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National Industrial Court

CHIEF DR FRIDAY ONUKWUE & 149 ORS -VS- GOVERNOR OF ABIA STATE

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE

DATE: FRIDAY 22ND JUNE 2018           

SUIT NO. NICN/ABJ/184/2017

 

BETWEEN:

CHIEF DR FRIDAY ONUKWUE & 149 ORS

      CLAIMANTS                                                

AND

 

  1. GOVERNOR OF ABIA STATE
  2. ATTORNEY-GENERAL OF ABIA STATE
  3. ABIA STATE HOUSE OF ASSEMBLY          

DEFENDANTS              

 

APPEARANCES:

  1. MARY HAPPINESS-OKERE FOR THE CLAIMANTS.
  2. P.U. OGUNBUNKA [DIRECTOR OF CIVIL LITIGATION] ABIA STATE WITH O.N. OBASI [SENIOR STATE COUNSEL] FOR THE DEFENDANTS

 

JUDGMENT

INTRODUCTION

This suit was commenced by way originating summons on 19/06/2017. Later, an undated Amended Originating Summons was filed on 16th February 2018. The Amended Originating Summons was accompanied with an affidavit and a written address. This was deemed as properly filed and served on the 21st February 2018. The reliefs sought in the Amended Originating Summons are as listed hereunder:

1)    A DECLARATION that the claimants are entitled to their salaries and allowances for their unexpired tenure of 23 months as elected chairmen, deputy chairmen and councilors of Abia State Local Government Councils for their unexpired tenure 23 months as their colleagues in similar position were adjudged to be entitled to same by the Supreme Court in appeal No. SC.209/2010.

2)      AN ORDER directing the 1st Defendant to forthwith pay the Claimants their salaries and allowances for their unexpired tenure of 23 months and severance allowance individually at N51,224,946 per chairman x 15; N15,645,142 per deputy chairman x 12 and N14,904,608 per councilor x 123; and collectively totaling N2,789,382,678.

The sole question formulated for answer in the Amended Originating Summons is as follows:

Whether the Claimants are not entitled to be paid their salaries and allowances as 2004 – 2007 elected chairmen, deputy chairmen ad [sic] councilors of Abia State Local Government Councils for their unexpired tenure of 23 months as their colleagues who had been adjudged to be entitled to same by the Supreme Court in suit No. SC.209/2010 – Chigozie Eze & 147 Ors vs. Governor of Abia State & 2 Ors. [sic]

On 20th March 2018, the defendants/applicants brought a Notice of Preliminary Objection [NPO] dated 6th day of March 2018 but filed 20th March 2018 against the suit. This NPO was supported with an affidavit and a written address. The grounds on which the NPO was brought are as listed hereunder:

  1. The suit of the claimants is statute-barred, same having been brought almost 12 years after the cause of action arose.
  2. Gross abuse of the judicial process.

The claimants also filed a counter affidavit against the NPO on 26th April 2018 accompanied with a written address. On this same date, the claimant also filed a Further affidavit in support of the Amended Originating Summons accompanied with their reply on points of law. On the 9th May 2018, the claimants filed a counter affidavit against the NPO. This was accompanied with a written address. Later, on the 24th May 2018, the defendants/applicants filed a further affidavit in support of the NPO and accompanied it with their reply on points of law. Subsequently, on 20th March 2018 the defendants also filed counter affidavit against the Amended Originating Summons accompanied with a written address.

On the 21st February 2018 when the matter came up in Court, counsel to the claimants withdrew the motion dated 12th but filed 14th February 2018 and it was accordingly struck out. On the 31st May 2018 the case eventually came up for hearing. First, P.U. OGUNBUNKA, DIRECTOR OF CIVIL LITIGATION [DCL], ABIA STATE, of counsel to the defendants/applicants drew attention to the fact that the defendants have before the Court an NPO dated 6/3/18 but filed 20/3/18. The learned DCL moved the NPO, relied on the affidavit in support and adopted the written address and urged the Court to dismiss the suit. The learned counsel also drew attention to the fact that a Further Affidavit was filed 24/05/18 and Reply on Points of Law dated 11/05/18 but filed with the Further Affidavit on 24/05/18 in reaction to the counter affidavit of the claimants/respondents. The learned DCL applied for the leave of Court to make use of the further affidavit.

The learned counsel to the claimant/respondent: DR. ARINZE objected to the use of the further affidavit and the reply on points of law on the ground that they were filed out of time without paying the default fees. The learned OGUNBUNKA, DCL countered the objection by urging the Court to condone the irregularity and order the payment of the default fees. The Court ruled in favour of the defendants/applicants by condoning the irregularity and ordered that the default fees be paid within five days from the 31st May 2018. The learned OGUNBUNKA, DCL thereafter relied on the further affidavit and adopted the reply on points of law.

In adumbration, the learned OGUNBUNKA, DCL submitted that the reliance placed by the claimants/respondents on the Supreme Court’s case [Exhibit NJ01] as giving them cause of action is of no avail as a person who is not a party to a suit could not be vested with any interest in the outcome of that suit. The learned OGUNBUNKA, DCL submitted that thus, the claimants/applicants lacked the right to ask this Court to make an order relating to the Supreme Court’s case. Counsel cited Alimodu Sheriff v. PDP (2017) 14 NWLR (Pt. 1585) 212 at 373, paras. C-D; 374, paras. E-F to buttress his point. Counsel argued further that the Supreme Court case was a judgment in personam and the present suit is also in personam. Counsel submitted that if the Court found out that the suit is truly statute-barred, the only order it could make is that dismissing and not striking out the suit. On this, counsel cited NPA v. Lotus Plastics (2005) 19 NWLR (Pt. 959) 158, and urged the Court to dismiss the suit.

Thereafter, the learned DR. ARINZE, of counsel to the claimants/respondents drew attention of the Court to the counter affidavit filed against the NPO on 26/04/18 and written address dated 24/04/18 but filed along with the counter affidavit on 26/04/18. Counsel thereafter relied on it and adopted the written address in support. Counsel urged the Court to dismiss the NPO. In adumbration, the learned DR. ARINZE submitted that a party is entitled to ground his cause of action on a judgment whether or not he was a party to the judgment, and cited Archibong v. Ita (2004) 2 NWLR (Pt. 858) 590 at 632-633. Counsel submitted that the claimants/respondents are not asking this Court to make an order to benefit from the judgment of the Supreme Court, but rather based their cause of action on that judgment. Counsel submitted that the case of Ali Modu Sherriff cited by the learned OGUNBUNKA is irrelevant in that in that case, claimant sought to benefit from a suit in which he was not a party but that, in this case, the claimants/respondents just derived their cause of action from the judgment of the Supreme Court in issue and, are not asking to benefit from it.

