UMAHI

  • EMEKA NWADIOKE
  • Mar 16, 2022
  • 1.09k
  • 0
  • Comments Off on UMAHI: COURT SHOULD DECLARE ME EBONYI GOVERNOR – SENATOR OGBUOJI

UMAHI: COURT SHOULD DECLARE ME EBONYI GOVERNOR – SENATOR OGBUOJI

All Progressives Congress (APC) candidate in the last Ebonyi State Governorship Election, Senator Sunday Ogbuoji has declared his intention to head to court to challenge the court’s verdict that the Peoples Democratic Party (PDP) should nominate a replacement for embattled Governor Dave Umahi.

Justice Inyang Ekwo of the Federal High Court had sacked Umahi on the basis that he decamped to the APC from the platform upon which he won the election.

But Ogbuoji argues that he is the rightful person to take the mantle of leadership in Ebonyi State as the runner-up in the gubernatorial election.

In a press statement made available to CITY LAWYER, the former senator stated that he “had expected that, in line with our laws, only persons who participated in the said 2019 Governorship election in Ebonyi State are capable of being declared substitutes in a case as the one at hand.”

According to him, “The order that PDP should whimsically nominate ‘anyone’ to replace Governor Umahi who left the PDP was one that I am not in agreement with. My reason is simple – Hon. Iduma Igariwey never participated in the gubernatorial election in 2019. He vied for and won election for the House of Representatives to represent Afikpo North and Afikpo South Federal constituency. Therefore, he is incapable of being nominated to replace a Governor.”

Ogbuoji noted that he had instituted a similar action at the Ebonyi State High Court “but was, unfortunately, unable to get a favorable outcome thereat. However, with the turn of event to my favour at the Federal High Court Abuja, I was, once again, surprised at the consequential order made by my Lord of the Federal High Court, Abuja.”

According to the former gubernatorial candidate, “Section 33 of the Electoral Act, 2022 is the nearest law that draws our attention to what should be done in a situation where the General Election is yet to be held. The section requires that a political party can substitute its candidate in cases of death or withdrawal by holden a fresh primary election within 14 days from the date of such death or withdrawal.”

He stated that “in this case, the general election had been concluded with a winner and the first runner up. I emerged the runner up in that election. Therefore, if for any reason the PDP or its candidate Gov. Umahi are incapable of continuing in the office of Governor and a need to replace them arises, it is only proper that the first runner up in the election is the most legally qualified person to be named as a replacement. I hold this strong view because it is the people’s votes for both the party and its candidate that confers the authority to govern and if the votes of a particular party and candidate is no longer reliable, then the next legitimate votes are those of the first runner up.”

He vowed to approach the Court of Appeal to claim his mandate, saying: “In the light of the above brief statement, I am notifying the nation that I have instructed my lawyer to file application before the Court of Appeal in Abuja and the FHC (where a motion for stay of execution is pending) to be joined in the suits so as to ensure that all the issues are resolved adequately in line with our laws.

“My most earnest desire is the good of Ebonyi State and our people. I will continue to stand for justice and fairness to all.”

To join our Telegram platform, please click here

Copyright 2022 CITY LAWYER. Please send emails to citylawyermag@gmail.com. Join us on Facebook at https://web.facebook.com/City-Lawyer-Magazine-434937936684320 and on TWITTER at https://twitter.com/CityLawyerMag. To ADVERTISE in CITY LAWYER, please email citylawyermag@gmail.com or call 08138380083. All materials available on this Website are protected by copyright, trade mark and other proprietary and intellectual property laws. You may not use any of our intellectual property rights without our express written consent or attribution to www.citylawyermag.com. However, you are permitted to print or save to your individual PC, tablet or storage extracts from this Website for your own personal non-commercial use.

  • EMEKA NWADIOKE
  • Mar 15, 2022
  • 918
  • 0
  • Comments Off on ‘INTERIM ORDER AGAINST REMOVAL OF UMAHI CANNOT STAND’

‘INTERIM ORDER AGAINST REMOVAL OF UMAHI CANNOT STAND’

In this article, AKINTAYO BALOGUN, an Abuja based lawyer, asserts that there are several issues plaguing the legality and/or sustainability of the order of an Abakaliki High Court directing that Ebonyi State Governor Dave Umahi and his deputy must not be removed from office

On 10th March 2022, we were greeted with an Order granted Ex-parte (without hearing the other side), by a High Court of Justice sitting in Abakiliki, Ebonyi State (curiously filed just on 9th March 2022), wherein the Honourable Court in Suit No. HAB/13/2022 and vide Motion No: HAB/135M/2022, granted the prayers of the Defendants/Applicant as follows:

