Statutory Corporations (surcharge) Law

STATUTORY CORPORATIONS (SURCHARGE) LAW

1. Citation. This Law may be cited as the Statutory Corporations (Surcharge) Law.

2. Interpretation, In this Law— “auditor” means the Auditor-General for the Delta State of Nigeria or any other person duly authorised by the Auditor-General; “Corporation” means any Corporation specified in the First Schedule hereto; “functionary” includes Chairman, Executive Director, Director and other members or employees of a Corporation, and shall also include any civil servant seconded to a Corporation; “immovable property” includes any right, title, or interest in any immovable property.

3. Powers and duties of auditor. (1) The auditor shall have the following powers— (a) to audit— (i) the accounts of every Statutory Corporation; (ii) the accounts of any Committee appointed by any such Corporation; (iii) any other accounts relating to projects launched by any such Corporation. (b) to disallow any item of account which is contrary to law or is unsupported by proper records or accounts, or which he considers unreasonable; (c) to surcharge the amount of any expenditure disallowed upon the functionary responsible for incurring or authorising the expenditure; (d) to surcharge any amount which has not been duly brought into account upon the functionary by whom that sum ought to have been brought into account; (e) to surcharge the amount of any loss or deficiency upon any functionary by whose negligence or misconduct the loss or deficiency had been incurred; (f) to certify the amount due from any functionary upon whom he has made a surcharge; (g) to certify at the conclusion of the audit, his allowance of the accounts subject to any disallowances or surcharges he may have made: Provided that no functionary shall be surcharged unless he has been given at least fifteen days’ notice by the auditor to show cause why he should not be surcharged. (2) For the avoidance of doubt, it is hereby declared that the provisions of this Law with respect to the powers of the auditor shall apply with effect from the 9th day of August, 1963. (3) A notice shall be deemed to be given in compliance with the proviso to subsection (1) of this section on the day it is sent by registered post to the last known address of the functionary

4. - (1) Auditor to call for books, deeds, etc.—The auditor shall be entitled to require from any functionary of a Corporation such books, deeds, contracts, accounts, vouchers, receipts, and other documents and such information and explanations, as may be necessary in the performance of his duties. (2) Production of and declaration as to documents —The auditor may by writing under his hand require the production before him of all books, contracts, accounts, vouchers, receipts and other documents which he may deem necessary for the purpose of the audit, and may require any person holding or accountable for any such document to appear before him at the audit or any adjournment thereof, and may require any such person to make and sign a declaration as to the correctness of the document. (3) Penalty— Any functionary— (a) who fails, refuses or neglects to produce any books, deeds, contracts, accounts, vouchers, receipts or other documents as may be required by the auditor; (b) who fails, refuses or neglects to give such information and explanations as may be required by the auditor; (c) who willfully destroys, any books, deeds, contracts, accounts, vouchers, receipts or other documents as may be required by the auditor, shall be guilty of an offence and shall be liable on conviction to a fine of two thousand naira or to imprisonment for one year or to both such fine and imprisonment.

5. Audit of accounts of functionaries. Where a functionary of a Corporation receives any money or property on behalf of the Corporation, or receives any money or property for which he ought to account to the Corporation, the accounts of the functionary shall be audited by the auditor, with the same powers, incidents and consequences as in the case of the accounts of the Corporation.

6. Auditor may make observations and recommendations. The auditor shall include in or annex to any certificate given by him with respect to the account audited by him such observations and recommendations (if any) as he thinks necessary or expedient to make with respect to the accounts of any matter arising therefrom or in connection therewith.

7. Appeal. (1) Any person who is aggrieved by the decision of the auditor may within fifteen days of the said decision appeal to the High Court of Delta State. (2) A person desiring to appeal to the High Court against the decision of the auditor shall commence his appeal by filing in court a notice of appeal in the form set forth in the Second Schedule to this Law. (3) The High Court may vary or set aside the decision of the auditor if it is satisfied— (a) that the functionary acted in the best interests of the Corporation in respect of the subject matter of the surcharge; or (b) that the amount surcharged is excessive. (4) The decision of the High Court shall be final.

8. Payment of sums certified to be due. Every sum certified by the auditor to be due from any functionary shall forthwith become payable by that functionary to the accountant or cashier of the Corporation.

9. Recovery of sums due. (1) Any sum which is certified by the auditor to be due from a functionary to a Corporation following an audit shall be deemed to be a civil debt, and shall be recoverable in the manner hereinafter stated. (2) a. A Corporation may register a certificate signed by the auditor giving the name and address of the functionary concerned and the sum of money due, in the High Court of the Delta State of Nigeria, in the same manner as judgment obtained in another State may be registered. b. A Corporation shall annex to a certificate filed by it a list of the known assets of the functionary. c. The certificate of the auditor shall be deemed to be, and shall have the effect of, a judgment of a court of competent jurisdiction unless the decision of the auditor has been varied or set aside under section 7 (3). d. Upon the filing of the certificate hereinbefore referred to, the assets enumerated in the list annexed to the certificate shall be deemed to have been attached for sale as if same had been attached under the Sheriffs and Civil Process Law, and the sale thereof may proceed in accordance with the provisions of the said Law and the Judgments (Enforcement) Rules, provided that the assets shall not be sold until any pending appeal has been determined.

10. Transfers of immovable property after 17th January, 1966, null and void. (1) All transfers or other dispositions of any immovable property made by any functionary against whom the auditor has exercised the powers vested in him by virtue of the provisions of this Law shall be deemed to be null and void unless such transfer or disposition is evidenced by a deed stamped and registered before the 17th of January, 1966. (2) All transfers or other disposition of chattels made by any functionary shall be deemed to be null and void unless— (a) such transfer or dispositions took place before 17th January, 1966; or (b) the functionary is not indebted to any corporation.

11. Property irregularly acquired to be sold. (1) Any property in respect of which the auditor has disallowed expenditure may be sold by the Corporation and the net proceeds after defraying the cost of sale shall be credited to the Corporation towards the liquidation of the surcharge. (2) For the purpose of this section, a bailiff may seize any such property, hereinbefore referred to, in the custody or possession of a person surcharged, or of any other person, and hand over same to the Corporation. Schedule 1 STATUTORY CORPORATIONS (SURCHARGE) LAW [Section 2.] Corporations [Amended by No. 29 of 1969.] Delta State of Nigeria Development Corporation. Delta State of Nigeria Housing Corporation. Delta State of Nigeria Marketing Board. Delta State of Nigeria Agricultural Credit Corporation. Delta State of Nigeria Finance Corporation. Delta Catering Board. Delta Sports Council. Pilgrims Welfare Council. Delta State of Nigeria Water Board. Schedule 2 STATUTORY CORPORATIONS (SURCHARGE) LAW FORMS [Section 7 (2)] Notice of Appeal BETWEEN: ............................................................................................ Appellant AND ................................................................................................................ Respondent TAKE NOTICE that I, Mr/Mrs/Miss....................................................................... being dissatisfied with the decision of the Auditor-General, Delta State of Nigeria, contained in Surcharge No..................................................................... dated ................................. do hereby appeal to the High Court on the grounds set forth hereunder -- Grounds of Appeal -- (1) (2) , etc. MADE this.......................................... day of................................................. 20.............