Governor David Umahi of Ebonyi State and his deputy, Dr. Eric Igwe, have joined issues with the Peoples Democratic Party (PDP) at the Federal High Court, Abuja.
This followed the filing of a counter affidavit in opposition to a suit instituted by the PDP seeking the removal Governor Umahi and his deputy from office on account of their defection to the All Progressives Congress (APC).
By the suit marked FHC/ABJ/CS/920/2021, PDP is praying the court to declare that by defecting from the party on which Umahi and Igwe were sponsored and elected as governor and deputy governor of Ebonyi State, respectively, to the APC, a political party that did not win the election, they have resigned or deemed to have resigned from office.
Also joined as defendant in the suit is the Independent National Electoral Commission (INEC).
However, in a counter affidavit in opposition to the suit, Umahi and Igwe are urging the court to dismiss the legal action for being defective and constituting a gross abuse of court process.
Chukwuma-Machukwu Ume (SAN) filed the counter affidavit on behalf of Governor Umahi and his deputy.
Ume drew the attention of the court to a similar suit marked FHC/ABJ/ CS/729/2021, filed earlier by the PDP and the Ebonyi State chairman of the party, Hon. Fred Udeogu, against the governor, the APC, INEC and others on the same subject matter.
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 with number 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”.
He further cited the case of Lagos State Vs AG Federation and Ors (2014), LPELR-22701 (SC), where the Supreme Court held that “…Multiplicity of actions which involve the same subject matter amount to abuse of court and the court has a duty to stop such abuse…”
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 Vs ACN and others (2012), Ume submitted, “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 originating 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.”
Citing the case law in Aromire and anor Vs Aromire and Ors (2019) LPELR-47704 (CA), the senior advocate submitted that the originating process is “incurably defective, there being no signature of the registrar of the court appearing on it, a condition precedent which affects the competence of the suit as well as the jurisdiction of the court.”
He further argued that the reliefs sought by the plaintiff to remove the 3rd and 4th defendants from office is an invitation to the court to exercise the powers of the legislative and executive arms of government contrary to the principle of separation of powers spelt out under sections 4, 5 and 6 of the 1999 constitution.
In addition, Ume posited that the 1999 constitution provides for the procedure for the election and removal of a sitting governor being the instrumentality of impeachment and not by court action.
Ume further submitted that his clients who are the current executive governor and deputy, respectively, are sued in their personal capacities while still in office against the spirit of the constitutional provision of section 308, which clothed them with immunity against civil or criminal proceedings while in office.
