The Federal High Court sitting in Lagos in a landmark judgment
has ordered the Federal Government to “recover pensions collected
by former governors now serving as ministers and members of the
National Assembly, and directed the Attorney General of the
Federation and Minister of Justice Mr. Abubakar Malami, SAN to
challenge the legality of states’ pension laws permitting former
governors and other ex-public officials to collect such
pensions.”
A certified true copy of the judgment delivered last week was
obtained yesterday.
The judgment by Justice Oluremi Oguntoyinbo followed an
application for an order of mandamus in suit number
FHC/L/CS/1497/2017 brought by the Socio-Economic Rights and
Accountability Project (SERAP).
The judgment is coming on the heels of the invalidated pension
law for former governors and other ex-public officers in Zamfara
State, which provided for the upkeep of ex-governors to the tune of
N700 million annually. The state has produced three former
governors since 1999.
In the SERAP’s judgment, Justice Oguntoyinbo said: “The
Attorney General has argued that the States’ laws duly passed
cannot be challenged. With respect, I do not agree with this line
of argument by the Attorney General that he cannot challenge the
States’ pension laws for former governors.”
Justice Oguntoyinbo also said: “The question that comes to mind
is: who should approach the Court where a particular law is not in
the best interest of Nigeria as a country or National interest? Who
should approach the Court where a particular law is detrimental to
the interest of the country? Who should institute actions in court
for the purpose of recovering public funds collected?
In answering the questions, Justice Oguntoyinbo said: “In my
humble view, the Attorney General should be interested in the
legality or validity of any law in Nigeria and how such laws affect
or will affect Nigerians, being the Chief Law Officer of the
Federation.”
Justice Oguntoyinbo has adjourned the suit to the
3rd of February 2020 for hearing on report of
compliance with the court orders/judgment by the Federal
Government.
Justice Oguntoyinbo’s judgment read in part: “I have considered
SERAP’s arguments that it is concerned about the attendant
consequences that are manifesting on the public workers and
pensioners of the states who have been refused salaries and
pensions running into several months on the excuse of
non-availability of state resources to pay them. SERAP has also
argued that there is need to recover such public funds collected by
former governors.”
“It is clear from the facts of this case that SERAP had written
the Attorney General to institute appropriate legal actions to
challenge the legality of States’ laws permitting former governors,
who are now senators and ministers to enjoy governors’ emoluments
while drawing normal salaries and allowances in their new political
offices and to seek full recovery of funds from those
involved.”
“SERAP has stated that since the receipt of the said letter, the
Attorney General has failed, refused and/or neglected to institute
appropriate legal actions to that effect. In my view, the principle
of ‘demand and refusal’ has been satisfied by SERAP. I have also
considered the fact that in action to protect a public right or
enforce the performance of a public duty, it is the Attorney
General that ought to sue.”
“Having considered all the facts presented by SERAP on the need
for the suit and the Counter-Affidavit against same, I find no
reason why the order of mandamus should not be granted. I am of the
view that SERAP’s suit has merit.”
“I resolve this issue against the Attorney General, in favour of
SERAP. I hold that the Motion of Notice for Mandamus dated
6th February 2018 and filed on
7th February 2018 has merit. It is therefore
granted in the terms sought.”
“In other words, the Attorney General is hereby directed to
urgently institute appropriate legal actions to challenge the
legality of states’ laws permitting former governors, who are now
senators and ministers to enjoy governors’ emoluments while drawing
normal salaries and allowances in their new political offices and
to identify those involved and seek full recovery of public funds
from the former governors.”
“I take judicial notice of the essence of the creation of SERAP.
I believe that SERAP has the locus standi to bring this suit. More
so, this is a constitutional matter. In constitutional matters, the
requirement of locus standi becomes unnecessary to a great extent
as it may merely impede judicial function. This issue is therefore
resolved against the Attorney General, in favour of SERAP.”
“SERAP is seeking an order of mandamus to compel the Attorney
General to file action to challenge States’ pension laws for former
governors and recover public funds collected by them in the public
interest, since the Attorney General has failed/neglected to
institute such action. That is the essence of SERAP’s suit.”
“I believe the Attorney General can institute action in a Court
of law to challenge States’ pension laws for former governors. I do
not see any substance in the submissions of counsel to the Attorney
General on this issue. I therefore resolve this issue against the
Attorney General, in favour of SERAP. On the whole, I find no merit
in the Attorney General’s preliminary objection. It is accordingly
dismissed.”
SERAP deputy director Kolawole Oluwadare said: “This
ground-breaking judgment is a victory for Nigerian workers and
pensioners who have not been paid by state governors for several
months and struggle to make ends meet whilst former governors now
serving as ministers and senators continue to collect double
emoluments and enjoy opulent lifestyles.”
“Justice Oguntoyinbo’s judgment shows the urgent need for state
governors in Nigeria to follow the Zamfara example by immediately
abolishing the obnoxious pension laws in their states. We commend
Justice Oguntoyinbo for her courage and wisdom, and urge President
Muhammadu Buhari and Mr Malami to immediately obey the court
orders.”
