| IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA ———————————————————————————————————————————————————————————————————————- Suit No: NICN/EN/70/2012 Petitioner: Hon. Oyibo Nwaneri And Respondent: Imo State Government Date Delivered: 2017-07-03 Judge(s): HONOURABLE JUSTICE O. Y. ANUWE Judgment Delivered Representation: K. I. Uduma esq. for the Claimant J. C. Ibe esq., Assistant Director Civil Litigation, Imo State Ministry of Justice, with C. O. Chukwumezie esq., Senior State Counsel and J. C. Mbata esq., State Counsel, for the 1st to 4th Defendants JUDGMENT The Claimant commenced this suit by way of a Complaint filed on the 3rd day of May 2012. By an order of this honourable Court sitting at Enugu on the 19th day of February 2013, the 5th Defendant was joined as a party to this suit. By an amended Complaint filed on the 11th day of March 2013, the Claimant claimed against the Defendants as follows: 1. The sum of N12,014,595.00 (Twelve Million, Fourteen Thousand, Five Hundred and Ninety-Five Naira) being unpaid severance gratuity, accommodation and security allowances due and payable to the Claimant from the Defendants as member of the Imo State House of Assembly between May 2007 and June 2011 which the Defendants have failed, refused and or neglected to pay despite repeated demands. 2. Interest on the aforesaid at the rate of 10% per annum from the date of the judgment until the judgment debt is liquidated. The complaint was filed along with an Affidavit in verification of the endorsement therein, the Statement of Facts, Claimant’s List of Witnesses, Sworn Deposition of Claimant’s witness, Claimant’s List of Documents and Copies of Documents to be relied on. The 1st – 4th Defendants, on the 16th day of April 2013 vide a motion for extension of time, filed a Statement of Defence and other accompanying processes. The 5th Defendant did not file any defence to this suit. Hearing commenced on the 28th day of June 2016. The Claimant testified for himself as CW1 and Onwuneme Chamberlain Uchenna testified for the 1st to 4th Defendants as DW1. Hearing ended on the 24th day of February 2017. Parties were ordered to file their final written addresses in accordance with the Rules of Court. The Claimant’s final address was filed on the 21st day of April 2017 while the Defendants’ final address was filed on the 8th day of May 2017. These were duly regularized and parties adopted their final written addresses on the 24th day of May 2017. In the Claimant’s final address, one issue was formulated for determination, to wit: Whether the Claimant is entitled to the reliefs sought in this suit. Learned counsel for the Claimant argued that the 1st to 4th Defendants by their pleadings admitted paragraphs 1 to 8 of the Claimant’s statement of facts but the 5th Defendant did not file any Statement of Defence. It is counsel’s argument, citing the cases of NEPA vs. Adegbenro (2003) FWLR (Pt. 139) 1556 and INEC vs. A.C. (2009) All FWLR (Pt. 480) 732 at 803; that the 5th Defendant’s failure to file pleadings and defend this suit, means that all the averments in the Statement of Facts, and evidence of the Claimant are deemed admitted. Similarly, counsel submitted that the 1st – 4th Defendants, having admitted paragraphs 1-8 of the Statement of Facts, no further proof is required, referring to the case of Oguanuhu vs. Chiegboka (2013) 6 NWLR (Pt. 1351) 588 at 607-8 and Section 123 of the Evidence Act. More so, counsel argued that it is undisputed between the parties in this case, that the Claimant served as a member of the Imo State House of Assembly between May 2007 and June 2011, and the Revenue Mobilization Allocation and Fiscal Commission in February 2007 fixed the remuneration package for political, public and judicial office holders in Nigeria. Again, counsel submitted that the Claimant tendering documents in evidence in proof of his claim, made the Claimant’s oral testimony more credible citing the case of Okunta vs. Odeyh (2015) All FWLR (Pt. 764) 136 at 146. Further, counsel contended that the Claimant in adherence to Section 131 of the Evidence Act; has discharged the burden of proving that the Claimant is entitled to the ums of N1,337,225.00 as annual basic salary, N1,002,918.75 as accommodation allowance, being 75% of annual basic salary; N4,011,675.00 as severance gratuity being 300% of annual basic salary, N7,000,000.00 being security allowance; monies that have remained unpaid in spite of the Claimant solicitor’s letter of 28/11/2011 demanding payment. It is counsel’s submission citing Section 133 of the Evidence Act that the evidential burden of proof has shifted to the Defendants who alleged that the Claimant is not entitled to his reliefs. Similarly, counsel argued that the burden of proof in civil cases is not static, the proof or