By Lasisi Olagunju

On a bright, randy day in Lagos in the year 2015, a judge hurriedly used the law to dissolve a troubled marriage. Three months later, the woman was discovered impregnated by the tender-hearted judge. I pray that won’t be the case with the benevolent presidency of Bola Ahmed Tinubu and Nigeria’s local governments.

Roman orator, Marcus Tullius Cicero, said “the closer the collapse of the Empire, the crazier its laws are.” He is also credited with saying that “the more corrupt the state, the more numerous the laws.” These interventions from antiquity came to my mind as I read the Supreme Court’s epochal decision on the relationship between our states and our local governments last week.

Local governments are now free to have their money the way they had it before the 1999 constitution tied them to the apron strings of the states. Governors cryptically reacted that the judgment had relieved them of the burden of feeding those who should starve among the councils. I am interested in how the Supreme Court’s order is implemented. I am also interested in knowing the motive and the motivations of the initiators of the case. I hope the councils have not been discharged into the house of death from the bedroom of disease.

How will the states handle this situation? How did Tinubu handle his own 20 years ago? If you are bold and brave and you are in power and you have the Lagos-Ibadan press behind you, the Supreme Court and the law are nothing. On December 10, 2004, the Supreme Court, in the celebrated case on the seizure of Lagos State’s local government funds by the government of President Olusegun Obasanjo, ruled that statutory allocations be released to only the 20 local governments recognized by the constitution. Specifically, the Supreme Court ordered that: “The 57 Local Government Areas established by (Lagos) Law No. 5 are inchoate until the National Assembly passes the Act necessary under Section 8(3) of the Constitution. Therefore, the new 57 Local Government Councils are not entitled to receive funds from the Federation Account. Accordingly, the declaration sought (by the Federal Government) is granted.” That order of the apex court did not stop the then Governor Bola Ahmed Tinubu from using the funds of 20 local government councils to fund his illegal 57 councils. He did it yesterday and got what is famously known as Conference 57 – a crowd of well-heeled, monied foot soldiers of the Godfather at the grassroots of Lagos. He is doing it now, enlarging that coast to a potential Conference 774 of Halleluyah choristers. He will do it tomorrow – even if you jump into the Lagoon. Our state governors, if they want, can go learn from him.

In my column of 3 June, 2024, I expressed some fears on what was eventually unveiled last week Thursday by the Supreme Court of Nigeria. I wrote that: “Those who allowed themselves to be distracted slept last night as free people; they woke up this morning in slavery. So, please refuse to be distracted. As you discuss the president’s strange choice of anthem over people’s hunger, pay due attention to everything his government is doing. Pay more than ordinary attention to the local government autonomy case at the Supreme Court. That is a case with a potential to determine (or undermine) your freedom, the health of our country and the safety of our democracy. Why is fox suing hawk in defence of chicken? Autocracy incubates itself in populist confusion. The case is about that. We need vibrant states to checkmate the behemoth in Abuja. We need the local governments to drive development at the grassroots. The rapacious Federal is the elephant unsettling the room. Think of an imperial president with very rich 774 ‘liaison officers’ sitting as council chairmen across the country. Think of a federal government with limitless powers engaging a disparate set of 36 weakened, impotent states. Think of Nigeria as a unitary state. The court case …has the potential to achieve that. The deft moves of today have replicas in history… Think of the aftermath. Think.”

That was last month. I don’t know if it is not too late to think now.

By Mon-Charles Egbo

Nigeria is held down by economic losses and threats to lives due to the perennial insufficiency in public power supply. According to a report, “what Nigerians spend on self-generation of power – on fuelling and servicing their generators – is N16.5 trillion” yearly. Imagine the economic outcomes of investing this sum elsewhere. Yet, the federal government is seemingly indifferent.

Though there have been successive attempts the power sector is still yearning for robust interventions.

The latest was the privatization of the generation and distribution segments of the electricity value chain with Nigeria retaining the transmission component. It was designed to last for 10 years, from 2013 to 2023, for possible renewal.

Presently, the 10th Senate is investigating several messy deals perpetrated in the last administration which cumulatively heightened the debt profile of the country.

One of them is the Make-Up Gas (MUG) transaction involving the Niger Delta Power Holding Company Limited and the Calabar Generation Company Limited.

Nigeria recorded a scandalous loss in this project.

Going by the preliminary outcomes, Nigeria cannot attain availability and affordability of electricity except decisive actions are urgently taken.

Establishing the overall ineligibility of NDPHC, the panel, through its vice chairman, Senator Lola Ashiru, retorted that “looking at all these things, there is issue of capacity to enter into contract. When there is no capacity to enter into contract, what it means is that the existence of your business is in doubt. The only way we can get out of this is a total renegotiation and when you are doing total renegotiation, you must be sure of your own capacity to do business. If you are not sure of it, we will just be going round and going deeper into debt”.

The committee further lamented that “now we are talking of our own GenCos and every day of our lives we are going deeper and deeper into debts. I don’t know what we should do at this stage, but I think it is important for you to carefully restructure your business, to carefully restructure yourself and repackage all these indices into a new contract renegotiation”.

This is just a reinforcement to the persistent outcries that the licensed operators lacked the integrity, competence and capacity to discharge their obligations.

But sadly, political expediency and sundry narrow interests would not allow for necessary actions.

According to Senator Ahmad Lawan, sitting then as the president of the Senate, “the federal government in recent years has invested billions of dollars in this sector, most of which money appear to have gone down the drain as the problems of inadequate power supply continue to plague Nigeria. Even the subsequent privatisation of the sector has had no visible impact. In fact, many Nigerians believe that we allowed ourselves to be further defrauded through the privatisation of the sector”.

Continuing, “the truth is that we all know what is wrong. What we really need to do is to have the political will to take on the challenges generally. From the electricity power reform of 2005 to the privatisation of GenCos and DisCos and to what is happening today, we know that everything is a fraud”.

Fraud?

He therefore warned that “if we play the ostrich, in the next 10 years we will be talking about the same things. I think the time has come for us to have courage”.

Elsewhere, he stressed that “the distribution companies have no capacity to supply us power. We shouldn’t continue to give them money. They are private businesses. We need to review this whole thing”.

Note: “We shouldn’t continue to give them money”. Also, this was a verdict by the head of a crucial arm of the federal government which was unchallenged, even to date.

So, what happened afterwards, one may rightly ask?

Lawan’s 9th Senate investigated “all federal government interventions in the power sector since the privatisation of the sector with a view to ascertaining the adequacy of such interventions and their desired impact”.

But while Nigerians were feeling upbeat, the Senate handed down two directives.

The first was for “the Ministry of Finance to include the Nigerian Electric Power Sector in the disbursement of the proposed N500bn COVID-19 Crisis Intervention Fund in order to ameliorate the financial hazards and operational challenges” while the other was for the Central Bank of Nigeria “to allow operators in the power sector access to foreign exchange for procurement and materials”.

Nigerians were taken aback at this display of inconsistency. Rather than dealing with the identified “fraud” the government kept empowering these private investors in their desperation to milk the already ailing economy, in addition to subsidy payments.

How time flies!

Exactly four years after Lawan’s outburst there was yet another subtle threat of imminent calamity in a 10-year interval. The minister of power, Adebayo Adelabu, stunned Nigerians with the revelation that “for this sector to be revived, the government needs to spend nothing less than $10 BILLION ANNUALLY IN THE NEXT 10 YEARS”.

He had earlier justified the outrageous electricity tariff increase with the claim that the federal government owed N3 trillion to the operators in addition to about N1.5 trillion for the 2024 subsidy.

For the record, the 10th Senate twice opposed the hike without success because with the weak constitution, the legislature has its say but the executive has its way.

Meanwhile, the privatisation terms provided that Nigeria would generate 40,000 megawatts by 2020. Yet, 10 years later, it remains a herculean task exceeding 3500 despite all the successive noises about economic prosperity.

Just recently, Aliko Dangote reminded us that “nobody can create jobs with an interest rate of 30 per cent. No growth will happen. NO POWER, NO PROSPERITY. No affordable financing, no growth, no development”.

But the craving for political correctness would still not allow for the acknowledgement that the inefficiency of the regulator, the Nigerian Electricity Regulatory Commission, NERC, catalysed the “fraud” in the first place.

Realizing that the operators lacked the financial capacity and convictions to invest, but were only out to make profits, a patriotic regulator would have saved Nigeria the harrowing experience.

Bola Tinubu is the third president in the lifespan of the ill-fated privatization. His first five months in office were coincidentally the last five months of the deal.

He admitted that “10 years on, I believe it is fair to say that the objectives of the sector privatisation have by and large, not been met”.

But moving forward, “the poor performance must not continue to drag the sector down. All licensees must not only have the technical capacity to deliver on their license but must also have the financial muscles to invest to improve their operations”.

