The Appeal Court sitting in Benin, yesterday,upheld the judgment of the lower tribunal which declared Governor Emmanuel Uduaghan winner of the January 6, 2011 re-run governorship election in Delta State.

The appellate Court upheld  the cross appeal by Dr. Uduaghan, saying, there was no live issue to contend with by the appellant to arouse the jurisdiction of the tribunal, but Ogboru has said that “the DPP will test the matter at the Supreme Court.”

The Appeal Court held that with the success of the cross appeal filed by the governor, the appeal filed by Chief Ogboru contesting the judgment of the lower tribunal had become an academic exercise and therefore struck it out.

Justice Raphael Agbo who led a five man panel of judges in a unanimous decision described Ogboru’s appeal as an academic exercise in futility.

The Court had ordered for a rerun of the 2007 election on November 8, last year.

Justice Agbo ruled  on grounds that the court cannot order another rerun as such would subject the court to a mere academic exercise in futility.

He said that the tenure of Uduaghan ended on May 29, 2011 upon which an election was conducted by the 3rd respondent (Independent National Electoral Commission, INEC where the duo (Dr. Uduaghan and Chief Great Ogboru) participated, with the 1st respondent declared as the winner of the election.

Agbo however dismissed the appeal of the 2nd respondent, PDP which queries the illegality of Chief Ogboru contesting the April 22, 2011 gubernatorial election in the State, as it was not substantial to the appeal in question.

The court held that the appellant was aware that there was vacancy on the seat by May 29, 2011, hence, he contested, citing “Ibrahim Supra” of the Supreme Court as the issue of rerun petition had been taken over by the other election in which he (appellant) also participated.

According to the Judge, “Do we now order another rerun, is it possible or practical to order a rerun election? The onus lies on the appellant to prove its case. This appeal has become another academic exercise in futility and it is hereby dismissed. The respondent has become extinguished; hence, the case was struck out.

According to him, “at the time the tribunal delivered its judgment on July, 25th, there was no live issue at the re-run election exercise as it has been overtaken by the conduct of April 26th, 2011 governorship election in the state, adding that the tenure of Emmanuel Uduaghan expired on May 29, 2011.

The judgement maintained that the Ibrahim Buba-led Federal High Court sitting in Asaba delivered on July 20, 2011 against the candidacy of Ogboru as the duly nominated candidate of Democratic People’s Party (DPP) in the 2007 governorship election had rendered the tribunal null and void.

It noted that INEC had organised the April 16, 2011 election after which the time of four years of Uduaghan had elapsed on May 29, 2011, saying that the position of the Constitution on the issue was very clear that the winner would not commence a fresh tenure in office.

Reacting to the judgment, Mogbeyi Sagay, counsel to Ogboru said they would study the judgment while Turner Ogboru, younger brother to Great Ogboru, declared that they would appeal against the judgment.

“The crux of the appeal was not the issue of tenure but that there was no election, noting that the issue of tenure can be determined only if it has been established that there was election.  The DPP will test the matter at the Supreme Court.”

Secretary to the Delta State Government, Ovuozorie Macaulay, who lauded the judgment however appealed to all Deltans to cooperate with the government in moving the state forward.

“We want to call even on the opponents that it is enough of this exercise of fighting every day. Delta state belongs to all of us and power belongs to God and when God has ordained somebody, cooperate with that person for tomorrow shall be your turn. But today, God has bestowed power on Uduaghan and his group.

“It behoves on them to join forces with him to develop Delta State if their aim is for service and not for us to litigate from one level to another. So, we are calling on them on behalf of the governor to come on board and join hands with him to develop Delta State”.