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Barr. Chijioke Onuora & 2 Ors -VS-.Attorney-General of Anambra

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

 

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

 

DATE: THURSDAY  23RD JANUARY  2020   SUIT NO.NICN/EN/34/2019

 

 

BETWEEN:

  1. BARR. CHIJIOKE ONUORA
  2. BARR. MICHEAL OKUOSA NDULUE
  3. MR. EZENWANKWO PETER

(For themselves and on behalf of all the Immediate

Past Secretaries of Local Governments in Anambra      CLAIMANTS

State who served State who served from 2014 to 2017,

whose  Outstanding Entitlements andBenefits are

still being owed by the Defendants)

 

AND

 

  1. Attorney-General of Anambra State
  2. Chairman, Anaocha Local Government
  3. Chairman, Ayamelum Local Government
  4. Chairman, Dunukofia Local Government
  5. Chairman, Ihiala Local Government
  6. Chairman, Njikoka Local Government
  7. Chairman, Ekwusigo Local Government
  8. Chairman, Nnewi South Local Government
  9. Chairman, Oyi Local Government

10.Chairman, Onitsha North Local Government

11.Chairman, Onitsha South Local Government       DEFENDANTS

12.Chairman, Awka South Local Government

13.Chairman, Awka North Local Government

14.Chairman, Orumba North Local Government

15.Chairman, Orumba South Local Government

16.Chairman, Ogbaru Local Government

17.Chairman, Idemili North Local Government

18.Chairman, Idemili South Local Government

19.Chairman, Anambra West Local Government

20.Chairman, Anambra East Local Government

21.Chairman, Aguata Local Government

 

 

APPEARANCES:

  1. C.H. ONWUEMENE – FOR THE CLAIMANTS.
  2. M.J. OPUTA, WITH GIDEON UGWUANYI – FOR THE DEFENDANTS.

 

JUDGMENT

INTRODUCTION

This suit was commenced by way of Originating Summons 25/06/2019. The questions set down for trial are:

  1. WHETHER the refusal or the failure of the Defendants to pay the Claimants their outstanding allowance [sic] and all entitlements/benefits being owed to them is not a breach of the Anambra State Public Officers’ Salaries Law 2007 (ANHA/LAW/2007/10).
  2. WHETHER the abrupt disruption of the Claimants’ tenure of office is not contrary to the Anambra State Local Government Law 1999 and the Local Government (Amendment No. 8) Law 2014.

 

Upon these questions, the following reliefs were claimed:

  1. A DECLARATION that the Claimants are entitled to their outstanding unpaid salaries, entitlements and other fringe benefits as appointed ex secretaries who served in their respective local government councils from 2014 to 2017 by virtue of the Anambra State Public Officers’ Salaries Law 2007 (ANHA/LAW/2007/10).
  2. A DECLARATION that the refusal by the Defendants to pay to the Claimants their entitlements as contained in the Anambra State Public Officers Salary Law 2007 (ANHA/LAW/2007/10) is illegal and unconstitutional.
  3. AN ORDER directing the 1st-21st Defendants to pay each of the Claimants their outstanding entitlements and benefits in the sum of Fourteen Million, Nine Hundred and One Thousand, Five Hundred and Eighty-Seven Naira, Fifty Kobo (14,901,587.50k).
  4. AN ORDER directing the 1st to the 21st Defendants to pay the cost of this suit which stands at N100,000,000.00 (One Hundred Million Naira Only).

 

PROCEEDINGS

This matter was one of the six sister cases with similar facts. The first in the series being NICN/EN/31/2019 – Hon. Obi Okechukwu & 2 Ors v. AG of Anambra State & 20 Ors[Judgment delivered 12th December 2019]. Let me sound the notice that constant references would be made to the first in the series as stated above. Being of identical facts, it is in fact the principal authority on which this case is decided and should be treated as an integral part of this case.

This matter came up together with the first in the series on 23rd October 2019 and was adjourned, in the first in the series, to 15th November 2019 for definite hearing. The Court also gave a directive via the first in the series that the claimants’ counsel should provide the defendants’ counsel with an address for service within jurisdiction before leaving Court that day. The matter came up as adjourned on 15th November 2019 together with the other sister cases. It could not go on and was adjourned for reasons fully treated in the first in the series to 22nd November 2019 [see p. 3 thereof].

