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EMEKA NWAOBI TRIUMPHS, AS APPEAL COURT FINALLY STRIKES OUT OSI OKOCHA’S APPLICATION TO SET ASIDE JUDGMENT: The Inside Story

David Diai

 

nwaobiThe Court of Appeal sitting in Benin, the Edo State capital, has finally struck out the case brought before it by the candidate of the Accord Party in the April 28, 2015, Delta State House of Assembly Election for Aniocha North LGA, Mr. Osi Okocha, and the Independent National Electoral Commission, INEC, to set aside its earlier judgment of December 17, 2015, which upturned Okocha’s declaration as the winner of the 2015 Delta State House of Assembly election for Aniocha North Constituency and gave legal victory to Hon. Engr. Emeka Nwaobi.

A three-Man Panel of Appeal Court Judges, led by Hon. Justice J.O. Bada, Chairman and Justices P.M. Ekpe and U.A. Ogakwu, as members, in their ruling on February 24, 2016, struck out the Application of the 1st Respondent Applicant (Osi Okocha), represented by his Counsel, R.O Isenalumhe Esquire, on the grounds that the Court lacked Jurisdiction to entertain the matter.

The tone for the dramatic ruling had been set from the onset of proceedings, when Justice J.O Bada, in his opening comments, had decried the plethora of election petitions litigations, brought by legal practitioners in convoluting processes that were mostly repetitive, even as he had warned that the disturbing situation where the Court was constantly being accused of giving conflicting judgments, as a result of these processes, would not only augur for the bar and the bench, but would be detrimental to the image of the judiciary and the sustenance of democracy, in the long run.

Making particular references to the disturbing ravages and bleak, undemocratic years of the Nigerian civil war from 1967 -1970, occasioned largely by the actions of the civilian populace to manipulate and even disregard the rule of Law, as well as the United States Presidential election in 2000, which pitched then Vice President Al Gore of the Democratic Party, against George W. Bush of the Republican Party, Justice Bada noted that he would not wish Nigeria to return to those years of a breakdown of Law and Order.

In his allusion to the United State elections, the learned Justice of the Court of Appeal stressed that despite the fact that the election was one of the most controversial in American history, in which Gore had won the national popular vote but lost the Electoral College vote after a bitter legal battle over disputed vote counts in the state of Florida thus giving Bush a narrow electoral college vote victory of 271 to 266, the defeated Al Gore did not go to Court to contest the election results in the interest of democracy, which according to the learned Justice Bada is what Nigerian politicians should emulate, after elections, rather than bombard the Courts with all manner of processes after elections, especially on advice from the Bar that the Bench can always give what appears to be conflicting rulings and thus elongate simple election petitions matters.

The sombre mood that greeted this admonition was to pervade through the entire proceedings when the Court, after having sorted out the numerous applications and the several prayers contained in the petitions, the Court then asked the respective counsels to identify the particular application they would wish to pursue, since all the processes were on the same grounds of Application and Appeal.

A dramatic twist was then witnessed when the 3rd Respondent Applicant (INEC), represented by its Counsel, O. Adesoki Esquire, suddenly withdrew all processes earlier filed to the case and they were accordingly struck out by the Panel of Judges in their ruling, after he had been subtle flayed for filing a written application, when he could easily have withdrawn his applications from the Bar.

The Judges then identified the application filed by the Respondent Applicants to set aside the judgment of the Appeal Court panel of December 17, 2015 (CAB/6m/15) as the principal matter on which all the contending counsels hinged their applications and subsequently agreed with the Counsels that the applications of the 1st and 2nd Respondent Applicants and the Preliminary Objections filed by the 1st Respondent Appellant, would be the issue for adjudication and whatever decision or ruling given on this motion on notice would be binding on all.

Opening his argument, Counsel to the 1st Respondent Applicant, Razak Isenalumhe Esquire began by urging the Court to set aside its earlier ruling of December 17, 2015 on the grounds of 21 days notice to INEC used in their judgment to upturn the election victory of his client and now assume jurisdiction to entertain the matter

Making references to Ogboru vs Uduaghan and Uba vs Ukachukwu, 1st Respondent Applicant Counsel, Isenalumhe further argued that the Supreme Court had already given a judgment on the issue of the pre-election matters and he was thus urging the Appellate to adopt same and overrule itself.

Isenalumhe, having exhausted his preliminary argument was then quickly reminded by one of the presiding Judges, that he had been part of a legal team that had come to the same Court of Appeal, only a few days earlier, to argue that the Court had no jurisdiction to entertain a similar matter.

According to the Court, Isenalumhe was a party to the case where a full panel of five (5) Appeal Court Judges had decided that by law, the Appeal Court has a time frame to work and remains the final Court of adjudication in all election petition matters emanating from the Legislative elections. So was he now asking the Court to assume jurisdiction on a similar matter he had vehemently argued against just a few days earlier?

“A full panel of five (5) Appeal Court Judges gave a ruling on a matter of this same nature, in which you were a party. You have now asked us to hear your case and we want you to assist us in the interest of the Law. Do you want us, a three (3) man panel of Appeal Court Judges, to set aside the ruling of a full complement of Appeal Court Judges, when you know very well that the Court of Appeal is the final stage for all petitions from legislative elections? Where do we get the jurisdiction from on this matter. On which jurisdiction do we focus on? You know very well that on this matter, the judgment given by the Court of Appeal is final. So, Please tell us, where do manufacture the jurisdiction to listen to your Appeal?” they asked him.

