NATIONAL CONTRACTORS LIMITED v NATIONAL DEVELOPMENT CORPORATION

SAINT LUCIA IN THE HIGH COURT OF JUSTICE CIVIL SUIT NO.02 OF 1996 BETWEEN: NATIONAL CONTRACTORS LIMITED Applicant/Plaintiff and NATIONAL DEVELOPMENT CORPORATION Respondent/Defendant Appearances: Mr. Peter I. Foster and Ms. Claire Greene-Malaykhan for the Applicant/ Plaintiff. Mrs. Brenda Floissac-Fleming for the Respondent/ Defendant. --------------------------------------------------- 1999: October 14, November 04, 22 April 19 -------------------------------------------------------------- JUDGMENT day of January 1996, the Applicant/

[1]HARIPRASHAD-CHARLES J. [Ag.] On 4 th Plaintiff filed an application for leave to apply for Judicial Review in accordance with Order 44 of the Rules of the Supreme Court 1970.

[2]On 15th day of January 1996, d'Auvergne J. granted leave to file and serve writs of certiorari and mandamus.

[3]By w ay of O riginating S ummons f iled on 2 3rd day of M ay 199 6, t he Plaintiff applied for: (a) an order of Certiorari to remove into the High Court for the purpose of it being quashed a decision made by the National Development Corporation whereby it decided t o accept the tender presented by Q uarry P roducts Limited, a nd or Le ftco Limited i n pl ace of t he A pplicants' f or t he Construction of Access Roads and Drainage Facilities - La Tourney Phase IV Extension - Vieux Fort; (b) an order of Mandamus directed to the National Development Corporation, a statutory body, to require the said Corporation to hear and determine according t o pr oper procedures, an d i n ac cordance w ith t he r ules of natural j ustice a nd i n ac cordance w ith pr oper t ender pr actices, t hat sufficient weight be gi ven to the Applicant's tender presented to the said Corporation, the said tender being the best available to the Corporation under all the circumstances; (c) such further or other relief in the terms set out in the Notice of Application as amended served herewith; and (d) costs of and occasioned by this motion be awarded to the Applicant.

[4]Prior to the hearing of the Originating Motion, the Respondent/Defendant filed a Notice of Motion under Order 8 Rule 3 and Order 33 Rule 4 for an order that the following question or issue be t ried separately as a preliminary issue before the trial of other questions or issues in this action namely: "Whether the Defendant's acceptance or rejection of a tender for works and t he D efendant's decision i n r egard t hereto are pr ivate acts and matters governed by t he private law of contract or are public acts and matters governed by public law and as such susceptible to judicial review capable of resulting in the remedies by way of the prerogative orders of certiorari and mandamus."

[5]Put a s impler w ay, the preliminary i ssue t o b e d etermined i s w hether t he Defendant's acceptance or rejection of a t ender f or works and t he Defendant's decision in regard thereto are private acts and are governed by private law or are public acts and are governed by public law.

THE RESPONDENT/DEFENDANT'S SUBMISSIONS

[6]Counsel for t he D efendant, M rs B renda F loissac-Fleming c ommenced h er arguments by stating that the remedies by way of judicial review (including the remedies by w ay of t he pr erogative orders of c ertiorari, m andamus a nd prohibition) ar e a ppropriate an d av ailable o nly i n r espect o f dec isions a nd administrative ac tions m ade or t aken i n t he ex ercise of or pur suant t o pu blic powers and duties (i.e. constitutional, statutory, prerogative and common or civil law powers and duties derived from and governed by public law). According to her, these r emedies are n ot a ppropriate or av ailable i n r espect of d ecisions a nd administrative ac tions m ade or t aken i n t he ex ercise of or pur suant t o pr ivate powers and duties (i.e contractual and other powers and duties derived from and governed by private law).

[7]The order of mandamus is in form, a c ommand issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty.

[8]Lord Scarman in IRC v National Federation of Self-Employed and Small Businesses Ltd. [1981] All E R 93 at page 111 had this to say: "Mandamus is the most elusive of the prerogative writs and or ders. The nature of the interest an applicant must show, the nature of the duty which is available to enforce, and the persons or bodies to whom it may issue have varied from time to time in its development. It is, of course, a judicial remedy; it is equally clear that it is a remedy to compel performance of a public l egal d uty, t hat i t d oes n ot go t o t he C rown i tself a nd t hat i t i s available only if the applicant shows a sufficient interest."

