This case has it origin in the defection of Governor David Umahi from PDP to APC. Umahi was lured to APC in November 2020. He was actually elected on the platform of PDP in 2019. Although there have been many cases of defection by other Governors, this particular defection agitated the PDP which led to it’s law suit seeking a determination of who owns the votes between PDP and Umahi and invariably who should be in the office.
There are a number of legal issues upon which the case oscillates. One important issue worthy of mention is the question of who owns the votes cast at the election? There are two school of thought. There is a school that support the Political Party as owner of all votes cast. There are those who speak in favour of candidates. They maintained that votes are casted for a candidate and not political party. According to this thought, a candidate will therefore continue to benefit of the votes he scored at election irrespective of his subsequent decision to abandoned the platform or political party that sponsored him for the election. There are of course a number of decisions of the Court that tacitly support this view. I will refer you to just one to drive home the point. That is the famous Atiku cases. In the case of AG FEDERATION & ORS v. ABUBAKAR & ORS (2007) LPELR-3(SC) the seat of the former Vice President was declared vacant for defecting from PDP to AC, the Supreme Court reluctantly upheld his contention that his his seat is not vacant on a very narrow ground. Be mindful of the choice of words because in law, one word can make all the difference.
The issue in this case was whether Atiku’s act of leaving the sponsoring party that is PDP for another political party that is AC, coupled with public denunciation and condemnation of the sponsoring political party, the President and their Government do or do not constitute constructive resignation, withdrawal or abandonment of the office of the Vice President.
The Supreme Court however per SUNDAY AKINOLA AKINTAN, J.S.C approached the issue on the question of whether the President can declare the seat of the Vice President vacant or remove him from office for defecting to another political party. The Supreme Court made two crucial findings:
1. It stated that Atiku was wrong to defect. It held as follows:
“The Court below was therefore wrong in holding that the 1st respondent could, while the Vice President still retained his office as Vice President, openly criticize the same government; or join another political party and start to campaign for election to the office of President. The action cannot be justified by the fact that he (1st respondent) had been suspended or expelled from the ruling political party under which he was jointly elected with the President or that he was exercising his fundamental right of association guaranteed by the Constitution. What is required of him is to first resign and even after resigning from that office, he would still be precluded from dissociating himself from the collective responsibility for decisions taken by the cabinet while he was in office.
Thus, the Supreme Court finding was that in fact, he was wrong to defect. In law where there is a wrong there must be a remedy. The law cannot be helpless.
2. The second important finding by the Supreme Court was that ” In spite of the above, it is not the duty of the court to pronounce on his behaviour or actions or declare his office vacant. But that decision is that of the National Assembly. ”
Thus, the Court declined jurisdiction and push the job to National Assembly to commence removal proceedings against Atiku for his wrongful or political sin of defection.
In order words, the Court agreed that it was wrong to defect from the sponsoring political party but the decision to remove President or Governor from office should be left for the National Assembly or House of Assembly as the case may be.
This case does not answer point blank who owns the votes cast at election and what happens if there are is contention or dispute as to ownership of those votes between the party that won the election and the candidate. The position that the Court has no jurisdiction on removal or impeachment proceedings can not be useful in this case as there is a real dispute as to who owns the votes between PDP and Umahi. It is simply a dispute between a corporate individual and natural person that can be accommodated under section 6 of the Constitution.
Fast forward to the case of WADA & ORS v. BELLO & ORS (2016) LPELR-47015(SC) it was the theory that votes belong to political parties that was sustained. In this case it was decided by the Supreme court thus:
I think that the decision of this Court in Amaechi v. INEC (supra), encompasses the situation created by the death of the 2nd respondent’s candidate. The decision finds support in Section 221 of the Constitution (supra) hereunder reproduced: “S.221: No association, other than a political party, shall canvass for votes for any candidate at any election or contribute to the funds of any political party or to the election expenses of any candidate at an election.” A political party is an abstraction. It has to canvass for votes through its members as agents, in the same way it contests, wins or loses elections through a candidate it nominates who acts as its agent. There is no provision for independent candidates. The candidate nominated to contest at an election by his party acts as an agent of his party. *He is, as it were, an agent of a disclosed principal and as far as third parties are involved, benefits and liabilities accruing to the candidate (as agent) belong to his party (the disclosed principal).*
If an agent (candidate) of the party dies, or withdraws from the contest, the political party can substitute the dead candidate or the candidate who has withdrawn from the election with another candidate (agent) subject to the provisions of the Act. There is continuity as the new candidate starts and continues from where the previous candidate stopped.
