Defection of Governor/Deputy Governor from One Political Party to Another: Effect

In the Court of Appeal of Nigeria
In the Enugu Judicial Division
Holden at Enugu
On Friday, 1st day of April, 2022

Before Their Lordships
Ahmad O. Belgore
Joseph Olubunmi K. Oyewole
Sybil Nwaka-Gbagi
Justices, Court of Appeal

CA/E/53/2022

Between

1.   Senator Soni Ogbuoji
2.  Justin Mgbam Ogodo
3.  All Progressives Congress … … Appellants

And

1.   Engineer David Nweze Umahi
2.  Dr. Eric Kelechi Igwe
3.  Attorney-General of Ebonyi State … …  Respondents

 (Lead Judgement delivered by Honourable Joseph Olubunmi Kayode Oyewole, JCA)Facts
At the 2019 general elections, the 1st and 2nd Appellant contested the gubernatorial election for Ebonyi State on the platform of All Progressive Congress (APC) while the 1st and 2nd Respondent contested for the same position on the platform of Peoples Democratic Party (PDP). The 1st and 2nd Respondent emerged winners at the election as the Governor and Deputy Governor of Ebonyi State, having polled the highest number of lawful votes and were duly sworn into office. The 1st and 2nd Appellant, who contested on the platform of APC polled the second highest votes at the election.
Well into their tenure, the 1st and 2nd Respondent defected from the PDP, which political party sponsored them for the 2019 governorship election, to the APC (the 3rd Appellant herein). Consequent upon this, the 1st and 2nd Appellant approached the High Court of Ebonyi State, via an Originating Summons, posing some questions for determination. They sought a Declaration that the votes scored by the 1st and 2nd Respondent at the 2019 Governorship election for Ebonyi State were abandoned and/or invalidated, in consequence of which they should vacate their offices as Governor and Deputy Governor of Ebonyi State, respectively, and the 1st and 2nd Appellant who scored the second highest lawful votes at the election be declared winner of the election, returned and inaugurated as the Governor and Deputy Governor of Ebonyi State, in line with the provisions of Sections 221, 177, 179 and 285(13) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Sections 31, 85(1) 87(9) and 141 of the Electoral Act, 2010 (as amended). They also sought an order directing the 1st and 2nd Respondent to vacate their offices having abandoned the PDP, the substratum on which they stood and defected to the APC which never sponsored them, and the 1st and 2nd Appellant being inaugurated as Governor and Deputy Governor of Ebonyi State, respectively. The 1st and 2nd Respondent contested the action, by filing their joint Counter-Affidavit.
The trial High Court delivered its judgement, wherein it answered the questions posed by the 1st and 2nd Appellant in the negative, adjudging the Originating Summons unmeritorious and dismissing same with costs awarded in favour of the 1st and 2nd Respondent. Dissatisfied with the decision of the trial court, the Appellants filed an appeal to the Court of Appeal. Thereat, the 3rd Respondent, the Attorney-General of Ebonyi State, applied and with the consent of all parties, was added to the appeal.

Issues for Determination
The Appellate Court formulated the following two issues for determination of the appeal:
1. Whether the 1st and 2nd Respondent 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 Appellant in consequence of the 1st and 2nd Respondents’ defection to the All Progressive Congress (APC) from the Peoples Democratic Party (PDP), on which platform they contested and won the 2019 Governorship election for Ebonyi State?
2. Whether the 1st and 2nd Respondent, as Governor and Deputy Governor of Ebonyi State, could be sued in their personal capacities?