rebuttal of issues may tilt the burden from the Claimant to the Defendant and vice versa, citing A.G. Kwara State vs. Olawale (1993) 1 NWLR (Pt. 272) 645. It is counsel’s further argument that from the Claimant’s evidence and the 1st – 4th Defendants’ mere denial of same; the rebuttal of the Claimant’s reliefs now rests with the Defendants. Also, counsel submitted that from the evidence of DW1 elicited during cross-examination, the 1st – 4th Defendants acknowledged that the Claimant has not been paid her allowances and gratuity, and it is the 1st Defendant’s responsibility to pay members of the Imo State House of Assembly. Again, it is counsel’s submission that the DW1 tried to exclude the Claimant from the membership of the Imo State House of Assembly who is entitled to be paid entitlements, after the Paragraph 2 of the Statement of Defence had admitted that the Claimant was a member of the Imo State House of Assembly. Thus, counsel asserted that DW1 cannot reprobate and approbate at the same time because a Defendant cannot retract his admission of a specific fact pleaded by the Claimant, having admitted the fact, the Defendants are bound by it and the court is justified in acting on it. Counsel cited the cases of Adeye vs. Adesanya (2001) 6 NWLR (Pt. 708) 1, and Ajuwon vs. Akanni (1993) 9 NWLR (Pt. 316) 182. Further, counsel argued that the burden of proof on the Defendants has not been discharged by a mere denial, especially in view of the fact that the Defendants have not adduced any credible evidence in rebuttal of the Claimant’s claim. Counsel urged the court to accept the Claimant’s unchallenged evidence on the strength of Iyere vs. Bendel Feeds and Flour Mill Ltd (2009) All FWLR (Pt. 453) 1217 and Oyeniyi vs. Adeleke (2009) All FWLR (Pt. 476) 1902. Counsel urged the court to hold that the Claimant is entitled to his claim and grant the reliefs in the Statement of Facts. Learned counsel for the 1st – 4th Defendants identified three issues for determination in her final address, as follows: 1. Whether Exhibit B and D tendered by the Claimant met the requirement of the law for its admission as an exhibit. 2. Whether the Claimant is entitled to the reliefs sought. 3. Whether the Final Written Address of the Claimant as filed is not grossly incompetent. Arguing the first issue, counsel stated that Exhibit B (Revenue Mobilization Allocation and Fiscal Commission’s Remuneration Package for Political, Public and Judicial Office Holders in Nigeria, February 2007) is inadmissible because a ground that determines the admissibility of a document is that it meets the prerequisite upon fulfilling any condition precedent to the exercise of the court’s jurisdiction, citing Madukolu vs. Nkemdilim (1962) 2 SCNLR 341. Further, counsel contended that the Revenue Mobilization Allocation and Fiscal Commission is a Federal Government agency, and documentations of Government policies are usually gazetted with correspondences and documents emanating from arms of government are usually on the letter head of the agency. It is counsel’s contention that Exhibit B that purports to be a public document is not signed by the appropriate officers, not on the letter head of the commission, and no payment of legal fees as required by Section 111(1) of the Evidence Act. Also, counsel submitted that I. K. Nuhu is not competent to certify Exhibit B because the original of Exhibit B is not in his custody, and the certification done on the document does not satisfy the conditions set out in Section 104 of the Evidence Act as no stamp of the commission is affixed or evidence of payment attached. See Tabik Ivestment Ltd vs. GTB Plc (2011) All FWLR (Pt. 602) 1592. Regarding Exhibit D, counsel is of the opinion that the proper foundation was not laid before tendering it because before the photocopy of a document is tendered, the foundation of the whereabouts of the original must be laid. Counsel submitted citing FGN vs. Zebra Energy Ltd (2003) FWLR 154, that if a law requires the fulfillment of a condition for the validity of an act, failure to comply with the condition makes the act a nullity. Again, counsel submitted that having not complied with the relevant Sections 104 and 111 of the Evidence Act; she urged the court to reject the Exhibits B and D for being incompetent. With respect to issue two, counsel contended that the Claimant is not entitled to any sum of money alleged because it is not the responsibility of the 1st – 4th Defendants but the Imo House of Assembly where the Claimant served. Again, counsel submitted that Exhibit B being relied upon by the Claimant does not provide for security allowance claimed by the Claimant. On this note, counsel referred the court to Page 36 of Exhibit B and submitted further that the documentary evidence cannot be