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Ogbuoji & ORS v. Umahi & ORS CITATION: (2022) LPELR-57166(CA)

In the Court of Appeal In the Enugu Judicial Division Holden at Enugu

ON FRIDAY, APRIL 1, 2022 Suit No: CA/E/53/2022

Before Their Lordships: AHMAD OLAREWAJU BELGORE Justice, Court of Appeal JOSEPH OLUBUNMI KAYODE OYEWOLE Justice, Court of Appeal SYBIL ONYEJI NWAKA GBAGI Justice, Court of Appeal

Between

1. SENATOR SONI OGBUOJI 2. JUSTIN MBAM OGODO – Appellant(s) 3. ALL PROGRESSIVES CONGRESS

And

1. ENGR DAVID NWEZE UMAHI 2. DR ERIC KELECHI IGWE ­– Respondent(s) 3. ATTORNEY GENERAL OF EBONYI STATE

LEADING JUDGMENT DELIVERED BY JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. FACTS The 1st and 2nd respondents were sponsored for the 2019 Governorship election by the People’s Democratic Party (PDP). They won the said election on the platform of the party and were duly returned by the Independent Electoral Commission, the electoral umpire. The two of them were subsequently sworn in, upon which they assumed office respectively as Governor and Deputy Governor of Ebonyi State. The 1st and 2nd appellants had contested against the 1st and 2nd respondents at the said election on the platform of the 3rd appellant at which election they polled the second highest votes.

Well into their tenure, on November 17, 2020, the 1st and 2nd respondents defected to another political party, the All Progressives Congress (APC). Aggrieved, the appellants initiated an action against them at the High Court wherein they sought, inter alia, an order directing 1st and 2nd respondents to forthwith vacate their offices like Governor and Deputy Governor of Ebonyi State respectively, in consequence of their having abandoned the party (PDP) and defected to the APC.

The trial court found the suit unmeritorious and dismissed the appellants’ case. Dissatisfied, the appellants appealed to the Court of Appeal.

ISSUES FOR DETERMINATION The Court of Appeal determined the appeal on the following issues thus: (1) Whether the 1st and 2nd respondents have vacated or ought to vacate or be removed from their offices like Governor and Deputy Governor of Ebonyi State respectively and replaced with the 1st and 2nd appellants in consequence of the 1st and 2nd respondents’ defection to the All Progressives Congress (APC) from the People’s Democratic Party (PDP), on which platform they contested and won the 2019 governorship election for Ebonyi State?

(2) Whether the 1st and 2nd respondents, as Governor and Deputy Governor of Ebonyi State could be sued in their personal capacities?

APPELLANT’S SUBMISSIONS On issue 1, the learned counsel for the appellants argued that the trial court erred in not granting the reliefs of the appellants. He predicated this submission on the accepted facts that the 1st and 2nd appellants were runners up at the 2019 Governorship election in Ebonyi State, won by the 1st and 2nd respondents and that the 1st and 2nd appellants were the next set of candidates in that election who participated in all the stages of the said 2019 Governorship election.

Counsel contended that pursuant to the Constitution of the Federal Republic of Nigeria (as amended), a candidate can only contest an election on the platform of a political party and that has won on the platform of a political party, any subsequent defection to another party within the tenure would have consequences.

He expatiated that the defection of the 1st and 2nd respondents implied an abandonment of the votes, which heralded them into the office and rendered the said votes invalid and that they thereby became liable to vacate their offices.

He further stated that votes cast in elections belong to the political parties as candidates contest on platforms of political parties which canvass for votes and offices won are accordingly held in trust for the political parties and exclusively for the benefit of the said political parties. He referred to AMAECHI VS INEC & ORS (2008) LPELR-446(SC)

On issue 2, appellants’ counsel submitted that the learned trial Judge was wrong in holding that the 1st and 2nd respondents were covered by the constitutional immunity provided by SECTION 308 (1) OF THE CONSTITUTION.

RESPONDENT’S SUBMISSIONS On issue 1, learned counsel for the 1st and 2nd respondents submitted that the position of the Apex Court that votes scored at elections belonged to the political parties in AMAECHI VS INEC & ORS (supra) had since been departed from in the more recent case OZOMGBACHI VS AMADI & ORS (2018) LPELR-45152(SC) at 48-49.

Counsel submitted that thereafter the mandate of the 1st and respondents expanded beyond the political party which sponsored them for election to the entire State and their defection to any other political party was in line with SECTION 40 OF THE CONSTITUTION which did not attract any sanction under the Constitution.

1st and 2nd respondents’ counsel argued that the Constitution in SECTIONS 180, 188 AND 189 was explicit on the circumstances where the offices occupied by the 1st and 2nd respondents would become vacant in addition to resignation provided in SECTION 306 which circumstances did not include defection from the political party which sponsored them for election.

