CHAIRMAN MORO LOCAL GOVERNMENT & ORS v. ADELODUN LAWAL & ORS
(2007)LCN/2205(CA)
In The Court of Appeal of Nigeria
On Monday, the 5th day of February, 2007
CA/IL/49/2005
RATIO
APPEAL: WHETHER BEFORE A FRESH POINT ON APPEAL IS RAISED A LITIGANT SHOULD FIRST SEEK AND OBTAIN THE LEAVE OF THE COURT
It is the rule that to be able to raise a fresh point on appeal, a litigant should first seek and obtain the leave of the Court of Appeal: See A.V.M. Yahaya v. Major Hassan Munchika (2000) FWLR (Pt.17) 145 at 158; Union Bank of Nigeria Limited v. Odusote Bookstore Limited (1995) 9 NWLR (Pt. 42) 588. However, exceptionally, a fresh issue may be raised without leave of the court if it touches on the question of jurisdiction. Also, an Appellate Court can raise suo motu a fresh issue involving a point of law which the Court considers to be fundamental to the entire proceedings: See Dominic Uzo v. Chukwudi Nnalimo (2000) FWLR (Pt. 3) 414 at 427; Din v. Attorney-General of the Federation (1988) 4 NWLR (Pt. 87) 147 at 183; Odekilekun v. Hassan (1997) 10-12 SCNJ 114 at 129. In the case of Nigeria Engineering Works Limited v. Denap Limited (2002) FWLR (Pt. 89) 1062, the Supreme Court held that it will allow a new question to be raised where the question involves a substantial point of law, substantive or procedural, and it is obvious that no further evidence could have been adduced which would affect a decision on it. Again, the Apex Court in the case of Gaje v. Paye (supra) cited by learned Counsel for the Appellants, stated thus per Edozie JSC at page 599 – 600 of the report: “The Respondent in his brief has raised a preliminary objection to the Appellants’ issue No. (v) which poses the question whether the trial Court had the jurisdiction to entertain the Respondent’s claim. The ground for the objection was that the issue was not canvassed before the Court of Appeal and no leave was sought and obtained to raise it as a fresh issue before this Court. The general principle is that when a party seeks to file and argue in this Court any fresh issue not canvassed in the lower courts whether that issue pertains to land or otherwise, leave to file and argue the issue must be had and obtained first. But where the point or issue sought to be raised relates to the issue of jurisdiction, the point or issue can be properly filed and argued with or without the leave of court even if it is being raised for the first time: See Obiakor v. The State (2002) 10 NWLR R (Pt. 776) 612 at 626. ” Again, this court in the case of Michael v. Yuosuo (supra), reiterated this point emphatically at page 103 of the report. See also the recent cases of Mohammed v. Afribank (Nig) PLC (2006) 17 NWLR (Pt.1007) 131 at 155; Oke v. Oke (2006) 17 NWLR (Pt. 1008) 224 at 237. It is therefore beyond question that where a fresh issue raised for the first time on appeal touches on a fundamental point of law such as jurisdiction, a party is allowed to raise same with or without the leave of court. PER JUMMAI HANNATU SANKEY, J.C.A.
JUSTICES:
MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE Justice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
Between
1. CHAIRMAN MORO LOCAL GOVERNMENT
2. MORO LOCAL GOVERNMENT
3. MORO LOCAL GOVERNMENT LEGISLATIVE COUNCIL – Appellant(s)
AND
1. ADELODUN LAWAL
2. AKEJU A. SALMAN
3. RAMAN MOHAMMED
4. AWEDA A. SALIU – Respondent(s)
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This appeal is predicated on the Judgment of Honourable Justice J. F. Gbadeyan of the Kwara State High Court, Ilorin delivered on 30th June, 2005.
The Respondents, as Plaintiffs, filed a suit under the “Undefended List” Procedure against the Defendants, now Appellants, on the 28th April, 2005. Therein they claimed the total sum of N25, 767,174.81k plus 10% of the total sum until the Judgment sum is finally liquidated. The principal sum claimed was said to represent the salaries of the Respondents from June, 1999 to November, 2000, May 2001 to December 2001 and January 2002 to May 2002. Approved furniture allowances and severance gratuities were also included in this claim.
The Writ of Summons containing the Plaintiffs’ claim was supported by an affidavit and exhibits. Upon being served the summons, the Appellants filed a Notice of intention to defend the suit accompanied by an affidavit and supported by exhibits.
The trial Court heard the matter on the Undefended List and took the arguments from both learned Counsel to the Appellants (then defendants) and to the Respondents (then Plaintiffs). In his ruling, delivered on 30th, June, 2005, the learned trial Judge, Gbadeyan, J. stated in effect that no defence on the merit had been disclosed to warrant a transfer of the suit to the General Cause List for hearing. In his own words, he stated this at Page 71 of the printed record thus:
“The authorities are clearly in support of the defendant making credible allegations amounting to a defence on the merit to cause or matter to be transferred to the general cause list from the undefended cause list. It is never granted upon the making of a wild allegation or mere barren assertions or half-hearted defence. See Muobike V. Nwigwe Supra at 635.”
He thereupon proceeded to enter Judgment for the Respondents/Plaintiffs as per the Writ of Summons:
Dissatisfied with this Judgment, the Appellants filed a Notice of Appeal containing two Grounds of appeal and Additional Grounds of Appeal consisting of five Grounds. The Grounds, without their particulars, complain thus:
Original Grounds.
1. The Judgment is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.
2. The Learned trial Judge erred in law and wrongly exercised his jurisdiction in entertaining the Respondent’s case which was/is clearly statute barred.
Additional Grounds.
1. The Learned trial Judge erred in law in giving judgment to the Respondents under the Undefended List when the affidavit in support of the Appellant’s Notice of Intention to defend raised triable issues amounting to a defence on the merit.
2. The Learned trial Judge erred in law and wrongly placed on the Appellants a much higher burden than required by Order 23 Rule 3 of the Kwara State High Court Civil Procedure Rules 1989 when he held that:
“There are several allegations made by the defence.
They are mere allegations.”
3. The Learned trial Judge erred in law when he failed to pronounce on the issue of (sic) agricultural loan taken by the Respondents from the Appellant and later written off which issue was duly canvassed before him.
4. The Learned trial Judge erred in law and on the facts when he held that:
“There is no iota of documentary evidence that a total of the loan and overdraft facilities of N27 Million applied for were actually approved and granted.”
5. The Learned trial Judge erred and misdirected himself when he held that there is no evidence that the Schedule of payment was honoured.
In pursuance of the Rules of this Court, both parties filed their Briefs of Argument. The Appellant’s Brief of Argument dated 15th August, 2005 was filed on 15th September, 2005. On receipt of the Respondent’s Brief of argument, they filed a Reply Brief dated 7th November, 2005 and filed on 8th November, 2005. Both Briefs of argument were fully adopted and relied upon by Mr. Obi Okwusogu, learned Counsel for the Appellants on the 7th November, 2006. In addition, learned Counsel filed a list of additional authorities which contains four authorities. These he again relied upon, particularly Nos 1, 3 and 4 on the list. He therefore urged the Court to allow the appeal.
On his own part, Alhaji Aliyu Salman, SAN relied on the Respondent’s brief which was deemed filed out of time with the leave of Court on the 17th October, 2005. In adopting the said brief as his arguments in this appeal, the learned Senior Advocate made the following oral submissions. Replying especially to Issue NO.2 in the Appellants’ brief, he referred to paragraphs 5.02, 5.03, 5.06 and 5.08 at pages 4 – 5 of the Respondent’s Brief, and contended that the cases cited by the Appellants which relied upon S. 178 of the Local Government Law did not take into account the fact that S. 178 of the said Law had been repealed.
He submitted that this Law had since been repealed by S.18 of the Limitation Law of Kwara State Cap. 89. He pointed out that the Respondents took out an action at the High Court 35 months’ after they had been deprived of their salaries and allowances when they left the office. Since the Limitation Law provides for 60 months, they were within time. Consequently, he prayed that the appeal be dismissed.
From these Grounds of Appeal, the Appellants in their brief of argument distilled the following issues for determination by this court:
“i Whether the Respondent’s action which was filed on 28th April, 2005, that is, 35 months after they had left the service of the appellants was/is not statute barred – Ground 2 of the Original Grounds of Appeal.
ii Whether or not the trial court was right in holding that the allegations made by the defence did not amount to a defence on the merit and in entering Judgment for the Respondents – Original Ground 1 and additional Grounds 1, 2, 4 and 5.
iii Whether or not the trial court has a duty to pronounce on all issues properly raised before it and whether the trial court’s failure to pronounce on the issue of Agricultural loan duly raised by the defence did not amount to a miscarriage of justice.”
The Respondents in turn formulated the following three (3) issues for our determination in this Appeal:
“i. Whether the Appellants who did not at the trial of this suit raise the plea of statute of Limitation can raise same in this appeal.
ii. Whether the Respondents’ suit was statute barred.
iii. Whether the learned Judge of the trial High court was right in entering Judgment in favour of the Respondent on the Undefended List regard being had to the affidavit evidence and materials placed before him more particularly Exhibit ‘E’ in support of the affidavit in support of the Writ.”
I adopt the issues formulated by the Appellants in their Brief of Argument since they adequately cover all the Grounds of Appeal. In addition however, I will take the preliminary issue raised by the Respondents’ Counsel and formulated as Issue One in the Respondents’ brief. This issue must of necessity be taken first as it borders on the competence of the suit before the Court and therefore touches on jurisdiction.
RESPONDENTS’ ISSUE ONE
The preliminary issue raised by the Respondents as their Issue One is:
“Whether the Appellants who did not at the trial of this suit raise the plea of Statute of Limitation can raise the same in this appeal.”
The Learned Senior Advocate for the Respondents in their brief submitted that the Appellants never raised the issue of the applicability of the provision of S. 178 of the Local Government Law, Laws of Kwara State Cap. 92 at the Court below, neither did the Appellants’ affidavit in support of their Notice of Intention to defend raise the issue that the action is statute barred. He contended further that the Appellants’ arguments in the Court below did not touch on the issue of the applicability of the Statute of Limitation to enable the Appellants to raise it as of right as they have purported to do in their Brief. This therefore renders the issue of the applicability of the Statute of Limitation incompetent. He submitted that fresh points of law or issues which were not canvassed in the Court below cannot be raised for the first time in the Court of Appeal except with the leave of the Court. He relied on Atoyebi v. Government of Oyo State (1994) 5 S.C.N.J. 62 at 78. He further submitted that an issue which was not raised or canvassed at the trial Court and no leave was sought and obtained to argue it at the Appellate Court renders such issue incompetent and should not be entertained. He relied on Udo v. C.S.N.C. (2001) 4 NWLR (Pt.732) 116 at 166 and Tahir v. Udeagbala Holding Limited (2004) 2 NWLR (Pt. 857) 438 at 447.
Learned Senior Advocate therefore submitted that Issue NO.1 in the Appellants’ brief is incompetent since leave of this Court was not sought and obtained to raise the issue of the applicability of S. 178 of the Local Government Laws of Kwara State Cap. 97. He urged the court to strike out Issue No. 1 formulated by the Appellants which is premised on this.
The Appellants addressed this point in the Appellants’ Reply Brief.
While they concede to the point that a fresh issue may only be validly raised on appeal with the leave of the Appellate Court, they counter that there is an exception to this general rule. This exception, they submit is when the fresh issue raised relates to or touches on the jurisdiction of the trial Court. They submit that where, as in this case, an issue bordering on the jurisdiction of the trial Court to entertain a matter at all is raised for the first time on appeal, leave of the Court of Appeal is not mandatory. They rely on the cases of Kumusuonye Michael v. Amalanyo Yuosuo and anor (2004) 15 NWLR (Pt. 895) 9 at 103; Isaac Gaje and 2 ors v. Emmanuel Paye (2003) 8 NWLR (Pt. 823) 583 at 599 – 600. The Appellants argued that as an issue of jurisdiction, it is not necessary for the Appellants to seek leave of this court to file and argue the point of jurisdiction. They contended that the cases relied upon by the Respondents in this regard are inapplicable since the fresh issues sought to be raised therein did not relate to jurisdiction. They therefore urged the court to sustain the competence of Issue NO.1 in the Appellants’ brief and Ground 2 of the Original Grounds of Appeal to which this issue is tied.
From a perusal of the record of proceedings of the court below, it admits of no argument that the issue now raised by the Appellants revolving around the plea of the Statute of Limitation was never raised at the trial. That being the case, the question that begs for an answer is: are the Appellants at liberty to now raise the issue for the first time before this Court? Indeed, the general rule is as stated by the Learned Senior Advocate. It is the rule that to be able to raise a fresh point on appeal, a litigant should first seek and obtain the leave of the Court of Appeal: See A.V.M. Yahaya v. Major Hassan Munchika (2000) FWLR (Pt.17) 145 at 158; Union Bank of Nigeria Limited v. Odusote Bookstore Limited (1995) 9 NWLR (Pt. 42) 588. However, exceptionally, a fresh issue may be raised without leave of the court if it touches on the question of jurisdiction.
Also, an Appellate Court can raise suo motu a fresh issue involving a point of law which the Court considers to be fundamental to the entire proceedings: See Dominic Uzo v. Chukwudi Nnalimo (2000) FWLR (Pt. 3) 414 at 427; Din v. Attorney-General of the Federation (1988) 4 NWLR (Pt. 87) 147 at 183; Odekilekun v. Hassan (1997) 10-12 SCNJ 114 at 129.
In the case of Nigeria Engineering Works Limited v. Denap Limited (2002) FWLR (Pt. 89) 1062, the Supreme Court held that it will allow a new question to be raised where the question involves a substantial point of law, substantive or procedural, and it is obvious that no further evidence could have been adduced which would affect a decision on it.
Again, the Apex Court in the case of Gaje v. Paye (supra) cited by learned Counsel for the Appellants, stated thus per Edozie JSC at page 599 – 600 of the report:
“The Respondent in his brief has raised a preliminary objection to the Appellants’ issue No. (v) which poses the question whether the trial Court had the jurisdiction to entertain the Respondent’s claim. The ground for the objection was that the issue was not canvassed before the Court of Appeal and no leave was sought and obtained to raise it as a fresh issue before this Court. The general principle is that when a party seeks to file and argue in this Court any fresh issue not canvassed in the lower courts whether that issue pertains to land or otherwise, leave to file and argue the issue must be had and obtained first. But where the point or issue sought to be raised relates to the issue of jurisdiction, the point or issue can be properly filed and argued with or without the leave of court even if it is being raised for the first time: See Obiakor v. The State (2002) 10 NWLR R (Pt. 776) 612 at 626.”
