IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE CALABAR JUDICIAL DIVISION
HOLDEN AT CALABAR
BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO
3RD DAY OF JUNE 2021
SUIT NO: NICN/CA/117 2020
THE RT. HON LARRY OKORI-ODEY ……………………………………………………….. CLAIMANT
1. THE GOVERNOR OF CROSS RIVER STATE
2. ATTORNEY-GENERAL AND COMMISSIONER DEFENDANTS
FOR J USTICE, CROSS RIVER STATE
3. ACCOUNTANT-GENERAL OF CROSS RIVER STATE
1. This suit was commenced via Originating Summons dated 6/3/2020 and filed on the 12/3/2020, wherein the claimant submitted twin questions for determination. They are:-
1. Whether by the provisions of section 1(a) and (b) of the Cross River State Gubernatorial Pension Law, 2005 (as amended in 2015), the Claimant, who was Speaker of the Cross River State House of Assembly from 2011 to 2015 and Acting Governor of Cross River State from the 27th day of January, 2012 to February, 2012, is not entitled to the payment of the Pension benefits attached to the office of the Governor of Cross River State?
2. AND if the answer to question No. 1 above is in the affirmative, whether there is any legal basis or justification for the 2nd Defendant to stop the payment of the benefits provided under the Gubernatorial Pension Law of Cross River State to the Claimant?
2. In anticipation of favourable resolution of the questions posed in his favour the claimant seeks the following reliefs:-
1. A DECLARATION that the Claimant, having been an Acting Governor of Cross River State, is within the provisions of Section l(a) and (b) of the Gubernatorial Pension of Law of Cross River State entitled to be paid the pension benefits as a former Governor of Cross River State.
2. A DECLARATION that the action of the Defendants, particularly the 2nd & 4th Defendants in stopping the payments of pension benefits to the Claimant, is an infringement of the Claimant's rights as provided for in Gubernatorial Pension of Law of Cross River State and thus, illegal, unlawful and ultra vires their powers.
3. AN ORDER OF MANDATORY INJUNCTION, directing the Defendants, particularly, the 4th Defendant to forthwith compute and pay to Claimant, all his entitlements, pension benefits and such other remunerations due to him, and as provided for in the Cross River State Gubernatorial Pension Law (as amended in 2015).
4. AN ORDER OF MANDATORY INJUNCTION directing the Defendants, particularly the 4th Defendant to compute and pay to the Claimant, the sum of Twenty-Seven Million, Five Hundred and Nineteen Thousand, One Hundred and Fifty-sixty Naira, Forty-Five Kobo (N427,519,156.45) being the differential in the pension benefit payments made to the Claimant from June, 2015 to February, 2019 at the rate of Six Hundred and Eleven Thousand, Five Hundred and Thirty-six Naira, Eight Kobo (N611,536.8) per month.
5. AN ORDER OF MANDATORY INJUNCTION, directing the Defendants, particularly the 4th Defendant, to forthwith compute and pay to the Claimant the sum of Twenty-Three Million, Six Hundred and Thirty-one Thousand, Two Hundred and Eighty Naira, Ninety-Eight Kobo (£423,631,280.98) being his outstanding Pension benefits for the period of thirteen (13) months, starting from the month of March, 2019 to March, 2020 and thereafter, till the date of judgment.
Differential (45 months; June 2015 - February, 2019
@ the rate of N611,536.8) - N27,519,156.45
Period of Non-payments (March, 2019 - March, 2020
@ the rate of N1,817,790.85) - N23,631,280.98
TOTAL = N51,150,437.43
6. INTEREST on the judgment sum at the rate of ten (10) percent per annum from the date of judgment till the date the judgment sum/debt is fulfilled.
7. AN ORDER OF PERPETUAL INJUNCTION, restraining the Defendants, their servants, agents or privies from stopping the payment of the Gubernatorial Pension or any other remuneration entitlement or benefit provided for in the Cross River State Gubernatorial Pension Law, 2005 (as amended in 2015), to the Claimant or in any other form or manner howsoever, interfering with the Claimant's rights to the enjoyment of the privileges and benefits provided thereunder.
3. The Originating Summons is supported by 31 paragraphs affidavit and four
Exhibits marked Exhibits MEU-1 to MEU-4. A written address was filed along with the Originating summons.
4. The facts that gave rise to institution of this action are that the claimant served as speaker of the Cross River State House of Assembly from 11/6/2011 to till June 2015, when the House of assembly stood dissolved by efflux-ion of time. However, in between the period the claimant had served as Acting Governor of Cross River State from 27/1/2012 to February 2012.
5. The claimant stated that he is entitled to receive pension as a former Governor of Cross River for his service as Speaker and Acting Governor of the State. Exhibit MEU3, a letter written by Permanent Secretary Department of Establishment and Management Services addressed to Accountant General of Cross River state copied to him, conveyed approval for the payment of his pension benefits and computed his entitlements as Acting Governor.
6. The claimant stated that the defendants commenced payment of his pension entitlement in August 2015 as former Speaker, but not as former Governor without taking cognizance of the fact that he served as Acting Governor of the State. He also stated that he is entitled to the sum of N1,817,790.85) (One Million Eight Hundred and Seventeen Thousand, Seven Hundred and Ninety Naira, Eighty Five Kobo). The payment of N1,206,254.03 paid to him was entitlement of Speaker. The claimant was paid as a Speaker from June 2015 to February 2019, a period of 45 Months, when the defendants for no justifiable reason stopped making payment to him. The claimant had not received his pension from March 2019 till date. The claimant together with one Rt. Hon. Francis Busam adah, who also acted as Governor of cross River state in 2008, having noticed incorrect computation of their entitlement jointly wrote an appeal to the Governor of Cross River State. Exhibit MEU-4.
7. Based on the above facts the claimant is seeking for court to order the defendants to pay him his entitlement amounting to the sum of N51,150,437.43 (Fifty One Million, One Hundred and Fifty Thousand, Four Hundred and Thirty Seven Naira, Forty three Kobo). He also seeks order for defendants to resume payment of his pension benefit.
8. In oral adumbration before the Court Mba Ukweni, SAN, appearing for the claimant, relied on the depositions contained in the affidavit in support, the further and better affidavit filed on 31/7/2020 . the Learned Silk also adopted the written addresses filed along with the Originating Summons and that filed with further and better affidavit as his argument.
9. In the written address the Claimant has put forward two (2) questions for determination and seven (7) reliefs as set out on the originating summons. They have been reproduced in the earlier part of this judgment.
10. However in arguing counsel formulated one issue for determination, to wit:-
‘‘Whether, considering the provisions of Section l(a) and (b) of the Cross River State Gubernatorial Pension Law, 2005 (as amended in 2015) and the totality of the facts of this case, the Claimant who was acting Governor of Cross River State from 27"' January, 2012 to February, 2012 is entitled to the reliefs sought?’’
11. In arguing this issue the learned Silk, submitted that the Defendants in recognition of the fact that the Claimant is entitled to pension benefits as provided for under the Cross River State Gubernatorial Pension Law (as amended in 2015), prepared Exhibit MEU-3, setting out his due entitlements under the law, recognizing his rank as Acting Governor. Contrary to Exhibit MEU-3, the Defendant paid the Claimant entitlements equivalent to that of a former Speaker. As if that is not enough wrong done to the Claimant, the 2nd Defendant for no justifiable cause, directed the 4th Defendant to stop making payment of his pension benefits to him, be it as a former Speaker of the Cross River State House of Assembly or Acting Governor of Cross River State. See paragraph 24 the supporting affidavit.
12. The Learned Silk posited that there is no disputing the fact that the Cross River State Gubernatorial Pension Law, 2015, makes provision for pension benefits for
persons who held the positions of Governor, Deputy Governor, Speaker and
Deputy Speaker in Cross River State. The issue in contention in this suit is
not the morality associated with the law, but whether:
(i) The 2nd Defendant, as the Governor of Cross River State can unilaterally ask the 4th Defendant or any other Government official to stop paying the Claimant herein his due entitlements under the law?
