There is prospect Nigerians keen on knowing the truth about alleged padding of the 2016 budget may soon have some answers, as the Federal High Court in Lagos has granted a bid by Socio-Economic Rights and Accountability Project (SERAP) “to seek an order of Mandamus to direct and compel the Federal Government to prosecute some principal officers of the National Assembly over allegations of padding and stealing of some N481bn from the 2016 budget.”
The decision by Justice Mohammed Idris last Friday has now cleared the way for SERAP to advance its case against the Federal Government on the publication of the reports of an investigation into the allegations of budget padding and prosecution of indicted officers of the National Assembly.
The decision also grants permission to SERAP to seek an order to compel the Federal Government to “closely monitor and scrutinize the spending of N131 billion (accrued from increased oil benchmark) allocated for additional non-constituency projects expenditure, to remove the possibility of corruption.”
Justice Idris granted the order for leave following the hearing of an argument in court on exparte motion by SERAP counsel Mrs Joke Fekumo. The motion on notice is set for Friday 26 January 2018, for the hearing of argument on why the reports by anti-corruption agencies on the investigation into the alleged budget padding should not be published and why indicted officers should not be prosecuted.
The suit number FHC/L/CS/1821/2017 filed last year followed “credible information received by SERAP from multiple sources that the Department of State Services (DSS) and the Economic and Financial Crimes Commission (EFCC) have completed investigations into the allegations of padding of the 2016 budget, completed their reports, and indicted some principal officers of the House of Representatives and the Senate, and that the accounts of some of the principal officers containing allegedly illicit funds have been frozen, and that the case files for the prosecution of those indicted were ready.”
The suit read in part: “Unless the principal officers indicted in the alleged padding of the 2016 budget are prosecuted and any stolen public funds recovered, the Federal Government will not be able to stop padding of future budgets. Alleged corruption in the budget process will not just melt away or simply evaporate without addressing the fundamental issue of impunity of perpetrators.”
“Addressing alleged corruption in the budget process by pursuing prosecution of indicted principal officers of the National Assembly will provide an important opportunity for the Federal Government to reignite the fight against corruption and fulfil a cardinal campaign promise, to show that the Federal Government works on behalf of the many, and not the few, as well as jumpstart economic activities and break the back of the recession.”
“Publishing the report of the investigation of the alleged padding of the 2016 budget, and prosecuting suspected perpetrators are absolutely important to avoid another padding, which the Federal Government can ill afford.”
“Corruption in the budget process takes away and erodes much-needed resources for public and developmental purposes. The level of secrecy surrounding the budget process in the National Assembly has invariably created a breeding place for alleged corruption. Secrecy in the National Assembly has clearly gone beyond the level permitted by law, and apparently served as the incubator for corruption, while depriving the Nigerian people of a much-needed opportunity to cleanse the National Assembly of persistent allegations of corruption.”
“Deception in the budget process will continue unless Nigerians are granted access to inspect the budget process and other activities by the National Assembly. SERAP strongly believes that Nigerians have the right to know what their lawmakers are doing so that they are able to appraise their work and hold them to account.”
“It is in the interest of justice to grant this application as the Federal Government has nothing to lose if the reliefs sought are granted.”
“The allegations of crime of budget padding against the indicted principal officers of the National Assembly is a gross deprivation of the good people of Nigeria’s legitimate wealth and natural resources. We respectfully urge your Lordship to hold that the citizens of Nigeria have been deprived of their natural wealth and the indicted principal members be prosecuted by the Minister of Justice and Attorney-General of the Federation.”
IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
SUIT NO: FHC/L/CS/1821/2017
BETWEEN:
THE REGISTERED TRUSTEES
OF THE SOCIO-ECONOMIC RIGHTS APPLICANT
AND ACCOUNTABILITY
PROJECT
AND
PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA
RESPONDENTS
ATTORNEY GENERAL AND MINISTER OF JUSTICE OF THE FEDERATION MOTION EX-PARTE BROUGHT PURSUANT TO:
ORDER 34, RULES 1 (1) (A); 2, RULE 3 (1) AND (2) (A), (B) AND (C) OF THE FEDERAL HIGH COURT RULES, 2009 INHERENT JURISDICTION OF THIS HONOURABLE COURT
TAKE NOTICE that this Honourable Court will be moved on the _____day of___________ 2017 at the Hour of 9’O Clock in the forenoon or so soon thereafter as Counsel may be heard on behalf of the Applicant praying this Honourable Court for the following:-
1.AN ORDER of this Honorable Court granting leave to the Applicant to apply for Judicial Review and to seek an order of Mandamus directing and or compelling the 1st Respondent to do the following:
Urgently instruct security and anti-corruption agencies to forward to him reports of their investigations into allegations of padding and stealing of some N481 billion from the 2016 budget by some principal officers of the National Assembly, and to direct the Attorney General of the Federation and Minister of Justice Abubakar Malami, SAN, and/or appropriate anti-corruption agencies to without delay commence prosecution of indicted officers;
Direct the publication of the report of investigations by security and anti-corruption bodies into the alleged padding of the 2016 budget;
Urgently halt alleged ongoing attempt by some principal officers of the National Assembly to steal N40 billion of the N100 billion allocated by his government as ‘zonal intervention’ in the 2017 budget;
Closely monitor and scrutinize the spending of N131 billion (accrued from increased oil benchmark) allocated for additional non-constituency projects expenditure, to remove the possibility of corruption.
AN ORDER of this Honourable Court granting leave to the Applicant to apply for Judicial Review and to seek an order of Mandamus directing and or compelling the 2nd Respondent to do the following:
Prosecute indicted principal officers of the National Assembly who are alleged to have stolen and padded the 2016 budget.
AND for such order or other orders as this Honourable Court may deem fit to make in the circumstance.
AND TAKE NOTICE that on the hearing of this application, the Applicant will use the affidavit and the exhibits therein referred to.
Dated this ______ day of _________________, 2017.
_________________________
JOKE V. FEKUMO, ESQ,
APPLICANT’S COUNSEL,
SOCIO-ECONOMIC RIGHTS ANDACCOUNTABILITY PROJECT (SERAP),
2B, OYETOLA STREET, OFF AJANAKU STREET, SALVATION BUS-STOP, OPEBI, IKEJA, LAGOS
Tel: 08160537202; Email: [email protected]
IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
SUIT NO: FHC/L/CS/1821/2017
BETWEEN:
THE REGISTERED TRUSTEES
OF THE SOCIO-ECONOMIC RIGHTS
AND ACCOUNTABILITY APPLICANT
PROJECT
AND
PRESIDENT OF THE
FEDERAL REPUBLIC OF NIGERIA
RESPONDENTS
ATTORNEY GENERAL
AND MINISTER OF JUSTICE
OF THE FEDERATION
AFFIDAVIT IN SUPPORT
I, Ahmed Oshodi, Male, Nigerian, Muslim and Litigation Clerk of Socio-Economic Rights and Accountability Project (SERAP) of No. 2b, Oyetola Street, off Ajanaku Street, Salvation Bus-stop, Opebi Street, Ikeja, Lagos, do hereby make oath and state as follows:
1. That I am a Litigation Clerk of the Socio-Economic Rights and Accountability Project (SERAP), the Applicant in this suit.
2. That I have the consent and authority of the Applicant herein to depose to this affidavit.
3. That by virtue of my position and the fact stated in paragraph 1 hereof, I am conversant with the facts of this case and with the facts deposed herein.
4. That the Applicant is a human rights non-governmental organization established in Nigeria and which seeks to promote transparency and accountability in Nigeria through human rights.
5. I was informed by Counsel to the Applicant, Joke V. Fekumo in our office on the 4th of October, 2017, and I verily believe her as follows;
That in the pursuit of its mandate, the Applicant, by a letter dated 18th September 2017, requested the 1st Respondent to do the following;
Urgently instruct security and anti-corruption agencies to forward to him reports of their investigations into allegations of padding and stealing of some N481 billion from the 2016 budget by some principal officers of the National Assembly, and to direct the Attorney General of the Federation and Minister of Justice Abubakar Malami, SAN, and/or appropriate anti-corruption agencies to without delay commence prosecution of indicted officers;
Direct the publication of the report of investigations by security and anti-corruption bodies into the alleged padding of the 2016 budget;
Urgently halt alleged ongoing attempt by some principal officers of the National Assembly to steal N40 billion of the N100 billion allocated by his government as ‘zonal intervention’ in the 2017 budget;
Closely monitor and scrutinize the spending of N131 billion (accrued from increased oil benchmark) allocated for additional non-constituency projects expenditure, to remove the possibility of corruption.
