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By Dennis N. Ezika Esq
INTRODUCTION
- President Muhammadu Buhari on Friday May 22, 2020 promulgated
Presidential Executive Order No. 10 of 2020 (“EO”)
for the Implementation of Financial Autonomy for the State
Legislature and State Judiciary as guaranteed under section 121(3)
of the Constitution of the Federal Republic of Nigeria, 1999 (as
Amended) (“the CFRN”). - Constitution of the Federal Republic of Nigeria 1999 (fourth
alteration No. 4) act, 2017 created a new subsection 3:
Any amount standing to the credit of the
- House of Assembly of the State and
- the judiciary
In the Consolidated Revenue Fund of the State shall be
paid directly to the said bodies respectively; in the case of
judiciary, such amount shall be paid directly to the heads of the
courts concerned.
- FAR REACHING PROVISIONS OF THE EO
- First Line Charge: Allocation of appropriated
funds to the State Legislature and State Judiciary in the State
appropriation laws in the annual budget of the State, shall be a
charge upon the Consolidated Revenue Fund of the State, as a First
Line Charge. - Deduction and/seizure from the Federation Account funds
due to the defaulting State Governments: The
Accountant-General of the Federation, shall by this EO and any
other regulations or Guidelines as may be issued by the
Attorney-General of the Federation and Minister of Justice,
authorise the deduction from source in the course
of Federation Accounts Allocation from the money allocated to any
State of the Federation that fails to release allocation
meant for the State Legislature and State Judiciary in line with
the financial autonomy guaranteed by Section 121(3) of the
CFRN - Determination of the Budget: Every State
Government to set up a Committee to determine and ascertain from
the Revenue profile of the State, a workable budget for each Arm of
the State Government based on the request and needs of the
Accounting Officers. The membership of the Committee shall comprise
the Commissioner of Finance, Accountant-General of the State,
representative of the State Budget Office, Chief Registrars of the
various courts, the Clerk to the State House of Assembly and the
Secretary of the State Judicial Service Commission. - Creation of State Judiciary Budget Committee:
Each State Judiciary shall set up a State Judiciary Budget
Committee to serve as an administrative body to prepare, administer
and implement the budget of the State Judiciary with such
modifications as may be required to meet the needs of the State
Judiciary. The Committee shall be headed by the Chief Judge and the
Chief Registrar as the Secretary. - Release of funds to the State Judiciary: On
appropriation of Funds, the State Judiciary Budget Committee shall
on a monthly basis or as the case may be, request the Budget Office
of the State to release the statutory allocation either quarterly
or monthly and the Authority to Incur Expenditure (AIE) shall be
raised by the Office of the Accountant-General of the State for the
release of the Fund to all the Heads of Courts/Judicial Bodies in
line with the Appropriation Law. - Budget Templates: The budget templates and
models in the schedule to this Executive Order shall apply to State
Legislature and State Judiciary with modifications, in compliance
with Section 121(3) of the CFRN and such other applicable
Laws. - Appropriation Law: All States of the
Federation shall include the allocations of the two Arms of
Government (legislative and judicial arms) in their Appropriation
Laws. Existing Appropriation law of any State in default of the
Financial Autonomy requirements should be amended. - Special Allocation for the Judiciary: In the
first three years of implementation of this EO, there shall be
special extraordinary capital allocations for the Judiciary to
undertake capital development of State Judiciary Complexes, High
Court Complexes, Sharia Court of Appeal, Customary Court of Appeal
and Court Complexes of other Courts befitting the status of a
Courts. - CONTENTIOUS PROVISIONS OF THE EO
- The EO purports to entrench constitutional provisions of
financial autonomy to the State Legislative and State Judicial arms
of government donated under section 121(3) of the CFRN and to
enhance principles of separation of power among the three arms of
government. However, the fact remains that the President cannot in
exercise of its executive powers either under the constitution or
under any statute act in breach of any clear provisions of the
CFRN. His actions must at all times be within the ambit of the
constitutional provisions. - In AG LAGOS STATE V. AG FEDERATION[1], one of the major issues before the Supreme
Court was Whether the President was right to direct the Minister of
Finance not to release allocations from the Federation Account due
to Local Governments in Lagos State and payable to Lagos State
Government, due to an alleged breach of constitution by Lagos State
Government in creating additional 57 Local Government Areas not
recognised by the CFRN. The Supreme Court in resolving this issue
and declaring the action of the President unconstitutional held
that “the President, in whom the executive powers of the
Federation is vested, is bound to protect and defend the
Constitution but the constitution does not and could not have
intended that the President in fulfilling his constitutional
obligation in protecting and defending the constitution should
commit illegality.” - The Supreme Court per Akintan (JSC) in AG LAGOS STATE
V. AG FEDERATION (supra) further emphasized as follows:
“Nigeria is a federation and operates a federal
constitution. An important attribute of a federal constitution is
that there is a division of power between the centre or the Federal
Government, and the States. The powers and roles given to each of
the governments are as defined and set out in the Constitution.
