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SERAP v. Nigeria, Judgment, ECW/CCJ/APP/12/07; ECW/CCJ/JUD/07/10 (ECOWAS, Nov. 30, 2010)
local remedies.
12. PRELIMINARY ISSUES
On 27th October 2009, the��court issued a ruling in an application for preliminary objection raised
by the defence. These issues about the court's jurisdiction in this matter as well as the exhaustion of
local remedies were decided in that ruling. It is thus inappropriate for Counsel to raise the same
issues again. The principle of law is clear that when a court has decided on some issues in the case,
the decision creates issue estoppel as between the parties and/or their privies in the present and any
subsequent proceedings in which same issue’s is/are raised. Besides, the decision of this court is
final and can only be altered through a revision if the correct procedure is followed. In view of the
foregoing, the court cannot reopen these two issues about its jurisdiction and exhaustion of local
remedies.
ANALYSIS OF THE MAIN ISSUES
13. The key issue is whether, having regard to the record before the court, the applicant has
established a case against the defendants or any of them. The other issue about whether the second
defendant is answerable for the education units of the states who they regard as the proper parties
to this case will be addressed first. This is because if the second defendant is a wrong party sued,
there will be no point discussing the main issue with reference to them.
14. Among other duties they are mandated by law to perform, the second defendant stated that they
‘receive block grant from the Federal Government and allocate to the States and Local
Governments and other relevant agencies implementing the Universal Basic Education ……
provided that the Commission shall not disburse such grant until it is satisfied that the earlier
disbursements have been applied in accordance with the provisions of the Act’.
15. It is clear from even a cursory reading of this provision in the Act which the second defendant
themselves relied upon that they have a responsibility to ensure that the funds they disburse to the
.States, inter alia, are utilised for the purposes for which they were disbursed. Thus the second
defendant cannot be heard to say that if funds given to the States are not properly accounted for
they are not responsible, albeit vicariously. It is clear from the use of the mandatory expression
‘shall not disburse’ that the Act has placed the onus on them to be satisfied that the funds are
property utilised, hence the power given to them to refuse further disbursements. The language of
the statute is so clear and unambiguous requiring no interpretation. Thus the second defendant is a
proper party in this action, despite the fact that the ten States mentioned in the Report might also
have been joined to this action.
16. Turning next to the main issue, the applicant relies largely on the ICPC Report which they
annexed to their papers filed in this ease. The ICPC report uncovered corrupt practices in the
management of funds allocated for education. The applicant further contends that the "allegations
of high level corruption have contributed to series of serious and massive violations of the right to
education, including lack of access to quality primary education in Nigeria".
17. The defendants are alleged to have contributed to the denial of education to a lot of Nigerians
by failure to seriously address all allegations of corruption at the highest levels of government and
the levels of impunity that facilitate corruption in Nigeria. This situation has contributed to the
denial of the right of the peoples to freely dispose of their natural wealth and resource, which is the
backbone to the enjoyment of the right to education and other economic and social rights.
18. To begin with, the ICPC report is the product of investigations into the affairs of the basic
education sector. And in law such investigative report is not conclusive of the facts stated therein,
nonetheless they provide prima facie evidence of the facts investigated. If the report finds that
there is evidence of corruption. It behoves the appropriate authority to act further on it, and secure
a judicial verdict. It is only then that a person investigated can be said to be guilty of the
allegations or findings of corruption contained in the report. And the fact that the report is not
conclusive of the facts stated therein explains the use of such words and expressions as
http://www.worldcourts.com/ecowasccj/eng/decisions/2010.11.30_SERAP_v_Nigeria.htm
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