IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP: HONOURABLE JUSTICE I. S.GALADIMA
Dated: 15th May 2019 SUIT NO: NICN/OW/19/2016
1. Barr. Paul C. Obinatu
2. Kingdom Uzodinma
3. Sunday Chifoanu
4. Kelechi Duru
5. Sylvester Chukwuma Claimants
6. Sabinus Nwaoha
7. Vincent Iheyi
8. Hilary Onuba
9. Christian Iherahu
Oru East Local Government Defendant
C. H. Azuine; U.C Njemanze (Miss)for the Claimants.
A. O. Anyalemechi Chief State Counsel for the Defendant.
This suit was commenced by way of Complaint duly accompanied by other originating processes dated and filed the 8th day of June 2016, wherein the Claimants claimed against the Defendant as follows:
The sum of N35,165,984.04 (Thirty-Five Million, One Hundred and Sixty-Five Thousand, Nine Hundred and Eighty-Four Naira, Four Kobo), being unpaid salaries for the months of May 2011 to July 2012, due and payable to the Claimants as Leaders and Members respectively of the Legislative Council of the Defendant, which the Defendant had failed, refused and/or neglected to pay despite repeated demands.
The sum of N55,240,198.04 (Fifty-Five Million, Two Hundred and Forty Thousand, One Hundred and Ninety-Eight Naira, Four Kobo), being unpaid furniture, severance and other allowances and entitlements due and payable to the Claimants as Leaders and Members respectively of the Legislative Council of the Defendant, which the Defendant had failed, refused and/or neglected to pay despite repeated demands.
Interest on the aforesaid sums at the rate of 10% per annum from the date of judgment until the judgment is liquidated.
The Defendant filed its defence on 7/2/2017 vide an application for extension of time.
SUMMARY OF THE CAUSE OF ACTION:
The Claimants were elected as councilors of the various wards forming the legislative council of the defendant local government area on 7/8/2010 for a fixed tenure of 2 years. Consequently, they were issued with Certificates of return by the Imo state Independent Electoral Commission (ISIEC). The claimants’ case is that they were only paid their salaries for the months of August 2010 to April 2011, while salaries for the period of May 2011 to July 2012 remain unpaid to date, after the Governor of Imo State dissolved all the democratically elected local Government Councils in the State upon assuming office on 29/5/2011.
The 1st Claimant testified as CW1 and adopted his written deposition of 8/6/2016, on 9/11/2018. He tendered 5 documents as exhibits in the course of this trial thus:
Exhibit C1(a-i)—claimants’ certificates of return from ISIEC.
Exhibit C2—CTC of the Court of Appeal’s judgment.
Exhibit C3—remuneration package by RMAFC.
Exhibit C4—imo state government circular
Exhibit C5—pre-action notice dated 24/2/2016
CW1 was cross-examined on 16/11/2018, and the claimants closed their case on that same day.
The Defendants on 25/1/2019 called one witness, Obodozie Edwin who adopted his written deposition of 7/2/2017 but did not tender any documents as exhibits. The claimants’ counsel cross-examined him on that day. With the close of trial, parties’ counsel were ordered to file their final addresses in compliance with the Rules of this Court. The final addresses of both counsel having now been duly filed and served were adopted on the 11/3/2019 and adjourned to today, the 15/5/2019 (65 days later), for delivery of judgment.
DEFENDANT’S FINAL SUBMISSIONS:
The Defendant’s Counsel proposed one issue for determination in his written final address of 18/2/2019, thus: Whether in the light of the evidence before this honourable court the claimants are entitled to their reliefs in this suit?
On this sole issue, Counsel argued that the claimants are not entitled to their claims, owing to the fact that they did not challenge the dissolution done by the Governor in 2011 when it occurred, and they were not parties in the Court of Appeal’s judgment they are seeking to rely on. It was further argued by counsel that the claimants have a duty to prove their case on its strength and not rely on the weakness of the defendant’s case. The cases of Adeniran v Alao, and Enigwe v Akaigwe (citations supplied)were cited and relied upon. Also, counsel contended that the pleadings of the claimants allege that it was the Governor that dissolved the legislative council, the said governor not being a party to this suit, the defendant cannot be liable for his acts.
