NDDC Board appointment: Enikuomehin sues Buhari, NASS, Tokunbo Ajasin (See details)

By By WazobiaReporters On Sep 22, 2016

IN THE FEDERAL HIGH COURT OF JUSTICE
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA

SUIT NO: FHC/ABJ/CS/649/2016

BETWEEN:

DR. BENSON ENIKUOMEHIN PLAINTIFF
(For himself and on behalf of Obe-Enikanoselu,
Jirinwo Communities and oil producing area of
Ilaje Local Government Area of Ondo State)

AND

1.PRESIDENT, FEDERAL REPUBLIC OF NIGERIA.
2.THE NATIONAL ASSEMBLY, FEDERAL
REPUBLIC OF NIGERIA. DEFENDANTS
3.THE ATTORNEY GENERAL OF THE FEDERATION
4.MR. OLATOKUNBO AYOTUNDE AJASIN
5.NIGER DELTA DEVELOPMENT COMMISSION

ORIGINATING SUMMONS

Let ( 1).President, Federal Republic of Nigeria c/o office of the Attorney General of the Federation, Ministry of Justice, Maitama, Abuja; (2).The National Assembly, Federal Republic of Nigeria of National Assembly Complex, Three Arms Zone, FCT, Abuja; (3). The Attorney-General of the Federation of Office of the Attorney General, Ministry of Justice, Maitama, Abuja (4) Mr. Olatokunbo Ayotunde Ajasin of Idiape, New Bodija, Ibadan, Oyo State and (5).Niger Delta Development Commission (NDDC) of 167, Aba Road, Port-Harcourt, River State within thirty days after the service of this summons on them, inclusive of the days of such service, cause an appearance to be entered for them to this summons which is issued upon the application of Dr. Benson Enikuomehin of House 31, Savannah Estate, Plot 959, beside Adisa Estate, Durumi, Gudu District, Apo, Abuja for the determination of the following questions:

QUESTIONS FOR DETERMINATION:

1.Whether considering the provisions of the Niger Delta Development Commission (Establishment etc) Act, 2000, particularly Sections 2 (1) (b) and 12 (1) of the Act, the 1st Defendant can nominate/appoint any person (s) to occupy the positions of a State Representative, Managing Director and Executive Directors on the governing Board of the 5th Defendant except persons who are indigenes of the oil producing areas of the member states.

2.What constitutes an oil producing area of a member State of the 5th Defendant

3.Whether the phrase “indigenes of the oil producing areas” as used in the NDDC Act, 2000 is synonymous with, and can be interchangeably used for “all the citizens of a member State” of the 5th Defendant.

4. Whether the nomination/appointment of the 4th Defendant who is not an indigene of the oil producing area of Ondo State by the 1st to serve as the Ondo State representative on the governing Board of the 5th Defendant is not a violation of section 2(1) (b) of the Niger Delta Development Commission Act 2000 and should therefore be set aside and declared null and void.

WHEREOF THE PLAINTIFF CLAIMS THE FOLLOWING RELIEFS:

1.A DECLARATION that by the provisions of sections 2 (1) (b) and 12 (1) of the Niger-Delta Development Commission, (Establishment etc ) Act, 2000, only persons who are indigenes of the oil producing areas of the member states of the 5th Defendant can be nominated/appointed by the 1st Defendant to serve either as State Representative, Managing Director and Executive Directors on the governing Board of the 5th Defendant.

2.A DECLARATION that “indigenes of oil producing area” of a member State is not synonymous with and cannot be interchangeably used for “all the citizens of a member State” of the 5th Defendant.

3.A DECLARATION that the only oil producing area of Ondo State is in Ilaje Constituency 1(otherwise known and called Ugbo Communities) comprising of Six (6) political wards in Ilaje Local Government Area of Ondo State.

4.A DECLARATION that the nomination/appointment of the 4th Defendant by the 1st Defendant from Owo Local Government,( a non oil producing area in the Northern Senatorial District of Ondo State) to serve as the Ondo State Representative on the governing Board of the 5th Defendant is irregular and a violation of section 2(1) (b) of the NDDC Act, 2000, and is therefore unlawful, null and void.

5.AN ORDER restraining the 4th Defendant from presenting himself for screening and confirmation by the 2nd Defendant.

6.AN ORDER restraining the 4th Defendant from representing himself as the Ondo State Representative and participating in any matter affecting/pertaining to deliberation of the governing Board of the 5th Defendant in respect of Ondo State.

7.AN ORDER restraining the 5th Defendant from allowing the 4th Defendant to sit and participate in the deliberation of matters pertaining to, and affecting the interest of Ondo State on the governing Board of the 5th Defendant.

8.AN ORDER OF PERPECTUAL INJUNCTION restraining the 2nd Defendant from considering and confirming the 4th Defendant as the Ondo State Representative on the governing Board of the 5th Defendant.

9.AN ORDER setting aside the nomination/appointment of the 4th Defendant by the 1st Defendant as the Ondo State Representative on the governing Board of the 5th Defendant.

10.A PERPECTUAL INJUCTION restraining the 1st Defendant from nominating and/ or appointing any person (s) whatsoever and by howsoever means from representing Ondo State on the governing Board of the 5th Defendant either as a State Representative and/ or Managing Director and Executive Directors who are not from Ugbo oil producing Communities in Ilaje Local Government Area of Ondo State.

GROUNDS UPON WHICH THE RELIEFS ARE SOUGHT:

1.In nominating/appointing any person (s) to serve on the governing Board of the 5th Defendant either as a State Representative, Managing Director and Executive Directors, the 1st Defendant is under obligation to follow and adhere strictly to the provisions of sections 2 (1) (b) and 12 (1) of the NDDC, Act, 2000.

2.The only oil producing area of Ondo State is found in Ilaje Constituency 1, (otherwise known and called Ilaje Ugbo Communities), and any nomination/appointment to the governing Board of the 5th Defendant must be from the area.

3.The nomination/appointment of the 4th Defendant from Owo Local Government Area of Ondo State (a non-oil local government of the State) to represent Ondo State on the governing Board of the 5th Defendant is a violation of section 2 (1) (b) of the NDDC Act, 2000.

4.The 1st Defendant did not follow the relevant provisions of the NDDC Act, 2000 that sets up the 5th Defendant in the nomination/appointment of the 4th Defendant and thereby acted ultra vires his power in recommending the 4th Defendant to the 2nd Defendant for confirmation.

5.The nomination/appointment of the 4th Defendant will deprive and deny the indigenes of the oil producing area of Ugbo Communities in Ondo State the sole privilege of having any of their sons/daughters to represent their interest in the governing Board of the 5th Defendant.

6.If the wrongful nomination/appointment is allowed to sail through, this will open floodgates of representation for indigenes of non oil producing areas in Ondo State to permanently deprive Ugbo Communities what nature and the Law rightful gave to them.

This Originating Summons was taken out by Dr. Benson Enikuomehin, Esq of Benson Enikuomehin & Co, House 31, Savannah Estate, Plot 959, by Adisa Estate, Durumi, Gudu District, Apo, Abuja as Plaintiff.

………….…………………
Dr. Benson Enikuomehin, Esq.

The defendants may appear hereunto by entering appearance personally or by a legal practitioner either by filing the appropriate process (as in Order 7) in response at the Registry of the Court where the summons was issued or by sending them to that office by any of the methods allowed by the Rules.

Note: If the defendants do not respond within the time at the place above mention, such orders will be made and proceeding may be taken as the Judge may think just and expedient.

This summons is to be served out of jurisdiction of the Federal Capital Territory, Abuja on the 4th and 5th Defendants at Idiape, New Bodija, Ibadan, Oyo State and 167, Aba Road, Port-Harcourt, Rivers State respectively.

………………
JUDGE

Dated the day of 2016

….…………………………..
Dr. Benson Enikuomehin
Plaintiff Benson Enikuomehin & Co,
House 31, Savannah Estate,
Plot 959, beside Adisa Estate,
Durumi, Gudu District, Apo,
Abuja.
Tel: 08122233445,08058825882
Email:benson@enikuomehin.com

FOR SERVICE ON
1.1st Defendant:
President, Federal Republic of Nigeria.
c/o office of the Attorney General of the Federation,
Ministry of Justice, Maitama, Abuja.