[9]Counsel submitted that if, as in the instant case, the Applicant/ Plaintiff is applying for judicial review, the corollary is that the Respondent/ Defendant must be acting in the performance of a pu blic legal duty. In this regard, Counsel alluded to the case of R. v Industrial Court, Ex parte A.S.S.E.T. [1964] 3 All E.R. 130. At page 136, Lord Parker said thus: "It has been urged on us that really this arbitral tribunal is not a pr ivate arbitral t ribunal, but t hat, i n ef fect, i t i s und ertaking a publ ic d uty or a quasi-public duty and, as such, is amenable to an order of mandamus. For my part, I am unable to come to that conclusion. It is abundantly clear that they h ad n o dut y t o un dertake t he r eference. I f t hey had r efused t o undertake the reference they could not be compelled to do so. I do not think that the position is in any way different once they have undertaken the r eference. T hey ar e c learly doi ng s omething w hich t hey w ere no t under any p ublic d uty t o do, a nd i n those c ircumstances, I s ee no jurisdiction in this court to issue an order of mandamus to the Industrial Court."

[10]In s imilar v ein, C ounsel r eferred t o t he c ases of Law v National Greyhound Racing Club Ltd. [1983] 3 All ER 300 and Davy v Spelthorne Borough Council [1983] 3 All ER 278. In the f ormer c ase, i t w as held t hat s ince t he s tewards' authority to suspend the plaintiff's licence derived solely from a contract between him and the defendants there was no public element in their jurisdiction as such (although the public might be affected) and therefore their decision was reviewable by prerogative order. It followed that it was not open to the plaintiff to seek the relief by way of judicial review and, conversely, that it was open to him to seek a declaration in the ordinary way. At page 305, Fox L.J. said: "Accordingly, in m y v iew, t he a uthority of t he s tewards t o suspend t he licence of the plaintiff derives wholly from a contract between him and the defendants. I see nothing to suggest that the defendants have rights or duties relating to members of the public as such. What the defendants do in relation to the control of greyhound racing may affect the public, or a section of it, but t he defendants' powers in relation to t he matters with which this case is concerned are contractual. Apart from the alteration of the R ules of t he S upreme C ourt i n 1 978 an d t he pr ovisions of the Supreme Court Act 1981 the prerogative orders would not, in my view, lie to the tribunal set up by the defendants because the powers of such a tribunal derive from contract only. I do not think that the authorities leave scope f or any r eal do ubt as t o t hat. I n R v Criminal Injuries Compensation Board, ex p. Lain [1967] 1 All ER 770 at page 778 Lord Parker CJ said: "The only constant limits throughout were that it was performing a public d uty. Private or domestic t ribunals h ave al ways bee n outside t he s cope o f c ertiorari s ince t heir aut hority is der ived solely f rom c ontract, t hat i s, f rom t he agr eement of t he par ties concerned.'"

[11]In Davy v Spelthorne Borough Council [1983] 3 All ER 278 at page 283, Lord Wilberforce had this to say: "The present proceedings, so far as they consist of a claim for damages for negligence, appear to me to be simply an ordinary action for tort. They do not raise any issue of public law as a l ive issue. I cannot improve on the words of Fox LJ in the Court of Appeal when he said: '…I do not think that the negligence claim is concerned with "the infringement of r ights t o which [ the pl aintiff] w as entitled t o protection u nder p ublic l aw", t o us e Lord D iplock's w ords i n O'Reilly v Mackman. The claim, in my opinion, is concerned with the alleged infringement of t he plaintiff's rights at common law. Those rights are not even peripheral to a public law claim. They are t he es sence of t he entire c laim ( so f ar as negl igence is concerned).' "

[12]Learned Counsel submitted that the line of authorities [supra] are establishing that the nature of the ap plicant's c ause of ac tion i s t he t rue t est f or determining whether an administrative decision or action is subject to or amenable to judicial review or not.

