By Azimazi Momoh Jimoh, Ameh Ochojila (Abuja), Lawrence Njoku (Enugu), Nnamdi Akpa (Abakaliki) and Charles Ogugbuaja (Owerri)
• Umahi sues for peace, vows to appeal decision • Judgment contradictory to Constitution, says counsel
• PDP names Igariwey, Udeogwu as new Ebonyi governor, deputy • Asks INEC to issue certificate of return to them
• Charges Ebonyi chief judge to swear in its nominees immediately • Court can’t remove them for defecting,
Ozekhome insists • It’s too radical and a departure from wording of our Constitution – Obiaraeri
• Decision has opened a new vista, says Ugwummadu
Justice Inyang Ekwo of the Federal High Court, Abuja, yesterday opened a new vista in Nigeria’s political landscape by ordering the Governor of Ebonyi State, Dave Umahi and his deputy, Dr. Kelechi Igwe, to vacate their offices for defecting from the Peoples Democratic Party (PDP) to the All Progressives Congress (APC).
Justice Ekwo said the move from the PDP to the APC was illegal and unconstitutional. The judgment followed suits marked FHC/ABJ/CS/ 920/21 and FHC/ABJ/CS/ 1041/21, filed by the PDP seeking the removal of the governor and his deputy from office for abandoning the party.
Justice Ekwo said the depositions of the 3rd and 4th defendants (Umahi and Igwe) in their counter-affidavit were “evasive and insufficient” to competently challenge the plaintiff’s originating process.
It was the opinion of the court that the “Immunity Clause” in section 308 of the Constitution is not absolute.
“Section 308 is a veritable constitutional shield,” the court said, adding that it was not inserted for political reasons.
Umahi and his deputy had filed a notice of preliminary objection challenging the suit by the PDP, arguing that Section 308 of the 1999 Constitution provided immunity to them from the plaintiff’s suit and that votes cast during the said elections belonged to them and not the plaintiff, going by the provisions of the Electoral Act, 2010 and recent Supreme Court pronouncements.
However, the court disagreed with them and held that Umahi and Igwe did not controvert the deposition that total votes scored in an election belong to a political party.
Justice Ekwo said evidence abound that the 2nd defendant (APC) contested the Ebonyi State Governorship election held on March 2019, with its own candidates.
“It can be noted that the Constitution does not deal with the issue of defection lightly.
“The 3rd and 4th defendants cannot transfer the votes and victory of the plaintiff on March 9, 2019, to the APC. Office of the Governor and Deputy Governor of Ebonyi state belongs to the PDP.
“The option for Umahi and Igwe is to vacate office and wait for the next election to contest election under the platform of their new party,” the court declared.
The court added that the act of the APC, Umahi and his deputy is aimed at dismantling the 1999 Constitution.
Consequently, the court held that the plaintiff won the majority of votes during the election and is entitled to enjoy same till end of tenure of office for which the election was made.
The PDP had in an originating summons asked 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.
Other defendants in the suit were the Independent National Electoral Commission (INEC) and the All Progressives Congress (APC).
Justice Ekwo also directed the 16 lawmakers of the Ebonyi State House of Assembly members who defected with the governor to the APC to accordingly vacate their seats.
Justice Ekwo held that the votes cast for PDP in the election and those for the House of Assembly were not transferable to the APC.
Justice Ekwo in a separate judgment in a suit by the Peoples Democratic Party PDP ordered the Speaker of the House of Assembly and his co-defectors to immediately stop holding themselves out as members of Ebonyi State House of Assembly.
BUT the ousted governor and his deputy have rejected the court judgment. They vowed to appeal the ruling, describing it as a mockery of justice.
Umahi insisted he still the governor of Ebonyi State, stressing that no criminal or civil proceedings can be brought against him as a sitting governor.
He told journalists in Abakaliki, the state capital: “There is nothing to worry about at all. In the first place, there is no Constitutional provision for any hatchet man to remove a governor. There are three ways whereby a governor can vacate his seat: either by death, resignation or impeachment through the House of Assembly. There is no any other Constitutional provision that empowers a hatchet man to turn the Constitution and the law upside down.”
“I have listened to the judgment of Ekwo and it is very obvious that he was on a mission. He was making all efforts to upturn the rulings of the Supreme Court and Appeal Court on issues like this.
“We heard the rumours before now, that he was determined to give judgment against all known laws and the Constitution, first to embarrass APC, secondly, to embarrass the Federal Government.
“For me, I do not feel worried. But I feel so sorry for the judiciary. The executive may have problems. The legislature may have problems. But the moment justice can be purchased, then we are in trouble in this country. The ruling, this afternoon, is clear evidence that this country is in trouble.
His commissioner for Information and Orientation, Uchenna Orji, said the governor and his deputy would appeal the judgment.
He said: “The trial Judge committed a glaring judicial error by giving judgment sacking a duly elected and sworn-in Governor and his Deputy without relying on or citing any provision(s) of the constitution of Nigeria or any provision of the Electoral Act that empowers the court to sack a sitting Governor and or his Deputy. This is purely a travesty of Justice.
“The court failed, refused and or neglected to understand the clear difference between a Governorship candidate of a political party as contemplated by the Electoral Act and a Governor of a State duly sworn in as contemplated by the Constitution.
Counsel to the defendants, Chukwuma Nwachukwu Ume (SAN), described the judgment as contradictory to the Constitution and Supreme Court ruling.
