For The Record
High Court Judgement On Soku Oil Wells
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
ON MONDAY THE 16TH DAY OF DECEMBER, 2019
BEFORE HIS LORDSHIP, THE HON. JUSTICE I. E. EKWO
ON SUIT NO: FHC/ABJ/CS/984/2019
BETWEEN:
THE ATTORNEY GENERAL OF RIVERS STATE …… PLAINTIF
AND
NATIONAL BOUNDARY COMMISSION ……….. DEFENDANT
JUDGEMENT
The originating process in this case was issued on the application of the Plaintiff dated 15th August, 2019 for the determination of a sole question to wit:
Whether having regard to the provisions of section 3(a) of the National Boundary Commission Act, Cap N10, Laws of the Federation of Nigeria 2004 and the undertaking contained in the Defendant’s letter dated 3/7/2002, the failure of the Defendant to rectify the erroneous interstate boundary between Rivers State and Bayelsa State as contained in the extant 11th Edition or the Nigerian Administrative Map constitutes a breach of’ the Defendant’s statutory duty and a flagrant disobedience of the Order of the Supreme Court contained in its judgment delivered on 10/7/2012 in Suit No. SC.l 06/2009: Attorney General of Rivers State vs Attorney General or Bayelsa State and which has occasioned continuous denial of the Plaintiff or its constitutional right to be paid the 13% derivation funds, accruing from the Soku Oil Fields/Wells located within Rivers State.
The Plaintiff seeks the following reliefs upon the determination of the sole question:
(a) A declaration that the continued failure and/or refusal of the Defendant to rectify its admitted mistake in the 11th Edition of the Administrative Map of Nigeria since 2002. which erroneously showed San Bartholomew River instead of River Santa Barbara as the interstate, boundary between the Plaintiff State and Bayelsa State constitutes a breach of its statutory duty and ·a flagrant disobedience of the Order of the Supreme Court contained in its judgment delivered on 10/7/2012 in Suit No. SC. 106/2009.
(b) A declaration that the continued reliance on the said defective 11th Edition of the Administrative Map of Nigeria by other Government Agencies/Statutory bodies especially the Revenue Mobilisation, Allocation and Fiscal Commission and the Accountant General of the Federation in computation of the revenue accruable to the Plaintiff from the Federation Account has resulted in the continued unjust/unfair denial of allocation of derivation funds/money accruing from the Soku Oil Fields/Wells situate within the Rivers State to the detriment of the Plaintiff.
(c) An Order of mandamus or mandatory injunction compelling the Defendant to rectify forthwith in the 12th Edition of the Administrative Map of Nigeria the erroneous interstate boundary between’ Rivers State and Bayelsa State as contained in the extant 11th Edition of the Administrative Map of Nigeria.
(d) An Order, pending the formality of compliance with the order of mandamus or mandatory injunction in (c) above, deeming the administrative boundary between Rivers and Bayelsa States to be River Santa Barbara in accordance with the admission of the Defendant as per its letter of 3/7/2002 and the definitive Orders of the Supreme Court entered and made on 10/7/2012.
(e) An Order, upon the grant of the above reliefs, directing that notice of the decision of this Honourable Court be served on the Revenue Mobilisation, Allocation and Fiscal Commission and the Accountant General of the Federation.
The facts of the Plaintiff’s case are to be gleaned from their is-paragraphed affidavit deposed to on 22nd August, 2019. I consider the salient averments thereof to be found in paragraph 4-17. Therein it is averred that in 1996, Bayelsa State was created out of the old Rivers State. The geographical entity known as Rivers State
Included Soku Oil Fields/Wells from which derivation fund were paid to Rivers State. Upon creation of Bayelsa State, the administrative structure or unit hitherto known as Brass Division was excised from old Rivers State and constituted into Bayelsa State; while Degema and the remaining Divisions became present Rivers State with both States having their boundary as River Santa Barbara. This was the position from time immemorial and was so reflected in several Administrative Maps of Nigeria including the 10th Edition. Sometime in 2002 when the Plaintiff noticed that the 11th “ Edition of the Administrative Map of Nigeria changed the natural boundary between it and Bayelsa State from River Santa Barbara to San Bartholomew River, the Plaintiff protested the change to the Defendant and the Surveyor-General of the” Federation (Exhs. A, B and C). In response to the protest letters, the Defendant in its letter dated 3rd July, 2002 admitted its mistake in the 11th Edition of the Administrative Map of Nigeria which placed the boundary between Rivers and Bayelsa States at San Bartholomew River and undertook to correct same in its 12th Edition of the Administrative Map of Nigeria (Exh. D). When the Defendant failed to redress the mistake in spite of its undertaking to’ correct same, and, in spite of repeated demands by the Plaintiff to do so, the Plaintiff in 2009 instituted an action at the Supreme Court in its original jurisdiction in Suit No. SC.106/2009 – Attorney General of Rivers State v. Attorney General of 8ayelsa State and Attorney General of the Federation, On 10th July, 2012 the Supreme Court of Nigeria in a unanimous held that based on the admission of the mistake made by the Defendant and its undertaking to rectify the error of the interstate boundary between Rivers State and Bayelsa State in its 12th Edition of the Administrative Map of Nigeria, the Plaintiff’s suit was accordingly struck out but the Court made an order against the Defendant to wit:
”From the tone of this letter, the fixing of St. Bartholomew River as the boundary between the plaintiff and the 1st defendant is an error acknowledged by the National Boundary Commission which it has undertaken to correct. Consequently, it is the order of this court that. the 2nd Defendant; the National Boundary Commission produces the 12th Edition of the Administrative Map of Nigeria expeditiously correcting all the alleged error in the 11th Edition.”
