Dissecting the Constitutionality or Otherwise of the Judgement of the Federal High Court in PDP v. INEC & Ors (FHC/ABJ/CS/920/2021)

Contributor: Toheeb Adeagbo Esq.

According to Kelsen’s Pure Theory, law is a system of rules founded on hierarchy that makes some rules superior to others wherein some find their validity and life from others until they attain a certain level of superiority that metamorphoses to a greater law, known as the grundnorm.^[1] The Nigerian Legal system is not amiss of this age-long theory as it is replete with laws, statutes, and regulations that govern the actions of the three arms of government. Albeit, the Constitution of Federal Republic of Nigeria of 1999 (as amended) remains the fons et origo as all other laws derive their validity from it.^[2]

To this end, it is pertinent to state that the three arms of government were created by the Constitution, with their constitutional functions clearly defined.^[3] The Constitution details the eligibility to take office, the office’s lifespan, and the situations and circumstances under which a person’s term in office can be truncated in accordance with the Constitution’s procedural prescriptions.^[4]

The principal aim of this article is to humbly dissect the judgment of the Federal High Court in PDP v. INEC & Ors delivered on the 8^th of March, 2022 which sacked Governor David Umahi and his Deputy from office on their defection from APC to PDP vis-à-vis the extant provisions of our constitution.

THE FACTS

The 3^rd and 4^th Defendants are the sitting Governor and the Deputy Governor of Ebonyi State serving their second term in office. As a pre-requisite for contesting the office in line with the Constitution, they were sponsored by the Plaintiff in the elections that brought them in 2015 and 2019. Sometimes in 2020 and subsequently in 2021, the duo announced their defection to the 2^nd Defendant (APC).^[5]

Following their defection, the PDP instituted an action by way of Originating Summons asking the Court to interpret Sections 1(1) and (2), 177, 179(2), 187(2), 221 of the Constitution and ultimately asked the court for an order that the 3^rd and 4^th Defendants should vacate their respective offices.

The Defendants filed their respective Counter-affidavits (defences) alongside a Preliminary Objection contesting the jurisdiction of the Court to hear and determine the matter for reason that the 3^rd and 4^th Defendants are sued in their personal capacities while still in office which is against the dictates of the Constitution.^[6]

THE RATIO FOR THE DECISION OF THE FEDERAL HIGH COURT

The parties framed different issues for determination, but the Court formulated a sole issue for determination to wit:

“What is the constitutional effect of the defection of the 3^rd and 4^th Defendants from Peoples Democratic Party (Plaintiff) to All Progressive Congress (2^nd Defendant) having been elected Governor and Deputy Governor respectively of Ebonyi State on the platform of the Plaintiff by the votes given to the Plaintiff by electorates in the governorship election of 9^th March, 2019?”

The Court resolved the above issue upon the following ratios:

1. That immunity in Section 308 of the Constitution is not absolute and does not apply to the instant case, thus the 3^rd and 4^th Defendants cannot hide under same because the cause of action cannot wait till the end of their tenure;
2. That the votes in an election are for the political party and not the candidate and thus same is not transferrable to another political party on the authority of Amaechi v INEC;^[7]
3. That the Constitution in Sections 68 (1)(g) and 109 (1)(g) provides for the constitutional effect of the defection of a member of the National Assembly and State House of Assembly respectively and there is no such constitutional provision in respect of a Governor or Deputy Governor but it should not be celebrated.

ANALYSIS OF THE RATIO OF THE FHC

Given the prevailing political realities, it is difficult to fault the FHC’s decision to remove the 3rd and 4th Respondents from their positions as Governor and Deputy Governor of Ebonyi State, respectively. However, with a thorough and dispassionate evaluation of the judgment, particularly in light of the constitutional provisions as well as relevant judicial authorities, it becomes a little more difficult to fully concur with the underlying reasoning of the court in arriving at the decision.

Section 308 of the Constitution provides for the scope of immunity as far as Nigeria is concerned. A proper analysis of this section will be incomplete without reproducing the section itself which provides as follows:

“(1) Notwithstanding anything to the contrary in this Constitution, but subject to subsection (2) of this section –

1. No civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office;
2. A person to whom this section applies shall not be arrested or imprisoned during that period either on pursuance of the process of any court or otherwise; and
3. No process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued;

Provided that in ascertaining whether any period of limitation has expired for the purposes of any proceedings against a person to whom this section applies, no account shall be taken of his period of office.

