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.