By Mustapha Babalola Toheeb.

The Federal High Court in Abuja presided over by Honourable Justice Inyang Ekwo, ordered the sack of Engineer David Nweze Umahi and Dr Eric Kelechi Igwe, the Governor and Deputy Governor of Ebonyi State, respectively, on Tuesday, March 8, 2022, while delivering judgment in Suit Number FHC/ABJ/CS/920/2022 filed by the People’s Democratic Party.

The court’s decision is based on its interpretation that votes obtained during elections belong to the Political Party that sponsored the candidate, as stated in Section 221 of the Federal Republic of Nigeria 1999 Constitution (as amended). According to the court, the Governor and his Deputy cannot constitutionally transfer votes gained under the PDP platform to the APC, their new political home, because they defected from the political party through which they were elected. By no stretch of the imagination, section 221 of the Constitution can be read to indicate that votes cast in an election belong to political parties. According to this provision, only political parties can canvass votes for any candidate in an election. Simply put, canvassing implies asking for or seeking support. The responsibility of the Political Party is to beg for votes on behalf of its candidate because the language of the Constitution is so plain and unequivocal. A benefit received on someone’s behalf belongs to the person on whose behalf it was secured, not to anybody else.

The question of whether the office of Governor or Deputy Governor of a State becomes vacant when the holder of the office decamps from the Political Party on whose platform he was elected is central to the debate, and it can only be resolved once we figure out who owns the vote: the political party or the candidate.

A brief examination of the views expressed by legal luminaries across the country reveals two distinct schools of thought on the subject. First, a school believes that the Political Party owns all of the votes cast during the election. The argument that votes belong to political parties was upheld in the decision of WADA & ORS v. BELLO & ORS (2016) LPELR-47015(SC). The Supreme Court ruled in this case as follows:

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 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.

As a result, the vehicle, which is the political party, continues to move even though the steering wheel may be passed from person to person to keep the car on track.

The opposing school of thought, on the other hand, believed that the votes belonged to the candidate, and also the appellate courts have often concluded that votes cast in an election belong to a candidate, not to the political party, which only serves as a vehicle for enthroning candidates. They advocated that voters cast votes for candidates rather than political groups. According to this notion, a candidate will benefit from the votes he earned during the election even if he later abandons the political party that backed him during the campaign. Of fact, there are a lot of court decisions that support this point of view. The well-known Atiku case is an example of this. In AG FEDERATION & ORS v. ABUBAKAR & ORS (2007) LPELR-3(SC), the former Vice President’s seat was declared vacant. Still, the Supreme Court unwillingly maintained that his seat was not vacant on a very narrow ground (SC).

The court agreed that abandoning the sponsoring political party was wrong, but that the National Assembly or House of Assembly, depending on the case, should have the power to remove the President or Governor from office. This judgement does not address the issue of who owns the votes cast in the election and what occurs if the victorious party and the candidate disagree or disagree about who owns those votes. Because the PDP and Umahi are battling over who owns the votes, the claim that the court has no jurisdiction over removal or impeachment procedures is irrelevant in this case.

In the case of NGIGE V. AKUNYILI (2012) 15 NWLR (PT.1323) 343 @ 357-376, 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 political party…”.

In a recent decision, the Court of Appeal in the case of NWANKWO & ANOR v. INEC & ORS (2019) LPELR-48862(CA) held thus:

“…It is trite that it is only a natural person that can be lawfully declared and returned as a winner of an election. The Electoral Act, 2010 (as amended) only contemplates the declaration and return of a candidate in an election and not a political party”.

In C.P.C. v OMBUGADU (2013) 18 NWLR (Pt. 1385), the court stated unequivocally that individuals, not political parties, win elections.

In HARUNA v. APC & ORS (2019) LPELR-47777(CA), the Court of Appeal held thus amongst several others:

“In other words, parties do not contest, win or lose election directly; they do so by the candidates they sponsored and before a person can be returned as elected by a tribunal or court, that person must have fully participated in all the stages of the election starting from nomination to the actual voting.” Per UGO, J.C.A. (Pp. 12-27, Paras. F-F).

The court further held that:

“The implication of section 141 of the Electoral Act 2010 (as amended) is that while a candidate at an election must be sponsored by a political party, the candidate who stands to win or lose the election is the candidate and not the political party that sponsored him” Per UGO, J.C.A. (Pp. 12-27, Paras. F-F).

As a result, the Amaechi case has been overtaken by the 2010 modification to the Electoral Act and recent Court of Appeal and Supreme Court decisions, which have now vested the votes in the candidate rather than the political part.

In reacting to this landmark judgement, some have described the judgement of the Federal High Court as what we call “judicial activism” while some see it as “judicial rascality.” In the meantime, we await the verdict of the appellate courts on this matter, as their decisions would determine whether the decision of the Federal High Court was an act of judicial activism or a judicial rascality.

But before then, God bless Nigeria!

Mustapha Babalola Toheeb writes from Kano, Nigeria. To reach him, email: [email protected] or contact/WhatsApp: +2348106244073