(ii) The Claimant is entitled to be paid pension benefits as a former speaker of the Cross River State House of Assembly or as the former Governor of Cross River State?
13. Counsel refers to the interpretation section of the law, that is, Section 5 of the Cross River State Gubernatorial Pension Law, 2005 (as amended in 2015). The words "Governor or Deputy Governor" is defined therein, to include:
"Governor, Deputy Governor or Acting Governor of Cross River State."
14. It is submitted that the above definition which is clear and unambiguous, brings in the Claimant within the purview of former Governor and therefore entitled to be paid the pension benefits equivalent to that of a former Governor, as provided for in the law.
15. It is also the submission of counsel that a careful examination of the totality of the law will show nowhere is the 2nd Defendant given the power or authority to suspend or stop the payment of pension benefits due to any of the beneficiaries therein. Accordingly, it is the contention of counsel that the 2nd Defendant has no justifiable cause to stop the payment of pension benefits under the law to the Claimant. Counsel urged the court to so hold.
16. In concluding submission the Learned Silk urged the court to resolve the sole issue formulated in the affirmative in favour of the claimant and grant the reliefs sought.
17. The defendants in reaction to the Originating Summons filed 11 paragraphs counter affidavit and a written address. A notice of preliminary objection to the competency of the suit was also filed by the defendants.
18. The salient averments in the counter-affidavit are to the effect that the claimant served as Acting Governor of Cross River State, in representative capacity until vacancy to the Governor of Cross River state was filed after a re-run election.
19. The defendants also stated that assumption of office of the Governor is via an election and such person must have held office for at least a period of four years. The claimant was never elected as Governor and never served for four years as a Governor. As at the time claimant left office in 2012, there was no amendment to pension law to include persons on acting capacity. The claimant left office as Speaker of the House of Assembly in 2015. Exhibit MEU-3 did not emanate from any of the Ministries, Departments and or agencies. If at all it did, it was issued based on the pressure and undue influence from the claimant. The figure calculated due to claimant was wrong. As the claimant is entitled to pension as a former speaker and not as Governor. As there cannot be two governors within the same period of contention.
20. The defendants stated that payment of pension to claimant as a former Speaker will resume once he attend verification/audit exercise of pensioners that was conducted by the 1st defendant in the state which the claimant bluntly refused to attend despite repeated invitations.
21. In the written address the defendants converted the twin questions submitted by the claimant for resolution to a sole issue for determination, to wit:
Whether, considering the provisions of section 1(a) and (b) Cross River State Gubernatorial Pensions 2005 (as amended in 2015) and in totality of the facts of the case, the Claimant who was acting Governor of Cross River State from 27th January, 2012 to February 2012 is entitled to the relief sought?
22. T. O. Inyamba, Esq; counsel for the defendants in his oral submission before the court, placed reliance on the depositions contained in the counter affidavit sworn to by Edet Okpo Eni, a Chief Litigation Officer in the Department of Litigation, Ministry of Justice, Calabar. Counsel also adopted the written address filed along with the counter affidavit as his argument.
23. In arguing the sole issue identified for resolution counsel for the defendant submitted that the pertinent questions that would assist in just determination of the suit are:-
a. Did the Claimant leave office in 2015 as an acting Governor of Cross River State or as Speaker of the Cross River State House of Assembly?
b. Is it possible to pay pension to two Ex- Governors who served between 2011 to 2015?
c. As at the time the Claimant 'retired' in February 2012, after acting as Governor for 32 days, was the Cross River State Gubernatorial Pensions 2005 (as amended in 2015 in force ?
24. Counsel refers to paragraphs 3 & 4 of the affidavit in support where the claimant deposed to the fact that ‘I was first elected into the Cross River State House of Assembly in 2007 ... re-elected on the 2nd day of April 2011..., on the 11/6/2011,1 was elected on the floor of the Cross River State House of Assembly as the Honorable Speaker of the Cross River State House of Assembly. A position I held till 2015 when the house stood dissolved ....', it is submitted by counsel that facts admitted need no proof, having admitted in his affidavit that he left office in June 2015, as a Speaker, he cannot in one breath claim to be a former Speaker and in another breathe claim be an ex- Governor. In support of this contention counsel relied on the case of JITTE & ANOR OKPULOR (2015) LPELR 25983 (SC). The law is trite and well settled that facts admitted are no longer issues between the parties.' The position of the law is 'that facts admitted require no further evidential proof: See: Bajoden v. Iromwanimu (1995) 7 NWLR (Pt. 410) 655; Obmiami Brick & Stone Nig. Ltd. v .A.C.B Ltd . (1992) 3 NWLR (Pt.229) 260 at 301 ; and Olagunyi v. Oyeniran (1996) 6 NWLR (Pt. 453) 127 at 143."
25. Counsel posited that having established that the Claimant left office as a Speaker of the Cross River State House of Assembly in 2015, the question that begs for answer, is, the Claimant qualified to be called and addressed as a former Governor, thereby entitling him to the Pension that enures to Ex Governor of Cross River State? The above question becomes even more compelling given the fact that the Claimant had unambiguously stated in paragraph 7 of his affidavit in support of Originating Summons that he ' held the office of the Acting Governor of Cross River State for a period of thirty- two (32) days during the period, afresh election was conducted into the office of the Governor of Cross River State and Sen. Liyel Imoke emerged as the winner of the election.'
26. According to counsel, the Claimant further shot himself in the foot when in paragraphs 4 , 8 and 9 of the affidavit in Support of Originating Summons he deposed to the fact that he was elected as a Speaker of the House of Assembly, upon the swearing in February,2O12, he "handed over the office of the Governor of Cross River State...." to continue in my duties as a Speaker of Cross River State House of Assembly, the position he held from 2011 to 2015 when the house of Assembly was dissolved.
27. Counsel submitted that the Claimant in trying to justify his claim submitted that by Cross River State Gubernatorial Pensions (Amendment) Law 2015 he was entitled to be paid Pension as an Ex- Governor of Cross River State. It is submitted that there is no provision in the Constitution of the Federal Republic for the position of' acting Governor'. Section 318 of the Constitution, which is the interpretation section, defines Governor or Deputy Governor to mean, Governor of a state or Deputy Governor of a State. There cannot be two captains in one ship at a particular time. It is trite that if any law is inconsistent with the provision of the 1999 Constitution, the Constitution shall prevail and the other law shall to the extent of the inconsistency be void. This inclusion of ' acting' ... in the Cross River State Gubernatorial Pensions (Amendment) Law 2015 is void to the extent of this inconsistency and of no effect and we urge the Court to so hold. See "Section 1 of the Constitution of the Federal Republic of Nigeria (2011) as amended. In support of this contention counsel relied on the case of LAFIA L.G.A VS EXECUTIVE GOVERNMENT OF NASARAWA STATE & ORS (2012) LPELR-2o6o (SC), where the Supreme Court stated that 'The Constitution is Supreme and its provisions shall have binding force on, all authorities and persons throughout the Federal Republic of Nigeria". Sub-Section 3 (i) reads:- "If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that law shall to the extent of the inconsistency be void".
28. It is submitted that the Claimant in his Written Address urged the Court to interpret section 5 of the Cross River State Gubernatorial Pension Law, 2005 (as amended in 2015) in order to determine whether the Claimant is entitled to be paid pension as a Former Speaker (as he is currently been paid) or a an Ex -Governor as he prays the Court. Counsel contended that assuming but without conceding that persons who were Acting Governors in Cross River State are entitled to pension, the Claimant is not entitled to be paid as an Ex- Governor, the reason being that his cause of action accrued in February 2005. The applicable Law enabling Ex-Governors of Cross River State to receive pension as at the time he left office was the Cross River State Gubernatorial Pension Law, 2005, the amendment of the present law was done in 2015 long after he had left office of the Governor and continued his political career as the Speaker of the Cross River State House of Assembly. In the Supreme Court case of OWIE VS. IGHIWI (2005) LPELR – 234680 the court stated that "the accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin to maintain his cause of action. “In the case of DANTATA & ANOR VS. MOHAMMED (2OOO) LPELR-925 S/C "The words cause of action mean "simply a factual situation the existence of which entitles one person to obtain ... a remedy against another person." In EGBUE VS. ARAKE (1988) NWLR PT 84 PG. 598. " it was held that cause of action means facts or combination of facts which give rise to right to sue. This right to sue consists of the wrongful acts of the Defendants which gives the Plaintiff the right to complain....' The Claimant's right to sue for his pension was in 2012 after he had left office as Acting Governor.
