The 36 states of the federation have asked the supreme court to compel the federal government to refund about N66 billion spent on funding courts in the states.
Augustine Alegeh, who represented the states, said this on Monday while making submissions in the suit seeking to quash the presidential executive order 00-10 of 2020, which mandates state governments to fund the judiciary.
President Muhammadu Buhari, on May 22, signed the order granting financial autonomy to the legislature and the judiciary in the 36 states of the federation.
The order empowers the accountant-general of the federation to deduct funds for the state legislature and the judiciary from the federal allocations to the states.
In the suit filed by their respective attorneys-general, the states are contending the constitutionality of the executive order.
The plaintiffs said with the executive order, the federal government’s responsibility of funding capital and recurrent expenditures of state high courts, sharia court of appeal and customary court of appeal has been pushed to the state governments.
“Since the 5th of May, 2009, the defendant had not funded the capital and recurrent expenditures of the state high courts, Sharia Court of Appeal and the Customary Court of Appeal of the Plaintiffs’ states, apart from paying only the salaries of the judicial officers of the said courts,” the plaintiffs said in their statement of claim.
“The Plaintiffs’ states have been solely responsible for funding the capital and recurrent expenditures of the state high courts, Sharia Court of Appeal and the Customary Court of Appeal of the Plaintiffs’ states, which the Defendant has failed and/or refused to fund.”
According to them, section 81(3) of the 1999 Constitution, makes provision for the funding of the courts.
“That item 21(e) of the Third Schedule to the 1999 Constitution provides that the National Judicial Council (NJC) is to collect from the defendant and disburse all capital and recurrent expenditure in respect of all the courts established under Section 6 of the same Constitution,” the document reads.
“That Section 121(3) of the constitution makes provision for all capital and recurrent expenditures for courts not established under Section 6 of the constitution by the respective plaintiff’s states.”
While adopting their processes before the court, Alegeh argued that salaries, emoluments, remuneration and allowances of judges are not supposed to be in any appropriation bill.
He contended that under section 84(4) of the constitution, as amended, funds for such expenditure are captured in the consolidated revenue fund, not in the budget.
“Our position is that funds meant for the judiciary should be taken from the consolidated revenue fund and handed to the NJC for disbursement to heads of courts as stipulated in section 6 of the constitution,” he said.
“We have to admit to ourselves that what we are practising in this country is constitutional democracy and not true federalism.”
He also told the court that about N66 billion have been spent on the maintenance of state courts.
Responding, Tijani Gazali, counsel to the attorney-general of the federation (AGF), opposed the request of the plaintiffs.
He said executive order 10 was based on a judgment delivered by Adeniyi Ademola, a former judge of a federal high court, in a suit that was filed by the Judiciary Staff Union of Nigeria (JUSUN), in which the NJC, the AGF and the attorneys-general of the 36 states, were joined as respondents.
Gazali said since the states never appealed the judgment, the present suit at the apex court is an abuse of court process.
He further pointed out that the issue of salary and emoluments are expressly stated in the constitution as the responsibility of the federal government, but that the section was silent on funding of capital projects.
“We, therefore, urge my lords to dismiss this suit with a reasonable cost,” Gazali said.
However, Alegeh urged the supreme court to discountenance the argument by the AGF.
“This is a dispute between the state and the federal government. The states and the federal government were defendants in the case. The plaintiff was JUSUN,” he said.
“Even if a state had raised this issue before the federal high court, the federal high court would have no jurisdiction to hear the matter because the constitution provides that all disputes between states and federal government are to be determined by the supreme court.”
He also submitted that the judgment at the high court relates to section 121 of the 1999 constitution, “which deals essentially with funding of inferior courts (magistrate courts, area courts), and we have admitted that is our responsibility and we are meeting it”.
“JUSUN cannot raise a dispute between the states and the federal government. Only the states or the federal government can trigger the original jurisdiction to come to the supreme court,” he added.
Meanwhile, five senior advocates of Nigeria, were invited by the supreme court to offer legal opinion on the matter.
Adegboyega Awomolo, Olisa Agbakoba, Sebastian Hon, Mahmud Magaji and Musibau Adetunbi, were the senior advocates who announced their appearances as amicus curiae (friends of the court).
Awomolo, who took the position of the states, said “the defendants have admitted that they have been funding the recurrent expenditure of the states, but did not provide reasons why they have refused to fund the capital expenditure.”
He said it is the responsibility of the federal government to fund both recurrent and capital expenditure.
“My submission is that the presidential executive order 010 is unconstitutional,” Awolowo added.
On his part, Agbakoba said both the states and the federal government have breached the constitution.
He said the act of the Lagos state government in funding its state judiciary is contrary to the provisions of the constitution, but agreed that it is the responsibility of the federal government to fund both the recurrent and capital expenditure of courts.
He, however, maintained that the states are not entitled to a refund. “Nobody sent them,” he said.
Hon, another SAN, also agreed with Agbakoba and Awomolo.
But Magaji and Adetunbi, in their remarks, said funding of the state judiciary is not the responsibility of the federal government.
The court, thereafter, adjourned the matter till a later date, which will be communicated to the parties involved.