Again, this court in the case of Michael v. Yuosuo (supra), reiterated this point emphatically at page 103 of the report. See also the recent cases of Mohammed v. Afribank (Nig) PLC (2006) 17 NWLR (Pt.1007) 131 at 155; Oke v. Oke (2006) 17 NWLR (Pt. 1008) 224 at 237.
It is therefore beyond question that where a fresh issue raised for the first time on appeal touches on a fundamental point of law such as jurisdiction, a party is allowed to raise same with or without the leave of court.
The contention of the Appellants on the issue of jurisdiction in the instant appeal is that the Respondents’ suit, filed 35 months after the cause of action arose, is statute barred by virtue of S. 178 of the Local Government Law, Cap 92 Laws of Kwara State. This is clearly a point of law which goes to the competence of the suit before the trial Court and therefore the jurisdiction of the Court below to have entertained same.
The issue of whether or not an action is statute barred involves the vexed question of the competence of a court to determine the entire suit and any defect therein means the proceedings are a nullity as such defect is extrinsic to the adjudication. This was the finding of the Supreme Court in the case of Araka v. Ejeagwu (2000) 15 NWLR (Pt.692) 684. By virtue of the consistent pronouncements of both the Supreme Court and this Court on the issue, the Appellants are permitted to raise and canvass this issue of law even without having first sought the leave of court to do so.
The point of law being raised is fundamental and an issue which is intrinsic to jurisdiction. I therefore answer Issue NO.1 formulated by the Respondents in the affirmative.
Having put this matter to rest, I now move on to consider the three issues for determination formulated by the Appellant.
Issue One:
Issue one in the Appellants’ brief which deals with essentially the same issue as Issue two in the Respondents’ brief is:
“Whether the Respondent’s action which was filed on 28th April, 2005, that is 35 months after they had left the service of the Appellants, is/was not statute-barred”
This issue arises from Ground 2 of the Grounds of Appeal. In the brief of argument, learned Counsel for the Appellants contended that since the cause of action arose in May, 2002, (when the Respondents ceased to hold office as elected officials of the Appellants), and the action was filed on 28th April, 2005, a period of 35 months had elapsed in between. Therefore, by virtue of Section 178 of the Local Government Law Cap 92 Laws of Kwara State, the suit filed was statute-barred and therefore incompetent ab initio. He relied on the cases of: Fayemi v. Local Government Service Commission Oyo State and Anor (2005) 6 NWLR (Part 921) 280 at 304; Babalola v. Osogbo Local Government (2003) 10 NWLR (Pt. 829) 465 at 482. In addition, learned Counsel submitted that the suit being incompetent ab initio, the lower Court lacked the jurisdiction to entertain same, let alone grant the reliefs sought by the Respondents. He relied on the case of Madukuolu v. Nkemdilim (1962) 2 SCNJ 341. He submitted that Section 178 of the Local Government Law of Kwara State is a clear feature in the case which prevented the trial Court from exercising the jurisdiction which it purported to exercise in giving judgment to the Respondents. Consequently, he urged the Court to hold that the trial Court lacked the jurisdiction to entertain the Respondents’ case in that this action was filed 35 months after the accrual of the cause of action and therefore flies in the face of the provision of Section 178 of the Local Government Law of Kwara State and is statute barred. He therefore urged the Court to resolve Issue NO.1 in the affirmative.
On his part, learned Counsel for the Respondents contended that Section 178 of the Kwara State Local Government Laws Cap 92 Laws of Kwara State which came into effect on 1st September, 1976 is a repealed provision and it is not applicable to this suit. He submitted that the existing limitation law is the Kwara State Limitation Law Cap 89 Laws of Kwara State 1994 which came into effect on 1st October, 1987. In particular, he referred to Section 44 thereof which provides thus:
“Any enactment relating to the limitation of action which were in force in the State immediately before the commencement of this Edict shall cease to apply.”
By this, it is his contention that Section 44 of the Limitation Law of Kwara State expressly repealed the provision of Section 178 of the Local Government Law of Kwara State or any other law on Limitation in force before it came into effect. He therefore submitted that the law which regulates this suit is Section 18 of the Limitation Law of Kwara State Cap 89.
The provision provides:
“No action founded on contract, tort or any other action not specifically provided for in Part I and II of this Edict shall be brought after the expiration of five years from the date on which the cause of action accrued. ”
Learned Counsel called in aid the lead Judgment of Aderemi, JCA (as he then was), in the case of Leadway Assurance Co. Ltd. v. T.U.C. Ltd (2005) 5 NWLR (Pt. 919) 539 at 559-560 where he stated thus:
“Where the provisions of two statutes are plainly inconsistent that effect cannot be given to both at the same time, a repeal of the provisions of the earlier statute by implication on the operation of the subsequent statute is inevitable. In other words, the later statute will be read as having impliedly repealed the former… ”
Learned Counsel further contended that since the relationship between the Respondents and the 2nd Appellant at the material time was one of master and servants which is regulated by the contract of employment, it falls within the provision of Section 18 of the Limitation Law of Kwara State Cap 89. He submitted that if the Respondents instituted this suit 35 months after they left office and the relevant Limitation Law allows them 60 months, they are well within time allowed by the relevant statute. He therefore urged the Court to resolve this issue in the negative and hold that this suit is not statute barred.
In the Appellants’ Reply brief, learned Counsel for the Appellants submitted that the contention by the Respondents is misconceived. He submitted that whereas Section 18 of the Limitation Law of Kwara State is a general provision, Section 178 of the Local Government Law is a special provision applicable specifically to actions against Local Governments. He submitted that the law is now trite that, in the construction of general and special provisions in enactments covering similar subjects, the general clause does not and cannot be made to extend to those things specially provided for. He relied on the Latin maxim:
“Generalis causula non porrigitur ad ea quae antea pecialiter sunt comprehensa.”
He cited the case of Federal Mortgage Bank of Nigerian v. P.N. Onoh (2002) 9 NWLR (Pt. 773) 475 where the said Latin maxim was given a judicial stamp. At page 489 of the report, Uwaifo, JSC stated inter alia thus:
“The law is that where there is a special provision in a statute, a later general provision statute capable of covering the same subject matter is not to be interpreted as derogating from what has been specially provided for individually, unless an intention to do so is unambiguously declared. To do otherwise is to indirectly use a general provision to alter the intention to provide specially by way of an exception for a subject matter”.
The learned Jurist had cited with approval the finding of Bairamian, J. in the case Bamigboye v. Administrator-General (1954) 12 WACA 616, where the latter held thus:
“It is an accepted canon of construction that where there are two provisions, one special and the other general, covering the same subject-matter, a case falling within the words of the special provision must be governed thereby and not by the terms of the general provision.
The reason behind this rule is that the legislature in making the special provision is considering the particular case, hence the special provision forms an exception importing the negative …. ”
Learned Counsel submitted that the intention of the legislature in making Section 178 of the Local Government Laws of Kwara State was/is to specially and specifically provide for actions against Local Governments outside of and by way of exception to the general Limitation Law of the State. He submitted that the suggestion by the Respondents that the Court should employ the use of the general provision, i.e. Section 18 of the Limitation Law of Kwara State, to alter the intention of the legislature to provide specially for actions against Local Governments flies in the face of the canon of construction as well as judicial authorities.
Learned Counsel therefore submitted that there is no inconsistency whatsoever in the two statutes. He contended that whilst the Limitation Laws of Kwara State deals on the general, the legislature in its wisdom has decided to bring up an exception in the form of Section 178 of the Local Government Laws of Kwara State. He submitted that it is axiomatic that “To every general rule, there are exception(s)”; and where exceptions are intentionally created as in this case, it is sheer “crying wolf” to suggest that they amount to inconsistencies.
In response to the arguments of the Respondents that Section 44 of the Limitation Law, Cap 89 has repealed Section 178 of the Local Government Law, Cap 92 because the latter came into effect on 1st October, 1987 while the former came into force on 1st September, 1976, learned Counsel for the Appellants submitted that the repeal of a statute is never presumed or implied. A Statute is not repealed simply because a similar statute dealing with the same subject is subsequently enacted. Instead, there must be clear and direct provision(s) in the subsequent enactment repealing an existing one. For this he relied on the cases of Asims (Nig) Ltd v. L.B.R.B. Development Authority (2002) 8 NWLR (Pt. 769) 349 at 363 – 365, KLM Royal Dutch Airlines v. Mrs. Annah Naya Kumzhi (2004) 46 WRN 59 at 84 per Ogbuagu, JSC.
Learned Counsel went on to submit that it could not be the intention of the legislature that the Limitation Law will repeal the local provisions as any repeal clause in the Limitation Law can only, on the ejusdem generic rule, apply to a previous Limitation Law. If it were intended to affect other statutes such as the Local Government Laws, the Legislature would have expressly stated it as such. Learned Counsel finally drew the Court’s attention to the fact that both the Limitation Law of Kwara State and the Local Government Laws of Kwara State are contained in the same volume 2 of the Laws of Kwara State, 1994 as Caps 89 and 92 respectively. He thereby drew the conclusion that Section 178 of the Local Government Laws, Cap 92 is therefore extant and existing and the two laws have not repealed one another directly or indirectly.
On my part, I have carefully scrutinized the two existing Laws in contention, side by side with the judicial pronouncements in decided cases on the point. I believe that for clarity of argument, it is pertinent to set out the provisions of the said Laws. The Local Government Law Cap 92 Laws of Kwara State of Nigeria 1994 has its commencement date as 1st September, 1976. The provision relevant to this issue is Section 178, and it provides thus:
“178. When any suit is commenced against any Local Government for any act done in pursuance or execution or intended execution of any law of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority, such suit shall not lie or be instituted unless it is commenced within six months next after the act, neglect or default complained of, or in the case of a continuance of damage or injury within six months after the ceasing thereof’.
Whereas Section 18 of the Limitation Law, Cap 89 Laws of Kwara State of Nigeria, whose commencement date is 1st October, 1987 states thus:
“18. No action founded on contract, tort or any other action not specifically provided for in Part I and II of this Edict shall be brought after the expiration of five years from the date on which the cause of action accrued. ”
Before going into the issue of which of the two provisions is applicable to this case and whether or not the Respondent’s suit is statute-barred, it is pertinent to state from the onset that it is not in issue, as it is mutually agreed, that whereas the cause of action in this case arose in May, 2002 when the Respondents ceased to hold office as elected officials of the Appellants, the suit was filed at the High Court on the 28th April, 2005. Thus, the suit was filed clearly 35 months after the cause of action arose. If the applicable law is Section 178 of the Local Government Law, then, without much ado, the suit would clearly be statute barred. However, if it is found to be Section 18 of the Limitation Law, then it would have been filed within time prescribed by law and therefore competent before the court. This is because, even while the wordings of Section 178 of the Local Government Law are express and clear, it has received judicial interpretation in some cases. Chief among such authorities are: Fayemi v. Local Government Service Commission, Oyo State and Anor (Supra) and Babalola v. Osogbo Local Government (Supra). As was pointed out by learned Counsel to the Appellants, these two cases also related to claims for arrears of salaries and/or allowances by persons who had been officers of the various Local Governments. Section 172 of the Local Government Law of Oyo State interpreted therein is in pari materia with Section 178 of the Local Government Law of Kwara State now under consideration. This Court, in the case of Fayemi v. Local Government Service Commission, Oyo State, held that Section 172 of the Local Government Law of Oyo State, 1978 which provides a six month time limit for actions against the Local Government Council is a condition precedent which relates to the jurisdiction of the court.
“Failure to comply with it touches on the capacity of the trial court to be properly seized of the case before it, because failure to satisfy a condition precedent in any litigation is patently fatal to jurisdiction which is foundational as it renders such action incurably incompetent. The consequences of non-compliance by the plaintiff is detrimental to the action instituted as it robs the Court of jurisdiction to entertain the action. ”
This Court, again in an earlier case of Babalola v. Osogbo Local Government (Supra), wherein the Appellant had sought a declaration that he was entitled to certain prescribed salaries and allowances, was consistent in finding that an action brought against a Local Government which is filed outside of the six month period stipulated by the Local Government Law is incompetent ab-initio as it is statute-barred.
Consequently, it is my finding that by virtue of Section 178 of the Local Government Law Cap 92 Laws of Kwara State, 1994, an action against any Local Government must be commenced within six months next after the act or, in the case of a continuance of damage or injury, within six months after the ceasing thereof.
Now, having established the purport of Section 178 of the Local Government Law, the submission of the learned Counsel for the Respondents is that this law is no longer operational as it has since been repealed by Sections 18 and 44 of the Limitation Law, Cap 89 Laws of Kwara State, 1994. Having already reproduced Section 18 of the said Law above I will set out only Section 44 hereunder. It provides:
“44. Any enactments relating to the limitation of action which were in force in the state immediately before the commencement of this Edict shall cease to apply.”
Learned Counsel for the Respondents has submitted that the above provision has expressly repealed the provision of Section 178 of the Local Government Law of Kwara State or any other law on limitation before it came into effect. However, I beg to differ. The wordings of this Law certainly do not expressly repeal Section 178 of the Local Government Law. Instead, it is clearly a general provision which refers to “Any enactments relating to the limitation of action … ” The Courts have since drawn a distinction between general provisions and special provisions. Section 178 of the Local Government Law is a special provision relating specifically to suits brought against Local Governments, while Section 18 of the Limitation Law is general and relates to other suits founded in contract, tort, etc. In the case of Federal Mortgage Bank of Nigeria v. Onoh (2002) FWLR (Pt 107) 1244 at 1252 – 1253, the Apex Court made up of Kutigi JSC, Ogbuegwu JSC, Mohammed JSC, Uwaifo JSC and Ejiwunmi JSC drew a very clear distinction and so, put the matter beyond question. In the lead Judgment delivered by Uwaifo, JSC, the Supreme Court held thus:
“The law is that where there is a special provision in a statute, a later general provision in the same statute capable of covering the same subject matter is not to be interpreted as derogating from what has been specially provided for individually unless an intention to do so is unambiguously declared. To do otherwise is to indirectly use a general provision to alter the intention to provide specially by way of an exception for a subject matter ….
The Latin maxim is: Generalis clausula non purrigitur ad ea quae antea specialiter sunt comprehensa (A general cause does not extend to those things which are before specially provided for).
In Bamgboye v. Administrator-General (1954) 14 WACA 616, Bairamian, J. explained the principle when he observed at page 619 as follows:
“It is an accepted canon of construction that where there are two provisions, one special and the other general, covering the same subject matter, a case falling within the words of the special provision must be governed thereby and not by the terms of the general provision.
