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Delta Guber: SC to Rule on Ogboru’s Application to Set Aside Judgment

Nigerian Supreme Court yesterday fixed June 21, 2013 to rule  on whether to set aside its earlier judgment affirming the election of Dr. Emmanuel Uduaghan as winner of the Delta State governorship election held in April 2011.

Justice Tanko Muhammed who presided at the hearing of the application filed by the governorship  candidate of the Democratic Peoples Party (DPP), Chief  Great Ogboru, seeking to set aside the court’s judgment which affirmed  Uduaghan as the winner, fixed the date after all the lawyers had addressed the court.

Ogboru’s lawyer, Dr Dickson Osuala said that the apex court should not have struck out his client’s appeal having found that the judgment of the court of appeal was a nulity.

He asked the court to set aside its decision delivered in March 2012 because, “it amounted to putting something on nothing.” He added.

He said that having declared that the lower court judgment was a nulity, the proper order to make was to hear Ogboru’s  appeal or remit the case back to the lower court for fresh hearing.

However, the court drew his (Osuala’s) attention to the fact that Ogboru’s initial counsel, chief Sebastine Hon,  SAN had earlier filed and withdrawn a similar application and that the new application would amount to an abuse of the process of the court.

Osuala, in reply, told the court that Hon withdrew the application without the authority of his client and under suspicious circumstance.

Justice Tanko  however warned Osuala  not to cast aspersions on Hon and that as a lawyer he had the right to do his client’s case as he deemed fit.

In his response, Chief Wole Olanipekun SAN who appeared with Chief Alex Izinyon SAN for Uduaghan said that Ogboru was bound by Hon’s  withdrawal of his application.

He cited cases to show that a lawyer had the authority to conduct his client’s case and that since Hon was briefed by Ogboru to represent him, Ogboru could not be heard to say that his application was withdrawn without authority.

He said: “A lawyer is not a steward or servant of his client. He does not need the authority of his client to make concession or compromise.”

He urged the court to hold that Hon acted with authority when he withdrew the application.

Chief Olanipekun asked the court to dismiss the application because there must be an end to litigation.

Lawyers for the Peoples Democratic Party and the Independent National Electoral Commission,
Mrs J.O Adesina, SAN and Onyechi Ikpeazu, SAN respectfully agreed with Olanipekun and called on the court to dismiss the case and award cost against Ogboru.

Adesina said that  in so far Hon had the authority to represent Ogboru, whatever decision he took is binding on the appellant.

Adopting the same stance, Ikpeazu said that the applicant proceeded as if there was no proceeding on 15 october 2012, the day that Hon withdrew the application to set aside the judgment,  he ought to have first set aside that which had transpired.

He said: “Without doing that, the concession made by Hon and the order made by my Lords following that withdrawal remained binding on the applicant.”

Replying on point of law, Osuala said that it was not the law that he must first set aside the earlier order striking out the suit.

He argued that since the earlier application was struck out, his client had the right to come back to court.

He also told the court that Ogboru had written to the office of the Chief Justice of Nigeria to protest the withdrawal of the application by Chief Sebastine Hon SAN.

AmarSim Associations Development Consultants

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