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INDEPENDENT NATIONAL ELECTORAL COMMISSION v. OKWARA IBE OSONWA & ORS (2019)

INDEPENDENT NATIONAL ELECTORAL COMMISSION v. OKWARA IBE OSONWA & ORS

(2019)LCN/13733(CA)

In The Court of Appeal of Nigeria

On Thursday, the 1st day of August, 2019

CA/OW/EPT/FHA/14/19

RATIO

APPEAL: WHEN A GROUND OF APPEAL IS INCOMPETENT

Therefore I hold the firm view that the ground of appeal in this Cross-Appeal is not grounded on the Ruling, the subject matter of this appeal, and so is incompetent. Similarly the issue distilled from the ground of appeal has no foundation upon which to stand, because the ground of appeal as it is, is incompetent. See DADA VS. DOSUNMU (2006) LPELR ? 909 (SC) pages 32 -34 paras E?D.
The sole issue donated by the Cross-Appellant not being competent by reason of the incompetent ground of appeal from which it is distilled, is hereby struck out, and exciting with it are all the submissions made by Learned Counsel to the Cross-Appellant. PER ANDENYANGTSO, J.C.A.

APPEAL: WHEN THERE IS NO BASIS UPON WHICH A CROSS APPEAL EMANATES

There is no Ruling or Judgment from which this Cross-Appeal emanated.
This appeal was filed on 14/6/2019, 19 days after the Cross-Appellant had been struck out from the Petition by virtue of its application to be so struck out, and the Petition dismissed against it. It had ceased to be a party to the proceedings as at that date. If it had any grouse, the probable way is to seek leave of Court to appeal as an interested party as it lacks the competence to appeal as of right under Section 246(1) (b) and Section 285 (7) of the Constitution. I hold the firm view that the Cross-Appellant did not suffer any miscarriage of justice as it was not denied any right of fair hearing. PER  ANDENYANGTSO, J.C.A.

 

Appearances

Isah Seidu, Esq. with him, O.F. Igboanugo, Esq.For Appellant

 

AND

O.O. Amuzie, Esq. for 1st and 2nd Respondents.

G. E. Ejemai, Esq. with him, A. I. Badamasi, Esq. for 3rd Respondent.

4th Respondent was absent and unrepresentedFor Respondent

 

 

JUSTICES

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria

Between

INDEPENDENT NATIONAL ELECTORAL COMMISSION Appellant(s)

AND

1. OKWARA IBE OSONWA
2. ALL PROGRESSIVE GRAND ALLIANCE
3. HON. NKOLE UKO NDUKWE
4. PEOPLES DEMOCRATIC PARTY Respondent(s)

IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering the Leading Judgment): The Cross Appellant, as the official body in charge of electoral matters in Nigeria, conducted general elections on 9/3/2019 all over Nigeria. The 1st and 3rd Respondents contested the election under the 2nd and 4th Respondents respectively. The Cross Appellant declared and returned the 3rd Respondent as the winner of that election into the National Assembly.

The 1st Respondent was dissatisfied with the results of the election and so he filed a Petition No. EPT/AB/REP/008/2019, before the Tribunal.

Pleadings were yet to close when the Cross-Appellant, as the 3rd Respondent, applied to the Tribunal to dismiss the Petition against it. The Tribunal, based on that oral application, granted same and dismissed the petition against the 3rd Respondent.

The 1st and 2nd Respondents filed an Appeal No. CA/OW/EPT/FHA/10/2019 against the Ruling in which the cross-Appellant was made the 3rd Respondent. The Cross-Appellant did not cross appeal in that appeal, but rather filed this separate and distinct Appeal No. CA/OW/EPT/FHA/14/2019, in which it describes itself as

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?Cross-Appellant? without any Appellant, complaining that its name is still in the process and then urged us to strike out all the paragraphs of the petition containing its name and then dismiss the petition entirely for non-compliance with the provisions of Paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010 (as amended).

The notice of the Cross Appeal was filed on 14/6/19 (pages 384 -388 of the Record of Appeal, ?the Record for short). The Ruling is contained at pages 372 -381 of the Record. The Record itself was transmitted to this Court on 21/6/19.

