The Abuja division of the Federal High Court has fixed November 24 for definite hearing in the suit wherein the Peoples Democratic Party(PDP) is seeking the removal of Governor David Umahi of Ebonyi State and his deputy, Dr. Eric Kelechi Igwe on account of their defection from the party to the All Progressive Congress (APC).
But responding to the suit, Governor Umahi and have urged the court to dismiss it for being defective and a gross abuse of the court process.
The crux of the plaintiff’s case is that the defendants purportedly defected and relinquished their membership of the PDP on which platform they contested and won the governorship election, and by so doing are deemed to have lost the majority votes scored at the election and consequently should be ordered by the court to vacate their respective offices as Governor and deputy governor of Ebonyi state.
Challenging the competent of the suit through a counter affidavit filed by their counsel, Chukwuma-Machukwu Ume (SAN), Governor Umahi and his deputy drew the attention of the court to a similar suit marked FHC/ABJ/CS/729/2021, field earlier by the PDP and the Ebonyi state chairman of the party , Hon Fred Udeogu against the governor, the All Progressive Congress, the Independent National Electoral Commission and others on the same subject matter, reliefs and annexures attached as the instant case.
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 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 V AG Federation and Ors (2014) LPELR-22701 (SC) where the Supreme Court held that “…Multiplicity of actsns 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 requires 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 V 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 orginating 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.”
On same issue, the senior lawyer, citting the case law in Aromire and anor V Aromire and Ors (2019) LPELR-47704 (CA), submitted that the originating process is incurable 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.
In addition, 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.
On this point, Ume, a former Attorney General of Imo state emphasised in his written address, the fact that, “this section (308), applies to a person holding the office of the President or Vice-President, Governor or Deputy Governor; and the reference in this section to ” period of office” is a reference to the period during which the person holding such office is required to perform way functions of the office.”
