter are hereby pleaded and shall be relied on at the trial of this suit. Notice is given to the Defendants to produce the original in their possession.
6. The SGE with a letter dated 22/3/2012 requested the BPP to issue certificate of No Objection to the 1st Defendant in favour of the 2nd Defendant in respect of the AVU Ada Palm Etekwuru Road subject matter of this suit without 2nd Defendant undergoing proper bidding for the contract.
7. The Bureau of Public Procurement replied the SGF on 29/3/2012 and requested the 1st Defendant to furnish her with the costs of each of the projects for which the certificate was sought to enable her issue the certificate copy of the letter is hereby pleaded and shall be replied on at the trial of this suit. Notice is given to the Defendants to produce the original in their possession.
8. The Secretary of Government of the Federation received the letter on 30/3/2012 and endorsed same to the Managing Director of the 1st defendant on 2/4/2012.
9. Curiously the Bureau of Public Procurement without waiting for or receiving from 1st defendant the costs of the projects purportedly requested issued the notice of No Objection dated the same 30/3/2012 copy of which is hereby pleaded and shall be relied on at the trial of this suit. Notice is given to the defendants to produce the original in their possession.
10. The certificate of NO OBJECTION dated 30/3/2012 did not follow due process and did not comply with Public Procurement Act 2007.
11. Unless the certificate of No Objection dated 30/3/2012 is set aside the 1st Defendant will go ahead to award the contract to the 2nd Defendant in violation of due process and against the interest of the Plaintiff.
12. The Plaintiff will suffer irreparable loss if the 1st Defendant acts on the certificate of No Objection dated 30/3/12012 and award the contract to 2nd Defendant.
13. It will be better to stop the 1st defendant from awarding the contract until due process to observed or this suit is determined either way.
15. The Plaintiff being an indigenous contractor of the area and on the understanding with the host communities and other stake holders made it possible for the project to be entered into the 2011 budget which cost her several millions of Naira.
20. When the Plaintiff observed the attempt to obtain certificate of No Objection in favour of the 2nd Defendant, she wrote to the defendant, the BPP and office of the SGF to point out the anomalies. Copies of the said letters are hereto attached and marked Exhibit 11 – 14 respectively.
21. The Plaintiff avers that after receiving her letter of protest, the 1st Defendant made efforts to further violate the law by producing a certificate of No Objection in favour of 2nd Defendant dated 30/3/2012 which copy is hereto attached and marked Exhibit BPP2.
22. The Plaintiff avers such Certificate of No Objection precedes the award of the contract of any project after observing due process.
The alleged illegal issuance of the Certificate of NO OBJECTION to Hado Nig. Ltd., by the Bureau of Public Procurement at the instance of the Secretary of the Government of the Federation (SGF) is the pivot on which the suit rests majorly. These authors of the said Certificate of NO OBJECTION are not parties in the suit. On this particularly the submissions of Mr. Lamikanra, SAN are unassailable. And of course, the 1st Respondent, as the plaintiff through his Counsel offered no useful answer. As submitted by Lamikanra SAN, correctly in my view, and on the sound authority of HENRY O. AWONIYI v. THE REGISTERED TRUSTEES OF THE ROSICRUCIAN ORDER, AMORC (NIG) (2000) 10 N.W.L.R. (Pt.676) 522 at 540 & 551; PEOPLES DEMOCRATIC PARTY (PDP) v. ALL PEOPLES PARTY (APP) (1999) 3 N.W.L.R. (Pt.594) 238 at 244; FAYEMI v. ONI (2009) 7 N.W.L.R. (Pt.1140) 223 at 254 – 256, the law is settled that no court of law will make an order, or give judgment, affecting the interest or right of a person or body that is not a party to the case and who was never heard in the matter. There can be no cleaner infringement of the Constitutional protection of fair hearing in Section 36 of the 1999 Constitution, particularly the right of audi alteram partem, than this suit has invited us to do against the SGF and the Bureau of Public Procurement against whom weighty allegation of infraction of Section 6(1) of the Public Procurement Act, 2007 has been copiously made. Without the SGF and the Bureau of Public Procurement the suit, particularly relies 1, 3 and 5 thereof, is a more empty shell, and the named defendants appear to be mere nominal parties.
The presence in the suit of necessary parties thereto is the sine qua non for a properly constituted Suit. Karibi-Whyte JSC had put it succinctly IN RE: MOGAJI v. MOGAJI (1986) N.W.L.R. (Pt.19) 759, that the “cardinal rule for the administration of justice is that principle conveniently expressed in Latin: interest rei publicace ut sit finis litium – the termination of litigation is in the public interest. Hence, where issues between the parties involve third parties whose interest are affected and the omission of which was bound to result in further litigation, such parties are those whose presence will be necessary for the effectual and complete adjudication before the Court and their presence as parties is a sine qua non for purpose”. Since this instant suit is liable to be defeated by the non-joinder of these third parties, the SGF and the Bureau of Public Procurement, it is my candid view that the suit before the Federal High Court, Port Harcourt was not properly constituted. It ought to have been struck out consequentially.
Now, I come back to the issue of ex turpi causa non oritur actio, which Mr. Lamikanra SAN of Counsel to the appellant in CA/PH/461/2012 had argued extensively. Counsel relies of Section 58(4)(a), (b), (c) & (e) of the Public Procurement Act, 2007 for this submission. The provisions are as follows:-
58.(4) “The following shall also constitute offences under this act-
(a) Entering or attempting to enter into a collusive agreement, whether enforceable of not, with a supplier, contractor or consultant where the prices quoted in their respective tenders, proposals or quotations are or would be higher than would have been the case had there not been collusion between the persons concerned;
(b) Conducting or attempting to conduct procurement fraud by the means of fraudulent and corrupt act, unlawful influence, undue interest favour, agreement, bribery or corruption;
(c) Directly, indirectly or attempting to influence in any manner the procurement process to obtain an unfair advantage in the award of a procurement contract;
(d)……
(e) Bid-rigging;
The much, albeit feeble, Mr. Oguaju-Dike of counsel to the 1st Respondent made of this paint is that Lamikanra SAN was not correct in his submission that the plaintiff, in his Statement of Claim had admitted unlawful influences, undue interest, intimidation and or collusion to secure the award of the contract to itself, and that the 1st Respondent, as the plaintiff, was, himself, in gross violation of the Public Procurement Act, 2007, Mr. Oguaju-Dike further submits that this issue does not arrive from any valid ground of appeal. Here, Mr. Oguaju-Dike of counsel to the 1st Respondent completely misconceived grounds 2 and 3 of the appeal No. CA/PH/461/2012 at pages 671 and 672 of the Record, Ground 2 complains that the learned trial Judge erred in law in entering Judgment in favour of the plaintiff who, on his own showing and in the initiating processes, has admitted that it is not a fit and proper person to be awarded the particular contract, the subject of the Suit. The particulars of error contain copious references to acts constituting ex turpi causa non oritur actio.
