*No, it ends May, 2011 – INEC, Ogboru, Omo-Agege, others
*Court gives verdict March 14
By Emma Amaize
ASABA – DELTA State Governor, Dr. Emmanuel Uduaghan told a Federal High Court sitting at Asaba,, that his tenure would come to an end in 2015 by virtue of the fact that he took a new oath of office on January 10, 2011, after winning a fresh election by the Independent National Electoral Commission, INEC, consequent upon the nullification of his earlier election and oath of office in 2007 by the Court of Appeal, Benin City, November 9, 2010.

He made the submission through his lawyer, Alex Izinyon, SAN, at the hearing of his case for tenure elongation before Justice I. N. Buba.

The Independent National Electoral Commission, however, countered his position, through its lawyer, Dr. Onyechi Ikpeazu, SAN, saying his tenure would draw to a close May, 2011, in accordance with the amended Section 180 (2) a of the 1999 Constitution, having taking his first oath office in May, 2007.

Besides INEC, the Democratic People’s Party, DPP, governorship candidate, Chief Great Ogboru, Action Congress of Nigeria governorship candidate, Chief Ovie Omo-Agege, a former commissioner in the state, Mr. George Timinimi and the Delta Political Forum opposed the application by the governor by the court to extend his tenure.

Justice Buba who demonstrated his readiness to hear the case despite the several applications that came up yesterday morning on the matter adjourned the case to March 14 for judgment after hearing the parties and dismissing three applications for joinder.

Izinyon, SAN, who adopted the originating summons, dated March2, six-paragraph affidavit in support with three exhibits, statement of claim, his written address, reply on points of law to written address by INEC, second and third defendants, dated March 4, filed on behalf of the plaintiff, Dr. Uduaghan told the court that since the Court of Appeal nullified Uduaghan’s 2007 election, it was deemed that nothing existed as at January 6, 2011 when a fresh election was held in the state.

His words, “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 added, pointing out that the oath of office and oath of allegiance, which Governor Uduaghan took in 2007 were affected by the nullification.

He said the contention that the oath of office taken by the governor in 2007 was not nullified by virtue of the Court of Appeal judgment could not stand in the present case, as once the election was annulled; the oath of office taken thereto was invalidated.

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 legal position on laws with retrospective was clear.

He posited 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 says 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 the Uduaghan’s election that was nullified.

Izinyon maintained, “Law is law, moral is moral” and urged the court to grant the reliefs sought by the plaintiff.

Ikpeazu, SAN, who also adopted his counter affidavits, written address, dated February 14 and other processes he filed in the case, urged the court to dismiss the originating summons by Uduaghan, saying exhibit A (Court of Appeal judgement) did not make any pronouncement on the oath of office and oath of allegiance taken by the plaintiff when he was first sworn in.

He said that INEC had shown 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 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 had shown 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.

The learned SAN insisted that Governor Uduaghan was caught by the provisions of the newly amended Section 180 (2) a and that the use of the term, ‘who wins’ a re-run by the drafters of the law was not good, as it ought to have read, “who won” a re-run since it was already a past tense by the time a rerun is won.

He 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”.

“According to him, “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 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, E.M Emuberuo Esq adopted the counter affidavit with two exhibits filed by second and third defendants in opposition to the originating summons and other processes filed in pursuance to the order made by the court on March 1. He opposed the reliefs sought by Uduaghan.

While adopting his written address and other processes filed in the case, counsel to the ANPP governorship candidate, Mr. Anthony Ezeagu, 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 cannot win two terms or two prizes from the same election.

According to him, there is a decided case already between the Labour Party versus INEC by the Court of Appeal that a fresh election was the same as re-run. He emphasized that the plaintiff could not on the basis of the 2007 election hold power for more than four years, which the Constitution stipulated.

Adopting his written address and other processes filed by him, Chief P. Wanagho, the counsel to Chief Ovie Omo-Agege, said the issue for determination by the court was which version of the 1999 Constitution the plaintiff was elected. He submitted that there was no ambiguity that the law under which he came to power is Section 180 (2) a of the Constitution , which had been amended and is 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 and the said oath 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.

On points of law, Izinyon said there was no definition in the Electoral Act of what a 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, 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, 16 July, 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 paties.

The court also heard, yesterday, 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 aligned himself with the submissions of Izinyon for the plaintiff. Justice Buba granted his application for withdrawal of the motion and fixed March 14 for judgment.

In a similar suit, Charles Ochem Esq also adopted the submissions of Izinyon and judgment was also fixed for March 14.

Earlier in the day, the bid by the Peoples Redemption Party, PRP, governorship candidate, National Conscience Party, NCP, governorship candidate, Mr. Collins Eselemo to join as defendants were struck out because the expected court processes were not fully complied with.

The judge, however, said he was not shutting out, but it was obvious, they were not ready, and since he fixed the case for definite hearing, Monday, the last time the court sat, the parties that were ready should go ahead with the case