Thus ended the oral addresses on the NPO from the parties and the hearing proceeded to the Originating Summons on the merit. DR. ARINZE, of counsel to the claimants/respondents started first. The learned counsel pointed out that there was an Amended Originating Summons dated and filed the 16th day of February 2018 and that; the Amended Originating Summons had just one question for the interpretation of the Court. The learned DR. ARINZE also pointed out that the Amended Originating Summons was accompanied with an affidavit and a written address filed 16/02/18. The learned counsel thereafter relied on the affidavit in support and adopted the written address in support dated 14/02/18 but filed 16/02/18. The learned counsel also indicated that upon the service of the counter affidavit of the defendants on the claimants, the claimants filed a further affidavit and accompanied it with a reply on points of law. Counsel thereafter urged the Court to grant all the reliefs claimed.

Thereafter, the learned DCL: OGUNBUNKA took his turn and drew the attention of the Court to the fact that he had some preliminary issues to canvass against the Originating Summons. The Court asked him whether those issues were raised in the written address filed and he said no, and the Court foreclosed him from raising those issues, as he would be taking the other side by surprise and that he had waived his right to raise any preliminary issue by taking further steps. Thereafter, the learned counsel drew attention of the Court to the counter affidavit and the accompanying written address filed against the Amended Originating Summons. Counsel relied on all the paragraphs of the counter affidavit and adopted the written address. The learned counsel urged the Court to dismiss the suit.

In adumbration, the learned OGUNBUNKA emphasized that apart from Exhibits A2-A32, all the exhibits annexed to the affidavit in support of the Amended Originating Summons, which are public documents, were not dully certified and thus failed to comply with the mandatory provisions of section 104(1)&(2) of the Evidence Act. Counsel also stated that the Chairman of the Abia State Electoral body did not sign the exhibit, and as such, it was inadmissible since its authenticity was in doubt. Counsel also submitted that Exhibits A3-A154 were merely attached without the certificates of the Commissioner for Oaths indicating that they were dully exhibited before the Commissioner for Oaths. Counsel urged the Court to reject all the exhibits as inadmissible for the purposes of the suit.

In reply on points of law, DR. ARINZE submitted that thirty something of the exhibits were dully certified, and submitted that, the essence of attaching these exhibits was to show that the parties were elected chairmen, deputy chairmen, and councilors as clearly deposed to in paragraph 3 of the supporting affidavit and that, the defendants admitted this. Counsel submitted that even if the whole of the exhibits were expunged, the case would still remain unassailed, as the defendants have admitted that the claimants were elected as such. Counsel argued that the claimants presented their processes and paid for 155 exhibits; and that, as such; in law, the claimants had done what is required of them. Counsel argued that, it was the duty of the Registrar to engross the certificates on some of the documents and if the Registrar failed to do this, the sin of the Registrar could not be visited on the litigants. Counsel argued that the competent body, the Federal Capital Territory High Court, duly certified the documents. Counsel submitted further that even if these documents were struck out, the fortune of the case would not be negatively affected. The learned DR. ARINZE thereafter adopted the reply on points of law filed and urged the Court to grant all the reliefs claimed in the Amended Originating Summons.

At this stage, the suit was adjourned to 12th June 2018 for consolidated judgment on both the NPO and the Amended Originating Summons. The judgment was not ready on this date and was further adjourned to the 21st June 2018; but was subsequently adjourned off record to 22nd June 2018. Having carefully given the story of the case from the point of filing till the adoption of the written addresses in respect of both the NPO and the Amended Originating Summons, the next thing is to go ahead to summarise the addresses of counsel to the parties in respect of both the NPO and the Amended Originating Summons.

ADDRESSES OF COUNSEL ON NPO

  1. Address in Support of the NPO

P.U. OGUNBUNKA, the learned DCL Abia State, franked the written address in support of the NPO. The learned counsel submitted two issues for the determination of the NPO. The two issues are reproduced verbatim hereunder:

  1. Having regard to sections 18 and 42 of the Limitation Law Cap 114 Laws of Abia State, 2005, whether this suit is not statute barred. [sic]
  2. Whether this suit is an abuse of court process.[sic]

ISSUE 1:

Having regard to sections 18 and 42 of the Limitation Law Cap 114 Laws of Abia State, 2005, whether this suit is not statute barred?

Under issue 1, the learned OGUNBUNKA, DCL admitted that the claimants/respondents were elected for a fixed period of three years running from 2004-2007, and the 1st defendant dissolved them on 16th June 2006 and appointed a caretaker committee in their stead. Counsel stated further that some of the dissolved people filed a suit and fought the suit up to the Supreme Court, which gave judgment in their favour on 11th July 2014; and that the present claimants/respondents sat by and did not file any suit challenging their dissolution and were not parties to the one decided by the Supreme Court, and that now, they intend to use the suit won by those who challenged their dissolution as a springboard for their suit. Counsel submitted that as it is, the cause of action arose from the dissolution on 16th June 2006; and as such, the action is statute barred by virtue of sections 18 and 42 of the Abia State Limitation Law, Cap. 114, Laws of Abia State, 2005 [ASLL].

Counsel stated that the claimants/respondents did not state the date of their termination, and submitted that by virtue of Skye Bank Plc v. Chidiebere (2007) 7 NWLR (Pt. 1564) 213 at 236-237, paras. E-H, though, courts ought to be restricted to the originating processes in determining issue of jurisdiction, but nonetheless, nothing stops courts from examining documents in courts’ dockets to determine issues of jurisdiction; and as such, invited this Court to examine the judgment [Exhibit A-151] annexed to the affidavit of the claimants. Counsel stated that at page 16 of the said judgment, the date of the dissolution, which is the cause of action, was stated to be 16th June 2006. Counsel argued that they had five years from the said 16th June 2006 to institute action to challenge their dissolution and slept by when their colleagues timeously did. Counsel submitted that by the combined effects of paragraphs 4 and 5 of the claimants’ affidavit and the Originating Summons filed 19th June 2017, this suit is statute barred the cause of action, which arose 16th June 2006. Counsel cited Egbe v. Adefarasin (1985) 1 NWLR (Pt. 3) 547 at 568-569; and Obiefuna v. Okoye (1961) 1 ALL NLR 387 to the effect that, an action could not be brought outside the limitation period. Counsel also cited Hassan v. Aliyu & 2 Ors. (2010) 12 SC 21 at 53, para. 5, to the effect that, issue of limitation of action is one touching on the jurisdiction of the Court; and Nigeria Ports Authority v. Lotus Plastics (2005) 19 NWLR (Pt. 959) 158, to the effect that, once the Court holds that an action is statute barred, the only order it could make is one dismissing the suit. Counsel thereafter moved to issue 2.

