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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has its origins from the respondent, but was tendered and admitted by the appellants at the trial, whereupon it was admitted as Exhibit A, because the appellants submitted their bid relying on same.
The said document is an agreement between the appellants and the respondent, but it clearly exonerated the respondent from liability of any kind in the relationship between the two by stating ?…nor shall it entitle the renderer to make any claim whatsoever and or seek any indemnity from FCT/AEPB by virtue of such tender having responded to the advert.?
It is clear also that when the appellants made their bid they did not seek to vary the invitation, neither did they make a counter offer to suggest any disagreement with Exhibit A, and so they cannot be heard to now complain, it is with this scenario in mind that the Supreme Court held in BILANTE INTERNATIONAL LTD V. NDIC (2011) LPELR-781-SC that:
“An offer must be unconditionally and unqualifiedly accepted. An offer is impliedly rejected if the offeree instead of accepting the original offer makes a counter offer which varies the terms proposed by the offeror. A counter offer is a
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statement by the offeree which has the legal effect of rejecting the offer and of proposing a new offer to the offeror. It puts an end to the previous offer of the initial offeror. The legal effect of a counter-offer is to terminate the original offer so that it cannot subsequently be accepted by the offeree.”
Section 16 (17) Public Procurement Act, 2007 relied upon by learned counsel for the appellants’ states for the avoidance of doubt that:
“A contract shall be awarded to the lowest evaluated responsive bid from the bidders substantially responsive to the bid solicitations”.
Furthermore, Section 28 of the Public Procurement Act, 2007 reads inter alia:
“A procuring entity may: a) reject all bids at any time prior to the acceptance of a bid without incurring thereby any liability to the bidder.”
These Sections of the law sought to be relied upon by learned counsel to the appellants clearly exonerates the respondent from any form of liability for rejecting or accepting a bid.
?In civil matters, parties are bound by their agreement. The Courts generally do not interfere in the manner that parties choose to do business with each
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other, as long as it is not criminal. When contracts are voluntarily entered into by parties, they become binding on them based on the terms they have set out for themselves. It is trite that where there is a valid contract agreement, parties must be held to be bound by the agreement and its terms and conditions. See ENEMCHUKWU V. OKOYE & ANOR (2016) LPELR-40027-CA. Thus the only function of the Court is to interpret the agreement in enforceable terms without more: See NATIONAL SALT CO. OF NIGERIA LTD. v. MRS. M.J. INNIS-PALMER (1992) 1 NWLR (pt. 218) 422 at 426.
The trial Court was right therefore as it did, in relying on the exemption clause in Exhibit A to dismiss the plaintiffs/appellants claims, as the only document in existence determining the relationship as at that time; accordingly this issue is resolved in favour of the respondent, against the appellant.
Issue Two:
Whether the trial Court raised the issue of exemption suo Moto and relied on it without calling on counsel for address on same.
?It is submitted for the appellants that none of the parties raised or pleaded the issue of exemption clause, but was only raised by the
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trial Court when it dismissed the case of the appellants on that basis, without giving counsel the opportunity of addressing the Court, learned counsel referred the Court to EZEONWU V. ONYECHI (1996) 3 NWLR part 438 at 507, PASCUTTO V. ADECENTRO (1997) 11 NWLR part 529 at 473 and ADENIRAN V. ALAO (2001) 18 NWLR part 745 page 265.
It is submitted in response that the issue of exemption clause is part of the evidence before the Court, and it is consistent for a Court to make findings from documents presented before it, because the issue is contained in Exhibit A tendered by the appellants and admitted by the trial Court.
That the trial Court simply evaluated evidence before it without necessarily calling for address on same, learned counsel referred the Court to MUHAMMED V. ABDULKADIR (2008) NWLR part 1076 at 156, NIGERIAN ARMY V. AMINU-KANO (2010) 5 NWLR part 1188 at 457.
