Thursday 18 October 2012

Oshiomhole’s non-qualification allegation: Appeal Court to hear Airhiavbere


By Ken Edokpayi
 The Navigator Newspaper

The legal representatives of Major General Charles Ehigie Airhiavbere, (Rtd.), candidate of the Peoples Democratic Party, PDP, in the July 14, 2012 Edo gubernatorial election, have filed a strong, water-tight case at the Court of Appeal, holden at Benin, appealing against the decision of the Governorship Election Petition Tribunal on the 27th September, 2012 that it had no jurisdiction to hear the case of a lack of requisite educational qualifications their client filed against incumbent governor of the state, Comrade Adams Oshiomhole, to have contested the July 14, 2012 gubernatorial election in the state.
In a Notice of Appeal to the Court of Appeal, Benin, dated 2nd October, 2012, with Comrade Adams Aliyu Oshiomhole, Action Congress of Nigeria, ACN, Independent National Electoral Commission, INEC, Resident Electoral Commissioner (Edo State) and the Returning Officer, Edo State Governorship Election as respondents, lead counsel to Major General Airhiavbere, (Rtd.) Chief Efe L. Akpofure, SAN, MCIArb, raised seventeen (17) grounds of objection against the September 27, 2012 decision of the Governorship Election Petition Tribunal, citing appropriate particulars of errors and praying the Court of Appeal, Benin, to grant his client (Major General Airhiavbere, (Rtd.) two reliefs: “an order of this Honourable Court setting aside the Ruling of the Tribunal, except the part stating that the ground of corrupt practices and non-compliance with the Electoral Act 2010 (as amended) contained in paragraph 8 of the petition is competent having been in substantial compliance with Section 138 (1)(b) of the Electoral Act 2010 (as amended) and the decision refusing to strike out the 4th and 5thRespondents from the petition;” secondly, “an Order of this Honourable Court remitting the petition to a Tribunal, differently constituted, for hearing and determination.”
Chief Akpofure, SAN, in the notice of appeal, maintained that the learned Chairman and member of the Governorship Election Petition Tribunal severally erred in law in the consideration of a number of issues leading to the September 27, 2012 ruling, even as he cited legal principles, sources and authorities to elucidate on the observed errors.
For instance, on Ground 4 in the Notice of Appeal, Chief Akpofure, SAN, observed that “the learned Chairman and member of the Governorship Election Tribunal sitting at Benin City, erred in law when they held that the Tribunal can entertain the motion of the 1st and 3rd – 5th Respondents at this stage of the proceedings and proceeded to resolve the issue whether or not the Tribunal can assume jurisdiction to entertain the said motion at the stage of proceeding in favour of the 1st and 3rd – 5thRespondents.”  
While elucidating on the particulars of error, Chief Akpofure maintained that “the issue canvassed by the petitioner in his written address in opposition to the applications was to the effect that the 1st and 3rd – 5th Respondents, having raised and incorporated their preliminary objection on the point in their replies to the petition, were caught by the provision of paragraph 12(5) of the 1st Schedule to the Electoral Act 2010 (as Amended) and were therefore estopped from bringing any application and or moving any application bordering on the same issue already raised by them by way of preliminary objection in their replies.”  He said “on the contrary, the 1st and 3rd – 5th Respondents contended in their written addresses that they have the right under the extant law to raise the issue by way of preliminary objection in their replies and at the same time by way of an application before the hearing of the Petition.”
The Notice of Appeal also faulted the position of the Tribunal when it held that “the effect of Section 31 (1) – (6) of the Electoral Act 2010 (as amended) to the pleadings in paragraph 25 of the Petition is that the Petitioner ought to have approached the High Court for the determination of what the Petitioner considered as false in the Form CF001 or any other document submitted to INEC (3rdRespondent) by the 1st Respondent in the 2007 and 2012 Election.”  
It argued that “Section 31(5) did not make it mandatory for a person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate to be false to file a suit at the Federal High Court, High Court of a State or Federal Capital Territory against such person seeking a declaration that the information contained in the affidavit is false.”
While pointing out that Section 31 of the Electoral Act 2010 (as amended) did not remove the jurisdiction of the Tribunal to hear issues raised with regards to non-qualification of a candidate, Chief Akpofure, SAN, in the Notice of Appeal, noted that “the Tribunal failed to appreciate that after an election has been held, it is only an Election Tribunal that can inquire into the qualification of the candidate vide Section 138 (1) (a) of the Electoral Act, 2010 (as amended),” insisting that “whilst the Federal High Court has jurisdiction to inquire into the qualification of a candidate before an election, it ceases to have jurisdiction once an election has been held.”
