➥ CASE SUMMARY OF:
Rivers State House of Assembly & Ors. v. The Government of Rivers State (Siminalayi Fubara) & Ors. (Friday the 28th of February 2025)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Quorum of House of Assembly;
Appropriation law.
➥ CASE FACT/HISTORY
The appellants herein on 15-7-2024 filed an originating summons commencing Suit No. FHC/ABJ/CS/984/2024 in the Federal High Court at Abuja against the respondents claiming for, inter alia – A Declaration that the 1st Defendant (Central Bank of Nigeria) is not entitled to release any amount, money, fund or revenue standing to the credit of Rivers State in the Consolidated Revenue Fund of Rivers State domiciled at the Central Bank of Nigeria including all allocations and revenue receipts from the Federation Account Allocation Committee (FAAC) due to Rivers State from the Federation Account or from any other source to the 2nd Defendant or any other bank, being the commercial bankers of Rivers State Government or any other person until the fund has been duly charged with the relevant expenditure.
After hearing both sides on their respective affidavits and addresses, the trial court on 30-10-2024 delivered judgment in favour of the plaintiffs (appellants herein) granting them the reliefs claimed for. Dissatisfied with this judgment, the 8th respondent herein appealed against it to the Court of Appeal as Appeal No.CA/ABJ/CV/1293/2024.
Following the filing, exchange and adoption of written addresses, the Court of Appeal on 13- 12-2024 delivered judgment allowing the appeal to it against the judgment of Federal High Court on the ground that the trial Federal High Court lacked the jurisdiction to entertain and determine the said suit and struck it out, but on the merits, dismissed the appeal. This Appeal No.SC/CV/1174/2024 is against this judgment of the Court of Appeal.
➥ ISSUE(S)
I. Whether Central Bank of Nigeria (4th Respondent herein) and Accountant General of the Federation (7th respondent) can validly release funds belonging to Rivers State to the Rivers State Government without a valid Rivers State Appropriation Law or can be restrained from releasing funds belonging to Rivers State to the Rivers State Government without a valid Rivers State Appropriation Law?
II. Whether Ss.102 and 109(g) of the 1999 Constitution and the doctrine of necessity give validity to the proceedings of theRivers State House of Assembly constituted by less than one third of all the members of the Rivers State House of Assembly and the actions of the Government of Rivers State on the basis of such proceedings? [Cross-Appeal]
➥ RESOLUTION(S) OF ISSUES
[APPEAL SUCCEEDS]
↪️ ISSUE 1: IN APPELLANT’S FAVOUR.
[THERE IS NO VALID APPROPRIATION LAW IN RIVERS STATE
‘4 out of 31 members of the Rivers State House of Assembly can not by any stretch of imagination constituted required quorum for transacting a legislative business of the Rivers State House of Assembly. The conduct of the Appellant in presenting the Appropriation Bill to 4 out of 31 members of the Rivers State House of Assembly is a gross violation of Section 91 of 1999 Constitution as amended he swore to uphold when he took the oath of office and oath of allegiance of the Constitution. The worrisome aspect of the Appellant’s conduct in this matter is that he has not explained why he acted in this manner. The court cannot speculate in this regard. 27 Constituencies by the Appellant’s conduct were denied representation when the Appellant purportedly signed the appropriation bill into law. The business of Rivers State House of Assembly/cannot be conducted in secret.’
‘The so called sitting of those members led by the 17th Defendants deliberating and passing the Rivers State Budget (Appropriation Bill) is a nullity and amounts to a void act in the eyes of the law. The Plaintiffs stated facts showing that the 11th Defendant carried out acts intended to stop the sitting and deliberations of the Rivers State House of Assembly led by the 2nd Plaintiffs. Also, that the 11th Defendant presented the Appropriation Bill of the State to a purported Rivers State House of Assembly other than the one led by the 2nd Plaintiff. This Court finds it strange that the 11th Defendant as Chief Executive of the State would go the extent of stoping the authentic House of Assembly from sitting through devious means such as destroying the House of Assembly complex Moreover, the Court is bemused by the fact that a bill as important as the Appropriation Bill (State Budget) for 2024 would be presented to an unconstituted House of Assembly sitting with just less than 6 members out of the 31 lawfully recognized members of the Rivers State of Assembly. Furthermore, this presentation of the budget was done in flagrant disobedience to the interim orders of this Court made 30-11-2023 but extended on the 7-12-2023’
‘The effect of this disobedience renders all the decisions including presentation and passing of the Appropriation Bill 2024 of Rivers State to be void acts. Thus, the presentation of the Bill by the 11th Defendant to the so-called House of Assembly is void, deemed not to have existed in law.’]
.
.
↪️ ISSUE 2: IN APPELLANT’S FAVOUR.
