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BASIC FACTS AND LAW TO CONFIRM
THAT IT IS THE STATUTORY
RESPONSIBILITY OF A WELL CONSTITUTED
BUREAU OF PUBLIC PROCUREMENT AND OR A
WELL CONSTITUTED FEDERAL HIGH COURT OF
LAW TO CANCEL THE 2.3 GHz LICENCING
ROUND ,IF THE DISPOSAL PROCESS IS FOUND
TO BE IN VIOLATION OF PUBLIC ROCUREMENT
ACT 2OO7,
AND NOT THAT OF THE HON. MINISTER OF
INFORMATION AND COMMUNICATION
PREPARED BY THE NGO NETWORK IN
PROFESSIONAL CONSULTATION WITH THE
CHARTERED INSTITUTE OF PURCHASING AND
SUPPLY MANAGENEMT OF NIGERIA AND OTHER
CIVIL SOCIETY ORGANISATIONS WORKING ON
PUBLIC PROCUREMENT CORRUPTION AND
TRANSPARENCY
The Presidential Spokesman(Adeniyi) and
The President himself has stated many
times in many occasions that Yar’adua
remain true to his conviction that the
best way to fight corruption is to use
the rule of law rather than drama and
we in NGO NETWORK , VARIOUS Civil
societies and the CIPSMN ,agree with
the Presidents strategy of RULE OF LAW
AND PUBLIC PROCUREMENT DUE PROCESS.
We note however that
The supreme court
stated in a judgment delivered on 4th
October 1991 by Justice Nwokedi in the
case of
Agbai v Okogbue (1991) CLR 10(a) (SC)
that the Principles of rule of law
are:-
( a )
The absolute supremacy of law as opposed
to the exercise of
arbitrary power;
(b)
Equality of persons before the law;
(c) That the constitution is the
result of the ordinary law of the land
as interpreted by the courts.
From the above ruling of the Supreme
Court, it is very important for our
group to first draw the personal
attention of the Hon Minister of
Information to Part V Section 17 of the
Public Procurement Act 2007 which states
that the approval authority for Public
PROCUREMENT (including Disposal of
Government Assets as also captured in
Part x section 55 and 56 of Public
Procurement Act) in the case of any
Parastatal in Nigeria is the
PARASTATALS TENDERS BOARD AND NOT
THE MINISTRY .
It is important here to draw the
attention of the Hon Minster to
Section 20 of Public Procurement Act
2007, to observe that:
1 The
Accounting Officer of a
procuring/disposing entity shall be the
person charged with line supervision of
the conduct of all procurement
processes; in the case of Ministries,
the Permanent Secretary and in the case
of Extra-ministerial Departments and
Corporations the Director-General; or
officer of coordinate responsibility and
that;
2 The
accounting officer of every procuring
entity shall have the overall
responsibility for the planning of,
organization of tenders, evaluation of
tenders and execution of all
procurements and in particular shall be
responsible for Ensuring compliance
with constituting the procurement
Committee and its decisions; the
provisions of this Act by his entity and
liable in person for the breach or
contravention of this Act or any
regulation made hereunder whether or not
the act of omission was carried out by
him personally or any of his
subordinates and it shall not be
material that he had delegated any
function, duty or power to any person or
group of Persons etc ,INCLUDING LIAISON
WITH THE BUREAU OF PUBLIC PROCUREMENT (BPP)
TO ENSURE THE IMPLEMENTATION OF THE
REGULATIONS.
The
process of disposal of assets under the
Public Procurement Act include from
Disposal Planning, to
Prequalification/invitation to bid, then
to BID RECEIPT/OPENING (6 WEEKS AFTER
ADVERT FOR ANY NATIONAL OR INTERNATIONAL
COMPETITIVE BID FOR DISPOSAL OF ASSET)
,ANOTHER PREQUALIFICATION OR
PREQUALIFICATION IF IT WAS NOT DONE AT
THE BEGINNING, THEN BID EXAMINATION AND
EVALUATION,NEGOTIATION/DISPOSAL AWARD
,MONITORING OF DISPOSAL AWARD,RECEIPT OF
PAYMENTS/RECORDS KEEPING, AND AFTER
DISPOSAL EVALUATION/AUDIT
WHILE
WE BELIEVE THAT THE CORRECT PROCESS FOR
THE DISPOSAL OF THIS GOVERNMENT ASSET AS
CONTAINED IN SECTION
55,56,19
OF THE PUBLIC PROCUREMENT ACT OF 2007
AND OTHER RELEVANT SECTIONS IS
PRESENTLY NOT FOLLOWED BY THE Nigeria
Communication Commission, NCC, AND AS
RIGHTLY OBSERVED BY THE HONOURABLE
MINISTER,THE QUESTION
NOW
IS,
WHAT
IS THE HON MINSTER EXPECTED TO DO?