An obviously cornered Isenaluhme, sensing that he had been boxed into a legal cul-de-sac from which there was no logical argument to extricate himself, tried to navigate his way out but when the Court pointedly asked him to commit himself on the issue of whether the Appeal Court should disregard the provisions of the Electoral Law and the Constitution and proceed to set aside its own earlier ruling, Isenalumhe was overwhelmingly compelled to eat the humble pie, apologize to the Court and embrace the honourable option, by withdrawing his petition immediately,

Counsel to the 2nd Respondent Applicant (Accord Party), Barr. Olusola Rhiogbere also complied and withdrew his own processes, thus bringing the case to a dramatic end.

Having unanimously arrived at this logical conclusion, the Judges in turn, admonished both the legal practitioners and the laymen in Court, making the point that members of the Bar should be careful how they approach the court with frivolous processes ad applications, in order to satisfy their clients, even as they advised that it is the duty of every individual in the country, especially those that sit at the temple of Justice to make the judiciary better and not to destroy it.

Advising the bar to be mindful of the human nature of members of the bench, the Judges, while decrying the often bandied logic by lawyers that if you don’t succeed in convincing the Court with the avalanche of processes filed, you can at least try to confuse them, advised the bar that as practitioners in the temple of Justice, they should always try to advise their clients properly and avoid filing numerous frivolous and unnecessary petitions, since there will always be legal casualties, especially in Courts of Final Jurisdiction like the Court of Appeal, which in most cases may have resulted from the avalanche of processes filed, with the intent to confuse justice and occasion some of the conflicting judgments that have cast aspersions on the Judiciary recently. Elections should not be a do or die affair, they cautioned.

In given the ruling, chairman of the three-man panel of Appeal Court Justices, Justice B.O Bada, averred thus: “The application filed by the 1st Respondent Applicant to set aside the ruling of this Court having been withdrawn, is hereby struck out”  

On this premise, the Court therefore struck out the application brought before the court by the 1st and 2nd Respondent Applicants for lacking jurisdiction.

The Judges also had some glowing words of praise for Counsel to the 1st respondent, Richard Isenalumhe Esquire. “We are happy you have withdrawn this application. It shows you are honourable. In every contest there must be a winner and a loser. We must sanitize the bar and what you have done today will go a long way to bring credibility both to the bar and bench and restore the confidence of the people in the judiciary, as the temple of Justice”, they told him.

Interestingly, the 1st Respondent Applicant and ousted member of the Delta State House of Assembly for Aniocha North constituency, Mr. Osi Okocha, who had mobilized hundreds of his supporters from Delta State to the Court of Appeal in Benin, and who himself had made a confident entrance into the Court room in the middle of proceedings, perhaps in anticipation of a favourable verdict, was visibly crest fallen, as the Court struck out his case and subsequently made a quiet exit with his loyalists after the proceedings.

Counsel to the 1st Respondent Appellant (Hon. Emeka Nwaobi), Robert Emukperuo Esquire, in an interview with newsmen after the Court ruling, said the Counsel the 1st Respondent Applicant, had done the honourable thing by withdrawing the application and thus saving the Appeal Court Justices the rigours of having to listen to cumbersome, unnecessary and convoluting arguments, in a matter that had already been settled by law.

“I was Counsel in the Amori vs Omo-Agege case and the learned Justice Amina Adamu Augie gave a very seminal ruling to the effect that once the 60days stipulated by law for election petition matters elapses, there is no more jurisdiction by the Court of Appeal as the final Court for legislative elections petitions, to entertain any further matter”.

Speaking further, a beaming Emukperuo had stressed that on two occasions it has been established that once the full panel of Appeal Court Justices has enunciated any ruling, the rest are bound to follow that ruling and so it would have been quite dishonourable on the part of the Respondent applicants to ask the Court to depart from its own judgment.

He said he was happy because the issue before the court was a clear-cut case of the fact that his client (Hon. Nwaobi) won the election abi initio, but was denied of the victory even by the Tribunal, irrespective of the evidences provided from the Voter

Register, Accreditation and Card Reader, stressing that they had approached the Appeal Court on five grounds of litigation, from which the panel picked four and decided majorly on one, which bordered on the fact that by law, Osi Okocha was not qualified to stand for the election, having defaulted in the INEC electoral guidelines of 21 days of notice to INEC.

In his own comments, Counsel to the first Respondent Applicant (Osi Okocha) Robert Isenalumhe Esquire noted sadly that the matter was beyond any intervention from the Court of Appeal.

“It is quite sad but there is nothing we can do except to take the path of honour and withdraw the matter. It is our duty as members in the temple of Justice to protect the Judiciary and not encourage anything that would bring dishonor to the noble institution. That would not be in the interest of the bar and Bench”

Continuing, Isenalumhe said “The Court has the power to set aside the judgment, but in this instance it is not the Court of Appeal. We will have to wait for another opportunity to really test this provision again and see what happens. It is painful the way the matter was resolved but sometimes even in law there must be casualties”, he said despondently.

Responding to his final legal victory at the Court of Appeal, a visibly elated Hon. Engr. Emeka Nwaobi, in a brief chat with newsmen in his office at the House of Assembly complex, Asaba, gave all the glory to God for seeing him through the trying period of the legal battle from the Tribunal to the Court of Appeal, even as he expressed his profound gratitude to the people of Aniocha North for their undiluted support and prayers.

“We had believed that with the December 17 ruling and my subsequent swearing-in and inauguration into the House, we had finally settled the matter, so we were surprised to learn that we still had another date with the Court of Appeal on the same matter. But I had faith that the Almighty God I serve will never let me down and having been briefed by my very excellent legal team on what was before the Appeal Court, I knew that victory will surely be ours at the end of the day.

“I give God all the Glory and thank my people of Aniocha North for the support and prayers. It now time to put the past behind, settle down to serve my people and justify the mandate and confidence reposed in me to be their representative in the Delta State House of Assembly”, the victorious Hon. Nwaobi enthused.

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