The Cross Appellant?s Brief of Argument, settled by Isah Seidu, Esq. was filed on 25/6/19. The 1st and 2nd Respondents filed their joint Brief of Argument on 28/6/19. The Cross Appellant filed a Reply to the joint Brief of the 1st and 2nd Respondents on 3/7/19. The 3rd and 4th Respondents filed no Briefs.
?
The Cross Appeal was heard on 9/7/19 on which date Isah Seidu Esq. appeared with O. F. Igboanugo Esq. for the Cross Appellant and adopted the Brief and Reply Brief respectively and urged us to allow the Cross Appeal. O.O. Amuzie Esq. for the 1st and

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2nd Respondents adopted the joint Brief of argument and urged us to dismiss the appeal. G. E. Ejemai Esq. with A. I. Badamasi appeared for the 3rd Respondent and informed us that they filed no Brief. The 4th Respondent was absent and also not legally represented, though was served with Hearing Notice on 8/7/19.
The Notice of Appeal contains only one Ground with four particulars which is thus:
“GROUND ONE
ERROR IN LAW:
The Tribunal Below erred in Law when it refused, failed and/or neglected to consequently strike out paragraphs 2, 3, 4, 5, 7, 8, 9, 10, 13, 14, 16, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 32, 33, 36, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, (2) (a) (b) and (c) of the 1st and 2nd Respondents Petition filed on 16th March, 2019 and consequently dismissing the Petitions (sic) in its entirety in limine.
PARTICULARS OF ERROR:
i. That upon the striking out and/or dismissal of the Petition ? by Section 137 of the Electoral Act, 2010 (As amended), the Honourable Tribunal ought to have consequently strike (sic) out the aforementioned paragraphs and dismiss the

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entire Petition in limine without much ado.
ii. That not striking out the aforementioned paragraphs as it affects the Cross-Appellant breached the Cross-Appellant?s right to fair hearing.
iii. That the absence of any of the statutory Respondent in a Petition renders the Petition irredeemably incompetent and liable to the sole fate of dismissal in limine.
iv. The Tribunal below having held that “Accordingly, the Petition is struck out against the 3rd Respondent” ought to have consequently dismissed the Petition in its entirety”.

The Relief sought was:
”To allow the Cross-Appeal in its entirety and consequently dismiss the 1st and 2nd Respondents? Petition filed on 16th March, 2019 in limine without much ado”.

From the sole ground the Cross-Appellant distilled a lone issue for determination which reads:
whether the refusal of the Court below to consequently strike out paragraphs 2, 3, 4, 5, 7, 8, 9, 10, 13, 14, 16, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 32, 33, 36, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50,

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51, 52, 53, 54, 55, 56, 57, (2) (a) (b) and (c) of the 1st and 2nd Respondents Petition filed on 16th March, 2019 did not breach the Cross-Appellant?s right to fair hearing constitutionally guaranteed? (Distilled from Ground 1 of the Notice of Cross-Appeal).

Isah Seidu Esq, answered this issue in the affirmative to the effect that the Tribunal erred in Law in refusing to consequently strike out the aforementioned paragraphs as they contain allegations of facts directed at the Cross-Appellant who ceased being a party from 27th May, 2019 when the Petition was dismissed against it.

Learned Counsel argued that it is the principle of Law that nobody shall be guilty without being given an opportunity to defend himself; that everybody against whom an allegation is made must be confronted with the allegation so that he can offer his defence, relying on IZUOGU VS. UDENWA (2003) LPELR -9252 (CA) and EGOLUM VS. OBASANJO (1999) 7 NWLR (PT. 611) 397 and that any action contrary to the above stated principle of law will amount to violation of the time honoured principle audi alteram partem as enshrined in our Constitution.

?Seidu Esq.

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drew our attention to the paragraphs reproduced above which he claimed contain allegations directly made against INEC, and Paragraphs 1, 2, 2a, 2b and 2c containing reliefs sought against INEC. He quarreled with the fact that INEC, having been struck out from the Petition, no longer has the opportunity to defend the allegations leveled against it as contained in the 43 paragraphs of the Petition, which has been “willfully abandoned” by the 1st and 2nd Respondents. He cited LABOUR PARTY VS. BELLO (2017) 2 NWLR (PT. 1548) 145 at 167 para D and BELLO VS. INEC & ANOR (2010) 3 SCNA 1 at 22 both of which authorities held that no decision can be made against a person without hearing him and that a Court cannot make an order against a non-party.

