The fate of the planned rerun election for Anambra Central Senatorial district is in the balance as a Federal High Court in Abuja has fixed January 12 to decide if there is need for the election.
The judgment will be coming barely 24 hours to the scheduled rerun.
The Independent National Electoral Commission (INEC) had approached the court with an application to vary its consent judgment delivered on December 13, 2017 directing the electoral body to issue a certificate of return to Dr. Obiora Okonkwo of the Peoples Democratic Party (PDP) as valid winner of the senatorial election.
Justice John Tsoho had in the said judgment under reference ordered INEC to issue a Certificate of Return to Okonkwo as the winner of the Anambra Central Senatorial seat.
He also ordered the Senate President, Dr. Bukola Saraki, to swear him in as senator to fill vacant seat of Anambra Central.
The pre-election matter which commenced in 2014 was brought by Okonkwo under Section 87 of the Electoral Act.
The said Section 87 of the Act gives candidates, or aspirants, of political parties who were unlawfully denied nomination; right to approach a court with a view to seek redress.
Specifically, during the hearing of the suit, counsel for PDP, its chairman and Chief (Mrs.) Uche Ekwunife, 1st, 2nd and 4th defendants respectively, Messer I.E. Umeji and E.O. Okoli stated their non opposition to the motion for judgment and also adopted the processes that had been filed by the respective defendants to the effect of not contesting the plaintiff’s suit.
Also counsel to INEC (3rd defendant), confirmed that his client did not filed any counter affidavit to the plaintiff’s matter.
He added that INEC, as an impartial umpire is, not inclined into delving into such matters and that as a responsible organisation, INEC is ready to abide by the decision of the court.
Justice Tsoho consequently entered judgment for the plaintiff and granted his reliefs in accordance with the prayers which arise from proceedings related to the said Anambra Central senatorial district election.
INEC is yet to comply with the judgment of the Federal High Court.
Rather, the Commission through its external counsel, Asiwaju Adegboyega Awomolo (SAN) approached the court with an application to vary the said judgment.
He premised the said motion on the grounds that the said consent judgment was delivered after the Court of Appeal had in three judgments delivered on November 20, 2017, ordered the Commission to conduct a rerun election for the disputed senatorial seat within 90 days.
He argued that the INEC counsel who gave his consent to the December 13 judgment of the Federal High Court failed to draw the court’s attention to the three subsisting judgments of the Court of Appeal.
Awomolo argued that if the court’s attention was drawn to the said judgment of the appellate court ordering the conduct of a rerun election, it would not have entered the consent judgment in favour of Okonkwo.
He cited legal authorities to the effect that “where a consent judgment is obtained by fraud or misrepresentation, the court will not hesitate to set it aside.”
However, his application was vehemently opposed to counsel to Okonkwo, the PDP and Mrs. Ekwunife who urged the court to dismissed the INEC application it with “substantial cost”.
Chief Sebastine Hon (SAN), who was with Festus Keyamo (SAN) for Okonkwo, submitted that the application was incompetent, vague and an abuse of the court process.
Hon, who further challenged the validity of the INEC processes, submitted that once there is invalid process before the court, the court must declare it null and void.
He told the court that before the consent judgment was entered, the court was addressed on the efficacy or the implication of the judgments of the Court of Appeal, but counsel to the Commission did not raised any argument but submitted to judgment.
Hon further submitted that based on the Supreme Court authority in Hassan Vs Aliyu (2010), both the Supreme Court and the Court of Appeal are subordinated to the jurisdiction of the Federal High Court in pre-election matters.
He argued that even if a pre-election matter is fought to the Supreme Court, such matters will stil take precedence over post-election matters.
“Therefore, the decision of the Federal High Court is not void or illegal even by the judgment of the Court of Appeal”, he said.
Chief Hon also urged the court to make further consequential orders in favour of his client and also protect the jurisdiction of the court in the matter.
He argued that it was unheard of for a judgment debtor to approach the same court to vary the judgment while refusing to respect court orders as they affect the judgment creditor.
Counsels to the PDP and Mrs. Ekwunife, aligned themselves to the submissions of Hon in urging the court to dismiss INEC’s application for lacking in merit.
In addition, Okoli submitted that the application was tantamount to asking the court, which is now functus officio, to seat on an appeal against its own judgment.
After listening to submissions to counsel to both parties, Justice Tsoho fixed January 12 for judgment.