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National Industrial Court

Hon. Obi Okechukwu & 2 Ors -VS-.Attorney-General of Anambra

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

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

 

DATE: THURSDAY 12TH DECEMBER  2019                SUIT NO.NICN/EN/31/2019

 

 

BETWEEN:

  1. HON. OBI OKECHUKWU
  2. HON. IGNATIUS CHUKWUNONSO ANGHOR
  3. HON. ALOYSIUS UZOEKWE

(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 councilors who served in their respective local government councils from 2014 to 2017 by virtue of the Anambra State Public Officers’ Salaries Law 2007 (ANHA/LAW/2007/10).
  2. A DECLARATION that the refusal by the Defendants to pay to the Claimants their entitlements as contained in the Anambra State Public Officers Salary Law 2007 (ANHA/LAW/2007/10) is illegal and unconstitutional.
  3. AN ORDER directing the 1st-21st Defendants to pay each of the Claimants their outstanding entitlements and benefits in the sum of Eleven Million, Two Hundred and Forty Thousand, Seven Hundred and Ninety-One Naira (11,240,791).
  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).

The matter came up first before me 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, along with the five other sister cases, adjourned to 22nd November 2019 for definite hearing.

The matter came up on 22nd November as adjourned. On this date, the learned counsel to the defendants first moved an application for extension of time and deeming order on the memo of appearance, counter-affidavit and written address filed against the suit out of time. The learned counsel to the claimants did not oppose this application, but asked for cost. Cost of N20,000 was granted against the learned M.J. OPUTA, of counsel to the defendants, personally to be paid on or before the next date, while the prayers for extension of time and deeming order on the counter-affidavit, written address and memo of appearance filed by the defendants were granted.

After this, the learned counsel to the defendants informed the Court that they filed a further counter-affidavit with written address in reaction to the further affidavit of the claimants served on them on 14/11/2019; and that, efforts to serve these processes on the claimants’ counsel in Court that morning was rebuffed. The learned counsel to the claimants replied that, he saw the second counsel to the defendants [GIDEON UGWUANYI] that morning and; he gave him an unfiled copy of the process in issue and he refused to collect it on the ground that, the defendants had no right to file further process; and that, it was abuse of process to do so, wherein the learned GIDEON UGWUANYI retorted that, it was up to him to choose to go on or take adjournment. The learned counsel referred to Order 15, Rules 5-7 of the NICN Rules to buttress his position. The learned ONWUEMENE argued that, the matter was adjourned for definite hearing and that, there ought to be an end to pleadings; and that, the defendants were not entitled to file further processes by way of reply to the reply of the claimants. The learned counsel cited CBN v. Ahmed (2001) 11 NWLR (Pt. 72) 369-409, B-H on abuse of process to buttress his position and urged the Court to strike out the new process.

The learned ONWUEMENE also argued that, the new process was filed to irritate the claimants and to delay the case. The learned counsel cited Order 25, Rules 1, 4, and 8 of the NICN Rules and argued that, it enjoins the fast-track of this type of cases, which is captured by Order 25, Rule 1(4) of the NICN Rules. There ended the address of the learned ONWUEMENE, and the learned OPUTA for the defendants took over.

The learned M.J. OPUTA stated that, they wanted to serve on the learned ONWUEMENE a process titled “Further Counter Affidavit” and he declined service; and that, they had undertaken personal service. At this stage, the Court reasoned that, instead of wasting time on trying the issue of whether or not the learned ONWUEMENE was given the process and he refused, it was better to order that, the process be served on the learned ONWUEMENE right in the presence of the Court. The Court accordingly ordered the process to be served on the learned ONWUEMENE right away; and it was so served. Thereafter, the learned OPUTA stated that, at the last adjourned date, the learned counsel to the claimants served them with further affidavit and Reply on Points of Law. The learned counsel referred to Order 15, Rules 6 & 15 of the NICN Rules, and submitted that, there is no provision for filing of further affidavit, which the claimants filed. The learned counsel argued that, because, the further affidavit filed by the claimants raised new issues, the defendants were at liberty to file further counter affidavit in rebuttal, in order not be caught by the rule of deemed admission. The learned counsel referred to Order 25, Rule 1(4) and urged the Court to grant them leave to use the further counter affidavit.

