Rivers: PDP governors are busy-bodies, Fed Govt tells S'Court
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All is set for an epic battle at the Supreme Court between the Federal Government and the 10 governors of the Peoples Democratic Party (PDP) on the declaration of a state of emergency in Rivers State.
The Federal Government has not only faulted the PDP governors action, it is challenging the jurisdiction of the Supreme Court to entertain the suit.
It said the PDP governors have no locus standi to initiate the matter.
It has also said that the PDP plaintiffs’ suit is “hypothetical, academic and speculative.”
It described the PDP states as busy-bodies because the declaration of a state of emergency in Rivers State does not affect them or their governors.
It asked the highest court in the land to dismiss the case.
The government’s response, dated May 9, was filed by 16 lawyers, including 10 Senior Advocates of Nigeria and their six colleagues.
Led by a former Attorney-General of the Federation and Minister of Justice, Chief Akin Olujinmi (SAN), others are Prof. Kanyinsola Ajayi (SAN), Jelili Abiodun Owonikoko(SAN), Kehinde Ogunwumiju (SAN), Tijani A. Gazali(SAN), Babatunde Ogala (SAN), and Olawale Fapohunda(SAN).
Others in the team are Olumide Olujinmi (SAN), Akinyemi Olujinmi(SAN), Ademola Abimbola (SAN), Akinsola Olujinmi, Oluwole Ilori, Abdulwahab Abayomi, Mojeed Balogun, Jideuche Ezi and Ramat Tijani.
The plaintiffs states are Adamawa, Akwa Ibom, Bauchi, Bayelsa, Delta, Enugu, Osun, Oyo, Plateau, Taraba and Zamfara.
There were Indications that Delta State may withdraw from the matter because it is now a state of the All Progressives Congress (APC).
Delta was part of the suit when it was under the control of the PDP.
The government put forward five grounds of preliminary objection.
The pegs are:
● The original jurisdiction of the Supreme Court under Section 232(1) of the 1999 Constitution is exercisable only in a dispute between the Federation of Nigeria and a State or between States in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends. The plaintiffs have not disclosed any dispute, let alone, a justiciable dispute, between the Federation and the Plaintiffs.
●The plaintiffs’ suit has not disclosed any cause of action
● The plaintiffs have no locus standi to institute this suit.
●The plaintiffs’ suit is hypothetical, academic and speculative
●The suit is an abuse of the process of court .
The Federal Government said: “The 1st defendant(the Attorney-General of the Federation, Prince Lateef Fagbemi, (SAN) will at or before the trial of this case, raise the following preliminary objection against the competence of this suit notice of which is hereby given to the plaintiffs.
“The 1st defendant will preliminarily urge the Supreme Court to dismiss this suit on each of the following grounds.”
The Federal Government said there was no dispute to invoke original jurisdiction of the Supreme Court.
It accused the PDP governors of filing a pre-emptive suit to forestall a situation where the President would declare a state of emergency in their own states and suspend them from office.
It said based on speculation by them, a dispute has arisen, which is a false assumption by the PDP states.
It said: “The contention of the 1st defendant (the Attorney-General of the Federation, Prince Lateef Fagbemi, SAN) in this ground of objection is that this suit as composed does not fit into the original jurisdiction of the Supreme Court under Section 232(1) of the 1999 Constitution which is exercisable only in a dispute between the Federation and a State or between States in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.
“ The plaintiffs have not disclosed any dispute, let alone, a justiciable dispute, between the Federation and the plaintiff States. In support of this contention we rely on paragraphs 9, 10, 11, 12 and 13 of the plaintiffs’ affidavit. The case made in those paragraphs by the plaintiffs can be summarized as follows:
(a) that because a state of emergency had been declared before in Plateau and Ekiti States and now in Rivers State, the plaintiffs’ have filed this suit to forestall a situation where the President would declare a state of emergency in their own States and suspend them from office.
(b) that based on that speculation by them, a dispute has arisen which according to them is made manifest by a statement they credited to the 1st defendant at a press briefing in which he was said to have stated that it is Rivers State’s turn today, it can be anybody’s turn tomorrow. That the alleged statement of the 1st defendant amounts to an “imminent threat and present danger that the proclamation of a State of Emergency and suspension of their offices will be replicated in other States of the Federation including their own states.”
