IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YENAGOA JUDICIAL DIVISION
HOLDEN AT YENAGOA
BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI
DATE: WEDNESDAY 15TH JULY, 2020
Suit No: NICN/YEN/10/2020
1. Hon. Ayatu K. Laghayofa
2. Hon. Block Tekeme
3. Hon. Bulouseiha Attah
4. Hon. Education Enaikpor
5. Hon. Livinstone Egberibo
6. Hon. Durede Silki
7. Hon. Census Aretene CLAIMANTS/RESPONDENTS
8. Hon. Funkeye Timilaemi
9. Hon. Juliet Amabayama Gita
10. Hon. Hassan P. Sanugbe
11. Hon. Peter Agu
12. Hon. Morrison Ziwage
1. Government of Bayelsa State
2. The Attorney General and
Commissioner for Justice, Bayelsa State.
3. The Hon. Commissioner, DEFENDANTS/APPLICANTS
Ministry of Local Government,
Administration Bayelsa State.
4. The Ekeremor Local Government Area DEFENDANT/RESPONDENT
Mr. Ndeze Anthony Esq for the Claimants/Respondents.
Mr. Joseph Olodiama Jebba Esq (Deputy Director, Ministry of Justice, Bayelsa State) with Egbuson A.T. Esq for the 1st – 3rd Defendants/Applicants.
Mr. Bello Velia Esq for the 4th Defendant.
The Claimants commenced this suit against the Defendants by a way of complaint dated 22nd November, 2019 and filed on the 6th day of February, 2020.
The complaint is accompanied with Statement of Facts, List of Witnesses, Witness Deposition on Oath and List of Documents to be Relied Upon in the cause of Trial.
The claims of the Claimants are as contained in paragraph 18 of the Statement of Facts as follows:
a. The sum of
N360, 880, 508.4 K (Three Hundred and Sixty Million, Eight Hundred and Eighty Thousand, Five Hundred and Eight Naira, Four Kobo) only as their three years (2010 – 2013) salaries, allowances and all other entitlements they were entitled to, been the lawful Councillors of Ward 1 to Ward 12 of Ekeremor Local Government Area of Bayelsa State. Having all emerged as the winners of the general election held on the 3rd April, 2010. Certificates of return having issued to them by the State Independent Electoral Commission (SIEC) on the 3rd day of April 2012 upon the Order of Appeal Court in Appeal No: CA/PH/169/2011.
b. The sum of
N200, 000, 000. 00 (Two Hundred Million Naira) only, against the Defendants as general damages as a result of the physical, psychological, economical trauma they have occasioned the Claimants.
c. The sum of
N100, 000, 000. 00 (One Hundred Million Naira) only, as cost against the Defendants for the deliberate disobedience to Court Orders.
d. The sum of
N100, 000.00 (One Hundred Thousand Naira) only that the Supreme Court ordered the Defendants to pay to the Claimants who were the Respondents in the appeal in Supreme Court and which is yet to be paid till date.
e. AN ORDER asking the Defendants to do a public apology in a National and a State Daily Newspaper for denying them their rights and the fruits of their labour all these while.
THE 1ST, 2ND AND 3RD DEFENDANT’S PRELIMINARY OBJECTION
In response the 1st, 2nd and 3rd Defendants filed a Memorandum of Conditional Appearance on the 21st day of February, 2020. And also alongside filed a Notice of Preliminary Objection brought pursuant to Order 17 Rule 4 of the Rules of this court. The Defendants/Applicants are praying for the following:
AN ORDER, to expunge or to striking out the names of the 1st to 3rd Defendants as having no liability to pay to the Claimants salaries and allowances arising from their supposed service/occupation as Councillors (SIC) in Ekeremor Local Government.
That the grounds upon which the objection is raised are as follows:
1. That the Claimants were respectively Councillors at the Local Government with separate government functioning.
2. That the Constitution clearly demarcates the State and the Local Government with separate liabilities and none can be jester posed on the other.
3. That the duties and financial benefits of Local Government Councillors (sic) has no bearing with the State Government.
In his address, learned counsel to the 1st, 2nd and 3rd Defendants/Applicants formulated a sole issue for determination as follows:
Whether the 1st to 3rd Defendants has any liability to pay to the Claimants monies claimed for serving as Councillors to the Ekeremor Local Government as set out by the Constitution of the Federal Government of Nigeria.
