HON. KPAM JIMIN SOKPO v. HON. JOSEPH TERFA ITYAV & ORS
(2019)LCN/13842(CA)
In The Court of Appeal of Nigeria
On Monday, the 4th day of November, 2019
CA/MK/EP/HR/44/2019
RATIO
WHEN A CROSS OF APPEAL IS FILED OUT OF TIME
Going by the authority of Buhari V Obasanjo supra., the cross appeal in this instance was filed out of time. This is because the decision of the tribunal was delivered on 6/9/2019 but the notice of cross ? appeal was filed on 6/10/2019; a period of 29 days after the decision.
That however is not the end of the matter. I must visit the case of Aregbesola V Oyinlola (2011) 9 NWLR (Pt. 1253) 458, in which the respondents filed a notice of cross ? appeal against an aspect of the judgment of the tribunal. An objection was raised to the effect that the cross ? appeal was filed out of time. This Court referred to Paragraph 1 of the Election Petition and Court Practice Directions, No. 2 of 2007, which like the current Practice Directions prescribed 21 days from the date of the decision appealed against for the filing of an appeal. This Court thereafter dwelt on the case of Buhari V Obasanjo supra and fell back on the provisions of Section 24(2)(a) of the Court of Appeal Act to hold that the period of 3 months provided for the filing of appeal applied to the notice of cross appeal; and that therefore it was filed within time.
It must be stated that by Section 285 (7) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) an appeal from a decision of an election tribunal shall be heard and disposed of within 60 days from the date of the delivery of the judgment of the tribunal. In the light of this new constitutional dispensation, falling back on the provision of Section 24(2)(a) of the Court of Appeal 2004 which prescribes three months for giving of notice of appeal against a final decision in a civil matter will be working against the letter and spirit of Section 285(7) of the Constitution. We must therefore resort to paragraph 6 of the Election Tribunal and Court Practice Directions, 2011 to determine the point under consideration.
Senior Counsel for the cross appellant referred this Court to PDP V Sylva (2012) All FWLR (Pt. 637) 606, 627 where it was observed by the Supreme Court that a cross appeal is filed after an appeal has been filed. The dictum by the Supreme Court did not decide on the time for filing of a cross appeal in an election matter and so it provides no guide for the resolution of the point at hand.
In Igwe V Kalu (2002) LPELR ? 1455 (SC) 17 Ogwuegbu, JSC, held that,
A cross appeal arises where two parties to a judgment are dissatisfied with it and each accordingly appeals. The appeal of each is called cross appeal in relation to that of the other. Each appeal is an independent and separate complaint by the parties.?
Therefore a cross appeal is an appeal by itself and in the con of an election petition, it falls within the contemplation of paragraph 6 of the Election Tribunal and Court Practice Directions, 2011.
The cross ? appeal, as I have already shown, was not filed within the time prescribed. PER JOSEPH EYO EKANEM, J.C.A.
JUSTICES
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
HON. KPAM JIMIN SOKPO Appellant(s)
AND
1.HON. JOSEPH TERFA ITYAV
2.ALL PROGRESSIVES CONGRESS (APC)
3.PEOPLES DEMOCRATIC PARTY (PDP)
4.INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): The 1st and 2nd cross respondents by election petition No. EPT/BN/R/05/2019 questioned before the National and State Houses of Assembly Election Tribunal, Makurdi, the election and return of the cross appellant in the polls held on 23/2/2019 for the Member representing Buruku Federal Constituency in the House of Representatives. The tribunal dismissed the petition on 6/9/2019.
Aggrieved by the decision, the 1st and 2nd cross respondents appealed to this Court by means of a notice of appeal. I take judicial notice of the fact that the appeal was numbered CA/MK/EPT/HR/37/2019. The cross appellant filed a notice of cross appeal on 9/10/2019 against the part of the decision of the tribunal which dismissed the cross appellants preliminary objection to the preliminary objection.
