Contrary to a ruling by a Federal High Court in Gusau, Zamfara State, which affirmed Bello Matawalle as the governor of Zamfara State, in a suit by the Peoples Democratic Party (PDP), challenging his defection to the ruling All Progressives Congress (APC), another Federal High Court of coordinate jurisdiction, yesterday, in Abuja, has sacked the Governor of Ebonyi State, David Umahi and his Deputy, Kelechi Igwe, for defecting from the PDP to the APC.

The court, which was presided over by Justice Inyang Ekwo, however, sounded a strong note of warning to governors that, the immunity clause in section 308 of the 1999 constitution as amended, was not absolute, and therefore sacked 16 members of the state House of Assembly on the same ground but in a similar suit.

But the governor had immediately dismissed the court ruling, which had caused instant uneasy calm in the state as null and void, saying he was still in charge as governor of the state, and that the judgment was particularly bought.

Relatedly, the leadership of the opposition Peoples Democratic Party (PDP) had immediately sent names of choice replacements for the vacant positions to the Independent National Electoral Commission (INEC) as instructed by the court.

However, in his ruling, Ekwo held that the defection of Umahi, his deputy and others from the PDP to the APC was illegal, null and unconstitutional.

To this end, the court held that they all could not continue to occupy their various offices, having defected from the party on whose platform they came into office.

The defendants had contested and won the 2019 governorship election on the platform of the PDP but defected to the APC in September 2020.

Their action had, however, incurred the wrath of the PDP, which dragged them to court to challenge their continued stay in office, having left the party that brought them into power.

Delivering judgment in the suit marked FHC/ABJ/CS/920/2021, Ekwo held that since candidates contest election on the platform of political parties, the votes and the victory in any election accordingly belong to the party and not the candidates.

He subsequently ordered that Umahi and his deputy should vacate their offices immediately.

In a similarly suit filed by the PDP, the court also ordered the 16 Ebonyi lawmakers, who defected with their governor, to vacate their seats too, having dumped the party that brought them into office.

He therefore ordered the plaintiff (PDP) to present the names of its candidates to INEC for the post of governor, deputy governor and the affected 16 lawmakers of the Ebonyi State House of Assembly.

In addition, Ekwo ordered INEC to stop recognising Umahi and Igwe as governor and deputy governor of Ebonyi State respectively. He made a similar order in respect of the affected 16 lawmakers.

Arriving at his decision, Ekwo clarified that the crux of the matter was the defection of Umahi and Igwe from the PDP to the APC, saying the averments of the 3rd and 4th defendants did not address the issue of defection rightly and frontally but rather resorted to general denial to affidavit evidence.

Ekwo said the depositions of the 3rd and 4th Defendants in their counter affidavit were “evasive and insufficient” to competently challenge the Plaintiff’s originating process.

It was, therefore, the opinion of the court that the “Immunity Clause” in section 308 of the Constitution was not absolute.

“Section 308 is a veritable constitutional shield and not for political reasons,” he said, adding that Umahi and Igwe did not controvert the deposition that total votes scored in an election belong to a political party.

Ekwo explained further that there was sufficient evidence that the 2nd defendant (APC) contested the Ebonyi State governorship election held on March 2019, with its own candidates.

“It can be noted that the Constitution does not deal with the issue of defection lightly. The 3rd and 4th Defendants cannot transfer the votes and victory of the Plaintiff on March 9, 2019, to the APC. Offices of the Governor and Deputy Governor of Ebonyi State belong to the PDP.

“The option for Umahi and Igwe is to vacate office and wait for next election to contest election under the platform of its new party,” the court declared.

The court said the action of APC, Umahi and his deputy was aimed at dismantling the 1999 Constitution, and declared that under the democratic system operated in Nigeria, the plaintiff won the majority of votes during the election and was entitled to enjoy same till end of tenure of office for which the election was made.

Mike Ozekhome, SAN Reacts

In his reaction Chief Mike  Ozekhome,  SAN,, said the judgment cannot stand the scrutiny of the Appeal Court.

