Socio-Economic Rights and Accountability Project (SERAP) has filed a lawsuit against President Muhammadu Buhari “over his failure to probe allegations that N106bn of public funds are missing from 149 ministries, departments and agencies (MDAs), and to ensure the prosecution of those suspected to be responsible, and the recovery of any missing public funds.”
The suit followed the grim allegations by the Office of the Auditor-General of the Federation in his 2018 annual audited report that N105,662,350,077.46 of public funds are missing, misappropriated or unaccounted for across 149 MDAs.
In the suit number FHC/ABJ/CS/903/2021 filed last week at the Federal High Court in Abuja, SERAP is seeking: “an order of mandamus to direct and compel President Buhari to promptly investigate the alleged missing N106bn of public funds, ensure prosecution of anyone suspected to be responsible, and the full recovery of any missing public money.”
In the suit, SERAP is arguing that: “Recovering the alleged missing public funds would reduce the pressure on the Federal Government to borrow more money to fund the budget, enable the authorities to meet the country’s constitutional and international obligations, and reduce the growing level of public debts.”
According to SERAP: “Directing and compelling President Buhari to ensure the investigation and prosecution of the alleged grand corruption documented by the Auditor-General would be entirely consistent with the government’s own commitment to fight corruption, improve the integrity of MDAs, and serve the public interest.”
SERAP is also arguing that, “The alleged missing public funds have hampered the ability of the indicted MDAs to meet the needs of average citizens, as the missing funds could have helped the government to invest in key public goods and services, and to improve access of Nigerians to these goods and services.”
Joined in the suit as Respondents are Mr Abubakar Malami, SAN, Minister of Justice and Attorney General of the Federation; and Mrs Zainab Ahmed, Minister of Finance, Budget and National Planning.
SERAP is arguing that, “It is in the interest of justice to grant this application, as it would improve respect for the rights of Nigerians, and improve their access to essential public goods and services. The suit is in keeping with the requirements of the Nigerian Constitution 1999 [as amended]; anti-corruption legislation, and the country’s international obligations including under the UN Convention against Corruption; and the African Union Convention on Preventing and Combating Corruption to which Nigeria is a state party.”
SERAP is also seeking an order to compel the president “to publish full details of the yearly budgets of all MDAs, and issue regular updates that detail their expenditures, including by making any such information easily accessible in a form that can be understood by the public.”
The suit filed on behalf of SERAP by its lawyers Kolawole Oluwadare and Ms Joke Fekumo, read in part: “The failure to investigate the allegations of grand corruption in the 2018 annual audited report constitutes a grave violation of the duty placed on the Nigerian government to take appropriate measures to promote transparency and accountability in the management of public finances.”
“President Buhari’s constitutional responsibility to ensure the investigation and prosecution of allegations of corruption, as well as recovery of any missing public funds is contained in Section 15[5] of the Nigerian Constitution, which provides that ‘the State shall abolish all corrupt practices and abuse of power’, and in the Oath of Office in the Seventh Schedule of the Constitution.”
“The Oath of Office of the President is considered of such importance that section 140 of the 1999 Constitution provides that the President cannot perform his or her respective official functions as President without taking the oath of office.”
No date has been fixed for the hearing of the suit.
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IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
SUIT NO: FHC/ABJ/CS/903/2021
BETWEEN
THE INCORPORATED TRUSTEES OF
THE SOCIO-ECONOMIC RIGHTS APPLICANT
AND ACCOUNTABILITY PROJECT [SERAP]
AND
- THE PRESIDENT, FEDERAL REPUBLIC OF NIGERIA
- ATTORNEY-GENERAL OF THE FEDERATION RESPONDENTS
- MINISTER OF FINANCE, BUDGET AND NATIONAL PLANNING
MOTION EX-PARTE
BROUGHT PURSUANT TO ORDER 34 RULES 1(1)(A)&(B); 2; 3 (1) (2)(A)(B)(C) OF THE FEDERAL HIGH COURT (CIVIL PROCEDURE) RULES 2019 AND UNDER THE INHERENT JURISDICTION OF THE HONOURABLE COURT
TAKE NOTICE that this Honourable Court will be moved on the ______ day of ____________ 2021 or so soon thereafter as Counsel may be heard on behalf of the Applicant seeking for the following orders:
- AN ORDER granting leave to the Applicant to apply for judicial review to enable the Applicant seek an order of mandamus directing and compelling the 1st Respondent to direct the Attorney General of the Federation and Minister of Justice and appropriate anti-corruption agencies to:
a. Investigate allegations that One Hundred and Six Hundred Billion Naira of public funds are missing, mismanaged, diverted or stolen as documented in the 2018 Audit Report by the Office of the Auditor-General of the Federation.
b. Prosecute anyone suspected to be responsible for the mismanagement and diversion as appropriate, if there is admissible evidence and to recover any such missing public funds.
