Effects of onshore/offshore Supreme Court judgment on judges' salaries
By
THE impact of the above judgment in Nigeria today has become more real than apparent. It affects all facets of our political, legal and economic lives. Day by day, we become confronted with new dimensions of this, with due respect, amorphous judgment which is now threatening even the welfare of the entire judiciary. The is perhaps the reason why we are extremely embarrassed and ashamed to read that our distinguished judges have not beep paid their salaries since April this year!
A judgment that has manifestly deprived the littoral States f their God-endowed natural resources, has now boomeranged to deny the judges of their deserved entitlements. Perhaps, this ironically plays out the prophetic admonition of the great Apostle Paul in Romans Chapter 2 Verse 1, that:
"... you who pass judgment on someone else, for at whatever point you judge the other, you are condemning yourself."
Part of the judgment dealing with the judiciary.
In the counter-claims of some states, especially Delta State (of which I was privileged to be part of the legal team) the articulate Ogundare, JSC in his leading judgment as contained in a certified True Copy of same dated 5/42002 at pages 51 - 54 held thus:
"The funding of the judiciary is provided for in the constitution> For subsections (1), (2), (4) and (7) of section 84 provide -
"(1) There shall be paid to the holders of the offices mentioned in this section such remuneration, salaries and allowances as may be prescribed by the National Assembly, but not eceeding the amount as shall have been determined by the Revenue Mobilisation Allocation and Fiscal Commission.
(2) The remuneration, salaries and allowances payable to the holders of the offices so mentioned shall be a charge upon the Consolidated Revenue Fund of the Federation.
(3) The offices aforesaid are the offices of President, Vice-President, Chief Justice of Nigeria, Justice of the Supreme Court, President of the Court of Appeal, Justice of the Court of Appeal, Chief Judge of the Federal High Court, Judge of the Federal High Court, Chief Judge and Judge of the High Court of the Federal Capital Territory, Abuja, Chief Jude of a State, Judge of the High Court of a State, Grand Kadi andKadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja, President and Judge of the Customary Court of Appeal of the Federal Capital Territory, Abuja, Grand Kadi and Kadi of the Sharia Court of Appeal of a State, President and Judge of the Customary Court of Appeal of a State,... the National Judicial Council..."
(4) The recurrent expenditure of judicial offices in the federation (in addition to salaries and allowances of the judicial officers mentioned in subsection (4) of this section) shall be a charge upon the Consolidated Revenue Fund of the Federation.
(5) It is clear from the above provisions that it is the Consolidated Revenue Fund of the Federation, and not the Federation Account, that is charged with the salaries and allowances of judicial officers and recurrent expenditure of judicial offices in the federation. The Consolidated Revenue Fund of the Federation is established under section 80 of the Constitution. The charge on the Federation Account is clearly inconsistent with Section 84 of the Constitution and is, therefore, unconstitutional, notwithstanding the provision of subsection 9 of section 192 (sic) which provides:
(6) Any amount standing to the credit of the judiciary in the Federation Account shall be paid directly to the National Judicial Council for disbursement to the heads of courts established for the Federation and the states under section 6 of this Constitution."
It may be that it was intended to give the judiciary a share of the Federation Account but this has not been expressly or impliedly provided for:'
Thus, it is clear that the hitherto first lien charge on the Federation Account for the judiciary as regards their salaries and recurrent expenditure was declared unconstitutional. Above all, the Federal Government was specifically at the instance of Delta State injuncted from further violating the Constitution in that regard.
"Unrealistic" Budget for the judiciary 2002.
As could be gleaned from the now "unrealistic" budget 2002 (with due apologies to our Minister of Information Prof. Jerry Gana), the judiciary had a N28 billion first lien charge on the Federation Account. This was as at the last sitting of the National Assembly when both Houses passed the Appropriation Act shortly before the Easter holidays.
Consequently, the effect of the judgement on this N28 billion first lien charge on the Federation Account meant in clear terms that same was unconstitutional, null and void.
"Realistic" Budget for the Judiciary 2002.
As reported by the Vanguard Newspaper of 27/6/2002 (front page and page 2) thus: FG, N-Assembly okay new 2002 budget," the Minister of Finance was quoted thus:
"Ciroma painted a gloomy picture of he revenue profile of 2002 budget, saying that both the projections given by the President in the budget proposal he presented September last year to the National Assembly and the one proposed in the Appropriation Bill passed by the two Chambers of the Legislature had become unrealistic (sic)... over the last five months, the actual revenue realised was N236.2 billion, whereas expenditure totalled N325.15 billion leading to a deficit of N88.5 billion... His words: "In the light of the current realities, it was agreed that committee be set up comprising both arms (sic), six from both sides (sic) with the Vice President to chair the committee. They will look at the revenue profile, projected expenditure and priorities government programmes. In other words, there will be total co-operation between both arms (sic).
