Date Published: 09/23/11

Court of Appeal upholds Uduaghan's Victory

The Court of Appeal has upheld the decision of the lower tribunal, which affirmed the Independent National Electoral Commission’s (INEC) declaration of Dr. Emmanuel Uduaghan of the People’s Democratic Party (PDP) as winner of the January 6 Delta State governorship rerun election.

The court sitting in Benin, presided over by Justice Raphael Agbo therefore dismissed the appeal filed by Chief Great Ogboru of the Democratic Peoples Party (DPP) challenging the judgement of the lower tribunal. The appellate court, however, upheld the cross appeal by Dr. Uduaghan saying there was no life issue to contend with by the appellant to arouse the jurisdiction of the tribunal.

It held that with the success of the cross appeal filed by Uduaghan, the appeal filed by Chief Ogboru contesting the judgment of the lower tribunal had become an academic exercise and therefore struck it out.

The court further held that Chief Ogboru participated in the April 16 governorship election in the state even when his case was still before the election petitions tribunal in Asaba

Consequently, the five-man justices of the Court of Appeal in a unanimous judgment reasoned that Chief Ogboru, having participated in the election, had waived his right to appeal against an election which tenure of office had lapsed.

Citing Supreme Court judgment on Ibrahim (Supra) where the court delivered judgment when the life issue was already taken over by events, the 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 res has become extinguished, the court will be attempting a futile academic exercise, the appeal is therefore dismissed without a cost.”

Earlier in his argument, Chief Wole Olanipekun (SAN), lead counsel for the governor had cited Section 180(2)(2a) of the Constitution and the judgment by Justice Buba J of the Federal High Court saying,“the seat for which there was a rerun had expired, a new election had taken place, a new tenure has commenced and a court cannot make an order which cannot be enforced either practically or legally,” and therefore urged the court to allow the cross appeal.

Replying, counsel for Ogboru and DPP, Prof. Joseph Mbadugha argued that the judgment of Buba J. referred to by Olanipekun was not in anyway referred to and therefore urged the court to discountenance any submission based on it.

Shortly after the judgement yesterday, the Secretary to Delta State Government, Mr. Ovouzorie Macaulay called on Great Ogboru and other oppositions to team up with the governor to move the state forward, adding that if their intension was to serve, they should work with the governor in the interest of the state.

However, Ogboru’s younger brother, Turner Ogboru, deferred in his reaction, saying the DPP would test the matter at the Supreme Court.

SUN