Achinike William-Wobodo
“4.7 Any interpretation of the CFRN, 1999 that allows or empowers a Governor or any other elected member of the executive arm of Government under the Constitution to resign membership of the political party that sponsored him, defect to another political party and remain in office would be ultra-varies the constitution and lead to great absurdity. Such an interpretation would give rise to some of the following scenarios:
i. a situation where a political which did not sponsor a candidate would inherit the victory of another political party without the consent of the sponsoring political party, an occurrence which ought only to arise by way of merger;
ii. a situation where a political party which did not canvass for vote at all, or participate in the election where the Governor or Deputy Governor was elected, OR a situation where a political party that was never in existence at the time of the election may become the eventual winner and beneficiary of the election victory, merely by a “wishful and unconstitutional” declaration by a Governor or Deputy Governor that: “I hereby quit my party and I am now in another party”;
iii. a situation where a Governor or Deputy Governor, including a President and Vice President, may gallivant across several parties in a single term;
iv. a situation where the Governor and Deputy Governor, or even the President and the Vice President may be in different political parties at the same time, whilst still sharing and operating a single mandate; Etc.
4.8 I contend with all vehemence, as it does seem to me, that this was never the intendment of the makers of the Nigerian Constitution. This because there is a presumption against the legislature intending what is unreasonable and absurd. See: Awolowo v. Shagari & Ors (1979) LPELR-653(SC). In UWAOKOP V. UBA PLC (2013) LPELR-22622(CA) (Pp. 37-38, para. C-C) the court put it thusly:
“Further, there is a presumption against the legislature intending what is unreasonable and inconvenient in the interpretation of statute. Thus, it is trite that commonsense must be applied in construing statutes and the construction agreeable to justice and reason must be adopted. The position of the law in this respect is well set out in Maxwell on the Interpretation of Statutes, 12 Edition by Langan, 1976 at page 199 thus: “In determining either the general object of the legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles should, in all cases of doubtful significance, be presumed to be the true one. An intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction available.” Thus, where words used in an enactment are open to two interpretations and one construction will lead to an absurdity while the other would give effect to what commonsense shows was obviously intended, the construction that accords with commonsense must be applied.”
4.9 It does appear that those who have indulged themselves in this act hide behind the case of Attorney General of Federation & Ors v. Atiku Abubakar & Ors (2007) LPELR-3(SC) (supra), albeit wrongly, to cover such decree of electoral fraud on both the electorates and the electoral system, and violation and rape of our Constitution. I dare to state and without equivocation that the Supreme Court did not decide in that case that Atiku Abubakar, and by implication a President, Vice President, Governor or Deputy Governor could defect to another political party and retain his office. Although that was not the main issue before the Court of Appeal and Supreme Court in that case, but the decision of the Supreme Court is very instructive on the point.
4.10 Per Akintan JSC in his lead judgement (P.57, para B-E)
“The Court below was therefore wrong in holding that the 1st Respondent could, while the Vice President still retained his office as Vice President, openly criticize the same government; or join another political party and start to campaign for election to the office of President. The action cannot be justified by the fact that he (1st respondent) had been suspended or expelled from the ruling political party under which he was jointly elected with the President or that he was exercising his fundamental right of association guaranteed by the Constitution. What is required of him is to first resign and even after resigning from that office, he would still be precluded from dissociating himself from the collective responsibility for decisions taken by the cabinet while he was in office”. Underlining mine.
