Alex Enumah in Abuja
A Peoples Democratic Party (PDP) candidate, Dr. Obiora Okonkwo, on Monday failed in his bid to assume the seat of the Anambra Central Senatorial District at the National Assembly, following the dismissal of his suit at the Court of Appeal sitting in Abuja.
A five-man panel of the Court of Appeal in its judgment delivered dismissed Okonkwoâ€™s appeal for lacking in merit.
The court also 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 of 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 it 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.
Displeased with the decision of the trial court, Okonkwo approached the Court of Appeal to upturn Tsohoâ€™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 to set aside the January 12, 2018, ruling of Justice 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.
But delivering judgment Monday on Okonkwoâ€™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.
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: â€œThe appeal is lacking merit and accordingly dismissedâ€ and affirmed the decision of the lower court which set aside its consent judgment.
The court had earlier dismissed the preliminary objections of the 3rd, 5th and 6th respondents for lacking in merit.
Senator Victor 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 a gross abuse of court process, while INEC has in its notice of preliminary objection, challenged the jurisdiction of the court to entertain the appeal.
The Court of Appeal had â€Žon February 26, granted the application by Senator Umeh and his All Progressives Grand Alliance (APGA) political platform to participate in â€Žthe proceedings.
The court granted the application after it was not opposed to by the counsel to Okonkwo, the PDP, INEC and Mrs. Uche Ekwunife.
Both counsel to the PDP and Senator Ekwunifeâ€Ž, Ifeanyi Umeji and Ernest Nwoye did not file any brief of arguments.
But 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.
â€ŽIkwueto 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.
After listening to legal submissions for and against the appeal, the five-man special panel â€Žof the court headed by Justice M.L. Garba reserved its judgment to a date to be communicated to the counsel to the parties to the appeal.