ABDULLAHI M. INUWA v. GOVERNOR OF GOMBE STATE & ORS
(2019)LCN/12794(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 5th day of March, 2019
CA/J/273/2017
RATIO
COURT AND PROCEDURE: WHETHER IT IS FOR THE JUDGE TO EXPAND THE CONSTITUTION
“A Judge can expound but not expand the law. That is to say that it is not the function of the judge to amend the Constitution. See the case of A. G. FEDERATION & 2 ORS V. ABUBAKAR & 3ORS (2007) 4 SC. (PT. 11) 62 at 245. The foregoing will lead me to the principle of separation of power. It is trite that the concept of separation of power is that none of the three arms of Government under the Constitution, i.e. the Executive, legislature and the judiciary should encroach into or usurp the powers of the other. See AMADI V. NNPC (2000) 9 SC (PT.1) 66 at 94, ATTORNEY GENERAL OF ABIA STATE & ORS V. ATTORNEY GENERAL OF THE FEDERATION (2003) 4 NWLR (PT. 809) 124.” PER MUDASHIRU NASIRU ONIYANGI, J.C.A.
INTERPRETATION: MEANING OF ‘FEES’
“‘Fees’ is defined at Pages 614 Black’s Law Dictionary as ‘a charge fixed by law for the services of a public officer for the use of privileges under the control of Government’ ‘Fine’ is a penalty imposed in financial terms. Therefore, all payments made in Courts are revenue due to the State ‘Fiscal’ is defined at page 636 of Black’s Law Dictionary 16th Edition as ‘In general having to do with financial matters i.e, money, taxes, public or private revenue belonging to the fiscal or public treasure. Relating to accounts or the management of revenue of or pertaining to public finances of a Government or private business’…Therefore, fiscal polices on how the revenue due to Government would be collected and accounted for, from whatever source, it contemplated to be within the powers of the body vested with the power of collection and accounting for those moneys. It cannot be part of rules of Court procedures. In the con of this suit, it fell within the realm of revenue collection and accounting for same and therefore within the powers and authority of the defendants to make fiscal policies thereon. I however have no doubt at all that payment of fees, fines etc in Court is part of the procedure of initiating actions in Court and defraying other cost including fines but the process of payment remains with the realm of revenue collected and accounting.” PER MUDASHIRU NASIRU ONIYANGI, J.C.A.
JUSTICES
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
ABDULLAHI M. INUWA Appellant(s)
AND
1. GOVERNOR OF GOMBE STATE
2. GOMBE STATE BOARD OF INTERNAL
3. ATTORNEY GENERAL, GOMBE STATE Respondent(s)
MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment):
The Appellant Abdullahi M. Inuwa a private legal practitioner, human and environmental right activist of A. M. Inuwa and Co as plaintiff initiated the action at the High Court of Justice Gombe, Gombe State by way of an Originating summons against the Respondents as Defendants seeking for the determination of the following questions:
1) Whether payment of fees and fines as well as other costs and or payments for probate, all in the Court are procedures in the commencement of a matter, or case and satisfaction of the penalty respectively as well as procedural requirement for probate.
2) Whether executive directive by the Governor of Gombe State which required for all payments of fees, fines and other costs or payments for probate e.t.c. be made at the bank into Account(s) opened by the Respondents offend the provision of Sections 274, 279 of the 1999 Constitution of the Federal Republic of Nigeria as amended, Section 116 (1) of the High Court Laws, Section 24 (a) (i) (ii) and (iii) of the Sharia Court of Appeal law, Section 89 of the district Court law and Section 64 of the area Court law.
3) Whether by the provisions of Section 274, 279 of the Constitution of Federal Republic of Nigeria 1999 as amended, Sections 166 (1) of the High Court law, Section 24(a)(i)(ii) and (iii) of the Sharia Court of Appeal law, Section 89 of the district Court law and Section 64 of the area Court law, the Respondents unilaterally can make Rules for any or all Courts in Gombe.
4) Whether the directives of the 1st Respondent for payment of fees, fine and all other costs or payment for probate, e.t.c. violates the doctrine of covering the field as enshrined in Section 5(2)(a)(b) and 6(2), 6(a), (b) of the 1999 Constitution.
RELIEFS SOUGHT:
1) A DECLARATION of this Hon. Court that the directives by the 1st Defendant to pay any fees, fines, penalties and other payment into the 2nd Defendant Account NO. 0002277964 with Access Bank PLC and or any other Bank is unconstitutional ultra vires, null and void and therefore, lacking any legal basis whatsoever.
