Ajasin’s appointment/NDDC budget: Ondo oil producing community elders sue Buhari, NASS, AGF

IN THE FEDERAL HIGH COURT OF JUSTICE

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

SUIT NO:………………..

BETWEEN:

1. Comrade Eganosi Ayenuberu}

2. Apostle Andrew Bode Awala }…………………………Plaintiffs

(For themselves and on behalf of Odonla and

Odun-Igho Communities of the oil producing area

of Ilaje Local Government, Ondo State)

AND

1. President, Federal Republic of Nigeria }

2. The National Assembly, Federal Republic of Nigeria }Defendants

3. The Attorney-General of the Federation }

4. Niger Delta Development Commission (NDDC) }

ORIGINATING SUMMONS

Let ( 1).President, Federal Republic of Nigeria c/o office of the Attorney General of the Federation, Ministry of Justice, Maitama, Abuja; (2).The National Assembly, Federal Republic of Nigeria of National Assembly Complex, Three Arms Zone, FCT, Abuja; (3). The Attorney-General of the Federation of Office of the Attorney General, Ministry of Justice, Maitama, Abuja and (4).Niger Delta Development Commission (NDDC) of 167, Aba Road, Port-Harcourt, Rivers State within thirty days after the service of this summons on them, inclusive of the days of such service, cause an appearance to be entered for them to this summons which is issued upon the application of Comrade Eganosi Ayenuberu of Odonla Community of oil producing area, Ilaje Local Government Area of Ondo State and Apostle Andrew Bode Awala of Odun-Igho Community of the oil producing area of Ilaje Local Government Area of Ondo State for the determination of the following questions:

QUESTIONS FOR DETERMINATION:

1. Whether considering the provisions of the Niger Delta Development Commission (Establishment etc) Act, 2000, particularly Sections 8, 9( 1& 2), 12 (3), 18(1) and 20(1) of the Act, the officers, servants, agents, staff and/or organs of the 4^th Defendant OTHER THAN THE BOARD of the 4^th Defendant can perform the functions conferred exclusively on the Board by the Act where the Board is yet to be constituted by the 1^st Defendant.

2. Whether by the provisions of section 18 (1) of the Niger Delta Development Commission (Establishment etc) Act, 2000 the staff, servants, officers, agents of the 4^th Defendant OTHER THAN THE BOARD CONSTITUTED UNDER SECTION 2 OF THE ACT can submit to the 2^nd Defendant through the 1^st Defendant the 2016 estimate of expenditure and income of the 4^th Defendant and/or any other estimate of expenditure and income for which the consideration and/or approval of the 2^nd Defendant is required.

3. Whether the 2016 estimate of expenditure and income (Budget) of the 4^th Defendant purportedly submitted by the 4^th Defendant through the 1^st Defendant to the 2^nd Defendant and subsequently passed/approved by the 2^nd Defendant during a period when the 1^st Defendant failed, refused and or neglected to constitute the Board of the 4^th Defendant which is the body conferred with the statutory power and responsibility to prepare and submit the said estimate of expenditure and income is not a violation of section 18 (1) of the Niger Delta Development Commission (Establishment etc ) Act, 2000 and therefore illegal, null, void and of no effect whatsoever.

4. Given the circumstances of this case, whether it is proper that the purported 2016 estimate of expenditure and income of the 4^th Defendant, its submission to the 2^nd Defendant and the purported passage/approval of same by the 2^nd Defendant on the 23^rd day of June, be set aside for being illegal, null and void.

WHEREOF THE PLAINTIFFS CLAIM THE FOLLOWING RELIEFS:

1. A DECLARATION that it is ONLY THE BOARD of the 4^th Defendant constituted by the 1^st Defendant in line with section 2 of the Niger-Delta Development Commission Act, 2000 (NDDC Act, 2000) that can submit to the 2^nd Defendant through the 1^st Defendant an estimate of the expenditure and income of the 4^th Defendant as provided by section 18 (1) of the NDDC Act, 2000.

2. A DECLARATION that the 1^st Defendant cannot SUO MOTO summit to the 2^nd Defendant an estimate of the expenditure and income of the 4^th Defendant except as provided for by section 18 (1) of the Niger-Delta Development Commission, Act 2000 (NDDC Act, 2000).

3. A DECLARATION that the purported consideration and approval of the 2016 estimate of expenditure and income of the 4^th Defendant by the 2^nd Defendant on Thursday, 23/06/16, the same having not been submitted by THE BOARD of the 4^th Defendant to the 2^nd Defendant in line with section 18 (1) of the NDDC, Act 2000 is illegal, null and void and of no effect whatsoever.

4. A DECLARATION that it is illegal, unlawful and a violation of section 18 (1) of the NDDC Act, 2000 for any staff, officer, organ or any person whatsoever, EXCEPT THE BOARD of the 4^th Defendant to submit to the 2^nd Defendant through the 1^st Defendant the 2016 estimate of the expenditure and income of the 4^th Defendant and/or any other estimate of the expenditure and income that the consideration and approval of the 2^nd Defendant is required.

5. AN ORDER declaring as illegal, null, void and of no effect whatsoever the purported 2016 estimate of expenditure and income of the 4^th Defendant passed/approved by the 2^nd Defendant on 23^rd day of June,2016, same having not been prepared or authorized by THE BOARD of the 4^th Defendant in line with section 18 (1) of the NDDC Act, 2000.

6. AN ORDER declaring as illegal, null, void and of no effect whatsoever the purported submission of the 2016 estimate of expenditure and income of the 4^th Defendant by the 4^th Defendant through the 1^st Defendant to the 2^nd Defendant, same having not been submitted by THE BOARD of the 4^th Defendant in line with section 18 (1) of the NDDC Act, 2000.

