A special panel of the Court of Appeal, Wednesday, reserved judgment in the appeal brought by candidate of the Peoples Democratic Party (PDP), Dr. Obiora Okonkwo, seeking an order of the court to set aside a January 12, 2018 ruling of Justice John Tsoho wherein he vacated his own judgment.
He is also seeking a pronouncement of the Appeal Court restoring the December 13, 2017 consent judgment of the Federal High Court which pronounced him the valid senator representing Anambra Central Senatorial District.
He also asked the appellate court for an order compelling Independent National Electoral Commission (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 had on February 26, granted an application by Senator Victor Umeh and All Progressives Grand Alliance (APGA) to be joined in the appeal as respondents.
The court granted the application as it was not opposed to by the appellant and the respondents which include the Peoples Democratic Party (PDP), the Independent National Electoral Commission (INEC) and Mrs. Uche Ekwunife.
Okonkwo, in the said appeal filed by his team of lawyers comprising three Senior Advocates of Nigeria (SAN) -Sabastine Hon; Festus Keyamo and Kehinde Ogunwumiju- specially asked the appellate court to restore the consent judgment of the Federal High Court delivered on December 13, 2017, ordering the Independent National Electoral Commission (INEC) to issue him a certificate of return as senator representing the Senatorial District of Anambra state.
Before the matter could be heard by the special panel of the Appeal Court, Senator Umeh and APGA intervened and asked to be joined as 5th and 6th respondents in the appeal.
Arguing their position before the court Wednesday, Umeh and APGA asked the court to dismiss the appeal for “lacking in merit and a gross abuse of court process”.
On its part, INEC, which consented to the judgment on December 13, 2017, brought a notice of preliminary objection in which it challenged jurisdiction of the Appeal Court to entertain the appeal.
When the matter came up for hearing, counsel to parties in the appeal adopted their written submissions after canvassing arguments for and against the appeal.
In his submission, Hon (SAN) urged the court to allow the appeal and dismiss the objections raised by INEC, Umeh and APGA.
He argued that both the 3rd, 5th and 6th have not validly responded to important issues contained in ground one of the appeal. He said the respondents were cleverly avoiding to answer the question on which, between a pre-electin matter and post-election matter, was superior.
He relied on the Supreme Court authority of Hassan v Halilu and urged the court to hold that a pre-election matter has a life of its own which cannot be extinguished by post-election matter.
The appellant lawyer further submitted that the Court of Appeal cannot be bound by its earlier decision if the law has changed.
On this, he relied on the case law in Sani V Unity Bank (2017) to submit that the Court of Appeal can no longer be bound by the decision of the Enugu division of the court, which had nullified the election, since the law has changed in Hassan v Halilu.
Hon further submitted that anybody seeking to challenge a consent judgment cannot come by way of motion, but by a fresh action.
But counsel to INEC, Eyitayo Fadipo in urging the court to dismiss the appeal, challenged the jurisdiction of the court to hear the appeal.
Both counsel to the People’s Democratic Party and Senator Uche Ekwunife, Ifeanyi Umeji and Ernest Nwoye did not file any brief of arguments.
Counsel to Senator Umeh and APGA, Patrick Ikwueto (SAN), 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.
He further argued that the legal authority in Hassan v Halilu cited by counsel to the appellant was rather in favour of his clients.
After listening to legal submissions for and against the appeal, the five-man special of the court headed by Justice Mohammed L. Garba reserved judgment to a date to be communicated to counsel to the parties.
In essence, Okonkwo is seeking an order of the Court of Appeal to the effect that the consent judgment entered into by Justice Tsoho on December 13, 2017 in suit No; FHC/ABJ/CS/1092/2014, ranks superior to any post-election decision, notwithstanding the hierarchy of court established by section 287 and other relevant provisions of the 1999 constitution (as amended).
He further prayed for an order that in spite of the hierarchy of the courts established by section 287 and other relevant provisions of the 1999 constitution [as amended],a pre-election suit and decisions ranks/superior to a post-election decision notwithstanding that the court delivering the pre-election decision is inferior to the court delivering or which has delivered the post-election decision.
Other members of the special panel who are drawn from the various divisions of the court to hear the pre-election matter also include Justices M.A. Danjuma; T.O. Awotoye; M.L. Shuaibu and F.O. Oho.