Abubakar N. Mohammed & Anor. V. Christopher Dajan & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

BODE RHODES-VIVOUR, J.C.A. (Delivering the Leading Ruling)

By way of Motion on Notice filed on the 4th of March, 2010 and brought under Section 246(1)(b)(11) of the Constitution, Sections 16 and 31 of the Court of Appeal Act/Order 6 rule 15 and Order 7 rule 10 of the Court of Appeal Rules, 2007, Learned Counsel for the appellants, Mr. S.S. Obende seeks the following:

1. Leave to amend the original Notice of Appeal filed on the 2nd day of October, 2009 by the filing of additional grounds of appeal in the terms of the grounds 14 to 25 of the proposed amended Notice and grounds of Appeal attached as exhibit ‘A’ to this motion, as set out in the schedule to this motion.
2. An order granting leave to the appellants, to raise grounds 15, 24 and 25 as fresh issues-
3. An order deeming the amended Notice of Appeal, filed as duly filed and served.

I.S.S. Wakklek Esq. a legal practitioner in chambers of Okey Akobundu and Co, one of the solicitors engaged by the appellant/applicants deposed to a 22 paragraph affidavit in support of the application. Annexed to the affidavit are documents marked exhibits A, B. Learned counsel for the 1st and 2nd respondents, Mr. I. Aderogba did not file a counter affidavit.

Learned Counsel for the 3rd to the 6th Respondents, Mr. S. Ibyen did not file a counter affidavit and had no objection to the grant of the application.

At the hearing of the application on the 29th of March, 2010 Learned Counsel for the applicants observed that the amendment sought is as it relates to the filing of additional grounds, contending that the amendment is restricted to the leave required.

As regards prayer 2, Learned Counsel observed that none of the three grounds of Appeal requires fresh evidence, contending that Learned Counsel for the 1st and 2nd Respondents never said which of the said three grounds requires fresh evidence. He urged us to grant the Motion.

Learned Counsel for the 1st and 2nd Respondents observed that the application is incompetent because the applicants did not ask for leave to file additional grounds. Reliance was placed on Reg. Trustees of Amorc v. Awoniyi 1994 7 NWLR Pt. 355 p. 954.

Inyang v Ebong 2002 2 NWLR Pt 751 p. 284.

Relying on Corporate Affairs Commission v. Reg. Trustees of Celestial Church of Christ 2009, 11 NWLR pt. 1151 P. 40.

Learned Counsel urged us to refuse to allow Learned Counsel for the applicants raise fresh issues since there should be an end to Litigation. Learned Counsel for the 3rd to 6th Respondents did not oppose the application.

Judgment was delivered on 16/9/09 while the Notice of Appeal was filed on 2/10/09.

The position of the law is that in election matters such as this the appellant is required to file his Notice of Appeal within 21 days after 16/9/09. That is to say the appellant must file his appeal on or before 7/10/09. In this case the Notice of Appeal was filed on 2/10/09. The original Notice of appeal was thus filed within time.

If the applicant seeks to amend his Notice of appeal his application to that affect(sic) must be filed before 7/10/09, and where he is unable to file his application within the time supra he must ask for leave to file additional grounds.

The appellant will only require leave of the Court of appeal where the additional grounds are to be filed out of time. See Tukur v Government of Gongola State 1988 1 NWLR pt. 68 p. 39.