Dollar Salaries In Nigeria: Why the Court of Appeal Goofed

The Daily Trust Newspaper online account summarizes the facts regarding the Court of Appeal judgment in the manner following herein:

“Recently, the court of appeal sitting in Abuja ruled against the three major actors in the saga – Dr Okonjo-Iweala, Ambassador Olufemi Adeniji and former president Olusegun Obasanjo. While the court upbraided the immediate past president for abusing his power under the law and engaging in an action that amounted to irresponsible infraction of the laws of the land, it ordered Okonjo-Iweala and Adeniji to refund N206 million, being the excess of the salaries they received, denominated in United States dollars, while their tenure lasted, to government coffers….

By this judgment, Okonjo-Iweala is to refund N140,823,660 while Adeniji will pay back N64,823,660.”

Lack of Due Process

It is my observation that in rushing to judgment, the revered Court of Appeal omitted one important facet of our law, Due Process. The Court of Appeal did not allow the parties directly affected an opportunity to be heard in the matter.

The 1999 Constitution of the Federal Republic of Nigeria provides in section 36:

36. (1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality. (2) Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law –

(a) provides for an opportunity for the persons whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person; and

(b) contains no provision making the determination of the administering authority final and conclusive.

Not having read the Court of Appeal decision, we assume that the Daily Trust’s account above is accurate substantially on the facts. The facts did not disclose that Okonja-Iweala or Adeniji were parties to the action. I presume therefore that they were not parties to the suit, nor were they served neither with summons nor given a chance to defend themselves in person or through attorneys of their choice concerning their civil right to enter into a contract with the government as provided by the constitutional provision above.

Background

Gani Fewehinmi (SAN) had sued the Federal Government before the Federal High Court that in paying Okonjo-Iweala the annual salary of 247,000 dollars, equivalent to N36million, while Adeniji received N120,000 dollars, translating to N17million. He further contended that it conflicted with the provision of the Code of Conduct for Pubic Officers which frowns against maintenance of foreign account while holding public office. According to him, the approval of different salary scale for the two ministers also offended an Act of the National Assembly tagged “Certain Political, Public and Judicial Office Holders (Salaries and Allowance, etc) Act No 6 of 2002” which “prescribes a yearly salary of N794,085 for every minister of the Federal Republic of Nigeria”….

The court then granted Fawehinmi’s relief. The Court of Appeal ruled that since government failed to file any counter affidavit at the Federal High Court, it was assumed that all the facts pleaded in the case were admitted as correct. The court then asked Okonjo-Iweala and Adeniji to refund the excess of what they took as salaries while in office. But nowhere does it mention that Okonjo-Iweala and Adeniji were joined or ordered to be joined as parties to this suit that severally affected their interests. They were therefore, not given an opportunity to be heard. This is wrong in law.

Salaries Code

Certain Political, Public and Judicial Office Holders (Salaries and Allowance, etc) Act No 6 of 2002 prescribes the yearly salaries for every minister of the Federal Republic of Nigeria. What the law does not mention is that the Federal government cannot pay any other emoluments or benefits like, estacode (travel allowance) which is paid to all ministers when they travel out of Nigeria. Are all the other ministers to return the amounts paid them over and above their salaries in Dollars? I don’t think so.

In a competitive global village where we need to be competitive to attract talent to Nigeria, would inducement by way of salaries and allowances to match selected professionals be prohibited by law? I do not think that was the intention of the Constitution. President Obasanjo in a special consideration, hired technocrats who were established and living outside Nigeria to bring their expertise into the government in the key areas that they were qualified and gainfully employed in institutions with a global reach, the World Bank and United Nations. These technocrats had commitments and a life in the US, inclusive of mortgage payments, school fees and sundry quality of life issues that would hamper their determination to serve. The resolution to the problem was to pay them from the Nigeria Diaspora Fund of the United Nations Development Programme (UNDP) contributed by international agencies for very purpose of attracting some of the best hands in Diaspora to return and work for their countries with their wealth of experience. This Fund is outside the budget of the government of Nigeria and as such cannot be governed by the Appropriation Laws of the Constitution. If the money did not belong to the Federal Republic of Nigeria, a ‘refund’ is inappropriately ordered to the Federal Republic of Nigeria. If it is ordered returned to ‘source’, that is the very purpose to which the fund was contributed to augment.

