The State and National Assembly Appeal Court sitting in Lagos on Thursday reserved judgment on an appeal by Ebitonmo Anthony Alapala of the All Progressives Congress (APC) challenging the victory of the Peoples Democratic Party (PDP)’s Forteta Asupa Peter in the March 18 election for the Burutu North State Constituency seat in the Delta State House of Assembly.
The three-member panel of justices adjourned for judgment after taking arguments from counsel to all the parties.
Alapala was represented by Dr. Muiz Banire (SAN) while Peter was represented by Mr. S. Larry (SAN).
Dr. Banire informed the court that he had a pending application filed on the 24th of October 2023.
Larry told the court that he had filed a counter affidavit and written address opposing the application.
Responding, Banire told the justices that he also filed a further affidavit pursuant to the counter, dated 26th October, 2023.
In the course of the proceedings, the court was presented with two conflicting judgments on the petition said to have both emanated from the Delta State National and State Houses of Assembly Election Petition Tribunal.
The judgment concerned Petition No: EPT/DL/SHA/08/2023 between Forteta Asupa Peter & Anor vs. Independent National Electoral Commission (INEC) & 2 Ors.
The first judgment was delivered by the Tribunal on September 12, 2023 by their lordships, Justice W. Kpochi (Chairman), Justice C. Ezeugwu, Justice S. Umar (SAN).
It affirmed the election of Forteta Asupa Peter as the duly elected member representing Burutu North State Constituency in the Delta State House of Assembly in the election held on March 18, 2023.
Larry informed the appellate court that there was an error, called a “slip” in that judgement.
He said the tribunal noticed the slip some days after it issued the judgment to the parties. It then corrected the slip and issued another, “correct judgment” to him.
He told the justices that the Tribunal’s secretary informed him that the “corrected judgment” had been sent to the other parties in the case.
Larry said: “There was a judgment and there was a slip, and the trial tribunal corrected this slip. But they prefer to predicate their notice of appeal on the ‘uncorrected’ judgment and abandoning the corrected judgment. It was a minor slip, they predicated their appeal on that.”
But Banire, who filed two applications, disputed Larry’s claim, saying a tribunal’s secretary could not on his own correct any error in a judgment, moreso when the secretary did not inform the other party.
He asked the justices to discountenance the “corrected judgement” that Larry referred to, saying Larry could not on his own compile the records of proceedings and send them to the appellate court.
In his view, only the Tribunal’s secretary could lawfully do that.
Banire: “My lord, it is unfortunate that my brother silk wants to be washing dirty linen in public, but I will try as much as possible to avoid it because this is a situation where from the same tribunal we have two different judgments. From the same tribunal.
“What he called a slip is even fundamental. But those are administrative issues, in my very strong views, what is before your lordships is what your lordships will determine.
“We have a motion filed 23rd of October, 2023. The motion is praying your lordships to discountenance the purported additional record compiled by the 1st and second respondents on their own. That is what essentially, we pray your lordships for and of course the consequential order of dispensing with the brief predicated on it.
“We have stated all the grounds and most importantly, by paragraph 9 of the practice direction, only, exclusively, and only secretary can compile records for the purpose of the determination of any appeal before your lordships.
“Essentially, our prayer is that no party can on his own go and compile records and send to your lordships. The rationale behind the rule is to avoid a situation that my learned friend is saying now, about whether one document is genuine or it is the other one that is genuine, or one is fake and the other is genuine. That is the whole essence of insisting that it is the secretary of the tribunal that should compile the records.”
After hearing both parties and another petition by the APC, the court adjourned for judgment
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