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.