ISSUE 2:

Whether this suit is an abuse of court process?

 

Counsel started by citing Amaefule v. The State (1988) 2 NWLR (Pt. 75) 177 to clarify the ambit of abuse of court’s process. Counsel submitted that the present suit constitutes abuse of judicial process in that, it attempted to introduce fresh issues not considered by the Supreme Court in Exhibit A-151, and cited paragraphs 7, 8, 9, and 10 of the claimants’ affidavit as evidence of this. Counsel argued that the Supreme Court made no pronouncement on salaries and allowances payable and did not hold that any specific sum be paid; and that, the present suit, which appeared to be in the nature of judgment enforcement, on a suit to which the claimants were not parties and on which they could not derive benefits amounted to abuse of process and as such, liable to be dismissed. Counsel finally urged the Court to uphold the NPO and dismiss the suit.

Thus, ended the address in support of the NPO. I shall now move to the address against the NPO as filed by the counsel to the claimants/respondents.

  1. Written Address Against the NPO

CHIEF F.O. ONYEBUEKE; DR. SIR L.O. ARINZE; CHRIS OKONKWO; and IKECHUKWU ONOVO franked the written address of the claimants/respondents against the NPO. They formulated two issues, to wit:

  1. Whether in the circumstances of this case the action of the Claimants is statute barred.
  2. Whether the Claimants’ suit is an abuse of court process.

 

 

 

ISSUE 1:

Whether in the circumstances of this case the action of the Claimants is statute barred?

 

The learned counsel for the claimants/respondents began by citing Agbanelo v. U.B.N Ltd (2000) 7 NWLR (Pt. 666) 534 and others on the meaning of cause of action; and that, a court must confine itself in unraveling the cause of action on the originating processes before it. On this, counsel cited Omotayo v. N.R.C. (1992) 7 NWLR (Pt. 254) 471 and others. Counsel argued that, where there is continuing injury or the wrong is a continuing one, as in the instant case, the limitation law would not be operational. On this submission, counsel cited A-G Rivers State v. A-G Bayelsa State & Anor. (2012) 52 NSCQR 239 at 258. Counsel argued that the withholding of the claimants’ 23 months unexpired salaries and allowances is still continuing, and as such, the limitation law did not catch this action. Counsel also submitted that, assuming that the wrong done to the claimants were not continuing, the continued withholding of the claimants salaries and allowances, which gave rise to this action in spite of the judgment of the Supreme Court and several written and oral representations made by the claimants to the defendants in 2014 vide exhibits CA1 and MJOI; and that, a cause of action could be founded on the judgment of a court. Counsel cited Elabanjo & Anor. v. Dawodu (2006) 6 KLR (Pt. 221) 2305 to the effect that, cause of action are set of facts and circumstances giving rise to filing of a claim in court for remedy; and that, the facts and circumstances that gave the claimants the right to file this action is the Supreme Court’s judgment that was delivered 11/7/2014, and thus, the question formulated in the Amended Originating Summons for determination. Counsel cited paragraphs 5, 6, & 7 of the affidavit in support of the Amended Originating Summons to show that this present action was based on the judgment of the Supreme Court in issue.

Counsel argued that the wrongs complained of remained unresolved till 4th June 2010 when the claimants became aware of the suit filed by their colleagues and made several unsuccessful efforts to join them at the Supreme Court till 25th July 2014 when the claimants’ counsel wrote the defendants through their counsel demanding they be paid their salaries and allowances as adjudged by the Supreme Court on 11th July 2014. Counsel therefore submitted that this suit commenced from the 11th and 25th July 2014 and could not be said to be statute-barred. Counsel thereafter moved to issue 2.

ISSUE 2:

Whether the Claimants’ suit is an abuse of court process?

 

Counsel argued that none of the vices enumerated by the Supreme Court in Amaefule v. State cited by the defendants’ counsel, exists in the present suit; and that, the claimants did not introduce new facts or issues but only claimed their withheld salaries and allowances by being unlawfully removed from office in 2006, as adjudged by the apex court. Counsel argued that by virtue of A-G Federation v. A-G Abia State (2002) FWLR (Pt. 102) 1 SC 143-144; & 155, the Court is bound by section 74 of the Evidence Act to judicially notice the law that regulates the salaries and allowances of Local Government councilors in Nigeria. Counsel submitted that by virtue of section 18(1) of the Interpretation Act, regulations made pursuant to an Act like the salaries and allowances of political office holders in Nigeria qualify as law. On this, counsel relied on Bernard Okoebor v. Police Council & Ors (2003) 5 SC 11 at 27.

Counsel urged the Court on the authority of Sodipo v. Lemiminkoinen (1992) 8 NWLR (Pt. 258) 236, to be wary in terminating suits in limine and also relied on Omoju v. FRN (2008) 7 NWLR (Pt. 1085) 38 at 57 and Transbridge Co. Ltd v. Survey International Ltd (1986) 4 NWLR (Pt. 41) 499 to urge the Court to uphold substantial justice against technical justice. Counsel thereafter submitted that the claimants relied heavily on the letter of 25/7/2014 written to the Governor (1st defendant) reminding him of the judgment of the Supreme Court, a judgment in rem. Counsel argued that based on the said judgment, every person affected by that unlawful removal is entitled to benefit from the judgment. Counsel argued that, in law, a party is right to use a favourable judgment as foundation for new cause of action. Counsel argued that there are a plethora of authorities on this principle of law [but did not cite one]. Counsel finally urged the Court to dismiss the NPO with cost of N100,000 against the defendants and in favour of the claimants.