An interim order of this Honourable Court for seven days (7 days) (subject to renewal) is hereby granted, in view of its judgment in Suit No. HAB/13/2022 delivered on 28th day of February, 2022, being a judgment in rem, and having precedence over any subsequent contrary judgment. The Applicants hereto, Engr. David Nweze Umahi and Dr. Eric Kelechi Igwe shall accordingly remain and not be removed from office as governor and deputy governor of Ebonyi State respectively

It is easily deducible that this Ex-parte Order was made by the Ebonyi State High Court, following the judgment of the Federal High Court sitting in Abuja which had on the 8th Of March, 2022, declared the seat of the Governor, Deputy Governor, and 17 members of the House of Assembly vacant, following their defection to the All progressive Congress from the Peoples Democratic Party, a party under which they had been sponsored and elected to fill the various political seats in Ebonyi State. The Governor had informed a crowd the day after the judgment was delivered that he had hired a team of 17 SANs to prosecute an Appeal against the Judgement of the Federal High Court. However, while the said Appeal is believed to have been commenced, the same Engr. David Nweze Umahi and Dr. Eric Kelechi Igwe, addressed as Defendants/Applicants went gone back to the Ebonyi State High Court which had earlier on delivered a divergent Judgement to that of the Federal High Court, to seek and obtain the above-quoted reliefs, vide an Ex-parte application. We note that it is the same Suit Number that is contained in the heading of the instant Ex-parte Order that is also contained in the Judgement that had been earlier delivered on the 28th Day of February 2022 as stated in the Order. This means that it is one and the same suit where judgment had been earlier delivered that this Ex-parte Order is also being made and granted.

Several issues as to the legality and/or sustainability of the said Order have reason among pundits. We shall discuss these issues under the following subheads/issues for determination.

  1. Whether or not the Court ordinarily has not become functus officio upon the delivery of the judgment.
  2. Whether the Order made by the court does not amount to sitting on Appeal on its own judgment.
  3. Whether the Order made does not amount to a stay of execution of the Judgement of the Federal High Court sitting in Abuja
  4. Whether the declaration “An interim order of this Honourable Court for seven days (7 days) (subject to renewal ) is hereby granted, in view of its judgment in Suit No. HAB/13/2022 delivered on 28th day of February 2022, being a judgment in rem, and having precedence over any subsequent contrary judgment” does not amount to an attempt to oust the jurisdiction of any other court including a higher court.
  1. Whether the Court ordinarily has not become functus officio upon the delivery of the judgment.

It is a notorious fact that once a judgment is delivered, the Court becomes functus officio (that is, it has no power whatsoever to say or do anything in respect of the decision already made). They ordinarily have no powers to do or say anything in respect of the case again except to entertain certain applications as applicable under the rules of the honourable court.

Functus Officio was defined in the case of Buhari Vs INEC & Ors (2008) LPELR – 814 SC, where the Supreme Court held that a task performed; having fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no further or authority. In the case of Chief Ozo Nwankwo Alor & Anor. Vs Christopher Ngene & Ors (2007) LPELR – 431 (SC); (2007) 17 NWLR (Pt.1062) 163, the Supreme Court said of functus officio: “A final order envisages that it is a permanent order made by the Court and the parties in respect of whom or against whom the order is made, cannot go back to the same Court to challenge or change that order. That Court, by virtue of the order, is functus officio and the only option open to the parties is by way of appeal against the order. This means that the rights of the parties have been determined to finality, and they cannot go back to the same Court on those rights.

It is an undebatable fact that the State High Court in Ebonyi which had earlier delivered a judgment in the same suit with Suit No HAB/13/2022, constituting the same parties, have become functus Officio, immediately upon the delivery of its judgment on the 28th of February 2022. The court has no business whatsoever in respect of the suit except to conduct a garnishee proceeding in respect of the monetary aspect of the judgment or to hear an application for stay of execution of the judgment. It is respectfully submitted that whatever statement, Order, or instruction, given by the same court, which are not contained in the type as envisaged under the rules of the honourable court are to all intents and purposes invalid and the court should immediately set it aside when it has the opportunity to do so. In this instant case, the final judgment was delivered on 28th February 2022. The court had no business whatsoever hearing any application that seeks to reinforce its earlier judgment. The judgment is already in force. What then necessitated this fresh order from a court when nothing has arisen within its ranks to change its judgment is still a thing of concern? As a matter of fact, the Ex-parte Order which seeks to reinforce the judgment the Ebonyi High court had earlier delivered, has no place in law. It is strange and unknown to the practice of law. 