On the 22nd November 2019 it came up, the application of the learned counsel to the defendants: M.J. OPUTA to regularise their processes was granted in the first in the series and the order as to cost was also made applicable to this case as the others in the series. The learned counsel to the defendants equally urged the Court to make applicable to this case and the remaining ones the applications earlier made in the first in the series. The learned C.H. ONWUEMENE for the claimants did likewise with regard to his opposition to the applications of the learned counsel to the defendants. The Court thereafter reserved its rulings to the judgment. Thereafter, the learned counsel to both sides adopted their respective processes with respect to the Notice of Preliminary Objection [NPO] and the substantive suit and prayed the Court to make applicable their submissions in the first in the series to this case. Thereafter, ruling and judgment were reserved to 5th December 2019. As it was not ready on this date, it was adjourned sine die; and when it became ready, this date was communicated to the learned counsel to both sides. That is all regarding proceedings before the Court. I move to the written addresses of counsel to the parties.

 

 

 

WRITTEN ADDRESSES OF THE PARTIES

  1. Address of the Claimants

FUNMI FALANA franked the claimants’ written address in support of the originating summons. The learned counsel submitted two issues for the determination of the Court, to wit:

  1. Whether by virtue of the Local Government Law 1999 and Local Government (Amendment No. 8) Law 2014; Anambra State Public Officers’ Salaries Law, 2007; and other the [sic] relevant Laws the defendants have right to withhold and refuse to pay the Claimants their outstanding allowances and benefits.
  2. Whether the purported termination or dissolution of the Anambra State Local Government Public/Political Office Holder tenures of office was not in violation of the provisions of sections 51(3) of the Local Government Law 1999 and Local Government (Amendment No. 8) Law 2014, and thereby unlawful, illegal, ultra vires, null and void and of no effect whatsoever.

 

Under issue 1, the learned counsel submitted that, because, the claimants served the defendants’ Local Governments between 2014 and 2017, as political office holders, they are entitled to be paid their entitlements. The learned counsel referred to tables 4, 6 and 8 of the Anambra State Public Officer’s Salaries Law 2007 [ASPOSL 2007] of Exhibit A as justifying the sum of 14,901,587.50kfor each of the claimants. The learned counsel submitted that, Anambra State refused to pay these monies and instead diverted them to electioneering. The learned counsel cited Okara v. Ndili (1989) 4 NWLR (Pt. 118) 700;AG Lagos State v. AG Federation (2005) 2 WRN 1; INEC V. Musa (2002) 11 NWLR (Pt. 778) 223; Local Government Law 1999 [ASLGL 1999]; Local Government (Amendment No. 8) Law [ASLGAL No. 8, 2014]; and ASPOSL 2007 to the effect that, the courts have the vires to declare ultravires, arbitrariness of public officers, where it is proved that, they disobeyed the law. The learned counsel urged the Court to resolve issue 1 in favour of the claimants and moved to issue 2.

Under issue 2, which is on the illegality of the dissolution of the Local Government, the learned counsel submitted that, the tenure of the claimants ran from 2014-2017 and not 2014-2016, as erroneously conveyed in some of the letters sent to the defendants. The learned counsel pointed out that, the ASLGAL No. 8, 2014 at page 20, paragraph 3 gives tenure of three years post-inauguration of the Local Government Councils. The learned counsel argued that, the tenure of the claimants was truncated at two years in office. The learned counsel submitted that, it was for this reason that, the claimants claimed for their arrears of salaries and severance packages. The learned counsel cited Eze & Ors v. Gov. of Abia State & Ors (2014) LPELR-23276, 25, B-D, to the effect that, when the tenure of office of elected public officers are truncated against the provisions of the law, the courts would award their full salaries and allowances for the unexpired period, as damages.

The learned counsel submitted that, the tenure of the claimants, as public officers, is governed by section 51(3) of the ASLGL 1999 and ASLGAL No. 8 2014; and as such, could not be truncated midway. The learned counsel cited Fakuade v. OAUTH (1993) 5 NWLR (Pt. 291) 47 and a host of other cases. The learned counsel submitted that, since the claimants’ tenure was truncated illegally; issue 2 should be resolved in favour of the claimants and against the defendants. The learned counsel further cited Government of Ekiti State & Anor v. Ojo & ORS 121-122 [sic], G-H; Olaniyan & Ors v. University of Lagos without further details; and Shitta Bay v. The Federal Civil Service Commission (1981) 1 SC 40. The learned counsel finally urged the Court to enter judgment in favour of the claimants. I shall now proceed to the written address of the defendants.

