By EMMA AMAIZE
ASABA – A FEDERAL High Court, Asaba, will, today, decide on whether Governor Emmanuel Uduaghan of Delta State will be in office till 2015 when his tenure is expected to end. Today’s judgment by Justice Ibrahim Buba will also determine whether the April governorship election will hold in the state or not.
In the past few weeks, the case has generated considerable anxiety, undoubtedly because of the reliefs sought by the plaintiff, Governor Uduaghan, among others.
Uduaghan had prayed the court to hold that his tenure would terminate in 2015 by virtue of the fact that he took a new oath of office on January 10, 2011, after winning a fresh election duly conducted by the Independent National Electoral Commission, INEC, following the nullification, November 9, 2010 of his initial election and oath of office taken in 2007 by the Court of Appeal, Benin City. Besides Uduaghan, a Deltan and tax payer, Oghenejabor Ikimi Esq, and Charles Ochem Esq. in separate suits also approached the court seeking similar reliefs.
As expected, the governorship candidate of the DPP, Chief Great Ovedje Ogboru, who had dragged Uduaghan to the Election Tribunal challenging the outcome of the January 6 election, and his ACN counterpart, Chief Ovie Omo-Agege raced to the court to object to the move.
The applications by the PRP, NCP and ANPP governorship candidates, Mr. Emmanuel Igbini, Mr. Collins Eselemo and George Oyefia respectively to join as defendants in the suit were dismissed by the court for their failure to duly adhere to court processes.
Instituting own actions
Justice Buba, however, said they had the rights to join as defendants, but, since they did not come properly, they should institute their own actions so as not to delay those that kept to the rules.
Vanguard, however, learnt that miffed by the ruling, Eselemo has gone to the Court of Appeal, Benin City, seeking a stay of action of proceedings in the Federal High Court, Asaba, which means stalling today’s judgment, until the appropriateness of the dismissal of his application for joinder is determined. All together, this is a new-fangled twist, but it was not known at press time, whether an order had been made against today’s judgment.
Nevertheless, going by the legal fireworks, March 7, Justice Buba’s job, today, would not be an easy one.
While those for Uduaghan want him to abide by the judgment of his Federal High Court, Abuja, counterpart, Justice Adamu Bello, who extended the tenure of Governor Timipre Sylva and governors to 2012, those against him, said the prayers should be dismissed.
At the hearing, last Monday, Uduaghan’s lawyer, Alex Izinyon, SAN, submitted: “Our contention is that by the judgment of the Court of Appeal sitting in Benin City, it is clear that the entire election of Delta state in 2007 was nullified. When an issue has been nullified, it is deemed in law that it never existed.
“And so, when a fresh election was ordered, a new, fresh lease of four years commences.” He said the oath of office and oath of allegiance, which Governor Uduaghan took in 2007 were affected by the nullification.
Izinyon also submitted that the amended Section 180 (2) a of the 1999 Constitution, which was signed into law by President Goodluck Jonathan, January 10, 2010, could not apply in the instant case, which is an derivative of the 2007 governorship election, adding, that the legal position on laws with retrospective application was clear.
He stated that even if the assumption of the defendants on Section 180 (2) (a), as amended, was conceded but not admitted, it was a prospective legislation that states from now on, if you assume office, and something happened, leading to a re-run, your tenure starts to count from when you took your oath of office, which is completely different from Uduaghan’s election that was nullified.
Law and moral
Izinyon argued: “The contention that the oath of office taken by the governor in 2007 is not nullified by virtue of the Court of Appeal judgment cannot stand in the present case, as once the election was annulled, the oath of office taken thereto was invalidated. Law is law, moral is moral.” He urged the court to grant the reliefs sought by the plaintiff.
INEC’s solicitor, Dr. Onyechi Ikpeazu, SAN, countered, saying the plaintiff’s tenure would draw to a close May, 2011, in accordance with the amended Section 180 (2) a of the 1999 Constitution, having taken his first oath of office in May, 2007.
