Defection: Why Court declined to sack Gov. Ayade, Deputy

From Godwin Tsa, Abuja

The Abuja division of the Federal High Court has dismissed the suit the Peoples Democratic Party (PDP) filed to declare the seat of Governor Ben Ayade of Cross River State and his Deputy, Ivara Esu, vacant, following their defection to the ruling All Progressive Congress, APC.

Justice Taiwo Taiwo in his judgment on Thursday, held that the duo could not be sacked from their positions, other than through statutory procedures that were stipulated in sections 180, 188 and 189 of the 1999 Constitution, as amended.

He further held that defection to another political party was not stated as one of the grounds for the removal of either a governor or his deputy.

“The 3rd and 4th Defendant cannot be removed except by Constitutional provision.This court has no power to declare vacant the seat of the 3rd and 4th Defendants”, Justice Taiwo held.

PDP had in its suit marked FHC/ABJ/CS/975/2021, prayed the court to sack both Ayade and his deputy, contending that the duo, having abandoned the political party that sponsored their re-election, ought to vacate their respective offices.

The judge predicated his judgment on the last Friday’s decision of the Court of Appeal in Enugu, which dismissed an appeal filed against the Ebonyi State governor, Dave Umahi, on account of his defection from the PDP to the APC.

Mr Taiwo had, on Wednesday, took oral arguments from lawyers to the parties in the Mr Aayade’s case to determine the significance of the latest decision of the Court of Appeal on the implication of the defection of a governor from one party to another.

In the decision which was brought to the attention of the judge by Chief Mike Ozekhome (SAN), on Wednesday, the Court of Appeal in Enugu dismissed the legal action seeking to remove Mr Umahi and his deputy, Kelechi Igwe, from office on the account of their dumping the PDP for the APC last year.

While placing reliance on the recent decision of the Court of Appeal in Enugu, Justice Taiwo emphasised the necessity of the doctrine of judicial precedence, following the legal reasoning of the appellate court in Enugu.

“The facts and circumstances of this case are similar to that of the Court of Appeal in Enugu,” the judge said

Ozekhome had prayed the court to bow and respect the decision of the higher Court of Appeal on defection related matter.

While addressing the court on the effects of the Court of Appeal judgment on the defection suit against governor Ayade, he asked Justice Taiwo to apply the higher court decision to dismiss the suit against his client.

Besides, he further drew the attention of the Judge to a portion of the Court of Appeal judgment which held that under the amended Constitution, votes cast in any election belong to individuals and not political parties.

He further pointed out a portion to Justice Taiwo where the Court of Appeal held that political parties are agents of individuals and just vehicles for individual contestants to canvas for votes.

Ozekhome insisted that sections 180, 188 and 189 of the 1999 Constitution can only be invoked by the court to remove an elected governor only where such governor resigns, dies or is impeached by a State House of Assembly.

He added that Supreme Court had in recent decisions made it clear that defection is immoral, improper, ugly and condemnable but did not constitute an offence that can lead to the removal of elective public officeholders.

“My Lord, I humbly urge you to bow and respect the latest Court of Appeal judgment as a judicial precedent to resolve the instant case in favour of governor Ayade and his deputy.

“Supreme Court has in a plethora of authorities said that a lower court not applying judicial precedent of a higher court is nothing but judicial rascality that can lead to anarchy and I urge Your Lordship not to fall into that category.”

A similar position was canvassed by the Independent National Electoral Commission INEC and the All Progressives Congress APC.

Earlier, PDP Counsel, Emmanuel Ukala SAN had argued that the facts of the case which led to the Court of Appeal’s new judgment are fundamentally different from the suit of his client.

Ukala informed the high court that the Court of Appeal’s new decision was based on a suit by APC against APC where the instant suit is PDP against APC.

He further submitted that PDP was not a party in the Court of Appeal decision, hence, the new judgment is not binding on it for the simple reason of lack of fairness.

Ukala urged the Judge to hold that defection constitutes an offence as it amounts to the abdication of duties as a party with minority votes should not be allowed to rule over the party with majority votes.

After taking arguments for and against the new Court of Appeal decision, Justice Taiwo shifted judgment till April 7 to enable him consider the impacts of submissions by lawyers and the judicial authorities they cited.

The PDP is in its suit marked FHC/ABJ/CS/975/2021, praying the court to sack both Ayade and his deputy, contending that the duo, having abandoned the political party that sponsored their re-election, ought to vacate their respective offices.
It is among other things, seeking; “A declaration that in view of the provisions of section 221 of the Constitution of the federal republic of Nigeria, 1999 (as amended) and the democratic system of governance operated in Nigeria, votes at the election and elections are won by political parties and not their candidate or the candidates sponsored at the election by the political parties”.

It is praying the court to order the Independent National Electoral Commission, INEC, to immediately, “receive from the plaintiff (PDP), the name of its candidates to replace the 3rd and 4th defendants (Ayade and Esu) for the purpose of utilising the lawful votes cast in favour of the plaintiff or in the alternative directing the 1st defendant to hold a gubernatorial election for Cross River State in accordance with Section 177 of the Constitution excluding the 3rd and 4th defendants who are disqualified from participating in the election by virtue of Section 192 (1) (b) of the Constitution) arising from abandonment of the majority lawful votes and the offices occasioned by the action of the 3rd and 4th defendants by reason of their becoming members of the 2nd defendant who did not win majority of the lawful votes cast at the election”