……Say Executive Order Compelling States To Fund The Judiciary Is Unconstitutional
The Executive Governors of the 36 states of the Federation have filed an action against President Buhari before the Supreme Court of Nigeria over the Presidential Executive Order No. 00-10 of 2020 which grants financial autonomy to the legislature and the judiciary in the 36 states of the federation.
The suit signed by Aikhunegbe A. Malik, SAN; and filed on behalf of the 36 states via Originating Summons on 17th September, 2020 by their lawyers:
Augustine O. Alegeh, SAN FCIArb [UK];
Babajide Koku, SAN;
Solomon Umoh, SAN;
Garba Tetengi, SAN;
Tawo Eja Tawo SAN;
Olaseni Adio SAN;
Ekeme Ohvwovoriole, SAN;
Paul Harris Ogbole, SAN;
Aikhunegbe A. Malik, SAN;
Afam Osigwe, Esq., FCIArb. Among others.
In the suit which was marked Sc/Cv/655/2020 sighted by TheNigeriaLawyer (TNL), the governors are seeking determination of two questions, namely: whether by sections 6 and 81(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended), read together with Item 21(e) of the Third Schedule thereof, the Federal Government “is not constitutionally obligated and/or charged with the responsibility for funding all capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN.”
The Governors also want to know whether by sections 6, 80, 81, 120 and 121 of the Constitution, it is not unlawful for the Presidential Executive Order No. 00-10 of 2020 to compel the Governors to fund State High Courts, States Sharia Courts of Appeal and Customary Courts of Appeal
The Governors urged the court to answer the questions in the affirmative and order president Buhari to refund all monies expended by states in funding capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of states being courts established by section 6 of the constitution
They are also seeking an order “setting aside the Presidential Executive Order No. 00-10 of 2020 made by the President of the Federal Republic of Nigeria on 22nd May, 2020 on the ground that same is in violation of the express provisions of the CFRN and, therefore, unconstitutional.”
In an affidavit of 36 paragraphs deposed to by one Chinweoke Onumonu Esq., a lawyer in the Law Firm of A.O. Alegeh & Co., the governors claimed that it is the duty of federal government to fund all the capital and recurrent expenditures of all courts created under section 6 of the constitution, namely, the Supreme Court of Nigeria;
the Court of Appeal;
the Federal High Court;
the National Industrial Court;
the High Court of the Federal Capital Territory;
the High Court of a State;
the Sharia Court of Appeal of the Federal Capital Territory;
the Sharia Court of Appeal of a State;
the Customary Court of Appeal of the Federal Capital Territory; and
the Customary Court of Appeal of a State.
They said since 5th May, 1999, FG has not funded the capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of States, apart from paying only the salaries of the judicial officers of the said Courts adding that such burden
In addition, the governors said they have been made to not only fund both the capital and recurrent budgets of those courts, but have also been providing housing for judges, cars, training, books etc
“That the Defendant has made it a pre-condition for the appointment of Judges and Khadis for State High Courts, Sharia Courts of Appeal and Customary Courts of Appeal for the Plaintiff States to provide Court Houses, Judges’ residential Quarters and brand-new Cars for the proposed appointees…
“That the Plaintiffs have also been compelled by the failure and neglect of the Defendant to fund the recurrent expenditure of the said Plaintiffs States’ Courts by providing for the training, official clothing, Law books, healthcare and overall welfare of the judicial officers serving in the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the Plaintiff States. I know that the Defendant funds all of these matters for only judicial officers in the Federal Courts.” the Affidavit partly reads
In a written address in support of the Originating Summons, Aikhunegbe Malik, SAN, argued on behalf of the governors that the provisions of sections 6(5), 81(3) and Item 21(e) of the Third Schedule to the Constitution are plain, simple straightforward and unambiguous and should therefore be given their ordinary grammatical meanings. He cited many decided cases including A.G Kano State v. A.G Federation (2007) 6 NWLR (Pt. 1029) 164, where the Supreme Court, held at page 188 at Paragraph H that:
“The Court has a duty to interpret the words contained in the Constitution and any Statute in their ordinary and literal meaning. In other words, it is not the duty of the court to go outside the words used in a statute to import an interpretation which may be or is convenient to the court or to the parties to one of the parties”
Malik, SAN, argued further that the Presidential Executive Order is unconstitutional because it seeks to states to fund recurrent and capital expenditure of the State High Courts, Sharia Courts of Appeal and Customary Courts of Appeal, which form part of the Courts whose funding is the prerogative of the Federal Government in line with the provisions of Sections 6, 81(3) and Item 21[e] of the Third Schedule to CFRN.
He added that sections 80 and 120 of the CFRN provide for the establishment of a Consolidated Revenue Fund for the Federation and States from which the judiciary is paid as provided by sections 81 and 121 “and the draftsmen of the Constitution did not contemplate a situation whereby the Federal Executive would interfere with the authorization of expenditure from the Consolidated Revenue of the State as envisaged in the provisions of the Presidential Executive Order No. 00-10 of 2020.”
He concluded that powers vested in the Accountant-General of the Federation by the Executive Order to make deductions from funds which form part of the Consolidated Revenue of the States is inconsistent with the provisions of Section 120 and 121 of the CFRN and therefore void.
