May 19, 2022

Defection of Governor/Deputy Governor from one political party to another

Before the Federal High Court of Nigeria

In Abuja Judicial Division

Holden in Abuja

Tuesday, March 8, 2022

Before His Lordship

Inyang E. Ekwo J.

Judge, Federal High Court

FHC/ABJ/CS/920/2021

Included between

People’s Democratic Party (PDP) Complainant

And

1. Independent National Electoral Commission (INEC)

2. All Progressive Congress (APC)

3. Engineer David Nweze Umahi

4. Dr. Eric Kelechi Igwe Accused

(Judgment rendered by Honorable Inyang E. Ekwo J.)

Facts

Plaintiff and 2nd Respondent are duly registered political parties in Nigeria, while 1st Respondent is a statutory body charged with the conduct, supervision and general oversight of elections throughout Nigeria. The 3rd and 4th defendants are politicians and were members of the plaintiff. In the Governor’s Election held in 2015 and led by the 1st Respondent, the Claimant sponsored the 3rd and 4th Respondents as candidates for Governor and Deputy Governor of Ebonyi State. The 3rd and 4th defendants won the election overwhelmingly under the political auspices of the plaintiff. Subsequently, the 3rd and 4th defendants were sworn in at their respective offices. In exercising their constitutional right to stand for a second term as Governor and Deputy Governor of Ebonyi State, respectively, they implored the applicant to endorse, appoint and sponsor them as candidates for the 2019 gubernatorial election to which the applicant joined.

At the end of the election held on March 9, 2019, the plaintiff garnered a total of 393,043 votes, defeating the 2nd respondent who managed to garner a total of 81,703 votes. After receiving a majority of the legitimate votes cast, the plaintiff was declared the winner and its candidates; the 3rd and 4th Respondents were elected Governor and Deputy Governor of Ebonyi State respectively; as a result, they were issued with return certificates. They were duly sworn in these offices on May 29, 2019 and their second four-year term which is due to end on May 28, 2023. However, on November 17, 2020, while their terms were still ongoing, the 3rd and 4th defendants renounced membership. of the plaintiff and defected to the 2nd defendant.

Plaintiff repeatedly asked the 3rd and 4th Defendants to relinquish Plaintiff’s mandate obtained in the 2019 gubernatorial election and resign from their respective positions, but this was not accepted. Injured by the foregoing, the plaintiff brought this action by summons, seeking various declarations and perpetual injunctions against the defendants. Among the remedies sought by the plaintiff is a statement that votes cast in an election by one political party cannot be transferred or used for the benefit of another political party or a member of another political party. .

Various objections were raised by the 2nd defendant on the one hand, and the 3rd and 4th defendants on the other hand. The objections relate to the legal personality of the 2nd defendant; abuse of legal process; the incompetence of the originating summons which was not signed by the clerk of the court; the Federal High Court has no jurisdiction to adjudicate on the suit as it does not fall under any of the sub-provisions of Section 251 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); and the 3rd and 4th defendants cannot be validly sued in their personal capacity, because they enjoy immunity against such acts. These preliminary objections have been duly considered by the Court and have been found unfounded by the Court.

Question to be determined

The only following question was considered by the court:

What is the constitutional effect of the defection of the 3rd and 4th defendants from the PDP to the APC, having been elected respectively Governor and Deputy Governor of Ebonyi State on the Plaintiff’s Platform by the votes given to the Plaintiff by the electorate in the gubernatorial election? of March 9, 2019.

arguments

On the issue, counsel for the claimant argued that under Section 221 of the 1999 Constitution (as amended), only a political party can solicit votes for any candidate at any any election. Votes cast on March 9, 2019 in which the Plaintiff questioned the majority of the votes cast to defeat the 2nd Defendant who came a distant second belongs to him (the Plaintiff) and the 3rd and 4th Defendants cannot transfer the votes to the 2nd Defendant , in order to remain Governor and Deputy Governor on the 2nd Defendant’s platform. We relied on NDAYAKO against DANTORO & ORS (2004) LPELR-1968 (SC) at 24. Plaintiff’s counsel also argued that under the doctrine of grandfathering, the 3rd and 4th defendants cannot, by their own defection action, arbitrarily deprive plaintiff of his grandfather. It was argued that the 3rd and 4th defendants are deemed to have resigned from office, at the time they gave up the majority of legal votes cast in favor of the plaintiff in the election. Reference was made to Section 180(1)(c) and (d) of the 1999 Constitution as (amended) and AMAECHI vs. INEC 5 NWLR (Pt. 1080).

