Being a Press statement issued May, 10, 2012 by Doyin Iyiola, media consultant to Chief Great Ogboru and made available to Blank NEWS Online.
Chief Great Ogboru, the governorship candidate of the Democratic Peoples Party in the 2011 governorship election in Delta State has returned to the Supreme Court to challenge the court’s dismissal of his appeal. In a bold move to get justice, Ogboru has asked the court to reverse its March 2nd 2011 decision which struck out his appeal against the election of Governor Emmanuel Uduaghan. Ogboru insists that the court made a serious error and it must correct itself.
According to Ogboru’s lawyers, Ogboru having successfully argued his Consolidated Appeals before
the Supreme Court; and the apex Court having agreed with him, that the Court of Appeal committed
a fundamental error, Ogboru ought to have gone home celebrating his victory. They argued that
it is settled law that a party should not be punished for the error of the Court over which such party
has no hand or fault.
Again, Ogboru’s lawyers argue that by not remitting the Appeals for rehearing on the merit or the
Supreme Court itself not adjudicating on them on their merit, the fundamental and other
constitutional (for example appellate) rights of Ogboru have been truncated. According to the
lawyers, the Supreme Court, on the authority of Dingyadi vs. I.N.EC., supra, has the jurisdiction,
indeed, the duty, to intervene and set aside its judgment in those Consolidated Appeals.
The lawyers further advanced their argument by pointing out the inherent dangers if the Supreme
Court fails to reverse the 2nd of March judgement. They are of the view that an avalanche of
available authorities show that once the Supreme Court reaches a finding that the judgment of a
lower Court was vitiated by a fundamental vice or was a nullity; it has always acted to ensure that
justice is done on its merit – by either assuming jurisdiction to determine the Appeal before it on its
merit or ordering a rehearing by the lower Court found to have committed the fundamental breach.
According to the lawyers, a dangerous precedent will be created if the Supreme Court refuses to
vacate its judgment in the Consolidated Appeals and also persists in being aloof when breach of
section 285(6) and 285(7) has been established. Highlighting some of the possible fallouts of the
court not reversing itself on Ogboru’s appeal, the lawyers pointed to a future situation in which both
the Lower Courts and later the Supreme Court would experience difficulty in dealing with other
forms of nullity going to jurisdiction. They reminded the judges that according to both English and
common laws, the effect of a nullity is settled: the act nullified is deemed not to exist. And in most
cases, the Courts, particularly the Supreme Court, have always reacted proactively by ordering a
reverse to status quo, aimed at achieving substantial justice.
By 2015, the lawyers believe that election tribunals and even the Court of Appeal may likely refuse blatantly to follow age-long precedents laid down by the Supreme Court, estimating, as it were, that once the constitutional embargoes in section 285(6) and 285(7) of the Constitution are overshot, the Supreme Court will become powerless. The lawyers argue that this cannot be the intendment of the Constitution, which has made the Supreme Court the citadel of justice in Nigeria. The Supreme Court, according to the lawyers, has been exercising, commendably over the years, appellate and supervisory jurisdiction over all lower courts.
According to the lawyers, where justice is not administered, there exists the real possibility of “chaos” in the system. And given Nigeria’s rancorous political history; and given the present security challenges the country is facing as a Nation, the Supreme Court as the conscience of the Nation should rise up to the challenge and toe its long-established line of ensuring hearings on the merit when grave infractions resulting to nullities are committed by Nigeria’s lower Courts.
The lawyers conclude by praying that the Supreme Court, under section 22 of the Supreme Court Act, should not only set aside its judgment in the Consolidated Appeals delivered on 2nd March, 2012 and assume jurisdiction over them, but also make crucial consequential orders as it did in Amaechi vs. I.N.E.C., supra. In the alternative, they enjoined the Supreme Court to, in line with Ifezue vs. Mbadugha, Odi vs. Osafile, Kpema vs. State, etc, order rehearing of Ogboru’s appeal on its merit by the Court of Appeal.