said to have supported the oral evidence of the Claimant. More so, counsel argued that Sections 135 – 137 of the Evidence Act fixes the burden of proof on the Claimant in the extant case. Counsel referred the court to the case of Sokoto Furniture Factory Ltd vs. Societe Generale Bank Ltd (2003) FWLR (Pt. 186) 693 at 706, where it was held that the onus of proof is on the Plaintiff being the party who will lose if no further evidence is tendered in court. Similarly, counsel argued that the Claimant is not entitled to the reliefs sought in Exhibit B, which has been amended in the Revenue Mobilization Review Circular 2009. Counsel referred the court to Table B of the 2009 Circular where security is provided in terms of security services and not money. Again, counsel indicated that there was a reduction of the accommodation, severance allowance and severance gratuity by 15-20%, 100% respectively. Further, counsel submitted that the Revenue Mobilization Review Circular 2009 is a subsidiary legislation made by the Revenue Mobilization and Fiscal Commission, a body vested with powers to make same; and the court is required to take judicial notice of it, citing NNPC vs. Famfu Oil Ltd (2012) All FWLR (Pt. 635) 204. Counsel submitted, citing Sylvester vs. Ohiakwu (2014) 5 NWLR (Pt. 1041) 467 at 475, that upon the repeal of Exhibit B, it is no longer applicable and ceases to exist. It is counsel’s submission that Sections 70, 84, 111, 124 and Paragraph 31 of the 3rd Schedule to the 1999 Constitution (as amended) empowers the Revenue Mobilization and Fiscal Commission to regulate the salaries and allowances of public office holders, and it was in exercise of this power that a subsidiary legislation: Revised Remuneration Package for Political, Public and Judicial Officers (States and Local Government Legislation vol. 4) June 2009 was issued. Counsel is of the view that by virtue of Section 122(2) of the Evidence Act and the holding in Adene vs. Dantunbu (1994) 2 NWLR (Pt. 328), a subsidiary legislation has the force of law, and the court is obligated to take judicial notice of it, irrespective of the fact that the Revised Remuneration Package Review Circular 2009 was not tendered in evidence. Further, counsel argued that as per the deposition of DW1 and the evidence of CW1 under cross-examination, Section 120 of the 1999 Constitution (as amended) makes the Imo House of Assembly an independent body with finances under the consolidated funds, which pays the salaries and allowances of its members. Also, it is counsel’s argument relying on Mogaji vs. Odofin Bello (1978) 3 SC 91, that the executive arm of Government does not control the money for the House of Assembly, and cannot be responsible for the payment of House of Assembly members because that runs contrary to the doctrine of separation of powers. Counsel submitted that the DW1 did not contradict himself to amount to an admission against self, in that DW1’s evidence agrees with the fact that the Claimant is owed, and if the Claimant is owed, the Defendants in this case are not responsible for such payment. Finally, counsel urged the court to hold that the Claimant has failed to prove his case and is not entitled to the reliefs sought. On issue three, Counsel submitted that the final written address of the Claimant as filed is grossly incompetent as it does not bear the current stamp of counsel who filed the process. By the authority of YAKI vs. BAGUDU (2015) 18 NWLR (Pt. 1491) 288 and Rule 10 of the Rules of Professional Conduct 2007, all Legal Practitioners are required to affix their stamp and seal approved by the Nigerian bar Association on all legal documents and court processes. In the instant case, the Claimant Counsel had affixed an expired stamp, thus rendering the process incompetent and invalid. Counsel urged the court to so hold, and to resolve all the issues raised, in favour of the 1st to 4th Defendants. COURT’s DECISION I have carefully examined the claims of the Claimant and I have also heard the submissions of the counsels to the parties in their respective final written addresses. In my view, the issue which this court is to determine in this matter is whether the Claimant has proved her case as to entitle her to the reliefs she sought in the suit. To determine this issue, I will have to briefly review the facts and evidence presented before the court by the parties. The Claimant claims the sum of N12,014,595.00 from the Defendants which sum she said represents unpaid severance gratuity, accommodation and security allowances due to her as a member of the Imo State House of Assembly between May 2007 and June 2011 but which the Defendants have refused to pay to her. In her evidence, the Claimant told the court that she was elected a member of the Imo State House of Assembly