“I am of the firm belief that the judgment, shredded of all legal and factual details, cannot stand the acid test of constitutionalism, nor pass the furnace of appellate courts scrutiny. This is because the tenure of office of a Governor and his Deputy are constitutional matters.

The judgment is said to have sacked Governor David Umahi and his Deputy, Eric Kelechi Igwe from their offices. He cited section 221 of the Constitution, which merely prohibits political activities by certain associations which are not political parties from canvassing for votes or contributing to elections expenses of any candidate at any election. The Judge ordered the PDP to immediately send names of replacements to INEC so that fresh elections can be conducted. He also ordered INEC to cease recognising Umahi and Igwe as Governor and Deputy Governor, respectively, of Ebonyi State.

The learned trial Judge further held that the 393, 042 votes polled by Umahi in the March 9, 2019 governorship election belonged to the PDP and cannot be legally transferred to the APC upon defection, and that there is no constitutional provision that made the ballot transferable from one party to another. He therefore order INEC to conduct fresh election in accordance with section 177(c) of the Constitution. Not so fast, the enforcement of this judgment. The Governor and his Deputy have 90 days to appeal this decision under section 25(2), (a) of the Court of Appeal Act, it is their right under sections 240 and 241, of the Constitution, the judgment being a final one.

THIS JUDGMENT CANNOT SURVIVE APPELLATE SCRUTINY

Perhaps, the Jurist’s learned attention was not drawn to appellate decisions on this type of matter, which under the doctrine of stare decisis and judicial precedent, he ought to have followed meticulously. He may also not have been availed of the clear provisions of sections 180 and 188 of the 1999 Constitution.

VOTES BELONG TO INDIVIDUALS, NOT POLITICAL PARTY

The appellate courts have since held again and again that votes cast in an election belong to a live candidate, and not the political party which merely serves as a vehicle that enthrones candidates.

The Judge in his Judgment had agreed with the PDP which relied on sections 221, 177(c), 106(d) and 65(2)(b) of the Constitution to substantiate its argument that votes belong to the political parties; and it is impossible for candidates to exist without a political party. The case of NGIGE V. AKUNYILI (2012) 15 NWLR (PT.1323) 343 @ 357-376, which came much later over rule this position. The court held in that case that:

“…it is my considered view that the Appellant in relying on the provision quoted above (section 211 of the Constitution), has conveniently lost sight of the underlined words which show that a political party canvasses for votes on behalf of the candidate. In other words that a political party is nothing more than an agent of the candidate in gathering votes for an election. It is my further view that is against the backdrop of this, that the Electoral Act (Supra) requires the candidate (and not the party of the candidate) that has the highest number of votes at an election to be declared as the winner of the said election and further provides for the means of challenging the return of the candidate (and not his political party..”

The Conflicting Zamfara Example

But in the suit by some PDP chieftains in Zamfara State, seeking the removal of Governor Matawalle as governor of the state, Justice Aminu Aliyu of the Federal High Court, Gusau, dismissed the case for lacking in merit.

The court, in dismissing the case, ruled that the constitution of the PDP and that of the 1999 Constitution do not, in any way, prohibit any person from joining any association or political party.

Aliyu also premised his decision on the fact that it was only an election tribunal or state House of Assembly that could remove a governor from office. The ruling was delivered on February 8, 2022.

Similarly, on March 1, 2022, Justice Henry Njoku, of a High Court in Ebonyi State had earlier dismissed a suit seeking to remove Umahi and his deputy on account of their defection to the APC.

The judge in dismissing the suit slammed a N500,000 cost in favour of Umahi and his deputy.

The Plaintiff, Senator Sunny Ogbuorji, had demanded that the governor and his deputy, should vacate office for the second runner up, having defected from his former party, PDP.

Among the issue for determination was whether Umahi and his deputy, having defected to APC, could still continue to be governor, having regards to the provisions of the constitution and the Electoral Act as relied upon by the plaintiff and that having come second in the governorship election ought to be sworn in.

