HON MOHAMMED SALEH & ANOR V GARBA DATTI MOHAMMAD & ORS
(2010)LCN/3559(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 2nd day of February, 2010
CA/K/EP/NA/5/08
RATIO
JURISDICTION: AT WHAT STAGE OF A PROCEEDING CAN THE ISSUE OF JURISDICTION BE RAISED
It must, therefore, be emphasized, as was stated by the Supreme Court in Owie vs. Ighiwi (2005) 5 NWLR (Pt.917) p.184 at 223, that the defence of Statute of limitation relates to the jurisdiction of the Court. Therefore, since the question of jurisdiction is radically fundamental or the fabric of any judicial process, it can be raised at any stage of a proceeding and even for the first time in the Supreme Court. Relying on the case of Management Enterprises Ltd & Anor vs Jonathan Olusanya (1987)2 NWLR (Pt.55) p.179, the Supreme Court further stated that such an issue must however, be properly raised, before the Court can properly entertain the point. It follows that, where a party seeks to raise for the first time on appeal an issue that was not canvassed at the trial Court, a specific leave to raise the fresh issue must be sought and obtained before it can be properly argued. See Awuse vs Odili (supra). PER THERESA N. ORJI – ABADUA, J.C.A
APPEAL: DUTY OF OBTAINING LEAVE OF COURT BEFORE RAISING FRESH ISSUES ON APPEAL
It is also trite that when the issue raised for the first time in the appeal Court 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. See Ogba vs Onwuzo (2005) 14 NWLR (Pt.945) p.331. It was emphatically stated in Adams vs Umar (supra) and by the Supreme Court in Owie vs Ighiwi (supra), that such an application for leave to raise on appeal a question which was not raised, tried or considered at the trial Court, will only be entertained where the issue sought to be raised involves a substantial point of law, substantive or procedural, and it is plain that no further evidence needs to be adduced which will affect the decision, so as to prevent obvious miscarriage of justice. PER THERESA N. ORJI – ABADUA, J.C.A
ACTION: IMPORTANCE OF THE DATE WHEN AN OCCASION ARISES FOR DETERMINING WHEN A CAUSE OF ACTION AROSE
It is pertinent to note that date is very material when an occasion arises for determining when a cause of action arose. It is only when the plaintiff or Petitioner specifically pleads the date on which the cause of action arose that there will be no burden on the defendant or respondent who is raising the plea to prove the date of cause of action in order to succeed. PER THERESA N. ORJI – ABADUA, J.C.A
JUSTICES
MOHAMMED L. GARBA Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
THERESA N. ORJI – ABADUA Justice of The Court of Appeal of Nigeria
Between
1 HON MOHAMMED SALEH
2. PEOPLES DEMOCRATIC PARTY (PDP) Appellant(s)
AND
1 GARBA DATTI MOHAMMAD
2 ALL NIGERIA PEOPLES PARTY (ANPP)
3 INDEPENDENT NATIONAL ELECTORAL
COMMISSION (INEC) & 13 ORS Respondent(s)
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.
As regards the second condition stated in Adams vs Umar (supra) on the issue of availability of materials for the resolution of the issue being on the records of the Court, Counsel pointed out that all the materials required for the resolution of the issue are contained in the printed records.
Learned Counsel reproduced the provisions of section 141 of the Electoral Act, 2006 and stated that the result of Sabon Gari Federal Constituency of Nigeria was declared on 21st April, 2007 which is evidenced by Form EC 8E (II), being the Form for declaration of result admitted as Exhibit W at the trial Tribunal.
