Justice Oluremi Oguntoyinbo of the Federal High Court
sitting in Lagos, has ordered the Federal Government to recover pensions
collected by former governors including Rotimi Amaechi, Babatunde Fashola,
Godswill Akpabio'' and others who are currently serving as ministers and
members of the National Assembly.
In a judgement delivered last week, the judge directed the
Attorney General of the Federation and Minister of Justice, Abubakar Malami,
SAN to challenge the legality of states’ pension laws permitting former
governors and other ex-public officials to collect life time pensions.
The judgment by Justice Oguntoyinbo followed an application
for an order of mandamus in suit number FHC/L/CS/1497/2017 brought by the
non-government organization, Socio-Economic Rights and Accountability Project
(SERAP). SERAP filed the suit to challenge the legality of former governors
currently serving as Senators or Ministers, to receive retirement benefits and
at the same time receiving salaries in their new political offices.
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.
Delivering judgement, Justice Oguntoyinbo said
“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 mandams 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.
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.”
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.