Seidu Esq. then urged us to make an order of dismissal of the Petition before the Tribunal so that no orders will be made against INEC since it has been struck out from the proceedings pending before the Tribunal.

?Learned Counsel further more referred us to Section 137(3), (3a) and (3b) of the Electoral Act 2010 (as amended) which provisions he quoted and submitted that by the

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provisions INEC is a statutory and mandatory party to any (every) Election Petition thus making its non-joining or absence contrary to the provision of Section 137 of the Electoral Act, 2010 relying on A. D. C. VS. BELLO (2017) 1 NWLR (PT. 1545) 122 at 140; ANPP & ANOR VS. FARUK & ORS. (2008) LPELR?3783 (CA) and GREEN VS. GREEN (1987), 3 NWLR (PT. 61) 480 and vehemently contended that INEC (Cross-Appellant herein) is a necessary party who is both keen and interested in the subject?matter of the instant Petition and which absence the proceeding (before the Tribunal) could not be fairly and justly dealt with, thus where a party claims a relief which, when granted will be binding on a person who is not a party to the action such an action becomes incompetent, for failure to join an absolutely necessary party and therefore capable of vitiating or nullifying the proceedings.

In conclusion, Learned Counsel submitted and urged us to allow the cross appeal as same is meritorious on the grounds that:
(i) the Cross-Appellant ceased being a party since 27th May, 2019 when the

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Petition was dismissed against it and consequentially paragraphs of the Petition; paragraphs 2, 3, 4, 5, 7, 8, 9, 10, 13, 14, 16, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 32, 33, 36, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, (2)(a) (b) and (c) of the 1st and 2nd Respondents Petition filed on 16th March, 2019 (at pages 5 to 18) ought to have been struck out by the Court below.
ii. The absence of the Cross Appellant, a statutory Respondent renders the Petition moribund and unsustainable in Law.
iii. That the substance of the aforementioned paragraphs in the absence of the Cross-Appellant will inevitably breach the Cross-Appellant?s right to fair hearing.

O. O. Amuzie Esq. for the 1st and 2nd Respondents, in his joint brief of argument summarized the facts of this case and donated a single issue from the sole ground of appeal of the Cross-Appellant thus:
”Whether the cross-Appellant?s appeal and complaint therein are valid, competent and well founded in Law? (Ground 1).”
?
Amuzie Esq, submitted that ground 1 of the cross-Appellant?s

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notice of appeal from which the sole issue was formulated, does not relate to or flow from the Ruling of the trial Tribunal appealed against; that it is trite law that a ground of appeal must relate to the decision and must constitute a challenge to the ratio of the decision; that in this case there is no factual controversy between the parties to which the said ground 1 is related or tied in respect of which this Hon. Court can adjudicate.

Referring to pages 368 -369 of the Record, Learned Counsel stated that the Cross-Appellant at the Tribunal only simply applied for the dismissal of the Petition against it without more and never prayed for any paragraphs of the Petition to be struck out which request was acceded to by Tribunal, (Pages 372 -381 of the Record); that the issue of striking out any paragraphs of the Petition did not arise and the Tribunal did not pronounce on it. Consequently, submitted Amuzie Esq, by the authorities of DADA VS. DOSUNMU (2006) 18 NWLR (PT. 101) 134 at 165, WAEC VS. ADEYANJU (2008) 6 MJSC 1, 20?21 para G and OTU VS. A. C. B. (2008) 3 MJSC 191, 2015 Paras C?D, the sole issue formulated from an incompetent ground

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of appeal is incompetent, and so the submission made thereon amounts to naught. He urged us to so hold and strike out the sole issue.

It is further submitted that this appeal is not well founded in Law as Cross-Appellant ceases to be a party in the proceedings by virtue of the Ruling of the Tribunal delivered on 27/5/19, and therefore lacks the locus or competence to appeal as of right by virtue of Sections 246(1) (b) and 285(7) of the 1999 of the Constitution of the Federal Republic of Nigeria (as amended) (to be henceforth in this judgment referred to as ?the Constitution?); that the Cross-Appellant can only appeal as an interested party with the leave of Court, which it did not seek and obtain before filing this appeal; that there was no issue of denial of fair hearing by the Tribunal and so since the Court is not a father Christmas, it could not possibly have dished out to the Cross-Appellant what it did not ask for. As to the striking out of the paragraphs Learned Counsel stated that the issue was taken up by the 3rd and 4th Respondents before the Tribunal which ruling thereon was reserved till final judgment. Counsel then wondered what