(2) The provisions of subsection (1) of this section shall not apply to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party.

(3) This section applies to a person holding the office of President or Vice-President, Governor or Deputy-Governor; and the reference in this section to ‘period of office’ is a reference to the period during which the person holding such office is required to perform the functions of the office.”

From the above, it is clear that the entire scope of Section 308 applies to persons holding the office of President, Vice-President, Governors and Deputy Governors only for the period of their stay in office.^[8] It is without doubt that the section has shielded the persons holding these offices from having suit brought against them. The provision of the section shall not however apply in civil suits instituted against them in their official capacities.^[9] Also, in line with the spirit of Section 308(2), the shield of the section shall not apply in any matter in which any of the persons have been sued as a nominal party.^[10]

It is noteworthy to state that the first point of contact in the section is the “notwithstanding anything to the contrary in this Constitution” that introduces it. The Black’s Law Dictionary defines the word ‘notwithstanding’ as follows:

“1. Despite; in spite of…2. Not opposing; not availing to the contrary.”^[11]

The word has also enjoyed judicial interpretation in the case of NDIC v Okem Enterprises Ltd,^[12] where it was held that when the word ‘notwithstanding’ is used in a Section of a Statute, it is meant to exclude imaginary or impending effect of any other provision of the statute or other subordinate legislation so that the said Section fulfill itself.^[13] Likewise, in Attorney General of the Federation v Abubakar,^[14] the Supreme Court pronounced that:

“Where the word ‘Notwithstanding’ is used in any clause, that clause should be construed as a term of exclusion.”

The foregoing navigates strongly to the position that Section 308 applies to the exclusion of any other provision of the Constitution. In fact, in Attorney General of the Federation v Abubakar,^[15] the apex Court opined that the Section is absolute:

“I am of the opinion that restriction on legal proceedings whether civil or criminal against any person to whom Section 308 of the 1999 Constitution applies, is absolute during his period in office…”

The holding of the court in that case leans towards the firm position that Section 308 is absolute and it is not weakened by any statute. Same has been re-echoed in numerous cases_ Abacha v FRN,^[16] Global Excellence Communications Ltd & Ors v Duke,^[17] I.C.S. (Nig.) Ltd v Balton B.V.,^[18] Tinubu v I.M.B. Securities Plc,^[19]EFCC v Fayose & Anor,^[20] Udom v FRN & Anor^[21] the judicial consensus reached is that the immunity against criminal and civil proceedings granted to serving state Governors and their deputies in Nigeria is absolute.

It should be mentioned that the Courts have not failed to state that though Section 308 is absolute, but the spirit of the section can only be satisfied if the conditions provided are entirely followed given the provision of Section 308(2). In Tinubu v I.M.B Securities Plc,^[22]

“No dispute…with regard to subsections 2 and 3 of Section 308 of the Constitution under consideration. Both subsections are clear enough. Section 308(2) exempts the application of the provision, of Section 308(1) to civil proceedings against a person to whom Section 308 applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party.”

Also, in Media Tech (Nig.) Ltd v Lam Adesina^[23] the Court held that the Respondent therein is shielded from being prosecuted civilly or criminally while still occupying the office of Governor but that the Respondent as Governor, could institute action against any other person or persons in his personal capacity.^[24]

At this juncture, it is pertinent to put to the fore the Federal High Court’s holding that Section 308 does not apply to the case. The Court stated in pages 48-49 of the judgement as follows:

“The civil or criminal proceedings envisaged in S. 308 of the 1999 Constitution (as amended) are those cases where causes of action are such that can still be enforceable after the tenure of the persons mentioned therein. In this case, the cause of action and the remedy thereof cannot wait till the 3^rd and 4^th Defendants leave office. Therefore, the immunity in S. 308 of the 1999 Constitution (as amended) cannot be said to be absolute…I find that this case is not such that is prohibited by the provision of S. 308 of the 1999 Constitution (as amended) and I so hold.” (Emphasis supplied)

The Court has rested its holding on the position that the cause of action in the case cannot wait till the end of the 3^rd and 4^th Defendants leave office as the cause of action can no longer be enforceable. It is thus important to restate that the cause of action is on the legality of the 3^rd and 4^th Defendants’ defection from PDP to APC. In other words, the cause of action is to contest the validity of the continuous stay in the offices as the Governor and the Deputy Governor of Ebonyi State. It can thus be well accepted that waiting till the end of the stay in their respective offices, the cause of action would have been overridden by event and the declarations that would be made by the Court by then will be totally of no use.