WE UNDERSTAND THAT,
Hon. Minister either wrote directly to
Economic and Financial Crime Commission,
EFCC and/or submitted the petitions
submitted to her by Galaxy Wireless to
EFCC and the EFCC went and arrested the
NCC officials for interrogation. This is
not the process in law.
THE EFCC SHOULD know that they are not
permitted by law TO GO for DIRECT
criminal INVESTIGATION IN RESPECT OF
ANY PUBLIC PROCUREMENT PROCESS still
in progress ,( THAT HAS NOT BEEN
COMPLETED ) UNLESS THE INVESTIGATION
IS RECOMMEMDED BY THE BUREAU OF PUBLIC
PROCUREMENT( see section 53 of Public
PROCUREMENT ACT 2007) AND THIS
RECOMMENDATION SHALL BE AFTER THE
INITIAL REVIEW/PROCUREMENT
AUDIT/EXAMINATION/CHECKS etc, CARRIED
OUT BY THE BUREAU OF PUBLIC PROCUREMENT.
This review and recommendation by the
Bureau FOR EFCC OR ICPC OR POLICE ETC
to carry out more investigation TO
DETERMINE criminality, will be based
on a PROFESSIONAL procurement audit
carried out by BPP
For guidance,
Procurement audit, refers to “A
comprehensive, systematic, independent
and periodic examination, review,
inspection /observation exploration,
inquiry, investigation , scrutinizing
, studying, etc of a company’s or
Government Procuring Agency’s
Procurement environment, objectives and
tactics to identify problems and
opportunities to facilitate the
development of appropriate actions
plans.
The
objective of Procurement Audit is to
seek for an
independent auditors opinion on the
Procurement, contracting and
implementation processes,
which have been followed for contracts
financed from the consolidated
revenue of the Federal Government of
Nigeria, in accordance with the
constitution, Public Procurement Act
2007, the relevant appropriation Act AND
THE CIPSMN Act 2007 and other relevant
laws regulating Public Procurement,
In accordance with section 20 of the
Public Procurement Act (PPA), the
Bureau of Public Procurement
(BPP)
may, pursuant to the advice of the
procuring entity (in this case IT COULD
BE THE advice of the HONOURABLE MINISTER
OF INFORMATION AND COMMUNICATION),
result of its review of a procurement or
report of investigation by a relevant
government agency issue a variation
order requiring a contractor at his own
expense to repair, replace, or to do
anything in his or her contract left
undone or found to have been carried out
with inferior or defective materials or
with less skill and expertise than
required by the contract of award.
The Bureau
shall
by this section of the law
and, if satisfied
that there has been a contravention of
this Act or any regulations in relation
to procurement proceedings or
procurement contracts, take action to
rectify the contravention which shall
include;
(a)
Nullification of the procurement
proceedings
(as now proposed by the Honourable
Minister outside her jurisdiction)
(b)
Cancellation of procurement contract
(AS
PROPOSED BY THE HONOURABLE MINSTER
OUTSIDE HER JURISDICTION)
(c)
Ratification of anything done in
relation to the proceedings; or
(d) A
declaration consistent with any relevant
provisions of this Act.
HAVING PROVIDED THE ABOVE INFORMATION
,OUR ADVICE IS FOR THE HON. MINISTER TO
FOLLOW THE STATUTORY PROCESS LAID DOWN
BY LAW BY WRITING TO THE BPP REQUESTING
THAT THE PROCUREMENT PROCESS BE
NULLIFIED AND STATE REASONS AND THEN THE
BPP WILL CARRY OUT A REVIEW/EXAMINATION
AND COME UP WITH A PUBLIC PROCUREMENT
AUDIT REPORT WHICH CAN BE USED BY THE
BPP TO MAKE THE DECISION OR INVITE EFCC
FOR FURTHER CRIMINAL INVESTIGATION. BUT
CERTAINLY, THIS IS NOT A DECISION THAT
THE HON MINISTER AND HER TEAM CAN MAKE.
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We also read in the NATION
NEWSPAPER OF 28/5/2009 AND 29/5/2009
that
a Bidder CALLED GALAXY
WIRELESS petitioned the
Presidency in respect of the bidding
process for the disposal of the licence.
The Bidder
should be informed to stop disturbing
our President and Ministers and their
attention should be drawn to the
existence of SECTION 6 OF PUBLIC
PROCUREMENT ACT and Section 54 which
confers powers to the Council/Bureau of
Public Procurement to deal with the
issues at stake. The resolution of
bidding process disputes(before contract
is fully executed) is an internal affair
of BPP, the BIDDER and the procuring
entity and any appeal on the decision of
the procuring entity and the BPP on this
matter can only go to Federal High COURT
for appeal. It IS THE RESPONSIBILITY OF
THE BPP to know how to consult with the
President OR any other body or person
before making the decision and bearing
in mind that the decision can be
appealed at the Federal High Court.
