Hon. Farah Dagogo was a former governorship aspirant in the 2023 Rivers State election. He was at different times a member of the National Assembly (House of Representatives) and State House of Assembly.
In this interview with DAILY POST, he gives insight into the recent Supreme Court judgement on Rivers State political crises, steps that the Governor and the House of Assembly need to take for lasting peace. He also advised against tenure elongation of Local Government chairmen just as he gave instances on how the judgement on stoppage of allocations can be challenged. Excerpts!
Is the Supreme Court order on seizure of allocations to Rivers State justified?
The principle that a smaller panel of judges cannot overrule a larger panel within the same court is fundamental to maintaining judicial consistency and stability. In the context of the Nigerian Supreme Court, this doctrine ensures that legal precedents are respected unless reconsidered by an equal or larger bench.
In Nigeria, the doctrine of stare decisis mandates that decisions of higher courts bind lower courts, and courts of equal standing should follow established precedents. Specifically, a smaller panel, such as a five-justice bench, should not overrule the decision of a larger panel, like a seven-justice bench. This hierarchy preserves the integrity and predictability of the legal system. For instance, in Sodeinde Bros. Ltd v. ACB Ltd, the Supreme Court emphasized that a five-person panel cannot overrule or depart from the decision of a panel of equal or larger number.
The recent events in Rivers State have brought this principle into sharp focus.
The crisis began when 27 members of the Rivers State House of Assembly allegedly defected from the Peoples Democratic Party (PDP) to the All Progressives Congress (APC). Under Nigerian law, specifically the 1999 Constitution (as amended) lawmakers are expected to vacate their seats upon defection unless their original party is factionalized. However, the Supreme Court found no evidence supporting the claim that these lawmakers had defected, thereby rejecting the assertion that they had lost their seats.
You recall that a five-justice panel of the Supreme Court ruled that there was no evidence of defection by the 27 lawmakers, effectively restoring their positions in the House. This decision raises concerns about adherence to judicial hierarchy, as it appears to conflict with the established precedent that a smaller panel cannot overrule a larger one. The ruling also ordered the Central Bank of Nigeria to withhold federal allocations to Rivers State until the budget was passed by the reinstated lawmakers, a move that has been criticized as punitive towards the state’s populace.
This brings to bear analysis of Judicial Authority and Case Law. The Supreme Court’s decision to have a five-justice panel address an issue previously settled by a seven-justice panel contradicts the established judicial practice of panel hierarchy and overruling precedents. Such actions can undermine the consistency and reliability of legal precedents. As noted in legal analyses, the present panel size weakens the institutional voice of the Supreme Court and is potentially harmful to its integrity.
The 1999 Constitution (as amended) stipulates that lawmakers who defect from their political parties without justifiable reasons, such as a division within the party, must vacate their seats. In this case, the Supreme Court found no evidence of defection, thereby allowing the lawmakers to retain their positions. This interpretation aligns with the constitutional mandate but raises questions about the court’s consistency in applying these provisions. I am giving all these backgrounds so you have an idea of how the law works or operates.
To your question on withholding of Federal Allocations to the state, the Supreme Court’s directive to withhold federal allocations to Rivers State introduces a complex constitutional issue. While the court aims to enforce legislative compliance, such financial sanctions could be seen as overreach, potentially violating the principles of federalism and the financial autonomy of state governments.
To surmise it, the Supreme Court’s handling of the Rivers State legislative crisis highlights critical issues concerning judicial hierarchy, adherence to constitutional provisions, and the balance of powers within Nigeria’s federal structure. Departing from established precedents without convening an appropriate panel size undermines the judiciary’s credibility and the doctrine of stare decisis. Moreover, punitive measures affecting state finances may set a concerning precedent for federal-state relations. It is imperative for the judiciary to uphold its foundational principles to maintain public trust and ensure the rule of law.
Additionally, addressing the judicial controversy in Rivers State requires a nuanced understanding of the remedies available within Nigeria’s legal framework. These remedies aim to uphold judicial consistency, respect constitutional mandates, and ensure the proper functioning of the state’s governance structures. Some of the judicial remedies include upholding precedent and panel hierarchy. The principle that a smaller panel cannot overrule a larger panel within the same court ensures stability in legal precedents.
