Hon Mohammed Saleh & Anor V Garba Datti Mohammad & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

THERESA N. ORJI – ABADUA, J.C.A (Delivering the Leading Judgment)

The Appellants/Applicants herein filed a Motion on Notice on the 17th February, 2009 praying this Court or the following orders:-

“1. An order for leave to amend the Notice of Appeal dated 24/12/07 but filed on 27/12/07 by introducing one (1) additional Ground of Appeal arising from the decision of the trial Tribunal sitting in Kaduna and delivered on 14/12/07, namely ground 7 underlined in the proposed Amended Notice of Appeal.

2. An order for leave to raise in this Court for the first time, issue/point not raised in the trial Tribunal being the issue of statute of limitation bordering on the jurisdiction of the Tribunal.
3. An order deeming as properly filed and served the Amended Notice of Appeal incorporating the additional Ground of Appeal No.7, the necessary filing fees having been duly paid.”

The said application is pivoted on the grounds that:-

(a) The fresh point/issue sought to be argued with the Leave of this Court is the issue of Statute of Limitation arising from the filing of the Election Petition out of the Statutory period allowed by law.

(b) The issue was not raised in the trial Tribunal although the evidence to sustain the issue was before the trial Tribunal.

(c) The issue borders on the jurisdiction of the trial Tribunal to entertain the Petition and therefore fundamental.

(d) The issue had been incorporated in the proposed additional Ground of Appeal No.8.

(e) Leave of this Court is required to amend the Notice of Appeal to incorporate the new issue and to equally argue same.

Filed in support of the application is an affidavit of fifteen paragraphs deposed to by one Yusuf Ajibola Esq., a Legal Practitioner in the Law Firm of Messrs Habeeb and Company, and Solicitors to the Appellants / Applicants. Then, in compliance with the order made by this Court on 28/5/09 for written addresses to be filed by respective Counsel for the parties in this proceeding, Learned counsel for the Appellants/ Applicants, O.I. Habeeb Esq., filed a written address on 4/5/09, to which the 1st and 2nd Respondents, via their Counsel, Godwin Ajibola Alley Esq., filed their reply on 11/5/09. Also, the 3rd-17th Respondents, for their part filed a reply which was deemed as properly filed and served on 23/11/09. The Appellants/Applicants, further, filed their reply on point of law to the addresses of the Respondents’ Counsel.

The sole issue propositioned for determination of this Court by the Appellants/Applicants is:

“Whether the Appellants have made out a case for grant of the application.”

Learned Counsel for the Appellants/ Applicants, O.I. Habeeb Esq., relied on the case of Adams vs Umar (2009) 5 NWLR (Pt.1133) p.41 at 139, paras G-H and submitted that a party can seek and obtain leave to file and argue new or fresh issues in exceptional circumstances like when the issue relates to jurisdiction and their exists all relevant facts on record and the lack of any explanation which could have been given if it had been raised in the trial Court are required.

He explained that the issue of statute of limitation the Appellants/Applicants are seeking the leave of the Court to raise touches on the jurisdiction of the trial Tribunal. Learned Counsel further made reference to the cases of F.R.I.N. vs Gold (2007) 11 NWLR (Pt.1044) p.1 at 16 paras G-H and W.A.P.C. vs Adeyeri (2003) 12 NWLR (Pt.835) p.517 at 535 para H and 536 para H where the Supreme Court held that, a party may raise the defence of statute of limitation at an appellate Court, vide leave to do so, even if he did not do so at the Court of first instance, because such issue borders on the fundamental issue of jurisdiction. He further cited the cases of Oke vs Oke (2006) 17 NWLR (Pt.1008) p.224 at 238 paras A-B, per Augie J.C.A and Elugbe vs Omokhafe (2004) 18 NWLR (Pt.905) p.319 at 334 para C and Galadima vs. Tambai (2000) 11 NWLR (Pt.677) p.1 at 15 para F and then submitted that since the issue for which leave is sought to argue for the first time in this Court borders on jurisdiction, same should be allowed.