29. It is the submission of counsel that the position of the Nigerian law as upheld by several Supreme Court decisions remains that the law in force or existing at the time the cause of action arose is the law applicable for determining the case. The position was amply and admirably captured in the leading Judgment of B. Rhodes- Vivour JSC in OBIUWEUBI vs. CENTRAL BANK OF NIGERIA (2011) 2-3 SC (pt) 46 @ 74.
"The law in force or existing at the time of action arose is the law applicable for determining the case. This law does not necessarily determine the jurisdiction of the Court at the time that jurisdiction is invoked. That is to say the law in force at the time the cause of action arose governs determination of the suit while the law in force at the time of trial based on cause of action determines the Court vested with jurisdiction to try the case...A litigant who had a cause of action in 1990 would have his case governed by the law at the time, i. e 1990".See also the case of AREMO II V. ADEKANYE (2004) 19 NSCQLR pg. 272 at 274 "The Legal position is that the applicable law to a cause of action is the law prevailing at the time the cause of action arose
30. Counsel submitted by the above cited cases the Claimant's cause of action for the demand of his pension arose in February 2005, when he left office as Acting Governor. The Cross River State Gubernatorial Pensions Law, 2005 (as amended in 2015) came into force on 19th day of May 2015. The Claimant's cause of action arose in February 2012 and his case is governed by the law as at that time, which is Cross River State Gubernatorial Pensions Law, 2005, the law came into force on the 1st day of January 2005. The definition section 4 of Cross River State Gubernatorial Pensions Law, 2005 defines " Governor' or deputy Governor to mean a Governor or Deputy Governor of Cross River State and nothing more, it did not by an stretch of imagination include Acting Governor of Cross River State, by the time the amendment of the substantive law took effect, the Claimant had long ceased to be Acting Governor. It is trite that Laws do not take retrospective effect. In GARBA VS. FEDERAL CIVIL SRVICE COMMISSION & ANOR(1988) LPELR-13O4 SC "The general rule is that no Statute shall be construed to have a retrospective operation, unless such a construction appears very clearly in the terms of the statute, or arises by necessary or distinct implication. The Claimant would have had his day in Court if he acted as Governor when the amendment took effect, having acted before the Amendment of the substantive Law, he is not entitled to paid pension as an Ex-Governor but as a former Speaker, which pension the Defendants have been paying.
31. In concluding his submission counsel urged the court to resolve the issue in favour of the Defendants.
32. The claimant filed a reply to the defendants written address wherein the sole issue identified by counsel for the defendants was adopted by the claimant. The issue is:
"Whether, considering the provisions of Section 1 (a) and (b) Cross River Gubernatorial Pensions 2095 (as amended in 2015) and the totality of the facts of the case, the claimant who was Acting Governor of Cross River State from 27th January, 2012 to February 2012 is entitled to the relief sought?"
33. In canvassing argument on the reply, the Learned Silk appearing for the claimant submitted that the three issues raised in respect of the main issue for resolution cannot assist this Honourable Court in the resolution of the issue herein, but are rather formulated to distract this Honourable Court from the main essence of this Suit, which is the interpretation of the provisions of a statute. The issue for determination is very simple and does not require any further breaking down for easy assimilation. The Court should look at the provisions of Section 1 (a) and (b) of the Cross River State Gubernatorial Law and determine whether the said law provides pension for persons who have been "Acting Governor" of the State. That is all.
34. It is submitted that the Law did not prescribe any conditions that must be adhered to before a person who comes under the contemplation of the law can take benefit thereof. The Learned Silk posited that the Defendants cannot now impute non-existent conditions into the clear and unambiguous provisions of the Cross River Gubernatorial Pensions Law, 2005 (as amended in 2015), especially, when Section 5 thereof has defined the words "Governor or Deputy Governor" to include "Governor, Deputy Governor or Acting Governor of Cross River State."
35. Counsel also contended that the duty of the court is to interpret a statute in accordance with the intention of the lawmakers. On this submission reference was made to the case of ISAM v. STATE (2018) 8 NWLR (Ft. 1621) 346 @361, Paras. B-C.
36. According to the Learned Silk, it is thus not a question of whether it should be so or not, but a question of what is provided for by the statute. It is submitted that the answer to that poser is that the law provides pension for any person who has been "Acting Governor" of Cross River State, counsel urged the court to so hold.
37. According to counsel the Claimant had Oath of Office of Acting
Governor administered on him on the 27th Day of January, 2012. (See
Exhibits MEU-1 and MEU-2). By virtue of that Oath, regardless of the
length of time spent in the said office, he is an Ex-Governor. The
Defendants cannot wish that away. They cannot also sustain the
argument that because he was there for 32 days only therefore he is not
entitled to his pension as stipulated in a subsisting law in the state. As
pointed out earlier, there is no such clause or condition attached to the
provisions of the Cross River State Gubernatorial Pension Law, 2005 (as
amended in 2015) and we urge this Honourable Court, most respectfully,
to so hold.
38. It is submitted that the Defendants cannot seriously be arguing that the position of an Acting Governor is unconstitutional. Not when the provisions of
Sections 190 and 191 of the Constitution of the Federal Republic of
Nigeria, 1999 (as amended) has clearly specified what should be done in
the event of a vacancy in the office of Governor and Deputy Governor.
Counsel contended that the submission made by learned counsel to the Defendants in paragraph 3.5 of their written address can certainly not be taken seriously at all. There is no inconsistency with the provisions of the
Constitution in that regard.
39. It is submitted that though Cross River State Gubernatorial Law, 2005 did not make provisions for the payment of pension to Acting Governors. The Law was amended to include such persons in the 2015 amendment. The Defendants have pointed this out in Paragraph 3.8 of their written address. It was not the making of the Claimant and if a Law is made which contains provisions that are to his benefit, he certainly has the right to take the benefit.
40. In specific response to paragraph 3.6 of the Defendants' Written Address, counsel submitted that there is no limitation to the time within which an individual can bring an action under the Cross River State Gubernatorial Pension Law, 2005 (as amended in 2015). Besides, the injury is in continuum and has not abated, therefore even if there was a limitation, the Claimant is not caught up by same. The Supreme Court of Nigeria has severally held that the continuance of a legal damage or injury is an exception to the general exception to the general rule on limitation of action. See the case of I.N.E.C v. ONOWAKPOKO (2018) 2 NWLR (Ft. 1602) PAGE 134 @ 142.
41. In response on the point that the Law was not in force at the time the Claimant left office, it is the submission of counsel that the Claimant was still in active service until 2015 when the amendment that brought him under its wings was made. He retired in 2015 and thus is entitled to benefit from the Law.