In Nigeria, this doctrine is vital for maintaining judicial integrity. For instance, in Orubu v. National Electoral Commission & 13 Ors (1988) 5 NWLR (Pt.94) 323, the Supreme Court overruled its previous decision in Esewe v. Gbe (1988) 5 NWLR (Pt.93) 134, demonstrating the court’s ability to correct its stance when convened as a full bench. The practical advantage of this ensures that only a full bench or a larger panel can overrule a previous decision, prevent arbitrary legal shifts, thereby maintaining consistency and public confidence in the judiciary.
Another is Financial Autonomy of States. The Nigerian Constitution guarantees the financial autonomy of states, ensuring they receive federal allocations without undue interference. While the Constitution provides for the distribution of public revenue, it does not explicitly grant the judiciary the power to withhold funds as a punitive measure. In Attorney-General of the Federation v. Attorney-General of Abia State & 35 Ors (2002) 6 NWLR (Pt.764) 542, the Supreme Court affirmed the principles of federalism and the financial autonomy of states. The practical advantage of this is it upholds financial autonomy, prevents the misuse of fiscal control as a political tool, ensuring that state functions and public services remain uninterrupted. There are also legislative safeguards that address defections since that is the progenitor of the whole crises.
The 1999 Constitution (as amended) addresses the issue of political defections. Section 68(1)(g) stipulates that a member of the legislative house shall vacate their seat if they become a member of another political party before the expiration of their term, except if the change is due to a division in their previous party. In Abe v. Unilorin (2003) 12 NWLR (Pt. 834) 1, the Supreme Court held that such defections without valid justification lead to the forfeiture of legislative seats. As it relates to practical advantage, strict enforcement of anti-defection laws ensures political stability and respect for the electorate’s mandate, discouraging opportunistic party switching. There is also Judicial Accountability that ensures impartiality. The independence and impartiality of the judiciary are cornerstones of democracy. Mechanisms such as the National Judicial Council (NJC) oversee the conduct of judges, ensuring they adhere to ethical standards. In Elelu-Habeeb v. Attorney-General of the Federation (2012) 13 NWLR (Pt.1318) 423, the Supreme Court emphasized the NJC’s role in maintaining judicial discipline. Its practical advantage is that it gives robust judicial oversight that fosters public trust and deters judicial misconduct, ensuring that court decisions are based on law and not external influences.
Therefore, implementing these remedies ensures that Nigeria’s legal system operates with integrity, consistency, and respect for constitutional principles. Such measures not only resolve current disputes but also strengthen the foundation of the country’s democracy.
Are you suggesting that there are chances of reversing the Supreme Court’s ruling on Rivers State allocation?
In Nigeria, the Supreme Court is the highest court of the land. As such, its decisions are final and binding under Section 235 of the 1999 Constitution of Nigeria (as amended), which states:
“Without prejudice to the powers of the President or Governor with respect to the prerogative of mercy, no appeal shall lie to any other body or person from any determination of the Supreme Court.” This means that ordinarily, there is no appeal from a Supreme Court decision. However, there are limited options for challenging such a decision.
One of such is an Application for Review Under Order 8, Rule 16 of the Supreme Court Rules. This rule allows the Supreme Court to review its own decision in exceptional circumstances. In the case of l Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (Pt. 109) 250, the court held that it will only review its judgment in cases of; a clerical mistakes or accidental slips, fraud or misrepresentation and the absence of jurisdiction. In Ekwunife v. Wayne West Africa Ltd (1989) 5 NWLR (Pt. 122) 422, the Supreme Court reaffirmed that it has no power to sit on appeal over its own decisions except in very rare circumstances. Those circumstances include; new evidence or a fundamental jurisdictional error, a motion for review can be filed, Constitutional Amendment, the National Assembly can enact a law to reverse the effects of the judgment, provided it does not contradict the Constitution. In Attorney-General of Lagos State v. Attorney-General of the Federation (2003) 12 NWLR (Pt.833) 1, the court held that where legislation is enacted after a judicial decision, the new law can alter the legal position.
Another angle is International Human Rights Petitions. If the decision violates fundamental human rights, a petition may be filed before the ECOWAS Court of Justice or the African Commission on Human and Peoples’ Rights.
If the Rivers State Government wants to appeal the Supreme Court decision on stoppage of allocation, it will start by drafting an action plan for Challenging the Supreme Court Decision. The first step will be to Filing a Motion for Review. The grounds should be to Identify clear jurisdictional errors or miscarriage of justice in the judgment. I have already addressed some of it earlier. Another is to assemble a team of Senior Advocates specializing in constitutional law. They would be tasked with providing evidence that is if there is new evidence, such as judicial bias, procedural irregularity, and attach it to the motion, after which a Motion on Notice under Order 8, Rule 16 of the Supreme Court Rules can be filed.
