Max-clean Becal Ventures Ltd & Anor V. Abuja Environmental Protection Board (2016)

MOHAMMED MUSTAPHA, J.C.A. 

 This is an appeal against the judgment of the High Court of FCT in suit No.CV/489/2013. Coram Honourable Justice J.O. Okeke, dismissing the plaintiff?s claim, as contained in the Amended Statement of Claim at page 31-37 of the record or appeal.

The appeal to this Court is on the Notice of Appeal filed on the 1st December, 2014 on following grounds, without the particulars:
GROUND ONE:
The learned trial judge erred in law and facts when he applied the exemption clause in Exhibit “A” to dismiss the case of the Appellant.
GROUND TWO:
The trial judge erred in law when he suo-moto raised the issue of the exemption clause and based his judgment on it without calling the counsel to address him on it.
GROUND THREE:
The learned trial judge erred in law by not considering the provisions of the Public Procurement Act in dismissing the Appellants case.
GROUND FOUR:
The judgment of the learned trial judge is against the weight of evidence.

?From these grounds of appeal the following issues were formulated for the appellant:
?1. Whether the learned

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trial judge was right to apply the exemption clause in Exhibit A to dismiss the case of the appellant, the appellants having successfully passed the tendering process and won the bid.
2. Whether the learned trial judge was right to raise the issue of exemption clauses suo moto and base his judgment on it when the exemption clause was not raised by the parties in their pleadings and counsel were not called upon to address the Court on it.
3. Whether the exemption clause in Exhibit A is not a violation of the Public Procurement Act, 2007.
4. Whether the learned trial judge was right in dismissing the suit of the appellants having found in his judgment that there was a valid contract between the parties and contract was not frustrated.

?The respondents adopted the issues as formulated for the appellants; this Court will resolve this appeal on the same issues, but with a little modification for the Purpose of brevity and clarity.
Issue One:
Whether the Court was right in relying on the exemption Clause in Exhibit A to dismiss the plaintiffs/appellants’ claim.

?It is submitted for the appellants that having already won the bid the

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exemption clause does not apply to the appellants, because it only applies to those whose bid was not accepted.

While referring to MTN COMMUNICATIONS LTD V. AMADI (2013) All FWLR part 670 page 1336 and Sections 16 (17) and 28 of the Public Procurement Act, 2007 learned counsel further submitted that for it to be effective an exclusion clause has to be incorporated in the agreement; its wordings must cover the liability in question and it must not be prohibited by statute.

In response it is submitted for the respondent that Exhibit A is merely an advertisement for tender to bid, and it spelt out the terms and conditions that will eventually govern the relationship of the parties, and the appellants responded to the tender without complaining about any of the conditions therein.

That parties are bound by their agreements, the Court only enforces express provisions of an agreement between the parties, learned counsel referred the Court to N.S.C NIG. LTD V. INNIS PALMER (1992) 1 NWLR part 218 at 432.

?Exhibit A at page 49 of the record of appeal is clearly an advertisement for inviting bids from waste collection companies; it is a document which

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