A.g. Abia State & Ors V. A.g. Of The Federation (2022)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C.

By their Originating Summons filed on the 17th September 2020, the plaintiffs seek answers from this Court to the following questions:-

1. Having regards to the clear and unambiguous provisions of Section 6 and 81(3) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) (“CFRN”), read together with item 21(e) of the Third Schedule thereof, whether the defendant is not constitutionally obligated and/or charged with the responsibility for funding all capital and recurrent expenditure of the High Courts, States Sharia Courts of Appeal and Customary Court of Appeal of the Federation of Nigeria, being Courts created under Section 6 of the CFRN.

​2. Considering the provisions of Sections 6, 80, 81, 120 and 121 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), whether the Presidential Executive order No. 00-10 of 2020 made by the president of the Federal Republic of Nigeria on 22nd May, 2020 to compel the plaintiffs to fund State High Courts, States Sharia Courts of Appeal and Customary Court of Appeal in violation of the constitutional provisions vesting responsibility for funding the said Courts on the Federal Government is not unconstitutional and unlawful.

They urge the Court, on answering the questions, to grant them declaratory and injunctive reliefs as follows:-

1. A DECLARATION that by virtue of the clear and unambiguous provisions of Sections 6 and 81(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended) (CFRN) THE Defendant’s is constitutionally obligated and/or charged with the responsibility for funding of all capital and recurrent expenditure for the High Courts, Sharia Courts of Appeal and Customary Court of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN.
2. A DECLARATION that by virtue of the clear, lucid and unambiguous provisions item 21(e) of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (As amended) (CFRN) THE Defendant is 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.

3. A DECLARATION that the refusal, failure and neglect of the Defendant to fund the 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 is unconstitutional.
4. A DECLARATION that the Executive Order No 00-10 of 2020 made by the President of the Federal Republic of Nigeria on 22nd May, 2020 to compel the plaintiffs to fund State’s High Courts, States Sharia Courts of Appeal and Customary Courts of Appeal in violation of the constitutional provisions vesting responsibility in respect of same on the Federal Government is unconstitutional.
5. AN ORDER compelling the defendant to henceforth fund 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.
6. AN ORDER compelling the Defendant to refund to the plaintiffs all sums expended by the plaintiffs in funding the capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the respective Plaintiffs’ States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN which said funds ought to have been expended by the Defendant.
7. AN ORDER compelling the Defendant to refund and pay over to each plaintiff the amount set out against the name of each plaintiff in Exhibit “A” exhibited in the affidavit in support of this originating Summons, being the true and actual amount expended by each plaintiff for the funding of the capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the respective plaintiff States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN, for the period 5th May, 2009 to 31st January, 2020.
8. AN ORDER compelling the Defendant to refund and pay over to each plaintiff State all amounts expended by each plaintiff for funding the capital 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, from 31st January 2020 until the date of delivery of judgment by the Supreme Court of Nigeria.
9. 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.

A sixty three paragraph affidavit, eleven paragraph further affidavit and a second further affidavit support plaintiffs’ Originating Summons. Annexed to the second further affidavit is the list of the capital expenditure incurred by some of the plaintiffs’ States for their Courts listed in Section 6(5) of the 1999 Constitution (as amended). The Plaintiffs also filed their written brief on 27th November in relation to their Originating Summons.

The defendant entered conditional appearance and filed their counter-affidavits and a written address in opposition to the Originating Summons. He also filed a notice of preliminary objection to the competence of plaintiffs’ suit.

Parties have exchanged written addresses in respect of the preliminary objection as well.

Five amici curiae, Dr. Olisa Agbakoba, Asiwaju Adegboyega Awomolo, S. T. Hon, Mahmud Abubakar Magaji and Musbau Adetunbi, at the invitation of the Hon. the Chief Justice of Nigeria, given the topical nature of the issues canvassed by the suit at hand, have also obliged the Court their respective briefs.

DEFENDANT’S PRELIMINARY OBJECTION

Defendant’s preliminary objection to the competence of plaintiffs’ suit, being a jurisdictional issue, must be addressed first. Otherwise, no matter the degree of thoroughness put into the determination of the suit, once that is done without the necessary authority, the effort will come to naught. See Madukolu V. Nkemdilim (1962) 2 SCNLR Customary Court of Appeal, Edo State V. Aguele & Ors (2017) LPELR-44632 (SC) and AG. Federation V. AG. Anambra State (2017) LPELR-43191.