He said INEC had shown that upon being sworn in in 2007, the plaintiff proceeded to execute the functions of the office of the Governor of Delta State and signed bills into law, adding that the actions he took within the three and half years he was in office before his election was cancelled ,were not nullified by the judgment.
Ikpeazu said the judgment of the Supreme Court in the case of Balonwu and the Governor of Anambra State showed that the actions taken by a person whose election was nullified were valid in law, and if that be the case, the time the person spent in office would not be invalid.
He posited that Governor Uduaghan was caught by the provisions of the newly amended Section 180 (2) (a) and urged Justice Buba not to be persuaded by the decision of his learned colleague of the Federal High Court, Abuja, Justice Bello, who used the Obi versus INEC case to extend the tenure of Governor Timipre Sylva and others, saying, “it cannot apply in this case”.
He noted: “In Obi vs INEC, Obi was never sworn-in, so the issue of time he spent cannot apply.” He referred the court to the Alagoa judgment and urged it to dismiss the reliefs sought by the plaintiff, just as he contended that Uduaghan was sworn in on January 10 based on the amended Section 180 (2) (a) of the 1999 Constitution.
Counsel to Chief Great Ogboru and DPP, Robert Emukpueruo Esq., asked the court to dismiss Uduaghan’s case, noting that it lacked merit. He said that since the plaintiff admitted that his suit was predicated on the 2007 governorship election, he should tell the court if a participant in a race would be given two prizes in the same race.
He said that the plaintiff had ruled for three and half years between 2007 and 2010 by virtue of the prize he won in the 2007 election and since the January 6, 2011 election was a re_run of the same election, he could not win two prizes in the same race.
The counsel referred his Lordship to the Labour Party versus INEC case, which was decided by the Court of Appeal, saying a fresh election was the same as a re_run, and the plaintiff could not, on the basis of the 2007 election, hold power for more than four years stipulated in the Constitution.
Chief P. Wanagho, counsel to Chief Ovie Omo-Agege, said what Uduaghan asked the court to do for him amounted to gold digging, as there was no ambiguity that the law under which the plaintiff came to power is Section 180 (2) (a) of the Constitution, which had been amended and was the prevailing law in the country.
He argued that Uduaghan’s tenure started to count from the first day he took his oath of office in 2007 adding that the said oath of office had not been set aside by any court. He cited the case of Njaba Local Government versus Chidozie, reported in 2010, 16 NWLR, Part 7218, Page 166.
Points of law
On points of law, Izinyon said there was no definition in the Electoral Act of general and re-run election, adding that he had responded to all the issues raised by the second and third defendants in his written submission to the court and wished to stand by them.
He reminded Justice Buba that the decision of his learned colleague at the Federal High Court, Abuja, in a similar suit by Governor Sylva and others was binding on him and said the Njaba versus Chidozie case cited by Chief Wanagho could not hold water in the present case.
Izinyon said it was from the date one took oath of office and oath of allegiance that his tenure started to count and urged the court to sustain the reliefs sought by the plaintiff.
Barrister Jitobo Akanike, Eric Omare Esq., appeared for Mr. George Timinimi and 19 others on behalf of the Delta Political Forum, seeking the court to interpret if by virtue of the amended Section 180 (2) (a) of the 1999 Constitution, whether the plaintiff could hold office for a period more than May, 2011, having being sworn into office originally in May, 2007.
He submitted that by the combined effect of the Electoral Act, which came into effect, July 16, 2010, the plaintiff must vacate office in May, 2011 for the simple reasons that the relevant amended portion of the 1999 Constitution stated that his tenure started counting from when he took office in 2007.
The court fixed March 14 for judgment after hearing the pleadings by the parties.
The court also heard, on the same day, the case of Oghenejabor Ikimi, who dragged INEC and Governor Uduaghan to court to stop the April governorship poll in the state on the grounds that the governor’s tenure would not expire by May, 2011, having secured a fresh tenure with his victory in the fresh January 6 poll in the state.
His counsel, Rufus Olarenwaju, withdrew his motion on notice on the matter and adopted the submissions of Iziyon since the Commission has already joined issues with Uduaghan. Justice Buba granted his application for withdrawal of the motion and fixed March 14 for judgment.