By Johnmary Chukwukasi Jideobi, Esq.
INTRODUCTION:
On the 27th day of July, 2021, the Federal High Court, Abuja, rendered the ensuing Ruling:
“An interim Order of this Honourable Court compelling the Respondents, particularly the 1st and 2nd Respondent, to issue in favour of the Applicants, Promissory Notes in line with the recommendation of the 2nd Respondent and to deposit same with the Registrar of this Court within 7 (seven) days of being served with the Interim Order pending the determination of the Motion on Notice.”
In the above application, the 1st Respondent is the Federal Minister of Finance while the 2nd Respondent is the Director-General Debt Management Office and the 3rd Respondent is the Attorney-General of the Federation.
On the 2nd day of September, 2021, the media was awash with reports of the Press Statement titled: “Reps Minority Caucus backs governors, calls for probe into $418m judgement debts”, emanating from one Hon. NDUDI ELUMELU, the Minority Leader in the Federal House of Representatives wherein he vehemently opposed the payment of $418m judgment debts by the Federal Government in the following terms:
“As lawmakers, our Caucus insists that the approval to funnel out $418 million out of the national treasure under such hazy consent judgment and in the absence of the forensic audit, smacks of an endorsement of corruption. Our Caucus urges President Buhari not to allow himself to be misled or entangled in this nebulous enterprise but to listen to the state governors and allow for the audit, particularly on the particulars of claims by creditors as well as the circumstances leading to the suspicious consent judgement. The Minority Caucus demands that the Attorney General and Minister of Justice should avail himself of the audit to bring the processes and circumstances surrounding the judgment debt to public glare. The
Caucus maintains that the open audit should unravel those behind the consent judgment, the propriety of such measures as well as why the objection by the governors was ignored. This is more so as the consent judgement predicated the payment of the doubtful $418 million on deductions from allocations to states and local governments, a development that will put unwarranted burden on the already overstrained tiers of government and worsen the economic and infrastructural deficit in the country,”
On the same 2nd day of September, 2021, the Nigerian cyberspace was awash with headlines like: “Paris Club refund: Governors kick as finance minister approves disputed payment to consultants.”
THE PURPOSE OF THIS ARTICLE:
This write up is focused on taking the likes of Hon. NDUDI ELUMELU, Chief Femi Falana, SAN (and the Nigeria Governors’ Forum he represents) and the Nigerian public (who may not have understood what the issues about the $418m judgement debts are) through the historical background to the Consent Judgment culminating in why the Director-General of the Debt Management Office [DMO] should be in jail and why the likes of Hon. NDUDI ELUMELU must have spoken from a position of ignorance and or outright mischief to stir anarchy.
FACTUAL BACKGROUND:
On the 15th day of June, 2014, the Nigeria Governors’ Forum [NGF] wrote a letter and addressed to the Chief Executive Officer of PANIC ALERT SECURITY SYSTEMS [PASS] titled “LETTER OF APPOINTMENT AS CONSULTANT TO THE FORUM ON COURT JUDGMENT PREMISED BY ILLEGAL DEDUCTION BY THE FEDERAL GOVERNMENT FROM LOCAL GOVERNMENTS”. In the said letter of appointment, the scope of work as a consultant was spelt out for PASS in these clear terms:
“We hereby:
Appoint you as Consultant to the Forum on the underlying court judgment premised upon illegal deductions by the Federal Government from all Local Governments (see attached judgment) Admonish you to analyse the judgment and all pertinent documents, prepare a report for the Forum, and be ready for invitation by the Forum for a formal presentation to all Governors of your report: and Strongly advise that your investigations and reports shall protect the interest of all parties involved in the Court judgment so as not to run afoul or breaking any law on any decision they decide to take on this matter. The judgment the NGF appointed PASS to analyse is that flowing from SUIT NO: FHC/ABJ/CS/130/13 as per the Judgment delivered by the Honourable Justice A.F.A. Ademola wherein all the Local Governments in Nigeria took the Federal Government to Court claiming multiple monetary reliefs that were granted by that Court.