The Defendant asserts that plaintiffs’ claim is a bid to relitigate issues earlier heard and determined by the Federal High Court sitting in Abuja in suit No. FHC/ABJ/CS/667/2013: JUDICIAL STAFF UNION OF NIGERIA V. NATIONAL JUDICIAL COUNCIL AND 73 ORS. It is argued that the plaintiffs herein were represented by their governors and judgment delivered on the issues determined in the previous suit at the Federal High Court. The judgment, the defendant contends, subsists and binds the plaintiffs. The valid subsisting judgment of the Federal High Court, it is submitted, disentitles the plaintiffs from further invoking this Court’s jurisdiction on a matter that was so validly decided earlier.

The plaintiffs contend otherwise. They insist that neither the parties nor the issues determined previously in suit No. FHC/ABJ/CS/667/13 are same or similar as those in the instant suit. Dr. Olisa Agbakoba SAN, more pointedly, submits that whereas the JUSUN suit No. FHC/ABJ/CS/667/13 the learned counsel for the defendant asserts bars this Court from entertaining the instant suit is about “how” the Judiciary receives its fund, the plaintiffs case on the other hand, is about “who” funds the Judiciary.

​It is settled, I agree, that res Judicata only operates to bar subsequent proceedings between the same parties or their privies in respect of the very or related matter previously heard and determined by a Court of competent jurisdiction. In deciding whether or not the plea avails the defendant, the subsequent Court must examine the facts in issue and the parties before the earlier Court. The rule of res Judicata is derived from the maxim nemo debet bis vexari proeadem causa. It is the cause in the suit that matters. Section 46(1) of the Evidence Act 2011 dwells on the point thus;-

Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is admissible for the purpose of proving in a subsequent judicial proceeding or in a later stage of the same judicial proceeding the truth of the facts which it states, when the witness cannot be called for any of the reasons specified in Section 39, or is kept out the way by the adverse party.

Provided that-

(a) the proceeding was between the same parties or their representatives in interest;

(b) The adverse party in the first proceeding had the right and the opportunity to cross-examine and

(c) The questions in issue were substantially the same in the first as in the second proceeding.

(Underlining mine for emphasis).

See also ALFRED ASAGBA & ANOR V. ONOPHA OGAJE & ANOR (1972) LPELR-571 (SC), NTUKS V. NPA (2007) LPELR-2076 (SC) AND AG NASARAWA STATE V. AG PLATEAU STATE (2012) LPELR-9730.

​My lords, an examination of the facts agitated at and decided by the Federal High Court in suit No. FHC/ABJ/CS/667/2013 as well as those the plaintiffs seek to raise in the instant case leaves one in no doubt that the plea of res judicata does not avail the defendant. The facts in the two matters show clearly that neither the subject matter nor the parties are the same. I so hold in overruling defendant’s objection. The decisions of this Court in COLE V. JIBUNOH & ORS (2016) LPELR-40662 (SC), IGBEKE V. OKADIGBO (2013) 12 NWLR (PT 1368) 225 and OGOEJEOFO V. OGOEJEOFO (2006). ALL FWLR (PT 301) 1729 SC alluded to by learned senior counsel to the defendant, T.A. Gazali, SAN, on the point are very opposite.

THE SUBSTANTIVE CASE

Plaintiffs brief contains two issues for the determination of their claim thus:-

i. Having regard to the clear, lucid and unambiguous provisions of 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 whether the Defendant is not constitutionally obligated and charged with the responsibility for the funding of all capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of all the States of the Federation of Nigeria being Courts created under Section 6 of the said Constitution.

ii. Considering the provisions of Sections 6, 80, 81, 120 and 121 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) whether the Presidential Executive Order No 00-10 of 2020 made by the President of the Federal Republic of Nigeria on 22nd May 2020 to compel the plaintiffs to fund State High Courts, State Sharia Courts of Appeal and Customary Courts of Appeal in violation of the constitutional provisions vesting responsibility for funding the said Courts of the Federal Government is not unconstitutional.

