Festus Ibidapo Adesanoye & Ors V. Prince Francis Gbadebo Adewole & Anor (2000)
LAWGLOBAL HUB Lead Judgment Report
UWAIFO, J.S.C.
This appeal deals with how to determine whether a statute is retrospective or prospective in operation and the effect thereof in relation to the facts of the present case. According to Driedger, Construction of Statutes page 186, there are three kinds of statutes that can be said to be retrospective, namely (a) statutes that attach benevolent consequences to a prior event (b) statutes that impose a penalty on a person who is described by reference to a prior event, but the penalty is not a consequence of the event; (c) statutes that attach prejudicial consequences to a prior event. It is said that it is the last that attracts the presumption against the retrospective operation of the law: see Understanding Statutes by Crabbe, 1994 edn., page 169. The learned author of Craies on Statute Law. 7th edn., page 387, relying on the definition by Sedgwick, says that a statute is to be deemed to be retrospective, which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already passed. But I think it is well established that whether a retrospective operation will be given to such a statute will depend on the language of the statute and the peculiar facts of the case.
The plaintiff (now 1st respondent) took out a writ at the High Court, Ondo, on 14 October, 1991 against the 1st – 4th defendants (now appellants), as well as the Attorney-General of Ondo Stae (now 2nd respondent) claiming three reliefs. An amended writ and amended statement of claim were later filed on 3rd March, 1992. The reliefs as finally claimed were stated as follows:
“(i) A declaration that the purported approval of the 1st defendant as Osemawe of Ondo published in the Official Gazette Chief Edict No.11 of 1984 Notice is ultra vires, void and of no effect whatsoever.
(ii) A declaration that the purported appointment of the 1st defendant as Osemawe of Ondo is contrary to the custom appertaining to the Chieftaincy void and of no effect.
iii) Order restraining the 1st defendant from parading himself as Osemawe elect,”
After pleadings had been exchanged, the appellants brought an application to have the suit struck out on two grounds, namely (a) that the 1st respondent failed to give security for the sum of N25,OOO.OOprior to instituting the suit as required by section 2(1)(a) of the Approval of Appointment of an Oba and Presentation of Instrument of Appointment and Staff of Office Edict No.2 of 1992 (Edict No.2 of 1992); (b) that the 1st respondent did not institute the suit within seven days of the date of the appointment of the 1st appellant.
The said Edict No.2 of 1992 under which the 1st appellant was appointed the Osemawe of Ondo was originally given a commencement date of 23 December, 1991 by the Ondo State Supplementary Official Gazette No.2 published on 16 January, 1992. But sometime later, Ondo State Official Gazette No. 6 vol. 19 dated 10 February, 1994 published as Ondo State Notice No. 10 corrected the date of commencement of Edict No. 2 of 1992 to read 3 January, 1984 instead of 16 January, 1992. The learned trial judge (Babalola, J.) held that retrospective operation must be given to the said Edict with effect from the back-dated date of 3 January, 1984. He further held that the giving of security for the sum of N25,000.00 and the requirement to institute a suit within seven days of the appointment of the 1st appellant to challenge his appointment as the Osemawe of Ondo were procedural conditions precedent to the competence of the suit filed by the 1st respondent on 14 October, 1991. The learned trial judge seemed to have found support in the case of Attorney-General v. Vemazza (1960) A.C. 965, to which I shall have to return in the course of this judgment. He therefore struck out the suit in a ruling he gave on 24 May, 1994. It ought to be made clear that the suit was struck out only on the ground that the 1st respondent failed to fulfil the condition precedent for giving security at the same time the suit was filed when the learned trial judge held:
“The failure of the plaintiff/respondent to deposit the sum of twenty five thousand Naira in the High Court Registry Ondo State at the same time the necessary court processes were filed (even up till now) precludes the court from examining the merit of the case being put forward. The case is therefore struck out.”
In the appeal which came before the Court of Appeal against the said ruling, several issues (altogether 18, although some of them were considered to have overlapped and some others to be irrelevant or incompetent) were raised by three sets of parties to the appeal in their respective briefs of argument. On 8 December, 1997, the lower court in a carefully considered judgment, reported as Adewole v. Adesanoye & Ors (1998) 3 NWLR (Pt.54 I) 175, allowed the appeal upon only one issue regarded as arising for determination against the ruling of the trial court striking out the suit. The said issue was stated by per Mahmud Mohammed J.C.A. at page 190 as follows:
“Whether the learned trial judge was right in striking out the suit of the appellant on the ground that the appellant as plaintiff had failed to comply with the condition precedent of paying the deposit of N25,OOO.OOin the High Court Registry at Ondo at the same time the necessary court processes were filed as prescribed by sections 1 and 2 of Edict No.2 of 1992 of Ondo State, (which failure) had precluded the trial court from exercising jurisdiction to hear the case,”
[Parenthesis added by me]
The lower court ordered that the suit be heard by another judge of the Ondo State High Court.