It is then averred that the Order of the Supreme Court contained in the said judgement was delivered by Adekeye, JSC (as he then was) and is reported in Attorney General of Rivers State v. Attorney General of Bayelsa State & Anor. (2013) 3 NWLR (Pt. 1340) 123 at 167 paras D-E (Exh. E), and, the letter referred to by the Supreme Court In the judgement is to be found in Exh. D. Notwithstanding the Defendant’s undertaking to rectify the error and the Order of the Supreme Court that it should do so expeditiously, the Defendant till date has failed and/or refused to amend the interstate boundary between the two States contained in its 11th Edition of the Administrative Map of Nigeria. The Defendant has recently been bandying a preliminary Administrative Map purportedly as the 12th Edition of the Administrative Map of Nigeria (Exh. F) which did not correct the anomaly complained of in the 11th Edition of the Administrative Map of Nigeria. When the Plaintiff became aware of Exh. F, the Plaintiff wrote a letter dated 19th July, 2019 (Exh. G) to the 1st Defendant complaining of the defects contained therein and demanded a withdrawal of the said document from circulation and also demanded compliance with its undertaking and Order of the Supreme Court within 21 days which period has since elapsed without compliance by the 1st Defendant. Unless compelled by this Court the Defendant will not produce an authentic 12th Edition of the Administrative Map of Nigeria in compliance with its undertaking and the Order of the Supreme Court. Consequent upon the failure of the Defendant to correct the said anomaly, other Governmental Agencies/Departments/Statutory bodies have continued to rely upon the 11th Edition of the Administrative Map of Nigeria to unjustly/unfairly deny the Plaintiff State of its entitlement to be paid the derivative funds/money accruing from the Soku Oil Fields/Wells which said Oil Fields/Wells are situated within Rivers State. Unless this Court makes a deeming Order that the boundary between Rivers and Bayelsa States is the River Santa Barbara in accordance with the admission of the Defendant as per its letter of 3rd July, 2002 and the Orders of the Supreme. Court thereto, pending the formality of compliance with the mandatory rectification Order sought in this Summons, other Governmental Agencies including, but not limited to the Revenue Mobilisation, Allocation and Fiscal Commission and the Accountant General of the Federation, will continue to deny the Plaintiff the derivative funds/money accruing from the Soku Oil/Fields/Wells.
In reaction, the Defendant filed a 14-paragrahed counter-affidavit deposed to on 12th November, 2019. I find the salient averments thereof in paragraphs 4-13. It is averred therein that there has been a lingering boundary dispute between the plaintiffs’ State and Bayelsa State in which the Plaintiff’s State claims River Santa Barbara as the boundary while Bayelsa State claims San Bartholomew River as the boundary. The Defendant has initiated several actions towards the resolution of the boundary dispute between the Plaintiffs State and Bayelsa State, and while the process of resolving the dispute was going on, the 11th Edition of the Administrative Map of Nigeria was produced in error because action on the boundary has not been concluded (Exh. A). The Defendant does not know exactly where the boundary between the Plaintiff’s State and Bayelsa State is unless and until action is conclusive. A Joint Meeting of Officials convened on Wednesday 30th November, 2011 to receive and discuss the Joint Technical Report of November, 2007 and also chart a new road map towards fast-tracking the boundary dispute resolution process could not proceed due to a pending Court case at the instance of Plaintiff’s State (Exh. B). Action on the boundary definition and delineation between the Plaintiff’s State and Bayelsa State could not continue due largely to the fact- that the Plaintiff’s State withdrew from further deliberation during a Joint Meeting of Officials held on Wednesday 30th January, 2013 (Exh. C). The conclusion of the boundary dispute resolution can only be possible where all the stakeholders participate in the process. The Plaintiff’s State refused to participate in the Joint Meeting of Officials recently convened on 24th – 26th September, 2019 aimed at resolving the boundary dispute. Even when it acknowledged receipt of letter of invitation from the Defendant, it took no step to reply to the letter showing why it could not participate in the meeting, and, the Joint Officials Meeting could not take place (Exh. D). The 12th Edition of the Administrative Map of Nigeria mentioned in paragraph 13 of the Plaintiffs Affidavit is Provisional Administrative Map and cannot be relied upon by any authority or person in view of the fact that action on the disputed boundary has not been concluded. The Defendant has a procedure of defining and delineating boundary which must be exhausted before taking a decision on any boundary line including that of the Plaintiffs State and Bayelsa State, and the request by the Plaintiff to compel the Defendant to produce an authentic 12th Edition of the Administrative Map of Nigeria is premature. The Defendant is not aware and does not know any agency of the government/statutory bodies that rely upon the 11th Edition of the Administrative Map of Nigeria neither does the Defendant know where the Soku Oil Field/Well or any other Oil Wells/Fields are located. The Defendant cannot unilaterally define and delineate any boundary as between states, communities’ and local government areas in Nigeria, the Plaintiff’s State and Bayelsa State boundary inclusive, and to conclude work on the ‘disputed boundary- between the’ Plaintiff’s State and Bayelsa state, stakeholders must resume resolution process.