The Bidder should also be called to
order and advised on what to do and
which is to have written about his
complaint within 15 working
days from the date the bidder first
became aware of the circumstances giving
rise to the complaint or should have
become aware of the circumstances,
(which ever is earlier) to the Chief
Executive of NCC in accordance with
Section 54 and subsections 1 ,2 and 3
of the Public Procurement ACT 2007 .
IF IT
IS FOUND OUT THAT THE BIDDER DID NOT
TAKE THIS STEP TO DATE, BUT INSTEAD WAS
WRITING TO THE PRESIDENCY AND MINISTER,
THEN IT HAS NO RIGHT TO WASTE THE TIME
OF GOVERNMENT AS FAR AS PROVIDING THE
COMMUNICATION IS CONCERNED BECAUSE IT
WILL SHOW THAT THE BIDDER IS IGNORANT OF
PUBLIC PROCUREMENT ACT AND MAY HAVE LOST
ITS LEGAL RIGHT TO COMPLAIN)
BUT if
the Bidder did, it is the duty of BPP to
conduct a Public Procurement Audit on
the transaction(s) and respond to them
within 21days in accordance with Section
54 subsection 4 of the Public
procurement Act 2007,
AND Where the Bureau fails to render
its decision within the stipulated time
of 21 days, or the bidder is not
satisfied with decision of the Bureau,
the bidder may then appeal to the
Federal High Court within 30 days after
the receipt of the decision of the
Bureau, or expiration of the time
stipulated for the Bureau to deliver a
decision in accordance with section 54
subsection 7 of Public Procurement ACT
2007.
Before taking decisions within 21 days,
the BPP is required under the law to
notify
all interested bidders of the compliant
received ( i.e. Notify Mobitel,
Multilink and the other third party) and
may take into account representations
from the interested bidders (i.e.
Mobitel, Multilink and the third
company) and from the respective
procuring or disposing entity which in
this case is the NCC (see section 54 (5)
of Public Procurement Act.). It is
only after all of these steps have taken
place that the BPP may now invite EFCC
into the matter and this is why we are
of the opinion that the due process of
law was not followed, which we observed
is wrong for EFCC to have arrested NCC
officials at this stage.
The REPORT in NATION NEWSPAPER OF
29/5/2009 is claimed that documents
available to them has indicted the NCC
but we in NGOs AND RELEVANT PROFESSIONAL
BODIES SEE THIS STATEMENT AS MERE
ACCUSATION, REQUIRING THE BPP to
substantiate it with a Procurement
Audit/ review report or Criminal
investigation report of EFCC recommended
by BPP after their own report of
audit/review of processes.
Once a procurement process including
disposal process under the Public
Procurement has started and the Chief
Accounting Officer of that procuring
entity is involved, the way to stop
him/her from taking further steps which
will be binding on all parties including
the bidders is via the Bureau of Public
Procurement.
The
issues raised by the Nigeria
Broadcasting Commission, NBC AND
the Federal ministry of Information and
Communication, FMIC
ARE MERE DISPOSAL PLANNING INFORMATION
ADVICE WHICH THE NCC can reject on
legal/professional grounds and the
statutory way to stop them when they
reject such an advice without disturbing
the Executive is by writing to the BPP
to invoke their powers in Sections 6,
53, 54 and 55 of the Public Procurement
ACT 2007 to stop the entire process
pending review.
We will like to state that even the
courts in Nigeria are not likely to be
happy to hear any party “jumping the
gun” in this case, not at least until
the BPP/National Council on Public
Procurement (NCPP) has had the chance to
deliberate on their case.{ see the
decision of the Supreme Court in the
case of Akintemi V Prof. Onwumechili
(1985) CLR 1(b 0 (SC). The objective of
establishing the Council/BPP is all
about excellence in Public Procurement
and no contractor or any other party
should be allowed/encouraged to pollute
the statutory channel of Public
Procurement/asset disposal excellence.
The FEDERAL HIGH COURT is mandated in
Part xii Section 58 subsection 2 to
try offences in contravention of the
Public procurement Act, hence we believe
they may assume original jurisdiction
in bidding process dispute (before
contract)in the present exceptional
circumstances where there is no National
council on Public Procurement/Qualified
Procurement officials at the BPP to hear
arguments from bidders in respect of
complaints etc but we also believe that
they will ordinarily not entertain
issues surrounding procurement/disposal
still in progress in respect of which
arguments has not been taken and
decisions reached by the BPP/NATIONAL
COUNCIL on Procurement.
