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National Industrial Court

Hon. Jonas Chukwudi Emmanuel & 2 Ors -VS-.Attorney-General of

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

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

 

DATE: THURSDAY 12TH DECEMBER 2019     SUIT NO.NICN/EN/32/2019

 

 

BETWEEN:

  1. HON. JONAS CHUKWUDI EMMNUEL
  2. HON. IKENNA C. EKWUEME
  3. HON. VICTOR ABUA

(For themselves and on behalf of all the Immediate

Past Councilors of the Legislative Arm of the Local  CLAIMANTS

Governments in Anambra State who served from

2014 to 2017, whose Outstanding Entitlements and

Benefits are Still being owed by the Defendants)

 

 

AND

 

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

10.Chairman, Onitsha North Local Government

11.Chairman, Onitsha South Local Government       DEFENDANTS

12.Chairman, Awka South Local Government

13.Chairman, Awka North Local Government

14.Chairman, Orumba North Local Government

15.Chairman, Orumba South Local Government

16.Chairman, Ogbaru Local Government

17.Chairman, Idemili North Local Government

18.Chairman, Idemili South Local Government

19.Chairman, Anambra West Local Government

20.Chairman, Anambra East Local Government

21.Chairman, Aguata Local Government

 

APPEARANCES:

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

 

JUDGMENT

INTRODUCTION

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

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

Upon these questions, the following reliefs were claimed:

  1. A DECLARATION that the Claimants are entitled to their outstanding unpaid salaries, entitlements and other fringe benefits as elected ex Deputy Chairmenwho served in their respective local government councils from 2014 to 2017 by virtue of the Anambra State Public Officers’ Salaries Law 2007 (ANHA/LAW/2007/10).
  2. A DECLARATION that the refusal by the Defendants to pay to the Claimants their entitlements as contained in the Anambra State Public Officers Salary Law 2007 (ANHA/LAW/2007/10) is illegal and unconstitutional.
  3. AN ORDER directing the 1st-21st Defendants to pay each of the Claimants their outstanding entitlements and benefits in the sum of Thirteen Million, One Hundred and Sixty-Nine Thousand, Eight Hundred and Thirty-Two Naira(13,169,832).
  4. AN ORDER directing the 1st to the 21st Defendants to pay the cost of this suit which stands at N100,000,000.00 (One Hundred Million Naira Only).

 

For the first before me, the matter came up on the 23rd October 2019. On the agreement of counsel to the parties, the case, along with the five other sister cases, was adjourned to 15th November 2019 for definite hearing. The Court also directed the learned counsel to the claimants, on the application of the learned counsel to the defendants, to provide the learned counsel to the defendants, an address within jurisdiction for service of the processes to be filed by the defendants in this and the other sister cases, before leaving Court on 23rd October 2019. The matter came up as adjourned on 15th November 2019 but could not proceed to definite hearing as adjourned because of issues connected with filing and service of the new process filed by the claimants. It was therefore;in the sister case earlier heard that day, adjourned to 22nd November 2019 for definite hearing.

The matter came up on the 22nd November 2019 as adjourned. The learned M.J. OPUTA moved an application for extension of time for the memo of appearance, the counter affidavit and the written address filed against the originating summons. The application was unopposed and it was granted with cost of N20,000 on all the six sister cases while the order was made applicable to the remaining sister cases. The learned OPUTA relied on his previous application for leave in the sister case: NICN/EN/31/2019 – Hon. Obi Okechukwu & 2 Ors v. AG of Anambra State & 20 Ors, to use the further counter affidavit and the additional written address filed by the defendants. However the learned counsel now cited Christian Iwuagwu v. Emezie Okoroafor & 5 Ors (2012) NGSC 12. The learned C.H. ONWUEMENE also relied on his previous opposition in the sister case of Hon. Obi Okechukwu & 2 Ors v. AG of Anambra State & 20 Ors [supra] to the further counter affidavit and the additional written address, and urged the Court to discountenance them.The Court then ruled that decision on the objection against the use of the further counter affidavit and the additional written address would be made known in the judgment.