7. AN ORDER declaring as illegal, null, void and of no effect whatsoever the purported passage/approval of the 2016 estimate of expenditure and income of the 4^th Defendant by the 2^nd Defendant on the 23^rd day of June, 2016, the estimate having not been submitted to the 2^nd Defendant by THE BOARD of the 4^th Defendant in line with section 18 (1) of the NDDC Act, 2000

8. AN ORDER restraining all the Defendants whether by themselves, agents, servants, privies and whosoever and by howsoever from giving effect to the implementation of the 2016 estimate of expenditure and income (budget) of the 4^th Defendant purportedly approved and or passed into law by the 2^nd Defendant on 23/6/2016.

9. AN ORDER specifically restraining the 4^th Defendant, its servants, staff, officers, agents and any person whatsoever and by howsoever from giving effect to, implementing and operating the 2016 estimate of expenditure and income of the 4^th Defendant purportedly passed/approved by the 2^nd Defendant on 23/6/2016.

10. AN ORDER setting aside the purported 2016 estimate of expenditure and income of the 4^th Defendant, its submission to the 2^nd Defendant and its purported passage/approval by the 2^nd Defendant, for being illegal, null and void.

GROUNDS UPON WHICH THE RELIEFS ARE SOUGHT:

1. At the material time when the 2016 estimate of expenditure and income of the 4^th Defendant was passed/approved by the 2^nd Defendant, there was no Board of the 4^th Defendant in place, the previous Board of the 4^th Defendant having been dissolved by the 1^st Defendant in July 2015.

2. The 2016 estimate of expenditure and income purportedly passed/approved for the 4^th Defendant by the 2^nd Defendant on the 23^rd day of June, 2016 was not submitted to the 2^nd Defendant by the Board of the 4^th Defendant.

3. Given the provisions of Sections 8, 9 (2), 12 (3), 18, 20 of the Niger-Delta Development Commission, Act 2000 (NDDC Act, 2000), the functions or duties of the Board of the 4^th Defendant cannot be performed by officers, servants, staff and agents of the 4^th Defendant nor can such functions or duties be discharged or performed by the 1^st Defendant.

4. The purported submission of the 2016 estimate of expenditure and income of the 4^th Defendant to the 2^nd Defendant by the 4^th Defendant through the 1st Defendant and or by a person other than the governing Board duly constituted by the 1^st Defendant in line with the provisions of section 2(2) (a) and (b) of the Niger Delta Development Commission (Establishment etc) Act, 2000, (NDDC Act, 2000) was done in complete violation of the provisions of Section 18(1) of the Act.

5. The Board of the 4^th Defendant having not been constituted at the material time, the member states of the 4^th Defendant were not represented in the deliberations leading to the 2016 estimate of expenditure and income purportedly submitted to the 2^nd Defendant for passage/approval as a result of which the member states have no opportunity to project the relevant areas the intervention of the 4th Defendant is needed in the states.

6. The implementation of the 2016 estimate of expenditure and income purportedly passed by the 2^nd Defendant on the 23rd day of June, 2016 for the 4^th Defendant would certainly not be in the interest of the member states, more so as there is no Board in place to supervise the implementation and /or enter into the necessary contracts for the implementation as required under Section 8(a-f) of the Niger Delta Development Commission (Establishment etc) Act, 2000 (NDDC Act, 2000).

7. The 2016 estimate of expenditure and income purportedly passed/approved by the 2^nd Defendant 23/6/2016 for the 4^th Defendant does not make adequate provisions for the member states of the 4^th Defendant.

8. The conditions precedent to the passage/approval of the estimate of expenditure and income of the 4^th Defendant were not fulfilled before the same was passed/approved by the 2^nd Defendant.

9. The purported passage/ approval of the 2016 estimate of expenditure and income by the 2^nd Defendant for the 4^th Defendant was in violation of the provisions of Section 18(1) of the Niger Delta Development Commission (Establishment etc) Act, 2000, (NDDC Act, 2000)

This Originating summons was taken out by Dr. Benson Enikuomehin, Esq of Ayo J. Akam & Associates of Trinity House, Plot 943 Cadastral Zone, B06, behind Ministry of Works, Mabushi, Abuja, legal practitioners for the above named Plaintiffs.

………….…………………………….

DR. BENSON ENIKUOMEHIN, ESQ

AYO AKAM, ESQ

FEMI EMMANUEL EMODAMORI, ESQ

GODWIN . E. ADOLE, ESQ

OLU OGIDAN, ESQ

OLUSEYE JUDES OLUJIMI, ESQ

IFEDAYO I. OLANIPEKUN, ESQ

MARYFRANCES ORJI (MISS)

EMILIA CHINASA ATTAMA (MISS)

AMENAWON AIGBOGUN (MISS)

CHIAMAKA AZOZIE (MISS)

The defendants may appear hereunto by entering appearance personally or by a Legal Practitioner either by filing the appropriate process (as in Order 7) in response at the Registry of the Court where the summons was issued or by sending them to that office by any of the methods allowed by the Rules.

Note: If the defendants do not respond within the time at the place above mentioned, such Orders will be made and proceeding maybe taken as the Judge may think just and expedient.

This summons is to be served out of the jurisdiction of the Federal Capital Territory, Abuja and in 167 Aba Road, Port-Harcourt, Rivers State.

………………

JUDGE

Dated the ……………………..day of ………………………2016.

……………………………….

DR. BENSON ENIKUOMEHIN, ESQ

AYO AKAM, ESQ

FEMI EMMANUEL EMODAMORI, ESQ

GODWIN E. ADOLE

1. OLU OGIDAN, ESQ

OLUSEYE JUDES OLUJIMI, ESQ

IFEDAYO I. OLANIPEKUN, ESQ

MARYFRANCES ORJI (MISS)

EMILIA CHINASA ATTAMA (MISS)

AMENAWON AIGBOGUN (MISS)

CHIAMAKA AZOZIE (MISS)

(Legal Practitioners to the Plaintiffs)

Ayo J. Akam & Associates

Trinity House, Plot 943,

Cadastral Zone B06,

Behind Ministry of Works,

Mabushi, Abuja.