Read the particulars of errors on Ground 8 of Chief Akpofure’s Notice of Appeal: “Section 285 (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) vests jurisdiction on the trial Tribunal to hear and determine the petition.  Section 138 (1) (a) of the Electoral Act confers jurisdiction on the Tribunal to inquire into the qualification of the 1st Respondent.  Section 182 (1) (j) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) makes the presentation of a forged certificate to the Independent National Electoral Commission a ground for disqualification from contesting Governorship election.”
The Counsels to Major General Airhiavbere, (Rtd.) also faulted the Governorship Election Petitions Tribunal for striking out paragraph 25 of the Petition, insisting that the Petition ought to have been read together with paragraph 24 by the Tribunal before arriving at any conclusion on paragraph 25 and added that “the law does not allow averments in paragraphs in pleadings to be read in isolation.”  Major General Airhiavbere’s Petition had pleaded in paragraph 24 that the 1st Respondent, Comrade Adams Oshiomhole, did not meet the minimum educational qualification that is required to contest for the office of the governor of Edo State.  While noting that the minimum qualification is stated clearly in Section 177 (d) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Notice of Appeal argued that “there is no law or rule of practice that prohibits reliance on facts associated, related or tied to Form CF001 submitted by a candidate to INEC (3rd Respondent) … A community reading of paragraphs 12 (iv), 24 and 25 of the Petition puts it beyond doubt that the academic qualification of the 1st Respondent was being questioned in the Petition.”
No date has, however, been fixed by the Court of Appeal, Benin, to start hearing the appeal as filed by the legal representatives of Major General Charles Airhiavbere, (Rtd.).
    It would be recalled that not many people took Airhiavbere’s allegations against Oshiomhole seriously until the ACN’s lawyers first responded to the case at the Edo State Governorship Election Tribunal, pursuing a rather controversial ‘legal angle’ that there was no emphasis on educational qualification in the amended version of the Electoral Act, and, therefore, praying the Tribunal to strike out the case.  This position got a greater majority of the people worried, as they had expected the governor to promptly respond with the unobtrusive presentation of his educational qualifications, and figuratively “.put the Devil to shame.”
Meanwhile, the first respondent and Edo State Governor, Comrade Adams Oshiomhole, in a chat with newsmen in Benin City, shortly before the Tribunal ruling of September 27, 2012, had shrugged off Airhiavbere’s petition on his qualifications as “funny”, insisting that academic records at Ruskin College, Oxford, United Kingdom, would vindicate him at the tribunal.
Oshiomhole had in that interview launched a tirade at Airhiavbere, insisting that it was ironic that the PDP’s candidate, whose military and political careers were shrouded in falsehood, was the first to query his educational qualifications.    
  However, the kernel of Airhiavbere’s response to the ACN’s reply to his petition in the suit EPT/ED/G/01/2012, before the contested Tribunal ruling of September 27, 2012 was that Oshiomhole “was not educated up to School Certificate level or its equivalent, contrary to section 177 (d) of the 1999 Constitution of the Federal Republic of Nigeria and infraction of section 182 (1) (j) of the same constitution as amended.”
The PDP’s candidate’s legal team, led by Chief Efe I. Akpofure (SAN), maintained in the petition that “there was no Iyamoh Primary School, Iyamoh in 1957.  The 1st respondent was barred from enrolling into and entering Primary One in 1957, having not attained the minimum age of six years, by the provision of Western Region of Nigeria Gazette no. 17 vol. 5 dated 5th April, 1956.”  The particulars continues, “The 1st respondent dropped out of the Secondary Modern School in the second year and did not complete the mandatory three years course at Blessed Martin Secondary Modern School, Jattu-Uzairue, which he claimed to have attended between 1963 and 1965.”
Said a public affairs’ commentator, Elder Solomon Edosomwan, of the on-going legal saga, “In fact, my brother, it is very difficult to believe what I am reading and hearing about this matter.  If we say PDP, or Airhiavbere, since the party has said it has withdrawn its interest, accuses Oshiomhole of not having the requisite educational qualification, amongst other things he has joined together in his legal contest of the conduct of the last gubernatorial election, I expected Oshiomhole and his legal team to simply laugh it off, stroll to the Tribunal and present the governor’s certificates.  Pronto!  But this rigmarole, going to argue that no educational requirements were mentioned in the Electoral Act, as amended, or pleading that the case be struck off, is a give-away tip that Oshiomhole has no certificate!”
