The Sacking of Governor Dave Umahi May be Reversed on Appeal.
By Manfred Ekpe, Esq.
Controversy has trailed the decision of Justice Inyang Ekwo of the Federal High Court Abuja (FHC) delivered on 8/3/2022 sacking the governor of Ebonyi State, Mr. Dave Umahi, and the deputy governor, Mr. Eric Kelechi. I have now read the judgment of the over 60 pages of the judgment dated 8/3/2021. But it is rather 8/3/2022.
I had already made my preliminary legal opinion to that judgment were I argued among others, that the FHC lacked jurisdiction to have heard the case since Governor Umahi and Deputy Governor Kelechi are inured with absolute constitutional immunity under Section 308 of the 1999 Constitution of Nigeria (as amended) (Hereinafter, the Constitution). I also disagreed that votes belong to candidates not political parties as held by the learned trial judge.
I now quite agree with the court decision partly, to the extent that constitutional immunity is not intended to be absolute so that elected officials inured under it should live above the law. I however still hold the opinion that the learned trial judge erred in law to have held that votes belong to political parties not candidates.
Concerning the question of absolute immunity, let me reproduce the dictum of the learned trial judge:
“the civil or criminal proceeding envisaged under section 308 of the constitution of Nigeria 1999 (as amended) are those cases were cause of action are such that are still enforceable after the tenure of the persons mentioned therein. In this case, the cause of action and remedy thereof cannot wait till 3rd and 4th defendants (Governor Umahi and Deputy Governor Kelechi) leave office….To propound otherwise will tantamount to creating monsters who will neither bow to the supremacy of the constitution or observe any law….” (Emphasis in brackets, mine).
I think I am inclined to agree absolutely with this jurisprudential reasoning of the learned trial judge. I may add that the intention of the lawmakers, from the language of subsection (c )of section 308 of the constitution supports the reasoning that the immunity envisaged thereunder was for such nature of cases were aggrieved parties will be able to seek remedy against the persons inured with constitutional immunity after the expiration of their tenure of office. Why would the constitution intentionally seek to protect persons ad infinitum or forever against answering to their wrongs if after the expiration of immunity period there is no more wrong to be answered to?, the wrong having ended with their term of office?
For proper understanding let me reproduce section 308 of the constitution.
“308(1) Notwithstanding anything to the contrary in this constitution, but subject to subsection (2) of this constitution;
No civil or criminal proceeding shall be instituted or continued against a person to whom this subsection applies during his period in office;
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no process of any court requiring or compelling the appearance of a person to whom this section applies shall be applied for or issued:
Provided that in ascertaining whether any period of limitation has expired for or against a person to whom this section applies, no account shall be taken of his period in office”.
For the sake of those not learned in law, let me explain the meaning of clause (c) of subsection (1), the laws of limitation disallows a person to bring Action against any person after the expiration of the period given by law to bring such action. For instance, the Statute of limitation stipulates that after a period of 3 years from the time a wrong (cause of action) arises in matters relating to contract the person wronged can no longer bring action against the person who wronged him, minus periods of arbitration.
Following from clause (c) of subsection (1) of section 308 of the constitution which says that in calculating such limitation period against persons covered by constitutional immunity, the period he is in office shall not be counted, to my mind, the proper interpretation of this subsection is that it was not the intention of the lawmakers to shield persons inured under constitutional immunity from justice forever. And that only cases which can still be brought against them after leaving office was envisaged under section 308. In the case at hand, where PDP (plaintiff) is disallowed to bring the action, upon expiration of Umahi/Kelechi’s tenure, the cause of action is also extinguished. I therefore reason along the line of the learned trial judge that section 308 does not envisage absolute immunity.
Having said this, I am of the opinion that the FHC was right in ignoring the objection of constitutional immunity.
The Learned trial judge in my opinion has given a landmark decision on the question of absolute constitutional immunity by limiting it in Nigeria.
WHETHER THE FEDERAL HIGH COURT HAS JURISDICTION TO HEAR THE MATTER?
Some legal minds have advanced the argument that the FHC has no jurisdiction to hear the matter except election tribunal or so. And that the claim is not within the provisions of section 251 of the constitution. My reasoning is that section 251 of the constitution confers jurisdiction on the FHC but without jurisdiction to hear question of tenure of office of the governor or deputy governor. However, the preamble to said section 251 says that an Act of the National Assembly may also confer further jurisdiction on the court. The National Assembly enacted the Federal High Court Act and in section 15 thereof, confers jurisdiction on the FHC to hear matters arising from questions whether or not any person is lawfully or validly occupying public office including the office of the governor and deputy governor. With this I am quite convinced that the FHC has jurisdiction to hear the matter.
WHETHER VOTES BELONG TO POLITICAL PARTIES.
Proceeding from the principle in Amaechi v INEC (2007) where the supreme court held that votes belong to political parties but not candidates and cannot be lawfully transferred to another political party, which principle was further stressed and reaffirmed in Falake v. INEC (2016), the learned trial justice of the FHC held that by defecting from Peoples Democratic Party (PDP) the party that sponsored them in the election in 2019 to the rival (All Progressives Congress (APC), the 3th and 4th defendants have abandoned the 393,045 votes of PDP and have consequentially lost the mandate to remain as Governor and Deputy Governor respectively since it is parties that contest and win election not candidates.
With respect to the learned trial judge, I am unable to agree with this reasoning. I must stress that I have not seen in the said judgment any thing to suggest that the recent supreme court decision in Ozomgbachi v Amadi (2018) which has set aside the Amaechi and Faleke decisions had been brought to the attention of the court by the defendants. I belief had the learned trial judge addressed his mind to Ozomgbachi and other recent supreme court decisions on the issue, he would have held otherwise. In Ozomgbachi supra, the supreme court held, per MARY UKAEGO PETER-ODILI, J.S.C., thus —
“I believe the Supreme Court has laid to rest the contention that it is the political party which contests and wins an election. In C.P.C. v OMBUGADU (2013) 18 NWLR (Pt. 1385), the Court was categorical that individuals as candidates win election and not the political parties”.