2.2nd Defendant:
The National Assembly, Federal Republic of Nigeria.
National Assembly Complex,
Three Arms Zone, FCT, Abuja.

3.3rd Defendant:
The Attorney-General of the Federation.
Office of the Attorney General,
Ministry of Justice, Maitama, Abuja.

4.4th Defendant
Mr. Olatokunbo Ayotunde Ajasin
Idiape Area, New Bodija, Ibadan, Oyo State.
Tel: 08034030627

5.5th Defendant:
Niger Delta Development Commission (NDDC)
167 Aba Road, Port-Harcourt,
River State.

IN THE FEDERAL HIGH COURT OF JUSTICE
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA

SUIT NO: FHC/ABJ/CS/649/2016

BETWEEN:

DR. BENSON ENIKUOMEHIN PLAINTIFF
(For himself and on behalf of Obe-Enikanoselu,
Jirinwo Communities and oil producing area of
Ilaje Local Government Area of Ondo State)

AND

AFFIDAVIT IN SUPPORT OF THE ORIGINATING SUMMONS

I, Dr. Benson Enikuomehin, Male, Christian, Legal Practitioner, Nigerian Citizen of House 31, Savannah Estate, by Adisa Estate, Durumi, Gudu District, Apo, Federal Capital Territory, Abuja, do hereby make oath and state as follows:
1.That I am the plaintiff in this matter by virtue of which I am very familiar with the facts of this case.

2.I am a legal practitioner having been called to the Nigerian Bar for more than 21 years.

3.That I am actively involved in the practice of law and the defense of the less privileged in the country.

4.I am a native/indigene of Obe-Enikanoselu and Jinrinwo Communities of the oil producing area of Ilaje Local Government Council in Ondo State.

5. That while my father hailed from Obe-Enikanoselu community, my mother is from Jinrinwo community; all in Ilaje Constituency 1 (Ugbo Communities).

6.That I have had the privilege to serve on the governing Board of the 5th Defendant as the Ondo State Representative between December 2009 and September, 2011

7.That Ilaje Constituency 1 is made up of 6 political wards, namely

a.Ugbo Ward 1
b.Ugbo Ward 2
c.Ugbo Ward 3
d.Ugbo Ward 4
e.Ugbo Ward 5 and
f.Ugbo Ward 6

8.That Obe-Enikanoselu Community is located in Ugbo political ward 4 while Jinrinwo is located in Ugbo political ward 5 of Ilaje Constituency 1.

9.That both Obe-Enikanoselu and Jinrinwo Communities are parts of the oil producing area of Ilaje Constituency 1 of Ilaje Local Government Area of Ondo State.

10.That I am the political head and community leader of Obe-Enikanoselu Community.

11.That this suit is instituted for myself, on behalf of Obe-Enikanoselu, Jinrinwo Communities and the oil producing area of Ilaje Local Government Council of Ondo State.

12.That sometime in 1992, the Federal Military Government of General Ibrahim Babangida promulgated Decree No. 23 establishing the Oil Mineral Producing Areas Development Commission (OMPADEC) and named Ondo State as part of the oil producing states in Nigeria.

13.That as a student then at the University of Benin, I decided to take a course in Petroleum Law to acquaint myself with the developments in the oil industry.

14.That consequent upon the above I became aware and knowledgeable in respect of the operations of oil companies carrying on exploration and exploitation of oil mineral activities in the coastal area of Ondo State.

15.That I know as a fact that Gulf Oil (now Chevron Nigeria Limited) struck crude oil on commercial quantity off the coast of Ilaje Ugbo Communities on the 10th of November, 1968.

16.That I know as a fact that the under mentioned oil companies, namely;
a.Chevron Nigeria Ltd,
b.Conoil producing Ltd
c.Express petroleum & Co
d.Conoco Energy Nig limited
e.Cavendish Nigeria Ltd etc
are operating on-shore and off shore of Ilaje Constituency 1 communities.

17.That the operation of Chevron covers:- Omuro Oil Field (Onshore), Ojumole Oil Field (Onshore), Opoekaba oil field (onshore), Parabe oil field (offshore), Eko oil field (offshore), Meren oil field (offshore), Malu Oil field (Offshore), Mina oil field, Opolo oil field 2 (Offshore) etc.

18.That some of these oil fields are covered in the Oil Mining Leases (OMLs) 49, 90 and 95 granted to Chevron Nigeria Limited.

19.That Chevron Nigeria Limited at various times since its operations both onshore and offshore Ilaje Constituency 1 (Ugbo Communities) constantly enters into Memoranda of Understanding (MOU) with Ilaje Ugbo host communities to the exclusion of any other communities that make up Ilaje Local Government. Attached and marked Exhibit BE 1and BE 2 are copies of the MOUs between Chevron Nigeria Limited and Organizations in Ilaje Ugbo Coastal Communities.

20.That I know as a fact that Conoil Producing Ltd operates Bella Oil Field (OML 103) solely off the shore of Ugbo communities.

21.That on the 13th of May 1994 the then Military Administrator of Ondo State, Lt Col L.M Torey, wrote to the Managing Director of Consolidated Oil Ltd in respect of the operation of the company in Obenla community in Ugbo oil producing area of Ilaje Local Government. Attached and marked exhibit BE3 is a copy of the letter.

22.That I know as a fact that Consolidated Oil Limited is operating exclusively in Ugbo communities.

23.That in 2002 Obenla and many other communities of Ugbo land dragged Consolidated Oil Limited to the House of Representatives committee on petroleum resources on their non performance to the host communities.

24.That Conoil Limited agreed that it operates in these Ugbo communities and tendered documents it signed with associations in Ugbo oil producing area namely; (a) Obe confederation and (b) Asicopc. Attached and marked exhibit BE4 is a copy of documents tendered by Conoil Limited.

25.That at various times and in particular on the 31st day of December, 2010, Conoil Producing Ltd entered into Memorandum of Understanding (MoU) with two associations in Ugbo communities namely:- (a) Obe confederation (b) Asicopc in respect of their operations in Ugbo oil producing communities to the exclusion of other communities in Ilaje Local Government in particular and Ondo State in general. Attached and marked exhibit BE5 is a copy the said MoU.

26.That the operation of Cavendish Petroleum Ltd is on OML 110 of the coast of Ilaje Ugbo communities.

27.That Express Petroleum & Gas Co Ltd also operates Ukpokiti Oil Field (OML 108 ) offshore Ugbo communities.

28.That Conoco Oil Producing Ltd also operates offshore of Ugbo communities.

29.That the operations of all these oil companies in Ondo State are SOLELY WITHIN AND AROUND UGBO COMMUNITIES. Attached and marked Exhibit BE 6 is a certified Copy of the operational map of oil companies operation onshore and offshore Ilaje Constituency 1 (Ugbo Communities)

30.That I know as a fact that Ugbo communities share boundaries with Delta State on the Eastern part, Atlantic Ocean in the South, Ese-Odo Local Government to the North and Mahin, Aheri and Etikan Communities to the West.

31.The last Ugbo community to the West is Abetobo community.

32.That the communities from Ebighan through to Abetobo formed the Ugbo communities which are the ONLY OIL PRODUCIN AREA of Ilaje Local Government Council of Ondo State.

33.That I know as a legal practitioner that by the judgment of the Supreme Court of Nigeria in the case of A.G Federation Vs A.G Abia State & 35 Ors reported in (2002) 6 NWLR (Pt 764) at page 542, the 8 littoral States in Nigeria, namely, Lagos, Ogun, Ondo, Delta, Bayelsa, Rivers, Akwa-Ibom and Cross River were denied the ownership of the oil mineral located offshore the 8 littoral States.

34. That Ondo and Akwa-Ibom states were mostly and adversely affected by the judgment of the Supreme Court stated above because majority of the oil wells and fields attributable to these states are produced off shore.

35.To relieve the States of the adverse effect of the judgment of the Supreme Court, the National Assembly enacted the Allocation of Revenue (Abolition of Dichotomy in the Application of the Principle of Derivation) Act Cap A 27 Laws of the Federation of Nigeria, 2004 which removed the dichotomy between onshore and offshore but limited same to 200 meters water depth isobath contiguous to a state of the federation.