Supporting Mr President, the power minister emphasized that “10 years down the line the licenses are expiring, and it is high time for renewal. Renewal is not automatic. Any of the privatized companies that have not lived up to expectations will not have the license renewed. We have to consider whether you have complied with the terms and conditions of the licence you were given. We will look at the technical capacity of the GenCos and the DisCos. We will look at the financial credibility”.

What a reassuring presentation!

But right away, both Tinubu and his minister were mercilessly punctured with the revelation that the failed operators’ licences had since been renewed.

According to NERC, “it has been rumoured that the licenses of the DisCos will expire this year, but the truth is that the DisCos were given a 10-year license, but AS THEY TOOK OVER, the commission extended their license by five years. So, the DisCos have 15 years license. So, their license will expire five years from now which is 2028”.

This is enough proof that somebody is not actually in charge!

Who says that Adams Oshiomhole was not right in his assertion that the people driving governance are the ones sabotaging the economy?

However, Tinubu has fairly demonstrated a sense of commitment.

Within his first week in office, he exhumed and signed into law, the Electricity Bill that was passed by the 9th Assembly but was not processed. Ideally, this legislation holds a great future for the power sector, especially in the areas of empowering the states and other independent entities to produce electricity as well as the vast opportunities in the Green Economy. Again, he approved the settlement of the debts owed to the operators and exempted them from paying “withholding taxes” and also, removed the electricity subsidy, albeit, ill-timed.

Then, he created the Presidential Economic Coordination Council to among other targets, achieve “energy security”.

But respectfully, Mr President, there are already, sufficient policies. Implementation is the issue. You can only extract views from critical stakeholders to enrich the existing frameworks for purposeful implementations. Rather than billions of naira, it is better to inject discipline and efficiency in the power sector, primarily, to diminish the ‘saboteurs’. Nigerians are eager to know what informed the questionable renewal of the operators’ licences.

To fully unleash the inherent potentials of the Electricity Act, the headship of the MDAs should be about competency and capacity rather than political patronage. The minister should embody the policy direction, key performance indicators and operational framework for productivity.

Finally, Your Excellency, please, further demonstrate that yours is a forward-thinking government. Restore and renew citizens’ hopes with available, accessible and affordable electricity towards revamping the economy. It is only in this that Nigerians can believe that truly, the era of playing politics with the power sector is now buried with a genuine commitment.

Egbo is a parliamentary affairs analyst.

By Sylvester Udemezue

1. BACKGROUND

The Rivers State House of Assembly is constitutionally made up of 32 members. However, on 11 December 2023, the Speaker of the House, Hon Martin Amaewhule led about 26 other Honorable members of the House to voluntarily defect (cross-carpet) from the political party on whose platform they were elected –the People’s Democratic Party (PDP) — to the All Progressives Congress (APC). The defection happened on the floor of the hallowed Chambers of the Rivers State House of Assembly on 11 December 2023. A video clip of the defection has been found on YouTube.¹ After the defection, they were later seen being welcomed by the leadership of the APC as the then newest members of the party.² In law, defection is said to have happened when a letter of defection written and signed by a prospective defecting legislator, and addressed to the Speaker or the officer presiding, is read on the floor of the legislative House (in this case, the Rivers State House of Assembly) by the Speaker of the House or the officer presiding. It is respectfully submitted that by virtue of the provisions of Section 109(1)(g) of the Constitution of the Federal Republic of Nigeria, 1999, a legislator who cross-carpets from his political party at a time when there is no division in or merger by in his own political party, automatically loses his seat in the affected legislative House, and thenceforth ceases to be a member of the House. See the Supreme Court cases of Dapianlong v. Dariye ³ and AG Federation v. Abubakar;⁴ and the Court of Appeal case of Abegunde v. Ondo State House Of Assembly & Ors.⁵ On 13 December 2023, the remaining five members of the House (those who did not defect) organized themselves, and pursuant to Section 95 and Section 102 of the Constitution of the Federal Republic of Nigeria, 1999, reportedly elected Hon Edison Ehie as the new speaker of the House.⁶ Thereafter, on 14 December 2023, and pursuant to Section 109(2) of the Constitution, the group of five (5), acting through the speaker of the House, reportedly declared vacant the seats of the defected/cross-carpeted 27 members, and also wrote and served a Letter to the Independent National Electoral Commission (INEC) notifying the latter of the development and requesting that the INEC should prepare and conduct by-elections to fill the vacancies created by the voluntary defection of 27 members of the House.⁷  Please note the following:

1. With due respect, it is submitted that opinions suggesting that the remaining five Lawmakers (of the 32-member House of assembly) are incapacitated and cannot conduct the business of the Rivers State House of Assembly, are faulty, misplaced. It is respectfully submitted that the vacancy in the seat of 27 members does not stop the remaining five from carrying on with the ORDINARY businesses of the House. This position appears to be in line with the provisions of Sections 95 and 102 of the Constitution of the Federal Republic of Nigeria, 1999, and the pronouncement of His Lordship, Hon Justice Walter Onnoghen, JSC, while delivering the lead judgment in Hon. Michael Dapianlong & Ors v. Chief (Dr.) Joshua Chibi Dariye & Anor (supra).⁸ His Lordship held as follows:

“In the instant case, it is not disputed that 8 out of 10 members in a House of 24 membership initiated and carried out the impeachment of the 1st respondent. There is no doubt that there existed in the Plateau State House of Assembly 14 vacant seats as a result of cross-carpeting. It is my view that until the vacancies created by the carpet crossing members are filled by the process of by-election, the Plateau State House of Assembly can only transact such legislative duties that require the participation of less than 2/3 majority of ALL the members of that House, which duties definitely excludes impeachment proceedings”.

• Although the 27 Lawmakers who defected had offered as reasons for their defection (cross-carpeting), an alleged dispute over who was the National Secretary of the PDP, it is respectfully submitted that such reason is untenable judging by the position of the Nigerian Law on meaning of division of faction that would make defection  of a Lawmaker constitutional and justified. Section 109(1)(g) of the Constitution of the Federal Republic of Nigeria, 1999 provides that “A member of a House of Assembly shall vacate his seat in the House if – 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.” Section 109(2) then provides that “The Speaker of the House of Assembly shall give effect to subsection (1) of this section, so however that the Speaker or a member shall first present evidence satisfactory to the House that any of the provisions of that subsection has become applicable in respect of the member”.  In an earlier piece, I had explained the practical application and implication of section 109(1)(g):⁹

Under the Constitution of the Federal Republic of Nigeria, 1999, defection by a member of a legislative house (the National Assembly or the House of Assembly of a State) may be constitutional or unconstitutional. A constitutional defection is one that happens “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”. An unconstitutional defection occurs when the defection 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”. A major difference between a constitutional defection and an unconstitutional defection, in effect, is that in the case of the former, the defecting lawmaker does not lose his seat in the House, unlike in the latter case which results in automatic loss of his seat, meaning that his seat automatically becomes vacant. See Section 109(1)(g) of the Constitution. It’s respectfully submitted that, as I’ve explained earlier and based on available evidence, the defection by the 27 members of the Rivers State House of Assembly is a perfect example of an unconstitutional defection by virtue of which the affected lawmakers lost their seats, and accordingly ceased to be members of the House of Assembly of Rivers State. 

The case of Speaker, Cross River House Of Assembly & Anor v. Ekom & Ors¹⁰ appears to have explained the type or nature of the DIVISION or FACTIONALIZATION in, or merger by, a political party, which could validly excuse/justify a defection/cross-carpeting by a legislator in Nigeria and save the defecting legislator from losing his seat in the legislative House. The facts of the case are:

“The 1st respondent was elected to represent Obubra II State Constituency in the Cross-River State House of Assembly under the platform of the Peoples Democratic Party (PDP). In the course of being a member of the State Assembly, his party under which he was elected became enmeshed in intractable crisis and leadership tussle at the centre that led to the polarization of the party into two factions known as Modu Sheriff and Ahmed Makarfi factions and both factions were therefore engaged in multiple Court cases. As a result of this crisis, the 1st respondent took a decision to defect to the All Progressive Party (APC) which decision he communicated to the Speaker of the Cross-River State House of Assembly. However, the Speaker and the entire members of the House of Assembly took a decision and declared the 1st respondent’s seat vacant citing Section 109 (1) (g) of the Constitution.”

