The Federal High Court, Abuja Division, coram Omotosho, J. recently delivered judgment in an action challenging the constitutionality of the President’s proclamation of a state of emergency in Rivers State.
Background
The Plaintiffs, who are residents of Rivers State, sought declarations that the President’s proclamation of a state of emergency and the resulting suspension of the Governor, Deputy Governor and members of the House of Assembly were unconstitutional. They further challenged the appointment of a Sole Administrator to govern the State during the pendency of the state of emergency. The Defendants raised objections to the competence of the suit, particularly on the grounds of locus standi and jurisdiction.
Decision of the Federal High Court
Constitutionality of the Declaration of a State of Emergency
On the substantive constitutional questions, the court took the view that a state of emergency connotes a situation where extreme measures must be taken to ensure the return of normalcy. Relying on section 305 of the 1999 Constitution, the Court found that the President acted within his constitutional powers in declaring a state of emergency in Rivers State, given the prevailing circumstances threatening public order and governance in the State.
Validity of the Suspension of Elected Officials
The Court further reasoned that the suspension of the Governor and Members of the House of Assembly did not amount to “removal” from office but rather a temporary holding of their powers “in abeyance” during the subsistence of the emergency. The Court further held that the suspension was a “consequential effect” of the state of emergency proclamation and was properly carried out in line with section 305 of the Constitution of the Federal Republic of Nigeria, 1999 (as altered). The court took the view that the power vacuum created by the suspension of the elected officials in the State necessitated the appointment of a Sole Administrator to ensure continuity of governance and the protection of the welfare of the people of Rivers State, as an extraordinary but necessary step to fill the governance vacuum created by the suspension of elected officials.
Subject Matter Competence
The decision of the court on the substantive constitutional questions was anteceded by issues of jurisdiction with respect to subject matter jurisdiction and locus standi. In its determination of subject matter jurisdiction, the court held that the Emergency Powers (Jurisdiction) Act, 1962 vested exclusive jurisdiction in the Supreme Court to determine questions relating to the validity of emergency proclamations. Since the Plaintiffs’ suit directly challenged the legality of the State of Emergency declared by the President, the Federal High Court lacked subject-matter jurisdiction. The Court stressed that even though the Plaintiffs couched their questions as challenges to suspension of elected officials, the foundation of their claims lay in the proclamation itself. As such, the Supreme Court was the only court which could hear such matters.
Locus Standi
On the question of locus standi, the Court determined that the Plaintiffs, as ordinary residents of Rivers State, did not have the legal capacity to institute the suit. Drawing strength from several decisions of the Supreme Court, the Court found that locus standi required a plaintiff to show a personal and direct injury above that suffered by the general public. The Court emphasized that the right to occupy public office is a personal right and not a public one. Thus, only the suspended Governor, Deputy Governor, or Members of the House of Assembly, or the Rivers State Government itself through its Attorney-General could have instituted such a challenge. Furthermore, relying on the Supreme Court’s decision in Plateau State of Nigeria & Anor v. Attorney-General of the Federation & Anor,[1]the court reasoned that the right to challenge the proclamation or any acts done pursuant to a state of emergency proclamation belongs to the State Government itself, not to private individuals. But crucially, during the subsistence of emergency rule, the State Government is no longer under the control of its elected officials but under the control of the appointed Sole Administrator. Thus, only the Sole Administrator, or someone authorized by him, can validly consent to or institute an action on behalf of the State. The court found that there was no evidence before it to show that the Sole Administrator had consented to the bringing of the suit.
Notably, the Federal High Court reaffirmed this reasoning in two later decisions in Pilex Centre for Civic Education Initiative & Anor. v. The Administrator, Rivers State– Suit No: FHC/PH/CS/46/2025; and The Incorporated Trustees of Rivsbridge Peace Initiative v. President of the Federal Republic of Nigeria & Ors. – Suit No: FHC/PH/CS/43/2015.
Commentary
The judgment is significant in at least two respects. Firstly, it represents a constitutional milestone, being the first time in Nigeria’s judicial history that a court has directly and substantively pronounced on the legality of suspending elected officials during a period of emergency rule. Nigeria has had five previous proclamations of emergency — the Western Region in 1962, Plateau in 2004, Ekiti in 2006, Borno and Plateau in 2011, and Adamawa, Borno and Yobe in 2013 — but in none of these have the courts directly addressed this question. In this case, the Federal High Court, while ultimately declining jurisdiction to adjudicate on the core constitutional challenge, in line with settled law that intermediate courts ought to resolve the merits question even when they decline jurisdiction, endorsed the suspension of the Governor, Deputy Governor, or Members of the House of Assembly, as well as the subsequent appointment of a Sole Administrator, as wholly constitutional and within the President’s powers under Section 305 of the Constitution and the Emergency Powers Act, 1961.
We respectfully align with the views expressed by the Court on this highly important constitutional question. In our view, the judgment demonstrates a pragmatic balance between constitutionalism and executive responsibility in times of crisis. Consistent with the developments in other constitutional democracies, it is crucial to state that the scope and details of the President’s powers during a state of emergency cannot be confined within rigid or linear boundaries. The actions taken must be reasonably weighed against the triggers and circumstances necessitating the proclamation. Thus, where the conduct, omissions, or political stalemate caused by state actors and elected officials in a State directly precipitate constitutional breakdown or threat to national stability, proportionate emergency measures may justifiably include the temporary removal or suspension of the very actors or officials whose continued presence in office constitutes an impediment to the restoration of lawful governance. Such measures are legitimate and necessary in a constitutional democracy to restore governance, public order, security, and the effective functioning of the constitutional institutions of the State.
Second, the decision reaffirms the constitutional principle that only the Supreme Court of Nigeria possesses original jurisdiction to adjudicate upon the validity of a proclamation of a state of emergency or any matter directly arising therefrom. The original jurisdiction of the Supreme Court is not limited to section 232(1) of the Constitution which is concerned with disputes between the Federation and a State or between States. Section 232(1) recognises that additional original jurisdiction can be conferred on the Supreme Court by a statute validly passed by the National Assembly. The Emergency Powers Act, 1961, being an existing law within the meaning of Section 315 of the Constitution, is deemed to take effect as an Act of the National Assembly to the extent that it deals with matters upon which the National Assembly has legislative competence. Thus, being an Act of the National Assembly, its provisions are constitutionally taken to expand the original jurisdiction of the Supreme Court to include the review and interpretation of emergency proclamations, and all acts done pursuant thereto.
This case therefore represents a watershed moment in the Nigerian jurisprudence. It also represents a maturing of Nigeria’s constitutional order, where emergency powers are judicially understood as a lawful instrument for the preservation of the constitutional state itself.
Olaniwun Ajayi LP is proud to have led the team of counsel representing the President and Attorney General of the Federation in this landmark case as well as in the later cases decided by the Federal High Court.
[1] [2006] LPELR-2921 (SC).