Direct LG Funding: Only Constitution Amendment Can Override S’Court’s Order, Says Ozekhome

Alex Enumah in Abuja

Foremost constitutional lawyer, Professor Mike Ozekhome, SAN, has stated that the judgement of the Supreme Court which ordered the payment of monthly allocations directly to the 774 Local Government Areas is binding and can only be annulled through the amendment of the constitution.
Ozekhome, who is also a human rights activist submitted that there was no ambiguity in the judgement to warrant any delay in its implementation.

He said: “It is only an amendment of the Constitution under Section 9 thereof that can override the decision. No person or authority can decide, whimsically and arbitrarily to disobey the judgement or pick and choose what portions of the judgement to obey or which to discard.”
Citing a landmark judgement delivered in 2007, the senior lawyer pointed out that “an order of court whether valid or not must be obeyed until it is set aside.
“An order of court must be obeyed as long as it is subsisting by all, no matter how lowly or lightly placed in the society. This is what the rule of law is all about. Hence the courts have always stressed the need for obedience to court orders”.

Ozekhome’s position was contained in a statement issued on Thursday in Abuja, wherein he maintained that Section 162 of the 1999 Constitution upon which the judgement was predicated, was rightly interpreted by the 7-man panel of Justices of the apex court.
He disclosed that many Nigerians and non-Nigerians alike have repeatedly asked if the Supreme Court was not wrong in its interpretation of Section 162(3), (4), (5) and (6) of the 1999 Constitution and what happens to the allegedly wrong judgement.

“They want to know if the judgement is superior to the said “clear” provisions of the Constitution and if it is enforceable or capable of being enforced.
“They also want to know how, in the event that I say it is enforceable”, the statement read in part.
Responding to the questions raised, the senior lawyer argued that a law is only what the courts interpret it to be and not what it says on bare paper.
According to him, the law, whether constitutional, substantive, statutory, or adjectival, remains what it is – inanimate and dead-on paper – until the life and the oxygen of interpretation are breathed into it by a court of law.

“Consequently, it is thus the interpretation which was given by the Supreme Court to the entire section 162 of the Constitution on the sharing procedure between the federal government, states and the LGs, and not the bare provisions of the Constitution that prevails”, he said.

On whether the judgment is enforceable, the constitutional lawyer stated that Section 287 (1) of the 1999 Constitution provided that “the decisions of the Supreme Court shall be enforced by in any part of the federation by all authorities and persons and by courts of subordinate jurisdiction to that of the Supreme Court”.
“Even if the Supreme Court was wrong in its interpretation of section 162 dealing with the State Joint Local Government Account, the judgement remains binding on all and for all times”.

He stressed that it does not matter whether the judgement is downright stupid, illogical or not well researched; or that parties affected do not like it.
His words: “Right or wrong therefore, court judgements must be obeyed until set aside by a higher court, or a challenged section is amended by the Legislature.
“Since no court is higher than the Supreme Court of Nigeria, only an amendment to the Constitution by the NASS under Section 9 can override the judgement.
“That was why the same Supreme Court, acutely aware that it is susceptible to mistakes and errors being constituted by mere mortals and not almighty God or angels, once famously declared through late venerable Socrates of the Nigerian Bench, Honourable Justice Chukwudifu Oputa, in the causa celebre of Adegoke Motors Ltd v Adesanya (1989) NWLR (Pt 109) 250, that “the Supreme Court is final not because it is infallible, it is infallible because it is final.”

On how the Supreme Court judgement can be implemented, Ozekhome explained that the federal, states and LGs should have to meet at FAAC and decide on modalities and procedures of opening up accounts for LGs so that their allocation under Section 162 is paid directly to them and not to the joint state LG account that is oftentimes waylaid by state governors and fleeced without the helpless and hamstrung LGs being able to raise a finger.
The statement added: “This is not rocket science. That refusal by state governors to remit to the LGs was the ugly mischief the Apex Court judgment sought to cure; and it did so perfectly, loud and clear, in my own humble opinion.

“Inter alia, the Apex Court had declared emphatically that, “by virtue of section 162(3) and (5) of the Constitution of Nigeria, 1999, the amount standing to the credit of LGs in the Federation Account shall be distributed to them and be paid directly to them”; that “a state, either by itself or Governor or other agencies, has no power to keep, control, manage, or disburse in any manner, allocations from the Federation Account to LGs”.
“The Apex Court also granted injunctive orders restraining “Governors and their agents, officials or privies from tampering with funds meant for the LGs in the Federation Account” ; and further ordered  “immediate compliance by the states, through their appointed officials and public officers with the terms of the judgment and orders”.
“The apex court further ordered the “Federation or Federal Government of Nigeria through its relevant officials, to forthwith commence the direct payment to each LG of the amount standing to the credit of each of them in the Federation Account”.

“The content, terms and directives contained in this judgement, are in my humble opinion, very straight forward, unambiguous and are as clear and clean as a whistle.

“All parties concerned – FG, states and LGAs – must therefore obey and enforce this judgement immediately. There is no option.”