on 14th April 2007 to represent Oru East State Constituency and on 20th April 2007, the Independent National Electoral Commission issued her a certificate of return. She served as a member of the Imo State House of Assembly from May 2007 to June 2011. In February 2007, the Revenue Mobilization Allocation and Fiscal Commission (RMAFC) fixed the remuneration package for political, public and judicial office holders in Nigeria. By virtue of the reviewed remuneration package as determined by RMAFC, she was entitled to be paid the following sums: N1,337,225.00 as annual basic salary; 75% of the annual basic salary, amounting to N1,002,918.75, as annual accommodation allowance; and 300% of her annual basic salary, amounting to N4,011,675.00 as severance gratuity. The Claimant also averred that as a member of the Imo State House of Assembly, she was also entitled to the sum of N7,000,000.00 as security allowance which payment was captured in the 2011 Appropriation Law of Imo State. The total sum outstanding and due to be paid to her is N12,014,595.00 which the Defendants have refused to pay to her despite repeated demands. Admitted in evidence from the Claimant are the INEC certificate of return, 2007 RMAFC Remuneration package, the Claimant’s solicitor’s letter of demand to the 3rd Defendant and the 3rd Defendant’s reply. These are Exhibits A, B, C and D respectively. Only the 1st to 4th Defendants presented a defence to the action. The 5th Defendant did not defend the suit. DW1, Uche Onwuneme, who testified for the 1st to 4th Defendants stated that he is the Principal Litigation Officer in the Imo State House of Assembly. From the records of the Imo State House of Assembly, the Claimant was a former member of the Assembly. The salary, allowances and gratuity of the Claimant was not fixed by the RMAFC and no percentage of the Claimant’s claims is mentioned and no amount is provided in the circular from RMAFC. The Imo State House of Assembly is responsible for the monies claimed by the Claimant and not the 1st to 4th Defendants. The Claimant is not entitled to her claim for security allowance and severance. In the remuneration package, security is to be provided and not payable in cash. Before I proceed to determine the issue I have identified for resolution in this case, let me address the objection of the counsel to the 1st to 4th Defendants to the admissibility of the documents marked Exhibits B and D. When the Claimant sought to tender the documents in evidence, the Counsel to the 1st to 4th Defendants objected to the admissibility of the documents. While arguments on the admissibility of Exhibit D was taken in court, leave was granted to counsels to argue the objection to Exhibit B in the final written address. In the final written address, the counsel to the 1st and 4th Defendants urged the court to expunge Exhibit B on the following grounds: It is not on the letter head of RMAFC; it is not signed by the appropriate officer, that is, not signed by the Chairman of the Commission, Engr. Hamman Tukur; no payment of legal fee as required in Section 111 of the Evidence Act and it is not certified at the foot as required in Section 104 of the Evidence Act; There is no legal department in RMAFC and that the head of legal department is not signatory to the document; the document was not produced from proper custody and has a doubtful origin and authenticity. On an examination of the said document, it is observed that it is headed “REVENUE MOBILIZATION ALLOCATION AND FISCAL COMMISION, ABUJA― and titled “REMUNERATION PACKAGE FOR POLITICAL, PUBLIC AND JUDICIAL OFFICE HOLDERS IN NIGERIA, VOLUME II. THE REVIEWED REMUNERATION PACKAGE FOR THE LEGISLATURE AT THE FEDERAL, STATE AND LOCAL GOVERNMENT LEVELS―. The date stated on the face is FEBRUARY 2007. It is also indicated on it to be a “CERTIFIED TRUE COPY―. The name of the certifying officer is I. K. NUHU with his signature, designation as Head of Legal and dated 27/3/12 as date of certification. The document is clearly headed to show it emanated from the RMAFC. There is also a list of the Commissioners of the RMAFC where they signed including the secretary of the RMAFC. The fact that not all the commissioners signed it does not make the document inadmissible. I am also satisfied that it is certified by an officer of the Commission in accordance with the provisions of the Evidence Act. The Claimant pleaded the 2007 reviewed remuneration package of RMAFC in paragraph 8 of the statement of fact. The facts in this paragraph were admitted by the 1st to 4th Defendants in paragraph 1 of their statement defence. Again, in paragraph 10 of the statement of defence, the 1st to 4th Defendants pleaded thus: “The defendants will rely on the document called Remuneration Package for Political, Public