In this report, Ise-Oluwa Ige examines the complex facts that foregrounded the lawsuit by 27 factional lawmakers of Rivers State House of Assembly which challenged the controversial 2024 Rivers State financial budget passed by a four-member faction of the state assembly that culminated in the nullification of the entire budget, first by a Federal high court, Abuja and lately, a three-member panel of the Court of Appeal, Abuja. The report also captures the perspectives of senior lawyers on the implications of the verdicts on the state budget and the options available to wriggle out of the conundrum.
Last week Thursday, the Court of Appeal in Abuja, by a unanimous verdict, upheld the decision of the Federal High Court which voided the Rivers State 2024 Budget passed by five members of the state House of Assembly.
That was after the intermediate appellate court dismissed the appeal filed by the duo of Rivers State Government and its governor, Siminalayi Fubara, on the ground that it lacked merit.
Specifically, the appellate court held that the appellants in the case (Governor Fubara and Rivers Government) withdrew their counter-affidavit at the lower court in the matter and as such could not commence an appeal in a matter they did not challenge at the trial stage.
The court consequently ordered Fubara and his administration to re-submit the budget to the full House led by Speaker Amaewhule as earlier ordered by the trial high court which delivered judgment in the case and awarded damages against Fubara, saying he is expected to apply the rule of law and not the rule of might.
BAR & BENCH WATCH reports that Fubara had presented the budget titled: ‘Budget of Renewed Hope, Consolidation and Continuity’ of N800 billion to four out of the over 30 lawmakers of the state house of assembly in December 2023.
The four-member faction of the state House of Assembly was led by Edison Ehie, loyal to Governor Fubara while Mr Amaewhule led an overwhelming majority faction of 27 members loyal to the Minister of the Federal Capital Territory (FCT) and immediate past Rivers State Governor, Nyesom Wike.
But almost one week now after the Appeal Court’s verdict, there appears to be no end in sight to the protracted crisis rocking the state.
At least, as at today, both parties appear to have stuck to their guns.
For instance, Governor Siminalayi group is insisting that the 27 lawmakers were no longer members of the state House of Assembly, having purportedly defected to the All Progressive Congress (APC) and therefore have no locus to consider any budget as ordered by the court while the state Attorney-General said the Court of Appeal never ruled on the status of the 27 lawmakers to justify the order of the court grantef.
But the 27 lawmakers who are pro-Wike are contending that the only way forward was for the incumbent governor to obey the court order by presenting the budget afresh before them.
Already, Governor Fubara has gone before the Supreme Court with an appeal to set aside the judgments of both the trial high court and the Court of Appeal while stakeholders including senior lawyers have begun to explore the implications of the judgment for the state and continuous implementation of the state budget on the one hand and the options available to parties in the state on the other hand.
Genesis of festering political crisis that foregrounds the lawsuit
By a landslide victory, Siminalayi Fubara, the anointed candidate of Nyesom Wike, won the last gubernatorial election which held in Rivers’ state on March 18, 2023 with 302,614 votes to beat the All Progressives Congress (APC) governorship candidate, Pastor Tonye Cole, who came second with 95,274 votes and others.
Fubara, in the election, won all the 23 local government areas of the state.
Wike who was elated by the emergence of his candidate formally handed over the baton of governance in the state to Fubara on May 29, 2023.
Although Wike was appointed a Federal minister, he nonetheless retained more than a passive interest in the state.
However, the rosy relationship between Wike and Fubara ended sometimes in October, 2023 when crisis arising from ‘who to control what’ in the state started brewing.
It did not take time before the matter degenerated as it created tension and division in the state with plots by majority 27 lawmakers in the state House of Assembly loyal to Wike to remove the governor at all costs.
Following the development, when it came time to present the 2024 budget, Governor Fubara by-passed the 27 pro-Wike lawmakers, led by Mr Amaewhule, and submitted it to five legislators loyal to him, led by Mr Ehie.
In response to the deepening crisis, the pro-Wike lawmakers defected from the Peoples Democratic Party (PDP) to the All Progressives Congress (APC) in order to impeach Fubara.
However, the pro-Fubara faction took advantage of the constitutional gaffe committed by pro-Wike lawmakers to declare their seats vacant, citing the provision of section 109 (1)(g), adding that the provision is self-executory.
That development prompted a lawsuit from the Wike-aligned group.
In their suit, the pro-Wike lawmakers sought to prevent the National Assembly from taking over the functions of the Rivers State House of Assembly amid the political turmoil.
They also requested the court to invalidate all actions taken by the pro-Fubara lawmakers, including the passage of the 2024 budget.
Tinubu intervenes
That was the time President Bola Ahmed Tinubu had to intervene in the crisis bringing about a graveyard peace in the state.
But barely a month after Tinubu’s intervention, the fragile peace in the state suffered a major setback following the purported inability of Governor Fubara to meet what a source described as unfulfillable demands by ex-Governor Wike.
However, before the matter would degenerate further, President Bola Tinubu, on December 18, 2023, again held another peace meeting with Rivers State stakeholders at the Presidential Villa, Abuja, to resolve the political crisis in the state.