4.11 As I had submitted, that case did not empower or decided that the Vice President then could defect from Peoples Democratic Party (PDP) to Action Congress (AC), whilst still retaining his position and office. In fact, the main issue which that case decided was whether the President had the power to declare the office of the Vice President vacant and whether the issue of resignation from office of a Vice President, being an issue of fact, could be presumed having regards to S.306 of the Constitution. Need I remind Governors and their lawyers who rely on the Atiku Abubakar’s case to rape our constitution that a case is authority only for what it decides. Relying on a case without relating it to the facts that induced it will amount to citing the case out of the proper context. The whole purpose of citing, a case is for the law on it to be known. See: PDP V. INEC & ORS (2018) LPELR-44373(SC) (P. 19, paras. A-B)
4.12 It must also be emphasized and put on records, very correctly too, that the Supreme Court held in the Atiku Abubakar’s case above that both the President and Vice President must be of the same party, which by implication applies to a Governor and a Deputy Governor of a State. That case ruled out a situation where, or the possibility that, a Governor and Deputy Governor could be in different political parties, as is now prevalent in our political system. Need I reemphasise that there is no provision in the entire Constitution or any statute from where it could be said expressly or impliedly that it was the intendment of the lawmakers that a Governor or Deputy Governor of a State could defect form the political party that sponsored him, that won the election to another political party, least of all without the consent of the party and then still retains the office as Governor or Deputy Governor. There is also no provision in the Electoral Act, 2010 (as amended) (hereinafter simply referred to as Electoral Act), where this intention could be inferred.”
RE: DEFECTION OF A GOVERNOR: THE PROPER ORDER TO BE MADE
6.0 The Order to be Made
6.1 In circumstances of this nature, ordinarily, the Court would have been urged to make an order setting aside the unconstitutional act (defection of a Governor). Unfortunately, that would be compelling such a Governor to continue to associate with a political party that he has lost interest in and this may give rise to issues around his fundamental right to freedom of association. Thus, a proper order for the courts to make would be one ordering for a bye-election to complete the unexpired term of such a Governor.
6.2 Giving the public shows in the denunciation of their former political party, it becomes evident and easy to prove that the Governors on their own free will withdrew and resigned their membership of the original and sponsoring political party. They were not expelled by their original party. Had the resignation of original party and the subsequent defection to another political party been an act of another person, the Court would have been tempted to declare that null and void and accordingly set same aside, and by implication reinstate the Governor to his position. However, since the resignation by the Governor and the subsequent defection to another political party was on free volition, the act leaves both the Governor and his original political party with an incomplete and inchoate right, which cannot lead to a compete or full remedy. Therefore, the hands of the Court becomes tied from setting aside the act, giving the fact that the Governor has a fundamental right to freedom of association under S.40 of the Constitution, which the Courts are enjoined to protect. To set aside the Governor’s resignation of his membership of his original political party would amount to an interference with his fundamental right to freedom of association, and the Court cannot therefore do so. The Governor cannot be forced against his will to continue to associate with his original party.
6.3 On the other hand, the original political party was also the party voted by the electorates. The original political party accepts the resignation but is still entitled to the electoral victory over the office of Governor and Deputy Governor of the State. As demonstrated earlier, the moment the Governor withdrew and resigned membership of his original political party, he lost and relinquished all rights and privileges that accrued to him by reason of his membership of that political party, including the right to lay claim to the candidature of that political party and its electoral victory. By the provisions of the Constitution that political party, (for instance Article 9.5, sub article (i) and (ii) of the Constitution of the APC, 2014 (as amended), or Article … of the Constitution of the PDP) that Governor or Deputy Governor ceases to be a member of the political party.
6.4 A Governor, having resigned membership of his political party that sponsored him and won the election, is deemed to have resigned his candidature of that political party and for that election. As matter of decency and integrity, he ought to have also resigned his position and office as the Governor or Deputy Governor of the State. Rather than resign, he with his new political party begins to lay legal claim to the position or office of Governor and Deputy Governor, which they never won.
6.5 In a saner democracy, where people and political parties are held accountable, this situation will certainly pose danger and crisis. The question would be, which political party would the electorates hold accountable for the failures or successes of the Governor, the original political party they voted for, or the new political party foisted on them? Secondly, two political parties lay claim to the Governorship. By the singular reason of disputation over the occupancy of the office of the Governor or Deputy Governor of a State, the present composition and foundation of the office of Governor is no longer consistent with the Nigerian Constitution and Electoral laws and is therefore ultra-varies and unconstitutional.
