IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE JOS JUDICIAL DIVISION
HOLDEN AT JOS
BEFORE HIS LORDSHIP HONOURABLE JUSTICE K.I. AMADI
DATED: DECEMBER 9, 2019 Suit NO:NICN/JOS/26/2016
BETWEEN
ALHAJI GARBA UMAR -------- CLAIMANT
AND
TARABA STATE GOVERNMENT ----------- DEFENDANT
REPRESENTATION
M.M. Nuruddeen for the Claimant
Chris. D. Abongaby with Alheri Samuel, T.K Fwang’an and T.Dacha for the Defendant
JUDGMENT
INTRODUCTION:
The Claimant commenced this case by a general form of Complaint and Statement of claim dated 20th June, 2016 and filed on 22nd June, 2016. The Claimant claimed against the defendants as follows:
1. A declaration that the judgment of the Supreme Court in Appeal No: SC 416/2013 wherein the impeachment of a former Deputy Governor, Alhaji Sani Abubakar Danladi was nullified by the Supreme Court does not in any way affect the right of the claimant to the said retirement gratuity.
2. A declaration that the Supreme Court did not nullify ordeclare unconstitutional the tenure of the claimant as to warrant the refusal of the defendant to pay him his entitlements recognised by law, namely the Remuneration of Political and Public Officers Holders Law of Taraba State.
3. An ordercompelling the defendant to provide:
i. a personal assistant on salary of not less than GL.10
ii. two drivers on not less than salary E scale GL 7.
iii. one cook on salary scale of not less than GL 05
iv. one steward on salary scale of not less GL 04.
v. security in the claimant’s house in Jalingo.
vi. two Toyota Land Cruiser Jeeps.
Being the entitlements of the claimant upon leaving office as acting Governor in November, 2014 as provided for under the Remuneration of political and public officers holders law.
4. An order compelling the defendant to pay the claimant the sum of N200,000,000.00 (Two Hundred Million Naira) being his official retirement gratuity as conferred by the Remuneration of Political and Public Office Holders' Law of Taraba State as the former acting Governor of Taraba State between 14th November, 2012 to 21st November, 2014.
5. An Order compelling the respondent to pay the Claimant the sum of N36,000,000.00 (ThirtySix Million Naira) or 300% of his annual salary as his medical/check-up allowance as former acting Governor of Taraba State.
6. The costs of this suit.
The Defendant filed their Memorandum of Appearance and Statement of Defence. The defendant Counter Claimed against the claimant as follows:
a. A declaration that the Claimant was not and could not be described as a Political and Public office holder of Taraba State from 5th October 2012 to 21st November, 2014 or any other period at all.
b. A declaration that the Claimant is not entitled to any gratuity or any retirement benefits since there is no lawful and valid record that he ever held or exercised the office he claimed.
c. A declaration that the Claimant wrongly, unlawfully and illegally authorized or paid to himself twenty-six months salaries and allowances and certain benefits to which he was not entitled.
d. An order Directing the Claimant to return or refund to the coffers of the Government of Taraba State the sum of Twenty-Six Million Naira (N26,000,000:00) being twenty-six months salaries, from 5th October 2012 to 21st November, 2014 which were received or collected by him at an average salary of One Million Naira per month.
e. General Damages of Eighty Million Naira (N80,000,000:00) for the wrongful, unlawful and tortuous invasion of the finance and accounts of the Government of Taraba State for the period 5th October 2012 to 21st November, 2014.
f. Public Apology to the people and Government of Taraba State for the undignified and unlawful seizure and usurpation of office of Deputy Governor/Acting Governor contrary to law and decency of the demands of a Constitutional democracy
The case was mentioned on 6thDecember 2016, and hearing commenced on 21stJune, 2018, the Claimant called a sole witness Musa Tende(CW1) who testified by adopting his two witness statements on oath dated 22nd April 2016 and 19thApril 2018 respectively. He tendered all documents pleaded and frontloaded which documents were received in evidence and marked accordingly. Hewas cross examined by the defendants’ counsel and was discharged from the witness box on the same 21stJune, 2018 after which the claimant closed his case.
The Defendant opened its case on 5thNovember, 2018 and called two witnesses Jibrin H. Gimba and Isaac T. Waaka who testified by adopting their witness statements on oath. They were cross examinedthereafter; the Defendant closed its case. The matter was adjourned to 15thJanuary 2019 for adoption. However, the court suo motu asked the parties to address the court on the propriety and or legality of a State House of Assembly legislating and fixing pension sum and other benefits or rewards to its political office holders without any ceiling in respect of the sum so fixed and on whether the suit is not statute barred, whereupon the parties addressed the court finally on 22nd November 2019.
BRIEF FACTS OF THE CASE.
Following the purported impeachment of the Deputy Governor of Taraba state; Alhaji. Sani Abubakar Danladi, the Claimant was appointed to be theDeputy Governor of the state by the former Governor Mr. DanbabaDanfulaniSuntai(who had an helicopter accident) with the approval of the Taraba State House of Assembly on 5th October, 2012. Thereafter, the Taraba State House of Assembly passed a resolution on 14th November, 2012 mandating the Claimant to act as the Governor of the state.
Meanwhile, the Deputy Governor of Taraba state; Alhaji. Sani Abubakar Danladi, challenged his purported impeachment up to the Supreme Court, and the Supreme Court of Nigeria on the 21st November, 2014 delivered judgment in Appeal No: SC 416/2013 (Alhaji Sani Abubakar Danladi versus Barr. NasiruAuduDangiri& 6 Ors.), whereupon the apex Court in the said judgment nullified the purported impeachment of the Deputy Governor, Alhaji. Sani Abubakar Danladi and ordered his re-instatement as theDeputy Governor of the state.
Consequently, the Claimant vacated office following the said Supreme Court judgment on 21st November, 2014. It is the case of theClaimant that by virtue of the Taraba State Governor and Deputy Governor’s Pension Law, 2015 which came into effect on 27th May 2015 thathe is entitled to N200, 000, 00.00 (Two Hundred Million Naira) gratuity as a former Governor and 300% of his salary or N36, 000, 000. 00 (Thirty-Six Million Naira) as acting Governor as medical/check-up allowance and the other benefits/ entitlements as provided in that said law having occupied the office of the Deputy Governor of that state hence this suit. On the other hand, it is the case of the defendant that by virtue of the aforesaid judgment in the said Appeal No: SC 416/2013 (Alhaji Sani Abubakar Danladi versus Barr. NasiruAuduDangiri& 6 Ors.)the claimant herein was never the Deputy Governor of that state and ought to refund all the salaries he collected from the state purporting to be the Deputy Governorof the state whereupon the defendant counter claimed accordingly.