It is submitted by counsel that Nigeria has a ‘three-tier’ structure or system of Government with every tier operating separately. All of the three-tiers of government/structure of government, the Federal, the State and the Local Government operate at their own levels with a little supervisory role on the other. That the Federal Government places a supervisory role on the States while the States also places the simultaneous supervisory role on the Local Government Structure.
He said Section 2 sub 1 & 2, Section 3 sub 2 of the First Schedule of the Constitution of the Federal Republic of Nigeria 1999, places the functioning of the Federal and the formation of the states. Similarly, the Constitution of the Federal Republic of Nigeria 1999 under sections 4, 5 and 6 has set out the specific functions and powers of the Federal and State Governments respectively.
That section 7 subsection 5 & 6 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and as captured in the Fourth Schedule has elaborately stated the functioning and operations of the Local Government Councils. That under section 2 (d) in the Fourth Schedule of section 7, the Constitution made it express while itemizing the functions of the Local Government that; the Local Government in addition to all of the functions so stated has:
Such other functions as may be conferred on a Local Government Council by the House of Assembly of the State.
In line with the above provisions, counsel submits that States have also enacted their various Local Government Laws for their proper functioning. Thus, the Bayelsa State has also enacted the Local Government Laws CAP 10 2006 and under the section 48 clearly gives room for the Allocation of Revenue to Local Government and to which signatories are provided under subsection 4 within the Local Government setting.
He said, the Local Government and the State Government do not run the same account as to paying liabilities of salaries and allowances to Councillors who served in Ekeremor Local Government. Both the State Government and that of the Local Government has their separate accounts accruable from the ‘Federation Account’ for the management of their tier of government chiefly for the management and daily administration of the tier including but not limited to payment of staff which also includes political office holders.
Counsel further submitted that in line with the canon principles of Separation of Powers between the three-tiers of government as stated in the Constitution of the Federal Republic of Nigeria, every tier runs its own government, various Public and Political Office Holders (Executive) Remuneration Salaries and Allowances has been duly enacted to regulate each tier, the State and that of the Local Government. Counsel place serious reliance on this laws which set out salaries and allowances of both the State Government and the Local Government.
He said, section 7 of the Bayelsa State Public and Political Office Holders (Executive) Remuneration Salaries and Allowances (Amendment) Law, 2007 without reservation itemizes every political office holders payable by the State Government and those of the Local Government is also made separate. And that salaries and allowances of political office holders of the Local Government cannot in the face of the operations of three-tier/different government setting be paid by the State. The funds of the Federal, State and Local Governments are provided for separately and each is responsible for the payment of their respective political office holders.
In conclusion it’s the submission of counsel that from the position and view point of the Constitution and various State Enactments vis a vis the Judgments of court, the Applicants state unequivocally and without reservation that the 1st to 3rd Defendants are in no form of liability to pay to the Claimants as stated in their Statement of Claim. Claimants who serve as Councillors in Ekeremor Local Government cannot claim to be paid their salaries and allowances arising from their service to the Local Government. And further submit that there is no liability on the part of the 1st – 3rd Defendants to pay to the Claimants’ monies as claimed and urge the court to expunge and strike out the names of the 1st to 3rd Defendants from the suit.
CLAIMANTS/RESPONDENTS REPLY TO THE NOTICE OF PRELIMINARY OBJECTION FILED BY 1ST – 3RD DEFENDANTS/APPLICANTS.
In response to the 1st – 3rd Defendants/Applicants’ Notice of Preliminary Objection, the Claimants/Respondents filed a twelve paragraphs affidavit on the 9th March, 2020 deposed to by one Hon. Ayatu K. Laghayofa (the 1st Claimant in this suit) and a written address. In the written address, counsel to the Respondents raised a sole issue for determination as follows:
Whether the applicants are entitled to the relief sought.
