The Court of Appeal, Sokoto Judicial Division, presided over by Hon. Justice A. A. Gumel, JCA, on Wednesday, July 13, 2022, dismissed the filed appeal by some PDP members (Bashiru Saleh, Abdulhameed Haruna and Ibrahim Muhammad Turaki), seeking the removal of Governor Bello Matawalle from office for defecting from the PDP to the APC. The court affirmed the earlier decision of the Federal High Court, Gusau, which had held that Gov. Matawalle cannot be removed from office simply because he defected from the Peoples Democratic Party (PDP) to the All Progressives Congress (APC).
In Appeal No. CA/S/61/2022, the Court in a unanimous decision in the appeal argued by Matawalle’s Counsel, Chief Mike Ozekhome, SAN, held that Governor Matawalle has the right to defect to any political party of his choice in exercise of his fundamental right to freedom of association as guaranteed by section 40 of the 1999 Constitution and as earlier decided by the Supreme Court in the case of ATTORNEY GENERAL OF THE FEDERATION V. ABUBAKAR (2007) 10 NWLR (PART 1041) 1 at page 124; and subsequently followed by the Court of Appeal in OGBUOJI & ORS v. UMAHI & ORS (2022) LPELR-57166(CA). Other Justices who concurred with the lead judgment are Justice Mukhtar, JCA, and Justice Dan-Juma, JCA.
At the trial Court, the appellants, as plaintiffs, had approached the Federal High Court, Gusau, via an Originating Summons, which amongst others, sought a declaration that Governor Bello Matawalle having defected on the 29th day of June, 2021, to the APC from the PDP which sponsored his election to the office of the Governor of Zamfara State, mid-stream into his 4-year term in office, is deemed to have repudiated/resiled from his election to the said office and therefore had resigned from the office of the Governor of Zamfara State effective from the date of his defection or carpet- crossing.
Other injunctive reliefs were also sought by them from the court against Governor Bello Matawalle and the Deputy Governor, Barr. Mahadi Aliyu Gusau, in the suit which included the APC, INEC and the Attorney General of the Federation. The PDP was not joined as a party to the suit.
Chief Ozekhome had filed a preliminary objection contending that the action was an abuse of court process and that the action could not be maintained in view of the pendency of suit Nos: FHC/ABJ/CS/489/2021 and FHC/ABJ/CS/650/2021, filed by the PDP and its privies pending before the Federal High Court in Abuja, against the same Matawalle, and based substantially and materially on the same issues and seeking the same reliefs as in the instant case. The Deputy Governor, Barr. Mahadi Aliyu Gusau, the INEC and the Attorney General of the Federation also filed Preliminary Objections. In a considered judgment delivered on the 7th of February, 2022, the learned trial Judge, Justice Aliyu Bappa, of the Federal High Court, Gusau, had upheld Ozekhome ’s preliminary objection that the plaintiffs’ action constituted an abuse of court process for multiplicity of actions.
The learned trial judge, not being a final court, went further to consider the substantive suit in case he was wrong on his finding on the issue of abuse of court process and therfore lack of jurisdiction. It held that contrary to the contention of the Plaintiffs, Governor Bello Matawalle in exercise of his right to freedom of association as guaranteed under section 40 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), is entitled to defect from the political party that sponsored him to office to another political party without losing his seat as the Governor of Zamfara State, in line with the decision of the Supreme Court in A. G. FEDERATION V. ABUBAKAR (2007) 10 NWLR (PART 1041) 1 at page 124.
The Plaintiffs appealed against this judgment to the Court of Appeal, Sokoto Division. The 2nd Defendant, Barr. Mahadi Aliyu Gusau, however cross appealed in CA/S/79/2022, on the grounds that the issue of non-disclosure of reasonable cause of action raised by him in his preliminary objection before the trial court was not specifically pronounced upon by the learned trial Judge. His second ground in the cross appeal was that the learned trial Judge was wrong to have proceeded to pronounce on the substantive matter after finding that the case of the plaintiffs was an abuse of court process and that he lacked the jurisdiction to entertain the matter. The appeal and the cross appeal were argued on the 22nd of June, 2022, before the Court of Appeal, Sokoto Division.
Judgment was delivered on the 13th of July, 2022 and the appeal and cross appeal were unanimously dismissed by the Court of Appeal. Dismissing the appeal, the Court held that the lower court rightly held that the suit of the appellants constituted an abuse of court process, since the end result of the two Abuja FHC suits in Exhibits DEA2 and DEA3 were the same with the instant suit, which is the removal of the Governor from office for defecting or carpet-crossing from his original party ( PDP) to a new party ( APC). The court also held that the exhibits attached to Matawalle’s affidavit in support of the notice of preliminary objection formed part of the affidavit evidence and needed no special certification, citing the Supreme Court case of AONDOAKAA v. OBOT & ANOR (2021) LPELR-56605(SC).
The learned Justices said they found it strange that the Appellants raised the issue of the improper certification of exhibits DEA2 and DEA3 because the said exhibits were certified exactly the same way the record of appeal in this case was certified; that if the argument of the counsel to the appellant were to be taken by the court, it would therefore mean that the appellants had not themselves properly certified record of appeal before the court and as such, the appeal would itself be incompetent and spent.
The Court also held that the PDP ought to have been joined as a necessary party, as the injury sought to be redressed by the action was that of the PDP in line with the case of GREEN V. GREEN and FOSS V. HARBOTTLE, and that the appellants were crying more than the bereaved.
On the substantive issue of defection, the court held that a Governor cannot lose his seat on ground of defection from one party to another. The court affirmed that a Governor can defect from one party to another without losing his seat in tandem with the provisions of section 40 of the Constitution, and the binding decisions of the supreme court in A.G. FEDERATION V. ABUBAKAR (Supra); and the Court of Appeal in OGBUOJI V. UMAHI (Supra).
The Court also held that the provisions of the Constitution are very clear to the effect that no punishment was provided for a Governor who defects to another party; that Governor Matawalle cannot therefore vacate his seat; and no Court of law can remove him just because of his decision to defect to another political party of his choice in exercise of his constitutional right of freedom of association. The Court added that once a governor is sworn in, he ceases to be under the control of the political party which sponsored him, and he can only be removed from office in line with the provisions of sections 180, 188 and 189 of the 1999 Constitution.
All the issues having been resolved in favour of Governor Matawalle, the appeal was dismissed and the judgment of the Federal High Court, Gusau, delivered on the 7th of February, 2022 was affirmed. In addition to the N1 million cost earlier awarded in favour of each of the Respondents by the trial Court, another cost of N1 million was awarded against the Appellants in favour of each of the 1st and 2nd Respondents (the Governor and the former Deputy Governor), respectively.
Similarly, the Cross Appeal filed by Bar Mahadi Aliyu Gusau, the impeached Deputy Governor of Zamfara State, was dismissed. While dismissing the Cross Appeal, the Court of Appeal held that Bar. Mahadi Aliyu Gusau cannot succeed Governor Matawalle merely because the Governor defected from PDP to APC. The court also held that the learned trial Judge was right in proceeding to pronounce on the substantive suit in the alternative after finding that the case was an abuse of court process, contrary to the contention of Mahadi, as this was the position of the law.
