By Alex Enumah
A five-man special panel constituted by the President of the Court of Appeal, Justice Zainab Bulkachuwa, yesterday fixed February 26 for definite hearing of the appeal filed by the candidate of the Peoples Democratic Party (PDP), Dr. Obiora Okonkwo, seeking 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 Anambra Central senatorial district.
The panel, headed by Justice M. L. Garba, announced the date yesterday shortly after it commenced sitting on the matter.
Members of the special panel who are drawn from the various divisions of the court to hear the pre-election matter also include Justices Mohammed Danjuma; Tunde Awotoye; Mohammed Shuaibu and Eziakpono Oho.
When the appeal came up for mention Tuesday, Sabastine Hon (SAN), counsel to the appellant informed the court about the processes already filed before it.
Hon said though he has filed the appellant’s brief of argument, he however, needed time to respond to the processes filed by counsel to the Independent National Electoral Commission (INEC), Chief Awomolo Adegboyega (SAN), including a notice of preliminary objections.
He consequently asked the court for a short adjournment for the purpose of filling his response.
His application was not opposed to by counsel to the respondents including the Peoples Democratic Party (PDP), Ifeanyi Umeji and Ernest Nwoye for Mrs. Ekwunife.
The court consequently granted the application and adjourned the matter to February 26.
In the notice of appeal predicated on 13 grounds Okonkwo through his lawyer, 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.
In addition, the appellant 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, 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.
The appellant also asked for an order setting aside the order of Justice Tsoho that proceedings in suit No: FHC/ABJ/CS/1092/2014 be adjourned sine die pending the determination of the two appeals filed by the PDP before the Supreme Court.
Specifically, the appellant said his right to a fair hearing was denied by Justice Tsoho when he single-handedly amended the only relief in a Motion on Notice brought by INEC seeking to “vary” his judgment of December 13, 2017.
He maintained that “the learned trial judge suo motu, held that the word “vary” means “vacate”, without giving the parties, especially the appellant an opportunity to address him on that”.
Okonkwo also raised questions about Justice Tsoho’s decision to hold that INEC’s sole relief was not vague on the ground that other contents of the motion on notice saved it.
He argued that by adding the word ‘vacate’ to the motion on notice by INEC, Justice Tsoho went out of his way to decide on what was not asked for by INEC.
Reminding that his suit emanated from a pre-election situation, Okonkwo also reminded the court that all matters relating to the Court of Appeal which Justice Tsoho relied upon in delivering his ruling, were all from post-election litigations.
The appellant also informed the Court of appeal that Justice Tsoho was wrong to have held that a consent judgment is not a judgment on the merits and could be set aside through a motion on notice adding that “a consent judgment is recognized under section 241(2)(c) of the of the constitution of the Federal Republic of Nigeria, 1999 as amended as a final judgment against which an appeal could only be lodged with leave”.
He said that “it is settled law that the only means by which a consent judgment could be set aside by a trial court is by way of a fresh action and not by a mere motion on notice.”