 

  1. Defendants’ Written Address Against the Originating Summons

ONYINYE ANUMONYE franked the defendants written address against the originating summons. The learned counsel treated the NPO first. The learned counsel stated the grounds of the NPO as follows:

  1. The Claimants failed to serve pre-action Notice on the Defendants as required by law.
  2. This suit is an abuse of process in that the Originating Summons proceeding is not the appropriate mode of initiating the action the subject matter of this suit.

 

Under ground 1 of the objection, on non-service of pre-action notice, the learned counsel argued that, Exhibits E1-E21, which the claimants claimed are the pre-action notices issued, have no connexion with the claimants. The learned counsel submitted that, they were not validly issued in accordance with section 11(2) of the Anambra State, State Proceedings Law, 1999 [ASSPL 1999], as no pre-action notice was issued on the defendants, as public officers. The learned counsel submitted that, the contents of Exhibits E1-E21 do not support the fact that, they were served on the defendants. The learned counsel opined that, the said pre-action notices did not show that they were filed at the High Court of Anambra State.

The learned counsel submitted that, by virtue of a practice direction issued by the Chief Judge of Anambra State, pre-action notices must first be filed in Court before service on the officers affected. The learned counsel submitted that, where a statute directs the manner of doing a thing, such prescription must be followed to the letter and cited Unity Bank Plc v. Olatunji (2015) 5 NWLR (Pt. 1452) and some other cases to buttress this point. The learned counsel also cited NDIC v. Ette (2016) 8 NWLR (Pt. 1514) 345 at 365-366, E-F and Bakare v. Nigeria Railway Corporation (2007) 17 NWLR (Pt. 1064) 606 on the effect of failure to serve pre-action notice. There ended arguments on failure to serve pre-action notices. The learned counsel moved to his second ground of objection.

On the second ground of objection, which is on inappropriateness of commencing this action with originating summons, the learned counsel submitted that, a look at the questions formulated showed that, the claimants are not seeking interpretation of any law or document, but merely making claims for salaries and allowances. The learned counsel cited Order 3, Rule 3 of the NICN Rules and argued that, the claims of the claimants do not fall within the confines envisaged therein. The learned counsel submitted that, the claimants did not specify the period for which they were being owed and that, as such, the hostile nature of the suit is manifested. The learned counsel contended that, because, the counter affidavit contended that the salaries had been fully paid, the hostile nature of the facts become apparent; and that, this is more accentuated when the defendants also contended that, the claimants had waived their right to full benefits through their nominated leaders. The learned counsel cited Olley v. Tunji (2013) 10 NWLR (Pt. 1362), B-C [sic] on the law that, originating summons does not contemplate hostile facts.

The learned counsel submitted that, the doctrine of abuse of process is hydra-headed and that, employment of improper mode to commence suit is one of them. The learned counsel submitted that, where a court comes to the conclusion that, improper mode was used to commence a suit, the proper order is one dismissing the suit and cited C.O.M. Inc. v. Cobham (2006) 15 NWLR (Pt. 1002) 283 at 303; Saraki v. Kotoye (1992) 9 NWLR (Pt. 284) 156 at 189.  The learned counsel cited Odukwe v. Achebe (2008) 1 NWLR (Pt. 1067) 40 at 57 to 758 [sic], to the effect that, the suit was struck out for being wrongly commenced via originating summons. There the learned counsel ended his arguments on the NPO; and urged the Court to uphold the NPO. The learned counsel thereafter moved to his address on the substantive suit.

Arguing against the substantive suit, the learned counsel formulated one issue, to wit: “whether the Plaintiff [sic] is entitled to the reliefs sought in this case” and submitted that, the claimants are not entitled to the reliefs sought because, they failed to specify the period for which they were owed. The learned counsel argued that, the claimants based their claim of three-year tenure on a law was repealed before their tenure commenced, and that, the amendment stipulated two-year tenure. The learned counsel relied on Anambra State Local Government Law (Amendment No. 5) 2011 [ASLGLA No. 5, 2011]. The learned counsel submitted that, arising from the foregoing, issue No. 2 of the claimants has no pedestal to stand and must be dismissed. The learned counsel submitted that, the reliefs claimed, being declaratory in nature, the claimants must rest on the strength of their case and not on the weakness or admission of the defendants. On this, the learned counsel cited CPC v. INEC (2011) 18 NWLR (Pt. 1279) 493 at 554, F-H.

