IN THE SUPREME COURT OF NIGERIA
HOLDEN AT ABUJA
SUIT NO. SC/ /2020
BETWEEN:
1. Honourable Attorney-General, Abia State ]
2. Honourable Attorney-General, Adamawa State ]
3. Honourable Attorney-General, Akwa-Ibom State ]
4. Honourable Attorney-General, Anambra State ]
5. Honourable Attorney-General, Bauchi State ]
6. Honourable Attorney-General, Bayelsa State ]
7. Honourable Attorney-General, Benue State ]
8. Honourable Attorney-General, Borno State ]
9. Honourable Attorney-General, Cross River State ]
10. Honourable Attorney-General, Delta State ]
11. Honourable Attorney-General, Ebonyi State ]
12. Honourable Attorney-General, Edo State ]
13. Honourable Attorney-General, Ekiti State ]
14. Honourable Attorney-General, Enugu State ]
15. Honourable Attorney-General, Gombe State ]
16. Honourable Attorney-General, Imo State ]
17. Honourable Attorney-General, Jigawa State ]
18. Honourable Attorney-General, Kaduna State ] – PLAINTIFFS
19. Honourable Attorney-General, Kano State ]
20. Honourable Attorney-General, Katsina State ]
21. Honourable Attorney-General, Kebbi State ]
22. Honourable Attorney-General, Kogi State ]
23. Honourable Attorney-General, kwara State ]
24. Honourable Attorney-General, Lagos State ]
25. Honourable Attorney-General, Nasarawa State ]
26. Honourable Attorney-General, Niger State ]
27. Honourable Attorney-General, Ogun State ]
28. Honourable Attorney-General, Ondo State ]
29. Honourable Attorney-General, Osun State ]
30. Honourable Attorney-General, Oyo State ]
31. Honourable Attorney-General, Plateau State ]
32. Honourable Attorney-General, Rivers State ]
33. Honourable Attorney-General, Sokoto State ]
34. Honourable Attorney-General, Taraba State ]
35. Honourable Attorney-General, Yobe State ]
36. Honourable Attorney-General, Zamfara State ]
AND
Honourable Attorney-General of the Federation ] – DEFENDANT
PLAINTIFFS’ WRITTEN BRIEF OF ARGUMENT
Prepared by: ____________________________________
Augustine o. Alegeh, SAN FCIArb [UK]
Babajide Koku, SAN
Solomon Umoh, SAN
Garba Tetengi, SAN
Tawo Eja Tawo SAN
Olaseni Adio SAN
Ekeme Ohwovoriole, SAN
Paul Harris Ogbole, SAN
Aikhunegbe A. Malik, SAN [SIGNED]
Olawunmi Nwano (Mrs.)
Oroma Azeez (Mrs.)
Kelechi Onwuegbuchulem Esq.
Chinwe Onumonu Esq.
Abdul Ibrahim Badamasi Esq.
Plaintiffs’ Counsel
A.O. Alegeh & Co.
Legal Practitioners & Notaries Public
22, Ziguinchor Street
Off IBB Way
Wuse Zone 4
Abuja
Federal Capital Territory
FOR SERVICE ON:
The Honourable Attorney General of The Federation
Federal Ministry of Justice,
Shehu Shagari Way,
Maitama
Abuja
TABLE OF CONTENTS
PAGE [S]
INTRODUCTION——————————————25-26
STATEMENT OF FACTS———————————–26-27
ISSUES FOR DETERMINATION—————————27-28
PLAINTIFFS’ ARGUMENTS——————————-28-41
SUMMARY OF PLAINTIFFS’ ARGUMENTS—————41-42
CONCLUSION——————————————-42
LIST OF AUTHORITIES————————————43
Introduction
The Plaintiffs are the thirty- six [36] 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 Defendant has since the coming force of the Constitution of the Federal Republic of Nigeria, 1999 [As Amended] [hereinafter referred to as “CFRN”] on the 1st of October, 1999, been funding only the salaries of judicial officers of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the Plaintiff States.
The Plaintiffs have been compelled by the 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 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.