and Judicial Office Holders already pleaded by the claimant―. Exhibit B is that document pleaded by the Claimants which the Defendants also rely on. Aside from relying on Exhibit B pleaded by the Claimants, the Defendants did not tender any other remuneration package by RMAFC different from what the Claimant has tendered. I do not therefore see any basis for alleging that Exhibit B is not authentic or that it has a doubtful origin. The grounds of the objection are quite frivolous. I overrule counsel’s objection to the admissibility of Exhibit B. I find the document, which is pleaded, to be relevant and admissible. Counsel to the 1st to 4th Defendants went further to argue in the final written address that Exhibit D is not admissible in evidence as proper foundation was not laid before it was tendered in evidence. I recall that the Defendants counsel made the same arguments on 28/4/2016 when the document was tendered in evidence. Arguments were taken from counsels to the parties on the admissibility of the document. This court overruled the objection of counsel to the 1st to 4th Defendants and admitted the document in evidence. By raising the same objection again in the final address, counsel is attempting to have this court overrule itself or review its ruling of 28/4/2016. I should believe counsel is aware that this court has no jurisdiction to do so. The 1st to 4th Defendants may wish to challenge that ruling on appeal. I hold that the document is properly admitted in evidence. I will now go into the main issue. Let me first observe that the 1st to 4th Defendants, in paragraph 1 of their statement of defence admitted the averments of the Claimant in paragraphs 2, 3, 4, 5, 6, 7 and 8 of the statement of facts. The facts so admitted include the fact that the Claimant was elected a member of the Imo State House of Assembly and she served as a member of the Imo State House of Assembly from May 2007 to June 2011. In February 2007, the Revenue Mobilization and Fiscal Commission fixed the remuneration package for political, public and judicial office holders in Nigeria in a reviewed remuneration package released in February 2007. It is thereof not in dispute that the Claimant was a member of the Imo State House of Assembly from May 2007 to June 2011. It also not in dispute that the remuneration package for political, public and judicial office holders in Nigeria is as determined by RMAFC and contained in the 2007 package which document is in evidence as Exhibit B. The total sum claimed from the Defendants is N12,014,595.00 which the Claimant said was due to her as a member of the Imo State House of Assembly. According to the Claimant, the sum is comprised as follows: N1,002,918.75 as accommodation allowance being 75% of his annual basic salary, N4,011,675.00 as severance gratuity being 300% of his annual basic salary and N7,000,000.00 as security allowance. From his evidence, she is entitled to the payments by virtue of Exhibit B and the 2011 Appropriation Law of Imo State. In paragraphs 4 and 5 of the statement of defence, the 1st to 4th Defendants averred that the Claimant’s salary, allowances and gratuity was not fixed by the RMAFC nor did the RMAFC remuneration package provide any amount payable to the Claimant. The import of these averments of the 1st to 4th Defendants is that the salary and allowances of the claimant as a member of the Imo State House of Assembly was not as determined and fixed by the RMAFC. The Defendants however failed to mention the body which prescribes the salaries and allowances of members of the Imo State House of Assembly. The body constitutionally recognized to determine and fix remunerations and allowances payable to political and public office holders in Nigeria is the RMAFC. To that extent, Section 111 of the 1999 Constitution (as amended) provides that “a member of the House of Assembly shall receive such salary and other allowances as the Revenue Mobilization, Allocation and Fiscal Commission may determine―. See also Section 32 (d) of Part One of the 2nd Schedule of the 1999 Constitution which provides that the power to determine the remuneration appropriate for political office holders, which include legislators, is that of the RMAFC. It was pursuant to that responsibility the RMAFC released Exhibit B in 2007. The document contains a review of the remuneration package for political, public and judicial office holders in Nigeria. The remuneration package for members of the States Houses of Assembly is included. The Defendants counsel did also argue that the Claimant is not entitled to the claims sought on the basis of Exhibit B because Exhibit B has been amended in a review circular of 2009 which counsel urged this court to take judicial notice of as it is a subsidiary legislation. Counsel further