The written .address of the Plaintiff is predicated on the sole question formulated for determination. It is asserted ther.ein that it is trite law that in the interpretation of statutes, (including the Constitution) where the words are clear and unambiguous, the law compels the Courts to accord them their plain and ordinary meanings; reliance is placed on Barbedos Ventures Ltd. II. first Bank of Nigeria PIc. (2018) 4 NWLR CPt. 1609) 241 at 286. It is then submitted that the relevant statutory provisions contained in S.3(a) of the National Boundary Commission Cap. N10, LFN 2004 ought to be given their plain and ordinary meanings. By S. 3 of the Boundary Commission Act, it is the duty of the Defendant to determine and intervene in the boundary dispute between Rivers State and Bayelsa State and the proper placement of the Soku Oil Fields/Wells in the Administrative Map of Nigeria; reliance is placed on Attorney General or Rivers State v. Attorney General or Bayelsa State (supra). Therefore when the Plaintiff protested the wrong placement of the boundary between Rivers State and Bayelsa State by the’ pt Defendant at the River San Bartholomew instead of River Santa Barbara as contained in the 11th Edition of the Administrative Map of Nigeria, that is, Exhs. AI Band C. The Defendant admitted the error and undertook to correct the error in its 12th Edition of the Administrative Map of Nigeria (Exh. D). The Defendant having failed to do so, the Plaintiff sued in Attorney General orRivers State v. Attorney General or Bayelsa State (supra) wherein the 1st Defendant maintained that it made an error in the 1i th Edition of the Administrative Map of Nigeria and its undertaking to rectify same in the 12th Edition. The Court said the excuses given by the Defendant why it had not effected the correction and reflect same in the 12th Edition of the Administrative Map, were “lame excuses”; reliance is placed on Attorney General or Rivers State v. Attorney General of Bayelsa State (supra) at p. 154 paras C-E. At pp. 166 to 167 paras E-E of the judgement in the Law Report. The Defendant was ordered to produce the 12th Edition of the Administrative Map of Nigeria expeditiously correcting all the alleged errors in the 11th Edition. It is now more than 17 years when the Defendant in Exh. D. to the supporting affidavit undertook to correct the boundary error in the 12th Edition of the Administrative Map of Nigeria and more than 7 years since the Supreme Court ordered the Defendant to produce the 12th Edition of the Administrative Map of Nigeria and correct the error in the 11th Edition “expeditiously”. The Defendant is yet to produce the 12th Edition of the Administrative Map of Nigeria and effect the correction it admitted it made in the 11th Edition of the Map concerning the proper interstate boundary between the Plaintiff State and Bayelsa State. The failure of the Defendant to produce the 12th Edition of the Administrative Map of Nigeria constitutes a breach of its statutory duty and also constitutes a fragrant disobedience of the Order of the Supreme Court and it is trite law that orders of Court are meant to be obeyed, and must be obeyed; reliance is placed on Chemiron International Ltd. v. Stabilini Visinoni Ltd. (2018) 17 NWLR (Pt. 1647) 62 at 83, Ezim II. Menakaya (2018) 9 NWLR (Pt. 1623) 113 at 136, and, APC v. Karfi (2018) 6 NWLR (Pt. 1616) 479 at 519.
The failure of the Defendant to so comply has continued to rob the Plaintiff State of its entitlement to be paid the derivative funds/money accruing from the Soku Oil Fields/Wells which are situated within the Rivers State. The Plaintiff State is being denied this entitlement because other government agencies/ departments/statutory bodies such as the Revenue Mobilization, Allocation and Fiscal Commission, and the Accountant General of the Federation are still relying on the defective 11th Edition of the Administrative Map of Nigeria in determining the derivative revenue accruable to the Plaintiff State. Therefore, it will be in the interest of justice to make a deeming Order that the boundary between Rivers State and Bayelsa State is the River Santa Barbara in accordance with the Defendant’s ‘admission in its letter of 3rd July, 2002 and the Order of the Supreme Court pending when the Defendant will comply with the production of the 12th Edition of the Map in line with S. 287(1) of the 1999 Constitution. This Court is constitutionally vested with the power to enforce the Order of the Supreme Court contained in its judgement delivered on 10th July, 2012. By the provisions of S.14(1) & 2 of the Federal High Court Act, Cap F12 LFN 2004 (hereinafter the FHCA), this Court has the powers to make an Order of mandamus or mandatory injunction requiring any act to be done and such power may be exercised notwithstanding that the Order is made against an officer or authority of the Federation as such; reliance is placed on Ohakim v, Agbaso (2010) 19 NWLR (Pt. 1226) 172 at 228, and, Associated Discount House Ltd. v. The Hon. Minister of the Federal Capital Territory(2013) 8 NWLR (Pt. 1357) 493 at 509. It is posited that in the context of the facts of this case, all the Plaintiff seeks in this case is an Order compelling the Defendant, who has shown no respect for the Court of law and who has shown clearly the “shirking of its statutory responsibilities” to perform its statutory duty as claimed in this action. In conclusion, this Court is urged to answer the sole question for determination in the affirmative and grant the reliefs sought.