Responding, the defendants in their argument canvassed that the plaintiff was relying on the pre-election/election qualification issues, arguing that there was no provision in the constitution that provided for defection as one of the grounds for the vacation or removal of a person as governor or as deputy governor.

In his judgment, Njoku, citing Section 188 (1) of the 1999 Constitution, noted that the defendant (Umahi), has not offended any provision of the Constitution or the Electoral Act in his defection to APC.

The court further held that having regard to section 308 of the Constitution, it was wrong to institute criminal or civil proceedings against the office of the governor. The Court, therefore, dismissed the suit in its entirety.

Umahi: I’m still Ebonyi Governor, Judgment Was Bought

Ebonyi State Governor, Chief David Umahi, yesterday, described his removal by a Federal High Court sitting in Abuja for defecting from the Peoples Democratic Party (PDP) to the All Progressives Congress (APC) as unconstitutional, null and void and of no effect.

Briefing journalists in Abakaliki, Umahi reiterated that he still remained Ebonyi governor, and that he would appeal the judgement.

According to Umahi, a governor could only vacate his seat by either death, resignation or impeachment by majority of members of the state House of Assembly.

He noted that the judgement was allegedly concocted to embarrass the APC and the federal government.

Umahi said: “For me, I do not feel worried. I feel so sorry for the judiciary. The executive may have problems, the legislature may have problems too, but the moment justice could be purchased, then, we are in trouble in this country.

“Then the ruling this afternoon shows that this country is in trouble. And let me tell you that this same judge has over ten cases against Ebonyi State government with him. And you can imagine what he is going to rule. We have petitioned him to NJC and we will follow it up at all cost to ensure that this man is brought to justice”.

“I want you to disregard the judgement. It is null and void. There is a subsisting judgement in Zamfara State and there is also a judgement in Ebonyi State. These sections of the constitution are very clear. This is not a pre-election matter; this is not a tribunal matter, and so, he has murdered justice in this country and he will be remembered by his generation for this jungle justice, which has no leg to stand.

“I am still the governor of Ebonyi State, but let me say to the nation, there is a need to look at the integrity of the judiciary, because if the judiciary begins to rule on constitutional matters that are well laid down, then, the citizens of this country may decide not to obey the jungle justice,” and therefore called on the people of the state to remain calm and law abiding, as there was no issue to worry about.

Also, reacting to the judgment outside the court, Commissioner for Information and State Orientation, Mr Uchenna Orji, described the judgement as a travesty of justice and assured the people that they would appeal the decision.

Faulting the judgment, Orji stated that the judge only relied on provisions of the Electoral Act dealing with pre-election and election matters.

“The Court of Appeal decision in Amaechi shows that today’s judgement was a clear case of an error in law and we must challenge it at the appellate court,” he said.

He further disclosed that a court of coordinate jurisdiction in Ebonyi State, had made a pronouncement on this matter, saying the Constitution has no provision on defection for governors or has not made it an offence for a governor to defect from one party to another.

PDP Submits Names of Replacements to INEC

In a related development, the PDP, in compliance with the orders of Justice Iyang Ekwo of the Federal High Court, Abuja, which sacked Governor Dave Umahi and his deputy, Kelechi Igwe, has submitted two names of governor and deputy nominees to INEC.

The two nominees are Hon. Iduma Igariwe, a serving member of House of Representatives as the new governor and Mr. Fred Udogwu as the deputy governor.

The PDP also asked INEC to issue the certificates of return to the new nominees.

Addressing a press conference, the PDP National Chairman, Iyorchia Ayu, said, “Following  the removal of Governor Dave Umahi and his Deputy, Mr. Igwe, and in line with the Order of the Federal High Court directing the PDP to submit replacements for the duo, the national leadership of the party, has submitted the names of Hon. Iduma Igariwe as the new Governor and Mr. Fred Udogwu as the new Deputy Governor of Ebonyi State respectively.

“It follows the sacking from office of the Ebonyi State Governor, His Excellency, Chief Dave Umahi, and his deputy, His Excellency, Chief Kelechi Igwe, by a Federal High Court for defecting to the ruling All Progressives Congress (APC).