Senior counsel on both sides as well as the amici curiae agree, and rightly too, that the resolution of the issues the plaintiffs formulate for the purpose of determining their claim lies squarely on the Court’s interpretation of the relevant Sections of the 1999 Constitution (as amended) by virtue of which the reliefs are sought. Senior counsel are correct to contend that to succeed in the task, the Court must discover the intention of the framers of the sections in order to ensure their persistence. Where the Court finds the words that constitute the applicable sections clear and unambiguous, the discharge of the Court’s duty lies in the application of the literal meaning of the words to the facts in dispute except if doing so will lead to manifest absurdity or inconsistency with the rest of the Constitution. See NIGERIA PORTS AUTHORITY PLC V. LOTUS PLASTIC LTD & ANOR (2005) LPELR-2028 (SC) and PROFESSOR JERRY GANA CON V. SOCIAL DEMOCRATIC PARTY & ORS (2019) LPELR – 47153 (SC).

It is indeed trite that being constitutional provisions, the Court must construe the sections liberally in order to enforce and protect the end they are designed to serve rather than embarking on a construction that defeats the obvious purpose and end of the sections. A holistic approach with all the related sections of the Constitution being considered together provides the magic wand. See AG LAGOS STATE V. AG FEDERATION (2014) LPELR – 22701 (SC), AG ABIA STATE V. AG FEDERATION (2018) 17 NWLR (PT 1648) 299 at 350, 353.

Learned senior counsel Chief Awomolo and Chief S.T. Hon are particularly right in their respective submissions that the Court, in the task before it, should be guided by the country’s constitutional history and the mischief the sections the Court reviews seek to cure. In INEC V. ASUQUO (2018) 9 NWLR (PT 1624) 305 at 326, this Court to this end restated thus:-

…It is well settled that the history of the circumstances which led to the enactment is generally allowed in the construction of the meaning and scope of the enactment such historical factors enable the interpreter or the Court to determine whether the statute or, where it is an amendment, was intended to alter the law or leave it where it stood before… The history behind the enactment of Law No 7 of Cross River State 2007 stems from ceding part of Bakassi to Cameroun. Thus the enactment of the said law sought to and actually adjusted the boundary of Akpabuyo to make room for the returnees. (Underlining supplied for emphasis).

See also G.C.M. LTD V. TRAVELLERS PALACE HOTEL (2019) 6 NWLR (PT 1669) 507 at 530 – 531, FIDELITY BANK PLC V. MONYE (2012) ALL FWLR (PT 631) 1412 and LAU V. PDP (2018) 4 NWLR (PT 1608) 60.

It must be conceded to learned senior counsel, particularly Chief S.T. Hon, that the sections on which plaintiffs’ suit hinges are provided for the first time in the 1999 Constitution (as amended). None of the 1960, 1963 and 1979 Constitutions contained similar provisions on the establishments of “Federation” Courts, the National Judicial Council and its role in the funding of the Courts, as are made by the 1999 Constitution. Indeed, as it has been submitted, there must be reasons for the elaborate provisions in the 1999 Constitution which provisions the earlier constitutions omitted. The new sections must have been put in place to avert some mischief their omission in the past had engendered.

In CHIKEZIE ONYEANUSI V. MISCELLANEOUS OFFENCES ENBOLDEN TRIBUNAL (2002) LPELR – 2066 (SC) this Court, in restating the principle laid down in 1584 in the Heydon’s case, cited with approval Lindler M.R’s dicta IN RE MAYFAIR PROPERTY CO (1898)2 thus:-

In order to properly interprete any statute it is as necessary now as it was when Lord Coke reported Heydon’s case (1584) 3 Rep 7a to consider how the law stood when the statute to be construed was passed, what the mischief was, for which the old law did not provide and the remedy provided by the statute to cure that mischief. (Underlining supplied for emphasis).

The Court’s resort to the historical settings and antecedents of enactments as aid to their interpretation appear endless. See INTERNATIONAL BANK FOR WEST AFRICA V. IMANO (NIG) LTD & ANOR (1988) 2 NWLR (PT 85) 633 at 668, OGBONNA V. AG IMO STATE & ORS (1992) LPELR – 2287 (SC) and ABUBAKAR V. YAR’ADUA & ORS (2008) LPELR – 51 (SC).

In the defendant’s brief of argument settled by Abubakar Malami, SAN, Attorney General of the Federation, the importance of the EXPRESSIO UNIUS EST EXCLUSIO ALTERNUS rule in the construction of statute, particularly the constitution, the grundnorm, has inter-alia been dwelt upon. It is said to be an aid that cannot also be over-emphasized. It is indeed a well settled principle of construction of statutes that where a section names specific things among many other possible alternatives, the intention is that those not named are not intended to be included. The rule is that the express mention of the one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication, with regard to same issue. See OGBUNYIYA V. OKUDO (1979) 6 – 9 SC 32, F.C. UDOH V. ORTHOPAEDIC HOSPITALS BOARD AND ANOR (1993) LPELR – 3308 (SC) and AG ONDO STATE V. AG EKITI STATE (2001) LPELR – 622 (SC).

