IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDING AT ABUJA
BEFORE HIS LORDSHIP: HON JUSTICE O. O. OYEWUMI
Dated: 4TH NOVEMBER, 2020…………………Suit No: NICN/ABJ/244/2019
ELDER ACHUBA SIMON CLAIMANT
1. THE GOVERNOR OF KOGI STATE
2. THE ATTORNEY GENERAL OF KOGI STATE - DEFENDANTS
AND COMMISSIONER FOR JUSTICE
Femi Falana with Samuel Ogala, for the Claimant
B. Kadiri, Director, Cooperate Affairs, Ministry of Justice, Kogi State with O.Y. Efugi, legal officer, Friday Ameh, legal officer, Barakat Yahaya for the defendants.
1. By a General form of complaint dated 19th August, 2019 the Claimant claims against the defendants as follows
a. A Declaration that the Claimant is entitled to all the rights and privileges of the office of the Deputy Governor of Kogi State of Nigeria including the prompt payment of all his travel allowances, monthly impress, security votes and statutory allocations.
b. A Declaration that the decision of the defendants to withhold the sum of N921, 572,758.00 (Nine Hundred and Twenty One Million, Five Hundred and Seventy Two thousand, Seven Hundred and Fifty Naira) being the travel allowances, monthly impress, security votes and other statutory allocations payable to the Claimant as the Deputy Governor of Kogi State is discriminatory and amounts to unfair labour practice.
c. An ORDER of this Honourable Court directing the Defendants to pay to the Claimant the sum of N921,572,758.00 (Nine Hundred and Twenty One Million, Five Hundred and Seventy Two thousand, Seven Hundred and Fifty Naira) being the travel allowances, monthly impress, security votes and other statutory allocations due to his office as the Deputy Governor of Kogi State.
d. An ORDER of this Honourable Court directing the Defendants to pay to the Claimant his monthly salary, travel allowance, monthly impress, security votes and statutory allocations, due to him from August 2019 until the end of his tenure of office on the 29th of January 2020.
e. An ORDER of this Honourable Court directing the Defendants to pay to the Claimant 10% post judgment interest on the judgment sum per annum until the judgment sum is fully liquidated.
2. It is the Claimant’s case that he was the Deputy Governor of Kogi State having taken his Oath of office dated 9th February 2016. He averred that his office is a creation of the Constitution of Nigeria and he performs the functions assigned to him by the 1st Defendant. That upon passing the State Appropriation Bill by the State House of Assembly and signed into law by the 1st Defendant, his office is entitled every year to the allocation of funds for the smooth running of his office. It is his pleadings that he is also entitled to salary, travel allowances, monthly imprest, security votes and other statutory allocations due to him. It is his statement that the 1st defendant has never complied with the standard practice of releasing funds to the office of the Deputy Governor since he assumed office in February 2016, that all he does was to assign function to him without releasing funds for execution and after the execution of the said assignment. That he has personally funded such functions and when he forwards a memo with the details of the financial cost to the 1st Defendant for approval, he refuses to approve the funds. He continued that his security vote in the sum of N10,000,000.00 (Ten Million Naira) per month has remained unpaid from April 2018 to August 2019 totaling N180,000,000.00 (One Hundred and Eighty Million Naira) that despite repeated requests the 1st Defendant has refused to pay, that the monthly impress to the Claimant’s office is totaling N18,224,000.00 (Eighteen Million, two Hundred Naira) was last paid in March 2018 and N328,032,000.00 (Three Hundred and Twenty Eight Million, Thirty Two Thousand Naira) from April 2018 – August 2019 is still outstanding and also the approval memos by the 1st Defendant in the sum of N37,836,700.00 (Thirty Seven Million, Eight Hundred and Thirty Six Thousand, Seven Hundred and Naira) and N46,038,000.00 (Forty Six Million and Thirty Eight Thousand Naira) amounting to the total of N83, 874,700.00 (Eighty Three Million, Eight Hundred and Seventy Four Thousand Seven Hundred Naira) which the Defendants failed to pay till date. According to him, he has made several efforts to draw the attention of the Defendants to it but to no avail. That he has written to the President of Federal Republic of Nigeria, the Chairman of All Progressive Congress and other stakeholders but to no avail. He contended that the Defendants’ claim that there was no money to fund his office was false as the State Government received over N131,882,733,955.66 (One Hundred and Thirty One Billion, Eight Hundred and Eighty two Million, Seven Hundred and Thirty Three Thousand, Nine Hundred and Fifty Five Naira Sixty Six Kobo) from Federal Government from 2017 – 2019 apart from the internally generated revenue, that upon the receipt of his letter the Defendants coerced the Kogi State House of Assembly to commence impeachment proceedings against him.
3. The Defendants on the other hand pleaded that the expenditure are subject to performance of duties duly assigned to him by the 1st defendant and the budgets are mere estimates as all heads of expenses must be approved by the 1st Defendant. They averred that the passage of an approved budget does not translate to a right unless and until such provisions and expenses are approved by the 1st defendant subject to availability of funds, public interest and priorities. That the Claimant is only entitled to his monthly salaries and travel expenses which the approval of the 1st Defendant has been obtained. That there are no statutory allocations for the Deputy Governor and imprest are not provided in the approved budget for him as the said imprest is discretionary grant and not paid in arrears. That the Claimant as a Deputy Governor acts in line with his duties and functions delegated to him by the 1st Defendant, therefore cannot determine for himself what to do or not and to embark on unapproved duties, functions and expenditures. They pleaded that ministries, agencies and parastatals are yet to receive imprest as such it is not peculiar to him. That his security votes are not contained in the state approved budget for 2017, 2018 and 2019 and they are tied to security within the fundamental objectives and directives state principle which is unjusticiable. They went on to state that the 1st defendant at no time assigned or approved any of claimed function to the claimant as all government communications, business, appointment, assignment and approvals are expressly made in writing. That all approved memos from Claimant’s office has been paid. That the Defendants have nothing to do with the impeachment proceeding against the Claimant.
4. In the cause of trial, the Claimant testified for himself as CW, he adopted his written statement on Oath dated 19/8/2019 and equally tendered documents which were admitted and marked as Exhibits SA – SA8. He was equally cross-examined by the Defendants. The Defendants called a sole witness one Elijah Evinemi who testified for them. He adopted his sworn deposition of 21/10/2019 as his testimony in this case and tendered documents which were admitted and marked as Exhibit Elijah and he was equally cross-examined by the Claimant.
