Lawan Sanda V. Kukawa Local Government & Anor (1991)

LawGlobal-Hub Lead Judgment Report

B. WALI, J.S.C. 

The only issue that arises for determination in this appeal is whether the Court of Appeal was right in holding that the appellant’s action, having not been commenced within the period prescribed by Section 175 of the Local Government Law 1976 of Borno State, was statute barred. The appellant’s claim in the Maiduguri High Court of Borno State was for-

“(a) A declaration that this purported termination from the service of the Kukawa Local Government as the Village Head of Gashagar from the 12th day of December, 1983 and the appointment and installation of the 2nd defendant as the Village Head of Gashagar is wrongful, unconstitutional and therefore null and void. And that he is entitled to continue in his office as the Village Head of Gashagar.

(b) An interim injunction restraining the first defendant from appointing anybody as the Village Head of Gashagar until the matter is determined.

(c) A payment of the sum of (N10,000.00) Ten thousand Naira being general damages for the wrongful termination.”

Pleadings were filed and exchanged. Each side adduced evidence. After considering the evidence the learned Judge Adefila, J., impliedly opined that section 175 of the Local Government Law did not apply and then concluded-

“that the termination of the plaintiff, Lawan Sanda as the Village Head of Gashagar was wrongful, unconstitutional and therefore null and void. He should be re-instated immediately. The second defendant’s appointment was null and void and therefore he should be removed.”

The respondents appealed against the judgment to the Court of Appeal, Jos. In a well considered judgment of that court by Agbaje, J.C.A. (as he then was) with which Abdullahi, J.C.A. (as he then was) and Macaulay, J.C.A., both agreed, he allowed the appeal and concluded-

“that the learned trial Judge was wrong in holding that the plaintiff’s action was not time barred by section 175 of the Local Government Edict.

It was as result at that decision that the appellant has now appealed to this court.

Both the appellant and the 1st respondent filed and exchanged brief of arguments. On 10th December, 1990 when the appeal came up for hearing Mrs. L.B.J. Nggilari, Solicitor-General, Borno State, appeared for the 1st respondent. There was no appearance by the appellant or his counsel nor for the 2nd respondent who did not even file a brief. Some explanation for the absence of the appellant’s counsel was given by the 1st respondent, and having regard to the provision of subsection 6 of rule 2 of Order 6 of the Supreme Court Rules, 1985, which provides that-

“When an appeal is called and no party or any legal practitioner appearing for him appears to present oral argument, but Briefs have been filed by all the parties concerned in the appeal, the appeal will be treated as having been argued and will be considered as such.”

this court decided to treat the appellant’s appeal as having been argued. Learned counsel for the 1st respondent adopted the 1st respondent’s brief and then referred to the appellant’s brief in which the issue of the unconstitutionality of section 175 of the Local Government Law was raised. She submitted that the issue was never raised in the grounds of appeal, nor was the leave of this court subsequently sought to raise it. She therefore urged this court to ignore any arguments advanced in support of that.

I have myself carefully read and studied the grounds of appeal filed by the appellant, I cannot find in the said grounds, where the issue of unconstitutionality of section 175 of the Local Government Law was raised. The objection raised by the learned Solicitor-General is well taken and is accordingly sustained. A party is not generally allowed to raise and canvass an issue not raised in the court below without leave first being sought and granted. See Abaye v. Ofili & Anor. (1986) 1 N.W.L.R. (PUS) 134 and Bakin Salati v. Talie Shehu (1986) 1 N.W.L.R. (Pt. 15) 198. The concise facts of the appellant’s case are as averred in the following paragraphs of his statement of claim:-

“1. The plaintiff is Lawan Sanda and he lives at Gashagar Village in Kukawa Local Government Area of Borno State, while the Defendants are the Kukawa Local Government which has its head quarters at Kukawa and Kaka Lawan who also lives in Gashagar Village in Kukawa Local Government Area of Borno State.