The learned OPUTA argued further that, because, when the learned counsel to the claimants announced at the inception that he was ready to go on with the hearing, they too had said they were ready, they have not therefore, delayed the proceedings. At this point, the Court ordered that ruling on the application will be delivered with the judgment and ordered the learned counsel to the parties to proceed to adopt their respective processes on the substantive suit. At this point, the learned ONWUEMENE for the claimants argued that, there was need to file further processes to challenge the new issues raised in the further counter affidavit by the defendants and; as such, needed time to so do; and the Court opined that, the claimants, through their counsel did not want the substantive matter to be heard, otherwise their counsel would not be making another application for adjournment after he had already urged the Court to declare the further counter affidavit in issue, incompetent.

The Court ruled that, if the learned counsel to the claimants truly believed the defendants raised new issues, which are beyond the scope of the case, it was for the Court to decide and declare the process incompetent if it agrees; and that, the counsel to the parties, especially the learned counsel to the claimants could not hold the Court under a spell of rigmarole to elongate the lives of the cases unnecessarily. Thereafter, the learned counsel to the parties proceeded to adopt their processes in respect of the substantive case. The learned ONWUEMENE for the claimants started first.

The learned counsel to the claimants identified the processes filed, stating that the originating summons was filed on 25/06/2019 with an affidavit in support to which was annexed exhibits. The learned counsel also pointed out that, the claimants accompanied the originating summons with a written address. The learned counsel relied on the affidavit in support and adopted the written address. The learned counsel adumbrated by drawing attention to the fact that, pre-action notices were served; and submitted that, no authority says pre-action notice must be filed at the Registry of the Court before it could be served. The learned counsel ended adumbration on the originating processes and went to the subsequent processes filed. The learned counsel stated that, at the receipt of the defendants’ response to the originating summons, the claimants filed further affidavit in reaction on 14/11/19 and urged the Court to deem it as properly filed and served. The learned counsel also drew attention to the Reply on Points of Law [RPL] filed. The learned counsel thereafter adopted the RPL and urged the Court to grant all the reliefs of the claimants. In further adumbration, the learned counsel referred the Court to paragraphs 5.04-5.08 of the defendants’ written address; and submitted that, the documents attached as receipts were designed to deny the claimants their entitlements, and that, they were not full and final payment of their entitlements. There ended the address of the learned counsel to the claimants and the stage moved to that of the learned counsel to the defendants.

The learned M.J. OPUTA first drew the Court’s attention to the preliminary objection raised against the suit in their written address dated 22/11/2019 but filed 23/11/2019. The learned counsel also drew attention to the counter affidavit deposed to against the originating summons on 23/11/2019, pointing out that, it has exhibits. The learned counsel thereafter relied on the counter affidavit and adopted the written address. The learned counsel argued that, because the further affidavit filed by the claimants raised new issues, the defendants also filed further counter affidavit with an annexure and another written address dated 21/11/2019 but filed 22/11/2019. The learned counsel sought the leave of the Court to use the further processes in issue and urged the Court to dismiss the suit. In adumbration, the learned counsel drew attention of the Court to the fact that, the claimants failed to specify the period they were owed the said salaries and referred to paragraph 5.01 of their written address. There ended the address of the learned counsel to the defendants and the case was adjourned to 5th December 2019 for judgment.

When the Court noted that the judgment would not be ready on this date, it directed that counsel to the parties be so notified. The judgment was then fixed for 11th December 2019. Again, the Court saw that it won’t still be ready by that date and further directed that 13th December 2019 be communicated to the counsel to the parties. 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 12th by 10:30 am before I travel.

The next thing for me is, to summarise the written addresses of the parties. I start with that of the claimants, which is the first to be filed.

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 and benefits.
  2. Whether the purported termination or dissolution of the Anambra State Local Government Public/Political Office Holder tenures of office was not in violation of the provisions of sections 51(3) of the Local Government Law 1999 and Local Government (Amendment No. 8) Law 2014, and thereby unlawful, illegal, ultra vires, null and void and of no effect whatsoever.

Under issue 1, the learned counsel submitted that, because, the claimants served the defendants’ Local Governments between 2014 and 2017, as political office holders, they are entitled to be paid their entitlements. The learned counsel referred to tables 4, 6 and 8 of the Anambra State Public Officer’s Salaries Law 2007 [ASPOSL 2007] of Exhibit A as justifying the sum of 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 ultra vires, arbitrariness of public officers, where it is proved that, they disobeyed the law. The learned counsel urged the Court to resolve issue 1 in favour of the claimants and moved to issue 2.

