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. BESTLEY CHINEMELUM OKOYE
2. HON. FRANCIS MMADUABUROCHUKWU NNANNA
3. HON. WILSON UGOCHUKWU ONYEKWELU
(For themselves and on behalf of all the Immediate
Past Council Leaders of the Legislative arm of Local CLAIMANTS
Governments in Anambra State who served State
who served from 2014 to 2017, whose Outstanding
Entitlements and Benefits are still being owed by
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 commenced this suit on 25th June 2019 and sets down 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 elected ex council leaders 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 Twelve Million, Nine Hundred and Seventy-Two Thousand, Three Hundred and Twenty-Five Naira (12,972,325).
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 matter is the fifth in a series of six sister cases. The first in the series being: NICN/EN/31/2019 – Hon. Obi Okechukwu & 2 Ors v. AG of Anambra State & 20 Ors. All the six cases came up first before me on the 23rd October 2019 with the first in the series coming up first. Constant references would be made to the first in the series because, several applications by counsel and decisions by the Court affecting the others, including this one, were made in the first and made applicable to the others. On this date, on the agreement of counsel to the parties, this case was adjourned in the first in the series,to 15th November 2019 for definite hearing;and the Court also directed the learned counsel to the claimants to provide the learned counsel to the defendants, an address within jurisdiction for service immediately.The whole series came up as adjourned on 15th November 2019 but, could not proceed to definite hearing because of issues connected with the new processes filed. They were all therefore adjourned to 22nd November 2019 for definite hearing.
They all came up as adjourned. But before the hearing, there were some preliminary applications. First, the learned M.J. OPUTA moved application, in the first in the series, for the regularization of the defence processes filed out of time and prayed that this application be made applicable to the remaining five in the series. The application was granted unopposed with cost of N20,000 made applicable to the remaining five sister cases, amongst which is this. The learned OPUTAalso prayed the Court to apply his previous application, made in the first in the series, for leave to use the further counter affidavit and the additional written address filed, applicable to this, like the others in the series. The learned C.H. ONWUEMENElikewise, relied on his previous objection, in the first in the series, to the further counter affidavit and the additional written address of the defendants, and urged the Court to make the objection applicable to this. The Court thereafter reserved its rulings to the judgment.
Thereafter, both counsel proceeded to adopt their addresses in the substantive case. They both applied too, that, their submissions in the first in the series be made applicable to this, like the others in the series. But the learned counsel to the defendants first drew attention to the Notice of Preliminary Objection [NPO] in the defendants’ address while the learned counsel to the claimants also indicated that the claimants written address captured the NPO. Thereafter, decisions on the preliminary applications and the NPO were reserved to the judgment; and, the judgment was fixed for 5th December 2019.It was not ready on this date and therefore, adjourned off record sine die. Today’s date was communicated to the learned counsel to the parties at the completion of the judgment.
Let me now summarise the written addresses of the parties.
WRITTEN ADDRESSES OF COUNSEL TO THE PARTIES
A. Address of Counsel to the Claimants
LearnedFUNMI FALANA franked the claimants’ written address.Two issues were therein submitted for the determination of the Court, to wit:
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.
Under issue 1, the learned counsel submitted that, the claimants served the Anambra State’s Local Governments between 2014 and 2017 as political office holders and thus, entitled to be paid their entitlements. The learned counsel referred to tables 4, 6 and 8 of the Anambra State Public Officer’s Salaries Law 2007 [ASPOSL 2007] of Exhibit A as justifying the sum of N12,972,325 for each claimant. The learned counsel submitted that, the State refused to pay and instead, diverted the moneys to electioneering. The learned counsel supported his arguments withOkara 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.
Under issue 2, which is on the unlawfulness of the dissolution of the Local Government, the learned counsel was of the opinion that, the term of the claimants ran from 2014-2017 and not 2014-2016, as erroneously stated in some of theirprior letters to the defendants. The learned counsel pointed out that, the both the ASLGL 1999 and ASLGAL No. 8, 2014 gavethree-year tenure to the elected officers of the Local Government Councils; and opined that, the tenure of the claimants’ was truncated at two years; which is why the claimants claimed for their 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; and if truncated unlawfully, courts of law would award full salaries 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 decided 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. Concluding this address, the learned counsel finally urged the Court to enter judgment in favour of the claimants. That ends the address. The next in line is the defendants’ written address against the originating summons.
