NSAGANE .U.S & 8 ORS -VS- HIS EXCELLENCY CHIEF EZENWO NYESO

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT.

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.

Dated: 4^th day of March, 2020 SUIT NO: NICN/PHC/140/2019

BETWEEN:

Nsagane, U. S. (Vice Chairman)
High Chief Kroham Joel (Treasurer)
Mrs. Nnenna Otis (Ex-Officio)
B. C. Wodike (Ex-Officio)
Mrs. Miller Rose, (Ex-Officio)
AbiyeWokoma, (Ex-Officio)
Chief M. B. Nwiyor (J.P) (Ex-Officio)
Alice Opuwari (Mrs.) (Secretary)

(Suing in their personal capacity as retirees; as Pensioners and as Executive Committee Members and as Representatives of Nigeria Union of Pensioners, Rivers State Local Government Branch)

Nigerian Union of Pensioners (Rivers State Local Government Branch)——————- CLAIMANTS

AND

His Excellency, Chief, (Barr.) Ezenwo Nyesom Wike

(The Executive Governor of Rivers State)

RIVERS STATE GOVERNMENT
THE HONOURABLE ATTORNEY GENERAL OF RIVERS STATE
RIVERS STATE HOUSE OF ASSEMBLY(RSHA)
RIVERS STATE LOCAL GOVERNMENT STAFF PENSIONS BOARD
RIVERS STATE PENSION BOARD ——————–RESPONDENTS

Representations:

B.O. Georgewill with F.O. Chumu for the Claimants.

Adangor with C.N. Eke and S.O. Inko for the Defendants.

Judgment.

This suit was commenced by way originating summons filed on the 18^th of November, 2019 whereby the Claimants sought the determination of the following questions:

Whether by virtue of Section 7 of the Constitution of the Federal Republic of Nigeria 1999 (as amended); Sections 1(1)(a) (b),(c)&(d); S.2(1)&(2), S.3(1),(2)&(4) and S.23(a)&(i) of the Pension Reform Act 2014 which established a Contributory Pension scheme for employee in the Public Service at all levels of Government including Local Government Councils and Sections 1(1); S.2, S.6(1) and S.10 of the Rivers State Local Government Staff Pensions Board Edict 1987, which established the Rivers State Local Government Pensions Scheme and the Rivers State Local Government Staff Pensions Board, its functions and administration, the Rivers State Local Government Staff Pensions Board is not empowered by law to exist as a separate legal entity in line with the Pension Reform Act 2014?

If the answer to question 1 above is in the affirmative; whether Sections 40(1)&(2)(d), S.43 and S.47 of the Rivers State Pension Reform Law, No. 4 of 2019 purporting to terminate the existing Rivers State Local Government Pensions Scheme and purporting to collapse the existing Rivers State Local Government Staff Pensions Board into the Rivers State Pension Board, is not inconsistent with Sections 1(1)(a),(b),(c)&(d); S.2(1)&(2), S.3(1),(2)&(4), S.23(a)&(i) and S.119 of the Pension Reform Act 2014; Sections 1(3); 4(5) and S.4(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Sections 1(1); S.2, S.6(1) and S.10 of the Rivers State Local Government Staff Pensions Board Edict 1987 and therefore null and void to the extent of its inconsistency ?

Whether the Rivers State House of Assembly (RSHA) can validly enact a Law, (Rivers State Pension Reform Law No. 4, 2019) purporting to terminate the existing structure (the Rivers State Local Government Pensions Scheme and the Rivers State Local Government Staff Pensions Board), a subject already covered by the Pension Reform Act 2014 without reference to the Rivers State Local Government Staff Pensions Board Edict 1987?

Upon a resolution of the above questions, Claimants are seeking the following reliefs:

A DECLARATION THAT, the Rivers State House of Assembly (RSHA) cannot validly enact a Law,(Rivers State Pension Reform Law No. 4, 2019) purporting to terminate the existing Rivers State Local Government Pensions Scheme and the Rivers State Local Government Staff Pensions Board which Scheme has been adequately covered and provided for under Sections 1(1)(a) (b),(c)&(d); S.2(1)&(2), S.3(1),(2)&(4) and S.23(a)&(i) of the Pension Reform Act 2014 and Sections 1(1) & (2); 6(1) and 10 of the Rivers State Local Government Staff Pensions Board Edict 1987 in line with the Pension Reform Act 2014.

A DECLARATION THAT, Sections 40(1)&(2)(d), S.43 and S.47 of the Rivers State Pension Reform Law, No. 4 of 2019 purporting to terminate the existing Rivers State Local Government Pensions Scheme and purporting to collapse the existing Rivers State Local Government Staff Pensions Board into the Rivers State Pension Board, is inconsistent with Sections 1(1)(a),(b),(c)&(d); S.2(1)&(2), S.3(1),(2)&(4), S.23(a)&(i) and S.119 of the Pension Reform Act 2014; Sections 1(3); 4(5) and S.7 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Sections 1(1); S.2, S.6(1) and S.10 of the Rivers State Local Government Staff Pensions Board Edict 1987 and therefore null and void to the extent of its inconsistency ?

A PERPETUAL INJUNCTION, restraining the Governor of Rivers State; the Rivers State House of Assembly, the Rivers State Pension Board or any other person, agency, Parastatal or department of the government of Rivers State howsoever described from acting on, implementing or giving any effect whatsoever to Sections 40(1)&(2)(d), 43 and 47 of the Rivers State Pension Reform Law, No. 4 of 2019 or enacting any Law purporting to contravene the Pension Reform Act 2014.

AN ORDER THAT, the Rivers State Pension Reform Law No. 4 of 2019 terminating the Rivers State Local Government Pensions Scheme and the Rivers State Local Government Staff Pensions Board which are schemes already covered by the Pensions Reform Act 2014 and the Rivers State Local Government Staff Pensions Board Edict 1987 is invalid, null and void and of no effect whatsoever.

The said originating summons was supported by a 25 paragraphed affidavit deposed to by one Kroham Joel and a written address.

Reacting to the originating summons, 1^st – 6^th Respondents on the 3^rd of December, 2019 filed an 11 paragraphed joint counter-affidavit deposed to by one Brian Pryde Glory-Emeh and a written address in opposition.

Upon the Claimants receiving the counter affidavit and written address of the Respondents, the Claimants on the 17^th of December, 2019 filed a 12 paragraphed further affidavit deposed to by Kroham Joel and also filed a reply on point of law.