The Defendant has refused to take up the funding of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the Plaintiff States despite the clear and unambiguous provisions of CFRN in respect thereof.
The Plaintiff States have consequently instituted this action under the Original jurisdiction of this Honourable Court, seeking for the interpretation of Sections, 6, 81[3] of the 1999 Constitution [as amended], read together with Item 21[e] of the Third Schedule to CFRN to determine whether the constitutional responsibility and/or obligation of funding the capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the Plaintiff States does not rest with the Defendant.
The Originating Summons is dated 16th September, 2020 and is supported by an affidavit of 63 paragraphs deposed to by Chinweoke Onumonu (Miss), one of the counsel representing the Plaintiffs herein. Attached to the affidavit is an exhibit marked as Exhibit A. Reliance is placed on all the depositions in the affidavit as well as the solitary Exhibit attached thereto in urging the Court to grant the reliefs sought in the Summons.
Statement of Facts
The Plaintiff States are currently saddled with the responsibility of funding the capital and recurrent expenditure for the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the Plaintiff States apart from the salaries of the judicial officers which is paid by the Defendant through the National Judicial Council [NJC].
This obligation has a tremendous impact on the finances of the Plaintiff States and currently accounts for a significant portion of the revenue accruing to the Plaintiff States on a continuous basis.
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 Defendant has ONLY been funding the Supreme Court, Court of Appeal, Federal High Courts and High Court of the Federal Capital Territory. In respect of State High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the Plaintiff States, the Defendant has only been paying salaries of Judicial Officers of those Courts.
All other recurrent expenditure of the above Courts other than salaries have been funded by the Plaintiff States since 1999 at the direction of the Defendant.
Judicial Officers are not appointed for State High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the Plaintiff States unless the Plaintiff provides Courtrooms, vehicles and adequate accommodation for the said Judicial Officers.
That on 22nd May, 2020, the Defendant issued Presidential Executive Order No. 00-10 of 2020 seeking to compel the Plaintiff States to fund the State High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the Plaintiff States.
The Plaintiffs’ complaint and dispute with the Defendant is that by the provisions of 1999 Constitution, it is the Defendant that has the constitutional duty, responsibility and obligation to fund ALL capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the Plaintiff States.
In the face of the continuing and persistent refusal of the Defendant to fulfil its constitutional duty and obligation, the Plaintiffs have invoked the original jurisdiction of the Supreme Court to resolve the dispute and determine the respective constitutional rights, duties, responsibilities and obligations of the Parties under the Constitution.
Issues For Determination
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.
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
Plaintiffs’ Arguments
The case of the Plaintiffs calls for the interpretation of the constitutional provisions on the funding of capital and recurrent expenditure for the judiciary.
The facts on the funding of the Judiciary as set out in the Plaintiffs’ affidavit in support of the Originating summons are undisputed and accepted facts. The affidavit clearly sets out the current position in respect of funding of the Judiciary.
A consideration of relevant Constitutional Provisions.
The case of the Plaintiffs would be better appreciated by a review of the salient provisions of the Constitution which the Plaintiffs humbly request the Supreme Court to interpret in the resolution of this dispute. The provisions are Sections 6 and 81[3] as well as Item 21[e] of the Third Schedule thereto.
Section 6 of Constitution:
My Lords, for purpose of completeness, the provisions of section 6 of the Constitution are set out below thus:
“(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 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.”
The essence of Section 6 of CFRN as set out above is to establish the judicial powers of the Courts of the Federation and to set out the Courts to which the section relates as set out in Section 6[5] therein.
The Plaintiffs respectfully submit that the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the Plaintiff States to which this dispute relates are listed in section 6[5] as numbers [e], [g] and [i] respectively.
The Plaintiffs contend that the fact that the Courts to which this dispute relates [the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the Plaintiff States] are Courts established under Section 6 of CFRN is consequently not a fact in dispute but a moot fact.
Section 81(3) of CFRN:
Section 81[3] of CFRN which provides thus:
“The amount standing to the credit of the –
………………
………………
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 provisions of Sections 81[3] of the CFRN as set out above make it clear that the funds are for disbursement to the heads of the courts established for the Federation and the States under section 6 of this Constitution.