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the interest of the Cross-Appellant is in this case, which as an umpire in the election, it ought to have been neutral. Amuzie Esq, then urged us to dismiss the Cross-Appeal by resolving the lone issue against the Cross-Appellant and in favour of the 1st and 2nd Respondents.
In conclusion, Learned Counsel urged us to either strike out or dismiss the Cross-Appeal with heavy cost against the Cross-Appellant on the grounds: –
1. That the lone ground of appeal and lone issue formulated therefrom are incompetent in Law.
2. That there is no competent appeal before this Honourble Court.
3. That the Cross-Appellant cannot appeal as of right, not being a party to the Petition any longer.
4. That the Cross-Appellant?s right to fair hearing was not breached in any form.
5. That the trial Tribunal lacks the necessary vires to grant prayers not specifically sought for by a party.

?In his reply brief to the 1st and 2nd Respondent?s brief Isah Seidu Esq. contended that the issue formulated by the 1st and 2nd Respondents did not arise from the lone ground of appeal and then urged us

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to strike out the same together with the submissions thereon, so as to determine the appeal on the sole issue donated by the Cross-Appellant alone, relying on page 2 of the 1st and 2nd Respondent’s brief of argument, pages 385 ? 386 of the Record of Appeal and EMEJURU VS. ABRAHAM (2019) 4 NWLR (PT. 1663) 541 at 558 paras E?F; OSSAI VS. WAKWAH (2006) 2 SCN 170 and A. G. LAGOS STATE VS. EKO HOTELS& ANOR (2006) 12 PT. 1 SCM 37, which learned counsel quoted.

It is the further submission of Isah Seidu Esq. that the 1st and 2nd Respondents? brief did not qualify to be a Respondent?s brief under Order 19 Rules 1, and 4(2) of the Rules of this Court, 2016 which Counsel reproduced, and urged us to so hold and deem the Cross-Appeal as having been conceded to by the 1st and 2nd Respondents and allow the Cross-Appeal referring to the following cases:
(1) FBN PLC VS. AKINYOSOYE (2005) 5 NWLR (PT. 918) 340 at 380 Paras B?G;
(2) ERAVWODOKE VS. U. B. T. H. M. B. (1993) 2 NWLR (PT. 277) 590 at 596 paras E?F;
(3) POLYVALENT (NIG.) LTD. VS. AKINBOTE (2010) 8 NWLR (PT. 1197) 506 at 561?

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562;
(4) UMARU VS. PAM (2010) 2 NWLR (PT. 1178) 404 at 417 paras B?C and
(5) N. L. N. G. VS. GREEN (2010) ALL FWLR (PT. 530) 1300 at 1309

Learned Cross-Appellant?s Counsel argued in the alternative that in case we hold that the 1st and 2nd Respondents? brief of argument qualifies as ?A Notice of Preliminary Objection to the Cross-Appeal?, then the points of Law argued therein are misconceived and inapplicable to the instant Cross-Appeal and ought to be discountenanced without much ado, describing same as spurious, referring us to AKPAN VS. BOB (2010) 10 SCN, at 26 -27 paras H, A?H. which deals with a ground of appeal being an error of law or facts.

Learned Counsel reiterated that the Tribunal, having dismissed the petition against the Cross-Appellant, and having struck out its name from the Petition, ought to have struck out all the paragraphs of the Petition which referred to it, as the failure of the Tribunal to do so has occasioned a miscarriage of justice. Furthermore, that by the authority of the case of BULAMA MALLAM SANUSI VS. BULANA MODU (1994) 5 NWLR (PT. 347) 732 at 739 para C and

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IFEBUZOR VS. NWABEZE (1998) 8 NWLR (PT. 560) 148 at 161 the refusal of the Tribunal to strike out the said paragraphs of the Petition has compelled the Cross-Appellant to remain a party to the Petition. He then concluded by urging this Court to allow the Cross-Appeal and discountenance the submissions of the 1st and 2nd Respondents as contrasting sharply with the intendments of the Rules of this Court and the settled Law.