None of the governments is allowed to step out of its assigned
field. If it does, whatever it does outside its assigned field will
be unconstitutional and will be declared null void by the
court”. - Expenditures of the Legislative and Judicial
arm on a “First Line Charge” on the Consolidated Revenue of the
State. - The President in issuing the EO designated the appropriated
expenditures of the State Legislative and Judicial Arms of
government as a “First Line charge” on the Consolidated Revenue
Fund of the State. - A “charge” in the above context means an
encumbrance, lien or claim[2]. A first line
charge therefore warrants that before any expenditure could be made
from the Consolidated Revenue Fund of the State, funds would first
be disbursed to cover the expenditures on the first line charge
before other disbursements could be made. - It is worthy to mention and clarify that the remuneration,
salaries and allowances of judicial officers of a State are not
expenditures charged upon the Consolidated Revenue Fund of the
State under the CFRN. In other words, such expenditures are not
included in the first line charge or designated as a “charge”
whatsoever in the Consolidated Revenue Fund of the State[3]. - The remuneration, salaries and allowances payable to the Chief
Judge and Judges of the Superior Courts of a State listed in the
constitution constitute a Charge on the Consolidated
Revenue Fund of the Federation[4]. - Capital expenditures as well as recurrent expenditures of the
judicial arm of the State fall under the Appropriation Bill of the
State. These include the remuneration, salaries and allowances
payable to Magistrates, Customary Court Judges, judicial workers
and also include capital expenditure such as official residential
Houses, Court premises, cars, etc. As earlier mentioned, the
remuneration, salaries and allowances payable to judges are charged
to the Consolidated Revenue Fund of the Federation. - The big questions here are (a) whether the framers of the
constitution intended that the expenditures (both recurrent and
capital expenditures) of the Legislative and Judicial arms of
government in a State should be on a first line charge on the
Consolidated Revenue of the State and (b) whether the President can
use executive fiat such as the EO to amend clear provisions of the
constitution. The answers are in the
negative! - Section 121 (3) of the CFRN provides that
“Any amount standing to the credit of the (a) House of
Assembly of the State and (b) Judiciary in the Consolidated Revenue
Fund of the State shall be paid directly to the said bodies
respectively; in the case of Judiciary, such amount shall be paid
directly to the heads of the courts concerned.’’ - The purport of these constitutional provisions under section
121(3) of the CFRN is that upon the passage of the appropriation
bill, the sum due to the State Legislature and the State Judiciary
shall be paid directly to the Head of that arm; subject to the
availability of the Funds in the Consolidated Revenue Fund of the
State and subject to other competing expenditures of the State as
contained in the Appropriation Law. - Unlike sections 84 (2) & (7) of the CFRN which designated the
recurrent expenditure of judicial officers of the Federation (in
addition to their salaries and allowances) as a charge on the
Consolidated Revenue Fund of the Federation, the corresponding
provisions under section 121(3) and 124 of the CFRN clearly omitted
to put either the salaries, allowances or any of the expenditures
(whether recurrent or capital) of either the judicial or
legislative arm of government as a charge on the Consolidated
Revenue Fund of the State. On the contrary, the drafters of the
constitution intended that only the remuneration, salaries and
allowances payable to the holder of offices in section 124 (4) of
the CFRN, which excludes the expenditure of either the judicial or
legislative arms of government, shall be a charge on the
Consolidated Revenue Fund of the State. - It suffices to state that if there is a lacuna in the
constitution or if same requires modifications, it behoves on the
legislature to do same and not for the executive arm to usurp the
legislative function and amend the constitution via executive fiat.
The principles of separation of powers entail that between the
executive, the legislature and the judiciary, neither arm should
invade the province of the other and neither may control, direct or
restrain the action of the other[5]. - In UGBA & ANOR V. SUSWAM & ORS[6] the Supreme Court Per Rhodes
Vivour held as follows: “…. the Constitution sets up a
Federal system by dividing powers between the Federal and State
Governments. It establishes a National Government divided into
three independent branches. The Executive branch enforces the law.
The legislative branch makes the laws, while the judiciary
explains the law. There is no document superior to the Constitution
in Democratic Governance. It is the heart and soul of the
people…” - In OBI V. INEC & ORS[7] the
Supreme Court per Aderemi JSC held as follows “I hold
the strong view that law making in the strict sense of that term is
(the function of) the legislature. Let there be no incursion by one
arm of the government into that of the other. That will be an
invidious trespass. Let me point out that no Constitution fashioned
out by the people, through their elected representatives for
themselves, is ever perfect in the sense that it provides a
clear-cut and/or permanent or everlasting solution to all societal
problems that may rear their heads from time to time. As society
grows or develops, so also must its Constitution, written or
unwritten. More often than not, the law, as passed by the
legislators, may have produced a result or results which do not
accord with the wishes of the people or do not meet the
requirements of today. Let that defective law be put right by new
legislation”. - In the circumstances, the prescription in the EO placing the
expenditures of the State Legislative and Judicial arms of
government as First Line Charge on the
Consolidated Revenue Fund of the State ultra vires the powers of
the President, is an usurpation of legislative function of the
National Assembly and inconsistent with the provisions of the
Constitution. - Deduction and/seizure from the Federation
Account funds due to the defaulting State Governments - The EO mandates the Accountant-General of the Federation to
deduction at source from the Federation Account, allocations due to
a State that defaults in releasing funds meant for the State
Legislature and State Judiciary in line with the financial autonomy
guaranteed by Section 121(3) of the CFRN. - If the State Governments indulge in alleged continuous breach
of an extant provision of the constitution, including s. 121(3),
the Federal Government is not empowered by any law to act
arbitrarily by withholding/deducting from allocation due to a State
from the Federation Account. - The Supreme Court being the apex court in Nigeria and vested
with the judicial powers of interpreting the law had said that
failure of the State to allocate public funds as prescribed by the
CFRN would constitute a breach of the relevant provisions of the
Constitution and any such breach would be actionable in a court of
law and cannot be enforced by executive sanction[8]. - There is no constitutional power conferred on the President
either under section 162 of the CFRN or under any provision of the
Constitution to the withhold allocation due to another tier of
government from the Federation Account on the basis of a conceived
breach of the Constitution[9]. - The provision of the EO authorising the Accountant General of
the Federation to deduct from the Federation Account allocation due
to a State who failed to comply with the EO is an arbitrary
exercise of Presidential powers, a resort to self-help and utter
disregard to rule of law and principles of separation of powers
enshrined in the CFRN. - The only instance where the President is authorised by the CFRN
to deduct from an amount due to a State Government by way of setoff
is in respect of a loan made by the Federation to that State[10]. - Payment due to a State Government from the Federation Account
is a charge upon the Consolidated Revenue of the Federation and
should be released to that State without deduction except as a
setoff to offset a loan amount due[11]. - Creation of additional obligations or duties
on State Officials: - The doctrine of separation of powers is one of the core
principles of a modern democracy and the rule of law. Its
principles in a federal system of government entail that the
Federal Government cannot dictate to the State Government how to
carry out its state functions. The Federal Government cannot also
impose on the States any additional duty/function aside from those
prescribed by the constitution. - The Supreme Court had pronounced that neither the National
Assembly nor the President has the Constitutional power to impose
any new duty on the Governor of the State save for what was
provided under the constitution; that such an imposition would
normally meet with resentment and refusal to perform for the
enforcement of which there is no Constitutional sanction[12]. - In AG OGUN STATE VS. AG FEDERATION,[13] Ogun, Bendel and Borno States sought against
the Federal Government a declaration that the Constitution of the
Federal Republic of Nigeria (Adaptation of Public Order Act) Order,
1981, made by the President via executive order (S.I. No. 5 of
1981) which modified some of the provisions of the Public Order
Act, 1979, was unconstitutional, null and void and of no effect.