The Federal Government asked the apex court to take judicious notice that PDP states have false sense of “imminent threat and present danger” because President Bola Ahmed Tinubu declared a state of emergency in Rivers State.
It also claimed that the main opposition party went into panic mode and instituted the suit because of a press briefing by the Attorney-General of the Federation and Minister of Justice, Prince Lateef Fagbemi (SAN).
The government said: “Submit, the following points are clearly deducible from paragraphs 9, 10, 11, 12 and 13 of the plaintiff’s affidavit, viz:
●That the so-called dispute relied upon by the plaintiffs to predicate their suit relates to the declaration of a state of emergency in Rivers State by the President and an alleged press briefing by the 1st defendant which together have led to the plaintiffs’ false sense of “imminent threat and present danger” that they may suffer a similar experience in the hands of the President and the Attorney General of the Federation, i.e. the 1st defendant herein. Submit, apart from the speculative nature of the plaintiff’s deposition, neither the President nor the 1st defendant or both of them together is synonymous with ‘Federation’ which is defined in Section 318 of the 1999 Constitution as amended to mean “the Federal Republic of Nigeria”. As prescribed in Section 2(1)(2) and Section 3 of the 1999 Constitution as amended, the Federation consists of 36 states and a Federal Capital Territory. That definition of Federation does not include the President or the 1st defendant, the Attorney General of the Federation. We humbly refer to A.G Federation v. A.G. Anambra (2018) 6 NWLR (PT. 1615) 314 at 338GH in which this court pointed out the differences between Federation or Federal Republic of Nigeria and Federal Government. The Supreme Court held at page 338E that the word Federation means Federal Republic of Nigeria, which presently consists of 36 states and the Federal Capital Territory called Abuja. It follows that for a dispute to come within the original jurisdiction of the Supreme Court, the subject matter of the dispute must be a matter in which the interest of the Federation unit consisting of the interest of the 36 states and the FCT, is in issue.
● The term President is also defined in Section 318 to mean the President of the Federal Republic of Nigeria. As also prescribed in Section 1501) of the 1999 Constitution, the Attorney General is the Chief Law Officer of the Federation and a Minister of Government of the Federation. The power to declare a state of emergency in any pert of Nigeria is specifically vested in the President by section 305 of the 1999 Constitution as amended and not in the Federation and not the Attorney General of the Federation.
●Beyond any doubt therefore, the plaintiffs have not shown any dispute between them and the Federation. The complaint of the plaintiffs is directly against the President through the Attorney-General of the Federation who has been sued in this case as the 1st defendant. This much is clear from all the questions formulated by the plaintiffs and the reliefs they are seeking in their originating summons. As held by this Court in A.G. Lagos State v. A.G. Federation & Ors reported n (2014) 9 NWLR (Pt. 1412) 217 for the original jurisdiction to be properly activated, the dispute for adjudication must be between one of the States of Nigeria and the Federation of Nigeria. The Court held at page 270H to 271A-D as follows:
“From the interpretation of the provisions of section 232(1) of the 1999 Constitution in the relevant cases referred to earlier in this judgment, it is quite clear that for this court to exercise its original jurisdiction under this section, the plaintiff’s action against the 1st defendant, this court has to be satisfied that the dispute for adjudication in the action is one between the plaintiff Lagos State of Nigeria as a constituent unit of the Federation of Nigeria and the Federation of Nigeria also as a distinct unit under the Constitution. The words used in Section 232(1) of the Constitution describing the parties are “the Federation”, ‘a State” and “States”. In other words, the dispute must be between the Federation and a State or between the Federation and more than one State or between a State or States in their capacities as members of the federating units of the Federation of Nigeria. The section in my view is not expected to provide avenue for the resolution of disputes between the Federal Government of Nigeria and a State Government of Nigeria or between a State Government and another State Government of Nigeria all of which ae only products of elections. Therefore, since the reliefs claimed by the plaintiff particularly the injunctive relief is against the Federal Government of Nigeria, its servants and its agencies, the relief not being against the Federation of Nigeria or any State or States of the Federation as constituent units of the Federation, is not within the purview of section 232(1) of the 1999 Constitution to confer original jurisdiction on this court.” See also: A.G. Kano State v. A.G. Federation (2007) 6 NWLR (Pt. 1029) 164 at 182; A.G. Anambra State v. A.G. Federation (2007) 12 NWLR (Pt. 1047) 4 at 42; A.G. Abia State v. A.G. Federation (2007) 6 NWLR (Pt. 1029) 200; A.G. Ondo State v/ A.G. Federation (2002) 9 NWLR (Pt. 772) 222.