- AN ORDER granting leave to the Applicant to apply for judicial review to enable the Applicant seek an order of mandamus directing and compelling the 1st Respondent to direct the Minister of Finance, Budget and National Planning to:
a. Create a system to name and shame the 149 ministries, departments and Agencies (MDAs) indicted in the 2018 Audited report, including those that reportedly failed to remit over N55 billion of their revenue to the Federal Government, awarded contract of over N18billion for services not rendered; and spent over N23billion without any supporting documents.
b.Publish full details of the yearly budgets of all MDAs, and issue regular updates that regularly detail their expenditures, including by making any such information easily accessible in a form that can be understood by the public.
c. Explain why the MDAs allegedly failed to ensure strict compliance with relevant legislation, rules and regulations across all MDAs, despite the warning and recommendation by the Auditor-General.
AND for such further order[s] the Honourable Court may deem fit to make in the circumstances.
Dated this _______ day of ______________ 2021
___________________
Olúwádàre A. Kóláwolé
Joke Victoria Fekumo
Applicant’s Counsel
C/o 18, Bamako Street
Wuse Zone1,
FCT Abuja
Tel : 08160537202
Email: info@serap-nigeria.org
IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
SUIT NO: FHC/ABJ/CS/903/2021
BETWEEN
THE INCORPORATED TRUSTEES OF
THE SOCIO-ECONOMIC RIGHTS APPLICANT
AND ACCOUNTABILITY PROJECT [SERAP]
AND
1. THE PRESIDENT, FEDERAL REPUBLIC OF NIGERIA
2. ATTORNEY-GENERAL OF THE FEDERATION RESPONDENTS
3. MINISTER OF FINANCE, BUDGET AND NATIONAL PLANNING
AFFIDAVIT IN SUPPORT OF MOTION EX-PARTE
I, JOEL EKONG, Male, Christian and Nigerian of 18, Bamako Street, Wuse Zone 1, Abuja, FCT, do hereby make oath and state as follows:
- That I am the Litigation Administrator at the Socio-Economic Rights and Accountability Project [SERAP], the Applicant in this suit.
- That I have the consent and authority of the Applicant to depose to this affidavit.
- That by virtue of my relationship with the Applicant, I am conversant with the facts of this case and with the facts deposed.
- That all facts deposed herein are from my personal knowledge except as may be otherwise expressly stated.
- That the Applicant is a registered non-governmental and civil society organization established in Nigeria with the mandate to promote human rights, transparency, accountability and anti-corruption in Nigeria. A certified true copy of the certificate of incorporation of the Applicant is attached and annexed as Exhibit SP1.
- That the Applicant’s goals and objectives are aimed towards transparency, accountability and promotion of human rights in Nigeria.
- That the 1st Respondent is the President of the Federal Republic of Nigeria, Chief Executive Officer of the Federation and the Commander-in-Chief of the Armed Forces of the Federation. The 2nd Respondent is the Attorney General of the Federation, Minister of Justice of the Federation and the Chief Law Officer of the Federation. The 3rd Respondent is the Minister in charge of the finance portfolio, compiling the budget of the Federation and advising the Federal Government on its fiscal policies.
- That I was informed by Mrs. Joke Victoria Fekumo, counsel to the Applicant on Thursday, 12th August, 2021 at No. 18, Bamako Street, Wuse Zone 1, during a meeting in our office.
- That in the pursuit of its mandate which is geared towards transparency and accountability in governance and public service, the Applicant wrote a letter dated 17th April, 2021 to the 1st Respondent, copying the 2nd and 3rd Respondents, wherein the Applicant requested that the 1st Respondent in furtherance of his powers as Chief Executive Officer of the Federation do the following:
- To direct the Attorney General of the Federation and Minister of Justice and appropriate anti-corruption agencies to investigate allegations that N106 billions of public funds are missing, mismanaged, diverted or stolen as documented in the 2018 Audit Report by the Office of the Auditor-General of the Federation.
- To direct the Minister of Finance, Budget and National Planning to create a system to name and shame the 149 ministries, departments and Agencies (MDAs) indicted in the 2018 Audited report, including those that reportedly failed to remit over N55billion of their revenue to the Federal Government, awarded contract of over N18billion for services not rendered; and spent over N23billion without any supporting documents.