I now turn to the Reply on Points of Law. The learned P.U. OGUNBUNKA franked it. On the issue of continuance of injury, the learned counsel submitted that the counsel to the claimants/respondents appeared to be confusing the continuance of the injurious effect of cause of action with continuance of the cause of action. Counsel submitted that the cause of action arose at the dissolution of the councils in 2006; and that, the consequences of that action could not be the cause of action.  On this line of argument, counsel cited Obiefuna v. Okoye (1961) SCNLR 144; Independent National Electoral Commission v. Ogbadibo Local Government (2016) and others. Counsel submitted that, as a result, the case of A-G Rivers State v. A-G Bayelsa State [supra] cited by the learned counsel to the claimants was totally irrelevant to the facts of this case. On the issue of the judgment in Supreme Court’s case in issue being judgment in rem, the learned OGUNBUNKA submitted that it is not a judgment in rem as contended but one in personam. On this counsel cited Yanaty Petrochemical Ltd v. EFCC (2018) 5 NWLR (Pt. 1611) 97 at 148. Counsel argued that the Supreme Court’s case in issue was about the determination of the rights of the parties in the subject matter of the appeal. Counsel submitted further that, even if the judgment in question is one in rem, it was only so in respect of the claim ventilated at the trial dealing with the legality of the dissolution of the councils and not with respect to payment of personal allowances and entitlements. Counsel finally urged the Court to uphold the NPO and dismiss the suit in limine.

Having finished with the addresses on NPO, I shall now move to the addresses on the Amended Originating Summons.

ADDRESSES ON THE AMENDED ORIGINATING SUMMONS

  1. Address in Support of the Amended Originating Summons

 

CHIEF F.O. ONYEBUEKE, DR. SIR L.O. ARINZE, CHISOM KALU, and IKECHUKWU ONOVO franked the written address in support of the Amended Originating Summons. In respect of the lone question submitted for the determination of the suit, the learned counsel submitted that the claimants are entitled to their salaries and allowances for the 23 months of their unexpired tenure as elected chairmen, deputy chairmen, and councilors of Abia State Local Government Councils unlawfully removed from office by the 1st defendant, as their colleagues in similar positions were adjudged to be entitled to same by the Supreme Court in appeal No. SC.209/2010.

          Counsel submitted that the law is trite and firmly established that a claimant could found a fresh cause of action in judgment of court [NO AUTHORITY IS CITED]; and that, in the instant case, the claimants found their cause of action in the judgment of the Supreme Court delivered 11/07/2014 and attached by virtue of paragraph 6 of the affidavit in support as Exhibit A-151.Counsel submitted that, through affidavit and documentary evidence, it has been shown that the claimants were elected chairmen, deputy chairmen, councilors elected the same day in 2004 and unlawfully removed from office the same day with their colleagues in Exhibit A-151. Counsel referred to paragraphs 2 and 3 of the supporting affidavit and exhibits A-1-A-150. Counsel referred to pages 25 and 26 of Exhibit A-151 to the effect that, the Supreme Court ordered that all the appellants be paid their salaries and allowances for 23 months. Counsel argued that it is this judgement, particularly as condensed in the quoted pages that the claimants relied on in founding their cause of action. Counsel argued that, since they claimants have established through credible evidence that they are entitled, like their colleagues, to their salaries and allowances for 23 months, as their colleagues were adjudged to be entitled, the Court is urged to so hold.

          Counsel also submitted that acquiescence, which would deprive a person of his right, must amount to fraud. Counsel cited Adebo v. Omisola (2005) 2 NWLR (Pt. 909) 149 at 157 to buttress this point. Counsel finally urged the Court to enter judgment for the claimants.

          I shall now move to the written address of counsel to the defendants against the Amended Originating Summons.

  1. Address Against the Amended Originating Summons

 

P.U. OGUNBUNKA, DCL franked the written address in support of the counter affidavit against the Amended Originating Summons; and submitted one issue for the determination of the suit. The issue submitted is reproduced as follows: “Whether the Claimants are entitled to their reliefs sought in this suit.” [sic] Counsel submitted that, there is no law that empowers this Court to grant the reliefs sought in the action since, the claimants were not parties to the Supreme Court’s case from inception till it ended at the Supreme Court. Counsel submitted that the fresh cause of action, which the claimants claimed arose from the Supreme Court case was misconceived, as the claimants were not parties to the Supreme Court’s case in issue, they had no right of action inured them to enforce the remedy granted in the suit. Counsel argued that since the present suit is anchored on the Supreme Court’s decision in issue, the Supreme Court being invested with finality of decisions would not permit a rehearing or review of its judgment. Counsel cited Obioha v. Ibero (1994) 1 NWLR (Pt. 322) 503 to buttress his point. Counsel argued that this Court has no vires to review or rehear the judgement of the Supreme Court in issue or grant the reliefs sought.

          Counsel argued further that no pronouncement was made by the Supreme Court on the sums due as allowances and salaries for the unexpired period of the appellants’ tenure and no sum was adjudged as the salaries and allowances due in the Supreme Court’s judgement in issue. On the basis of the above, counsel finally urged the Court to dismiss the suit in its entirety.

          I shall now move to the reply on points of law. On the issue of not having the right to rely on the judgment of the Supreme Court in issue, the learned counsel submitted that the law is well settled that a party is entitled to use a favourable judgment as a foundation of new cause of action [NO CASE CITED]. Counsel submitted further that, claimants relied heavily on the letter written 25/7/2014 to the Governor [Exhibit CA-1] reminding him of the judgment of the Supreme Court which was in rem, and that, based on this judgment, every person affected by that unlawful removal is entitled to the benefit of the judgment; and that, as a result, the claimants are using the said judgment as foundation for their cause of action. Thus, the reply on points of law was brought to an end.

          As could be seen, I have carefully summarized the addresses of counsel on both the NPO and the Amended Originating Summons. The next thing is to give my decision on both the NPO and the merit of the Amended Originating Summons. But before doing these, let me state that I have carefully studied all the processes connected with both the NPO and the suit and digested their contents fully. In the course of writing this consolidated judgment, references shall be made to any of these processes as occasions demand. Nevertheless, I have some preliminary issues to attend to before going further.

PRELIMINARY DECISIONS

Before going into the merit of the NPO and the Amended Originating Summons, I wish to observe that I have searched through the file and could not find evidence that the defendants paid the default fee for the further affidavit filed on 24/05/18 out of time and which was conditionally deemed properly filed and served on the condition that the default fee be paid within five days. That was on the 31st May 2018 when the matter came up for hearing. While combing through the file for evidence of payment for the default fee in respect of the further affidavit, I however came across a receipt for payment of default fee attached to the back of the written address attached to the counter affidavit filed by the defendants against the Amended Originating Summons on 20th March 2018. This receipt was dated 7th June 2018. I have checked and observed that the Amended Originating Summons was filed along with the affidavit in support on 16th February 2018. The defendants were served on 21st February 2018 – see p. 567 of file. This counter affidavit was therefore also filed 12 days out of time without the payment of the default fee, and the leave of the Court was not obtained to deem it as properly filed and served.