The learned counsel submitted that, the claimants annexed no documents to support the fact that; they were PAYE or to show that, they were entitled to severance packages. The learned counsel argued that, the defendants, having exhibited documents to show that, the claimants have been paid their full negotiated benefits, they are estopped by the doctrine of waiver to ask for their original full benefits and cited Auto Import Export v. Adebayo (2005) 12 SC (Pt. 11) 74 at 125-127; Ariori v. Elemo (1983) 1SC 13 at 48-49 and a host of other authorities. The learned counsel further cited Olatunde v. Obafemi Awolowo University & Anor (1998) 5 NWLR (Pt. 567) 178 on the factors that ground waiver; and that, these conditions were fully satisfied in the waiver being claimed. The learned counsel also cited Saraki v. Kotoye (1990) 4 NWLR (Pt. 143) 144 and other cases on the irreversible steps that input waiver on a complainant.

The learned counsel submitted that, exhibits A1-A3 are incomplete copies of the law relied on, while together with exhibits B, C1-C2, D and E1-E21 are also inadmissible because, they are uncertified copies of public documents, relying on sections 87-90(1)(c), 102, 104(1)-(3), 105 of the Evidence Act. The learned counsel submitted that, being totally inadmissible in law, failure to raise objection timeously cannot save them and cited Hassan v. Maiduguri Management Control (1991) 8 NWLR (Pt. 212) 738; Eme v. Wamuoh (1991) 8 NWLR (Pt. 203) 375 and; a host of other authorities. The learned counsel submitted that, it was immaterial that they were annexed to affidavit and cited Delta State Hoise [sic] of Assembly & Anor v. Democratic Peoples Party (2014) LPELR-28808 (CA) and another authority. The learned counsel submitted further that, exhibits C1-C2 and E1-E21, having being stamped received, become public documents in virtue of having being received by public officers and ought to be certified to be admissible in evidence. The learned counsel cited Afolabi v. Alaremu (2011) LPELR-8894 (CA) and another case on this point. The learned counsel submitted that, once these documents are rejected, the case of the claimants is dead and cited CPC v. INEC (supra) and submitted that, the claimants therefore failed to prove their case. On the basis of the above, the learned counsel submitted that, the case ought to be dismissed; and in concluding the address, urged the Court either to uphold the NPO or dismiss the case.

That ends the address of the defendants against the originating summons, let me now turn to the reply filed by the claimants against the NPO and the substantive address of the defendants.

 

  1. Claimants’ Reply to the NPO and RPL

JONAS O. UDENSI franked the Claimants’ two addresses rolled into one. Replying to ground 1 of the NPO, which is on failure to serve pre-action notice, the learned counsel submitted that, pre-action notice is not a court’s process and cited Ntiero v. NPA (2008) LPELR-2073 SC, 11, B-C to the effect that, pre-action notice is in form of a letter written either by the claimant or his solicitor; and urged the Court to discountenance the defendants’ counsel’s argument that, it must be filed in court. The learned counsel submitted that, the decision of the Supreme Court in Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 76 suggests that, it is not necessary that pre-action notice be in a particular format, once it contains enough materials to enable the defendant to exercise his discretion either to settle or go to court. The learned counsel submitted that, the claimants herein have substantially complied with the law in relation to the service of pre-action notice. The learned counsel thereafter moved to ground 2 of the objection.

Arguing ground 2, which is on the inappropriateness of commencing the suit via originating summons, the learned counsel submitted that, the suit was properly commenced via originating summons in that, it principally sought to construe whether the refusal of the defendants to pay the claimants their full entitlements is not in breach of the ASPOL 2007 and, whether the truncation of their tenure midway, is not contrary to ASLGAL No. 8, 2014. The learned counsel submitted that, therefore, there could not be substantial dispute of facts in the affidavits of parties, as the case is centred on interpretation of written law. The learned counsel cited Jimoh v. Olawoye (2003) 10 NWLR (Pt. 828) 307 and other cases. The learned counsel argued that, there is no logic in the attempt of the learned counsel to the defendants to input that conflict arises from Exhibit B of the affidavit in support because, the claimants have shown that, monies meant to settle the claimants’ entitlements were siphoned between the chairmen and the state government and the first page of Exhibit B shows that, the agreement was between the chairmen and state government. The learned counsel argued that, paragraph 9-11 of the further affidavit showed that, the claimant only received the money as palliatives to assuage their anger; and that, there was no authorization given to anybody to negotiate on behalf of the claimants.