36. That I know as a fact that the various oil companies operating offshore Ugbo communities mentioned in the preceding paragraphs above have their oil wells and fields within the 200 meters water depth isobaths contiguous to Ugbo communities.

37.That I have the knowledge as a legal practitioner that an isobath is a line representing the horizontal contour of the sea bed at a given depth

38.That I also know as a fact that only Ugbo communities are bounded by the sea(Atlantic ocean) where these oil companies are operating.

39.That the production from these oil companies operating onshore and offshore Ugbo communities SOLELY makes Ondo State an oil producing state and a member of the 5th Defendant.

40.That I know as a fact that no other local governments in Ondo State namely; Ese-odo, Okitipupa, Irele, Odigbo, Ileluji/Okeigbo, Ondo west, Ondo east, Idanre, Ifedore, Akure south, Akure north, Owo, Ose, Akoko south west, Akoko south east, Akoko north west and Akoko north east are oil producing.

41.That Ondo State has 3 senatorial district namely; Ondo south, Ondo central, Ondo north.

42.That each of the senatorial district consists of 6 local governments each which are as follows
a.Ondo South: i. Ilaje, ii. Ese-Odo, iii Okitipupa, iv Irele, v Odigbo and vi Ile-Oluji/Oke-Igbo.
b.Ondo Central: i. Ondo West, ii. Ondo East, iii. Idanre, iv. Ifedore, v. Akure South and vi. Akure North
c.Ondo North: i. Owo, ii. Ose, iii. Akoko South West, iv. Akoko South East, v. Akoko North West and vi. Akoko North East.

43.I know as a fact that there are no oil companies carrying out seismic activities, oil exploration activities and oil exploitation activities in the Central and Northern Senatorial Districts of Ondo State.

44.I am aware also that no oil company in Nigeria is operating in Ese-Odo, Irele, Okitipupa, Odigbo and Ile-Oluji/Oke-Igbo Local Governments which are parts of the Ondo South Senatorial District.

45.That all the local governments in Ondo State mentioned in the preceeding paragraphs of this affidavit have no boundary with the sea (Atlantic Ocean).

46.That as a legal practitioner, I am aware that by the provision of section 1 of the Allocation of Revenue (Abolition of Dichotomy in the Application of the Principle of Derivation) Act Cap A 27 Laws of the Federation of Nigeria 2004, only oil companies operating within 200 meters water depth isobaths contiguous to littoral state can contribute to the oil production of that state for the purposes of the application of the Principle of Derivation.

47. I am also aware as a legal practitioner that by the provision of section 1 of the Allocation of Revenue (Abolition of Dichotomy in the Application of the Principle of Derivation) Act Cap A 27 Laws of the Federation of Nigeria 2004 any oil company that operates and produces oil beyond 200 meters depth isobath limitation will not have the production credited to the littoral state.

48.I am aware that the depth at which production from the following offshore oil fields, namely, Bonga ,Bosi, Abo, Agbami, Erha, Akpo, Bonga-Sw, Aje-1 are carried out, ranges between 1,260 metres and 5,800 metres deep.

49.That I also know as a fact that the depth at which AGIP (operator of Abo oil field) carries out its oil production ranges between 550 metres and 750 metres deep.

50.That the only oil producing area of Ondo State is found in Ugbo communities, namely (from Ebighan community to Abetobo) to the exclusion of any other parts in Ilaje Local Government in particular and Ondo State in general.

51.The 4th defendant is from Owo Local Government Area in the Northern senatorial district of Ondo State.

52.That I know as a fact that there is no oil company carrying out seismic activities, prospecting for oil and producing oil in Owo Local Government where the 4th Defendant comes from.

53.That the 4th defendant neither resides in any of the Ugbo communities nor is he an indigene of Ilaje Ugbo oil producing area of Ondo State.

54.That the 1st defendant nominated the 4th defendant and forwarded his name to the 2nd defendant for confirmation as the Ondo State representative on the governing Board of the 5th defendant.

55.That as a legal practitioner I am aware that in line with section 2(1)(b) of the NDDC Act 2000 only indigene of the oil producing area of a member state of the 5th defendant can be appointed as a representative of the member state to serve on the governing Board of the 5th Defendant.

56.I also know that in line with section 12(1) of the NDDC Act, 2000 only indigenes of the oil producing areas of the member states can be appointed as managing director and executive directors respectively to serve on the governing Board of the 5th Defendant.

57.That as a legal practitioner, I know that the nomination of the 4th defendant is a violation of the provisions of section 2 (1) (b) of the NDDC Act 2000.

58.I know as a fact that since the establishment of the 5th defendant in year 2000, only persons from Ugbo communities have been appointed as the representatives of Ondo State on the governing Board of the 5th defendant. The persons that had been appointed are;
i)Chief Olusola Alex Oke from Ugbo ward 3 2000-2004
ii)Dr Ibikun Omotehise from Ugbo ward 4. 2004-2008
iii)Dr. Benson Enikuomehin from Ugbo ward 4. 2009-2011
iv)Mr Dele Omogbemi from Ugbo ward 4. 2011-2013
v)Barr Benson Amuwa from Ugbo ward 6 2013-2015

59.I know as a fact also that the Ondo State House of Assembly in year 2003 enacted the Ondo State Oil Producing Areas Development Commission Law Cap 106, the Laws of Ondo State of Nigeria Vol 3, at pages 2883-2893 and gave the EXCLUSIVE RIGHT to the INDIGENES of oil producing area to be Chairman of the Commission and 3 representatives of the oil producing area.

60.That I know as a legal practitioner that section 2 (iii) (a-c) of the Ondo State Oil Producing Areas Development Commission (OSOPADEC) Law CAP 106, 2003 classifies the Northern Senatorial District, Central Senatorial District and “non-oil producing areas of Southern Senatorial District” as non oil producing areas of Ondo State.

61.That I know as a fact that since the establishment of OSOPADEC in 2003 the following persons from Ugbo oil producing area had been appointed as Chairmen of the Commission without any contest from other local governments in Ondo State. They are:
a.Dr Ibikun Omotehinose, Ugbo ward 4, 2003-2004
b.Chief Olusola Oke, Ugbo ward 3, 2004-2007
c.Chief Adewale Omojunwa, Ugbo ward 3, 2007-2009
d.Chief Adebowale Ajumuda, Ugbo ward 2, 2009-2012
e. Pastor Johnson Ogunyemi, Ugbo 2, 2013 till date.

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62.That as a legal practitioner, I know that the 1st Defendant swore to an oath during his inauguration to obey the Constitution of the Federal Republic of Nigeria and other laws made by the National Assembly of the Federal Republic of Nigeria.

63. That as a legal practitioner, I know that the 1st Defendant cannot nominate/appoint any person who is not an indigene of the oil producing area to represent any of the member States on the governing Board of the 5th Defendant or serve as managing director/executive directors on the governing Board of the 5th Defendant.

64. That as a legal practitioner I have the knowledge that the 4th defendant who is not an indigene from any of the six (6) political wards of Ugbo communities that form the oil producing area of Ondo State is not qualified to be nominated/appointed to represent Ondo State on the governing Board of the 5th Defendant.

65.That on the 23rd of July, 2016, I wrote to the 1st Defendant, drew his attention to the facts deposed to in the preceding paragraphs, and requested the 1st Defendant to withdraw the nomination of the 4th Defendant as the representative of Ondo State on the governing Board of the 5th Defendant. Attached and marked Exhibit BE 7 is an acknowledged copy of the said letter received on the 26th of July, 2016 in the office of the 1st Defendant.

66.The 1st Defendant has failed, refused and neglected to withdraw the name of the 4th Defendant he earlier forwarded to the 2nd Defendant for confirmation as the representative of Ondo State on the governing Board of the 5th Defendant.

67.That I know as a legal practitioner that the action of the 1st Defendant in nominating/appointing the 4th Defendant who is not an indigene of the oil producing area (Ugbo communities) in Ilaje Local Government Area of Ondo State is not justifiable and a flagrant disregards of the provisions of NNDC Act, 2000 relating to the nomination/appointment of a person to serve on the governing Board of the 5th Defendant.

68.That it is in the interest of justice to set aside the nomination/appointment of the 4th defendant by the 1st defendant as being a violation of section 2(1)(b) of the NDDC Act 2000.

