Justice Ekwo of the Federal High Court (FHC) on 8th March, 2022 delivered a judgment which caused a legal stir in Nigeria. The ripple effect of that judgment is one which has thrown the legal community into series of debates. Legal debates which center on whether or not the FHC has jurisdiction to order that the position of a Governor or Deputy Governor is vacant. Even, more of the debates center on the issue on who has votes of the electorates. Would it be the political party which sponsors an aspirant to a political office or the aspirant? Does section 308 of the Constitution of the Federal Republic of Nigeria, 1999 (CFRN) serve as an absolute protection from legal proceedings to those it seeks to immume? These and more the learned Judge laid to rest in his judgment in ordering the removal of Engineer Umahi Nweze and Dr Eric Igwe, the Governor and Deputy Governor of Ebonyi State respectively.
The interest of this article is on the rationale of the court in removing the Governor and Deputy Governor of Ebonyi State. This will be placed side by side the provisions of CFRN and some judicial pronouncements of the Supreme Court. With these, the writer will take a position in the plethora of debates that have been canvassed from lots of agitated legal minds across the country.
Does the Federal High Court possess the jurisdiction to declare that the position of a Governor or Deputy Governor has ceased to exist or vacant?
Issue of jurisdiction is one which is fundamental and goes to the root of any matter before the court. Where a court has no power to adjudicate over a subject matter or where conditions precedents are not met prior the matter being heard, then any such judgment made by the court will all be of no legal effect. This has been the position of the Apex Court in various cases just as in the locus classicus of Madukolum v Nkemdilim.
The answer to the question as to whether the FHC has jurisdiction over this subject matter in discourse will be answered on the affirmative. This is hinged on the position of the provision of section 272(3) CFRN (First Alteration Act) 2010. The Federal High Court under Justice Ekwo rode on the strength of this provision to assume jurisdiction to entertain the matter brought by the People’s Democratic Party (PDP) to declare the position of Governor Umahi and his Deputy vacant as they contravened some provisions of the Constitution.
The provision of section 272(3) CFRN (First Alteration Act) 2010 empowers the FHC to assume jurisdiction over any matter that deals with declaring the office of a Governor or a Deputy Governor vacant or to declare that the term of the offices have ceased. To this extent, the FHC has the jurisdiction to entertain such matter as this.
Is the provision of section 308 of the Constitution an absolute protection from legal proceedings?
The purport of this provision of the Constitution is to protect anyone occupying the office of the President, Vice President, Governor and Deputy Governor, from any form of distraction, (which comes mostly by way of legal proceedings) from carrying out the political mandate reposed on them by the electorate. There are plethora of judicial pronouncements given to this regard. That will not be the bone of contention in this work as it is already a settled law.
However, emphasis has to be placed on whether that protection guaranteed under section 308 of the Constitution will be leveraged on as a cloak to be hidden on to contravene the sacrosanct provisions of the Constitution? The answer to this will be on the negative. I align my thought with that of the learned Justice Ekwo. Where anyone who is protected by virtue of section 308 of the Constitution goes contrary to the spirit of the Constitution, the veil of protection from legal proceedings should be lifted.
Else, we will breed persons who have been elevated in position of authority, asserting more power over and above the grundnorm which gave them the opportunity to be saddled with such position at the first place. Well, this is my humble submission which the courts in plethora of cases have differed from and resonated that such protection is absolute. Should the absolute protection then be leveraged on by the beneficiaries to abuse the provisions of the Constitution? I do not think that would be the intendment of the draftsmen of the Constitution.
To this extent, there should be a limit placed on the seemingly absolute protection of the head of the executive arm of government, both at the Federal and State government level. An amendment by the National Assembly to this regard should be contemplated in light of the happenings and ugly developments facilitated by the beneficiaries of this “absolute immunity from legal proceedings.” The National Assembly should at least, amend that provision by placing a proviso that so far as the persons sought to be protected by virtue of section 308 of the Constitution are in line with the provisions of the Constitution, then they will enjoy immunity against legal proceedings. It goes on to amplify the voice of reason that the protection is meant to be a legal shield and not a legal sword which is used by most of the beneficiaries to pierce some sacrosanct provisions of our dear Constitution.
Who actually owns the vote cast in an election? The political party or the candidate?
By the extant provisions of section 221 of the CFRN, it is contemplated that a candidate vying for any political office will be sponsored and nominated by a political party. Without the sponsorship or nomination of such person by any political party, such person cannot be allowed to run for any political office in Nigeria as expressly provided by section 221 of the Constitution.
Recourse was made to the case of Amaechi v INEC by Justice Ekwo, where the court held inter alia, that it is a political party that owns the votes cast in any election. In essence, a candidate hides under the facade of the political party to run for an election. And such party owns all the votes cast and not the candidate.
The trial court relied heavily on the case of Amaechi v INEC which has been overtaken by various rulings of the court. A clear example of such cases that have displaced Amaechi v INEC is CPC v Ombugadu. The latter case will be instructive at this point. The Court has settled the issue as to who owns the votes during an election. In the opinion of the Supreme Court in CPC v Ombugadu, it is not the political party but the candidate who stands in for an election that owns the votes of the electorates. Since the Apex Court has laid to rest as regards who really owns the votes in an election then, so be it. If so, then it will be correct to say that in an election, a political party is a mere vehicle which conveys a candidate to an electoral destination.
Was the Court correct in its position?
First and foremost, it has to be reckoned that there has never been any pronouncement made by the Federal High Court on when the office of a Governor or Deputy Governor has ceased to exist or has become vacant. Even as this power has been vested on the FHC by virtue of section 272(3) CFRN (First Alteration Act) 2010. This writer, at the point of writing this article, is not aware of any case, where the provision of this section has been tested, as to the removal of a Governor or a Deputy Governor by the FHC, save for this case.