Counsel further referred to page (i) No.2, Page (v) showing the opening statement of the Secretary to the Tribunal, the foot of page 1, Vol. 1 of the record, page 1053, line 3 of Vol. 2 of the record, and paragraph 3(d) of the Counter affidavit of the 1st and 2nd Respondents sworn to on 24/4/09, and said it is indisputable that the said Election Petition was filed on 21/5/07. He contended that from 21/4/07 when the election result was declared to 21/5/07 when the Petition was filed, a period of 31 days had elapsed as against the statutorily mandated period of 30 days prescribed by section 141 of the Electoral Act, 2006. Therefore, the Petition of the 1st and 2nd Respondents was filed a day outside the statutorily prescribed period, and, as such, the leave of this Court is needed to amend the Notice of Appeal to incorporate the ground for want of jurisdiction of the trial Tribunal to have entertained the Petition in the first place. He argued that for the purposes of section 141 of the Electoral Act, the computation of time is inclusive of the date of declaration of result. He further cited the cases of Akume vs Lim (2008) 16 NWLR (Pt.1114) p.490 at 502 paras F-G, 505 para 6-H and 508 para C-E and Ogbebor vs Danjuma (2003) 15 NWLR (Pt.843) p.403 at 434, para H, 435 paras A-C. He further stated that, all the Appellant is required to show is that the issue borders on jurisdiction and that no additional evidence is required for the determination of the issue. He said that this Court needs to resolve the issue whether the Petition is Statute-barred at the hearing of the appeal, after the leave sought is granted. He then urged that this application be granted.
In the submissions made on behalf of the 1st and 2nd Respondents by their Counsel, Godwin Ajibola Alley Esq., the issue presented for determination is:
“Whether from the facts in the record of proceeding of this appeal, it is clear and needs no explanation, if the question had arisen in the Tribunal, that the result of the election in question was declared on 21/4/007, therefore, this Honourable Court ought to allow the fresh issue of statute of limitation to be raised and taken at this appellate stage by the Appellants.”
In dealing with the issue, Learned Counsel anchored in the decision in Adams vs Umar (2009)5 NWLR (Pt.1133) p.41 at 139 paras G-H and argued that if the question of statute of limitation had been raised at the Tribunal, it would have been opposed vehemently, because it is not apparent on the record of appeal that the result of the election was declared on 21/4/2007, rather, it was on 22/4/2007, thereby buttressing the fact that the Appellants’ contention would have required a lot of explanation which are not contained in the record of proceedings. He stated that the scores of the candidates at the election as declared by the Returning Officer, the 4th Respondent, were as pleaded at paragraph C.2 of the Petition and Annex ‘A’ to the Petition, at pages 3 and 21, Vol.1 of the record of appeal, which said documents were clearly admitted by the 1st Appellant (the 1st Respondent) at paragraph 2 of his Reply to the Petition at page 463, Vol.1 of the record of appeal. It was contended by Counsel that the said Annex ‘A’, which was admitted by the 1st Appellant, did not show that the result of the election was indeed declared on 21/4/2007. Counsel further stated that on Annex A, the score of the DPP candidate, Yakubu Bala is 727 but on the INEC Form EC SE(II) annexed as ‘D’ to the 1st Appellant’s Reply to the Petition, the said DPP candidate was stated to have scored 7020. He also stated that by the averments at paragraphs C.5 and C.6, the 1st and 2nd Respondents (then Petitioners) disputed the said INEC Form EC SE(II) as stated at paragraph C.4. He commented that the 4th Respondent, the purported maker of the said Form EC 8E(II), was not called by the 1st and 2nd Respondents (the Appellants) to tender it in evidence, rather, the Certified True Copy of it was tendered by the Appellants’ Counsel from the Bar as Exhibit W, the admissibility of which the 1st and 2nd Respondents’ Counsel strongly objected to the record on the ground that Exhibit W was not tendered by its maker who could have been cross-examined. He also placed reliance on the case of Chief Sergeant Awuse vs Dr. Peter Odili & 326 Ors (2005) All FWLR (Pt.261) p.248 at 321 paras A-C and urged this Court to hold that the said Exhibit W is a documentary hearsay which has no probative value whatsoever. He also stated that the 2nd Appellant did not file any Reply to the Petition, and the 3rd -17th Respondents were not so diligent, and, as such, could not file any Reply to the Petition. Counsel explained that copies of the INEC Form EC 8E (II) found at page 605, Vol.1 and pages 649 and 762 of Vol. 2 in the record of appeal, were copies of the documents the 3rd – 17th Respondents attempted to file as Annex to their Reply but could not. They are not part of the live documents of the record of proceedings and ought not to have been referred to by the Appellants in their written address.
