Chairman Moro Local Government & Ors V. Adelodun Lawal & Ors (2007)
LawGlobal-Hub Lead Judgment Report
JUMMAI HANNATU SANKEY, J.C.A.
This appeal is predicated on the Judgment of Honourable Justice J. F. Gbadeyan of the Kwara State High Court, Ilorin delivered on 30th June, 2005.
The Respondents, as Plaintiffs, filed a suit under the “Undefended List” Procedure against the Defendants, now Appellants, on the 28th April, 2005. Therein they claimed the total sum of N25, 767,174.81k plus 10% of the total sum until the Judgment sum is finally liquidated. The principal sum claimed was said to represent the salaries of the Respondents from June, 1999 to November, 2000, May 2001 to December 2001 and January 2002 to May 2002. Approved furniture allowances and severance gratuities were also included in this claim.
The Writ of Summons containing the Plaintiffs’ claim was supported by an affidavit and exhibits. Upon being served the summons, the Appellants filed a Notice of intention to defend the suit accompanied by an affidavit and supported by exhibits.
The trial Court heard the matter on the Undefended List and took the arguments from both learned Counsel to the Appellants (then defendants) and to the Respondents (then Plaintiffs). In his ruling, delivered on 30th, June, 2005, the learned trial Judge, Gbadeyan, J. stated in effect that no defence on the merit had been disclosed to warrant a transfer of the suit to the General Cause List for hearing. In his own words, he stated this at Page 71 of the printed record thus:
“The authorities are clearly in support of the defendant making credible allegations amounting to a defence on the merit to cause or matter to be transferred to the general cause list from the undefended cause list. It is never granted upon the making of a wild allegation or mere barren assertions or half-hearted defence. See Muobike V. Nwigwe Supra at 635.”
He thereupon proceeded to enter Judgment for the Respondents/Plaintiffs as per the Writ of Summons:
Dissatisfied with this Judgment, the Appellants filed a Notice of Appeal containing two Grounds of appeal and Additional Grounds of Appeal consisting of five Grounds. The Grounds, without their particulars, complain thus:
Original Grounds.
- The Judgment is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.
- The Learned trial Judge erred in law and wrongly exercised his jurisdiction in entertaining the Respondent’s case which was/is clearly statute barred.
Additional Grounds.
- The Learned trial Judge erred in law in giving judgment to the Respondents under the Undefended List when the affidavit in support of the Appellant’s Notice of Intention to defend raised triable issues amounting to a defence on the merit.
- The Learned trial Judge erred in law and wrongly placed on the Appellants a much higher burden than required by Order 23 Rule 3 of the Kwara State High Court Civil Procedure Rules 1989 when he held that:
“There are several allegations made by the defence.
They are mere allegations.”
- The Learned trial Judge erred in law when he failed to pronounce on the issue of (sic) agricultural loan taken by the Respondents from the Appellant and later written off which issue was duly canvassed before him.
- The Learned trial Judge erred in law and on the facts when he held that:
“There is no iota of documentary evidence that a total of the loan and overdraft facilities of N27 Million applied for were actually approved and granted.”
- The Learned trial Judge erred and misdirected himself when he held that there is no evidence that the Schedule of payment was honoured.
In pursuance of the Rules of this Court, both parties filed their Briefs of Argument. The Appellant’s Brief of Argument dated 15th August, 2005 was filed on 15th September, 2005. On receipt of the Respondent’s Brief of argument, they filed a Reply Brief dated 7th November, 2005 and filed on 8th November, 2005. Both Briefs of argument were fully adopted and relied upon by Mr. Obi Okwusogu, learned Counsel for the Appellants on the 7th November, 2006. In addition, learned Counsel filed a list of additional authorities which contains four authorities. These he again relied upon, particularly Nos 1, 3 and 4 on the list. He therefore urged the Court to allow the appeal.
On his own part, Alhaji Aliyu Salman, SAN relied on the Respondent’s brief which was deemed filed out of time with the leave of Court on the 17th October, 2005. In adopting the said brief as his arguments in this appeal, the learned Senior Advocate made the following oral submissions. Replying especially to Issue NO.2 in the Appellants’ brief, he referred to paragraphs 5.02, 5.03, 5.06 and 5.08 at pages 4 – 5 of the Respondent’s Brief, and contended that the cases cited by the Appellants which relied upon S. 178 of the Local Government Law did not take into account the fact that S. 178 of the said Law had been repealed.
He submitted that this Law had since been repealed by S.18 of the Limitation Law of Kwara State Cap. 89. He pointed out that the Respondents took out an action at the High Court 35 months’ after they had been deprived of their salaries and allowances when they left the office. Since the Limitation Law provides for 60 months, they were within time. Consequently, he prayed that the appeal be dismissed.
From these Grounds of Appeal, the Appellants in their brief of argument distilled the following issues for determination by this court:
“i Whether the Respondent’s action which was filed on 28th April, 2005, that is, 35 months after they had left the service of the appellants was/is not statute barred – Ground 2 of the Original Grounds of Appeal.
ii Whether or not the trial court was right in holding that the allegations made by the defence did not amount to a defence on the merit and in entering Judgment for the Respondents – Original Ground 1 and additional Grounds 1, 2, 4 and 5.
iii Whether or not the trial court has a duty to pronounce on all issues properly raised before it and whether the trial court’s failure to pronounce on the issue of Agricultural loan duly raised by the defence did not amount to a miscarriage of justice.”
The Respondents in turn formulated the following three (3) issues for our determination in this Appeal:
“i. Whether the Appellants who did not at the trial of this suit raise the plea of statute of Limitation can raise same in this appeal.
ii. Whether the Respondents’ suit was statute barred.
iii. Whether the learned Judge of the trial High court was right in entering Judgment in favour of the Respondent on the Undefended List regard being had to the affidavit evidence and materials placed before him more particularly Exhibit ‘E’ in support of the affidavit in support of the Writ.”
I adopt the issues formulated by the Appellants in their Brief of Argument since they adequately cover all the Grounds of Appeal. In addition however, I will take the preliminary issue raised by the Respondents’ Counsel and formulated as Issue One in the Respondents’ brief. This issue must of necessity be taken first as it borders on the competence of the suit before the Court and therefore touches on jurisdiction.
RESPONDENTS’ ISSUE ONE
The preliminary issue raised by the Respondents as their Issue One is:
“Whether the Appellants who did not at the trial of this suit raise the plea of Statute of Limitation can raise the same in this appeal.”
