FHC orders FG to pay arrears of 13% derivation sum to Delta state 

By Enaibo Asiayei 

A Federal High Court, Abuja, on Monday, ordered the Federal Government to pay $1.638 billion to the Delta State Government being 13 percent derivative sum due as arrears of revenue payable to the oil-rich state.

Justice Donatus Okorowo, while delivering the judgment, held that being a suit instituted to recover revenue accruing to the state government, it qualified for the undefended list.

Okorowo ruled that the development made the court to declare the plaintiff’s case as “unchallenged.”

While the Attorney-General of Delta State is the plaintiff, the Attorney-General of the Federation (AGF) is the sole defendant in the suit.

The plaintiff, in the suit marked: FHC/ABJ/CS/660/2012 and filed on July 12 by his counsel, Ken Njemanze, urged the court to compel the AGF to pay five per cent of $50 billion recovered as additional revenue accrued to the Nigerian government.

Justice Okorowo dismissed the AGF’s preliminary objections challenging the court’s jurisdiction to entertain the suit as well as the mode in which the case was instituted as ‘undefended list.’

Okorowo had, in an ex-parte application on July 22, ruled that the “plaintiff’s writ of summons be marked and placed on the undefended list.” The judge, therefore, granted all the reliefs of the Delta State Government.

“The suit succeeds on its merit and all the reliefs sought by plaintiff are granted,” he ruled.

The News Agency of Nigeria (NAN) reported that Delta State Government, through its Attorney-General, had in an affidavit setting forth the grounds upon which its claim was based, urged the court to “direct the defendant (AGF) to pay the sum of $1,638,396,277.00 being the 13 per cent derivative sum due as arrears of revenue payable to Delta State as assessed.

“A consequential order of this court compelling the defendant to net off and pay five per cent of the said sum as per clause 3.0(v) of the defendant’s letter of engagement dated 12 April, 2018 and clause 3.0(v) the defendant’s further letter of engagement dated November 19, 2018, pursuant to clause lll(d) of the terms of settlement made the (consent) judgment by the Supreme Court.

“Ten percent post judgment interest at court rate on the said $1,638,396,277.00 to the plaintiff until final liquidation thereof.”

While urging the court to discountenance the AGF’s claim that it was not a party to the suit lodged by the Akwa-Ibom, Bayelsa and Rivers State Governments, the plaintiff said: “The suit described above was instituted in the Supreme Court for the enforcement of the general of the littoral states (of which Delta State is one.)

“The plaintiff has a pecuniary interest in the said suit and its outcome affects her rights and or liabilities.”

However, in an affidavit disclosing defence on merit by Mr Thomas Etah, a staff member at the Federal Ministry of Justice, Abuja, the AGF had argued that Delta State was not a party in the terms of settlement in the suit between the Akwa-Ibom, Bayelsa and Rivers State Governments delivered by the Supreme Court.

He further contended that “it will not serve the interest of justice to grant the plaintiff’s claim against the defendant without full hearing. That the terms of settlement in question have been entered as judgement of the court between the parties before the court.”

In the defendant’s notice of preliminary objection dated September 22, the lawyer submitted that the jurisdiction of the Federal High Court under Section 251 of the Constitution did not include adjudication between a state and the federation.

“The subject matter of this suit is a dispute between the Delta as a state and the federation. That the subject matter relates to the recovery of revenue accruing to the federation account, the beneficiaries of which are the federation and the states of the federation.

“That the subject matter of this suit is not to be commenced by way of undefended list,” the AGF lawyer had argued, urging the court to dismiss the suit.
But Justice Okorowo granted the reliefs sought by the plaintiff.

“Judgment is hereby entered on the claims of the plaintiff in this case. This is the order of this court,” he declared.

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