Umahi, deputy oppose PDP’s move to remove them from office



Dave Umahi

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.

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