2. The plaintiff avers that he was validly elected the Village Head of Gashagar in Kukawa Local Government by a majority of Bulamas i.e. Ward Heads in 1980 and was appointed the Village Head of Gashagar by the Kukawa Local Government in accordance with provisions of section 59(2)(b) of the Local Government Edict (Amendment) Law 1979.
3. x x x x x x x x x x x x x
4. Since his appointment, the plaintiff has been performing the functions of his office as Village Head deligently to the best of his ability and there has not been any adverse report against him

either from the first defendant or any other person.

5. x x x x x x x x x x x X
6. By a letter reference No.SAD/KUK/S/1/VOL.1/140 dated 12th December, 1983 the first defendant wrongfully terminated the services of the plaintiff as the Village Head of Gashagar.
7. x x x x x x x x x x x x
8. x x x x x x x x x x x x

In consequence of the action of the first defendant, the Plaintiff has unlawfully been denied the right of performing his lawful duties as the Village Head and has also been denied the salary and other facilities attached to the said office.

11. On the 27th day of August, 1984, the plaintiffs Counsel on his behalf did serve the first defendant Statutory Notice in accordance with section 176 of the Local Government Edict No.6 of 1977 of the intention of the plaintiff to commence legal action against the first defendant but the first defendant either refused or neglected to take any action in respect of the said matter.”

In paragraph 11 of the Statement of Defence filed by the respondents, he raised the special defence of statutory limitation to the action wherein it was averred that –

“… this action is statute barred since action has not been commenced within 6 months as stipulated by section 175 of the Local Government Edict, 1976 …”

The only germane issue for determination is as formulated by the appellant in his brief of arguments, which was adopted by the respondent. It reads-

Whether the Court of Appeal was right in holding that the plaintiff/appellant’s action was statute barred by virtue of section 175 of the Local Government Edict (Law) 1976 of Borno State.”

The appellant, who was P.W.1 in this case stated in his evidence as follows-

“I was elected by the Ward heads as the village head. We then went to the District Head. The District Head Zanna gave me a letter. I took the letter to Kukawa. It was a letter of appointment. I went to Shehu. He turbanned me. I returned home after the turbanning. I started my work as the village head. All these happened about five years ago in 1980, I was later given a dismissal letter from the Local Government.”

The letter of dismissal was tendered and admitted in evidence without objection. It was marked Exhibit A. It reads as follows

“Ref No.SAD/KUK/S/1/VOL.1/140

Kukawa Local Government,

Kakawa.

12th December, 1983.Lawan Sanda,

Village Head Gashagar,

U.F.S.

The District Head,

Mobbar District,

Damasak.TERMINATION OF APPOINTMENT OF

LAWAN SANDA VILLAGE HEAD OF GASHAGAR

I have to inform you that after studying the report of the Investigation Committee established by the Sole Administrator Kukawa Local Government Area, it was found that, the Sole Administrator is satisfied with the report and recommendation of the investigation Committee that, you have been found of:-

(i) General Misconduct,

(ii) General inefficiency consist of a series of acts,

(iii) Absent from duty station without permission.

2. In view of the above the Local Government have no other alternative but to terminate your appointment as Village Head of Gashagar from its services with immediate effect.
3. Thank you for your usual co-operation, please.

(Sgd.) ALI WASARAM,

SOLE ADMINISTRATOR,

KUKAWA AREA.

SAD/KUK/S/ 1/VOL.1/135

Kukawa,

12th Nov., 1983.”

After receiving Exhibit A, the appellant did nothing towards effective implementation of the challenge to his dismissal until after 9 months when Exhibit B was written to the Kukawa Local Government by his counsel, purporting to comply with section 176 of the Local Government law of Borno State. Exhibit B reads as follows-

“27th August, 1984.

Ref. No.SB/GCR/KUKLG/1/126

The Secretary,

Kukawa Local Government,

Kukawa,

Borno State.

