15th September, 2011
The Court of Appeal in Lagos has upturned an order made by the stateâ€™s Legislative Election Petition Tribunal, in favour of Cosmas Okoli of the Labour Party (LP).
The tribunal had, by an ex parte order on 31 May, directed the Independent National Electoral Commission (INEC) to permit Okoli and his forensic experts to inspect and analyse materials including biometric data used for the last legislative election in Amuwo-Odofin Federal Constituency.
Okoli is challenging the emergence of the Action Congress of Nigeria (ACN) candidate, Ganiyu Olukolu, as winner of the election, hinging his petition on the argument that Olukolu was not duly elected on 9 April and urged the tribunal to so hold.
The Appellate Court held that an order with the effect of allowing a party to take possession of election materials and hand them over to its hired forensic analysts in the absence of the other party was suspicious because the other party ought to have been represented
during the forensic analysis.
Justice John Inyang Okoro, who delivered the lead judgment, upheld the argument of lawyer to the appellant, Lare Oyedepo, declared that the tribunal erred in conferring jurisdiction on itself on matters outside its area of competence.
The court further held that the rules of
the court were not made for the fun of it, but meant to be obeyed.
â€œParagraph 47 (1) of the First Schedule to the Electoral Act provides that no motion shall be moved and all motions shall come up at the pre-hearing session except in extreme circumstances with the leave of tribunal or court.
â€œIt is trite that where leave is required in the rules of court and the leave is not sought and obtained, the court has no jurisdiction to grant the motion as it is incompetent, while the consequential order based on the said motion itself is invalid.
â€œThe major grouse of the appellant (Olukolu) against the inspection order, which I agree with, is the prejudicial effect the secret forensic result would have on the case of the appellant, whose victory or return is being challenged. I think it was not in the interest of
justice to grant such an order behind the back of the appellant, â€œ the judge ruled further.
Oyedepo had argued that Paragraph 47 (2) of the First Schedule to the Electoral Act 2010 (as amended), tipulates that any motion to a tribunal shall be served on the respondent and that it was obvious that the ex parte motion filed by the petitioners was unknown to the Electoral Act.
He noted that the ex parte motion was heard by the tribunal before the pre-hearing session, arguing that no leave was either sought or obtained as required by Section 145 (1) of the Electoral Act.
Oyedepo urged the court to set aside both the ex prate order and the tribunalâ€™s ruling dismissing the appellantâ€™s motion challenging the ex prate order.