It is the submission of the counsel that this court has the inherent discretion to grant or not to grant this application. It is trite that the court always exercised its discretion judiciously and judicially when adjudicating on issue(s) before it. That the applicants through their Notice of Preliminary Objection had buttressed why they want the names of the 1st to 3rd Defendants to be expunged from this suit. But from their stipulated reasons, they were unable to adequately convince the court to grant their relief sought. He said the issues presented by the counsel to the 1st to the 3rd Defendants are issues due for trial not at this stage of the matter. And that it is only during or after trial/hearing that one can determine whether the 1st to 3rd Defendants are necessary parties or not. Since the crux of this matter is about the Claimants’ unpaid Salaries, Allowances, Entitlements, General Damages and Cost been the bonafide Councillors of Ekeremor Local Government Area from 6th April, 2010 to 5th April, 2013. And section 48 of the Local Government Laws of Bayelsa State Cap 10, 2006 clearly state the categories of persons in the Committee in charge of the management and distribution of fund in the ‘State Joint Local Government Account’. Cited section 48 (3) of the Local Government Laws of Bayelsa State Cap 10, 2006. That with respect to the above section of the Local Government Laws, it is glaring that the Members of the Allocation Committee of the State Joint Local Government Account are inclusive of the 1st to the 3rd Defendants. Ekeremor Local Government is one of the established Local Government Area of Bayelsa State. That section 50, 51 and 52 of the Local Government Laws of Bayelsa State Cap 10, 2006 which showcased the appointment of Principal Officers such as Auditors to monitor the said funds are all appointed by the 1st Defendant. Therefore, it will be wrong if the 1st to the 3rd Defendants are expunged from this suit.
In conclusion, the learned counsel pray the court to refused the application of the Applicants and proceed with the hearing of this matter as the Claimants are desirous to pursue this case to its logical conclusion in this Honourable court.
I have painstakingly perused at all the processes filed before this court, and I have read through the arguments of learned counsel for the 1st, 2nd and 3rd Defendants/Applicants on their Preliminary Objection together with the response filed by the Claimants/Respondents. And in other to effectively and effectually determine this application, I will formulate a sole issue distilled from the nature of this application that is:
Whether having regard to the position of the law, the 1st, 2nd and 3rd Defendants/Applicants are necessary or proper parties to be joined in this suit.
The grounds upon which the applicants filed this application are that, the 1st, 2nd, and 3rd Defendants/Applicants are not necessary or proper parties to be joined as Defendants in this suit reason being that there exist different functions to the three tiers of government and also, that the 4th Defendant is a body corporate with capacity to sue and be sued for its actions.
Before I go further, let me first of all start here that the applicants filed this Preliminary Objection purely based on points of law. And that was the reason why the Applicants did not file any affidavit in support of their Preliminary Objection. But to my dismay, the Claimants/Respondents filed a twelve paragraphs Counter Affidavit in opposition to the Notice of Preliminary Objection filed by the Applicants on 9th March, 2020. Its trite that a counter affidavit can only be filed where an applicant or a party in a suit has filed an affidavit in support of his case or application. See Malgit vrs Dachen (1998) 4 NWLR (pt. 550) 384 CA.
Therefore, the Applicants having not filed any affidavit in support of their application, the counter affidavit filed by the Respondents cannot stand on its own without a pillar; therefore, same is hereby discountenanced.
Having clear the coast, let me now delve into the merit of the application filed by the applicants. The reasons why the applicants filed this application are very simple. That by the ‘three tier’ structure or system of government with every tier operating independently and or separately with little supervision, and the Claimants having served or supposed to serve as Councillors in the 4th Defendant, then the 1st to 3rd Defendants has no business in this their claims.
It is of legal importance to note that for an action to be properly constituted so as to vest jurisdiction in the court to adjudicate on it, there must be a competent plaintiff (Claimant) and a competent Defendant. See Ataguba & CO. vrs Gura Nig. Ltd (2005) FWLR (pt. 265) 1219 SC; (2005) 2 SCNJ at 139.
Note that parties to an action have been classified in to four namely: (a) proper parties (b) desirable parties, (c) necessary parties and (d) nominal parties. Proper parties are those who though not interested in the plaintiff’s claims but are made parties for some reasons, and desirable parties are those who have an interest or who may be affected by the result. See Dapialong vrs Lalong (2007) 5 NWLR (pt. 1026) 199 C.A.
