IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE
DATE: FRIDAY 21ST FEBRUARY 2020
1. HON. PAUL ONWUEGBUSI
2. HON. CAJETAN OKAFOR
3. HON. KENECHUKWU NWEGWU
(For themselves and on behalf of all the Immediate
Past Supervisory Councillors of Local Governments CLAIMANTS
In Anambra State who served from 2014 to 2017,
whose Outstanding Entitlements and Benefits are
still being owed by the Defendants)
1. Attorney-General of Anambra State
2. Chairman, Anaocha Local Government
3. Chairman, Ayamelum Local Government
4. Chairman, Dunukofia Local Government
5. Chairman, Ihiala Local Government
6. Chairman, Njikoka Local Government
7. Chairman, Ekwusigo Local Government
8. Chairman, Nnewi South Local Government
9. Chairman, Oyi Local Government
10.Chairman, Onitsha North Local Government
11.Chairman, Onitsha South Local Government DEFENDANTS
12.Chairman, Awka South Local Government
13.Chairman, Awka North Local Government
14.Chairman, Orumba North Local Government
15.Chairman, Orumba South Local Government
16.Chairman, Ogbaru Local Government
17.Chairman, Idemili North Local Government
18.Chairman, Idemili South Local Government
19.Chairman, Anambra West Local Government
20.Chairman, Anambra East Local Government
21.Chairman, Aguata Local Government
1. C.H. ONWUEMENE – FOR THE CLAIMANTS.
2. M.J. OPUTA, WITH GIDEON UGWUANYI, – FOR THE DEFENDANTS.
Originating Summons began this suit on 25th June 2019. The suitformulated the following questions for determination:
1. WHETHER the refusal or the failure of the Defendants to pay the Claimants their outstanding allowance [sic] and all entitlements/benefits being owed to them is not a breach of the Anambra State Public Officers’ Salaries Law 2007 (ANHA/LAW/2007/10).
2. WHETHER the abrupt disruption of the Claimants’ tenure of office is not contrary to the Anambra State Local Government Law 1999 and the Local Government (Amendment No. 8) Law 2014.
The following reliefs were claimed:
A. A DECLARATION that the Claimants are entitled to their outstanding unpaid salaries, entitlements and other fringe benefits as appointed ex Supervisory Councillors[sic] who served in their respective local government councils from 2014 to 2017 by virtue of the Anambra State Public Officers’ Salaries Law 2007 (ANHA/LAW/2007/10).
B. A DECLARATION that the refusal by the Defendants to pay to the Claimants their entitlements as contained in the Anambra State Public Officers Salary Law 2007 (ANHA/LAW/2007/10) is illegal and unconstitutional.
C. AN ORDER directing the 1st-21st Defendants to pay each of the Claimants their outstanding entitlements and benefits in the sum of Fourteen Million, Seven Hundred and Eighty-One Thousand, Five Hundred and Eighty-Seven Naira, Fifty Kobo (14,781, 587.50k).
D. AN ORDER directing the 1st to the 21st Defendants to pay the cost of this suit which stands at N100,000,000.00 (One Hundred Million Naira Only).
This case is the 6th and last in the series of six sister cases, the leading case being NICN/EN/31/2019 – Hon. Obi Okechukwu & 2 Ors v. Attorney-General of Anambra State & 21 Ors, [decided on December 12 2019]. The leading case, together with this one and the other sister cases, came up first before me on 23rd October 2019, and on the agreement of counsel to the parties, all the six cases were adjourned in the leading case to 15th November 2019 for definite hearing, while the learned counsel to the claimants was ordered to give an address for service within jurisdiction immediately. The six sister cases came up as adjourned on 15th November 2019 but could not proceed to hearing on account of new processes filed. They were all adjourned in the leading case the second time to 22nd November 2019 for definite hearing.
As adjourned, all the matters came up on 22nd November 2019 for definite hearing. On this date, M.J. OPUTA, of counsel to the defendants, first moved an application for the regularization of the defence processes filed out of time. The learned counsel applied that this application be made applicable to the other five cases in the series. This application was granted and made applicable to the remaining five sister cases with cost of N20,000 in each. Thereafter, the learned M.J. OPUTA also applied that his further application for leave to use the further counter affidavit and additional written address filed irregularly be made applicable to the other five sister cases, which includes this. Thereafter, the learned C.H. ONWUEMENEalso applied for his objection against the further counter affidavit and additional written address filed by the defendants without leave to be made applicable to this and the other sister cases. The Court thereafter reserved ruling to the judgment.
After these initial applications, counsel to both parties took turns to adopt their final written addresses on the originating summons and applied for their submissions in the leading case to be made applicable to the other five sister cases, which includes this. Thereafter, the Court reserved rulingon the Notice of Preliminary Objection [NPO] argued with the main suit by the defendants to the judgment fixed for 5th December 2019. Judgment was not ready on this date. It was adjourned sine die. When it was ready, the learned counsel to the parties, were served with notices.
That is all about the trajectory of proceedings before the Court. I shall now move to the next duty bestowed on me, which is to summarisethe written addresses of the parties.
ADDRESSES OF LEARNED COUNSEL TO THE PARTIES
A. Counsel to the Claimants’ Address
Learned FUNMI FALANA franked the claimants’ written address. The learned counsel formulated two issues. They are reproduced hereunder:
1. Whether by virtue of the Local Government Law 1999 and Local Government (Amendment No. 8) Law 2014; Anambra State Public Officers’ Salaries Law, 2007; and other the [sic] relevant Laws the defendants have right to withhold and refuse to pay the Claimants their outstanding allowances and benefits.
2. Whether the purported termination or dissolution of the Anambra State Local Government Public/Political Office Holder tenures of office was not in violation of the provisions of sections 51(3) of the Local Government Law 1999 and Local Government (Amendment No. 8) Law 2014, and thereby unlawful, illegal, ultra vires, null and void and of no effect whatsoever.
