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The Law Of Moving From One Party To Another – By Nnamani Ogbonna



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The Law Of Moving From One Party To Another – By Nnamani Ogbonna

The Law Of Moving From One Party To Another – By Nnamani Ogbonna

It is no longer news that whenever election is approaching, politicians move from one party to another. They have their reason for doing that .

The first recorded incident of carpet-crossing was in 1951 in the defunct Western Region House of Assembly when several members of the now defunct NCNC, National Counsel of Nigeria and Cameroon led by the Great Zik of Africa, Dr. Nnamdi Azikiwe overnight decamped to the old AG, Action Group led by Great Sage Chief Obafemi Awolowo SAN, to deny the former majority in the Western Region House of Assembly, which led to the AG forming the Government in the defunct region and Dr. Azikiwe beating a tactical relevant to his native Eastern Region to form the ruling Government, It is instructive to note that this singular political event was to lead to permanent mistrust not only between the two great and illustrious nationalists Awolowo and Azikiwe, but even to their kinsmen which mutual feeling still persists.

Ademola Adewale noted that in the 2nd Republic between 1979-1983, there were a number of high profile carpet crossings, prominent amongst which were: the Carpet Crossing by Chief Akin Omoboriowo from UPN, Unity Party of Nigeria led by Chief Awolowo to NPN National Party of Nigeria, NPN, the Carpet crossing by Chief Fagbamigbe also of former Ondo State from UPN to NPN.

Under the 1999 Constitution: a member of the Senate or House of Representatives is liable to vacate his seat under section 68 (1) (g) of the Constitution if “being a person whose election to the House was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which the House was elected”.

“Provided that his membership of the later political party is not as a result of a division in the political party of which he was previously a member or a merger of two or more political parties or factions by one of which he was previously sponsored”.

Supreme Court decisions prominent amongst which was the case of AG FEDERATION V ATIKU ABUBAKAR (2007) 4 S. C. (PT, 11) 62  in which the court held: “Although defection or cross-carpeting to another party or dumping the original party that sponsored one for election to a particular office” which is created by the constitution or in the same vein, condemning or criticizing that party or its members who by virtue of the same election hold some offices created by the constitution, is painful, unconscionable and immoral, it is however not illegal”.

In the case of Hon. Ifedayo Sunday Abegunde  V Oundo state house of Assembly , The supreme court decided on this issue. The fact of the case is as follows:

The appellant contested and won the Akure North/South Federal Constituency seat on the platform of the Labour Party. He abandoned the party and defected to the Action Congress of Nigeria the A.C.N.He asserts that the factionalisation or division in the Ondo State Chapter of the Labour Party accounts for his defection to the Action Congress of Nigeria.

By an originating summons filed on the 26th January, 2012,  the appellant as plaintiff commenced Suit NoFHC/AK/CS/31/2012 at the Federal High Court, hereinafter referred to as the trial court, seeking the interpretation of Section 68(1) (a) and (g) of the 1999 Constitution as amended and a declaration thereon that by virtue of the proviso to the section he is entitled to remain the elected member for Akure North/South Federal Constituency inspite of his defection from the Labour Party that sponsored him to the Action Congress of Nigeria, A.C.N. Appellant also urges that the defendants, the respondents herein, be restrained from howsoever tampering with his right to the Federal seat. He filed a six paragraph affidavit in support of his originating summons.The 1st-3rdrespondents not only contested appellant’s claim, they counter-claimed against him. They assert that by virtue of the very proviso to Section 68(1) (g) of the 1999 Constitution as amended, the appellant who,on the basis of the factionalisation or division in the Ondo State Chapter of the Labour Party alone, defected to the Action Congress of Nigeria, automatically ceases to be the elected member for the Akure North/South Constituency. It is defendants’ prayers that the seat be declared vacant and the Independent National Electoral Commission ordered to conduct a bye election for the vacant seat. The 1st-3rd

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Respondents filed an eleven paragraph counter-affidavit in opposition to appellant’s originating summons. Their counter-claim is supported by an affidavit, a further and better affidavit and written address. Appellant’s claim as contained in his originating summons and the 1st-3rdrespondents’ counter-claim were taken together. The trial court in a considered judgment delivered on 30t  May, 2012, while dismissing appellant’s claim granted 1st-3rd Respondents’ counter-claim.

