IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD
PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA
DATE: MARCH 4, 2020 SUIT NO. NICN/ABJ/356/2015
BETWEEN
Barrister Bala James Nggilari – Claimant
AND
1. Adamawa State Government
2. Attorney General, Adamawa State
3. Incorporated Trustees of Human
Development Initiative & 39 others – Defendants
REPRESENTATION
B. I. Dakum Esq, for the claimant.
M. A. Umar, Senior State Counsel for the 1st and 2nd defendants.
Chino Edmund Obiagwu SAN, Miss Roseline Okoro, Mrs Chisom Ihekwaba and Miss Tinuola B. Oyinloye, for the 3rd to 42nd defendants.
JUDGMENT
INTRODUCTION
1. This case was originally heard by my predecessor, Hon. Justice B. A. Adejumo, OFR but was later transferred to this Court to be heard to conclusion. The claimant instituted this suit by way of complaint and statement of facts dated 17th November 2015 against the 1st and 2nd defendants. The statement of facts was amended pursuant to order of Court made on 12th April 2019. The claimant had served the 1st Defendant as Deputy Governor and Governor between 29th May 2007 to 29th May 2015 respectively. To him, by sections 3 and 6 of the Adamawa State Governor’s Pension (Amendment) Law 2010, he is entitled to pension and gratuity for life. However, that upon completion of his tenure, the applicant was not paid his pension and gratuity hence he commenced this action in 2015 praying the Court for the following reliefs:
(1) A declaration that he is entitled to:
(a) A Special Assistant on salary Grade Level 10 which shall be monetized and paid along with the monthly pension of the Deputy Governor.
(b) A Personal Assistant on salary Grade Level 08 which shall be monetized and paid along with the monthly pension of the Deputy Governor.
(c) Two vehicles the standard of which shall be equivalent to the staff vehicles of the incumbent Deputy Governor to be replaced every four years which shall be monetized (a Prado Jeep and Toyota Camry).
(d) One driver on Grade Level 05 which shall be monetized and paid along with the monthly pension of the Deputy Governor.
(e) Free medical checkup treatment for the Deputy Governor and his immediate family which shall be monetized in value of 300% of the gross annual salary of the incumbent Deputy Governor and shall be paid after every two years.
(f) One cook on grade Level 03 which shall be monetized and paid along with the monthly pension of the Deputy Governor.
(g) A furnished befitting four-bedroom house in any location of choice of the Deputy Governor within the State which shall be monetized.
(h) Security at any place of residence of the Deputy Governor within the State.
(i) Protocol services for the Deputy Governor and his immediate family at airports while undertaking local and international trips.
(j) Protocol services for the Deputy Governor and his immediate family in procurement of travel visas.
(2) An order of the Honourable Court directing the defendants to immediately pay the claimant the following:
(a) The monthly pension of the sum of N334,370 commencing from 16th July 2014 being the monthly equivalent salary of grade levels 10, 8, 5 and 3 civil servants in the Adamawa State Civil Service and his basic Pension.
(b) The sum of N265,850,110.65 (Two Hundred and Sixty-Five Million, Eight Hundred and Fifty Thousand One Hundred and Ten Naira, Sixty-Five Kobo) being the approved estimate for a furnished befitting four-bedroom house for the Deputy Governor of Adamawa State.
(c) The sum of N20,680,457.04 (Twenty Million, Six Hundred and Eighty Thousand, Four Hundred and Fifty-Seven Naira, Four Kobo) being the 300% value of the gross annual salary of the incumbent Deputy Governor to be paid after every two years.
(d) The sum of N33,111,050.00 (Thirty-Three Million, One Hundred and Eleven Thousand, Fifty Naira) being the estimate price of a Prado Jeep and Toyota Camry to be paid after every four years.
(3) An order of this Honourable Court directing the defendants to provide the following for the claimant forthwith:
(a) Security at any place of residence of the Deputy Governor within the State.
(b) Protocol services for the Deputy Governor and his immediate family at airports while undertaking local and international trips.
(c) Protocol services for the Deputy Governor and his immediate family in procurement of travel visas.
(4) And for any other order(s) this Court may deem to make in the circumstance of this case.
2. In reaction, the 1st & 2nd defendants filed their joint statement of defence on 6th April 2018. The 3rd to 42nd defendants, who were initially not parties to the suit sought to be joined and were duly joined as defendants by order of Hon. Justice B. A. Adejumo, OFR, the then President of the Court.
3. The matter went to trial. The claimant testified on his own behalf as CW and tendered two documents thus: resolution of the Adamawa State Executive Council and demand letter from the claimant’s counsel to the 1st and 2nd defendants. The documents were admitted and respectively marked as Exhibits C1 and C2. Thereafter, the 1st & 2nd defendants on their own part led one witness in person of Luqman Mohammed in the rank of Director, Finance and Supply, Adamawa State Pension Board, Yola, who tendered three documents which were admitted and respectively marked as Exhibits D1, D2 and D3. The 3rd to 42nd defendants did not call any witness.
4. At the close of trial, parties filed and served their respective final written addresses. The 1st and 2nd defendants filed their final written address on 4th December 2019. The claimant filed his final written address on 24th December 2019. The 3rd to 42nd defendants filed theirs on 16th January 2020. The 1st and 2nd as well as the 3rd to 42nd defendants did not file any reply on points of law.