Arising from the written address in support of the Originating summons, counsel to the Claimants, B.O. Georgewill Esq. formulated one issue for determination to wit:

Whether the Rivers State House of Assembly (RSHA) can validly enact a Law purporting to terminate the existing Rivers State Local Government Pensions Scheme and the Rivers State Local Government Staff Pensions Board which Scheme has been adequately provided for and covered under Sections 1(1)(a) (b),(c)&(d); S.2(1)&(2), S.3(1),(2)&(4) and S.23(a)&(i) of the Pension Reform Act 2014 and Sections 1(1) & (2); 6(1) and 10 of the Rivers State Local Government Staff Pensions Board Edict 1987 in line with the Pension Reform Act 2014 and Sections 1(1) & (2); 6(1) and 10 of the Rivers State Local Government Staff Pensions Board Edict 1987 in view of S.4(5) CFRN 1999 (as amended) & S.119 PRA 2014?.

In arguing the sole issue, counsel contended that there are inconsistencies in the provisions in the Rivers State Pension Reform Law No. 4 of 2019 and posited that the Federal Government of Nigeria, in other to ensure proper autonomy of Local Government administration in the Federal Republic of Nigeria in line with the three tier Federal system established a pension scheme for employees in the Public Service at all levels of Government. Counsel referred the court to Sections 1(1)(a), (b) , (c), (d) and 2(1) of the Pension Reform Act 2014.

Counsel added that the Federal Government of Nigeria then established a uniform set of rules, regulations and standards for Pension administration and payments of retirement benefits for the Public Service of the Federation (as a separate tier), the Public Service of the Federal Capital Territory, (as an independent “State”), the Public Service of the State Governments, (as the component of the Federation), the Public Service of the Local Government Councils (as autonomous sub-units within the State as created by Section 7 of the CFRN 1999 (as amended)) and even the Private Sector.

Counsel argued that Section 3(1) of the Pension Reform Act 2014 established a Contributory Pension for the payment of retirement benefits of employees to whom the Scheme applies, while he added that it is important to note that workers of the Local Government are not employees of the State Government as such, because their monthly Pensions and salaries are paid by the Local Government through the Federation Accounts.

Counsel added that by the provision of S.4(1) of the Pension Reform Act, the State Government of any State cannot merge the Contributory Pension Scheme of the State and that of the Local Government because, workers of the Local Government Councils are not employees of the State and the rate of contribution to the Contributory Pension Scheme is between an employer and employee and not employee and third party.

Counsel submitted further that provisions of Ss.(1)(a),(b),(c)(c); 2(1), 3(1),(2), (4) and 23(1)(a) & (i) of the Pension Reform Act have been hitherto implemented in Rivers State by the promulgation of Rivers State Local Government Staff Pensions Board Edict No. 6 of 1987, which was dully Gazetted under the Official Gazette of Rivers State of Nigeria No. 31, Volume 19 of 1987 and Government Notice No. 150. He added that the Law was made to take care of Local Government Pension Scheme, its administration, computation of pension and gratuity, statutory age of retirement etc, as set out in the First Schedule to the Edict and that this law is still in force and has not been repealed.

Counsel also added that Section 2 of the Law established for the Local Government Pensions Scheme a Fund known as the “Pensions Fund” and Section 6 of the Law established the “Rivers State Local Government Staff Pensions Board” which has been the body responsible for the payment of retirement benefits for the Public Service of the Local Government in Rivers State but in 2019, the Rivers State Government enacted a Law known as the “Rivers State Pension Reform Law No. 4 of 2019 purporting to collapse the existing Local Government Pensions Scheme and the Local Government Staff Pensions Board in Rivers State without regard to the Pension Reform Act 2014and with the intention of extinguishing the existing Local Government Pensions Scheme for the Public Service of the Local Government.

Counsel contended that Section 20 of the Rivers State Pension Reform Law No. 4 of 2019 established a State Pension Board and Section 43 vest the responsibilities, fund, assets or liabilities of the Rivers State Local Government Staff Pensions Board in the Rivers State Pension Board, while Section 47 provides that the Local Government Pension Board will cease to exist after 6 months from the commencement of the Law which was passed on the 31^st day of May, 2019.

Counsel submitted that the implication of the above provisions of the Law is that the Local Government Pensions Scheme will cease to exist and the Contributory Pension Scheme for the Local Government in Rivers State is also terminated and extinguished contrary to the intendment and objective of Section 1(1)(a), (b), (c), (d); Section 3(1) and 23(1)(a) & (i) of the Pension Reform Act 2014.

Counsel upon the foregoing cited the case of A.G Abia State vs. A. G. Federation (2002) 6 NWLR (Prt 763) 264@ 435 F, sections 4(5) of the CFRN 1999 (as amended) and Section 119 of the Pension Reform Act 2014 to contend that where the legislation made by a State is inconsistent with that of the National Assembly the legislation made by the State shall to the extent of its inconsistency be void.

For emphasis, counsel posited that the Rivers State House of Assembly newly enacted Rivers State Pension Reform Law No. 4 of 2019, particularly sections 40,43 and 47 which tends to collapse the already existing Local Government Pension Scheme is inconsistent with the Pension Reform Act 2014 and shall to the extent of its inconsistency be void.

Counsel concluded by urging the court to grant all the declaratory reliefs sought.

Reacting to the foregoing submissions, counsel to the Respondents, Z. Adangor (The Honourable AG Rivers State) through the written address in opposition of the Originating Summons submitted three issues for determination to wit:

(i) Whether the Originating Summons issued in this suit is incompetent and liable to dismissal by the Honourable Court same not being supported by a valid affidavit?

(ii) Whether the Rivers State House of Assembly (4^th respondent) is competent to enact the Rivers State Pension Reform Law, No. 11 of 2019 which contains provisions abrogating the 5^th respondent?

(iii) Whether the claimants have failed to make out a case to justify the grant of any of the reliefs sought?

In arguing issue one, the learned AG submitted that by virtue of Order 3, Rule 17 (1) (a) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, an Originating Summons shall be accompanied by “an affidavit setting out the facts relied upon to sufficiently identify the cause or causes of action in respect of which the claimant claims relief or remedy”. He added that a literal construction of the provisions means that evidence in support of an Originating Summons is by way of affidavit and documents exhibited thereto and that no Originating Summons can be sustained or entertained by the Honourable Court without a valid affidavit. He cited the case of DAPIALONG v. DARIYE (2007) LPELR-928 (SC) 1 @ 103-104. In DANLADI v. DANGIRI (2014) LPELR-24020 (SC) 1 @ 85; [2015] 2 NWLR (PT. 1442) 124.

