President’s nominations, NDDC Act and 1999 Constitution

Muhammadu Buhari

Muhammadu Buhari

The nomination of Engr Adjogbe Ajenakevwe Samuel by President Muhammadu Buhari, as the Executive Director, Projects of the Niger Delta Development Commission (NDDC) has raised some commentary and views by personalities, groups and allied stakeholders.

This legal espouse attempts to examine the above Nomination by Mr. President vis a vis and in juxtaposition with the provisions of the Niger Delta Development Commission Act Cap N87 Laws of Federation 2004 as well as the germane Sections of the 1999 Constitution as amended.

The hereunder is the hub of the matter as x-rayed from a legal perspective. Relevant Section of the NDDC Act, Cap N87 Laws of Federation 2004. Specifically the NDDC Act provides in Section 5 (2) that: “Where a vacancy occurs in the membership of the Board it shall be filled by the appointment of a successor to hold office for the remainder of the term of office of his predecessor, so however, that the successor shall represent the same interest and shall be appointed by the President, subject to the confirmation of the Senate, in consultation with the House of Representatives.”

Here premium is based on same interest. Hitherto, Section 2 of the NDDC Act, provides that: “There is hereby established for the Commission a governing Board (in this Act referred to as “the Board”), which shall consist of – (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; (ii) 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.

Here premium is based on indigene of an oil producing area. In addition under Section 4 of the NDDC Act, the rotation of chairmanship as between “Member States” to wit: “The office of the chairman shall rotate amongst the member state of the Commission in the following alphabetical order-(a) Abia State; (b) Abia State (c) Akwa Ibom State (d) Bayelsa State; (e) Cross River State; (e) Delta State (f) Edo State; (g) Imo State; (h) Ondo State; and (i) Rivers State. Here premium is based on Member State.

Accordingly “Same Interest” under Section 5(2) of the NDDC Act above, in the first hand is being “An Indigene of an Oil Producing Area”.

On the second hand, “Same Interest” under Section 5(2) of the NDDC Act above, is based on the Appointee coming from a Member State of the Commission.

Consequently, from a combination of the two Sections above, “Same Interest” means an indigene of an oil producing area who is also from a Member state” as set out in Sections 2 and 4 of the NDDC Act above.

Instructively, the operative words of Section 5(2) above is “Same Interest” which obviously denotes people coming from any Oil Producing Area of a Member State as opposed to “Same Tribe”.

If the Act had intended to convey “Same Interest” as meaning “Same Tribe”, it would have expressly stated so.

This principle of interpretation is expressed in the translated Legal maxim to wit “An express mention of a word leads to the exclusion of those not mentioned”.

State as the Index of Representation for Nomination and Appointment under the Constitution. Quite importantly, the common index of representation under our 1999 Constitution as amended is the State! The State is the basis upon which any citizen can be recognised and appointed under the Constitution.

The Constitution right from its second Section has fundamentally classified Nigeria as a Conglomeration of “States” and not “Tribes”. Thus Section 2(2) thereof, declares that “Nigeria shall be a Federation consisting of States and a Federal Capital Territory. There shall be thirty six States in Nigeria, that is to say, Abia, Adamawa, Akwa Ibom, Anambra, Bauchi, Bayelsa, Benue, Borno, Cross River, Delta, Ebonyi, Enugu, Gombe, Imo, Jigawa, Kaduna, Kano, Katsina, Kebbi, Kogi, Kwara, Lagos, Nasarawa, Niger, Ogun, Ondo, Osun, Oyo, Plateau, Rivers, Sokoto, Taraba, Yobe and Zamfara”.

Clearly from the above, Nigeria is made up of “States” and not “Tribes”. Anything to Contrary therefore, will be null, void and of no effect. In addition, for Ministerial Nomination Section 147 of the said Constitution provides that: “There shall be such offices of Ministers of the Government of the Federation as may be established by the President.Any appointment under subsection (2) of this section by the President shall be in conformity with provisions of section 14(3) of this Constitution”. Provided that in giving effect to the provisions aforesaid the President shall appoint at least one Minister from each State, who shall be an indigene of such State”.

The payment of derivation under the Constitution is also embalmed within the State wherein the natural resources are located.

Thus Section 162(2) provides that: “The President, upon the receipt of advice from the Revenue Moblisiation Allocation and Fiscal Commission, shall table before the National Assembly proposals for revenue allocation from the Federation Account, and in determining the formula, the National Assembly shall take into account, the allocation principles especially those of population, equality of States, internal revenue generation, land mass, terrain as well as population density. Provided that the principle of derivation shall be constantly reflected in any approved formula as being not less than thirteen per cent of the revenue accruing to the Federation Account directly from any natural resources.”