After delivering on the mandate of his letter of appointment, the Nigeria Governors’ Forum failed to remunerate PASS whereupon it wrote a LETTER OF DEMAND addressed to the Chairman of the NGF dated the 5th day of September, 2017. In the said DEMAND LETTER, PASS specifically demanded for the “payment of Seven Million (7, 000, 000:00) U.S. Dollars and Forty-Seven Million, Eight Hundred and Twenty-One Thousand and Ninety-Two (47, 821, 920: 00) U.S. Dollars within Fourteen (14) days of receipt of this letter.”
THE BEGINNING OF LITIGATION:
For failing to remunerate PASS despite its demand letter earlier referred to, PASS, on the 5th day of February, 2018, took out a Writ of Summons in Suit No: FHC/ABJ/CS/123/2018, claiming, inter alia, against Nigeria Governors’ Forum as follows:
A Declaration that pursuant to the letter of appointment dated 15th June, 2014, Plaintiff’s acceptance letter dated 7th October, 2014, and other verbal discussions between the Plaintiff and the 1st Defendant, the Plaintiff is contractually entitled to the payment of the sum of $USD47, 821, 9200.00 (Forty Seven Million, Eight Hundred and Twenty One Thousand, Nine Hundred and Twenty Dollars) only being 10% commission of the sum of $478, 211, 925.89 (Forty Seven Million, Eight Hundred and Eleven Thousand, Nine Hundred and Twenty-Five Dollars, Eight Nine Cents) wrongly and erroneously awarded to contractors (who were not parties to SUIT NO: FHC/ABJ/CS/130/13, Between: LINAS INTL LTD & 235 ORS –V- THE FEDERAL GOVERNMENT OF NIGERIA & 3 ORS) but recovered by the Plaintiff at the instructions of the 1st After being served with the Writ of Summons filed against it by PASS, instead of squaring up with the claims made against it, the NGF opted for Out-of-Court Settlement with PASS. In consequence, on the 29th day of March, 2019, the Nigeria Governors’ Forum entered into TERMS OF SETTLEMENT [TS] with PASS. The Terms of Settlement were signed by the Director-General of NGF, A.B. OKAURU, Esq. and its Counsel OMEOGA CHUKWU, Esq. and counter-signed by DR. GEORGE UBOH signed for the Plaintiffs with CHARLES UDE, Esq. as the Plaintiffs’ Counsel. In the Terms of Settlement, among others, parties agreed as follows:
“That in full settlement of this suit, the 1st Defendant has written to the Attorney-General of the Federation confirming the following:
iii) Parties agreed to recommend the Plaintiffs to the Office of Attorney General for verification and settlement”
THE CONSENT JUDGMENT:
To concretise their Terms of Settlement which they voluntarily executed on the 29th day of March, 2019, parties to the TS filed their Terms of Settlement at the Registry of the Federal High Court, Abuja on the 5th day of April, 2019 for adoption by the Court as a Consent Judgment. On the 8th day of April, 2019, the Federal High Court, Abuja, presided over by the Honourable Justice J.T. Tsoho (the current Chief Judge of the FHC) entered a Consent Judgment on the application of the parties through their respective Lawyers in the open Court in the following terms:
“AND AFTER HEARING Charles Ude, Esq. of Counsel for the Plaintiffs urging this Court to enter the Terms of Settlement dated 29th March, 2019 but filed on 5th April, 2019 as Consent Judgment.
AND Omeoga Chukwu, Esq. of Counsel for the 1st Defendant not to objecting but urging this Honourable Court to adopt the Terms of Settlement as the Judgment of this Court in this case.
IT IS HEREBY ORDERED:
That the Terms of Settlement dated the 29th day of March, 2019 but filed on the 5th day of April, 2019 duly executed on behalf of the Plaintiffs and the 1st Defendant in this Suit is hereby entered as a Consent Judgment in this Suit on the following terms:
iii. Parties agreed to recommend the Plaintiffs to the Office of Attorney General for verification and settlement.”
VERIFICATION AND RECOMMENDATION BY THE ATTORNEY-GENERAL:
Armed with the Consent Judgment, PASS, through its Lawyers, approached the Honourable Attorney-General of the Federation [AGF henceforth] seeking his consideration and approval of the payment of the sum of $USD47, 821, 9200.00 (Forty Seven Million, Eight Hundred and Twenty One Thousand, Nine Hundred and Twenty Dollars). Mention must be made that earlier, the NGF itself wrote to the AGF on the 28th day of November, 2018 wherein it “attached a detailed matrix showing the individual claims of the Consultants and lawyers” In the said matrix prepared by the NGF itself, it listed “George Uboh/Panic Alert Security System” as number 12, affirmed it’s claim of $47, 821, 920.00 and further affirmed that it [NGF] requested out of court settlement and under the “TYPE OF SERVICE RENDERED”, it indicated “Consultancy” for PASS.
