has been a lot of partisan rowdiness amongst Nigerians
following the President’s withdrawal of $496 million from the
Excess Crude Account, without prior approval of the National Assembly or
appropriation. The primary issue is whether or not President Buhari had acted
ultra vires and in the process violated the tenets of the Constitution?


According to Investopedia, “Excess Crude Account
is a Nigerian government account used to save oil revenues above a base amount
derived from a defined benchmark price”.

The Excess Crude Account was
established in 2004 during the President Olusegun Obasanjo’s administration,
and its objective is primarily to protect planned budgets against shortfalls
due to volatile crude oil prices. By delinking government expenditures from oil
revenues, the Excess Crude Account aims to insulate the Nigerian economy from
external shocks. It also seeks to protect public expenditure from being
patterned on the boom and bust cycle of the international oil market.

controversies steered up as President Buhari approved the withdrawal of $462
million from the Excess Crude Account (ECA) to the United States for the
procurement of 12 Super Tucano fighter jets(aircrafts) to fight insecurity in
the country without prior approval of the National Assembly.

Presidency held that a letter was sent to the National Assembly on 13th
April 2018, stating that, the U.S. government had given a payment deadline for
the aircraft purchase, hence, the need for the hasty approval and payment and
also that   the money be included in the
2018 Appropriation Bill/budget which is yet to be passed by the National
Assembly. It was also submitted that the decision of the President was also
informed on the ground that there was an earlier resolution passed to that
effect by the state Governors at NEC meeting held on 14th December
2017 that up to $1billion from the Excess Crude Account may be utilized to
address the security emergencies in the country.


There has been lot of debates on this
debacle as to the legality of the Withdrawal of $496 million by the President
without approval from the National Assembly. From the foregoing, the fact that
the President had given an anticipatory approval for the withdrawal of the cash
and paid before a public announcement of the approval shows demonstrable
evidence of crass Executive Lawlessness which has hindered the progress of our
democracy over the years. This act by the President is an utter disregard for
the constitution of Federal Republic of Nigeria thus an impeachable offence as
held by Senator Chukwuka Utazi who prayed the senate for Section 143 of the Constitution
to be invoked so as to initiate the impeachment process of the President.

Under Sections 80 (2), (3) and (4) of
the 1999 Constitution, which states that:

“(2) No moneys
shall be withdrawn from the Consolidated Revenue Fund of the Federation except
to meet expenditure that is charged upon the fund by the Constitution or where
the issue of those moneys has been authorized by an Appropriation Act,
Supplementary Appropriation Act or an Act passed in pursuance of Section 81 of
this Constitution.

“(3) No amounts of money shall be
withdrawn from any public fund of the Federation, other than the Consolidated
Revenue Fund of the Federation unless the issue of those amounts of money has
been authorized by an Act of the National Assembly.

“(4) No amounts of money shall be
withdrawn from the Consolidated Revenue Fund or any other public fund of the
Federation, except in the manner prescribed by the National Assembly,

inherent role of the National Assembly is clarified i.e., the government is not
allowed by the Constitution to spend any money that has not been duly
appropriated for or without due authorization. In the letter written to the
National Assembly, two pertinent questions should be considered; the first is
that if the money expended is included in the 2018 Appropriation Budget, does
it not legalize the unconstitutional act of Mr. President retrospectively? On
the other hand, in the said letter informing the National Assembly of its
expenditure, there was no mention of any legal authorization from the National
Assembly as required by law; instead the President stated that he granted “anticipatory
, is he legally empowered to make any such approval?

This entire
scenario makes a joke of the government and projects the importance of
separation of powers which is a device that guards against abuse of power or
political liberty from any arm of government. Inherent in this doctrine of
separation of power is the principle of checks and balances. The separation of
these powers serves to check each organ and balance their operations without
encroachment of one by the other as affirmed by the Supreme court in UNONGO V APER AKU(1983 2 SC NLR 332 at

this action, the President has technically suspended the Constitution,
plundered the inherent powers of the National Assembly which is a master of its
own household as submitted by Kayode
Eso, JSC (as he then was) in AG BENDEL STATE V A.G FEDERATION (1981) 10 SC 1 AT
albeit, the exception to this sovereignty is where the powers of the
legislature have been specifically restricted by the constitution.

in law, one of the twelve maxims of Equity says that, “where there is a wrong,
there is a remedy”,
and in this case it applies as the Judiciary is well
furnished to remedy the wrong occasioned by Mr. President. Interestingly, the
Judiciary having been empowered by Section
of the constitution is at the apex of this checks and balances; it has
the principal duty of inquiring into the legalities of acts of the executive
and the legislature. Any question as to whether the executive has acted intra or ultra vires or has complied with the procedures, manner or form
prescribed by law is determined by a court of competent jurisdiction. This
supervisory role of the judiciary over the executive was affirmed by the
MAIDUGURI (1981) 3 NCLR 47
. Thus, the judiciary should rise to the occasion
as usual and invoke its constitutional powers to ensure that the monies
expended are duly refunded to the Excess Crude Accounts by the Presidency.


To this
end, the powers conferred upon the executive under the constitution are too
wide and enormous that it has puff the members of the executive. This had led
to deleterious maneuvers which have crippled democracy in Nigeria. There is the
need for a review of the immunity guaranteed to Chief executives so as to limit
the immunity to civil actions and lift the veil of immunity as well to criminal

In future,
instead of going down the path of illegality, the President should lobby and
cajole lawmakers on a matter this important and urgent. In as much as the
government wants to tackle security challenges, it shouldn’t violate the
Letters and Spirit of the Constitution, so there will be no room for bad

Eloho Yekovie Esq. is an Associate of Triax
Solicitors, an indigenous Law Firm with offices in Abuja and Bayelsa state.
are a niche expertise Law firm which comprised of young, hardworking legal
practitioners who are making waves in their core areas of competence as well as
in continuous legal education and development.