Proof Of Defection In Nigeria: A Pipe Dream In View Of The Supreme Court Decision In Appeal No. SC/CV/1174/2024
This article considers proof of membership of another political party after defection, as condition precedent for a member of parliament to lose his seat. This is in view of the Supreme Court judgement in Appeal No. SC/CV/1174/2024, delivered on the 28th day of February, 2025. The article finds that the Supreme Court’s insistence on proof of membership of another political party through membership register and membership card in a clear case of defection from a political party that sponsored a candidate to the parliament is dispensable. This is so, as it cannot reasonably be expected that a politician will not be a member of a political party. Assuming without conceding, that there are politicians that are not members of political parties; a member of parliament that wants to join such category of politicians should relinquish the votes that took him to parliament to its rightful owner – the political party, and consequently lose his seat in the parliament. It is the contention of this article that defection should be treated as an exclusively independent event that can warrant a member of parliament to lose his seat, and of course, does not excludes the probability of taking steps to acquire membership of another political party. The article concludes that if the Supreme Court maintains its stance that a clear case of defection alone is not enough for a member of parliament to lose his seat, except membership of another political party is proved through membership register and membership card; the Supreme Court has made proof of defection a pipe dream and has unwittingly commissioned the launch pad for parliamentary defection. This is because proof of membership of another political party through membership register and membership card is near impossible if not impossible.
Introduction
[P]olitical party includes any association whose activities include canvassing for votes in support of a candidate for election to the office of President, Vice-President, Governor, Deputy Governor or membership of a legislative house or of a local government council1.
The importance of political parties in a country that practises democracy cannot be overemphasized; moreso, in countries like Nigeria, where independent candidacy is not recognized2). Political parties is the vehicle that conveys politicians to their desired elective positions. As a matter of fact, votes scored during elections is not in favour of candidates, but the political party that sponsored such candidate3. Without political parties, the practice of democracy will be impossible. In the same vein, the lack of ideological stance amongst political parties in Nigeria has been a menace to the maturation of democracy. The absence of ideology in political parties and amongst politicians undoubtedly accounts for the perennial defection of politicians from one political party to another. Defection is taken from the Latin word, defectionem which means an “action of deserting or abandoning a party, leader, cause, etc4.” Defection has been defined by the Black’s Law Dictionary5) as: “Abandonment of allegiance or duty; the forsaking of a person or cause; desertion.” According to Burton’s Legal Thesaurus6):
DEFECT, (as a) verb (means to) abandon allegiance, abdicate, abscond, apostasize, back out, be disloyal, betray, break away, break fealty, break with, cast off, change sides, default, demit, depart, desert, disavow, disobey, disown, forsake, leave, leave unlawfully, mutiny, prove treacherous, quit, rebel, reject, renege, renounce, repudiate, resign, revolt, run away, secede, tergiversate, transfer, violate one’s oath, withdraw one’s support.
From the above rendering, defection simpliciter, means to renounce or resign one’s membership of a political party.
Anti-Defection Laws In Nigeria
The only law in Nigeria as at the time of writing this article that checkmates or curtail the defection of politicians from one political party to another is the 1999 Constitution7), and regrettably, it applies to members of parliament only. Section 68(1)(g) provides as follows:
(1) A member of the Senate or of the House of Representatives shall vacate his seat in the House of which he is a member if –
(g) 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 that House was elected;
Provided that his membership of the latter political party is not as a result of a division in the political party of which he was previously a member or of a merger of two or more political parties or factions by one of which he was previously sponsored;
Section 109(1)(g) which is in pari materia with the above provision provides thus:
(1) A member of a House of Assembly shall vacate his seat in the House if –
(g) being a person whose election to the House of Assembly was sponsored by a political party, he becomes a member of any other political party before the expiration of the period for which that House was elected:
Provided that his membership of the latter political party is not as a result of a division in the political party of which he was previously a member or of a merger of two or more political parties or factions by one of which he was previously sponsored;
For the sake of this discuss, reference will not be made to membership of another political party as sine qua non for a member of parliament to lose his seat; this is because defection will suffice for a member of parliament to lose his seat. This is so, as it cannot reasonably be expected that a politician will not become a member of another political party after defection. Let me even assume for the sake of argument, that there are politicians that are not members of political parties; a member of parliament that wants to join such class of politicians should relinquish the votes that took him to parliament to its rightful owner – the political party3, and consequently lose his seat in the parliament. This is because it is hideous that a political party that was turned down by the electorates in an election will get back the seat(s) it lost through the back door. This is not only morally despicable; it is also legally unjustifiable.