The learned AG argued further that the instant originating summons is incompetent because the purported affidavit in support thereof offends section 115(1) & (2) of the Evidence Act, 2011. He also cited the case of BAMAIYI v. STATE (2001) 8 NWLR (Pt. 715) 270 @ 289 and submitted that an affidavit is not supposed to contain a legal argument or conclusion which counsel could properly urge upon the Honourable Court during the hearing of the application. Similarly an affidavit is not supposed to contain a conclusion drawn from facts contained in the affidavit because conclusion being a matter of inference is better left for the trial court. Any affidavit that offends the provisions of the Evidence Act is incompetent and ought to be struck out.

Learned AG added thereon that paragraphs 8, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21 and 22 of the supporting affidavit are laced with legal argument, objections, prayer and submissions and argued that this court cannot pick and choose from the remaining paragraphs hence the affidavit ought to be struck out while same automatically renders the originating summons incompetent as same cannot be sustained without a supporting affidavit as prescribed by Order 3, Rule 17(1) (a) of the Rules of the Honourable Court.

With regards to issue two, learned AG reckoned the argument of counsel to the Claimant and the reason for positing that the 4^th respondent lacks the legislative competence to enact the Rivers State Pension Reform Law, 2019 abrogating the 5^th respondent and transferring management of contributory pension of Staff of local government councils to the 6^th respondent.

He then posited that the argument is misconceived while submitting that a basic feature of Nigeria’s federal system is that the Constitution of the Federal Republic of Nigeria 1999 (as amended) delineates the sphere of influence of each level of government in order to ensure that one level of government does not encroach into the sphere assigned to the other under the Constitution. He cited the case of A-G., LAGOS STATE V. A-G., FEDERATION [2003] 12 NWLR (PT. 833) 1, 195-197, A-G., ABIA STATE V. A-G., FEDERATION [2006] 16 NWLR (PT. 1005) 265, 390-391.

Learned AG added thereon that the Constitution provides for two legislative lists, namely (i) the Exclusive Legislative List set out in Part 1 of the Second Schedule to the Constitution, which contains matters reserved only to the National Assembly and (ii) the Concurrent Legislative List set out in the First Column of Part II of the Second Schedule to the Constitution, contains matters over which the National Assembly and the Houses of Assembly of States of the Federation may legislate to the extent defined under the Constitution.

He also argued further that item No. 44 of the Exclusive Legislative List, Part I of the Second Schedule to the 1999 Constitution deals with pensions and other retirement benefits and vests the National Assembly with legislative competence over “Pensions, gratuities and other-like benefits payable out of the Consolidated Revenue Fund or any other public funds of the Federation.”

He posited that having regard to the fact that the 1999 Constitution establishes both the Consolidated Revenue Fund and Public Fund of the Federation and the Consolidated Revenue Fund and Public Fund of the States of the federation, it is submitted that the legislative competence of the National Assembly over pensions, gratuities and other like-benefits is limited only to pensions, gratuities and other retirement benefits payable to employees in the public service of the Federation from the Consolidated Revenue Fund or other public funds of the Federation. He cited sections 80 (1) and 120 (1) of the 1999 Constitution (as amended).

Learned AG also cited the cases of ABDULLAHI v. MILITARY ADMINISTRATOR KADUNA STATE [2009] 15 NWLR (PT) 1165) 417 @ 434, 440-441 and IMO STATE SECONDARY EDUCATION MANAGEMENT BOARD v. DURU (2017) LPELR-42462 (CA) 1 @ 22-24 to contend that it is the State Pension law rather than the Federal Pension Act that applies to employees in the public service of the States of the Federation.

He also contended that Section 1 (1) of the Rivers State Pension Reform Law, 2019 provides that “There is established a Contributory Pension Scheme (in this Law referred to as “the Scheme”) for payment of retirement benefits of employees in the Public Service of the State, hence the argument of the claimants’ learned counsel that employees of Local Government Councils are not employees of the Rivers State Government is grossly misconceived because section 318 (1) of the 1999 Constitution (as amended) defines the phrase “public service of a State” to mean inter alia, (d) “staff of any local government council”.

Learned AG also cited the case of AKINTOKUN v. L. P. D. C. (2014) LPELR-22941 (SC) 1; [2014] 13 NWLR (PT. 1423) 1 to contend that the subsistence of the Rivers State Local Government Staff Pensions Board Edict 1987 cannot fetter or limit the power of the 4^th respondent to enact a new law including amending or completely repealing the 1987 law.

He relied on the same case to contend further that although the Rivers State Local Government Staff Pensions Board Edict 1987 is not mentioned in the repeal section of the Rivers State Pension Reform Law, 2019, there are circumstances in which a repeal of an enactment can be implied or inferred and that is where two acts of the legislature are plainly repugnant to each other that effect cannot be given to both at the same time. Thus, repeal by implication cannot be prohibited where circumstances warrant.

Learned AG argued further that there are no inconsistencies between the Federal and State legislation as both the Pension Reform Act, 2014 and the Rivers State Pension Reform Law, 2019 establishes the contributory pension scheme for employees in the public service of the Federation and public service of Rivers State respectively.

With regards to issue three, learned AG contended that it is trite law that declaratory reliefs are discretionary and are not granted as a matter of routine but only on hard facts demonstrating the entitlement of the claimant to those reliefs. He cited the case of LODAJA v. INEC (2007) LPELR-1738 (SC) 1 @ 60-61

He also cited the case of GOVERNMENT OF KWARA STATE v. IREPODUN BLOCK MANUFACTURING LTD (2014) LPELR-22553 (CA) 1 @ 35-36, to posit that a Court cannot rightly restrain any person or body from the exercise of its lawful duty in accordance with the law.

He concluded by urging the Court to dismiss this suit in its entirety.

Upon receipt of the written address of the Learned AG, counsel to the Claimants replied on points of law on four issues. Of the four, two are properly replies while the other two are repetitions of earlier arguments.

With regards to the contention of incompetence of the originating summons arising from the status of the affidavit in support. Counsel posited with regards to paragraph 5 and 6 that a statement of fact cannot be qualified as rumor and that the case of Ahmed vs C.B.N. (supra) cited by the Respondents is not applicable.

With regards to paragraphs 8, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21 and 22, he contended that counsel to the Respondent merely made a sweeping statement without specifically pointing to which paragraph is conclusion or legal argument. He added that where the court finds the paragraphs to be offensive of the Evidence Act, the remaining paragraphs can sustain a cause of action and the position of the law is that only the offending paragraphs can be struck out. He referred to paragraphs 1, 2, 3, 13 and 23 and Exhibits RSPBL, L1 and L2.