But since the receipt of the letter, and up till the filing of this suit, the 1st Respondent has so far failed to grant the demands of the Applicant. Shown to me and marked Exhibits A and B are copies of the letter sent to the 1st Respondent and the evidence of receipt of the letter by the 1st Respondent.
That this matter is to compel the 1st Respondent, the President of the Federal Republic of Nigeria, to do the following;
urgently instruct security and anti-corruption agencies to forward to him reports of their investigations into allegations of padding and stealing of some N481 billion from the 2016 budget by some principal officers of the National Assembly, and to direct the Attorney General of the Federation and Minister of Justice Abubakar Malami, SAN, and/or appropriate anti-corruption agencies to without delay commence prosecution of indicted officers;
Direct the publication of the report of investigations by security and anti-corruption bodies into the alleged padding of the 2016 budget;
Urgently halt alleged ongoing attempt by some principal officers of the National Assembly to steal N40 billion of the N100 billion allocated by his government as ‘zonal intervention’ in the 2017 budget;
Closely monitor and scrutinize the spending of N131 billion (accrued from increased oilbench mark) allocated for additional non-constituency projects expenditure, to remove the possibility of corruption. Immediately institute and undertake criminal proceedings against Mrs. Dame Patience Jonathan over $15m unexplained wealth frozen in four companies’ accounts.
That furthermore, this matter is to compel the 2nd Respondent to do the following:
Prosecute indicted principal officers of the National Assembly who are alleged to have stolen and padded the 2016 budget.
That this matter is presently generating a lot of public concern and discourse and is presently in the front burner of national discourse thus germane to Nigerians and that the demands made by the Applicant on the 1st and 2nd Respondents are not onerous but simply bother on issues of National interest, public concern, social justice, good governance, transparency and accountability.
That it is in the interest of justice to grant this application as the Respondents have nothing to lose if the application is granted.
That I make this declaration in good faith, believing it’s content to be true to the best of my ability and in accordance with the Oaths Act.
_________________
DEPONENT
Sworn to at the
Federal High Court Registry, Lagos,
this _____ day of October, 2017.
BEFORE ME
COMMISSIONER FOR OATHS
IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
SUIT NO: FHC/L/CS/1821/2017
BETWEEN:
THE REGISTERED TRUSTEES
OF THE SOCIO-ECONOMIC RIGHTS
AND ACCOUNTABILITY APPLICANT
PROJECT
AND
PRESIDENT OF THE
FEDERAL REPUBLIC OF NIGERIA
RESPONDENTS
ATTORNEY GENERAL
AND MINISTER OF JUSTICE
OF THE FEDERATION
STATEMENT PURSUANT TO ORDER 34 (3) OF THE FEDERAL HIGH COURT (CIVIL PROCEDURE) RULES, 2009
NAMES AND DESCRIPTIONS OF THE APPLICANT
The Applicant is the Socio-Economic Rights and Accountability Project (SERAP), a human rights non-governmental organization whose mandate include to promote and seek respect for socio-economic rights of Nigerians, and to promote transparency and accountability in the public and private sectors through human rights.
The Applicant’s address is No 2b, Oyetola Street, off Ajanaku Street, Salvation Bus-Stop, Opebi, Ikeja, Lagos.
2. RELIEFS SOUGHT BY THE APPLICANT
1. AN ORDER of this Honorable Court granting leave to the Applicant to apply for Judicial Review and to seek an order of Mandamus directing and or compelling the 1st Respondent to do the following:
Urgently instruct security and anti-corruption agencies to forward to him reports of their investigations into allegations of padding and stealing of some N481 billion from the 2016 budget by some principal officers of the National Assembly, and to direct the Attorney General of the Federation and Minister of Justice Abubakar Malami, SAN, and/or appropriate anti-corruption agencies to without delay commence prosecution of indicted officers;
Direct the publication of the report of investigations by security and anti-corruption bodies into the alleged padding of the 2016 budget;
Urgently halt alleged ongoing attempt by some principal officers of the National Assembly to steal N40 billion of the N100 billion allocated by his government as ‘zonal intervention’ in the 2017 budget;
Closely monitor and scrutinize the spending of N131 billion (accrued from increased oil benchmark) allocated for additional non-constituency projects expenditure, to remove the possibility of corruption.
AN ORDER of this Honourable Court granting leave to the Applicant to apply for Judicial Review and to seek an order of Mandamus directing and or compelling the 2nd Respondent to do the following:
Prosecute indicted principal officers of the National Assembly who are alleged to have stolen and padded the 2016 budget.
