Agbakoba sues FG on NNPC appointment

Dr. Olisa Agbakoba has filed a suit at the Federal High Court, Abuja to challenge the non inclusion of the South East Zone of Nigeria, in appointments to the Board of the Nigerian National Petroleum Corporation of Nigeria.
He alleges that the appointment made by the Federal Government of Nigeria, contravenes the provisions of S.14 of the Constitution and also the Federal Character Commission, Act and the provisions of Sections 42 of the Constitution of Nigeria that prohibits discrimination of any of Nigeria’s ethnic groups such as, in this case, the South East.
The Federal High Courts has been requested to declare the alleged lopsided appointments of Board members of the South East Zone, unconstitutional, null and void. No date has been fixed to hear the suit.
Joined in the suit are the Attorney General of the federation; Nigerian National Petroleum Corporation (NNPC) and the Federal Character Commission
This is a Public Interest Litigation and an Application to enforce the fundamental rights to freedom from discrimination of the Applicant and other Nigerians indigenous to the states in the South-East Geopolitical Zone, comprising of Anambra, Enugu, Ebonyi, Imo and Abia States guaranteed by Section 42 of the 1999 Constitution of the Federal Republic of Nigeria (1999 Constitution).
The Application also requests the Honourable Court to restrain the Federal Government of Nigeria, represented by the 1st Respondent, from further violation of the principles of democracy, social justice and Federal Character prescribed by Section 14(1) and (13) of the 1999 Constitution, as well as the guiding principles and formulae for the distribution of posts, prescribed by Part 1, Sections 1 and 4 of Guiding principles and formulae for the distribution of all cadres of posts, the subsidiary legislation pursuant to Section 4(1)(a) of the Federal Character Commission (Establishment, etc.) Act.
The Application is supported by a Statement, as prescribed by Order 2, Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009 which sets out the Applicant’s name and description, the reliefs sought and the grounds upon which the reliefs are sought. The Application is also supported by an Affidavit deposed by the Applicant himself, setting out the facts upon which the Application is made.
The summary of the Grounds is that the Applicant a native of Onitsha in Anambra State of Nigeria brought the present action against the Federal Government of Nigeria, represented by the 1st Respondent, on Applicant’s behalf and on behalf of other Nigerians indigenous to the states in the South-East Geopolitical Zone, comprising of Anambra, Enugu, Ebonyi, Imo and Abia States.
The reason for the action is that the Federal Government has always discriminated against Nigerians indigenous to the states in the South-East Zone in the appointments into the Board of the 2nd Respondent. One of the instances of discrimination of that on 5 July 2016 the Federal Government of Nigeria appointed the following persons as members of the Board of the 2nd Respondent:
(1) Dr. Tajuddeen Umar (North East)
(2) Dr. MaikantiBaru (North East)
(3) Mr. Abba Kyari (North East)
(4) Mr. Mahmoud Isa-Dutse (North Central)
(5) Mallam Mohammed Lawal
(6) Mallam Yusuf Lawal
(7) Dr. Emmanuel IbeKachikwu (South-South)
(8) Dr. Thomas M.A John (South-South), and
(9) Dr. Pius O. Akinyelure (South-West)
None of these persons appointed to fill the nine positions are from the states comprising the South-East Geopolitical Zone, while more than one person were appointed from some of the Geo-Political Zones.
The Federal Government, by the lopsided appointment accords numerical advantage to States in other Geo-Political Zones, to the detriment of the Applicant’s South-East Geopolitical Zonethat is totally excluded from the board of the 2nd Respondent
Section 42 of the 1999 Constitution guarantees the right of every citizen of Nigeria to freedom from discrimination and prohibits any administrative or executive action of the government or application of any law in force in Nigeria discriminating between Nigerians or accords any privilege or disability to any Nigerian, on account of ethnicity, state of origin, etc.
Also Section 14(1) of the 1999 Constitution prescribed that “the Federal Republic of Nigeria shall be a state based on the principles of democracy and social justice”, while Section 14 (13) prescribed the Federal Character principle in the following words:
“The composition of the government of the Federation or any of its agencies and the conduct of its affairs shall be carried out in such a manner as to reflect the federal character of Nigeria and the need to promote national unity, and also to command national loyalty, thereby ensuring that there shall be no predominance of persons from few states or from a few ethnic or other sectional groups in that Government or any of its agencies.”
