THE SACK OF EBONYI STATE GOVERNOR AND DEPUTY GOVERNOR BY THE COURT IS VICTORY FOR DEMOCRACY AND CONSTITUTIONAL LAW; AN ENDORSEMENT OF MY LEGAL VIEW.

Achinike Wobodo

Being a member of the All Progressives Congress (APC), I may be accused of anti party, but do not be too quick in judgment. In 2018, when Governors of Benue, Sokoto and Kwara states defected from APC to Peoples Democratic Party (PDP), I personally wrote to and sought audience with APC Leadership then, and requested that they take up legal action against the said governors on the ground that their defection was unconstitutional and illegal. Unfortunately APC failed or refused to do so.
Based on public interest litigation, I proceed to Federal High Court against the three Governors, mandated by an NGO, since we could not raised all the voters in each of the states for that purpose. The Three Governors were very much agitated and had no meaningful defence or response to my arguments. It was so bad that one SAN (name withheld) in one of the matters thought I was being sponsored by some “big man” in APC and asked to go appeal to the big man on his client’s behalf. It turned out that I was on my own. Then, they found the loophole in our case and raised Preliminary Objection, that the NGO did not have locus to sue. I knew the preliminary objection was strong and valid; the NGO was neither the political party that won the election, nor was it a human being who voted the governors in those elections. Not even our claim that the NGO was representing thousands of its members who voted at those elections was convincing enough to me as the claimants lawyer. We pushed on, hoping that the cases would get to the Appellate Courts.

See: Suit Nos: FHC/ABJ/CS/901/2018; FHC/ABJ/CS/943/2018; FHC/ABJ/CS/940/2018 between INCORPORATED TRUSTEES OF ADVOCACY FOR CHANGE AND SOCIAL VALUES NETWORK VS INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS at the Federal High Court siting at Abuja.

After evaluation of the preliminary objection (PO), I prevailed on the Federal High Court to give judgment in the main suit as well as the PO, so that the Court of Appeal and Supreme Court may have the opportunity of pronouncing on the legality of a defection by a Governor. Unfortunately, too much pressure from the PDP side, the Federal High Court delivered Ruling on the PO alone. There was no basis for proceeding on such appeal, it would have been waste of judicial time to appeal against the decision on the locus of the NGO to bring the suit. And those governors got away with that. I knew and prayed that a day will come when my arguments will be upheld in the interest of our democracy and Constitution.
In the Umahi’s case, the PDP brought the action as the winner of the election, assuming and asserting the right which the APC refused to assert in 2018. Interestingly, the PDP repeated over 85% of my arguments and position in the said cases against Governor Otom, Tambuwal and Ahmed, then Governor of Kwara State. As usual with our clime, no reference was made by the PDP to those cases or to the original source of the arguments. Albeit, today, judgment has been delivered against Umahi and his deputy.
As saddening as it might be for me as a member of the APC, I think the judgment is in line with the spirit and letters of our Constitution. Unlike the legislators, there is no room in our Constitution for a governor elected under a political party to defect from the political party that canvassed for votes and won the election to another political party that neither canvassed votes for him nor won the election, and then still retains the position. That is an absurdity.
That is the highest form of electoral fraud against the system and the electorates. As I posited in my arguments in those cases, If that is allowed to continue, one day you will have a situation where a political party which was not in existence at the time of an election (registered after an election) would end up becoming the beneficiary of an election it did not participate in OR a party rejected by the electorates in the polls may end up returning surreptitiously to power simply by wooing the President or a Governor, while the electorates remain helpless. That is not the intendment of our Constitution.
All the arguments being made by those who support defrauding the electorates of their choice of political party and the rape our Constitution is the illogical reference and reliance on the case of A.G Federation & Ors vs Atiku Abubakar & Ors (2007) LPELR-3(SC); and that there is no express provision that forbids a governor from defection in our Constitution, yet they all acknowledge that there is an express provision in same Constitution that allows a legislator to do so.
I wonder if they think or assume that the omission was due to forgetfulness on the part of the lawmakers. No, it was not. It is not intended for a Governor to defect from one political party to another and still retain his position. The makers of Constitution made provision for the circumstances under which a legislator may defect to another political and still retains his office or position. The supporters of “a Governor can defect arguments” fail to consider the principle of constitutional interpretation, that say: expressio unis exclusio alterius (meaning- the express mention of one thing excludes any other which otherwise would have applied by implication with regards to the same issue but was not mentioned. See: Ehuwa v. Ondo State Independent Electoral Commission & Ors (2006) LPELR-1050 (SC), pg 20-21.
Our jurisprudence is settled that a case is only an authority for what it decides, which is based on the issues submitted to the Court for adjudication. AGF vs Atiku Abubakar, relied upon by the proponents of a Governor’s defection, NEVER empowered or decided that the President, Vice President, a Governor or a Deputy Governor could defect from one political party and still retain his position. That was not the issue before the court in that case. The main issue before the Supreme Court in that case was whether the Vice President then (Atiku Abubakar) could be DEEMED TO HAVE RESIGNED HIS POSITION AS VICE PRESIDENT, having regards to section 306 of the Constitution, 1999. The Supreme Court decided that because of the active steps and actions required to be taken by such an officer who is resigning and the Senate President, the Vice President could not have been deemed to have resigned his office. His resignation must be positive and intentional. That case did not decide that the Vice President could defect or any Governor for that matter.
Unfortunately, they pick and chose which part of that case to read or rely upon. They fail to also read or cite the views of Per Akintan, JSC who read the lead judgment when he held:
“The Court below was therefore wrong in holding that the 1st Respondents could, while the Vice President still retained his office as Vice President openly criticise 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 RESIGNED AND EVEN AFTER RESIGNING FROM OFFICE, he would still be precluded from dissociating himself from the collective responsibility for decisions taken by the cabinet while he was in office.” (Capitalisation is mine for emphasis)
The combination of sections 177(c), 221 of the Constitution, and as well as the decision of the Supreme Court in Amaechi vs INEC (2008) LPELR-446(SC) is to effect that it is a political party, not a candidate that wins an election. The questions which must be answered are: (1) Can a person (candidate) transfer the election victory of one political party to another political party without the consent of the political party that won that election? 2) Is an election victory severable, can it be divided between the candidate and the political party? 3) Has the political party a vested right in such election victory? 4) Can such vested right be divested of the political party that won an election by a mere wishful statement of one man (candidate) who say: “I am no longer a member of XYZ party? Etc.
S.97 of the Electoral Act 2011 (as amended) gives insight as to the enormity of the right of a political party over election victory and the non-transferability of such victory, where it provided that, even when a political party ceases to be in existence in accordance with the Constitution and Electoral Act, a person elected under such defunct political party will continue to be regarded as a member of that defunct political party until he serves out his tenure of office.
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 the 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.
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 for that election, contrary to constitutional 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.
My arguments in those cases were comprehensive, and PDP copied them copiously without any reference to me. That is a matter for another day.