In a motion filed at the Supreme Court on Tuesday, Ogboru is asking the court to nullify its verdict and set up a new panel of judges either of the Supreme Court or the Court of Appeal to decide on his appeal based on its merit. He also wants the court to make fresh orders it deems fit in the circumstance to ensure that justice is served in this matter.
Ogboru is specifically demanding the following reliefs from the court:
- An order setting aside the judgment of this Honorable Court (Supreme Court) in Consolidated Appeals Nos. SC.18/2012 and SC.18A/2012: CHIEF GREAT OVEDGBE OGBORU & ANOR. VS. DR. EMMANUEL OWETAN UDUAGHAN & 2 ORS.
- An order directing the said Consolidated Appeals to be determined on their merit, either by the Supreme Court or the Court of Appeal, by a different panel of Justices.
- Such other order(s) as this Honourable Court (Supreme Court) may deem fit to make in the circumstances.
In making these demands, Ogboru’s lawyers based their arguments on 13 solid grounds principal among which is the fact that the Supreme Court erred in its judgement of 2nd March 2011 when after nullifying the judgement of the Appeal Court it failed to allow Ogboru’s appeal and make a consequential order. Instead, the Supreme Court struck out the Consolidated Appeals. This according to the lawyers is wrong in law.
Ironically, Justice Onnoghen, the chairman of the panel of justices that heard the original appeal, allowed Ogboru’s appeal and rightly made consequential orders in his supporting judgement. Onnoghen stated unequivocally in his judgement that he agreed with the lead judgement which allowed the appeal and which gave a consequential order. The significant implication of Onnoghen’s concurring judgement was that Ogboru’s appeal was allowed and consequential orders were made.
The lawyers are also arguing that Ogboru’s fundamental right to fair hearing was violated by the Supreme Court which failed to consider his appeal on its merit. Curiously, the Supreme Court which upheld Ogboru’s appeal and consequently declared the Appeal Court’s decision a nullity did a volte face by striking out the same appeal upon which the decision to nullify the lower court’s verdict was based.
This, according to the lawyers, amounted to a legal summersault – 100 per cent full swing positive by setting aside the judgment of the Court of Appeal as prayed by Ogboru and 100 per cent full swing negative by striking out Ogboru’s appeal which was the basis of setting aside the judgement of the appeal court. According to the lawyers, this is a legal impossibility. And it is a complete, inexcusable and yet inexplicable violation of Ogboru’s right to have his appeal considered on its merit.
The twin issues here therefore are that of the Supreme Court’s fundamental error of not allowing Ogboru’s appeal after it had correctly nullified the lower court’s verdict and the violation of Ogboru’s right to fair hearing as enshrined in the Nigerian constitution.
Copy of the motion filed at the Supreme Court by Great Ogboru:
IN THE SUPREME COURT OF NIGERIA
HOLDEN IN ABUJA
CONSOLIDATED APPEALS NOS.
SC.18/2012
SC. 18A/2012
BETWEEN:
- CHIEF GREAT OVEDGBE OGBORU
- DEMOCRATIC PEOPLES PARTY (DPP) APPELLANTS/APPLICANTS
AND
- DR. EMMANUEL OWETAN UDUAGHAN
- PEOPLES DEMOCRATIC PARTY (PDP)
- INDEPENDENT NATIONAL ELECTORAL RESPONDENTS
COMMISSION (INEC)
MOTION ON NOTICE
BROUGHT PURSUANT TO SECTIONS 6(1), (2) AND (6)(a) AND (b) AND 36(1) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999, AS AMENDED; SECTION 22 OF THE SUPREME COURT ACT, 2004 AND INHERENT JURISDICTION OF THE SUPREME COURT
TAKE NOTICE that this Honorable Court may be moved on the……..day of ……………….., 2012, at the hour of 9 O’clock in the forenoon or so soon thereafter, as Appellants/Applicants or counsel on their behalf may be heard praying this Honourable Court as follows:
- An order setting aside the judgment of this Honorable Court in Consolidated Appeals Nos. SC.18/2012 and SC.18A/2012: CHIEF GREAT OVEDGBE OGBORU & ANOR. VS. DR. EMMANUEL OWETAN UDUAGHAN & 2 ORS.
