*Restrains Governor From Interfering With The Budget And Funds Allocated To The State Judiciary By The House Of Assembly

A Delta State High Court has ordered the Chief Judge of the State and the President of the Customary Court of Appeal to present their budgets directly to the State House of Assembly for legislative approval without the intervention or interference of the State Governor.

The decision was reached in the case of John Aikpokpo Martins and Olukunle Edun V. Governor of Delta State & Ors in SUIT NO: A/164/2022.

The case bordered on the interpretation, as well as, the appropriate consequence of sections 120 (4), 121 (2) & (3) and 124 (4) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

The case was filed by two lawyers who argued that the cause of action arose from the proclivity of the defendants to starve the judiciary of funds for its smooth running and operations.

In the suit, 7 issues were raised up for judicial determination, to wit:

Whether the 4th Defendant by virtue of the joint reading of the provisions of Sections 120(4), 121(2), 121(3) & 124(4) of the Constitution of the Federal Republic of Nigeria, 1999 as amended and the judgment of the Federal High Court in FHC/ABJ/CS/63/2013: OLISA AGBAKOBA V THE ATTORNEY GENERAL OF THE FEDERATION & 2 ORS is not mandatorily required to present directly. to and/or lay its estimates of expenditure directly before the 2nd Defendant.

  1. Whether by virtue of the joint reading of the mandatory provisions of Sections 120(4), 121(2), 121(3) & 124(4) of the Constitution of the Federal Republic of Nigeria, 1999 as amended and in compliance with the judgment of the Federal High Court in FHC/ABJ/CS/63/2013: OLISA AGBAKOBA V THE ATTORNEY GENERAL OF THE FEDERATION & 2 ORS the 5th Defendant is not compelled to pay directly to the 3rd and 6th Defendants (being the heads of Courts in Delta State) the amount standing to the credit of the Delta State Judicial Service Commission and/or the various Courts in Delta State in the Consolidated Revenue Fund of Delta State without further directive. recourse, consultation or interference from the 1st Defendant and/or any of his Commissioners, officers, agents, subordinates and/or agencies.
  2. Whether by virtue of the joint reading of the mandatory provisions of Sections 120(4), 121(2), 121(3) & 124(4) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, and in compliance with the judgment of the Federal High Court in FHC/ABJ/CS/63/2013: OLISA AGBAKOBA V THE ATTORNEY GENERAL OF THE FEDERATION & 2 ORS, the 1st Defendant, his Commissioners, officials, subordinates, agencies or departments under him have any vires or authority to demand for and receive from the 3rd, 4th and 6th Defendants the estimates of expenditure of the Delta State Judicial Service Commission (4th Defendant) and the Judiciary in Delta State for appropriation purposes.
  3. Whether by virtue of the joint reading of the mandatory provisions of Sections 120(4), 121(2), 121(3) & 124(4) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, and in compliance with the judgment of the Federal High Court in FHC/ABJ/CS/63/2013: OLISA AGBAKOBA V THE ATTORNEY GENERAL OF THE FEDERATION & 2 ORS, the 2nd Defendant has the vire, power or authority to demand for and receive from the 1st Defendant the estimates of expenditure of the Delta State Judicial Service Commission and/or the Judiciary in Delta State for appropriation purpose.
  4. Whether upon proper interpretation of the provisions of Sections 120(4). 121(2), 121(3) & 124(4) of the Constitution of the Federal Republic of Nigeria, 1999 as amended and the judgment of the Federal High Court in FHC/ABJ/CS/63/2013: OLISA AGBAKOBA V THE ATTORNEY GENERAL OF THE FEDERATION & 2 ORS, the 1st, 2nd, 3rd, 4th, 5th & 6th Defendants have not been persevering in gross illegality, wrongfulness and unconstitutional breaches with the practice of the 3rd, 4th and 6th Defendants submitting estimates of their expenditure and the Judiciary in Delta State to the 2nd Defendant. through the 1st Defendant or any of [the] department under it, for

appropriation purpose.

  1. Whether upon proper interpretations of the provisions of Sections 120(4), 121(2), 121(3) & 124(4) of the Constitution of the Federal Republic of Nigeria, 1999 as amended and the judgment of the Federal High Court in FHC/ABJ/CS/63/2013: OLISA AGBAKOBA V THE ATTORNEY GENERAL OF THE FEDERATION & 2 ORS, the 1st and 5th Defendants have not been persevering in gross illegality, wrongfulness and unconstitutional breaches with the practice of the 1st and 5th Defendants not paying over to the 3rd and 6th Defendants the amount standing to the credit of the Judiciary and/or the various Courts in Delta State in the Consolidated Revenue Fund of Delta State or paying same at their whims and discretion.
  2. Whether by virtue of the subsisting Judgment of the Federal High Court of Nigeria on (sic) in Suit No. FHC/ABJ/CS/63/2013: Olisa Agbakoba v. Attorney General of the Federation & 2 Ors., the collective actions of the 1st, 2nd, 3rd, 4th & 5th Defendants complained of are not in continued violation and contemptuous of the said Judgment.

