A.g. Abia State & Ors V. A.g. Of The Federation (2022)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C.

By their Originating Summons filed on the 17th September 2020, the plaintiffs seek answers from this Court to the following questions:-

1. Having regards to the clear and unambiguous provisions of Section 6 and 81(3) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) (“CFRN”), read together with item 21(e) of the Third Schedule thereof, whether the defendant is not constitutionally obligated and/or charged with the responsibility for funding all capital and recurrent expenditure of the High Courts, States Sharia Courts of Appeal and Customary Court of Appeal of the Federation of Nigeria, being Courts created under Section 6 of the CFRN.

​2. 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, States Sharia Courts of Appeal and Customary Court of Appeal in violation of the constitutional provisions vesting responsibility for funding the said Courts on the Federal Government is not unconstitutional and unlawful.

They urge the Court, on answering the questions, to grant them declaratory and injunctive reliefs as follows:-

1. A DECLARATION that by virtue of the clear and unambiguous provisions of Sections 6 and 81(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended) (CFRN) THE Defendant’s is constitutionally obligated and/or charged with the responsibility for funding of all capital and recurrent expenditure for the High Courts, Sharia Courts of Appeal and Customary Court of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN.
2. A DECLARATION that by virtue of the clear, lucid and unambiguous provisions item 21(e) of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (As amended) (CFRN) THE Defendant is constitutionally obligated and/or charged with the responsibility for funding 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 CFRN.

3. A DECLARATION that the refusal, failure and neglect of the Defendant to fund the 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 CFRN is unconstitutional.
4. A DECLARATION that the 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’s High Courts, States Sharia Courts of Appeal and Customary Courts of Appeal in violation of the constitutional provisions vesting responsibility in respect of same on the Federal Government is unconstitutional.
5. AN ORDER compelling the defendant to henceforth fund 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 CFRN.
6. AN ORDER compelling the Defendant to refund to the plaintiffs all sums expended by the plaintiffs in funding the capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the respective Plaintiffs’ States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN which said funds ought to have been expended by the Defendant.
7. AN ORDER compelling the Defendant to refund and pay over to each plaintiff the amount set out against the name of each plaintiff in Exhibit “A” exhibited in the affidavit in support of this originating Summons, being the true and actual amount expended by each plaintiff for the funding of the capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the respective plaintiff States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN, for the period 5th May, 2009 to 31st January, 2020.
8. AN ORDER compelling the Defendant to refund and pay over to each plaintiff State all amounts expended by each plaintiff for funding the capital 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 CFRN, from 31st January 2020 until the date of delivery of judgment by the Supreme Court of Nigeria.
9. AN ORDER setting aside the Presidential Executive Order No 00-10 of 2020 made by the President of the Federal Republic of Nigeria on 22nd May, 2020 on the ground that same is in violation of the express provisions of the CFRN and therefore, unconstitutional.

A sixty three paragraph affidavit, eleven paragraph further affidavit and a second further affidavit support plaintiffs’ Originating Summons. Annexed to the second further affidavit is the list of the capital expenditure incurred by some of the plaintiffs’ States for their Courts listed in Section 6(5) of the 1999 Constitution (as amended). The Plaintiffs also filed their written brief on 27th November in relation to their Originating Summons.

The defendant entered conditional appearance and filed their counter-affidavits and a written address in opposition to the Originating Summons. He also filed a notice of preliminary objection to the competence of plaintiffs’ suit.

Parties have exchanged written addresses in respect of the preliminary objection as well.

Five amici curiae, Dr. Olisa Agbakoba, Asiwaju Adegboyega Awomolo, S. T. Hon, Mahmud Abubakar Magaji and Musbau Adetunbi, at the invitation of the Hon. the Chief Justice of Nigeria, given the topical nature of the issues canvassed by the suit at hand, have also obliged the Court their respective briefs.

DEFENDANT’S PRELIMINARY OBJECTION

Defendant’s preliminary objection to the competence of plaintiffs’ suit, being a jurisdictional issue, must be addressed first. Otherwise, no matter the degree of thoroughness put into the determination of the suit, once that is done without the necessary authority, the effort will come to naught. See Madukolu V. Nkemdilim (1962) 2 SCNLR Customary Court of Appeal, Edo State V. Aguele & Ors (2017) LPELR-44632 (SC) and AG. Federation V. AG. Anambra State (2017) LPELR-43191.

The Defendant asserts that plaintiffs’ claim is a bid to relitigate issues earlier heard and determined by the Federal High Court sitting in Abuja in suit No. FHC/ABJ/CS/667/2013: JUDICIAL STAFF UNION OF NIGERIA V. NATIONAL JUDICIAL COUNCIL AND 73 ORS. It is argued that the plaintiffs herein were represented by their governors and judgment delivered on the issues determined in the previous suit at the Federal High Court. The judgment, the defendant contends, subsists and binds the plaintiffs. The valid subsisting judgment of the Federal High Court, it is submitted, disentitles the plaintiffs from further invoking this Court’s jurisdiction on a matter that was so validly decided earlier.

The plaintiffs contend otherwise. They insist that neither the parties nor the issues determined previously in suit No. FHC/ABJ/CS/667/13 are same or similar as those in the instant suit. Dr. Olisa Agbakoba SAN, more pointedly, submits that whereas the JUSUN suit No. FHC/ABJ/CS/667/13 the learned counsel for the defendant asserts bars this Court from entertaining the instant suit is about “how” the Judiciary receives its fund, the plaintiffs case on the other hand, is about “who” funds the Judiciary.

​It is settled, I agree, that res Judicata only operates to bar subsequent proceedings between the same parties or their privies in respect of the very or related matter previously heard and determined by a Court of competent jurisdiction. In deciding whether or not the plea avails the defendant, the subsequent Court must examine the facts in issue and the parties before the earlier Court. The rule of res Judicata is derived from the maxim nemo debet bis vexari proeadem causa. It is the cause in the suit that matters. Section 46(1) of the Evidence Act 2011 dwells on the point thus;-

Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is admissible for the purpose of proving in a subsequent judicial proceeding or in a later stage of the same judicial proceeding the truth of the facts which it states, when the witness cannot be called for any of the reasons specified in Section 39, or is kept out the way by the adverse party.