submitted that having been reviewed, the 2007 circular is no longer in existence and the Claimant cannot found her claim on it. I have examined the pleading and evidence adduced by the Defendants but I find that there is no where they pleaded or mentioned the said review circular of 2009. No fact relating to it was averred in the statement of defence. In fact, the defence of the claim did not contemplate the said review circular of 2009. By their pleading in paragraph 1 of the statement of defence, the 1st to 4th Defendants admitted the Claimant’s pleading in paragraph 8 of the statement of facts where the Claimant pleaded Exhibit B released in February 2007 as the document in which the RMAFC fixed the remuneration package for political, public and judicial office holders. In paragraphs 6 and 10 of the statement of defence, the Defendants relied on the content of Exhibit B in defence of the claim. That is to say the document which the parties’ pleadings contemplated for the determination of the Claimant’s claim is Exhibit B. The counsel for the 1st to 4th Defendants’ reliance on the review circular of 2009 in the final address to argue that the Claimant cannot claim under Exhibit B amounts to setting up a different case for the Defendants. It is trite that parties are bound by their pleadings and are restricted to arguing their case within the parameters of their pleadings. See AGBOOLA vs. U.B.A. (2011) All FWLR (Pt.574) 74 at 89; ARCHBONG vs. EDAK (2006) All FWLR (Pt.323) 1631 at 1643; BRAWAL SHIPPING NIG. LTD vs. OMETRACO INT’L LTD (2011) All FWLR (Pt.574) 152 at 168. Again, the said review circular of 2009 was not produced before the court nor tendered in evidence but the counsel to the 1st to 4th Defendants have urged the court to take judicial notice of it. It is counsel’s argument that the said review circular of 2009 is a subsidiary legislation which brings it within the documents the court is permitted to take judicial notice of. Let me ask. Assuming the review circular of 2009 is a document which this court can take judicial notice, for what use will it serve in this matter to take judicial notice of it? I think none. There is no fact pleaded in respect of the document for which it is to serve as proof. Merely examining the document without putting it to judicial use is going to be an exercise in futility. Therefore, I will not engage in such fruitless exercise. The remuneration package, under which the Claimant’s claim in this matter remains to be considered, as disclosed in the parties’ pleadings, is Exhibit B. At pages viii and 25 of Exhibit B, the sum of N1,337,225.00 was prescribed as the annual basic salary for members of the State House of Assembly. The reviewed allowances for the legislature are contained in chapter four of the exhibit. At pages 30/31, it provided for ACCOMODATION ALLOWANCES which is 75% of annual basic salary for members of State House of Assembly. At page 36, it provided for SECURITY which will be provided in kind by relevant security agencies to concerned officers. At page 38, it provided for SEVERANCE GRATUITY which is payable after successful completion of tenure at 300% of annual basic salary. From Exhibit B, the Claimant is entitled to accommodation allowance and severance gratuity but not security allowance. Security is not in terms of cash. It appears however that the Claimant based her claim for security allowance on the 2011 Appropriation Law of Imo State. She said as a member of the Imo State House of Assembly, she was also entitled to the sum of N7,000,000.00 as security allowance which payment was captured in the 2011 Appropriation Law of Imo State. The 1st to 4th Defendants denied this claim in paragraphs 2, 9 and 10 of the statement of defence thereby putting the duty to prove the claim on the Claimant. The Claimant however failed to substantiate her claim that she is entitled to the sum of N7,000,000.00 as security allowance under the 2011 Appropriation Law. The said Law was not produced or tendered before the court. The only items of the claim which are supported by evidence are accommodation allowance and severance gratuity. Going by Exhibit B, ACCOMODATION ALLOWANCE is 75% of annual basic salary while SEVERANCE GRATUITY is 300% of annual basic salary. The basic salary for members of House of Assembly in Exhibit B is N1,337,225.00. The Claimant pleaded that her annual basic salary was N1,337,225. 