Defection: Appeal Court upholds FHC, Uyo judgement, dismisses Ituen suit

Ekemini Udim

The Federal High Court sitting in Uyo, per Justice F. O. Riman was right in holding that the seat of Hon. Idongesit Ituen had become vacant following his defection from the PDP to the APC while his tenure in the Akwa Ibom State House of Assembly was yet to elapse. That the appeal against the said judgment is without merit and therefore dismissed.

The presiding judge, Justice Mojeed Adekunle Owoade, JCA (with Bakari, JCA and Shuaibu, JCA concurring) declared in the judgement he delivered in the Court of Appeal in Calabar on Friday.

It would be recalled that around October 2017, Hon. Idongesit Ituen, who represented Itu State Constituency in the Akwa Ibom State House of Assembly defected from the People’s Democratic Party (PDP) to the All Progressives Congress (APC) before the expiration of the four years tenure for which he was elected.

He then filed a suit at the Federal High Court to restrain the speaker of the AKHA from declaring his seat vacant.

The suit was defended by the then Speaker, Rt. Hon. Onofiok Luke through his Counsel, Ekemini Udim and other lawyers in justice Chambers. The speaker urged the court to dismiss the suit.

The speaker also raised a counterclaim and urged the court to hold that the seat in issue had become vacant by operation of Law the moment the honourable member jumped ship from PDP to APC while his tenure was still intact. Decided authorities were cited to buttress the claims.

Learned counsel for PDP, Goddy Umoh, Esq (who at the time was the State Legal Adviser of the PDP) also urged the court to dismiss the suit and declare the seat vacant.

In a well-considered judgment delivered by Hon. Justice Fatun Riman, the judge upheld the arguments of counsel for the respondents and dismissed the suit for want of merit.

The court then upheld the counterclaim and declared among others that the seat became vacant by operation of law the moment Ituen defected from the political party that sponsored him to another political party. He then made an injunction restraining the then speaker from further giving recognition to Ituen.

Dissatisfied with the judgment of the Federal High Court, Ituen approached the Court of Appeal, Calabar and prayed the court to set aside the judgment. He argued amongst others that the trial judge erred in granting the counterclaim.

That the counterclaim contained prayers (reliefs) and conclusions and ought not to have been granted. That the counterclaim was akin to an affidavit and that the law does not allow the making prayers and conclusions in affidavits.

The speaker and the PDP filed their respective briefs and opposed the appeal. They argued inter alia that, a counter affidavit is for the Originating Summons what a Statement of Defence is for the Writ of Summons. That, just as a Counter Claim can be raised in the Statement of Defence filed in response to a Writ of Summons, it can also be raised in a Counter Affidavit filed in response to an Originating Summons. They prayed the Court of Appeal to affirm the judgment of the trial court and dismiss the appeal.

On Friday, the appellate court pronounced its judgement and ruled that the trial judge was right in the verdict declaring the seat vacant.

Ituen has a right of further appeal to the Supreme Court.