Understanding the Judgement of the Federal High Court in PDP vs Ogboru

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Emmanuel Uduaghan

Without waiting to get a copy of the judgment of the Federal High Court, Asaba which declared Great Ogboru as not qualified to participate in the January 6th, 2011 Delta State Governorship re-run, many have jumped into conclusion that the judgment was given without jurisdiction. Others have condemned the trial judge, Justice Ibrahim M. Buba in sheer disregard to the industry that went into the 109-page judgment he delivered.

It has since become the practice to condemn Judges and their judgements when they rule against us. In a statement that can best be described as the most uncharitable commentary on the Nigerian judiciary in recent times, Ogboru described the judgment as "irresponsible". Ironically, when this same judge ruled in favour of Ogboru in the tenure elongation case, he was very responsible! For someone who wants to be governor, one should have expected him to be more circumspect, especially against the background that, he is asking respected men of the judiciary to declare him as Governor. Anyway, there is a language that befits the status of a Governor; there is a language of area boys and not many were surprised at the outburst from someone who had forcefully attempted to take over government in 1990. His desperation to take over government in Delta State is a signal that he may have ulterior motive for wanting to be governor other than service.

And even though the Delta State Governorship Election Tribunal is separate from the Federal High Court, it will be interesting to see how the judges on the tribunal would deliver judgment on Monday, July 25th without taking Justice Buba's ruling into cognisance. At least, as judges, they ought to know that the judgment of a court should not be ignored whether the judgment was right or not. If they as judges of a tribunal treat with disdain the judgment of a Federal High Court, why on earth should they expect others to obey their own judgment?

Giving the misconceptions making the rounds concerning the Asaba Federal High Court judgement there is need to throw more light on some of the grey areas, if only to provide illumination to those who may be genuinely confused by the emerging scenario from Asaba, the Delta State capital.

First, a brief introduction of the facts would suffice. It is on record that the Benin Division of the Court of Appeal on November 9th, 2010 delivered a judgment nullifying the April 2007 governorship election won by Dr. Emmanuel Uduaghan of the Peoples Democratic Party (PDP). The election was nullified at the instance of the governorship candidate of the Democratic Peoples Party (DPP). In nullifying the election, the Appeal Court ordered a re-run.

The re-run was fixed by the Independent National Electoral Commission (INEC) for January 6th, 2011. However, on December 23, 2010, the PDP Chairman in Delta State, Chief Peter Nwaoboshi and his party filed an originating summons before the Federal High Court in Abuja seeking among other reliefs that Ogboru was disqualified from taking part in the court ordered re-run election on the grounds among others that he was not validly nominated by his party DPP; that his nomination was not done within the 120 days allowed by the Electoral Act 2006; that less than 50 people nominated him contrary to INEC's regulation that not less than 50 registered voters must nominate a candidate; and that among those who nominated him were people who were not registered voters and therefore lacked the legal capacity to nominate him.

It is important to point out that the case was filed on December 23, 2010 a couple of weeks before the January 6th re-run. Justice Gabriel Kolawole of the Abuja Federal High Court after the case was mentioned three times, transferred the case to the Asaba division.

In their reaction to the case, DPP and Ogboru filed a preliminary objection based on the following grounds: that the case was statute barred; that there was no cause of action; that the court lacked the jurisdiction to hear the case; that the case was an abuse of the process of the court and that they were not properly served with the originating summons.

The objection was argued and was dismissed. First, the trial judge held that since the case was filed before the re-run election took place, it remained a pre-election matter which could not have been filed before the election tribunal. He made references to Supreme Court authorities to the effect that regulars court do not lose jurisdiction simply because election had taken place.

He also held that the fact that the re-run election was ordered by the Court of Appeal in Benin did not remove the jurisdiction from the court to inquire into whether any of the parties taking part in the re-run have fulfilled all the conditions precedent to the holding of the election. He rejected the argument of DPP and Ogboru that it was too late to inquire into the issue of nomination. The judge cited appellate courts' decision to support his position.

Addressing the issue raised by Ogboru that since the April 2007 election had been annulled and a re-run ordered by the court, the issue of his nomination had become spent and was no longer a live issue, the Judge adopted the reasoning of counsel to Uduaghan, Chief Wole Olanipekun SAN on why Ogboru was still maintaining a petition on the January 6th, 2011 re-run when he (Ogboru) took part in the April 2011 governorship election

Critics of the judgment did not want to know whether Ogboru complied with conditions precedent before he could take part in a governorship election or not. They are merely interested in his being declared governor. While non lawyers could be excused, legal practitioners owe the country a duty to insist on due process of the law. If someone who wants to be Governor blatantly refused to comply with electoral laws, how would he comply with the provisions of the constitution which would govern his conduct?

The court also rejected the argument of Ogboru that there was a presumption of regularity by virtue of the judgment of the Court of Appeal in Benin which ordered a re-run. He said: “It is equally the law today that it is proper for new reliefs to be founded upon a declaration already made by the court.” He cited the case of Dantata V Mohammed (2007) (Pt.664)176 at196.

In his response to the argument that the case was an abuse of the court process, Justice Buba said: “On the issue of abuse of the court process which Ogboru and his party labored to argue, there is no dispute that this suit was commenced in December 2010.”

At the end, the judge found as a fact that Ogboru was not validly nominated by his party. He took time out to address the contention by the party that the issue was an internal affair of the party on which the court had no jurisdiction to inquire into. He held that section 32(1) and (2) of the Electoral Act 2006 which was in issue was mandatory and that failure to comply was fatal.

Before concluding his judgment, Justice Buba asked “The question for determination is whether Ogboru met up with requirement of the electoral law?” He answered the question in the negative. He cited the provision of Section 32(1) which provides thus “Every political party shall not later than 120 days before the date appointed for a general election under the provisions of this Act, submit to the commission in the prescribed forms the list of the candidates the Party proposes to sponsor at the elections.”

He found as a fact that Ogboru did not comply with the above quoted provision and held that he stands disqualified from contesting the Delta Gubernatorial re-run election ordered by the Appeal Court, Benin.

We recommend the judgment to critics. We also commend the trial Judge for the industry he put into the case.One of the options open to the parties who were disappointed by the judgment was to challenge it on appeal and not to engage in disparaging the integrity of the trial Judge and the entire Judiciary.

It must also be remembered that it was the same Justice Buba who threw out Dr Uduaghan's motion seeking to benefit from the decision of the apex court that granted extension to five other governors. In that instance, the governor accepted the judgment, not withstanding that many eminent jurists felt that he should not participate in the last April elections because he was sworn in before the new electoral law was signed by President Goodluck Jonathan.

That is the hallmark of a statesman and characteristics of a man who believes in the rule of law. He does not prevaricate. Neither does he approbate and reprobate as has been the lot of Ogboru who seems bent at hijacking power at all costs.

No doubt, justice and history would tell the story of Governor Uduaghan with very kind and charitable words!

Ogaga-Oghene Akpokona , LLB
Abraka, Delta State