Arguments
On the first issue, counsel argued on behalf of the Appellants that the trial court erred by refusing the reliefs sought by the Appellants. He anchored his submission on the provisions of the Constitution to the effect that, a candidate can only contest an election on the platform of a political party and having won on the platform of a political party, any subsequent defection to another party within the tenure would have the consequences of abandoning the votes which heralded them into office and render the said votes invalid. Counsel argued further that votes cast at an election belong to the political parties, as candidates contest on platforms of political parties. Offices won are accordingly, held in trust for the political parties and exclusively for the benefit of the said political parties – AMAECHI v INEC & ORS. (2008) LPELR-446SC; FALEKE v INEC (2016) 18 NWLR (Pt. 1543) 61. Counsel concluded that though there is no direct constitutional provision on the consequence of the defection of an elected Governor to another political party, he posited that the trial court should have exercised its discretion to fill the vacuum, in line with the spirit of Nigeria’s partisan democracy. He urged the court to sanction the 1st and 2nd Respondent by removing them from office, while the 1st and 2nd Appellant should be the beneficiaries to take the places vacated by the 1st and 2nd Respondent.
Countering the submissions above, counsel argued on behalf of the 1st and 2nd Respondents that the position of the Apex Court in AMAECHI v INEC (supra) and FALEKE v INEC (supra), that votes scored at an election belonged to the political parties, had since been departed from in the more recent cases of CPC & ANOR. v OMBUGADU & ANOR. (2013) LPELR-21007 and OZOMGBACHI v AMADI & ORS. (2018) LPELR-45152(SC) at 48-49, among others. Relying on the decision of the Supreme Court in PDM & ANOR. v INEC & 2 ORS (2020) 17 NWLR (Pt. 1753) 303 SC, he argued that the issues relating to the election of the 1st and 2nd Respondent were concluded, having been returned as duly elected Governor and Deputy Governor. Thereafter, their mandate expanded beyond the political party which sponsored them for the election, to the entire State. Thus, their defection to any other political party was in line with the provisions of Section 40 of the Constitution, which does not attract any sanction thereunder. By his submission, the 1st and 2nd Respondent did not defect to another political party as candidates of a sponsoring party, but as public office holders whose removal from office must be in accordance with the provisions of the Constitution – A-G FEDERATION & ORS. v ABUBAKAR & ORS. (2007) 10 NWLR (Pt. 1041) 1 at 156-157. He contended further that Sections 180, 188 and 189 of the Constitution are explicit on the circumstances where the offices occupied by the 1st and 2nd Respondent would become vacant in addition to resignation under Section 306, and the circumstances do not include defection from political party which sponsored them for election. He contended that in the absence of an express constitutional provisions on defection of a Governor and/or his deputy, it is beyond the courts to embark on an interpretation which would amount to judicial legislation – MADUMERE & ANOR. v OKWARA & ANOR. (2013) LPELR-20752(SC) at 38.  Relying on Section 1 of the Constitution, he submitted further that the implication of the reliefs sought by the Appellants was an invitation to pronounce the overthrow or take over of the Government of Ebonyi State in contravention of the provisions of the Constitution, and that the courts do not have the constitutional powers to declare the offices of the holders of the position of Governor and/or his deputy vacant, for whatever reason.
In similar vein, counsel for the 3rd Respondent argued that there is no known statutory or constitutional implication warranting the removal from or vacation of offices of the 1st and 2nd Respondent, for defecting from the political party which sponsored them for their respective election to another political party. He argued that the decision in AMAECHI v INEC & ORS. and FALEKE v INEC had since lost their efficacy, in view of the more apt recent pronouncement of the Supreme Court to the effect that elections are won by individuals and not political parties. He contended that political parties are agents of candidates for the purpose of gathering votes, while the candidates are the beneficial owners of the votes cast in elections – HARUNA v APC & ORS. (2019) LPELR-47777(CA) 12-27.
Regarding the second issue, the Appellants submitted that the trial Judge was wrong in holding that the 1st and 2nd Respondent were covered by the constitutional immunity provided by Section 308(1) of the Constitution, and that the Appellants have no option other than civil litigation for the redress they sought. The Respondents on their part, argued that the 1st and 2nd Respondent are indeed covered by immunity provided under Section 308 of the Constitution.

