From Godwin Tsa, Abuja
The Abuja division of the Federal High Court has fixed November 24 for a definite hearing in a suit by the People’s Democratic Party (PDP) seeking the removal from office of Governor David Umahi of Ebonyi State and his deputy, Dr Eric Kelechi Igwe, on account of their defection to the All Progressives Congress (APC).
But responding to the suit, Governor Umahi and have urged the court to dismiss it for being a defective and gross abuse of the court process.
In an originating summons, the PDP has urged 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 plaintiff’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.
Challenging the competent of the suit through a counter-affidavit filed by their counsel, Chukwuma-Machukwu Ume, SAN, Governor Umahi and his deputy drew the attention of the court to a similar suit marked FHC/ABJ/CS/729/2021, field 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 the instant case.
While praying the court to hold that the present action by the plaintiff 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 at the Abakaliki division of the court.
Still, 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 an abuse of court and the court has a duty to stop such abuse….’
Beyond the issue of abuse of court process, 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 plaintiff’s affidavit raised huge controversies and disputations that requires oral testimonies and cross-examinations to enable the court to decipher the truth.
Citing a plethora of legal authorities including 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.’
On the same issue, the senior lawyer, citing the case law in Aromire and V Aromire and Ors (2019) LPELR-47704 (CA), submitted that the originating process is incurable defective, there being no sign of the Registrar of the court appearing on it, 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.
On this point, Ume, a former Attorney General of Imo state emphasised in his written address, the fact 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 plaintiff 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 General of 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.
‘The Vice President, under the constitution, cannot be removed for joining another political party. Nowhere in the 1999 constitution does it state that the president or vice president should or could be removed if he defected to another political party,’ Justice Onnoghen said.
He submitted that the cases of Amaechi V INEC and Faleke V INEC 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 case of section 221 of the constitution is more pathetic. Courts are now giving it proper interpretation. In fact, t has become clear that the Supreme Court was not properly assisted when all the above decisions were made. 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 sections 221 and 229 of the constitution.
‘It is now an accepted thought in our legal jurisprudence that after Ameachi, as well as Faleke decisions, bedevilled 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.’
More importantly, 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 in an election does not exceed campaigning for the candidate, sponsoring or nominating the candidate and submitting the name of its 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 strengthen his argument with a Supreme Court decision in Aghedo V Adenomo (2018) 13 NWLR (Pt.1636) 264, that ‘no political party by virtue of section 106 (d) of the 1999 constitution can be declared winner of any general election conducted by the Independent National Electoral Commission.’