We must be mindful of the type of constitution which sections the Court sets out to interprete. Section 2(3) of the 1999 Constitution (as amended) defines Nigeria as a Federation consisting of thirty six states and a Federal Capital Territory. This Court in HON MINISTER FOR JUSTICE AND ATTORNEY GENERAL OF THE FEDERATION V. ATTORNEY GENERAL LAGOS STATE (2013) LPELR – 20974 (SC) cited with approval Professor Ben Nwabueze in his book, “Federalism in Nigeria under a presidential Constitution,” to circumscribe the concept of a Federation to presuppose:-

An arrangement whereby powers of government within a country are shared between a national, country-wide government and a number of regionalized (i.e. territorially localized) governments, in such a way that each exists as a government separately and independently from others, operating directly on persons and property within its territorial area and its own apparatus.

The learned author is however quick to note that the 1999 Constitution which provides for the country’s Federation, being a unitary one, exhibits self-evident fundamental contradictions. Unitarianism and federalism, he authoritatively adds, are logically opposing and mutually exclusive concepts. A Unitary Constitution providing for the federal system raises serious implications for the autonomy of the federating units which characteristic remains the most overriding requirement of a Federation.

Unarguably, the very Section 5 of the 1999 Constitution that vests the executive authority of the Federal Government in the president similarly vests the executive authority of a State Government in the governor of the state. Remarkably, the extent of the authority vested in both the president and the governor in relation to their respective areas of influence “extend to the execution and maintenance of the very same Constitution.” The legitimate question that arises, given this arrangement is whether the president’s power to execute and maintain the provision of the Constitution relating to, for example, the establishment and funding of Courts listed under Section 6 thereof, subsumes or overrides the similar powers the Constitution vests in the plaintiffs. The question instructively informs my understanding of the dispute between the parties in this suit. To find the answer to the question, it is apt to examine, interprete and apply the relevant and germane Sections of the 1999 Constitution to the facts in issue in the case and the sections of the Constitution only.

The observation of Bello JSC as he then was (of blessed memory) in the case of SENATOR ADESANYA V. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA AND ANOTHER (1981) 5 SC 112 at 149 which he reiterated in ATTORNEY GENERAL OF BENDEL STATE V. ATTORNEY GENERAL OF THE FEDERATION (1981) LPELR – 605 (SC) 43 – 44 must continue to guide the Court in the due exercise of its interpretative jurisdiction. His lordship authoritatively enthused:-

The Court shall at all times bear in mind that our Constitution is unique and the solutions to our constitutional problems must invariably be found within the Constitution itself or upon its construction… great care should be exercised in the use of the rules of constitutional law formulated for countries whose Constitutions are not in pari materia with our Constitution and whose ways of life are not identical with ours. (Underlining supplied for emphasis).

Also, the place of precedent, the doctrine of stare decisis, in adjudication is an eminent one. The question whether or not the decisions of this Court bind subordinate and indeed the Court itself is no longer open to argument. The doctrine directs that once a point of law has earlier been pronounced upon by a Court of competent jurisdiction, the Court and those subordinate to it are bound by such pronouncement on the very principle in a subsequent case.

In the case at hand, if any of the sections to be interpreted had previously been interpreted, the Court would be bound by its earlier construction except if same is demonstrated to be reached per incuriam or is unjust to persist. For us, Section 287 of the 1999 Constitution (as altered) has codified this common law doctrine. See NIGERIA AGIP OIL COMPANY LTD V. CHIEF GIFT NKWEKE & ANOR (2016) LPELR – 26060 (SC) and ALHAJI ADISA V. EMMANUEL OYINWOLA (2000) LPELR -186 (SC).

RESOLUTION OF ISSUES

My lords, the first issue distilled by the plaintiffs had been raised before and substantially pronounced upon by this Court. Some pronouncements of the Court relevant to the two issues distilled by the plaintiffs and adopted by all senior counsel, the resolution of which as being determinable of the instant claim remain availing in AG FEDERATION V. A.G ABIA STATE (NO 2) (2002) 6 NWLR (PT 764) 542 – 905 and A.G BENDEL STATE V. A.G FEDERATION & ORS (1982) 3 NCLR 1. These are decisions alluded to by senior counsel on both sides of the claim in their submissions before us with hardly any sustained effort at distinguishing the facts and legislation in the earlier cases with those in the instant case.

