Katsina Local Authority & Anor. V. Barmo Makudawa (1971)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C. 

This is a second appeal in a matter which originated in the Upper Area Court, Katsina, in the North-Central State. In that court the present respondent, Alhaji Barmo Makudawa, as plaintiff sued the present respondents, the Katsina Local Authority (“the local authority”) and one Sarkin Shanu for the sum of 2,152pounds.10s.0d being the value of 105 cows allegedly sold by him to the local authority and accepted on behalf of the authority by the second defendant, Sarkin Shanu. At the trial of the action evidence was taken by the court from the parties and witnesses, and in a reserved judgment the Upper Area Court found in effect that the plaintiff did sell the cows to the local authority as claimed, and observed as follows:

“In view of the reasons I have stated I accept the complainant’s claim against the Katsina Local Authority because he Alhaji Barmo has proved that the authority owes him 115 cattle valued at 2,152pounds.10s.0d,that is 20pounds.10s.0d per head. The plaintiff proved that Sarkin Shanu was employed by the local authority as a cattle buyer, i.e., he was representing the local authority when he received and brought his cattle in March 1968. The evidence shows that Sarkin Shanu has been holding this post for 30 years, and naturally when the local authority or the government buys goods from somebody and asks the person to be patient until such a time, the person would not refuse because he would trust the authority would pay him in the long run.”

The court then gave judgment against the local authority in the sum of ‘2,152pounds.10s.0d and costs.

Aggrieved by this decision the local authority appealed to the High Court, Kaduna, complaining that the whole trial was a nullity in that the provisions of s. 116(2) of the Local Authority Law (Cap.77) were not complied with, that the action was statute barred by virtue of s. 116(1) of the Local Authority Law, that judgment should not have been entered against the local authority alone since there were two defendants before the Upper Area Court, that the local authority was not duly represented at the hearing as they should have been by virtue of s.118 of the Local Authority Law, and that in any case the judgment was not supported by the weight of evidence. The appeal was heard by Reed, C.J. and two other Judges. At the hearing of the appeal the ground of appeal complaining that the local authority was not duly represented was withdrawn, but the other grounds of appeal were extensively argued. The High Court carefully considered the arguments put forward for both the plaintiff and the defendant and eventually dismissed the appeal.

The defendant local authority has now appealed to this court against that judgment pursuant to leave to do so granted by the High Court. Before us the arguments for the local authority, most ably put forward by the learned Attorney-General, North- Central State, range around the provisions of s.116 of the Local Authority Law (Cap.77), and can be summarised thus:-

(a) That the action was not commenced within six months of the act, neglect or default of the local authority, contrary to the provisions of s.116(1) of the Local Authority Law:

(b) That no notice in accordance with the provisions of s.116(2) of the Local Authority Law was served on the local authority at least one month before the commencement of the proceedings; and

(c) That in any case even if the above points were not raised at the trial they could be raised in the High Court, or this court, in the course of the appeal.

The points raised were obviously of far-reaching significance because they pose, perhaps for the first time, the question of the extent to which both substantive and procedural rules created particularly for use in superior courts of record, can be applied in courts where procedures are more simple and pleadings are not filed. Section 116 of the Local Authority Law (Cap.77) reads as follows:-

1. When any suit is commenced against any local authority for any act done in pursuance, or execution, or intended execution of any Act or Law, or of any public duties or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, such suit shall not lie or be instituted in any court unless it is commenced within six months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within six months next after the ceasing thereof: Provided that if the suit be at the instance of any person for cause arising while such person was a convicted prisoner, it may be commenced within three months after the discharge of that person from prison.
2. No suit shall be commenced against a local authority until one month at least after written notice of intention to commence the same shall have been served upon the local authority by the intending plaintiff or his agent. Such notice shall state the cause of action, the name and place of abode of the intending plaintiff and the relief which he claims.”

The argument concerning s.116(1) is that the failure to comply with it makes the entire proceedings a nullity. The learned Attorney-General also submitted that a party who had not raised the point at the trial could do so on appeal for the first time. In the High Court it is evident that this point was considered, for in the course of its judgment the High Court observed as follows:

“We do not think it necessary to decide whether the suit now before us is one of the suits included in the sub- section. It is well established by authority that statutes of limitation take away the remedy but do not extinguish the right of action. The appellants should have raised this defence at the trial and as they did not do so they cannot raise it in this court on appeal.”