B. Defendants’ Counsel’sWritten Address
LearnedONYINYE ANUMONYE franked this address. The learned counsel took the NPO first; and stated the grounds as follows:
1. The claimants failed to serve pre-action notice on the defendants.
2. This suit is an abuse of process, in that, it was wrongly commenced by originating summons.
Under ground 1 of the objection, on issue of service of pre-action notice, the learned counsel argued that, Exhibits E1-E21 series, which the claimants relied on as service of the pre-action notices, have no connexion with the claimants; and that,they were not also validly issued in accordance with section 11(2) of the State Proceedings Law, 1999 [SPL 1999]. The learned counsel submitted further that, a perusal of Exhibits E1-E21 series did not support the fact that, they were served on the defendants. The learned counsel opined that, the said pre-action notices did not also show that, they were filed at the High Court of Anambra State. The learned counsel submitted that, by virtue of a practice direction issued by the Chief Judge of Anambra State, pre-action notices must first be filed in Court before it could be lawfully served on public officers. The learned counsel submitted that, failure to follow the prescription of statutes, is an unpardonable irregularity and cited Unity Bank Plc v. Olatunji (2015) 5 NWLR (Pt. 1452) and some other cases in support. 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) 606 on the effect of failure to serve pre-action notice. The learned counsel brought his arguments on failure to serve pre-action notices to an end; and moved to the second ground of the NPO.
On the second ground of the NPO, which is centred on the wrongfulness of commencing this action with originating summons, the learned counsel opined that, a perusal of the questions formulated showed that, the claimants are not seeking interpretation of any law or document, but merely making claims for salaries and allowances. The learned counsel cited Order 3, Rule 3 of the NICN Rules and argued that, the claims of the claimants do not fall within the confines envisaged therein. The learned counsel submitted that, because, the claimants did not specify the period for which they were owed, the hostile nature of the case is proved. The learned counsel contended too, that, because, the counter affidavit had joined issue that the entitlements of the claimants had been fully paid, the hostile nature of the facts become more poignant; and that, this becomes more accentuated because,the defendants also contended that, the claimants had waived their right to full benefits through their nominated leaders. 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, using originating summons wrongfully is a specie of abuse of process, which makes the action liable to be dismissed and 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], to the effect that, the suit was struck out for being wrongly commenced via originating summons. The learned counsel, at this point, brought his arguments to an end, by urging the Court to uphold the NPO. The learned counsel thereafter moved to the address on the substantive suit.
Arguing against the substantive suit, the learned counsel formulated one issue, which is: “whether the Plaintiff [sic] is entitled to the reliefs sought in this case”. The learned counsel submitted that, the claimants are not entitledbecause; they failed to specify the period for which they were owed. The learned counsel argued further that, the claimants based their claim of three-year tenure on a law that was abrogated before the commencement of their tenure. The learned counsel relied on Anambra State Local Government Law (Amendment No. 5) 2011 [ASLGLA No. 5, 2011]. The learned counsel submitted that, by reason of this law, issue No. 2 formulated by claimants has no anchor and as such, liable to be dismissed. The learned counsel submitted that, where declaratory reliefs are claimed, the claimants must rest on the strength of their case and not on the weakness or admission of the defence and cited CPC v. INEC (2011) 18 NWLR (Pt. 1279) 493 at 554, F-H.
The learned counsel submitted further that, the claimants failed to adduce documents to show that, they were PAYE, or to prove that, they were entitled to severance packages; and that, the defence had exhibited documents proving that the claimants’ entitlements had been negotiated downward and fully settled thus, estopping them from laying further claim to the full benefits. 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) 144and a host of other cases on the doctrine of waiver and its applicability.