The Learned Senior Advocate for the Respondents in their brief submitted that the Appellants never raised the issue of the applicability of the provision of S. 178 of the Local Government Law, Laws of Kwara State Cap. 92 at the Court below, neither did the Appellants’ affidavit in support of their Notice of Intention to defend raise the issue that the action is statute barred. He contended further that the Appellants’ arguments in the Court below did not touch on the issue of the applicability of the Statute of Limitation to enable the Appellants to raise it as of right as they have purported to do in their Brief. This therefore renders the issue of the applicability of the Statute of Limitation incompetent. He submitted that fresh points of law or issues which were not canvassed in the Court below cannot be raised for the first time in the Court of Appeal except with the leave of the Court. He relied on Atoyebi v. Government of Oyo State (1994) 5 S.C.N.J. 62 at 78. He further submitted that an issue which was not raised or canvassed at the trial Court and no leave was sought and obtained to argue it at the Appellate Court renders such issue incompetent and should not be entertained. He relied on Udo v. C.S.N.C. (2001) 4 NWLR (Pt.732) 116 at 166 and Tahir v. Udeagbala Holding Limited (2004) 2 NWLR (Pt. 857) 438 at 447.
Learned Senior Advocate therefore submitted that Issue NO.1 in the Appellants’ brief is incompetent since leave of this Court was not sought and obtained to raise the issue of the applicability of S. 178 of the Local Government Laws of Kwara State Cap. 97. He urged the court to strike out Issue No. 1 formulated by the Appellants which is premised on this.
The Appellants addressed this point in the Appellants’ Reply Brief.
While they concede to the point that a fresh issue may only be validly raised on appeal with the leave of the Appellate Court, they counter that there is an exception to this general rule. This exception, they submit is when the fresh issue raised relates to or touches on the jurisdiction of the trial Court. They submit that where, as in this case, an issue bordering on the jurisdiction of the trial Court to entertain a matter at all is raised for the first time on appeal, leave of the Court of Appeal is not mandatory. They rely on the cases of Kumusuonye Michael v. Amalanyo Yuosuo and anor (2004) 15 NWLR (Pt. 895) 9 at 103; Isaac Gaje and 2 ors v. Emmanuel Paye (2003) 8 NWLR (Pt. 823) 583 at 599 – 600. The Appellants argued that as an issue of jurisdiction, it is not necessary for the Appellants to seek leave of this court to file and argue the point of jurisdiction. They contended that the cases relied upon by the Respondents in this regard are inapplicable since the fresh issues sought to be raised therein did not relate to jurisdiction. They therefore urged the court to sustain the competence of Issue NO.1 in the Appellants’ brief and Ground 2 of the Original Grounds of Appeal to which this issue is tied.
From a perusal of the record of proceedings of the court below, it admits of no argument that the issue now raised by the Appellants revolving around the plea of the Statute of Limitation was never raised at the trial. That being the case, the question that begs for an answer is: are the Appellants at liberty to now raise the issue for the first time before this Court? Indeed, the general rule is as stated by the Learned Senior Advocate. It is the rule that to be able to raise a fresh point on appeal, a litigant should first seek and obtain the leave of the Court of Appeal: See A.V.M. Yahaya v. Major Hassan Munchika (2000) FWLR (Pt.17) 145 at 158; Union Bank of Nigeria Limited v. Odusote Bookstore Limited (1995) 9 NWLR (Pt. 42) 588. However, exceptionally, a fresh issue may be raised without leave of the court if it touches on the question of jurisdiction.
Also, an Appellate Court can raise suo motu a fresh issue involving a point of law which the Court considers to be fundamental to the entire proceedings: See Dominic Uzo v. Chukwudi Nnalimo (2000) FWLR (Pt. 3) 414 at 427; Din v. Attorney-General of the Federation (1988) 4 NWLR (Pt. 87) 147 at 183; Odekilekun v. Hassan (1997) 10-12 SCNJ 114 at 129.
In the case of Nigeria Engineering Works Limited v. Denap Limited (2002) FWLR (Pt. 89) 1062, the Supreme Court held that it will allow a new question to be raised where the question involves a substantial point of law, substantive or procedural, and it is obvious that no further evidence could have been adduced which would affect a decision on it.
Again, the Apex Court in the case of Gaje v. Paye (supra) cited by learned Counsel for the Appellants, stated thus per Edozie JSC at page 599 – 600 of the report:
“The Respondent in his brief has raised a preliminary objection to the Appellants’ issue No. (v) which poses the question whether the trial Court had the jurisdiction to entertain the Respondent’s claim. The ground for the objection was that the issue was not canvassed before the Court of Appeal and no leave was sought and obtained to raise it as a fresh issue before this Court. The general principle is that when a party seeks to file and argue in this Court any fresh issue not canvassed in the lower courts whether that issue pertains to land or otherwise, leave to file and argue the issue must be had and obtained first. But where the point or issue sought to be raised relates to the issue of jurisdiction, the point or issue can be properly filed and argued with or without the leave of court even if it is being raised for the first time: See Obiakor v. The State (2002) 10 NWLR R (Pt. 776) 612 at 626.”
Again, this court in the case of Michael v. Yuosuo (supra), reiterated this point emphatically at page 103 of the report. See also the recent cases of Mohammed v. Afribank (Nig) PLC (2006) 17 NWLR (Pt.1007) 131 at 155; Oke v. Oke (2006) 17 NWLR (Pt. 1008) 224 at 237.
It is therefore beyond question that where a fresh issue raised for the first time on appeal touches on a fundamental point of law such as jurisdiction, a party is allowed to raise same with or without the leave of court.
The contention of the Appellants on the issue of jurisdiction in the instant appeal is that the Respondents’ suit, filed 35 months after the cause of action arose, is statute barred by virtue of S. 178 of the Local Government Law, Cap 92 Laws of Kwara State. This is clearly a point of law which goes to the competence of the suit before the trial Court and therefore the jurisdiction of the Court below to have entertained same.
The issue of whether or not an action is statute barred involves the vexed question of the competence of a court to determine the entire suit and any defect therein means the proceedings are a nullity as such defect is extrinsic to the adjudication. This was the finding of the Supreme Court in the case of Araka v. Ejeagwu (2000) 15 NWLR (Pt.692) 684. By virtue of the consistent pronouncements of both the Supreme Court and this Court on the issue, the Appellants are permitted to raise and canvass this issue of law even without having first sought the leave of court to do so.
The point of law being raised is fundamental and an issue which is intrinsic to jurisdiction. I therefore answer Issue NO.1 formulated by the Respondents in the affirmative.
Having put this matter to rest, I now move on to consider the three issues for determination formulated by the Appellant.
