Being a member of APC, you can accuse me of anti party, but don’t be too quick about that. In 2018, when Governors of Benue, Sokoto and Kwara states defected from APC to PDP, I personally wrote to APC Leadership requesting that they take up legal action against the said governors on the ground that their defection was unconstitutional and illegal. Unfortunately APC failed or refused.
Upon public interest litigation, I proceed to Court against the three Governors, mandated by an NGO, since we could not raise all the voters in each of the states for that purpose. The Three Governors were very agitated and had no meaningful defence or response to my arguments. It was so bad that one SAN (name withheld) in one of the matters thought I was being sponsored by some big man in APC and asked to go appeal to the big man on his client’s behalf. It turned out that I was on my own. Then, they found the loophole and raised Preliminary Objection, that the NGO did not have locus to sue. I knew the preliminary objection was strong and valid; the NGO was neither the political party that won the election, nor was it a human being who voted the governors in those elections. Not even our claim that the NGO was representing thousands of their members who voted at those elections were convincing enough to me as their lawyer.
See: Suit Nos: FHC/ABJ/CS/901/2018; FHC/ABJ/CS/943/2018; FHC/ABJ/CS/940/2018 between INCORPORATED TRUSTEES OF ADVOCACY FOR CHANGE AND SOCIAL VALUES NETWORK VS INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS at the Federal High Court siting at Abuja.
After evaluation of the preliminary objection (PO), I prevailed on the Court to give judgment in the main suit as well as the PO, so that the Court of Appeal and Supreme Court may have the opportunity of pronouncing on the legality of a defection by a Governor. Unfortunately, too much pressure from the PDP, the Federal High Court delivered Ruling on the PO alone. There was no basis for proceeding on such appeal. And those governors got away with that. I knew a day will come when my arguments will be upheld in the interest of our democracy and constitution.
In the Umahi’s case, the PDP as a party brought the action as the winner of the election, and repeated over 85% of my arguments and position in the said cases against them. Today, judgment has been delivered against Umahi. I think the judgment is in line with the spirit and letters of our constitution. Unlike the legislators, there is no room in our constitution for a governor elected under a political party to defect from the political party that canvassed for votes and won the election to another political party that neither canvassed for his vote nor won the election, and then still retains the position. That is absurd.
That is the highest form of electoral fraud against the system and the electorate. If that is allowed to continue, one day you will find a situation where a political party which was not in existence at the time of the election (registered after an election) would end up becoming the beneficiary of an election it did not participate in OR a party rejected by the electorates in polls may end up returning to power simply by wooing the president or a governor. That is not the intendment of constitution.
However, I have reservations and vehemently disagree with the ORDER made by the FHC to the effect that PDP should submit another name to INEC for declaration as governor and deputy governor. That order itself is neither supported by the constitution nor the Electoral Act 2011 (as amended), the applicable law for that election.
EXCERPTS OF OUR ARGUMENTS IN THOSE CASE IN RESPECT OF THE PROPER ORDER TO BE MADE
The proper order that a Court should make in a situation where the Governor and the Deputy Governor defect to another political party is one directing the INEC to conduct a bye election to elect a Governor and Deputy Governor for the completion of the unexpired term, in accordance with the provision of the Constitution. See Section 191(2) of the Constitution. However, where only the Governor defects, leaving behind the Deputy Governor, the proper order should be one directing the Deputy Governor to fill the vacancy [Section 191(1) of the Constitution], to restore the supremacy of the Constitution.
Here are some reasons why this is the appropriate order for a court to make in the circumstance. Firstly, should it be held that the political party that sponsored the Governor won the election and thus has a vested right over its victory, which of course is sound law, then that political party will be left with no candidates to replace the defected Governor and Deputy Governor. This is because whoever the political party will nominate would not have participated in that election and thus cannot be made Governor. See: Section 140(2) of the Electoral Act 2011 (as amended). In the same vein, the Court cannot compel the Governor who has resigned his membership of his original party to continue to associate with that party (section 40 of the Constitution). Secondly, should a Court hold that the Governor is the winner of the election (which is not sound law, in my opinion), the Court can neither compel the Governor against his will to continue to associate with his previous party to enjoy the party’s nomination in keeping with the section 177(c) of the Constitution, nor can the Court make a retroactive order to compel the new political party to renominate the Governor and for INEC to accept that outside the time prescribed by the Electoral Law (not later that 180day to such election) as to enable the Governor fulfil the constitutional conditional precedent which entitles him to the position of a Governor under the new political party.