The appeal against that decision to this court was fought by the appellants and the 1st respondent (now simply the respondent). The Attorney-General; Ondo State, who was the other respondent did not file a brief of argument and did not appear at the hearing.
The appellants have set out four issues for determination as follows:
“(1) Whether the Court of Appeal was right when having held that the Ondo State Government promulgated Edict No.2 of 1992 with retrospective effect in exercise of legitimate legislative power then went further to hold that the plaintiff could not be expected to comply with the conditions precedent contained therein his suit having (been) commenced before the Edict was promulgated.
(2) Whether the Ondo State Edict No.2 of 1992 with its attendant retrospective effect is not applicable to the suit of the 1st respondent.
(3) Whether considering the clear and unambiguous provisions of the Edict the Court of Appeal was right to use the headings of the Edict to hold that the provisions of sections 1 and 2 of the Edict are mere incidentals to the main purpose of the Edict.
(4) Whether the motion dated 9th July, 1996 for leave to file Notice of intention to contend that ruling, be affirmed on other grounds other (sic) than those relied upon by the trial court and which was granted did not constitute leave of the court to argue on appeal this point which was not raised at the trial court.”
I think the first three issues recited above really amount to one issue which may be framed thus:
Whether having regard to the provisions of Edict No.2 of 1992, the Ondo State Notice No. 10 in the Ondo State of Nigeria Gazette No. 6 vol. 19 page 20 of 26 April, 1994 making 3 January, 1984 commencement date of the said Edict, the date the appointment of the 1st appellant as the Osemawe was approved and the date the 1st respondent filed his suit, the lower court was right to declare the said suit competent even though it did not comply with the conditions specified in that Edict
As for issue 4, I should perhaps dispose of it first. The appellants filed five grounds of appeal. None of those grounds appears to support the issue which raises the point that the lower court failed to regard the respondents’ notice filed by them with the leave of court to argue a new issue not raised at the trial court. The only ground of appeal which might have been thought relevant to that issue (Ground C) reads:
“The Court of appeal erred in law when the court held as follows:
‘In the present case therefore, the respondents clearly required the leave of this court to canvass their points in this appeal. Not having sought for and obtained leave to raise the new points, the respondents cannot successfully raise the points in this appeal and I so hold.’
Particulars of Error
i. Where fresh point/points or question/questions involve substantial point of law, substantive or procedural, and it is plain that no further evidence need be adduced which would affect the decision on the matter, the appellate court will allow the question to be raised and the point taken to prevent a miscarriage of justice.
ii. The points of law raised in the 1st – 4th respondents/appellants (sic: plaintiffs/appellants’) notice of appeal in the Court of Appeal Benin City disclose ex-facie that the High Court has no jurisdiction.
iii. All the materials necessary for the determination of the point(s) of law raised before the Court of Appeal Benin City are present in the records of the court.”
It is doubtful if issue 4 was formulated from this ground. If it was, then it is not encompassed by the ground in any sense. There is nothing in the said ground of appeal suggesting that a respondent’s notice on the issue of jurisdiction was filed and that the Court of Appeal failed to regard it as equivalent to a notice of appeal.
That is what issue 4 raises. It seems the issue was thus argued without a supporting ground of appeal. The consequence is well established that both the issue and the argument founded on it ought to be discountenanced by the court: see Nwosu v. Udeaja (1990) I NWLR (Pt.l25) 188; Ogbuanyiya v. Okudo (No.2) (1990) 4 NWLR (Pt.146) 551; Momodu v. MOmoh (1991) 1 NWLR (pt.l69) 608. I would accordingly strike out issue 4 and discountenance the argument based on it. The facts of this appeal have been stated as deemed necessary in the narrative given thus far of the proceedings in the two courts below. I may add a little more and recount some before proceeding to resolve the single issue for reaching a decision on this appeal. The respondent in his amended statement of claim has averred how he felt aggrieved on the 1st appellant being appointed the Osemawe of Ondo. He has pleaded in paragraphs I and 3 that he is a Prince of the Leyo Aroworayi Ruling House and that the 2nd, 3rd and 4th appellants are kingmakers of Ondo. These are admitted in paragraph I of the amended statement of defence of the 1st defendant/appellant. The averment in para. 2 that the 1st appellant is not a Prince of the said Ruling House but an Otunba is denied in the statement of defence, claiming in para. 3 and related paras, thereof that he is a prince of the full blood. I refer to paras. 5 and 12 of the amended statement of claim. Para. 5 is simply admitted in para. 1 of the amended statement of defence. Para. 12 is only partially denied. The said paras. 5 and 12 read:
“5. Sometime about August 1991, His Royal Highness Oba Itiade Adekolurejo joined his ancestors and as a result a vacancy existed for the throne of Osemawe of Ondo.