5. At the close of vivo voce evidence, as it is lawful to do in observance with the rules of this Court, the Defendants filed their final written address dated 13/07/2020 as well as a rely on points of law on the 24th July, 2020, wherein learned counsel on their behalf framed the following issues for the Court’s determination thus:
1. Whether the Claimant has locus standi to initiate this suit in view of the fact the claims and reliefs sought are not personal to him but to the office of the Deputy Governor of Kogi State, beneficiaries to pledges, his wife and aids.
2. Whether the Claimant has adduced sufficient evidence to support his claims to entitle him to the reliefs sought.
6. Learned defence counsel submitted on issue one that the onus to prove is on the Claimant to show to the satisfaction of the Court that he is entitled to the said reliefs by adducing cogent, credible, reliable, consistent, uncontradicted and uncontroverted evidence which the Claimant has failed to discharge this duty. He submitted further that the Claimant casually estimated the budget for 2016, 2017, 2018 and 2019 laying claims to entitlement such as travel allowances, security votes and monthly imprest without tracing the origin of his claims to the budgetary provisions. He stated that imprest and other allowances such as security votes are paid base on the Governor’s approval and availability of funds. He also submitted that from the evidence before the Court, imprest and security votes are privileges enjoyed by the office of the Deputy Governor and not individuals or occupants of the office. He cited the case of Skye Bank & Anor v. Akinpelu  LPELR – 3073 (SC) PP39 – 40 Paras E – B.
7. Learned counsel contended that the Claimant under cross-examination stated that he spends security votes in the absence of the Governor in the State but failed to state specifically the amount spent on security when the Governor was absent. Counsel also argued that the claimant testified that security vote are paid into the account of the accounting officer in the Deputy Governor’s office and not personal to him. He cited the case of Vandighi v Hale  49 WRN 138 at 147. Counsel equally submitted that the Claimant is not suing in a representative capacity as regards to the pledges and the Claimant’s wife’s and aids expenses neither has he shown that he was authorized to act on behalf of his wife, aides and beneficiaries of the pledges, he therefore urged the Court to discountenance the reliefs sought. He cited the case of Akomolafe v Ilesanmi  LPELR 25664 CA 29-31 para A-F. He continued that the claimant lacks the standing and capacity to sue as there was no purported injuries or feared injuries accruing to him, thus do not affect him personally. He also stated that the office of the Deputy Governor which is distinct from the claimant has the inalienable right to enforce rights, reliefs and remedies accruable to it thus his wife and aids are legal persons as well as beneficiaries of the pledges are also distinct legal personalities with capacity to sue and be sued if they feel their rights have been trampled upon. Therefore, the Claimant is not the proper party to commence this suit because the claims are not personal to him thus lacks the locus stand to institute the suit to claim reliefs enforceable by another person. He cited the cases of A.G. Cross Rivers State v F. R. N  10 NWLR (Pt 1681) 401 at 439 – 440 paras G – C (SC); Bejehson v Otiko  14 NWLR (Pt 1638) 138 at 155 paras B-H SC. Counsel stated that the absence of locus standi in this case divest this Court the power of adjudication. He also posited that security votes are funds meant to be expended in ensuring peace, security and tranquility of the State as it is trite that issue of security is not justiciable thus the Claimant cannot enforce claims relating to security votes See section 6(6)(C) of the 1999 Constitution as amended. He cited the case of A.G Ondo State v. AG of Fed & ORS  LPELR – 623 (SC) 46 paras. He urged the Court to so hold.
8. With regards to issue two, learned counsel argued that mere assertion does not amount to evidence, the onus of proof is on the claimant to adduce sufficient and credible evidence in relation to salaries and allowances of political office holders he submitted that where a party pleads facts in his complaint without adducing evidence in support of same, such pleaded facts are deemed abandoned. He relied on the case of Alalade & Ors v Ododo & Ors  LPELR – 46888 (CA) 43 paras C – D. counsel submitted that all the documents tendered by the claimant and admitted by the Court are Public document by Section 102 to 103 of the Evidence Act, 2011. He posited that by the provisions of the Evidence Act only certified true copies of public documents are admissible. He submitted that all exhibits tendered by the claimant are inadmissible since they have not been certified and equally the documents does not link to the claimant’s claims. He urged the Court to expunge all evidence anchored on same. He cited in support the cases of Rilwan &Partners v Skye Bank Plc  1 NWLR (pt 1441)437 @ 461 paras F-G; Clean Credential Ltd v Industrial Training Fund Governing Council  17 NWLR (Pt 1701) 318 @ 349 paras C-F.
9. Kadiri of counsel argued that the documents tendered by the claimant only shows the fact that request were made for approval of funds without showing any invoice, receipt or acknowledgment evidencing expenditure, purchase or any form of monetary payment as claimed. He continued that the hotel receipts tendered by the claimant has no link with the Claimant’s claim as the said receipts do not bear the Claimant’s name or any guest of his, he also stated that all receipts from May Treasure Hotel before the Court have no customer signature. Counsel therefore urged the Court to reject the said evidence. Counsel also contended that the 1st Defendant never assigned any of the duties or functions claimed as itemized in his claims and the Claimant did not dispute the above assertions during cross examination. That he lacks the capacity to request for imprest since he is not the Permanent Secretary or accounting officer and imprest are not paid in arrears too. Counsel submitted that the assertion of the defendants were not controverted by the claimant hence they are potent admissions and needs no further prove. In all counsel submitted that the claimant failed to prove his case before the Court as the claimant is calling on the Court to adjudicate on matters that are to the discretion of the defendants which are not justiciable and have not been proven by credible evidence. He urged the Court to so hold.
10. The Claimant on the 16th June, 2020 filed his written address and Counsel on his behalf distilled two issues for the determination of the Court thus:
1. Whether the Claimant has led evidence to establish his claims for travel allowance, monthly impress, security votes and other statutory allowances due to him as his rights and privileges as the Deputy Governor of Kogi State having incurred such expenses in executing assigned duties and functions on behalf of the 1st Defendant during the tenure of his office.