Again, a literal/strict interpretation of the words “becomes a member of any other political party” in sections 68(1)(g) and 109(1)(g) of the 1999 Constitution will be absurd and defeat the obvious mischief the framers of the Constitution intended to cure after a formal defection of a member of parliament. Therefore, the mischief rule of interpretation should be adopted. This is even more so as the Supreme Court has stated as follows:
My Lords, it is my view that the approach of this court to the construction of the Constitution should be, and so it has been, one of liberalism, probably a variation on the theme of the general maxim ut res magis valeat quam pereat (It is better for a thing to have effect than to be made void). I do not conceive it to be the duty of this court so to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve…8
In I.M.B. v Tinubu9, the Supreme Court further stated the principle guiding the interpretation of the Constitution thus:
…it will be necessary to recall the general principle of law governing the interpretation of our Constitution. This is that such interpretation as would serve the interest of the Constitution and best carry out its object and purpose should be preferred… and where the words of any section are clear and unambiguous, they must be given their ordinary meaning, unless this would lead to absurdity or be in conflict with other provisions of the Constitution.
In interpreting the Constitution, the Supreme Court essentially sets out to ensure effect is given to the obvious intendment of the Constitution over a strict and narrow literal interpretation.10
Section 68(g) [in pari materia with 109(g)] of the Constitution is to stop carpet crossing. A person elected to Congress on Party A must remain in Party A for the term for which he was elected. If he defects to Party B, that is to say, if he voluntarily decides to change party he must resign and fight a bye-election.11
It is important to look at the interpretation of the proviso to sections 68(1)(g) and 109(1)(g) of the 1999 Constitution. “The purport of a proviso whenever same is inserted in any provision is to create an exception and derogation from the intendment of the statutory provision…”12 In other words, the proviso to sections 68(1)(g) and 109(1)(g) of the 1999 Constitution pertains to when members of parliament can defect to another political party without losing their seats. The Supreme Court in Abegunde v Ondo State House of Assembly13 annunciated on the meaning of the proviso as follows:
The principle enunciated by this Court in the two cases, Fedeco v Goni14 supra and AG Federation v Abubakar15 (supra), is to the effect that only such factionalisation, fragmentation, splintering or “division” that makes it impossible or impracticable for a political party to function as such will, by virtue of the proviso to Section 68(1) (g), justify a person’s defection to another party and the retention of his seat for the unexpired term in the house inspite of the defection. Otherwise, as rightly held by the courts below, the defector automatically looses his seat.
In the instant case, the two courts are right that the Labour Party that has continued to function as a political party by meeting the conditions associations by virtue of Section 221 and 222 of the Constitution must necessarily meet, cannot be said to have been so factionalised, fragmented, split or divided to justify the defection of the appellant to another party and retention of his seat inspite of the defection. This remains the position of this Court on the issue16.
Decision Of The Supreme Court In Appeal No. SC/CV/1174/2024
The decision of the Supreme Court in Appeal No. SC/CV/1174/2024, binds seven appeals before the Supreme Court, all emanating from Rivers State. Of importance here is only one appeal; i.e. Cross-appeal No SC/CV/1175A/2024, between the Governor of Rivers State (Sir Siminalayi Fubara) v The Right Honourable Martin Chike Amaewhule (The Honourable Speaker, Rivers State House of Assembly) & 26 Ors; against the Court of Appeal decision in Appeal No. CA/ABJ/CV/133/2024, affirming part of the Federal High Court judgment in Suit No. FHC/ABJ/CS/984/2024, that discountenanced the claim that Martin Chike Amaewhule and 26 others are no longer members of the Rivers State House of Assembly on the basis of an “alleged” defection.
