A Federal High Court in Abuja, Wednesday, reserved ruling for Friday, January 12, on whether to vary its earlier judgment that recognized Obiora Okonkwo as the lawful candidate for the Anambra Central Senatorial District on the platform of Peoples Democratic Party (PDP).
The Independent National Electoral Commission (INEC) approached the court, Wednesday, with an application, asking the court to vary its judgment and allow it (INEC) conduct a re-run election Saturday, January 13, based on the judgment of an Appeal Court, sitting in Abuja which ordered a re-run election into the vacant position.
Justice John Tsoho, the trial Judge announced that he will deliver ruling on the matter after taken submissions of counsel for and against the motion brought by Adegboyega Awomolo SAN, counsel to INEC.
Awomolo informed the court of an application filed on the 21 of December, 2017, requesting the court to vary its consent judgment delivered on 13 December, 2017, wherein Dr Okonkwo was declared the lawful candidate for the contested seat.
Justice Tsoho had in the judgment also directed INEC to immediately issue Okonkwo a certificate of Return.
But moving the motion, Awomolo, who noted that counsel in the matter ought to draw the attention of the court to the three judgments of the court of Appeal, said both the PDP and INEC were part of the processes.
He argued that since the Appeal Court in all the three judgments ordered for a fresh election to be conducted within 90 days from the date of judgment the lower court ought to defer to the upper court’s.
“So it is brought to the notice of the court that there are judgments of the Appeal Court that say election should be conducted within 90 days, the court should defer to the judgment”, he said.
Awomolo in his submission then urged the court to set aside its decision and not discountenanced the decision of a superior court.
He submitted that where a consent judgment is entered in error it is bound to be set aside, adding that the court of law cannot compel illegality or impossibility.
“As of 13 December, 2017, you gave a consent judgement which the Court of Appeal subsist is a binding order. When considered, this presented a situation of impossibility of performance of your judgement. And having regard to heirachy of order of court in Nigeria. It is binding on INEC, PDP to bring this to your notice.
“The law says that the law can’t compel impossibility or illegality. We submit sir, that the court be guided by this”, Awomolo summed.
However, counsel to the judgment creditor and 1st respondent, Sebastine Hon,SAN, urged the court to dismiss the application for lacking in merit and being vague.
He claimed that the applicant’s submission contradicts the key prayer of the application which he said is also vague.
He also added that the absence of the seal of the deponent on the affidavit in support of the motion, rendered it incompetent.
Responding to the issue of court hierachy raised by INEC, Hon SAN, argued that the lower court cannot defer to the upper court since the rule changes when it involves a pre-election matter.
He said the decision of the court was not unlawful in the face of the Appeal Court as the Federal high Court in a judgment delivered by Justice Ahmed Mohammed in the same matter dismissed the Court of Appeal processes as unrelated to the pre-election matter.
He added that INEC was yet to appeal the decision.
He also drew the attention of the court to a notice of appeal filed at the Supreme Court against the judfment of the Court of Appeal by the PDP as well as an application for stay of execution, adding that based on the appeal the judgment of the upper court cannot be binding.
Hon, in urging the court to dismiss the motion for lacking in merit, however said that if the court is inclined to grant the application to vary its judgment it should however order INEC to issue his client with the certificate of Return.
On the issue of heirachy of court, Hon submitted that the supreme Court has said that once a case insistuted immediately after the primaries, such matter is alive and not dead.”It cannot be said to have died even if an appellant court make a pronouncement. So Apoeal Court cannot subsistent the lower court decision in pre-election matters,” he said.
On his part, Austin Umaji, counsel to the PDP and its former National Chairman, Adamu Muazu aligned himself with the submission of Hon, adding that the application was unknown to law, incompetent and should be dismissed.
Similar position was also taken by Ernest Nwoye counsel to sacked Senator representing Anambra central, senator Uche Ekwunife
It would be recalled that the INEC following the judgment of the Abuja division of the Court of Appeal, slated January 13, 2018 for the conduct of a re-run election to fill the vacant senatorial seat at the National Assembly.
However, a new twist was introduced into the matter, following the consent judgment of Justice Tsoho which declared Okonkwo as the lawful candidate for the senatorial district and consequently directed INEC to issue him a certificate of Return.