ADDRESSES OF THE PARTIES
The final written address of the Defendant/Counter claimantis dated and filed on the 23rd July 2018; the learned counsel for the Defendant/Counter claimant raised four (4) issues for determination by this HonourableCourt to wit-
1. Whether in the light of the Judgment of the Supreme Court of Nigeria in Appeal No:SC416/2013 Alhaji Sani Abubakar Danladi v Barr NasiruAuduDangiri& 6 Ors, the Claimant can be considered or described as a Political and Public office holder under the Political and Public Office Holder Law of Taraba State, 2002(as amended) or any other law or instrument at all.
2. And if question one above is answered in the negative, is the Claimant entitled to the reliefs being claimed.
3. If he is not so entitled, whether he can be liable or accountable for the period he acted unlawfully in the affairs and governance of Taraba State.
4. Whether by the malfeasance and the illegality that led to his appointment and later removal, whether Claimant is not bound to offer public apology to the people and Government of Taraba State.
In arguing issue one,counsel submitted that the claimant was not a Political and Public office Holder under the law in Taraba State, that it was the Supreme Court Judgment delivered on 21stNovember, 2014 in Appeal No SC.416/2013 Alhaji Sani Abubakar Danladi v Barr NasiruAuduDangiri&Ors. declared this in clear and unambiguous terms thus;
“In effect, at all material times, the appellant, Alhaji Sani Abubakar Danladi remained and still remains the Deputy Governor of Taraba State and he is to resume his interrupted duties of his office forthwith”
Counsel submitted as follows:
1. There could not be two deputy Governors in Taraba State at the same time. That could have been offensive to the tenets of the Nigerian Constitution
2. The Taraba State House of Assembly by its resolution of 25th November, 2014 erased every record of his confirmation and appointment as Deputy Governor and later Acting Governor. Claimant did not challenge that in Court or in this suit.
3. The case of Marwa v Nyako (2012)6 NWLR pt 1296 cited by Claimant to establish the concept of a de facto authority is distinguishable in this case. That was an election petition case where the rights of the contending parties to the office was yet undecided and so the court could not overlook the span of the period when the person held office and when it was resolved. In this case was a violation and violent abuse of the right of the person already in office when Claimant was appointed as such. The court not only found against the violation of the office of Deputy Governor, but also declared that at no time was the office vacant. The principle of de facto authority cannot apply in this case of flagrant abuse. That could amount to tolerating mischief or abuse. The Supreme Court decision in Marwa v Nyako(supra) p. 285 para H stated thus,
“It therefore means that the consequence of the annulled election is different from a null and void proceeding or act which is usually described as being incurably bad and of no effect whatsoever “
4. The case of Lakanmi& Anor v Attorney General (West) &Ors (1970) N.S.C.C at 143 to establish the principle of the doctrine of necessity is also distinguishable and in applicable. There was no vacuum in the governance of Taraba State. The Governor, Pharm DanbabaDanfulaniSuntai was at no time declared incapable of performing the functions of his office. He only travelled out of the country to attend his injuries and that lasted over two weeks (S.190). The Deputy Governor can act in the absence of the Governor, just like the Speaker of the State House of Assembly can act in the absence of both the Governor and Deputy Governor S.191(2) of the Constitution of the Federal Republic of Nigeria (1999) as Amended. No occasion has occurred that could evoke the doctrine of necessity as in this case
5. If as stated above, there cannot be two Deputy Governors inTaraba State between 29th May 2011 and 29th May 2015, and by the Supreme Court Judgment being referred to herein, it means the only Deputy Governor, known to law and the Constitution was Alhaji Sani Abubakar Danladi. The Government of Taraba State cannot pay benefits or entitlements to two Deputy Governors for the same period.
On issue two,counsel submitted that, the claimant is not entitled to any benefit or entitlements under the law or any instrument at all, that any such payment will tantamount to rewarding illegality.That the locus classicus in Macfoy v UAC (1961) 3 WLR 1409 at 1410, where the learned Lord Denning affirmed that if an act is void, then it is a nullity. That in this case the Learned Justice Ngwuta, JSC, was certain in his statement when he declared that“In effect, at all material times, the appellant, Alhaji Sani Abubakar Danladi remained and still remains the Deputy Governor of Taraba State and he is to resume his interrupted duties of his office forthwith”. That the Nigerian Constitution does not provide for two Deputy Governors and if the law under which the claim is brought contemplates that, then the law is in conflict or inconsistent with the Constitution and therefore void to that extent.
On issue three,counsel submitted that justice and fairness have the same semblance of identity, that when you get Justice, it is fair that you are rewarded or punished. That to allow a party wallow in illegality only to be told to go and sin no more does not promote justice and fairness to the victims.
That the Claimant received or paid to himself 26 months salaries amounting to N12,145,140.90. Approved and authorized payments of N62, 960, 158,056.20 from the accounts of Taraba State within the 26 months period of unlawful occupation of the Government of Taraba State. Furthermore, in like vein, the Claimant authorized and approved and disbursed the sum ofN6,628,287,304.39 from the SURE-P account during this period.
That in law, trespass is actionable without proof of damages. The moment the court declared that the removal of the erstwhile Deputy Governor, Alhaji Sani Abubakar Danladi was wrongful and unlawful and that in effect he had not ceased to be the Deputy Governor, the presence or position of the Claimant in the seat and authority of Government of Taraba State became a tortuous trespass and all the approvals he had made and disbursements he authorized became unlawful and tortuous invasion of the Governance and the finance and accounts of Taraba State and are actionable in damages. Counsel referred to the cases ofDantsoho v Mohammed (2003) FWLR (pt. 150)p.1717 at 1739 para C-D, Falomo v Anakanmi (2006) All FWLR(pt. 298) 1242 at 1263 para E-G, OgundipevAdenuga (2006) All FWLR(pt. 336) 255 at 289 para A-B.
Counsel submitted that general damages in the sum of N80, 1000,000,000 (Eighty Billion Naira) only is commensurate with the height or level of misdeeds or malfeasance committed while in the office. Counsel urged the court to so find.
On issue 4 whether by the malfeasance and the illegality that led to his appointment and later removal, whether the Claimant is not bound to offer public apology to the people and Government of Taraba State.
Counsel submitted that the court will always do the needful where it finds that the Claimant was not a Political and Public Office Holder of Taraba State and therefore not entitled to the benefits he is asking, consequently, it is only fair that justice being all rounded should take its course. That the Claimant should be made to offer apology to the people and Government of Taraba State because of the following:
1. He received and earned salaries and allowances and other undeserved benefits from monies in the accounts to the harm and disadvantage of Taraba State.
2. Claimant interrupted and unlawfully interfered with democratic governance of Taraba State contrary to law and Constitutional democracy.
In conclusion, counsel urged the court to dismiss the Claim on the grounds that the Claimant has not proved that he remained a Political and Public Office Holder under the Taraba State Political and Public Office Holders Law or any other instrument at all after the Judgment of the Supreme Court in Appeal No SC/416/2013 Alh Sani Abubakar Danladi v Barr NasiruAuduDangiri& 6 Orsdelivered on 21st November, 2014 and not deservingof any benefit or entitlements as such.