[13]She stated that if the alleged cause of action is an illegal, irrational or procedurally improper administrative decision which does not amount to a tort or a breach of contract or any common law cause of action, the administrative decision can only be governed by Public law. But if the cause of action is an administrative decision which am ounts t o a t ort or br each of c ontract, t he adm inistrative dec ision i s governed by private law. In my opinion, this represents a f air pronouncement of the law.

[14]Counsel s trenuously ar gued t hat i n t he i nstant m atter, t he P laintiff's c ause o f action is in the realm of contract law as is evident in paragraph 9 of his application day of May 1996 which reads as follows: filed on 23rd " By reason of the matters aforesaid NDC have wrongfully and in breach of all tender practices, decided to grant to Quarry Products Limited and or Leftco Limited the said contract, in place and instead of the Plaintiff."

[15]The Plaintiff is aggrieved by a decision of the Defendant to award the contract to other contractors and not to the Plaintiff. The Plaintiff's contention is based on the following particulars: (1) The Plaintiff presented the best tender in all the circumstances. (2) NDC failed and or refused to and or neglected to give the Plaintiff an opportunity to be heard and or to give them a fair hearing with regard to their tender, which was on the face of it, the best tender in all the circumstances. (3) NDC failed to notify the Plaintiffs of their decision not to accept their tender, and or failed to give reasons for their refusal so to, when the P laintiffs' tender w as i n al l t he c ircumstances of t his case, the best. (4) It is the duty of NDC to have regard to the best tender offered to them, in the interest of the Corporation, and in the overall interest of the economic development of St. Lucia.

[16]Counsel f or t he D efendant, M rs. F leming as serted t hat an i nvitor's decision to invite tenders or to accept or reject a tenderer's tender or an invitor's invitation, acceptance or rejection of a tenderer's tender is not a decision or action made or taken in the exercise of or pursuant to a public power or duty derived from and governed by public l aw. I t i s a decision or action m ade i n t he ex ercise of or pursuant to a contractual power or duty derived from and governed by the private law of contract (offer and acceptance etc).

[17]She referred to Halsbury's Laws of England, 4 th edition. At paragraph 1131 it is stated that letters asking contractors to tender for works are invitations to treat; it is generally unnecessary for a building owner or employer to state he does not bind himself to accept the lowest tender. Where such a letter states that the lowest tender will be ac cepted or where the parties have negotiated on that basis, the letter may amount to an offer. Paragraph 1132 reads thus: ACCEPTANCE OF A TENDER: "The unconditional ac ceptance of a t ender gi ves r ise t o a c ontract. A n acceptance is effective when communicated to the tenderer, and if it is reasonable to ac cept t he tender by post s uch ac ceptance i s ef fective when posted."

[18]Counsel asserted that the tender of Quarry Products Limited and or Leftco Limited, another tenderer was accepted and such acceptance gives rise to a contract.

[19]The case of Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council [1990] 3 All ER 25 is very illuminating in this regard. At page 30, Bingham LJ said: ''A tendering procedure of this kind is, in many respects, heavily weighted in f avour of the invitor. H e can i nvite t enders f rom a s m any or as few parties as he chooses. He need not tell any of them who else, or how many others, he has invited. The invitee may often, although not here, be put to considerable labour and ex pense in preparing a t ender, ordinarily without recompense if he is unsuccessful. The invitation t o tender may itself, i n a c omplex c ase, al though again, not h ere, i nvolve t ime and expense to prepare, but the invitor does not commit himself to proceed with the project, whatever it is, he need not accept the highest tender; he need not accept any t ender; he ne ed not gi ve reasons to justify hi s acceptance or r ejection of any t ender r eceived. T he r isk t o w hich t he tenderer is exposed does not end with the risk that his tender may not be the highest (or, as the case may be, lowest). But where, as here, tenders are solicited from selected parties all of them known to the invitor, and where a local authority's invitation prescribes a clear, orderly and familiar procedure (draft contract conditions available for inspection and plainly not open to negotiation, a pr escribed common form of tender, the supply of envelopes designed to preserve the absolute anonymity of tenderers and clearly t o identify t he t ender i n q uestion and a n a bsolute de adline) t he invitee is in my judgment protected at least to this extent: if he submits a conforming tender before the deadline he i s entitled, not as a matter of mere expectation but of contractual right, to be s ure that his tender will after the deadline be opened and considered in conjunction with all other conforming tenders or at least that his tender will be considered if others are.''

