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Critical legal reviews of Maina’s scandal, By Obabueki Iyalekhuosa Davidson

By News Express on 18/05/2018

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At a time in the political history of this country this issue seemed to have been nipped. Perchance, by some instruments at the corridors of power, mention of the alleged disappearance of a whopping N17 billion of the N24 billion the Federal Government set aside for payment of pension liabilities to its workers nationwide, probably by a mysterious calculation, got it’s way under the rug and by somewhat the same mysterious prints of men, the embellished silence over it became the glare of the public.

Political matters indeed and as it may seem have a way of leaping out from the cover lid pot of this country and the public, as well always and readily, do have a go at it; not without having their fair share of opinions anyway.

I am accursed with the law’s conviction, the belief of the law that one who is entrusted with public property or funds as it were, has a corresponding duty to utilise said property or funds for the secured beneficiaries and where it otherwise, bound to account for his public services. Without a filament of doubt, this article will be sustained on these fragile lines of the law and upon it will the writer liaise with its submissions.

The Nigerian public or civil service of the federation is one sector composite of employees working for the government in various departments, agencies and ministries and each entitled to their pension usually upon retirement. The retirement/pension benefits of employees in Nigeria are regulated by the Pension Commission: a body embalmed by law with that sole responsibility. It will therefore suffice to say that the commission is shouldered with the responsibility of ensuring that pensioners receive their retirement benefits as and when due. As the teeth would not chew without a mouth, so is the Nigerian economy enervated and deflated without a public service. As a matter of fact, the economy only gets cracking when the public service is not iced out in the scheme of things.

Keenly, this latter position has been over-fed and well-fattened by section 1(c) of the Pension Reforms Act, 2014. The said section provides as follows:

“Section 1.The objectives of this Act are: …(c) To ensure that every person who worked in either the Public Service of the Federation, Federal Capital Territory, states and local governments or the private sector receives his retirement benefits as and when due.”

Properly guided by the drift of the above section, I need not further strangulate the message of the section as it simply tells us that the commission is to ensure that employees in the Nigerian public service should receive their retirement/pension benefits as and when due.

Notice must, however, be had to the legal fact that section 1 (c) of the Pension Reforms Act, 2014 got impregnated by the Constitution of the Federal Republic of Nigeria, 1999, as amended; and particularly issued out section 173 (1) of the said Constitution. The issue provides as follows:

“Subject to the provisions of this Constitution, the right of a person in the public service of the federation to receive pension or gratuity shall be regulated by law.”

Essentially, the Commission’s responsibility in ensuring that a pensioner in the public service receives his retirement benefits is made possible by the first fact that there must be and is a law regulating the administration of pension reforms in Nigeria and that law has been made possible by a constitutional assertion as read above. That is, a pensioner receives his retirement benefits because the Constitution made it prompt and rightful for there, first, must be a law regulating the receipt of pension benefits by a pensioner in Nigeria.

In continuum, any retirement benefits a person/pensioner is entitled to in accordance with the said law (Pension Reforms Act), such a person/pensioner should not be unlawfully disadvantaged of such benefits, or have the decks stacked against him. This stand is greatly nourished further by section 173 (2) of the Constitution of the Federal Republic of Nigeria, 1999, as amended.

The said sub-section provides as follows:

(2) “Any benefit to which a person is entitled in accordance with or under such law as is referred to in subsection (1) of this section shall not be withheld or altered to his disadvantage, except to such extent as is permissible under any law, including the Code of Conduct.”

As a sub-set to the above point of law, a public officer entrusted to administer pension matters in Nigeria is not expected to abuse his office or occasion any arbitrary act prejudicial to the rights of pensioners. An officer who does so only rides for a fall with the law and fosters his inefficiency.

This contention did not drop as hailstones from above but refuge sought from the fifth schedule, part l, Code of Conduct for Public Officers of the Constitution of the Federal Republic of Nigeria, 1999.

Section 9 provides thus:

A public officer shall not do or direct to be done, in abuse of his office, any arbitrary act prejudicial to the rights of any other person, knowing that such act is unlawful or contrary to.”

Public officers are accorded their semantics in the fifth schedule, part ll, public officers, for the purpose of the Code of Conduct of the Constitution of the Federal Republic of Nigeria in Section 10 as follows:

Secretary to the Government of the Federation, Head of the Civil Service of the Federation, permanent secretaries, directors-general, and all other persons in the civil service of the federation or of the state.”    

Thus, a village reading of sections 9 and 10 above shows that a person appointed chairman of the Presidential Pension Reforms Task Team, to administer pension matters is for the purpose of this section, a public officer, as he is deemed to be part of the civil or public service of the federation.

Like water descending a hill, it flows from above that the commission, as part of its objectives, is bound to ensure that pensioners rightfully entitled by law to their retirement benefits are not unlawfully deprived or disadvantaged or prejudiced of it and that any public officer entrusted with the mandate of administering pension matters, should do same without abusing the office or attempt to worm his way through.