2. Whether the Claimant has locus standi to initiate this suit in view of the fact the claims and reliefs sought are not personal to him but to the office of the Deputy Governor of Kogi State, beneficiaries of pledges, his wife and aides.
11. Regarding issue one, Samuel Ogala of counsel to the Claimant submitted that by Section 5(2)(a) of the 1999 Constitution as amended the powers of the State shall be vested in the Governor and exercised by him or through his Deputy. Also Section 193 of the 1999 Constitution supra provides for the exercise of the functions of the Deputy Governor which shall be assigned to him by the Governor, and based on the said Constitutional provision that budgetary provisions are made for the Claimant’s office annually by the State Government which the Claimant is entitled to the release of funds approved by the Defendants to enable him discharge the functions assigned to him by the 1st Defendant, Counsel stated that claimant listed the items covered by the yearly budgetary provisions to his office which shows that the Claimant’s claim are all budgeted for and contained in the 2017 – 2019 Kogi State yearly Budget, he stated that it is the usual practice between him and the 1st Defendant as corroborated by exhibit Elijah to assign functions to him to perform without releasing funds to him for execution of the assignment and afterwards forwards a memo detailing the financial cost of the assignment to the 1st Defendant for approval, he stated further that he was assigned various functions by the 1st Defendant from 2017 – 2019 which he performed without any financial backing from the 1st Defendant.
12. It is the further submission of learned counsel that the Claimant’s claim of the sum of N10,000,00000 (Ten Million Naira) monthly as security votes due to him that is yet to be paid by the Defendant since April 2018 – August 2019 totaling N180,000,000.00 (One Hundred and Eighty Million Naira) as approved by the 1st Defendant, also an outstanding monthly imprest due to the Claimant from April 2018 to August 2019 amounting to the sum of N328,032,000.00 (Three Hundred and twenty Eight Million, Thirty two Thousand Naira) and also of N37,836,700.00 (Thirty Seven Million, Eight Hundred and Thirty Six Thousand, Seven Hundred Naira) and N46, 038,000.0 (Forty Six Million, and Thirty Eight Thousand Naira) as approved memos which the Defendants failed to honour till date. Learned counsel went further to argue that the Defendants admission of paragraphs 1,2,3,4, and 5 of the Claimant’s statement of facts shows that there is a yearly budget of the state made to cover the Claimant’s expenses in exercise of his functions as may be delegated to him by the 1st Defendant.
13. He further submitted that the Claimant’s claim for travel allowance, monthly imprest, security votes and other statutory allowances due to him as his rights and privileges having incurred such expenses in executing his duties and functions on behalf of the 1st Defendant needs no further proof by virtue of Sections 5 (2)(a) and 193 of the 1999 Constitution (as amended) supra. Counsel continued that the practice between the claimant and the 1st defendant as admitted by the DW under cross-examination is for the claimant to incur expenses, submit memos to the 1st defendant who directs that payment be made. He stated that the Claimant represented the 1st Defendant between 2nd and 4th May, 2017, the memo seeking approval was made by the Claimant on 15/5/2017 after the function while the approval came on 12/6/2017. Counsel stated that claimant has demonstrated how he arrived at each claim to be so entitled. He cited the case of Ajigbotosho v RCC  LPELR 44774 SC. Learned Counsel argued that the Defendants failed to prove that the 1st Defendant did not assign functions of facts as the sole witness admitted under cross examination that he is neither a staff in the Governor’s office nor in the Deputy Governor’s office hence not privy to the day to day communication between the 1st Defendant and the Claimant as it is trite law that a witness in any matter before a Court must be a competent witness who has knowledge of the subject matter. He relied on the case of STB Ltd v Interdrill Nigeria Ltd & Anor  LPELR – 9848 (CA).
14. Learned counsel continued that the defendant made a heavy weather of the entitlement of the Claimant’s impress and security vote that it is at the discretion of the 1st Defendant and availability of funds, he relied on Exhibit SA7 which contains the approved imprest and security votes. Counsel relied on a document titled appeal for the increase of monthly responsibility allowance (security vote) dated 12th January 2017 where the sum of N10,000,000 was approved by the 1st defendant monthly as security vote for the claimant to take effect from 1/1/17. The 1st defendant in another document “re-forwarding of request for cash flow for the Deputy Governor’s office January to December, 2017” endorsed the sum of N2,900,000.00 on monthly basis. Also documents titled schedule of monthly cash which shows the cash flow for security agencies, office of the Claimant, also has an endorsement on it by the 1st Defendant approving the sum of N1,350,000.00 (One Million, three Hundred and Fifty Thousand Naira) on monthly basis, and another memo titled “Schedule of monthly cash flow for the Deputy Governor” in the sum of N2,050,000.00 (Two Million, and Fifty Thousand Naira) on monthly basis approved by the 1st Defendant. Counsel submitted that the approval of 1st Defendant is a standing order and has no endorsement on it making it conditional or based on availability of funds as being speculated by the Defendants, this contradicts the defendant’s claim that the payment for security vote and imprest to the claimant is based on availability of funds. He cited the case of Olawoye v Bello  LPELR – 24475 (CA). He stated the defendants have failed to prove that the Permanent Secretary is the only person who can lay claim for unpaid sums on behalf of the claimant and on the defence of the defendants that there are no funds to pay counsel posited that by Exhibit SA5 dated 26th July, 2019 they admitted the claim of claimants.
15. Learned counsel argued further that the documents tendered by the claimant are admissible in line with the rules of the Court as they were pleaded and are relevant and should be admitted by virtue of Section 12(2)(b) of the NICN Act, 2006. He also submitted that it is not the practice that memos requesting for payment to be accompanied by invoice, receipts or acknowledgement evidencing expenditure and by Exhibit Elijah it is evidently clear that the said memos had no invoice, receipts or acknowledgment evidencing expenditure from the claimant attached to it and it is equally clear from the exhibit that it is the usual practice of the defendant of using the said hotel as a guest lodge for the claimant. Counsel urged the Court to adopt Order 5 Rules 6 of NICN rules and hold in favour of the claimant that the totality of evidence led by the claimant supports his claim. He urged the Court to so hold.