“This judgment should catalyse further action from the Chairman,
Nigeria Governors’ Forum and Ekiti State governor Dr Kayode Fayemi
to use this judgment to abolish pension law in his own state and
make a clear public commitment that the Governors’ Forum under his
watch will push all governors and ex-governors to abolish life
pensions and return public funds collected by them before being
compelled to do so.”
Femi Falana, SAN said on the judgment: “SERAP deserves the
commendation of all well-meaning people that have agonised over the
legalization of obscene pension package for former governors. This
is one of the most patriotic public interest litigation ever
undertaken in Nigeria. We call on state governors to use the
judgment as the basis for formally repealing life pension laws and
all other retrogressive laws without any further ado.”
Justice Oguntoyinbo’s judgment also reads: “I have considered
the papers filed and it is obvious that SERAP is a human rights
non-governmental organization, seeking to protect the public
interest. It is also clear that the reason for this suit is to
compel the Attorney General to challenge the legality of states’
pension laws for former governors and to identify those who have
collected pensions and also seek to full recovery of public
funds.”
“Parties ought to be bound by the issues they formulate. They
ought not to make arguments outside the issues formulated by them.
The Attorney General has failed to give any reason for submitting
that SERAP’s suit is incompetent.”
“The argument made is that the reliefs sought by SERAP in this
suit cannot be granted; that the Attorney General cannot be
compelled to institute actions and that the laws sought to be
challenged were duly passed by the House of Assembly, and are
therefore legal and ought not to be challenged. However, SERAP on
its part has made contrary arguments.”
“The Attorney General has argued that SERAP has not shown any
injury it has suffered any injury as a result of the salaries and
allowances being given to former governors who are now senators.
SERAP is neither civil servants nor public servants who have any
issues with the said States’ pension laws for former governors.
That the suit was filed to promote transparency and accountability
does not confer locus standi on SERAP to maintain this action.”
“The Attorney General has only made argument as to why the suit
should be refused on the merit. I believe the Attorney General
ought to have incorporated these arguments in his response to the
suit rather than incorporating same in a preliminary objection.
This is fatal to this issue in this suit.”
It would be recalled that SERAP had in July 2017 requested Mr
Malami to urgently institute appropriate legal action to challenge
the legality of states’ laws permitting former governors, who are
now senators and ministers to enjoy governors’ emoluments while
drawing normal salaries and allowances in their new political
offices and to seek full recovery of public funds from those
involved.”
Former Senate President and governor of Kwara state Bukola
Saraki said he stopped collecting pension after hearing of SERAP’s
suit, and subsequently inspired the passing of the bill by the
Kwara State House of Assembly to suspend payment of pensions to
former governors and their deputies.
Saraki had said at the time: “No, I’m not collecting pension;
the moment I saw that SERAP allegation, I wrote to my state to stop
my pension.”
The repealed pension law in Zamfara State allowed former
governors to receive pension for life; two personal staff; two
vehicles replaceable every four years; two drivers, free medical
for the former governors and deputies and their immediate families
in Nigeria or abroad; a 4-bedroom house in Zamfara and an office;
free telephone and 30 days paid vacation outside Nigeria.
So far, Ekiti State governor Dr. Kayode Fayemi and Minister of
Labour and Employment, Senator Chris Ngige, and Minister of Works
and Housing Babatunde Fashola have denied ever receiving double
payments and retirement benefits as former governors in addition to
other roles in public office.
At least 22 states starting from Lagos State have passed life
pensions laws for former governors and other ex-public officials.
Other states include Akwa Ibom; Edo; Delta; Kano; Gombe; Yobe;
Borno; Bauchi; Abia; Imo; Bayelsa; Oyo; Osun; Kwara; Ondo; Ebonyi;
Rivers; Niger; Kogi; and Katsina.
SERAP’s letter to Mr Malami read in part: “According to our
information, those who reportedly receive double emoluments and
large severance benefits from their states include: Rabiu Musa
Kwankwaso (Kano); Kabiru Gaya (Kano); Godswill Akpabio (Akwa Ibom);
Theodore Orji (Abia); Abdullahi Adamu (Nasarawa); Sam Egwu
(Ebonyi); Shaaba Lafiagi (Kwara); Joshua Dariye (Plateau), and
Jonah Jang (Plateau).”
“Others include: Ahmed Sani Yarima (Zamfara); Danjuma Goje
(Gombe); Bukar Abba Ibrahim (Yobe); Adamu Aliero (Kebbi); George
Akume (Benue); and Rotimi Amaechi (Rivers).”
The Human Rights-Based Approach to
Carbon Finance NOW ON SALE— Order Your Copy!!!
written By Professor Damilola S. Olawuyi, LL.B
(1st Class), BL
(1st Class), LL.M (Calgary), LL.M
(Harvard), DPhil (Oxford) Professor of Law and
Director, OGEES Institute, Afe Babalola University, Ado Ekiti. For
more information or to order your copies, please
contact Mr. Keji
Kolawole: [email protected][2] , Tel:
+234 81 40000 988[1]
Subscribe ToNairalaw News! References ^
The Human Rights-Based Approach to
Carbon Finance NOW ON SALE— Order Your Copy!!!
(www.cambridge.org) ^ [email protected]
(nairalaw.com)