- To direct the Minister of Finance, Budget and National Planning to publish full details of the yearly budgets of all MDAs, and issue regular updates that regularly detail their expenditures, including by making any such information easily accessible in a form that can be understood by the public.
- To direct the Minister of Finance, Budget and National Planning and the Accountant General of the Federation to explain why the MDAs allegedly failed to ensure strict compliance with relevant legislation, rules and regulations across all MDAs, despite the warning and recommendation by the Auditor-General.
- That the Applicant requested the 1st Respondent to carry out his constitutional duties contained in the Applicant’s letter within 14 days of the receipt and/or publication of the said letter. A copy of the Applicant’s letter dated 17th April, 2021 sent to the 1st and 2nd Respondents by the Applicant is attached and marked as Exhibit SP2.
- That the Applicant’s letter dated 17th April, 2021 was dispatched by United Parcel Service [UPS] to all the Respondents. Copies of the UPS Waybill with Numbers W5232330612, W5232330550, and W5232330587 used to dispatch the Applicant’s letter dated 17th April, 2021 to the 1st, 2nd and 3rd Respondents are attached and marked as Exhibits SP3, SP4 and SP5 respectively.
- The Applicant’s letter dated 17th April, 2021 was delivered by United Parcel Service [UPS] to all the Respondents on 26 April, 2021. Print-out copies of the UPS proof of delivery of the letters on the 1st, 2nd and 3nd Respondents are attached and marked as Exhibits SP6, SP7 and SP8 respectively.
- That since the receipt of the letters by the Respondents and up till the filing of this suit, the 1st Respondent has failed and neglected to perform the specific acts he is obligated to perform and which the Applicant so requested of him.
- That the 1st Respondent has an obligation to promptly direct the investigation of the allegations of mismanagement, diversion and stealing of public funds contained in the 2018 Audit Report by the Auditor General of the Federation, and those suspected to be responsible brought to justice in accordance with Nigeria’s anti-corruption legislation.
- That this innocuous application is seeking leave to enable the Applicant apply to the court for an order of mandamus compelling the 1st Respondent to direct the investigation of the allegations of mismanagement, diversion and stealing of public funds contained in the 2018 Audit Report by the Auditor General of the Federation.
- That the 2018 Audit Report by the Auditor-General of the Federation exposes allegations of mismanagement and diversion of public funds. A printed copy of the Auditor General of the Federation’s 2018 Annual Audit Report downloaded from https://www.oaugf.ng>14-annual-report-2018>file is attached as Exhibit SP9.
- The Dell computers and HP Laserjet 400 M401 PCL 6 printer used to download, store and print the Exhibit SP9 are used to carry-out our daily computer processing work including storing, processing information, printing and other electronic typesetting needs at our office at 18 Bamako Street, Abuja and when the printouts were made, they were made during the period when the Dell computers and HP Laserjet 400 M401 PCL 6 printer served our daily computer processing needs and they worked optimally and efficiently.
- That the Nigeria Government has signed on to the Open Government Partnership [OGP], United Nations Convention on Anti-Corruption [UNCAC], African Union Convention on Preventing and Combating Corruption in Africa and the African Charter on Human and Peoples’ Rights and has in fact domesticated the African Charter as part of Nigeria’s domestic laws.
- That this suit is of major public interest as it bothers on issues of national interest, social justice, good governance, transparency and accountability.
- That I believe that it is in the interest of justice for the Applicant’s reliefs to be granted.
- That I make this declaration in good faith, believing its content to be true to the best of my knowledge and in accordance with the Oaths Act.
_________________
DEPONENT
Sworn to at the Federal High Court Registry, Abuja
This _____ day _________________ 2021
BEFORE ME
COMMISSIONER FOR OATH
IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
SUIT NO: FHC/ABJ/CS/903/2021
BETWEEN
THE INCORPORATED TRUSTEES OF
THE SOCIO-ECONOMIC RIGHTS APPLICANT
AND ACCOUNTABILITY PROJECT [SERAP]
AND
- THE PRESIDENT, FEDERAL REPUBLIC OF NIGERIA
- ATTORNEY-GENERAL OF THE FEDERATION RESPONDENTS
- MINISTER OF FINANCE, BUDGET AND NATIONAL PLANNING
STATEMENT PURSUANT TO ORDER 34 RULE 3(2) (A)
OF THE FEDERAL HIGH COURT (CIVIL PROCEDURE) RULES 2019
- NAME OF THE APPLICANT
The Applicant is a registered non-governmental and civil society organization established in Nigeria with the mandate to promote human rights, transparency, accountability and anti-corruption in Nigeria.