Counselalso urged the Honourable Court to enter judgment in favour of the defendant in the counter-claim and to make award of all the reliefs being sought in the said counter-claim and with cost.
In the defendant’s further address on issuesraise suo moto by the court, the learned counsel summarized the issues thus:
1. Whether the Taraba State House of Assembly has the legal Authority to make the law that confers post tenure benefits on political office holders
2. Whether the claim is Statute barred.
On issue one above,counsel submitted that the Taraba State House of Assembly made; The Taraba State Governor and Deputy Governor’s Pension Law, 2015 came into effect on 27th May 2015. Counsel argued that the question is whether the 36 State Houses of Assembly could enact laws on a matter in the exclusive legislative list (item 44) or on matters on the concurrent legislative list already legislated by the National Assembly, for example, the Revenue Mobilization Allocation and Fiscal Commission Act, that made provision for remunerations of Governors and Deputy Governors and their severance allowances whether these state laws that further provides for same severance allowance and other benefits for life do not offend the legal doctrine of covering the field and therefore unconstitutional and void.
The second question was whether or not in considering item 44 of the exclusive list and the section 32 (d) of the 3rd Schedule, whether ‘condition and welfare of employment and remuneration of certain public officials being some of the functions of Revenue Mobilization Allocation and Fiscal Commission, the State Houses of Assembly can enact laws in respect of pension of Governors and Deputy Governors, irrespective of the Revenue Mobilization Allocation and Fiscal Commission Act.
Counsel submitted that, there is this opinion which is based on Section 124 (5) of the Constitution, 1999 (as amended) that the State Houses of Assembly have the powers to make laws providing for pension for Governors and Deputy Governors.
Continuing, counsel argued that the certain political Public Office Holders and Judicial Officers Remuneration Act, 2002, as amended made provision only for severance allowance and not pension. Counsel submitted that where any of the State laws providing for pension includes any provision on severance benefit, that section can be struck down for breaching the Rules on covering the field, since there is already a provision onthe same subject by a superior legislative organ otherwise so long as those laws were properly enacted and/or have not been annulled by the courts, they remain the extant laws.
Counsel argued that if the claimant did not hold any office known to law as the office of the Deputy Governor or Acting Governor of Taraba State, how would he be compensated in the benefits under that law. None.
And if the court finds it like that then,the acts of approvals and disbursement made to the monies and treasury of Taraba State by the claimant were a tortuous invasion of the accounts and finances of Taraba State which is actionable in damages and refund.
In conclusion counsel submitted as follows:
a. The Taraba State Governor and Deputy Governor’s pension law, 2015 is illegal so long as it further provided for severance allowance by the State House of Assembly which has already being provided for under the RMAFC Act.
b. The morally or otherwise of the surviving provisions of that law does not derogate from its extant statutory legitimacy since they were made by due legislative process.
c. The suit is an abuse of court process and should be dismissed
d. That the court to dismiss the claim and grant the reliefs in the counter claim.
On the other hand, the final written address of the Claimant was dated 15th November 2018 and filed 19th November 2018; the learned counsel raised two (2) issues for determination by this Honourable court to wit-
i. Whether the defendant can rely upon the Supreme Court’s decision in Appeal No: SC/416/2013 between Alhaji Sani Abubakar Danladi v. Barr. NasiruAuduDangiri& 6 Ors. to disentitle the Claimant of his claims.
ii. Whether the claimant is entitled to his claims as contained in the writ of summons and statement of claim.
In arguing issue one counsel, submitted that the defendant cannot rely upon the Supreme Court’s decision in Appeal No: SC/416/2013 between Alhaji Sani Abubakar Danladi v. Barr. NasiruAuduDangiri& 6 Ors. to disentitle the Claimant of his claims.
That the Claimant’s claims are made on the basis that the claimant is a former Public Officer and Political Holder of the defendant. That the Claimant served in the capacity of Deputy Governor and/or Acting Governor of Taraba State from the 5th of October, 2012 – 21st November, 2014.
That at the time the Claimant was appointed into the office of the Deputy Governor of Taraba State, the seat of the Deputy Governor of Taraba State was vacant. Complying with Section 191 (3) of the 1999 Constitution, the then Governor of Taraba State, Governor DanbabaDanfulaniSuntai, upon a resolution passed by the Taraba State House of Assembly, nominated the claimant into the office of Deputy Governor of Taraba State on the 5th day of October, 2012.
Subsequently, on the 14th day of November, 2012, the Taraba State House of Assembly appointed the claimant as acting Governor of Taraba State following the air traffic accident which rendered the then Governor incapacitated. That this was done in compliance with section 190 (2) of the 1999 constitution.
Counsel submitted that, the above appointments were all carried out by the defendant, through the instrumentality of its House of Assembly and the then Governor DanbabaDanfulaniSuntai. That the appointment was made more than two years before the delivery of the decision by the Supreme Court’s in Appeal No: SC/416/2013 between Alhaji Sani Abubakar Danladi v. Barr. NasiruAuduDangiri& 6 Ors.
That it is obvious that the Claimant was not in any way a tortuous trespasser or meddlesome interloper. Neither can it be said that the Claimant unlawfully interfered in the governance of the defendant at the material times.That the Claimant’s appointments were all lawful and in compliance with constitutional provisions as prevailing circumstances necessitated. That the defendant did not, at any time or by legal medium, challenge the constitutionality or otherwise of the claimant’s appointment and occupation into the said office. That the claimant was not even involved in the processes which led to the nullification of the impeachment of Alhaji Sani Abubakar Danladi. That the Claimant was a bonafide appointee to the office which he occupied from 5thof October 2012 – 21st November 2014.
Counsel submitted that despite the Supreme Court’s decision, the claimant held and exercised the function of DeputyGovernor and/or Acting Governor of Taraba State. That the Claimant’s appointment, oath of office and actions cannot be wished away simply because the Supreme Court reinstated Alhaji Sani Abubakar Danladi as the Deputy Governor of Taraba State.
Counsel submitted further that the same Supreme Court has distinguished between a ‘de facto government’ and a ‘de jure government’. That in the case ofMarwa v. Nyako (2012) 6 NWLR (Pt.1296)293 para Ethe Supreme Court held as follows:
It is now established that a de facto authority in a territory under its control are virtually identical with those of a de jure authority
And at p.340 – 341, para G-H, the court stated that:
What was the legal status of the 1st respondent from 29/5/2007 and 26/2/2008? I would start by saying that there are two forms of government.Dejure is a government in law and de facto is a government in fact. A government recognized as de jure government is the one which ought to possess power of sovereignty although at that time it may be deprive of them, whereas a government recognized asgovernment de facto is one which is really in possession of powers of sovereignty although the possession may be wrongful. A de facto government is supreme in all internal matters and its internal acts are internationally valid.
