February 12, 2022

The Supreme Court on Friday declared that the Executive Order 10 on the funding of State Judiciary and Legislature is unlawful and unconstitutional.

The implication of the declaration is that all parties, state and Federal Government, should abide by what the Constitution says especially the letters and spirit of Section 81.

In a split decision on Friday, majority of the court’s seven-member panel agreed that the President exceeded his constitutional powers in issuing the EO10.

The judgment was on the suit filed by the 36 States against the Federal Government on the funding of the Judiciary and the constitutionality of the EO10.

Six out of the seven members of the panel proceeded to void and set aside the EO10.

The majority decision also held that it was not the responsibility of the Federal Government to fund the capital and recurrent expenditures of the courts created for States under Section six of the Constitution.

All the seven members agreed that the States were not entitled to be refunded all they have spent before now to maintain those courts.

President Muhammadu Buhari signed into law, Executive Order No 10 of 2020 cited as “the implementation of financial autonomy for state legislature and judiciary Order, 2020”.

A key provision of the said order seeks to enforce financial autonomy of the legislature and judiciary of the states.

It gives power to the Accountant-General of the Federation to deduct from the allocations due to a state from the Federation Account, any sums for the legislature or judiciary of that state which the state fails to release to its legislature or judiciary as the case may be and to pay the funds directly to the state’s legislature or judiciary concerned.

In a judgment by Justice  Muhammed Dattijo the apex court held that the EP10 was inconsistent with the 1999 Constitution and therefore unconstitutional, illegal, null and void and of no effect whatsoever.

The six Justices are Muhammed Dattijo, Centus Nweze, Hellen Ogunwumiju, Emmanuel Agim, Ejembi Eko and Adamu Jauro.

They held that Nigeria is still a federation and the 1999 Constitution it operates is a federal one.

“The Constitution provides a clear delineation of powers between the state and the Federal Government.

“The President has overstepped the limit of his constitutional powers by issuing the Executive Order 10.

“The country is run on the basis of the rule of law,” Justice Mohammed said in the lead majority judgment”.

According to them, President Muhammad Buhari over- stepped his bounds with the Executive Order 10 and thereby engaged in breach of the constitution and usurpation of powers of heads of other arms of government.

However, only Justice Uwani Abba-Aji gave endorsement to the Order 10 adding that it was in line with the provisions of the Constitution to enforce the separation of powers and functions.

She said: we are aware of the hanky panky, subterfuge played by the state governors against the independence and financial autonomy of state judiciary.

“It is a pitiable eyesore what judicial officers and staff go through financially at the hands of state executives, who often flout constitutional and court orders to their whims and caprices.

“Thus, the presidential Executive Order 10 is meant to facilitate the implementation of the constitutional provisions and aids the states legislature and judiciary in curing the constitutional wrong of their financial autonomy which the states have always denied.

Also, four of the seven-man panel of Justices turned down the request of the 36 state governors for an order of the apex court to compel the federal government to take up funding of capital projects for State High Courts, Sharia Court of Appeal and Customary Court of Appeal,

The four Justices upheld the opposition of the Attorney General of the Federation (AGF) Abubakar Malami SAN and two other senior lawyers, Mahmud Magaji SAN and Musibawu Adetumbi SAN on the issue.

They held that capital projects for the three courts should be funded by the states and not the federal government.

The apex court Justices specifically agreed with Adetunbi SAN who was one of the amici curiae, that the 1999 Constitution has sufficiently provided the manner the federal and states should fund their courts.

They further upheld his submission that part of the load that the Constitution wants the Federal Government to carry is narrowed down in Section 84(7) while Section 121 also narrows down the load it wants the state governments to carry.

With the majority decision, the state governments are to continue funding of the three courts as they have been doing since 1999.

The Attorney-General of Abia had on behalf of 35 others dragged the Attorney-General of the Federation AGF before the Supreme Court.

He prayed for an order to compel the federal government to take up funding of capital projects for the three courts on the grounds that they are the courts of the Federation and as such the funding of their capital project should flow from the Consolidated Revenue Fund of the Federation.

Their lead counsel, Chief Augustine Alegeh, SAN, argued that the salaries and emoluments of the judges of the three courts are being paid by the federal government in line with section 81 of the 1999 constitution and as such the section should be invoked to place the responsibility of funding their capital projects at the doorsteps of the federal government.

The 37 state governors had in their joint suit also applied for an order of the apex court to compel the federal government to pay them N66 billion being an amount they have so far spent on capital projects for the 3 courts in their respective states.

In the bid to resolve the constitutional logjam, the Chief Justice of Nigeria CJN Justice Tanko Mohammad had invited five Senior Advocates of Nigeria as Amici Curies (friends of court) for their input in resolving the matter.

However, three out of the five threw their weight behind the request of the 36 governors.

In their separate submissions, they had argued that the federal government should be responsible for the funding of capital projects for the three courts, since they are courts established for the federation.

While two other senior lawyers expressed dissenting views on the contentious issue.(NAN)