Date: 2017-04-19

AHEAD of Supreme Court judgment on the N1.68billion perceived illegal deductions of the pensioners by the state government, on April 27, 2017, tension has gripped stakeholders and other citizens of the state.

Since the year 2009,the Pensioners under the aegis of Concerned Pensioners in Kwara State, which claimed to have more than 90% of the support of the members had dragged the state government to court when the state leadership refused to take the bull by the horn.

Six members of the Concerned Pensioners namely,Alhaji (Hon)Ishola Lawal,Prince Ayobamdele Ajibla,Usman Kasimu,Joseph Kolawole, Imman Gbagba and Mrs Mariam Akanbi on behalf of themselves and the 9,024 Kwara State accredited pensioners had dragged Kwara State government to court over the accumulative deductions of N1.68billion pensions and arrears of gratuities in contravention of section 210 of the Nigerian constitution and section 10 of the Kwara State Pensions and Gratuities laws.

Pensions and gratuities law The claimants, through their counsel, Deji Gbadeyan, aside fighting for the release of the N1.68billion among others, also is also asking the court to restrain the Kwara State Government and their agents from further withholding, deducting or stopping payments of the claimants pensions and gratuities in total disregard of the statutory prescription of Kwara State Pensions and Gratuities Laws 2008. It will be recalled that in his judgment on June 1, 2009 Justice E.B Mohammed of Kwara State High Court granted all the pensioners reliefs sought by the pensioners.

Following this development, the state government through the Attorney General of Kwara State, and Governor of Kwara State, filed counter-affidavit and a preliminary objection, praying the apex court to dismiss and/or strike out the claimants suit for want of jurisdiction on the grounds that the action of the respondents was as a result of an agreement between the state government and the Nigeria Union of Pensioners, NUP.

The respondents further contended that the claimants do not have the authority of the NUP, Kwara State, Chapter/Secretariat, to institute the action, and that the claimants do not have the authority of 9,024 pensioners they allegedly claimed to represent, and so lack the requisite locus standi to institute the action.

Ruling on the government petition, Justice E.B Mohammed of Kwara State High Court, ruled that "On the whole, I find that the claimants have not proved or established that they have the authorization or authority of substantial number of the other 9,024 pensioners purportedly represented in this case and by the nature of their claim, this cannot separate or severe their claim thus this suit cannot enure in their favour hence the defendants preliminary objection succeeds and it is hereby sustained.

Consequently, for all the above reasons this suit is hereby struck out for lack of authority or authorization of the parties sought to be represented" Not satisfied with the judgment, the claimants appealed to the Court of Appeal, contending that the learned trial judge erred in law when he misconstrued the purported order 14 rules 12 and 13 of the High Court Civil Procedure)Rules 2004 which deals with the institution of a representative action by numerous persons, and such misconception led him to assume the power of judicial review, in his judgment ,over his earlier ruling or decision which has settled the issues of parties representation.

According to them, "the learned trial judge also erred in law when he struck out the entire case before him simply because the six competent claimants whose names were mentioned and properly delineated in the originating process, did not specifically itemize their claims in contradistinction to that of others whose representation in the said originating process was struck out. The learned trial judge further erred in law, and such error occasioned a miscarriage of justice, when he considered and sustained the defendants/respondents preliminary objection which attacked the competency of the action based on an issue of Claimants/Appellants representative capacity through which they filed and prosecuted their case and that of 9,024 other pensioners.

A cross section of the aggrieved pensioners protesting against the deduction The learned trial judge also erred in law, and such error occasioned a miscarriage of justice, when he merely dealt with the preliminary objection in his judgment and totally refused to deal with the main constitutional issue that arose for determination in the substantive case; and by such conduct leaves the main issue and any other ancillary issue(s) undetermined and in abeyance for appellate court's consideration and determination.

The trial judge erred in law, when he refused to hear and determine the Claimants/Appellants motion on notice dated and filed 13th February 2009, wherein the Claimants/Appellants sought for an order of the court mandating the defendants/respondents to bring a bank draft in the sum of N1.68B,the subject matter of this suit, into the court for it to be deposited into an interest yielding account pending the final determination of this suit, leading to this appeal.

Interest yielding account After several arguments by the Counsels, Justice Sotonye Denton West of the Appeal Court in the judgment assented to by two other Judges, Justice Igwe Agube and Justice Chima Centus Nweze among others cited Section 210 of the 1999 constitution which provides as follows; On the issue of whether the six Pensioners have the right to stand for themselves and others irrespective of the disposition of members of the state executives of Nigeria Union of Pensioners in Kwara State, the appeal court in the judgment said, "The answer to that is that there is substantial compliance and that they instituted the suit for themselves and on behalf of 9,024 Kwara State accredited pensioners entitled to N1.68billion withheld pensions and gratuities arrears.

Then what is the names or names of the pensioners that do not want to be represented, I think that should be the most important thing the trial court should have considered. The mere fact that about 1000 pensioners show financial interest is enough to show that, all the 9,024 pensioners have the same interest in the suit, they all have the same grievance against the respondents who deducted part of their pension and gratuity.

The six representatives are part of them and the reliefs sought if granted will be beneficial to all persons being represented" It noted further that, "The argument of the respondents will not hold any water, more especially the argument that the Nigeria Union of Pensioners disassociating itself from the representative action leading to this appeal.

It is quite disheartening and worthy of note that the Nigerian Union of Pensioners who indeed should be at the forefront of this action to fight for the right of these senior citizens who are struggling to enforce their rights before the law are now being embarrassed as it were by some unscrupulous members of the Nigeria Union of Pensioners who had indulged in not fighting for the suffering masses of their union but would rather be engaged in signing MOU as therein presented in their affidavits and counter affidavits."

"I took judicial notice of the great number of the pensioners who were present in court. These were mainly elderly men and women. Most of these people in court were more like sixty years and above.

These are indeed senior citizens of our great country who should be enjoying the rewards of having served their fathers’ land. Instead, they were subjected to battle for their rights. Primarily, they should be accorded fairness and or natural justice, but they were obviously deprived by those who should be most concerned by their plight" "Consequently this appeal is hereby found to be meritorious and therefore succeeds.

In the circumstances, I am obliged to grant the prayers of the appellants as claimed in their appeal with the proviso, that the payment of the money by the respondent i.e Kwara State government, in the sum of N1.68billion should be paid within six months from today 30th day of June 2010.The disbursement should be made to the appellants and to all the 9,024 Kwara State accredited pensioners entitled to the N1.68B withheld pensions and gratuities.

The disbursement should be supervised by the Accountant General of Kwara State who perhaps could be assisted by the National Union of Pensioners; Kwara State chapter with logical conclusion to all the pensioners whose claims are involved in this appeal. There is no order as to cost.

The respondents, (Kwara State government) consequent upon this judgment, appealed to the Supreme Court. So, about seven years after Appeal Court judgment, and subsequent appeal by the government, not just parties to suit, stakeholders and other citizens of the state are anxiously looking forward to the Supreme Court judgment, because either the pendulum swings, there will be telling effect.