3. GROUNDS FOR SEEKING RELIEFS
The Applicant in the pursuit of its mandate, by a letter dated 18th September, 2017, requested the 1st Respondent to do the following;
Urgently instruct security and anti-corruption agencies to forward to him reports of their investigations into allegations of padding and stealing of some N481 billion from the 2016 budget by some principal officers of the National Assembly, and to direct the Attorney General of the Federation and Minister of Justice Abubakar Malami, SAN, and/or appropriate anti-corruption agencies to without delay commence prosecution of indicted officers;
Direct the publication of the report of investigations by security and anti-corruption bodies into the alleged padding of the 2016 budget;
Urgently halt alleged ongoing attempt by some principal officers of the National Assembly to steal N40 billion of the N100 billion allocated by his government as ‘zonal intervention’ in the 2017 budget;
Closely monitor and scrutinize the spending of N131 billion (accrued from increased oil benchmark) allocated for additional non-constituency projects expenditure, to remove the possibility of corruption.
The duty to comply with the demands of the Applicant as contained in the Applicant’s letter dated 18th September 2017 is upon the 1st Respondent who is the President and Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria.
Up till the time of filing this action the 1st Respondent has failed, neglected and refused to comply with the demands of the Applicant. The particulars of facts of the failure, negligence and refusal are contained in the affidavit in support of this application and shall be relied upon at the hearing of this application.
The 1st Respondent has no reason whatsoever not to comply with the demands of the Applicant.
The 2nd Respondent has failed, neglected and refused to prosecute indicted principal officers of the National Assembly who are alleged to have stolen and padded the 2016 budget.
The demands sought for by the Applicant bother on National interest, probity, accountability, public concern, social justice and transparency, and will fight corruption which is endemic in the Nigerian society and which is the main reason for the underdevelopment and poverty of the Nigerian Nation.
Dated this ______ day of _________________, 2017.
JOKE V. FEKUMO, ESQ,
APPLICANT’S COUNSEL,
SOCIO-ECONOMIC RIGHTS ANDACCOUNTABILITY PROJECT (SERAP),
2B, OYETOLA STREET, OFF AJANAKU STREET, SALVATION BUS-STOP, OPEBI, IKEJA, LAGOS
Tel: 08160537202; Email: [email protected]
IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
SUIT NO: FHC/L/CS/1821/2017
BETWEEN:
THE REGISTERED TRUSTEES
OF THE SOCIO-ECONOMIC RIGHTS APPLICANT
AND ACCOUNTABILITY
PROJECT
AND
PRESIDENT OF THE
FEDERAL REPUBLIC OF NIGERIA
RESPONDENTS
ATTORNEY GENERAL
AND MINISTER OF JUSTICE
OF THE FEDERATION
VERIFYING AFFIDAVIT OF THE APPLICANT
I, Ahmed Oshodi, Male, Nigerian, Muslim and Litigation Clerk of Socio-Economic Rights and Accountability Project (SERAP) of No 2b, Oyetola Street, off Ajanaku Street, Salvation Bus-stop, Opebi, Ikeja, Lagos, do hereby make oath and state as follows:
That I am a Litigation Clerk of the Socio-Economic Rights and Accountability Project (SERAP), the Applicant in this suit.
That I have the consent and authority of the Applicant herein to depose to this verifying affidavit.
3. That by virtue of my position and the fact stated in paragraph 1 hereof, I am conversant with the facts of this case and with the facts deposed to herein.
That all the facts contained in the Statement attached to this application are true to the best of my knowledge.
That I hereby verify all the facts contained in the Statement herein.
That I make this declaration in good faith.
Sworn to at
the Federal High Court Registry, Lagos
this ______ day of ________________, 2017.
BEFORE ME
COMMISSIONER FOR OATHS
IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
SUIT NO: FHC/L/CS/1821/2017
BETWEEN:
THE REGISTERED TRUSTEES
OF THE SOCIO-ECONOMIC RIGHTS APPLICANT
AND ACCOUNTABILITY
PROJECT
AND
PRESIDENT OF THE
FEDERAL REPUBLIC OF NIGERIA
RESPONDENTS
ATTORNEY GENERAL
AND MINISTER OF JUSTICE
OF THE FEDERATION
APPLICANT’S WRITTEN ADDRESS
INTRODUCTION
The Applicant is the Socio-Economic Rights and Accountability Project (SERAP), a human rights non-governmental organization whose mandate include to promote and seek respect for socio-economic rights of Nigerians, and to promote transparency and accountability in the public and private sectors through human rights.
