In set above is the scale of justice beckoning on a possible verdict.
By Ibeawuchi Ambrose Uwaleke (Advocatenewsng.com) 09064186047.
AS the emergency rule declared in Rivers State by the Renewed Hope Administration of President Bola Ahmed Tinubu ends this month with the possible hope of restoring the democratic structures in the state, the suit filed by the PDP governors challenging the veracity of the President’s powers to dismantle the office of the governor, that of his deputy and members of the State House of Assembly is still pending at the Supreme Court with no possible time to hear it in sight.
A total of 11 governors of the People Democratic Party, PDP initially filed the suit at the apex court challenging the powers President Tinubu has to declare state of emergency in Rivers State and to suspend the democratically elected officials of the state.
President Tinubu had on March 18, this year declared a state of emergency in Rivers State and suspended Governor Siminalayi Fubara, the Deputy Governor, Mrs Ngozi Odu and all elected members of the Rivers State House of Assembly for an initial period of six months.
Following the suspension of Fubara, the president appointed Vice Admiral Ibok Ete Ibas (Rtd) as the Sole Administrator to oversee the affairs of the state pending the period of the suspension of the state officials.
Aggrieved by the suspension meted out to one of their own, the 11 PDP governors approached the Supreme Court to challenge the suspension, the declaration of emergency rule in Rivers State and the appointment of the Sole Administrator.
The governors in the suit marked SC/CV/329/2025 which was filed on April 9, 2025, predicated their writ of summons on eight grounds.
The plaintiffs in the suit are the governors of Adamawa, Akwa Ibom, Bauchi, Delta, Enugu, Osun, Oyo, Plateau, Taraba, Zamfara, and Bayelsa states.
The governors urged the Supreme Court to determine if the President had the powers to suspend a democratically elected structure of a state.
They also urged the court to determine if the way and manner the President pronounced the state of emergency declaration in Rivers State was not in contravention of the 1999 Constitution.
Among others, all the 11 governors in the suit filed through their state Attorneys General and prayed the court to determine the following:
. Whether upon a proper construction and interpretation of the provision of Sections 1(2), 5(2), 176, 180, 188 and 305 of the Constitution of the Federal Republic of Nigeria, 1999, the President of the Federal Republic of Nigeria can lawfully suspend or in any manner whatsoever interfere with the offices of a governor and the deputy governor of any of the component 36 states of the Federation of Nigeria and replace same with his own unelected nominee as Sole Administrator, under the guise of or pursuant to a proclamation of a State of Emergency in any of the states of the Federation, particularly in any of the plaintiffs’ states.
. Whether upon a proper construction and interpretation of the Provisions of Sections 1(2), 4(6), 11(4) &(5), 90, 105 and 305 of the Constitution of the Federal Republic of Nigeria 1999, the President of the Federal Republic of Nigeria can lawfully suspend the House of Assembly of any of the component 36 states of the Federation of Nigeria under the guise of or pursuant to a Proclamation of a State of Emergency in any of such states, particularly in any of the plaintiffs’ states.
. Whether the consequent threat by the first defendant acting on behalf of the President to the states of the Federation, including the plaintiff’s states, to the effect that the offices of the governor and deputy governor of the states can be suspended by the President by virtue of a proclamation of a state of emergency, is not in contravention of the Provisions of Sections 1(2), 4(6), 5(2), 11(2) and (3) of the Constitution of the Federal Republic of Nigeria 1999 and inconsistent with the principles of constitutional federalism.
Meanwhile the National Assembly has already filed its response to the plaintiffs’ suit.
In a preliminary objection dated April 22, 2025, accompanied with a counter- affidavit, the second defendant urged the apex court to dismiss the suit for lack of locus standi.
It argued that the court lacks the jurisdiction to entertain the suit and should award N1bn in costs against the plaintiffs for filing what it termed a “frivolous and speculative suit.”
The National Assembly argued that the PDP governors had not shown that they suffered anything far and above any other persons or people of Rivers State to warrant their institution of the suit.
As things stand today in this matter, it is doubtful whether the governors stand a chance of convincing the apex court to agree with their point of view considering the fact that a similar action was instituted in 2004 in the case of Governor Joshua Dariye of Plateau State who was equally suspended by President Olusegun Obasanjo, and Plateau State with the authority of the suspended governor challenged his suspension at the Supreme Court to no avail.