In verification of Panic Alert/Dr. Uboh’s claims, the AGF on the 29th day of December, 2019, wrote to the Director-General of the Nigeria Governors’ Forum in these terms:
“I seek to request the confirmation of your letter and its annexure dated the 28th day of November, 2018 in respect of the above subject matter. (Copies attached herewith)
Further to the above, please confirm the amount, sum payable and source of fund for the payment in respect of the subject matter under reference, particularly regarding George Uboh/Panic Alert Security Systems Claim. (Please see paragraph 12 of your detailed matrix showing individual claim of the Consultants/Lawyers).”
Interestingly, on the 9th January, 2020, the Governors’ Forum responded to the Honourable Attorney-General’s inquiry in this clear and lucid language, among others:
“In seeking a resolution of the aforementioned case, the parties reached an out of court settlement culminating in a Consent Judgment dated 8th of April, 2019 where it was agreed that the NGF would recommend PASS to the Office of the Attorney General of the Federation for settlement.
The NGF appreciates the resolve of the Federal Government to settle all outstanding and lingering claims regarding the Paris Club and does not object to Panic Alert Security Systems/George Uboh being settled. As we look forward to a permanent resolution of this situation, accept the assurances of our highest consideration.”
The NGF’s letter was signed by its Director-General, ASISHANA B. OKAURU, Esq.
Armed with this confirmation by the NGF and its registration of “NO OBJECTION” to the settlement of PASS, the AGF, on the 11th day of May, 2021 wrote to the Honourable Minister of Finance, Budget & National Planning informing the Honourable Minister thusly:
“In view of the foregoing, the request for payment of the consultancy services under reference, having been cleared by the Office of the NGF is forwarded for your consideration and further action, please.”
However, in a strange twist, the Director-General of Debt Management Office, MS PATIENCE ONIHA, instead of issuing the Promissory Notes as directed by the President to offset this indebtedness, turned around to ask the Judgment Creditors to get the approval of the Governors’ Forum for their payment. This necessitated the filing of an action for Mandamus against her, resulting in the Order of the Court which we quoted at the cradle of this engagement. It is from the foregoing background that all the issues connected to or flowing from the $418M judgment debts must be seen and understood.
THE IMPORT AND IMPLICATIONS OF A CONSENT JUDGMENT:
We begin from the very beginning by re-stating the concept of a Consent Judgment. On the import of a Consent Judgment, the Court, Per Nimpar, J.C.A, effulgently wrote in THE HONDA PLACE LTD VS. GLOBE MOTORS HOLDINGS (2015) LPELR-24589(CA) thusly:
“By its very nature a consent judgment is a product of unequivocal agreement by the parties which they naturally present to Court as basis of settlement of issues between them translated into a consent judgment to end the dispute between them; see ADEDEJI v. OLOSO (2007) 5 NWLR (Pt. 1026) 133. The Supreme Court in the case of STAR PAPER MILL LTD & ANOR v. BASHIRU ADETUNJI & ORS (2009) 13 NWLR (Pt. 1159) 647 on the efficacy of a consent judgment said thus: “It must be pointed out that it is one of the cardinal principles of our judicial system to allow parties to amicably resolve the disputes between them. By doing so, the otherwise hostile relationship between the parties would be amicably resolved and cemented. It is this amicable resolution of disputes by the parties that is called a settlement. When the terms of such settlements are reduced into writing, it is now called “terms of settlement”. When the terms of settlement are filed they are called, and made the judgment of that Court. It is then crystallized into ‘consent judgment’. When consent judgment is given, none of the parties has the right of appeal except with leave of Court. Hence consent judgment, is a contract between the parties whereby rights are created between them in substitution for order of consideration of the abandonment of the claim or claims pending before the Court. This is intended to put a stop to litigation between the parties just as such as a judgment which results from the decision of the Court.”