Further, counsel contended that the CW1 admitted under cross-examination that the claimants never challenged the act of the dissolution done by the Governor, implying that they accepted the Governor’s act, and they cannot be entitled to any remuneration after walking away from their duties.
It was further contended on the strength of NPA v Saidu Ahmed, Aboyeji v Lateju (citations supplied) that exhibit C3 ought to be given its plain and ordinary meaning, which is that, it is a remuneration package for the period of 2007 to 2009 and does not extend to the period during the claimants’ purported tenure. Thus, there is accordingly nothing before the court to justify the claims made by the claimants.
At this point, counsel proffered alternative arguments in respect of exhibit C3. He stated that the claimants are not entitled to furniture or severance allowances that is paid once every four years, and at the completion of tenure respectively, because the claimants’ tenure was for only two years. Similarly, counsel submitted that exhibit C3 did not provide for security, imprest and recess allowances, an indication that the documentary evidence in this suit does not support the oral evidence of the claimants.
Also, counsel submitted that the claimants who had admitted that they did not challenge the dissolution of their legislative council cannot rely on exhibit C2, as they were not parties to the suit, and in the event that they are entitled to rely on it, this extant suit ought to be dismissed for being an abuse of court process, per PDP v Umeh (No. 1)(citation supplied).
In conclusion, counsel submitted that the claimants have failed to prove their claims, and are not entitled to recess allowance and or council leader’s “imprest” as these are subject to funds availability, and the claimants never went on recess having not been at work. I was urged to dismiss their suit entirely.
CLAIMANTS’ FINAL SUBMISSIONS:
The claimants’ Counsel on 6/3/2019 filed his final address, in which two issues were formulated for determination as follows:
Whether by the pleadings and evidence led, the claimants are entitled to the reliefs sought in this suit?
Whether the Governor of Imo State has the powers to dissolve democratically elected local government councils in Imo state?
Issues one and two were argued together by the learned claimants’ counsel. It was first submitted that the defendant admitted facts pleaded by the claimants in paragraphs 3, 4 and 9 of their statement of facts about their election, swearing in, and their remuneration package, in addition to the defendant’s admissions, CW1 accordingly led unchallenged evidence in proof of their claims.
More so, counsel submitted that the defendant pleaded contradictory facts in its pleadings, by stating on one hand in paragraph 3 that the claimants are not entitled to severance and other allowances, and on the other hand in paragraph 4 stating that the claimants were paid their furniture allowance before the dissolution of the local government councils. It was further submitted that by reason of section 138 of the Evidence Act, the burden of proving any furniture allowance and May 2011 salary was on the defendant, who did not discharge such burden.
Again, counsel argued that the claimants are entitled to their claims because the Governor has no power to dissolve Local Government Councils, per Eze v Governor of Abia State (citation supplied). In the same vein, counsel submitted that the claimants despite being prevented by the defendant, continued in their official duties till the end of their tenure. That the assumption that the claimants did not serve their unexpired tenure, was owing to the fact that their tenure was unduly truncated by the illegal act of the Governor, and the claimants whose rights have been infringed are entitled to a remedy. See Bello v A.G. Oyo State, Labode v Otubu (citations supplied).
Furthermore, counsel submitted that by virtue of order 14 (1)&(3) of the NICN Rules the issue of non-joinder of the Governor of Imo state does not defeat this suit.
Likewise, counsel argued that this suit is about unpaid salaries and allowances not about the dissolution of local Government Councils, and there was a ruling delivered on 25/9/2017 by Justice Anuwe which had not being appealed against, to the effect that the claimants do not have to challenge the dissolution of their legislative council before bringing any action for their unpaid salaries.
Finally, counsel urged the court to discountenance the arguments of the defendant’s counsel and grant the reliefs sought by the claimants.
DEFENDANT’S REPLY ON PONTS OF LAW:
In this Reply filed on 12/3/2019, counsel reiterated his earlier positions in his final address, and further submitted that the claimants are not entitled to imprest which is the cost of running an office. Accordingly, if someone ceases to run an office he cannot be entitled to imprest. Counsel urged the court to disregard the claimants’ issue two as this court lacks the jurisdiction to determine the dissolution of elected legislative councils.
