A.G. ABIA STATE & ORS v. A.G. OF THE FEDERATION

Judgment

MUSA DATTIJO MUHAMMAD, J.S.C. (Delivering the Leading Judgment): 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.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”> </br<>

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.

CHIMA CENTUS NWEZE, J.S.C.: My Lord, Musa Dattijo Muhammad, JSC, obliged me with the draft of the leading judgment delivered now. I agree with His Lordship’s reasoning and conclusion.

For the records, I entertain no doubts about the accuracy of the facts as restated in His Lordship’s judgment. I equally, endorse the reasoning and conclusion with regard to the Preliminary Objection.

These prefatory observations would therefore, obviate the need to make voluble comments on the facts of the case and the Preliminary Objection. I shall therefore go straight to my responses to the issues which the plaintiffs canvassed before this Court.

Two questions were put forward. The first question was framed thus: Having regard to the clear 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/or charged with the responsibility for funding all capital and recurrent expenditure of the High Court, Sharia Court of Appeal; Customary Court of Appeal, being Courts created under Section 6 of the Constitution? [Italics supplied for emphasis]

​Now, the case of the plaintiff is woven, inter alia, around Section 6 of the Constitution. In my humble view, therefore, the first question to be disposed of is the very fundamental one whether the said Section 6 has any relevance with the question of the funding of the Judiciary.

Section [Section 6 of the 1999 Constitution] provides, inter alia, as follows: 6. – (1) The judicial powers of the Federation shall be vested in the Courts to which this section relates, being Courts established for the Federation. (2) The judicial powers of a State shall be vested in the Courts to which this section relates, being Courts established, subject as provided by this Constitution, for a State.

Way back in 1983, in Bronik Motors Ltd. v Wema Bank Ltd [1983] 1 SCNLR 296, this Court had explained that the judicial powers given to the Courts in Section 6 of the 1979 Constitution (the equivalent of Section 6 of the 1999 Constitution) were not, in any way, intended to delimit the extent of Federal and State judicial powers but to define the nature of judicial power as authority for the determination of the rights of parties in all matters before the Courts, Owodunni v Registered Trustees, CCC [2000] 10 NWLR (pt 675) 315, 331, [Ogundare, JSC]; AG Federation v AG., Abia State and Ors. (2001) LPELR – 24862 (SC) 14-15; Labiyi v Anretiola and Ors (1992) LPELR – 1730 (SC) 20-23; Abacha v Federal Republic of Nigeria [2014] 6 NWLR (pt 1402) 43, 118.

The net effect is that reliance cannot be placed on Section 6 of the 1999 Constitution alone to determine the question whether it is the responsibility of the Federal or State Government to fund any Court. The relevance of Section 6 to this question is only that it creates superior Courts of record whose independence the Constitution seeks to protect through the mechanism of charging the emoluments and recurrent expenditure of the judges of the superior Courts mentioned in the section to the Consolidated Revenue Fund of the Federation.

​Writing against the background of the 1963 Constitution, Professor B. O. Nwabueze observed that part of the constitutional devices for the guarantee of independence of the judiciary includes the provision of the 1963 Constitution that salaries of superior Court judges shall be charged on the Consolidated Revenue Fund of the Federation or Region, as the case may be, which means that they were not subject to an annual vote by the legislature, B. O. Nwabueze, Constitutional Law of the Nigerian Republic, (London: Butterworths, 1964) 293. Writing on the same vein, the renowned scholar, S.

A. de Smith has this to say: Under all the Constitutions [of the new Commonwealth Countries] the salaries of Judges are a charge on the Consolidated Fund, so that they cannot become the subject of debate on the annual estimates; and it is further provided that a Judge’s salary and terms of office cannot be altered to his disadvantage during the tenure of his appointment. S. A. de Smith, The New Commonwealth and its Constitutions, (London: Stevens and Sons, 1964) 139. T. O.

Elias made the same point in different words without making reference to the charging of the emolument of Judges to the consolidated revenue fund. He observed that the independence of the judiciary as understood in common law countries is normally understood to imply the guarantee that the salary and emoluments of a High Court Judge may not be diminished in any form during his tenure of office. According to him, this means that although upward salary revisions may benefit a judge, any general cut does not affect his emoluments, however pressing the need might be, T.

O, Elias, The Judicial Process in the Newer Commonwealth, (Lagos: University of Lagos Press, 1970) 174. The 1999 Constitution of Nigeria, apart from keeping to this tradition, went further to include the recurrent expenditure of judicial offices as a charge on the Consolidated Revenue Fund of the Federation.

​The relevant provisions of the 1999 Constitution on this subject are as follows. 80. – (1) All revenues or other moneys raised or received by the Federation (not being revenues or other moneys payable under this Constitution or any Act of the National Assembly into any other public fund of the Federation established for a specific purpose) shall be paid into and form one Consolidated Revenue Fund of the Federation;

(2) No moneys shall be withdrawn from the Consolidated Revenue Fund of the Federation except to meet expenditure that is charged upon the fund by this Constitution or where the issue of those moneys has been authorised by an Appropriation Act, Supplementary Appropriation Act or an Act passed in pursuance of Section 81 of this Constitution; (3) No moneys shall be withdrawn from any public fund of the Federation, other than the Consolidated Revenue Fund of the Federation, unless the issue of those moneys has been authorised by an Act of the National Assembly;

(4) No moneys shall be withdrawn from the Consolidated Revenue Fund or any other public fund of the Federation, except in the manner prescribed by the National Assembly. 81. -(1) The President shall cause to be prepared and laid before each House of the National Assembly at any time in each financial year estimates of the revenues and expenditure of the Federation for the next following financial year;

(2) The heads of expenditure contained in the estimates (other than expenditure charged upon the Consolidated Revenue Fund of the Federation by this Constitution) shall be included in a bill, to be known as an Appropriation Bill, providing for the issue from the Consolidated Revenue Fund of the sums necessary to meet that expenditure and the appropriation of those sums for the purposes specified therein;

(3) Any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the Federation shall be paid directly to the said bodies National Judicial Council for disbursement to the heads of the Courts established for the Federation and States under Section 6 of this Constitution; 84. -(1) There shall be paid to the holders of the offices mentioned in this section such remuneration, salaries and allowances 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; (3) The remuneration and salaries payable to the holders of the said offices and their conditions of service, other than allowances, shall not be altered to their disadvantage after their appointment;

(4) The offices aforesaid are the offices of President, Vice- President, Chief Justice of Nigeria, Justice to the Supreme Court, President of the Court of Appeal, Justice of the Court of Appeal, Chief Judge of the Federal High Court, Judge of the Federal High Court, President of the National Industrial Court, Judge of the National Industrial Court, Chief Judge and Judge of the High Court of the Federal Capital Territory, Abuja, Chief Judge of a State, Judge of the High Court of a State, Grand Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja, President and Judge of the Customary Court of Appeal of the Federal Capital Territory, Abuja, Grand Kadi and Kadi of the Sharia Court of Appeal of a State, President and Judge of the Customary Court of Appeal of a State, the Auditor-General for the Federation and the Chairmen and members of the following executive bodies, namely, the Code of Conduct Bureau, the Federal Civil Service Commission, the Independent National Electoral Commission, the National Judicial Council, the Federal Judicial Service Commission, the Judicial Service Committee of the Federal Capital Territory, Abuja, the Federal Character Commission, the Code of Conduct Tribunal, the National Population Commission, the Revenue Mobilisation Allocation and Fiscal Commission, the Nigeria Police Council and the Police Service Commission. … (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 charged upon the Consolidated Revenue Fund of the Federation. (8) The recurrent expenditure of the Independent National Electoral Commission, in addition to salaries and allowances of the Chairman and members shall be a charge upon the Consolidated Revenue Fund of the Federation. [Italics supplied for emphasis] In effect, the 1999 Constitution, apart from charging the salaries and allowances of superior Court Judges on the Consolidated Revenue Fund of the Federation, included the recurrent expenditure of superior Court offices as a charge on the Consolidated Revenue Fund of the Federation.

Unarguably, the drafting of Section 84 (4) and (7) (supra) points to the fact that there is no basis whatsoever for any state capital charge on the Consolidated Revenue Fund of the Federation. Section 84 (7) (supra) remains a provision for “judicial offices of the Federation” and not of the states. In my humble view, the fact that the Federation and state judicial officers are expressly mentioned in Section 84 (4) is an indication that if the draftspersons so intended, they would have added the words “and of the states” under Section 84 (7).

As it is well-known, where a statute mentions specific things or specific persons, the intention is that those not mentioned are not intended to be included, Ogbunyiya v Okudo [1979] 6-7 SC 32; PDP v INEC[1999] 11 NWLR (pt 626) 200; FRN v Osahon and Ors (2006) LPELR – 3174 (SC) 80; B-D.

Traditionally, according to Professor Jadesola Akande, all moneys charged directly on the Consolidated Revenue Fund are not subject to annual debate in the National Assembly because once fixed they do not appear on the annual budget estimate presented in the Appropriation Bill because they are not subject to changes during the term of office of the incumbent office holder, see, J. O. Akande, Introduction to the Constitution of the Federal Republic of Nigeria, 1999 (Lagos: MIJ Professional Publishers Limited, 2000) 187.

Normally, it is such expenditures like the emolument of judges that are charged to the Consolidated Revenue Fund to ensure that their emoluments are not altered to their disadvantage. For instance, by Section 84 of the 1999 Constitution, the emolument of certain public officers at the Federal level are charged to the Consolidated Revenue Fund of the Federation. Similarly, the emoluments of certain public officers at the State level are charged to the Consolidated Revenue Funds of the States. This is the usual way of promoting the independence of such offices.

Accordingly, the capital budget of the legislature, the executive or the judiciary ought not to be charged to the Consolidated Revenue Fund, and the Constitution did not charge them to the Consolidated Revenue Fund. If they are charged to the Consolidated Revenue Fund, it means that they must be released whenever demanded, N. J.

Udombana, “Public Interest Consideration in Legislative Representation: Perspectives on the Nigerian National Assembly” (2016) 3 U.J.P.L.1 26-27. ​The implication of charging the entire budget of the organs of government to the Consolidated Revenue Fund is that the executive will lose control of management of the economy.

For instance, where there is a budget shortfall and the Government needs to cut down its budget, it cannot reduce the allocation even when their release will be at the expense of allocations to other critical sectors like education, health, payment of the emoluments of public servants etc. N. J. Udombana, “Public Interest Consideration in Legislative Representation: Perspectives on the Nigerian National Assembly” (supra). It is thus very clear that the 1999 Constitution never contemplated the charging of capital budgets to the Consolidated Revenue Fund.

Section 81 (3) cannot, by any stretch of the imagination, be interpreted to that effect. The section merely indicates who shall collect the money standing to the credit of the judiciary in the Consolidated Revenue Fund of the Federation. ​Furthermore, it must be borne in mind that the capital budget of a state judiciary goes beyond the capital budget for “state judicial officers” as it will include the budget for other state Courts like Magistrate, Customary or Sharia Courts which are outside the meaning of judicial officers pursuant to Sections 6 and 318 of the 1999 Constitution.

The power of appropriation for the capital budget of a state judiciary is vested in the State House of Assembly. Thus, Section 121 of the 1999 Constitution provides as follows: 121.

The Governor shall cause to be prepared and laid before the House of Assembly at any time before the commencement of each financial year estimates of the revenues and expenditure of the State for the next following financial year. (2) The heads of expenditure contained in the estimates, other than expenditure charged upon the Consolidated Revenue Fund of the State by this Constitution, shall be included in a bill, to be known as an Appropriation Bill, providing for the issue from the Consolidated Revenue Fund of the State of the sums necessary to meet that expenditure and the appropriation of those sums for the purposes specified therein. (3) Any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the State shall be paid directly to the heads of the Courts concerned.

Moreover, the NJC, as an executive body (though with judicial character), lacks the power of appropriation. The NJC is listed as one of the executive bodies by the 1999 Constitution. It will amount to grave transgression of the principles of separation of powers for the NJC to start appropriating fund for the capital budget of the judiciary. It will amount to usurpation of legislative power.

The fact that the legislature considers and approves the capital budget of the judiciary does not constitute violation of the principle of separation of powers, just as it does not constitute violation of the principle of separation of powers for the legislature to approve executive budget. The founding fathers of the American federation acknowledged that the judiciary has no power of appropriation.

Thus, Alexander Hamilton wrote: The judiciary is beyond comparison the weakest of the three departments of power… It has no influence over either the sword or the purse; no direction either of the strength or the wealth of the society; can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment. See, The Federalist, No. 78.

​By Section 2 (2) of the 1999 Constitution, Nigeria shall be a federation of States and a Federal Capital Territory. A necessary incident of federalism is the division of power between a central Government and regional (State) Governments. Apart from Section 6 (1) of the 1999 Constitution which vests the judicial power of the Federation in the Courts established for the federation, and Section 6 (2) which vests the judicial powers of a State in the Courts established for a state, Part I of Chapter VII of the Constitution is headed “Federal Courts” while Part II is headed “State Courts.” Prof.

Ben O. Nwabueze defined federalism as: …an arrangement whereby powers within a country are divided between a national countrywide 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 properties within its territorial areas, with a will of its own and its own apparatus for the conduct of its affairs, and with an authority on some matters exclusive of all others. See, B. O.

Nwabueze, The Presidential Constitution of Nigeria (London: C Hurst and Co, 1982) 37.

This Court has long recognized the autonomy of states in our federal system, AG, Bendel State v AG of the Federation [1983] NSCC 181, 192; AG Ogun State v AG Federation [1982] NSCC 1, 26, 33. Thus, neither the Federation nor the States could make laws imposing extra burden on each other. This must be so for the legislative power in a federalism usually involves the division and limitation of governmental power, AG, Bendel State v AG of the Federation (supra).

Notwithstanding the constitutional provision that Nigeria is a federation, the 1999 Constitution, in Section 153, established the NJC with certain powers. By Paragraph 21 of the Third Schedule to the 1999 Constitution, the powers of the NJC are as follows. 21.

The National Judicial Council shall have power to – (a) recommend to the President from among the list of persons submitted to it by- (i) the Federal Judicial Service Commission, persons for appointment to the offices of the Chief Justice of Nigeria, the Justices of the Supreme Court, the President and Justices of the Court of Appeal, the Chief Judge and Judges of the Federal High Court, and (ii) the Judicial Service Committee of the Federal Capital Territory, Abuja, persons for appointment to the offices of the Chief Judge and Judges of the High Court of the Federal Capital Territory, Abuja, the Grand Kadi and Kadis of the Sharia Court of Appeal of the Federal Capital Territory, Abuja and the President and Judges of the Customary Court of Appeal of the Federal Capital Territory, Abuja;

(b) recommend to the President the removal from office of the judicial officers specified in sub-paragraph (a) of this paragraph and to exercise disciplinary control over such officers; (c) recommend to the Governors from among the list of persons submitted to it by the State Judicial Service Commissions persons for appointments to the offices of the Chief Judges of the States and Judges of the High Courts of the States, the Grand Kadis and Kadis of the Sharia Courts of Appeal of the States and the Presidents and Judges of the Customary Courts of Appeal of the States;

(d) recommend to the Governors the removal from the office of the judicial officers in sub-paragraph (c) of this paragraph, and to exercise disciplinary control over such officers. (e) collect, control and disburse all moneys, capital and recurrent, for the judiciary; (f) advise the President and Governors or any matter pertaining to the judiciary as may be referred to the Council by the President or the Governors; (g) appoint, dismiss and exercise disciplinary control over members and staff of the Council; (h) control and disburse all monies, capital and recurrent;

for the services of the Council; and (i) deal with all other matters relating to broad issues of policy and administration.

Though the establishment of the NJC violates some basic principles of federalism, it was considered a necessity to promote and protect the independence of the judiciary, particularly at the state level. It must be noted that as a statutory body, the NJC cannot do anything at all unless authorized expressly or impliedly by the statute or instrument defining its powers, which is the 1999 Constitution of Nigeria, Nze v N.P.A. [1997] 11 NWLR (pt. 528) 210, 221. ​A pertinent question, therefore, is whether the NJC is empowered to consider and approve the capital budget of a State Judiciary.

The answer is, of course, in the negative. This must be so for the power to “(e) collect, control and disburse all moneys, capital and recurrent, for the judiciary” cannot, by any stretch of the imagination, amount to the power to consider and approve the capital budget of a state judiciary.

The doctrine of separation of powers is inchoate in the absence of the twin principle of checks and balances. A complete separation of powers, in the sense of a distribution of the three functions of government among three independent sets of organs with no overlapping or co-ordination, will be contrary to the objectives of separation of powers. What the doctrine seeks to achieve is the prevention of tyranny by not conferring too much power on anyone person or body, and the check of one power by another, See, O. H. Philips, et O.

Hood Philips’ Constitutional and Administrative Law (6th ed). (London: Sweet and Maxwell, 1978) 14. In essence, the concept of separation of powers is incomplete without the concept of checks and balances.

The latter supplements the former; both concepts constitute a dual principle, Any system of government based on the principle of separation of powers that fails to incorporate some elements of the twin principle of checks and balances will lack co-ordination of the three branches of government and risk the possibility of partial tyranny in the form of isolated legislative, executive or judicial abuse.

In the words of James Madison: Unless these departments of government be so far connected and blended as to give each a constitutional control over others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be maintained. See, The Federalist, No 48, 321 Similarly, M.J.C. Viles maintained that “the need for separating governmental powers by constitutional fiat comes from an assumption that if unrestrained by external checks, any given individual or groups of individuals would tyrannize over others,” see, M.J.C.

Viles, Constitutionalism and the Separation of Powers (London: Oxford University press, 1967) Montesquieu himself was not oblivious of this fact. He asserted that to prevent abuse of power, it is necessary that, by the nature of things, one power should check another. ​He is quite right. It is difficult, if not impracticable, for an individual, no matter how rich, powerful or influential, to constitute a check on a power of government. One power should rather be a counterpoise to other powers.

In other words, the theory of separation of powers never envisaged three autonomous governments or three autonomous branches of one government. What is envisaged is one government with three branches. The Constitution, specifically, assigned powers, duties and functions to each branch generally but also constitutes each branch a check on the other branches, AG Abia State v AG, Federation [2006] 16 NWLR (pt 1005) 265, 377; Aminu, Murtala, “Judicial Power and its Independence” in M. M.

Gidado, et al, (eds) Constitutional Essays in Honour of Bola Ige- Nigeria Beyond 1999: Stabilizing the Polity through Constitutional Re-Engineering (Enugu: Chenglo Limited, 2004) 111, 114. Consequently, in strict constitutional parlance, judicial autonomy as canvassed by the plaintiffs, is antithetical to the concept of separation of powers and checks and balances. In the Nigerian context, the autonomy of the judiciary, in the plaintiff’s contemplation, would be a synonym for vesting of legislative and executive powers on the judiciary with the potentiality of abuses.

In my humble view, therefore, the plaintiffs’ reliefs 1, 2, 3, 4, 5, 6, 7 and 8 have not been made out. They cannot, therefore, be granted, I, entirely, agree with the leading judgement that the Presidential Executive Order, ‘in particular, paragraphs 2 -7 are ultra vires the President. They are therefore, void. I so declare. Accordingly, I hereby, enter an order dismissing the plaintiffs’ issues as shown above, Relief 9 succeeds. I must thank all counsel, particularly, the amici curiae, for the exceptional industry they put in the preparation of their briefs.

EJEMBI EKO, J.S.C.: The plaintiff States by Originating Summons, have commenced this suit against the Defendant invoking the Original jurisdiction of this Court under Section 232 of the 1999 Constitution, as amended.

The summary of their cause of action is that they have been expending funds undertaking the capital projects on the superior Courts of record; namely the High Court, the Sharia Court of Appeal and the Customary Court of Appeal being Courts established “for” the States by the Constitution; whereas the capital and recurrent expenditure of those Courts are, or should have been, a charge on the Consolidated Revenue Fund of the Federation. They aver inter alia: 2.

The express provisions of Section 81(3), Paragraph 21(e) of the Third Schedule Part I and Section 121 (3) of the Constitution of the Federal Republic of Nigeria 1999 (as altered), make the funding of all capital and recurrent expenditure of the High Courts, the Sharia Courts of Appeal, the Customary Courts of Appeal of the States the responsibility of the Federal Government through appropriation from the Consolidated Revenue Fund of the Federation through the National Judicial Council being Courts specified under Section 6 (5) of the Constitution. 3.

The Defendant since, May 1999 has been funding the “capital and recurrent expenditure” of the “Federal Government Courts” whereas the Defendant has been in partial obedience to the Constitution, by payment of recurrent expenditure of the Superior Courts in the States of the Federation, by paying only the salaries of judicial officers. 4.

The Plaintiffs claim that they have been paying the capital and other recurrent expenses of judicial officers of the Federation as explained in Section 6 (5) of the Constitution and the expenditures of the respective States are highlighted in the attached Schedules to the further affidavit.

Consequent upon the above, the Plaintiffs seek the following reliefs: 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 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 Courts 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 of 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 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 States 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 plaintiff 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 CRFN, 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”.

The plaintiffs have formulated the following two issues for the determination of this suit. 1.

“having regard 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, Sharia Courts of Appeal and Customary Courts of Appeal of States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN”. 2.

“considering the provisions of Sections 60, 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 Courts of Appeal in violation of the constitutional provisions vesting responsibility for funding the said Courts on the Federal Government if not unconstitutional and unlawful”.

The Defendant, through Abubakar Malami, SAN- the Honourable, the Attorney General of the Federation, has raised Preliminary Objection to the hearing and determination of the suit, brought under the Originating Summons procedure on the following four (4) grounds, that is that – 1. the Plaintiffs’ suit constitutes a breach of the doctrine of Res judicata (i.e estoppel per rem judicatam); 2. the Plaintiffs’ suit constitutes a breach of the doctrine of issue estoppel; 3. the Plaintiffs’ cannot relitigate issues and facts upon which the Federal High Court has made final findings in its judgment, and 4. the judgment of the Federal High Court is still valid and substituting.

​Much as the Hon. the Attorney-General of the Federation, gave further Notice in the Notice of Preliminary Objection that “the Defendant/Applicant shall, while arguing this Preliminary Objection, rely on all Court processes as filed in this suit by the Plaintiffs and the judgment of the Federal High Court in the previous suit”, the Notice of Preliminary Objection is substantially or in some fundamental respects deficient and uncertain.

The particulars of the suit and the allegedly “still valid and subsisting” final judgment of the Federal High Court therein in which the said Court “made final findings in its judgment” on which the Defendant predicates this Preliminary Objection- that the Plaintiffs are now, on the doctrine of “estoppel per rem judicatam” or issue estoppel, estopped from relitigating same, are not stated or given.

Order 3 Rule 1 of the extant Rules of this Court empowers this Court, in the exercise of its Original Jurisdiction, to have recourse to the rules of “the practice and procedure for the time being observed in the Federal High Court”. The Defendant has apparently brought the Notice of Preliminary Objection under or pursuant to Order 16 Rules 2 & 3 of the Federal High Court (Civil Procedure) Rules, 2009.

The very essence of pleadings, whether in civil or criminal proceedings, is audi alteram partem (to give notice to the other party of the matter one seeks determination of his civil rights or obligations against his adversary – Section 36(1) of the Constitution), Fidelis Nwadialo: Civil Procedure In Nigeria – 2nd Ed., at pages 303 – 312, gives four functions of pleadings thus – i. Pleadings define with clarity and precision the issue or questions which are in dispute between the parties and fall to be decided by the Court.

“Issues are decided by and in pleadings and pleadings deal mainly with facts”: OLUFOSOYE v. OLORUNFEMI (1989) 1 NSCC 21 at 28. ii. By means of pleadings each party is required to give fair and proper notice to his opponent of the case he has to meet to enable him to frame and prepare his own case for the trial: GEORGE & ORS. v. DOMINION FLOUR MILLS LTD (1963) 1 ALL NLR 71; A.G, ANAMBRA STATE v. ONUSELOGU ENT. LTD. (1987) 4 NWLR (pt. 66) 547 (SC). iii.

Pleadings inform the Court what the precise matters in issue between the parties are; which matters alone the Court may determine since they set the limits of the action: OKE-BOLA & ORS. v. MOLAKE (1975) SC 61 at 62; AFRICAN CONTINENTAL SEAWAYS LTD. v. NIG. DREDGING ROADS & GENERAL WORKS LTD. (1977) 5 SC 235 at 248. iv. Pleadings constitute permanent records of the issues and questions raised in the action and decided therein so as to prevent future litigation upon matters already adjudicated upon between the parties and their privies: HOYSTEAD v. COMMISSION OF TAXATION (1926) AC 125.

This function of pleadings is very material in the consideration of the plead of res judicata- the principle that public interest or policy requires that there must be an end to litigation.

By the foregoing functions of pleadings, the instant Notice of Preliminary Objection is fundamentally deficient and defective for want of particulars or certainty. What suit, the decision of which, as has herein been pleaded constitutes estoppel per rem judicatam or issue estoppel, is one or a matter of facts to be pleaded. These material facts are not pleaded by the Defendant in the purported Notice of Preliminary Objection. Pleadings and their proof are two different things.

The defendant, who pleads special defence premised on previous decision constituting a fact estopping the Plaintiff from relitigating the facts and issues previously decided, has a duty to “plead specifically” such matter or fact with particulars: Order 13, Rules 3, 4 & 6(1) Federal High Court (Civil Procedure) Rules, 2009.

The Defendants’ Affidavit in support of (the) Notice of Preliminary Objection avers that the previous suit No. FHC/ABJ/CS/667 (2013 – decided on 13th January, 2014 between the Judiciary Staff Union of Nigeria (JUSUN) v.

NATIONAL JUDICIAL COUNCIL (NJC) & 73 others (including the present Plaintiffs) “relates to the funding of the Judiciary at the Federal and State levels”; that JUSUN in the said suit sought the interpretation of Sections 81 and 221 (sic: 121) of the Constitution, and that it was the decision in that suit (Exhibit HAGF 1) that prompted the issuance by the President of the Federal Republic of Nigeria “of the Executive Order 10”.

The JUSUN, from the pleadings in the suit Nor FHC/ABJ/CS/667/2013 (Exhibit AGF.I), had sought against the defendants therein (including all the plaintiffs herein) the questions- 1. Whether, by Sections 81(3), 121(3) & 162(9) of the Constitution, funds/amount standing to the credit of the Judiciary in the Federation Account/the Consolidated Revenue Funds of the Federation and the States shall not be paid directly to the Heads of Court concern? 2.

Whether having regards to Sections 81(3) and 121(3) of the Constitution; whether it is right that funds standing to the credit of the Judiciary should be paid piecemeal at the whims and caprices of the Governors of the States? 3. Whether the Defendants’ failure to ensure transparency in annual budgeting, monitoring and budget implementation does not amount to breach of the Fiscal Responsibility Act, 2007 cum States’ relevant Fiscal Responsibility Laws?

​Substantially, therefore, the JUSUN suit (Exhibit HAGF.1) was directed towards ensuring direct and wholesome disbursement of funds standing to the credit of the Judiciary directly to the Heads of Federal and State Courts; and that there be transparency in budgeting and budget implementation in line with the provisions of the Fiscal Responsibility Act, 2007. It sought to enforce judicial autonomy and the Federal High Court agreed and affirmed the judicial autonomy.

The substance of the instant suit is that the Plaintiffs (who were among the defendants in the JUSUN suit Exhibit HAGF.1) and against whom the burden of funding the Judiciary in their respective States has been cast in the Executive Order 00-10 do now seek a determination against the Federal Government of Nigeria, the defendant, that- 1.

By Sections 6, 81(3) of the Constitution, read with Item 21(e) in Part 1 of the Third Schedule to the Constitution, that the Federal Government, and not the States, has the constitutional burden of funding all the capital and recurrent budgets of the superior Courts of record established for the States i.e – the High Court, the Sharia Court of Appeal and the Customary Court of Appeal (i.e the Section 6 Courts); and 2.

In view of Sections 6, 80, 81, 120 and 121 of the Constitution the Presidential Executive Order – 00- 10 of 2020, which directed the States plaintiffs to fund the capital and recurrent budgets of State High Court, sharia of Appeal and Customary Court of Appeal (i.e the State’s Section 6 superior Courts of record), is unconstitutional.

​Clearly, and without much ado, the issues in the instant suit (SC/CV/655/2020) and the previous suit- FHC/ABJ/CS/667/2013 (Exhibit HAGF 1) are not identical in substance nor as to the parties and/or their privies. In the circumstance no question of issue estoppel or estoppel per rem judicatam avails the defendant to sustain the Preliminary Objection; even assuming (and I seriously doubt) the Notice of Preliminary Objection had been properly raised in accordance with the due process of law.

Suffice I mention in passing that this Notice of Preliminary Objection shall only be competent for this Court to entertain if it had been brought and raised, among other things, in accordance with the due process of law for initiating it: MADUKOLU v. NKEMDILIM (1962) 2 NSCC 374; (1962) 2 SCNLR 341. The Preliminary Objection, in the circumstance, is a non-starter. It cannot fly.

Now the merits of the suit. The five (5) provisions at the heart of the Plaintiffs’ Originating Summons are Sections 6, 80, 81(3), 120 and 121 of the Constitution as well as Item 20(e) of Part 1 of the Third Schedule thereto. Curiously, all these provisions, except Sections 80 & 120, were among the Provisions of the Constitution that were subject of the 2010 and 2017 alterations to the Constitution.

The presumption is that the lawmaker knows the state of the law existing at the time or immediately before the amendment before his embarking or proceeding on effecting alterations or amendment to the body of the statute or Constitution. The lawmaker while enacting or amending a provision(s) has in mind the legislative intent or purpose he intends to achieve thereby.

It is, for this reason, the Courts, particularly this Court, insist on, and it is part of the canons of interpretation, that Courts, when interpreting the Constitution, should give it a broad and liberal construction that will promote its purpose, and particularly insisting on the construction that would promote good government and the people’s welfare, as opposed to a narrow and conservative construction that defeats that primary purpose: RABIU v. KANO STATE (1980) 8 -11 SC 130; ONYEMA v. OPUTA (1987) 6 SC 362 at 371. This has been my stance as can be seen in ABIODUN v.

FRN (2018) 11 NWLR (pt. 1629) 86 (SC) at 109A; ONTARIO OIL & GAS LTD v. FRN (2018) 13 NWLR (pt. 1636) 197 (SC) at 227. Hitherto now (or may be the 2010 and 2017 alterations to the Constitution) the Executive, being so dominant, had made the other vital arms and organs of government believe that they existed at the mercy of the Executive arm. The Judiciary and the Legislature did not seem to have any scintilla of any real or actual independence and autonomy particularly in terms of budgetary independence and autonomy for each of them to attain their optimal ends.

An executive body like the Independent National Electoral Commission (INEC), chartered by the Constitution to “organize, undertake and supervise all elections” freely and independent of any other person, authority or arm of government, did not enjoy financial autonomy. The situation was akin to the Judiciary, Legislature and INEC living in Mr. Bumble’s welfare workhouse where Oliver Twist’s asking for the minimum for the existential of himself or the other inmates was considered a culpable offence: Courtesy – Charles Dickens: OLIVER TWIST.

This factual situation where the Judiciary must go cap-in-hand to demand for disbursement of their budgetary allocations and getting just a mere pittance out of it, at the grace, whims and caprices the Executive Arm was what prompted the suit: FHC/ABJ/CS/667/2013: JUDICIARY STAFF UNION OF NIGERIA (JUSUN) v. THE NATIONAL JUDICIAL COUNCIL & OTHERS (including the 36 Governors and the States Attorneys-General).

The Defendant seems to concede that the Presidency’s concern about the existing sorry state of affairs as regards the finances of the Judiciary, Legislature et. al. was what informed and “prompted the issuance of the Executive Order 10 by the President, Federal Republic of Nigeria”. This long prefactory detour seeks to demonstrate the existing state of affairs regarding the capital and recurrent budgets of the Judiciary when the 2010 and 2017 were effected the constitution. That is the mischief addressed by the Constitution, particularly via the 2010 and 2017 alterations to thereto.

