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.
Learned counsel then submitted that with the repeal of the 1976, 1980, 1982 and 1983 Laws, what was left on the statute books in Lagos State was the 1985 Local Government Edict No. 7 alone. That the law did not contain words that could be said to amount to a re-enactment of the 1976 Law but sought to amend same. That no amendment is possible in relation to a repealed law. Citing, Macfoy v. UAC (1962) AC 152 at 160 learned counsel submitted that you cannot put something on nothing and expect it to stay there.
Learned counsel further referred to Section 6(1)(a) of the Interpretation Law of Lagos State and submitted that it negates the Common Law position relied upon by his learned friend on the issue of repeal and revival of statute.
I have carefully gone through the argument of both counsel and the authorities cited in support of their contending positions.
As regards the issue under consideration both parties are agreed that Edict No. 16 of 1976 was repealed by Section 176(1) of the Local Government Law No. 1 of 1980 of Lagos State which provides as follows:
“Subject to the provisions of this section the Local Government Edict 1976 and all instruments made thereunder are hereby repealed and all local government authorities established thereunder stand dissolved on 31st March, 1980 or such earlier date as the Governor may appoint.”
However, Section 274(1)(b) of the Constitution of the Federal Republic of Nigeria, 1979 (hereinafter referred to as the 1979 Constitution) defines an existing law as follows:
“274(1) Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be…”
(b) a Law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws.”
Section 7(1) of the 1979 Constitution provides inter alia that every State in Nigeria shall ensure the existence of a system of democratically elected Local Government Council under a law which provides for the establishment, structure, composition, finance and functions of such councils.
By the combined effects of Sections 7(1) and 274(1)(b) of 1979 Constitution it is clear that Edict No. 16 of 1976 which provides for the establishment, structure, composition, finance and functions of Local Government Councils in Lagos State qualifies as an existing law prior to its repeal by the 1980 Law supra.
Learned counsel for the appellant has argued that since Edict No. 16 of 1976 was repealed it ceased to exist and therefore could not have been amended by section 1 of the Local Government Law No. 7 of 1985 as it purports to do.
On the other hand, learned counsel for the respondent has referred the court to the decision in the case of Chief Sule Balogun & Ors. v. A.G. of Lagos State & Ors. (1981) 2 NCLR 589 as regards the legal status of the Local Government Law No. 1 of 1980 which purported to repeal Edict No. 16 of 1976.
I have gone through that decision of A.L.A. Balogun J. and I confirm that at pages 670 and 671 of the report, the learned trial Judge ordered as follows:
“1. As against the first, second and third defendants, as sued, I hereby make an order of declaration, and I hereby declare that the Local Government Law, 1980, which, inter alia purports to vest in the Governor of Lagos State the power to establish, create or constitute new Local Government Councils in the State or to reduce the area Councils, is unconstitutional, void and of no effect whatsoever.
2. As regards the first, second and third defendants, I hereby make an order of declaration, and I declare, that each and every subsidiary instrument made or purported to be made by the Governor of Lagos State or by any other person or agent whomsoever under the Local Government Law, 1980, or in purported exercise of powers conferred under that law is unconstitutional, void and of no effect whatsoever.”
There is therefore no doubt that by the exercise of the constitutionally guaranteed judicial powers of the court, the 1980 law which purported to repeal the 1976 law was itself ‘repealed’ by a judicial decision vide a declaratory order. The legal effect of that decision is that the 1980 Law ceased to exist thereby leaving the 1976 Edict intact and valid.
The decision of Balogun J. supra has not been appealed against so it is still good law. The effect of that judgment is that as at the time it was delivered, the Local Government Edict No. 16 of 1976 was the existing law despite its purported repeal by the 1980 Law.
However, Section 181 of the Local Government Law No. 4 of 1982 provides as follows:
“Subject to the provisions of this section the Local Government Law of 1976 is hereby repealed.”
That apart, section 181 of the Local Government Law of 1983 which is exactly as section 181 of the 1982 Law repealed the Local Government Law of 1976 and that of 1982.
