As Court Sets Cross River’s Lawmakers on Edge

Udora Orizu  writes that there is palpable tension in Cross River following the recent sack of two members of the House of Representatives and 18 members of the State House of Assembly for defecting from the Peoples Democratic Party to the All Progressives Congress by a  Federal High Court  

Less than three weeks after a Federal High Court in Abuja sacked 15 members of the Ebonyi State House of Assembly for defecting from the Peoples Democratic Party (PDP) to the All Progressives Congress (APC), another Federal High Court, also sitting in Abuja, last Monday sacked two members of the House of Representatives and 18 members of the Cross River State House of Assembly for the same reason.

The presiding judge of the court, Justice Taiwo Taiwo, while delivering judgment on a suit instituted by the PDP to challenge the lawmakers’ defection, dismissed all the preliminary objections raised by the sacked lawmakers.

The lawmakers had last year defected with Governor Ben Ayade from the PDP to the APC, a move that provoked the PDP to challenge the lawmakers’ defection.

The party, in the suit in which it joined the Independent National Electoral Commission (INEC), Speaker of the House of Representatives, National Assembly, Clerk of the National Assembly, Cross River State House of Assembly, Clerk of the State House of Assembly and the APC as defendants, argued that there was no division in the party that warranted the defections of the lawmakers.

The party’s lawyer, Mr. Emmanuel Ukala, a Senior Advocate of Nigeria (SAN), sought the court’s interpretation of the provisions of Section 109(1)(g) of the Constitution, which prohibits a lawmaker from defecting to another political party without justifiable reasons.

Ukala also drew the court’s attention to the decision of the Supreme Court in the case of Abegunde versus Ondo State House of Assembly (2015). He contended that the lawmakers being persons whose election to the parliament was sponsored by the PDP should vacate their seats, having become members of another political party.

The plaintiff also sought “an order of injunction restraining INEC, the Speaker of the House of Representatives, Clerk of the National Assembly, the House of Assembly for Cross River State and the Clerk of the State Assembly from according recognition to the dismissed lawmakers.”

In addition, the party urged the court to make “an order of mandatory injunction compelling INEC to accept from the PDP the list of candidates for the purpose of filling the vacancies created by the exit of the lawmakers from the parliament on account of their defections.”

In its verdict, the court held that even though the major cause of action arose in Calabar, it has both “territorial and subject matter” jurisdictions to entertain the suit.

The judge agreed with the plaintiff that there was no rancour within the PDP to create the opportunity for the lawmakers to ditch their former party on whose platform they emerged in the 2019 general election.

“That at the time the lawmakers defected from the PDP to the APC, the PDP did not have division in the party,” the judge said.

The lawyer to the sacked lawmakers, Chief Mike Ozekhome (SAN), said the court’s decision would be challenged at the Court of Appeal.

The federal lawmakers affected by the court judgment on Cross River are Michael Etaba, who represents Obubra/Etung Federal Constituency and Legor Idagbor, representing Obudu/Obanliku/Bekwarra.

Cross River Speaker Eteng Williams and his deputy, Joseph Bassey were also among those sacked.

The others are: Odey Peter Agbe, Okon E. Ephraim, Regina L. Anyogo, Matthew S. Olory, Ekpo Ekpo Bassey, Ogbor Ogbor Udop, Ekpe Charles Okon, Hillary Ekpang Bisong, Francis B. Asuquo, Elvert Ayambem, Davis Etta, Sunday U. Achunekan, Cynthia Nkasi, Edward Ajang, Chris Nja-Mbu Ogar and Maria Akwaji. With the court’s decision, the affected lawmakers are on their way out of the legislative chambers.

Two sections of the 1999 Constitution make it explicitly clear how to deal with the issue of defection as it concerns the legislature in Nigeria.

For instance, Sections 68(1) (109(1)) state: “A member of the Senate or House of Representatives (House of Assembly) shall vacate his seat in the House of which he is a member if: (g) being a person whose election to the House was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that house was elected, provided that his membership of the latter political party is not as a result of a division in the political party of which he was previously a member or of a merger of two or more political parties or factions by one of which he was previously sponsored.”