The second step would be to mobilize the National Assembly for Legislative Intervention. It would involve drafting a bill to reinforce the constitutional provision on legislative defections and state financial autonomy. As a former Lawmaker, I can tell you for free that it would require lobbying and engaging lawmakers to fast-track the legislative process. The third step is the International Human Rights Petition, if applicable. It would also require filing a petition before the ECOWAS Court of Justice or the African Commission on Human and Peoples’ Rights if the ruling affects fundamental rights.
So, comprehensively, challenging a Supreme Court decision is difficult but not impossible under the right legal circumstances. A well-drafted Motion for Review, combined with legislative action, provides the best chance of reversing the impact of the ruling.
What is your take on the Supreme Court judgement that invalidated the Rivers State Local Government Elections?
The great Malcolm once said: “Our lives begin to end the day we become silent about things that matter. Also, Magie Kuhn encouraged us to speak the truth even if our voices shake! Yes, it is a very sensitive question, but when we don’t allow emotions becloud our reasoning, we will come to terms that the Supreme Court of Nigeria acted within its constitutional mandate in nullifying the October 5, 2024, Local Government Elections in Rivers State. This might be an unpopular view, depending on the perspectives, expectations and desires of some for the pendulum to swing otherwise. Nevertheless, the Court’s decision was based on facts and the Rivers State Independent Electoral Commission’s (RSIEC) failure to comply with those mandatory legal requirements, helped in rendering the election invalid.
There was the violation of Section 150 of the Electoral Act 2022 wherein the Supreme Court identified that RSIEC conducted the elections without adhering to Section 150 of the Electoral Act 2022. Specifically, the court said RSIEC did not issue the mandatory 90-day notice before the election date, a prerequisite designed to ensure transparency and adequate preparation for all stakeholders. That was why in delivering the lead judgement, the key point emphasized by Justice Jamilu Tukur, was the clear absence of evidence by RSIEC showing compliance with Section 150(3) of the Electoral Act 2010 (now 2022) before conducting the elections and that, in their estimation, rendered the process invalid.
There was also the order by the Federal High Court in Abuja that had issued an order on September 30, 2024, restraining the Independent National Electoral Commission (INEC) from releasing the voter register to RSIEC. Additionally, the court barred security agencies from providing support for the elections due to RSIEC’s non-compliance with electoral laws. RSIEC willfully disobeyed these orders and proceeded with the elections. Of course, the court frowns at these clear disobedience to judicial directives that undermines the rule of law from their perspective.
When you dutifully read the ruling, you will observe where the Court emphasized the necessity for electoral bodies to adhere strictly to legal provisions governing elections. It equally noted that RSIEC’s actions, in bypassing essential legal steps, compromised the legitimacy of the electoral process.
There are several decided cases buttressing the Court’s position. In the All Progressives Congress v. Independent National Electoral Commission & Ors (2020): the Supreme Court nullified elections conducted without adherence to the statutory notice period, reinforcing the principle that electoral bodies must comply with all legal requirements to ensure valid elections. Also, in Action Congress v. Independent National Electoral Commission (2007) 12 NWLR (Pt. 1048) 220: The Court held that failure to comply with mandatory provisions of the Electoral Act, such as voter register updates and proper notices, could invalidate an election.
In a nutshell, the apex court ruling on this subject matter was a rightful enforcement of electoral laws, ensuring that statutory requirements are met to uphold the integrity of the electoral process. That decision underscores the Judiciary’s role in maintaining constitutional order and the rule of law in Nigeria’s democratic processes.
You have responded with legal authority, interpreting with decided cases as to the reason for the ruling, nevertheless because of the charged political reactions in the state, it already seems responses are classified into either support for the camp of Governor Siminalayi Fubara or that of the FCT Minister, Nyesom Wike. Where does yours tilt?
Bryant McGill said painful truth is better than a pleasant lie. That same sentiment had been expressed by Thomas Jefferson who said honesty is the first chapter in the book of wisdom. In your question you acknowledged it, I am speaking from an unbiased angle. I am strictly and foremost for Rivers State and what will better and benefit its lots. My allegiance is not to any individual but to Rivers State and the generality of its people. As Glennon Doyle rightly said, ‘Every truth is a kindness even if it makes others uncomfortable. Every untruth is unkindness, even if it makes others comfortable’, for those who wish to deliberately misconstrue my position, the passage of time will open their eyes and expose them to the truth I am saying. I am always on the side of Justice.