16. Arguing on issue two, Counsel submitted that the issue of locus standi being canvassed by the Defendants did not arise from the Claimant’s case as it was never canvassed by any of the parties at the trial and that makes it abstract and alien to the present case see Nsirim v Amada  5 NWLR (pt 1504) 42 @ 60 para H. He stated that the Constitutional provision empowering the Claimant to exercise his power as a Deputy Governor also entitles him to claim all monies due to his office which has accrued to him in the course of performing his duties as a Deputy Governor including monies due to his wife and his Aides as all the said funds were paid into the Deputy Governor’s project account which is said to be managed by the Claimant for the smooth running of his office.
17. In conclusion, Counsel submitted that the Claimant has established that he is entitled to his claims for travel allowances, monthly imprest, security votes and other statutory allowance due to him as his rights and privileges as the Deputy Governor having incurred such expenses in executing assigned duties and functions on behalf of the 1st Defendant, therefore urged the Court to enter judgment in favour of the Claimant and grant the Claimant all his reliefs as claimed.
18. In response to the Claimant’s written address, counsel on behalf of the Defendant filed their reply on points of law dated 24/07/2020 where he stated that the claimant has argued that the usual practice is to assign duties to him and releases fund only after he executes the duties. He submitted that the claimant is to prove the assignment of duties as he claimed and he must prove same by tendering documents before the Court how such assignment were made. He posited that the Claimant failed to do so and there was nothing showing such assignment of duties were made. Counsel submitted that it is trite that the only form of communication in carrying out Government duties and functions is writing see pages 106 – 109 of the Revised Civil Service handbook. Counsel stated that it is clear that the 1st Defendant did not assign any function to the Claimant hence any step or action taken in the absence such communication goes to naught and amounts to a nullity in law. He cited the case PHCN v Offoelo  LPELR – 19717 (SC) at 25.
19. Learned counsel also contended with the claimant’s written address describing the evidence of the defendant’s sole witness as hearsay without capturing which aspect of the evidence is hearsay. Section 37 of the Evidence Act 2011. Counsel posited that any documents not authored or written by the Claimant but tendered by him constitute documentary hearsay and offends Section 37 of the Evidence Act (supra). He further submitted that the person through whom a document is tendered is the marker of such document. He cited the case of Lambert v Nigerian Navy  NWLR (pt.980) 514 at 525 at 547 paras A-E.
20. Counsel also maintained that the monetary claims contained in the documents do not correspond with the relief sought as the memos presented in relief C sought in the claim contains entitlements of persons other than the Claimant himself and he lacks the locus standi to so do. Counsel also argued that the documents admitted in evidence were dumped before the Court as they contain claims for allowance of persons other than Claimant himself. He cited the case of Ikenta Best (Nig) Ltd V AG Rivers States (2008) LPELR – 1476 (SC)
21. Counsel stated that imprest is a monthly revolving fund advanced to the accounting officer for the running of Government offices, it can only be replenish after retirement of the previous month’s imprest, the condition for reimbursement is upon submission of a properly and receipted payment vouchers which the Claimant has failed to retire. He relied on chapter 10 Rules 1010 and 1011 of the financial Regulations (Revised to January 2019)
22. Learned Counsel submitted that the Claimant’s argument on issue 2 that the issue of locus standi was not canvassed at the trial thus it should be struck out, he stated that the issue of locus standi can be raised at any stage. Counsel cited the case of Wibros (NIG) Ltd v A.G AkwaIbom State  5 NWLR (pt 1081) @ 484 @ 496 para. A. He continued that it is trite that locus standi is an issue of law and affects the foundation or jurisdiction of this Honourable Court to hear and determine this matter. He cited the case of National Commission Museums & Monuments v Ifeanyi 7 NWLR (pt. 1724) at 543 paras G-H.
23. In conclusion Counsel urged the Court to resolve all the issues in favour of the Defendants and jettison the written address of the Claimant and dismiss this suit for lack of merit.
24. I have given a careful and an indepth consideration of the pleadings, testimony of witnesses on record as well as documents before the Court. I have equally read the arguments canvassed by both learned counsel in support of their case, it is obvious that the only vexed issue that is to be determined to effectively answer the contentions of the parties is whether or not the Claimant has proven his case to be entitled to his claims.
25. Before I consider the sole issue distilled, I will like to discuss two germane issues raised by Kadiri Esq, counsel for the defendants in the course of trial. Learned counsel in his final submission at paragraph 4.6 -4.11, contended that the claimants claims monetary entitlement for his wife and aides without joining them as party to the suit thus he does not have the locus standi to sue on their behalf respecting their claims. The claimant in response stated that the issue of locus standi as raised by the defendants did not arise from their pleadings and was never canvassed at trial therefore it is lacking in merit. Counsel also stated that by virtue of the creation of his office by Section 5(2) (a) of the 1999 Constitution, as amended it is the claimant in person that is entitled to claim before the Court monies due to his wife and aides as they are all incidental to the smooth running of his office.
