IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 7th of February, 2014
SC.20/2013
BETWEEN
ALL PROGRESSIVE GRAND ALLIANCE (APGA). .... Appellant
V.
1. SENATOR CHRISTIANA N.D. ANYANWU. . ......... Respondents
2. HON. INDEPENDENCE CHIEDOZIEM OGUNEWE
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
REPRESENTATION
PRINCE ORJI NWAFOR-ORIZU with S.N. ANICHEBE ESQ., ESTHER ABBEY-OLLO (MRS.), F.N. OGUAJU ESQ., NNENNA NWAFOR-ORIZU (MISS), S.N. OBINNA ESQ., NETOCHUKWU NZEWI (MISS), ENO ETIENAN (MISS) and U.C. NDUBUISI ESQ. for Appellant
EMEKA NWAGWU ESQ. with A.I. NWACHUKWU ESQ. for the 1st Respondent.
K.C. NWUFO ESQ. with N. NWACHUKWU ESQ. for the 2nd Respondent.
A.T. UDECHUKWU ESQ. with UDOKA UGWU ESQ. for the 3rd Respondent.
MAIN JUDGMENT
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. (Delivering the Leading Judgment): T
his is an appeal against the judgment of the Court of Appeal Owerri Division (the lower court) delivered on 9/11/2012 allowing the cross appeal filed by the 2nd respondent herein (HON. INDEPENDENCE OGUNEWE), who was the 1st respondent/cross appellant at the lower court, setting aside the judgment of the Federal High Court, Owerri Judicial Division (the trial court) delivered on 29/3/2011 and remitting the case to the Federal High Court, Owerri for trial on the merit.
By an originating summons filed on 11/2/2011 before the trial court, the 2nd respondent herein, HON. INDEPENDENCE OGUNEWE sought the determination of a number of questions and consequential reliefs in respect thereof against (i) The All Progressives Grand Alliance (APGA), the Appellant herein, (ii) INEC, the 3rd respondent herein and (iii) SENATOR CHRITIANA N.D. ANYANWU, the 1st respondent herein. The thrust of the claim was that the plaintiff, HON. INDEPENDENCE OGUNEWE, is a member of APGA and contested the primary election for the Imo Senatorial Zone to represent the Zone in the 2011 general elections. That the primary election took place on 14/1/2011 with three names indicated on the ballot but only two candidates, the plaintiff and one Chief Nick Oparandu were present and physically contested the election and that he (plaintiff) won the election. It was his contention that SENATOR CHRISTIANA ANYANWU, whose name was also on the ballot, was not a member of APGA on 14/1/2011 when the primary elections were held, as she was, at the time an active member of the Peoples Democratic Party (PDP) and in fact participated in the presidential primary election of that party held at the Eagle Square, Abuja from 13th - 14th January 2011.
In their counter affidavits, appellant and the 1st respondent herein averred that the 1st respondent's name was included on the ballot on 14/1/2011 because she had joined the party after duly resigning her membership of the PDP. Her letter of resignation from the PDP and her membership card for APGA were exhibited to their respective counter affidavits. The appellant also averred that the 1st respondent was present and duly contested the primary and won the election with the highest number of votes.
In determining the originating summons, the learned trial Judge formulated three issues for determination:
1. "Whether the use of Originating Summons by the Plaintiff is appropriate in the circumstances and on the facts of this case.
2. If the answer to issue one is in the affirmative whether the plaintiff has proved this case on the preponderance of evidence; and
3. If the answer to issue No, 1 is in the negative, what is the appropriate order to make in the peculiar circumstances of this case".
In a considered judgment delivered on 29/3/2011, the learned trial Judge held that having regard to the contentious nature of the suit, the originating summons procedure was not the appropriate method of instituting the action. However, rather than order the filing of pleadings, the court upon the consideration of Sections 31 (1) and 87 (11) of the Electoral Act 2010 (as amended), struck out the suit on the ground that nothing would be gained by ordering pleadings since the general elections were scheduled to take place in 7 days' time, The 3rd defendant (1st respondent) herein, was dissatisfied with the order striking out rather than dismissing the suit and filed a notice of appeal against it at the lower court. The plaintiff (2nd respondent herein) was also dissatisfied with the decision and filed a cross appeal. The main appeal was dismissed while the cross appeal was allowed. The 1st respondent herein was dissatisfied with the dismissal of the appeal and filed a further appeal to this court. The appeal in respect thereof is Appeal No. SC.21/2013; SENATOR CHRISNANA N.D. ANYANWU V. HON. INDEPENDENCE CHIEDOZIE OGUNEWE & ORS which was heard along with the instant appeal.