The learned counsel argued that, the real issue to be tried is, as to the tenure of the claimants and whether, based on the relevant laws, they were entitled to salaries and severance benefits. The learned counsel cited FAMFA Oil Ltd v. AG Federation (2003) 18 NWLR (Pt. 852) 453 to the effect that, originating summons is employed for the construction of documents, instruments and written laws, as in this case; and argued that, Emezi v. Osuagwu & Ors (2005) ALL FWLR (Pt. 259) and two other cases fully support the commencement of this suit via originating summons. The learned counsel thereafter argued that, in the event that the Court comes to the conclusion that, the suit ought not to have been commenced via originating summons, the appropriate thing is to order pleadings; and not to dismiss or strike it out. On this, the learned counsel cited Jev & Ors v. Iyortyom (2014) LPELR-23000 (SC). The learned counsel argued that, enough documents abound to resolve whatever conflicts there may be apparent in the affidavits of parties, and as such, there would be no need to order pleadings. The learned counsel ended his address on ground 2 of the NPO by urging the Court to resolve it in favour of the claimants. There ended the reply of the learned counsel to the claimants on the NPO. Thereafter, the learned counsel moved to the RPL to the substantive address of the defendants.

On the issue of waiver, the learned counsel submitted that, it is not true that the claimants accepted N500,000 in full payment of their entitlements and that, neither did they appoint anybody to negotiate on their behalf, but that, the N500,000 was paid, in order to stop them from protesting proximate to the re-election bid of the Governor. The learned counsel argued that, by the relevant paragraphs of their further affidavit, the claimants had denied paragraphs 9-11 of the counter affidavit of the defendants, where these allegations were contained; and that, all the cases cited were irrelevant. The learned counsel argued that, there was no meeting of minds, as to the purpose of the money received by the claimants. The learned counsel also submitted that, the purpose and reason for the payment were afflicted with misrepresentation, fraud and mistake. The learned counsel submitted that, the purpose and reason for the payment, having been tainted with fraudulent misrepresentation, is void and, cited Afegbai v. AG Edo State & Anor (2001) LPELR-, 53, A-D.

On the issue of placing reliance on repealed law, the learned counsel submitted that, the argument that the claimants relied on abrogated law for their claim is not right, in that, the purported amendment: ASLGLA No. 5, 2011, which was cited by the defendants, was only a bill proposing two-year-tenure and that, the substantive laws, remained as cited and exhibited in A1-A3, paragraphs 4-11 and exhibits A-A25 of paragraph 12 of the affidavit. The learned counsel also cited Eperokun v. University of Lagos (supra), Governor Ekiti State v. Ojo (2007) 16 WRN 56, Obu v. NNPC (2003) WRN 76 and WAEC v. Obisesan (2008) 26 WRN 120 at 135, and ended on this issue.

On the issue of non-certification of public documents, the learned counsel submitted that, once a public document is attached to affidavit, it escapes the snare of certification for admissibility; and cited Governor Kwara State & 2 Ors v. Irepodun Block Manufacturing Compnay & Ors (2013) 12 WRN; Ojuya v. Nzeogwu (1996) 1 NWLR (Pt. 427) 713; CRPD & Invest. Co. Ltd v. Obongo (2000) 89 NWLR (Pt. 670) 751 at 765; and Bature v. Savanah Bank Nig. Ltd (1998) 4 NWLR (Pt. 548) 438 444. The learned counsel also prayed the Court to invoke the provisions of section 12 of the National Industrial Court Act 2006 [NICA] and Order 5, Rule 6(3) of the NICN Rules to countenance these exhibits and discountenance the technical objection. The learned counsel cited Kubor v. Dickson (2013) 26 WRN 15 to the effect that, courts should be more interested in substantive justice than technical points. The learned counsel submitted that, in the light of the arguments canvassed, the cases cited by the learned counsel to the defendants are most irrelevant. In finality, the learned counsel urged the Court to grant the reliefs claimed by the claimants.

That will be the end of summary of the addresses filed. I say ‘that will be the end of the summary of the addresses filed’ not because, there is no further address filed but because, I am of the opinion that, I am not bound to take cognisance of these further processes. I shall give my reasons anon. The next thing is to give my decision. My decision shall be broken into two parts. Part A shall deal with the preliminary issues: the NPO and my reasons for declining to take cognisance of the further processes filed by the defendants. Part B shall deal with the merits of the substantive suit, if ground 2 of the objection fails; but any way, if only ground 1 of the objection fails, in order for the Court of Appeal to have the benefit of my opinion on the merit of the case, in case my verdict on ground 1 of the objection fails.

