The 79 legislators, who sued the People’s Democratic Party (PDP) and leaders of the National Assembly over threats to declare their seats vacant, justified their decision to defect from the party yesterday.
The lawmakers – 22 PDP Senators and 57 members of the House of Representatives, including those who have defected to the All Progressives Congress (APC) – argued that Senate President David Mark and House Speaker Aminu Tambuwal could not declare their seats vacant.
They contended before the Federal High Court, Abuja that Mark and Tambuwal cannot rely on the provisions of sections 68(1)(g) and 68(2) of the Constitution in declaring their seats vacant because there is division in the PDP and a faction of the party has merged with other parties.
They argued that the two conditions precedent for lawful defection, as provided in the Constitution – division and merger – had occurred to warrant their defection.
The planitiffs’ lawyer, Mahmoud Magaji (SAN), argued that – as against the contention by the PDP, its former Chairman Bamanga Tukur and Mark – the power to decide whether a defecting lawmaker’s seat is vacant or not, where his party is factionalised, is the court’s.
Magaji, who adopted his final submissions in the case, argued that his clients were justified in abandoning the PDP and that the National Assembly’s leadership cannot, by virtue of their defection, declare their seats vacant.
His argument was in reaction to arguments by Joe Gadzama (SAN) and Ken Ikonne (lawyers to the PDP, Tukur and Mark) to the effect that the plaintiffs’ seats automatically become vacant upon their defection, by virtue of the provision of Section 68(1)(g) of the Constitution.
They argued in their counter affidavit that the suit was misconceived as the plaintiffs were under the wrong impression that it requires Mark’s and Tambuwal’s pronouncement for the seats of defecting law makers to 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. Section 68(2) deals with the powers of the Senate President and Speaker to declare seats vacant.
Gadzama, who tendered two judgments 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 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.
“This is because the vacancy happens by virtue of the operation of the law,” he said.
Gadzama and Ikonne, who had in their preliminary objections queried the competence of the suit and urged the court to strike it out, urged the court to dismiss the suit, should it resolve the objection in favour of the plantiffs.
Replying, Magaji argued that the existence of the suits, whose judgments Gadzama tendered, was a confirmation that the party was polarised. He 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.
Magaji contended that 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 he said 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 when 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, 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 he initiated by way of writ of summons as against originating summons filed, because issues raised required the calling of oral evidence to resolve.
The Independent National Electoral Commission (INEC), represented by Al-Hassan Umar, chose to be neutral in the proceedings. It filed neither an objection nor a counter affidavit in the suit. It argued that the dispute was a PDP affair.
Justice Ahmed Mohammed refused Magaji’s request that the court should sanction Senator Ita Enang, who he said urged Mark to declare the seats 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 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 Enang, Magaji failed to provide evidence against the senator, “the court is not in a position to sanction the said Senator“.
Justice Mohammed has fixed judgment for March 26.
Defendants in the suit include Tukur, Mark, Tambuwal, the PDP and INEC.
The plaintiffs are, in the originating summons, seeking 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 simultaeneously 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;
•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, as amended without losing his/their elective seats; and a declaration that:
•in view of the proviso to Section 68 (1) (g) of the Constitution 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 other 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.
The plaintiffs are pleading for 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.
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