26. It is settled law that the issue of locus standi is a question of jurisdiction and it can be raised at any time even for the first time at the Apex Court. Locus standi is defined as the legal capacity to sue, the right standing of a person to sue over a wrong allegedly done to him. It is the totality of the right conferred on a person who approaches a Court to seek remedy to have the right standing to seek particular remedy. It is for this reason that in law a person without the requisite locus standi, no matter the colossal nature of the injury or damages allegedly done or suffered, cannot sue or have the right standing in a Court of law to seek redress over such an alleged injury or damage done. Ekpe JCA in Edun v. Gov. of Delta State & Ors  LPELR-47464CA, held thus "I agree with the well-considered judgment of my Learned Brother that not only does the issue of locus standi affect a Court's jurisdiction to hear a matter, it is also a condition precedent in giving consideration to a person's legal capacity to institute an action for the determination of his legal right. To this extent, the relief sought must be personal in order for a person to have locus to institute an action. Also, the pleadings (and in this case, the originating summons) of the Appellant would be resorted to in order to consider whether or not sufficient interest has been disclosed to permit him the legal standing to sue” Applying the above reasoning to this present, implies that for the claimant to have the right to claim in respect of monies expended by his aids and wife, he must show that he has sufficient interest in those claims. In deciding whether a Claimant has the requisite locus standi is a function of whether the claim he makes has disclosed his sufficient interest in the subject matter and to determine this it is the averments of the Claimant in his pleadings that the Court has to look at and critically examine to see if it discloses his interest sufficient enough to clothe him with the requisite locus standi to sue. What then is a cause of action in law? Simply put a cause of action refers to those facts which show or give life to a right of action. It is the factual situation which gives a person a right of action. It is only where the claim of the Claimant does not disclose his sufficient interest in the subject matter that it must be terminated in limine by the Court. See the cases of Stanbic IBTC Bank v. Longterm  LPELR 44053 CA; Global Capital Ltd & Ors; AG. Federation v. AG Abia State & Ors  FWLR (Pt. 64) 202 @ p. 264; Owodunni v. Regd. Trustees, Celestial Church of Christ  FWLR (Pt. 9) 1488; Taiwo v. Adeboro  All FWLR (Pt. 584) 53. From a careful perusal of the claims and pleadings of the claimant, it is sufficiently clear that the monies he is claiming, id est claims listed at paragraph 12 of the statement of facts are claims for the official trip of the claimant and his wife to Abuja on different occasions and other official engagements with his wife and aids. It is obvious on record that the defendants’ grouse is not that the Deputy Governor’s wife and aide is not entitled to these monetary claims but they are simply saying that they ought to claim these personally and not by the claimant. It is sufficiently clear that these claims flow from the office of the claimant as a creation of Sections 5(2)(a) and 186 of the 1999 Constitution as amended and does not enure personally to him hence all claims with respect to these should be through the claimant and not personally by his wife or his aides. The Governor’s wife though has no Constitutional function same as his aids’ but they exists in view of the existence of the office of the claimant and also to assist in the effective function and discharge of his duties. It is known as same has become the practice and judicially taken notice of that the office of the wife of the Governor/ditto the President is not Constitutionally provided for as well as the office of the wife of the deputy Governor, but as is the practice which has gained notoriety they have pet projects and maintain offices, obviously they do not expend their personal funds for such projects, but are officially funded. Section 193 (1) of the Constitution as amended provides that –“The Governor of a State may, in his discretion, assign to the Deputy Governor or any Commissioner of the Government of the State responsibility for any business of the Government of that State, including the administration of any department of Government.” It is apparent from this provision that the claimant cannot function as a lone person or in isolation when the 1st defendant assigns responsibility to him without the support of his wife and aids. Making reference to the office of the First lady or potential first gentleman, Wikipedia says “The Constitution of Nigeria does not create an office for the country’s first lady or potential first gentleman. However, official funding and staff have been allocated to the first lady of Nigeria since the Country’s independence” accessed at en.m.wikipedia.org. The same goes for the Office of the wife of the Governor of a State. Therefore, the claimant in this instant case is the proper party to sue with respect to the claims therein, he accordingly has the locus to sue and make claims for expenses incurred relating to his wife and aids in view of the circumstances of this case. The onus of proving those claims under those heads solely rests on him. It is in this light that I disregard the argument and objection of the defendants and thus dismiss same for lacking in merit. I so find and hold.
27. On the 2nd contention of the defence, learned defence counsel during trial objected to the admissibility of all documents exhibits SA-SA8 as offending Sections 102 of the Evidence Act, 2011. A careful examination of exhibits SA-SA8 discloses that exhibits SA, SA1, SA2, SA4, SA5 and SA 7 are photocopies of monetary memos written by the claimant to 1st defendant for his approval. Section 102 of the Evidence Act, 2011 provides that;
“the following documents are public documents;
a. Documents forming the official acts or records of the official acts of;
i. The sovereign authority;
ii. Official bodies and tribunals; or
iii. Public officers, legislative, judicial and executive, whether of Nigeria or Elsewhere; and
b. Public records kept in Nigeria of private documents”
28. Now are the documents public documents? It is noteworthy that for a document to acquire the status of a public document it must have been made by a public officer or kept by a public officer. Therefore, a document is public based on custody or origin. A cursory examination of exhibits SA, SA1, SA2, SA4, SA5 and SA7 shows that they are official acts or records of the official acts of Public officers and by Section 104 (1)(2) of the Evidence Act supra provided that;
“1. Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is true copy of such document or part of it as the case may be;
2 The certificate mentioned in subsection (I) of this Section shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be certified copies.
Section 105 provides that Copies of documents certified in accordance with Section 104 may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.”
29. The above Section goes to show that a public document is admissible in its original form however, where a document is a photocopy or duplicate it is equally admissible but must be duly certified by the officer in custody of such document. In this instant case, these exhibits as seen are duplicate of a public document which by Section 104 of the Evidence Act supra must be certified, and by a run through the documents, it is obvious that these documents are bereft of certification which is the requirement of Section 104 of the Evidence Act. What is the effect of non-certification of a public document? It is trite that the non-certification of a duplicate of a public document is not admissible and thus must be expunged from the Court. It is trite that where the Court wrongly admits a document in the course of trial, it is the duty of the judge at the stage of writing a judgment to expunge such a document from its record. The Court has the power to expunge the inadmissible evidence. See the cases of Nigeria Bank for Commerce and Industry v. Ogbemi & Anor, Suit No: CA/J/93/2006, a judgment delivered on 25th May, 2012. Hashidu & anor v Goje & Ors  LPELR 10310 CA; Metalimplex v A.G Leventis & Co Ltd  2 SC 91. In the case of Agbaje v Adigun  1 NWLR (Pt. 269) 261, the Apex Court held that when evidence has been wrongly admitted, the law is that the evidence must be expunged from the record when the judgment is being considered. The Supreme Court went further to say that the basis for the rule is that the evidence does not go to any issue and that being so it cannot be legal evidence upon which the Court can make a finding of fact. See also the case of Inyang v Eshiet  5 NWLR (Pt. 149) 178.
