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, a member representing Ehimembano/Ihiteuboma/Obowo Federal constituency of Imo state 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.
Nwajiuba who was appointed as a Minister by President Muhammadu Buhari two weeks ago initially with Accord Party has returned to APC.
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 INEC from accepting or listing the candidate of the APC in the rescheduled National Assembly election.
The Court of Appeal had, also, in an earlier ruling, dismissed the notice of preliminary objection raised against the appeals by Nwajuba, insisting to hear the appeals on merit. In the first judgment which was on Okafor’s appeal, Justice Jauro held that “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 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. 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.
