Moro Local Government, Kwara State V. Chief Theophilus a. S. Oyebiyi & Ors. (2006)
LawGlobal-Hub Lead Judgment Report
MUNTAKA-COOMASSIE, J.C.A.
The respondents, who were the plaintiffs in the High Court of Justice Ilorin, corum Gbadeyan J. claimed in their writ of summons, which was placed on the undefended list, against the appellant as follows:-
“(1) N9,711,759.38, (2) N4,808,274.88, (3) N4,847,274.88 (4) N4,847,274.88 (5) N4,847,274.88, (6) N5,847,792.75, (7) N5,687,531.05, (8) N5,538,191.87 and (9) N5,539,191.87; these respective indebtedness the defendant has failed, refused and/or neglected to pay to the respective plaintiffs despite repeated demands, acknowledgement by the defendant and as a final resort issuance of pre-action notice by the plaintiffs.
i. WHEREOF the plaintiffs claim respectively against the defendant as follows:-
(i) N19,711,759.38
(ii) N4,808,274.88,
(iii) N4,847,274.88
(iv) N4,847,274.88
(v.) N5,847,792.75
(vi) N5,847,792.75
(vii) N5,687,531.05
(viii) N5,539,191.87
(ix) N5,539,191.87
- 10% interest per annum on the respective indebtedness until it is totally liquidated.”
On the 11/2/2005, the suit was placed on the undefended List and adjourned to 23/02/2005 for hearing and the appellant was served with the writ of summon on 15/2/2005. On the 22/2/2003, a day before the date fixed for hearing, the appellant brought an application and prayed for the following reliefs:-
“AN ORDER of this Honourable Court extending the time within which the defendant/applicant may file its notice of intention to defend this suit.
AN ORDER deeming the defendant/applicant notice of intention to defend attached herewith as exhibit ‘A’ as duly and properly filed and served, appropriate fees having been paid.”
The notice was supported with affidavit and the proposed notice of intention to defend. The respondents filed a counter-affidavit to the motion. The motion was heard on the 23/2/2005 and in a considered ruling delivered on the 18/3/2005, the learned trial Judge refused the application for extension of time, and consequently entered judgment for the respondent. The learned trial Judge has this to say on pages 41- 42 of the record:-
“Authorities have settled it that an application for an extension of title in the circumstance of this case is a judicial discretion which must judiciously exercised. It is not granted as a matter of course.
It is a fact in the instant case that preaction notice was served on the defendant at least 3-1/2 months prior to 15/2/2005. The defendant had adequate notice to prepare any possible defence with or without the allegedly sick member of its staff. The sick leave allegation is not substantiated and all the other allegations are not cogent and compelling as they are devoid of any aura of seriousness and sincerity. Without saying anything more, I agree entirely with the submission of the learned counsel to the plaintiff/respondent that the application is supported by an affidavit which raised evasive and general issues bare of specific materials. It will be injudicious to accept such materials to grant an extension of time. Therefore, the application for extension of time is hereby refused.
Having said that, the issue of entering judgment comes for determination, It is settled law that where on a day fixed for hearing of an undefended suit, there is default by the defendant, judgment is automatically entered for the plaintiff, see Ben Thomas Hotels Limited v. Sebi Furniture (1989) 12 SCNJ 171 at 175; (1989) 5 NWLR (Pt.123) 523 or 3 NSCC 416 at 421.
Judgment is hereby, accordingly, entered for the plaintiffs as per their writ of summons.”
The appellant, being dissatisfied with the above decision thereafter, appealed to this court. By a Notice of appeal dated 21/3/2005, the appellant led two (2) grounds of appeal, and on 9/5/2005, the same appellant filed additional grounds of appeal. In compliance with the rules of this court, the parties filed and exchanged their respective briefs of argument. The appellant in its brief of argument dated 19/5/2005 and filed on 20/5/2005 formulated three (3) issues for determination of the appeal as follows:-
- Whether the respondents’ action which was instituted on 15th December, 2004 that is, 31 months after the respondents had left office was/is not statute barred- Additional grounds of appeal No.5.
- Whether the learned trial Judge did not base the exercise of his judicial discretion on irrelevant consideration and truncate the appellant’s right of fair hearing by relying on the pre-action notice as a basis for determining the sufficiency of the time available to the appellant to prepare its defence to the respondents’ case. – additional ground 1, 2 and 3.
- Whether the delay in filing the appellant’s notice of intention to defend, the respondents’ action was not sufficiently excused on the affidavit evidence and whether the case of Ben Thomas Hotels Limited v. Sebi Furniture (1989) 12 SCNJ 171; (1980) 5 NWLR (Pt.123) 523 was not wrongly applied in this case – original ground of appeal No.1 and additional ground of appeal No.4.”
