Gamu Yare (Chun Mada) V. Alhaji Adamu Nunku & Ors (1995)
LAWGLOBAL HUB Lead Judgment Report
OGUNDARE, J.S.C.
The appellant was appointed the Chun Mada of Mada in Plateau State on the recommendation of the 4th, 5th and 6th defendants; the appointment was approved by the then Military Governor of Plateau State. Pleadings having been ordered were duly filed and exchanged; all the six defendants filed a joint statement of defence. Thereafter, the 1st defendant who is now the appellant before us filed a motion praying the court of trial, that is, the High Court of Justice of Plateau State for the following orders:
“(i) An order granting leave to set aside the service of Amended Writ of Summons dated 16/10/90, Statement of Claim dated 29/10/90 and Motion on Notice dated 5/11/90 as same were personally served on the 1st defendant on Saturday 17/11/90, being a public Holiday.
(ii) An order granting leave to strike out the suit for lack of jurisdiction.
(iii) An order granting leave to dismiss the suit for being statute barred.
(iv) And for such other order or orders as this Honourable Court may deem fit to make in the circumstances.”
The application was heard by Naron J. and in a ruling delivered on 19/4/91 he found: “I am constrained to observe that the submission of Mr. Akubo that the applicable law in this part of the country on limitation of action is the 1625 English Limitation Act is not only perverse but intriguing and strange. With the coming into effect of Decree No. 88 of 1966, the Limitation Act, 1623 became dead, buried and to rise no more. However, careful perusal of the Decree reveals that it is of no application to the present action. We are therefore, left with the Plateau State Limitation Edict, 1988, sections 18, 42 and 44 of which are relevant to the instant case.
It is further, the submission of Mr. Akubo that the 1st defendant having not been installed, is not entitled to any protection under the Public Officers (protection) Law. There is no premise for this submission. A person elected or selected into the office of Chun Mada does not require any installation to become a Public Officer. All that are vital to his becoming a Public Officer are the approval and endorsement of the Plateau State Council of Chiefs and the Governor respectively.
The installation is a mere formal handing over of staff of office to the officer duly elected or selected. The Public Officers (Protection) Law provides for the protection against actions of persons acting in the execution of public duties. There is nothing which would necessitate the exclusion of the Plateau State Government or any of its agents from application of the law. The office of the Chun Mada was created in 1980 and has remained so ever since. The 1st defendant though elected/selected on the 6th June, 1990 is merely performing the functions of an office which came into existence in 1980 and is covered by the provisions of the law.”
He concluded thus:
“Having failed to challenge the Law which was an infunction on their rights within three months (as required by the Public Officers (Protection Law) or five years in accordance with the Limitation Edict, 1988, when the cause of action arose in 1980, cannot be heard now to challenge the law, as such action is statute barred.”
I do not agree with Mr. Akubo that the cause of action arose only in 1990 when the 1st defendant was elected or selected or elected; their inaction cannot be visited on the 1st defendant. What if the last incumbent had not passed away
The sum total of all these, is that the preliminary objection succeeds. The action is statute barred and is hereby struck out.”
Being dissatisfied with this decision the plaintiffs (who are now respondents before us) appealed to the Court of Appeal (Jos Division). The Court of Appeal after hearing arguments allowed the appeal. Mukhtar J.C.A. in a lead judgment of the court, after citing section (1) of the Limitation Edict No. 16 of 1988 of Plateau State, and section 4(2) and (3) of Decree No.1 titled Constitution (Suspension and Modification) Decree 1984 observed:
“The case of Military Governor Ondo State v. Adewumi (1988) 3 NWLR (Pt.82) page 200 relied upon by learned counsel for the appellants, is relevant to this issue. I am of the view that the interpretation Law and S.4(2) of Decree No.1 of 1984 supra is very clear and of assistance to the intent of the limitation Edict supra. It is not applicable to the present case, and the learned trial Judge was wrong to have applied it to strike out the appellant’s case as he did. Ground of appeal No. (1) supra married to the issue discussed succeeds.”
On the question of Public Officers (Protection) Law the learned Justice of Appeal observed:
“I have read carefully the pleading of the appellant, and my view is that on the face of their claim and averments therein the 1st respondent is not a Public Officer. Even if he will be, he is not as yet for it is the very action that may have resulted in his being a public servant that is being challenged by the appellant. It is the very process and machinery that is adopted and which will lead to his being made a Chun Mada that is the bone of contention. I am therefore of the view that the protection of S.3 of the Protection of Public Officers Law is not available to the 1st respondent. Ground No. (2) of appeal supra which the above issue relates thus succeeds.”