Counselsubmitted that the judgment of the Supreme Court was given to redress the grievances of Alhaji Sani Abubakar Danladi, and not to be used as an instrument to cause grievance to the claimant. That the Supreme Court’s judgment cannot change the past.That the claimant was a bona fide appointee into the office of Deputy Governor and/or Acting Governor of Taraba State and having acted in that capacity, the claimant is a former political and public office holder. The defendant cannot be allowed to give an interpretation or legal implication to the Supreme Court’s Judgment which will in effect stump on the claimant’s rights to his entitlements. Counsel urged the court to so hold.
On issue two, that is; whether the Claimant is entitled to his Claims as contained in the Writ of Summons and Statement of Claim. Counsel submitted that the claimant is entitled to his claims as contained in the writ of summons and statement of claim. That at the time of instituting this action, the Taraba State Political and Public Office Holders’ Law made provisions for the entitlements which enure to a Public Officer and Political Holder who served in the capacity of a Deputy Governor and Acting Governor of Taraba State.
Counsel further submitted that the claimant had in fact held the office of Deputy Governor of Taraba State and also functioned in the capacity of Acting Governor of Taraba State within the periods of 5th of October, 2012 – 21st November, 2014 and that the claimant having served in the above capacities, he is entitled to the claims brought under the said Law.
In conclusion, counsel submitted that:
1. The claimant was lawfully appointed to the office of Deputy Governor of Taraba State and also piloted the affairs of the defendant in the capacity of Acting Governor of Taraba State, prior to the delivery of the Supreme Court’s decision in Appeal No: SC/416/2013(Alhaji Sani Abubakar Danladi v. Barr. NasiruAuduDangiri& 6 Ors.)
2. From the period of 5th October, 2012 – 21st November, 2014, the claimant was in de facto governance of the defendant and the defendant never challenged same.
3. The defendant cannot brandish the Supreme Court’s decision in (Appeal No: SC/416/2013 between Alhaji Sani Abubakar Danladi v. Barr. NasiruAuduDangiri& 6 Ors). as an instrument of oppressing the claimant.
4. The defendant cannot rely on the Supreme Court’s decision in Appeal No: SC/416/2013 (Alhaji Sani Abubakar Danladi v. Barr. NasiruAuduDangiri& 6 Ors.) to disentitle the claimant of his lawful claims.
5. The claimant is entitled to his claims as contained in the writ of summons and statement of claim because he is a former Political Holder and Public Officer of the defendant.
On the whole, Counsel urged the Honourable Court to hold that the claimant’s claims are meritorious and grant same.
In his address on the counter claim learned counsel to the Claimant raised two issues for determinationto wit:
1. Whether the decision of the Supreme Court in Appeal No: SC/416/2013 – Alhaji Sani Abubakar Danladi V. Barr. NasiruAuduDangiri& 6 Ors,operates to nullify the executive actions of the claimant/defendant whilst in office as Deputy Governor of Taraba State and Acting Governor of Taraba State, pursuant to Section 191(3) (a) & (c), 190(2) & 191(1), 1999 Constitution of Nigeria (As Amended), respectively and render the claimant/defendant liable for monies approved in the lawful execution of his executive acts.
2. Whether the defendant/counter-claimant can rely on the decision of the Supreme Court in Appeal No: SC/416/2013 – Alhaji Sani Abubakar Danladi V. Barr. NasiruAuduDangiri& 6 Ors, to nullify the Salaries, Allowances and Benefits enjoyed by the Claimant/Defendant whilst in office as Deputy Governor of Taraba State/Acting Governor of Taraba State, pursuant to Section 191(3) (a) & (c), 190(2) & 191(1), 1999 Constitution of Nigeria (As Amended), respectively and render the Claimant/Defendant liable to return the salaries, allowances and benefits claimed by the Defendant/Counter-Claimant.
On issue one, counsel submitted that the decision of the Supreme Court in Appeal No: SC/416/2013 – Alhaji Sani Abubakar DanladiV. Barr. NasiruAuduDangiri& 6 Ors, does not operate to nullify the executive actions of the claimant/defendant taken whilst he was in office as Deputy Governor of Taraba State and Acting Governor of Taraba State, pursuant to Section 191(3) (a) & (c), 190(2) & 191(1), 1999 Constitution of Nigeria (As Amended), respectively. The said decision cannot render the claimant/defendant liable for monies approved in the lawful execution of his executive acts.
That the ground upon which the defendant/counter-claimant counterclaims against the claimant/defendant is the decision of the Supreme Court in Court in Appeal No: SC/416/2013 between Alhaji Sani Abubakar Danladi v. Barr. NasiruAuduDangiri& 6 Ors, wherein the Supreme Court nullified the impeachment of Alhaji Sani Abubakar Danladi and reinstated him as the Deputy Governor of Taraba State. Counselreferred to the cases of Marwa v. Nyako (Supra),andO.S.I.E.C v. A.C (2010) 19 NWLR Pt. 1226 p.340, para.and submitted that the Constitution clearly makes the office of Deputy Governor of a State an elective office. The claimant/defendant being appointed as the Deputy Governor of Taraba State was clearly appointed into an elective office and thus, exercised the authority and duties of a person in an elective office.
In arguing issue two,counsel submitted that the defendant-counter claimant cannot rely on the decision of the Supreme Court in Appeal No: SC/416/2013 between Alhaji Sani Abubakar Danladi v. Barr. NasiruAuduDangiri& 6 Ors to nullify the salaries, allowances and benefits enjoyed by the claimant/defendant whilst lawfully in office and render the claimant/defendant liable to return the monies now claimed by the defendant/counter-claimant. Counsel referred to the case of O.S.I.E.C v. A.C (2010) 19 NWLR Pt. 1226 p.340 wherethe Supreme Court held as follows:
“The nullification of a statute does not affect rights and liabilities that might have accrued under the statute prior to its nullification. The above principle remains good law but the question is whether it applies to the facts of this case. I hold the considered view that the principle applies herein in the sense that whatever salary, privileges and or benefits the appellants in the second appeal might have earned or enjoyed prior to the nullification of the enactment under which their election was conducted cannot be taken away following the nullification. These are the rights that enured to the appellants following the election in question.”
Counsel submitted that from the arguments on issue one above and relying on the decision in O.S.I.E.C v. A.C. (Supra), the salaries, allowances and benefits enjoyed by the claimant/defendant whilst in office were not illegal or unlawful. They were monies which enured to the claimant/defendant whilst he was in lawful occupation of the office of Deputy Governor of Taraba State. The fact that the claimant/defendant vacated the office of the Deputy Governor of Taraba State pursuant to the decision of the Supreme Court reinstating Alhaji Sani Abubakar Danladi does not render those salaries, allowances, and benefits unlawful or illegal.
In conclusion, Counsel submitted that:
1. The Supreme Court’s decision in Appeal No: SC/416/2013 between Alhaji Sani Abubakar Danladi v. Barr. NasiruAuduDangiri& 6 Ors. does not nullify the executive acts of the claimant/defendant.
2. The claimant/defendant is not liable to refund the monies approved in the lawful execution of his functions as Deputy Governor and/or Acting Governor of Taraba State.