In this appeal; i.e. Cross-appeal No SC/CV/1175A/2024, certain facts are not in dispute. These are as follows:
(a) The fact that the Right Honourable Martin Chike Amaewhule (The Honourable Speaker, Rivers State House of Assembly) and 26 other members of the Rivers State House of Assembly secured the ticket of the Peoples Democratic Party (PDP), under which they contested and won the election to represent their various constituencies in the 2023 General Election.
(b) That the Right Honourable Martin Chike Amaewhule (The Honourable Speaker, Rivers State House of Assembly), on the 11th day of December 2023, read on the floor of the Rivers State House of Assembly, letters from himself and 26 other members announcing their defection from the Peoples Democratic Party (PDP) to the All Progressives Congress (APC).17
(c) That the Right Honourable Martin Chike Amaewhule and 26 other members of the Rivers State House of Assembly in their separate letters read on the floor of the Rivers State House of Assembly, based their defection from the Peoples Democratic Party (PDP) to the All Progressives Congress (APC) on the legal tussle surrounding the position of the National Secretary of the Peoples Democratic Party (PDP) at the time.
It is important to reproduce at this juncture, the meaning of “division” in section 109(1)(g) of the 1999 Constitution as stated by the Supreme Court. This is because the 27 lawmakers in their respective letters read on the floor of the Rivers State House of Assembly said their defection to the All Progressives Congress (APC), was necessitated by the division in the Peoples Democratic Party (PDP); particularly the tussle around who the National Secretary of the PDP is, that has sharply “divided” the PDP. Division in section 109(1)(g) of the 1999 Constitution which will have salvaged the lawmakers, according to the Supreme Court:
…is to the effect that only such factionalisation, fragmentation, splintering or “division” that makes it impossible or impracticable for a political party to function as such will, by virtue of the proviso to Section 68(1) (g) [109(1)(g)], justify a person’s defection to another party and the retention of his seat for the unexpired term in the house inspite of the defection. Otherwise, as rightly held by the courts below, the defector automatically looses his seat.18)
It is manifest from the foregoing that the 27 lawmakers cannot be rescued by the proviso to section 109(1)(g) of the 1999 Constitution.
(d) That the Right Honourable Martin Chike Amaewhule in the case of Rt Hon. Martin Chike Amaewhule & 26 Ors v INEC & Ors in Suit No. FHC/ABJ/CS/4631/2023, deposed to an affidavit on oath for himself and on behalf of 26 other members of the Rivers State House of Assembly wherein he averred in paragraphs 1, 2, 3, 4, 5, 6, 8, and 15 as follows:
1. That I am the 1st Plaintiff, Speaker of the Rivers State House of Assembly and was duly elected Speaker of (on) the 5th day of June 2023 by virtue of which I am seized of the facts of this case deposed herein.
2. That I have the consent and authority of all the other Plaintiffs to depose to this Affidavit.
3. That all the facts deposed to herein are within my personal knowledge except otherwise stated.
4. That I was duly elected as a member representing Obio-Akpor State Constituency in the Rivers State House of Assembly in May 2023 on the platform of the Peoples Democratic Party and on the 5th day of June 2023, I was elected Speaker of the Rivers State House of Assembly.
5. That the 2nd Plaintiff is the Deputy Speaker of the Rivers State House of Assembly and was duly elected Deputy Speaker on the 5th day of June 2023. The 2nd Plaintiff also represents Gokana State Constituency in the Rivers State House of Assembly, having been duly elected by his Constituents in the May 2023 General Election on the Platform of the Peoples Democratic Party.