69.That it is also in the interest of justice to restrain the 2nd defendant from confirming the name of the 4th defendant as the representative of the Ondo State on the governing Board of the 5th defendant.

70. That it is in the interest of justice to grant all the reliefs sought in the originating summons of this suit.

71. That I deposed to this affidavit in good faith conscientiously believing the content to be true and correct and in accordance with the Oath Act in force.

………………….
D E P O N E N T

Sworn to at the Federal High Court Registry
Abuja this day of 2016.

BEFORE ME

COMMISSIONER FOR OATHS.

IN THE FEDERAL HIGH COURT OF JUSTICE
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA

SUIT NO: FHC/ABJ/CS/649/2016

BETWEEN:

DR. BENSON ENIKUOMEHIN PLAINTIFF
(For himself and on behalf of Obe-Enikanoselu,
Jirinwo Communities and oil producing area of
Ilaje Local Government Area of Ondo State)

AND

PLAINTIFF’S WRITTEN ADDRESS IN SUPPORT OF THE ORIGINATING SUMMONS

1.00 INTRODUCTION:
1.01 This written address is in support of the Originating Summons filed by the Plaintiff in this suit and in which the Plaintiff is seeking the following reliefs from this Honourable Court:

a.A DECLARATION that by the provisions of sections 2 (1) (b) and 12 (1) of the Niger-Delta Development Commission, (Establishment etc ) Act, 2000, only persons who shall be indigenes of the oil producing areas of the member states of the 5th Defendant can be nominated/appointed by the 1st Defendant to serve either as State Representative and/or Managing Director and Executive Directors on the governing Board of the 5th Defendant.

b.A DECLARATION that “indigenes of oil producing area” of a member State is not synonymous with and cannot be interchangeably used for “all the citizens of a member State” of the 5th Defendant.

c.A DECLARATION that the only oil producing area of Ondo State is in Ilaje Constituency 1 comprising of Six (6) political wards (otherwise known and called Ilaje Ugbo Communities) in Ilaje Local Government Area of Ondo State.

d.A DECLARATION that the nomination/appointment of the 4th Defendant by the 1st Defendant from Owo Local Government, a non oil producing area in the Northern Senatorial District of Ondo State to serve as the Ondo State Representative on the governing Board of the 5th Defendant is a violation of section 2(1) (b) of the NDDC Act, 2000 and is therefore unlawful, null and void.

e.AN ORDER restraining the 4th Defendant from presenting himself for screening and confirmation by the 2nd Defendant.

f.AN ORDER restraining the 4th Defendant from representing himself as the Ondo State Representative and participating in any matter affecting/pertaining to deliberation of the governing Board of the 5th Defendant in respect of Ondo State.

g.AN ORDER restraining the 5th Defendant from allowing the 4th Defendant to sit and participate in the deliberation of matters pertaining to and affecting the interest of Ondo State on the governing Board of the 5th Defendant.

h.AN ORDER OF PERPECTUAL INJUNCTION restraining the 2nd Defendant from considering and confirming the 4th Defendant as the Ondo State Representative on the governing Board of the 5th Defendant.

i.AN ORDER setting aside and nullifying the nomination/appointment of the 4th Defendant by the 1st Defendant as the Ondo State Representative on the governing Board of the 5th Defendant.

j.A PERPECTUAL INJUCTION restraining the 1st Defendant from nominating and/ or appointing any person (s) whatsoever and by howsoever means from representing Ondo State on the governing Board of the 5th Defendant either as a State Representative and/ or Managing Director and Executive Directors except persons who are “indigenes of the oil producing area” of the State.

1.2.The grounds upon which the said reliefs are sought by the Plaintiff are as follows:

a.In nominating/appointing any person to serve on the governing Board of the 5th Defendant either as a State Representative, Managing Director and Executive Directors, the 1st Defendant is under obligation to follow and adhere strictly to the provisions of sections 2 (1) (b) and 12 (1) of the NDDC, Act, 2000.

b.The only oil producing area of Ondo State is found in Ilaje Constituency 1, (otherwise known and called Ilaje Ugbo Communities), and any nomination/appointment to the governing Board of the 5th Defendant must be from the area.

c.The nomination/appointment of the 4th Defendant from Owo Local Government Area of Ondo State (a non-oil producing Local Government of the State) to represent Ondo State on the governing Board of the 5th Defendant is a violation of section 2 (1) (b) of the NDDC Act, 2000.

d.The 1st Defendant did not follow the relevant provisions of the NDDC Act, 2000 that sets up the 5th Defendant in the nomination/appointment of the 4th Defendant and thereby acted ultra vires his power in recommending the 4th Defendant to the 2nd Defendant for confirmation.

e.The nomination/appointment of the 4th Defendant will deprive and deny the indigenes of the oil producing area of Ugbo Communities in Ondo State the sole privilege of having any of their sons/daughters to represent their interest in the governing Board of the 5th Defendant.

f.If the wrongful nomination/appointment is allowed to sail through, this will open floodgates of representation for indigenes of non oil producing areas in Ondo State to permanently deprive Ugbo Communities what nature and the Law rightful gave to them.

2.00 SUMMARY OF FACTS:
2.01 The Plaintiff is a legal practitioner and an indigene of Obe-Enikanoselu and Jinrinwo communities in the oil producing area of Ilaje Constituency 1 (otherwise known and called Ugbo Communities) in Ilaje Local Government Area of Ondo State. The plaintiff had at one time represented Ondo State on the governing Board of the 5th Defendant between December, 2009 and September 2011. The action is brought by the Plaintiff in a representative capacity for himself, Obe-Enikanoselu and Jinrinwo Communities as well as the oil producing area (Ugbo Communities) of Ilaje Local Government Area of Ondo State.

2.02 Ondo State is one of the member states of the 5th Defendant and as such is always represented in the governing Board of the 5th Defendant each time it is constituted. The Plaintiff being a legal practitioner, community leader and a prominent political leader in the oil producing area of Ugbo communities in Ilaje Local Government Area of Ondo State is worried and disturbed that the 1st Defendant contrary to the provisions of sections 2 (1) (b) of the NDDC Act, 2000 has nominated/recommended the 4th Defendant (who is not an indigene of the oil producing area of Ondo State) to the 2nd Defendant for screening and confirmation as the representative of Ondo State on the governing Board of the 5th Defendant. The plaintiff has stated in his affidavit in support to the Originating summons that the only part of Ondo State that is oil producing is the Ilaje Ugbo Communities of which he is a prominent leader.

2.03 The plaintiff has therefore instituted this action to challenge the nomination/appointment of the 4th Defendant by the 1st Defendant as being contrary to the law that provides for the appointment of members of the governing Board of the 5th Defendant as it affects Ondo State.

3.00 ISSUES FOR DETERMINATION:

3.01 In the light of the above, the court is invited to resolve the following issues:

2.What constitutes an oil producing area of a member State of the 5th Defendant

3.Whether the phrase “indigenes of the oil producing areas” as used in the NDDC Act, 2000 is synonymous with, and can be interchangeably used/construed to mean “all the citizens of a member State” of the 5th Defendant.

4. Whether the nomination/appointment of the 4th Defendant who is not an indigene of the oil producing area of Ondo State by the 1st Defendant to serve as the Ondo State representative on the governing Board of the 5th Defendant is not a violation of section 2(1) (b) of the Niger Delta Development Commission Act 2000 and should therefore be set aside and declared null and void.

4.0ARGUMENT OF ISSUES

ISSUE 1

Whether considering the provisions of the Niger Delta Development Commission (Establishment etc) Act, 2000, particularly Sections 2 (1) (b) and 12 (1) of the Act, the 1st Defendant can nominate/appoint any person (s) to occupy the position of a State Representative, Managing Director and Executive Directors on the governing Board of the 5th Defendant except persons who are indigenes of the oil producing areas of the member states.

4.1.By the provisions of section 2 (1) (b) of the Niger Delta Development Commission Act, 2000, CAP N86, Vol.II, Laws of the Federation of Nigeria, 2004, the 1st Defendant, in making the choice of State representatives to serve on the governing Board of the 5th Defendant is mandated to appoint indigenes of the oil producing areas of the member states.