3. The salaries, allowances and benefits enjoyed by the claimant/defendant whilst he was the Deputy Governor of Taraba State were lawful as they were monies which inured to the claimant/defendant whilst he was in lawful occupation of the office.
4. The defendant/counter-claimant cannot rely on the Supreme Court’s decision in Appeal No: SC/416/2013 between Alhaji Sani Abubakar Danladi v. Barr. NasiruAuduDangiri& 6 Ors, to claim the salaries, allowances and benefits enjoyed by the claimant/defendant whilst he was in office as the Deputy Governor of Taraba State.
Counsel urged the Honourable Court to dismiss the counter-claim as it is unmeritorious.
In the defendant/ counter claimant’s further address on issues raisedsuo moto by the court, the learned counsel summarized the issues thus:
3. Whether the Taraba State House of Assembly has the legal Authority to make the law that confers post tenure benefits on political office holders.
4. Whether the claim is Statute barred.
In arguing issue one,counsel submitted that the Taraba State House of Assembly made “The Taraba State Governor and Deputy Governor’s Pension Law, 2015” that came into effect on 27th May 2015, which law conferred post tenure benefits on former Governors and Deputy Governors of Taraba State.
Counsel argued that there are Pension Laws that confer benefits to workers that retire from services rendered to the state after long years of service as compensation. That there is also the Workmen Compensation that was made to cater for workers who were injured while at duty for certain kinds of injuries that could happen to them.Counsel submitted that it is believed that the severance gratuity made or provided by the Revenue Mobilization Allocation and Fiscal Commission (RMAFC) Act is to take care of compulsory redundancy that may be brought as a result of the expiration of the tenure of political office holders. Counsel submitted that the certain political Public Office Holders and Judicial Officers Remuneration Act, 2002, asamended, make provision only for severance allowance and not pension. That where any of the State laws providing for pensions includes any provisions on severance benefit, that section can be struck down for breaching the Rules on covering the field, since there is already a provision on the same subject by a superior legislative organ otherwise so long as those laws were properly enacted and/or have not been annulled by the courts, they remain the extant laws.
Counsel submitted further, that the Claimant is claiming the benefits under the law for the position of a former Deputy Governor or Acting Governor of Taraba State and he was not any of such to deserve the benefits of that office.That the Claimant was nominated as Deputy Governor when the substantive Deputy Governor, Alhaji Sani Abubakar Danladi was illegally removed by the Taraba State House of Assembly on 5th October, 2012. The said Alhaji Danladi went to court to challenge his removal as Deputy Governor and after a tortuous battle, in Appeal No. SC. 416/2013, the Supreme Court of Nigeria on 21st November, 2014 held thus:
“In effect, at all material times, the appellant, Alhaji Sani Abubakar Danladi remained the Deputy Governor of Taraba State and he is to resume his interrupted duties of his office forthwith”
Counsel submitted that as a result of the above decision, the Claimant was removed from office on 21st November, 2014 and also the Taraba State House of Assembly on 25th November, 2014 by Resolution No: 016 erased any record of the office(s) the Claimant claimed to have held. That was in consonance with the provisions of the Constitution that provides for only one Deputy Governor at a time for each State of the Federation.
On issue two whether the claim is Statute barred. Counsel submitted that the question to ponder is how long was it between the time the House Resolution No: 016 was passed and the time when Claimant came to court on this claim or rather still whether there is any suit or action challenging the obliteration or erasure of the alleged record of the office (s) he claimed he held.
In conclusion counsel submitted as follows:
e. That the Taraba State Governor and Deputy Governor’s pension law, 2015 is illegal so long as it further provided for severance allowance by the State House of Assembly which has already being provided for under the RMAFC Act.
f. That the morality or otherwise of the surviving provisions of that law does not derogate from its extant statutory legitimacy since they were made by due legislative process.
g. That the suit is an abuse of court process and should be dismissed
Counsel urged the court to dismiss the claim and grant the reliefs in the counter claim.
In the Claimant’s further address on points of law, the learned counsel summarized the issues thus:
On issue one the Propriety or Otherwise of a State House of Assembly Affixing Pension Reward or Other Benefits to Public Officer within the State
Counsel submitted that “Pensions, gratuities and other like benefits payable out of the Consolidated Revenue Fund or any other public funds of the Federation”, are indicated as N0.44 of the Items in the Exclusive Legislative List, under Part 1, of the Second Schedule to the 1999 Constitution. That the purport of the above is that only the National Assembly has the legislative powers to make laws on matters associated with Pensions and other rewards to Public Officers. However, section 124(5) of the 1999 Constitution provides as follows:
“Provisions may be made by a Law of a House of Assembly for the grant of a pension or gratuity to or in respect of a person who had held office as Governor or Deputy Governor and was not removed from office as a result of impeachment; and any pension granted by virtue of any provision made in pursuance of this subsection shall be a charge upon the Consolidated Revenue Fund of the State.
Furthermore, section 210 of the 1999 Constitution provides as follows:
Subject to the provisions of subsection (2) of this section, the right of a person in the public service of a State to receive pension or gratuity shall be regulated by law.
And Section 18 of the Interpretation Act, 1964, which interprets particular expressions, provides as follows:
“Law” means any law enacted or having effect as if enacted by the legislature of a State and includes any instrument having the force of law which is made under a Law.
Counsel submitted that from the foregoing statutory provisions, the House of Assembly of a State has the Constitutional power to make laws on Pension or gratuity which falls within the purview of section 124(5) of the 1999 Constitution.
Counsel further submitted that in light of the interpretation given to the word ‘Law’ under section 18 of the Interpretation Act, and in view of the fact that section 210 does not indicate a contrary intention, section 210 also confers on the House of Assembly of a State the power to make laws which regulates the pension rights of persons in the public service of a State. Counsel urged the court to so find and hold.
On issue two,whether the Claimant’s action is not statute barred? Counsel submitted that the claimant’s action is not statute barred. That the three months limitation period for bringing actions against public officers, under section 2 of the Public Officers (Protection) Law, Taraba State, does not apply to the claimant’s action based on the following grounds:
i. The defendant is not a Public Officer but an organ of government.
ii. Even if the Honourable Court holds that the defendant is a Public Officer, the general provision of section 2 of the Public Officers (Protection) Law, Taraba State, will still not apply. Rather, the provision of Section 2(a) of the Law, which makes for exemptions, applies to the claimant’s action because the damage done to the claimant is a continuing damage, and as such, the cause of action is a continuous one.
Counsel submitted that for the avoidance of doubt Section 2 of the said Law provides thus:
“Where any action, prosecution, or other proceedings is commenced against any person for any act done in pursuance or execution or intended execution of any act or law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such act, law, duty or authority, the following provisions shall have effect:-
(a) Limitation of time - the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of or in case of a continuation of damage or injury, within three months next after the ceasing thereof.”
