Dr. Emmanuel Ewetan Uduaghan V. Chief Great Ovedje Ogboru & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

RAPHAEL CHIKWE AGBO, J.C.A. (Delivering the Leading Judgment)

The appellant and the 1st respondent, along with other candidates, had contested the Governorship Re-run election to the office of the Governor of Delta State as ordered by this Court on the 9th November, 2010. The said rerun took place on 6th January, 2011. At the end of the polls the 4th respondent the Independent National Electoral Commission (INEC) declared the appellant as the winner of the aforesaid election, having scored the highest number of lawful votes cast thereof.

The 1st respondent approached the Delta State Gubernatorial Election Tribunal, sitting at Asaba, vide a petition which he filed on 27th January, 2011, challenging the return of the appellant as the winner of the election of 6th January, 2011. The Election Tribunal aforesaid, hereinafter referred to as the lower tribunal, after hearing witnesses for the parties and the addresses of the respective counsel for the parties, came to the conclusion/decision that the petition was not proved and same was dismissed on 25th July, 2011.

The petitioners/(1st and 2nd respondents herein), appealed to this court against the dismissal of their petition by the lower tribunal in Appeal No.CA/B/EPT/227/2011 on 26th July, 2011.

The appellant, on his part, being dissatisfied with the resolution of Issue 1 which bordered on the jurisdiction of the lower tribunal to entertain the petition, which issue 1 was resolved against him, appealed against that part of the judgment of the lower tribunal dated 25th July, 2011 vide appeal no CA/B/EPT/229/2011 now under consideration.

The appellant had filed a Notice of Preliminary Objection at the lower tribunal on 1st March, 2011 challenging the jurisdiction of the lower tribunal to entertain the petition of the petitioners. Again, on 4th July, 2011, the appellant filed a Motion on Notice whereby, he challenged the competence of the petition and the jurisdiction of the lower tribunal to hear and determine the aforesaid petition, on the ground that the same had become spent, academic, hypothetical and disclosed no cause of action. The lower tribunal on 30th June, 2011 directed that the objection by the appellant against the competence of the petition would be taken at the end of the trial and would be considered in the judgment of the petition, for constraint of time. In the final address of learned Senior Counsel to the appellant at the lower tribunal, he addressed the issue of the competence of the petition and the jurisdiction of the lower tribunal to entertain it as at pages 585 – 611 of the Record of Appeal, Volume Two.

The lower tribunal, considered the question of the competence of the petition and its jurisdiction to entertain it under issue I formulated by the lower tribunal and at the end, resolved the said issue I against the appellant. There are four grounds of appeal filed by the appellant against the resolution of the said issue I against him, by the lower tribunal. The four grounds of appeal as contained at pages 1064-1068 of the Record of Appeal, Volume Two, are to wit:

GROUND 1

“The lower Tribunal erred in law by assuming jurisdiction over and adjudicating on the petition presented before it, when the tenure relevant to the Governorship Election being challenged has elapsed.

PARTICULARS OF ERROR

i. The tenure of the appellant as Governor of Delta State, particularly in relation to the election being challenged by the petitioners elapsed or ended on 29th May, 2011.

ii. There was/is no life issue before the lower tribunal over which it could properly assume jurisdiction and adjudicate on.

iii. The entire petition before the lower tribunal was abusive of the processes of court, as well as academic and moot.

GROUNDS 2