The Federal High Court in Abuja has sacked the senator representing Akwa Ibom North East district, Albert Akpan, over his defection, last year, from the Peoples Democratic Party (PDP).
The court declared his seat vacant and ordered the Independent National Electoral Commission (INEC) to conduct a bye-election to fill it within 14 days, counting from 20 January when the judgement was delivered.
Although Mr Akpan was recently convicted and jailed for corruption, his sacking by the court has nothing to do with that.
His sacking by the court is based on his defection from the PDP to the Young Progressives Party (YPP).
The convict, who is on post-conviction bail, is the Akwa Ibom State governorship candidate of his new party, the YPP, in the forthcoming March 2023 governorship election.
Delivering judgement in the political suit filed against him by the PDP, the judge, Fadima Aminu, ruled that he was not qualified to retain the seat after resigning from the party which sponsored his election to the Senate for a four-year tenure in 2019.
The judge ordered Mr Akpan to stop parading himself as a senator and ordered him to pay N5 million in costs to PDP which sued him over his defection to the YPP.
Ms Aminu said Mr Akpan, a two-term senator, failed in his obligation to prove that his defection from PDP was necessitated by serious rancour and steep differences in the ranks of the party.
Without a justifiable reason, the judge said, the defection violated section 68(1)(g) of the Nigerian constitution and implied that he must vacate his seat.
“Therefore, this honourable court holds that the 1st defendant (Mr Akpan) who resigned from the plaintiff (PDP) but failed in his duty before this honourable court to prove the alleged serious rancour and steep differences in the ranks of the plaintiff (PDP) which made him to resign or defect to Young Progressives Party (YPP), the 1st defendant is in violation of section 68(1)(g) of the 1999 Constitution by refusing to vacate his seat as a senator in the senate won under the sponsorship of the plaintiff,” the judge said.
PREMIUM TIMES saw a certified true copy of the judgement on Friday.
Defection and suit
Mr Akpan defected from the PDP in July 2022 citing unresolved grievances from the party’s governorship primary election in Akwa Ibom State.
He announced the YPP as his new party in his letter notifying the Senate President of his defection from the PDP.
He was among federal lawmakers who switched parties in the aftermath of last year’s primary elections across parties.
Following the development, the PDP sued Mr Akpan on 28 July 2022, urging the court to declare his seat vacant by virtue of the provisions of sections 68(1), and 62(b) of the Nigerian constitution affirmed by a plethora of Supreme Court decisions.
The party joined the Senate President and INEC as defendants.
Parties’ arguments and judgement
The PDP argued that there was no division in its fold to warrant Mr Akpan’s defection to another party.
It presented in court among other exhibits, Mr Akpan’s letter of resignation from the party. The letter dated 15 July 2022 was sent to the chairman of the PDP in his Ibiono Ibom Eastern Ward I in Ibiono Local Government Area of Akwa Ibom State, Ariekamauwen Asuquo.
PDP said Mr Akpan ought to have voluntarily relinquished his seat in the Senate after defecting to another party, but chose to continue to take benefit of his election into the Senate on its platform.
But Mr Akpan argued that the PDP lacked the right to file the suit as it was not listed among the authorities with powers to enforce section 68(1) of the constitution to declare his seat vacant.
He said by virtue of the provision of the constitution, only the President of the Senate, with regard to a senator, or the Speaker of the House of Representatives, for a member of the lower house, could validly enforce the constitutional provision.
But the judge held that the argument was “misconceived”, adding that “there is nothing in the provision of section 68(2) of the constitution that expressly provides that it is only the persons stated in the referenced section that can give effect to the provision of section.”
The judge, who backed her reasoning with judicial precedents, also dismissed the arguments and claims put forward in the senator’s defence by the Senate President, Ahmad Lawan.
An affidavit deposed on behalf of Mr Lawan had said he had yet to receive formal communication from Mr Akpan about his defection. The claim is contradicted by the wide reportage given to the Senate President’s reading of the senator’s defection letter on the floor of the Senate on 20 July 2022.
Contradicting itself, the affidavit said Mr Lawan had read reports, which he believed to be true, about the divisions in the PDP in Akwa Ibom State.
The judge held that the self-contradiction in the Senate President’s affidavit had destroyed all the facts stated in it.
“Therefore, the statement of the 2nd defendant is self-contradictory as the 2nd defendant claims on one hand that there has been no formal communication to him of the defection of the 1st defendant from the plaintiff and yet, on the other hand, agrees that the 1st defendant notified him of his defection and resignation from the plaintiff and being also aware of the division and factionalisation of the plaintiff in Akwa Ibom State as the reason for the 1st defendant’s defection.
“This honourable court agrees with the submission of the learned counsel for the plaintiff that once an affidavit is self-contradictory, it needs not be challenged by the other party as whatever facts the affidavit intends to establish would have been destroyed by the contradiction,” Ms Aminu ruled.
The judge said Mr Akpan’s resignation letter dated 18 July 2022 which he also publicised via his Twitter handle with other information about his defection “stands in the defence of the case of the plaintiff (PDP).”
The court, therefore, held that the PDP successfully proved its case “on the preponderance of evidence”
Akpan appeals to Court of Appeal, PDP seeks enforcement of judgement
Meanwhile, Mr Akpan has since appealed to the Court of Appeal in Abuja to avert the implementation of the judgement, with fresh elections to usher in a new set of senators a few weeks away.
The judgement came about a month before the general election to fill all 109 seats in the Senate.
The four-year tenure of the current senators elected in 2019 expires in early June, approximately four months away.
But PDP’s lawyers from the law firm of Tayo Oyetibo, a Senior Advocate of Nigeria, have written to the INEC chairman to “immediately take steps to timeously comply with the court’s order.”
A copy of the letter seen by PREMIUM TIMES and its authenticity confirmed to one of our reporters in a phone call to one of the signatories, Olaniran Obele, is dated 24 January and bears INEC’s acknowledgement stamp dated 25 January.
Defiant defections
The Supreme Court has ruled on different occasions that a division within the ranks of a political party must be so deep that the party can no longer function at the national level for it to be an acceptable excuse for the defection of a state or federal lawmaker.
But despite the judicial precedents, lawmakers still defect without justification. The presiding officers of the legislative houses empowered to declare the seats of such lawmakers are always lethargic to make such pronouncements, regardless of the party affiliations of the defectors.
PDP took benefit of such defection when, in 2018, then Senate President, Bukola Saraki, and some other senators joined its fold upon their dumping the ruling All Progressives Congress (APC).
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