From Godwin Tsa, Abuja
The Abuja division of the Court of Appeal has set aside the judgment of the Federal High Court, Abuja sacking Ebonyi State Governor, David Umahi and his deputy, Dr. Eric Kelechi Igwe for defecting from the Peoples Democratic Party (PDP) to the All Progressives Congress (APC).
Justice Inyang Ekwo had in his judgment delivered on March 8, 2022 held that the total number of 393, 042 votes governor Umahi secured during the March 9, 2019 governorship election in Ebonyi state, belonged to the PDP and same could not be legally transferred to the APC.
According to the court, having defected to the APC, both Umahi and his deputy, not only jettisoned the PDP, but also the votes that belonged to it.
It held that going by the outcome of the governorship election, the office of the governor and deputy governor in Ebonyi state, “belong to the Plaintiff and no other political party.”
However, a three-member panel of the appellate court in their judgment on Friday, held that the 1999 constitution (as altered), did not ascribe any punishment for a sitting governor who defected from the party on whose platform he/she got to office.
Justice Haruna Tsanami who rendered the unanimous judgment held that the only constitutional option left for an aggrieved political party, by the defection of a governor or deputy, is through an impeachment procedure.
The appellate court agreed with an earlier decision by its Enugu division on the same issue.
Justice Tsamani held that the offices of the governor of a state and that of the deputy governor are creations of the Constitution, while the qualifications for a person to be elected a governor of a state are laid down in Section 177 of the Constitution.
“Where a person qualifies to contest for the governor of a state, he will be declared duly elected if he/she satisfies the requirements of Section 179(1)(a) & (b) or 179(2)(a) & (b) or 179(3)(a) & (b) or 179(4)(a) & (b) of the Constitution.
“The equivalent provision of the Constitution relating to the office of the deputy governor of a state are sections 186 and 187(1) & (2) of the same Construction.
“In the instant case, the appellants (Umahi and Igwe) satisfied the requirements of sections 179(2)(a) & (b) of the Constitution and were accordingly declared duly elected and sworn into office on the 29th May 2019.
“The first respondent (the PDP) has not contested or deny those facts.
It should be noted that the appellants were to occupy the offices of the governor and deputy governor of Ebonyi State for a term of four years from the 29th of May 2019 in accordance with Section 180(2) of the 1999 Constitution
“I have studiously perused the provisions of the 1999 Constitution (as amended), particularly the provisions relating to the tenure of office of the governor and deputy governor of a state and their removal from office.
“It is not in doubt that the tenure of office of a governor or deputy governor will, by the operation of any of the provisions of Paragraphs A, B, C & D of Section 180(1) of the Constitution, comes to an end.
“The tenure of the appellants cannot be deemed to have been vacated save in line with the ways enumerated in Section 180(1l and 188 of the 1999 Constitution.
“The appellants cannot, by any stretch of imagination be said to have vacated office by virtue of Paragraphs B & C of Section 180(1) of the 1999 Constitution.
“They were are still alive and occupying the offices of governor and deputy governor of Ebonyi State,” Justice Tsamani said.
He faulted the trial court for relying on the Supreme Court’s decisions in the cases of Amaechi & INEC and Faleke & INEC to hold that votes cast in election belonged to political parties and that where the candidate defects to another party, he/she can’t carry the votes along to the new party.
He noted that since both cases did not decide the impact of a governor or a deputy governor defecting to another party, they do not apply to this case.
The judge added: “By Section 179(1),(2)(3)(4) & (5) of the 1999 Constitution, it is a candidate for an election to the office of governor and or deputy governor that is declared as duly elected into that office and not the political party.
“Similarly, by section 75(1) of the Electoral Act, it is the candidate, who is declared elected and issued a certificate of return, not the political party.
“The learned trial judge erred grievously when he held that the votes cast at election are votes for the political party and not the candidate who merely used the platform of the political party to contest the election.”
He also faulted for holding that it was the party that the electorate voted for and not the candidate.
The judge added: “I have found earlier in the course of this judgment that a person elected as a governor or deputy governor of a state can only vacate or deemed to have vacated office as prescribed by Section 180(1) & (2) of the Constitution. However, such persons can also be removed from office as prescribed by Section 188 of the Constitution.
“Aside from the situations prescribed in Section 179(1) & (2) and Section 188 of the Constitution, the trial court had no views to hear and determine that the term of office of the appellants has ceased or the office has become vacant
“The facts of this case, which border on the defection of the appellant’s from the first respondent (PDP) to the third respondent (APC) did not fall within the purview of Section 272(3) of the Constitution.
“While the Constitution provides for the consequences of defection as it affect members of the Legislature, both national and state, there is no such provision relating to defection by members of the Executive,” he said.