It is against this decision that the 1st defendant has appealed to this court and, in his Brief of Argument set out the following as the issues arising for determination
“1. Whether the appellant is a public officer having been duly elected and or selected by the Mada Kingmakers, and confirmed by the Plateau State Government, but failure to formally install him, as the Chun Mada prevents the appellant from availing himself to the provisions of section 2(a) of the public officer protection Law, of Northern Nigeria, 1963
- Whether failure to gazette Edict No.I6 of 1988, by Plateau State Attorney-General renders the said Edict, a nullity
Issue 1: Section 2(a) of the Public Officers (Protection) Law Cap. 111 provides:
“2 Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any law or 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, the following provisions shall have effect –
(a) The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury within three months next after the ceasing thereof:”
The proviso is not relevant to this judgment. To avail the defendant, a complaint against him must be in respect of any act done by him in pursuance or execution or intended execution of any law or of any public duty or in respect of any alledged neglect or default in the execution of such law or duty.
I have given careful consideration to the submissions of learned counsel to the parties in their respective Briefs and their oral submissions before this court.
By paragraph 71 of their Statement of Claim the plaintiffs claimed as hereunder:
“(1). A Declaration that the appointment and Deposition of Chiefs (Appointment of Chun Mada) (Amendment) Order, 1980 Vide P.S.L.N.N. 3 of 1980 is null and void being an unwarranted infraction on the cherished custom and tradition of Mada Chieftaincy Institution.
(2) A Declaration that the purported appointment, selection, election and/or approval of the 1st defendant as the Chun Mada on or about 6/6/90 is illegal, irregular, a gross violation of the native law and custom respecting the Mada Chieftaincy Institution established by Nzoja Royal Family; null, void and of no effect on the ground that:
(a) The purported appointment, election or selection was vitiated by manifest irregularities such as improper constitution of the kingmakers or college of selectors.
(b) the purported appointment, election or selection was prearranged, secretly conducted and not witnessed in accordance with the law.
(c) the purported appointment, election and selection was done in bad faith calculated to frustrate and impugn on the supremacy of the Nzoja Royal Family.
(d) the purported appointment, election or selection was done to defeat the purpose, legendary practice and procedure governing the Mada Chieftaincy Institution.
(e) necessary and imperative procedures were not followed.
(f) the Panel of Traditional Selectors or kingmakers was irregular and improperly constituted.
(3) A declaration that the said Mr. Gamu Yare the 1st defendant herein is not qualified for appointment to the throne of Mada Chieftaincy stool on the ground that he is not a member of the Nzoja Family.
(4) A perpetual Injunction restraining Mr. Gamu Yare, his agents or privies or whosoever and howsoever from parading himself or being paraded or held out as the Chun Mada or Chief of Mada for that matter, and also an order of injunction restraining the 2nd, 3rd, 4th, 5th and 6th defendants from recommending, approving and or installing the 1st defendant as the Chun Mada.
(5) A consequential order directing that the 2nd, 3rd, 4th, 5th and 6th defendants allow the Nzoja Royal Family through the plaintiffs to nominate, and/or conduct necessary selection process for the office of Chief Mada from within that family vide approved college of selectors.
(6) Cost of this action
(7) Further and other consequential reliefs that may be necessary.”
None of the above claims complained of any act done by the 1st defendant or of any neglect or default in pursuance or execution or intended execution of any law or of any public duty. Consequently the court below is perfectly right in concluding that the Public Officers (protection) Law does not avail the 1st defendant in this case. I find it unnecessary to consider and determine whether or not he is a public officer since in any event, the law will not affect him in respect of the claims brought by the plaintiffs.
2nd Issue: It is submitted in the appellant’s Brief as follows:
“6. It is our humble submission and contention that failure (if any) by the Plateau State Attorney-General to Gazette Edict No. 16 of 1988, does not in law render the said Edict a nullity.”
This submission clearly beclouds the issue before the court. It is not being contended by either party that the Limitation Edict No.16 (of 1988) of Plateau State is a nullity. The question is whether the Edict has come into force at the time of this action. Section 1 of the Edict states:
“This Edict may be cited as the Limitation Edict, 1987 and shall come into operation on such a day as the Attorney-General may appoint by order published in Gazette.”
