Supreme Court Judgement on Emergency Rule: My Takeaways

The Advocate

By Onikepo Braithwaite

Onikepo.braithwaite@thisdaylive.com

Introduction

In considering my major takeaways from the recent Supreme Court judgement in AG, Adamawa State & 10 Ors v AGF & Anor SC/CV/329/2025 Judgement delivered on 15/12/2025 Majority Judgement delivered by Mohammed Baba Idris, JSC, on state of emergency, I start by examining what a Constitution is. A Constitution is a foundational document that sets out broad principles, fundamental human rights and the legal structure upon which an organisation or a country must rest upon. See the definition of Constitution as stated in FCDA v Ezinkwo (2007) LPELR-9015 (CA) per Mary Ukaego Peter-Odili, JCA (as she then was); Bakkat v FRN (2013) LPELR-22817(CA) per Oyebisi Folayemi Omoleye, JCA. The Constitution is a document that is expected to stand the test of time, and sometimes, because its provisions are not always conclusive or may appear somewhat flexible, thereby giving rise to ambiguity, the courts are then called upon to make the necessary clarifications.

Strict School of Thought

There appears to be a strict school of thought that believes that, for the most part, the Constitution must only be interpreted, as much as possible, literally, and any other form of interpretation or qualification may be an addition which can only be made through constitutional amendment, as it is trite that the Constitution can only be amended by means of a constitutional amendment, and nothing else. See Section 9 of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution). And, sometimes, interpretation/execution of the provisions of the Constitution is what then leads to controversy, particularly when such interpretation is considered to be an addition.

For example, last week, Stephen Kola-Balogun (SKB) was of the view that the Supreme Court decision in Monsuru Solola & Anor v State (2005) LPELR-3101(SC) per Dennis Onyejife Edozie, JSC, in which the Supreme Court held inter alia that, the prerogative of mercy in Sections 175 & 212 of the Constitution shouldn’t be exercised while an appeal is pending, was a qualification/addition which required constitutional amendment. I must confess that I have also felt the same way as SKB in certain circumstances, such as that of inconclusive elections. Even though I had admitted that the rationale behind the declaration of inconclusive elections may be sound, if people who have a right to vote, are, for one reason or the other, disenfranchised, and the number of those who haven’t voted is enough to change the outcome of the results declared, I had argued that since Section 179(2)(a) of the Constitution had clearly provided for the threshold that must be met for a Gubernatorial candidate to be declared the winner of an election, then the said Section 179(2)(a) of the Constitution should be strictly adhered to when a candidate meets this threshold, like Governor Adeleke did in the 2018 Osun election (but wasn’t declared the winner), until the Constitution is amended to include inconclusive elections which I considered to be an addition. However, the Supreme Court in Hon. James Abiodun Faleke v INEC & Anor [2016] NGSC 83, appeared to have lent its support to INEC being able to declare elections inconclusive in certain circumstances, and this appears to be the practice that is now followed, when the need arises.

The Constitution cannot contemplate every situation, and in the case of inconclusive elections, the makers of the Constitution may not have envisaged a situation such as this, that would lead to the declaration of an election as inconclusive. But, as this situation presented itself on a few occasions – see Hon. James Abiodun Faleke v INEC & Anor (Supra); Senator Nurudeen Ademola Adeleke & Anor v Adegboyega Isiaka Oyetola & Ors (2020) 6 N.W.L.R. Part 1721, the Supreme Court as a Policy Court, appears to have stepped in to fill the gap.

There cannot be constitutional amendments for every single issue that arises, or that the Apex Court makes pronouncements upon. The Constitution remains thr framework, and the role of the Supreme Court when called upon, is to define, interpret or give meaning to constitutional provisions, and its pronouncements in this regard, are final and binding. If the Supreme Court wasn’t meant to make pronouncements that give life to constitutional provisions, why were Nigerians eagerly waiting to hear what the Apex Court had to say on the state of emergency? Furthermore, it is impossible for a Constitution to envisage every possible circumstance that can occur and provide for it, particularly as society and life do not remain static, and are in constant evolution. Therefore, there are laws, which mustn’t be inconsistent with the provisions of the Constitution (see Section 1(1) & (3) of the Constitution ), and judicial interpretation, which may be used to fill such gaps, particularly as the Constitution is not always self-executory in some of its provisions.

State of Emergency

1) Reasons for Proclamation

Aside from the Faleke, Adeleke and Solola cases cited above, another situation which is not expressly mentioned in the Constitution, occurred again and was brought to the Apex Court for resolution – the circumstances surrounding the proclamation of the state of emergency in Rivers State, and what constitutes ‘extraordinary measures’. The recent judgement in AG, Adamawa State & 10 Ors v AGF & Anor (Supra), has revved up this debate once again, since the President declared a state of emergency in Rivers State in March 2025, and suspended the Governor, Deputy Governor and House of Assembly Members for a period of six months which elapsed in September 2025.

The burning question as to whether the President has powers to suspend elected (State) officials, has been begging to be answered.

Even though in AG, Adamawa State & 10 Ors v AGF & Anor (Supra), the Apex Court found that it had no jurisdiction to entertain the matter, as the claim didn’t reveal a cause of action that falls within the purview of Section 232(1) of the Constitution which ignites the original jurisdiction of the Supreme Court in disputes between a State or States and the Federation, or between States, seeing as the subject-matter of the case is so important as we were in dire need of resolution on issues to do with state of emergency, the Apex Court went on to make some pronouncements in this regard.