In line with established tradition, I hereby state that, I have carefully read and digested all the processes filed in this case. I take full cognisance that this is originating summons, where affidavits take the place of pleadings and evidence rolled into one. And for this reason, I have taken cognisance of the rules laid down for resolving conflicts in affidavit. I have also noted that, I did not summarise the contents of the affidavits filed by the parties, but nonetheless, I have carefully read and digested their contents. My references to their contents in the course of this judgment will bear this out. Off to my decision I go.

 

COURT’S DECISION

  1. Preliminary Decision

I rely on the first in the series of the sister cases: Suit No. NICN/EN/31/2019 – Hon. Okechukwu & 2 Ors v. AG Anambra State & 20 Ors[Judgment delivered 12th December 2019]. This is the major authority on which my decision in this judgment shall be based because; the facts of both, with minor variations of nomenclature of the claimants and the sum claimed,are identical and the counsel to both parties have equally adopted their arguments and applications therein, in respect of this case.

I take the issue of the application by the learned counsel to the claimants to deem, as properly filed and served, the further affidavit and reply on points of law [RPL] filedand served out of time. I take note that the learned counsel adopted the application made in the first of the cases in the series [supra] with respect to this case. It must be noted, like I said therein that, the learned counsel did not make oral or written application for extension of time and leave to deem the processes filed out of time as properly filed and served. The learned counsel merely and presumptuously asked the Court to deem them as properly filed and served. I abide my decision in the first in the series of sister cases [supra] – see p. 14-15 thereof. Relying on my reasoning and conclusions therein, I take cognisance of the said processes with an order that the learned counsel to the claimants personally pay the default fee, latest the very next day to the delivery of this judgment.

Be that as it may, I come to the issue of further counter affidavit and written address filed by the defendants. I observe that the rules of this Court did not provide for these processes and that, they could only be filed with leave of court sought and obtained. Leave was not sought and obtained to file them. Relying on my decision in the first of the sister cases [supra], I discountenance them, except that, I countenance the Exhibit A therein attached [ASLGLA No. 5, 2011] – see p. 15-19 thereof. I now take the NPO.

I shall be brisk on the NPO. I note that the learned counsel to the parties adopted their submissions in the first of the sister cases supra. I too, I adopt my reasoning, findings and decisions therein – see p. 19-22. I therefor dismiss the NPO filed against this suit. I move to my decisions on the substantive suit.

 

  1. Decision on the Merit of the Case

In deciding this aspect of the case, I adopt the two issues formulated by the learned counsel to the claimants but take notice of the lone issue formulated by the learned counsel to the defendants, which raises a primary question to be answered before proceeding to the two questions formulated by the learned counsel to the claimants. This I do because, it is the primary duty of the claimants in originating summons to formulate questions to be answered. The lone issue of the learned counsel to the defendants is: “whether the claimants are entitled to the reliefs sought in this case.” This issue clearly suggests that a claimant might frame good questions or issues to be addressed in originating summons, yet not be entitled to the reliefs claimed, by reason of lack of evidence supporting the reliefs.

This case asked essentially for declaratory reliefs. So, the first thing is to find out if the claimants have proved their case as required by the law of declaratory actions. Once it is found that there is lack of cogent and compelling evidence in proof thereof, the claimants fail. This is because,a claimant wins in a declaratory action based on the strength of his case and not on the weakness of the defence. Hence, I will first find out if the claimants herein adduced sufficient evidence in proof of their case.

I make brisk to state that, I have searched through the entire file and could not find that, for once, the claimants stated the date of their appointment as secretaries. I could also not find that they exhibited their letters of appointment as such. I equally could not find that they adduced evidence with regard to the date they were terminated or removed from offices. Yet, basically this case is on disputed tenure. How do they induce belief in the absence of these vital pieces of evidence that could effectively prove their tenure! The case fails simply for failure to tender vital documents that could prove the assertion made – see Okomu Oil Palm Company Limited v. Iserhienhien (2001) LPELR-2471 (SC) 8-9, E-C and Morohunfola v. Kwara State College of Technology (1990) LPELR-1912 (SC) 15-16, C-C.

