HOW APPEAL COURT RESOLVED DELTA CENTRAL SENATORIAL ELECTION CONUNDRUM **** “We Can’t Manufacture Jurisdiction,” Appeal Court Tells Amori *** Reaffirms Omo-Agege’s Victory

David Diai

amoriomoageThe Court of Appeal sitting in Benin City, Edo state, on Wednesday 17th February, 2016, dismissed the fresh application filed by Chief Ighoyota Amori, the candidate of the Peoples Democratic Party, PDP, Delta Central Senatorial District election of March 28 and April 25, 2015, seeking the court to set aside its judgment which declared Senator Ovie Omo-Agege, candidate of the Labour Party as winner of the election, Senator Ovie Omo-Agege and Chief Ighoyota Amori.

In a lead judgment written by the Chairman of the 5-man panel of Court of Appeal, Justice A. Aguie, read by Justice Raphael Agbo, the court held that it lacks jurisdiction to hear Amori’s application to set outside it earlier judgment, adding that the application is an abuse of court process.

According to judgment which the other four justices concurred with, stated in part: “What the appellant (Amori) want this court to do is for the court to seat on appeal on a matters already determined, Court of Appeal can’t seat on Appeal, where do we manufacture jurisdiction from?

“Granted that the Appeal Court has an inherent jurisdiction to review cases, nevertheless such inherent jurisdiction cannot supersede constitutional provisions which stated clearly that all electoral matters emanating from National and House Assembly must be dispensed with within 60-Days from the date of delivering of judgment from the lower tribunal.”

Though the appellant stated that the application is a fresh one and is not emanating from election matter, but the appellant (Amori) failed to show the foundation which the application stand, and no application to Court of Appeal can stand on its own.”

While dismissing Amori’s application the court added that, “we affirm the objection of the respondents that this court lack jurisdiction to hear this application in the first place as it amount to an abuse of court process.”

See Also: THANKS FOR THE SUPPORT. IT IS STILL NOT THE END OF THE ROAD – Amori (Press Statement by the Peoples Democratic Party, PDP’s Delta Central Senatorial Candidate for the March 28 and April 25, 2015, Delta State National Assembly Elections).

Recall that the Court of Appeal, Benin City, Edo State, had reserved ruling in a fresh application filed by Chief Ighoyota Amori, the candidate of the Peoples Democratic Party, PDP, in the Delta Central Senatorial District election of March 28 and April 25, 2015, seeking the court to set aside its judgment which declared Senator Ovie Omo-Agege, candidate of the Labour Party as winner of the election.

The appellate court had on December 19, 2015, nullified the election of Amori and declared Senator Ovie Omo-Agege, as winner of the election after it had set aside the verdict of the lower tribunal which upheld the declaration of Amori as winner of the election by the Independent Electoral Commission, INEC.

Not satisfied with the ruling, Amori had petitioned the President of the Court of Appeal and filed an application on notice of appeal in a suit No: CB/5M/2016, urging the Appellate court to set aside its earlier judgment sacking him and uphold his election as declared by the Independent Electoral Commission, INEC, nothing that the same court had earlier upheld his election in Hon. Halims Agoda and APC case.

At the resumed hearing of the case on Friday, February 5, 2016, in Benin before the 5-man reconstituted panel led by Justice A. Aguie, (Chairman), Justice R. Agbo, Justice Omoleye, Justice A. Mustapha and Justice Oniyangi, the counsel to Chief Amori and PDP, Efe Akpofure, SAN, had urged the court to uphold its earlier judgment which had affirmed Amori’s legal victory over APC and Hon. Halims Agoda’s and set aside its verdict on the Omo-Agege/Labour Party case, which Amori lost.

For purposes of clarification, the Court of Appeal, having already given judgment on the same electoral matter from the same Delta Central Senatorial District, in the case of APC and Halims Agoda vs Ighoyota Amori/PDP, where it had affirmed Amori’s victory, had four days later, given another judgment in the case of Ovie Omo-Agege/Labour Party vs Ighoyota Amori/PDP, this time giving victory to Ovie Omo-Agege/Labour Party.

Akpofure had thus argued that the court cannot go back and give a conflicting judgment on a case it had already given a different judgment.