The reason behind this rule is that the legislature in making the special provision is considering the particular case and expressing its will in regard to that case; hence the special provision forms an exception importing the negative; in other words the special case provided for in it is excepted and taken out of the general provision and its ambit; ‘the general provision does not apply’…..The above rule of construction applies equally, of course, when the special and general provisions are enacted in the same piece of legislation…”
I cannot say it any better than the erudite Jurist has, save to find in accordance with this holding by which I am equally bound. Consistent with the finding of the Supreme Court on this, it will be fallacious to contend that the two provisions are inconsistent. Instead, Section 178 of the Local Government Law is a special provision providing for a specific body(ies), while Section 18 of the Limitation Law is a general provision which provides for all other situations. It is therefore my finding on this score that Section 178 of the Local Government Law, Cap 92 Laws of Kwara State is extant, existing and applicable to this case.
Learned Counsel for the Respondents has equally submitted that by the provision and operation of Section 44 of the Limitation Law Section 178 of the Local Government Law has been expressed repealed. A close examination of Section 44 of the said Law however does not bear out this submission, as the Law does not anywhere therein expressly abrogate Section 178 of the Local Government Law. Instead, it speaks only in general terms of “any enactment relating to the limitation of action … ” The law is that the repeal of a statute is never presumed or implied. It is always desirable that the repeal must be via a clear and direct provision in a subsequent enactment repealing an existing one. This was the finding of this court in the case of ASIMS (Nig) Ltd v. Lower Basin Development Authority (Supra), where Tanko Muhammad, JCA, (as he then was), held thus at Page 110 – 111 of the report:
“A repeal is never presumed or implied but must be direct …. Secondly, learned counsel for the appellant has failed to particularize the specific provision of cap 407 LFN which repealed the provision of the Regional Law.
Thus the general principle of law that a statute is not repealed simply because a similar statute dealing with the same subject is enacted still holds good and valid.
Ezeji v. Ike (1997) 2 NWLR (Pt. 486) 206; Oyeyinka v. Osague (1994) 2 NWLR (Pt. 328) 517.”
The law is now settled that where it is the intention of a later statute to modify or repeal an earlier one, such intention must be clearly stated or unequivocally deducible from the provisions of the later statute. In the case of Abacha v. Fawehinmi (2000) FWLR (Pt. 4) 533, a full complement of the Supreme Court comprising of Belgore, JSC, (as he then was) Ogundare, JSC, Uthman Mohammed, JSC, Iguh, JSC, Achike, JSC, Uwaifo, JSC and Ejiwunmi, JSC, held that whereas the State Security (Detention of Persons) Act expressly suspended the operation of Chapter IV of the 1979 Constitution on the Fundamental Rights of the Citizens of this country, no mention was made of the African Charter, Cap. 10, Ogundare JSC thus held at page 589 of the report:
“Be it noted that while Chapter IV of the Constitution was suspended for the purposes of the Act, no mention was made of Cap. 10 which was then merely in existence I would think that Cap. 10 remained unaffected by the provisions of section 4 (1). A treaty is not deemed abrogated or modified by a later statute unless such purpose has been clearly expressed in the later statute”
Again at page 599 – 560 of the same report, Iguh, JSC stated thus:
“… It is crystal clear that whereas the provisions of Chapter IV of the Constitution of the Federal Republic of Nigeria, 1979 deals with fundamental human rights were expressly suspended for the purpose of the State Security (Detention of Persons) Act by section 4 thereof, the provisions of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, 1983, Cap. 10, Laws of the Federation of Nigeria, 1990 were left undisturbed and therefore unaffected”.. In my view, the law makers, if they had intended to suspend or repeal the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, 1983 along with Chapter IV of the Constitution of the Federal Republic of Nigeria, 1979 would have specifically so stated by clear words.”
Therefore, although a later statute may suspend or repeal an earlier one either expressly or by implication, suspension or repeal by implication is not, as a general rule favoured by the courts in the absence of clear words to that effect. I am not unmindful of the findings of this Court in the case of Leadway Assurance Co. Ltd v. T.U.C. Ltd (Supra) cited by learned Counsel to the Respondent. This was a suit in which a contract of marine insurance to cover the Respondent’s cargo was concluded between the Appellant and the Respondent on the 7th March, 1997. The Respondent however paid the premium for the policies of insurance on the 10th and 7th March, 1997. However, before this payment, the ship carrying the Respondent’s cargo got lost at sea with all the goods of the Respondent on the 9th March, 1997. By Section 23 of the Marine Insurance Act, 1962, such a contract of Marine Insurance shall be deemed to be concluded when the proposal of the assured is accepted by the insurer, whether the policy is issued or not. However, by a later law, Section 50 of the Insurance Act, 1997, the receipt of an insurance premium shall be a condition precedent to a valid contract of insurance, and there shall be no cover in respect of an insurance risk unless the premium is paid in advance. The argument before the Court was that the former law was repealed by the later law. Faced with this dilemma, Omage, JCA, delivering the lead Judgment, held inter alia thus at page 556:
“Generally, a statute is definite as’ to what it repeals by its enactment; and a schedule may recite the existing law repealed. … The courts in the performance of their functions as interpreters of the law usually lean against implying the repeal of law by implication. However, where the provisions of the two Acts are so plainly repugnant, one to the other provision, and demand inconsistent conclusion that effect cannot be given to both at the same time, a repeal of the earlier provision of the law by implication is inevitable…”
(Underlining mine for emphasis).
In his contributory Judgment, Aderemi, JCA, (as he then was), therefore also opined thus:
“I must say that there are no express words in Section 50 of the Insurance Decree NO.2 of 1997 suggestive of repealing the provisions of Section 23 of Insurance Act of 1961. The two legislations would however be in my view, to be addressing the same subject matter generally but they are both inconsistent. In such a situation of such inconsistency, an implied repeal of statutes can be imputed. Then what is the principle guiding implied repeal of statutes and its effect? The answer is simply this: where two Acts are inconsistent or repugnant, the latter will be read as having impliedly repealed the earlier…. ”
From the re-hash of the facts of the above -cited case and the ratio decidendi of the Judgment, it is clear that the case is clearly distinguishable from the instant appeal as it is not on all fours. In the case cited, the two provisions of law on the same subject matter were totally inconsistent with each other, and could not, without violence being done to one, co-exist together. One of the laws, of necessity, had to give way. And that explains why the learned Jurists were forced to depart from the general rule in order to avoid an absurdity. In the instant appeal, there is no such inconsistency. Instead, it is a case of a specific legislation made to cater for special situations, and a general legislation made for other situations. It is for this reason, and for others earlier on stated, that I respectfully decline to follow the decision of this court in the case of Leadway Assurance Co. Ltd. v. T.U.C. Ltd (Supra), as it was made to cater for an exceptional situation.
It is therefore for all the foregoing reasons that I find that Section 178 of the Local Government Law, Cap 92 Laws of Kwara State, 1994 is still extant and existing. That being the case, it is a condition precedent to the action. The Respondents in this appeal were therefore required by law to have filed their suit against the Appellants within six months after the cause of action accrued. Going by the facts stated by the Respondents themselves in paragraphs 1-3 of their Writ of summons, the cause of action accrued in May, 2002. However, from the court’s endorsement on the said Writ, the suit was not filed until the 18th March, 2005, 35 months after the cause of action accrued. This is clearly in breach of Section 178 of the Local Government Law. Consequently, I find that the suit is statute barred and therefore incompetent ab initio. I resolve the first issue in favour of the Appellants.
Issue Two.
Whether or not the trial Court was right in holding that the allegations made by the defence did not amount to a defence on the merit and in entering Judgment for the Respondents.
Original Ground 1 and Additional Grounds 1, 2, 4 and 5.
On this issue, Learned Counsel for the Appellants submitted that, this suit, being a matter commenced on the Undefended List, the Appellants filed a Notice of Intention to defend the action, in consonance with the Rules of Court, wherein they set out sundry defences. He referred to pages 46 – 61 of the record of proceedings for this, and in particular to paragraphs 8-19 of the Appellants’ affidavit at pages 48 – 49 of the record. He summarized the issues thrown up by the Appellants’ affidavit evidence as follows:
(i) That the Respondents took bank loans for the repayment of staff salaries but diverted the loan proceeds.
ii) That the Respondents have refused to account for the loan proceeds in excess of N50 million inspite of repeated demands by the Appellants.
iii) That the Respondents obtained Agricultural loans from the Appellant which they later wrote off, in consideration of their unpaid salaries.
(iv) That the Respondents were actually paid their salaries for the months of October, November and December, 2000 which same salaries are included in the claim before the court”.
Learned Counsel complained that in the face of these facts, the learned trial Judge held at page 71 of the record that:
”There are several allegations made by the defence.
They are mere assertions …”
Learned counsel also referred to the Bank loan proceeds which the Appellants allege the Respondents diverted to themselves in paragraphs 8 – 12 of the Appellants’ affidavit. This assertion, they buttressed with letters by which the loans were obtained as in Exhibits A1 and A2 at pages 51 and 52 of the record. The averments in their affidavit are to the effect that the Respondents have refused to account for the loan proceeds which is in excess of N50 Million. He contended that this, at the very least, amounts to a triable issue and sufficient ground for the Court to have transferred the case to the General cause list for evidence to be called. Learned Counsel submitted that the ”Undefended list procedure’ is not intended to short circuit a defendant who has valid and provable facts that are clearly alleged. He further submitted that once a defendant’s affidavit casts doubt on the plaintiff’s case, the defendant should be let in to defend. For these propositions of law, he relied on the cases of: Job Charles Nigeria Limited v. Okonkwo (2002) FWLR (Pt. 117) 1067 at 1071; Frank Muobike v. Nwigwe (2000) 1 NWLR (Pt. 642) 620 at 638; Anumobi v. Wezozo (2002) 12 NWLR (Pt. 835) 617 at 636 and 639; and Fesco Nigeria Limited v. N.R. and C.P. Co. Ltd (1998) 11 NWLR (Pt. 573) 227 at 233.
Learned Counsel further submitted that since the Appellant’s affidavit cast doubt on the Respondents’ case, the Appellants ought to have been let in to defend the case. He therefore urged the Court to resolve ‘Issue No. two’ in the negative against the Respondents.
On his own part, Learned Counsel for the Respondents submitted that the discretion to determine whether a triable issue has been disclosed or not in an affidavit of Intention to defend a suit instituted under the Undefended list is strictly that of the trial Court and not of the Appellate Court. The decision must be gathered from within the confines of the affidavit of Intention to defend and not from outside. He relied on the case of China Goe Eng. Co. v. Nambative (2001) 2 NWLR (Pt. 698) 529 at 544. He contended that Exhibits “A1” and “A2” to the Appellants’ affidavit at pages 51 – 52 of the record are mere applications for overdraft facilities with no evidence that same were granted. Also, that by Exhibit ‘B’ at pages 53 – 60 of the record, the Agricultural loan was granted to the Respondents as well as to other staff of the 2nd Appellant and some farmers in the Local Government, and that this was in consideration that salaries were not paid. These loans were written off not in lieu of salaries but in consideration of poor harvest and non-payment of salaries to the Respondents and other staff. In respect of Exhibit ‘C’ to the Appellants’ affidavit at page 61 of the records, learned Counsel submitted that it is merely a schedule of payment with no evidence to show that such a request was met by the bank. Learned Counsel instead relied on the Exhibit ‘E’ attached to the Respondents’ affidavit in support of the Writ which was prepared by the Appellants on 27th June, 2003, one year after the Respondents had left service. Learned Counsel therefore submitted that it is not sufficient for the defendant to depose in an affidavit that he has paid the sum claimed by the plaintiff. He must show proof of such payment. He referred to the cases of Abdullahi v. Buhari (2004) 17 NWLR (Pt. 902) 278 at 303 and Tahir v. Undeagbala Holdings Ltd. (2004) 2 NWLR (Pt. 857) 438 at 447 on this. He further relied on the case of UTC (Nig) Ltd v. Pamotei (1989) 2 NWLR (Pt. 103) 244 at 299 to submit that the Appellants were required to disclose a defence on the merit and not a defence which established prima facie evidence. He contended that Exhibit ‘E’ amounts to an admission of the Respondents’ claim, and therefore afforded the Plaintiffs/Respondents good ground for instituting the action under the Undefended List procedure. He relied on the case of Aikabeli v. African Petroleum PLC (2001) 6 NWLR (Pt. 708) 93 at 101. He therefore urged the Court to hold that the learned trial Judge was right in entering Judgment in favour of the Respondents on the Undefended List procedure. He urged the Court to dismiss the appeal on this ground too.
A claim under the Undefended list procedure is by its very nature an action for a liquidated sum which is an amount previously agreed on by the parties or which can be precisely determined or ascertained from their terms of agreement. Therefore, the procedure is designed to obtain a summary judgment without the necessity of going into a full trial. It is meant for a quick disposal of cases which by their very nature are virtually uncontested. The law with regard to this procedure is that the trial Court, in the exercise of its discretion whether to hear the case as an undefended one or to transfer it to the General cause list, is required to maintain an even balance in the consideration of the affidavits filed by the parties respectively in order to arrive at a just decision. A defendant who has no real defence to the action should not be allowed to dribble and frustrate the plaintiff in order to deprive him of the summary judgment he would have been entitled to by way of delay tactics instead of offering any real defence to the plaintiff’s action.
In the instant appeal, the claim of the Respondents in their Writ of Summons is for the cumulative sum of N25,767, 174. 08K, plus 10% of the total sum until the Judgment sum is liquidated. The principal sum claimed represents the salaries of the Respondents from June 1999 to November, 2000, May, 2001 to December, 2001 and January, 2002 to May 2002, approved furniture allowances and severance gratuities. By paragraphs 4 (d), (e), (f) and (g) of the affidavit in support of the Writ, the Respondents set out in detail the nature and amount of their monetary claim. By paragraph 4 (h), they claim that the Appellants, in documents prepared by them and exhibited as Exhibits ‘E’ and ‘F’ respectively, acknowledged their indebtedness to the Respondents. By paragraph 4 (k), the Respondents aver that the Appellants have failed and/or refused to pay them their claims despite several demands to that effect. I have examined the documents referred to in these paragraphs. Exhibit ‘E’ is a letter dated 16th July, 2003 from the office of the Director Personnel Management Moro Local Government showing all outstanding salaries and allowances to members of staff and ex-elected Council members.
The covering letter addressed to the Permanent Secretary, Ministry of Local Government and Chieftaincy Affairs, Ilorin states inter alia thus: “FORWARDING OF OUTSTANDING LIABILITIES OF SALARIES AND ALLOWANCES OF EX-ELECTED COUNCIL MEMBERS.