With regards to implied repeal, counsel cited section 81 of the Rivers state Pension Reform Law No. 4 of 2019 to contend that the express mention of the laws repealed expressly exclude all other laws in existence not repealed by this law. He cited the case of Chairman Moro L.G. vs Lawal (2008) ALL FWLR. (Part. 440, 684) ratio 1.

In view of the foregoing arguments, I have taken a careful consideration of the questions raised for determination by this court and the facts deposed to in the affidavit in support and in opposition. I have also taken cognizance of the exhibits annexed to the affidavit in support of the originating summons and I find that arising from the totality of the issues raised in the written addresses in support and in opposition of the Originating Summons and submissions made in furtherance and opposition of same, the sole issue for the determination of this suit is to wit:

Whether the answers to the questions raised for determination are in the affirmative or in the negative to warrant the grant or refusal of the reliefs sought by the Claimants.

Before resolving the sole issue, I find it apposite to address the status of the originating summons filed by the Claimants in view of the contention of Learned Attorney General as counsel to the Respondents who contended that the originating summons is incompetent because the affidavit in support bears paragraphs which offends section 115(1) & (2) of the Evidence Act, 2011. He posited that while paragraph 5 contain rumours, paragraphs 8, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21 and 22 are laced with legal argument, objections, prayer and submissions.

Counsel to the Claimants responded that the position is not correct as paragraph 5 is a fact while the Respondent made sweeping statement in respect of the other paragraphs. He added that even if the paragraphs offends section 115 of the Evidence Act, they are only to be struck out and not to strike out the entire affidavit as the rest of the paragraphs can sustain the suit.

In view of the foregoing contention, I have taken a look at the entire facts surrounding the questions formulated before this court and it is in that light that I shall review the paragraphs in contention.

Before I make an evaluation of the paragraphs in question, I must state that I am not oblivious of the provisions of the Evidence Act which is said to have been breached and for sake of clarity, the said section 115 (1) and (2) is reproduced thus:

(1) Every affidavit used in the court shall contain only a statement of fact and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.

(2) An affidavit shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion.

In view of the foregoing provision, the duty of this court is to take a careful look at the paragraphs in question to ascertain if indeed they are of the Deponents personal knowledge or of facts as he was informed and which he believes to be true. The court is also to find out if the paragraphs contains extraneous matters by way of objection, prayers legal argument or conclusions and the way to go about the duty has been stated by the Court in GLOBAL SOAP & DETERGENT IND. LTD. V. NAFDAC (2011) LPELR-4202(CA) where the Court held that.

”The problem is sometimes how to discern any particular extraneous matter. The test for doing this, in my view, is to examine each of the paragraphs deposed to in the affidavit to ascertain whether it is fit only as a submission which counsel ought to urge upon the court. If it is, then it is likely to be either an objection or legal argument which ought to be pressed in oral argument; or it may be conclusion upon an issue which ought to be left to the discretion of the court either to make a finding or to reach a decision upon through its process of reasoning. But if it is in the form of evidence which a witness may be entitled to place before the court in his testimony on oath and is legally receivable to prove or disprove some fact in dispute, then it qualifies as a statement of facts and circumstances which may be deposed to in an affidavit.” Per WEST, J.C.A.(Pp. 48-49, paras. A-E)

In the discharge of the said duty, I have perused the length of the paragraphs which Counsel to the Respondents called to question and find that paragraph 5 is a fact which the Claimant holds as his opinion to be the reason why Federal Government enacted the Pension Reform Act while paragraph 8 is the Deponent’s narration of how the Rivers State Local Government Staff Pensions Board Edict 1987 came into existence as a law regulating Pension in Rivers State. Both paragraphs qualify as facts and do not offend the provision of section 115(2) of the Evidence Act.

With regards to paragraph 10, 12, 17, 18, 19 and 20, I find that they are presented as information related to the Deponent by the Claimants’ lawyer, B.O. Georgewill Esq. with the time and place where same was related to the Deponent adequately captured in the relevant paragraph in accordance with subsection (4) of section 115 of the Evidence Act. Although the sub-paragraphs from the perspective of the lawyer and in view of all the sections of the law mentioned, may seem to be legal arguments, it must be borne in mind that the affidavit is a deposition of a man who is relaying the information given to him hence the paragraphs will not be considered as legal arguments.

Going further, paragraph 11, 14, 15 and 21 are facts which the Deponent as a Pensioner can state although paragraph 14 and 21 portrays an apprehension of what may become of their retirement benefit, they are drawn from the state of affairs which the law has put in place and same can be validly regarded as a fact.

Paragraph 16 on its part is a conclusion drawn by the Deponent upon reading certain provisions of the law. The paragraph reads thus:

“The Pension Reform Act 2014 clearly recognized our tier of government as a separate tier and made provisions for Pensions Scheme for the Local Government Public Service as I read in Sections 1(1)(a) (b),(c)&(d); S.2(1)&(2), S.3(1),(2)&(4) and S.23(a)&(i) of the Pension Reform Act 2014”.

The foregoing conclusion is a reserve of the court to make as it is the Courts that is clothed with the duty of interpretation of the provision of statues and to draw conclusions from same. Consequently, the said paragraph is found to offend section 115(2) of the Evidence Act and I so hold.

The last of the paragraph in contention is paragraph 22 and upon a perusal of same, I find that the paragraph contains a combination of conclusion and prayer. For sake of clarity, the paragraph reads thus:

“Unless this court restrain and declares the provisions of Sections 40(1) & (2)(d), 43 and 47 of the Rivers State Pension Reform Law 2019 which are inconsistent with Sections 1(1)(a),(b),(c)&(d); S.2(1)&(2), S.3(1),(2)&(4), S.23(a)&(i)of the Pensions Reform Act 2014 null and void and Section 1(1) & (2), 6(1) and 10 of the Rivers State Local Government Staff Pensions Board Edict 1987, the interest of other Claimants and I will continue to be adversely affected as we will be made to rely on the Rivers State Pension Board, a separate Board for the payment of our retirement benefits and monthly pensions as against the law to which we are accustomed to”.

The Deponent by the foregoing paragraph in not only making a conclusion that the provisions of Sections 40(1) & (2)(d), 43 and 47 of the Rivers State Pension Reform Law 2019 are inconsistent with Sections 1(1)(a),(b),(c)&(d); S.2(1)&(2), S.3(1),(2)&(4), S.23(a)&(i)of the Pensions Reform Act 2014, he is also by implication praying the court to declare the former.

Consequently, this court finds that the paragraph is offensive of section 115(2) of the Evidence Act and I so hold.

