The Court of Appeal, Enugu Division, on Friday, affirmed the judgment of an Ebonyi State High Court in Abakaliki, which dismissed a suit praying that Governor David Umahi and his deputy, Dr Kelechi Igwe, be removed from office following their defection from the Peoples Democratic Party to the All Progressives Congress.
The Court of Appeal, in a unanimous verdict by a three-man panel, comprising Justices Joseph Oyewole, Ahmad Belgore and Sybil Nwaka-Gbagi, upheld the earlier decision of Justice Henry Njoku of the Ebonyi State High Court, who had on February 28, 2022 threw out the suit praying that Umahi and Igwe be removed from office.
The suit was filed by Senator Soni Ogbuoji, Justin Ogodo and the APC, who had argued that having defected from the PDP, on whose platform they were elected into office, Umahi and Igwe ought to vacate office, on the basis that the votes that brought in were cast for the PDP and not for them as the party’s candidates in the 2019 Ebonyi State governorship election.
Ogbuoji and Ogodo, who were the APC flag-bearers in the election, had prayed that, having come second in the election, the court should order that they should be sworn in as replacements for Umahi and Igwe, respectively.
But Justice Njoku dismissed the suit, holding that it lacked merit.
Displeased, the plaintiffs went to the Court of Appeal, which, however, on Friday equally dismissed their case.
Justice Oyewole, who read the appellate court’s lead judgment, said the 2008 decision of the Supreme Court in Amaechi vs INEC, as well as the combined reading of sections 221, 177 and 285 (13) of the constitution and sections 31, 85(1), 87(9) and 141 of the Electoral Act 2010, which the appellants relied on would not avail them.
He held, “I have examined the provisions of the Constitution and the Electoral Act and I may say, with due respect to learned counsel, that they are totally irrelevant… They do not relate to the conduct and removal of elected office holders after coming into office.”
Justice Oyewole held that, unlike legislators who, by virtue of sections 68(1)(g) and 109(1) (g), are liable to losing their seats if they defect from the party on which they won election, the constitution was silent on the consequence for elected heads of the executive in the same situation.
Justice Oyewole commended Justice Njoku for rejecting the prayer of the appellants to sack Umahi and Igwe.
Seeming to address the controversy generated by the judgment of another judge, Justice Nyang Ekwo of the Federal High Court in Abuja, who in a similar suit had sacked Umahi and Igwe, Justice Oyewole said it was not the job of the judiciary to remove elected heads of the executive arm of government.
He held, “The learned trial judge (Justice Njoku) must be commended for rejecting this invitation, which would have done incalculable damage to the rule of law and constitutionalism. Judicial activism must be guided by the rule of law; otherwise, it will degenerate to judicial rascality.”
Justice Oyewole stressed that “The removal of elected member of the executive arm of government is substantially that of the legislature and where impeachment is contemplated the role of the judiciary is limited to setting up the investigative panel. The removal of the heads of other arms of government has not been ascribed to the judiciary.”
He awarded N200,000 cost against Ogbuoji and Ogodo in favour of Umahi and Igwe.
He, however, rejected the argument by Umahi and Igwe, through their lawyers, that the suit should not have been brought against them because they enjoy immunity under Section 308 of the constitution.
“Immunity provided by Section 308(1) of the constitution cannot avail the 1st and 2nd respondents in the circumstances of the case,” Justice Oyewole held.
The other members of the panel, Justices Belgore and Nwaka-Gbagi, aligned with the lead judgment.
Reacting, Umahi commended the judgment, saying he would always defeat his opponents no matter where they went.
“We will conduct a special praise and worship service on Sunday to thank God for His mercies on the government and the people,” he said.
However, a PDP chieftain, Chief Abia Onyike, said the judgment would be challenged at the Supreme Court.