Section 2(1) (a & b) of the Act provide:
(1)“There is hereby established for the Commission a governing Board (in this Act referred to as “the Board”), which shall consist of:-
(a). a chairman;
(b) one person who shall be an indigene of an oil producing area to represent each of the following member States, that is:-
(i) Abia State,
(i). Akwa-Ibom State,
(iii) Bayelsa State,
(iv) Cross River State,
v)Delta State,
vi)Edo State,
vii)Imo State,
viii)Ondo State; and
ix)Rivers State”

4.02 In the same vein, the 1st Defendant by the provision of section 12 (1) of the same Act is under obligation to appoint the Managing Director and the two Executive Directors from among the indigenes of the oil producing areas of the member States.

4.03 Section 12 (1) of the Act provides:
“There shall be for the Commission, a Managing Director and two Executive Directors who shall be indigenes of oil producing areas starting with the member states of the Commission with the highest quantum of oil and shall rotate amongst member States in order of production, and shall-…”(Underlined is mine)

4.04 It is submitted that from the wordings of the two sections quoted above, the phrase “who shall be indigenes of oil producing area” is paramount in the consideration of who is to be appointed to represent a State in the governing Board of the 5th Defendant. The same also goes for whoever is to be considered as Managing Director and the two Executive Directors in the Board of the 5th Defendant.
4.05 It is submitted that the powers conferred on the 1st Defendant in section 2 (2) (a & b) of the NDDC Act, 2000 in appointing the Chairman and other members of the governing Board of the 5th Defendant is not without restriction.
The section provides:
2 (2)” The Chairman and other members of the Board shall-
a)be appointed by the President, subject to the confirmation of the Senate, in consultation with the House Representatives; and
b)be persons of proven integrity and ability.”
It is submitted that the 1st Defendant must comply with section 2(1) (b) and 12 (1) respectively in deciding as to who to appoint as the State Representatives, the Managing Director and the two Executive Director when exercising his powers under the foregoing section. The 1st Defendant is by the Act restricted in his choice of appointment to the indigenes of the oil producing areas.
4.06 With greatest respect to the powers of the 1st Defendant as provided under section 5 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended),he cannot go outside indigenes of the oil producing areas in making his choice. He does not have that latitude. The Act restricts him to the indigenes of the oil producing areas. He must make his choice among them. The word used by the lawmakers to denote the imperativeness on the 1st Defendant is “shall”. This is mandatory on the 1st Defendant. It does not give the 1st Defendant the discretion of navigating outside the indigenes of the oil producing areas to appoint a state representative, a managing director and the executive directors.
4.07 It is elementary law that where a mandatory word such as shall is used in the statute, it must be complied with as same does not give room for options. In the case of AGIP (NIG.) LTD V. AGIP PETROLI INTL (2010) ALL FWLR (PT 520) 1198 AT 1254 PARAS. H-A, the Supreme Court per Adekeye JSC said:-
“The word ‘shall’ in the ordinary meaning is a word of command which is normally given a compulsory meaning because it is intended to denote obligation. When the word ‘shall’ is used in a statute, it is not permissive, it is mandatory, it imports that a thing must be done. Nigerian LNG Ltd v. African Development Insurance Co. Ltd (1995) 8NWLR (PT416) 677; Col. Kaliel (Rtd) v. Alhaji Aliero (1999) 4NWLR (PT 597) 139”
4.08 Also in the case of CO-OPERATIVE AND COMMERCE BANK (NIGERIA) PLC V. ATTORNEY GENERAL OF ANAMBRA STATE & ORS. (1992) 8 NWLR (PT. 261) 528, the issue of the mandatoriness of compliance with statutory provisions where a statute provides for a particular method of performing a duty imposed by statute was emphasized by Nnaemeka-Agu, JSC at page 556 as follows:
“Now, it is the law that where a statute provides for a particular method of performing a duty regulated by the statute, that method, and no other, must have to be adopted” (underlined is mine).
4.09 It is submitted that the 1st Defendant is under obligation to comply with the provisions of section 2(1) (b) of the NDDC Act, 2000 when considering who to appoint as the State Representative. The 1st Defendant is therefore bound by the Act to appoint the State Representatives, the Managing Director and the two Executive Directors from the oil producing area of a member State. This is because, the persons to be appointed, “shall be” indigenes of oil producing areas.
It must be noted that the phrase indigenes of oil producing areas does not affect the appointment of-
a.Persons to represent non-oil mineral producing States drawn from geo-political zones not represented in the Commission.
b.Representative of the Ministry of Finance
c.Representative of the Ministry of Environment
d.Representative of oil producing companies in the Niger Delta area
It is submitted that out of the nineteen (19) members that make up the Board of the 5th Defendant, the phrase, indigenes of oil producing areas, affects twelve (12) of them.

4.10 It is settled law that where framers of a statute provide a particular mode of doing a thing, it is expected that, that particular mode must be complied with. This is what is known as the expressio unius est exclusio alterius rule

4.11 The expressio unius est exclusio alterius rule applies in the circumstance:

4.12 The law is elementary that where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included.
4.13 In BUHARI V YUSUF (2003) 14 NWLR (PT.841) 446 particularly at 499 paras F-G, the Supreme Court had this to say:

“The principle, well settled, in the construction of statutory provisions, where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included. This is the expressio unius est exclusio alterius rule, meaning the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have been included by implication. See Ogbunyiya v. Okudo (1976) 6-9 SC 32; Udoh v. Orthopaedic Hospital Management Board (1993) 7NWLR (PT 304) 139.”

4.14 Apart from the decision in Buhari v.Yusuf (supra) the rule was also applied by the Supreme Court in EHUWA V. ONDO STATE INDEPENDENT ELECTORAL COMMISSION (2007) ALL. FWLR (PT 351) 1415 at 1430 paras H-1431 A-B where the Supreme Court per Ogbuagu JSC held as follows:

“It is now firmly established in the construction of a statutory provision, where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included. The Latin maxim is “Expressio unius est exclusio alterius” …In other words, the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication with regard to the same issue.”

4.15 Earlier in AWOBUTU V. STATE (1976) NSCC 211 at 223, the Supreme Court per Obaseki Ag. JSC (as he then was) held as follows:
“On the question of signature, it is settled law that where a statute or piece of legislature prescribes that a particular document shall only be signed by a particular officer, it is mandatory that only that officer and no other shall sign the documents we have had the opportunity of reading the authorities, namely; (1)Plymouth corporation v. harell (1968) 1 QB 455 (2)Gladdage v. harringa LBC (1975) 1 WLR 241 at 249 (30 Prince BlutcherEx-parte dettor (1931) 2ch 70 at 72-75 and (4) London County council v. agricultural food products limited and same v. vitamins ltd (1955) 2QB 2-8 cited before us and find that they confirm the law.”

4.16 Thus, in the instant case where sections 2 (1) (b) and 12 (1) of the NDDC Act 2000 used the phrase who shall be indigene(s) of the oil producing area(s), the 1st Defendant is left with no other option than to choose/appoint the State Representatives, the Managing Director and the two Executive Directors (who must be indigenes) from the oil producing areas.

4.17 It is an indisputable fact as stated in paragraphs 19 ,20 ,21, 25, 26, 27, 28, 29, 32, 39 & 40 of the Affidavit in support of the Originating Summons that the only oil producing area of Ondo State is found SOLELY AND ONLY in Ugbo Communities. It logically follows therefore that the choice of the 1st Defendant is limited to the Ugbo Communities when considering the Ondo State Representative on the governing Board of the 5th Defendant.

4.18 What is more, paragraph 58 of the Affidavit in Support clearly indicates that persons who had been appointed to serve on the governing Board of the 5th Defendant since the establishment of the 5th Defendant in year 2000 till 2015 had always been chosen from Ugbo Communities. In the same vein, the Ondo State Government also followed the pattern by appointing indigenes of Ugbo Communities to head her sister agency like that of the 5th Defendant. See paragraphs 59-61 of the Affidavit in Support of the Originating Summons.

4.19 It is therefore submitted that where the 1st Defendant nominates any person
a.Who is not an indigene and
b.Not from oil producing area (Ugbo Communities) in Ondo State, such nomination is a violation of section 2 (1) (b) of the NDDC Act, 2000 and would therefore be set aside on an application to the court.