The position or the status of the 1976 Law being what is stated above, I agree with learned counsel for the appellant that the 1976 law having been repealed ceased to exist and can therefore not be amended by a subsequent legislation as purportedly done by section 1 of the Local Government Law No. 7 of 1985 which provides thus:
“The Local Government Law 1976 (hereinafter referred to as the Principal Law) is hereby amended as stated in this Edict”
The next sub-issue to be determined is whether by the laws of Lagos State the common law principle that once a repealing statute is itself repealed, the original statute repealed is revived and comes into full force and effect applies to Lagos State and thereby to the case under consideration.
It has been argued forcefully by the learned counsel for the respondent that where the question is whether the repeal of an enactment has revived the statutes which the enactment has previously repealed, the answer must be sought in the common law position on the subject and not in Section 6(1)(a) of the Interpretation Law and that the interpretation of the said section 6(1)(a) must be approached from the principle on which a previous legislation is relevant to the interpretation of a later statute.
On the other hand, learned counsel for the appellant has argued in his reply brief that the common law position is not tenable in Lagos State where there is a Statute of General Application existing in England by the year 1900 applicable to the subject-matter and secondly, that Section 6(1)(a) of the Interpretation Law of Lagos State applies and negates the submissions of his learned friend.
I agree with the submission of learned counsel for the appellant that where there is a Statute of General Application applicable to the State modifying the common law position on the subject-matter, the principles of law applicable are those as modified and stated in the Statute of General Application not those of the common law simpliciter.
What then is the position of the law in England relevant to Lagos State? The learned authors of Craies On Statute Law at page 419 state as follows:-
“Although an Act of Parliament, after it has been repealed, must be considered as if it had never existed, the rule does not prevent its being revived. Until 1850 the rule adopted with regard the revival of repealed Acts of Parliament was laid down in 2 Co. Inst. 686 viz: “as by the repealing of a repeal, the first Act is revived so by reviving of an Act repealed the Act of repeal is made of no force.”
But the present rule, now embodied in Section 11(1) of the Interpretation Act, 1889, is that where an Act passed after the year 1850 repeals a repealing enactment, it shall not be construed as reviving any enactment previously repeal unless words are added reviving that enactment.
See also page 355 supra where the learned Authors elaborated as follows:
“Where an Act passed after 1850 contains a clause repealing a repealing enactment, this does not revive any enactment previously repealed, unless words are added reviving the last mentioned enactment. This provision supersedes the canon of construction previously adopted, and alters the presumption as to the intention to revive a defunct law.”
It is very clear from the above quoted passages that the common Law position on the subject under consideration, in England has been modified by statute. It is obvious that the Interpretation Act of 1889 existed before 1900 being the cut off date for application of inter alia Common Law and Statutes of General Application in England, to Lagos State.
That apart, I do not agree with learned counsel to the respondent that Section 6(1)(a) of the Interpretation Law of Lagos State does not apply to the matter under consideration. It provides, inter alia, as follows:
“6(1) The repeal of an enactment shall not:
(a) revive anything not in force or existing at the time when the repeal takes effect”
This provision is almost the same as that of the English Interpretation Act of 1889 section 11(1). It is my considered view that by the operation of Section 6(1)(a) of the Interpretation Law of Lagos State, the repeal of a statute will not revive any statute which was not in force at the time the repeal takes effect.
In the case under consideration, it is not in doubt, that the 1976 law was repealed by the 1982 and 1983 Laws. It follows that by the time the 1983 law was repealed that repeal could not have revived the 1976 Law which was no longer in force at the time the 1983 law was repealed. This is clearly the position of the law as applicable to the case.
It is therefore my considered view that by the operation of Section 6(1)(a) of the Interpretation Law of Lagos State, the Common Law position as modified by statute has been further modified. Whereas the position in England as stated in section 11(1) of the Interpretation Act of 1889 requires that words be added to the repealing Act to revive the repealed enactment meant to be thereby revived, Section 6 (1)(a) of the Lagos State Law simply says that such a repealed enactment cannot be revived if the enactment was not in force or existing at the time when the repeal takes effect. In other words, whether you add the reviving words or not the repealed enactment remains repealed if it was not in existence or force at the time when the repeal takes effect.