In AG FEDERATION V. AG ABIA STATE (NO 2) (supra) Ogundare JSC (of blessed memory) in the lead judgment at 688, 689 of the law report stated:-

It is clear from the above provisions that it is the Consolidated Revenue Fund of the Federation, and not the Federation Account that is charged with the salaries and allowances and recurrent expenditure of judicial offices in the Federation. The Consolidated revenue Fund of the Federation is established under Section 80 of the Constitution. The charge on the Federation account is clearly inconsistent with Section 84 of the Constitution and is therefore unconstitutional, notwithstanding the provision of Subsection 9 of Section 162… (Underlining supplied for emphasis).

Uwais, CJN in his concurring contribution at pages 760 – 761 of the law report opined as follows:-

…It has transpired that …deductions are being made from the Federation Account in respect of monies paid to the National Judicial Council for the funding of the federal and state judiciaries… All these deductions are carried out as first line charge on the Federation Account. All the deductions are not provided for by the 1999 Constitution, notwithstanding the provisions of Section 162 Subsections 9 in the case of the National Judicial Council, so that even if any enactment has provided for them, like the Appropriation Act by the National Assembly, such enactment is inconsistent with the Constitution and is therefore invalid to the extent of the inconsistency. (Underlining supplied for emphasis).

Onu JSC (of the blessed memory) at pages 876 – 877 pointedly concurred thus:-

Consideration for the funding of the Judiciary is provided for in the Constitution. Sub-sections (1), (2), (4) and (7) of Section 84 of the Constitution provide:-

‘(1) There shall be paid to the holders of the offices mentioned in this section such remuneration, salaries and allowance as may be prescribed by the National Assembly, but not exceeding the amount as shall have been determined by the Revenue Mobilisation Allocation and Fiscal Commission.

(2) The remuneration, salaries and allowances payable to the holders of the offices so mentioned shall be a charge upon the Consolidated Revenue Fund of the Federation.’

At Subsection 4, the long list (which I do not intend to set out) of the holders of such offices is set out while Subsection 7 (ibid) enacts that:

‘7. The recurrent expenditure of judicial offices in the Federation (in addition to salaries and allowances of the judicial officers mentioned in Subsection (4) of this section) shall be a charge upon the Consolidated Revenue Fund of the Federation.’

The above provisions have been made to emphasise how it is the Consolidated Revenue Fund of the Federation established under Section 80 of the Constitution and not the Federation Account that is charged with the salaries and allowances of judicial officers as well as recurrent expenditure of judicial offices in the Federation. It is then to be stressed how the charge on the Federation Account is clearly inconsistent with Section 84 of the Constitution and is therefore unconstitutional notwithstanding the provision of Subsection 9 of Section 162 which states:

‘9. Any amount standing to the credit of the judiciary in the Federation Account shall be paid directly to the National Judicial Council for disbursement to the heads of Courts established for the Federation and the States under Section 6 of this Constitution.’

If it was intended by the above provision to give the Judiciary, a share of the Federation Account such has not been made manifest. Sequel to these, all the charges on the Federation Account considered herein are inconsistent with the Constitution and are therefore invalid.

(Underlining supplied for emphasis).

The foregoing pronouncement of this Court remains binding. The plaintiff has not urged us to depart from the decision let alone to persuade us accordingly.

The obvious implication is that this Court’s decision that Section 84 of the Constitution provides for the funding of the judiciary to the extent specified in Subsections (4) and (7) thereof persists.

Learned senior counsel for the plaintiffs as well as the amici curiae on their side insists that the defendant, beyond what the two subsections of Section 84 of the Constitution provide for the funding of plaintiffs’ Courts listed in Section 6(5)(e) (g) and (i), is obligated to fund the capital expenditure of the listed Courts as well. They contend that having been established pursuant to Section 6 of the Constitution as “Federation Courts” they are entitled to the same treatment in terms of their funding as do the Federation Courts listed under Section 6(5) (a) (b) (c) (cc) (f) and (h) of the Constitution. Besides, Item 21(e) of the Third Schedule of the Constitution empowers the National Judicial Council to collect, control and disburse all monies, capital and recurrent, for the judiciary.

I am not impressed by these submissions.