Tel:08122233445, 08069327803,

07031062826

FOR SERVICE ON

1. 1^st Defendant:

President, Federal Republic of Nigeria.

c/o office of the Attorney General of the Federation,

Ministry of Justice, Maitama, Abuja.

2. 2^nd Defendant:

The National Assembly, Federal Republic of Nigeria.

National Assembly Complex,

Three Arms Zone, FCT, Abuja.

3. 3^rd Defendant:

The Attorney-General of the Federation.

Office of the Attorney General,

Ministry of Justice, Maitama, Abuja.

4. 4^th Defendant:

Niger Delta Development Commission (NDDC)

167 Aba Road, Port-Harcourt,

River State.

IN THE FEDERAL HIGH COURT OF JUSTICE

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

SUIT NO:………………..

BETWEEN:

1. Comrade Eganosi Ayenuberu}

2. Apostle Andrew Bode Awala }………………………….Plaintiffs

(For themselves and on behalf of Odonla and

Odun-Igho Communities of the oil producing area

of Ilaje Local Government, Ondo State)

AND

1. President, Federal Republic of Nigeria }

2. The National Assembly, Federal Republic of Nigeria } Defendants

3. The Attorney-General of the Federation }

4. Niger Delta Development Commission (NDDC) }

AFFIDAVIT IN SUPPORT OF THE ORIGINATING SUMMOMS

I, Comrade Eganosi Ayenuberu, Male, Christian, Businessman, Nigerian Citizen of Odonla Community in Ugbo Political Ward 5, Ilaje Local Government Area of Ondo State do hereby make oath and state as follows:

1. That I am the 1^st Plaintiff in this suit and as such very familiar with the facts of this case.

2. That I have the consent and authority of the 2^nd Plaintiff to depose to this affidavit.

3. That the 2^nd Plaintiff and I are from Odu-Igho and Odonla Communities in Ugbo political wards 6 & 5 in the oil producing areas of Ilaje Local Government Area of Ondo State respectively.

4. That while I am a community and political leader of Odonla, the 2^nd Plaintiff is both a religious and community leader of Odun-Igho community which are parts of the Niger Delta Area of Ondo State.

5. The 2^nd Plaintiff and I are instituting this suit for ourselves and on behalf of Odun-Igho and Odonla communities of the oil producing area of Ilaje Local Government, Ondo State.

6. That the 1^st Defendant is a creation of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and is statutorily empowered with the responsibility of appointing members of the Governing Board and of supervising the Commission.

7. The 2^nd Defendant is created by the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and is saddled with the responsibility of confirming the appointment of the Governing Board and approving the annual or any other budgets of the 4^th Defendant submitted to it by the Board of the 4^th Defendant through the 1^st Defendant.

8. The 3^rd Defendant is a creation of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and is the Chief Law Officer of the Federation and Minister of Justice.

9. The 4^th Defendant is a creation of the enactment of the 2^nd Defendant, particularly the Niger-Delta Development Commission (Establishment etc) Act, 2000, Act No.6, Laws of the Federation of Nigeria.

10. That Ilaje Local Government (particularly Ugbo Communities) is the ONLY oil producing Local Government Council in Ondo State.

11. I know as a fact that the functions and powers of the 4^th Defendant include:

to execute such works and such functions which in the opinion of the 4^th Defendant are required for the sustainable development of the Niger Delta area and its people.

12. That I was informed by Ayo Akam, Esq of counsel on 28/06/2016 in his chambers at Trinity House, Mabushi FCT, Abuja at about 2.00pm and I verily believe him that:

    1. The 4^th Defendant was established primarily to cater for and intervene in providing for the needs of the people and communities within the Niger-Delta Area.

    2. That the activities of the 4^th Defendant are solely geared towards meeting the challenges the Niger Delta people face as a result of oil exploration and exploitation.

    3. In line with section 7 (1) particularly paragraphs b & j, the 4^th Defendant is expected to conceive, plan and implement programmes for the sustainable development of the Niger Delta area in the fields of transportation, including roads, health, water supply, electricity etc and to execute such other works and perform such other functions which in the opinion of the 4^th Defendant are required for the sustainable development of the Niger Delta area and its people

13. That the mandate of the 4^th Defendant affects me, the 2^nd plaintiff and our communities respectively.

14. That since the establishment of the 4^th Defendant in year 2000, the 2^nd Plaintiff and I have actively participated in the activities of the 4^th Defendant as they affect our respective communities.

15. That between 19^th and 21^st December, 2001, the 2^nd Plaintiff and I represented our respective communities in the 1^st ever held International Conference of Niger Delta Development Commission in Port-Harcourt, Rivers State.

16. That all the Ondo State Representatives that have served on the Board of the 4^th Defendant from year 2000 to 2015 when the last Board of the 4^th Defendant was dissolved have always discussed with me and the 2^nd Plaintiff as regards projects to be executed in our respective communities.

17. That it is the accepted practice, custom and tradition in the oil producing communities in Ilaje Local Government Area of Ondo State (of which my community and that of the 2^nd Plaintiff form a part) that the inputs of the communities will always reflect in the annual budget of the 4^th Defendant since its establishment in year 2000.

18. That I know as a fact that the 4^th Governing Board of the 4^th Defendant was dissolved sometime in July 2015 by the 1^st Defendant and no new Board has been constituted till date.