30. It is pertinent to say that asides the photocopies of official documents in exhibit SA5, exhibit SA5 also contains letters dated 19th and 26th of July, 2019), they are correspondence between the claimant’s counsel and the 1st defendant. Now another question that arises from the letter dated 26th of July, 2019 is that is it a public document having emanated from a public office or can we say that these documents form part of official record to attract certification? SA5 (dated 19th and 26th of July, 2019) are letters written from the claimant counsel to the 1st defendant in his official capacity and the response of the 1st defendant to the claimant’s counsel. In the case of Ezenwa Onwuzurike v Damian Edoziem and Ors  NGSC 76;  LPELR 26056 SC, the Apex Court on the question whether exhibit C, a petition written to the Police by a private citizen had transformed to a public document had this to say;
“Exhibit C letter dated 24th June 1997… was addressed to the Commissioner of Police, Owerri Imo State. The …….. paragraph of the said Exhibit contains a plea to the police to save their souls from Ezenwa(the plaintiff/respondent) and his groups. The addresses- the Commissioner of police is a public officer charged under the Constitution of the land, for the maintenance of law and order Exhibit C in my humble view has become part of his official records of the police, in writing exhibit C and forwarding it to no other person than the Commissioner of Police, the writers, again in my view, intended that it (Exhibit C) be given official treatment, this acquiring official coloration. The Nigerian Police is a public institution carrying official tag. So, documents though private in nature, when sent to the Nigerian Police requesting it to discharge its Constitutional duties, upon their receipt by the Nigeria Police became public record kept by them of private document from the foregoing Exhibit C comes within the category of documents defined in Section 109 (b) of the Evidence Act (now Section 102(b) Evidence Act 2011). To hold otherwise is to accord section 109 (b) strained interpretation.” See also Aromolaran v Agoro  18 NWLR (Pt 1438) 153.
31. By Section 5 of the 1999 Constitution the office of the Governor was created and hence a public office. By a careful perusal of the letter dated 17th of July, 2019 it was written to the 1st defendant in his official capacity demanding the release of statutory allocation due to the claimant and the letter dated 26th of July, 2019 is clearly a document having emanated from a public office and hence they ought to be certified in accordance with Sections 104 and 105 of the Evidence Act supra. Failure to certify them as I have held renders the documents inadmissible and ought to be expunged. Now, the claimant in his final written address cited the provisions of Section 12(2) of NICA 2006 as having overtaken the defendants’ objection. Both parties captured the provision, I will therefore skip that but will like to capture the provision of subsection (2)(b) of Section 12, which says that this Court shall be bound by the provision of Evidence Act, but may depart from it in the interest of justice. What is the justice of this case if I may ask? The claimant at the point of tendering these documents failed to tell the Court why he did not certify the documents, he equally failed to give notice to produce the original copies to the defendants. Justice I must say is not only for the claimant but for the defendants as well. The subsection as rightly argued by the learned defence counsel allows the Court to exercise its discretion. Discretionary powers are exercised judicially and judiciously and not in vacuo. The materials for which a Court of law may exercise its discretion has to be placed before it by the party seeking the Court’s discretion. The scenario that played out in this case is one where the claimant flips Section 12(2) like a magic wand to the Court without more. As I said the claimant had two options, either to certify the documents or to put the defendants on notice to produce the original copies if they are in their custody. But chose to keep mute and feels that he can shield himself under Section 12(2)(b) of NICA is the most undesirable. I see no reason why I should close my eyes to the express provision of Section 102 of the Evidence and exercise my discretion in this circumstance. It is in the light of this that I uphold the objection of the defendants and hold that exhibits SA, SA1, SA2, SA4, SA5 and SA7 were wrongly admitted in evidence and thus expunged from the record of the Court for lacking in weight.
32. With respect to exhibits SA3, SA6 and SA8, they are books containing the budgets of the Deputy Governors from 2017-2019, exhibit SA6 is a revenue of allocation from the federation to the states, it is computer generated documents and accompanied with a certificate of compliance and exhibit SA8 are private documents in compliance with Section 90 of the Evidence Act, 2011 and are equally relevant and therefore are admissible before this Court. In all I find that exhibits SA3, SA6 and SA8 are admissible. It is pertinent to state that the claimant did not dump the documents tendered on the Court as the defendants would want the Court to hold. This is in view of the facts clearly shown on record. Id est the claimant referred to the documents in his pleadings as well as in his sworn deposition in support of his pleadings. He gave life to the documents by speaking to them. I therefore find and hold that the claimant linked the documents tendered to facts pleaded on record. I so find and hold.
33. Next is the crux of this case, it is the claimant’s claim that he is entitled to the prompt payment of all his security votes, travel allowance, monthly imprest and statutory allocation to his office. The Claimant pleaded in paragraph 8 of his statement of facts that he as a Deputy Governor of the State, was entitled to monthly salary, travel allowances, monthly imprest, security votes and other statutory allocations. While, the Defendants on the other hand admitted in paragraph 6 of their joint statement of defence that the Claimant is entitled to his monthly salaries and travel expenses with the approval of the 1st Defendant sought and obtained, but the monthly imprest, security votes and other allocations to the Claimant are subject to the availability of funds and at the discretion of the 1stDefendant. They equally averred at paragraph 7 of their pleadings that there are no statutory allocation for the Deputy Governor and imprest are not provided in the approved budget for him. The elementary and the trite law is that he who asserts must prove. See Section 131 (1) of the Evidence Act 2011, see also the case of Ebo & Anor v. Okeke & Ors LPELR-48090CA; Ukaegbu & Ors v. APGA & Ors  LPELR-47341CA; Ariyo & Ors v. Julius Berger (Nig) Ltd & Anor  lpelr 41474 ca. The claimant in prove of his claim tendered exhibit SA3 and at pages 11-12 of the Kogi State Government 2018 provisional General Warrant, pages 16-17 for the year 2019 and pages 63 of the 2018 of the Kogi State approved Budget all made provision for the claimant’s office; general overhead costs including salary, travelling allowances, security costs and other statutory allocations, save for imprest. Monies were appropriated as overhead costs, most of which are travel and transport, travelling allowances under head 220201022, 22020110, expenses incidental to Governor’s tour 22020112, Boundary Committee expenses, local training and international training, workshops, seminars and conferences, Assistance to the less privilege and orphanages, general expense, motor vehicle fuel cost, meeting expenses, etc these are monies appropriated and warrant issued and signed by the 1st defendant approving and authorizing the releases of funds for the purposes of meeting expenditure for carrying on the services of Government of Kogi State. It is in view of these that I find that the Claimant is entitled to all the rights and privileges of Office of the Deputy Governor of Kogi State including the prompt payment of all his travel allowances, monthly imprest, and other statutory allocations. Accordingly, relief one is resolved in claimant’s favour.
