Governor David Umahi of Ebonyi State and his deputy, Eric Kelechi Igwe, have jointly asked a Federal High Court to dismiss the suit filed by the Peoples Democratic Party (PDP), seeking their removal from office on account of their defection to the All Progressives Congress (APC).
Umahi and Igwe faulted the suit for being defective and constituting a gross abuse of the court process.
In an originating summons marked FHC/ABJ/CS/920/2021, the PDP has asked the court to make a declaration that by defecting from the party on which they were sponsored and elected as governor and deputy governor of Ebonyi state, to the APC, a political party that did not win the election, they have resigned or deemed to have resigned from office.
The crux of the PDP’s case is that the defendants purportedly defected and relinquished their membership of the PDP on which platform they contested and won the governorship election, and by so doing are deemed to have lost the majority votes scored at the election and consequently should be ordered by the court to vacate their respective offices as governor and deputy governor of Ebonyi state.
The suit has the Independent National Electoral Commission (INEC) and the All Progressive Congress (APC) as 1st and 2nd defendants.
But challenging the competent of the suit in a counter affidavit filed by their counsel, Chukwuma-Machukwu Ume (SAN), Umahi and his deputy drew the attention of the court to a similar suit marked FHC/ABJ/CS/729/2021, filed earlier by the PDP and the Ebonyi state chairman of the party , Hon Fred Udeogu against the governor, the All Progressive Congress, the Independent National Electoral Commission and others on the same subject matter, reliefs and annexures attached as in the instant case.
While praying the court to hold that the present action by the PDP is irritating, annoying and constituted a gross abuse of the court process, Ume submitted that his clients had already filed processes in defence of the suit FHC/ABJ/CS/729/2021 at the Abakaliki division of the court.
On the multiplicity of action, he referred the court to the judicial pronouncement of Justice Jummai Sankey of the Court of Appeal who stated thus: “Where two actions are instituted in court, the second one asking for a relief which may however be obtained in the first, the second action is, prima facie vexatious and an abuse of court process.”
He further cited the case of Lagos State V AG Federation and Ors (2014) LPELR-22701 (SC) where the Supreme Court held that “…Multiplicity of actions which involve the same subject matter amount to abuse of court and the court has a duty to stop such abuse….”
Besides, the defendants further challenged the mode of commencement of the suit by way of originating summons instead of a writ of summons, arguing that all the depositions in the PDP’s affidavit raised huge controversies and disputations that require oral testimonies and cross-examinations to enable the court decipher the truth.
He cited a Court of Appeal decision in Kehinde V ACN and others (2012), Ume submitted “the law is trite that contentious matters as in this instant suit are to be brought by way of writ of summons to enable party lead evidence and be cross-examined.
“The plaintiff’s originating summons raised very controversial issues in which the defendants particularly 3rd and 4th defendants are disputing very strongly hence the need to call oral evidence to reconcile the conflict in the affidavit deposition and the documents attached therein.”
The senior lawyer, cited the case law in Aromire and anor V Aromire and Ors (2019) LPELR-47704 (CA), and submitted that the originating process is incurable defective as it has no signature of the Registrar of the court, a condition precedent which affects the competence of the suit as well as the jurisdiction of the court.
In addition, Ume further submitted that his clients who are the current Executive Governor and deputy respectively, are sued in their personal capacities while still in office against the spirit of the constitutional provision of section 308, which clothed them with immunity against civil or criminal proceedings while in office.
Ume, a former Attorney General of Imo state emphasised that, “this section (308), applies to a person holding the office of the President or Vice-President, Governor or Deputy Governor; and the reference in this section to ” period of office” is a reference to the period during which the person holding such office is required to perform way functions of the office.”
He further argued that the reliefs sought by the PDP to remove the 3rd and 4th defendants from office, is an invitation to the court to exercise the powers of the legislative and executive arms of government contrary to the principle of separation of powers spelt out under sections 4, 5 and 6 of the 1999 constitution.
Ume submitted that the 1999 constitution has succinctly provided for the procedure for the election and removal of a sitting governor being the instrumentality of impeachment and not by court action.
Making reference to the Supreme Court decision per Justice Walter Onnoghen, in the case of Attorney Generalof the Federation and Alhaji Atiku Abubakar and 3 Ors, Ume further submitted “the reliefs sought are unconstitutional and there is no such constitutional provision or any other law in Nigeria stating that a sitting Governor or deputy Governor can be removed from office if he defects his party and joined another political party.
He submitted that the cases of Amaechi V INEC and Faleke V INEC which the plaintiff made heavy weather are not applicable to the facts of the instant case, “they are distinguishable in that; the two cases were predicated on the rights of political parties to substitute candidates to an elective office, and the cases were pre-election matters.
“The decisions in Ameachi as well as Faleke were reached because the attention of the Supreme Court was not drawn to the material clause in section 221 and 229 of the constitution.
“It is now an accepted thought in our legal jurisprudence that after Ameachi as well as Faleke decisions bedeviled our electoral democracy, the National Assembly rose to the occasion by arresting the mischief through section 141 of the Electoral Act 2010 (as amended) and section 285 of the 1999 constitution.”
He argued that it is the candidate of a political party that owns the votes and not the party, citing the cases of Ngige V Akunyili (2012) 15 NWLR (Pt. 1323) 343 and INEC V Action Congress (2009) 2 NWLR (Pt.1126) 524.
He submitted that “the participation of a political party in an election does not exceed campaigning for the candidate, sponsoring or nominating the candidate and submitting the name of it’s candidate to the electoral body which accepts and publishes his name along with the names of candidates belonging to other political parties.
“The political party, apart from arranging for and sending polling agents to polling booths on the day of the election, has no further role to play.”
He cited a Supreme Court decision in Aghedo V Adenomo (2018) 13 NWLR (Pt.1636) 264, that “No political party by virtue of the section 106 (d) of the 1999 constitution can be declared winner of any general election conducted by the Independent National Electoral Commission.”
While the Supreme Court in a recent decision in Modibo V Usman (2020) held that ” A person to be declared and returned as a winner of an election by an election tribunal or court must have been a person who had fully participated, as a candidate, in all stages of the election, starting from his nomination, as a candidate to the actual voting.”
He further argued that sections 177 (c), 179 (2), 221 of the constitution and section 83 of the Electoral Act the plaintiff relied upon are not relevant and applicable to his clients current constitutional standing.
While urging the court to throw out the suit, Ume argued that another constitutional way his clients can leave office or be removed is as laid down in sections 180, 188, 189 and 190 of the 1999 constitution (as amended).