Then the High Court, without determining whether s. 116(1) of the Local Authority Law was in any case applicable, decided that the sub-section creates a statutory bar against the remedy but not against the right of action. We are in no doubt that the course taken by the High Court was mistaken. We think a decision on the applicability of the sub-section is fundamental to the whole decision and that the High Court should have expressly dealt with that point first. We have already set out the provisions of s.116(1). Undoubtedly this sub-section applies only where the suit in question is (i) in respect of any act done in pursuance or execution or intended execution of any Act or Law; or (ii) in pursuance of any public duties or authority; or (iii) in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority. There are those three categories and it is obvious that unless the suit be in respect of a matter falling within one or the other of the three categories the provisions of s.116(1) would not apply. The learned Attorney- General was unable to contend that the act of buying cattle, as alleged in the present proceedings, does fall within any of the categories. He attempted to submit that s.116(1) is dependent on s.116(2) and that where one applies the other would do as well, but he abandoned this line of argument when it was pointed out to him that whereas sub-so(1) refers to “any suit” in the categories postulated, subs-(2) prescribes that “no suit,” i.e., no suit of any kind whatsoever, should be commenced in the circumstances therein described. Eventually the learned Attorney-General conceded that there was nothing in the record of appeal to show that the cattle were purchased for or by the local authority in virtue of any Act or Law or duty or authority.

The section is no more than a re-wording of some of the provisions of s. 2 of the Public Officers (Protection) Law (cap. 111), the sole aim of which is the protection of public officers in the execution of their public duties, so that if a public officer is made a party in proceedings involving another person who is not a public officer such other person would not be entitled to the protection of the statute. In Ademola II v. Thomas (12 WAC.A. 81 at 89), the West African Court of Appeal made the following observations:

“It was submitted that in such case the action must be dismissed as against the other three appellants, it being argued that the first appellant was a party necessary to the proceedings and if he could not lawfully be joined then the proceedings against the others must fail. We are unable to find that this submission is well founded. It would be open to the first appellant if he desired to be joined as a party to waive the protection afforded him by the statute. If he did not choose to do so he could not be heard to complain that he was not made a party thereto, nor could his absence prejudice the trial of the issue in regard to the other appellants.”

The passage is instructive and throws considerable light upon the meaning and effect of this protective provision and, as stated before, the provision ensures complete protection to a public functionary acting in the course of his public duty or authority even where such a person is accused along with a non-government official. In such circumstances it is difficult to contend that the right of action as opposed to the remedy was extinguished by the statutory provision. In any case, as the learned Attorney-General has conceded his inability to press his arguments on s.116(1), we do not consider it necessary to say much more about the implications of that sub-section: but a short observation is clearly pertinent.

We have pointed out that s.116(1) is a provision the aim of which is to protect local authorities by restricting the period during which they may be answerable for their deeds or misdeeds. We also observe that in the High Court the arguments consistently referred to the sub-section as a statute of limitation. It is of course permissible to refer to s.116(1) generally as a statute of limitation since it does limit the time within which an action can be commenced. But statutes of limitation vary enormously in their phraseology and content, and it must not be overlooked that there are some such statutes of limitation that expressly bar not only the remedy but also the right of action: see s.30 of the Moneylenders Law (cap. 74): Mustapha Alli v. Allen (1966 N.M.L.R. at 135); Dawkins v. Lord Penrhyn (1877) 6 Ch.D 318; and Cf. 24 Halsbury’s Laws of England 3rd Ed. para. 369 at 205.

45 Be that as it may, we are firmly of the view that the present proceedings do not come within the types of action described in s.116(1) of the Local Authority Law, and as such the competency of the proceedings cannot be challenged on that score. If that is so, as indeed we think it is, then the ground of appeal complaining that the present proceedings contravened the provisions of s.116(1) is misconceived, and it fails.

With respect to s.116(2) it was submitted by the learned Attorney-General that the service of the notice required by the sub-section is a pre-condition of jurisdiction and that unless the sub-section is complied with the entire proceedings are a nullity. The learned Attorney-General referred us to the cases of Bornu N.A. v. Audu Biu Appeal No. NEM/48A/68 of 3rd Sept. 1969. (High Court, Maiduguri) and Cheko v. Kano N.A. Suit No. K/49/66. In the former case, the High Court held that the provisions of s. 116(2) are mandatory and that the section might be raised even if it be for the first time on appeal. The court also held in that appeal that failure to comply with s. 116(2) does render the entire proceedings a nullity. In the latter case the argument concerned the entitlement of a party to rely upon a notice already served (and used) in a former action for the institution of a second action after the first action was non-suited. We make no pronouncement on the validity of these two decisions. Although we can consider them yet this court must approach the matter independently of authorities which are not binding on it.

We are of course in agreement with the High Court in Bornu N.A. v. Audu Biu (supra) that the provisions of s. 116(2) are mandatory, but we do not consider that this characteristic makes the sub-section incapable of being waived. An irregularity in the exercise of jurisdiction should not be confused with a total lack of jurisdiction: see observations generally on this point in Timitimi v. Amabebe (14 WACA at 377).

