Supreme Court voids Buhari’s Executive Order 10, declares it illegal

The apex court, in a split decision by a seven-man panel, led by Justice Mohammed Dattijo, held that President Buhari acted beyond his statutory powers, stressing that the Executive Order 10, was inconsistent with the 1999 Constitution, as amended, and therefore unconstitutional, illegal, null and void.

The judgement followed a suit that was filed by 36 states of the federation.

While six Justices-Dattijo, Centus Chima Nweze, Hellen Ogunwumiju, Emmanuel Agim, Ejembi Eko and Adamu Jauro, upheld the suit, a member of the panel, Justice Uwani Abba-Aji, dismissed  it.

It will be recalled that 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, in compliance with section 121(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended).

However, in the suit marked SC/655/2020, which was filed on September 17, 2020, the 36 States, through their Attorneys-General, queried the legality of the Presidential Executive Order 10.

The plaintiffs posed two legal questions for the Supreme Court to determine, following which they asked for nine reliefs.

They 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.

The 36 states, which said they had been funding capital projects in the listed courts since 2009, prayed the Supreme Court to order the Federal Government to make a refund to them, a relief they apex court rejected yesterday.

The Attorney-General of the Federation was cited as the sole defendant in the matter.

In a lead judgement that was delivered by Justice Dattijo, the apex court, held that President 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.

“This country 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 Dattijo held.

However, in his dissenting verdict, Justice Abba-Aji maintained that the   Executive order was meant to grant fiscal autonomy to both the judiciary and the legislature at the state level. 

“We are not unaware of the hanky panky and subterfuge played by 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. The Executive Order  is to aide the states legislature and judiciary in curing the constitutional wrong of their financial autonomy which the states have always denied. This is not unconstitutional,” he held.

The states had in their statement of claim, averred that since May 5, 2009, 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 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.”

According to them, section 81(3) of the 1999 Constitution, made 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.

“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 stated.

Consequently, aside from urging the Supreme Court to quash the Executive Order 10, the Plaintiffs are also seeking an order to compel the Federal Government to henceforth, fund both capital and recurrent expenditures of the courts. 

While adopting their processes , counsel to the Plaintiffs, Augustine Alegeh, SAN, 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 charged and captured in the consolidated revenue fund, not in the budget.

He told the court that his clients have so far, expended about N66billion in the maintenance of state courts, even as he demanded for a refund.

On his part, counsel to the AGF, Mr. Tijjani Gazali, SAN, who is the Acting Director, Civil Appeals, Federal Ministry of Justice, challenged 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 told the apex court 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 cited as Respondents.

Meanwhile, four Senior Advocates of Nigeria, SANs; Adegboyega Awomolo, Olisa Agbakoba, 

Sebastian Hon, Mahmud Magaji and Musibau Adetunbi, had after the matter was called on Monday, announced their appearances as amicus curiae (friends of the court).

The Supreme Court had invited them to offer their legal opinion on the matter.

In his submission, the first amicus curiae, Awomolo, SAN, 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.

Awomolo argued that the FG is constitutionally mandated to take care of both capital and recurrent expenditures of all the courts established for the federation, i.e, both states and federal courts.

On his part, Agbakoba, SAN, maintained that both FG 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, Agbakoba, however, kicked against their request for a refund of about N66billion the plaintiffs claimed they have so far expended in running courts in their territories.

More so, Agbakoba, implored the apex court to restore section 162(9) of the Constitution which he said the court wrongly struck down in a suit involving the AG of Abia and the AGF.

Likewise, Hon, SAN, threw his weight behind the suit by the Plaintiffs and urged the apex court to strike down the Presidential Executive Order 10, 2020.

However, another amicus curiae, Magaji, SAN, said he disagreed with the plaintiffs that FG 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 FG’s shoulder.

Adetunbi, SAN, on his part, argued that while section 84(7) of the constitution, mandates FG to pay salaries and emoluments of state courts, he said the Plaintiffs are under section121(3), required to take care of capital expenditures of the courts.

He therefore urged the apex court to set aside the Presidential Executive Order 10, and dismiss all other reliefs the Plaintiffs are seeking in the suit.

The Attorney General of the Federation and Minister of Justice, Mr. Abubakar Malami, SAN, had explained that the President derived the power to issue the Executive Order from section 5 of the Constitution, insisting that granting fiscal autonomy to State Legislature and State Judiciary, would strengthen the institutions at the state tier of government and make them more independent and accountable in line with the tenets of democracy.

Malami said the Order, provides that: “The Accountant-General of the Federation shall by this Order and such any other Orders, Regulations or Guidelines as may be issued by the Attorney-General of the Federation and Minister of Justice, authorise the deduction from source in the course of Federation Accounts Allocation from the money allocated to any State of the Federation that fails to release allocation meant for the State Legislature and State Judiciary in line with the financial autonomy guaranteed by Section 121(3) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended)”.

He further disclosed that Article 6 (1) of the Order, further provides that: “Notwithstanding the provisions of this

Executive Order, in the first three years of its implementation, there shall be special extraordinary capital allocations for the Judiciary to undertake capital development of State Judiciary Complexes, High Court Complexes, Sharia Court of Appeal, Customary Court of Appeal and Court Complexes of other Courts befitting the status of a Courts”.