Vanguard (Lagos)

26 May 2014

Nigeria: Court Strips Jonathan of Powers to Okay Judges' Salaries

Abuja — A Federal High Court sitting in Abuja, Monday, held that in line with 81(2) and section 84(1), (2), (3), (4) and (7) of the 1999 Constitution, as amended, the President, has no power to approve funds for the remuneration, salaries, allowances and recurrent expenditures of the judiciary.

The Court maintained that such funds are constitutionally guaranteed charges (or "First Charge") on the Consolidated Revenue Fund of the federation.

Delivering judgment in a suit that was filed by a former President of the Nigerian Bar Association, NBA, Chief Olisa Agbakoba, SAN, Justice Ahmed Mohammed, directed that henceforth, funds belonging to the judiciary in the Consolidated Revenue Fund should be released to the National Judicial Council, NJC, in full, for disbursement for the needs of the various courts across the federation.

The court stressed that the continued dependence of the judiciary on the Executive Arm of government for its budgeting and release of funds was directly responsible for the present state of under-funding of the judiciary, corruption, poor and inadequate judicial infrastructure and low morale among judicial personnel.

According to Justice Mohammed, "It is beyond doubt that funding of the judiciary is provided for and guided by the constitution. The practice whereby the Minister of Finance control funds meant for the judiciary clearly offends the provisions of the constitution and undermines the financial independence of the judiciary.

"Times without number, budgetary estimates for the judiciary are being tampered, and this affects the dispensation of justice in the country.

"It is a cardinal principle in law is that clear words of a statute should be given its ordinary meaning.

In this regards, the words of sections 81(2) and section 84(1), (2), (3), (4) and (7) of the 1999 Constitution, as amended, are very clear and devoid of ambiguity and should therefore be accorded its ordinary meaning.

"Consequently, the provision of the constitution in sections 81 and 84 of the constitution involving the funding of the judiciary should be given the ordinary meaning. It is also worth mentioning that the constitution established the principle of separation of powers.

"Taking a look at the prolonged practice where the Ministry of Finance which is under the executive approve the funds to be given to the Judiciary I asked myself, is the Judiciary also a Ministry, agency or department under the Executive? If so, why then did the constitution provide for separation of powers?

"I am unable to find any provision in the constitution that makes the judiciary financially subservient to the Executive. Checks and balances do exist but that does not in any way amount to control.

"That the practice had been going on for a while does not make it legal. If the National Assembly does not submit its budget estimate to the Executive, why then should the Judiciary be made to do so?

"Section 1(1) of the constitution underscores the importance and binding effect of the constitution which is supreme.

"The constitution does not recognize the practice of the judiciary submitting its annual budget to the Executive for approval and the court has the powers to arrest such unconstitutional act.

"In the final analysis, this court has found merit in the plaintiff's suit and I hereby grant all the reliefs sought by the plaintiff. That is the judgment of this court" the Judge ruled.

Earlier, the court dismissed all the preliminary objections that were raised against the suit by the National Assembly which challenged the locus-standi of the plaintiff to institute the action.

The National Assembly which was joined as the 3rd defendant in the suit had in its preliminary objection sought the dismissal of the suit on grounds that it was incompetent and also constituted an abuse of court process.

Describing the plaintiff as "a busy-body and meddlesome interloper", the National Assembly, argued that the suit was an invitation to anarchy, saying it was nothing but an attempt a by one arm of government to stop another arm from performing its constitutional duty.

It further challenged the jurisdiction of the court to hear the matter, adding that the plaintiff failed to prove that his constitutional rights were impugned upon or showed any legal injury he sustained as a result of the budgetary system for the judiciary.

Besides, the National Assembly told the court that the case was capable of resulting into a constitutional crisis in Nigeria, just as it contended that the Revenue Mobilization and Fiscal Allocation Commission, RMFAC, ought to have been joined as a party to the suit.

However, Agbakoba maintained that as a tax payer in Nigeria and a Senior Advocate, he had sufficient interest to file the suit in order to protect the constitution.

He argued that the suit was for the court to interpret relevant sections of the constitution.

Meantime, while dismissing all the objections yesterday, Justice Mohammed stressed that every tax payer in Nigeria has sufficient interest to approach the court to enforce the law.

"I have no hesitation to come to the conclusion that in the peculiar nature of the case, the plaintiff has the locus-standi to institute and maintain this action

"The plaintiff has shown prima-facie that the suit is not frivolous. He has disclosed a reasonable cause of action", the Judge held.

Aside the National Assembly, the Federal Government and the NJC were also joined in the suit as 1st and 2nd defendants respectively.

Specifically, Agbakoba had in his bid to secure financial autonomy for the judiciary, prayed the court to among other things, determine whether by section 81(2) and section 84(1), (2), (3), (4) and (7) of the 1999 Constitution, as amended, the remuneration, salaries, allowances and recurrent expenditures of the judiciary, being constitutionally guaranteed charges (or "First Charge") on the Consolidated Revenue Fund of the federation, form part of the estimates to be included in the Appropriation Bill as proposed expenditures by the President as is the present practice

He equally urged the court to determine whether in-line with the provisions of the aforementioned sections, "The NJC ought to send its annual budget estimates to the Budget Office of the Executive Arm of Government or any other Executive Authority as is the present practice; or send the estimates directly to the National Assembly for appropriation?

Agbakoba contended that besides independent budgeting, the funds belonging to the judiciary in the Consolidated Revenue Fund ought to be released to the NJC in full for disbursement for the needs of the courts.

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