This is a very healthy development (sic)....."
President Obasanjo in his original budget proposals had projected a total expenditure of N840.855 billion based on an anticipated cash flow of N648.6 billion.
The National Assembly, however, shot up the figure to N1.06 trillion even after the President had written, pleading that the proposal be cut to N706 billion."
In this "realistic" budget 2002, it is alleged by the report thus:
June-Dec Expenditure, Judiciary, N2bn, Capital release made,
National Judicial Council, N5bn.
From N28bn for the judiciary to N7bn, cutting off a massive N21bn from their budget proposals! That aside, how could only two arms of government as stated above i.e executive and legislature, determine the budget? Where is the constitutionally recognized third and most important arm of government (the judiciary) under Section 6 of the Constitution? Why should only two arms of government renegotiate a budget meant for the three arms of government? This is the tragedy we have sadly found ourselves in this country. Yet, our Minister of Finance says "this is a very healthy development(?)"
So, the interest and welfare of the judiciary at this stage, will be entirely at the whim of the executive which it will later channel through the centralised National Judicial Council as established by Section 153 of the 1999 Constitution.
Powers of the National Judicial Council
Under the Third Schedule Part 1, Item I of the Constitution, Section 21(e) provides that the National Judicial Council shall:
"(e) collect, control and disburse all money, capital and recurrent for the judiciary."
In addition, Section 162(9) provides thus:
"Any amount standing to the credit of the judiciary in the Federation Account shall be paid directly to the National Judicial Council for disbursement to the heads of courts established for the Federation and the states under section 6 of this constitution."
The relevant provisions of Section 6 provides thus:
"^(1) The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.
"(2) the judicial powers of a state shall be vested in the courts to which this section relates, being courts established, subject as provided by this Constitution for a State.
(5) this section relates to-
(a) the Supreme Court of Nigeria;
(b) the Court of Appeal
(c) the Federal High Court;
(d) the High Court of the Federal Capital Territory, Abuja;
(e) a High Court of a State;
(f) the Sharia Court of Appeal of the Federal Capital Territory, Abuja;
(g) a Sharia Court of Appeal of a State;
(h) the Customary Court of Appeal of the Federal Capital Territory Abuja;
(i) a Customary Court of Appeal of a State;'
Accordingly and in view of the hitherto unconstitutional practice, once anything affects the Federation Account, it afortiori ought to affect the Judges and Staff of the Courts above listed. That was why I humbly believe that the most apposite capital of the judgement of 5/4/2002 is that by THIS DAY Newspaper of 6/4/2002 (front page) which declared thus: "Supreme Court Restructures Federation Account."
Executive alibi on unpaid Judges' salaries
As directed by the judgment, since the approved budget for the judiciary is no loner a first line charge on the Federation Account, its priority and security is thereby extinquished. Thus, it is now classified as an insignificant "lightweight" participant in the over-crowded Consolidated Revenue Fund of the Federation. In addition, since according to our now "learned" President, there is need to first study and understand the effects of the judgment, everything must be on hold in an Escrow Account, from the not less than 13% derivation under the proviso to Section 162 thereof to payment of our distinguished Judges salaries. This appears to the be dubious alibi of the executive in withholding Judges salaries since April 2002.
The Special Assistant to the Delta State governor on Media and Publicity., Mr. Abel Oshevire, puts the issue succinctly in THISDAY Newspaper of 25/6/2002 at page 5 thus:
"... based on the decision certain payments accruing to oil producing States and to other sections of the economy were stopped."
Worse still, the alleged two Committees set up by the Executive, i.e one to study the "legal implications" of the judgment and another to find "political solution" to the judgment, have now submitted their predictably conflicting reports last month; and it now waiting for the bureaucratic system working at its usual snail speed to implement same either through a black(?) or white paper.
To us, it is unacceptable. It is reckless, disrespectful and an invitation to judicial anarchby and atrophy. Our judiciary and its judges including the staff are sui generis. Above all, the judiciary in concord with the doctrine of Separation of Powers as propounded by Louis de Secondat later known as Baron de Montegqueiu in "Espirit des lois" 1748 (the Spirit of laws), is firmly entrenched in Section 6 of the Constitution. Judges are the foundations of the Rule of Law, Legal Order and Democracy. We must therefore make sure that they are not only regularly paid; but the their salaries and welfare packages must be highly attractive.