Arguing issue 1, the learned counsel submitted that, because, the claimants served the Anambra State’s Local Governments between 2014 and 2017, as political office holders, they are entitled to be paid their entitlements. The learned counsel referred to tables 4, 6 and 8 of the Anambra State Public Officers’ Salaries Law 2007 [ASPOSL 2007] of Exhibit A as justifying the sum of N14,781,587.50k for each of the claimants. The learned counsel submitted that, the State refused to pay these entitlements and instead, diverted them to electioneering. The learned counsel supported his arguments with Okara v. Ndili (1989) 4 NWLR (Pt. 118) 700;AG Lagos State v. AG Federation (2005) 2 WRN 1; INEC V. Musa (2002) 11 NWLR (Pt. 778) 223; Local Government Law 1999 [ASLGL 1999]; Local Government (Amendment No. 8) Law [ASLGAL No. 8, 2014] and ASPOSL 2007 to the effect that, the courts retain the jurisdiction to declare ultravires, public officers’ arbitrariness, once proved. The learned counsel ended by urging the Court to resolve issue 1 in favour of the claimants and moved to issue 2.
Arguing issue 2, which centreson the unlawfulness of the dissolution of the legislative councils, the learned counsel was of the opinion that, the term of the claimants ran from 2014-2017 and not 2014-2016, as erroneously previously stated in some of their letters to the defendants. The learned counsel pointed out that, both the ASLGL 1999 and ASLGAL No. 8, 2014 gave three-year tenure to the claimants; and opined that, their tenure was truncated before completion; which is why they claimed for arrears of salaries and severance packages. The learned counsel rested his submissions on Eze & Ors v. Gov. of Abia State & Ors (2014) LPELR-23276, 25, B-D, to the effect that, tenure of public officers are statutorily cast-iron secured; and if truncated unlawfully, courts of law would award their full entitlements for the unexpired tenures.
The learned counsel submitted that, as the tenure of the claimants was secured by section 51(3) of the ASLGL 1999 and ASLGAL No. 8 2014; it could not be truncated. The learned counsel relied on Fakuade v. OAUTH (1993) 5 NWLR (Pt. 291) 47 and some other authorities. The learned counsel also submitted that, since the truncation of the claimants’ tenure was legally indefensible, issue 2 is liable to be resolved in favour of the claimants. The learned counsel further cited Government of Ekiti State & Anor v. Ojo & ORS 121-122 [sic], G-H; Olaniyan & Ors v. University of Lagos without further details; and Shitta Bay v. The Federal Civil Service Commission (1981) 1 SC 40. In conclusion, the learned counsel urged the Court to decide the case in favour of the claimants. That ends the written address of the learned counsel on the originating summons. I move to that of the learned defence counsel.
B. Counsel to the Defendants’Written Address
LearnedONYINYE ANUMONYE,of counselto the defendants franked this address. The learned counsel argued the NPO first, and enumerated the grounds as follows:
1. That the claimants failed to serve pre-action notice on the defendants.
2. That originating summons waswrongfully used in initiating the action.
Arguing ground 1 of the NPO, which centres on failure to serve pre-action notices, the learned counsel submitted that, Exhibits E1-E21 seriesrelied upon by the claimants as service of pre-action notices, are not connected to the claimants. The learned defence counsel opined that,the said exhibits were also wrongfully issued, contrary to section 11(2) of the State Proceedings Law, 1999 [SPL]. The learned defence counsel opined too, that, the said pre-action notices ought to have been filed at the High Court of Anambra State before subsequent service, as enjoined by a practice direction issued by the Chief Judge of Anambra State. The learned counsel submitted that, as failure to file the pre-action notices before service is contrary to statute, its service is incurably bad. The learned counsel cited Unity Bank Plc v. Olatunji (2015) 5 NWLR (Pt. 1452)to buttress his submission. The learned counsel also cited NDIC v. Ette (2016) 8 NWLR (Pt. 1514) 345 at 365-366, E-F and Bakare v. Nigeria Railway Corporation (2007) 17 NWLR (Pt. 1064) 606to show the effect of failure to serve pre-action notice. There ended the learned defence counsel’s address on ground 1 of the NPO.The learned counsel thereafter moved to ground 2 of the NPO.
Arguing ground 2 of NPO, centred on originating summons not being appropriate for this action, the learned counsel opined that, a close examination of the questions formulated by the claimants showed that, they are not seeking interpretation of any instrument or law, but merely claiming salaries and allowances. The learned counsel submitted that this suit is not in consonance with Order 3, Rule 3 of the NICN Rules. The learned counsel submitted that, the failure of the claimants to indicate the period for which they were owed when the defendants had joined issue that the claimants had been fully paid negotiated amounts agreed upon and waived their right to full payments, manifest the hostile nature of the facts of the case. The learned counsel cited Olley v. Tunji (2013) 10 NWLR (Pt. 1362), B-C [sic] to show that, originating summons does not contemplate hostile facts.
The learned counsel submitted that, irregular use of originating summons amounts to abuse of process, making the action liable to be dismissed. On this, the learned defence counsel cited C.O.M. Inc. v. Cobham (2006) 15 NWLR (Pt. 1002) 283 at 303; Saraki v. Kotoye (1992) 9 NWLR (Pt. 284) 156 at 189; andOdukwe v. Achebe (2008) 1 NWLR (Pt. 1067) 40 at 57 to 758 [sic].The learned counsel finally urged the Court to uphold the NPO; and moved to address on the merit of the substantive suit.
