…says High court erred in law and misdirected itself
Ebonyi Governor, David Umahi and his deputy, Kelechi Igwe, have appealed the High Court ruling, which ordered for their sack from office.
The duo according to the notice of appeal in suit no: FHC/ABJ/CS/920/2021 filed at the Abuja Judicial Division of the Appellate Court, disagreed with entire judgement of the lower court which ordered their sack for defecting to the All Progressive Congress (APC) from the People’s Democratic Party(PDP).
They listed eight grounds of appeal against the lower court’s judgment.
Messrs Umahi and Igwe in ground one argued that the lower court erred in law and misdirected itself when it held that “I have not seen any authority which propounds that where a Governor or deputy Governor defects his political party on which platform he was elected into office, he cannot be sued by that political party to reclaim its mandate…Section 308 of the 1999 Constitution did not envisage such a situation.”
They argued that Hon trial court was virtually setting aside the Supreme court of Nigeria’s decision in AG Federation v. Atiku Abubakar & 3 ORS (2007) LCN/3799(SC)to the effect that there is no constitutional provisions prohibiting President or vice and invariably the Governor and or deputy Governor from defecting to another Political Party.
“The provisions of section 308 are specific Notwithstanding anything to the contrary in this Constitution, but subject to subsection (2) of this section, no civil or criminal proceedings shall be instituted or continued against 3rd and 4th Appellants during their mandate in office as Governor and Deputy Governor respectively.”
“There is no provision of the 1999 Constitution (as amended) that provides for the removal of 3rd and 4th Appellants as sitting Governor and Deputy Governor respectively of Ebonyi State for reason of defection”, they argued.
The appellants also averred that the trial court erred in law and misdirected itself when it relied on Sections 68 and 109 of the Constitution of the Federal Republic of Nigeria 1999(as amended) in holding that the Appellants having defected from the PDP to the APC offended the provisions of the Constitution and must vacate their offices as Governor and Deputy Governor respectively.
While section 68 deals with grounds for vacation of seats by National Assembly lawmakers (Senate and House of Representatives), section 109 lists grounds for vacation of seats of State Lawmakers.
The appellants thus argued that ‘there is no specific mention of Governor and deputy Governor in the provisions of section 68 and 109 respectively of the 1999 Constitution (as amended).
“By relying on sections 68 and 109 of the Constitution, the Hon. trial court assumed the role of the legislator and arrogated to itself the powers of amendment of the Constitution.”
They further submitted that there is no provision in the 1999 Constitution (as amended) which states that Governor or deputy Governor will vacate his office if he defects from his political party to another political party.
The appellants in ground 3 argued that the lower court erred in law and overruled the decision of the Supreme Court of Nigeria when it held that ownership of votes cast during the Governorship Election of 2019 belongs to the 1st Respondent and not the 2nd.
“The Hon trial court relied on AMAECHI v. INEC and FALEKE v. INEC when same are no longer the law on the ownership of votes cast in an election.
Ngige v. Akunyile (2012) 15 NWLR Pt.1323-343 (CA) the court held: “the above provisions show that a political party canvasses for votes on behalf of the candidate. In other words a political party is nothing more than agent of the candidate in gathering votes to an election.”
“In INEC vs. Action Congress (2009) 2 NWLR Pt. 1126 – 524 (CA) the Court held: “…the participation of a political party does not exceed campaigning for the candidate….”, they argued.
On ground four, the appellants avvered that the lower court erred in law when it held that the Appellants are deemed to have been resigned from their Offices as Governor and Deputy Governor of Ebonyi State upon their defection to another party.
They argued that section 180(1)( c) of the Constitution of the Federal Republic of Nigeria 1999( as amended) never contemplated, implied resignation but resignation signed by the Appellants and tendered to the Speaker of the House of Assembly of Ebonyi State.
“The trial court had no evidence before it of Appellants’ resigning from their Offices”, they further submitted.
The governor and his deputy further argued that the lower court erred when it ruled that the duo are nit covered by the immunity clause in the matter.
“the Hon trial court erred in law when it held that the provision of the Public Officers Protection Act cannot avail the Appellants.”
They argued that there is no constitutional breach committed by the Appellants as to deny the Appellants of the provisions of the Public Officers Protection Act.
“The reliefs sought by the 1st Respondent are grounded on decisions taken by the Appellants while in their respective Offices as Governor and Deputy Governor of Ebonyi State”, the argued.
The appellants further submitted that the Hon trial court erred in law when it restrained the Appellants from carrying on the duties in their offices as Governor and Deputy Governor of Ebonyi State on the basis that the Appellants offended the provisions of sections 177(c) and 221 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
They argued that “Section 221 of the Constitution is not to the effect that votes cast during the Governorship election of March 9, 2019 belonged to the 1st Respondent but rather to the Appellants.”
“Section 177 of the Constitution is all about qualification for a candidate to the Governorship election and has anything to do with punishment for defection”, they argued
On grounds seven, the appellants argued that the trial Court erred in law when it ordered Appellants to vacate their respective offices as Governor and Deputy Governor of Ebonyi State.
They also averred that the court was wrong to order 1st Respondent (PDP) to submit to 2nd Respondent (INEC) names of its candidates to replace Appellants as Governors and Deputy Governors of Ebonyi State.
They argued that the law bars the court from declaring anybody who did not take part in all stages of the election as wine of the said election.
“Section. 141 of the Electoral Act 2010 (as amended) states that: An election tribunal or court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all the stages of the said election.”
“Section. 285(13) of the Constitution, reinstated: An election tribunal or court shall not declare any person a winner at an election in which such a person has not fully participated in all stages of the elections.”, they quoted.
The appellants further argued that the trial court erred in law when it not only refused to be persuaded by but rather overruled the decisions of an Ebonyi state high court and a Federal High Court Gusau, Zamfara State on similar matters.
The apellants prayed the court to set aside the judgement of the High Court delivered by the Hon Justice Inyang Ekwo on 8th March 2022 and all orders made therein by the Hon. trial court.
