A judge of a Federal High Court in Lagos, Justice Oluremi Oguntoyinbo, has ordered the Federal Government to recover pensions collected by former governors who are later serving as ministers and members of the National Assembly.
Justice Oguntoyinbo also asked 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.
It would be recalled that the Socio-Economic Rights and Accountability Project (SERAP) had in July 2017 requested AGF 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.
However, due to failure of AGF to act on the letter, SERAP instituted a suit, sought for an order of mandamus to compel AGF.
In the suit, SERAP sought for an order of mandamus to compel the AGF 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.
In its opposition to the suit, AGF argued that the States’ laws duly passed could not be challenged. The minister also 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.
In order to rule on the application, Justice Oguntoyinbo raised following questions: “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?
The court held that, “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.
“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.”
Justice Oguntoyinbo has adjourned the suit to February 3, 2020 for hearing on report of compliance with the court orders/judgment by the Federal Government.