Please refer to your radio message of 9th July, 2003 on the above subject matter, and to forward to your office the outstanding liabilities of salaries and allowances of ex-elected council members.
Also included is the outstanding 13 months staff salaries and leave bonuses for the years 2000,’ 2001 and 2002 as it affects Mora Local Government only. ”
Attached as annexures to this letter is a list detailing the indebtedness of the 2nd Appellant to the said ex-elected Council members. The names of the Respondents are contained at serial Nos 2, 19, 18, 23 and 24 of both annexures to this letter. Against their names are the months for which they are owed salaries as well as the amount owed each person. In the face of paragraph 4 (h) of the Respondents’ affidavit which exhibited this Exhibit ‘F containing an admission of the Appellants’ indebtedness in respect of arrears of salaries to the Respondents, there is no specific response, except for a general traverse and denial in paragraph 5 of the affidavit in support of the Notice of Intention to defend.
Therein, the Appellants state as follows:
“5. That paragraph 4 (d) (e) m (g) (h) (i), 5, 6 and 8 of the supporting affidavit are not true.”
It is settled law that a general traverse does not constitute an answer to a specific allegation. Where a deposition on oath is made against a party and he/she intends to dispute same, he/she must make an answer specifically addressing the specific claim, and where applicable, supply facts and documents to buttress same. However, the Appellants went on in paragraphs 8 – 13 of their own affidavit, (at page 48 of the record), to state that the Respondents and their erstwhile colleagues took several loans and/or overdrafts in excess of N50 Million from Banks for the purpose of paying their salaries. They annexed Exhibits “A1” and “A2” in support of these averments. I have examined the said documents, as did the lower Court, and I am in total agreement with learned Counsel for the Respondents that the said Exhibits are merely applications addressed to the Manager of Union Bank of Nigeria PLC, Bode Sa’adu, for over-draft facilities in the sum of N12 Million and N15 Million respectively. These in no way bear out the assertion of the Appellants. And even though it is true that the Respondents did not file a further affidavit to dispute this, it does not detract from the duty of the Appellants as defendants in a suit on the Undefended list. In these proceedings, which are sui generis, the principle of law is that the defendants’ affidavit must condescend upon particulars and should, as far as possible, deal with the plaintiffs’ claim and affidavit and state clearly and concisely what the defence is and facts relied upon to support it. A mere general denial that the defendant is not indebted will not suffice unless the grounds on which the defendant relies show that he is not indebted as stated. See the cases of Peter Tiwell Nigeria Ltd v. Inland Bank Nigeria Ltd (1997) 3 NWLR (Pt. 494) 408; Nya v. Edem (2000) 8 NWLR (Pt. 699) 349 at 360.
The Appellants, (as Defendants), went on to allege at paragraphs 14 – 16 of their affidavit at pages 48 – 49 of the record that the Respondents, (as Plaintiffs), took Agricultural loans which were never repaid and which were written off in consideration of any salary that was owed to the Plaintiffs. They relied on Exhibit B annexed to their affidavit to buttress these averments. A close perusal of the Exhibit B shows that is the “Minutes of the Moro Local Government Council Executive Meeting” held on March 13th, 2002. It is contained at pages 53 – 60 of the printed record. Specifically at page 57, the issue of the Agricultural loan is addressed. For ease of reference, the relevant portion is reproduced hereunder:
“The Executive Council unanimously resolved that the Agricultural loan should be written off. The members of the Executive Council held the view that such action will reduce the sufferings of the farmers, Local Government staff and the Political office holders especially to cushion the bad effect the non-payment of salaries in the last one year had created on the lives of the Local Government staff and their families. The members of the Executive Council further resolved that such action of the Local Government should be regarded as complimentary to the Federal government’s program on Poverty Alleviation since the loan cut across the Local Government Area.”
This document clearly takes the wind out of the sail of the Appellants’ ship, as the reason for writing off the Agricultural loan as stated in the minutes of meeting of the Executive Council is totally at variance with the reasons imputed to same especially in paragraph 16 of the Defendants’/Appellants’ affidavit at page 49 of the record. The Agricultural loan written off for farmers, members of staff and Political Office Holders in the Local Government Council was not in consideration of any salaries owed. No wonder the learned trial Judge waved off the Defendants’ affidavit as containing mere assertions and allegations. It was indeed a bold attempt to hoodwink the Court, which attempt failed woefully.
Finally, in paragraphs 17 and 18 of the defendants’ affidavit, they allege that by a copy of the Schedule of salary payment for the months of October, November and December, 2000 exhibited as Exhibit ‘C’ to the said affidavit, the Plaintiffs/Respondents, whose names appear as serial nos. 17, 13, and 18 collected salaries for those months and in the amounts listed against their names. Once again a close examination of the said Exhibit ‘C’ will reveal the fallaciousness of these averments.
Exhibit ‘C’ is a letter dated 28th February, 2001 and addressed to the Manager, Union Bank of Nigeria PLC, Bode Sa’adu. It states as follows:
“SCHEDULE OF SALARY PAYMENT
Please kindly credit the account of the following Local Government Public Office holder (sic) being payment of their salaries for the month of October, November and December, 2000.
Below is the detail (sic) list of them and their amount:-
(Signed)
Alhaji Suleiman Sadiq,
Treasurer,
Mora Local Government, Bode Sa ‘adu.”
Indeed, the names of the 2nd, 3rd and 4th Plaintiffs/Respondents appear as serial nos. 17, 13 and 18 respectively in the letter. However, that is where it ends. This document, which speaks for itself, is merely a request to the Bank to credit the accounts of these officials. Nowhere therein does it go further to state or confirm that the request was acceded to and that the accounts were so credited. There is no evidence on the face of it that the letter was ever dispatched to the Bank or that the Bank was in receipt of same or that it acted in one way or the other on the request. The bottom line is that this document does not in any way buttress or substantiate the averments of the Defendants/Appellants in paragraphs 17 and 18 of their affidavit that the Plaintiffs/Respondents received the salaries for the months stated therein. Instead, it raises more questions than answers. It certainly does not constitute a defence on the merit where document offered in proof of an averment does not bear out the averment. I therefore agree with the conclusion reached by the learned trial Judge that this is also a “wild allegation.” On the whole, after due consideration of all the affidavit evidence adduced before the trial Court, I see no reason to tamper with the findings of fact made by it. The defence disclosed by the defendants/Appellants in their affidavit in support of the Notice of Intention to defend is nothing but a sham defence. They were therefore not entitled to be let in to defend the suit as such a sham defence can never be equated to a defence on the merit as required by the Rules of Court.
In the light of the above finding, issue no. 2 is resolved against the Appellants in favour of the Respondents. Therefore, Ground 1 of the Original Grounds and Additional Grounds 1, 2, 4 and 5 fail.
Issue Three:
Whether or not the trial Court has a duty to pronounce on all issues properly raised before it and whether the trial Court’s failure to pronounce on the issue of the agricultural loan duly raised by the defence did not amount to a miscarriage of justice. Additional Ground 3.
Learned Counsel for the Appellants on this issue submitted that, even though the Appellants, vide paragraphs 14, 15 and 16 of their affidavit in support of their Notice of intention to defend the suit, deposed that the Respondents took Agricultural loans from the 2nd Appellant which loans were never repaid but written off in consideration of salaries owed to the Respondents, and yet these same salaries were claimed afresh, the learned trial Judge refused and/or failed to make any pronouncement on same in his Judgment. He relied on the cases of Ojo v. Adeleke (2002) 8 NWLR (Pt. 768) 223 at 232 and Ogolo v. Ogolo (2003) 18 NWLR (Pt. 852) 494 at 521 to submit that the learned trial Judge had a duty to consider and pronounce on all issues duly raised before the Court. The Respondents’ response to this is that the learned trial Judge acted properly in line with the procedure for hearing suits on the Undefended list. He referred to Order 23 Rule 3 (1) of the Kwara State High Court (Civil Procedure) Rules, 2005 which provide thus:
“If the party served with the Writ of Summons and Affidavit delivers to the Registrar not less than 5 days before the day fixed for hearing a notice in writing that he intends to defend the suit together with an affidavit disclosing a defence on the merit the Court may give him leave to defend … ”
Learned Senior Advocate submitted that the learned trial Judge, on being satisfied that the defendant’s affidavit disclosed no defence whatsoever, refused to enter the case on the General cause list and ruled as follows at page 70 of the record:
“The computation of the entitlements of the former public officers was done on 16.7.2003 long after the demise of that administration by the appropriate officer of the second defendant. This is an acknowledgment of the true position of the defendants’ indebtedness and, accordingly Judgment is hereby entered for the Plaintiff as per the Writ of Summons under the Undefended list.”
The law is indeed settled that it is the primary duty of the trial Court to make findings of fact on material issues, nay, on all issues placed before it. Where a trial Court fails to make a finding of fact on the specific issues of fact and in consequence fails to resolve the issues that arise in the pleadings of the parties, the proper course an Appellate Court should take is to remit the case for retrial by another Judge. However, as afore stated in the body of this Judgment, proceedings under the Undefended list procedure are sui generis. Issues are not joined on pleadings. Instead, the suit is heard and tried completely on the affidavit evidence before the Court. This evidence consists of evidence on oath which preferably, where available, should be buttressed by documentary evidence. By Order 23 Rule 4 of the said Rules of Court, where the trial Judge is satisfied that a defence on the merit has been disclosed by a defendant, he should transfer the case to the General cause list for hearing by way of taking oral evidence. However” in the event that he finds otherwise, then his only duty is to proceed to enter Judgment for Plaintiff in terms of the Claim. In the light of the explicit finding by the learned trial Judge at page 70 of the record, there was no further call on him to make specific findings on each of the heads of claim.
Besides, as has been found earlier on in respect of Issue NO.2, a close perusal of Exhibit B would show the paucity of the Appellant arguments. Therein, the documentary evidence before the Court clearly disclosed that the Agricultural loan given to the Respondents, other staff of the 2nd Defendant and farmers, were written off, not in lieu of salaries owed, but in consideration of the bad harvest, hardships being suffered generally due to unpaid salaries and in support of the Federal Government’s ‘Poverty Alleviation Program.’ The Appellants were therefore merely clutching at straw at this point, and the documentary evidence before the Court disclosed the shallowness of the defence for what it was. In the face of the Exhibit B attached to the affidavit in support of the Notice of intention to defend, the learned trial Judge was on solid ground to have found as he did. Since I have already treated this matter in depth under Issue 2, I merely adopt my findings therein in respect of the issue of the Agricultural loan. Suffice is to say here that the findings of the learned trial Judge in respect of the affidavit and documentary evidence before him was proper in these proceedings and he didn’t need to go further than this, as if the case was being tried on pleadings. Issue 3 is therefore necessarily also answered in the negative.
In the result, having resolved Issue No. 1 in the Appellants’ brief, which touches on the competence of the action before the trial Court, in the affirmative, I am constrained to find that the Appeal has merit. The Appeal therefore succeeds on this Ground alone. It is allowed. I hereby set aside the decision of the learned trial Court and dismiss the Respondents’ case in its entirety for being statute-barred having been commenced outside the limitation period of 6 months prescribed by S. 178 of the Local Government Law, Cap 92 Laws of Kwara State, 1994. I award costs of N10, 000.00 in favour of the Appellants against the Respondents.
MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE, J.C.A.: This appeal I think is one of the best examples of good briefs by the learned counsel on behalf of their respective clients. The learned counsel involved show and display an excellent research work in their effort to honestly help this court to arrive at a just decision. There is no gain saying that we definitely learnt a lot from their industry. We remain most grateful to them. I shall also in the same vein commend the decision of the trial court which was clear and to the point.
The issue of the undefended list procedure is fast becoming rampant.
The procedure was meant generally, to rectify the hitherto long procedure, thereby causing unnecessary delay in dispensation of justice, is being deliberately abused. The response of some of the trial court judges unfortunately contribute a lot in making the new policy unbearable, intolerable and unpopular. You find that a defendant who knows very well that he has no defense to a suit will consequently apply to have him or her defend the suit. In another situation, you find that the application to defend the suit has genuine facts and evidence which made the claims of the claimant/plaintiff doubtful and needs the clarification of the court but alas you find that in most cases the trial court will not allow the defendants in to defend the matter without any cogent reason. This appeal I think had attempted to clear the dust and hopefully find a solution.
I have read in draft the illuminating and all encompassing judgment rendered by my learned Lord, SANKEY JCA just delivered by me. The Respondents sued the defendants at the High Court of Justice Ilorin, Kwara State claiming that their salaries fell unpaid for a long time and also claimed their furniture allowances. The action was properly brought by the plaintiffs/respondents for liquidated money demands as computed by the 2nd defendant. Actually the suit was brought under the undefended cause list.
Upon service of the Writ of Summons and Statement of Claim, the defendants filed a Notice of intention to defend the action supported by an affidavit of 27 paragraphs to which is attached four exhibits showing that there were applications by the previous administrations of the Moro Local Government for loan and overdraft facilities which were not used for purposes intended and, therefore unauthorized. The plaintiffs by their counsel countered that exhibit “C” attached to the Notice of intention to defend is a mere schedule of payment with no evidence of such payment made by the Bank. Learned plaintiff’s counsel in effect submitted that the said defense is a sham and that the assertion allegedly taken by the Respondents herein is a barren assertion. The defendant’s counsel contended that the Respondents, as Plaintiffs at the lower court, received their salaries for the months of October, November and December, 2000 and he tendered exhibit “C” to buttress his argument and urged that court to accept that there is a defense to the claim and as such the lower court should transfer the suit to the general cause list for hearing proper.
Learned trial Judge looked at both affidavit evidence and the Affidavits attached to both claim and defense and held that the allegations made by the defendants cannot stand. He maintained that there is no scrap of documentary evidence that a total of the loan and overdraft facilities of N27 Million applied for were actually approved and granted. There is also no evidence that the schedule of payment was honoured. There is, therefore, nothing to support the alleged N50 Million loan. The learned trial Judge used his discretion and held that no defence was shown and the defendants had no defence and placed the suit on undefended cause list as provided by the law, Judgment was then entered for the plaintiffs as per their Writ of Summons.
Aggrieved by the above decision of the lower court the defendants now Appellants appealed to this court. My learned brother Sankey JCA in an admirable manner set out the facts and the circumstances leading to this appeal. I have no cause to reproduce them here.
