Of Executive Order and Supreme Court Judgement

Femi falana

There is a raging controversy as to who has the responsibility to implement the famous judgment of the Supreme Court in the case of A.G. Federation v. A.G Abia & Ors (2024)17, NWLR, (Pt 1966)1, where the Supreme Court ordered that the revenues, allocations, and funds standing to the credit of Local Government Councils be paid directly to the Local Government Councils. The Federal Government prayed for the Order and it was granted despite the stiff opposition from the State Governments. It is over a year ago that the Judgment was delivered.

Just recently, the President issued a warning to the State Governments to the effect that if they do not comply with the Order of the Supreme Court, he will issue an Executive Order to compel compliance because in his words: “I have the knife and the yam”.

The germane question is whose duty is it to disburse the money to the Local Governments? Who has custody of the money? To which tier of the Government was the Judgment of the Supreme Court directed? Without belabouring the arguments, the Supreme Court in the recent case of A.G Osun State v. A.G of the Federation (SC/CV/773/2025, delivered on 5th December 2025, well seem to have provided the necessary answers.

The brief gist of the case is whether the Federal Government was right to have withheld the funds due to the 30 Local Governments in Osun State. In the course of the proceeding, the Federal Government raised the issue of contempt against Osun State Government in the following words:

i.  “At paragraph 17 of its affidavit, the plaintiff confessed that Osun State had, from July 2024 till February 2025, been collecting and receiving funds due to the Local Governments of Osun State, contrary to relief 13 granted by the Supreme Court in A.G. Federation v. A.G Abia & others reported in 2024 17 NWLR (Pt 1966)1, delivered in July 2024, which barred the States from collecting and receiving funds due to the Local Government.

ii. That the plaintiff is therefore not entitled to be heard, having by its own showing committed contempt of this court by flouting and disobeying the Judgment of this court in the aforesaid case.”

In resolving the issue against the Federal Government, the Supreme Court made some profound findings which will assist in addressing the issue under discussion.

 The highest court affirms the decision of the Supreme Court in Part 1966 of NWLR remains a valid and binding Judgment of the Court which must be enforced by all authorities and persons pursuant to Section 287, (1) of the Constitution of the Federal Republic of Nigeria (as amended). In the lead Judgment, Idris J.S.C on page 40 of his Judgment, posed the question thus:

“The pertinent question to be determined of this stage is: who between the parties is in contempt of this court’s judgment in A.G. Federation v. A.G. Abia, (supra).”

Once a Judgment is delivered by a Court of competent jurisdiction, it becomes incumbent upon the party bound by it to comply with and enforce the said Judgment.”

And on page 42, he went further to add as follows:

“There is no credible or satisfactory evidence before this court showing that the defendant (FGN), has fully implemented or completed the requisite modalities to give effect to this court’s judgment in A.G. Federation v. A.G. Abia, (supra)” (emphasis supplied)

On page 44, his lordship found as follows:

“The defendant has failed to take necessary steps to ensure that the judgment of this court is obeyed.

I must also emphasise that the defendant hands are not clean, but soiled, and he cannot be allowed to drink from fountain of justice since he who comes to equity must come with clean hands and he who seeks equity must do equity.”

Further on page 45, his lorship found as follows:

“In the circumstance, it is evident that the defendant has failed to take necessary steps to give full effect to this court’s judgment in A.G. Federation v. A.G. Abia (supra)

The defendant, whose own conduct demonstrates noncompliance with the judgment, cannot be permitted to profit from his failure.”

And before he dropped his pen, his lorship had this to say.

“Before I conclude, it is pertinent to issue a stern admonition to the Federation. This Court’s judgment in A.G. Federation vs A.G. Abia State & Ors (supra) remains a subsisting and binding order of this court. As the executive arm of government, the Federation is under a constitutional and legal duty to give full and faithful effect to the directives of this court. It is imperative that the Federation ensure strict and immediate compliance with the terms of that judgment, without evasion, delay, or partial performance.

