Tajudeen Aro V. Lagos Island Local Government Council (2000)

LawGlobal-Hub Lead Judgment Report

ONNOGHEN, J.C.A. 

This is an appeal against the ruling of Hon. Justice M. A. Ope-Agbe of the Lagos State High Court sitting in Lagos High Court, delivered on the 26th day of May, 1995, in suit No. LD/3144/92 in which he set aside an earlier judgment in the suit which he delivered on 18th June, 1993.

The facts of the case are that the appellant was until the 27th day of March, 1991, when his appointment was terminated, an employee of the respondent. Following the termination the appellant instituted an action at the Lagos High Court challenging the termination. All the processes, including motion for judgment, were duly served on the respondent who took no steps to defend the action. Since the reliefs claimed by the appellant include declaration the learned trial Judge ordered the appellant to lead evidence in proof of his claim which was done. Learned counsel for the appellant addressed the court which entered judgment against the respondent on the 18th day of June, 1993.

Following that judgment the respondent filed an application before the High Court for an order setting aside the said judgment in default of appearance and exhibited a proposed statement of defence thereto. The application was opposed and after hearing arguments the learned trial Judge in a considered ruling on 26th May, 1995, set aside the earlier judgment. Dissatisfied with that ruling the appellant has appealed to this court on five grounds of appeal out of which learned counsel for the appellant has formulated four issues for the determination of the court in his brief of argument filed on 22/7/97 and adopted on 19/4/2000. The respondent has cross-appealed against the said ruling of the court delivered on 26th May, 1995, with the leave of this court.

The issues for determination as formulated by learned counsel for the appellant, Seyi Sowemimo, now SAN, are as follows:
“(1) Is the Local Government Edict No.16 of Lagos State, 1976, an existing law so as to afford the defendant/respondent a valid defence to the plaintiff/appellant’s case.
(2) Did the learned trial Judge exercise his discretion judicially and judiciously in setting aside his earlier judgment when he had already found that the defendant/respondent had failed to proffer sufficient and acceptable reasons to excuse their non-appearance in court.
(3) Is the provision of Section 167 of the Local Government Law of Lagos State of 1976 in conformity with the provisions of Sections 6 and 33 of the Constitution of the Federal Republic of Nigeria, 1979.
(4) Whether the provisions of Section 168 of the Local Government Edict No. 16 of 1976 is applicable to cases concerning a breach of contract.”

On issue No. 1 learned counsel submitted that the learned trial Judge erred in holding that Edict No. 16 of 1976 is an existing law under Section 274(1) of the 1979 Constitution because by Section 176(1) of the Local Government Law No.1 of 1980 of Lagos State the said Edict No. 16 of 1976 was repealed. That the Local Government Law No. 1 of 1980 was in turn repealed by the Local Government Law No. 7 of 1985 section 1 thereof. That section 1 of the 1985 Law cannot amend Edict No. 16 of 1976 as it purports to do since the said Edict No.16 of 1976 had ceased to exist and was never re-enacted. That a repealed enactment is treated as if it never existed and cannot be looked at. For this, learned counsel cited and relied on Legal Practitioner Ordinance In Re: Mclver v. Edewor (1968) 1 All NLR 226 and Oruche v. C.O.P. (1963) 2 SCNJ 132; (1963) 1 All NLR 262.
That Edict No. 16 of 1976 no longer appears in the volumes of the Laws of Lagos State.

The second reason given by learned counsel for the appellant that Edict No. 16 of 1976 is no longer an existing law is that the Local Government (Transitional Provisions) Decree No. 15 of 1989, being a Federal legislation sought to provide a uniform, comprehensive and exhaustive code for the operation of Local Governments throughout the country. That by section 1 of that Decree all Local Governments owe their existence to the Decree. That by the doctrine of covering the field, Edict No. 16 of 1976 cannot be an existing law. That where Federal and State Legislatures have concurrent powers of legislation with respect to a given subject-matter, and the Federal Legislature by enactment manifests an intention to cover the whole field, any State Law dealing with the same matter would be inconsistent with the Federal Law dealing with the same matter and will therefore be void, learned counsel further submitted. For this submission learned counsel cited Lakanmi Kikelomo Ola v. The A.G., Western Nigeria & Ors. (1969 – 1970) NSCC 143.

