INEC said its decision to hold the election on Saturday was based on three subsisting judgments of the Court of Appeal.
According to the electoral body, the appellate court had in three separate verdicts in suit number CA/EPT/28/2015, delivered on December 7, 2015, CA/A/160/2016 and CA/A/165/2016, both delivered on November 20, 2017, directed it to within 90 days, conduct a re-run poll for the Senatorial district.
Consequently, INEC, through its lead counsel, Chief Adegboyega Awomolo, SAN, asked the high court to vary its December 13, 2017, judgement that recognized Dr. Okonkwo as the validly elected representative for Anambra Central Senatorial District.
It will be recalled that the high court had in the judgment that was delivered by Justice John Tsoho, also ordered the Senate President, Dr. Bukola Saraki, to immediately swear-in Okonkwo to occupy the Senatorial seat which has been vacant since 2015.
The verdict followed a suit marked FHC/Abj/CS/1092/14, which Okonkwo filed against the PDP, its former National Chairman, Alhaji Adamu Muazu, INEC and Mrs. Uche Ekwunife.
The plaintiff had in the suit he filed in 2014, told the court that he contested and won the primary election PDP conducted for the district held on December 7, 2014, at Ekwueme Square in Awka by scoring the highest number of votes cast at the said primary.
He said the primary was conducted by the National Executive Committee of the party.
However, the plaintiff told the court that Chairman of the Electoral Panel that was sent to Anambra state to conduct the exercise, refused to sign and forward the Result Sheet of the primary poll and insisted that Abuja had directed them on whom they should return whether the Plaintiff scored the highest number of votes or not.
Dissatisfied with action of the party, the plaintiff filed the suit wherein he sought an interpretation of section 87 of the Electoral Act, 2010, by the court, even as he alleged breach of provisions of 2014 PDP Guidelines for primary election.
The Plaintiff said he was aware that the Court of Appeal in Enugu had in an election petition No CA/EPT/28/2015, held that Ekwunife did not win the said primary election and was not qualified to contest the National Assembly Election.
He insisted that what the appellate court decided in the petition that was filed by Chief Victor Umeh of the All Progressives Grand Alliance, APGA, against the PDP, was what he equally went to court to challenge, to the effect that he was the validly nominated candidate of the PDP that scored highest number of votes at the primary and not Ekwunife.
Meantime, after about three years into hearing of Okonkwo suit, all the defendants including Ekwunife, withdrew their objections to the suit, saying they would abide by the decision of the court.
Consequently, Justice Tsoho agreed with counsel to the plaintiff, Chief Sebastine Hon, SAN, that in view of the withdrawal of counter-affidavits by all defendants, he said the court was at liberty under the law to enter judgment in Okonkwo’s favour.
Justice Tsoho therefore granted relief three and sub-paragraph (i-iv) of the plaintiff’s amended originating summons dated June 20, 2017.
However, INEC, on Wednesday, maintained that the high court gave the consent judgement that recoginized Okonkwo in error.
It argued that the high court lacked the powers to order the issuance of Certificate of Return to Okonkwo, when the appellate court which is higher in hierarchy, had earlier made definite orders that fresh election should be conducted for the Senatorial district within 90 days.
INEC noted that both Okonkwo and the PDP were parties to all the cases at the appellate court.
“My lord, as at December 13, 2017 when this court gave the consent judgement, the mandatory orders of the Court of Appeal were subsisting and binding on both INEC and the PDP.
“When the judgement of your lordship is considered in view of the binding decisions of the Court of Appeal, it presented a situation of impossibility of performance of your lordship’s judgement. This is having regards to the hierarchy of courts in Nigeria.
“The law is trite that the court cannot compel illegality or impossibility”, Awomolo argued, adding that were consent judgement is entered in error, it is bound to be set-aside.
However, Okonkwo’s lawyer, Mr. Hon, SAN, urged the court to dismiss INEC’s application with substantial cost, insisting that the application was incompetent in law.
Hon stressed that the case of his client bordered on pre-election dispute.
Similarly, counsel to the PDP and that of Ekwunife aligned themselves with Hon’s position.
PDP argued that the high court, having heard Okonkwo’s case and delivered its verdict, it has become functus-officio in the matter and cannot sit on appeal to vary its own orders as it was prayed to do by INEC.
After he had listened to all the parties, Justice Tsoho reserved his ruling on the matter till Friday.
Earlier before the case was adjourned, Okonkwo’s lawyer drew attention of the court to the fact that INEC had perfected plans to conduct the election on Saturday.
He begged the court to make an interim order of injunction stopping the election in any event that the ruling would not be ready before the proposed date for the planned re-run poll.
The Anambra Central Senatorial seat has remained vacant since Ekwunife’s election was nullified.
The Anambra State Election Petition Tribunal and the Court of Appeal sitting in Awka had in their concurrent judgments nullified the election that produced Ekwunife as Senator for the district in 2015, on the premise that she was not validly nominated.
Both the tribunal and the appellate court directed INEC to conduct fresh re-run election in the district.
Dissatisfied with the verdicts, Ekwunife who was formerly a member of APGA before she defected to the Peoples Democratic Party, PDP, took the case to the Supreme Court for redress.
Ekwunife had since defected to the All Progressive Congress, APC.