The respondents, in their brief of argument, dated 26/7/2005 and filed on 26/7/2005 formulated four (4) issues for determination as follows:-
“1. Whether statute of limitation as bar to the respondents’ action is a competent issue in this appeal.
- Whether assuming, without conceding, that statute of limitation is a competent issue whether the respondents’ suit is statute barred.
- Whether on the affidavit evidence the exercise of the trial court’s discretion in refusing the appellant’s application for extension of time entering judgment for the respondents was not a proper exercise of discretion.
- Whether the refusal of the appellant’s application for extension of time was a breach of the appellant’s right to fair hearing.”
This appeal was heard on the 25/1/2006, the learned counsel to the appellant, A. O. Adelodun Esq. adopted his brief of argument and submitted that there are three additional authorities and urged this court to allow the appeal.
The learned respondents’ counsel, J. S. Bamigboye Esq. also adopted his brief of argument, and in his oral submission he submitted that the statute of limitation is not applicable to this matter as it is incompetent having not been raised before the lower court and no leave was sought and obtained to raise it as a fresh issue before this court. He urged this court to dismiss the appeal.
The appellant in its brief of argument submitted that by virtue of the provisions of section 178 of the Local Government Law Cap. 92 Laws of Kwara State 1994 this action is statute barred as it was not commenced within 6 months, instead it was instituted 31 months after the cause of action arose. (Underline mine). He relied on the cases of:
UBN Ltd v. Oki (1999) 8 NWLR (Pt. 614) 244;
Abubakar v. The Governor of Gombe State (2002) 17 NWLR (Pt. 797) 533 at 566;
and therefore submitted that this action is incompetent.
On the second issue formulated by him be submitted that the lower court did not exercise its discretion judicially and judiciously hence this court has the power to set it aside. He cited the case of:-
Enebeke v. Enebeke (1964) 1 All NLR 102, and
Ajomale v. Yaduat No.2 and Anor. (1991) 5 SCNJ AT 189; (1991) 5 NWLR (Pt.191) 266.
He submitted that this court will readily interfere with the exercise of discretion of the lower court where it is found that the lower court has:-
(a) Acted under a mistake of law or in disregard of principle or under a misrepresentation of facts or
(b) Has taken into account irrelevant matter or failed to take into account of relevant matter, or
(c) On the ground that injustice could arise.
The learned counsel cited the case of Solanke v. Ajibola (1969) 1 NMLR 253; Kudoro v. Alaka (1956) SCNLR 255. He therefore submitted that for the learned trial Judge to have held that the service of pre-action notice on the appellant was sufficient for the appellant to have prepared its defence before the court process were served was an irrelevant matter, as the pre-action notice could not take the place of a court’s process. He relied on the case of:-
Mobil Oil Producing Nig. Unltd. v. Lagos State Environmental Protection Agency & Ors. (2002) 18 NWLR (Pt. 798) 1 at 36; and
Eze v. Okechukwu (2002) 18 NWLR (Pt. 799) 348/366.
In the instant case, counsel pointed out, that the appellant was served with the writ of summons on 15/2/2005 while the return date was fixed on the 23/2/2005 while the appellant filed the motion for extension of time to defend on the 22/2/2005. i.e. eight (8) days after service of the writ of summons. He therefore submitted that for the trial court to have refused the application for the extension of time, the appellant has been denied his right to defend the action, particularly when a copy of the proposed notice of intention to defend was attached to the application.
Learned counsel also submitted that the lower court did not consider the reasons given for the delay and the nature of the appellants establishment.
On the third issue formulated by the learned counsel he distinguished the case of Ben Thomas Hotels Limited v. Sebi Furniture supra at p.175 from the present case. In the above cited case no notice of intention to defend was filed, while in the case at hand a copy of the notice of intention to defend was attached to the application, and the learned trial Judge ought to have considered it while ruling on the application for extension of time.
The respondents in the brief of argument submitted that section 178 of the Local Government Law of 1994 does not apply to this case. In addition, the issue of limitation of action being a fresh issue is incompetent and should be struck out. He relied on the case of Agedah v. Nkwocha and Anor (2000) 9 NWLR (Pt. 771) 113/125. Counsel therefore submitted that this issue is incompetent and should be struck out, he relied on Lipede v. Sonekan (1995) 1 SCNJ 184, at 196 – 197; (1995) 1 NWLR (Pt.374) 668.