6.6 In such a circumstance, the court should not be called upon to declare the office of the Governor or Deputy Governor vacant by reason of resignation, rather the Court should be invited to declare that present composition and foundation of the office the Governor is unconstitutional, null and void, and accordingly set aside same and make a consequential order for a bye election to be conducted to elect a new Governor and Deputy to complete the unexpired term of the Governor, or directed that the Deputy Governor who did not defect should step in to fill the gap.
6.7 The reason the case of presumption that the Governor is deemed to have resigned his position as Governor should not be pursued is because resignation of a Governor is an issue of fact with established constitutional procedure. A Governor’s registration must be in writing and presented to the Speaker of the House of Assembly and the resignation must be followed by different actions and responsibilities. See: section 306(5) of the Constitution. Thus, whereas a Governor’s resignation of his office as Governor cannot be deemed by reason of S.306(5) of the Constitution [Attorney General of Federation & Ors v. Atiku Abubakar & Ors (2007) LPELR-3(SC)], a Governors resignation of his membership and candidature of a political party could be deemed by the act of defection and public denunciation of the political party.
6.8 A Governor who defected on his own volition removes the legal and legitimate foundation upon which he stands as a Governor and substitutes that with an unconstitutional foundation, and therefore loses his legal and legitimate standing for the office or position, which he thereafter occupies illegally in the eyes of the law. Having also resigned his membership of the only political party that provides him with legitimate standing as Governor, therefore he violates S.177(c) of the Constitution and ceases to be Governor or Deputy Governors [S.180(d) of the Constitution] validly elected in accordance with law.
6.9 This is because it is a constitutional condition precedent that a person cannot be a Governor or Deputy Governor if he is not a member of a political party, and that political party must nominate and sponsor him in that election. See S177(c) of the Constitution. The current political party to which the Governor now belongs did not nominate or sponsor him, contrary to constitution requirements, and he is no longer a member of the political party that sponsored him. Thus, his continuous stay in office as a Governor is an infraction on the Constitution of Nigeria, and therefore no longer a Governor known to the Constitution of the Federal Republic of Nigeria.
6.10 The proper order that a Court should make in a situation where the Governor and the Deputy Governor defect to another political party is one directing the INEC to conduct a bye election to elect a Governor and Deputy Governor for the completion of the unexpired term, in accordance with the provision of the Constitution. See Section 191(2) of the Constitution. However, where only the Governor defects, leaving behind the Deputy Governor, the proper order should be one directing the Deputy Governor to fill the vacancy [Section 191(1) of the Constitution], to restore the supremacy of the Constitution.
6.11 Here are some reasons why this is the appropriate order for a court to make in the circumstance. Firstly, should it be held that the political party that sponsored the Governor won the election and thus has a vested right over its victory, which of course is sound law, then that political party will be left with no candidates to replace the defected Governor and Deputy Governor. This is because whoever the political party will nominate would not have participated in that election and thus cannot be made Governor. See: Section 140(2) of the Electoral Act. In the same vein, the Court cannot compel the Governor who has resigned his membership of his original party to continue to associate with that party. Secondly, should a Court hold that the Governor is the winner of the election (which is not sound law, in my opinion), the Court can neither compel the Governor against his will to continue to associate with his previous party to enjoy the party’s nomination in keeping with the section 177(c) of the Constitution, nor can the Court make a retroactive order to compel INEC and the new political party to nominate the Governor outside the time prescribed by the Electoral Law, to enable the Governor fully the constitutional conditional precedent which entitles him to the position of a Governor.
