EXCLUSIVE: Why Fubara cannot go to supreme court over suspension
A supreme court ruling in 2006 effectively bars Siminalayi Fubara, the suspended governor of Rivers state, from approaching the court to seek an enforcement of his rights, TheCable can report.
However, he can initiate an action at the federal high court but chances of a speedy resolution are bleak, according to lawyers who spoke with TheCable.
In a live national broadcast on March 19, President Bola Tinubu announced the six-month suspension of Fubara, his deputy, Ngozi Odu, and all members of the state assembly.
Fubara is a member of the leading opposition party, the Peoples Democratic Party (PDP).
He also appointed retired Vice-Admiral Ibok-Ete Ibas as the state’s administrator.
While Section 305 of the 1999 Constitution (as amended) grants the president the authority to declare a state of emergency under specific conditions, legal experts have argued that suspending a sitting governor, deputy governor, and lawmakers exceeds the constitutional powers of the presidency.
LACK OF LOCUS
On May 18, 2004, then-President Olusegun Obasanjo declared a state of emergency in Plateau state following violent ethnic and religious clashes.
He suspended Joshua Dariye, the governor, and the state legislature, appointing a retired general, Chris Alli, as the state’s sole administrator.
Aggrieved, the Plateau state government and the state house of assembly filed a lawsuit at the supreme court (SC. 113/2004) on June 24, 2004, challenging the president’s actions.
However, the defendants — the attorney-general of the federation (AGF) and the national assembly — objected, arguing that the plaintiffs lacked the legal standing (locus standi) to sue on behalf of the state.
Alli, as the appointed administrator, also filed a counter-affidavit stating that he had not authorised anyone to challenge the president’s decision in court.
“As the officer conferred with the executive powers to administer Plateau state I have not instructed anybody whomsoever to institute any action challenging the validity or otherwise of the constitutional exercise of powers by the President and national assembly with regards to Plateau state,” Alli averred.
Delivering judgment on January 20, 2006, a seven-member panel of the apex court led by then-chief justice of Nigeria, Muhammadu Uwais, struck out the case on jurisdictional grounds.
Idris Kutigi, who delivered the lead judgment, ruled that the appointed administrator had full control of the state and had not given consent for the suit.
Since there was no legal dispute between the administrator and the federal government, the court lacked the original jurisdiction to hear the case, he said.
“My conclusion therefore is that the 1st and 2nd plaintiffs did not authorise this suit and no instruction was given for filing same at the time it was filed,” Kutigi held.
“The suit having been filed without the authorisation by the plaintiffs deserves one thing only. That one thing is simply to strike out the case in its entirety.”
This precedent means Fubara cannot sue in the name of the Rivers state government since he no longer holds executive authority under the state of emergency.
CAN’T FILE IN PERSONAL CAPACITY
The supreme court, in Plateau State v. Attorney-General of the Federation, also clarified that under Section 232(1) of the 1999 Constitution, it only has original jurisdiction over disputes between the federal government and a state — not cases filed by individuals in their personal capacity.
The court struck out all reliefs sought on behalf of Dariye, the deputy governor, members of the house of assembly, and state commissioners, ruling that it lacked jurisdiction to entertain their personal grievances.
This sets a precedent: Fubara cannot personally approach the supreme court to challenge his suspension.
Other governors elected on the platform of the PDP have resolved to approach the supreme court to challenge the declaration of emergency rule.
Fubara is notably not listed as a plaintiff.
SOLACE AT THE HIGH COURT, PEHARPS?
If Fubara cannot seek redress at the supreme court, could the federal high court offer an alternative legal pathway?
The federal high court has jurisdiction over cases involving the enforcement of fundamental rights, constitutional interpretation, and disputes involving the federal government.
Under Section 251 especially subsection (r) of the 1999 Constitution, the court can hear cases where the federal government or any of its agencies is a party.
This raises the question of whether Fubara or not can challenge his suspension by arguing that it violates his fundamental rights or seek judicial review arguing that his suspension exceeds presidential powers.
Ultimately, while the federal high court might offer a window for legal action, success would depend on whether Fubara’s legal team can establish that the president acted beyond his constitutional powers.
Even then, lawyers contend the case would likely face objections from the federal government and could take years to resolve — by which time the six-month suspension would have lapsed.