The Court of Appeal in its lead/leading judgment had this to say on meaning of division or faction in a political party:¹¹

“I have stated that the proviso to Sections 68 (1) (g) and 109 (1) (g) of the 1999 Constitution (as amended) creates an exception to the punishment imposed on a member defecting from the political party under platform of which he was elected into the legislative house to another party. The exceptions envisaged are that there must have been division in the previous political party, a merger of two or more political parties or factions by one of which the defector was previously sponsored…. A political faction is a grouping of individuals, especially within a political organization, such as political party, a trade union, or other group with a political purpose. A political faction could be described as “a party within a party”. It is thus an internal conflict within an organization and or a small section of a group that has broken off from or separated itself from a larger one.”

From the above, it is clear beyond doubt that the political division/faction that would be considered to be in conformity with the extant provisions of the Constitution must be “a party within a party” or “a group that has broken off from or separated itself from a larger one”. This throws up the question as to whether there was a group of faction that had broken off/away or separated itself from PDP as of 11 December 2023 when the 27 members of the Rivers State House of Assembly defected from their own political party to another. Was there another political party or association within the PDP? Was there, as of 11 December 2023, a break-away faction within the PDP, having its own separate/distinct national chairman or leader and claiming independence from the main PDP? From available evidence, the answer is obviously no! The result is that, it is humbly submitted, the defecting 27 Honourables of the Rivers State House of Assembly have lost their seats, and have accordingly, since 11 December 2023, ceased to be members of the Rivers State House of Assembly. However, notwithstanding that they had lost their seats and thereby ceased to be members of the House, the group of 27 Honorables led by Hon Martin Amaewhule had continued to “sit” as members of the House. They had even proceeded to issue an Impeachment Notice on the Governor of Rivers State, although they later withdrew the Notice,¹² following a peace deal brokered by President Ahmed Tinubu.¹³ Hon Edison Ehie as the Speaker of the House of Assembly later resigned his membership of the House and was appointed the Chief of Staff to Governor Fubara of Rivers State.¹⁴  However, following the collapse of the peace deal brokered by president Tinubu, the remaining members of the Rivers State House of Assembly elected one Hon Victor Oko-Jumbo as their new Speaker.¹⁵ On 09 May 2024, the House of Assembly, led by Hon Victor Oko-Jumbo filed a lawsuit (Suit No: PHC/1512/CS/2024: Oko-Jumbo & 5 Ors v. Amaewhule & 24 Ors) at the High Court of Rivers State sitting in Port Harcourt, Rivers State, which Court on 10 May 2024 granted an ex parte order restraining Hon Amaewhule and 24 others from parading themselves as members of the Rivers State House of Assembly, pending the determination of the substantive suit.¹⁶ The Defendants (Martins Amaewhule & 24 Ors) appealed against the ex parte ruling, in Appeal No: CA/PH/198/2024 (Martin Amaewhule & 24 Ors v Victor Oko-Jumbo & 5 Ors), The Court of Appeal delivered its judgment in the appeal on 04 July 2024. A brief summary of the lead/leading judgment of the Court of Appeal (per His Lordship, Hon Justice JIMI OLUKAYODE BADA, JCA) is reproduced below:¹⁷

1. The appeal is on the jurisdiction of the Rivers State High Court to entertain Suit No: PHC/1512/CD/2024, filed by Hon Oko-Jumbo & others, as well as on breach of the appellants’ right to a fair hearing in that the order by the SHC was made ex parte. The appeal has nothing to do with the merit of the controversy regarding whether the 25 members have actually defected, whether their seats have become vacant and whether the other group may carry on with the functions of the Rivers State House of Assembly. There are six grounds of appeal; five are on jurisdiction while one is on breach of fair hearing. All preliminary objections challenging the competence of the appeal and the jurisdiction of the Court of Appeal to hear the appeal were considered and dismissed as lacking in merit;

1. On the main suit, the Court of Appeal held as follows: The Rivers State High Court has no jurisdiction to entertain the lawsuit because, by virtue of section 272(3) CFRN, 1999, the Federal High Court has exclusive jurisdiction to hear and determine cases pertaining to whether the seat of a member of the State House of Assembly has become vacant. The ex parte order granted against the appellants was wrong, because there was no situation of urgency to warrant the order made ex parte. The cause of action had arisen since December 2023. The Respondents having waited over 140 days before coming to Court, the Court should have heard all parties before making any order as there wasn’t any urgency. It was wrong for the Rivers State High Court to have made orders ex parte against the appellants in the circumstances, without granting them a fair hearing. Based on the aforesaid, this appeal has merit. The Lawsuit (SUIT NO: PHC/1512/CS/2024) filed at the Rivers State High Court (SHC) is accordingly struck out because the SHC has no jurisdiction to have entertained it.

1. Please note this: While the lead judgement of His Lordship, Hon Justice JIMI OLUKAYODE BADA, JCA, and the 2nd concurrent judgement of His Lordship, Hon JUSTICE BALKISU BELLO ALIU, JCA, merely struck out the lawsuit filed at the Rivers State High Court for want of jurisdiction, without making any order as to restoration of the status quo ante, the 1st concurrent judgement of His Lordship, Hon Justice HAMMA AKAWU BARKA, JCA granted an order of restoration of the status quo ante bellum and vacation of all actions taken pursuant to the ex parte order of the Rivers SHC, which, according to His Lordship, are null, void since the Rivers SHC had made the orders without jurisdiction.¹⁸

• MEANING OF STATUS QUO ANTE BELLUM

• Status quo ante bellum is a Latin phrase meaning “the situation as it existed before the war”.¹⁹ It is used in the legal context to preserve the last, actual, peaceable, uncontested status that preceded the pending controversy.²⁰ In the Nigerian case of Ayorinde v. AG And Commissioner For Justice, Oyo State & Ors,²¹ the Supreme Court defined status quo ante bellum to mean “the position prevailing when the defendant embarked upon the activity sought to be restrained. See Fellowes v. Fisher (1976) Q.B.122. at 141B per Sir John Pennycuick.” The phrase has also been defined as “…the situation or position prevailing before the   defendants’ conduct complained of by the plaintiff.”²² In First African Trust Bank Ltd & Anor v. Ezegbu & Ors,²³ the same Supreme Court explained:²⁴

“In Blacks Law Dictionary (5th Edition) the phrase status quo ante is defined thus on page 1264: “The existing state of things at any given date quo ante bellum, the state of things before the war. “Status quo” to be preserved by a preliminary injunction is the last actual, peaceable, uncontested status which preceded the pending controversy, Edgewater Construction Co Inc. v. Percy Wilson Mortgage & Finance Coops: 2 111 Dec. 864, 357 N.E. 2d 1307. 1314.” 

• From the above, it may be concluded that maintaining the status quo means keeping the situation of things as they were as at the time.²⁵

• CAN COURT SUO MOTU MAKE AN ORDER FOR MAINTENANCE OF STATUS QUO?

• In NERC v. Tebite,²⁶ the Court of Appeal, citing Olamuyegu v Ebun²⁷ and Akapo v. Hakeem-Habeeb,²⁸ held the view that an order of the status quo ante bellum may be granted by the court whether it is specifically asked for or not. The Court explained:

“.… it is a harmless order to ensure that peace reigns and for the safety of lives and property during the pendency of the substantive suit. Even where such application has not been formerly brought, the Court would be at liberty to make such order where harassment, threats or intimidation from either or both parties is envisaged. The meaning and/or essence of the latin maxim status quo ante bellum is the state of affairs before the beginning of hostilities. Therefore, the status quo that ought to be maintained in this case is the state of affairs that existed before the hostilities between the parties, which should be maintained until the determination of the substantive matter. …On the other hand, the Appellants have nothing to lose by the order granted that the status quo be maintained, whether there was harassment and intimidation of the witnesses or not.”

• It appears obvious that an order for maintenance of status quo is an order that need not necessarily be asked for by any party. The Court is entitled to grant such an order where the court deems it necessary, especially where in the opinion of the court, harassment, threats or intimidation from either or both parties is envisaged or where such order is necessary to prevents the Court from being foisted with a fait accompli which will diminish its integrity and sanctity and expose it to vain order. In Dangote Industries Ltd v Ocean Bean Golf and Leisure Resort Ltd,²⁹ the court explained that an order for maintenance of status quo ante bellum is a preservatory order to protect the integrity of the court, and that court possesses the inherent power to make:

“To my mind, the status quo order, wears/bears all the hallmarks of a preservatory order: an order intended to conserve the subject matter from dissipation until the determination of the suit. In other words, a preservatory order oxygenates the res in a suit and puts it in the incubation throughout the gestation period of a matter. A preservative order lubricates and enlivens the res so that a Court is not confronted with a state of complete helplessness nor its order rendered nugatory at the end of the proceedings. It prevents the Court from being foisted with a fait accompli which will diminish its integrity and sanctity and expose it to vain order. It is a Court’s armor of integrity that is domiciled in its inherent power.”

