The Cross-Appeal instituted against the judgment of the Appeal Court by Governor Peter Mbah of Enugu state and his party, the People’s Democratic party, has been dismissed.
Daily Gazette recall that Peter Mbah had on the 23rd November 2023 filed a cross-appeal with the suit no; SC 1153 against the judgment of Court of Appeal sitting in Lagos which was delivered in his favour.
The appellants, Chijioke Edeoga and Labour party filed two appeals at the supreme Court. While the main appeal is challenging the judgment of the Court of Appeal that affirmed the judgment of the tribunal, the second appeal is against the judgment of the Court of Appeal that allowed the cross appeal filed by Mbah in respect of the four polling units where votes of PDP were cancelled by the Tribunal.
In the main appeal, the Appellants urged the Supreme Court admit the evidence of the appellants’ subpoenaed witnesses particularly the official witnesses as the provisions of paragraph 4(5) of the 1st Schedule of the Electoral Act 2022 does not apply to such official witnesses and as such their witness statement on oath are not contemplated by law to be filed alongside with the petition.
The Appellants’ counsel further made distinction between official witnesses and expert witness and invited the apex court as a policy court to overrule it’s decision in Peter Obi v. INEC & ors pursuant to Order 6 Rule 5(4) of the Supreme Court Rules.
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Appellants argued that the provisions of paragraph 4 (5) of the 1st Schedule to the Electoral Act 2022 ought not to be interpreted in a manner that will result in absurdity or breach of party’s rights to fair hearing by depriving a party the right to benefit from the evidence of official witnesses who appear in obedience to subpoena.
According to their arguments, if the Supreme Court maintain the position that every witness statement on oath must accompany a petition including that of of the official witnesses, it will inflict hardship and injustice upon generation to come.
The Supreme Court after hearing the appeal on Monday, declared the cross-appeal ‘frivolous, vexatious’ and dismissed same.
According to a lawyer, cross appeal arises where a plaintiff or defendant in a case which proceeded to Judgement, though happy that the judgment is in his/her favour, is not comfortable with other findings of fact made by the court, and which he wants a higher court to set aside.
For example, the PDP though happy that they got a favourable judgment at the tribunal could file a cross appeal disagreeing with the decision of the tribunal to cancel some of their votes and allocate them to the Labour Party.
The Labour Party could also file a cross appeal where the tribunal or the Court of Appeal made a finding of fact which on the surface appears favourable but which could cause problems in future. Parties resort to cross appeals to elicit a specific pronouncement from a higher court on issues not well resolved thereby laying them to rest. Failure to cross appeal when necessary, could establish what is called issue estoppel and which could serve as a precedent in subsequent cases.