Upon the foregoing evaluation, the question that arises is whether the impropriety of paragraphs 16 and 22 is sufficient to strike out the affidavit entirely so as to render the originating summons incompetent as argued by counsel to the Respondents

While the learned Attorney General urged the Court to strike out the entire affidavit and cited the case of BUHARI v INEC (2008) 19 NWLR (Pt. 1120) @ 391 where the Supreme Court (per Niki Tobi, J.S.C.) held that where any paragraph of an affidavit offends the provisions of section 115 (1) & (2) of the Evidence Act, the entire affidavit containing the offensive paragraphs should be struck out or discountenanced, counsel to the Claimant on the other hand urged the Court to adopt the position in Military Governor of Lagos State vs Ojukwu (2001) FWLR (Ptt. 50) 1779 at 1788 -1789 where the Supreme Court considered striking out only the offensive paragraphs.

I have taken due consideration of both authorities cited and the common factor in both cases is that where the court cannot pick and choose the paragraphs that is offensive against those that are not offensive, then the court can strike out the entire affidavit. However, where a court has taken the pain to examine all the paragraphs and the remaining paragraphs cannot sustain the suit, then the entire affidavit can be struck out.

In the instant case, as the Supreme Court did in Military Governor of Lagos State vs Ojukwu (2001) (Supra), this court has painstakingly examined the paragraphs in question and finds only two paragraphs to have offended the provision of section 115(2) of the Evidence Act and by evaluation, the paragraphs can be done away with without affecting the entirety of the affidavit in support unlike in the cited case where the remaining sections could not sustain the prayers in the motion.

In addition to the foregoing, I must state that the National Industrial Court in an attempt to do away with technicality, wears a liberal approach towards to provisions of the Evidence Act as section 12(2)(b) of the National Industrial Court Act stipulates to the effect that this court is bound by the provisions of the Evidence Act but may depart from it in the interest of justice.

The foregoing provision consequently clothes this court with discretion in the instant situation to determine whether or not to strictly apply section 115(2) of the Evidence Act or to be liberal in the application of same.

In view of the fact that the discretion of the court must be judicial and judicious, I take into account the fact that the depositions in the affidavit in support of the originating summons and the entirety of the instant suit is in respect of the status of laws relating to pension of retired workers particularly the Constitution, the Pension Reforms Act and the Rivers State Local Government Staff Pensions Board Edict 1987 which the Claimants intend to bring to the fore of their complaint, It is unavoidable for a deponent not to mention these laws in the formulation of his facts. Also, upon evaluation, this court has found that the remaining paragraphs of the Affidavit is sufficient to support the originating summons barring the two offensive paragraphs.

Consequent upon the foregoing, this court is inclined to set aside the provisions of the Evidence Act and to find that the Affidavit in support of the Originating summon is validly filed thereby making the Originating Summons competent before this court.

Having said that, I now turn to the sole issue formulated which touches on the questions formulated for this court to determine. Although there are three questions, the second question is dependent on whether the first is answered in the affirmative or not. The said first question for want of emphasis reads thus:

“Whether by virtue of Section 7 of the Constitution of the Federal Republic of Nigeria 1999 (as amended); Sections 1(1)(a) (b),(c)&(d); S.2(1)&(2), S.3(1),(2)&(4) and S.23(a)&(i) of the Pension Reform Act 2014 which established a Contributory Pension scheme for employee in the Public Service at all levels of Government including Local Government Councils and Sections 1(1); S.2, S.6(1) and S.10 of the Rivers State Local Government Staff Pensions Board Edict 1987, which established the Rivers State Local Government Pensions Scheme and the Rivers State Local Government Staff Pensions Board, its functions and administration, the Rivers State Local Government Staff Pensions Board is not empowered by law to exist as a separate legal entity in line with the Pension Reform Act 2014?”

The highlight of facts leading to the formulation of the first and the two other questions is that the Claimants posited that the 4^th Respondent enacted the Rivers State Pension Reform Law No. 4, 2019 which purported to terminate the existing Rivers State Local Government Pensions Scheme and the Rivers State Local Government Staff Pensions Board which were hitherto established under the Rivers State Local Government Staff Pensions Board Edict 1987.

Counsel to the Claimants argued in highlight that the enactment of the said Law is contrary to Sections 1(1)(a) (b),(c)&(d); S.2(1)&(2), S.3(1),(2)&(4) and S.23(a)&(i) of the Pension Reform Act 2014 because the said Pension Reform Act has established a contributory pension Scheme for all tiers of Government including local governments and recognizes the pension scheme for local governments which will be extinguished by the new law. He added that by the doctrine of covering the field, the 4^th Respondent cannot make a law that is inconsistent with the Pension Reforms Act and any such law that is inconsistent shall to the extent of the inconsistency be null and void. Counsel added that the local government employees are not employees of the state as the Local Government Pensions Board derives its source of funding from the Federation Accounts Committee paid to the Local Government Councils through the State Joint Local Government Account provided for under Section 162(5) of the CFRN 1999. He also contended that since the Rivers State Local Government Staff Pensions Board Edict 1987 is an extant law which was not repealed, the 4^th Respondent is not supposed to enact another law without expressly repealing the said Edict.

In reaction to the facts necessitating the questions for determination, the Respondents upon denying the facts deposed to, posited that that prior to the passage of the Rivers State Pension Reform Law, 2019, the 4^th respondent held a public hearing attended by all stakeholders in the pension sector including the claimants, 3^rd, 5^th and 6^th respondents. They added that at the said public hearing, the claimants did not oppose the scrapping of the 5^th respondent or the passage of the bill into law while the 5^th respondent only requested for enough time to wind up its activities for smooth transition to the 6^th respondent.

On the part of counsel to the Respondent, the highlight of his contention in opposition is that the 4^th Respondent is validly empowered to make, amend and repeal laws for the state including pension matters relating to employees in the public service of Rivers State and that the law enacted is not in contravention of the Pension Reform Act 2014. He added that the Claimants are employees of the Rivers State and that the pension of the said employees are paid from the Consolidated Revenue Fund and Public Fund of the States of the federation.

In view of the foregoing contention, I find it apposite to start the resolution of the sole issue and the answering of the questions formulated for the court from the point that is of no conflict to both parties which is the fact that the powers of the legislative bodies in Nigeria is clearly spelt out in section 4 of the Constitution of the Federal Republic of Nigeria (CFRN) 1999 (as amended). With regards to state legislatures, one of which the 4^th Respondent in the instant case is, they are empowered by section 4(7) of the CFRN and for sake of clarity, the section provides thus:

7.The House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say-

(a) any matter not included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.