[20]Counsel submitted that in the present case, the D efendant w as un der n o s pecific statutory or public duty to invite tenders for works. If the Defendant had refused to invite such tenders, the Defendant could not have been compelled under public law to do so. In inviting such tenders, the Defendant performed a voluntary act and thereby entered the field of private law.

[21]She reiterated that the Defendant was under no specific statutory or public duty to accept or reject tenders for works as for which the Plaintiff contends. She declared that i f t he D efendant ac cepted or r ejected s uch tenders, t he D efendant did s o under private law. Accordingly, the Defendant's decision to acceptance or rejection of such tenders and their powers, duties and r ights in relation to such decision, acceptance and rejection could not have been public acts and m atters derived from or governed by public law. They were and remained private acts and matters derived from and governed by the private law of contract.

[22]Counsel f or t he D efendant al so s ubmitted t hat t he appl ication of t he P laintiff appears to allege that the audi alteram partem rule of natural justice and fairness has been contravened. Counsel argued that this rule is inapplicable in this matter as t he D efendant i s ex ercising a private r ight t o a ward c ontracts a nd not a constitutional, s tatutory or prerogative r ight. S he r eferred t o t he c ase of Chief Immigration Officer v Roger Burnett (1995) 50 WIR 153. At page 161, Sir Vincent Floissac, Chief Justice, in delivering the judgment of the Court said: "According to the audi alteram partem rule, where any authority (person or body of p ersons) intends t o ex ercise a c onstitutional, s tatutory or prerogative power and thereby to make or take a judicial, quasi-judicial or administrative d ecision or action w hich w ill adv ersely af fect t he s tatus, rights, i nterest or l egitimate ex pectations of any other p erson, the authority* is under a common law duty** (and may also have a correlative constitutional or s tatutory r ight) t o t he o bservance o f t hose f ormalities before such a decision or action is made or taken. Those formalities may include notice to the complainant of the specific allegations made against him and a fair and reasonable opportunity for the complainant to answer or rebut those allegations and to make representations in regard to the intended decision or action."

[23]Mrs. F leming s tressed t hat t he P laintiff's ar guments bas ed on hi s l egitimate expectations are wholly irrelevant to the circumstances of this case. According to Counsel, it cannot be said that the Plaintiff had a l egitimate expectation that he would be aw arded the contract because he was the lowest bidder and that he equaled the shortest time to complete the contract. She drew attention to the letter for t he t ender f rom t he E xecutive D irector of t he N ational D evelopment Corporation w hich expressly not ified t he Plaintiff t hat t he C orporation does n ot bind itself to accept the lowest, or any tender. Counsel succinctly submitted that in this context, there could be no such expectation (legitimate or otherwise).

[24]It cannot be disputed that the National Development Act of 1971 (No.9) confers a statutory duty on the Corporation to develop lands in Saint Lucia economically but OMISSION FROM QUOTATION: PARA.22: * ( the complainant) ** ( and may also be under a c onstitutional or statutory duty) to observe certain formalities and the complainant has a correlative common law right she em phasized that t he Act does n ot c onfer any statutory pow er on t he s aid Corporation as t o how t o dev elop l ands. A ccording t o C ounsel, t he f orm of development is left to the Corporation. The Corporation is given the liberty to enter into contracts and into the realm of private law to achieve such development.

[25]In all the circumstances of the case, the Defendant submitted that in order for the court to grant the remedies by way of Judicial Review, the authority in question must be exercising a constitutional, statutory or prerogative power. The Defendant, according to Counsel, was not exercising such a power but was merely exercising a contractual power to award contracts.