The 1st Respondent is the President, Chief Executive Officer, Commander in Chief of the Armed Forces of the Federal Republic of Nigeria and a public officer and the 2nd Respondent is the Attorney-General of the Federation, Minister of Justice and the Chief Law Officer of the Federal Republic of Nigeria charged with the responsibility of instituting and initiating criminal proceedings against any person before any Court of law in Nigeria in respect of any offence created by or under any Act of the National Assembly.
By a letter dated 18th September, 2017, the Socio-Economic Rights and Accountability Project (SERAP) requested the 1st Respondent to do the following:
Urgently instruct security and anti-corruption agencies to forward to him reports of their investigations into allegations of padding and stealing of some N481 billion from the 2016 budget by some principal officers of the National Assembly, and to direct the Attorney General of the Federation and Minister of Justice Abubakar Malami, SAN, and/or appropriate anti-corruption agencies to without delay commence prosecution of indicted officers;
Direct the publication of the report of investigations by security and anti-corruption bodies into the alleged padding of the 2016 budget;
Urgently halt alleged ongoing attempt by some principal officers of the National Assembly to steal N40 billion of the N100 billion allocated by his government as ‘zonal intervention’ in the 2017 budget;
Closely monitor and scrutinise the spending of N131 billion (accrued from increased oil benchmark) allocated for additional non-constituency projects expenditure, to remove the possibility of corruption.
The 1st Respondent has since the receipt of the Applicant’s letter and up to the filing of this suit so far failed, refused or neglected to comply with the demands of the Applicant.
The 2nd Respondent has refused to prosecute indicted principal officers of the National Assembly who are alleged to have stolen and padded the 2016 budget.
The Written Address is filed on behalf of the Applicant and in support of this application. The background facts in respect of this application are well set out in the affidavit of Ahmed Oshodi. I humbly refer your Lordship to the said affidavit.
ISSUES FOR DETERMINATION
Whether by virtue of Section 130 (2) of the 1999 Constitution of the Federal Republic of Nigeria, the 1st Respondent as Head of State, the Chief Executive of the Federation, Commander-in-Chief of the Armed Forces of the Federation and public officer cannot be compelled to grant the request sought for by the Applicant from the 1st Respondent in its letter to the 1st Respondent dated 18th September in the interest of justice and for the purpose of accountability and transparency.
Whether by virtue of Section 174 (1) (a) of the 1999 Constitution of the Federal Republic of Nigeria, and Section 26 (2) of the Independent Corrupt Practices and other related offences Act, the 2nd Respondent who is the Attorney General and Chief Law Officer of the Federation is not under a binding legal obligation to prosecute indicted principal officers of the National Assembly who are alleged to have stolen and padded the 2016 budget.
LEGAL SUBMISSIONS
ISSUE 1
Whether by virtue of Section 130 (2) of the 1999 Constitution of the Federal Republic of Nigeria, the 1st Respondent as Head of State, the Chief Executive of the Federation, Commander-in-Chief of the Armed Forces of the Federation and public officer cannot be compelled to grant the request sought for by the Applicant from the 1st Respondent in its letter to the 1st Respondent dated 18th September in the interest of justice and for the purpose of accountability and transparency.
The Applicant states most humbly, that the 1st Respondent as Head of State, Chief Executive of the Federation, Commander in Chief of the Federation and a public officer desirous of combating corruption to a standstill ought to have obliged the Applicant’s requests for the purposes of transparency and accountability, and has so failed in delivering his promise to combat corruption, by refusing to oblige the Applicant’s request.
Most humbly My Lord, Nigeria is currently in a state of poverty, lack and snail speed development, and the clarion call for public officers in the calibre of the 1st Respondent by the Applicant to combat corruption and gross abuse of office ought to have been complied with without delay, if the 1st Respondent was desirous of fighting and combating corruption as he rightly promised upon his election into the public office of the President. This flows from the principle of Pacta sunt sevanda (your word must be your bond). In view of this, we urge my Lord to grant our application and compel the 1st Respondent to comply with our request.