?A Court of law is generally speaking not allowed to raise an issue or issues Suo Moto and rely on same to decide the case in question, one way or the other, without inviting the parties to be heard, that, in fact, would be a fundamental flaw and a mistrial in breach of the rule
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of fair hearing. There is a plethora of decided cases on this, see FULANI & ANOR. V. IDI [1990] 5 NWLR [part 150] 311; UGO V. OBIEKWE [1989] 1 NWLR [part 99] 566.
Having said that it does not appear to this Court that the trial Court raised the issue of exemption clause Suo Moto, without giving counsel the opportunity to address it; if it did, then it would have been a mistrial of epic proportions.
Available record speaks differently in this case, it indeed shows that the appellants actually pleaded the issue of Exhibit A, at paragraph 4 of the plaintiffs/appellants’ amended statement of claim at page 31 of the record of appeal.
That being so, it is inaccurate, to say the least, to say that the trial Court raised the issue of exemption suo Moto, and much worse to say that counsel were not given the opportunity of addressing the Court on the issue.
In the circumstances therefore the case of EZEONWU V. ONYECHI supra relied upon by learned counsel to the appellant does not appear to apply to the case at hand, not least because the issue of exemption was pleaded through Exhibit A; and the trial Court does not necessarily have to call counsel
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to address it on an issue already pleaded, and admitted in evidence.
It is important to have recourse to the findings of the trial Court in order to conually appreciate the trial Court’s findings; at page 236 of the record, it stated:
“…I have taken a closer look at and made examination of Exhibit A which plaintiffs responded to and which gave rise to this action. It is observed an exclusion clause was inserted therein with respect to claims arising from responding to the advertisement by bidders or contractors…”
After quoting the relevant parts of Exhibit A extensively it went on to hold: ?….Exhibit A being the defendants first representation to the plaintiffs and which they responded to vide all the steps they took is an essential part of the contract which must be reckoned with in determining whether or not the defendant is liable to be indemnified for breach of contract in the circumstances…?
“being so guided, the plaintiffs having entered into the contract with the defendant by responding to Exhibit A which contains the above clause which clearly bars or prohibits them from making any claims whatsoever or
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seeking indemnity from the defendant on account of their responding to the advert are bound by the clause and cannot bring the claims in the instant suit even in the circumstances it may not be said the contract was frustrated. The duty of this Court is to interpret the contract of the parties…?
The trial Court simply scrutinized and evaluated evidence before it, and the law is clear that documentary evidence when made available lends credence to oral evidence of a witness, see OSHIOWELE v. IGHODARO (2013) LPELR-20291- CA.
Exhibit A like any document speaks for itself, and it is for this reason that the trial Court had to rightly examine and evaluate it as a whole, it is for the same reason that the Supreme Court held per Tobi JSC that:
“I am in grave difficulty to agree with the submission of learned counsel for the appellant. It is the law that for the purposes of obtaining a balanced picture in documentary evidence the entire documents must be interpreted as a whole and not in parts or pockets convenient to a party. In other words, a party cannot pick and choose extract from a document that is convenient to his case. That will be
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tantamount to shutting out the truth searching process in the matter before the Court.” FELICIA AKINBISADE V. STATE (2006) 17 NWLR part 1007 page 204.
This Court had cause to observe in the case of OLURUNKULE V. ADISUN (2012) 6 NWLR (PT 1297) 407, PER JOHN INYANG OKORO JCA then, on when a Court could be accused of raising a matter Suo Moto that:
“A Court can only be accused of raising an issue suo moto, if the issue or matter of facts did not exist in the litigation: A Court cannot be accused of raising an issue or a matter of fact suo moto if the issue or matter of fact exists in the litigation? A judge by nature of his adjudicatory functions can draw inferences from stated facts in a case, and by such inferences, the Judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts are introduced suo moto. Equally, where a judge refers to a piece of legislature or rule of Court which assists him to exercise its discretion one way or the other, he cannot be accused of introducing the rule of Court suo moto.”