Learned counsel further submitted that powers conferred on the trial court for the conduct of trials under the undefended list are discretionary, and such powers could only be challenged where it has not been judicially and judiciously exercised – Okanume v. U.A.C. Nig. Plc (2002) 12 WRN 144 at 123.
He submitted that even though the appellant was only late for 3 days in submitting his defence, this is not enough for the court to exercise its discretion in its favour. Application of this nature is not granted as a matter of course, the applicant must sufficiently explain the reason for its delay with a supporting affidavit setting out a defence on the merit. This the applicant has failed to do in this case. He cited the case of:
(a) Obadegwu v. Lious Bank of Nigeria Plc (2003) FWLR (Pt. 165) 410/424;
(b) Macaulay v. NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt. 144) 283.
He therefore submitted that the lower court was right in entering judgment for the respondent on default of filing any notice of intention to defend by following the decision in Ben Thomas Hotels Limited v. Sebi Furnituresupra at P.175.
On the issue of fair hearing, this principle, he submitted is applied in abstract, it relates to the factual situation on the ground, and it is an integral part of the principle that justice is dispensed with utmost speed. He cited the ease of Johnson Triangles Ltd. v. C. M. & P. Ltd. (2002) FWLR (Pt. 129) 441; (2002) 15 NWLR (Pt.789) 176. In the instant case, the appellants were served and they did not file their notice of intention to defend as required by the rules of court. He therefore urged the court to dismiss the appeal.
In the reply brief dated 5/9/2004, the appellant submitted that even though the issue that the action was statute barred was not raised before the lower court, since it is an issue that relates to jurisdiction, it can be raised without leave. He cited the case of Omokhafe & Ors. v. The Military Administrator of Edo State of Nigeria (2005) ALL FWLR (Pt. 243) 629/646.
Before I proceed to determine the main appeal, I wish to resolve the issue of whether the issue of limitation of action as raised by the appellant is competent or not. The appellant had strongly submitted that the issue is competent as it involved the question of whether the court has jurisdiction to entertain the matter or not. Being a question of jurisdiction it can be raised for the first time on appeal without first obtaining the leave of this court, reliance is being placed on the case of Omokhae v. The Military Administrator of Edo State supra at P.646 where Oguntade JSC held as follows:
“The general principle is that when a party seeks to and argue in this court any fresh issue not canvassed in the lower court whether that issue must pertain to law or otherwise, leave to file and argue must be heard and obtained first. But where the point or issue sought to be raised relates to the issue of jurisdiction, the point or issue can properly be filed and argued with or without the leave of the court even if it is being raised for the first time.”
My Lords, I must say that I am bound by the pronouncement of His Lordship of the Supreme Court quoted. However, the question to be answered here is, is this principle applicable in all cases where issue of jurisdiction is raised for the first time on appeal and when there was no evidence in the record to support it, or where the question of jurisdiction raised involved the issues of mixed law and facts?
In the case of A.I.C. Ltd v. N.N.P.C. (2005) 5 SCNJ 316 at 333 – 314; (2005) 11 NWLR (Pt.937) 563, the Supreme Court per Edozie JSC held as follows:-
“The position of the law on raising fresh issue on appeal is quite clear. It is that no substantial point of law which has not been taken in the court below will be allowed to be raised for the first time before the Supreme Court except under special circumstance – Makanjuola v. Balogun (1989) 3 NWLR (Pt. 108) 192 at 206. For a point of law to be entertained, it must be shown to be a substantive or adjectival and that no further evidence which could have been called in the court below if it was raised there could have affected the decision one way or the other. See on this, Stool of Abinabina v. Chief Koje Enyimadu (1953) 12 WACA 171; Shonokan v. Smith (1964) 1 ALL NLR 168 P.173; K. Apena v. Barclays Bank Nigeria Ltd. and Anor. (1971) SC. 47; Niger Progress Ltd. v. N.E.L. (1989) 3 NWLR (Pt. 109) 68 at 100. Furthermore to canvass such an issue, leave of court must be sought and obtained. See Obiako v. State (2002) 10 NWLR (Pt. 776) 612 at 616.”