More importantly, a Consent Judgment is as effective as every other judgment of the Court arrived at after a full trial on the merit. Vindicating this legal postulation, the Apex Court, in Race Auto Supply Company Limited &Ors V. Alhaja Faosat Akib (2006) 6 SCNJ 98 23 emphasised more strongly the finality of consent judgment in this telling language:
“In this regard it is necessary to point out that a consent judgment or order is as effective in law in respect of all the matters which are therein settled as any other judgment or order arrived at after the matters are fully fought out to the end in a full trial. As Lord Herschel, L.C. explained in the case of In Re: South American and Mexican Company, Exparte Bank of England (1895) 1 Ch. 37 at 50:
“The truth is, a judgment by consent is intended to put a stop to litigation between the parties just as much as is a judgment which results from the decision of the court after the matter has been fought out to the end.
Above all, as at today (2nd September, 2021), no appeal has been lodged by the Nigeria Governors’ Forum against the sacred Judgment of the Court entered on the 8th day of April, 2019 by Consent of the parties which the President, the Honourable Attorney-General of the Federation and the Minister of Finance are merely implementing.
ALL AUTHORITIES AND PERSONS ARE BOUND BY THE JUDGMENT OF THE COURT AND ARE CONSTITUTIONALLY UNDER OBLIGATION TO ENFORCE SAME:
There is no person or functionary of government who has the discretion to disobey the Judgment of a Court of competent jurisdiction. This is what our forebears decreed in Section 287(3) of the amended 1999 Constitution of the Federal Republic [CFRN] of Nigeria says:
“The decisions of the Federal High Court, the National Industrial Court, a High Court and of all other Courts established by this Constitution shall be enforced in any part of the Federation by all authorities and persons, and by other Courts of law with subordinate jurisdiction to that of the Federal High Court, the National Industrial Court, a High Court and those other Courts, respectively”
It is against the foregoing background that we consider it an abomination of the rankest specie that the Director-General of DMO, MS PATIENCE ONIHA has refused, neglected and or failed to carry out a positive Order of the Court issued on the 27th day of July, 2021 mandating her to issue Promissory Note in favour of PASS, in liquidation of the judgment debt, which the President and Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria (through the appropriate channels) had earlier directed her to do. This is disobedience to an Order of Court and carries grave consequences, one of which is precipitation of anarchy which the Supreme Court captured admirably in the case of Hart v. Hart (1991) 21 N.S.C.C. (Pt. 1) 184 at 199, thusly;
“I would like to state that obedience to Orders of Courts is fundamental to the good order, peace and stability of the Nigerian nation. The ugly alternative is a painful recrudescence of triumph of brute force or anarchy, a resort to our old system of settlement by means of bow and arrows, machetes and guns or, now, even more sophisticated weapons of war. Disobedience to an order of Court should, therefore, be seen as an offence directed not against the personality of the Judge who made the Order, but as a calculated act of subversion of peace, law, and order in Nigeria society. Obedience to every Order of Court is therefore a duty which every citizen who believes in peace and stability of the Nigerian State owes to the nation. To
allow Court orders to be disobeyed would be to tread the road toward anarchy. If orders of the Court can be treated with disrespect, the whole administration of justice is brought into scorn…If the remedies that the Court grants to correct wrongs can be ignored, then, there will be nothing left for each person but to take the law into his own hands. Loss of respect for the Court will quickly result in the destruction of our society”
The President, the Honourable Attorney-General of the Federation and the Honourable Minister of Finance were/are therefore in the warm embrace of the law in ensuring the enforcement of the Consent Judgment of the Court, delivered on the 8th day of April, 2019, and against which there is no valid pending appeal. Having not delivered the Promissory Note to the Registrar of the Court within the seven days period mandated by the Order of the Court, MS PATIENCE ONIHA risks jail terms if the aggrieved Judgment Creditors opt to commence criminal proceedings against her in that regard. She equally risks the loss of her job. This is because, like nature, it is an elementary law that the law abhours vacuum. If jailed for contempt of court (which is not a distant possibility), her chair as the Director-General of DMO becomes vacant and must be filled to avoid vacuum. At this stage, the choice is hers!