Briefs were filed and exchanged between the cross appellant and the 1st cross respondent. The 1st and 2nd cross respondents filed a notice of preliminary objection challenging the competence of the cross appeal.
At the hearing of the appeal on 30/10/2019, K. Olowookere, Esq. for the 1st and 2nd cross respondents sought for and was granted leave to argue his preliminary objection. He referred to his argument thereon at pages 3 5, paragraphs 4.02 4.14 of the 1st cross respondents brief of argument. He adopted the same in urging the Court to strike out the notice of cross appeal.
In response, Chief S.T. Hon (SAN) for the cross appellants referred to and relied on his reply to the preliminary objection at pages 2 10.
In the course of hearing arguments of the appeal, the Court invited counsel to address it on one question, to wit;
Considering the Election Tribunal and Court Practice Directions, 2011 was the notice of cross appeal validly brought?
Hon (SAN) for the cross appellant referred to and relied on PDP V Sylva (2012) All FWLR (Pt. 637) 606, 627 and Aregbesola V Oyinlola (2011) 9 NWLR (Pt. 1253) 458, 624 ? 626. He stated that the main appeal was filed on the very last day for doing so and that it was therefore not possible for the cross appellant to have filed his cross appeal before being served with the notice of appeal. He noted that the Election Tribunal and Court Practice Directions do not mention cross ? appeal and that a cross ? appeal is different from the substantive appeal in all ramifications.
Olowookere, Esq. for the 1st and 2nd cross respondents referred to paragraph 6 of the Election Tribunal and Court Practice Directions, 2011 which prescribes a period of 21 days for the filing of notice of appeal against the decision of an election tribunal. He pointed out that while the judgment the subject of the cross appeal was delivered on 6/9/2019, the cross appeal was filed on 6/10/2019 which is beyond the time prescribed.
In the case of Buhari V Obasanjo (2005) 13 NWLR (Pt. 941) 1, a similar issue as the one on hand arose. The 4th and 5th respondents/cross appellants filed a cross appeal against an aspect of the judgment of the Court of Appeal which dismissed the petition of the 1st and 2nd appellants/cross respondents against the election of the 1st respondent as the winner of the Presidential election in 2003. The 1st and 2nd appellants/cross respondents objected to the cross appeal on the basis that it was brought outside the 21 days allowed after the delivery of judgment of the Court of Appeal as provided for in Section 138 of the Electoral Act, 2002. The Supreme Court held that the provisions of Section 138 of the Electoral Act, 2002 (now Section 143(1) and (2) of the Electoral Act, 2010 as amended) were inapplicable to the cross appeal as the Court of Appeal had declared the person returned by INEC validly elected. At page 180 of the report, Uwais, CJN, opined that,
In the absence of any specific provision of the Electoral Act, 2002 as to the time for giving notice to appeal as such and in the light of paragraph 51 of the procedure for Election Petition, I hold that the provisions of Section 27(2) (a) of the Supreme Court Act applies.?
In other words, in the absence of any specific provision in the Electoral Act, 2002 as to time of giving notice of appeal, the Supreme Court fell back on the provision of Section 27(2)(a) of the Supreme Court Act which prescribes a period of 3 months for filing of appeals and held that the cross appeal was filed within time. In the current legal regime, paragraph 6 of the Election Tribunal and Practice Directions, 2011 provides that,
The Appellant shall file in the Registry of the Tribunal his notice and grounds of appeal within 21 days from the date of the decision appealed against.
Going by the authority of Buhari V Obasanjo supra., the cross appeal in this instance was filed out of time. This is because the decision of the tribunal was delivered on 6/9/2019 but the notice of cross ? appeal was filed on 6/10/2019; a period of 29 days after the decision.