Also in the case of Ogba and Ors. v. Onwuzo & Anor. (2005) 6 SCNJ 83 at 92 – 93; (2005) 14 NWLR (Pt.945) 331, Akintan JSC, on this same point, held as follows:
“It is settled law that generally where an issue is not raised in the court below by the parties before it such an issue should not be raised in the Appeal Court. But if the issue raised by such point is fundamental in nature, the Appeal Court will be disposed to give leave for it to be raised and will hear it for that reason. Therefore an issue not canvassed in the court below can only be taken on appeal with leave and in special circumstances. See Enang v. Adu (1981) 11 – 12 S.C. 25 at 45; Ezekude v. Odogwu (2002) 13 NWLR (Pt. 784) 366 at 373; Akpena v. Barclays Bank Nigeria Ltd. (1977) 1 S.C. 47; Salati v. Shehu (1986) 1 NWLR (Pt. 15) 198; Raimi v. Akintoye (1986) 3 NWLR (Pt. 26) 97; and Plateau Publishing Co. Ltd. v. Adophy (1986) 4 NWLR (Pt. 34) 205.
Where therefore there has been no leave sought and obtained by the appellant to argue the new issue and there are no special circumstance disclosed to warrant it being entertained, such new issue would be incompetent and liable to be struck out by the appellate court. See Eliochim (Nig.) Ltd. v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47 at 72; Attorney-General of Oyo State v. Fairlakes Hotels Ltd. (1988) 5 NWLR (Pt. 92) 1 at 24; Lipede v. Sonekan (1995) 1 NWLR (Pt. 374) 668 at 685; and Ejewhomu v. Edok-Eter Ltd. (1986) 5 NWLR (Pt. 39) 1 at 16.”
However the Supreme Court departed from the established procedure in the case of Ndukauba v. Kolomo & Anor. (2005) 1 SCNJ 134 at 139; (2005) 4 NWLR (Pt.915) 411 where Oguntade JSC held thus:-
“In this appeal, before the court of appeal, the appellant did not raise the question of fair hearing as he has done before us. This court however elected to consider the point because the denial of fair hearing is considered a serious matter justifying a departure from the established procedural rule that a matter not agitated before this court. See Salu v. Egeibon (1994) 6 NWLR (Pt. 348) 23 at 49; and Sokefun v. Akinyemi (1980) 5 – 7 SC 1. We do this because all the relevant parties have in their briefs extensively dealt with the issue.”
From the above principles enunciated by their Lordships of the apex court, I am of the view, with respect, that a fresh issue not taken at the lower court can be taken in the Appeal Court on the following conditions:-
(i) With the leave of the Appeal Court first sought and obtained;
(ii) The issue must relate to substantial point of law.
(iii) The applicant must show special circumstances why the issue was not taken at the lower court why it should now be taken at the Appeal Court.
(iv) Where the issues relates to jurisdiction or serious issues like a breach of fair hearing or limitation of action, the Appeal Court may depart from the above mentioned established procedural rules and take the issue.
(v.) However, in all the above situations, there must be sufficient evidence on the record, that would not necessitate the calling of fresh evidence, before the issue could be decided.
In the instant case, the issue involved the question of limitation of action which would deprive the court the jurisdiction to entertain the matter. The material is quite glaring, so glaring that the respondent was aware of it and even was placed at the trial court by the respondent themselves. (See the respondents’ writ of summons).
“The plaintiffs claim is that they are respective former functionaries of the defendant, and occupied their respective offices between June, 1999 and May, 2002. The defendant owes the respective plaintiffs between May, 2001 and May, 2002 unpaid salaries, balance of arrears of salary between June, 1999 – November, 2000 furniture allowance, and severance gratuity…”. They started the amount in details.
(Underlining mine for emphasis.)
The plaintiffs, now respondents only filed their writ of summons on 14/12/2004, The cause of action must have arisen in May 2002 and they did not find it fit to file an action until over 30 months after the cause of action.
My Lords, it is also clear that the plea of limitation falls within mixed law and facts. That being the case the issue of fresh issues can be perfectly in order and can be lawfully raised and granted by this court with or without our leave. I so hold.
The lower court clearly was in gross error when it turned down the application of the defendant for extension of time to file the notice of intention to defend the matter out of time. At least that court did not exercise its discretion judicially and judiciously making me to set that decision aside. This court could have ordered a retrial of the matter before the trial court but we discovered that the action was incompetent because it was filed far after the status period of six months next after the cause of action accrued. The respondents’ cause of action arose in May 2002 and action was filed on 14/12/2004. Clearly period of 31 months, instead of 6 months had gone. S.178 and the Local Government Law Cap. 92 Laws of Kwara State 1994 provides thus:-
“When any suit is commenced against a Local Government 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 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”.
(Italics mine for emphasis).
Having stated the position of this court on all the live issues brought before us I hold that appeal is quite pregnant with merits, same is hereby allowed. The decision of the lower court is quite perverse. Same cannot stand, it is hereby set aside. Ten thousand naira costs is awarded in favour of the appellant.
Other Citations: (2006)LCN/1899(CA)