The order given was in respect of the further affidavit and the defendants cannot rely on this order to rectify the defect inherent in the counter affidavit without the leave of court properly sought and obtained. This counter affidavit together with the written address attached to it and the further affidavit together with the reply on points of law attached to it are therefore discountenanced.

I also wish to observe that the claimants/respondents filed two different counter affidavits and written addresses against the NPO. One was filed 26th April 2018 together with its written address while the other was filed later on 9th May 2018 also together with the written address. On 31st May 2018, when the case came up for hearing, the counsel to the claimants did not formally withdraw any of the two counter affidavits. However, counsel relied on the counter affidavit filed 26th April 2018 and adopted the written address in its support. The effect is that the counter affidavit filed 9th May 2018 was abandoned. It is hereby discountenanced.

I shall not reckon with these processes stated above nor refer to them in the determination of the NPO and the Amended Originating Summons. I now move to my decisions on the NPO and the Amended Originating Summons.

DECISION OF THE COURT

 

  1. Decision on the NPO

In deciding the NPO I shall adopt the issues formulated by the counsel to the defendants/applicants, to wit:

  1. Whether having regard to sections 18 and 42 of the Limitation Law, Cap. 114, Laws of Abia State, 2005, this suit is not statute barred?
  2. Whether this suit is an abuse of the court’s process?

ISSUE 1:

Whether having regard to sections 18 and 42 of the Limitation Law of Abia State, this suit is not statute barred?

 

Now, section 18 of the Limitation Law, Abia State [LLAS] provides that:

“No action founded on contract, tort or any other action not specifically provided for in Parts 2 and 3 of this Law shall be brought after the expiration of five years from the date on which the cause of action accrued.” [Underline for emphasis]

Section 42 of LLAS provides thus:

“Notwithstanding anything contained in any other enactment or rule of law to the contrary all actions to which this Law applies howsoever arising against the State or against any State public authority, or officer thereof or any person acting in the stead of such public authority or officer thereof, for anything done or intended or omitted to be done in pursuance or execution of any such act, duty or authority or in respect of any neglect or default in the execution of any such act, duty or authority shall be commenced within the same period of time after the cause of action arose as if such action were brought by or against a private individual.”

These are the two provisions submitted, on the issue of the action being statute-barred, for consideration in the NPO. I have checked and found that the subject matter of the action herein, which are claims for declaration of entitlement to arrears of salaries and allowances and for order against the defendants to pay the arrears of the salaries and allowances of the claimants, who were elected officers, are not covered in Parts 2 of the LLAS. Part 2 covers land matters while Part 3 deals in part with actions brought on judgment. By the nature of defence against the objection, it would appear that part of the argument is that this action was founded on judgment. So, Part 3 might have some bearing on the NPO. We shall examine that anon. For the mean time, let us concentrate on issue of section 18 of the LLAS. This action did not arise out of contract or out of labour done but from breach of statutory duty in cutting short the lifespan of the tenure of elected officers and failing to pay them off. It thus falls within the ambit of “any other action not specifically provided for in Parts 2 and 3” of the LLAS. As for section 42, it appears to me that, it merely reinforces the provisions of section 18 of the LLAS when it affects public officers or authority, giving them the same right as that of a private citizen. Otherwise, it serves the same function as section 2(a) of the Public Officers (Protection) Act, since it seemed to be couched impari materia. If this view were correct, it would also apply to the suit in view of the fact that I have held that the suit did not arise from specific contract or employment but from breach of duty imposed by statute. But section 18 is self-executory without reference to section 42. It would therefore still avail the defendants even if this suit arose from specific contracts or otherwise; and likewise section 42.

Now, the dispute on the whether this action is statute barred or caught by limitation law devolved on whether the action is a continuing one or not; and whether a new cause of action arose from when the letter of 25/7/2014 was allegedly written to the Governor to implement the judgment of the Supreme Court in Exhibit A-151. On the issue of continuance of cause of action, let me cite CBN v. Amao (2010) LPELR-838 (SC), 22-23, paras. F-B:

“Both parties have not disputed the fact that the issue concerns the monthly payment due to the respondents. The appellant pays monthly pensions to the respondents less than what is provided in the White Paper and the two circulars every month thereby leaving part of their entitled monthly pension unpaid. This clearly demonstrates the fact that the cause of action in the circumstances arises every month when appellant pays less pension to the respondents than their full harmonized pensions, which appellant had agreed to pay. It is therefore very clear that there is continuance of injury the cessation of which cannot be determined as long as the respondents live and are paid their monthly pensions other than as harmonized…It follows therefore that each month that the respondents are paid pensions less than the harmonized pensions, a cause of action arises in respect of the balance or sum outstanding.”

The above suit, which is on payment of arrears of pensions, is impari materia on the issue at hand in the instant suit, which is also on payment of arrears of salaries and allowances. It therefore throws more light on the argument whether or not the arrears claimed in the instant suit is continuing or had ceased. The claimants in the instant suit were all elected officers who had three-year tenure to spend starting from 2004 to 2007. Their tenure was truncated when they were dissolved by the 1st defendant and were not paid off; hence, the claim for 23 months salaries arrears and arrears of allowances. If we apply the analogy of CBN v. Amao [supra], the tenure of the claimants herein ended in 2007. This suit was commenced on 19th June 2017. By 2007, the claimant would have ceased to be in office at the expiration of their tenure whereas, in the case of CBN v. Amao [supra], the plaintiff would cease to collect his pensions only when he dies. And since the pension was paid less than it was supposed to be on monthly basis, it is not difficult to see that he would be entitled to bring a fresh action each month he suffers this injury. In that sense, the injury was a continuing one.

On the other hand, the tenure of office of the claimants were caught short on 16th June 2006, the cause of action arose ordinarily on this date; and this truncation of tenure not being repeated every month, the cause of action ceased from the one-stroke action on 16th June 2006 though, its effect lingers till date. On the other hand, assuming because they were not paid off and had the right to their salaries and allowances on monthly basis till the expiration of their tenure in 2007, and would therefore have fresh cause of action every month the failure to pay arose, this scenario would definitely cease at the expiration of their tenure in 2007; and when we count from 2008 to 2017 when this action was commenced, it gives us a duration of about 10 years. And if from 6th June 2006, when the truncation was effected, that is a duration of about 11 years. By the authority of CBN v. Amao [supra], in whatever way one looks at it, the cause of action herein is not a continuing one. Computing the five-year limitation period, the cause of action arose and ceased either on the anniversary of 16th June 2006 on 16th June 2011 or at the anniversary of their assumption of office 2004 at 2009.

