Make Up Your Mind! Rivers State Recognition of Omehia as its Former Governor.

by Vernia Legal Practitioners | Oct 18, 2022 | Politics

Introduction

Brief History

On the 26^th of January 2007, Rt. Hon. Chibuike Amaechi commenced a suit at the Federal High Court, Abuja against Independent National Electoral Commission [INEC] and eventually joined Sir Celestine Omehia and the People Democratic Party [PDP] as parties to the suit. The case was appealed up to the apex Court in Nigeria [the Supreme Court] and the facts of the case are summarized thus: Amechi, a member of PDP, in his quest to be the Gubernatorial candidate of the party in the April 2007 contested the party primaries and emerged the winner. PDP submitted Amaechi’s name to INEC as PDP Gubernatorial candidate for the party but subsequently substituted Omehia’s name for Amaechi without giving cogent and verifiable reasons for the substitution as required by the Electoral Act, 2006.

The Supreme Court found in favor of the Rt. Hon. Chibuike Amaechi. The Court held that the PDP did not give sufficient reasons for substituting Amaechi’s name for that of Omehia. The reason for the substitution did not fulfil the requirements as provided under Section 34 of the Electoral Act. Thus, the substituted candidate’s victory in the election was irrelevant as his participation in the election was improper. The apex Court held that since the party’s candidate was not adequately removed, the campaign for votes done by the party was done in favour of the Chibuike Amaechi and he was the winner of the election, since PDP had won the election. He was thus the Governor of Rivers State by virtue of the political party winning the election. The Apex Court held that the participation of Celestine Omehia in the election was an illegal act and he could not be heard to claim benefits for his illegality. [See; AMAECHI V. INEC & ORS 2008 LPELR – 446 SC]

The First Resolution

By virtue of the judgment of the Supreme Court, Sir Celestine Omehia was Governor of Rivers State from 29^th of May 2007 to 25^th of October 2007 [about five months]. However, contrary to the Supreme Court’s well elucidated Judgment, the state government vide an instrument published in the official gazette of the Rivers State of Nigeria No. 5, Volume 52 of March 2016 under the hand of Governor Nyesom Wike recognized Sir Celestine Omehia as a former governor and restored all his privileges and entitlements.

The Derecognition

It is indeed thought-provoking that seven years after the laudable/detestable decision [depending on where one stands] of Governor Nyesom Wike and the State House of Assembly to accord due recognition to Celestine Omehia as a former Governor of the state, a fresh motion has now been passed to derecognize him based on the same Judgment of Court that was very much potent and valid as at the time the initial recognition was approved.

On the 6^th of October, 2022 a motion was presented by Amaewhule Martins Chike titled “Motion to rescind the Rivers State House of Assembly on the recognition of Sir Celestine Omehia as former Governor of Rivers State and the Restoration of all the benefits and entitlement due to him”. The said entitlement received totaled Six Hundred Million Naira [N600,000,000.00] in benefits and Ninety-Six Million, Five Hundred Thousand Naira [N96,500,000.00] as monthly pension as of September, 2022.

All 21 members of the House present at the plenary voted in favour of the motion and the House adopted the resolution. Governor Wike, probably due to his recent fall out with Omehia, swiftly approved the motion as soon as it got to him. He explained that the recognition given to Sir Celestine Omehia was made in error and with the signing the recognition accorded in addition to accruable rights and benefits are cancelled. The Legal advice from the State Attorney General, which was apparently sought this time, termed the recognition as being “extrajudicial”. One would then wonder why proper legal guidance was not initially sought.

Political Vendetta or Not: Legal Implications Of The Derecognition

Without the rigor of any legal process, the State Government of Rivers State thought it reasonable to restore the dignity and recognition of Sir Celestine Omehia regardless of the existence of a Supreme Court Judgment where the position of the law on the issue was made clear.

It should however be noted that there seems to be an apparent conflict on the interpretation of the Supreme Court Judgment. On one hand, it was interpreted that the Supreme Court was clear that Omehia in the eyes of the law was never a Governor in Rivers State. On the other hand, it was interpreted that the Judgment of the Supreme Court did not make pronouncement on Omehia status as governor or otherwise rather, all the apex court said was that in the eyes of the law, Omehia was not the valid candidate of PDP.