34. It is the claimant’s relief two that the defendant lacks the power to withhold the budgetary allocations due to him duly budgeted for his office in the Kogi State 2017 - 2019 budget and other statutory allocations due to his office. I have held earlier that the claimant is entitled to salary, travelling allowances, security costs and other statutory allocations. Claimant’s contention here is that the withholding of the sum of N921,572,758.00 being his travelling allowance, monthly imprest, security votes and other statutory allocations payable to him as the Deputy Governor of Kogi State is discriminatory and amounts to unfair labour practice. By Section 56 of Fiscal Responsibility Act 2007, defines "Appropriation Act" means an Act or law passed by the National or State Assembly or Local Government authorizing spending from Consolidated Revenue Fund and includes a Supplementary Appropriation Act or Law. According to the learned defence counsel, budgetary estimates are not sacrosanct but subject to availability of funds and that imprest are paid in arrears, that most ministries and government departments have not been paid their imprest. The breakdown of claimant’s claims are as stated hereunder.
35. The Claimant is seeking for the payment of the sum of N180,000,000.00 (One Hundred and Eighty Million Naira) outstanding monthly security vote from April 2018 – August 2019. Claimant averred in paragraph 14 of his statement of facts that his security vote is the sum of N10,000,000.00 (Ten Million Naira) per month which is totaling the above amount. The Defendants responded in paragraph 19 of their statement of defence averred that the deployment of security votes falls within the discretion of the 1st Defendant who can redirect the deployment in accordance with his change of strategy as the State chief security officer. It is the law that monetary claim like this are in the realm of special damages and ought to be proved specially and specifically. By way of a general restatement of the law on special damages, they are required to be specially pleaded and strictly proved by a claimant who owes the initial evidential burden of proof of assertions made by him, if judgment was to be entered in his favour by a Court. By specific pleadings, a claimant is required to provide essential particulars and details of the facts of the special damages suffered and claimed with adequate clarity to enable the other party know precisely, the nature of the claim. Notably, strict proof required for special damages does not mean an unusual or extra ordinary proof beyond and above the required standard of preponderance of evidence or balance of probabilities in all civil cases. Strict proof simply imports production of cogent, credible, admissible and sufficient evidence that would readily and easily support and make the items of the special damages claimed, certain, accurate and quantifiable. It is proof that is characterized by evidence that ties each item of the special damages claimed to the particulars of the facts pleaded by a claimant in his specific pleadings of the damages. See the cases of Union Bank Plc v. Nwankwo & Anor  LPELR-46418SC; Chuba v. Lagos State Agricultural Development Authority  LPELR-45828 (CA); O.M.T. Co. Ltd v. Imafidon  4 NWLR (Pt. 1290) 332; Adim v. N.B.C. Ltd  9 NWLR (Pt. 1200) 543. Exhibit Elijah which are certified copies of the correspondences between the claimant and the 1st defendant evinces that some of the documents tendered by the claimant as expunged are part of exhibit Elijah. The interest of justice allows the Court to consider all documents that will do justice to both parties as long as they satisfy the admissibility test. It is in the light of this that I will consider the documents tendered by the defendants that were equally tendered by the claimant which are one and the same in relation to the claims before the Court. Now, by Kogi State Government office of the Accountant General Lokoja Zenith Bank SRA ACCT (1014558813) 2018 office of the Deputy Governor reveals that the claimant was paid security votes from January, till March 2018 and was not paid for subsequent months. A careful perusal of exhibit ELIJAH tendered by the defendants and the claimant, one of which is a letter dated 12th January, 2017 was written by the claimant requesting for monthly responsibility allowance (Security vote), the 1st defendant on 12th of January, 2017, approved the sum of N10,000,000.00 (Ten Million naira) as security votes on monthly basis to the claimant. He equally directed the Hon. Commissioner Finance to disburse on monthly basis the said sum effective from 1/1/2017. There is no contrary letter or document stopping the payment of the said sum to the claimant. It is germane for me to state that the only means of communication in the government establishment as in this case is through letter and memorandum. Claimant has shown in evidence as same was admitted by the defence that the 1st defendant approved in writing monthly payment of responsibility allowance to him effective from 1st Januray 2017. He has equally shown without any shadow of doubt that he was paid uptill March 2018, and has since not been paid till he left office in August 2019. The statement of account tendered by the defendants did not show that he was paid for the rest of 2018 which invariably means he was not paid by the defendants since April 2018 till August 2019 as claimed by the claimant. The argument of the defence that the 1st defendant has the power to reorganize or do otherwise cannot hold sway here in view of his clear written official approval for payment of same, I thus discountenance with this unsubstantial argument. It is in consequence that I find that the claimant has proven that he is entitled to be paid responsibility allowance for the months of April 2018 to August 2019. I accordingly, Order for the payment of the responsibility allowance (Security vote) from April 2018 to August 2019. I so Order.
36. The Claimant’s claim for the sum of N328,032,000.00 (Three Hundred and Twenty Eight Million, Thirty Two Thousand Naira as outstanding monthly imprest due to him for the month of April 2018 – August 2019. The defendant stated that imprest are discretionary and are paid based on the Governor’s approval and availability of funds. They stated that imprest are privileges enjoyed by the office of the Deputy Governor and hence the claimant is not entitled to same. It is the law that he who asserts must prove. The onus is on the claimant to prove that he is so entitled on the preponderance of evidence. I have succinctly examined the documents tendered before the Court and regrettably, the claimant has done nothing to prove his claim in this regards. The effect is that judgment will not be given in favour of the claimant in this respect. See the case of Union Bank v. Ravih Abdul & Co. Ltd  LPELR 46333 SC. It is in this light that I find that claimant’s claim fails. I so hold.
37. The Claimant also claims the sum of N83,874,700.00 (Eight Three Million, Seven Hundred Eight Hundred Seventy-Four Thousand, Seven Hundred Naira). The claimant in prove of this claim tendered exhibit SA8 as approved memos awaiting cash backing wherein the sum of N37, 836,700.00 was approved also a cursory look at exhibit Elijah shows same that the sum was approved by the 1st defendant and it was paid. There is no document on record to substantiate this head of claim by the claimant. It is in the light of this that I discountenance this claim as being frivolous. I so hold.
38. The claimant also claims for the sum of N38,700,0000.00 (Thirty-Five Million, Seven Hundred Thousand Naira) as pledges awaiting approval. The defendants stated that the claimant has failed to link his assertions with his evidence. It is the law that the burden of proof is on the party who will fail where no evidence is adduced. He has to discharge the burden of proof resting on his shoulders to be so entitled to his claim. There is no scintilla of evidence on record to evince that claimant is entitled to this sum. It is in the absence of cogent or credible evidence in proof of this claim that I dismiss same as being unmeritorious. I so find and hold.