I now move to the issue of whether this action arose from the letter of 25/7/2014 allegedly written to the Governor to implement the Supreme Court’s judgment in Exhibit A-151. I have searched the file and could find any such letter. Nevertheless, assuming the said letter was actually written. It is the contention of counsel to the claimants/respondents that the judgment of the Supreme Court in issue gave the claimant a right of action from 25/7/2014 and that the cause of action crystalized when the letter of 25/7/2014 was written to the Governor demanding for their arrears of salaries and allowances. In essence, the counsel is arguing that their action is founded on the judgment of the Supreme Court in issue. On the other hand, the counsel to the objectors is of the view that a person, not being a party to an action, could not derive any benefit from such action and that, since the Supreme Court is the Court of last resort, its decision could not be a fresh cause of action for another suit; and that, to do that would amount to reviewing or rehearing a case already heard by the Supreme Court. Counsel to the claimants also argued that this action being in rem inures on everybody including the claimants whereas, the counsel to the objectors is of the view that the action is not in rem, and that, even if it is in rem, only parties to the suit could benefits from it.

It is not in dispute that the present claimants were not parties to the suit, the judgment of which this present action is allegedly based. It is also not in dispute that this action is claiming salaries and allowances, forming part of the consequential orders in the Supreme Court’s case in issue. However, it is not correct law that a judgment cannot give rise to a cause of action as submitted by the counsel to the objectors. A judgment could engender a new cause of action or could give rise to a new cause of action, depending on the circumstance. In Abeje v. Alade & Anor. (2010) LPELR-3561 (CA) 33, paras. D-G, where the Court of Appeal expatiated the issue and stated the position of law thus:

“A declaratory judgment may however be enforced by a subsequent action (Where the right has been violated). A party who obtains a declaratory judgment may go back to Court to seek an order to enforce it, otherwise it remains dormant and unenforceable. See: – Okoya vs. Santili (1990) 2 NWLR (Pt. 131) 172 at 228 where the Supreme Court states thus: –

‘It is also a matter of general consensus among academic writers and in judicial decisions that a declaratory judgment which is an embodiment of the recognition of particular right may be the basis for subsequent proceedings to enforce such rights where such right is threatened, or is hence a declaratory order or judgment remains a dormant right until subsequent proceedings have been taken to protect the threat or violation of the rights so declared in the judgment or order.”

It is thus clear that a declaratory judgment could ground new cause of action where the right declared is violated or threatened. It is thus certain that if the rights secured in the declaration were violated, the declaratory judgment would ground a new cause of action. The argument of the counsel to the claimants is that the rights of the claimants to their arrears of salaries and allowances were declared in the Supreme Court’s judgment in issue and that when the letter of 25/7/2014 was written to the Governor to implement the judgment of the Supreme Court, the limitation period was reawakened and this forms the new cause of action. But counsel’s argument was based on the fact that the judgment of the Supreme Court was one in rem, and as such, conferred right on the claimants like their colleagues who instituted the suit leading to the judgment. I want to say that judgment in rem is specie of declaratory judgment that declares a right against the whole world. So, the same principles are applicable. In a nutshell, it is of no moment whether the judgment of the Supreme Court in issue is one in rem or in personam. The big fuss made about whether or not the judgment of the Supreme Court in issue is in rem or not is fierce fury signifying nothing. The important thing is whether or not the present claimants were parties to the Supreme Court’s judgment in issue.

One important fact, which the instant claimants glossed over, is the fact that they were not parties to the Supreme Court’s case in issue. This is where the argument of the counsel to the defendants becomes germane. He argued that not being parties to the Supreme Court’s judgment, the present claimants could not derive any benefits therefrom. Abeje v. Alade & Anor [supra] has shown clearly that only parties to a declaratory judgment could bring fresh actions to enforce the rights granted in the declaratory judgment. It follows too, that only parties to judgment in rem could bring action to enforce it since judgment in rem is specie of declaratory judgment. From Abeje v. Alade [supra], it is clear that the situation envisaged does not even tally with extension of the limitation period, but tallies squarely with a new cause of action at the new violation of the right secured in the declaratory judgment. And this only happens where the judgment is merely declaratory and not executory. Where it is both declaratory and executory, no new action could be initiated thereby. The logical thing would be to execute the judgment. So, in essence, the claimants who were not parties to the Supreme Court’s case cannot derive a new cause of action from the case. And what is more, the judgment in issue is both declaratory and executory. In making the declaration, the Supreme Court made the executory pronouncement that the areas of salaries and allowances be paid to the appellants in the suit. Such a case could only support the case of the present claimants, which is based on the same set of facts with the case of the plaintiffs in the Supreme Court’s case. It could only be a binding precedent in support of their case. The present claimants must therefore have their limitation period running from the time those of plaintiffs in the Supreme Court’s case started running since the cause of action arose from the same set of facts as theirs.

As submitted by counsel to the claimants: if they based their cause of action on the Supreme Court’s judgment or derive their cause of action from it: are they saying their cause of action arose from this judgment or that it is the judgment that is responsible for the injury in issue? If that is what they are saying, then from where did the cause of action litigated upon in the Supreme Court’s suit on which they based their cause of action arise? The simple truth is that their cause of action, which is exactly the same with those on which the Supreme Court’s case was based, arose squarely on the same date, and the calculation of the limitation period must be reckoned from that date. The only usefulness of the Supreme Court’s case to them is that it can support their case in terms of judicial precedent: that is, if the case is filed within limitation period. I have read Archibong v. Ita [supra] relied upon by counsel to the claimants, particularly the ratio on pp. 632-633, paras. H-A, I cannot find how it supported their case. What Onu, JSC said in that case was that a person who already had a judgment in his favour could use that judgment as a foundation for a new injury suffered with respect to the subject matter of the judgment.