In particular, the Federation is hereby reminded that it is bound to remit in full and without further obstruction, all outstanding statutory allocations due to all democratically elected local government councils across Nigeria. Any failure to comply with the orders of this court will constitute a deliberate disregard of the rule of law. The Federation is enjoined to take immediate and effective steps to discharge its constitutional and statutory responsibilities in accordance with this court’s directives in A.G. Federation vs A.G. Abia States & Ors (supra), thereby reinforcing the principles of democratic governance, ensuring accountability, and upholding the supremacy and sanctity of the Constitution.” (emphasis supplied)

And in his contribution on the point, (not the merit of the case), his lordship Agim J.S.C agreed with the lead Judgment on the point and reasoned as follows:

“It is the defendant’s disobedience of the judgment it sought for and obtained from this court that set in motion the unavoidable receipt and use of the funds by the plaintiff to continue the running of local government.

The defendant’s objection is unfair and inequitable. To sustain it would enable the defendant’s benefit from its primary disobedience.”

The above quotes from the emminent Jurists clearly provide answers to the posers above. It may be safe to infer that the President does not need any executive Order to implement the Judgment of the Supreme Court delivered since July 2024. The Jurists are somewhat displeased with the Federal Government that it has refused to implement an Order which it sought for and obtained from the Court. It can be discouraging and in future, the Supreme Court may be reluctant to urgently intervene with the repulsion that their reasoning or Order may be diluted by political consideration. It is instructive to note that my noble lord Justice Agim who wrote the judgment of the court in part 1966 dissented in A.G. Osun v. A.G. Federation.

SOME DEVELOPMENTS

sometimes in January 2025, almost all the news media reported that all the 774 Local Government Councils would open dedicated account with the Central Bank of Nigeria for the direct disbursement to them from the Federation Account.  The then National President of the Association of Local Governments (ALGON) one Mr. Bello Lawal Yandaki was reported to have said that the opening of the account is critical to the implementation of the Supreme Court Ruling. He also said that the apex Bank was waiting for the Federal Government directive on the opening of the account. This report was carried by the Nation’s Newspaper of January 20, 2025. There was also a report that Federal Government had directed all the 36 states to open dedicated account with Central Bank of Nigeria for each Local Government Area. It was reported that the directive was contained in a Circular issued by the Accountant General of the Federation.

It will seem very clear that the Federal Government itself is aware of its critical role in implementing the judgment it prayed for and obtained. What then went amiss? This is not covered by this paper. Perhaps the Political Scientists or Analysts will do better justice to that aspect.

But then, what is an Executive Order? The term will appear to be a contradiction in terms if it is broken down into simple grammar. There are normally three arms of government to wit: Executive, Legislature and Judiciary. While the legislature makes the laws, the Executive is saddled with the implementation, the Judiciary interprets and in the process gives Orders. Thus, the word Order has been defined in the Black’s Law Dictionary as follows:

i.  “A command, Discretion, or Instruction.

ii.  A written discretion or command delivered by a Court or Judge. The word generally embraces final decrees as well as interlocutory direction or commands.”

From the above, it is clear that the word “Order” is a term closely associated with the Judiciary and not the Executive. The idea of an Executive Order will therefore seem to be an anomaly whose roots can be traced to the United States of America where the excesses contained in such Orders are often struck down by the Courts. The idea of an Executive Order will appear to be a grave assault on the hallowed principle/doctrine of separation of power which is a major plank on which our Constitution stands among others.

Separation of power is a necessary antidote against authoritarianism and is the life blood for the Rule of Law in a democracy. The Executive should never be allowed to have the idea of having the power to usurp the Roles of the Judiciary or Legislature. The idea of an Executive Order will appear to be a step towards usurping the Roles of the Courts or that of the Parliament.

Our great scholars are seriously tasked to research more into this area in modern governance before the anomaly becomes the norm.

The Context of this Case.

There is no ambiguity in the decision of the Supreme Court which has imposed a duty on the Federal Government to implement same by paying directly to the Local Governments. The judgment does not allow the Federal Government to route the money through the State Governments to warrant calling on the State Government to do the right thing.

