In this opinion article which he posted today on the CITY LAWYER WhatsApp platform, fiery Bar Leader and Election Petition lawyer, MR. JIBRIN OKUTEPA SAN argues that the Federal High Court lacks the constitutional power to unseat Ebonyi State Governor Dave Umahi

Today the a Federal High Court sitting in Abuja had ordered the Governor Ebonyi State Chief Dave Umahi and his Deputy Chief Eric Kelechi Igwe to vacate their offices on account of their defections from PDP to APC. The plaintiff in the matter was PDP. The learned trial judge based his judgment, from what I gathered from the news making rounds that the votes that brought the Governor and his Deputy to power were votes of PDP and not personal votes of the duo, and therefore the duo were not capable of transferring the votes to APC. Before I make further comments let me be clear. I am not a member of any of the Nigerian Political parties and I have no political affinity with any. My comments are purely to interrogate the constitutional validity of the decision and the jurisdiction of the court to make the orders and declarations it made.

This judgment on the superficial level seems very attractive and well intentioned to instill political sanity in our otherwise reckless political terrains. But beyond this and also scoring political debates, is there jurisdiction in the Federal High Court to make the orders it made, in the light of, and upon a dispassionate construction and interpretation of Nigerian Constitution 1999 as amended. I do not think so. I will therefore endeavor to draw our attention to the procedures for removal of governor and his deputy and the authority or institution that has jurisdiction to do so as provided in our constitution.

There is no dispute that the Nigerian Constitution provides that there shall be a governor and a deputy governor for each states of the Federation. See section 186 of the 1999 constitution. There is equally no doubt that for purposes of election to the office of the governor and deputy governor they do so on the platforms of political parties. This very much is conceded. But after elections, declaration and swearing in of the Governor and Deputy Governor, the Constitution has set out how they duo can be removed from office, who has the powers to remove them and which court can decide if their term of office has come to an end.

Section 188 of the 1999 Constitution deals with who can remove a Governor or Deputy Governor from office. It is the House of Assembly after following the due processes set out in the constitution. No matter the political iniquities committed by the Governor and his Deputy there is no jurisdiction in the Federal High Court to remove them from office or ordered their removal from office.

There is no power and jurisdiction in the Federal High Court to determine and declare that by constitutional misconduct of defecting to another political party other that the party upon which the Governor and the Deputy Governor were elected their seats had become vacant and to order the conduct of election to their offices. Jurisdiction to made post election declarations and orders as made by the Federal High Court is not in our constitution. Section 251 of the 1999 constitution as amended in subsection 4 limited the jurisdiction of Federal High Court to determine whether the seat of a member of House of Representatives has become vacant or that of members of senate.

It appears that the draftsman of our constitution did not contemplate that when a governor defects or his deputy then he or she must vacate the office. If that were to be the case, the constitution would have said so. See section 68(1) (g) of the 1999 Constitution. When there is a dispute whether the term of office of a member of House of Assembly, Governor or Deputy Governor has become vacant or that they have ceased to hold their respective offices by whatever allegations, only the state High Court has jurisdiction to entertain such complaints. See section 272 (3) of the Constitution.

Clearly from the reading of the entire Nigerian Constitution, it is submitted with respect that while one must celebrate the jurisprudential logic and reasoning in the judgment under review, which is thought provoking and accord with moral demands to see that our democracy is well nurtured and follow best international practices and standards, such logic and reasoning cannot be situated within any of the well known cannons of interpretations.

The Supreme Court set the cardinal principles governing the interpretation of constitutional provisions as enunciated in the case of Rabiu vs The State (1980) 8-11 SC 130, that Courts should whenever possible and in the interest of justice lean to the broader interpretation unless there is something in the text or the rest of the constitution indicating that the narrower interpretation will best carry out the objects and purposes of the Constitution. This very much his lordship Adekeye, JSC as he then was said in the case of the Attorney General of Nasarawa State vs. Attorney General Of Plateau State(2012) LPELR-9730(SC) at 62, paras. B-C) when his lordship said Constitution must be read as a whole to determine the object of particular provisions.

