Alex Enumah in Abuja

Confusion continue to trail the defection of Ebonyi State Governor, Dave Umahi, following a judgment of Court of Appeal Enugu Division, which yesterday, affirmed his governorship having defected from the Peoples Democratic Party (PDP) to the All Progressives Congress (APC).

The appellate court in a judgment affirmed the judgement of Ebonyi High Court, Abakaliki, which quashed a suit challenging Umahi and his deputy, Dr. Kelechi Igwe, continued stay in office having decamped from the party that brought them to office.

The governor, his deputy and some members of the State House of Assembly had on November 2020 decamped from the PDP to the APC, an action which has provoked current litigations both in Abakaliki and Abuja Federal High Court as well as the Abuja Division of the Court of Appeal.

While the Ebonyi High Court had dismissed the suit against their decampment, the Federal High Court on the other hand had ordered their removal from office.

The suit in Abakaliki was filed by the governorship candidate of the APC in 2019 in Ebonyi State, Senator Suny Ogbuoji and his running mate, Mr. Justin Ogodo, praying the court to hold that the defendant, David Umahi, having defected to the APC from the PDP, ought to vacate the office, so that they would be sworn-in, having come second in the election.

But, Justice Henry Njoku of the Ebonyi State High Court in his judgment had dismissed the suit for lacking in merit, prompting the plaintiff to approach the appellate court.

However, the appellate court in a unanimous judgment delivered by Justice A. O. Belgore, similarly dismissed the appeal for lacking in merit.

The appellate court held that Governor Umahi and his deputy had the right to move to any political party they so wished, adding that there was nowhere in the constitution, that barred a sitting governor from defecting to any political party.

Justice Belgore in the judgment said that the governor and his deputy did not offend any provision of the Constitution or the Electoral Act, as there was no consequence under the law against the defection of the holder of the office of the President, Vice President, Governor or Deputy Governor, to another political party from the party that sponsored the election that brought him or her to office.

It further held that the defection of a political office holder may appear immoral, but it was not the duty of the court to embark on investigation or probe into the provisions of the laws, warning that judicial activism must not be turned into judicial rascality.

The appellate court further held that there was no provision in Sections 180, 188 or 189 of the 1999 Constitution as amended, that empowered the court to remove either a sitting governor or the deputy.

According to the learned Justices, “defection of an office holder is not novel to Nigeria’s judicial jurisprudence.”

The appellate court in Enugu accordingly dismissed the appeal, with a cost of N200,000 against the appellants.

The two other members of the three-man panel include; Justice J.O.K Oyewole and Justice S.N Gbagi.

Recalled that Justice Njoku in his own judgement held that, having regard to Section 188 (1) of the 1999 Constitution as amended, the defendants, Governor Umahi and his deputy, had not offended any provision of the Constitution or the Electoral Act in defecting to the APC.

The High Court further held that, having regard to section 308 of the Constitution, it was even wrong to institute criminal or civil proceedings against the office of the Governor or Deputy Governor.

Dissatisfied with the judgement, the plaintiffs, Mr. Suny Ogbuoji and his running mate, Justin Mbam Ogodo, on March 7, 2022, filed an appeal against the judgement, at the Enugu Judicial Division of the Appeal Court.

Meanwhile, Nigerians are eager to see the outcome of a similar appeal at the Court of Appeal, Abuja, where Umahi and his deputy are the ones seeking to upturn the judgment of Justice Inyang Ekwo, who had ordered their sack from office on account of their defection.

Justice Ekwo had in a judgment delivered on March 8, ordered the applicants to vacate the elected offices they occupied owing to their defection.

The court had held that their continued stay in office was illegal, null and unconstitutional on the grounds that votes in an election belongs to political parties and such votes cannot be transferred, hence the applicants who won the 2019 election with the PDP cannot transfer the votes of the PDP to the APC following their defection.

