Judicial Review: Of Pension, Legality and Constitutionality 

Nigerian Leadership’s New Year’s Resolution 

Though I’m not really much of a believer in new year’s resolutions, I spent some time during the Christmas vacation ruminating on Nigeria, especially as the 2023 general elections are upon us, and some of the resolutions that our leadership must make on behalf of the country, especially the three arms of government, if we are really serious about salvaging Nigeria. They must resolve to see and take governance and leadership roles as a privilege to serve the country, and not as the fastest means to enrich themselves. In the words of John F. Kennedy, the 35th President of the United States of America (1961-1963) in his Inaugural Address: “Ask not what your country can do for you, ask what you can do for your country” – a call to civil action and public service, not self interest and corrupt enrichment.

Last Friday, I was shocked when I discovered that Nigeria’s public debt is in excess of N50 trillion (exclusive of way and means debt). There is an N11.34 trillion budget deficit for 2023, which is to be financed by domestic and foreign borrowing. Yet, Government continues to waste money on nonsense like fuel subsidy of over N3 trillion for the period January – June, 2023, when people are no longer buying fuel at a subsidised rate all over the country, if they are even able find fuel to purchase. And, because successive governments (present company definitely included) have shown that the happiness and welfare of Nigerians is not their priority, it would not be out of place to conclude in the instance of this opaque fuel subsidy regime, that it unlikely to be in the interest of Nigerians, but instead, for the benefit of the few who are making a fortune from its operation and it is therefore, contrary to Section 16(2)(c) of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2018) (the Constitution), because the economic system is being operated in such a manner as to concentrate wealth in the hands of a few individuals or a group, while the majority of Nigerians are suffering. How does one go about, challenging this bizarre policy? Judicial Review?

Severance Package for Non-Returning Legislators & Pensions Etc for Political Office Holders: Repugnant, Irrational & Unconstitutional

By virtue of Paragraph 32(d) Revenue Mobilisation Allocation and Fiscal Commission (RAMFC)  Third Schedule to the Constitution, RAMFC has been given the power to determine inter alia, the remuneration of Political Office Holders and Legislators. I was talking to a member of the House of Representatives, and I told him that I did not think that Government should waste our scarce resources on paying non-returning Legislators a severance package, which amounts to about N30 billion for the 2023 exercise (including some expenses for incoming Legislators). He gleefully responded that, “it is the law!” (2023 Appropriation Act). But, some laws can be repugnant to natural justice, equity and good conscience, and deserve to be repealed; and, I submit that any law allowing such extravagant, discriminatory pensions/severance not only fits that bill, it is also unconstitutional. A law that says that a Legislator who has served for only four years, for example (and probably did nothing more than “siddon look”, that is, bench warming at the National Assembly, as many of them do), should receive a 300% basic salary severance package, after receiving an unjustifiably huge salary and allowances while in elective position, is unjust, and is contrary to the spirit and letters of the the Constitution. N30 billion can pay over 45,000 unemployed youths N50,000 per month for a period of one year. Why should it be wasted on less than 500 Legislators?

I must also add that while the pension of a President and Vice President (who do not hold office for more than a maximum of eight years – two terms) are pegged to the rate equivalent to their incumbent successors-in-office (see Section 84(5) of the Constitution), and by virtue of Section 124(5) of the Constitution, Governors and their Deputies (who also do not serve for more than eight years maximum) are paid fabulous pensions via laws passed by their State Houses of Assembly, Judicial Officers and Civil Servants who have served for most of their adult lives (some up to 35 years), are paid pensions pegged to their last annual basic salaries, which are rather low (salaries of judicial officers for instance, having not been reviewed for about 14 years!). 

In Governor of Kogi State & Ors v Ahmed & Ors (2019) LPELR-48367(CA) per Emmamuel Akomaye Agim JCA (as he then was), the Court of Appeal held inter alia that: “The fact that elected public office holders and political appointees are paid huge amounts of money as monthly salaries and other forms of allowances while in office, is common knowledge in Nigeria.…It is also common knowledge that many of them, after an office tenure of between 3 to 8 years become stupendously wealthy, exhibiting mind blowing opulence and splendour. Yet, these office holders insist on being paid severance allowances for holding such offices. Meanwhile, career Civil Servants who have served this country or their States or Local Governments all their life, can hardly collect their pensions and gratuity when retired. They are now being subjected to contributory pension schemes, in which they contribute part of their monthly meagre salaries….to be able to earn pension and gratuity upon retirement. The political appointees and elected public office holders, who do not work as long and as hard as career Civil servants, quickly get paid huge severance allowances upon leaving office….without having been subjected to any contributory pension schemes. It is not morally right to pay an elected public officer or political appointee pension and gratuity or severance allowance….It cannot be justified….It amounts to gross social injustice”. I concur! I submit that this practice of paying huge severance and pensions to elected public officers and political office holders is inequitable, discriminatory, and an “unjustifiable gross social injustice” (in the words of Agim JCA (as he then was), especially against the Nigerian Civil Servant/Judicial Officer, and therefore, contrary to Sections 4(2) & 42(1)(b) of the Constitution. Such skewed, self-serving pension laws are not only bad laws which do not make for peace, order and good government, they are also a drain on tax payers’ contributions and Nigeria’s scarce resources.

