Hon. Sunny Obi-akejule & Ors. V. Delta State Government & Anor. (2008)
LawGlobal-Hub Lead Judgment Report
B HELEN MORONKEJI OGUNWUMIJU, J.C.A.
This is an appeal against the Ruling of Honourable Justice Z.A. Smith sitting at High Court of Justice 2, Asaba, Delta State in Suit No. A/117/2005 delivered on the 30th of March 2006 wherein he struck out the Appellants’ Suit on the ground that it was STATUTE-BARRED having been brought outside the three months period allowed by S.2 (a) of the Public Officers Protection Law, Cap 137, Laws of Bendel State of Nigeria, 1976 applicable to Delta State.
The facts that led to this appeal are as follows: –
The Appellants who instituted this action as Plaintiffs, were the Councilors elected into the various local government Councils of the Delta State in 1999 under the Delta State Local Government Law, 1999 on full time basis and became entitled to salaries, allowances etc under the Delta State Remuneration, Salaries and Allowances, Gratuities and Pension of Certain Public Offices and Bodies Law, 2000.
On 18th April, 2005 the Executive Governor of Delta State assented to the Delta State Local Government Law 2004 divesting the Councilors of the vested rights and entitlements to occupy their seats as full time Councilors and to enjoy the remuneration prescribed by the Delta State Remuneration, Salaries and Allowances, Gratuities and Pension of Certain Public Offices and Bodies Law, 2000.
The Appellants commenced this action by originating summons on 7th June, 2005, precisely one month three weeks after the law was given assent by the Executive Governor, praying the High Court to interpret the various laws and determine the following questions:
i. Whether the Local Government (Amendment) Law 2004 divested Plaintiffs of their vested rights and entitlements to occupy their seats as full time Councilors and enjoy the remuneration prescribed by the Delta State Remuneration, Salaries and Allowances, Gratuities and Pension of Certain Public Offices and Bodies Law, 2000?
ii. If yes, whether such law in designating Councilors as part time is valid, competent and or legal?
Appellants then sought declaratory and injunctive reliefs against the Respondents.
The Respondents challenged the jurisdiction of the High Court to adjudicate on the Suit filed by the Appellants by a NOTICE OF PRELIMINARY OBJECTION dated the 8th day of August, 2005 on the grounds that:-
- That the Delta State Local Government Law, 2004 came into force on the 20th day of October, 2004
- That this action was instituted/filed by the Appellants on the 7th day of June, 2005
- That this action against the Defendants is STATUTE-BARRED by virtue of S.2 (a) of the Public Officers Protection Law, Laws of Bendel State 1976, also applicable to Delta State.
- That this action is clearly outside the three months required, within which this action ought to have been brought.
After hearing counsel for the parties on the objection, the learned trial judge on 30th March 2006 upheld the objection and struck out the suit as being incompetent being statute-barred. The Appellants being dissatisfied have appealed to this court.
The Appellants filed appellants’ brief dated 19th January 2007 on same date. The Respondents filed Respondents’ brief on 7th March 2007 pursuant to order of court.
The Appellants’ Counsel C.A. Ajuyah Esq. identified two issues for determination, also agreed to by Respondents’ counsel.
Issue one is whether the learned trial judge was right in holding that the cause of action in this Suit accrued on 20th October, 2004 and not 18th April, 2005. Issue two is whether the learned trial judge was right in holding that the action is statute barred by virtue of the Public Officers Protection Law.
In my humble view, the sole issue for determination here is whether or not in the circumstances of this case, the Appellants’ action at the lower court is statute barred by the application of S. 2(a) of the Public Officers Protection Law of Bendel State 1976 now applicable in Delta State.
Learned Appellant’s Counsel argued that two dates are significant to the 2004 law. They are the 20th October, 2004 and 18th April, 2005. The law was assented to by the Executive Governor on 18/4/2005 and by its Section 1, it had a retrospective commencement date of 20/10/2004. The issue before the lower court and on which the first issue in this appeal turns is when the Appellants’ cause of action arose for the purpose of applying the Public Officers Protection Law of Bendel State applicable in Delta State.