Do you foresee a peaceful end to this political logjam between the executive and legislative arms and what steps would you recommend on the way forward for governance at the grassroots and the state at large?
The interest of the populace, especially those at the grassroots should be paramount and with that in mind, and with a further understanding that governance is all about the people, the camp that views the ruling as ‘victory’ and the other that seems aggrieved in your ‘classification of camps in the State’, should work towards a compromise for the benefits of the people they so professed to love.
And this is where the need for both the Executive and Legislature to sheath their swords not just as the bastion of democracy that they are, but also as the fulcrum! The judiciary comes into play only when there are irreconcilable differences that threaten to blow the very essence of democracy to the smithereens. The real political crises in Rivers State is between the Executive and the Legislature, the Judiciary is just there to adjudicate. There can be a peaceful end if both can harmonize on their differences because the truth is that the primary reason for this brouhaha is all about protection of their interests. That of the populace is secondary, this is an opinion that would not be welcomed by the protagonists on both divides as well as their prime movers. But, I have said mine the way I have observed the whole situation.
So far, the State governor said publicly that he would obey the Supreme Court judgement. He has followed it up with an invitation to the lawmakers for a meeting on how the contentious issues, including a representation of the 2025 Appropriation bill will be resolved. So, I expect the other divide to be magnanimous and meet him at a point. If all these are resolved amicably, it will be to the benefit of the people of the state.
To your question, proposing a remedy, of course, from the point of law, for the nullification of the Rivers State Local Government elections, I will strongly advocate strict adherence to legal and procedural steps based on the ruling of the Apex Court. The conduct of a fresh election in compliance with the Law is sacrosanct. The Rivers State Independent Electoral Commission (RSIEC) has already fixed an election for August, basically fulfilling the mandatory 90-day notice before the election, as required by Section 150 of the Electoral Act 2022. It then behooves RSIEC to ensure compliance with all other legal and constitutional requirements, including proper voter registration and conformity to election guidelines. There is also the need to seek necessary collaboration with the Independent National Electoral Commission (INEC) to ensure credibility.
An unpopular call, in the estimation of some, would be to call for the reconstitution of RSIEC for credibility since the court basically questioned it. The onus is on the Rivers State Government to make that change in order to restore public confidence. This new RSIEC will have to be Independent and impartial in organizing Local Government Elections in the true sense and meaning of the words. Members should compose of competent and qualified persons legally, with unblemished records who will ensure fair and transparent elections. RSIEC should avoid the pitfall of non-conformance to Judicial Precedents and Electoral Laws that was ruled against it by the court.
Very inviolable is for the State Government and particularly, the House of Assembly, to both refrain from further unconstitutional tenure extensions of local Government Chairmen and Councilors. The state governor has already jettisoned the idea of Caretaker Chairmen, the lawmakers should equally perish thoughts of tenure elongation for Chairmen whose tenures had long elapsed.
Any new law or amendment attempting to extend the tenure of Local Government officials must align with constitutional provisions and Supreme Court rulings such as: in the case of Ajuwon v. Governor of Oyo State (2021) LPELR-55339(SC) and that of the Governor of Ekiti State v. Olubunmi (2017) 13 NWLR (Pt. 1551) 7. This compliance with Supreme Court decisions ensures the rule of law is upheld and prevents further legal challenges.
The Federal Government, through the Attorney General of the Federation, can help by monitoring and speeding up compliance with Sections 7 and 162 of the 1999 Constitution, which guarantee Local Government autonomy.
The National Assembly members, particularly those from the state, can champion and consider amendments to the Electoral Act or the Constitution to close loopholes exploited by State Governments to manipulate Local Government Elections.
It is imperative for the political gladiators to consider political dialogue and consensus building. The Rivers State Governor, House of Assembly, and other political stakeholders should engage in enduring dialogue to prevent further disputes over local government administration.
It is trite at this juncture for all divides to seek political solutions to avoid further legal battles and political instability in the state. This can be done amicably since the major actors were a ‘ family’ before and immediately after elections. If truly their fights are related to the goods, wellbeing and development of the state and its people, meeting at a point and making compromises should be a non-issue.