- RELIEFS SOUGHT BY THE APPLICANT
1.AN ORDER granting leave to the Applicant to apply for judicial review to enable the Applicant seek an order of mandamus directing and compelling the 1st Respondent to direct the Attorney General of the Federation and Minister of Justice and appropriate anti-corruption agencies to:
a. Investigate allegations that N106 billions of public funds are missing, mismanaged, diverted or stolen as documented in the 2018 Audit Report by the Office of the Auditor-General of the Federation.
b. Prosecute anyone suspected to be responsible for the mismanagement and diversion as appropriate, if there is admissible evidence and to recover any such missing public funds.
2.AN ORDER granting leave to the Applicant to apply for judicial review to enable the Applicant seek an order of mandamus directing and compelling the 1st Respondent to direct the Minister of Finance, Budget and National Planning to:
a. Create a system to name and shame the 149 ministries, departments and Agencies (MDAs) indicted in the 2018 Audited report, including those that reportedly failed to remit over N55 billion of their revenue to the Federal Government, awarded contract of over N18billion for services not rendered; and spent over N23billion without any supporting documents.
b. Publish full details of the yearly budgets of all MDAs, and issue regular updates that regularly detail their expenditures, including by making any such information easily accessible in a form that can be understood by the public.
c. Explain why the MDAs allegedly failed to ensure strict compliance with relevant legislation, rules and regulations across all MDAs, despite the warning and recommendation by the Auditor-General.
AND for such further order[s] the Honourable Court may deem fit to make in the circumstances.
- GROUNDS FOR SEEKING RELIEFS
- The 1st Respondent is constitutionally empowered to direct the Attorney General of the Federation/Minister of Justice and relevant anti-corruption agencies to investigate allegations of mismanagement, diversion and stealing of the sum of N106 billion public funds contained in the 2018 Audit Report, and those suspected to be responsible brought to justice.
- The Nigeria Government has signed on to the Open Government Partnership [OGP], United Nations Convention on Anti-Corruption [UNCAC], African Union Convention on Preventing and Combating Corruption in Africa and the African Charter on Human and Peoples’ Rights and has also domesticated the African Charter as part of Nigeria’s domestic laws.
- In the pursuit of its mandate, the Applicant wrote a letter dated 17th April, to the 1st Respondent, copying the 2nd and 3rd Respondents wherein the Applicant requested that the 1st Respondent in furtherance of his powers as Chief Executive Officer of the Federation investigate allegations of mismanagement, diversion and stealing of public funds contained in the 2018 Audit Report by the Auditor General of the Federation, and those suspected to be responsible brought to justice.
- However, since the receipt of the letters by the Respondents and up till the filing of this suit, the 1st Respondent has failed and neglected to perform the specific acts he is obligated to perform under the law and which the Applicant so requested of him.
- By the provision of Order 34 Rules 1 [1] [A] & [B]; 2; 3[1] [2][A][B][C] of the Federal High Court [Civil Procedure] Rules 2019, the Applicant is entitled to apply to this Honourable Court for a review of the actions and inactions of the 1st Respondent.
- Except the reliefs sought by the Applicant are obliged, the 1st Respondent will continue to refuse to act on the Applicant’s requests to ensure those suspected to be responsible for financial misappropriations as contained in the 2018 Audit Report are held accountable.
Dated this _______ day of ______________ 2021
___________________
Olúwádàre A. Kóláwolé
Joke Victoria Fekumo
Applicant’s Counsel
C/o 18, Bamako Street
Wuse Zone1,
FCT Abuja
Tel : 08160537202
Email: info@serap-nigeria.org
IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
SUIT NO: FHC/ABJ/CS/903/2021
BETWEEN
THE INCORPORATED TRUSTEES OF
THE SOCIO-ECONOMIC RIGHTS APPLICANT
AND ACCOUNTABILITY PROJECT [SERAP]
AND
- THE PRESIDENT, FEDERAL REPUBLIC OF NIGERIA
- ATTORNEY-GENERAL OF THE FEDERATION REPONDENTS
- MINISTER OF FINANCE, BUDGET AND NATIONAL PLANNING
VERIFYING AFFIDAVIT OF THE APPLICANT
PURSUANT TO ORDER 34 RULE 3 [2] [B] OF THE FEDERAL HIGH COURT [CIVIL PROCEDURE] RULES 2019
I, JOEL EKONG, Male, Christian and Nigerian of 18, Bamako Street, Wuse Zone 1, Abuja, FCT, do hereby make oath and state as follows:
- That I am the Litigation Administrator at the Socio-Economic Rights and Accountability Project [SERAP], the Applicant in this suit.
- That I have the consent and authority of the Applicant to depose to this affidavit.