Notwithstanding Section 14(1) and (13) of the 1999 Constitution, Sections 1 and 4 of Guiding principles and formulae for the distribution of all cadres of posts, the subsidiary legislation pursuant to Section 4(1)(a) of the Federal Character Commission (Establishment, etc.) Act, also provides as follows:
“Each State of the Federation and the Federal Capital Territory shall be equitably represented in all national institutions and in public enterprises and organisations”
“Where the number of positions available cannot go round the States of the Federation or the Federal Capital Territory, the distribution shall be on zonal basis but in the case where two positions are available, the positions shall be shared between the northern and southern zones.”
Notwithstanding Section 14(1) and (13) of the 1999 Constitution, the discriminatory appointments also violates the guiding principles and formulae for the distribution of posts, prescribed by Part 1, Sections 1 and 4 of Guiding principles and formulae for the distribution of all cadres of posts, the subsidiary legislation pursuant to Section 4(1)(a) of the Federal Character Commission (Establishment, etc.) Act
The Applicant’s complaint in the present action is that the board of the 2nd Respondent has nine (9) positions available, which can go round the six (6) Geo-Political Zones, yet nobody is appointed from the states comprising the South-East Zones, while more than one person were appointed from some other Geopolitical Zones.
Issues for Determination
The Applicant has formulated the following issues:
Whether the appointment into the board of the 2nd Respondent, by Federal Government of Nigeria on 5 July 2016 which totally excluded the States in the South East Geopolitical Zone, is not discriminatory and a violation of the fundamental rights to freedom from discrimination of the Applicant and other Nigerians indigenous to states in the South East Zone, guaranteed by Section 42 of the 1999 Constitution of the Federal Republic of Nigeria (1999 Constitution)
Whether the said appointment does not violate the principle of democracy, social justice and Federal Character prescribed by Section 14(1) and (13) of the 1999 Constitution Whether the appointment does not also violate guiding principles and formulae for the distribution of posts, prescribed by the Federal Character Commission (Establishment, etc.) Act
According to the litigant, Section 46 of the Constitution empowers the Applicant to approach the Court for enforcement of fundamental right where the right has been, is being or is likely to be infringed by the Respondents. Section 3(e) and (d) of the Preamble to Fundamental Rights Enforcement Procedure Rules, 2009, prescribes that:
The overriding objectives of these Rules are as follows:
(d) The Court shall proactively pursue enhanced access to justice for all classes of litigants, especially the poor, the illiterate, the uninformed, the vulnerable, the incarcerated and the unrepresented
(e) The Court shall encourage and welcome public interest litigations in the human rights field and no human rights case may be dismissed or struck out for want of locus standi, in particular, human rights activists, advocates or groups as well as any non-governmental organisations, may institute human rights application on behalf of any potential applicant. In human rights litigation, the applicant may include any of the following:
(i) Anyone acting in his own interest;
(ii) Anyone acting on behalf of another person;
(iii) Anyone acting as a member of, or in the interest of a group or class of persons;
(iv) Anyone acting in the public interest, and
(v) Association acting in the interest of its members or other individuals or groups”
The Applicant has shown in the Affidavit in support that the right of the Applicant and other Nigerians indigenous to the states in the South-East Geopolitical Zone, comprising of Anambra, Enugu, Ebonyi, Imo and Abia States has been and is still being violated by the Respondents.
Section 42 of the Constitution guarantees freedom from discrimination for every citizen of Nigerian. Section 42 stipulates 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:-
(a) be subjected 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; or
(b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions.
(2) No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.”
4.4 The Affidavit in support of the Application establishes the ground of bringing this Application. Further, the Applicant has shown that he has been a social crusader, a human rights activist and has led many non-governmental organizations to protect and defend human and civil rights.
Evidence of Acts of Discrimination and Legal Violations
The Affidavit in support of the Fundamental Right’s Application shows that on5 July 2016 there were nine positions to fill in the Board of the 2nd Respondent and the Federal Government filled the vacancies in the following manner:
(1) Dr. Tajuddeen Umar (North East)
(2) Dr. MaikantiBaru (North East)
(3) Mr. Abba Kyari (North East)
(4) Mr. Mahmoud Isa-Dutse (North Central)
(5) Mallam Mohammed Lawal
(6) Mallam Yusuf Lawal
(7) Dr. Emmanuel IbeKachikwu (South-South)
(8) Dr. Thomas M.A John (South-South), and
(9) Dr. Pius O. Akinyelure (South-West)
4.6 The board has nine positions, which will ordinarily go round the five Geo-Political Zones, but the South East has no representation at all. While more than one person was appointed from other Geo-Political Zones like the South-South and the North-East, thereby according numerical advantage to those Geo-Political Zones.