Also, counsel urged the court not to rely on the case of Ohakim v Imo State Government NICN/OW/59/2014, because the facts in that case are distinguishable from the instant case. Counsel once more submitted that the claimants have failed to prove their case.
Having heard the submissions of both counsel and carefully considered the pleadings and evidence in this suit, I find that only one issue calls for resolution, that is: whether the claims in this suit should be granted?
The claims of the Claimants are for salaries from May 2011 to July 2012 and other allowances they were purportedly entitled to as former Councillors of the Defendant Local Government.
Their case is that they were elected Councilors of the Defendant in 2010 for a two year tenure and their salaries and allowances were fixed by the Revenue Mobilization Allocation and Fiscal Commission. However, the Defendant did not pay them their furniture, severance and other allowances in addition to their salaries from May 2011 to July 2012. See Paragraph 3, 6, and 9 of the statement of facts.
The fact that the claimants were elected as councilors was admitted by the defendant in paragraph 1 of the statement of defence.
In proof of these claims, exhibit C3 was tendered. Exhibit C3 is captioned: “Revenue Mobilization Allocation and Fiscal Commission Remuneration package for political, public and judicial office holders (Feb., 2007—date)”
On the face of this document it is obvious that the defendant counsel’s submission that the remuneration package is for the period of 2007-2009 and does not extend to the period of the claimants’ tenure, is wholly erroneous and is hereby discountenanced. The Claimants also averred that by virtue of exhibit C3 pleaded, the 1st claimant as the legislative leader of the Council is purportedly entitled to:
salary at N275,094.34 per month multiplied by 15 months i.e from May 2011 to July 2012 (expected expiration date of their tenure from office);
furniture allowance N2,433,900.
severance allowance N2,433,900.
security votes for 15 months at N50,000 per month.
council imprest for 15 months N300,000 per month.
recess allowance for two years N162,260.00.
sitting allowance N50,000 weekly security committee meetings for 64 weeks.
council leader imprest for 15 months at N250, 000.00 per month
all totaling N 21,356,475.00.
Likewise, the 2nd claimant as deputy leader of legislative council is purportedly entitled to:
salary N 273,625 per month for 15 months;
furniture allowance N 2,430,000;
severance allowance N 2,430,000;
recess allowance for two years N 162,000;
Totaling N 9,126,375.00.
In the same vein, the 3rd to 9th claimants are each purportedly entitled to:
furniture allowance N2,280,288;
severance allowance N2,280,288;
recess allowance 2 years N152,015.2;
Total of N59,923,332.07.
In paragraph 4 of the statement of defence, the Defendant averred that the claimants were paid their furniture allowance before the dissolution of the local government councils. Also, in paragraph 6, the Defendant averred that the Claimants are not entitled to receive any salaries from the time they vacated office in May 2011.
The Defendant denied the Claimants’ averment that they had not been paid their salaries from May 2011 to July 2012 as well as their furniture allowances. It was expected that the Defendant in view of its denial, will proceed to show evidence of the payment of the said May 2011 to July 2012 salaries including the Claimants’ purported unpaid furniture allowances. Immediately the Claimants averred that they had not been paid, the burden shifted to the Defendant to prove that the Claimants did indeed receive those payments.
However and instinctively, at the close of trial of these proceedings, this Court suo motu ordered the Defendant Counsel to submit any evidence of payment of salaries to the Claimants. Consequently, the Defendant’s Counsel produced a document titled “SUBMISSION OF THE PAY SHEET FOR FORMER COUNCILLORS OF ORU EAST LGA” dated 11th February, 2019. Upon inspection by this Court, it was discovered that the salary pay sheet covers the period from August, 2010 to April, 2011. As such, given the available evidence suggesting that these Claimants were only paid for the periods of August, 2010 to April, 2011, there is therefore no more doubt on whether they were paid anything beyond April, 2011. I also painstakingly scrutinized the said pay sheet and other documents which are a summary of salary for former councillors of the Defendant Local Government, personal emolument salary book for April 2011 as well as payment schedule for the Claimants but could not find in any of these pieces of evidence the payment of furniture allowances as contended by the Defendant in paragraph 4 of their Statement of Defence and paragraph 13 of its deposition of 7/2/2017.
