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The Trial Court Erred In Law! - David Umahi


By Sir Kenneth Ikonne, SAN

There are specific constitutional provisions on how a Governor can be removed from office, and section 109(1)(g) dealing with the consequences of defection of members of a State House of Assembly eloquently excluded governors by virtue of the EXPRESSION UNIUS EST EXCLUSIO ALTERIUS rule of statutory interpretation. The rule simply means that in the interpretation of statutes, what is not expressed is excluded, and the express mention of one thing is the exclusion of the other not mentioned. 

In providing consequences for defection, section 109(1)(g) of the Constitution which is captioned “Tenure of seat of members,” specifically mentions “a member of a House of Assembly” when it provided thus:

“A member of a House of Assembly shall vacate his seat in the House if….being a person whose election to the House of Assembly was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that House was elected.”

That was the constitutional provision Ekwo, J, was called upon to interpret in the Umahi case! How his Lordship was able to invent inclusion of governors in this very clear constitutional provision will forever remain a jurisprudential puzzle. And the matter was even settled conclusively in AG V. ATIKU ABUBAKAR, when the Supreme Court interpreted a similarly worded section 68(1)(g) of the Constitution dealing with the defection of the President and Vice President, and allowed Vice President Atiku Abubakar to defect with the mandate given to him on the platform of the PDP, to the ACN. 

Again, because section 180(1) of the Constitution has specially provided on the “Tenure of Office of Governor”, and how a Governor can be removed from office, it becomes egregious to read into the section what is not there. Talk about votes belonging to a political party are simply jejune, in this context; it may have been otherwise had the Constitution itself not specially provided or the “tenure of office of Governor” in section 180. Besides, AMAECHI’s case in which the principle of “votes belonging to the political party” was first invoked by the Supreme Court would have been decided differently today in view of the new section 141 of the Electoral Act, 2010, which has now restored the primacy of the candidate vis - a - vis votes garnered in an election. The section provides thus:

“An election tribunal or court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all the stages of the said election.”

The implication of section 141 of the Electoral Act, 2010, therefore is that Rotimi Amaechi, who did not “fully participate in all stages” of the 2007 governorship election in Rivers State could not have been declared the winner of that election under the present legal regime, even though his party, the PDP, did. A case is authority for what it decides, and AMAECHI V. INEC has long been overtaken by events.

On what authority then are we validating the Umahi judgment? Because the judgment gratifies our political biases?

I, too, hate David Umahi, and the harlotry of gubernatorial defections. But what we are discussing here is the state of the law, and the actual legislative intent, not whether Umahi is a lovable man. 

The trial judge was clearly wrong, on law: His Lordship totally ignored the legislative intent, and perhaps, peeved at the harlotry of gubernatorial defections, proceeded to usurp the legislative function of law making! The judgment will not stand, on appeal!

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