Counsel insisted that the result of the election to the House of Representatives for the Sabon Gari Federal Constituency was declared on 22/4/2007. He referred to the testimony of the 1st Respondent (then 1st Petitioner), as PW1 before the trial Tribunal at page 934 lines 14-19, Vol.2 of the record where he stated that the result was announced on the 22nd April, 2007, and that it was pleaded at page 21 of his Petition in support. Counsel further made reference to the testimonies of PW3 and PW4 at pages 4 and 5, and 942, lines 6-10, Vol.2 of the record to the effect that the said result was declared on 22/4/07. Learned Counsel also, referred to the findings of the trial Tribunal at page 1077, Lines 1- 6, Vol.2 of the record on the demeanour of PWs1, 3 and 4, and, how impressive they were. He cited the case of Calabar Central Co-operative Thrift & Credit Society Ltd & Ors vs Bassey Ebong kpo (2008) All FWLR (Pt.418) p.198 at 218 paras D-E, and, submitted that since the Appellants did not appeal against the findings of the Tribunal on the demeanour bf the PWs1, 3 and 4, those findings are deemed as having been accepted by their meaning, therefore, the result of the election was declared on 22/4/07 and not on 21/4/07. Counsel, however, referred to the cases cited by the Appellants’ Counsel in their written addresses and urged the Court to disregard them for being irrelevant since the Appellants were not denied any right to raise a fresh issue of jurisdiction. He stressed that the provisions of sections 141 and 70 of the Electoral Act, 2006 had not been breached by anybody since the Petition was presented within 30 days from the date of declaration of the election result, that is to say, on 22/4/2007, by the Returning Officer, Sabon Gari Federal Constituency, and the 4th Respondent in the Petition. He drew the attention of the Court to other issues relating to the argument of Counsel by the Appellants/Applicants and then urged the Court to dismiss the said Motion on Notice filed by the Applicants.
The 3rd-17th Respondents, in their address prepared by their Counsel, C.N. Nwagbo Esq., adopted the first issue raised by the Appellants/Applicants’ Counsel but somewhat recast the issue as were propounded by the 2nd Respondents’ Counsel thus:-
“Whether from the record of proceedings from the lower Tribunal, it is clear and unambiguous that the result of the said disputed election was declared on 21st April, 2007 and the Petition was filed on 21st of May, 2007 thereby necessitating the raising of the issue of statute of limitation which affects the jurisdiction of the lower Tribunal to entertain the Petition ab initio.”
On issue No.1, Learned Counsel for the 3rd-17th Respondents stated that not only does the Applicants’ application have merit, but, that the issue raised therein is such that this Court can suo motu raise and ask the parties to address it on it, since the issue is one of substantial point of law arising on the record. He cited in support the Supreme Court decision in Marcus Ukaegbu & 3 Ors vs Mark Nwokolo (2009) 1 SCNJ 49 at 68 lines 15-18, per Ogbuagu JSC and urged this Court to resolve the first issue in favour of the Applicants.
Regarding issue No.2, Learned Counsel, pointedly stated that the declaration of result sheet admitted as Exhibit W at the lower Tribunal is a certified true copy issued by the 3rd Respondent which is an official public body. He further stated by virtue of section 150(1) and (2) of the Evidence Act, there is always a presumption of validity and genuineness in favour of results certified and presented by the 3rd Respondent. He further reproduced the provisions of section 163 of the Electoral Act, 2006 to buttress the point. Counsel also relied on the decision in Hon. CM. Obun vs A.A. Ebu & 31 Ors (2006) All FWLR (Pt.327) p.419 at 442-443 paras A-B, and, submitted that the 21st of April, 2007 inscribed on Exhibit W is part of the result of the election and it clearly stated when the 3rd Respondent declared the result. He contended that the 1st and 2nd Respondents did not produce any other result sheet bearing 22nd April, 2007 showing that the result of the election was declared on that date. Counsel further stressed that by section 132(1) of the Evidence Act, 2004 no oral evidence can be adduced to contradict the contents of the said document, therefore, the 1st and 2nd Defendants are precluded from leading oral evidence to show when the result of the election was declared. They neither tendered another result sheet nor did they give notice nor apply to the trial Tribunal to inspect documents. He said that the contents of Exhibit W were what the 3rd Respondent posted on the internet which is, Annexure A to the Petition of the Petitioners, i.e., 1st and 2nd Respondents. He submitted that the Appellants/Applicants application was properly brought, and, that all the condition precedent for bringing the application had been fulfilled by the Applicants, and, the same are present on the record of proceedings at the trial Tribunal. He, therefore, cited the case of Action Congress & Anor vs Jonah David Jang & 9 Ors (2009)4 NWLR (Pt.1132) p.475 at 509 Paras B-D where it was held that the 30 days period stipulated in section 141 of the Electoral Act started from 16th April, 2006 on which the result was declared without prejudice to the time the result was actually declared in so far as it was declared within 24 hours of the day in question.