Furthermore, it will be right reasoning to posit that one who misappropriates pension funds, meant for retirees and employees in that category, will be logically said to have unlawfully deprived or prejudicially disadvantaged pensioners who are de jureentitled to retirement benefits. By that stretch of logic, one would still as well be said to have breached the public trust, having misappropriated pension funds meant for retirees and pensioners most of whom may have suffered and died in the process of getting their pensions and gratuities, and some even without success. If not in doubt, I am inclined to align the above point of facts to the position of the law below, as follows:

Pursuant to section 405 of the Penal Code (Cap 224), it is provided that:

Whoever, being in any manner entrusted with property or with any dominion over property, dishonestly misappropriates or converts to his own use that property; or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged…commits ‘criminal breach of trust’.”

It, therefore, means that a person (Maina in this context), who is entrusted with property or pension funds (alleged N24 billion) for the benefit of a person or group of persons (Nigerian retirees or pensioners), dishonestly misappropriates or converts same to his own use (Maina is alleged to have worked in close concert with top government officials and cronies, leading to the disappearance of N 17 billion); and did same in violation of any direction of law prescribing the mode in which such trust is to be discharged (Pension Reforms Act, 2014) such a person is criminally responsible for criminal breach of trust.

These extrapolations are further bolstered with the case of Ibrahim & Ors v COP (2010) LPELR-CA/6C/2007, wherein the ingredients of the offence of criminal breach of trust contained in Section 311 of the Penal Code was made bare thus:

1. That the accused was entrusted with property or with dominion over it

2. That he misappropriated the property; converted such property to his own use and disposed of it

3. That he did so in violation of any direction of law prescribing the mode in which such trust was to be discharged; or any legal contract expressed or implied which he had made concerning the trust; or he intentionally allowed some other persons to do or commit the above stated

4. That he acted dishonestly

This position was also reaffirmed in the cases of Er Joo Nguang and Another v Public Prosecutor (2000) ISLR p 756 at (37) and Onuoha v The State (1988) 3 NWLR (pt 83) 460 (SC).

If there is anything to go by the above inculpatory pointers coupled with an alleged report compiled by the Director of Public Prosecutions, as government case to prosecute Maina, it will be safe-landing to say that the ex-chairman of the Presidential Pension Reforms Task Team, falls prey of the above expression of criminal breach of trust and indeed enraged the law. A public officer entrusted with public resources should always often know that his integrity if he has any is the first and last thing that will be scourged at the instance of any iota of misappropriation of funds.

Furthermore, the fact that as at 2010 – when Maina was appointed chairman of the Presidential Pension Reforms Task Team – to 2013 or thereabout, when he eventually weaseled out of sight and his subsequent dismissal from service, fetch further the belief in the alleged missing amount of money during his employment, especially the fact that he was chairman of the team at the material time. His subsequent appointment, therefore, is cruel to the feelings of the law and will further put the foot of the anti-graft war closer to the grave, if those alleged to be involved are not given the dickens.

No matter the explanation – like that put forward by the Attorney-General of the Federation to Nigerians alleging that upon a court order voiding the warrant of arrest of Maina which was sought by the National Assembly to secure his appearance before the house – the former’s alleged act of certifying the latter fit and the subsequent alleged forwarding of his name to the Ministry of Interior for further scrutiny, and the remaining history that transpired further, puts the dampers on the fight against corruption by the President Muhammadu Buhari-led administration in Nigeria. This goes to show that the Chief Law Officer and Minister of the Government of the Federation slacked and seemingly know not when to put square pegs in square holes.

Faithfully, by the provisions of the Pension Reforms Act, 2014, particularly section 105 (2), the law has been made as plain as a pike staff on the responsibility of the Attorney-General of the Federation on offences appertaining to pension matters as follows:

 “Prosecution for offences under this Act shall be instituted before the court in the name of the Federal Republic of Nigeria by the Attorney-General of the Federation or such officer in the Federal Ministry of Justice as the Attorney-General of the Federation may authorise.”

In an addendum, section 100 (1) of the Pension Reforms Act, 2014 stipulates one of keen interest, amongst other pension offences within the Act, as misappropriation or diversion of pension funds as follows:

“A … person or body who misappropriates or diverts pension funds commits an offence under this Act and is liable on conviction to a fine of an amount equal to three times the amount so misappropriated or diverted, or to a term of not less than10 years imprisonment or to both fine and imprisonment.”

In essence, the attorney-general is first and foremost fortified with prosecutorial powers for pension offences committed by a person or body within the Pension Reforms Act. Particularly and inclusively, his powers extend to any person or body that misappropriates or diverts pension funds as is the case of Maina. Armed with these armaments, one would have expected the Attorney-General of the Federation to have sought an order of injunction from the court restraining or estopping Maina from such appointment or continuing thereof, pending the determination of the allegations of misappropriation of pension funds scandal against him. Rather, trivial and petty legal matters seemed best for the job.