As a matter of fact , since procurement
is treated as Disposal of asset in
Procurement Act, the NCC needs a duly
signed “NO OBJECTION CERTIFICATE” from
the BPP/National Council on Public
procurement before the disposal of the
2.3GHz band in question.
HOWEVER, THE PROBLEM THAT THE FEDERAL
GOVERNMENT WILL FACE NOW IS THAT FOR
THE BPP TO HAVE COMPETENCE with
JURISDICTION TO CARRY OUT A PROCUREMENT
AUDIT / ADMINISTRATIVE REVIEW WHICH CAN
LEAD TO A BIDDER’S APPEAL AT THE
FEDERAL HIGH COURT(SEE Section 54 of
PPA), AND OR NULIFFICATION OF A
PROCUREMENT/DISPOSAL PROCESS( SEE
Section 6 and 53(4) of PPA 2007) THE BPP
MUST DEMONSTRATE THAT IT HAS QUALIFIED
PERSONNEL/JURISDICTION TO HANDLE THE
MATTER IN THE FIRST INSTANCE
THIS IS WHERE THE PROBLEM LIES IN
NIGERIA TODAY BECAUSE JURISDICTION
INVOLVES PROPER CONSTITUTION OF BPP/COUNCIL
ON PROCUREMENT AND THERE ARE NO
QUALIFIED PROFESSIONALS IN PROCUREMENT
AT THE BUREAU AND THE NATIONAL COUNCIL
ON PUBLIC PROCUREMENT IS NON-EXISTENT TO
HEAR DISPUTES IN RESPECT OF THIS
PROCUREMENT PROBLEM, BEFORE IT GOES TO
FEDERAL HIGH COURT FOR APPEAL.(SEE
SECTION 54 OF PPA 2007)
THE FEDERAL HIGH COURT IS NO LONGER
EXPECTED UNDER THE LAW, TO HEAR SUCH
CIVIL CASES DIRECTLY AS A COURT OF FIRST
JURISDICTION BUT AFTER GOING THROUGH THE
ADMINSTRATIVE PROCESS LAID DOWN AS
FOLLOWED BEFORE GOING TO FEDERAL HIGH
COURT ON APPEAL.
All the parties
in the dispute are required to note that
the Public Procurement Act 2007
was signed into law on June 4, 2007 and
gazette on June 16, 2007 as a special
law to minimize and if possible
eliminate corruption in Public
Procurement in
Nigeria.
Note also that the Chartered
Institute of Purchasing and Supply
Management(CIPSMN) Act 2007 was
signed into law on the 30th OF APRIL
2007 AND Gazette on 4th July
2007 of the same year to regulate
professional procurement
services/practices and also to assist in
minimizing and where possible
eliminating fraud, sharp practices and
procurement corruption in Nigeria.
THE ABOVE MENTIONED ACTS ARE THE TWO
PRINCIPAL LAWS REGULATING PUBLIC
PROCUREMENT ACTIVITIES AND PRACTICE IN
NIGERIA AS AT TODAY.
THE FIRST PROBLEM IS THAT THE FEDERAL
GOVERNMENT IS PRESENTLY IN DEFAULT OF
1.
The constitution and inauguration of the
National Council on Public Procurement
in accordance with part 1 section 1
(1) of the Public Act 2007 to perform
the statutory functions stated in Part 1
Section 2 of the Act in respect of
Public Procurement in Nigeria.
2. The appointment of member of
the CIPSMN qualified by examination to
head the established Bureau of Public
Procurement, as the Director General in
accordance part iv section 11 (9) of
the Chartered Institute of Purchasing
and Supply Management Act 2007 and
part ii Sections 7(1), 7 2© and part
iv 16 (1) (a) of the Public Procurement
Act 2007 to perform the functions
stated in part I sections 1(1)(g),
and part ii section 5, using the powers
stipulated in part ii Section 6 of the
Public Procurement Act 2007.
3. The appointment of Principal
Officers of the established Bureau
of Public procurement, in accordance
with part ii section 8 of the Public
Procurement Act 2007.
4 The swearing in of
all officers of the Bureau, members of
Tenders Boards and other persons that
may come to act regarding the Conduct of
Public procurements
business
in Nigeria to an oath of office in
accordance with part xi section 57(1),57(3)
and 57(2) of the Public
Procurement Act 2007.
UNTIL THE ABOVE ISSUES ARE DISPOSED BY
THE PRESIDENT IT WILL CONTINUE TO BE
MORE AND MORE DIFFICULT FOR THE FEDERAL
GOVERNMENT AND OR BUREAU OF PUBLIC
PROCUREMENT TO STATUTORILY DEAL WITH THE
PUBLIC PROCUREMENT DISPUTE ARISING
STEADILY IN
NIGERIA.