He said: “There is no provision against defection of the president, vice president or even the governor, or deputy governor. So, the court is giving judgment different from that of the Supreme Court. All the issues we raised were carpeted leading to this judgment. We are certainly going to appeal against the judgment.”
HOWEVER, the PDP has sent the names of Iduma Igariwey and Fred Udeogwu to the Independent National Electoral Commission (INEC) as replacement to Umahi and Igwe as governor and deputy respectively.
Igariwey is a serving member of the House of Representatives. National chairman of the PDP, Iyorchia Ayu, who disclosed this at an emergency press conference in Abuja, yesterday said the submission of the names, was in compliance with the judgment of the court.
Justice Ekwo had ordered INEC to immediately receive from the PDP, names of persons to replace Umahi and his deputy, or in the alternative, conduct fresh gubernatorial election in Ebonyi state in line with section 177(c) of the 1999 Constitution.
Ayu said that in line with the court order, PDP has immediately submitted to INEC the names of its candidates. He asked INEC to issue certificates of returns to Igariwey and Udeogwu immediately.
“We are also calling on INEC to immediately issue the Certificates of Return to the PDP nominees as replacement for Messrs Umahi and Igwe pursuant to the order of the Honourable Court.
“Furthermore, we call on the Chief Judge of Ebonyi State to immediately swear them in as soon as INEC issues the requisites Certificates of Return,”Ayu said.
The PDP chairman also called on INEC to immediately withdraw the Certificates of Return from the 17 lawmakers in the Ebonyi State House of Assembly whose seats were declared vacant and commence the process of conducting bye-elections to replace them.
SIMILARLY, the southeast chapter of the PDP has described the ouster of Umahi as victory for democracy. National Vice Chairman of the party, Dr. Ali Odefa said: “God used the PDP to make Umahi governor and God can also use us to remove him. It is victory for democracy. He ran away with our mandate, a mandate that was freely given to him. We are happy that the court has seen reasons with us and has done the right thing.
“In a democracy, it is the will of the people that triumph not force. He cannot jettison our party with our mandate and want to enjoy it.”
MEANWHILE, wild jubilation greeted the removal of the governor yesterday in the State. The Guardian gathered that the news was welcomed with great joy by some persons that described the sack of Umahi as “freedom at last”, while others said “the era of tyranny has come to an inglorious end”.
A civil servant, Ndom Akpa said: “We were living at the mercy of the Governor. I can’t tell you this is my salary because I don’t even know it. What you receive today is entirely different from what you will receive in the next month and the third month.
“In fact, his sack signals freedom at last for us because we have been living in bondage with no one to run to. You can ask my colleagues.”
The story was not different with lecturers of Ebonyi State University (EBSU) that said they have been living in fear as the Governor had intimidated them to a point that even their union (ASUU) was disbanded.
“Tyranny has come to an inglorious end I can tell you for free. I have never seen something like this all my life in the university. Where do I start? Our salaries are known to only the Governor and he pays whatever he wants and nobody dares to challenge him,” one of the lecturers said.
REACTING to the decision yesterday, former attorney general in Imo State, Prof. Nnamdi Obiaraeri expressed surprise that the judge could come to such conclusion.
According to him, saying that it is the political party that wins election is one limb of a Siamese relationship between a party and the candidates.
“The party wins the election, but if you go into the jurisprudence of election and electioneering, the certificate of return is not issued to the party, it is given to the candidate of the party. What it means is that that jurisprudence is obtuse and inchoate. That is too radical and a departure from the wording of our constitution,” he said.
According to him, the constitution only talked about removal of lawmakers on account of defection and not governors.
Defection, he said, is not one of the conditions under which a governor could be taken out of office.
Former president, Campaign for the Defence of Human Rights (CDHR), Malachy Ugwummadu said a new vista of judicial interpretation has emerged following the decision.
A governor, he said, cannot justifiably leave the party that sponsored him, regardless of his constitutional right to freedom of association under section 40 of the constitution.
He, however, added that the governor, in his opinion has not violated any constitutional condition or any law being that as at the time he was elected, he was a member of the PDP and the party sponsored him. He expressed the hope that the Supreme Court would be able to make a final decision on the matter.
For an Abuja based lawyer, Godwin Ogboji the judgment is sound. The lawyer argued that section 221 of the constitution clearly states that parties sponsor candidates.
According to him, there are judgments of the court that pointed out that votes belong to the political party and not individuals.
He frowned on politicians who criticise the bench because they are not favoured in judgment, adding that there are rooms for appeals instead of calling for the heads of the judges.
Another lawyer Jerry Aondo on his path described the judgment as commendable. He expressed optimism that the decision stands the test of time to preserve the political morality of Nigeria in line with the 1999 Constitution.
“The judgment is in line with the law, logic and good reasoning. Though, it might be seen by some as a political witch-hunt I disagree with it,” he said.
He explained that under Section 68(1)(g), the governor defected from the PDP to APC without any evidence that there was division in the party or a major split in the PDP.
He said the so-called Section 80 of the Electoral Act of 2011 (as amended), which the court relied upon to pass its verdict, recognises a political party as one corporate entity.
“Even if there was a division in the party as at the time he defected, the position of the Constitution states clearly that such defection must be one that affects the entire structure of a political party.
“The aim of the so-called provisions of section 68 was placed as a safeguard to punish the actions carried out by politicians and to address this unwanted tradition of cross-carpeting,” he declared.