4.7 The analysis above shows that the appointment discriminates between Nigerian of different states, ethnicity and geo political regions. This violates Section 42 of the Constitution which forbids administrative or executive actions of the government or application of any law in force in Nigeria which discriminate between Nigerians or accord privileges and benefits to any Nigerian, on account of ethnicity, state of origin, sex, etc. which is not accorded to citizens of Nigeria of other ethnicity, state of origin, sex, etc.
4.8 The appointment does not reflect the federal character of Nigeria, as prescribed by Section 14(1) and (13) of the 1999 Constitution, because the board of the 2nd Respondent constituted was dominated by people of from a few ethnic or other sectional groups while the South East is totally excluded.
4.9 The appointment also violates the guiding principles and formulae for the distribution of posts, prescribed by the Federal Character Commission (Establishment, etc.) Act

BURDEN OF PROOF

4.10 The burden of proof on the Applicant is to show that expressly or by implication, any of the Respondent’s administrative acts has subjected, is subjecting or will likely subject the Applicant and the group represented, by reason of their states of origin or Geopolitical Zone, to disabilities or restrictions to which citizens of Nigeria of other states of origin and Geopolitical regions are not made subject or that Nigerians of other states of origin and Geopolitical regions are accorded advantage or privilege which the Applicant and the group represented are not accorded.

4.11 It is respectfully submitted that the Applicant has discharged the burden of proof on him. He has shown that indeed that by excluding the South East from the board of the 2nd Respondent, while some other Geopolitical Zones have more than one representation, the 1st Respondent subjects citizens from the South East Geopolitical Zone to disability or disadvantage that citizens of other Geopolitical Zones are not subjected to. The appointment also accords privileges or undue advantages to Nigerians from the North East and South-South Zone, which is totally denied those from the South-East. This violates Section 42 of the Constitution.
4.12 Black’s Law Dictionary, 6th Edition defines “discrimination” in Constitutional Law as follows:
“The effect of a statute or established practice which confers particular privilege on a class arbitrarily selected from a large number of persons, all of whom stand in the same relation to the privilege granted and between whom and those not favoured, no reasonable distinction can be made. Unfair treatment or denial of privileges to persons because of their race, age, sex, nationality or religion.A failure to treat all persons equally where no reasonable distinction can be found between those favoured and not favoured.”
4.13 In Anzaku v Governor of Nasarawa State (2005) 5 NWLR, Part 919, at 448 to 485 the Court of Appeal set out the relevant consideration in the interpretation of Section 42 of the Constitution as follows:
“The sense of section 42 of the Constitution can be better appreciated when it is realized that it is part of what I often consider as, the 12 sacred rights available to every Nigerian citizen. It is called Fundamental Rights in sections 33-44 under Chapter IV of the Constitution. In considering the meaning, characteristics and application of section 42, I see the following elements in the provisions:-
(1) The provisions are rigid- the words “shall not” in subsection (1) and “shall” in subsection (2) bear this out.
(2) The words and language are not only clear and precise but the prohibition which they convey are absolute in their context.
(3) It is a prohibition against discrimination on grounds of the community, ethnic group, place of origin, sex, religion or political opinion to which a citizen belongs. They must not form an obstacle to a citizen of Nigeria exercising his rights.
(4) So protective are the words, for, not only in the express application of any law in force in Nigeria, but also in the practical application thereof, would the provision permit a citizen to be subjected to discrimination.
Also, it is rather important to note, that such discrimination is not to be practiced, with respect to express and also the practical application of “Any Executive or Administrative Action of Government” (italics mine for emphasis and attention)
(5) The provision not only curbs the excesses of any law or legal system but also of any executive or the administrative action of the government.
(6) “Any law” is so encompassing an expression, not limiting the type of law. It applies to any system of law in Nigeria, whether statute law, customary law, Islamic law or common law, applicable in Nigeria which subjects a citizen to discrimination, or disability, or restriction on account of any of the grounds specified in the section. This is important and I will return to it later.
(7) Particularly of importance for this matter, is section 42(1) (a) which restricts both executive and administrative action of government which exposes a citizen of Nigeria to disabilities or restrictions which other Nigerians are not made subject to.
The Nigerian Democratic Constitution in its language exhibits how much value it places on the worth of each and every one of the citizens. It does not and will not condone, nor indeed tolerate class or ethnic etc discrimination whether by any law of the land or any action on the part of any executive or administrative authority or person or the State in sharing advantages, and even disadvantages, based on sex, race, place of origin, ethnic, religions or political affiliation.
