Dear Sir: We are counsel to the Democratic Peoples’ Party and upon their instructions write to you in connection with the aforesaid matter.
Our client read with surprise a news item contained in the VANGUARD Newspaper of December 9th 2010 page 10 left hand column in which it was stated that
Dear Sir: We are counsel to the Democratic Peoples’ Party and upon their instructions write to you in connection with the aforesaid matter.
Our client read with surprise a news item contained in the VANGUARD Newspaper of December 9th 2010 page 10 left hand column in which it was stated that
“…..Omo-Agege was nominated to replace the late Mr. Felix Azorbo who flew the RPN flag during the 2007 gubernatorial election that was recently annulled by the Court of Appeal. His nomination by the party clears the signs of uncertainty that had clouded his gubernatorial hopes following the unexpected dismissal of Dr. Uduaghan from office.
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Omo-Agege emerged as the party candidate after defeating one Mr. Godwin Okene in the primary election conducted by the party under the supervision of officials of the Independent National Electoral Commission, INEC, on Tuesday.
Vanguard reliably gathered that he has also been cleared by INEC and his clearance was sequel to a written notice by the party to the leadership of INEC intimating the electoral body of the demise of their governorship candidate in the 2007 governorship election, Mr. Azorbo who died on April 13 2008 at the age of 57.
It was also learnt that the death notice of the deceased governorship candidate, Mr.Felix Ogbogbo Azorbo was accompanied by a certificate of death issued by the National Population Commission, NPC.” [Emphasis Supplied]
Firstly, we need to emphasize that the power of INEC to conduct the gubernatorial election in Delta State flows directly and solely from the decision/order of the Court of Appeal in Suit No: CA/B/EPT/38/2010, CHIEF GREAT OVEDJE OGBORU & ANOR V DR. EMMANUEL EWETAN UDUAGHAN & ORS delivered on the 9th of November 2010.
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That order only directed and empowered INEC to conduct the 14th April 2007 gubernatorial election, which it found was not conducted at all, within 90 days of the making of the order by that Court. It did not direct, empower or authorize INEC to supervise party primaries for the replacement of any candidate for any of the parties!
In LABOUR PARTY V INEC [2009] 6 NWLR (PT 1137) 315 one of the issues that fell for decision in the case was
“Whether the learned Justices of the Court of Appeal were right in holding that whenever there is a nullification of a general election and a fresh election is ordered to be held, only the candidates who contested in the nullified election can contest the fresh election.” [emphasis supplied]
In answering the aforesaid question in the affirmative the Supreme Court of Nigeria per OGBUAGU JSC at 339 declared
“I have held that a “re-run is the same thing as a “Fresh election” or “re-start”…..Since the said election, was void, commonsensically and in fact and in law, it is the same candidates that will “run” in the aborted/nullified election that must go back to run in the fresh election ordered by the trial tribunal which was affirmed by the Court of Appeal.
Perhaps, if I may, the appellant, on its admission that the court below, admirably, rightly and correctly answered the 1st question- i.e. that the appellant, is entitled to submit or nominate and sponsor a candidate or candidates, I respectfully hold that the appellant cannot in the circumstance, exercise that right in an election that was/is nullified and a fresh election ordered. This is because, as rightly and correctly contained in the said order, the date and period for calling for nominations, has elapsed. Period”
In his concurring judgment ADEREMI JSC at 347
“When a court makes a pronouncement that a thing that took place is null and void, the simple and only reasonable interpretation of such a pronouncement is that the thing never occurred or took place. The court, is by implication, ordering that the whole exercise must start afresh with the same dramatis personae participating…………An order of the court commanding a re-run connotes nothing other than that the candidate so unlawfully excluded together with those who took part in the election that was voided should start again- they should have a re-run of the election and that is the general election. To have construed the order otherwise would foist grave injustice on the parties.”
Secondly from the judgment of the Supreme Court in LABOUR PARTY V INEC what is clear is that the 14th April 2007 gubernatorial election in Delta state has not taken place and it is that election that INEC is to conduct with the same dramatis personae! This means that it is the factual realities as existing on the 14th April 2007 that INEC is to take cognizance of and act upon.
The inescapable conclusion is that OVIE OMO-AGEGE, a PDP member in 2007 and who contested the PDP gubernatorial primaries which produced UDUAGHAN as the gubernatorial candidate of the PDP cannot fly and must be disallowed from flying the Flag of the RPN.
If not disallowed it would in the eye of the law mean that PDP is fielding two gubernatorial candidates for the re-run election! Additionally it means OVIE OMO-AGEGE is being allowed to be the RPN candidate when he is a member of the PDP!
At the risk of monotony, in the eyes of the law, the election to be conducted by INEC is the 14th April 2007 Delta state gubernatorial election.
OVIE OMO-AGEGE could not have flown the flag of the RPN on the 14th of April 2007 for the simple reason that he was not a member of the RPN but of the PDP. There is nothing in the judgment of the Court of Appeal or in the provisions of the Electoral Act 2006, which allows him to fly the flag of the RPN at all!
Thirdly assuming Mr. Felix Azorbo is deceased, which is not conceded, in accordance with the provisions of section 187(1) of the 1999 Constitution he must have a deputy gubernatorial candidate flying jointly with him the ticket of the RPN. Section 187 (1) of the Constitution for ease of reference provides as follows
“In any election to which the foregoing provisions of this Part of this Chapter relate, a candidate for the office of Governor of a State shall not be deemed to have been validly nominated for such office unless he nominates another candidate as his associate for his running for the office of Governor, who is to occupy the office of Deputy Governor; and that candidate shall be deemed to have been duly elected to the office of Deputy Governor if the candidate who nominated him is duly elected as Governor in accordance with the said provisions.” [Emphasis and underlining supplied]
By this provision RPN presented or must have presented a deputy gubernatorial candidate to run with Mr. Azorbo and by the ordinary common sense meaning of a deputy, it is that person on the purported death of Mr. Azorbo that becomes the gubernatorial candidate of the RPN!
The BLACKS LAW DICTIONARY NINTH EDITION page 807 defines “deputy” as
“A person appointed or delegated to act as a substitute for another, esp. for an official…”
Dr. Azorbo, if he is indeed dead, already has a substitute in the event of his death. That substitute is his running mate and not OVIE OMO-AGEGE.
The Constitution in section 181(1) has also laid down the example by directing a deputy governor-elect to be sworn as the governor if the governor-elect dies before taking the oath of office.
Whichever way it is looked at the purported clearance given to Mr Ovie Omo-Agege by INEC to run as the RPN gubernatorial candidate is with respect ill advised, illegal, null and should promptly be REVERSED by the commission!
Yours Faithfully
ROBERT EMUKPOERUO ESQ
10th December 2010
TO: THE CHAIRMAN
INDEPENDENT NATIONAL ELECTORAL COMMISSION
ZAMBEZI CRESCENT, MAITAMA ABUJA
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