6. That the 3rd – 27th Plaintiffs are also members of the Rivers State House of Assembly duly elected to represent their respective constituencies in the Rivers State House of Assembly on the platform of the Peoples Democratic Party.
8. That the Plaintiffs contested the aforesaid elections on the platform of the Peoples Democratic Party and had remained members of the Peoples Democratic Party until 11/12/2023 when they (Plaintiffs) left Peoples Democratic Party and joined the All Progressives Congress as a result of a division in the Peoples Democratic Party.
15. That faced with the state of uncertainty and confusion in the 2nd Defendant [People’s Democratic Party (PDP)] caused by the division in the Political Party, the Plaintiffs [Hon Martins Amaewhule & 26 others] were forced by the state of affairs within the 2nd Defendant [PDP] to defect and join the All Progressives Congress (APC)19
(e) That the then Caretaker Committee Chairman of the Rivers State chapter of the All Progressives Congress (APC), Chief Tony Okocha on the 7th day of May 2024, addressed the Right Honourable Martin Chike Amaewhule and 26 other members of the Rivers State House of Assembly as “members of our political party.”20 Chief Tony Okocha further stated that:
in consultation with my Party, we are directing APC members who are in the Assembly to immediately commence the impeachment of Governor Sim Fubara.
And if they don’t do that, there’s what they call Party discipline, and we shall invoke that section of the Constitution and deal decisively with them.21
It is upon the above facts that the Supreme Court in their wisdom held that “The argument of Learned SAN for the cross appellant that the 27 members have defected has no evidential basis.” One is only left to wonder what will amount to having “evidential basis” in the face of the above undisputed bare facts. The Court went further to opine that:
It is not shown or suggested that their names (27 members of the Rivers State House of Assembly) are now in the register of members of another political party or that they have obtained membership card of that other party. Membership register and membership card constitute the only proof of membership of a political party.
As stated earlier, a literal/strict interpretation of the words “becomes a member of any other political party” in section 109(1)(g) of the 1999 Constitution will be absurd and defeat the obvious mischief/intendment of the framers of the Constitution after a formal defection of a member of parliament. The mischief rule of interpretation should therefore be utilised. This is even more so as the Supreme Court has stated as follows:
My Lords, it is my view that the approach of this court to the construction of the Constitution should be, and so it has been, one of liberalism, probably a variation on the theme of the general maxim ut res magis valeat quam pereat (It is better for a thing to have effect than to be made void). I do not conceive it to be the duty of this court so to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve…22)
Specifically, the Supreme Court has stated that the intendment of section 68(1)(g) of the 1999 Constitution which is in pari materia with section 109(1)(g)
…is to stop carpet crossing. A person elected to Congress on Party A must remain in Party A for the term for which he was elected. If he defects to Party B, that is to say, if he voluntarily decides to change party he must resign and fight a bye-election.18)
The Supreme Court has also stated that:
…the general principle of law governing the interpretation of our Constitution … is that such interpretation as would serve the interest of the Constitution and best carry out its object and purpose should be preferred… and where the words of any section are clear and unambiguous, they must be given their ordinary meaning, unless this would lead to absurdity or be in conflict with other provisions of the Constitution.23)
There is no doubt that literal interpretation of the words “becomes a member of any other political party” in section 109(1)(g) of the 1999 Constitution, which according to the Supreme Court, can only be established through membership register and membership card; given the facts of this case, beats common sense squarely and absurd. In interpreting the Constitution, the Supreme Court essentially sets out to ensure effect is given to the obvious intendment of the Constitution over a strict and narrow literal interpretation.24) It is sad that the Supreme Court prefers a strict literal interpretation of the words “becomes a member of any other political party” in section 109(1)(g) of the 1999 Constitution, after an undisputed defection; in clear defiance of the purpose/intendment of the Constitution.
It is from the above absurd literal interpretation of the words “becomes a member of any other political party” after a formal renunciation/defection; that the Supreme Court made proof of defection a pipe dream, and thereby commissioned the launch pad for parliamentary defection in Nigeria.