He argued that even though the learned trial judge saw that the crux of the objection was the ascertainment of the date the cause of action arose, the learned trial judge erroneously upheld the objection by relying on S. 1 of the Delta State Local Government Law 2004 to decide that the cause of action arose on 20th October 2004 when the Bill was passed by the State Assembly rather than on 18th April, 2005 when the Bill was assented to by the Governor. The learned trial judge had held that S.1 of the law having made the commencement date of the law 20th October 2004 than the cause of action arose on that day and that the day of commencement prevailed over the date of assent by the Governor.
Appellants’ counsel argued that under S.100 of the 1999 Constitution, a Bill irrespective of the commencement date does not become law and cannot divest anyone of a vested right until it is assented to by the Executive Governor of the State.
He further submitted that the Bill, which had 20/10/2004 as the commencement date was not capable of affecting the vested rights of any of the Appellants or crystallize a cause of action until 18/4/2005 when it was assented to by the Governor of Delta State.
He cited House of Assembly, Bendel State v. A G Bendel State (1984) 5 NCLR 161 at 169. Counsel argued that a cause of action can only arise when there exists a factual situation that gives a person the right to judicial relief. He Cited Egbe v. Adefarasin (1987) 1 NWLR pt. 47 pg. 1; Alhaji v. Egbe (1986) 1 NWLR pt. 16 pg.361, Esigbe v. Agholor 5 (1990) 7 NWLR pt. 161 pg. 234. Counsel submitted that the learned trial judge was wrong to have held that even before the faction situation, which gave rise to a cause of action, had occurred the action was already barred by the Public Officers Protection Law. He submitted that the cause of action arose on 18th April, 2005 when the Governor gave assent to the Bill and not 20th October, 2004 and thus the action filed on 7th day of June 2005 was within time and not statute barred.
Learned Respondents’ Counsel Charles Agbagwu Esq. Submitted in reply that the phrase “cause of action” comprises the averments in the Plaintiffs statement of claim which discloses his right to institute an action for an alleged wrong. He cited Dantata v. Mohammed (2000) 7 NWLR Pt. 664 Pg. 176 at 209; Amusan v. Obideyi (2001) 6 NWLR Pt. 710 Pg. 647. He also submitted that we must look holistically and exclusively at the statement of claim to determine the date the cause of action arose. He cited 7Up Bottling Co. v. Abiola & Sons Bottling Co (2001) 13 NWLR Pt. 730 Pg. 469 at 495.
He argued that paragraphs 9-12 of the affidavit in support of the originating summons at pg. 6 of the record shows that the act which propelled the Appellants to file this action was the enactment of the Delta State Local Government Law 2004 on 20th October 2004 when it came into force.
It was forcefully submitted that the enactment of a statute law differs from the date when a statute comes into force or becomes operational and that the date of commencement must be ascertained from the legislation itself. S. 1 of the law states categorically that the law shall come into force on 20th day of October 2004. He cited Yare v. Nunku (1995) 5 NWLR Pt. 394 Pg. 129 at 150.
He contended further that it is not in all cases that the Governor’s assent is required to make a Bill a Law, for when a Governor withholds or refuses assent to a Bill and the Bill is again passed by the legislature with a two third majority, the Bill subsequently becomes law irrespective of the Governor’s lack of assent to it.
Counsel further submitted that even though there is a presumption against retrospectively and in favor of prospectively, where the words of the statute are clear and unambiguous, in respect of retrospectively, effect must be given to them, as that is the intention of the lawmaker. He cited Osadebey v. A G Bendel (1991) 1 NWLR Pt. 169 Pg. 525 at 567; Okafor v. Ibeziako and African Insurance Co. (1965) 1 AU NLR Pg. 425 at 429. He argued that the case of House of Assembly Bendel State v. A G Bendel should be distinguished from the facts of this case as the facts and circumstances are dissimilar from the facts and circumstances of this case and thus cannot be used as a precedent. He cited Anaedobe v. Ofodile (2001) 5 NWLR Pt. 706 Pg. 365 at 375, Fawehinmi v. NBA (No.2) (1989) 2 NWLR Pt. 105 Pg. 558 at 650.
The learned trial judge held on page 43-44 of the record thus:-
“Although the Delta State Local Government Law 2004 was enacted by the Governor giving his assent on 18/04/05 it has a retrospective effect in coming into operation thus constituting a bar against the Plaintiff’s claim filed on 7/6/05 against the defendants who are Public Officers under the Public Officers Protection Law Cap 37, Laws of the defunct Bendel State of Nigeria 1976 applicable to Delta State.”
