Court Hears Suit Against Akwa-ibom Govt, Others On 13% Derivation Refunds May 24

A Federal High Court sitting in Lagos has fixed May 24, to hear a suit filed by a former counsel to the Economic and Financial Crimes Commission (EFCC), Nkereuwen Mark Anana, against the Akwa-Ibom State Governor, Mr. Udom Gabriel Emmanuel and two others over the spending of 13 percent derivation refunds.

Listed as the Governor’s co-respondents in the suit numbered FHC/L/CS/423/23, are: Accountant General of the State and Accountant-General of the Federation.

In the suit, Anana is asking the court to determine the followings: “Whether Akwa lbom State is a public institution that by virtue of Section 2 (1) and (2) of the Freedom of Information Act 2011, is entitled to keep information about all her activities, operations and businesses.

“Whether by virtue of Sections 2 (3)(v) of the Freedom of information Act 2011, the Government of Akwa-Ibom State headed by Governor Udom Gabriel Emmanuel is entitled to document information relating to receipts and expenditure of public or other funds of the State.

“Whether the plaintiff is by virtue of the Freedom of information Act 2011, entitle to seek before the Court information from the Akwa Ibom State Government under the leadership of Governor Udom Gabriel Emmanuel, on all her activities, operations and businesses.

“Whether the plaintiff is entitled to seek before the court information from Akwa-Ibom State Government on the income and expenditure of the 13 percent oil derivation refunds aid by the Federal Government of Nigeria to the state Government, under the leadership of Governor Udom Gabriel Emmanuel.

“Whether the plaintiff is entitled to seek before the Court information from Akwa Ibom State Government on the income and expenditure whatsoever derivable by the State Government from Internally Generated Revenue (IGR) Federal Monthly allocation, Ecological Fund etc.

“Whether the plaintiff is entitled to seek before the court information from Akwa ibom State Government on the capital projects embark upon by the State government under the leadership of governor Udom Gabriel Emmanuel, the location of the projects, the cost of the projects and the contractors of those projects from inception till date.”

Anana states that if the above are determined in affirmative, urges the court for the following reliefs among others: “a declaration of the Court that by Sections 2 (3)(v) of the Freedom of Information Act, he is entitled to seek before the Court information from Akwa Ibom State Government on the income from Internally Generated Revenue of Akwa Ibom State, Monthly Federal allocation to Akwa Ibom State, Ecological fund paid to Akwa Ibom State and 13 percent oil derivation refunds from the Federal Government of Nigeria to Akwa Ibom State Government under the leadership of Governor Udom Gabriel Emmanuel.

“An order of the court compelling the Accountant-General of the Federation, to disclose to him, in writing, the total amount of money paid as 13 percent oil derivations refund and Federal Monthly allocation to Akwa lbom State Government, under the leadership of Udom Gabriel Emmanuel by the administration of President Muhammadu Buhari.

“An order of the court compelling the Governor of Akwa-Ibom State, the State Accountant General, to disclose to him in writing, the total amount of money generated internally, Federal Monthly allocation from Federal Government of Nigeria and 13 percent oll derivation refunds realized and paid to Akwa-ibom State within the dispensation of Governor Udom Gabriel Emmanuel as Governor of Akwa lbom State.

“An order of the Court compelling the Governor of Akwa-Ibom State, the State Accountant-General, to disclose to him in writing any other money received by the State Government under the leadership of Governor Udom Gabriel Emmanuel.

“An order of the Court compelling the Governor of Akwa-ibom State, the State Accountant General, to disclose to him in writing the ‘Capital Projects’ embark upon by the government of Akwa-ibom State under the leadership of governor Udom Gabriel Emmanuel, the location of the projects, the cost of the projects and the contractors of those projects from inception till date.”

Akwa-Ibom State Government in it’s counter-affidavit to the suit, deposed to by one Donald Essien, a lawyer, stated that the plaintiff is vested with the facts and/or knowledge regarding the 13 percent derivation refund as the said information is already available in the public domain and would know this if he carried out proper research or followed the affairs of the Akwa-lbom State Government before instituting this instant suit.

He stated that the first defendant never hid any fact regarding the 13 percent oil derivation refund from the people of Akwa-lbom State as the said information has been consistently included in the yearly Approved Recurrent and Capital Expenditure Budget Estimate of the State since 2021. Adding that it was also included in the published Report of the Accountant general with Audited Financial Statements.

The deponent states that for the mere fact that Governor Nyesom Wike made a statement at the Nigerian Law school opening ceremony if at all, does not establish that the first defendant kept this fact hidden from the people of Akwa-lbom State as the first defendant had already brought it to the knowledge of the public since 2021 and was captured in the Approved Budget Estimate of 2021 by the Ministry of Finance, under Capital receipt as “other exceptional income: 13 percent Derivation Revenue arrears and others”.

He stated further that the purpose of instituting the plaintiff’s suit is solely to embarrass, frustrate and annoy the first defendant as the information which the plaintiff seeks is already available in the public domain as published by the first defendant in the Akwa-lbom State Audited Financial Statements of 2021 under the heading ‘Other Capital Receipts’ and clearly detailed as “Refunds, Donations and other exceptional income”.

The deponent who claimed to be an indigene of Ukanafun Local Government Area of Akwa-lbom State, stated further that the information was brought to the knowledge of the plaintiff by the Accountant General of the Federation in its response letter to the plaintiff, intimated him to access the requested information from its official website: www.oagf.gov.ng.

He averred further that no project in the State has been abandoned by the first defendant, as he has been committed and focused on delivering his promises to the people of Akwa-lbom State, despite the numerous challenges, criticisms and has attracted numerous investors into the State. Adding that there is an ongoing construction for the international worship centre which is near completion and cannot be said to have been abandoned.