Issue One:
Issue one in the Appellants’ brief which deals with essentially the same issue as Issue two in the Respondents’ brief is:
“Whether the Respondent’s action which was filed on 28th April, 2005, that is 35 months after they had left the service of the Appellants, is/was not statute-barred”
This issue arises from Ground 2 of the Grounds of Appeal. In the brief of argument, learned Counsel for the Appellants contended that since the cause of action arose in May, 2002, (when the Respondents ceased to hold office as elected officials of the Appellants), and the action was filed on 28th April, 2005, a period of 35 months had elapsed in between. Therefore, by virtue of Section 178 of the Local Government Law Cap 92 Laws of Kwara State, the suit filed was statute-barred and therefore incompetent ab initio. He relied on the cases of: Fayemi v. Local Government Service Commission Oyo State and Anor (2005) 6 NWLR (Part 921) 280 at 304; Babalola v. Osogbo Local Government (2003) 10 NWLR (Pt. 829) 465 at 482. In addition, learned Counsel submitted that the suit being incompetent ab initio, the lower Court lacked the jurisdiction to entertain same, let alone grant the reliefs sought by the Respondents. He relied on the case of Madukuolu v. Nkemdilim (1962) 2 SCNJ 341. He submitted that Section 178 of the Local Government Law of Kwara State is a clear feature in the case which prevented the trial Court from exercising the jurisdiction which it purported to exercise in giving judgment to the Respondents. Consequently, he urged the Court to hold that the trial Court lacked the jurisdiction to entertain the Respondents’ case in that this action was filed 35 months after the accrual of the cause of action and therefore flies in the face of the provision of Section 178 of the Local Government Law of Kwara State and is statute barred. He therefore urged the Court to resolve Issue NO.1 in the affirmative.
On his part, learned Counsel for the Respondents contended that Section 178 of the Kwara State Local Government Laws Cap 92 Laws of Kwara State which came into effect on 1st September, 1976 is a repealed provision and it is not applicable to this suit. He submitted that the existing limitation law is the Kwara State Limitation Law Cap 89 Laws of Kwara State 1994 which came into effect on 1st October, 1987. In particular, he referred to Section 44 thereof which provides thus:
“Any enactment relating to the limitation of action which were in force in the State immediately before the commencement of this Edict shall cease to apply.”
By this, it is his contention that Section 44 of the Limitation Law of Kwara State expressly repealed the provision of Section 178 of the Local Government Law of Kwara State or any other law on Limitation in force before it came into effect. He therefore submitted that the law which regulates this suit is Section 18 of the Limitation Law of Kwara State Cap 89.
The provision provides:
“No action founded on contract, tort or any other action not specifically provided for in Part I and II of this Edict shall be brought after the expiration of five years from the date on which the cause of action accrued. ”
Learned Counsel called in aid the lead Judgment of Aderemi, JCA (as he then was), in the case of Leadway Assurance Co. Ltd. v. T.U.C. Ltd (2005) 5 NWLR (Pt. 919) 539 at 559-560 where he stated thus:
“Where the provisions of two statutes are plainly inconsistent that effect cannot be given to both at the same time, a repeal of the provisions of the earlier statute by implication on the operation of the subsequent statute is inevitable. In other words, the later statute will be read as having impliedly repealed the former… ”
Learned Counsel further contended that since the relationship between the Respondents and the 2nd Appellant at the material time was one of master and servants which is regulated by the contract of employment, it falls within the provision of Section 18 of the Limitation Law of Kwara State Cap 89. He submitted that if the Respondents instituted this suit 35 months after they left office and the relevant Limitation Law allows them 60 months, they are well within time allowed by the relevant statute. He therefore urged the Court to resolve this issue in the negative and hold that this suit is not statute barred.
In the Appellants’ Reply brief, learned Counsel for the Appellants submitted that the contention by the Respondents is misconceived. He submitted that whereas Section 18 of the Limitation Law of Kwara State is a general provision, Section 178 of the Local Government Law is a special provision applicable specifically to actions against Local Governments. He submitted that the law is now trite that, in the construction of general and special provisions in enactments covering similar subjects, the general clause does not and cannot be made to extend to those things specially provided for. He relied on the Latin maxim:
“Generalis causula non porrigitur ad ea quae antea pecialiter sunt comprehensa.”
He cited the case of Federal Mortgage Bank of Nigerian v. P.N. Onoh (2002) 9 NWLR (Pt. 773) 475 where the said Latin maxim was given a judicial stamp. At page 489 of the report, Uwaifo, JSC stated inter alia thus:
“The law is that where there is a special provision in a statute, a later general provision statute capable of covering the same subject matter is not to be interpreted as derogating from what has been specially provided for individually, unless an intention to do so is unambiguously declared. To do otherwise is to indirectly use a general provision to alter the intention to provide specially by way of an exception for a subject matter”.
The learned Jurist had cited with approval the finding of Bairamian, J. in the case Bamigboye v. Administrator-General (1954) 12 WACA 616, where the latter held thus:
“It is an accepted canon of construction that where there are two provisions, one special and the other general, covering the same subject-matter, a case falling within the words of the special provision must be governed thereby and not by the terms of the general provision.
The reason behind this rule is that the legislature in making the special provision is considering the particular case, hence the special provision forms an exception importing the negative …. ”
Learned Counsel submitted that the intention of the legislature in making Section 178 of the Local Government Laws of Kwara State was/is to specially and specifically provide for actions against Local Governments outside of and by way of exception to the general Limitation Law of the State. He submitted that the suggestion by the Respondents that the Court should employ the use of the general provision, i.e. Section 18 of the Limitation Law of Kwara State, to alter the intention of the legislature to provide specially for actions against Local Governments flies in the face of the canon of construction as well as judicial authorities.
Learned Counsel therefore submitted that there is no inconsistency whatsoever in the two statutes. He contended that whilst the Limitation Laws of Kwara State deals on the general, the legislature in its wisdom has decided to bring up an exception in the form of Section 178 of the Local Government Laws of Kwara State. He submitted that it is axiomatic that “To every general rule, there are exception(s)”; and where exceptions are intentionally created as in this case, it is sheer “crying wolf” to suggest that they amount to inconsistencies.
In response to the arguments of the Respondents that Section 44 of the Limitation Law, Cap 89 has repealed Section 178 of the Local Government Law, Cap 92 because the latter came into effect on 1st October, 1987 while the former came into force on 1st September, 1976, learned Counsel for the Appellants submitted that the repeal of a statute is never presumed or implied. A Statute is not repealed simply because a similar statute dealing with the same subject is subsequently enacted. Instead, there must be clear and direct provision(s) in the subsequent enactment repealing an existing one. For this he relied on the cases of Asims (Nig) Ltd v. L.B.R.B. Development Authority (2002) 8 NWLR (Pt. 769) 349 at 363 – 365, KLM Royal Dutch Airlines v. Mrs. Annah Naya Kumzhi (2004) 46 WRN 59 at 84 per Ogbuagu, JSC.