5.00 At this juncture, a pertinent question must be asked; who is an indigene of the oil producing area?

5.01 Although, the NDDC Act, 2000 and the Interpretation Act do not provide a definition of who is an indigene, we are however not left in the dark as to the definition or meaning of an indigene.

5.02 From the combined definitions of The Mayor Law Lexicon, 4th Edition 2010, volume 3 page 3339, The New International Webster’s Comprehensive Dictionary of the English Language, 2010 Edition page 644 and the Merriam Webster’s Collegiate Thesaurus, the following definitions of the word “indigene” can be gathered.
a.A person who is native to the soil; an aboriginal person; an autochthonous to the locality, different and distinguished from a cultigen.
b.A person who is a native of a locality
c.A person whose ancestors inhabited a place and who lives in conformity with the social, economic and traditions of the locality.
d.A person whose origin is coterminous to the land/locality.
e.A person who derives his existence and foundation from the area.

5.03 It is therefore submitted that an indigene of an oil producing area is a person who is a native, an aborigine, whose existence and foundation are coterminous to the oil producing area. He is autochthonous to the oil producing area. He is different, distinct and distinguished from a cultigen who has been domesticated or assimilated to the oil producing area.

5.04 It is submitted (with greatest respect) that the 1st Defendant cannot at his whims and caprices choose, nominate and appoint any person (s) who are not indigenes (or indigenous) of the oil producing areas to serve on the Board of the 5th Defendant when considering the State Representatives, the Managing Director and the two Executive Directors. It is a condition precedent that must be fulfilled by the 1st Defendant.

5.05 It is submitted that mere residency in the oil producing area of a member state does not qualify a person to be appointed as a State Representative, Managing Director and Executive Director to the Board of the 5th Defendant. The individual to be appointed must be an indigene.

5.06 It is therefore submitted that where a person merely resides in the oil producing area, but his is not an indigene of the oil producing area, the 1st Defendant cannot nominate such a person as a State Representative, Managing Director or Executive Director to serve on the Board of the 5th Defendant.

5.07 It is submitted that by the expressio unis est exclusio alterius rule and the decisions of the Supreme Court in Buhari v Yusuf (supra) and Awobutu v. State (supra), only indigenes of the oil producing areas of a member state are eligible to be appointed as State Representatives, Managing Director and Executive Directors of the 5th Defendant. To do otherwise is to render the provisions of sections 2(1)(b) and 12 (1) of the NDDC Act, 2000 otiose.

5.08 It is submitted that by the averment of the plaintiff in paragraphs 51-53, the 4th Defendant is not an indigene of the oil producing area of Ondo State. He is therefore not qualified to be nominated by the 1st Defendant to represent Ondo State on the governing Board of the 5th Defendant.

6.00 ISSUES 2 & 3 TO BE ARGUED TOGETHER.

6.01 The plaintiff hereby seeks to argue issues 2 and 3 together.

2.What constitutes an oil producing area of a member State of the 5th Defendant.

6.02 Again, the NDDC Act, 2000 does not define “an oil producing area” or what constitutes “an oil producing area” of a member State.

6.03 There is no doubt (as it stands today in the nine (9) oil producing States of the Niger Delta) that not all the local government areas in each member state of the 5th Defendant are oil producing. With regards to Ondo State and as stated in paragraphs 19 ,20 ,21, 25, 26, 27, 28, 29, 32, 39 & 40 of the Affidavit in support of this Originating Summons, it is only Ilaje Constituency 1 (otherwise known and called Ugbo Communities) that is oil producing.

6.04 The earlier law, that is, the Oil Mineral Producing Areas Development Commission (OMPADEC) Decree No. 23 of 1992 in section 16 thereof defines oil mineral producing area as follows:
“Oil mineral producing area means, the oil mineral producing areas in the States specified in section 3 of this Decree”
Under section 3 of the said Decree, eight (8) States were named as oil producing States, to wit: Rivers, Delta, Akwa-Ibom, Imo, Edo, Ondo, Abia and Cross River.

6.05 It is the law that in the interpretation of legislations, the courts sometimes take into account the historical antecedent of the piece of legislation being interpreted. In this wise, a previous legislation may be relevant to the interpretation of a latter legislation in two ways-
a. Firstly, the course which legislation or a particular point has followed often provides an indication as to how the present statute should be interpreted. It is in such cases presumed that the interpretation in the former must have been known to those who drafted the latter; and
b. Secondly, light may be thrown on the meaning of a phrase or word in a statute under construction by reference to a similar phrase or word in an earlier statute dealing with the same or cognate subject matter. (Italics and underlined are mine for emphasis). The above was position of the court in the case of LANLEHIN V. AKANBI (2016) 2NWLR (PT 1495) 1 at pages 20-21, paras G-C

6.06 Flowing from the above therefore, the under mentioned sections of the OMPADEC Decree No. 23 (supra) will be relevant and appropriate in the interpretation of the NDDC Act, 2000 which is a latter law in which the phrase “an oil producing area” was not defined. In sections 2 (1) (a, b, e, f, I, j) and 2 (2) (i) (a) of the OMPADEC Decree (supra), copious differences exist between oil producing areas and oil producing States. The sections provide:
Section 2 (1)(a) to receive and administer the monthly sums from the allocation of the Federation Account in accordance with confirmed ratio of oil production in each State-
section 2 (1) (a) (i) for the rehabilitation and development of oil mineral producing areas

section 2 (1)(a) (ii) for tackling ecological problems that have arisen from the exploration of oil minerals

section 2(1) (b) to determine and identify, through the Commission and the respective oil mineral producing States, the actual oil mineral producing areas and embark on the development of projects properly agreed upon with the local communities of the oil mineral producing areas

6.07 It is submitted that from section 2 (1) (b) above, a marked difference exists between oil mineral producing States and oil mineral producing areas. It is further submitted that an oil mineral producing area is a fraction or part of an oil mineral producing State. The former can be found in the latter and not vice versa. When an “area” is referred to therefore in the law, it means a portion or part of a State. It cannot refer to the entire State when the word “area” is used.

6.08 Merriam-Webster’s Collegiate Thesaurus defines “area” as a locality, district, neighborhood, vicinage and vicinity. In the same token, The New Webster’s Dictionary of the English Language (International Edition) defines “area” as a district, region or vicinity. A State (as used in the NDDC Act, 2000) is an autonomous component unit of a country. It is therefore submitted that a “State” as used in the NDDC Act is not synonymous with an “Area” as used in the same Act.

Again in OMPADEC Decree, No. 23 of 1992 (supra), the under mentioned sections also consolidate the argument that a wide difference exits between “oil producing State” and “oil producing Area”.
Section 2(1)(e) to obtain from the Nigerian National Petroleum Corporation the proper formula for actual oil production of each State, Local Government Area and community and to ensure the fair and equitable distribution of projects, services and employment of personnel in accordance with recognized percentage production

Section 2 (1) (f) to consult with the Federal Government through the President, the State, Local Government and oil mineral producing Communities regarding projects, services and all other requirements relating to the special fund

Section 2 (1) (i) to liaise with the oil producing companies regarding the proper number, location and other relevant data regarding oil mineral producing areas and

Section 2 (1) (j) to execute other works and perform such other functions which in the opinion of the Commission is geared towards the development of the oil mineral producing areas.

Section 2 (2) (a). The sums received by the Commission under subsection (1) (a) of this section shall-
a)Be used for the rehabilitation and development of the oil mineral producing areas on the basis of the ratio of the oil produced in a particular State, Local Government Area or community and not on the basis of dichotomy of on-shore or off-shore oil production”

6.09 A community reading of the sections quoted above would reveal the following:-
a.There is a marked difference between an oil mineral producing State and oil mineral producing areas.
b.An oil producing area is a part or fraction of an oil producing State.
c.There is also a difference between oil producing Local Government and oil producing areas.
d.That oil producing areas and oil producing communities are interchangeable used.
e.That not all sections of a State, Local Government Area may be referred to as oil mineral producing areas.
f.That the phrases “oil producing State” and “oil mineral producing areas” ARE NOT interchangeably used for each other.

