From Godwin Tsa, Abuja
Governor David Umahi of Ebonyi State and his deputy, Dr Eric Igwe have approached the Abuja division of the Court of Appeal for the interpretation of some constitutional issues arising from the suit filed by the Peoples Democratic Party (PDP) challenging their defection to the All Progressives Congress (APC).
The applicants in their motion, have requested the appellate court to restore the powers of state High courts as the only courts vested with the exclusive jurisdiction to hear and determine the question as to whether the term of office of a member of the House of Assembly of a State, a Governor or Deputy Governor has ceased or become vacant.
Counsel to the applicants and a former Attorney General of Imo State, Chief Chukwuma Machukwu Ume (SAN), has consequently filed a motion seeking the declaration by the court that section 272 (3) of the 1999 Constitution, which vested such powers on the Federal High Court as a Scrivener’s error.
The motion which was brought pursuant to sections 295 (2); 272(3); 6(2) of the 1999 constitution and section 20 and 29 of the Interpretation Act, has requested the order of the Federal High Court for an order referring some constitutional questions to the Court of Appeal for its opinion.
The affected constitutional provisions are sections 2; 4(6); 5 (2); 6 (1) & (2); 6(5) (a) -(e); 186; Chapter VII; Chapter VII Part II; sections 270 (1) and 272 (1); (2) and(3).
The applicants request the opinion of the Court of Appeal as to “Whether by the community reading of the above provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) more particularly by the express provisions in sections 232(1) 239(1) (a) – (c) and 251(4) each vesting Original Jurisdiction on the Supreme Court, the Court of Appeal and the Federal High Court on matters on the Exclusive Legislative List and Federal political office holders, the phrase Federal High Court as found in Section 272 (3) (aka section 28, Act No 1 of 2010) is not a mere or should not be read Scrivener’s Error or Devil’s printer?
“Whether the Hon Court should not order the phrase Federal High Court as found in Section 272 (3) (aka section 28, Act No 1 of 2010) to be read and understood as State High Court which rightly conforms with the spirit of the Federal system of Government as enshrined in the Constitution of the Federal Republic of Nigeria, 1999, (as amended) vesting exclusive original jurisdiction on the High Court of the States of the Federation to “hear and determine the question as to whether the term of office of a member of the House of Assembly of a State, a Governor of Deputy Governor has ceased or become vacant?
Before the trial court, the applicants had filed a notice of preliminary objection challenging the suit by the PDP, wherein, they argued vehemently that Section 308 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended has provided immunity to them from the Plaintiff’s Suit and that votes cast during the said Elections are by the Electoral Act, 2010 (as amended) an recent Supreme Court pronouncements belong to them and recent Supreme Court pronouncment belongs to them and not the Plaintiff/Respondent.
Furthermore, they contested that being Ebonyi State Governor and Deputy Governor sworn into Offices by the Chief Judge of Ebonyi State they cannot be liable to be removed from their Offices by a Federal High Court.
In addition, on November 23, 2021 they filed an interlocutory motion praying the Court that:
“Considering the Federal System of Government adopted and inherent in the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and that 3rd & 4th Defendants/Applicants have been sworn into office by the Chief Judge of Ebonyi State as constitutionally provided,
That the benefit of a holistic reading of the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) the phrase Federal High Court as found in Section 272 (3) (aka section 28, Act No 1 of 2010) is a mere and should taken as Scrivener’s Error.
The Applicants therefore prayed the Court to by virtue of Sections 20 & 29 of the Interpretation Act etc, purposively interpret and read the phrase Federal High Court as found in Section 272 (3) (aka section 28, Act No 1 of 2010) as State High Court.
Consequently, they prayed the Court to transfer the Suit filed by Plaintiff/1st Respondent to the High Court of Ebonyi State for hearing and determination.
However, on December 23, 2021 Plaintiff/1st Respondent (PDP) fired back by filing a Counter Affidavit with Written Address wherein it placed an entirely different interpretation and meaning to the S. 272 (3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
The plaintiff vehemently submitted that the Federal High Court is stated in the S. 272(3) is in order and this Court have the jurisdiction to hear and determine its Suit.
Ume submitted that “our exhaustive research have shown that all through the history of the judicial adjudication in Nigeria, courts more particularly the Supreme Court of Nigeria have never been called upon and no Court has suo moto heard and determined if the Federal High Court as provided in S. 272 (3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is a Scrivener’s Error and so should be read as State High Court.
The PDP had on August 17, 202, filed its Originating Summons claiming among others that:
It sponsored Governor Umahi and his deputy, Dr. Igwe for the 2019 Governorship and Deputy Governorship Elections and they won the Elections and were sworn into the Offices of Governor and Deputy Governor of Ebonyi State respectively on May 29, 2019.
It further alleged that the votes cast for the candidates ( Umahi & Igwe) at the said Elections are its property.
It then alleged that the governor and his deputy defected to the APC (2nd Defendant).
On the basis of the above claims, the PDP prayed the Court to remove the governor and his deputy from their Offices as Governor and Deputy Governor of Ebonyi and declare their Offices vacant.