MY DISAGREEMENT WITH THE ORDER MADE BY THE FEDERAL HIGH COURT IN UMAHI’S CASE.

In agreeing with the decision of FHC, however, I must express my reservations and vehemently disagree with the ORDER made by the FHC to the effect that PDP should submit other names to INEC for declaration as governor and deputy governor. That order itself, to my understanding of the law, is neither supported by the Constitution nor the Electoral Act 2011 (as amended), the applicable law for that election.

EXCERPTS OF OUR ARGUMENTS IN THOSE CASES IN RESPECT TO THE PROPER ORDER TO BE MADE

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 of his fundamental right to freedom of association.
Again, the Governors resigned membership of their original political party on their own volition. They were not expelled by their original party. Had they been expelled or removed by an act of another persons (their former party), the Court would have been called upon to declare such an act null and void, 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 properly enforceable claim or compete 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. The Governor cannot be forced against his will to continue to associate with his original party.
On the other hand, the original political party was also the party voted by the electorates. The original political party having accepted the resignation is still entitled to the electoral victory over the office of Governor and Deputy Governor of the State.
Therefore the most appropriate or 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], and thereafter he may nominate a person to be confirmed by the House of Assembly as Deputy Governor. This is to restore the supremacy of the Constitution.
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 the election 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 whomever 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 2011 (as amended).
Secondly, should the 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 in order to continue to enjoy the party’s nomination in keeping with the section 177(c) of the Constitution, nor can the Court make an order with a retroactive effect to compel the new political party to renominate the Governor and also compel INEC to accept retroactively such nominations, in violation of the requirements under the Electoral Act that the name of a candidate for an election ought to be submitted not later that 180days before the date fixed for that election. The Governor cannot also fulfil the constitutional conditional precedent that will entitle him to the position of a Governor under his new political party, without a by-election.
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 electorates to challenge electoral malfeasance and improprieties, to perpetuate illegalities and violation of our grund norm (Constitution). The electorates have a right to vote 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, more so where it is unconstitutional.
The defection of a Governor inflicts serious legal injury on the electorates, and they should not be allowed to suffer without a remedy. Assuming the Constitution does 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.
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)
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 )
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. Maybe, they may even re-elect the Governor and his new party, but that right must not be taken away from the electorates.
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. Our most humble submissions

Achinike William-Wobodo
Lawyer; he initiated the Advocacy on Unconstitutionality and Illegality of Governor’s Defection to another political party whilst still retaining his position.