Counsel referred to the casesOlaosebikanv Williams (1996) 5 NWLR (Pt. 449)437 and submitted that the continuous refusal by the defendant to pay the claimant his legal entitlements as a former deputy Governor, and then acting Governor, constitutes a continuous injury or damage. And as suchsection 2(a) of the Law applies to exempt the claimant’s action from the effect of the general provision of section 2 of that Act.
In conclusion, Counsel submitted that:
i. Based on the provisions of Section 124(5) and 210 of the 1999 Constitution as Amended, the State House of Assembly can affix pension reward or other benefits to public officer within the State,
ii. The claimant’s action is not statute barred.
From the foregoing none of the parties related the issue on whether this is statute barred or not to the counter claim which is a separate suit in itself. Thus, on the 11th day of November 2019, the parties further addressed the court on whether the counterclaim is statute barred or not. In addressing the court the learned counsel for the claimant/ defendant to the counter claim argued that the claimant/defendant to the counter claim is a former public officer who vacated office via a judgment of the Supreme Court of 21/11/2014, therefore all actions against him must be commenced within 3months from the date of occurrence of that action. Counsel submitted that the counter claim which was commenced on the 19/10/2016; one year and nine months after he vacated office is statute barred. Counsel urged the Court to so hold.
The learned counsel for the defendant/claimant to the counter claim adopted his written address captioned “Further Address on Competence of the Counter- Claim raised suo motu by the Court.” The Defendant/Counter-Claimant’s Counsel in his further address on the competence of the counter-claim suo motu raised by the court,formulated two issues for determination as follows:
1). whether the claimant was a Public Officer under the Public Officer Protection Act, LFN 2004.
2). Whether acts or actions by the Claimant were not unlawful or illegal actions not protected by the Public Officers Protection Act.
In respect of issue counsel submitted that a public officer as defined or covered by the Public Officers protection Act, 2004 does not include a person who did not hold public office or is presumed not to hold public office. That the Supreme Court declared unequivocally that the removal of the Deputy Governor, Alhaji Abubakar Sani Danladi, was unlawful and that he never ceased to hold the office as such. Counsel submitted that the Claimant made several attempts to challenge that in the High Court of Taraba State in Suit No. TRSJ/89/2016 and the Court of Appeal, Yola Division in Appeal No. CA/YL/180/2017, all to no avail.
That the Taraba State House of Assembly madea Resolution erasing or cancelling any recommendation, approval or appointment of Claimant as Deputy/Acting Governor, the claimant also sought to set aside the resolution but failed. The pertinent question is if the courts and Taraba State House of Assembly declared that there was no other Deputy Governor of Taraba State from 5th October 2012 to 21st November, 2014, which public office then did the claimant hold to be entitled to his claim or rather still, if he did not hold any of such offices and acted illegally in that office, and should recompense the State for the loss it suffered.
Counsel submitted that one of the exceptions to Section 2 (a) of the Act is that the action of the Public Officer is not illegal or unlawful. Counsel submitted that the claimant from the fact before the court upon the pronouncement by the Supreme Court, the actions he took as Deputy/Acting Governor were both illegal and unlawful because the Constitution prohibits any person from taking over the Government of the Federation or State except in accordance with the provisions of the Constitution.
Counsel submitted that the salaries the claimant received for twenty-six months remains a debt and therefore a continuous injury and is exempted from protection. That the limitation period on debt is six years, from October 2012 and 2016 when the counter-claim was filed, which is less than six years. This suit is therefore not Statute barred. Counsel urged the court to so hold.
COURT’S DECISION.
I have read all the processes filed by the parties in this suit. I have also reviewed the evidence presented by them. I am of the view that from all issues raised by the parties herein two of them summarized the issues in controversy between the parties. The two issues are:
1. Whether the claimant is entitled to his claims as contained in the writ of summons and statement of claim.
2. Whether the Taraba State House of Assembly has the legal authority to make the law that confers post tenure benefits on political office holders as it did in The Taraba State Governor and Deputy Governor’s Pension Law, 2015.
In respect of issue one, it is not in dispute between the parties that the claimant’s claims are based on his alleged appointment by the then Governor of Taraba State MrDanbabaDanfulaniSuntai as the Deputy Governor of Taraba State following the purported impeachment of the Deputy Governor of Taraba State Alhaji Sani Abubakar Danladiwhereupon the claimant was allegedly appointed the Deputy Governor of the state, on October 5, 2012 and on October 14,2012 the Taraba State House of Assembly authorized him to act as the Acting Governor of the state.
It is further not in dispute that upon the challenge of his said purported impeachment as the DeputyGovernor of Taraba State the Supreme Court of Nigeria in Appeal No: SC/416/2013 (Alhaji Sani Abubakar Danladi v. Barr. NasiruAuduDangiri& 6 Ors) annulled the aforesaid purported impeachment and restored himAlhaji Sani Abubakar Danladi to his office as the Deputy Governor of Taraba State.
It is on record that inthe said judgment in Appeal No. SC. 416/2013, the Supreme Court of Nigeria on 21st November, 2014 held thus:
In effect, at all material times, the appellant, Alhaji Sani Abubakar Danladi remained the Deputy Governor of Taraba State and he is to resume his interrupted duties of his office forthwith.
The words and holding of the Supreme Court are very clear and unambiguous. They need no further interpretation to find their meaning except to hold that at all material times, the appellant, Alhaji Sani Abubakar Danladi remained the Deputy Governor of Taraba State, while the claimant in this case was never the Deputy Governor of Taraba state. The period when Alhaji Sani Abubakar Danladi was purportedly removed was held to be a period of interruption in his office. Any invitation to read any other meaning or connotation to the above holding of the supreme Court aforesaid amounts to an invitation to commit judicial rascality. I am bound by the principle of stare decisis. By thisprinciple of law, the lower Courts are bound by the decisions of the higher Courts, notwithstanding how witty and brilliant the decision of the lower Court could have been.Therefore, where a higher Court in the hierarchy of Courts had determined an issue or matter between the parties before it and made a pronouncement on it, the lower Court is rather mandated by the Constitution to enforce that decision and not to make any contrary decision to it. See Okoye v Centre Point Merchant Bank Ltd. (2008) 15 NWLR Part 1110 p.335.The claims of the claimant in this case are therefore built and founded on nothing and it is settled that one cannot put something on nothing and expect it to stand see Mcfoy v UAC (1962)AC 152.This issue is therefore resolved against the claimant.
In respect of issue two, the various provisions of the 1999 Constitution of Nigeria as variously amended that are directly or remotely in issue here are Sections 124(1), 124(5) andN0.44 of the Items in the Exclusive Legislative List, under Part 1, of the Second Schedule to the Constitution andsection 32 (d) of the 3rd Schedule to the Constitution.
I shall now proceedto look at the specific provisions of these sections seriatim as follows:
The first provision is Section 124(1) of the Constitution whichprovides that:
There shall be paid to the holders of the offices mentioned in this section such remuneration and salariesas may be prescribed by a House of Assembly, but not exceeding the amount as shallhave been determined by the Revenue Mobilisation Allocation and Fiscal Commission. (emphasis mine).