- That by virtue of my relationship with the Applicant, I am conversant with the facts of this case and with the facts deposed.
- That all facts deposed herein are from my personal knowledge except as may be otherwise expressly stated.
- That the facts contained in the Statement attached to this application are true to the best of my knowledge.
- That I verify all the facts contained in the Statement as true.
7. That I make this Affidavit in good faith conscientiously believing its contents to be true and in accordance with the Oaths Act.
__________________
DEPONENT
Sworn to at the Federal High Court Registry, Abuja
This _________ day of ________________ 2021
BEFORE ME
COMMISSIONER FOR OATHS
IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
SUIT NO: FHC/ABJ/CS/903/2021
BETWEEN
THE INCORPORATED TRUSTEES OF
THE SOCIO-ECONOMIC RIGHTS APPLICANT
AND ACCOUNTABILITY PROJECT [SERAP]
AND
- THE PRESIDENT, FEDERAL REPUBLIC OF NIGERIA
- ATTORNEY-GENERAL OF THE FEDERATION REPONDENTS
- MINISTER OF FINANCE, BUDGET AND NATIONAL PLANNING
APPLICANT’S WRITTEN ADDRESS IN SUPPORT OF MOTION EX-PARTE
- INTRODUCTION
1.1 The Applicant is a registered non-governmental and civil society organization established in Nigeria with the mandate to promote human rights, transparency, accountability and anti-corruption in Nigeria.
1.2 The Motion ex-parte is seeking leave of the court to enable the Applicant seek judicial review and order of Mandamus compelling the 1st Respondent to carry out the acts contained in the statement in support of the Application.
1.3 In the pursuit of its mandate, the Applicant wrote a letter dated 17th April, 2021 to the 1st Respondent, copying the 2nd Respondent, requesting the 1st Respondent to do the following:
1.AN ORDER granting leave to the Applicant to apply for judicial review to enable the Applicant seek an order of mandamus directing and compelling the 1st Respondent to direct the Attorney General of the Federation and Minister of Justice and appropriate anti-corruption agencies to:
a. Investigate allegations that N106 billions of public funds are missing, mismanaged, diverted or stolen as documented in the 2018 Audit Report by the Office of the Auditor-General of the Federation.
b. Prosecute anyone suspected to be responsible for the mismanagement and diversion as appropriate, if there is admissible evidence and to recover any such missing public funds.
2.AN ORDER granting leave to the Applicant to apply for judicial review to enable the Applicant seek an order of mandamus directing and compelling the 1st Respondent to direct the Minister of Finance, Budget and National Planning to:
a. Create a system to name and shame the 149 ministries, departments and Agencies (MDAs) indicted in the 2018 Audited report, including those that reportedly failed to remit over N55 billion of their revenue to the Federal Government, awarded contract of over N18billion for services not rendered; and spent over N23billion without any supporting documents.
b. Publish full details of the yearly budgets of all MDAs, and issue regular updates that regularly detail their expenditures, including by making any such information easily accessible in a form that can be understood by the public.
c. Explain why the MDAs allegedly failed to ensure strict compliance with relevant legislation, rules and regulations across all MDAs, despite the warning and recommendation by the Auditor-General.
1.4 However, since the receipt of the letters by the Respondents and up till the filing of this suit, the 1st Respondent has failed and neglected to carry out the specific acts he is obligated to perform by virtue of his constitutional mandate, which the Applicant so requested of him.
1.5 This Written Address is in support of the application for leave. The background facts are set out in the Affidavit in support deposed to by a certain JOEL EKONG together with the exhibits attached. The application is supported by a Statement setting out the name and description of the Applicant, reliefs sought and the grounds on which they are sought; and a Verifying Affidavit verifying the facts in the Statement of the Applicant.
2.0 ISSUE FOR DETERMINATION
2.1 My Lord, the sole issue for determination in this application is:
“Whether this Honourable Court ought to grant leave for the Applicant to seek Judicial Review and an order of Mandamus, having regard to the law and factual circumstances of this case.”
3.0 LEGAL ARGUMENT
3.1 With the utmost respect to Your Lordship, the Applicant has brought this ex-parte application, seeking leave of this Honourable Court to apply for the judicial relief stated, pursuant to Order 34 Rule 3[1]of the Federal High Court [Civil Procedure] Rules 2019, which provides:
“No application for judicial review shall be made unless the leave of Court has been obtained in accordance with this rule.”
3.2 In compliance with the provisions of Order 34 Rule 3[2][a][b][c] of the Federal High Court [Civil Procedure] Rules 2019, the Applicant has attached all accompanying documents, which are follows: Statement setting out the name and description of the applicant, the reliefs sought and the grounds on which they are sought; and an affidavit verifying the facts relied upon.