ISSUES FOR DETERMINATION AND ARGUMENT
1. Whether by virtue of Section 17
of the Public procurement ACT 2007 the
Federal Executive Council COMPETENT to
approve/award a Valid contract in
Nigeria
as at today .
The answer is NO because
the court of appeal has stated in the
case of
Shell Trustees (Nig.) Ltd v Imani & Sons
(2000) CLR 6(b) (CA)
that there is a legal distinction
between Incompetence & Irregularity in
any action taken by a person or body.
That is to say, Incompetence and
irregularity are two different things.
While we accept and agree
with the Court of Appeal that an
irregularity in procedure or law adopted
in doing a thing does not by itself mean
that there is an error in law, we also
agree with court of appeal that If
THE FEDERAL EXECUTIVE COUNCIL is
incompetent under the law and as is the
case in Public procurement act 2007 to
award contracts (when someone is
incompetent to do anything), it means
that any contract it awards or has
awarded to date since 4th
June 2007 (anything that it does) ,no
matter how correct or regular cannot be
valid.
SEE Shell Trustees (Nig.)
Ltd v Imani & Sons (2000) CLR 6(b) (CA)
Part V Section 17 of Public
Procurement Act is clear and unambiguous
as to who is an approving authority and
competent to award contracts. It did
not provide for the Federal Executive
Council to approve/award contracts but
only for the various tenders boards to
do so.
2. Whether the “No Objection”
Certificate presently signed by the
Bureau of Public Procurement is legal,
in view of the Public Procurement and
CIPSMN Acts 2007.
The “No Objection
Certificate” being signed today by the
Bureau of Public Procurement is in
tandem with laid down procedures.
You will first and foremost go
to section 6(1) (b) of Public
Procurement ACT and you will see that
the issuance of the ‘certificate of no
objection’ for contract award is
subject to 6(1) (a) of Public
Procurement Act which states the
certificate is to enforce the monetary
and prior review thresholds set by the
Council. This Council TO APPROVE
THRESHOLD is currently not in existence
due to the interest of certain persons
in Government. This had promoted what
happened in Rural Electrification
Agency, REA.
IT SHOULD BE UNDERSTOOD THAT ‘NO
OBJECTION CERTIFICATE’ IS NOT THE SAME
THING WITH “DUE PROCESS CERTIFICATE”
ISSUED UNDER OBASANJO REGIME BECAUSE NOW
THE LAW HAS DEFINED NO OBJECTION
CERTIFICATE AND THE CONDITIONS TO ISSUE
SAME.
Please note that ‘No Objection”
Certificate’ is defined in PART XIII
section 60 of Public
Procurement Act 2007 to mean “the
document evidencing and authenticating
that due process and the letters of
Public Procurement Act 2007 have been
followed in the conduct of a procurement
proceeding and allowing for the
procuring entity to enter into contract
or effect payment to contractor or
suppliers from the treasury”.
The law provides in Part iv
section 16(4) of Public Procurement ACT,
that subject to the prior review
thresholds as may be set by the Bureau,
any procurement purported to be awarded
without a “Certificate of No Objection”
to Contract Award” duly issued by the
Bureau shall be null and void.
Please note that it is
therefore irregular for the ‘No
Objection Certificate’ to be issued
without a qualified DG appointed in
accordance with statutory provisions and
without a Council in place to approve
threshold limits as required by law
It must be understood that
professionally speaking, a “No
Objection Certificate” is the
independent final result of a
procurement audit. Before this
certificate is issued the REGISTERED
AND CHARTERED PROCURER issuing the
certificate is supposed to state UNDER
AN OATH as part of the certification and
in his/her own independent report
leading to the certification;
(a)
Whether he/she has obtained all the
information and explanations which, to
the best of HIS/HER knowledge and
belief, were necessary for the purposes
of the audit/examination and the
issuance of certificate of No Objection.
(b) whether, in his/her opinion,
proper records of procurement process
have been kept/followed by the
procuring entity in such form as to
explain, and give a true and fair view
of, the procurement transactions of the
entity
(c) whether he/she has examined
the procurement processes used for
the purpose of the certification.
(d) whether, to the best of
his/her knowledge and belief, there have
been any contraventions of the 2007 Act
and other related legislation during the
procurement process and whether every
such contravention has been reported to
the BPP etc as required by law;
(e) whether, in HIS/HER opinion,
the assets TO BE DISPOSED ,in case of
disposals ,have been properly valued by
certified valuers.
(f) whether, in HIS/HER opinion,
and to the best of his/her information,
and having regard to the explanations
given to them, the procurement process
is in agreement with the approved budget
for the year in question and give the
information required by the 2007 public
procurement Act in the manner so
required.
From the above explanation it is clear
that the NO OBJECTION CERTIFICATE IS A
PROFESSIONAL CERTIFICATE AND NOT A
POLITICAL CERTIFICATE.