The Supreme Court upheld the constitutionality and validity of the
Adaptation Order save for the modification made to Section
4(3) of the said Public Order Act which the court declared
unconstitutional, null and void.[14]
The Supreme Court in declaring the same void held that:
“neither the President of the Federal Republic of Nigeria
nor the National Assembly can unilaterally confer powers on a State
functionary such as the Governor or the Attorney-General of a State
and thus bring him within the investigatory or
scrutinising powers conferred upon the National
Assembly” - One of the striking principles laid down by the apex court
AG OGUN STATE VS. AG FEDERATION (supra) was the
President cannot in exercise of his constitutional powers violate
express provisions of the said constitution. The Supreme Court in
that case held per Fatai-Williams (JSC) as follows: “To
construe the provisions of Section 195 subsection 4 of the
Constitution as giving the Governor of a State the power of
concurrence as the President has done in the Adaptation Order is,
in my view, to do violence to the express provisions of that
section. Consequently, by giving the Governor the power, the
President, perhaps inadvertently, has committed an infraction of
the provision of the said section….. I accordingly hold that this
particular modification is unconstitutional and is therefore null
and void and of no effect”.
- It is clear from the provisions of the EO that the President
ascribed new duties/obligations on State officials contrary to the
provisions of the CFRN and the judgment of the apex court in
AG OGUN STATE VS. AG FEDERATION (supra). These new
obligations/duties on the State include composition and membership
of State Judiciary Budget Committee, composition and membership of
State Budget Committee, adoption of a budget template and
instructing the States to set out special extraordinary capital
allocations for the Judiciary. - Notwithstanding the good intentions of the President in signing
the EO and the remedy which the EO seeks to provide, the President
cannot by executive fiat dictate to the States how to run their
affairs and how public funds should be allocated and doing same
ultra vires the powers of the President under the CFRN. - In AG LAGOS STATE V. AG FEDERATION[15]
the Supreme Court held as follows:
“Nigeria operates a federal system of
government. Section 2(2) of the 1999 Constitution re-enacts the
doctrine of federalism. This ensures the autonomy of each
government. None of the governments is subordinate to the other.
This is particularly of relevance between the State Governments and
the Federal Government, each being, as said by Nwabueze in his
book, The Presidential Constitution of Nigeria, pages 39-42 , an
autonomous entity in the sense of being able to exercise its own
will in the conduct of its affairs within the Constitution, free
from direction by another government”.
- STATUTORY BACKING OF THE EO
- Without going into the history of Executive Orders, it must be
mentioned that Executive Orders have the force of law when signed
by the executive and gazetted. By Section 5(1) of the CFRN the
Executive Powers of the Federation is vested in the President and
extend to the execution and maintenance of the CFRN, all laws made
by the National Assembly and to all matters with respect to which
the National Assembly has power to make laws. S. 5(2) of the CFRN
also vests the Executive Powers of the State in the Governor. The
Courts have also taken judicial notice of executive orders as
having the force of law unless challenged and set aside by the
court[16]. - In ELEPHANT GROUP PLC V. NATIONAL SECURITY ADVISER &
ANOR[17] the court in upholding
the validity of executive order held as follows: “In Law,
an Executive Order is an order or regulation issued by the
President or some administrative authority under his direction for
the purpose of interpreting, implementing, or giving administrative
effect to a provision of the constitution or of some or treaty. It
is indeed an effective instrument or tool for good governance and
administration by the Government” - Executive Orders having been judicially noticed by the courts
have become part of our law. However, the court in its adjudicatory
function may declare any or all the provisions of an executive
order invalid, null and void if same ultra vires the power of the
executive. - However, there had been instances where the court declared an
executive order valid notwithstanding that the Executive Order made
material amendments/modifications an existing law[18]. There had also been instances where the court
declared executive order; particularly provisions that alter/amend
clear provisions of the constitution, invalid and
unconstitutional[19]. - In AG ABIA STATE V. AG FEDERATION[20], the States through their respective
Attorneys General challenged Statutory Instrument of No. 9 of 2002
(executive order) made by the then President Olusegun Obasanjo
which modified an existing law; Allocation of Revenue (Federation
Account Etc) Act of 1990 as amended by Decree 106 of 1992 in order
to bring same in conformity with the CFRN pursuant to section 315
of the CFRN. The then President in modifying the existing law
allegedly increased the allocation due to Federal Government in the
Federation Account by 7.5% and same was challenged by the States as
unconstitutional. The Supreme Court in dismissing the suit held,
among other things, as follows: “…. It is true that
separation of powers is essential to a healthy democracy, the power
given the President and also to State Governors in existing law of
the State by the Constitution is not an abuse of the principle or
doctrine of separation of powers, it is essential to giving meaning
to an existing law so that the Constitution itself is not abused. I
therefore hold that the exercise of the power to modify the
allocation formula in the existing Allocation of Revenue
(Federation Account Etc.) Act (Cap. 16, Laws of the Federation of
Nigeria, 1990) as amended by Allocation of Revenue (Federation
Account Etc) (Amendment) Decree (No. 106 of 1992) is constitutional
and within the scope of his right under the
Constitution”. - It is customary that as soon as an executive order is
signed/and gazetted, it becomes operational and effective. It is
only the court of competent jurisdiction that can declare an
executive order or any part thereof null and void. - In the circumstances and in view of the contentious provisions
of the EO discussed above which touch on the very fabric of
separation of power and rule of law enshrined in our constitution,
it will be interesting to see how same will be resolved by the
Supreme Court, if the matter is competently presented before
it. - THE MISCHIEF IN S. 121 (3) OF THE CFRN AND THE REMEDY
WHICH THE EO INTENDED TO PROVIDE - It should be noted that the EO was promulgated to fill a
“lacuna” that exist under section 121(3) of the CFRN. - The intendment of the law under section 121(3) of the
Constitution was that the funds due to the legislative and judicial
arms of the state should be paid directly to the heads of those arm
as soon as the funds are available to meet the said
expenditures. - The Governors, being the heads of the executive arm of their
respective States decide how the funds are released to meet the
different expenditures contained in the budget and most times
underfund the legislative arm and the judicial arm not withstanding
the sum appropriated for each arm of government in the budget. The
executive undoubtedly has wide discretion in implementing/executing
the law, including the Appropriation Law. - The revenues in Appropriation Law are estimates and accrue to
the Consolidated Revenue Fund of the State in piecemeal either
monthly, quarterly or otherwise. The Executive decides the priority
to be accorded to each heads of expenditure in contained in the
Appropriation Law and how funds are released to meet such
expenditures. - The legislative and judicial arms of the State to this end
live/survive at the mercy of the executive arm with regards to
funding and meeting budgeted expenditures. A State Governor thus
exercises his discretion in determining, albeit unintended, the
quantum of funds to be released to the other arms of government and
when the funds will be released to the relevant arm of government.