2) A DECLARATION that the executive directive by the 1st Respondent to pay all fees, fines, penalties and payment into Access Bank Plc Account No. 0003277964 and or any other Account is an attack against the independence of Judiciary hence unconstitutional, illegal and therefore, null and void.
3) AN ORDER of the Hon. Court directing that all payment of filing fees, fines, penalties, e.t.c. should be made in the Court registry (the way it used to be before the 1st Defendant’s directives) or as appropriate rules may be made by the chief Judge and the Grand Khadi Gombe state.
4) AN ORDER of this Hon. Court directing the Defendants, their servants, agents, staff or any person that may act on their behalf or instructions to decease and refrain from directing or receiving any payment with respect to any filing fee, fine, penalty or levies e.t.c. that emanate or arise from any judicial proceedings probate and any other matters connected thereto.
5) A letter of apology to the Chief Judge and Grand Khadi of High Court of Justice and Sharia Court of Appeal of Gombe State respectively, as well as the corresponding announcement to the people of Gombe State.
6) N50,000,000.00 general damages jointly and severally against the Defendants
7) N500,000.00 as cost of this action.
The summons was accompanied with an affidavit of 18 paragraphs, Introduction and Statement of facts. Upon the service of the foregoing processes on the Defendants, a memorandum of appearance dated 20th day of March 2017 and a Counter affidavit of 7 paragraphs with a written address was field. The Applicant in response filed a further and better affidavit of 22 paragraphs, a statement of facts and three annexures marked Exhibit A1, A2 and A3 respectively. The Defendant also filed a further Counter affidavit of six paragraphs with three annexures marked Exhibit Ministry of Justice 1, Ministry of Justice 2 and Ministry of Justice 3 respectively and a written address. With the forgoing processes filed by respective party issues were joined.
Counsel adopted their respective processes. The Plaintiff Appellant urged the trial Court to resolve all the issues in his favour and grant all the reliefs sought while the Defendant Respondent urged the Court to hold that the Plaintiff’s action is frivolous and lacking in merit and to dismiss same.
The gist of the basis of the action by the Appellant as Plaintiff before the trial Court as can be gleaned from the Record of Appeal is that the 1st Defendant (Governor of Gombe State) issued a directive that all payments to the Government including Court fees, fines and other levies be made into the Government’s designated Bank Accounts of the second Defendant (GOMBE STATE BOARD OF INTERNAL REVENUE) a Government parastatal charged with the responsibilities for assessment, collection and management of tax in Gombe State. The Plaintiff being a legal practitioner claimed that he is adversely affected by the said executive directives. He described the directive as an infraction on the Constitution and some existing laws, the powers of the Chief Judge and the Grand Khadi to make Rules of procedure for their respective Court. Further to this, the plaintiff expressed his grievance against the directives of the 1st Defendant and described it as that which affected the right of Citizens to access justice and his right as a legal practitioner in the State. The Defendants contended in the contrary that it is the function of the 2nd Defendant to administer levies and all revenue accruing to the State from all ministries, Government Agencies and Departments.
It is also their contention that filing fees, Court fees, and all other payments made at the Courts have all along being paid into the 2nd Defendant?s Account designated by the 1st Defendant. Therefore, the payment through point of purchase (POS) has being introduced as another means of payment in addition to the Bank payment hitherto operated.
Consequent upon the adoption of their respective processes, the learned trial Judge in his considered judgment resolved all the questions that arose in the Originating Summons against the plaintiff Appellant and dismissed the action.
Dissatisfied with the outcome of the trial, hence this appeal which is initiated vide the notice of Appeal filed on the 16th day of June, 2017 containing five grounds. They are:
1) The trial High Court misconceived the Appellant?s grievance before it, as the Court delved into control of consolidated revenue fund, as opposed to powers of the judiciary (vested upon the Hon. Chief Judge and that of the Hon. Grand Khadi of the State) to collect fees, fine and penalty after assessment in the regulation of practice and procedure within their respective scope and powers.
2) The trial Court did not differentiate the independence of the judiciary from the Executive powers, in the administration of Laws and Polices in the state.
3) The Trial High Court failure to draw a distinctive margin between rules of procedure in the judiciary and fiscal Policy occasioned a miscarriage of justice upon the Appellant.
