Two Senior Advocates of Nigeria, Paul Ogbole and Kunle Adegoke, have given their opinion relating the to the recent judgement of the Federal High Court, Abuja, which sacked the governor of Ebonyi State and his deputy for defecting from PDP to APC. The learned silks air their opinion during an interview at Channels Television.
According to Mr. Paul Ogbole SAN, the judgement of Hon. Justice Ekwo stands in a strong wicket because even though there was a previous judgement in Zamfara State wherein the Federal High Court refused to declare seat of the incumbent governor as vacant despite defecting from PDP to APC, the Ebonyi Judgement is the latest in time and therefore represents the current state of the law.
He said, “I think this is one of such cases where it was difficult to predict the direction the judgment was going to and I would also say that the position of the law regarding defection of candidates particularly in the executive is not entirely very settled so it could have gone either way because I’m also aware that in the Gusau case also the federal high court the decision went the other way, in other words, uh the court declined to declines to declare as normality the camping of Matawale and the other gentlemen who were with him in from PDP to APC, so here we have a situation whereby what has happened is that the court this time around of course of coordinate jurisdiction has pronounced its judgment that the position of the law relying largely on section 221 of the constitution is that votes are canvassed for the party, in this case, PDP and the governor came on board on the strength of the votes for the party and he cannot take his votes to take those votes that brought him on board to another party the votes still remain with the party and so that’s the position of the law as it is now because when they are conflicting judgments like that the latest in time would be the position of the law until set aside by an appellate court.”
When asked about the question as to who owns the votes, Ogbole SAN said votes belong to political parties. He fortified his view by relying on the case between Amaechi and Omehia and the case of Faleke v INEC.
“ Well, I think the authority upon which this judgment is based Largely section 221 of the constitution which talks about votes belonging to the party relating it also with the case of Amaechi if you recall Omehia became the candidate when Amaechi was, I think either disqualified or removed as a candidate at some point in time but at the end of the day, Omehia won the election and the court declared that these votes were for Amaechi who may have won the election year they went because he was a validly nominated candidate of the party resting this argument on section 221 of the constitution.
Now, I’m aware that there’s an attempt at the electoral act amendment of 2020 , section 141 if i that talks about, you know participating in the entire processes of the case of the election to give you the advice to challenge and also to qualify to be a candidate but that is the act not the constitution and generally the constitution is superior to the act now there’s an amendment to the Act which is there’s already an amendment to the act the 2022 Act and there’s also an attempt at a further amendment so some of these things are they’re not totally settled I believe in the days ahead we’ll know because the national assembly is still the issue of the amendment to the amended electoral Act is before them and I’m aware that the court already has stated that there should be a state i mean an internal order of court that actual parties should maintain some status quo, so that pending the hearing of the motion or notice which is still pending so I don’t want to go into that but basically the strength of the judgment,, it derives a strength largely from the provisions of the section of the of the constitution, the Amaechi case, the Faleke case in kogi state. These are strong wickets upon which that judgment is rested upon and that’s just the judgment of yesterday but I would admit that all we see for now are snippets in the media, so a fuller understanding of it will be when the judgment is made available, you know proper judgment is made available and when you glean through it properly you will have a better positioning of the matter” Ogbole, SAN said.
On his part, Mr. Kunle Adegoke SAN opined that the Ebonyi Judgement is not consistent with the intention of the makers of the Nigerian Constitution. According to him, section 221 of the Nigerian Constitution is meant for canvassing of votes only and nothing more. According to him, “I have considered the provision of the constitution in issue and one will realize that the mode of interpretation of the constitution must be one that will take into consideration holistic approach and not an individual consideration of a particular provision of the constitution the interpretation by the court with respect to votes being only capable of being conversed by a political party is not talking about a situation other than conversing for votes from the general populace and to that extent it is basically saying that an association that is not registered as a political party cannot canvass votes from the populace, the implication here is that it’s only a political party that can print manifestos go to the people and call upon them to vote for not that political party simpliciter, but for the candidates of the political party on which platform the candidate is running any other interpretation that will go beyond this except in such circumstances recognized by the constitution itself will be out of the way equally any other interpretation that will not be in accordance with certain decisions that the court has recognized may not be consistent with what the contemplation of the constitution is in this instance to a large extent, I believe that the interpretation placed on section 221 by the federal high court is not consistent with the intendment of the draftsman of the constitution in this instance”
Adegoke, SAN further opined that the provision for vacating office after defecting to another political party applies only to legislatures to the exclusion of the President, His Vice, Governor and his Deputy. He relied on the case between Atiku Abubakar and the Attorney-General of the Federation.
“we need to look at the judgments critically however where the requirement of the constitution is met with respect to the lawmakers the decision of the federal high court may be correct, however where the decision is not consistent with what the constitution has stipulated with respect to circumstances in which the defecting member of the parliament can vacate his seat then that decision will not be correct let me explain further on this if you look at section 66(1)g of the constitution which pertains to the national assembly members and section 109(1) g of the same constitution relating to other assembly members it provides that a condition a situation where a member of the house of assembly will vacate his seat his via defects from the political party on which platform he was elected to another political party however there is a provision to this provided that there isn’t a division in the party that he defected from and such division in the party has been interpreted by the Supreme Court in the Abegunde v Ondo State House of Assembly to be such division that would be national in character and not that maybe there is a division at the word level or at the local government level and not even at the state level that a party is divided in its leadership at the state level would not be the justification for a member of the parliament in the house of assembly or national assembly to defend from the party on which he was elected where there is a division at the national level then the constitution recognizes such a situation as allowing a member to defend from the political party or equally where that party where he was elected merges with another political party, newly recognized and registered by INEC then it cannot be a ground for him to vacate his seat as well in this instance in so far as the lawmakers defected to APC once it is established that there is a division at a national level of PDP that will justify such a defection then they are good to go once, there is no such division at the national level then the decision of the Federal High Court will be faulted.