The general belief has been that the perpetual injunction as it relates to Rivers State Government financial dealings allowing for scrutiny of government accounts cannot be vacated and as such governors and government officials from 1999 to date cannot be questioned on financial matters by relevant agencies. As a law student, what is your take on this?
A perpetual injunction or any injunction can be vacated, but only under specific circumstances. While a perpetual injunction is meant to be final and indefinite, it is not absolute, irreversible or immutable, courts retain the power to set it aside, modify, or discharge it in certain situations.
Let me cite a notable Nigerian case on vacating a perpetual injunction in: Akinbobola v. Plisson Fisko Nigeria Ltd (1991) 1 NWLR (Pt. 167) 270. In this case, a perpetual injunction was granted against the appellant, restraining him from interfering with certain land. However, the appellant later applied to have the injunction set aside, arguing that the factual circumstances had changed. In its judgement, the Court of Appeal held that while a perpetual injunction is meant to be final, a court has the power to vary, discharge, or set it aside if there is a material change in circumstances that makes the injunction unnecessary or oppressive, the injunction was obtained through fraud, concealment, or misrepresentation, public policy or justice requires its discharge.
The significance of this case reaffirmed that perpetual injunctions are not absolutely irreversible and can be vacated when equity and justice demand it. While injunctions are intended to provide indefinite protection, they can be contested if there are significant changes in circumstances or if new evidence emerges.
Relying on the rule of error, the EFCC or any agencies saddled with that responsibility can approach the Court of Appeal or Supreme Court to review and overturn the ruling. The EFCC can argue that the Federal High Court lacks the power to grant such an absolute injunction that restricts a statutory agency from performing its duties. In A.G. Lagos State v. A.G. Federation (2003) 12 NWLR (Pt. 833) 1, the Supreme Court emphasized that a court order must not hinder statutory powers of an agency unless there is clear constitutional authority to do so.
Another argument would be that the Injunction violates public policy. Courts generally disfavor injunctions that prevent law enforcement agencies from investigating crimes. In that stead, the EFCC can argue that the injunction is against public interest as it obstructs its statutory duty to investigate and prosecute corruption cases. This was exemplified in Fawehinmi v. I.G.P. (2002) 7 NWLR (Pt. 767) 606, the Supreme Court held that no individual could permanently shield themselves from investigation by law enforcement agencies.
Another ground is what we call Significant Change in Circumstances. The appellant can argue that new facts or evidence have emerged, which were not available at the time the injunction was granted. If new allegations or fresh financial irregularities surface, a court may reconsider its previous ruling. If funds allegedly misappropriated are now linked to new financial transactions, the EFCC can argue that fresh evidence warrants a review of the injunction.
Also, if the EFCC can prove that the injunction was obtained through misrepresentation of facts or concealment of material information, the court has the power to set it aside. As In the case of Olu Ibukun v. Olu Ibukun (1974) 2 SC 41, the Supreme Court held that a judgment or order obtained by fraud or suppression of material facts is liable to be set aside.
A legislative intervention from the National Assembly can be sought by passing a law limiting the use of perpetual injunctions against investigative agencies like the EFCC. The Commission can lobby for legislative reform to prohibit courts from granting absolute immunity against investigations.
There are cases reaffirming that courts have the power to vacate a perpetual injunction when enforcing it would lead to injustice or contradict public policy.
Ladunni v. Kukoyi (1972) 1 All NLR (Pt. 1) 13. In this Nigerian case, the Supreme Court emphasized that a perpetual injunction is final but can be set aside if there is a fundamental change in circumstances or if it was granted based on an error.
Cooper v. Reynolds, 77 U.S. (10 Wall.) 308 (1870) This U.S. case established can be cited as well because as a constitutional matter, received English Laws are also applicable in our country. This case noted that an injunction can be vacated if the basis for its issuance ceases to exist. The court ruled that an injunction must not continue indefinitely if the reasons for its existence are no longer valid.
In the case of Board of Education v. Dickey, 76 W. Va. 51, 84 S.E. 953 (1915) the court held that a perpetual injunction is not truly “perpetual” if equity demands its modification due to significant changes in circumstances.
Also in that of R v. Secretary of State for Transport, ex parte Factortame Ltd (No. 2) [1991] 1 AC 603, while primarily about interim injunctions, this UK case reaffirmed that injunctions (including perpetual ones) may be modified or lifted if legal principles change.
How Rivers Govt can approach S’Court judgement on allocation stoppage – Farah Dagogo