In the written address of the Defendant, a sole question is formulated for determination to wit:
Whether this action is competent in view of the fact that it centers on and seeks order of Mandamus or Mandatory injunction against the Defendant?
It is their argument that by Order 34 Rule 3 (1) and (2) of the FHCCPR 2019 an application for an order of mandamus, prohibition or certiorari; or an injunction restraining a person from acting in any office in which he is not entitled to act, shall be made by an application for judicial review in accordance with the provision of this Order. The application for judicial review shall not be made unless the leave of the Court has been ‘obtained, and, the application for leave shall be made ex parte to the Judge and shall be supported by a statement setting out the name and description of the applicant, the relief sought and the ground on which it is sought, an affidavit verifying the fact relied on, and, a written address in support of the application for leave. Non-compliance with the provisions of Order 34 of the FHCCPR 2019 by the Plaintiff renders this action incompetent, and as such has divested this Court the jurisdiction to entertain this suit; reliance is placed on Dr. Gabriel Olusoga Onagoruwa & Anor. v. IGP & 5 Drs. (1’991) 5 NWLR (Pt.193) 593 at 639, and, Madukolu v. Nkemdilim (1962) 2 SCNLR 341. It is submitted that Court Rules when made are applicable and binding on all authorities and persons they relate to, they are not mere flowers to decorate the statute book. It must be obeyed and the repeated use of the word “shall” throughout the provision of Order 34 is an affirmation that compliance with the provisions of the Rules of the Order is mandatory and not optional. Accordingly, this Court is urged to resolve this question in favour of the Defendant and strike out this suit.
I have noted the argument of the Plaintiff in their Reply on Point of Law wherein it is stated that the claim of the Plaintiff relating to mandatory injunction or order of mandamus is made under a purely private law setting or ordinary claim and not under the procedure of judicial review under Order 34 of the FHCCPR 2019; reliance is placed on Ohakim v. Agbaso (supra). It is also submitted that under S. 14(1) and (2) of the FHCA this Court is vested with power to make order mandamus requiring any act to . be done. The exercise of this power is not restricted only to claims brought by way of judicial review procedure. This Court is urged to discountenance the argument of the Defendant.
I have to say that the response of the Defendant to the case of the Plaintiff in their written address is quite a procedural novelty in my opinion. It is a very rare form of defence and perhaps procedurally· extraordinary if I may say. This is because the averments in the counter-affidavit appears to constitute what I may consider as the defence of the Defendant. The written address attached to the counter-affidavit elucidates nothing concerning the averments in the counter affidavit but addresses what is apparently an objection to the competence of the suit of the Plaintiff. This is done by formulating a sole issue to be determined by the Court on whether this action is competent in view of the fact that it centers on and seeks order of mandamus or mandatory injunction against the Defendant? Their argument thereon is that by Order 34 Rule 3 (1) and (2) of the FHCCPR 2019 an application for an order of mandamus, prohibition or certiorari or an injunction restraining a person from acting in any office in which he is not entitled to act, shall be made by an application for judicial review in accordance with the provision. It is contended therein that the application for judicial review shall not be made unless the leave of the Court has been obtained, and, the application for leave shall be made ex parte to the Judge and shall be supported by a statement setting out the name and description of the applicant, the relief sought and the ground on which it is sought, an affidavit verifying the fact relied on, and, a written address in support of the application for leave. It is their conclusion. that non-compliance with the. provision of Order 34 of the FHCCPR 2019 by the Plaintiff renders this action incompetent, and as such has divested this Court the jurisdiction to entertain this suit.
By and large the written address of the Defendant constitute a preliminary objection on the competence of the case of the Plaintiff. Now, where a competence of a suit is being challenged, it is Order 16 of the FHCCPR 2019 that applies. It is stated therein thus:
Order 16 (1) – There shall be no demurrer allowed.
(2) (1) – A party shall be entitled to raise by his pleading any point of Jaw, and any point of law so raised shall be disposed of by the Judge who tries the cause at or after the trial.
(2) A point of law ‘so raised may, by consent of the Parties, or by order of the Court or a Judge in Chambers on the application of either party, be set down for hearing and disposed of at any time before trial.
Cont’d on p. 28
For The Record
BROADCAST BY HIS EXCELLENCY, SIR SIMINALAVI FUBARA, GSSRS ON TUESDAY, 18TH JUNE, 2024
For The Record
An Open Letter To President Bola Ahmed Tinubu On The Imperative Of Revisiting The Eight-Point Resolution Brokered As Truce For The Rivers Political Crisis
Your Excellency, as belated as it may come, please, do accept my congratulations on your victory in the last Presidential election, and the seamless swearing-in ceremony that ushered you in as the sixth democratically elected President and Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria.