Then upon the determination of the above questions, the Claimants seek the grant of the following reliefs against the Defendants, jointly and severally:

  1. A DECLARATION that by virtue of the provisions of Sections 120(4), 121(2). 121(3) & 124(4) of the Constitution of the Federal Republic of Nigeria, 1999 as amended and the judgment of the Federal High Court in FHC/ABJ/CS/63/2013: OLISA AGBAKOBA V THE ATTORNEY GENERAL OF THE FEDERATION & 2 ORS, the 1st Defendant is not required to present to and/or lay before the 2nd Defendant or any of its Committee, the budget and/or estimates of the 3rd, 4th & 6th Defendants and/or the Judiciary in Delta State.
  2. A DECLARATION that by virtue of the joint reading of the provisions of Sections 120(4), 121(2), 121(3) & 124(4) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, the 4th, 5th and 6th Defendants’ budget and/or estimates of their expenditure and the Judiciary in Delta State, after being passed by the 2nd Defendant are automatically charged upon the Consolidated Revenue Fund of Delta State and therefore, the 1st and 5th Defendants and/or any of their agents, subordinates and/or agencies lack the vires and authority to tamper with same or impose any condition for their disbursement and/or release of same to the 3rd and 6th Defendants.

A DECLARATION that upon proper interpretation of the provisions of Sections 120(4), 121(2), 121(3) & 124(4) of the Constitution of the Federal Republic of Nigeria, 1999 as amended and the judgment of the Federal High Court in FHC/ABJ/CS/63/2013: OLISA AGBAKOBA V THE ATTORNEY GENERAL OF THE FEDERATION & 2 ORS, the 1st, 2nd, 3rd, 4th, 5th & 6th Defendants have collectively and/or individually been acting in gross illegality, error, wrongfulness and unconstitutionality with the practice of the 3rd, 4th and 6th Defendants submitting estimates of their expenditure to the 1st Defendant and the Judiciary in Delta State for appropriation/budgeting purpose.

  1. A DECLARATION that by the combined provisions of Sections 120(4), 121(2), 121(3) & 124(4) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, the monies standing to the credit of the 3rd, 4th & 6th Defendants being charged upon the Consolidated [Revenue] Fund of Delta State, is not subject to discretionary release or payment of same by the 1st and 5th Defendants, their subordinates and/or any of their agents, (agencies), departments, officials and servants and/or any other Executive authority.
  2. A DECLARATION that by virtue of the subsisting Judgment of this Honorable Court in Suit No. FHC/ABJ/CS/63/2013: Olisa Agbakoba v. Attorney General of the Federation & 2 Ors., the actions of the 1st, 2nd, 3rd, 4th, 5th & 6th Defendants complained of amount to gross violation of the said judgment.
  3. An order directing and/or compelling the 4th & 6th Defendants to henceforth lay the estimates of their expenditure and that of the Judiciary in Delta State directly before the 2nd Defendant for

appropriation without further recourse to the 1st Defendant or any of its officials, servants and agencies.

  1. An order directing and/or compelling the 2nd Defendant to henceforth receive from the 3rd, 4th and 6th Defendants the estimates of their expenditure and that of the Judiciary in Delta State, and consider same for appropriation purposes.
  2. An order of perpetual injunction restraining the 3rd & 6th Defendants from further submitting, laying, presenting the budget and/or expenditure of their estimate and that of the Judiciary in Delta State to the 1st defendant, its subordinates and/or any of its agents, (agencies), departments, officials and servants and/or any other Executive authority for the purpose of budgeting or appropriation or any purpose however.

An order of perpetual injunction restraining the 1″ Defendant from further demanding, presenting and/or laying the expenditure of the estimates of the 3rd, 4th & 6th Defendants and[/or] the Judiciary in Delta State before the 2nd Defendant for appropriation or any purpose however.