The Plaintiffs respectfully submit that as shown in Paragraph 4.6 above the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the Plaintiff States to which this dispute relates are Courts for the State established under section 6 of CFRN.
The Plaintiffs respectfully submit that a literal interpretation of the above clear, lucid and unambiguous provisions of section 81[3] of 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.
The Plaintiffs humbly invite the attention of your Lordships to the deliberate use or employment in Section 81(3) of the following words or phrase viz;
“heads of the courts established for the Federation and the State”
[Underlining supplied]
Which puts it beyond any argument that the drafters of Constitution intend that the Defendant should fully fund all capital and recurrent expenditure for all the Courts established under Section 6(5).
The current practice of the Defendant in funding ONLY the salaries of the judicial officers of these State Courts and refusing to fund the capital and other recurrent expenditure thereof constitutes an infraction of the Constitution. The practice goes against the spirit and intent of the Constitution. It is our submission that the current practice is unjustifiable in the face of the clear and unambiguous provisions of the Constitution.
The Plaintiffs respectfully submit that the provisions of Section 81(3) of CFRN impose a duty, responsibility and obligation on the Defendant to fund the capital and recurrent expenditure for all the Courts established under Section 6(5) of the Constitution including the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the Plaintiffs’ respective States.
Item 21[e] of the Third Schedule to CFRN:
The provisions of Item 21[e] of the Third Schedule to 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. For the avoidance of any doubt, the provisions of Item 21[e] of the Third Schedule to the Constitution are set down below:
“The National Judicial Council shall have power to-
(e) collect, control and disburse all moneys, capital and recurrent, for the Judiciary”
The constitution 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 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.
The resultant effect of the aforesaid breach is that the respective Plaintiff States are now funding two (2) sets of Courts.
Section 121(3) of CFRN
Section 121(3) of CFRN provides thus:
“Any amount standing to the credit of the-
House of Assembly of the State; and
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”
The above provisions of Section 121(3) of the CFRN was amended by the Constitution of the Federal Republic of Nigeria (Fourth Alteration, No. 4) Act, 2017 and provides for the financial autonomy of the State Legislature and State Judiciary.
The CFRN vide its provisions in Section 121(3), vests the funding of Courts not listed and/or set out under Section 6(5) of the CFRN in the respective States of the Federation.
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 consequence of the above is that the Plaintiff States are now being forced to fund Courts listed under Section 6(5) of CFRN as well as Courts not listed therein.
We respectfully submit, that the funding of the Courts listed in Section 6(5) of CFRN is the Constitutional responsibility of the Federal Government. The State Governments are charged with funding the current and recurrent expenditure of Courts not listed in Section 6(5) of the CFRN but created by the House of Assembly of the respective Plaintiff States.
The Defendant in the face of the above constitutional provisions has refused, failed and neglected to fund the capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the Plaintiff States.
Interpretation of the provisions of the Constitution
Over the years, the Supreme Court has consistently stated the principles for the interpretation of provisions of the Constitution.
The Courts, in a plethora of cases, has stated that once the provisions of the Constitution are clear and devoid of any form of ambiguity, they should be given or accorded their natural meaning without any embellishment. In other words, provisions of the Constitution must always be interpreted to achieve the obvious ends for which the Constitution was promulgated. See A.G Bendel State vs. A.G Federation (1982) 3 NCLR 1.