3.3 Regarding the order of mandamus, it was held in the case of Fawehinmi v. I.G.P. (2002) 7 NWLR (part 767) 606, pg. 674 para. D per Uwaifo, JSC. as follows:
“Mandamus is a high prerogative writ which lies to secure the performance of a public duty, in the performance of which the applicant therefore has sufficient legal interest. It gives a command that a duty or function of a public nature, which normally, though not necessarily, is imposed by statute but is neglected or refused to be done after due demand be done…”
3.4 Consequently, it was held in the case of Jauro & Ors v. Hon. Commissioner, Ministry of Land & Survey, Adamawa State, (2013) LPELR-20849 (CA), per Abba, J.C.A. (page 9, paras. B – C) as follows:
“Mandamus is simply an order issued by a court of law, usually the High Court is urged to compel the performance of a public duty in which the person applying for same has sufficient legal interest…”
3.5 The Applicant has stated in the affidavit in support of this application that the Applicant’s letter to the Respondents dated 17th April, 2021w was sent via United Parcel Service [UPS] to the Respondents, and as duly delivered. What more, proof of service of the Applicant’s letter have been attached as Exhibits SP6, SP7 and SP8.
- The 1st Respondent who is the Chief Executive Officer of the Federation refused to oblige the Applicant’s requests. This is in view of the provision of the Constitution of the Federal Republic of Nigeria, 1999 [as amended]which providesat section 130(1) & (2) as follows:
“There shall be for the Federation a President. The President shall be the Head of State, the Chief Executive of the Federation and Commander-in-Chief of the Armed Forces of the Federation”
In addition, section 5(1) (a) & (b) of the 1999 Constitution provides as follows:
“1. Subject to the provisions of this Constitution, the executive powers of the Federation:
a. shall be vested in the President and may, subject as aforesaid and to
the provisions of any law made by the National Assembly, be exercised
by him either directly or through the Vice-President and Ministers of
the Government of the Federation or officers in the public service of
the Federation; and
b. shall extend to the execution and maintenance of this Constitution, all
laws made by the National Assembly and to all matters with respect to
which the National Assembly has, for the time being, power to make
laws”
- It is therefore clear that the 1st Respondent has a duty to abolish corruption through setting in motion a government agency or a minister charged with such responsibility to investigate allegations of corruption and take necessary steps in respect thereof. This is consonance with the provision of section 15(5) of the 1999 Constitution which provides thus:
“The State shall abolish all corrupt practices and abuse of power”
3.8 Meanwhile, the 2nd and 3rd Respondents are ministers appointed by the 1st Respondent to assist him in performing his official obligation. This is in fulfilment of provision of section 148(1) of the 1999 Constitution, which provides as follows:
“The President may, in his discretion, assign to the Vice-President or any
Minister of the Government of the Federation responsibility for any
business of the Government of the Federation, including the administration
of any department of government.”
3.9 It is the Applicant’s submission therefore that the failure of the 1st Respondent to perform his statutory duties as required under the Constitution amounts to breach of the Constitution.
Furthermore, Nigeria is also under the international mandate to act accordingly to prevent corruption and abuse of office pursuant to its ratification of the UN Convention against Corruption and the International Covenant on Economic, Social and Cultural Rights.
3.10 As for this application, the Applicant is within the three months stipulated by Order 34 Rule 4 of the Federal High Court [Civil Procedure] Rules 2019 for the Applicant to bring this application, taking into consideration the April 6, 2021 and June, 8, 2021 industrial action embarked upon by the members of the Judicial Service Union of Nigerian (JUSUN) and the practice direction of the Court. We urge the Court to take judicial notice of this law pursuant to the Evidence Act 2011.
3.11 The Applicant’s mandate includes promotion of human rights, transparency, accountability and anti-corruption in Nigeria. The demand made by the Applicant on the 1st Respondent is in furtherance of the legal and constitutional duty of the Respondents to ensure utmost transparency and accountability in their official capacities as managers of Nigeria’s financial and human resources, which the Applicant seeks to enforce. This suit is therefore of public interest as it bothers on issues of national interest, social justice, good governance, transparency and accountability.
3.12 Thus, the Applicant has the requisite locus standi needed to initiate this suit, as our courts have recognized suits initiated to enforce public rights in situations where the Applicant has not been the victim of personal injury. It was held in Fawehinmi v. Akilu[supra] page 47 (paras. F – B) Obaseki, J.S.C. as follows:
“The peace of the society is the responsibility of all persons in the country and as far as protection against crime is concerned, every person in the society is each other’s keeper… If consanguinity or blood relationship is allowed to be the only qualification for locus standi, then crimes…will go unpunished, may became the order of the day and destabilize society.”
