Justice Oluremi Oguntoyinbo of the Federal High Court sitting in Lagos has ordered the Federal Government to recover pensions collected by former governors now serving as ministers and members of the National Assembly.
The judge 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.
Justice Oguntoyinbo gave the jugment following 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).
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.”