On the substantive suit, the learned defence counsel submitted a lone issue for the determination of the case, to wit: “whether the Plaintiff [sic] is entitled to the reliefs sought in this case”. The learned counsel submitted that, because,the claimants failed to state the period for which they were owed, they are not entitled to the reliefs claimed. The learned defence counsel submitted that, the assertion of three-year tenure was based on an abrogated law and cited Anambra State Local Government Law (Amendment No. 5) 2011 [ASLGLA No. 5, 2011]. The learned counsel submitted that, this statute nullifies issue No. 2 formulated by the claimants, making the suit liable to be dismissed. The learned counsel submitted that, the law is that, in declaratory actions, the claimants rest on the strength of their case and not on the weakness/admission of the defence. On this, the learned defence counsel cited CPC v. INEC (2011) 18 NWLR (Pt. 1279) 493 at 554, F-H.
The learned counsel submitted further that, the claimants tendered no document to prove that, they were PAYE or to prove that they were entitled to severance packages. The learned counsel submitted that, on the contrary, the defence exhibited documents showing that the claimants’ entitlements had been negotiated downward and paid thus, waiving their right to the original entitlements. The learned counsel cited Auto Import Export v. Adebayo (2005) 12 SC (Pt. 11) 74 at 125-127; Ariori v. Elemo (1983) 1SC 13 at 48-49; Olatunde v. Obafemi Awolowo University & Anor (1998) 5 NWLR (Pt. 567) 178; Saraki v. Kotoye (1990) 4 NWLR (Pt. 143) 144 and a host of other cases on the application of the doctrine of waiver.
The learned counsel submitted that, exhibits A1-A3 are not the composite copies of the law relied upon by the claimants, and that, alongside exhibits B, C1-C2, D and E1-E21, being public documents, they are equally inadmissible because, they were all not certified. The learned counsel cited sections 87-90(1)(c), 102, 104(1)-(3) and 105 of the Evidence Act. The learned counsel submitted that, as these documents are legally inadmissible, objection could be raised against their admissibility at any point. The learned counsel cited Hassan v. Maiduguri Management Control (1991) 8 NWLR (Pt. 212) 738; Eme v. Wamuoh (1991) 8 NWLR (Pt. 203) 375 and some of other authorities. The learned counsel also opined that, their exhibition in an affidavit is of no avail. On this, the learned counsel relied on Delta State Hoise [sic] of Assembly & Anor v. Democratic Peoples Party (2014) LPELR-28808 (CA) and another authority. The learned counsel submitted further that, because exhibits C1-C2 and E1-E21 had been stamped received by a public body, they became public documents and must be certified to be admissible. On this count, the learned counsel cited Afolabi v. Alaremu (2011) LPELR-8894 (CA) and another case. The learned counsel submitted that, once these documents are expunged, the case lacks evidence to anchor it and cited CPC v. INEC (supra). The learned counsel finally urged the Court to either uphold the NPO and strike out the suit or uphold the arguments on the substantive suit and dismiss the suit.
Let me now turn to the Reply on Points of Law [RPL] filed by the claimants, both against the NPO and the substantive address of the defence.
C. Claimants’ Two-Pronged RPL
LearnedJONAS O. UDENSI franked the Claimants’ RPL to both the NPO and the substantive address of the defence. Thus, the RPL are two addresses rolled into one. The learned counsel started with the NPO. On ground 1 of the NPO, which centreson non-service of pre-action notices, the learned counsel submitted that, pre-action notice is not a court’s process and but just a form of letter written either by the claimant himself or his solicitor and cited Ntiero v. NPA (2008) LPELR-2073 SC, 11, B-C. The learned counsel submitted that, it was therefore not the law that it must be filed in court to be valid; and cited Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 76 to the effect that, it is not necessary for pre-action notice to be in a particular format, once it is sufficiently framed to bring out the cause of action to enable the defendant exercise his discretion whether or not to amicably settle the matter. The learned counsel submitted that, the claimants complied substantially with these prerequisites. The learned counsel thereafter moved to ground 2 of the NPO.
Replying to ground 2 of the NPO, the learned counsel opined that, the suit was properly commenced by originating summons because, it essentially seeks to construe whether the defendants breached the ASPOL 2007,by refusing to pay the claimants’ entitlements and, whether the truncation of the claimants’ tenure,was not contrary to ASLGAL No. 8, 2014. The learned counsel submitted that, the facts of the case are, therefore not hostile and cited Jimoh v. Olawoye (2003) 10 NWLR (Pt. 828) 307 and other cases. The learned counsel submitted further that, no conflict arose from Exhibit B of the counter affidavit as alleged by the defence because, the claimants showed that the defendants syphoned monies meant to settle the claimants’ entitlements and that, the alleged agreement was between the chairmen and the State Government. The learned counsel argued that, paragraph 9-11 of the further affidavit showed further that, the claimants were paid to prevent them from protesting the non-payment of their entitlements and that, they did not authorise anybody to negotiate on their behalves.
The learned counsel argued that, the real issue to be tried is, whether, based on the relevant laws, the claimants were entitled to the benefits claimed. The learned counsel cited FAMFA Oil Ltd v. AG Federation (2003) 18 NWLR (Pt. 852) 453;Emezi v. Osuagwu & Ors (2005) ALL FWLR (Pt. 259) and two other caseson the correctness of commencing this suit via originating summons. The learned counsel thereafter argued that, even if the suit was wrongly commenced by originating summons, the proper order to make is to order filing of pleadings and not striking out and relied Jev & Ors v. Iyortyom (2014) LPELR-23000 (SC). The learned counsel opined that, in any event, enough documents have been placed before the Court to resolve whatever apparent conflict in the suit. The learned counsel ended his RPL to the NPO and moved to the RPL on the substantive address of the defence.
Replying on the issue of waiver, the learned counsel submitted that, it is not correct that the claimants waived their right to full entitlements by accepting the payment of the N500,000. The learned counsel replied further that, the claimants did not appoint anybody to negotiate on their behalves, but that, the N500,000 was paid in order to dissuade them from protesting proximate to the re-election bid of the Governor. The learned counsel argued that, the claimants had denied paragraphs 9-11 of the counter affidavit of the defendants in the relevant paragraphs of the further counter affidavit; and that, all the cases cited by the defendants’ counsel were irrelevant. The learned counsel argued that, no agreement was reachedon the purpose of the N500,000 paid. The learned counsel also submitted that, the reasons adduced by the defendants for the payment of the N500,000 was even afflicted with misrepresentation, fraud and mistake; and as such, void and cited Afegbai v. AG Edo State & Anor (2001) LPELR-, 53, A-D.