He argued that in the absence of any express constitutional provisions on the defection of a Governor and/or his Deputy, it is beyond the Courts to embark on an interpretation which would amount to judicial legislation. He referred to MADUMERE & ANOR VS OKWARA & ANOR (2013) LPELR-20752(SC) at 38.

Counsel for the 3rd respondent argued that the defection of the 1st and 2nd respondents from the People’s Democratic Party (PDP), the political party which sponsored them for their election to their respective positions as Governor and Deputy Governor of Ebonyi State, has no known statutory or constitutional implication warranting their removal from or vacation of their offices.

Counsel also aligned with the submissions of the counsel to the 1st and 2nd respondents that the decisions of the Apex Court in AMAECHI VS INEC & ORS supra upon which the appellants predicated their arguments had since lost their potency in view of the more recent pronouncement of the said Court in OZOMGBACHI VS AMADI (supra) which amplified the provisions of Section 141 of the Electoral Act 2010 and Section 285 (13) of the Constitution that elections are won by individuals and not political parties.

On issue 2, the counsel for the 1st and 2nd respondents and 3rd respondent submitted that the 1st and 2nd respondents were covered by absolute immunity provided by SECTION 308 OF THE CONSTITUTION and referred to the case of FABUNMI VS IGP ABUJA & ORS (2011) LPELR-3550(CA) at 35.

RESOLUTION OF ISSUES On issue 1, in response to the reliance of the Appellants’ counsel on the case of AMAECHI VS INEC & ORS (supra), the Court stated that same is totally at variance with the instant case and thus cannot serve as precedent in respect thereof.

The Court explained that membership of political parties is an exercise of the freedom of association guaranteed by Section 40 of the Constitution but like every exercise of rights, it comes with attendant consequences.

That where a member of the legislature defects from the party on whose platform he was elected without showing that the party he left had suffered a division, the cognizance for him is to vacate his seat as provided in SECTIONS 68 (1) (G) AND 109 (1) (G) for the Federal and State legislature respectively otherwise his seat will be declared vacant. See ABEGUNDE VS. ONDO STATE HOUSE OF ASSEMBLY & ORS (2015).

The Court however pointed out that the situation is different with regards to holders of the executive offices of President, Vice President, Governor and Deputy Governor as the provisions for their removal do not include where such officeholders defect from the political party under whose platform they were elected into office.

The Court further stated that there are no express constitutional provisions relating to the defection of elected executive officeholders of the offices of President, Vice President, Governor and Deputy Governor and that going by the literal rule of interpretation of constitutional provisions which is the basic cannon that words and phrases must be given their basic ordinary grammatical meanings, the removal of the 1st and 2nd respondents as provided for in the Constitution must be in the circumstances contained in SECTIONS 180, 188 AND 189 OF THE CONSTITUTION.

That defection from the political party on the platform of which they were elected was not stated as one of the grounds and cannot be made a ground for their removal by the Courts pursuant to the extant legal principle of expressio unius est exclusio alterius. See SHINKAFI & ANOR VS YARI & ORS (2016) LPELR-26050 (SC).

The Court pointed out that the judiciary is not empowered to declare the offices of the holders of the offices of Governor and Deputy Governor vacant as such power is not conferred on the judiciary by SECTIONS 180, 188 AND 189 or any section of the Constitution.

The Court posited that the consequence of defection of members of the legislature to another political party is for a bye-election to be conducted and not for the vacated seat to be allocated to either the political party or the runners up at the election. See ABEGUNDE VS. ONDO STATE HOUSE OF ASSEMBLY & ORS (supra).

On issue 2, the Court quoted the provisions of SECTION 308 (1) OF THE CONSTITUTION and explained that same seeks to protect the occupants of the offices of President, Vice President, Governor and Deputy Governor from the distractions of unnecessary litigation. That the present action of the appellants cannot be brought within the class of such cases. The Court stated that the subject matter of the action of the appellants is the very offices occupied by the 1st and 2nd respondents which offices cannot be deployed as shields by the 1st and 2nd respondents as the res would have been extinguished by the time the 1st and 2nd respondents vacate their respective offices at the end of their tenure. See the case of AMAECHI VS INEC & ORS (2008) LPELR-446(SC) at 60.

Thus, the Court held that the immunity provided by SECTION 308 (1) OF THE CONSTITUTION cannot avail the 1st and 2nd Respondents in the circumstances of this case.

HELD The appeal was dismissed by virtue of the appellants’ failure in respect of the main issue in contention.

APPEARANCES: MR. O. OKORIE WITH HIM MR. C.I. O. OKWOR – FOR APPELLANT(S) MR. R.O.U. NWAEZE WITH HIM – FOR RESPONDENT(S) MR. N. U. OKORO, MR. C. A. OKIKE AND MR. G. S. EKOH FOR 1ST AND 2ND RESPONDENTS MR. A. O. OKAFOR, SAN WITH HIM MR. C. UWA, MR. E. N. NWAMBAM AND FOR 3RD RESPONDENT MR. R.O. OGBOLU

Compiled by LawPavilion.