Maj.-Gen Charles Airhiavbere (rtd).
The Court of Appeal in Benin City, Edo State, Wednesday reserved judgment on the appeal filed by the Peoples Democratic Party (PDP) governorship candidate in the July 14, governorship poll, Maj.-Gen Charles Airhiavbere (rtd).
Airhiavbere had gone to the court to seek a declaration that the issue of qualification is a matter which the Election Petitions Tribunal should assume jurisdiction on, while the state Governor, Adams Oshiomhole, is at the court seeking to quash the remaining reliefs sought by the appellant at the tribunal.
When the matter came up yesterday, counsel to Airhiavbere, Chief Efe Akpofure, said: “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 on page 879, Vol 2 lines 11-16.”
Airhiavbere contended that the issue of qualification was 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 Oshiomhole (1st respondent), Chief Wole Olanipekun (SAN), countered the appellant’s argument, arguing that the live issue of qualification had already been determined by the tribunal.
Olanipekun said the PDP which sponsored the appellant was 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. The appellant has also argued that the lower tribunal ought to have taken cognisance of the provisions of the Constitution. The 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, it is not an adventure and that must be taken seriously by all of us, litigants, lawyers alike.”
He begged the Appeal Court to hold that “there is no live issue before the lower tribunal to countenance at all.”
Both Governor Oshiomhole and General Airhiavbere were in court yesterday.