₦airaland Forum

A supreme court ruling in 2006 effectively bars Siminalayi Fubara, the suspended governor of Rivers state, from approaching the court to seek an enforcement of his rights, TheCable can report.

However, he can initiate an action at the federal high court but chances of a speedy resolution are bleak, according to lawyers who spoke with TheCable.

In a live national broadcast on March 19, President Bola Tinubu announced the six-month suspension of Fubara, his deputy, Ngozi Odu, and all members of the state assembly.

Fubara is a member of the leading opposition party, the Peoples Democratic Party (PDP).

He also appointed retired Vice-Admiral Ibok-Ete Ibas as the state’s administrator.

While Section 305 of the 1999 Constitution (as amended) grants the president the authority to declare a state of emergency under specific conditions, legal experts have argued that suspending a sitting governor, deputy governor, and lawmakers exceeds the constitutional powers of the presidency.


LACK OF LOCUS

On May 18, 2004, then-President Olusegun Obasanjo declared a state of emergency in Plateau state following violent ethnic and religious clashes.

He suspended Joshua Dariye, the governor, and the state legislature, appointing a retired general, Chris Alli, as the state’s sole administrator.

Aggrieved, the Plateau state government and the state house of assembly filed a lawsuit at the supreme court (SC. 113/2004) on June 24, 2004, challenging the president’s actions.

However, the defendants — the attorney-general of the federation (AGF) and the national assembly — objected, arguing that the plaintiffs lacked the legal standing (locus standi) to sue on behalf of the state.

Alli, as the appointed administrator, also filed a counter-affidavit stating that he had not authorised anyone to challenge the president’s decision in court.

“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 national assembly with regards to Plateau state,” Alli averred.

Delivering judgment on January 20, 2006, a seven-member panel of the apex court led by then-chief justice of Nigeria, Muhammadu Uwais, struck out the case on jurisdictional grounds.

Idris Kutigi, who delivered the lead judgment, ruled that the appointed administrator had full control of the state and had not given consent for the suit.

Since there was no legal dispute between the administrator and the federal government, the court lacked the original jurisdiction to hear the case, he said.

“My conclusion therefore is that the 1st and 2nd plaintiffs did not authorise this suit and no instruction was given for filing same at the time it was filed,” Kutigi held.

“The suit having been filed without the authorisation by the plaintiffs deserves one thing only. That one thing is simply to strike out the case in its entirety.”

This precedent means Fubara cannot sue in the name of the Rivers state government since he no longer holds executive authority under the state of emergency.


CAN’T FILE IN PERSONAL CAPACITY

The supreme court, in Plateau State v. Attorney-General of the Federation, also clarified that under Section 232(1) of the 1999 Constitution, it only has original jurisdiction over disputes between the federal government and a state — not cases filed by individuals in their personal capacity.

The court struck out all reliefs sought on behalf of Dariye, the deputy governor, members of the house of assembly, and state commissioners, ruling that it lacked jurisdiction to entertain their personal grievances.

This sets a precedent: Fubara cannot personally approach the supreme court to challenge his suspension.

Other governors elected on the platform of the PDP have resolved to approach the supreme court to challenge the declaration of emergency rule.

Fubara is notably not listed as a plaintiff.


SOLACE AT THE HIGH COURT, PEHARPS?

If Fubara cannot seek redress at the supreme court, could the federal high court offer an alternative legal pathway?

The federal high court has jurisdiction over cases involving the enforcement of fundamental rights, constitutional interpretation, and disputes involving the federal government.

Under Section 251 especially subsection (r) of the 1999 Constitution, the court can hear cases where the federal government or any of its agencies is a party.

This raises the question of whether Fubara or not can challenge his suspension by arguing that it violates his fundamental rights or seek judicial review arguing that his suspension exceeds presidential powers.

Ultimately, while the federal high court might offer a window for legal action, success would depend on whether Fubara’s legal team can establish that the president acted beyond his constitutional powers.

Even then, lawyers contend the case would likely face objections from the federal government and could take years to resolve — by which time the six-month suspension would have lapsed.

Moroccoguy:
Tinubu na Mafia, he calculate well before he strikes, he know that no court will stop him.

owobokiri:
Puerile reasons!
It's The Lagos ibadam express way mercenary press houses.., they are at it again doing what they know how to do best. This one here is trying to make it look like the supreme Court will not favour Fubara in court if the hearing is based on the constitutional dictates as they exist today.. Bullshyt.. The Supreme Court looks compromised.

If Fubara refuses to go to the socalled Supreme Court, it is because he understands as many Nigerians do, that the highest court in the land is now in the bags of th3 APC/Tinubu/Nyesom Wike. It is as simple as that. This very Supreme Court of today will never rule for the opposition untill a fundamental shift happens in the way government is run in Nigeria . If it is today, people like Peter Obi would not have gone back to Anambra government house based on the Supreme Courts ruling.. That's if APC was at the centre..

