By Dr. Tonye Clinton Jaja
This whole article is inspired by a voice note that I received on my WhatsApp phone number, it is a cautionary tale about the dangers of relaince on voice notes and voice votes which has become our favourite tools to evade responsibility as Nigerians.
Based on my experience, whenever anyone wants to evade responsibility or hide evidence, the said person refuses to commit anything in writing, they prefer to put it in the form of voice notes (or voice votes as per our National Assembly).
This is because they can easily deny their previous statements as voice notes and voice votes are more difficult to ascertain unlike written notes or messages.
A certain Senior Advocate of Nigeria (SAN) phoned me to say that the Supreme Court of Nigeria raised the issue of defection Suo moto in the judgment of 28th February 2025.
It was that phone call and voice note that triggered my suspicions and causes me to read and re-read the entire judgment of 28th February 2025.
The SHOCKING DISCOVERIES THAT I MADE are what I have now reproduced in this article!!!
Let me begin by admitting my conflict of interests and a summary of the reasons why I believe that both Wike and Falana should face a panel of the Legal Practitioners Disciplinary Committee (LPDC).
While Hon. Justice Emmanuel Akomaye Agim JSC should face a panel of the National Judicial Council-NJC.
I am a beneficiary of funding from the administration of His Excellency Nyesom Ezenwo Wike (NEW) during his tenure as Governor of Rivers State. The said funds were utilised by myself and my co-author for publication of a book entitled: “Re-Visiting The Courtroom Trial of King Jaja of Opobo”. However, I have a pathology hatred for Wike’s words and actions that have plunged Rivers State into the current state of emergency!!!
Wike ought to face the LPDC to explain how he came to possess a verbatim (word for word) recital and knowledge of the Supreme Court judgment of 28th February 2015, especially the concurring judgment of Hon. Justice Chioma E. Wosu-Iheme, JSC.
Also, I myself and my NGO (ALDRAP) are both beneficiaries of funding and the goodwill of Femi Falana, SAN since the year 2015 when he first engaged my services to draft a legislative Bill to amend the Offshore Deep Production Sharing Contract Act, 2000.
However, he got it wrong when he alleged that the Supreme Court raised SUO MOTO the issue of defection of the 27 law-makers of the Rivers State House of Assembly.
Hon. Justice Emmanuel Akomaye Agim JSC was a former Chief Justice of The Gambia, a country that I regard as my second home having previously worked as a UNDP funded legal consultant for their Ministry of Justice and later given an appointment as an Associate Professor of Law/Legislative Drafting, at the Faculty of Law, University of The Gambia.
However, Hon. Justice Emmanuel Akomaye Agim, JSC is supposed to face a panel of the National Judicial Council-NJC to explain why in his judgment of 28th February 2025 he refused to comply with the previous supreme court judgments and precedents.
One of such judgments is that as a general rule the courts (laid down through a long line of decided cases such as Samuel Anyanwu vs. Udeh Okoye, Unreported delivered on 21st March 2025) would not interfere with the internal affairs of any political party such as membership.
However, the event that there are allegations of infraction of the Constitution of the Federal Republic of Nigeria, 1999 or manifest injustice or failure to comply with the rule of law, then the courts would interfere.
In this case, at pages 28 and 29 of the said judgment, Hon. Justice Agim, JSC admitted that the counsel to Governor Fubara raised the issue that the defection of the 27 Amawhule legislators of the Rivers State House of Assembly was a violation of Section 109 (g) of the Constitution of the Federal Republic of Nigeria, 1999 as well as constitutes a mischief to the Rule of Law.
In the determination of this particular issue which goes to the membership of political parties, Hon. Justice Agim, JSC failed to apply the Supreme Court precedent as set out in Hon. J. I. Ekpenkhio v. Hon. Matthew Egbadon (1962-2001)1 Legislative Law Reports of Nigeria (LLRN) pages 307 to 336, Jaja said: “The Supreme Court of Nigeria held that the court has a duty to take judicial notice of the record of proceedings of the House of Assembly as stipulated under Section 73 of the Evidence Act.