THE CASE BEFORE THE COURT
5. The claimant’s case is that the 1st defendant is in breach of the provisions of sections 3 and 6 of the Adamawa State Governor’s Pension (Amendment) Law 2010 by its failure to pay him pension and gratuity for life as provided for by the Law. That the claimant did not only watch while he waited for his entitlement but also took concrete steps in demanding for same when the 1st defendant refused to comply with the said law by writing Exhibit C2. To the claimant, it is not in doubt that the fulcrum of this suit deals with the interpretation of sections 3 and 6 of the Adamawa State Governor’s Pension (Amendment) Law 2010, which is the extant law regulating the payment of pension and gratuity of former Governor and Deputy Governor in Adamawa State.
6. The 1st and 2nd defendants contested the claim of the claimant to all the reliefs claimed. As for the 3rd to 42nd defendants, the Adamawa State House of Assembly acted contrary to the Constitution and beyond its constitutional powers when it purported to determine and fix the amount to be paid as pension and gratuity in the said Adamawa State Governor’s Pension (Amendment) Law 2010. Thus, that the law, which is the threshold of the claimant’s case, is null and void and cannot sustain any claim. Additionally, the said Law was made without the amount granted as pension and gratuity being determined and fixed by the Revenue Mobilisation, Allocation and Fiscal Commission.
THE SUBMISSIONS OF THE 1ST AND 2ND DEFENDANT
7. The 1st & 2nd defendants formulated one issue for determination i.e. whether the claimant is entitle to the reliefs sought having regard to the facts and circumstances of this case; and answered it in the negative. Citing Iwara v. Itam [2009] 17 NWLR (Pt.1170) 337 at 368 – 369 as to the definition of “cause of action” as well as Sani v. Federal Republic of Nigeria [2010] 9 NWLR (Pt. 1198) 153, the 1st and 2nd defendants submitted that the bundle or aggregation of facts which the law recognizes as giving the claimant a substantive right to make as the claim for the vehicles and befitting 4 Bedroom do not form part of pension claim as by the amended statement of fact/claim. That the humongous claims such as the price of a four Bedroom befitting of a status of incumbent Governor or Deputy Governor of Adamawa State is just a blanket description as the amount claimed for the value of the house is just a mere imagination of the claimant. That a New Prado Jeep and a Toyota Camry do not fall among the category of Remuneration/Pension of a former Governor or his Deputy in Adamawa State, in a strict sense; instead, the operation of the Adamawa State Governor’s Pension (Amendment) Law 2010 under the statement of claim that he is entitled to pension as a former Deputy Governor of Adamawa State is not part of what is contained in the said law.
8. Better still, that the said Law was made pursuant to section 124(5) of the 1999 Constitution, which provides thus: “Provisions may be made by a law of a House of Assembly for the grant of a Pension or Gratuity to or in respect of a person who had held office as Governor or Deputy Governor…” To the 1st and 2nd defendants, the power of the House of Assembly of a State to grant pensions or gratuity to or in respect of a person does not extend to the provision of housing and vehicle and the power of State House of Assembly to make law is subject to the power of Revenue Mobilization Allocation and Fiscal Commission to first determine the appropriate remuneration thereof.
9. The 1st and 2nd defendants went on that the Black’s Law Dictionary, 10th Edition at page 1315 defines “pension” as:
(i) A regular series of payment made to a person (or the person’s representatives or beneficiaries) for past services or some type of meritorious work done, esp; or such a series of payment made.
(ii) A fixed sum paid regularly to a person (or to the person’s beneficiaries) Esp, by an employer as a retirement benefits.
And that it was rightly held in the case of Economic Export Ltd v. Jimoh Odutola [1958] WNLR 239 the absence of the express mention of the word remuneration does not mean that it cannot be inferred from the surrounding circumstances. Accordingly, that the pension and other retirement or disengagement allowances and out of office allowances of a Governor and Deputy Governor constitute “remuneration” and “a welfare of employment” in terms of section 32(d) of the 3rd Schedule to the 1999 Constitution and item 34 of the 2nd Schedule to l999 Constitution respectively. So, the enactment of the Revenue Mobilization Allocation and Fiscal commission Act by the National Assembly has stipulated the remuneration of the Governor and Deputy Governor of States in the Federation.
10. It is submission of the 1st and 2nd defendants that Governors and Deputy Governors are in public service, which automatically makes them public servants and as such item 34 of the 2nd Schedule to the 1999 Constitution applies to them. That the issue of payment of arrears does not arise in this case, as per his claims.
11. The 1st and 2nd defendants went on that it is on record per Exhibit D1, the approval and payment voucher as well as list of beneficiaries therein, the claimant inclusive, Adamawa State Pension Board, Yola made that payment on 4th December 2014 in compliance with the Governor’s directive (then) the claimant was the Executive Governor of the State and he paid himself as against the law. That the Adamawa State Governor’s Pension (Amendment) Law 2010 explicitly provided that any payment whatsoever in the Governor’s and Deputy Governor’s pensions and other entitlements are only payable by a successive Governor i.e. after May 2019, that is, after successful tenure of office. But not when the Governor is still at service/power. But that in the said payment made to the claimant herein and some other beneficiaries, the reverse was the case, particularly to that of the claimant precisely.
