The legal battle between Comrade Adams Oshiomhole, candidate of the Action Congress of Nigeria and Maj.-Gen Charles Airhiavbere, candidate of the Peoples Democratic Party in the July 14, 2012 governorship election in Edo State, yesterday, shifted to the Appeal Court sitting in Benin City.
The PDP candidate (Appellant) had gone to the appellate court seeking a declaration that the issue of qualification is a matter which the election petitions tribunal should assume jurisdiction on, while the ACN Candidate went to the Appeal court seeking to quash the remaining reliefs sought by the appellant at the Tribunal, on the grounds that the live issue of qualification had already been determined by the tribunal.
According to Chief Efe Akpofure, Counsel to Airhiavbere, “the issues before your Lordships are clear. Whether the issue of qualification is a pre-election matter, therefore the Tribunal has no jurisdiction. I submit with the greatest respect that that was erroneous and does not have the support of the law and the Electoral Act
“The issue whether materials for qualification were adequately pleaded before the lower tribunal was not in doubt because the tribunal in its own ruling admitted so at Page 879, Vol 2 lines 11-16”
Airhiavbere contended that the issue of qualification is not a pre-election matter that ought to have gone to the High court, saying “the lower tribunal was therefore wrong to proceed to strike out reliefs 1 and 2 in the petition.”
However, Counsel to Comrade Oshiomhole (1strespondent) Chief Wole Olanipekun, SAN, countered the appellant’s argument saying the PDP which sponsored the appellant is not in court. He said: “My Lord, this is an appeal by an orphan and the court is not an orphanage. His party is saying we concede the election, but he is saying we want to file an appeal.”
He maintained that “there is no ground challenging disqualification or not of the 1st Respondent. They only mentioned corrupt practices. Appellant has also argued that the lower tribunal ought to have taken cognizance of the provisions of the Constitution. Appellant specifically pleaded the Electoral Act and there was no reference to the Constitution and that was the argument we proffered, appeal is a continuation of hearing.
“If there is complaint that the forms submitted in 2007 is different from that submitted in 2012, then those are issues they ought to have ventilated before the High Court which could have led to a disqualification and not annulment of election.
“My Lord, we are not here for magic, when you are pleading non-qualification, it will be non-qualification as per the provisions of the constitution. The fora for ventilating non-qualification as provided by the Electoral Act, particularly in respect to declaration in INEC Forms as provided by Section 31 of the Electoral Act is either the Federal High Court or State High Court pre-election and not ante-election.”
In his own application, Oshiomhole also sought to quash the remainder of the case before the Tribunal, saying that the tribunal “rightly agreed that there was no petition before it and struck out the main reliefs instead of striking out the entire petition. There is no live issue remaining before lower tribunal.
“The court is not to try hollow rituals, it is a serious business when you go to the court. It’s not picnic, its not an adventure and that must be taken seriously by all of us, litigants, lawyers alike.”
He begged the Appela Court to hold that “there is no live issue before the lower tribunal to countenance at all.”
The legal icons cited several cases to back their arguments.
Chief Wole Olanipekun, SAN led a battery of lawyers to represent Comrade Oshiomhole; Chief Efe Akpofure also led other legal titans to represent Maj.-Gen Charles Airhiabvere, Mr Ade Oyeyipo, SAN led others to represent the 2ndRespondent, Action Congress of Nigeria and Mr E.R Emukperuo led two others to represent the 3rd to 5th Respondents (INEC, Resident Electoral Commissioner and Returning Officer)
The court presided over by Hon Justice H.M Ogunmiju and supported by Hon Justices S Yakubu and T.O Awotoye reserved judgment in the appeal to a later date.
Both Governor Oshiomhole and Maj-Gen Airhiavbere (rtd) were in court, yesterday.