- Notwithstanding the various protests and in breach of tradition and the law, the 2nd to 4th defendants purported to appoint the 1st defendant as the Osemawe for the approval of the 5th defendant’s principal Executive Council on the 11th of October, 1991.”
As I said, para. 5 is simply an admission without more but para. 12 is answered thus:
“24. With regard to paragraph 12 of the statement of claim, the 1st defendant avers that he was not, and still not, aware of any written protest by plaintiff against his candidature and none up till now has been brought to his notice.”
It will be observed that the aspect of para. 12 above that says approval was given to the 1st appellant’s appointment as Osemawe by the Executive Council of Ondo State Government on 11 October, 1991 is not denied. That is accordingly deemed admitted and the relevance of this shall be shown later. On the whole the respondent’s grievance is that the 1st appellant was not entitled to be nominated for, and consequently was wrongly appointed to, the position of Osemawe of Ondo thereby depriving him (the respondent) his chance of being so appointed.
In dealing with the issue as identified above, it is necessary to refer at this early stage to the provisions of Edict No. 2 of 1992, which Edict was published by Gazette on 16 January, 1992 and governs the subject-matter of this case.
The Edict reads:
“An Edict to make provisions for the approval of appointment of an Oba, presentation of instrument of appointment and Staff of Office and to make further provisions incidental thereto or connected therewith.
(23rd December, 1991)
The Military Governor of Ondo State of Nigeria hereby makes this Edict as follows:
I. Any person who is aggrieved by the appointment of another person as an Oba shall within seven days of the date of such appointment institute action in the High Court challenging the appointment.
2.(1) Any person who intends to institute an action against or challenge such appointment shall give security for-
(a) a sum of twenty-five thousand Naira in respect of such action instituted against the appointment in any government headquarters; or
(b) a sum of ten thousand Naira in respect of such action instituted against the appointment in towns other than local government headquarters.
(2) Any security given in pursuance of sub-section (1) of this section shall be paid into the High Court at the same time the necessary court processes are filed.
- The appointment of a person as an Oba is deemed to have been completed on the date of approval of the appointment by the Executive Council in accordance with the provisions of the Chiefs Edict.
- Notwithstanding that the appointment of a person as an Oba has been approved by the Executive Council but that such person so appointed is not or has not been presented with the instrument of appointment or staff of office in respect thereof such person shall function as such and have all the rights and privileges of an Oba.
- In this Edict unless the con otherwise requires: “date of approval” means the date the Executive Council takes the decision to approve the appointment of the person presented by the Kingmakers for approval as an Oba.
- This Edict may be cited as the Approval of Appointment of an Oba and presentation of instrument of Appointment and Staff of Office Edict, 1991 and shall be deemed to have come into force on the 23rd December, 1991.
Made at Akure this 23rd day of December, 1991.”
[Emphasis by me]
The commencement date of 23 December, 1991 was altered subsequently by Ondo State of Nigeria Official Gazette No.6 vol. 19 dated 10 February, 1994, as Ondo State Notice 10, to read 3 January, 1984. That was the day the Military Government of Ondo State was inaugurated.
It has been submitted by learned counsel for the appellants that the Edict was given a retrospective effect, and that by Section 2 thereof a new obligation was thereby created imposing certain conditions precedent for the filing of an action to challenge the appointment of an Oba. He has said further that whatever was the existing vested right in or accruing to the respondent prior to the promulgation of the Edict had by the clear and unambiguous terms of the Edict been “impaired if not completely taken away.” He insists that the new obligation must be complied with and that the suit having been struck out for non-compliance, the respondent should have “subsequently taken step to comply with the condition precedent when filing a fresh suit”, adding that a right to file such a fresh suit was not taken away by the Edict.
Learned counsel did not allude to the other condition precedent (apart from the giving of security for the N25,000.00)which by Ss.1 & 3 of the Edict requires that the action must be instituted within seven days from the date approval was given to the appointment of an Oba by the State Executive Council. So it would appear that learned counsel’s contention that a fresh action could be subsequently filed upon steps being taken to comply with the condition precedent when indeed no discretion was allowed for extending the time for compliance, does not help matters at all. The giving of security and the filing of the suit must take place within the said seven days and at the same time. It means, if the contention is right, the respondent should have complied with those conditions, even before the Edict was enacted, at the time he filed his suit. That would appeal to be beyond human endeavour going by the terms of the Edict whose commencement date was subsequently made retrospective after the event and also the circumstances of this case. Yet learned counsel has pressed that the lower court was bound to give effect to the Edict and that it lacked the power to derogate from it “whatever its consequences might be,” I think learned counsel might not have realised the full implication of his insistence on an inflexible or even oppressive retrospective application of the Edict, particularly when he went further to say: “It is submitted that since the commencement date of the Edict No.2 of 1992 is 3rd January, 1984 relating back to the main Edict No. 11 of 1984 it must have application to all suits instituted after 1984 with all the attendant effect attached to a retrospective legislation.” One is compelled to ask whether that effect would attach to concluded actions whose decisions might have been implemented – maybe long since – at a time the present conditions precedent did not exist or were perhaps not even contemplated
Learned counsel for the respondent submits to the contrary in regard to Ss.1 and 2 of Edict NO.2 of 1992. He says the provisions of those sections cannot be regarded as constituting conditions precedent to the respondent’s action in question as it is his contention that those sections contemplate the said conditions precedent for future actions and not past ones. In other words, the sections speak of the future and not the past, a conclusion reached by the lower court. Learned counsel’s argument essentially is that the language of Ss.1 and 2 of the said Edict must be read against the background of the circumstances it is meant to apply to, and if so read, those conditions precedent cannot be read retrospectively. I find powerful force in these submissions of respondent’s counsel.