HON. NDUDI ELUMELU’S PRESS STATEMENT: A MISGUIDED OUTBURST
It is completely bizarre that Ndudi Elumelu could have issued the kind of press statement he issued. The astonishment of this writer stems from three considerations. One, Honourable Ndudi Elumelu has been a Federal Lawmaker for donkey years and for a Legislator of his standing, he ought to have acquainted himself with Section 287(3) of the amended 1999 CFRN. More importantly, as a Federal Lawmaker, he swore to uphold the Constitution of Federal Republic of Nigeria including Section 287(3) thereof. By his pedigree, he ought to have known that no other Government agency, institution or authority has the vires either to “review” or “probe” the sacred Judgment of the Court unless and apart from an invitation to a higher Court to examine the
decision arrived at by the lower Court by way of an appeal, an option the Governors’ Forum has (in its wisdom) refused to exercise since the year 2019 when the judgment in contention was rendered. Hon. Elumelu’s expletives and misguided outbursts is an outright invitation to abuse, desecrate and possibly bury Section 287(3) of the amended 1999 CFRN. Is that what a Parliamentarian stands for or should stand for? Does he have what it takes to achieve such ignoble aim? Obviously not. Elumule needs to be lectured on ‘how’ a true Parliamentarian (if he considers himself one) should treat the Constitution of the land as perspicaciously taught by the Nigerian Supreme Court in Inakoju vs. Adeleke (2007) 4 NWLR (PT1025) 423 S.C. We very respectfully invite the Late Hon. Justice Tobi, J.S.C. to speak and Hon. Elumelu should listen to this:
The Legislature is the custodian of a country’s Constitution in the same way that the Executive is the custodian of the policy of Government and its execution, and also in the same way that the Judiciary is the custodian of the construction or interpretation of the Constitution. One major role of a custodian is to keep under lock and key the property under him so that it is not desecrated or abused. The Legislature is expected to pet the provisions of the Constitution like the way the mother pets her day-old baby. The Legislature is expected to abide by the provisions of the Constitution like the way the clergyman abides by the Bible and the Iman abides by the Koran.
And so, when the Legislature, the custodian, is responsible for the desecration and abuse of the provisions of the Constitution in terms of patent violation and breach, society and its people are the victims and the sufferers
What emerges from the womb of the foregoing is that what rather requires an urgent “probe” is how a Federal Parliamentarian of many years in Elumelu’s mold could have exhibited such crass and disgraceful ignorance of the fundamental workings of the Nigerian Constitution by which he is expected to abide “like the way the clergyman abides by the Bible and the Iman abides by the Koran.”. Pity is the word!
Secondly, Honourable Ndudi Elumelu is a devout Catholic. Most times, this writer worships with him at Holy Trinity Maitama, Abuja where he attends morning Masses. It is against Catholic teachings and conscience to deny a labourer the fruit of his labours. It is in 1 Timothy 5:18 clearly written that “The laborer is worthy of his reward.” The campaign of Hon. Ndudi Elumelu is that a labourer should be denied his wages. This is incompatible with Catholic teaching.
Thirdly, Hon. Ndudi Elumelu made a case for fight against corruption. Hon. Elumelu comes from Delta State where a former Governor milked his own state’s treasury dry and even as at today, the Federal Government is still in the effort of repatriating some of the humongous sums looted from Elumelu’s Delta State. There is no record suggesting that Hon. Ndudi Elumelu (as an anti-corruption crusader) has issued a press statement condemning the former Governor for the legendary looting or urging his own State Attorney-General to initiate his criminal prosecution. Charity, they say, starts from home. It was in circumstances similar to that which we are dealing with in this article that Our Master and Lord Jesus Christ spoke to the people of his time thusly: “You hypocrite, first take the plank out of your own eye, and then you will see clearly to remove the speck from your brother’s eye.” [Matthew 7: 5].
CONCLUSION:
We are a nation of laws. Our laws can only keep us if we keep our laws. Our democracy can only preserve us if we preserve our democracy. Just like the Nigerian Court of Appeal, Per Denton-West, J.C.A., in the memorable case of Balonwu v. Obi (2007) 5 NWLR (Pt. 1028) 488 at 538 aptly noted,
“Without a strict adherence to the rule of law, our nascent democracy and indeed our Constitution will only be worth the paper on which it is written. What makes a great country is adherence to the rule of law. Even in hell, there is order and discipline.”
Nothing could be truer! I choose to stop here.