Turning to the other sub-issue as to the legal status of the amendment law of 1985 vis-a-vis the 1976 Law, I agree with the position of the law as stated by Lord Denning M. R. in Macfoy v. U.A.C. (supra) at 160 thus:
“if an act is void, then it is in law a nullity… You cannot put something on nothing and expect it to stay there. It will collapse.”
It is therefore my view that the 1985 law cannot, in law, amend the 1976 law which had ceased to exist by virtue of the repeals. You cannot amend what does not exist.
There is also the issue dealing with the doctrine of covering the field as regards the provisions of the Local Government (Transitional Provisions) Decree No. 15 of 1989 and Edict No. 16 of 1976. It is the contention of learned counsel for the appellant that since the Decree sought to provide a uniform and dominant code for the Local Government administration in the country and by the doctrine of covering the field Edict No. 16 could not possibly be an existing legislation as the Federal enactment had covered the field.
On the other hand, learned counsel for the respondent has argued that the two laws are meant to complement one another and that they are not really inconsistent with one another and can exist side by side; that the doctrine does not apply to the appeal.
I have gone through the cases cited by both counsel on the issue of covering the field and I am of the firm view that the doctrine does not apply to this appeal. I have already resolved the issue as to whether the 1976 law is an existing law. Having held that it is not the sub-issue under consideration, it becomes a purely academic or hypothetical issue which this court, like every other court of law has no jurisdiction to entertain.
It is my considered opinion that the 1976 law must be in existence side by side with Decree No. 15 of 1989 before the issue as to whether or not the Federal enactment has covered the field vis-a-vis the State Law becomes a live issue and therefore relevant for consideration.
That apart, it is important to note that the court cannot, at this stage, decide the merits of the defence intended to be presented by the respondent. We must not lose sight of the fact that what led to this appeal is a ruling as to inter alia whether or not the respondent, who has been in default of appearance, has a defence on the merit to the case of the appellant who had obtained a judgment in default of appearance.
It is however my firm view that Edict No. 16 of 1976 is not an existing law and that the learned trial Judge was wrong in holding that it would ground a defence to the action before him.
On issue No. 2 learned counsel for the appellant has submitted that the learned trial Judge erred in exercising his judicial discretion by setting aside his earlier judgment when the respondent failed to proffer sufficient and acceptable reasons to excuse their non-appearance in court.
That once the learned trial Judge came to the view that the respondent had failed to offer satisfactory evidence for its non-appearance in court, he ought to have refused the application to set aside the judgment. That the Supreme Court had held in Williams v. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145 at 160 that all the five considerations listed therein must be satisfactorily resolved in favour of an application before a judgment obtained in default of appearance can be set aside. That in the present appeal the learned trial Judge had found that the respondent exhibited a non-challant attitude to the outcome of the case, as such he ought not to have granted the application.
Secondly, learned counsel submitted that the judgment obtained was not one based on an application for judgment as erroneously conceived by the trial Judge but one delivered on the merits after oral evidence by the appellant. That the trial Judge was in error when he observed that:
“In the instant application the case had not reached a trial and so, no time is prescribed for the bringing of the application to set aside the judgment. The issue of undue delay in bringing the application will not be a material factor for consideration where the judgment is one obtained not on the merits.”
That the judgment being on the merits the learned trial Judge proceeded on a wrong premises in not considering the merits of the Counsel’s explanation for the delay in bringing the application along with the reasons for seeking a setting aside.
Learned counsel for the respondent, in his reply submitted that the learned trial Judge is right in setting aside the judgment obtained in the absence of the respondent. That what the respondent was obliged to show is that he had a defence on the merits to the action. That even though the trial Judge wrongly held that the reasons given by the respondent for its absence in court were not substantial, the Judge was right in holding that a showing of a triable defence or a defence on the merits by the respondent was sufficient to entitle it to an order setting aside the judgment.