My Lords, it is my humble view that in this case, the learned trial judge and consequently the counsel on both sides looked at the effect and substance of the legislation being challenged rather than the action being sought to be protected. All arguments on issue 1 seem to address the merits or otherwise of the Appellants’ case at the lower court rather than limiting the arguments to the issue of jurisdiction which was raised by way of preliminary objection at the lower court. Both counsels went to great lengths to submit on whether it is the date of commencement that gives rise to duties and obligations under the law or its date of enactment. They both followed the lead of the learned trial judge. Since this is the penultimate court, I will give my humble opinion regarding the arguments as postulated on that issue, but answer the pertinent question posed by this appeal and in my view the crux of the matter which is highlighted in issue 2. S. 1 of the Delta State Local Government Law provides as follows:
“This law may be cited as the Delta State Local Government Law 2004 and shall come into force on the 20th day of October, 2004”.
There is no doubt that a Bill does not become a law until there is assent by the Governor of the State. A bill is no more than an expression of intention on the part of the legislature until there is Governor’s assent or in the failure of Governor’s assent it is sent back to the legislature for approval by a two-thirds majority. See House of Assembly Bendel v. A G. Bendel supra and S.100 of the 1999 Constitution.
It is trite that a statute ought not to be given retrospective operation except where its language clearly intends the statute to operate retrospectively. See Okafor v. Ibejiako and African Insurance Supra. In Chigbu v. Tonimas (2006) 4 SCNJ 262, at Pg 274, the Supreme Court held inter alia, that even though a substantive law is presumed not to take effect retrospectively, a close perusal of specific provisions in the statute under consideration in that case yields no other conclusion other than that the intention of the law maker was to make the Edict operate retrospectively.
Also in HRH Festus Ibidapo Adesanoye & 2 Ors v. Prince Gbadebo Adewole (2006) 7 SCNJ Pg. 501 at 517 and 534-535. At pg. 517, Niki Tobi JSC who wrote the leading judgment held thus:-
“Retrospectively, the synonym of retroactivity, as it relates to statutes, means when the date of commencement of the statute is earlier in point of time than the date of enactment. See Afolabi v. Governor of Oyo State (1985) 2 NWLR (pt.9) 734. In other words, where a statute extends its scope or effect to matters that have occurred in the past, such a state is said to have retrospective effect. A statute having a retrospective effect takes care of past matters in the sense that it draws forward such matters to have legislative effect with all the currency of the new statute. While courts of law frown upon retrospective legislation as they are not the best in the development of the rule of law and more particularly the concept of fair hearing, they are not unconstitutional and therefore part of our jurisprudence. This is because the Legislatures have the constitutional right to enact a statute and make it apply retrospectively. In so far as such a statute is donated by section 4 of the constitution, courts of law do not have the jurisdiction to question the vires of the statute. See Adesanoye v. Adewole (2002) 9 NWLR (pt.671) 127.”
At pg. 534 – 535 Onnoghen JSC stated the law as follows:-
“It therefore does not matter whether the Declaration was enacted and published or registered after the cause of action arose and the action instituted in the High Court, the truth being that since the Declaration came into effect on 3rd January, 1984 while the cause of action arose on 21st August 1991, it is the 1991 Declaration that applies to the action particularly as paragraph 2 of the 1991 Declaration expressly revoked the 1958 Declaration and paragraph 3 states that the Declaration came into effect on the 3rd day of January, 1984. It is therefore my considered view that the lower court was in error in holding that it was the 1958 Declaration that applied to the facts of this case.”
From the foregoing ratio of the two learned justices of the Supreme Court, and despite our reservations about the inequity of retrospective legislations, it seems to me that irrespective of when the Bill was given assent by the Governor, the date of commencement takes priority over the date of assent to the extent that it is the date of commencement that all rights, duties and obligations became vested on or divested from those affected by it.
As for the argument that a retrospective act cannot affect vested rights as propounded by the Appellants’ Counsel, I think the law by virtue of S.6 (1) of the Interpretation Act is that retrospectivety must not be implied in an Act to affect vested rights unless expressly provided for in the statute except in respect of purely procedural matters. See OHMB v. Mallam Garba & Ors (2002) 7 SCNJ 256.