Of course, your victory did not come as a surprise to many, given your antecedents as a democrat, astute administrator and, a go-getter. Whereas your track record as a political activist, especially in the wake of the annulled June 12, 1993 presidential election is self-evident; your exceptional performance as Governor of Lagos State is a clincher any day.
It is my prayer therefore, that the good Lord, who has brought you this far, guide and direct your ways to steer the ship of state aright.
That being said, Your Excellency, please permit me to commence this correspondence with an allegory drawn from our recent past. A few years ago, Chief Olusegun Obasanjo was elected Nigeria’s President on the platform of the Peoples Democratic Party (PDP). You were equally elected Governor of Lagos State on the platform of the Alliance for Democracy (AD). This electoral upshot inevitably placed you in opposition to the government at the centre.
The dust raised in the wake of the elections was yet to settle before you disagreed with then President Obasanjo. The bone of contention transcended personal vendetta, or so it seemed. Again, it happened at a time when our democracy could rightly be described as nascent. You had approached the court to seek judicial interpretation on some grey areas of our constitution, as provided for, in the concurrent list.
Much as Obasanjo would have loved to have things go his own his way, he was apparently restrained by the grundnorm. And he recognized it was within your right to seek judicial interpretation as to whether he wasn’t exercising his powers as president ultra vires. That was the rule of law at play; a classic specimen of what we fondly refer to as the beauty of democracy in our political parlance.Above all, it underscored the centrality of the constitution in resolving state matter.
Nigerians gave you thumbs up for engaging Obasanjo and the federal government all the way up to the Supreme Court. Moreover, happening at a time when the fear of President Obasanjo and the unwritten federal might were considered the beginning of political wisdom in our polity. Of course, the constitution came handy as a leveler between your good self and former President Obasanjo.
In light of the above, Nigerians naturally expect a clear departure from what the Obasanjo era and the immediate past regime offered them as constitutional democracy. Whereas it is still early in the day to rate your performance in this regard, one cannot but acknowledge that you have so far shown that you have some listening ear. Your intervention in what could have degenerated into a total breakdown of law and order in Rivers State late last year comes as a reference point. For me, stepping in to halt the ship of state from completederailment is an eloquent attestation to the fact that you place the security of lives and property, peace and harmony, and national cohesion over and above partisan interest.
You could equally have looked the other way and allow the crisis fester, since Rivers State is a PDP state. But you hearkened to the voice of reason, and that of well-meaning Nigerians, particularly, Chief Edwin Kiagbodo Clark, the leader of the Ijaw nation, and, the Ijaw National Congress (INC) to halt the drift. Notwithstanding your tight schedule, you took out time to summon the governor of Rivers State, Sir Siminalayi Joseph Fubara, his predecessor, now FCT minister, Barr. Ezebunwo Nyesom Wike and Hon. Martins Amaewhule who were the principal actors in the crisis to the Villa, and have them subscribed to a peace deal.
Although I had my reservations over the eight-point resolution ab initio, I refrained myself from joining the bandwagon in pointing out some of the obvious limitations in the document at the time. My position was informed by the following reasons. First, I didn’t see it as the wisest thing to do at a time when the crisis was raging like a wildfire. For me, nothing could have been more paramount than bringing the situation under control, which the armistice effectively accomplished. Second, I trusted your judgment, and honestly believed that you brokered the deal in good faith. I was therefore willing to give the truce the deserved benefit of the doubt by putting it to test. Finally, and most importantly, the governor who was in the eye of the storm was unwavering in restating his commitment to the terms of the truce.
However, three months after the deal was struck, I dare say, Your Excellency; that it has failed in attaining the ultimate goal of reconciling the warring factions.Instead, it had become the template for the palpable tension the state has since been grappling with. This outcome is by no means surprising to any discerning mind. And the reasons are not far-fetched. First, as I mentioned earlier, it would appear that in a bid to halt to the looming anarchy, the constitution which is the grundnorm was not properly consulted in forging the eight-point resolution. Also, a reexamination of the document reveals a certain degree of political fiat in its construct.
That the eight-point resolution has since triggered a plethora of litigations is only natural. That it has induced a near state of anomie clearly points to the inherent flaws in the document. That it has thrown up desperadoesand warmongers like Chief Tony Okocha and Engr. Samuel Nwanosike who now disparage, distract and outrightly abuse a sitting governor with reckless abandon is equally expected. As for Wike, the man believes the governor is his lackey, therefore, tongue-lashing, and outrightly threatening to give the governor sleepless nights are privileges he believes are within his right. But most worrisome, is the fact that Wike doesn’t make empty threats. In other words, backtracking on getting the governor out of office, either by hook or crook isn’t just an option.
The truth is, some of the articles in the eight-point resolution stealthily stripped the governor of the powers and aura of his office;thus exposing him to the ridicule we see today. For instance, article three directed the governor to reinstate former members of the state executive council,who had earlier resigned their appointments from the state cabinet. Truth be told, such directive to a sitting governor, in the very least, leaves a sour taste in the mouth. Perhaps, it would have been a different kettle of fish had the governor whimsically sacked the commissioners because he suspected their allegiance lay with the FCT minister. But here, these supposed honourable men and women resigned their appointments on their own volition, citing “personal grounds”.