Section 58(4) of the Public Procurement Act, 2007 criminalizes and prohibits, attempts or act of a contractor, by himself or through its agents etc, that directly or indirectly influence or are intended to influence a procurement process by means of corrupt practices, undue influence and intimidation. Such a “bid-rigging” conduct is not only immoral; it is also illegal. Accordingly, and I agree with Mr. Lamikanra SAN of counsel to the appellant in CA/PH/461/2012 that, on the principle of ex turpi causa non oritur actio, a cause of action founded on what is prohibited by law or statute cannot be a reasonable cause of action. To demonstrate these self destruct conduct of the plaintiff, the 1st Respondent, the Senior Counsel draws the attention of the court to paragraphs 4 and 5 of the Statement of Claim together with other front loaded evidential materials, including the various letters of recommendation written to recommend the plaintiff as the preferred contractor. The rather verbose and noisome letter dated 7th May, 2012 and signed by Obi C. Nwaakor Esq of counsel to the Plaintiff stands out in its intimidatory contents. It states inter alia at page 54 of the Record:
We have it on good authority that the host communities of the project-are getting restive and agitated on account of the disregard of their pleas, preference and recommendation of our client who as their preferred contractor, being an illustrious son of the area – will have the host communities in mind in the execution of the contract but also on the denial of our client of the opportunity as an interested contractor to bid for the project (sic). They have vowed not to allow any other contractor have access to the project site if the wrong meted on (sic) by the NDDC, in excluding our client from the project is not corrected.
This letter addresses to the SGF is nothing short of intimidation and downright blackmail. Unfortunately, it has the imprimatur of a lawyer. When this letter and others are read together with paragraphs 4 and 5 of the Statement of Claim, one cannot but agree with Lamikanra SAN of Counsel to the Appellant in CA/PH/461/2012 in his submissions on ex turpi causa non oritur actio and conduct of the plaintiff which flagrantly violates Section 58(4) of the Public Procurement Act, 2007. By this base conduct, the plaintiff, in my firm view, has not disclosed any reasonable cause of action.
From all I have said under this issue, whether the suit was properly constituted, I hereby resolve the issue in favour of the Appellants, particularly the appellant in CA/PH/461/2012, against the plaintiff/1st Respondent. Consequently, I enter an order striking out the suit in its entirety.
I will take the issues – whether the judgment delivered by the trial court was not perverse, and whether the trial court had not denied the defendants before it fair hearing together, since they are, from the peculiar circumstances of the case, interwoven.
The 2nd Defendant, Hado Nigeria Ltd, the Appellant in CA/PH/460/2012, filed his Statement of Defence on 3rd October, 2012 at 1.45pm. See pages 531 – 532 of the Record. The judgment, at pages 623 – 630 of the Record, was delivered on 4th October, 2012. On the said 4th October, 2012 1st Defendant, the Appellant in CA/PH/461/2012, filed his application for extension of time within which to file his Statement of Defendant at 8.50 a.m. I take judicial notice of the fact that Courts in Nigeria, including the Federal High Court, normally start sitting in open court to discharge their judicial function not earlier than 9.00 O’clock in the morning. Mr. Oguaju-Dike of Counsel to 1st Respondent concedes this. On this I derive, from Section 167(c) of the Evidence Act, 2011, the courage to presume that the Federal High Court, Port Harcourt (Coram: Lambo Akanbi, J.) did not, on 4th October, 2012 start sitting earlier than 9.00 am for its normal business in the open court, having regard to the fact that the usual “common course of business” of law courts was followed in this particular case.
Notwithstanding the subsistence of the Statement of Defence of the 2nd Defendant, Hado Nig. Ltd (appellant in CA/PH/460/2012) filed on 3rd October, 2012 and the motion filed by the 1st Defendant, Appellant in CA/PH/461/2012 on 4th October, 2012 at 8.50 am for extension of time within which to file his Statement of defence, which was prominently exhibited thereto, the learned trial Judge stated thus, albeit automatically, at page 634 – 635 of the Record:
This now takes me to the merit of the application of the learned counsel for the plaintiff for judgment. There is no counter affidavit to that application. I also have no application for any extension of time to file any defence by the defendants. More importantly, the defendants did not file any Statement of Defence to contest the Plaintiff’s Claim as in the Statement of Claim as provided by Order 16 rules 1 and 2 of the Court Rules.
These preposterous statement of facts are, to say the least, very perverse. As I earlier stated the Statement of Defence of the 2nd Defendant was filed at 1.45pm on 3rd October, 2012. The 1st Defendant’s motion for extension of time within which to file his Statement of Defence was filed at 8.50am on 4th October, 2012 before the trial court commenced its sitting for the day at 9.00am on 4th October, 2012. The said processes were pending and extant at the time the judgment was delivered on 4th October, 2012.
The best instance of a perverse decision, conclusion or statement is when there is no evidence to support the decision, conclusion or statement of facts. A reckless statement or decision made in total disregard of empirical facts could also be perverse or spurious. According to Oputa, JSC in ATOLAGBE v. SHORUN (1985) N.W.L.R. (Pt.2) 360; perverse simply means persistent in error, different from what is reasonable required, against the weight of evidence, or where the court shuts its eyes to the obvious, as in the instant case.
The default judgment was erected and/or anchored on this outrageous perversity. It cannot be said to be a product of a proper exercise of judicial discretion. Where it is clear that the purported exercise of discretion is not a result of proper judicial discretion, which of course must be exercised judicially and judiciously, the appellate court is entitled to interfere. See EBBA v. OGODO (1984) 1 SCNLR 372; EMORDI v. KWENTOH (1996) 2 N.W.L.R (Pt.433) 656.