It is germane to note that cause of action has been described by the Court in Mrs. Matilda Aderonke Dairo v Union Bank of Nigeria & Anor, ^[25] as follows:

“Cause of action is a combination of facts or circumstances giving the plaintiff a right to sue. It comprises of two elements namely: (a) the defendant’s wrongful act and (b) the consequential damage suffered by the plaintiff’’.

Furthermore, on the authority of Bello v Attorney-General of Oyo State,^[26] such facts or circumstances that give the plaintiff right to sue must constitute the ingredients of an enforceable right. The Court pronounced:

“Thus, the factual situation on which the plaintiff relies to support his claim must be recognized by the law as giving rise to a substantive right capable of being claimed or enforced against the defendant. In other words, the factual situation relied upon must constitute the essential ingredients of an enforceable right or claim.”

In this case, PDP has instituted the suit based on the 3^rd and 4^th Defendants’ wrongful act of defection to another party and in consequence, they (PDP) have lost the seats of the Governor and that of the Deputy Governor of Ebonyi State. Unfortunately, nowhere in the Constitution is defection a wrongful act for a holder of an Executive office; President, Vice-President, Governors and Deputy Governors. The only persons that defection clearly remains a wrongful act for are the members of the National Assembly and that of the Houses of Assembly of various States by the clear and unambiguous provisions of Sections 68 (1)(g) and 109 (1)(g) of the Constitution.

It is humbly submitted that the Plaintiff does not have a cause of action as defection of a Governor and his deputy is not a wrong that can be brought against them in the light of the Constitution. It is thus difficult to reconcile the decision of the Federal High Court with the Constitutional provision already highlighted above and the legions of judicial interpretations that have enunciated the absolutism of Section 308 in our law.

The second leg of the ratio borders on the position that it is the political party that owns the total votes cast in an election and same is not transferrable to any other political party based on the decision in Amaechi v INEC.^[27] It is noteworthy to state that it was as a step towards curing the mischief in the decision of Amaechi v INEC that led to the enactment of the Electoral Act 2010. To this end, Section 141 of the just repealed Electoral Act 2010 provide as follows:

“141- An Election tribunal or court shall not under any circumstance declare any person a winner at an election in which such a person has not been fully participated in all the stages of the said election.”

Taking judicial notice of this, the Supreme Court in Wada v Bello^[28] mentioned that

“Section 141 of the Electoral Act, 2010 (as amended) is meant to pre-empt the tribunal or court to which it applies from declaring a petitioner who has not satisfied its provision a winner at an election the result of which he disputes by filing an election petition…Section 141 of the Electoral Act, 2010 (as amended) was a legislative response to the decision of the Supreme Court in the case of Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) 227…the mischief it is meant to cure is the declaration of a petitioner who had not complied with its provision as a winner of election contrary to the declaration of the respondent by the Independent National Electoral Commission as the winner.”

Unfortunately, Section 141 of that Electoral Act 2010 has been declared unconstitutional in Labour Party v INEC (Unreported),^[29] the Federal High Court has declared the section to be inconsistent with Sections 134 and 179 of the Constitution. The Supreme Court in Wada v Bello also stood firm by it as it pronounced on the effect of striking out of Section 141 of the Electoral Act, 2010 in the following words:

“If a court of competent jurisdiction, in a proceeding in which the validity of a piece of legislation is in issue, strikes out that piece of legislation, then as long as that order has not been set aside by a court that has jurisdiction to do so, that order binds all courts, whether below or above the court that made that order in the hierarchy of courts. In the circumstance, section 141 of the Electoral Act, 2010 (as amended) has ceased from the date of the judgment of the Federal High Court in the case of Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) 227 to be part of Nigerian law since it has not been set aside by a court of competent jurisdiction.”

To this end, the case of Amaechi v INEC where it was held that the votes cast in an election all belongs to a political party and same cannot be transferred to another political party.