[26]Counsel ur ged the Court t o f ind t hat t he D efendant's r ejection of t he P laintiff's tender and the Defendant's decision thereto are matters of a private nature and as such, f all w ithin the r ealm of pr ivate l aw and are n ot pu blic ac ts a nd m atters governed by p ublic l aw. I t i s also t he c ontention of t he D efendant t hat t he remedies by way of judicial review (and in particular, the remedies by way of the prerogative orders of certiorari, mandamus or prohibition) are not available to the Plaintiff where an al ternative remedy exists in private law or under statute. The cases of R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan (1993) 2 All ER 853 and Harley Development Inc. v Commissioner of Inland Revenue (1996) 1 W.L.R. 727 (P.C.) was cited to support this contention. In the latter case, Lord Jauncey of Tullichettle at page 735 stated: " My fourth proposition is that a remedy by way of judicial review is not to be made available where an alternative remedy exists…Judicial review is a collateral challenge: it is not an appeal. Where Parliament has provided for statute appeal procedures, as in taxing statutes, it will only be v ery rarely that the courts will allow the collateral process of judicial review to be used to attack an appealable decision."

[27]Counsel c oncluded her arguments by s tating t hat appl ying t he pr inciples enunciated in these two cases, the Applicant/ Plaintiff will suffer no hardship if he is denied Judicial review. His remedy (if any) is by way of an ordinary action to vindicate and enforce a private or contractual right (if any).

THE APPLICANT/ PLAINTIFF'S SUBMISSIONS

[28]Counsel for the Applicant/ Plaintiff, Mr. Peter Foster argued that the Defendant failed to address the nature of the parties concerned in this transaction and failed to identify properly the nature of the complaint against the Defendant. According to Counsel, the Defendant is not a private person but rather a Statutory Corporation, given life by an A ct of Parliament. The works in question were not private rights but rather, designed to benefit the people of La Tourney in the Town of Vieux Fort.

[29]Mr. F oster s ubmitted t hat non e of t hese facts have be en a ddressed by t he Defendant and in this regard, he referred to the National Development Act of 1971 (No.9) and s pecifically to Sections 4, 1 5, 1 6 an d 1 7, 26, 2 8 a nd 3 0. C ounsel interpreted these sections as c onferring p ublic dut ies on t he D efendant for t he benefit of the people of Saint Lucia. In his comprehensive submissions, Counsel asserted that the National Development Corporation is charged with administering public funds and that when a c itizen of Saint Lucia is affected in any manner in which publ ic f unds ar e di sbursed; t he pr ocedure i nvolved i s s ubject t o j udicial review.

[30]Counsel further submitted that the Defendant is a public body governed by public duties and sanctions and is subject to the approval of the Prime Minister on all contracts. According to him, what transpired was a development by the Defendant to facilitate the Government to build roads and drains for the benefit of the people of La T ourney. The lands at La T ourney are now vested in the Government, Mr. Foster pr onounced. M rs. F leming has tily di smissed t his as an i rrelevant consideration as at the opportune time, the lands were vested in the Defendant. I cannot disagree with Mrs. Fleming.

[31]The complaint of the Applicant/ Plaintiff in this matter is not about the acceptance or r ejection of the t ender in i solation, b ut t he m anner i n w hich the D efendant arrived at its decision and Counsel emphatically declared that this is subject to judicial r eview. H e argued t hat as i n t he i nstant m atter, w here t here i s a fixed contract; the only two variables were the price and the time to carry out the work. On the face of the record, the Plaintiff was the lowest bidder and that he equaled the shortest time to complete the works. Mr. Foster questioned " why did he not win the tender?" He contended that it begs the question to review the decision- making process of the Corporation and this is subject to judicial review.

[32]Counsel f or t he A pplicant/ P laintiff ur ged t he C ourt t o r eject t he proposition expounded by the Defendant in paragraph 1 of her skeletal arguments as it is not a correct interpretation of the law as supported by their authorities. He contended that i t i s di stinguishable f rom t he f acts of t he i nstant c ase and r eferred t o edition) and particularly to paragraph 60 which Halsbury's Laws of England (4th reads: " J udicial r eview i s t he pr ocess by w hich the H igh Court ex ercises i ts supervisory j urisdiction over t he proceedings an d d ecisions of i nferior courts, tribunals and other bodies or persons who carry out quasi-judicial functions or w ho ar e c harged w ith t he per formance of publ ic ac ts a nd duties."

[33]Counsel submitted that the action for judicial review is therefore an application to this C ourt t o exercise i ts supervisory j urisdiction over t he pr oceedings o f t he Defendant Corporation of its decision making process to ensure that the Plaintiff was given a fair treatment by the Defendant Corporation (a statutory body which is a G overnmental ag ency - which i s f inanced i nter al ia by s ubvention f rom t he Government) to which it had been subjected. It is in the public interest that the Defendant in carrying out its functions does so fairly and or has not abused its powers.