The issue of exemption in this case was clearly not raised by the trial Court suo moto, and so
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the need did not arise for counsel to be called upon to address the Court on same, accordingly this issue is resolved in favour of the respondent, against the appellants.
Issue Three:
Whether the exemption clause in Exhibit A is violation of the Public Procurement Act, 2007.
It is submitted for the appellants that Public Procurement Act does not make provision for exemption clause in Exhibit A; learned counsel referred the Court to Sections 16 (7), 28 and 33 (1) of same and contended that the facts before the trial Court and the Court’s findings show that there was a valid contract between the parties and therefore Exhibit A is in violation of the Act.
It is submitted in response that the Act neither prohibited nor made provision for exemption clauses and so parties are at liberty to insert same or not and as such Exhibit A is not in violation of the Act; learned counsel referred the Court to N.S.S. NIG. LTD V. INNIS-PALMER supra.
?There does not appear to be any express provision in the Public Procurement Act 2007 forbidding exemption clauses as contended for the appellants, just as there is none requiring for the insertion of same in
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a contract as of necessity; by the same token it cannot be said with any degree of certainty or finality that the Act forbade exemption clauses simply because it did not make provisions for one.
While there is no denying the fact that Courts tend generally seem to be hostile to exclusion or exemption clauses because once there is any ambiguity in the clause, it will be construed against the person who is trying to rely on the clause, see CHEVRON NIG. LTD. v. TITAN ENERGY LTD (2013) LPELR-21202-CA; nonetheless, a party who entered into any agreement with the full knowledge of an exemption clause will find it difficult to escape from the consequence of the exemption clause, in the absence of any breach by the other side; see EAGLE SUPERPACK NIG. LTD V. ACB PLC (2006) LPELR-980-SC; and that being so the exemption clause in Exhibit A is not in violation of the Public Procurement Act; for that reason this issue is resolved in favour of the respondent, against the appellant.
Issue Four:
Whether the trial Court was right in dismissing the suit even after finding that there was a valid contract between the parties which was not frustrated.
It is
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submitted for the appellant that even though the trial Court found that there was a valid contract between the parties which was not frustrated, and the claims of the appellants proved yet he failed to award the appellants’ same; learned counsel urged this Court to award the claims which ought to have been awarded under Orders 4 Rule 3, 19 Rule 11(1) of the Court of Appeal Rules, 2011.
It is submitted for the respondent in response that the trial Court was right to have dismissed the plaintiffs/appellants’ claim because even though it found there was a contract, the contract clearly spelt out the respondent will not be liable for any damages as a result of response to the advertisement.
It is always important to bear in mind that where there is an agreement between parties the Courts always without hesitation enforce the terms of the agreement between the parties, this is so because the law recognizes and respects the sanctity of agreements and where the parties have agreed, the conditions must be observed, see NDIC V. JACKSON DIVOS LTD (2014) LPELR- 23387-CA.
The agreement between the appellants and the respondent is Exhibit A, and the trial
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Court enforced it ‘warts and all’, there is no escaping the requirements of the law, because parties who have freely and voluntarily entered into a written agreement are bound by the terms and conditions stipulated therein. See ISHENO V. JULIUS BERGER (2008) 2 – 3 SC (PT. 11) 78; HILARY FARMS LTD & ORS V. M/V “MAHTRA” (2007) ALL FWLR (PT. 390) 14127; LARMIE V. DATA PROCESSING MAINTENANCE SERVICE LTD (2005) 18 NWLR (PT. 958) 438.
Accordingly this issue too is resolved in favour of the respondent, against the appellants.
Having resolved all the four issues in favour of the respondent, against the appellants the appeal fails for lack of merit and it is accordingly dismissed. The judgment of the High Court of the Federal Capital Territory Abuja, in Suit No: CV/489/2013 delivered on 30th October, 2014 is hereby affirmed.
Parties to bear their respective costs.
Other Citations: (2016)LCN/8610(CA)