I think I can begin by stating the general principles in regard to retrospective operation of statutes. One is based on the presumption that the legislature does not intend what is unjust and therefore the courts lean against giving certain statutes retrospective operation. They are construed as operating only in cases or on facts which come into existence after the statutes were passed unless a retrospective effect is clearly intended: see Maxwell on Interpretation of Statutes, 12th edn., page 215. Another related principle to the same effect is that it is a fundamental rule of law in our legal system that although it is competent for the legislature to make retrospective laws, no statute should be construed to have a retrospective operation unless the terms of the statute say so in clear and unequivocal language: see Pardo v. Bingham (1870) L.R.4 Ch. App. 735 at 739; Lauri v. Renad (1892) 3 Ch.402 at 421; Afolabi v. Governor, Oyo State (1985) 2 NWLR (Pt.9) 734 at 752 – 753 per Aniagolu J.S.C.
There are other principles some of which can be said to relate to factual situations or certain peculiar circumstances as will be obvious from some of the cases I shall consider. There is no dispute that the legislature has the authority and competence to make retrospective legislation within the Constitution which allocates legislative functions to it. The retrospective nature may be partial or total, merely procedural in the real sense or substantive: see Smith v. Callander (1901) A.C. 297 at 305; Ibrahim v. Barde (1996) 9 NWLR (pt.474) 513 at 577. But it should be emphasised that an interpretation giving a retrospective effect to a statute’ should not be readily accepted where that would affect vested rights or impose liability or disqualification for past events: see West v. Gwynne (1911) 2 Ch.1; Afolabi v. Governor of Oyo State (supra).
Thus in In re Athlumney (1898) 2 Q.B.547, a debt, including interest above 5 per cent was proved under a scheme adopted and approved by the Court. At a later date the Bankruptcy Act, 1890 was passed. Section 23 of the Act provided that:
“Where a debt has been proved upon a debtor’s estate under the principal Act, and such debt includes interest, or any pecuniary consideration in lieu of interest, such interest or consideration shall, for the purposes of dividend, be calculated at a rate not exceeding five percent per annum, without prejudice to the right of a creditor to receive out of the estate any higher rate of interest to which he may be entitled after all the debts proved in the estate have been paid in full.”
This act seemed to have introduced a new element capable of upsetting the concluded scheme between the parties.
It is without doubt that the provisions of the Act recited above could be interpreted prospectively to confer a right to interest higher than 5 percent on a creditor and impose a corresponding liability on a debtor despite the scheme of arrangement made between both parties and approved by the court before the date of the passing of the Act. A retrospective interpretation which was possible, would have an opposite effect. Indeed, counsel for the creditor acknowledged the possibility of either interpretations but argued that a retrospective interpretation would be to the detriment of the creditor. On the other hand counsel for the debtor argued to the contrary saying that the grammatical meaning of the words “where a debt has been proved” made the effect of the Act reasonably retrospective.
But it was held that the said S.23 was not to be interpreted retrospectively in its operation, and so did not apply to a debt including an interest above 5 percent proved under a scheme approved by the Court before the date of the passing of the Act. In a carefully considered judgment, Wright J. stated the general rule against a retrospective operation of a statute which impaired an existing right or obligation but a prospective operation unless so provided by the statute on clear and unambiguous terms; but that if the statute was expressed in language which was fairly capable of either interpretations, it ought to be construed as prospective only, citing such cases as Main v. Stark ( 1890) 15App.Cas. 384 at 387 per Lord Selbourne; Gilmore v. Shuter (1677) 2 Mod. 310 on the Statute of Frauds; Moon v. Durden (1848)2 EX.220n the Gaming Acts; In re Joseph Suche & Co. Ltd. (1875) 1 Ch.D.48 on s.10 of the Judicature Act, 1875; and Hickson v. Darlow (1883) 23 Ch.D 690 on the Bills of Sale Acts. The learned judge then made the following very relevant observation at page 553:
“In the present case the enactment does not merely affect procedure. If the section is construed retrospectively, it will postpone the creditor’s right of dividend beyond 5 percent., and will pro tanto deprive him of the vested right of action which he possessed at the commencement of the Act and when the bankruptcy occurred. Then is the section so expressed as to be plainly retrospective No doubt the words ‘where a debt has been proved under the principal Act’ are capable of such a meaning. But this form of words is often used to refer, not to a past time which preceded the enactment, but to a time which is made past by anticipation – a time which will have
become a past time only when the event occurs on which the statute is to operate.”
