PAYMENT OF SEVERANCE ALLOWANCES AND PENSIONS TO POLITICAL OFFICERS OR APPOINTEES: A CRITIQUE OF THE CASE OF GOVERNOR OF KOGI STATE AND 3 ORS v NUHU AHMED AND 5 ORS (2019)3 AAQR 1__ Ismail Khadijat Moromoke

1.0 Introduction

Political office holders had never dreamt that a time bomb would explode against them. The judgment of the penultimate court according to hierarchy of courts in Nigeria released the unexpected in 2019 and it was received with mixed feelings. Everyone was surprised to know if the court of appeal as laid down a new principle of law. It is expedient to critically evaluate and analyze the court of appeal judgment in this instant case in line with the justifiability of the payment of severance allowances and pensions to public office holders ending with some key recommendations.

2.0 Background of the Fact of the Case

The appelants in this instant case formerly the defendants was not satisfied with the judgment of R.B. Hanstrup J on 31st October, 2017 at the lower court- National Industrial Court held at Abuja which was in favour of the claimants now the respondents that they are entitled to severance allowances and pensions. Aggrieved, the appellants filed a notice of appeal without the leave of the court since the grounds of appeal are not bothering on fundamental rights as contained in section 243(2) and (3) of the 1999 Constitution of Federal Republic of Nigeria as altered and the appeal is of right. Both parties filed their respective briefs of arguments upon two grounds wherein the appellant raised two issues while the respondents raised one only. Justice Emmanuel Akomaye Again(JCA) who delivered the judgment on the case made an obiter which goes into the root of the appeal which should have quashed the case but it was heard on merit without the court having jurisdiction. This has led to injustice to law, the court and the parties involved.

3.0 Appraisal of the appeal judgment

Regardless of the errors, the judgement of the court of appeal is applaudable. It laid down some principles of law and one of which is that originating summons can be used in cases where the substantial disputes of facts can be resolved on the affidavits and accompanying exhibits without the need to recognize to oral evidence to resolve them. Also, it reinstates the provisions of section 131(1) and (2) of the Evidence Act 2011 on burden of proof in civil matters.

The court of appeal was able to reversed the ruling of the trial court when it held that “since the claimant’s evidence failed to establish their case, the trial court should have dismissed the claimant’s case, instead of resorting to calling in aid, general, terse and speculative denials of the claimant’s case in the defendant’s counter affidavit, characterised them as substantial dispute of facts and on that basis give the claimants another opportunity to represent their case by way pleadings, after a full hearing of their case in merit”. This overruling judgement couldn’t be reach if the justices of the court of appeal where not embodiments of law.

4.0 Analysis and Critique of the Court Decision

4.1 Law is Moral: How sound? In delivering the judgement, the learned Justice Emmanuel, JCA held that the payment of severance allowances to the respondents after their tenure in their respective public offices is morally wrong. The court went further to hold that “the fact that the right (to severance allowances and pensions) is provided in the constitution and thereby made a constitutional right, does not make it morally right.

The questions now are; is the law a moral norm? Has morality taken the position of law? Is law not going to be applicable if it is not in conformity with people’s moral behaviors which are subjective? The penultimate court held to the effect that the payment of severance allowances and pensions to public office holders/appointees is legally right but morally wrong.

This is so glaring that everyone sees the court as court of moral not of law! Morality and law are two different concepts that are different from each other. Though morals should flow from the law, the law should remain supreme over and above morality. It is on this flowery that the court of appeal ruled against the respondents. It is so clear that the judgement can not stand the test of time definitely!

4.2 Jurisdiction: The Life Wire Aside from the fact that the judgement was laid down on a watery stand, the court itself proclaimed that it doesn’t have jurisdiction to hear the suit. Although, the issue of jurisdiction was raised suo motu by the court by the way, it goes into the root of the court to hear and determine this instant case. In fact, the court affirmed when it held inter alia that “as it is, this appeal is incompetent and this court lacks jurisdiction to entertain it”. By going ahead to hear the matter on merit, everything including the judgement delivered is deemed to be an exercise in futility and will be marooned in the miasma of nullity.

Even, Obaseki, JSC(as he then was) propounded in OLOHA v AKEREJA(1988)3 NWLR (PT. 84) 508, (1988)7 S.C (PT.1) that “…there is no justice in exercising jurisdiction where there is none. It is injustice to the law, to the court and to parties so to do”. Since the court does not have jurisdiction to determine this instant case in the first instance, severance allowances and pensions to public office holders/appointees should subsist.

5.0 Conclusion and Recommendations

The court of appeal judgement in this case is clothed with application of legal principles and depicts clear and sound application of law. However, the law is settled that issue of jurisdiction is very fundamental and without it, the whole proceedings of the court will be wasted efforts. The ground on which the court held that the respondents are not entitled to severance allowances and pensions is unknown to law and it may be reversed on appeal to supreme court.

It is only the justices of the supreme court that are regarded as infallible since they are final. On this, the following recommendations will enhance the justifiability of the payment of severance allowances and pensions to public office holders in Nigeria and it include:

1. Until the constitution is amended, the issue of severance allowances and pensions to public office holders remains justified; and

2. An Act of the national assembly should be enacted to facilitate the regulation of severance allowances.

Ismail Khadijat Moromoke A 200 level common and Islamic law student University of Ilorin, Ilorin, Nigeria https://www.linkedin.com/in/khadijat-moromoke-8a72a7213 and reachable via moromokekhadijat@gmail.com and 07014015871