Special panel begins sitting on Anambra central senatorial seat
The Federal High Court presided over by Justice John Tsoho had in the said judgment delivered on December 13, 2017, ordered the Independent National Electoral Commission (INEC) to issue Okonkwo a certificate of return as senator representing Anambra Central senatorial district.
At the commencement of sitting during which some preliminary issues relating to the appeal, the panel headed by Justice M.L. Garba adjourned to February 26, 2018 for definite hearing.
Other members of the special panel drawn from various divisions of the court to hear the pre-election matter include, Justices Mohammed Danjuma, Tunde Awotoye, Muhammed Shuaibu and F. Eziakpono Oho.
When the appeal was mentioned, the appellant’s legal team, comprising three Senior Advocates of Nigeria (SAN) namely, Sebastine Hon, Festus Keyamo and Kehinde Ogunwumiju; informed the court about the processes already filed before it.
Led by Sebastine Hon (SAN), the appellant counsel informed the appeal panel that the appellant’s brief of argument has been filed, stressing that time was needed 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.
Hon’s application for a short adjournment for the purpose of filing response, was not opposed to by counsel to the respondents, including PDP, Ifeanyi Umeji and Ernest Nwoye for Mrs. Ekwunife, upon which the court granted the application and adjourned the matter to February 26.
In his notice of appeal founded on 13 grounds and filed by Hon, Okonkwo is also praying the Court of Appeal to set aside January 12, 2018, ruling by Justice John Tsoho of the Federal High Court, which vacated the said consent judgment of December 13, 2017.
The appellant also solicited 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.
Furthermore, 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].
Other reliefs sought by the appellant include: “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.
“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.”
The appellant averred that Justice Tsoho denied his right to a fair hearing 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.
“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,” the appellant added.
The appellant reiterated that his suit emanated from a pre-election situation, even as he 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.
“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,” the appellant noted, 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”.
“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,” he declared.
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