4) The trial Court did not effectively and justly interpreted all issues the Court was called upon to interpret and therefore, refrain from making pronouncement with respect to Area and District Courts respectively thereby making the decision unfair.
5) The judgment of the lower Court is unreasonable, unwarranted and cannot be supported, having regards to the weight of evidence.
RELIEF SOUGHT:
1) To allow the Appeal.
2) Set aside the judgment of the Gombe State High Court in Suit: GM/4/17 delivered on 2nd June, 2017 and substitute same by granting all relieves sought before the trial Court.
Consequent upon the transmission of the Record of appeal on 14th August, 2017, Counsel filed and exchanged their brief of argument.
The Appellant’s brief filed on 13th February, 2018 was deemed as properly filed and served on the same date. While the Respondent’s brief filed on 27th June, 2018 was deemed as properly filed and served on 1/11/2018. Counsel adopted their respective brief on 15th January, 2019
In the Appellants brief of argument, the following issues were distilled for the determination of this Appeal.
1) Whether payment of fees, fines, penalties and other fees in the Court?s registry by or for litigants and other applicants is a matter of Policy to be made by Executive Arm of Government as opposed to procedure to be made by and in the judiciary.
2) Whether the trial Court have fairly and reasonably considered and decided all issues, the Court was called upon to interpret.
In the same vein, the Respondent in his adopted brief of argument formulated the following issues for determination:
a) Whether the lower Court has adequately considered and resolved all issues formulated by the Appellant? (Grounds 2,4 and 5).
b) Whether the lower Court was right to have held that the process of payment and accounting for fees at the registry is within the powers of the 2nd Respondent (Grounds 1 and 3).
I have carefully read all the processes filed before the trial Court and those in this Court. In my view, the respective issues are same in substance. Only the wordings differ. Therefore they are designed to obtain the same goal. On that note I will adopt the issues formulated by the Appellant for the determination of this Appeal.
ISSUES ONE
Whether payment of fees, fines, penalties and other fees in the Court?s registry by or for litigants and other applicants is a matter of Policy to be made by executive Arm of Government as opposed to procedure to be made by and in the judiciary.
The learned Counsel representing the Appellant argued that the provision of Sections 274 and 279 of the 1999 Constitution of the Federal Republic of Nigeria as amended vested power on the Hon. Chief judge and the Hon. Grand Khadi respectively to make laws for regulating the practice and procedure in the High Court and the Sharia Court of Appeal respectively. The power he submitted is subject to the laws made by the house of Assembly of a State. He sought assistance in the Halsbury’s Laws of England, 4th Edition Vol. 37, for the function of practice and procedure and juxtaposed it with the interpretation of Section 258 of the 1999 Constitution which he said is similar to Section 274 of the 1999 Constitution of the Federal Republic of Nigeria. He also cited the case of MC HARG V. UNIVERSAL STOCK EXCHANGE LTD (1985) 2 Q B. B. 8 on how the words practice and procedure can be used interchangeably. He submitted that by virtue of Section 116 (a) of the High Court Laws, the Chief Judge with the approval of the Governor may make rules of Court for carrying this law into effect, and in particular for all or any of the following matters:
Regulating the pleading practice and procedure of the Court, including all matters connected with the forms to be used and the fees payable.
Giving meaning to the general intendment of Section 274 and 279 of the 1999 Constitution of the Federal Republic of Nigeria, Section 116 (a) of the High Court law and Section 24 of the Sharia Court of Appeal, he contended that the Executive Governor has not been given the powers to make laws but power to approve laws made by the Chief Judge or the Ground Khadi.
He argued that the wordings of Section 116 (a) i.e. ‘regulating the practice and procedure of the Court, including all (not specific) matters connected with ‘fees to be parable’ He submitted that it is the intendiment of the legislation to include who and where to receive payment of fees, fines e.t.c. are all within the scope and powers of the Hon. Chief Judge. He argued further that the wordings of the law are not restrictive but boarder. He said, it is trite that where a statute defines a words simply as ‘means so and so,’ the definition is meant to be explanatory and prima-facie restrictive, but where the word is so defined to ‘includes so and so’ the definition is clearly intended to be extensive. He rely on the case of RABIU V. STATE VOL 2 ACLC page 294 (a) 309 paragraph D-E.
