Executive Order 10 illegal, you overstepped your bounds, Supreme Court tells Buhari

February 12, 2022
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The Supreme Court, in a split decision of six Justices to one, on Friday in Abuja nullified the Executive Order 10 initiated by the President Major General Muhammadu Buhari (retd.), to grant financial autonomy to the State Judiciary and Legislature.

The apex court held that the Executive Order 10 was inconsistent with the 1999 Constitution and therefore unconstitutional, illegal, null and void and of no effect.

In a judgment by Justice Muhammed Dattijo in the suit by the 36 states against the Federal Government, the court rejected the request of the 36 state governments for an order to compel the Federal Government to take up funding of capital projects for State High Courts, Sharia Court of Appeal and Customary Court of Appeal.

The Justices also refused to grant an order sought by the 36 state governors to compel the Federal Government to pay them N66bn being an amount they claimed to have so far spent on capital projects for the three courts in their respective states.

Six Justices led Mohammed Musa Dattijo agreed that the contentious Executive Order 10 violated the provisions of the 1999 Construction which clearly stipulates the functions and powers of heads of each arm of the government.

“This country is still a federation and the 1999 Constitution it operates is a federal one. The Constitution provides a clear delineation of powers between the state and the “The President has overstepped the limit of his constitutional powers by issuing the Executive Order 10. The country is run on the basis of the rule of law,” Justice Mohammed said in the lead majority judgment.

According to them, President Muhammad Buhari over-stepped his bounds with the Executive Order 10 and thereby engaged in breach of the constitution and usurpation of powers of heads of other arms of government.

The six Justices are Muhammed Dattijo, Centus Chima Nweze, Hellen Ogunwumiju, Emmanuel Agim, Ejembi Eko and Adamu Jauro.

Only Justice Uwani Abba-Aji gave endorsement to the Order 10, adding that it was in line with the provisions of the Constitution to enforce the separation of powers and functions.

“We are not unaware of the hanky-panky, subterfuge played by state governors against the independence and financial autonomy of state judiciary.

“It is a pitiable eyesore what judicial officers and staff go through financially at the hands of state executives, who often flout constitutional and court orders to their whims and caprices.

“Thus, the presidential Executive Order 10 is meant to facilitate the implementation of the constitutional provisions…the Executive Order is to aid the states legislature and judiciary in curing the constitutional wrong of their financial autonomy which the state have always denied. This is not unconstitutional.

However, four of the seven-man panel of Justices turned down the request of the 36 state governors for an order of the apex court to compel the Federal Government to take up funding of capital projects for state High Courts, Sharia Court of Appeal and Customary Court of Appeal,

The four Justices upheld the opposition of the Attorney General of the Federation, Abubakar Malami (SAN), and two other senior lawyers, Mahmud Magaji (SAN), and Musibawu Adetumbi (SAN), on the issue.

They upheld the arguments of Malami, Magaji and Adetunbi to the effect that capital projects for the three courts should be funded by the states and not the Federal Government.

The apex court Justices specifically agreed with Adetunbi (SAN) who was one of the amici curiae, that the 1999 Constitution had sufficiently provided the manner the federal and states should fund their courts.

They further upheld his submission that part of the load that the Constitution wanted the Federal Government to carry was narrowed down in Section 84(7) while Section 121 also narrowed down the load it wanted the state governments to carry.

Adetunbi’s opposition against the Executive Order 10 and his prayer that it should be declared illegal, unconstitutional, voided and set aside was also upheld.

The four Justices are Mohammed Musa Dattijo,Centus Chima Nweze, Hellen Ogunwumiju and Uwani Musa Abba-Aji.

With the majority decision, the state governments are to continue the funding of the three courts as they have been doing since 1999.

Attorney General of Abia State had on behalf of 35 others dragged the Attorney General of the Federation before the Supreme Court, praying for an order to compel the Federal Government to take up funding of capital projects for the three courts on the ground that they remained the courts of the federation and as such the funding of their capital project should flow from the Consolidated Revenue Fund of the Federation.

Their lead counsel, Chief Augustine Alegeh SAN, had argued that the salaries and emoluments of the judges of the three courts were being paid by the Federal Government in line with section 81 of the 1999 Constitution and as such the section should be invoked to place the responsibility of funding their capital projects at the doorsteps of the Federal Government.

The 37 state governments had in their joint suit also applied for an order of the apex court to compel the Federal Government to pay them N66bn being an amount they had so far spent on capital projects for the three courts in their respective states.

However, the AGF represented by Tijani Gazali (SAN), had opposed the request of the states and had urged the apex court to dismiss it.

He had canvassed that since the states had been responsible for the funding of capital projects of the courts since 1999, the position should be maintained.

In the bid to resolve the constitutional logjam, the Chief Justice of Nigeria, Honourable Justice Ibrahim Tanko, had invited five SANs as Amici Curies (friends of court) for their input in resolving the matter.

However, three out of the five SANs; Chief Adegboyega Awomolo, Olisa Agbakoba and Chief Sebastine Hon, had thrown their weight behind the request of the 36 governors.

In their separate submissions, they had argued that the Federal Government should be responsible for the funding of capital projects for the three courts, since they were courts established for the federation.

Two other senior lawyers, Mahmud Magaji SAN and Musibawu Adetumbi SAN expressed dissenting views on the contentious issue.

They had aligned themselves with the AGF that capital projects for the three courts should be funded by the states and not the FG.

  

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