The Supreme Court has reserved judgement in a suit brought by the 36 states of the federation against financial autonomy granted to the judiciary at the state level by President Muhammadu Buhari.
The president had on May 22, 2020, signs Executive Order 10, 2020 which makes it mandatory for all states of the federation to include allocations of both the legislature and the judiciary in their appropriation laws in compliance with section 121(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended).
Disatisfied with the president’s action, the 36 States, through their Attorneys-general instituted the suit before the highest court in the land on September 17, 2020, querying the legality of the Presidential Executive Order 10.
Specifically, the 36 states of the federation have asked the Supreme Court to compel the federal government to refund about N66billion spent on funding courts in the states.
In their suit marked SC/655/2020, the plaintiffs posed two legal questions for the Supreme Court to determine, following which they asked for nine reliefs.
The Attorney General of the Federation and minister of Justice is the only respondent in the matter.
The plaintiffs argued that President Buhari, 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 contended that the order was a clear violation of sections 6 and 8(3) of 1999 Constitution, which made it the responsibility of the federal government to fund the listed courts.
Noting that they had been funding capital projects in the listed courts since 2009, the states prayed the apex court to order the federal government to make a refund to them.
A statement of claim filed by the states before the apex court reads in part: “Since the 5th of May 2009, the Defendant had not funded the capital and recurrent expenditures of the state high courts, Sharia Court of Appeal and the Customary Court of Appeal of the Plaintiffs’ states, apart from paying only the salaries of the judicial officers of the said courts.
“The plaintiffs’ states have been solely responsible for funding the capital and recurrent expenditures of the state high courts, Sharia Court of Appeal and the Customary Court of Appeal of the Plaintiffs’ states, which the Defendant has failed and/or refused to fund”.
Augustine Alegeh, who represented the states, stated this while making submissions in the suit seeking to quash the presidential executive order 00-10 of 2020, which mandates state governments to fund the judiciary.
The order empowers the accountant-general of the federation to deduct funds for the state legislature and the judiciary from the federal allocations to the states.
According to the states, section 81(3) of the 1999 Constitution, makes provision for the funding of 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,” the document reads.
The plaintiffs further stated: “That Section 121(3) of the constitution makes provision for all capital and recurrent expenditures for courts not established under Section 6 of the constitution by the respective plaintiff’s states.”
While adopting their processes before the court, Alegeh argued that salaries, emoluments, remuneration and allowances of judges are not supposed to be in any appropriation bill.
He contended that under section 84 (4) of the constitution, as amended, funds for such expenditure are captured in the consolidated revenue fund, not in the budget.
He said, “Our position is that funds meant for the judiciary should be taken from the consolidated revenue fund and handed to the 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 practising in this country is constitutional democracy and not true federalism.”
Responding, Tijani Gazali, counsel to the Attorney-general of the federation (AGF), opposed the request of the plaintiffs.
He said executive order 10 was based on a judgment delivered by Adeniyi Ademola, a former judge of a federal high court, in a suit that was filed by the Judiciary Staff Union of Nigeria (JUSUN), in which the NJC, the AGF and the attorneys-general of the 36 states, were joined as respondents.
Gazali said since the states never appealed the judgment, the present suit at the apex court is an abuse of court process.
He further pointed out that the issue of salary and emoluments are expressly stated in the constitution as the responsibility of the federal government, but that the section was silent on funding of capital projects.
“We, therefore, urge my lords to dismiss this suit with a reasonable cost,” Gazali said.
However, Alegeh urged the supreme court to discountenance the argument by the AGF.
He stated: “This is a dispute between the state and the federal government. The states and the federal government were defendants in the case. The plaintiff was JUSUN.
“Even if a state had raised this issue before the federal high court, the federal high court would have no jurisdiction to hear the matter because the constitution provides that all disputes between states and federal government are to be determined by the supreme court.”
He also submitted that the judgment at the high court relates to section 121 of the 1999 constitution, “which deals essentially with funding of inferior courts (magistrate courts, area courts), and we have admitted that is our responsibility and we are meeting it”.
“JUSUN cannot raise a dispute between the states and the federal government. Only the states or the federal government can trigger the original jurisdiction to come to the supreme court,” he added.
Meanwhile, five senior advocates of Nigeria (SANs) were invited by the Supreme Court to offer legal opinion on the matter.
The SANs, Adegboyega Awomolo, Olisa Agbakoba, Sebastian Hon, Mahmud Magaji and Musibau Adetunbi, announced their appearances as amicus curiae (friends of the court).
The senior lawyers appeared before the court as early as 8am on the invitation of the Chief Justice of Nigeria (CJN) Justice Ibrahim Tanko Muhammad, as amicus curies (friends of the court) to make submissions that will guide the court in making a well-informed decision on the issue.
Awomolo, who took the position of the states, said, “The defendants have admitted that they have been funding the recurrent expenditure of the states, but did not provide reasons why they have refused to fund the capital expenditure.”
He said it is the responsibility of the federal government to fund both recurrent and capital expenditure.
“My submission is that the presidential executive order 010 is unconstitutional,” Awolowo added.
On his part, Agbakoba said both the states and the federal government have breached the constitution.
He said the act of the Lagos State government in funding its state judiciary is contrary to the provisions of the constitution, but agreed that it is the responsibility of the federal government to fund both the recurrent and capital expenditure of courts.
He, however, maintained that the states are not entitled to a refund. “Nobody sent them,” he said.
Another SAN, Hon, also agreed with Agbakoba and Awomolo.
But Magaji and Adetunbi, in their submissions, said funding of the state judiciary is not the responsibility of the federal government.