Whether Defection of a Governor/Deputy Governor from the Political Party on the Platform of Which They Were Elected Can Be a Ground for Removal from Office

CASE TITLE:                         SENATOR SONI OGBUOJI & ORS v. ENGR DAVID NWEZE UMAHI & ORS (2022) LPELR-57166(CA)

JUDGMENT DATE:           1ST APRIL, 2022

JUSTICES:                            AHMAD OLAREWAJU BELGORE, JCA

JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA

SYBIL ONYEJI NWAKA GBAGI, JCA

PRACTICE AREA:               Electoral Matters- Defection to another Political Party

FACTS:

Engr David Nweze Umahi and Dr Eric Kelechi Igwe (1st and 2nd Respondents) were sponsored for the 2019 governorship election by the People’s Democratic Party (PDP). They won the said election on the platform of the party and were duly returned by the Independent National Electoral Commission. Both of them were subsequently sworn in, upon which they assumed office respectively as Governor and Deputy Governor of Ebonyi State.

Well into their tenure, on the 17th of November 2020, they defected to another political party, the All-Progressives Congress (APC). Aggrieved, the Appellants initiated an action against them in the High Court of Ebonyi State, Abakaliki Judicial Division, wherein they sought, inter alia, an order directing the 1st and 2nd Respondents to forthwith vacate their offices like Governor and Deputy Governor of Ebonyi State respectively, in consequence of their abandonment of the party (PDP) and defection to the APC.

In its considered judgment, the trial High Court found the suit unmeritorious and dismissed the Appellants’ case.

Dissatisfied, the Appellants appealed to the Court of Appeal.

ISSUES:

The appeal was determined upon consideration of the issues thus:

(1) Whether the 1st and 2nd Respondents have vacated or ought to vacate or be removed from their offices as Governor and Deputy Governor of Ebonyi State respectively and replaced with the 1st and 2nd Appellants in consequence of the 1st and 2nd Respondents’ defection to the All-Progressives Congress (APC) from the People’s Democratic Party (PDP), on which platform they contested and won the 2019 governorship election for Ebonyi State?

(2) Whether the 1st and 2nd Respondents, as Governor and Deputy Governor of Ebonyi State could be sued in their personal capacities?

COUNSEL SUBMISSIONS:

Learned Counsel for the Appellants contended that pursuant to the Constitution of the Federal Republic of Nigeria, a candidate can only contest an election on the platform of a political party and that having won on the platform of a political party, any subsequent defection to another party within the tenure would have consequences. That defection of the 1st and 2nd Respondents implied an abandonment of the votes which heralded them into office and rendered the said votes invalid and that they thereby became liable to vacate their offices.

Counsel submitted that votes cast in elections belong to the political parties, as candidates contest on platforms of political parties which canvass votes for them. That office won is accordingly held in trust for the political parties and exclusively for the benefit of the said political parties. That the 1st and 2nd Appellants, as the next set of candidates who participated at all the stages of the 2019 governorship election in Ebonyi State, should be the beneficiaries to take up the places vacated by the 1st and 2nd Respondents.

On the other hand, Learned Counsel for the 1st and 2nd Respondents submitted that the position of the Apex Court that votes scored at elections belonged to the political parties had since been departed from. That the 1st and 2nd Respondents did not defect to another political party as candidates of the sponsoring party but as public office holders whose removal from office must be in accordance with the provisions of the Constitution.

Counsel submitted that Sections 180, 188 and 189 of the Constitution govern vacation of office on cessation of tenure, removal from office and impeachment of the Governor and/or his Deputy. That it is therefore unacceptable to go outside these provisions to seek removal of a Governor and/or his Deputy.

Learned Counsel for the 3rd Respondent argued that the defection of the 1st and 2nd Respondents from the political party which sponsored them for their election to their respective positions as Governor and Deputy Governor of Ebonyi State, has no known statutory or constitutional implication warranting their removal from or vacation of their offices.

That political parties are agents of candidates for the purposes of gathering votes while the candidates are the beneficial owners of votes cast in elections.

