Justice Olukayode Ariwoola
Law

Fast tracking payment of retired judges’ entitlements

Like the National Judicial Council (NJC), lawyers have expressed deep concerns over the delay in payment of pensions and gratuities of retired judges by state governments. The lawyers said the state governors’ action is undermining the rule of law. FRANCIS IWUCHUKWU reports

Some senior lawyers have joined the fray in condemning the failure of some state governments to promptly pay the pension and gratuities of retired judges. The lawyers spoke at the weekend amidst similar concern by the National Judicial Council (NJC). The NJC had recently expressed its dissatisfaction with the nonchallant attitude of some state governors to payment of retired judges’ entitlements. In a statement issued at the end of its 100th meeting presided over by the Chief Justice of Nigeria (CJN), Olukayode Ariwoola, the NJC charged state governments to fulfil their financial obligations to the retired judges without further delay. The statement dated January 19, 2023 and signed by NJC’s Director of Information, Soji Oye, equally mandated States’ Chief Judges to file in their “reports on compliance” by state governments with the Council not later than 1st April 2023. The statement captioned; ‘NJC meets on, and very strongly condemns non-payment of retirement benefits/gratuities of State Judges’, reads: “The National Judicial Council under the Chairmanship of Hon. Justice Olukayode Ariwoola, GCON, at its 100th meeting held on 19th January, 2023, deliberated on the worrisome situation whereby many judicial officers of the states are being owed their retirement benefits, including severance pay/gratuity and pensions. “After due consideration, Council condemns in very strong terms this act, which is undermining the rule of law and Section 6 of the Constitution of the Federal Republic of Nigeria 1999. “It, therefore, calls on the offending States to ensure that all entitlement of retired judges is fully settled forthwith. “Council further directed State Chief Judges to file reports on compliance, to reach the Council not later than 1 April 2023.”

Sebastine Hon’s suit on judges’ pay

Piqued by the high level of injustice being meted out to judicial officers regarding their salaries which has remained stagnant since 2008, a Senior Advocate of Nigeria (SAN), Sebastine Hon, had in June 2022, dragged the Attorney-General of the Federation (AGF), NJC and two others to the National Industrial Court in Abuja. In the suit, Hon had prayed the court presided over by Justice Osatohanmwen Obaseki-Osagie, for an order compelling the defendants – the AGF, NJC, the National Assembly and the Revenue Mobilisation Allocation and Fiscal Commission (RMAFC) – to increase the salaries and allowances of judges in the country. At that time, Hon had contended that the highest-paid judicial officer in the country – the CJN, currently earns about N3.4 million per annum, far below what is earned by such an officer in other countries. The silk further asked for a declaration that it is unconstitutional for the RMAFC to refuse or neglect to upwardly review the salaries and allowances of judicial officers notwithstanding the changing local and international socio-economic realities. He is also seeking for “an order compelling the defendants to immediately activate measures to urgently review judicial officers’ pay, raising that of the CJN to a minimum of N12 million monthly, N11 million for other Justices of the Supreme Court and Court of Appeal President; N10 million for other Justice of the Appeal Court, the Chief Judge of the Federal High Court and President of the National Industrial Court (NIC).” He equally prayed the judge to compel the defendants to raise the monthly minimum take-home of a judge of the NIC to N9 million; N8 million for Chief Judges of High Court of states and the Federal Capital Territory, while the other judges are entitled to N7 million. Hon also sought an order compelling the RMAFC or any other body assigned its responsibilities, to “in perpetuity, review and continue to embark upon and carry out, in conjunction with the 3rd defendant (AGF), a yearly or at most a twoyearly review of the salaries and allowances of the judicial officers listed above, with a view to making the said salaries and emolument realistic and befitting of the offices and duties attached to/exercised by such offices.” While addressing the court, Hon stated that as a legal practitioner, “who has practised in all the levels of courts in Nigeria, I know that poor pay for judicial officers is seriously affecting the quality of judgements and rulings those officers are delivering and the discharge of other functions associated with their offices.” He further argued that the current economic reality in the country requires that the salaries and allowances of the nation’s judges be urgently improved upon. Hon, who quoted what all judicial officers currently earn as provided under Part IIB of the Schedule to the Certain Political, Public, and Judicial Office Holders (Salaries and Allowances, etc) Amendment Act 2008, said the paltry sums have discouraged him from aspiring to become a judge. He pointed out that it is about 14 years since the salaries and allowances of judges were last reviewed upward in 2008 despite the loss of value of the naira vis-à-vis other global currencies like the US dollar, the British pound sterling and the European Union (EU) euro, etc. “As of November 2008 when the amended Act was in force, the exchange rate between the naira and the US dollar was N117.74 to USD1. “The naira has considerably lost its value over time; but judicial officers in Nigeria have been placed on the same salary scale for up to 12 years since 2008,” he said.

