4th October, 2021
By Wandoo Sombo/Abuja
The Supreme Court has reserved judgment in the suit filed by the Attorneys General of the 36 states querying the legality of the Presidential Executive Order 10, 2020.
President Buhari had in the Executive Order he signed on May 22, 2020, made it mandatory for all states to include allocations of both the legislature and the judiciary in their Appropriation Laws.
This he said was in compliance with Section 121(3) of the 1999 Constitution (as Amended).
A seven-man panel of justices of the apex court led by Justice Musa Datijo, reserved their judgment after listening to arguments canvassed by all the parties.
The states through their attorneys-general in a suit marked SC/655/2020, where the Attorney -General of the Federation was listed as the sole respondent, posed two questions for the Supreme Court to determine.
“Whether having regards to the provisions of Section 6 and 81(3) of the Constitution read together with item 121(3) of the third schedule, the defendant 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 at the states of the Federation being courts created under Section 6 of the constitution.
“Whether considering provisions of Section 6, 80, 81, 120 and 121 whether the Presidential Executive order number 10 of 2020 made by the president on May 22, 2020 to compel the plaintiffs to fund State High Courts, States Sharia Courts of Appeal and Customary Courts of Appeal in violation of the Constitutional provisions vesting responsibility for funding the said courts on the federal government is not unconstitutional and unlawful.”
At the resumed hearing on Monday, while adopting their processes, counsel to the plaintiffs, Mr Augustine Alegeh, SAN, argued that salaries, emoluments, remuneration and allowances of judges, were not supposed to be in any appropriation bill.
Alegeh submitted that under Section 84(4) of the 1999 Constitution, (as amended), funds for such expenditure, were charged and captured in the consolidated revenue fund, not in the budget.
“Our position is that funds meant for the judiciary should be taken from the consolidated revenue fund and handed to the National Judicial Council (NJC) for disbursement to heads of courts as stipulated in Section 6 of the Constitution.
“We have to admit to ourselves that what we are practicing in this country is constitutional democracy and not true federalism”, Alegeh said.
He told the court that his clients had so far, spent about N66 billion in the maintainance of state courts, and he demanded for a refund of the money.
For his part, counsel to the AGF, Mr Tijjani Gazali, SAN, the Acting Director, Civil Appeals, Federal Ministry of Justice, told the court that he filed a preliminary objection and a counter-affidavit in vehement opposition to the suit.
He said the Executive Order 10 was based on a judgement of the Federal High Court that ordered financial autonomy for the judiciary at the state level.
Gazali contended that the said judgement followed a suit that was filed by the Judiciary Staff Union of Nigeria, (JUSUN), in which the NJC, the AGF and the AG of all the 36 states, were listed as respondents.
“My Lords, up to this moment, there is no appeal against that judgement, which they are now contending is different from this suit”, Gazali said.
He added that the plaintiffs suit was a gross abuse of the court process and urged the court to dismiss the suit with reasonable cost.
Alegeh, however, prayed the court to discountenance the argument by the AGF, stressing that JUSUN as a body, lacked the locus-standi to file a suit in any dispute between the state and the federal government.
Meanwhile, five Senior Advocates of Nigeria, SANs, Adegboyega Awomolo, Olisa Agbakoba, Sebastian Hon, Mahmud Magaji and Musibau Adetunbi, announced appearances as amicus curiae (friends of the court).
The Supreme Court invited them to offer their legal opinion on the matter.
In his submission, Awomolo, relied on Sections 81(3), 84(4) and (7), as well as Paragraph 21(e) of the Third Schedule to the Constitution, to argue that the Presidential Executive Order 10, 2020, was unconstitutional.
He said the order could be likened to the one former President Olusegun Obasanjo issued in 2004, which barred Lagos State from benefiting from the federation account.
The senior lawyer maintained that the federal government was constitutionally mandated to take care of both capital and recurrent expenditure of all the courts established for the federation, both states and federal courts.
For his part, Agbakoba, maintained that both the federal government and all the 36 states had in the past 20 years, violated provisions of the Constitution.
Though he urged the Supreme Court to uphold the suit by states, he, however, kicked against their request for a refund of about N66billion.
Agbakoba, urged the apex court to restore Section 162(9) of the Constitution which he said the court wrongly struck down in a suit involving the attorney-general of Abia and the AGF.
“I urge my lords to use this case to break the shackles of the judiciary, I believe that this is an opportunity for the judiciary to finally set itself free,” he said.
Hon, for his part, threw his weight behind the suit by the 36 states and urged the apex court to nullify the Presidential Executive Order 10, 2020.
Magaji said he disagreed with the submission of plaintiffs that the federal government should take care of capital expenditures incurred in funding of state courts.
He argued that no where in the Constitution was it expressly stated that such expenditure should rest on the federal government’s shoulder.
“I am therefore urging my lords to resist the temptation of imputing into the constitution, what is not there,” he said.
Adetunbi, argued that while Section 84(7) of the Constitution, mandated the federal government to pay salaries and emoluments of state courts, under Section 121 (3), the plaintiffs were required to take care of capital expenditure of the courts.
The matter has been adjourned to a date to be communicated to the parties.
The states through their attorneys-general argued that the president, by virtue of the said Executive Order, pushed the federal government’s responsibility of funding both the capital and recurrent expenditures of the state high courts, Sharia Court of Appeal, and the Customary Court of Appeal, to the state governments.
They maintained that the order was a clear violation of Sections 6 and 8(3) of 1999 Constitution, placed the responsibility of funding the listed courts on the federal government.
The 36 states contended that they had been funding capital projects in the listed courts since 2009 and prayed the Supreme Court to order the federal government to make a refund to them.
They argued in their statement of claim that since 2009, the the federal government had not funded the capital and recurrent expenditures of the state high courts, Sharia Court of Appeal and the Customary Court of Appeal of their states.
According to them the federal government has only paid the salaries of the judicial officers of the listed courts.
They posited that Section 81(3) of the 1999 Constitution, made provision for the federal government to fund the courts.
“That item 21(e) of the Third Schedule to the 1999 Constitution provides that the National Judicial Council (NJC) is to collect from the defendant and disburse all capital and recurrent expenditure in respect of all the courts established under Section 6 of the same constitution.
“That section 12(3) of the constitution makes provision for all capital and recurrent expenditures for court not established under Section 6 of the constitution by the respective plaintiff’s states,” they said.
The plaintiff prayed the Supreme Court to quash the Executive Order 10 as well as make an order compelling the federal government to henceforth, fund both capital and recurrent expenditures of the courts