It is important to note the use of the auxiliaryverb shall in section 124(1). In the case of Govenor, Ekiti State v Olubunmo (2017) 3 NWLR (Pt.1551) 1 @ 35, Para. A, the Supreme Court per Nweze, JSC held thus:
In my view, the use of the auxiliary verb “shall” in the said section connotes a command; an imperative requirement, a constitutional direction which yields no room for discretion.
Similarly, in the case of Nwankwo v Yar’ Adua (2010) 12 NWLR (Pt. 1209) 518 @ 589, para B, the Supreme Court, per Adekeye, J.S.C. stated the full implication of the word “shall” in the following words:
“The word shall when used in a statutory provision imports that a thing must be done. It is a form of command or mandate. It is not permissive, it is mandatory. The word shall in its ordinary meaning is a word of command which is normally given a compulsory meaning as it is intended to denote obligation.
From the foregoing it then means that the provisions of section 124(1) are mandatory and not directory.
The Black’s Law Dictionary (Tenth Edition) by Bryan A. Garner(1995) Thomson Reuters at page 1487;defined ‘remuneration’as: payment; compensation especially for a service that someone has performed. Also, the Chambers 21st Century Dictionary;Mairi Robinson et (2002) Chambers Harrap PublishersLimited page1181 defined the verb ‘remunerate’ as follows:1 to recompense. 2 to pay for services rendered.On the other hand, the same Black’s Law Dictionary at page 1537 defined salary as; An agreed compensation for services especially professional or semiprofessional services.While Oxford Advanced Learner’s Dictionary, by A.S. Hornby 7th Edition (2005) Oxford Press page 1291 defined salary as money that employees receive for doing their job especially professional employees or people working in an office, usually paid every month.
From the foregoing definitions, it is very clear thatremuneration and salariesas used in this section deal with two separate and distinct issues; whileremuneration refers to payment to be made for services completed or rendered which to give effect to the provision of this section relates to the period during which those offices referred to were held. Salaries on the other hand, refer to the earnings of the holders of those offices during the currenttenure of their so holding such offices, in other words during the period when they are working in those offices.The foregoing is reinforced by the use of the conjunctive word ‘and’, which word when used in its conjunctive sense, is used to conjoin words, clauses or sentences expressing the relation of addition or connection and signifying that something is to follow in addition to that which proceeds the former see the dictum of Niki Tobi, J.S.C. (as he then was) inOgunyade v. Oshunkeye (2007) 15 NWLR (Pt.1057) 218(Pp.20-21, Paras.G-D)
The second provision is section 124(5) of the 1999 Constitution which provides as follows:
“Provisions may be made by a Law of a House of Assembly for the grant of a pension or gratuity to or in respect of a person who had held office as Governor or Deputy Governor and was not removed from office as a result of impeachment; and any pension granted by virtue of any provision made in pursuance of this subsection shall be a charge upon the Consolidated Revenue Fund of the State.(Underlining mine).
It is important to note the use of the auxiliary verb ‘may’ in this section which clearly makes the provision of that section mere directory and not mandatory as against the use of the word ‘shall’ in section 12a(1) above see Oko v Igweshi (1997) 4 NWLR (Pt. 497) 60. The same Black’s Law Dictionary on the hand, has its first definition of the word ‘pension’ as; a regular series of payments made to a person for past services or some meritous work done and its third definition of the word pension as: a fixed sum paid regularly to a person especially by an employer as a retirement benefit.
In Momodu v National Union of Local Government Employees (1994)8NWLR(Pt.362)336 Ubaezonu, J.C.A.( as he then was) defined pension as:an accrued right of an employee, be the right in money or other consideration, on retiring from the services of his employer and satisfying the conditions for payment of the said pension. It is a right which cannot be unilaterally taken away by the employer.
There is no doubt that the phrasewho had held office as Governor or Deputy Governor in this section refers to services rendered or work performed in that capacity. That is when the person has completed his holding that office, which is thus directedly within the ambit of the definition of the word‘remunerate’ as used in section124(1) above. The clear meaning or implication of the foregoing is that ‘pension’ is part and parcel of the word remuneration as used in section 124(1) above, I so find and hold.
The third provision isN0.44 of the Items in the Exclusive Legislative List, under Part 1, of the Second Schedule to the 1999 Constitutionwhich placed “Pensions, gratuities and other like benefits payable out of the Consolidated Revenue Fund or any other public funds of the Federation” in the Exclusive Legislative List,ordinarily the implication of that is that only the National Assembly has the legislative powers to make laws on matters associated with Pensions and other rewards to Public Officers.
The fourth provision is section 32 (d) of the Third Schedule to the Constitution, which gave the Revenue Mobilization Allocation and Fiscal Commission the power to determine the remuneration appropriate for political office holders, including the President,Vice-President,Governors,Deputy Governors, Ministers, Commissioners Special Advisers and the holders of the offices mentioned in sections 84 and 124 of this constitution. It is also very important to note the use of the word shall in donating the powers in this section.
There is no dispute to the fact that the words used in a Constitution, are what convey the intention of the framers of that Constitution. The lot is on the courts, to interpret the Constitution. In so doing, a court of law is duty bound to consider in entirety, the relevant sections of the Constitution, in order to arrive at the correct result, that is to decipher the intention of the framersSee PDP v INEC & ORS (1999) 11 NWLR (Pt.626) 200; ChimevUde (1996) 7 NWLR (Pt. 461) 379 and A.T. Ltdv A.D.H Ltd (2007) 15 NWLR (Pt.1056) 118.
From the foregoing it appears that there is a contradiction by the provision of section 124(5) which enabled the House of Assembly of a State to provide for pension or gratuity to Governors and Deputy Governors which items are also placed under the Exclusive legislative list under Part 1, of the Second Schedule to the 1999 Constitution.The question then is how to reconcile these two provisions of the constitution. The answer is by adopting a purposeful approach by which the court is required to look at the constitution as a whole and construe itsprovisions in such a way as to give effect to thegeneral and specific purposes for which it was enacted; that is good governance and the welfare of all Nigerian based on the principles of equality and justice see the cases ofAG of Ogun State v AG of the Federation (1982)3SCLR, 166, (1982)1-2SC 13, Uzoukwu v Ezenu 11 (1991)6 NWLR(Pt.200) 708@763 and Ali v Albishir (2008) 3NWLR (Pt, 1073) 94@ 145.
Ordinarily, between the provision of section124(5) of the constitution and the provision of No 44 under the Exclusive legislative list under Part 1, of the Second Schedule to the 1999 Constitution. The provision of section124(5) being a provision in the body of the Constitution will certainly override that provision in the schedule, that was established in the case ofIdris v A.N.P.P(2008) 8NWLR(Pt.1088)1@109-110 which held that where there is a conflict between the provisions in the body of the statute, and those in the schedule, the former prevails over the later.
However, the foregoing holding in Idris v A.N.P.P(supra) has its limitation. It cannot apply where the statute itself by another provision expressly and in clear terms or language places the provision of the schedule over and above the provision in the body of the statute as will be seen hereunder.