42. Upon being served with the Originating Summons the defendants filed a notice of preliminary objection dated 9/6/2020, filed on the same day. The notice of preliminary objection was brought pursuant to Order 3 Rule 2(2), (3), 17(1) (C) (2) of the National Industrial Court of Nigeria, (Civil Procedure) Rules 2017 and under the inherent jurisdiction of the Court. The Notice of preliminary objection is to the effect that this suit is incompetent and ought to have been struck out. The grounds for the objection are:-
I. That this suit is incompetent having been commenced by way of Originating Summons.
II. The suit is replete with contentious facts.
43. A written address was filed along with the notice of preliminary objection. Counsel for the defendants adopted the written address as his argument on the notice of preliminary objection. In the written address twin issues were formulated for determination. They are:-
1. Whether this suit is competent, being commenced by way of Originating Summons.
2. If issue 1 is answered in the positive, an order of this court directing the claimant to file his pleadings.
44. Issue one; whether this suit is competent, being commenced by way of originating summons. In arguing this issue counsel submitted that this suit is incompetent being commenced by way of originating summons because there are substantial dispute of facts between the parties and a resort to originating summons to settle such burning questions to finality will not suffice. In support of this contention counsel relied on the cases of Hussaini Isa Zakirai vs. Salisu Dan Azumi Muhammad & Ors (2017) LPELR - 42349 (SC), Standard Cleaning Services Company vs. the Council of Obafemi Awolowo University, Ile-Ife (2011) 14 NWLR (pt. 1269) 193 at 204 - 205 213, THE FEDERAL GOVERNMENT OF NIGERIA & ORS. V. ZEBRA ENERGY LTD (2002) LPELR-3172(SC), in these cases it was held that Originating Summons should only be applicable in circumstances where there is no dispute on the question of facts or even the likelihood of such dispute. Application for initiating contentious issues of facts where the facts of the plaintiff leave matter for conjecture, Originating Summons is not appropriate procedure. Where it is obvious from the state of the affidavit that there would be an air of friction in the proceedings, then an Originating Summons is not appropriate. Originating Summons should he used only where the proceeding involves question of law, rather than disputed facts, even where the facts are not in dispute, the Originating Summons should not be used, if the proceedings are hostile.
45. It is the submission of counsel that the provisions of Order 3 sub 17(1) (c) of the Rules of this Honourable Court, the provision on the said subsection states that' where a suit raises a substantial dispute of facts or is likely to involve substantial dispute of facts, it shall not be commenced by way of originating summons, but by complaint...' it is submitted that going by claims in the process filed, there are substantial disputes of the facts of the case and is it not possible for the court to resolve the dispute to its finality and award the claims against the Defendants through originating summons.
46. It is submitted by counsel Originating Summons is only intended to enable the court to decide questions of construction. It is not intended that questions of construction which, if they are decided in one way only, will not settle the dispute between the parties, such should not come up for decision on an originating summons. It would be most inconvenient to resort to the order in a case where it is quite uncertain what may be the ultimate decision on the point of construction, and where if the decision is in one way it involved further litigation. In support of this contention counsel relied on the case of ADEMILUYI AND ANOR V AFRICAN CONTINTENTAL BANK Ltd (1964) WNLR.
47. It is submitted that the issues raised by the Claimant on the originating summons are contentious in nature, they involved substantial dispute of facts and would require oral evidence to resolve and that as such, the use of originating summons is improper because there are substantial and real dispute of facts in this suit which cannot be resolved by way of originating summons. Counsel submitted that from the affidavit and exhibits filed by the Claimant, the bone of contention is whether the Claimant qualifies to be paid pension as Former Acting Governor or Former Speaker of the Cross River State House of Assembly, considering the fact that in paragraphs 3, 4 and 9 of his affidavit in support of originating summons, he deposed to the facts that he was elected to the Cross River State House of Assembly in 2007 and re-elected in 2011 and as a Speaker in the floor of the House of Assembly, a position he held until the dissolution of the House of Assembly via exflusion of time of his tenure in June 2015. Also in paragraphs 17, 24 and 28 of his affidavit in support of originating summons, he deposed to the facts that ... ' the Defendants for no justifiable reason, stopped making payment to me either as former Speaker or as former Governor of Cross River State. I have not received any pension benefit from the Defendants from March, 2019 till date.' It is further submitted that the contention of the Defendants is that the Claimant cannot take benefit and or rely on a Law amended in 2015 whilst he acted as Governor in 2012, the Court therefore cannot grant the reliefs sought by the Claimant as there are substantial issues in dispute by the parties.
48. Counsel also submitted that, the only remedy available for a party who had submitted any question of interpretation or construction of instrument, enactment, deed or Will to the Court is the remedy of declaration. Anything, outside of the remedy of declaration would have to be accommodated via Complaint. In the instant case, it is only claims (a) and (b) of the Claimant are declaratory reliefs, the other claims of the Claimant notably, claim 3, 4, 5, 6 and 7 are all not for declaration of right, they go beyond declarations of right, they are in the nature of enforcement orders and therefore not appropriately commenced by way of originating summons. A declaration of right connotes an action in which a litigant requests a Court's assistance not because any rights have been violated but because those rights are uncertain. It is submitted that this suit would have been properly commenced via originating summons if the Claimant was only asking the Court to interpret some sections of the Cross River State Gubernatorial Pensions (Amended) Law 2015 Law and pray the Court for declarative reliefs that such rights enures to him having acted for only 32 days as Governor of Cross River State without more.
49. It is submitted that there being substantial disputes of facts as earlier highlighted, we submit that by the nature of the claim, this suit cannot be by originating summons, therefore the resort to instituting this action by originating summons is irregular having regards to the conflicting assertion which cannot be resolved to arrive at a just determination of the claim before this Court. In PETER V JACKSON (2001) 49W.R.N 118 at 137-
138, per Ekpe J.C.A on the need for Counsel to be wary in instituting suit by way of originating summons said" I have observed with dismay the frequency with which many counsel make improper (italics mine) use of Originating Summons procedure in initiating proceedings in the High Court in respect of matters which obviously are embedded with disputed facts and which ought to be tried on pleadings. Such attitude by counsel should be discouraged in the interest of their clients who suffer in the long run. Even though the Originating Summons procedure is short, simple and less expensive, it has to be realized that often times the shortest way out becomes the longest and the most expensive way out as in the instant case" INAKOJU V ADELEKE ADEOLU( 2009) 3LC pg 40 @45 H.1,2.
50. Issue two: if issue one is answered in the positive, an order of this court directing the claimant to file his complaint. According to counsel where a suit is wrongly commenced in an action which ought not to be commenced by Originating Summons, the proper order the trial court should make in the circumstance is to order for pleadings to be filed. In support of this submission reference was made to the cases of ADEYELU 11 vs. AJAGUNGBADE 111 ( 2007) 14 NMLR PT 1053 pg1@3H. 2, MOSES V. ERUWA & ORS (2013) LPELR -21168 CA.
51. It is submitted that originating summons procedure is not ideal where there is violent dispute of facts of such proportion that makes the resolution of the dispute impossible or likely so. In litigations, there would always be dispute on questions of fact. It is however the difficulty, nay, the impossibility of the resolution of such a dispute on the basis of the affidavit in support of and opposition to the originating summons that will make commencing an action with an originating summons inappropriate. Where the dispute of facts remains hostile, such as in the instant case, their pleadings are ordered instead. Director SSS v. Agbakoba (1999) 3 XWLR (Pt. 595) 425, Olumide v. Ajayi (1997) 8 NWLR (Pt. 517) 433.. See Emezi v. Osuagwu (2005) 12 NWLR (Pt. 939) 340, 347, Atago v. Nwuche (2013) 43 NWLR (Pt. 1341) 337, REGISTERED TRUSTEE OF IMPORTERS ASSOCIATION OF NIGERIA & ORS VS. OKEREKE (2019) LPELR - 46967 CA,.
52. In concluding submission counsel urged the court to order that parties file their pleadings as that is the proper Order to make once the Court is of the view that a Suit is wrongly commenced by Originating Summons.
53. In reaction to the notice of preliminary objection the claimant filed a reply in opposition to the objection of the defendants to the competency of this suit. In the written address, twin issues were formulated for resolution by the court. They are:-
1. Whether, considering the facts of the case and the issues placed before this
Honourable Court, the Claimant's suit was properly commenced by way of
originating summons ?
2. And if not, what is the remedy available for the court to make in the
54.Counsel argued the twin issues together. Counsel submitted that this suit was properly commenced by way of originating summons. As it merely calls for interpretation of the provisions of the Cross River State Gubernatorial Pension Law, 2005 as amended in 2015, and apply them to the facts of the case in order to determine the Claimant's rights or entitlements thereunder. An originating summons is usually used when what is in dispute is the mere construction of documents or interpretation of law, as in the instant case, in respect of which pleadings are unnecessary and where the facts are not in dispute. See the case of JOHNSON & ORS v. MOBIL OIL PRODUCING UNLIMITED & ORS (2009) LPELR 8280 (CA) where the Court of Appeal held thus:
"... An action could be brought by originating summons where the sole or principal question in issue is or likely to be one of construction of a statute, or of any instrument made under a statute or deed, will, contract or other document or some other questions of law." Per Orji-Abadua J.C.A, P.30. para. D.