The locus classicus, when one considers the principles of law governing the grant or refusal of an application to set aside a judgment obtained in default of appearance is the Supreme Court decision in the case of N. A. Williams and Ors. v. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145 at 160 where Idigbe, JSC stated the principles as follows:
“I will summarise once again the matters which call for the consideration of the learned trial Judge in these circumstances and they are whether:
(1) the applicant has good reasons for being absent at the hearing;
(2) he has shown that there was good reason for his delay in bringing the application i.e. in other words, whether there was undue delay in bringing application so as to prejudice the party in whose favour the judgment subsists;
(3) the respondent will not be prejudiced or embarrassed if the order for re-hearing was made;
(4) the applicant’s case was manifestly unsupportable; and
(5) the applicant’s conduct throughout the proceedings is deserving of sympathetic consideration.
All these matters ought to be resolved in favour of the applicant before the judgment should be set aside. It is not enough that some of them can be so resolved.”
In the case of Continental Pharmaceuticals v. Scanpharm A/S Denmark (1994) 2 NWLR (Pt. 326) 332 at 341 this court per Sulu-Gambari, JCA (as he then was) dealing with the principles of setting aside of judgment obtained in default of appearance said thus:
“The judgment was granted on the ground of the absence of the party – default of appearance. The only good reason that would enable the learned trial Judge to set aside his previous judgment, would be a detailed explanation, reasonable enough to exculpate the defendant from its absence or default of appearance. The absence of its counsel is not even directly in issue in this case.”
The question is, what does the learned trial Judge find as regards the reasons for the non-appearance of the respondent in court?
At pages 101 – 102 of the record the learned trial Judge found inter alia as follows:
“Even if the filing of the writ of summons and the statement of claim can be excluded, what excuse can one adduce for failure to attend court to answer to the motion for judgment on which was inserted a hearing date. My humble view is that there is none, the conduct of the defendant/applicant showed indifference to the outcome of this case.
I hold that this particular reason for failure to appear in court is not substantial.”
Both counsel agree that the learned trial Judge made this finding but the respondent has cross-appealed against the findings.
The question is the effect of the above finding of the learned trial Judge on the application to set aside the default judgment.
It is my considered view that once the learned trial Judge had come to the conclusion that the respondent has not proffered substantial reasons for failure to appear in court after having been served with a motion on notice for judgment with a date affixed thereon, he was legally bound to apply the principles of law stated in the Williams v. Hope Rising Voluntary Funds Society’s case (supra) and thereby dismissed the application as lacking in merits. In the Williams v. Hope Rising Voluntary Funds Society case (supra) the Supreme Court held that all the considerations must be resolved in favour of the application before it can be granted and the learned trial Judge is bound by that decision.
In any event, it is my view that the attitude of litigants to the courts must always be that of utmost respect and they ought to be diligent and vigilant.
The finding of the trial court clearly shows that the respondent had no satisfactory reasons for staying away from the proceedings leading to the default judgment yet granted the application setting aside the judgment. I am of the considered opinion that the learned trial Judge erred in so holding.
Learned counsel for the respondent has referred the court to page 130 paragraph 13/9/5 of the White Book 1988 which states as follows:
“For the purpose of setting aside a default judgment the defence on the merits which the defendants required to show need only disclose an arguable or triable issue… On the application to set aside a default judgment, the major consideration is whether the defendant has disclosed a defence on the merits and this transcends any reasons given by him for the delay in making the application, even if the explanation given by him is false…”
It is my considered view that the above quoted passage is not binding on this court or the lower court in view of the Supreme Court decision on the matter in the Williams v. Hope Rising Voluntary Funds Society case (supra). The passage from the White Book (supra) is completely inconsistent with the said decision of the Supreme Court.
There is the sub-issue as to whether the judgment which was set aside was a default Judgment or on the merits. This was raised by the appellant but not dealt with by the respondent in the brief.
I only need to remind the learned counsel for the appellant that throughout the brief learned counsel repeatedly referred to the judgment as being that in default of appearance. Does the fact that the appellant had to give evidence before judgment was delivered change the legal status of the judgment from being that in default of appearance to that on merit? I don’t think so. It is now trite law that once a plaintiff seeks a declaratory relief, he has to give evidence before such a relief can be granted despite any admission in the pleadings or by default of pleadings.
This does not mean that the judgment so delivered in default of appearance but after evidence by the plaintiff has automatically become a judgment on the merits.