19. I also know as a fact that the three (3) top management members of the Board of the 4^th Defendant, namely, the Managing Director, the Executive Director ( Finance and Administration) and the Executive Director (Projects) were also relieved of their positions by the 1^st Defendant sometime in December, 2015.

20. That almost simultaneously, the 1^st Defendant in December, 2015 appointed one Mrs. Ibim Seminitari as the Acting Managing Director of the 4^th Defendant.

21. That the said Mrs. Ibim Seminitari has been the sole administrator of the 4^th Defendant since her appointment in December, 2015 owing to the fact that the Governing Board of the 4^th Defendant has not been constituted.

22. That on the 23/06/2016 I heard on the Nigerian Television Authority (NTA) Network News at about 9.00 pm that the 2016 budget of the 4^th Defendant was passed by the 2^nd Defendant.

23. That I enquired on 24/06/2016 whether the governing Board of the 4^th Defendant had been constituted by the 1^st Defendant as at the time the budget of the 4^th Defendant was passed by the 2^nd Defendant.

24. That I found out that the 1^st Defendant did not constitute the governing Board of the 4^th Defendant prior to the passage/approval by the 2^nd Defendant of the 2016 budget estimate of the 4^th Defendant.

25. That I know as a fact that the membership of the governing Board of the 4^th Defendant is statutorily provided for and it consists of 19 members which are:

    1. Chairman

    2. Abia State Representative

    3. Akwa Ibom State Representative

    4. Bayelsa State Representative

    5. Cross River State Representative

    6. Delta State Representative

    7. Edo State Representative

    8. Imo State Representative

    9. Ondo State Representative

    10. Rivers State Representative

    11. North Central Representative

    12. North East Representative

    13. North West Representative

    14. Oil Producing companies Representative

    15. Federal Ministry of Finance Representative

    16. Federal Ministry of Environment Representative

    17. The Managing Director

    18. Two Executive Directors

26. That I know as a fact that as at 23/06/2016 when the 2^nd Defendant passed/approved the 2016 estimate of expenditure and income of the 4^th Defendant, the Governing Board of the 4^th Defendant consisting of the membership stated in paragraph 22 above was not constituted by the 1^st Defendant.

27. That my enquiry at the National Assembly Complex on the 27th day of June, 2016 confirmed that:

    1. The 2016 Budget of the 4^th Defendant passed/approved by 2^nd Defendant was submitted to the 2^nd Defendant by the 4^th Defendant through the1^st Defendant.

    2. Mrs. Ibim Seminitari and other staff of the 4^th Defendant defended the 2016 budget of the 4^th Defendant before the NDDC Committee of the 2^nd Defendant.

28. That although the said Mrs. Ibim Seminitari and the other staff of the 4th Defendant are not members of the Governing Board of the 4^th Defendant, they nevertheless prepared the 2016 Budget which the 4^th Defendant submitted to the 2^nd Defendant through the 1^st Defendant.

29. That Ayo Akam, Esq of counsel in this suit informed me on 28/06/2016 at about 2.00 pm in his chambers at Trinity House, Mabushi, FCT, Abuja and I verily believed him of the following:

1. That the submission of the estimate of expenditure and income (Budget) of the 4^th Defendant is the exclusive duty of the governing Board of the 4^th Defendant.

2. That no staff, servants, officers, agents of the 4^th Defendant can perform the functions of the governing Board of the 4^th Defendant when the Board has not been constituted.

3. That Mrs. Ibim Seminitari who is the Acting Managing Director of the 4^th Defendant is not competent to perform the functions of the governing Board of the 4^th Defendant.

4. That the purported submission of the 2016 estimate of expenditure and income (Budget) of the 4^th Defendant to the 2^nd Defendant by the 4^th Defendant through the 1^st Defendant for passage/approval is a violation of section 18 (1) of the NDDC Act, 2000 and therefore illegal, null and void.

5. That the 1^st Defendant is not competent to perform the duties assigned by the NDDC Act, 2000 to the governing Board of the 4^th Defendant or to submit to the 2^nd Defendant for approval a budget of the 4^th Defendant not prepared or authorized by the Board of the 4^th Defendant.

30. That the 2016 budget of the 4^th defendant as passed by the 2^nd Defendant negatively affected the projects in the 2^nd plaintiff’s community, my community and the people of the oil producing communities of Ondo State who the 4^th Defendant serves.

31. That the vital projects affected include but not limited to:

    1. The 40 km Ugbo-Oghoye Road

    2. Ayetoro Shore protection

    3. Obe-Enikanoselu Sand filling/Land Reclamation

    4. Ikorigho Land Reclamation

    5. Odonla Water Project

    6. Awoye/Molutehin sand filling/ land reclamation

    7. Odun-Igho land reclamation

    8. Odun-Igho-Comprehensive Health centre

    9. Ugbo-Oghoye National Grid project

    10. Obe-Enikanoselu Mother and Child Hospital

32. That the above mentioned projects were either outrightly removed from the 2016 budget of the 4^th Defendant, not funded at all, or badly funded. The projects are found on the under-listed pages of the 2016 budget of the 4^th Defendant passed/approved by the 2^nd Defendant.

Project Page on the Budget Item Amt provided,2016

1. Ayetoro Shore protection page 13 item 146 Amt N50m

2. The 40km Ugbo-Oghoye Road page 21 item 250 Amt N100m

3. Obe-Enikanoselu sand filling page 272 item 6 (Ondo)Amt 150m

4. Ikorigho land reclamation REMOVED REMOVED REMOVED

5. Odonla Water project REMOVED REMOVED REMOVED

6. Awoye/Molutehin sand filling REMOVED REMOVED REMOVED

7. Odun-Igho land reclamation REMOVED REMOVED REMOVED

8. Odun-Igho Comprehensive Health page279,item107(Ondo)

Amt N25m

9. Ugbo-Oghoye National Grid page 276 item63(Ondo)Amt N40m

10. Obe-Enikanoselu Mother & Childpage279item114(Ondo) AmtN25m

( Otherwise called “Obe-Idapo”)

Attached and marked as Exhibit EA1 is a copy of the 2016 budget of the 4^th Defendant as passed/approved.