​Mr. S. T. Hon, SAN, one of the amici curiae, is correct therefore, when he stated in his brief that the enactment of the provisions of the Constitution, the subject of this suit had “sought to do away with the practice of the State Governors holding the so called State Courts to ransom, thereby trampling on the rule of law and the independence of the Judiciary”, and that in this case, this Court should affirm the Originating Summons in order to affirm the Independence of the Judiciary.

The mischief rule links very well with the intention of lawmaker in enacting the current provision of the law being considered.

Finding the mischief invariably leads to finding the legislative intent. In ATTORNEY-GENERAL OF LAGOS STATE v. ATTORNEY-GENERAL OF THE FEDERATION (2014) 9 NWLR (pt. 1412) 217 (SC) at 320F this Court stated thus- I need to emphasise that in interpreting the provisions of statute or even the Constitution, the historical antecedents of such provision could be of help in order to bring out the real intendment of the law or the maker or framers of the constitution.

Using the historical antecedents as a veritable tool to identifying the legislative intent for enacting a particular statute or effecting an amendment to an existing law or provisions has existing precedents in this Court as can be seen from, just a few: INEC V. ASUQUO (2018) 9 NWLR (pt. 1624) 305 at 327; LAU v. PDP (2018) 4 NWLR (pt. 1608) 60 at 123; UGWU v. ARARUME (2007) ALL FWLR (pt. 377) 807 at 854 – 855; FIDELITY BANK PLC. v. MONYE (2012) ALL FWLR (pt. 631) 1412 at 1438; INEC v. YUSUF (2020) 4 NWLR (pt. 1714) 374 at 411.

The pertinent question, in the mischief Rule, is: what is the bad practice that the provision or the amendment has sought to do away with? I had earlier found and stated that apart from Sections 80 & 120, all the provisions of the Constitution, the subject of the Originating Summons, have been materially altered by the 2010 and 2017 Alterations to the Constitution. Clearly, in my firm view when these provisions are read together with other relevant and material provisions of the Constitution, as altered; there is only refrain: the things we used to do, we do them no more.

I agree with the amici curiae (except Mahmud A. Magaji, SAN & Musibau Adetunbi, SAN), that the apparent mischief cured by the framers of the 1999 Constitution was the need to remove the Courts at the State level from asphyxiating grip of the State Governors and State Houses of Assembly. The greater mischief was the need to improve – justice delivery at the “grassroots” level, with a serious eye to upholding the rule of law – for the overall benefit of maintaining and sustaining Nigeria’s tottering democracy.

I will now consider the provisions of the Sections of the Constitution that this suit relates. Section 6 makes reference to two sets of Courts, namely the Courts directly established under the section and expressly mentioned in Subsection (5) (a) to (i) thereof and specifically stated to “be the only superior Courts of record in Nigeria”, and those such other Courts “with subordinate jurisdiction to that of a High Court” which, in Subsection (4) of Section 6 of the Constitution, the National Assembly or any House of Assembly may establish.

Section 6 (1) of the Constitution vests judicial powers of the Federation in the Supreme Court of Nigeria, the Court of Appeal, Federal High Court and National Industrial Court, as superior Courts of record established for the Federation: Section 6(5) (a) to (c). Section 6(2), (3) & (5) (e), (g) & (i) of the Constitution provide that the judicial powers of the State shall be vested in the High Court of a State, the Sharia Court of Appeal of a State and the Customary Court of Appeal of the State “being Courts established for the State”.

Between Section 6(1) & (2) the operative word is “FOR” before either the Federation or the State.

I agree with Chief Awomolo, SAN, amicus curiae, that there is the distinction between the “Federation” and the “Federal Government of Nigeria” as defined by Section 318 of the Constitution, providing that “the Federation” means the Federal Republic of Nigeria that is the Government of the Federation”. The Federation, meaning the Federal Republic means more than the Federal Government of Nigeria. It includes the States and the Local Governments as well.

The Courts established FOR the Federation and for the State by Section 6(1) & (2) of the Constitution, which Courts are specifically stated in Section 6(3) thereof to “be the only superior Courts of record in Nigeria” – and are vested with “all the powers of a superior Courts of record in Nigeria”, emphatically listed in Section 6(5) (a) to (i) of the Constitution.

Though, it is clear from Section 6(4)(a) of the Constitution that the National Assembly or any House of Assembly (of a State) are empowered to establish any Court other than those established by the Constitution (Section 6(1), (2) & (5) (a) to (i)]; the same provision makes it clear that those Courts shall have “subordinate jurisdiction to that of a High Court”. Only three High Courts are established by Section 6 of the Constitution. That is Federal High Court, the High Court of the Federal Capital Territory, Abuja and “a High Court of a State” – Section 6(1), (2) & (5) (c), (d) & (e).

I make bold therefore to state that the superior Courts in Nigeria expressly established by the Constitution (Section 6 thereof) are also the Courts established for the Federation and for the States. The other Courts with subordinate jurisdiction to that of a High Court which the National Assembly or the House of Assembly of a State may establish by an Act or Law do not belong to the genre of the superior Courts of law in Nigeria established by the Constitution under Section 6 thereof. They are inferior Courts of record with jurisdiction subordinate that of a High Court.

The crux of this Originating Summons is: how the superior Courts of records in Nigeria established by the Constitution, in Section 6 thereof, for the Federation and for the States are to be funded under the Constitution? Chapter V. E- Powers and Control Over Public Funds, in the Constitution has a total of 10 Sections, namely: 80, 81, 82, 83, 84, 85, 86, 87, 88 & 89.

Section 80 of the Constitution, establishing the Consolidated Revenue Fund of the Federation, provides- 80.(1) All revenues or other moneys raised or received by the Federation (not being revenues or other moneys payable under this Constitution or any Act of the National Assembly into any other public fund of the Federation established for a specific purpose) shall be paid into and form one Consolidated Revenue Fund of the Federation. (2) No moneys shall be withdrawn from the Consolidated Revenue Fund of the Federation except to meet expenditure that is charged upon the fund by this Constitution or where the issue of those moneys has been authorised by an Appropriation Act or an Act passed in pursuance of Section 81 of this Constitution. (3) No moneys shall be withdrawn from any public fund of the Federation other than the Consolidated Revenue Fund of the Federation unless the issue of those moneys has been authorised by an Act of the National Assembly. (4) No money shall be withdrawn from the Consolidated Revenue Fund or any other public Fund of the Federation, except in the manner prescribed by the National Assembly. ​The Consolidated Revenue Fund of the Federation does not necessarily belong only or exclusively to the Federal Government but to the entire Federation.

Section 81(1) & (2) of the Constitution make it imperative that the President of the Federal Republic of Nigeria “shall cause to be prepared and laid before each House of the National Assembly- estimates of the revenues and expenditure of the Federation for the next following year”. It does appear, from Section 81(2) of the Constitution that expenditure charged directly on the Consolidated Revenue Fund of the Federation by the Constitution is not expected to be included by the President in the Appropriation Bill he presents to the National Assembly.

It is clear and explicit, from Section 81(3) that the amount standing to the credit of the Judiciary is a charge on the Consolidated Revenue Fund of the Federation. Sub-Sections (2) & (3) of Section 81 of the Constitution provide –

81.(2) The heads of expenditure contained in the estimates (other than expenditure charged upon the Consolidated Revenue Fund of the Federation by this Constitution) shall be included in a bill, to be known as an Appropriation Bill, providing for the issue from the Consolidated Revenue Fund of the sums necessary to meet that expenditure and the appropriation of those sums for the purpose specified therein. (3) The amount standing to the credit of the – (a) Independent National Electoral (b) National Assembly, and (c) Judiciary in the Consolidated Revenue Fund of the Federation shall be paid directly to the said bodies respectively; in the case of the Judiciary, such amount shall be paid to the National Judicial Council for disbursement to the heads of the Courts established for the Federation and the States under Section 6 of this Constitution.

The Judiciary, in the context of Section 81(3) of the Constitution, in my firm view means “the Courts established for the Federation and the States under Section 6 of this Constitution”. That is, only the superior Courts of record in Nigeria. It does not include Courts “with subordinate jurisdiction to that of a High Court” within the context of Section 6(4)(a) of the Constitution.

This category of Courts, in the State Judiciary: while their expenditure or “the amount standing to (their) credit” or expenditure in relation to them is not a charge on the Consolidated Revenue Fund of the Federation, under Section 81(3) of the Constitution; their expenditure, under Section 121(2) of the Constitution is a charge on the Consolidated Revenue Fund of the State established under Section 120(1) of the same Constitution.

And by dint of Section 121(3) thereof any amount standing to the credit of the State Judiciary in relation to the inferior Courts of record in the Consolidated Revenue Fund of the State shall be paid directly to the heads of the Courts concerned. The fact that, at the State level the amount standing to the credit of the judiciary is charged, under Section 121 (2) of the Constitution, on the Consolidated Refund of the State, further demonstrates the intent or purpose of the Constitution to provide assurance for judicial autonomy.

Section 81 of the Constitution does not intend the Judiciary to be treated differently from the National Assembly and Independent National Electoral Commission as regards their capital expenditure. Neither the terms “expenditure” nor “the amount standing to the credit of the judiciary” are defined by the Constitution to be Capital or Recurrent, or both. Loosely, expenditure is “the act or process of paying out; disbursement; a sum paid out”: Blacks Law Dictionary 9th Ed., page 658.

Accordingly, and in my firm view the terms expenditure (Section 81 [2)) or “the amount standing to the credit of the- judiciary” (Section 81 [3]) should, and they, include both capital and recurrent expenditure of the judiciary. ​Section 84(2), (4) & (7) of the Constitution specifically address the recurrent expenditure of the judiciary, as the provisions deal with the remuneration, salaries and allowances of judicial officers (corresponding with justices and judges of the Courts established for the Federation and the States under Section 6 of the Constitution).

Section 84(2) provides that “the remuneration, salaries and allowances payable to the holders of the offices (including judicial officers listed in Section 84 (4)) shall be a charge on the Consolidated Revenue Fund of the Federation”, in further consolidation or re-affirmation of Section 84(2); Subsection (7) of Section 84 provides- 84.(7) The recurrent expenditure of judicial offices of 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 Federation in the context of Section 84(7) of, as in the entire Constitution, is inclusive of all the tiers of government in the Federal Republic of Nigeria. The objective and purpose of Section 84(2) and (7) of the Constitution are the assurance of independence and autonomy of judicial officers manning the Superior Courts Listed in Section 6(5) of the Constitution.

The Pension Rights of Judges Act, as amended in 2016 defines a “judicial officer” to include all judges of the State High Court, Sharia Court of Appeal and the Customary Court of Appeal to accord with Section 6(3) & (5) of the Constitution. The Act makes pension rights of this category of judicial officers statutory. Ordinarily, “remuneration, salaries” in the context of Section 84 of the Constitution are agreed rewards or compensation for work done by an employee. Gratuity is the money paid to an employee when he leaves, or retires from, service.

Pension on the other hand, is the amount of money paid regularly to somebody upon his retirement. Pension rights of judicial officers, being now, statutory form part of the judicial officers’ conditions of service. Remuneration, from its ordinary dictionary meaning, includes salary, pension and gratuity. The Pension Rights of Judicial Officers Act has reinforced this notion and given it a boost.

Therefore, when the Constitution in Section 84 thereof, provides that the remuneration and salaries of Judges of Superior Courts of record (the Section 6(5) Courts under the Constitution) shall be a charge on the Consolidated Revenue Fund of the Federation; the purpose and intent of this provision of the Constitution are that the remuneration and salaries, including pensions and gratuity of all judicial officers holding offices in the Superior Courts of record in the Federation shall be borne, as a charge on, by the Consolidated Revenue Fund of the Federation.

What I am saying, for the purpose of this suit, is: the remuneration, salaries and allowances (including pensions and gratuity), being recurrent expenditure payable to the holders of the judicial offices mentioned in Sections 6(3) & (5) and 84(4) of the Constitution “shall be a charge on the Consolidated Revenue Fund of the Federation,” and not on the Consolidated Revenue Fund of the State (particularly as regards the holders of judicial offices in the High Court, Sharia Court of Appeal and the Customary Court of Appeal established for the States by Section 6(3) of the Constitution).

The State Plaintiffs are therefore right in their insistence and claim that the recurrent expenditure of the holders of the judicial offices in the High Court, Sharia Court of Appeal and the Customary Court of Appeal established by Section 6(3) & (5) of the Constitution, for the State shall be a charge on the Consolidated Revenue Fund of the Federation.

Upon reading Item 21(e) of the Third Schedule to the Constitution together with Sections 6 & 81(3) of the same, I entertain no doubt whatever that the capital and recurrent expenditure, as they relate to the superior Courts of record in Nigeria, established under Section 6 of the Constitution, remain a charge on the Consolidated Fund of the Federation. I reject the Defendant’s position or submission to the contrary. The decision of this Court interpreting Section 121(2) & (3) of the Constitution, in A.G. FEDERATION v.

A.G., ABIA STATE & ORS. (2002) 6 NWLR (pt. 764) 542, followed by OLISA AGBAKOBA v. A.G. EKITI STATE & No. NAD/56/2013; OLISA AGBAKOBA v. FGN & ORS. No. FHC/ABJ/CS/63/2013, sets the template for the construction I have adopted in relation to 81(2) & (3) of the Constitution since Sections 121(2) & (2) and 81(2) & (3) of the Constitution are in pari materia. In A.G. FEDERATION v. A.G.

ABIA STATE (supra), this Court stated that – It is clear from the phrase “other than expenditure charged upon the Consolidated Revenue Fund of the State by this Constitution” in Section 121(2) that expenditure charged upon the Consolidated Revenue Fund of the State is exempted from the Executive Appropriation Bill which is laid before the House of Assembly by the Governor.

It should be emphasised too that the words “paid directly to the Heads of Court” in Section 121(3) imply a payment system outside the Appropriation Bill. (Emphasis supplied) And of course, clearly a payment system not governed by the whims and caprices of the Governor or the President. Part of the functions of the National Judicial Council, under the Constitution (Item 21(e) of Part 1 of the Third Schedule) is to “collect, control and disburse all moneys, capital and recurrent, for the Judiciary.

All moneys- for the judiciary, include the heads of expenditure of the judiciary charged upon the Consolidated Revenue Fund of the Federation and amount standing to the credit of the judiciary which Section 81(3) directs “shall be paid to the National Judicial Council for disbursement to the heads of Courts established for the Federation and the States under Section 6 of (the) Constitution”.

The use of the word “control”, in particular, implies that the power/function of the NJC, as regards the budget and budgetary proposals of the Judiciary, is the authority charged with the task of holding the bridle, check, determination, superintendency and supervision for the purpose of the phrase “the amount standing to the credit” which other provisions direct that the amount shall be paid directly to the NJC for disbursement to the Heads of Courts. ​The Constitution, speaking for itself and to all persons and authorities, declares that it “is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria” – Section 1 (1).

In its emphatic declaration in Section 1(2) thereof, the Constitution provides, inter alia, that the Federal Republic of Nigeria or any part thereof shall not be governed, except in accordance with its provisions. This seems to provide the apt answer to the submission of Mahmud A.

Magaji, SAN, Amicus Curiae, – That the framers of the Constitution, having mentioned that the funding of capital as well as recurrent expenditure of the superior Courts of the States, as created by Sections 6 (2), (5) (e), (g) and (i), 270 (1), 275 (1) and 280(1) of the Constitution; even when they had the opportunity of so doing, has shown their intention that the principles of Federalism on which the Constitution was anchored should be maintained in this regard. The learned senior Counsel placed so much reliance on ELELU-HABEEB v. A. G.

FEDERATION (2012) 13 NWLR (Pt. 1318) 423, which I am certain, was either cited in error or read out of context. This Court in the said ELELU-HABEEB v. A.G, FEDERATION (supra) did state, without ambiguity, inter alia “that a constitutional provision should not be construed in such a way as not to defeat its evident purpose”.

The evident purpose of Sections 6, 81 (2) & (3), 84 (2), (3) & (7) of the Constitution read together with Item 21(e) of Part 1 of the Third Schedule thereto is judicial independence and autonomy in respect of which it is provided, therefore, that the expenditure, capital and recurrent, of the Courts of the superior record in Nigeria, being Courts established under Section 6 of the Constitution, shall be a charge upon the Consolidated Revenue Fund of the Federation.

This the empirical constitutional provision stating the intent and purpose notwithstanding the option in Sections 6(4)(b), 275 (1) and 280(1) the same Constitution has given to “any State, that requires it” to establish the Sharia Court of Appeal or the Customary Court of Appeal. ​The Nigerian Constitution does not pretend to enthrone and operate the ideal federalism. The Nigerian Federalism, under the extant Constitution, is peculiar to Nigeria and Nigerians just as the Constitution itself is.

We seem to be operating a pseudo Federalism in the garb of the Unitarianism that suited the Military Junta that midwived the constitution for the purpose. One of the canons of interpretation is the one postulating that the constitution must not be given an interpretation that will lead to unreasonable and inconvenient results (ONYEMA v. OPUTA [supra]).

There are other rules of interpretation that enjoin the Court not to construe any provision(s) of the constitution or statute by placing a gloss on it; that a judicial interpretation must construe a provision to save it and thereby avoid making non-sense of the statute so as not to defeat the manifest purpose and intention of the law maker: NABHAN v. NABHAN (1967) 1 ANLR 47; ELABANJO & ANOR v. DAWODU (2006) 6 – 7 SC 24. The Nigerian Constitution, like any other statute, must not be construed to mean what it does not actually mean; or not to mean what it explicitly means.

Doing so smacks of judicial rascality and a complete abdication or renunciation of both the judicial responsibility and judicial oath of the judicial officer. ​The totality of all I have been labouring to say, about the aforementioned provisions of the Constitution, particularly Sections 6, 80, 81(1) and (3), 84 (2), (3) & (7) thereof read together with Item 21(e) of Part 1 of the Third Schedule to the Constitution, is that the expenditures, capital and recurrent, of the superior Courts in Nigeria established by Section 6 of the Constitution remain the burden and charge on the Consolidated Revenue Fund of the Federation, and not on the budgets or the Consolidated Revenue Fund of the State.

It is only, as regards the expenditure, capital and recurrent of the Courts the jurisdiction of which are subordinate to that of the High Court by dint of Sections 120 & 121(2) & (3) of the Constitution that the burden is upon the Consolidated Revenue Fund of the State.

The President, purporting to be enforcing, as it is mandatory on him to under Section 287 of the Constitution (he being one of the persons and authorities therein obligated), the judgment of the Federal High Court in the suit No. FHC/ABJ/CS/667/2013 (Exhibit HAGF. 1) between JUSUN v. NATIONAL JUDICIAL COUNCIL & ORS and FHC/ABJ/CS/63/2013 Between OLISA AGBAKOBA v.

FG & ORS (Exhibit HAGF. 1) had come up magisterially, promulgating the Executive Order 00- 10 of 2020 providing inter alia: 1.(b) The Accountant General of the Federation shall by this Order and such 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 of House of Assembly of the State and the judiciary guaranteed by Section 121(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended) 7.(b) To the extent as may be permitted by law, the Accountant-General of the Federation shall take appropriate steps to ensure compliance with the provisions of this Order and implementation of the committee, as may from to time be made.

The question that readily comes to mind is whether the promulgation of the Executive Order 00- 10 is not ultra vires the powers of the President and therefore a nullity? The executive powers of the Federation, as vested in the President by Section 5(1)(b) of the Constitution, extend “to the execution and maintenance of (the) Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws”.

The executive powers of the President clearly do not extend to usurping the executive powers or functions of the Governor of a State as vested by Section 5(2(b) of the Constitution. The Constitution vests in the President no powers and control over public funds of the State. Therefore when the President, either by act of aggrandisement or otherwise, exercises powers not vested in him by the Constitution or statute and/or in excess of the powers vested in him by the Constitution or statute; he acts ultra vires.

The ultra vires doctrine, in other words, is the rule against the excess or abuse of power: B. U. EKA- JUDICIAL CONTROL OF ADMINISTRATIVE PROCESS IN NIGERIA; page 61, 2001 Ed. ​Having read all the briefs of argument filed and exchanged in the matter; I agree with the plaintiffs’ counsel and all the Amici Curiae in their support, particularly Dr. Olisa Agbakoba, SAN, that the President has, in the guise of the Executive Order, amended the Constitution which legislative power does vest or inhere in him.

He has taken over the plaintiff States’ constitutional power and control over their public funds under Sections 120, 121, 123 and 124 of the Constitution; and vested same on the Presidential Committee. Therefore on the combined effect of the doctrines – nemo dat quod non habet, and delegatus non potest delegare the President cannot arrogate the powers he does not have under the Constitution to himself nor delegate same to the Presidential Committee, the Attorney-General of the Federation or the Accountant-General of the Federation the powers he does have under the Constitution.

Doing so is ultra vires, null and void. The plaintiffs States posited that by the Executive Order- 00- 10, and I agree that, the President is unconstitutionally shierking the financial burden the Constitution has placed on the Consolidated Revenue Fund of the Federation (by relieving it of the burden) and passing it on to the plaintiffs. Neither in the suits: FHC/ABJ/CS/63/2013: OLISA AGBAKOBA v. FEDERAL GOVERNMENT & ORS nor FHC/ABJ/CS/667/2013 J.U.S.U.N v. N.J.C & ORS was any decision nor order of such sort made to warrant the purported enforcement vide the Executive Order.

The Executive Order, as it pertains to the judiciary, being ultra vires the President to make, is a nullity and unenforceable; and I so declare. The Executive Order 00- 10, being inconsistent with the Constitution, is to the extent of the inconsistency void and unenforceable by dint of Section 1 (3) of the Constitution.

Reliefs 6, 7, and 8 couched as follows- 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 plaintiff 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 CRFN, from 31st January, 2020 until the date of delivery of judgment by Supreme Court of Nigeria are in a nature of special damages.

Special damage comprises all past pecuniary losses which are calculated at the date of trial: HALBURY’S LAWS OF ENGLAND 4TH Ed., vol. 36(1) paragraph 28, pages 21. Upon a claim of special damage, the plaintiff has an obligation to particularise, That obligation to particularise arises “not because the nature of the loss is necessarily unusual but because the plaintiff who has the advantage of being able to base his claim upon a precise calculation must give the defendant access to the facts which make such calculation possible”: PERESTRELLA v.

UNITED PAINT CO (1969) 1 WLR 570 per Lord Donovan, see also A.G. ANAMBRA STATE v. ONUSELOGU (1987) 4 NWLR (pt. 66) 547; NWOBOSI v. ACB LTD (1975) 6 NWLR (pt. 404) 658 at 680. As such the duty the plaintiff owes the defendant as well as the Court lies not just in Evidence Law but also, to some extent, in constitutional law. Sections 131 (1) of the Evidence Act, 2011 obligates whoever desires the Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts to prove that those facts exist in order to be entitled to judgment.

Section 133(1) of the same Evidence Act provides that, in civil cases, the burden of first proving the existence or non-existence of an essential or material fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. No burden befalls the defendant to rebut when special damages are claimed without specific particulars and are not proved in discharge of the plaintiff’s duty to prove his assertion in order to be awarded that aspect of his claim.

The constitutional obligation on the plaintiff to particularise the special damages he claims lies in the duty the plaintiff owes the defendant, under Section 36(1) of the Constitution guaranteeing the right to fair hearing in the determination of his civil rights or obligations by the Court of law. The audi alteram partem component of the right to fair hearing requires the plaintiff to give the defendant an opportunity not only to be heard, but also to know, how he (the plaintiff) has come about the calculation of past pecuniary loss being claimed against him the defendant.

That is why Lord Donovan (op. cit) had stated that “the plaintiff who has the advantage of being able to base his claim upon a precise calculation must give the defendant access to the facts which make such calculation possible”. I do not, in my firm view, think that the plaintiffs in this case have particularised all the items that make up the various sums they seek refund of to them by the Defendant under their reliefs 6, 7 and 8 special damages, or claims in the nature of special damages that require specific pleadings of, with particulars.

The plaintiff who claims special damages shall as well prove same strictly and specifically. The evidence on it must establish clearly how the plaintiff suffered such damages as he claimed. Special damages are not inferable from the nature of the fact. They do not follow in ordinary cause. They are exceptional in their character and must be claimed specifically and proved strictly: KOPEK CONSTRUCTION LTD v. JOHNSON KOLEOLA (2010) 3 NWLR (pt. 1182) 618. When duly established special damages do not, for purpose of award, give the Court much discretion.

The plaintiffs, having not made out the claims in Reliefs 6, 7 and 8; the said claims are accordingly denied and refused. As regards Reliefs 1, 2, 3, 4, 5 and 9 the plaintiffs claim, I am favourably inclined to awarding them in their favour and they are accordingly so awarded.

HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have read the lead judgment just delivered by my learned brother MUSA DATTIJO MOHAMMED JSC. I agree with the reasoning and the conclusion that the principal claims of the Plaintiffs cannot be granted. The Plaintiffs are the thirty-six (36) Attorney’s General of the thirty-six States of the Federation who have instituted this action on behalf of their respective States, while the Defendant is the Attorney General of the Federation who is sued for and as a representative of the Federal Government of Nigeria.

The 1999 Constitution (as altered) will hereafter be described as the “CFRN (as altered)” (The alterations enure into the Principal Act – 1999 Constitution).

The questions raised by the originating summons and the reliefs sought there in are as follows:- 1.

Having regards to the clear and unambiguous provisions of Sections 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 State High Courts, Sharia Courts of Appeal, 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, State 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. RELIEFS SOUGHT 1.

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 is constitutionally obligated and/or charged with the responsibility for funding of all capital and recurrent expenditure for the State 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. 2.

A DECLARATION that by virtue of the clear, lucid and unambiguous provisions of 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 Court 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 Presidential Executive Order Non 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 Plaintiff 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.

The originating summons is supported by an affidavit of 63 paragraphs and Plaintiffs’ written address. The Plaintiffs filed a further affidavit of 11 paragraphs in support of the originating summons. The completed list of the particulars of the capital expenditures of some State Courts from 1999 to date to support the claim for refund was also submitted by Adamawa, Bayelsa, Bauchi, Borno, Cross River, Delta, Ebonyi, Edo, Ekiti, Enugu, Gombe, Imo, Katsina, Kebbi, Nasarawa, Niger, Rivers, Sokoto and Zamfara States and attached to the said further affidavit and marked as exhibit A.

The Plaintiffs filed a second further affidavit in support of the originating summons.

The Attorney General of the Federation as Defendant filed its memorandum of conditional appearance, counter affidavit with several Exhibits and written address in opposition to the originating summons. The Plaintiffs filed an affidavit in reply to the said Defendant’s counter affidavit.

The case of the Plaintiffs as disclosed in the 63 paragraph further affidavit in support of the Originating Summons and 11 Paragraph further affidavit in summary is that by the express provisions of Section 81 (3), Paragraph 21 (e) of the Third Schedule Part I and Section 121 (3) of the Constitution of the Federal Republic of Nigeria 1999 (as altered), the funding of all capital and recurrent expenditure of the State High Courts, the Sharia Courts of Appeal, the Customary Courts of Appeal of the States is the responsibility of the Federal Government through appropriation from the Consolidated Fund of the Federation payable through the National Judicial Council being Courts specified under Section 6(5) of the Constitution.

The Defendant on the merit of the case, filed a counter affidavit which in the main admitted compliance with the responsibility for the payment of salaries and allowances of judicial officers of the Federal as obligated under Section 84(7) of the Constitution. The Defendant denied responsibility for providing for capital expenditure of all the Courts created for the Federation under Section 6(5) of the Constitution of the Federal Republic of Nigeria.

The Defendant also justified the validity of the Presidential Executive Order No. 00-10 of 2020 as a means to enforce obedience to constitutional provisions relating to the 36 States of the Federation.

Before I go into the substance of these issues, I will deal with the merit of the preliminary objection. The Defendant raised a preliminary objection to this suit on the following grounds: – 1. In the Plaintiffs’ suit constitutes a breach of the doctrine of Res judicata (i.e. estoppel per rem judicata); 2. The Plaintiffs’ suit constitutes a breach of the doctrine of issue estoppel; 3. The Plaintiffs cannot relitigate issues and facts upon which the Federal High Court had made final findings in its judgment, and 4. The judgment of the Federal High Court is still valid and substituting.

The Defendant attached to the counter affidavit in defence of the originating summons the judgment in suit No. FHC/ABJ/CS/63/2013 – Olisa Agbakoba v. AGF & 2 Ors. delivered on 22/5/2014 by Hon. Justice A. R. Mohammed as exhibit HAGF I. Also, the judgment in suit No. FHC/ABJ/CS/667/13- Judicial Staff Union of Nigeria v. NJC & 73 Ors. delivered on 13/1/2014 by A. F. A Ademola s Exhibit HAGF 2. Both judgments were attached in aid of the contention that the defence of Res judicata can be a shield for the Defendant in this suit.

A close consideration of the grounds of objection shows that the grounds are deficient in all material particulars in relation to what aspects of the judgment being held up as a shield constitutes estoppel per rem judicatem. This contravenes Order 13 Rules 3, 4, 6 (1) of the Federal High Court (Civil Produce) Rules 2009 which provides that the Defendant must state specifically with particulars the facts of estoppel. The rules of the Federal High Court are applicable to this case by virtue of Order 3 Rule 1 of the Supreme Court Rules.

The affidavit in support of the preliminary objection merely stated tersely that the previous suit No. FHC/ABJ/667/2013 in which judgment was delivered on 13/1/2014 between JUSUN NJC & 73 Ors had included all the present Plaintiffs constitutes issue estoppel because that case decided the issue relating to “the funding of the judiciary at the Federal and State levels”. The grounds also include the fact that the said judgment sought the interpretation of Section 81 and Section 221 of the Constitution.

Be that as it may, and not willing to dwell on the paucity of materials for consideration of the merit of the objection, it is apt to note that the questions raised for determination in suit No.

FHC/ABJ/CS/667/2013 are as follows:- QUESTIONS FOR DETERMINATION 1) Whether having regard to the provisions of Sections 81 (3), 121 (3) and 162 (9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) funds/amount standing to the credit of the Judiciary in the Federation Accounts/States shall not be paid directly to the Heads of Court concerned. 2) Whether having regards to the provisions of Sections 81(3) and 121(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) the Funds/Amounts standing to the credit of the Judiciary in Consolidated Revenue Fund of the States ought NOT to be paid in piecemeal to the judiciary through the States Ministry of Finance as and when the Governors (3rd – 74th Defendants) so desire or at their whims and caprices. 3) Whether the Defendant’s failure to ensure transparency in the annual budgeting, monitoring and implementation of budgets for the States Judiciary as the 3rd Arm of Government is a breach of the Fiscal Responsibility Act, 2007 cum States’ relevant Fiscal Responsibility Laws and if so, the legal consequence(s) thereof The Plaintiff sought the following reliefs: – 1.

A Court Declaration that the Defendant’s failure, neglect and or refusal to pay the funds/Amounts standing to the credit of the States’ Judiciary in the Federation/Consolidated Revenue Fund directly to heads of Courts in the various States’ Judiciary is a constitutional breach which has to be abated forthwith. 2. A Court Declaration that the piece-meal payments/allocations of funds through the States’ Ministry of Finance to the States Judiciary at the Defendant’s pleasure, is unconstitutional, unprocedural, cumber-some, null, void and has to be abated forthwith. 3.

A Court Declaration that the Defendants are in breach of the relevant provisions of the Fiscal Responsibility Act, 2007 and the relevant States’ Fiscal Responsibility Laws in the way and manner of their disbursing funds to the State’s Judiciary, annual budgeting, monitoring cum implementation of budgets for the States ‘Judiciary. 4. A Court order mandating/compelling the Defendants to comply with the provisions of Sections 81(3) and 162 (9) of the 1999 Nigerian Constitution (as amended) in the disbursement of Funds to the Heads of Courts forthwith. 5.