Courts of law, being strangers to disputes between parties, only know anything through the evidence presented by parties and where a party fails to present evidence of the requisite quantity and quality, his case fall flat, more particularly so,in a matter seeking declaratory reliefs – see Nwoga v. Imo State Independent Electoral Commission & Ors (2019) LPELR-47562 41-43, E-B; Chukwuma v. SPDCN (1993) LPELR-864 (SC) 64-65, G-B; and SPDC Ltd v. Frontline Television Ltd (2011) LPELR-4952 (CA) 10-11, D-A. It is clear that this suit offends all the preconditions for the grant of declaratory reliefs. It also offends the principles on which actions commenced via originating summons could thrive – see Order 3, Rule 17(1)(b) of the NICN Rules, which prescribes that vital documents be exhibited to succeed in originating summons. Thus, sufficient evidence is not placed before this Court to grant the declarations sought. Declaratory reliefs are only granted on the strength of the claimant’s case and not on the weakness of the defence.

It should also be noted that, the consequential reliefs sought in this case are special damages, which must be particularised and proved to the hilt. The claimants also failed in their responsibilities in this regard. With the absence of relevant documents to determine the date the claimants were appointed as secretaries and the date they were terminated, it is virtually impossible to determine the issue of the allowances and benefits claimed in an action based on contested tenure. Failure to prove the tenure is failure to prove entitlement to the allowances tied to the tenure claimed. If the Court comes to the conclusion that the claimants are entitled to two-year tenure and not three, how does it severe the allowances? The Court of Appeal has succinctly stressed the need to sufficiently particularise special damages to succeed – seeAdama Beverages Limited v. Akam & Ors (2015) LPELR-40417 (CA) 27-28, B-C; and especially Union Bank PLC v. Onuorah & Ors (2007) LPELR-11845 (CA) 15-16, B.

Curious enough, the claimants were even ambivalent on their tenure. In one of the Exhibit B series, a document headed “Leaders’ & Deputy Leaders’ Forum” written to the President of Nigeria, which is at page 48 of file, the first paragraph thereof reads:

“We respectfully write you on behalf of the immediate past Legislative Council Leaders and Deputy Leaders of the twenty local government areas of Anambra state [sic] to reiterate the needs to pay our backlogs of our unpaid salaries and entitlements accrued during our tenure of office (2014-2016) as stipulated in in the Anambra State Public Officers’ salaries law [sic]…” [Underline supplied for emphasis]

 

From the above, it is clear that the claimants earlier accepted they had two-year tenure. Likewise, in the letter of demand written on behalf of the claimants by their solicitor and dated August 27, 2018 [p. 49-51 of file], the claimants accepted two-year tenure only to recount this, as an error in a subsequent letter by the same solicitor dated November 12, 2018 [p. 52-53 of file] without any explanation whatsoever, as to how the error arose.Likewise, in another petition to the House of Representatives Committee on Public Petition [Exhibit D] at p. 57-60 of file, at paragraph 11, line 4 thereof, the claimants stated clearly that they “served between 2014-2016”. Surprisingly, in the affidavit in support of the originating summons, at paragraphs 3 and 4, the claimants now brazenly claimed that, they served “their respective local governments of Anambra State from 2014-2017…” This barefaced contradiction was further repeated in paragraphs 14 and 15 of the same affidavit without any explanation of their contradiction with the documents adduced. It has been held in Ekweozor & Ors v. The Registered Trustees of Saviours Apostolic Church of Nigeria (2014) LPELR-23572 (CA) 59-60, F–A that:

“Where a witness gives contradictory evidence on the same issue, the Court is not in a position to choose one and reject the other, the two pieces of evidence must be rejected and such a witness is not capable of being believed.”

 

A mistake consistently made, even up to the point the claimants briefed their solicitor and he wrote on their behalf, needs more than merely saying it is a mistake without further explanation, to convince the Court that it is truly a mistake. It must be noted that, there is no iota of other documentary evidence to prove otherwise than that, the claimants had only two-year tenure, yet the claimants deposed in their affidavit in support of the originating summons that they had three-year tenure. Thus, it is as clear as daylight that, there is serious contradiction of substantial nature in the pieces of evidence adduced on the tenure of the claimants; and since the Court cannot choose between the two pieces of contradictory evidence on the same issue, the Court is bound to reject the evidence on the correct tenure, meaning that, the claimants failed to prove their tenure. In a nutshell, since the claimants are ambivalent about their tenure and did not exhibit any document to show when their tenure commenced and when it ended, they could not be heard to claim any tenure-related reliefs [payments]. To be entitled, their tenure must first and foremost be established to the satisfaction of the Court. And they failed woefully in these regards. In any case, the claimants too, did not even establish that they were appointed as secretaries.

