Kwara State Government vs Pensioners: Counsel ask Supreme Court to reverse itself for the sake of constitutional protection
*Supreme Court verdict sparks legal controversies
From Michael Olanrewaju
Controversies often trail some of the judgments of the Supreme Court as the supposed final arbiter on legal matters in recent times as a sharp departure from the glorious past where every party in a matter before it doff their cap for its decision.
On the 28th April, 2017, the Supreme Court allowed the Appeal filed by the Kwara State Government against it’s 9,030 accredited pensioners that the State Government had deducted N1.68Billion which is 50% from their pension and gratuity since 2008, set aside the judgment of the Court of Appeal which ordered that their entitlements be paid to them and ordered that the case which commenced with an originating summons be heard by another Judge of Kwara State High Court aside Justice E.B. Mohammed that had earlier on heard it.
Some of the lawyers opined that with the judgment, the Supreme Court lost an ample opportunity to use its interpretative jurisdiction to amplify in its dimension and arbiter the provision of Section 210 of the 1999 constitution as amended as it affects pensioners throughout Nigeria.
They added further that a befitting judgment on the interpretation of Section 210 of the constitution would have settled permanently the manifold set of unending deduction, withholding and alteration of the pensioners pension by the Governors as it is now the practice by most of the Governors throughout the federation. The most recent one that is yet unsettled is that of Imo State where Governor Rochas Okorocha has embarked on deduction, withholding and alteration of pensions of public servants It was as if while this was going on, the Supreme Court dodged the issue.
Since the judgment was given, some issues arising from it which legal minds considers worrisome are that can the High Court of Kwara State hear and determine pension matters in 2017 when the power to hear and determine such matter has since 2011 being invested in the National Industrial Court (N.I.C.) under Section 251(c) of the 1999 Constitution as amended.
The order of the Supreme Court is to be executed by the parties and the Court which some learned lawyers described and likened to throwing back a case to the Bendel State High Court in 2017 when the question would arise that do we still have Bendel State in 2017?
They further said that the Counsel to the pensioners raised preliminary objection, filed motion challenging the competency of the appeal. And the Supreme Court heard the objection and substantive matter together. Unlike the trial Court that delivered a ruling on a date for judgment, the Supreme Court delivered judgment without specific ruling on the preliminary objection. That, in itself is travesty of justice as it is without fair hearing.
Picking hole in the judgment, they averred that the Supreme Court set aside the judgment of the Court of Appeal having misconstrued the ruling of the trial Court to be an interlocutory ruling whereas it is a final order that struck out the entire case at the time of ruling/judgment. The case for judgment cannot be interlocutory.
Strangely, the Supreme Court did not take argument on this issue-whether the judgment of the trial Court is for interlocutory or final as considered by the Court of Appeal.
The Supreme Court missed it so badly because under Section 246 (4) of the 1999 constitution as amended, the decision of the National Industrial Court before the Court of Appeal is final. Pension matters are to be tried, heard and determined by the National Industrial Court.
It therefore means that the opportunity of the Supreme Court to determine Section 210 through this action is completely lost as such matter could no longer come to the Supreme Court.
Even, if the Supreme Court can still deal with pension matters brought by pensioners or retirees in the present day Nigeria, how many retirees or pensioners can fight their matter in protection of their pension up to the Supreme Court?
In an interview with counsel to the pensioners, Barrister Deji Gbadeyan of Timothy Oladeji SundayGbadeyan solicitors, he averred that “the mistake made in this case in not restating the position of the Constitution for the greater good of the greater majority on pension
deduction, withholding or alteration by the Executives was the kind of mistake the American Supreme Court never made in the case of Roe vs. Wade where denial of a black pregnant American woman to sit in a bus in 1959 arising from the segregation law applicable as at that time went as far as the Supreme Court to determine whether such segregation law that forbid blacks to sit in a bus Are constitutional or not.”
When asked about his advice to the parties on the matter, Gbadeyan suggested that, “we may file a motion before the Supreme Court to set aside the judgment being a nullity and a contravention of fair hearing provision of the constitution according to section 36 as earlier
deduced by other lawyers on the matter.”
Asked further that whenever the Supreme Court concludes an appeal, the case file is closed; they don’t open it as it is considered final, and how would he contend with this? Gbadeyan explored the historical genesis of the powers of the Court with changes of decisions. He said, “the word Lord means ultimate: it connotes ultimate end, power and finality of word as well as the arrogance of not looking back. We have the Lord temporal and Lord spiritual. Under the Roman law, once the king has spoken nobody changes it. We also have the Law Lord but above all, we have the Lord God Almighty who is the creature of all other Lords whose words and deeds cannot be changed by anybody. All the categories of Lords pattern themselves after Him as their mentorship.
That is why they bask in the euphoria of finality. In the Bible, when Jesus Christ was tried, Pontius Pilate exercised his Lordship. It is unexpected for a court to draw their inspiration or principle of law but Law Lords are mere mortal. From what the Lord God Almighty had Himself done in the past, the British Court in around 1623 in the popular case of R vs University of Cambridge drew inspiration from Lord God’s trial of Adam after eating the forbidden fruit to fashion what is generally referred to as fair hearing and constitutionally entrenched all over the world today.
