Constitutionality of Disbursement of Funds for the Judiciary by the Executive
TFacts
he Government of Kogi State had proposed and adopted a parade/table payment exercise across the State, which was to proceed simultaneously with a Biometric Data Capture and Enrolment of Public Servants. The Judiciary refused to participate in the exercise, on ground that the exercise negates the principle of separation of powers. The Claimant subsequently, commenced this action against the Defendants by Originating Summons, seeking the determination of various questions, and seeking the following reliefs, among others: 1. A Declaration that, pursuant to Section 121(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and Section 5 of the Kogi State Public Finance (Judiciary Special Provisions) Law No. 6 of 1991, the 1st to 5th Defendant lack the power to withhold the salaries and emoluments of the 6th to 9th Defendant (who are members of the Claimant), by refusal to release the amount standing to the credit of the Kogi State Judiciary in the
Consolidated Revenue Fund of the State, payable directly to the heads of the courts concerned.
2. A Declaration that, the continuous refusal of the 1st to 5th Defendant to pay the monthly salaries and emoluments of the Kogi State Judiciary from July, 2018 to February, 2019, which subventions total is N1,529,885,261.92 being aggregate of the sum of N191,235,607.74 per month to each head of court at the rate of N135,821,049.83; N26,310,922.39; N23,781,827.83; and N5,321,807.69, is unconstitutional.
3. A Declaration that, the continued refusal of the 1st to 5th Defendant to pay the said monthly salaries and emoluments of the 6th to 9th Defendant, has severely crippled the operations of the Judiciary in Kogi State, and severely jeopardised their means of livelihood.
Issues for Determination
Seven issues were posed by the Claimant, for determination of the court thus:
1. Whether the Claimant, an umbrella body for judicial staff in Nigeria, and in Kogi State, is entitled as of right, to be paid the monthly salaries and emoluments from the amount standing to the credit of the Kogi State Judiciary in the Consolidated Revenue Fund of the State, as at when due.
2. Whether the 1st to the 5th Defendant, have the power to withhold the payment of monthly salaries and emoluments of the members of the Claimant.
3. Whether the 1st to 5th Defendant have the powers under Sections 120(2) and 121(3) of the 1999 Constitution, to subject the 6th to 9th Defendant to the Executive Arm’s screening or data capturing or any other device including table payment, without respect to the doctrine of separation of powers and financial autonomy of the Judiciary, as contained in the Kogi State Public Finance (Judiciary Special Provisions) Law No. 6 of 1991.
4. If the answer to question 2 above is in the negative, whether the continued refusal by the 1st to 5th Defendant, to pay the salaries and emoluments of the members of the Claimant by withholding the release of funds to the 6th to 9th Defendant, which subvention is in the sum of N1,529,885,261.92, at the sum of N191,235,607.74 per month, is not a gross violation of their fundamental right guaranteed under Section 34(1) of the Constitution.
5. Whether the 1st to 5th Defendant have the constitutional powers to interfere in the direct payment of salary of judicial workers, when by Sections 125(2)(6) of the 1999 Constitution and 121(3) thereof, such funds can be audited by the AuditorGeneral of the State, only which reports are sent to the State House of Assembly.
6. Whether the 6th to 9th Defendant have received any amount standing to their credit in the Consolidated Revenue Fund of the State or Subvention as Heads of Courts and Commission with effect from 1st July 2018 to date, as provided under Section 121(3) of the 1999 Constitution, so as to pay the salaries and emoluments of members of the Claimant.
7. Whether the 1st to 5th Defendant can embark on table payments, data capturing or any other act capable of affecting or relating to the employment of judicial staff, without reference and approval of the 9th Defendant.
Arguments
In his submission on Issues 1 to 5, Counsel for the Claimant argued that, the principle of separation of powers as constitutionally provided for under Section 197 of the 1999 Constitution, remains that the three arms of government shall operate independently with checks and balances. The staff of Kogi State Judiciary are appointed or deemed to be appointed by the 9th Defendant, who controls their employment; thus, the 1st to 5th Defendant are excluded from dealing with any staff matters of the Judiciary, including appointment, control and dismissal –
REGD. TRUSTEES OF C & S v IJADOLA (2007) 4 FWLR (Pt. 389) 5921 at 5953.