He stated that the first defendant has invested heavily in the health Sector, by constructing, renovating and upgrading many healthcare facilities across the State and reconstructed equipped general Hospitals in most Local Government Councils of the State as documented in the State capital and Recurrent estimates. While there is an ongoing construction project of an Automobile Assembly Plant in Itu Local Government Area of Akwa-lbom State.

He stated that all information on income and expenditure of the Akwa-lbom state Government, facts and figures have always been made public by the State Government through constant publications in various magazines, reports and on the Akwa-lbom State official website: www.akwaibomstate.gov.ng and www.aksbudgetoffice.akgov.ng, the websites created for purposes of awareness, transparency and accountability.

The deponent who described most of the plaintiff’s averment as untrue, stated that the first defendant has no reason and/or plans to run away with the resources of Akwa-lbom State, his administration has been very transparent and accountable right from inception. As such, there is no need for him to be compelled to release any information because he is not withholding any information from the plaintiff and other members of the public.

He stated that the plaintiff who lacks knowledge of the administration of government finances and where to find necessary information about the State Government finances has brought this instant suit malafide with the aim of disparaging the good administration of the first defendant.

Also the third defendant, the Accountant-General of the Federation in its counter-affidavit deposed to by one of its litigation officers, Adeleke Sunday, stated that the plaintiff, as claimed in his affidavit, never make any request to the third defendant.

He stated that though, the third defendant actually received a letter of request from the plaintiff, he said letter is dated December 6, 2023, even though, they applied in a future and none existence date. Going by the 2023 calendar we are six months away to getting to December 6, 2023, the date the plaintiff wrote to the third defendant for a request for information on fund paid to the Akwa Ibom State Government from 2015 till date under the leadership of Governor Udom Gabriel Emmanuel.

He also averred that the plaintiff commenced an action against the third defendant even before the alleged offence. And that from the records of the third defendant, it received a letter dated December 6, 2023 from the plaintiff and wondered what sought of letter would capture a date that is yet to exist.

He stated that the discrepancies in date by the plaintiff, is a clear indication that the plaintiff is a confused witness and looking for an avenue to make money from the third defendant. Adding that the court cannot act on a date that is yet to exist, as this would set a wrong judicial precedence if the court acts otherwise. Adding that all process filled before this court capturing dates that do not exist and capturing discrepancies in dates is proof that the process is incompetent before this court.

He stated that the plaintiff cannot file an action against the third defendant based on hear say.

He averred that the plaintiff has brought a frivolous action before the court, and is not entitled to the declaratory reliefs as stated in his originating summons, having filled an incompetent action before this court.

He consequently urged the court to dismiss plaintiff’s suit for being an abuse of court process, incompetent and lacking in merit, and award a N1 million cost as damages in favour of the third defendant.

However, the plaintiff, in his further and better affidavit in response to the first and third defendants, stated that the first defendant counter affidavit is false, as the deponent, Barrister Donald Essien, is not from Ukanafun Local Government Area, claiming that being an indigene of Ukanafun Local Government Area, he knows lawyers who are from Local Government Area and Barrister Donald Essien is not one of them.

He challenged Barrister Donald Essien, to state his family lineage and the village he is from in Ukanafun and to produce his Certificate of Origin before the court.

He also stated that some the paragraphs of the affidavit are false, as the information he sought for from the Akwa-Ibom State Government, is not available to the public and that at no point he has made a criminal allegation against the first defendant or any of the defendants. He added that the websites wherein the first defendant in his preliminary objection claimed that the information is contained in the website, www.aksgbudgetoffice.akqgov.ng is not a correct website.

He also averred that the first defendant in it’s preliminary objection claimed that the information is contained one of which is www.akwaibomstate.gov.ng, displays information not contemplated by the plaintiff and not also detailed as requested by the plaintiff.

He further stated that the first defendant counter affidavit is false as the defendant never disclose to the people of Akwa Ibom State prior to governor Wike’s disclosure that he had received the 13% oil derivation fund from the Federal Government of Nigeria. Adding that contrary to some of the defendant affidavit, he gives the defendant notice to produce the published report of the Accountant General of Akwa Ibom state from 2015 till date during the hearing of this matter.

He averred further that in answering some of paragraphs of the third defendant’s counter affidavit referring to his affidavit, the Governor of Akwa ibom State, Mr. Udom Gabriel Emmanuel never made any publication or speech in denial of receiving the 13 % oil derivation refund after the disclosure by Governor Nyesom Wike. And that the third defendant’s counter affidavit referring to paragraphs of his affidavit, several projects have been abandoned by the Udom Emmanuel administration in Akwa Ibom State, these include: Ibom airport road expansion, Ibom Science/lndustrial Park, several drainages in Uyo the State capital, the International worship Center, Peacock Paint factory, Coconut Refinery, Ito Automobile Assembly plant/factory, the General hospital otherwise known as cottage hospital, built and abandoned uncompleted by the previous government of Akwa Ibom State in Ukanafun Local Government.

The plaintiff stated that the Freedom of Information Act has given him the right to institute the action upon failure to provide the needed information by the defendants and that his suit is not aim at disparaging, embarrassing and annoying the administration of the first defendant, who controls the affairs of the State.

He stated that as a patriotic citizen of Nigeria who wishes that the State and the country develop, it will be in the interest of justice to grant his application.

While Justice Tijjani G. Ringim, has fixed May 24, for hearing of the suit, the second defendant, the State’s Accountant-General, is yet to file any response to the suit.