12. That the Executive approval made on Monday 11/05/2015 in respect of monetized value of a four-bedroom flat for a Deputy Governor in Adamawa State is a blanket approval being attached to any location at all within the State. That it was orchestrated by the claimant who took undue advantage as a sitting Governor using his veto power as against the laid down procedures to his advantage.
13. The 1st and 2nd defendants continued that any payment whatsoever in the name of pension and gratuity to any past Governor or Deputy who has served Adamawa State Government as the Executive Governor/Deputy is subject to the availability of funds, captured in current budget, and proper documentation with the Adamawa State Pension Board Yola, judicially and judiciously as well as administrative procedure for transparency and accountability.
14. Additionally, that the claimant’s suit is too premature in the sense that the claimant has not done the needful i.e. by following the laid down processes/procedures of data capturing. That the sooner he did, the sooner he will start getting his pension monthly, as his former Deputy, Hon. Sa’ad M. C. Tahir is enjoying ever since they left office on a monthly basis. That the claimant did not submit to the Adamawa State Pension Board, Yola his necessary detail/documents, neither was his data captured, and any payments whatsoever in the State is done only via E-payment (Electronic payment); for that reason, it is impossible for the State to effect his monthly pension payment. That the claimant enjoyed all the paraphernalia of office in respect to both personal and domestic staff from 2007 to 29th May 2015 and, therefore, not entitled to any arrears whatsoever. That as of July 2014, the claimant was not a pensioner as he was still in office as the Executive Governor of the State and up till now, not in the pension payroll. The 1st and 2nd defendants concluded by urging the Court to dismiss the claimant’s suit in its entirely, as it is baseless and frivolous.
THE SUBMISSIONS OF THE CLAIMANT
15. The claimant also on his part submitted a sole issue for determination i.e. whether the claimant proved his case on the preponderance of evidence; and answered in the affirmative, citing Al-Bisihak v. National Productivity Centre & anor [2015] LPELR-24659 and section 131 of the Evidence Act 2011. That the case of the claimant is anchored on law and facts. All the claimant needs to do to prove his case is to adduce substantial facts and evidence in support of his pleadings, citing Effiong & anor v. Effiong & ors [2017] LPELR-43529(CA) and Wachukwu & anor v. Owunwanne & anor [2011] LPELR-3466 (SC).
16. To the claimant, the issue in contention is the interpretation of the provision of the Second Schedule of sections 3 and 6 of the Adamawa State Governor’s Pension (Amendment) Law 2010. Sections 3 and 6 of the said law provides thus:
There shall be provided by the State Government for the Deputy Governor the following:
(a) A Special Assistant on Salary Grade Level 10 which shall be monetized and paid along with the monthly pension of the Deputy Governor.
(b) A Personal Assistant on Salary Grade Level 08 which shall be monetized and paid along with the monthly pension of the Deputy Governor.
(c) Two vehicles the standard of which shall be equivalent to the staff vehicles of the incumbent Deputy Governor to be replaced every four years which shall be monetized (a Prado Jeep and Toyota Camry).
(d) One driver on Grade Level 05 which shall be monetized and paid along with the monthly pension of the Deputy Governor.
(e) Free medical checkup treatment for the Deputy Governor and his immediate family which shall be monetized in value of 300% of the gross annual salary of the incumbent Deputy Governor and shall be paid after every two Years.
(f) One cook on Grade Level 03 which shall be monetized and paid along with the monthly pension of the Deputy Governor.
(g) A furnished befitting four-bedroom house in any location of choice of the Deputy Governor within the State which shall be monetized.
(h) Security at any place of residence of the Deputy Governor within the State.
(i) Protocol services for the Deputy Governor and his immediate family at airports while undertaking local and international trips
(j) Protocol services for the Deputy Governor and his immediate family in procurement of travel visas.
19. It is the claimant’s case is that the 1st defendant is in breach of the provisions of sections 3 and 6 of the Adamawa State Governor’s Pension (Amendment) Law 2010 by its failure to pay him as provided above. That the claimant did not only watch while he waited for his entitlement but also took concrete steps in demanding for same when the 1st Defendant refused to comply with the said law by writing Exhibit C2. That it is not in doubt that the fulcrum of this suit deals with the interpretation of provisions of sections 3 and 6 of the Adamawa State Governor’s Pension (Amendment) Law 2010, which is the extant law regulating the payment of pension and gratuity of former Governors and Deputy Governors in Adamawa State. Accordingly, that the duty of the Court is to examine the provisions of sections 3 and 6 of the Adamawa State Governor’s Pension (Amendment) Law 2010 and compare the acts he is complaining of with these sections so as to resolve the question whether there is breach, noncompliance or substantial compliance with the said pension law, citing Amasike v. Reg-Gen, CAC [2010] 13 NWLR (Pt. 1211) 337 SC at 400.
20. That all the claimant needs to establish to prove his case and be entitled to his reliefs is the fact that he served as the Deputy Governor of the 1st defendant and was not impeached. That the law is settled that the courts take judicial notice of all Laws and Acts passed by National Assembly and State Houses of Assembly, citing section 122(b) of Evidence Act 2011. That the Court also takes judicial notice of assumption of office of State Governor (which is joint ticket with the Deputy Governor), citing section 122(d) of Evidence Act 2011. That the question is whether the claimant served the 1st defendant in the capacity he claims and if he is entitled to the benefits provided for in sections 3 and 6 of the Adamawa State Governor’s Pension (Amendment) Law 2010; which question the claimant answered in the affirmative, urging the Court to so hold.