The principle remains incumbit probatio qui dicit, non qui negat, which means the burden of proving a fact rests on the party who asserts the affirmative of the issue, and not upon the party who denies it – for a negative is usually incapable of proof. See Omisore v Aregbesola (2015) All FWLR (pt 813) 1673 at 1728, A-B. The effect is that this averment of the Claimants that they are yet to be paid arrears of salaries and their furniture allowances, has not been disproved by the defendant.
From all the evidence before me, it is crystal that the claimants were elected as councilors for a two-year tenure and returned by the Imo State Independent Electoral Commission (ISIEC). Section 168 of the Evidence Act provides that where any official act is shown to have been done in a manner substantially regular it is presumed the formal requisites for the validity were complied with. The Revenue Mobilization Allocation and Fiscal Commission is the body vested with the power to determine the appropriate remuneration for political office holders in Nigeria, including Councilors and they have shown this with the production of exhibit C3.
There is no doubt that the duty of a Claimant is to adduce evidence to prove his reliefs, and support his pleadings. The proof before me is the instrument (i.e. exhibit C3) entitling the Claimants to the quantum of the sums they claim. The Defendant did not challenge the applicability of exhibit C3, but merely stated that the Claimants are not entitled to salaries and allowances they did not work for because the State Governor purportedly dissolved their legislative council terms on May 29, 2011 immediately upon assumption of office.
It is unquestionable that the dissolution of legislative councils by the Governor unlawfully abridged the tenures of the claimants. The law is quite settled in this regard – where a contract of service is for a fixed term or tenure, the employee cannot be removed save for misconduct; frustration of the contract of service; or where the employer dies; and or when the contract of such employee is determined before the effluxion of the term agreed, the employer shall be made to pay the employee the full salary and allowances he/she would have earned for the period of his/her fixed tenure - C.O.E. Ekiadolor v Osayande (2010) 6 NWLR (pt 1191) 423 at 449, G-H.
The justice of the extant case would be served in my thinking, by regarding these Claimant as retired councilors for the purpose of enabling them to be paid their salaries and allowances. See Oyeyemi v Owoeye (2017) 12 NWLR (PT 1580) 364 at 404 which has similar facts and circumstances as the instant case.
It is ultimately my finding therefore, that the Claimants have made out a case for the payment of their salaries and allowances considering the provisions of RMAFC Remuneration Package for political Public and judicial Office Holders applicable from February 2007 to date. Being political office holders who were democratically elected to hold office, their tenure in office is presumably fixed
The only question to be answered now is: What exact amount does RMAFC determine in Exhibit C3, to be the Claimants’ due entitlements?
Now, Exhibit C3 provides that a legislative leader of a local government council is entitled to N260,292.08 as monthly salary and regular allowances. I find and hold that the 1st Claimant is therefore entitled to be paid the sum of N3,904,381.20 (at N260,292.08 × 15 months) as his May 2011 to July 2012 salaries including the regular allowances. For his other allowances, I find that the 1st Claimant is entitled to the sums of N2,433,900 and N162,000 being his respective furniture and leave allowances, totaling N6,500,281.20.
Also provided in Exhibit C3 is the remuneration of the 2nd Claimant who was the deputy legislative leader of the Defendant legislative council, which is N257,850.00 as monthly salary and regular allowances. I find and hold that the 2nd Claimant is thus entitled to be paid the sum of N3,867,750 (i.e. N257,850 × 15 months) as his May 2011 to July 2012 salaries and regular allowances. For his other allowances, I find that the 2nd Claimant is entitled to N2,430,000 as his furniture allowance and N162,000 as leave allowance, totaling N6,459,750 only.
