April 07, (THEWILL) – The Federal High Court, Abuja, has dismissed a suit seeking to declare vacant, the governorship seats of Cross River State Governor, Prof. Ben Ayade, and his deputy, Prof. Ivara Ejemot Esu, over defection from the Peoples Democratic Party (PDP) to the ruling All Progressives Congress (APC).
Justice Taiwo Taiwo departed from an earlier judgement and held on to the decision of the Court of Appeal delivered on April 1, to the effect that defection of a Governor and his Deputy is not an offence under the Nigerian Constitution for now.
THEWILL recalls that a similar suits have been filed against Dave Umahi of Ebonyi State, another PDP Governor who defected to the APC.
While a High Court has ruled in favour of the PDP in the Umahi case, other judgements have favoured the incumbents. Although, the ruling is currently under appeal.
But Justice Taiwo Taiwo in his ruling on Thursday, held that governors and their deputies can only be removed from office in line with sections 180, 188 and 189 of the Constitution, which stipulated that they can only be removed from office on account of death, resignation or impeachment.
The judge held that since defection is not one of the Constitutional provisions, no court has power to insert such into the Supreme Law.
He, however, agreed that defection from a winning party to a losing one is immoral and improper.
“The point must be made that it is not the duty of the court to make law. If a gap is disclosed, the remedy lies in amending the act
“This court has no power to declare vacant the seat of the governor and deputy”, he said
Thursday’s judgement followed a suit filed by the PDP against the governor and his deputy, challenging their defection to the ruling APC.
The PDP, through its counsel, Emmanuel C. Ukala (SAN), had filed the suit marked: FHC/ABJ/CS/975/2021 before Justice Taiwo Taiwo to seek for an order sacking the governor and his deputy over their defection to the APC, among others.
The Independent National Electoral Commission (INEC) was joined as defendants.
Ayade was elected under the PDP in 2015 and 2019, but defected to the APC on May 20, 2021 along with his deputy, Prof. Esu.
Filing the application, the PDP had argued that the mandate given by the Cross River’s electorate in the 2019 governorship election was to the PDP.
It claimed that Ayade, who was the Party’s candidate in the election, cannot transfer the mandate to the APC or any other political party.
The PDP, therefore asked among others, “a judicial declaration giving the PDP an opportunity to nominate a replacement to the seat of the Governor and the deputy Governor in Cross River State.
“A declaration that in view of the provisions of section 221 of the Constitution of the Federal Republic, 1999 (as amended) and the democratic system of governance operated in Nigeria, votes at the election and elections are won by political parties and not their candidate or the candidates sponsored at the election by the political parties.”
The party had also asked for an order directing the1st defendant (INEC) “to immediately receive from the plaintiff (PDP), the name of its candidates to replace the 3rd and 4th defendants (Ayade and Esu) for the purpose of utilising the lawful votes cast in favour of the plaintiff or in the alternative, directing the 1st defendant to hold a gubernatorial election for Cross River State in accordance with Section 177 of the Constitution (excluding the 3rd and 4th defendants, who are disqualified from participating in the election by virtue of Section 192 (1) (b) of the Constitution) arising from abandonment of the majority lawful votes and the offices occasioned by the action of the 3rd and 4th defendants by reason of their becoming members of the 2nd defendant who did not win majority of the lawful votes cast at the election.
“An order directing the 1st defendant to immediately declare the persons nominated or to be nominated to it by the plaintiff as Governor and Deputy Governor of Cross River State…an injunction restraining the 1st defendant, its agents, privies, servants and assigns or any person howsoever from recognising and or continuing to recognise the 3rd and 4th defendants as Governor and Deputy Governor respectively of Cross River State or granting to them any right, benefit or recognition in relation thereto.”
In addition, the Party had sought an order of perpetual injunction, “restraining the 1st defendant, its agents, privies, servants and assigns or any person howsoever from recognising and or continuing to recognise the 2nd defendant (APC) as the political party whose members occupy the offices of Governor and Deputy Governor respectively of Cross River State on the strength of the 9th March 2019 election won by the plaintiff. Perpetual injunction restraining the 3rd and 4th defendants forthwith from putting themselves out or parading themselves as Governor and Deputy Governor respectively of Cross River State.
“An order of perpetual injunction restraining forthwith the 2nd defendant, its agents, privies, servants and assigns or any person whatsoever, from putting themselves out or parading themselves as the political party whose members occupy the offices of Governor and Deputy Governor respectively of Cross River State.”