It is clear to me that the trial court had refused to hear the motion filed at 8.50 am on 4th October, 2012 by the 1st Defendant, now the Appellant in the appeal no. CA/PH/461/2012. That motion prays for extension of time within which the 1st Defendant would file his Statement of Defence and an order deeming it as duly filed and served. The trial court also deliberately shuts its eyes to the Statement of Defence filed on 3rd October, 2012 at 1.45 p.m. The default Judgment was predicated on non-existence of these processes. The Appellants, in their separate briefs of argument, have made the point that the trial court had denied them fair hearing as enshrined in Section 36 of the 1999 Constitution. Refusal to hear a subsisting and pending motion before proceeding to judgment was held in DINGYADI v. INEC (No.2) (2010) 18 N.W.L.R. (Pt.1224) 154 as an act tantamounting to flagrant breach of the right of such applicant to fair hearing guaranteed under the Constitution and the essence of audi alteram partem rule of natural justice. In that case I.T. Muhammad JSC adds that-
If a judge were at liberty to decide to ignore any motion or process filed in court it would raise a fundamental issue. The danger inherent therein is that instead of allowing the administration of justice to be done upon a compulsory keel, it may not be left to the tyranny of the arbitrary or selective decision of a particular judge or court as to if, and when, any motion will be considered at all. This Court and any other are enjoined by the Constitution and the Rules of natural justice to observe such rules that ensure fair hearing/trial-.
The notoriety of this principle/rule of law is exemplified by the following cases, just to name a few: NWOSU v. IMO S.E.S.A. (1990) 2 N.W.L.R. (Pt. 135) 688 at 726-727 per Belgore, JSC; CHIEF VIRGILUS ANI v. CHIEF LUKE MAMA NNA (1996) 4 N.W.L.R. (PT. 440) 101 at 119 -120 per Tobi, JCA; EKIYOR v. BOMOR (1997) 9 N.W.L.R. (Pt.519) 1 per Iguh, JSC; BRAWL SHIPPING LTD v. F.I. ONWADIKE CO. LTD (2000) 11 N.W.L.R. (Pt. 678) 387 at 403 per Uwaifo, JSC; MOBIL PRODUCING (NIG) LTD v. MONOKPO (2003) 18 N.W.L.R. (Pt.852) 346 at 412 per Uwaifo, JSC; NEWSWATCH COMMUNICATIONS LTD. v. ALH ALIYU IBRAHIM ATTA (2006) 12 N.W.L.R. (Pt.993) 144 at 168.
Let me surmise that the learned trial judge wrote the Ruling/Judgment without his attention being drawn to the pending processes filed respectively at 1.45 pm on 3rd October, 2012 and 8.50 am on 4th October, 2012 by the Registry of his court. That excuse cannot be used to the prejudice of the appellants, as Defendants before the said trial Judge. Once the litigant has done all that is required of him by law to do to file a process or to commence an action at the Registry and whatever is left to be done remains the internal affair of the court, the litigant cannot be made to suffer for the fault, negligence or carelessness of the Registry staff of the court. See ALAWOLE v. SEMOH (1959) SCNLR 91; WEMABOD ESTATES LTD. v. JOYLAND LTD. (2001) 18 N.W.L.R. (Pt.744) 22.
The summary of all I have been trying to say is that there is merit two appeals – CA/PH/461/2012 and CA/PH/460/2012. The suit against the two appellants, who were defendants at the trial court, was not properly constituted at the time court assumed jurisdiction. The proceedings culminating in the judgment were conducted in a spurious manner. The perversity of the Statement on which the default judgment was erected, to wit: that there was neither Statement of Defence nor application for extension of time within which to file Statement of Defence, when infact there were, renders the entire judgment a nullity.
The two appeals, that is appeal No. CA/PH/460/2012 and appeal No. CA/PH/461/2012 are, each, hereby allowed. The decision of the trial court contained in the Ruling/Judgment delivered in the suit No. FHC/PH/CS/291/2012 on 4th October, 2012 is hereby set aside in its entirety. The suit, not having been properly constituted is hereby struck out. Costs assessed at N100,000.00 are hereby awarded to the appellant in CA/PH/460/2012 against the 1st Respondent therein.

M.L. TSAMIYA, J.C.A.: I have had the advantage of reading in advance the draft of the Judgment just delivered by my learned brother, EJEMBI EKO, J.C.A. I entirely agree with it. For the reasons stated in the said judgment, I too would allow the appeal. I also endorse the orders proposed including the orders as to costs.

MODUPE FASANMI, J.C.A.: I have had the advantage of reading in draft, the judgment of my learned brother Ejembi Eko J.C.A just delivered.
I am in agreement with his reasons and conclusions stated in the said judgment. I also allow the appeals i.e. CA/PH/460/2012 and CA/PH/461/2012.
I abide by the consequential orders contained therein inclusive of costs.
EJEMBI EKO, J.C.A. (Delivering the Leading Judgment): The two appellants in these consolidated appeals were respectively and 2nd and 1st defendants in the suit No. FHC/PH /CS/291/2012 at the Federal High Court, Port Harcourt. The plaintiff in that suit is the 1st Respondent herein in the two consolidated appeals.
The Ruling and the judgment, both contained in one document/instrument, were delivered by the said Federal High Court (Coram: Lambo Akanbi, J.) on the same day. That is 4th October, 2012. The two defendants were aggrieved by the ruling and the judgment. Each of them brought his appeal separately. The appeal of the 2nd defendant. Hado Nigeria Ltd, was filed at 1.00 p.m. of 5th October, 2012. The 1st defendant, on their part, filed their appeal much later at 11.55 am on 8th October, 2012. The two appeals have been consolidated for ease and convenience and were heard on identical Records. For the same ease and convenience I will use the Record in CA/PH/461/2012 – the appeal of Hado Nigeria Ltd.
The consolidated appeals were argued on 22nd April, 2013 on the briefs exchanged by the parties. The 1st Respondent in both appeals did not file his brief in time. In each of the appeals he brought an application on 19th April, 2013 for extension of time within which to file the 1st Respondent’s Brief and an order deeming same as duly filed and served. The appellants, very anxious to avoid further delays, did not oppose the applications, which were each granted as prayed on the 22nd April, 2013. For each appeal the 1st Respondent’s Brief, filed on 19rh April, 2013, was deemed filed and served on the said 22nd April, 2013.