It is a critical consideration in our jurisprudence that a Court of law should not, either expressly or impliedly, by action or inaction, endorse self-help or anarchy. Nigerian Politicians are taking advantage, of the obscurity and insufficiency of laws that inhibits independent legal rights of the electorate to challenge electoral malfeasance and improprieties, to perpetuate illegalities and violation of the grund norm (Constitution). The electorates have a right to vote for their Governor through various political parties of choice, and the majority exercise that choice in favour of a particular political party. To deprive them that right and choice, just by one man acting under self-interest, does not augur well for our democracy, more so where it is unconstitutional. The defection of a Governor inflicts serious legal injury on the electorate, and they should not be allowed to suffer without a remedy. Assuming the Constitution did not provide any remedy for the electorates, but the action (defection) of a Governor is established as unconstitutional, as we know it, the Courts should take the bull by the horns and under its inherent powers make orders that would right the wrong done to the electorates. This is the only way the Court can rebuild citizens confidence and prevent a predictable anarchy that looms someday. This submission is based on the legal principle of: ubi jus ibi remedium. Where there is a wrong there is a remedy.
The Supreme Court adopted this principle in the case of Amaechi v Independent National Electoral Commission (2008) LPELR-446(SC) where it held that:
“As for the order that I ought to make, I must say that this Court has wide jurisdiction to make consequential orders and to grant reliefs which the circumstances and justice of a case dictate. On the principle of ubi jus ibi remedium, if the Court is satisfied that a person has suffered a legal injury, it will surely provide a remedy irrespective of the fact that no remedy is provided either at common law or by status. In Oyekanmi v. N.E.P.A (2000) 15 NWLR (Pt. 690) 414 this Court per Onu J.S.C. said p. 444: “On the principle of “ubi jus ibi remedium” in Bello and 13 Others v. A.-G., Oyo State (1986) 5 NWLR (Pt.45) 828 at 890 this Court per Oputa, J.S.C held that if from the facts available before the Court it is satisfied: (i) that the defendant is under a duty to the plaintiff; (ii) that there was a breach of that duty; (iii) that the defendant suffered legal injury; (iv) that the injury was not too remote, it will surely provide a remedy i.e. create one irrespective of the fact that no remedy is provided either at common law or by status.” In this case, it is an incontestable fact that the 3rd respondent did not comply with Section 34(2) of the Electoral Act, 2006. The law is an equal dispenser of justice and leaves no one without a remedy for his right.” Per Katsina-Alu, J.S.C (Pp. 96-97, paras. B-A)
Per Karibi-Whyte, JSC in applying same principle puts it thusly in BELLO & ORS v. AG OYO STATE (1986) LPELR-764(SC)
“I think it is erroneous to assume that the maxim ubi jus ibi remedium is only an English Common Law principle. It is a principle of justice of universal validity couched in Latin and available to all legal systems involved in the impartial administration of justice. It enjoins the courts to provide a remedy whenever the Plaintiff has established a right. The Court obviously cannot do otherwise. It is enjoined to eschew reliance on technicalities in the determination of disputes -see State v. Gwonto & Ors (1983) 1 SCNLR. 142 at p. 160. The substance of the action rather than the form should he the predominating consideration. Appellants have relied on the decision of this Court in Falobi v. Falobi (1976) 1 N.M.L.R. 169. 171 to argue that even if the writ of summons and statement of claim had not specified a particular law under which the action was brought, the Court will give a remedy where the facts as disclosed fall within a remedy recognised in law. I think this is a correct principle deducible from Falobi v. Falobi (supra).” P. 70, paras. A-E )
Denying and depriving the electorates of their preference for a particular political party, as expressed through their votes, and then the right to subsequently re-elect another Governor and Deputy Governor to complete the unexpired term truncated by the unconstitutional action of one man in the name of defection, will be unjust and unfair, especially where the remedy (bye election) would not occasion any injustice on any of the parties, be it the Governor himself, his original political party, or his new political party. The Governor and both political parties will have the opportunity of canvassing and presenting themselves again to the electorates and the electorates will also have an opportunity of voting a political party of their choice that will govern them for the unexpired term.
This is a call to the relevant stakeholders in the administration of our electoral system, including those in the justice sector, to do everything necessary to abate this kind of electoral fraud. Any politician who feels sufficiently aggrieved with his subsequent treatment by a political party that sponsored him to the office Governor, should either resign his position as governor or wait patiently till the end of his term.
Achinike William-Wobodo
Lawyer