6.10 What then constitutes an oil producing area of a member state?

6.11 It is submitted that the features of what constitute an oil producing area of a member State will comprise the following:
1.Oil companies must be working in the locality.
2.The oil companies must be producing oil
3.The oil mineral so produced must be attributable to the production quota of the State.
4.There must be relationships between the oil companies and the people living in the area where oil production or exploitation takes place.
5.The identity of the area must be known in terms of map and the oil mining leases (OMLs) granted to the oil companies by the government.
6.12 From the foregoing, it is submitted that any part of the state where the above mentioned features are not found cannot be described as oil producing area.

6.13 It is further submitted that the area in Ondo State where the above criteria are SOLELY AND ONLY found is in Ugbo Communities in Ilaje Local Government Area of Ondo State. See paragraphs 15-29, 32, 39, 50, 58-61 of the Affidavit in support of the Originating Summons and exhibits BE1-BE7attached thereto.

6.14 It is submitted flowing from the above that an oil producing area is the locality, vicinity, environment and neighborhood where oil companies carry on exploration and exploitation of oil mineral.

6.15 By the averments of the plaintiff in paragraphs 15-61of the affidavit in support of the Originating Summons and the exhibits attached thereto, it has been copiously stated that Ilaje Constituency 1 (otherwise known and called Ugbo Communities) is the only area where oil mineral is produced in Ondo State. The locality (Ugbo Communities) is the only oil mineral producing area of Ondo State.

6.16 It is submitted that no other area, local government and district in Ondo State other than Ugbo Communities can be described as oil producing area.
6.17 It follows from the foregoing that:-
a. an oil producing area is distinct and different from an oil producing State
b. whereas an oil producing area is a part or fraction of an oil producing State, the situation is NOT vice versa.
c. an oil producing area can be interchangeably used for oil producing communities, same cannot be said of an oil producing State.
d. a section of a State can be oil producing, while the remaining parts of the State may not be oil producing.
e. the activities of oil companies must be going on in an oil producing area, the same may not happen in the localities that are not oil producing.
f. the production of oil in an oil producing area must contribute in making a State part of the 5th Defendant.
g. the people in the area where oil is producing usually have some relationships with the oil companies.
h. there are areas of demarcation where the oil companies must operate. Government, as a matter of course must grant Oil Mining Leases (OMLs) to oil companies operating in a locality.

6.18 It is submitted that the above can ONLY BE FOUND in Ugbo Communities of Ilaje Local Government Area of Ondo State.

6.19 It is further submitted that the phrase “shall be indigene of an oil producing area” does not have any ambiguity. It simply means indigene of an oil producing area. It should not be interpreted to mean “indigene of oil producing State”. The wordings of the Act should be given its literal meaning since there is no ambiguity in it. This is the intention of the framers of the Act. The Honourable Court is urged to so hold.
.
6.20 Had the lawmakers intended that the entire State be classified as oil producing area, the Act would have said so expressly, The Act having not said so, such intention cannot be read into the Act as it is not in the power of the court to go outside the words used in the Act. In ATTORNEY GENERAL OF KANO STATE V. ATTORNEY GENERAL OF THE FEDERATION (2007) ALL FWLR (PT364) 238 at page 258, paras B-C the Supreme Court held as follows:

“The duty of the Supreme Court and indeed any other court is to interpret the words contained in the constitution and any other statute in their ordinary and literary meaning. Certainly it is not the duty of the Court to go outside words used in a statute and import an interpretation which may be or is convenient to it or the parties or to one of the parties.”

6.21 Thus, the duty of the court in the instant case is to give the words in the above sections of the Act their ordinary meaning and not to go outside the Act to hold that an indigene of an oil producing area is the same with any person who is from the State whether the locality the latter person comes from is oil producing or not. To hold otherwise is to defeat the purpose, not only of section 2(1) (b), but also render section 12 (1) of the Act useless and make the intendment of the lawmakers of no moment.

7.00 ISSUE 4
Whether the nomination/appointment of the 4th Defendant who is not an indigene of the oil producing area of Ondo State by the 1st Defendant to serve as the Ondo State representative on the governing Board of the 5th Defendant is not a violation of section 2(1) (b) of the Niger Delta Development Commission Act 2000 and should therefore be set aside and declared null and void.

7.01 It is submitted that by the averments of the plaintiff in paragraphs 40-45,51-54, the 4th Defendant is not from the oil producing area of Ondo State. The 4th Defendant hails from Owo Local Government Area in the Northern Senatorial District of Ondo State. The plaintiff copiously deposed to facts showing that the 4th Defendant is alien to the oil producing area as he is neither an indigene of the oil producing area nor is he resident in the oil producing area.
7.02 It is submitted that the 4th Defendant is far from the commonwealth of the oil producing area of Ondo State. The plaintiff has asserted that ONLY UGBO COMMUNITIES in Ondo State is classified as oil producing; that it is only indigenes of the Ugbo Communities that are qualified to be appointed as Ondo State Representative on the governing Board of the 5th Defendant.
7.03 It is submitted that the nomination of the 4th Defendant to serve as Ondo State Representative on the Board of the 5th Defendant is an aberration and a misnomer. This is so because the 4th Defendant is not “an indigene of the oil producing area”. His Local Government (Owo) cannot be imported by the fiat of the 1st Defendant to be classified as oil producing area. Owo has no iota of the features of an oil producing area as adumbrated above.
7.04 By the averments of the plaintiff in the Affidavit in Support of the Originating Summons, no oil company is operating in Owo, there is no production of oil mineral taking place in Owo; oil companies operating in Ugbo Communities have no relationship whatsoever with Owo people; there is no single presence of any oil producing company in Owo; there is no licence granted to any oil company to operate in Owo. In fact, Owo is a barren land when it comes to oil exploration and exploitation.
7.05 The nomination of the 4th Defendant (who is not an indigene of the oil producing area of Ondo State) by the 1st Defendant to serve on the Board of the 5th Defendant is a contravention of section 2 (1) (b) of the NDDC Act, 2000 and a breach of the standard practice set by the predecessors of the 1st Defendant. See paragraph 58 of the affidavit in support and Exhibit BE7
7.06 It is submitted that where a violation of the law (such as the one under consideration) occurs, it is the duty of the court upon an application to this effect to set aside, declare null and void such flagrant breach of the law. Thus,in the case of ADELEKE V. OYO STATE HOUSE OF ASSEMBLY (2007) ALL FWLR (PT. 345) 211 at pages 282-286, paras, E-A, the court held that it is empowered under section 1(3) of the Constitution to pronounce null and void any acts of the executive or legislature including any purported legislative acts done under 188 which are required to be done legally and validly, as prescribed by its provisions where the acts are inconsistent with the constitution as the supreme law. According to Chukwuma-Eneh, JCA,
“I have reproduced the said paragraphs in order to bring to the preview the alleged legislative acts complained of as breaches of section 188. I have now to consider whether they have strictly complied with the provisions of section 188 and where it is so the court’s jurisdiction will ordinarily be ousted pursuant to section 188(10). That is to say, whether they have been performed legally and validly that is, in accordance with section 188; otherwise, the court can intervene under section 1(3) to declare such purported legislative acts null and void as they are not otherwise protected under section 188(10) and clearly inconsistent in execution with the provisions of section 188 and the Constitution” (Underlined is mine).

