Judgement: Defection Of Governor/Deputy Governor From One Political Party To Another

In the Federal High Court of Nigeria

In the Abuja Judicial Division

Holden at Abuja

On Tuesday, the 8th day of March, 2022

Before His Lordship

Inyang E. Ekwo J.

Judge, Federal High Court

FHC/ABJ/CS/920/2021

Between

Peoples Democratic Party (PDP) Plaintiff

And

1. Independent National Electoral Commission (INEC)

2. All Progressive Congress (APC)

3. Engineer David Nweze Umahi

4. Dr. Eric Kelechi Igwe Defendants

(Judgement delivered by Honourable Inyang E. Ekwo J.)

Facts

The Plaintiff and the 2nd Defendant are political parties duly registered in Nigeria, while the 1st Defendant is a statutory body saddled with the conduct, supervision and overall superintendence of elections all over Nigeria. The 3rd and 4th Defendants are politicians and were members of the Plaintiff. In the Governorship election held in 2015 and conducted by the 1st Defendant, the Plaintiff sponsored the 3rd and 4th Defendants as its candidates for the position of Governor and Deputy-Governor of Ebonyi State. The 3rd and 4th Defendant won the election overwhelmingly under the political umbrella of the Plaintiff. Thereafter, the 3rd and 4th Defendant were sworn into their respective offices. In exercising their constitutional right to run for a second term in office as Governor and Deputy-Governor of Ebonyi State respectively, they implored the Plaintiff to endorse, nominate and sponsor them as its candidates for the 2019 Governorship election which the Plaintiff acceded to.

At the end of the election held on March 9, 2019, the Plaintiff polled a total of 393,043 of the votes defeating the 2nd Defendant who managed to amass a total of 81,703 votes. Having polled majority of the lawful votes cast, the Plaintiff was declared the winner and its candidates; the 3rd and 4th Defendant were returned elected as Governor and Deputy-Governor of Ebonyi State respectively; they were accordingly, issued with certificates of return. They were duly sworn into those offices on May 29, 2019 and their second four year tenure which is to end on May 28, 2023. However, on November 17, 2020 whilst their tenure was still running, the 3rd and 4th Defendant relinquished the membership of the Plaintiff and defected to the 2nd Defendant.

The Plaintiff made several demands to the 3rd and 4th Defendant to drop the Plaintiff’s mandate secured at the 2019 Governorship election and step down from their respective positions, but same was not acceded to. Aggrieved by the foregoing, the Plaintiff instituted this action vide an Originating Summons, seeking various declarations and perpetual injunctions against the Defendants. Notable among the reliefs sought by the Plaintiff is a Declaration that votes won at an election by a political party cannot be transferred or utilised for the benefit of another political party or member of another political party.

Various objections were raised by the 2nd Defendant on one hand, and the 3rd and 4th Defendant on the other hand. The objections bother on juristic personality of the 2nd Defendant; abuse of court processes; incompetence of the Originating Summons which was not signed by the Registrar of court; the Federal High Court lacking jurisdiction to determine the suit as same does not come 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 Defendant cannot be validly sued in the personal capacities, as they enjoy immunity from such acts. These Preliminary Objections were duly considered by the Court and same was judged unmeritorious by the court.

Issue for Determination

The following sole issue was considered by the court:

What is the constitutional effect of the defection of the 3rd and 4th Defendant from PDP to APC, having been elected Governor and Deputy-Governor respectively of Ebonyi State on the platform of the Plaintiff by the votes given to the Plaintiff by electorate in the governorship election of 9th March, 2019.

Arguments

On the issue, counsel for the Plaintiff argued that by virtue of Section 221 of the 1999 Constitution (as amended), only a political party can canvass for votes for any candidate at any election. Votes cast on March 9, 2019 wherein the Plaintiff polled the majority votes cast to defeat the 2nd Defendant which came far second belongs to it (the Plaintiff) and the 3rd and 4th Defendant cannot transfer the votes to the 2nd Defendant, so as to remain the Governor and Deputy-Governor on the platform of the 2nd Defendant. Reliance was placed on NDAYAKO v DANTORO & ORS (2004) LPELR-1968 (SC) at 24. Counsel for the Plaintiff also argued that by virtue of the doctrine for acquired or vested rights, the 3rd and 4th Defendant cannot by their own action of defection arbitrarily strip the Plaintiff off its vested right. It was argued that the 3rd and 4th Defendant are deemed to have resigned from their offices, the moment they abandoned the majority of the lawful votes casted for the Plaintiff at the election. Reliance was placed on Section 180(1)(c) and (d) of the 1999 Constitution as (amended) and AMAECHI v INEC 5 NWLR (Pt. 1080).