AGF, NASS’ objection

However, the National Assembly, which had prayed the court to allow an out-of-court settlement in the suit, contended through its lawyer, Charles Yoila, that, “it is the law that a pre-action notice be issued to legislative houses disclosing the cause of action and reliefs before such action is brought to court.” He asked the court to strike out the name of the National Assembly from the suit because the proper procedure was not followed. In a similar argument, Ekene Elodimuo, who represented the AGF, adopted his written address and urged the court to dismiss the suit for want of jurisdiction. Mr. Elodimo said the position of the AGF was based on what the law states, insisting that “as laudable as the case is, the claimant has not shown any sufficient interest to file the suit for judges’ welfare.”

Judge’s order on salary review

In her judgement, Justice Obaseki- Osaghae ordered a substantial in-crement in the salaries of the CJN and other judges. She noted with dismay that judges have been victims of great injustice and directed that the judgement should be served on the 2nd defendant (AGF) immediately. While condemning the Justice Minister, Abubakar Malami (SAN), for arguing that judges have no legal right to have their salaries reviewed upwards, Justice Obaseki-Osaghae, directed the RMAFC to immediately raise the salary of the Chief Justice of Nigeria (CJN) to N10 million monthly from the current N3.4 million per annum, said to be far below what is earned by his counterparts in other countries. The judge also ordered the RMAFC to review the salaries of other Heads of Courts and their judges ranging between N9 million to N7 million monthly.

