By Onikepo Braithwaite: The Advocate
Èlèkè Ebu’ (Cheeks that Abuse)
While I align myself with my professional body, the Nigerian Bar Association (NBA), on its admonition of Governor Umahi as a result of his undesirable remarks about Inyang Ekwo J. and the judgement he handed down which, inter alia, removed Umahi and his Deputy from office on account of their defection from PDP to APC, I can’t say that I am particularly surprised at his outburst. Governor Umahi has obviously learnt well from the feet of the ‘masters’, his fellow APC members/Government spokespeople who have a penchant for raining abuses and invectives on, and making uncomplimentary remarks about those who criticise their Government, or make statements that do not go down well with them.
I recall when Presidential spokeswoman, Lauretta Onochie, referred to Nigerians as ‘mannerless’, because many demanded to know the type of sickness that the President was suffering from when he was away in the UK for medical tourism for about 150 days, despite the fact that the Freedom of Information Act gives Nigerians the right to have their question answered. Similarly, the Minister of Information & Culture, Alhaji Lai Mohammed, roundly insulted CNN calling their journalism poor and one-sided, because of the role CNN played in uncovering and revealing the truth that the Army had been untruthful, and that indeed, some of the bullets fired by the soldiers during the unfortunate #EndSARS Lekki Tollgate incident of October 20, 2020, were in fact, real, live bullets, and not all blanks as the Army had claimed.
An Unsound Judgement
Be that as it may, the best way to politely express dissatisfaction with a judgement, or describe a judgement that may leave something or the other to be desired, is to state that you are going on appeal; such judgement is not sound, or that it is perverse or was reached ‘per incuriam’. And, the best step to take as a dissatisfied litigant in such a situation, is to immediately seek a stay of execution of the judgement and go on appeal, instead of insulting and denigrating the Judge and the Judiciary.
That is why there is an appeal process in the court system, in the first place. It is a recognition that litigants may not always be satisfied with the court’s decision, and may want to seek further redress until all available opportunities are exhausted upon the final decision of the highest court of the land (since it is trite that, there must be an end to litigation).
The Position of Things
Immunity from Suit and Legal Process
Firstly, and most importantly, Section 308(1) & (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2018 )(the Constitution) prohibits the institution of civil or criminal proceedings against the executive, that is, President, Vice President, Governor and Deputy Governor in their personal capacities during their tenure of office. See the case of Global Excellence Communications Ltd & Ors v Donald Duke 2007 LPELR-1323 (SC). It goes without saying therefore, that the court lacked the jurisdiction to hear this matter involving Governor Umahi and his Deputy, as they enjoy immunity from such suit and legal process in their personal capacities, as this matter was instituted in. See the case of Madukuolu v Nkemdilim 1962 2 SCNLR 341.
It is trite that, where a court lacks jurisdiction (‘life blood’ of a case) to hear a matter, no matter how well tried the case is, the proceedings therein to the extent of the court’s lack of jurisdiction, are null and void ab initio. Umahi’s Lawyers should simply have filed a notice of preliminary objection based on lack of jurisdiction, alongside the defence (they probably did); and the matter should have been dismissed accordingly. If the Lawyers did not raise the issue of jurisdiction, the Judge could have done so ‘suo motu’. However, since the court decided to hear the case on its merits, Umahi and his Deputy can go on appeal.
Right of Appeal/Judicial Review
Assuming that the court did have jurisdiction to entertain the suit against the Governor and his Deputy (which it didn’t), there are obviously grounds on which a dissatisfied litigant can file an appeal to a higher court. In Iteogu v LPDC 2018 LPELR-43845 (SC), the Apex Court stated three situations in which it could review its own judgement; these are also grounds on which an appeal can be filed to a higher court amongst others: 1) when the judgement was reached per incuriam; 2) when the judgement is erroneous in law; or 3) where the previous judgement is contrary to public policy or occasions a miscarriage of justice or perpetuates injustice. In the case of Adegoke Motors Ltd & Anor v Dr Babatunde Adesanya & Anor 1989 3 N.W.L.R. Part 109 Page 250 at 274, in the now famous words of Chukwudifu Akunne Oputa JSC (of blessed memory), he admitted that judgements may not always be apoditic when he stated thus about the Supreme Court, the highest court of the land: “We are final not because we are infallible; rather, we are infallible because we are final”. Ekwo J. is not infalliable, and luckily, his decision is not final!