55. It is the contention of counsel that contrary to the contention of the Defendants,
there are no facts in dispute herein. The fact that the Claimant is a former Speaker of the Cross River State House of Assembly is not in issue. He was indeed a Member of the Cross River State House of Assembly from 2007 - 2011, re-elected in 2011 and elected on the floor of the House as The Right Honourable Speaker, a position which he held until the end of his tenure in 2015 as Member Cross River State House of Assembly.
56. Also, the fact that the Claimant took over as Acting Governor of Cross River State from 27th January - February 2012 is not being contested by the defendants. They have in fact admitted that in paragraphs 4 and 5 of the counter-affidavit and paragraphs 3. 4 - 3. 6 of their written address in support of the preliminary objection.
57. Counsel submitted that having established the above, the question left for consideration and determination by the court is whether by virtue
of the Cross River State Gubernatorial Pension Law, 2005 (as amended
in 2015), a person who acted as Governor of Cross River State, is entitled to pension benefits under that law? that is the simple question which has been put forward and placed before the court for determination. It is submitted that the question was properly before this Honourable Court and it is competent to be determined in an originating summons.
58. Counsel contended that this suit is not one that requires pleadings. It has to do with the interpretation of the provisions of the statute vis-a-vis the rights of the Claimant. It is a matter that can be decided based on the documents presented before the court alongside the affidavit evidence placed side by side with the law. Counsel insisted this is the most appropriate case to be determined by originating summons. If the instant suit is excluded from the purview Order 3, rule 3 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, then, no suit will be appropriate to be considered and determined by originating summons. Counsel maintain that the suit is thus properly brought via Originating Summons. May we refer my Lord to the case of Famfa Oil Limited v. A.G Federation (2003) 18 NWLR, Part 852, Page 453 @ 467, paras. D-G.
59. On second issue, counsel submitted assuming but not conceding that
the suit should not have been commenced by originating summons, what
is the remedy available for the court to make in the circumstance?
60. According to counsel the construction of the defendants' issue No. 2 is very curious. Going by the wordings, the Defendants want this Honourable Court to
determine whether or not this suit is competently brought via originating
summons and if the Court determines same to be competent, then the Claimant should be ordered to file his pleadings. That is contradictory in terms and does not, with clue respect, make a sound argument.
61. It is submitted that the defendants cannot be correct in their contention that the appropriate order to be made by this Honourable Court if the court resolve issue No. 1 in the positive is to direct the Claimant to file
his complaint. According to counsel resolving the defendants' Issue No. 1
in the positive simply means, agreeing that this originating summons is
competent and if so, then the appropriate order to be made is one
dismissing the preliminary objection for being bereft of merit (which it is
in any event) and proceed to determine the originating summons by
entering judgment appropriately.
62. It is contended that the defendants have also been unable to show the contentious or violent dispute of facts in this case that must warrant the Court to direct the parties to file and exchange their pleadings in this case. It is submitted that there is no contentious fact in dispute in this case. This is a
very straightforward case, wherein the court is being called upon to
interpret the provisions of the Cross River State Gubernatorial Pension
Law, 2005 (as amended in 2015) as it relates to the rights accruing to the
Claimant under the said Law, and grant the necessary reliefs.
63. Counsel submitted that this suit was not wrongly commenced. The Claimant has brought forward, questions that the construction of the relevant sections of statute, in this case, the Cross River Gubernatorial Pension Law, 2005 (as amended in 2015) will answer smoothly, hence, there is no need for pleadings.
64. In concluding his submission counsel urged the court to dismiss the preliminary objection as is in dire want of merit.
65. I have carefully considered the Originating Summons commencing this suit as well as the counter affidavit filed by the defendants in opposition. I have equally considered the notice of preliminary objection filed by the defendants and the response by the claimants.
66. On 2/3/2021, when this matter came up for hearing I took argument in respect of both the Originating Summons of the claimant and the notice of preliminary objection filed by the defendants challenging the competency of commencing this suit via Originating Summons.
67. I shall start this judgment with the consideration of the notice of preliminary objection.
68. For the defendants/objectors, this suit was not properly commenced via Originating Summons. According to the defendants/objectors, the facts as disclosed by the affidavit evidence are contentious, in the circumstances this suit ought to have been commenced by use of complaint and not Originating Summons. The claimant/respondent on his part, submitted that the suit before the court was properly commenced through the use of Originating Summons. According to the claimant/respondent there are no disputes of facts that will warrant use of complaint. It is also the position of the claimant/respondent that the Originating Summons is simply seeking for interpretation of the provisions of the Cross River State Pension law 2005 as amended by the 2015 law.
69. The provisions of Order 3 Rule 3 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017, is very clear and unambiguous. By the rules of this court Originating Summons can be resorted to where the party is seeking for interpretation of constitutional provisions or any statute law or document. It can also be employed by a litigant for purposes of ventilating his grievances before the court based on facts that are not notoriously contentious or disputed. See Order 3 Rules 16 and 17 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017. It is apparent from the provisions of Order 3 of the rules of this court that, Originating Summons is best suited for cases where there are no substantial disputes of facts. Therefore, Originating Summons should only be applicable in circumstances where there is no dispute on the question of facts or even the likelihood of such dispute or for situations requiring interpretation.
70. Where it is obvious from the state of the affidavits evidence that there would be an air of friction in the proceedings, then an originating summons is not appropriate. Originating summons should be used only where the proceedings involves question of law, rather than disputed facts, even where the facts are not in dispute, the originating summons should not be used, if the proceedings are hostile. See S.C.S. Co. v. Council, O.A.U., Ile-Ife (2011) 14 NWLR (Pt. 1269) 193, Olley v. Tunji (2013) 10 NWLR (Pt. 1362) 275, S.C.
71. As pointed out earlier, generally, Originating Summons is used for non-contentious actions, that is, those actions where facts are not likely to be in dispute. Where facts are in dispute or riotously so, an Originating Summons procedure will not avail a claimant and he must come by way of complaint. See proviso to Order 3 Rule 17 of the rules of this court. In other words, an Originating Summons will not lie in favour of a claimant where the proceedings are hostile in the sense of violent dispute. See Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423; Osunbade v. Oyewunmi(2007) All FWLR (Pt. 368) 1004.
72. The court in determining whether or not a suit was rightly commenced by Originating Summons, the court is not called upon to resolve disputes of facts but to apply the law (as to when a suit can be commenced by originating summons) to the facts in the affidavit in support of the originating process and, in some instances, the facts in the counter-affidavit opposing the process to see if they are potentially hostile or indeed hostile. The court of appeal has in the case of Owuama v. Obasi Once a court is called upon to determine facts which parties must prove by oral evidence, even though documentary evidence would also be put in issue, such proceedings are hostile proceedings and the use of originating summons is totally unsuitable.
73. In the instant case, the question submitted for determination and the facts deposed to by the parties in their various affidavits point to the fact that the proceedings would not likely be contentious. The issues to be resolved revolve on interpretation of the provisions of the Gubernatorial Pension Law. In the circumstance, the suit was rightly commenced. To my mind it is appropriate to commence this action via originating summons. The law has been settled beyond any reproach that where the suit is for interpretation of statute or instrument as in this case or where the facts as disclosed in the affidavits of the parties are not riotous or hostiles as in this case, the case is suitable for determination by originating summons.
74. I should stress here that the defendant in an action commenced by Originating Summons by filing of a counter affidavit does not tantamount to the matter being contentious and hostile. The dispute on facts, which will necessitate finding that a suit was not properly commenced by use of Originating Summons, must be substantial, material and affecting the live issues in the matter. Where the disputes are peripheral and not material to the live issues, an action can be sustained by Originating Summons.
