The duo according to the notice of appeal in suit no:FHC/ABJ/CS/920/2021
filed at the Abuja Judicial Division of the Appellate Court, disagreed with entire judgment of the lower court which ordered their sack for defecting to the All Progressive Congress (APC) from the People’s Democratic Party(PDP).
Recall, intel Region had earlier reported that Ebonyi Governor, vowed that no one could remove him from office, as he was covered by immunity aginst nay litigation as a sitting governor
They listed eight grounds of appeal against the lower court’s judgment.
Messrs Umahi and Igwe in ground one argued that the lower court erred in law and misdirected itself when it held that “I 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”.
They argued that Hon 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.
“The provisions of section 308 are specific Notwithstanding anything to the contrary in this Constitution, but subject to subsection (2) of this section, no civil or criminal proceedings shall be instituted or continued against 3rd and 4th Appellants during their mandate in office as Governor and Deputy Governor respectively”.
“There is no provision of the 1999 Constitution (as amended) that provides for the removal of 3rd and 4th Appellants as sitting Governor and Deputy Governor respectively of Ebonyi State for reason of defection”, they argued.
The appellants also averred that the
trial court erred in law and misdirected itself when it relied 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 PDP to the APC offended the provisions of the Constitution and must vacate their offices as Governor and Deputy Governor respectively.
While section 68 deals with grounds for vacation of seats by National Assembly lawmakers (Senate and House of Representatives), section 109 lists grounds for vacation of seats of State Lawmakers.
The appellants thus argued that ‘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 Hon. trial court assumed the role of the legislator and arrogated to itself the powers of amendment of the Constitution”
They further submitted that there is no provision in the 1999 Constitution (as amended) which states that Governor or deputy Governor will vacate his office if he defects from his political party to another political party.
The appellants in ground 3 argued that the lower court erred in law and overruled the decision of the Supreme Court of Nigeria when it held that ownership of votes cast during the Governorship Election of 2019 belongs to the 1st Respondent and not the.
“The Hon trial court relied on AMAECHI v. INEC and FALEKE v. INEC when same are no longer the law on the ownership of votes cast in an election
Ngige v. Akunyile (2012) 15 NWLR Pt.1323-343 (CA) the court held: “the above provisions show that a political party canvasses for votes on behalf of the candidate. In other words a political party is nothing more than agent of the candidate in gathering votes to an election”
“In INEC vs. Action Congress (2009) 2 NWLR Pt. 1126 – 524 (CA) the Court held: “…the participation of a political party does not exceed campaigning for the candidate….”, they argued.