A Director General not recruited as in
section 7 of the Public Procurement Act
2007 and who is not a member of CIPSMN
qualified by examination is not
qualified to issue a “Certificate of No
Objection” (see section 16 (1)(a) under
fundamental principles) of Public
procurement ACT and SECTION 11(9 ) OF
CIPSMN ACT 2007.
AS STATED BEFORE ,if a person is not
competent/HAS NO JURIDICTION
to do anything, anything that it does
,no matter how correct or regular cannot
be valid. This No objection
certification by a person or persons in
BPP is not a matter of irregularity but
is about whether incompet or competent
or has jurisdiction to do a thing under
law or not. The case of Shell
Trustees (Nig.) Ltd v Imani & Sons
(2000) CLR 6(b) (CA) has explained this
situation very well.
3. Whether by virtue of the
provisions of part xi section 57 of
Public procurement Act, it is proper for
a procurement officer that has not been
sworn in by the National Council on
Public Procurement to be charged for
criminal breach of trust embedded in
Public Procurement Act 2007.
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The objectives of the Bureau of
Public procurement are: |
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(a) The harmonization of
existing government policies and
practices on public procurement and
ensuring probity, accountability and
transparency in the procurement
process;
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(b) The establishment of
pricing standards and benchmarks; |
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(c) Ensuring the application
of fair competitive, transparent,
value-for money standard and
practices for the procurement and
disposal of public assets and
services; and |
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(d) The attainment of transparency,
competitiveness, cost
effectiveness and
professionalism in the public sector
procurement system. |
The appeal court HAS stated that where a
person commences an action which
requires the fulfillment of precondition
or a condition for the commencement of
such an action, that condition must be
fulfilled before that action can be said
to have validly commenced.
Where there is non-compliance with
stipulated condition precedent, any suit
instituted is incompetent and court is
also not competent to entertain such
suits. This is the decision of Court of
Appeal in the case of FDB Financial
Services Vs Adesola (2000) CLR 7(J) CA.
The actions listed in the introduction
that are yet to be carried out by the
Federal Government has made it
impossible to establish a Bureau of
PUBLIC PROCUREMENT THAT WILL
harmonize all
existing government policies and
practices on public procurement and
ensuring probity, accountability and
transparency in the procurement process
as well as ensure the
application of fair competitive,
transparent, value-for money standard
and practices for the procurement and
disposal of public assets and services;
and attainment of transparency,
competitiveness, cost effectiveness
and professionalism in the public
sector procurement system.
In the court of Appeal case between
P.C.O.S.U Vs Makinde (1991) CLR 4(f) CA,
it has been stated that the effect of
non compliance with a statutory pre
condition for setting legal process in
motion is that any suit instituted in
contravention is null and void.
It is also stated in the appeal
court case above that the preconditions
providing for the happening of an event
or performance of certain act before
action is taken in court or before
cognizance is taken of an action by the
court have never been disallowed nor
disregarded by court and the court will
readily accept such stipulation unless
it is contrary to public policy.
The Supreme Court stated in the case of
Ojokolobo v Alamu (1987) CLR 7( c ) (SC)
that for interpretation of statues that
“It
seems clear that the constitution itself
sets a limit of time for the exercise of
the jurisdiction to "hear and determine"
appeals and any determination outside
the 3 months period from the date of the
conclusion of evidence and final
addresses (which constitute the hearing)
is a determination without jurisdiction.
I do not see how one can overlook the
phrase "subject to the provisions of
this Constitution"
this constitution restraint reinforces
the construction of Section 258(1) by
this Court that the provision is
mandatory and not directory.
That, in my view, settles or lays the
point that any judgment delivered after
3 months from the conclusion of evidence
and final addresses is a nullity at
best. It is the Constitution that gave
the jurisdiction. It is the
Constitution that terminated it. Without
jurisdiction, a Court cannot exercise
its judicial powers and any such
exercise is an exercise in vacuo
and null and void”
The above ruling of the Supreme Court
when applied to the Public Procurement
Act 2007, it is our understanding that
the Federal Government is in violation
of a mandatory provision in PART IV
section 16(1)(a) under fundamental
principles for procurement and which
states that PUBLIC PROCUREMENT IN
NIGERIA IS SUBJECT TO PRIOR REVIEW
THRESHOLD APPROVED BY THE COUNCIL AND
THE APPOINTMNT OF A DIRECTOR GENERAL
RECOMMENDED TO THE PRESIDENT THROUGH A
COMPETITIVE PROCESS AS IN SECTION 7 OF
PUBLIC PROCUREMENT ACT 2007.
4.