On issue 2, learned Appellants’ counsel argued that the action being instituted one month and three weeks after the cause of action arose on 18/4/05, the action was brought within three months and was not statute barred. Counsel also made a very interesting point that since the appellants have sought for interpretation of the relevant laws to determine their status, the interpretation of the law being a judicial act not founded on any act or neglect or default as contemplated by the Public Officers Protection Law, there can be no limitation in the power of the court to interpret laws and therefore the Public Protection law is inapplicable. Respondents’ counsel in reply argued that the time prescribed for filing the action had passed and the appellants can no longer enforce their right of action. He cited Ibrahim v. JSC (1988) 14 NWLR Pt. 584 Pg. 1 at Pg. 32. He argued further that the respondents questioned the filing out of time of an action against public officers and not the powers of the court to interpret laws.
As I said earlier, issue two addresses the crux of the matter. We are here faced with the applicability of S.2 (a) of the Public Officers Protection Law and not the effect of the legislation in issue. The date of commencement is only relevant in relation to the issue of the effect of the legislation. We are here not concerned with the effect of the legislation which is the cause of action. When an issue of lack of jurisdiction is raised regarding the litigation being statute barred it is not relevant to look at the substance of the cause of action as we have done in the circumstances of this case.
S. 2 (a) of the Public Officers Protection Law under which the Respondents sought protection from litigation states as follows: “Where any action, prosecution or 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.” (Underlining Mine)
My humble view is that it is the “ACT” of the Public Officer that is being challenged and not the consequence of the act. In this case, the Appellants sued the Government of Delta state and the Attorney General, the chief law Officer. The ACT of the state house of assembly that would have given rise to a complaint was the passing of the bill on 20th October 2004. The act being inchoate could not give rise to a cause of action because the Bill had not become law without the Governor’s assent. The ACT or action of the Governor personifying the Government of Delta State as a Public Officer is the assent of the Governor to the Bill on 18/4/2005. We must isolate that action which gave rise to the complaint from the effect or consequence of that action in this case. I cannot agree with learned Respondent’s counsel that the ACT which propelled the Appellants into filing this suit was simply the coming into force of the Delta State Local Government Law 2004. The Appellants did not sue the State House of Assembly but the Government and its chief law officer both of whom come within the meaning of person under the Public Officers Protection Law. It is the ACT DONE by the Government In pursuance or execution of its public duty that is being challenged.
I agree with learned Appellant’s counsel that a cause of action arises when a factual situation occurs which gives a person the right to judicial relief. With the greatest respect, it would be to say the least misconceived to hold that ever before the factual situation which gave rise to a cause of action crystallized, the action was already barred by the Public Officers Protection Law. Let us reverse the argument of Respondents’ counsel by asking ourselves, if the legislation were to commence in 2010, does it mean the that no one can challenge it even though it has been passed and signed into law in 2008?
Suffice it to say on this argument that the act complained of is not the act of the judicial officers in the process of adjudication, but the act of the Governor which led to the cause of action, In any event, litigation on the interpretation of constitutional provisions cannot in my humble view be statute barred, If a law is contrary to the provisions of the constitution, I think it can be challenged at any time. In Plateau State v. A.G. Federation (2006) 3 NWLR Pt. 967 pg. 346, the Supreme Court held that issues relating to the interpretation of the constitution which is a living document are serious issues, There can be no limitation in my view to the challenge of the validity of any legislation as any law and indeed the constitution is a living document and as long as it is in force, its validity can be challenged. It is my firm view that the act done and sought to be protected by the Public Officers Protection Law was the Governor’s assent to the Bill to become law on 18th April 2005, That action simpliciter in my view can be challenged within three months but not later. The Appellants filed the action on 7/6/05, less than two months after the act complained of in my view it was not statute barred, With the greatest respect, it is apparent from the above quoted ratio of the learned trial judge that his Lordship’s conclusion was borne out of the view that the effect of the legislation determined when the cause of action challenging it accrued, As stated earlier, the date of commencement goes to the issue of the effect of the legislation rather than the challenge of the very act of passing or assenting to the legislation. I am of the view that this appeal is meritorious and it is hereby allowed. Judgment of the lower court is hereby set aside.
APPEAL ALLOWED.
Costs of N30,000.00 for the Appellants against the Respondents.
Other Citations: (2008)LCN/2820(CA)