Under issue 2, which is on the illegality of the dissolution of the Local Government, the learned counsel submitted that, the tenure of the claimants ran from 2014-2017 and not 2014-2016, as erroneously conveyed in some of the letters sent to the defendants. The learned counsel pointed out that, the ASLGAL No. 8, 2014 at page 20, paragraph 3 gives tenure of three years 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 [ASSPL 1999], as no pre-action notice was issued on the defendants, as public officers. The learned counsel submitted that, the contents of Exhibits E1-E21 do not support the fact that, they were served on the defendants. The learned counsel opined that, the said pre-action notices did not show that they were filed at the High Court of Anambra State. The learned counsel submitted that, by virtue of a practice direction issued by the Chief Judge of Anambra State, pre-action notices must first be filed in Court before being served 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 right to full benefits through their nominated leaders. The learned counsel cited Olley v. Tunji (2013) 10 NWLR (Pt. 1362), B-C [SIC] on the law that, originating summons does not contemplate hostile facts.

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

Arguing against the substantive suit, the learned counsel formulated one issue, to wit: “whether the Plaintiff 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 the irreversible steps that input waiver on a complainant.

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

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

  1. Claimants’ Reply to the NPO and RPL

JONAS O. UDENSI franked the Claimants’ two addresses rolled into one. Replying to ground 1 of the NPO, which is on failure to serve pre-action notice, the learned counsel submitted that, pre-action notice is not a court’s process and cited Ntiero v. NPA (2008) LPELR-2073 SC, 11, B-C to the effect that, pre-action notice is in form of a letter written either by the claimant or his solicitor; and urged the Court to discountenance the defendants’ counsel’s argument that, it must be filed in court. The learned counsel submitted that, the decision of the Supreme Court in Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 76 suggests that, it is not necessary that pre-action notice be in a particular format, once it contains enough materials to enable the defendant to exercise his discretion either to settle or go to court. The learned counsel submitted that, the claimants herein have substantially complied with the law in relation to the service of pre-action notice. The learned counsel thereafter moved to ground 2 of the objection, which is on originating process 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, therefore, there could not be substantial dispute of facts in the affidavits of parties, as the case is centred on interpretation of written law. The learned counsel cited Jimoh v. Olawoye (2003) 10 NWLR (Pt. 828) 307 and other cases. The learned counsel argued that, there is no logic in the attempt of the learned counsel to the defendants to input that conflict arises from Exhibit B of the affidavit in support because, the claimants have shown that, monies meant to settle the claimants’ entitlements were siphoned between the chairmen and the state government and the first page of Exhibit B shows that, the agreement was between the chairmen and state government. The learned counsel argued that, paragraph 9-11 of the further affidavit showed that, the claimant only received the money as palliatives to assuage their anger; and that, there was no authorization given to anybody to negotiate on behalf of the claimants.

The learned counsel argued that, the real issue to be tried is, as to the tenure of the claimants and whether, based on the relevant laws, they were entitled to salaries and severance benefits. The learned counsel cited FAMFA Oil Ltd v. AG Federation (2003) 18 NWLR (Pt. 852) 453 to the effect that, originating summons is employed for the construction of documents, instruments and written laws, as in this case; and argued that, Emezi v. Osuagwu & Ors (2005) ALL FWLR (Pt. 259) and two other cases fully support the commencement of this suit via originating summons. The learned counsel thereafter argued that, in the invent that the Court comes to the conclusion that, the suit ought not to have been commenced via originating summons, the appropriate thing, is to order pleadings; and not to dismiss or strike it out. On this, the learned counsel cited Jev & Ors v. Iyortyom (2014) LPELR-23000 (SC). The learned counsel argued that, enough documents abound to resolve whatever conflicts there may be apparent in the affidavits of parties, and as such, there would be no need to order pleadings. The learned counsel ended his address on ground 2 of the NPO by urging the Court to resolve it in favour of the claimants. There ended the reply of the learned counsel to the claimants on the NPO. Thereafter, the learned counsel moved to the RPL to the substantive address of the 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 of the affidavit. The learned counsel also cited Eperokun v. University of Lagos (supra), Governor Ekiti State v. Ojo (2007) 16 WRN 56, Obu v. NNPC (2003) WRN 76 and WAEC v. Obisesan (2008) 26 WRN 120 at 135, and ended on that issue.