Replying the issue of placing reliance on abrogated law, the learned counsel submitted that, ASLGLA No. 5, 2011, relied upon by the defence, was only a bill proposing two years,while the extant laws,Exhibits A1-A3 of paragraphs 4-11 and Exhibits A-A25 of paragraph 12 of the affidavit in support, granted three-year tenure. The learned counsel cited Eperokun v. University of Lagos (supra), Governor Ekiti State v. Ojo (2007) 16 WRN 56, Obu v. NNPC (2003) WRN 76 and WAEC v. Obisesan (2008) 26 WRN 120 at 135; and ended his reply to the issue of abrogated law. The learned counsel thereafter moved to the next issue.
This is on the issue of non-certification of public documents. The learned counsel submitted that, attachment of public documents to affidavits takes them out of the snare of certification and cited Governor Kwara State & 2 Ors v. Irepodun Block Manufacturing Compnay & Ors (2013) 12 WRN; Ojuya v. Nzeogwu (1996) 1 NWLR (Pt. 427) 713; CRPD & Invest. Co. Ltd v. Obongo (2000) 89 NWLR (Pt. 670) 751 at 765; and Bature v. Savanah Bank Nig. Ltd (1998) 4 NWLR (Pt. 548) 438 444. The learned counsel also urged the Court to invoke the provisions of section 12 of the National Industrial Court Act 2006 [NICA] and Order 5, Rule 6(3) of the NICN Rules to take cognisance of the uncertified public documents in issue and cited Kubor v. Dickson (2013) 26 WRN 15on the need for courts to eschew technicality. The learned counsel brought the RPL to an end, by urging the Court to grant the reliefs claimed.
I take the RPL as the end of summary of the written addresses. I say this, not because, there is no further address filed, but because, I am convinced that, in law, I am not bound to countenance the further address and further counter affidavit filed by the defendants without leave. Myreasons would be given soon in my decisions.
I propose now to give my decisions. My decisions are divided into two segments. Section‘A’ deals with the preliminary issues: the NPO and processes filed irregularly by the parties. Section‘B’ deals with the substantive case on the merit, in the event that ground 2 of the objection fails; but at any event, if only ground 1 of the objection fails. This is to enable the Court of Appeal have the benefit of my opinion on the merit of the case, in case my verdict on ground 1 of the objection is not sustained at appeal, to prevent the necessity of ordering retrial, which invariably wastes judicial time.
I am bound by the tradition established for commencing a court’s decision. I hereby state that, I have carefully read and digested all the processes filed in this case. I take full note that this is originating summons, where affidavits take the place of pleadings and evidence rolled into one. And for this reason, I have taken note of the rules laid down for resolving conflicts in affidavit. Compliance with these rules would be evident in my decision. I have also taken note that, I did not summarise the contents of the affidavits filed by the parties.Nonetheless, I have carefully read and digested their contents; and shall make constant references to the pieces of evidence therein contained in the course of thisjudgment. There I go.
Section A – Decision on Preliminary Issues
Suit No. NICN/EN/31/2019 – Hon. Okechukwu & 2 Ors v. AG Anambra State & 20 Ors[Judgment delivered 12th December 2019]already referred toasthe leading case of the six sister cases, shall be the major authority for my decisions in this instant case. This is because, the facts are identical to those of this case and the processes filed and arguments canvassed are identical too. In fact, counsel to both sides adopted their arguments and submissions in the leading case for this case just like they did with respect to the other four remaining sister cases. As expected, my decisions are going to be similar too.
I take the issue of the further affidavit and the RPL filed out of time by the claimants first. There was no application, either oral or written, for regularization of same. The learned counsel to the claimants just presumptuously asked the Court to deem the further affidavit and the RPL as properly filed and served. I rely on the authority of the leading case to deem the further affidavit of the claimant and the written address attached as properly filed and served – see page 14-15 thereof. Pursuant thereto, I also order that default fee be paid personally by the learned counsel to the claimants within 7 days of this judgment. That settles the issue. I move to the issue of the further counter affidavit and the additional written address filed irregularly by the defence. I rely on the leading case yet, as my authority to discountenance these processes, with the exception of the Exhibit A attached thereto– see Okechukwu & 2 Ors v. AG Anambra State & 20 Ors [supra] p. 15-19. That ends issues arising from the processes filed irregularly by the parties. I now move to the NPO against the competence of the suit.
There are two grounds raised in the NPO. I do not wish to waste too much time on these. Just as the learned counsel to both parties adopted their submissions in the leading case [supra] with respect to the NPO,and applied that they be made applicable to this case, I too, rely on my reasoning, deductions and holdings therein, in dismissing both grounds of this NPO– see p.19-22 thereof. The NPO is accordingly dismissed. I just wish to add that, since supervisory councillors are appointed from amongst the elected councillors, the pre-action notices issued by councillors in this case equally encompass supervisory councillors. I take judicial notice that supervisory councillors remained primarily councillors. For this additional reason, the objection on failure to serve pre-action notices by the claimants in the instant case fails, and is accordingly and doubly dismissed. I shall now give my thoughts on the merit of the case.
Section B – Decision the Substantive Case
Different issues were formulated to suit the slants being projected by each side. But my view is that, all the three issues formulated by both sides could be married. In attempting to address the two questions formulated by the learned counsel to the claimants, I found that, the lone issue formulated by the defendants’ counsel becomes primarily central. This is: whether the claimants are entitled to the reliefs sought in this case. In law, it is only a party that has proved his case that could be entitled to the reliefs sought.Once a party fails to adduce cogent and compelling evidence in proof of his case, no reliefs could be granted him. It is therefore important to inquire first if the claimants have adduced sufficient evidence to be entitled to the reliefs claimed.