“My status as the member and chieftain of APC notwithstanding, I must give a correct interpretation as laid down by the law and that is why I feel that there is much more trouble for the house of assembly members and a greater stake for them to surmount than the governor and the deputy governor with respect to the provision of the constitution relating to the president, vice president governor and deputy governor there is no such provision that the President or Vice President or Governor or deputy governor shall vacate his seat if he defects from one political party to another and these have been settled by the Supreme Court in A.G Federation v Atiku Abubakar, there hasn’t been a contrary pronouncement by the supreme court if you recall, I think Abu Bakr had a problem with his President and it became so deep that he felt he had no future in PDP, he defected to Action Congress Party and upon his defection, the attorney general brought an action challenging his status, as vice president of Nigeria, the supreme court categorically pronounced that yes, if we try to be a member of the legislature national assembly or state household assembly then it will be too bad for such a person we want to vacate his seat but for governor for president of the vice president there is no such provision in the constitution and whatever is not forbidden by the constitution cannot be interpreted by the court to be an anomaly although the court took cognizance of the fact that yes it might be very bad it might be distasteful that a person elected on the platform of a party as president or vice president and afford your right as governor or deputy governor defecting from the party on which he was elected to another might be quite very sad and immoral but the law here the constitution here is not ruling on the immorality or morality of the situation, it is talking about the legality or otherwise of the situation so the constitution has been pronounced with respect to the legislature with respect to the national assembly and the house of assembly that one is settled, however, with respect to the president, vice president, governor, and deputy governor there is no such permission that he shall vacate his state the only condition that may make such a governor or deputy governor to virtually be removed is where the house of assembly considers such an act to be gross misconduct because the definition of gross misconduct by the constitution is left to the discretion of the legislature the national assembly or the house of assembly to consider whether defection from the platform on which it was elected to another will be sufficient gross misconduct as to warrant his removal from office it is only the assembly the national hostage that can decide whether to effect that provision removes such government or deputy government”. Adegoke, SAN said.
Adegoke conceded however that votes belong to a political party but added however that only a person who has participated in all processes of an election that can take benefit of the same election.
He said, “Yes, interpretation in this regard is divided and it depends on the circumstances in which the ownership of the votes is being considered when you look at cases like Faleke V INEC
in which I effectively participated as counsel, it was an argument that votes cast belongs to the political party in this particular instance an election was held and in the middle of the election our governorship candidates died and the question is that will such be a situation to say that the votes can be considered as not belonging to anybody and we can pass the position that where the governorship candidate dies in the middle of the election the provision of the constitution does not say that automatically the deputy governorship candidate shall step into his shoes on the basis of the fact that yes votes belong to the political parties who in the political party can take the benefit of such votes that are left behind by the governorship candidate that died in the middle of the election where he could be after the conclusion and pronouncement of the election will equally still belong to the political parties that the vice president or deputy governorship candidate can step into in this regard we look at the provision who can take the benefits of this and we came to the conclusion which the supreme court effectively agreed with to the effect that it is only a person who participated in all the stages of the electoral process of that particular election that can take benefit of that a deputy government candidate was chosen by his governorship candidate after the primary had been concluded and once this is the positions pronounced by the supreme court that is the position of the law as of today however, in situations where for instance in Amaechi and INEC, where the supreme court pronounced that the votes belong to the political party and on that basis, PDP and Amaechi will inherit the benefits of that particular election and its running as governor that was prior because the constitution does not provide for all the government to the process of an election into a particular office it left a lot of duties to the national assembly to perform by enacting relevant as that will govern such electoral process so once this broker pronounced that the national assembly exploited the provision of the constitution that gave them the powers to enact laws and thereby enacted section 141 of the 2010 Electoral Act stipulating that if you did not participate in all the process in all the stages of the election you can be sworn in as the winner of that particular election and that is good to that particular extent each case must be utilized must be interpreted based on the circumstances in which it was pronounced now let us look at the case of CPC and UMBUGAJU”.
Mr. Paul Ogbole SAN’s response however was that the case of Atiku preceded the case of Amaechi by reason of which Amaechi’s case has to be given priority being the later in time. He also referred to Faleke’s case. He then concluded that the position of the law is not settled but that the Ebonyi Judgement is a good judgment
He said, “I agree with him (referring to Adegoke) on his exposition on the judgments of Faleke as well as Amaechi and then the provisions of section 221, the Atiku case he cited came earlier in time than the Amaechi case, so irrespective of the provisions or the pronouncements of the supreme court in the Atiku case, the Amaechi case came and the supreme court was of the view that the votes are votes for the party and that was reechoed again gladly he participated in a case in the Faleke case, so those two cases and the provisions of section 221 of the constitution. Of course, the constitution overrides whether the conflict the electoral act it is on the strength of these provisions that the judge my lord Justice Ekwo had the vires and the strength to come to arrive at that judgment and I still think that that is a very good judgment but generally there are precedents that you know that govern subsequent cases but of course those precedence must also be related to the line of the facts of the particular case so yes, cases would differ you know so the peculiarities of a particular case will determine you know how to what extent you can apply a president so in this particular case, it is fairly novel like I said the law is not entirely settled on this matter. it’s not a silver bullet that you say it answers all questions so the law is not entirely certain and I don’t know that they will still proceed on appeal the last is not heard of this matter it will go all the way to the supreme court and at that point in time we can say okay look this position of the law is settled but as it stands today I see it as a good judgment and that is the judgment of the land as at today.”