Because of the precedence among counsel and Mr. Oladejo Lamikanra, being a Senior Advocate of Nigeria and the Counsel to the Appellant in the appeal No. CA/PH/461/2012, the said appeal (CA/PH/461/2012, was first argued.
In the 1st Respondent’s Brief of Argument filed on 19th April, 2013 there is a notice of preliminary objection and the submissions thereon contained in paragraphs 2, 3 and 4 at pages 2 – 6 of the said brief. Upon the Counsel to the 1st Respondent, Mr. Dike, moving the preliminary objection; Lamikanra SAN for the appellant protested the competence of the preliminary objection. The contention of the senior counsel is that the preliminary objection, having not been filed giving the Appellant three (3) clear days, was a flagrant violation of Order 10 Rule 1 of the Court of Appeal Rules, 2011. Order 10 Rule 1 provides that a respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of the objection, and shall file such notice together with twenty copies thereof with the registry within the same time. This provision, designed to enhance the right to fair hearing, particularly audi alteram partem, is mandatory. While nothing may be wrong, in law, for the respondent to raise the preliminary objection in the respondent’s brief and argue the same therein, as that has been considered to be economical to all concerned, including the Court; it is mandatory for the respondent to file the preliminary objection as stipulated by Order 10 Rule 1. Apart from the respondent giving “the appellant three clear days notice” of the preliminary objection, he must file the notice of the preliminary objection.

In additionOrder 10 rule 1 enjoins the respondent relying on a preliminary objection to give the appellant not less than three clear days before hearing date. This allows the appellant to prepare adequately for the objection. From all I have been saying this notice of preliminary objection contained in paragraphs 2, 3 and 4 of the 1st Respondent’s Brief is incompetent and it is hereby struck out. The 1st Respondent paid no filing fee therefore, apart from its being filed in flagrant disobedience of Order 10 rule 1 of the Court of Appeals, Rules 2011.
The preliminary objection and the arguments thereon are contained in paragraphs 2 and 3 at pages 5 – 8 of the 1st Respondent’s Brief in the appeal No. CA/PH/460/2012. It has all the features of the incompetent notice of preliminary objection in the appeal No. CA/PH/461/2012. For the same reasons given earlier in respect of the identical Notice of Preliminary Objection in CA/PH/461/2012, which reasoning and conclusions I hereby adopt herein, the Notice of Preliminary Objection in the appeal No. CA/PH/460/2012 contained in paragraphs 2 and 3 at pages 5 – 8 of the 1st Respondent’s Brief filed on 19th April, 2013 but deemed on 22nd April, 2013 is hereby struck out.
In the two appeals (CA/PH/461/2012 and CA/PH/460/2012) the parties exchanged briefs which were duly adopted at the hearing on 22nd April, 2013. The 2nd Respondent in the appeal No. CA/PH/461/2012, Hado Nig. Ltd, did not file any brief. He does not contest the appeal.
In the appeal No. CA/PH/460/2012 the 2nd Respondent, Niger Delta Development commission (NDDC), also did not file any brief in the appeal. He does not contest the appeal.
In the appeal No. CA/PH/461/2012 Lamikanra SAN of counsel for the Appellant merely adopted, without adumbration, the Appellant’s brief filed on 14th January, 2013 as his argument in the appeal and prayed that the appeal be allowed and the consequential reliefs granted. Mr. Oguaju-Dike of counsel to the 1st Respondent in this appeal, Chrisbrown International Ltd, similarly adopted, without adumbration, the 1st Respondent’s Brief filed on 19th April, 2013 but deemed filed on 22nd April, 2013 and prayed that the appeal, on the two issues he had formulated, be dismissed
In the appeal No. CA/PH /460/2012 the Appellant’s Brief was filed on 15th January 2013. Mr. Ewule of counsel to the Appellant adopted this brief as the argument of the appellant, and without further adumbration, and urged that the appeal be allowed and all the consequential reliefs granted’ For the 1st Respondent, Chrisbrown International Ltd, Mr. Oguaju-Dike of counsel, adopted the 1st Respondent’s Brief filed on 19th April, 2013, but deemed filed on 22nd April, 2013 and urged that the appeal be dismissed
I have read the four briefs in the two appeals, including raised therein and argued. In my view three main issues stand out clearly for determination of the two appeals. I acknowledge that each appeal, in a consolidated appeal, retains its separate identity and that the consolidation is only for purposes of convenience. It is for the same purpose that I will treat the issues and make findings on them of each appeal.
The three germane issues in the consolidated appeals are:
1. Whether the suit, from the writ of Summons and endorsements thereto, was properly constituted for the Court’s jurisdiction to be properly invoked?
(Ground 1 in appeal no. CA/PH/460/2012;)
(Grounds 2 & 3 appeal no.  CA/PH/461/2012)
2. Whether the final decision in the suit by the trial court was not perverse.
(Ground 4 in appeal no. CA/PH/460/2012)
(Grounds 7 in appeal no. CA/PH/461/2012)
3. Whether, in the entire circumstances of the case and the proceedings, the trial court had not denied the Defendants/Appellants fair hearing?
(Ground 3 in appeal no. CA/PH/460/2012)
(Grounds 6 in appeal no.  CA/PH/461/2012)
ISSUE 1
My reading of the briefs of the appellants in both appeals suggests that the gravamen of the complaint that the suit, at the time the writ was taken out, was not properly constituted as regards the necessary parties thereto, is that the plaintiff, the 1st Responded in both appeals, had no locus standi to commence the suit and that the statement of claim does not disclose any reasonable cause of action against the named defendants, who are now the Appellants.