If learned counsel for the appellant were really serious about this submission he should have raised the issue at the lower court as to the competence of the application to set aside the judgment in place of an appeal which he did not neither has he advanced such argument before us.
On issue No. 3, learned counsel for the appellant submitted that section 168 of Edict No. 16 of 1976 offends against the provisions of section 6, 33 and 39 of the 1979 Constitution in so far as it seeks to impose an arbitrary restriction on access to the courts. That section 6 of the Constitution creates access to the courts without preconditions.
Secondly, that the section is discriminatory in its terms as it extends to a party to a dispute a privilege which is denied to the other and thereby contrary to the principle of equality before the law, counsel further submitted. Funny enough learned counsel stated as follows:
“As support for this submission reliance will be placed on the decision in Gani Fawehinmi v. Jubril Aminu & 4 Ors. (unreported) suit No. FHC/L/CS/54/92 where Belgore, C.J refused to give effect to a provision stipulating for pre-action notice in the Nigerian National Petroleum Corporation Decree, 1977.”
Learned counsel then urged the court to hold that section 168 of Edict No.16 of 1976 is not in conformity with the provisions of the Constitution.
On the other hand, learned counsel for the respondent submitted that the submission of his learned friend is misconceived in that it is what could have been addressed to the High Court when the matter is being heard on the merits.
In the alternative, learned counsel submitted that the sections under consideration are not inconsistent with the provisions of sections 6, 33 and 39 of the 1979 Constitution.
Learned counsel cited and relied on Atolagbe v. Awuni (1997) 9 NWLR (Pt. 522) 536 at 575; Abakaliki Local Government Council v. Abakaliki Rice Mills Owners (1990) 6 NWLR (Pt. 155) 182 at 189 and 190; Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) 546 at 584.
To begin with learned counsel for the appellant did not make available to this court a certified true copy of the judgment of the learned Chief Judge of the Federal High Court in the said suit No. FHC/L/CS/54/92 nor did he tell the court when it was decided. I have therefore not had the benefit of the reasoning in that judgment.
Be that as it may, I hope that learned counsel for the appellant who is now, by the grace of God a Senior Advocate of Nigeria, still remembers the hierarchy of courts of records in the land and the principles of stare decisis.
I had earlier in this judgment observed that some of the issues for determination in this appeal have to do with the merits of the defence intended to be put up by the respondent at the trial. The appellant wants this court, the Court of Appeal, to decide on the defence which is at this stage proposed. That is obviously not the duty of this court.
Granted that I am wrong, which I very much doubt, can it be said that Sections 167 and 168 of Edict No. 16 of 1976 are not in conformity with Section 6, 33 and 39 of the 1979 Constitution. Learned counsel for the appellant has cited the case of Bendel State v. Obayuwana (1982) 3 NCLR (Vol. 3) 206 at 210 where Omo Eboh, JCA stated thus:
“The Constitution has not prescribed any condition precedent to be complied with before a citizen institutes an action in court.”
Now Section 6(1) of the 1979 Constitution provides thus:
“6(1) The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.”
While Section 6(6)(b) of the said Constitution provides as follows:
“6(6) The judicial powers vested in accordance with the foregoing provisions of this section…
(b) shall extend to all matters between persons, or between government or authority and any person in Nigeria and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of person.”
From the above provisions, it is my view that the submission of learned counsel for the appellant that “section 6 of the Constitution creates access to the courts without preconditions” is not correct as section 6(6)(b) restricts the right of access to the courts on grounds of locus standi. In Senator Adesanya v. President of Nigeria (1981) 2 NCLR 358 at 361 Bello, JSC as he then was stated thus:
“It seems to me that upon the construction of the sub-section 6(6)(b) it is only when the civil rights and obligations of the person, who invokes the jurisdiction of the court, are in issue for determination that the judicial powers of the courts may be invoked. In other words, standing will only be accorded to a plaintiff who shows that his civil rights and obligations have been or are in danger of being violated or adversely affected by the act complained of.”
In any event, it is my considered view that pre-action notices do not take away the constitutional right of access to the courts from the litigant. It only provides the procedure to be followed when you desire to seek redress in the courts. It does not, in any way, take away the right of access to the court in appropriate cases. I also do not see anything discriminatory about the sections complained of. Similar provisions have been interpreted and enforced by the courts of the land including the apex court in appropriate cases.