Citing some legal authorities, he had noted that, “the court of Appeal cannot appropriate and reprobate. Having giving judgment on same case, the court is bound by its ruling,” Akpofure declared.

In his own submission, counsel to Senator Omo-Agege/Labour Party, Mr. Robert Emukperuo Esquire, stated that the appellate court lacked jurisdiction to hear the case stressing that the decision of the court of appeal on legislative election matters is final and not subject to appeal or review.

According to him, “with regards to the fact that the constitution gave a 60-day window for hearing and disposal of anything whatsoever that has to do with legislative election, this time frame has since elapsed on December 22, 2015, hence the finality of the case”.

He had told the court that the material evidence, pleading and relief sought in Halims Agoda’s case were quite different from those in Omo-Agege’s case, stressing that when the evidence and relief sought are different, the verdict consequently will be different.

According to Emukperuo, “the basis upon which Amori’s application is predicated is an erroneous assumption which is that in one case (Agoda’s case), the question of who won the election arose and the Court gave a judgment, while in the other case, that same question arose and that the court of appeal gave a different, conflicting decision.

While citing Supreme Court and Court of Appeal authorities on same issue, including the judgment delivered by the current chairman of the 5-man panel, Emukperuo argued that reviewing an earlier judgment of the court of appeal by same court is an invitation to anarchy, because it then means that all electoral matters decided in appeal court would be revisited.

He opined further that, “our own position was to try to demonstrate to the court today that their interpretation does not represent the correct position and we also dealt with the definition of whether the court of appeal itself, whatever the position may be and whether they are right or wrong, have any jurisdiction to even entertain this kind of application, having regards to the fact that the constitution gave sixty (60) days for the hearing and disposal of anything whatsoever that has to do with that election.

“Those sixty days have passed since December 22, 2015 and we are here in February 2016, arguing an application. The sole purpose of those provisions is to ensure that election related matters are terminated. They come to an end and the victors declared by court or by INEC can focus on their legislative and other duties,” Emukperuo said.

According to him, the issue of jurisdiction revolves around two provisions of the constitution, one says that in relation to National Assembly elections, the decision of the court of appeal in legislative election matter is final, while the other says that it is not subject to appeal, and it is not subject to review.

“The constitutional provision says that an election appeal before the Court of Appeal shall be held before sixty (60) days, and the way the Supreme Court and even the Court of Appeal have interpreted this provision they have interpreted as a bar, the first bar is that once a decision is given, it is final, it means that it cannot be faulted. No matter how wrong it is, it cannot be faulted, that is why it is final. They are infallible they cannot be faulted.

“The second leg of the objection is that they have no jurisdiction, because what they are trying to do is to fault the decision. This decision should not have been given because of an earlier decision; you cannot do that because that decision is final. Right or wrong, that decision is final,” he averred with confidence.

 See Also: COURT OF APPEAL REAFFIRMS SENATOR OMO-AGEGE’S VICTORY (Press Statement by Prince Henry Efe Duku, Senior Legislative Aide to Senator Ovie Omo-Agege)

Delta Central Political watchers will recall that Chief Ighoyota Amori was declared the winner of the Delta Central Senatorial zone election, after the main election and a re-run a couple of weeks later, by the Independent National Electoral Commission, INEC.

The declaration had been challenged by Obaris Ovie Omo-Agege, the Labour Party Candidate and Hon. Halims Agoda of the All Progressive Congress, APC, both of whom had filed petitions at the Elections Petitions Tribunal in Delta State.

Amori had defeated Halims Agoda, APC and Ovie Omo-Agege, Labour Party, at the Elections Tribunal, when the Justice Muhammed Umar led panel of Tribunal justices, declared in Amori vs Agoda that the petition of Halims Agoda lacked sufficient proofs, and he had been unable to prove his case beyond reasonable doubt and had not satisfied the burden of proof of his case as provided for in the Electoral Act, as amended.

Amori had equally defeated Ovie Omo-Agege at the Tribunal when, in its ruling, the three-member tribunal panel, headed by Justice L I Boufini, held that the petitioner (Omo-Agege) failed to prove the allegations of electoral irregularities, snatching of ballot boxes, financial inducement of voters and cases of over voting contained in his petition, as declared in his petition before the tribunal.