By so doing, the Governor exerts considerable influence over the
operations and more particularly the decisions/actions of the other
arms of government and in contrast to the principles of separation
of power enshrined in the CFRN. - The heads of the other arms of government go cap in hand to the
executive arm to appeal for the release of funds to carry out their
statutory functions. To this extent, the Legislative and Judicial
arms of government dare not disagree with the Governor in order not
to incur the “wrath” of the Governor which may lead to poor funding
of the budgeted expenditures of the arm of government involved.
Absolute powers corrupt absolutely! The Governors most often than
not use the “control the purse string” to bring the other arms of
government in the State under their whims and control which negate
the constitutional principles of separation of powers. - The Judicial arm is the most vulnerable in view of the lacuna
in s. 121(3) mentioned above. We have seen how some state executive
members and members of the legislative arm change fleet of exotic
cars every two years whilst judicial officers in the State use
rickety cars for close to 8 years without State intervention. We
have heard humiliating stories of how Chief Judges of some States
go to government house and wait for several hours to see the
Governor to seek approval and release of funds due to the judicial
arm. - We have also seen demeaning pictures of how State High Court
Judges and Magistrates line on rows to receive official cars from
their Governors, after years of neglect and the effrontery of those
Governors in listing the said purchase of cars as part of their
administration’s achievements. - We have also seen how powerful the Governors are in determining
who gets appointed as a judge in their respective States even
though the CFRN donated exclusive powers to National Judicial
Council (NJC) to screen and appoint judges throughout the
federation. This is so because the NJC prior to appointing judges
for the States requires their respective State Governors to provide
court house, car and accommodation and the Governors leverage on
same to exert influence over such appointments. - A more disturbing scenario was witnessed in one of the States
in the South Eastern part of the Country wherein the State Governor
organised a Christmas Party for the Judicial arm and gave the
Judges and Magistrate small handouts as Christmas gifts; ostensibly
from the allocations due to the Judicial arm. These ‘learned’
Justices and Magistrates on receiving the said handouts turn to
praise singers and/or bootlickers of the Governor. - The constitutional guaranteed independence of an arm of
government could be easily compromised if the release of fund to
the said arm of government is at the discretion of another arm of
government. No arm of government can effectively function or
discharge its constitutional duties without proper funding. - CONCLUSION
- True financial autonomy of the three arms of government in both
Federal and State Government will guarantee the independence of
each arm of government, guard against totalitarianism, protect the
constitutional principles of separation of powers and indeed deepen
democratic principles. - However, the said financial autonomy should not and cannot be
made through the back door via executive fiat. The relevant
provisions of the CFRN should be amended by the Legislature to
grant full and true financial autonomy to the State Legislative and
Judicial Arms of Government. - The Nigerian Governors Forum through its Chairman Dr. Kayode
Fayemi of Ekiti State stated on Month day the 8th day of
June 2020 that they met with the President and communicated their
concerns on the implementation of the EO and that the President in
return agreed to delay gazetting of the said EO to enable the
parties harmonise the issues and address them. - A long-term political solution would be to amend the
constitution with a view to granting a true and clear financial
autonomy to the Legislative and Judicial arms of government. Some
of the laudable provisions promoted by the EO may be considered and
incorporated in the said amendment to the CFRN with a view to
ensuring a true and clear financial autonomy to the respective arms
of government. These provisions include but not limited to
determination of budget for each arm of government, The budget
templates and models in the schedule to this Executive Order shall
apply to State Legislature and State Judiciary with modifications,
in compliance with Section 121(3) of the CFRN and such other
applicable Laws, providing constitutional safeguard and monitoring
to guard against abuse of public funds and above all, designating
the approved budget for the legislative and judicial arms of
government as a charge on the Consolidated Revenue Fund of the
Federation/State (as the case may be) in order to remove the
element of discretion on the part of the executive arm in
disbursing funds to the other arms of government. - A Short-Term political solution would be for the President
re-tune the EO to achieve workable document without undermining the
“financial autonomy” of the State Legislative and Judicial arms of
government as well as the expenditures of the States. - In the event that the Federal Government and the State
Governments could not find a political resolution to the issues
surrounding the EO, it is expected that State Governors through the
respective Attorneys General would challenge the constitutionality
of the EO. - What ever the outcome would be on implementation of Financial
Autonomy of the Legislative and Judicial arms of government, it is
recommended hereof that a long term solution (amending the
constitution) should be vigorously pursued to help deepen our
democratic principles.
Dated 11th June, 2020
DENNIS N. EZIKA ESQ., Prudent
Attorneys, Ezikadennis@gmail.com,
info@prudentattorneys.com
END NOTES
[1] (2004) 18 NWLR (Pt. 904).
[2] See Black’s Law Dictionary; 7th
Edition at page 227
[3] See section 124 of the CFRN
[4] See S. 84 (2) & (4) of the CFRN
[5] See A.G BENDEL STATE v. A.G FEDERATION & ORS
(1981) LPELR-605(SC); OBI V. INEC & ORS (2007) LPELR-2166(SC); UGBA
& ANOR V. SUSWAM & ORS (2014) LPELR-22882(SC)
[6] Supra note 6
[7] Supra note 6
[8] See the judgment of Akintan (JSC) in AG LAGOS
STATE V. AG FEDERATION supra
[9] See AG LAGOS STATE V. AG FEDERATION (supra)
[10] See. S. 166 of CFRN.
[11] See S. 167 of CFRN.
[12] See AG OGUN STATE v. AG FEDERATION
(CON) (1982) LPELR-11(SC)
[13] See supra note 13
[14] The modification in the Adaptation
Order made by the President gave the State Governor the power to
veto the decision of the Commissioner of Police as to whether the
assembly, meeting or procession should be held whereas the Governor
under section 195(4) of the said 1979 constitution does not have
such power. The power of the Governor in the constitution thereof
was limited to giving directions to the Commissioner of Police of
the State and the Commissioner of Police has the discretion either
to carry out the order/directives or refer same to the President or
the duly authorised Minister who may overrule or modify same by new
directions
[15] Supra note 1
[16] See A.G. ABIA STATE V. A.G.
FEDERATION & ORS (No. 2) reported in 2003 LPELR-610; ELEPHANT GROUP
PLC V. NATIONAL SECURITY ADVISER & ANOR (2018) LPELR-45528)
[17] See supra note 17
[18] See A.G. ABIA STATE & ORS. V.
AG FEDERATION No.2 in supra note 17.
[19] See AG OGUN STATE v. AG FEDERATION in
supra note 13.
