A Court of Appeal sitting in Calabar, Cross River State has upheld the decision of the trial court and ruled that Justice F. O. Riman of Federal High Court 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.
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Hon. Justice Mojeed Adekunle Owoade, JCA, made this judgment on Friday in a suit: Appeal No. CA/C/474/2018 brought by the former PDP lawmaker, Hon. Idongesit Ituen against Speaker, Akwa Ibom House of Assembly & 3 Others.
Justice Owoade, while delivering the judgment held that the appeal against the said judgment is without merit and therefore dismissed.
TheNigerialawyer recalls that on or about October 2017, Hon. Idongesit Ituen who represented Itu State Constituency in the Akwa Ibom State House of Assembly defected from the PDP to the APC before the expiration of the 4-year tenure for which he was elected.
Meanwhile, he had filed a suit at the Federal High Court to restrain the Speaker of the AKSHA from declaring his seat vacant.
In the suit which 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.
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 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.
Furthermore, the court upheld the counterclaim and declared amongst others that the seat became vacant by operation of law the moment Hon. Idongesit Ituen defected from the political party that sponsored him to another political party and also made an injunction restraining the then Speaker from further giving recognition to Hon. Idongesit Ituen.
Dissatisfied with the Judgment of the Federal High Court, Hon. Idongesit 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, contending that the counterclaim contained prayers (reliefs) and conclusions and that it ought not to have been granted.
In addition, he argued that the counterclaim was akin to an affidavit and that the law does not allow the making of 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. Also, that just as a counterclaim 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.
Thus, they prayed the Court of Appeal to affirm the judgment of the trial court and dismiss the appeal.
Eventually, having listened to the pith and substance of the appeal, the Court of Appeal affirmed the decision of the trial Judge and declared the seat vacant.
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