A Court Order compelling the Defendants to henceforth ensure transparency in the way and manner of disbursing funds standing to the credit of the States’ Judiciary by publishing the Disbursement schedules regularly as statutorily required for public consumption/scrutiny. 6. An Order of perpetual injunction to perpetually restrain the Defendants, their agents, assigns, privies etc from committing any further breach of the aforesaid Constitutional/Statutory provisions. 7. Such further and or other order(s) as the Justice of this case may demand.”

I have hitherto set out the claims herein and the reliefs sought. It is clear that the issues in suit No. FHC/ABJ/CS/667/2013 border on complaints against the State Executive arm of Government and their failure to pay as at when due to the heads of Court the funds appropriated to the judiciary in the State. It also challenged the manner of annual budgeting, disbursement and monitoring of funds by the State governments vis a vis the judiciary of each State.

Whereas the subject matter of the present suit is whether the Federal Government has the Constitutional responsibility to fund the capital and recurrent expenditure of all the Courts created by Section 6(5) of the CFRN.

​The plea of Res Judicata is legally founded on the basis that a previous judgment of a Court of competent jurisdiction had decided to finality the issues of law and facts raised by the Plaintiff in the present suit. The Court before whom the plea of res judicata is raised must examine what was directly in issue and decided upon in the previous judgment sought to be used as a shield. Thus, it is the cause of action that matters and a Plaintiff cannot by formulating a fresh claim re-litigate the same cause based on the same facts seeking the same or similar reliefs.

It is the facts in issue that matter not the way the claims have been couched. In Attorney General, Nasarawa State v. Attorney General Plateau State (2012) LPELR-9730 (SC); (2012) 10 NWLR Pt. 1309 Pg.419, this Court defined a plea of res judicata to mean a thing adjudged between the same parties or their privies by a competent Court. See also Balogun v. Adejobi (1995) LPELR-724 (SC), (1995) 2 NWLR Pt.376 Pg.131; Ajiboye v. Ishola (2006) LPELR- 301 (SC) (2006) 13 NWLR Pt.998 Pg.628, Cole v.

Jibunoh (2016) LPELR-40662 (SC); (2016)4 NWLR Pt. 1503 Pg. 499. ​In this case, the question of law in issue is whether the Federal Government is constitutionally bound to be responsible for capital expenditure of Courts vested with judicial power by Section 6(5)(f),(g),(i) and (k), those expenditures hitherto borne by State Governments.

Even though the parties are substantially the same, the questions in relation to some provisions of the constitution are similar though not on all fours, the reliefs sought in both cases from the pleadings of the parties are vastly different and cannot found the basis for the plea of issue estoppel and Res judicata made herein.

My Lords, the premise of the Defendant’s objection is flawed ab initio. This is because the two judgments sought to be used as issue estoppel are the judgments of the Federal High Court which is a Court of first instance. By the combined effect of Sections 232 and 235 of the CFRN (as altered), this Court is both a Court of first instance and the final Court in this class of cases brought for adjudication. Both Courts don’t enjoy equal or similar status.

The judgment of the Federal High Court at first instance even where it has not been appealed against cannot bind the Supreme Court of Nigeria or be pleaded as res judicata before this Court. It would be ludicrous so to hold. I find no merit in the plea, the preliminary objection is dismissed.

​Now to the substance of this claim. In the Plaintiffs’ address settled by a panel of respected members of the Inner Bar led by Augustine O. Alegeh SAN., signed by Aihunegbe A. Malik SAN., two issues were distilled for determination as follows:- i.

Having regard to the clear, lucid and unambiguous provisions of Sections 6 and 81 (3) of the Constitution of 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 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 on the Federal Government is not unconstitutional.

The issues identified by the Defendant in the brief settled by Abubakar Malami, SAN, Attorney General of the Federation are similar in substance and content with the Plaintiffs’ issues. I will adopt the Plaintiffs issues in the determination of this claim. Several amici curiae gave the benefit of their opinions on these important issues on the invitation of the Court.

The eminent Senior Advocates are:- Asiwaju Adegboyega Awomolo SAN, Dr. Olisa Agbakoba SAN, Chief Sebastian Hon. SAN, Mahmud Abubakar Magaji SAN, Musibau Adefunbi SAN.

ISSUE ONE The Plaintiffs argued on issue one that each State has been illegally compelled by Defendant’s action to fund all the capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of their respective States apart from the salaries of the judicial Officers.

The Plaintiff States have been made to provide Court rooms, residential quarters, furniture, vehicles, generators and other capital expenditure as well as all recurrent expenditure apart from salaries of judicial officers for the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of their respective States.

The Plaintiffs argued that a literal interpretation of the lucid and unambiguous provisions of Section 81(3) of the Constitution leads to the obvious and irresistible conclusion that the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the Plaintiff States to which this dispute relates are to be funded by the Federal Government, represented herein by the Defendant, in terms of all capital and recurrent expenditure.

Learned Senior Counsel argued that the CFRN under Section 153 establishes the National Judicial Council (NJC) and sets out its functions in Item 21 of the Third Schedule to the CFRN and further provides specifically that the NJC shall “…Have power to collect, control and disburse all moneys, capital and recurrent, for the judiciary”.

The Courts envisioned by Section 121 (3) of CFRN are the Courts established by the respective Houses of Assembly of the various States of the Federation and not the Courts listed under Section 6(5) of CFRN. It goes without saying that the draftsmen of the CFRN anticipated that certain Courts other than the State High Courts, Sharia Courts of Appeal and Customary Courts of Appeal set out in Section 6(5) of the CFRN, may be established in the respective States of the Federation by the State Houses of Assembly.

Consequently, the funding of the capital and recurrent expenditure of these Courts created by the State Houses of Assembly was made the responsibility of the respective State Governments.

The Defendant argued that it is a gross misconception of the Constitutional provisions in Sections 6, 80, 120, 121, 318 and Item 21(e) of the 3rd Schedule to the CFRN for the Plaintiffs to assert that the responsibility of the Federal Government as it relates to the funding of Superior Courts of record established for the States under Section 6(5), is not limited to the payment of salaries and allowances of judicial officers mentioned in Section 84 (4) and interpreted under Section 318 of the Constitution to mean ‘Judges’ but that it extends to infrastructural provisions for the State High Court, the Sharia Court of Appeal of the State and the Customary Court of Appeal of the States.

The learned AGF submitted that it is clear from Section 6 and Chapter VII Part I & II when read together with the CFRN that two sets of Courts have been established – one for the Federation and one for the States. Senior Counsel argued that under the Judicature, the CFRN makes a clear distinction between the two Courts by placing them under different heads.

The Defendant argued that by considering all these constitutional provisions, as relates to the funding of the Judiciary, is simply that funds charged to the Consolidated Revenue Fund (as opposed to funds that need to pass through the legislative process of appropriation) are the funds meant for the remuneration, salaries and allowances of judicial officers. These funds do not require any legislative assent as they are already charged by the CFRN and therefore can be withdrawn from the Consolidated Revenue Fund of the Federation without Appropriation.

Needless to say, that these funds to wit: remuneration, salaries and allowances clearly fall within the category of recurrent expenditure, being expenses that are obviously recurring in nature.

The senior Counsel for the Defendant urged the Court to consider the guidelines for interpretation of the Constitution as pronounced by Obaseki JSC in AG Bendel State v. AGF (1981) 10 SC Pg. 1. The Attorney General of the Federation argued that Sections 162(4) (5)(6)(7) & (8) of the 1999 CFRN (as amended) is evidence of the fact that the State Governments have their own allocations separate from amounts standing to the credit of the Judiciary.

Chief Awomolo SAN, as amicus argued in favour of the Plaintiffs’ case that a combined reading of Sections 80 (1) and (2) and 6 (5) of the Constitution means that all monies required to be withdrawn from the Consolidated Revenue Fund of the Federation in respect of the Judiciary are of (2) two categories: I) Fund constitutionally charged to the Consolidated Revenue Fund of the Federation. Senior Counsel referred to Sections 84(4) and (7) of the CFRN (as altered).

II) Funds estimated as required for expenses for the next following year which shall include “capital” and “recurrent expenditure estimates” appropriated by the National Assembly.

​Learned Senior Counsel argued that the Constitution does not specifically provide for “Federal Government Courts” differently rather the Constitution referred to “Courts established for the Federation and States under Section 6 of the Constitution”. If the Constitution had intended to isolate Courts established for the Federal Government under Chapter VII, it would have so stated. Chief Awomolo, SAN, insisted that there is no directive to limit appropriation in respective of the judiciary to recurrent expenditure only.

​Chief Sebastian Hon. SAN, as amicus argued for the Plaintiff’s case that the entire provisions of Sections 80-84 of the 1999 Constitution are meant to also cover the capital and recurrent expenditure of the offices and persons of the Judex manning Courts wrongly labeled “State” Courts and that the provisions of Section 6(1), (3) and (5) (a)-(i) of the same Constitution ought to be read together, if for nothing else, for the clear, connecting provisions of Section 83(1) thereof.

Senior Counsel further submitted that this Court should also take cognizance of Section 84(1) and (4), which mandates the NJC to pay salaries and emoluments of all Judges of Superior Courts (including those of the High Courts, etc.) from direct disbursements from the Consolidated Revenue Fund of “the Federation” (CRFF). The framers of the Constitution grouped these Judex, not only with Justices of the Supreme Court and the Court of Appeal, etc, but with other “Federal” public servants like the President and the Vice-President, etc.

Senior Counsel asked the question whether those Judges are mere ‘State’ Judges, if not, why group them with these “Federal” public servants if not for the purpose of servicing them together.

Dr. Olisa Agbakoba SAN, as amicus argued for the Plaintiffs’ case that the case before this Court is about funding the Courts listed under Section 6 of the Constitution. Senior Counsel argued that the Defendant having admitted to funding State Courts set out in S.6, the defendant cannot approbate and reprobate. Senior Counsel further submitted that this Court should overrule certain orders in the judgment of this Court in Attorney General for the Federation v.

AG Abia & Ors (2002) (NO. 2) 6 NWLR Pt. 764 Pg. 542 which portions as highlighted by him are per incuriam since this Court did not advert its mind to the provision of Item 21 (e) of the 3rd Schedule of the CFRN 1999. Senior Counsel submitted that this Court should also strike down certain laws made by some state Legislature to appropriate moneys for officers of some State Courts. In particular Senior Counsel referred to Section 6 of the Lagos State High Court Law which he insists is unconstitutional for provisions of extra salary and allowances for the judges of the High Court of Lagos State.

​Mahmud Abubakar Magaji, SAN, as amicus in favour of the Defendant’s position urged the view that in interpreting Sections 80, 81 (1), (2) & (3) and 84(1), (2) (3), (4) & (7) of the Constitution, the Court must relate them to Section 6 thereof in view of the fact that it is the Section that establishes the Courts in issue.

Counsel further argued that in interpreting these Sections, this Court must relate them to Sections 6(2), (3) & (5)(e), (g) (i) as well as Sections 270(1), 275(1) and 280(1) of the Constitution as they are relevant in determining the owners of the Courts in question between the Plaintiffs and the Defendant.

Senior Counsel is of the view that if the words used in provisions of Section 84(1), (2), (3) (4) and (7) of the CFRN are given their natural meaning, it would not be difficult to come to the conclusion that the framers of the CFRN intended that the remuneration, salaries and allowances of the Judicial officers of the Courts established for both the Federation and the States under Section 6 of the Constitution is to be funded by the Federal Government.

The capital expenditure of the judicial offices of the Courts established for the Federation under Section 6 of the Constitution, but not inclusive of those for the States are also charged upon the Consolidated Revenue Fund of the Federation. The capital expenditure for the Courts established under Section 6 of the Constitution is to be borne by their respective owners; meaning the government of the Federation and government of the States respectively.

Senior Counsel submitted that it is not the responsibility of the Defendant/Federal Government to fund the Courts in issue other than paying the salaries and allowances of the judicial officers of those Court as expressly provided in Section 84(1), (2), (3) (4) & (7) of the Constitution becomes more compelling when it is borne in mind that this country is a Federation where both the Federal government and the component States have their respective spheres of authority as well as responsibilities.

​Musibau Adetunbi SAN, as amicus argued for the Defendant that the interpretation of Sections 6(5) (e), (g) and (i), 81 (3) and the said Item 21(e) of the 3rd Schedule in isolation of other Sections to grant the Plaintiffs’ claims is not only wrong but is equally going to lead to a great injustice to the Defendant. Senior Counsel argued that the literal rule of interpretation of Statutes remains the foremost principle of interpretation but that sections of the Constitution must not be construed in isolation of others.

Counsel cited a plethora of authorities including: PDP v Sherrif & Ors. (2017) LPELR – 42736 (SC) P 50-51 Paras G-A, Per Rhodes-Vivour JSC; Abegunde v. The Ondo State House of Assembly & Ors. (2015) LPELR- 24588 (SC) P.41 Paras B-C Per Mohammed, JSC; A.G. Lagos State v. A.G. Federation & Ors. (2014) LPELR – 22701 (SC) P.46-47 Paras B – A Per Muhammad, JSC.

Senior Counsel urged this Court to refuse the claims of the Plaintiffs in its entirety.

OPINION ON ISSUE ONE It is not in contention by the parties that all superior Courts of record for the Federal and State Governments have been created by S.6 of the CFRN. It is also not seriously controverted by any of the parties that Section 81(3)(c), Section 84(1)(2)(3)(4) and (7) and the 3rd Schedule Item 21 (e) of the CFRN (as altered) vests the duty to fund the recurrent expenditure of all courts created by Section 6 of the CFRN (as altered) on the Federal Government.

The point of departure is that the Defendant does not agree with the Plaintiffs’ claim that the Federal Government is constitutionally bound to fund ALL Recurrent and Capital expenditures of Courts created under Section 6(5) of the Constitution.

The principal provisions of the CFRN in issue are Section 6; Section 83(1); Section 84; Section 153 (1); Section 162; Item 21(e) of the 3rd Schedule and of course other provisions which are necessary to consider in order to arrive at a just determination of the questions in controversy. My Lords, I will interpret these Sections of the CFRN by following the concept that the very provisions of the CFRN must be followed without considering other extraneous concepts as espoused by my Lord Niki Tobi JSC in Attorney General of Lagos State v.

Attorney General of the Federation (2003) 12 NWLR Pt. 833 Pg.1 at Pg. 246 wherein His Lordship opined thus:

“Let us not blow the Federal concept in our Constitution outside the parameters of the 1999 Constitution”. Thus, calling in aid other forms of Federation in violent conflict with the letters of the 1999 Constitution is wholly futile. See Chief Adebiyi Olafisoye V. FRN (2004) 4 NWLR Pt. 864 Pg. 580. A close study by scholars of Federalism shows that there appears to be no two Federal Governments of the same structure or character.

The nature of each of the Federal system of Government creates its peculiar structure that suits its political history, culture and accommodation of the diverse nation States that form the Federation. By the provision of Section 1 and 3 of the CFRN (as altered), that document is the grundnorm, and is thus supreme to all other legislations and shall have binding force on all authorities and persons in Nigeria. See AG Abia v. AGF (2002) 6 NWLR Pt. 763 Pg. 216 at 479.

There is no doubt that the Nigerian brand of “Federalism” as provided for in the CFRN (as altered) is different from other brands of federalism. There are some provisions that clearly show the Nigerian brand as a quasi-Federal or an elevated unitary system of government rather than the theoretical brand of federalism envisaged by political legal theorists. The ideal or true Federalism is different from a nation’s specific or individual constitution as there is no universal agreement as to what pure and true federalism is.

Thus, the general definitions of federalism do not affect the efficacy or effectiveness of peculiar provisions in a nation’s constitution.

Professor Nwabueze SAN., in his book Constitutional Democracy in Africa Vol. 4 at pg. 201 defines federalism as: “Federalism is an arrangement whereby governmental powers within a country are shared between a national, country-wide government and a number of regional (i.e territorially localized) governments all equal of levels and status as governments, in such a way that each of the national and regional government exist separately and independently from the others and operates directly on persons and property within the territorial area of its jurisdiction, with a will of its own and its own apparatus for the conduct of its affairs, and with an authority in some matters exclusive of all the others.

Federalism is thus essentially an arrangement between governments, a constitutional device by which political powers within a country are divided among various units of governments, rather than among geopolitical entities comprising different peoples…” The Black’s Law Dictionary 10th Edition Pg. 732 defines “Federation” as a league or union of states, groups or people united under a strong central authority but retaining limited regional sovereignty, especially over local affairs.

Be that as it may, the Courts are bound to interpret our own brand of “federalism” as we choose to call our system of government. Section 2 of the CFRN (as altered) describes Nigeria as a Federation consisting of States and a Federal Capital Territory. From previous authorities, it is clear that it has been discovered that the spirit and essence of the CFRN (as altered) are sometimes at variance with some of its provisions. The policy thrust of this Court hitherto was to enshrine the spirit of federalism whenever the provisions of the Constitution seem to be at variance with its spirit.

In AG Fed. Abia & Ors v. AG Fed & Ors (2006) 7 SCNJ 1, (2006) 16 NWLR Pt. 1005 Pg. 265, this Court re-affirmed the position of Nigeria as a Federation when it held that it was improper for the Federal Government to legislate on the distribution of funds allocated to Local Government. This Court reiterated the autonomy of States in the Nigerian Federation and stated that allocation of funds to the Local Governments is the function of the State Government. Thus, as held in AGF & Ors v. Alh.

Atiku Abubakar (2007) 10 NWLR Pt. 1041 Pg. 1. at Pg. 157: “The function of the Constitution is to establish a framework and principles of government broad and general in terms intended to apply to the varying conditions which the development of the communities must involve, ours being a plural dynamic society and therefore, mere technical rules of interpretation of statutes are to some extent inadmissible in a way so as to defeat the principles of government enshrined in the Constitution.” As Ogundare JSC opined in AG Abia v.

AGF (2002) 6 NWLR Pt. 763 Pg. 264 at Pg.119: “It is trite law that the Constitution of any nation is not expected to contain all the minute details of a good government. It suffices that it prescribes brief and comprehensive outlines leaving the details to be filled by those charged with the responsibility of working out the requirements of a good government.” The interpretation of the Constitution should serve the interest of the spirit of the Constitution in order to carry out its objectives and purpose. See Hon. Abegunde v. Ondo State House of Assembly (2015) 4 SCNJ 179; (2015) NWLR Pt. Pg.

The Constitution must be interpreted wholistically. See AG. Lagos v. AGF. (2014) 4 SCNJ 374; (2014) ALL FWLR Pt. 740 Pg. 1296. What I am saying here is that in attempting to consider the answer to the originating summons, I will remember that the policy thrust of this Court has been to enthrone the principles of federalism rather than lean toward unitarianism in interpreting the provisions of the 1979 and now the 1999 CFRN (as altered).

Under this issue, the framework and scope for funding the Court mentioned in Section 6 (5) of the CFRN must be considered. This is not a novel issue although the aspect of the present claim submitted for determination has never been seriously considered by this Court. ​The relevant constitutional provisions for consideration are set out below. Section 6 of the CFRN 1999 (as altered) states as follows:

(1) The judicial powers of the Federation shall be vested in the Courts to which this section relates, being Courts established for the Federation. (2) The judicial powers of a State shall be vested in the Courts, to which this section relates, being Courts established, subject as provided by this Constitution, for a state. (3) The Courts to which this section relates, established by this Constitution for the Federation and for the States, specified in Subsection (5) (a) to (i) of this Section shall be the only superior Courts of record in Nigeria; and save as otherwise prescribed by the National Assembly or by the House of Assembly of a State, each Court shall have all the powers of a superior Court of record. (5) This section relates to: (a) the Supreme Court of Nigeria; (b) the Court of Appeal; (c) the Federal High Court; (cc) the National Industrial Court; (d) the High Courts of the Federal Capital Territory, Abuja; (e) a High Court of a State; (f) the Sharia Court of Appeal of the Federal Capital Territory, Abuja; (g) a Sharia Court of Appeal of a State;

(h) the Customary Court of Appeal of the Federal Capital Territory, Abuja. (i) a Customary Court of Appeal of a State (j) Such other Court as may be authorized by law to exercise jurisdiction on matters with respect to which the National Assembly may make laws; and (k) such other Court as may be authorized by law to exercise jurisdiction at first instance or on appeal on matters with respect to which a House of Assembly may make laws.

Section 81 (3) of CFRN provides thus: The amount standing to the credit of the (a) Independent National Electoral Commission (b) National Assembly (c) Judiciary, In the Consolidated Revenue fund of the Federation shall be paid directly to the said bodies respectively; In the case of the Judiciary, such amount shall be paid to National Judicial Council for disbursement to the heads of the Courts established for the Federation and the States under Section 6 of this Constitution.” Item 21(e) of the Third Schedule to the CFRN provides thus: The National Judicial Council shall have power to – (d) Collect, control and disburse all moneys, capital and recurrent, for the judiciary.

Section 153 (1) of the CFRN- creates the National Judicial Council as a Federal Commission. The composition and powers of the NJC are as contained in Pt.1 of the Third Schedule to the CFRN.

Section 162- (1) The Federation shall maintain a special account to be called “The Federation Account” into which shall be paid all revenues collected by the Government of the Federation, except the proceeds from the personal income tax of the personnel of the Armed Forces of the Federation, the Nigeria Police Force, the Ministry of Department of Government charged with responsibility for Foreign Affairs and the residents of the Federal Capital Territory, Abuja (2) The President, upon the receipt of advice from the Revenue Mobilization Allocation and Fiscal Commission, shall table before the National Assembly proposals for Revenue allocation from the Federation Account, and in determining the formula, the National assembly shall take into account, the allocation principles especially those of population, equality of States, internal revenue generation, land mass, terrain as well as population density;

provided that the principle of derivation shall be constantly reflected in any approved formula as being not less than thirteen percent of the revenue accruing to the Federation Account directly from any natural resources. (3) Any amount standing to the credit of the Federation Account shall be distributed among the Federal and State Governments and the Local Government Councils in each State on such terms and in such manner as may prescribed by the National Assembly. (4) The amount standing to the credit of the States in the Federation Account shall be distributed among the States on such terms and in such manner as may prescribed by the National Assembly. (5) The amount standing to the credit of Local Government Councils in the Federation Account shall also be allocated to the State for the benefit of their Local Government Councils on such terms and in such manner as may be prescribed by the National Assembly. (6) Each State shall maintain a special account to be called “State Joint Local Government Account” into which shall be paid all allocations to the Local Government Councils of the State from the Federation Account and from the Government of the State.

(7) Each State shall pay to Local Government Councils in its area of jurisdiction such proportion of its total revenue on such terms and in such manner as may be prescribed by the National Assembly. (8) The amount standing to the credit of Local Government Councils of a State shall be distributed among the Local Government Councils of that State on such terms and in such manner as may be prescribed by the House of Assembly of the State. (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 State under Section 6 of this Constitution.

Section 6 (1) vests judicial powers on Courts created by the CFRN for the Federation. Section 6(2) vests judicial powers on Courts created by the CFRN for the State. These Courts which can be established by the National Assembly and State House of Assembly are as stated in Section 6(5) and established by Sections 230 – 284 of the CFRN (as altered) Other lesser Courts exist as created for and by the State Government. Such lesser Courts are established by the Laws of the various State of Federation.

These Courts include several grades of Magistrates’ Courts, Customary Courts, Sharia Courts, Area Courts and District Courts. Thus, there are two categories of Courts. The superior Courts of Record established for the Federation by Section 6(5) (a-k) of the Constitution and inferior Courts established by State laws for the benefit of the State.

The question raised by this issue is whether the Appropriation Act passed yearly by the National Assembly ought to include both the capital and recurrent expenditure of all the Federal and State Courts vested with judicial powers by Section 6 (5) of the CFRN (as altered) just as each yearly Appropriation Act includes the anticipated income and expenditures of the Federal Executive and the Federal Legislature. In AGF v. AG Abia (2002) NWLR No. 2 supra, the central government was referred to as the government of the Federation.

However, the popular nomenclature used by the central government itself has been the Federal Government of Nigeria while the States are referred to as State Government. Thus, the Government of Nigeria as a whole made up of all the tiers and arms of government of the Federation will be referred to here as the Government of the Federal Republic of Nigeria (FRN) while the central government will be referred to as the Federal Government of Nigeria (FGN). Undoubtedly, the Sections under contention cannot be viewed in isolation of other provisions in the CFRN (as altered).

Section 6(3) makes the Courts in Section 6(5)(a) – (i) superior Courts of record. Thus Section 6 (5)(j) and (k) respectively delineate for the Federal and Courts established for the States by making the National Assembly responsible for vesting more powers on the Courts created FOR the Federation and the House of Assembly of a State responsible for vesting more powers on the Courts created for the State, The only construction to be made of Section 6 is that it merely vests judicial powers in the Superior Court of record created for the Federation and created for the States as the case may be.

The vesting of judicial powers on these Courts by Section 6 does not determine the financial source of these Courts. Thus, much stock cannot be placed on Section 6 to determine the fiscal responsibility of the Federal Government of Nigeria to the different tiers of the judiciary of the Federation. See:Nwabueze v. Okoye (1988) NSCC Pt. III Pg. 96; (1988) 10-11 SC 77 at 145. The cardinal and golden rule of interpretation is that a document must be read wholistically.

We cannot isolate the constitutional provisions under review without considering other relevant provisions which bear on the subject matter. Sections 270(1) & (2), 271(1) & (2), 275 (1) & (2), and Section 280 (1) & (2) come to mind. I will deal with those anon. Now, Chapter VII of the Constitution provides for the JUDICATURE. It states clearly in Part I thereof FEDERAL COURTS. Item A – Section 230 provides for the establishment of the Supreme Court. Section 237 provides for the establishment of the Court of Appeal, Item C- the Federal High Court in Section 249 etc.

Part II provides for State Courts. Item A – 270-274 establishes High Court of a State etc. item B- Section 275-279 establishes the Sharia Court of a State etc. Item C – Section 280 -284 establishes the Customary Court of Appeal of a State etc. ​The Constitution itself which vested the powers of being superior Courts on these Courts collectively in Section 6(3) and Section 6 (5) separated them into two categories namely Federal and State Courts. The CFRN did not state “Courts for the Federation”, but Courts for the “Federation and States”.

In Chapter V of the CFRN (as altered) which deals with the Legislature, the powers of the Legislature to control public funds was extensively provided. Part I deals with the powers of the National Assembly to control the Funds of the Federal Government, while Part II deals with the powers of the House of Assembly of a State to control funds which enure to the benefit of the State. In Bronik Motors v.

WEMA Bank (1983) NSCC Vol. 14 Pg. 226, in relation to the 1979 Constitution, this Court emphasized the fact that within the Government of the Federation each State has the discretion to establish or not establish some of the State Courts on which Section 6 had vested judicial powers. It appears that this Court had hitherto created through decision law the dichotomy between State Courts and Federal Courts in AG Abia v.

Attorney General of the Federation (2006) 16 NWLR Pt. 1005 Pg. 265 at 377 this Court per Niki Tobi JSC held as follows: “What is the constitutional function of the Auditor General of the Federation? Unlike the Accountant-General of the Federation, the Constitution provides for the function of the Auditor-general of the Federation and it is in Section 85(2) of the Constitution. It reads: The public accounts of the federation and of all offices and Courts of the federation shall be audited and reported on by the Auditor-General who shall submit his report to the National Assembly.

The subsection is so clear as to what finances the Auditor-General can audit and they are the public accounts of the Federation of all offices and Courts of the Federal Government, wherever they may be located. For example, the Auditor-General of the Federation has the right to audit the accounts of the Courts enumerated in Section 6(5)(a)(b)(c)(d)(f)(h). This is in addition to Federal offices. Perhaps, the point I am making will become clearer if I take Section 125(2) of the Constitution, the State counterpart of Section 85(2).

The subsection reads in part: “The public accounts of a State and of all offices and Courts of the State shall be audited by the auditor-general for the State who shall submit his reports to the House of Assembly…” Again the subsection is so clear as to finances the Auditor-General of a State can audit and they are the public accounts of the State and of all offices and Courts in the State.” No doubt, the judiciary as an arm of the Government of the Federal Republic is expected to have its “capital” and “recurrent” expenditure at both the Federal Government level and the State Level.

Item E under Part I of Chapter V of the Constitution provides for powers and control over public funds by the National Assembly in Sections 80 – 89 of the CFRN. ​Section 80 provides for the establishment of the Consolidated Revenue Fund of the Federation. No moneys can be withdrawn from the Consolidated Revenue Fund of the Federation unless such moneys have been charged upon the Constitution or authorized by an Appropriation Act passed pursuant to Section 81 of the CFRN or by an Act of the National Assembly.

Section 80 provides for funds which are appropriated for certain specific expenditure or business of the Government of the Federal Republic. The Federation Account is established by Section 162 as a distributable pool account and the Consolidated Revenue Fund is sourced from the Federation Account. Now, Section 81 (1) and (2) provide for the authorization of expenditure from the Consolidated Revenue Fund, which authorization is sought by the President from the National Assembly by seeking for the passing of an Appropriation Bill into an Act by the said National Assembly.

Section 81(3) provides as follows:- The amount standing to the credit of the- a) Independent National Electoral Commission, b) National Assembly and c) Judiciary In the Consolidated Revenue Fund of the Federation shall be paid directly to the said bodies respectively; in the case of the Judiciary, such amount shall be paid to the National Judicial Council for disbursement to the heads of the Courts established for the Federation and the States under Section 6 of this Constitution.

In Section 81(3) of the Constitution, INEC, the National Assembly and the Judiciary are grouped together as institutions which should be credited with moneys, from the Consolidated Revenue Fund. ​The reason for Section 81 (3) is to safeguard the salaries, recurrent expenditure and allowances of Judges and remove them from being subject to annual legislative vote.

Thus all the justices and judges of the Courts (Federal or State) established by Section 6(5) are protected by their salaries, allowances and recurrent expenditure being a charge on the Consolidated Revenue Fund of the Federal Government. Any other expenditure even if taken from the Federation Account cannot be a first line charge but must be subject to Federal Legislative approval as is the present practice. Section 81(3) in my view differentiates between the Courts established for the Federation and the Court established for the States.

This is more so when the amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the State shall be paid directly to the Head of State Courts of each State as provided by Section 121 (3) (b) of the CFRN (as altered). ​The argument that the funds meant for all the expenses of the judiciary (both capital and recurrent) are standing to the credit of the judiciary in the Consolidated Revenue Fund of the Federation.

Even only the various subsections of Section 81 are read together, it shows that there is provision for the amount that stands to the credit of the Judiciary and amounts that can only be given to the Federal or State Judiciary after the process of appropriation. So how do we ascertain the money standing to the credit of the “JUDICIARY” in the Consolidated Revenue Fund of the Federation. We don’t have far to look. Section 84 makes copious provisions for that.

The most relevant portions are stated below: Section 84 (1) There shall be paid to the holders of the offices mentioned in this section such salaries and allowances 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 renumeration, salaries and allowances payable to the holders of the offices so mentioned shall be a charge upon the Consolidated Revenue Fund of the Federation. (3) The renumeration, salaries payable to the holders of the said offices and their conditions of service other than allowances shall NOT be altered to their disadvantage after their appointment. (4) The offices aforesaid are the offices of the President, Vice-President, Chief Justice of Nigeria, Justice of the Supreme Court, President of the Court of Appeal, Justice of the Court of Appeal, Chief Judge of the Federal High Court, Judge of the Federal High Court, President of the National Industrial Court, Judge of the National Industrial Court, Chief Judge and Judge of the High Court of the Federal Capital Territory, Abuja, Chief Judge of a State, Judge of the High Court of a State, Grand Kadi and Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja, President and Judge of the Customary Court of Appeal of the Federal Capital Territory, Abuja, Grand Kadi and Kadi of the Sharia Court of Appeal of a State, President and Judge of the Customary Court of Appeal of a State, the Auditor- General for the Federation and the Chairmen and members of the following executive bodies, namely, the Code of Conduct Bureau, the Federal Civil Service Commission, the Independent National Electoral Commission, the National Judicial Council, the Federal Judicial Service Commission, the Judicial Service Committee of the Federal Capital Territory, Abuja, the Federal Character Commission, the Code of Conduct Tribunal, the National Population Commission, the Revenue Mobilisation Allocation and Fiscal Commission, the Nigerian Police Council, and the Police Service Commission. (7) The recurrent expenditure of judicial offices of the Federation (in addition to salaries and allowances) of the judicial officers mentioned in Subsections (4) of this Section) shall be a charge upon the Consolidated Revenue of the Federation. (8) The recurrent expenditure of the Independent Electoral Commission, in addition to the salaries and allowances of the Chairman and members, shall be a charge upon the Consolidated Revenue Fund of the Federation.

