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Published On: Sun, May 4th, 2014

Can Ogboru Unseat Uduaghan before 2015 elections?


LAGOS MAY 3RD (URHOBOTODAY)-The Easter holidays may have stunted the renew hearing last Tuesday of the Democratic Peoples Party(DPP) governorship candidate, Chief Great Ogboru’s case, claiming that Governor Emmanuel Uduaghan was not duly elected Delta State Governor.
The Supreme Court could not sit on Tuesday (22/4/14) as the Judges were said to have travelLed for holidays. The Delta State DPP Chairman, Chief Tony Ezeagu told the Urhobo Times that the court wrote a letter to the party explaining that, due to the Easter holiday, the court could no longer sit as scheduled and that the DPP would be informed at a later date on further development. It will be recalled that early this year, Chief Ogboru while responding to a question on why he was so sure of occupying government house before 2015, said, “first, the merit of our case has not been heard at all and we are challenging the legitimacy of section 285 of the amended constitution 1999. It is in process and we want that insertion declared illegitimate and unconstitutional. It did not meet the mandatory requirement of section 93 on what was needed to amend chapter 4 of the constitution. The provision is four-fifth of all the members of the National Assembly that is required to amend that section of the constitution. Those who amended section 285, 6 and 7 did not have mandatory requirement of four-fifth. We hope that section will be declared unconstitutional. When that happens, the merit of our case will be heard.” In June last, the Supreme Court, for the second time, dismissed Chief Ogboru’s application seeking to compel the court to set aside its earlier judgment, which upheld the election of Dr Emmanuel Ewetan Uduaghan of the Peoples Democratic Party. In a judgment written by Justice Clara Ogunbiyi but read by Justice Suleiman Galadima, the court said the application to set aside its earlier judgment was an abuse of court. It consequently ordered Ogboru to pay Uduaghan N50,000 as cost for filing the frivolous application. The court noted that a similar application was filed and withdrawn by Ogboru’s first counsel, Sebastine Hon, SAN. It further held that the allegation that Hon withdrew the application without the authority of Ogboru was not substantiated. Justice Ogunbiyi upheld the arguments of Chief Wole Olanipekun, SAN, to the effect that a counsel had unfettered authority to conduct his client’s case. Olanipekun, who represented Uduaghan, had argued that when briefed, a lawyer had the full control of his client’s case. He could compromise the case, he could agree to a judgment and that the only choice the client had was to withdraw the instruction given to the lawyer. He further held that there must be an end to litigation. The Supreme Court adopted Olanipekun’s submissions and applied the principle and held that Ogboru did not prove that Hon acted without authority when he withdrew the initial application to set aside the judgment. The court held that Hon had withdrawn the application and the plaintiff was bound by the withdrawal and that to file a similar application was an abuse of the process of court. In the circumstance, the court did not go into the merit of the application. Justice Ogunbiyi also frowned at the allegation by Ogboru’s new lawyer, Dr Dickson Osuala, that Hon compromised himself in the manner he withdrew the application. She held that it was unfair to allege that Hon compromised himself, and cautioned lawyers against allowing their clients to use them to disparage the legal profession and legal practitioners. Specifically, after the Supreme Court upheld the election of Uduaghan, Ogboru went to the apex court with a fresh application, asking that the judgment be set aside and that a new panel be constituted to hear his appeal on the grounds that his counsel withdrew the matter without his consent. It will be recalled that, Chief Ogboru ex-lawyer, Barr. Sebastine Tar Hon (SAN) predicted that he cannot win because the Supreme Court Judges said the case was capable of bringing the apex court on collision course with politicians and ridicule the judiciary. In an interview, Barr. Hon said “the justices of the Supreme Court told me that I was bringing the apex court on collision course with politicians and ridiculing the judiciary. They said they had read all that I had filed, including the ones filed the previous Friday and they had come to the conclusion that nothing on earth would make them grant the application. There is electronic evidence to back what I have said. At that point, it was only responsible and reasonable for me to withdraw the application. That was exactly what I did. Responding to a question whether the action was predetermined, he said “if I had a predetermined intention not to move the application, why did I prepare and file a reply on points of law on the Friday just before the Monday that the matter was to come up? If I had anything to hide, why did I insist on that same day that Chief Ogboru put up appearance in court on the day I was to move the application? Why did I have to worry myself telling the Supreme Court, ab initio, that I had an application and was ready to move it?” “Again, why did I reject the first offer by the Supreme Court that I should withdraw the application? Was it not suicidal and bad practice when the Supreme Court raised grave allegations against me, for me to have allowed even one more second to pass without openly showing the Supreme Court that I was not that character they were describing me to be?” Explaining his own side of the claims that he withdrew the case from the Supreme Court without consulting Chief Ogboru, Barr. Hon said, “I went to Lagos in April 2012 for a matter at the High Court, Ikeja. After the matter, Chief Great Ogboru called me and said somebody gave him my number over a matter he heard at the Supreme Court. We arranged and when we met, he told me the Supreme Court has dismissed his appeal and he wanted me to apply that the Supreme Court should set aside the judgment. “I told him that the Supreme Court hardly overrules itself, after delivering a judgment. He persisted and I told him that I would think about it. “Luckily for me, I stumbled over an authority. A decision of the Supreme Court reported in 2011: Dingyadi against INEC, where the apex court overruled itself in a particular decision it gave, not that it set aside its previous decision, which was given in another matter. So, I felt encouraged. When Great Ogboru called me to give him feedback, I told him, with the authority, we could boldly approach the Supreme Court. ” In the course of my research too, I came across an authority: Adegoke Motors against Adesanya, reported in 1989, where the Supreme Court stated that if any counsel felt that the apex court had made an error in judgment, the counsel should be bold enough to approach the Supreme Court to overrule itself. According to him, based on these two authorities, he filed an application to have the decision overturned. “In essence, I was asking the Supreme Court to sit back and determine the appeal or refer it back to the Court of Appeal. If they said that the judgment of the Court of Appeal was a nullity, I told them that it was not proper, with due respect, to say that the appeal that made them to make the pronouncement was a nullity. It was on that basis that I accepted to file the application at the Supreme Court.” He explained further that, when the matter came up at the Supreme Court, he indicated openly, which could be verified from the records of the Supreme Court, that he was ready to move my own application to have the Supreme Court overrule itself or set aside its judgmen
Source: Urhobotimes

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