13% Derivation: See the 2016 Full Court Judgment Mandating Delta State Government to Publish Information on how it uses its Allocation

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It is Six years after the judgment of the High Court of Delta State compelling the state government to account for the 13% derivation fund it received from the Federation Account from 2006 till date and claimants are still demanding compliance with the court orders by the Governor and Speaker of the House of Assembly.

 

 

Recall that the claimants, Olukunle Ogheneovo Edun Esq., Michael Ukusare Esq., Okiroro Iki-ebieroma Esq., Tega Edema Esq. sought to have the governor and the assembly speaker fully disclose the information about the fund.


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The derivation fund comes from the federation revenue to oil-producing communities through the state governments as enshrined in section 162, sub-section 2 of the Nigerian constitution.

“The state government had aggressively defended the suit but lost. All attempts at complying with the Judgment was frustrated by the Delta State Government.” Mr. Edun said.

The suit, marked W/377/2015 began in 2015.

The enrolment of judgment reads in part:

1.Whether by virtue of the joint community reading of the provisions of sections 1(1), 3(1) and 4 of the Freedom of Information Act 2011, the 1st Defendant (being a public officer) is not under a legal obligation to provide the Claimants with the information requested as contained in letter dated 15th September, 2015, to wit: a. The constitutional basis for allocating only 50% of the derivation funds from Federation account to DESOPADEC. b. The constitutional basis for retaining the remaining 50% for purposes unknown. c. Comprehensive account of how the other 50% not allocated to DESOPADEC, has been utilized and list of projects utilized for. d. The total amount that has so far been paid to Delta State from the Federation Account prior to the date of Commencement of the DESOPADEC Law (August 1, 2006) and thereafter till date.

2. Whether by a joint reading of the proviso to section 162 of the Constitution of the Federal Republic of Nigeria and other enabling provisions, the spirit of the said proviso envisaged the sharing/distribution of the 13% der vation funds in respect “natural resources” from the Federation Account, to communities where natural resources (oil & gas) are not produced?

3. Whether the 1 and 2nd Defendants have necessary vires to make laws/policies for the allocation of funds meant for the development of the natural resources (oil) producing areas of Delta State to other communities or localities within Delta State which are not natural resource (oil) producing communities.

AND THE CLAIMANTS CLAIM AGAINST THE DEFENDANTS AS FOLLOWS:

A DECLARATION that by virtue of the provisions of sections 1(1), (3), 3(1) and 4 of the Freedom of Information Act 2011, of the Freedom of Information Act, the 1 Defendant (being a public officer is under a legal obligation to provide the Claimants with the information requested as contained in letter dated 15th September, 2015, to wit:
a. The constitutional basis for allocating only 50% of the derivation funds from Federation account to DESOPADEC.

b. The constitutional basis for retaining the remaining 50%

c. Comprehensive account of how the other 50% not allocated to DESOPADEC, has been utilized and list of projects utilized for. d. The total amount that has so far been paid to Delta State from the Federation Account prior to the date of Commencement of the DESOPADEC Law (August 1, 2006) and thereafter till date.

A DECLARATION that the spirit of the proviso to section 162 of the Constitution of the Federal Republic of Nigeria 1999, as amended, never envisaged the sharing/distribution of the 13% derivation funds in respect “natural resources” from the Federation Account, to communities where natural resources (oil & gas) are not produced, and using the 13% derivation funds or any part thereof for any purpose other than for the development of the oil producing areas of Delta State, is unconstitutional, illegal and ultra vires the 1 and 2nd Defendants.
A DECLARATION that the 1st and 2nd Defendants do not have the necessary vires to make laws/policies for the re-allocation of funds meant for the development of the natural resources (oil) producing areas of Delta State to other communities or localities within Delta State which are not “natural resource” producing communities.
A DECLARATION that the 1 Defendant receives, manages, administers and/or controls the 13% Derivation Funds from the Federation Account, as a TRUSTEE for the Oil Producing Communities of Delta State.
An ORDER COMPELLING the 1st Defendant to the Claimants the information requested (as stated in relief 1 above) within 14 days from the date of delivery of judgment in this case.
An ORDER of injunction restraining the 1st and 2nd Defendants by themselves and/or through their privies, agents, officials, subordinates or under any other guise from further using, apportioning, allocating and/or sharing all or and proceeds, incomes and benefits being or part of the 13% derivation funds from the Federation Account, to any or projects, schemes and matters that do not pertain to the oil producing communities of Delta State.
Coming up for hearing and determination before His Lordship Hon. Justice P.O. Onajite-Kuejubola (Mrs.) of High Court No. 1 Warri on Monday the 4th day of July 2016, the court having heard O.O. Edun, counsel for the claimants, E.U. Edomwonyi, counsel for the 1st Defendant and O. Akpobasa, counsel for the 2nd Defendant who all argued the application, adjudged as follows:

“Consequently therefore, I hereby make the following orders:

1) A declaration is hereby made that by virtue of the provisions of Section 1(1)(3), 3(1) and 4 of the Freedom of Information Act 2011 (FO1 Act 2011), the 1st Defendant being a public officer is under a legal obligation to provide the claimants with the information requested as contained in the letter dated 15th September 2015 to wit:

1) The constitutional basis for allocating only 50% of the derivation funds from the Federation account to DESOPADEC.

2) The constitutional basis for retaining the remaining 50% for purposes unknown.

3) Comprehensive account of how the other 50% not allocated to DESOPADEC, has been utilized and list of projects utilized for.

4) The total amount that has so far been paid to Delta State from the Federation Account prior to the date of Commencement of the DESOPADEC Law (August 1, 2006) and thereafter till date.

I make no order as to reliefs 2, 3, 4, 5 and 6 of the order sought by the claimants herein, having held that they are not entitled to such declarations as the compelling and injunctive relief as in the Originating Summons.”

P.O. ONAJITE-KUEJUBOLA (MRS) (Judge)

The enrolment order was made on the 4th July, 2016.

One of the most important powers of a court of law is its power to give orders. It remains be seen whether the executive and legislative arms of Delta State government will give the judiciary the much needed respect by obeying the court orders without further delay.


Call Bridget Edokwe Esq on 08060798767 or send your email to ngbarrister@gmail.com



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