The learned counsel submitted that, exhibits A1-A3 are not the composite copies of the laws relied upon by the claimants, while together with exhibits B, C1-C2, D and E1-E21, are also inadmissible because, they are not certified. For this, the learned counsel relied on sections 87-90(1)(c), 102, 104(1)-(3), 105 of the Evidence Act. The learned counsel submitted that, these documents,being totally inadmissible in law, objection could be raised against them at any point and 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, it was immaterial that they were annexed to affidavit and cited Delta State Hoise [sic] of Assembly & Anor v. Democratic Peoples Party (2014) LPELR-28808 (CA) and another authority. The learned counsel submitted further that, exhibits C1-C2 and E1-E21, having being stamped received by a public body, become public documents; and ought to be certified to be admissible. The learned counsel cited Afolabi v. Alaremu (2011) LPELR-8894 (CA) and another case on this point. The learned counsel submitted that, rejection of these documents, being the fulcrum of the claimants’ case, spells doom for the case, and cited CPC v. INEC (supra).Arising from the foregoing, the learned counsel was of the view that, this case ought to be dismissed. In concluding the written address, the learned counsel to the defendants urged the Court either to uphold the NPO or dismiss the case.
That brings the written address of the defence to an end.Let me now turn to the RPL filed by the claimants,both against the NPO and the substantive address of the defence.
C. Claimants’ Reply to the NPO and RPL
LearnedJONAS O. UDENSI franked the Claimants’ reply to the NPO and reply on points of law to the substantive address. These two addresses are rolled into one. I start with reply to the NPO. On ground 1 of the NPO, which is on issue of non-service of pre-action notices, the learned counsel cited Ntiero v. NPA (2008) LPELR-2073 SC, 11, B-C and submitted that, pre-action notice is not a court’s process and that, it is just in form of a letter written either by the claimant himself or his solicitor. The learned counsel submitted that, it is therefore erroneous to say it must be filled in court to be valid and cited Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 76to the effect that, it is not necessary for pre-action notice to be in a particular format once it contains sufficient materials showing the cause of action to enable the defendant determine whether to settle the matter amicably. The learned counsel submitted that, the claimants have substantially complied with the law in relation to service of pre-action notice; and moved to ground 2 of the NPO.
Arguing ground 2, centred on the inappropriateness of commencing the suit by originating summons, the learned counsel opined that, the suit was properly commenced by originating summons, in that, it mainlyseeks to construe whether the refusal of the defendants to pay the claimants their full entitlements is not in breach of the ASPOL 2007 and, whether the truncation of their tenure, is not contrary to ASLGAL No. 8, 2014. The learned counsel submitted that, therefore, there is no substantial dispute of facts. The learned counsel cited Jimoh v. Olawoye (2003) 10 NWLR (Pt. 828) 307 and other cases. The learned submitted that, the argument of the learned counsel to the defendants that, conflict arises by virtue Exhibit B of the counter affidavit is untenable because, the claimants have proved that monies meant to settle the claimants’ entitlements were syphoned by the defendants and that, the purported agreement was between the chairmen and the State Government alone. The learned counsel argued that, paragraph 9-11 of the further affidavit showed further that, the claimantsreceived the monies as palliatives to assuage their anger; and that, they did not authorise anybody to negotiate on their behalf.
The learned counsel argued that, the real issue to be tried is, as to the tenure of the claimants and whether, based on the relevant laws, they were entitled to salaries and severance benefits. The learned counsel cited FAMFA Oil Ltd v. AG Federation (2003) 18 NWLR (Pt. 852) 453and submitted that, originating summons is deployed for the construction of documents, instruments and written laws, as in this case; and argued that, Emezi v. Osuagwu & Ors (2005) ALL FWLR (Pt. 259) and two other cases fully support the commencement of this suit by originating summons. The learned counsel thereafter argued that, in the event that the Court comes to the conclusion that, the suit was improperly commenced by originating summons, the proper order to make is to order pleadings and not striking out or dismissal.The learned counsel reliedJev & Ors v. Iyortyom (2014) LPELR-23000 (SC). The learned counsel also submitted that, enough documents abound to resolve whatever conflict thatmay be apparent in the affidavits of parties, and as such, there would be no need to order pleadings. The learned counsel brought his address against the NPO to an end and moved to the RPL to the substantive address of the defendants.
