Defection: Umahi appeals order to vacate office

Embattled Governor Dave Umahi on Wednesday appealed the judgment of a Federal High Court sitting in Abuja which nullified his defection from the Peoples Democratic Party (PDP) to the All Progressives Congress (APC), and ordered the governor, the deputy governor and others to vacate their seats. The embattled governor in a suit no:  FHC/ABJ/CS/920/2021at the Court of Appeal sitting in Abuja, expressed dissatisfaction with the Judgment of the Federal High Court, Abuja, on March 8, 2022, by Justice Eko Ekwo.

The governor contesting the whole Judgment, argued that the lower court erred in law and misdirected itself when it held:

“I have not seen any authority which propounds that where a Governor or deputy Governor defects his political party on which platform, he was elected to office, he cannot be sued by that political party to reclaim its mandate…Section 308 of the 1999 Constitution did not envisage such a situation”

Counsel to the governor pointed out that the Hon trial court was virtually setting aside the Supreme court of Nigeria’s decision in AG Federation v. Atiku Abubakar & 3 ORS (2007) LCN/3799(SC) to the effect that there are no constitutional provisions prohibiting President or vice and invariably the Governor and or deputy Governor from defecting to another Political Party.

The counsel maintained that the provisions of section 308 are specific notwithstanding anything to the contrary in this Constitution, but subject to subsection (2) of this section, no civil or criminal proceedings shall be instituted or continued against 3rd and 4th Appellants during their mandate in office as Governor and Deputy Governor respectively

He noted that the Respondent’s cause of action at the court below was defection of the Appellants from the PDP on which platform they were voted into office to the APC.

The counsel declared that, “there is no provision of the 1999 Constitution (as amended) that provides for the removal of 3rd and 4th Appellants as sitting Governor and Deputy Governor respectively of Ebonyi State for reason of defection.”

The counsel further argued that the trial court erred in law and misdirected itself when it relied on Sections 68 and 109 of the Constitution of the Federal Republic of Nigeria 1999(as amended) in holding that the Appellants having defected from the PDP to the APC offended the provisions of the Constitution and must vacate their offices as Governor and Deputy Governor, respectively.

The counsel identified particulars of misdirection, arguing that there is no specific mention of Governor and Deputy Governor in the provisions of section 68 and 109 respectively of the 1999 Constitution (as amended)

According to the counsel, “by relying on sections 68 and 109 of the Constitution, the Hon. trial court assumed the role of the legislator and arrogated to itself the powers of amendment of the Constitution.

“There is no provision in the 1999 Constitution (as amended) which state that Governor or deputy Governor will vacate his office if he defects from his political party to another political party.”

The counsel further protested that the lower court erred in law and overruled the decision of the Supreme Court of Nigeria when it held that ownership of votes cast during the Governorship Election of 2019 belongs to the 1st Respondent and not the Appellants.

The counsel pointed out that the trial court relied on AMAECHI v. INEC and FALEKE v. INEC when same are no longer the law on the ownership of votes cast in an election

Ngige v. Akunyile (2012) 15 NWLR Pt.1323-343 (CA) the court held: “the above provisions show that a political party canvasses for votes on behalf of the candidate. In other words, a political party is nothing more than agent of the candidate in gathering votes to an election.”

He also cited: “in INEC vs. Action Congress (2009) 2 NWLR Pt. 1126 – 524 (CA), the Court held: “…the participation of a political party does not exceed campaigning for the candidate….”

The counsel argued that the trial court erred in law when it held that the Appellants are deemed to have been resigned from their Offices as Governor and Deputy Governor of Ebonyi State.

He pointed out that Section 180(1)( c) of the Constitution of the Federal Republic of Nigeria 1999( as amended) never contemplated, implied resignation but resignation signed by the Appellants and tendered to the Speaker of the House of Assembly of Ebonyi State.

He declared that the trial court had no evidence before it of Appellants’ resigning from their Offices.

The governor also protested that the trial court erred in law when it held that the provision of the Public Officers Protection Act cannot avail the Appellants.

He noted that there is no constitutional breach committed by the Appellants as to deny the Appellants of the provisions of the Public Officers Protection Act.

According to the counsel, the reliefs sought by the 1st Respondent are grounded on decisions taken by the Appellants while in their respective Offices as Governor and Deputy Governor of Ebonyi State.

The counsel stated that the trial court erred in law when it restrained the Appellants from carrying on the duties in their offices as Governor and Deputy Governor of Ebonyi State on the basis that the Appellants offended the provisions of sections 177(c) and 221 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

He argued that Section 221 of the Constitution is not to the effect that votes cast during the Governorship election of March 9, 2019 belonged to the 1st Respondent but rather to the Appellants.

Section 177 of the Constitution is all about qualification for a candidate to the Governorship election and has anything to do with punishment for defection.

The governor argued that the Trial Court erred in law when it ordered Appellants to vacate their respective offices as Governor and Deputy Governor of Ebonyi State and 1st Respondent to submit to 2nd Respondent names of its candidates to replace Appellants as Governors and Deputy Governors of Ebonyi State.

He cited that Section. 141 of the Electoral Act 2010 (as amended) states:

“An election tribunal or court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all the stages of the said election.”

Section. 285(13) of the Constitution, reinstated:

“An election tribunal or court shall not declare any person a winner at an election in which such a person has not fully participated in all stages of the elections.”

He also cited, in C.P.C v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66, S,C., 119-120 [F-A] the Supreme Court held:

“By virtue of section 141 of the Electoral Act, 2010 (as amended), an election tribunal or court shall not under any circumstance declare any person winner of an election in which such a person has not fully participated in all the stages of the election. By this provision, the National Assembly has set aside the decision of the Supreme Court in Amaechi vs. I.N.E.C. (2008) 5 NWLR (Pt. 1080) 227.”

The counsel maintained that the trial court erred in law when it not only refused to be persuaded by but rather overruled the decisions of:

High Court of Ebonyi State delivered on 28th Feb 2022 in Suit No. HAB/13/2022 (Sen. Soni Ogbuoji & 2 Ors vs. Engr. David Nweze Umahi & Anor.

Federal High Court sitting in Gusau delivered on 7th Feb 2022 in Suit No. FHC/GS/CS/24/2021.

The counsel argued that the High Court of Ebonyi State decision on defection of Appellants is a decision in rem and applicable at large.

He pointed out that the trial court overruled the decision of the High Court of Ebonyi State on the same subject matter of the alleged defection of the Appellants.

The trial court also overruled the decision of the same Federal High Court in

Bashir Saleh & 2 Ors

Vs.

Alh. Bello Muhammad Matawalle & 4 Ors

which had ruled that Governor of Zamfara State committed no constitutional infraction in his defection from PDP to APC.

The governor, thereafter, sought the following relief:

An Order of the. Court allowing the appeal.

An Order of the Court setting aside the Judgement of the trial court delivered on 8th March 2022 and all orders made therein by the trial court.