On the 4th and final issue learned counsel for appellant has submitted that the case under appeal is essentially one founded on a breach of a contract of employment and therefore it is not caught by the provisions of section 167 and 168 of Edict No. 16 of 1976 and by the authority of the Supreme Court in NPA v. Construzioni Generali FCS & Anor. (1974) NSCC 622 pre-action notice requirement in statutes do not apply to contracts.
Learned counsel for the respondent has submitted that the contracts envisaged in the NPA’s case, supra is not an employment contract at all, and as such the case does not apply, learned counsel further submitted.
I am of the view that it is not proper for me to honour the invitation so generously extended to me to pronounce on the issue of applicability of section 168 of Edict No. 16 of 1976 to contract claims. To honour that invitation is to decide on the merits of the defence intended to be presented at the lower court if the appeal fails and or the cross-appeal succeeds. It will not be proper in law to do so, so I hereby decline the invitation on the ground that this court has no jurisdiction in the matter.
The respondent has cross-appealed against the said ruling of Ope-Agbe, J. of 26th May, 1995, by leave of this court and has filed a cross-appellant’s brief, to which the appellant filed a reply.
The cross-appellant formulated two issues for determination viz:
“1(a) Was the learned trial Judge not obliged to consider all the defences raised in the defendant/respondent’s application in determining whether or not the applicant raised an arguable defence to the action?
(b) If the answer is in the affirmative, were the defences he did not consider not sufficiently arguable to justify the setting aside of the judgment?
2. Was the learned trial Judge right in the circumstance in holding that the reasons adduced by the respondent for its absence were not substantial?
On issue No. 1 learned counsel for the cross-appellant submitted that apart from the issue of non-compliance with the provision of sections 167 and 168 of Edict No. 16 of 1976 the respondent also raised other triable defences in the statement of defence which were referred to in argument of counsel in the court below but which the trial Judge failed to consider in the ruling on appeal. That one of the defences is that the appellant was a junior staff subject to be disciplined by the Junior Staff Management Committee and that the said committee properly considered the appellant’s case and took a decision thereon. That the Local Government Service Board Proceedings Law relied upon is not applicable to the appellant’s case. That this clearly shows that the cross-appellant has a triable defence, sufficient to justify the setting aside of the judgment.
In this reply, learned counsel for the appellant submitted that the issue being canvassed as a defence was already taken care of by the learned trial Judge in the default judgment so the cross-appellant’s argument in that respect is misconceived.
It must be pointed out that a default judgment is one that is given after the invocation of the coercive powers the court due to the default of the defendant to comply with the rules of court etc. It is not on merit. That being the case it can be set aside upon proper application and sufficient reasons given to the satisfaction of the court. The important thing there is that the other party is not heard.
It follows therefore that whether the trial Judge did consider the applicable law or procedure in coming to his decision in the default judgment, he did not hear the cross-appellant on the matter.
I do not agree with the position of learned counsel for the appellant that because the learned trial Judge had already decided on the issue of procedure to be followed in terminating the appointment of the appellant in the default judgment so the cross-appellant cannot raise that issue as a defence and be heard thereon.
I don’t believe in technical justice. I therefore agree with learned counsel for the cross-appellant that apart from the issue of sections 167 and 168 of Edict No. 16 of 1976 the cross-appellant also raised other triable defences worthy of consideration by the learned trial Judge and which he failed to do. That the issue of the proper procedure for the termination of the appointment of the appellant is a triable defence on which in an appropriate case, the cross-appellant ought to be heard.
On the second issue in the cross-appeal, learned counsel for the cross-appellant submitted that the learned trial Judge was in error in finding that the cross-appellant showed indifference to the suit in view of the uncontradicted affidavit evidence of the cross-appellant. That the learned trial Judge ought to have held that the failure to appear in court was due to inadvertence rather than indifference.
He urged the court to allow the cross-appeal.
