By Emma Amaize
ASABA- A Federal High Court sitting in Asaba, Delta State, Tuesday, held that Governor Emmanuel Uduaghan was not entitled to stay in office till January, 2015, by virtue of the fresh oath of office and oath of allegiance that he took on January 10, 2011 after winning the January 6, 2011 governorship re-run election in the state.
By this judgment, the April 16 Governorship Election by the Independent National Electoral Commission, INEC, will hold as planned, except the decision is overturned by a superior court.
However, the trial judge, Justice Ibrahim Buba was categorical in his judgment that Governor Uduaghan was caught up by the newly amended Section 180 (2) A of the 1999 Constitution, which clearly stipulates that the period already spent in office by a Governor whose election was cancelled and a re-run ordered counts if he wins the re-run election.
The amended section was signed into law by President Goodluck Jonathan at about 10.00 am on 10th January, the same day Dr. Uduaghan took oath of office and oath of allegiance, between 5.00 pm to 6.00 pm, for a second time as governor, after his April 14, 2007 victory was nullified on November 9, 2010 by the Court of Appeal, Benin City.
He has very strong words for those who want more periods added to their occupancy through the court: “I am of the considered opinion that the mandate of the governor is with the electorate and does not lie with the court under a thin disguise of official interpretation”.
Governor Uduaghan, though dissatisfied with the judgment was unmoved, as he went ahead with the scheduled flag-off his second-term re-election campaign at Obiaruku in the Delta North Senatorial District.
It was, however, likely, that his lawyers may file an appeal against the judgment, as Ayo Asala Esq. who held brief for his lead lawyer, Alex Izinyon, SAN, urged the court to make available a certified true copy of the judgment speedily to the legal team.
Director-General of Campaign Council and Commissioner for Orientation and Communication, Chief Paulinus Akpeki, who was in the court with no fewer than five other commissioners when the judgment was delivered said the governor went to court for interpretation of the constitution, adding, “As can be seen, the court is at liberty to discharge its duty, and we are already in the field campaigning. By the grace of God, Deltans have always given us, PDP, their support and we are going to win again”.
However, Justice Buba who said the two principal issues to be determined in the case filed by Governor Uduaghan from the formulations by the different counsels in the case were if he was entitled to fresh four years based on his fresh oath of office on January 10 and if he was caught up by the amended Section 180 (2) A, agreed with his learned brother, Justice Adamu Bello of the Federal High Court, Abuja that a governor’s tenure starts counting from the time he took his oath of office.
In the case of Governor Timipre Sylva and others decided by Justice Bello, he said the oath took place in 2008, but in the instant case (Uduaghan), the annulment came after commencement of the Act in July 2006; the election came after the commencement of the Act; and the oath of office, which is the crux of the matter came on the 10th of January, 2011, at the nick of amendment of Section 180 (2) A.
Justice Buba who cited decided cases that gave vent to the fact that the tenure of an elected political office holder starts counting from the actual day he took his oath of office as Uduaghan’s counsel formulated, nevertheless, said that If the court was to give effect to the Constitution as expected and for generations yet unborn, “it has to interpret Section 180 (2) A literary, liberally and meaningfully to be able to achieve the mischief to which it is intended to cure”.
He posed the question of the mischief the drafters of the Constitution wanted to achieve with the new amendment to Section 180 (2) A, and answered that it was clearly “to have a de jure governor and not a de facto governor”.
Judging from the provisions of the organic laws of the land, Justice Ibrahim said, “The Constitution stipulates a term of four years for a governor, no more, no less”
He noted the argument by Uduaghan that he was entitled to more years from the time he took a fresh oath of office on January 10, 2011, given the case of Adamawa, Cross River, Bayelsa, Kogi states, but, observed that in the instant case, what operated when they (Governor Sylva and others) took fresh oath of office in 2008 was not present in January 10, 2011 when Uduaghan took his fresh oath of office.
His words, “From the facts of this case, I am more than satisfied that the instant case is different from that Timipre Sylva and others. The liberal, literal and purposeful interpretation will reveal that Section 180 (2) A in respect of the instant case is not retroactive, having regard to the commencement date of the Electoral Act, 26 July, 2010 of the Amended Act”.