Thus, the vehicle which is the political party keeps moving though different persons may be passed the steering to keep the car moving on track.
It should be noted however, that in the case of David Umahi, there is no express provision of the Constitution on what amounts to resignation or what steps should be taken in the case a Governor wishes to resign. There is therefore a lacuna in law which the court may be required to resort to doing justice according to the spirit and principles of the Constitution as against express provision that is not available. The earlier decision of the Supreme Court that defecting from sponsoring political party does not amount to resignation may not be conclusive as resignation was not the main issue considered in that case but removal. Further, there was no dispute about ownership of the votes cast. It was a case filed by Atiku Against Obasanjo contending that Obasanjo cannot remove him from office. This is different from this case where PDP is laying claim to it’s votes. There is a world of difference between removal and resignation. The constitution has elaborate provisions on removal which is the function of House of assembly in the case of Governor as provided in section 188 but merely mentioned resignation in section 180(1)(c) as mode of ceasing to be Governor without any further particulars.
Unfortunately, even the Interpretation Act does not make provision for resignation to fill in the gap in the Constitution. Thus, a resort to sound constitutional principles of our democracy may not be out of order. Therefore, a resort to resolution of the Supreme Court in Yahaya Bello’s case that votes casted belong to the political party for the purpose of taking benefit or liabilities of such votes is in order. Thus, the requirement for qualification to be Governor must remain through out the term of office. If you loose a requirement then you have lost the foundation to stand. It is for this reason that the Constitution requires a Governor who lost mental capacity to be removed. By parity of reasoning the requirement that a Governor must be a member of a political party and sponsored by that party must be met through out the period in office. You cannot divorce your wife and still enjoy her claiming conjugal rights at night. Leave her and leave the “oza room”.
In the absence of any specific legislation, the Federal High Court is in good footing to rely on previous judicial precedent to hold that the 393, 042 votes casted to the PDP in 2019 election belong to the PDP alone and cannot be transferred to APC. Incidentally in PDP v. INEC Buni Haruna of Adamawa was allowed to inherit the votes of his Party PDP when Atiku left vacant the Governor’s seat without resignation to become Vice President. The argument that Umahi has immunity and should not be sued is a big joke. The law is settled that once your seat as Governor is challenged, then your immunity is challenged and cannot be a cover for you. This is why I was able to summon a Deputy Governor a couple of years back when I was doing a Petition against him. His argument on immunity was discarded with wave of hand. It is also preposterous to suggest that this type of dispute between political party and it’s erstwhile candidate over ownership of votes be referred to House of Assembly. The House of Assembly has no jurisdiction to determine this question. It is a suitable dispute for the court to exercise jurisdiction. Thus, head or tail, the case is within jurisdiction of the Court.
What is however confusing from newspaper report of the judgment of the Federal High court is the allusion to suppose alternative orders made by the Court. With profound respect to the Court, if the report is anything to go by, it fell into grave error making alternative orders that PDP should nominate fresh Governor and Deputy Governor or INEC should conduct fresh election. This has set in confusion and rendered the judgment ambiguous without knowing which specific order to obey. It would have been neater for the Court to make one bold stand of making one specific order. As it stands, it appears the Court is submitting it orders to whims and caprices of the INEC or PDP to decide what happens as we do not know which of the alternative orders they may pick to obey. That should not have being. Least I forget this decision and the earlier decision of the Federal High Court on Zamfara State which ran contrary to this are all appealable and subject to review by the Court of Appeal. They may also end up in Supreme Court where a final decision will be made.
For now, it is enough, logical and sound to remember that in a battle between the political party and candidate as to who owns the votes cast at election, the law will favour the political party. This is also in accord with new proviso to section 136(2) of Electoral Act 2022.
I shall be reviewing the provisions of the new Electoral Act 2022 this Saturday and Sunday. Keep following for update.
P. D. Pius, Esq
Abuja, Nigeria
piusdanba@gmail.com