• Legal Implication/Status of an Oder of “Status Quo Ante Bellum” Made in a Concurring Judgment But Not in the Leading Judgment, and By a Minority

• In Nigeria’s appellate courts, it is regular practice for at least three or more Justices to sit in the determination of an appeal. In such courts (the Court of Appeal and Supreme Court) while each Justice writes his/her own Judgement in the determination of the appeal, there is what has come to be known as “leading judgement” which is often considered as the principal or main judgement of the court, with the others being either “concurring” or “dissenting” judgement(s). A concurring judgment is any judgment/opinion of any Justice which agrees with or deviates from the main judgment/opinion. The opinion of a Justice which disagrees with the main judgment is called a dissenting judgment.³⁰ In Bot & Ors v. Jos Electricity Distribution Plc, the Court explained:³¹

“Jurisprudentially, the postulates of brother Justice Uwais, CJN and Niki Tobi, JSC, copiously alluded to above, albeit concurring contributory judgments, same formidably form part of the lead judgment authored and delivered by Ogundare, JSC. That view is formidably anchored on the trite doctrine, that it is the concurring judgment and the lead judgment alike that crystallise into the entirety of the decision of the Court seised of the matter or appeal. See OLORUNTOBA-OJU VS. ABDUL-RAHEEM (2009) 6 MJSC (Pt. 1) 1 @ 56 paragraphs E – F….” 

A concurring judgment of a court of law forms part of the lead/leading judgment of that court; a concurring judgment is meant to complement the leading judgment by way of addition or an improvement on the issues resolved in the leading judgment. Both leading and concurrent judgments crystallize into the judgment of an appellate Court.³² The leading judgment of an appellate court constitutes the judgment of the court concerned and where there is any inconsistency between a concurring and a lead judgment, the law says that the former would give way to the extent of the inconsistency. However,³³ notwithstanding the above statement of the law, it is settled that any decision contained in the lead judgment on a particular issue which is contrary to the opinions expressed in the majority of the concurring judgment, automatically becomes a minority decision and must thereby give way to the concurring decisions.³⁴ What this means, is that if there are three justices and the two concurring judgments agree and take the same position on an issue which is not captured on the leading judgment or which is different from the opinion expressed in the leading judgment, that opinion in the concurring judgment becomes a minority opinion on ONLY that particular issue. In the present case (the 04 July 2024 judgment of the Court of Appeal in re the Rivers State scenario), the leading judgment was read by His Lordship, Hon Justice JIMI OLUKAYODE BADA, JCA.  His Lordship had merely struck out the lawsuit filed at the Rivers SHC for want of jurisdiction without including any order for maintenance of the status quo ante bellum. Also, His Lordship, Hon JUSTICE BALKISU BELLO ALIU, JCA, in her concurring judgment did not make any order as to restoration of the status quo ante bellum. It was only in the concurring judgment of Hon Justice HAMMA AKAWU BARKA, JCA that an order of restoration of the status quo ante was made. In a piece titled, “A Fair Summary Of The 04/July/2024 Judgement Of The Court Of Appeal In Martins Amaewhule V. Victor Oko-Jumbo (Appeal No: CA/PH/198/2024)”, Udemezue explains:³⁵

“While the lead [or leading] judgement of His Lordship, Hon Justice JIMI OLUKAYODE BADA, JCA, and the 2nd concurr[ing] judgement of His Lordship, Hon JUSTICE BALKISU BELLO ALIU, JCA, merely struck out the lawsuit filed at the Rivers SHC for want of jurisdiction, without making any order as to restoration of the status quo ante, the 1st concurr[ing] judgement of His Lordship, Hon Justice HAMMA AKAWU BARKA, JCA granted an order of restoration of the status quo ante and vacation of all actions taken pursuant to the ex parte order of the Rivers SHC, which, according to His Lordship, are null, void since the Rivers SHC had made the orders without jurisdiction.”

• The question then arises, whether the order for status quo made in this instance is part of the binding judgment of the Court of Appeal. In Nwani v. Bakari,³⁶ the Court of Appeal held that a concurring judgment must not deviate from or be contrary to the lead/leading judgment. Any statement in a concurring judgment which is inconsistent with or modifies the leading judgment is not binding. In that case, the Court of Appeal observed as follows:

“A concurring judgment either supports, supplements or complements the lead judgment. It does not stand on its own and cannot supplant the lead judgment. A concurring judgment is, by its name and nature, an expression of agreement with the lead judgment. It can improve and enhance the quality of the lead judgment but cannot be contrary to it. Even though a separate judgment, a concurring judgment is regarded as being part and parcel of the lead judgment. The opposite of a concurring judgment is a dissenting judgment.” 

• Again, it appears the position of the courts is that such inconsistent pronouncement in a concurring judgment is a mere obiter dictum, and according is not part of the binding judgment of the court. In the case of Chigere v. Omemma,³⁷ the Court of Appeal explained this point, relying on the judgment of the Supreme Court in Abacha & Ors. v. Fawehinmi:³⁸

“One may then ask, what is the judgment of the Court? Where a single Judge presides, the situation does not admit of any difficulty: the judgment of that Court is what may be discerned as the ratio decidendi or rationes decidendi of that case in contrast to the passing remarks, otherwise referred to as obiter dictum or obiter dicta made by the Court in the course of preparing the judgment. The problem, such as the one raised in this appeal. arises when three justices (as is usually the case in the Court of Appeal) or five justices (as is usually the case in the Supreme Court) preside over a case or an appeal wherein one of the Justices is assigned the responsibility to write the leading judgment and others under the mandatory provision of the Constitution, are obliged to render either their concurring or dissenting judgment. In such a situation, it is the leading judgment that is in legal circles, regarded as the judgment of the Court. The other judgments may respectively be a two word judgment. e.g, ‘I concur” or judgments longer or shorter than the leading judgment. The point of jurisprudential interest and of considerable interest in this appeal is the relationship of the bindingness of the ratio decidendi or rationes decidendi contained in the leading judgment on the one hand, and the other concurring judgments, on the other hand. Are they at par or are some superior to others? The jurisprudence and practice of law in this country appears to be tolerably clear: it is the ratio or the rationes contained in the leading judgment that constitutes or constitute the authority for which the case stands. All other expressions contained in the concurring judgments, particularly those not addressed in the leading judgment are obiter dictum or dicta. Obiter dicta in the leading judgment as well as in the concurring judgments may be of persuasive effect in other occasions. This is my understanding of the case.”

• While answering the question as to what the position of the law where there is inconsistency between a concurring judgment and a lead judgment, the the Supreme Court had this to say³⁹  in the case of Sifax (Nig) Ltd v. Migfo (Nig) Ltd:

“As to the issue of simple contract, Oseji JCA, said in the lead judgment that computing the limitation period shows that the respondents “are still within the ambit of the six years’ period of limitation as prescribed by Section 8(1)(a) granted that the transaction falls within the realm of a simple contract”. It was only one justice, who stated differently, in his concurring judgment, and where there is any inconsistency between a concurring and a lead judgment, the law says that the former would give way to the extent of the inconsistency – see O.S.I.EC. & Anor v. A. C. & Ors. (2010) 19 NWLR (Pt. 1226) 273 SC. So, the decision of the Court below is that the transaction is a simple contract.”

• STATUS AND APPLICATION OF THE ORDER OF STATUS QUO ANTE BELLUM MADE IN CA/PH/198/2024.

Based on the above discussions, it is respectfully submitted that the current position in Rivers State after the judgment of the Court of Appeal in Appeal No: CA/PH/198/2024, is as follows:

• The appeal revolves on the jurisdiction of the Rivers State High Court to entertain Suit No: PHC/1512/CS/2024, filed on 09 May 2024 by Hon Victor Oko-Jumbo & 5 others, as well as on breach of the appellants’ right to a fair hearing, in that the order by the SHC was made ex parte. The appeal has absolutely nothing to do with the merit of the controversy; accordingly, the Court of Appeal in its judgment on 04 July 2024, did not make any pronouncement in the case/appeal on the merit of the controversy regarding whether the 25 members had/have actually defected, whether their seats have become vacant and whether the other group may continue to carry on with the functions of the Rivers State House of Assembly. Indeed, no court in Nigeria has made any pronouncement on the merit of the controversy. Hence the merits of the controversy is governed by the position of Sections 109(1)(g) and 109(2), 92, 94, 96, 99, and 102 of the Constitution of the Federal Republic of Nigeria, 1999, as well as the cases of Dapianlong v Dariye (supra), AG, Federation v Abubakar (supra) and Abegunde v. Speaker, Ondo State House of Assembly (supra). I had referred to the three cases in all my earlier legal commentaries on the Rivers State House of Assembly brouhaha, and please permit me to refer to them once more. In Dapialong v. Dariye,⁴¹ the Supreme Court held that the 14 members of the Plateau State House of Assembly who had defected from their political party to another political party when there was no division in their own party, had thereby automatically lost their seats in the Plateau State House of Assembly. In A.G. Federation v. Abubakar,⁴² the Supreme Court of Nigeria⁴³ stated that “Members of the Senate and House of Representatives were elected by the people…. I have no doubt in my mind that the legislators have made it manifest that if any of these elective members after winning an election on the platform of a political party, later, on being a member of the Senate or of the House of Representatives, defects to another political party, he is deemed, in law, to have automatically vacated his seat in the House of which he is a member. No other interpretation can be given to the above provision. A similar provision was fashioned out for members of the State House of Assembly, Section 109(1)(g) of the Constitution which is the relevant provision…. It is manifest from the above quoted constitutional provisions that the lawmakers intended to and indeed made punishable the defection of an elected member, from the political party that sponsored him, to another political party before the expiration of the period for which the House was elected by declaring his seat vacant.” Finally, in Abegunde v. Ondo State House Of Assembly & Ors⁴⁴ the Court of Appeal followed A.G. FEDERATION v. ABUBAKAR (supra):⁴⁵ “Appellant has violated the provisions of Section 68(1)(g) of the 1999 Constitution. The consequence is that appellant has to mandatorily vacate his seat as member in the House of Representatives. The case of A.G. FEDERATION v. ABUBAKAR (2007) 10 NWLR (PT.1041) 1 AT 178 is relevant and instructive on this issue. The Apex Court per Aderemi, JSC at page 178 stated thus: “Members of the Senate and House of Representatives were elected by the people as were the President. Applying the well known principles of interpretation to the above provision of the Constitution, I have no doubt in my mind that the legislators have made it manifest that if any of these elective members after winning an election on the platform of a political party, later, on being a member of the Senate or of the House of Representatives, defects to another political party, he is deemed, in law, to have automatically vacated his seat in the House of which he is a member. No other interpretation can be given to the above provision. A similar provision was fashioned out for members of the State House of Assembly, Section 109(1)(g) of the Constitution which is the relevant provision. His Lordship further stated: -“It is manifest from the above quoted constitutional provisions that the lawmakers intended to and indeed made punishable the defection of an elected member, from the political party that sponsored him, to another political party before the expiration of the period for which the House was elected by declaring his seat vacant. No similar provision was made for the Vice-President or even for the President”.⁴⁶

• The order for maintenance of status quo ante bellum, made in the concurring judgment of His Lordship, Hon Justice HAMMA AKAWU BARKA, JCA does not form part of the binding judgment of the Court of Appeal in Appeal number  CA/PH/198/2024. It is a mere obiter dictum. The term “obiter dictum” is Latin phrase meaning “that which is said in passing,” an incidental statement. Specifically, in law, it refers to a passage in a judicial opinion which is not necessary for the decision of the case before the court. Such statements lack the force of precedent.⁴⁷ American legal scholar John Chipman Gray stated, “In order that an opinion may have the weight of a precedent…it must be an opinion the formation of which is necessary for the decision of a particular case; in other words, it must not be obiter dictum.”⁴⁸ LexisNexis gave further insight into the meaning and nature of obiter dictum in a judgment of a court of law:⁴⁹

“At the end of a case, a judge states the official reasoning for the verdict (ratio dedicendi). Whilst providing the judicial ruling, the judge often also makes comments, in relation to the facts presented, which are not binding authority and are only meant to be obiter dictum (often referred to as just ‘dictum’ or ‘obiter’). Obiter dictum statements are a remark or opinion, ‘by the way’, and not officially part of the ruling, nor precedential for other cases. Remarks or opinions of this nature are often made by way of illustration, argument, analogy or suggestion of an altered outcome if the fact of the case were different.”

• Apart from being a mere obiter pronouncement, the order for maintenance of status quo ante bellum, made in the concurring judgment of His Lordship, Hon Justice HAMMA AKAWU BARKA, JCA is a minority/dissenting pronouncement of the Court of Appeal in Appeal Number PHC/1512/CS/2024. An opinion of a Justice which deviates from the main judgment is called a dissenting opinion.⁵⁰  Also, any opinion contained in the lead or concurring judgment on a particular issue which is inconsistent with, contrary to or outside the opinions expressed in the majority of the concurring judgments, automatically becomes a minority decision and must thereby give way to the others.⁵¹ Three justices wrote and delivered their opinions in that case:

• The lead/leading judgment was read by His Lordship, Hon Justice JIMI OLUKAYODE BADA, JCA who did not make any pronouncement on maintenance of status quo ante bellum;

• The second concurring judgment of His Lordship, Hon JUSTICE BALKISU BELLO ALIU, JCA, while agreeing with the lead judgment, merely struck out the lawsuit filed at the Rivers SHC for want of jurisdiction, without making any order on the status quo ante bellum;

• The first concurring judgement of His Lordship, Hon Justice HAMMA AKAWU BARKA, JCA, while agreeing with the lead judgment, went a step further and outside the lead judgment and granted an order of restoration of the status quo ante and vacation of all actions taken pursuant to the ex parte order of the Rivers SHC, which His Lordship said were null, void since the Rivers SHC had made the orders without jurisdiction.

• Based on the above, it is respectfully submitted that particular order/pronouncement by His Lordship, Hon Justice HAMMA AKAWU BARKA, JCA on status quo ante bellum, is not only an obiter dictum but is also a minority pronouncement and as such falls out side the binding judgment of the Court of Appeal in the case.

• It therefore follows, I humbly submit with due respect, that such an order on status quo ante bellum made by only one Justice out of the three Justices, is valueless, being not only an obiter dictum, but also a minority and dissenting pronouncement of the Court of Appeal in that it deviated from both the lead judgment and majority opinion/judgments. In Yusuf & Anor v. INEC & Ors,⁵² the Court of Appeal explained the value of such a minority/dissenting pronouncement when the Court observed⁵³ that “Regardless of how eloquent or appeasing a dissenting judgment is, it still remains a minority decision of the Court, and therefore not binding. Citing and relying on it serves no purpose.”⁵⁴ In Oni & Anor v. Oyebanji & Ors,⁵⁵ the Supreme Court threw more light on the value of a minority opinion in a judgment of a Court of law:

“At this very crucial point, I have deemed it expedient to reiterate, for the avoidance of doubt that the whole essence of the dissenting views so eloquently postulated in the dissenting judgments of the three Justices (coram Peter-Odili, Eko and Saulawa, JJSC) was merely advisory, thus not binding on the parties. The term ‘dissenting opinion’ denotes a view expressed by one or more Judges who tend to disagree with the decision reached by the majority in a given appeal. Also termed ‘dissent’ or ‘minority opinion’. See BLACK’S LAW DICTIONARY 11th Edition, 2019 @ 504 – 505.

Thus, a dissenting opinion is not meant to disparage or degrade in estimation the majority decision of the Court. This is absolutory so, because a dissenting judgment or opinion, no matter how eloquently powerful, learned, or articulate, is not binding on anybody, thus cannot by any stretch of imagination serve as the judgment of the Court. Undoubtedly, the judgment of the Court is the majority judgment or decision. See ORUGBO VS UNA (2002) 9 – 10 SC 61; (2002) LPELR-277(SC) per Niki Tobi, JSC @ 30 -31 paragraph D -G; DAGGASH VS BULLAMA (2004) 14 NWLR (pt. 892) 144; FGN vs. ZEBRA ENERGY LTD (2002) 18 NWLR (PT. 798) 162.” 

• However, assuming but not conceding that any value should be attached to that order on restoration of status quo ante bellum, the right interpretation to be given to it is to say that status quo ante bellum, being the state of affairs immediately before the lawsuit was filed; that is, the state of affairs as of 09 May 2024 when the lawsuit (PHC/1512/CS/2024) was filed in court. In my opinion, based on the discussions and legal authorities provided above, the state of affairs as of 09 May 2024 was as follows:

• Hon Martin Amaewhule and 26 other Honourables who defected on 11 December 2023 had automatically lost their seats on that day. And following the declaration made by the Speaker of the House on 14 December 2023, the 27 members had ceased to be members of the Rivers State House of Assembly. Up until 09 May 2024, and even up to today, no court in Nigeria has nullified the declaration made by the Speaker of the Rivers State House of Assembly on 14 December 2023. No Court has delivered any judgment that negatives the effect of the judgments in Dapianlong, Abubakar and Abegunde’s cases referred to above. The judgment of the Supreme Court in Dapianlong v Dariye is clear beyond doubts, to the effect that the remaining members of a legislative House can continue carrying on with the ordinary businesses of the House, even after majority members have lost their seats vide defection.

