Defection: You Can't Declare Our Seats Vacant, PDP Lawmakers Tell Party, N'Assembly Leadership


As court delivers judgement March SAN FRANCISCO, February 18, (THEWILL) - The planned defection of the 79 Peoples Democratic Party (PDP) members of the National Assembly reverberated in court again on Tuesday as the federal lawmakers told their party and the leadership of the National Assembly that their seats cannot be declared vacant because of their planned defection.

They had dragged PDP and the National Assembly leadership to court over the threat to declare their seats vacant if they make good their defection plan.

Adducing reasons for their planned defection at the Federal High Court Abuja on Tuesday, the legislators, made up of  22 PDP Senators and 57 members House of Representatives, including those who have defected to All Progressives Congress (APC),  argued that the Senate President, David Mark and Speaker of the House of Representatives, Hon.

  Aminu Tambuwal, cannot declare their seats vacant by virtue of their defection.

Maintaining   that Mark and Tambuwal cannot rely on the provisions of sections 68(1)(g) and 68(2) of the Constitutions in declaring their seats vacant because there is division in the PDP and a faction of the party had merged with other parties, the lawmakers  argued that the two conditions precedent for lawful defection, as provided in the Constitution - division and merger - had occurred to warrant their defection.

Counsel to the plaintiff,  Mahmoud Magaji (SAN), argued that, as against the contention by the PDP, its ex-Chairman, Bamanga Tukur, and  Mark, only a court of law has the power to decide whether a defecting lawmaker's seat  can be declared vacant or not where the party factionalised.

Magaji, who adopted his final submissions in the case, argued that his client's were justified in their decision to abandon the PDP and that the National Assembly's leadership can not, by virtue of their defection declare their seats vacant.

Counsel to PDP, Tukur and Mark, Mr.
Joe Gadzama (SAN) and Ken Ikonne had argued that the plaintiffs' seats automatically becomes vacant upon their defection, by virtue of the provision of Section 68(1)(g) of the Constitution.

They had argued in their counter affidavit that the suit was misconceived as the plaintiffs were under the wrong impression that it requires the pronouncement by both Mark and Tambuwal before the seats of defecting law makers could be declared vacant.

Both lawyers argued that there was never a division in the PDP to justify the plaintiffs' defection and qualify them for exemption as provided under Section 68(1)(g) of the Constitution.

The section deals with instances when seats can be deemed vacant, while Section 68(2) deals with the powers of the Senate President and Speaker to declare seats vacant.

Gadzama, who tendered two judgment from earlier cases involving the Tukur-led faction and the Abubakar Baraje-led faction of the party, argued that the PDP was never divided.

Ikonne equally argued that the plaintiffs failed to prove that the party was actually divided to the point of being turn apart.

He also argued that the plaintiffs misconceived the nature of the powers vested in the Senate President under Section 68(1)(g) of the Constitution.

Ikonne said his position was informed by his understanding that the provision of Section 68(1)(g) is not only mandatory, it is self-executing, adding "This is because the vacancy happens by virtue of the operation of the law.

" Gadzama and Ikonne, who had, in their preliminary objections queried the competence of the suit ,urging  the court to strike it out, prayed the court   to dismiss the suit should it resolve the objection in favour of the plantiffs.

In his reply,   Magaji argued that the existence of the suits, whose judgments Gadzama tendered, was a confirmation that the party was polarised.

He also argued that what the Tukur-led PDP sought in one of the cases was that members of its Executive Council be declared the authentic leaders of the party.

He said there was nowhere in the suit, decided by Justice Evoh Chukwu of the Federal High Court, Abuja, where anyone denied division in the party.

He drew the judge's attention to a portion of Justice Chukwu's decision (pages 72 to 75) which according to him,  supported his position.

Magaji argued that it is only the court that can decide when a seat is vacant where a member defects to another party where there is a division in his old party.

He urged the court to disregard the defendants' objection to the suit and grant his clients' prayers and reliefs.

Tambuwal, represented by Alex Marama, however challenged the suit's competence and urged the court to dismiss it.

He argued that the suit amounted to an abuse of court's process because it was wrongly filed.

Tambuwal argued that the suit ought to ne initiated by way of writ of summons as against originating summons filed, because issues raised required the calling of oral evidence to resolve.

Al-Hassan Umar , who represented the Independent National Electoral Commission (INEC) was however neutral in the proceedings as he neither  filed an  objection nor a counter affidavit in the suit, arguing  that the dispute was a PDP affair.

The presiding  judge, Justice Ahmed Mohammed, had earlier  refused Magaki's request that the court should sanction Senator Ita Enang, who he said urged Mark to declare the seat of some of the plaintiffs vacant despite a subsisting interim order of the court, directing parties to maintain status quo.

Justice Mohammed, in rejecting Magaji's prayer, held that the court's rules have made sufficient provision for how issues relating to disobedience to court's orders should be handled.

He held that since there was no formal application for an order against Senator Enang, added to the fact that Magaji failed to provide evidence against the senator, "the court is not in a position to sanction the said Senator Enag.

" Justice Mohammed therefore  fixed judgement in the case  for March 26.

Defendants in the suit include Tukur, Mark, Tambuwal, the PDP and INEC.

The plaintiffs are, in the originating summons, seeking the following reliefs: 'A declaration that the circumstance prevailing at the national level and various state chapters of the PDP (4th defendant) which led to factions/ divisions as witnessed at the Special National Convention of the 4th defendant held on 31st August 2013 and holding of a parallel convention simultaneously at Shehu Musa Yar'Adua Centre, followed up with the emergence of new National Executive Committee constitute and qualify as crisis, faction and division anticipated under Section 68 of the Constitution of the Federal Republic of Nigeria, 1999 as amended.

'A declaration that any of the plaintiffs or other members of the PDP who pursuant to the crisis that led to factions/divisions in the 4th defendant, joined new faction of the 4th defendant or desires to join it or another political party (individually or as a group) is/are saved by the proviso to Section 68(1) (g) of the Constitution of the Federal Republic of Nigeria, 1999 as amended without losing his/their elective seats.

'A declaration that in view of the proviso to Section 68 (1) (g) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, the 1st defendant or any other officer of the 4th defendant or any person or authority whatsoever cannot declare vacant the seats of any of the plaintiffs or others members of the 4th defendant that joined or who may desire to become members of another political party in view of the present crisis that created factions/divisions in the 4th defendant vacant.

The plaintiffs wants an order, 'restraining  the 2nd and 3rd defendants from conducting any proceedings in their respective chambers aimed at declaring the seat (s) of any the plaintiffs or other members of the 4th defendant who joined or intended to become members of another political party vacant in view of the present circumstance in the 4th defendant as vacant.

'An order restraining the 5th defendant (INEC) from accepting nominations of any purported candidate and conducting by-election aimed at filling the seats of any of the plaintiffs or other members of the 4th defendant who joined or may wish to become members of another political party in view of the present circumstance in the 4th defendant.

' The defendants, particularly Tukur and PDP have opposed the suit asking  the court to dismiss it on several grounds.

They argued that the substance of the case "is an intra-party matter for which the 4th defendant (PDP) has various administrative and legal mechanisms which are yet to be exhausted by the plaintiffs.

" PDP and Tukur urged the court to dismiss the suit on the further grounds that the plaintiffs "lacked that requisite legal standing to institute and sustain this suit.