Emergency in Rivers: Romancing impunity?

I urge every Nigerian home and abroad to try and live within the confines of the law of the land and the Constitution of the Federal Republic of Nigeria. If we are able to do just that, we will be sure of ensuring that peace and unity reign in the country. If we do that, we would have succeeded in helping the judiciary to do better justice when the need arises. This is because when we live by the law and not just impunity that is the only way forward. The time has come when all acts of lawlessness will no longer be tolerated by the law as it is bigger than every man and not a respecter of anyone in the country. It is no longer fashionable for people to do things contrary to the law of the land and get away with it simply because they know how to buy their ways.”

Hon. Justice Walter Onnoghen, former CJN, July 2017.

INTRODUCTION:

On September 18, 2025, the state of emergency that was imposed on Rivers State by the President came to its deserved end and there was jubilation in Port-Harcourt and other parts of the state upon the exit of the military administrator who governed the state for six months. Governor Siminalayi Fubara, his Deputy and the honourable members of the Rivers State House of Assembly have since resumed the exercise of their constitutional duties and things are moving so rapidly as if nothing ever happened.

THE COURT CASES:

In his statement lifting the state of emergency imposed on Rivers State, the President acknowledged the fact that over 40 cases were filed in various courts, for the interpretation of section 305 of the Constitution in relation to the nature and exercise of the powers conferred on the President thereunder. With the exit of the sole administrator after serving his six months tenure in full, some have opined that these court cases have become academic because the decisions to be reached therein will serve no useful purpose to the parties. In law, a case is said to be academic when the issues to be determined by the court are no longer alive or beneficial.

“A case or an appeal, for the purpose of judicial adjudication by a Court, is said to be academic when and where there is no and cannot be said to be a live issue in it for consideration and determination by the Court which can materially affect the parties thereto. This may be because of the fundamental nature of the reliefs sought or of changed circumstances since the litigation started such that in case of an appeal, just as we have here, the appeal may become academic at the time it is due for hearing. A case or an appeal is academic when the questions or issues raised therein have, due to the special and specific facts from which they arise, become spent such that no genuine right or benefit would inure to or on the successful party.” Per MOHAMMED LAWAL GARBA, JSC (Pp 39 – 40 Paras D – D in PDP & Ors v Jarigbe & Anor (2021) LPELR – 55936- (SC).

In one of the suits, the plaintiffs are seeking the following reliefs from the Court:

“A DECLARATION that there is no provision in the Constitution of the Federal Republic of Nigeria, 1999 (as amended) that empowers the 1st Defendant to suspend the democratically elected Governor, Deputy Governor, and Members of the House of Assembly of Rivers State while exercising his powers to proclaim a State of Emergency in Rivers State pursuant to section 305 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

A DECLARATION that by virtue of section 1(2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) the Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of the Constitution.

A DECLARATION that by a purposeful construction and interpretation of the combined provisions of sections 1(2) 180, 176(1)(2), and 305 of the 1999 Constitution of the Federal Republic of Nigeria as (amended) the 1st Defendant cannot lawfully suspend the democratically elected Governor, Deputy Governor, and Members of the House of Assembly of Rivers State while exercising his powers to proclaim a State of Emergency in Rivers State pursuant to section 305 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

A DECLARATION that by virtue of sections 1(1) and (2), and 176(1) and (2) of the Constitution of the Federal Republic of Nigeria 1999, the Plaintiffs, who are indigenes and residents of Rivers State of Nigeria, are entitled to have a democratically elected Governor of Rivers State who shall be the Chief Executive of the State.

ALSO READ: REVEALED: Court document shows bank accounts FG paid Osun LG allocations into

A DECLARATION that the suspension of the democratically elected Governor, Deputy Governor, and Members of the House of Assembly of Rivers State by the 1st Defendant on 18th March 2025 while proclaiming a state of emergency in Rivers State is unlawful, unconstitutional, null and void.

A DECLARATION that the appointment by the 1st Defendant of the 3rd Defendant as the Sole Administrator of Rivers State consequent upon the suspension of the democratically elected Governor, Deputy Governor, and Members of the House of Assembly of Rivers State by the 1st Defendant on 18th March 2025 derogates from the provision of sections 1(2) and 176(1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and therefore is unlawful unconstitutional, null, and void.”

To my mind, these reliefs are clear and unambiguous about the purpose of the suit in seeking judicial pronouncement on the meaning and construction of section 305 of the Constitution in relation to the powers of the President. The President is still in office, section 305 of the Constitution is still alive and hanging on the people of Rivers State and indeed other states in Nigeria and the circumstances that led to the declaration of state of emergency in Rivers State are still potent and even volatile. The declarations sought by the plaintiffs in the above and other cases cannot become academic as the decision of the court on them will be of immense benefit to the parties to the suit and indeed Nigeria at large. In addition, the Rules guiding the practice and procedure of the Courts permit a party to seek declaratory reliefs only and to that extent a suit shall not be defeated merely because it seeks declaratory reliefs without more. In Dantata v. Mohammed [2000] NWLR (Pt. 664) 176 at 197, the Supreme Court per Ayoola, JSC:

“As a declaratory relief is independent and separate cause of action on its own, in that it is the law that the jurisdiction of the court to make a declaration is not confined to cases where a Plaintiff has a complete and subsisting cause of action but may also be employed in all cases where the Plaintiff conceives he has a right. Ord.15 Rule 1 of the Rules permits the joinder in one action of several causes of action unless the court or judge is of the view that that the cause of action cannot be conveniently tried or disposed of together. It was, therefore, an error to have proceeded, as the trial judge had apparently, done as if all the cause of action in the suit must be dependent one on the other, one being the principal and the other being the auxiliary. Learned counsel for the plaintiff was right when he submitted that the claim for declaration is an independent claim. Proceeding on that footing, the correct approach was to consider the declaration sought as if relief (c) had not been part of the claim.”

In essence, when a suit seeks declaratory and other executory reliefs together and the issue arises as to whether the entire suit is academic or not, the approach to be adopted by the Court is to consider each relief separately and independently as if each of them can sustain the suit. Does the President possess the power to suspend the Governor of a State when declaring a state of emergency under section 305 of the Constitution? This is a cause of action that can be determined independently without considering other reliefs. Can anybody be appointed to govern any part of Nigeria as a sole administrator without going through the process of election into that office? Does the Constitution recognize the office of a sole administrator? Can the plaintiffs in this suit and other indigenes of Rivers State be governed in any manner that is not expressly stated in the Constitution? We cannot all throw up our arms in the air and give up, as some have done in declaring the court cases as academic and thus not fit for judicial determination. To my mind, any suit in which a declaration is submitted for determination by the court, especially on the interpretation of the Constitution, there must be a verdict on it. The fact that section 305 (4) permits the Governor himself to request the President to declare a state of emergency in his state is enough signal that the Constitution did not envisage that a declaration of such a state of emergency will lead to the removal of the Governor by the President. The Court must clear all the ambiguities and doubts created under section 305 to guide Nigeria for the future. In many cases including Ode v Balogun (1999) 10 NWLR (Pt. 622) 214 and Bagudu v FRN (2004) NWLR (Pt853) 182, the view of the court is that declaratory reliefs can be granted without other consequential reliefs. The courts having jurisdiction over the many cases filed in respect of the declaration of a state of emergency in Rivers State should proceed to determine the declaratory reliefs sought in those cases. It is dangerous to romance impunity through the bench.