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.”
A 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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