Removal of a Governor or Deputy
Section 188 of the Constitution provides for the circumstances in which the Governor of a State or Deputy can be removed from office, and the process that must be followed in so doing; specifically the only reason stated therein, is gross misconduct (Section 188(2)(b) of the Constitution) which is clearly defined in Section 188(11) of the Constitution as “a grave violation or breach of the provisions of the Constitution or a misconduct of such nature as amounts in the opinion of the House of Assembly to gross misconduct”. Which provision of the Constitution did Governor Umahi and his Deputy breach by cross-carpeting?
Sections 68 (1)(g) & 109 (1)(g) provide only for the vacation of seats for the members of the Federal and State Legislative Houses, if they got elected on the platform of one party and thereafter defect to another, subject to certain provisos; so, while it may be easy to make a case for the vacation of seats of the members of the Ebonyi House of Assembly who chose to defect from PDP and follow Governor Umahi and his Deputy to APC, asserting that they have breached Section 109(1)(g) of the Constitution, there is no reason in law to say the same about Governor Umahi and his Deputy, for defecting from PDP to APC; at least, I am yet to find one. In any event, the issue of defection of the President, Vice President, Governor and Deputy Governor was settled in the case of AGF v Atiku Abubakar 2007 10 N.W.LR. Part 1041 Page 1 at 29. Also see the case of NEPA v Ososanya SC.17/2002 2004 5 N.W.L.R. Part 867 Page 601 at 624 on perverse judgements.
Further Lack of Jurisdiction
Additionally, apart from Section 308, in the matter of the removal of a Governor or Deputy (by the Panel that reports to the House of Assembly, or the House of Assembly itself), Section 188(10) clearly ousts the jurisdiction of the court. This was why in the case of the impeachment of the erstwhile Deputy Governor of Kogi State, Mr Simon Achuba, even though the process adopted by the Panel and the Kogi State House of Assembly was clearly faulty, nothing could really be done about it; and much to the chagrin of law abiding citizens, the then Chief Judge of the Kogi State, late Hon. Justice Nasiru Ajanah was constrained to swear in Edward Onoja as Achuba’s replacement after his impeachment by the Kogi State Assembly.
Conclusion
From the foregoing, the point to note is that the court cannot purport to remove Governor Umahi and his Deputy in these circumstances; they cannot be sued, the Constitution ousts the jurisdiction of the court in this matter, and they can only be impeached by the House of Assembly.
Therefore, it is safe to say that any court decision that purports to remove a Governor or Deputy from office (President or Vice President – see Section 143(2)(b), (10) & 11 of the Constitution) by reason of defection from the party that sponsored their candidature to another, can be said to have been reached ‘per incuriam’, that is, without due regard to the law, in this case, the Constitution, and the facts; and such judgement can be said to be erroneous in law. To be honest, such a decision ticks all the boxes enumerated in Iteogu v LPDC (Supra), and will hopefully be set aside on appeal.
Section 1(1) of the Constitution provides for the supremacy of the grundnorm and its bindingness on all persons and authorities in Nigeria, including the courts. No matter how lovely the principle behind Ekwo J.’s decision is, as stated by Professor Itse Sagay, SAN, it is unconstitutional. It is trite that, you cannot build judicial legislation based on unconstitutionality. Furthermore, the fact that the same restriction placed on the Legislature with regard to cross-carpeting is not placed on the Executive, means that the drafters of the Constitution did not mean for there to be such impediment for the Executive (expressio unios exclusio alterius – to express one is to exclude others). It is also trite that the provisions of the Constitution can only be added to or subtracted from by means of constitutional amendment, the process of which is provided for in Section 9 of the said Constitution. And, for those who say Governor Umahi’s certificate of return states that he is of the PDP, and now, he’s no longer of the PDP, so what? He was of the PDP at the time of the election. He was a member of the PDP and was sponsored by the PDP for that election, in fulfilment of Section 177(c) of the Constitution. The certificate of return, which simply evidences the fact that he won the election fair and square, does not insist that he must stay in the party that sponsored him for the election!