Her Lordship in the same vein and in her characteristic approach analyzed and thrashed out all the issues presented to us for our consideration. I will, in contributing to this judgment, like to start with issues numbers 2 and 3 in the Appellants’ Brief. For the sake of meaningful discussion I will reproduce the two issues as formulated by the learned Appellants’ counsel, and to say that I will visit issue one a non:-
ISSUE II
“Whether or not the trial court was right in holding that the allegations made by the defendants did not amount to a defence on the merit and in entering Judgment for the Respondents” Original Ground 1 and additional Grounds 1, 2, 4 and 5;
ISSUE III
“Whether or not the trial court has a duty to pronounce on all issues properly raised before it and whether the trial court’s failure to pronounce on the issue of Agricultural loan duly raised by the defence did not amount to a miscarriage of justice.”
My learned brother SANKEY JCA with respect has done substantial justice to this issue. The summary of the whole matter as depicted on the Appellants’ Affidavit as highlighted by the Appellants are thus:-
“i. That the Respondents took bank loans for the repayment of staff salaries but diverted the loan proceeds;
ii. That the Respondents have refused to account for the loan proceeds in excess of N50 million inspite of repeated demands by the Appellants.
iii. That the Respondents obtained Agricultural loans from the Appellants which they later wrote off, in consideration of their unpaid salaries.
iv. That the Respondents were actually paid their Salaries for the months of October, November and December, 2000 which same salaries are Included in the claim before the court.”
Learned counsel then buttressed his analysis with letters by which loans were obtained which represented Exhibits “A” and A2.” The averments in the Affidavit is that the Respondents have refused to account for the loan proceeds Which is in excess of N50 million. Learned counsel for the Appellants then argued that this scenario amounts to a triable issue and sufficient to make the learned trial judge to order for the transfer of the suit to the general cause list for hearing, so that oral evidence could be called. Appellants’ counsel again submitted, rightly or wrongly that once a defendant’s affidavit casts doubt on the plaintiff’s case the defendant should be let in to defend. He relied on the cases of FRANK MUOBIKE V. NWIGWE (2000) 1 FWLR [PART 117] and other cases.
The Respondents’ counsel took a different view from that of the Appellants. Learned Senior counsel Salman SAN submitted that the discretion to determine whether a triable issue or issues had been disclosed or not in an affidavit of Intention to defend a suit under the undefended list is strictly that of the trial court and not of the Appellate court, which decision must be gathered from within the confines of the Affidavit of Intention to defend and not from outside. CHINA GOE ENG. CO. VS. NAMBATIVE (2001) 2 NWLR [PART 698] 529/544.
In the above case my learned brother AKPABIO JCA as he then was of blessed memory agreed with UMOREN JCA that the discretion to say whether a “triable issue” has been disclosed or not in an affidavit of intention to defend, is strictly that of the learned trial Judge of the court below, and not that of this court. Also the said decision must be gathered from within the four walls of the Affidavit of intention to defend and not from outside. See p.544 paragraph 4.
I agree entirely with the submissions of the learned SAN on issue NO.2 and accepted the impeccable stance of my learned brother Sankey that the defence disclosed by the defendants/appellants in their affidavit in support of the Notice of Intention to defend is nothing but a sham defence. They were therefore not entitled to be let in to defend the suit as such a sham defence can never be equated to a defence on the merit as required by the Rules of court Order 6 RR 2 & 4 of the Court of Appeal Rules. I agree also that since the defence so called, could not shake or casts any doubt on the claim of the Respondents it means that no triable issue was disclosed therein. I am confident, looking at the Affidavit evidence of both counsel, that the learned trial judge exercised his discretion judicially and judiciously I cannot therefore possibly fault him on that as his stance is quite un-assailable. It goes without saying that issue two of the Appellants is resolved against the Appellants and in favour of the Respondents. On issue NO.3 I have nothing serious or different to add. My learned Lord Sankey JCA has displayed amazing extra-energy in dealing with this issue, so amazing that it would not be safe for me to attempt to re-assess same here. My simple obligation under this issue is to state clearly without mincing words that counsel should realize that this matter is being fought not on oral evidence and pleadings but on the Affidavit evidence which means that parties do not join issue in a suit placed on an undefended cause. We are to recall that proceedings under the undefended list procedure, by its nature, are sui generis. The suit is tried absolutely on the affidavit evidence filed before the trial court. I agree with the position taken by the learned trial judge that he owes no body a duty to further make specific findings on each of the claim since he held that the suit be placed on undefended list because there was no defence on the part of the defendants. Under this issue, for the competent reasons adumbrated by my learned Lord Sankey JCA, I hold that the much talked about loan agreement is a mere empty shell. The said Agricultural loan given to the Respondents were written off, not in lieu of salaries owed, but clearly in consideration of the bad harvest, hardships being suffered generally due to unpaid salaries, and in support of the Federal Government’s Poverty Alleviation Program”. I hold as held by my learned erudite Justice, Sankey JCA, that this issue three of the Appellants is fortunately or unfortunately answered negatively in favour of the Respondents. I am now ready to face, as promised, head long, the Appellants’ first issue and Respondents’ 2nd issue. My learned brother Sankey JCA produced a beautiful and well researched decision put in a fantastic style reminiscence of ancient Major – domo. Her Lordship has characteristically and copiously too thrashed out issue I which is :
“Whether the Respondent’s action which was filed on 28th April, 2005, that is 35 months after they had left the service of the Appellants, is/was not statute barred”.
It appears that there are two legislations dealing with the issue of whether the claims are incompetent on the ground of the application of limitation period.
The 1st enactment is the one called Local Government Law Cap 92, Laws of Kwara State Section 178 thereof which came into effect on 1st September, 1976.
It says:-
“When any suit is commenced against any Local government for any act done in pursuance or execution or intended execution of any law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority, such suit shall not lie or be instituted unless it is commenced within six months next after the act, neglect or default complained or, or in the case of a continuance of damage or injury within six months after the ceasing thereof”
According to this enactment any suit against the Local Government filed after six months of the occurrence of the act or accrual of the cause of action such suit is statute barred and incompetent and the trial court would have no jurisdiction to entertain same.
The 2nd enactment is what the learned Senior Advocate described as the existing Limitation law, It is called Kwara Sate Limitation Law Cap. 89 Laws of Kwara State 1994 which came into effect on 1st October, 1984 Section 44 thereof. It provides thus:
“S.44 Any enactment relating to the Limitation of action which were in force in the state immediately before the commencement of this Edict shall cease to apply”.
According to this enactment, especially Section 18 thereof, any action brought after five years from the date on which the cause of action accrued is statute barred and the action thereof is incompetent ab initio and trial court has thus lacked jurisdiction to entertain same.
Learned counsel for the Appellants submitted on so many relevant authorities that the action at hand was filed 35 months after the cause of action has accrued in May, 2002, and the action was filed on 28th April, 2005, therefore by virtue of Section 178 of the Local Government Law Cap. 92 the suit filed was statute barred. He relied on many cases among which are:
FAYEMI VS. LOCAL GOVERNMENT SERVICE COMMISSION OYO STATE AND ANOR (2005) 6 NWLR [PART 921] 280/304; BABALOLA V. OSOGBO LOCAL GOVERNMENT (2003) 10 NWLR [PART 829] 465/482, and MADUKUOLU V. NKEMDILIM (1962) 2 SCNJ 341.
The Respondents’ counsel submitted that 1st enactment Kwara State Local Government Laws Cap. 92 Laws of Kwara State S. 178 thereof has since been specifically repealed by Section 44 of the Kwara State Limitation Law Cap. 89 of 1994 which provides:-
“Any enactment relating to the Limitation of action which were in force in the State immediately before the commencement of this Edict shall cease to apply?
He submitted that the correct law that regulates this particular suit is Section 18 of the Limitation law of Kwara State Cap. 98, which provides, unlike S. 178 of repealed law, as follows:-
“No action founded on contract, tort or any other action not specifically provided for in part I and II of this Edict shall be brought after the expiration of five years from the date on which the cause of action accrued.”
That being the case, learned counsel for the Respondents, Alhaji Aluji Salman SAN, submitted forcefully that the Respondents’ suit filed after 35 months of the accrual of the cause of action was filed within time allowed by the relevant existing statute which allows them up to sixty (60) months. He urged this court to hold that the suit was not statute barred.
The court is now called upon to decide which of the two enactments shall apply in this matter? Is it correct to state that S. 44 of the Kwara State Limitation Law Cap 89 of 1994 actually repealed S.178 of Local Government Law Cap 92 Laws of Kwara State. The last question to be resolved in my decision is whether or not this court should identify which of the two enactments was general and which was specific? And which one is extant and which is not.
My learned brother has clearly agreed with the learned counsel for the Appellants that the Local Government Law Cap 92 Laws of Kwara State is still extant and in existence and is applicable to the suit at hand. It is also regarded as Specific law which shall not be allowed to be derogated by the general law, i.e. Kwara State Limitation law Cap 89 of 1994. That being the case my learned brother eloquently held, on numerous authorities, that the action was statute barred as it was filed 35 months after the accrual of the cause of action, therefore the action is bad ab initio and the court below was robbed of its jurisdiction to entertain the suit. For that reason she resolved issue one in favour of the Appellants and allowed this appeal and the decision of the learned trial judge was set aside by her and awarded N10,000.00 costs to the Appellants.
This is, regrettably, where I part company with my learned brother, for the following reasons which I intend to make them very brief:
(a) In my respectful view, having regard to the two enactments stated earlier and the proper canon of construction, this is a proper case which should have been resolved against the Appellants. The 1994 Cap 89 was more specific in terms of the language. It is called “Limitation Law” and states that any action which was in force in the state immediately before the commencement of this Edict shall cease to apply”. There is no any legislation on limitation of action in between Cap. 92 Local Government law which came into effect in 1976 and the Cap 89 of 1994 which came into effect in October, 1984, which means, necessarily, that Cap. 92 Local Government Law was clearly repealed as there was no other enactment dealing with Limitation law in between the two enactments. There is no even need to go searching of which of the two enactments is general provision and which one is specific. I am not un-aware though of the Latin maxim often quoted thus:
“GENERALIS CLAUSULA NON PORRIGITUR AD EA QUAE ANTEAA PECIALITER SUNT COMPREHENSA”
It is now clear as submitted by the learned counsel for the Appellants in his reply Brief, that in the construction of general and special provisions in enactments covering similar subjects, the general clause does not and cannot be made to extend to those things specifically provided for. He relied on the above quoted Latin maxim. He was able also to discover where the maxim was judicially pronounced. He relied on the statement of Uwaifo JSC as follows:
“The law is that where there is a special provision in a Statute, a later general provision in statute capable of covering the same matter is not to be interpreted as derogating from what has been specially provided for individually, unless an intention to do so is unambiguously declared.
To do otherwise is to indirectly use a general Provision to alter the intention to provide specially by way of an exception for a subject matter'”
See FEDERAL MORTGAGE BANK OF NIGERIA v. P. OLLOH (2002) 9 NWLR (PART 773] 475 AT 489. The learned Icon of the Supreme Court relied in his statement on the case of BAMIGBOYE V. ADMINISTRATOR-GENERAL (1954) 12 WACA 616 where Bairaman, J. has this to say:
“It is an accepted canon of construction that where there are two provisions, one special and the other general, covering the same subject-matter, a case falling within the words of the special provision must be governed thereby and not by the terms of the general provision. The reason behind this rule is that the legislature in making the special provision is considering the particular case, hence the special provision forms an exception importing the negative.”
My learned brother Sankey JCA referred to plethora of authorities and held that the law is now settled that where it is the intention of a later statute to modify or repeal an earlier one, such intention must be clearly stated or unequivocally deducible from the provisions of the later statute – ABACHA V. FAWEHINMI (2000) FWLR [PART 4] 533, Learned Justice of the Court of Appeal Sankey, JCA Held that S.178 of the Local Government Law, Cap. 92 of Kwara State, 1994 is still extant and existing, since Respondents filed their suit outside this provision their suit is statute barred and therefore incompetent ab initio.
After considering the cases decided by both the Supreme Court and the Court of Appeal I am inclined to accept that the Limitation Law in Section 178 of the Local Government Law has been clearly repealed by the Limitation Law Cap 89 Laws of Kwara State 1994 which came into effect on the 1st day of October, 1984 S. 44 thereof. That being the case Section 178 of the Local Government Law which came into effect on 18th September, 1976 cannot possibly be applicable to this suit. It is the stance taken by the Supreme Court that where words of a statute are unambiguous then natural, grammatical and ordinary meaning shall apply. ABIA STATE V. A-G FED (2002) 6 NWLR [PART 763] AT 365. From that decision I hold that Section 18, 19(1) and 42 especially and categorically repealed S.178 of the Local Government Law of Kwara State. S.44 says:-
“Any enactments relating to limitation of action which were in force in the state immediately before the commencement of this edict shall cease to apply”.
Section 178 of the Local Government Law was clearly an enactment relating to Limitation of action in Kwara State it is the same section in force in the state immediately before the commencement of the Limitation Law Cap 89 of 1994, and that there were no other Limitation Law in between. I think the provisions of Cap 89 of 1994 are clear and unambiguous and their natural meaning shall prevail and there is no pressing need to go borrowing or to resort to interpretation wizard of the latin maxim. See RHEIN MASS v. RIVWAY LINES (1998) 4 SCNJ 18 AT 29 per Ogundare JSC.
See also section 42 of the Limitation Law of Kwara State Cap. 89 and all other decided cases cited in support and against by both learned counsel and I dare say without mincing of any words that Section 178 of the Local Government had died a natural death by the existence of Edict No. 27 of 1991 Cap. 89 of 1994 and the provisions of that Section 178 can never be re-surrected until another legislation specifically decides to revive it. That being the case, I beg to disagree with my learned brother Sankey JCA and hold that Local Government Law of Kwara State S. 178 thereof is inapplicable in this matter and to hold also that the action of the respondents having been filed less than five years is still within time and the lower court was perfectly in order for not declining jurisdiction .. Issue No. I in the appellant’s Brief and issue 2 of the respondents’ Brief are therefore answered positively in favour of the Respondents herein. The judgment of my learned brother Sankey JCA is full of wisdom and logic but cannot be accepted by me for the reasons I adduced in this my decision. The action therefore of the Respondents which was filed 35 months after they had left the Service of the Appellants is not statute barred.
The whole matter now amounts to this, that all the issues formulated by the Appellants’ counsel on behalf of his clients are resolved against them. The defendants clearly had no defence on the merit and the learned trial judge was perfectly right in placing the suit on undefended list. The Agricultural Loan written off in favour of the respondents were done so not in lieu of salaries.
