…As legal fireworks loom, experts say decision backed by Section 109 of the 1999 Constitution
By Jeremy Fregene
The Delta State House of Assembly on Tuesday declared the Udu State Constituency seat vacant following the defection of its member, Hon. Collins Egbetamah, from the All Progressives Congress (APC) to the Nigeria Democratic Congress (NDC), invoking constitutional provisions that require lawmakers to forfeit their seats upon switching political parties under certain conditions.
The decision followed the reading of Egbetamah’s resignation and defection letter, dated June 19, by the Speaker, Rt. Hon. Dennis Guwor, during plenary.
Shortly after the letter was read, the Majority Leader, Emeka Nwaobi, moved a motion relying on Section 109(1)(g) and Section 109(2) of the 1999 Constitution (as amended), urging the House to declare the seat vacant and notify the Independent National Electoral Commission (INEC) to conduct a by-election.
The motion received unanimous support from lawmakers, after which the Speaker formally declared the Udu Constituency seat vacant, stating that the decision was in strict compliance with the Constitution.
Section 109(1)(g) provides that a member of a State House of Assembly elected on the platform of a political party shall vacate his or her seat upon becoming a member of another political party before the expiration of the tenure, except where the defection results from a division within the original party or from a merger involving political parties.
Section 109(2) further mandates the Speaker to notify INEC as soon as a vacancy occurs, paving the way for a fresh election under Section 116(2) of the Constitution.
Legal analysts say the Assembly’s action is constitutionally valid and is supported by judicial precedent, although the lawmaker retains the right to challenge the decision in court.
One of the strongest precedents is the 2012 judgment of the Federal High Court in Asaba in DPP v. Delta State House of Assembly & Dr. Alphonsus Ojo, where the court held that the seat of a lawmaker representing Ukwuani Constituency became vacant after he defected from the Democratic People’s Party (DPP) to the Peoples Democratic Party (PDP). The court consequently ordered the Speaker to declare the seat vacant and facilitate a fresh election.
The issue has also featured prominently in Nigeria’s evolving defection jurisprudence. In 2024, Speaker Guwor and 21 lawmakers defected from the PDP to the APC without losing their seats after relying on the constitutional exception relating to division within a political party, citing the roiling PDP crisis.
Similarly, the Supreme Court, in Atiku v. Attorney-General of the Federation (2006), distinguished legislators from executive office holders, holding that while elected lawmakers may lose their seats for unlawful defection, the same constitutional penalty does not apply to governors or the President.
Legal observers maintain that for Egbetama to succeed in court, he would need to convince the judge that his defection was occasioned by a division within the APC or by a merger involving the party, the two constitutional exceptions recognised under Section 109(1)(g).
Such arguments have previously been canvassed by defecting lawmakers, including members of the National Assembly who cited internal party crises to justify their defections.
Unless a competent court grants an injunction or ultimately rules otherwise, the Delta State House of Assembly’s declaration remains operative, clearing the way for INEC to commence the process for a by-election in Udu State Constituency.
Meanwhile, during Tuesday’s plenary, the Assembly also passed the Delta State Public and Private Properties Protection (Amendment) Bill through second reading and referred it to the Joint House Committees on Housing, Urban Renewal, Lands and Survey for further legislative work.
The House equally received the 2025 audited financial statements of the state’s 25 local government councils from the Office of the Auditor-General for Local Government and referred the reports to its Committee on Public Accounts for scrutiny.