I have carefully read the entire files of this case and could not find where the claimants, for once,just for once, made the slightest mention of the date of their inauguration and the date their tenure was purportedlytruncated. Similarly, there was no iota of evidence [documentary or otherwise] adduced in these regards. And this is a matter that is essentially declaratory and akin to termination of appointment. In fact, most of cases cited by the claimants’ counsel are on termination of employment/appointment. In Okomu Oil Palm Company Limited v. Iserhienhien (2001) LPELR-2471 (SC) 8-9, E-C and Morohunfola v. Kwara State College of Technology (1990) LPELR-1912 (SC) 15-16, C-C, theSupreme Court held that, failure by an employee to tender important documents like letter of appointment and the document containing the terms and the conditions of service, is fatal.These cases are impari materia with the present case and apply with equal force.Failure of the claimants herein to tender their documents of assumption of office or documents of inauguration and the documents relating to their alleged dissolution is fatal to their case. The Court cannot determine the tenure of the claimants in the absence of proof of the date of their assumption of office and the date of the alleged forcible and premature eviction from office. How do the claimants want the Court to believe that they were even ex-supervisory councillors when there is no document to such effect? Courts of law, being strangers to cases, only get to know anything in suits, through the processes filed and the pieces of relevant evidence presented.
The matter is made worse for the claimants because, this case, is essentially seeking declaratory reliefs. Of the four reliefs framed, the first two are declaratory, while the other two, are merely consequential reliefs. And the appellate courts have expatiated on similar scenarios of declaratory actions and originating summons.I cite first, the Court of Appeal inNwoga v. Imo State Independent Electoral Commission & Ors (2019) LPELR-47562 (CA) 41-43, E-B:
“It is therefore obvious that whenever there is/are gaps in the case set up by a plaintiff in the supporting affidavit of an originating summons, the position of the law that a plaintiff is entitled to judgment upon the unchallenged and uncontroverted evidence, cannot be invoked…I am of the view that the plaintiff has not put enough materials to enable the Court grant him the reliefs sought’ and dismissing the Appellant’s case. This too, is eminently correct and cannot now be provided by the slant given to the facts deposed to in the affidavit in support of the originating summons.”
Hear the Supreme Court:
“It is the practice that a declaratory relief will be granted where the plaintiff is entitled to relief in the fullest meaning of the word. Furthermore the relief claimed must be something which it would not be unlawful or unconstitutional or inequitable for the court to grant. It should also not be contrary to accepted principles upon which the court exercises its jurisdiction…” – see Chukwumah v. SPDCN (1993) LPELR-864 (SC) 64-65, G-B.
The Court of Appeal further added its voice in SPDC Ltd v. Frontline Television Ltd (2011) LPELR-4952 (CA) 10-11, D-A:
“It is trite that declarations are only made when the Court is satisfied not only as to the precise nature of the interest in respect of which the declarations are sought but if sufficient evidence further establishing the claimed interest abounds. Accordingly, it is essential for the party seeking the declarations to specifically state its interest and the facts on the basis of which it asserts that interest. The onus remains on the plaintiff, the Respondent herein, to establish its claim and the law does not allow such a claimant to rely on the weakness of or the mistake in the defendant’s case.” [Underline for emphasis]
This suit therefore failed woefully to satisfy the conditions precedent to granting declaratory reliefs and reliefs in originating summons as set out in the three cases cited above. It is obvious that this suit offends Order 3, Rule 17(1)(b) of the NICN Rules, which requires that claimants exhibit all relevant documents in originating summons. The claimants failed to exhibit essential documents as indicated above, meaning that, sufficient evidence is not placed before the Court to make the declarations sought or to commence an inquiry into them. After all, inaugurations of elected councillors into local government legislative houses are conducted and documents are issued out to the councillors. At least, documents are issued to the winners in local government elections to authenticate their victories and likewise, inaugurations are done officially with documents backing them up. Dissolutions are also done officially with documents backing them up too. No document was adduced in prove of these important facts and no deposition is made with regard to the reason for their non-availability! Declaratory reliefs are not granted on the weakness of the defence but on the strength of the case presented by the claimants. The claimants have just simply failed to adduce essential evidence. The claimants are therefore not entitled to any declarations being made in their favour.
Too, the consequential reliefs sought are special damages. I cannot find that the claimants made enough materials available to grant the reliefs. I wonder how the claimants want the Court to determine the issue of the allowances and benefits been claimed in the absence of relevant evidence to determine the date they assumed office and the date they exited, in an action based on contested tenure. I wonder too, how the claimants want the Court to severe the parts of the claimed entitlements in the face of failure to prove their exact tenure – see Adama Beverages Limited v. Akam & Ors (2015) LPELR-40417 (CA) 27-28, B-C; and especially Union Bank PLC v. Onuorah & Ors (2007) LPELR-11845 (CA) 15-16, B, where the Court of Appeal stressed the need to particularize special damages and that failure in that regard is fatal:
“…I would cite the case of Joseph v. Abubakar (2005) 5 NWLR (Pt. 759) 185 at 206 where it was held: - ‘Special damages will only be awarded if strictly proved and for this, the plaintiff ought to sufficiently particularise it to enable the court decide whether all or part of it can be granted. In other words, to succeed in claim for special damages, it must be specifically pleaded and strictly proved…” [Underline supplied for emphasis]
I think the claimants ought to have itemized their entitlements year by year in their affidavits [pleadings]. The claimants have simply failed to sufficiently particularise the special damages being claimed. It follows that, even if the Court were to find for them in the declarations sought [and the Court has actually found against them], it would have been handicapped to grant the consequential reliefs. As it is, it follows that, even if the defendants did not file any process at all, and the case were to be decided on the documents of the claimants alone, the case would still fail woefully.They also failed to establish their tenure and they cannot rely on the admission of two-year tenure by the defendants. In a situation like this, I need not proceed to examine the other aspects of the case. However, I have to, in case the Court of Appeal disagrees with my decision herein. In order to obviate retrial, I must give my decisions on all issues raised. Let me state straightaway that, I place reliance squarely on my previous decision in the leading case [supra] – see p. 23-34 thereof. My detailed findings, reasons, deductions and holdings contained therein sufficiently answered the further issues pertaining to this case; and more importantly, the two issues formulated by the learned counsel to the claimants.Placing reliance on this authority, this suit is liable to be dismissed, like ithappened in the leading case. I only wish to add to the reasons for my decision in resolving the two issues formulated by the learned counsel to the claimants in favour of the defence.