Mr. Ewule of counsel to the Appellant in appeal No. CA/PH/460/2012 submits, under issue 3, that the averments in the statement of claim must be meticulously examined to see if any reasonable cause of action has been disclosed such as could vest in the plaintiff the right and standing to maintain the action against the named defendants in the suit, and that “the Statement of Claim must declare in clear terms the rights and obligations or interest of the plaintiff which has been or about to be violated”. It is only when a plaintiff discloses these that he can be said to have his locus standi in the action. Counsel cited a number of authorities, including A.G. LAGOS STATE v. EKO HOTELS LTD (2009) 18 N.W.L.R. (Pt. 1017) 378 at 450 F. H; A.G., ANAMBRA STATE v. A. G., FEDERATION (2007) 12 N.W.L.R. (Pt. 1047) 4; OJUKWU v. GOV. LAGOS STATE (1985) 2 N.W.L.R. (Pt.10) 806 etc.
For the Appellant in appeal no. CA/PH/461/2012 Lamikanra SAN submits that on the principle of ex turpi causa non oritur actio, Latinism for no action can arise from an immoral or illegal consideration, the plaintiff had no reasonable cause of action, and that the 1st Respondent, as the plaintiff, had by the averments in his Statement of Claim confessed to, or admitted, the sundry base causes as the basis for bringing the suit; accordingly no reasonable cause in law, therefore, vests in the plaintiff for this action. The Senior Counsel particularly under issues 2 and 3 formulated in the Appellant’s Brief in appeal no. CA/PH/461/2012, submits further that the proper and necessary defendants have not been joined. He points out, specifically in respect of Reliefs 1 and 5 claimed by the plaintiff, that the necessary parties, who are not before the trial court, are Secretary to the Government of the Federation (SGF) and the Bureau for Public Procurement (BPP) who are the authors of the No OBJECTION Letter. If one accepts this argument it means the action is not properly constituted since the necessary parties have not been joined, and the named defendants are mere nominal parties. What I understand the Senior Counsel to be saying is simply that the averments in the Statement of Claim having not disclosed reasonable cause against the named defendants, now Appellants, the action is merely frivolous and vexatious particularly that the authors of the NO OBJECTION Letter, forming the grouse of the plaintiff for the suit, are not parties to the suit. The plaintiff, I must add, has the liberty in the choice of the defendant.  The Court will not go out of its way to nominate a defendant for the plaintiff’s suit. For avoidance of any impression that the court has any interest in the suit, it will no do the function of the plaintiff.
Even upon my painstaking reading of the 1st Respondent Brief in both appeals I have not been able to see where he made serious effort to contest the arguments of the Appellants on whether the suit was properly constituted either as to his disclosing his locus standi and reasonable cause of action against the named defendants, or that ex facie the suit had been found on an immoral or illegal cause.
The reliefs clamed by the 1st Respondent, as the plaintiff, are at page 11 of the Record as follows:
1. Declaration that the certificate of NO OBJECTION dated 30/3/2012 in favour of the 2nd Defendant HADO NIG. LTD. for the construction of Port Harcourt/Owerri Road Junction Avu Ado Palm Etekwuru Road violated S.6(1) of the Public Procurement Act, 2007 an therefore void.
2. Declaration that the plaintiff is the one entitled to award and execution of the contract for the construction of the road.
3. Declaration that the exclusion of the plaintiff from the bid and tender for the contract for the road is wrongful, and abuse of due process and violated S.6(1) of the Public Procurement Act, 2007.
4. An order restraining the Defendant, her servants, agents and primes from awarding, executing, mobilizing to site funding the dualisation of Port Harcourt/Owerri road junction Avu Ada Palm Etekwuru Road Phase 1 located at Avue Etekwuru Oweri/Ohaji Egbeme, Imo State pending the determination of this suit.
5. An order setting aside the Notice of NO OBJECTION dated 30/3/2012 issued without due process and contrary to S.6(1) of the Public Procurement Act, 2007 or in the alternative, substituting the plaintiff for Hado Nig. Ltd. as the contractor for the construction of the aforesaid road.
6. The sum of N5,000,000,000.00 (Five Billion Naira) compensation.
The cursory glance at these reliefs would suggest that the substratum of the plaintiffs’ grouse of grievance is the Certificate of NO OBJECTION issued in favour of the 2nd Defendant, appellant in CA/PH/461/2012, allegedly in violation of Section 6(1) of the Public Procurement Act, 2007. To sustain these reliefs against the named defendants the plaintiff is enjoined to disclose a reasonable cause of action. It is settled, from the authorities that a cause of action means the factual situation stated by the plaintiff, which if sustained, entitles him to the remedy against the defendant. It is that set of facts which gives the plaintiff the right to sue the defendant. It comprises every fact which is the material to be proved to enable the plaintiff to succeed. See EGBE v. ADEFARASIN (1985) 3 SC 214; THOMAS v. OLUFOSOYE (1986) 1 N.W.L.R. (Pt.8) 669. The reasonable cause of action is that cause of action which, in law, has some chances of success and which sets out the legal rights of the plaintiff and the obligations of the defendant. See RINCO CONST. CO. v. VEEPEE IND. LTD. (2005) 9 N.W.L.R. (Pt.929) 85. Since in law, no action can arise from an immoral or illegal cause, no cause of action founded on such immoral or illegal cause can be a reasonable cause of action. I agree with Mr. Lamikanra SAN on this.
Before I go to analyzing the pleaded facts I will quickly dispose of the alternative remedy in the relief 5 to wit: an order “substituting the plaintiff for Hado Nig. Ltd. as the contractor for the construction of the aforesaid road. As submitted by the Senior Counsel, Mr. Lamikanra, on the authority of EGUASA DAVID ODIASE v. AUCHI POLYTECHNIC, AUCHI (1998) 4 N.W.L.R. (Pt. 546) 477 at 492 that “the courts do not make contracts for the contracting parties. No. It is a matter purely between them sese ipse”, on this principle of freedom of contract, founded on consensus ad idem the trial court was not in any legal position to have made that order. Accordingly, that alternative remedy deserves to be, and is hereby, struck out, as it is ultra vires the court to make the order.
Relief No. 4 is interlocutory in nature which should not have been made either on the writ on the endorsement on the writ. When this relief is read together with paragraphs 11, 12 and 13 of the Statement of Claim the inescapable impression one gets thereby is that the cause of action is yet to ripen, and that the action is purely pre-emptive. The plaintiff pleads no constituent elements of a valid contract, which include offer and acceptance. All he had pleaded are his expression of his interest in the road construction contract. No offer was made to him and none has been accepted. The material consideration to sustain the contract, if at all, was not pleaded. I do not see on what basis, therefore, he seeks, as he does in relief no, 2, the declaration that he is the one entitled to the award and execution of the contract for the construction of the road. This phantom also seems to be the basis of the Claim for N5,000,000,000.00 (Five Billion) Naira as compensation.