It has long been settled in the High Court, or indeed in any court where pleadings are filed, that where it is intended to rely on a condition precedent then that condition precedent must be pleaded: see 1 Halsbury’s Laws of England 3rd ed., para. 28 at 18-19; and Yassin v. Barclays Bank D.C.D. (968) NMLR 380. It is not open to argument that if such condition precedent is not so pleaded 20 the defendant would by the simple rules of pleadings be taken to have waived whatever rights he possesses in the subject-matter: see Ngelegla v. Nongowa Tribal Authority (13) (14 WAC.A. at 327); Akwei v. Akwei (1943) 9 WACA 325 at p.327 and Dismore v. Milton (1938 3 All E.R. 763-764; 159 L.T. at 382-383, per Greer, L.J.). In the Upper Area Court where the present proceedings originated, pleadings are not filed or indeed required, and the crucial question is whether in such circumstances a defendant can be excused from raising the point in that court whilst at the same time preserving his right to raise it on appeal.

We find no difficulty whatsoever in holding that a defendant cannot do this. A condition precedent must be expressly or at the least impliedly raised at the trial so that the other party may have the opportunity of meeting the point. The learned Attorney-General has argued forcefully that compliance with s. 116(2) is a precondition which is fundamental to jurisdiction and as such a non-compliance with the sub-section will have the effect of nullifying the whole proceedings. For these submissions he relied upon the following authorities:

Lands Commissioner v. Arah (1954) 14 WACA 510, in which it was held that s.17 of the Crown Lands Ordinance (cap. 45) was a condition precedent to the commencement of the type of action in those proceedings and that failure to comply with that section nullified the entire proceedings. In that case the following passage occurred in the judgment of the West African Court of Appeal (14 WACA at 511):

“Mr. Burton, for the appellant has argued that the defendant should have pleaded specifically the non-performance of the condition precedent and that it is too late to raise the matter on appeal. Since the point raised goes to the existence of the action, it can, in my opinion, be taken for the first time in this Court. The defendant’s failure to plead it earlier has led to costs being incurred unnecessarily but that is a matter which can be dealt with appropriately.”

Moore v. Tayee (1933) 2 WACA 43, where the Privy Council held that where conditions of appeal were not fulfilled or performed according to the law, there was no appeal properly before the Provincial Commissioner, Gold Coast (now Ghana).

General Manager, Nigerian Railway v. VAC. (1943) 9 WACA 111, which it is to be pointed out at this stage, is hardly of any relevance to the points in issue. Obimonure v. Erinosho (1966) 1 All NLR 250 in which it was held that a failure to serve a hearing notice on one of the parties to an appeal was a 5 fundamental vice entitling that party to have the proceedings taken in his absence set aside as it meant that a condition precedent to the exercise of jurisdiction had not been fulfilled.

Awoniyi v. Eletu (1963) L.L.R. where it was held that a wrong statutory notice to quit served by the landlord vitiated the proceedings in which it was sought to recover possession of premises.

We are clearly of the view that s. 116(2) of the Local Authority Law prescribes a condition precedent to the competence of any action commenced against a local authority and that compliance with the sub-section is a pre-condition of such competence.

The sub-section requires such notice as is therein prescribed to be served on the local authority and stipulates that at least one month shall expire before the suit can be legally commenced. It follows therefore, in our view, that where it is established that no such notice was served or that the sub-section is not otherwise complied with, any suit commenced in contravention of the provisions of the subsection is wrongly commenced and should not be entertained by any court. The important matter on this appeal however is whether the point could be properly raised on appeal for the first time when it was not raised at the trial either expressly or impliedly. We think not. We think also that to hold otherwise would introduce a serious element of confusion into legal procedures and create a situation which will defeat the very object of the sub-section. The reasons for this are numerous. It is easy to see that even a plaintiff who has failed in an action against a local authority may urge the sub-section in that way in order to get over an order of dismissal of his case and so be enabled to commence fresh proceedings where he is not caught by the provisions of Sub-S.(1) of S.116. But that is not the only reason. The notice postulated by the sub-section is a written notice and where the point is raised at the trial the plaintiff is still capable of putting such a notice, or a copy thereof, in evidence where he has served it. If the point is being raised for first time on appeal, except in the restricted circumstances where fresh evidence is allowed on appeal, the opportunity of putting such a notice or a copy thereof in evidence is lacking, and it is not allowed by our law to prove the contents of a written document by parol evidence.

