By
Anslem Edugie
The
die has now been cast in the legal tussle at the Court of Appeal holden at
Benin City in the election petition matter between Comrade Adams Aliyu
Oshiomhole of the Action Congress of Nigeria, ACN, and the candidate of the
Peoples Democratic Party, PDP, in the July 14, 2012 governorship election in
the state, Major-General Charles Ehigie Airhiavbere, rtd., as the learned
Justices prepare to make a final pronouncement on their interpretation of the
electoral sections and provisions in the 1999 Constitution of the Federal
Republic of Nigeria (as amended) and the relevant sections of the Electoral Act
2010 (as amended) pertaining to whether or not the Election Petition Tribunal
has jurisdiction to hear cases of non-qualification of a candidate in an
election.
On Wednesday, November 7, 2012, the
legal counsels to both the Petitioner, Major-General Charles Airhiavbere rtd.,
and the 1st Respondent, Comrade Adams Oshiomhole, were at the Appeal Court
defending their pole positions while holding brief for their principals. The court premises, as expected, was filled
with enthusiastic supporters who waited patiently outside as they could not
gain entry into the court room where proceedings were going on.
As the crowd waited outside, the
legal representatives sweated to make their presentations as convincing as
possible for the learned Justices, producing motions, citing legal authorities
and elucidating on the points of law upon which they were marshalling their
prayers.
Though, counsels to the 1st respondent made
a case for the adjournment of proceedings to give ample time for the
petitioners to file a response to their appeal to the court of 5th
November, 2012, Chief Akpofure SAN, appearing for the petitioner, obviously to
forestall any delay tactics to keep postponing the case, retorted that though
he got his copy late, he had, about that time, begun filing his response that
the hearing should continue. Oshiomhole’s counsels had pleaded that outside of
the non-qualification issue, which carries Airhiavbere’s prayer of
disqualification, there was no other prayer tied to other issues in the
petition; and since the Election Tribunal said it had no jurisdiction to
entertain the case, the court should set that issue aside and consider it a
non-issue. After patiently listening to
the legal counsels of both parties, the learned Justices ruled that a date for
the final pronouncement of the Court of Appeal would be communicated to them at
a later date.
However,
rumours had been circulating among the crowd of supporters outside in the court
premises that the case had been thrown out, resulting in the ecstatic
jubilation of the ACN supporters. The
supporters of the PDP candidate only began their own celebration after being
informed by their leaders, who were streaming out of the court room, that no
such thing had happened.
It would be recalled that on
September 27, 2012, the now disbanded, ‘compromised’ Tribunal, headed by Hon.
Justice Suleiman M. Ambursa, had ruled that the tribunal had no jurisdiction to
entertain the case of non - qualification and certificate forgery alleged
against Comrade Adams Oshiomhole by General Airhiavbere’s Petition, indicating
that it was a pre-election consideration only fit for the High Court.
However, 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 5th
Respondents 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 – 5th
Respondents.”
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 (3rd Respondent) 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.”
Both parties to the legal tussle,
and all other such sundry, correlating interests, would now have to wait for
the ruling of the learned Justices of the Court of Appeal to know whether or
not the Edo State Governorship Election Petitions Tribunal, has legal
jurisdiction to entertain the case of non-qualification charge alleged against
incumbent governor, Comrade Adams Oshiomhole by Major-General Airhiavbere’s
petition.
TheNavigator
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