I respectfully commend and endorse this observation. It has a close correlation with the facts and circumstances of the present case. If I may say so,, ln re Athlumney (supra) and West v. Gwynne (supra) were considered and approved in Afolabi v. Governor of Oyo State (supra) by this court.
It is common ground that the 1st appellant’s appointment as the Osemawe of Ondo was approved by the State Executive Council on 11 October, 1991. That was before Edict No.2 of 1992 was passed on 23 December, 1991 though later made effective from 3 January, 1984. The respondent felt legally aggrieved from that date of 11 October, 1991 because that was the date Ss.3 and 4 of the Edict give him a cause of action. Put differently, his cause of action arose on that date; and the law as existed permitted him to go to court without giving security for any amount. He brought his action on 14th October, 1991, some three days after his cause of action arose under the Edict although it had already ordinarily arisen before and aside from the Edict. Now ss.1 of the said Edict begins by saying “Any person who is aggrieved by the appointment of another person as an Oba shall within seven days of the date of such appointment institute action … ” But this provision was not infact enacted until 23rd December, 1991, well after the respondent’s cause of action arose.
The seven days within which to bring such action had long elapsed. The said period of seven days was also tied to the provision in s.2(1)(a) which requires that security for an amount be given at the same time of instituting the action. The provisions in question had become futuristic as far as the circumstances of the respondent were concerned. Although the commencement date tended to make the Edict roll back to 1984, surely the form of words used in Ss.1 and 2 refers “not to a past time which preceded the enactment (Edict) but to a time which is made past by anticipation – a time which will have become a past time only when the event occurs on which the statute is to operate” to borrow the classic words of Wright J. In essence those words considered from a past event before they were enacted must be seen to look to a future event of “any person who is aggrieved” [5.1] and “any person who intends to institute an action” [S.2(1)] to complain against an appointment approved under an Edict made on a future date from that past event.
In the case of Re Joseph Suche & Co Ltd. (1875) I Ch. D.48, the provisions of S.10 of the Judicature Act, 1875 directed that in the winding-up of any company whose assets may prove insufficient for the payment of its debts the same rules shall be observed as may be in force under the law of bankruptcy. The words appearing at the end of the relevant Section 10 of the said Judicature Act were that interested creditors “may come in under the winding-up of such company, and make such claims against the same as they may be respectively entitled to by virtue of this Act.” But the action was brought before the commencement of the Act. It was there laid down by Jessel M.R. at page 50 that it is a general rule that when the legislature alters the rights of parties by taking away or conferring any right of action, its enactments do not affect pending actions unless in express terms. It was therefore held that S.10 of the Judicature Act, 1875, was not retrospective and did not apply to the case of a winding-up of a company brought before the commencement of the Act.
In Afolabi v. Governor of Oyo State (supra), Eso J.S.C. said at page 768: “In my view the law has always been that unless a contrary intention is expressed there is a presumption that an enactment has no retrospective operation. The principle is ‘lexprospicit non respicit’ that is the law looks forward and not back: see Jenk Cent 284; see also 2 Co. Inst.292.”
He cited at pages 768-769 Wills J’s observation in Phillips v. Eyre (1870) L.R. 6 Q.B. I at 23 in respect of retrospective legislation, that it is-
“contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought. when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law.”
The learned Justice then observed:
“I think, with respect, this accords with commonsense for retrospectivity is entirely artificial. It deems (and deems is used advisedly) a thing to be what it is not. It is a make belief (sic: believe). It is false. It is repugnant to law, for after all law is just a servant of human welfare. It should never be its master. See Carson v. Carson 1964 I WLR. 511 at 516.”
I think this adequately reflects what I have attempted to draw attention to in regard to the consequences or even the futility of giving a retrospective effect to Edict No. 2 of 1992.