Whether by virtue of the provisions of
section 16 (1) (a) of the Public
Procurement Act 2007 and section 11(9)
of CIPSMN Act, a Director general of the
Bureau of Public Procurement who has not
been recruited in accordance with
section 7 of the Public Procurement Act
2007 is competent to CARRY OUT AN
ADMINISTRATIVE REVIEW OF A PROCUREMENT
PROCESS IN DISPUTE THAT CAN BE SUBMITTED
TO FEDERAL HIGH COURT ON APPEAL.
Again ,
we note that the fact that there is an
irregularity in procedure or law adopted
does not by itself mean that there is an
error in law but
we submit that if a person is not
competent under the law/has no
jurisdiction to do anything, anything
that it does, no matter how correct or
regular cannot be valid. SEE
Shell Trustees (Nig.) Ltd vs Imani &
Sons (2000) CLR 6(b) (CA)
The Public Procurement Act 2007 is very
clear under the Fundamental principles
for Procurement that all procurements in
Nigeria are subject to fulfillment of
Part II SECTION 7(1 ) OF THE PUBLIC
PROCUREMENT ACT 2007 AND THIS HAS NOT
BEEN FULFILLED IN NIGERIA.
Section 16 of the Public Procurement
Act 2007 is about fundamental principles
for procurement which cannot be waived
hence a Director General of Bureau of
BPP not SELECTED via a competitive
process as required by law cannot
function or exist to perform statutory
functions. This is not
a matter of irregularity but
incompetence to do a thing under law.
JUSTICE OPUTA OF THE SUPREME COURT
stated in the case of
Adekeye v Akin-Olugbade (1987) CLR 6(c)
(SC)
that:
“Trustees cannot set-up any equitable
remedy in their favour because they have
converted partnership property into
their personal use and their complaint
suffers from a radical and intrinsic
fundamental vice. There hands are not
clean. He who comes to equity must come
with clean hands”
Following the logic in this case the
complaint by Ministry against NCC and
the bidder in this case, suffers from a
radical and intrinsic fundamental vice.
The position of government and her
agents such as EFCC are not in
accordance with the law. He who comes to
equity must come with clean hands”
The appeal court stated that where a
person commences an action which
requires the fulfillment of precondition
or a condition for the commencement of
such an action, that condition must be
fulfilled before that action can be said
to have validly commenced. Where there
is non compliance with stipulated
condition precedent any suit instituted
is incompetent and court is also not
competent to entertain such suits. This
is the decision of court of appeal in
the case of FDB Financial services V
Adesola (2000) CLR 7(J) CA.
We believe that the FEDERAL government
is very adamant in refusing/neglecting
to implement the 2007 Act after various
calls from NGOs, LABOUR, House of
Representatives etc to implement the ACT
HENCE any administrative review carried
out under the PPA is null and void.
Whether it WILL BE an abuse of
court/judicial process for ANY OF THE
CONTRACTORS/BIDDERS PRESENTLY INVOLVED
IN THE 2.3GhZ Licensing round to go to
FEDERAL HIGH COURT AS A COURT OF FIRST
JURISDICTION TO HEAR CIVIL CASES OF
VIOLATION OF THE BIDDING PROCESS INSTEAD
OF FIRST GOING TO BUREAU OF PUBLIC
PROCUREMMENT FOR AN ADMINISTRATIVE
REVIEW THAT CAN THEN LEAD TO ANY
APPEAL AT FEDERAL HIGH COURT.
Judicial or abuse of court process is
generally said to have occurred when:
(a) A party in litigation takes a
most irregular, unusual and precipitates
action in judicial process for the
sake of action “qua” litigation with
an aim of wasting valuable
litigation time and an action which
could be one or more too many.
B When there is multiplicity
of suits in respect of the same parties
on the same subject matter, to
harass irritate, annoy with the aim
of bias,
malice ,some deliberateness, some desire
to misuse or pervert the system
C When in the case of motions,
the totality or purport of the motions
convey similarity to the extent
that one could easily be substituted for
the other.
This was the decision in the following
cases:-
UBA Plc v Mode Nig. Ltd (2000) CLR 10(f
) (CA) AND NV,S cheepv MV
“S.Araz”(2000)CLR 12(L) (SC)
It is therefore our believe that ANY
action INSTITUTED by any of the
contractors/bidders IN THE Federal High
Court, which involves originating an
action against NCC for breach OF
BIDDING PROCESS IN this licensing round
without the administrative report of
the BPP in accordance with section 54 of
Public Procurement Act 2007 will be one
of the most irregular, unusual and
precipitate action in judicial process
for the sake of action
qua
litigation with an aim of wasting
valuable litigation time.
The action will amount to using the
JUDICIAL PROCESS /process of court
“malafide” to overreach the NCC who are
adverse party. Our judges should be
urged to show the annoyance of the court
under the circumstance.
