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 his political party..”

He pointed out that Section 308 of the Nigerian Constitution grants absolute immunity to the President, Vice President, Governor and Deputy Governor while in office.

According to the SAN: “Consequently, no civil or criminal proceedings could ever sustain against this set of persons, whilst still holding office.

“Going by the above plethora of authorities, I humbly submit that a Governor already sworn in cannot be removed by the Federal High Court through an Originating Summons. It will surely be set aside on appeal.”

zeuss:
PDP why all the noise?...if that governor cannot be removed, remove the 17guilty house members, get back majority and impeach the subject.....the PDP speaker of the House be made to assume governor role everybody will be happy �

jom28gy:
Judge in the process stating what the law is, should also know that,law is what the court says it is?

kahal29:


https://dailypost.ng/2022/03/09/umahis-sack-why-govs-cant-be-removed-from-office-for-defecting-nnamdi-kanus-lawyer-ozekhome/

https://www.thisdaylive.com/index.php/2022/03/09/unlike-zamfara-court-sacks-umahi-igwe-16-lawmakers-says-votes-belong-to-party/

kahal29:
This is the correct position of the law. The judgement by Justice Inyang can't stand at the appellate court because you cannot build something on nothing and expect it to stand.

Which defection law in our constitution did justice Inyang base his judgement on?

The judge simply embarked on judicial voyage and activism to create a new law which does not exist.

The Supreme court in plethora of cases frowns at such adventure. In the case of Attorney General of the Federation V. Abubakar (2007) 10 NWLR (part 1041) 1. At page 124 of the report, Justice Onnoghen set down the position thus:

It is the constitutional responsibility of the legislature to make or amend the laws including the constitution, where the need arises, while that of the judiciary remains to interpret and apply the laws so made or amended. The courts can therefore not add or subtract from the law as enacted by the legislature under the guise of judicial interpretation of the constitution or statute…”

The judgement erroneously relied on Section 221 of the 1999 Constitution (as amended) as well as the judgment of the Supreme Court in Faleke v. INEC.

Unfortunately, the Supreme Court decision in Faleke v. INEC does not relate to the consequence of the defection of a governor from one political party to the other. A more apt instance will be the Atiku Abubakar scenario wherein Atiku Abubakar as Vice President, elected under the PDP, defected to the then Action Congress.

The position of the Supreme Court was also stated in Attorney General of the Federation V. Abubakar (2007) 10 NWLR (part 1041) 1 where Justice Onnoghen held thus:

“There is nowhere in the 1999 Constitution where it is stated that the President or Vice President of the Federal Republic of Nigeria shall be removed or is removable from that office if he defects from the political party on whose platform he was elected to that office and joins another political party.”