This reasoning therefore leads to another and indeed a more significant aspect of the same matter. So far we have considered the whole matter as if the existence or fact of the notice, as distinct from the contents of such notice, must be viewed from the same standpoint. Whether a written notice was served or not is a matter of fact of which oral evidence may, and indeed can, be given and if accepted such evidence is conclusive. Indeed, the proof of such a fact can be dispensed with by the formal agreement of counsel at the bar; but the contents of a written notice can only be proved by the production of such a notice or an admissible copy thereof. In the cases referred to by the learned Attorney-General the points raised for the first time on appeal were concerned with the contents of the statutory notices concerned in the several cases. In other words these notices had been challenged on the ground that they were insufficient. The statutory notices themselves were already in evidence and where the sufficiency of written documents already in evidence is challenged we do not ourselves see why such a complaint may not be made at any time in the course of the litigation and indeed for the first time on appeal. The distinction between a challenge to the existence or fact of a document and a complaint about the sufficiency or otherwise of that document was clearly spotlighted by the Privy Council in the case of Abinabina Stool v. Enyimadu (1953) 12 WACA 171 at 173, where Lord Cohen, delivering the judgment of the Board, observed as follows [1953] A.C. at 215.

“Neither of these points was taken in the West African courts. They could not, of course, have been taken before Jackson, J. since they emerged only from his judgment. They could have been taken before the West African Court of Appeal, but their Lordships consider that as they involve substantial points of law, substantive or procedural, and it is plain that no further evidence could have been adduced which would affect the decision of them, the appellants should be allowed to raise them before this Board.”

As stated before, the existence or fact of the notice is a matter which must rest on oral evidence or indeed agreement of the parties, but the sufficiency of it when once it is in evidence is a matter which needs no further evidence and can be taken at any stage of the litigation.

In the case in hand in the Upper Area Court, the plaintiff was not asked whether he had served any notice under s.116(2) of the Local Authority Law, and it is easy to see that the sub-section was not within the contemplation of the parties throughout the trial in that court. A court of trial is entitled to presume that the preliminaries to the action before it had all been perfected, the more so as neither of the parties breathed a word of that sub-section throughout the whole trial.

We are without any doubt of the view that compliance with s.116(2) in so far as the question is whether a notice had been served or not should be raised at the trial and that that question cannot be raised later. We think also that when a notice, or an admissible copy of such a notice, is produced as having been issued or given in compliance with the sub-section, it is then open to the opposing party at any stage of the proceedings, first instance or appellate, to question the sufficiency of such notice, and that this can then be decided as an issue of law by any such tribunal before which it is raised: see for instance the observations of this court in Wada Kusada v. Sokoto N.A. SC.131/68 of 13th Dec. 1968. Evidently what was sought to be raised for the first time before the High Court was the fact or existence of such a notice as is envisaged by s. 116(2) of the Local Authority Law. If the matter had originated in the High Court, where pleadings are filed, the answer is concluded by the authoritative statement of the law in 1 Halsbury’s Laws of Eng land, 3rd ed., para. 28, at 19, to the effect that a defendant who intends to rely on the absence of a notice must raise the point in his defence; see also on this point Yaskey v. President, Councillors & Citizens of Freetown (1931) 1 WACA 141.

To relax the duty of the defendant in the subordinate courts, where pleadings are not filed, is to misconceive the total purpose of such courts and what is worse still to seek to establish a line of decisions which run counter to established principles of pleadings (where they apply) and procedure. We appreciate that by holding as we do it may work hardship to a local authority, but equally we can conceive of situations the other way where to hold otherwise would work hardship to an unrepresented litigant as plaintiff. If the technical requirements of s.116(2) had been brought speedily to the attention of such a plaintiff, he might well have been able to discontinue and commence again having served the required notice and still be within time if his action fell within the provisions of s.116(1), but that would be most unlikely to be the position if the objection could be and was only raised on appeal. The purpose after all of s.116(2) is solely to give the local authority sufficient notice of claim against it so that it is not taken by surprise but has adequate time to prepare to deal with the matter in its defence. Its purpose is not to put hazards in the way of bringing litigation against it, any more than the requirement of s.116(1) is to formulate in technical terms the claim, but to give notice of the facts relied on for the claim though not to establish in his notice a good cause of action: see Wada Kusada v. Sokoto N.A. SC.131/68 of 13th December, 1968.

Be that as it may, however, it may be that it is desirable when legal representation is not permitted in a court and where legal advice is difficult to obtain, certainly within a reasonable time, by parties before such a court, that there should be special provision as to when objection to non-compliance with the provisions of s.116(2), or indeed of s.116(1), may be raised, but that is a matter to which having drawn attention we must leave to the respective authorities and to the law officers to consider. Here we can but conclude that the High Court, Kaduna, on appeal, was right when it decided that the Katsina Local Authority could not raise before it the question of the absence of a notice under s.116(2) for the first time when they did not raise that issue in the Upper Area Court.

In the event, all the grounds of appeal argued for the local authority fail and the appeal accordingly fails. It is therefore dismissed.

Appeal dismissed.

---

SC.108/1970