On the issue of waiver, the learned counsel submitted that, it is not true that the claimants waived their right to full entitlements by accepting the N500,000 and that, they did not appoint anybody to negotiate on their behalf, but that, the N500,000 was paid in order to stop them from protesting proximate to the re-election bid of the Governor. The learned counsel argued that, by the relevant paragraphs of their further affidavit, the claimants had denied paragraphs 9-11 of the counter affidavit of the defendants, where these allegations were contained; and that, all the cases cited were irrelevant. The learned counsel argued that, there was no consensus ad idem on the purpose of the N500,000.; and that, the reason given for the payment and the purpose were even afflicted with misrepresentation, fraud and mistake. The learned counsel submitted that, the purpose and reason for the payment, having been tainted with fraudulent misrepresentation, is void and, cited Afegbai v. AG Edo State & Anor (2001) LPELR-, 53, A-D.
On the issue of placing reliance on abrogated law, the learned counsel submitted that, the argument that the claimants relied on repealed law for their claim, is not right, in that, the purported amendment: ASLGLA No. 5, 2011, which was cited by the defendants, was only a bill proposing two years and that, the extant laws, are the ones exhibited by the claimants: Exhibits A1-A3 of paragraphs 4-11 and exhibits A-A25 of paragraph 12 of the affidavit in support. 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, in support of his opinion, and ended on the issue.
On the issue of non-certification of public documents, the learned counsel submitted that, a public document attached to affidavit escapes the snare of certification. On this, the learned counsel 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 subsequently 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 exhibits in issue. The learned counsel cited Kubor v. Dickson (2013) 26 WRN 15 to the effect that, courts should be more interested in substantive justice than technical points. The learned counsel finally urged the Court to grant the reliefs claimed by the claimants.
For me, that is the end 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 irregularly. I will give my reasons shortly in my decision.
The next thing is to give my decision. My decision is divided into two segments. Part ‘A’ deals with preliminary issues like the NPO and my reasons for declining to take cognisance of the further processes filed by the defendants. Part ‘B’ deals with the substantive case on the merit, in case ground 2 of the objection fails; but at any event, if only ground 1 of the objection fails. This would give the Court of Appeal 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 ordering retrial and waste of judicial time.
As is customary, I hereby state that, I have carefully read and digested all the processes filed in this case. I take full cognisance that this is originating summons, where affidavits take the place of pleadings and evidence rolled into one. And for this reason, I have taken cognisance of the rules laid down for resolving conflicts in affidavit, and compliance shall be evident in my decision. I have also noted that, I did not summarise the contents of the affidavits filed by the parties, but nonetheless, I have carefully read and digested their contents. References to their contents in the course of this judgment will justify the assertion. I now go to my decision.
Part A –Decision on Preliminary Issues
First of all, I wish to state that the facts ofSuit No. NICN/EN/31/2019 – Hon. Okechukwu & 2 Ors v. AG Anambra State & 20 Ors[Judgment delivered 12th December 2019]are identical to those of this case. Like I mentioned earlier on, Okechukwu & 2 Ors v. AG Anambra State & 20 Ors [supra] is the first in the series of six sisters cases. The processes filed and arguments canvassed are identical too. In fact, counsel to the parties adopted their arguments and submissions in the first in the series for the instant case. As expected, my decisions are going to be similartoo. Therefore, the first in the series is relied on as the principal authority for my decisions in the instant case.
I take first, the issue of the further affidavit and the RPL filed out of time by the claimants. The learned counsel to the claimants just presumptuously asked the Court to deem the further affidavit and the RPL as properly filed and served. Neither oral nor written application for regularization was made or filed. I abide the decision I reached in the first in the series just cited above by deeming the further affidavit and the RPL attached as properly filed and served – see page 14-15 thereof for my reasons. I also order the learned counsel to the claimants to personally pay the default feethereby incurred. He should therefore approach the Registry of the Court for payment of the penalty thereon, latest seven days after the delivery of this judgment. That settles that. I now come to the issue of the further counter affidavit irregularly filed by the defendants and the accompanying further written address.Just like I held in the first in the series, I discountenance them with the exception of the Exhibit A attached thereto– see Okechukwu & 2 Ors v. AG Anambra State & 20 Ors [supra] p. 15-19. Having done with the further counter affidavit and the RPL, I now move to the NPO against the competence of this suit.