In the cross appeal, which is the subject of the instant appeal, the cross appellant formulated two issues for determination by the lower court, to wit:
1. Whether an order striking out of the suit instead of an order for filing pleadings was proper in the circumstances of the suit?
2. Whether it was proper for the lower court to have struck out the suit merely because the National Assembly Elections were scheduled to hold seven days from the delivery of the judgment?
The lower court in the introductory part of its judgment in respect of the cross appeal noted that the 2nd respondent, now the present appellant, raised the issue of the jurisdiction of the trial court to entertain the suit having regard to the fact that the plaintiff's claim was in respect of membership of a political party. However, in resolving the issues in the cross appeal, it did not address the issue of jurisdiction. It allowed the cross appeal, set aside the judgment of the trial court and remitted the suit to the Federal High Court for trial on the merits. The appellant is most dissatisfied with this decision and filed a notice of appeal on 14/1/2013 containing 3 grounds of appeal.
In compliance with the rules of this court, the parties duly filed and exchanged their respective briefs of argument. The Appellant's brief, settled by PRINCE ORJI NWAFOR-ORIZU is dated and filed on 15/3/2013. He also filed a Reply brief on 15/3/2013. EMEKA O. NWAGWU ESQ. settled the 1st Respondent's brief, which was filed on 22/3/2013. The 2nd respondent's brief filed on 1/3/2013 was settled by K.C. NWUFO ESQ. Finally the 3rd respondent's brief, settled by A.T. UDECHUKWU ESQ. was filed on 3/3/2013.
At the hearing of the appeal on 14/11/2013 learned counsel adopted and relied on their respective briefs and urged their respective positions on the court. In urging this court to allow the appeal, Prince Nwafor-Orizu cited two additional authorities on the circumstances in which the court has jurisdiction to adjudicate on disputes arising from a party's primary election. They are:
Uwazurike V. Nwachukwu (2013) 3 NWLR (Pt.1342) 503 and Lado V. C.P.C. (2011) 18 NWLR (Pt.1279) 689. In urging the court to dismiss the appeal, K.C. Nwufo Esq. learned counsel for the 2nd respondent cited the additional authority of: Buhari V. Obasanjo (No.2) (2003) 9 -11 SCNJ 74 in respect of the position taken by the 1st and 3rd respondents. A.T. Udechukwu Esq., on behalf of the 3rd respondent urged us to allow the appeal on the ground that the concurrent findings of the two lower courts were that the appellant's case before the trial court was on the issue of membership of a political party, which the court had no jurisdiction to entertain.
The appellant formulated two issues for the determination of this appeal as follows:
1. Is it correct for the court below to determine this appeal on merit without settling the challenge of jurisdiction of the court below to hear and determine the suit itself.
2. Whether the question of membership of a political party is justiciable to invoke the jurisdiction of the court below to determine same under the procedure enacted by Section 31(5) of the Electoral Act, 2010 or at all?
The 1st and 3rd respondents adopted the issues formulated by the appellant.
The 2nd respondent distilled the following two issues as arising for determination in the appeal:
1. Whether there was any proper challenge of the jurisdiction of the court below to hear and determine the suit itself that would have prevented the court below to determine the appeal on the merit?
2. Whether the question of membership of a political party avails an aspirant in a primary election, to enable him invoke the jurisdiction of the court below to determine same under the provisions of the Electoral Act, 2010, the provisions of the 1999 Constitution of Nigeria (as amended) or any other enactment?
It is relevant to observe at this stage that the 2nd and 3rd respondents raised preliminary objections in their briefs of argument. No leave was sought to move them at the hearing of the appeal. The preliminary objections are accordingly deemed abandoned. See: A.G. Rivers State V. Ude (2006) 17 NWLR (pt. 1008) 436; Magit v. University of Agriculture, Makurdi & Ors. (2005) 19 NWLR (pt. 959) 211 @ 239 H-D; Tiza v. Begha (2005) 15 NWLR (pt. 949) 616; Nsirim (1990) 5 SCNJ 174.
