Godwin Tsa, Abuja
The Abuja division of the Court of Appeal has restored the certificate of return issued to Chike Okafor of the All Progressives Congress (APC) by the Independent National Electoral Commission (INEC) as a member representing Ehimembano/Ihiteuboma/Obowo Federal constituency of Imo State at the House of Representatives.
In a unanimous judgment on Wednesday, the appellant court set aside the April 29 order made by Justice Bello Kawau of the Kubwa division of the FCT High court directing the Independent National Electoral Commission (INEC) to issue a certificate of return to Emeka Nwajuba as a member representing the federal constituency.
The three-man panel of the appellate court comprising Justice Adamu Jauro, Stephen Adah and Justice Wilson Akomolafe equally set aside the May 10, 2019 ruling of the trial court that it was functus officio to set aside his order of April 29, 2019 and the entire proceedings in suit No. FCT/HC/CV/423/2018.
Justice Adamu Jauro who delivered the lead judgment accordingly allowed the appeals filed by Chike Okafor and the APC for being meritorious.
Okafor and his political party had in separate appeals challenged the decision of the trial court which had barred the Independent National Electoral Commission, INEC, from accepting or listing the candidate of the APC in the rescheduled National Assembly election.
The Court of Appeal had in an earlier ruling, dismissed the notice of preliminary objection raised against the appeals by Nwajuba insisting to hear the appeals on merit.
Reading the lead judgment yesterday, Justice Jauro had after analylizing the evidence and issues canvassed for and against the appeals in separate judgments, held that the appeals are meritorious and should be allowed.
In the first judgment which was on Chike’s appeal, Justice Jauro held “in the final analysis, I find that the lower court has jurisdiction to have revisited its ruling which bordered on the fundamental rights of the appellant. Consequently, the appeal is meritorious and is hereby allowed only on reliefs 1 and 2.
Justice Jauro who delivered on the appeal filed by the APC held ” the appeal is meritorious and is hereby allowed on relief 1.Consequently, the order of trial court on April 29, 2019 is hereby set aside.”
In the multiple appeals, the appellants are challenging the decision of Justice Bello Kawau of the Bwari division of the FCT High Court which had barred the Independent National Electoral Commission, INEC, from accepting or listing the candidate of the APC in the rescheduled National Assembly election.
Okafor had through his counsel, Solomon Umoh (SAN) urged the Court of Appeal to nullify the decision of the trial court on the grounds that it erred in in law in holding that he was functus officio to set aside his order of April 29, 2019 and the entire proceedings in suit No. FCT/HC/CV/423/2018.
Canvassing arguments in the appeal which is predicated on seven grounds, Umoh submitted that the decision of April 29, 2019 and the entire proceedings in the suit is a nulity as it was made without jurisdiction adding that a court can never be functus officio to set aside or revisit its null orders.
The appellant contended that the refusal to set aside his orders of April 29 as well as the entire proceedings in the suit has occasioned a miscarriage of justice.
Umoh further told the court that he was never made a party to the suit and Mrs. Uzoma Chioma Mary Ann who originated the suit knew that he and not Emeka Nwajuba (3rd respondent) was the candidate of the APC for the Federal constituency seat.
He submitted that the order made by the judge on April 29, 2019 was against the appellant, who was not a party before the court.
The orders made by the court on April 29, 2019 were made without jurisdiction as they were made well outside theb180 days permitted by the 4th alteration to the 1999 constitution for the trial court to conclude pre-election matters.
The orders were made after the election at a time Emeka Nwajuba who is now the beneficiary had filed an election petition at the National Assembly Election Tribunal in Owerri challenging the return of the appellant.
That the orders of the lower court were completely at variance with its ruling of April 29, whereas the court restrained the Independent National Electoral Commission (4th respondent) from recognizing Emeka Nwajuba as a candidate in the 2019 election, the same court in its orders of April of April 29, 2019 directed INEC to issue certificate of return to the same Emeka Nwajuba.
That Nwajuba suppressed information at the lower court when he refused to informed the court that at all material times to the suit, he had ceased to be a member the APC and was the candidate of Accord Party in the election.
On his part, the National Legal Adviser of the APC, Babatunde Ogala urged the appellate court to allow the appeal and set aside the judgment of the lower court.
The legal Adviser also asked the Court of Appeal to hold that the lower court lacked the jurisdiction to determine a pre- election matters outside its geographical area under the provisions of section 257 of the 1999 constitution.
The party submitted that both the decision of February 12, 2019 which gave birth to the ruling of April 29, 2019 were barred by statute having been made outside the mandatory period allowed by law.
The legal action was commenced at the trial court by a House of Representatives aspirant, Mrs. Uzoma Chioma Ann, who had filed a suit before the High Court against the APC, Emeka Nwajuba and the Independent National Electoral Commission.
Among other reliefs, she sought for the nullification of the nomination of Chukwuemeka Nwajiuba, as its candidate for the Okigwe South Federal Constituency for the 2019 elections.
According to her, Nwajiuba’s emergence violated the party’s rules and guidelines.
Justice Kawu in his ruling, cited various authorities and concluded that Nwajiuba’s nomination was “inappropriate, unlawful, null and void for failure to comply with the first defendants guideline for nomination of candidate.”
He also barred INEC “from further recognising, accepting or listing Nwabuja’s (second defendant) name as the candidate of the first defendant in the 2019 ballot paper for Okigwe South House of Representatives election because the first defendant (APC) did not conduct primary for the office.
Ironically, Chika Okafor, who was the nominated candidate of the APC for the Federal seat was not made a party in the suit and denied the opportunity of being heard.
While the suit was pending before the court, Emeka Nwajuba joined the Accord Party where he contested the elections against Chika Okafor of the APC, who won the election and was issued with a certificate of return by INEC.
It was after the issuance of the certificate of return on Okafor that his attention was drawn to the suit pending at the Kubwa division of the FCT High Court.
Having become aware of the suit, Okafor approached the court seeking to set aside the entire proceedings as well as any order emanating there from and for injunctive orders against INEC in respect of Ehimembano/Iiteuboma/Obowo Constituency of Imo state.
While the said application was pending for hearing, Nwajuba who contested and lost the election and lost to Okafor, approached the FCT High Court on April 29, 2019 to compel the INEC to enforce its ruling delivered of February 12 2019.
Consequently, the electoral body in compliance with the said ruling of the FCT High Court issued a certificate of return to Nwajuba of the Accord Party as the elected member of the federal constituency.
Meanwhile, Justice Bello Kawu while ruling on the applications by Okafor date May 13, 2019 for the setting aside of its injunctive orders and the entire proceedings, had on June 10, 2019 refused to grant it on the grounds that he has become functus officio.
Dissatisfied with the decision, the APC and its candidate, Okafor in their separate notices of appeals asked the appellate court to set aside the decision of the lower court and to declare the entire proceedings a nullity.