Learned Counsel went on to submit that it could not be the intention of the legislature that the Limitation Law will repeal the local provisions as any repeal clause in the Limitation Law can only, on the ejusdem generic rule, apply to a previous Limitation Law. If it were intended to affect other statutes such as the Local Government Laws, the Legislature would have expressly stated it as such. Learned Counsel finally drew the Court’s attention to the fact that both the Limitation Law of Kwara State and the Local Government Laws of Kwara State are contained in the same volume 2 of the Laws of Kwara State, 1994 as Caps 89 and 92 respectively. He thereby drew the conclusion that Section 178 of the Local Government Laws, Cap 92 is therefore extant and existing and the two laws have not repealed one another directly or indirectly.
On my part, I have carefully scrutinized the two existing Laws in contention, side by side with the judicial pronouncements in decided cases on the point. I believe that for clarity of argument, it is pertinent to set out the provisions of the said Laws. The Local Government Law Cap 92 Laws of Kwara State of Nigeria 1994 has its commencement date as 1st September, 1976. The provision relevant to this issue is Section 178, and it provides thus:
“178. When any suit is commenced against any Local Government for any act done in pursuance or execution or intended execution of any law 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 next after the act, neglect or default complained of, or in the case of a continuance of damage or injury within six months after the ceasing thereof’.
Whereas Section 18 of the Limitation Law, Cap 89 Laws of Kwara State of Nigeria, whose commencement date is 1st October, 1987 states thus:
“18. No action founded on contract, tort or any other action not specifically provided for in Part I and II of this Edict shall be brought after the expiration of five years from the date on which the cause of action accrued. ”
Before going into the issue of which of the two provisions is applicable to this case and whether or not the Respondent’s suit is statute-barred, it is pertinent to state from the onset that it is not in issue, as it is mutually agreed, that whereas the cause of action in this case arose in May, 2002 when the Respondents ceased to hold office as elected officials of the Appellants, the suit was filed at the High Court on the 28th April, 2005. Thus, the suit was filed clearly 35 months after the cause of action arose. If the applicable law is Section 178 of the Local Government Law, then, without much ado, the suit would clearly be statute barred. However, if it is found to be Section 18 of the Limitation Law, then it would have been filed within time prescribed by law and therefore competent before the court. This is because, even while the wordings of Section 178 of the Local Government Law are express and clear, it has received judicial interpretation in some cases. Chief among such authorities are: Fayemi v. Local Government Service Commission, Oyo State and Anor (Supra) and Babalola v. Osogbo Local Government (Supra). As was pointed out by learned Counsel to the Appellants, these two cases also related to claims for arrears of salaries and/or allowances by persons who had been officers of the various Local Governments. Section 172 of the Local Government Law of Oyo State interpreted therein is in pari materia with Section 178 of the Local Government Law of Kwara State now under consideration. This Court, in the case of Fayemi v. Local Government Service Commission, Oyo State, held that Section 172 of the Local Government Law of Oyo State, 1978 which provides a six month time limit for actions against the Local Government Council is a condition precedent which relates to the jurisdiction of the court.
“Failure to comply with it touches on the capacity of the trial court to be properly seized of the case before it, because failure to satisfy a condition precedent in any litigation is patently fatal to jurisdiction which is foundational as it renders such action incurably incompetent. The consequences of non-compliance by the plaintiff is detrimental to the action instituted as it robs the Court of jurisdiction to entertain the action. ”
This Court, again in an earlier case of Babalola v. Osogbo Local Government (Supra), wherein the Appellant had sought a declaration that he was entitled to certain prescribed salaries and allowances, was consistent in finding that an action brought against a Local Government which is filed outside of the six month period stipulated by the Local Government Law is incompetent ab-initio as it is statute-barred.
Consequently, it is my finding that by virtue of Section 178 of the Local Government Law Cap 92 Laws of Kwara State, 1994, an action against any Local Government must be commenced within six months next after the act or, in the case of a continuance of damage or injury, within six months after the ceasing thereof.
Now, having established the purport of Section 178 of the Local Government Law, the submission of the learned Counsel for the Respondents is that this law is no longer operational as it has since been repealed by Sections 18 and 44 of the Limitation Law, Cap 89 Laws of Kwara State, 1994. Having already reproduced Section 18 of the said Law above I will set out only Section 44 hereunder. It provides:
“44. Any enactments relating to the limitation of action which were in force in the state immediately before the commencement of this Edict shall cease to apply.”
Learned Counsel for the Respondents has submitted that the above provision has expressly repealed the provision of Section 178 of the Local Government Law of Kwara State or any other law on limitation before it came into effect. However, I beg to differ. The wordings of this Law certainly do not expressly repeal Section 178 of the Local Government Law. Instead, it is clearly a general provision which refers to “Any enactments relating to the limitation of action … ” The Courts have since drawn a distinction between general provisions and special provisions. Section 178 of the Local Government Law is a special provision relating specifically to suits brought against Local Governments, while Section 18 of the Limitation Law is general and relates to other suits founded in contract, tort, etc. In the case of Federal Mortgage Bank of Nigeria v. Onoh (2002) FWLR (Pt 107) 1244 at 1252 – 1253, the Apex Court made up of Kutigi JSC, Ogbuegwu JSC, Mohammed JSC, Uwaifo JSC and Ejiwunmi JSC drew a very clear distinction and so, put the matter beyond question. In the lead Judgment delivered by Uwaifo, JSC, the Supreme Court held thus:
“The law is that where there is a special provision in a statute, a later general provision in the same statute capable of covering the same subject matter is not to be interpreted as derogating from what has been specially provided for individually unless an intention to do so is unambiguously declared. To do otherwise is to indirectly use a general provision to alter the intention to provide specially by way of an exception for a subject matter ….
The Latin maxim is: Generalis clausula non purrigitur ad ea quae antea specialiter sunt comprehensa (A general cause does not extend to those things which are before specially provided for).
In Bamgboye v. Administrator-General (1954) 14 WACA 616, Bairamian, J. explained the principle when he observed at page 619 as follows:
“It is an accepted canon of construction that where there are two provisions, one special and the other general, covering the same subject matter, a case falling within the words of the special provision must be governed thereby and not by the terms of the general provision.