3.13 The Applicant’s right to institute this suit in public interest has received a further boost by the decision of the Supreme Court of Nigeria in the case of Centre for Oil Pollution Watch v NNPC [2019] 5 NWLR (Pt. 1666) 518, whose facts are impari materia with the instant suit.
3.14 The Supreme Court at page 580 – 581, paragraphs G – B, per Aka’ahs, JSC unequivocally stated as follows:
“The issue of environmental protection against degradation has become a contemporary issue. The Plaintiff/Appellant being in the vanguard of protecting the environment should be encouraged to ensure that actions or omissions by Government agencies or Multi-national oil companies that tend to pollute the environment are checked. Since other commonwealth countries such as England, Australia and India have relaxed their rigidity in the application of the concept of locus standi in public interest litigation, Nigeria should follow suit. The communities affected by the spillage leading to the environmental degradation may not muster the financial muscle to sue and if good spirited organizations such as the Plaintiff is denied access to sue, it is the affected communities that stand to lose.”
3.16 The allegation that N106 billions of public funds are missing, mismanaged, diverted or stolen, as documented in the Auditor General’s Annual [Audit] Report 2018 raises grievous concerns on the need for the entrenchment of transparency and accountability in a system currently dominated by corruption and further demands urgent response of the Nigerian government through meticulous investigation.
3.17 The request made to the 1st Respondent is hinged on an issue of public interest, social justice, good governance, transparency and accountability, hence the Respondent is unjustified in his refusal to oblige the Applicant’s requests. Consequently, it is imperative, in the interest of justice, for this Honourable Court to grant the Applicant leave to apply for judicial review and to seek an order of mandamus compelling the 1st Respondent to act in line with the requests of the Applicant.
3.18 We submit respectfully, that there must be strict obedience to laws, since the law is the grundnorm of order in the society. Thus, it was held in Assurance Foreningen Skuld Gjensidig v. MV Sealion (ex “Antibes”) & Anor (2005) LPELR – 7457 (CA) per Abba Aji, J.C.A (page 15, paras. C – E) as follows:
“An existing law must be respected and treated as such unless it is pronounced invalid by the court…”
3.19 It is the Applicant’s submission that there is a duty foisted on the 1st Respondent, as the President and Chief Executive Officer of the Federal Republic of Nigeria, to urgently direct the investigation of the allegations of mismanagement, diversion and stealing of public funds to the tune of N106 billion contained in the 2018 Auditor General’s Annual [Audit] Report, and those suspected to be responsible brought to justice.
3.20 It is then pertinent to emphasise the constitutional duties of the President as provided by Section 5(1)(b) of the Constitution includes “… the execution and maintenance of this Constitution, all laws made by the National Assembly…”. This, among other duties of the President, are stipulated by rules, among which are the Oath of the President [Seventh Schedule] of the Constitution and Code of Conduct for Public Officers [Fifth Schedule Part 1] of the Constitution of the Federal Republic of Nigeria 1999 [as amended].
3.21 Going by the laid down laws in the 1999 Constitution of the Federal Republic of Nigeria, the statutory duties of the President are mandatory. For instance, Section 15[5] of the 1999 Constitution provides that “The State shall abolish all corrupt practices and abuse of power”. The 1st Respondent’s obligation to direct the investigation of the allegations of mismanagement, diversion and stealing of public funds contained in the 2018 Annual Audit Report is also embedded in the President’s Oath of Office contained in Seventh Schedule of the Constitution of the Federal Republic of Nigeria 1999 [as amended]. The President swore to an oath to:
“…strive to preserve the Fundamental Objectives and Directive Principles of State Policy contained in the Constitution of the Federal Republic of Nigeria; … devote myself to the service and well-being of the people of Nigeria”
3.22 Moreover, section 15 of the 1999 Constitution is contained in the Fundamental Objectives and Directive Principles of State Policy. This connotes the serious nature of public duty owed to the country/citizens by the President. Moreover, the Oath of Office of the President contained in the Seventh Schedule of the Constitution of the Federal Republic of Nigeria 1999is integral to the functions of the office of the President. The Oath of Office of the President is considered of such importance that section 140 of the 1999 Constitution provides that the President cannot perform his or her respective official functions as President without taking the oath of office. For ease of reference, My Lord, Section 140[1] of the 1999 Constitution pertaining to the President is stated below:
“A person elected to the office of President shall not begin to perform the functions of that office until he has declared his assets and liabilities as prescribed in this Constitution and he has taken and subscribed the Oath of Allegiance and the oath of office prescribed in the Seventh Schedule to this Constitution.”