Suits over unpaid entitlements of retired judges

Sometimes in April 2022, Justice Samuel Candide-Johnson (Rtd) who served under the Lagos State Judiciary had initiated a suit against the Lagos Government for the payment of his pension, gratuity, and other entitlements, before the Lagos Division of the National Industrial Court, Ikoyi, presided over by Justice Maureen Esowe. According to his statement of claims, the retired judge stated that his monthly salary and other consolidated allowances as recorded in his last payslip stood at N749,166.66 net earnings and N561,777.64. The retired jurist further stated: “The annual salary of one of the claimant’s domestic staff is N600, 000.00 at N50, 000 monthly. The claimant also received the sum of N5, 414,220.00 as furniture allowance on May 26, 2021. Thus, the annual salary of four of the claimant domestic staff is N2, 400,000.00.” The retired judge while insisting that in accordance with constitutional provisions of and the Pension Rights of Judges Act, he was entitled to a minimum lifetime pension of N21,145,551.6, urged the court to declare that he was entitled to the payment of his pension, severance gratuity, and other entitlements and that the governor should calculate his entitlements and pay them forthwith. He equally asked the court for an order directing the governor to pay N10 million in damages for failing to pay his pension and severance gratuity in accordance with the law. However, in their reply, the Governor and the Attorney General, who are the 1st and 2nd respondents, exonerated themselves from the action by filing a motion on notice, stating that the claimant’s action as constituted discloses no reasonable cause of action against them. They further contender that “the administration and payment of pension of retired judicial officers have been transferred to the third defendant (Judicial Service Commission) pursuant to the Pension Right of Lagos State Judicial Officers Law Ch.P3, Volume 9, Laws of Lagos State 2015.” The two respondents further maintained that the claimant belongs to the third arm of government, the judiciary, which has been constitutionally bestowed with its independence and financial autonomy that is sacrosanct, saying “Sections 291(3) and (4) of the Constitution recognised the application of State’s law in the administration and payment of pension of retired judicial officers, the claimant inclusive.” They further argued that “all the reliefs being sought by the claimant cannot be granted against them as they cannot implement the Federal Acts heavily relied on by the claimant. In its defence, the third defendant, the State Judicial Service Commission, urged the court to dismiss the suit, as it is vexatious and lacking in merit. In its 20-paragraph statement of defence, the third defendant stated that the Lagos State government is not mandated to adopt the payment of the retirement benefit of judicial officers as contained in Sections 291(2) and 3(a-c) stricto sensu (In the narrow sense). The JSC stated: “The delay in the payment of the claimant and other affected retired judges’ benefits is due to administrative impediments. The third defendant is working earnestly with other agencies of the first defendant to ensure that the claimant and other affected retired judges receive their entitlements in good time after all administrative issues must have been resolved”. Due to the consent of parties, Justice Esowe adjourned further proceedings in the matter to May 9, 2023 for a report of settlement. Other respondents in the suit aside the Lagos State Government, are the state’s Attorney General and Commissioner for Justice, Moyosore Onigbanjo (SAN); the Lagos State Judicial Service Commission; and the National Judicial Council (NJC). In a similar development, sometimes in 2016, no fewer than thirty-two retired judges, including five retired State Chief Judges in Anambra State, led by Justice Godwin Ononiba (retd), dragged the then Anambra State Governor, Willie Obiano, to the National Industrial Court of Nigeria in Awka for non-payment of their severance gratuity, upward review of pensions, arrears of housing allowances and overall welfare. Equally joined in the suit marked; NICN/Awk/43/2016 filed by their lawyer, Gabriel Udoka Moneke, is the Attorney-General of Anambra State. Sadly, of the 32 retired judges, 13 of them are dead, while 19 are still alive, including five former chief judges. The former retired Chief Judges are; G.U. Ononiba, C.J. Okoli, Nri- Ezedi, E.A. Nzegwu and P.A.C Obidigwe who were members of the Association of Retired Judges of Anambra State. Part of the suit reads: “You are hereby commanded that within fourteen days after the service of this complaint on you, inclusive of the day of such service, you do cause an appearance to be entered for you in an action at the suit of HON. JUSTICE G.U. ONONIBA C.J. (Rtd) & 31 Ors, and take note that in default of your so doing, the claimants may proceed therein, and judgment may be given in your absence. The claimants prayed the court for: “A declaration that each of the 1st-19th claimants and each of the estates of the 20th to 32nd claimants are entitled to be paid severance gratuities based on 300 percent of each claimant’s annual basic salary while in active service. “A declaration that each of the 1st to 19th claimants and each of the estates of the 20th to 32nd claimants are entitled to be paid housing allowances per annum and in the tune of 200 percent of each claimant’s annual basic salary. “A declaration that the 1st defendant does not have the power to amend, alter or vary the provisions of an Act of the National Assembly and in particular the “certain political, public and judicial office holders (salaries and allowances, etc) (Amendment) Act No. 1 of 2008 which took effect from 1st February, 2007”. “A declaration that each of the 1st – 19th claimants and each of estates of the 20th to 32nd claimants are entitled to an upward review of each of the claimant’s pension in line with Section 210(3) of the constitution of the Federal Republic of Nigeria. “An order of the court directing the defendants to pay to the 1st- 19th claimants and the estates of 20th-32nd claimants forthwith their severance gratuities, based on 300% of the annual basic salary of each of the claimants while in active service. “An order of the court directing the defendants to pay the 1st-19th claimants and the estates of the 20th to 32nd claimants forthwith the arrears of their housing allowances based on 200% of their annual basic salary. “An order of the court directing the defendants to recompute the pensions and gratuities of the claimants based on 200% of their annual basic salaries as housing allowance. “An order of the court directing the defendants to pay to the claimants the arrears of their respective pension and gratuities from the withheld 100% of their annual basic salary as housing allowance. “An order of the court directing the defendants to pay to each of the 1st-19th claimants and the estates of the 20th to 32nd claimants, all the balance and arrears of their pensions which would have accrued to them had the pensions been reviewed upward in line with the provision of the constitution and the directives of the salaries and wages commission”. According to the retired judges, they had at different times meritoriously and successfully served as judges of the Anambra State High Court and Customary Court of Appeal, but were forgotten and abandoned without payment of their due benefits, allowances and entitlements.

Lawyers speak

Reacting to the development, a human rights crusader and Senior Advocate of Nigeria (SAN), Chief Mike Ozekhome, who gave backing to the call by the NJC for state governments to pay the retired judges noted that; “It is also a shame they can be subjected to this kind of treatment over pensions and gratuities. Before now, they could not talk while they were in service, and with their actions, they were also speaking for serving judges”. On his part, Femi Falana (SAN) argued that governments cannot confront judicial corruption if retired judges are owed pensions for months. In his words: “You are simply telling serving judges to take care of the rainy day by engaging in corrupt practices. The Anambra State Government and others involved in the illegality should pay the outstanding pension of retired judges”. Mallam Yusuf Ali (SAN) also expressed deep concerns over the delay in settling entitlements of retired judges. Ali said: “These are people who have worked and are getting old. Do you want them to die before enjoying the fruits of their labour? It is sad. “For me, what the government is doing in this clime is unexpected, if it is true. We only wish they pay them and not allow them to wait for court judgement before receiving their pension”.

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