Governor, Comrade Oshiomhole
Tobi Soniyi in Abuja
The Supreme Court has aside the judgment of the Court of Appeal Benin which ordered that a fresh tribunal be constituted to determine whether Edo State Governor, Comrade Oshiomhole possessed the qualifications for election as governor.
In a judgment delivered by Justice Rhodes Vivour, the Supreme Court said that the Peoples Democratic Party governorship candidate, Major General Charles Airhiavbere (retired) did not specifically plead the issue of his qualification.
The court upheld the arguments of Chief Wole Olanipekun, SAN who had pleaded with the court to uphold the appeal.
Six other justices of the court agreed with Justice Rhodes-Vivour.
The governorship election tribunal had refused to consider the allegation that Oshiomhole did not possess the qualification to contest for governor.
However, the Supreme Court however ordered the parties to go back to the tribunal and determine the allegation of irregularities.
It will be recalled that the Court of Appeal in Benin had upturned the tribunal's decision and ordered the parties to return back to a newly constituted tribunal for the determination of whether Oshiomhole had the basic qualifications or not.
The governor was dissatisfied with the Appeal Court judgment and consequently appealed to the Supreme Court.
Arguing the appeal, Olanipekun said there was no basis for the judgment of the court of appeal.
According to him, the petitioner grounded his petition on corrupt practice and none compliance with the Electoral Act 2010, but not on Oshiomhole non qualification.
He said that the Court of Appeal made a case for the Respondent which the Respondent did not make for himself.
The petition challenges results in five out of 18 local governments. He said that PDP honourably withdrew from the petition because it was hopeless.
Responding, counsel to Airhiavbere, Chief Efe Akpofure, SAN asked the court to dismiss the appeal and affirm the judgment of the lower court.
He said that the tribunal did not say that there was no ground to sustain the allegation that Oshiomhole did not have the qualification to run for governor.
He said that the fact that non qualification was not made a separate ground was not a basis to hold that there was no ground in the pleadings to sustain the allegation that Oshiomhole was not qualified.
Akpofure called on the Supreme Court to read the whole petition as a whole.
He also argued that the tribunal found that the allegation of Oshiomhole's non qualification was raised in the pleading but held that it was a pre election matter.
In the appeal, Oshiomhole faulted the judgment of the Court of Appeal on six grounds.
His lawyer, Olanipekun argued that the Court of Appeal erred in law when it held that the tribunal had jurisdiction to adjudicate on the alleged acts of non-qualification of the governor in the petitioner's pleadings.
He said that the judgment of the Court of Appeal was based on sentiments and not law.
He stated that there was no specific pleading in the petition challenging the governor's non-qualification to contest the Edo State Governorship Election.
The learned Senior Advocate said that the issue raised by the petitioner regarding Oshiomhole's qualification to contest the election was a pre-election matter upon which the tribunal had no jurisdiction to adjudicate.
Olanipekun said that the Court of Appeal breached Oshiomhole's right to fair hearing when it held that the tribunal should have determined the petition against him on its merit.
He said: "By the judgment of the lower court, Appellant (Oshiomhole) is being asked to go and defend allegations which have not been made against him."
He consequently asked the Supreme Court to set aside the judgment of the Court of Appeal and restore the judgment of the tribunal.
In his petition, the PDP candidate had alleged that Oshiomhole was not eligible to contest the election as a result of his academic qualification, as provided for in the Electoral Act and the 1999 Constitution.
The PDP candidate claimed that Oshiomhole only tendered a Modern School Leaving Certificate without a primary School certificate, which by the constitution did not qualify him to contest the election.
He said that the modern school certificate he (Oshiomhole) presented on oath to INEC had also been found to be ingenuine and fake.
The Court of Appeal Benin had last November set aside the decision by the Election Petitions Tribunal.
The tribunal had declined to go into the issue of qualification on the ground that it was a pre-election matter.
In a unanimous decision however, the Appeal Court dismissed a cross-appeal by Oshiomhole, describing it as mere “academic matter”.
The court ordered that Airhiavbere’s petition should be referred to the lower tribunal for a fresh trial.
Chairman of the three-man panel, Justice Helen Ogunwumiju, in her lead judgement ruled that the Acting President of the Court of Appeal should reconstitute the tribunal to hear Airhiavbere’s petition, saying that there were triable issues in his petition.
The court held that the tribunal was wrong to have held that it lacked jurisdiction to entertain the petition on the grounds that the issue of Oshiomhole’s qualification to contest the election raised by petitioner was a pre-election matter.
According to the court, the tribunal, by the provision of Section 177 of the 1999 Constitution (as amended), has jurisdiction to entertain the petition.