It is conceeded by the 1st defendant that the Attorney-General of Plateau State had not, as at the time of this action, published on the State Gazette any order bringing the Edict into operation on a particular day. The position in law then is that the Edict, though it exists, had however, not yet come into force and can, therefore, not be applied until the Attorney-General of the State has by an order published in the State Gazette brought it into force. This is borne out by the provisions of section 4(2) of the Constitution (Suspension and Modification) Decree No.1 of 1984 which states:
“An edict is made when it is signed by the Military Governor (now Military Administrator) of the State to which it applies whether or not it then comes into force.” (Italics is mine for emphasis)
Sub-section 3 of the same section 4 provides:
“Where no other provision is made as to the time when the particular provision contained in a decree, edict or subsidiary instrument is to come into force, it shall, subject to sub-section (4) below, come into force on the day when the decree, edict or subsidiary instrument, as the case may be, is made.”
Sub-section (4) is not relevant to the issue under consideration. As the Limitation Edict has other provision in it for its coming into operation, it is that other provision that determines its date of commencement and that other provision is section 1 which specifically states that the Edict “shall come into operation on such day as the Attorney-General may appoint by an order published in Gazette.”
Until the Attorney-General has made an order published in the Gazette bringing the Edict into operation, it cannot be applied. The provisions of section 17 of the Interpretation Law Cap. 52 Laws of Northern Nigeria (applicable to Plateau State) which is cited in the appellant’s brief do not help the appellant. Rather the section supports the view taken by the court below. It provides:
“17. When any Law is not to come into operation immediately on the passing thereof, and confers power to make any appointment, to make grant or issue any instrument, to give notice or make orders, regulations or rules of court, to prescribe forms, or to do any other thing for the purpose of the law, that power may, unless the contrary intention appear, be exercised at any time after the law has been assented to by the Governor, so far as may be necessary or expedient for the purpose of bringing the law into operation at the date of commencement thereof:
Provided that orders, regulations or rules of court so made shall not take effect till the commencement of the law.”
The proviso clearly puts beyond dispute the contention of the plaintiffs in this case. The argument of the 1st defendant to the effect –
“Therefore the operative word is assent by the Governor, which shows that as soon as the Governor assents to a law it becomes operational, and it is the assent of the Governor that gives the law its validity.”
is only valid if there is no contrary intention in the Law. But where there is, as in the Limitation Edict under consideration, it is that contrary intention that prevails. As I have stated earlier on, it is not in dispute that the Limitation Edict having been assented to by the Military Governor is valid. But in view of section 1 thereof, it does not come into operation until the Attorney-General of the State has by order published in the Gazette, brought it into force on a date mentioned in the said order.
In conclusion, I find no merit whatsoever in this appeal. The conclusions reached by the court below are correct and I affirm them. Consequently I dismiss this appeal with costs to the plaintiffs/respondents assessed at N1,000.00. The case is remitted to the trial court for it to be determined on its merit.
UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother Ogundare, J.S.C. I entirely agree that the appeal has no substance and that it should be dismissed. Accordingly for the reasons contained therein, the appeal is hereby dismissed and the case is remitted to the High Court for it to proceed with the trial. I adopt the order in the said judgment.
WALI, J.S.C.: I have read in advance the lead judgment of my learned brother, Ogundare, J.S.C. and I agree with his reasoning and conclusion for dismissing the appeal.
There is no iota of doubt that the Plateau State Limitation Edict, 1988 is a valid and existing law. The dispute is whether it has come into operation from the date it was assented to and signed by the then Military Governor of the State, notwithstanding the provisions of section 1 of the Edict. Section 1 of the Edict provides that the edict “shall come into operation on such day as the Attorney General may appoint by an order published in Gazette”.
The wording of section 1 of the Edict referred to is express and clear and does not need any further construction to ascertain its meaning. The Edict will continue to remain in abeyance until a date is published in the gazette for its coming into force. It cannot therefore apply to this action. Both section 1 of Interpretation Law Cap 52 Laws of Northern Nigeria, 1963 and section 4(3) of the Constitution (Suspension and Modification) Decree No.1 of 1984 are not apposite and therefore irrelevant.
As also clearly pointed out in the lead judgment, S.2 of the Public Officers Protection Law Cap. 111 Laws of Northern Nigeria, 1963 cannot apply to the facts of this case since there is nothing in the pleading to show that the appellant, in his capacity as a public officer, did something whether by way of action, deed, neglect or default in the discharge or execution of any of the public duty or duties assigned to him.
There is no substance in this appeal. It is for these and the elaborate reasons contained in the lead judgment of my learned brother, Ogundare, J.S.C. that I also hereby dismiss this appeal. I subscribe to the consequential orders contained in the lead judgment, including that of costs.
SC.186/1992