It is clear that the cause of action on which he approaches the Court must be new. This is in tandem with the ratio in Abeje v. Alade [supra]. With or without the previous judgment in his favour he would have been entitled to sue on that new cause of action. The judgment in his favour only strengthens his case and is not the cause of the new cause of action or the new cause of action derived from it. Even if derived from it, it must be new. In other words, Archibong v. Ita actually reinforces Sheriff v. PDP [supra] cited by counsel to the defendants/applicants contrary to the argument of counsel to the claimants/respondents. The claimants herein, not being parties to the Supreme Court’s judgment in issue nor privies of the parties, cannot derive any benefit from it other than using it as a precedent. In Archibong v. Ita [supra] the parties to the previous judgments and their privies were the persons involved in the subsequent litigation. The situation here is different. The present claimants were not parties to the Supreme Court’s case from inception to the end and they are not the privies of the parties therein. No new cause of action has arisen neither is there any new breach. It is the same old cause of action, which the present claimants had since 2006 and just woke up now to litigate.

Another aspect of the foregoing is the reliance placed on the letter allegedly written to the Governor 25/7/2014. I could not see the nexus. It is not stated that the Governor replied the said letter or acknowledged the debts in issue or that part-payment of the debts were made to reawaken the limitation period and thereby refresh the cause of action. So, the letter is of no moment. Let me state too, that the contention of the claimants that the judgment of the Supreme Court conferred a right on the present claimants cannot be farther from the truth. At page 26 of the said judgment, at the very last paragraph and sentence, the Supreme Court held thus:

“For the avoidance of doubt it is hereby ordered that the 1st respondent pays immediately to all the appellants their salaries, allowances for 23 months.”

From the above, the judgment is both a declaratory and executory judgment. There is absolutely no need to bring another and fresh action to enforce the rights declared therein, the rights having been concretized by directly ordering that the arrears of salaries and allowances of all the appellants be paid them. And in stating the persons to be paid these entitlements, the claimants herein were not included. Only the appellants in the Supreme Court’s case were named as beneficiaries. So, the law remains that non-parties cannot derive any right from a judgment. If the executory judgment conferred any right on the present claimants, why did they not go for enforcement, instead of instituting a fresh action to enforce a clearly executory judgment? The Supreme Court has admirably stated the maxim in Plateau State & Anor v. A-G Federation & Anor (2006) LPELR-2921 (SC) 82, para. B that: “The law is basic that only parties to an action can claim relief flowing from such action. A person who is not a party to an action cannot claim relief. He lacks the locus to do that.” The heading of the Supreme Court’s judgment in issue [Exhibit A-151] shows clearly that it is not a representative action. Relief 8 at page 10 of the judgment also clearly brought out the fact the Supreme Court’s judgment [Exhibit A-151] is not a representative action. This relief specifically asked for reinstatement of the plaintiffs in the action and not others. This relief is the fulcrum of the consequential order made and quoted above that, all the plaintiffs/appellants be paid their backlog of salaries and allowances since reinstatement could no longer be ordered.

The present suit is purely one brought to litigate rights that inhered in the claimants and had been left in limbo till they were caught up in the web of limitation law. The suit is not one brought on any judgment or to execute any judgment as it were to attract the provisions of Part 3 of the LLAS. It follows that Part 3 of the LLAS is not relevant to this case. This answers my promise to come back to the issue of Part 3 of the LLAS. If it is the Supreme Court case that gave the present claimants cause of action as contended, then what gave the plaintiffs in the Supreme Court’s case their own cause of action? Judgments of courts do not create causes of action: they rather adjudicate and decide on causes of action. The present claimants are claiming exactly the same rights as those of the plaintiffs in the Supreme Court’s case; so, their rights of action arose from the same set of facts and time. The present claimants and the plaintiffs/appellants in the Supreme Court’s case all had their tenure truncated the same day and without being paid off. This means the cause of action of the present claimants relates back to the time the cause of action of the plaintiffs in the Supreme Court’s case arose. So, in whatever way one looks at it, the present suit, which is instituted well above the five-year limitation period, is caught by section 18 of the LLAS; and therefore, statute-barred.

ISSUE 2:

Whether this suit is an abuse of court process?

 

With regard the argument that the Supreme Court made no pronouncement on salaries and allowances and in trying to introduce it, this suit amounted to abuse of the process of Court. I beg to defer. The Supreme Court clearly decided that salaries and allowances of the plaintiffs/appellants be paid. The mere fact that it did not mention the specific sum to be paid does not detract from the fact that it ordered payment. This order is in the nature of liquidated sum arrive-able at by mere arithmetic. To that extent, the claimants herein did not introduce new issues. But I am definitely persuaded by the argument that this suit is in the nature of enforcement of judgment; and that since the claimants were not parties to the Supreme Court’s case, the have no vires to institute an action for the enforcement of the Supreme Court’s case. But this does not take away the right of the claimants to the reliefs claimed. It is the nature of reliefs claimed and the evidence in support that would show what the suit is really about and not the address of counsel. Without the issue of the suit being statute barred, I do not really think it amounts to abuse of process of court. So, issue 2 is resolved in favour of the claimants and against the defendants.

          On the final note, the NPO succeeds in part. Relying on Akeredolu v. Omiyale & Ors. (2013) LPELR-22800 (CA) 31-32, paras. F-A, I hereby dismiss this suit for being statute barred. That ends discussions on the NPO. This would ordinarily have ended the suit, but in case my decision on the NPO is wrong. I hereby give my decision on the merit of the Amended Originating Summons.

  1. Decision on the Amended Originating Summons

In arguing the Amended Originating Summons, the learned counsel that franked the written address did not formulate new issue but argued the written address on the question formulated for the construction of the originating summons. I observed that the same arguments were essentially canvassed by the claimants’ counsel, as were canvassed against the NPO, in his written address on the Amended Originating Summons. The only different argument raised is that in reply to the oral objection against the documents exhibited in support of the case. These documents, which parties agreed are public documents, were attacked by the counsel to the defendants on three grounds: (1) for failing to be properly certified, (2) coming from improper custody, (3) and not being properly endorsed by the Commissioner for Oaths. The counsel to the claimants replied that thirty something of these documents were properly certified and that, even if they were expunged, it would not negatively affect the fortune of the case, since they were exhibited to show that the claimants were elected as deposed, and the defendant did not dispute this and actually conceded the point.