7.07 It is therefore submitted that a breach or violation of the NDDC Act, 2000 by the 1st Defendant in nominating a non indigene from a non oil producing area of Ondo State to serve on the Board of the 5th Defendant should be declared null and void.
7.08 It is also submitted that the executive powers conferred on the 1st Defendant by the provisions of section 5(1)(a & b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended-1999 Constitution) do not preclude the 1st Defendant from acting in conformity with the provisions of the NDDC Act, 2000. Section 5 (1) of the 1999 Constitution provides:
“5-(1).Subject to the provisions of the Constitution; the executive powers of the Federation-
a)Shall be vested in the President and may, subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation; and
b)Shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws.”
7.09 Section 5 (1) (a) of the 1999 Constitution makes the powers exercisable by the 1st Defendant, “….subject as aforesaid and to the provisions of any other law made by the National Assembly, be exercised by him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation…” (Italics and underlined are mine). In the same vein, section 5 (1) (b) of the 1999 Constitution (as amended) makes it mandatory on the 1st Defendant (President) that in exercising his executive powers, he shall extend same to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws.
It is submitted that the NDDC Act, 2000 is one of the “any other law [ (s)] made by the National Assembly” for which the 1st Defendant must exercise his executive powers in compliance thereto.
7.10 It is humbly submitted that the 1st Defendant having neglected, failed and refused to comply with the provision of section 2 (1) (b) of the NDDC Act, 2000 in his nomination of the 4th Defendant as the Ondo State Representative on the governing Board of the 5th Defendant, the honourable court is urged to declare the nomination of the 4th Defendant as a contravention of section 2 (1) (b) of the NDDC Act and therefore null and void.
7.11 It is submitted that a ‘mere’ letter of the 1st Defendant to the 2nd Defendant nominating the 4th Defendant to represent Ondo State on the Board of the 5th Defendant without amending the NDDC Act ( which mandates the 1st Defendant to nominate a State Representative from indigenes of the oil producing area) is an attempt at re-writing the NDDC Act, 2000.
7.12 It is submitted that such a letter cannot in the widest imagination of interpretation amend the clear mandatory provision of section 2 (1) (b) of the NDDC Act, 2000. It is the law that a letter (such as the one written to the 2nd Defendant) cannot repeal or amend an enactment even though it is a subsidiary legislation. Thus, in the case of ABUBARKAR V. BEBEJI OIL AN ALLIED PRODUCTS LTD (2007) ALL FWLR (PT 362) 1855, the Supreme Court Per Ogbuagu JSC, quoting with approval the judgment of Salami JCA (as he then was) said at page 1908 as follows:
“…These letters were mere expression of intent which were not manifested by giving it statutory teeth. A letter cannot repeal or amend an enactment even though it is a subsidiary legislation such as exhibit V. The implication of the decision of the learned trial Judge is to declare the legal notice invalid on the strength of a common letter! May God save us from the days when statutory provisions would be amended by mere exchange of correspondence”. (Underlined is mine).
7.13 It is the law that where there is fundamental failure to comply with the requirement of a statute the issue is not of irregularity, but a nullity. This principle of law was upheld by the Supreme Court in the case of NIGERCARE DEV. CO. LTD V. A.S.W.B (2008) 8NWLR (1093) 498. Similarly, the Supreme Court has held that a breach of a law made by the National Assembly will incur severer and fatal consequences than a breach of rule of procedure. Thus, in the case of NYESON V. PETERSIDE & ORS. (2016) LPELR-40036 (SC), the Supreme Court per Muhammad JSC at page 104 paras A-C said:
“a distinction must always be drawn between the effect of a law made by the legislature (National Assembly: i.e. the Electoral Act,: the Constitution, etc) and a rule of procedure (by whatever name called) by any other authority with a view to facilitating the smooth running or operation of a given institution. Breach of the former can be severer and fatal than breach in case of the latter (Italic, bold and underlined are mine).
7.14 It is submitted that the breach of section 2 (1) (b) of the NDDC Act, 2000 committed by the 1st Defendant in nominating the 4th Defendant (who is not an indigene of the oil producing area of Ondo State) to represent the State on the governing Board of the 5th Defendant is a fundamental breach of the act of the National Assembly which must be declared a nullity. A breach of this law should incur severer and fatal sanctions from the court.
7.15 It is the law that where a statute clearly provides for a particular act to be performed; failure to perform the act on the part of the party will not only be interpreted as a delinquent conduct, but will be interpreted as not complying with statutory provision. The consequences that will flow from the non-compliant with the statutory provision, even where the law does not provide for a sanction, is that it is against the party in default. The Court of Appeal in the case of ALFA AROWOSAYE V. FELIX OLUWASEGUN OGEDENGBE & ANOR. (2009) ALL. FWLR (PT. 476) 1926 particular at pages 1972-1973 paras G-A quoted Niki Tobi JSC in the case of Adesanoye &ors v. Adewole (2006) All FWLR (Pt.340) 1000 as follows:
“Where a statute clearly provides for a particular act to be performed; failure to perform the act on the part of the party will not only be interpreted as a delinquent conduct but will be interpreted as not complying with the statutory provision:
“In such a situation, the consequence of non-compliance with the statutory provision follows, notwithstanding that the statute did not specifically provide for sanction. The court can by the invocation of its interpretative jurisdiction, come to the conclusion that failure to comply with the statutory provision is against the party in default”
7.16 A public body or authority invested with statutory powers must act within the law and take care not to exceed or abuse its power, it must keep within the limits of the authority committed to it. It must act in good faith and reasonably. See the case of PSYCHIATRIC HOSPITAL MANAGEMENT BOARD V. EJITAGHA (2000) 11 NWLR (PT. 677) 154.
7.17 Similarly, in the case of IKPE &ANOR. V. ELIJAH &ORS. (2011), LPELR-4516 (CA), the Court of Appeal said:
“…where a statute clearly provides for a particular act to be done or performed; failure to perform the act, on the part of a party, as directed by the statute will be interpreted as not only a delinquent conduct but also as not complying with the statute by the party enjoined or obligated to do so.” Per EKO, JCA. (P. 12, paras. B-C)
Again,in the case of UNIVERSITY OF CALABAR TEACHING HOSPITAL & ANOR. V. BASSEY (2008) LPELR-8553 (CA), the Court of Appeal re-affirming the position of the law said:
“where a statutory requirement or the exercise of a legal authority is laid down, it is expected that the public body invested with such authority would follow the requirement to the detail. The non-observance in the process of reaching any decision renders the decision itself a nullity…..”
7.18 It is therefore submitted that the 1st Defendant’s action in nominating the 4th Defendant as the Ondo State Representative to serve on the Board of the 5th Defendant does not follow the clear and unambiguous provision of section 2 (1) (b) of the NDDC Act, 2000. With greatest respect to the powers of the office of the 1st Defendant, it is humbly submitted his action depicts non-observance of the provision of the NDDC Act (supra). The non-observance in the process laid down by the NDDC Act renders the decision taken by the 1st Defendant a nullity
8.00 CONCLUSION
i. The 1st Defendant is under obligation to comply with the provisions of the NDDC Act, 2000 in the appointment of State Representatives, Managing Director and the two Executives Directors who are to serve on the Board of the 5th Defendant.
ii. The powers of choice given by the NDDC Act, 2000 to the 1st Defendant in the appointment of State Representatives, Managing Director and Executive Directors is restricted to indigenes of the oil producing areas of member States.
iii. With regards to Ondo State, the ONLY oil producing area is Ilaje Constituency 1 (otherwise known and called Ilaje Ugbo Communities)
iv. The choice of the 1st Defendant in nominating/appointing a State Representative for Ondo State is limited to Ilaje Ugbo oil producing communities
v. The 4th Defendant is not an indigene of the oil producing area. His Local Government (Owo) is not an oil producing part of Ondo State.
vi. The nomination/appointment of the 4th Defendant who is not an indigene of Ilaje Ugbo oil producing area is a violation of section 2 (1) (b) of the NDDC Act, 2000.
vii. That the violation in (vi) above is not a mere irregularity, BUT VERY FUNDAMENTAL VIOLATION OF THE NDDC ACT.
viii. The Honourable Court should set aside and declare null and void the nomination/appointment of the 4th Defendant on the ground that it is a violation of section 2 (1) (b) of the NDDC Act, 2000.

9.00. I respectfully urge the Court to grant all the reliefs sought in the Originating Summons.

Dated the day of 2016.

FOR SERVICE ON
1.1st Defendant:
President, Federal Republic of Nigeria.
c/o office of the Attorney General of the Federation,
Ministry of Justice, Maitama, Abuja.

2.2nd Defendant:
The National Assembly, Federal Republic of Nigeria.
National Assembly Complex,
Three Arms Zone, FCT, Abuja.

3.3rd Defendant:
The Attorney-General of the Federation.
Office of the Attorney General,
Ministry of Justice, Maitama, Abuja.

4.4th Defendant
Mr. Olatokunbo Ayotunde Ajasin
Idiape Area, New Bodija, Ibadan, Oyo State.
Tel: 08034030627

5.5th Defendant:
Niger Delta Development Commission (NDDC)
167 Aba Road, Port-Harcourt,
River State.