  1. Whether the Order made by the court does not amount to sitting on Appeal on its own judgement.

The decision of the Ebonyi State High Court to make an Order reinforcing its earlier decision or making any pronouncement whatsoever in respect of an already decided case is the same as a court sitting on appeal over its own decision, whether in making a contrary statement or in reinforcing its judgment. The new Order made by the court will now open a flood gate of applications and submissions and room for a fresh argument on an already decided action. This ought not to be. The Court of Appeal held in thus case of EDO STATE HOUSE OF ASSEMBLY & ORS v. AGBEBAKU CITATION: (2018) LPELR-45056(CA)

“The general position of the law is that a Court cannot set aside its decision or the decision of a Court of coordinate jurisdiction made on the merits. However the Court has inherent power to set aside its decision when same are later found to be a nullity, obtained by fraud or mistakenly given under the impression of parties’ consent. That power does not extend to a Court sitting on appeal over its own decisions.

The Order of the Ebonyi State High Court under review does not seek to nullify its judgment, nor does the issue of fraud or mistaken impression arise. There is no basis for the said Order. The Court most respectfully has taken a decision to sit on Appeal over its own decision. What business has a court that has delivered judgment in favour of a particular party have in delivering another Ex-parte Order to reinforce its judgment?

  1. Whether the Order made does not amount to a stay of execution of the Judgement of the Federal High Court sitting in Abuja

As earlier stated, it is easily deducible that this Ex-parte Order was given since there is a divergent judgment coming from the Federal High Court, sitting in Abuja. Now the Court in Abakiliki held thus:

“The Applicants hereto, Engr. David Nweze Umahi and Dr. Eric Kelechi Igwe shall accordingly remain and not be removed from office as governor and deputy governor of Ebonyi State respectively”

This Order is a direct contrast and opposite to the Order of the Federal High Court in Abuja which had held that the as governor and deputy governor of Ebonyi State, having defected from the party on which platform they won the election, are deemed to have resigned their offices. The court in Abuja further ordered the Independent National Electoral Commission (INEC) to accept from PDP names of its members to replace the governor and deputy governor of Ebonyi State to serve out the remaining part of their tenure or, alternative, conduct a fresh election to replace the governor and deputy governor of Ebonyi State. Until there is an Order for a stay of execution of this judgment, issued by the very court that delivered the judgment or by a higher court, this judgment remains the law that ought to be obeyed. In the practice of law in Nigeria, an application to stay the execution of a judgment, is usually made to the same court that had earlier delivered the judgment. This is why the application is made simply by filing a motion and not an Originating process. Another court with coordinate jurisdiction, cannot order parties to directly disobey a judgment of a court, and worst still after judgment had been delivered on both sides.  See Order 31 Rule of the Federal High Court Civil procedure Rules 2019. See also Order 54 Rule 1 of the Ebonyi State High Court Civil Procedure Rules 2008.

A State High Court, making an order that technically stays the execution of the judgment of a Federal High Court is a strange practice, unknown to law and unpracticable. 

  1. Whether the declaration “An interim order of this Honourable Court for seven days (7 days) (subject to renewal ) is hereby granted, in view of its judgment in Suit No. HAB/13/2022 delivered on 28th day of February, 2022, being a judgment in rem, and having precedence over any subsequent contrary judgment” does not amount to an attempt to oust the jurisdiction of any other court including a higher court.

We respectfully submit that simply stating that the Ex-parte order of this Ebonyi State High Court has precedence over any subsequent contrary judgment” without specifically stating which court it has precedence over is an attempt by the court to oust the jurisdiction of any other court, INCLUDING a superior court. Ordinarily, the only court that can set aside this instant order, is the Court that granted it based on certain grounds or a higher court. However, stating plainly that this Ex-parte Order of the Ebonyi State High Court has precedence over any subsequent contrary judgment automatically means that whoever gives a contrary judgment, ruling or opinion, whether a lower court, court of coordinate jurisdiction or a higher court, same is invalid and should be discountenanced. This we most respectfully submit is an enormous gaffe from the State High Court. How do you use such an Order to oust any other subsequent Order or judgment, without specifying or limiting who the subsequent Order is coming from? What makes the judgment have precedence over any subsequent contrary judgment? The use of the phrase “any other subsequent Order” is too wide, too lose, and dangerous.

Conclusion

We must state with the utmost respect to the Counsel and to the court that the processes filed before the Ebonyi State High Court that had earlier delivered a judgment, amounts to an abuse of court process and same must be disconnected from the practice of law in Nigeria. The Court cannot afford to continually receive, produce or argue documents that are unknown to the practice of law in Nigeria.

