Appeal Court says Gov Umahi, deputy can’t be removed from office for defecting

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David Umahi, can’t be removed, defecting, Appeal Court
David Umahi

Appeal Court says Gov Umahi, deputy can’t be removed from office for defecting

The Enugu division of the Court of Appeal has dismissed the suit seeking to remove Ebonyi State governor, Dave Umahi and his deputy, Dr Kelechi Igwe from office for defecting from the Peoples Democratic Party to the All Progressives Congress (APC).

The suit challenging their defection had been filed by the candidate of the APC in the 2019 governorship election in Ebonyi State, Senator Sonni Ogbuoji and his deputy, Chief Justin Ogbodo Mbam.

The court said the governor and his deputy cannot be removed from office on account of their defection to another political party. The court had been asked to declare their seats vacant because of their defection from the PDP to the APC.

On February 28, 2022, the Ebonyi State High Court sitting in Abakaliki struck out a suit challenging their defection and awarded N500, 000 as cost against the plaintiff.

Not satisfied with the judgement of the high court, Senator Ogbuoji and Mr Mbam approached the Court of Appeal to set aside the judgement of the lower court.

But Justice Olubumi Oyewole, who read the lead judgment from a 56-page document, said Governor Umahi and his deputy cannot be removed from office on account of their defection from one party to another. He also awarded N200,000 against the appellants.

Justice Ahmad Belgore and Justice Sybil Nwaka-Gbagi also agreed with the lead judgement.

Justice Oyewole said the provision for the removal of a governor and deputy does not include where such office holders defect from a political party on whose platform they were elected into office.

He held in his judgement, “It must be stated clearly that issues of votes are necessary for the determination of the winners of elections and popularity of political platforms. However, once the final determination has been made by the Returning Officer and subsequently by the appropriate tribunal and courts, where the outcome of the election was challenged, the elected office holder assumes their office and their removal must be in accordance with the provisions of the Constitution.

“Defection from one party to another may appear immoral or even improper but as well submitted for the Respondents, it must be acknowledged 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. 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 consequence 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.’’

Justice Oyewole said the situation of the legislative arm was different from that of the executive arm of government.

“Mr. Okorie did concede that much in his brief – that unlike the situation with elected members of the legislature, there is no express constitutional provisions relating to defection of elected executive office holders of the offices of president, vice president, governor and deputy governor. He however invited the court to fill the lacuna by extrapolating the consequences for elected members of the legislature and to accordingly order the 1st and 2nd Respondents to vacate their offices.

“The learned trial judge must be commended for rejecting this invitation which would have done incalculable damage to the rule of law and constitutionalism. Judicial activism must be guided by the rule of law”, he said.

Justice Oyewole said it is not the duty of the courts to make laws or speculate as to what the intention of the legislature would be outside the express words of the legislation, adding that any such exercise by the courts violates the principles of separation of powers.

He noted that the executive can only be removed subject to circumstances stated in sections 180, 188 and 189 of the Constitution.

He said the removal of elected members of the executive arm of government is substantially that of the legislature, and that where impeachment is contemplated, the role of the judiciary is limited to setting up the investigative panel.

“It needs also be pointed out that even in the case of members of the legislature who must suffer the consequence of loss of their seat, if found to have defected from the political party which sponsored them for election, the consequential order is for 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,” he said.

The judge therefore dismissed the appeal for lacking in merit and awarded N200,000 cost in favour of the respondents and against the appellants.

Last month, in a different suit filed by the opposition PDP against the governor and his deputy’s defection, the court had granted PDP’s prayers and asked the governor, his deputy and 18 state and federal lawmakers who had defected along with them to vacate office, but the governor had filed an appeal, which is yet to be heard in court.

 

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