He then urged the Court to grant the application.
However, the Applicants filed a reply to the address of Counsel for the 1st and 2nd Respondents. Their Counsel cited the case of Alataha vs Asin (1999) 5 NWLR (Pt.601) p.32 at 40 paras F-H; 41 paras A-C and 44 paras E-G and submitted that there is a world of difference between announcement of results and declaration of results. He emphasized that results are normally declared by the Returning Officer in the relevant Form like Exhibit W in the instant suit, and, subsequently announced by way of broadcast by radio or television. He further urged that the application be granted.
I have examined microscopically all the prayers being sought by the Applicants, the depositions in support of the same, and, the analytical arguments of the parties via their respective Counsel, and, must say that I find the issue couched by Counsel for the 3rd-17th Respondents very apt to be considered by this Court.
It is clear on the Motion paper that the fresh issue the Applicants are seeking the leave of this Court to raise for the first time, is that of statute of limitation.
It must, therefore, be emphasized, as was stated by the Supreme Court in Owie vs. Ighiwi (2005) 5 NWLR (Pt.917) p.184 at 223, that the defence of Statute of limitation relates to the jurisdiction of the Court. Therefore, since the question of jurisdiction is radically fundamental or the fabric of any judicial process, it can be raised at any stage of a proceeding and even for the first time in the Supreme Court. Relying on the case of Management Enterprises Ltd & Anor vs Jonathan Olusanya (1987)2 NWLR (Pt.55) p.179, the Supreme Court further stated that such an issue must however, be properly raised, before the Court can properly entertain the point. It follows that, where a party seeks to raise for the first time on appeal an issue that was not canvassed at the trial Court, a specific leave to raise the fresh issue must be sought and obtained before it can be properly argued. See Awuse vs Odili (supra).
It is also trite that when the issue raised for the first time in the appeal Court 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. See Ogba vs Onwuzo (2005) 14 NWLR (Pt.945) p.331. It was emphatically stated in Adams vs Umar (supra) and by the Supreme Court in Owie vs Ighiwi (supra), that such an application for leave to raise on appeal a question which was not raised, tried or considered at the trial Court, will only be entertained where the issue sought to be raised involves a substantial point of law, substantive or procedural, and it is plain that no further evidence needs to be adduced which will affect the decision, so as to prevent obvious miscarriage of justice.
It was strenuously argued by Learned Counsel for the 1st and 2nd Respondents, who were the Petitioners at the trial Tribunal that granting leave to the Applicants to raise issue of statute of limitation for the first time before this Court would, undoubtedly, entail leading evidence establishing the actual date the result of the said election was declared by INEC. He opined that from the averments in the 1st and 2nd Respondents’ Amended Petition at the trial Tribunal, it could be gleaned that the result of the election was declared on the 22nd April, 2007 and not on the 21st April, 2007 now alleged by the Appellants/Applicants.
I must state that, even though, the stage is not yet ripe to determine whether the Petition filed by the 1st and 2nd Respondents before the trial Tribunal was statute-barred or not, I would like to mention in passing, that for the determination of whether an Election Petition was not instituted before the period prescribed by the Electoral Act elapsed, the Tribunal/Court has to scrutinize the process filed by the Petitioner to discover when the result of the election in question was declared i.e., when the cause of action arose and compare that date with the date the said originating process was filed.