​I find merit in the submissions of the learned Federal Attorney General, the amici curiae Mahmud A. Magaji SAN and Musibau Adetunbi SAN, that Section 6 does not create the Courts listed under Subsection 5 thereof. The section only vests in the two sets of Courts the judicial powers exercisable by them as superior Courts of record. It is about the authority the Courts require to adjudicate and determine any matter put before them that are within their jurisdiction. See MOHAMMED ABACHA V. FEDERAL REPUBLIC OF NIGERIA (2014) LPELR – 22014 (SC), CUSTOMARY COURT OF APPEAL EDO STATE V. CHIEF ENGINEER E.A. AGUELE & ORS (2017) LPELR-44632 (SC) and J.O. ANAKWENZE V. LOUIS ANEKE & ORS (1985) LPELR – 481 (SC).

Secondly, Section 84(7) which is clear and unambiguous charges only the salaries, allowances and recurrent expenditure of the plaintiffs’ Courts listed in Section 6(5) (e) (g) (i) to the Consolidated Revenue Fund of the Federation. Their capital expenditure cannot be read into the subsection that has not so provided. The principle, we all agree, is well settled in the construction of statutory provisions, that where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included. See ATTORNEY GENERAL BENDEL STATE V. AIDEYAN ​ (1989) 9 SC 127 and FRN V. OSAHON & ORS (2006) LPELR -3174.

The Courts listed in Section 6(5) (e) (g) and (i) remain State Courts established under Sections 270 to 281 of the 1999 Constitution. The defendant is only obligated to fund them in the manner provided for under Section 84 (7) because the Constitution, notwithstanding the fact that they are state Courts, has so provided. The Constitution being supreme, all its provision have binding force on all authorities and persons. See BUBA MARWA & ORS V. ADMIRAL MURTALA NYAKO (2012) LPELR – 7837 (SC), ABACHA V. FAWEHINMI (2000) 4 SC (PT II) 1 and UGBA & ANOR V. SUSWAM & ORS (2014) LPELR – 22882 (SC).

Chief Awomolo seems to rely on a passage at page 82 in Professor Ben Nwabueze’s book “Constitutional Democracy in Africa”, volume 3, to suggest that the defendant is obligated to fund the capital expenditure of plaintiffs’ Courts listed under Section 6(5) (e) (g) and (i) notwithstanding that same has not been provided for anywhere in the Constitution. Along with senior counsel for the plaintiffs, Chief Olisa Agbakoba SAN and S.T. Hon SAN, they contend that Section 81(3) read along with Item 21(e) of the Third Schedule to the Constitution place on the defendant the duty of funding the capital expenditure of the listed Courts. These submissions are, one is afraid, neither justified by Professor Nwabueze’s stand on the point nor a holistic interpretation of the sections of the Constitution relevant to the determination of plaintiffs’ claim.

​Firstly, Professor Nwabueze, in the write-up, is not only of the view that the Constitution is silent on the capital expenditure of the judiciary but that the silence is “unexceptionable”. Had his view been to the contrary, views of authors are only persuasive and not, unlike decisions of this Court, necessarily binding. The position in the present case, given the seemingly endless decisions of this Court on construction of statutes, is that since Section 84(4) and (7) has not, unlike the salaries, allowances and other recurrent expenditure of the listed plaintiffs’ Courts, charged their capital expenditure to the Consolidated Revenue Fund of the Federation established under Section 80 of the Constitution, the defendant is not obligated to fund the Courts’ capital expenditure. Paragraph 21(e) of the Third Schedule to the Constitution relied upon by the plaintiffs’ senior counsel and Amici Curiae in support of plaintiffs’ claim may not, after all, be that helpful. I shall return to this subsequently. For now, there is the need to look at Sections 80 and 81 of the 1999 Constitution more closely.

​Learned Amicus Curiae Musbau Adetunbi SAN is on a very strong wicket in his contention that the two ways of facilitating the withdrawal of monies from the Consolidated Revenue Fund or any other public fund of the Federation are as provided under Sections 80 and 81 of the 1999 Constitution:

(i) Where the Constitution makes the money being withdrawn a charge on the fund such as that done pursuant to Section 84(4) and (7) of the Constitution and

(ii) Where the withdrawal of the money is authorized by an Act of the National Assembly pursuant to Section 80 and 81 of the Constitution are:-