The courts must do all that is necessary to protect its integrity and appellation with jealousy. The courts cannot allow themselves to be tossed around like a game of chess or allow themselves to be controlled by the winds of time. It is popularly said that whenever a matter is brought before a court of competent jurisdiction for determination, it is not the parties that are on trial but the judiciary. The judiciary must always come out with its head up high. Additionally, legal practitioners should endeavour to advise their clients appropriately and not to allow the desperation of litigants and especially politicians to determine their line and style of practice. Within a few years, the politicians you see today will be gone or would have lost political relevance, but the legal profession spans an entire lifetime. The few pleasures and earnings of the moment should not be allowed to put an indelible stain on the profession. I hope the judiciary can retrace its steps on this issue.

Akintayo Balogun Esq., LL.B (Hons), BL, LL.M, is a legal practitioner based in Abuja, FCT. akinson6@gmail.com.

To join our Telegram platform, please click here 

Copyright 2020 CITY LAWYER. Please send emails to citylawyermag@gmail.com. Join us on Facebook at https://web.facebook.com/City-Lawyer-Magazine-434937936684320 and on TWITTER at https://twitter.com/CityLawyerMag. All materials available on this Website are protected by copyright, trade mark and other proprietary and intellectual property laws. You may not use any of our intellectual property rights without our express written consent or attribution to www.citylawyermag.com. However, you are permitted to print or save to your individual PC, tablet or storage extracts from this Website for your own personal non-commercial use. The views expressed in this article are entirely those of the author and do not necessarily reflect

CITY LAWYER cannot guarantee the completeness, accuracy of the data and content of the website, nor that it is up to date at all times. CITY LAWYER accepts no liability for any direct or indirect damage of any kind whatsoever that arises from, or is in any way related to the use of the website or its accessibility or lack thereof. The assertions and opinions expressed in articles, announcements and/or news on this website reflect the views of the author(s) and do not (necessarily) reflect the views of the webmaster, the internet provider or CITY LAWYER. CITY LAWYER can in no way whatsoever be held responsible for the content of such views nor can it be held liable for any direct or indirect damage that may arise from such views. CITY LAWYER neither guarantees nor supports any product or service mentioned on this website, nor does it warrant any assertions made by the manufacturers or promoters of such products or services. Users of this website are always recommended to obtain independent information and/or to perform independent research before using the information acquired via this website.

 

  • EMEKA NWADIOKE
  • Mar 15, 2022
  • 854
  • 0
  • Comments Off on WHY FEDERAL HIGH COURT LACKS POWER TO REMOVE UMAHI

WHY FEDERAL HIGH COURT LACKS POWER TO REMOVE UMAHI

MR. JOHN COLLINS NWOBODO, an Enugu based lawyer, argues in this piece that while the Federal High Court by section 272 (3) of the Constitution of Nigeria (as amended) has jurisdiction to hear and determine the question as to whether the term of office of a Governor or Deputy Governor has ceased or become vacant, that jurisdiction is not at large but only relates to the recognized grounds for their removal 

LEGAL EXPLORATION OF THE UNTENABILITY OF THE FEDERAL HIGH COURT JUDGMENT REMOVING THE GOVERNOR AND DEPUTY GOVERNOR OF EBONYI STATE FROM OFFICE

Introduction
On Tuesday, 8 March 2022, the Federal High Court Abuja presided over by Honourable Justice Inyang Ekwo while delivering judgment in Suit Number FHC/ABJ/CS/920/2022 instituted by the Peoples Democratic Party ordered the sack of the Engineer David Nweze Umahi and Dr. Eric Kelechi Igwe, Governor and Deputy Governor of Ebonyi State respectively.

The reason for the court’s decision is premised on the court’s understanding that votes garnered during elections belong to the Political Party that sponsored the candidate citing section 221 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). In the court’s view, since the Governor and his Deputy had defected from the Political Party through which they came into office, they cannot lawfully transfer the votes obtained under the platform of the PDP to the APC, their new political abode. The said provision of section 221 of the Constitution cannot by any stretch of imagination be interpreted to mean that votes scored in an election belong to Political Parties. The section merely states that only Political Parties can canvass for votes for any candidate in an election. To canvass simply means to ask for or seek support. The language of the Constitution is so clear and unmistaken that the role of the Political Party is to ask for votes on behalf of its candidate. A benefit obtained on behalf of someone indeed belongs to the person on whose behalf it is solicited and not otherwise.

Germane to the issue under discourse is the question whether the office of Governor or Deputy Governor of a State becomes vacant upon the defection of the holder of the office from the Political Party on whose platform he was elected. Put differently, can the Governor or Deputy Governor be removed from office on the ground of defection?

