Governor David Umahi of Ebonyi State and his deputy, Dr. Eric Kelechi Igwe have jointly asked a Federal High Court to dismiss a suit filed by the Peoples Democratic Party (PDP).
They described it as being defective and constituting a gross abuse of the court process
In the suit, the main opposition party is seeking their removal from office on account of their defection to the All Progressives Congress (APC).
In an originating summons marked FHC/ABJ/CS/920/2021, the PDP has principally 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.
The suit joined the Independent National Electoral Commission (INEC) and the All Progressive Congress (APC) as 1st and 2nd defendants.
But 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 FHC/ABJ/CS/729/2021 at the Abakaliki division 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 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 provides for the procedure for the election and removal of a sitting governor being the instrumentality of impeachment and not by court action.
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 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 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 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 soe 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.
In 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).