[20] Supra note 17
By Dennis N. Ezika Esq
INTRODUCTION
- President Muhammadu Buhari on Friday May 22, 2020 promulgated
Presidential Executive Order No. 10 of 2020 (“EO”)
for the Implementation of Financial Autonomy for the State
Legislature and State Judiciary as guaranteed under section 121(3)
of the Constitution of the Federal Republic of Nigeria, 1999 (as
Amended) (“the CFRN”). - Constitution of the Federal Republic of Nigeria 1999 (fourth
alteration No. 4) act, 2017 created a new subsection 3:
Any amount standing to the credit of the
- House of Assembly of the State and
- the judiciary
In the Consolidated Revenue Fund of the State shall be
paid directly to the said bodies respectively; in the case of
judiciary, such amount shall be paid directly to the heads of the
courts concerned.
- FAR REACHING PROVISIONS OF THE EO
- First Line Charge: Allocation of appropriated
funds to the State Legislature and State Judiciary in the State
appropriation laws in the annual budget of the State, shall be a
charge upon the Consolidated Revenue Fund of the State, as a First
Line Charge. - Deduction and/seizure from the Federation Account funds
due to the defaulting State Governments: The
Accountant-General of the Federation, shall by this EO and any
other regulations or Guidelines as may be issued by the
Attorney-General of the Federation and Minister of Justice,
authorise the deduction from source in the course
of Federation Accounts Allocation from the money allocated to any
State of the Federation that fails to release allocation
meant for the State Legislature and State Judiciary in line with
the financial autonomy guaranteed by Section 121(3) of the
CFRN - Determination of the Budget: Every State
Government to set up a Committee to determine and ascertain from
the Revenue profile of the State, a workable budget for each Arm of
the State Government based on the request and needs of the
Accounting Officers. The membership of the Committee shall comprise
the Commissioner of Finance, Accountant-General of the State,
representative of the State Budget Office, Chief Registrars of the
various courts, the Clerk to the State House of Assembly and the
Secretary of the State Judicial Service Commission. - Creation of State Judiciary Budget Committee:
Each State Judiciary shall set up a State Judiciary Budget
Committee to serve as an administrative body to prepare, administer
and implement the budget of the State Judiciary with such
modifications as may be required to meet the needs of the State
Judiciary. The Committee shall be headed by the Chief Judge and the
Chief Registrar as the Secretary. - Release of funds to the State Judiciary: On
appropriation of Funds, the State Judiciary Budget Committee shall
on a monthly basis or as the case may be, request the Budget Office
of the State to release the statutory allocation either quarterly
or monthly and the Authority to Incur Expenditure (AIE) shall be
raised by the Office of the Accountant-General of the State for the
release of the Fund to all the Heads of Courts/Judicial Bodies in
line with the Appropriation Law. - Budget Templates: The budget templates and
models in the schedule to this Executive Order shall apply to State
Legislature and State Judiciary with modifications, in compliance
with Section 121(3) of the CFRN and such other applicable
Laws. - Appropriation Law: All States of the
Federation shall include the allocations of the two Arms of
Government (legislative and judicial arms) in their Appropriation
Laws. Existing Appropriation law of any State in default of the
Financial Autonomy requirements should be amended. - Special Allocation for the Judiciary: In the
first three years of implementation of this EO, there shall be
special extraordinary capital allocations for the Judiciary to
undertake capital development of State Judiciary Complexes, High
Court Complexes, Sharia Court of Appeal, Customary Court of Appeal
and Court Complexes of other Courts befitting the status of a
Courts. - CONTENTIOUS PROVISIONS OF THE EO
- The EO purports to entrench constitutional provisions of
financial autonomy to the State Legislative and State Judicial arms
of government donated under section 121(3) of the CFRN and to
enhance principles of separation of power among the three arms of
government. However, the fact remains that the President cannot in
exercise of its executive powers either under the constitution or
under any statute act in breach of any clear provisions of the
CFRN. His actions must at all times be within the ambit of the
constitutional provisions. - In AG LAGOS STATE V. AG FEDERATION[1], one of the major issues before the Supreme Court
was Whether the President was right to direct the Minister of
Finance not to release allocations from the Federation Account due
to Local Governments in Lagos State and payable to Lagos State
Government, due to an alleged breach of constitution by Lagos State
Government in creating additional 57 Local Government Areas not
recognised by the CFRN. The Supreme Court in resolving this issue
and declaring the action of the President unconstitutional held
that “the President, in whom the executive powers of the
Federation is vested, is bound to protect and defend the
Constitution but the constitution does not and could not have
intended that the President in fulfilling his constitutional
obligation in protecting and defending the constitution should
commit illegality.” - The Supreme Court per Akintan (JSC) in AG LAGOS STATE
V. AG FEDERATION (supra) further emphasized as follows:
“Nigeria is a federation and operates a federal
constitution. An important attribute of a federal constitution is
that there is a division of power between the centre or the Federal
Government, and the States. The powers and roles given to each of
the governments are as defined and set out in the Constitution.