The above formulated question will be answered by an exploration of the law on how, when and circumstances under which an elected executive political office holder- President, Vice President, Governor, Deputy Governor can be removed or may cease to hold office.

Grounds for vacation of office or cessation of office under the Constitution
Under the Constitution, the office of the President, Vice President, Governor and Deputy Governor will become vacant under the following circumstances:

(a) Succession
(b) Death
(c) Resignation
(d) Impeachment
(e) Permanent incapacity
(See generally, sections 135, 143, 144 in respect of President and Vice President; 180, 188, 189 in respect of Governor and Deputy Governor).

From the above provision, defection is not one of the grounds for the Governor or his Deputy to vacate office. This issue came up for determination in the Supreme Court in the case of Attorney General of the Federation & 2 Ors. v Atiku Abubakar & 3 Ors (2007) 10 NWLR (Pt 1041) 1 wherein the Supreme Court categorically stated: “The power to remove the President and Vice President is provided for in section 143 of the Constitution. The provision clearly gives the role of removing the two public officers to the National Assembly….The Constitution has not conferred on the court the power to declare the office of the holder of the two offices vacant for whatever reason. Section 146 of the Constitution relied on does not confer such power on the Court….What section 146(3)(c) provides for is that where the office of the Vice President becomes vacant ‘for any reason’, the President shall nominate a new person, with the approval of each House of the National Assembly to fill the vacancy. The subsection does not confer any role on the Court in the process.” Section 191 (3) is the equivalent provision to section 146 in relation to the office of the Governor and Deputy Governor and the interpretation given to section 146(3)(c) applies mutatis mutanda to section 191(3).

Defection not a ground for a Governor or Deputy Governor to vacate office
Under the Constitution, defection as a ground to lose an elective political office applies only to members of legislative houses- Senate, House of Representatives and House of Assembly of a State. See section 68(1)(g) of the Constitution in the case of a member of the National Assembly and section 109(1)(g) in the case of member of the House of Assembly. In Abegunde v Ondo State House of Assembly & Ors (2015 8 NWLR (Pt 1461) 314 at 320 ratio 1, the Supreme Court held under section 68(1) of the 1999, where a person whose election to the legislative house was sponsored by a political party, becomes a member of another political party before the expiration of the period for which that house was elected, he would have to lose his seat in that house. But under the proviso to the said section, if his membership of the new political party occurred because there was division in the political party which sponsored him and as a result he joined the new political party he does not lose his seat.

From the foregoing, it is clear that the Constitution did not intend that an elected executive political office holder will lose his position on the ground of defection. The Supreme Court in Jev v Iyortom (2015) 15 NWLR (Pt 1483) 484 at 497 ratio 8 stated that the express and unambiguous mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication with regard to the same subject matter. Had the framers of the Constitution intended that defection shall be a ground for vacation of office by elected executive political holders they would have provided so in clear terms.

The legal proposition that votes belong to Political Party no longer the law
Again, let us re-examine the reason, on which the Court’s decision was based, that is, that votes garnered during election belong to political parties and not the candidate. This is in fact no longer the law. The often quoted case of Amaechi v INEC (2008) 5 NWLR (Pt 1080) in support of the proposition that votes belong to the political parties no longer stands. In Ozomgbachi v Amadi (2018) 17 NWLR (Pt 1647 171 at 174 ratio 6, the Supreme Court emphatically held that it is individuals, as candidates, who contest and win elections. Also, in CPC v Ombugadu (2013) 18 NWLR (Pt 1385) 66 at 78, 79 ratio 6, the Supreme Court held: “…While a candidate at an election must be sponsored by a Political Party, the candidate who stands to win or lose the election is the candidate and not the political party that sponsored him. In other words, political parties do not contest, win or lose election directly; they do so by the candidates they sponsored…”

Two other instances in addition to the ones earlier mentioned which may give rise to the removal of an elected executive political office holder are:

(1) Through a pre-election case instituted within 14 days of the occurrence of the event. See section 285 (9) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). However, the question may be asked did the suit which culminated in the orders made by the court a pre-election matter as defined by section 285 (14) of the Constitution (as amended). It is obviously not.

(2) Through an election petition complaining of an undue election or undue return. This is also not the case here.

Granted that the Federal High Court by section 272 (3) of the Constitution of Nigeria (as amended) has jurisdiction to hear and determine the question as to whether the term of office of…a Governor or Deputy Governor has ceased or become vacant, that jurisdiction is only in relation to the recognized grounds as already highlighted and does not extend to defection.