Dear Sir,

NOTICE OF INTENTION TO COMMENCE LEGAL

ACTION AGAINST KUKAWA LOCAL GOVERNMENT

SECTION 176 THE LOCAL GOVERNMENT LAW 1976

TAKE NOTICE that we, as Solicitors to Lawan Maina Sanda of Gashagar, acting on his instructions, intend to commence legal proceedings against Kukawa Local Government, one month at least after this Notice has been served on you.

2. The cause of action will be based on a letter dated 12th December, 1983 addressed to our client by the Kukawa Local Government, reference No.SAD/KUK/S/1/VOL.1/140 purporting to terminate our client from the employment of the Local Government with effect from the 12th day of December, 1973.
3. It is our client’s contention that his termination from the services of the Local Government is wrongful in that it is not in accordance with the custom of the area and of his office as a Village Head, neither is it in accordance with natural justice in that the he was never informed of any offence committed by him let alone giving him an opportunity to defend himself.
4. Our client will claim in the suit among other things declarations that his purported removal from the office is wrongful and therefore null and void that he is entitled to continue in office as a Village Head and/or damages limited to N10,000.00 (Ten Thousand Naira) for wrongful termination.
5. We would be grateful, if you would acknowledge and return to us the copy of this Notice also enclosed herewith along with the original.

Dated this 27th day of August, 1984.

Original received by… )

Designation:…)

Date:… )

Sgd. 13/9/84

Ahmed J. Igoche,

pp: SANYAOLU, BA’ABA

AND CO.”

It was after Exhibit B that the appellant instituted the action on 3rd October, 1984.

Section 175 of the Local Government Law of Barno State provides as follows

“When any suit is commenced against any Local Government for any act done in pursuance 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 after the act, neglect or default complained of, or in the case of a continuance damage or injury within six months after the ceasing thereof.”

The germane issue for determination in this appeal, as I have earlier stated in this judgment, is whether or not section 175 of the Local Government Law applies to bar the action. It is not in my view, whether or not the appellant’s appointment was validly terminated or that he was lawfully dismissed from office, but when he was actually terminated as this would determine when the cause of action accrued in order to compute when the period started running.

The appellant’s action is based on breach of contract of employment between him and the 1st respondent. In actions for breach of contract, the cause of action accrues for the plaintiff’s benefit from the time the breach of the contract is committed and not when the damage is suffered. The period of limitation will begin to run from the date the cause of action accrues. See Rhodes v. Smethurst 150 E.R.1335; Pritam Kaur v. Russel & Sons Ltd. (1973) I All E.R.617 and Egbe v. Adefarasin (1985) 1 N.W.L.R. (Pt.3) 549. In the present case, section 175 of the Local Government Law has provided special limitation for instituting action against the Local Government for the type of breach complained of by the appellant. It must be “commenced within six months next after the act,” otherwise it will become statute barred.

The appellant was dismissed from service by the 1st respondent from 12th December, 1983, the date Exhibit A was written as it stated that the termination was with immediate effect. The time would therefore start running against the appellant the day next after Exhibit A was written and received by the appellant. The appellant’s case was commenced on 23rd October, 1984, that is ten months after the accrual of the cause of action. Even allowing for a period of 7 days for service on him of Exhibit A the action was filed well out of time by almost 5 months. Ignorance of the statutory limitation provision by the appellant and/or his counsel is no defence. See Cartledge v. E. Jopling and Sons Ltd. (1963) A.C. 758.

The learned trial Judge referred to and quoted the provision of section 175 of the Local Government Law at the tail end of his judgment but failed to relate the provision to the facts of this case. This is a clear misdirection in law. The facts in The General Manager, Nig. Railway v. U.A.C. Limited (1954) 14 W.A.C.A. 631 cited and relied upon by the trial Judge are not relevant to the case in hand and therefore the ratio decidendi in that case does not apply.

The end result of this appeal is that it fails in toto and it is accordingly dismissed. The judgment and orders of the Court of Appeal are hereby affirmed. N500.00 costs is awarded to the 1st respondent against the appellant.

SC.122/1987