In Babatunde v. Governor, Western Region of Nigeria (1960) I NSCC 41, reported also in Ajagunna II v. The Governor, Western Region of Nigeria (1960) SCNLR 153, In re Joseph Suche & Co. Ltd. (supra) was cited and Jessel M.R. ‘s observation at p. 50 was quoted with approval by the Federal Supreme Court per Hubbard, Ag. FJ. at p. 155. In that case, the appellant who was deposed as the Olukare of Ikare commenced action by way of certiorari to have the appointment of his replacement quashed. The Administration of Justice (Crown Proceedings) Law, 1959 was subsequently passed before the appellant’s appeal came on for hearing. That Law took away the jurisdiction of the High Court in the cause. It was argued that that consequently affected the appellant’s right to pursue his appeal. It was held that the action having been started before the jurisdiction of the High Court was precluded, the appellant was entitled to have his appeal heard and determined because the enactments of the legislature altering the rights of parties and taking away or conferring any right of action do not apply to pending actions unless any enactment expressly said so. See also Government of Midwest State v. Mid-Motors Nigeria Co. Ltd. (1977) 10 SC 43 at 55 – 56: (1977) 11 NSCC 429 at 437 – 438; and Uwaifo v. Attorney-General, Bendel State (1982) NSCC (voU3 221; (1983) 4NCLR I where it was held in both cases that the obligations and rights of parties must be considered in the light of the law at the time when the cause of action arises. That also entails that the procedure in force at the time action was brought if eventually altered does not affect the competency of the action.
It may be useful to give other instances to show the attitude towards retrospective interpretation of statutes in respect of those which seem to be a genre of retrospective legislation. In Reid v. Reid (1886) 31 Ch. DA02, Bowen LJ. observed that except in special cases a new law should be construed so as to interfere as little as possible with vested rights, and added at page 408-409:
“It seems to me that even in construing an Act which is to a certain extent retrospective, and in construing a section which is to some extent retrospective, we ought nevertheless to bear in mind that maxim as applicable whenever we reach the line at which the words of the section cease to be plain. That is a necessary and logical corollary of the general proposition that you ought not to give a larger retrospective power to a section, even in an Act which is to some extent intended to be retrospective, than you can plainly see the Legislature meant.”
More specifically is the case of In re a Solicitor’s Clerk (1957) I W.L.R. 1219. The Solicitor’s Act, 1941 S.16 provided interalia that:
“Where a person who is or was clerk to a Solicitor … has been convicted of larceny … or any other criminal offence in respect of any money or property belonging to or held or controlled by the solicitor … an application may be made ….. that an order be made directing that ….. no solicitor shall … take or retain the said person into or in his employment.”
It can be seen that this provision applied only when what the solicitor’s clerk was convicted of stealing was his employer’s or the employer’s client’s property. The Actof 1941 was amended in 1956 by S.11(I) of the Solicitors (Amendment) Act, 1956 to apply where a clerk had been convicted of larceny of any property irrespective of whether it belonged to his employer or one of his clients; in other words, larceny of any person’s property. The intention could well be to ensure that Solicitors’ clerks are persons of honest character in any event.
The appellant had been convicted of larceny in 1953 of property which belonged neither to his employer nor to a client of his. It was sought to have an order made against him going by the Amendment Act of 1956. So the question that then arose was whether the amendment introduced by the 1956 Act should be made to operate retrospectively against the appellant. Under the 1941 Act as it stood an order could not be made against him. On this point, Lord Goddard C.J. observed at page 1222- 1223:
“…… in my opinion this Act is not in truth retrospective. It enables an order to be made disqualifying a person from acting as a solicitor’s clerk in the future and what happened in the past is the cause or reason for the making of the order, but the order has no retrospective effect … This Act simply enables a disqualification to be imposed for the future which in no way affects anything done by the appellant in the past.”
See also In re Pulborough Parish School Board Election (1894) 1 Q.B. 725 where it was held that an undischarged bankrupt before the Bankruptcy Act, 1883 which created disqualifications for that status was not affected by those disqualifications which did not exist at the time he was declared a bankrupt. Another relevant authority on this aspect of my consideration of this appeal, is Young v. Adams (1898) A.C. 469. In that case, the statute upon which a decision was reached was the Public Service Act 1895 otherwise known as the New South Wales Act together with the Civil Service Act of 1884. It was passed on 23 December, 1895, five months after the summary dismissal of the respondent. Section 58 provided that:
“Nothing in this Act or in the Civil Service Act of 1884 shall be construed or held to abrogate and restrict the right of the Crown as it existed before the passing of the Civil Service Act to dispense with the services of any person employed in the public service.”
The respondent who had been dismissed from the public service before the said Act came into operation, but not in the manner prescribed by the Civil Service Act of 1884, had gone to court to claim damages for wrongful dismissal. The question was whether the 1895 Act had retrospective effect so as to validate the dismissal of the respondent which had not been done in accordance with the Act of 1884 which was the law in operation then. That Act had earlier been held in Gould v. Stuart (1896) A.c. 575 to have restricted the power generally possessed by the Crown to dismiss a Civil officer at pleasure and that the Government had no power to dismiss a Civil servant, except upon the grounds, after due inquiry, which that Act prescribed. The Judicial Committee of the Privy Council per Lord Watson therefore held that the language of S.58 was such that it had reference only to persons who were actually employed in the service at and after the date of the Act of 1895 and did not extend to persons who had ceased to be employed in the public service before the date of the Act. In other words, that it could not be given retrospective interpretation to convert an act wrongfully done at the time into a legal act, and to deprive the person injured of the remedy which the law gave him at the time.