None of the governments is allowed to step out of its assigned
field. If it does, whatever it does outside its assigned field will
be unconstitutional and will be declared null void by the
court”. - Expenditures of the Legislative and Judicial
arm on a “First Line Charge” on the Consolidated Revenue of the
State. - The President in issuing the EO designated the appropriated
expenditures of the State Legislative and Judicial Arms of
government as a “First Line charge” on the Consolidated Revenue
Fund of the State. - A “charge” in the above context means an
encumbrance, lien or claim[2]. A first line
charge therefore warrants that before any expenditure could be made
from the Consolidated Revenue Fund of the State, funds would first
be disbursed to cover the expenditures on the first line charge
before other disbursements could be made. - It is worthy to mention and clarify that the remuneration,
salaries and allowances of judicial officers of a State are not
expenditures charged upon the Consolidated Revenue Fund of the
State under the CFRN. In other words, such expenditures are not
included in the first line charge or designated as a “charge”
whatsoever in the Consolidated Revenue Fund of the State[3]. - The remuneration, salaries and allowances payable to the Chief
Judge and Judges of the Superior Courts of a State listed in the
constitution constitute a Charge on the Consolidated
Revenue Fund of the Federation[4]. - Capital expenditures as well as recurrent expenditures of the
judicial arm of the State fall under the Appropriation Bill of the
State. These include the remuneration, salaries and allowances
payable to Magistrates, Customary Court Judges, judicial workers
and also include capital expenditure such as official residential
Houses, Court premises, cars, etc. As earlier mentioned, the
remuneration, salaries and allowances payable to judges are charged
to the Consolidated Revenue Fund of the Federation. - The big questions here are (a) whether the framers of the
constitution intended that the expenditures (both recurrent and
capital expenditures) of the Legislative and Judicial arms of
government in a State should be on a first line charge on the
Consolidated Revenue of the State and (b) whether the President can
use executive fiat such as the EO to amend clear provisions of the
constitution. The answers are in the
negative! - Section 121 (3) of the CFRN provides that
“Any amount standing to the credit of the (a) House of
Assembly of the State and (b) Judiciary in the Consolidated Revenue
Fund of the State shall be paid directly to the said bodies
respectively; in the case of Judiciary, such amount shall be paid
directly to the heads of the courts concerned.’’ - The purport of these constitutional provisions under section
121(3) of the CFRN is that upon the passage of the appropriation
bill, the sum due to the State Legislature and the State Judiciary
shall be paid directly to the Head of that arm; subject to the
availability of the Funds in the Consolidated Revenue Fund of the
State and subject to other competing expenditures of the State as
contained in the Appropriation Law. - Unlike sections 84 (2) & (7) of the CFRN which designated the
recurrent expenditure of judicial officers of the Federation (in
addition to their salaries and allowances) as a charge on the
Consolidated Revenue Fund of the Federation, the corresponding
provisions under section 121(3) and 124 of the CFRN clearly omitted
to put either the salaries, allowances or any of the expenditures
(whether recurrent or capital) of either the judicial or
legislative arm of government as a charge on the Consolidated
Revenue Fund of the State. On the contrary, the drafters of the
constitution intended that only the remuneration, salaries and
allowances payable to the holder of offices in section 124 (4) of
the CFRN, which excludes the expenditure of either the judicial or
legislative arms of government, shall be a charge on the
Consolidated Revenue Fund of the State. - It suffices to state that if there is a lacuna in the
constitution or if same requires modifications, it behoves on the
legislature to do same and not for the executive arm to usurp the
legislative function and amend the constitution via executive fiat.
The principles of separation of powers entail that between the
executive, the legislature and the judiciary, neither arm should
invade the province of the other and neither may control, direct or
restrain the action of the other[5]. - In UGBA & ANOR V. SUSWAM & ORS[6] the Supreme Court Per Rhodes
Vivour held as follows: “…. the Constitution sets up a
Federal system by dividing powers between the Federal and State
Governments. It establishes a National Government divided into
three independent branches. The Executive branch enforces the law.
The legislative branch makes the laws, while the judiciary
explains the law. There is no document superior to the Constitution
in Democratic Governance. It is the heart and soul of the
people…” - In OBI V. INEC & ORS[7] the
Supreme Court per Aderemi JSC held as follows “I hold
the strong view that law making in the strict sense of that term is
(the function of) the legislature. Let there be no incursion by one
arm of the government into that of the other. That will be an
invidious trespass. Let me point out that no Constitution fashioned
out by the people, through their elected representatives for
themselves, is ever perfect in the sense that it provides a
clear-cut and/or permanent or everlasting solution to all societal
problems that may rear their heads from time to time. As society
grows or develops, so also must its Constitution, written or
unwritten. More often than not, the law, as passed by the
legislators, may have produced a result or results which do not
accord with the wishes of the people or do not meet the
requirements of today. Let that defective law be put right by new
legislation”. - In the circumstances, the prescription in the EO placing the
expenditures of the State Legislative and Judicial arms of
government as First Line Charge on the
Consolidated Revenue Fund of the State ultra vires the powers of
the President, is an usurpation of legislative function of the
National Assembly and inconsistent with the provisions of the
Constitution. - Deduction and/seizure from the Federation
Account funds due to the defaulting State Governments - The EO mandates the Accountant-General of the Federation to
deduction at source from the Federation Account, allocations due to
a State that defaults in releasing funds meant for the State
Legislature and State Judiciary in line with the financial autonomy
guaranteed by Section 121(3) of the CFRN. - If the State Governments indulge in alleged continuous breach
of an extant provision of the constitution, including s. 121(3),
the Federal Government is not empowered by any law to act
arbitrarily by withholding/deducting from allocation due to a State
from the Federation Account. - The Supreme Court being the apex court in Nigeria and vested
with the judicial powers of interpreting the law had said that
failure of the State to allocate public funds as prescribed by the
CFRN would constitute a breach of the relevant provisions of the
Constitution and any such breach would be actionable in a court of
law and cannot be enforced by executive sanction[8]. - There is no constitutional power conferred on the President
either under section 162 of the CFRN or under any provision of the
Constitution to the withhold allocation due to another tier of
government from the Federation Account on the basis of a conceived
breach of the Constitution[9]. - The provision of the EO authorising the Accountant General of
the Federation to deduct from the Federation Account allocation due
to a State who failed to comply with the EO is an arbitrary
exercise of Presidential powers, a resort to self-help and utter
disregard to rule of law and principles of separation of powers
enshrined in the CFRN. - The only instance where the President is authorised by the CFRN
to deduct from an amount due to a State Government by way of setoff
is in respect of a loan made by the Federation to that State[10]. - Payment due to a State Government from the Federation Account
is a charge upon the Consolidated Revenue of the Federation and
should be released to that State without deduction except as a
setoff to offset a loan amount due[11]. - Creation of additional obligations or duties
on State Officials: - The doctrine of separation of powers is one of the core
principles of a modern democracy and the rule of law. Its
principles in a federal system of government entail that the
Federal Government cannot dictate to the State Government how to
carry out its state functions. The Federal Government cannot also
impose on the States any additional duty/function aside from those
prescribed by the constitution. - The Supreme Court had pronounced that neither the National
Assembly nor the President has the Constitutional power to impose
any new duty on the Governor of the State save for what was
provided under the constitution; that such an imposition would
normally meet with resentment and refusal to perform for the
enforcement of which there is no Constitutional sanction[12]. - In AG OGUN STATE VS. AG FEDERATION,[13] Ogun, Bendel and Borno States sought against the
Federal Government a declaration that the Constitution of the
Federal Republic of Nigeria (Adaptation of Public Order Act) Order,
1981, made by the President via executive order (S.I. No. 5 of
1981) which modified some of the provisions of the Public Order
Act, 1979, was unconstitutional, null and void and of no effect.