That however is not the end of the matter. I must visit the case of Aregbesola V Oyinlola (2011) 9 NWLR (Pt. 1253) 458, in which the respondents filed a notice of cross ? appeal against an aspect of the judgment of the tribunal. An objection was raised to the effect that the cross ? appeal was filed out of time. This Court referred to Paragraph 1 of the Election Petition and Court Practice Directions, No. 2 of 2007, which like the current Practice Directions prescribed 21 days from the date of the decision appealed against for the filing of an appeal. This Court thereafter dwelt on the case of Buhari V Obasanjo supra and fell back on the provisions of Section 24(2)(a) of the Court of Appeal Act to hold that the period of 3 months provided for the filing of appeal applied to the notice of cross appeal; and that therefore it was filed within time.
It must be stated that by Section 285 (7) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) an appeal from a decision of an election tribunal shall be heard and disposed of within 60 days from the date of the delivery of the judgment of the tribunal. In the light of this new constitutional dispensation, falling back on the provision of Section 24(2)(a) of the Court of Appeal 2004 which prescribes three months for giving of notice of appeal against a final decision in a civil matter will be working against the letter and spirit of Section 285(7) of the Constitution. We must therefore resort to paragraph 6 of the Election Tribunal and Court Practice Directions, 2011 to determine the point under consideration.
Senior Counsel for the cross appellant referred this Court to PDP V Sylva (2012) All FWLR (Pt. 637) 606, 627 where it was observed by the Supreme Court that a cross appeal is filed after an appeal has been filed. The dictum by the Supreme Court did not decide on the time for filing of a cross appeal in an election matter and so it provides no guide for the resolution of the point at hand.
In Igwe V Kalu (2002) LPELR ? 1455 (SC) 17 Ogwuegbu, JSC, held that,
A cross appeal arises where two parties to a judgment are dissatisfied with it and each accordingly appeals. The appeal of each is called cross appeal in relation to that of the other. Each appeal is an independent and separate complaint by the parties.?
Therefore a cross appeal is an appeal by itself and in the con of an election petition, it falls within the contemplation of paragraph 6 of the Election Tribunal and Court Practice Directions, 2011.
The cross ? appeal, as I have already shown, was not filed within the time prescribed.
Before reaching the denouement of this judgment, I must say that even if we were to hold that the cross appeal was validly filed, the same would still not survive. This is because this Court has before now dismissed the appeal No. CA/MK/EP/HR/37/2019, of which this cross appeal is a sister appeal, in favour of the present cross appellant. In Ihedioha V Okorocha (2016) 1 NWLR (Pt. 1492) 147 (decided by a full panel of the Supreme Court) Okoro, JSC stated at pages 182 183 thus:
However, in view of the outcome of the main appeal, the benefit of which majorly inures to the 1st and 37th respondents (cross appellants), the cross-appeal has become academic and spent.?
Ariwoola, JSC, at page 205 held that,
with the result of the appeal which is in favour of the cross-appellants herein, their cross ? appeal becomes unnecessary, superfluous and mere academic which the Court should not and does not indulge in?.
In the light of all that I have said so far, I come to the conclusion that the cross ? appeal is incompetent or a mere academic pursuit. I accordingly strike it out.
I assess the costs of the cross appeal at N100,000.00 in favour of the 1st and 2nd cross respondents and against the cross appellant.
ITA GEORGE MBABA, J.C.A.: I agree
ONYEKACHI AJA OTISI, J.C.A.: I had the oppourtunity to read in advance a copy the lead judgment just delivered by my learned brother Joseph E. Ekanem striking out this cross appeal. I completely agree that the cross appeal was filed out of time; and in the light of the decision in CA/MK/EP/HR/37/2019, it is now merely academic.
I also strike out this cross appeal and abide by the orders in the lead judgment.
Appearances:
Chief S.T. Hon (SAN) (with him, Messrs M.I. IJdam, B.A. Iorheghem, A. Tijah, M.T. Ageba and E.N. DuFor Appellant(s)
K. Olowookere, Esq. (with him, Messrs l.c. Ogugua and A. Theophilus) for 1st and 2nd res