[34]The A pplicant/ P laintiff c ontended t hat o n t he f ace of t he r ecord, i t c ould b e properly ar gued t hat t he A pplicant/ P laintiff w as t he l owest bi dder and t hat h e equaled the shortest time of completion of the works and as a consequence, ought to have won the tender. His legitimate expectation was to be treated fairly and that his application would be considered justly. The Applicant/ Plaintiff maintained that it is the procedure in arriving at its decision that is being challenged and which is susceptible t o J udicial r eview; no t t o gr ant t he Applicant/ Plaintiff t he c ontract because any reasonable Authority faced with this decision-making process would have granted the contract to the Applicant/ Plaintiff.

[35]Counsel then embarked on an in depth analysis of the authorities referred to by Counsel f or t he D efendant and d eclared t hat n one of t hese authorities ar e applicable to the instant case. Counsel submitted that the case of Law v National Greyhound Racing Club [supra] dealt with the construction of Section 31 of the Supreme Court Act 1981 and that in the present matter, there is no al ternative remedy to appeal to the Minister.

[36]Mr. Foster stated that the issue in this matter is the impropriety of the Defendant Corporation to award the contract to someone other than the Plaintiff. He asserted that there was a public element: that the tender was to get the best deal for the people of La Tourney which in turn will benefit the people of Saint Lucia. Counsel quoted ex tensively f rom t he t reatises: de Smith on Judicial Review of Administrative Action (1995) and Judicial Review Handbook (2nd Edition) by Michael Fordham. Learned Counsel for the Defendant urged the Court not to place any importance to these treatises as they are the views of academic writers of not what the law is but what it should be. I support the submission of Counsel for the Defendant.

[37]The Applicant/ Plaintiff relied on the cases of R v Wear Valley District Council, ex parte Binks (1985) 2 All ER 699 and R v Panel on Take-overs and Merges, ex parte Datafin [1987] 2 W.L.R. 699. In the former case, Taylor J. at page 703 had this to say: " I t s eems t o m e t hat following t hat decision t he qu estion w hether t he council are regulating a public market or an informal market is irrelevant to the a pplication o f t he r ules of n atural j ustice. M oreover, i n t he pr esent case the Market Place at Crook is conceded to be a place to which the public h as r ight o f r esort at all t imes. I t i s not a hi ghway, b ut i t i s nevertheless a p lace t o which t he public has a r ight of access and on which the council have a discretion whether to allow street traders or not. During the day, the Market Place is in fact used for a market. When it is not being so used between prescribed hours it is used as a public car park for w hich no c harge i s m ade. I t t herefore s eems t o m e t hat t he l ocal authority in granting or revoking licences to street vendors to operate in the Market Place are in exactly the same situation as that envisaged in the Basildon c ase by al l t hree of t he m embers of t he C ourt of A ppeal. It seems to me that there is a public element in the decisions of the council with regard to whom they license and whom they do not license to trade in the Market Place."

[38]In the case of R v Panel on Take-overs and Merges, ex parte Datafin [supra], it was held that the supervisory jurisdiction of the High Court was adaptable and could be extended to any body which performed or operated as an integral part of a system which performed public law duties, which was supported by public law sanctions and which was under an obligation to act judicially, but whose source of power was not simply the consent of those over whom it exercised that power; that although the panel purported to be part of a system of self-regulation and to derive its power solely from the consent of those whom its decision affected, it was in fact operating as an integral part of a governmental framework for the regulation of financial activity in the City of London, was supported by a periphery of statutory powers a nd pe nalties, a nd w as u nder a duty i n ex ercising w hat amounted t o public powers to act judicially; that , therefore, the court had jurisdiction to review the panel's decision to dismiss the applicants' complaint…"

[39]However, Counsel for the Defendant argued that the case of R v Panel on Take- overs and Merges, ex parte Datafin [supra] is distinguishable from the instant matter in that there were two important public features in the Panel's powers and functions namely: (1) Firstly, t he Panel's powers w ere s upported an d s ustained by certain statutory powers and penalties introduced after the Panel came into existence; (2) Secondly, i n ac cepting an d r ejecting t ake-over bi ds, t he P anel was per forming a p ublic f unction w hich affected the rights of a wide range of citizens.