Section 81(1) and (2) of the Constitution empower the President (the defendant) to present an Appropriation bill containing estimates of expenditure other than those charged upon the Consolidated Revenue Fund of the Federation for the issue from the Fund of the sums necessary to meet the expenditure and the appropriation of same for the purposes specified in the bill. Since Section 84(4) (7) of the Constitution do not charge the capital expenditure of any of the Courts listed in Section 6 thereof, the President, by an Appropriation bill pursuant to Section 81(1) and (2), is empowered to provide for the issue from the Consolidated Revenue Fund sums necessary to meet the capital expenditure of Courts other than plaintiffs’ Courts listed under Section 6(5) (e) (g) and (i). The power of the National Assembly under Section 4 of the Constitution to legislate for the issuance of the sums necessary to meet the capital expenditure of the Courts from the Consolidated Revenue Fund of the Federation does not extend to plaintiffs’ Courts listed by Section 6(5) (e) (g) and (i).

Undoubtedly, Paragraph 21(e) of the Third Schedule to the Constitution cannot be ignored in our interpretative task of determining the merit or otherwise of the plaintiffs’ claim. Though not part of the Constitution, the paragraph remains a good guide to knowing the intention of its framers. Such notes, this Court has decided, while not part of the statutes, are helpful in considering the purpose of the statutory provision(s) and the mischief at which the provision(s) is/are aimed. See UWAIFO V. AG BENDEL STATE & ORS (1982) LPELR – 3445 (SC), YABUGBE V. C.O.P. (1992) LPELR – 3505 (SC), INAKOJU & ORS V. ADELEKE & ORS (2007) LPELR – 1510 (SC) and AKINTOKUN V. LPDC (2014) LPELR – 22941 (SC).

It is evident from the interpretation we place on the relevant sections of the Constitution that in addition to the salaries, allowances and the recurrent expenditure of all the Courts specified in Section 6(5) the Constitution itself charges upon the Consolidated Fund of the Federation, the defendant is empowered pursuant to Section 81(1) (2) & (3) to initiate an Appropriation bill to fund the capital expenditure of the Federal Courts only.

​The charge of the salaries, allowances and recurrent expenditure to the Consolidated Revenue Fund of the Federation pursuant to Section 84(2)(4) and (7) of the 1999 Constitution indeed constitutes a manifest uniqueness of the type of federalism the country operates. Otherwise, plaintiffs’ Courts listed in Section 6(5) (e) (g) and (i) being those of the federating units cannot, in a Federation, benefit from funds belonging to the central government.

Paragraph 21(e) of the Third Schedule to the 1999 Constitution, it must be conceded to the plaintiffs and other senior counsel, is not, after all, an idle provision. Given the powers of the president (the defendant) under Sections 80(2) and 81(1) (2) and (3) of the 1999 Constitution (as amended) to initiate an Appropriation Bill for the funding of the capital expenditure of the Federal Courts listed in Section 6(5) of the Constitution, the amount that stands to the credit of the judiciary would invariably include the capital expenditure of the federal Courts on same, eventually, being appropriated by the National Assembly.

In that light, the National Judicial Council, by paragraph 21(e) to the Third Schedule of the Constitution, is indeed available to “collect, control and disburse all moneys, capital and recurrent, for the judiciary.” It is from this perspective that the word “capital” as appears in the paragraph is stressed to relate only to the Federal Courts in respect of which provision, the president (the defendant), puts an appropriation bill before the National Assembly. The money for the capital expenditure does not, be it repeated, enure to plaintiffs’ Courts listed under Section 6(5) (e)(g) and (i) since the powers of the National Assembly under Section 4 of the Constitution to legislate for the issuance of the sums necessary to meet the capital expenditure of Courts from the Consolidated Revenue Fund of the Federation does not extend to the provision of such funds to plaintiffs Courts listed under 6(5) (e) (g) and of the Constitution. I so hold in resolving plaintiffs’ first issue against them.

Earlier decisions of this Court also provide basis for the resolution of the 2nd issue for the determination of the merit of the instant claim. In AG BENDEL STATE V. AG FEDERATION (supra) this Court, while interpreting Section 149 of the 1979 Constitution which is similar to Section 162 of the 1999 Constitution, declared that the amount in the federation account is public revenue which accrues to the Federal, State and Local Governments in each state. It is contemplated, the Court further held, that the amount or any portion thereof due to the State Governments, on being mandatorily distributed to them, ceases to be retained by the Federal Government on behalf of the beneficiary states. At page 190 lines 21-37 of the law report, Uwais JSC (as he then was subsequently CJN) stated:

It seems to me therefore that once the Federal Account is divided amongst the three tiers of Government, the State Government collectively becomes the absolute owners of the share that is allocated to them (i.e 35 percent) so that it would normally be their prerogative to exercise full control over the share consequently, it will not be appropriate for the Federal Government to administer the share without the authorization of the State Governments. This appears to be logical and in keeping with the fundamental principle of Federation on the autonomy of the constituent States.