The Supreme Court upheld the constitutionality and validity of the
Adaptation Order save for the modification made to Section
4(3) of the said Public Order Act which the court declared
unconstitutional, null and void.[14]
The Supreme Court in declaring the same void held that:
“neither the President of the Federal Republic of Nigeria
nor the National Assembly can unilaterally confer powers on a State
functionary such as the Governor or the Attorney-General of a State
and thus bring him within the investigatory or
scrutinising powers conferred upon the National
Assembly” - One of the striking principles laid down by the apex court
AG OGUN STATE VS. AG FEDERATION (supra) was the
President cannot in exercise of his constitutional powers violate
express provisions of the said constitution. The Supreme Court in
that case held per Fatai-Williams (JSC) as follows: “To
construe the provisions of Section 195 subsection 4 of the
Constitution as giving the Governor of a State the power of
concurrence as the President has done in the Adaptation Order is,
in my view, to do violence to the express provisions of that
section. Consequently, by giving the Governor the power, the
President, perhaps inadvertently, has committed an infraction of
the provision of the said section….. I accordingly hold that this
particular modification is unconstitutional and is therefore null
and void and of no effect”.
- It is clear from the provisions of the EO that the President
ascribed new duties/obligations on State officials contrary to the
provisions of the CFRN and the judgment of the apex court in
AG OGUN STATE VS. AG FEDERATION (supra). These new
obligations/duties on the State include composition and membership
of State Judiciary Budget Committee, composition and membership of
State Budget Committee, adoption of a budget template and
instructing the States to set out special extraordinary capital
allocations for the Judiciary. - Notwithstanding the good intentions of the President in signing
the EO and the remedy which the EO seeks to provide, the President
cannot by executive fiat dictate to the States how to run their
affairs and how public funds should be allocated and doing same
ultra vires the powers of the President under the CFRN. - In AG LAGOS STATE V. AG FEDERATION[15]
the Supreme Court held as follows:
“Nigeria operates a federal system of
government. Section 2(2) of the 1999 Constitution re-enacts the
doctrine of federalism. This ensures the autonomy of each
government. None of the governments is subordinate to the other.
This is particularly of relevance between the State Governments and
the Federal Government, each being, as said by Nwabueze in his
book, The Presidential Constitution of Nigeria, pages 39-42 , an
autonomous entity in the sense of being able to exercise its own
will in the conduct of its affairs within the Constitution, free
from direction by another government”.
- STATUTORY BACKING OF THE EO
- Without going into the history of Executive Orders, it must be
mentioned that Executive Orders have the force of law when signed
by the executive and gazetted. By Section 5(1) of the CFRN the
Executive Powers of the Federation is vested in the President and
extend to the execution and maintenance of the CFRN, all laws made
by the National Assembly and to all matters with respect to which
the National Assembly has power to make laws. S. 5(2) of the CFRN
also vests the Executive Powers of the State in the Governor. The
Courts have also taken judicial notice of executive orders as
having the force of law unless challenged and set aside by the
court[16]. - In ELEPHANT GROUP PLC V. NATIONAL SECURITY ADVISER &
ANOR[17] the court in
upholding the validity of executive order held as follows:
“In Law, an Executive Order is an order or regulation
issued by the President or some administrative authority under his
direction for the purpose of interpreting, implementing, or giving
administrative effect to a provision of the constitution or of some
or treaty. It is indeed an effective instrument or tool for good
governance and administration by the Government” - Executive Orders having been judicially noticed by the courts
have become part of our law. However, the court in its adjudicatory
function may declare any or all the provisions of an executive
order invalid, null and void if same ultra vires the power of the
executive. - However, there had been instances where the court declared an
executive order valid notwithstanding that the Executive Order made
material amendments/modifications an existing law[18]. There had also been instances where the court
declared executive order; particularly provisions that alter/amend
clear provisions of the constitution, invalid and
unconstitutional[19]. - In AG ABIA STATE V. AG FEDERATION[20], the States through their respective
Attorneys General challenged Statutory Instrument of No. 9 of 2002
(executive order) made by the then President Olusegun Obasanjo
which modified an existing law; Allocation of Revenue (Federation
Account Etc) Act of 1990 as amended by Decree 106 of 1992 in order
to bring same in conformity with the CFRN pursuant to section 315
of the CFRN. The then President in modifying the existing law
allegedly increased the allocation due to Federal Government in the
Federation Account by 7.5% and same was challenged by the States as
unconstitutional. The Supreme Court in dismissing the suit held,
among other things, as follows: “…. It is true that
separation of powers is essential to a healthy democracy, the power
given the President and also to State Governors in existing law of
the State by the Constitution is not an abuse of the principle or
doctrine of separation of powers, it is essential to giving meaning
to an existing law so that the Constitution itself is not abused. I
therefore hold that the exercise of the power to modify the
allocation formula in the existing Allocation of Revenue
(Federation Account Etc.) Act (Cap. 16, Laws of the Federation of
Nigeria, 1990) as amended by Allocation of Revenue (Federation
Account Etc) (Amendment) Decree (No. 106 of 1992) is constitutional
and within the scope of his right under the
Constitution”. - It is customary that as soon as an executive order is
signed/and gazetted, it becomes operational and effective. It is
only the court of competent jurisdiction that can declare an
executive order or any part thereof null and void. - In the circumstances and in view of the contentious provisions
of the EO discussed above which touch on the very fabric of
separation of power and rule of law enshrined in our constitution,
it will be interesting to see how same will be resolved by the
Supreme Court, if the matter is competently presented before
it. - THE MISCHIEF IN S. 121 (3) OF THE CFRN AND THE REMEDY
WHICH THE EO INTENDED TO PROVIDE - It should be noted that the EO was promulgated to fill a
“lacuna” that exist under section 121(3) of the CFRN. - The intendment of the law under section 121(3) of the
Constitution was that the funds due to the legislative and judicial
arms of the state should be paid directly to the heads of those arm
as soon as the funds are available to meet the said
expenditures. - The Governors, being the heads of the executive arm of their
respective States decide how the funds are released to meet the
different expenditures contained in the budget and most times
underfund the legislative arm and the judicial arm not withstanding
the sum appropriated for each arm of government in the budget. The
executive undoubtedly has wide discretion in implementing/executing
the law, including the Appropriation Law. - The revenues in Appropriation Law are estimates and accrue to
the Consolidated Revenue Fund of the State in piecemeal either
monthly, quarterly or otherwise. The Executive decides the priority
to be accorded to each heads of expenditure in contained in the
Appropriation Law and how funds are released to meet such
expenditures. - The legislative and judicial arms of the State to this end
live/survive at the mercy of the executive arm with regards to
funding and meeting budgeted expenditures. A State Governor thus
exercises his discretion in determining, albeit unintended, the
quantum of funds to be released to the other arms of government and
when the funds will be released to the relevant arm of government.