Lucidly, an up-and-doing Chief Law Officer and minister of the Government of the Federation ought to know the enormity of an act whether concealed, blown open or otherwise done as to afford him the chance to act independently.

Already, the status of a public officer has been established above and it is pertinent to mention so as not to malnourish the body of this piece, that public officers have corresponding responsibility to conform and observe the Code of Conduct for Public Officers. This is as provided in section 172 of the Constitution of the Federal Republic of Nigeria:

A person in the public service of the federation shall observe and conform to the Code of Conduct.”

It is implied, therefore, that public officers in the service of the federation are carefully monitored by a code of conduct which demands of them strict adherence. Thus, any public officer in the public service of the federation alleged to have breached the code of conduct for public officers, such a person would have incurred the brows of the law.

Furthermore, it stands to reason to say that Maina at the material time as ex-chairman of the Presidential Pension Reforms Task Team was a public officer and for that purpose, and without prejudice to other extant laws, was controlled to an extent by a code of conduct for public officers. As the law has tutored our reasoning so far, a breach of that code of conduct in our context, breach of trust, ought to be made to the Code of Conduct Bureau. This contention is fruitified by section 12 of the fifth schedule, part l, Code of Conduct for Public Officers, of the Constitution of the Federal Republic of Nigeria 1999, thus:

“Any allegation that a public officer has committed a breach of or has not complied with the provisions of this code shall be made to the Code of Conduct Bureau.”

Suffice to say that on the discovery of the alleged massive misappropriation, the chief law officer and minister of the government of the federation ought to have commenced the prosecution of Maina from the Code of Conduct Tribunal. However, had there been a pending suit in a law court or an impending one, the punishment or sanctions imposed by the Code of Conduct Tribunal would not prejudice the prosecution of such officer or prejudice the penalties that may be imposed by any law where the conduct a criminal offence. This statement has been further pampered by section 18 (3) and (6) of the fifth schedule, part l, Code of Conduct for Public Officers, of the Constitution of the Federal Republic of Nigeria. (3) “The sanctions mentioned in subparagraph (2) hereof shall be without prejudice to the penalties that may be imposed by any law where the conduct is also a criminal offence.”

(6) “Nothing in this paragraph shall prejudice the prosecution of a public officer punished under this paragraph or preclude such officer from being prosecuted or punished for an offence in a court of law.”

This goes to show that the attorney-general or prosecuting officer have various options and leeway without hindrance to prosecuting a public officer that may have affronted the Code of Conduct.

Furthermore, the regulatory and supervisory roles of the Pension Commission seem to be beyond question on paper, even as much to be desired lingers on in view of Maina’s scandal. The principal object of the Commission is as copiously provided in section 18 (c) of the Pension Reforms Act, 2014. The said section provides as follows:

“The principal object of the Commission shall be: …. (c) “To regulate, supervise and ensure the effective administration of pension matters and retirement benefits in Nigeria.”

The above provision shares leanings with section 1 (c) of the Pension Reforms Act, 2014 as the commission is bound in either section to ensure that pensioners receive their retirement benefits as and when due.

In a bid to regulating and supervising the effective administration of pension matters and retirement benefits in Nigeria, section 18 (c) purports the implied addition that any person or body entrusted the responsibility of handling or appropriating funds to pensioners, such should effectively administer the pension funds. That is, a body or person appointed or farmed out the responsibility of managing pension matters and retirement benefits in Nigeria and said person or body fails in that venture, the commission may be said to be caught napping to her responsibilities as it may be implicitly posited that she failed to monitor, regulate and supervise such a person or body in the effective discharge and administration of pension matters.

Apropos to Maina’s appointment as the chairman of the Presidential Pension Reforms Task Team, with the singular mandate to reform the pension system and clear arrears of pension owed government retirees and the subsequent debacle of the project, one cannot then but, lampoon the Pension Commission for its lackluster and insipid supervision and regulation of the administration of pension matters within the said period. The commission cannot in any guise tell the public that she was at all times dutiful and watchful to the activities of the chairman of the Presidential Pension Reforms Task Team, even as the eventual alleged massive looting of pension funds speaks volume of gross dereliction of duty on the part of the commission.

Conclusively, as though issues crop up day-by-day in the political space and leave each of them unattended to, may see Maina’s case end that way, like the botched NNPC brouhaha, and likes. The Federal Government of Nigeria seems to be at loose ends, not knowing what next to do on Maina’s issue than the thought of sweeping it under the rug again, as perceived from his body language. This may be the last resort of the government, as it has always been sweeping sensitive issues under the rug – with so many dusty ones lost underneath - be rest assured that someday and somehow these issues longed sheltered will be swept out and properly made up for attention.

Meanwhile, the Legal Watchmen - as counsel of perfection to the Presidency – adjures that those persons found to be connected to Maina’s circle should be made to face the music. And it’s high time they lower the boom against them.

Source News Express

Posted 18/05/2018 6:58:02 PM


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