Defendants simply relied heavily on their Preliminary Objection to argue that the Court lacked jurisdiction, as the originating summons was issued and served on the 3rd and 4th Defendants in violation of Article 308(1 )(a)(b) and (c); (2) and (3) of the 1999 Constitution which grants immunity from prosecution to said defendants being the current Governor and Deputy Governor of Ebonyi State. The lawyer argued for the 2nd defendant that his name as the 2nd defendant sued is a non-corporate person, and therefore the name is subject to deletion. Subsequently, the lawyer argued that the complaint should have been filed with the Ebonyi State Governorate Electoral Court being a post-election matter. This was also their argument and also argued that the introductory proceedings were commenced contrary to the provision of Order 3, Rule 9(2) of the Federal High Court, Rules of Civil Procedure, as no affidavit of no multiplicity of action on the same subject was attached, nor did the Registrar seal the originating summons, rendering it incurably bad and defective. We relied on IGIRIGA vs. BASSEY & ORS (2013) LPELR-20346(CA). Counsel for the 2nd defendant further argued that the wrong mode of commencing an action was used in this case, as the originating summons is used when the action seeks the interpretation of law or document and not for contentious issues. We relied on EZEIGWE vs NWALULU (2010) 4 NWLR (Pt.1183) 169 to 191. In addition, counsel for the 2nd defendant argued that despite the fact that the 1st defendant, a federal government agent, was added as a party to the lawsuit, the primary remedies sought by the plaintiff were directed against the 3rd and 4th Defendants, and as such Plaintiff’s claims do not fall within Section 251(1)(a)-(s) of the 1999 Constitution.

For their part, counsel for the 3rd and 4th defendants argued that the 1999 Constitution grants no power to the court to grant the remedies sought by the plaintiff, as it is an invitation for the court to usurp the powers of the legislature due to the fact that the 1999 Constitution succinctly provided the procedure for the election and removal of a sitting Governor in Nigeria. They relied on sections 188, 189 and 190 of the 1999 Constitution. They challenged the guts of the plaintiff and argued that the present lawsuit amounted to an abuse of process because a similar lawsuit on the same subject had was filed earlier. We relied on AG LAGOS STATE v AG FEDERATION & ORS (2014) LPELR-22701(SC). Counsel posited that the action against the 3rd and 4th defendants is a lapsed claim, having been brought outside the statutory time limit for bringing an action against the officials. Reference was made to section 2(a) of the Public Officers Protection Act. Subsequently, counsel for the respondents argued that the plaintiff’s originating summons, including all exhibits, was incompetent and invalid.

Judgment and justification of the Court

Deciding on the issue alone, the court found that the assertions of the 3rd and 4th defendants in their counter-affidavit were insufficient to effectively challenge or contradict the plaintiff’s merits case. The court relied on MAERSK LINE v ADDIDE INVESTMENTS LTD (2002) 7 SC (Pt. 11) 112 in support of his position that assertions contained in an affidavit can only be contradicted by a counter-affidavit; it is not enough to bring the plaintiff to the strictest proof of its assertions.

With respect to the argument over the immunity enjoyed by the 3rd and 4th defendants under Section 308(1)(a) of the 1999 Constitution, the court held that the “immunity clause” is not absolute because the criminal and civil proceedings provided for in Article 308 of it are the cases where the cause of action is still enforceable after the performance of its functions. Applying this, the court noted that the cause of action and remedy in this case could not wait for the 3rd and 4th defendants to leave office; considering that article 308 of the 1999 Constitution is a “true constitutional shield”, not included for political reasons. His Lordship further contended that where the act of a Governor and/or Deputy Governor amounts to a violation of the provisions of the Constitution or creates a constitutional question which requires the interpretation or application of the Constitution, the action may be founded . To say otherwise would be to elevate a person or group of people to a status above or above the Constitution.

Following the defection of the 3rd and 4th defendants of the plaintiff to the 2nd defendant, the court held that The election is won on the ballots, and constitutionally the ballots are sacrosanct and are awarded to the political party; votes in any election are votes for the political party for which the electorate voted. There is no constitutional provision that makes the ballot transferable from one political party to another. When the electorate expresses their confidence in an election by giving their votes to a political party, there is no political scheming or manipulation that would be allowed to alter the will of the electorate..

The court further held that a party cannot win an election by poaching candidates from the party that actually won an election. Similarly, a person who has won an election on the platform of a political party and has held office under it cannot, by an act of defection, cause a party that loses an election becomes the ruling party. Based on the above principles, the court held that the 3rd and 4th defendants cannot transfer the voter mandate given to the plaintiff who sponsored them in the election to another party. The position belongs to the applicant who obtains the majority of the legitimate votes cast during the election.

The plaintiff’s case was successful on the merits.

Representation

JB Daudu, SAN with EC Ukala, SAN, SI Ameh, SAN, Ferdinard Orbih, SAN, Ogwu James Onoja, SAN, MA Ebute, SAN, MM. OJ Iheko, Adedayo Adedipe, Z. Akubo, RO Mohammed and Louange Ahiaba for the applicant.

Titilayo Precious Soje, Esq. for the 2nd defendant.

Chukwuma-Machukwu Ume, SAN with MM. GA Okereke and Jerome T. Mukang for the 3rd and 4th defendants.

Reported by Optimum Publishers Limited, Publishers of Nigerian Monthly Legal Reports (NMLR) (A subsidiary of Babalakin & Co.)