The government counsels said all the questions formulated by PDP states were directed at the actions of the President and not the, AGFand Minister of Justice.
The government said the plaintiffs’ application before the Supreme Court was incompetent.
It added: “In the same vein, all the questions formulated by the plaintiffs in their originating summons and all the reliefs they are seeking are directed at the actions of the President and the 1st defendant and not against the Federation of Nigeria.
“To that extent the plaintiffs’ suit is incompetent and same is liable to be dismissed preliminarily.”
The government also said the plaintiffs suit has not disclosed any cause of action.
It said: “The contention of the 1st defendant under this head of the preliminary objection is that the plaintiffs’ suit has not disclosed any cause of action which is a prerequisite for a plaintiff to initiate a suit in court.
“The Supreme Court in Onvekwasi v. R.T.C.M.Z.C (2011) 6 NWLR (Pt. 1243) 341 at 359H put it as follows: “There must be a cause of action before an intending litigant can seriously think of initiating proceedings in a court.
“ For the purpose of litigation, a cause of action has been comprehensively defined to entail the fact(s) or combination of fact(s) which gives se to a right to sue and it consists of two elements: the wrongful act of the defendant which gives the plaintiff his cause of complaint and the consequent damage. It is thus constituted by the aggregate or bundle of facts which the law will recognize as giving the plaintiff a substantive right to make a acclaim for remedy or relief against the defendant”.
“See also: Uwazaruonye v. Governor of Imo State & Ors (2013) 8 NWLR (Pt. 1355) 28 at 56H where this Court held that “a plaintiff has a cause of action when his pleadings reveal that there has been an infraction or trespass to his rights and obligations…….. It must be clearly seen in the plaintiff’s pleadings the wrongful act of the defendant, which in effect gives the plaintiff his cause of complaint and the resultant damage from the defendant’s wrongful act.
“Now it is settled law that in an action commenced by originating summons, the affidavit in support of the originating summons serves as the plaintiff’s pleadings. We humbly refer to Uwazuruonye v. Governor of Imo State & Ors (2013) 8 NWLR (Pt. 1355) 28 at 56H Looking at the 32 paragraph affidavit in support of the plaintiffs’ originating summons there is no deposition therein of any wrongful act done by the President or the 1st defendant to the plaintiffs which has caused them damage as to give them the right to complain to this court. Indeed as deposed at paragraphs 9, 10, 11, 12 and 13 of the plaintiffs’ affidavit, they are only by this suit seeking preemptively to “forestall a situation” where the President may declare a state of emergency in their states as has happened in Rivers State. In other words, they have not alleged that any wrong has been done to them or that they suffered any damage as a result of any action of the President or the 1st defendant. Rather, by this suit, they are only ‘standing sentinel’ over the territorial arcade of their offices as Governors of their States. This is no doubt because they found the prospect of a sequestration of their rather exalted offices, even if only temporarily by the engagement of Section 305(1) of the 1999 Constitution, too grim to contemplate.
“ So they embraced the nuclear option of this pre-emptive action in the misplaced hope that it would offer them deliverance from their baseless fear. Reacting to a similar situation in Uwazuruonye v. Governor of Imo State & Ors (supra) at page 57C-F this court held as follows: “There can be no doubt after examining the plaintiff’s pleadings that the appellant is assuming the role of a watchdog to see that legislation is in order as perceived by him. Since he has been unable to show his cause of complaint and the wrongful act of the respondents he clearly has no cause of action.”
