Defection: Why Federal High Court lacks jurisdiction to hear PDP suit against me — Gov. Umahi

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Governor Dave Umahi of Ebonyi state and his deputy, Dr. Eric Kelechi Igwe have challenged the jurisdictional powers of the Federal High Court to entertain the suit filed by the Peoples Democratic Party(PDP), seeking their removal from office on the basis of their defection to the All Progressive Congress (APC).

In a motion on notice dated November 23, the defendants are seeking a transfer of the suit to the High Court of Ebonyi state, which they contended is the proper court with requisite jurisdiction to adjudicate on the subject matter.

The motion was filed pursuant to order 26 of the Federal High Court (Civil Procedure) rules 2019; section 22(2) of the 1999 of the Federal High Court Act 1973 CAP F12 LFN 2004; Order 2 rule 1(3); order 49 rule 5 of the Federal High Court (Civil Procedure) rules 2019 and section 6(2) of the constitution of Federal of Nigeria, 1999.

Chief Chukwuma-Machukwu Ume, a Senior Advocate of Nigeria and former Attorney General of Imo state, who is counsel to Governor Umahi and his deputy, particularly drew the attention of the court to the fact that Nigeria is a federation with 36 states including Ebonyi state.

Ume strongly argued that since Governor Umahi was sworn-in by the Chief Judge of Ebonyi State and not by the Chief Judge of the Federal High Court, his removal from office can only be pursed through the State House of Assembly and the state High Court.

He further added that as a federating state, the constitution clearly spelt out the executive, legislative, and judicial powers of the state and federal government, with the federal courts separate from the state courts, as highlighted in section 6(5) (a)-(e) of the 1999 constitution.

Ume noted that while section 90 of the 1999 constitution provides for the establishment of state House of Assembly, sections 176 and 186 created the offices of the Governor and deputy governor respectively.

That while chapter VII Part 1 of the 1999 constitution clearly outlined the federal High Courts with their various specifically stated jurisdictions, Part II of chapter VII of same constitution created High Court of a state with specific jurisdiction.

Ume contended that by the provisions of section 251 (1) (4) the Federal High Court shall have and exercise jurisdiction to determine any question as to whether the term of office or a seat of a member of the Senate or the House of Representatives has ceased or his seat has become vacant, just as section 237(1) confers powers on the Court of Appeal to hear and determine any question as to whether (a) any person has been validly elected to the office of President or Vice-President: or their term has ceased or has become vacant.

Flowing from above, Ume argued that the jurisdiction of each of these courts is provided for by the Constitution at the very place of creation and they are obviously prohibited from entertaining suits that are not within their jurisdiction.

He argued that the defendants in the suit are public officers of Ebonyi state and therefore, the court with the jurisdiction to entertain the suit is the High Court of Ebonyi State and not the Federal High Court.

“It is clear that it is the intention of the constitution that these federal and state courts should have.their separate jurisdiction contextualised in the nature of the court: be it Federal or State.”

Ume therefore submitted that the provision of section 272(3) which provides: “subject to the provisions of section 251 and other provisions of this constitution, the federal High Court shall have jurisdiction to hear and determine the question as to whether the term of office of a member of the House of Assembly of a state, a Governor or Deputy has ceased or become vacant”, is certainly an innocuous devil printer.

“The offices listed in that provision(House of Assembly of a state, a Governor or Deputy Governor) are clearly state offices, thus since the Court of Appeal which are Federal Courts were given Federal offices to determine over, is it not reasonable that state High Court is given state offices to determine over.”

He argued that “accordingly, reference to “Federal High Court” in section 272(3) ought to be seen as a mere typographical error or a mere slip by the affected legal drafstman. The makers of the constitution and the First Alteration must have intended in section 272(3) to write”High Court of a state” and not “Federal High Court.”

This is because section 251(4) of the constitution has already made provisions similar to those in section 272(3), to capture similar jurisdiction of the Federal High Court in respect of a member of the senate or the House of Representatives. Section 272(3) must therefore be taken to be targeted at conferring on the High Court of a state (with respect to a member of the House of Assembly of a state, or a Governor, or deputy Governor of a state), jurisdiction similar to that conferred on the Federal High Court by section 251(4).”

Ume further submitted that “In as much as it is never the duty of the court of law to write, amend or re-write laws, it is however the duty of the court to read logical, unambiguous and reasonable meaning into the letters of the law so as to bring out the true intentions of the legislature while pushing aside literal barriers.”

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