Lawan Sanda V. Kukawa Local Government & Anor (1991)

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B. WALI, J.S.C. 

The only issue that arises for determination in this appeal is 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. The appellant’s claim in the Maiduguri High Court of Borno State was for-

“(a) A declaration that this purported termination from the service of the Kukawa Local Government as the Village Head of Gashagar from the 12th day of December, 1983 and the appointment and installation of the 2nd defendant as the Village Head of Gashagar is wrongful, unconstitutional and therefore null and void. And that he is entitled to continue in his office as the Village Head of Gashagar.

(b) An interim injunction restraining the first defendant from appointing anybody as the Village Head of Gashagar until the matter is determined.

(c) A payment of the sum of (N10,000.00) Ten thousand Naira being general damages for the wrongful termination.”

Pleadings were filed and exchanged. Each side adduced evidence. After considering the evidence the learned Judge Adefila, J., impliedly opined that section 175 of the Local Government Law did not apply and then concluded-

“that the termination of the plaintiff, Lawan Sanda as the Village Head of Gashagar was wrongful, unconstitutional and therefore null and void. He should be re-instated immediately. The second defendant’s appointment was null and void and therefore he should be removed.”

The respondents appealed against the judgment to the Court of Appeal, Jos. In a well considered judgment of that court by Agbaje, J.C.A. (as he then was) with which Abdullahi, J.C.A. (as he then was) and Macaulay, J.C.A., both agreed, he allowed the appeal and concluded-

“that the learned trial Judge was wrong in holding that the plaintiff’s action was not time barred by section 175 of the Local Government Edict.

It was as result at that decision that the appellant has now appealed to this court.

Both the appellant and the 1st respondent filed and exchanged brief of arguments. On 10th December, 1990 when the appeal came up for hearing Mrs. L.B.J. Nggilari, Solicitor-General, Borno State, appeared for the 1st respondent. There was no appearance by the appellant or his counsel nor for the 2nd respondent who did not even file a brief. Some explanation for the absence of the appellant’s counsel was given by the 1st respondent, and having regard to the provision of subsection 6 of rule 2 of Order 6 of the Supreme Court Rules, 1985, which provides that-

“When an appeal is called and no party or any legal practitioner appearing for him appears to present oral argument, but Briefs have been filed by all the parties concerned in the appeal, the appeal will be treated as having been argued and will be considered as such.”

this court decided to treat the appellant’s appeal as having been argued. Learned counsel for the 1st respondent adopted the 1st respondent’s brief and then referred to the appellant’s brief in which the issue of the unconstitutionality of section 175 of the Local Government Law was raised. She submitted that the issue was never raised in the grounds of appeal, nor was the leave of this court subsequently sought to raise it. She therefore urged this court to ignore any arguments advanced in support of that.

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. See Abaye v. Ofili & Anor. (1986) 1 N.W.L.R. (PUS) 134 and Bakin Salati v. Talie Shehu (1986) 1 N.W.L.R. (Pt. 15) 198. The concise facts of the appellant’s case are as averred in the following paragraphs of his statement of claim:-