CASE SUMMARY OF:
Lawan Sanda v. Kukawa Local Government & Anor (1991) - SC
Breach of Contract for employment;
1. Lawan Sanda
1. Kukawa local government;
2. Kaka Lawan;
(1991) 2 NWLR (Pt.174)379;
(1991) 3 SCNJ 35;
(1991) 3 S.C 45;
LEAD JUDGEMENT DELIVERED BY:
A. B. Wali, J.S.C.
LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
* FOR THE RESPONDENT
- Mrs. L.B.J. Nggilari.
The Appellant sued the respondents for terminating his service as the village head of Gashagar; he claimed the termination was wrongful, and unconstitutional. And that the appointment of the 2nd respondent as the new village head was null and void.
The High Court of Maiduguri gave judgement in favour of the Appellant and held that the action was not statute barred and hence s.175 of the Local Government Law 1976 of Borno State will not apply.
The respondents appealed to the Court of Appeal, Jos division, and the Court of Appeal upheld the appeal and gave judgement in favour of the respondents. Stating that the action was statute barred.
The Appellant has herein appealed to this Court (Supreme Court).
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Whether the Court of Appeal was right in holding that the appellant's action, having not been commenced within the period prescribed by Section 175 of the Local Government Law 1976 of Borno State, was statute barred?
HOLDING & RATIO DECIDENDI
The Supreme Court gave judgement in favour of the respondents, hence, it upheld the decision of the Court of Appeal. It stated that the action is statute barred.
i. I have myself carefully read and studied the grounds of appeal filed by the appellant, I cannot find in the said grounds, where the issue of unconstitutionality of section 175 of the Local Government Law was raised. The objection raised by the learned Solicitor-General is well taken and is accordingly sustained. A party is not generally allowed to raise and canvass an issue not raised in the court below without leave first being sought and granted.
ii. The appellant was dismissed from service by the 1st respondent from 12th December, 1983, the date Exhibit A was written as it stated that the termination was with immediate effect. The time would therefore start running against the appellant the day next after Exhibit A was written and received by the appellant. The appellant's cases was commenced on 23rd October, 1984, that is ten months after the accrual of the cause of action. Even allowing for a period of 7 days for service on him of Exhibit A the action was filed well out of time by almost 5 months. Ignorance of the statutory limitation provision by the appellant and/or his counsel is no defence.
Section 175 of the Local Government Law of Borno State provides as follows:
"When any suit is commenced against any Local Government for any act done in pursuance 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 such suit shall not lie or be instituted unless it is commenced within six months after the act, neglect or default complained of, or in the cases of a continuance damage or injury within six months after the ceasing thereof."
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A party is not generally allowed to raise and canvass an issue not raised in the court below without leave first being sought and granted. - A. B. Wali, J.S.C. Lawan Sanda v. Kukawa Local Government (1991)
In actions for breach of contract, the cause of action accrues for the plaintiff's benefit from the time the breach of the contract is committed and not when the damage is suffered. - A. B. Wali, J.S.C. Lawan Sanda v. Kukawa Local Government (1991)
It is settled that where the law prescribes a period for instituting an action, proceedings cannot be instituted after the prescribed period. - Kawu, J.S.C. Lawan Sanda v. Kukawa Local Government (1991)
And cause of action in the context simply means the factual situation which, if substantiated, entitles the plaintiff/appellant to a remedy against the defendants. - Nnaemeka-Agu, J.S.C. Lawan Sanda v. Kukawa Local Government (1991)
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