Furthermore, a necessary party to a suit is a party who is not only interested in the subject matter of the proceedings but also a party in whose absence the proceedings could not be fairly dealt with. Consequently without his being a party to the suit, the court may not be able to effectually and completely adjudicate upon and settle all questions involved in the suit. See Ojo vrs Ogbe (2007) 9 NWLR (pt. 1040) 542 C.A; Mobil Oil Plc vrs D.E.N.R Ltd (2004) 1 NWLR (pt. 853) 142 C.A.
Thus, a necessary or proper party to a case is a person whose presence is necessary for the effectual and complete adjudication of the questions involved in the cause or matter. See Mobil Oil Plc vrs D.E.N.R. Ltd. (Supra).And E.F.P. Co. Ltd vrs N.D.I.C. (2007) 9 NWLR (pt. 1039) at 216 S.C.
Having said all these, I have carefully analyzed the claims of the Claimants (comprising the Complaint and Statement of Facts), and by looking at paragraphs 13, 16, 18 of the Statement of Facts of the Claimants/Respondents the Claimants averred that the 1st Defendant truncated their mandate so as to be sworn in as elected Councillors in the 4th Defendant. Therefore, its my ardent believe that the Defendants/Applicants are both necessary and desirable parties in this suit. And I so hold.
On the issue of the 2ndDefendant/Applicant (Attorney General of Bayelsa State), the function of the Attorney General is to sue and be sued for the acts of the government. As a matter of law, the Attorney General has the locus standi to commence and defend actions for and on behalf of the government. And he can also be sued with respect to some policies initiated or profounded by the government. See the dictum of ADEREMI JCA (as he then was) in A.G Federation vrs Ajayi (2000) 12 NWLR (pt. 682) pg 483 at 531 para C. And the 3rd Defendant is in charge of Local Government administration in Bayelsa State. And by the provision of section 48 of the Local Government Law of Bayelsa State 2006 it presupposes that there exists a State Joint Local Government Account.
But even at that, the whole essence of the principle of necessary party is to forestall the institution of parallel litigation by a person who ought to but was not joined as a party in the suit. It is not squarely because he has an interest in the questions or issues involved in the case or would proffer answers to relevant questions thereto or whether it is necessary to hear him for that purpose, there must therefore be question in the action which cannot be effectively and completely settled unless he is a party. See Peenok Inv. Ltd vrs Hotel Presidential Ltd (1982) 12 SC PG 1.
That said, there is no iota of doubt that this matter cannot be effectively and effectually settled or decided by this court without the applicants as there are so many issues which cannot be settled without the involvement of the applicants.
Also, section 91 (1) of the Labour Act, employer is defined to mean any person who has entered into a contract of employment to employ any other person as a worker either for himself or for the service of any other person, and includes the agent, manager or factor of that first mentioned person and the personal representatives of a deceased employer. See Shena Security Co. Ltd vrs Afropak Ltd (2008) 18 NWLR (pt. 1118) pg 77.Therefore, even if the contractual agreement is between the Claimants and the 4th Defendant as contemplated by counsel to the applicants, still by the provisions of Section of 91 (1) of the Labour Act the applicants can still be sued as parties in this suit. This is because in FGN vrs Shobu Ltd (2014) 4 NWLR (PT.1396) at 63 para C – F it was held as follows:
“It is trite and a common principle of law that a misjoinder or non-joinder of a party cannot defeat a cause or matter. A misjoinder or non-joinder (whatever the case may be) of a party will not be fatal to the proceedings. The court could deal with the matter in controversy regarding the rights and interests of the parties with the proper parties before it.”
See also Ngige vrs Akunyili (2012) 15 NWLR (Pt. 1323) 343; Believers Fisheries Dredging (Nig.) Ltd vrs UTB Trustees Ltd (2010) 6 NWLR (Pt. 1189) pg 185 at 202 paras D – H.
Also by paragraph 18 (a – e) of the Statement of Facts it is clear that the claims of the Claimants is jointly and severally against the Defendants.
In view of the foregoing facts I enumerated ab-initio, I resolved the only issue for determination in favour of the Claimants/Respondents and hold that the 1st, 2nd, and 3rd Applicants are necessary and proper parties to be joined in this suit. The preliminary objection is hereby dismissed. I so hold.
I declined to award any cost.
Ruling is hereby entered accordingly.
HON. JUSTICE BASHAR A. ALKALI
NATIONAL INDUSTRIAL COURT OF NIGERIA