Thus, even if the Court strangely finds for the claimants in the declarations sought, it would still not have been possible to grant the special damages sought, which were not proved as required by law. It is thus clear that, the case could not have succeeded, even if the defendants had not filed any response, as the claimant simply failed to prove their case. Having reached this conclusion, it is ordinarily unnecessary for me to proceed further in this case before dismissing it, but in case the Court of Appeal finds my reasoning above defective, for the sake of completeness, I rely on the first of the sister cases: Hon. Okechukwu & 2 Ors v. AG Anambra State & 20 Ors[supra] p. 23-34 for a resolution of the other issues connected with the merits of this case and for the fuller reasons adduced to arrive at my decision dismissing this suit.

Let me add to the issue of accord and satisfaction raised by the defence,the claimants, who claimed they didn’t nominate anybody to negotiate on their behalf, didn’t say how they came by the N500,000 payment made to each of them, purportedly to dissuade them from protest and to support the second term bid of the governor: whether the negotiations were done with all of them en bloc or in their individual capacities. They accepted there were negotiations when they claimed the payment of N500,000 was made to dissuade them from protest and to support the second term bid of the governor. I wonder whether it is even legal to collect money to give political support. Nevertheless, for our purposes here, the important thing is that, they failed to state how these negotiations were done. Note that, the protest never took place to enable them be met en bloc.

In any case, they never claimed they were met en bloc. From this, it is certain that, a sort of negotiation took place, but how exactly it was carried out, is left blank! And with the huge number of people involved in the six cases, involving all the members of all the local governments in the state, more particularly so, after they had left offices, it seems certain that, negotiations for the payment of N500, 000 could not have been done with all the claimants, either collectively or individually. It seems more certain that, negotiation of whatever must have been done through representatives of sort. Note that the claimants herein did not say they set out to protest as secretaries alone, but all the people allegedly owed.

Thus, the claimants, who denied flatly, having any representatives to negotiate their entitlements, yet failed to supply the details of how the N500,000 collected by each of them, ostensibly to stem demonstrations, was negotiated, and also failed to name those that negotiated it, must be taken to be economical with truth. The denial of accord and satisfaction and the collection of N500,000 without giving details regarding how it was negotiated and who the negotiators were, cannot induce belief in any reasonable tribunal or court of law; apart from amounting to ineffective denial. A court of law is not under obligation to believe utterly preposterous depositions, even if not controverted.

Let me also add this to the issue of whether the claimants had two or three year tenure. At p. 55-57 of file, is the petition on behalf of the claimants to the House of Representatives on the subject matter of this case. At the second page, the second paragraph thereof, I found this:

“From the above, the petitioner [sic] contends that since they assumed officer [sic] in the year 2014 till the expiration of their tenure in 2016, they have not received allowances as statutory [sic] provided in the Anambra State law [sic] cited above.” [Underline for emphasis]

 

From the above, it is very clear that, the claimants agreed they had two-year-tenure and that they exited at the effluxion of their tenure and not that, their tenure was truncated mid-way. The claimants’ subsequent contrary depositions that, they had three-year tenure, without any explanation whatsoever, these glaring summersaults, are a further testimony of clear case of material contradiction in their case. It amounts to their mere depositions challenging their documents containing admission against self thus, establishing a clear falsehood against them. This further supports my finding that the claimants did not prove their tenure. For total failure of credible evidence, the case is therefore liable to be dismissed. But before then, let me make a concluding remark.

 

CONCLUSION

I have noticed in this case that, the claimants placed a lot of reliance on documents that add no material value to their cause. These series of useless documents are mainly newspaper cuttings and petitions sent to bodies other than court of law. They serve no purpose other than to elicit sentiments and sensationalization. Cases are not won on the basis of sentiments but on the production of cogent and compellable evidence. Energies wasted on gathering these pieces of useless evidence should have been profitably concentrated on gathering relevant pieces of material evidence that are so much lacking in this case. And come to think of it, it is from these pieces of useless documents that evidence of material contradiction with the affidavit of the claimants was unearthed: a case of self-destruction!

Having got to this juncture, I have no option than to put an end to the life of this case, once and for all. I hereby dismiss this suit as totally lacking in merits. I decline to award cost. And judgment is entered accordingly.

 

…………………………..

HON. JUSTICE OLUWAKAYODEO. AROWOSEGBE

Presiding JUDGE

ENUGU DIVISION

NATIONAL INDUSTRIAL COURT OF NIGERIA

 

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