Dissatisfied with the trial court’s decision, the appellant appealed to the Court of Appeal, Akure Division, hereinafter  referred to as the court below, on a Notice of Appeal dated and filed on 26th June, 2012 containing ( 10) ten grounds. The court in a well-considered judgment delivered on 15th September, 2014 dismissed the appeal and affirmed the trial court’s decision. The court of Appeal among other things held as follows:

“A community reading of Sections 221, 222, 229 of the Constitution as well as Section 80 the Electoral Act, clearly shows that, the division envisaged by Section 68(1) of the Constitution refers to division in the party at the top or centre not a division at the State or Local Government level as contended by the appellant…..The intention of the law makers is to punish defectors. If the provision of Section 68(1) (g) of the Constitution is interpreted as proffered by the appellant then the purpose for which the section was introduced would be defeated. There will be no end to defection by members”

Still aggrieved, the appellant has appealed to the supreme court Court vide his Notice of Appeal filed on 17th September, 2014. It is

Significant to acknowledge the fact that the 5th and 7th Respondents have also cross-appealed against the Lower Court’s judgment by their Notice containing three grounds dated and filed on 19th September, 2014. Notwithstanding the fact that the 5th and 7th

Respondents/cross appellants did not file any brief of argument in respect of either the main appeal or their Cross-Appeal; the court granted them leave pursuant to Order 6 rule 9 of its rules to advance oral arguments regarding the Cross-Appeal. Respondents to the Cross-Appeal were also allowed to similarly respond. Arguments for and against the Cross-Appeal are a rehash of those advanced in the main appeal. The cross appellants like the appellant in the substantive appeal, insist that the appellant is entitled to keep his seat inspite of his defection from the Labour Party that sponsored him. They argue that fragmentation in the Ondo State Chapter of the Labour Party suffices.

At the hearing of the appeal, parties, except the 5th& 7th respondents in the main appeal, on identifying their respective briefs adopted and relied on same as their arguments for or against the appeal.

The sole issue distilled by the appellant in his brief of argument which issue the respondents to the appeal, except the 5th and 7 thseem to adopt as having arisen for the determination of the appeal, reads:-

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‘Whether the Lower Court’s interpretation and application of Sections 68(1) (a) (g) and 222(a) (e) and (f) of the Constitution of Federal Republic of Nigeria1999 (as amended) is valid, when it affirmed the trial court’s decision, that a dispute at the state level does not warrant the Appellant’s defection and consequently arrived at the conclusion that the national leadership of a political party determine the existence or proof of division in a political party”

The Supreme Court held:

“I am unable to agree with learned counsel to the appellant that on the facts and the law as concurrently applied by the two courts below their decisions can be interfered with. One is left in no doubt that the determination of the dispute the trial court is approached to resolve turns decisively on the meaning of the word “division” as used by the framers of the proviso to Section 68(1)(g) of the 1999

Constitution as amended. Whereas learned appellant’s counsel contends that “any division,” in the political party would entitle a person who contested and won an election on the platform of that party to defect to another party and inspite of the defection to retain his seat, learned counsel to the respondents’, except the 5th& 7th on the other hand, argue that the “division” in the State structure of the Labour Party only,does not entitle the appellant to abandon the Labour Party for the A.C.N. Not being the kind of “division” that affects the national structures and therefore the corporate existence of the party, learned counsel insist, appellant’s defection does not come within the proviso to Section 68(1) (g) to entitle him to retain his seat in the House of Representatives inspite of his defection to the A.C.N. from the Labour Party on which platform he contested and won the seat. This position of the respondents is unassailable”

The case of muhammed Goni was the first case on this issue. Goni has dumped his party and moved to another party to contest a Governorship election. The Federal Electoral commission wanted to stop him and he went to court.

The Citation is as follows: Federal Electoral Commission V Goni (1983) LPELR-1266 (SC) where the Supreme Court held:

“Under Section 64(1) (g) of the Constitution where a person whose election to the legislative house was sponsored by a political party, becomes a member of another political party before the expiration of the period for which that house was elected, he would have to lose his seat in that house. But under the proviso to the said Section 64(1)(g), if his membership of the new political party occurred because –(1)

There was a division in the political party which sponsored him and as a result he joined the new political party…he does not lose his seat”

We see that if there is faction in a party, one is legally free to dump his party and join another party. We see also that the faction must exist at the federal level and not at the state level of the party. We see that one stand the chances of losing his seat if he defects when there is no faction or merger in his party.  What he needs to do is to ensure that there is merger or faction at the federal level of his party, and then he can lawfully join another party of his choice

Nnamani Ogbonna, is an Abuja based legal practitioner .He sent this pierce via his email, nnamani. ogbonna@yahoo.com. 08068599914

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