By Davidson Iriekpen
The Federal High Court sitting in Lagos has ordered the former Minister of Finance, Dr. Ngozi Okonjo-Iweala, and the federal government to provide information on the spending of the alleged ‘missing N30 trillion’, representing the accruable income to the federal government during the last four years of the administration of former President, Dr. Goodluck Jonathan.
The judgment was delivered last Friday by Justice Ibrahim Buba following a Freedom of Information (FoI)request in suit number FHC/L/CS/196/2015 brought by a civil society organisation, Socio-Economic Rights and Accountability Project (SERAP).
SERAP’s suit followed revelations by the former Governor of the Central Bank of Nigeria (CBN), Prof. Charles Soludo, that at least N30 trillion “has either been stolen or unaccounted for, or grossly mismanaged over the last few years under the Coordinating Minister for the Economy and Minister of Finance, Dr Ngozi Okonjo-Iweala’s watch.”
Soludo had asked Okonjo-Iweala the following questions: “How many trillions of naira were paid for oil subsidy (unappropriated)? How many trillions (in actual fact) have been ‘lost’ through customs duty waivers over the last four years? Can you tell Nigerians why the price of diesel has still not come down despite the crash in global crude oil prices, and how much is being appropriated by friends in the process?”
Soon after the former CBN governor asked the questions, SERAP in February 2015 dragged Okonjo-Iweala to court for refusing to provide information about spending of the alleged missing N30trillion
Justice Buba in his judgment, said Okonjo-Iweala and the federal government had no legally justifiable reason for refusing to provide SERAP with the information requested for.
The court agreed that SERAP’s application had merits and granted it as prayed.
The court concurred with the arguments by SERAP’s Deputy Director, Olukayode Majekodunmi, that Okonjo-Iweala and the federal government should have either supplied the information requested by SERAP or communicate her denial within seven days of receipt of the letter from SERAP if she considers that the request should be denied.
The judgment by Justice Buba read in part: “Preliminary objection by Okonjo-Iweala and the federal government is misconceived, the court upholds the arguments by SERAP for the reasons stated herein.
“SERAP commenced this proceeding by way of originating summons dated February 23, 2015, and filed February 25, 2015. Okonjo-Iweala and the federal government filed a memorandum of conditional appearance, a notice of preliminary objection and written address, all undated but filed on September 29, 2015.
“The preliminary objection is on the following grounds: that SERAP did not obtain the mandatory leave of the Federal High Court to issue and serve the originating summons and other processes outside Lagos State; that there is no mandatory endorsement on the originating summons that it is to be served on Okonjo-Iweala and the federal government in Abuja and outside jurisdiction of this court.
“The only issue for determination is whether Okonjo-Iweala and the federal government should be heard on their preliminary objection considering the totality of the circumstances of this case.
“He who wants equity must do equity. This suit was filed on February 25, 2015, and from the record of the court was served on Okonjo-Iweala and the federal government on July 3, 2015. It took about three months for them to come up with technical response to the simple request for information under the Freedom of Information Act 2011.
“Okonjo-Iweala and the federal government have therefore been caught by Order 29 of the Rules of this court, which requires that an application shall be made within 21 days after service on the defendants of the originating summons.”
“If Okonjo-Iweala and the federal government want to raise issues about service, the law does not permit of demurer. The proper route for them should have been to join issues with the originating summons and also file their objections. In the present case by SERAP, the notice of preliminary objection by Okonjo-Iweala and the federal government is incurably defective for not conforming to order 29 of the rules of this court.
“The process adopted by Okonjo-Iweala and the federal government in this suit is to come by way of demurer. This process has long been abolished by the Rules of this court. By Order 16 Rule 1 of the Rules of this court, no demurer shall be allowed and rule 2 provides that a party shall be entitled to pursue by his pleadings any point of law and any point of law so raised shall be disposed by the judge who tries the cause at or after trial.
“The implication of this clear provision of the rule of court is that Okonjo-Iweala and the federal government must join issues with SERAP on the originating summons no matter how flimsy, instead of looking for a technical way out. This technical way out has failed.”
“The concept of demurer as presently raised by Okonjo-Iweala and the federal government is no longer known to law especially the Federal High Court of Nigeria. It is the position of the law that the application of Okonjo-Iweala and the federal government should fail. Okonjo-Iweala and the federal government, having failed to file counter affidavit to SERAP’s suit, are deemed to have forfeited that option of filing anything again.
“Having shown why the application by Okonjo-Iweala and the federal government should be dismissed for failing to join issues with SERAP, the originating process must be moved on the merits.
“On the issue of failure to obtain pre-requisite consent/leave of Court to issue and serve the originating summons on Okonjo-Iweala and the federal government outside of jurisdiction, Order 6 Rule 31 states that ‘in this Order out of jurisdiction means out of the Federal Republic of Nigeria.”
“It is also necessary to refer to sections 97 and 99 of the Sheriff and Civil Process Act. The provisions apply to the validity of the service and have nothing to do with the validity of the originating process. On the strength of this clear provision, which Okonjo-Iweala and the federal government did not deny and incapable of denying at this point, their objection is dismissed as the validity of the process is not affected in any way.
“The main issue in this court’s view borders on the legal binding obligation imposed on Okonjo-Iweala and the federal government by the provisions of the Freedom of Information Act access to a record of information requested for. In the case at hand, SERAP through its letter of February 2 2015, Exhibit A, sought the information relating to the spending of the alleged missing N30 trillion, which represents some accruable income to the federal government during the last four years of the administration of President Jonathan. Exhibit A has been received by them, and Exhibit B is the acknowledgement of receipt of Exhibit A.
“However, Okonjo-Iweala and the federal government have since the receipt of the request letter failed, refused and or neglected to provide SERAP with the information it requested for within their custody. They should have either supplied the information requested by SERAP or communicate their denial within seven days of receipt of the application from SERAP if it considers that the application should be denied.”
Reacting to the judgment, SERAP’s Executive Director, Adetokunbo Mumuni, said: “This judgment shows the important role that Nigerian courts can play in the efforts to promote transparency in government and combat corruption and the impunity of perpetrators. It also confirms that high-ranking government officials can no longer escape accountability for their action while in office. We urge Okonjo-Iweala to cooperate with the authorities in the efforts to ensure the full and effective enforcement of the judgment.”