“In the same ruling, the court, presided over by Justice Inyang Ekwo, also sacked the 16members of the Ebonyi State House of Assembly, who also defected with the governor and his deputy into the APC.

“You will recall that Governor Umahi, his deputy and the 16 lawmakers were elected on the PDP platform in 2015 and again in 2019, but defected to the APC on November 17, 2020, citing ‘injustice done to the South-East’.

“And determined to reclaim our stolen mandates, the PDP had sued them and joined both the APC and INEC in the suit. We had prayed the court to declare that by defecting from the PDP, on whose platform they were sponsored and elected, Umahi, Igwe and the 16lawmakers had resigned or deemed to have resigned from office on the day of their defections. And the Federal High Court, sitting in Abuja, gave the PDP and democracy justice today.

“In a landmark judgement, the court ruled that, ‘the votes in any election in Nigeria are to political parties, and not candidates. Justice Ekwo consequently ordered all the affected persons to vacate office. He also ordered the Independent National Electoral Commission (INEC) to receive names of candidates from the PDP to replace Messrs Umahi and Igwe.

“First, we want to appreciate the Nigerian Judiciary for this landmark judgement. The ruling will bring order in the political space and check the issue of political rascality and stolen mandates. The judiciary is indeed the backbone of this democracy.

“We also want to single out Justice Inyang Ekwo for special recognition, particularly, for being courageous and forthright in going for the substance of the law rather than the technicalities.

“And in line with the court order, PDP is immediately submitting to INEC, the names of our candidates for Governor and Deputy Governor of Ebonyi State respectively. We are also calling on INEC to immediately issue the Certificates of Return to the PDP nominees as replacement for Messrs Umahi and Igwe pursuant to the Order of the Honourable Court.

“Furthermore, we call on the Chief Judge of Ebonyi state to immediately swear them in as soon as INEC issues the requisite Certificates of Return. And lastly, we call on INEC to immediately withdraw the Certificates of Return from the 16 lawmakers and commence the process of conducting bye-elections to replace them,” Ayu stated.

Judgment is Judicial Recklessness, Says APC

The ruling APC, has described the Federal High Court judgement on the defection of Governor David Umahi as a clear case of travesty of justice and judicial recklessness.

The party in a statement issued yesterday by the Director of Publicity, Mr. Salisu Dambatta, declared that the judgement was dead on arrival.

The party stated: “Our attention has been drawn to the judgement made by Hon Justice Inyang Ekwo of Court 5 of Federal High Court FCT, Abuja and the travesty of Justice occasioned by the recklessness of his  Judicial decision.”

APC insisted that the presiding Judge committed a glaring judicial error by giving judgement sacking a duly elected and sworn in governor and his deputy without relying on or citing any provision(s) of the constitution or any provision of the Electoral Act that empowers the court to sack a sitting governor and or his deputy, saying, “This is purely a travesty of Justice.”

The ruling party emphasised that the court failed, refused or neglected to understand the clear difference between a governorship candidate of a political party as contemplated by the Electoral Act and a Governor of a state duly sworn in as contemplated by the Constitution of the Federal Republic of Nigeria.

“The Court presided by Hon. Justice Inyang Ekwo further went ahead to rely on the outdated authority of Amaechi v INEC (Omegha case) without exercising the Judicial power of Judicial distinction between pre-election/ election matters and this matter of elected governor defecting to another Political Party.

“He chose not to appreciate or he lacked the understanding of the difference between a Governor of a State and Governorship candidate of a political party. The Electoral Act and the judgement in Amaechi v INEC contemplate, who is the right candidate of the Party and not the issue of defection, as you all know neither Amaechi nor Omegha raised the issue of defection to another political party.

“So it is absolutely ridiculous and questionable, as it is shameful that a judge could decide a weighty matter such as conditions for sacking the governor of a State without relying on any express provision of the Constitution or Electoral Act or Judicial Authority either of superior courts or even courts of coordinate jurisdiction.”