It was the contention of the PDP that Governor Umahi was elected by the electorate on the sponsorship of the party in March 2019 which is to last till May 2023. If so, Governor Umahi ought to be loyal to the party that sponsored him and not jump ship to another party therefore, transferring the votes of the PDP to the APC. Be that as it may, since the Governor has decided to jump ship, the PDP argued that the Governor and his Deputy ought to have resigned as the APC was not the party that sponsored him in the March 2019 election neither was the APC the winner of that election. Hence, Gov. Umahi cannot transfer the votes of the PDP to the APC. The PDP further argued that since PDP was voted for and won in Ebonyi State, it means that the party has to substitute Engineer Umahi and Dr Eric Igwe with other PDP members to complete the tenure of the votes of the electorates reposed on the PDP till May 2023.
Now, the court in juxtaposing the provisions of sections 221 and 177(c) of the Constitution and the ruling of the court in Amaechi v INEC held that the political party has all the votes cast in an election. If that is the case, then, the court reached a logical conclusion that when one wins an election on the strength and sponsorship of a political party, it is envisaged that such person be on the party till the tenure of office to which he was elected expires. In an instance where such person wishes to leave that party which sponsored him, then, such person ought to resign from his position, as it is the party that won the election and not the individual. That actually is the rationale of the court in giving this judgment that sacked Governor Umahi and his Deputy Governor. Hence, the court found for the plaintiff and held in their favour.
I must reckon at this point that the court did not really aver its mind on the various pronouncements of the Apex Court on the issue of who actually owns the votes of the electorates. And this formed the bulk of the Court’s reason in giving that judgment on 8th March, 2022. The Constitution expressly provides for punishment of carpet-crossing for only members of the National Assembly and States Houses of Assembly in sections 68(g) and 108(g) of the Constitution respectively. The Constitution did not make any recourse to any of those elected into the executive arm of government at any level on the issue of carpet-crossing. Although, the court mentioned that the Constitution only made provisions for carpet-crossing for legislators only, that it can also be inferred for those elected into the positions of the executive arm of government as Governor Umahi and his Deputy.
With this in mind, I will submit that the judgment of the Court; being sound and full of erudition, highly cerebral, flowing from the wisdom of Justice Ekwo, (though made to cure a mischief of carpet-crossing,) derailed from the spirit and express provisions of the Constitution. And it is as well submitted that the Constitution never envisaged an instance where a Governor or a Deputy Governor will be removed by the FHC (which of course is empowered by the Constitution to do so) on the ground of carpet-crossing. The right mode for such removal, if any, should fall under gross misconduct and must be carried out through the right medium and procedure laid down in section 188 of the Constitution.
Import of the judgment in our political terrain…
Although, there are no express provisions on sacking a Governor or a Deputy Governor for cross-carpeting in the Constitution. However, as Lord Denning posited, judges should not be afraid in creating precedents, because if they do not, the law will be archaic and of course, standstill as the society moves on. And that will not be good for both the law and the society. The Court rode on the powerful words of Lord Denning and was not afraid in testing the provisions of the Constitution. Even as the Court clearly understood it stepped into a murky and deep water, in trying to chart a course for political sanity in our political system.
The mischief this judgment is trying to cure is to curtail carpet crossing which has beleaguered our political system. This is to create a level of sanity in the political system and not rob political parties of the mandate of the electorate since the Constitution envisage that parties sponsor any of their members to be voted into a political office in Nigeria. This judgment to me is a welcome development which is innovative in all fours. It can be likened to a legal sword capable of rendering asunder the vices of carpet crossing in Nigeria. But, it really did not conform with some extant provisions of the Constitution.
First, the judge did not consider some other provisions of the Constitution which are likely to be relied on by the Appellants in praying the appellate court to set aside the sound judgment of the trial court. Secondly, the legal system of Nigeria is submerged and subsumed on the principle of judicial precedents. Hence, the decisions of the higher courts have overall binding effect on all the lower courts. There have been decisions reached by higher courts on who owns the votes of the electorate, which the trial court misconstrued or better still, did not aver its mind on. But went on to heavily build its judgment on that faulty and shaky foundation. Although there have not been any pronouncement on when the office of a Governor or a Deputy Governor has ceased or is vacant. The reliance on the case of Amaechi v INEC by the trial court might form one of the reasons the Appellate Courts might consider in squashing and setting aside the judgment of the trial court.
Sound judgments like this which are geared towards testing the law and curing an obvious mischief in Nigeria are most times set aside on appeal. The grounds are mostly on jurisdiction, which are always hinged on technicalities especially, on grounds of condition precedents before the court entertains any matter. These technicalities were raised by the Governor in court which of course, the trial court gave ruling on and squashed. I believe they will be raised on appeal in order to defeat the judgment of the trial court. Surprisingly, none of the defendants in the instant case of PDP v Governor Umahi actually attacked the substance of the matter but veered on to hold unto jurisdiction and non-compliance to rules of the FHC by the plaintiff. Perhaps, there is a silver lining in the dark legal cloud for them.
Just like every other person, I have so much interest on the outcome of this particular case. Proverbially, I will keep my fingers crossed and watch as the whole drama unfurls before us in the Appellate Courts; to see if the higher courts will lay to rest the issue of carpet-crossing or still allow such in our political terrain. Time actually will tell.
About the Author
Solomon Ekeoma Ogbu is a student of the Nigerian Law School. He is a legal researcher and Author.