Appeal is therefore dismissed and the decision of the lower court delivered on 30/6/2005 by Gbadeyan J. is restored and affirmed. N10,000.00 costs is awarded by me in favour of the Respondents herein.
Appeal dismissed.
IGNATIUS IGWE AGUBE, J.C.A.: I was privileged to have read in draft the erudite and lucid judgment of my learned brother J. H. Sankey J.C.A. which has just been delivered.
While I commend his usual industry and painstaking analysis of the issues at State, I shall however beg to differ on the conclusion reached on issue Number I of the Appellants that the claim of the Respondents is Statute barred.
The facts are that at all times material to this case the Plaintiffs (now Respondents herein;) were elected as vice Chairman and Councilors of Moro Local Government (the second Defendant now Appellant herein).
The Respondents served and ended their respective tenures from 1999 to 2002 meritoriously and without blemish. Ironically, the Appellants have refused, failed and/or neglected to pay each of the Respondents their arrears of remuneration in terms of salaries and allowances totaling N25, 767,183.81k (Twenty-Five Million, Seven Hundred and Sixty-Seven Thousand, One Hundred and Eighty Three Naira and Eighty One Kobo).
The Respondents had made several attempts including written demands to recover their lawful entitlements to no avail in spite of the fact that the Appellants had since July 2003 and indeed in April/May 2004 acknowledged their indebtedness to the Respondents.
Upon failure of the Appellants to Liquidate the Arrears of their entitlements the Respondents gave the Appellant, the statutory pre-action Notice and subsequently commenced this action by way of the undefended list procedure and in their affidavit in support deposed to the fact that they believed that the Appellants (then Defendants) had no defence in law.
The Defendants/Appellants on the other hand filed their Notice of intention to defend and amongst other facts averred in paragraphs 15, 16 and 23 as follows: –
“15. That at the meeting held on 13th March, 2002, the plaintiffs along with the other members of the 2nd Defendant executive Council at the time, resolved to write off the Agric loans taken by them. A copy of the minutes is herewith attached and marked Exhibit B.
“16. That I know as a fact that the loans of the plaintiffs that were written off was in consideration of any salary that was owed to the plaintiff at the time.
“23. That I know as a fact that the defendants have a counter claim against the Plaintiffs on the bank loan as well as the Agric loans that were written off at the expense and to the detriment of the rd Defendant.”
It has to be recalled that the Defendants/Appellants had earlier deposed in paragraph 14 of the said affidavit thus:
“14. That apart from the loan issue, I also know as a fact that the plaintiffs took Agricultural loans from the 2nd Defendant which were never repaid.”
I have deliberately ignored the other loans said to have been obtained by the Respondents since my lord has resolved that issue in this Court in favour of the Respondents.
After hearing the parties on the undefended list proceeding the learned trial judge held as follows at page 4 of the Ruling (page 71) of the Record of proceedings Inter alia:
“There are several allegation made by the defence.
They are mere assertions. For instance there is no iota of documentary evidence that a total of the loan and overdraft facilities of N27 Million applied for were actually approved and granted. There is no evidence that the schedule of payment was honoured. There is nothing to support the allegation of N50 Million loan. The authorities are clearly in support of the defendant making credible allegations amounting to a defence on the merit to cause a matter to be transferred to the general cause list from the undefended cause list. It is never granted upon the making of a wild allegation or mere assertions or half-hearted defence. See MUOBIKE VS. NWIGWE supra at 635.
The computation of the entitlements of the former public officers was done on 16.7.2003 long after the demise of that administration by the appropriate officer of the second defendant. This is an acknowledgement of the true position of the defendants indebtedness and accordingly, judgment is hereby entered for the plaintiffs as per the writ of summons under the undefended list.”
I shall come to this issue of Agric loan later on. But suffice it to say that the Defendant/Appellants were dissatisfied with the Judgment of the lower Court and have appealed to this Honourable Court and in Grounds I & II of their Notice of Appeal filed on the 1st of July, 2005 stated:
“1. The judgment is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.
“ii. The learned trial Judge erred in Law and wrongfully exercised his jurisdiction in entertaining the respondents’ case which was/is clearly statute barred
PARTICULARS
(A) S.178 of the local Government Law of Kwara State presents a limitation period of six months for the commencement of actions against a local Government.
(B) The Sundry Salaries, allowances and entitlements claimed by the Respondents accrued to them between 1999 and 2002
(C) The Respondents action was only filed on the 18th of March, 2005 a period of 34 months after the accrual of their entitlements/Cause(s) of action.
(D) The trial Court lacked the jurisdiction which it exercised to entertain the Respondents case.”
Further grounds of Appeal were filed and for the purpose of the vexed issue of Agricultural loan which was written off according to the Appellants in lieu of the Salaries and remunerations of the respondents the Appellant stated in ground 5 thereof as follows:
“5. The learned trial Judge erred in law when he failed to pronounce on the issue of agricultural loan taken by the respondents from the Appellant and later written-off which issue was duly canvassed before him.
PARTICULARS:
i. A Court of Law has a duty to pronounce on all issues duly raised before it.
ii. The issue of the agricultural loan taken and written off by the Respondents is germane and fundamental to the case of the Appellants.
iii. The non-consideration of the issue of agricultural loan duly raised by the Appellants before judgment has occasioned a serious miscarriage of justice.”
Pursuant to the Rules of this Court parties filed and exchanged their respective briefs which were duly adopted on the 7th of November, 2006 when the Appeal was due for argument and Learned Counsel for Appellants filed a list of additional authorities in respect of his submissions to urge this court to allow the Appeal.
On the other hand, the Learned Counsel for the respondent ALHAJI ALIYU SALMAN SAN in his oral argument in adumbration of Respondents brief after identifying three issues for determination in the appeal, submitted in respect of Respondents ISSUE NO.2 that the cases cited in the Appellants brief at pages 4-5 thereof to place reliance on section 178 of the Local Government Law of Kwara State were inapplicable in that section 178 of the said Local Government Law of Kwara State had long been repealed by section 18 of the Limitation Law Cap 89 Laws of Kwara State.
He argued that the Respondents took out the action at the High Court 35 (Thirty-Five) months after having been deprived of their Salaries and allowances when they left office and that since the limitation Law provides for 60 months, they were within time and accordingly the appeal should be dismissed.
For purpose of my contribution I shall pay particular attention to issues Nos. 1 and 3 of the Appellants and Issues Nos.2 and 3 of the respondents.
ON ISSUE NO.1 of the Appellants which is similar to issue NO.2 of the Respondents issues for determination, the Learned counsel for the Appellants had rightly observed that the Respondents had filed their action on the 28th April, 2005, 35 (Thirty-Five) months after the accrual of cause of action and by section 178 of the LOCAL GOVERNMENT LAW, CAP. 92 Laws of Kwara State the action ought to be commenced within six months next after the act, neglect or default complained of or in the case of continuance of damage or injury within six months after the ceasing thereof.
He has also submitted and clearly in my view stated what the intention or effect of the Law ought to be which is to prohibit the filing of suits against Local Governments for their act, neglect or default after the specific period of six months of the occurrence of the act or default.
There is also no doubt that the Court of Appeal has decided in the cases cited by the Appellant’s Counsel FAYOMI VS. LOCAL GOVERNMENT SERVICE COMMISSION OYO STATE & ANOR (2005) 6 NWLR (pt.921) 280 at 304, BABALOLA VS. OSHOGBO LOCAL GOVERNMENT (2003) 10 NWLR (PT. 829) 465 at 480 that actions commenced outside the limitation period are incompetent and that on the authority of MADUKOLU VS. NKEM-DILIM (1962) 2 SCNLR 341 cited by the Learned Appellants Counsel robs such a Court before which the action is brought of the jurisdiction to entertain same.
The crucial question that calls for an answer is whether in our instant case the Limitation Law of Kwara State has repealed the provision relating to limitation of actions us contained in section 178 of the Local Government Law Cap. 92 Laws of Kwara State.
Learned Senior Advocate for the Respondents stated the position in his oral submission before us on the 7th of November, 2006 and in his brief of argument has argued that the limitation provision in section 178 of the Local Government Law came into effect on 18th September, 1976 and that, that provision having been repealed by the existing Limitation Law Cap.89 Laws of Kwara State 1994 which came into effect on the 1st day of October, 1984 by section 44 thereof, can not be applicable to this suit.
According to the Learned Senior Advocate, who relied on the authority A.G. ABIA STATE v. A.G. FED. (2002) 6 NWLR (Pt.763) at 365 the words as used by the two statutes are unambiguous and their natural grammatical and ordinary meaning shall apply.
The learned SAN then submitted that Section 18 of the Limitation Law of Kwara State Cap.89 applies to the suit.
Placing reliance on the case of LEAD WAY ASSURANCE CO. LTD v. J.U.C. LTD. (2005) 5 NWLR (PT.919) 539 at 559-560 per ADEREMI J.C.A. the learned Senior Advocate contended that the relationship between the respondents and the Appellants at the material time was one of servant and master which is regulated by the contract of employment which is within the provisions of section 18 of the Limitation Law of Kwara State.
He finally contended on this issue that the respondents’ suit was instituted 35 months after they left office and that the Limitation Law allows them 60 months to institute the action and as such they are well within time, He urged the court to resolve the issue against the Appellants.
Learned Counsel for the Appellants in reaction to the above contention of the Learned Senior Advocate referred us to the case of FEDERAL MORTGAGE BANK OF NIGERIA v. P. N. OLLEH (2002) 9 NWLR (PT.773) AT 489 to submit that the Limitation Law of Kwara State is a general Law whereas S.178 of the local Government Law is a special provision and therefore should prevail on the court to dismiss the case.
According to learned counsel, the respondents are urging the Court of Appeal by their argument to employ the general provision in section 18 of the Limitation Law of Kwara State to alter the intention of the legislature to provide specifically for actions against Local Governments and that this is a doomed attempt which flies in the face of the canon of construction as well us judicial authorities.
He further canvassed the point that section 178 of the Local Government Law is extant and existing and applicable to this case, which exfacie involves Local government against which sundry claims in arrears of salaries and entitlements have been made. It was also the contention of the learned Counsel that there is no inconsistency whatsoever in the said statutes submitting that to every general rule there is an exception which exception is created in Section 178 of the local Government law.
Replying to the position taken by the Learned Senior Advocate that section 178 of the Local Government Law has been repealed by Section 44 of the Limitation Law because the limitation law came later in time, it was his submission that the repeal of a statute is never presumed or implied and that a statute is not repealed simply because a similar statute dealing with same subject matter is subsequently enacted, as there must be clear and direct provision(s)repealing an existing one. ASIMS (NIG.) LTD v. L.B.R.B. DEVELOPMENT AUTHORITY (2002) 8 NWLR (PT.769) 349 at 363-365 and KLM ROYAL DUTCH AIRLINES VS. MRS ANNAH NAYA KUMZHI (2004) 46 W.R.H.59 at 84 per OGBUAGU J.C.A. (as he then was) were the authorities he relied upon to buttress the above submission. He drew the court’s attention to the fact that there are two different statutes, (the LOCAL Government Law and the Limitation Law), and that it cannot be the intention of the legislature that the Limitation Law will repeal the Local Government law provision.
According to Learned Counsel for the Appellant, any repeal clause in the limitation Law can only, on the ejusdem generis rule, apply to previous Limitation Law and that if it is intended to affect other statutes such as the Local Government Laws the Legislature would expressly have stated it us such.
He finally drew the court’s attention to the fact that the Limitation Laws of Kwara State and the Local Government Law are both contained in the same volume 2 of the Laws of Kwara State 1994 as cap. 89 and 92 respectively which further shows that section 178 of the Local Government Law is extant and not repealed by the Limitation Law directly or indirectly.
Now, Section 178 of the Local Government Law Cap. 92 laws of Kwara State which the Appellants rely upon to hold that the respondents claim is statute barred provides that:-
“178. When any suit is commenced against any local Government for any act done in pursuance or execution or intended execution of any law or public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority such suit shall not lie or be instituted unless, it is commenced within six months next after the act neglect or default complained of; or in the case of continuance of damage or injury within six months after the ceasing thereof.”
Section 18 of the Limitation Law Cap.89 Laws of Kwara State which the Respondents rely upon to hold that their action is not statute barred provides on the other hand thus:-
“’18. No action founded on contract, tort or any other action not specifically provided for in part I and II of this Edict shall be brought after the expiration of five years from the date on which the cause of action accrued.”
From the provisions of the laws above cited it is clear that there are conflicts, which ought to be resolved from judicial authorities.
In the case of FEDERAL MORTGAGE BANK OF NIGERIA v. OLLOH (2002) FWLR (PT.107) 1244-1253 the Supreme Court Per UWAIFO J.S.C. with KUTIGI, OGBUEGWU, and EJIWUNMI J.JJSC concurring held thus:-
“The law is that where there is a special provision in a statute, a later general provision in the same statute capable of covering the same subject matter is not to be Interpreted as derogating from what has been especially provided for individually unless an intention to do so is unambiguously declared. To do otherwise is to indirectly use a general provision to alter the intention to provide specially by way of an exception for a subject matter.
Then the learned Justices of the apex Court quoted with approval the dictum of Baramian J. where the Latin maxim ‘Generalis clausula non purrigitur ad ea quae antca specialiter sunt comprehensa” was explained as follows in the case of BAMGBOYE VS. ADMISTRATOR-GENERAL (1954) 14 WACA 616:-
“It is an accepted canon of construction that where there are two provisions, one special and the other general, covering the same subject matter, a case falling within the words of the special provision must be governed thereby and not by the terms of the general provisions. The reason behind this rule is that the legislature in making the special provision is considering the particular case and expressing Its will in regard to that case; hence the special provision is and taken out of the general provision and its ambit, the general provision does not apply.”
See SCHROADER VS. MAJOR (1989) 2 S.C.N.J. 210 at 224 per AGBAJE J.S.C. adopting the same quotation in his contribution to the Judgment of the Supreme Court.
Learned Appellants Counsel has submitted and my Lord Sankey agrees with him that it will be fallacious to contend that the two provisions are inconsistent in that section 18 of the Limitation Law is a general provision which provides for all other situations.
I am of the considered opinion that the Learned Senior Advocate was/is correct to contend that there are conflicts in the provisions of the two Laws. To be belie the point that section 18 is a general provision the wordings of the enactment should be given the natural and grammatical construction. See ATTORNEY GENERAL ABIA STATE VS. ATTORNEY GENERAL OF THE FEDERATION (Supra).