The appeal shall be determined on the issues formulated by the appellant.
Issue 1
In support of this issue learned counsel for the appellant submitted that the appellant, as 2nd Respondent in the court below, challenged the jurisdiction of the trial court to hear and determine the appeal having regard to the fact that the suit was in respect of membership of a political party. Relying on the authority of PDP Vs Timipre Sylva & 2 Ors. (2012) 13 NWLR (pt. 1316) 85, he submitted that the membership of a political party is non-justiciable. He submitted that in its judgment the lower court made a finding that the appellant herein raised the question of the jurisdiction of the court to entertain the suit. He also noted that it was raised as issue. 2 in the appellant's brief in response to the Cross-Appeal. He submitted that notwithstanding the foregoing, the lower court proceeded to determine the appeal without first determining the question of jurisdiction one way or the other. He submitted that the issue of jurisdiction could be raised at any stage of the proceedings, even viva voce. He referred to: Petrojessica Enterprises Ltd. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (pt. 244) 675; SLB Consortium Limited v. NNPC (2011) 9 NWLR (pt. 1252) 317 @ 332 H. He submitted that the law is settled that the issue of jurisdiction, once raised must be determined first before the court considers any other issue. He referred to: Nwankwo V. Yar'Adua & Ors (2010) 12 NWLR (pt. 1209) 518; Issac Obiuweubi v. Central Bank of Nigeria (CBN) (2011) 7 NWLR (Pt. 1247) 465 @ 494 D & 294 E - F: First Bank of Nigeria Plc. v. T.S.A. Industries Ltd (2010) 15 NWLR (Pt. 1216) 247.
He submitted that the jurisdictional issue being raised by the appellant is not the question of the pre-election matter being brought seven days to the election or whether the orders sought could be granted at that stage but the threshold issue of jurisdiction to determine the case at all. He submitted that an appellate court cannot hear or determine an appeal where the court of first instance lacks the competence to hear the case. He submitted that where question of jurisdiction is raised before the court, and it fails to determine it before dealing with the merit of the case, the resultant adjudication is an exercise in futility because jurisdiction had been held to be the blood that gives life to the survival of an action in a court of law. He relied on: Utih & Ors. v. Onoyivwe & Ors. (1991) 1 NWLR (pt. 166) 166 @ 206 A-B; Ohakim v. Agbaso (2010) 19 NWLR (pt. 1226) 172.
He submitted that at this stage it is not important that the decision was based on proper principles of law but that the court's decision is a nullity and ought to be set aside for want of jurisdiction. He relied on: Obi V. INEC & Ors (2007) 7 S.C. 268. He urged the court to resolve this issue in the appellant's favour.
While adopting the submissions of learned counsel for the appellant in respect of this issue, learned counsel for the 1st respondent made some additional submissions. He noted that the reason given by the lower court for not considering the issue of jurisdiction was that it was a fresh issue being raised before that court in respect of which no leave was sought or obtained.
He submitted that this position is erroneous in view of the fact that the appellant did in fact seek leave to raise the issue for the first time before that court, which application was duly granted. He referred to pages 565 - 569 and 601 - 602 of the printed record. He noted that in any event, as submitted by learned counsel for the appellant, the issue of jurisdiction could be raised at any time and even for the first time on appeal.
On behalf of the 2nd respondent, K.C. Nwufo Esq., contended that there was no challenge of the jurisdiction of the lower court by the appellant to hear and determine the suit that would have prevented that court from determining the appeal on the merit. He argued that there is nowhere in the appellant's brief of argument where he raised the issue or urged the court to determine same before considering the merit of the appeal. He submitted that the appellant also did not file a separate notice of appeal. He submitted that the authorities relied upon by the appellant are inapplicable to this case because in those cases preliminary objections were properly raised. He argued that a court is not Father Christmas and will not grant a party a relief not prayed for. He referred to: Hon. Justice Ademola V. Chief Sodipo & Ors. (1992) 7 SCNJ 417.