21. To the claimant, his reliefs 2 and 3 are fallouts of relief 1. That he has established that the sum of N265,850,110.65 (Two Hundred and Sixty-Five Million, Eight Hundred and Fifty Thousand One Hundred and Ten Naira, Sixty-Five Kobo) was approved by Adamawa State Executive Council for a furnished befitting four-bedroom house for the Deputy Governor, referring to Exhibit C1. That this approval has not been set aside nor challenged by any subsequent administration.
22. The defendant had argued that the claimant took advantage of his position to approve the amount contained in Exhibit C1. This, to the claimant, is misleading. That the primary duty of the Executive arm of Government is to implement laws enacted by the legislature. That by the sections 5(2) and 176(2) of the 1999 Constitution, the Governor is the Chief Executive Officer of the State. His duties include the execution and maintenance of all laws made by House of Assembly of the State. These duties could be exercised directly or through the Deputy or Commissioners. That suffice it to say that the approval of the sum N265,850,110.65 (Two Hundred and Sixty-Five Million, Eight Hundred and Fifty Thousand, One Hundred and Ten Naira, Sixty-Five Kobo) as shown in Exhibit C1 was properly done by Adamawa State Executive Council in fulfillment of its constitutional mandate of implementing laws passed by the State Government and not in breach of same. That to argue otherwise is to abrogate the powers of the Governor and the State Executive Council; citing Akano v. Ilorin Emirate Council & ors [2000] LEPLR-11927 and urging the Court to hold that Exhibit C1 is a product of exercise of constitutional powers and grant same. That the 1st and 2nd defendants failed to tell this Court which other body is saddled with the responsibility of making such approval. Also, that the submission that the approval ought to have been made by subsequent administration is not supported by the provisions of sections 3 and 6 of the Adamawa State Governor’s Pension (Amendment) Law 2010. Accordingly, that it is purely the opinion of the 1st and 2nd defendants; who also failed to take into cognizance of the fact that the claimant served a 4 year term from 2007 to 2011 as Deputy Governor. That if the legislators intend that such approval should be made in the absence of a serving Governor and by a subsequent administration same would have been expressly provided for in the law, citing Alewa v. Sokoto State [2007] LPELR-8388, Ibrahim v. Barde [1996] 9 NWLR (Pt. 474) 513 at 577, Okechukwu v. Nwoye [2015] 3 NWLR (Pt. 1446) 367 at 402, AG, Fed. v. AG, Lagos [2013] 10 NWLR (Pt. 1380) 249 at 302 and Nwana v. UBA Plc [2003] 16 NWLR (Pt. 846) 218 at 230. To the claimant then, the words of sections 3 and 6 of the Adamawa State Governor’s Pension (Amendment) Law 2010 are unambiguous and same should be given their ordinary meanings.
23. The claimant went on that the submission of the 1st and 2nd defendants in paragraphs 3.03 to 3.06 is not anchored on the provisions of the Adamawa State Governor’s Pension (Amendment) Law 2010. That if the 1st and 2nd defendants read the provisions of sections 3 and 6 of the Adamawa State Governor’s Pension (Amendment) Law 2010 they would have come to a different argument. The claimant then urged the Court to disregard same. That the true position is that Prado Jeep, Camry and house are expressly mentioned in paragraph C and G of the Adamawa State Governor’s Pension (Amendment) Law 2010.
24. The claimant continued that the 1st and 2nd defendants misconstrued the provisions of section 124(5) of the 1999 Constitution, which provision does not make the pension and gratuity of the Governors and Deputy Governors subject to approval or powers of the Revenue Mobilization Allocation and Fiscal Commission. That section 124(5) takes priority over the Exclusive Legislative List in terms of items 44 of the list which confers exclusive legislative power on the legislative list on the National Assembly.
25. That the submission of the 1st and 2nd defendants from paragraph 4.08 to 4.10 betrays the evidence before this Court. that it is on record that the DW informed this Court while under cross-examination that the Adamawa State Pension Board has the data of the claimant. That it is strange to now argue that the claimant failed to present his data to the same body. That no evidence was led to the effect that invitation was extended to the claimant to submit his data and he declined. That the onus is on the 1st and 2nd defendants to establish the said allegation. That the claimant also informed the Court while under cross-examination that he submitted all his data before leaving office.
26. The claimant proceeded that while it is the duty of the claimant to proof his case on the preponderance of evidence, it is trite that facts admitted need no further proof, citing Ebo v. Anadi [2012] 8 NWLR (Pt. 1301) 69. That DW admitted before this Court that the claimant is entitled to all the reliefs as per his statement of facts. And in response to the argument of the 1st and 2nd defendants in paragraph 4.11, that it is pertinent to point out that the claimant’s case is predicated on the fact that he served the 1st defendant as Deputy and not Executive Governor, urging the Court to so hold and grant all the reliefs.
