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…by his withdrawal he forfeited everything by accepting Appeal Court’s verdict

Barrister Godspower Egbule, a Rivers State based legal practitioner has given a clear view concerning Governor Seminalayi Fubara’s withdrawal of suit from the Supreme Court.

Recall that different legal positions have been espoused by different interpreters including an impostor lawyers immediately the Supreme Court passed its verdict last Monday.

Egbule in a podcast by Crystal Beam aptly captured all the nitty gritty with references to various sections in the 1999 constitution as amended, leaving no segment untouched.

Apparently, Barrister Egbule who has followed the genesis of the Rivers political logjam and its implications said:

” First of all let me say that the courts exist to allow parties to ventilate their grievances and when a party takes the other person to court, the court gives a judgment.

” Either party who may not be okay or may have reservations about that judgment appeals to the Court of Appeal and depending on who wins the other person exercises his own right of appeal and appeal to the Supreme Court.

“You know there are lots of contending issues in Rivers State with respect to the Judgment of Hon. Justice Omotosho, you would recall that the matter started on the 29th of November 2023 wherein Rt. Hon. Martin Amaewhule that is the Speaker of the Rivers State House of Assembly approached the court for several relieves.

“Number one was to stop the National Assembly from taking over the activities of the House of Assembly because then too Edison Ehi had declared himself as the Speaker and when there is any controversy making it practically impossible for the House of Assembly to sit and transact business the National Assembly can take over.

“So Rt. Hon. Martins Amaewhule approached the Federal High Court to stop the National Assembly from taking over the activities of the Rivers State House assembly, to stop the Governor from transferring the clerk of the Rivers State House assembly because it’s not within his power.

“The other one was to stop the Governor from stopping money standing to the credit of Rivers State House of Assembly. Then all these matters were pending, now in the course of that matter, on the 12th of December 2023, the Governor now presented that 2024 Budget before Edison Ehi.

” On the 15th of December 2023, Rt. Hon. Martins Amaewhule filed a motion before the Federal High Court and asked the Federal High Court to set aside the budget that was presented and passed by Edison Ehi and Governor Sim Fubara.

“Now in the course of the judgment the Federal High Court led by Hon. Justice Omotosho granted the relieves sought by Rt. Hon. Martins Amaewhule because the Governor had withdrawn his processes and Edison had resigned his position as a member of the House of Assembly which means he was no longer a party to that suit.

“So in the course of delivering judgment and granting the relief sought by Rt. Hon. Martins Amaewhule, the court also delved into the budget passed by the Governor and Edison Ehi and nullify that budget.

“And one of the important orders that Hon. Justice Omotosho made was to restrain the Governor from making any request, any presentation before any other House of Assembly including nomination to any other House of Assembly other than the one led by Rt. Hon. Martins Amaewhule.

“It was an order of the Court. It is one of the orders. Yes, that was an order, one of the orders of Hon. Justice Omotosho. Do not make any nomination, do not make any request, do not make any kind of demand to any other House of Assembly other than the one led by Rt. Hon. Martins Amaewhule.

“Now the Governor exercised his right of appeal and appealed to the Court of Appeal. The Court of Appeal dismissed his appeal and upheld the judgment of Hon. Justice Omotosho .A: The entire judgment.

“Yes the entire judgment of Hon. Justice Omotosho. Now the Governor also exercised his right of appeal to appeal to the Supreme Court. But interestingly the Governor now on the 6th of February even before the date of the hearing now withdrew his appeal meaning that the judgment of Hon. Justice Omotosho and that of the Court of Appeal with respect to that judgment stands.

“There has been a lot of misconception or I don’t know if I’ll call it deliberate mischief about what’s happening. Now some people say that matter was withdrawn because it has been spent. Now there has been a lot of misinformation with respect to the judgment of Hon. Justice Omotosho that was upheld by the Court of Appeal and that is to say that the matter before the Supreme Court has become spent.

“But you see the matter before the Supreme Court was not just about the 2024 Budget. In any case Section 120 of the Constitution provides that the Governor cannot make any spending from the Consolidated Revenue Fund of Rivers State without an approved appropriation law.