It has already been established that the provisions of section 154(1) deal with two distinct or separate periods though related, while salary is concerned with the earning while the offices are being occupied and services being rendered remuneration on the other hand is concerned with the payment for the period after those offices have been held and for services completed or rendered, which to give effect to the provision of this section relates to the period during which those offices referred to were held. It has equally been established that remuneration includes pension.
Furthermore, it is also not in dispute that the power granted to a state House of Assembly to provide for pension and gratuity is a mere directory or permissive power which is not mandatory. Now the Constitution under section 32 (d) of the Third Schedule to the Constitution, gave the Revenue Mobilization Allocation and Fiscal Commission the power to determine the remuneration appropriate for political office holders, including the President, Vice-President, Governors, Deputy Governors, Ministers, Commissioners Special Advisers and the holders of the offices specifically mentioned in sections 84 and 124 of this constitution. The provision of this section is very clear and unambiguous. The use of the word ‘shall’ in granting the power to the Revenue Mobilization Allocation and Fiscal Commission, in this section makes it a mandatory provision which must be obeyed. The implications are first that both sections 124(1) and 124(5) are directly under the provision of the supervision of the Revenue Mobilization Allocation and Fiscal Commission. And secondly, whatever provision made under section124(1) must be in compliance with the second arm of the provision of section124(1) to the effect that any such remuneration and salaries as may be prescribed by a House of Assembly, shall not exceed the amount as shall have been determined by the Revenue Mobilisation Allocation and Fiscal Commission.
Therefore,it is very clear that a state House of Assembly in Nigeria lacks the power to fix any amount in remuneration to its past Governors and Deputy governors as pension or gratuity unless the Revenue Mobilisation Allocation and Fiscal Commission has first of all determined an amount as pension and gratuity topast Governors and Deputy governors in which case such amount so fixedshall not exceed the amount as have been determined by the Revenue Mobilisation Allocation and Fiscal Commission.
Sincethe Revenue Mobilisation Allocation and Fiscal Commission has not fixed any amount as pension and gratuity to past Governors and Deputy governors in Nigeria, any law made by any State House of Assembly granting pension and gratuity to its past Governors and Deputy Governors is therefore null and void. To that extent, I hold that the Taraba State Governor and Deputy Governor’s pension law, 2015 is null and void.
In all, the claimant’s case is completely lacking in merit and it is hereby dismissed.
I shall now treat the counter claim. This court suo motu raised the issue whether this case is statute barred or not. While, the learned counsel for the claimant in main suit and defendant in the counter claim submitted that this counter claim is statute barred the learned counsel for the defendant in the main suit /claimant in the counter claim submitted that this case is not statute barred.
At this point, it is very important to reproduce the provisions of that Section 2(a) of the Public Officers Protection Act 2004 Laws of the Federation of Nigeria Cap 41 which provides thus: -
2 Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law, or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect”.
(a) the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months after the ceasing thereof
Section 2 (a) of the Public Officers Protection Act 2004 Laws of the Federation of Nigeria Cap P.41 no doubt imposes a three month period of limitation of action against Public Officers and time begins to run when there is in existence a person who can sue and another who can be sued in respect of the cause of action, that is to say the moment the cause of action arose, see the case of Fadare v. AG Oyo State 1982 4SC 1.
It is trite that what a court is enjoined to look out for in deciding whether a suit is statute barred or not are: -
(a)The date when cause of action arose and
(b) The date of filing of the originating processes and then check whether or not the period of limitation has been exceeded, see Popoola Elabanjo&Orsv Chief (Mrs.) GaniatDawodu [2006] 6 S.C.N.J 204 at 227 and PN Uddoh Trading Co. Ltd. vAbere [2001] FWLR (Pt. 57) 922.
There is no dispute that the course of action in this case arose on 21st November, 2014 when the Supreme Court restored Alhaji Sani Abubakar Danladi to his office as the Deputy Governor of Taraba state. The counter claim was filed in 26th October 2016 which is more than 3 months prescribed by that law. The issue here is whether that Section 2 (a) of the Public Officers Protection Act 2004operates to shield a public officer from suits against him or does it also avail an individual from any suit against him by a public officer? There is no doubt here that the counter claimant herein is a public officer while the defendant is not. the case of Aiyetan v Nigerian Institute of Oil Palm Research [1987] LPELR 275 SC is most instructive. In that case, the plaintiff had instituted an action for wrongful dismissal and his employers counter claimed for N12, being money, the plaintiff was alleged to have taken for his own. The Supreme Court upheld the trial court’s dismissal of the counterclaim as being statute barred, thereby overturning the decision of the Court of Appeal that a former public officer, former employee cannot raise Section 2A Public Officers Protection Act against the Federal Government or any of its agencies as employer. The Supreme Court per Nnamani A JSC had this to say “I see nothing that would necessitate the exclusion of the Federal Government or any of its agencies from the application of the Act”. Applying the above authority, I find and hold that the defendant is entitled to raise the defence of Public Officer Protection Act against the claimant in this counter claim. See Suit NO: NICN/IL/02/2013 The Government of Kwara State v Victor SalauDauduunreport judgment of this Courtdelivered 19th May 2014.This suit is therefore statute barred and liable to be struck out or dismissed.
Consequently, this judgment ought to terminate at this stage. However, because of the admonition of the Supreme Court in Brawal Shipping Company v Onwudikwe Company (2000) 6 SCNJ 508 at 522, Seven Up Bottling Company Ltd v Abiola& Sons Bottling Company Ltd (2001) 6SCNJ 18 at 49. See also, Ojobue v Nnubia (1972) 6 SC 27 and Katto v CBN (1991) 9NWLR (Pt. 214) 126 at 149 that trial courts should determine all issues raised for determination in a case before them and should not limit themselves to the issue that disposes of the entire case, to avoid the case being remitted back to the lower court for the trial of the issues not determined by it, I shall proceed to determine the merit of this counter claim.
The defendant to the counter claim did not deny that he received salaries for 26 months from the counter claimant. He also did deny the amount claimed by the counter claimant that he received as salary for the period in controversy. I have already held that one of the implications of the judgment in Appeal No. SC. 416/2013, the Supreme Court of Nigeria on 21st November, is that the defendant to the counter claim herein was never the Deputy Governor of Taraba state. The period when Alhaji Sani Abubakar Danladi was purportedly removed was held to be a period of interruption in his office. The defendant to the counter claim therefore ought to refund money he received as salary for that period as claimed.
In all, having nullified the Taraba State Governor and Deputy Governor’s Pension Law, 2015 and having also held that the claimant in this suit was never the Deputy Governor of Taraba State; I hold that this suit is dismissed for grossly lacking in merit. On the other hand, the counter claim is struck out for being statute barred. There shall be no order as to cost.
Judgment is entered accordingly.
……………………………………………
Hon. Justice K. I. Amadi, Ph.D.
(Judge)