Impropriety of the Order Made
Another major flaw in the decision of the Court relates to the nature of order(s) granted. Assuming that defection is a ground to vacate office which is not though, the court lacked the jurisdiction to order the Peoples Democratic Party to submit a name of its candidate to INEC. In the circumstance where the offices of the Governor and Deputy Governor are vacant at the same time, the Speaker of the House of Assembly is the appropriate person to hold the office pending the conduct of fresh election. See section 191(2) of the Constitution (as amended).

Immunity not a bar when the issue touches on whether the office of a Governor or Deputy Governor has ceased or become vacant
One other point worth addressing before I end this discourse is the issue of whether the Governor can be sued in the context of the question of whether his office has become vacant. Learned Senior Advocate, Chief Mike Ozekhome, in his commentary titled, “Neither A Governor Nor Deputy Governor Can Be Removed From Office By A Court of Law For Defecting From His Political Party To Another” raised the question “Could the Governor and His Deputy Have Been Sued in the First Case?” and surmised that no civil or criminal proceedings could ever sustain against the Governor and Deputy Governor while still holding office citing in support the cases of Tinubu v IMB Securities PLC (2001) LPELR-3248 (SC); I.C.S (Nig.) Ltd v Balton B.V. (2003) 8 NWLR (Pt 822) 223; Fabunmi v IGP & Anor (no citation supplied) and Global Excellence Communications Ltd & ors v Donald Duke (2007) LPELR-1323 (SC). I strongly disagree with the Learned Senior Advocate’s viewpoint. The defence of immunity does not avail a Governor or Deputy Governor when the question borders on whether the term of office of a Governor or Deputy Governor has ceased or become vacant. This is because the Federal High Court is imbued or clothed with jurisdiction to hear and determine the question as to whether the term of office of…a Governor or Deputy Governor has ceased or become vacant by virtue of section 272 (3) of the Constitution of Nigeria (as amended).

John Collins Nwobodo Esq. LL.B, BL, LL.M
Enugu based Legal Practitioner

To join our Telegram platform, please click here 

Copyright 2020 CITY LAWYER. Please send emails to citylawyermag@gmail.com. Join us on Facebook at https://web.facebook.com/City-Lawyer-Magazine-434937936684320 and on TWITTER at https://twitter.com/CityLawyerMag. All materials available on this Website are protected by copyright, trade mark and other proprietary and intellectual property laws. You may not use any of our intellectual property rights without our express written consent or attribution to www.citylawyermag.com. However, you are permitted to print or save to your individual PC, tablet or storage extracts from this Website for your own personal non-commercial use. The views expressed in this article are entirely those of the author and do not necessarily reflect

CITY LAWYER cannot guarantee the completeness, accuracy of the data and content of the website, nor that it is up to date at all times. CITY LAWYER accepts no liability for any direct or indirect damage of any kind whatsoever that arises from, or is in any way related to the use of the website or its accessibility or lack thereof. The assertions and opinions expressed in articles, announcements and/or news on this website reflect the views of the author(s) and do not (necessarily) reflect the views of the webmaster, the internet provider or CITY LAWYER. CITY LAWYER can in no way whatsoever be held responsible for the content of such views nor can it be held liable for any direct or indirect damage that may arise from such views. CITY LAWYER neither guarantees nor supports any product or service mentioned on this website, nor does it warrant any assertions made by the manufacturers or promoters of such products or services. Users of this website are always recommended to obtain independent information and/or to perform independent research before using the information acquired via this website.

  • EMEKA NWADIOKE
  • Mar 09, 2022
  • 905
  • 0
  • Comments Off on FHC LACKS JURISDICTION TO REMOVE UMAHI, SAYS OKUTEPA

FHC LACKS JURISDICTION TO REMOVE UMAHI, SAYS OKUTEPA

In this opinion article which he posted today on the CITY LAWYER WhatsApp platform, fiery Bar Leader and Election Petition lawyer, MR. JIBRIN OKUTEPA SAN argues that the Federal High Court lacks the constitutional power to unseat Ebonyi State Governor Dave Umahi

Today the a Federal High Court sitting in Abuja had ordered the Governor Ebonyi State Chief Dave Umahi and his Deputy Chief Eric Kelechi Igwe to vacate their offices on account of their defections from PDP to APC. The plaintiff in the matter was PDP. The learned trial judge based his judgment, from what I gathered from the news making rounds that the votes that brought the Governor and his Deputy to power were votes of PDP and not personal votes of the duo, and therefore the duo were not capable of transferring the votes to APC. Before I make further comments let me be clear. I am not a member of any of the Nigerian Political parties and I have no political affinity with any. My comments are purely to interrogate the constitutional validity of the decision and the jurisdiction of the court to make the orders and declarations it made.

