The Federal High Court in Abuja has dismissed a suit by the Peoples Democratic Party (PDP) seeking to remove Benue State House of Assembly member Anthony Attah from office following his defection to the All Progressives Congress (APC).
Justice Muhammed Garba Umar delivered the judgment on Tuesday in suit FHC/ABJ/CS/2408/2025. The court held that while Attah did not deny defecting from the PDP to the APC, the judiciary cannot assume the constitutional powers vested in the Speaker and the Benue State House of Assembly to declare a legislative seat vacant.
The PDP had sued the Independent National Electoral Commission (INEC), the APC, and Attah, who represents Okpokwu Constituency. The party asked the court to determine whether votes cast for a political party can be transferred to another party after a legislator defects. It also sought declarations that Attah’s continued occupation of the seat was unlawful, that all legislative actions taken since his defection were null and void, and that he should refund salaries and privileges received after leaving the PDP.
In his ruling, Justice Umar noted that the plaintiff’s case centred on the defection of the third defendant, who won the election under the PDP, and that Attah did not deny his move to the APC. However, the judge emphasized that the constitutional procedure for declaring a seat vacant had not been completed.
“The announcement of the defection of the third defendant from the plaintiff to the second defendant is not enough,” Justice Umar stated. He explained that under Section 109 of the 1999 Constitution, the House of Assembly must first declare the seat vacant, after which the Speaker is required to communicate the vacancy to INEC for the conduct of a bye-election.
“Unless and until this is done, the first defendant cannot act,” the judge ruled. “Therefore, this court cannot usurp the powers of the Speaker or the honourable members of the House of Assembly.”
Justice Umar also rejected a preliminary objection challenging the competence of the suit, holding that the originating summons disclosed a reasonable cause of action. He dismissed the substantive suit, concluding that the application had no merit.
The ruling reinforces the constitutional separation of powers between the judiciary and the legislature in matters of legislative vacancy. It affirms that the process for replacing a defecting lawmaker rests solely with the House of Assembly and the electoral commission, not the courts. The decision leaves the PDP’s remedy, if any, within the internal mechanisms of the Benue State House of Assembly.