(b) any matter included in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and

(c) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.

It must be clearly stated that the power to make laws include the power to amend and repeal an existing law of the state. The Supreme Court in AKINTOKUN v. LPDC (2014) LPELR-22941(SC) posited that:

“Courts, do not make laws, Courts do not amend or repeal laws/Acts of National or State Assemblies. These certainly, are functions of the Legislature.” Per MUHAMMAD, J.S.C. (Pp. 45-47, paras. B-B).

In the instant case, the question is not whether the 4^th Respondent can make laws, it is whether the law made by the said 4^th Respondent is in violation of the Constitution and another Federal law which is the Pension Reform Act, 2014.

In carrying out the consideration therefore, I must quickly point out that the power to make laws with respect to pension is expressly stated in item 44, part 1, second schedule to the CFRN which states that:

“Pensions, gratuities and other-like benefit payable out of the Consolidated Revenue Fund or any other public funds of the Federation.”

The foregoing provision when read along with section 4 (3) CFRN indicates clearly that the National Assembly is exclusively empowered to make laws with respect to pension benefits payable out of the Consolidated Revenue Fund or any other public funds of the Federation.

In view of the fact that the said item 44 specifically mentioned that the power to make pension law which is exclusive to the National Assembly is in respect of pension benefit accruing from the Consolidated Revenue Fund or any other public funds of the Federation, the question arising therefrom is which body has power to legislate over the Consolidated Revenue Fund or any other public funds of states of the Federation which is created under section 120(1) of the CFRN?

The foregoing question was recently answered by the Honourable President of the National Industrial Court, Hon. Justice B.B. Kanyip in the case of Incorporated Trustees of Human Development Initiatives (HDI) and 39 Ors v Governor of Abia State and 73 Ors (Unreported) suit No. NICN/ABJ/47/2019. Delivered in Abuja on JANUARY 23, 2020. His Lordship held that:

“Item 44 of the Exclusive Legislative List, though not mentioned by any of the parties, deals with Pensions, gratuities and other-like benefits payable out of the Consolidated Revenue Fund or any other public funds of the Federation. The manner in which this item is couched shows that the exclusivity of legislative power of the National Assembly over pensions, gratuities and other-like benefits relates only to those payable out of the Consolidated Revenue Fund or any other public funds of the Federation. The 1999 Constitution makes a distinction between the Consolidated Revenue Fund of the Federation and the Consolidate Revenue Fund of a State. See section 80(1) of the 1999 Constitution, which established the Consolidated Revenue Fund of the Federation, and section 120(1), which established the Consolidated Revenue Fund of the State. If item 44 of the Exclusive Legislative List grants exclusive legislative power over pensions payable out of the Consolidated Revenue Fund or any other public funds of the Federation, then it cannot be that it confers exclusive legislative power on the National Assembly over pensions payable out of the Consolidated Revenue Fund of the State”.

The implication of the foregoing is that the power to make laws in respect of the Consolidated Revenue Fund of a State is not one of such that is captured under either the exclusive or concurrent legislative list, the implication of which makes same residual for the State Houses of Assembly to legislate upon.

That said, I reckon that counsel to the Claimants posited that the Claimants are not employees of the State and their pension is paid by the Federal Government. While there is no scintilla of evidence in support of the assertion, I must settle this score at this stage that if indeed the Claimants were public servants under the Public service of the local government council in Rivers State, section 318 of the CFRN which is the interpretation section clearly states whom their employer is as the section provides thus:

“Public service of a state means the service of the State in any capacity in respect of the Government of the State and includes service as: (d) staff of any local government council”.

In view of the foregoing, the employer of the Claimants was the Rivers State Government and not the Federal government as misconceived by counsel to the Claimants.

That said, I must return to addressing the question of whether the law made by the 4^th Respondent is in violation of the Constitution and another Federal law which is the Pension Reform Act, 2014.

Having said that the 4^th Respondent is empowered by section 4 (7) to makes laws outside the exclusive legislative list, and having established that item 44 in the exclusive legislative list is limited to only pension accruing from the Consolidated Revenue Fund of the Federation, it can be said that the 4^th Respondent has not made a law in violation of the Constitution.

In addition to the foregoing, I must state that I have paid due attention to the case of IMO STATE SECONDARY EDUCATION MANAGEMENT BOARD v. DURU (2017) LPELR-42462 (CA) 1 @ 22-24 which was cited by counsel to the Respondent on the position that the 4^th Respondent can validly enact a pension law with regards to the pensions, gratuities and other-like benefits payable out of the Consolidated Revenue Fund or any other public funds of the State of the Federation established under Section 120 (1) of the 1999 Constitution. I find that rightly so, the Court of Appeal while adopting the line of authority of the Supreme Court in ABDULLAHI v. MILITARY ADMINISTRATOR KADUNA STATE [2009] 15 NWLR (PT) 1165) 417 @ 434, 440-441 held that though the Federal law on pension is the Pensions Reform Act 2004 (now 2014) each State Government has subsequently enacted her own pension (Reform ) Laws.

The foregoing recognition of the state laws on pension makes it certain that in the face of the Pension Reform Act, 2014, the 4^th Respondent can validly enact a state pension law for the employees of the state.

I must also add that the Claimants themselves reckon this possibility in view of the cognizance given by them to the Rivers State Local Government Staff Pensions Board Edict 1987. However, they have chosen to cling unto one Law (the Rivers State Local Government Staff Pensions Board Edict 1987) at the expense of another (Rivers State Pension Reform Law, 2019).

That being one limb of the question, the second limb is in respect of the Provision of the Pension Reform Act 2014 which the Claimants’ counsel contended that same has adequately captured the existence of a pension scheme for the Local Government which the 4^th Respondent via the Rivers State Pension Reform Law No.4 2019 is attempting to extinguish.

Counsel to the Respondents posited in opposition that the Rivers State Pension Reforms Act, 2019 has also provided for contributory pension scheme in line with the Pension Reforms Act of 2014 hence, there are no inconsistencies whatsoever.

Counsel to the Claimants referred the court to Sections 1(1)(a) (b),(c)&(d); S.2(1)&(2), S.3(1),(2)&(4) and S.23 (a) & (i) of the said Pension Reform Act 2014 which I find apposite to consider in the light of the contention made by counsel to the Claimant.