Most humblyMy Lord, we seek leave for an order of mandamus, which can be granted to compel the 1st Respondent to oblige the Applicant’s request for the purpose of transparency and accountability. The Applicant has sufficient legal interest in monitoring the way and manner public funds are being utilized in Nigeria and has demanded the performance of the public duty from the 1st Respondent who is obliged to act so and the Applicant was refused.
We commend My Lord to the case of Chief Gani Fawehinmi v. Inspector General of Police & Ors (2001) 1 WRN 90 at 92-93, per Nwaifo, J.S.C. stated as follows:
“An Applicant for the grant of the order must show that he has sufficient legal interest to protect and that he has demanded the performance of the public duty from those obliged to do so and was refused.”
Also my Lord, we humbly commend your Lordship to the case of Ohakim & Anor. v. Agbaso & 4 Ors, (2010) 6-7 S.C. pg. 96, para 8-11, where it was held inter alia as follows:
“… Mandamus is simply an order issued by a Court of Law, usually the High Court to compel the performance of a public duty in which the person applying for the Mandamus has sufficient legal interest…”
The Applicant in this suit has sufficient legal interest as to the way and manner public funds are being utilized in Nigeria, and the Applicant has made demands bordering on transparency and accountability from the 1st Respondent who has refused its request.
Hence, the Applicant humbly urges Your Lordship in the interest of justice to grant leave to the Applicant to apply for Judicial Review and to seek an order of Mandamus directing and or compelling the 1st Respondent to:
Urgently instruct security and anti-corruption agencies to forward to him reports of their investigations into allegations of padding and stealing of some N481 billion from the 2016 budget by some principal officers of the National Assembly, and to direct the Attorney General of the Federation and Minister of Justice Abubakar Malami, SAN, and/or appropriate anti-corruption agencies to without delay commence prosecution of indicted officers;
Direct the publication of the report of investigations by security and anti-corruption bodies into the alleged padding of the 2016 budget;
Urgently halt alleged ongoing attempt by some principal officers of the National Assembly to steal N40 billion of the N100 billion allocated by his government as ‘zonal intervention’ in the 2017 budget;
Closely monitor and scrutinize the spending of N131 billion (accrued from increased oilbench mark) allocated for additional non-constituency projects expenditure, to remove the possibility of corruption.
The second issue
Whether by virtue of Section 174 (1) (a) of the 1999 Constitution of the Federal Republic of Nigeria, and Section 26 (2) of the Independent Corrupt Practices and other related offences Act, the 2nd Respondent who is the Attorney General and Chief Law Officer of the Federation is not under a binding legal obligation to prosecute indicted principal officers of the National Assembly who are alleged to have stolen and padded the 2016 budget.
The Respondent as the Chief Law Officer of the Federation is empowered to institute and undertake criminal proceedings against any person before any court of law in Nigeria.
For the avoidance of any doubt whatsoever, Section 150 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) states that the Attorney-General “shall be the Chief Law Officer of the Federation.”
In stating the public prosecution power of the Attorney-General. Section 174 (1) provides thus:-
to institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court-martial, in respect of any offence created by or under any Act of the National Assembly.”
My Lord there is no gainsaying the fact that the 2nd Respondent is saddled with the constitutional responsibility of instituting and initiating criminal proceedings against any person in Nigeria in respect of any offence created by or under any Act of the National Assembly.
The Corrupt Practices and other Related Offences Act 2000 which is an act of the National Assembly (particularly sections 8, 9 and 44) makes it an offence for any person to corruptly enrich himself or in possession of unexplained or illicit wealth and also allows criminal penalties and forfeiture if in the course of an investigation there are reasonable grounds to believe that a corruption offence has been committed, that is, the stealing and padding of the 2016 budget.
In fact, Section 26 (2) of the Act provides:
We humbly submit that stealing and budget padding are offences which fall within the class of corrupt practices envisaged in the Act. To this extent, the 2nd Respondent is under an obligation and a compelling legal duty to give effect to the earlier cited provisions of the Constitution and the Corrupt Practices and other Related Offences Act 2000 by urgently instituting and undertaking criminal proceedings against the indicted officers of the National Assembly who are alleged to have stolen and padded the 2016 budget.
Most humbly my Lord, we state here that the power of the Attorney General of the Federation is highly recognized by the court, it was held inter alia, in the case of Mohammed v. State, (2015) 2. S.C. (Pt. 1) pg. 165-166 as follows:
“… That Sections 174 and 211 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which have almost identical wording set out the powers of the Attorney General of the Federation and that of the State respectively. Sections 174 (1)... is reproduced as follows:
174 (1) The Attorney General of the Federation shall have power –
To institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court-martial, in respect of any offence created by or under any Act of the National Assembly...”