“Clearly, from the facts deposed to in their affidavit, the plaintiffs have not disclosed any cause of action and this suit is consequently not justiciable and liable to be dismissed.”
The Federal Government said the PDP states have no any standing to file the suit at the Supreme Court.
It said: “The third ground of objection raised by the 1st defendant queries the standing of the plaintiffs to institute this suit.
“It is settled law that for a plaintiff to have the competence to institute an action, he must have the requisite standing. Dilating on the point in Uwazuruonye v. Governor of Imo State & Ors (supra) at page 57G, this court held as follows: “It has long settled that a party instituting proceedings must have locus standi. Locus standi means the legal capacity to institute proceedings in a court of law. “It is only if a plaintiff has locus standi that he can file, maintain an action relating to his rights and obligations. Such a plaintiff can/may be a human being, persons, statutory body, a government and must be a juristic person. In the absence of a reasonable cause of action or any cause of action for that matter the appellant has no locus standi.”
A major plank of the Federal Government’s argument is the challenge of the jurisdiction of the Supreme Court to hear the suit.
The parties to the case have drawn a battle line which the Supreme Court will address.
The Federal Government insisted that the apex court has no jurisdiction on the matter.
It said: “In the context of a suit brought under the original jurisdiction of the Supreme Court, as herein, it has been held by the Supreme Court in A.G. Anambra v. A.G. Federation (2007) 12 NWLR (Pt. 1047) 1 that the dispute that must invoke the original jurisdiction of the Supreme Court must not be personal dispute but must be a dispute affecting the state. “The Court held further that since the dispute in the case was in respect of the tenure of a Governor, even though it was commenced by the Attorney-General of Anambra State the matter did not affect the State and so the plaintiff had no locus to initiate the suit.
“The Supreme Court again confirmed the same issue in Cross River State v. FRN (2019) 10 NWLR 401 at 448C in which the Attorney General of Cross River State initiated a suit under the original jurisdiction of the Supreme Court in which the central issue had to do with the plaintiff state seeking to enforce the rights of the former Chief Justice of Nigeria. Hon. Justice Walter Onnoghen.
“ Upholding the preliminary objection against the suit, this court held at page 441-G as follows: “In the instant suit, it is evident from the originating summons that the cause of action by virtue of which the plaintiff sets out to invoke the original jurisdiction of this court is as to the civil rights and obligations of Hon. Justice Onnoghen, the Hon. CIN, the plaintiff perceives are violated and or threatened with violation by the defendants rather than the plaintiff’s own rights and obligation. On the authorities, therefore, it lacks the necessary standing to invoke the court’s jurisdiction under section 232 of the Constitution.”
“Just as in the cases of A.G. Anambra v. A.G. Federation and A.G. Cross River v. FRN (supra), even though the suit was commenced by the Attorneys General of the 10 plaintiffs States, the issue they have raised concern only the tenure of office of the Governors of the states, which at paragraph 7 of their affidavit they maintain is for four years. The plaintiffs have also at paragraphs 6, 8, 9, 10, 11, 15 of the affidavit and all the questions formulated by them for determination and the reliefs they are seeking, shown that the suit is about the tenure of the Governors, Deputy Governors and the House of Assembly of the plaintiff States. As held in A.G. Anambra v. A.G. Federation and A.G. Cross-River v. FRN (supra), such suit about the tenure of office of individuals is not about the civil right and obligation of the State. Therefore the plaintiffs have no locus standi to institute the suit. His Lordship, Onnoghen JSC as he then was in his contribution in the case of A.G. Anambra v. A.G. Federation (supra) put it as follows: “………it is very clear that the dispute that must invoke the original jurisdiction of the Supreme Court must not be a personal dispute particularly as the purpose of the Constitution is not to make personal dispute a subject of the original jurisdiction of the Supreme Court. It is also the requirement of the section 232(1) of the 1999 Constitution that the dispute must relate to the existence or extent of a legal right, which must not be personal”.
On the declaration of state of emergency in Rivers State by the President, the Federal Government said it has no effect on the 10 states and their governors.