RESOLUTION
ISSUE 1 BY THE CROSS-APPELLANT
?I am compelled to begin the resolution of this lone issue donated for determination from the single ground of appeal, with the observation that there is a novelty and strangeness in the nature of this appeal, which is incomprehensible. This is because on 24/5/19 the petition came up before the Tribunal on the date that pleadings had not wholly closed between the parties. Mr. Isah Seidu, this very learned counsel, raised a point that the pleadings had closed between the 3rd Respondent ? INEC ? the Cross-Appellant in this appeal, and the 1st and 2nd Respondents and urged the Tribunal to dismiss the Petition under Paragraph 18(4) of the 1st Schedule to the Electoral Act,2010 (as amended)  ?

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for the failure of the Petitioners (1st and 2nd Respondents herein) to have applied for a pre-hearing Notice as provided under paragraph 18(1) of same. There was no relief as to striking out any paragraphs of the Petition. The Tribunal adjourned the Ruling to 27/5/19, on which date it acceded to the 3rd Respondent and stuck out its name from the proceedings. Immediately after the Ruling was delivered, Counsel requested to address the Tribunal on the sustainability of the Petition with the exit of the 3rd Respondent. Tribunal ordered written addresses and the matter was adjourned to 1/6/19. That is where the proceedings stopped and the 3rd Respondent filed a notice of appeal as earlier indicated.
?
The novelty and strangeness of this appeal lies in the fact that it was the 3rd Respondent which triggered off the jurisdiction of the Tribunal to dismiss the Petition and strike it out from the proceedings without asking for anything more. Of course, the 1st and 2nd Petitioners filed an appeal against that Ruling. The Cross-Appellant failed, refused, or neglected to file its Cross appeal within that appeal, but decided to file a separate notice

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of appeal, describing itself as ?Cross-Appellant? without any appellant therein.

I have carefully scrutinized the ground of appeal from whence the issue was distilled, viz a viz the Ruling of the Tribunal. Tried as I could, I have not been able to find and see the nexus between the ground, and a fortiori, the issues and the Ruling complained of. As noted earlier there was no prayer or relief sought by the Cross-Appellant that the paragraphs of the Petition listed above be expunged from the Petition. After the dismissal of the Petition against the Cross-Appellant and the subsequent striking out of its name, the cross-appellant ceased to be a party to the Petition at that stage. It could not be heard to complain about the paragraphs of the Petition.
?
It is to be observed here that there is no ruling as to the written address ordered by the Tribunal before us. No appeal has been entered in respect to such ruling or judgment. Therefore I hold the firm view that the ground of appeal in this Cross-Appeal is not grounded on the Ruling, the subject matter of this appeal, and so is incompetent. Similarly the issue distilled from the ground of

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appeal has no foundation upon which to stand, because the ground of appeal as it is, is incompetent. See DADA VS. DOSUNMU (2006) LPELR ? 909 (SC) pages 32 -34 paras E?D.
The sole issue donated by the Cross-Appellant not being competent by reason of the incompetent ground of appeal from which it is distilled, is hereby struck out, and exciting with it are all the submissions made by Learned Counsel to the Cross-Appellant.

ISSUE 1 OF THE 1ST AND 2ND RESPONDENTS.
Having considered the submission of Learned Counsel to 1st and 2nd Respondents, I have no difficulty in agreeing with him that the Cross?Appeal is incompetent as it is not founded in Law. I am fortified in this view by the record of appeal where it is clear that the Cross-Appellant did not ask for the reliefs it is seeking in this appeal from the Tribunal. There is no Ruling or Judgment from which this Cross-Appeal emanated.
?This appeal was filed on 14/6/2019, 19 days after the Cross-Appellant had been struck out from the Petition by virtue of its application to be so struck out, and the Petition dismissed against it. It had ceased to be a party to the

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proceedings as at that date. If it had any grouse, the probable way is to seek leave of Court to appeal as an interested party as it lacks the competence to appeal as of right under Section 246(1) (b) and Section 285 (7) of the Constitution. I hold the firm view that the Cross-Appellant did not suffer any miscarriage of justice as it was not denied any right of fair hearing.

I resolve this issue in favour of the 1st and 2nd Respondents and against the Cross-Appellant. The net result of this appeal is that it lacks merit and is hereby dismissed by me. The Cross-Appellant shall pay Cost of N100,000.00 to the 1st and 2nd Respondent.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading the judgment delivered by my learned brother, ANDENYANGTSO, JCA.