33. That this 2016 budget of the 4^th Defendant was passed/approved by the Senate (the upper legislative arm) of the 2^nd Defendant on Thursday-23/06/2016. Attached and marked as Exhibit EA 2 is a Certified Copy of the Votes and Proceedings of the Senate of the 2^nd Defendant on 23/06/2016.

34. That the absence of the governing Board of the 4^th Defendant is the major cause why the 2016 budget of the 4^th Defendant was prepared in this manner, submitted to and passed/approved by the 2^nd Defendant.

35. That I know as a fact that no budget of the 4^th Defendant since its establishment in year 2000 has negatively affected our communities such as this 2016 Budget.

36. That the staff, officers, servants and agents of the 4^th Defendant have commenced the process of operating, implementing and giving effect to the 2016 budget of the 4^th Defendant passed/approved by the 2^nd Defendant.

37. That the Design Department of the 4^th Defendant on Friday, June 24, 2016 (a day after the budget was passed by the 2^nd Defendant) published in the Nation Newspaper of June 24, 2016 at page 28 inviting the Consultants to show Expression of Interest in the 2016 Infrastructural Projects, Attached and marked Exhibit EA 3 is a Certified Copy of the Nation Newspaper Publication made by the 4^th Defendant.

38. That it is in the interest of justice to set aside the submission and passage/approval of the 2016 budget of the 4^th Defendant.

39. That it is also in the interest of justice to restrain all the defendants whether by themselves, their staff, officers, servants and agents and any person howsoever described from operating, implementing or giving effect in any manner to the purported 2016 budget of the 4^th Defendant.

40. That it is in the interest of justice to grant all the reliefs sought in the Originating Summons in this suit.

41. That I depose to this affidavit in good faith conscientiously believing the contents to be true and correct to the best of my knowledge and in accordance with the Oaths Act in force.

…………………..

D E P O N E N T

SWORN to at the Federal High Court Registry

Abuja this day of 2016

BEFORE ME

COMMISSIONER FOR OATHS

IN THE FEDERAL HIGH COURT OF JUSTICE

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

SUIT NO:………………..

BETWEEN:

1. COMRADE EGANOSI AYENUBERU}

2. APOSTLE ANDREW BODE AWALA }………………………….PLAINTIFFS

(for themselves and on behalf of Odonla and

Odun-Igho communities of the oil producing area

Of Ilaje Local Government, Ondo State)

AND

PRESIDENT, FEDERAL REPUBLIC OF NIGERIA

THE NATIONAL ASSEMBLY,

FEDERAL REPUBLIC OF NIGERIA DEFENDANTS/

1. THE ATTORNEY-GENERAL OF THE FEDERATION RESPONDENTS

2. NIGER DELTA DEVELOPMENT COMMISSION

(NDDC)

MOTION EX-PARTE

BROUGHT PURSUANT TO ORDER 26 RULES (8)(1), (9) AND (10) AND ORDER 56(1) OF THE FEDERAL HIGH COURT (CIVIL PROCEDURE) RULES, 2009 AND UNDER THE INHERENT JURISDICTION OF THIS HONOURABLE COURT.

TAKE NOTICE that this Honourable Court shall be moved on…………… the ………………..day ……of ………………2016, at the hour of 9 0’clock in the forenoon or so soon thereafter as counsel shall be heard on behalf of the Plaintiffs/Applicants praying this Honourable Court for the following:

1. AN ORDER of interim injunction restraining the Defendants/Respondents whether by themselves, their agents, officers, staff and or servants from operating, implementing and or giving effect in any manner howsoever described to the 2016 estimates of expenditure and income of the 4^th Defendant passed/approved by the 2^nd Defendant on the 23^rd day of June, 2016, pending the determination of the motion on notice.

2. AND for such further order (s) as this Honourable Court may deem fit to make in the circumstance.

THE GROUNDS FOR THE MOTION:

1. At all material times to the passage/approval of the purported 2016 estimate of expenditure and income of the 4^th Defendant by the 2^nd Defendant, there was no Board of the 4^th Defendant in place, the previous Board having been dissolved by the 1^st Defendant in July 2015.

2. The 2016 estimate of expenditure and income passed/approved for the 4^th Defendant by the 2^nd Defendant on the 23^rd day of June, 2016 was neither prepared nor submitted to the 2^nd Defendant by the Board of the 4^th Defendant.

3. The submission of the purported 2016 estimate of expenditure and income of the 4^th Defendant to the 2^nd Defendant by a person or persons other than a Board duly constituted by the 1^st Defendant in line with the provisions of section 2(2) (a) and (b) of the Niger Delta Development Commission (Establishment etc) Act, 2000, (NDDC Act, 2000) was done in complete violation of the provisions of Section 18(1) of the Act.

4. The condition precedent to the passage/approval of the estimate of expenditure and income of the 4^th Defendant was not fulfilled before the same was passed and or approved by the 2^nd Defendant.

5. The purported passage/ approval of the 2016 estimate of expenditure and income by the 2^nd Defendant for the 4^th Defendant was ultra vires the provisions of section 18 (1) of the Niger Delta Development Commission (Establishment etc) Act, 2000, (NDDC Act, 2000).

6. Given the provisions of Sections 8, 9 (2), 12 (2 & 3), 18, 20 of the NDDC Act, 2000, the functions or duties of the Board of the 4^th Defendant cannot be performed by officers, servants, staff and agents of the 4^th Defendant nor can they be performed by the 1^st Defendant.