He conceded that the issue of jurisdiction, once raised, must be determined first but contended that the leave of the court must first be sought and obtained. He relied on: Yusuf Vs Union Bank (1996) 6 SCNJ 203 @ 213 and submitted that having failed to raise the issue at the lower court, this issue ought to be resolved against him. He submitted that the appellant has not shown that he suffered any miscarriage of justice by the alleged failure of the court below to consider it.
A.T. UDECHUKWU ESQ., learned counsel for the 3rd respondent conceded the fact that not having appealed against the judgment of the lower court, it ought not to attack it. He however adopted the arguments canvassed by the appellant in respect of this issue on the ground that the duty of a court of law to hear and determine the issue of jurisdiction before any other matter, is an issue of law, which every counsel, being a minister in the temple of justice is enjoined to support.
In reply to the submissions of learned counsel for the 2nd respondent to the effect that the appellant did not raise the issue of jurisdiction before the lower court nor argue same in his brief, learned senior counsel for the appellant submitted that the brief of argument referred to at pages 521 - 528 of the record is the appellant's brief of argument as 2nd respondent in the main appeal filed by Senator Chris Anyanwu before the lower court. He noted that the appellant's brief (as 2nd respondent) in response to the cross appeal at page 552 specifically challenged the jurisdiction of the trial court to entertain the suit. He referred to pages 631 - 632 of the record where the lower court alluded to the fact that the appellant (then 2nd respondent) raised the issue of jurisdiction.
Relying on the authorities of: Omomeji V. Kolawole (2008) 14 NWLR (pt. 1106) 180 @ 196 A-C and Petrojessica Enterprises Ltd. V. Leventis Technical Co. Ltd. (supra), he submitted that having regard to the fact that the issue of jurisdiction could be raised at any time and even viva voce, the failure to file a separate notice of preliminary objection would not deter the court from considering and resolving the issue. The law is by now well settled that jurisdiction is the lifeblood of any adjudication and where it is lacking it would render any proceedings, no matter how well conducted, liable to be set aside for being a nullity. Jurisdiction is so fundamental that once the court's jurisdiction to hear a matter is challenged, it must be dealt with and resolved first before any other step in the proceedings. It is because it is so fundamental that it can be raised at any time, in any manner and at any stage of the proceedings.
In Petrojessica Enterprises Ltd. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt.244) 675 this court per Belgore, JSC (as he then was) held:
"This importance of jurisdiction is the reason why it can be raised at any stage of a case, be it the trial, on appeal to Court of Appeal or to this court; a fortiori the court can suo motu raise it. It is desirable that preliminary objection be raised early on issue of jurisdiction; but once it is apparent to any party that the court may not have jurisdiction it can be raised even viva voce as in this case. It is always in the interest of justice to raise issue of jurisdiction so as to save time and cost and to avoid a trial in nullity."
Also in: Issac Obiuweubi V. Central Bank of Nigeria (CBN) (2011) 7 NWLR (Pt. 1247) 465 @ 494 D- F per Rhodes-Vivour, JSC:
"It is thus mandatory that courts decide the issue of jurisdiction before proceeding to consider any other matter. See Bronik Motors Ltd & Anor v. Wema Bank Ltd. (1983) 1 SCNLR P. 296; Okoya V. Santilli (1990) 2 NWLR (pt. 131) P. 172; Madukolu V. Nkemdilim (1952) 1 ANLR (pt. 4) 587; (1962) 2 SCNLR 341... Usually where a court's jurisdiction is challenged by the defence, it is better to settle the issue one way or the other before proceeding to hear a case on the merits. Any failure by the court to determine any preliminary objection or any form of challenge to its jurisdiction is a fundamental breach which renders further steps taken in the proceedings a nullity."
The brief of argument filed by the appellant at the court below as 2nd respondent in the cross appeal is at pages 544 - 554 of the printed record.
Significantly at page 552 it raised the following issue:
"ISSUE TWO: WHETHER THE LOWER COURT HAD JURISDICTION TO ENTERTAIN THE CASE"
and submitted as follows:
"The Court below held unequivocally that "the main contention of the plaintiff is that the 3rd defendant was not a member of the APGA when primary election was held on 14 January 2011. See page 464 (last paragraph) - 455 and at page 471, the court restated the same finding. There is no appeal against the finding by the cross appellant It is therefore safe to submit that the cross appellant at the court below was contending that the Senator Chris Anyanwu was not our member (APGA) at the time of the primary elections.