• Election of Edison Ehie as the Speaker of the House on 13 December 2023 was not done pursuant to the 10/05/2024 ruling of the Rivers High Court in Suit No: HC/1512/CS/2024, but pursuant to Sections 95 and 102 of the Constitution of there Federal Republic of Nigeria, 1999, which not only empowers the House to carry on notwithstanding any vacancy in the membership of the House, but also to feel free to elect one of their own to preside as the Speaker in the absence of the Speaker and his Deputy.

• Further, after the resignation of Mr. Edison Ehie, Hon Victor Oko-Jumbo was on 08 May 2024 elected as his replacement. Election of Hon Oko-Jumbo on 08/May/2024 was not made pursuant to the 10/May/2024 ruling in Suit No HC/1512/CS/2024. Accordingly, the status of Hon Victor Oko-Jumbo as the Speaker, pending by-elections by INEC, would not be adversely affected assuming (but not conceding) that the minority order for restoration of status quo ante bellum and nullification of the all actions taken pursuant to the ex parte ruling of 10 May 2024 had any application to the circumstances. Indeed, and this is the reality, I respectfully submit, no action taken by the Victor Oko-Jumbo-led House of Assembly was taken pursuant to on the basis of the 10/May/2024 ruling in Suit No HC/1512/CS/2024 but pursuant to the Constitution of the Federal Republic and to the judgments in the Supreme Court cases already referred to in this commentary; here is a House empowered by the Constitution of the Federal Republic of Nigeria to sit and conduct the ordinary businesses of the House, pending when the Independent national Electoral Commission decides to conduct by-elections to fill the vacancies created by the defection the 27 members led by Martin Amaewhule and the additional vacancy created by the later resignation of Hon Edison Ehie. One then wonders which action of the affected House of Assembly could be said to have been nullified or otherwise adversely affected by the minority order on status quo ante bellum made by His Lordship, Hon Justice HAMMA AKAWU BARKA, JCA in Appeal Number CA/PH/198/2024.

• In conclusion, one might not be wrong if one suggested that the minority order/pronouncement by His Lordship, Hon Justice HAMMA AKAWU BARKA, JCA on status quo ante bellum, being a mere obiter dictum, as well as a minority and dissenting pronouncement of the Court (as far as that particular issue is concerned), falls outside the binding judgment of the Court of Appeal, and as such binds no one just as it is not useful to anyone. His Lordship, Obaseki, JSC was succinct in settling this principle in the case of Ige v Olunloyo⁵⁶ when His Lordship stated that “A dissenting judgment or minority judgment as it is sometimes called is not the judgment of the court under our…Constitution. It is the judgment of the majority that is the judgment of the court…. A decision of a court consisting of more than one judge shall be determined by the opinion of the majority of its members.” 

• Again, assuming but not conceding that the status quo ante order should be taken to be of any use at all, then it only means that the House of Assembly led by Hon Oko-Jumbo, being the one made up of the members recognized by the Constitution of the Federal Republic as still legitimately retaining their seats in the Rivers State House of Assembly, is the only House legally entitled and constitutionally empowered to continue to discharge the powers of the House in the manner explained by the Supreme Court in Dapianlong v. Dariye (supra) pending conduct of by-elections by the INEC.

• LEGAL EFFECT AND CONSEQUENCES OF THE OTHER 27 HONOURABLES CONTINUING TO PARADE THEMSELVES AS MEMBERS OF THE HOUSE:

It is respectfully submitted that parading oneself as a members when one has in the eyes of the law already ceased to be a member, does not make or translate one into a legitimate member. As seen from the above discussions and the legal authorities provided, the Constitution and the law are clear on who are, and who are not members of the Rivers State House of Assembly. If one has become a non-member, one’s membership is not revived merely because one continues to parade oneself as a member long after one has lost one’s membership. So in this instance, by way of an analogy, the maxim that possession is nine-tenth of ownership does not apply. It is respectfully further submitted that the fact that the group of 27 are, in the eyes of the law, no longer members of the House is beyond doubt when one puts all available, verifiable facts side-by-side the extant law on the matter. Recall that, as I have argued earlier, a court pronouncement is not a mandatory condition precedent to vacation of a defecting/cross-carpeting member’s seat in a legislative house.

In addition to the the pieces of verifiable facts found to testify to their defection, the same group of 27 have even gone ahead, of their own volition, and deposed to an Affidavit before the Federal High Court on 13 December 2023 in Suit Number FHC/ABJ/CS/1681/2023 (Martin Amaewhule & 26 Ors v INEC & 5 Ors), expressly confirming and admitting that they had on 11 December 2023 indeed cross-carpeted/defected to another political party.⁵⁸ Finally, Sections 99 and 102 of the Constitution appear relevant at this juncture. By virtue of Section 99, “Any person who sits or votes in a House of Assembly of a State knowing or having reasonable grounds for knowing that he is not entitled to do so commits an offence and is liable on conviction to such punishment as shall be prescribed by a Law of the House of Assembly”. It appears from this provision, that a member of a House of Assembly who, upon an unconstitutional defection has lost his seat in the House, would no longer be eligible or entitled to join in conducting the business of the House. Else, such a member may be considered to be committing a triable, punishable criminal offence. Meanwhile, according to Section 102, “…the presence or participation of any person not entitled to be present at or to participate in the proceedings of the House shall not invalidate such proceedings”. 

The House of Assembly of Rivers State of Nigeria, legitimately led by Hon Victor Oko-Jumbo should just continue to discharge the functions of the House to ensure that the affairs of Rivers State are not ground to a halt, pending when INEC decides to conduct the by-elections to fill existing vacancies. From the discussions and legal authorities cited above, there appears to be NO legal impediments or inhibitions to/on the Victor Oko-Jumbo-led House so continuing. It is respectfully submitted that, as I humbly believe I have been able to show in this research work, neither the Court of Appeal judgment in Appeal No: CA/PH/198/2024, nor the law nor the Constitution has put any clog in the powers of he Victor Oko-Jumbo-led House to continue to discharge the functions of the Rivers State House of Assembly as explained above.

• MESSAGE TO LAWYERS AND POLITICIANS IN NIGERIA

My message to all lawyers in respect of the Rivers State House of Assembly debacle is contained in a piece titled, “The Rivers State Assembly Imbroglio And Duty Of Lawyers To Defend Rule Of Law And Constitutional Democracy In Nigeria”.⁵⁹Lawyers have no choice than to stand by the rule of law, because if this democracy fails, it may be lawyers that would be held to account either for being majorly responsible for the failure or for not doing enough to save and sustain the system of constitutional democracy and rule of law in Nigeria. Nigerian lawyers must “bear in mind that if he be the Advocate of an individual, and retained and remunerated…services, yet he has prior and perpetual retainer on behalf of truth and justice; and there is no Crown or other license which in any case, or for any party or purpose, can discharge him from that primary and paramount retainer.”⁶⁰ On the part of Nigerian politicians, the Supreme Court of Nigeria has delivered an apt warning and caution when it said: “In all countries of the world which operate under the rule of law, politics are always adapted to the laws of the land and not the laws to politics. Let our political operators allow this time-honoured principle to sink well into their heads and hearts”.^61———-

*Sylvester Udemezue is a Legal Practitioner, Law Teacher, Rule of Law Promoter, Public Interest Law Advocate and Public Legal Affairs Analyst, in Nigeria: +2348039136749, +2348109024556. [email protected], [email protected].

————————————–

End-Notes

1.  Watch the YouTube video: “27 Rivers Assembly Lawmakers Dump PDP For APC” (YouTube, 11 Decemeber 2023) <https://youtu.be/5uX-E3yxvs0?si=tzawr3xv8aN9ncy5>. Accessed 10 July 2024. See also  Davies Iheamnachor, “27 Rivers lawmakers dump PDP for APC” (VanguardNGR, 11 December 2023) <https://www.vanguardngr.com/2023/12/breaking-27-rivers-lawmakers-decamp-to-apc-in-rivers/> Accessed 10 July 2024; Dennis Naku, “27 Rivers PDP lawmakers defect to APC” (Punch, 11 December 2023) <https://punchng.com/breaking-27-rivers-pdp-lawmakers-defect-to-apc/> Accessed 10 June 2024.

2.  Watch the video: “VIDEO: APC Receives 27 Defected Rivers State Assembly Members” (YouTube, 11 Decemeber 2023) <https://youtu.be/8LS_VTc7YBo?si=RiBPcSGsuCXVit44>.

• (SC 39/2007) [2007] NGSC 181 (27 April 2007).

