Court orders substituted service on 36 states in suit seeking financial autonomy for judiciary

From Godwin Tsa, Abuja

A Federal High Court sitting in Abuja has ordered substituted service on the Attorney General of the 36 states of the federation in a suit against the 36 states of the federation seeking total financial autonomy for the nation’s judiciary.

In an originating summons marked FHC/ABJ/CS/502/2021, the plaintiff, Emeka Okoye, sued the 36 states through their Attorney Generals.

Meanwhile, ahead of the hearing date fixed for December 7, the court has granted leave in favour the plaintiff to serve the 36 state Attorney Generals by substituted means by posting the originating summons and other processes through Courier services to be delivered to their various addresses.

Specifically, Justice Binta Nyako had after hearing an exparte motion by counsel to the plaintiff, Chief Oba Maduabuchi (SAN), appointed a national courier outfit, Red Star Express, as special bailiff to effect service of the originating summons and other accompanied processes on the defendants as good and proper service.

In moving the exparte motion, the senior lawyer had submitted that originating summons for service on the defendants outside jurisdiction of court issuing the writ is governed by the provisions of sections 97 and 99 of Sheriffs and Civil Process Act and not the rules of the court issuing the originating summons.

He further submitted that without the leave of the court sought and obtained, the service of the originating processes on the defendants will be null and void and liable to be set aside upon application by the defendants.

Also listed as defendants in the originating summons dated June 18, 2021, are the Revenue Mobilisation Allocation and Fiscal Commission (RMAFC), the Federation Accounts Allocation Committee (FAAC), and the Attorney General of the Federation (AGF).

In the substantive suit, the plaintiff, is seeking an order of the Federal High Court, “directing the Federation Account Allocation Committee (2nd defendant) to henceforth pay directly all monies standing to the credit of the judiciary to the National Judicial Council (NJC).

Among the questions he formulated for the court to find an answer to in resolving the matter is “Whether by the provisions of sections 121 (1), (2) and (3) of the 1999 constitution of the Federal Republic of Nigeria (as amended), it is proper for the state Governor to include the budgetary expenditure of the judiciary in the state which is charged upon the Consolidated Revenue Fund of the state in the budgetary estimates the Governor presents to the state House of Assembly?”

He also asked, “Whether by the provisions of section 121 (3) of the 1999 Constitution of the Federal Republic of Nigeria(as amended), it is proper to pay funds standing to the credit of the judiciary in the state to any other person or authority outside the heads of court in the various states as directed by section 121(3) of the 1999 constitution?

“Whether by the community reading of sections 81(3), 121(3) and 162(9) of the 1999 constitution of the Federal Republic of Nigeria(as amended), the Federation Account Allocation Committee is right in paying the fund standing to the credit of the judiciary to various state Governors and not National Judicial Council as directed by the above sections of the constitution?”

He sought an order of the court “directing the Federation Account Allocation Committee (2nd defendant) to henceforth pay directly all monies standing to the credit of the judiciary to the National Judicial Council (NJC).”

The plaintiff prayed for “an order directing the Accountant General of each state of the federation to pay directly to each head of court in the state, all such funds standing to the credit of the judiciary in the Consolidated Revenue Fund of the state.”

In his 19-paragraph affidavit filed in support of his suit, the plaintiff said the 1999 constitution is the grund norm upon which all laws and actions of governments and agencies derive their powers and authority.

He said Nigeria, upon independence, adopted a federal system with three tiers of federal, state and local governments with three arms – the executive, legislature and judiciary.

Mr Okoye said the Nigerian constitution created 10 courts for the federation and the 36 states.

He said the same constitution made various provisions for the disbursements of funds due to the judiciary from the federation account to be paid directly to the National Judicial Council and not any other person or authority.

The lawyer added that the constitution equally makes provisions for how funds standing to the credit of the judiciary from the consolidated funds in the states are to be disbursed a and paid directly to the various heads of courts of the various states.

He however noted that under the system being adopted in violation of the constitution, funds meant for the judiciary are being to the governors of the 36 states, instead of the National Judicial Council (NJC) and heads of court in the states.

He said the direct payment of the fund due to the judiciary to the governors of the 36 states “is against the spirit and letters of the 1999 constitution.”

He argued that the NJC “is the only body authorised by the constitution to receive and distribute funds due to the judiciary either in states or the federal courts for their capital and recurrent expenditures.”