My Lord, we respectfully submit further that the 2nd Respondent has failed to carry out his constitutional and statutory responsibility in this regard, and he had the powers to do so absolutely, even without interference from the court. We humbly refer your Lordship to the case of Amadi v. Federal Republic of Nigeria (2008) 12 S.C. (Pt. III) pg. 57 where it was held inter alia thus:
“…an Attorney General’s powers under Section 174 and 211 of the Constitution of the Federal Republic of Nigeria cannot be questioned by even the court.”
My Lord, we state that undoubtedly, the power to initiate legal proceedings against the principal officers of the National Assembly indicted to have stolen and padded the 2016 budget is on the Attorney General, and again, we humbly commend my Lord to the case of Federal Republic of Nigeria v. Adewunmi, (2007) 4 S.C. (Pt.III) pg 42 where it was held inter alia thus:
“…There is no doubt at all that the power to institute criminal proceedings against any person in the 1999 Constitution lies on the Attorney General of the State or the Federation as the case may be, but such power may be exercised by the Attorney General himself or through any officers of his department…”
There is no gainsaying the fact that the 2nd Respondent owes the Applicant and the Nigeria public a constitutional and statutory obligation to urgently institute and undertake criminal proceedings against the principal officers of the National Assembly indicted of stealing and padding of the 2016 budget.
In view of the fact that the 2nd Respondent has failed to institute and undertake criminal proceedings against the principal officers of the National Assembly indicted of stealing and padding of the 2016 budget, the Applicant has decided to bring an application by way of mandamus. See the case of Chief Gani Fawehinmi v. Inspector General of Police & Ors (2001) 1 WRN 90 at 92-93. per Oguntade, JCA, where the court decided on when mandamus can be used.
“Mandamus lies to secure the performance of a public duty in the performance which the applicant has a sufficient legal interest. He must show that he has demanded the performance of the duty and that performance has been refused by the authority obliged to discharge it…”
Also my Lord, we humbly commend your Lordship to the case of Ohakim & Anor. V. Agbaso & 4 Ors, (2010) 6-7 S.C. pg. 96 where it was held inter alia as follows:
“… Mandamus is simply an order issued by a Court of Law, usually the High Court to compel the performance of a public duty in which the person applying for the Mandamus has sufficient legal interest…”
The Applicant in this suit has sufficient legal interest as to the way and manner public funds are being utilized in Nigeria. However, the Respondent has failed to carry out the constitutional and statutory responsibility as enshrined under Sections 150 (1) and 174 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Section 26 (2) of The Corrupt Practices and other Related Offences Act 2000. In the light of this, we humbly urge your Lordship to hold that the Applicant has rightly commenced this suit by seeking leave for an order of mandamus.
The Court of Appeal had an occasion to consider the expanded horizon oflocus Standi in order to encourage public interest litigations in the case of Shell Petroleum Dev. Co.Ltd & 5 ORS V E.N. Nwawaka & Anor (2001) FWLR (PT. 48) 1383 Pats-Acholonu, JCA (as he then was) (and of blessed memory) held as follows:-
“It needs the courage, wisdom and proper understanding of our socio-economic environment for an activist Judge to widen the scope of the law on locus standi. Some Judges and advocates have shown trepidation in handling this matter before the Court without bending overly backwards because a matter is on borderline in respect of whether the initiator of an action has the standing order to do so………I believe that it is the right of any Citizen to see that the law is enforced where there is an infraction of that right or a threat of its being violated in matters affecting the public law and in some cases, of private law such as where widows, orphans are deprived and a section of the society will be adversely affected by doing nothing”.
My Lord, the stealing and the padding of the 2016 budget is a heinous crime against the Nation Nigeria, and we humbly urge your Lordship to grant the Applicant leave to seek an order of Mandamus directing and or compelling the 2nd Respondent to prosecute the said indicted principal officers of the National Assembly.
The aforementioned fraudulent and corrupt stealing and padding of the 2016 budget by the indicted principal officers of the National Assembly at the expense of Nigeriansis against democratic tenets. We most humbly refer your Lordship to Article 22 (1) and (2) of the African Charter on Human and Peoples’ Rights, (which is a regional instrument which has been ratified and domesticated by Nigeria). It states as follows:
“Article 22 (1) All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind.