“So by withdrawing his appeal what the Governor has done is that the Governor has conceded and indeed agreed that he spent money standing to the credit or Rivers State Government without the budget and that itself is gross misconduct. So the consequences of the Governor withdrawing his appeal before the Supreme Court and dismissal by the Supreme Court are indeed enormous and I pray that the Governor will come to the realization of the consequences of his actions because one way or the other the Supreme Court would have determined the matter and all we can do is to hazard the judgment of the Supreme Court but on that day the Supreme Court would give its judgment and nobody knows when that judgment would stop.

On the claim that Fubara’s withdrawal of the suit was strategic, Egbule said:

“Okay first of all let me say something, the argument that the Supreme Court didn’t make any pronouncement on that suffers from poverty of logic and eclipse of legal reasoning because if you take a look at the provisions of Section 287 of the Constitution, the judgment of the Supreme Court binds the Court of Appeal and every other courts.

“The judgment of the Court of Appeal binds every other courts and indeed every other person, even the judgment of a Federal High Court binds every other person and indeed can be enforced.

“So the Supreme Court need not make any statement, you know why because what you have done is that you have agreed to the judgment of the Court of Appeal what else do you want the Supreme Court to do?

” So you’re no longer opposing that judgment.: That’s exactly, so you don’t expect the Supreme Court to make any statement on that again. I mean, there was a land issue between A and B, B goes to a court gets judgment, A appeals and go to the Court of Appeal, loses at the Court of Appeal, goes to the Supreme Court and goes to withdraw his appeal at the Supreme Court. What he has done is that he has said I now want to be bound by the Judgment of the State High Court and that of the Court of Appeal.

So I do not know what any other person is expecting the Supreme Court to do because you need not go to the Supreme Court, is your right of appeal. You choose to exercise it, you also have a right to wave it. So what the Governor has done is the Governor has said no I don’t think there’s any merit in my appeal so let me be bound by the judgment of the Court of Appeal.

On the cost awarded against Fubara, Egbule explained: “Well, cost, in legal practice we always say cost follow events. I mean if you have made the other party expend energy and resources and you brought him to court and the court finds that your application has no merit, the court would naturally award cost against you.

“But irrespective of whether cost was awarded against the Governor or not what we should be looking at is the implication because it would have still been possible that cost was not even awarded, so even if cost was not awarded, question is what is the implication of that withdrawal?

“And the implication of that withdrawal is that, number one the Governor has accepted that Rt. Hon. Martins Amaewhule is the Speaker. The Governor has accepted that he cannot make any request, nomination or application to any other House of Assembly other than the one led by Rt. Hon. Martins Amaewhule.

“The governor has also accepted that he doesn’t have the power to transfer or deal with the clerk of the House of Assembly.

“The Governor has also accepted that the National Assembly cannot come to take over the activities of the Rivers State House of Assembly.

“The government also accepted that money standing to the credit of Rivers State House Assembly should also be paid to the House of Assembly led by Rt. Hon. Martins Amaewhule.

“The Governor has also accepted that he cannot obstruct the activities of the Rivers State House of Assembly led by Rt. Hon. Martins Amaewhule.

“So when you take a look, lastly the Governor also accepted that he spent 2024 monies without budget, now that can never be spent, a constitutional breach can never be spent because and I think we need to take this argument even beyond what the Governor is doing.

“We now need to look at what the House of Assembly can do because it’s not a thing, there is no ruling that the court will give in this regard and that’s why I’ll tell you that in as much as the House of Assembly remains the bastion of democracy, when you have a House of Assembly tied to the apron strings of a Governor, just know that you’re going to have monumental corruption. Because you can still have a House of Assembly that doesn’t bark and doesn’t bite and the Governor can spend money frivolously, nothing would happen to him because if you go to court, what do you want the court to do?

“The Governor has accepted that I spent money without budget contrary to the provisions of section 120 of the Constitution; question, what would the House of Assembly do because it’s a gross misconduct.

