Dr. Obiora Okonkwo of the Peoples Democratic Party (PDP) has approached the Appeal Court with a request to set aside last Friday's ruling by Justice John Tsoho, which vacated his earlier judgment of December 13, 2017, ordering the Independent National Electoral Commission (INEC) to issue him a certificate of return as the Senator representing Anambra Central Senatorial District of Anambra State.

He also asked the Court of Appeal for an order directing INEC to immediately comply with the consent judgment of Justice Tsoho.

He is also seeking an order of the Court of Appeal setting aside that the ruling that the proceedings in a pre-election suit he filed in December 2014 be adjourned indefinitely pending when the Supreme Court hears and delivers judgment on an appeal by the PDP against a judgment of the Court of Appeal on the Anambra Central election rerun.

While asking for other necessary order that the Court of Appeal would like to make in accordance with Section 15 of the Court of Appeal Act, Okonkwo, through his counsel, Sebastine Hon (SAN), further asked the Court to uphold the pre-eminence of pre-election matters against post-election issues.

The appeal, which was filed at the Court of Appeal in Abuja Monday, pointed out several errors in the ruling of Justice Tsoho which also set aside the consent judgment.

According to the appeal, Justice Tsoho denied Okonkwo his right to fair hearing when he singlehandedly amended the only relief in a Motion on Notice brought by INEC seeking to “vary” his judgment of December 13, 2017.

Okonkwo argued that Justice Tsoho amended INEC’s relief by substituting the word "vary" with "vacate" and further refused him the right to reply as demanded by law. He said the action constituted miscarriage of justice.

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”.

He reminded the Court of Appeal that “it is settled law that before a point will be raised and resolved by a court; parties must be given opportunity of addressing the court thereon, failing which a breach of fair hearing would be occasioned.”

Okonkwo also raised questions with 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.

According to him “it is settled law that parties and the court are bound by the reliefs sought on the face of the motion on notice”, he said, adding that “the sole relief sought by INEC on its Motion on Notice was vague and therefore incompetent in law.”

Okonkwo also told the Court of Appeal that Justice Tsoho missed the point and over-reached himself when he held that he was bound by the Court of Appeal decision that ordered a rerun election in Anambra Central irrespective of Supreme Court decisions on pre-election matters.

Recalling 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.

He said “the original or foundational decision of the Court of Appeal, in appeal No. CA/E/EPT/28/2005, was a post-election decision.”

According to him, “the two other decisions of the Court of Appeal were dependent or parasitic on CA/E/EPT/28/2015; and this much was vigorously argued before the trial court.”

He also told the Court of Appeal that “several decisions of the Supreme Court were recommended to the learned trial judge to show that pre-elections suits have a life of their own and are not dependent on the outcome of post-election suits; but he completely ignored the said decisions.”

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 recognised 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.”

Okonkwo also raised issues with the decision of Justice Tsoho to sit on appeal over a judgment he had entered. He said the trial judge, by virtue of entering a consent judgment, had become functus officio and could not have entertained the motion on notice brought by INEC.

He said the “trial judge erred in law when he held that he was not functus officio on the application brought by the 3rd respondent (INEC) because the consent judgment was not a judgment on the merits, and he proceeded to set aside the said consent judgment.”

Okonkwo said that “a consent judgment is a judgment on the merits and is also a final judgment,” adding that “the law is well settled that once a final judgment is entered, the court becomes functus officio thereto and lacks jurisdiction to set it aside, save on settled grounds, which were lacking in this case.”

He further reminded the Court of Appeal that by Justice Tsoho’s decision, pre-election matters become dependent on the post-election suits and the right to bring pre-election suits as enshrined in Section 87(9) of the Electoral Act, 2010 is extinguished eternally.

This, he contended, invalidates the right of candidates who are unjustly excluded by their political parties from the election despite meeting all the requirements and winning the primary election.

No date has yet been fixed for the matter at the Court of Appeal.

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