Thereafter, the learned counsel to both sides proceeded to adopt their processes on the substantive suit. The learned counsel to the defendants drew attention to the Notice of Preliminary Objection in the defendants’ address. The learned C.H ONWUEMENE, of counsel to the claimants prayed the Court to extend the previous submissions against the application of the defendants for leave to use the further counter affidavit and the additional address filed. The learned M.J. OPUTA subsequently drew attention to the fact that, she observed that, Exhibit A of the defendants’ counter affidavit was an incomplete copy of the statute; and sought the leave of the Court to furnish the composite and certified true copy of the statute from the Bar. The learned ONWUEMENE objected vehemently to this application, arguing that, the strength of the defendants’ case lied with the statute in issue; and that, it was this statute the defendants’ relied upon to terminate the tenure of the claimants; and that, they have argued that it was merely a bill and not law. The learned counsel submitted that, this application would prejudice the position of the claimants because; they would not have the opportunity to examine it, if the application is granted. The learned counsel urged the Court to refuse the application on the ground that, the defendants were changing their case at midcourse after they had responded to it.

The learned counsel to the defendants replied that, the objection lacks merit because; this is a law on which the parties have already joined issues and that it is not new to the learned counsel to the claimants. The learned counsel submitted that, the Court is under obligation to take judicial notice of statutes. The learned counsel to the defendants submitted further that, the learned counsel to the claimants could not object to a document he had not seen. The learned counsel to the claimants replied that, he had seen the document and that it was not the same with Exhibit A of the counter affidavit, that, while the Exhibit A of the counter affidavit was a one-page document, this one attached has no correlation with Exhibit A; and that, the defendants had gone to procure another unrelated document signed by the former governor of Anambra State to provide the missing link.

The learned counsel submitted that, if the defendants wanted to assist the Court, they ought to have provided the full law and not to bring another leaf of a totally different document now attached to Exhibit A with intend to deceive the Court to believe that Exhibit A is a signed document.The document was subsequently marked as ID A-A1 and ruling on its admissibility reserved to the judgment; and the case adjourned to 5th December 2019 for judgment. Judgment was not ready on this date; and it was adjourned to 11th December 2019; and when the Court discovered that it would not yet be ready, it was adjourned to 13th December 2019. However, on the evening of 11th December 2019, a supervening event occurred.It was announced that, the Acting President of the Court would be sworn in 13th December 2019; and it became necessary for me to travel to Abuja 12th December 2019 to attend the investiture hence, the judgment was rescheduled to 12thDecember 2019, by 10:30 am before I travel.

 

ADDRESSES OF THE PARTIES

  1. Written Address in Supportof the Originating Summons

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

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

Under issue 1, the learned counsel submitted that, because, the claimants served the defendants’ Local Government between 2014 and 2017 as political office holders, they are entitled to be paid their entitlements. The learned counsel referred to tables 4, 6 and 8 of the Anambra State Public Officer’s Salaries Law 2007 [ASPOSL 2007] of Exhibit A as justifying the sum of N13,169.832 claimed for each claimant. The learned counsel submitted that, Anambra State refused to pay these monies. The learned counsel cited Okara v. Ndili (1989) 4 NWLR (Pt. 118) 700;AG Lagos State v. AG Federation (2005) 2 WRN 1; INEC V. Musa (2002) 11 NWLR (Pt. 778) 223; Local Government Law 1999 [ASLGL 1999]; Local Government (Amendment No. 8) Law [ASLGAL No. 8, 2014]; and ASPOSL 2007 to the effect that, the courts have the vires to declare ultravires, arbitrariness of public officers, where it is proved that, they disobeyed the law. The learned counsel urged the Court to resolve issue 1 in favour of the claimants and moved to issue 2.