A careful consideration of the heading of part 3 of the Law and the marginal note would reveal that the section is targeted specifically on actions in tort and contract and other actions not specifically mentioned including any tort or contract committed or entered into by a Local Government irrespective of Section 178 of the law establishing it, which in any case had been unequivocally repealed as would be seen in the following sections of the Limitation Act Cap. 89 Laws of Kwara State. See Section 19(1) of the Limitation Law, which categorically stipulates inter alia:-
“19(1) This section applies, not withstanding anything contained in any other enactment to the contrary, to actions for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under an enactment or Independently, of any contract or any such provision) where the damages claimed by the person or negligence, nuisance or breach of duty consists of or Include damages In respect of personal injuries to the plaintiff or any other person”.
Where for instance a Local Government driver causes death to a person or personal injury due to his negligence can the Local Government hide under the so-called special provisions when the Limitation Law has clearly stated that the limitation period to commence action shall be five years and that this is not withstanding the provision of any other enactment to the contrary? I think not go further to quote the provisions, which sounds the death knell to section 178 of the Local Government Law apart from the provisions relating to it, repeal.
Section 42 of the Limitation Law which limits actions against the state and public authorities provides thus:-
“42. Not withstanding anything contained a any other enactment or rule of law to the contrary all actions to which this Edict applies howsoever arising against the state or against any State Public authority or other officer thereof, for anything done or intended or omitted to be done In pursuance or execution of any such act, duty or authority or in respect of any neglect or default in the execution of any such act, duty or authority shall be commenced within the same period of time after the cause of action arose as if such action were brought against a private individual.”
At this juncture it is pertinent to pause and ponder on these crucial questions. (1) Is MORO LOCAL GOVERNMENT a State Public Authority? (2) Is the MORO LOCAL GOVERNMENT legislative Council a State Public authority? And (3) is the Chairman Moro Local Government an officer of the Public authority? I dare answer these questions in the affirmative.
I reiterate that on a calm and dispassionate construction of the last quoted sections it is clear that the provisions of section 178 of the Local Government Law; which is an enactment and a rule of Law can no longer be applicable in the situation the Plaintiffs/Respondents have found themselves.
It has been submitted and my Lord Justice Sankey has also agreed with Learned Counsel for the Appellants and on the authorities of ASIMS (NIG.) LTD VS. LOWER BASIN DEVELOPMENT AUTHORITY per TANKO MOHAMMED J.C.A. (as he then was), ABACHA VS. FAWEHINMI (2000) FWLR (PT.4) 533 a decision of a full Bench of the Supreme Court, that the Law is now settled that where it is the intention of a statute later in time to modify or repeal an earlier one, such intention must be dearly stated or unequivocally deducible from the provisions of the later one.
I think that the dicta of their Lordships of the Supreme Court have to be considered under their peculiar circumstances. In our instant case, Cap.89 of 1994, which was enacted as Edict No. KWS 27 of 1991 has its major heading thus: “AN EDICT TO PROVIDE FOR LIMITATION OF ACTIONS IN THE STATE.’
Section 44 thereof which is the subject of controversy is very explicit and what is on the palm needs no mirror to behold, that it provides that:
“44 Any enactments relating to limitation of action which were in force in the state immediately before the commencement of this edict shall cease to apply”
The questions we shall ask ourselves again without going into the logic of special provisions and general, are whether section 178 of the Local Government Law is an enactment relating to limitation of action in this State (Kwara State).
Secondly was section 178 of the Local Government Law in force in the State immediately before the commencement of the Limitation Law? If the answers are in the positive then it would tantamount to standing logic on its head to import the dictum of their Lordships of the Supreme court to deprive the respondents of their legitimate entitlements.
As was succinctly decided by OGUNDARE J.S.C. in RHEIN MASS VS. RIVWAY LINES (1998) 4 S.C.N.J 18 at 29 lines 40 – 5 at page 30 thereof: –
“It is a cardinal rule of interpretation which has been accepted in numerous cases in this country that if the words of a statute are in themselves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense as the words themselves in such case best declare the intention of the legislature. See ASUQUO VS. THE STATE (1967) 1 ALL NLR 123; ADEJUMO VS GOVERNOR OF LAGOS STATE (1972) 3 S.C.45, LAWAL VS. GB OLIVANT (1972) 3 S.C. 124; AYA VS. HENSHAW (1972) 5 S.C. 87 etc.”
In this case the words of the legislature are precise and unambiguous and they best explain their intention that all enactments relating to limitation of actions be repealed. Section 178 of the Local Government Law is one of such provisions which limits the commencement of all actions against Local Governments at the expiration of six months after the accrual of cause of action.
Again in spite of the arguments of Learned counsel for the Appellants, Section 178 of the Local Government Law predates section 44 of the Limitation Law and since the Limitation Law expressly repealed “any enactments” relating to limitation of actions, which were in force in the State; Section 178 of Local Government Law is no exception.
There is no doubt that the two laws exist and are contained in vol.2 of the laws of Kwara State 1994. However, a careful perusal of the two laws would reveal that the Local Government Law of Kwara State Cap. 92 has its commencement date as 1st September, 1976 whereas the Limitation Law cap. 89 has its commencement date as 1st October, 1987 and was actually enacted in 1991 as Kwara State Edict 27.
I am of the view that even the cases cited by the learned Appellants counsel like ASIMS NIG (LTD) VS. L, B, D, A. SUPRA, FEDERAL MORTGAGE BANK OF NIGERIA VS. OLLOH AND ABACHA VS. FAWEHINMI SUPRA emphasized on the intention of the later legislation (the Limitation Law) to cover the same field as section 178 of the Local Government Law which intention has been clearly manifested in sections 18, 19,42 and 44 of the Limitation Law. Even on the authorities of LEAD WAY Assurance CO. LTD VS. J.U.C.
But I hasten to add that Section 178 of the Local Government Law has been LTD Supra, where the provisions of the two laws are so inconsistent and plainly repugnant one to the other (as in this case where the earlier provided for 6 months, whereas, the later provides for five years), it would have been inevitable to hold that the repeal of the earlier legislation has been effected. Thus I would have been minded to adopt the dicta of ADEREMI J.C.A. (as he then was) and OMAGE J.C.A. as stated in the LEAD WAY case as they represent the position we are confronted with in this case.
expressly or by implication been repealed and the intention of the legislature is clearly manifested particularly in section 44 of the Limitation Law.
If the legislature had intended that the Local Government law (Section 178 thereof) is exempted from the repeal of all or any enactments relating to limitation of actions, definitely there would have been an exemption clause to that effect. See for instance section 43 of the Limitation Law of Kwara State.
From what I have been able to gather from the submissions of Counsel, the authorities cited and the laws in question, I am of the candid view that Section 178 of the Local Government Law Cap. 92 Laws of Kwara State has been repealed expressly by section 44 of the Limitation Law Cap, 89 Laws of Kwara State 1994 and the limitation clause in Cap, 92 can therefore no longer be invoked to deprive the Respondents of their lawful entitlements.
Assuming without conceding that section 178 of the Local Government Law is extant where there are two statutes existing side by side, one tending to take away the right of access to court and other which tilts towards the preservation of such right, the Courts are likely to lean towards the latter. See WALSH v. SECRETARY OF STATE FOR INDIA (1863) 10 H.L.C. 367; HOUGH VS. WINDUS (1884) 12 Q.B.D. 224 PER BROWN L. J. which established that statute which encroach on the personal or proprietary rights of citizens attract strict construction by the courts, the implication being that such statutes are construed so as to respect the personal or proprietary rights of the citizens. Sec JOSEPH MANGTUP DIN VS. A. G. FEDERATION (1988) 9 S.C.N.J. 14 at 47 per NNAEMEKA-AGU J.S.C.
Finally see ROSE VS. FORD (1937) AC. 826, where it was held that: “Where an Act has been passed to change the Law, its operation shall not be minimized or neutralied by introducing notions taken or inspired by the old law which words of the Act intended to abrogate.” I reiterate that the claim of the Respondents was not statute barred.
I therefore agree with the learned Senior Advocate of Nigeria that the law that regulated the relationship between the Appellants and Respondents was within the purview objection 18 of the Limitation Law Cap. 89 laws of Kwara State 1994.
The claim of the Respondents was therefore not statute barred if they commenced same 35 months instead of the 60 months Limitation as prescribed by the Limitation Law of Kwara State.
Assuming I am wrong in my position there is a very salient issue which has been raised in paragraph 5.09 of the Respondents brief of Argument when learned Senior Advocate of Nigeria contended on behalf of the Respondents that:
“The Respondents claim against the Appellants is their arrears of salaries and allowances which were compiled by the Appellants about one year after the Respondents left office, the claim is duly acknowledged and admitted by the Appellants (please see Exhibit ‘E’ attached to the writ of summons) pages 7.9 of the Records”.
It is pertinent to note that the Respondents in the Affidavit in support of their writ of summons in paragraph 4(h) Stated thus:
“h. That the defendants have since May/April 2004 acknowledged owing and has commenced payment of outstanding salaries and allowances of other staffs of Mora Local Government without paying the plaintiffs their legitimate dues. Letter dated 6th July, 2003 from the Director of Personnel Management Moro Local Government showing outstanding salaries to staffs and ex-elected Council members and Address delivered by the Chairman Moro Local Government on the occasion of the first 100 (Hundred) days in office on 11th August, 2004 acknowledging owing arrears of salaries and allowances are herewith attached and marked exhibit E and F respectively”.
Exhibit ‘E’ the said letter from the Director of Personnel Management, Moro Local Government Headed “MORO LOCAL GOVERNMENT BODE SA’ADU, is referenced MOLG/PD/CA/S.11/24 dated 16th July, 2003 and addressed to the Permanent Secretary, Ministry of Local Government and Chieftaincy Affairs, Ilorin and it reads: –
‘FORWARDING OF OUTSTANDING LIABILITIES OF SALARIES AND ALLOWANCES OF EX-ELECTED COUNCIL MEMBERS.’
Please refer to your radio message of 9th July, 2003 on the above subject-matter, and to forward to your office the outstanding liabilities of salaries and allowances of ex-elected Council members.
Also included is the outstanding 13 months staff salaries and leave bonuses for the years 2000, 2001 and 2002 as it affects Moru Local Government only.
Grateful acknowledge receipt please.
ALH. O. S. IMAM WARRAH
Director Personnel Management,
Moro Local Government,
Bode Sa’adu.”
See page 114 (7) of the Record of proceedings of the lower court.
At page 115 of the Records, (the annexed data of Arrears of Salary from May 2001 to December 2001), the names of the Respondents appear as follows: –
“ARREARS OF SALARY FROM MAY YEAR 2001 TO DECEMBER YEAR 2001 FOR LEGISLATIVE AND EXECUTIVE COUNCILS OF MORO LOCAL GOVERNMENT AREA, BODE SAADU.’
S/NO.2 ADELODUN LAWAL V. CHAIRMAN
TOTAL N7, 932,232.80
These include furniture allowance and severance allowance of N1, 279,584.00 each.
S/NO. 19 AKEJU A. SALMAN total arrears of salary including severance and furniture allowances of N1, 140,114.00 each = N4, 826,620.77
S/NO. 23 RAMAN MOHAMMED – same as above.
S/NO. 24 AWEDA A. SALIU – same as above.
At page 116 of the Records which contain the data for arrears of salary from the month of January, 2002 to May, 2002 for legislative and Executive Councils of Mow Local Government Area, Bode Saadu, ADELODUN LAWAL the Vice Chairman is owed a total of N1,217,376.20 whereas AKEJU A. SALMAN, RAMAN MOHAMMED and AWEDA A. SALIU the Councilors are owed a total sum of N712,571.10 each.
It is pertinent to note that at the remark columns of the respective Respondents, nothing was said about their indebtedness to the Appellants. The Respondents have in their paragraph 4 i, and j of the affidavit in support averred of the vain efforts made at negotiating for the payment of the arrears of the aforesaid salary and their respective allowances in spite of the fact that as at July 2003 and indeed on the 11th of August, 2004 the Appellants had accepted liability to the claim of the respondents two years after the respondents left office. See Exhibit ‘E’ and ‘F’ to the Affidavit of the Respondents.
The question is, can the Appellants still hide under the cloak of the limitation clause in section 178 of the local Government law to deny liability of a claim which they had earlier admitted. I think it would tantamount to a travesty of justice to allow the appellants to get away with the cake they have eaten.
There is no doubt that the philosophy behind statutes of limitation is that long dormant claims have more of cruelty than justice in them; that a defendant might have lost evidence to disprove a State claim and that persons with genuine claims should pursue them with due and reasonable diligence. See NWADIARO VS. SHELL DEV. CO. LTD. (1990) 5 NWLR (pt. 150) 322 per KOLAWOLE J.C.A. at page 338.
In this case, the Appellants having compiled the arrears of salary and allowances of the Respondents and led them into the garden path of believing that the Appellants would not repudiate liability, it would be most unconscionable to hide under the cloak of a limitation clause to now deny liability or defeat the claim of the respondents.
In LAHAN VS. ATTORNEY GENERAL OF WESTERN NIGERIA (1961) WNLR 39 which is a locus classicus on this issue, FATAYI WILLIAMS J. ( as then was) when confronted with the question as to whether a letter written by Government would prevent time from running during negotiation between the parties to the suit, quoted with approval the decision in HEWLETT v. LONDON COUNTY COUNCIL (1908) 24 I.L.R. 331 at 332 and held that: “Although it would appear from the facts of that case that the plaintiffs in the case cited above is on a much more stronger footing than the plaintiffs in this case, the decision, nevertheless seems to support the view that negotiations between parties will not stop the time from running”.
However, in NWADIARO VS SHELL B. P. supra which is on all fours with our ease the court of Appeal, per KOLAWOLE J.C.A., ONU J.C.A. (as he then was) and JACKS J.C.A. concurring, appositely put the position beyond peradventure inter alia thus:
“This dictum (in Lahan and Hewlett’s cases) is of course subject to qualification. It obviously depends upon the stage of which negotiation had reached. It must also he qualified in one other way; if there had been admission of liability during negotiation and all that remains is fulfillment of the agreement, it cannot be just and equitable that the action would be barred after the statutory period of limitation giving rise to the action if the defendant were to resile from his agreement during the negotiation.”
See again UNIVERSITY OF IBADAN VS. ADETORO (1991) 4 NWLR (PT. 185) 375 per AGORO J.C.A. following NWADIARO VS. SHELL B. P. supra.
From the foregoing, I am satisfied that from the history of this case the Respondents have not slept over their rights or acquiesced in the refusal of the Appellants to pay them their legally entitled perquisites of office as political office holders.
