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From Godwin Tsa, Abuja
On November 19, 2020, Governor Dave Umahi of Ebonyi State and his Deputy, Dr.Eric Kelechi Igwe defected to the All Progressives Congress, APC, from the Peoples Democratic Party, PDP. Since then, the PDP has insisted that they should vacate their respective offices on account of their defection to the APC.
The PDP proceeded to legally back up its demand by filing a suit before the Abuja division of the Federal High Court.
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 case is that the governor and his deputy 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.
But challenging the competence 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, filed earlier by the PDP and the Ebonyi chairman of the party , Fred Udeogu against the governor, the APC, the Independent National Electoral Commission(INEC) 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.
Still on the multiplicity of action, he referred the court to the judicial pronouncement of Justice Jummai Sankey of the Court of Appeal who stated thus: “Where two actions are instituted in court, the second one asking for a relief which may however be obtained in the first, the second action is, prima facie vexatious and an abuse of court process.”
Beyond the issue of abuse of court process, the defendants further challenged the mode of commencement of the suit by way of originating summons instead of a writ of summons, arguing that all the depositions in the plaintiff’s affidavit raised huge controversies and disputations that require oral testimonies and cross-examinations to enable the court decipher the truth.
Citing a plethora of legal authorities including a Court of Appeal decision in Kehinde V ACN and others (2012), Ume submitted that: “the law is trite that contentious matters as in this instant suit are to be brought by way of writ of summons to enable party lead evidence and be cross-examined.
“The plaintiff’s orginating summons raised very controversial issues in which the defendants particularly 3rd and 4th defendants are disputing very strongly, hence the need to call oral evidence to reconcile the conflict in the affidavit deposition and the documents attached therein.”
The defendants who have equally challenged the jurisdiction of the Federal High Court to adjudicate on the suit, are seeking a transfer of the suit to the High Court of Ebonyi State, which they contended is the proper court with requisite jurisdiction to adjudicate on the subject matter.
Canvassing legal argument on this, Ume strongly argued that since Governor Umahi was sworn-in by the Chief Judge of Ebonyi State and not by the Chief Judge of the Federal High Court, his removal from office can only be pursued through the State House of Assembly and the state High Court.
He further added that as a federating state, the constitution clearly spelt out the executive, legislative, and judicial powers of the state and Federal Government, with the federal courts separate from the state courts, as highlighted in section 6(5) (a)-(e) of the 1999 constitution.
Ume noted that while section 90 of the 1999 constitution provides for the establishment of state House of Assembly, sections 176 and 186 created the offices of the Governor and deputy governor respectively.
That while chapter VII Part 1 of the 1999 constitution clearly outlined the federal High Courts with their various specifically stated jurisdictions, Part II of chapter VII of same constitution created High Court of a state with specific jurisdiction.
Ume contended that by the provisions of section 251 (1) (4), the Federal High Court shall have and exercise jurisdiction to determine any question as to whether the term of office or a seat of a member of the Senate or the House of Representatives has ceased or his seat has become vacant, just as section 237(1) confers powers on the Court of Appeal to hear and determine any question as to whether (a) any person has been validly elected to the office of President or Vice-President: or their term has ceased or has become vacant.
Flowing from above, Ume argued that the jurisdiction of each of these courts is provided for by the Constitution at the very place of creation and they are obviously prohibited from entertaining suits that are not within their jurisdiction.
He argued that the defendants in the suit are public officers of Ebonyi and therefore, the court with the jurisdiction to entertain the suit is the High Court of Ebonyi State and not the Federal High Court.
“It is clear that it is the intention of the constitution that these federal and state courts should have their separate jurisdiction contextualised in the nature of the court: be it Federal or State.”
Ume therefore submitted that the provision of section 272(3) which provides: “subject to the provisions of section 251 and other provisions of this constitution, the federal High Court shall have 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 has ceased or become vacant”, is certainly an innocuous devil printer.
” The offices listed in that provision(House of Assembly of a state, a governor or deputy governor) are clearly state offices, thus since the Court of Appeal which are Federal Courts were given federal offices to determine over, is it not reasonable that state High Court is given state offices to determine over.”
He argued that “accordingly, reference to “Federal High Court” in section 272(3) ought to be seen as a mere typographical error or a mere slip by the affected legal draughtsman. The makers of the constitution and the First Alteration must have intended in section 272(3) to write ”High Court of a state” and not “Federal High Court.”
This is because section 251(4) of the constitution has already made provisions similar to those in section 272(3), to capture similar jurisdiction of the Federal High Court in respect of a member of the Senate or the House of Representatives. Section 272(3) must therefore be taken to be targeted at conferring on the High Court of a state (with respect to a member of the House of Assembly of a state, or a governor, or deputy governor of a state), jurisdiction similar to that conferred on the Federal High Court by section 251(4).”
Ume further submitted that “in as much as it is never the duty of the court of law to write, amend or re-write laws, it is however the duty of the court to read logical, unambiguous and reasonable meaning into the letters of the law so as to bring out the true intentions of the legislature while pushing aside literal barriers.”