The party that initiated the instant appeal – APPEAL NO. CA/OW/EPT/14/2019. i.e. the Independent National Electoral Commission (hereafter to be simply referred to as ?INEC”) described itself as ?Cross-Appellant? in the said appeal. This is against the backdrop of the fact that the said party, INEC, conceived that it was lodging an appeal

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against the ruling/decision of the National Houses of Assembly Election (hereafter to be simply referred to as “the Tribunal”) delivered 27/5/2019, in Election Petition No. EPT/AB/REP/008/2019 (hereafter to be referred to as ?the petition’). in the ruling in question, the Tribunal dismissed the petition against – INEC. The Petitioners who initiated the petition that was dismissed against the “Cross- Appellant? – INEC, appealed against the ruling of the Tribunal in APPEAL NO. CA/OW/EPT/10/2019. The Said Petitioners are the 1st and 2nd Respondents in the instant appeal described as a “cross-appeal” by – INEC.

This Court in its judgment delivered on 1/8/2019 in APPEAL NO. CA/OW/EPT/10/2019 considered tm issues in resolving the said appeal. The issue are:
”1. Whether there was a valid application necessitating the dismissal of he petition against the Respondent?
2. Whether the Tribunal was right in its decision dismissing the Petition against the 3rd Respondent?”

The Court in its judgment in question, resolved the two issues set out above. in favour of the Appellants therein, and who are the initiators of the petition which tie

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Tribune’ dismissed against the Cross-Appellant ? INEC. These parties are now and Respondents in the contrivance of a cross-appeal initiated by – INEC; which was restored as a party in the petition that was dismissed against it. by the Tribunal, in the judgment of this Court in APPEAL NO. CA/OW/EPT/1012019.

In the instant cross-appeal but which bears an appeal number different from the appeal of the Appellants in APPEAL NO. CA/OW/EPT/10/2019, the Court considered two issues. The first of the issues as stated in the leading judgment and which was said to have been formulated by the Cross-Appellant, i.e. INEC reads: –
“Whether the refusal Of the Court below to consequently strike out paragraphs, 2, 3, 4, 5, 7, 8, 9, 10, 13, 14, 16, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 32, 33, 36, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, (2) (a) (b) and (c) of the 1st and 2nd Respondents (sic) petition filed on 16th March, 2019 did not breach the Cross-Appellant’s right to fair hearing constitutionally guaranteed? (Distilled from ground 1 Of the Notice of Cross-Appeal).”
?
The second of the issues as stated in the

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leading judgment and which was said to have been formulated by the and 2nd Respondents reads thus: “Whether the Cross-Appellant’s appeal and complaint therein are valid, competent and well founded in law? (Ground 1)”
In the judgment delivered by this Court on 19/7/2019 in APPEAL NO: CA/OW/EPT/FHA/6/2019- NNAMDI IRO OJI & ANOR. V. HON. NKOLE UKO NDUKWE & ORS, I had cause to state in passing, to the effect that a cross-appeal must necessarily be situated or housed in the main or substantive appeal. Hence, that a main appeal and a cross-appeal invariably utilize the same record. This view would appear to find some support or credence in the case of HI-QUALITY BAKERY LTD V. LONGE (2018) LPELR-45173 (CA) wherein this Court, dwelling on the nature of “cross-appeal” stated per Adah, JCA; thus: –
“For our guide it is necessary to underscore here the nature and the principles governing cross-appeal. In an appeal, the Respondent has the goal of defending the appeal but where he is not satisfied with a finding of the trial Court that he considers fundamental to the Case, or where he seeks a reversal of a finding he can only seek redress

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in the Appeal Court by filing and arguing a cross-appeal. The filing of a cross-appeal does not relieve the Respondent of the task of defending the judgment on appeal, on all other findings therein that he is satisfied with. A cross-appeal can only be filed by a Respondent seeking to correct errors in the judgment or to set aside a finding which is crucial and fundamental to the case. xxx”
See also the case of DIAMOND BANK V. MOCOK ONU (NIG) LTD (2019) LPELR-46440 (CA) wherein this Court dwelling on “whether arguments in respect of a cross- appeal can be included in a brief for the main appeal” stated per Shuaibu, JCA; thus: –
“It is worthwhile to comment albeit briefly on the way and manner the cross-appellant crafted his argument in support of the cross-appeal and likewise the manner the cross-respondent responded to the cross-appeal. Usually, the respondent in whose favour the Court has given judgment cannot challenge the judgment in his favour. However, a respondent who has an issue against the judgment in his favour can raise the issue by way of cross-appeal or respondent notice