• (2007) 10 NWLR (PT.1041) 1 AT 178

• (2014)LPELR-23683(CA) (pp. 78-79 paras. B)(CA). See also: Sylvester Udemezue, “Two Legal Questions About Rivers State House Of Assembly; Answers From The Appellate Courts” (TheNigeriaLawyer, 8 July 2024) <https://thenigerialawyer.com/two-legal-questions-about-rivers-state-house-of-assembly-answers-from-the-appellate-courts/> Accessed 10 July 2024

• See: Sylvester Udemezue, “Rivers State (Part 2): Can The Remaining Members Of A House Of Assembly Validly Conduct The Business Of The House After An Unconstitutional Defection By The Majority” (TheNigeriaLawyer, 13 May 2024) <https://thenigerialawyer.com/rivers-state-part-2-can-the-remaining-members-of-a-house-of-assembly-validly-conduct-the-business-of-the-house-after-an-unconstitutional-defection-by-the-majority/> Accessed 10 July 2024.

• See: Saviour Imukudo, “Fubara-Backed Rivers Speaker Declares Seats Of 27 Defected Lawmakers Vacant” (Premiumtimesng, 14 Decemeber 2023) <https://www.premiumtimesng.com/news/headlines/651425-fubara-backed-rivers-speaker-declares-seats-of-27-defected-lawmakers-vacant.html?tztc=1> Accessed 10 July 2024. See also: Sylvester Udemezue, “Rivers State: Court Pronouncement Not Necessary In Vacation Of Seat Of A Defecting Lawmaker In Nigeria (TheNigeriaLawyer, May 2024) <https://thenigerialawyer.com/rivers-state-court-pronouncement-not-necessary-in-vacation-of-seat-of-a-defecting-lawmaker-in-nigeria/> Accessed 10 June 2024.

• (APPEAL NO: SC/39/2007) reported in (2007) 3 PLR/1983/22(SC); [2007]NGSC 181 (27 APRIL 2007); (2007) LPELR-928(SC) @61
• 9.   See: Sylvester Udemezue, “Rivers State (Part 2): Can The Remaining Members Of A House Of Assembly Validly Conduct The Business Of The House After An Unconstitutional Defection By The Majority” (TheNigeriaLawyer, 13 May 2024) <https://thenigerialawyer.com/rivers-state-part-2-can-the-remaining-members-of-a-house-of-assembly-validly-conduct-the-business-of-the-house-after-an-unconstitutional-defection-by-the-majority/> Accessed 10 July 2024.

1. (2021) LPELR-55738(CA) Per MUHAMMED LAWAL SHUAIBU ,JCA (P. 21, paras. C-F)

1. Per Muhammed Lawal Shuaibu, JCA (pp. 21-22, paras. C-F, F-A):12.       Charles Opurum, “Cross Carpeting Lawmakers Withdraw Impeachment Notice Against Fubara” (ChannelsTV, 20 December 2023) <https://www.channelstv.com/2023/12/20/fubara-26-rivers-assembly-lawmakers-commence-sitting-consider-withdrawal-of-impeachment-notice/> Accessed 10 June 2024.
2. By Sylvester Udemezue, “Rivers State: Analysing the just-ended Wike-Fubara war in light of Governor Sim’s “no price is too much for peace to reign” declaration” (Law And Society Magazine, 20 December 2023) <https://lawandsocietymagazine.com/rivers-state-analysing-the-just-ended-wike-fubara-war-in-light-of-governor-sims-no-price-is-too-much-for-peace-to-reign-declaration/> Accessed 10 June 2024

14.       See: Charles Opurum, “Edison Ehie Resigns As Rivers Assembly Member” (ChannelsTv, 31 December 2023) <https://www.channelstv.com/2023/12/31/breaking-edison-ehie-resigns-as-rivers-assembly-member/> Accessed 10 June 2024.

15. Seun Adeuyi, “Pro-Fubara Lawmakers Elect Jumbo As Rivers Assembly Speaker” (Daily Trust, 08 May 2024) <https://dailytrust.com/pro-fubara-lawmakers-elect-jumbo-as-rivers-assembly-speaker/> Accessed 10 July 2024.

16. Deborah Agbalama, “UPDATED: Rivers Court Restrains Amaewhule, 24 Others From Parading As Legislators” (ChannelsTv, 10 May 2024) <https://www.channelstv.com/2024/05/10/just-in-rivers-court-restrains-amaewhule-25-others-from-parading-as-legislators/> Accessed 10 June 2024; Olayiwola Ajisafe, “UPDATED: Rivers court stops Amaewhule, 24 others from parading as lawmakers” (Punchng, 10 May 2024) <https://punchng.com/breaking-rivers-court-stops-amaewhule-24-others-from-parading-as-lawmakers/#:~:text=The%20Rivers%20State%20High%20Court%20sitting%20in%20Port,24%20other%20lawmakers%20from%20parading%20themselves%20as%20legislators.> Accessed 10 July 2024.

17. Sylvester Udemezue, “A Fair Summary Of The 04/July/2024 Judgement Of The Court Of Appeal In Martins Amaewhule V. Victor Oko-Jumbo (Appeal No: Ca/Ph/198/2024)” (TheNigeriaLawyer, 08 July 2024) <https://thenigerialawyer.com/a-fair-summary-of-the-04-july-2024-judgement-of-the-court-of-appeal-in-martins-amaewhule-v-victor-oko-jumbo-appeal-no-ca-ph-198-2024/> Accessed 10 July 2024

18. One can read the Certified True Copy of the Judgment on this link: <https://us.docworkspace.com/d/sIJjEg45D1fTItAY> Accessed 10 July 2024

19. Wikipedia

• See: legal-dictionary.thefreedictionary

• (1996) LPELR-685(SC), Per IGUH ,J.S.C (pp. 21 paras. F).

• See: In Akapo v. Hakeem Habeeb (1992) 6 NWLR (Pt. 247) 266 at 311C, per Ogundare, J.S.C;  Falomo v. Banigbe & Ors (1998) LPELR-1237(SC), per IGUH ,J.S.C (pp. 26-27 paras. G)

• (1993) LPELR-1279(SC) 

• Per WALI, J.S.C in (pp. 30-31 paras. G).

• Eyo v. Ricketts (2003) LPELR-12396(CA), Per ROWLAND (pp. 6-7 paras. E)

• (2022) LPELR-58321(CA), Per OBASEKI-ADEJUMO, J.C.A., (pp. 45-46, paras. B-B)

• (2008) LPELR 46108 (CA)

• (1992) LPELR-325, P. 58, PARAS. E – G.

• (2021) LPELR-53464(CA)Per OGBUINYA ,J.C.A (Pp. 25 paras. A).

• See: <https://barristers.ng/2022/06/12/appellate-court-judgements-the-presiding-or-most-senior-justice-determines-who-writes-the-leading-judgement/> Accessed 09 July 2024.

• (2021) LPELR-55327(SC), Per SAULAWA ,J.S.C in    (Pp. 19-20 paras. B).

• Per Adekeye, J.S.C in Oloruntoba-Oju & Ors v. Abdul-Raheem & Ors (2009) LPELR-2596(SC)  (Pp. 59-60 paras. F).

• O.S.I.E.C. v. A.C. [2010] 19 NWLR (Pt. 1226) 273 at 337-338, paras. H-A, cited in <https://stephenlegal.ng/lead-judgment-is-superior-to-concurring-judgment-but/> Accessed 09 July 2024.

• Ibid.

• Sylvester Udemezue, ‘A Fair Summary Of The 04/July/2024 Judgement Of The Court Of Appeal In Martins Amaewhule V. Victor Oko-Jumbo (Appeal No: Ca/Ph/198/2024)’ (TheNigeriaLawyer, 08 July 2024) <https://thenigerialawyer.com/a-fair-summary-of-the-04-july-2024-judgement-of-the-court-of-appeal-in-martins-amaewhule-v-victor-oko-jumbo-appeal-no-ca-ph-198-2024/> Aceessed 09 July 2024.

• (2006) LPELR-7629(CA), Per Belgore ,J.C.A, (Pp. 10 paras. C).

• (2021) LPELR-56552(CA), Per WAMBAI ,J.C.A (pp. 19-21 paras. B).

• (2000) LPELR-14 (SC) per Achike, JSC.

• Per Augie ,JSC (P. 54, paras. A-D).

• (2018) LPELR-49735(SC).

• (SC 39/2007) [2007] NGSC 181 (27 April 2007).

• (2007) 10 NWLR (PT.1041) 1 AT 178.

• per Aderemi, JSC at page 178.

• (2014)LPELR-23683(CA) (pp. 78-79 paras. B)(CA).

• Per Mshelia, J.C.A.

• See: Sylvester Udemezue, “The Rivers State Assembly Imbroglio And Duty Of Lawyers To Defend Rule Of Law And Constitutional Democracy In Nigeria” (TheNigeriaLawyer, 07 July 2024) <https://thenigerialawyer.com/the-rivers-state-assembly-imbroglio-and-duty-of-lawyers-to-defend-rule-of-law-and-constitutional-democracy-in-nigeria/> Acessed 10 July 2024.7.14

• ‘Obiter Dictum’ (Britannica, 2024) <https://www.britannica.com/topic/obiter-dictum> Accessed 10 July 2024.

