THE CHAIRMAN OF THE NIGER DELTA DEVELOPMENT COMMISSION (NDDC), IS APPOINTED ALPHABETICALLY BY MR. PRESIDENT AND EXCLUSIVELY FROM THE MEMBER STATES, AND NOT FROM AN OIL PRODUCING COMMUNITY HAVING THE HIGHEST QUANTUM OF PRODUCTION IN SUCH A MEMBER STATE in line with the NDDC Act, 2000.
In retrospect, some of us, together with our revered elders such as, Gen. David Ejoor, Dr Chuba Okadigbo, Alhaji Ghali Na’aba, Senator Melford Okilo (all of blessed memory), Chief E.K. Clark, Prof Itse Sagay SAN, Senator Udo Udoma, Senator Eta Enang, Asari Dukobo, Ankio Briggs, Hon Wunmi Bewaje, Hon West Idahosa and many more joined forces to override erstwhile President, Olusegun Obasanjo’s refusal to accent to the NDDC Act 2000.
His refusal was on the ground that the Federal Government could not pay 15% of the total budget of the hitherto Nine Oil producing States as its contribution to the Commission.
President Obasanjo on the contrary insisted on paying only 10%, whilst the Oil Companies opted for 2% of their annual budget as their contribution to the Commission as against 3% proposal by us.
It took the very courageous efforts of two great men, namely Late Dr Chuba Okadigbo and Alhaji Ghali Na’aba to override the then President’s veto under Section 58 (3) of our Constitution, and passed the NDDC Act 2000, with directions under Section 14, for the Federal Government and Oil Companies to contribute 15% and 3% respectively as above stated to the Commission.
Unfortunately, since July 2000, when the NDDC Act came into operation, the Federal Government has been paying only 10% as against 15% of the total budget of the Oil Producing States, whilst the Oil Majors are paying 2% of their annual budgets, as against 3% set out by the Act.
The arrears of these shortfalls now runs into millions upon millions of United States dollars and billions upon billions of Naira.
In this connection, we are presently mulling over a legal challenge to order the Federal Government and the Oil Majors to comply with Section 14 thereof, and also be ordered to pay the arrears of shortfalls from July, 2000 till date!
NDDC Act Recognizes Only A Member State As The Index And Basis Upon Which The Appointment Of A Chairman Is Made And Not Based On An Oil Producing Community With The Highest Quantum Of Production Within Such Member State.
Indeed, the raison detre for the agitation that led to the establishment of the Commission was at the instance of the States of the Niger Delta.
The State was therefore the common denominator in terms of the appointment into office of Chairman of the Commission.
Thus, the Act under Section 4 provides for rotation of the Chairmanship of the Commission in alphabetical order on the part of the member States.
This is the fundamental index upon which the Chairmanship position is predicted as above.
Thus, once it is the turn of any State, in terms of alphabetical order, it is the EXCLUSIVE PREROGATIVE, of Mr. President to appoint any indigene of that State from any Oil Producing Community therein as adumbrated in section 2 (2) thereof.
Once the appointee is an indigene of the State and an indigene of an Oil Producing Community in the State, he stands automatically qualified to be so appointed as a Chairman of the Commission.
If the Act had intended for an appointee for the Chairmanship position to also come from the highest Oil Producing Community within a member State, the Act would have expressly said so.
Having not said so, that inference is clearly excluded from the Act.
This, postulation is further augmented by the latin legal phrase of Exclusio Unius, Ex Exclusio Ulterius.
Meaning that, “an express mention of a word, leads to the exclusion of that not mentioned”.
For this literal construction, we rely on the Apex Court case of Okumabga V Ebge (1965), ALL NLR 162.
That case ruled that:
“While it is the duty of the Court to interpret the Law, it has on powers to fill obvious gaps”
Chairman Of The Commission Is Recognized As A State, Like Payment Of 13% Derivation To Only States
Recall, a lot of oil producing communities had agitated that 13% derivation be paid directly to the Oil producing communities under the proviso to Section 162 (2) of the Constitution as amended.
That Section provides that:
“….. the Principle of derivation shall be constantly reflected in any approved formular as being directly not less than thirteen percent of the revenue accruing to the Federal Account directly from any natural resources.“
These Oil Producing Communities, argued that where the natural resources are located should be equated to their geographical location, hence cloth same with the powers to receive the derivation payments.