Counsel posited that, by way of checks and balances in the release of funds and for purposes of accountability, the Auditor-General of the State, by virtue of Section 125(2)(6) of the 1999 Constitution, is the only competent body appointed by the organic law, to audit the accounts of the courts. He submitted that, where the Constitution has given direction on how a thing should be done, only that way should be followed –
EHUWA v OSIEC & 3 ORS (2006) 11-12 SC 102 at 109.
The Defendants on their part, despite being served with the court processes, decided not to file any response thereto.
Court’s Judgement and Rationale
Deciding Issues 1-3, 5 and 7 together, the learned Judge considered the provisions of the relevant laws, especially Sections 120(1) and 121(3) which provide that, any amount standing to the credit of the Judiciary in the Consolidated Revenue Fund of the State shall be paid directly to the heads of the courts concerned. The duty of courts is to interpret the words contained in the Statute, and not to go outside the words in search of an interpretation which is convenient to the court, or to the parties. Thus, where the provisions of a Statute is clear and unambiguous, as in this case, the court in the exercise of its interpretative jurisdiction, must adopt the literal rule and not re-write a Statute –
Section 197(1) of the 1999 Constitution provides for the establishment of the State Judicial Service Commission, while Section 158(1) specifically provides that the powers of the National Judicial Council (NJC) shall not be subject to the direction or control of another authority or person. By adopting the word “shall”, it presupposes that the independence of the NJC, is imperatively guaranteed. Section 81(3) of the Constitution further provides that, any amount standing to the credit of the Judiciary in the Federation Account, shall be paid directly to the NJC, for disbursement to the heads of the courts established for the Federation and the States, under Section 6 of this Constitution.
Now, the doctrine of separation of powers presupposes that each of the three organs of government is in the hands of different persons, and that one organ does not have control over the other, or perform the function of another. Encroachment on the function of another organ, is consequentially unconstitutional.
v NATIONAL JUDICIAL COUNCIL
CS/667/13 JUSUN
the court described the disbursement of funds for the Judiciary by the Executive, as unconstitutional and a threat to the independence of the Judiciary. The Executive is charged with transferring funds from the Consolidated Revenue Fund to the NJC under Section 120, 121(2) and (3), while the NJC is empowered to collect, control and disburse these funds for the Judiciary in matters of policy and administration, for transmission to the heads of courts. The Auditor-General of the State (5th Defendant), is charged with auditing accounts of the State. It follows that, the Nigerian Judiciary is constitutionally guaranteed to be financially independent from the Executive arm of government. The issues were thus, resolved in favour of the Claimant.
Deciding Issue 4, the court had recourse to the provisions of Section 34(1) of the Constitution, which guarantees the right to respect and dignity of every individual. In
& 73 ORS.,
In Suit No. FHC/ABJ/
OVERLAND AIRWAYS LIMITED v AFOLAYAN (2015) 52 NLLR (Pt. 174) 214 NIC at 224,
it was held that, the courts view the employer’s obligation in respect of payment of wages, as a key element of the employment contract ... and the fact that the employer may have good reasons for failing to make payment in accordance with the terms of the contract, is irrelevant. The court concluded that,
With regard to Issue 6, His Lordship held that, Section 254(1) confers exclusive jurisdiction on the National Industrial Court of Nigeria (NICN) to, among others, determine civil causes and matters relating to, or connected with disputes arising from payment or non-payment of salaries of judicial officers or any civil or public servant in any part of the Federation, and matters incidental thereto.
The Labour Law has determined in its Section 1(2) of Labour Act, 2014, that except where otherwise expressly permitted by the Act, wages payable in money shall be paid only in legal tender or with prior consent in writing of the worker concerned, by Cheque or Postal Order, and payment in any other form shall be illegal, null and void. It suffices to agree that, table payment (purportedly proposed by the 1st to 5th Defendant), or any of such other method of payment not expressly mentioned in the law, or for which the prior consent of the worker has not been obtained, is illegal, and the court of law cannot sanction an illegality, in furtherance of its mandate to prevent unfair labour practices.
were also resolved in favour of the Claimant. Claim Succeeds; Reliefs granted.
Representation ARAKA v EGBUE (2003) MJSC 17.
Chief U.M. Enwere with C.M. Enwere and A.C. Ibor for the Claimant.
Umar Abdu Led for the 1st to 5th Defendant. These issues Peter O. Abang with H.O. Umar (Mrs) for the 6th to 9th Defendant.
Reported by Optimum Publishers Limited