*Goes To Supreme Court 

RIVERS State Governor, Sir Siminalayi Fubara, said the judgment of the Court of Appeal, Abuja Division, did not reinstate the 27 pro-Wike lawmakers, led by Martin Amaewhule, whose seats were declared vacant in the Rivers House of Assembly by the faction, led by Oko-Jumbo, despite the ruling that recognised Amaewhule as Speaker and voided state’s 2024 budget on Thursday, October10.

The three-member panel of the appellate court had in a unanimous judgment dismissed the appeal filed by Fubara for lacking in merit, while upholding the January 22 judgment of Justice James Omotosho of the Federal High Court nullifying the N800billion budget on the grounds that it was not presented before members of the Assembly as required by law.

The court criticised the governor for not adhering to the rule of law in his actions, ruling that his decision to present the Appropriation Bill to only four out of the 31 members of the Assembly constituted a gross violation of the 1999 Constitution (as amended).

Justice Joseph Oyewole, while delivering the lead judgment, ruled on the withdrawal of the counter-affidavit Fubara initially filed to challenge a suit instituted by the Amaewhule-led lawmakers to be recognised as valid members of the Rivers State House of Assembly indicated his agreement with the claims filed against him, saying Fubara, having withdrawn all processes filed to counter the case before the trial court, cannot claim to be dissatisfied with the judgment delivered.

Justice Oyewole said by his approaching to the appellate court, he was being inconsistent, approbating and reprobating, blowing hot and cold at the same time, adding that such conduct had no basis in law, as parties must be consistent in their approach to court matters, and that his withdrawal from the Federal High Court case was a self-inflicted mistake that cannot be redeemed.

It declared that Fubara’s appeal has no utilitarian value, as it cannot confer any advantage on him, having lost his legal rights at the trial court by accepting all the claims filed against him with his withdrawal from the suit.

Justice Oyewole stated that “the person with the right to appeal is the person aggrieved by the decision, that is the person to whom a decision has been pronounced against.

“Now, the position of the appellant is further made obtainable by his position and trend the record of appeal shows on pages 1209 and 1210 that learned Counsel for the appellant, Mr. Imafidon, withdrew all the processes filed by the appellant to contest the action and thereby conceded reaction.

“It is the law that a party must be consistent in the presentation of his case and cannot approbate and reprobate by chasing his disposition, willy-nilly, in the course of litigation exercise.

“A party cannot approbate and reprobate at the same time; the appellant cannot seek for one thing at the lower court and be seeking for another incongruent and parallel thing in this court. Can the law permit him to blow hot and cold at the same time?

“The challenges faced by the appellant in this appeal are self-inflicted and try as one may, it is impossible to see the utilitarian value to be achieved by filing this appeal after withdrawing all processes contesting the action at the lower court and thereby conceding the action.

“It seems to be purely academic for a party to concede to an action at the lower court and then turn around to challenge the same action without any indication of fraud in the presentation of the earlier concession.”

The court ordered Fubara to re-present the budget to the House under Amaewhule, as contained in Justice Omotosho’s judgment, and also stopped him from withholding the Assembly’s fund and removing its Clerk and Deputy Clerk.

Justice Oyewole in dismissing his appeal, said: “In a constitutional democracy, the foundation of every act must be located in the constitution. Autocracy is out of place in the constitutional democracy.

“I, therefor,e resolve this issue against the appellant and in favour of the 1st and 2nd respondent.

“In totality, therefore, this appeal is bereft of merit and it is accordingly dismissed. The judgement of the lower court is hereby affirmed. N500,000 cost is awarded in favour of each of the 1st to 12th respondents, respectively, and against the appellant.”

In concurring, Justice Okon Abang held that the governor cannot appeal the decision of the trial court since he did not counter it and it translates to mean that he has accepted it to be true and the court of law can act on it.

He admonished the governor for frustrating Amaewhule from carrying out his duties, saying he is using his executive powers to act in might, which is not acceptable in a democratic setting

He added: “The appellant, the governor of Rivers State, treated the court order with disdain, levity and subject to the discharge of his function in an unprecedented manner. I agree with the 1st and 2nd respondent Counsel that these are acts of executive lawlessness.

“The rule of might has no place in a democratic setting. Having sworn to uphold the provisions of the constitution, the appellant was and is expected to in his relationship with the 1st and 2nd respondents, apply the rule of law, not the rule of might, in matters affecting the discharge of his function as the governor of Rivers State.

“The appellant’s show of force and might is heavily demonstrated in the 1st and 2nd respondents’ unchallenged deposition of paragraphs 1 to 10 of the affidavit in support of the motion on notice filed by the first and second respondents.

“Any gathering purporting to be Rivers State House of Assembly, led by any other person other than the 2nd respondent, sits in violations of the order delivered by the trial court dated December 7, 2023, and that person acts in vain.”

Justice Omotosho had in his judgment held that the N800billion budget presented by Fubara to the four lawmakers was invalid, as it was not properly presented before the state House of Assembly, as required by the law.

Recall that Fubara presented the budget to a four-member Assembly, led by Edison Ehie, in December last year after the seats of the pro-Wike lawmakers were declared vacant, following their defection from the Peoples Democratic Party (PDP) to the All Progressives Congress (APC).

The four-member assembly  considered the budget, passed it and the governor assented to it within 24 hours, the legitimacy of which the pro-Wike lawmakers challenged and Justice Omotosho nullified in January this year.

Dissatisfied with the judgment, Fubara approached the appellate court.

But despite the higher court ruling, the Rivers State Attorney General and Commissioner for Justice, Dagogo Iboroma (SAN), in his reaction in a statement on Thursday, said the issue of defection was not before the court for determination, insisting that the seats of the pro-Wike lawmakers automatically became vacant the moment they defected on 11 December.

He stated: “By operation of law, particularly Section 109(i) (g) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), Amaewhule and 26 others automatically lost their seats as members of the Rivers State House of Assembly on the 11th day of December 2023, as Section 109(1)(g) is self-executory, as no court order is required thereof.”

The commissioner said Fubara had directed his lawyers to file an appeal at the Supreme Court against the higher court judgment and an application for a stay of execution of the judgment, which he said maintains the status quo.