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.
Interestyielding 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.
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