I further comment on the issue of the accord and satisfaction raised by the defence. The claimants, who said they did not nominate anybody to negotiate on their behalves,yet failed to tell the Court how the N500,000 payment made to each of them was negotiated. They only said it was purportedly paid to dissuade them from protest and to enlist their support for the second term bid of the governor: whether the negotiations for the payment were done with all of them en bloc or in their individual capacities, they failed to say. How, where and by which means they were each persuaded to accept the N500,000 in lieu of protest, they did not say. They accepted there were negotiations when they claimed the payment of N500,000 was made to dissuade them from protest and to enlist their support for the second term bid of the governor. I wonder whether it is even legal to collect money to give political support or to extort monies by threat of protest, more so, government’s monies. And to make matters worse, to come out and say it in print. Be that as it may, for our purposes here, the important thing is that, the claimants failed to state how the negotiations for the payment of the N500,000 were done. Note that, the protest never took place to enable them be met en bloc.
In any case, the claimants never said they were met en bloc. From this, it is certain that, a sort of negotiation for the payment of the N500,000 took place, but how exactly it was carried out, is left blank! And with the huge number of people involved in the six cases and the twenty local governments councils involved, more particularly so, after the claimants had left offices, it seems certain that, negotiations for the payment of N500,000 could not have been done with all the claimants, either collectively or individually. It seems more certain too, that negotiation of whatever must have been done through representatives of some sort. Note that, the claimants herein did not say they set out to protest as supervisory councillors alone, but that, all the people who were being allegedly owed, set out to protest.
Thus, the claimants, who denied flatly, having any representatives to negotiate their entitlements, yet failed to supply the details of how the N500,000 collected by each of them, ostensibly to stem demonstrations and draw support for the second time bid of the Governor, was negotiated, and also failed to name those that negotiated it, must be taken to be economical with truth on the issue of accord and satisfaction canvassed by the defendants. The denial of accord and satisfaction and the collection of N500,000 without giving details regarding how it was negotiated and who the negotiators were is highly irreconcilable, and cannot therefore induce belief in any reasonable tribunal or court of law; apart from amounting to ineffective denial.
The claimants did not tender any document that showed that the N500,000 collected was to bribe them from protesting and to buy their support for the second term bid of the governor, whereas, the defendants tendered documents which appeared to have been made by uniform process evidencing the payment of the N500,000 to each of the claimants, of which the first in the series of documents contained assertion that the N500,000 was in lieu of final settlement of the entitlements of the Chairmen; and on this document, not only the chairmen were named, suggesting that others were incorporated, as explained in the lead judgment. The story of the defendants, even if not true, made more sense than that of the claimants, especially in the absence of explanation by the claimants of how the alleged N500,000 bribe was negotiated.
A court of law is not under obligation to believe utterly preposterous depositions, even if not controverted. If the claimants conceded that they accepted bribes to stay their protest and to support the second term bid of the governor, is this not synonymous to accepting that they agreed to keep quiet forever? This is more so in the face of depositions by the defendants at paragraphs 9 and 10 of the counter affidavit that the claimants were being paid their salaries, allowances and entitlements as at when due throughout their tenure, except towards the end of their tenure due to economic downturn and that, this economic downturn caused the negotiation with the representatives of the claimants and the payment of graduated sums to the claimants in lieu of full payment.
Note that, the claimants never specifically traversed the fact that they collected N500,000 or graduated sums in lieu of full payment but only said in their further affidavit that they never nominated anybody to negotiate for them – see paragraphs 13 and 14 of the further affidavit of the claimants. Now, in claiming for the purported full payment of their alleged entitlements, the claimants did not deduct the payment of the N500,000 each from the alleged full payment they now claimed and simply believed, such payments from government funds had gone down the drain! What I see here is that, the claimants were playing games. He who comes to equity, it is said, must come with clean hands. The hands of the claimants herein were soiled and as such, the declaratory action asking for the exercise of the equitable powers of the Court cannot be exercised in their favour. This equitable maxim was well articulated in Seed Vest Microfinance Bank Plc & Anor v. Ogunsina & Ors (2016) LPELR-41346 (CA) 30-31, F-B:
“It is often stated that one who comes to equity must come with clean hands (or alternatively, equity will not permit a party to profit by his own wrong). In other words, if you ask for help about the actions of someone else but have acted wrongly, then you do not have clean hands and you may not receive the help you seek. I am not saying that a ‘bad person’ cannot obtain the aid of equity, no, equity does not demand that its suitors shall have led blameless lives. All I am saying is that if there is a nexus between the applicant’s wrongful act and the rights he wishes to enforce, then the defence of unclean hands may apply.” – [Underline supplied for emphasis]
There is clearly a nexus between the reprehensible conduct of the claimants in issue and the claim for full payment of their alleged entitlements. They could not have participated in sharing government funds and failed to take this into account in demanding for the alleged full payment by deducting the bribe they agreed to have collected; and yet, expect the Court to assist them, even if they prove their entitlements, to recover such while government loses the N500,000 bribe collected by each and every of the claimants.The claimants conceded by implication the N500,000 paid each of them was a bribe and not part-payment of their entitlements. They must take the legal implication and consequences of this admission.