The reason behind this rule is that the legislature in making the special provision is considering the particular case and expressing its will in regard to that case; hence the special provision forms an exception importing the negative; in other words the special case provided for in it is excepted and taken out of the general provision and its ambit; ‘the general provision does not apply’…..The above rule of construction applies equally, of course, when the special and general provisions are enacted in the same piece of legislation…”
I cannot say it any better than the erudite Jurist has, save to find in accordance with this holding by which I am equally bound. Consistent with the finding of the Supreme Court on this, it will be fallacious to contend that the two provisions are inconsistent. Instead, Section 178 of the Local Government Law is a special provision providing for a specific body(ies), while Section 18 of the Limitation Law is a general provision which provides for all other situations. It is therefore my finding on this score that Section 178 of the Local Government Law, Cap 92 Laws of Kwara State is extant, existing and applicable to this case.
Learned Counsel for the Respondents has equally submitted that by the provision and operation of Section 44 of the Limitation Law Section 178 of the Local Government Law has been expressed repealed. A close examination of Section 44 of the said Law however does not bear out this submission, as the Law does not anywhere therein expressly abrogate Section 178 of the Local Government Law. Instead, it speaks only in general terms of “any enactment relating to the limitation of action … ” The law is that the repeal of a statute is never presumed or implied. It is always desirable that the repeal must be via a clear and direct provision in a subsequent enactment repealing an existing one. This was the finding of this court in the case of ASIMS (Nig) Ltd v. Lower Basin Development Authority (Supra), where Tanko Muhammad, JCA, (as he then was), held thus at Page 110 – 111 of the report:
“A repeal is never presumed or implied but must be direct …. Secondly, learned counsel for the appellant has failed to particularize the specific provision of cap 407 LFN which repealed the provision of the Regional Law.
Thus the general principle of law that a statute is not repealed simply because a similar statute dealing with the same subject is enacted still holds good and valid.
Ezeji v. Ike (1997) 2 NWLR (Pt. 486) 206; Oyeyinka v. Osague (1994) 2 NWLR (Pt. 328) 517.”
The law is now settled that where it is the intention of a later statute to modify or repeal an earlier one, such intention must be clearly stated or unequivocally deducible from the provisions of the later statute. In the case of Abacha v. Fawehinmi (2000) FWLR (Pt. 4) 533, a full complement of the Supreme Court comprising of Belgore, JSC, (as he then was) Ogundare, JSC, Uthman Mohammed, JSC, Iguh, JSC, Achike, JSC, Uwaifo, JSC and Ejiwunmi, JSC, held that whereas the State Security (Detention of Persons) Act expressly suspended the operation of Chapter IV of the 1979 Constitution on the Fundamental Rights of the Citizens of this country, no mention was made of the African Charter, Cap. 10, Ogundare JSC thus held at page 589 of the report:
“Be it noted that while Chapter IV of the Constitution was suspended for the purposes of the Act, no mention was made of Cap. 10 which was then merely in existence I would think that Cap. 10 remained unaffected by the provisions of section 4 (1). A treaty is not deemed abrogated or modified by a later statute unless such purpose has been clearly expressed in the later statute”
Again at page 599 – 560 of the same report, Iguh, JSC stated thus:
“… It is crystal clear that whereas the provisions of Chapter IV of the Constitution of the Federal Republic of Nigeria, 1979 deals with fundamental human rights were expressly suspended for the purpose of the State Security (Detention of Persons) Act by section 4 thereof, the provisions of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, 1983, Cap. 10, Laws of the Federation of Nigeria, 1990 were left undisturbed and therefore unaffected”.. In my view, the law makers, if they had intended to suspend or repeal the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, 1983 along with Chapter IV of the Constitution of the Federal Republic of Nigeria, 1979 would have specifically so stated by clear words.”
Therefore, although a later statute may suspend or repeal an earlier one either expressly or by implication, suspension or repeal by implication is not, as a general rule favoured by the courts in the absence of clear words to that effect. I am not unmindful of the findings of this Court in the case of Leadway Assurance Co. Ltd v. T.U.C. Ltd (Supra) cited by learned Counsel to the Respondent. This was a suit in which a contract of marine insurance to cover the Respondent’s cargo was concluded between the Appellant and the Respondent on the 7th March, 1997. The Respondent however paid the premium for the policies of insurance on the 10th and 7th March, 1997. However, before this payment, the ship carrying the Respondent’s cargo got lost at sea with all the goods of the Respondent on the 9th March, 1997. By Section 23 of the Marine Insurance Act, 1962, such a contract of Marine Insurance shall be deemed to be concluded when the proposal of the assured is accepted by the insurer, whether the policy is issued or not. However, by a later law, Section 50 of the Insurance Act, 1997, the receipt of an insurance premium shall be a condition precedent to a valid contract of insurance, and there shall be no cover in respect of an insurance risk unless the premium is paid in advance. The argument before the Court was that the former law was repealed by the later law. Faced with this dilemma, Omage, JCA, delivering the lead Judgment, held inter alia thus at page 556:
“Generally, a statute is definite as’ to what it repeals by its enactment; and a schedule may recite the existing law repealed. … The courts in the performance of their functions as interpreters of the law usually lean against implying the repeal of law by implication. However, where the provisions of the two Acts are so plainly repugnant, one to the other provision, and demand inconsistent conclusion that effect cannot be given to both at the same time, a repeal of the earlier provision of the law by implication is inevitable…”
(Underlining mine for emphasis).
In his contributory Judgment, Aderemi, JCA, (as he then was), therefore also opined thus:
“I must say that there are no express words in Section 50 of the Insurance Decree NO.2 of 1997 suggestive of repealing the provisions of Section 23 of Insurance Act of 1961. The two legislations would however be in my view, to be addressing the same subject matter generally but they are both inconsistent. In such a situation of such inconsistency, an implied repeal of statutes can be imputed. Then what is the principle guiding implied repeal of statutes and its effect? The answer is simply this: where two Acts are inconsistent or repugnant, the latter will be read as having impliedly repealed the earlier…. ”
From the re-hash of the facts of the above -cited case and the ratio decidendi of the Judgment, it is clear that the case is clearly distinguishable from the instant appeal as it is not on all fours. In the case cited, the two provisions of law on the same subject matter were totally inconsistent with each other, and could not, without violence being done to one, co-exist together. One of the laws, of necessity, had to give way. And that explains why the learned Jurists were forced to depart from the general rule in order to avoid an absurdity. In the instant appeal, there is no such inconsistency. Instead, it is a case of a specific legislation made to cater for special situations, and a general legislation made for other situations. It is for this reason, and for others earlier on stated, that I respectfully decline to follow the decision of this court in the case of Leadway Assurance Co. Ltd. v. T.U.C. Ltd (Supra), as it was made to cater for an exceptional situation.