We must know that a country that does not fund its judiciary and does not pay judges salaries as at when due cannot demand speedy trial, justice and honesty from its judges. Neither can we place added burdens on them nor continue to castigate them at will. It is in the light of the above that I respectfully disagree with the uninformed criticism of the judiciary by our elder Statesman and Minister of Defence, Rtd. General Theophilus Danjuma in his speech published in The Guardian newspaper of 21/6/2002 at page 55 thus:
The judicial system as it sis today is weak and fledgling with traces of incompetence. The delay in prosecuting cases and subversion of justice is common place.... The Nigerian judiciary to all needs to be revitalised, equipped and staffed to provide justice to all Nigerians irrespective of status. In the process any member of the judicial (sic) who is found to be incompetent should be sanctioned immediately while incentives should be given to those who excel." To be continued.
Whilst we share the same vies as regards funding, staffing and sanction for incompetence, we hasten to add that traces of incompetence in a majority of cases, is as a result of poor funding. As regards the concluding portion of "incentives" to Judges, that part with respect, obviously exposes the innumerate understanding by the elder statesman of the sacred nature of a judicial office. It event further attempts to introduce the dangerous parametres of politics into the judiciary. What are the "incentives" and how do we determine what it means to "excel"? There are already provisions for elevation of Judges to higher Courts who meet the criteria in the Constitution and Judicial standards.
The judicial icon Obaseki, JSC in Oloyo Vs. Alegbe (1983) 2 SCNLR 35 at 96 admonished us on the effects of such jaundiced opinion, thus:
"Access to the Court in unrestricted... It might be argued that litigation costs time and money. But we must not forget that it is the only non-violent process by which disputes are resolved in a democratic society. If such arguments are allowed to dominate our thinking... the result would be a breakdown of law and order.:
(underlining supplied for emphasis)
Poor funding: Threat to independence of the judicary.
When we attack the judiciary and judges as above, do we stop for a while to ponder over the underlisted issues, that is to say: "NBA raises alarm over unpaid Judges' salaries," See the Champion Newspaper of 21/6/2002 at page 3 wherein it is reported thus:
"According to Mr. Olanipekun (Abuja branch NBA Chairman) As I talk to you gentlemen of the press judges received only their April salaries, May hs not been paid.... A situation whereby Judges salaries are delayed for three months is an invitation to anarchy... He blamed the President Olusegun Obasanjo and the... National Judicial Council for the problem."
In the Punch Newspaper of 21/6/2002 at page 3, the vibrant Chairman was more apt, thus:
"Mr. Olanipekun said the salaries of Judges, including other staff of the judiciary were not being paid as at when due."
It is instructive to observe that these comments are coming from a very reliable and authentic source who happens to be the distinguished Chairman of the NBA (Abuja Branch).
Speaking in a similar vein, the recently retired and erudit professor Justice Ademola Kuti in his interview published in the Sunday Punch of 23/6/2002 at page 14 sadly retorted on why he shunned his valedictory session, thus:
"Q: Why didn't you show up?
Ans: Well, because the President that approved that I should go for a medical treatment. He approved that $2,800 should be given to me; $2,000 was to be given to me and N234,000 for my ticket. As I am talking to you now, nothing has been given to me. Everything government should have done for me, I have done for myself.
Q: Does the Federal Government sponsor Judges abroad medical treatment?
Ans: Yes: Judges go abroad in my own jurisdiction... I am only going once in 17 years and the money is not available, It is most uncharitable."
Rather than deny these assertions in its response titled "our case, Abuja High Court Replies Justice Kuti" (See the Sunday Punch of 30/6/2002 at page 11) the Chief Registrar Mr. Mwa'Da Balami sarcastically corroborated same by stating thus:
Q: what is your reaction to the allegation by Justice Kuti that money was approved for him go get medical treatment abroad but was not released?
Ans: The government did not release the money. Yes, approval was given but money wasn't available.. it was only in June 25, 2002 that we collected the cheques for the year 2002 recurrent expenditure under which we can pay medical bills."
What a monumental disgrace! Paradoxically, the Anti-Corruption Commission nevertheless charges offenders for corruption before Courts manned by Judges who are owed more than three months salaries! And you require speedy tial? The most sorrowful part of this judicial nightmare is that by the nature of their office, Judges can neither go on strike nor picket. They are entirely at the mercy of the executive.