[40]Mrs. Fleming submitted that in the instant matter: (1) The s ource of t he D efendant's pow er t o i nvite and accept an d reject tender is derived solely from the private law of contract; (2) The Defendant's power to invite and accept and reject tenders is not supported by any statutory power; (3) In inviting and accepting or rejecting tenders, the Defendant was not performing any public duty or function; (4) The rejection of a tender affected only three other bidders. It had no public law consequences on a wide range of citizens.

[41]Accordingly, I agree with Counsel for the Defendant that there is a clear distinction between the case of R v Panel on Take-overs and Merges, ex parte Datafin [supra].

[42]Learned Counsel for the Applicant/ Plaintiff stated that the Defendant Corporation in the instant matter did not give the Applicant/ Plaintiff an opportunity to be heard and to date, has not given any reason for the decision reached. Counsel stated that the affidavit of the Executive Director threw no light to the reasons for refusing to award the contract to the Plaintiff. He urged the Court to find that the proper forum for this case is a Judicial Review.

CONCLUSION

[43]The central issue in this matter is whether the Defendant's refusal or failure to accept a tender for works is subject to judicial review. The National Development Corporation A ct of 1971 d oes no t c onfer any s uch powers on t he D efendant Corporation. It seems to me quite clear that when the Defendant invites tenders for work, it is exercising a private function governed by private law of contract.

[44]The law is lucid on invitations to tender. Letters asking contractors to tender for works ar e i nvitations t o t reat; a nd no c ontract of a ny k ind w ould c ome i nto existence unless and until, if ever, the Corporation chose to accept any tender or other offer. It is generally unnecessary for a building owner or employer to state he does not bind himself to accept the lowest tender. Where such a letter states that the lowest tender will be accepted or where the parties have negotiated on that basis, the letter may amount to an offer. In the instant case, the Defendant went a further s tep t o ex pressly state i n a l etter to the A pplicant/ P laintiff t hat " the Corporation does not bind itself to accept the lowest, or any tender "[my emphasis].

[45]While I f ound great force in t he submissions m ade on be half o f t he A pplicant/ Plaintiff, I am how ever p ersuaded by t he ar guments adv anced by Le arned Counsel for the Defendant. In my view, the applicant's grievance is that his tender was not c onsidered i s a c ontractual r ight a nd i t i s i rrelevant t hat i t i s a p ublic authority that is issuing the tender. See: Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council. In pas sing, I am r ather s urprised t hat Le arned Counsel for the Applicant/ Plaintiff did not allude to this case which in my opinion, is on all fours with the present matter.

[46]It is imperative to look not only at the general powers of the Defendant Corporation but also, its specific powers. The specific power which is being challenged is the power of the Defendant to reject tenders. This power is a c ontractual power and the D efendant r eserves t he r ight to award c ontracts t o t he l owest bidder. T he Applicant/ P laintiff h as n ot c onvinced m e t hat a n i nvitation t o t ender an d i ts acceptance and or rejection is governed by public law.

[47]I accordingly agree that the Defendant's rejection of the Applicant/ Plaintiff's tender and the Defendant's decision thereto are matters of a private nature and as such, fall within the realm of private law and are not public acts and matters governed by public law subject to judicial review and I so hold.

[48]As Le arned C ounsel f or the D efendant alluded t o i n h er c losing r emarks, t he Applicant/ Plaintiff will suffer no har dship if he is denied Judicial review. I opined that his remedy (if any) is by way of an ordinary action to vindicate and enforce a private or contractual right (if any).

[49]In the premises, the Notice of Application for leave to apply for Judicial Review filed by the Applicant/ Plaintiff on 23rd day of May 1996 is hereby dismissed. Costs to the Defendant to be taxed if not agreed. [49] Lastly, I would like to commend both lawyers for their sterling presentation and immeasurable assistance to this Court. For this, I am indeed grateful.

Indra Hariprashad-Charles

High Court Judge [ag.]

CIVIL SUIT No. 02 of 1996, Haripershad-Charles, J (Ag.) Delivered: 19/04/00