On the usage of a three-man Assembly, responding, Egbule said: “Well what the Governor has done by spending money without appropriation law is actually gross misconduct but like I said the House of Assembly can choose to sleep on it, the House of Assembly can choose to act on it. And the conversations now should not even be whether the Governor sends nomination to Oko Jombo, that’s not the argument because you see a criminal will continue to perpetuate his acts if the law does not hold him.

“So the argument we should do is not why are you stealing, the argument we should do is police why are you not apprehending him and taking him to court. But in this instance now the question we should ask the House of Assembly, in the light of what the Governor has done what are you going to do because number one to spend money without appropriation is gross misconduct and there are lot of authorities to that effect.

“So the House of Assembly can call the Governor to give accounts and explain how he spent money without a budget and that itself may now obviously lead to a new phase of the political crisis in Rivers State which is actually impeachment.

Explaining what it entails when a matter is dismissed or struck out, he said: “When a matter is struck out depending on the stage, the other party can re-file. When a matter is dismissed also depending on the stage, your right of re-filing that matter is abolished but it depends on the stage of the proceedings.

“Where parties have filed their processes in contest the matter we had at the Supreme Court where parties have filed their processes and you want to withdraw, that matter will be dismissed because parties have filed their processes.

On whether the governor can re-file the case, the lawyer explained that :” In this particular case the Governor has accepted all that has transpired, so the Governor does not have the right to appeal against the judgment of Omotosho as enormous in the applications of that judgment the Governor has lost his right to appeal against that judgment.

On the issue of defection and position of Femi Falana, Egbule said: ” Let me say this that by virtue of section 109 sub 1G, it says that the member of the House of Assembly loses his seat when he defects when there is no division in the political party that sponsored him. But you see when you take a look at and when you want to make interpretations with respect to constitutional provisions you have to look at the constitution in context.

Section 109 must be read in context. Section 109 has sub 1, sub 2 and sub 3. Section 109 sub 1G is not automatic because you have to take a look at what section sub 2 says. Sub 2 says it is the speaker that is imbued with the right to declare a seat vacant, so until the speaker declares a seat vacant you actually cannot say that someone has defected because it’s actually the power given to the speaker of the House of Assembly, given to the President of the Senate and given to the Speaker of the House of Representatives.

On the Speaker’s alleged defection: “Now the question is oh the speaker also defected but that’s an allegation because I’m going to come to a judgment that dealt with this particular defection issue.

“Now you are saying the speaker defected, the principle of law is that when a statute had provided for a procedure or a method by which something can be done or should be done, no other method should be adopted to implement that thing. So if the constitution has said is a speaker and the speaker has also resigned according to some persons, no other person can declare that seat vacant, that itself presents us with another constitutional lacuna, so what do we do? I will give you an example, by virtue of the constitution it is only members of a State Executive Council that can say the Governor has become incapable of discharging the functions of his office on the basis of ill health.

“It is only members of the Executive Council. Now I usually ask question about those who say section 109 sub 2 shouldn’t be tainable because the speaker also resigned; who appoints the commissioners who are also members of the Executive Council, the Governor.

Naturally speaking would you expect those appointed by the Governor to declare the Governor incapable of discharging the functions of his office? In the event they don’t do it, does anybody have that right to do it? No. Constitutional provisions must be respected, if you find that there are lacunas in the constitution all you need to do is go back to the legislature to make amends. And if you take a look at the historical antecedent of section 109, you have to take a look at section 103 of the 1979 Constitution which also provided for the same provision you have in section 109 which is about defection.

The challenge we had in the 1979 Constitution is that it didn’t provide that it was the speaker that was going to declare that seat vacant, then it didn’t provide it. So if we were still practicing or using the 1979 Constitution then it’s tenable to say it’s automatic but now we have a 1999 Constitution that gives the power to the speaker, so if the 1999 Constitution has given that power to the speaker no other person can exercise it until that is also amended. But you see we also need to realize that this issue of defection is an allegation because even those you say they have defected have said they have not defected…

Still on defection, Egbule said “We practice an adversarial system of jurisprudence, which a civil matter you have to prove, a civil or criminal matter you have to prove. In civil prove on the balance of probability then in a criminal matter prove beyond reasonable doubt. So if you make an allegation the burden is on you to prove.