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

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

  1. Defendants’ Written Address Against the Originating Summons

ONYINYE ANUMONYE franked the defendants written address against the originating summons. The learned counsel took the Notice of Preliminary Objection [NPO] first. The learned counsel stated the grounds of the NPO as follows:

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

Under ground 1 of the objection, on non-service of pre-action notice, the learned counsel argued that, Exhibits E1-E21, which the claimants claimed are the pre-action notices issued, have no connexion with the claimants. The learned counsel submitted that, they were not validly issued in accordance with section 11(2) of the Anambra State, State Proceedings Law, 1999 [SPL 1999], as no pre-action notice was issued on the defendants, as public officers. The learned counsel submitted that, the contents of Exhibits E1-E21 did not support the fact that, they were served on the defendants. The learned counsel opined that, the said pre-action notices did not show that they were filed at the High Court of Anambra State. The learned counsel submitted that, by virtue of a practice direction issued by the Chief Judge of Anambra State, pre-action notices must first be filed in Court before service on the officers affected. The learned counsel submitted that, where a statute directs the manner of doing a thing, such prescription must be followed to the letter and cited Unity Bank Plc v. Olatunji (2015) 5 NWLR (Pt. 1452) and some other cases to buttress this point. The learned counsel also cited NDIC v. Ette (2016) 8 NWLR (Pt. 1514) 345 at 365-366, E-F and Bakare v. Nigeria Railway Corporation (2007) 17 NWLR (Pt. 1064) 606 on the effect of failure to serve pre-action notice. There ended arguments on failure to serve pre-action notice. The learned counsel moved to his second ground of objection.

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

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

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

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

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

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

 

  1. Claimants’ Reply to the Preliminary Objection and Reply on Points of Law

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

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

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

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

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

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

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

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

 

COURT’S DECISION

  1. Decision on Preliminary Issues

Counsel to both sides adopted their earlier submissions in the sister case: Suit No. NICN/EN/31/2019 – Hon. Okechukwu & 2 Ors v. AG Anambra State & 20 Ors[Judgment delivered today 12th December 2019]on the further affidavit and Reply on Points of Law [RPL] filed by the claimants out of time without application for extension of time. The learned counsel to the claimants never made application orally too, to extend time, but just asked the Court to deem them, as properly filed and served. I abide the decision I reached in the said sister case just cited above and deemed the further affidavit and the written address attached as properly filed and served – see page 14-15 thereof. I make the order that the learned counsel to the claimants be personally responsible for the default fee and that, he should approach the registry for payment of the penalty thereon, latest next day to this judgment.I come to the issue of the further counter affidavit filed by the defendants, I discountenance the further counter affidavit and the additional written address filed by the defendants in line with my reasoning and decision in the sister case: Hon. Okechukwu & 2 Ors v. AG Anambra State & 20 Ors [supra] p. 15-19.

In line with my decision therein, I save the Exhibit A therein attached with to further counter affidavit for the reasons given therein. I come to the issue of the ASLGLA No. 5, 2011, which the learned counsel to the defendants offered to tender from the Bar; and the learned counsel to the claimants ferociously opposed, on the new ground that the defendants procured the new and unrelated additional part to deceive the Court and overreach the defendants. This is the same document as the annexure A of the further counter affidavit just saved. I still place reliance on Hon. Okechukwu & 2 Ors v. AG Anambra State & 20 Ors, p. 15-19 [supra]. I only need to add that, the learned counsel to the claimants should learn to distinguish between what is supposed to be contained in affidavits and addresses of counsel. For the fuller reasons given in the sister case relied upon by me, I additionally take cognisance of the CTC copy of the ASLGAL No. 5, 2011 tendered from the Bar by the learned M.J. OPUTAand admit it in evidence as Exhibit OPUTA 1. It is to be marked accordingly; and since it is a CTC, it should be made part of the file immediately and paged accordingly for record purposes. I now move to the grounds of objection raised against the competence of the suit.

I should not waste time on this too. The counsel to the parties adopted their arguments and submissions in the sister case: Hon. Okechukwu & 2 Ors v. AG Anambra State & 20 Ors [supra]. I too, I rely on my reasoning and deductions arrived at therein in dismissing the Notice of Preliminary Objection therein, in also dismissing the extant one against the competence of this suit and inferentially, the jurisdiction of this Court. I refer to page 19-22 thereof. I hereby accordingly dismiss the NPO against this action and hold that, the suit is competently before the Court. I only need to add that, the pre-action notices issued in this particular case, are contained in page 59-141 of file; and that, if per chance, the Court of Appeal disagrees totally with my decision on the issue of pre-action notice, my observation is that, truly, the pre-action notices issued in respect of this case did not cover deputy chairmen but only ex-councilors, supervisory councilors and secretary and would not avail the claimants, who are ex-deputy chairmen since they did not relate to them. I move to my decision on the substantive suit.