“The allegations of the petitioner, including his eight witnesses, were based on hearsay, and the law does not entertain arguments based on hearsay. This tribunal has considered the arguments of the petitioner and the defence of the respondents”, the Justice Boufini tribunal panel had ruled.

Both defeated challengers however, not satisfied with the Tribunal judgment had appealed the ruling at the Court of Appeal, Benin, which was the final legal institution and clearing house for National Assembly election matters.

A major political debacle emerged when one Appeal Court ruling read by the Justice H. Barka panel of Appeal Court Judges, gave Ighoyota Amori of the PDP, victory over Halims Agoda of the APC, while another Appeal Court ruling, by the same Justice H.A. Barka led Court of Appeal panel of Justices, a few days later, had upturned the judgment of the lower tribunal presided over by Justice L.I. Boufini and declared the candidate of the Labour Party(LP), Obaisi Ovie Omo-Agege, as the duly elected senator for Delta central in the March 28, 2015 general elections.

Dismissing the appeal in the case of Halims Agoda, in the unanimous judgment, Justice H. Barka, had held that the use of manual accreditation was legal, adding that card readers were meant to complement manual accreditation. Barka said, over voting could only be said to have taken place if the number of votes cast was more than what was in the voters register and “not card readers.”

On the allegation of violence during the election, the judge said the petitioner could not prove his case and declared that “INEC complied with the electoral law in the conduct of the election of March 28 and April 25 in the Delta Central senatorial district election.”

However, in the case of Ovie Omo-Agege, the Justice Barka Appeal Court panel of justices had held that the appeal filed by Omo-Agege was meritorious, and therefore ordered the Independent National Electoral Commission (INEC) to withdraw the certificate of return issued to Amori and give same to the Omo-Agege in the same Delta Central Senatorial election of March 28 and the subsequent re-run on April 25, 2015.

The conundrumatic situation is the Delta Central Senatorial zone election is that while Amori defeated Agoda, at the Court of Appeal, he (Amori) was defeated four days later by Omo-Agege, in the same Court of Appeal. But while both Agoda and Omo-Agege had challenged the declaration of Amori by INEC as the winner of the Delta Central Senatorial zone election of March 28 and the re-run of April 25, 2015, there is no case or petition either from Agoda or Omo-Agege, challenging the involvement or the results by either of them in the said election.

In other words, there was no case between Omo-Agege and Halims Agoda, challenging each other or even their own positions in the election and, since both men are not in Court against each other, the declaration of any or either of them as the Senator representing Delta Central must be determined by some other means. Omo-Agege had come out second, while Halims Agoda had come third in the elections.

Omo-Agege’s claim to the seat, beyond the legal technicality which finally determined the case, may have perhaps been grounded on two planks viz; he was runner up in the original election beating Halims Agoda to a distant third in the Delta Central Senatorial zone polls.

Secondly, by the legitimate fact that he defeated Amori, who had earlier defeated Agoda at the same Court of Appeal, Omo-Agege’s own victory sets him aside as the over-all winner of the election, since he had conquered Agoda’s conqueror.

Ironically, while the defeated Amori has gone to great lengths to challenge the emergence of Omo-Agege, via the Court of Appeal, as the winner of the Delta Central Senatorial zone election, it is not clear if Halims Agoda/ All Progressives Congress, APC raised any legal challenge contesting Ovie Omo-Agege’s victory at the Court of Appeal.

Political analysts and watchers argue that it is Halims Agoda/APC, who really should have been the aggrieved and injured party in this debacle, since he also participated in the Delta Central March 28 and the re-run April 25 Senatorial elections, but most of them opine that Halims Agoda shot himself in the foot, and perhaps deliberately too, by not also filing a petition against Omo-Agege and indeed the entire election process, at the Delta State National Assembly elections petitions tribunal, as he did against Ighoyota Amori.

It is this ‘solidarity oversight’, as many pundits have come to describe it and indeed the final technicality of Jurisdiction beyond the 60 days period to the completion of all Legislative petitions from the Tribunal to the Court of Appeal, that diminished the spice of a credible and perhaps successful legal challenge from Halims Agoda/APC, in the face of the obviously extra-ordinary rulings of the Court of Appeal on the matter and subsequently resolved the conundrum that was the Delta Central Senatorial Election, in favour of Obaisi Ovie Omo-Agege and the Labour Party.

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