I had to restate the above principle because, if leave is to be granted to the Appellants/Applicants, this Court has to satisfy itself from the record of appeal before it, that there exists all relevant facts that would not require any explanation that could have been given if the said issue of statute of limitation was raised at the trial Tribunal.
It is pertinent to note that date is very material when an occasion arises for determining when a cause of action arose. It is only when the plaintiff or Petitioner specifically pleads the date on which the cause of action arose that there will be no burden on the defendant or respondent who is raising the plea to prove the date of cause of action in order to succeed.
I have given an anxious consideration to this application and during my scrutiny of the averments in the Amended Petition filed by the 1st and 2nd Respondents, it was discovered that no date was specifically pleaded as the date the said result of the election to the House of Representatives for Sabon Gari Federal Constituency of the Federal Republic of Nigeria was declared. I must observe that the date which was consistently and copiously pleaded in the entire paragraphs of the Amended Petition was the date of 21/4/2007, on which the election itself was held, and, not the date on which the result was declared. At paragraph C2 at page 3 of Vol. I of the record of appeal, Annex ‘A’ was stated to have been posted on the internet by the 3rd Respondent. The Petitioners (the 1st and 2 Respondents) did not specify that the said result was declared on 21/4/2007. Some of the averments at some sub-paragraphs of the main paragraph D of the Amended Petition alluded to the fact that the question of collation of some of the results in other Wards stretched up to the early hours of 22/4/2007. The 1st and 2nd Respondents vehemently contended that even though Annex ‘A’ or Exhibit ‘W is a certified true copy of Form EC8E II issued by the 3rd Respondent and bearing the date of 21/4/2007, there will still be need for the prove that the election result was
indeed declared on 22/4/2007 showing that their Petition was filed within the statutory prescribed period.
It is instructive to note that although the Appellants are seeking the leave of this Court to raise the issue of statute of limitation for the first time in the proceeding based on their assertion that the result of the election into House of Representatives for the Sabon Gari Federal Constituency of the Federal Republic of Nigeria, was declared on the 21st April, 2007, the law is that where as in the instant case, the facts pleaded or the originating process filed, did not specify the date on which the overall result was declared, and the 1st and 2nd Respondents, as Petitioners at the trial Tribunal, are disputing or challenging the date alleged by the Appellants, it is therefore, as the case may be, the Appellants in this appeal who should prove that the petition filed against them by the 1st and 2nd Respondents is statute-barred. In Odubeko vs. Fowler (1993)7 NWLR (Pt.308) p.637 at 660, the Supreme Court, per Onu J.S.C. placed heavy reliance on the case of Savannah Bank vs. Pan Atlantic Shipping & Transport Agencies Ltd & Anor (1987) 1 NWLR (Pt.49) p.212 and held that it is not enough to plead a particular date in the statement of defence as the date the cause of action arose because, if the date is not admitted by any reply of the plaintiff to the defendant’s statement of defence, it will be impossible to compute the limitation period, it, being not permissible; indeed wrong for a Court to compute the time from the date pleaded by the defendant. It was further held in Odubeko vs. Fowler (supra) that the onus is on the defendant who relies on such a defence of limitation of action to prove that the action instituted against him by the appellant is statute-barred, that is to say, he has the onus to establish when the cause of action accrued to the plaintiff. See also the case of Texaco Panama Inc. vs. Shell Petroleum Development Corporation of Nig. Ltd. (2002)5 NWLR p.209 where Odubeko vs. Fowler (supra) was referred to, and it further strengthened the principle that where a plaintiff specifically denies the issue of the period of limitation, the defendant, in order to succeed, must prove his averment by evidence.
In the instant application, the date of declaration of the election result was not disclosed in the Amended Petition, by the 1st and 2nd Respondents (the Petitioners). They are disputing in earnest the date now asserted by the Appellant, as the date on which the cause of action accrued to them, therefore, it would not only be unwise, but, reprehensible for this Court to grant leave to the Appellants to raise the issue of statute of limitation for the first time before it, without any proof by evidence that the election result was declared on the alleged date of 21/4/2007.