3.23 The Public Procurement Act, the 1999 Nigerian Constitution (as amended) and Nigeria’s international obligations under ratified conventions and treaties, including the United Nations Convention against Corruption [UNCAC] and the International Covenant on Economic, Social and Cultural Rights [ICESCR] are laws binding on Nigeria, and by extension, the 1st Respondent to act as requested by the Applicant.
3.24 The Nigeria Government has also signed on to the Open Government Partnership [OGP] in 2016, United Nations Convention on Anti-Corruption [UNCAC], African Union Convention on Preventing and Combating Corruption in Africa and the African Charter on Human and Peoples’ Rights which has been domesticated as part of Nigeria’s domestic laws. We submit that if the facts of corruption and lack of accountability alleged in 2018 Audit Report by the Auditor General of the Federation are established, they are corrupt practices and the President is under an obligation to give appropriate directives to ensure that justice is done.
3.25 The President’s obligation extends to taking measures in promoting transparency and accountability in the management of public finances. This will prevent mismanagement of public funds and the resultant denial of essential public services to the citizens of Nigeria. The Auditor General of the Federation, as a principal actor in the accountability cycle, prepared and submitted the 2018 Annual Report in line with section 85 of the 1999 Constitution. We pray the Court to take judicial notice of the contents of the Auditor General of the Federation’s Annual Audit Report 2018 (Exhibit SP9) pursuant to Section 122 of the Evidence Act 2011.
3.26 The Applicant submits that by virtue of the position and power held by the 1st Respondent and the functions that the office imposes, it is his duty and responsibility to ensure that the serious allegations of grave and grievous allegations of corruption, as well as the impunity with which these violations are alleged also to occur, as made by 2018 Annual Audit Report are investigated. In the case of Dododo v. E.F.C.C. (supra) Pp.525, paras A – C, the Court held as follows:
“By virtue of section 318 of the 1999 Constitution, function includes power and duty… the right of the citizen to make complaints to the 1st Respondent is conterminous with the corresponding duty of the 1st respondent to receive the complaints, investigate them and act on them. They cannot shut him out by mere or sheer inaction…, he can seek review of the administrative action.”
3.27 From the facts deposed to in the verifying affidavit and statement, it is evident that steps have been taken by the Applicant, through the only means available to get the 1st Respondent to fulfil his duty to investigate these allegations, all to no avail. The letter written by the Applicant to the 1st Respondent requesting him to promptly direct the investigation of the allegations of mismanagement, diversion and stealing of public funds contained in the 2018 Annual Audit Report, and those suspected to be responsible brought to justice discharges the Applicant’s duty to first lay the significant request for action before the public body or authority. It is for this reason that the Applicant is seeking recourse to an order of mandamus. In Fawehinmiv. I.G.P [2002] 7 NWLR [Part 767] 606 page 674 para. D, the Supreme Court describing the function of a mandamus order, stated as follows:
“Mandamus is a high prerogative writ which lies to secure the performance of a public duty…it gives command that a duty or function of a public nature which normally, though not necessarily is imposed by statute but is neglected or refused to be done after due demand, be done. If there is a discretion to perform the duty, the court has the power to examine whether the discretion to refuse to act has been properly exercised”.
3.28 We contend that that the failure of the 1st Respondent to direct the investigation of the allegations made in the 2018 Annual Audit Report constitutes a grave violation of the duty placed on the Nigerian government to take appropriate measures to promote transparency and accountability in the management of public finances and also fulfil its national and international obligations.
3.29 This failure to act against corruption may also be construed as tolerance of acts of impunity. It is therefore in the interest of justice that the court grants this application to protect fundamental rights of Nigerians, and reduce the scope of the incidence of impunity and corruption in Nigeria.
4.0 CONCLUSION
4.1 The Applicant has made out a meritorious case in this Written Address and respectfully urges this Honourable Court to grant the leave sought. Further, we have demonstrated, based on established principles of law, binding judicial precedents and the Rules of this Honourable Court, that the Applicant has satisfied the conditions precedent for the grant of the leave sought.
4.2 We are most obliged.
Dated this _______ day of ______________ 2021
___________________
Olúwádàre A. Kóláwolé
Joke Victoria Fekumo
Applicant’s Counsel
C/o 18, Bamako Street
Wuse Zone1,
FCT Abuja
Tel : 08160537202
Email: info@serap-nigeria.org