One would have expected Your Excellency toresolve the issue a little differently given your groundedness in public and private administration; knowing that trust and mutual respect took flight the moment those commissioners handed in their resignation letters. In other words, people with obvious reservations against each other cannot truly work as a team.
The constitution expressly confers the powers to appoint commissioners on the governor of a state. It follows therefore that commissioners owe their loyalty to the governor who appoints them. While in the saddle, Wike was unequivocal in demanding a hundred percent loyalty from his commissioners. And that was what he got during his eight-year reign. Granted that the commissioners in question were all nominated by the FCT minister as we now know; the question is, was it also within his right to direct their resignation at will, and then re-direct their reinstatement because the plot to remove the governor failed?
If you ask me, requesting Wike, the nominator, to nominate fresh persons in their stead would have created more semblance of statecraft, seriousness in governance and, more importantly, saved the governor’s face. It also would have gone a long way to demonstrate that some things are beyond trifles. Put differently, the notion that a crisis of that magnitude could be resolved absent collateral damage rest on a faulty premise.
Again, article six of the eight-point resolution apparently puts the governor in a catch 22 situation. Directing the governor to re-present the state Appropriation Bill that has already been passed and signed into law to Hon. Martins Amaewhule and his co-travelers, in my humble opinion, was another sore point in the document. I doubt it was a fitting consideration for a failed impeachment that shouldn’t have happened in the first place; not after the courts have already made pronouncements on the issues.
Your Excellency, I honestly believe you didn’t intend the current stalemate between the executive and the legislative arms of government in Rivers State. Nevertheless, that is the reality on ground, as the governor, on one hand, governs the state with an infiltrated state civil service; and Martins Amaehule with his ‘Assembly’ members, working at cross-purposes with the governor, dish out all the anti-executive bills they can imagine. A case in point is the latest piece of legislation coming from the ‘Assembly’. Again, one wonders,what Assembly worth its salt, wouldseekto elongate the tenure of the current local government chairmen and councilors; knowing they were elected and sworn into office for a three-year term that expires in June? The question is, do we now enact our laws retroactively?
Now, to the crux of the matter, Wike is a man with a history of political violence. His politics thrives in an atmosphere of strife and rancour. It cannot be over emphasized that he presently seeks to overheat the Rivers polity, and possibly make the state ungovernable. He is hell bent on accomplishing the intendment of a failed impeachment. His penchant for violence explains why Rivers State under his reign wore the appalling badge of a conquered territory. The state hasn’t exploded yet, given its current tenuous peace of the graveyard,is because, Gov. Siminalaye Fubara has refused to swallow Wike’s bait. In fact, his refusal to join issues with the man he calls master, and probably heat up the polity explains why restive Wike wants 2027 switch place with 2024 in the Nigeria political calendar.
Already, his vicious supporters are on the prowl, momentarily rehearsing vandalism and arson of public and private properties, with no qualms, even in broad day light. Sadly, the license to take laws into their hands springs from standing on Wike’s mandate. This much is evident in a video that has gone viral on the cyberspace. One would have dismissedthe ongoing rampageas the man’s political trademark, except that wily Wike claims to be standing on your mandate, even though he has been most cautious in defecting to his supposedly ‘cancerous’ APC.
Your Excellency, is it not curious that Wike and his supporters are the only band daily chanting “On your mandate we shall stand, Jagaban”, one year after you had contested and won the February 25, 2023 presidential election?
Of utmost concern is the disturbing silence of the Police, the DSS and other security agencies in the face of Wike’s supporters running amok. Rather, than live up to their constitutional billing, they seem to unwittingly nudge the people to resort to self-help. And while they continue in their ostrichism, the fire is being steadily stoked by the man who thinks Rivers State is his sole enterprise, and to balm his bruised ego could unleash the unimaginable.
It is however reassuring that Your Excellency is no stranger to Rivers politics and its combustive nature. As Dr. Peter Odili’s contemporary as governors, you were well abreast of what transpired in the state from 1999-2007. You were also a major player in the Amaechi-Wike debacle while the former was the occupant of Brick House. In fact, you were purported to have saved Amaechi’s skin from the Jonathans, when, in cahoots with Wike, they unleashed the federal might.
You saw Rivers State went upin flame from 2013-2019, all for Wike to succeed his Ikwerre brother as governor in a multi-ethnic state. You were also witnessto how thepolitically induced inferno incredibly extinguished itself as soon as Wike’s vaulting ambition was achieved. But while the carnage last, Rivers people lost their lives in their hundreds.
As governor, and for eight years, Wike ruled like a demigod, and the state, his footstool. He literally vetoed the constitution on Citizens’ Rights, Freedom of Speech, Freedom of Association, Procurement, and Social Justice. In fact, one of the lion-hearted among us aptly tagged the Wike-era as the years of the Rivers of Blood.
Your Excellency, there is no better way to say Rivers State is presently sitting on a keg of gunpowder, while drifting daily towards the precipice. And if something is not done urgently to avert a repetition of its recent ugly past, tomorrow may be too late.