Section 1(1)(a) (b),(c)&(d) are basically objectives of the Act and it states that:

The objectives of this Act are to –

(a) establish a uniform set of rules, regulations and standards for the administration and payments of retirement benefits for the Public Service of the Federation, the Public Service of the Federal Capital Territory, the Public Service of the State Governments, the Public Service of the Local Government Councils and the Private Sector;

(b) make provision for the smooth operations of the Contributory Pension Scheme;

(c) ensure that every person who worked in either the Public Service of the Federation, Federal Capital Territory, States and Local Governments or the Private Sector receives his retirement benefits as and when due; and

(d) assist improvident individuals by ensuring that they save in order to cater for their livelihood during old age.

Arising from the foregoing, I reckon that the intendment of the Act is to clearly state that the Pension Reform Act is with the objective of creating a uniform set of rules and regulation for payment of pension in all sector including the local government.

The scope of application of the Act is what was stated in section 2 (1) and (2) of the said Pension Reform Act, 2014 thus:

(1) The provisions of this Act shall apply to an employment in the Public Service of the Federation, the Public Service of the Federal Capital Territory, the Public Service of the States, the Public Service of the Local Governments and the Private Sector.

(2) In the case of the Private Sector, the Scheme shall apply to employees who are in the employment of an organization in which there are 15 or more employees.

While the Act applies to employees in the local government as stated in section 2(1) above, it is without a doubt that same must be read within the meaning of the Constitution as provided in section 318 which places staff of local governments under the Public service of a state and same being the basis upon which this court has resolved that the Claimants and other staff of the local government in Rivers state are employees of the State contrary to the notion held by the Claimants and their counsel.

For emphasis, the fact that section 2 (1) of the Pension Reform Act mentions that the Act applies to employees in the local government after outlining the public service of the state (under which the staff of local governments are covered already) does not change or determine who the employer of staff of local governments is for the sake of pension contribution. If for anything at all, the Pension Reforms Act, 2014 is subject to the provision of the Constitution as the provision of the constitution is supreme and any law that is inconsistent with the constitution must to that extent be null and void. See section 1 (3) CFRN 1999 (as amended). The Supreme Court restated the settled position of the law in the case of SARAKI v. FRN (2016) LPELR-40013(SC) when it held that:

“The Constitution is the supreme law of the land. It is the grundnorm i.e. it is the basic law from which all other laws of the society derive their validity. Section 1 (1) of the 1999 Constitution (as amended) provides: 1 (1) This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.(3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency be void. See: Abacha v. Fawehinmi (2000) 6 NWLR (pt.660) 228: P.D.P. v. C.P.C. (2011) 17 NWLR (Pt. 1277) 485.” Per KEKERE-EKUN, J.S.C. (P. 109, Paras. A-D).

While section 2 of the Pension Reform Act as cited by counsel to the Claimant is merely a provision for scope of the Act, section 3 is with regards to the establishment of Contributory Pension Scheme. Claimants also refereed to subsections (1), (2) and (4) of the said section 3 but the Act makes no provision of subsection (4), only subsections (1) and (2). The said section for sake of clarity is reproduced thus:

(1) There is established for any employment in the Federal Republic of Nigeria, a Contributory Pension Scheme (in this Act referred to as “the Scheme”) for payment of retirement benefits of employees to whom the Scheme applies under this Act.

(2) The Scheme established under subsection (1) of this section shall apply to all employees in the Public Service of the Federation, the Federal Capital Territory, States, Local Governments and the Private Sector subject to the provisions of section 5 of this Act.

The words of the foregoing provision is clear and unambiguous to the effect that the Act intends that pension be paid to whomever the Act applies to in their various employment by way of a contributory pension scheme. The creation of the contributory pension scheme is the hallmark of the Act as can be deduced form the long title of the Act which reads thus:

“This Act repeals the Pension Reform Act No.2, 2004 and enacts the Pension Reform Act, 2014 to continue to govern and regulate the administration of the Uniform Contributory Pension scheme for both Public and Private sectors in Nigeria”.

The question that will naturally arise in view of the foregoing provision is whether the 4^th Respondent has enacted a law that negates or fails to align with the administration of a contributory pension scheme?

In the instant case, the basis upon which the Claimant has challenged the law enacted by the 4^th Respondent is with regards to the transition of the role of the 5^th Respondent to the 6^th Respondent under the new law known as Rivers State Pension Reform Law, 2019 not that the new Law does not provide for Contributory Pension Scheme.

It is noteworthy that counsel to the Respondents brought it to the attention of this court, without contradiction from the Claimants’ counsel, that section Section 1 (1) of the Rivers State Pension Reform Law, 2019 provides that “There is established a Contributory Pension Scheme (in this Law referred to as “the Scheme”) for payment of retirement benefits of employees in the Public Service of the State”.

While I have resolved that the Claimants are employees of the public service of the State as constitutionally provided, it is clear that the Law enacted by the 4^th Respondent is in conformity with the scheme introduced by the Pension Reform Act, 2014 as captured under section 3 of the said Act and reproduced above.

The Pension Reform Act says nothing about establishing a distinct body for the Local Governments for the purpose of administration of pension and neither does section 7 of the CFRN 1999 as amended do so. Section 23(1) (a) and (i) of the Pensions Reform Act which the Claimants and their counsel attempt to hold unto in emphasis of the pension scheme is a section with regards to the functions of the National Pension Commission which was established under section 17 of the same Act and the establishment of the Commission by no means preclude a state of the Federation from establishing her own body for the administration of pension within the state under the law a state has capacity to enact.

In essence, there is no merit whatsoever in the arguments made in respect of the provision of sections 20, 43, and 47 of the Rivers State Pension Reform Law 2019 as enacted by the 4^th Respondent as this court cannot find any inconsistency arising from the said enactment when considered vis-à-vis the provision of sections 1, 2, 3 and 23 of the Pension Reform Act.

I should at this point address the contention of counsel to the Claimants that there is an extant law in respect of the administration of the pension of the local government in Rivers State which was not repealed before the enactment of another law by the 4^th Respondent and the contention that the law leans against an implied repeal in view of the argument of Counsel to the Respondent that the said extant Law (Rivers State Local Government Staff Pensions Board Edict 1987) has been impliedly repealed by the later enactment.

While the new law in question (Rivers State Pension Reform Law 2019) was not placed in its entirety before this court, I reckon that both parties and counsel on both sides are in accord that the law possesses a provision for repeal under section 81 of the Law. Counsel to the Claimant reproduced the repeal section which reads thus:

“The Rivers State Pension Reform Law 2009 and The Rivers State Contributory Pension Scheme for Employees in the Public Service (Amendment) Law 2012 are repealed.”

