Godwin Tsa, Abuja
The legal tussle over the soul of Anambra state senatorial district came to an end Monday at the Abuja division of the Court of Appeal, where Peoples Democratic Party (PDP) candidate Dr Obiora Okonkwo failed in his bid to assume the seat.
A special panel of the appellate court justices in a unanimous judgment dismissed his appeal for lacking in merit.
The Court affirmed the judgment of Justice John Tsoho of the Federal High Court, Abuja which set aside its own consent judgment delivered on December 13, 2017.
Justice Tsoho had in the consent judgment ordered the Independent National Electoral Commission (INEC) to issue a Certificate of Return to Obiora Okonkwo as the legitimate candidate for the Anambra Central senatorial seat.
However, the Court on January 12, 2018, in a judgment on a motion by INEC, set aside the consent judgment in which he ordered INEC to issue Okonkwo with a Certificate of Return. In setting aside the judgment, Tsoho held that he was misled by the plaintiff.
Tsoho, accordingly aligned himself with the judgment of three Courts of Appeal which ordered INEC to conduct a fresh election within 90 days to fill the vacant senatorial seat.
Not satisfied with the decision of the trial court, Okonkwo approached the Court of Appeal to upturn Tsoho’s decision and ordered INEC to swear him in as the representative of the senatorial district.
In the notice of appeal, which was rooted on 13 grounds, Okonkwo had prayed the Court of Appeal to set aside the January 12, 2018 ruling of Justice John Tsoho of the Federal High Court which vacated the said consent judgment of December 13, 2017.
He also asked the appellate court for an order directing INEC to immediately comply with the consent judgment of Justice Tsoho delivered on December 13, 2017 by issuing him with a Certificate of Return as the winner of the disputed senatorial seat.
The Court of Appeal had, on February 26, granted the application by Senator Victor Umeh and his All Progressives Grand Alliance (APGA) political platform to participate in the proceedings.
The Court granted the application after it was not opposed to by counsel to Okonkwo, the PDP, INEC and Mrs Uche Ekwunife.
Both counsel to the People’s Democratic Party and Senator Uche Ekwunife, Ifeanyi Umeji and Ernest Nwoye did not file any brief of arguments.
But counsel to Senator Umeh and APGA, Patrick Ikwueto, urged the Court to dismiss the appeal for lacking in merit and allow his preliminary objection filed on March 5.
Ikwueto argued that a consent judgment can be set aside if it turns out that it was made by a court without jurisdiction or it was obtained by fraud.
While moving the appeal, Okonkwo through his legal team anchored by Sabastine Hon, as well as counsel for INEC, the PDP and Mrs Uche Ekwunife, all urged the Court to allow the appeal.
After listening to legal submissions for and against the appeal, the five-man special panel of the Court, headed by Justice M.L. Garba, reserved its judgment to a date to be communicated to counsel to parties to the appeal.
But delivering judgment Monday on Okonkwo’s appeal, the appellate court held that the trial court was in order by setting aside the consent judgment it delivered on December, 13, 2017.
In the lead judgment delivered by Justice Frederick Oho, the Court of Appeal held that the lower court was in order in setting aside the judgment because the judgment was a nullity.
He said the Court has the inherent powers to set the records straight by setting aside the consent judgment once it is discovered that there are a lot of infractions leading to the judgment.
The Court, while noting that a court cannot sit as an appeal on its own case, however held that if it was discovered that the judgment was obtained by fraud, or that the court was misled, as in this case, the court would be right to set aside the judgment.
The Court further described the events surrounding the consent judgment of the Federal High Court as sacrilegious.
Oho stated that the appellant, who is the candidate of the PDP, is not oblivious of the decisions of the Court of Appeal which ordered that a fresh election be conducted within 90 days with the exclusion of the PDP and its candidate.
He described the attitude of the appellant as a clear disobedience to the orders of the Court of Appeal, adding that his counsel was duty bound to have furnished the Court with all relevant facts in the case, including the three judgments by the Court of Appeal.
The Court also held that, whether the matter is a pre-election or post election matter, the lower court must always give way to the appellate court on the same issue.
The Court, accordingly, held that “The appeal is lacking merit and, accordingly, dismissed” and affirmed the decision of the lower court which set aside its consent judgment.
The court earlier dismissed the preliminary objections of the 3rd, 5th and 6th respondent for lacking in merit.
Senator Umeh and his political party, who were joined as 5th and 6th respondents in the appeal, had asked the Court to dismiss the appeal for lacking in merit and as a gross abuse of court process, while INEC had, in its notice of preliminary objection, challenged the jurisdiction of the Court to entertain the appeal.