It is therefore for all the foregoing reasons that I find that Section 178 of the Local Government Law, Cap 92 Laws of Kwara State, 1994 is still extant and existing. That being the case, it is a condition precedent to the action. The Respondents in this appeal were therefore required by law to have filed their suit against the Appellants within six months after the cause of action accrued. Going by the facts stated by the Respondents themselves in paragraphs 1-3 of their Writ of summons, the cause of action accrued in May, 2002. However, from the court’s endorsement on the said Writ, the suit was not filed until the 18th March, 2005, 35 months after the cause of action accrued. This is clearly in breach of Section 178 of the Local Government Law. Consequently, I find that the suit is statute barred and therefore incompetent ab initio. I resolve the first issue in favour of the Appellants.
Issue Two.
Whether or not the trial Court was right in holding that the allegations made by the defence did not amount to a defence on the merit and in entering Judgment for the Respondents.
Original Ground 1 and Additional Grounds 1, 2, 4 and 5.
On this issue, Learned Counsel for the Appellants submitted that, this suit, being a matter commenced on the Undefended List, the Appellants filed a Notice of Intention to defend the action, in consonance with the Rules of Court, wherein they set out sundry defences. He referred to pages 46 – 61 of the record of proceedings for this, and in particular to paragraphs 8-19 of the Appellants’ affidavit at pages 48 – 49 of the record. He summarized the issues thrown up by the Appellants’ affidavit evidence as follows:
(i) That the Respondents took bank loans for the repayment of staff salaries but diverted the loan proceeds.
ii) That the Respondents have refused to account for the loan proceeds in excess of N50 million inspite of repeated demands by the Appellants.
iii) That the Respondents obtained Agricultural loans from the Appellant which they later wrote off, in consideration of their unpaid salaries.
(iv) That the Respondents were actually paid their salaries for the months of October, November and December, 2000 which same salaries are included in the claim before the court”.
Learned Counsel complained that in the face of these facts, the learned trial Judge held at page 71 of the record that:
”There are several allegations made by the defence.
They are mere assertions …”
Learned counsel also referred to the Bank loan proceeds which the Appellants allege the Respondents diverted to themselves in paragraphs 8 – 12 of the Appellants’ affidavit. This assertion, they buttressed with letters by which the loans were obtained as in Exhibits A1 and A2 at pages 51 and 52 of the record. The averments in their affidavit are to the effect that the Respondents have refused to account for the loan proceeds which is in excess of N50 Million. He contended that this, at the very least, amounts to a triable issue and sufficient ground for the Court to have transferred the case to the General cause list for evidence to be called. Learned Counsel submitted that the ”Undefended list procedure’ is not intended to short circuit a defendant who has valid and provable facts that are clearly alleged. He further submitted that once a defendant’s affidavit casts doubt on the plaintiff’s case, the defendant should be let in to defend. For these propositions of law, he relied on the cases of: Job Charles Nigeria Limited v. Okonkwo (2002) FWLR (Pt. 117) 1067 at 1071; Frank Muobike v. Nwigwe (2000) 1 NWLR (Pt. 642) 620 at 638; Anumobi v. Wezozo (2002) 12 NWLR (Pt. 835) 617 at 636 and 639; and Fesco Nigeria Limited v. N.R. and C.P. Co. Ltd (1998) 11 NWLR (Pt. 573) 227 at 233.
Learned Counsel further submitted that since the Appellant’s affidavit cast doubt on the Respondents’ case, the Appellants ought to have been let in to defend the case. He therefore urged the Court to resolve ‘Issue No. two’ in the negative against the Respondents.
On his own part, Learned Counsel for the Respondents submitted that the discretion to determine whether a triable issue has been disclosed or not in an affidavit of Intention to defend a suit instituted under the Undefended list is strictly that of the trial Court and not of the Appellate Court. The decision must be gathered from within the confines of the affidavit of Intention to defend and not from outside. He relied on the case of China Goe Eng. Co. v. Nambative (2001) 2 NWLR (Pt. 698) 529 at 544. He contended that Exhibits “A1” and “A2” to the Appellants’ affidavit at pages 51 – 52 of the record are mere applications for overdraft facilities with no evidence that same were granted. Also, that by Exhibit ‘B’ at pages 53 – 60 of the record, the Agricultural loan was granted to the Respondents as well as to other staff of the 2nd Appellant and some farmers in the Local Government, and that this was in consideration that salaries were not paid. These loans were written off not in lieu of salaries but in consideration of poor harvest and non-payment of salaries to the Respondents and other staff. In respect of Exhibit ‘C’ to the Appellants’ affidavit at page 61 of the records, learned Counsel submitted that it is merely a schedule of payment with no evidence to show that such a request was met by the bank. Learned Counsel instead relied on the Exhibit ‘E’ attached to the Respondents’ affidavit in support of the Writ which was prepared by the Appellants on 27th June, 2003, one year after the Respondents had left service. Learned Counsel therefore submitted that it is not sufficient for the defendant to depose in an affidavit that he has paid the sum claimed by the plaintiff. He must show proof of such payment. He referred to the cases of Abdullahi v. Buhari (2004) 17 NWLR (Pt. 902) 278 at 303 and Tahir v. Undeagbala Holdings Ltd. (2004) 2 NWLR (Pt. 857) 438 at 447 on this. He further relied on the case of UTC (Nig) Ltd v. Pamotei (1989) 2 NWLR (Pt. 103) 244 at 299 to submit that the Appellants were required to disclose a defence on the merit and not a defence which established prima facie evidence. He contended that Exhibit ‘E’ amounts to an admission of the Respondents’ claim, and therefore afforded the Plaintiffs/Respondents good ground for instituting the action under the Undefended List procedure. He relied on the case of Aikabeli v. African Petroleum PLC (2001) 6 NWLR (Pt. 708) 93 at 101. He therefore urged the Court to hold that the learned trial Judge was right in entering Judgment in favour of the Respondents on the Undefended List procedure. He urged the Court to dismiss the appeal on this ground too.
A claim under the Undefended list procedure is by its very nature an action for a liquidated sum which is an amount previously agreed on by the parties or which can be precisely determined or ascertained from their terms of agreement. Therefore, the procedure is designed to obtain a summary judgment without the necessity of going into a full trial. It is meant for a quick disposal of cases which by their very nature are virtually uncontested. The law with regard to this procedure is that the trial Court, in the exercise of its discretion whether to hear the case as an undefended one or to transfer it to the General cause list, is required to maintain an even balance in the consideration of the affidavits filed by the parties respectively in order to arrive at a just decision. A defendant who has no real defence to the action should not be allowed to dribble and frustrate the plaintiff in order to deprive him of the summary judgment he would have been entitled to by way of delay tactics instead of offering any real defence to the plaintiff’s action.