Upon a perusal of the foregoing, it is clear that the Rivers State Local Government Staff Pensions Board Edict 1987 has not been repealed and remains as an extant law. The law was originally an Edict and obviously predates the Pension Reform Act. It also qualifies as an existing law of the 4^th Respondent under the provision of section 315(1) (b) of the Constitution.

I must state that I am not oblivious of the authorities cited by both counsel in respect of whether the Rivers State Local Government Staff Pensions Board Edict 1987 has been repealed or not. I take particular note of the more recent of the two cases which is that of AKINTOKUN v. LPDC (2014) LPELR-22941(SC) where the Court held that:

“In Law, therefore, there are circumstances in which a repeal of an enactment can be implied or inferred and that is where two acts of the legislature are plainly repugnant to each other that effect cannot be given to both at the same time. Thus, repeal by implication cannot be prohibited where circumstances warrant.” Per MUHAMMAD, J.S.C. (Pp. 64-66, paras. G-B).

While it is of no moment to contend as counsel to the Claimants did that the existence of a law precludes the 4^th Respondent from enacting another law, I must however posit that the instant case is peculiar in the sense that the 4^th Respondent is not to be taken to be unaware of the existence of the Rivers State Local Government Staff Pensions Board Edict 1987 but merely intends to bring to an end a body established under same without repealing the rest of the provisions in the said Edict which has by the provision of section 315(1)(b) become a Law of the State. In clearer terms, this court does not consider the Enactment of the Rivers State Pension Reform Act to be an implied repeal of the Rivers State Local Government Staff Pensions Board Edict 1987 but a mere amendment of same.

In addition, while it is unfortunate that both parties failed to present the full texts of the laws in question save for sections 47-51 of the Rivers State Pension Reform Law, 2019, I must nevertheless say that I had earlier pointed out that the legislative bodies of states of the Federation have powers to make, amend and repeal laws and in the instant case, it can be said that the 4^th Respondent has impliedly amended the provisions of Rivers State Local Government Staff Pensions Board Edict 1987 by bringing to an end the existence of Rivers State Local Government Staff Pension Board via section 47 of the Rivers State Pension Reforms Law of 2019 and the creation of the 6^th Respondent to take over the functions of the said Board.

The foregoing is the conclusion that can be reached in view of the fact that both laws are valid laws of the 4^th Respondent and the 4^th Respondent cannot be ousted from making laws so long as they are validly made and not in contravention with the CFRN. The Supreme Court came to similar conclusion in the case of AKINTOKUN v. LPDC (2014) (supra) when faced with two laws that were inconsistent with each other. The Court held thus:

“I think, the law is that where a later enactment does not expressly amend [whether textually or indirectly] an earlier enactment, but the provisions of the later enactment are inconsistent with those of the earlier, the later by implication, amends the earlier so far as is necessary to remove the inconsistency between them. This is because, if a later Act cannot stand with an earlier one, parliament, generally, is taken to intend an amendment of the earlier. This is a logical necessity, since two inconsistent texts cannot both be valid. If the entirety of the earlier enactment is inconsistent, the effect amounts to an implied repeal of it. Similarly, a part of the earlier enactment may be regarded as impliedly repealed where it cannot stand with the later. An intention to repeal an Act or enactment may be inferred from the nature of the provision made by the later enactment. The Latin maxim puts it that LEGES POSTERIORES PRIORES CONTRARIAS ABROGANT [later laws abrogate prior contrary laws] See: ELLEN STREET ESTATES LIMITED VS. MINISTER OF HEALTH [1934] 1 K.B. 590 at pages 595 – 596; RE-WILLIAMS JONES VS. WILLIAMS [1887] 16 CHD 573 at page 578.” Per MUHAMMAD, J.S.C. (Pp. 62-63, paras. C-A).

In the instant case, the part of the Rivers State Local Government Staff Pensions Board Edict (now Law) 1987 which is inconsistent with the Rivers State Pension Reform Law, 2019 is taken to have been amended by the Rivers State Pension Reform Law, 2019 and I so hold.

In the light of the foregoing, this Court in consideration of the questions raised for determination and the sole issue formulated has found firstly that the 4^th Respondent have the power to make, amend and repeal pension laws for Rivers State and has validly done so with regards to the Rivers State Pension Reform Law No.4 2019 without violating any provision of the Constitution of Federal Republic of Nigeria 1999 (as amended). Secondly, this court has found that the said Rivers State pension Reform Law 2019 enacted by 4^th Respondent impliedly amended the Rivers State Local Government Staff Pensions Board Edict (now Law)1987. Thirdly, this court found that the power to make laws with respect to Pensions, gratuities and other-like benefits payable out of the Consolidated Revenue Fund and Public Fund of the States of the federation is exclusive to the State House of Assembly and it is the Pension Law of the state that is applicable to the staff of local governments who are employees in the public service of the state. Fourthly, this court found that the Rivers State Pension Reform Law 2019 is not inconsistent with the provisions of the Pension Reform Act, 2014 in view of the fact that they both provide for a contributory pension scheme while the pension of the Claimants and other pensioners remain payable under the said scheme as employees of the state within the intent and purpose of the Pension Reform Act, 2014.

In the light of the foregoing findings, the first question formulated by the Claimants is answered in the negative to the effect that there is no provision of the Pension Reform Act or any other Act that specifically states that there should be a separate legal entity for the administration of local government pension and since the State is clearly empowered to make laws in respect of the payment of pension for the employees of the state, the State House of Assembly of Rivers State, i.e. the 4th Respondent, is at liberty to make laws for the administration of same. The Rivers State Local Government Staff Pension Board was established by Law of the State and can also be extinguished by same.

Consequent upon the outcome and answer provided for question one, it is axiomatic that the answer to the second question is also in the negative to the effect that the provisions of sections 40, 43 and 47 of the Rivers State Pension Reform Law, 2019 are not inconsistent with any provision of the Pension Reform Act, 2014 and therefore not null and void.

For the sake of the third question, I shall restate for the umpteenth time that the 4^th Respondent can validly enact a law to extinguish any existing structure created under the Laws of the State including the 5^th Respondent and no such structure was created under the Pension Reform Act while the contributory pension scheme set up by the Pension Reform Act has been validly captured under the law enacted by the 4^th Respondent.

Consequent upon the foregoing, it is without doubt that the sole issue formulated for the determination of this suit is resolved in favour of the Respondents and against the Claimants to the effect that the answers to questions one and two raised for determination are in the negative while the third is in the affirmative and consequently amounts to a refusal of the reliefs sought by the Claimants.

In the final analysis, the claims of the Claimants lack merit in their entirety and same are accordingly dismissed.

Judgment is accordingly entered.

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR.

JUDGE.