Firstly, the strict school of thought argues that the grounds for the declaration of a state of emergency are expressly stated in Section 305(3)(a)-(f) of the Constitution, and therefore, any such proclamation must be restricted to the presence of any of the conditions stated therein, to be ignited. But, aside from some of the usual conditions which President Tinubu listed as grounds for the proclamation, such as the vandalisation of oil installations in Rivers State which could have affected Nigeria’s already shaky revenue, seeing as oil is the mainstay of the economy, the Supreme Court appears to have recognised another condition which it mentioned in an earlier decision in February 2025 – that Rivers State didn’t have a functioning government.

It appears that the Constitution may not have contemplated a situation in which two arms of government, the Executive and Legislature, which are crucial to the effective running of any democratic government, would be so much at loggerheads, leading to governance in the State ending up being at a standstill. I had said at the time the proclamation was made, that Governor Fubara and the Rivers House of Assembly (RSHA) had failed to work together, and instead, the Governor was accused of burning down the RSHA to stop the members from instituting removal proceedings against him, while he purported to govern the State with a ‘Lilliputian’ Legislature comprised of only three members, far from the quorum required by the Constitution.

The Apex Court appeared to have considered a dispute between a State Executive and Legislature, resulting not only in the destruction of the symbol and seat of the Legislature, but in the lack of a functioning government, as a condition that meets the Section 305(3) threshold for the declaration of a state of emergency, requiring extraordinary measures to set things back on course. Some Lawyers however, saw this decision as turning the law on its head. Others saw it as a development that captured the statement, “law is dynamic”, where lawmaking and judicial interpretation must evolve to address emerging/new issues, instead of being stuck in a time warp. And, that the depth of the Rivers State Executive/Legislative crisis, could just be an emerging issue, not previously contemplated by the makers of the Constitution.

2) Extraordinary Measures

The second matter that arose, is the extent of ‘extraordinary measures’ that can be taken by the President to resolve a situation in which two crucial arms of government (as in the Rivers situation), are at war. It is not unreasonable to expect that whatever measures are taken must be constitutional, though the definition of extraordinary is unusual; synonyms are astonishing, exceptional, even odd.

Section 305(1), is subject to the other provisions of the Constitution. This means that it is governed or controlled, by the other provisions of the Constitution. See the case of Labiyi v Anretiola 1992 8 N.W.L.R. Part 258 Page 139 at 164 per Godwin Adolphus Karibi-Whyte, JSC. No provision therein, permits the President to suspend a Governor or Legislators. In Section 188, the Constitution provides for the removal of a Governor by only the State House of Assembly, and not suspension, while Section 110 thereof provides for the recall of State Legislators. Interestingly, even though Section 11(4) of the Constitution contemplates a situation in which a House of Assembly cannot function as a result of the situation in the State, and the National Assembly (NASS) taking up the role of such State Assembly in the interim. NASS, in performing a State Assembly’s role, is prohibited from removing a Governor.

From the foregoing, one can conclude that the Constitution doesn’t contemplate the President being able to suspend a Governor or House of Assembly members. And this, the Apex Court stated clearly in the majority judgement, that Section 305 of the Constitution doesn’t expressly confer the President with power “to assume or temporarily displace the executive or legislative institutions of a State”. This position was copiously stated, in the judgement. So, was the suspension an extraordinary measure?

The Supreme Court held that the Constitution is silent on the ‘extraordinary measures’ that may follow the proclamation of a state of emergency, and that it is this silence, that the Apex Court decided gives the President the discretion to determine what measures may be required to restore a State to normalcy. It appears that the majority decision is saying that, where two crucial arms of government have differences which affect effective governance in the State, both being the cause of the problem, perhaps, may even be the cause of violence in a State, the extraordinary measure required would be to have both arms step aside temporarily until normalcy is restored, seeing as they are the root cause of the problem, notwithstanding that this isn’t specifically stated in the Constitution.

Conclusion

While sceptics do not agree with the Supreme Court’s decision in AG, Adamawa State & 10 Ors v AGF & Anor (Supra), particularly the members of the Strict School of Thought, who believe that the majority decision simply panders to the whims and caprices of the President and other vested interests, others argue that the suspension was a practical resolution to a problem that had festered, that is, a temporary solution to the ‘two fighting’ situation between the Rivers Executive and Legislature.

With all due respect, I’m not sure that I subscribe to the suspension of elected officials; it is a measure that is too extraordinary in my view, and falls outside the purview of the Constitution. Having an Administrator work side by side the Governor, and Senate or House members, side by side with RSHA, would have been a better option. The Supreme Court cited Section 352-360 of the Indian Constitution, which, for instance, expressly allows the President to assume the executive governance of State, where governance has failed. This isn’t the case, in the Nigerian Constitution.

Thankfully, however, the Apex Court stated that one size doesn’t fit all, and each situation must be taken on its peculiar facts, citing the measures taken during the earlier Plateau and Ekiti emergencies, which were different from those taken in the latter Borno, Adamawa and Yobe emergencies.