” If someone says I didn’t defect and you say you defected you have the court to ventilate your grievances. But will tell you know the judgment of a Court of Appeal delivered on the 13th of December 2024 actually also dealt with this issue of defection. If you take a look at page 74 of that judgment, the court said that alleged defection didn’t exist.

“So when you still see people saying oh they defected and with greatest deference to Femi Falana SAN, I wonder if he has read the judgment because that judgment as of today is still standing, the court said that alleged defection did not occur.

“That appeal was relying on the appeal that dealt with the case of Hon. Justice Omotosho and the appeal that dealt with the judgment of Hon. Justice Wally. The Court of Appeal came and said by virtue of these concurrent findings of these two courts, that alleged defection did not exist.

“So as of today if you’re still saying they defected, it’s your personal opinion because you have not presented it before the court. Now even the case of Hon. Justice Omotosho they still had the opportunity of presenting it to the court you know why when the Governor presented a budget on the 12th of December 2023, on the 15th of December Rt. Hon. Martins Amaewhule brought that to the notice of the court. You who is saying they defected on the 11th why didn’t you bring it to the notice of the court? I mean the court is not a scavenger that would leave the judis that sit in the court to now go and be scavenging for fact, no, it is you that bring that evidence before the court, if you don’t bring it before the court what do you want the court to do?

“The court act based on facts and applies the law to those facts. The fact as to whether they have defected is not before the court, you now went to the Court of Appeal and you raised it.

“The court said there is no sufficient evidence to back this allegation that they defected and said there is no such defection.

“So I wonder people who still say they have defected. You said I have defected, I said I have not defected. I mean let’s say you said my name is ABC and I said no my name is Godspower Egbule, is it enough for you to go to court and say no your name is not Godspower Egbule, with evidence and to show oh I have your BVN, I have your certificates, I have all of these you present it before the court.

You can’t just say that I defected and you have a forum for you to ventilate your grievances and you didn’t utilize it.

A: But there’s also this case of sworn affidavit by the lawmakers. I don’t know what happened, the matter was in the court and then along the line I think it was withdrawn and all that. So some persons keep saying that they swore to an affidavit which is also in public domain. I don’t understand, can you please shed more light on that. R: You know there are just certain comments I would not want to make with respect to this; one is to not embarrass some persons because there are certain arguments that shouldn’t be coming from lawyers.

You talk about an affidavit, you can amend an affidavit. In any case you must meet the requirements of the law in the event you want to use an affidavit sworn in a different court in another court, you must meet some requirements. So the question now is, this document you’re showing to the public, has the court decided on it? So if the court does not decide on it, what are you going to do with it?

As of today we have a judgment of the Court of Appeal that said they have not defected, so any other opinion that someone has is his mere opinion and the constitution guarantees you the right to freely express yourself. But when you’re done expressing yourself the law stands.

A: So it’s not about video evidence of…

R: You can have all of this video evidence and you are not able to present it before the court. You can have video evidence; the Evidence Act in section 84 tells you what you need to comply with to even bring that evidence before the court.

A: There’s something I need us to actually look at; now the issue of evidence of defection, assuming that defection took place at plenary, normally we have the clerk who is supposed to have record of activities on that day. Now the people who alleged defection for instance the Edison Ehi who said they had defected, he declared their seat vacant which is why Oko Jombo is also relying on that. Was Edison involved that day and then was he the Speaker and does he also have access to the records of activities on that same day because I’m beginning to wonder doesn’t the clerk have a role to play in this?

R: Well you know that at some point the Governor now moved the sitting of the House of Assembly to government house but the appointment of the clerk rest squarely with the House Assembly, so whatever the Governor is doing just tells you it’s in contravention of the law. Then with respect to the video evidence and the other things that you have stated, the practice of the law and the provisions of the law is that the best evidence as to show what actually happened in the House of Assembly is in hands ad which records every other thing. Now beyond recording every other thing, you will need to present it before the court. And also do not forget that everything that Edison Ehi did was nullified by the judgment of Hon. Justice Omotosho.