7. The Board of the 4^th Defendant having not been constituted at the material time, Ondo State, particularly the Plaintiffs and the communities represented in this suit were not represented in the deliberations leading to the purported 2016 estimate of expenditure and income passed/approved by the 2^nd Defendant on 23/6/2016.

8. The purported 2016 estimates of expenditure and income of the 4^th Defendant as passed/approved by the 2^nd Defendant on 23/6/2016 does not protect the interest of the Plaintiffs and their communities for which the 4^th Defendant was established.

9. Vital projects previously approved for the Plaintiffs’ communities were either out rightly removed from the 2016 budget of the 4^th Defendant, not funded at all, or badly funded.

10. The purported 2016 estimate of expenditure and income of the 4^th Defendant passed/approved by the 2^nd Defendant for the 4^th Defendant does not make adequate provisions for Ondo State and the Plaintiffs’ communities.

11. The staff, officers, servants and agents of the 4^th Defendant have nevertheless commenced the process of operating, implementing and giving effect to the 2016 budget of the 4^th Defendant as passed/approved and unless restrained by an order of this court, they would proceed to operate, implement and or give effect to the budget before the hearing of the motion on notice.

12. The Plaintiffs and the communities represented by them in this suit would be badly affected by the implementation of the said 2016 estimate of expenditure and income of the 4^th Defendant more so as there is no Board in place to supervise the implementation and /or enter into the necessary contracts for the implementation as required under Section 8(a-f) of the Niger Delta Development Commission (Establishment etc) Act, 2000 (NDDC Act, 2000).

Dated the……,,,,day of July, 2016.

————————–

Dr. Benson Enikuomehin

Ayo Akam, Esq

Femi Emmanuel Emodamori, Esq

Godwin E. Adole, Esq

A. Olu Ogidan, Esq

Oluseye Judes Olujimi, Esq

Ifedayo I. Olanipekun, Esq

Maryfrances Orji (Miss)

Emilia Chinasa Attama (Miss)

Amenawon Aigbogun (Miss)

Chiamaka Azozie (Miss)

(Plaintiffs/Applicants’ Counsel)

Ayo J. Akam & Associates

Trinity House,

Plot 943, Cadastral Zone B06,

Behind Ministry of Works,

Mabushi, Abuja.

08122233445

08069327803, 07031062826

IN THE FEDERAL HIGH COURT OF JUSTICE

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

SUIT NO:………………..

BETWEEN:

COMRADE EGANOSI AYENUBERU

2 APOSTLE ANDREW BODE AWALA PLAINIFFS/APPLICANTS

(For themselves and on behalf of Odonla and

Odun-Igho communities of the oil producing area

Of Ilaje Local Government Area, Ondo State)

AND

PRESIDENT, FEDERAL REPUBLIC OF NIGERIA

THE NATIONAL ASSEMBLY,

FEDERAL REPUBLIC OF NIGERIA DEFENDANTS/

1. THE ATTORNEY-GENERAL OF THE FEDERATION RESPONDENTS

2. NIGER DELTA DEVELOPMENT COMMISSION

(NDDC)

AFFIDAVIT IN SUPPORT OF MOTION EX-PARTE

I, Comrade Eganosi Ayenuberu, Male, Christian, Businessman, Nigerian Citizen of Odonla Community in Ugbo Political Ward 5, Ilaje Local Government Area of Ondo State do hereby make oath and state as follows:

1. That I am the 1^st Plaintiff in this suit and as such very familiar with the facts of this case.

2. That I have the consent and authority of the 2^nd Plaintiff to depose to this affidavit.

3. That the 2^nd Plaintiff and I are from Odu-Igho and Odonla Communities in Ugbo political wards 6 & 5 in the oil producing areas of Ilaje Local Government Area of Ondo State respectively.

4. That while I am a community and political leader of Odonla, the 2^nd Plaintiff is both a religious and community leader of Odun-Igho community which are parts of the Niger Delta Area of Ondo State.

5. The 2^nd Plaintiff and I instituted this action for ourselves and on behalf of Odun-Igho and Odonla communities respectively in the oil producing area of Ilaje Local Government, Ondo State.

6. That the 1^st Defendant is a creation of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and is statutorily empowered with the responsibility of appointing members of the Governing Board and supervising the Commission.

7. The 2^nd Defendant is created by the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and is saddled with the responsibility of confirming the appointment of the Governing Board and approving the annual or any other budgets of the 4^th Defendant.

8. The 3^rd Defendant is a creation of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and is the Chief Law Officer of the Federation and Minister of Justice.

9. The 4^th Defendant is an agency of the Federal Republic of Nigeria and a creation of the enactment of the 2^nd Defendant by the Niger-Delta Development Commission (Establishment etc) Act, 2000, Act No.6, Laws of the Federation of Nigeria.

10. That Ilaje Local Government (particularly Ugbo Communities) is the ONLY oil producing Local Government Council in Ondo State.

11. I know as a fact that the functions and powers of the 4^th Defendant include:

to execute such works and such functions which in the opinion of the 4^th Defendant are required for the sustainable development of the Niger Delta area and its people.

12. That I was informed by Ayo Akam, Esq of counsel on 28/06/2016 in his chambers at Trinity House, Mabushi FCT, Abuja at about 2.00pm and I verily believe him that:

    1. The 4^th Defendant was established primarily to cater for and intervene in providing for the needs of the people and communities within the Niger-Delta Area.

    2. That the activities of the 4^th Defendant are solely geared towards meeting the challenges the Niger Delta people face as a result of oil exploration and exploitation.

    3. In line with section 7 (1) particularly paragraphs b & j, the 4^th Defendant is expected to conceive, plan and implement programmes for the sustainable development of the Niger Delta area in the fields of transportation, including roads, health, water supply, electricity etc and to execute such other works and perform such other functions which in the opinion of the 4^th Defendant are required for the sustainable development of the Niger Delta area and its people.