This judgment on the superficial level seems very attractive and well intentioned to instill political sanity in our otherwise reckless political terrains. But beyond this and also scoring political debates, is there jurisdiction in the Federal High Court to make the orders it made, in the light of, and upon a dispassionate construction and interpretation of Nigerian Constitution 1999 as amended. I do not think so. I will therefore endeavor to draw our attention to the procedures for removal of governor and his deputy and the authority or institution that has jurisdiction to do so as provided in our constitution.

There is no dispute that the Nigerian Constitution provides that there shall be a governor and a deputy governor for each states of the Federation. See section 186 of the 1999 constitution. There is equally no doubt that for purposes of election to the office of the governor and deputy governor they do so on the platforms of political parties. This very much is conceded. But after elections, declaration and swearing in of the Governor and Deputy Governor, the Constitution has set out how they duo can be removed from office, who has the powers to remove them and which court can decide if their term of office has come to an end.

Section 188 of the 1999 Constitution deals with who can remove a Governor or Deputy Governor from office. It is the House of Assembly after following the due processes set out in the constitution. No matter the political iniquities committed by the Governor and his Deputy there is no jurisdiction in the Federal High Court to remove them from office or ordered their removal from office.

There is no power and jurisdiction in the Federal High Court to determine and declare that by constitutional misconduct of defecting to another political party other that the party upon which the Governor and the Deputy Governor were elected their seats had become vacant and to order the conduct of election to their offices. Jurisdiction to made post election declarations and orders as made by the Federal High Court is not in our constitution. Section 251 of the 1999 constitution as amended in subsection 4 limited the jurisdiction of Federal High Court to determine whether the seat of a member of House of Representatives has become vacant or that of members of senate.

It appears that the draftsman of our constitution did not contemplate that when a governor defects or his deputy then he or she must vacate the office. If that were to be the case, the constitution would have said so. See section 68(1) (g) of the 1999 Constitution. When there is a dispute whether the term of office of a member of House of Assembly, Governor or Deputy Governor has become vacant or that they have ceased to hold their respective offices by whatever allegations, only the state High Court has jurisdiction to entertain such complaints. See section 272 (3) of the Constitution.

Clearly from the reading of the entire Nigerian Constitution, it is submitted with respect that while one must celebrate the jurisprudential logic and reasoning in the judgment under review, which is thought provoking and accord with moral demands to see that our democracy is well nurtured and follow best international practices and standards, such logic and reasoning cannot be situated within any of the well known cannons of interpretations.

The Supreme Court set the cardinal principles governing the interpretation of constitutional provisions as enunciated in the case of Rabiu vs The State (1980) 8-11 SC 130, that Courts should whenever possible and in the interest of justice lean to the broader interpretation unless there is something in the text or the rest of the constitution indicating that the narrower interpretation will best carry out the objects and purposes of the Constitution. This very much his lordship Adekeye, JSC as he then was said in the case of the Attorney General of Nasarawa State vs. Attorney General Of Plateau State(2012) LPELR-9730(SC) at 62, paras. B-C) when his lordship said Constitution must be read as a whole to determine the object of particular provisions.

This is what the Supreme Court said: It is a settled principle of interpretation that whenever a Court is faced with the interpretation of a Constitutional provision, the Constitution must be read as a whole in determining the object of the particular provision. This requirement places a duty on the Court to interpret related Sections of the Constitution together. See Nafiu Rabiu v. The State (1980) 8 – 11 SC 130 at 148; (1980) 8 – 11 SC (Reprint) 85 and Bronik Motors & Anor v. Wema Bank Ltd (Supra). In Hon. Justice Raliat Elelu-Habeeb (Chief Judge of Kwara State) v. AG Federation & 2 Ors (2012) 2 SC (Pt.1) 145, this Court stated thus:- “The duty of the Court when interpreting a provision of the Constitution is to read and construe together all provisions of the Constitution unless there is a very clear reason that a particular provision of the Constitution should not be read together. It is germane to bear it in mind the objective of the Constitution in enacting the provisions contained therein. A Section must be read against the background of other Sections of the Constitution to achieve a harmonious whole. This principle of whole statute construction is important and indispensable in the construction of the Constitution so as to give effect to it.

Guided by the above decisions and other decisions of our superior courts of record, it is my submission that the decision of the Federal High Court in this case suffers seriously from jurisdictional fatalities and may not stand when challenged. The question of independent candidate does not arise in this case.

Clearly the constitution has set out how a Governor and Deputy can be removed from office after they had assumed duties. The law is that where the law has set out how a thing is to be done and in this case the Nigerian Constitution has set out how to remove Governor and Deputy only that procedures must be followed. This much the Supreme Court has said per Garba JSC. Hear Garba JSC.