It must be pointed out that as the rule of law under the Constitution takes care of situations, it is recognized that certain differences in treatment of persons do occur, but I believe the law will insist that such be not capricious or unreasonable.
4.14 The Court of Appeal referred to Professor Nwabuezein Anzaku’s case as follows:
“It is helpful to refer to what a renowned constitutional lawyer of our time, Professor B.O Nwabueze, stated concerning this aspect of the constitutional provisions in his book.
The learned author said:-
‘Fairness and justice demands that people who are similarly circumstanced should be treated equally by the State. Yet, there is no discrimination where special restrictions imposed upon a class, or special advantages accorded to it are reasonably designed to reflect real and substantial differences between it and other classes or groups. It is indeed unfair and unjust to treat unequal things equally”
“The inescapable truth and logic of this proposition is indeed recognized by the courts in the United States in interpreting the provision of the Constitution guaranteeing to all persons ‘the equal protection of the laws’. In succinct but pungent words, Mr. Justice Frankfurter has said that ‘the Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same’, it does not intend to create ‘a fictitious equality where there is a real difference’. Protection is not unequal merely because real and substantial differences between classes or groups are recognized by law for purposes of special protection or treatment reasonably related to such differences. Provided therefore that such special protection or treatment is reasonable, and not arbitrary, oppressive or capricious, there is no denial of equal protection. A class e.g. a religious or political group, may be isolated for special treatment if it constitutes a danger to public order, public security, public health or public morality, or if it is so vulnerable by reason of its peculiar circumstances as to require special protection” (Italics supplied. See the Presidential Constitution of Nigeria by B.O Nwabueze, at pages 453-454)’.
I am unable to say that the policy complained of and its implementation are not oppressive and are reasonably designed to reflect real and substantial differences between the appellants and other employees of Nasarawa government as its effect is manifest from the affidavit evidence of the appellants and, no one can say that these staff and employees of the Commission constitute any danger to public order, security or whatever”
4.15 It is respectfully submitted that, the case of Anzaku recognized that certain differences in treatment of persons will occur, but the differences must not be unreasonable.
4.16 It is submitted that a situation where a Geopolitical Zone is considered eligible to more than one slot in appointment into the Board of the 2nd Respondent while another Geopolitical zone is excluded completely from the Board is unreasonable and repugnant to natural justice, equity and fairness.
4.19 The Honourable Court is respectfully invited to resolve the issues for determination in favour of the Applicant.
5.0 CONCLUSION
5.1 The Honourable Court is respectfully invited to carefully consider the evidence before it and hold that the Applicant is entitled to the following reliefs.
(1) A Declaration that the distribution of appointment into the Board of the 2nd Respondent, by the Federal Government of Nigeria, represented in this Suit by the 1st Respondent, particularly the distribution/appointment made on 5 July 2016, is discriminatory against the Applicant and other Nigerians indigenous to the states in the South-East Geopolitical Zone, comprising of Anambra, Enugu, Ebonyi, Imo and Abia States therefore the distribution/appointment violates their fundamental right to freedom from discrimination, guaranteed by Section 42 of the 1999 Constitution of the Federal Republic of Nigeria (1999 Constitution);
(2) A Declaration that the distribution of appointment into the Board of the 2nd Respondent, by the Federal Government of Nigeria, represented in this Suit by the 1st Respondent, particularly the distribution/appointment made on 5 July 2016, violates the principle of democracy, social justice and Federal Character prescribed by Section 14(1) and (13) of the 1999 Constitution;
(3) A Declaration that the said distribution of appointments also violates the guiding principles and formulae for the distribution of posts, prescribed by Part 1, Sections 1 and 4 of Guiding principles and formulae for the distribution of all cadres of posts, the subsidiary legislation pursuant to Section 4(1)(a) of the Federal Character Commission (Establishment, etc.) Act
(4) AN ORDER OF PERPETUAL INJUNCTION restraining the Federal Government of Nigeria from further violation of the Constitution and other laws of the Federal Republic of Nigeria, including the Federal Character Commission (Establishment, etc.) Act in appointment of members of the Board of the 2nd Respondent.
(5) AN ORDER OF PERPETUAL INJUNCTION directing the Federal Government of Nigeria, whether by itself, its agents, servants, privies to henceforth apply the Constitutional principles of democracy, social justice and all laws relating to Federal Character, including the Federal Character Commission (Establishment, etc.) Act in appointing members of the Board of the 2nd Respondent.