Here are the facts of that case which are likely to affect the outcome of the present suit instituted by the PDP governors to save one of their own, Governor Fubara.
In opposition to the originating summons filed by the plaintiffs in Dariye’s case, the President as the first defendant filed a counter affidavit. In a further counter affidavit sworn to by the then appointed Sole Administrator, Major General M. Chris Alli (Rtd.) who was in charge of administering Plateau State during the period of the emergency deposed as follow:
. That I have the authority of the first plaintiff to depose to this affidavit.
. That there were civil disturbances in the Northern and Southern Zones of Plateau State between September, 2001 and May, 2004 which resulted in extensive loss of lives and property.
. That as a result of the breakdown of law and order, a state of emergency was declared in Plateau State by the President and Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria on 18th May, 2004.
. That pursuant to the declaration of the state of emergency in Plateau State by the President and Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria on 18th May, 2004, the executive governor and deputy governor of Plateau State and State House of Assembly were suspended.
. That flowing from the above, the President and Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria nominated me as an Administrator to administer the affairs of Plateau State for an initial period of six months effective from 19th May, 2004 subject to the ratification of the National Assembly.
. That the National Assembly ratified the suspension of the executive governor and deputy governor of Plateau State and the Plateau State House of Assembly and also my nomination as the Administrator of Plateau State to administer the affairs of Plateau State for the period of six months.
. That as the officer conferred with the executive powers to administer Plateau State, I have not instructed anybody whomsoever to institute any action challenging the validity or otherwise of the constitutional exercise of powers by the President and the National Assembly with regard to Plateau State.
. That it is only I, as Administrator of Plateau State, or any other person delegated by me, who can competently instruct counsel to institute an action or authorize proceedings on behalf of Plateau State.
. That I have neither authorized the institution of any such action nor have I delegated such authority to any other person so to do.
. That the 2nd plaintiff/respondent having been suspended pursuant to the state of emergency (Plateau State) Proclamation, 2004 did not instruct anybody to sue on its behalf.
. That the chief executive of the 1st plaintiff and 2nd plaintiff having been suspended pursuant to the state of emergency (Plateau State) Proclamation, 2004 did not institute this action as they lack the competence to do so.
The question therefore is whether the PDP governors intend to make a statement or to achieve result by bringing this action through their Attorneys General on behalf of Rivers State without a proper authority obtained from the one in charge of the affairs of the state at the time of the institution of this suit at the apex court, going by the outcome of a similar suit as reported in Part 967 of the NWLR (2006) in the case of Plateau State of Nigeria and House of Assembly of Plateau State v. Attorney General of the Federation and National Assembly.
The suit number is SC/113/2004 filed at the Supreme Court which convoked with full panel. They included: Muhammadu Lawal Uwais C.J.N. (Presided); Idris Legbo Kutigi, JSC. (Read the Leading Judgment); Akintola Olufemi Ejiwunmi, JSC; Niki Tobi, JSC; Dahiru Musdapher, JSC; Ignatius Chukwudi Pats-Acholonu, JSC, and George Adesola Oguntade, JSC.
It was a unanimous decision of the apex court to throw away the plaintiffs’ action and reinstated the powers of who can invoke the original jurisdiction of the Supreme Court to seek reliefs.
Part of that judgment is reproduced hereunder:
On effect of non-authorization of suit on competence of court, the Apex Court held: ‘A court is said to be competent to adjudicate in a matter when, among other considerations, the subject matter is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction. In this case there was no authority from the Government of Plateau State to file this suit at the time it was filed. [Mark v. Eke (2004) 5 NWLR (Pt.865) 54; Olutola v. Unilorin (2004) 18 NWLR (Pt.905) 416 referred to and applied.] (P.430, paras B-C).
On whether there can be retrospective approval to suit filed without prior authorization, the court also held: ‘There cannot be a retrospective approval for the authorization of a suit for which there is no authorization at the time of filing, because something cannot be put on nothing. In this case, when the suit was purportedly filed on 24/6/2004, there was no authorization to file it by the Sole Administrator who, during the period of state of emergency, was the only person who could have authorized the filing of the suit on behalf of Plateau State of Nigeria. Therefore, when the state of emergency ended, the governor of the state, on returning to the helm of affairs of the state could not give a retrospective approval to the filing of the suit. There was no suit properly filed and therefore nothing to ratify. (Pp.392-393, paras A-B.