At the meeting were Governor Siminalayi Fubara, FCT Minister, Nyesom Wike, a former governor of the state, Peter Odili, Vice President Kashim Shettima, and the Rivers State deputy governor, Ngozi Odu. Others were Nuhu Ribadu, the National Security Adviser; PDP acting chairman in the state, Aaron Chukwuemeka; embattled Speaker of the House of Assembly, Martin Amaewhule; and chairman of the APC in the state.
The meeting agreed on an eight-point peace agreement including that all matters instituted in the courts by the Governor of Rivers State, Sir Fubara, and his team, in respect of the political crisis in Rivers State, shall be withdrawn immediately.
Although some stakeholders in Rivers state advised Fubara not to implement the resolutions, yet he went ahead to withdraw all his processes against the suit maintained against him by the 27 lawmakers regarding the validity of the state budget while the factional Speaker, Edison Ehie also announced his exit from the Rivers State House of Assembly.
But the 27 lawmaker who were party to the Tinubu-brokered resolution maintained their case against the respondents including Fubara.
Giving judgment in the matter early in the year, Justice Omotosho ruled in favour of the pro-Wike lawmakers on the grounds that Fubara withdrew all his defences against allegations made against him and the state.
Specifically, Justice Omotosho, in the January 22, 2024 judgment held that facts not controverted were deemed as admitted.
Dissatisfied, Fubara approached the appellate court to challenge the decision of the trial court as well as the consequential orders including a directive to re-present the 2024 budget before the Amaewhule-led faction of the house of assembly.
He had argued that the trial court erred in law in entering judgment as well as the consequential orders against him.
But after hearing out parties, the appellate court in a unanimous judgment held that Fubara did not have a case before them, since he had earlier withdrawn his defence to the suit.
“The challenges faced by the appellant were self inflicted,” Oyewole who led the three-member Appeal Court panel said, adding: “It is academic for a party to concede an action at the lower court and turn around to challenge it.”
Besides, the appellate court berated the governor for resorting to self-help and in total disregard to orders of court in his presentation of the state’s budget to four members of the assembly, which was not up to the required one-third for the passage of such bills.
Lawyers divided over judgments
The concurrent judgments of both the Federal high court in Abuja and the Abuja division of the Court of Appeal have since divided the legal community into two opposing camps.
While a school of thought believes that the position of the Appeal Court on the validity of the 2024 Rivers State Budget is not only very sound and cannot be reversed even if taken upstairs and should therefore be complied with forthwith, another school of thought not only questions the jurisdiction of a Federal high court to hear, in the first place, matters affecting state house of assembly but also of the view that such judgment cannot stand the test of time for more reasons than one including that the judgment is caught by the law of estoppel.
Specifically, a firebrand activist and member of the inner bar, Mr Kunle Adegoke, SAN, whose view represents the first school of though said that as it stands today, the judgment of the court is that the 2024 Rivers State budget passed by or purportedly passed by the four members of the State House of Assembly who are pro-Fubara is invalid and must be presented afresh before the full House of Assembly of the state led by Amaeweghule.
“The pronouncement of the Court of Appeal is the law as far as that issue is concerned. That is not to say that any other issue that may not have been decided may still be left to be decided by competent court of jurisdiction. But as regards the status of the budget, it is a nullity.
“The only course available now is that parties may take a step to the Supreme Court to decide whether the Court of Appeal is correct in its interpretation of the law or otherwise,” adding that given the facts and the law of the case, the judgment is like the Rock of Gibraltar which may be very difficult for the Supreme Court to upturn.
But another senior lawyer, Chief Mike Ahamba, SAN who declined commenting on the judgment on the sole ground that the matter may have been taken to the Supreme Court said he has strong belief that such a case would collapse if tested upstairs.
“Lets see whether Fubara would appeal and let’s wait for the Supreme Court to decide the matter before I comment.
“But seeking for my little knowledge of the law not about Rivers State, section 109 (1) (g) provides answers to all questions on such matter.
“Secondly, there is something we call estoppel in law. Estoppel is that you do not go contrary to whatever you have agreed you will do. You are estopped.
“Let us see the effect of that agreement on the case. I don’t know if that is going to be the ground upon which they would appeal at the Supreme Court,” he said, referring to President Tinubu brokered-resolution that demanded the parties in the case to withdraw their pending suits.
“Thirdly, does a Federal high court have jurisdiction to hear matters affecting Rivers state house of assembly,” he asked rhetorically.
Implications of the judgment for 2024 Rivers Budget
Also commenting on the implications of the judgment for Rivers State and the continuous implementation of its 2024 budget, Ahamba, SAN said the end of the matter is yet to be seen and that the case would most likely collapse if contested at the highest court.
But Adegoke, SAN said the decision of the Court of Appeal is presently the law on the state budget and must be complied with.
He said the decision which has nullified the budget will definitely affect the acts carried out in pursuance of the implementation of the budget.
“But majority of these acts can no longer be undone. Monies that have been spent maybe for construction of roads or bridges which probably contractors have completed, such contractors which were not involved in the origin of this crisis should not bear the punishment of the failure of people involved in government.
“But for those that are yet to be implemented, definitely, the decision of the Court of Appeal has caught up with such plans, activities and proposals of government.
“On that basis, this decision has put an end to any plan or preparations to carry out certain acts already stipulated in the budget and proposed to be executed in the performance of the business of government,” he added.
Vanguard