I have personally bemoaned the lot of the Rivers man since the dawn of the fourth republic in my book: The Rivers Season of Insanity. I would spare you the details therein. However, it may interest Your Excellency to know that as a Rivers man; I have tremendous respect for you, just as I envy what you have made of Lagos State. I’m therefore genuinely bothered that Rivers State may just be the odd state out as you are set to replicate the Lagos wonder across the federation. Rivers State can only andtruly share in the Renewed Hope, if Wike is restrained from plunging it into another round of bloodletting.
Much as it is the truth, I hate to reiterate, that in all her abundance, Rivers State can only boast of the loudest and most vaulting chief executives ever, since 1999. The allure to graduate from Brick House to Aso Villa has become an elixir, which those we elect to govern have not been able to extricate themselves from. And to make a bad situation worse, it remains the only state in Nigeria that flaunts an obnoxious injunction that insulates her past and serving governors from the ethics of good governance, such as transparency, accountability and probity.
I have no doubt in my mind that you already saw through Wike and his antics. And it is only a matter of time before you reined him in. My concern however, is that it shouldn’t happen only after he must have thrust the state into another round of massacre. Need I say, that going by his claim, what Wike delivered in last year’s election were Rivers votes, not his votes.
Ask the Jonathans if their alliance with Wike was worth the trouble, given the benefit of hindsight, and your guess will be as good as mine.
In a nutshell,Your Excellency, Rivers State has had more than her fair share of bloodletting since 1999. It is against this backdrop that I most fervently pray that the blood of Dr. Marshall Harry, Chief A. K Dikkibo, Hon. Monday Ndor, Hon. Charles Nsiegbe, Amb. Ignatius Ajuru, Hon. Monday Eleanya, Barr. Ken Aswuete and several other victims of assassination be allowed to water the peace initiative and advocacy of the incumbent governor.
Finally, Your Excellency, in view of the above, it is my humble submission that the eight-point resolution be revisited with the hope that it guarantees sustainable peace and harmony in the Rivers polity.
“The time is always right to do what is right.”
-Martin Luther King Jr.
Thank you for time and consideration.
Yours Respectfully,
Caleb Emmanuel Fubara
Fubara hails from Opobo Town
Background
On Thursday, February 15, 2024 at its 109th Legislative sitting, the House passed into Law, the Rivers State House of Assembly Service Commission (Amendment) Bill, 2024. The Bill repealed the Rivers State House of Assembly Service Commission (Amendment) Law, No. 3 of 2006 and further amended the Rivers State House of Assembly Service Commission Law of 1999. The Bill was sent to the Governor for his assent and after the statutory 30 days, the House re-passed the Bill into Law on 22nd March, 2024.
The Rivers State House of Assembly Service Commission was established by the Rivers State House of Assembly Service Commission Law of 1999. Section 2 provides:
“The Commission shall comprise a Chairman and four other members who shall in the opinion of the Speaker be persons of unquestionable integrity.
“The Chairman and members of the Commission shall be appointed by the Rivers State House of Assembly acting on the advice and recommendation of the House Committee of Selection and shall in making the appointment be guided by the geographical spread and diversity of the people of Rivers State.”
The above section was repealed by the Rivers State House of Assembly Service Commission (Amendment) Law No 3, 2006. In Sections 2 and 3, the Amendment Law provides that:
S. 2 “Section 2 of the Principal Law is amended by repealing subsection (1) and substituting the following subsection:
“(1) The Commission shall comprise a Chairman and 4 (four) other members.
S. 3 “Section 2(2) of the Principal Law is amended by repealing subsection (2) and substituting the following subsection:
“(2) The Chairman and members of the Commission shall be appointed by the Governor subject to the confirmation by the House of Assembly and shall in making the appointment be guided by the geographical spread and diversity of the people of Rivers State.”
The import of the 2024 Amendment Bill passed into Law by the House is that the Governor will no longer have the power to appoint the Chairman and members of the Rivers State House of Assembly Service Commission and the power of appointment shall be vested in the House of Assembly.
Legal Issues
The first issue to consider is the Constitutional power of the Governor. Section 5(2) of the Constitution of the Federal Republic of Nigeria, 1999 provides that the executive powers of the State shall be vested in the Governor of that State.” Further, Section 176(2) provides that: “The Governor of a State shall be the Chief Executive of that State.”
This follows that the Governor is the Chief Executive Officer of the State Government and by the powers vested on him, is responsible for making appointments into various executive bodies, subject to the provisions of the 1999 Constitution and other statutes. All Commissions and other parastatals are executive bodies under the control of the Governor. The House of Assembly Service Commission is an executive body and as such, the Chairman and members can only be appointed by the Governor. The House of Assembly has no powers to make any appointment into an executive body as no statutory body is under the control of the legislature. The Rivers State House of Assembly should not mistake the presence of the building of the Service Commission in its premises as conferring powers on the House to appoint the Chairman and members of the Commission.
The second issue to consider is the Constitutional alteration of 2023. In that alteration, the Third Schedule was amended to include State Houses of Assembly Service Commissions, which invariably follows that a State House of Assembly Commission is one of State bodies established by section 197 of the 1999 Constitution. Let’s be reminded that Section 198 of the 1999 Constitution gives the Governor the power of appointment into various executive bodies, subject to confirmation by a resolution of the House of Assembly of a State. The job of the Rivers State House of Assembly ends with the confirmation of the appointees.