THE SUBMISSIONS OF THE 3RD TO 42ND DEFENDANTS
27. To the 3rd to 42nd defendants, the law relied on by the claimant of his claims, the Adamawa State Governor’s Pension (Amendment) Law 2010, is one that was made without the amount granted as pension and gratuity being determined and fixed by the Revenue Mobilisation, Allocation and Fiscal Commission. Accordingly, that the 3rd to 42nd defendants’ defence is that the Adamawa State House of Assembly acted contrary to the 1999 Constitution and beyond its constitutional powers when it purported to determine and fix the amount to be paid as pension and gratuity in the said Adamawa State Governor’s Pension (Amendment) Law 2010. Thus the law, which is the threshold of the claimant’s case is null and void and cannot sustain any claim.
28. The 3rd to 42nd defendants the submitted a sole issue for determination i.e. whether the Adamawa State Governor’s Pension (Amendment) Law 2010 is ultra vires, null and void, and thus cannot sustain the claimant’s claims. To the 3rd to 42nd defendants, pursuant to the Constitution, it is only the Revenue Mobilization, Allocation and Fiscal Commission (RMAFC) that can determine appropriate remuneration due to a Governor or Deputy Governor. That the Adamawa State House of Assembly erroneously conferred itself with the power to determine and fix remuneration of Governors or Deputy Governors when it enacted the Adamawa State Governor’s Pension (Amendment) Law 2010 without the amount granted therein being first determined by the RMAFC. That section 124(5) of the 1999 Constitution, under which the Adamawa State House of Assembly purported to derive its power from, only gives it the power to grant pension and not determine the amount to be granted. Section 124(5) of the 1999 Constitution provides thus: “Provisions may be made by a law of a House of Assembly for the grant of a pension or gratuity to or in respect of a person who had held office as Governor or Deputy Governor…”
29. However, that the Constitution in item N section 32(d) Part I of the Third Schedule to the Constitution and section 6(l)(d) provide thus:
The Commission shall have power to determine the remuneration appropriate for political office holders including the President, Vice President, Governors, Deputy Governors, Ministers, Commissioner, Special Advisers Legislators and the holders of the offices mentioned in sections 84 and 124 of this Constitution.
That at a glance, the Constitution appears to be contradicting itself in both provisions. However, that a comprehensive and comparative study of both provisions shows that while Item N section 32(d) Part I of the Third Schedule to the Constitution expressly gives power to the RMAFC to determine remuneration of public office holders including pensions, section 124 above only gives State Houses of Assembly the discretional power to make pension laws which power cannot be interpreted to mean power to determine and fix the amount to be granted. That this was the position of this Court sitting in Jos Division in Alhaji Garba Umar v. Taraba State Government, where Hon. Justice Kenneth Amadi held thus:
Since the Revenue Mobilization, Allocation and Fiscal Commission has not fixed any amount as pension and gratuity to past governors and deputy governors in Nigeria, any law made by any State House of Assembly granting pension and gratuity to its past Governors and Deputy Governors is therefore null and void.
30. That the claimant in this case did not adduce any evidence before this Court to show that the RMAFC determined the amount for the gratuity and pension of Governors and Deputy Governors of Adamawa State that was so granted by the State’s House of Assembly. The 3rd to 42nd defendants then submitted that, the Adamawa State Governor’s Pension (Amendment) Law 2010 being ultra vires, null and void, cannot sustain any claim for pension against the Adamawa State Government as “you cannot put something on nothing and expect it to stand”. The 3rd to 42nd defendants then urged the Court to hold that the claimant’s suit lacks merit and dismiss same.
COURT’S DECISION
31. I have carefully considered the processes filed and the submissions of the parties. The 1st and 2nd defendants in paragraph 4.01 of their final written address cited and quoted from Economic Export Ltd v. Jimoh Odutola [1958] WNLR 239. I am at a loss how a 1958 reported case will be referring to “section 32(d) of the 3rd Schedule to the 1999 Constitution and item 34 of the 2nd Schedule to 1999 Constitution respectively”, and “…the enactment of the Revenue Mobilization Allocation and Fiscal Commission Act by the National Assembly…” For this is what the quote from the case by the 1st and 2nd defendants is saying.
32. Secondly, in paragraph 4.03 of their written address, the 1st and 2nd defendants wrote thus: “We submit respectfully, section 4(2) & (3) of the Adamawa State Governor’s Pension (Amendment) Law 2010 provides thus:” Nothing was provided by the 1st and 2nd defendants as the provision of the said section 4(2) and (3). What is counsel for the 1st and 2nd defendants aiming at?
33. The claimant on his part referred to sections 3 and 6 of the Adamawa State Governor’s Pension (Amendment) Law 2010 in paragraph 3.04 of his final written address. He then proceeded to quote what they provide. In doing this, he listed out items numbering (a) to (j) as what the said sections provide. I do not know how two different sections of a Law will consecutively list out the respective items of the different sections. A copy of the said Adamawa State Governor’s Pension (Amendment) Law 2010 was not made available to the Court in order to see how the said sections 3 and 6 are actually worded.
34. During the hearing of the case, the 1st and 2nd defendant’s witness tendered Exhibits D1, D2 and D3, which the counsel to the claimant indicated to the Court that they would be objecting to their admissibility on the ground that they were not pleaded, and that they were not even referred to in the deposition of the witness. Additionally, that being public documents, they are not certified. Counsel to the claimant then submitted that he will give fuller reasons in their final written address. The Court then admitted the said documents but without prejudice to the right of the claimant to object to them in his final written address. No where in the claimant’s final written address did the claimant make any issue as to the admissibility of Exhibits D1, D2 and D3. I take it, therefore, that the claimant abandoned the issue. Even if he did not abandon the issue, section 12 of the National Industrial Court (NIC) Act 2006 allows this Court to depart from the Evidence Act if the interest of justice dictates. Exhibits D1, D2 and D3 accordingly remain admitted. Their probative value, if necessary, will be determined in terms of the merit of the case before the Court.