[THE CONDUCT OF THE GOVERNOR IS REPREHENSIBLE
‘Pursuant to section 91 of the Constitution, representation in the House of Assembly of the State is based on constituencies delineated in such a manner and divided in a way to reflect, as far as possible, nearly equal population, to ensure that each part of the geographical entity involved is covered. It therefore implies that by encouraging four members of the Rivers State House of Assembly out of thirty-two to constitute the basis for legislative activities the Appellant as Governor of Rivers State was operating with 12.5% of the entity constituting Rivers State. In Dapianlong&Ors V Dariye&Anor (2007) LPELR-928 (SC) the Supreme Court deprecated a scenario where one third or eight members out twenty-four which constituted the Plateau State House of Assembly and purported to have carried out the very grievous task of impeaching the democratically elected Governor of the State instead of two thirds of all the members of the said House of Assembly as constitutionally required. In a constitutional democracy, the foundation of every act must be located in the Constitution as the grund norm. Autocracy is out of place in a constitutional democracy. I therefore resolve this remaining issue against the Appellant and in favour of the 1st and 2nd Respondents. In totality therefore this appeal is bereft of merit and it is accordingly dismissed. The Judgment of the lower court is hereby affirmed. N500,000.00 cost is awarded in favour of each of the 1st-12th Respondents respectively and against the Appellant.’
‘I agree with the trial Court that the implication of the said subsisting Order of Court is that any gathering purporting to be the Rivers State House of Assembly led by any other person apart from the 2nd Respondent sits in violation of the interim order of the trial Court which was extended by an Order dated 7-12-2023 and that person acts in vain. Surprisingly on 13-12-23, in gross violation of the subsisting Order of the trial Court, the Appellant demolished Rivers State House of Assembly Complex at Moscow Road Port Harcourt and secretly arranged 4 members of the 1st Respondent led by Rt. Hon. EhieOgerenye Edison to a place outside the premises of the said House of Assembly and held a sham sitting of the 1st Respondent. The Appellant also hurriedly presented the Rivers State Budget (Appropriation Bill) to the said 4 members purporting to sit as Rivers State House of Assembly. The 4 members thereafter considered, deliberated and passed the Budget into law few hours after the said purported presentation. The Appellant within 24 hours in an indecent haste signed the Budget (Appropriation Bill) into law. The Appellant did not also place before the trial court the reason why he acted in this manner. Apart from the Appellant’s conduct being strange in a democratic setting and in contempt of the subsisting Order of Court dated 30-11-2023 and 7-12-2023 respectively, he was clearly in violation of the mandatory provisions of Section 96 of 1999 Constitution as amended of which provides: “The quorum of the House of Assembly shall be one third of the members of the House.” 4 out of 31 members of the Rivers State House of Assembly cannot by anystretch of imagination constitute required quorum for transacting a legislative business of the Rivers State House of Assembly. The conduct of the Appellant in presenting the Appropriation Bill to 4 out of 31 members of the Rivers State House of Assembly is a gross violation of Section 91 of 1999 Constitution.’
THE QUESTION OF DEFECTION CANNOT ARISE
‘The 8th respondent had collapsed the Rivers State House of Assembly. Therefore no question about any member having lost his seat in that House due to defection can validly arise. There must be a House of Assembly for any constitutional processes therein to take place. The claim that the 27 members are no longer members of the House on the basis of an alleged defection is a continuation of his determination to prevent them from participating in the proceedings of the House. It is an engagement in chicanery.’
THE DOCTRINE OF NECESSITY CANNOT BE INVOKED BY THE GOVERNOR
‘The doctrine of necessity cannot be invoked to justify the continued existence of a deliberately contrived illegal or unconstitutional status quo. It cannot be invoked to justify and protect the illegal actions of the 8th respondent and his despotic rule of Rivers State without House of Assembly. It applies to genuine situations that were not contemplated in the provisions of the Constitution or any law, which situations require the taking of some legitimate extra constitutional or extra legal actions to protect public interest. In Nyesom V Peterside (2016) NWLR (Pt 1492) 71 143 paras CD this court held that “the case at hand, no doubt calls for applicability, in the light of very serious security challenges not only in Rivers but elsewhere in the country. To my mind the doctrine will operate in circumstances where the Constitution itself cannot measure up to a situation which has arisen and where an organ set up under the Constitution is bereft of its power to function. The lower court rightly held that there was need to issue practice direction to tribunal to enable it function without hindrance in an environment with minimum guarantee of security of lives.’]
.
.
.
✓ DECISION:
‘In the light of the foregoing, I hold that Cross-appeal No SC/CV/1175A/2024 lacks merit and is hereby dismissed. The part of the judgment of the Court of affirming the judgment of the Federal High Court in Suit No. FHC/ABJ/CS/984/2024 is hereby affirmed. The said judgment of the Federal High Court in Suit No.. FHC/ABJ/CS/984/2024 is hereby restored.