The judge further ordered the PDP to present another candidate to replace the decampees governor and deputy, or in the alternative, the Independent National Electoral Commission (INEC) should conduct a fresh poll within 90 days.

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

In arriving at his decision to sack Umahi and Igwe, Justice Ekwo clarified that the crux of the matter was the defection of Umahi and Igwe from the PDP to the APC.

According to the judge, 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.

Justice 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 the opinion of the court that the “Immunity Clause” in Section 308 of the Constitution is not absolute.

“Section 308 is a veritable constitutional shield” and not for political reasons.

In addition, the judge held that Umahi and Igwe did not controvert the deposition that total votes scored in an election belong to a political party.

Justice Ekwo said evidence abound 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 court stated.

“The 3rd and 4th Defendants cannot transfer the votes and victory of the Plaintiff on March 9, 2019, to the APC.

“Office of the Governor and Deputy Governor of Ebonyi State belongs 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 the APC, Umahi and his deputy was aimed at dismantling the 1999 Constitution.

Consequently, the court declared that under the democratic system operated in Nigeria, the plaintiff won the majority of votes during the election and is entitled to enjoy same till end of tenure of office for which the election was made.

Meanwhile, in the appeal filed in Abuja, by their lawyer, Chukwuma Machukwu-Ume, SAN, the appellants are asking the court to set aside the judgment of the trial court that ordered their sack.

The appellants predicated the appeal on 11 grounds on which they argued that the trial court erred in law in arriving at the decision to remove them from office.

In ground one of the appeal, the appellants contended that the lower court erred in law and misdirected itself when it held; “I have not seen any authority which propounds that where a Governor or deputy Governor defects, his political party on which platform he was elected into office, he cannot be sued by that political party to reclaim its mandate…Section 308 of the 1999 Constitution did not envisage such a situation.”

The appellants submitted that the trial court was virtually setting aside the Supreme Court of Nigeria’s decision in “AG Federation v. Atiku Abubakar & 3 ORS (2007) LCN/3799(SC) to the effect that there is no constitutional provisions prohibiting President or Vice and invariably the Governor and or deputy Governor from defecting to another political party or meting out punishment for doing same.

“The trial court was also virtually setting aside the decision of the Supreme Court in Global Excellence Communications Ltd v. Duke (2007) LPELR — 1323 to the effect that state Governors and their deputies have immunity against being sued while in office,” the appellants argued.

Umahi and Igwe posited that the provisions of Section 308 are specific notwithstanding anything to the contrary in the Constitution but subject to subsection (2) of the section, “no civil or criminal proceedings shall be instituted or continued against 3th and 4th Appellants during their mandate in office as Governor and Deputy Governor respectively.”

More so, the appellants maintained that “there is no provision of the 1999 Constitution (as amended) that provides for the removal of the appellants as sitting Governor and Deputy Governor respectively of Ebonyi State for reason of defection.

Among other grounds, the appellants argued that the lower court erred in law when it assumed jurisdiction on issue of defection of appellants when it has no jurisdiction over same.

The error according to Umahi and Igwe is that the trial court’s interpretation of what amounts to the Federal High Court having the powers of State High Court under the Constitution was wrong.

“Power of Court and jurisdiction are not the same.”

The appellants argued that they are state officers and not federal officers.

The appellants also faulted Justice Ekwo for relying on Sections 68 and 109 of the 1999 Constitution in holding that the appellants having defected from the PDP to the APC offended the provisions of the Constitution and must vacate their offices as Governor and Deputy Governor respectively.

They further claimed that the trial court misdirected itself because “There is no specific mention of Governor and deputy Governor in the provisions of section 68 and 109 respectively of the 1999 Constitution (as amended).

“By relying on Sections 68 and 109 of the Constitution, the trial court assumed the role of the legislator and arrogated to itself the powers of amendment of the Constitution.

“There is no provision in the 1999 Constitution (as amended) which state that Governor or deputy Governor will vacate his office if he defects from his political party to another political party.