My Lords, the significance of the wording of Section 84 (7) must not be lost.

While Section 84 (2) provides for renumeration, salaries and allowances, Section 84 (7) the recurrent expenditure of judicial offices of the Federation (Federal Judicial Officers on one hand and puts in bracket (in addition…) (which brings into the fold) other judicial offices (State judicial Offices) whose recurrent expenditure shall be a charge on the consolidated Revenue Fund of the Federation. ​”Judicial Office” is defined by Section 318 of the CFRN to mean: The office of the Chief Justice of Nigeria, or a Justice of the Supreme Court, the office of the President or justice of the Court of Appeal, the office of the Chief judge of the Federal High Court or a Judge of the Federal High Court, the office of the President of the National Industrial Court or a Judge of the National Industrial Court, the office of the Chief Judge or Judge of the High Court of the Federal Capital Territory, Abuja, the office of the Chief Judge of a State or Judge of the High Court of a State, the office of the Grand Kadi and Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja, office of the President and Judge of the Customary Court of Appeal of the Federal Capital Territory, Abuja, a Grand Kadi or Kadi of the Sharia Court of Appeal of a State, or President or a Judge of the Customary Court of Appeal of a State;

and a reference to a “judicial officer” is a reference to the holder of any such office. ​The drafters of the CFRN did not make a mistake in the categorization of the different heads of expenditure of judicial offices charged to the Consolidated Revenue Fund.

It is important to note that the amount standing to the credit of any office in the Consolidated Fund of the Federation in any fiscal year cannot be reduced UNDER ANY CIRCUMSTANCES. Now, what does the CFRN (as altered) mean by the “recurrent expenditure” of “offices” of the named public functionaries in Section 84 (4). I daresay offices mean all the incidentals of the office of the named functionary.

Since recurrent is defined as something that returns from time to time, recurrent expenditure is expenditure that recurs repeatedly or periodically. ​This does not include the building wherein the officer performs the function or where the officer lives while performing the function, but entails everything else needed for the functionary to function in that office except for capital expenditure which is often a once in a while or one-off expenditure.

Judicial notice is taken of the fact that a judge’s office needs to have what in accounting parlance is called OVERHEAD COSTS or RECURRENT EXPENDITURE to function optimally in that office. This Court is entitled to take judicial notice and into consideration the accounting practices of the Courts of the Federation as mandated by the Accountant General of the Federation. The heads of expenditure called RECURRENT by the office of the Accountant General of the Federation are matters of public knowledge which this Court can take judicial notice of. Recurrent expenses are in two parts.

Personnel and running costs. Personnel Costs include salaries, allowances, and overtime payments where applicable to the holder of that office. Social Contributions like National Health Insurance, ITF Contribution, Housing Fund Contribution etc where applicable to the holders of that office. Under Overhead/Running Costs, there are several heads of expenditure.

There are costs of Travel and Transport – both local and international; Training- both local and international; Healthcare – both local and international; Utilities – electricity, internet charges, water, sewage, telephone charges etc; Materials and Supplies – office consumables – writing and printing materials etc, library books, newspapers, law magazines and periodicals; Security services, cleaning etc; Maintenance Services- maintenance of motor vehicles, office furniture, office and residential quarters, plants, generators and communication equipment etc; Miscellaneous expenses including refreshments, postage and courier services, honorarium and sitting allowances, subscription of the sporting activities of the judge, subscription to professional bodies where applicable etc.

The list above is by no means exhaustive. All these are part of the money supposed to be collected from the Consolidated Revenue Fund of the Federation for all judicial offices enumerated in Section 84 (4) by the National Judicial Council for disbursement to the Heads of ALL Courts as specified. The CFRN (as altered) is very clear on this part of the Constitution. There is a clear difference between the salaries and allowances of the office holder and other recurrent expenses to maintain the office.

This is because while the judicial salary and allowances are fixed and consolidated by the Revenue Mobilisation Commission, the recurrent expenditure to maintain the office yearly would perforce vary according to inflation rate. I take judicial notice of the fact that the National Judicial Council presently makes some payments to judicial offices in this regard. What I am labouring to say here had been settled by AGF v. AG Abia & Ors (2002) 6 NWLR Pt. 764 Pg. 542 (No.2). My Lords, in AGF v.

AG Abia & Ors (2002) 6 NWLR Pt. 764 pg. 542, (No.2) this Court held while considering the issue whether the judiciary should be financed wholly from the Federation Account or the Consolidated Revenue Fund that from the provisions of Section 162(9) it is the Consolidated Revenue Fund of the Federal Government and not the Federation Account that is charged with paying the salaries, allowances and the recurrent expenditure of judicial offices in the Federation.

This Court insisted that the capital expenses of the judiciary cannot be a first line charge on the Federation Account by virtue of S. 162(9) of the CFRN. My Lord Ogundare JSC stated clearly that this section is unclear as regards the issue of direct payment to the judiciary from the Federation Account. The implication in my view is that any amount to be sourced from the Federation Account must be by way of appropriation by legislative means. The Court in AG FED V. AG ABIA State & Ors (2002) (No.2) had cause to interpret Section 162 of the 1999 Constitution.

In that case, the Supreme Court held as unconstitutional the practice of allowing the Federal Capital Territory, the judiciary, Nigerian National Petroleum Corporation (NNPC), etc draw their yearly budgetary allocations directly from the Federation Account. Specifically held to be unconstitutional was the funding of joint funding contracts and the NNPC priority projects from the Federation Account. Also held to be unconstitutional, is for each Government (Federal or State) to seek to charge its debts on the Federation Account.

This Court also held that while States are entitled to have the Federal Government render account as to how the Federation Account is operated, they have to formally make a demand in that regard.

On the question of the 13% derivation, the Court held that it was not automatic as an enabling law of the National Assembly or a Presidential Modifying Order pursuant to Section 315 of the Constitution is needed to validate it or pay a higher percentage. ​From the clear interpretation of that judgment, combined with the clear and unambiguous provisions of Section 162 (3) of the CFRN, which has stated by whom and to whom the money in the Federation Account can be shared, the only money that can stand to the credit of the judiciary as a whole in that Account is the amount appropriated for use by the Federal Government from which the Federal judiciary takes its own share on one part and the State governments take their share from which the state judiciary takes its share on the other part.

There are calls for this Court to set aside AGF v. AG Abia (2002) NO.2 supra and to adopt a different interpretation of Section 162 (9). In Bronik Motors v. Wema Bank. , supra, this Court held at Pg. 250 of the NSCC report that the pre requisite conditions which must be prayed in aid and satisfied before this Court will not follow stare decisis are as follows: (a) A broad issue of justice OR (b) Policy (c) A question of legal principle such that the retention of the decision would amount to a perpetuation of injustice.

I am not persuaded that any of the above scenario has been successfully urged or is applicable in the circumstances of this case to call for the setting aside of the legal decisions and orders in AGF v. AG Abia (2002) No. 2. The thorny part of this Constitutional question is the provision of Paragraph 21(c) of Part 1 of the Third schedule to the CFRN which provides that the NJC shall have power to collect, control and disburse all moneys capital and recurrent, for the judiciary. This is the basis on which the case of the Plaintiffs rests.

I have continued to sound this refrain throughout this opinion, which is that the provisions of the Constitution must be considered as a whole. Section 80 of the CFRN makes it clear that for the Federal Government to expend capital expenditure in respect of Courts established for the State under Section 6(5)(e)(g) & (j) of the said CFRN, it must be an expenditure passed as part of the Appropriation Act or one Charged on the Consolidated Revenue Fund of the Federation.

The question is whether the money the NJC is supposed to collect as capital is the one charged to the Consolidated Revenue Fund of the Federation. (It cannot be by virtue of Section 84(4) & (7) of the CFRN). It is only the State House of Assembly that can appropriate by law, funds for the capital expenditure of the State Judiciary. See Section 121 of the CFRN. It is of note that Section 81(3) does not give any power to the National Assembly to Legislate on Funds for any arm of government of any State of the Federation.

If the Federal Government is to fund the capital expenditure of an arm of government of a state, it must derive its powers clearly from the CFRN. It goes without saying that the National Assembly and the President of the Federal Republic of Nigeria lack the vires to prepare Appropriation Law for any State in the Federation except upon declaration of a State of Emergency in that state. It is difficult to buy the argument that the Courts listed in Section 6(5)(e)(g) and (i) are Courts established for the Federation but wrongly labeled State Courts as opined by Chief Hon. SAN.

The other argument is that there is nothing in the CFRN that limits the word “amount” in Section 81 (3) which said amount covers INEC, the National Assembly and the Judiciary to only the recurrent expenditure of these organisations. Also, that the word “amount” in Section 162 (9) is synonymous with the word “amount” in Section 81 (3) and the word is elastic enough to mean capital and recurrent amounts. How to know the specific amount standing to the credit of any of the special institutions recognized by Section 81 (3) and their beneficiaries is clearly stated by ​Section 84 of the CFRN.

While Section 81 provides for authorization of expenditure from the Consolidated Revenue Fund of the Federal Government of Nigeria (FGN), Section 162 is about the distribution of money in the pool account of the Federal Republic of Nigeria. The word “account” cannot have the same meaning in both sections of the CFRN. The argument that the amount standing to the credit of INEC and the National Assembly includes both their capital and recurrent expenditure and are payable to them from the Consolidated Revenue Fund is not supported by the provisions of the CFRN.

Section 80 (2) is specific to the effect that only moneys charged upon the Consolidated Revenue Fund can be withdrawn from it. Every other amount to be taken from the Consolidated Revenue Fund must be by an Appropriation Act. Section 81 (2) explains how the appropriation must be done. ​My Lords, it is only the salaries, allowances and recurrent expenditures of the named offices in Section 84 (4) that are charged on the Consolidated Revenue Fund of the Federation which in turn then stand to the credit of the institutions controlling these offices.

Section 84 (8) explains this very well since it states that the recurrent expenditure of INEC in addition to the salaries and allowances of its Chairman and members shall be a charge on the Consolidated Revenue Fund. Since it mentions only the recurrent expenditure of the judiciary and INEC, the rule is that what is specifically mentioned excludes what is not mentioned and that capital expenditure is excluded from moneys charged on the Consolidated Revenue Fund. See Ehuwa v. Ondo State Independent Electoral Commission & Ors (2006) LPELR -1056 (SC).

As explained earlier, where payment is constitutionally or statutorily charged on the Consolidated Fund, it anticipates that the specie of money so charged is outside the yearly Appropriation Act of the Federation or the Appropriation Law of a State and such appropriation is no longer necessary. See Section 80 (3). The further argument is that each State judiciary will submit its capital budget to the NJC and the NJC will submit the budget of State Courts and that of the Federal Courts for appropriation as an Act of the National Assembly. As stated in AGF v.

AG Abia (2002) No. 2, Section 162 (9) has been rendered otiose since the judiciary was not made a direct beneficiary of “any amount” by Section 162 (3). The only way the State judiciaries can take anything is when it is passed down through the States’ share of the amount distributed pursuant to Section 162 (3).

In spite of Paragraph 21 (e) of Part 1 of the Third Schedule, which is a mere schedule or explanatory note to the principal Act (in this case the Constitution) and cannot override the clear and collective provisions of same, I do not agree with the proposition that we must give an interpretation to Paragraph 21(e) of Part 1 of the Third Schedule to the effect that funds due to the judiciary being a charge on the Consolidated Revenue Fund of the Federation presupposes that an exception has been made to the principle of Federalism in that both State and Federal Courts are given a unitary status and thus the Federal Government must fund both the Federal and State Courts recurrent and capital expenditure.

The argument in aid of this is that the framers of the CFRN meant that all the amounts standing to the credit of the judiciary both recurrent and capital should be paid over to the National Judicial Council for disbursement to heads of Court. What can be deduced from this is that there is direct payment of the moneys charged to the Consolidated Revenue Fund to the heads of Court through the National Judicial Council.

One of the arguments in aid of the Plaintiffs’ case is that all moneys due to the judiciary at all tiers, both Federal and State, both recurrent and capital should be sourced from the Consolidated Revenue Fund of the Federation and not be subject to any legislative appropriation. That argument with the greatest respect cannot hold in view of the nature of the provisions in the CFRN relating to the need for and what constitutes the Consolidated Revenue Fund of the Federation or the States.

As stated earlier, it is a fund that is never reduced or touched whatever the varied financial fortunes of government so that the beneficiaries are never short changed by the whims and caprice of any government for any reason. The further argument is that there is nothing in Item 21(e) of Part 1 of the Third Schedule that differentiates the payment of the amount standing to the credit of one body from that of the others like the National Assembly and INEC etc., and that if the capital & recurrent expenditures of other executive bodies are met, the same should hold good for the judiciary.

The argument is that there is nothing in the provisions of Section 81(3) that requires that the judiciary to be treated differently. I beg to differ from this reasoning. The other bodies apart from the judiciary covered by Section 81(3) are another arm of government being the National Assembly and INEC, a federal institution. The Judiciary of this country straddles or encompasses both the Federal and State Courts.

The natural conclusion I am able to draw following is that it is only a few institutions that benefit from the Consolidated Revenue Fund of the federation except for the specific functionaries mentioned by Section 84(4) of the CFRN. There is no doubt that paragraph 21 (e) of Part 1 of the Third Schedule is at variance with the other provisions of the CFRN in that it throws that phrase “capital expenditure” into the issue of funding for both the Federal and State Courts as opposed to all other provisions in the CFRN in that regard.

We have to consider the fact that since the Federal Government has no control whatsoever over the Consolidated Revenue Fund of a State, it cannot reasonably be expected to undertake the funding of a State’s Judicial Service Commission’s recurrent and capital expenditure. See JSC Cross River State & Anor v. Young (2013) LPELR-20592 (SC). I daresay that the approved budgetary estimate of a State Judiciary in any fiscal year is for the State and not for the Federal Government to execute. Provisions of the CFRN are made for specific purposes.

If the NJC or the Judiciary of a State were not to send its annual budget estimates for its capital expenditure to the budget office of the Executive arm of either the Federation or the State, why were the provisions for auditing the accounts of the Courts at both Federal and State levels brought into the CFRN?

In the absence of express mention of “capital expenditure” for the Courts in issue anywhere in those Sections of the Constitution relating to the Consolidated Revenue Fund of the Federation, it would not accord with the accepted principles of interpretation of the Constitution as already held by this Court in a plethora of cases to input words not stated in the Constitution. The power to take is a corollary of the power to give.

Assuming without conceding that the NJC has the power to collect the so called “unspecified funds” of the judiciary, then then CFRN must give unequivocal power to an authority to give NJC the capital expenditure of the States Judiciary for disbursement to the heads of Court. The modalities for such a procedure must be specifically stated. In this case, such a process cannot be inferred from any of the clear provisions of the Constitution. Such an inference is outside the purview of other provisions of the CFRN (as altered). In PDP V.

INEC (1999) 11 NWLR Pt.626 Pg. 200 at 265 this Court per Ayoola JSC opined thus in PDP V. INEC: “It will not be right to imply that the legislature would have legislated an irrational distinction. Where there are no gaps in the statute and the words are plain, the irrationality or absurdity of a statute may not be the concern of the Court. However, where there is an occasion for the Court to resort to implication, the Court should not hold as implicit in a statute, that which is irrational, unreasonable, absurd or inconvenient.” This Court held in Elelu-Habeeb v.

AG Federation (2012) 13 NWLR Pt. 1318 Pg.423 that amongst the principles of interpretation of the Constitution is such principle that would have the following effect: 1. To take into cognizance what a federation entails and that in doing that, the Constitution of the Federal Republic of Nigeria being an organic scheme of government is to be dealt with as an entirety. Hence, a particular provision should not be severed from the rest of the Constitution. 2. That a constitutional provision should not be construed in such a way as to defeat its evident purpose; 3.

That under the constitution where specific power is granted, a particular power must be granted before it can be exercised; 4. The principles upon which the constitution was established rather than the direct operation or literal meaning of the words used should measure the purpose and scope of its purpose; 5. Constitutional languages are to be given a reasonable construction and absurd consequences are to be avoided; 6. Seemingly conflicting points are to be harmonized if possible so that effect can be given to all parts of the constitution.

The interpretation of conflicting provisions must be harmonized to give effect to all parts of the Constitution. The Constitution clearly provides largely for largely fiscal autonomy of the various arms of government across all tiers of government. Financial autonomy stems from the need for judicial independence, which presupposes that the judiciary must as much as possible, except for constitutionally laid down cheeks and balances, be able to regulate its affairs independent of the Executive and the Legislature.

It is in this regard that financial sufficiency and autonomy become key incidents of judicial independence. There cannot be judicial autonomy without financial independence. The practitioners of the Constitution must obey the spirit and letters of the CFRN by ensuring the financial independence of the judiciary to give to the judiciary of the States its financial rights in due season. There is no doubt that the CFRN envisages that the State governments will give the capital moneys due to the judiciary to it as soon as it is appropriated by the State House of Assembly.

Flagrant and recalcitrant disobedience by any arm or tier of government of Constitutional provisions and extant orders of Courts does not augur well for our fledgling democracy. It does the temporary beneficiaries of such obstinacy no present or future good and contradicts the ideal communal purpose of growing an egalitarian society where there is real access to justice because the Courts are not only free and fair but have modern facilities to aid the speedy dispensation of justice.

The Spirit of Federalism, much more, the Spirit of Fiscal Federalism must be given its proper place in the interpretation of the CFRN.

Even though some of the very letters of the CFRN negates true Federalism, it is the duty of this Court to follow the hollowed precedents laid by this Court that even within the concept, context and structure of our brand of Federalism, we must situate Fiscal Federalism, a corollary of Fiscal autonomy of the various tiers and Arms of Government in its proper place. ​My Lords, there is a limit to which the judiciary can purposely make a policy decision to interpret the provisions of the constitution to meet the exigencies of the moment.

Lacuna can be provided by the Courts to make the Constitution work where no contrary arguments can be proffered or where there are no other solutions or interpretations obvious from the Constitution itself. Some social problems have to be left to the legislature and the politicians by the judiciary. The judiciary cannot always be a vehicle of temporary expediency if not it will lose its focus.

The judiciary cannot interpret the law in such a way that it totally usurps the mandate of the Legislature and inserts what is arguably expedient by way of policy and ignore what the law says by widening the interpretation of the law in excess of its elastic limits. There is no doubt that the Constitution of the Federal Republic of Nigeria as it presently stands is inelegantly and sometimes ambiguously drafted. It can be better drafted so that its intentions are clearer in certain areas and its provisions stated categorically beyond equivocation.

Until that is done, there is a limit to what the judiciary can stretch it to cover. ​There is no reason to agree with the view that from the various provisions of the CFRN it is within its ambit to conclude that the Federal Government should fund the Capital expenditure of state judiciaries. The first issue is resolved against the Plaintiffs.

OPINION ON ISSUE TWO I have considered the arguments of the parties in respect of issue two. There is no need to restate them here. The President of the Federal Republic of Nigeria signed an Executive Order cited as the IMPLEMENTATION OF FINANCIAL AUTONOMY OF STATE LEGISLATURE AND JUDICIARY ORDER, No. 010 of 2020. The Plaintiffs are challenging the authority of the President to make the order. This issue deals with the extent of the powers of the Federal Government vis-a-vis each of the State Governments in respect of the Financial Autonomy of States Judiciary.

The order was to compel the State Government to pay Remuneration, Salaries and Allowances of the judicial officers of the State Courts. The order also compelled the State Government to fund the Capital and Recurrent expenditure of State Courts vested with judicial powers under Section 6 of the CFRN.

​By the doctrine of separation of powers, the Executive, Legislature and Judiciary have their respective roles constitutionally delineated. Lawmaking is exclusively within the purview of the Legislature as guaranteed under Section 4 of the CFRN (as altered). This indeed is one of the hallmarks of democracy as endorsed by this Court in His Royal Highness Lamidi Olayiwola Adeyemi (Alafin of Oyo) & Ors v.

AG Oyo State & Ors (1984) NSCC Pg. 397 at Pg. 473; (1984) LPELR- 169(SC) where it was held thus: “The doctrine of separation of powers means that neither the Legislature, the Executive, nor the Judiciary should exercise the whole or part of another’s power. It was held by this Court in Lakanmi & Anor v. the Attorney-General of Western State & Ors, (1974) 4 E.C.S.R. 743 at Pt. 731 (1971) 1 U.L.

IL.R. 201 at Pg. 218 that the structure of the Constitution of the Federation of Nigeria 1963 (hereinafter referred to as the 1963) Constitution (Suspension and Modification) Act, 1966 (No.1 of 1966) was based on the separation of powers; and in the distribution of powers amongst the organs of government the Courts were vested with the exclusive right to determine justifiable controversies between citizens and State” Also in AG Abia State & Ors v.

AGF (2003) 4 NWLR Pt. 809 Pg. 124; (2003) LPELR- 610 (SC) Pg. 23-24, this Court held as follows: “The principle behind the concept of Separation of Powers is that none of the three arms of government under the Constitutions should encroach into the powers of the other arm- the Executive, Legislature and Judicial- is separate, equal and of coordinate department and no arm can constitutionally encroached upon by the other. The doctrine is to promote efficiency in governance by precluding the exercise of arbitrary power by all the arms and thus prevent friction”. More recently inUgwuanyi v.

Nicon Insurance Plc. (2013) LPELR – 20092 Pg. 63 (SC), it was held thus: “Thirdly, the 1999 Constitution as amended provides for separation of power between the three distinct organs, the Legislature, Executive and the Judiciary. The Constitution does not allow one out of the three to usurp the powers conferred on any of the other two.”

Undoubtedly, Section 5 of CFRN vested the Executive Powers of the Federation on Mr. President. Section 5 (1)(a)(b) provides thus: 5. (1) subject to the provisions of this Constitution, the executive powers of the Federation- a. Shall be vested in the President and may subject as aforesaid to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-president and ministers of the Government of the Federation or officers in the public service of the Federation; and b.

Shall extend to the execution and maintenance of this Constitution and all laws made by the National Assembly and to all matters with respect to which the National Assembly has for the time being, power to make law. Section 1 of the said Presidential Executive Order provides thus: 1. Appropriation, Authorization, Order, etc. a.

Without prejudice to any other applicable laws, legislations and conventions at the State tier of Government, which also provides for financial autonomy of State Legislature and State Judiciary in the State appropriation laws in the annual budget of the State, shall be a charge upon the Consolidated Revenue Fund of the State, as a First Line Charge. b.

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, authorize 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 12(3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). In Attorney General Bendel State v.

Attorney General Federation & Ors (1983) NSCC 181 at 192, this Court per Uwais JSC (as he then was) stated unequivocally thus: “As a general principle of constitutional law, it is implicit in the character of a federal constitution that neither the Federation nor the States could make laws imposing extra burden on each other. This is because the legislative power in a true Federation usually involves the division and limitation of governmental power. Therefore, the observations made by this Court in Attorney General of Ogun State & Ors v.

Attorney General of the Federation (supra) conform with the general principal of federalism which recognizes the autonomy of States.” In AG Ondo v. AGF & 35 Ors (2002) SC Pt. 1 Pg. 66-67; (2002) 6 SCNJ, (2002) LPELR-623 (SC) Pg. 59-61, this Court held that breach of the cardinal principles of doctrine of federalism in the Constitution is ineffectual with no force of law.

In that case, this Court held that Section 26(3) and Section 35 of the Corrupt Practices & other Related Offences Act 2000 are unconstitutional and declared them null and void because they offended the principles of federalism and were ultra vires the powers of the Federal Government to regulate upon. In AG Cross River State v. AGF & Anor (2005) 6 SCNJ 152, (2005) LPELR- 3159 (SC) Pg. 40-41 this Court insisted that the Federal Government is merely a trustee on behalf of the States in respect of funds paid unto the Federation Account. In AG Ogun State v.

AG Federation (1982 NSCC Pg. 1 at Pg. 33, ESO, JSC stated thus: “A situation where the Chief Executive of the country or a Federal Functionary could be subject to sanction by a State House of Assembly or State Chief Executive or functionary could be subject to the authority of the National Assembly would offend not only against the spirit but also the letter of the Constitution. Each of the State legislative Assemblies and the National Assembly is sovereign on its own House. Neither interferes with the Government of the other. This is the true basis of the Federal Constitution.

To be otherwise would lead to anarchy the exact antithesis of the intendment of the Constitution. Having held thus far that the National Assembly could not validly impose a duty on a State functionary and vice versa, the President in exercise of his power to adapt the Public Order act would be acting unconstitutionally if he imposed in the adaptation Order duty and obligations on the Governor of the State as contended by the learned counsel for the plaintiffs”. In AGF v.

AG Lagos State, (2013) 16 NWLR Pt. 1380 Pg. 249, this Court held per Onnoghen JSC (as he then was) that the defining feature of Federalism is the recognition of the separateness and independence of the Central (FGN) and each State government that makes up the federation. Therein, My Lord approved and reiterated the stand of this Court in AG Lagos v. AG Federation & Ors (2003) 12 NWLR Pt. 833 Pg. 1 where it was held that the 1999 Constitution re-enacts the doctrine of federalism that ensures that none of the government whether State or Federal is subordinate to each other, as each is autonomous.

See also AG Bendel v. AGF (1983) supra. In Alafin Adeyemi v. A.G.

Oyo (1984) supra this Court held forcefully Per Fatai Williams CJN at page 12 lines 27-32 thus: “Secondly, neither the President of the Federal Republic of Nigeria nor the National Assembly can unilaterally confer powers on a state functionary such as a Governor or the Attorney-General of a State and thus bring him within the investigatory nor scrutinizing powers conferred upon the National Assembly by Section 82 Subsection (1) of the 1979 Constitution”. ​My Lords, Section 5 (1) of the CFRN is very clear as to its intention and range.

It is to be noted that it is made subject to other over riding provisions of the CFRN. The provision is to empower the President to make Executive Orders to guide the various agencies of the FGN – Federal Government to execute its policies particularly where legislation is unclear or non existent on the point. Before specific laws are put in place, it is merely a hand maid to the President in ensuring by publication of policy directions, the agenda of the Presidency on matters with respect to which the National Assembly can make laws.

There is no doubt that appropriation and disbursement of funds for the State judiciary are not matters with respect to which the National Assembly can make laws. Undoubtedly, it is ultra vires of Mr. President to alter or modify Section 121 of the Constitution in any form whatsoever. Order 1(a) appears to me to either be a repetition or modification of Section 121(3) of the Constitution. In conclusion, the contents of the Presidential Executive Order particularly Sections 2-7 are ultra vires the powers of the President. It is null and void and of no effect.

I resolve the 2nd issue in favour of the Plaintiffs. In the circumstances, the first issue having been resolved against the Plaintiffs, reliefs 1, 2, 3, 4, 5, fails. Reliefs 6, 7, 8 consequently also fails. Relief 9 is granted since the Plaintiffs succeed on that issue.

UWANI MUSA ABBA AJI, J.S.C. (DISSENTING JUDGMENT): I have received in advance the draft judgment of my learned brother, Musa Dattijo Muhammad, JSC, wherein in his lead judgment, he granted the first relief sought by the Plaintiffs and declared the Presidential Executive Order No. 00.10 of 2020 unconstitutional, null and void.

The facts giving rise to the instant suit from the Plaintiffs/ Applicants are that the Defendant/Respondent has been funding only the Supreme Court, Courts of Appeal, Federal High Courts and High Courts of the FCT. For the State High Courts, Sharia Courts of Appeal and Customary Courts of Appeal in the Plaintiffs’ States, the Defendant has only been paying salaries of the judicial officers thereof since 1999.

However, by the combined constitutional provisions, it is the Defendant that has the constitutional duty and obligation to fund all capital and recurrent expenditures of State High Courts, Sharia Courts of Appeal and Customary Courts of Appeal in the Plaintiffs’ States. Thus, 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 States’ High Courts, Sharia Courts of Appeal and Customary Courts of Appeal is unconstitutional.

​The plank of the Defendant contrariwise is that the Plaintiffs since 1999 have defied the constitutional provision of financial autonomy for State Judiciaries in funding the capital and recurrent expenditures of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, through annual budgetary estimates of the Executive in the States, instead of paying the funds standing in the credit of the Judiciary in the Consolidated Revenue Funds.

Thus, that the Presidential Executive Order No. 00.10 of 2020, made by the President of the Federal Republic of Nigeria on 22nd May, 2020, is in line with the decision of Courts and the constitutional provisions to further grant financial autonomy to High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, and therefore not unconstitutional.

Consequently, the plaintiffs/Applicants vide an Originating Summons seek for the following declarations by this Honourable Court: 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 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 Courts 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 of 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 of all capital and recurrent expenditure for 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 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 find States’ High Courts, 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 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 respective Plaintiff 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.

The Plaintiffs filed their affidavit in support with annexures and written address while the Defendant filed its counter-affidavit, supporting documents and annexures thereof. Amicus Curiae Briefs were invited by this Court due to the public interest of this suit. Chief Asiwaju Adegboyega Awomolo, SAN, Dr. Olisa Agbakoba, SAN, S.T. Hon, SAN, Mahmud Abubakar Magaji, SAN, and Musibau Adetunbi, SAN, filed their respective briefs in the order of seniority.

The Plaintiffs formulated 2 issues for determination as follows: 1.

Having regard to the clear 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 the States of the Federation of Nigeria, being Courts created under Section 6 of the said Constitution. 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, State 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.

The Defendant on the other hand distilled 2 issues for determination thus: 1.

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 constitutionally obligated and charged with the responsibility for funding of all capital and recurrent expenditure of 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 Constitution. 2.

Whether in the highly improbable event that issues 1 is decided in favour of the Plaintiffs, the Plaintiffs have proven their case to entitle them to the refund of expenses allegedly invested in the recurrent and capital expenditure of the State Judiciaries from May 1999 to date.

Chief Asiwaju Adegboyega Awomolo, SAN, in his Amici Curiae brief submitted that the Plaintiffs’ reliefs be granted and a declaration that the Presidential Executive Order No. 00-10 of 2020 made by the President of the Federal Republic of Nigeria on 22nd May, 2020, is inconsistent with the provisions of the Constitution and should be declared void. Dr.

Olisa Agbakoba, SAN, in his Amici Curiae brief opined that the Defendant is constitutionally obligated to fund all capital and recurrent expenditures 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 CFRN, 1999. Thus, that the Presidential Executive Order No. 00-10 made by the President of the Federal Republic of Nigeria on 22nd May, 2020, is a violation of the Constitution. He prays this Court to grant all the reliefs of the Plaintiffs.

In the same light, S.T Hon, SAN, submitted that the two issues be resolved in favour of the Plaintiffs/Applicants.

Contrarily, Mahmud Abubakar Magaji, SAN, submitted that it will be against the spirit and intendment of the concept of Federalism which the Constitution sets out to achieve to place responsibility of funding the capital expenditure of State High Courts, Sharia Courts of Appeal and Customary Courts of Appeal under the Federal government of Nigeria. He however conceded that the Presidential Executive Order No. 00-10 of 2020 is unconstitutional.