Assuming this was an action for breach of contract – a contract of service; the plaintiff’s remedy lies only in damages for breach of contract. It should have been an action in contract, not in administrative law. Where there is a total repudiation of contractual obligation the only remedy is an action for breach of contract and not for the party complaining of the breach to insist that the contract subsists. See COMMISSIONER FOR WORKS, BENUE STATE v. DEVCON LTD. (1988) 3 N.W.L.R. (Pt.83) 407 at 422 per Karibi-Whyte, JSC.
Paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 20, 21 and 22 of the Statement of Claim, at pages 3 – 6 of the Record, are quite germane to the entire claims. They are herein below reproduced, viz:
4. The Plaintiff entrenched interest in the AVU Ada Palm Etekwuru Road stems from the fact that the Managing Director and Chief Executive Officer of the Plaintiff, Mr. Chris Amadioha is an indigene of the host community and had prior to the inclusion of the road project in the NDDC budget, with the consent, permission and approval of the host communities and at their behest designed the AVU Ada Palm Etekwuru Road project and forwarded the design documents to NDDC through Distinguished Senator Hope Uzodinma, representing Imo West Senatorial District under the project falls for implementation/addition to their projects.
5. Further to the design, carried out be the Plaintiff in respect of the AVU Ada Palm Etekwuru Road, upon the inclusion of the road project in the NDDC budget of 2011, all the major stakeholders within the project area/host communities particularly the Traditional Rules, including ex-militants within that area wrote to the Secretary to the Government of the Federation recommending our client for the project, not just because of the quality services for which the Plaintiff is known for but more particularly for effective management of host Community relationship in executing the project, being a volatile Niger Delta Area. Copies of the said letter are hereby pleaded and shall be relied on at the trial of this suit. Notice is given to the Defendants to produce the original in their possession.
6. The SGE with a letter dated 22/3/2012 requested the BPP to issue certificate of No Objection to the 1st Defendant in favour of the 2nd Defendant in respect of the AVU Ada Palm Etekwuru Road subject matter of this suit without 2nd Defendant undergoing proper bidding for the contract.
7. The Bureau of Public Procurement replied the SGF on 29/3/2012 and requested the 1st Defendant to furnish her with the costs of each of the projects for which the certificate was sought to enable her issue the certificate copy of the letter is hereby pleaded and shall be replied on at the trial of this suit. Notice is given to the Defendants to produce the original in their possession.
8. The Secretary of Government of the Federation received the letter on 30/3/2012 and endorsed same to the Managing Director of the 1st defendant on 2/4/2012.
9. Curiously the Bureau of Public Procurement without waiting for or receiving from 1st defendant the costs of the projects purportedly requested issued the notice of No Objection dated the same 30/3/2012 copy of which is hereby pleaded and shall be relied on at the trial of this suit. Notice is given to the defendants to produce the original in their possession.
10. The certificate of NO OBJECTION dated 30/3/2012 did not follow due process and did not comply with Public Procurement Act 2007.
11. Unless the certificate of No Objection dated 30/3/2012 is set aside the 1st Defendant will go ahead to award the contract to the 2nd Defendant in violation of due process and against the interest of the Plaintiff.
12. The Plaintiff will suffer irreparable loss if the 1st Defendant acts on the certificate of No Objection dated 30/3/12012 and award the contract to 2nd Defendant.
13. It will be better to stop the 1st defendant from awarding the contract until due process to observed or this suit is determined either way.
15. The Plaintiff being an indigenous contractor of the area and on the understanding with the host communities and other stake holders made it possible for the project to be entered into the 2011 budget which cost her several millions of Naira.
20. When the Plaintiff observed the attempt to obtain certificate of No Objection in favour of the 2nd Defendant, she wrote to the defendant, the BPP and office of the SGF to point out the anomalies. Copies of the said letters are hereto attached and marked Exhibit 11 – 14 respectively.
21. The Plaintiff avers that after receiving her letter of protest, the 1st Defendant made efforts to further violate the law by producing a certificate of No Objection in favour of 2nd Defendant dated 30/3/2012 which copy is hereto attached and marked Exhibit BPP2.
22. The Plaintiff avers such Certificate of No Objection precedes the award of the contract of any project after observing due process.
The alleged illegal issuance of the Certificate of NO OBJECTION to Hado Nig. Ltd., by the Bureau of Public Procurement at the instance of the Secretary of the Government of the Federation (SGF) is the pivot on which the suit rests majorly. These authors of the said Certificate of NO OBJECTION are not parties in the suit. On this particularly the submissions of Mr. Lamikanra, SAN are unassailable. And of course, the 1st Respondent, as the plaintiff through his Counsel offered no useful answer. As submitted by Lamikanra SAN, correctly in my view, and on the sound authority of HENRY O. AWONIYI v. THE REGISTERED TRUSTEES OF THE ROSICRUCIAN ORDER, AMORC (NIG) (2000) 10 N.W.L.R. (Pt.676) 522 at 540 & 551; PEOPLES DEMOCRATIC PARTY (PDP) v. ALL PEOPLES PARTY (APP) (1999) 3 N.W.L.R. (Pt.594) 238 at 244; FAYEMI v. ONI (2009) 7 N.W.L.R. (Pt.1140) 223 at 254 – 256, the law is settled that no court of law will make an order, or give judgment, affecting the interest or right of a person or body that is not a party to the case and who was never heard in the matter. There can be no cleaner infringement of the Constitutional protection of fair hearing in Section 36 of the 1999 Constitution, particularly the right of audi alteram partem, than this suit has invited us to do against the SGF and the Bureau of Public Procurement against whom weighty allegation of infraction of Section 6(1) of the Public Procurement Act, 2007 has been copiously made. Without the SGF and the Bureau of Public Procurement the suit, particularly relies 1, 3 and 5 thereof, is a more empty shell, and the named defendants appear to be mere nominal parties.