He argued further that Section 24 of the Sharia Court of Appeal law, Cap 145 laws of Bauchi State, applicable in Gombe State also expressly and unequivocally vested upon the Hon. Grand Khadi, in line with the provision of Section 279 of the Constitution, the power to regulate the practice and procedure, including any step to be taken in any proceedings before the Sharia Court of Appeal. The power to make the rule is and remained that of the Hon. Chief Judge and the Hon. Grand Khadi.
He added that Section 116 (i) (e) empower the Hon. Chief Judge by rule to define the duties of the staff of the Court.
It is therefore, not for the Defendant to take away such or any duty. He contended that the law is trite that the executives have nothing to do with the assessment, mode, where and how to make payment of Court process or fine e.t.c. The executive are concerned with the how much was collected and remitted to them. The executive may deal with the Registry under Section 5 (2) of the Audit Law but not the litigants. He argued that Section 6 of the 1999 Constitution of the Federal Republic of Nigeria vest judicial power of the Federation in Courts while Section 5 of the same Constitution vest the executive power of the Federation and States in the President and Governors respectively. Issue of separation of power is very clear in the Constitution i.e. the executive legislature and the judiciary at both Federal and State Level.
The executive can not exercise or usurp the powers of the judiciary and vice versa. He cited the case of KAYILI V. YILBUK (2015) 2 SCNJ 281 at P. 309. Ratio 10-20.
He referred to Section 89 (1) (a) (b), (c) and h of the District Court Law, Cap 42 Laws of Bauchi State applicable to Gombe State. Commenting on Section 80 of the same law dealing on appointment of Registrar for the High Court and Section 65 of the Area Court law which also vest power on the Chief Judge to make rules of practice and procedure and Order 26 Rule 1 which requires all area Courts to keep receipt book. He submitted, if any other person other than the clerk of the Area Court keeps any such receipts it will be an outright violation of Section 65 of the Area Court law and constitute an abuse of autonomy of the judiciary and to the extent of colonizing it. He relied on the case of TSOKWA MOTORS V. UBA (2008) ALL FWLR PART 403 P. 1240 at 1250. He submitted that where the words in a legislation or the Constitution are clear, plain and unambiguous, there is no need to give them any other meaning than their ordinary, natural and grammatical construction.
He relied on the case of ADETAYO V. ADEMOLA (2011) 98 LRCN P. 190 at 225 PF. He contended that the constitutional and statutory powers have nothing to do with fiscal policy and consolidated Revenue Fund under Section 120 of the Constitution of the Federal Republic of Nigeria 1999. He contended that the extension of any policy by the Respondents, contravening existing Rules of procedure is an outright violation of constitutional provision for separation of power and incursion on the independence of the judiciary. Further he argued that there is harmony between Section 7, of the Gombe State Board of Internal Revenue Law and Section 120, 274 and 279 of the 1999 Constitution of the Federal Republic of Nigeria and Section 116 (a) of the High Court Law, Section 24 of the Sharia Court Law, Section 65 of the Area Court law and Section 89 of the District Court Law. He contended that Section 7 (c) empowers the Board to supervise the collection of revenue due to the State. Such collection as it relate to the judiciary will be collected by the Court clerk or any staff of the judiciary so designated and not the executive arm of the Government.
He submitted that since Section 116 (a) and 24 of the High Court and the Sharia Court of Appeal laws respectively as well as Area and District Court laws respectively expressly made provision to that effect, no other arm of Government can make a similar or conflicting Directive. He also examined Section 80 (1), 80 (2), Order xxx 1 of the District Court law and Order 25 Rule 4 of the Area Court Civil Procedure Rules and submit that there is no conflict between and among the laws. He described the laws as part of the pillars, upon which independence and autonomy of Gombe State judiciary is resting.
Relying on the interpretation of the word ‘Policy’ as given in the BLACK’S LAW DICTIONARY 9TH Edition which says:
‘the general principles by which a government is guided in its management of public affairs.’
He submitted that policy is not a unilateral directive or opinion of the head of Government but a living guide, written, gazetted and kept in the Government office, until it is replaced reviewed. He argued that the Court acted in speculation to have held that payment of filing fees, fines penalties are within the realm of policy and such policy have not been brought to the attention of the Court.
The Court did not show how or when it took judicial notice of the alleged policy and in which year such alleged policy was made or came into being. Courts are not bound to speculate. He argued that neither the 1st, 2nd, nor 3rd Respondents have the power to make policy on taxation in Nigeria because the personal Income tax is an act of the National Assembly which empowered states to collect the tax. Therefore the power to make laws and policy with respect to personal income tax is within the powers of the Federal Government.