Similarly, Musibau Adetunbi, SAN, agrees with the Defendant that it is the constitutional responsibility of the States to fund the capital expenditure of their respective State High Courts, Sharia Courts of Appeal and Customary Courts of Appeal. He therefore prays this Court to dismiss reliefs 1-8 while issue two be granted in their favour.

The Defendant has filed a preliminary objection to the case of the Plaintiffs dated 20/9/2021 and filed on 21/9/2021, on the grounds that: 1. The Plaintiffs’ suit constitutes a breach of the doctrine of res judicata. 2. The Plaintiffs’ suit constitutes a breach of the doctrine of issue estoppel. 3. The Plaintiffs cannot relitigate issues and facts upon which the Federal High Court has made final findings in its judgment. 4. That the judgment of the Federal High Court is still valid and subsisting.

The Defendant in seeking this Court’s favour and discretion distilled a lone issue for determination thus: Whether the instant suit does not constitute a breach of the doctrine of res judicata/issue estoppel and abuse of Court process.

The Plaintiffs filed their counter affidavit and written address dated 29/9/2021 and filed on same date, to the Defendant’s preliminary objection. They seek for determination: Whether the Plaintiffs’ suit constitutes a breach of the doctrine of res judicata/issue estoppel and an abuse of Court process.

​The preliminary objection of the Defendant is predicated on the plea of res judicata/issue estoppel and abuse of Court process. For the plea to succeed therefore, it must be established: 1. That the issues and subject-matter were the same in the earlier as in the second action or that the plaintiff has had an opportunity of recovering and, but for his own fault, might have recovered in the first action that which he seeks to recover in the second action. The cause of action must have been determined on the merits.

This is so because the plea has for its rationale the two legal maxims: interest reipublicae ut sit finis litium and nemo debet bis vexari pro una et eadem causa. 2. The parties must be the same. Parties include their privies either in blood, law or estate. 3. The judgment in the earlier action must be a final one. See Per OGUNDARE, J.S.C, in IGWEGO & ORS V. EZEUGO & ANOR (1992) LPELR- 1458(SC) (P. 50, PAR-AS. A-F). It is clear on the face of the Plaintiffs’ suit and that of the Defendant that the parties are not the same and it is not possible that the Judicial Staff Union of Nigeria V.

National Judicial Council and 73 Ors have transmogrified into the same parties as presented in the present suit. Furthermore, whereas the former case has its cradle from the Federal High Court, the jurisdictional cradle of the present case is the Supreme Court as expressly provided by Section 232(1) of the 1999 Constitution (as amended).

​Again, a preliminary objection is meant to terminate or abate the competence of a suit. Where it is so allowed, the aggrieved party has the right of appeal. However, it should be discouraged in cases that come to the Supreme Court as the Court of first instance and last resort in order to give both parties fair hearing rather than truncating their case or shutting any party out preliminarily. This is because in cases where the Supreme Court assumes original jurisdiction, the parties do not have any other Court to resort to.

They ought therefore to be given fair hearing rather than allowing a preliminary objection to abate it. The preliminary objection is therefore dismissed.

MAIN SUIT: Since I dissent the majority judgment/opinion, I shall consider the issues formulated by the Defendant.

ISSUE 1: 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 constitutionally obligated and charged with the responsibility for funding of all capital and recurrent expenditure of 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 Constitution.

​I will straightway consider the relevant sections of the Constitution for clarity and differentiation.

Section 6 (1)-(5) of the 1999 CFRN provides: 6. (1) The judicial powers of the Federation shall be vested in the Courts to which this section relates, being Courts established for the Federation. (2) The judicial powers of a State shall be vested in the Courts to which this section relates, being Courts established, subject as provided by this Constitution, for a State. (3) The Courts to which this section relates, established by this Constitution for the Federation and for the States, specified in Subsection (5) (a) to (i) of this Section, shall be the only superior Courts of record in Nigeria;

and save as otherwise prescribed by the National Assembly or by the House of Assembly of a State, each Court shall have all the powers of a superior Court of record. (4) Nothing in the foregoing provisions of this section shall be construed as precluding;- (a) the National Assembly or any House of Assembly from establishing Courts, other than those to which this section relates, with subordinate jurisdiction to that of a High Court;

(b) the National Assembly or any House of Assembly, which does not require it, from abolishing any Court which it has power to establish or which it has brought into being. (5) This section relates to- (a) the Supreme Court of Nigeria; (b) the Court of Appeal; (c) the Federal High Court; (cc) the National Industrial Court; (d) the High Court of the Federal Capital Territory, Abuja; (e) a High Court of a State; (f) the Sharia Court of Appeal of the Federal Capital Territory, Abuja; (g) a Sharia Court of Appeal of a State; (h) the Customary Court of Appeal of the Federal Capital Territory, Abuja;

(i) a Customary Court of Appeal of a State; (j) such other Courts as may be authorised by law to exercise jurisdiction on matters with respect to which the National Assembly may make laws; and (k) such other Courts as may be authorised by law to exercise jurisdiction at first instance or on appeal on matters with respect to which a House of Assembly may make laws. ​It is crystal clear that Subsections 1 and 2 of Section 6 of the Constitution make provisions and directions for judicial powers or jurisdiction of both Federal and States Courts.

However, Subsection 3, although interfused both the Federal and State Courts made it abundantly clear that the Constitution referred expressly to both Federal and State Courts that are to be called and conferred with the status of superior Courts of record. Thus, both the Federal and State Courts are to enjoy the status and jurisdiction of superior Courts of record.

Subsection 3 above settles it thus: “and save as otherwise prescribed by the National Assembly or by the House of Assembly of a State, each Court shall have all the powers of a superior Court of record.” What the Constitution intended herein is that the States shall have the power to make laws for the creation of State Courts but the Courts to be created must not be given powers above the Courts constitutionally empowered to be superior Courts of record.

It is only the Courts listed in this Constitution, whether Federal or State Courts that have the powers of superior Courts of record. ​The Constitution goes further to list all the Courts under both the Federal and State Courts with the jurisdiction and gamut of superior Courts of record. What this implies expressly is that although the Courts listed under sub-section are State Courts, they are altogether to enjoy the status and jurisdiction of superior Courts of record. See Section 5(a)-(k).

Furthermore, the distinction widens in Part I and Part II thereof of Chapter VII, where the Constitution makes the list of Courts under the State to enjoy the status and jurisdiction of Courts of superior records. See Section 270 for High Court of a State, Section 275 for Sharia Court of Appeal of a State and Section 280 for Customary Court of Appeal of a State.

By the foregoing elucidation and exegesis, it is without argument that although Section 6 (1) provides that “The judicial powers of the Federation shall be vested in the Courts to which this section relates, being Courts established for the Federation”, it is nothing more than a directive that the States should establish their Courts which shall be recognized by the country Nigeria as “Superior Courts of record in Nigeria.” See Subsection 3 of Section 6 of the Constitution.

By Section 6 (1), “The judicial powers of the Federation shall be vested in the Courts to which this section relates, being Courts established for the Federation.” Federation has been defined to include States and a Federal Capital Territory. See Section 2(2) of the 1999 CFRN. The above clearly accords with the spirit and principle of Federalism contemplated in Section 2(2) of the 1999 CFRN (as amended).

The Constitution goes further to clarify the fact that the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria are under the judicial powers of the States when it distinguished that the appointment of the Heads and Judges of these State Courts shall be done by the Governor of the State and not the President. See Sections 271 (1)(2), and 281 (1) (2) respectively of the 1999 Constitution (as amended).

Similarly, the territorial and subject-matter jurisdiction of the State High Court have been made to be different from those of Federal Courts simpliciter in Section 272 (1)(2) of the 1999 Constitution (as amended).

Section 272 (2) inter alia provides that “The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State.” Again, it is the Federal law or the National Assembly that establishes the Federal Courts while it is the State law that establishes the State Courts, which includes the State High Court, Sharia Court of Appeal and Customary Court of Appeal. See Sections 270, 275 and 280 of the 1999 CFRN (as amended).

The interpretative role of this Apex Court was called upon wherein Per IKECHI FRANCIS OGBUAGU, J.S.C, in FASAKIN FOODS (NIG.) LTD. V. SHOSANYA (2006) LPELR-1244(SC) (PP. 11-12, PARAS. E-D) held thus: Let me also reproduce, the provision of Section 239 of the said Constitution in respect of the legislative authority to make laws for the High Court of a State which is vested in a State House of Assembly. “239.

The High Court of a State shall exercise jurisdiction vested in it by this Constitution or by any law in accordance with the practice and procedure (including the service and execution of all civil and criminal processes of the Court) from time to time prescribed by the House of Assembly of the State”.

It could be seen from the above provisions of the said two sections, that while only the National Assembly, could make laws with respect to the practice and procedure in the Federal High Court, the power to make similar laws for the High Court of a State, is vested in the House of Assembly of a State. Furthermore, it is without disputation that the State High Courts work for the State judiciary and its citizens within their jurisdictional boundaries and powers and for the benefit of the State the High Court is situate.

All the foregoing is to reinforce the constitutional provision that the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria are for the respective States of the Federation of Nigeria. In 1988, this Court in clearly interpreting Section 6(5)(a)-(f) of the 1979 Constitution, which is pari materia with the 1999 CFRN (as amended), stated in NWABUEZE V. OKOYE (1988) NSCC (PT.

III) AT 96 LINES 47-54: Section 6(5)(a)-(f) of the 1979 Constitution states the superior Courts of record in Nigeria while Subsections (1) and (2) deal with the vesting of the judicial powers in them. Section 234 of the Constitution establishes a High Court for each State within the Federation.

However, the plank now is who is constitutionally obligated and charged with the responsibility for funding of all capital and recurrent expenditure of 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 Constitution? He who pays the piper dictates the tone of the music. This was what was going on when the Federal Government stepped in to remedy the gory and despicable situations that the State Judicial officers went through in the hands of their Executives.

In order to assuage and cushion this, the National Judicial Council (NJC) was set up to handle the payment of salaries and allowances of their counterparts only as clearly stated or listed in the Constitution. Section 84 of the 1999 Constitution (as amended) is explicit and express on the recurrent expenditure (remuneration, salaries and allowances) of High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria shall be borne by the Federal Government and not the State Government.

In fact, Subsection 7 of Section 84 clearly provides 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 charged upon the Consolidated Revenue Fund of the Federation.

Section 84 (1)(2)(3)(4) and (7) of the 1999 CFRN provides: (1) There shall be paid to the holders of the offices mentioned in this section such remuneration, salaries and allowances as may be prescribed by the National Assembly, but not exceeding the amount as shall have been determined by the Revenue Mobilization 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. (3) The remuneration and salaries payable to the holders of the said offices and their conditions of service, other than allowances, shall not be altered to their disadvantage after their appointment. (4) The offices aforesaid are the offices of President, Vice-President, Chief Justice of Nigeria, Justice of the Supreme Court, President of the Court of Appeal, Justice of the Court of Appeal, Chief Judge of the Federal High Court, Judge of the Federal High Court, President of the National Industrial Court, Judge of the National Industrial Court, Chief Judge and Judge of the High Court of the Federal Capital Territory, Abuja, Chief Judge of a State, Judge of the High Court of a State, Grand Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja, President and Judge of the Customary Court of Appeal of the Federal Capital Territory, Abuja, Grand Kadi and Kadi of the Sharia Court of Appeal of a State, President and Judge of the Customary Court of Appeal of a State… (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 charge upon the Consolidated Revenue Fund of the Federation.

By virtue of Item 21 (e) of the Third Schedule to the Constitution, the Judicial body constitutionally empowered and saddled with the responsibility to “collect, control and disburse all moneys, capital and recurrent, for the judiciary” of the Federal Courts and “Chief Judge of a State, Judge of the High Court of a State, Grand Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja, President and Judge of the Customary Court of Appeal of the Federal Capital Territory, Abuja, Grand Kadi and Kadi of the Sharia Court of Appeal of a State, President and Judge of the Customary Court of Appeal of a State” is the National Judicial Commission (NJC).

It is specifically apparent that this does not include the other Courts created by the Houses of Assembly of the respective 36 States of the Federation. ​The main goal and purpose of this is to wriggle out the control of the salaries and allowances of these judicial officers from the capricious and political control of the States and their Governors. This is meant to give some level of financial independence and liberty to these judicial officers.

The independence of the judiciary has been a major concern to the drafters of the Constitution and this was one of the ways they wanted to orchestrate it. ​Although the NJC still has the constitutional responsibility of handling “capital and recurrent” expenditure for the Federal Courts and some State Courts, it is not for all the Federal and State Courts, except those specifically and expressly mentioned. Thus, where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included. See Per KATSINA-ALU, JSC, in FRN V.

OSAHON & ORS (2006) LPELR-3174(SC) (P. 80, PARAS. B-D). The intent of the drafters to my mind is that the current expenditure of the State High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States be borne by the Federal Government through NJC as earlier postulated. Let me bring out the substance and core role of the NJC in making recurrent and capital expenditure for the judiciary, which includes only the superior Courts of record.

In Section 81 (3) of the 1999 CFRN, it provides: (3) The amount standing to the credit of the- (a) Independent National Electoral Commission, (b) National Assembly, and (c) Judiciary, in the Consolidated Revenue Fund of the Federation shall be paid directly to the said bodies respectively;

in the case of the Judiciary, such amount shall be paid to the National Judicial Council for disbursement to the heads of the Courts established for the Federation and the States under Section 6 of this Constitution. ​My terse and humble opinion herein is to agree with what the learned SAN, Musibau Adetunbi, submitted at page 29 of his Amicus Curiae Brief when he opined that part of the functions of “NJC is to collect the said moneys from the Consolidated Revenue of the Federation with respect to Federal Judiciary and Consolidated Revenue Fund of the State with respect to the State Judiciary.” It is trite democratically that the only recognized and constitutional manner and method both the Federal and State governments finance their capital projects and recurrent expenditure in a financial/fiscal year for the three arms of their Government is through the Appropriation bill/Act or popularly called the “budget”.

Therefore, the capital project of the State judiciary including the High Courts, Sharia Court of Appeal and Customary Court of Appeal (which automatically excludes the salaries and allowances of the Judicial officers in the aforementioned superior Courts of records of the States), is as prescribed in Section 121 of the Constitution as follows: Section 121 of the 1999 CFRN: 121. (1) The Governor shall cause to be prepared and laid before the House of Assembly at any time before the commencement of each financial year estimates of the revenues and expenditure of the State for the next following financial year. (2) The heads of expenditure contained in the estimates, other than expenditure charged upon the Consolidated Revenue Fund of the State by this Constitution, shall be included in a bill, to be known as an Appropriation Bill, providing for the issue from the Consolidated Revenue Fund of the State of the sums necessary to meet that expenditure and the appropriation of those sums for the purposes specified therein. (3) Any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the State shall be paid directly to the heads of the Courts concerned.

By the above, the capital projects for the State Judiciary including those of High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States, are the responsibility of the States to be disbursed to the heads of the State Courts for their capital projects. By the community reading of the provisions cited and the intendment of the constitutional drafters, the capital expenditure of the superior Courts of record in the States with their inferior counterparts are to be borne by the States and not the Federal Government.

It will also amount to duplication of capital projects where the Federal Government is also to bear the responsibility of the capital projects of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States. This will definitely not have been the intention of the drafters of the Constitution. It was meant to be a shared responsibility only in respect of High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States. This was strongly declared in ATTORNEY GENERAL, BENDEL STATE V.

ATTORNEY GENERAL OF THE FEDERATION & ORS (1983) NSCC AT 192 LINES 1-7 thus: As a general principle of constitutional law, it is implicit in the character of a Federal Constitution that neither the Federation nor the States could make laws imposing extra burden on each other… Besides, it was with this full understanding that States by their laws have established their own High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States and have been bearing the responsibility of their capital projects since 1999.

This Court had the opportunity to expound on this principle, Per IGUH, JSC, in TINUBU V. I.M.B SECURITIES PLC (2001) LPELR-3248(SC) (P. 17, PARAS. D-G): …it will be necessary to recall the general principle of law governing the interpretation of our Constitution. This is that such interpretation as would serve the interest of the Constitution and best carry out its object and purpose should be preferred.

Its relevant provisions must be read together and not dis-jointly and where the words of any section are clear and unambiguous, they must be given their ordinary meaning unless this would lead to absurdity or be in conflict with other provisions of the Constitution.

It follows therefore that since the capital and recurrent expenditure of the State judiciary, which includes the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States, must be drawn from the Consolidated Revenue Funds of the States via a budgetary allocation to the state Judiciary, it is the States that are responsible constitutionally for their capital and recurrent expenditure for their State Judiciary, save in circumstances where the Constitution has made the NJC to pay remuneration, salaries and allowances of judicial officers of the State, which includes only High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States.

In this light, one of the roles of the NJC in the Third Schedule of Item 21 (e) to “collect, control and disburse all moneys, capital and recurrent, for the judiciary” must not be muzzled and misinterpreted to mean responsibility to bear both the capital and recurrent expenditure of the Courts mentioned under Section 6 (5) of the 1999 CFRN (as amended) since we have both Federal and State Judiciary.

The literal and most purposive interpretation coupled with the intent of the drafters of the Constitution will be that there are Courts created for the Federation and Courts created for the States and each federating unit ought to bear the brunt of running its capital and recurrent expenditure as provided in the Constitution. The understanding of this has been the long time practice that all the States have been responsible for the capital expenditure of their State Courts until this case of the Plaintiffs.

On the constitutionality/legality of the Presidential Executive Order, it is trite that this cannot override the legislative function of the National Assembly. However, it is constitutionally subject to the constitutional powers of the legislature and judiciary and in pursuance and furtherance of the purpose and intent of a constitutional provision.

Section 5 (1)(a)(b) of the 1999 Constitution provides as follows: 5. (1) Subject to the provisions of this Constitution, the executive powers of the Federation – (a) shall be vested in the President and may, subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation; and (b) shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws.

By the above provision therefore, the Presidential Executive Order is for the “execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws”. We are not unaware of the hanky-panky and subterfuge played by the State Governors/Executives against the independence and financial autonomy of the State judiciary.

It is a pitiable eyesore what judicial officers and staff go through financially in the hands of the State Executives, who often flaunt constitutional and Court Orders to their whims and caprices. Thus, the Presidential Executive Order is meant to facilitate the carrying out of Section 121 (3) of the 1999 Constitution (as amended).

The Presidential Executive Order No. 00-10 by President Buhari provides as follows: 1. (a) Without prejudice to any other applicable laws, legislations and conventions at the State tier of Government, which also provides for financial autonomy of State Legislature and State Judiciary, allocation of appropriated funds to the State Legislature and State Judiciary in the State appropriation laws in the annual budget of the State, shall be a charge upon the Consolidated Revenue Fund of the State, as a First Line Charge. (b) 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). 1.

Determination of the Budget Notwithstanding the provisions of any existing law, convention or regulation, other than the Constitution of the Federal Republic of Nigeria 1999 (as Amended), providing for appropriation or management of funds at the State tier of Government as follows – (a) every State Government of the Federation shall set up a Committee from the commencement of this Executive Order comprising the Commissioner of Finance, Accountant-General of the State, representative of the State Budget Office, Chief Registrars of State High Court, Sharia Court of Appeal and Customary Court of Appeal, (where applicable), the Clerk to the State House of Assembly and the Secretary of the State Judicial Service Committee or Commission; It is in situations like this that Section 5 of the Constitution has envisaged to empower the President directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation, for the execution and maintenance of this Constitution, to make Presidential Executive Order.

In the instant case “for the Implementation of Financial Autonomy for the State Legislature and State Judiciary and for Other Related Matters” which has been a bottleneck to the State Judiciary. Although the President or the Executive cannot assume legislative role and function to make laws for the Federation, a Presidential Executive Order is made subject to the Constitution and for the execution and maintenance of this Constitution and not to subvert the Constitution or derogate from its provisions.

The Constitution remains supreme and any law or Order contrary to it shall stand unconstitutional and void to the extent of its inconsistency. ​This Presidential Executive Order is to aid the State Legislature and Judiciary in ensuring the Constitutional role of their financial autonomy which the State Executive has always denied or flagrantly desecrated. It is my humble opinion that it is not unconstitutional. This issue is therefore resolved against the Plaintiffs.

There is absolutely no merit in delving into the second issue since it has by the first issue been crushed out. Issues one and two are resolved in favour of the Defendant. The claims of the Plaintiffs fail and their reliefs refused. Parties are to bear their respective costs.

ADAMU JAURO, J.S.C. (DISSENTING JUDGMENT): I had the advantage of reading in draft the lead judgment of my learned brother, Musa Dattijo Muhammad, JSC just delivered. I respectfully wish to differ and dissent in part with the judgment, particularly as it relates to issue one formulated for determination by the Plaintiffs.

The Plaintiffs took out an originating summons dated 16th September, 2020 invoking the original jurisdiction of this Court against the Defendant seeking for the determination of the following questions: 1.

“Having regards to the clear and unambiguous provisions of Sections 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 of funding 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 CFRN. 2.

Considering the provisions of Sections 6, 80, 81 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 on the Federal Government is not unconstitutional and unlawful.”

​In the event of a favourable determination of the said questions In their favour, the Plaintiffs therefore sought the following reliefs against the Defendant: 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 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 Courts 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 of 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 of all capital and recurrent expenditure for 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 the 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 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 States’ 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 recurrent and 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. 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 Plaintiff 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 Plaintiffs States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN, for the period of 5th May, 1999 to 31st January, 2020. 8.

AN ORDER compelling the Defendant to refund and pay over to each and every 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 express violation of the provisions of the CFRN and therefore, unconstitutional.”

On the 21st September, 2021, the Defendant filed a notice of preliminary objection brought pursuant to Order 2 Rule 9 of the Supreme Court Rules, 2008 (as amended) and under the inherent jurisdiction of the Supreme Court seeking the following order: “An Order of this Honourable Court dismissing this matter for want of jurisdiction.” The objection is predicated on the grounds that: 1. “The Plaintiffs’ suit constitutes a breach of the Doctrine of Res Judicata. 2. The Plaintiffs’ suit constitutes a breach of the Doctrine of Issue Estoppel. 3.

The Plaintiffs cannot relitigate issues and facts upon which the Federal High Court has made final findings in its judgment. 4. That the judgment of the Federal High Court is still valid and subsisting.”

The sole issue distilled by the Defendant/Objector as having arisen for the determination of his preliminary objection is: “Whether the instant suit does not constitute a breach of the doctrine of res judicata/issue estoppel and an abuse of Court process.”

In response to the objection, the Plaintiffs filed a counter affidavit and written address on 21st September, 2021. The similar sole issue formulated by the Plaintiffs reads: “Whether the Plaintiffs’ suit constitutes a breach of the doctrine of res judicata/issue estoppel and an abuse of Court process.”

Exercising his right of reply, the Defendant/Objector, on 4th October, 2021, filed a further affidavit in support of his objection and a reply on points of law to the Plaintiffs’/ Respondents’ reply to the objection.

ARGUMENTS FOR AND AGAINST THE OBJECTION The crux of the Defendant’s objection is that the Plaintiffs are seeking to re-litigate issues and facts upon which the Federal High Court, Abuja Division had made final findings In its judgment on this matter which sanctioned the failure of disbursement of funds to the judiciary by the Defendant through the State Executives. The Defendant submitted further that in Exhibit ADF1, the judgment the Federal High Court delivered on 13th January, 2014 in Suit No: FHC/ABJ/CS/667/13 – JUDICIAL STAFF UNION OF NIGERIA VS.

NATIONAL JUDICIAL COUNCIL & 73 ORS, it was held inter alia, that the 2nd – 74th Defendants’ failure and refusal to pay the amount standing to the credit of the States’ Judiciary in the Federation/Consolidated Revenue Fund directly to the Heads of Courts in the various States’ Judiciary is a Constitutional breach. It was the Defendant’s submission that the said judgment of the Federal High Court is still valid and binding, having not been stayed nor set aside on appeal.

Consequent upon the above submission, the Defendant/Objector contended that the Plaintiffs’ case is caught by the doctrine of res judicata which prevents them from re- litigating these issues. On the principles guiding the plea of res judicata, the Defendant/Objector placed reliance on COLE V. JIBUNOH & ORS (2016) LPELR – 40662 (SC); IGBEKE V. OKADIGBO (2013) 12 NWLR (PT. 1368) 2251; NTUKS & ORS V. NIGERIAN PORTS AUTHORITY (2007) 10 SCM 127.

​The Defendant also submitted that assuming but without conceding that the doctrine of res judicata does not apply to the case under consideration, the case would still be caught by the doctrine of issue estoppel. The Defendant submitted further that the doctrine of estoppel res judicata is embedded in the principle that there should be an end to litigation and the principle of abuse of Court process as it relates to multiplicity of action.

That rather than commencing a fresh suit this Court, the Plaintiffs ought to have appealed against the judgment of the Federal High Court sitting in Abuja at the Court of Appeal.

In the final analysis of the sole issue formulated for the determination of the objection, the Defendant urged the Court to dismiss the instant suit for being an abuse of judicial process.

​In response to the Defendant’s objection, the Plaintiffs submitted that none of the legal pre-conditions for the application of the doctrine of issue estoppel exist in the case under consideration. It was submitted that the parties in the suit determined by the Federal High Court are not the same as those in the present suit. The Plaintiffs also submitted further that a dispassionate examination of all the processes presented the Courts In both cases, will show beyond doubt that the issues, subject matter and reliefs in both suits are manifestly different, distinct and irreconcilable.

That in suit: No. FHC/ABJ/CS/667/13, the questions for determination and reliefs related to the payment and mode of payments of monies due to the Judiciary to the Heads of Courts of the various states and that the principal and ancillary orders were also directed at the States.

It was submitted further that unlike the case determined by the Federal High Court, Abuja, the instant suit is a dispute between the State Governments and the Federal Government for a judicial pronouncement on who, between them, has the responsibility to fund both the capital and recurrent expenditures of the Courts established under Section 6 of the Constitution.

Secondly and as borne in the second question for determination, that the Plaintiffs have submitted the Executive Order 10 of 2020 signed by the President of the Federal Republic of Nigeria to this Court for it to be struck down on the ground that same is ultra vires the powers of the President.

In the final analysis, counsel urged the Court to dismiss the Defendant’s objection for lacking in merit.

​By way of reply, the Defendant submitted that there is no dispute that both the Plaintiffs and the Defendant herein were defendants in suit determined by the Federal High Court and that the suit was about the interpretation of Section 81 (3) and Section 121 (3) of the Constitution of the Federal Republic of Nigeria. The Defendant argued that the principle of law that for a defence of issue estoppel to succeed, there must be same identity of parties does not mean that all the parties in the previous suit must be same parties in the latter suit.

The Defendant submitted that it is sufficient, where there are several parties who were necessary parties to the issue in the previous suit are the same in the latter suit. The Court was referred to IKENI & ANOR V. EFAMO & ORS (2001) 10 NWLR (PT. 720) 1 @ 17 – 18; PRINCE EYINADE OJO & 3 ORS V. THE ATTORNEY GENERAL OF OYO STATE & 3 ORS (2008) 12 SCM (PT. 2); ALH. HANAFI ZUBAIR V. ALHAJI ABDULLAHI ATANDA KOLAWOLE (2019) 11 NWLR (PT. 1682) 76 SC.

It was the submission of the Defendant that the argument of the Plaintiffs that the present case is a challenge to the constitutionality of the Executive Order 10 of 2020 is misleading.

That a perusal of the Plaintiff’s case especially the questions placed before the Court show clearly that the Plaintiffs are not challenging the powers of the President to issue Executive Order No. 10 of 2020 but that the President by the said order, has shifted the constitutional responsibility of the Federation to fund all the Courts established by Section 6 of the Constitution for the Federation and for the States to the State Government.

On the whole, the Defendant maintained his position that the instant suit is caught by the doctrine of res judicata and issue estoppel and therefore urged the Court to dismiss the suit on the ground that same constitutes an abuse of Court process.

RESOLUTION OF PRELIMINARY OBJECTION The Defendant’s objection is predicated on the fact that the instant suit is caught by the principle of estoppel res judicata and issue estoppel in the fact of the judgment of the Federal High Court delivered on 13th January, 2014 in Suit No: FHC/ABJ/CS/667/13 – JUDICIAL UNION OF NIGERIA VS. NATIONAL JUDICIAL COUNCIL & 73 ORS. The said judgment was attached to the affidavit in support of the Defendant’s Notice of Preliminary Objection and same was marked Exhibit AGF1.

Estoppel per rem judicatam or estoppel of record arises where an issue of fact has been judicially determined in a final manner between the parties or their privies by a Court or Tribunal having jurisdiction in the matter and the same issues come directly in question in subsequent proceedings between the parties and their privies.

It effectively precludes a party to an action, his agents or privies from disputing as against the other party in any subsequent suit, matters which had been adjudicated upon previously by a Court of competent jurisdiction between him and his adversary involving same issues. See UKAEGBU & ORS V. UGOJI & ORS (1991) LPELR – 3338 (SC); ABIOLA & SONS BOTTLING CO. LTD V. 7UP BOTTLING CO. LTD. & ORS (2012) LPELR – 9279 (SC).

Issue estoppel on the other hand is based on the principle of law that a party is precluded from contending the contrary of any specific point which having been once distinctly put in issue has with certainty been determined against him. In the case of IKENI V.

EFAMO (2001) 10 NWLR (PT.720) p. 1, this Court enumerated the elements necessary for determining whether issue estoppel is applicable as:- (a) Whether the parties in the previous proceedings and the current proceedings are same. (b) Whether the issues are same. (c) Whether the issues are material to the cause of action in the previous and in the latter case and (d) Whether the issue has been resolved in the previous case. See BWACHA V. IKENYA & ORS (2011) LPELR – 8105 (SC); ADEDAYO V. BABALOLA & ORS (1995) LPELR – 85 (SC); OSHOBOJA V. AMIDA & ORS (2009) LPELR- 2803 (SC).

I have read with rapt attention the said judgment relied upon by the Defendant in his plea of estoppel res judicata and issue estoppel.

Despite the fact that the parties in the suit are different from those in the instant action, the issues in the said judgment together with the reliefs sought are not the same as those in this proceeding between the parties.

In Suit No: FHC/ABJ/CS/667/13 – JUDICIAL STAFF UNION OF NIGERIA VS. NATIONAL JUDICIAL COUNCIL & 73 ORS, the Plaintiffs approached the Federal High Court via their originating summons filed on 22/10/2012 for the determination of the following questions: 1.

“Whether having regard to the provisions of Sections 81 (3), 121 (3) and 162 (9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) Funds/Amount standing to the credit of the Judiciary in the Federation Accounts/ Consolidated Revenue Fund of the Federation/States shall not be paid directly to the Heads of Court concerned. 2.

“Whether having regard to the provisions of Sections 81 (3), 121 (3) and 162 (9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) Funds/Amount standing to the credit of the Judiciary in the Consolidated Revenue Fund of the States ought to be paid to the Judiciary piecemeal through the States’ Ministry of Finance as and when the Governors (3rd – 74th Defendants) so desire or at their whims and caprices. 3.

Whether the Defendants’ failure to ensure transparency in the annual budgeting, monitoring and implementation of budgets for the States’ Judiciary as the 3rd Arm of Government is a breach of the Fiscal Responsibility Laws and if so, the legal consequence(s) thereof.”

​Even in the absence of the reliefs sought by the Plaintiffs in the aforementioned suit, it is clear that the questions submitted before the Federal High Court are different from those put before this Court by the Plaintiffs in the instant action. While the questions put before the Federal High Court sought clarification as to how the Judiciary receives its funding, i.e. in Suit No. FHC/ABJ/CS/667/13, the questions for determination and reliefs related entirely to the payment and mode of payments of monies due to the Judiciary to the Heads of Courts of the various States.

In contrast to the above, the questions put before this Court in the instant action are targeted at answers as to who among the Federal Government or State Governments of the Federation is constitutionally obligated to fund the capital and recurrent expenditure of the High Court of States, Sharia Court of Appeal of States and Customary Court of Appeal of States created under Section 6(5) of the Constitution.