In the instant appeal, the claim of the Respondents in their Writ of Summons is for the cumulative sum of N25,767, 174. 08K, plus 10% of the total sum until the Judgment sum is liquidated. The principal sum claimed represents the salaries of the Respondents from June 1999 to November, 2000, May, 2001 to December, 2001 and January, 2002 to May 2002, approved furniture allowances and severance gratuities. By paragraphs 4 (d), (e), (f) and (g) of the affidavit in support of the Writ, the Respondents set out in detail the nature and amount of their monetary claim. By paragraph 4 (h), they claim that the Appellants, in documents prepared by them and exhibited as Exhibits ‘E’ and ‘F’ respectively, acknowledged their indebtedness to the Respondents. By paragraph 4 (k), the Respondents aver that the Appellants have failed and/or refused to pay them their claims despite several demands to that effect. I have examined the documents referred to in these paragraphs. Exhibit ‘E’ is a letter dated 16th July, 2003 from the office of the Director Personnel Management Moro Local Government showing all outstanding salaries and allowances to members of staff and ex-elected Council members.
The covering letter addressed to the Permanent Secretary, Ministry of Local Government and Chieftaincy Affairs, Ilorin states inter alia thus: “FORWARDING OF OUTSTANDING LIABILITIES OF SALARIES AND ALLOWANCES OF EX-ELECTED COUNCIL MEMBERS.
Please refer to your radio message of 9th July, 2003 on the above subject matter, and to forward to your office the outstanding liabilities of salaries and allowances of ex-elected council members.
Also included is the outstanding 13 months staff salaries and leave bonuses for the years 2000,’ 2001 and 2002 as it affects Mora Local Government only. ”
Attached as annexures to this letter is a list detailing the indebtedness of the 2nd Appellant to the said ex-elected Council members. The names of the Respondents are contained at serial Nos 2, 19, 18, 23 and 24 of both annexures to this letter. Against their names are the months for which they are owed salaries as well as the amount owed each person. In the face of paragraph 4 (h) of the Respondents’ affidavit which exhibited this Exhibit ‘F containing an admission of the Appellants’ indebtedness in respect of arrears of salaries to the Respondents, there is no specific response, except for a general traverse and denial in paragraph 5 of the affidavit in support of the Notice of Intention to defend.
Therein, the Appellants state as follows:
“5. That paragraph 4 (d) (e) m (g) (h) (i), 5, 6 and 8 of the supporting affidavit are not true.”
It is settled law that a general traverse does not constitute an answer to a specific allegation. Where a deposition on oath is made against a party and he/she intends to dispute same, he/she must make an answer specifically addressing the specific claim, and where applicable, supply facts and documents to buttress same. However, the Appellants went on in paragraphs 8 – 13 of their own affidavit, (at page 48 of the record), to state that the Respondents and their erstwhile colleagues took several loans and/or overdrafts in excess of N50 Million from Banks for the purpose of paying their salaries. They annexed Exhibits “A1” and “A2” in support of these averments. I have examined the said documents, as did the lower Court, and I am in total agreement with learned Counsel for the Respondents that the said Exhibits are merely applications addressed to the Manager of Union Bank of Nigeria PLC, Bode Sa’adu, for over-draft facilities in the sum of N12 Million and N15 Million respectively. These in no way bear out the assertion of the Appellants. And even though it is true that the Respondents did not file a further affidavit to dispute this, it does not detract from the duty of the Appellants as defendants in a suit on the Undefended list. In these proceedings, which are sui generis, the principle of law is that the defendants’ affidavit must condescend upon particulars and should, as far as possible, deal with the plaintiffs’ claim and affidavit and state clearly and concisely what the defence is and facts relied upon to support it. A mere general denial that the defendant is not indebted will not suffice unless the grounds on which the defendant relies show that he is not indebted as stated. See the cases of Peter Tiwell Nigeria Ltd v. Inland Bank Nigeria Ltd (1997) 3 NWLR (Pt. 494) 408; Nya v. Edem (2000) 8 NWLR (Pt. 699) 349 at 360.
The Appellants, (as Defendants), went on to allege at paragraphs 14 – 16 of their affidavit at pages 48 – 49 of the record that the Respondents, (as Plaintiffs), took Agricultural loans which were never repaid and which were written off in consideration of any salary that was owed to the Plaintiffs. They relied on Exhibit B annexed to their affidavit to buttress these averments. A close perusal of the Exhibit B shows that is the “Minutes of the Moro Local Government Council Executive Meeting” held on March 13th, 2002. It is contained at pages 53 – 60 of the printed record. Specifically at page 57, the issue of the Agricultural loan is addressed. For ease of reference, the relevant portion is reproduced hereunder:
“The Executive Council unanimously resolved that the Agricultural loan should be written off. The members of the Executive Council held the view that such action will reduce the sufferings of the farmers, Local Government staff and the Political office holders especially to cushion the bad effect the non-payment of salaries in the last one year had created on the lives of the Local Government staff and their families. The members of the Executive Council further resolved that such action of the Local Government should be regarded as complimentary to the Federal government’s program on Poverty Alleviation since the loan cut across the Local Government Area.”
This document clearly takes the wind out of the sail of the Appellants’ ship, as the reason for writing off the Agricultural loan as stated in the minutes of meeting of the Executive Council is totally at variance with the reasons imputed to same especially in paragraph 16 of the Defendants’/Appellants’ affidavit at page 49 of the record. The Agricultural loan written off for farmers, members of staff and Political Office Holders in the Local Government Council was not in consideration of any salaries owed. No wonder the learned trial Judge waved off the Defendants’ affidavit as containing mere assertions and allegations. It was indeed a bold attempt to hoodwink the Court, which attempt failed woefully.
Finally, in paragraphs 17 and 18 of the defendants’ affidavit, they allege that by a copy of the Schedule of salary payment for the months of October, November and December, 2000 exhibited as Exhibit ‘C’ to the said affidavit, the Plaintiffs/Respondents, whose names appear as serial nos. 17, 13, and 18 collected salaries for those months and in the amounts listed against their names. Once again a close examination of the said Exhibit ‘C’ will reveal the fallaciousness of these averments.
