The Appeal court sitting in Benin, has upheld the ruling of the lower tribunal which declared Emmanuel Uduaghan winner of January 6, 2011 re-run governorship election in Delta State, as it dismissed the Appeal filed by the Democratic Peoples’ Party (DPP) candidate in the re-run election ordered by the same court in November 2010..
The appellate Court while upholding the cross appeal filed by Dr. Uduaghan, noted that “there was no life issue to contend with by the appellant to arouse the jurisdiction of the tribunal”.
The Appeal Court led by Justice Raphael Agbo, in its judgement had held that “with the success of the cross appeal filed by the governor, the appeal filed by Chief Ogboru contesting the judgment of the lower tribunal has become an academic exercise and Ogboru’s appeal is an academic in futility.
In a unanimous decision, the appellate court struck out Great Ogboru’s petition, citing Supreme Court judgment on Ibrahim, [Supra] where the court delivered judgment when the life issue was already taken over by events, court asked “do we now order another rerun, is it possible or practical to order a rerun election or ask that the 1st Respondent be sworn-in when the tenure has elapsed, the issue has become extinguished, the court will be attempting a futile academic exercise, the appeal is therefore dismissed without a cost.’
“Assuming the court decides to honour this petition, is it legal to order yet another re-run election or alternatively is it legally possible to declare the first respondent the winner of the election when a tenure has elapsed another election conducted in April 2011 and a winner declared and sworn in”
The judges also cited Section 180 of the constitution of the Federal Republic of Nigeria 1999 as amended a basis for their dismissal of Ogboru’s petition.
“At the time the tribunal delivered its judgment on July, 25th there was no live issue at the re-run election exercise as it has been overtaken by the conduct of April 26th, 2011 governorship in the state, adding that the tenure of Emmanuel Uduaghan expired on May 29, 2011.
The judgement maintained that the Ibrahim Buba led federal high court judgment sitting in Asaba delivered on July 20, 2011 against the candidacy of Ogboru as the duly nominated candidate of Democratic People’s Party (DPP) in the 2007 governorship election had rendered the tribunal null and void.
It noted that INEC had organized the April 16, 2011 election after which the time of four years of Uduaghan has elapsed on May 29, 2011, saying that the position of the Constitution on the issue was very clear that the winner will not commence a fresh tenure in office.
Earlier in their arguments, Chief Wole Olanipekun (SAN) leading counsel for Governor Uduaghan had cited180 (2) (2a) of the constitution and the judgment by Justice Buba Ibrahim of the Federal High court that “the seat for which there was a re-run had expired, a new election had taken place, a new tenure has commenced and a court cannot make an order that be enforced either practically or legally,” and had court not to allow the appeal.
In his reply, Counsel for Ogboru and DPP, Prof. Joseph Mbadugha argued that the judgment of Buba Ibrahim referred to by Olanipekun was not in anywhere referred to and therefore urged the court to discountenance any submission based on it.
Reacting to the judgment, Mogbeyi Sagay, counsel to Ogboru said they would study the judgment while Turner Ogboru, younger brother to Great Ogboru, declared that they would appeal against the judgment.
“The crux of the appeal was not the issue of tenure but that there was no election, noting that the issue of tenure can be determined only if it has been established that there was election. The DPP will test the matter at the supreme court.”
Secretary to the Delta state governor, Ovuozorie Macaulay, who lauded the judgment however appealed to all Deltans with the government in moving the state forward.
“We want to call even on the opponents that it is enough of this exercise of fighting every day. Delta state belongs to all of us and power belong to God and when God has ordained somebody cooperate with that person for tomorrow shall be your turn. But today God has bestowed power on Uduaghan and his group.
“It beholds on them to join forces with him to develop Delta State if their aim is for service and not for us to litigate from one level to other. So, we are calling on them on behalf of the governor to come on board and join hand with him to develop Delta State”.
Meanwhile, a thanksgiving service has been held by well-wishers of Governor Emmanuel Uduaghan at the Government House Chapel, Government House, Asaba.