There is more confusion in the aftermath of a federal high court judgment removing Governor Dave Umahi of Ebonyi state and 16 lawmakers from office as the governor on Friday secured a stay of execution of the order.
The nominee of the Peoples Democratic Party, PDP and member of the House of Representatives, Iduma Igariwey who is to succeed Umahi has described the continued occupation of the office of the governor by Umahi as illegal, saying he is now a former governor.
Igariwey emerged as the PDP candidate to replace Umahi after a Federal High Court sacked the incumbent and asked the Independent National Electoral Commission to enforce the court judgment and declare him the governor.
But Umahi filed an appeal against his removal at the appellate court and also approached the court of first instance in Ebonyi state which earlier dismissed a suit seeking his removal for a stay of execution of the Federal High Court judgment amid this legal haze, an Abuja based legal practitioner, Chief Godwin Emagun informed The Trumpet that “an appeal shall not operate as a Stay of Execution, but the Court of Appeal may order a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with rules of court”.
In Umahi’s case, he said an appeal has been filed in the Registry of the Court of Appeal with a request for a Stay of Execution but noted that filing an appeal is not tantamount to a Stay of Execution. “The matter must be assigned to a panel of three Justices in the Court of Appeal and the Stay of Execution must be heard on its merit and granted before the appeal can be heard”.
Barrister Emagun examined that a stay of execution is a Court Order to temporarily suspend the execution of a court judgment or court order. The word “execution” does not always mean the death penalty. It refers to the imposition of whatever judgment is being stayed and is similar to an injunction
According to him, the trial Judge decided the matter in favour of PDP as there is a lacuna in the constitution with regards to the removal of a Governor who defects to another party.
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He further explained that aspirants can only contest elections in Nigeria through the instrumentality of Political Parties and will be wrong for an incumbent to defect as the votes belong to the Party that nominated him as its Standard Flag Bearer
He said the most dishonourable thing for a British Member of Parliament or an American Congressman to do is to cross carpet. “He must first relinquish his position as an M.P. or Congressman, resign his membership of his Political Party and return to the polls to test his decision and popularity under a new political party”.
What is a lacuna in the law? In law, a non liquet (commonly known as “lacuna in the law”) is any situation where there is no applicable law. Non liquet translates into English from Latin as “it is not clear”. … loopholes are a subset of lacunae.
Emagun argued that Umahi must vacate office as the judgment by Justice Inyang Ekwo is now the law of the land since there is a lacuna and the matter has not been heard by a panel of three Justices of the Court of Appeal. For now, there is no subsisting order for a Stay of Execution. What we have is an application for a Stay of Execution which is still in the Court of Appeal’s Registry and not before the Court.
However, faced with the prospect of succeeding Umahi slip by, Igariwey in an address titled, ‘Justice Inyang Ekwo’s judgments of March 8, 2022, sacking Governor David Umahi and his deputy: A call on former Governor David Umahi to vacate office without further delay’ said, “The Constitution, under sections 240 and 241, allows a party like Umahi, in this case, to appeal to the Court of Appeal, but that appeal does not stop the person, who got the judgment from enjoying the fruits of the judgment. What Umahi will do if he wants to stay in that office is to get a stay of execution of this judgment.
“In the absence of a stay of execution by a court of competent jurisdiction, we are not asking him to go to the Abakaliki High Court and procure a stay of execution; that will not suffice in this circumstance; he needs to approach this same court that delivered this judgment. It is this court that will consider the merit of granting that stay of execution or not.
“That you have gone to appeal does not stop the process of obeying the court order, which is the case now. What will stay in our hands is if there is a stay of execution properly ordered by a court of competent jurisdiction.”
Meanwhile, Umahi and his deputy, Kelechi Igwe, secured the interim order from the High Court of Ebonyi State not to vacate their offices.
This followed the granting of an ex-parte motion by Counsel for the duo, Roy Umahi, brought pursuant to rule 3(3) of the High Court rules in suit number HAB/13/22.
The court had on February 28, 2022, ruled that Umahi and his deputy did not flout any law by defecting to the All Progressive Congress from the Peoples Democratic Party.
The court, presided over by Justice Henry Njoku, had dismissed the matter for lacking in merit and fined the plaintiff, Sunny Ogbuoji, who was the APC candidate and runner-up in the 2019 governorship election N500,000.
The Federal High Court in Abuja had on March 8, 2022, ruled on a similar matter filed by the PDP and ordered the governor and his deputy to vacate their seats.
Justice Ekwo in his judgment ordered the Independent National Electoral Commission to accept new nominations for the two positions from the PDP and to issue them with certificates of return for them to be sworn in as governor and deputy.
Umahi and his deputy rejected the Abuja ruling, arguing that the Ebonyi High Court ruling should take precedence.
To this effect, Umahi and Igwe approached the same Ebonyi High Court on Thursday and prayed it to declare that its February 28 judgment remained valid and as such, should take precedence over any other contrary judgment and should be binding on all parties, persons and authorities.
In his ruling, Justice Henry Njoku granted the prayers sought by the duo and adjourned the matter till March 16 for hearing on the motion on notice.