Whilst considering the question of what the Court should do when faced with Constitutional provisions, the Supreme Court in the case of A.G Lagos State v. Eko Hotels Limited (2006) NWLR (Pt. 1011) 378 per Niki Tobi JSC held at page 458 paras B-E as follows:
“the Constitution is clear and can be captured at a glance of the language. However, where the meaning is not directly obvious on the face of the language, the court will investigate the intention behind the use of the language and come out with an interpretation or construction that best fits the apparently hidden intention. That is one principle of constitutional interpretation. Another principle is that courts are enjoined to give a liberal interpretation to the language of the Constitution in order to achieve the desired purpose of the maker of the Constitution. The court will not embark upon such an exercise where the language is exact, precise and concise and therefore not able to admit a liberal interpretation the court will succumb to the clear meaning. The court takes this position of least resistance because it cannot wear gloves for battle with the makers of the Constitution as that will vex or annoy their intention. After all, the law of statutory interpretation is clear that courts will invoke their interpretative jurisdiction to vindicate the intention of the law makers”
In A.G Kano State v. A.G Federation (2007) 6 NWLR (Pt. 1029) 164, the Supreme Court, relying on the strength of its earlier decisions, held inter alia at page 188 at Paragraph H as follows:
“The Court has a duty to interpret the words contained in the Constitution and any Statute in their ordinary and literal meaning. In other words, it is not the duty of the court to go outside the words used in a statute to import an interpretation which may be or is convenient to the court or to the parties to one of the parties”
In the case of AG Lagos State v. AG Federation (2014) LPELR – 22701 (SC), the Supreme Court also held at pages 129-130 as follows:
“It is settled principle of Interpretation that whenever a court is faced with the interpretation of a constitutional provision, the Constitution must be read as a whole in determining the object of the particular provision. This requirement places a duty on the court to interpret the related Sections of the Constitution together”
The Supreme Court in AG Lagos State vs. AG Federation supra cited with approval its earlier decision in Honourable Justice Raliat Elelu-Habeeb (Chief Judge of Kwara State) vs. A.G Federation & 2 Ors (2012) 13 NWLR (Pt. 1318) , where it was held inter alia at page 521, paras C-D as follows:
“The duty of the court when interpreting a provision of the Constitution is to read and construe together all provisions of the Constitution unless there is a very clear reason that a particular provision of the Constitution should not be read together. It is germane to bear it in mind the objective of the Constitution in enacting the provisions contained therein. A section must be read against the background of other sections of the Constitution to achieve a harmonious whole. This principle of whole statute construction is important and indispensable in the construction of the Constitution so as to give effect to it”
See generally AG Abia vs. A.G Federation (2018) 17 NWLR (PT. 1648) 299 at 346, 350, 353
In the case of A.G Lagos State vs. A.G Federation (2004) 18 NWLR (Pt. 904) 1 at Pg 142-143, the Supreme Court held as follows:
“Well established rules of interpretation require that the meaning and intention of the framers of a Constitution must be ascertained from the language of that Constitution itself”
Flowing from the above principle of law, there is no basis whatsoever under the CFRN for the Defendant to pick and choose the Courts it wants to fund. The Defendant’s current practice of paying only salaries cannot be situated in any provision of the CFRN.
It is submitted that the provisions of sections 6(5), 81(3) and Item 21(e) of the Third Schedule to the Constitution are plain, simple straightforward and unambiguous that there should be no difficulty in interpreting them. Indeed, it is submitted that the only interpretation which can be ascribed to the aforesaid provisions is the one that accords with the intention of the CFRN to the effect that the Federal Government should fund both the recurrent and capital expenditure of the Courts listed or mentioned in Section 6(5) of the Constitution.
Constitutionality of Presidential Executive Order No. 00-10 of 2020
It is the Plaintiffs argument that the Presidential Executive Order No. 00-10 issued by the President of the Federal Republic of Nigeria on 22nd May, 2020 is unconstitutional as the said Executive Order seeks to compel State Governments to fund recurrent and capital expenditure of the State High Courts, Sharia Courts of Appeal and Customary Courts of Appeal, which form part of the Courts whose funding is the prerogative of the Federal Government in line with the provisions of Sections 6, 81(3) and Item 21[e] of the Third Schedule to CFRN.
Paragraph 6(a) of the said Presidential Executive Order No. 00-10 of 2020 which deals with Special Allocation for the Judiciary provides as follows:
“Notwithstanding the provisions of this Executive Order, in the first three years of its implementation, there shall be special extraordinary capital allocations for the Judiciary to undertake capital development of State Judiciary Complexes, High Court Complexes, Sharia Court of Appeal, Customary Court of Appeal and Court Complexes of Other Courts befitting the status of a Court”
It is crystal clear from the aforesaid cited paragraph of the Presidential Executive Order No. 00-10 of 2020 that the respective State Governments are expected to fund the aforesaid capital developments of the Judiciary which include Courts listed under Section 6 of the CFRN whose funding falls under the exclusive preserve of the Federal Government.
