APPEAL: Can a Respondent Attack the Judgment of the Court Without Filing a Cross-Appeal?

CASE TITLE: DIRIWARI v. INEC & ORS (2023) LPELR-59990(CA)

JUDGMENT DATE: 8TH FEBRUARY, 2023

JUSTICES: ONYEKACHI AJA OTISI, JCA

FATIMA OMORO AKINBAMI, JCA

MUHAMMAD IBRAHIM SIRAJO, JCA

DIVISION: LAGOS

PRACTICE AREA: APPEAL

FACTS:

This appeal was lodged against the judgment of the Federal High Court, Lagos Division, Coram C.J. Aneke, J., delivered on December 7th, 2022, wherein the trial Court dismissed the Appellant’s suit, holding that the 2nd Respondent does not have any candidate for the election of Member representing Ajeromi/Ifelodun Federal Constituency, Lagos State for the 2023 General Elections, having failed to conduct a valid primary election.

The 2nd Respondent conducted a primary election on 22/5/2022 to select and nominate the 2nd Respondent’s candidate for Ajeromi/Ifelodun Federal Constituency of Lagos State ahead of the general elections in 2023. The Appellant, who was an aspirant, alleged that he contested in the said primary election and won the same but that he was not declared the winner. The Appellant alleged that the result of the said election, as declared and recorded by the Returning Officer and Electoral Officer, who were appointed and commissioned by the National Working Committee of the 2nd Respondent to conduct the said primary election, was withheld by some national officers of the 2nd Respondent.

Aggrieved by the action of the 2nd Respondent, the Appellant wrote a complaint to the National Chairman of the 2nd Respondent. While waiting for National Working Committee to reverse the said decision and to formally declare the Appellant as the winner of the 2nd Respondent’s said primary election held on 22/5/2022, and then to forward the Appellant’s name to the 1st Respondent as the 2nd Respondent’s candidate for Ajeromi/Ifelodun Federal Constituency of Lagos State in the forthcoming general elections in 2023, the Appellant was shocked to hear that the 2nd Respondent submitted and forwarded the name of the 4th Respondent to the 1st Respondent as the 2nd Respondent’s candidate for Ajeromi/Ifelodun Federal Constituency on 17/6/2022.

​Further aggrieved by the decision of the 2nd Respondent, the Appellant instituted action by Writ of Summons and Statement of Claim at the trial Court on 23/6/2022 challenging the said decision. The 4th Respondent, who asserted that the only valid primary election held for the purpose of electing the 2nd Respondent’s candidate for Ajeromi/Ifelodun Federal Constituency, was held on 23/5/2022 in which he emerged the winner and was issued with a Certificate of Return, filed a Counterclaim.

At the conclusion of the hearing, the trial Court dismissed the Appellant’s suit as well as the 4th Respondent’s Counterclaim, holding that the 2nd Respondent did not conduct any valid primary election, therefore had no candidate for the House of Representatives, Ajeromi/Ifelodun Federal Constituency for the 2023 General Elections.

Dissatisfied with a portion of the said judgment of the trial court, the Appellant lodged this appeal.

ISSUES:

The appeal was determined on;

1. Whether the trial Court was right when it held that the 2nd Respondent having not conducted a valid primary election does not have any candidate for the House of Representatives Ajeromi/Ifelodun Federal Constituency of Lagos State, 2023 General Elections.

2. Whether the trial Court was right when It held that the Appellant did not prove his case that he won the primary election of the 2nd Respondent conducted on 22nd May, 2022.

3. Whether the Appellant’s right to a fair hearing was breached by the trial Court for failure to pronounce on the Appellant’s reply and Exhibit P31 filed 28th November 2022.

COUNSEL SUBMISSIONS:

Issue 2 raised by the 4th Respondent questioned whether the trial court was justified in its ruling that there was insufficient evidence to prove the occurrence of a primary election by the 2nd Respondent for the House of Representatives, Ajeromi/Ifelodun Federal Constituency for the 2023 General Elections. Issue 3 raised by the 4th Respondent questioned whether the trial court’s dismissal of the counter-claim made was unreasonable, considering the admissible evidence presented before the court.

According to the 4th Respondent, the 2nd Respondent had chosen to conduct an indirect primary election, with a schedule outlined in Exhibits P21 and P22, which indicated that the primaries would take place between May 22 and May 24, 2022. However, the schedule of elections was subject to change and was an internal matter for the political party. It was observed that the scheduled primaries did not occur in certain Federal Constituencies in Lagos on May 22, 2022. The 1st Respondent’s State Electoral Officer (DW1) testified to this fact and submitted the Election Monitoring Report, which specified the constituencies where the primaries were held on May 22 and 23, 2022. DW1 confirmed that no primaries took place in Ajeromi/Ifelodun Federal Constituency on May 22, 2022. The 4th Respondent contends that while the trial court correctly determined the absence of primaries on May 22, 2022, it should have proceeded to examine the validity of the primaries that occurred on May 23, 2022.

In the Appellant’s Reply Brief to the 4th Respondent’s Brief of Argument, he challenged the above Issues 2 and 3 as framed by the 4th Respondent on the ground that they did not arise from the grounds of appeal. That the 4th Respondent, who did not file a cross-appeal, cannot raise an issue for determination outside the grounds of appeal filed by the appellant. The Court was urged to strike out the said Issues 2 and 3 for being incompetent, citing Okafor v Effiong (2017) 11 NWLR (PT 1577) 519 at 535; Lawal v APC (2019) 3 NWLR (PT 1658) 102; Afupe v State (2020) 17 NWLR (PT 1754) 381 at 403.

DECISION/HELD:

In the final analysis, the appeal was dismissed.

RATIO:

​APPEAL – DUTY/ROLE OF A RESPONDENT: Role of a respondent to an appeal

“It is trite that the role of a respondent in an appeal is to defend the judgment of a lower Court and not to assist the appellant in attacking such a judgment and seeking that it be set aside by the appellate Court; Tourist Co. of (Nig) Ltd v. Neo-Vista Properties Ltd & Ors (2022) LPELR-58910(SC); NBCI v. Integrated Gas (Nig) Ltd & Anor (2005) LPELR-2016(SC); Kayili v. Yilbuk & Ors (2015) LPELR-24323(SC). The respondent is to support the judgment on appeal. The exceptions to this general duty is where the respondent intends to attack or to challenge the judgment on a particular finding then he files a cross-appeal, or where a respondent supports the judgment, but wants it affirmed on grounds other than those relied upon by the lower Court, in which case he files a respondent’s notice; Ammani v. Balarabe & Anor (2022) LPELR-58906(SC);

Minister of Petroleum & Mineral Resources & Anor v. Expo-Shipping Line (Nig) Ltd (2010) LPELR-3189(SC); Arisons Trading & Engineering Co Ltd v. Military Governor of Ogun State & Ors (2009) LPELR-554(SC). Aside from these two exceptions, the respondent must maintain his role of defending the judgment.

For these reasons, Issues 2 and 3 as formulated by the 4th Respondent, are incompetent and are hereby struck out.” Per OTISI, J.C.A.