This is what the Supreme Court said: It is a settled principle of interpretation that whenever a Court is faced with the interpretation of a Constitutional provision, the Constitution must be read as a whole in determining the object of the particular provision. This requirement places a duty on the Court to interpret related Sections of the Constitution together. See Nafiu Rabiu v. The State (1980) 8 – 11 SC 130 at 148; (1980) 8 – 11 SC (Reprint) 85 and Bronik Motors & Anor v. Wema Bank Ltd (Supra). In Hon. Justice Raliat Elelu-Habeeb (Chief Judge of Kwara State) v. AG Federation & 2 Ors (2012) 2 SC (Pt.1) 145, this Court stated thus:- “The duty of the Court when interpreting a provision of the Constitution is to read and construe together all provisions of the Constitution unless there is a very clear reason that a particular provision of the Constitution should not be read together. It is germane to bear it in mind the objective of the Constitution in enacting the provisions contained therein. A Section must be read against the background of other Sections of the Constitution to achieve a harmonious whole. This principle of whole statute construction is important and indispensable in the construction of the Constitution so as to give effect to it.

Guided by the above decisions and other decisions of our superior courts of record, it is my submission that the decision of the Federal High Court in this case suffers seriously from jurisdictional fatalities and may not stand when challenged. The question of independent candidate does not arise in this case.

Clearly the constitution has set out how a Governor and Deputy can be removed from office after they had assumed duties. The law is that where the law has set out how a thing is to be done and in this case the Nigerian Constitution has set out how to remove Governor and Deputy only that procedures must be followed. This much the Supreme Court has said per Garba JSC. Hear Garba JSC.

“In IAL 361 Inc. v. Mobil Nig. Plc (supra), the law was restated at page 2 that:- “And the law is sacrosanct that where there is a non-compliance with a stipulated precondition for setting a legal process in motion, any suit instituted in contravention of the pre-condition provision of the relevant law, is incompetent and a Court of law, is for that reason, lacking in jurisdiction/power to entertain it.” The cases of Western Steel Works Ltd. v. Iron & Steel Workers Union of Nigeria (1986) 3 NWLR (pt. 30) 617, Ajanaktl v. C.O.P. (1979) 3 & 4 SC, 28, and Gambari v. Gambari (1990) 5 NWLR (pt. 152) 572 are cited and relied on for that position of the law. This Court, per Musdapher, JSC, (former CJN) in the case of Owoseni v. Faloye (2005) 14 N WLR (pt. 496) 719 at 740 had stated in the lead judgment, that:- “Now, in my view, the Court of Appeal is perfectly right in the statement of the law to the effect that where a statute prescribes a legal line of action for the determination of an issue, be it an administrative matter, Chieftaincy matter, or a matter for taxation, before going to Court.” Oguntade, JSC, in his concurrent decision emphasized at page 757, that: “It is important to stress that laws which prescribed that some procedural steps to be taken to resolve a dispute before embarking on actual litigation are not and cannot be treated or categorized as ousting of the jurisdiction of the Court. Indeed, if such laws do so, they would be in conflict with the provisions of the Constitution. Such laws, only afford the body to which such disputes must be referred to in the first instance an opportunity to resolve the dispute if it can before recourse to the Court. In other words, they serve the purpose of preventing actual litigation in Court where it is possible or desirable to resolve the dispute.” Then in Ogologo v. Uche (2005) 14 NWLR (pt. 945) 226 at 245, Belgore JSC (former CJN) restated, emphatically, that:- “Where a law has given exclusive power to a body to decide, the Court cannot come in before that body has exercised that power. Court can come in only where there is exhaustion of all remedies before that body and Court will then be able to decide whether that power had been exercised lawfully.” See also Okomalu v. Akinbode (2006) 9 NWLR (pt. 985) 338 (SC). From these authorities, it is clearly incontestable, legally, that where the provisions of a statute or law prescribe some internal mechanisms by which, remedies or reliefs for some grievance/s could be sought and to be followed or complied with by a party before instituting a legal action in a Court of law over the same grievance/s, the party has no discretion or option, but to exhaust all the remedies provided for by the statute or law first, before going to Court as the Court’s jurisdiction in such circumstance, will be put in abeyance pending the completion of the internal mechanisms for the remedies. I refer to ORAKUL RESOURCES LIMITED & ANOR V. NIGERIAN COMMUNICATIONS COMMISSION & ORS (2022) LPELR-56602(SC) Per GARBA, JSC at PP. 26-29, paras. D-A

Clearly the procedures adopted by the PDP in seeking the removal appears with respect outside of the contemplation of our constitution.

But let us wait and see what the other higher courts in the land will say, but until then it does not lie in the mouth of the Governor or his Deputy to say they will not obey the orders. Their remedies are not in acting contemptuously but in ventilating their dissatisfactions by due process.

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