As an aside, the unconscionable nature of the limitation clause of the Local Government Law of Kwara state is amply demonstrated by the facts and circumstances of this case where political office holders who have served their constituencies so meritoriously can not be paid their arrears of allowances and salaries either because of bureaucratic bottle-necks or simply by the whims and caprices of the Respondent yet such a law is invoked to deny them of their rights.
This clause will definitely foster corruption in the body politic of the Local Government system as ex-office holders would have been frustrated and those aspiring to take their places would want to loot the treasury as much as they can because when they eventually leave office there is a draconian law that can always be invoked to deprive them of their owed salaries or severance and furniture allowances. Such development would not augur well for our much-vaunted democratic environment and new dispensation.
The entitlements that these Respondents are claiming are as guaranteed them by the Constitution, which empowers the Revenue Mobilization Allocation and Fiscal Commission to fix the remuneration of Political Office holders. By circular No. RCM/OHC/1/2001 dated 7th November, 2001 the Appellants were served with “Explanatory Notes on Councilors Remuneration package” by the above Commission which the Kwara State House of Assembly by the powers conferred on her adopted and passed into the Kwara State Remuneration of Public Officers Law 2001. The said Law was duly assented to by the State Governor.
By the combined effect of Exhibits E and F the Appellant had admitted liability and had led the Respondents to believe that they would be paid their entitlements. Also from Exhibits F, G and H it was clear that even after the Appellants admitted liability they could not off-set the entitlements of the respondents because of lack of funds and it was not until the first hundred days in office of the new administration that the Appellants started the process of offsetting the backlog of salaries and allowances owed.
The Respondents therefore deserve to be paid their terminal benefit in the name of equity.
I hold again that from the totality of the documentary Exhibits annexed to the affidavit of the Respondents, the Appellants admitted liability and cannot approbate and reprobate under the guise of section 178 of the Local government Law. Issue No.I of the Appellants and ISSUE NO. II of the Respondents which are one and the same are resolved against the Appellants.
ISSUE NO. III of the Appellants and Respondents.
On this issue the Learned Counsel for the Appellants has argued and placed reliance on the cases of OJO VS. ADELEKE (2002) 8 NWLR (PT. 768) 223 AT 232 and OGOLO VS. OGOLO (2003) 18 NWLR (PT. 852) 494 at 521 (S. C.) to submit that the law places a duty on the trial court to make a finding on the evidence before it and to give full and dispassionate consideration of all the issues raised and canvassed and that in the instant case the court below failed In his duly and his judgment should not be allowed to stand.
On his part, the learned Senior Advocate for the Respondents has argued on the contrary that it is the discretion of the trial court and not that of the court of Appeal to determine whether a triable issue has been disclosed in an affidavit of intention to defend. CHINAGOE VS. NAMBATIVE (2001) 2 NWLR (PT. 698) 529 at 544 refers.
References were made to some paragraphs of the Appellants affidavit at pages 48 and 49 of the Records and also Exhibit ‘B’ to the Affidavit in support of the Notice of Intention 10 defend on pages 53-60 of the Records and citing the cases of TAHIR VS. UDEAGBALA HOLDINGS LTD. UTC (NIG.) LTD VS. PAMOTEI (1989) 2 NWLR (PT. 103) 244 at 299 per NNAEMEKA AGU J.S.C. and OLUKADE VS. ALADE (1976) 2 S.C. 183, 186.192 he submitted that The learned trial Judge was justified in entering judgment for the Respondents on the documents before him.
Moreover, Order 23 Rule 3(1) of the High Court Rules of Kwara State envisages that the affidavit in support of the Notice of Intention to Defend is one disclosing a defence on the merit and not one that al least established a prima-facie case, he further submitted.
He submitted also that the Appellants want this court to allow them to bring oral evidence to displace documentary evidence which they tendered in the lower court and that the learned trial court being satisfied that the affidavit of the defendants disclosed no defence refused to place the case on the general cause list and accordingly ruled as he did at page 70 of the Records.
In order to resolve this issue, it is necessary to have recourse to the averments of the defendants/Appellants where the Agricultural loan said to have been obtained by the Respondents and written off in lieu of their arrears of salaries and allowances was alluded to.
In paragraphs 14-16 of the respondents Affidavit, the following facts were averred:
“14. That apart from the loan issue, I also know as a fact that the plaintiffs took Agricultural loans from the 2nd Defendant which were never repaid.
“15. That at the meeting held on 13th March, 2002, the plaintiffs along with the other members of the 2nd Defendant Executive Council of the time, resolved to write off the Agric loans taken by them. A copy of the minutes in this regard is attached herewith as exhibit B.”
“16. That I know as a fact that the loans of the plaintiffs that were written off was in consideration of any salary that was owed to the plaintiffs at that time”.
Now a careful perusal of Exhibit B, the minutes of the 2nd Appellant’s Executive Council meeting of 13th March, 2002 at page 56 of the Record of proceedings discloses the following: –
“Request to write off Agric loan obtained from Union Bank by the Local Government Staff political office holders and some farmers in the Local Government Area and Guaranteed by the Local Government.”
“The chairman recalled the memories of Executive members of the Agric loan granted to the Local Government Staff, political office holders and Some farmers in the Local government area by the Union Bank of Nigeria PLC, in March, 2001. He briefed the members that there were reports from those who obtained the loan of poor harvesting due to shortage of rains In the mid year of 2001, which subsequently affected farmers plantations and led to poor yielding and smaller incomes from the farm, where thousands of naira Were spent invested.
He said as a result, the LG. staff, the Political office holders and the farmers that obtained the loan have been approaching him requesting for the written off (sic) of the loan, because of their inability to pay as expected.
At page 57, which contains the resolution of the Executive Council the minutes stated:
The Executive Council unanimously resolved that the Agric loan should be written off. The members of the Executive Council hold the view that such action will reduce the sufferings of the farmers the Local Government Staff and the Political office holders especially to cushion the bad effect of non-payment of salaries in the last one year had created on the lives of the Local Government staff and their families.”
“The members of the Executive further resolved that such action of the Local Governments should be regarded as complimentary to the Federal Governments programme on poverty Alleviation since the loan cut across the Local Government.”
With the above in mind can there be anything to prevent the lower court to hold as he did at page 4 of his Ruling that:
“The authorities are clearly in support of the defendant making credible allegations amounting to a defence on the merit to cause a matter to be transferred to the general cause list from the undefended list, it is never granted upon the making of a wild allegation or mere barren assertion or half hearted defence-MUO BIKE v. NWIGWE supra at 635.”
Where for instance, the minutes which was tendered by the Appellant disclosed no evidence to the effect that the loan was written off in lieu of the salaries of the Respondent whereas it is crystal clear that the write off was as a result or poor narveats owing to paucity of rain fall consequent upon which the farmers as well as the Local Government staff and political officers holders who had not been paid their salaries for months suffered untold hardships with their families and could not repay the loan, can this defence be said to be prima facie defence or on the merits.
Again where it has been clearly seen from the minutes that there was a unanimous resolution to write off the loan to cushion the effect of non-payment of salary to Local government Staff and political office holder for the last one year and to compliment the poverty alleviation programme of the Federal Government, was the court not right to have held that the allegations of the appellants were wild, merely barren assertions or halfhearted defence. I think that we expecting too much from the learned trial judge if we hold in the face of his judgment that he ought to consider a sham, frivolous and spurious defence as has been put forward by the Appellants on the issue of the Agric loan.
Order 23 Rule3(1) of the Kwara State High Court Civil Procedure Rules envisages a situation where a party delivers his notice of intention to defend “together with an affidavit disclosing a defence on the merit” before the court can exercise its discretion to give him leave to defend.
For the court to be satisfied that there is a defence on the merit, there must be some triable issue(s) or material cogent and compelling enough to warrant further investigation from such affidavit it must disclose a defence that cannot be easily wished away or ignored by the trial court The defence must not be vague, evasive, or frivolous it must not be a sham defence calculated to waste the time of the court or as fanciful as in this case where Exhibit B attached to the affidavit of the Appellants in proof the fact that the loans were written off in lieu of the Respondents salary shows the contrary. See OFOMATA VS. ONWU ZULIGBO (2002) FWLR (PT. 89) 1246 at 1259.1260, A.C.B. LTD VS GWAGWADA (1994) 5 NWLR (pt.342) 25; OLUBUSOLA STORES VS. STANDARD BANK OF NIGERIA LTD (1975) 4 S. C. 51, OSSY JIPREZE VS. OKONKWO.
Accordingly I am of the firm view that the trial court was right in ignoring or discountenancing that defence which to my mind was a proper exercise of his discretion.
In MUOBIKU VS. NWIGWE (2000) 1 NWLR (PT. 642) 620 at 637 FABIYI J.C.A. Stated the position of the law as far as the exercise of the court’s discretion in undefended list suits are concerned thus:
“To succeed in reversing the exercise of discretion by the lower court, the appellant must show that in exercising its discretion the lower court took irrelevant matters into consideration or omitted to take relevant matters into consideration. See ABEKI VS ANIBORO (1961) ALL NLR 368 at P.370. Where exercise of discretion is perverse such can be reversed. See UNIVERSITY OF LAGOS VS. AIGORO supra at pages 148 – 149. Discretion must be exercised not only judicially but judiciously as well. See SAFFIDDINE VS. COP. (1965) 1 ALL NLR 54. Where relevant points are brushed aside or it is in the interest of justice, the court can interfere. See ENEKEBE VS. ENEKEBE (1964) 1 ALL NLR 102 at 106. Discretion must be exercised according to justice and common sense. See ODUSOTE VS. ODUSOTE supra at 219.”
In this case the impression has been created that the court did not exercise its discretion judiciously and judicially on the defence of Agric loan proffered by the Appellants and we have been called upon to hold that a retrial is the proper order to be made in the circumstances.
I beg once again to disagree with the submissions of the learned Appellants counsel in this respect.
Every case should be decided on its peculiar facts and circumstances. In this case where the affidavit of the Appellants on the issue of Agric loan contradicts Exhibit B tendered by them, the Respondents had no responsibility to join issues or swear to a further and better affidavit. Even on the basis of Exhibits E and F to the affidavits of the Respondents the Appellants had admitted to the claim of the Respondents and all the Defences proffered by them have been aptly described by the lower court as barren, half hearted and unfounded.
Even then this was a case fought purely on documentary evidence without the necessity of oral evidence or the watching of the demeanour of witnesses so as to gauge their credibility.
Ordinarily the case of OJO VS ADELEKE and OGOLO VS. OGOLO would have been apposite if the credibility of witnesses was in issue such that this court would not have filled the vacuum created by the lower court.
However since this case was decided purely on documentary evidence it is necessary to recall the words of ESO J.S.C. in the celebrated case of EBBA VS. OGODO(1984) 4 S.C. 84 at 98.99 that; “the division of labour between the trial court and court of Appeal does not exist where the question does not involve the credibility of witnesses, for in such a case the court of Appeal will be in a proper position to evaluate, as the trial court the evidence which has been given in the case since in such cases, the matter in dispute has been completely narrowed down to inferences that could be drawn from proved facts, without going through the rigour of credibility of witnesses. When we have this type of cases, the court of appeal should not shrink from the task of such evaluation or be inhibited there from, just because it is a court of Appeal’.
The Supreme Court reechoed this principle in the case of UZOCHUKWU VS. ERI (1997) 51 LRCN 1792 Per IGUH J.S.C. with whom BELGORE J.S.C. ( as he then was), OGWUEGBU, UTHMAN MOHAMMED, ONU JJJS.C. concurred inter alia at page 1809 thus:-
“I think it is necessary to draw attention to the well known distinction between the finding of a specific fact based on the demeanour and credibility of a witness as against a finding of a fact which to all intent and purposes is but a deduction or inference drawn from documentary evidence before the court or from facts specifically found established in the case of the latter however, the appellate court will more readily form an independent opinion than the case of the former, which involves evaluation of evidence of witnesses, particularly where the finding was based on their hearing demeanour or credibility. See OKPIRI VS. JONAH supra, SENMAX VS. AUSTIN MOTORS CO. LTD. (1955) A.C. 370, LAWAL VS. OAWOOU (1972) 8-9 S.C. 83 at 114-115, BALOGUN VS. AGBOOLA and WOLUCHEM VS. GUO, supra.”
The authority of UZOCHUKWU VS. ERI supra at page 1812 also stressed that parties are bound by their pleadings and evidence, which is at variance with the averments in the pleadings goes to no issue. In this case Exhibit B to the Affidavit in support of the notice of intention to defend was at variance with paragraphs 14-16 of the said affidavit in respect of the averment that the Agric loan was written off in lieu of the salaries of the Respondents, whereas the contrary is the case.
The lower court was even on very sound ground to refuse to comment on it in his judgment (if at all) he did not so do.
Finally on the order of retrial sought by the Appellants. I further commend the dictum of OGBUEGWU J.S.C. in the same ease to the learned counsel for the Appellants. See page 1818 of UZOCHUKWU VS. ERI supra where he said:
“The appellants have in the alternative urged us to make an order for retrial. Such an order Implies that one of the parties, usually the plaintiff, Is being given another opportunity to relitigate the same matter and before deciding to make such an order, an appellate court should be satisfied that the other party Is not thereby being wronged to such an extent that there would be a miscarriage of justice.” See AYOOLA VS. ADEBAYO & ORS (1969) ALL NLR 154 at 159.
An order for retrial is not appropriate in this case where the plaintiffs failed to prove their case.”
In our instant case since this court is in a proper position to appraise or infer from Exhibit B tendered by the Appellants who are seeking a retrial, an order of retrial will only give them an opportunity to lead oral evidence to displace the documentary evidence which they relied upon at the trial and this court can not afford them such a second chance because as the learned senior advocate has ably submitted, section 132 of the evidence Act Cap. 112 LFN prohibits such an indulgence, as it would occasion a miscarriage of justice to the Respondents.
In the circumstance, I shall also resolve issues Number III of both the Appellants and Respondents against the Appellants.
On the whole, considering the fact that my Lord Sankey bas also found on issues Number II & III as formulated by the Defendants/Appellants that the defence in the affidavit of the Appellants was nothing but a sham, I also so hold that even the reliance on section 178 of the Local Government Law is an after thought calculated to save the already drowning Defendants/Appellants who are clinging to quick sand in order to save themselves from the liability they had earlier admitted.
In essence this Appeal lacks merit and is accordingly dismissed in its entirety uphold the judgment of the lower court and award N10, 000.00 cost in favour of the Respondents.
Appearances
Obi Okwusogu Esq., with Y. L. Akanbi Esq. For Appellant
AND
Alhaji Aliyu Salman, SAN., with Ibrahim Jimoh Esq. For Respondent
