The Court of Appeal in Abuja has affirmed the January 22 judgment by Justice James Omotosho of the Federal High Court in Abuja nullifying the passage of Rivers’ N800 billion 2024 budget by four members of the House of Assembly.
In a unanimous judgment on Thursday, a three-member panel of the appellate court, led by Justice Joseph Oyewole, held that the appeal filed by the River State Governor, Simianalayi Fubara against the January 22 judgment was unmeritorious.
Justice Oyewole, who authored and read the lead judgment, determined the appeal, marked: CA/ABJ/CV/133/2024 on a single issue, having earlier struck out eight grounds of appeal and five out of the six issue raised by the appellant.
The sole issue, which was whether the trial court was right when it granted the reliefs in the first and second respondents’s motion on notice filed on 15th December 2023, was resolved against the appellant.
The judge held that, having failed to challenge the case at the trial court, by withdrawing all the processes (documents) he filed against the suit, cannot turn around to now seek to appeal the judgment.
He held that by withdrawing, on January 8, all his processes earlier filed against the suit at the trial court, he conceded to all the allegations made against him and all the facts as stated by the plaintiffs.
Justice Oyewole proceeded to award costs of N500,000 in favour of each of the first to 12th respondents.
The judge said:;”The non-contest of the action (suit) at the lower court by the appellant and the resignation of the 18th respondent from the first respondent (Rivers House of Assembly) left the action of the first and second respondents unchallenged and thereby left the lower court with no option than to accord evidential weight to the unchallenged affidavit evidence before it.
“The appellant, without disputing the substance at trial, surreptitiously wanted it set aside in this appeal. Litigation by stealth is an outdated strategy with zero efficacy.
“By withdrawing his processes contesting the substantive action and the motion on notice in issue the appellant committed what I considered a faux pas, which cannot be redeemed by advocacy, no matter how brilliant.
“The appellant, as Governor of Rivers State, conceded this action at the lower court,” he said.
Justice Oyewole noted that Fubara, who was the 11th defendant before the trial court, did not counter all the weighty allegations of unlawful conduct raised against him in a motion filed by the plaintiffs.
“As earlier pointed out, by withdrawing his counter affidavit and other processes filed in opposition to the application of 15th December 2023 the appellant is deemed to have admitted these rather weighty facts.
“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 an action at the lower court and then, turn around to challenge the same action without any indication of fraud or misrepresentation being responsible for the earlier concession.”
Justice Oyewole faulted the decision by Fubara to deal with only four members of the state’s Assembly, noting that the Legislature forms the fulcrum of any democracy, which must be protected and guarded.
He said: “By encouraging four members of the Rivers State House of Assembly out of 32 to constitute the basis for legislative activities, the appellant, as Governor of Rivers State was operating with 12.5 percent of the entity constituting Rivers State.
“In a constitutional democracy, the foundation of every act must be located in the Constitution as the grundnorm. Autocracy is out of place in constitutional democracy.
“I therefore resolve this remaining issue against the appellant, and in favour of the first and second respondents. In totality therefore, this appeal is bereft of merit and it is accordingly, dismissed,” Justice Oyewole said.
Justices Okon Abang and Ishaq Sanni, who were also on the panel, agreed with the lead judgment.
Justice Omotosho had, in the January 22 judgment in the suit marked: FHC/ABJ/CS/1613/2023,
described the passage of the Rivers State’s 2024 Appropriation Bill by the five lawmakers, led by Ehie Edison, as an aberration and illegality.
He consequently ordered Governor Fubara to represent the budget to the Martins Amaewhule-led Assembly.
The judge had earlier on November 30, 2023 gave an ex-parte ruling in which in which he an interim order restraining Fubara and his agents from obstructing the pro-Wike legislators from carrying out their constitutional duties.
He also restrained the governor from removing/redeploying the Clerk of the Assembly and withholding funds meant for the Assembly, pending the determination of the substantive suit.
The judge extended the order on December 7, 2023 when the parties returned to court.
But, while the order subsisted, Fubara presented the budget that the five lawmakers loyal to him passed.
The governor also prevented the pro-Wike legislators from sitting by demolishing a part of the Assembly complex and withholding funds for legislative functions.
Justice Omotosho in the judgment of January 22 held that the four lawmakers’ passage of the budget and other actions taken while the November 30 order subsisted amounted to nullity.
He said Fubara acted like a tyrant in the manner the Assembly complex was partially demolished and funds for legislative activities withheld.
The judge issued an order restraining Fubara from frustrating the Assembly-led by Amaewhule from sitting or interfering in its activities.
He also described as unlawful, Fubara’s redeployment of the Clerk and Deputy Clerk out of the Assembly, stating that the action amounted to an affront on separation of power.
Justice Omotosho ordered the Clerk and the Deputy Clerk to resume office immediately and unhindered.
Apart from also asking Fubara to promptly release all monies standing to the credit of the Assembly, the judge ordered the IGP to immediately deploy his operatives to the Assembly complex.
Justice Omotosho also barred the National Assembly from taking over the Assembly or accepting or treating any request by Fubara on any matter affecting the Legislature