Let me also add this to the issue of whether the claimants had two or three-year tenure. At p. 55-57 of file is the petition on behalf of the claimants to the House of Representatives on the subject matter of this suit. At the second page[cover page discounted], second paragraph thereof, I found this:
“From the above, the petitioner [sic] contends that since they [sic] assumed officer [sic] in the year 2014 till the expiration of their tenure in 2016, they have not received allowances as statutory [sic] provided in the Anambra State law [sic] cited above.” [Underline for emphasis]
From the above, it is very clear that, the claimants agreed they had two-year tenure. The same admission against interest is contained at the fourth paragraph of the same petition. In the document, nothing signifies that the tenure of the claimants was cut short. The language signifies the completion of tenure and dissolution at the end of tenure in accordance with law. The claimants’ subsequent contrary depositions that they had three-year tenure, without any explanation whatsoever, is a glaring summersault, and as such, a further testimony of a clear case of material contradiction in the case of the claimants. It amounts to mere depositions of theirs challenging their documents containing admission against self thus, establishing clear falsehood of their claim to three-year tenure and invariably to any tenure at all. As the Court is not in a position to pick from the two inconsistent pieces of material evidence, the claimants therefore failed totally in establishing their tenure; and inferentially, their entitlements to the tenure-connected reliefs claimed in this suit. When this scenario is placed alongside the findings that the claimants failed to tender the documents of their inauguration or assumption of office and that, they also failed to indicate the exact date of the purported illegal truncation of their tenure, it simply shows that, the claimants had no reasonable cause of action.
Again, with the depositions in paragraphs 10, 12, and 15 of the further affidavit of the claimants that, they are now claiming for their entitlements for the unspent and allegedly truncated third year alone, the finding that they did not prove their entitlements on facts and law to three years further shows that, the case was dead on arrival.These paragraphs also clearly showed that, they conceded they were paid their full entitlements on two-year tenure and since they are not entitled to three-year tenure, their entitlements have been fully settled. Thus, the statement contained in the petition of the claimants to the House of Representatives at p. 55-57 of file earlier quoted at p. 17 of this judgment to the effect that, the claimants had not received allowances as statutorily provided since 2014 to the expiration of their tenure in 2016 is contradictory to the claimants’ depositions in paragraphs 10, 12 and 15 of the further affidavit that they are only claiming for salaries and allowances for the unspent third year, meaning that, they conceded full payment of their entitlements between 2014 and 2016. This is therefore another instance of essential contradiction making both pieces of the contradictory evidence unreliable and liable to be jettisoned. The implication being that, the claimant doubly failed to prove their alleged entitlements.
I also have the following addition to make to the issue of ASLGLA No. 5, 2011. The defendants clearly, and at the earliest opportunity, referred to the ASLGLA No. 5, 2011 as law; and not as, bill [see paragraph 6 of the counter affidavit]; though, exhibited an incomplete copy of it containing the relevant section relied upon, just like the claimants did with regard to the ASLGL 1999, whereby they also merely exhibited an incomplete copy containing only the sections relied upon. The defendants also clearly stated at the earliest time in their written address that the ASLGLA No. 5, 2011 abrogated the ASLGL 1999. Thus, the purpose for which the defendants cited the ASLGLA No. 5, 2011 was made manifest at the earliest time. Thus, the first thing the claimants ought to have done, if they doubted the authenticity of the ASLGLA No. 5, 2011 and believed it was merely a bill not duly passed by the House of Assembly of Anambra State and assented accordingly, was to apply for the Certified True Copy [CTC] of the composite copy of the same instrument and see if the instrument was not duly signed to know that, it was actually not a law but a bill or prove in any other way that, it was forged; for, the only way by which a CTC could be voided is proof of forgery of same – Okadigbo & Ors v. Ojechi & Ors (2011) LPELR-4687 (CA) 35, A.
After all, counsel is presumed to know that a law is to be construed holistically. The fact that the defendant did not attach the composite copy of the law to show its due enactment and assent does not detract from its legal force as a statute, once it was duly passed and assented. It is the claimants who had reason to say it was a bill that needed to prove this. Once the defendants cited it as a law, presumption of judicial notice springs up in favour of the citation;and that, of regularity of official acts in favour of the CTC – see Right Choice Electronics Limited v. Kelvin Festus International Limited (2012) LPELR-19726 (CA) 28-29, C-A. And the claimants who doubted this must take up the burden of proving the contrary by immediately searching for the composite copy to see if the bill was duly passed and assented accordingly.
If the defendants decided to game-play this important point in their case, they must take the benefits and disadvantages of the game plan. If they decided to capitalize on the fact that the heading of the instrument in question contains the word “bill” and not ‘law’, and if the position of law on when a bill becomes law is different from their view, they must sink with their game plan. They ought to have known that non-production of the composite copy of a statute does not detract from the potency of such statute. A statute is by law judicially noticed; meaning that, whether or not the full copy was exhibited at the initial stage, the Court is bound to look for the composite copy, once it is touted as statute or ask counsel to produce the composite copy at any time before the delivery of judgment. This is because, in the first place, counsel or parties had no duty to exhibit a statute, as the law imposes on the judge, the burden to look for statutes – see Order 3, Rule 17(1)(b) of the NICN Rules, which obviates the need to exhibit statutes in originating summons. Hence, if counsel later provided the composite copy, as happened in this case, counsel was merely helping the Court to make its job easy.