Additionally, the provision of a State Judiciary Budget Committee in the said Presidential Executive Order No. 00-10 to include the Chief Judge of the State High Court, Grand Khadi of the Sharia Court of Appeal and President of the Customary Court of Appeal who are Heads of Courts listed under Section 6 of CFRN, clearly indicate that the Courts which the respective State Governments are expected to fund within the contemplation and interpretation of Presidential Executive Order No. 00-10 of 2020, include the High Courts of the State, Sharia Court of Appeal and Customary Court of Appeal.
Sections 80 and 120 of the CFRN provides for the establishment of a Consolidated Revenue Fund for the Federation and States respectively and the parameters for withdrawals and/or deductions in respect thereof.
Sections 81 and 121 of the CFRN provides for the appropriation and authorization of expenditure from the Consolidated Revenue Funds of the Federation and the States respectively provide that the funding of the Judiciary shall be from the Consolidated Revenue Fund of the Federation and States respectively and places the responsibility of the allocation and disbursement of the said funds on the Federal and State Executive respectively.
That the provisions of Sections 80, 81, 120 and 121 of CFRN are quite plain, unambiguous and do not admit of any difficulty in interpretation is beyond argument. Indeed, the CFRN clearly provides for the modalities of appropriation and authorization of expenditure from the Consolidated Revenue Fund under the aforesaid sections of the CFRN and the draftsmen of the Constitution did not contemplate a situation whereby the Federal Executive would interfere with the authorization of expenditure from the Consolidated Revenue of the State as envisaged in the provisions of the Presidential Executive Order No. 00-10 of 2020.
Paragraphs 1(b) and 7(b) of the Presidential Executive Order No. 00-10 of 2020 vests enormous powers in the Accountant-General of the Federation who is empowered to make deductions from the funds due to State Governments and which form part of the Consolidated Revenue Funds of the State Governments as established under the Constitution.
Paragraph 1(b) referred to above provides inter alia as follows:
“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)”.
Paragraph 7(b) also provides inter alia as follows:
“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”.
The aforesaid paragraphs of Presidential Executive Order No. 00-10 of 2020 which mandate 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, thus null and void.
Section 120 of the CFRN clearly sets out the conditions and/or parameters for any deduction and/or withdrawal from the Consolidated Revenue Fund of the States of the Federation. Any such deductions and/or withdrawal from the Consolidated Revenue Fund of States must be authorised by an Appropriation Law or any law passed by the House of Assembly of the State.
The powers vested in the Accountant-General of the Federation to make deductions from funds which form part of the Consolidated Revenue of the States of the Federation is inconsistent with the clear and unambiguous provisions of Section 120 and 121 of the CFRN.
My Lords, it is trite 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.
In Ugboji v. State (2018) 10 NWLR (Pt. 1627) 346, this Honourable Court restated the supremacy of the Constitution over any Order and/or law when it held as follows:
“My Lords, permit me to reiterate that the Constitution of the Federal Republic of Nigeria of 1999, as amended, had by Section one, made provision to emphasize or assert its supremacy. By that provision, any law/statute or provisions thereof that runs riot and violent to the provisions of the Constitution or is in conflict with the constitutional provision is null and void to the extent of inconsistency”
See generally:
A.G Ondo State v. A.G Federation & Ors. (2002) 9 NWLR (Pt. 772) 226;
Kekong v. State (2017) 18 NWLR (Pt. 1596) 108
Relying on the strength of the arguments canvassed above, we respectfully urge your Lordships to declare the Presidential Executive Order No. 00-10 of 2020 null and void in view of its inconsistency with the express, clear and unambiguous provisions of the Constitution in respect of the funding of the State Judiciary.
