Supreme Court reserves judgement on states' suit challenging Buhari's Executive Order 10

The Supreme Court, on Monday, reserved judgement on a suit instituted by the Attorneys-General of the 36 states of the federation, challenging the constitutionality of the Presidential Executive Order 10 issued in 2020 to enforce financial autonomy of state judiciaries and legislatures.

A full panel of seven Justices of the Supreme Court reserved the case for judgment after listening to the arguments of lawyers to parties in the suit.

Musa Dattijo, who headed the seven-member panel, said the counsel to the “parties would be notified when the judgement is ready.”

Earlier, Augustine Alegeh, lawyer to the Attorneys-General of the 36 states, argued that it is the responsibility of the federal government to fund capital and recurrent expenditures of states’ High Courts and other states’ superior courts of record established by the Nigerian Constitution.

Mr Alegeh, a Senior Advocate of Nigeria and former President of the Nigerian Bar Association (NBA), contended that Executive Order 10 breached the Nigerian constitution as it sought to compel state governors to fund the recurrent and capital expenditures of the state courts.

“It is the plaintiffs’ argument that the Presidential Executive Order No. 00-10 issued by the President of the Federal Republic of Nigeria on 22 May 2020 is unconstitutional as the said Executive Order seeks to compel state governments to fund recurrent and capital expenditures of the State High 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(3) of the Third Schedule to the Constitution of the Federal Republic of Nigeria,” their filing read in part.

The Executive Order, which was issued last year by President Muhammadu Buhari, empowers the Accountant-General of the Federation to make deductions meant for state judiciaries from the state governments’ allocations and pay them to the National Judicial Council (NJC), which will then remit the deducted funds to the heads of courts in the states of the federation.

PREMIUM TIMES earlier reported that the plaintiffs argued in their suit that this practice as provided for in the Executive Order is against the provisions of sections 6(5), 81(3) and item 21(3) of the Third Schedule of the Nigerian constitution.

According to them, the constitutional provisions, when read together, “clearly impose and create a constitutional duty, responsibility and obligation” on the federal government “to fund both the capital and recurrent expenditure of the courts established by section 6 of the constitution.”

The courts established under section 6 of the constitution are the High Courts, Sharia Courts of Appeal and the Customary Court of Appeal of states, along with the federal courts, including the Supreme Court.

The plaintiffs asked the court to not only declare Executive Order 10 unconstitutional but to also order the federal government to “fund the capital and recurrent expenditure” of the state courts.

‘N66 billion refund’

In his submissions on Monday, Mr Alegeh urged the apex court to compel the federal government to refund N66 billion to the state governments as funds expended in funding the capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal.

However, the Attorney General of the Federation (AGF) through his lawyer, Tijani Gazali, opposed the arguments of the plaintiffs.

Mr Gazali, a SAN, said there is no express provision in the Nigerian constitution, compelling the federal government to fund the capital expenditure of the states judiciaries.

He, however, conceded that it is the responsibility of the federal government to undertake recurrent expenditure of the courts only to the extent of paying the remuneration, salaries, and allowances of the judges, which Mr Gazali noted the federal government had been diligently performing.

The AGF, who is the sole defendant in the suit, argued that although the constitution provided for the establishment of states’ High Courts, Sharia Courts of Appeal and Customary Courts of Appeal “it was the respective state laws which created them that actually set the operations of these courts in motion”.

It is also the state laws, according to the AGF, that confer powers on the courts to make them functional as the states’ courts.

“We urge the court to dismiss the plaintiffs’ suit with a reasonable cost,” Mr Gazali, who is the acting director of Civil Litigation at the Federal Ministry of Justice said in his closing argument.

Supreme Court invites top lawyers for legal perspectives

Meanwhile, the Supreme Court had prior to Monday’s proceedings, invited some Senior Advocates of Nigeria, as amici curiae (friends of the court) to give their perspectives on the matter.

One of the amici curiae, Musibau Adetunbi, argued that the constitution sufficiently provided the manner the federal government and states should fund their courts.

“My position is that part of the load that the Constitution wants the FG to carry is narrowed down in Section 84(7) while Section 121 also narrows down the load it wants the state governments to carry,” Mr Adetunbi said.

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He faulted Executive Order 10, urging the apex court to grant only prayer 9 and dismiss the rest of prayers 1 to 8.

Similarly, Mahmud Magaji argued that the status quo be maintained with the federal government continuing to fund only recurrent expenditures while the state governments continue to bear the burden of funding capital expenditures.