We do not need to conjecture whether a political party that is the beneficiary of a defection will avail the court with a register of members that will adversely affect its interest or members of parliament that joined its fold. No political party will do such thing. Let me even assume every political party keeps a copy of their membership register with the Independent National Electoral Commission (INEC), and that with an order of court, a person interested can obtain it; such register will still not bear the names of the defected lawmakers, as it will not have been updated.
Again, will a sane person hand over the machete with which he will be slaughtered to the butcher? Why will the Supreme Court even think a defected member of parliament fighting to retain his seat after defection will agree that he is in possession of the membership card of another political party or even avail the court of same. This equipping of the defected lawmakers by upholding the absurd impenetrable defenses of membership register and membership card at the detriment of the cross-appellant, constitute at least, a violation of neutrality.
Conclusion
With the interpretation given to section 109(1)(g) of the 1999 Constitution by the Supreme Court which is in clear disregard of the intendment of the Constitution; the Supreme Court has not only embolden members of parliament to defect and assured them that there will be no consequences; the Supreme Court has also rendered section 109(1)(g) of the 1999 Constitution noneffective and violable. It is advised that the Supreme Court reverses its stance at the earliest opportunity, to preserve the sanctity and inviolability of the Constitution. And consequently, make proof of defection/membership of another political party probable.
About Author
Ogugoedeng Joseph Dimkpa
- CFRN, s. 229 [↩]
- CFRN, ss. 65(b), 106(d), 131c), 177(c [↩]
- CFRN, s. 221; Faleke v INEC (2016) 18 NWLR (Pt. 1543) 61 [↩] [↩]
- ‘Defection’ available at<https://www.etymonline.com/word/defection>accessed 12 March 2025 [↩]
- Bryan A. Garner, Black’s Law Dictionary (Thomson Reuters, Tenth Edition [↩]
- William C. Burton, Burton’s Legal Thesaurus (Fifth Edition [↩]
- CFRN, ss. 68(1)(g), 109(1)(g [↩]
- Nafiu Rabiu v The State (1981) 2 NCLR 293 [↩]
- (2001) 16 NWLR (Pt.740) 690 [↩]
- Attorney General Bendel State v Attorney General of the Federation & 22 Ors. (1982) 3 NCLR [↩]
- Abegunde v Ondo State House of Assembly (2015) 8 NWLR (Pt. 1461) 314 [↩]
- NDIC v O’silvawax Int’l (2006) 7 NWLR (Pt. 980) 588 [↩]
- Abegunde (n 12) [↩]
- Federal Electoral Commission v Goni (1983) LPELR-1266 (SC) [↩]
- Abubakar v AG Federation (2007) 10 NWLR (Pt 1041) 178 [↩]
- Abegunde (n 12) [↩]
- “LP Gets Court Nod To Play Defection Clip Of Amaewhule, 26 Others” available at<https://www.google.com/amp/s/www.channelstv.com/2024/11/20/lp-gets-court-nod-to-play-defection-clip-of-amaewhule-26-others/amp/>accessed 12 March 2025 [↩]
- Abegunde (n 12 [↩] [↩]
- “Nigerian judiciary must take judicial notice of affidavit deposed by 26 defected Rivers lawmakers – Okutepa” available at<https://lawandsocietymagazine.com/nigerian-judiciary-must-take-judicial-notice-of-affidavit-deposed-by-26-defected-rivers-lawmakers-okutepa/?amp=1>accessed 14 March 2025 [↩]
- “Rivers APC Asks Assembly To Resume Impeachment Proceedings Against Fubara” available at<https://www.google.com/amp/s/www.channelstv.com/2024/05/07/rivers-apc-asks-assembly-to-resume-impeachment-proceedings-against-fubara/amp/>accessed 14 March 2025 [↩]
- ibid [↩]
- Nafiu Rabiu (n 9 [↩]
- I.M.B. (n 10 [↩]
- Attorney General Bendel State (n 11 [↩]