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

That will be the end of summary of the addresses filed. I say ‘that will be the end of the summary of the addresses filed’ not because, there is no further address filed but because, I am of the opinion that, I am not bound to take cognisance of these further processes. I shall give my reasons anon. The next thing is to give my decision. My decision shall be divided into two parts. Part A shall deal with the preliminary issues: the NPO against the jurisdiction of the Court and my reasons 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. Decisions on Preliminary Issues

First, I take the issues of the further affidavit filed on 14/11/2019 by the claimants and the further counter affidavit filed by the defendants on 22/11/2019. The learned counsel to the defendants opposed this further affidavit of the claimants, as incompetent, citing Order 15, Rule 6 of the rules of this Court and submitted that, there is no room for further affidavit. The learned counsel to the claimant asked the Court in his address at adoption to deem the further affidavit, as properly filed and served. However, the learned counsel to the claimants attacked the further counter affidavit filed by the defendants, as being incompetent, not having been provided for in the rules of this Court; and that, it was filed merely to delay the hearing of the matter. The learned counsel later said he would ask for time to file another process in reaction to the further counter affidavit. On the other hand, the learned counsel to the defendants submitted that, the further counter affidavit was filed in reaction to the new issues raised in the further counter affidavit of the claimants.

Let me state that, I observed that, the further affidavit filed by the claimants and the RPL were filed out of time. This the learned OPUTA raised on 15/11/2019. By Order 15, Rule 6 of the NICN Rules, the claimants were expected to file their RPL and the further affidavit 7 days after service on them of the counter affidavit. The counter affidavit and written address of the defendants were served on the claimants via learned ONWUEMENE on 4th November 2019 and the claimants filed their further affidavit and RPL on 14/11/2019. Thus, the further affidavit was filed 10 days after service of the counter affidavit, and thus late. The learned counsel to the claimants did not file any application for extension of time nor prayed for this orally. The only thing he did was to ask that the processes be deemed properly filed and served. I also observed that, no default fee was paid for filing the processes late. Ordinarily, I ought to declare the processes incompetent but, I would not because, the courts have always made a distinction between failing to pay filing fee and not paying default fee; and have consistently held that, where default fee is not paid, the Court should just order its payment and let the matter rest.

But before I come to that, let me address another ground of objection raised against the further affidavit. This is the issue of not been provided for in the rules of this Court. I have combed Order 15, Rule 6 of the NICN Rules cited by the learned OPUTA and observed that, it did not directly mention further affidavit. But a close scrutiny shows that, it mentions ‘reply on points of law’ and ‘written address’ as the two things, which the claimants could file after service of the defendant’s counter affidavit on it. It is clear that, the rule could not have meant two different written addresses: for ‘reply on points of law’ is an address, while ‘written address’ is also an address. It is clear that, it meant further affidavit and reply on points of law. That this is so, is clear from the provisions of Order 17, Rule 1(11) of the NICN Rules relating to motions, wherein it was provided that, where a counter affidavit is served on the claimant/applicant, s/he may file a further and better affidavit together with a written reply on points of law within 7 days of such service.

This rule is impari materia with Order 15, Rule 6 in issue. Originating summons is more or less like applications brought by motions, which are fought purely on affidavits. Order 33 of the NICN Rules, which makes the Reply Pleadings the last in the series of pleadings also supports the view that, further affidavit is the last in the series of affidavits in originating summons. After all, affidavits take the place of pleadings in originating summons – see Funtua v. Ingawa (2016) LPELR-41166 (CA) E-B and Olly v. Tuni & Ors (2012) LPELR-7911 (CA) 37, E-G. Courts have always relied on internal aids like these, to arrive at the true meaning or intendment of provisions in statutes, which, if given literal construction would lead to absurdity – see Adewumi & Anor. v. AG Ekiti State & Ors (2002) LPELR-3160 (SC) 32-33, B. I therefore hold that, the provision for “written address” and “reply on points of law” in Order 15, Rule 6 meant provision for ‘further affidavit’ and ‘reply on points of law’ and that, the mistake is printer’s devils or typo, undetected by at proof.

Relying on Ikpeogu v. Ikpeogu & Ors (2016) LPELR-41057 (CA) 22, C-F, where the Court of Appeal said, the Court has the discretion to order payment of default fee, instead of declaring the process incompetent; and UBA Ltd v. Dike Nwora (1978) LPELR-3401 (SC) 12-13, D-E, where the Supreme Court held that, a court should just extend time till the date it is sitting for pleadings filed out of time before it; I hereby order the learned ONWUEMENE to approach the Registry before close of work the next day to this judgment, to pay the default fee incurred personally in accordance with Order 57, Rule 5(7) of the NICN Rules. This I say because, the fact of late filing was pointed out to the learned ONWUEMENE by the learned OPUTA on 15th November 2019, yet the learned ONWUEMENE did not take heed to regularise and conveniently feigned ignorance of this and proceeded to urge the Court to deem the irregular process as properly filed. I now come to the further counter affidavit of the defendants.