It is respectfully submitted that the 1st respondent Senator Chris Anyanwu was a member of the party. It is now trite law that the court has no jurisdiction to determine who a member of a political party is. The political party alone has the prerogative. See ANPP v. USMAN (2209) ALL FWLR (Pt. 463) 1292 AT 1329 PARAS F - G. So on the case before the court below, the court is bereft of jurisdiction to hear the case." (Emphasis mine) It is evident from the above, that although no separate notice of preliminary objection was filed in compliance with Order 10 Rule 1 of the Court of Appeal Rules 2011, the issue of the jurisdiction of the trial court to entertain the suit before it was raised and argued. The lower court acknowledged this fact, when, in reviewing the issues formulated by the parties in the cross appeal observed at pages 630 - 631 of the record as follows:
"In the 2nd respondent's brief of argument filed on the 20th February 2012, settled by Prince Orji Nwufo (sic) Esq., two issues were distilled for determination to wit:
(i) Whether an order of striking instead of an order of dismissal was appropriate in the circumstances of this case;
(ii) Whether the lower court had jurisdiction to entertain the case."
(Emphasis mine)
In resolving the cross appeal, the lower court did not consider the aforesaid issue 2 raised by the appellant (then 2nd respondent). The importance of a resolution of the issue of jurisdiction one way or the other cannot be over emphasised. The jurisdiction of the lower court to entertain the appeal was dependent upon the jurisdiction of the trial court to hear and determine the suit before it in the first instance. The importance of this issue was well illustrated in a recent decision of this court in: SLB Consortium Ltd. V. NNPC (2011) 9 NWLR (1252) 317. In that case an objection was raised at the hearing of the appeal before this court that the originating processes at the trial court were incompetent, having been signed by a law firm instead of a qualified legal practitioner as required by the Rules of Practice of the Federal High Court and the decision of this court in Okafor V. Nweke (2007) 3 SC (Part II) 55 @ 62 - 63. It was argued on behalf of the respondent that the appellant was deemed to have waived his right to complain not having raised the objection before the trial court and having taken steps in the proceeding after becoming aware of the defect. This court held at pages 332 - 333 G - B:
"The argument that the objection ought to have been taken before the trial court and that it is rather too late in the day to raise same in this Court particularly as the respondents had taken steps in the proceedings after becoming aware of the defect or irregularities is erroneous because the issue involved in the objection is not a matter of irregularity in procedure but of substantive law - an issue of jurisdiction of the courts to hear and determine the matter as constituted and it is settled law, which has been conceded by both counsel in this proceedings - that an issue of jurisdiction is fundamental to adjudication and can be raised at any stage in the proceedings, even for the first time in the Supreme Court. In the circumstance I find merit in the preliminary objection which is accordingly upheld by me. I hold that the originating processes in this case having been found to be fundamentally defective are hereby struck out for being incompetent and incapable of initiating the proceedings thereby robbing the courts of the jurisdiction to hear and determine the action as initiated. In the final analysis, the appeal arising from the proceedings initiated and conducted without jurisdiction is hereby struck out for want of jurisdiction." (Emphasis supplied)
Thus, in that case the appeal to this court was struck out on the basis of the incompetence of the originating processes filed at the trial court. It therefore behoved the lower court to consider and determine the issue of jurisdiction raised by the appellant before considering the merit of the cross appeal because if the trial court lacks jurisdiction to entertain the case, its proceedings are a nullity and the lower court would have no jurisdiction to entertain the appeal arising therefrom. Whether or not the appellant has suffered a miscarriage of justice by the omission of the lower court does not arise, the issue of jurisdiction raised in this case being one of substantive law. Where the court lacks jurisdiction parties cannot confer jurisdiction on the court by consent or acquiescence. See: Adesola v. Abidoye (1999) 14 NWLR (pt.637) 28: Jadesimi V. Okotie-Eboh (1986) 1 NWLR (Pt.16) 264: Shaaban V. Sambo (2010) 19 NWLR (Pt.1226) 353; Obiuweubi V. CBN (2011) 7 NWLR (Pt.1247) 465.In effect the first issue is answered in the negative and accordingly resolved in favour of the appellant.