As the issue continues to rage, even as the Court of Appeal, Benin prepares to begin hearing Airhiavbere’s appeal to the Tribunal ruling, some respondents to The Navigator’s questions maintained that the issue of educational qualification should not debar Edo people from continuing to enjoy the dividends of democracy which the Oshiomhole administration has brought to infrastructural development in the state.
Said a respondent, Matthew Okuoghae, “Even if Oshiomhole has no certificate, let them leave him alone for us.  We have seen Professors, Doctorate degree holders and those who said they were highly educated in elective public positions as governors, senators and the likes, what were they able to do for the people?  A man has come, doing good for the greater number of people, and they are saying he has no qualification.  What qualifies a man more than his good heart, his good naturedness to do what is right?  Let the PDP go and rest.  They have no credibility anymore in this state.”
However, “in the eyes of the law, by which civilized and modern states and nations are governed,” according to Osaro Osarenkhoe, Esq., “Airhiavbere has a good case. One of the requisite qualifications, according to section 177 of the 1999 Constitution, is that you must be educated up to secondary school level or its equivalent, before you contest for the office of the governor.  And secondary school level in Nigeria is either you have WAEC, SSCE, GCE or NECO.  These are the equivalents to the one the constitution states.  If you do not have any of these, then, you can’t contest.  That is what it means.
“However, it is very clear.  A man that has the intellect of a professor cannot be a professor if he does not possess a doctorate degree or P.hd and satisfy the requisite publications that would make him qualified for that academic rank.  Or if a boy of 18years is more intelligent than a B.Sc. holder, it does not qualify him to be a B.Sc. holder!  So, the interpretation of the constitution must be done according to the way it is.  It is clear.”
From Uromi, the administrative headquarters of Esan North East local government area came the contribution of Comrade Philip Adams, aka Eduze, chairman of the local government area chapter of the Road Transport Employers Association, RTEAN, who described the certificate tango as “uncalled for, since Oshiomhole’s victory at the last election was total and widespread.”
He noted that with the governor’s performance in the past four years, “the PDP should recommend Oshiomhole for a special award.”  He wondered why Oshiomhole should be made to suffer for the “laxity and error of INEC whose duty it is to disqualify any candidate.”  While insisting that the governor “has no case to answer,” Comrade Adams called on all political parties to use the opportunity of the open-door policy of the Comrade Governor’s to “cooperate to move the state forward.”
However, another Uromi resident, Hon. Friday Ibhazobe Ihemhilin, a PDP member, maintained that Oshiomhole was not the first to be accused of involving in a certificate scam, saying that “his case will not be different.”  He went down memory lane to cite the cases of Salisu Buhari, former Speaker Federal House of Representatives and Evans Ewerem, former Senate President, who were removed from offices based on proofs of certificate fraud.  “The removal of Oshiomhole, therefore, if he is found guilty as alleged,” he noted, “will not only be proper, but in line with the dictates of the laws of the Federal Republic of Nigeria.”
community leader and practising politician in Igarra, the administrative headquarters of Akoko-Edo local government area, Hon. (Chief) Gabriel Olorunfemi Ojo, while fielding question fromThe Navigator on the controversial issue, remarked that there were always reasons for losers at elections to complain, just as there were ample reasons for the winners to engage in jubilation.
In his words: “The July 14, 2012 governorship election has come and gone.  Yet, government in her wisdom, equally according to the laws of the land, made provisions for anybody who have grievances to go to a properly constituted tribunal.  If a candidate in that election decides to go to court, and his party comes up publicly to say he should not go, then It gives direct indication that the party has dirty skeletons in its cupboard.”
  He said further: “In my own personal opinion, Charles Airhiavbere has good grounds to seek legal redress because I have read the grounds as published in the newspapers.  These legal grounds are very good because more democratic space will be opened.  The intriguing thing now is why are some people pressurizing him not to seek legal redress?  It only goes to show that something is wrong. As for me, I support his going to the tribunal 100%.”
     In his own contributions, Comrade Suru Akpata, a member of the Elders’ Council of the PDP in Akoko Edo local government area, said 'it is very unfortunate that the party leadership is not taking steps to back their candidate. There is no crime in trial. There are certain abnormalities that took place during the election. Charles has every right to go to court as it is incumbent that the party should assist him.”
        The National President, Akoko Edo Students’ and Youths’ Vanguard (ASYV), Comrade Aroyameh Bright, Jnr, in his own view said there was nothing wrong if General Airhiavbere decided to go to the tribunal.   In his words: “Adams Oshiomhole should be bold enough to come out and prove the petition wrong in court.”

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