In the present case, the commencement date of the Edict having been stated to be deemed to be 3 January, 1984 by virtue of S.6 thereof, it has a semblance that it was given a retrospective effect. But that fact does not displace the necessary implication of the words of the Edict. It was on this basis I think, that Mahmud Mohammed J.C.A., after reciting the provisions of the said S.6, observed as reported in Adewole v. Adesanoye (supra) at page 199 as follows:
“The Edict was intended to have retrospective effect. However, taking into consideration the plain language of Sections 1 and 2 of the Edict which created a right of action and the condition for the exercise of that right, was it the intention of the law makers that the provisions of those sections which are only incidental to the main purpose of the Edict, should have retrospective effect as well
Looking at the provision of Section 1, the right of action has just been created. Therefore there can be no question of the possibility of exercising that right before it came into being. The right to file an action is only exercisable from the date of the creation of the right of action by the Edict not in the past.”
Apart from saying that, in my view, there may be no need to draw a distinction between the main and incidental provisions of the Edict in order to give them the proper interpretation in this present case, I agree with the observation made by the learned Justice of the Court of Appeal.
The provisions of Ss.1 and 2 are not to be taken as mere procedural requirements when considered in connection with the circumstances of the respondent. They are fundamental and would certainly affect his substantive rights in regard to his suit which he had already commenced. I think Attorney-General v. Vernazza (1960) AC 965; (1960) 3 All ER 97, which the learned trial judge relied on presents a case study as to the real principle it sought to establish in relation to retrospective legislations. Let me state the relevant facts briefly. Mr. Vernazza, the respondent, was a vexatious litigant; so much so that the Attorney-General applied to the High Court for an order under the Supreme Court of Judicature (Consolidation) Act, 1925, to prohibit him instituting proceedings without the leave of the High Court. On 9 April, 1959, the order was made. At that date the High Court had no authority to prohibit him from continuing proceedings which he had already started. Buton 14 May, 1959, a new Act was passed as Supreme Court of Judicature (Amendment) Act, 1959, which enable the court not only to prohibit the institution of new proceedings without leave, but also to prohibit the continuance of existing proceedings without leave.
A week later, on 21 May, 1959, the respondent appealed to the Court of Appeal against the original order made against him. On 2 December, 1959, his appeal was dismissed. But the Attorney-General by across-notice sought from the Court of Appeal a further order under the new Act prohibiting the respondent from continuing his existing proceedings. They refused to make this further order saying they had no power to do so apparently on the basis that it was a retrospective Act which affected existing rights.
This was what the House of Lords had to consider as to whether in fact existing rights were involved here. It was in the course of resolving this that Lord Denning observed s follows at (1960) A.C. p. 977; (1960) 3 All ER. pp. 100-101:
“If the new Act affects Mr. Vernazza’s substantive rights, it will not be held to apply to proceedings which have already commenced, unless a clear intention to that effect is manifested: see Colonial Sugar Refining Co. v. Irving (1905) A.C. 369. But if the new act affects matters of procedure only, then, prima facie, it applies to all actions, pending as well as future; for, as Lord Blackburn said:
‘Alterations in form of procedure are always retrospective, unless there is some good reason or other why they should not be’.
see Gardner v. Lucas (1878) 3 App. Cas. at 603. The Court of Appeal seem to have thought that the new Act affects Mr. Vernazza’ s substantive right to carryon his pending proceedings; and that it ought not to be given a retrospective operation. I cannot, I am afraid, share this view. The new Act does not prevent the respondent from continuing proceedings which it is proper for him to carry on. It only prevents him from continuing proceedings which are an abuse of the process of the court. If the proceedings are not an abuse and he has prima facie grounds for them, then he will be given leave to continue them. This is no interference with a substantive right. The courts of this country have an inherent power to prevent the abuse of legal machinery which would occur, if for no possible benefit the defendants are to be dragged through litigation and which must be long and expensive’.
see Wills v. Earl Beauchamp (1886) II PD. at63, by Bowen, LJ.; and when the courts of this country exercise this power, they are not depriving a man of a vested right. They are only exercising a control over their own procedure. No man, let alone a vexatious litigant, has a vested right to bring or continue proceedings which are an abuse of the process of the court.”
It is true Lord Denning immediately added that even if the new Act did affect substantive rights, he thought there were clear words in the Act which showed that parliament intended it to be retrospective against a vexatious litigant’s pending action. The Act indeed provided the High Court with powers to make an order against such litigant “that any legal proceedings instituted by him in any court before the making of the order shall not be continued by him without such leave.”