Analyzing the postulations of the counsels on the nullification of 9 November, 2010 by the Court of Appeal, election of 6 January, 2011 and the subsequent oath of office on 10th January, 2011, by Governor Uduaghan, the trial judge stated, “ I am more than inclined to agree with the submissions of the counsel to the first defendant, INEC, Dr. Onyechi Ikpeazu, SAN, that the constitution did not contemplate a situation where a governor will serve for seven years in office in the place of four years. I am of the considered opinion that the mandate of the governor is with the electorate and does not lie with the court under a thin disguise of official interpretation”.
In the final analysis and from the couching of Section 180 (2) A, he further declared that Section 120 (2) A of the Constitution of the Federal Republic of Nigeria cannot read in isolation with Sub -section 2, which clearly put the process for determination of the tenure of the governor on the entire Constitution and not just the date he took oath of office alone.
From the above, he said, “I hold that the election of 6th January, 2011and the oath of 10th January, 2011 are to be determined by Section 180 (2) A to know the term, I hold on the second question that the plaintiff is not entitled to four years based on the oath of office and oath of allegiance he took on 10th January, 2011, having regards to the amendment of Section 180, Cap (2) A”.
In the final analysis, the trial judge said the reliefs and declarations sought by the plaintiff could not be granted, adding, the case of the plaintiff fails, it is dismissed and is hereby struck out”.
While Uduaghan’s counsel merely asked for early release of a copy of the judgment to his legal team, O. Anumonye who represented Dr. Ikpeazu, SAN, with two others, commended the court for clarity of the judgment. Counsel to the Chief Great Ogboru, the DPP governorship candidate, Robert Emukpueruo said it was a scholarly judgment, while M.E Oruma Esq, who appeared for Chief Ovie Omo-Agege, the ACN governorship candidate gave kudos to the trial judge.
It was learnt that Uduaghan’s legal team was critically appraising the judgment with a view to formulating grounds of appeal but Director–General of the governor’s Campaign Council, Chief Akpeki who was on his way to Obiaruku for the campaign flag-off told Vanguard on phone, “We are ready and we are already in the field, there is no cause for alarm”
Manager, Communications to the governor, Mr. Paul Odili said “Governor Udugahan is disappointed with the court judgment, but as a pragmatic politician, he has always prepared for any eventuality which is why all efforts have been made to ensure that nothing impedes the success of the party at the forthcoming election”.
“The zonal campaign kicks off today (yesterday) with the governor leading the party and its thousands of supporters to Obiaruku. The people of Delta state believe in this Government and the vision he has for the people and the state and are going to return him and the party to office in April”.
Mr. Turner Ogboru, younger brother of Chief Great Ogboru who was in the court on March 7 and March 14 and teased some PDP leaders before the judgment that Uduaghan would lose the case pranced about the court premises after the verdict was delivered, as someone who had just won a gold medal in a 100-meter race.
He told Vanguard it was obvious to him ab initio that the reliefs and declarations sought by Governor Uduaghan would not be granted.
National Conscience Party, NCP, governorship candidate, Mr. Collins Eselemo, who had earlier sought to stall the judgment of the court by filing a notice of appeal at the Court of Appeal, Benin City against the Federal High Court, Asaba for allegedly throwing away his application for joinder, hailed the judgment.
A Deltan and tax payer, Oghenjabor Ikimi Esq. who instituted a separate action that sought practically the same reliefs with Uduaghan told Vanguard, “I think the Justice Buba judgment is a good decision, but not a perfect one, though, as it is appealable. I don’t intend to appeal same as I am satisfied with it”.
Peoples Redemption Party, PRP, governorship candidate, Mr. Emmanuel Igbini in his reaction told Vanguard, “The judgement of the Federal High Court, Asaba, dismissing the suit filed by governor Uduaghan, seeking a declaration that his tenure of office runs till midnight January 10, 2015, while also claiming to have won a fresh election, and not a re-run election on January 6, 2011, is one judgment that will remain as the best of the best of judicial pronouncements in this year 2011, especially as we head towards April 2011 fresh general elections and the election disputes that will arise thereafter”.