6.12 It is a critical consideration in our jurisprudence that a Court of law should not, either expressly or impliedly, by action or inaction, endorse self-help or anarchy. Nigerian Politicians are taking advantage, of the obscurity and insufficiency of laws that inhibits independent legal rights of the electorate to challenge electoral malfeasance and improprieties, to perpetuate illegalities and violation of the grund norm (Constitution). The electorates have a right to vote for their Governor through various political parties of choice, and the majority exercise that choice in favour of a particular political party. To deprive them that right and choice, just by one man acting under self-interest, does not augur well for our democracy, morse where it is unconstitutional. The defection of a Governor inflicts serious legal injury on the electorate, and they should not be allowed to suffer without a remedy. Assuming the Constitution did not provide any remedy for the electorates, but the action (defection) of a Governor is established as unconstitutional, as we know it, the Courts should take the bull by the horns and under its inherent powers make orders that would right the wrong done to the electorates. This is the only way the Court can rebuild citizens confidence and prevent a predictable anarchy that looms someday. This submission is based on the legal principle of: ubi jus ibi remedium. Where there is a wrong there is a remedy.
6.13 The Supreme Court adopted this principle in the case of Amaechi v Independent National Electoral Commission (2008) LPELR-446(SC) where it held that:
“As for the order that I ought to make, I must say that this Court has wide jurisdiction to make consequential orders and to grant reliefs which the circumstances and justice of a case dictate. On the principle of ubi jus ibi remedium, if the Court is satisfied that a person has suffered a legal injury, it will surely provide a remedy irrespective of the fact that no remedy is provided either at common law or by status. In Oyekanmi v. N.E.P.A (2000) 15 NWLR (Pt. 690) 414 this Court per Onu J.S.C. said p. 444: “On the principle of “ubi jus ibi remedium” in Bello and 13 Others v. A.-G., Oyo State (1986) 5 NWLR (Pt.45) 828 at 890 this Court per Oputa, J.S.C held that if from the facts available before the Court it is satisfied: (i) that the defendant is under a duty to the plaintiff; (ii) that there was a breach of that duty; (iii) that the defendant suffered legal injury; (iv) that the injury was not too remote, it will surely provide a remedy i.e. create one irrespective of the fact that no remedy is provided either at common law or by status.” In this case, it is an incontestable fact that the 3rd respondent did not comply with Section 34(2) of the Electoral Act, 2006. The law is an equal dispenser of justice and leaves no one without a remedy for his right.”
Per Katsina-Alu, J.S.C (Pp. 96-97, paras. B-A)
6.14 Per Karibi-Whyte, JSC in applying same principle puts it thusly in BELLO & ORS v. AG OYO STATE (1986) LPELR-764(SC)
“I think it is erroneous to assume that the maxim ubi jus ibi remedium is only an English Common Law principle. It is a principle of justice of universal validity couched in Latin and available to all legal systems involved in the impartial administration of justice. It enjoins the courts to provide a remedy whenever the Plaintiff has established a right. The Court obviously cannot do otherwise. It is enjoined to eschew reliance on technicalities in the determination of disputes -see State v. Gwonto & Ors (1983) 1 SCNLR. 142 at p. 160. The substance of the action rather than the form should he the predominating consideration. Appellants have relied on the decision of this Court in Falobi v. Falobi (1976) 1 N.M.L.R. 169. 171 to argue that even if the writ of summons and statement of claim had not specified a particular law under which the action was brought, the Court will give a remedy where the facts as disclosed fall within a remedy recognised in law. I think this is a correct principle deducible from Falobi v. Falobi (supra).” P. 70, paras. A-E )
6.15 Denying and depriving the electorates of their preference for a particular political party, as expressed through their votes, and then the right to subsequently re-elect another Governor and Deputy Governor to complete the unexpired term truncated by the unconstitutional action of one man in the name of defection, will be unjust and unfair, especially where the remedy (bye election) would not occasion any injustice on any of the parties, be it the Governor himself, his original political party, or his new political party. The Governor and both political parties will have the opportunity of canvassing and presenting themselves again to the electorates and the electorates will also have an opportunity of voting a political party of their choice that will govern them for the unexpired term.
This is a call to the relevant stakeholders in the administration of our electoral system, including those in the justice sector, to do everything necessary to abate this kind of electoral fraud. Any politician who feels sufficiently aggrieved with his subsequent treatment by a political party that sponsored him to the office Governor, should either resign his position as governor or wait patiently till the end of his term.
Together, let us strengthen our democracy.”