Finally on this issue, he submitted that it is settled law that Judiciary is independent and the power of making rules for sound administration of justice is and remain within the judiciary but not and never from outside. He added that outside intervention is a threat to the independence of the judiciary and it impedes the smooth realiasation of justice to the litigants as it complicates the effective running of the system. He urged the Court to resolve this issue in favour of the Appellant.
Reacting negatively to the foregoing arguments, the learned Counsel to the Respondents referred to the provisions of Sections 274 and 279 of the Constitution of the Federal Republic of Nigeria 1999, Sections 116 and 24 of the High Court and Sharia Court Law, together with Sections 80 and 89 of the District Court Law, and Section 65 of the Area Court Law and conceded to the fact that they are powers of the Chief Judge and the Grand Khadi of the State to make rule regulating the practice and procedure in their respective Courts, and to make rules of procedure in the lower Courts (Area Court and District/Magistrate Courts). He argued that the provisions of those laws are very clear with regards to the powers of the head of Court in making rules of practice in their respective Courts. He went further to say that the law also empowers the Head of Courts to fix fees payable on every process filed before such Courts. The bone of contention, he argued is whether the said monies payable as filing fees falls within the competence of the Head of Courts to administer and manage.
He submitted that the Constitution of the Federal Republic of Nigeria being the ground norm where all laws derive their source vested on the executive the duty of managing all monies accruing to the state to be paid into the consolidated account. He relied on Section 120 (1) of the Constitution of the Federal Republic of Nigeria 1999 thus:
‘All revenue or other moneys raised or received by a State not being revenue or other moneys payable under this constitution or any Law of a House of Assembly into any other public fund of the State established for a specific purpose shall be paid into and form one consolidated Revenue Fund of the State.’
He contended that the Constitution empowers the Head of Court to make Rules and procedure for their Court together with other Courts. The same law provides how the fees payable in their respective Courts should be dealt with. Hence Section 120 of the Constitution of the Federal Republic of Nigeria mandates the payment of the filing fees into the Consolidated Fund. The Appellants contention that the executive is usurping the powers of judiciary is unfounded. He submitted that the provisions of Section 274 and 279 of the 1999 Constitution of the Federal Republic of Nigeria, Sections 116 and 24 of the High Court and Sharia Court Law, Sections 80 and 89 of the District Court Law, and Section 65 of the Area Court Law did not specify how those fees collected should be dealt with by the Head of Courts. He referred to Section 3 of separation of Accounts (Juary) Law CAP 114, Laws Bauchi State 1991 (Applicable to Gombe State) which he says is very categorical on the position of the Judiciary in term of handling fees Payable in Courts.
It declared the judiciary as self accounting, but limited the financial control of the judiciary to its expenditure and not revenue. The provision reads:
‘The judiciary is hereby declared to be self accounting which expression shall for the avoidance of doubt be limited to control over expenditure and shall not include control over revenue which shall continue to be paid into the consolidated Revenue Fund of the State.’
He submitted that both the Constitution and the State House of Assembly Laws do not vest the judiciary with the responsibility of management and collection of monies payable as filing fees and fines. The agency responsible for such function in the State is the 2nd Respondent (Gombe State Board of Internal Revenue). He argued that Section 7 of the Gombe State Board of Internal Revenue Law 1997 vested powers of administration, management, collection, supervision, accounting fees and taxes in all ministries, department and agencies of Government in the Gombe State Board of Internal Revenue. He submitted that the effect of the combined provisions of Section 120 of the Constitution of the Federal Republic of Nigeria 1999, Section 3, separation of Accounts (Judiciary) Law, CAP 114, Laws of Bauchi State 1991 ( applicable to Gombe state) and Section 7 Gombe State Board of Internal Revenue Law 1997 has ousted the judiciary of the control over the filing fees and fines payable in Court. He urged the Court to resolve this issue against the Appellant. Conceding to the fact that the Chief Judge and Grand Khadi have the powers to make rules of Court, but they don’t have the powers to manage the fees payable in their respective Courts.
