Two weeks ago as I was driving home, a journalist of one of the leading newspapers in Nigeria drew my attention to a judgment of the Federal High Court in Lagos on a case instituted by Socio-Economic Rights and Accountability Project, a known non-governmental organisation, which, according to him, ordered the Federal Government to recover all the previous emoluments paid to ex-governors who are currently lawmakers and ministers where they are equally earning salaries and allowances. I was startled about the said judgment and my first reaction was to ask the journalist whether he was sure that that was the judgment of the court. My little knowledge of the administration of justice by the courts is that the court is not a Father Christmas who gives a claimant what the claimant has not asked for. I am aware of that case and had known what SERAP was generally asking the court to do with regards to the powers of the Attorney General of the Federation concerning the emoluments of ex-governors. In my amazement, I asked myself whether the court could really order the ex-governors to refund such funds already collected, when: (1) The laws duly passed by the states Houses of Assembly have not been invalidated? and (2) If the Attorney General of the Federation fails to ask for a refund in the case in which he is ordered to initiate, can the court suo motu order for such a refund?
I quickly asked my driver to park so that I can browse through the Internet to have a first-hand information of what was actually decided by Justice Oluremi Oguntoyinbo of the Federal High Court. For the sake of the reading public I hereby reproduce what the learned judge summarised in the case of SERAP.
She said, “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 an 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.”
The judge made sure to explain the essence of the judgment to avoid the interpretation that is currently and erroneously been ascribed to it. The judge in her judgment explained as follows:
“SERAP is seeking an order of mandamus to compel the Attorney General to file an 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 an 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 the counsel for 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.”
What is clear from this landmark judgment of the court is that the Attorney General of the Federation is ordered through an order of mandamus to initiate an action in court challenging state laws authorising the disbursement of emoluments to ex-governors, more so when such ex-governors are collecting salaries and allowances in their current positions in government.
The correct and plausible interpretation of that judgment is that not until the state laws are invalidated by the courts in a fresh suit to be instituted by the Attorney General of the Federation, it will be wrong to hold the view that ex-governors have been ordered to refund the emoluments they have so far collected from their states’ treasury as a result of the laws their states’ Houses of Assemblies had previously enacted. Those laws must first and foremost be invalidated by a court of law.
It is hoped that the Attorney General of the Federation will comply with the judgment of the court and institute the said action and let us see whether the laws can be invalidated by the court, after which the issue of refund will be resolved on whether such is possible and practicable.
It promises to be an interesting case whenever the Attorney General of the Federation commences it. However, I am of the firm view that the most practicable way to stop pension payments to the ex-governors is to request the various states House of Assemblies, where such laws have been enacted, to annul such laws by following the recent example of the Zamfara State House of Assembly. It is easier and less cumbersome that way.
Whether funds already collected could be refunded is another kettle of fish. It will throw up arguments like whether funds collected when the laws were legitimate can be refunded. As I said earlier, it promises to be an exciting case when it is eventually commenced.
Of utmost importance to me as a public-interest litigator was the robust decision of the said judgment on the locus standi of SERAP on the issue. The current shift of our courts on the issue of locus standi by not allowing the restrictive and unjust application of it to impede access to justice is highly commendable.
Hear the judge on this issue: “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.”
This decision on locus standi is taking a cue and following religiously the precedent recently established by the Supreme Court in the locus classicus case of Centre for Oil Pollution Watch V NNPC (2019) All FWLR (Part 1003), Page 54. In that case, the Supreme Court of Nigeria in liberalising the role of locus standi stated this: “Ready access to the court is one of the attributes of a civilised legal system. It is dangerous to limit the opportunity for one to canvass his case by rigid adherence to the ubiquitous principle inherent in locus standi which is whether a person has the stand in a case. The society is becoming highly dynamic and certain stands of yester years may no longer stand in the present state of social and political development.”
We are certainly getting there and my advice is that all Nigerians must join hands in pushing for a just and equitable society where majority shall live in joy and pleasure. It is possible if all hands are on deck. Once again, thumbs up to the judiciary on this case.
Monday Ubani is a legal practitioner
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