39. The claimant claims for the sum of N35,822,900.00 (Thirty Five Million, Eight Hundred and Twenty Two Thousand, Nine Hundred Naira) as Deputy Governor’s wife memos, awaiting approval, the sum of N950,800.00 (Nine Hundred and Fifty Thousand, Eight Hundred Naira) claimed as outstanding hotel bills yet to be approved and the sum of N50,169,855.98 (Fifty Million, One Hundred and Sixty Nine Thousand, Eight Hundred and Fifty Five Naira Ninety Eighty Kobo) as outstanding bills for the office of the Deputy Governor awaiting approval. The law is notorious that the legal burden of proof in a civil case is on a claimant to prove to the satisfaction of the Court the assertions made in the pleadings of the contentions upon which he meets his case and he has the onus of proving his case by preponderance of evidence. failure of the defendant to prove or his refusal to testify cannot alleviate the primary burden on the claimant. See the case of Oyeneyin v Akinkugbe  4 NWLR (Pt 1184) 265. In other words, in a civil suit, the person who asserts has the primary burden of proving the assertion. This is captured by the maxim "ei quii affirmat non ei qui megat Incumbit probation " which means the burden of proof lies on one who alleges. and not on him who denies. See the cases of Mustapha v. Zarma & Ors  LPELR 46326; Olaleye v Trustees of ECWA  2 NWLR (Pt. 1230) 1. Thus, the law requires that the onus is on the claimant to prove his claim. I have perused the documents on record and find no document in prove of this claim. There is no approval for any of these sums claim. In the Public Service, budgetary appropriation still has to be approved by the approving authority or officer before same can be claimed or released. As the claim stands, it is awaiting approval, hence it is yet to be approved by the 1st defendant and thus not an entitlement as a matter of cause. It is in view of this that I find that claimant claims fail. I so hold.
40. Claimant claims the sum of N204,022,500.00 (Two Hundred and Four Million, Twenty two Thousand, Five Hundred Naira) as the outstanding bills for travelling memos. The defendants as reiterated by paragraph 6 of their statement of defence averred that the claimant is entitled to his salaries and travel expenses for which approval had been sought and had from the defendant. The law is that, claims for salaries, allowances, bonuses, emoluments, etc are in the nature of special damages. Like in all claims for special damages, they need to be pleaded with particulars and evidence led thereon before they could be granted. In other words, such claims need be strictly proved. Thus, in the case of I.H.A.B.U.H.M.B. v. Anyip  12 NWLR (Pt.1260) p.1 at pp.20 - 21 Paragraphs H - A, Chukwuma - Eneh, JSC ; in his contributory judgment held as follows:
“I must observe in regard to this matter that the Respondent with regard to her pleadings has neither pleaded satisfactorily her special damages to wit - the salaries, allowances and other benefits that is accruable to her as pronounced by the Lower Court in its judgment nor have these items of special damages been specifically proved. None the less, the law is trite that unless pleaded and strictly proved, the Court is not obliged to make any awards in that regard for special damages. This aspect of the Lower Court's judgment should be set aside and I so hold." See also the case of Adekunle v. Uba Plc  LPELR 41124 CA. The claimant in this instant case pleaded this claim but failed to adduce evidence to support his claim. Thus, having failed to prove his claim specially his claim is bound to fail.
41. The claimant claims 10% post judgment interest. By the provisions of Order 47, Rule 7 of the National Industrial Court of Nigeria Rules 2017 it provides that at the time of making any judgment or order, the Court may order interest at a rate not less than 10% per annum to be paid upon any judgment. Clearly, the provisions vest a discretionary power on the Court to order, as it deems fit, that interest at the rate of not less than 10% be paid upon a judgment entered by it in favour of a party. Since the power is discretionary to the Court, like all other judicial discretion, it is to be exercised judicially and judiciously taken into consideration, the peculiar facts and circumstances of the case leading to the judgment. See the cases of Dokubo Asari v. F.R.N.  12 NWLR (Pt. 1048) 320; Sanni v. Agara  2 NWLR (Pt. 1178) 371. In the interest of justice that I order for the payment of 10% interest on the sum awarded in favour of the claimant. I so find and hold.
42. On the whole claimant’s claims succeed in parts and for the avoidance of doubt I declare and order as follows;
1. That the claimant is entitled to claims for salary, travelling allowances, security costs and other statutory allocations, save for imprest.
2. That the defendant lack the powers to withhold claimant’s salary, and other statutory allowances.
3. That the claimant is entitled to his Security votes from April 2018 to August 2019, in the sum of N170,000,000.00.( One Hundred and Seventy million naira) only.
4. That the claimant’s claim for N328,032,000.00 (Three Hundred and Twenty Eight Million, Thirty Two Thousand Naira as outstanding monthly imprest due to him for the month of April 2018 – August 2019 fails.
5. That the claimant’s claim for the sum of N83,874,700.00 fails.
6. The claimant’s claim in the sum of N38,700,0000.00 (Thirty-Five Million, Seven Hundred Thousand Naira) as pledges awaiting approval fails.
7. The claimant’s claims in the sums of sum of N35,822,900.00 (Thirty Five Million, Eight Hundred and Twenty Two Thousand, Nine Hundred Naira) as Deputy Governor’s wife memos, awaiting approval, the sum of N950,800.00 (Nine Hundred and Fifty Thousand, Eight Hundred Naira) claimed as outstanding hotel bills yet to be approved and the sum of N50,169,855.98 (Fifty Million, One Hundred and Sixty Nine Thousand, Eight Hundred and Fifty Five Naira Ninety Eighty Kobo) as outstanding bills for the office of the Deputy Governor awaiting approval fail.
8. The claimant’s claim in the sum of N204,022,500.00 (Two Hundred and Four Million, Twenty-Two Thousand, Five Hundred Naira) as the outstanding bills for travelling memos equally fails.
9. That the sum of N170,000,000.00 awarded to the claimant is to be paid within 30 days of this judgment failing which it is to attract an annual interest of 10%.
No award as to cost
Judgment is accordingly entered
Hon. Justice Oyewumi O.O