75. In this case, there is no substantial dispute of facts that will warrant the calling of evidence. The claimant is only claiming to be entitled to be paid under an amended law. The determination of whether he is entitled or not to benefit will depend on interpretation of the amended law and this is within the province of the court. It is the court that has the bounden duty of interpreting the law and not the parties in a matter. In the circumstance, I have no doubt in my mind that this suit was properly commenced via originating summons.
76. The areas to which defendants pointed as areas of disputes are as such not in dispute. There are no averments in the counter affidavit disputing the claim of the claimant as being an elected house of Assembly member, there is also no dispute as to claimants having served as Speaker of the Cross River state House of Assembly, there is also no dispute that the claimant had served as Acting Governor of Cross River State at a time.
77. In view of the above finding, the objection of the defendants to the competency of this suit being commenced via Originating Summons fails because the defendants have not established any conflict in the facts of the case or that the suit was not for interpretation of provisions of a statute. The objection is hereby dismissed.
78. I shall now consider the substantive claim of the claimant as per his Originating Summons. In the originating summons the claimants submitted twin questions for resolutions. They are:-
1. Whether by the provisions of section 1(a) and (b) of the Cross River State Gubernatorial Pension Law, 2005 (as amended in 2015), the Claimant, who was Speaker of the Cross River State House of Assembly from 2011 to 2015 and Acting Governor of Cross River State from the 27th day of January, 2012 to February, 2012, is not entitled to the payment of the Pension benefits attached to the office of the Governor of Cross River State?
2. AND if the answer to question No. 1 above is in the affirmative, whether there is any legal basis or justification for the 2nd Defendant to stop the payment of the benefits provided under the Gubernatorial Pension Law of Cross River State to the Claimant?
79. In anticipation of the court resolving the two questions in his favour the claimant sought for seven reliefs from the court. The reliefs have been reproduced in the earlier part of this judgment and they need not to be reproduced here again.
80. Out of the seven reliefs being sought by the claimants two are for declarations. While the remaining five reliefs are ancillary or dependent on grant of the two declarations.
81. The law has been well settled by a plethora of authorities that a party praying for grant of declaratory reliefs must succeed on the strength of his case and not on the weakness of the defence or admission. The burden of proof of declaratory reliefs is very heavy one that a party must convince the court that he is entitled to the reliefs in the fullest sense. The Supreme Court has captured the difficulty of proof of declaratory reliefs in the case of Dumez Nigeria Ltd v. Nwakhoba  LPELR-965(SC), where it was stated thus:
‘‘The law on the requirements of the plaintiff to plead and prove his claims for declaratory reliefs on the evidence called by him without relying on the evidence called by the defendant is indeed well settled. The burden of proof on the plaintiff in establishing Declaratory Reliefs to the satisfaction of the court is quite heavy in the sense that such Declaratory Reliefs are not granted even on admission by the defendant where the plaintiff fails to establish his entitlement to the declaration by his own evidence. In other words, declarations of right as sought by the plaintiffs/respondents in their first relief against the defendant/appellant in the present case, cannot be made on admission or in default of pleading by the defendant not to talk of reliance on the evidence of the defendant witnesses.’’
82. It is trite that a claim for pension is a special damages. Therefore, it must be strictly proved by the claimant. See By 7UP Bottling Company Plc v. Augustus  LPELR-20873(CA), NNPC v. Clifco Nigeria Ltd  LPELR-2022(SC). Where a claimant fails in this test, the claim must fail.
83. Additionally, in Mr Suraju Rufai v. Bureau of Public Enterprises & ors unreported Suit No. NICN/LA/18/2013, the judgment of which was delivered on 4th June 2018, this Court stressed that:
‘‘In labour relations, the burden is on the claimant who claims monetary sums to prove not only the entitlement to the sums, but how he/she came by the quantum of the sums; and proof of entitlement is often by reference to an instrument or document that grants it (Mr. Mohammed Dungus & ors v. ENL Consortium Ltd  60 NLLR (Pt. 208) 39), not the oral testimony of the claimant except if corroborated by some other credible evidence.
84. In fact, Mr Joseph Akinola & ors v. Lafarge Cement WAPCO Nigeria Plc  LPELR-24630(CA) specifically cautions against the reliance on oral evidence as proof of such entitlement.
85. The claimant in this case has specified the quantum of his claim and has particularized same. What remains to be seen is whether there is evidence of proof of entitlement by reference to statutory or any other instrument that entitled the claimant to the claim before the court. The claimant relies on the provisions of section 1(a) and (b) of the Cross River State Gubernatorial Pension Law, 2005 (as amended in 2015), as the instrument that grants him the entitlement to all the reliefs he claims.
86. The facts which the claimant relies in proof of his case are to the effect that on 11/6/2011, the claimant was elected on the floor of the Cross River State House of Assembly as the Honourable Speaker of the House, a position the claimant held till June 2015, when the house stood dissolved when the tenure of the house came to an end. However, following the annulment of the election of the then Governor of Cross River State by the Election Tribunal, the claimant was sworn in as Acting Governor of Cross River State, the position he held from 27/1/2012 to February 2012. A re-run election was conducted by the Independent Electoral Commission (INEC) and Senator Liyel Imoke, the Governor whose election was annulled, emerged winner of the re-rum and he was sworn in as the substantive Governor of Cross River State. Consequently, the claimant reverted back to his position as Speaker of the State House of Assembly till the end of tenure of the House in June 2015.
87. The claimant in reliance on the above stated facts and on section 1(a) and (b) of the amended Cross River State Gubernatorial Pension Law, of 2015, filed this suit to press for payment of pension as a former Governor of Cross River State.
88. The defendants are vehemently opposing the claim of the claimant as per their counter affidavit and the written address filed before the court.
89. The main issue to be resolved is whether the provisions of section 1(a) and (b) of the Cross River State Pension Law, 2005, as amended in 2015, is capable of conferring on the claimant entitlement to pension as Governor of Cross River State for having served as acting Governor from 27/1/2012 to February 2012. The decision of the court will be based on proper interpretation of the relevant provisions of the pension Law and the Constitutional provisions donating the power to the State House of Assembly to enact such Laws.
90. The guiding rules of interpretation of statutes or instrument are well settled by a plethora of authorities. One of the vital canons of the interpretation of statutes or written instruments is to give the plain words of the statute their ordinary natural and literal grammatical meaning, in order to establish the intention of the law maker or framers of the statute or instrument. It is only where the ordinary or literal meaning of the clear and unambiguous words fails to bring out the intention of the lawmaker or leads to an absurdity that resort is had to constructive interpretation. See Dickson v Sylva (2017) 8 NWLR Part 1567 Page 167 at 233 Para D, Per Kekere-Ekun JSC; Registered Trustees of the Airline Operators of Nigeria v Nigerian Airspace Management Agency (2014) 8 NWLR Part 1408 Page 1 at 41 Para B-C; (2015) All FWLR Part 762 Page 1786 at 1812, Amaechi V I.N.E.C (2008) 5 NWLR (Pt. 1080) 227 S.C. This principle also applies in the interpretation of the Constitution. The well laid down position for the interpretation of the Constitution is that once the words used are clear and free from ambiguity they should be given their natural meaning without any embellishments. Provisions of the Constitution must always be interpreted to achieve the obvious ends for which the Constitution was promulgated. See Assams v Ararume (2016) 1 NWLR Part 1493 Page 368 at 387 Para A-C; (2016) All FWLR Part 821 Page 1481 at 1492 Para F-G, per Rhodes-Vivour JSC.