  1. Decision on the Merit of the Substantive Case

The learned counsel to the parties formulated different issues in accordance with the slant each side wants to project. Since it is the duty of the claimants in originating summons to formulate questions or issues to answer by the Court, I adopt the two issues formulated by the learned counsel to the claimants, which to me look more like how questions are supposed to be formulated for originating summons. They are as reproduced at page 5 of this judgment. However, addressing these issues/questions, I found that, they made relevant the lone issue canvassed by the learned counsel to the defendants, to wit “whether the claimants are entitled to the reliefs sought in this case”. This issue framed by the learned counsel to the defendantssuggests that, a suer might frame questions to answer in originating summons beautifully and yet not be entitled to the reliefs sought.Hence, the first port of call, in a case like this, asking essentially for declaratory reliefs, is to know whether the claimants have proved their case as required by law. It is only after such question is answered in the affirmative that other considerations follow. Once a party fails to adduce cogent and compelling evidence in proof of his case, it becomes unnecessary to start an investigation into the questions to answer in originating summons. Hence, I propose to see if the claimants herein adduce sufficient evidence to activate the investigative jurisdiction of the Court over the questions posed for the originating summons.

I have combed through the entire gamut of the files of this case and all the processes contained therein. I could not find where the claimants for once, just once, stated the date of their inauguration. I could not find any document showing the inauguration, neither was any date or document tendered in relation to the dissolution or termination in issue. The Supreme Court has held that, where an employee fails to tender the letter of his appointment and the document containing the terms of the contract and the conditions of service, there is no jurisdiction for the Court to proceed on any further inquiry – see see Okomu Oil Palm Company Limited v. Iserhienhien (2001) LPELR-2471 (SC) 8-9, E-C and Morohunfola v. Kwara State College of Technology (1990) LPELR-1912 (SC) 15-16, C-C.These cases are impari materiawith the present case. Mutatis mutandis, they therefore apply with equal force. How do the claimants want the Court to determine the issue of their tenure when there is no document in sight to so do? How do they want the Court to believe that they were even ex-deputy chairmen, when there is no document to such effect?

The claimants should know that the Court is a stranger to all that transpired and only gets to know anything through the evidence adduced by the parties. The matter is made worse for the claimants because, this case is essentially seeking declaratory reliefs. Of the four reliefs framed, the first two are declaratory, while the last two are merely consequential, depending on the declaratory reliefs for their existence. On actions seeking for declaratory reliefs, the two appellate courts to this Court have held that:

“It is therefore obvious that whenever there is/are gaps in the case set up by a plaintiff in the supporting affidavit of an originating summons, the position of the law that a plaintiff is entitled to judgment upon the unchallenged and uncontroverted evidence, cannot be invoked…I am of the view that the plaintiff has not put enough materials to enable the Court grant him the reliefs sought’ and dismissing the Appellant’s case. This too, is eminently correct and cannot now be provided by the slant given to the facts deposed to in the affidavit in support of the originating summons.” – see Nwoga v. Imo State Independent Electoral Commission & Ors (2019) LPELR-47562 (CA) 41-43, E-B.

Hear the Supreme Court:

“It is the practice that a declaratory relief will be granted where the plaintiff is entitled to relief in the fullest meaning of the word. Furthermore the relief claimed must be something which it would not be unlawful or unconstitutional or inequitable for the court to grant. It should also not be contrary to accepted principles upon which the court exercises its jurisdiction…” – see the Supreme Court in Chukwumah v. SPDCN (1993) LPELR-864 (SC) 64-65, G-B.