35. I indicated earlier that the claimant’s case is that the 1st defendant is in breach of the provisions of sections 3 and 6 of the Adamawa State Governor’s Pension (Amendment) Law 2010 by its failure to pay him pension and gratuity for life as provided for by the Law. The claimant has no case whatsoever against the 3rd to 42nd defendants. Instead, it is the 3rd to 42nd defendants who asked to be joined simply because they think that the Adamawa State Governor’s Pension (Amendment) Law 2010 is unconstitutional. Despite being joined in this case, they would still abuse the court process by separately filing Incorporated Trustees of Human Development Initiatives (HDI) & 39 ors v. Governor of Abia State & 73 ors unreported Suit No. NICN/ABJ/47/2019, the judgment of which was delivered on 23rd January 2020 even when an earlier preliminary objection in the instant suit raising same issues of the unconstitutionality of the State Pension Law for former Governors and former Deputy Governors was heard and dismissed by this Court in a considered Bench ruling delivered on 12th April 2019. Once again, the 3rd to 42nd defendants are raising the same issue of the unconstitutionality of the State Pension Law for former Governors and former Deputy Governors of Adamawa State simply because of Alhaji Garba Umar v. Taraba State Government unreported Suit No. NICN/JOS/26/2016, the judgment of which was delivered on 9th December 2019 by my learned brother Amadi J.
36. I shall accordingly start off with the issue of the constitutionality of the Adamawa State Governor’s Pension (Amendment) Law 2010, and issue which incidentally was also raised by the 1st and 2nd defendants when they submitted that the power of State House of Assembly to make law is subject to the power of Revenue Mobilization Allocation and Fiscal Commission to first determine the appropriate remuneration thereof. The 3rd to 42nd defendants also made this point. This point as well as other issues were raised by same 3rd to 42nd defendants who were the claimants in Incorporated Trustees of Human Development Initiatives (HDI) & 39 ors v. Governor of Abia State & 73 ors unreported Suit No. NICN/ABJ/47/2019, the judgment of which was delivered on 23rd January 2020. The said issues were considered in greater details; and at paragraph 80, I held thus:
In summary, and given a global reading of the constitutional provisions, the conclusions I reach (and so hold) are:
(1) Item 44 of the Exclusive Legislative List does not relate to payment of pensions out of the Consolidated Revenue Fund of a State; only of the Federation.
(2) Item 34 of the Exclusive Legislative List cannot override sections 4(7)(c) and 124(5) of the Constitution given section 4(3) of the Constitution.
(3) By section 4(3) of the Constitution, the exclusive legislative power of the National Assembly is not absolute. Alternatively put, section 4(3) of the 1999 Constitution is not absolute. It subjects the exclusive legislative power of the National Assembly to other provisions of the Constitution; and section 124(5) is one such provision. This means that section 124(5) overrides the exclusivity of legislative power of the National Assembly.
(4) The power of the RMAFC under section 124(1) relates to “salaries and allowances”, not pensions. The word “remuneration” used in paragraph 32(d) of Part I of the Third Schedule to the 1999 Constitution does not include pensions.
(5) While section 124(l) donates the power to prescribe remuneration and salaries of Governor and other public office holders subject to the amount as shall have been determined by the RMAFC, section 124(5) did not subject the power of the House of Assembly to that of the RMAFC in granting pension or gratuity for former Governors and their Deputies.
(6) By section 124(5) of the 1999 Constitution, the pension or gratuity of former Governors and Deputy Governors does not need to be the same with the remuneration of a serving Governor or Deputy Governor as determined by the RMAFC.
(7) The power of the RMAFC to determine remuneration under paragraph 32(d) of Part I of the Third Schedule to the 1999 Constitution relates to “political offices holders” i.e. those still in office, not those who have left office.
(8) The exclusive legislative power of the National Assembly in terms of item 34 of the Exclusive Legislative List cannot override section 124(5) of the Constitution for the very reason that under section 4(3) of the Constitution the exclusive legislative power of the National Assembly is not absolute; and the additional reason that item 34 of the Exclusive Legislative List (as is paragraph 32 of Part I of the Third Schedule to the Constitution) coming from a Schedule cannot override a substantive provision of the Constitution. The rules of drafting teach and place greater premium on substantive sections of an Act over and above those in the Schedule. His Lordship Amadi J acknowledged this.
(9) Alhaji Garba Umar v. Taraba State Government unreported Suit No. NICN/JOS/26/2016, the judgment of which was delivered on 9th December 2019 by my learned brother Amadi J, persuasive as it may be, is distinguishable and so cannot be followed in the instant case before me. Accordingly, though it is a decision by my learned brother of coordinate jurisdiction, I do not find it persuasive for all the reasons I already gave.