Secondly, and as borne out in the second question for determination, the Plaintiffs have submitted the Executive Order 10 of 2020 signed by the President to this Court for it to be declared void on the ground of its alleged inconsistency with the provisions of the relevant sections of the Constitution.

​In addition to the above and as rightly noted by the Plaintiffs’ counsel at paragraph 3.14 of the written address regarding the objection, the decision of the Federal High Court sitting in Abuja in Suit No. FHC/ABJ/CS/667/2013 was delivered on 13th January, 2014 while the Executive Order 10 challenged in the instant suit by the Plaintiffs was made in the year 2020.

Flowing from the hills of the above, the Federal High Court could not have decided on the validity or otherwise of the Presidential Executive Order that was not in existence as at the time it adjudicated over the matter relied upon by the Defendant.

Consequently, I am of the view that the conditions required for the successful plea of estoppel res judicata and issue estoppel have not been met by the Defendant, hence, I am inclined without hesitation, to discountenance the objection for lacking in merit.

Having dismissed the Defendant’s objection for lacking in merits, I shall therefore proceed to consider the issues germane to the determination of the instant suit.

​The Plaintiffs are the thirty-six States of the Federation who have a dispute with the Defendant on the constitutional responsibility of funding the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of their respective States. The Plaintiffs maintain that the Defendant is constitutionally responsible not only for the recurrent but also for the capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the Plaintiff States.

Attached to the Originating summons filed by the Plaintiffs is a 63 paragraph affidavit deposed to by one Chinweoke Onumonu Esq., female, Legal Practitioner of No. 22, Street, off IBB Way, Wuse Zone 4, Abuja.

​On the 27th November, 2020, the Plaintiffs also filed a further affidavit in support the Originating Summons. The said further affidavit was deposed to by the same Chinweoke Onumonu Esq. Attached to the said further affidavit is a table containing the total sum purportedly expended by the respective Plaintiff States in funding the capital expenditure of the Courts mentioned therein, for the period of 5th May, 1999 to 31st January, 2020. The said table was marked Exhibit A.

The Presidential Order made by the President of the Federal Republic of Nigeria and issued on 22nd May, 2020 otherwise known as Presidential Executive Order No. 00-10 of 2020, regarding the funding of State High Courts, State Sharia Courts of Appeal and Customary Courts of Appeal was also attached and marked Exhibit B.

On 28th June, 2021, the Plaintiffs filed another further affidavit and attached to the said further affidavit, is a document further showing the total sum so far assertedly expended by the respective Plaintiff States in funding the capital expenditure of their said Courts. The said document attached was marked Exhibit A1.

​On the 29th September, 2021, the Plaintiffs went ahead to file another further affidavit In support of their Originating Summons.

According to the Plaintiffs in paragraph 7 of their further affidavit of 29th September, 2021, Exhibits A and A1 only reflected the total sum so far expended by only twenty (22) States out of the 36 Plaintiff States in funding the capital expenditure of the said Courts, hence the need to file the further affidavit of 29th September, 2021 to put before this Court a supplementary table marked Exhibit A2, reflecting the total sum purportedly expended by Ogun State in funding the Capital Expenditure of the State Courts for the period of 1st January, 2010 to 31st January, 2020.

Lastly, on 4th October, the Plaintiffs filed another further affidavit in support of the Originating Summons. The essence of this further affidavit filed on 4th October, 2021 is to put before this Court, the total sum purportedly expended by Anambra State in funding the Capital Expenditure of the State Coutts for the period of 1st January, 2010 to 31st January, 2020.

In their written address containing arguments in support of their originating summons, the Plaintiffs identified two issues for the determination of questions put before the Court. The said issues are hereunder reproduced as follows: 1.

“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 the States of the Federation of Nigeria, being Courts created under Section 6 of the said Constitution.

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 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 on the Federal Government is not unconstitutional.”

Expectedly, the Defendant reacted by filing a 5 paragraph counter affidavit and written address on 21st September, 2021. The said counter affidavit was deposed to by one Suleiman Jibril, male and Nigerian Citizen of the Civil Appeals Department of the Federal Ministry of Justice. In the said counter affidavit, particularly at paragraphs 4(iv), two exhibits were attached and marked exhibits HAGF1 & HAGF2. Both Exhibits are the judgments of the Federal High Court in suits no: FHC/CS/63/2013 between OLISA AGBAKOBA V. FEDERAL GOVERNMENT & 2 ORS.

And FHC/ABJ/CS/667/13 between the JUDICIARY STAFF UNION OF NIGERIA V. NATIONAL JUDICIAL COUNCIL & GOVERNORS OF THE 36 STATES respectively. Also attached to the counter affidavit of the Defendant are exhibits HAGF 3, 4, 5, 6, 7, 8, 9, 10, 11 & 12 respectively.

At paragraph 3.01 of his written address, the Defendant also formulated two issues to wit: 1.

“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 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 the States of the Federation of Nigeria, being Courts created under Section 6 of the said Constitution. 2.

Whether in the highly improbable event that issue 1 is decided in favour of the Plaintiffs, the Plaintiffs have proven their case to entitle them to the refund of expenses allegedly invested in the recurrent and capital expenditure of the State Judiciaries from May 1999 to date.”

​On 30th September, 2020, the Plaintiffs filed a Reply Affidavit in response to the Defendant’s Counter Affidavit filed on 21st September, 2021. The said Reply Affidavit was deposed to by one Abdulhakeem Badamasi, male, adult, Nigerian Citizen of No.22, Ziguinchor Street, Wuse Zone 4, Abuja. The Plaintiffs also filed a Reply on Points of Law to the Defendant’s written address filed on 21st September, 2021.

On this note, it is pertinent to state that a letter written by the Acting Chief Registrar of this Court with reference SC.655/2020 on 2nd September, 2021 on the direction of The Honourable, The Chief Justice of Nigeria, Hon. Justice Dr. Ibrahim Tanko Muhammad, this Court invited five Senior Advocates of Nigeria as Amici Curiae, to write their contributions/opinions on the suit under consideration.

​The said learned Silks are Asiwaju Adegboyega Awomolo, SAN, Dr. Olisa Agbakogba SAN, Chief Sabastine Hon, SAN, Mahmud Abubakar Magaji, SAN, and last but not the least Musibau Adetunbi, SAN. Their briefs were filed as requested and the distinguish Silks adopted their briefs and made oral submissions in support thereof on Monday the 4th day of October, 2021, the date the suit was heard by this Court.

ARGUMENT AND SUBMISSIONS OF COUNSEL On issue no. 1 distilled by the Plaintiff’s counsel, it was submitted that the Courts to which this dispute is related i.e. the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the Plaintiff States, are Courts established under Section 6 of the CFRN. Counsel referred the Court to the provisions of Section 81 (3) of the CFRN and submitted further that the said provision makes it clear that the funds are for disbursement to the heads of Courts established for the Federation and States under Section 6 of the Constitution.

It was the contention of counsel that a literal interpretation of the provisions of Section 81(3) of the Constitution leads to the conclusion that the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the Plaintiff States to which this dispute relate are to be funded by the Federal Government, in terms of all capital and recurrent expenditure.

​It was submitted that the current practice of the Defendant in funding only the salaries of judicial officers of these States and refusing to fund the capital and other recurrent expenditure thereof, constitutes an infraction of the Constitution.

In addition to the above, counsel further submitted that the provisions of Item 21 (c) of the Third Schedule to the Constitution is also apposite in arriving at the proper interpretation of the aforesaid Constitutional provisions and in resolving the dispute between the Plaintiffs and the Defendant.

That the Constitution under Section 153 established the National Judicial Council (NJC) and set out its functions in Item 21 of the Third Schedule to the Constitution and further provides specifically that the NJC shall have the power to collect, control and disburse all monies, capital and recurrent, for the judiciary.

It was the further submission of the Plaintiffs’ counsel that the Defendant, in breach of the above Constitutional provisions persistently fails to release to the NJC, the capital and recurrent expenditure for the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the Plaintiff States.

Counsel submitted that by virtue of the obligations of funding State judiciary imposed on the Plaintiffs under Section 121 (3) of the Constitution, the resultant effect of the aforesaid breach of the Constitutional provisions by the Defendant is that the respective Plaintiffs States are now funding two sets of Courts.

Counsel argued that the law is that once the provisions of the Constitution are clear and devoid of any form of ambiguity, they should be given their natural meaning without any embellishment. He cited the cases of A.G BENDEL STATE V. A.G FEDERATION (1982) 3 NCLR 1; A.G LAGOS STATE V. EKO HOTELS LIMITED (2006) NWLR (PT. 1011) 378; A.G KANO STATE V. A.G FEDERATION (2007) 6 NWLR (PT. 1029) 164 in support of his argument.

The above position of the Plaintiffs under issue no. 1, was supported by Asiwaju Adegboyega Awomolo, SAN, Dr. Olisa Agbakogba SAN and Chief Sabastine T. Hon, SAN, in their respective briefs before this Court.

In reply to the arguments and submissions of the Plaintiffs’ above, the Defendant’s counsel submitted that the provision of Section 6 of the Constitution, if read together with Chapter VII, Part I & II of the Constitution makes it clear that two sets of Courts are established, one set for the Federation and another established for States.

Counsel submitted further that even though the Constitution merely provided for establishment of State High Courts, Sharia Courts of Appeal and Customary Courts of Appeal, it was the respective State Laws which created them that actually set the operation of these Courts in motion and conferred their powers on them to make them functional for the States.

It was the contention of counsel for the Defendant that since Courts created for the States are in fact given life by the enabling law of the House of Assembly creating them, it is the duty of the Executive arm of Government in every State of the Federation to conceptualize and prepare the annual budget estimates of the entire States capturing particularly, the capital expenditure, present it to the Governor, who then presents it before the House of Assembly for appropriation.

The Defendant’s counsel also submitted that the Federal Government cannot be responsible for the funding of recurrent expenditure of officers for which it has no power to appoint, promote and discipline. He referred the Court to the case of JUDICIAL SERVICE COMMISSION OF CROSS-RIVER STATE & ANOR V. YOUNG (2013) LPELR – 20592 (SC).

Mahmud Abubakar Magaji, SAN, and Musibau Adetunbi, SAN in their respective briefs leaned towards the posture taken by the Defendant regarding who among the Federal and State Governments is constitutionally obligated to fund the capital and recurrent expenditures of the Courts under consideration.

On the constitutionality of the Presidential Executive Order No. 00-10 of 2020, the Plaintiffs submitted that the paragraphs of the said Order which mandates and empower the Accountant General of the Federation to make deductions from the Consolidated Revenue Fund of States for the purpose of funding the expenditure of Courts listed under Section 6(5) of the CFRN, are inconsistent with the provisions of the CFRN 1999, thus null and void.

Counsel submitted further that Section 120 of the Constitution sets out the conditions for any deduction and/or withdrawal from the consolidated revenue fund of the States of the Federation. That any such deductions and/or withdrawals from the Consolidated Revenue fund of States must be authorized by an Appropriation law or any law passed by the House of Assembly of the State.

It was argued that where the provisions of an Order or Law are inconsistent with the express provisions of the Constitution, such Order and/or law will be invalidated to the extent of its inconsistency with the Constitution. The cases of UGBOJI V. STATE (2018) 10 NWLR (PT. 1657) 346; A.G ONDO V. A.G FEDERATION (2002) 9 NWLR (PT. 772) 226; KEKONG V. STATE (2017) 18 NWLR (PT. 1596) 108.

On the strength of the above arguments and submissions, counsel urged the Court to declare the Presidential Executive Order No. 00-10 2020 null and void in view of its inconsistency with the express provision of the Constitution.

​By way of response, the Defendant’s counsel submitted that all that the Presidential Order has done, is to correct the usual practice of transmitting the funds through the State Governors to the State Judiciaries. That Section 162 (4), (5), (6), (7) & (8) of the Constitution is evidence of the fact that the State Governors have their own allocations separate from amounts standing to the credit of the Judiciary.

Counsel contended that it is not the duty of the Federal Government to either capture the proposed capital expenditure of State Judiciaries, nor to ensure their disbursement to the NJC and Heads of Courts.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Counsel submitted that by virtue of Sections 275 & 280 of the CFRN, the establishment of a Sharia Court of Appeal and Customary Court of Appeal of a State, shall solely be at the discretion of any State that requires it. It was submitted further that since there is no legal machinery evidencing the input of the Federal Government in the establishment of these Courts, then it cannot be held liable to incur any capital and recurrent expenditure on these Courts.

Counsel submitted further that if a State considers that it in fact requires a Customary or Sharia Court of Appeal, the presumption of regularity presupposes that such a State has prepared, evaluated and estimated both the capital and recurrent expenditure that will be necessarily occasioned, before committing itself to the establishment of these Courts and captured same in its annual budget estimates.

That it is rather inequitable for States to now demand a refund of alleged expenditures from the Federal Government in this regard, which have not been proven to have been captured in the appropriation Acts for the fiscal years alluded to in the instant suit.

​According to the Defendant, nowhere in the Executive Order 00-10 is the Accountant General of the Federation directed by the President to make deductions from the Consolidated Revenue Fund of a State. That what is contemplated by paragraph 1 (b) is that the Accountant General of the Federation will make deductions from source which is the Federation Account. It was the contention of the Defendant that the deductions will be made from the Federation Account, before the funds get into the Consolidated Revenue Fund of the State.

Counsel contended that by virtue of Section 5 of the Constitution, the action of the President in directing the Accountant General of the Federation to deduct from source, funds standing to the credit of State Judiciaries where such State refused to release same, clearly has constitutional backing.

The Defendant further submitted that assuming but without conceding that the Plaintiffs’ reliefs, particularly those sought under reliefs 6, 7 & 8 of their originating process are competent, equity will not aid the indolent as what the Plaintiffs are currently seeking by those declarations must be denied on the basis of the legal principle of laches and acquiescence; an equitable defense which should protect the Defendant from claims such as in the instant suit, whereby the Plaintiffs have allowed the lengthy delay of approximately 21 years, before proceeding with their claim.

The cases of NNEJI & ORS V. CHUKWU & ORS. (1988) 6 S.C.N.J. 132 AT PAGES 138 – 140; NOIBI V. FIKOLATI (1987) 1 NWLR (PT. 52) 612 @ PG. 632; BANK OF NORTH LTD V. YAU (2001) LPELR- 746 (SC); BAKARE V. LAGOS STATE CIVIL SERVICE COMMISSION & ANOR (1992) LPELR – 711 (SC) were cited in support.

The Defendant’s counsel also submitted that assuming but without conceding that it is the duty of the Federal Government to fund the capital and recurrent expenditures of State judiciaries, the Plaintiff States have not complied with the framework for the process of proposing, executing, completing and applying for refunds of monies expended by a State Government on a Federal Government project.

On the whole, counsel for the Defendant urged the Court to dismiss the suit for lacking In merit.

​The Plaintiffs’ Reply on Points of Law filed on 21st September, 2021 has been duly considered and having summarized the arguments and submissions germane to the resolution of the questions submitted in the Plaintiffs’ Originating process, I shall proceed with the resolution of the issues formulated by the parties.

RESOLUTION To start with, notwithstanding the litany of depositions contained in the affidavit evidence placed before this Court, save for those bordering on refund to the Plaintiffs all sums expended by them in funding the capital and recurrent expenditures of the Courts under consideration, I am of the view that the issues in this suit can be considered within a narrow compass of mere questions of law.

The first issue distilled by the Plaintiffs and the Defendant in the instant suit is centered on the question on who by virtue of the Constitution, is obligated and charged with the responsibility for the funding of all the capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation, being Courts created under Section 6 of the Constitution (supra). The aforementioned Courts are superior Courts of record created under Section 6(5) of the Constitution.

For ease of reference, I shall reproduce the provisions of the said section as follows: “6(1) The judicial powers of the Federation shall be vested in the Courts to which this section relates, being Courts established for the Federation. (2) The judicial powers of a State shall be vested in the Courts to which this section relates, being Courts established, subject to the provisions of this Constitution, for a State. (3) The Courts to which this section relates, established by this Constitution for the Federation and for the States, specified in Subsection 5(a) to (i) of this section shall be the only superior Courts of record in Nigeria; and save as otherwise prescribed by the National Assembly or by the House of Assembly of a State, each Court shall have all the powers of a superior Court of record. (5) This section relates to – (a) the Supreme Court of Nigeria; (b) the Court of Appeal; (c) the Federal High Court; (d) the National Industrial Court; (e) the High Court of the Federal Capital Territory, Abuja; (f) a High Court of a State; (g) the Sharia Court of Appeal of the Federal Capital Territory, Abuja;

(h) a Sharia Court of Appeal of a State; (i) a Customary of Appeal of the Federal Capital Territory, Abuja; (j) a Customary Court of Appeal of a State.

Corollary to the above provisions of Section 6(5) of the Constitution is Section 81 (3) of the same Constitution which provides that: 81(3) Any amount standing to the credit of the- (a) … (b) … (c) Judiciary, in the Consolidated Revenue Fund of the Federation shall be paid directly to the said bodies respectively; in the case of the Judiciary, such amount shall be paid to the National Judicial Council for disbursement to the heads of the Courts established for the Federation and the States under Section 6 of this Constitution.” (underlining mine for emphasis) The provision of Section 162(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) further reinforces the provision of Section 81 (3) reproduced above.

The said section also provides that: “162(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 the Courts established for the Federation and the States under Section 6 of this Constitution.” Further to this,Item 21 (c) of the Third Schedule of the Constitution 1999, explains the powers of the NJC in relation to Sections 81 (3) and 162(9) of the Constitution. The said section provides thus: “21.

The National Judicial Council shall have power to- (e) collect, control and disburse all moneys, capital and recurrent, for the judiciary.” When Item 21 (c) of the Third Schedule of the Constitution is read together with Sections 6, 81 (3) and 162(9) of the Constitution, it is clear that the capital and recurrent expenditures of the Courts created under Section 6(5) of the Constitution is charged upon the Consolidated Revenue Fund of the Federation.

A communal reading of the aforementioned provisions of the Constitution, with emphasis on Section 81 (3) and Item 21 (c) of the Third Schedule of the Constitution, puts it beyond any argument that the drafters of the Constitution intended that the Defendant should fully fund all the capital and recurrent expenditure of all the Courts established under Section 6 (5) of the Constitution.

If the Federal Government is responsible for the capital and recurrent expenditures of the Supreme Court, Court of Appeal, Federal High Court, National Industrial Court, the High Court of the Federal Capital Territory, Sharia Court of Appeal of the Federal Capital and Customary Court of Appeal of the Federal Capital Territory, as Courts listed under Section 6 (5) of the Constitution by disbursing funds due to them to their heads of Courts through the NJC, I see no reason why the High Courts of the States, the Sharia Courts of Appeal and Customary of Appeal of States should be left out, being Courts also listed under the same Section 6 (5) of the Constitution.

To put issues in proper perspective, Section 121 (3) of the Constitution provides for the funding of Courts not listed under Section 6(5) of the Constitution when it provides that: “121(3) Any amount standing to the credit of the – (a) House of Assembly of the State; (b) Judiciary; In the Consolidated Revenue Fund of the State shall be paid directly to the said bodies respectively; in the case of the Judiciary, such amount shall be paid directly to the heads of the Courts concerned.” While the above provision seeks to reinforce the financial autonomy of the State Judiciary, it also specifically provides that any amount standing to the credit of the Judiciary of a State in the Consolidated Revenue Fund of the State shall be paid directly to the heads of Courts concerned.

This is in sharp contrast to the wordings of Section 81 (3) of the Constitution which provides that the sum standing to the credit of the Judiciary in the Consolidated Revenue Fund of the Federation shall be paid to the NJC for onward transmission to the heads of Courts created under Section 6(5) of the Constitution.

The analogical deduction is that the Constitution vide its provision in Section 121 (3), vests the responsibility of funding Courts not listed under Section 6(5) of the Constitution through the head of Courts from the Consolidated Revenue Fund of the State ​There are legion of cases of this Court on the rules guiding the Court when faced with a question predicated on interpretation of statutes. The law is well settled that for the interpretation of the statutes, once the words used are clear and free from ambiguity, they should be accorded their natural meaning without any embellishments.

On the cardinal principle governing the interpretation of constitutional provisions, this Court, per Oguntade JSC, in the case of RASHIDI ADEWOLU LADOJA V. INEC (2007) LPELR -1738(SC) held that: “In interpreting a provision of the Constitution, the primary function of the Court is to search for the intention of the lawmaker. Where a constitutional provision is clear and unambiguous, the Court must give the words their ordinary meaning unless it will lead to absurdity and inconsistency with the provisions of the Constitution as a whole.

The true meaning of the words used and the intention of the legislature in a Constitution can be best properly understood if the Constitution is considered as a whole. It is a single document and every part of it must be considered as far as relevant in order to get the true meaning and intent of any particular portion of the enactment. Also, a Constitution must be interpreted and applied liberally. It must always be construed in such a way that it protects what it sets out to protect or guides what it sets out to guide.

By necessity, a constitutional provision must be interpreted broadly…” See also HON. MICHEAL DAPIANLONG & ORS V. CHIEF (DR.) JOSHUA CHIBI DARIYE & ANOR (2007) LPELR-928(SC); BOLA TINUBU V. I.M.B. SECURITIES PLC (2001) LPELR – 3248(SC). I should bear in mind that where the words of the legislature are clear, there is no room for applying any of the other principles of interpretation.

It is very clear that where the words used in expressing the intention of the legislature in the above provision are plain and unambiguous, in interpreting the Constitution, the Court must endeavor to give the words used in the Constitution or statute its ordinary meaning unless such interpretation will lead to absurdity or inconsistency with the rest of the legislation.

Having carefully examined the provisions of relevant sections of the Constitution regarding the issue under consideration, It is safe to answer the first question distilled by both parties in the affirmative that having regard to the clear, lucid and unambiguous provisions of Sections 6, 81 (3), 162(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), read together with Item 21 (c) of the Third Schedule thereof, Defendant is 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 the States of the Federation of Nigeria, being Courts created under Section 6(5) of the Constitution.

The first issue is therefore resolved in favour of the Plaintiffs and against the Respondent.

The Plaintiffs under issue no.2 have called upon this Court to declare the Presidential Executive Order 00-10 of 2020 unconstitutional for violating the Constitutional provisions vesting responsibility for funding the High Courts of States, Sharia Courts of Appeal of States and Customary Courts of Appeal of States on the Federal Government.

Supposedly exercising his Executive powers under Section 5(1) of the CFRN 1999 (as amended), the President of the Federal Republic of Nigeria and Commander-in-Chief of the Armed Forces, on the 20th day of May, 2020 signed the Presidential Executive Order 00-10 of 2020. Paragraph 8 of the Executive Order provides for the citation as follows: “This ORDER may be cited as the Implementation of Financial Autonomy of State Legislature and State Judiciary Order, 2020.” The Order is targeted at strengthening the financial autonomy of State Legislature and Judiciary.

The Executive Order empowers the Accountant General to deduct from source in the course of Federation Accounts Allocation from 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). The opening paragraph of Section 5(1) which confers executive powers on the President has put a caveat of a limitation on the exercise of such powers.

The powers of the President is made subject to the provisions of the Constitution. The President exercises executive powers under the Constitution and although the powers are awesome, they have known limits. The exercise of the powers is kept within bounds by the intervention of the rule of law. ABACHA V. FRN (SUPRA) 513; ODOFIN BELLO V. STATE (1966) 1 ALL NLR (REPRINT) 217; ATTORNEY GENERAL LAGOS STATE V. ATTORNEY GENERAL OF THE FEDERATION (2004) 18 NWLR (PT. 904) 1 AT 109 PARA D-H; ESHUGBAYI ELEKO V.

OFFICER ADMINISTERING THE GOVERNMENT OF NIGERIA (1931) AC 662; MILITARY GOVERNOR OF LAGOS STATE V. OJUKWU (1986) 1 NWLR (PT. 18) 621. Consequently, when an Executive Power derogates from the provisions of the Constitution, such an order, with the principles of checks and balances in place under our constitutional democracy, would be subject to a judicial attack.

Empowering the Accountant General to deduct from source in the course of Federation Accounts Allocation from money allocated to any State of the Federation that fails to release allocation meant for the State Legislature and State Judiciary when the funding of the capital and recurrent expenditures of the Courts under consideration is that of the Federal Government, runs contrary to the tenets of federalism. Where the Constitution provides a particular method for doing something and it is done contrary to the said method, it becomes unconstitutional.

See Section 1 (1) & (3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). To this extent, the said Presidential Executive Order 00-10 is illegal, void and unconstitutional for being in conflict with the Constitution of the Federal Republic of Nigeria, 1999 (as amended). This issue is hereby resolved against the Defendant and in favour of the Plaintiffs.

The last issue for consideration is whether the Plaintiffs have proven their case to entitle them to the refund of the total sum expended on the recurrent and capital expenditure of their various State Judiciaries from May 1999 to date.

This is where the affidavit evidence of the parties come into consideration. The Plaintiffs through Exhibits A and A1 attached to their affidavit evidence, reflected the total sum so far purportedly expended by only twenty (22) States out of the 36 Plaintiff States in funding the capital expenditure of the said Courts between 5th May, 1999 to 31st January, 2020.

By way of further affidavit, the Plaintiffs brought in Exhibit A2 and A3, reflecting the total sum purportedly expended by Ogun State and Anambra State in funding the Capital Expenditure of their State Courts for the period of 1st January, 2010 to 31st January, 2020. The Defendant submitted that enquiry will not aid the indolent Plaintiffs who have allowed the lengthy delay of approximately 21 years, before proceeding with their claim.

Also that the Plaintiffs States have not complied with the framework for the process of proposing, executing, completing and applying for refunds of monies expended by a State Government on a Federal Government project.

Having gone through exhibits A, A1, A2 and A3, and the depositions in support, I am of the view that these documents cannot be used as the parameters to determining the exact amount spent by the Plaintiffs’ States in funding the capital and recurrent expenditures of their various states over the years. The documents to me, appear to be a table hurriedly prepared in anticipation of this suit and I find it difficult to trace them to a source. Should the documents be classified as public documents? I do not know. The documents in my firm view, are not reliable.

​The law remains that when a party wishes the Court to believe any fact, then the burden of proof as to that fact rests on that party. The party bearing the legal burden of proof must first make out a prima facie case in his favour. This means that he has to adduce enough evidence which, if believed, may reasonably justify a finding that the facts he seeks to prove exist. But if the Court disbelieves his evidence then the burden is not discharged. This principle of law is basic that I do not find it expedient to cite any authority in support.

The issue is resolved in favour of the Defendant and against the Plaintiffs. On the whole, the Originating summons of the Plaintiffs succeeds in part, Questions 1 and 2 of the Originating summons are answered in favour of the Plaintiffs. Reliefs 1, 2, 3, 4, 5, and 9 are granted while reliefs 6, 7, and 8 of the Originating summons are refused. For clarity sake, it is hereby: 1.

“DECLARED 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 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 Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN. 2.

DECLARED that by virtue of the clear, lucid and unambiguous provisions of 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 of all capital and recurrent expenditure for 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.

DECLARED 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 the Customary Courts of Appeal of the States of the Federation of Nigeria being Courts created under Section 6 of the CFRN is unconstitutional. 4.

DECLARED that 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 States’ 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.

ORDERED that the Defendant shall from the date of the delivery of this judgment, fund all recurrent and 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. 9. ORDERED that the Presidential Executive Order No. 00-10 of 2020 made by the President of the Federal Republic of Nigeria on 22nd May, 2020 be set aside having declared same unconstitutional on the ground that it is in express violation of the provisions of the CFRN.”

Lastly, the Court in the course of the resolution of the issues has benefitted from the immense and scholarly contributions of the learned silks invited as Amici Curiae. The Court is grateful for the industry put, in coming up with the beautiful masterpieces. Parties are to bear their respective costs in the suit.

EMMANUEL AKOMAYE AGIM, J.S.C. (DISSENTING JUDGMENT): I had a preview of the Judgment delivered by my learned brother, LORD JUSTICE MUSA DATTIJO MUHAMMAD, JSC. With due respect to His Lordship, I am constrained to disagree with the views expressed in the judgment except the validity of order 00-10.

On 17-9-2020, the plaintiffs herein filed an originating summons in this Court against the defendant. The questions raised therein for determination read thusly – 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, Sharia 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.

The reliefs sought for in the originating summons read thusly – 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 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 of 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 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’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 Plaintiff 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.

The originating summons is supported by an affidavit of 63 paragraphs and plaintiffs’ written brief of argument on 27-11-2020. The plaintiffs filed a further affidavit of 11 paragraphs in support of the originating summons. The list of the particulars of the capital expenditures of State Courts by Adamawa, Bayelsa, Bauchi, Benue, Borno, Cross River, Delta, Ebonyi, Edo, Ekiti, Enugu, Gombe, Imo, Katsina, Kebbi, Nasarawa, Niger, Rivers, Sokoto and Zamfara States was attached to the said further affidavit and marked as exhibit A.

The plaintiffs filed a second further affidavit in support of the originating summons.

The defendant filed its memorandum of conditional appearance, counter affidavit and written address in opposition to the originating summons. The plaintiffs filed an affidavit in reply to the said defendant’s counter affidavit.

​The defendant filed a notice of preliminary objection to the suit, which notice is supported by an affidavit of 5 paragraphs. The plaintiffs filed a counter affidavit and written address in reply to the notice of preliminary objection. The defendant filed a further affidavit in support of the Notice of preliminary objection and a written reply on points of law to the plaintiffs’ argument in response to the preliminary objection.

Considering that the subject matter of this suit is a public interest matter of great importance and significance, this Court invited written opinion from some of our distinguished Senior Advocates of Nigeria, as amici curiae on the subject matter of this suit. Five of them filed their respective briefs. They are Asiwaju Adegboyega Awomolo SAN, Dr Olisa Agbakoba, SAN, Chief Sebastine T. Hon SAN, Mahamud Abubakar Magaji, SAN and Musibau Adetunbi SAN.

Let me first determine the defendant’s preliminary objection as it challenges the jurisdiction of this Court to entertain this suit before I delve into the consideration of the issues raised for determination in the originating summons if need be.

​The ground for the objection as contained in the notice of preliminary objection and supporting affidavits is that this suit violates the rules of res judicata and issue estoppel because the issues in this Suit have been judicially determined by the Federal High Court of Nigeria on 13-1-2014 in Suit No. FHC ABJ/CS/667/2013, between JUSUN v NJC, Attorney General of the Federation and the plaintiffs herein, and the decision is subsisting and conclusive as the parties did not appeal against it and thereby accepted it as correct and binding upon them.

I have carefully read and considered the arguments of both sides on this issue.

​Learned Attorney General of the Federation argued that the plaintiffs herein and the defendant were the defendants in the Federal High Court Suit No.

FHC/ABJ/CS/667/2013, that the issues determined in that case are the same with the issues raised for determination in this case, that the reliefs granted by the said judgment of the Federal High Court have finally determined the issues for determination in the present suit and that the Presidential Executive Order 00-10 of 2020 is in furtherance of the said 13-1-2014 judgment of the Federal High Court as it strengthens the implementation of the financial autonomy of State judiciaries, that this Suit seeks to re-litigate the issues already judicially determined by the judgment of the Federal High Court on 13-1-2014, that the interpretation of Ss. 81 and 121 of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution) already judicially determined by the said Federal High Court judgment is being reopened here, that the subject matter in both cases is the financial autonomy of the Judiciary as it relates to funding by either the States or the Federal Government, that the Federal High Court that delivered the judgment is a Court of competent jurisdiction, that the subject matter of this suit is res judicata and caught by issue estoppel and is therefore not open to re-litigation and not within the jurisdiction of this Court.

Learned SAN for the plaintiffs has argued in reply that the parties in the two cases are different because the suit in the Federal High Court is by Judicial Staff Union of Nigeria as plaintiff against the National Judicial Council and 73 others as defendants, while the present suit in this Court is by the Attorney General of Abia State and 35 others as plaintiffs against the Attorney General of the Federation, that the subject matter and issues in the two cases are manifestly different and irreconcilable, that the questions for determination and reliefs in Suit No.