See also AG ABIA STATE V. AG FEDERATION (No2) (supra) and AG LAGOS STATE V. AG FEDERATION (2004) 18 NWLR (PT 904) 1.

In the latter case, the Lagos State Government approached this Court in 2004 when, on the directives of President Olusegun Obasanjo, the share of the State’s Local Government Councils from the Federation Account, as envisaged under Section 162(5) of the 1999 Constitution, was withheld by the Federal Minister of Finance. The President’s directives then was sequel to the creation of additional 56 Local Development Areas as the State’s first step in creating additional Local Government Areas in Lagos State which President Obasanjo considered unconstitutional. Like President Muhammadu Buhari vis-a-vis his Executive Order 10 of 2020, President Obasanjo issued the directives to control the State’s money in his bid to enforce compliance with the Constitution. Uwais (CJN) in granting the claim of the Lagos State Government opined as follows:-

Next is the question whether the president of the Federal Republic of Nigeria was right to direct the Minister of Finance not to release statutory allocations from the Federation Account to the States which created new Local Government areas or held elections into the new Local Government councils or failed to maintain a special account called “State Joint Local Government Account” as provided by Section 162 Subsection (6) of the Constitution? It has been argued that the President by virtue of the ‘Oath of office,’ which he took in assumption of office, he is bound “to protect and defend the Constitution”. In addition, the “executive powers of the Federation”, is vested in the President by Section 5 Subsection (1) (a) of the Constitution and such powers extend to the execution and maintenance of the Constitution. This is certainly so, but the question is does such power extend to the President committing an illegality? Certainly, the Constitution does not and could not have intended that. (Underlining supplied for emphasis)

Kutigi JSC (of the blessed memory) concurred thus:-

If the President has any grievance against any tier of Government, he should go to Court. He cannot kill them by withholding their statutory allocations. That will be brutal indeed. (Underlining supplied for emphasis).

Uwaifo JSC added as follows:-

I do not think it is appropriate to brand the Federal Government or Mr. President as a trustee in relation to the constitutional powers conferred on and exercisable by them, and thereby introduce the element of personal judgment or discretion over a justiciable dispute that may arise between them and the States. The President exercises executive powers under the Constitution. They are, without dispute, awesome powers but even so they have known limits. The exercise of the powers is kept within bounds by the intervention of the rule of law. (underlining supplied for emphasis).

​On his part, Niki Tobi JSC (of the blessed memory) concurred thus:-

If the Federal Government felt aggrieved by Lagos State creating more Local Government, the best solution is to seek redress in the Court of law, without resorting to self help. In a society where the rule of law prevails, self help is not available to the Executive or any arm of Government in view of the fact that such a conduct could breed anarchy and totalitarianism and since anarchy and totalitarianism are antitheses to democracy, Courts operating the rule of law, the life-blood of democracy, are under a constitutional duty to stand against such action. The Courts are available to accommodate all sorts of grievances that are justifiable in law and Section 6 of the Constitution gives the Courts power to adjudicate on matters between two or more competing parties. In our democracy, all the Governments of this country as well as organizations and individuals must know the due process of the law and this they can vindicate by resorting to the Courts for redress in the event of any grievance. (Underlining supplied for emphasis).

My lords, certainly this country is still a Federation and the 1999 Constitution it operates is a federal one. The Constitution provides a clear division of powers between the Federal Government and the States’ Governments. The category of powers and roles either of the two enjoys is circumscribed. Neither of the two is at liberty to overstep the limits the Constitution prescribes for the other. If that occurs this Court remains in place to declare the act unconstitutional and void same.

The plaintiffs, by their second issue for the determination of their claim, urge us to view the Executive Order No 10 of 2020 issued by President Muhammadu Buhari as unconstitutional because in its issuance, the President has overstepped the limits the Constitution sets for him. And the country is run on the basis of rule of law rather than the personal dictates of the President. I entirely agree with them. For all the reasons so far adumbrated, I find the Order so, declare it void, and nullify same. In sum, the plaintiffs’ claim succeeds in part.

Parties are to bear their respective costs.

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SC.CV/655/2020