I intend not to waste time on this too. Just as the learned counsel to both parties adopted their submissions in the first in the series, I too, rely on my reasoning and deductions therein, in dismissing the NPO herein and hold that, this Court’s jurisdiction to entertain this suit remains intact – see p.19-22 thereof. The NPO is accordingly dismissed. This action shall be heard on the merit. I only need to add that, the pre-action notices issued in this particular case, enured to the claimants, who are Leaders of the Local Government Legislative Houses because, leaders of the legislative houses of local governments in Nigeria are elected from amongst the councillors, and by the councillors themselves; and thus, remain,at all times, councillors. I take judicial notice of this fact to make the pre-action notices issued in respect of the ex-councillors applicable to Leaders of the Legislative Arms of the Local Governments.The objection of the learned counsel to the defendants in that regard therefore,doubly lacks merit, and is accordingly dismissed. I shall now give my decision on the merit of the case.
Part B – Decision on the Merits of the Substantive Case
The learned counsel to the parties formulated different issues in accordance with the slant each side intended to project. I adopt the two issues formulated by the learned counsel to the claimants – see p. 4 abovein.I do this because; it is the primary responsibility of the claimants to formulate questions for determination in originating summons.
However, in attempting to address these questions, 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. This issue raises the question whether the claimants have proved their case as required by law. Once a party fails to adduce cogent and compelling evidence in proof of his case, no reliefs could be granted him. Hence, I propose to see if the claimants herein adduce sufficient evidence to activate the jurisdiction of the Court over the questions posed for the originating summons. Let me also state clearly that, the first in the series of sister cases, that is:Okechukwu & 2 Ors v. AG Anambra State & 20 Ors [supra] is also the principal authority for my decision in this segment.
I have carefully read the entire files of this case and could not find where the claimants, for once, made the slightest mention of the date of their inauguration and the date they were allegedly illegally forced out of office. There was equally no scintilla of evidence, documentary or otherwise, in these regards. And this is a declaratory action akin to termination of 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-CtheSupreme Court has held that, where an employee fails to tender vital documents like the letter of his appointment and the document containing the conditions and terms of the contract, there is no jurisdiction for the Court to proceed on any further inquiry. The cases are impari materia with the present. Mutatis mutandis, they therefore apply with equal force. The Court cannot determine the tenure of the claimants in the absence of proof of the dates of their assumption of office and the date of alleged forcible eviction from office. How do the claimants want the Court to believe that they were even ex-leaders of the legislative houses, when there is no document to such effect? The claimants should realise that, courts of law only get to know anything in suits through the processes filed and 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, which are not declaratory, are merely consequential to the preceding declaratory reliefs. Both the Court of Appeal and the Supreme Court have held in relation to declaratory actions and originating summons that:
“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.” – see the Court of Appeal in Nwoga v. Imo State Independent Electoral Commission & Ors (2019) LPELR-47562 (CA) 41-43, E-B.
The Supreme Court opined:
“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]
It is therefore clear that, this suit failed woefully to satisfy the conditions precedent to granting declaratory reliefs and reliefs in originating summons. This suit clearly offends Order 3, Rule 17(1)(b) of the NICN Rules. It fails to exhibit essential documents, meaning that, sufficient evidence is not placed before the Court to make the declarations sought or to commence an inquiry into them. Thus, the suit offends against the principles established for grant of declaratory reliefs too, as enunciated in the cases quoted above. It is good for the claimants to realise that, declaratory reliefs are not granted on the weakness of the defence but on the strength of the case presented by the claimants.