The third leg of the decision of the court is the court making the effect of Sections 68 (1)(g) and 109 (1)(g) of the Constitution to extensively applicable to Governors and Deputy Governors who defect from their political party. As pointed out earlier, the provisions of Sections 68 (1)(g) and 109 (1)(g) of the Constitution are clear to the effect that the constitutional aftermath of the defection of members of the National Assembly and State House of Assembly is the loss of the seat. In the golden words of Niki Tobi, JSC in the case of Olafisoye v FRN^[30] that:

“where a Constitutional provision is clear and unambiguous and the Courts read into them so-called implied terms, the Courts will be going outside their interpretative jurisdiction and will be branded as making law in a bad way”.^[31]

It cannot be overstretched that where the words of the Constitution are clear and unambiguous, there is no further need to give them any other meaning than their ordinary natural and grammatical meaning. In our humble view, this is the tenet that the Federal High Court should have directed its mind to while interpreting Sections 68 (1)(g) and 109 (1)(g). Though the court conceded that the provisions and the constitutional effects do not apply to Governors and their deputies but went ahead to make an order for the 3^rd and 4^th Defendants to vacate their offices as the Governor and the Deputy Governor of Ebonyi respectfully. By this order, the Court has impliedly inserted and extended the application of these sections to be applicable to Governors. It is our respectful submission that the Court does not have the constitutional mandate to extend the application of any provisions of the Constitution but to interpret and give them their ordinary meanings where they are unambiguous. In fact, the sections have expressly and specifically mentioned the persons to whom they apply, so going by the interpretation canon of expressio unis est exclusio alterius which translates that the express mention of one excludes all others,^[32] the FHC ought not to extend same to Governor David Umahi and his deputy.

Thus, the FHC went outside the scope of its constitutionally stipulated jurisdiction by declaring the offices of the 3^rd and 4^th Defendants vacant by reason of their defection and the Court was also wrong by extending the provision of Section 68 (1) g of the Constitution to be applicable in its effects to Governors and their Deputies.

CONCLUSION

As at the time of writing this piece, the 3^rd and 4^th Defendants have filed their Notice of Appeal, Record of Appeal has been transmitted and thus the appeal on the judgment of the FHC has been entered.^[33] We await the decision of the Court of Appeal in the matter and hope that the Court offers some more clarity and certainty in this regard.

REFERENCE

1. Joseph Raz, ‘Kelsen’s Theory of the Basic Norm’: American Journal of Jurisprudence Volume 19, Issue 1, 1974, pages 94-95 <https://doi.org/10.1093/ajj/19.1.94> accessed on 09 March 2022 ↑
2. F.C.D.A v Ezinkwo (2007) All FWLR (Pt. 393) 95 at 115. ↑
3. Sections 4, 5 & 6; Chapters V, VI and VII CFRN, 1999. ↑
4. Ibid. Chapter VI ↑
5. PDP v INEC & Ors (Unreported) FHC/ABJ/CS/920/2021, page 16 ↑
6. Ibid. Section 308 ↑
7. (2008) 5 NWLR (pt. 1080) 227 ↑
8. Section 308(3) CFRN ↑
9. Ibid. Section 308(2) ↑
10. Ibid ↑
11. Bryan A. Garner, Black’s Law Dictionary, Tenth Edition, 2014, page 1231. ↑
12. (2004) 10 NWLR Pt. 880 pages 107 at 182-183 ↑
13. Ibid. ↑
14. (2007) LPELR-8995 (CA) ↑
15. Supra. ↑
16. (2014) LPELR-22014(SC) ↑
17. (2007) LPELR-1323(SC) ↑
18. (2003) 8 NWLR (pt. 822) 223 ↑
19. (2001) 16 NWLR (Pt 740) 670 ↑
20. (2018) LPELR-44131(CA) ↑
21. (2020) LPELR-51407 (CA) ↑
22. (2001) LPELR-3248(SC) ↑
23. (2005) 1 NWLR Pt. 908 page 461 at 475 ↑
24. Ibid. ↑
25. (2007) 16 NWLR (Pt 1059) 99, p. 166 (paras B- C) ↑
26. (1986) 5 NWLR (Pt, 45) 828 ↑
27. Supra (Footnote 7) ↑
28. (2016) 17 NWLR (Pt.1542) 374 SC ↑
29. Suit No: FHC/ABJ/CS/399/2011 ↑
30. (2004) LPELR-2553(SC) ↑
31. Ibid. pages 54-55 ↑
32. Shinkafi & Anor v Yari & Ors (2016) LPELR-26050(SC) page 27 paras. B-C; Ehuwa v Ondo State Independent Electoral Commission (2006) LPELR-1056(SC) pages 20-21 paras. D- C ↑
33. <https://punchng.com/why-umahis-motion-for-stay-of-execution-was-struck-out-by-court-nwaeze/ > Accessed on the 22-03-2022. ↑