In his reply, learned counsel for the appellant submitted that the learned trial Judge was right in finding that the cross-appellant has not given substantial reasons why they failed to attend court after being served with a motion for judgment with a date inserted thereon.
The law is well settled that where a judgment is attacked on the ground of being against the weight of evidence or where the finding or non-finding of facts is questioned, as in this cross-appeal, the Court of Appeal in considering the judgment on appeal will seek to know the following:
“(i) The evidence before the court;
(ii) Whether it accepted or rejected any evidence upon the correct perception;
(iii) whether it correctly approached the assessment of the value on it;
(iv) whether it appreciated upon the preponderance of evidence which side the scale weighed having regard to the burden of proof:- see Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt. 70) 325 at 339. MISR (Nig.) Ltd. v. Ibrahim (1975) 5 SC 55 at 62; Egonu v. Egonu (1978) 11 – 12 SC 111 at 129 etc. etc.
The question then is what are the relevant facts in this cross-appeal? These include the fact that after a judgment in default of appearance was entered against the cross-appellant who neither entered an appearance nor filed a defence to the action despite service of processes on it, it filed an application at the High Court seeking to set aside the said judgment and explained its previous non-appearance in court by saying that it had confused the processes served in the case with those of another case i.e. suit No. LD/665/91 which was withdrawn and subsequently struck out. That though the motion for judgment was duly served at the office of the Secretary to the Council it was not brought to the knowledge of the legal department.
In his ruling on the application to set aside, the learned trial Judge at pages 101 to 102 of the record found as follows:
“Even if the filing away of the writ of summons and statement of claim could be excluded, what excuse can one adduce for failure to attend court to answer to the motion for judgment on which is inserted a hearing date. My humble view is that there is none. The conducts of the defendant/appellant show, indifference to the outcome of this case. I hold that this particular reason for failure to appear in court is not substantial” italics mine.
That is the clear finding of facts by the learned trial Judge on the Issue.
It is well settled law that findings of fact and ascription of probative value to evidence are primarily that of the trial court. An appellate court will only interfere where there are special circumstances justifying such or where the findings are unsound see Omoregie v. Idugiemwanye (1985) NWLR (Pt. 5) 41 at 47.
Where a trial court has failed to properly evaluate the evidence before it as a result of which it reached a decision which is perverse the Court of Appeal has a duty by way of rehearing, to evaluate as if it were a trial court, the evidence that has been adduced – see Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410.
In the present cross-appeal our attention has not been drawn to any special circumstance that will necessitate this court’s interference with the findings of fact by the lower court as quoted above neither is the cross-appellant saying that the finding is perverse having regards to the evidence adduced. It seems to me that the cross-appellant wants us to substitute our own finding for the trial court’s simply because it would aid his cross-appeal.
I have carefully gone through the record of proceedings and the ruling of the learned trial Judge and I am of the firm view that the learned trial Judge’s finding is very much supported by the facts deposed to in the affidavit of the cross-appellant. All that the cross-appellant should have done was to get its official to just put up an appearance in the court on the date mentioned on the motion for judgment so as to know what was actually happening but failed to do so. This is after all the other processes had been served on the cross-appellant, who said it mistook the suit for an earlier one which was struck out. If what the cross-appellant did after the service of the motion for judgment is not indifference I wonder what it is. The cross-appellant obviously had a non-challant attitude towards the matter and the trial Judge is right on the point.
On the whole it is my considered view that the main appeal has merits and is allowed in part.
Even though the issue No. 1 of the cross-appeal is resolved in favour of the cross-appellant, it is not sufficient to allow the cross-appeal in view of the fact that issue No. 2 is resolved against the cross-appellant and upon the authority of Williams v. Hope Rising Voluntary Funds Society (supra) the cross-appeal fails in that the cross appellant did not proffer satisfactory reasons why it failed to appear in court when the matter was heard as required by law. The cross appeal therefore fails.
It is hereby ordered that the ruling of Ope-Agbe, J. in suit No. LD/3144/92 delivered on 26/5/95 setting aside the judgment in that suit in default of appearance delivered on 18/6/93 be and is hereby set aside.
I make no order as to cost as parties are to bear their costs.
Appeal allowed.
Other Citations: (2000)LCN/0868(CA)