During this year's NBA Week (Abuja branch) held at the Sheraton Hotels on 25/3/2002, the very articulate Adams Oshoiomole (President of the Nigerian labour Congress) made a case for the judiciary. He was further disgusted upon being arraigned in Abuja to see cobwebs and filth inside the courts with miserable tables and broken chairs to match. These disgraceful pieces of furniture were equally complemented by pitiable Nigerians referred to as "Clerks" or "Court Registrars" whose appearances constantly remind us of the extent of pandemic poverty in our land. It was a pity. To further aggravate this tragedy was the conspicuously parked rickety vehicle of the Judge and his ill-fed orderly dozing inside. He contrasted this scenario with the spacious, cozy, classy and sassy offices of Ministers, Senior Special Adviser or a Special Adviser(?) to the Senior Special Assistant to the president. In addition to all these severe hardships, our Nigerian Judges are also not immune from the usual state of insecurity in the country.
Thus, it was reported in the Vanguard Newspaper of 25/6/2002 at page 8 that: "Enugu Judge loses car to robbers.' The report further stated thus:
"A gang of armed robbers has attacked the administrative Judge of the Enugu State judiciary ... dispossessing him of his official car... the armed robbers attacked him during broad day light while driving home during the week.... The judge and his chauffeur were both commanded out of the car at gun point... It was good Samaritans that took the judge and his chauffeur to a nearest Police Station..."
True to type as to the sacred nature of their job, it was reported that:
"When Vanguard visited the official quarters of the (sic) Justice.. over the incident, he kept a sealed lip."
Most unfortunately, the harmless and brutally murdered Chief Magistrate Maria - Therese Nsah of the lower bench, was not that lucky. In his reaction on the matter, her brother Mr. Patrick Ekpeyong Nsah told The week magazine of 1/7/2002 at page 19 that:
"Recently, she told me she applied to the Commissioner of Police for Police protection and the Commissioner order that the Federal Housing Police Station should provide her with 24 hours security coverage. They did that but shortly after the police general strike, the police were withdrawn without reasons."
The judiciary is no doubt the weakest of the three arms of government in Nigeria. This much has been judicially noticed in the case of Abaye Vs. Ofili (1986) 1 NWLR (pt. 15) 134 at page 160 paras. G-H wherein the sagacious Nnamani, JSC of blessed memory lamented thus:
:"Thus Courts are week and have only judgments. But they remains without argument the main bulwark against authoritarianism in a society which espouse the Rule of Law. To ignore... Courts is to lay a sure foundation for despotism and anarchy."
Again, the proficient Obaseki , JSC in Governor of Lagos State Vs. Ojukwu (1986) 1 NWLR (pt. 18) 621 at 638 emphasised the importance of the independence of the judiciary thus:
"More relevant than the case in hand, the rule of law means that disputes as to the legality of acts of government are to the decided by Judges who are wholly independent of the executive... That is the position in this country where the judiciary has been made independent of the executive by the constitution."
In order to uphold the independence of the judiciary therefore, this executive indiscipline and nonchalance towards the judiciary must immediately be checked, as was vibrantly encapsulated by Uche Omo, JSC in Okafor Vs. Attorney-General of Anambra State (1992) 2 NWLR (pt. 224) 396 at 421 paras. B-D and 237 lines 5-10, to the effect that:
"I entirely agree with the respondent's Counsel that the Courts must jealously guard their powers to supervise and where necessary discipline the Executive if it errs. The courageous stand of the Courts in the Ojukwu V. Governor of Lagos State case is what is expected of the courts."
The executive is also respectfully charged by this medium to with utmost dispatch, pay the salary arrears of our distinguished judges and this staff in Nigeria. Let this not be heard again in our public places that judges are owned anything. The executive must source that funds to pay judges' salaries promptly form anywhere, including borrowing as a last resort.
Executive action may be an indirect way of asking the judges for a refund as is the case with some littoral States.
Perhaps, this new style by the executive might be a discreet way of asking the judiciary and judges to refund the "now unconstitutional" allocations it had been receiving through the National Judicial Council since 29th May 1999 before the "almighty judgment" of 5/4/2002. Indeed some littoral States especially Akwa-Ibom and Ondo State have equally been asked albeit directly to make refunds after the judgment (for receiving a tiny fraction from what naturally belongs to them).
Conclusion:
If I must sound sarcastic at this juncture, to be entitled to a refund therefore, the executive must prove that a Court of Judge is located "offshore." Thank God, all our Courts and Judges are located "onshore" within the terms of the judgment. Therefore, their salaries and all allowance must be paid forthwith so that they can proclaim as it is written in the book of Acts Chapter 28 Verse 1 that they are "... safely onshore."
Nov 2002