We also rely in the locus classicus of AG of Fed v AG Abia (No2)(2002)6 NWLR (pt 764) 542 particularly the lead judgment of Ogundare JSC of blessed memory at page 697 paras D-G. Even on the above issue of Revenue Allocation, including by extension Appointment and Nomination, the Constitution relies strictly on State as the personification of the citizen(s) to be so appointed and the State to receive its allocation. And for this proposition, the Constitution directs under Section 299 that for the Revenue Allocation, Nomination and Appointments, the Federal Capital Territory should be deemed to a State.

Accordingly, Section 299 provides to wit: “The Provisions of this Constitution shall apply to the Federal Capital Territory, Abuja as if it were one of the States of the Federation;…” The Words “Same Interest” Under Section 5(2) of NDDC Act, means “Any Indigene of an Oil Producing Area and from any Member State”.

As augmented above, being an indigene from an oil producing area within a member state is the common denominator for the purpose of nomination of this nature, into the Board of the NDDC (as in this instant case) of Engr Samuel Adjogbe by Mr. President.

From the legal synopsis above, it is axiomatic that the words “Same Interest” as applied in Section 5(2) of the said NDDC Act, represents a similar oil producing area from any member state as the predecessor in office and not “Same Tribe” of the said predecessor.

To Intepret “Same Interest” as “Same Tribe” will Violate Section 42 of the Constitution. To reduce Government nomination and appointment to tribe, will promote tribalism, and indeed since we have over 250 ethnic groups in Nigeria it will be most difficult, if not impossible for Government to always nominate its appointees consistently from the same Tribe as a predecessor .

Added to the above, Section 42 of the Constitution has abolished any discriminatory law or administrative action by Government that gives priority to tribalism or declines to nominate any qualified citizen into Government or any office of its Agencies (as in this instance) on the ground of “Tribe”:

Consequently, Section 42 provides as follows: “A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person be subject either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject;

Accordingly, if Section 5(2) of the NDDC Act is implemented in such a way as to say “Same Interest” means “Same Tribe”, that will be offensive to Section 42 above and will be null, void and of no effect under Section 1(3) thereof.

We rely for this contention on the Case of AG Bendel V AG Fed (1981) 3NCLR I. Still talking about Engineer Samuel Adjogbe’s nomination, is the fact that Section 5(2) of the NDDC Act did not expressly define “Same Interest”, which is obviously in deference and subservience to Sections 2 and 4 of the NDDC Act above, which by necessary implication already only defined “Same Interest” as an “Indigene from Oil Producing Area of any Member State” as in this case, Engr Samuel A. Adjogbe from an Oil Producing Area (ie Evwreni Kingdom) within a Member State, (ie Delta State), in Nigeria. And that means “Same Interest” as Oil and Gas Resources from where the nominated successor hails from, being the Same Interest with the Predecessor’s Community as also having Oil and/or Gas Resources.

Indigenes from a Different Member State or Tribe, And also from Different Oil Producing Areas, Still have “Same Interest” to be Nominated As Reflected in Section 5(2) of the NDDC Act. Evwreni Kingdom is an Oil Producing Area and hosts a Flow Station to support this undeniable fact. And Evwreni is in Delta State ie Member State of the NDDC. This already confers on Engr Samuel Adjogbe of Delta State with the “Same Interest” with his Predecessor who also hails from an Oil Producing Area from Delta State as well. So they both have the Same Interest ie being from Oil Producing Areas and Same Interest being from the Same Member State, ie Delta State!
State and/or Oil Producing Areas are the Index of Representation under the NDDC Act 2000. Above all, even under the said NDDC Act, it uses “Member State” as the index and basis for collating the aggregate income and/or contributions to the Commission and NOT THOSE OF TRIBES!

Accordingly, Section 7(2) of the NDDC Act, declares that “In exercising its functions and powers under this section, the Commission shall have regard to the varied and specific contributions of each Member State of the Commission to the total national production of oil and gas”.

The above provision says “Member States” and not “Member Tribes”. From the plethora of law so far set out above and pontificated upon, it is axiomatic that being an indigene of an Oil Producing Area from a Member State is the basis upon which “Same Interest” as used in Section 5(2) of the NDDC Act. And same should be implemented in the Nomination and/or Confirmation of the Board Members of the Commission including, Engr Samuel A. Adjogbe.

Chief Emmanuel Agwariawvodo, from Delta State was Nevertheless, replaced by Hon Timi Aliabe from Bayelsa State as Managing Director of NDDC. Obviously applying the principle of “Same Interest” as being synonymous with belonging to an “Oil Producing Area of a Member State”, erstwhile President Olusegun Obasanjo, replaced Chief Emmanuel Agwariawvodo, who hails from Okpare Olomu an Oil Producing Area within a Member State, ie Delta State, with Hon Timi Aliabe who equally hailed from an Oil Producing Area from within a Member State ie Bayelsa State.

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