13. That the mandate of the 4^th Defendant affects me, the 2^nd plaintiff and our communities respectively.

14. That since the establishment of the 4^th Defendant in year 2000, the 2^nd Plaintiff and I have actively participated in the activities of the 4^th Defendant as they affect our respective communities.

15. That all the Ondo State Representatives that have served on the Board of the 4^th Defendant from year 2000 to 2015 when the last Board of the 4^th Defendant was dissolved have always discussed with me and the 2^nd Plaintiff as regards projects to be executed in our respective communities.

16. That it is the accepted practice, custom and tradition in the oil producing communities in Ilaje Local Government Area of Ondo State (of which my community and that of the 2^nd Plaintiff form a part) that the inputs of the communities will always reflect in the annual budget of the 4^th Defendant since its establishment in year 2000.

17. That I know as a fact that the 4^th Governing Board of the 4^th Defendant was dissolved sometime in July 2015 by the 1^st Defendant and no new Board has been constituted till date.

18. I also know as a fact that the three (3) top management members of the Board of the 4^th Defendant, namely, the Managing Director, the Executive Director ( Finance and Administration) and the Executive Director (Projects) were also relieved of their positions by the 1^st Defendant sometime in December, 2015.

19. That almost simultaneously, the 1^st Defendant in December, 2015 appointed one Mrs. Ibim Seminitari as the Acting Managing Director of the 4^th Defendant.

20. That the said Mrs. IbimSeminitari has been the sole administrator of the 4^th Defendant since her appointment in December, 2015 owing to the fact that the Governing Board of the 4^th Defendant has not been constituted.

21. That on the 23/06/2016 I heard on the Nigerian Television Authority (NTA) Network News at about 9.00 pm that the 2016 budget of the 4^th Defendant was passed by the 2^nd Defendant.

22. That I enquired on 24/06/2016 whether the Governing Board of the 4^th Defendant had been constituted by the 1^st Defendant as at the time the budget of the 4^th Defendant was passed by the 2^nd Defendant.

23. That I found out that the 1^st Defendant did not constitute the Governing Board of the 4^th Defendant prior to the passage/approval by the 2^nd Defendant of the 2016 budget estimate of the 4^th Defendant.

24. That I know as a fact that the membership of the Governing Board of the 4^th Defendant is statutorily provided for and it consists of 19 members which are:

    1. Chairman

    2. Abia State Representative

    3. AkwaIbom State Representative

    4. Bayelsa State Representative

    5. Cross River State Representative

    6. Delta State Representative

    7. Edo State Representative

    8. Imo State Representative

    9. Ondo State Representative

    10. Rivers State Representative

    11. North Central Representative

    12. North East Representative

    13. North West Representative

    14. Oil Producing companies Representative

    15. Federal Ministry of Finance Representative

    16. Federal Ministry of Environment Representative

    17. The Managing Director

    18. Two Executive Directors

25. That I know as a fact that as at 23/06/2016 when the 2^nd Defendant passed/approved the 2016 estimate of expenditure and income of the 4^th Defendant, the Governing Board of the 4^th Defendant consisting of the membership stated in paragraph 23 above was not constituted.

26. That Ayo Akam, Esq of counsel in this suit informed me on 28/06/2016 at about 2.00 pm in his chambers at Trinity House, Mabushi, FCT, Abuja and I verily believed him of the following:

1. That submission of the estimate of expenditure and income of the 4^th Defendant is the exclusive duty of the Governing Board of the 4^th Defendant.

2. That it is also the exclusive duty of the said Board to supervise the operation and or implementation of the budget when approved, enter into the necessary contracts and keep the accounts and records relating thereto.

3. That no staff, servants, officers, agents of the 4^th Defendant can perform the functions of the Governing Board of the 4^th Defendant when the Board has not been constituted.

4. That Mrs. Ibim Seminitari who is the acting Managing Director of the 4^th Defendant is not competent to perform the functions of the Governing Board of the 4^th Defendant.

5. That the purported submission of the 2016 estimate of expenditure and income of the 4^th Defendant to the 2^nd Defendant for passage/approval is a violation of section 18 (1) of the NDDC Act, 2000 and therefore illegal, null and void.

6. That the 1^st Defendant is not competent to perform the duties assigned by the NDDC Act, 2000 to the Governing Board of the 4^th Defendant.

27. That my enquiry at the National Assembly complex on Monday-27^th June, 2016 confirmed that one Mrs. Ibim Seminitari and other staff of the 4^th Defendant presented to and defended the 2016 budget of the 4^th Defendant before the NDDC Committee of the 2^nd Defendant.

28. That the said Mrs. Ibim Seminitari and the other staff of the 4th Defendant are not members of the Governing Board of the 4^th Defendant.

29. That the 2016 budget of the 4^th defendant as passed by the 2^nd Defendant negatively affects the projects in the 2^nd plaintiff’s community, my community and the people of the oil producing communities of Ondo State who the 4^th Defendant serves.

30. That the vital projects affected include but not limited to:

    1. The 40 km Ugbo-Oghoye Road

    2. Ayetoro Shore protection

    3. Obe-Enikanoselu Sand filling/Land Reclamation

    4. Ikorigho Land Reclamation

    5. Odonla Water Project

    6. Awoye/Molutehin sand filling/ land reclamation

    7. Odun-Igho land reclamation

    8. Odun-Igho-Comprehensive Health centre

    9. Ugbo-Oghoye National Grid project

    10. Obe-Enikanoselu Mother and Child Hospital

31. That the above mentioned projects were either outrightly removed from the 2016 budget of the 4^th Defendant, not funded at all, or badly funded. The projects are found on the under-listed pages of the 2016 budget of the 4^th Defendant passed/approved by the 2^nd Defendant.

