Mike Ozekhome: Judgment Sacking Umahi Cannot Stand Appeal Court Scrutiny

In his reaction Chief Mike Ozekhome, SAN,, said the judgment cannot stand the scrutiny of the Appeal Court.

“I am of the firm belief that the judgment, shredded of all legal and factual details, cannot stand the acid test of constitutionalism, nor pass the furnace of appellate courts scrutiny. This is because the tenure of office of a Governor and his Deputy are constitutional matters.

The judgment is said to have sacked Governor David Umahi and his Deputy, Eric Kelechi Igwe from their offices. He cited section 221 of the Constitution, which merely prohibits political activities by certain associations which are not political parties from canvassing for votes or contributing to elections expenses of any candidate at any election. The Judge ordered the PDP to immediately send names of replacements to INEC so that fresh elections can be conducted. He also ordered INEC to cease recognising Umahi and Igwe as Governor and Deputy Governor, respectively, of Ebonyi State.

The learned trial Judge further held that the 393, 042 votes polled by Umahi in the March 9, 2019 governorship election belonged to the PDP and cannot be legally transferred to the APC upon defection, and that there is no constitutional provision that made the ballot transferable from one party to another. He therefore order INEC to conduct fresh election in accordance with section 177(c) of the Constitution. Not so fast, the enforcement of this judgment. The Governor and his Deputy have 90 days to appeal this decision under section 25(2), (a) of the Court of Appeal Act, it is their right under sections 240 and 241, of the Constitution, the judgment being a final one.

THIS JUDGMENT CANNOT SURVIVE APPELLATE SCRUTINY

Perhaps, the Jurist’s learned attention was not drawn to appellate decisions on this type of matter, which under the doctrine of stare decisis and judicial precedent, he ought to have followed meticulously. He may also not have been availed of the clear provisions of sections 180 and 188 of the 1999 Constitution.

VOTES BELONG TO INDIVIDUALS, NOT POLITICAL PARTY

The appellate courts have since held again and again that votes cast in an election belong to a live candidate, and not the political party which merely serves as a vehicle that enthrones candidates.

The Judge in his Judgment had agreed with the PDP which relied on sections 221, 177(c), 106(d) and 65(2)(b) of the Constitution to substantiate its argument that votes belong to the political parties; and it is impossible for candidates to exist without a political party. The case of NGIGE V. AKUNYILI (2012) 15 NWLR (PT.1323) 343 @ 357-376, which came much later over rule this position. The court held in that case that:

“…it is my considered view that the Appellant in relying on the provision quoted above (section 211 of the Constitution), has conveniently lost sight of the underlined words which show that a political party canvasses for votes on behalf of the candidate. In other words that a political party is nothing more than an agent of the candidate in gathering votes for an election. It is my further view that is against the backdrop of this, that the Electoral Act (Supra) requires the candidate (and not the party of the candidate) that has the highest number of votes at an election to be declared as the winner of the said election and further provides for the means of challenging the return of the candidate (and not his his political party..”

He pointed out that Section 308 of the Nigerian Constitution grants absolute immunity to the President, Vice President, Governor and Deputy Governor while in office.

According to the SAN: “Consequently, no civil or criminal proceedings could ever sustain against this set of persons, whilst still holding office.

“Going by the above plethora of authorities, I humbly submit that a Governor already sworn in cannot be removed by the Federal High Court through an Originating Summons. It will surely be set aside on appeal.”