iv. An order directing the defendants to arrest and prosecute the public officers who diverted the sum of 3.5
billion naira from the UBE fund forthwith.
v. An order compelling the government of Nigeria to fully recognize primary school teachers' trade union
freedoms, and to solicit the views of teachers throughout the process of educational planning and policy
making.
vi. An order compelling the government of Nigeria to assess progress in the realization of the right
education with particular emphasis on the Universal Basic Education; appraise the obstacles, including,
corruption, impeding access of Nigerian children to school; review the interpretation and application of
human rights obligations throughout the education process.
The defence case
10. For their part, the defendants totally rejected the claims by the applicant. The defendants filed separate
statements wherein they identified some issues as being material to a determination of this matter. The first
defendant formulated three issues relating to the following: 1. The court's jurisdiction over this matter. 2.
Failure on the part of the applicant to exhaust local remedies before coming to this court. 3. Failure by the
applicant to establish their claims.
11. The second defendant set out a number of issues, namely; 1. Whether the second defendant is the
competent body to answer the allegations made by the applicant. 2. Whether the proper parties are before
the court. 3. Whether the applicant has established their case. 4. Whether the applicant has satisfied the
condition precedent to bringing an action before this court that is exhaustion of 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 re-open
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 staled 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 properly 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 case. 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".
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