The Defendants merely relied extensively on their Preliminary Objection to argue that the Court lacks jurisdiction, as the originating summons was issued and served on the 3rd and 4th Defendant in breach of Section 308(1)(a)(b) and (c); (2) and (3) of the 1999 Constitution which confers immunity from being sued on the said Defendants being the current/serving Governor and Deputy-Governor of Ebonyi State. Counsel submitted for the 2nd Respondent that its name of the 2nd Defendant as sued is a non-juristic person, and the name is therefore liable to be struck out. Thereafter, counsel argued that the suit ought to have been filed at the Ebonyi State Governorship Election Tribunal being a post-election matter. It was also their submission and also argued that the originating process was brought contrary to the provision of Order 3 Rule 9(2) of the Federal High Court, Civil Procedure Rules as no Affidavit of Non-Multiplicity of Action on the same subject-matter was attached, neither did the Registrar seal the Originating Summons, making same incurably bad and defective. Reliance was placed on IGIRIGA v BASSEY & ORS (2013) LPELR-20346(CA). Counsel for the 2nd Defendant further argued that the wrong mode for commencement of an action was used in this present case, as Originating Summons is used where the action seeks the interpretation of statute or document and not for contentious matters. Reliance was placed on EZEIGWE v NWALULU (2010) 4 NWLR (Pt.1183) 169 at 191. Also, counsel for the 2nd Defendant argued that despite the fact that 1st Defendant, an agent of the Federal Government was added as a party to the suit, the main/principal reliefs sought by the Plaintiff were directed against the 3rd and 4th Defendant, and as such, the Plaintiff’s complaints do not fall within the purport of Section 251(1)(a)-(s) of the 1999 Constitution.

On their part, counsel for the 3rd and 4th Defendants argued that the 1999 Constitution does not bestow any power on the court to grant the reliefs sought by the Plaintiff, as same is an invitation for the court to usurp the powers of the legislative body owing to the fact that the 1999 Constitution has succinctly provided for the procedure for the election and removal of a sitting Governor in Nigeria. Reliance was placed on Sections 188, 189 and 190 of the 1999 Constitution. They challenged the guts of the Plaintiff, and submitted that the present suit is tantamount to an abuse of court process, as a similar suit on the same subject+matter had been filed earlier. Reliance was placed on A-G LAGOS STATE v A-G FEDERATION & ORS (2014) LPELR-22701(SC). Counsel posited that the action against the 3rd and 4th Defendant is a stale claim, having been brought outside the statutory time provided for commencing an action against Public Officers. Reliance was placed on Section 2(a) of the Public Officers Protection Act. Thereafter, counsel for the Respondents maintained that the Plaintiff’s Originating Summons, inclusive of all exhibits, was incompetent and invalid.

Court’s Judgement and Rationale

Deciding the sole issue, the court held that the averments of the 3rd and 4th Defendant in their Counter-Affidavit, were insufficient to effectively challenge or controvert the substantive case of the Plaintiff. The court relied on MAERSK LINE v ADDIDE INVESTMENTS LTD (2002) 7 SC (Pt. 11) 112 in support of its position that averments in an affidavit can only be controverted by a counter-affidavit; it is not sufficient to put the Plaintiff to the strictest proof of its averments.

Regarding the submission on the immunity enjoyed by the 3rd and 4th Defendant under Section 308(1)(a) of the 1999 Constitution, the court held that the “immunity clause” is not absolute as the criminal and civil proceedings envisaged in Section 308 thereof, are those cases where the cause of action is still enforceable after the tenure in office. Applying this, the court noted that the cause of action and remedy in this present case could not wait till the 3rd and 4th Defendant leave office; holding that Section 308 of the 1999 Constitution is a “veritable constitutional shield”, not inserted for political reasons. His Lordship held further that where the act of a Governor and/or Deputy Governor amounts to an infringement of the provisions of the Constitution or creates a constitutional issue which requires the interpretation or enforcement of the Constitution, the action can lie. To hold otherwise, would be tantamount to having a person or group of persons elevated to a status greater or above the Constitution.

On the effect of the defection of the 3rd and 4th Defendant from the Plaintiff to the 2nd Defendant, the court held that Election is won on the ballots, and constitutionally, ballots are sacrosanct and are ascribed to the political party; the votes in any election are votes for the political party to whom the electorate voted. There is no constitutional provision, that makes the ballot transferrable from one political party to another. Where the electorate express their trust in an election by giving their votes to a political party, there is no political machination or manipulation that would be allowed to short-change the will of the electorate.

The court held further that a party cannot win an election by poaching the candidates of the party that actually won an election. In the same vein, a person who won an election on the platform of a political party and occupied an office by virtue of that, cannot by an act of defection make a party that lost an election become the party in power. Relying on the above principles, the court held that the 3rd and 4th Defendants cannot transfer the voter’s mandate given to the Plaintiff which sponsored them in the election to another party. The office belongs to the Plaintiff who had the majority of the lawful votes cast t the election.

Plaintiff’s case succeeded on the merit.

Representation

J.B. Daudu, SAN with E.C. Ukala, SAN, S.I Ameh, SAN, Ferdinard Orbih, SAN, Ogwu James Onoja, SAN, M.A. Ebute, SAN, Messrs O.J Iheko, Adedayo Adedipe, Z. Akubo, R.O Mohammed and Praise Ahiaba for the Plaintiff.

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

Chukwuma-Machukwu Ume, SAN with Messrs G.A. Okereke and Jerome T. Mukang for the 3rd and 4th Defendant.