For the 3rd —9th Claimants, I hold that each is entitled to N3,705,370.5 (that is, N247,024.70 multiplied by 15 months) as his May 2011 to July 2012 salaries and regular allowances. For their other allowances, I hold that each of the 3rd -9th Claimants is entitled to be paid N2,280,228 as furniture allowance and N152,015.2 as leave allowance. Each of the seven 3rd to the 9th Claimant is thus entitled to be paid the sum of N6,137,613.70 (i.e N42,963,295.90 for the 3rd to the 9th Claimants). The grand total of monies owed these claimants is N55,923,327.10
The issue now is whether the Claimants in the circumstances of this case are entitled to the severance gratuity provided for by Exhibit C3?
Obviously, from the aforementioned decided cases referred to earlier, the only monies each of these Claimants who were unlawfully removed from their offices is entitled to be paid is “the full salary he would have earned for the period of his fixed contracted term”. See again C.O.E. Ekiadolor v Osayande (supra). The mode of payment of severance gratuity in exhibit C3 is stated to be “after successful completion of tenure”.
The nature of the severance gratuity that exhibit C3 contemplates is a terminal benefit paid as compensation upon the completion of tenure, as against a termination benefit usually accruable on a premature termination of an employment contract.
A terminal benefit compensating for completion of tenure cannot be paid as compensation for loss of office, as claimed by the claimants in this case. Thus, it is my considered view that the severance gratuity does not fall into the category of allowances accrued during the tenure of the claimants, to enable them to be awarded same now that their contracted tenure was unlawfully determined. Accordingly, I find that the claimants are not entitled to be paid severance gratuity.
With respect to the claims for security votes, council imprest, recess and sitting allowances, they are all denied and dismissed as they have not been proved. Merely stating or itemizing a bare claim as was set out by the Claimants in their paragraph 12 of their pleadings without adducing evidence to prove falls short of the standard of proof required in civil cases by section 134 of the Evidence Act. The law is trite and was restated by the Court of Appeal in Ben v N.S.I.T.F (2015) All FWLR (pt 780) 1230 at 1264, C. thus:
“…averments in pleadings are not evidence and not a proper substitute for evidence in proof of any fact alleged. Thus, pleadings not backed by evidence are valueless”
See also Apena v Aileru (2015) All FWLR (pt 790) 1256 at 1270.
For the avoidance of doubt, the Defendant is hereby ordered as follows-
Pay to the 1st Claimant as Council leader, the sum of N3,904,381.2 being his unpaid May 2011 to July 2012 salaries and regular allowances for 15 months at N260,292.08 per month.
Pay the 1st Claimant as Council leader the respective sums of N2,433,900 and N 162,000 being his furniture and leave allowances totaling N6,500,281.20.
Pay the 2nd Claimant as deputy Council leader the sum of N3,867,750 being his May 2011 to July 2012 salaries and regular allowances for 15 months at N254,850.00 per month.
Pay the 2nd Claimant as deputy Council leader the respective sums of N2,430,000 being his furniture allowance and N162,000, his leave allowance totaling N6,459,750.00.
Pay the seven 3rd – 9th Claimants, the collective sum of N25,937,593.50 being their May 2011 to July 2012 salaries and regular allowances at N247,024.70 per month per councillor, i.e N247,024.70 multiplied by 15 months multiplied by 7 claimants.
Pay the seven 3rd – 9th Claimants the collective sum of N15,961,596.00 being their furniture allowances at N2,280,228 per person and N1,064,106.40 collectively at N152,015.20 per person, being their leave allowances. Each of them is entitled to be paid N6,137,613.70 per person.
Grand total of 1 – 6 above is N55,923,327.10
The Defendant is hereby ordered to pay the Claimants, the above sum total in 7 above, within 60 days of this here judgment which shall in default, attract 10% interest per annum until fully liquidated.
Finally and regardless of the outcome of this here judgment, I commend all counsel involved in this cause particularly the gentlemen and public defenders from the Ministry of Justice for their respective roles in the prosecution of this matter timorously. I am proud to say that they set a new bar in the manner this matter was conducted since it first came before me on 29/10/18 to today and if my saying so is worthwhile, they are the finest crop of public defenders this country can find.
Delivered in Owerri this 15th day of May, 2019.
Hon. Justice Ibrahim Suleiman Galadima