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pursuant to Order 9 Rule 1 of the Court of Appeal Rules 2016.
In the instant case, the respondent/cross-appellant distilled a lone issue from the three grounds of cross-appeal and married it together with issues for determination in the substantive appeal by numbering it as issue five. Order 19 Rule 7 of the Court of Appeal Rules 2016 provides that
“7. A Respondent may without leave, include arguments in respect of a cross-appeal or a respondent’s notice in his brief for the original appeal and the cross-appeal or respondent’s notice.”
Although, an argument in a cross-appeal may be included in the original appeal but it is desirable to distinctly identify issue(s) for determination in the original appeal and that for cross-appeal.
The respondent on its part who should ordinarily respond to the cross-appeal by way of cross-respondents brief, lumped everything together as appellants reply brief/reply to cross-appeal”. This is an inelegant way of responding to a cross. appeal. xxx”
Also, consider it pertinent to cite the case of ACN V. PETER (2011) LPELR – 13402

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(CA) wherein this Court dwelling on “who can file a cross-appeal and the attitude of Court to the filing of a cross-appeal instead of a substantive appeal” and “procedure to be adopted by the Court where a cross-appeal is interwoven with the main appeal” respectively, stated per Ogbuinya, JCA; thus: –
“l will now thrash out the objection against the competence of the cross-appeal. I agree, without reservations, with the submission of the learned counsel for the objectors that it is a successful party that files a cross appeal seeking to set aside or reverse a finding which is crucial and fundamental in a matter, see  xxxxxxxx. Hence, the Blacks (sic: Black’s) Law Dictionary, Seventh Edition, on page 94, defines cross-appeal as: “An appeal by the Appelle, usu. heard at the same time as the appellant’s appeal”. The same Blacks (sic: Black’s} Law Dictionary, Seventh Edition, on page 95, defines appelle as: “A party against whom an appeal is taken and whose role is to respond to that appeal, usu, seeking affirmance of the lower Court’s decision. Cf. APPELLANT”.
It can be discerned or garnered from the above highlights, when married with

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the facts of this appeal, that the cross-appellants, against whom the tribunal gave judgment, were/are not in the least appelles who ought to seek affirmation of the tribunal’s decision. They are supposed to be the appellators of appellants’ and, de jure, ought to file an appeal. It is also not in doubt that the appellants’ appeal was for the respondents/objectors, not the cross-appellants, to respond to it. It is the respondents/objectors that have the bounden duty, where necessary to file a cross-appeal, hence the prefix “cross”. The fact that the reliefs claimed by the appellants are symmetrical with those supplicated by the cross-appellants, on pages 395 and 406 of the record respectively, further justifies and fortifies my view that the latter should have filed an appeal, not a cross appeal. Even the case of lgwe V. Kalu (supra), on which the Learned Counsel for the cross appellants heavily relied On, does not help them an inch. This is because the two parties dissatisfied with a judgment in that case envisaged two opposing parties, not two parties in the same boat/camp in an action as in this appeal. In all, I hold the view that the cross-appellants

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ought to have filed a substantive appeal. Be that as it may, the filing of an appeal or a cross appeal falls within the remit or realm of practice and procedure governing appeal, regulated by the Rules. To this end, I will still take sanctuary in the crying need to do substantial justice and deploy the salvaging provision of Order 20 Rule 3(1) of the Rules to save the cross appellants’ cross appeal so as to hear it on its merits, xxx
While adopting this summary procedure, I am not oblivious of the law that a Cross appeal is independent of the main appeal and failure to hear it erodes a cross appellants right to fair hearing as engrained in Section 36 (1) of the 1999 Constitution, as amended, xxx. The law itself has sanctified this procedure where, as in this case, the main appeal and the cross appeals are interwoven with themselves. In the case of Unity Bank Plc. V. Bouari (supra), at 413, Tobi, JSC lucidly opined:
Learned counsel for the appellants argued that the Court of Appeal was wrong in dismissing the cross-appeal summarily without finding on

