Defection: SANs divided over Umahi’s sack by high court

ABUJA–Reactions have continued to trail the Federal High Court judgement that sacked Governor David Umahi of Ebonyi State and his Deputy, Eric Igwe, following their defection from the Peoples Democratic Party, PDP, to the ruling All Progressive Congress, APC.

Senior Advocates Nigeria, SANs, on Wednesday, expressed divergent views on the matter.

While some of them hailed the decision of Justice Inyang Ekwo that votes Umahi and his Igwe garnered during the March 9, 2019, governorship election in Ebonyi state, belonged to the PDP, others, maintained that the high court lacked the powers to order the governor and his deputy to vacate their respective offices.

According to Olisa Agbakoba, SAN, “Based on the Supreme Court decision in Amaechi vs Celestine Omehia, and PDP, the candidate who wins political office holds the office in trust for the Party.

“The Party is the only legally permsible entity under the Constitution and the Electoral Act, who canvasses for votes.

“As a result the political office to which a candidate runs , say for president or senate etc, is to the benefit of the Party exclusively.

“This view is the decision of the Supreme Court in the Amaechi case referred to”.

Prof. Epiphany Azinge, SAN, said: “There are many dimensions to the issue. First is, can an action be brought against a sitting Governor regardless of the provision of Section 308 of the Constitution on immunity?

“The court answered in the affirmative and I respectfully agree.

“Second is, whether earlier decisions of the Supreme Court on the subject of defections as it affected the legislature can by parity of reasoning be stretched to the Executive?

“Again, the court answered in the affirmative. I am not sufficiently persuaded.

“First is that the constitution is silent in that regard. But can the Judiciary not engage in Judicial Lawmaking to fill the gap when there is obvious lacunae?

“Yes it can, and that, the judge did in the circumstances. It could be argued that perhaps the framers of our constitution never contemplated that elected Governors could ever defect to another party after election.

“It was never a part of our ugly Constitutional history. So the court in exercise of it discretion chose to fill the gap.

“I endorse the policy thrust of filling the gap.There are divergent and discordant views on the matter. What is paramount is the decision of the court.

“It is the Law until set aside. In other words, the Governor and Deputy Governor should vacate their seats in the absence of stay of proceedings or an upturn of the court Order by a court of superior heirachy”.

Adding his voice to the debate, Dayo Akinlaja, SAN, said: “The reality on ground is that the court that gave this judgment is a court of first instance.

“There is as such a window of opportunity for an aggrieved party to appeal against the judgment. Having regards to the all important nature of the matter, it is certain that there will be an appeal.

“My own attitude is that the Court of Appeal should be allowed to decide the matter in the way and manner considered proper by that appellate court.

“Almost invariably, whoever loses on appeal will eventually take the matter to the apex court of the land for final determination. Until then, whatever anyone says would be of no moment in practical terms.

“In sum, I encourage that the matter be allowed to be effectively settled in the judicial forum as instituted in the Constitution of the country”.

While disagreeing with the judgement, Jubrin Okutepa, SAN, said: “This judgment, on the superficial level, seems very attractive and well intentioned to instill political sanity in our otherwise reckless political terrains.

“But beyond this and also scoring political debates, is there jurisdiction in the Federal High Court to make the orders it made, in the light of, and upon a dispassionate construction and interpretation of Nigerian Constitution 1999 as amended. I do not think so.

“There is no power and jurisdiction in the Federal High Court to determine and declare that by constitutional misconduct of defecting to another political party other that the party upon which the Governor and the Deputy Governor were elected their seats had become vacant and to order the conduct of election to their offices.

“Jurisdiction to make post election declarations and orders as made by the Federal High Court is not in our constitution.

“Section 251 of the 1999 constitution as amended in subsection 4, limited the jurisdiction of Federal High Court to determine whether the seat of a member of House of Representatives has become vacant or that of members of senate.

“It appears that the draftsman of our constitution did not contemplate that when a governor defects or his deputy then he or she must vacate the office. If that were to be the case, the constitution would have said so.

“But let us wait and see what the other higher courts in the land will say, but until then it does not lie in the mouth of the Governor or his Deputy to say they will not obey the orders.

“Their remedies are not in acting contemptuously but in ventilating their dissatisfactions by due process”.

Similarly, Chief Mike Ozekhome, SAN, said: “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.

“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.

“I most respectfully submit (as held by appellate courts) that a political party is merely a vehicle in which a candidate can ride to contest an election and nothing more.

“The votes belong to the candidate and not the political party. The political party ceases to have any considerable relevance or insolence over a person that has won an election and has been sworn in as a legislator, Governor or President of the entire people, who are far larger than a mere political party.

“I humbly submit that a Governor already sworn in can not be removed by the Federal High Court through an Originating Summons. It will surely be set aside on appeal. Mark my words”, Ozekhome added


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