• Ibid.

• ‘Obiter dictum definition’ (LexisNexis, 2024) <https://www.lexisnexis.co.uk/legal/glossary/obiter-dictum> Accessed 10 July 2024.7.14

• See: <https://barristers.ng/2022/06/12/appellate-court-judgements-the-presiding-or-most-senior-justice-determines-who-writes-the-leading-judgement/> Accessed 09 July 2024.

• See: O.S.I.E.C. v. A.C. [2010] 19 NWLR (Pt. 1226) 273 at 337-338, paras. H-A, cited in <https://stephenlegal.ng/lead-judgment-is-superior-to-concurring-judgment-but/> Accessed 09 July 2024.

• (2023) LPELR-61470(CA).

• Per Mustapha, J.C.A (pp. 25 paras. D).

• See also: Professor B.J. Olufeagba & 43 Ors v. Professor Shuaib Oba Abdul-Raheem & 3 Ors (2009) 18 NWLR page 456.

• (2023) LPELR-60699(SC) Per SAULAWA ,J.S.C (pp. 88-94 paras. B).

• (1984) LPELR-15501(SC) (pp. 9-10 paras. D).

• Sylvester Udemezue, “Rivers Crisis: Court Order Not Required For Defecting Lawmaker To Lose Seat” (CityLawyerMag, 13 may 2024) <https://citylawyermag.com/rivers-crisis-court-order-not-required-for-defecting-lawmaker-to-lose-seat/> Accessed 10 July 2024.

• A CTC of the said Affidavit can be seen here: <https://us.docworkspace.com/d/sIETEg45DtvPKtAY> Accessed 10 July 2024.

• Published by TheNigeriaLawyer on 07 July 2024) <https://thenigerialawyer.com/the-rivers-state-assembly-imbroglio-and-duty-of-lawyers-to-defend-rule-of-law-and-constitutional-democracy-in-nigeria/> Acessed 10 July 2024.7.14

• Per Mr. Justice Crampton in R. v. O’Connell et al. (1844), 7 I.L.R. 261 at 313

• Per Hon Justice Pius Olayiwola Aderemi, JSC in Chibuike Amaechi v. INEC (2008) 1 SCNJ 1; (2008) 5 NWLR (Pt.1080) 227

——————————————–

By Chidi Anselm Odinkalu

“The judiciary has immense power. In the nature of things, judges cannot be democratically accountable for their decisions. It therefore matters very much that their role should be regarded as legitimate by the public at large.”

Jonathan Sumption, Law in a Time of Crisis, 121 (2021)

For a cumulative period of 17 years between 1885 and 1905, Hardinge Giffard – who was better known as Lord Halsbury – served three tenures as Lord Chancellor. In this capacity he earned a reputation for having “appointed many undistinguished men to the Bench because of their political services to the Conservative Party.” In 1897, Lord Salisbury, one of the Prime Ministers under whom Lord Halsbury served, advised him that “the judicial salad requires both legal oil and political vinegar; but disastrous effects will follow if due proportion is not observed.” For having so manifestly got the proportions out of kilter, Nigeria could be on course for a date Lord Salisbury’s predicted effects.

Abuja, Nigeria’s federal capital, is a place where mutual intercourse between lawyers, politicians and judges is both natural and habitual. It is home to judges too numerous to count and host to the headquarters of many court systems, including the High Court of the Federal Capital Territory (FCT High Court) as well as of Nigeria’s Court of Appeal and Supreme Court. The headquarters of the Court of Justice of the Economic Community of West African States (ECOWAS Court of Justice) is also in Abuja.

The pace of production and reproduction in the courts in Abuja has been rather dizzying recently. On the penultimate day of the past working week, Nigeria’s Supreme Court in a case instituted by the Federal Government against the states issued a decision designed to make it mandatory for local government to be run only by elected officials. This judgment has unlocked a predictable scrum of both political ululation and lamentation but the risk remains that its full benefits are likely to be undermined by the well-established jurisprudence of the Supreme Court in favour of bandit ballots which support the production of leaders at all levels who lack electoral legitimacy.

The day before the Supreme Court judgment, on the approach to the fourth anniversary of Nigeria’s #EndSARs uprising of 2020, the ECOWAS Court of Justice ruled that the conduct of the Nigerian government and its security agencies in their response to the #EndSARS uprising violated the guarantees of “security of person, prohibition of torture and cruel, inhuman, and degrading treatment, rights to freedom of expression, assembly, and association, duty to investigate human rights violations, and right to effective remedy.” In effect, the Court said that the Nigerian government engaged in a cover-up of the violations that occurred during the #EndSARS protests, especially at the Lekki Tollgate in Lagos.

Weighty as they were, both of these otherwise seminal outcomes were relative non-events in the political and judicial registers of Abuja this past week. On the same day that the ECOWAS Court delivered its judgment in the #EndSARS case to a near empty gallery and the day before the Supreme Court held forth on the destination of local government funds, all roads led to the Supreme Court where the outgoing Chief Justice of Nigeria, Olukayode Ariwoola, presided over the inauguration of 22 new Justices of the Court of Appeal and 12 new judges of the FCT High Court.

Many people may have missed the number of Justices of Appeal inaugurated, however. Anyone who followed the reportage would have been forgiven for supposing that there were just two Justices of Appeal sworn in: “Wike’s wife and 21 others”, a reference to the wife of political bruiser and current Minister of the Federal Capital Territory, Nyesom Wike. Also among the new Justices of Appeal is Abdullahi Liman, Kano’s self-appointed federal King-maker. The excess political vinegar in some of these most recent elevations to the Court of Appeal sadly detracts from the tasteful salad among some others. For the sake of their own professional and career advancement in a cynical system, it is best at this time to preserve the anonymity of those deserving ones.

Among the 12 new judges of the FCT High Court, at least seven were family members of serving or living judicial figures and three were family members of persons directly involved in the appointment process. Among these, the Chief Justice of Nigeria, who presided over the appointment, had his daughter-in-law made a judge; the Chief Judge of the FCT High Court made his daughter a judge; and the President of the Court of Appeal got her daughter appointed a high court judge for the second time in three years. In 2021, Governor Simon Lalong of Plateau State had made the same daughter a judge of the Plateau State High Court.

Responding to these appointments, Access to Justice, a group that monitors judicial independence and accountability in Nigeria pointedly said that “three candidates were ineligible to be considered for such appointments in the first place at the time the vacancies were announced.” This was in reference to the daughter of the Chief Judge of the FCT High Court; the daughter of the President of the Court of Appeal; and the daughter-in-law of the outgoing Chief Justice of Nigeria. According to the group, these three appointments were a composite transaction between the CJN, President of the Court of Appeal and the Chief Judge of the FCT High Court best described “in local parlance as: ‘you scratch my back, I scratch your back.’”

To say that these three appointments clearly violate the judicial code of conduct as well as the regulations governing judicial appointments is to be kind to the lack of scruples at the helm of the current judicial appointments process in the country. It makes a joke of the judicial appointment process that someone in Nigeria can be appointed a High Court judge while holding a subsisting appointment as a High Court Judge.

In the days when the Nigerian judiciary was under credible leadership, these judicial inaugurations would passed almost as a non-event, attended only by select staff of the affected courts and by some members of the families of the new appointees. Reflecting the mood and mores of the times and consistent with the current tyranny of perverse incentives in judicial appointments, however, this swearing in was a carnival taken over by cavalcades of dubious politicians and insider dealers in perverse political influence. Following the formal swearing in of the new judges, Abuja was littered with “receptions” convoked by politicians and senior lawyers for many of the new judges.

There was good reason for the politicians to make an obligation of their noisy presence at the swearing in of the new judges. Section 14(2) of Nigeria’s Constitution loudly proclaims that “sovereignty belongs to the people of Nigeria” but under colour of “rule of law” and judicial independence, the judges have toppled the people and installed themselves as the ones who alone can elect politicians to positions of power and influence in Nigeria. Access to political office now, therefore, is a transaction that begins and rests with political access to judges. Having thus murdered the rule of law, what we now have is rule by judges under which both political power and judicial office have become bereft of legitimacy. The victim is the public good.

The week ended with a report which said that “[J]udges top [the] list of bribe recipients in Nigeria.” 15 years ago, the African Commission on Human and Peoples’ rights warned that “the courts need the trust of the people in order to maintain their authority and legitimacy. The credibility of the courts must not be weakened by the perception that courts can be influenced by any external pressure.” In Nigeria, this is now a vain hope.

A lawyer and a teacher, Odinkalu can be reached at [email protected]