Between the Rule of Law and Self-Help

By Rotimi Ogunleye

Unfolding events in the Nigerian landscape have seemingly blurred the sharp boundary hkl0pbetween adherence to the rule of law and embrace of self-help. The constitution of the Federal Republic of Nigeria 1999 as amended (hereinafter referred to as the Constitution) states in Section 1(2) that: “The Federal Republic of Nigeria shall not be governed nor shall any persons or group of persons take control of the Government of Nigeria or any part except in accordance with the provisions of this constitution.” In subsequent provisions, the Constitution states clearly how the Federal Republic of Nigeria or any part of it shall be governed, organised or managed. Sections 2 and 3 of the Constitution provide for an indivisible and indissoluble sovereign Federal Republic of Nigeria (section 2(1) of the Constitution) consisting of 36 States (section 3(1) of the Constitution) and 768 local government areas and six area councils in the Federal Capital Territory (section 3(6) of the Constitution). The mode of establishing governments by democratically elected officials in each of the three tiers of government are provided for in sections 7 for local government councils, sections 71 to 79 for the National Assembly, sections 131 to 134 for the President of the Federation, sections 112 to 119 for the House of Assembly and sections 177 to 179 of the Constitution for the Governor of a State.

The Constitution also provides for not only how the tier and arm operates but also how it is constituted and organised. But more often than not there is the tendency to resort to self-help. Two cases exemplify this trend. The first occurred in Osun State. The Court of Appeal in All Progressives Congress & Ors. v. Peoples Democratic Party & Ors. suit number CA/AK/270/2022 allowed the appeal of the Appellants against the ruling and judgement of the lower court (Federal High Court, Oshogbo Judicial Division) delivered on the 15th day of September 2022 and 25th day of November 2022 respectively.

The lower court had granted the reliefs sought by the Plaintiff and made the consequential order that all the elected local government officials in the State should vacate their offices. But by the judgement of the Court of Appeal dated the 10th day of February 2025, the panel of the appellate court comprising Justice Isaiah Olufemi Akeju, Justice Abubakar Muazu Lamido and Justice Jane Esienanwan Inyang held that the initial originating summons filed by the 1st Respondent (as Plaintiff in the lower court) did not disclose any cause of action and the lower court was wrong in granting leave to amend an incompetent originating summons through the motion dated the 31st day of August 2022.

In effect, the Court of Appeal’s judgement dated the 10th day of February 2025 resolved only two out of the four issues formulated by the Appellants in favour of the Appellants. The court found that the suit disclosed no reasonable cause of action, that it is incompetent and liable to be struck out and that an incompetent void originating summons or fatally defective process cannot be cured by amendment. The entire proceedings at the lower court therefore became a nullity see Elaigwu v. Tong (2016) 14 N.W.L.R. part 1532 page 165 at page 190 paragraph B to E ratio 11. But the court went ahead to hold that a consideration of the two remaining issues has become an academic exercise which this court is not prepared to venture into. The following are the two remaining issues numbered 3 and 4 out of the four issues formulated by the appellants;

(3) Was the lower court right to have granted the relief sought by the 1st Respondent on the ground of noncompliance with the Electoral Act by the 3rd Respondent.

(4) Was the lower court right to have made a consequential order nullifying the Local Government election of 15th October 2022 and ordering the duly elected officers to vacate their office forthwith despite such reliefs not having been sought by the 1st Respondent.

The Court of Appeal did not give the consequential order that the council chairmen and councilors that had earlier vacated their seats in Osun State should be reinstated. In DEC Oil & Gas Limited v. Shell Nigeria Gas Limited (2019) 14 N.W.L.R. part 1692 page 273 at page 308 paragraph A ratio 15, the Supreme Court held that “a consequential order is an order that follows as a result of an earlier order. It may have an indirect or secondary result in the relief awarding process” and that: “A consequential order merely gives effect to a judgement or order to which it is consequential, it is directly traceable to or flow from the judgement or order duly prayed for and made.” Therefore, the forceful take-over of the Local Government Councils and the resultant mayhem and death purportedly relying on the Court of Appeal judgement dated the 10th day of February 2025 amounted to self-help.