Having carefully read and considered the argument by respective counsel for and against in respect of this issue, the provisions of Section 274, 279 and 120 of the Constitution of the Federal Republic of Nigeria 1999, Section 116 and 24 of the High Court and Sharia Court Law Gombe State, Section 80 and 89 of the District Court Law and Section 65 of the Area Court law and coupled with Section 3 of the Separation of Accounts (Judiciary) Law CAP 114, Laws of Bauchi State 1991 (applicable to Gombe State) and comparing them with the agitation, predicament and complaint of the Appellant leading to the action at the trial Court and this Appeal, it is my humble view that the question to which answer should be provided is whether or not it is within the competence of the Head of Courts (Chief Judge and Grand Khadi of Gombe State) to administer and manage monies payable as filing fees and fines.
Parties are at one on the power conferred on the Chief Judge and the Grand Khadi of a State to make rules regulating the practice and procedure of their respective Court. Where they differ is on the contention of the Appellant that since the Head of the Court makes the rules even though he described it as laws in his argument which I believe is a misconception because the source of the authority of the Heads of Courts to so act did not say they can make laws but Rules regulating practice and procedure. Having said this, it is the view of the Appellant that, since they are constitutionally conferred with the vires to make rule of practice and procedure for their respective Courts and also prescribed the fees to be paid in filing of various processes and designate staff who collects such fees and fines, it is not the business of the 1st Respondent to dictate where and how to pay such fine but the responsibility of the head of Court. In simple terms what the Appellant is contending is that, it is not the business of the 1st Respondent to dictate how and where to pay fees and fines in the judiciary but the responsibility of the Chief Judge to post and assign responsibilities to their respective staff. At this stage, I consider it appropriate to reproduce Sections 274 and 279 of the Constitution of the Federal Republic of Nigeria 1999.
SECTION 274
“Subject to the provisions of any law made by the State House of Assembly of a State, the Chief Judge of a State may make rules for regulating the practice and procedure of the High Court of the State.”
SECTION 279
Subject to the provision of any law made by the House of Assembly of the State, the Grand Khadi of the Sharia Court of Appeal of the State may make rules regulating the practice and procedure of the Sharia Court of appeal.”
It is clear as crystal that the forgoing two provisions unequivocally vest power on the aforementioned head of Courts i.e. the Chief Judge and Grand Khadi of a State to make rules regulating the practices and procedure in their respective Court. Nothing should be read into these two provisions other than to say that they have power to make Rules of practice and procedure and not laws for their respective Court. It is trite that the general rule for construing a statute has been stated by the apex Court in the land and this Court that where words of a statute are clear the Court shall give effect to their literal meaning and that it is only when the literal meaning may result in ambiguity or injustice that the Court may seek internal aid within the body of the statute itself or external aid from statute that are in pari materia in order to resolve the ambiguity or avoid doing injustice see the old case of CLAUDE NABHAN V. GEORGE NABHAN (1967) ALL N.L.R. 47 and MOBIL OIL (NIGERIA) LIMITED V. FEDERAL BOARD OF INLAND REVENUE (1977) 3 SC 53 at 54, CALABAR CENTRAL CO-OPERATIVE THRIFT AND CREDIT SOCIETY LTD & 2 ORS V. BASSEY EBONG EKPO (SUBSTITUTED by EDET BASSEY EKPO- (2008) 6 NWLR (PT 1083) 362.
The same is the position under Sections 116 and 24 of the High Court and Sharia Court of Appeal Law, so also Sections 80 and 89 of the District Court law and Section 65 of the Area Court Law. That is to say that power is conferred on the Chief Judge of a State and the Grand Khadi to make rule of practice and procedure for those Courts. All the forgoing enactments do not confer authority on the Chief judge and Grand Khadi of a State and Gombe State in particular to keep or do otherwise with the fees and fines. Though by the provision of Section 274 and 279 of the Constitution they prescribe the amount to be paid for filing fees of processes.
The question now is who has the right to direct for the custody of the fines and fees which unequivocally constitutes or form part of internally generated Revenue of the State? Reference has to be made to the 1999 Constitution of the Federal Republic of Nigeria again. For these purpose the provision of Section 120 (1) of the 1999 Constitution and Section 3 of the separation of Account (Judiciary) Law, CAP 114, Laws of Bauchi State 1991 (applicable to Gombe State) will be considered. I therefore, consider it apt to reproduce the two provisions. Section 120 (1) of the Constitution of the Federal Republic of Nigeria 1999 provides thus:
“All revenue or other moneys raised or revenue by a State (not being revenue or other moneys payable under the Constitution or any Law of a House of Assembly into any other public fund of the state established for a specific purpose shall be paid into and form one consolidated Revenue fund of the State.”