(10) Accordingly, all State pension laws made pursuant to section 124(5) of the 1999 Constitution are valid and constitutional. They cannot be read to be contrary to or in contravention of any subsisting legislation or the Constitution. If the draftsman of the 1999 Constitution intended to give the RMAFC powers to stipulate pension or gratuity of former Governors and former Deputy Governors, he would have clearly stated so.
37. Accordingly, I adopt totally the reasoning made in Incorporated Trustees of Human Development Initiatives (HDI) & 39 ors v. Governor of Abia State & 73 ors as far as the issue of the constitutionality of the Adamawa State Governor’s Pension (Amendment) Law 2010 is concerned in the instant case.
38. The 3rd to 42nd defendants, however, made a point that was not made in Incorporated Trustees of Human Development Initiatives (HDI) & 39 ors v. Governor of Abia State & 73 ors. It is that section 124(5) of the 1999 Constitution, under which the Adamawa State House of Assembly purported to derive its power from, only gives it the power to grant pension and not determine the amount to be granted. And so I shall at once consider the point. Section 124(5) of the 1999 Constitution provides thus:
Provisions may be made by a Law of a House of Assembly for the grant of a pension or gratuity to or in respect of a person who has held office as Governor or Deputy Governor and was not removed from office as a result of impeachment or breach of any provision of the Constitution; and any pension or gratuity granted by virtue of any provision made in pursuance of this sub-section shall be a charge upon the Consolidated Revenue Fund of the State.
39. The word “grant” is used both as a verb and a noun; and in section 124(5) of the 1999 Constitution, the word is used both as a noun (“Provisions may be made by a Law of a House of Assembly for the grant of a pension or gratuity…”) and a verb (“and any pension or gratuity granted by virtue of any provision made in pursuance of this sub-section…”). Now, the New Oxford American Dictionary defines the word “grant” both as a verb and a noun. As a verb, it means “give (a right, power, property, etc.) formally or legally to: the amendment that granted women the right to vote”. And as a noun, it means “a sum of money given by an organization, especially a government, for a particular purpose”. So, if as a verb, grant means “give…property…legally to…” (it should be noted that money is property), and as a noun it means “a sum of money given by…especially a government, for a particular purpose”, how can the 3rd to 42nd defendants say that section 124(5) of the 1999 Constitution only gives the power to grant pension and not to determine the amount to be granted? Is it not even illogical the submission of the 3rd to 42nd defendants that a law can grant money but cannot specify the amount of the money it grants? I do not see any sense in the argument of the 3rd to 42nd defendants in this regard and so reject it in its totality. The argument is illogical and certainly not sustainable. I so hold.
40. I now turn to the actual claims of the claimant. The claimant’s claims are for pension, gratuity and other post-office entitlements, all of which qualify as special damages. The law is that a claim for special damages must be pleaded and particularized so that the defendant will know what he is meeting. By 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA), the claims for gratuity, pension, housing fund, salary are all special damages and must be strictly proved. See also NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC. Where a claimant fails in this test, the claim must fail; as 7UP Bottling Company Plc v. Augustus specifically admonished in these words:
The Respondent has not specifically and strictly proved same as contended as it is not by mentioning the items of special damages as did in the instant case. What about particularization as to the amount involved as gratuity, pension, housing fund, the salary, etc. The Court is not allowed to make its own estimate of these items.
41. Additionally, in Mr Suraju Rufai v. Bureau of Public Enterprises & ors unreported Suit No. NICN/LA/18/2013, the judgment of which was delivered on 4th June 2018, this Court stressed that:
In labour relations, the burden is on the claimant who claims monetary sums to prove not only the entitlement to the sums, but how he/she came by the quantum of the sums; and proof of entitlement is often by reference to an instrument or document that grants it (Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39), not the oral testimony of the claimant except if corroborated by some other credible evidence.
In fact, Mr Joseph Akinola & ors v. Lafarge Cement WAPCO Nigeria Plc [2015] LPELR-24630(CA) specifically cautions against the reliance on an oral contract as proof of such entitlement.
42. The claimant relies on the Adamawa State Governor’s Pension (Amendment) Law 2010 as the instrument that grants him the entitlement to all the reliefs he claims. In particular, he relies on sections 3 and 6 of this Law. I remarked earlier that no copy of this law was made available to the Court in order to see how exactly worded sections 3 and 6 of the Law are. The Evidence Act 2011 enjoins this Court to take judicial notice of laws, but where access to the said law is made impossible or difficulty, the reality is that there would just be no law to take judicial notice of. So when in paragraphs 4, 5 and 6 of his amended statement of facts (and respectively supported by paragraphs 5, 6 and 7 of the statement on oath) the claimant averred that by the provisions of the Adamawa State Governor’s Pension (Amendment) Law 2010, he is entitled to pension for life at the rate equivalent to the gross salary of the incumbent (serving) Deputy Governor of Adamawa State as well as other entitlements he listed, how am I to verify this where the said Law is not made available given that this Court has no access to it? The items (a to j) the claimant listed in paragraph 6 of his amended statement of facts (also respectively listed as items k to t in paragraph 7 of the statement on oath) are the same items he listed as the provisions of section 3 and 6 of his Adamawa State Governor’s Pension (Amendment) Law 2010. In paragraph 6(g), for instance, the claimant averred that he is entitled to “a furnished befitting four bedroom house in any location of choice of the Deputy Governor within the State (Adamawa State) which shall be monetized”. Is this the actual language of the Adamawa State Governor’s Pension (Amendment) Law 2010? I do not know. Exhibit C1 dated 12th May 2015 is the Conclusion of the 4th (2015) Meeting of the State Executive Council of 11th May 2015. In paragraph 6.0 of the exhibit, where the memo on provision of befitting retirement house for the Governor and Deputy Governor as per the Adamawa State Governor’s Pension (Amendment) Law 2010 was addressed, the talk was that the said Pension Law made provision as to the provision of a befitting 5 and 4 bedroom houses for the Governor and the Deputy Governor. No where in there was anything said about the Law making provision for monetization. The Committee set up to look into the matter recommended some sums of money as the cost implication of the 5 and 4 bedroom houses. It was the State Executive Council that then approved the said sums to be released to the beneficiaries. The question really is: did the Adamawa State Governor’s Pension (Amendment) Law 2010 actually say that the money can be monetized; or did it simply say that a 5 or 4 bedroom house be provided as the case may be? As I pointed out, the Adamawa State Governor’s Pension (Amendment) Law 2010 was not made available to the Court and so there is no way I can ascertain this fact.