A Court that foisted 4th placed Hope Uzodimma on Imo people as their governor, and then went ahead to authenticate the most fraudulent presidential electoral heist in Nigerias history as being free and fair, is not a court that is serious in upholding justice and equity. If I am in Fubaras shoes, I won't approach the evil Supreme Court too..

Agbegbaorogboye:
Una no kuku dey read
Neither are you interested in understanding anything
Your own is just too be looking for the opportunity where you can lick Tinubu's behind
If you had read you'll have seen that other states can sue
O ga o
Nigerian youths abi na Lagos agberos

richie240:
If d only tin Tinubu fit do till 2027 na to put anambala state under 6 months lock and key, e don do for me.

All ds una gragra go reduce!

givedemwotowoto:
The justice system is messed up! Justice Uwais and his team set the stage for abuse. A governor was unconstitutionally suspended and rather than give him back his office, you say the new administrator didn’t authorize the lawsuit. But the new administrator is not the head of the state government. He’s only leading an emergency situation in the state.

fergie001:
I have read that 2006 judgement, Fubara does not have the locus because by law, he isn't signing the cheque in Rivers.

However, any Governor can proceed to the Supreme Court to test its constitutionality and join both Fubara & the new administrator as parties to the suit.

I made same observation here earlier...
https://www.nairaland.com/8373114/rivers-national-assembly-duly-consulted/2#134605407

Agbegbaorogboye:
Boring
Try again

richie240:
You are lucky to have a logical governor in Soludo, or else.......

.....e for red foram!

Den nor dey telli person!

Agbegbaorogboye:
By which law
Is there anything called sole administrator in our laws
So how can the law recognise something that does not exist over something that exists

Islie:
https://www.thecable.ng/exclusive-why-fubara-cannot-go-to-supreme-court-over-suspension/

Nlfpmod

gidgiddy:
I'm not a Lawyer, but my little knowledge of the law tells me that Fubara does not need to challenge his removal at the Supreme court

What I think he should do is approach the Supreme court to determine if the President has any constitutional right to remove a democratically elected sitting Governor under any circumstances

The Supreme court has previously ruled that a Governor can only be removed in one of 4 ways: Resignation, impeachment, incapacitation and death

The Supreme court said nothing about State of emergency

fergie001:
As long as both houses have passed their resolutions, it exists.

It is now the Courts who will help deal with it.... A similar case that emanates through Dariye met his waterloo.

fergie001:
As long as both houses have passed their resolutions, it exists.

It is now the Courts who will help deal with it.... A similar case that emanates through Dariye met his waterloo.

Agbegbaorogboye:
Secondly, does suspension of a governor and house mean they no longer exist?

Let us imagine a situation where the deputy governor of a state becomes acting governor, does that means in the eyes of the law the governor no longer exists?

fergie001:
1. The Governor & House of Assembly members do exist.

2. The situation is different.
You cannot approach the Supreme Court directly on these cases because you have been removed, rightly or wrongly. Fubara can approach the Federal High Court but not the Supreme Court directly, because he is temporarily not a Governor. That's what the Supreme Court said in 2006.

For example, a Governor is impeached rightly or wrongly like in the case of Peter Obi, he had to approach the Anambra State High Court in Awka then it went up there, same thing Fubara can do but trust me these people will frustrate the case past the 6 months as expected.

Agbegbaorogboye:
Good
I'm happy you can see the difference between 1 and 2
In the case of suspension rightly or wrongly, they do still exist.
In the case of impeachment or recall, rightly or wrongly, they no longer exist

In the case of sole Administrator, it never existed and will never exist because it is not known to law that enables the holding and exercising of political power aka constitution

fergie001:
I have read that 2006 judgement, Fubara does not have the locus because by law, he isn't signing the cheque in Rivers.

However, any Governor can proceed to the Supreme Court to test its constitutionality and join both Fubara & the new administrator as parties to the suit.

I made same observation here earlier...
https://www.nairaland.com/8373114/rivers-national-assembly-duly-consulted/2#134605407

fergie001:
Who can you challenge in the exercise of the functions of that SoE?
The President.

Whilst I see what you mean and very well agree, you must have the locus to challenge same. Fubara doesn't. So before the Court will go into the merits, it is someone who does have the locus standi that can do so.

So Fubara can challenge same but at the Federal High Court. Only the Govs (PDP) can go directly to the Supreme Court, if they mean what they said.

seunmsg:
A governor cannot go to the Supreme Court over a matter that doesn’t concern his state. It will still suffer the same fate as a case filed by Fubara directly to the Supreme Court. For example, what’s the interest that Bayelsa state wants to protect over the declaration of emergency rule in Rivers? How does it affect Bayelsa state?