Ebonyi Governor David Umahi and his deputy, Kelechi Igwe, have filed an appeal against the High Court’s decision to remove them from office.
According to a notice of appeal filed at the Abuja Judicial Division of the Appellate Court in suit no:FHC/ABJ/CS/920/2021, the duo disagreed with the entire judgment of the lower court, which ordered their dismissal for defecting to the All Progressive Congress (APC) from the People’s Democratic Party (PDP) (PDP).
They offered eight reasons for appealing the lower court’s decision.
In ground one, Messrs. Umahi and Igwe stated that the lower court made a legal error 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 claimed that the Hon trial court was effectively overturning the Supreme Court of Nigeria’s decision in AG Federation v. Atiku Abubakar & 3 ORS (2007) LCN/3799(SC) that there are no constitutional provisions prohibiting the President, Vice President, 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 claimed that the trial court made a legal error and misdirected itself when it used Sections 68 and 109 of the Constitution of the Federal Republic of Nigeria 1999(as amended) to hold that the Appellants had violated the Constitution by defecting from the PDP to the APC and had to vacate their positions as Governor and Deputy Governor, respectively.
While section 68 covers grounds for National Assembly politicians (Senate and House of Representatives) to vacate their seats, section 109 covers grounds for State legislators to vacate their seats.
‘There is no particular mention of Governor and deputy Governor in the terms of section 68 and 109, respectively, of the 1999 Constitution,’ the appellants said (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 claimed that there is no provision in the 1999 Constitution (as modified) stating that a Governor or Deputy Governor must resign if he defected from one political party to another.
In ground 3, the appellants stated that the lower court erred in law by overruling the Supreme Court of Nigeria’s determination that the 1st Respondent owns the votes cast during the Governorship Election of 2019.
“The Hon trial court relied on AMAECHI v. INEC and FALEKE v. INEC when same is 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 canvassed for votes on behalf of the candidate. In other words, a political party is nothing more than an 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.
The appellants claimed that the lower court erred in law when it determined that the Appellants were presumed to have resigned from their positions as Governor and Deputy Governor of Ebonyi State because they defected to another political party.
They claimed that section 180(1)(c) of the Federal Republic of Nigeria’s 1999 Constitution (as amended) never contemplated or implied resignation, but rather resignation signed by the Appellants and presented to the Speaker of the Ebonyi State House of Assembly.
“The trial court had no evidence before it of Appellants’ resigning from their Offices”, they further submitted
The governor and his deputy also claimed that the lower court erred in ruling that the governor and his deputy were not protected by the immunity clause in the case.
“the Hon trial court erred in law when it held that the provision of the Public Officers Protection Act cannot avail the Appellants”.
They contended that the Appellants had committed no constitutional violation such that the provisions of the Public Officers Protection Act should be denied to them.
“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 claimed that the Hon trial court erred in law by prohibiting the Appellants from performing their duties as Governor and Deputy Governor of Ebonyi State on the grounds that they had violated 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
The appellants claimed that the trial court erred in law when it ordered the appellants to abandon their positions as Governor and Deputy Governor of Ebonyi State.
They further claimed that the court erred in ordering the 1st Respondent(PDP) to submit the names of its nominees to the 2nd Respondent(INEC) to replace the Appellants as Governors and Deputy Governors of Ebonyi State.
They claimed that the law prohibits the court from pronouncing somebody who did not participate in all phases of the election to be the winner of the 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.”, quoted.
The appellants further claimed that the trial court erred in law by not only refusing to be persuaded by, but also overruling, comparable rulings by an Ebonyi state high court and a Federal High Court in Gusau, Zamfara State.
The appellants asked the court to set aside the High Court’s judgment, which was given by Hon Justice Inyang Ekwo on March 8, 2022, as well as all orders made by the Hon. trial court.