FHC/ABJ/CS/667/2013 related entirely to the mode of payments of monies due to the judiciary and contended that it should be paid directly to the Heads of Courts and not through the Governments of each State, that the issue in dispute, in this case, is who as between the Federal Government and the State Governments have the constitutional responsibility to fund the capital and recurrent expenditures of Courts established by the Constitution in its Section 6, that a second issue is whether the presidential executive order 10 of 2020 that enforces the funding of the said expenditures of Courts established by Section 6 of the Constitution for states is not ultra vires the powers of the President and therefore unconstitutional and void, that the Federal High Court lacked the Jurisdiction to determine the dispute that was essentially between the Federal Government and State Governments and that therefore the judgment it rendered is not that of a Court of competent jurisdiction and cannot be the basis of a plea of res judicata and issue estoppel.

Let me now consider the merits of the arguments of both sides. It is not in doubt that the plaintiffs and the defendant herein were defendants in Suit No FHC/ABJ/CS/667/2013, that the judgment of the Federal High Court delivered on 13-1-2014 in that Suit was not appealed against by any of the parties to the Suit, that by not appealing against it, they accepted the judgment as correct, conclusive, subsisting and binding on them. See Iyoho V Effiong (2007) 7 SC (Pt.iii) 90 and Dabup V Kolo (1993) 12 SCNJ 1.

​The judgment binds the parties herein because they were parties to the dispute that was determined by it and for the further reason that it is a judgment in rem as it is contra mundum, in that it binds the whole world and not only the parties to the Suit. A judgment in rem is a judgment that determines the status of some persons or thing or subject matter and binds all persons interested in the status of the property, subject matter or person.

It is a judgment in rem because it determines the position or status of the Constitution on the payment of funds standing to the credit of the Judiciary in the Federation account or Consolidated Revenue Fund of the Federation directly to the Heads of Court of each State and not to them through their State Governments.

The judgment binds all persons, whether parties to the Suit or not, on the issue or subject matter of whether the monies standing to the credit of the Judiciary in the Federation Account or Consolidated Revenue Fund should be paid directly to the Heads of Courts in each State or through their respective State Governments. The judgment stops anyone from raising the above issue in any judicial proceedings. It is conclusive against the whole world.

It therefore operates as estoppel per rem judicata or issue estoppel to bar any further Suit or litigation by anybody on the same subject matter or issue. As this Court held in Ogboru & Anor v Uduaghan & Ors (2011) LPELR- 8236 (SC) “A judgment in rem may be defined as the judgment of a Court of competent jurisdiction determining the status of a person or thing as distinct from the particular interest of a party to the litigation.

Apart from the application of the term to persons, it must affect the “res” in the way of condemnation, forfeiture, declaration, status or title. (a) Examples are the judgment of a Court over a will creating the status of administration. (b) Judgment in a divorce by a Court of competent jurisdiction dissolving a marriage declaring the nullity or affirming its existence. (c) Judgment in an election petition. The feature of a judgment in rem is that it binds all persons whether a party to the proceedings or not.

It stops anyone from raising the issue of the status of persons or persons or things, or the rights or title to properly litigated before a competent Court. It is indeed conclusive against the entire world in whatever it settles as to status of the person or property. All persons whether party to the proceedings or not are stopped from averring that the status of persons is other than the Court has by such judgment declared or made it to be”. Okpalugo vs. Adeshoye (1996) 10 NWLR pt. 476, pg. 77, Fointrades Ltd. vs Uni Association Co. Ltd. (2002) 8 NWLR Pt. 770, pg. 699., Ogbahon vs. Reg.

Trustees CCCG (2002) 1 NWLR Pt. 749, pg. 675, Olaniyan vs Fatoki (2003) 13 NWLR pt. 837, Pg. 273.” In Dike & Ors v. Nzeka II & Ors (1986) LPELR – 945 (SC), this Court also held thusly- “It is therefore necessary to have a clear idea of the distinction between a judgment in rem and a judgment in personam. A judgment is said to be in rem when it is an adjudication pronounced upon the status of some particular thing or subject matter by a Tribunal having the jurisdiction and the competence to pronounce on that Status.

Such a judgment is usually and invariably founded on proceedings instituted against or on something or subject-matter whose status or condition is to be determined. It is thus a solemn declaration on the status of some persons or thing. It is therefore binding on all persons in so far as their interests in the status of the property or person are concerned. That is why a judgment in rem is a judgment contra mundum – binding on the whole world – parties as well as non- parties, A judgment in personam, on the other hand, is on an entirely different footing.

It is a judgment against a particular person as distinguished from a judgment declaring the status of a particular person or thing. A judgment in personam will be more accurately called a judgment inter parties. A judgment in personam usually creates a personal obligation as it determines the rights of parties inter se tor or in the subject-matter in dispute whether it be land or other corporeal property or liquidated or unliquidated demand, but does not affect the status of either the persons to the dispute or the thing in dispute.”

Let me now consider if the subject matter of this Suit and the issues raised for determination here are the same with the subject matter of Suit No. FHC/ABJ/CS/667/2013 and the issues determined in the judgment of 13-1-2014 therein.

The questions raised for determination in Suit No.

FHC/ABJ/CS/667/2013 and the reliefs claimed for are stated in the judgment of the Federal High Court in that Suit in exhibit AC1F1 as follows- “QUESTIONS FOR DETERMINATION (1) Whether having regard to the provisions of Sections 81 (3), 121(3) and 162(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) funds/amount standing to the credit of the Judiciary in the Federation Accounts/Consolidated Revenue Fund of the Federation/States shall not be paid directly to the Heads of Court concerned. (2) Whether having regards to the provisions of Sections 81(3) and 121(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) the Funds/Amounts standing to the credit of the Judiciary in Consolidated Revenue in piecemeal through the States Ministry of Finance as and when the Governors (3rd – 74th Defendants) so desire or at their whims and caprices. (3) Whether the Defendant’s failure to ensure transparency in the annual budgeting, monitoring and implementation of budgets for the States Judiciary as the 3rd Arm of Government is a breach of the Fiscal Responsibility Act, 2007 cum State’s relevant Fiscal Responsibility laws and if so, the legal consequence(s) thereof.

Upon the determination of the above questions, the plaintiff seeks the following reliefs: RELIEF SOUGHT 1. A Court Declaration that the defendant’s failure, neglect and or refusal to pay the funds/Amounts standing to the credit of the State’s Judiciary in the Federation/Consolidated Revenue Fund directly to heads of Courts in the various State’s Judiciary is a constitutional breach which has to be abated forthwith. 2.

A Court Declaration that the piece-meal payments/allocations of funds through the State’s Ministry of Finance to the States Judiciary at the defendant’s pleasure, is unconstitutional, unprocedural, cumber-some, null, void and has to be abated forthwith. 3. A Court Declaration that the defendants are in breach of the relevant provisions of the Fiscal Responsibility Act, 2007 and the relevant States Fiscal Responsibility Laws in the way and manner of their disbursing funds to the state’s Judiciary, annual budgeting, monitoring cum implementation of budgets for the State’s Judiciary. 4.

A Court order mandating/compelling the Defendants to comply with the provisions of Sections 81 (3) and 162 (9) of the 1999 Nigerian Constitution (as amended) in the disbursement of Funds to the Heads of Courts forthwith. 5. A Court Order compelling the defendants to henceforth ensure transparency in the way and manner of disbursing funds standing to the credit of the State’s Judiciary by publishing the Disbursement schedules regularly as statutorily required for public consumption/scrutiny. 6.

An Order of perpetual injunction to perpetually restrain the Defendants, their agents assigns, privies etc from committing any further breach of the aforesaid Constitutional/Statutory provisions. 7. Such further and or other order(s) as the Justice of this case may demand.”

The concluding part of that Judgment reads thusly – “DISPOSITION From the foregoing paragraphs of this judgment, the plaintiff’s case succeeds substantially. This Court answers the questions for determination as follows – (1) Yes, Funds should be paid directly to Heads of the Courts concerned. (2) No. (3) No. RELIEFS 1.

That a declaration is hereby made that the 2nd – 74th Defendant’s failure, neglect and or refusal to pay the Funds/Amount standing to the credit of the State’s Judiciary in the Federation/Consolidated Revenue Fund directly to the Heads of Courts in the various States Judiciary is a constitutional breach which has to be abated forthwith. 2.

That an order is hereby made that the piece-meal payments/allocations of funds through the States Ministry of Finance to the State’s Judiciary at the 2nd- 74th Defendant’s pleasure, is unconstitutional, un-procedural, cumbersome, null, void and be abated forthwith 3. That an Order is hereby made mandating/compelling the 2nd- 74th Defendants to comply with the provisions of Sections 81 (3), 121 (3) and 162 (9) of the 1999 Nigerian Constitution (as amended) in the disbursement of funds to the Heads of Courts forthwith. 4.

That an Order of perpetual injunction is hereby made restraining the 2nd – 74th Defendants, their agents’ assigns, privies etc from committing any further breach of the aforesaid constitutional/statutory provisions. This Court also makes the following Ancillary Orders – i. That the Accountant General of the federation be served as well as comply with the judgment and orders of this Court forthwith. ii. That the Accountant Generals of the States of the Federal Republic of Nigeria be served and comply with the judgment and Orders of this Honourable Court forthwith. iii.

That the President of the Senate, Honourable Speaker of the House of Representatives, Speakers of States Assemblies of the Federal Republic of Nigeria as well as the Auditor-Generals of the Federation and States be also served with the judgment and Orders of this Honourable Court and comply forthwith. iv. There shall be no Order to cost.”

​The questions raised for determination in this Suit and the reliefs sought for herein are already reproduced at pages 1-5 of this judgment. It is glaring that the questions raised for determination and the reliefs claimed for in Suit No. FHC/ABJ/CS/667/2013 are completely different from the questions raised for determination and the reliefs claimed for in this suit. Therefore, the subject matter of the two cases are different. The subject matter of Suit No.

FHC/ABJ/CS/667/2013 is whether the Federal Government should pay monies standing to the credit of the Judiciary in Federation Account or Consolidated Revenue Fund directly to the Heads of Court in each State or indirectly through their respective State Governments to the Heads of Courts. The subject matter of our present Suit is whether the Federal Government has the Constitutional responsibility to fund the capital and recurrent expenditures of Courts created by Section 6 of the 1999 Constitution for the States.

​It is settled law that a plea of res judicata or issue estoppel cannot be validly raised and founded on the basis of a previous judgment of a Court that finally determined a subject matter, issues and reliefs different from the subject matter, issues raised and reliefs sought for in the present case. The plea is made on the basis that the subject matter of the dispute or an issue in the present case had been finally judicially determined in a previous suit between or involving the parties in the present case by a Court of competent jurisdiction.

The plea is made to bar a party from relitigating a matter or issue that has been finally judicially determined by a Court of competent jurisdiction in a previous case and to bar a Court from exercising its Jurisdiction to admit and try a matter or issue that has been finally Judicially determined by a Court of competent jurisdiction in a previous case. See Ntuks & Ors v NPA (2007) 10 SCM 127, APC v PDP & Ors (2015) LPELR – 24587 Oyerogba V Olaopa (1998) 13 NWLR (Pt 583) 509 at 528 and Adeyemi- Bero v LSPDC (2013) ALL FWLR (Pt) 701) 1447 at 1505.

It is glaring from the foregoing that there is no basis for the plea of res judicata and issue estoppel made by the defendant herein. The plea is not valid. Therefore, the objection to the competence of this Suit and the jurisdiction of this Court to entertain this suit on the basis of such a plea fails on that ground. The defendant’s preliminary objection is hereby dismissed for lack of merit.

I will now proceed to determine the merits of the questions raised for determination in this suit. The questions are already set out in pages 1 to 5 of this judgment. I will determine them together because the determination of question 1 would invariably decide question 2 that is obviously predicated upon it. I have carefully read and considered all the arguments in the respective briefs on these issues.

All sides agree that by virtue of Ss. 81 (3) (c), 84 (1), (2), (3), (4) and (7) and Item 21 (e) of Part 1 of the Third Schedule to the 1999 Constitution, the recurrent expenditure of Courts created by Section 6 of the 1999 Constitution for the Federation and for the States shall be funded from the amount standing to the credit of the judiciary in the Consolidated Revenue Fund and Federation Account.

The defendant in paragraph 4 (IX), (X), (XI), (XII), (XIII), (XV), (XVI), (XVIII), (XX), (XXV) of its counter affidavit states thusly- “(ix) That it is not the Constitutional duty of the Federal Government to fund the recurrent expenditure of the Judicial officers, save for the Superior Courts of record created under Section 6 of the Constitution for the Federation and for the States. (x) That there are expenditure charged by the Constitution and expenditure which need the appropriation of the legislature before withdrawal from the Consolidated Revenue Fund of the Federation and of the States, to be authorized. (xi) That the funding of the Judiciary which is to be undertaken by the Federal Government, are spelt out under Section 84 of the Constitution. (xii) That funds spelt out under Section 84 of the Constitution are recurrent expenditures already charged by the Constitution. (xiii) That other funds not charged by the Constitution, require Legislative appropriation before they can be withdrawn from Consolidated Revenue of the Federation. (xv) That the Federal Government has since May 1999 been funding recurrent expenditure of State Judiciaries as charged by Section 84 of the Constitution and captured in the annual budget estimates presented to the National Assembly respectively, in the fiscal years alluded to in the instant suit.

(xvi) That all Government Capital Expenditure are to be captured in the estimate included in the appropriation bill of the State Houses of Assembly. (xviii)That the State High Courts, the Customary Courts of Appeal and the Sharia Courts of appeal are in the category of Courts created under Section 6 of the Constitution. (xx) That the capital and recurrent expenditure of Courts, not created under Section 6 of the 1999 Constitution (as amended) are to be funded by their respective State Governors. (xxv) That the recurrent expenditure of both the Federal and State Judiciaries are funds charges by the Constitution which needs no legislative appropriation to authorize its disbursement or withdrawal.”

The parties herein do not agree that the Constitution requires that all the expenditures including capital expenditure of the Courts created by Section 6 of the 1999 Constitution for the states be funded from the amount standing to the credit of the judiciary in the Consolidated Revenue Fund and Federation Account.

The plaintiffs contend that the amount standing to the credit of the judiciary in the Consolidated Revenue Fund and Federation Account must be used to fund all the expenditures, including capital expenditures, of all Courts, federal and states, established under Section 6 of the Constitution. The defendant argues in reply that the expenditures to be funded from that amount does not include the capital expenditure of Courts created by Section 6 of the 1999 Constitution for the States.

Let me now determine the merit of this dispute. I think that the key to the resolution of this dispute lies in the provisions of Section 81(3) and Section 162(9) of the 1999 Constitution and Item 21 (e) of Part 1 of the Third schedule thereto.

Section 81(3) provides that- “The amount standing to the credit of the (a) Independent National Electoral Commission (b) National Assembly, and (c) Judiciary. in the Consolidated Revenue Fund of the Federation shall be paid directly to the said bodies respectively; in the case of the judiciary, such amount shall be paid to the National Judicial Council for disbursement to the heads of the Courts established for the Federation and the State under Section 6 of this Constitution.

Section 162(9) provides that – 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 state under Section 6 of this Constitution. Item 21(e) of Part 1 of the Third Schedule thereto provides that – The National Judicial Council shall have power to – (e) collect, control and disburse all moneys, capital and recurrent for the Judiciary.

The use of the general term, “the amount” in Section 81(3) shows that the Constitution intends that it is all the amount standing to the credit of each body therein that should be paid directly to it. Equally, the use of the general and all-embracing term “Any amount” in Section 162(9) shows that the Constitution intends that it is all the amount standing to the credit of the judiciary in the Federation Account that should be paid directly to it.

There is nothing in those provisions limiting or restricting the amount to be paid directly to the judiciary to only the amount for all the expenditures of the Federal Courts established by S.6 of the Constitution and only the recurrent expenditures of the state Courts also created by the same section. There is nothing in those provisions excluding the amount required for the capital expenditures of state Courts from the amount to be paid directly to the judiciary from the Consolidated Revenue Fund and Federation Account.

Section 81(3) and Section 162(9) of the Constitution did place any limit on the amount to be paid to the judiciary out of the amount standing to its credit in the Consolidated Revenue Fund and Federation Account and did not direct the judiciary on how and what it should spend the amount paid to it from the said Fund and Account for the federal and state Courts created by its Section 6.

It is obvious from the clear words of the said Section 81(3)(C) and Section 162(9) that the Constitution intends that the expenditures of federal and state Courts established under its Section 6 be funded directly from the Consolidated Revenue Fund and Federation Account. ​The Constitution did not intend that the amount paid to the NJC should be applied to the funding of the said Federal and States Courts differently or discriminatorily.

If it had intended that the funding of Federal Courts from that amount should be different from the funding of the Section 6 State Courts from the said amount, it would have stated so. It therefore violates Section 81(3)(c ) and Section 162(9) of the Constitution to use the amount paid to the NJC to fund the capital and recurrent expenditures of S.6 Federal Courts and fund only the recurrent expenditure of Section 6 State Courts and refuse to fund their capital expenditures.

The Constitution in those provisions stated that the amount paid to the NJC from the Consolidated Revenue Fund and Federation Account should be disbursed to the said Courts and did not state that the amount be disbursed to them differentially.

The Federal and State Courts created by Section 6 of the Constitution jointly own any amount standing to the credit of the judiciary in the Consolidated Revenue Fund and Federation Account and have equal rights to the use of the said amount, in the absence of any provision in the Constitution to the contrary. ​Learned Attorney General of the Federation has relied on Section 84 of the 1999 Constitution to justify the refusal to fund the capital expenditure of Section 6 State Courts from the amount standing to the credit of the judiciary in the Consolidated Revenue Fund and Federation Account because it charged the remuneration, salaries and allowances of the Judges of Courts listed in Section 6(5) of the 1999 Constitution on the Consolidated Revenue Fund.

This argument is defeated by Section 84(4) of the Constitution that shows that the remuneration, salaries, allowances of judges of both federal and state Courts listed in Section 6(5) of the 1999 Constitution are charged on the Consolidated Revenue Fund.

It is contradictory to justify the failure to fund Section 6 States Courts capital expenditures on the ground that the remuneration, salaries, and allowances of judges of such Courts are charged on the Consolidated Revenue Fund and yet justify the funding of capital projects of Section 6 Federal Courts from the amount meant for funding both federal and state Courts, when the remuneration, salaries, allowances of Judges of Federal Courts are also charged on the Consolidated Revenue Fund.

The amount standing to the credit of the Independent National Electoral Commission in the Consolidated Revenue Fund is used to fund its capital project. Yet the remuneration, salaries and allowances of the Chairman and members of the Independent National Electoral Commission are charged on the Consolidated Revenue Fund.

There is no provision of the Constitution that justifies the reliance on Section 84 of the Constitution to justify the refusal to use part of the amount standing to the credit of the judiciary in the Consolidated Revenue Fund and Federation Account to fund the capital expenditures of Section 6 State Courts.

For ease of reference and to facilitate the understanding of what I am saying, I reproduce here the full text of Section 84 of the 1999 Constitution as follows – (1) “There shall be paid to the holders of the offices mentioned in this section such remuneration, salaries and allowances as may be prescribed by the National Assembly, but not exceeding the amount as shall have been determined by the Revenue Mobilization Allocation and Fiscal Commission. (2) The remuneration, salaries, and allowances payable to the holders of the officers so mentioned shall be a charge upon the Consolidated Revenue Fund of the Federation. (3) The remuneration and salaries payable to the holders of the said offices and their conditions of services, other than allowances, shall not be altered to their disadvantage after their appointment. (4) The offices aforesaid are the offices of President, Vice president, Chief Justice of Nigeria, Justice of the Supreme Court, President of Court of Appeal, Justice of Court of Appeal, Chief Judge of the Federal High Court, President of National Industrial Court, Chief Judge and Judge of the High Court of the Federal Capital Territory, Abuja, Chief Judge of a State Judge of the High Court of State, Grand Kadi and Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja, President and Judge of the Customary Court of Appeal of the Federal Capital Territory, Abuja, Grand Kadi and Kadi of the Sharia Court of Appeal of a State, President and Judge of the Customary Court of Appeal of State, the Auditor-General for the Federation and Chairman and members of the following executive bodies, namely, the Code of Conduct Bureau, the Federal Civil Service Commission, the Independent National Electoral Commission, the National Judicial Council, the Federal Judicial Services Commission, the Judicial Service Committee of the Federal Capital Territory, Abuja, the Federal Character Commission, The Code of Conduct Tribunal, the National Population Commission, the Revenue Mobilization Allocation and Fiscal Commission, the Nigeria Police Council and the Police Service Commission. (5) Any person who has held office as President or Vice President shall be entitled to pension for life at a rate equivalent to the annual salary of the incumbent President or Vice-President: Provided that such a person was not removed from office by the process of impeachment or for breach of any provision of this Constitution. (6) Any pension granted by virtue of Subsection (5) of this section shall be a charge upon the Consolidated Revenue Fund of the Federation. (7) The recurrent expenditure of Judicial Officers 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 Consolidated Revenue of the Federation. (8) The recurrent expenditures of the Independent National Electoral Commission, in addition to salaries and allowances of the Chairman and members, shall be a charge upon the Consolidated Revenue Fund of the Federation. ​It is obvious from the clear words of this provision that the charge on the Consolidated Revenue of Fund of the remuneration, salaries and allowances of the holders of the offices listed in Subsection (4) therein as determined by the Revenue Mobilization Allocation and Fiscal Commission is for the purpose of preventing their remunerations, salaries, allowances and conditions of service being altered to their disadvantage after appointment, to protect and preserve their independence in the performance of their official duties.

This purpose is clearly stated in Subsection (3) of Section 84 and particularly applies to Judicial officers and members of other regulatory and law enforcement agencies mentioned therein. There is nothing in Section 84 suggesting that its intendment is to limit the amount standing to the credit of any of the bodies listed in Section 81(3) in the Consolidated Revenue Fund only to the amount for the specific recurrent expenditure of salaries and remunerations and allowances of the officials of the bodies listed therein.

There is nothing in Section 84 that shows that it seeks to determine the amount payable to the bodies listed in Section 81(3) and 162(9) of the Constitution as the amount standing to their credit in the Consolidated Revenue Fund.

The notion and practice that the said amount the National Judicial Council should disburse to the States Courts listed in Section 6 of the Constitution should be for only the remuneration, salaries and allowances of the judicial officers in those Courts has no provision in the 1999 Constitution and violates Section 81(3) and Section 162(9) of the said Constitution that did not provide that National Judicial Council should disburse the amount for all the capital and recurrent expenditures of Federal Courts and disburse to the State Courts only the amount to cover the remuneration, salaries and allowances of their judicial officers.

The fact is common knowledge and is not reasonably open question and therefore does not require proof by virtue of Section 124 of the Evidence Act 2011 that the amount standing to the credit of Independent National Electoral Commission (INEC) and National Assembly (NASS) in the Consolidated Revenue Fund under Section 81(3) of the Constitution are paid to them for their capital and recurrent expenditures.

There is nothing in the Constitution prohibiting the amount standing to the credit of the judiciary to be paid for all the expenditures of all Courts established under Section 6 of the 1999 Constitution. So, if as the current practice is, the amount standing to the credit of Independent Electoral Commission and National Assembly covers and is used for all their expenditures, which include capital and recurrent expenditures, then the amount standing to the credit of the Judiciary, covers and should be for all its expenditures, capital and recurrent.

There is nothing in Section 81(3) that requires that Judiciary be treated differently. There is nothing in that provision differentiating the payment of the amount standing to the credit of one body from that of the others.

It is clear that the provision is of general and similar application to the bodies listed therein except as otherwise provided therein. ​It is a general and hallowed rule of constitutional interpretation that where a Constitution states a word or phrase generally or without limiting words, it is obvious that it intends that the word or phrase should have a general meaning and application, unless other provisions in the Constitution state or suggest the contrary.

If there are no other provisions of the Constitution requiring or suggesting the contrary, the Court must apply the word or phrase generally and will have no power to restrict the application to specific situations.

There is no provision of the 1999 Constitution that limits or restrict the meaning or application of the phrase, “the amount” in Section 81(3) and “Any amount” in Section 162(9) to the amount for recurrent expenditure only or that requires that the phrase should have a different application to the State Courts and that as concerns such Courts, its meaning be restricted to the amount for remunerations, salaries and allowances of their judicial officers.

In the absence of any such limiting provisions in the 1999 Constitution, no person or authority has the power to give it a restricted application as it concerns the Judiciary or the State Courts listed in Section 6 of the 1999 Constitution.

Even the Court has no power to do so. ​Item 21(e) of Part 1 of the Third Schedule to the 1999 Constitution makes it abundantly clear and beyond any argument that the amount standing to the credit of the judiciary in the Consolidated Revenue Fund and Federation Account that is paid to it for disbursement to Heads of Court by virtue of Ss.81(3)(C) and 162(9) of the same Constitution is for capital and recurrent expenditure of the Judiciary.

This is obvious from the clear words of the said Item 21(e) as follows- “The National Judicial Council shall have power to (e) collect, control and disburse all monies, capital and Recurrent, for the Judiciary.” ​There is nothing in Section 81(3), Section 162(9) and Item 21(e) of Part 1 of the Third Schedule to the 1999 Constitution that suggests their differential application to Courts created by Section 6 of the 1999 Constitution for the States.

There is nothing in those provisions empowering the President of the Federal Republic of Nigeria, the National Judicial Council or any other person or authority to pay the amount standing to the credit of the Judiciary in the Consolidated Revenue Fund for the capital and Recurrent expenditures of only the Courts established under Section 6 of the 1999 Constitution for the federation and for only the recurrent expenditure of the Courts established by the same Section 6 of the 1999 Constitution for the States.

There is no provision in the 1999 Constitution for such a differential meaning and application. The President of the Federal Republic of Nigeria and the National Judicial Council have no power to differentiate or discriminate between Federal Courts and State Courts listed in Section 6 (5) of the Constitution in the application of Section 81(3), Section 162(9) and Item 21(e) of Part 1 of the Third Schedule of the 1999 Constitution. No other person or authority has the power to do so. The clear words and intendment of those provisions must be enforced and given effect.

In any case, the more useful and generally recognized and accepted approach to the interpretation of a national constitution across jurisdictions is a broad, liberal and purposive interpretation.

InRabiu v The State (1980) 8-11 SC 130 at 148 to 149, this Court per Udo Udoma JSC held that- “where the question is whether the Constitution has used an expression in the wider or in the narrower sense, in my view, this Court should whenever possible, and in response to the demands of Justice, lean to the broader interpretation, unless there is something in the text or in the rest of the Constitution to indicate that the narrower interpretation will best carry out the objects and purposes of the Constitution”.

This Court has over time in Obih v Mbakwe & Ors (1984) LPELR- 2172(SC), Adesanya v President of the FRN & Anor (1981) LPELR- 147 (SC), Ehuwa v Ondo State Independent Electoral Commission (2006) LPELR – 1056 A.G.F. & Ors v Abubakar & Ors (2007) LPELR – 3 (SC), Abegunde v Ondo State House of Assembly & Ors (2015) LPELR – 24588(SC), and Skye Bank v Iwu (2017) LPELR – 42595 (SC), Director of SSS & Anor v Agbakoba (1999) LPELR- 954 (SC) and several other cases continued to follow its statement of law in Rabiu v State (Supra), rendering it the leading case on the best approach to the interpretation of a national constitution, as an organic and a political document and the foundation of the rule of law and the expression of the sovereignty of the people.

Section 81(3)(c) and Section 162(9) of the 1999 Constitution clearly relieve State Governments the responsibility to fund Superior Courts established by Section 6 of the Constitution for their states.

This leaves the States with the responsibility to fund other Courts not established by Section 6 of the Constitution by paying the amount standing to the credit of the Judiciary in the State Consolidated Revenue Fund directly to the Heads of such Courts in the State by virtue of Section 121 (3), of the 1999 Constitution which provides thusly- “Any amount standing to the credit of the Judiciary in the Consolidated Revenue Fund of the State shall be paid directly to the heads of the Courts concerned.” Learned Attorney General for the Federation also argued that when the Constitution talks about the amount standing to the credit of the Judiciary under Section 81 of the Constitution, they are at least two folds, that there are the heads of expenditure contained in the estimates i.e funds that need appropriation by the legislature and there are those charged upon the Consolidated Revenue Fund of the Federation by the Constitution, that the former falls in the realm of capital expenditure, while the latter is recurrent expenditure, that this ultimately means that capital expenditure must by all means, be captured in the budget estimates of States and made into an appropriation law, before it can be withdrawn from the Consolidated Revenue Fund of the States, that the Constitution also prescribes that all funds captured in the annual budget (capital expenditure) as standing to the credit of the Judiciary and legislature must be paid directly to the heads of the respective arms of government, that indeed, there is no doubt that the Consolidated Revenue Fund of the Federation is the account from which the Federal Government draws its expenditure (capital or recurrent), that however, Capital Expenditure in particular, must by all means, be included and captured in the annual budget estimates for the particular fiscal year, that the trite fact is that it is the Appropriation Act that gives the power to withdraw funds from the Consolidated Revenue Fund of the Federation and in this particular instance;

to meet the capital expenditure for the fiscal year, that in other words, no capital expenditure not being a fund charged upon the Constitution, but one that requires legislative approval and executive assent can be withdrawn from the Consolidated Revenue Fund of the Federation, except in consequence of an Appropriation made by law, that it therefore follows that if any amount is not included in the annual budget estimate and consequently not duly appropriated for, it cannot be withdrawn from the Consolidated Revenue Fund of the Federation or of a State.

Let me consider the merit of these arguments. It is glaring from the provision of Section 81(3) that the bodies listed therein are funded from the Consolidated Revenue Fund. The purpose is obviously to protect their independence. Funds meant for all their expenditures are the amount standing to their credit in the Consolidated Revenue Fund. The words, “amount standing to the credit of the Judiciary” in Section 81(3) cannot bear the meaning given to them by the Learned Attorney General of the Federation.

Section 81(3) did not say that payment of the amount standing to the credit of the Judiciary for capital expenditure of the Judiciary can only be permitted by an Appropriation Act. It did not state that the payment of the said amount to the National Judicial Council must be authorized by an Act of the National Assembly before it can be made.

It is wrong to read into Constitutional or statutory provision words that are not contained therein as that amounts to amending the legislation which is different from giving the words of the provision the meaning the words can truly bear, without any form of distortion or interpolation. In any case, it is the Constitution that provides for the payment of the amount standing to the credit of the Judiciary in the Consolidated Revenue Fund directly to the National Judicial Council for disbursement to Heads of Court.

It is therefore a payment or expenditure charged upon the Consolidated Revenue Fund or authorized to be made by Section 81(3) (c) of the Constitution. Since the Constitution did not require that the payment directly to National Judicial Council from the Consolidated Revenue Fund or Federation Account be authorized by an Act of the National Assembly before it can be made, it can be made to the National Judicial Council for disbursement to the Heads of the Courts listed in S.6 without appropriation or authorization by an Appropriation Act.

Furthermore, being a payment or expenditure charged on or authorized to be made from the Consolidated Revenue Fund, it can be made to the National Judicial Council for disbursement to the Heads of the Courts listed in Section 6 without appropriation or authorization by an Appropriation Act. This is so by virtue of Section 80 (2) and (3), Section 81(2) and (3) of the 1999 Constitution. Section 80 (2) and (3) provide that – (2).

No moneys shall be withdrawn from the consolidated revenue Fund of the federation except to meet expenditure that is charged upon the fund by this Constitution or where the issue of those moneys has been authorized by an Appropriation Act, Supplementary Appropriation Act of the National Assembly. (3). No moneys shall be withdrawn from any public Fund of the Federation other than the Consolidated Revenue Fund of the Federation unless the issue of those moneys has been authorized by an Act of the National Assembly.

