22 May 2012

Nigeria: SWF - FG, States Settlement Bid Fails

The Supreme Court Monday in Abuja fixed September 25 for the definite hearing of the suit filed by governors of the 36 states of the federation against the Federal Government over the Sovereign Wealth Fund (SWF).

This followed the failure of the federal and state governments to reach amicable out-of-court settlement.

The apex court had on March 26 adjourned the matter to enable the 36 states and the Federal Government settle the dispute on the Excess Crude Account (ECA) out of court.

The states are challenging the legality of the ECA and the decision of the Federal Government to transfer $1 billion from the account to the SWF.

Counsel for the governors, Chief Adegboyega Awomolo (SAN), had told the apex court that they had done all that was required to achieve amicable settlement, but the Attorney General of the Federation (AGF) had since the last adjourned date failed to create the time to meet with them.

He therefore asked the apex court to fix a date for a definite hearing of the suit so that the issue could be settled legally once and for all.

He said that even when judgment had been delivered, the Federal Government could still opt for settlement if it so desired.

"We are constrained that this court needs to assist us to hear our matter in the interest of justice," Awomolo said.

The Federal Government lawyer, Mr. Austin Alegeh (SAN), agreed that the apex court should proceed to hear the matter since the plaintiffs could no longer exercise patience for the settlement deal already on course to materialise.

He said that several meetings had been held between the governors and the Federal Government and that almost all the issues had been resolved.

He also said that outstanding issues could still be resolved out of court by the parties.

After Alegeh had addressed the court, Awomolo told the court that he had an application seeking the court's order to restrain the Federal Government from making further withdrawals from the ECA pending the time the matter would be determined.

He revealed that the minister of finance even threatened to withdraw $2 billion from the said account last week.

According to Awomolo, as at 2008, the outstanding balance of the ECA stood at $20 billion, but added that as at yesterday, the account had been depleted to $3.1 billion.

"Why we are here, we thought that further depletion on the account should stop," he said.

But Alegeh said that in the first instance, he had an application objecting to the jurisdiction of the apex court to entertain the governors' suit.

He said: "This court has no jurisdiction because the case is between the Federal Government and the other two tiers of government. The best court to hear the matter is the Federal High Court."

He further stated that any money taken from ECA was shared amongst the three tiers of government.

"Governors should make an undertaking not to demand for withdrawal from the Excess Crude Account to share any time there is short fall in the allocation before the next adjourned date of September 25," he said.

The seven-man panel, led by the Chief Justice of Nigeria (CJN), Dahiru Musdapher, slated September 25 to hear all the applications and the substantive suit.

Musdapher directed all parties to file all necessary applications and responses before the adjourned date.

The governors had gone to court to, among others, seek an order compelling the Government of the Federation to pay into the Federation Account N5.51 trillion being the balance of the sum which accrued to the Government of the Federation during the period 2004 and 2007 from the proceeds of crude oil sales, petroleum profits tax and oil royalties which it classified as "excess crude proceeds" and "excess PPT and Royalties" and paid into an account which was styled "Excess Crude Account".

They also asked the court to order the Federal Government to transfer to the Federation Account all sums standing to the credit of the "Excess Crude Account".

The governors are also challenging the action, conduct and activities of the Federal Government with respect to the management and operation of the Federation Account.

The parties in this suit had at various times exploited avenues for an out-of-court settlement and indeed agreed on a settlement but the settlement so reached could not be implemented and was also not entered as the judgment of the court.

Consequently, the case was set down for trial and parties were directed to exchange briefs.

In a counter affidavit filed by the law firm of Alegeh and Co., the Federal Government said efforts to find a common ground did not succeed.

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