Nevertheless, I agree with the submission of Counsel for the 3rd-17th Respondents that by virtue of section 150(1) of the Evidence Act, when any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with. There is a legal presumption that official acts have been done rightly and regularly until the contrary is proved. The burden is on the person who denies the regularity and authenticity of the act to rebut the same. So, where the person fails to rebut the presumption, his assertions must fail. This is apparently the reason why the 1st and 2nd Respondents are opposing the grant of the present application, since they are challenging the regularity of the date inscribed on Exhibit W. It is crystal clear that if this application is granted, the 1st and 2nd Respondents would not have the opportunity to call evidence they would have called, had the issue been initially raised at the trial Tribunal.
This Court is, therefore, not satisfied that all the relevant facts required for allowing the said issue, though bordering on jurisdiction, to be raised for the first time before it, exist on the record of appeal before it. There is absolute need for opportunity to be given to the parties to adduce evidence in proof of their assertions that the said result of the election to the House of Representatives for the Sabon Gari Federal Constituency was indeed declared either on the 22nd April, 2007 or 21st April, 2007.
It should be noted that none of the parties either directly or indirectly categorically stated in their pleadings i.e., Amended Petition and Reply, the date on which the said result was declared. Apart from the said Annex ‘A’ and Exhibit W, there is no iota of fact on the pleadings of the parties upon which it could be unequivocally ascertained, the actual date the said result was declared.
I am, therefore, of the profound view, with due respect, that granting leave to the Applicants now to raise, for the first time, this issue of Statute of limitation before this Appellate Court, when there is disputation or conflict between the parties regarding the actual date the result of the said election was declared, would, unreservedly, occasion serious miscarriage of justice to the 1st and 2nd Respondents who would be denied the opportunity of presenting any evidence whatsoever, in proof of their assertion. It is, therefore, inappropriate, at this stage, in the absence of all the relevant facts on the record of appeal, for the Appellants/Applicants to seek the leave of this Court to raise the issue of Statute of Limitation.
As a result, and for all the reasons I have given above, this application is devoid of merit and ought to be dismissed. Accordingly, the Motion on Notice dated 16th February, 2009 but filed on 17/2/09 is hereby dismissed for lacking in merit. I make no order as to costs.
MOHAMMED LAWAL GARBA, J.C.A: After a reading of the lead judgment written by my brother ORJI-ABADUA, JCA, I find myself in agreement with the reasoning and conclusion that the application should not be granted because it calls for evidence in proof of the assertion by the Appellant that the election result in question was declared on 21/4/2007. In the absence of any record from the record of the appeal and the denial by the Respondents of the asserted date, evidence in proof thereof becomes essential and inevitable but cannot be adduced at this stage because the facts do not justify so doing. See AMAECHI V. INEC (2008) 5 NWLR (1080) 227.
I adopt the reasons stated in the lead ruling and dismiss the application for being devoid of merit.
Parties to bear their respective costs of the application.
JOHN INYANG OKORO, J.C.A: I had the opportunity of reading in advance the ruling of my learned brother, ORJI-ABADUA, JCA just delivered. I agree with my brother that this application lacks merit and ought to be dismissed.
The salient issues submitted for the determination of this application have been thoroughly and quite efficiently dealt with in the lead ruling. I just wish to add that in a situation where the petition does not disclose the date which the result of the election was declared, it will not be in the interest of justice to introduce the issue of statute of limitation at this stage of the trial. What this means is that evidence will need to be adduced in order to ascertain the date, for whereas the Respondents submit that the result was declared on 22nd May, 2007, the Appellant/applicants contend it was declared on 21 May, 2007. I need to emphasise that leave to raise fresh issue is usually granted where no further evidence will be adduced. This is not the case here. See Owie Vs. Ighiwi (2008) 5 N.W.L.R. (Pt. 917) 184. Adams Vs. Umar (2009) 5 N.W.L.R. (Pt. 1133)41.
In the circumstance, I agree with my learned brother that this is not a proper situation to grant leave to raise fresh issue on appeal. Accordingly, this application lacks merit and is hereby refused. I abide by all consequential orders made in the Lead ruling.
Appearances
O.I. Habeeb Esq.For Appellant
AND
G.A. Alley, Esq
C.N. Nwagbo EsqFor Respondent