The presence in the suit of necessary parties thereto is the sine qua non for a properly constituted Suit. Karibi-Whyte JSC had put it succinctly IN RE: MOGAJI v. MOGAJI (1986) N.W.L.R. (Pt.19) 759, that the “cardinal rule for the administration of justice is that principle conveniently expressed in Latin: interest rei publicace ut sit finis litium – the termination of litigation is in the public interest. Hence, where issues between the parties involve third parties whose interest are affected and the omission of which was bound to result in further litigation, such parties are those whose presence will be necessary for the effectual and complete adjudication before the Court and their presence as parties is a sine qua non for purpose”. Since this instant suit is liable to be defeated by the non-joinder of these third parties, the SGF and the Bureau of Public Procurement, it is my candid view that the suit before the Federal High Court, Port Harcourt was not properly constituted. It ought to have been struck out consequentially.
Now, I come back to the issue of ex turpi causa non oritur actio, which Mr. Lamikanra SAN of Counsel to the appellant in CA/PH/461/2012 had argued extensively. Counsel relies of Section 58(4)(a), (b), (c) & (e) of the Public Procurement Act, 2007 for this submission. The provisions are as follows:-
58.(4) “The following shall also constitute offences under this act-
(a) Entering or attempting to enter into a collusive agreement, whether enforceable of not, with a supplier, contractor or consultant where the prices quoted in their respective tenders, proposals or quotations are or would be higher than would have been the case had there not been collusion between the persons concerned;
(b) Conducting or attempting to conduct procurement fraud by the means of fraudulent and corrupt act, unlawful influence, undue interest favour, agreement, bribery or corruption;
(c) Directly, indirectly or attempting to influence in any manner the procurement process to obtain an unfair advantage in the award of a procurement contract;
(d)……
(e) Bid-rigging;
The much, albeit feeble, Mr. Oguaju-Dike of counsel to the 1st Respondent made of this paint is that Lamikanra SAN was not correct in his submission that the plaintiff, in his Statement of Claim had admitted unlawful influences, undue interest, intimidation and or collusion to secure the award of the contract to itself, and that the 1st Respondent, as the plaintiff, was, himself, in gross violation of the Public Procurement Act, 2007, Mr. Oguaju-Dike further submits that this issue does not arrive from any valid ground of appeal. Here, Mr. Oguaju-Dike of counsel to the 1st Respondent completely misconceived grounds 2 and 3 of the appeal No. CA/PH/461/2012 at pages 671 and 672 of the Record, Ground 2 complains that the learned trial Judge erred in law in entering Judgment in favour of the plaintiff who, on his own showing and in the initiating processes, has admitted that it is not a fit and proper person to be awarded the particular contract, the subject of the Suit. The particulars of error contain copious references to acts constituting ex turpi causa non oritur actio.
Section 58(4) of the Public Procurement Act, 2007 criminalizes and prohibits, attempts or act of a contractor, by himself or through its agents etc, that directly or indirectly influence or are intended to influence a procurement process by means of corrupt practices, undue influence and intimidation. Such a “bid-rigging” conduct is not only immoral; it is also illegal. Accordingly, and I agree with Mr. Lamikanra SAN of counsel to the appellant in CA/PH/461/2012 that, on the principle of ex turpi causa non oritur actio, a cause of action founded on what is prohibited by law or statute cannot be a reasonable cause of action. To demonstrate these self destruct conduct of the plaintiff, the 1st Respondent, the Senior Counsel draws the attention of the court to paragraphs 4 and 5 of the Statement of Claim together with other front loaded evidential materials, including the various letters of recommendation written to recommend the plaintiff as the preferred contractor. The rather verbose and noisome letter dated 7th May, 2012 and signed by Obi C. Nwaakor Esq of counsel to the Plaintiff stands out in its intimidatory contents. It states inter alia at page 54 of the Record:
We have it on good authority that the host communities of the project-are getting restive and agitated on account of the disregard of their pleas, preference and recommendation of our client who as their preferred contractor, being an illustrious son of the area – will have the host communities in mind in the execution of the contract but also on the denial of our client of the opportunity as an interested contractor to bid for the project (sic). They have vowed not to allow any other contractor have access to the project site if the wrong meted on (sic) by the NDDC, in excluding our client from the project is not corrected.
This letter addresses to the SGF is nothing short of intimidation and downright blackmail. Unfortunately, it has the imprimatur of a lawyer. When this letter and others are read together with paragraphs 4 and 5 of the Statement of Claim, one cannot but agree with Lamikanra SAN of Counsel to the Appellant in CA/PH/461/2012 in his submissions on ex turpi causa non oritur actio and conduct of the plaintiff which flagrantly violates Section 58(4) of the Public Procurement Act, 2007. By this base conduct, the plaintiff, in my firm view, has not disclosed any reasonable cause of action.
From all I have said under this issue, whether the suit was properly constituted, I hereby resolve the issue in favour of the Appellants, particularly the appellant in CA/PH/461/2012, against the plaintiff/1st Respondent. Consequently, I enter an order striking out the suit in its entirety.
I will take the issues – whether the judgment delivered by the trial court was not perverse, and whether the trial court had not denied the defendants before it fair hearing together, since they are, from the peculiar circumstances of the case, interwoven.
The 2nd Defendant, Hado Nigeria Ltd, the Appellant in CA/PH/460/2012, filed his Statement of Defence on 3rd October, 2012 at 1.45pm. See pages 531 – 532 of the Record. The judgment, at pages 623 – 630 of the Record, was delivered on 4th October, 2012. On the said 4th October, 2012 1st Defendant, the Appellant in CA/PH/461/2012, filed his application for extension of time within which to file his Statement of Defendant at 8.50 a.m. I take judicial notice of the fact that Courts in Nigeria, including the Federal High Court, normally start sitting in open court to discharge their judicial function not earlier than 9.00 O’clock in the morning. Mr. Oguaju-Dike of Counsel to 1st Respondent concedes this. On this I derive, from Section 167(c) of the Evidence Act, 2011, the courage to presume that the Federal High Court, Port Harcourt (Coram: Lambo Akanbi, J.) did not, on 4th October, 2012 start sitting earlier than 9.00 am for its normal business in the open court, having regard to the fact that the usual “common course of business” of law courts was followed in this particular case.