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the issues of law that were raised in the appellants’ cross appeal and expatiated in their brief of argument. While I concede that a cross-appeal is an independent appeal, having a life of its own in the appellant process, it could have some affinity with the main appeal as they criss-cross. There are instances where a decision of the main appeal affects and in fact disposes of the crux or fulcrum of the cross appeal. In such situations, it will be merely repetitive and will not serve any useful purpose for an appellate Court to go over the arguments raised by the cross appellant in his brief. In such situations, and in order to avoid repetition and superfluity, an appellate Court has the option to dismiss a cross-appeal summarily in the way the Court of Appeal did in this appeal. I do not see anything wrong procedurally in what the Court of Appeal did.
I was certainly emboldened by that binding pronouncement in attending to the cross-appeal summarily as I did.
All in all, it was for those reasons that I found no iota of merit in the cross-appeal.
Accordingly, I dismissed it, on 17/11/2011, and made the order in the main appeal which I

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wholly adopted in the ill-fated cross-appeal.”

I am of the considered view that in the light of the positions of this Court in the cases cited herein before, as well as the position of the Court in APPEAL NO. CA/OW/EPT/10/2019, to the effect that the petition of the 1st an 2nd Respondents was wrongly dismissed against the “Cross-Appellant” – INEC, by the Tribunal, the instant contrivance in which the said – INEC described itself as a “cross-appellant’ must be dismissed Summarily. This is more so as the ground of appeal in the said cross-appeal to wit:
“The Tribunal below erred in law when it refused, failed and/or neglected to consequently strike out paragraphs, 2, 3, 4, 5, 7, 8, 9, 10, 13, 14, 16, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 32, 33, 36, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, (2) (a) (b) and (c) of the 1st and 2nd Respondents (sic) petition filed on 16th March, 2019 and consequently dismissing the petitions (sic) in its entirety in limine.”
clearly or evidently, does not flow from, or arise from the ruling f the Tribunal and a fortiori, the issue formulated for the determination of

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the said cross appeal by the “Cross- Appellant” (or the separate substantive appeal; if the Court bends over backwards in the interest of justice to dwell on the merit of the said contrivance called a cross-appeal), also cannot be said to arise from a ground of appeal which has no foundation or basis in the ruling of the Tribunal. In other words, the ground of appeal in actuation of the grouse of the “Cross-Appellant” being invalid cannot birth a proper issue for determination.

Indeed, I cannot but observe that the “Cross-Appellant’ – INEC, has glaringly shown a poor understanding of the purpose of a cross-appeal and/or substantive appeal by lodging a cross-appeal or an appeal by whatever nomenclature or description, against the non-striking out of any portion, part or paragraphs of the petition of the 1st and 2nd Respondents which the Tribunal had dismissed against it – INEC. This is because, aside from the fact that the Tribunal was not confronted with any request or application in that regard, commonsensically, the “Cross-Appellant” should has known that the dismissal Of the whole of the petition against it – INEC, as the Tribunal did, by

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necessary implication rendered every and all averments in the petition as they relate to the said ‘NEC, prostrate or lacking in foundation; the whole of the said petition having been dismissed against it – INEC.

It is for the reasons stated above, that I am in total agreement with the position of his lordship in the leading judgment that the cross-appeal of INEC, i.e. Cross-Appellant, lacks merit and I hereby dismiss the same was done in the leading judgment.

I however don’t consider it appropriate to order any costs to be paid by the “Cross- Appellant” – ‘INEC as the said party being an agency of the Federal Government of Nigeria, is exempted from paying costs by virtue of Order 12 Rule 2 of the 2016 Rules of this Court.

RITA NOSAKHARE PEMU, J.C.A.: I agree.

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Appearances:

Isah Seidu, Esq. with him, O.F. Igboanugo, Esq.For Appellant(s)

O.O. Amuzie, Esq. for 1st and 2nd Respondents.

G. E. Ejemai, Esq. with him, A. I. Badamasi, Esq. for 3rd Respondent.

4th Respondent was absent and unrepresented
For Respondent(s)

 

Appearances

Isah Seidu, Esq. with him, O.F. Igboanugo, Esq.For Appellant

 

AND

O.O. Amuzie, Esq. for 1st and 2nd Respondents.

G. E. Ejemai, Esq. with him, A. I. Badamasi, Esq. for 3rd Respondent.

4th Respondent was absent and unrepresentedFor Respondent