” Okay, I have made commentaries on that, I have seen that order, there is nowhere in that order where Edison was declared as the Speaker, nothing in that order declares Edison as Speaker.In any case the entire thing that Edison did was nullified by Hon. Justice Omotosho because Edison was also a party to that suit before he resigned his membership of the House of Assembly.

A: And withdrew his…R: It wasn’t Edison, it’s the Governor that withdrew. Edison resigned and automatically he lost being a party to that suit because his party to that suit is because he is a member of House of Assembly. But in any case you said you got an order of court and there’s another proceeding going on, you had the opportunity of presenting that your order you had before Hon. Justice Omotosho.

But because naturally you know there is nothing in that order telling you that you’re the Speaker you obviously will not present it before the court. You can’t present that order that Hon. Justice Danagogo gave and you said this order made you the Speaker, you know why? By the provisions of the Constitution section 92 provides how the Speaker and Deputy Speaker will be elected and the Constitution also provides procedure for removal of a Speaker and Deputy Speaker.

‘The election of a Speaker is by majority but the removal of a Speaker is by two third majority, so it is simple to elect a Speaker but difficult to remove him, very difficult, you have to have two third majority. So the question we should put out is was there any time that Edison Ehi had two third majority to remove Rt. Hon. Martins Amaewhule because the court will never make you a Speaker, no court will ever make you a Speaker because it is a Constitutional provision, you have to be elected by your fellow members of the House of Assembly but for them to remove you they will need two third majority.

“And so nobody can go, it is just like me going to court and say court please declare me, I am the Governor of Rivers State. You didn’t contest an election, does a court make someone a governor no, except someone disputes that election that brought you in and can present evidence to show that he won the election.

“You didn’t participate in an election, you didn’t go to tribunal you now say you should be declared… imagine somebody now parades himself as Governor of Rivers State that’s the exactly thing these same persons are doing by saying they are Speakers of Rivers State House of Assembly. No court can make you Speaker.

” Speakership is by the Constitution and the constitution did not contemplate faction. And let me also say this and I say this to journalists because you have a great role to play.

“When you call someone factional Speaker what you’re doing is that you’re laying credence to the person’s status. A court has said this person is not and you are also saying factional because a lot of times I see media houses they do that, it is wrong.

“We have to now learn how to respect judgments of court. No, no, the Constitution did not contemplate a faction so it’s either you say Rt. Hon. Martins Amaewhule is the Speaker of the Rivers State House of Assembly or you say he’s not.

“But if he is then there can be no person to be addressed as the Speaker of the Rivers State House of Assembly.

On the way forward, Egbule said: “Well this other issue as to what portend raises a different dimension. The way forward is very simple, political actors must learn to abide by the law and decisions of the law and not fanning sentiments because sentiment may stay for some time but at the end of the day it will whittle down.

“Then as to what it portends, very simple. The Governor is a governor, he’s saying he’s the Governor, the House of Assembly is the House of Assembly, they too will show that they are members of the House of Assembly, they have powers.

“The unfortunate thing that has happened is that I’m not sure the Governor realizes the enormous powers of the House of Assembly, I’m not sure he does because if he does he would know that no Governor can succeed without the House of Assembly, you obviously cannot. And any Governor you see complaining too much about the House of Assembly just know that that Governor is saying that the House of Assembly is not giving opportunity to most times to commit wrongs. Because what would the legislature do?

“The power of the legislature to remove you is to the extent that you have committed gross misconduct; so if you have not committed gross misconduct you cannot be afraid of the legislature.

“Even if it’s the easiest thing to do in terms of the seat of the Governor and that of the legislature, it is easier to remove a Governor, very easy by constitutional provision. But you see the legislature cannot just wake up one day to remove you if you have not committed infraction. So for the Governor, the Governor should now begin to think of how to maneuver himself with respect to the constitutional infractions that he has committed, for me that is the next phase of what is going to happen to Rivers. And again there should be no emotions about it because too often we talk law rather than, a lot of people portray fanciful emotions rather than law but we should take a look at what the law has said irrespective of whose ox will be goad.