First, I cannot find any new issue raised in the further affidavit of the claimants necessitating filing of further counter affidavit by the defendants. I found in the further affidavit issues properly joined and pleadings completed. The issue of ASLGLA No. 5, 2011 not being a law duly passed but a mere bill yet to be passed into law, raised in paragraph 8 of the further affidavit and to which the further counter affidavit also replied, apart from being strictly an issue of law that, needed not to be raised in the affidavits of parties, as done, but in the addresses of counsel – see Wahab & Anor v. Aliyu (2015) LPELR-40395 (CA) 27-28, F-B; the parties have joined issue on it already in their addresses, needing no further address from the defendants. The defendants first raised the issue of the ASLGLA No. 5, 2011 repealing the ASLGL 1999 relied upon by the claimants. The claimants merely joined issue on this in their reply on points of law by saying the said ASLGLA No. 5, 2011 is a mere bill yet to be passed into law, obviously because of its heading or title.

I could not find any depositions showing how the ASLGLA No. 5, 2011 was forged. That is only thing that could have being a new issue but since no issue of forgery is raised, the complaint on its heading is a matter of law. Saying the ASLGLA No. 5, 2011 is a mere bill is reply on point of law stricto sensu to the issue of applicability of the ASLGLA No. 5, 2011 raised by the defendants’ counsel in their address; the determination of which must be left to the Court. Further or additional address could not be filed to repair what has been left undone in the original address of the defendants. The learned defence counsel saw the heading of the ASLGLA No. 5, 2011 and yet did not comment on it in his written address, the additional address is not an avenue to cure that defect in his original address, otherwise, there would be no end to addresses and affidavits. For this reason, the further counter affidavit and the additional address ought to be discountenanced.

I come to the accusation of filing the further counter affidavit to delay hearing of the case. Thus, issue of abuse of judicial process is raised against the defendants. This further counter affidavit must be distinguished from the further affidavit filed out of time by the claimants, for the rules of this Court actually provides for it; and the law is settled that, processes provided for in the rules of courts and filed out of time, the courts could always extend time and order payments of default fees on such processes. But it is a different ball game where such processes are not expressly provided for, but could only be filed by the leave of court. Any affidavit, after the further and better affidavit of the claimant, being sue generis in originating summons, could only be filed by leave of court, sought and obtained. In such situation, to get the nod of the court, the person filing must be above board and act fast; and not be seen, as trying to use the process for some other improper motive, such as delay tactic – see Eze v. FRN (2017) LPELR-42097 (SC) 41-43, particularly at 41, A-C, where the law on this aspect was succinctly stated:

“It is the law that if a party (a counsel in this case) is embarking deliberately on dilatory or delay tactics, the Court can lawfully stop him in his tracks and take action against his interest without flouting the provisions of section 36(1) of the Constitution. Also, any person who unduly and deliberately delays the proceedings of the Court will have himself to blame if the Court takes any adverse decision against him based on such unnecessary delay.”

Apart from the reason earlier given, I equally found that, the further counter affidavit was not filed bona fide. Its main purpose was to delay the hearing of the case, otherwise, the defendants would not file it on the very day the matter was for the second time adjourned for definite hearing. They would have filed it earlier, knowing fully well that they ordinarily had no further right without leave to file the processes. Acting with speed in such instance, is very important in persuading the Court of the propriety of the further counter affidavit. Delay, they say, defeats equity. Merely saying that the defendants were ready too to go on that date does not signify their readiness when they had a process with potential to clog the wheel of progress in the matter, if the Court had to grant another adjournment for the other side to study the new process. The purpose of the sham further counter affidavit and the additional written address was to scuttle the hearing. That is why it was filed on the very day the matter was to be heard.

No explanation was made as to what prevented the defendants from filing it earlier than this. The learned counsel just argued that, because the claimants filed further affidavit, and new issues were raised, the defendants had corresponding right to file theirs. That is preposterous and haughty. Leave of court is not got on a platter of gold, especially where the applicant is dilatory. For this additional reason, the further counter affidavit and the additional written address are additionally liable to be discountenanced. But I cannot throw out the baby with the bathwater. The baby here is the ASLGLA No. 5, 2011 attached to the further counter affidavit. It is a fuller version of the one attached to the counter affidavit, which did not have the signature page. For these reasons, I must take cognisance of it. First is that, a court is presumed to know the law and bound to apply the law, even though, not pleaded nor cited before it; and for this reason, under judicial obligation to take notice of statutes once cited and look for it. It cannot ignore a statute once cited or it becomes aware of it from whatever source – University of Uyo & Ors v. Akpan (2013) LPELR-199995 (CA) 51, C-E; Chedi & Anor v. AG Federation (2006) LPELR-11806 (CA) 17, A-C; and Ali v. FRN (2016) LPELR-42990 (CA) 14-16, A.