Effect of Defendant’s Constitutional Breach
The Plaintiffs, in the face of the failure of the Defendant to fulfil and perform its constitutional obligation of funding the High Courts, Sharia Court of Appeal and Customary Court of Appeal of the Plaintiff States, have funded all the capital expenditure for the said Courts in the Plaintiff States.
The Plaintiffs have in consequence of funding the said Courts, deprived other sectors of the Plaintiff States of funds that the Plaintiff States would have utilized in respect of those sectors.
The Plaintiff States have set out in the affidavit in support of their Originating Summons the amounts expended by the respective Plaintiff States in funding the Capital expenditure of the said Courts and same is further specified in the Exhibit A in the said affidavit.
In view of the foregoing arguments and cited authorities, we respectfully urge your Lordships determine the two questions raised in the Originating Summons in the affirmative and grant all the reliefs claimed therein by the Plaintiff States.
Summary of Plaintiffs’ Arguments
The provisions of Section 6[5[ and 81[3] when read together with item 21[e] of the Third Schedule to the Constitution clearly impose and create a constitutional duty, responsibility and obligation on the Defendant to fund both the capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the Plaintiff States, being Courts established by Section 6 of the Constitution.
The Plaintiff States are entitled to be refunded and reimbursed by the Defendant, all the Funds expended by the Plaintiff States in respect of the capital and recurrent expenditure for the said Courts, which said expenditure was incurred as a direct result of the refusal and failure of the Defendant to fund same.
That the Defendant be compelled to henceforth fund both capital and recurrent expenditure for the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the Plaintiff States.
It is the Plaintiffs’ submission that the Presidential Executive Order No. 00-10 of 2020 made by the President of the Federal Republic of Nigeria on 22nd May, 2020 contains provisions which are inconsistent with the express provisions of the CFRN.
This Honourable Court is invited to critically examine the Presidential Executive Order No. 00-10 of 2020 vis-à-vis the relevant provisions of the CFRN and to declare same as null and void in view of its inconsistency with the CFRN.
Conclusion
Finally and on the strength of the arguments contained in the preceding paragraphs of this brief, the Plaintiffs urge this Honourable Court to allow the Originating Summons positively in their favour for the reasons, amongst others, of deepening our Democracy and further enthronement of the tenets of the Rule of Law.
Dated the 16th day of September, 2020.
Settled by: ____________________________________
Augustine o. Alegeh, SAN FCIArb [UK]
Babajide Koku, SAN
Solomon Umoh, SAN
Garba Tetengi, SAN
Tawo Eja Tawo SAN
Olaseni Adio SAN
Ekeme Ohwovoriole, SAN
Paul Harris Ogbole, SAN
Aikhunegbe A. Malik, SAN [SIGNED]
Olawunmi Nwano, Esq. (Mrs)
Oroma Azeez, Esq. (Mrs)
Kelechi Onwuegbuchulem, Esq.
Chinwe Onumonu, Esq.
Abdulhakeem Ibrahim Badamasi, Esq
Plaintiffs’ Counsel
A.O. Alegeh & Co.
Legal Practitioners & Notaries Public
22, Ziguinchor Street
Off IBB Way
Wuse Zone 4
Abuja
Federal Capital Territory
FOR SERVICE ON:
The Honourable Attorney General of The Federation
Federal Ministry of Justice,
Shehu Shagari Way,
Maitama
Abuja
LIST OF AUTHORITIES
STATUTES
Constitution of the Federal Republic of Nigeria (1999 as amended)
JUDICIAL AUTHORITIES
A.G Bendel State vs. 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
AG Lagos State v. AG Federation (2014) LPELR – 22701 (SC)
AG Abia vs. A.G Federation (2018) 17 NWLR (PT. 1648) 299 at 346, 350, 353
A.G Lagos State v. A.G Federation (2004) 18 NWLR (Pt. 904) 1 at Pg 142-143
A.G Ondo State v. A.G Federation & Ors. (2002) 9 NWLR (Pt. 772) 226
Kekong v. State (2017) 18 NWLR (Pt. 1596) 108
Ugboji v. State (2018) 10 NWLR (Pt. 1627) 346