The court has also 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.
Among those affected are former Senate President, Bukola Saraki, Minister of Niger Delta Affairs, Godswill Akpabio, ministers and ex-governors cum Senators.
A certified true copy of the judgment delivered last week was obtained on Wednesday.
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.
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.
“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 a 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 inaction to protect a public right or enforce the performance of 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 to 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.”