Court’s Judgement and Rationale
The appellate court highlighted the provisions of the Constitution and the Electoral Act referred to by counsel, and concluded that the said provisions are irrelevant to the situation at hand, as they relate to pre-election issues and steps prior to the conduct of elections and post-election issues to be taken up at the election tribunals.
Considering the authorities of AMAECHI v INEC and FALEKE v INEC, relied on by the Appellants, the court held that central to the principles of stare decisis is that cases are only precedents for what they decide – A-G CROSS RIVER STATE v A-G FEDERATION & ANOR. (2012) LPELR-9335(SC). In Amaechi’s case, he had won the Rivers State governorship primary election of the PDP leading to the 2007 governorship election in Rivers State, and his name was submitted to INEC. The PDP subsequently substituted his name with that of Celestine Omehia, who was not even a candidate at the primary election. What the Supreme Court was presented with in that case, was whether the reasons adduced for substitution of a candidate by a political party accorded with the provisions of Section 34 of the Electoral Act, 2006. Just like the situation in FALEKE’s case, the facts are totally at variance with the instant case and cannot serve as precedents in respect thereof. The more apt decision in this situation is that of A-G FEDERATION & ORS. v ABUBAKAR & ORS. (supra).
The appellate court held further that the issues of votes are necessary for the determination of the winners of elections and 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 office holder assumes their office and their removal must be in accordance with the provisions of the Constitution. Though defection from one party to another may appear immoral or improper, nonetheless, membership of political parties is an exercise of the freedom of association guaranteed by Section 40 of the Constitution, which comes with attendant consequences, like every exercise of rights. While the Constitution provides for consequences for defection of a member of Legislature from the party on whose platform he was elected without showing that the party he left had suffered a division, the situation is different with regard to holders of the Executive offices of President, Vice President, Governor and Deputy Governor. 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. Judicial activism must be guided by the rule of law, lest it degenerate to judicial rascality. Their Lordships stated that the trial court’s rejection of this invitation which would have done incalculable damage to the rule of law and constitutionalism, is commendable.
The court held further that in interpreting the provisions of the Constitution, the literal rule of interpretation must be adopted. It is not the duty of the courts to make laws or speculate as to what the intention of the legislature would be, outside the express words of the legislation. This duty is even higher with the Constitution. The removal of the 1st and 2nd Respondent as provided for in the Constitution must be in the circumstances contained in Sections 180, 188 and 189 of the Constitution. Defection from 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 principles of expression unius est exclusio alterius – EHUWA v OSIEC (2006) LPELR-1056(SC). The removal of heads of other arms of government, has not been ascribed to the judiciary. While jurisdiction may be expounded, it cannot be expanded.
Deciding the second issue, the court held that while Section 308(1) of the Constitution seeks to protect the occupants of the offices of President, Vice President, Governor and Deputy Governor from distractions of unnecessary litigation, the present action of the Appellants cannot be brought within the class of such cases. The subject-matter of the action of the Appellants is the very office occupied by the 1st and 2nd Respondent, which offices cannot be deployed as shield by the 1st and 2nd Respondent as the res would have been extinguished by the time they vacate their respective offices at the end of their tenure – AMAECHI v INEC & ORS (supra).
Given the above, the court resolved the second issue in favour of the Appellants. Though the Appellants succeeded in respect of one of the issues, the court held that their failure in respect of the main contention implies that the appeal must be dismissed.

Appeal Dismissed.

Representation
Mr. O. Okorie with Mr. C.I.O. Okwor for the Appellants.

Mr. R.O.U. Nwaeze with Mr. N.U. Okoro, Mr. C.A. Okike and Mr. G.S. Ekoh for the 1st and 2nd Respondent.

A.O. Okafor, SAN with Mr. C. Uwa, Mr. E.N. Nwambam and Mr. R.O. Ogbolu for the 3rd Respondent.

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