By the forgoing provision, it is mandatory that all revenue accruing to a State other than money paid to the State for specific purpose shall be paid into the consolidated Revenue Fund Account of the State. It is not in any contest by parties that fees and fines are revenue accruing to a State and in this contest Gombe State. Therefore, it is trite that all fines and fees generated by the judiciary shall be paid into the consolidated Revenue Account of the State. The implication of this is that the judiciary though prescribes the amount payable for various processes and fines as may be ordered by Courts, it has no authority over the Revenue generated other than to pay same into the consolidated Revenue Fund Account of the State and in this instance Gombe State.
The community reading of Section 120 (1) of the Constitution 1999 and Section 3 of the separation of Account Law (Judiciary) 1991 of Bauchi State which is applicable to Gombe State which is clear and unambiguous, is that, the judiciary, i.e. the Chief Judge and Grand Khadi of Gombe State has no authority to retain or keep money generated in their respective Court other than to comply with the directive of the State Government as to the mode of paying same into the consolidated Revenue Fund of the State (Gombe State) I accordingly so hold. Section 3 of the separation of Account (Judiciary) Law, CAP 114, Laws of Bauchi State 1991 (applicable to Gombe State) provides thus:
“The Judiciary is hereby declared to be self accounting which expression shall for the avoidance of doubt be limited to control over expenditure and shall not include control over revenue which shall continue to be paid into the consolidated Revenue Fund of the State.”
By this provision again the issue of Revenue generated by both the High Court, Sharia Court of appeal, Magistrate/District Court and the Area Court are generated on behalf of the State as Revenue accruing to the State and by Section 120 (1) of the Constitution shall be paid into the consolidated Revenue account of the State (Gombe State).
This provision again clearly prescribe the limit of the State judiciary on the policy of self accounting. Section 120 (1) of the 1999 Constitution of the Federal Republic of Nigeria and the separation of Account Law of law 1991 of Bauchi State, applicable to Gombe State are superior laws to the Rules of practice and procedure made pursuant to Section 274 and 279 of the Constitution of the Federal Republic of Nigeria 1999. Since the heads of the Courts have no power to keep such Revenue (fees and fines) generated by its department, it has no option than to bow to the dictate of Section 120 (1) of the Constitution and comply strict sencus with the mode of payment of such revenue as may be prescribed, dictated and directed by the Gombe State Government who is vested with the custody of the consolidated Revenue Account of the State.
It therefore, serves to say that the Gombe State Government has the piper and can dictate the tune.
No wonder, the learned trial Judge in his wisdom concluded as follow: (See pages 74 ? 75 of the Record of Appeal).
“The community reading of the laws has painted a clear picture suggesting that the House of Assembly empowered by Sections 120 of the CFRN 1999 to legislate on matters of Revenue Accruing to the State. In line with that constitutional authority the legislature promulgated a law (as an existing law) which created the 2nd Defendant and empowered it to collect revenue due to the Government including determination on the manner it would collect and account for those monies collected. The CFRN 1999 and the extant laws similarly empowered the Head of Court with authority to make rules for their Courts and declared the judiciary as self accounting. It is to be noted that the self accounting status of the judiciary excludes matters of revenue which by law must be paid into consolidated Revenue fund of the State. The reasonable conclusion in the circumstances will be that while the heads of Court can make Rules of procedure for their Courts, the Defendants have the responsibility to ensure collection and accountings for revenue due to the Government from all sources. ‘Fees’ is defined at Pages 614 Black’s Law Dictionary as ‘a charge fixed by law for the services of a public officer for the use of privileges under the control of Government’ ‘Fine’ is a penalty imposed in financial terms. Therefore, all payments made in Courts are revenue due to the State ‘Fiscal’ is defined at page 636 of Black’s Law Dictionary 16th Edition as ‘In general having to do with financial matters i.e, money, taxes, public or private revenue belonging to the fiscal or public treasure. Relating to accounts or the management of revenue of or pertaining to public finances of a Government or private business’.
Therefore, fiscal polices on how the revenue due to Government would be collected and accounted for, from whatever source, it contemplated to be within the powers of the body vested with the power of collection and accounting for those moneys. It cannot be part of rules of Court procedures. In the con of this suit, it fell within the realm of revenue collection and accounting for same and therefore within the powers and authority of the defendants to make fiscal policies thereon. I however have no doubt at all that payment of fees, fines etc in Court is part of the procedure of initiating actions in Court and defraying other cost including fines but the process of payment remains with the realm of revenue collected and accounting.