I must say, however, that the earlier observation of Lord Denning reproduced above clearly shows that the Act merely gave statutory force to the already existing inherent power of the courts to prevent the abuse of the legal process. As pointed out no one has a substantive or vested right to bring or continue proceedings which are an abuse of the process of the court; and this abuse the courts had power of their own to check procedurally. Hence Viscount Simonds in the same case said (1960) A.C. at 975 (1960) 3 All ER at 99, that the new power given to the court by the amending Act was merely of a procedural nature which provided new remedies against abuse of court process rather than that which affected substantive rights. He added, “It would, I think, be wrong to say that a man was deprived of a vested or substantive right, if it was still open to him to prosecute any claim which was not an abuse of process and for which there was a prima facie case.” In the present case before us, it would not be open to the respondent to prosecute his claim if the provisions of the Edict were given retrospective operation thereby conclusively depriving him of his vested or substantive right to approach the court upon a cause of action which had enured to him and which he was then at liberty to pursue without the pre conditions later imposed. So it was not merely some procedural requirement he could still fulfil.
As to the second part of Lord Denning’s observation in which he referred to the express words of the Act in question and came to the conclusion that Parliament intended it to be retrospective, it is plain from those words that the intention of parliament was clear. It was not just a question of back-dating the commencement date of the Act; express words were used to define the powers conferred upon the High Court in regard to making orders affecting pending legal proceedings. But also to be taken into account is that the right to continue such legal proceedings was not completely obliterated or rendered impossible so long as there was prima facie ground for continuing them. In that sense no interpretation of those express words can be seen as intended to defeat existing rights.
Instructively, in the present case, a retrospective interpretation will not only make it impossible for the respondent to comply with the so-called conditions precedent, it will also clearly destroy and defeat his vested right of action. The effect of creating an impossibility through a retrospective operation of a statute passed after a given act had been done with the intention to regulate the doing of that act was considered in Hickson v. Darlow (1883) 23 Ch.D. 690. In that case the Bills of Sale Amendment Act, 1882, S.8, provided that every bill of sale shall be registered under the principal Act within seven clear days after execution thereof, otherwise such bill of sale shall be void in respect of the personal chattels comprised therein. The bill of sale was executed on 5 October, 1882, before the Act came into operation on November 1, 1882, a period of some 27 days in between. It was sought to have the bill declared void not having been registered even though there was no such provision as to registration under the principal Act. When the matter came on appeal, Jessel M.R. said at page 694:
“It is, in our opinion, clear that the Act 45 & 46 Vict. C43 S.8 does nor apply to the present bill of sale. It appears to us impossible to read it as so applying, for it enacts that a bill of sale shall be registered within seven days after its execution. But the bill of sale in the present case was executed more than seven clear days before the Act came into operation, so that to read itas applying to this bill of sale would be making it enact an impossibility.”
I think this accords with both common sense and the logic of justice. That authority is on all fours with the present case and it seems to me clear that such is the manner the present case should be regarded. It is not only that it would be impossible for the respondent to comply with the provisions of ss.1 and 2 of the Edict since the action had been filed before the Edict was passed imposing conditions to be met in filing such action, which in the case of the respondent turned out to be ex post facto, but also no room in any manner can be found to have been allowed therein for later compliance with leave of court in case the respondent wanted to do that. In addition, as this court was reminded by the uncompromising aspect of the appellants’ counsel’s submission already referred to in this judgment, such a retrospective interpretation would affect and destroy vested rights derived from decisions earlier reached even right from January, 1984 as a result of the incompetence that would then attach to the proceedings conducted without compliance with what would now be fundamental conditions. The decisions would therefore be a nullity and their execution void. There would in consequence be chaos similar to circumstances of a serious disturbance of law and order. It cannot be imagined that the legislature whose constitutional role is to make laws for peace, order and good government would have intended, much less been prepared for, such pernicious results. There is always a presumption against such an intention. As Scrutton LJ. said in Wardv. British Oak Insurance Co. Ltd. (1932) 1 K.B. 392 at 397:
“Prima facie an Act deals with future and not with past events. If this were not so the Act might annul rights already acquired, while the presumption is against the intention.”
I must come to the conclusion that Ss.1 and 2 of Edict No.2 of 1992 could not properly be given a retrospective effect so as to defeat the vested or substantive right of action in the respondent prevailing at the time he filed this suit. The lower court was right in the interpretation it gave to those sections as regards their effect on the respondent’s suit. The respondent was not expected to and could not possibly be bound by the new conditions precedent for filing an action after he had commenced his suit without completely losing his vested or substantive right to sue. Accordingly, I find no merit whatsoever in this appeal and therefore dismiss it. I affirm the judgment of the lower court together with the consequential order given on 8 December, 1997, and award costs of N10,000.00 against the appellants in favour of the respondent.
SC.36/1998