That upon the promulgation of Decree No. 15 of 1989, the Local Government Law of Lagos State became impliedly repealed.
That there was therefore no reason for Edict No. 16 of 1976 to continue to operate as an existing law. That if the Edict no longer exists, it cannot provide a possible defence to an action.

In his reply as contained in the respondent/cross-appellant’s brief filed on 13/2/98, Kola Awodein, now SAN, submitted that the learned trial Judge is right in coming to the conclusion that Edict No. 16 of 1976 is an existing law for the reasons that:
(1) Whilst it is true that the Local Government Edict, No. 16 of 1976 was purportedly repealed by the Local Government Law, 1980, the latter law was on the 31st day of July, 1980 declared by a court of competent jurisdiction to be unconstitutional, null and void and of no effect whatsoever. For this learned counsel cited and relied on Chief Sule Balogun and Ors. v. A.G. of Lagos State & Ors. (1981) 2 NCLR 589. That there is no appeal against that judgment.
(2) That at the time Edict No. 7 of 1985 was promulgated, the 1976 Local Government Edict was in full force and effect.
(3) That the trial Judge is correct in concluding that the amendments in Law No. 7 of 1985 relate back and took effect from 10 September, 1976.

In the alternative learned counsel submitted that the repeal of the 1980 Law by Edict No. 7 of 1985, had the effect of reviving the 1976 law. For this learned counsel referred the court to Maxwell on Interpretation of Statutes, 12th Ed. (page 19), Eton College v. Minister of Agriculture (1964) Ch. 274.
That there is no statutory provision in the interpretation Law overriding this well established common law principle.
On the doctrine of covering the field learned counsel for the respondent submitted that the argument is untenable in that:
(1) A close examination of Cap. 213, Laws of the Federation of Nigeria, 1990, shows that it was never intended to cover the field as contended by the appellants. That Sections 1(3)(4) 5, 7 and 70 of the said Law clearly show a recognition of the right of the State or empowered the State to Legislate on the subject of Local Government.
(2) That the two laws are meant to complement each other.
(3) That Cap. 213 of the laws of the Federation 1990, is a transitional provision designed to govern the conduct of elections into the 4th Republic.
(4) That both the 1976 Law and Cap. 213, Laws of the Federation of Nigeria, 1990, are not really inconsistent with one another and can indeed exist side by side.

That the question whether or not the 1976 Edict is an existing law raises a substantial point of law and a defence predicated in part on non- compliance with the said Law affords a reasonable defence on the merits to the suit. That the learned trial Judge properly held that a reliance on Edict No. 16 of 1976 raises a reasonable defence on the merits to the plaintiff’s action.

In his reply brief filed on 18/3/98, learned counsel for the appellant submitted that the case of Balogun and Ors v. A.G of Lagos State (supra) is a decision of a court of co-ordinate jurisdiction and as such could not in fact have been binding; and that there is no appeal in this case to the effect that the learned trial Judge was in error in proceeding on the basis that the 1980 Local Government Law was a valid legislation.

Thirdly, that the 1980 Local Government Laws was superseded by another Local Government Law No. 4 of 1982, Section 181 of which expressly repealed the 1976 Local Government Law.
Fourthly, that the Local Government Law, 1983 in section 181 thereof repeals both the Local Government Law of 1976 and that of 1982.
That it cannot therefore be said that the 1976 Local Government Law was in existence up till 1985.

On the issue of repeal and revival or resuscitation of a previously repealed Law, learned counsel submitted that the repeal of the 1980 Local Government Law or any law thereafter could not lead to a resuscitation of the 1976 Law given the fact that the common law doctrine of revival of statutes has been statutorily modified by section 11(1) of the Interpretation Act, 1889, being Statute of General Application and applicable to Lagos State having been made in England before 1900. For this learned counsel referred the court to Craies on Statute Law pages 419 and 355.