Gov Umahi, Deputy ask Court of Appeal  to set aside judgement 

Barely 24 hours after Justice Inyang Ekwo of the Federal High Court Abuja ordered their removal from office, Governor David Umahi of Ebonyi State and his deputy, Kelechi Igwe have appealed the judgement delivered on Tuesday March 8, 2022.

By the notice of appeal dated March 9, and filed by Chukwuma Machukwu Ume (SAN), the appellants want the court to allow their appeal and set aside the judgement of Justice Inyang Ekwo of the Federal High Court Abuja, that removed them from office.

Umahi  appeal was predicated on 11 grounds. Similarly, the sacked 16 All Progressives Congress members of the Ebonyi State House of Assembly have prayed the appellate court to set aside Justice Inyang Ekwo’s judgment of March 8, which asked them to vacate their seats. 

The affected lawmakers in their notice of appeal dated March 9, are seeking an order of the Court of Appeal setting aside the judgement of Justice Ekwo.

Respondents in the appeal are the Peoples Democratic Party (PDP), the Independent National Electoral Commission (INEC), and All Progressives Congress (APC). 

In ground one of their  appeal, Umahi and Igwe contended that the lower court erred in law and misdirected itself when it held; “| 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”.

The appellants submitted that the 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 or meting out punishment for doing same”. 

“The trial court was also virtually setting aside the decision of the Supreme Court in Global Excellence Communications Ltd v. Duke (2007) LPELR — 1323 to the effect that state Governors and their deputies have immunity against being sued while in office” the appellants argued. 

Umahi and Igwe posited that the provisions of section 308 are specific notwithstanding anything to the contrary in the Constitution but subject to subsection (2) of the section, “no civil or criminal proceedings shall be instituted or continued against 3th and 4th Appellants during their mandate in office as Governor and Deputy Governor respectively”. 

More so, the appellants maintained that “there is no provision of the 1999 Constitution (as amended) that provides for the removal of the Appellants as sitting Governor and Deputy Governor respectively of Ebonyi State for reason of defection. 

Among other grounds, the appellants argued that the lower court erred in law when it assumed jurisdiction on issue of defection of Appellants when it has no jurisdiction over same. 

The error according to Umahi and Igwe is that the trial court’s interpretation of what amounts to the Federal High Court having the powers of State High Court under the Constitution was wrong.”Power of Court and jurisdiction are not the same”.

The Appellants argued that they are state officers and not Federal officers. The appellants also faulted Justice Ekwo for relying 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 1st Respondent (PDP) to the 3rd Respondent (APC) offended the provisions of the Constitution and must vacate their offices as Governor and Deputy Governor respectively. 

Umahi and Igwe claimed that the trial court misdirected itself  because “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 trial court assumed the role of the legislator and arrogated to itself the powers of amendment of the Constitution. 

“There is no provision in the 1999 Constitution (as amended) which state that Governor or deputy Governor will vacate his office if he defects from his political party to another political party.