The case of Haruna v. APC & Ors (2019), further confirmed that votes belong to candidates not political parties. In that case, the Court of Appeal held among several others that “parties do not contest, win or lose election directly; they do so by the candidates they sponsored and before a person can be returned as elected by a tribunal or court, that person must have fully participated in all the stages of the election starting from nomination to the actual voting”. This is also the clear language of section 141 of the Electoral Act 2010. Therefore the substitution of candidate by political parties, which said candidate did not participate in all the stages of the election from nomination to voting is no longer the law. Lower courts are bound by the most recent decisions of superior courts. The FHC is bound by Ozomgbachi and Haruna, not by Amaechi Falake. I therefore think that the principle in Amaechi is no longer the law in Nigeria.
May I also at this point call in aid the express provision of section 179(2) of the constitution, which says—
“ A candidate for election to the office of a state governor shall be deemed to have been duly elected where, being two or more candidates…he had the highest number of votes cast at the election….” (Emphasis mine).
The constitution uses the term “he” not “it” expressing that the Constitution refers to a natural person not an artificial person which includes a political party. Section 14(a) of the Interpretation Act says that the term “he” refers to both male and female, which shows that the person referred to anywhere in the constitution to have votes is either a man or woman (candidates). Political parties have no sex.
Further, the wordings of the constitution in 179 is clear and needs no interpretation. The constitution clearly says a candidate contests and wins election by WINNING MAJORITY VOTE, not a candidate whose political party contests and win an election. The principle of constitutional interpretation is well settled. The wording of the constitution must be assigned its real, plain and ordinary meaning except when so interpreting will lead to absurdity or defeats the purpose for which the provision was made. This can not be said to be the case with section 179 and other provisions therein in pari materia. See Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941)219 where the supreme court held that the constitution must be interpreted as a whole. And where its provisions are unambiguous, no interpretation is required, but ordinary plain meaning must be given. See also I.M.B v. Tinubu (2001)16 NWLR (Pt. 740) 690; Abubakar v INEC (2020) 12 NWLR (Pt 1737) 37 at 103 — 104; National Assembly v. Accord (2021) 18 NWLR (Pt.1808) 193 at 260
I submit further that the import of section 141 of the Electoral Act 2010 (as amended) is that while a candidate at an election must be sponsored by a political party, the candidate who stands to win or lose the election is the owner of the vote and not the political party that sponsored him. See also section 143 of the Electoral Act which states that where A CANDIDATE (not his party) who was declared by INEC as having been returned as elected, is declared by the election tribunal or court as having not been validly elected, the candidate shall nevertheless remain in office pending appeal where he gives notice of appeal within 21 days. The clear language of section 143 of the Act is that a candidate is elected not a political party. It is argued that the principle in Amaechi had been overthrown by subsequent amendment to the Electoral Act. I quite agree.
Finally on this issue, I am of the opinion that votes belong to a candidate not political parties and that the learned trial judge erred in holding the opposite.
WHETHER A GOVERNOR AND DEPUTY GOVERNOR ARE LIABLE TO VACATE OFFICE UPON DEFECTION?
Sections 68(g) and 109(g) of the Constitution provides that any member of the National Assembly or State Houses of Assembly who defects to another party shall lost his seat. It the Exclusio Alterius rule of statutory interpretation that must be called in aid here. Expressio Unius Est Exclusio Alterius is a legal principle of statutory /constitutional interpretation expressing that when one or more things of a class are expressly mentioned, others of the same class which are not mentioned are intended to be deliberately excluded. In the case at hand section 109 of the constitution expressly lists the class of elected officials to lose their seats upon defection to another political party. The exclusion of the governor and deputy governor from this class means that the framers of the Constitution deliberately did not intend that the governor and deputy governor should lose their seat upon defection. I disagree with the reasoning that judicial legislation can be used to expand the provision of section 109 to include the governor and deputy governor as advanced in some legal analysis. This will amount to rewriting the constitution. The duty of the court is not to rewrite the Constitution but to give it interpretation within the intendment of its framers. Had the framers of the Constitution wished that the office of the governor and deputy governor should be affected by the defection of the occupants, they would expressly state so.
May I call in aid the case of Atiku Abubakar Vs AGF (2007) NGSC 118. The brief fact of the case is that the then vice president of Nigeria, Alhaji Atiku Abubakar defected from PDP, the party on which platform he was elected vice-president, to the Action Congress of Nigeria (ACN). The then president of state, Mr. Olusegun Obasanjo purported to have declared his seat vacant consequent upon that defection. The supreme court affirming the decision of the court of first instance unanimously held that there was no constitutional provision to declare the seat of the vice-president vacant by virtue of his defection to another political party.
The apex court cited sections 143 and 144 of the constitution which expressly provides for the circumstances under which the vice-president may vacate office. Defection to another political party is not one of them. The declaration of the seat of the vice-president as vacant was pronounced null and void by the unanimous decision of the supreme court in affirmation of the unanimous decision of the court of appeal. Atiku Abubakar served out his tenure. I am not aware of any other supreme court decision setting aside the principle in Atiku. By virtue of the doctrine of stare decisis and judicial precedent, the learned Justice Inyang Ekwo is bound by this apex court decision.
IN CONCLUSION, I am of the opinion that the order the of the Federal High Court declaring the seats of Governor Dave Umahi and Deputy Governor Eric Kelechi may be set side on appeal.
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