Judicial Review

The power of Judicial Review was established by the US Supreme Court, in the case of Marbury v Madison, 5 U.S. 137 per Chief Justice John Marshall, by which federal courts could declare laws and executive or administrative actions unconstitutional, null and void. Stephen Kola Balogun, one of our columnists (My Brief by SKB) is a committed supporter of the doctrine of Judicial Review, which he described to me as “one of the greatest innovations that common law bequeathed to our jurisprudence in the last 100 years or so, but is sadly, under-utilised, if used at all”. According to A.B. Rubin in his article, “Judicial Review in the United States” (Louisiana Law Review Volume: 40 Issue: 1 Dated: (1979) Pages: 67-82) he stated thus: as “The doctrine of judicial review holds that, the courts are vested with the authority to determine the legitimacy of the acts of the executive and legislative branches of government”. 

The case of paying these severance packages to Legislators, and exorbitant pensions and gratuities to political office holders, seems to be an appropriate case for judicial review. It is an irrational policy, which cannot pass the threshold of reasonableness as established in the case of  Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 224, where the Court of Appeal of England and Wales held inter alia that where a decision maker has given more credence to irrelevant facts, where relevant facts have been ignored and a decision is completely absurd and so unreasonable that no reasonable authority could possibly have made it, the court can adopt remedies against such a public authority. Be it laws that provide for these unjustifiable packages, or executive or administrative actions that do same, it is time for the legislature’s severance packages for one, to be declared unconstitutional. Even if they have come about these gratuities for political office holders by enacting laws, I submit that such laws and acts are an irrational, self-serving misuse of power by the Legislature and Executive, which fit the profile of decisions that can be checked by judicial review.

Former NBA President, Dr Olisa Agbakoba,SAN has threatened to go to court to ascertain the true extent of EFCC’s powers. Unfortunately, he hasn’t told us how he intends to institute such an action, bearing in mind the complicated rules on locus standi. Going by way of judicial review, may possibly be the only legitimate way he can institute such an action. The sufficient interest test for judicial review, may not prove as insurmountable as the personal interest test in private law actions.

The venue for the ventilation of the severance package issue would be the Federal High Court by virtue of Section 251(1)(r) of the Constitution (and under the inherent jurisdiction of the court). Order 34 of the Federal High Court (Civil Procedure) Rules 2019, provides for Judicial Review. Leave to apply for judicial review must first be sought and obtained before the application for judicial review can be brought within three months of the act complained of, and Order 34 Rule 3(4) provides that the Judge shall not grant leave to apply unless he/she is satisfied that the Applicant has sufficient interest in the matter to which the application relates. In Adesanya v President, FRN & Anor (1981) LPELR-147(SC) per Mohammed Bello JSC (later CJN), the Apex Court held that what determines sufficient interest to prove locus standi depends on the facts of the case, and that “whether an interest is worthy of protection is a matter of judicial discretion, which may vary according to the remedy asked for”. 

I disagree that in all cases, a Plaintiff must show that he has suffered a personal injury, over and above a general one of being a tax payer, to be able to prove his/her locus standi to bring a public interest action, such as one for judicial review of these super-fabulous pension packages. See the case of Re Ijelu (1992) LPELR-1464(SC) where the Supreme Court held that the Plaintiff has to have a special interest which has been adversely affected, to have locus standi to bring an action. After all, Nigerians also have the right to participate in our government (see Section 14(2)(c) of the Constitution). In Oghenovo & Anor v Governor of Delta State & Anor (2022) LPELR-48062(SC) per Chima Centus Nweze JSC, the Supreme held inter alia that: “It would, in my view, be a grave lacuna in our system of public law, if a pressure group, like the federation, or even a single public-spirited tax payer, were prevented by outdated technical rules of locus standi, from bringing the matter to the attention of the Court to vindicate the rule of law and get the unlawful conduct stopped….In effect, there is considerable force in the view that it is by liberalising the rule of locus standi, that it is possible to effectively police the corridors of powers and prevent violations of the law”. I concur. 

Conclusion 

The law must not remain static. It must be dynamic, responding appropriately to the changing times. We cannot continue to let procedural technicalities, prevent us from doing justice to public law/public interest matters. With Section 6(6)(c) of the Constitution ousting the jurisdiction of the courts with respect to issues which border on the essence of governance, the Fundamental Objectives and Directive Principles of State Policy (Chapter II of the Constitution), Civil Procedure Rules providing that a Plaintiff must show that he/she has sufficient interest to institute what could be public interest actions questioning laws or executive or administrative actions (some judicial review matters), and court decisions echoing this position too, what options are left for people to be able legitimately and effectively question some of these things? The military era of lack of accountability of government and its policies, is gone. The practice of using repugnant laws and outdated court decisions as omnibus reasons to continue as if we are still in an autocratic military era, and perpetuate policies that may be unjust or outrightly wrong, must stop. If the Fiscal Responsibility Commission (FRC) established by the Fiscal Responsibility Act 2007 (FRA) was up and doing, it could also challenge these severance packages/pension laws and the fuel subsidy regime, as Section 3 of the FRA provides that the functions of the FRC include the promotion of the Section 16 economic objectives of the Constitution, and the dissemination of standard practices that will result in greater efficiency in the allocation and management of public expenditure and debt control.

There must be a clear procedural process, established to handle such matters questioning the validity of laws and policies, instituted as public interest matters  and not as private matters where a person must show personal injury to prove locus standi to qualify to institute the action, vis-à-vis their constitutionality and other parameters. See the case of O’Reilly v Mackman [1983] UKHL 1; [1983] 2 AC 237 in which the House of Lords (as it then was) established the principle of procedural exclusivity – judicial review.