The Federal Government owes a duty to our Constitution and the Supreme Court to carry out the Order of the highest Court of the land. It is more compelling because it is the Federal Government that prayed for the Order and the same was granted in record time. There is no need for any Executive Order to implement the judgment of the Supreme Court. There can only be a judicial review of the administrative/ executive action.  It is never the case that there can be an executive review of judicial decisions/orders. Compliance is the only way to go.

Executive Orders

Until the advent of General Buhari regime, the use of Executive Order was unknown in Nigeria. Both the General and his vice (as acting President) issued some Executive Orders. In particular Executive Order 10 was issued by General Buhari. The said Order was nullified by the Supreme Court. The executive order was issued with regard to the financial autonomy of State Judiciary and Legislature. Upon a challenge by the Governors, the Supreme Court nullified the Order on the ground that it is unconstitutional and illegal. Their reasoning is to the effect that the 1999 Constitution already expressly spells out the responsibility of the States and the Federal Government.

By parity of reasoning, since the Supreme Court has ruled that the Federal Government should pay directly to the Local Governments, of what use is an Executive Order? Any such Order will not be any different from Buhari Order 10 which sought to implement the provision of the Constitution. Order 10 was struck down. The Supreme Court A.G. Abia v. A.G. Federation (2022) 16 NWLR 205 Pg 511to 513 paras H-B held as follows:

“The executive powers of the Federation, as vested in the President of Federal Republic of Nigeria by Section 5(1)(b) of the Constitution of Federal Republic of Nigeria 1999 (as amended), extend to the execution and maintenance of the Constitution, all laws made by the National Assembly and to all matters in respect to which the National Assembly has, for the time being, power to made laws. The executive powers of the President do not extend to usurping the executive powers or functions of the Governor of a State as vested by section 5(2)(b) of the Constitution. The Constitution vests in the President no powers and control over public funds of the State. Therefore, when the President, either by act of aggrandizement or otherwise, exercises powers not vested in him by the Constitution or Statute; he acts ultra vires. The ultra vires doctrine, in other words, is the rule against the excess or abuse of power. In instant case, the promulgation of the Executive Order 00-10 of 2020 by the President of Federal Republic of Nigeria in authorizing the Accountant General of the Federation to, by the Order and such other Orders, regulations or guildlines as may be issued by the Attorney General of the Federation and Minister of Justice, deduct 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 of the House of Assembly of the State and Judiciary guaranteed by section 121(3) of the Constitution of Federal Republic of Nigeria 1999 (as amended) and to ensure compliance with same, was ultra vires the powers of the president.”

What really is an Executive Order?

It is not a feature of Parliamentary System. It is more prominent in the American system. There have been a series of definition and ambit of the concept. While some have argued that Executive Orders have the force of law, others have contended that such raises a problem for the Rule of Law. It has been submitted that with the Executive Order, the Executive may be usurping the role of the Legislature which will constitute a gross violation of the doctrine of Separation of Powers hence violation of the Rule of law. It has been argued further that if an Executive Order has a legislative effect, this will amount to circumventing the clear process of law-making in the Constitution. It will vest on the President additional power that tilts the delicate balance in the power dynamics of the constitutional democracy, especially one with a written Constitution like Nigeria. Unlimited power is an anathema and incompatible with a democracy as a form of government most especially with a written Constitution.

The Constitution is often supreme as is our case in Nigeria. The supremacy clause has been utilized to strike down some Executive Orders in the United States. Notwithstanding, Executive Orders can have a good use when it is utilized to prioritize the commitment of the Executive branch of government as can be seen in the number of Executive Order by President Tinubu on oil and gas sector, that is, Oil and Gas Companies (Tax Incentive, Exemption, Remission Etc.) Order 2024. Executive Orders can be used to fill in the gaps in legislation creating executive agencies so as to help align the broad agency mandates with the presidential priority.

Save for the foregoing, especially against the background of Section 287(1) of the 1999 Constitution, there is no room for the application of an Executive Order to compel the State Government to do anything with regards to the Relief prayed for and granted. The Order, in plain language, directs the Federal Government to pay directly to the Local Governments and not to route the funds through the State Governments. Any Executive Order which purports to ascribe any ambiguity to the clear language employed by the Supreme Court will be rejected. The warning has been given in the recent case of A.G. Osun v. A.G. Federation.