Courts cannot write contracts for parties

NIGER DELTA DEVELOPMENT COMMISSION v. CHRISBROWN INTERNATIONAL LIMITED;

HADO NIGERIA LIMITED

COURT OF APPEAL (PORT HARCOURT DIVISION)

(TSAMIYA; EKO; FASANMI, JJ.CA)

Chrisbrown International Limited (“the 1st Respondent”) had expressed its interest in bidding for the construction of the proposed AVU Ada Palm Etekwuru Road. The 1st Respondent claimed to have been responsible (and stated in its pleadings that it had gone to considerable expense) for the inclusion of the project in the budget of the Niger Delta Development Commission (NDDC). The 1st Respondent alleged that in disregard of its efforts, the Secretary to the Government of the Federation directed the Bureau of Public Procurement to issue a Certificate of No Objection to the NDDC to award the contract to Hado Nigeria Limited.

The Certificate was issued and the 1st Respondent protested and filed an action against both the NDDC and Hado Nigeria Limited. One of the reliefs sought by the 1st Respondent was:

“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.”

The appellants had filed processes to defend the suit at 1:45 the afternoon before and at 8:50 in the morning of the day the matter was heard. The trial court stated that there was no defence before it and entered default judgment against both defendants/appellants allowing all the 1st Respondent’s claims.

Both appellants were unhappy with this and filed separate appeals which were consolidated for convenience.

The issues raised in the appeals touched on the denial by the trial court of the appellants’ rights to fair hearing and the lack of disclosure by the 1st Respondent of a reasonable cause of action against the appellants.

Counsel to Hado Nigeria Limited submitted that the 1st Respondent’s statement of claim did not disclose any reasonable cause of action against the appellants, and therefore, the 1st Respondent had no locus standi.

Counsel to NDDC submitted that on the principle of ex turpi causa non oritur actio, the 1st Respondent had no reasonable cause of action. It was submitted that the 1stRespondenthad admitted the illegality of its own actions in its Statement of Claim.

The Court of Appeal noted that the 1stRespondent did not make any serious effort to contest the arguments of the appellants on whether the suit was properly constituted either as to itslocus standi, or that ex facie the suit had been founded on an immoral or illegal cause.

Allowing both appeals, the Courtof Appeal as follows:

“The cursory glance at these reliefs would suggest that the substratum of the plaintiffs’ grouse or grievance is the Certificate of NO OBJECTION issued in favour of the 2nd defendant, appellant in CA/PH/461/20112, 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 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 Riinco 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.”

Counsel:

Uche F. Ewule Esq with S. E. Worie and D. I. Onuodo for Hado Nig. Ltd

Oladejo Lamikanra, SAN with V. C. Onyechefor NDDC

I. E. Oguaju-Dike for Chrisbrown Int’l Ltd

This summary is fully reported at (2013) 8 CLRN

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