91. Where an interpretation will result in breaching the object of the statute, the Court will not lend its weight to such an interpretation, see Dickson v Sylva (2017) 8 NWLR (Part.1567) Page 167 at 233 Para E per Kekere-Ekun JSC. However, where there is a gap, duplicity or ambiguity, or where the words of an enactment are capable of two meanings, a contextual, rather than a literal approach should be preferred, as it is the duty of the Court to give a meaning that will resonate with sense, order and a workable system. In so doing, the provisions of a statute must not be read in isolation, but the whole, to ascertain the true meaning of the statutes. See Buhari v Obasanjo (2005) All FWLR Part 273 Page 1 at 189 Para C-D per Pats-Acholonu JSC; Braithwaite v GDM (1998) 7 NWLR Part 557 Page 307 at 325 Para C-D per Ayoola JCA (as he then was); Akpamgbo-Okadigbo v Chidi No. 1 (2015) 10 NWLR Part 1466 Page 171 at 199 Para A-B per M.D. Muhammad JSC. It is equally vital to read all the integrated and interrelated statutory and constitutional provisions under consideration together, not in isolation or by instalment. See A-G, Benue State v. Umar (2008) 1 NWLR (pt. 1068) 311. Dimegwu v. Ogunewe (2008) 17 NWLR (pt. 1116) 358. Chime v. Ude (1996) 7 NWLR (pt. 461) 379. The Registered Trustees ETC v. Medical Health Workers Union of Nigeria & Ors. (2008) 1 SCNJ 348 and Inajoku v. Adeleke (2007) 1. SCNJ 1.
92. It is in line with the above well laid down principles of interpretation of statute and constitution, that I shall consider the provisions of the Cross River State Gubernatorial Pension Law and the relevant provisions of the Constitution of the Federal Republic of Nigeria, 1999, as amended, it is by so doing that the court will be able to reach a just decision of the questions posed for resolution in this Originating Summons.
93. It is apt at this point to reproduce the provisions of section 1(a) and (b) of the Cross River State Gubernatorial Pension (amendment), Law 2015, it provides:-
1. The Cross River State Gubernatorial Pension Law 2005 (hereinafter referred to as the ‘’Principal Law’’) is hereby amended as follows:-
(a) Delete the long title and substitute therefore the following long title as follows:-
Long Title’’ A law to provide a Pension to any person who has held office as a governor, Deputy Governor, Speaker or Deputy Speaker in Cross River state and for matters connected therewith.
(b) Add immediately after Section 3 of the Principal Law a new Section 4 as follows:-
‘’Pension for speaker and Deputy Speaker. A Speaker or Deputy Speaker of the cross river state House of assembly shall be entitled to the pension granted by Section .. of the Principal Law where he has served as Speaker for a period of not less than 2/3 of his tenure of office except the person ceases to hold office at any time on the grounds specified in section 92 of the Constitution or he is removed from office pursuant to section 107 of the Constitution’’.
(c) Delete Section 4 of the Principal Law and substitute therein the following new Section 5 as follows:-
Interpretation 5. ‘’In this Law unless the context otherwise requires:-
‘Governor or Deputy Governor’’ means Governor, Deputy Governor or Acting Governor of Cross River state’’.
94. According to the claimant the above definition is what brings the claimant within the purview of former Governor and therefore entitled to be paid the pension benefits equivalent to that of a former Governor, as provided for in the law.
95. It is pertinent to point out here that the Cross River State House of Assembly, that enacted the Cross River State Gubernatorial Pension Law 2005 as amended in 2015, derives its power in the enactment of the provisions of the Gubernatorial Pension Law from the provisions of section 124(5) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. Section 124(5) of the 1999 Constitution which donated the power to the States Assemblies to make laws on pension of Governors and Deputy Governors provides thus:
‘‘Provisions may be made by a Law of a House of Assembly for the grant of a pension or gratuity to or in respect of a person who has held office as Governor or Deputy Governor and was not removed from office as a result of impeachment or breach of any provision of the Constitution; and any pension or gratuity granted by virtue of any provision made in pursuance of this sub-section shall be a charge upon the Consolidated Revenue Fund of the State.’’
96. The defendants have insisted that the provisions of the Cross River State Gubernatorial Pension (amendment) Law 2015, is null and void for including the Acting Governor of State as one of the persons to benefit from payment of Pension as a Governor. According to the defendants the Acting Governor only fill a void and he reverted back to his position as Speaker and end his Tenure as a Speaker and not as a Governor to make him to be entitled to payment of pension as a Governor.
97. The claimant in response insisted that the provisions of section 1(a) & (b) and section 5 on interpretation of the Cross River Gubernatorial Pension Law 2015, is clear and unambiguous and should be accorded ordinary literal interpretation.
98. The parties herein have joined issues with respect to the validity of the Cross River State Gubernatorial Pension Law, as amended in 2015. Generally a Law enacted either by the National Assembly or by a State House of Assembly like in the case at hand must be consistent with the grundnorm i.e the Constitution, as amended, otherwise it will run contrary to the consistency doctrine of law with respect to Constitution and in the event of any conflict, the law will give way to the Constitution.
99. As pointed out earlier the Cross River State House of Assembly was donated power of making or enacting Pension Law by section 124(5) (supra). This means that in exercising the power donated to it the House of Assembly must act within the purview of the provisions of section 124(5) of the Constitution that donated power of making the law. This means any deviation from the tenor and intendment of the provisions of section 124(5) (supra) will be an exercise in futility. See Bamgboye V University of Ilorin (2009) LPELR-(SC). OBIUWEUBI V. CBN (2011) 7 NWLR (Pt.1247) 465 at 495 - 496
100. In National Union of Electricity Employees & Anr. V. Bureau of Public Enterprises (2010) LPELR 966 (SC), it was held thus: "It is trite law that under the consistency test that the validity of any law is determined by its consistency with the provisions of the Supreme Law, that is, the Constitution. So that where any law is inconsistent with any provisions of the Constitution, such other law shall to the extent of the inconsistency be void. In support of this proposition see Military Governor of Ondo State V. Adewunmi (1988) 3 NWLR (Pt. 82) 280. Also, see Section 1 (3) of the 1999 Constitution and also Adisa v. Oyinwola (supra) and Attorney General of Ondo State V. Attorney General of the Federation & Ors. (2002) 9 NWLR (Pt.772) 222 per Uwaifo JSC.
101. This means that the power of the legislature to make law is circumscribed by the Constitution, meaning that where there is conflict in between Constitution and law made by House of Assembly the law enacted by the House of Assembly in excess of its power must give way to the provisions of the Constitution to the extent of the inconsistency.
102. I have scrutinized the provisions of section 124(5) of the Constitution of the Federal Republic of Nigeria 1999, as amended and I am satisfied that the said provisions of the constitution did confer on the Cross River State House of Assembly power to enact a law to make provisions for grant of pension to the Governor and Deputy Governor of the State. However, there is no equivalent power in section 124(5) of the constitution for making provision for pension for the Acting Governor of the State or the Speaker of the House of Assembly of the State. This means that the Gubernatorial Pension Law amendment of 2015, which came into force on 19/5/2015, that was made with the sole aim of making provisions for payment of pension to Acting Governor and Speaker and Deputy Speaker was made without vires. The said amendment having been made without the requisite power is null and void and of no effect whatsoever.
103. The provisions of section 318 of the Constitution of the Federal Republic of Nigeria 1999, as amended clearly and in unequivocal terms defined ‘Governor’ or ‘Deputy Governor’ to mean the Governor of a State or a Deputy Governor of a state’. And there was no mention of Acting governor or Speaker of the House of Assembly or his Deputy.
104. The Constitution of the Federal Republic of Nigeria, 1999, as amended has also left no one in doubt as to who is a Governor or Deputy Governor of a state. This can be found in the provisions of sections 176, 178, 179 and 180 of the Constitution of the Federal Republic of Nigeria, 1999, as amended. The combined effect of these constitutional provisions will revealed that an acting Governor is not a Governor for the purpose of provisions of section 124(5) and 318 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, likewise the Speaker or his Deputy are equally not Governor or Deputy Governor in the real sense, so they are never contemplated by the Constitution to be meant to benefit from pension provided by Section 124(5) of the Constitution of the Federal Republic of Nigeria, 1999, as amended.