“The judgment cannot be faulted. It is impeccable, it is clear, unambiguous, rightly and courageously interpreted in line with the ‘intendment’ of the lawmakers who amended Section 180(2) of the 1999 Constitution to reflect the new Section 180(2A) of the amended Constitution of Nigeria, 2011, signed into Law by President Jonathan about 10am on January 10, 2011, about seven hours before Dr Uduaghan took the oath of allegiance and oath of office at about 5:30pm on January 10, 2011, swearing “to be faithful and bear true allegiance to the Federal Republic of Nigeria and to preserve, protect and defend the amended 2011 Constitution of the Federal Republic of Nigeria”.
“For the benefit of the doubt, I state here that this judgment is in accord with the earlier Abuja High Court’s judgment on the tenure of the five governors that approached it. I also totally agree with the Abuja High Court judgement ,which declared that the tenures of those five governors would terminate from the year 2008 to reflect the four -year tenure guaranteed by Section 180(2) of the 1999 Constitution of Nigeria which was in force when they took oaths to defend, preserve and protect during their swearing- in ceremonies after INEC declared them winners of the re-run elections. Let me hasten to add that the INEC appeal against the Abuja High Court judgment is faulty and waste of public funds”, Igbini said.
“The point here”, he asserted, “is that Governor Uduaghan narrowly missed this same opportunity to enjoy the same four years tenure that ought to run till about 5:30pm on January 10, 2015 for the simple fact that President Jonathan (GCFR) signed the amended Section 180 (2A) of the 1999 Constitution before Dr Uduaghan took the new oaths. I really sympathize with Governor Uduaghan but this is the position of the Constitution of Nigeria today, which must be given its correct legal interpretation devoid of public sentiments, opinions and emotions”.
“It is only very unfortunate that some lawyers would refuse to give proper legal advice to their clients on very glaring cases that will offend the law and attempt to ridicule the courts. If not, why should a Senior Advocate of Nigeria (SAN) ever file a suit claiming that the January 10, 2011 governorship election in Delta State was a fresh election and not a re-run election? This obviously was aimed at bringing to public ridicule, the judgment and the orders of the Court of Appeal, Benin Division, on November 9, 2010.
“It is even made worse giving the fact that the President Jonathan, Vice President Sambo, Governor Uduaghan and the entire PDP family publicly declared that the January 6, 2011 election was a re-run election. Did President Jonathan come to Warri stadium on January 4, 2011 for a re-run election or fresh general election? What about an interview published by the Delta State owned Pointer Newspaper of December 31, 2010, page 1, entitled: RE-RUN: PDP WILL EMERGE VICTORIOUS – UDUAGHAN?
“In conclusion, I must state that Governor Uduaghan has done right to seek this legal interpretation, which has in fact confirmed the existence and commencement of the 2011 Constitution of Nigeria. I commend him. This is a victory for him and victory for all peace and democracy-loving Deltans, particularly us, the governorship candidates for the forthcoming April 16, 2011 Fresh General Election for Delta State.
“For the avoidance of doubt, Section 180 (2A) of the 2011 Constitution of Nigeria states thus: “In the determination of the four year term, where a re-run election has taken place and the person earlier sworn in, wins the re-run election, the time spent in office before the date the election was annulled shall be taken into account”.
“I plead with all Deltans to keep this judgment behind us and move on peacefully with our election campaigns for the forthcoming April elections”, he said.
Eric Omare Esq, one of the counsels that appeared for the Delta Political Forum, whose application for joinder was dismissed by the court for not following due process, reacted to the judgment. According to him, “The judgment of the Federal High Court, Asaba of today (Tuesday) , March 15 , has once more demonstrated that the court is the hope of the common man. It has confirmed our position that Dr. Uduaghan’s tenure ends May 29”.
“He cannot get tenure extension through the backdoor. We urge all Deltans to come out enmasse and finally reject and vote Uduaghan out from office as he was rejected by the court today (Tuesday).