16 December 2012

Nigeria: Govs Vs FG - the SWF U.S.$1 Billion Question

In the last few years, filing a suit at the Supreme Court has turned to the proverbial magic wand that governors of the 36 states brandish at will with a view to getting the Federal Government to succumb to their demands.

The Nigeria Governors Forum, NGF, now provides a veritable platform for them to galvanize funds to pay Senior Advocates of Nigeria (SANs) that often jostle to be included in the list of "appearing with", a legal term that has become as lucrative as defending oil subsidy fraud suspects.

Most of the governors, who have turned Abuja to a second home where they meet to decide on issues to bug the apex court with, always set aside their political differences to embark on such seeming wild-goose chase; however, the will-power to pursue 95 per cent of the cases they have filed before the Supreme Court, of late, remains questionable.

It is not an uncommon sight to see over seven SANs announcing their appearances for the governors, a situation that raises questions as to where the funds to pay the lawyers emanate from, bearing in mind the deplorable infrastructure in most of the states.

Remarkably, it costs some N100million to secure the services of each of the SANs in the top flight - while others charge N60-N70million.

Yes, it may be argued that the governors also help to develop the law by embarking on their ever recurring judicial escapades; nevertheless, a situation where such ventures are often geared towards an "out-of court-settlement" makes nonsense of such argument.

For instance, barely three weeks after the Supreme Court fixed May 9, 2013, to commence hearing on one of the suits entered before it by the governors in order to stop the FG from transferring $1 billion from the "Excess Crude Account" to a new account to be known as the "Sovereign Wealth Fund," the same governors, on Tuesday, December 11, filed yet another suit where it accused the FG of persistently using the Nigerian National Petroleum Corporation, NNPC, to illegally deduct revenue accruing to the country on the guise of using same to fund the fuel subsidy regime.

It is not as if the action is bad in itself; what is, however, worrisome is the motive behind the action.

On the first case, a panel of the apex court, presided over by Justice Chukwuma Eneh, decided to go ahead and hear the suit on its merit, after months of horse-trading and legal dilly-dally between the governors and the FG on the possibility of striking an out-of-court deal, a move that would have reduced the process at the Supreme Court to nothing.

The governors had, in the suit they filed before the apex court on October 23, 2011, sought an order declaring the planned creation of the "Sovereign Wealth Fund" as illegal and unconstitutional.

They are praying the court to issue an order to effect that all sums standing to the credit of the said "Excess Crude Account" (or any account replacing same by any name howsoever) be paid into the court or be otherwise secured as the court may deem fit pending the hearing and determination of the substantive suit.

The governors maintained that unless the order of injunction was granted, the FG would continue to disregard, disrespect and ignore the pending suits before the Supreme Court.

The FG previously told the court via an affidavit that was deposed to by one of its lawyers, Mr Uchenna Njoku, that "the parties explored the possibility of an amicable settlement of the issues discernible in the case and mutually sought several adjournments of the case to enable them to conclude the settlement options and report same to the court. But when it became clear that the plaintiffs/applicants were not amenable to the settlement options, discussions in this regard were called off."

The Federal Government had, through its lead counsel then, Mr Austin Alegeh, SAN, accused the state governors of mischief, insisting that they took part in the deliberations of the National Economic Council where the decision to transfer the $1 billion from the Excess Crude Account to the SWF was taken.

It stressed that the states had been receiving their share from the money, saying their decision to frustrate the planned creation of the SWF was borne out of insincerity.

While asking the Supreme Court to refuse the application by the states to stop the Federal Government from transferring $1 billion from the Excess Crude Account to the SWF, counsel to the Federal Government said his client would run into problem if the application was granted as prayed by the governors.

The FG contended that the day-to-day running of the nation's economy would be put at risk if the application was granted as sought by the plaintiffs.

However, lead counsel to the governors, Chief Adegboyega Awomolo, SAN, noted that his clients were forced to approach the apex court for redress in view of the fact that the FG, and its officers, had, consistently, and in total disregard for the pending suit, withdrawn, utilized, disbursed and allocated funds from the account.

He alleged that the Federal Government had nearly depleted the sum of N5.51 trillion being the balance in the account as at 2008 when the case was instituted.

The plaintiffs' counsel told the court that the defendant drew the irk of his clients (governors) when it announced its intention to withdraw, disburse and utilize another one billion U.S dollars from the credit balance in the account, an action, he said, would further amount to a sheer disregard to the subsisting suit and disrespect for the authority of the apex court.

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