  1. An order compelling the Accountant-General of Delta State (5th Defendant) to pay to the 3rd and 6th Defendants, directly, unconditionally and without further Executive approving protocol or resort to the 1st Defendant, its subordinates, officers and servants; all such monies appropriated by the 2nd Defendant and standing to the credit of the 3rd, 4th & 6th Defendants and the Judiciary in Delta State in the Consolidated Revenue Fund of Delta State and not later than the 30th day of December, 2022 (sic) or upon the budgets estimates being passed by the 2nd Defendant.
  2. An Order restraining the 1st, 2nd, 3rd, 4th, 5th & 6th Defendants, their subordinates and/or any of their agents (agencies), departments, officials and servants from doing anything further that will amount to a breach of the clear provisions of Sections 120(4), 121(2), 121(3) & 124(4) of the Constitution of the Federal Republic of Nigeria, 1999 as amended or in flagrant disregard of the judgment of the Federal High Court in FHC/ABJ/CS/63/2013: OLISA AGBAKOBA V. THE ATTORNEY GENERAL OF THE FEDERATION & 2 ORS.

In its judgement, the trial judge, Honourable Justice G.B. Brili Okolosi held that it is important to restate that the 1999 Constitution establisheId separation of powers among the three arms of Government, that is, the Executive, Legislature and the Judiciary. By so doing, each arm is independent of the other. To this end, is the judicial arm a ministry, agency or parastatal under the control of the Executive? If one is prepared to answer this question in the affirmative, why has the Constitution of the Federal Republic of Nigeria 1999 created, recognised and established the three arms of Government? Sections 5 (1) (a) and (b) Part II of the Constitution of the Federal Republic of Nigeria 1999 deal with the establishment of the Executive. Sections 4 (1) (2) (3) and (4) in Part II of the Constitution of the Federal Republic of Nigeria 1999 deal with the establishment of the Legislature. Sections 6 (1), (2), (3), (4), (5) and 6 also in Part II of the Constitution of the Federal Republic of Nigeria 1999 deal with the establishment of the Judiciary, otherwise called the Judicature. I am unable to find any provision in the whole of the Constitution of the Federal Republic of Nigeria 1999 that brings the Judiciary under the control of the Executive in whatever guise. Checks and balances could exist. But that does not in any way translate to control. That being the case, it will be mischievous to contend that just because the practice of the judiciary submitting it’s Budgetary Estimates to the Executive arm on each financial year has been there for a long time, then the same practice should be endorsed even where such practice is in conflict with the clear provisions of the Constitution. A practice or custom, however old or entrenched can be set aside by the

 

 

Court once it is shown that such practice is against the spirit and letters of the Constitution

The judgement read in part, “The presidential system of Government brought by the of the Constitution of the Federal Republic of Nigeria 1999, no doubt, recognises cooperation and partnership among the three arms of Government for peace, order and good governance in the Country. But that does not mean that any arm should be dependent or subservient to the other, as is the practice with regard to the funding of the judicial arm of Government.

Another point worthy of mentioning is, if the National Assembly does not submit it’s Budget Estimates to the Executive arm, why should the judiciary be made to do so? As the Executive arm is required by the Constitution of the Federal Republic of Nigeria 1999 to submit it’s Budget Estimates to the National Assembly for deliberations, so is the judicial arm accorded the same right and independence to do so under Sections 81 and 84 of the same Constitution. Any interpretation outside this arrangement would mean acting contrary to the intendment of the framers. [……]

It is therefore beyond adventure to state that as the Constitution did not recognise the practice of the judiciary submitting it’s annual Budgetary estimates to the Executive arm, and the provisions of the Constitution are sacrosanct, then the Court has the inherent power to arrest the apparent drift characterised by the clear and unconstitutional practice. entrenched over the years. It is my belief that by declaring as unconstitutional the age long practice of requiring the judicial arm to submit its Budgetary Estimates to the Executive for consideration and inclusion in the Executive Appropriation Bill, this Court will be assisting the Executive arm to adhere to the provisions of the Constitution.

In the same vein, I say with every force at my disposal that the current practice whereby the Judiciary in Delta State, that is the 3rd, 4th and 6th Defendants are required to submit their Annual Budgetary Estimates to the Executive arm for scrutiny before inclusion in the Appropriate Bill, is an aberration and therefore unconstitutional. This Court has inherent power under the Constitution, considering that the provisions of the Constitution are sacrosanct, to arrest the apparent drift characterised by the clear and unconstitutional practice entrenched over the years, and particularly, since 1999. I am of the firm view that by declaring unconstitutional this age long practice in Delta State of requiring the judicial arm to submit its Budgetary Estimates to the Executive arm for consideration and inclusion in the Executive Appropriation Bill, this Court will be assisting the Executive arm to adhere to the provisions of the Constitution, as advocated in this judgment.”

It is expected that the judgement which is epochal and landmark will usher an era of greater judicial independence and autonomy in Delta state’s judiciary which will improve the dispensation of justice in the state.

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