Notwithstanding the subsistence of the Statement of Defence of the 2nd Defendant, Hado Nig. Ltd (appellant in CA/PH/460/2012) filed on 3rd October, 2012 and the motion filed by the 1st Defendant, Appellant in CA/PH/461/2012 on 4th October, 2012 at 8.50 am for extension of time within which to file his Statement of defence, which was prominently exhibited thereto, the learned trial Judge stated thus, albeit automatically, at page 634 – 635 of the Record:
This now takes me to the merit of the application of the learned counsel for the plaintiff for judgment. There is no counter affidavit to that application. I also have no application for any extension of time to file any defence by the defendants. More importantly, the defendants did not file any Statement of Defence to contest the Plaintiff’s Claim as in the Statement of Claim as provided by Order 16 rules 1 and 2 of the Court Rules.
These preposterous statement of facts are, to say the least, very perverse. As I earlier stated the Statement of Defence of the 2nd Defendant was filed at 1.45pm on 3rd October, 2012. The 1st Defendant’s motion for extension of time within which to file his Statement of Defence was filed at 8.50am on 4th October, 2012 before the trial court commenced its sitting for the day at 9.00am on 4th October, 2012. The said processes were pending and extant at the time the judgment was delivered on 4th October, 2012.
The best instance of a perverse decision, conclusion or statement is when there is no evidence to support the decision, conclusion or statement of facts. A reckless statement or decision made in total disregard of empirical facts could also be perverse or spurious. According to Oputa, JSC in ATOLAGBE v. SHORUN (1985) N.W.L.R. (Pt.2) 360; perverse simply means persistent in error, different from what is reasonable required, against the weight of evidence, or where the court shuts its eyes to the obvious, as in the instant case.
The default judgment was erected and/or anchored on this outrageous perversity. It cannot be said to be a product of a proper exercise of judicial discretion. Where it is clear that the purported exercise of discretion is not a result of proper judicial discretion, which of course must be exercised judicially and judiciously, the appellate court is entitled to interfere. See EBBA v. OGODO (1984) 1 SCNLR 372; EMORDI v. KWENTOH (1996) 2 N.W.L.R (Pt.433) 656.
It is clear to me that the trial court had refused to hear the motion filed at 8.50 am on 4th October, 2012 by the 1st Defendant, now the Appellant in the appeal no. CA/PH/461/2012. That motion prays for extension of time within which the 1st Defendant would file his Statement of Defence and an order deeming it as duly filed and served. The trial court also deliberately shuts its eyes to the Statement of Defence filed on 3rd October, 2012 at 1.45 p.m. The default Judgment was predicated on non-existence of these processes. The Appellants, in their separate briefs of argument, have made the point that the trial court had denied them fair hearing as enshrined in Section 36 of the 1999 Constitution. Refusal to hear a subsisting and pending motion before proceeding to judgment was held in DINGYADI v. INEC (No.2) (2010) 18 N.W.L.R. (Pt.1224) 154 as an act tantamounting to flagrant breach of the right of such applicant to fair hearing guaranteed under the Constitution and the essence of audi alteram partem rule of natural justice. In that case I.T. Muhammad JSC adds that-
If a judge were at liberty to decide to ignore any motion or process filed in court it would raise a fundamental issue. The danger inherent therein is that instead of allowing the administration of justice to be done upon a compulsory keel, it may not be left to the tyranny of the arbitrary or selective decision of a particular judge or court as to if, and when, any motion will be considered at all. This Court and any other are enjoined by the Constitution and the Rules of natural justice to observe such rules that ensure fair hearing/trial-.
The notoriety of this principle/rule of law is exemplified by the following cases, just to name a few: NWOSU v. IMO S.E.S.A. (1990) 2 N.W.L.R. (Pt. 135) 688 at 726-727 per Belgore, JSC; CHIEF VIRGILUS ANI v. CHIEF LUKE MAMA NNA (1996) 4 N.W.L.R. (PT. 440) 101 at 119 -120 per Tobi, JCA; EKIYOR v. BOMOR (1997) 9 N.W.L.R. (Pt.519) 1 per Iguh, JSC; BRAWL SHIPPING LTD v. F.I. ONWADIKE CO. LTD (2000) 11 N.W.L.R. (Pt. 678) 387 at 403 per Uwaifo, JSC; MOBIL PRODUCING (NIG) LTD v. MONOKPO (2003) 18 N.W.L.R. (Pt.852) 346 at 412 per Uwaifo, JSC; NEWSWATCH COMMUNICATIONS LTD. v. ALH ALIYU IBRAHIM ATTA (2006) 12 N.W.L.R. (Pt.993) 144 at 168.
Let me surmise that the learned trial judge wrote the Ruling/Judgment without his attention being drawn to the pending processes filed respectively at 1.45 pm on 3rd October, 2012 and 8.50 am on 4th October, 2012 by the Registry of his court. That excuse cannot be used to the prejudice of the appellants, as Defendants before the said trial Judge. Once the litigant has done all that is required of him by law to do to file a process or to commence an action at the Registry and whatever is left to be done remains the internal affair of the court, the litigant cannot be made to suffer for the fault, negligence or carelessness of the Registry staff of the court. See ALAWOLE v. SEMOH (1959) SCNLR 91; WEMABOD ESTATES LTD. v. JOYLAND LTD. (2001) 18 N.W.L.R. (Pt.744) 22.
The summary of all I have been trying to say is that there is merit two appeals – CA/PH/461/2012 and CA/PH/460/2012. The suit against the two appellants, who were defendants at the trial court, was not properly constituted at the time court assumed jurisdiction. The proceedings culminating in the judgment were conducted in a spurious manner. The perversity of the Statement on which the default judgment was erected, to wit: that there was neither Statement of Defence nor application for extension of time within which to file Statement of Defence, when infact there were, renders the entire judgment a nullity.
The two appeals, that is appeal No. CA/PH/460/2012 and appeal No. CA/PH/461/2012 are, each, hereby allowed. The decision of the trial court contained in the Ruling/Judgment delivered in the suit No. FHC/PH/CS/291/2012 on 4th October, 2012 is hereby set aside in its entirety. The suit, not having been properly constituted is hereby struck out. Costs assessed at N100,000.00 are hereby awarded to the appellant in CA/PH/460/2012 against the 1st Respondent therein.