Court Rules that State Pension Laws made Pursuant to the Constitution Valid and Constitutional

National Industrial Court

The Hon. President of the National Industrial Court of Nigeria, His Lordship, Hon. Justice Benedict Kanyip has dismissed the suit filed by Enough is Enough Nigeria and 39 others on state pension laws for former Governors and Deputies against the 36 States Governors’, States House of Assembly and Attorney General of the Federation for lacking merit.

The Court declared that all State pension laws made pursuant to section 124(5) of the 1999 Constitution are valid and constitutional that the laws cannot be read to be contrary to or in contravention of any subsisting legislation or the Constitution.

The claimants sought the orders of Court to nullify various State Laws stipulating pension and other remuneration for Governors and Deputy Governors that the 1999 Constitution has given the Revenue Mobilization, Allocation & Fiscal Commission, RMAFC the exclusive power to set the remuneration of such public officials that pension is part of the remuneration of public officials; therefore, any law that stipulates pension of such public officials already covered by the constitutional mandate of the RMAFC is ultra vires, null and void.

And further submitted that the power of the State House of Assembly to make laws regarding pension for the State Governor and Deputy Governor must be in conformity with the pension set by the RMAFC urged the Court to hold in their favour.

The claimants in the instant suit had applied to be joined as the 3rd to 42nd defendants in Barrister Bala Ngilari v. Adamawa State Government and 2 ors and they were so joined, and they filed a preliminary objection canvassing issues similar to the instant suit. The Court raised the question of whether the instant suit is not an abuse of the court process, asked parties to address the Court in writing on the said issues.

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In reply, the claimants submitted that the earlier suit relates to the employment of the claimant as Deputy Governor in the service of the 1st defendant while the subject matter of the instant suit is on interpretation of the issues of law pertaining to the remuneration, including pension and out of office allowances for the State Governors and their deputies, as well as the ability of the States House of Assembly to enact laws with regards to such remunerations urged the Court to rule in their favour and hold that this suit does not constitute an abuse of court process.

To the Adamawa State Government, the present suit as filed by the plaintiffs amounts to an abuse of court process that given the facts that the plaintiffs are parties to a pending suit before the Court on the same subject matter urged the court to dismiss it in its entirety.

Furthermore, the Governors of Adamawa contended that the suit is incompetent and ought to be struck out for lack of joinder of necessary parties that none of the former Governors or their Deputies who will be affected by the outcome of the judgment one way or the other was joined as a party in the suit that the body empowered to make law for the grant of pension and gratuity for the former Governors and their Deputies is the House of Assembly of the State urged the Court to resolve the in his favour.

In the same vein, the Governor of Bayelsa and State House of Assembly urged the Court to dismiss the case for being a waste of time while the Governor of Kwara and State House of Assembly urged the Court to dismiss the claimants’ suit in its entirety for being frivolous and vexatious.

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Delivering Judgment, the presiding Judge, Justice Kanyip held that All the requirements to make up an abuse of court process, which the claimants themselves and the defendants outlined i.e. a multiplicity of suits; between the same opponents; on the same subject matter; and the same issues, are present in the instant case, barred the applicants from instituting this same action.

“Ordinarily, with the holding that this suit is an abuse of court process and the order barring the claimants from instituting the same action at all times and for all times, this matter ought to come to an end here.

“But I am enjoined to look at the merit of the claimants’ case just in case they proceed to the Court of Appeal, just so that the Court of Appeal would have the benefit of a verdict from this Court on the merit of the case to avoid delay if the Court of Appeal comes to the conclusion that I was wrong in holding that the instant case is an abuse of court process.

“The question, therefore, arises whether pension is part of remuneration as the claimants argue. A global look at these definitions will show that pension and remuneration are not one and the same as to make pension part of remuneration as argued by the claimants.

“It must be noted that the power of the RMAFC under section 124(1) is one that relates to “salaries and allowances”. Pension is not mentioned at all, and the “salaries and allowances” talked of are those “paid to the holders of the offices mentioned in this section”.

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Furthermore, on the claimants arguments that the State Houses of Assembly cannot legislate on pensions or gratuity for former Governors and former Deputy Governors, the Court held that the exclusive legislative power of the National Assembly under section 4(1) and (2) is not absolute.

“…by the current constitutional arrangement, therefore, the National Assembly has no legislative power at all to legislate on the pension of those who held office as State Governor or Deputy Governor given the very specific power given to State Houses of Assembly to that effect. The doctrine of covering the field accordingly has no application as the claimants seem to think.

“Unfortunately for the claimants, in the Concurrent Legislative List, pension for those who held office as Governor or Deputy Governor is not an item.

“Accordingly, all State pension laws made pursuant to section 124(5) of the 1999 Constitution are valid and constitutional.” Justice Kanyip ruled.

In all, the Court dismissed the case for lacking merit and ordered claimants to pay the sum of N400,000.00 to the Governors of Adamawa, Bayelsa, Kwara States and Bayelsa and Kwara States of Assembly within 30 days.


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