Dave Umahi, governor of Ebonyi State and the deputy governor, Eric Kelechi Igwe have approached the Abuja Division of the Court of Appeal asking it to set-aside the judgement that sacked them from their respective offices over their defection from the Peoples Democratic Party (PDP) to the ruling All Progressive Congress (APC)
The duo, through their team of lawyers led by a Senior Advocate of Nigeria, Chukwuma Machukwu Ume, in their eight grounds of appeal, maintained that Justice Inyang Ekwo of the Federal High Court in Abuja, erred in law in his judgement and occasioned a grave miscarriage of justice against them.
They argued that the trial court, in ordering them to vacate their offices based on the suit marked FHC/ABJ/CS/920/2021, attempted to overrule a subsisting decision of the Supreme Court in AG Federation v. Atiku Abubakar & 3 ORS (2007) LCN/3799 (SC), Vanguard reported.
The duo contended that the apex court had in its decision, held that no constitutional provision prohibited a sitting President or Vice President, and invariably, the Governor or Deputy Governor, from defecting to another political party.
They maintained that the trial high court judge erred, when he held thus; “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 the trial court ought to have dismissed the case of the Peoples Democratic Party, PDP, in view of the clear provision of section 308 of the 1999 Constitution, as amended.
“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 further contended that the lower court miscarried justice against them and erred in law, when it relied on Sections 68 and 109 of the Constitution, as amended, in holding that having defected from the PDP to the APC, they acted in breach of the Constitution, and must therefore, as a consequence, vacate their offices.
They noted that whereas section 68 of the Constitution, stipulated the grounds for a member of the National Assembly to vacate his seat, section 109, listed grounds for vacation of seat by a member of a State House of Assembly.
It is the position of the Appellants that there is no specific mention of Governor and Deputy Governor in the provisions of both sections 68 and 109 of the 1999 Constitution, as amended.
“By relying on sections 68 and 109 of the Constitution the Honourable trial court assumed the role of the legislator and arrogated to itself the powers of amendment of the Constitution”, the Appellants stated, insisting that no constitutional provision mandated a Governor or Deputy Governor to vacate office after defecting from one political party to another.
More so, Umahi and Igwe, argued that the high court erred in law and overruled the decision of the Supreme Court, when it held that ownership of votes cast during the March 9, 2019 governorship election in Ebonyi state, belonged to the PDP.
“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 Appellants quoted the trial judge to have stated thus; “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”.
They, however, argued that the Court of Appeal had in a decided cases law in INEC vs. Action Congress (2009) 2 NWLR Pt. 1126 – 524 (CA), held that, “the participation of a political party, does not exceed campaigning for the candidate….”.
Besides, in the ground four of their appeal, the Appellants, stated that the trial judge erred, when he held that they were deemed to have resigned from their respective offices as Governor and Deputy Governor of Ebonyi State, upon their defection to the APC.
They argued that section 180(1)( c) of the 1999 Constitution, as amended, never contemplated or implied such resignation, but a resignation that is signed by the Appellants and tendered to the Speaker of the House of Assembly of Ebonyi State.
They said their was no evidence before the trial court that they had at any time, tendered such resignation.
On the issue of immunity clause as provided for in section 308 of the Constitution, they argued that “the Honourable trial court erred in law when it held that the provision of the Public Officers Protection Act, cannot avail the Appellants”.
According to the Appellants, “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”, adding that they never committed any constitutional breach to deny them the benefit of the Public Officers Protection Act.
Furthermore, the Appellants argued that the trial court erred in law, when it restrained them from carrying on the duties in their offices as Governor and Deputy Governor of Ebonyi State, on the premise that they acted in breach of sections 177(c) and 221 of the Constitution.
“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 (PDP), 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.
They averred that the trial court erred in law, when it ordered the 1st Respondent (PDP) to submit to the 2nd Respondent (INEC), names of its candidates to replace the Appellants as Governor and Deputy Governor of Ebonyi State.
They argued that no law gave the court the power to declare anyone that did not participate in all stages of the election, as winner of the said election.
“Section141 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”, the Appellants stated.
They maintained that Justice Ekwo ought to have been persuaded by subsisting decisions of both the High Court in Ebonyi state and the Federal High Court in Zamfara State, on the issue of detection.
Consequently, they prayed the appellate court to set-aside the judgement that sacked them from office, alongside with all orders that were made therein.
Cited as Respondents in the appeal, were the PDP, INEC and the APC.
Meanwhile, no date has been fixed for hearing of the appeal, Vanguard reported.