The alteration to the Third Schedule, paragraph 1A provides that the composition, tenure, structure, finance, functions, powers, and other proceedings of the Commission shall be as prescribed by a law of the House of Assembly of the State. Notice that the appointment of the Chairman and members of the Commission is not listed. Therefore, it can be safely inferred that the power to appoint the Chairman and members of the House of Assembly Service Commission lies with the Governor, as is the case with the other bodies listed under Section 197 of the 1999 Constitution.
There is nothing in the Alteration that, by any stretch of imagination, can be inferred to confer the power of appointing the Chairman and members of the Rivers State House of Assembly Service Commission on the Rivers State House of Assembly, notwithstanding the fact that the law creating the Commission was enacted by the Rivers State House of Assembly.
Thirdly, is the Rivers State House of Assembly Service Commission and its staff under the control of the State Government? To answer this question, we will take our voyage to Section 318 of the 1999 Constitution. That section gives the definition of a Public Service of a State to mean: “the service of the state in any capacity in respect of the government of the state and includes service as: clerk or other staff of the House of Assembly; member of staff of the High Court, the Sharia Court of Appeal, the Customary Court of Appeal or other courts established for a state by the Constitution or by a law of a House of Assembly; member or staff of any Commission or authority established for the state by this Constitution or by a law of a House of Assembly; staff of any Local Government Council; staff of any statutory corporation established by a law of a House of Assembly; staff of any educational institution established or financed principally by a government of a State; and staff of any company or enterprise in which the government of a State or its agency holds controlling shares or interest.
The purport of this section is that the Assembly Service Commission is not an appendage of the legislature but under the control of the State Government. Even at the national level, the members of the National Assembly Service Commission are appointed by the President in collaboration with the National Assembly.
Fourthly, what is the position of the Rivers State House of Assembly Service Commission Law vis-à-vis the National Assembly Service Commission Act? Section 4(5) of the 1999 Constitution provides: “If any Law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other law shall, to the extent of inconsistency, be void.”
Further, in A.G Bendel v AG Federation & 22 Ors (1982) 3 NCLRI, the Supreme Court held per Fatayi Williams CJN (as he then was) “neither a State nor an individual can contract out of the provisions of the Constitution. The reason for this is that a contract to do a thing which cannot be done without a violation of the Law is void.”
The fifth issue is: “can a statute revive a repealed statute?” In the case of Idehen v University of Benin, Suit No FHC/B/CS/120/2001, delivered on 19th December, 2001, the court held that:
“Contrary to the contention of the University, the effect of a repealing statute is to erase the repealed statute from the statute book. When a statute is repealed, it ceases to exist and no longer forms part of the laws of the land. In other words, the effect of the repeal is to render the repealed statute dead and non-existent in law. Like a dead person, it cannot be revived.”
The court also held in Onagoruwa v IGP (1991) 75 N.W.L.R (pt. 193) 593 that in law, a non-existent statute is dead and cannot be saved or salvaged by the court.
In Madumere v Onuoha (1999) 8 NWLR (Pt. 615) Pg 422, the Court of Appeal held that:
“the effect of repealing a statute is to obliterate it completely from the records of the Parliament as if it had never been passed. Such a law is to be regarded legally as a law that never existed…This means in effect that when a statute is repealed, it ceases to be an existing law under the Constitution of the Federal Republic of Nigeria.”
For the purpose of reviving your memory, the provision giving the Governor the power to appoint the Chairman and members of the Rivers State House of Assembly Service Commission under the repealed 2006 Law provides in its opening paragraph:
“3. Section 2(2) of the Principal Law is amended by repealing section 2 and substituting the following section…” (emphasis mine).
Further, Section 6(1)(a) of the Interpretation Act provides:
“(1) The repeal of an enactment shall not revive anything not in force or existing at the time when the repeal takes effect.”
Please note that Section 318(4) of the 1999 Constitution provides that “The Interpretation Act shall apply for the purposes of interpreting the provisions of this Constitution.”
It follows from the above that the House cannot repeal Sections 2 and 3 of the Rivers State House of Assembly Service Commission (Amendment) Law No 3, 2006 to revive the already repealed provisions of the 1999 Law.
Conclusion
In conclusion, the Rivers State House of Assembly lacks the powers, legal or otherwise, to remove the power of appointment of the Chairman and members of the Rivers State House of Assembly Service Commission from the Governor and vest that power on themselves. The provision in the Rivers State House of Assembly Service Commission (Amendment) Law, 2024 seeking to vest that power on the House is in clear contravention of the 1999 Constitution, and therefore, a nullity in the eyes of the Law. See the case of MacFoy v UAC (1961) 3 All ER 1169 where the court held that you cannot put something on nothing and expect it to stand.
In that case, Lord Denning stated: “If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of court to set it aside. It is automatically null and void without more ado, though it is sometimes more convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”
Rt Hon Ehie is Chief of Staff, Government House, Port Harcourt.
By: Edison Ehie