“In IAL 361 Inc. v. Mobil Nig. Plc (supra), the law was restated at page 2 that:- “And the law is sacrosanct that where there is a non-compliance with a stipulated precondition for setting a legal process in motion, any suit instituted in contravention of the pre-condition provision of the relevant law, is incompetent and a Court of law, is for that reason, lacking in jurisdiction/power to entertain it.” The cases of Western Steel Works Ltd. v. Iron & Steel Workers Union of Nigeria (1986) 3 NWLR (pt. 30) 617, Ajanaktl v. C.O.P. (1979) 3 & 4 SC, 28, and Gambari v. Gambari (1990) 5 NWLR (pt. 152) 572 are cited and relied on for that position of the law. This Court, per Musdapher, JSC, (former CJN) in the case of Owoseni v. Faloye (2005) 14 N WLR (pt. 496) 719 at 740 had stated in the lead judgment, that:- “Now, in my view, the Court of Appeal is perfectly right in the statement of the law to the effect that where a statute prescribes a legal line of action for the determination of an issue, be it an administrative matter, Chieftaincy matter, or a matter for taxation, before going to Court.” Oguntade, JSC, in his concurrent decision emphasized at page 757, that: “It is important to stress that laws which prescribed that some procedural steps to be taken to resolve a dispute before embarking on actual litigation are not and cannot be treated or categorized as ousting of the jurisdiction of the Court. Indeed, if such laws do so, they would be in conflict with the provisions of the Constitution. Such laws, only afford the body to which such disputes must be referred to in the first instance an opportunity to resolve the dispute if it can before recourse to the Court. In other words, they serve the purpose of preventing actual litigation in Court where it is possible or desirable to resolve the dispute.” Then in Ogologo v. Uche (2005) 14 NWLR (pt. 945) 226 at 245, Belgore JSC (former CJN) restated, emphatically, that:- “Where a law has given exclusive power to a body to decide, the Court cannot come in before that body has exercised that power. Court can come in only where there is exhaustion of all remedies before that body and Court will then be able to decide whether that power had been exercised lawfully.” See also Okomalu v. Akinbode (2006) 9 NWLR (pt. 985) 338 (SC). From these authorities, it is clearly incontestable, legally, that where the provisions of a statute or law prescribe some internal mechanisms by which, remedies or reliefs for some grievance/s could be sought and to be followed or complied with by a party before instituting a legal action in a Court of law over the same grievance/s, the party has no discretion or option, but to exhaust all the remedies provided for by the statute or law first, before going to Court as the Court’s jurisdiction in such circumstance, will be put in abeyance pending the completion of the internal mechanisms for the remedies. I refer to ORAKUL RESOURCES LIMITED & ANOR V. NIGERIAN COMMUNICATIONS COMMISSION & ORS (2022) LPELR-56602(SC) Per GARBA, JSC at PP. 26-29, paras. D-A

Clearly the procedures adopted by the PDP in seeking the removal appears with respect outside of the contemplation of our constitution.

But let us wait and see what the other higher courts in the land will say, but until then it does not lie in the mouth of the Governor or his Deputy to say they will not obey the orders. Their remedies are not in acting contemptuously but in ventilating their dissatisfactions by due process.

Copyright 2020 CITY LAWYER. Please send emails to citylawyermag@gmail.com. Join us on Facebook at https://web.facebook.com/City-Lawyer-Magazine-434937936684320 and on TWITTER at https://twitter.com/CityLawyerMag All materials available on this Website are protected by copyright, trade mark and other proprietary and intellectual property laws. You may not use any of our intellectual property rights without our express written consent or attribution to www.citylawyermag.com. However, you are permitted to print or save to your individual PC, tablet or storage extracts from this Website for your own personal non-commercial use. The views expressed in this article are entirely those of the author and do not necessarily reflect

CITY LAWYER cannot guarantee the completeness, accuracy of the data and content of the website, nor that it is up to date at all times. CITY LAWYER accepts no liability for any direct or indirect damage of any kind whatsoever that arises from, or is in any way related to the use of the website or its accessibility or lack thereof. The assertions and opinions expressed in articles, announcements and/or news on this website reflect the views of the author(s) and do not (necessarily) reflect the views of the webmaster, the internet provider or CITY LAWYER. CITY LAWYER can in no way whatsoever be held responsible for the content of such views nor can it be held liable for any direct or indirect damage that may arise from such views. CITY LAWYER neither guarantees nor supports any product or service mentioned on this website, nor does it warrant any assertions made by the manufacturers or promoters of such products or services. Users of this website are always recommended to obtain independent information and/or to perform independent research before using the information acquired via this website.