Once the claimants or their counsel failed to take the appropriate steps before filing their further affidavit and went ahead to file their further affidavit and RPL without deposing to evidence of forgery of ASLGLA No. 5, 2011 or without making even mere cursory reference to forgery in the further affidavit, their counsel could not, at a date fixed for definite hearing, begin to cavil at the composite copy of the statute now supplied in his oral address. The learned counsel’s oral address is not evidence and cannot take the place of evidence. It is what it is, assistance to the Court on issue of law. And the Court is not bound to accept that assistance if its own research shows that the position of law on the issue is different from that canvassed by the learned counsel to the claimants. This is a case fought on affidavits where the strands of evidence relied on by parties are already before the Court. And the Court is bound to judge parties according to the evidence on record. It should be noted that, further affidavit by the claimants, as rightly submitted by the learned counsel to the claimants, is the last in the series of affidavits in originating summons. As the defendants could only file further counter affidavit by the leave of Court, so too, the claimants could only file any further-further affidavit or process by the leave of Court, first sought and obtained.
The special nature of originating summons must be taken into consideration whereby affidavits constitute both the pleadings and evidence. Thus, at the filing of further affidavit or further and better affidavit by the claimants, which equates reply pleadings, pleadings and evidence are completed and issues completely joined by the parties. While it is the law that parties are not totally precluded from filing further-further affidavits or further counter affidavits at the close of pleadings, just like in cases commenced by complaints [writ of summons] whereby leave could be sought to file amendment or further pleadings after close of pleadings, leave of this Court must first be sought and obtained to file additional affidavits not provided for by the rules of this Court, especially when a case had been adjourned for definite hearing.
This is more so, in trials on affidavits where evidence is also closed at the close of affidavits. In this particular instance, the claimants’ counsel filed no motion for such leave nor orally applied for same but just presumptuously asked for adjournment to enable him file further processes after objecting to the further counter affidavit filed by the defendants on the ground of its being irregular because the rules of this Court did not provide for it. Just like the learned counsel to the claimants argued and objected against the further counter affidavit filed by the defendants, precisely on the same reasons adduced, the claimants’ counsel is caught by the self-destructive argument. He cannot file further processes because the rules of this Court did not provide for such. What is sauce for the goose is sauce for the gander.
The learned counsel to the claimants cannot be allowed to blow hot and cold at the same time on the same issue. He cannot at one length argue that the further counter affidavit filed by the defendants is irregular and later turn round to ask the Court to adjourn the matter fixed for definite hearing to enable him react to what is allegedly irregular by filing further processes, which by his argument, must be irregular too. Having argued that, the further counter affidavit filed by the defendants was irregular, the learned counsel to the claimants is estopped from filing further processes that are irregular too. He must await the decision of the Court on his objection and not to play the game of approbating and reprobating on the same issue. He cannot eat his cake and have it. The claimants had reacted in their further affidavit to the issue of ASLGLA No. 5, 2011 being a law abrogating ASLGL 1999 by saying, it was merely a bill without stating that it was forged and the defendants have produced a composite copy duly assented, which, like I earlier held, the Court could even search out by itself or order the learned counsel to the defendants to produce at any time before judgment.
The claimants must therefore await the Court’s decision on whether or not it is a bill. The learned counsel never gave reason too, to show what prevented the claimants from reacting appropriately in their further affidavit to the issue of ASLGLA No. 5, 2011 being a law. They have reacted that it was a bill – see paragraph 8 of their further affidavit. So, I do not know what the claimants’ counsel wanted to take adjournment to do. Adjournment of a case fixed for definite hearing the second time could not be taken on platter of gold to allow a party to go and fish for more arguments or facts after fully utilizing the opportunity to present his facts and arguments – see Order 38, Rule 6(3) of the NICN Rules and the proviso thereto. More so, this is a case that the rules of this Court enjoined to be fast-tracked – see Order 25, Rule 1(4), a provision that the learned counsel to the claimants referred to when it suited him before he later turned round to ask to be allowed to delay the matter without cogent reasons.
This attitude amounts to speaking from both sides of the mouth and cannot be tolerated by any court. The behaviour of the learned counsel to the claimants is tantamount to that of a counsel who adopted the defence strategy of resting his case on that of the other side or the document of the other side when he had opportunity of filing a defence and decided not to, but only began to shift position when he sensed that his point of law already argued might, after all, not be right. He cannot eat his cake and have it. He must bear the full consequences of the strategy he took, if it boomerangs. In any case, the learned counsel to the defendants never really told the Court what exactly he wanted to do in the further processes he wanted to take adjournment to file. He only said he wanted to react to the further counter affidavit filed by the defendants after objecting to its use and never told the Court he was withdrawing the objection.
I am not aware that adjournment could be sought and granted to enable a counsel to fish for more arguments or evidence after the time allotted for same had lapsed without giving cogent and compelling reasons and telling the Court what exactly it is that he proposed to do. The issue of ASLGLA No. 5 2011 being a bill or law is one of interpretation of the relevant provisions of the Constitution based on the facts before the Court. It is clear that the claimants simply had a bad case, made worse by bad presentation too.
Be that as it may, I want to make a final remark before dismissing this case.
I wish to point out to counsel and parties in this suit that, cases are fought and won on the basis cogent and compelling evidence; and not on the basis of sentiments or sensationalization. A lot of newspaper cuttings and petitions to extra-judicial bodies were exhibited in the purported proof of this case. These pieces of evidence are completely useless! Yes.Efforts rather should have been concentrated on sourcing the right pieces of documentary evidencerather than dissipating energies on the costly and non-profitable venture of sourcing these most useless pieces of evidence. And the irony of it is that, these useless pieces of evidence turned round to become lethal to the case of the claimants. That is the outcome of fighting dirty.
Fighting dirty throws up a lot of things, some against the fighter, which is what has happened in the instant case. It is ironical that, from these useless pieces of documents attached by the claimants, the self-destructive contradictory evidence was unearthed to show that, the claimants did not prove their tenure!
Lesson: care must be taken not to adduce evidence that adds no real value to a case other than sensationalization, where careless statements are often made, and once tendered, becomes evidence against interest.
Be that as it may, I hereby dismiss this suit in its entirety as totally lacking in merits. I award no cost.
Judgment is accordingly entered.
HON. JUSTICE OLUWAKAYODE O. AROWOSEGBE