75% of the annual basic salary was payable as accommodation allowance and 300% of her annual basic salary was to be paid as severance gratuity. According to the Claimant, what is due to her for accommodation allowance and severance gratuity are the sums of N1,002,918.75 and N4,011,675.00 respectively. The total sum which the Claimant is entitled to pursuant to Exhibit B is N5,014,593.75. The Claimant has proved that she has not been paid these allowances and had even demanded payment from the Defendants vide Exhibit C dated 28th November 2011. Under cross examination, DW1 who testified on behalf of the 1st to 4th Defendants said the Claimant was been paid her salaries, accommodation allowance, severance gratuity and security vote after she served as a member of the Imo State House of Assembly. Although DW1 also said he does not have any document to back up his claim as he did not work in the accounts department of the Imo State House of Assembly. This evidence conflicts with the pleading of the 1st to 4th Defendants. In paragraph 7 of the statement of defence, it was pleaded by the 1st to 4th Defendants that they are not responsible for payment of monies claimed by the Claimant but it is the duty of the Imo State House of Assembly to do so. If the 1st to 4th Defendants are not the ones responsible to pay the Claimant’s salaries and allowances, what is the basis on which DW1 said the Claimant had been paid? Who made the payment? DW1 did not explain further and did not show any evidence of payment of the accommodation and severance allowances to the Claimant. The 5th Defendant who is alleged by the 1st to 4th Defendants to be responsible to pay the Claimant’s salaries and allowances did not defend the case. There is no evidence from the 5th Defendant to show that the Claimant was paid the sums she claims in this suit. Learned Counsel to the 1st to 4th Defendants submitted that the Claimant is not owed any money and if owed any money at all, it is the House of Assembly which ought to pay the Claimant and not 1st to 4th Defendants. Counsel further submitted that the executive arm has no control over money appropriated to the House of Assembly and cannot be responsible for payment of House of Assembly members. To address this issue, it is necessary to know the status of the Defendants in this case. The Claimant described the 1st Defendant as the Government of Imo State, the 2nd Defendant as the Chief Executive of Imo State, the 3rd Defendant as the Chief Law Officer of Imo State and the 4th Defendant as the officer in charge of the accounts and funds of Imo State Government in paragraphs 2, 3, 4 and 5 of the statement of facts. In paragraphs 11, 14 and 15, the Claimant claims payment of her allowances from these Defendants. According to her, the Defendants are responsible to pay but they have refused to pay the sums due to her. Under cross examination, the Claimant explained that when she was a member of the House of Assembly, the salaries of members were paid from the accounts of the House of Assembly but the account was funded or financed by the State Government. From the sum of the above evidence of the Claimant, she has made the case that the fund for payment of her salaries and allowances came from the 1st Defendant. Constitutionally, the Government of each state in Nigeria has control of its funds, whether internally generated or from the Federation Account. The responsibility for the appropriation and use of the funds, including paying salaries and allowances of political, public office holders or civil servants also lies with the State Government. The 2nd Defendant, the chief executive of the state, is the office who exercises power or authority on behalf of the Imo State Government. It was in the Government of Imo State the Claimant served as member of the House of Assembly between 2007 and 2011. It cannot be contended that the Government of Imo State is not responsible to pay the members of the House of Assembly their salaries and due allowances. From the facts and evidence before me, I am firmly convinced that the Defendants, particularly the 1st and 2nd Defendants, have the responsibility to ensure that the Claimant was paid her allowances as a member of the Imo State House of Assembly as fixed by the RMAFC. In the result of all the foregoing, I find that the Claimant is entitled to accommodation allowance and severance gratuity. The claim for security allowance is refused. I accordingly grant the Claimant’s claim for accommodation allowance and severance gratuity in the total sum of N5,014,593.75. The Claimant also claims interest on the sum at the rate of 10% per annum from the date of the judgment until the judgment debt is liquidated. I grant this relief too. Consequently, the Defendants are ordered to pay the sum of N5,014,593.75 (Five Million, Fourteen Thousand, Five Hundred and Ninety Three Naira, Seventy-Five Kobo) to the Claimant and it must be paid to her within 30 days from today after which the sum will attract 10% interest per annum. I also award cost of N200,000.00 (Two Hundred Thousand Naira) in favour of the Claimant. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Judge |
