Validity Of Public Officer’s Pension Law In Incorporated Trustees Of Human Development Initiatives & 31 Others And Governor Of Abia State & 73 Others: A Missed Opportunity?

By Osita Enwe

“Accordingly, all State pension laws made pursuant to section 124(5) of the 1999 Constitution are valid and constitutional. They cannot be read to be contrary to or in contravention of any subsisting legislation or the Constitution. If the draftsman of the 1999 Constitution intended to give the RMAFC powers to stipulate pension or gratuity of former Governors and former Deputy Governors, he would have clearly stated so.”

The above excerpt was the finishing stone Hon. Justice B. B. Kanyip (Ph.D.) laid on the question of validity of the “Gubernatorial” Pension Laws as enacted by State House of Assembly in Nigeria in his judgment in the case instituted by Incorporated Trustees of Human Development Initiatives & 31 Others against Governor of Abia State & 73 Others (unreported Suit No. NICN/ABJ/47/2019 delivered on 23.01.2020)

The Claimants who filed the suit on 07.03.2019 vide originating summons, challenged the validity of various pension laws respectively enacted by State House of Assembly pursuant to section 124(5) of the 1999 Constitution of the Federal Republic of Nigeria (as Amended), that is, pensions for former governors and the deputies.

The plank of their arguments was that pensions to governor and the deputies is a remuneration of public officer holders stated in Item 32(d) of the 3^rd Schedule to the 1999 Constitution of the Federal Republic of Nigeria (the “1999 Constitution”) as well under the condition safety and welfare of labour stated in Item 34, Part I, 2^nd Schedule to 1999 Constitution.

The Claimants contended that the Revenue Mobilization and Fiscal Allocation Commission (the “RMAFC”) who was the 74^th Defendant had the constitutional duty to provide for remuneration of governors and the deputies as well as for pensions, and urged the Court to strike down all known former governors and deputy governors’ pension laws (the “gubernatorial pension laws”) as unconstitutional pursuant to sections 1(3) and 4(2) of the 1999 Constitution. They also prayed the Court to order all named Attorney-General to recover payments made to any former governor and the deputies.

The very few defendants who entered appearance in the suit all joined issues with the claimants. In its judgment, the Court, after careful considerations of all issues raised including the question of the suit being an abuse of court process, did not only validate the laws but awarded costs against the Claimants with a scathing statement that the Claimant who were successfully joined as parties, at their instance, in Barrister Bala Ngilari v. Adamawa State Government and 2 ors Suit No. NICN/ABJ/356/2015, had abused the court process by filing the suit.

The Court found that in Barrister Bala Ngilari v. Adamawa State Government (supra), the Claimants who had filed a preliminary objection canvassed issues very similar to the suit before it, commenced the originating summons, after they lost a preliminary objection in Barrister Bala Ngilari v. Adamawa State Government instead of pursuing an appeal. The Court ordered the Claimants never to institute the “action at all times and for all times” on the subject matter.

Consistent with the decision of the Supreme Court per his Lordship, Tobi, JSC in Feed & Food Farms (Nigeria) Ltd v. NNPC [2009] LPELR-1274(SC); (2009) 12 NWLR (Pt. 1155) 387 that “any court below the Supreme Court is in order to take, in the alternative, the merits of the matter after coming to the conclusion that it has no jurisdiction to hear the matter. This is to make sure that the case is not further delayed if the appellant court comes to the conclusion that the ruling on lack of jurisdiction is wrong. Accordingly, I am of the view that it is good wisdom on the part of the Court of Appeal to take the other issues in the appeal after coming to the conclusion that it had no jurisdiction to hear the matter”, the Court proceeded to deliver its judgment on the merits of the Claimants’ claims.

The Court differentiated the words remuneration from pension and, found that section 124(5) of the 1999 Constitution provides for pension or gratuity of former governors and the deputies while section 124(1) and Item 32(d) of the 3^rd Schedule to 1999 Constitution provides for remuneration of incumbent governors and the deputies.

The Court found that section 124(5) is an exception to the generality of the exclusivity of the powers of National Assembly to make laws in respect of certain matters, especially in view of the specific requirement of section 124(5) that such pensions are payable from the consolidated revenue fund of the state (section 120(1) 1999 Constitution) as distinct from consolidated revenue fund of the federation (section 80(1) of the 1999 Constitution).

In respect of apparent contradictions between section 124(1) and (5) of the 1999 Constitution, the Court further found that section 124(1) and (5) of the 1999 Constitution respectively relates to any incumbent governor and the deputy and, former governors and the deputies.

The Court acknowledged the frustrations expressed by the Justices of the Court of Appeal – outside the questions of law before it – on 20.05.2019 in Appeal No. CA/A/810/2017 (filed by Governor of Kogi State against Chairman, Kogi State Local Government Service Commission & others), that civil servants are subjected to contributory pension schemes with many others who are not even paid their pensions yet political office holders who did not work as long and hard as civil servants quickly get paid huge severance benefits upon leaving office. – The Court of Appeal stated it to be a morally reprehensible practice.

We are inclined to think that, mindful of the disposition of the Court of Appeal, that the Court should have more actively – taking into account our historical situations – raised the crucial question of whether section 124(5) of the 1999 Constitution empowers State House of Assembly to make laws in respect of pension and gratuity or merely pension or gratuity, and whether houses, cars, domestic staff, funeral costs, and annual medical expenses form part of pension or gratuity.

Truly, section 124(5) of the 1999 Constitution allows State House of Assembly to make laws in respect of pension or gratuity and not both pension and gratuity, as generally found in some gubernatorial pension laws across States in Nigeria.

To our mind it is a missed opportunity for a more robust legislative activism aimed at endearing the judiciary, more, to the heart of the ordinary Nigerians. Had, the Court invited the parties to address it on whether the State House of Assembly could make laws in respect of pension and gratuity instead of pension or gratuity as clearly stipulated in section 124(5), the Court would have promptly struck down all gubernatorial pension bills that provided for pension and gratuity (with the anomalies) as unconstitutional, to the resounding public acclaim of our judiciary. – This remains an unanswered question of law and should be promptly revisited.

While winding down its judgment, the Court questioned the propriety of litigating on the validity of the gubernatorial pension laws instead of lobbying for amendment or repeal by the National Assembly or State House of Assembly. The Court was adamant that the National Assembly or State House of Assembly would have been a better working model to broker an amendment of the 1999 Constitution or repeal of the gubernatorial pension law instead of the Court.

It hinged its judicial opinion on the effectiveness of the media outrage against Zamfara State gubernatorial pension law and its consequent repeal. Yet we are not unmindful of the extreme costs of brokering a repeal when the governor or the legislatures are unwilling, as appears to be the case in most States in Nigeria – except for apparently public lip-service.

To faithfully grind the engine of Constitutionalism, all arms of government must live up to its responsibilities together with the citizens that include civil societies. We think that this missed judicial opportunity is still before us. Nigerians including civil societies must now seek ways to approach the Court to strike down all gubernatorial pension law that provide for pension and gratuity as unconstitutional as well as for the Courts to determine the source from which gratuity is to be paid from, given the sealed lips of the 1999 Constitution on the source of gratuity payable to former governors and the deputies.

Notably, the favourable social media outbursts against Enugu State Gubernatorial Pension Bill and the State Government’s commitment to back-down on the said Bill is a bonus to the growing sense of political awareness of Nigerians, and should be sustained and surpassed at any other time.

Osita Enwe, Managing Associate, SRJ Legal Practitioners., @OsitaEnwe on Twitter.