However, the Apex Court in the landmark case of AG Abia V AG Fed (2002) 6 NWLR (Pt 764) 542 SC, declared that it is ONLY A STATE and not an Oil Producing Community that can be paid 13% derivation in Nigeria.
This case is equally applicable here to legally cocoon the appointment of the incumbent Chairman of the NDDC.
Only A Member State Can Therefore Sue To Challenge An Appointment Of Chairman For The Commission.
ONLY a member State therefore has the Locus Standi to challenge the validity of the Appointment of a Chairman of the NDDC, and not indigenes of an oil producing community of a member State, no matter how much oil same produces.
This point is very germane to the accentuation made herein, as the Act confers the power on the States to produce the Chairman in alphabetical order, so also is only such as a State that has the Locus or Quo Warranto to sue in respect of any appointment so made!
And as such, it is only such a member State, that can file action in court if it is aggrieved by the appointment of Chairman by Mr. President.
Put succinctly, the States alone have legal rights when it comes to taking legal action against any purported irregular appointment of Chairman of the Commission.
The Law on Locus Standi has been axiomatically crystalized with Judicial Finality by the Apex Court in locus classicus of Uwodumni V The Registered Trustees of Celestial Church of Christ & Ors (2000) NWLR (Pt 675) 315 at 354-355 para H-A; 357 para F-G. Wherein the exquisite Iguh JSC declared the Law thus:
“in dealing with the Locus Standi of a Plaintiff, it is his statement of Claim alone that has to be carefully scrutinized with a view to ascertaining whether or not it has disclosed his interest and how such interest has arisen in the subject matter of the action. “
(Underling Supplied For Emphasis)
Speaking in a similar vein, the terribly learned Ayoola JSC in AG Ekiti State V Prince Micheal Daramola (2003) 10 NWLR (Pt 827) 104 at 112 posited thus:
“where in a chieftaincy matter, a Plaintiff fails to prove that he is a member of the appropriate ruling house, then it follows that he would have no Locus Standi, to institute the action…..”
Applying the above principle to the facts of this discourse would afortiori mean that an individual or collective set of indigenes of an oil producing State from a member State of the Commission, possess no Locus Standi to file a Suit in respect of the Chairmanship position, as they are not member States of the Commission.
Thus, such persons must prove they are from a member State themselves and not merely indigenes of an oil producing community from the member States.
The only way they can so sue, is for the Attorney General of a member State to grant authority to same and/or issue a fait for them to file the action in his name or that of a member State!
Our Struggle For Resource Control And The Niger Delta
It is apposite to state at this juncture that in 2003, I on behalf of the Niger Delta Democratic Union (NDDU), of which I am her Facilitator, launched a legal challenge against erstwhile President Olusegun Obasanjo’s refusal to appoint a Minister of Petroleum Resources as directed by the Petroleum Act of 1969.
Indeed, the pressure of this Suit at the Court of Appeal, Abuja, prompted the erstwhile President Obasanjo to appoint Prof. Edmund Dakuro (now HRM) as the Minister of State Petroleum Resources on 25th July, 2005.
That case is now reported as Austin Ayowe & NDDU. V The President (2006), ALL FWLR (Pt. 334), 1967
I recall, under the revolutionary agitation for resource control under the courageous Chief James Onanefe Ibori, i was appointed as the Secretary to the Delta State defence team at the Supreme Court (as an erstwhile Special Assistant to Prof A.A Utuama SAN, Attorney General of Delta State at that material time).
And our Counter-Claim drafted by my modest self (as approved by the defence team), succeeded as Ogundare JSC upheld the entire Counter-Claim of the 10th Defendant i.e. Delta State.
And that case is AG Fed V AG Abia (supra).
The above is to establish our constant struggle for the development of the Niger Delta and her people.
DR AKPO MUDIAGA ODJE IS OF DR MUDIAGA ODJE SAN & CO, LLD, LLM, (MERIT), (LONDON), B, B.L. MEMBER BRITISH COUNCIL, HONORARY MEMBER NIM, FELLOW OF HUMAN RIGHTS NETWORK INTERNATIONAL (HURNETI), FELLOW INSTITUTE OF HUMAN AND NATURAL RESOURCES (FHNR), REAL DISTINGUISHED NIGERIAN (RDN), CONSTITUTIONAL LAWYER, AND;IS THE FACILITATOR OF THE NIGER DELTA DEMOCRATIC UNION (NDDU)