Article 22 (2) States shall have the duty, individually or collectively, to ensure the exercise of the right to development.”
Similarly, Section 16 (1) (a) and (b) of the 1999 Constitution of the Federal Republic of Nigeria provides thus:
“The State shall, within the context of the ideals and objectives for which provisions are made in this Constitution…
Harness the resources of the nation and promote national prosperity and an efficient, a dynamic and self-reliant economy;
Control the national economy in such manner as to secure the maximum welfare, freedom and happiness of every citizen on the basis of social justice and equality of status and opportunity.”
My Lord, the allegations of crime of budget padding against the indicted principal officers of the National Assembly is a gross deprivation of the good people of Nigeria’s legitimate wealth and natural resources. We respectfully urge your Lordship to hold that the citizens of Nigeria have been deprived of their natural wealth and the indicted principal members of the National Assembly be prosecuted forthwith by the Attorney-General of the Federation. We refer your Lordship to the case of DAPIANLONG V DARIYE (2007) 27 WRN 1 at 42, per Aderemi, JSC, where the court decided on whether there is need to see that political office holders do not run away from justice.
“The allegations leveled against the 1st Respondent as contained in the record, are despicable to the highest degree. If proved in accordance with the laws of our land, by the cardinal principle of the morality, justice and democratic government that an offender guilty of crime should be sentenced by the Court to such penalty as his crime merits, the 1st Respondent must not be allowed to run away from justice……:”
My Lord, applying the words of Aderemi, JSC to the fact of the instant case, the alleged stealing and padding of the 2016 budget linked to the indicted principal officers of the National Assembly are despicable and worrisome. Yet, the 2nd Respondent did not deem it fit in the circumstance to prosecute them. The alleged offence is in our society at the moment regarded so serious as to bother on daily life. Since the 2nd Respondent has failed to carry out his constitutional and statutory duty, the Applicant is justified in bringing this application for the order of mandamus. It is an important constitutional duty which he owes to the generality of Nigerians and all other persons lawfully living within Nigeria.
CONCLUSION:
My Lord, upon the assumption of office of President Muhammadu Buhari, he made it known that his administration will have a zero tolerance for corruption and other social vices capable of jeopardizing the image of our Country; hence he should oblige the Applicant’s request. In addition, the office of the Attorney General of the Federation and Minister of Justice should wake up from its slumber by performing its constitutional and statutory duties of prosecuting the alleged crime of stealing and padding of the 2016 budget in this case. See Ugwu v. Ararume (2007) 31 WRN 1 at 42 where Mohammad, J.S.C. held on attainment of a fair, just and egalitarian society:-
“If we want to instill sanity into our human affairs, if we want to entrench unpolluted democracy in our body polity, the naked truth must permeate through the blood, nerve and brain of each and every one of us. Although credit may not always have its rightful place in politics, we should try to blend the two so as to attain a fair, just and egalitarian society where no one is oppressed. Let us call a spade a spade! Let us not give a dog bad name in order to hang it.”
My Lord, in Governor of Ebonyi State & Ors v. Hon. Justice Isuama (2003) FWLR [Pt. 169] 1210 @ 1227-1228, the Court of Appeal while stressing the need for public officials to obey rules of law held as follows:
“Obedience to the rule of law by all citizens but more particularly those who publicly took oath of office to protect and preserve the constitution is a desideratum to good governance and respect for the rule of law. In a democratic society, this is meant to be a norm; it is an apostasy for government to ignore the provisions of the law and the necessary rules made to regulate matters”.
We humbly urge your Lordship to hold that the Applicant has made out a meritorious case against the 1st and 2nd Respondent to wit; the 1st Respondent for failing to oblige the Applicant’s demands for the purposes of transparency and accountability and the 2nd Respondent for failing to failing to institute and undertake criminal proceedings against the indicted principal officers of the National Assembly who have been indicted of stealing and padding of the 2016 budget, which acts are heinous crimes of corruption against Nigerians and Nigeria.
I am most grateful My Lord.
Dated this ……. day of ____________________, 2017
_____________________
JOKE V. FEKUMO, ESQ,
APPLICANT’S COUNSEL,
SOCIO-ECONOMIC RIGHTS ANDACCOUNTABILITY PROJECT (SERAP),
2B, OYETOLA STREET, OFF AJANAKU STREET, SALVATION BUS-STOP, OPEBI, IKEJA, LAGOS