When Chief Justice of Nigeria, Kudirat Kekere-Ekun, showed up reportedly to turn the sod on proposed judicial digs with Nyesom Wike last October, there were unheeded warnings then concerning the prohibitive institutional costs of such dalliance with a notorious political litigant who has a reputation for instrumentalising the courts. Many will look at this recent decision from the Supreme Court and say “we told you so.” For the CJN, it will be argued that she was not on the panel; to which the response will be, she chose the judges and constituted the panel.
The political control of the resources of the territory known as Rivers State in Nigeria’s Niger Delta has been a site of curious jurisprudence since the Acting Consul of the Oil Rivers Protectorate, Harry Johnston, procured the judicial liquidation of King Jaja of Opobo in December 1887 in Accra, present capital of Ghana. The charge against King Jaja was the violation of a treaty obligation to assist the British “in the execution of such duties as may be assigned.” At the end of proceedings, which lasted less than one day, before a forum described by Elvar Ingimundarsson as a “Kangaroo court”, King Jaja was convicted and sentenced to exile. The court also prohibited the people of Opobo from designating a replacement for him.
At the end of February, Nigeria’s Supreme Court continued a tradition of afflicting the people of the territory of Rivers State with curious jurisprudence. Separated by 137 years, the decision of the Supreme Court in the latest of the legal disputes from the political rift between incumbent governor, Siminalayi Fubara, and his predecessor, Nyesom Wike, reprises essential parallels with the trial and exile of King Jaja with haunting similarity.
Now, as then, the underlying dispute is really about “a treaty”; in this case allegedly between the governor and his predecessor, the terms of which also appear to be about “the execution of such duties as may be assigned….” The court orders are against a ruling figure (Governor Fubara) from Opobo and the political effect is to seek to exile him from office while precluding any other Opobo person from replacing him.
Context is necessary to understand the case that the Supreme Court had to decide. Going into the 2023 election, the governor of Rivers State, Nyesom Wike, was term-limited. In 2020 and 2021, he publicly declared that he would not impose a successor on the state. In 2023, he did. His choice was a little-known public servant from Opobo-Nkoro, Sim Fubara. After the election, their relationship disintegrated. The reasons are subliminal in this case; the consequences are explicit.
In December 2023, the 27 members of Rivers State House of Assembly loyal to Nyesom Wike, including the Speaker, Martin Amaewhule, ostentatiously announced that they had defected to the ruling All Progressives Congress (APC). In 2015, the Supreme Court of Nigeria ruled that such defection is permissible only if the political party from which the legislators seek to defect is so hopelessly splintered that it “makes it impossible or impracticable for [the] political party to function as such.” If not, according to the court, “the defector automatically looses (sic) his seat.”
With the defection of Martin Amaewhule and his 26 other colleagues, the House of Assembly of Rivers State became factionalised. The remaining five members were loyal to the incumbent governor. Shortly after the defection of the Amaewhule faction in December 2023, the premises of the Rivers State House of Assembly were demolished, ostensibly on the orders of the state government. The faction loyal to the state governor relocated to the Government House where, shortly thereafter, it purported to pass into law the 2024 Appropriation Bill for the State, which became law when the governor promptly assented to it.
The outbreak of litigation that followed has been inexhaustible. The appeal determined by a five-person panel of the Supreme Court on 28 February is one of them. Essentially, it sought orders to restrain the Central Bank of Nigeria from remitting to Rivers State, its share of the proceeds from the Federation Account, except to finance a budget passed by the Amaewhule faction of the State House of Assembly. In other words, this was litigation asking the judiciary to take sides in what is in fact a very grubby dispute over control of Rivers State’s money.
This case traveled up to the Supreme Court with supreme alacrity. The Federal High Court delivered judgment on 30 October 2024, a mere three-and-a-half months after filing on 15 July. Not wishing to be outdone, the Court of Appeal delivered judgment on 13 December 2024, less than a month-and-a-half later. The Supreme Court has been equally supersonic in bringing the case to judgment.
The Supreme Court dealt with two issues when it should have addressed at least three. First, it affirmed the jurisdiction of the Federal High Court to hear the case. Next, on the question of whether the rump of the House of Assembly of Rivers State loyal to the governor could constitutionally sit to pass the 2024 budget, it held that they could not. In support of this position, the court cited precedent applicable to when the legislature sits on impeachment, a special procedure for which the constitutionally prescribed parliamentary arithmetic is different.
The third issue, it left unattended. The Court simply proceeded without deliberation or reasoning to grant all the orders asked for.
An injunction, the principal relief sought in this case, is notoriously a remedy in equity, only granted deliberatively. Over one century ago, the path-breaking decision in The Lusitania laid down the principle that “as a general rule of both civil and common law…. the remedy must be commensurate with the injury received.”
There are four glaring problems with this Supreme Court judgment. The first is not what is in it but what is missing. Lawyers claim that “equity does not act in vain.” The Supreme Court did not bother to provide any reasoning or justification for its orders, leaving it open to legitimate accusations of having acted in vain or in a transaction. Granting the court every latitude on the violations that it found, its orders are an unreasoned overreach.
Second, ordering the Central Bank to withhold Rivers state’s share of the Federation Account is at best a rogue order that punishes the people for a dispute between politicians. It violates the maxim that “equity regards the beneficiary (in this case the people of Rivers State) as the true owner.” Their right to their share of the Federation Account is antecedent to, independent of, and unconnected with the dispute in this case.
Third, being aware of the ongoing litigation on the legal consequences of the defection of the Amaewhule faction of the State House of Assembly, the Supreme Court short-circuited a contingent appellate process and issued dispositions on a dispute that was neither before it nor necessary for the determination of the issues it was called upon to decide. In doing so, the court chose with a touch of injudicious shamelessness to accept the invitation to take sides in the underlying political dispute in Rivers State.
Fourth, the Supreme Court announced revolutionary jurisprudence on the judicial fly, claiming that, in cases where there is a disputed defection, “[o]nly the [legislature] can declare a seat vacant for defection and not the Governor of a State. Not even the Courts can do so.” It takes heedless audacity for an apex court to castrate the judiciary. That is exactly what the court did with this line in italics. When the Supreme Court laid down the contrary principle in 2015, it was by a panel of seven Justices. This Supreme Court purports to overrule that principle without even citing, acknowledging, or considering its earlier decisions on the same point. Moreover, a five-person panel of the Supreme Court cannot overrule a seven-person panel.
When Chief Justice of Nigeria, Kudirat Kekere-Ekun, showed up reportedly to turn the sod on proposed judicial digs with Nyesom Wike last October, there were unheeded warnings then concerning the prohibitive institutional costs of such dalliance with a notorious political litigant who has a reputation for instrumentalising the courts. Many will look at this recent decision from the Supreme Court and say “we told you so.” For the CJN, it will be argued that she was not on the panel; to which the response will be, she chose the judges and constituted the panel.
On 1 December 1887, the Kangaroo court of Rear Admiral Walter Hunt-Grubbe ruled that the presence of King Jaja in Opobo “would be fatal” to British commercial interests and authorised his eventual exile to West Indies. The judgment was widely seen as a transactional travesty and its effect, it was said, was “to haunt the British colonial administration in West Africa for a long time.” It may similarly be said of what the courts of post-colonial Nigeria did in the 137th year of that iniquity that they sought in another transactional travesty to exile another figure from Opobo from his position because his presence would be fatal to the interests of Nigeria’s most prolific political litigant.
Chidi Anselm Odinkalu, a lawyer, teaches at the Fletcher School of Law and Diplomacy and can be reached through chidi.odinkalu@tufts.edu.