DECISION/HELD

In the final analysis, the appeal failed and was dismissed.

RATIOS:

1. CONSTITUTIONAL LAW- REMOVAL OF GOVERNOR/DEPUTY GOVERNOR:

Whether defection of the person(s) from the political party on the platform of which they were elected can be a ground for the removal of a Governor/Deputy governor from office

“The removal of the 1st and 2nd Respondents as provided for in the Constitution must be in the circumstances contained in Sections 180, 188 and 189 of the Constitution. Defection from the political party on the platform of which they were elected was not stated as one of the grounds and cannot be made a ground for their removal by the Courts pursuant to the extant legal principle of expressio unius est exclusio alterius. See EHUWA VS ONDO STATE INDEPENDENT ELECTORAL COMMISSION (2006) LPELR-1056 (SC), UDOH & ORS VS ORTHOPAEDIC HOSPITAL MANAGEMENT BOARD & ANOR (1993)” LPELR-3308 (SC), SHINKAFI & ANOR VS YARI & ORS (2016) LPELR-26050 (SC) and PORTS AND CARGO HANDLINGS SERVICES CO LTD & ORS VS. MIGFO (NIG) LTD & ANOR (2012) LPELR-9725(SC).” Per OYEWOLE, J.C.A.

• ELECTORAL MATTERS- DEFECTION TO ANOTHER POLITICAL PARTY: Position of the law as regards the defection of members of the legislature; whether it is applicable to holders of the executive offices of President, Vice President, Governor and Deputy Governor

“The defection of an elected executive office holder is not novel to our jurisprudence as it formed the consideration of the Supreme Court in the case of A.G. FEDERATION & ORS VS ABUBAKAR & ORS (supra). In that case, the 1st Respondent Atiku Abubakar who had been elected Vice President alongside President Olusegun Obasanjo on the platform of the PDP defected to another political party, the Action Congress. His action drew the ire of his principal and strained their relationship to the extent that his continued occupation of the office of Vice President became subject to litigation. I do agree with the learned trial Judge that the principles laid down in the said case of A.G. FEDERATION & ORS VS ABUBAKAR & ORS (supra) are applicable to the facts and circumstances of this case. It must be stated clearly that issues of votes are necessary for the determination of the winners of elections and the popularity of political platforms. However, once the final determination has been made by the Returning Officer and subsequently by the appropriate tribunal and Courts, where the outcome of the election was challenged, the elected officeholder assumes their office and their removal must be in accordance with the provisions of the Constitution. Defection from one party to another may appear immoral or even improper but as well submitted for the Respondents, it must be acknowledged that membership of political parties is an exercise of the freedom of association guaranteed by Section 40 of the Constitution but like every exercise of rights, it comes with attendant consequences. Where a member of the legislature defects from the party on whose platform he was elected without showing that the party he left had suffered a division, the cognizance for him is to vacate his seat as provided in Sections 68 (1) (g) and 109 (1) (g) for the Federal and State legislature respectively otherwise his seat will be declared vacant. See ABEGUNDE VS. ONDO STATE HOUSE OF ASSEMBLY & ORS (2015) provisions accord with the natural workings of the legislature where political party lines hold sway. The situation is different with regards to holders of the executive offices of President, Vice President, Governor and Deputy Governor as the provisions for their removal do not include where such office holders defect from the political party under whose platform they were elected into office. Mr. Okorie did concede much in his brief that unlike the situation with elected members of the legislature, there are no express constitutional provisions relating to the defection of elected executive officeholders of the offices of President, Vice President, Governor and Deputy Governor. He however invited the Court to fill the lacuna by extrapolating the consequences for elected members of the legislature and to accordingly order the 1st and 2nd Respondents to vacate their offices. The learned trial Judge must be commended for rejecting this invitation which would have done incalculable damage to the rule of law and constitutionalism. Judicial activism must be guided by the rule of law otherwise it will degenerate to judicial rascality.” Per OYEWOLE, J.C.A.