43. The claimant talked of his pension being the equivalent of the gross salary of the incumbent (serving) Deputy Governor. What is the quantum of this gross annual salary of the incumbent (serving) Deputy Governor? In paragraph 11 of the amended statement of facts, the claimant pleaded this to be N6,893,485.86. But where is the proof of this? The Court was not shown. Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47 held that the duty of a plaintiff is to plead only such facts and materials as are necessary to sustain his reliefs and adduce evidence to prove same. And the law is that pleadings without evidence, and evidence without pleadings, all go to no issue. See respectively Ifeta v. SPDC [2006] LPELR-1436(SC); [2006] 8 NWLR (Pt. 983) 585 and The Shell Petroleum Development Company of Nigeria Limited v. Kwameh Ambah [1999] LPELR-3202(SC); [1999] 3 NWLR (Pt. 593) 1; [1999] 2 SC 129.
44. In paragraphs 15, 16, 17, 18 and 19 of the amended statement of facts (as respectively supported by paragraphs 19, 20, 21 and 22 of the statement on oath), the claimant gave what he said were the salaries of staff of Grade Levels 10. 8, 5 and 3 in the Adamawa State Civil Service, and hence what should accrue to him as the monetized salary of staff of all these Grade Levels. What, however, is the evidence of the respective sums the claimant gave as salaries of these Grade Levels? None was shown to the Court.
45. The claimant’s reliance on Exhibits C1 and C2 is not helpful either. Other than the provision of a house for the claimant, which I have already faulted since the Law upon which it is based was not made available to this Court, Exhibit C1 is spent on all the other claims of the claimant. Exhibit C2 on its part is the letter of demand by the claimant’s counsel for payment of his pension entitlements as former Deputy Governor. In terms of evidential value, Exhibit C2 is only relevant as proof of the demand, not as prove of any entitlement. In Barrister Jerome Lucky Simon v. Barrister Moses Okosun unreported Suit No. NICN/LA/78/2016, the judgment of which was delivered on 25th April 2018, this Court at paragraph 11 held thus:
Even if there was an employment relationship between the claimant and the defendant, Exhibit C2 dated 21st April 2015 is a letter of demand by the claimant to the defendant for N655,000.00 being the unpaid outstanding salaries from June 2012 to 6th February 2015. Exhibit C2 is written on the letter-headed paper of the claimant although the physical address on it has changed from that used in Exhibit C1. As a letter of demand, Exhibit C2 can only be proof of a demand, not proof of entitlement to what is demanded. It is proof of the demand for outstanding salaries, but not proof of the entitlement to the outstanding salaries; it is not even proof of the salaries themselves…
See also Mr. Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374 NIC.
46. The claimant’s case is made worse since his relief (1) is a claim for 10 declaratory reliefs, (a) to (j). In paragraph 3.08 of his written address, the claimant himself acknowledged that his reliefs 2 and 3 are fallouts of relief 1. Proof of declaratory reliefs is one that is often difficult. As Dumez Nigeria Ltd v. Nwakhoba [2008] LPELR-965(SC) puts it:
The law on the requirements of the plaintiff to plead and prove his claims for declaratory reliefs on the evidence called by him without relying on the evidence called by the defendant is indeed well settled. The burden of proof on the plaintiff in establishing Declaratory Reliefs to the satisfaction of the court is quite heavy in the sense that such Declaratory Reliefs are not granted even on admission by the defendant where the plaintiff fails to establish his entitlement to the declaration by his own evidence. In other words, declarations of right as sought by the plaintiffs/respondents in their first relief against the defendant/appellant in the present case, cannot be made on admission or in default of pleading by the defendant not to talk of reliance on the evidence of the defendant witnesses.
See also Mr Thaddeus Obidike & ors v. Minister of Lands, Housing and Urban Development & ors unreported Suit No. NICN/LA/632/2013, the judgment of which was delivered on 4th December 2018.
47. As it is, and for all the reasons given, I am not satisfied that the claimant discharged the burden of proof placed on him by law as to be entitled to a favourable verdict by this Court. His case must accordingly fail. I so hold. This case is accordingly dismissed for lack of proof.
48. Judgment is entered accordingly. I make no order as to cost.
……………………………………
Hon. Justice B. B. Kanyip, PhD