It is also necessary to point out that;the consequential reliefs sought are special damages. I cannot find that the claimants made enough materials available to grant the consequential 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 how the claimants want the Court to severe the parts of the claimed entitlements in the face of failure to prove their exact tenure, even if the Court per chance comes to the conclusion that they are only entitled to two-year 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 explained the need forstrict proof and particularization in claims for special damages and effect of failure in that behalf:
“…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 yearand how they arrived at the cost of N100,000,000.00 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, it would have been handicapped to grant the consequential reliefs.
Discounting the response of the defendants, the case fails woefully on consideration of the claimants’ processes alone. They also failed to establish their tenure and they cannot rely on the admission of two-year tenure by the defendants. Ordinarily, I need not proceed to examine the other aspects of the case, but I have to do, in case the Court of Appeal disagrees with my decision abovein. And in doing this, I place reliance squarely on my previous decision in the first in the series:Okechukwu & 2 Ors v. AG Anambra State & 20 Ors [supra] p. 23-34. The detailed findings, reasons and deductions and holdings contained therein sufficiently answer the further issues pertaining to this case; and more importantly, in relation to the two issues formulated by the learned counsel to the claimants.Placing reliance on this authority, this suit is liable to be dismissed, like the first in the series. But I propose to add to the reasons for my decisions therein.
I take the issue of the accord and satisfaction relied upon by the defendants. The claimants, who said they did not nominate anybody to negotiate on their behalf, 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. 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 moniesby means of 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 N500,000were 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 in 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 sort. Note that the claimants herein did not say they set out to protest as Leaders 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. A court of law is not under obligation to believe utterly preposterous depositions, even if not controverted.
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 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 presented by 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 evidence from the claimants, they therefore failed totally to establish 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.
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 a law; and not, bill; though, exhibited an incomplete copy of it, containing only 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 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 opportunity. 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– Okadigbo & Ors v. Ojechi & Ors (2011) LPELR-4687 (CA) 35, A.
The fact that the defendants 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. The defendants had a presumption of law in their favour that, once a law is cited, the citer needs not prove it. The Court must take judicial notice. There is also presumption of regularity of the CTC – see Right Choice Electronics Limited v. Kelvin Festus International Limited (2012) LPELR-19726 (CA) 28-29, C-A.
If the defendants decided to game-play this important point of law in their case, they must take the benefits and disadvantages of their 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. Hence, if counsel later provided the composite copy, as happened in this case, he 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 mere reference to forgery in the further affidavit, their counsel cannot, 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 and the defendants could only file further counter affidavit by the leave of Court.
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 amend or file further pleadings after close of pleadings, leave of this Court must also, 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 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. 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 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 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, just to allow a party to go and fish for more arguments or facts after fully utilizing the opportunity to present his facts and arguments.
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 case 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 must bear the full consequences of the strategy he took, if it boomerangs. In any case, the learned counsel to the claimants never really told the Court what exactly he wanted to do in the further processes he wanted to file. He only said he wanted to react to the further counter affidavit filed by the defendants after objecting to the use of the further counter affidavit and never told the Court he was withdrawing the objection canvassed for the new processes proposed.
I am not aware that adjournment could be sought and granted to enable a counsel to fish for more arguments and 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.It is clear that the claimants simply had a bad case badly presented too.And in any case, the further counter affidavit had been discountenanced.Let me make a conclusive remark before dismissing this case as totally lacking in merits.
It is necessary to point out to counsel and parties in this suit that,cases are fought and won on the basis of concrete pieces of evidence that are of the requisite quantity and quality; and not on the basis of sentiments or sensationalization. I found that, a lot of newspaper cuttings on the issue at stakeand petitions to bodies other than courts of law were exhibited in ostensible proof of this case. I dare say, these pieces of evidence are completely useless.
The learned counsel to the claimants and the claimants would have instead concentrated their energies on sourcing the right pieces of documents 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 the lethal Achilles’ heel of the case, by becoming useful for the defendants. From them, 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, become evidence against interest.
As it is, I have no option than to terminate the life of this case permanently.This case is hereby and accordingly dismissed in its entirety as totally lacking in merits. I award no cost.
Judgment is accordingly entered.
HON. JUSTICE OLUWAKAYODE O. AROWOSEGBE
NATIONAL INDUSTRIAL COURT OF NIGERIA