105. The above position taken by me is further supported by the facts that the tenure of a Governor is four years commencing from the date of taking of oath of office. However, where there is a re-run like in the case at hand that necessitated the claimant to serve as Acting Governor for 32 days, in determining the four year terms of a Governor, where a re-run election has taken place like in the case at hand, the candidate that won the re-run had taken oath of office but his election was annulled the terms of four years will start to count on the date he first took oath of office and not from the date he took oath of office after re-run. The time spent in office before the date the election was annulled shall be taken into account. See sub-section (2A) of section 180 of the Constitution of the Federal Republic of Nigeria 1999, as amended. This provision has clearly established that the period of acting is computed as part and parcel of the period for the tenure of the Governor that won the re-run election and was sworn after the re-run. It also means the period which the claimant served is not accounted to the credit of the claimant but to the credit of the person that served as the Governor. With this exposition I am tended to quite agree with the defendants that if pension is granted to the claimant as a Governor it means two Governors existed at the same time.
106. In view of the foregoing, by using the holistic mode of interpretation by considering the integrated and interrelated provisions of the pension law and those of the constitution, the House of Assembly does not have the vires to make provisions for acting Governor. This is because the provisions of the constitution that donated the power to enact pension law clearly exclude Acting Governor or Speaker of the House of assembly or his Deputy. It is trite that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication with regard to the same issue. See the case of EHUWA V. O.S.I.E.C. (2006) 10 NWLR (PT.1012) 544 where the apex Court held: "It is now firmly established that in the construction of a Statutory provision, where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included. The latin maxim is 'Expressio unius est exclusio alterius' - i.e. the expression of one thing is the exclusion of another. The framers of the constitution having expressly excluded Acting Governor in section 124(%) of the Constitution, the House of Assembly does not have the power to include Acting Governor in the pension Law of the Governors and Deputy Governors.
107. If on appeal, the 2015 amendment of the Pension Law, is found to be valid, which I do not think so, I still maintain that the claimant cannot benefit from the provisions of the 2015 amendment for the simple reason that the law was amended after the claimant has served as acting Governor and has reverted back to his position as a Speaker of the state House of Assembly and his tenure ended as a Speaker in June 2015.
108. From the facts of this case which are not in dispute, the claimant served as Acting Governor of Cross River state from 27/1/2012 to February 2012, when the winner of the re-run election assumed duty as a substantive Governor of Cross River State. This means that the claimant’s cause of action respecting serving as Acting Governor arose in February 2012. It is settled by long chain of decided cases that the law applicable to a case or action is the law in force when the cause of action arose and not the law applicable when the action on the cause of action is instituted.
109. In the case at hand, the Pension Law applicable in Cross River State as at February 2012 is the Gubernatorial Pension Law 2005 and not the amended law as at 2015. It has been settled beyond any reproach that the relevant law applicable in respect of a cause or matter is the law in force at the time the cause of action arose and in the case of the law relating to jurisdiction when the action was instituted. See Uwaifo v. Attorney General of Bendel State (1982) 7 SC 124; (1983) 4 NCLR 1; Attorney General of Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552, UTIH & ORS V. ONOYIVWE & ORS (1991) LPELR-3436(SC).
110. In OBIUWEUBI V. CBN (2011) 7 NWLR (Pt.1247) 465 at 495 – 496, the Supreme Court per Rhodes-Vivour, JSC held thus; The law in force or existing at the time a cause of action arose is the law applicable for determining the case. This does not necessarily determine the jurisdiction of the Court at the time that jurisdiction is invoked. That is to say the law in force at the time a cause of action arose governs the determination of the suit, while the law in force at the time of the trial based on cause of action determines the Court vested with jurisdiction to try the case."
111. Albeit, the legislature in regards to civil matters has unfettered power to make or enact legislation retroactively. Never the less, it is well settled principle of law that an Act of Parliament cannot be construed as having retroactive effect unless there are express words in the enactment showing such an intention. This is based on the presumption that the legislature does not intend what is unjust. Statutes are construed as operating only in cases or on facts which came into existence after the statutes were passed unless a retroactive effect is clearly intended. See OJOKOLOBO v. ALAMU (2004) ALL FWLR (PT.237) 579 at 620, Afolabi v. Governor, Oyo State (1985) 2 NWLR (Pt.9) 734 at 752-753 per Aniagolu J.S.C."
112. The general principle in regard to retrospective operation of statutes, is based on the presumption that the legislature does not intend what is unjust and therefore the Courts lean against giving certain statutes retrospective operation. They are construed as operating only in cases or on facts which come into existence after the statutes were passed unless a retrospective effect is clearly intended:
"In Afolabi v. Governor of Oyo State (supra), Eso J.S.C. said at page 768: "In my view, the law has always been that unless a contrary intention is expressed, there is a presumption that an enactment has no retrospective operation. The principle is 'lexprospicit non respicit' that is the law looks forward and not back.
113. The general principle of law against retrospective effect of statute is in accords with commonsense, for retrospective is entirely artificial. It is a cardinal principle of our law that a statute operates prospectively and cannot apply retrospectively unless it is made to do so by clear and express terms or it only affects purely procedural matters and does not affect the rights of the parties. The provisions of statutes are generally meant to apply to future events unless the provisions expressly and unambiguously stated that they are retrospective. See Afolabi v. Governor of Oyo State (1985) 2 NWLR (Pt.9) 734 at 752 and Ibrahim v. Barde (1996) 9 NWLR (Pt.474) 513. It is a fundamental rule of English law that no statute shall be construed so as to have a retrospective operation unless its language is such as plainly to require such construction; and the same rule involves another and subordinate rule to the effect that a statute is not to be construed so as to have greater retrospective effect than its language renders necessary.
114. In applying the above principles of law, to the facts of the case, it will be right to state that the claimant who had his cause of action materialized in February 2012, at the end of his acting, can only institute an action to claim pension for Acting Governor for a law in operation as at February 2012, however, as pointed out earlier as at February 2012, the claimant does not have right to claim pension as such right does not exist. Therefore, it will be wrong for claimant to now approach the court for redress on an amended law not in force when his cause of action arose in February 2012. The change in the law is clearly no comfort to a claimant whose injury arose in February 2012, when the Pension Law in force as at then was the 2005 Pension and not the amendment made in 2015, which was not in existence as at February 2012, when the claimant’s cause of action accrued. See A-G. Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552. If there was no cause of action, a subsequent alteration of the law cannot supply the incurable legal deficiency.
115. The case of the claimant to make claim under the 2015 amendment was made worst when section 2 of the amendment clearly stated the commencement date to be 19/5/2015 and as at 19/5/2015 the claimant was not Acting governor of Cross River State. This has established that even if Acting Governors are to benefit from the amendment the claimant has been excluded by the date of commencement of the amended Pension Law. If the law makers have intended the law to be retrospective they would have stated so, in unambiguous terms. By fixing commencement date of the amendment to be 19/5/2015, the law was never intended to have retrospective effect. This means the presumption against retroactive laws stands unshaken for lack of evidence in rebuttal.
116. The claimant would have been able to claim as Speaker because his tenure ended in June 2015 after the coming into force of the 2015 amendment, alas this court has found that the 2015 law was enacted without vires, he cannot as well claim under a null and void law made without requisite power to do so.
117. In view of the foregoing, the claimant in this case does not have a valid cause of action to enforce as there is no law to aid him in his quest to enjoy the benefit granted to Governor upon expiration of his tenure. This is because it is a fundamental principle of interpretation of statutes that unless there is express provision therein, or a clear intention that the provision shall operate retrospectively, there is a presumption against retroactive legislation. There is a presumption against retroactivity - See University of lbadan v. Adamolekun (1967) 1 All NLR 213; Ige v. Obiwale (1967) 1 All NLR 276.
118. For avoidance of doubt the claimant has failed woefully to prove entitlement to any of the reliefs sought. The case is lacking in merit same is hereby dismissed.
119. I make no order as to cost.
120. Judgment entered accordingly.
Mba E. Ukweni, SAN for the claimant appearing with A. T. Actus, Esq; Chief O. A. Akpeke, Esq; U. O. Igwenyi, Esq; and I. J. Undiandeye, Esq;
Ama Ekpo, Esq; Deputy Director, Ministry of Justice Calabar, for the defendants, appearing with T. O. Inyamba, Esq; State Counsel 2, Ministry of Justice, Cross River State.