Section 81 (2) provide that- The heads of expenditure contained in the estimates (other than expenditure charged upon the Consolidated Revenue Fund of the Federation by this Constitution) shall be included in a bill to be known as an Appropriation Bill, providing for the issue from the Consolidated Revenue fund of the sums necessary to meet that expenditure and the appropriation of those sums for the purpose specified therein. ​Section 162 (3), (4), (5) (8) and of the Constitution did not make payment of the amount standing to the credit of the Judiciary in the Federation account subject to an Act of the National Assembly, but made that payable to Federal, States and Local Governments subject to an Act of the National Assembly.

This is obvious from the text of the provisions which read thusly- “(3) Any amount standing to the credit of the Federation Account shall be distributed among the Federal and State Governments and the Local Government Council in each State on such terms and in such manner as may be prescribed by the National Assembly. (4) Any amount standing to the credit of the States in the Federation Account shall be distributed among the State on such terms and in such manner as may be prescribed by the National Assembly. (5) The amount standing to the Credit of Local Government Council in the Federation Account shall also be allocated to the States for the benefit of their Local Government council on such terms and in such manner as may be prescribed by the National Assembly. (8) The amount standing to the Credit of Local Government council of State shall be distributed among the Local Governments councils of that State on such terms and in such manner as may be prescribed by the House of the State. (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 State under Section 6 of this Constitution. ​Item 21(e) of Part 1 of the Third Schedule to the 1999 Constitution gives the National Judicial Council (NJC) the power to collect, control and disburse all monies for the capital and recurrent expenditure of the judiciary without limiting the power procedurally and substantively.

It did not require the NJC to exercise that power in accordance with or under or subject to an appropriation Act. It did not subject the exercise of that power by NJC to approval and supervision by any arm of government, authority or person.

Therefore, the current practice of the National Judicial Council (NJC) sending its annual budget estimates to the Budget Office of the executive arm of government or any other executive authority or sending its budget indirectly or directly to the National Assembly for appropriation before the amount standing to its credit in the Consolidated Revenue Fund or Federation Account for the Courts established under Section 6 of the Constitution can be released to it violates Section 80 (2) and (3), Section 81(2) and (3) and Section 162 of the 1999 Constitution.

It violates the principle of separation of powers between the legislature, executive and the judiciary entrenched by Ss. 4, 5 and 6 of the 1999 Constitution for the capital and recurrent expenditures of the Judiciary from the amount standing to its credit on the Consolidated Revenue Fund of the Federation or Federation Account, to be made part of the estimates to be included in the Appropriation Bill proposed as expenditures by the President.

The present practice of the executive arm of Government determining the budgeting process, budget and release of funds from the Consolidated Revenue Fund or Federation Account to the NJC defeats the provisions of Sections 80(2) and (3), Section 81 (2), (3), (c), Section 84 (2), (7) and Section 162 (1), (2) and (9) of the Constitution of the Federal Republic of Nigeria 1999.

Just as the National Assembly does not submit its Budget Estimates to the executive arm or any authority for approval because there is no provision in the Constitution for that, the judiciary is under no constitutional obligation to submit its budgeted capital and recurrent expenditures to the executive or the Legislature or any other authority for approval before the amount standing to its credit in the Consolidated Revenue Fund and Federation Account can be paid to the NJC for disbursement to the federal and state Courts created in Section 6 of the Constitution. ​The obvious and necessary implication of Section 162 of the Constitution is that once the National Assembly has determined the formula for the sharing of the revenue collected by the Federal Government and paid into the Federation Account, the amount due to the Federal, State and Local Governments and the judiciary, shall become standing to their respective credits in the Federation Account.

The amount standing to the credit of the judiciary 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 the Constitution.

It is implicit in the provisions of Section 81(3) of the Constitution that the sharing of the moneys in the Consolidated Revenue Fund would be done by the process prescribed in Section 162(2) therein for sharing moneys in the Federation Account, in the absence of any other provision in the Constitution to the contrary, before the moneys shared to each body listed therein can stand to its credit.

Section 81(3)(c) requires that the amount standing to the credit of the judiciary 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 the Constitution.

Let me now consider how the amount standing to the credit of the Judiciary in the Consolidated Revenue Fund and Federation Account is determined and the source of that amount. ​Section 162 (1) and (2) of the 1999 Constitution provides for the source and determination of the amount that should go to the credit of the Federal, States and Local Governments and the Judiciary in the Federation Account and the Consolidated Revenue Fund.

The amount is derived from the distributable pool account of the Federation Account, following the determination by the National Assembly of the formula for sharing the revenues collected by the Government of the Federation based on proposals by the President on revenue allocation from the Federation Account upon receipt of advice from the Revenue Mobilization Allocation and Fiscal Mobilization Commission.

This is obvious from the provisions of Section 162 (1) to (9) of the 1999 Constitution as follows – (1) The Federation shall maintain a special account to be called “the Federation Account” into which shall be paid all revenues collected by the Government of the Federation, except the proceeds from the personal income tax of the personnel of armed forces of the Federation, the Nigeria Police Force, the Ministry or department of Government charged with responsibility for Foreign Affairs and the residents of the Federal Capital Territory, Abuja. (2) The President, upon the receipt of advice from the Revenue Mobilization Allocation and Fiscal Commission, shall table before the National Assembly proposals for revenue allocation from the Federation Account.

In determining the formula, the National Assembly shall take into account, allocation principles especially those of population, equality of States, internal revenue generation, land mass, terrain as well as population density: Provided that the principle of derivation shall be constantly reflected in any approved formula as being not less than thirteen per cent of the revenue accruing to the Federation Account directly from any natural resources. (3) Any amount standing to the credit of the Federation Account shall be distributed among the Federal and State Governments and the Local Government Council in each State on such terms and in such manner as may be prescribed by the National Assembly. (4) Any amount standing to the credit of the States in the Federation Account shall be distributed among the State on such terms and in such manner as may be prescribed by the National Assembly. (5) The amount standing to the Credit of Local Government Council in the Federation Account shall also be allocated to the States for the benefit of their Local government council on such terms and in such manner as may be prescribed by the National Assembly. (6) Each State shall maintain a special account to be called “State Joint Local Government Account” into which shall be paid such allocations to the local government council of the State from the Federation Account and from the Government of the State. (7) Each State shall pay to the local government in its area jurisdiction such proportion of its revenue on such terms and in such manner as may be prescribed by the National Assembly. (8) The amount standing to the Credit of Local Government council of State shall be distributed among the Local Governments councils of that State on such terms and in such manner as may be prescribed by the House of the State. (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 State under Section 6 of this Constitution.

It is clear from the provisions of Section 162(1) to (9) of the Constitution that once the formula for distribution is determined in accordance with the provisions of Subsections (1) and (2), the remaining subsections up to Subsection (9) provide for how the amount due to the Federal, States and Local Government and the Judiciary from the distributable pool of revenue in the Federation account shall be paid to each of them.

It is remarkable that while Subsections (3), (4), (5), (6), (7) and (8) provide that the amount due to the Federal, States and Local Governments shall be paid to each of them on such terms and in such manner as may be prescribed by the National Assembly or House of Assembly as the case may be, Subsection (9) therein provide that the amount due to the Judiciary 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 the Constitution.

So, the argument of the Learned Attorney General for the Federation that it is the Appropriation Act that gives the power to withdraw funds from the Consolidated Revenue Fund of the Federation for capital expenditure for the fiscal year is contrary to the clear words of Section 81(3)(C) and Section 162 of the 1999 Constitution.

Equally, the notion that the National Judicial Council must present a budget proposal of its capital and recurrent expenditures for a particular year to the National Assembly for approval and that the amount standing to the credit of the Judiciary in the Consolidated Revenue Fund or Federation Account can only be paid to it upon the National assembly approval of its said budgetary proposal is contrary to Section 81(3) and Section 162 of the 1999 Constitution.

These provisions did not prescribe this budget process as a condition for paying the amount standing to the credit of the Judiciary to the National Judicial Council for disbursements to heads of the relevant Courts. This Court in AG FEDERATION V AG ABIA STATE & ORS (2002)6 NWLR (Pt.764) 542 held that “the words ‘paid directly to the heads of Courts concerned’ in Section 121(3) imply a payment system outside the Appropriation Bill.” It is worthy of note that Section 81(3) and Section 162(9) contain the same words.

In the same case, this Court held concerning the phrase “other than expenditure charged upon the Consolidated Revenue Fund of the State” in Section 121(2) of the 1999 Constitution thusly- “It is clear from the phrase “other than expenditure charged upon the Consolidated Revenue Fund of the State” in Section 121(2) that expenditure charged upon the Consolidated Revenue Fund of the state is exempted from the executive Appropriation Bill which is laid before the House of Assembly by the Governor.” The same phrase is contained in Section 81(2) of the same Constitution.

This Court has no reason to depart from its above decision in AG FEDERATION V AG ABIA STATE & ORS on the implication of the above phrases. Even though the Consolidated Revenue Fund and Federation Account belong to the Federation by virtue of Section 80 and Section 162(1) of the 1999 Constitution, in practice, they are in the custody and management of the Federal Government. It therefore has the responsibility to enforce Section 80 and Section 162 of the Constitution on the payment or withdrawal of money from the Consolidated Revenue Fund and Federation Account.

It has no discretion on any payment from the said Fund and Account. It is the Constitution that determines such payment. The Federal Government has the mandatory constitutional duty to obey the Constitution on such payment. The payments from the Consolidated Revenue Fund and Federation Account is not a payment by the Federal Government. It is a payment by the Federation on the authority of the Constitution. Dr.

Olisa Agbakoba SAN as amicus curiae urged this Court to depart from its decision in the same case, AG FEDERATION V AG ABIA STATE & ORS (supra) striking down Section 162(9) of the Constitution for being inconsistent with Section 84 of the same Constitution.

The learned SAN argued that the decision was reached per incuriam and has caused miscarriage of justice, that this Court cannot strike down a provision of the Constitution because that amounts to amending the Constitution, that this Court has no power to amend the Constitution, that if this Court had averted its mind to Item 21(e) of Part 1 of the Third Schedule to the Constitution, its decision would have been different and that this Court should hold that Section 162(9) of the Constitution is the framework for funding the capital expenditure of Courts listed in Section 6 of the Constitution.

Let me now consider the merit of these arguments. The exact text of the said decision reads thusly – “‘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 of judicial officers 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 which provides: “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.” It may be that it was intended to give the judiciary a share of the Federation Account but this has not been expressly or impliedly provided for.” I agree with the submission of Dr Agbakoba SAN that the part of our decision in ATTORNEY GENERAL OF THE FEDERATION V ATTORNEY GENERAL OF ABIA STATE & ORS (supra) striking down Section 162(9) of the 1999 Constitution for being in conflict with Section 84 of the same Constitution was with due respect to that very distinguished panel of this Court made per incuriam.

The Constitution is supreme in all its textual provisions. Except where the Constitution itself makes one of its provision subject to another of its provision or makes one override another, all the provisions in its text are of equal supremacy. None can defeat the other or render it void. It is contradictory, illogical and constitutionally impossible to postulate that a provision of the Constitution is contrary to the same constitution because it is in conflict with another provision of the same constitution.

As this Court held in Opara & Anor V Amadi & Anor (2013) LPELR- 20747 (SC) “one section of the Constitution cannot derogate from or override the provisions of another section of the same Constitution.

The supremacy of the Constitution is shared and enjoyed by all sections including the amended sections of the Constitution.” Where the Constitution provides for the same matter in two different sections without subordinating one to the other, if the provisions conflict, the Court would merely exercise its interpretative jurisdiction and apply the later provision as the last legislative intention on the matter and treat it as an amendment of the earlier provision.

The earlier provision remains in the Constitution and cannot be struck down. ​In our present case, there is no conflict between Section 84 and Section 162(9) of the Constitution. While Section 84 charged only the amount for remunerations, salaries and allowances of judicial officers on the Consolidated Revenue Fund, Section 162(9) charges all the moneys standing to the credit of the judiciary for Federal and State Courts listed in Section 6 in the Federation Account and thereby made it more expansive and all-embracing and not restricted to the amount for remuneration, salaries and allowances.

Section 162(9) did not exclude the amount for remunerations, salaries and allowances of judicial officers from being charged on the Federation Account or the Consolidated Revenue Fund. There was no basis for holding that Section 162(9) is in conflict with Section 84. In the light of the foregoing, I depart from our earlier decision in ATTORNEY GENERAL OF THE FEDERATION V ATTORNEY GENERAL OF ABIA STATE & ORS striking down Section 162(9) as unconstitutional. The decision is per incuriam and if followed would endanger the judiciary.

As held by this Court in Shema & Ors V FRN (SC.814/2017), “The Court may, and could in justifiable cases, depart or overrule its previous decisions under certain identifiable circumstances and in accordance with the laid down principles of law.

The Supreme Court could depart from its previous decisions where it is shown or demonstrated that the earlier decisions are either erroneous in law; reached per incuriam or occasioning a miscarriage of justice.” Section 162(9) guarantees that the amount shared to the judiciary for the Section 6 Courts from the distributable pull of revenue in the Federation Account is paid directly to the National Judicial Council for disbursement to the Heads of those Courts for their capital and recurrent expenditures.

It is obvious that remunerations, salaries and allowances of Judges of the Federal and State Courts created under Section 6 are part of their recurrent expenditures.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Let me now consider the issue of the Constitutionality of the Implementation of Financial Autonomy of State Legislature and State Judiciary Order, 2020. (President’s Executive Order No. 00-10 of 2020).

Learned SAN for the plaintiffs argued that the Executive order seeks to compel the State Government to fund the State Courts created by Section 6 of the 1999 Constitution contrary to Section 81(3)(c) and Item 21 (e) of the 1999 Constitution, that it enables and empowers the Accountant General of the State to deduct from the amount standing to the credit of the Judiciary in the Consolidated Revenue Fund, if the State Government fails to pay the remuneration, salaries and allowances of Judicial officers of the State Courts established under Section 6 of the Constitution directly to the heads of such Courts and thereby compels the State Governments to fund the capital and recurrent expenditure of State Courts established under Section 6 of the Constitution, that the Executive Order is to that extent inconsistent with Section 81(3) (c) and Item 21(e) of the 1999 Constitution and is therefore void and that the vesting of power on the Accountant General of the Federation to deduct funds from the funds standing to the credit of a State in the Consolidated Revenue Fund is contrary to Ss. 120 and 121 of the Constitution and is unconstitutional and void.

Learned Attorney General of the Federation argued in Reply that nowhere in the Executive Order 00-10 is the Accountant General of the Federation directed by the President to make deductions from the Consolidated Revenue Fund of a State, that what is contemplated by paragraph 1(b) is that the Accountant General of the Federation will make deductions from source which is the Federation Account, that deductions will be made from the Federation Account, before the funds get into the Consolidated Revenue Fund of the State, that therefore, as it relates to the Federation Account, the President is indeed within his constitutional right to have directed the Accountant General of the Federation to make deductions from the Federation Account to ensure compliance with the implementation of financial autonomy of State Judiciaries, that the action of the President, in directing the Accountant General of the Federation (who is obviously an officer in the public service of the Federation as contemplated under the above cited section) to deduct from source, funds standing to the credit of State Judiciaries, where such a State refuses to release same, clearly has constitutional backing by virtue of the said section, that the President in a bid to fulfill his duty of executing and maintaining the Constitution, did so by directing an officer in the public service of the Federation to wit: the Accountant General of the Federation to do what is deemed needful to ensure the implementation of the constitutional provisions on financial autonomy for State Judiciaries.

Let me now determine the merits of the above arguments.

For ease of reference and to facilitate the understanding of the treatment of this issue, I reproduce here the parts of the said Presidential Executive Order 00-10 of 2020 relevant to this issue as follows- 1 (b) 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, authorize 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 of guaranteed by Section 121(3) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended). 2.

Determination of the Budget Notwithstanding the provisions of any existing law, convention or regulation, other than the Constitution of the Federal Republic of Nigeria 1999 (as Amended), providing for appropriation or management of funds at the State tier of Government as follows: – – Every State Government of the Federation shall set up a Committee from the commencement of this Executive Order comprising the Commissioner of Finance, Accountant-General of the State, representative of the State Budget Officer Chief Registrars of State High Court, Sharia Court of Appeal and Customary Court of Appeal, (where applicable), the Clerk to the State House of Assembly and the Secretary of the State Judicial Service Committee or Commission; – Where applicable, determine and ascertain from the Revenue profile of the State, a workable budget for each Arm of the State Government based on the request and needs of the Accounting Officers; and – the Committee shall be given and accorded legal recognition in the various relevant appropriation or Funds Management Laws of the States. 3.

Creation of State Judiciary Budget Committee (a) For the purpose of Appropriation to the State Judiciary, each State Judiciary of the federation shall set up a state Judiciary Budget Committee (in this Order referred to as “a Committee”) to serve as an administrative body to prepare, administer and implement the budget of the State Judiciary with such modifications as may be required to meet the needs of the State Judiciary. (b) The Committee shall consist of the State Chief Judges as the Chairman with the Grand Kadi, Sharia Court of Appeal, the president, Customary Court of Appeal, where applicable and two members of the Judicial Service Committee or Judicial Service Commission to be appointed by the Chief Judge, in consultation with other Members of the Committee, to serve as Members. (c) The Chief Registrar of the State High Court is to serve as Secretary. (d) The modalities for budget preparations and implementation shall include but not limited to the following: (i) upon the receipt of the Budget Estimates of the Fiscal Year for the state Judiciary, the State Judiciary Budget Committee shall invite all the Accounting officers of the various Court/ Judicial Bodies to defend their budget estimates;

(ii) the budget estimates for Courts and Judicial bodies shall be based on expenditure line items given to them by the State Judiciary Budget Committee which shall be defended before the State House of Assembly;

and (iii) upon the appropriation of Funds, the State Judiciary Budget Committee shall on a monthly basis or as the case may be, request the Budget Office of the State to release the statutory allocation for the quarter or monthly and the Authority to Incur Expenditure (AIE) shall be raised by the Office of the Accountant-General of the State for the release of the Fund to all the Heads of Court/ Judicial Bodies in line with the Appropriation Law. 4.

Budget Preparation, Templates and Modalities (a) without prejudice to any existing budget templates in force in any State of the federation, the State Legislature and State Judiciary shall continue to maintain the strata of line consultations, inter Arms and inter-Agency pre-budget to consultations and frontloading as is done in some States (b) The budget templates and models in the schedule to this Executive Order shall apply to State Legislature and State Judiciary with modifications, in compliance with Section 121(3) of the 1999 Constitution of the Federation Republic of Nigeria (as Amended) and such other application Laws. 5.

Appropriation and Supplementary Appropriation Law, Etc. (a) At the commencement of this Order for implementation of financial autonomy for State Legislature and State Judiciary in line with Section 121(3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), all governments in their Appropriation Laws. (b) Where Appropriation Law exist in any State of the federation before the commencement and implementation of this Order, such State shall amend their Appropriation Law to encompass financial autonomy of State Legislature and State Judiciary. (c) This Order expects State without Appropriation Law on financial autonomy of State Legislature and State Judiciary to do so.

6. Special Allocation for the Judiciary (a) 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 Complexes of other Courts befitting the status of a Courts. (b) In this section, “Other Court” includes Magistrate Courts, District Courts, Customary Court and Area Courts. 7.

Implementation of this Order (a) Subject to Section 81 of this Order, implementation of the provisions of this Order shall be carried out by the Presidential Implementation Committee in accordance with its recommendations. (b) To the extent as may be permitted by law, the Accountant-General of the Federation shall take appropriate steps to ensure compliance with the provisions of this Order and implementation of the recommendations of the Committee, as may from time to time be made. (c) This Order shall be implemented consistently with States Application laws that guarantee financial autonomy of State Legislature and State Judiciary and subject to the availability of funds.

It is remarkable and instructive that Executive Order 10 acknowledges that the Constitution requires that the judiciary should be financially independent and autonomous and was therefore issued by the President to protect the financial autonomy of the judiciary as guaranteed by Section 121(3) of the 1999 Constitution.

It is noteworthy that Sections 81(3) (C) and 162(9) of the 1999 Constitution in terms exactly the same with the provisions in Section 121(3) of the same Constitution guaranteed the financial autonomy of the federal and state Courts established under Section 6 of the Constitution by requiring that the moneys standing to the credit of the judiciary in the Consolidated Revenue Fund and Federation Account be paid directly to the National Judicial Council for disbursement to the heads of the federal and state Courts established under Section 6 of the Constitution.

In Item 21(e) of Part 1 of the Third Schedule the Constitution gave the National Judicial Council the unrestrained power to collect, control and disburse all moneys, capital and recurrent, for the judiciary. ​The Government of the Federation having acknowledged the need to protect the Constitutional guarantee of the financial independence of the judiciary, should strictly comply with the provisions of Section 80(2) and (3), Section 81(3)(C), Section 84, Section 162(9) and Item 21(e) of Part 1 of the third Schedule to the Constitution that guarantee the financial autonomy of Federal and State Courts established under Section 6 of the Constitution and avoid engaging in any administrative, accounting and budgeting processes that defeat these provisions.

The regime of administrative, accounting and budgeting policies and processes under regulations and circulars that predate the 1999 Constitution must be abrogated where they conflict with the Constitution or applied with the necessary modifications that will make them conform with the Constitution. The independence of the judiciary will remain notional and illusory without it being financially autonomous.

To be financially autonomous, it must be funded as provided in the Constitution and not by policies and processes that make it depend on the discretion or sweet will of the executive or the legislature for funding. The judiciary must be truly independent for the rule of law to be effective. There can be no genuine separation of powers between the legislature, executive and judiciary if the judiciary is not truly independent.

The Executive Order 10 is inconsistent with Section 81(3) and Section 162(9) of the 1999 Constitution to the extent that it requires the States to fund the Courts established under Section 6 of the Constitution from the amount standing to the credit of the respective States in the Federation Account. It is to the extent of its inconsistency with the Constitution void.

Section 162(4) of the 1999 Constitution provides that “Any amount standing to the credit of the States in the Federation Account shall be distributed among the States on such terms and in such manner as may be prescribed by the National Assembly”. Executive Order 10 is made by the President as head of the Executive. It is not made by the National Assembly. It is clear from Section 162(4) of the Constitution that the Constitution gives the National Assembly the power to determine how the amount standing to the credit of the States of the Federation shall be distributed amongst them.

The President or the Attorney General of the Federation or the Accountant General of the Federation or any other authority outside the National Assembly has no power to prescribe or determine by any means that the amount to be distributed to each state from the Federation Account shall not include the amount for the Judiciary and House of Assembly of a State.

So Executive Order 10 is contrary to Section 162(4) of the Constitution by providing 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, authorize the deduction from source the money allocated to any State of the Federation that fails to release allocation meant for the State legislature and State Judiciary.

Payment of any money standing to the credit of a government or any institution in the Federation Account must be strictly in accordance with Section 162 of the 1999 Constitution. Any deduction from the amount allocated to a Government or institution in the Federation Account by the Executive or any of its agency is ultra vires its powers, illegal and void. ​It is glaring from the provisions of the said Executive Order 10 that the President seeks to administer the states on the matters stated therein and thereby exercise the executive powers of the States.

The President can exercise only the executive powers of the Federation and cannot exercise the executive powers of the States or interfere in any manner with the exercise by the State with its executive powers by virtue of 5(1) and (2) of the 1999 Constitution that provide thusly – For the above reasons, the Executive Order 10 is unconstitutional, illegal and void. The decision of this Court in A-G Lagos State V A-G of the Federation (2004)18 NWLR (Pt.904) 1 offers very useful guide on this issue.

In that case, the Lagos State Government, in keeping with its Local Government Law created 56 Local Development Areas as a step toward creating additional Local Government areas in the state. To stop Lagos State Government from creating additional local government areas, the President directed the Minister of Finance in 2004 to withhold the payment of the amount standing to the credit of Local Governments of Lagos State in the Federation of Account to Lagos State for the benefit of its said local government councils contrary to Section 162(5) of the 1999 Constitution.

This Court held thusly- “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 accounts to the States, which created new Local Government area 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 Officer” which he took in assumption of officer 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 … 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.” … “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 power but even so they have known limits. The exercise of the powers is kept within bound by the intervention of the rule of law.” … “If the Federal Government felt aggrieved by Lagos State creating more local government, the best solution is 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 kowtow to the due process of the law and this they can vindicate by resorting to the Courts for redress in the event of any grievance. This Court in Attorney-General of the Bendel State vs Attorney-General of the Federation (1983) 1 All NLR 208 at 220, held thusly – It seems to me therefore that once the Federation Accounts is divided amongst the three tiers of Government, the State Government collectively become the absolute owners of the share that is allocated to them (i.e 35 per cent).

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 federalism on the autonomy of the constituent State. ​The source of the power of the President to exercise the executive powers of the Federation is Section 5 (1) of the 1999 Constitution reproduced above.

The Constitution in that section makes the exercise of that power subject to the Constitution and any law made by the National Assembly. It is not absolute or omnipotent. It does not include the power to make laws for the Federation or the States and does not include the power to administer any State or Local Government or supervise the administration of a State or Local Government.

The issuance of Executive Orders by the President in exercise of the executive powers of the Federation must be in respect of matters within the executive powers of The Federation as prescribed in Section 5(1) (b) of the 1999 Constitution reproduced above. The President clearly seeks to administer the States by Executive Order 10. Where the things ordered to be done by an Executive order are outside the Executive Powers of the Federation as in this case, the Order would be unconstitutional, illegal and void. In the celebrated American case of Youngshown Sheet & Tube Co. et al vs.

Sawyer, 343 U.S. (1952), the question was whether Presidential Executive Order 10340 was constitutional and valid. The US Supreme Court voided the said Order, on the ground that it was in conflict with express provisions of the US Constitution. Justice Black, who delivered the lead opinion of that Court, held in paragraphs 8, 10 and 13 thus: 8. It is clear if the President had authority to issue the order he did, it must be found in some provisions of the Constitution. And it is not claimed that express constitutional language grants this power to the President.

The contention is that presidential power should be implied from the aggregate of his powers under the Constitution. Particular reliance is placed on provisions Article II which says that ‘the executive Power shall be vested in a President…’; that he shall take care that the laws be faithfully executed’; and that he ‘shall be Commander in Chief of the Army and Navy of the United States.’ 9. The order cannot properly be sustained as an exercise of the President’s military power as Commander in Chief of the Armed forces… 10.

Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and vetoing of laws he thinks bad…. 11. … 12. … 13. The Founders of this Nation entrusted the law making power to the congress alone in both good and bad times.

It would do no good to recall the historical events, the fears of power and hopes of freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand. We must bear in mind that the power, duties and responsibilities of each tier of Government is as given to each of them by the Constitution which prescribes the distribution and divisions of those powers and duties between them. The Constitution can distribute and divide powers and duties between the tiers of Government in disregard of the principle of autonomy of each tier of Government.

In our present case, the Constitution did not leave the states with the responsibility to fund State Courts established by Section 6 of the Constitution and rather provided for its funding from the Federation Account.

Since it is the Government of the Federation that custodies and manages the Federation Account and the Consolidated Revenue Fund of the Federation and is vested with the responsibility to determine the formula for sharing the distributable revenue between the three tiers of government and the Judiciary and the responsibility to pay the shared or distributed amount to each tier of Government and the Judiciary, it is seen as funding the tiers of Government and the Judiciary. This view is wrong. As I have held herein, the funds belong to the Federation.

It is merely acting as an agent of the Federation on the authority of the Constitution. It must perform the duty given to it by the Constitution to pay the amount shared to each tier of Government and the Judiciary. It has no discretion in the matter. The notion that State Courts established under Section 6 of the 1999 Constitution must be funded by the States is not consistent with Section 81(3) and Section 162 (9) of the Constitution. The Federalism practiced in Nigeria is as provided for in our Constitution and not as defined in legal theories.

What we practice cannot come within the classical concepts of federalism as it does not bear many of the essential ingredients.

This Court in Olafisoye V Federal Republic of Nigeria (2004) LPELR-2553 (SC) stated this position thusly – “Professor Nwabueze, in his book Federalism in Nigeria (1983) correctly said at page 34 “The application of the Federal System in Nigeria and in many later Federations has shown that a Federation could be formed by a state hitherto under a unitary Government, dividing part of its powers to two or more independent State Governments.” By the above statement, Professor Nwabueze rightly recognizes that a Federation can take its branches from the tree of a unitary government.

In such a situation, the historical ties may make it impossible for the Federal Constitution to entirely and totally strip of its relationship with unitarism that could be the Nigerian experience for now.

It is clear from the above that it is wrong to sound dogmatic and final when dealing with the meaning, concept or constituents of Federalism or Federal Government.” In Attorney General of Lagos State V Attorney General of the Federation & Ors (2003) LPELR- 620 (SC) this Court held per Tobi JSC that “For the purposes of interpreting or Construing the provisions of our Federal Constitution, neither will other Federal Constitutions nor theories and principles of Federalism, be a substitute to the provisions of our Constitution.

Such Federal Constitutions and theories and principles can only be aids and in some cases useful aids in the interpretation of our Constitution. Accordingly, where there is any conflict between arrangements in other Federal Constitutions or theories and principles of Federalism, with our Constitution, the provisions of our Constitution will prevail.”

In the light of the foregoing, I hold that the plaintiffs’ claim succeeds as it has merit. However, the plaintiffs did not adduce evidence to prove the exact amount each of them spent on capital projects for the Courts established by Section 6 of the Constitution for them. The terse assertions in the further affidavit contained no evidence of the amount computed and tabulated in exhibit A attached to the further affidavit filed on 27-11-2020. As it is, reliefs 5, 6 and 7 based on exhibit A cannot be granted. The following reliefs are hereby granted. 1.

A DECLARATION that by virtue of Sections 6, 81(3) and 162(9) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) (the 1999 Constitution) the amount standing to the credit of the judiciary in the Federation Account and Consolidated Revenue Fund is to fund all the capital and recurrent expenditures of Courts established for the Federation and States under Section 6 the 1999 Constitution. 2.

A DECLARATION that by virtue of Sections 6, 81(3) and 162(9) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) (the 1999 Constitution) and Item 21(e) of Part 1 of the Third Schedule thereto the amount standing to the credit of the judiciary in the Federation Account and Consolidated Revenue Fund shall be paid directly to the National Judicial Council for disbursement to the heads of Courts established for the Federation and States under Section 6 the Constitution to fund all their capital and recurrent expenditures. 3.

A DECLARATION that by virtue of Section 6, Section 80(2) and Section 81(2) and (3) and 162(9) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) (the 1999 Constitution) and Item 21(e) of Part 1 of the Third Schedule thereto the payment of the amount standing to the credit of the judiciary in the Federation Account and Consolidated Revenue Fund directly to the National Judicial Council for disbursement to the heads of Courts established for the Federation and States under S.6 the Constitution to fund all their capital and recurrent expenditures is not subject to any Appropriation Act or Law and is not subject to the authority or supervision of the Executive and or the National Assembly or House of Assembly of a State. 4.

AN ORDER that the amount for all the capital and recurrent expenditures 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 1999 Constitution be included in the amount to be allocated to the judiciary by the President in his proposals for revenue allocation from the distributable pool of revenue in the Federation Account he tables before the National Assembly for consideration in keeping with Section 162(2) and (9) of the 1999 Constitution. 5.

AN ORDER that the amount for all the capital and recurrent expenditures 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 1999 Constitution should no longer be included in the amount to be allocated to each State of the Federation by the President in his proposals for revenue allocation from the distributable pool of revenue in the Federation Account he tables before the National Assembly for consideration in keeping with Section 162(2) and (9) of the 1999 Constitution. 6.

A DECLARATION that the Presidential Executive Order No 00-10 of 2020 made by the President of the Federal Republic of Nigeria on 22nd May, 2020 is inconsistent with the 1999 Constitution is therefore unconstitutional, illegal and void. 7. 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.