By so doing, the Governor exerts considerable influence over the
operations and more particularly the decisions/actions of the other
arms of government and in contrast to the principles of separation
of power enshrined in the CFRN. - The heads of the other arms of government go cap in hand to the
executive arm to appeal for the release of funds to carry out their
statutory functions. To this extent, the Legislative and Judicial
arms of government dare not disagree with the Governor in order not
to incur the “wrath” of the Governor which may lead to poor funding
of the budgeted expenditures of the arm of government involved.
Absolute powers corrupt absolutely! The Governors most often than
not use the “control the purse string” to bring the other arms of
government in the State under their whims and control which negate
the constitutional principles of separation of powers. - The Judicial arm is the most vulnerable in view of the lacuna
in s. 121(3) mentioned above. We have seen how some state executive
members and members of the legislative arm change fleet of exotic
cars every two years whilst judicial officers in the State use
rickety cars for close to 8 years without State intervention. We
have heard humiliating stories of how Chief Judges of some States
go to government house and wait for several hours to see the
Governor to seek approval and release of funds due to the judicial
arm. - We have also seen demeaning pictures of how State High Court
Judges and Magistrates line on rows to receive official cars from
their Governors, after years of neglect and the effrontery of those
Governors in listing the said purchase of cars as part of their
administration’s achievements. - We have also seen how powerful the Governors are in determining
who gets appointed as a judge in their respective States even
though the CFRN donated exclusive powers to National Judicial
Council (NJC) to screen and appoint judges throughout the
federation. This is so because the NJC prior to appointing judges
for the States requires their respective State Governors to provide
court house, car and accommodation and the Governors leverage on
same to exert influence over such appointments. - A more disturbing scenario was witnessed in one of the States
in the South Eastern part of the Country wherein the State Governor
organised a Christmas Party for the Judicial arm and gave the
Judges and Magistrate small handouts as Christmas gifts; ostensibly
from the allocations due to the Judicial arm. These ‘learned’
Justices and Magistrates on receiving the said handouts turn to
praise singers and/or bootlickers of the Governor. - The constitutional guaranteed independence of an arm of
government could be easily compromised if the release of fund to
the said arm of government is at the discretion of another arm of
government. No arm of government can effectively function or
discharge its constitutional duties without proper funding. - CONCLUSION
- True financial autonomy of the three arms of government in both
Federal and State Government will guarantee the independence of
each arm of government, guard against totalitarianism, protect the
constitutional principles of separation of powers and indeed deepen
democratic principles. - However, the said financial autonomy should not and cannot be
made through the back door via executive fiat. The relevant
provisions of the CFRN should be amended by the Legislature to
grant full and true financial autonomy to the State Legislative and
Judicial Arms of Government. - The Nigerian Governors Forum through its Chairman Dr. Kayode
Fayemi of Ekiti State stated on Month day the 8th day of
June 2020 that they met with the President and communicated their
concerns on the implementation of the EO and that the President in
return agreed to delay gazetting of the said EO to enable the
parties harmonise the issues and address them. - A long-term political solution would be to amend the
constitution with a view to granting a true and clear financial
autonomy to the Legislative and Judicial arms of government. Some
of the laudable provisions promoted by the EO may be considered and
incorporated in the said amendment to the CFRN with a view to
ensuring a true and clear financial autonomy to the respective arms
of government. These provisions include but not limited to
determination of budget for each arm of government, The budget
templates and models in the schedule to this Executive Order shall
apply to State Legislature and State Judiciary with modifications,
in compliance with Section 121(3) of the CFRN and such other
applicable Laws, providing constitutional safeguard and monitoring
to guard against abuse of public funds and above all, designating
the approved budget for the legislative and judicial arms of
government as a charge on the Consolidated Revenue Fund of the
Federation/State (as the case may be) in order to remove the
element of discretion on the part of the executive arm in
disbursing funds to the other arms of government. - A Short-Term political solution would be for the President
re-tune the EO to achieve workable document without undermining the
“financial autonomy” of the State Legislative and Judicial arms of
government as well as the expenditures of the States. - In the event that the Federal Government and the State
Governments could not find a political resolution to the issues
surrounding the EO, it is expected that State Governors through the
respective Attorneys General would challenge the constitutionality
of the EO. - What ever the outcome would be on implementation of Financial
Autonomy of the Legislative and Judicial arms of government, it is
recommended hereof that a long term solution (amending the
constitution) should be vigorously pursued to help deepen our
democratic principles.
Dated 11th June, 2020
DENNIS N. EZIKA ESQ., Prudent
Attorneys, Ezikadennis@gmail.com,
info@prudentattorneys.com
END NOTES
[1] (2004) 18 NWLR (Pt. 904).
[2] See Black’s Law Dictionary; 7th
Edition at page 227
[3] See section 124 of the CFRN
[4] See S. 84 (2) & (4) of the CFRN
[5] See A.G BENDEL STATE v. A.G FEDERATION &
ORS (1981) LPELR-605(SC); OBI V. INEC & ORS (2007) LPELR-2166(SC);
UGBA & ANOR V. SUSWAM & ORS (2014) LPELR-22882(SC)
[6] Supra note 6
[7] Supra note 6
[8] See the judgment of Akintan (JSC) in AG
LAGOS STATE V. AG FEDERATION supra
[9] See AG LAGOS STATE V. AG FEDERATION
(supra)
[10] See. S. 166 of CFRN.
[11] See S. 167 of CFRN.
[12] See AG OGUN STATE v. AG FEDERATION (CON)
(1982) LPELR-11(SC)
[13] See supra note 13
[14] The modification in the Adaptation Order
made by the President gave the State Governor the power to veto the
decision of the Commissioner of Police as to whether the assembly,
meeting or procession should be held whereas the Governor under
section 195(4) of the said 1979 constitution does not have such
power. The power of the Governor in the constitution thereof was
limited to giving directions to the Commissioner of Police of the
State and the Commissioner of Police has the discretion either to
carry out the order/directives or refer same to the President or
the duly authorised Minister who may overrule or modify same by new
directions
[15] Supra note 1
[16] See A.G. ABIA STATE V. A.G. FEDERATION &
ORS (No. 2) reported in 2003 LPELR-610; ELEPHANT GROUP PLC V.
NATIONAL SECURITY ADVISER & ANOR (2018) LPELR-45528)
[17] See supra note 17
[18] See A.G. ABIA STATE & ORS. V. AG
FEDERATION No.2 in supra note 17.
[19] See AG OGUN STATE v. AG FEDERATION in
supra note 13.
[20] Supra note 17