In my view, the learned trial Judge properly considered and rightly found and concluded on this issue that the process of payment of revenue generated by the Court into the consolidated Revenue of the State remains within the realm of Revenue collection and accounting and to which the 1st and 2nd Defendant are vested with the vires. I accordingly so hold.
What the Appellant tempted the trial Court to do and which was adequately and intelligently rebuffed is for the trial Court to amend the Constitution and hold that the Chief Judge and the Grand Khadi of Gombe State have the power to design or prescribe the mode and manner of collecting and mode of payment into the consolidated revenue of the State. This is not the function of a Judge.
A Judge can expound but not expand the law. That is to say that it is not the function of the judge to amend the Constitution. See the case of A. G. FEDERATION & 2 ORS V. ABUBAKAR & 3ORS (2007) 4 SC. (PT. 11) 62 at 245. The foregoing will lead me to the principle of separation of power. It is trite that the concept of separation of power is that none of the three arms of Government under the Constitution, i.e. the Executive, legislature and the judiciary should encroach into or usurp the powers of the other. See AMADI V. NNPC (2000) 9 SC (PT.1) 66 at 94, ATTORNEY GENERAL OF ABIA STATE & ORS V. ATTORNEY GENERAL OF THE FEDERATION (2003) 4 NWLR (PT. 809) 124.
In the light of the foregoing, I resolve this issue against the Appellant.
ISSUE 2
“Whether the trial Court have fairly and reasonably considered and decided all the issues the Court was called upon to interpret.”
My understanding of this issue is that it queries whether or not the learned trial judge properly evaluated the available evidence before the Court. The Appellant’s contention under this issue is that the learned trial judge did not properly consider the evidence before it, before coming into the finding and conclusion reached. The Respondent argued in the contrary.
In the case of DAGACI OF DERE & ORS V. DAGACI OF EBWA & ORS (2006) SC (PT.1) 87 at 119. The Apex Court per Oguntade JSC as he then was, described evaluation of Evidence as follows. Hear the Law lord:
“A trial Court before which parties to a dispute have led evidence has the duty to determine which of the versions to accept of the evidence called. Obviously, it does this based on the advantage which it has of seeing and hearing the witnesses testify. An appellate Court has not that advantage. This explains why an appellate Court does not and should not readily disturb the findings of fact made by the Court of trial.”
Bearing the foregoing in mind and my finding and conclusion on issue one where in I brought to bear the review, finding and conclusion of the learned trial Judge, I cannot but disagree with the learned Counsel representing the Appellant that the learned trial judge did not properly evaluate the processes, the affidavit evidence before it inclusive, before reaching the conclusion there at. I adopt my finding and conclusion in issue one and apply same to this issue and conclude that the learned trial judge properly and adequately evaluated all the available affidavit evidence placed before the Court in coming to the conclusion reached.
I resolve this issue also against the Appellant.
Therefore, I find no basis for disturbing the lower Court?s finding and conclusion. There is no substance in this appeal and I accordingly dismiss it in it’s entirely.
The Judgment of the trial Court in Suit number GM/44/2017 rendered on 1st June, 2017 Coram Hon. Justice A. Jauro be and is hereby affirmed.
Parties to bear their Cost.
UCHECHUKWU ONYEMENAM, J.C.A.: I have had the benefit of reading in draft the lead judgment just delivered by my learned brother MUDASHIRU NASIRU ONIYANGI, JCA. I agree with his reasoning and conclusion reached thereat in dismissing the appeal in its entirety.
I affirm the judgment of the trial Court delivered on 1st June, 2017 by A. Jauro, J. in Suit-No. GM/44/2017.
TANI YUSUF HASSAN, J.C.A.: I had the opportunity of reading in draft the lead judgment of my learned brother,
MUDASHIRU NASIRU ONIYANGI, JCA. I found myself in full agreement with my learned brother in dismissing the appeal for lacking in merit and affirming the judgment of the lower Court.
I abide by the order as to costs.
Appearances:
N. A. Dashe, Esq. holding the brief of Barde, Esq.For Appellant(s)
Moh’d Isah Usman with him, Jesicah S. David, Dabiru Adamu and Alhasan Mu’azuFor Respondent(s)