Sections 68(2) (109(2)) also states: “The President of the Senate, Speaker of the House of Representatives or Speakers of the states’ Houses of Assembly (as the case may be), shall give effect to the provisions of subsection (1) of this section so that the President of the Senate or the Speaker of the House of Representatives or a member shall first present evidence satisfactory to the House concerned that any of the provisions of that subsection has become applicable in respect of that members.”

Apart from these constitutional provisions, the Supreme Court had in 2016 extensively dealt with the issue of defection as it concerns the legislature when it decided the case between the Labour Party versus Ifedayo Abegunde, who was a member of the House of Representatives.

In a unanimous judgment by a seven-man panel of justices, the apex court had ordered Abegunde to immediately vacate his seat in the House of Representatives on account of his defection from the Labour Party to the defunct Action Congress of Nigeria (ACN) because he was unfit to remain at the legislative house.

Abegunde had defected from LP to the ACN in 2011 and in a bid to forestall any possible move by his party to recall him, lodged a suit before the Federal High Court sitting in Akure. He, however, lost at both the High Court and the Court of Appeal, with the concurrent judgments of the lower courts equally declaring the defection as “unjustifiable.”

In their judgment, the Supreme Court panel which was headed by the former Chief Justice of Nigeria (CJN), Justice Mahmud Mohammed, held that the lawmaker acted illegally by abandoning the party that sponsored his election. The court stressed that as at the time Abegunde defected to the ACN, there was no division in his parent party, LP.

The apex court maintained that the lawmaker’s defection to another party would have been justified if there was a division in the national structures of the LP, such that is capable of hampering the smooth operation of the party. It held that Abegunde’s defection could not be validated since his excuse of purported division in the LP was not at the national level of the party.

Besides, the Supreme Court stressed that the “division” or “factionalisation” of the Labour Party, which was cited by Abegunde as his excuse for abandoning the party, was only at the state level.

Justice Musa Muhammad, who read the lead judgment, held that only a division that made it “impossible or impracticable” for the party to function by virtue of the provision of Section 68(1)(g) of the 1999 Constitution, “justifies a person’s defection to another party.”

For lawmakers, who frequently use crises in their ward and state chapters of their political parties as an excuse to defect, the apex court stressed that a division in a party at the state level does not entitle a legislator to abandon the party on whose platform he or she contested and won his or her seat. It said only a division that makes it impossible or impracticable for the party to function by virtue of the provision of Section 68(1)(g) of the 1999 Constitution, justifies a person’s defection to another party.

It further reminded any intending lawmaker wishing to defect to be guided by the principles it enunciated in the two cases – FEDECO vs Goni and the Attorney General of the Federation vs Abubakar – where it stated that only factionalisation, fragmentation, splintering or division that makes it impossible or impracticable for a particular party to function as such will, under the proviso to Section 68(1)(g), justify a person’s defection to another party and the retention of his seat for the unexpired term in the house.

Justice Muhammad further maintained that under the combined provisions of Section 68(1)(a) and (g) as well as Section 222(a), (e) and (f) of the Constitution, division in a party at the state level did not entitle a legislator to abandon the party on whose platform he or she contested and won his or her seat. Moreover, the apex court discountenanced the argument of the counsel to the appellant, Mr. Akin Ladipo, to the effect that not “any division” in a political party would entitle a person to defect from a party who sponsored his election without having to lose his seat.

Justice Muhammad said: “Not being the kind of ‘division’ that affects the national structures and therefore the corporate existence of the party, learned counsel insists, appellant’s defection does not come within the proviso to section 68(1)(g) to entitle him to retain his seat in the House of Representatives in spite of his defection to the ACN from the Labour Party on which platform he contested and won the seat. This position of the respondents is unassailable.”

The apex court, having extensively dealt with the issue, nobody ever thought defection would be rampant in the country again but it became worse. Observers have argued that part of the reasons the malaise become so common is the fact that sometimes, the lawmakers usually run away with the impression that before the suit filed against them is pursued to the Supreme Court, the four years he/she has to stay in the assembly would have been exhausted, like in the Abegunde case. They believe that if any presiding officer, especially at the federal  and state levels, displays courage and declares a seat vacant, it would serve as a deterrent.

But one thing that has shocked many Nigerians is that the issue persists after the Supreme Court had extensively laid it to rest.