For avoidance of doubt it is hereby ordered that:
‘The Central Bank of Nigeria and the Accountant General of the Federation should forthwith stop releasing and paying to the Government of Rivers State, its organs, departments and officials any money belonging to Rivers State until an Appropriation Law is made by Rivers State House of Assembly constituted as prescribed y the 1999 Constitution.’
‘The Rivers State House of Assembly Should resume sitting with all elected members forthwith.’
‘The 1st and 8th respondents shall pay costs of 5 million naira to the appellants.’
➥ FURTHER DICTA:
⦿ THE FEDERAL HIGH COURT HAS JURISDICTION
One of them claimed for an order of injunction restraining them from releasing funds belonging to Rivers State to the Rivers State Government without a valid Appropriation Law. It is glaring that these reliefs deal with the validity of the release funds belonging to Rivers State to the Rivers State Government without a valid Appropriation Law, which is an executive or administrative action or decision of the Central Bank of Nigeria and Accountant General of the Federation, agencies of the Federal Government. The claim for these reliefs give the trial Federal High Court the jurisdiction to entertain and determine Suit No.FHC/ABJ/CS/984/2024 by virtue of S.251(1)(r) of the 1999 Constitution which provides that the Federal High Court has exclusive jurisdiction over “any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies. — E. A. Agim JSC.
⦿ THE SEAT OF THE DEFECTED HOUSE OF ASSEMBLY MEMBERS ARE STILL VALID
Prior to the above decision, this court had earlier made pronouncement on the status of the House of Assembly of Rivers State in the recent case of Appeal No. CA/PH/198/2024: Hon. Martin Chike Amaewhule & 24 Ors V Rt. Hon. Victor Oko Jumbo & 5 Ors, judgmentdelivered on 4-7-2024. The appeal arose from a decision of the High Court of Rivers State on the seats of 25 members of the House of Assembly. In pungent and lucid terms that broached of no confusion, I had cause to state that:- “…accordingly agree that the High Court of Rivers State per Wali J, by dint of Section 273(3) of the Constitution of the Federal Republic of Nigeria 1999 as amended, acted without jurisdiction to have entertained the application in the first place dealing with the question whether he Appellant seats can be declared vacant, talk less of granting the far-reaching orders made. In the event this is seized with the powers declaring all the acts of the Lower Court null and void, being acts done without jurisdiction and the suit filed before it struck out for want of jurisdiction. For clarity, the suit before the lower court having been struck out, all orders made by that court were so made without jurisdiction and therefore void ab initio. The consequence thereof is that Appellants shall revert to their positions prior to when those orders were made, and all actions made or taken in consequence upon those orders by the lower court are hereby declared null and void and thereby vacated.” As a matter of fact, it is the above judgment that gave an insight on the status of all the members of the Rivers State House of Assembly by stating that the 2nd Respondent and his group are still members of the House of Assembly since the High Court had no jurisdiction to make the orders barring them on the ground that their seats are vacant. The unambiguous effect of these two judgments of this Honorable Court is that as at today the 2nd Respondent and other members of the Rivers state House of Assembly who allegedly defected are still legitimate members of the Rivers State House of Assembly and empowered to conduct the business of the House of Assembly. I abide by this well-reasoned decision of this court. — E. A. Agim JSC.
⦿ THE FEDERAL HIGH COURT HAD JURISDICTION TO ENFORCE COMPLIANCE WITH WITH JUDGEMENTS
After referring to S.287 of the 1999 Constitution that enables any superior court to enforce the judgment, turned round to say that the judgments cannot be used to cure the blatant defect in the jurisdiction of the Federal High Court in the instant case. This is wrong. The trial Federal High Court has the jurisdiction to entertain No. FHC/ABJ/CS/984/2024 that seeks to enforce compliance with those judgments. It is not unusual for judgment enforcement proceedings to name as parties thereto persons not parties in the judgment because they have official roles that will enable the enforcement of the judgment. One ready example is garnishee proceedings. So Suit No.FHC/ABJ/CS/984/2024 is not a fresh action with a subject matter independent of those judgments. It is sequel to the judgment in suit No. FHC/ABJ/CS/1613/2023. — E. A. Agim JSC.
⦿ THE COURT MUST DO EVERYTHING POSSIBLE TO MAINTAIN ITS ORDER
My Lords, democracy is anchored on the rule of law not on the rule of might. A court system cannot be maintained without the willingness of parties to abide by findings and orders of a competent court until reversed on appeal. The posture of the Appellant to the effect saying I do not like the Order made and I will not obey it” has to be condemned in the strongest terms if we are not to say good-bye to democracy predicated on the Rule of Law and not the rule of might. Where a party or a person makes an attempt to disparage an Order of Court as in this case, the court that made the Order or another Court of competent jurisdiction that is seized of the proceedings where the alleged disobedience is raised should do everything possible to protect its Order. This is to maintain the integrity and sanctity of the Court of law. — E. A. Agim JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Emmanuel Akomaye Agim, JSC
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