The Court of Appeal added its voice in SPDC Ltd v. Frontline Television Ltd (2011) LPELR-4952 (CA) 10-11, D-A:

“It is trite that declarations are only made when the Court is satisfied not only as to the precise nature of the interest in respect of which the declarations are sought but if sufficient evidence further establishing the claimed interest abounds. Accordingly, it is essential for the party seeking the declarations to specifically state its interest and the facts on the basis of which it asserts that interest. The onus remains on the plaintiff, the Respondent herein, to establish its claim and the law does not allow such a claimant to rely on the weakness of or the mistake in the defendant’s case.” [Underline for emphasis]

It is therefore clearthat the above suit offends all the parameters on which declaratory reliefs could be granted. It offends Order 3, Rule 17(1)(b) of the NICN Rules, by failing to exhibit essential documents. Sufficient evidence was not placed before the Court to make the declarations sought or to commence an inquiry into them, thus, the suit offends against the principles established for grant of declaratory reliefs, as enunciated in the cases cited and quoted above. Declaratory reliefs are not granted on the weakness of the case of the defence but on the strength of the claimants’ case.

I also wish to observe that the consequential reliefs are special damages. I cannot find that the claimants made enough materials available to grant the reliefs. I wonder how the claimants want the Court to determine the issue of the allowances and benefits been claimed in the absence of relevant evidence to determine the date they assumed offices and the date they exited, in an action based on contested tenure. I wonder how the claimants want the Court to severe the parts of the claimed allowances that belong to a particular period in the event that, it perhaps finds that the claimants were not entitled to three, but two-year tenure – see Adama Beverages Limited v. Akam & Ors (2015) LPELR-40417 (CA) 27-28, B-C; and especially Union Bank PLC v. Onuorah & Ors (2007) LPELR-11845 (CA) 15-16, B, where the Court of Appeal explained the issue of particularization and effect of failure in that behalf thus:

“…I would cite the case of Joseph v. Abubakar (2005) 5 NWLR (Pt. 759) 185 at 206 where it was held: – ‘Special damages will only be awarded if strictly proved and for this, the plaintiff ought to sufficiently particularise it to enable the court decide whether all or part of it can be granted. In other words, to succeed in claim for special damages, it must be specifically pleaded and strictly proved…” [Underline supplied for emphasis]

The claimants have simply failed to sufficiently particularise the special damages being claimed. It follows that, even if the Court were to find for them in the declarations sought, it would have been handicapped to grant the consequential reliefs. In any case, where a case fails, the relief relating to cost fails automatically.

Even without any response from the defendants, it follows that; the case would still have failed on consideration of the claimants’ processes alone. Having arrived at this juncture, I need not proceed to examine the other aspects of the case. But assuming that the Court of appeal finds that my decision was not right, for the benefits of completeness, I rely on my previous decision in the sister case:Hon. Okechukwu & 2 Ors v. AG Anambra State & 20 Ors [supra] p. 23-32, and the fuller reasons and deductions therein, in answering the further issues arising from the two questions framed by the learned claimants’ counsel and earlier adopted by the Court for the determination of the suit.Placing reliance on this authority, the suit is liable to be dismissed. But before that, let me make a conclusive remark.

 

 

CONCLUSION

I wish to point out to counsel and parties that, cases are not fought and won on the basis of sentiments or sensationalizing, but on the basis of hard and concrete evidence with the requisite quality. I could see a lot of newspaper cuttings exhibited. These pieces of documentary evidence are completely useless for the determination of the case.Instead of concentrating energies on gathering these useless pieces of documentary evidence, the claimants and their counsel would have done better to expend these energies in sourcing and exhibiting the concrete pieces of documentary evidence that could have tilted the scale in their favour.

Be that as it may. Having reached this juncture, I have no option than to terminate the life of this case on the merit. I hereby dismiss this suit in its entirety as totally lacking in merits. I award no cost.

The above is the judgment of this Court in this case. Judgment is entered today 12th December 2019 under the hand of the presiding judge accordingly.

…………………………..

HON. JUSTICE OLUWAKAYODEO. AROWOSEGBE

Presiding JUDGE

ENUGU DIVISION

NATIONAL INDUSTRIAL COURTOF NIGERIA

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