Besides, the Nigerian Tribune and The Punch reported that on Friday the 21st day of February 2025, the High Court of Osun State in the Ilesha Judicial Division referred to the judgement of the Federal High Court, Oshogbo, in Action Peoples Party v. Independent Electoral Commission suit No. FHC/CS/OS/103/2022 delivered on the 30th day of November 2022 voiding the Osun State Local Government election held on the 15th day of October 2022 and that of the Court of Appeal in Allied People Movement & ors. v. Action Peoples Party & Ors. Appeal No. CA/AK/226M/2024 delivered on the 13th day of January 2025 which the honourable judge was quoted as confirming the Federal High Court judgement. A decision of a court of competent jurisdiction not appealed against remains valid, subsisting and binding on the parties and it is presumed acceptable by them Nwobike v. Federal Republic of Nigeria (2022) 6 N.W.L.R. part 1826 page 293 at page 352 paragraphs B and C ratio 26. It will amount to self-help for a party to choose which judgement to obey or disobey.

In the Lagos State House of Assembly incident on speakership, the Constitution clearly states how a speaker emerges and how he is removed and it is settled that where the words of a statute are clear and unambiguous, they should be accorded their plain and ordinary grammatical meaning see Register Trustees of Mission House v. All States Trust Bank Plc. (2024) 10 N.W.L.R. part 1947 page 565 at page 600 paragraph H to page 601 paragraphs B and C ratio 6. Unlike the posts of the President, Vice President, Governor and Deputy Governor which are contested for ab initio among candidates of different parties, the principal offices in the legislature are not contested for in the general election. Rather, members of the legislature vest a member with the status of primus inter pares which is a privilege or honour from the members by virtue of section 50(a) of the Constitution in respect of the Senate President or Deputy President, section 50(b) of the Constitution in respect of Speaker and Deputy Speaker of the House of Representatives and section 92(1) of the Constitution as regards the Speaker and Deputy Speaker of the House of Assembly. By the same constitutional provisions, these principal officers could be removed by members of the legislature under sections 50(2)(c) and section 92(2)(c). On the 13th day of January 2025, a total of 36 out of the 40 members were reported to have voted to remove Hon. Mudashiru Obasa from the post of the Speaker of the Lagos State House of Assembly in compliance with section 92(2)(c) of the Constitution. There was a report that the former speaker claimed that a rule of the House existed that voids his removal. It is submitted that by virtue of section 1(3) such rule would be inconsistent with section 92(2)(c) of the Constitution and therefore void to the extent of the inconsistency.

As it is, the Constitution has covered the field regarding the removal of the aforementioned principal officers whether at the National or State level, no other law or rule can derogate from the constitutional provision. The action taken by Obasa on the 27th day of February 2025 by entering the House of Assembly to convene and preside over what was termed a “plenary” with four out of the 40 members of the House of Assembly is in breach of not only section 92(2)(c) but also section 96(1) which provides that the quorum of a House of Assembly shall be one-third of all the members of the House. Mathematically, one-third of the 40 members of the Lagos State House of Assembly is 13 which, because a human being cannot be fractionized, is approximated to 14 members. The action of the former speaker therefore amounts to self-help and complete disregard for the rule of law see Okomu Oil Palm Co. v. Tajudeen (2016) 3 N.W.L.R. part 1499 page 284 at page 324 paragraph G to page 325 paragraph F ratio 17, NBA v. Henkyaa (2016) 11 N.W.L.R. part 1522 page 164 at page 171 paragraph H to page 172 paragraph C ratio 3 and Chicason Group of Companies Limited v. Oteri (2021) 6 N.W.L.R. part 1772 page 222 at page 248 paragraph E ratio 4 where the court held that: The point must be made that self-help cannot be tolerated under any guise in a democratic society which professes to the rule of law. The rule of law must reign for democracy to thrive.

Rotimi Ogunleye is a Lagos based legal practitioner, notary public and arbitrator.

Source: loyalnigerialawyer