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: