By Edith Nwapi
Abuja, a Aug. 7, 2019
The Court of Appeal Abuja division on Wednesday restored the certificate of return issued to Chike Okafor of the All Progressives Congress (APC) by the Independent National Electoral Commission (INEC).
Okafor is a member representing Ehime Mbano/Ihite Uboma/Obowo Federal constituency of Imo in the House of Representatives.
In a unanimous judgment, the appellant court set aside the April 29 order made by Justice Bello Kawu of an FCT High Court Kubuwa.
Kawu had directed INEC to issue a certificate of return to Emeka Nwajiuba as a member representing the federal constituency.
The three-man panel of the appellate court led by Justice Adamu Jauro, equally set aside the May 10, 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.
Jauro accordingly allowed the appeals filed by 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 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 Nwajiuba insisting to hear the appeals on merit.
In the first judgment which was on Okafor’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 one and two.”
Jauro, on the appeal filed by the APC held that ” the appeal is meritorious and is hereby allowed on relief one.
”Consequently, the order of trial court on April 29, is hereby set aside.”
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 law in holding that he was functus officio to set aside his order of April 29 and the entire proceedings in suit No. FCT/HC/CV/423/2018.
Umoh submitted that the decision of April 29, and the entire proceedings in the suit is a nullity 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 Chioma Uzoma who originated the suit knew that he and not Emeka Nwajiuba (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 was against the appellant, who was not a party before the court.
The orders made by the court on April 29 were made without jurisdiction as they were made well outside the 180 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 Nwajiuba, who is now the beneficiary had filed an election petition at the National Assembly Election Tribunal in Owerri challenging the return of the appellant.
The court held that the orders of the lower court were completely at variance with its ruling of April 29.
The same court in its orders of April 29, directed INEC to issue certificate of return to the same Emeka Nwajiuba.
The appellate court held that Nwajiuba suppressed information at the lower court when he refused to inform 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.
The National Legal Adviser of the APC, Mr Babatunde Ogala urged the appellate court to allow the appeal and set aside the judgment of the lower court.
Ogala 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 Feb. 12,which gave birth to the ruling of April 29, 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 Chioma Uzoma, who had filed a suit before the High Court against the APC, Emeka Nwajiuba 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 Nwajiuba’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.
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 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 to 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 Ehime Mbano/Ihite Uboma/Obowo Constituency of Imo state.
While the said application was pending for hearing, Nwajiuba who contested and lost the election and lost to Okafor, approached the FCT High Court on April 29, 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.
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