Exhibit ‘C’ is a letter dated 28th February, 2001 and addressed to the Manager, Union Bank of Nigeria PLC, Bode Sa’adu. It states as follows:
“SCHEDULE OF SALARY PAYMENT
Please kindly credit the account of the following Local Government Public Office holder (sic) being payment of their salaries for the month of October, November and December, 2000.
Below is the detail (sic) list of them and their amount:-
(Signed)
Alhaji Suleiman Sadiq,
Treasurer,
Mora Local Government, Bode Sa ‘adu.”
Indeed, the names of the 2nd, 3rd and 4th Plaintiffs/Respondents appear as serial nos. 17, 13 and 18 respectively in the letter. However, that is where it ends. This document, which speaks for itself, is merely a request to the Bank to credit the accounts of these officials. Nowhere therein does it go further to state or confirm that the request was acceded to and that the accounts were so credited. There is no evidence on the face of it that the letter was ever dispatched to the Bank or that the Bank was in receipt of same or that it acted in one way or the other on the request. The bottom line is that this document does not in any way buttress or substantiate the averments of the Defendants/Appellants in paragraphs 17 and 18 of their affidavit that the Plaintiffs/Respondents received the salaries for the months stated therein. Instead, it raises more questions than answers. It certainly does not constitute a defence on the merit where document offered in proof of an averment does not bear out the averment. I therefore agree with the conclusion reached by the learned trial Judge that this is also a “wild allegation.” On the whole, after due consideration of all the affidavit evidence adduced before the trial Court, I see no reason to tamper with the findings of fact made by it. The defence disclosed by the defendants/Appellants in their affidavit in support of the Notice of Intention to defend is nothing but a sham defence. They were therefore not entitled to be let in to defend the suit as such a sham defence can never be equated to a defence on the merit as required by the Rules of Court.
In the light of the above finding, issue no. 2 is resolved against the Appellants in favour of the Respondents. Therefore, Ground 1 of the Original Grounds and Additional Grounds 1, 2, 4 and 5 fail.
Issue Three:
Whether or not the trial Court has a duty to pronounce on all issues properly raised before it and whether the trial Court’s failure to pronounce on the issue of the agricultural loan duly raised by the defence did not amount to a miscarriage of justice. Additional Ground 3.
Learned Counsel for the Appellants on this issue submitted that, even though the Appellants, vide paragraphs 14, 15 and 16 of their affidavit in support of their Notice of intention to defend the suit, deposed that the Respondents took Agricultural loans from the 2nd Appellant which loans were never repaid but written off in consideration of salaries owed to the Respondents, and yet these same salaries were claimed afresh, the learned trial Judge refused and/or failed to make any pronouncement on same in his Judgment. He relied on the cases of Ojo v. Adeleke (2002) 8 NWLR (Pt. 768) 223 at 232 and Ogolo v. Ogolo (2003) 18 NWLR (Pt. 852) 494 at 521 to submit that the learned trial Judge had a duty to consider and pronounce on all issues duly raised before the Court. The Respondents’ response to this is that the learned trial Judge acted properly in line with the procedure for hearing suits on the Undefended list. He referred to Order 23 Rule 3 (1) of the Kwara State High Court (Civil Procedure) Rules, 2005 which provide thus:
“If the party served with the Writ of Summons and Affidavit delivers to the Registrar not less than 5 days before the day fixed for hearing a notice in writing that he intends to defend the suit together with an affidavit disclosing a defence on the merit the Court may give him leave to defend … ”
Learned Senior Advocate submitted that the learned trial Judge, on being satisfied that the defendant’s affidavit disclosed no defence whatsoever, refused to enter the case on the General cause list and ruled as follows at page 70 of the record:
“The computation of the entitlements of the former public officers was done on 16.7.2003 long after the demise of that administration by the appropriate officer of the second defendant. This is an acknowledgment of the true position of the defendants’ indebtedness and, accordingly Judgment is hereby entered for the Plaintiff as per the Writ of Summons under the Undefended list.”
The law is indeed settled that it is the primary duty of the trial Court to make findings of fact on material issues, nay, on all issues placed before it. Where a trial Court fails to make a finding of fact on the specific issues of fact and in consequence fails to resolve the issues that arise in the pleadings of the parties, the proper course an Appellate Court should take is to remit the case for retrial by another Judge. However, as afore stated in the body of this Judgment, proceedings under the Undefended list procedure are sui generis. Issues are not joined on pleadings. Instead, the suit is heard and tried completely on the affidavit evidence before the Court. This evidence consists of evidence on oath which preferably, where available, should be buttressed by documentary evidence. By Order 23 Rule 4 of the said Rules of Court, where the trial Judge is satisfied that a defence on the merit has been disclosed by a defendant, he should transfer the case to the General cause list for hearing by way of taking oral evidence. However” in the event that he finds otherwise, then his only duty is to proceed to enter Judgment for Plaintiff in terms of the Claim. In the light of the explicit finding by the learned trial Judge at page 70 of the record, there was no further call on him to make specific findings on each of the heads of claim.
Besides, as has been found earlier on in respect of Issue NO.2, a close perusal of Exhibit B would show the paucity of the Appellant arguments. Therein, the documentary evidence before the Court clearly disclosed that the Agricultural loan given to the Respondents, other staff of the 2nd Defendant and farmers, were written off, not in lieu of salaries owed, but in consideration of the bad harvest, hardships being suffered generally due to unpaid salaries and in support of the Federal Government’s ‘Poverty Alleviation Program.’ The Appellants were therefore merely clutching at straw at this point, and the documentary evidence before the Court disclosed the shallowness of the defence for what it was. In the face of the Exhibit B attached to the affidavit in support of the Notice of intention to defend, the learned trial Judge was on solid ground to have found as he did. Since I have already treated this matter in depth under Issue 2, I merely adopt my findings therein in respect of the issue of the Agricultural loan. Suffice is to say here that the findings of the learned trial Judge in respect of the affidavit and documentary evidence before him was proper in these proceedings and he didn’t need to go further than this, as if the case was being tried on pleadings. Issue 3 is therefore necessarily also answered in the negative.
In the result, having resolved Issue No. 1 in the Appellants’ brief, which touches on the competence of the action before the trial Court, in the affirmative, I am constrained to find that the Appeal has merit. The Appeal therefore succeeds on this Ground alone. It is allowed. I hereby set aside the decision of the learned trial Court and dismiss the Respondents’ case in its entirety for being statute-barred having been commenced outside the limitation period of 6 months prescribed by S. 178 of the Local Government Law, Cap 92 Laws of Kwara State, 1994. I award costs of N10, 000.00 in favour of the Appellants against the Respondents.
Other Citations: (2007)LCN/2205(CA)