Value for money

The Daily Trust account concludes:

“The leadership of Okonjo-Iweala of the economic team brought about changes in the banking sector that saw the nation’s bank recapitalising such that they can compete with their counterparts abroad. Before then, we were told that the Nigerian banks were no banks in the real sense of it as they were merely doing buying and selling. The former finance minister also helped Nigeria to overcome her debt burden. When she assumed office, the nation’s debt to Paris Club hovered between $30 billion and $35 billion. But by the time she left, the debt problem had been resolved, leaving only the London Club debt which was also on the verge of being paid. The Paris Club debt was paid at a big discount as Nigeria paid only $12 billion of the debt.”

What the above means is that the Federal government got good value from the transaction as Ngozi Okonjo-Iweala delivered upon the agreement and expectation. On the image of the Country, Nigeria’s image has improved from being a pariah nation to one that is mentioned in every African discourse as an emerging economy, so Adeniji’s hire was justified too.

Rationale for Recruitment Abroad

It is not this writer’s submission that Diaspora Nigerians are necessarily better or more intelligent than those who live within Nigeria. There are indeed many smart people in Nigeria who if given the education, tools and opportunity, might really shine and be very productive. But our systems in Nigeria are mostly dysfunctional: Roads are not motorable; Universities not fully functional; electricity, epileptic; internet connectivity, minimal so those living in Nigeria operate from a more restrictive pool of knowledge skills and cognate professional experience. Further, the gap between developed nations and the developing nations, Nigeria inclusive is like the Stone Age and the Space Age.

The cream they say rises to the top, therefore the more ambitious Nigerians are likely to seek the Golden Fleece in the same way as our parents left their villages to throng the cities for better opportunities. Diaspora Nigerians who have worked and immersed themselves into their host communities would have imbibed a new work ethic (not leaving work at 2:00pm to close for the day). Many who could not type or use the computer, become computer literate as a necessity, many are forced to find newer and more competitive ways of adding value to their lives by emulation of the indigenes of their host communities. Nigerians in sum, are forced to improve or perish while abroad. Also, because some of the best schools are outside Nigeria, those who are privileged to attend such schools are conclusively better trained.

Besides, as a practice of governance, Nigeria hires expatriates as consultants and professionals who are paid in Dollars for their services almost all of which is repatriated to the person’s home country. Most of the major contracts of the Federal as well as State governments are denominated in Naira and foreign currency for the professionals. If Nigerians who live outside Nigeria (who send money home often) get the same or better training than some of the expatriates being paid in Dollars for instance, why should they be discriminated against when it comes to negotiating and being paid for valuable services? Could this be reverse racism?

It is true that when compared to their Nigerian counter-parts the sums paid to the Diaspora professionals may seen astronomical, but we need to compare apples to apples here and not be bogged down by pettiness. The laws of contract govern every employment, and so long as the Constitution does not expressly prohibit payment of other emoluments outside said statutes, the spirit of the law would dictate that consideration is made for someone who has for instance a $7,000/month mortgage note to pay as against persons who ordinarily live in Nigeria without such legal obligation or financial burden. More so, if the money paid is not taken from the Federation Account and belongs to an International Agency separate and distinct from the Federal Republic of Nigeria. If Okonjo-Iweala and Adeniji as interested parties had a chance to defend the suit, they would have made their case. The were not allowed a hearing, so the matter in the Court of Appeal falls short of Due Process, a cardinal principle of the Constitution Plaintiff Gani sets out to so defend.