Project Page on the Budget Item Amt provided,2016

1. Ayetoro Shore protection page 13 item 146 Amt N50m

2. The 40km Ugbo-Oghoye Road page 21 item 250 Amt N100m

3. Obe-Enikanoselu sand filling page 272 item 6 (Ondo) Amt 150m

4. Ikorigho land reclamation REMOVED REMOVED REMOVED

5. Odonla Water project REMOVED REMOVED REMOVED

6. Awoye/Molutehin sand filling REMOVED REMOVED REMOVED

7. Odun-Igho land reclamation REMOVED REMOVED REMOVED

8. Odun-Igho Comprehensive Health page 279 item 107(Ondo) Amt N25m

9. Ugbo-Oghoye National Grid page 276 item 63 (Ondo) Amt N40m

10. Obe-Enikanoselu Mother & Child page 279 item 114(Ondo) AmtN25m ( Otherwise called “Obe-Idapo”)

Attached and marked as Exhibit EA1 is a copy of the 2016 budget of the 4^th Defendant as passed/approved.

32. That this 2016 budget of the 4^th Defendant was passed/approved by the Senate (the upper legislative arm) of the 2^nd Defendant on Thursday-23/06/2016. Attached and marked as Exhibit EA 2 is a certified copy of the Votes and Proceedings of the Senate of the 2^nd Defendant on 23/06/2016.

33. That the absence of the Governing Board of the 4^th Defendant is the major cause why the 2016 budget of the 4^th Defendant was prepared in this manner, submitted to and passed/approved by the 2^nd Defendant.

34. That I know as a fact that no budget of the 4^th Defendant since its establishment in year 2000 has negatively affected our communities such as this 2016 Budget.

35. That the staff, officers, servants and agents of the 4^th Defendant have commenced the process of operating, implementing and giving effect to the 2016 budget of the 4^th Defendant passed/approved by the 2^nd Defendant.

36. That the Design Department of the 4^th Defendant on Friday, June 24, 2016 (a day after the budget was passed by the 2^nd Defendant) published in the Nation Newspaper of June 24, 2016 at page 28 inviting the Consultants to show Expression of Interest in the 2016 Infrastructural Projects, Attached and marked Exhibit EA 3 is a Certified Copy by the National Library of Nigeria, FCT Branch, Area 2, Garki, Abuja of the Nation Newspaper Publication made by the 4^th Defendant.

37. That we have filed an Originating Summons before this court to set aside the submission of the 2016 budget of the 4^th Defendant made by one Mrs. Ibim Seminitari to the 2^nd Defendant and the eventual passage/approval of same by the 2^nd Defendant.

38. That the said Originating Summons also seeks to restrain all the defendants from operating, implementing or giving effect in any manner whatsoever to the purported 2016 budget of the 4^th Defendant.

39. That there are serious issues to be determined in the Originating Summons, including the issue whether given the provisions of Sections 8, 9 (2), 12 (2 & 3), 18, 20 of the NDDC Act, 2000, the functions or duties of the Board of the 4^th Defendant can be performed by officers, servants, staff and agents of the 4^th Defendant or by the 1^st Defendant.

40. That the court is to further determine the issue whether the submission of the 2016 budget of the 4^th Defendant without the Board presenting same to the 2^nd Defendant and the eventual passage/approval of same by the 2^nd Defendant is not liable to be set aside for being illegal, null and void.

41. That operating, implementing and or giving effect to the 2016 estimate of expenditure and income of the 4^th Defendant during the pendency of this suit would not only foist a fait accompli on this court but would also occasion an irretrievable damage on us as Plaintiffs and on the communities represented by us in this suit.

42. That the damage we shall suffer as Plaintiffs and which the communities represented by us in this suit shall also suffer, if the Defendants are not restrained by an order of this court and they proceed to implement the budget, cannot be adequately compensated in damages.

43. That there is the likelihood of the claims made by us in this suit succeeding especially as the (3) top management positions of the 4^th Defendant namely, the Managing Director, the Executive Director (Finance and Administration) and the Executive Director (Projects) are also vacant.

44. That we, together with the communities represented by us, stand the risk of being badly affected if the budget is implemented during the pendency of this suit.

45. That the projects removed from the budget, ignored and or underfunded in the budget were initiated to rescue our communities from hazards which have claimed the lives of many in our communities.

46. That the balance of convenience is in our favour as the Defendants have nothing to lose if the implementation of the budget is restrained, pending the determination of the motion on notice.

47. That the order of this court is needed urgently to keep matters in status quo until the motion on notice already filed by us is determined by this court.

48. That the facts of this case disclose real urgency requiring the urgent intervention of the court.

49. That the orders of this court are needed to preserve the res of this case, which in actual fact is our right and that of the communities represented by us in this suit to be duly represented in all deliberations towards the preparation of an acceptable 2016 budget for the passage/approval of the 2^nd Defendant.

50. That our conduct in bringing this application is not in any way reprehensible nor are we guilty of any delay in filing this application.

51. That as Plaintiffs in this suit, we undertake to compensate the Defendants in damages in the event the Defendants suffer any unjustifiable damage by virtue of the order sought in this application.

52. That we are prepared to give further undertaking for damages as may be directed by this Honourable court should the court find the above undertaking unsatisfactory.

53. That it is in the interest of justice for this court to order the maintenance of status quo and to protect the res of this case by granting this application

54. That I depose to this affidavit in good faith conscientiously believing the contents herein to be true and correct to the best of my knowledge and in accordance with the Oaths Act in force.

…………………..

D E P O N E T

SWORN to at the Federal High Court Registry

Abuja this day of 2016

BEFORE ME

COMMISSIONER FOR OATHS