“”While we are talking about finality, there is nothing like finality of decision of any Lord. It is wrong for the Law Lords to act like Pontius Pilate who knew that Jesus Christ was not guilty but was subjecting his decision on public opinion. In the corridor of power, the law does not suffer anybody without remedy (No wrong without a remedy).
“The Supreme Court like God Almighty should reconsider this appeal and render a well deserved judgment that can stand the test of time based on non-workability and non-consideration of the preliminary objection to the competency of the Appeal.”
When Gbadeyan was probed further on why he said like God Almighty, he said, “God Almighty changed his finality in judgment. The God Almighty all knows God and he does not dwell in error like human beings Yet, He changed His finality position, reconsidered and reversed His death sentence on King Hezekiah after the king supplied the Lord God fresh
set of facts that the Lord did not consider in His judgment. He reversed Himself. Therefore, there is nothing stopping the Supreme Court to reverse itself when it is violation of the constitution.”
It would be recalled that the Kwara State Government under the leadership of Dr. Bukola Saraki (now Senate President) agreed in 2008 to pay the outstanding pension arrears and gratuities. The Government compiled the deserving recipients’ made up of 9,030 called accredited pensioners. The Government announced that it would require N3.3Billion to defray the entire sum and approached the defunct Intercontinental Bank for a loan of N3.3Billion which was collected.
Instead of paying the entire sum to the accredited pensioners, the Government was not comfortable paying the entire sum. They therefore approached the State chapter of Nigeria Labour Congress (NLC) under the leadership of Comrade Emmanuel Aiyeoribe and the principal officers of Nigeria Union of Pensioners (NUP) for a parley and amicable resolution of what the state Government could pay to accredited 9,030 pensioners. In between themselves, they came out with a written agreement to the effect that the Government would be paying 50% of the amount payable to each of the pensioners while the remaining 50% deducted would be used for the development of the state.
Based on the agreement, the Kwara State Government actually paid 50% to each of the pensioners through cheques in June, 2008 alleging that it was a total settlement of 100% payable to each of the accredited pensioners and their file in respect of the matter is permanently closed.
Unfortunately, the Kwara state Government did not realize that pension is a personal right and like salary, it cannot be spent, deducted, withheld for, and on behalf of recipients by any
organization or body whatsoever without the consent of the individuals involved. There is nowhere that the 9,030 accredited pensioners gave out 50% of their entitlements either by signing or subscribing to any memorandum to that effect. And the Nigeria Union of Pensioners (NUP) is an incorporated body that it’s existence is not backed up by any statute.
An unrecognised body in law cannot through its representative engage in valid transaction or agreement that would deny individuals of their personal rights to pension and gratuities.
The representatives of the Nigeria Labour Congress (NLC) who subscribed to the agreement with the state Government are not pensioners and not equally entitled to any outstanding pension and gratuities. While the payment of pension and gratuity either in arrears or otherwise is not a labour related matter that would warrant the presence of the NLC signing an agreement on behalf of deserving pensioners.
Thus, a group of pensioners under the aegis of Concerned Pensioners became dissatisfied with the deductions of their entitlements and they approached the legal firm of Deji Gbadeyan and co for the protection of their legal; rights.
The legal firm wrote the Kwara State Government demanding the release of 50% deducted back to the pensioners. It is the refusal of the state Government that made the pensioners went to Court in 2008 claiming among others that under Section 210 of the 1999 constitution, their pension and gratuities is absolutely protected because that law says that no pension of public officer shall be deducted, withheld or altered to the pensioners’ disadvantage.
The matter was therefore for the interpretation of section 210 for the benefit of all pensioners in Nigeria. When the trial Court was to deliver judgment in the case after hearing the preliminary objection and substantive together, he merely dealt with ruling on the preliminary objection and struck out the entire case without touching the constitutional matter therein upon which he has taken argument.
The Court of Appeal, Ilorin Division later overruled the trial judge on the ruling based on its power under section 15 of the Court of Appeal Act to an effect that it can exercise the same power with the High Court wherever the High Court could not have the advantage of the
Court hearing and seeing the parties. And the action before the High Court that led to the Appeal having is being commenced by originating summons which was just based on affidavit evidence; the Court of Appeal heard the entire matter and asked that the entire 50% be paid to the accredited pensioners.
The ruling said that the deduction and withholding is contrary to section 210 of the 1999 constitution, unjustifiable and it should be paid back to the 9,030 accredited pensioners within 6 months.
Instead of complying with the payment order made by the Court of Appeal, the Kwara State Government appealed to the Supreme Court against her pensioners who could no longer engaged in any gainful employment at their old age. At the Supreme Court, the Court on
28th September, 2015 granted an accelerated or expeditious hearing because most of the pensioners are dying in droves. The 9,030 accredited pensioners are in the age bracket of 60-90 years as the denial of that pension started in 1999. The Court granted the expeditious hearing while the case was adjourned to February 15, 2016 for definite hearing. However, the Supreme Court did not sit throughout that week and the Appeal was not given any other hearing date notwithstanding letters written by the pensioners to have their appeals listed for hearing until 11 months thereafter. The pensioners cannot but be grateful to the CJN, Walter Onogen who after receiving one of such letters while still Acting set down the Appeal for hearing on 31st January, 2017 and it was heard that day.