Let me point out first that the objections are in effect that these documents are not admissible in law. Let me state too that, it is the duty of a judge to expunge totally inadmissible evidence at the point of writing judgment – see Bredero Nigeria Limited v. Shyantor Nigeria Limited & Ors. (2016) LPELR-40205 (CA) 30, paras. C-E. The first duty of a judge is to ascertain in civil cases whether the plaintiff/claimant had discharged the burden of proof placed on him. It is only after this that it becomes necessary to go into the case of the defendant. This, the judge has to do whether or not the defendant filed a written address. And the judge does this by examining the evidence adduced in support of a case. The type of case determines the type of evidence. This is an originating summons where evidence is by affidavit and documents. These documents were attacked. On the issue of not being properly endorsed by the Commissioner for Oaths, let me not waste time on it, by quoting from a previous decision of this Court in Suit No. NICN/OW/2017 – The Registered Trustees of Self Employed Commercial Drivers Association, Abuja v. National Union of Road Transport Workers & Ors [delivered 28/02/2018] at p. 12, para. 3:

“The decision in South-Eastern case, it is clear, does not support the Court of Appeal’s decision that once the document attached to an affidavit is not marked as an exhibit it becomes inadmissible. Rather, it makes a distinction between a document merely referred to in an affidavit but not annexed to it, which is the one that needs the certificate to mark it distinctly as a particular exhibit. In the other situation, the document may be tendered, by exhibiting it or attaching it with, the affidavit in question. Under this situation, it is not required that the document be marked as a particular exhibit. It is sufficient if it is properly introduced in the paragraph by which it is exhibited in the affidavit as a particular exhibit, since, in this sense, to ‘exhibit it with the affidavit’ means ‘to attach or annex it with the affidavit’ and not ‘to mark the document itself’. It is clear that it is not the marking of the exhibit itself that identifies it as an exhibit but rather the accurate introduction of it in the affidavit. If it were merely marked as a particular exhibit without being accurately identified in the affidavit, would it be relevant? The answer is no. That is exactly why the Supreme Court rejected the document in the above case because it was vaguely introduced in the affidavit. The hallmark of the Supreme Court’s decision is that the document must be sufficiently identified to obviate any ambiguity as regards its particularities.”

The documents in issue were sufficiently identified to obviate any ambiguity – see para. 3 of the affidavit in support. They are therefore not affected by the mere failure of the Commissioner for Oaths to endorse them.

I move to the issue of the documents not emanating from proper custody and that of not being properly certified. The two go hand-in-hand. In resolving these two joint objections I rely on Okafor v. Okafor & Ors (2014) LPELR-23561 (CA) 41, paras. C-G, where the Court of Appeal held on similar situation that:

“Exhibit Q is the undertaking allegedly given by the appellant. On the face of the document, it is apparent that it was given to the police. It is therefore a public document under sections 102(a) of the Evidence Act. By virtue of sections 89(e) and 90(1)(c) of the Evidence Act, only a certified true copy certified in accordance with the provisions of section 104 of the Evidence Act is admissible.

The wordings of section 104 of the Evidence Act is very clear and unambiguous, it is only an officer who has custody of the original and who in the ordinary course of his official duty is authorized to deliver copies of the document or who has custody of the document who can certify a public document. I am of the view that the appropriate officer who should have certify exhibit Q is the police officer who normally keeps custody of such documents. Such certification would have raised the presumption of genuiness in favour of the document.

In my view, exhibit Q is inadmissible and ought not to have been admitted.”

Similar view was earlier held in Uduma v. Aruns & 14 Ors (2010) LPELR-9133 (CA) 105, para. E-F where the Court of Appeal held that: “…the documents being uncertified by the custodian of the original – 3rd respondent would be regarded as documentary hearsay and rendered inadmissible as evidence. The law is that it is the duty of this court as an appellate court is to disregard and expunge inadmissible evidence…” Apart from exhibits A-2 to A32, all the other exhibits, which are:  A1, A33 – A58, A60 – A75, A80 – A88, A91 – A104, A107, A109 – A123, A126 – A146, and A148 – A149 were certified at the High Court of the FCT, Abuja. All these documents, which were mainly photocopies of certificates of return, were public documents emanating from Abia State Independent Electoral Commission and the affidavits amongst them from the High Court of Abia State. Exhibits A89, A105, A106, and A147 were not certified at all. Exhibits A59; A78, A79, A108, and A125 did not indicate the essential details of certification; exhibits A76, A90, and A124 are not readable. I found that, paragraph 3 of the affidavit in support of the Amended Originating Summons deposed that exhibits A1 – A150 were attached as certificates of return and affidavits of return. But in actual fact only 149 exhibits were exhibited. The A149 was rewritten as A150. When you take 31 from 149, it gives a balance of 118. Ten of these 118 were either not certified at all or not readable, leaving a balance of 108. On the ones not readable, I don’t think there is any argument on the fact that they have no evidential value and likewise the ones not certified at all.

Now, the rest of these documents were certified at the High Court of the FCT, Abuja, whereas they emanated from the Abia State Independent Electoral Commission and High Court of Abia State. No explanation was offered as to why the documents that emanated from the public authorities of Abia State and which original, logically would be domiciled with these Abia State public authorities, as the property custody, found their way to High Court of the FCT, Abuja to be certified. They are accordingly caught by Okafor v. Okafor [supra] and therefore not admissible at all and liable to be discountenanced as if they were never tendered. They are hereby expunged from the record. It leaves 31 documents dully certified as required by law.

What then is the effect of the expunction or discountenancing of the 118 documents? I have held earlier on that this is a declarative or declaratory action. The law is that a claimant must prove his case in declarative or declaratory actions and cannot rely even on the admission of the defendant to succeed – see Dumez Nigeria Limited v. Nwakhoba & Ors. (2008) LPELR-965 (SC) 13-14, paras. F-F and Arewa Textile Plc v. Finetex Limited (2002) LPELR-5361 (CA) 12-13, paras. G-C. These documents are the certificates of return of the claimants as elected officers and are, as such, vital to the case of the claimants. They cannot therefore rely on the admission of the defendants. Since they have been declared inadmissible, it follows that the 118 claimants failed to prove their case. The case of the 118 claimants as identified with their exhibits and listed above is hereby dismissed. Only the 31 claimants with properly certified certificates of returns therefore prove their case and would succeed to the reliefs claimed if my decision on the NPO is overturned on appeal. This is because the defendants have no counter affidavit before the Court; they are therefore deemed to have admitted all the depositions in the affidavit in support of the Amended Originating Summon in addition to vital documents showing that the 31 claimants were duly elected as claimed and their tenure truncated without pay off. I award no cost.

Judgment is accordingly entered.

…………………………..

HON. JUSTICE O.O. AROWOSEGBE

Presiding JUDGE

OWERRI DIVISION

NATIONAL INDUSTRIAL COURT OF NIGERIA

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