“Again, the other aspect of the case is, that the plaintiffs question the manner of approval of the emergency proclamation in their question no. 6 and their relief no. 6. The question to consider is how did the manner of approval of the declaration of a state of emergency in Rivers State affect the civil right and obligation of the plaintiff states or even that of the Governors of the 10 States? “Certainly, the manner of approval of the proclamation of emergency is not a matter within the civil right and obligation of any of the 10 states.
“It follows therefore that the fact that the Governors of the ten states used their Attorneys-General to file this suit on their behalf does not confer locus standi on the plaintiffs.
“ It is observed that the plaintiffs also in their relief no, 8 seek an order setting aside the Official Gazette No. 47 of 2025 containing the Proclamation of state of emergency in Rivers State. “Again, the proclamation of a state of emergency in Rivers State does not fall within the civil right and obligation of any of the plaintiffs.
“They are not clothed with any standing at all to seek to set aside the proclamation that does not affect them in any way. They are just busybodies.
“We further rely on the Supreme Court decision in Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423 at 602 where the Court held that “A party who seeks a declaratory relief in the Constitution must show that he has a constitutional interest to protect and the interest is violated or breached to his detriment. “The interest must be substantial, tangible and not vague, intangible or caricature. In ascertaining whether the plaintiff in an action has locus standi, pleadings, that is, the statement of claim must disclose a cause of action vested in the plaintiff and the rights and obligations or interest of the plaintiff which have been violated”.
“Submit, in the foregoing premises, notwithstanding that the suit was commenced by the Attorneys General of the 10 plaintiffs States the suit, none of the issues raised as canvassed above affects the civil right and obligation of any of the plaintiffs.
“They therefore lack the locus standi to maintain the suit which the 1st defendant humbly urges the Supreme Court to dismiss.”
The Federal Government said “the suit is hypothetical, academic and speculative.”
Citing a previous pronouncement of the Supreme Court, it said: “A suit is academic where it is merely theoretical, makes empty sound and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to the practical situations of human nature and humanity. A suit is speculative if it is based on speculation. A suit is speculative if it is not supported by facts or very low on facts but very high in guesses. As courts of law are not established to adjudicate on guesses but on facts such actions are struck out. A suit is hypothetical if it is imaginary and not based on real facts. A suit is hypothetical if it looks like a
“mirage” to deceive the defendant and the court as to the reality of the cause of action. A suit is hypothetical if it is a semblance of the actuality of the cause of action or relief sought.”
The Federal Government said the action was an abuse of court process.
It said: “ The last ground of preliminary objection against the competence of this suit is founded on the contention that the plaintiffs’ suit is an abuse of the process of this court.
“The Supreme Court has in several cases dilated on what constitutes abuse of court process, such that the plaintiffs ought to have known that inflicting their case on the court would amount to an unpardonable egregious abuse of court process.”
“How else does one describe a suit founded as it were, on mere speculation, extremely slippery guesses and feeble argumentation? By their suit, the plaintiffs have badly abused the process of this court in a manner that should invite condemnation by a peremptory dismissal of the suit. In Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 188E-H the Supreme Court held as follows: “The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice. It is recognized that the abuse of the process may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice.”
“ In Tomtec (Nig) Ltd vs. FHA (2009) 18 NWLR (Pt. 1173) 358, 377A an instance of abuse of court process mentioned therein by the Supreme Court is where a suit is premised on frivolity or recklessness. No doubt this is the most fitting epithet for this suit which from the facts is premised on frivolity and recklessness.
“ Submit, what the plaintiffs have done herein amounts to engaging in the improper use of the judicial process by filing a suit founded on speculation, imaginary facts and misleading hypothesis. “For clarity on this we refer to the pivot of the suit erected on paragraphs 9, 10, 11, 12 and 13 of the plaintiffs’ affidavit.
“ According to the plaintiffs they only by their suit seek to forestall a situation where the Presidnet would proceed to suspend the offices of the Governors and Deputy Governors of their states, just because the President had promulgated a state of emergency in Rivers State.
The Federal Government urged the Supreme Court to “uphold this preliminary objection and dismiss this suit.”