It is for the foregoing reasons that Hon. Justice Agim, JSC should appear before a panel of the NJC because the judicial Code of Conduct requires that any judge must undertake meticulous research and abide by precedents of superior courts of record.
Additionally, both Hon. Justice Agim, JSC and the Chief Justice of Nigeria (CJN) erred in adjudication of the said case with a panel of five judges of the Supreme Court of Nigeria instead of a panel of seven as is required whenever the issues require adjudication on the provisions of the Nigerian Constitution.
Sometime in March 2025, the Association of Legislative Drafting and Advocacy Practitioners-ALDRAP, had approached the Supreme Court of Nigeria to request a review of the said judgment on these grounds. The formal letter requesting the review was submitted awaiting formal response from the Chief Justice of Nigeria (CJN).
For me to arrive at the above named conclusions, I spent the entire night reading and re-reading the judgment of 28th February 2025.
I am hereunder reproducing the relevant sections of the said judgment, to demonstrate that Femi Falana, SAN was not correct when he stated that the Supreme Court of Nigeria raised the issue of defection SUO MOTO (that is by itself).
Contrary to that assertion, it was raised as an issue arising from the Cross Appeal filed by the lawyer to Governor Fubara.
Below are the excerpts as found at pages 24, 28 and 29 of the judgment of the 28th February 2025 (per Hon. Justice Emmanuel Akomaye Agim, JSC) as follows:
“The unambiguous effect of these two judgments of the Honourable Court is that as at today the 2nd Respondent (Amaewhule) 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…Let me now deal with the question of whether Ss. 102 and 109 (g) of the 1999 Constitution and the Doctrine of necessity give validity to the proceedings of the Rivers 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.
This is the main issue in cross appeal No.SC/CV/1175A/2024 filed by the Governor of Rivers State. Learned SAN for the Cross Appellant argues that the 2nd Respondent (who was the 2nd Plaintiff at the trial court) and 26 others were no longer members of the Rivers State House of Assembly having defected from the political party platform on which they were elected members of the Rivers State House of Assembly thereby actuating the provisions of Section 109(g) of the Constitution of the Federal Republic of Nigeria, 1999, that from the moment the 2nd Cross Respondent and the 26 others moved to become members of another political party, they automaticallyvacated their seats and could under no circumstances be considered as members of the Rivers State House of Assembly, that this must be so to forestall the mischief of the aforesaid provision which is the unsavoury practice of cross-carpeting by politicians without consequences.
For these submissions, he relied on the decisions in Abegunde v. Ondo State House of Assembly (2015) 8 NWLR (Pt. 1461) 314 @ 368-370 paras C-D and Federal Electoral Commission (FEDECO) v. Goni (1983) 2 SCNLR.”
Let me conclude by quoting Femi Falana SAN, regarding why it is important for lawyers to CRITIQUE the judgments of the Supreme Court of Nigeria as follows:
“Legal Right To Criticise
Citing Section 39 of the Nigerian Constitution and Article 9 of the African Charter on Human and Peoples’ Rights, Falana insisted he had a legal right to criticise court judgments….The human rights lawyer said, “I would have ignored the minister’s latest gratuitous attack, but he recently urged the Body of Benchers to sanction lawyers who criticise judgements of Nigerian courts,” Falana continued.
“Unlike Mr Wike, who calls judges names when they disagree with his politics of opportunism, I have always criticised judicial decisions with utmost decorum and in good faith,” he said.
Referencing the landmark case of Adegoke Motors Ltd v Adesanya (1989) 3 NWLR (Pt 109) 250, Falana reminded Wike that even the Supreme Court acknowledges the fallibility of its judgements.
“As Justice Oputa famously stated, ‘We are final not because we are infallible; we are infallible because we are final,’” he noted.
Falana also cited former Chief Justice of Nigeria, Ibrahim Tanko Muhammad, who once encouraged legal practitioners to criticise court decisions constructively to ensure accountability and improve the justice delivery system.”
The views expressed by contributors are strictly personal and not of Law & Society Magazine.