- An order directing the said Consolidated Appeals to be determined on their merit, either by the Supreme Court or the Court of Appeal, by a different panel of Justices.
- Such other order(s) as this Honorable Court may deem fit to make in the circumstances.
AND FURTHER TAKE NOTICE that the Grounds upon which this Application is based include the following:
1. On Friday, 20/03/2012, this Honourable Court, as per the lead judgment in the above-named Consolidated Appeals, delivered by Noble Lord I.T. Muhammad, J.S.C., declared the judgment of the Court of Appeal null and void.
2. Instead of allowing Appellants/Applicants’ appeal and making the necessary consequential orders, however, the Supreme Court, per Hon. Justice I.T. Muhammad, struck the said Consolidated Appeals out.
3. Noble Justice W.S.N. Onnoghen, J.S.C., who presided, however in his concurring judgment, allowed the appeal and held that he was abiding “by all the consequential orders made in the said lead judgment including the order as to cost.”
4. This concurring judgment of Hon. Justice W.S.N. Onnoghen, J.S.C., meant that:
(a) The Appellants/Applicants’ consolidated appeals were indeed allowed;
(b) Consequential order(s) were indeed made/supposed to have been made in favour of the success of the Appellants/Applicants’ appeals to the Supreme Court.
5. The absence of such consequential orders on the face of the judgment of this Honorable Court is a fundamental error going to jurisdiction, which negatively affected Appellants’ right to fair hearing.
6. A long line of decided cases will show a settled judicial pattern that when the judgment of a lower Court is declared a nullity, as in this case, the Supreme Court goes ahead to allow the appeal and make necessary consequential orders that will ensure a determination of the matter on its merits.
7. The apparent failure of the Supreme Court to make consequential orders that would lead to the Appellants/Applicants to have their electoral grievances determined on the merit has, with respect, encroached on their fundamental right to fair hearing enshrined in the Constitution of the Federal Republic of Nigeria, 1999, as amended.
8. Once it is established by a party that his fundamental right to fair hearing has been breached, the entire proceedings leading to that breach are a nullity and are liable to be set aside.
9. In Dingyadi vs. I.N.E.C. (2010) All FWLR (Pt. 550) 1204, the Supreme Court set aside its judgment when breach of fair hearing was alleged and proved by the same Appellant/Applicant.
10. Section 285(7) of the Constitution of the Federal Republic of Nigeria, 1999, as amended though creates a time-bar, ought not, with due respect, be interpreted as to infringe on other provisions of the Constitution, especially those guaranteeing right to fair hearing and determination of appeals.
11. This Honorable Court is the last hope of the Appellants/Applicants, who are very eager to have their electoral grievances determined on their merit.
12. The Supreme Court of Nigeria as the conscience of the Nation has settled it that when a party qua counsel discovers a grave error in its judgment going to jurisdiction, such party or counsel should be bold enough to approach the same Supreme Court to overrule itself.
13. Other Grounds as disclosed in the body of the written address in support of this Application; or as disclosed at the oral hearing thereof.
Dated this 4th day of May, 2012.
SEBASTINE T. HON, SAN,
S.T. HON (SAN) & Co.
(Lawshield Partners)
Real Tower Center
No. 26 Ekukinam Street
(By Chisco Terminals)
Utako District, Abuja.
Tel.: 08033395045
(Solicitors to Appellants/
Applicants)
FOR SERVICE:
1. On the Appellants/Applicants
C/o their Solicitors
Address above.
2. On the 1st Respondent
At Delta State Government House
Asaba, Delta State.
3. On the 2nd Respondent
At PDP National Headquarters
Abuja.
4. On the 3rd Respondent
At INEC Headquarters
Plot 436, Zambezi Crescent
Maitama, Abuja.