Issue 2
In support of this issue, learned counsel for the appellant submitted that it is not in dispute between the parties that the gravamen of the case is a claim that the 1st Respondent, Senator Chris Anyanwu was not a member of All Progressive Grand Alliance (APGA) at the time she won the primary election. He referred to relevant pages of the record and noted that both lower courts made findings to this effect. He submitted that there is no appeal against the concurrent findings. He submitted that the legal position as espoused by this court in: PDP Vs Sylva (supra) at page 145 F - C is that membership of a political party is a domestic affair of the political party and is therefore not justiciable. He submitted that the plaintiff at the trial court did not approach the court pursuant to Section 87 (9) of the Electoral Act 2010 (as amended) (hereinafter referred to as "the Act"), and noted that the lower court found and held that the suit was filed pursuant to Section 31 (5) of the Act. He submitted that in the absence of an appeal against this finding, the proper conclusion is that the suit was filed pursuant to Section 31 (5) of the Act. He reviewed the provisions of Section 35 (1) - (5) thereof and submitted that Section 31 (5) envisages a situation where the primary election has been concluded and a party's candidate has been nominated and his name published to enable his constituency confirm the information supplied by him. He submitted that the section also envisages that the plaintiff must have obtained the form containing the candidate's particulars being challenged from INEC and attached it to his claim. He submitted that no such form was referred to or attached to the originating summons. He submitted that the remedy for actions brought pursuant to Section 31 (5) as provided for in sub-section (6) is quite specific. The sub-section provides:
"31. (6) Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the High Court of a State or Federal High Court against such person seeking a declaration that the information contained in the affidavit is false".
He submitted that the section deals with disqualification from participating in the election in respect of which the primary election was held and not the primary election itself or membership of the party or a claim that the plaintiff be declared the candidate of the party, as sought by the plaintiff in the originating summons.
Learned counsel submitted that the position of the law is that the competence of a court to exercise jurisdiction in a cause or matter is determined by the plaintiff's claim. He referred to: Olagunju V. Power Holding Co. of Nig. Plc. (2011) 10 NWLR (pt.1254) 113: Odugbo V. Abu & Ors, (2001) 14 NWLR (732) 45. He maintained that the originating summons does not fall within the ambit of Section 31 (5) of the Act. On the conditions precedent to the exercise of jurisdiction by the court, he relied on: Madukolu V. Nkemdilim (1962) 2 SCNLR 341 and submitted that the originating summons falls short of the second requirement, namely, that "the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction." He submitted that where lack of jurisdiction is established, as in this case, the proper order to make is one striking out the suit at the trial court. He referred to: Obi Vs INEC (2007) 7 SC 268.
Learned counsel submitted that the case could not be said to have been brought pursuant to Section 87 (9) of the Electoral Act because the plaintiff did not allege that any section of the appellant's constitution was breached nor did he exhibit a copy of the party's constitution. He submitted that a perusal of the plaintiff's claim shows that it is in the nature of an election petition, which is filed after the results of a general election have been published. He submitted that a petition based on qualification as provided for in Section 65 (2) of the Act enures to the benefit of an opposing party after elections and not to a member of the same political party challenging the membership of another member of the party. He referred to Section 138 (1) of the Electoral Act 2010 (as amended). In conclusion he urged us to hold that the plaintiff's suit before the trial court is not justiciable and to resolve this issue in its favour.
Although learned counsel for the 1st and 3rd respondents made some additional submissions in respect of this issue, they did state in their respective briefs of argument that they adopt the arguments canvassed by the appellant herein. As respondents, the normal practice is that they have a duty to defend the judgment appealed against unless they have cross-appealed. See: NNPC V. Famfa Oil Ltd. (2012) 17 NWLR (Pt.1328) 148: Eliochin V. Mbadiwe (1986) 1 NWLR (Pt.14) 47: Emeka V. Okadigbo (2012) 18 NWLR (Pt.1331) 55. The instant appeal is against the decision in the cross appeal. The 1st respondent filed an appeal against the dismissal of the main appeal. The said appeal No. SC.21/2013 will be considered anon. Neither the 1st nor 3rd respondent has filed a cross appeal to this appeal No. SC.20/2013. Therefore, as far as the instant appeal is concerned, the appeal will succeed or fail based on the submissions made in the appellant's brief of argument. For this reason