It is trite in law that THE FEDERAL
HIGH COURT or any other court of law has
no jurisdiction to hear a matter, UNLESS
the court is well constituted. This
TRITE LAW will also by
implication/inference apply to the
jurisdiction of the BUREAU OF PUBLIC
PROCUREMENT TO HEAR ANY PETITION FROM A
CONTRACTOR/BIDDER WHICH THE PROCURING
ENTITY(IN THIS CASE NCC) HAS FAILED TO
ADRESS SATISFACTORILY in accordance with
section 54 of Public procurement Act
2007.
There is also no jurisdiction for any
Court or the Bureau of Public
Procurement to hear cases not initiated
by due process of law and which has
failed to fulfill any of the
preconditions to the exercise of
jurisdiction and or where there is any
feature in the case which prevents the
Court/Bureau of Public Procurement from
exercising its jurisdiction.
The defect in competence to hear a
matter is very fatal, for the
proceedings WITHOUT COMPETENCE are a
nullity no matter how well conducted and
decided, the defect being extrinsic to
adjudication.
SEE WESTERN STEEL WORKS V IRON AND
STEEL WORKERS UNION(1986) 3 NWLR (Pt30)
617 and Madukolo and Others V Nkemdilim
and others ( 1962) 2 SCNWLR 314 (1962) 1
ALL NLR (Pt 4) 587 where it was stated
in page 595, that the three conditions
that will co-exist for the exercise of
jurisdiction and to show when a court
has competence to hear a matter.
Since the Public Procurement Act 2007
has conferred appellate jurisdiction to
the Federal High court in respect of
civil cases arising from disputes in
Procurement /disposal of asset bidding
process, it will be an abuse of court
process for any of the contractors to
rush to Federal High Court without the
administrative review of a well
constituted Bureau of Public Procurement
as court of 1st jurisdiction.
The CASE of UDEH V. F.R.N. 920010 5
NWLR (Pt. 7060 312 at 327. Ekwenugo v.
F.R.N. (2001) 6 NWLR (Pt. 708) 1871 at
190-191 referred to. (P.230] paras.
25-30 has shown that it is the duty of
the Court to give effect to special
legislations of the National Assembly.
The Public Procurement Act 2007 is a
special legislation of the National
Assembly to curb corruption, and the
court is encouraged to look at any
violation of the laws in total and
not selectively as witnessed in the case
of NCC.
It is the mandatory duty of the Court
to direct the Federal Government/EFCC to
comply with
sections 1(1), 1(2), 2, 5(p), 6, 7(1), 7
2(c), 8, and 16(1)(b) of the Public
Procurement Act before charging anybody
to court for criminal breach of trust
embedded in the Public Procurement Act
2007 as it effects Part V Section 17,
19, 20, 21, 23, 24, 25, 26, 27, 28, 29,
30, 31, 32, 33, 34 and in particular 35
,53,54,55,56, ETC of the Public
Procurement Act BEFORE APPEARING AT THE
FEDERAL HIGH COURT ON APPEAL for
disputes arising from the decisions of
the BPP.
THE CASE of
MADIKE VS THE STATE (1992) 8 NWLR (Pt
257) page 85. Shows that
“the court always has it in inherently
in its powers to see to it that it’s
judicial/court processes is not abused
by proceedings without reasonable
ground. Similarly a court of law is
bound to protect its judgment and not
make a ridicule of it and must stand
firm in defense of its process”
ALL PARTIES IN THE 2.3 GHz Licensing
DISPUTE SHOULD be made to understand
that the “Express statutory provisions
in statues is what guide the exercise of
judicial powers and exclude the
invocation of inherent powers. In other
words inherent powers of court only come
into play in the absence of express
statutory provisions and the court then
fills in the gap by invoking its
inherent powers to do justice in the
given case.
Where however as in the instant case,
there are clear express provisions of
statutes to be followed by FEDERAL
GOVERNMENT TO AVOID/REDUCE WASTING THE
TIME OF THE COURT/MINIMISE OR ERADICATE
CORRUPTION , it is the sacred duty of
the Courts to give orders that will give
effect to it.( See Olatunji v. F.R.N.
(2003) 3 NWLR (Pt. 807) 406 and State V.
Ajayi (1996) 1 [P. 231] paras. 5-15.)
WHERE IT IS BEING VIOLATED.
In the instant issue at hand it is only
Where the Bureau fails to render its
decision on a dispute within the
stipulated time of 21 days , or the
bidder is not satisfied with decision of
the Bureau, the bidder
may then appeal to the Federal High
Court within 30 days after the receipt
of the decision of the Bureau,
or expiration of the time stipulated for
the Bureau to deliver a decision in
accordance with section 54 subsections 6
and 7 of Public Procurement ACT 2007. |