On condition precedent to invoking the original jurisdiction of the Supreme Court, the Apex Court said: ‘In order to invoke the original jurisdiction of the Supreme Court there must be a “dispute”; and the word “dispute” has been defined as the act of arguing against, controversy, debate, contention as to right, claims and the like or on a matter of opinion.” In this case there was no dispute between the Administrator of the state and the defendants at the time the action was filed and therefore the Supreme Court had no jurisdiction, power or authority to adjudicate over the suit. [A.G. Bendel State v. A.G. Federation (1982) 3 NCLR 1; A.G Federation v. A.G. Abia State (2001) 11 NWLR (Pt.725) 689; A.G. Federation v. A.G. Imo State (1983) 4 NCLR 178; Ebhodaghe v. Okoye (2004) 18 NWLR (Pt.905) 472 referred to and applied.] Pp. 429-430, paras H-B, D).
Per Oguntade, JSC. At pages 440-441, paras C-F-H has this to say: “It is apparent in my view that even only on the plaintiffs’ showing, this suit ought not to have been brought by the present plaintiffs. I reproduced earlier the facts deposed to in support of the amended originating summons. There is no doubt that as at 18-05-04, when a state of emergency was declared in Plateau State, the then governor was His Excellency Joshua Dariye. Following the declaration of the state of emergency, Joshua Dariye ceased to be the governor of Plateau State as his office was suspended. Under the said declaration the Plateau State House of Assembly was also suspended. It is undisputed that Major General M.C. Alli (Rtd.) became the Administrator of Plateau State on 19/05/04. He, in the capacity of administrator was completely in charge of the Government of Plateau State and all its agencies. Plaintiffs’ suit was filed on 24-06—04 at which time Joshua Dariye was no longer the de facto constitutional head of Government in Plateau State. He had neither the control over the Plateau State nor the authority to initiate an action in court in the name of the Plateau State Government…
On the facts deposed to by the plaintiffs, the wrong, if any, which was committed by the defendants, by the declaration of a state of emergency in Plateau State and the suspension of the governor and the members of the House of Assembly was to the incumbent Governor Joshua Dariye and not to the Government of Plateau State.
Further, since the government of Plateau State was under the control of Major-General M.C. Alli (Rtd.), only he alone could authorize the initiation of the suit in the name of Plateau State Government. As at 24-06-04, when this suit was brought, there was no dispute of any type between the defendants and the Plateau State Government. Clearly, therefore, the 1st plaintiff’s suit cannot be taken as one within the contemplation of Section 232(1) of the 1999 Constitution.”
On who can sue and be sued on behalf of a State and State House of Assembly when invoking the original jurisdiction of Supreme Court
By virtue of Section 20 of the Supreme Court Act and Section 3 of the Supreme Court (Additional Original Jurisdiction) Act, in any proceedings before the Supreme Court in its original jurisdiction and brought by or against the Federation of a State, the nominal parties shall be as follow:
- In the case of the Federation, the Attorney-General of the Federation;
- In the case of a State, the Attorney-general of the State;
- In the case of the National Assembly, the National Assembly; and
- In the case of the House of Assembly of a State, the Speaker of the House of Assembly.
In this case, the commencement of the action in the names of Plateau State of Nigeria and House of Assembly of Plateau State instead of in the names of Attorney-General of Plateau State and the Speaker of the Plateau State House of Assembly respectively, although wrong, is a mere procedural irregularity which can be waived or overlooked. (Pp. 397, paras A-B; 415-416, paras H-A).
On effect on its jurisdiction where proper parties not before the court-
Where proper parties are not before a court, the court is without jurisdiction to adjudicate. [Amuda v. Ajobo (1995) 7 NWLR (Pt. 406) 170; Onwunalu v. Osademe (1971) All NLR (Pt.1) 14; Ekpere v. Aforije (1972) 1 All NLR 220; Oloriode v. Oyebi (1984) 1 SCNLR 390 referred to.] P. 423 (paras B-C).
From the foregoing, it is obvious what the outcome of the PDP governors’ suit will be, if it must come from the same Supreme Court, though the eminent jurists that sat in Joshua Dariye’s case have exited the apex court to answer the natural course of justice.