Regardless of the apparent conflict on the interpretation of the said judgment, can Rivers State Government approbate and reprobate? More so when the government on its own volition decided to restore to Omehia the privileges and entitlement of a former Governor. He never fought, protested or went to Court, soliciting such recognition. The government on its own decided it was the “proper thing to do”. It is clear that consistency is one of the hallmarks of sincerity and excellence and this was further buttressed in the case of Attorney General, Rivers State V. Attorney General, Akwa Ibom State [2011] 29 Wrn 1, where the Supreme Court opined thus:

“It is a rule of equity that, one cannot approbate and reprobate…it is a doctrine of justice and it is inequitable to blow hot and cold, this principle find expression in Latin maxim “Allegans Contraria Non Est Audiendus.”  Per BIOBELE ABRAHAM GEORGEWILL JCA [Pp 45 – 46 Paras F – D]

The Apex Court in the case of Ayorinde V. Kuforiji [2022] 12 Nwlr [Part 1843] Pg. 112 Para D also held thus:

“The law is that, a person in the position of respondent will not be allowed to force back the hand of the clock belatedly; having made the appellant change his position and expended monies…, it was too late in the day for the respondent to suddenly wake in a fit of contrived belated awareness…”

Furthermore, it is an established principle of law, by the doctrine of Estoppel that when a person or an establishment [like the Rivers State House of Assembly] has by its declaration, act or omission intentionally caused or permitted a person to believe a thing to be true and act upon such belief, neither it nor its representatives in interest shall be allowed to deny the truth of that thing.  See; Section 169, Evidence Act, 2011.

Therefore, if the law forbids reprobation, the implication is that everything said in such reprobation is of no moment, of no use and ought to be discountenanced and disregarded. This principle of law is expressed in the Latin Maxim “Qui Approbat non Reprobat” quite literally translated to “the one who approbates, cannot reprobate” or “that which I approve, I cannot disapprove.”

However, it is worthy of note that the Rivers State House of Assembly has the power to make, enact and pass laws so long as any laws passed by it are within its own legislative competence and authority. Not only can the legislature enact laws, it can also amend any existing law passed by that arm of government as circumstances may permit. This duty on the legislature to enact and even amend existing laws was alluded to by the apex Court in Amoshima V. State [2001] Lpelr 471 [Sc] when it held that:

“It is trite law that whereas it is the duty of the legislature to enact law, that of the judiciary is to interpret the laws so made. It follows therefore that where there is dissatisfaction with the state of the laws as it exists, and a desire for a change thereof is expressed by the people, it is the duty of the legislature which made the law in the first place to effect the needed reforms by amendments thereto. The duty both to make and amend laws so made belongs exclusively, by constitutional arrangement, to the legislature as provided under Section 4 of the Constitution of the Federal republic of Nigeria, 1999.” Per Onnoghen, J.S.C.

It is clear from the above that the House of Assemblies in Nigeria has the unfettered power to make and amend laws provided it so done in obedience to the relevant constitutional provision under which the law was made. By Section 100 [1] of the CFRN, 1999 [as amended], this power is exercised by Bills passed by the House of Assembly and then assented to by the Governor, except otherwise provided. Therefore, it is very much within the remit of the Rivers State House of Assembly to pass a Bill seeking to recognize Omehia as former governor of Rivers State and where so decided, pass another Bill seeking to amend the initial Bill if same was passed in error.

Another issue to be determined is whether Rivers State Government can compel Omehia to refund in seven days all monetary entitlements especially the sum of Six Hundred Million [N600,000,000.00] in benefits and Ninety-Six Million, Five Hundred Naira [N96,500,000.00] in pension received from the state government as at September 2022. Section 124 [5] of the CFRN, 1999 [as amended] provides as follows:

“124[5] Provisions may be made by law of House of Assembly for the grant of a pension or gratuity to or in respect of a person who had held office as Governor or deputy Governor and was not removed from office as a result of impeachment; and any pension granted by virtue of any provision made in pursuance of this subsection shall be charged upon the Consolidated Revenue Fund of the State.”

From the above provision, it is clear that past Governors and Deputy Governors are entitled to payment of pension or gratuity provided they were not removed from office. Rt. Hon. Chibuike Amaechi during his tenure obviously interpreted the judgement of the Supreme Court in Amaechi V. Inec & Ors 2008 Lpelr – 446 SC to mean that Omehia was removed from office and no monetary entitlement due to former governors should be paid to him. Governor Nyesom Wike and his administration on the other hand decided to do otherwise. He assented to the Bill recognizing Sir Celestine Omehia as a former governor of Rivers State and restored the payment of all accompanying entitlements.

Therefore, if the House of Assembly decides to suddenly withdraw that recognition, then the payment of any entitlement should immediately cease. However, compelling Omehia to refund the entitlement received by him while he was “legally” recognized as a former Governor of Rivers State could be interpreted as abuse of power.

For the purpose of fairness and justice, it would indeed be wise for Sir Celestine Omehia to turn to the Judiciary for intervention and redress, as suggested by many. The court would have to determine the legal justification of the refund and whether the House of Assembly can approbate and reprobate in the same breath. The House of Assembly with Governor Nyesom Wike obviously have no desires whatsoever to take responsibility for their initial error and it would be unfair for them to seek to blame or persecute a man who did not protest or fought for any favors.

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