Secondly, it is a certified true copy [CTC], and CTC is admissible without proof – see Kawu v. The Minister, FCT (2016) LPELR-41142 (CA) 9, A-E. There being no allegation of forgery, I must take cognisance of it and determine the issue of the effect of its heading. The argument of the learned counsel to the claimants that, the subjoined part now supplied is not related or connected with the earlier exhibited part cannot be right. I could find in the subjoined part or newly supplied part, which is the second page, clearly written at the right top part, leaning to towards the end, “Local Government (Amendment No.5) Law, 2011.” This document has been described as “Local Government (Amendment No. 5) Law 2011 in section 1 of the first page originally exhibited with the counter affidavit; meaning that, the subjoined part is a continuation of the same document. Thus, the descriptive words, as quoted above, which appeared on the subjoined part, clearly established the relationship between the two parts. This is exactly the same pattern by which nexus was established amongst the different pages of all the statutes exhibited by the claimants. So, there is clear nexus between the originally exhibited part and the newly joined part. A person who wishes to disprove CTC must do more than the mere ipse dixit in paragraph 8 of the further affidavit – see Okelola v. Adeleke (2004) LPELR-2438 (SC) 19, C-E; Adelaja v. Fanoiki & Anor (1990) LPELR-110 (SC) 23-24, D-C; and especially Ahmed & Ors v. CBN (2013) JLP 25892 (SC):

“It is the certification by the appropriate officer that makes the document authentic. If the applicants seriously contend that the judgment of His Lordship was not signed, the proper thing to do to establish that fact is to exhibit the original copy of the judgment, not a certified true copy.”  

That is the voice of the supreme oracle of law on this issue. If the defendants sought to prove that, this bill was not duly passed into law, they ought to have obtained and exhibited CTC of the Hansard of the Anambra State House of Assembly on the day the Bill was allegedly passed to law. Let me add that, the claimants would do well to depose to affidavit alleging forgery and submit to the appropriate authorities, if they still feel strongly that the signatures on the document were forged. As for me, I have to obey the law by giving the necessary presumption of law to the certified true copy of a public document, which doubles as a statute. Thirdly, being a statute, the Court could even request for it from counsel in open Court in the event that, it could not easily access it by itself and counsel could furnish the Court in open Court too. It is for these reasons that Order 3, Rule 17(b) of the NICN Rules exempts it from being exhibited in the affidavit in originating summons. It is not supposed to be in the affidavit in the first instance; therefore, its exhibition in the further counter affidavit cannot detract from its nature and the legal benefit of judicial notice conferred on statutes.

In any case, must I ignore it merely because it is exhibited with the ill-fated further counter affidavit, when it has been cited before me; and start searching for another copy by myself, when the law and the rules of this Court placed the burden of judicial notice on me. Such circuitous way of doing things and wasting time is not sensible, I therefore cognisance the one that is presently before me. In any case, I don’t know what further thing the claimants wanted to say on ASLGLA No. 5, 2011 that they didn’t have the opportunity to say earlier in their further affidavit. If they left what should be said then or wrongly shifted it to the written or oral addresses, I’m sorry, there is no room to correct this through sham further-further affidavit, otherwise, there would be no end to filing of affidavits – see Wahab & Anor v. Aliyu (2015) LPELR-40395 (CA) 27-28, F-B.

If they were playing chess game with the fact that the defendants originally did not file the composite law relied upon, and for that reason, withheld some of the weapons in their armory, that is their misfortune, for all along, the defendants had said they relied on this law. Being a statute to be judicially noticed, the defendants are therefore at liberty to produce it at any time, since they are not even under obligation to produce it.  When this law was cited in the counter-affidavit and written address of the defendants, if the claimants had any objection against its authenticity that was when they ought to have carried out their homework and react in their further affidavit. Therefore, with the exception of the ASLGLA No. 5, 2011 attached to the further counter affidavit, the further counter affidavit of the defendants and their additional written address, are hereby discountenanced and struck out. I now move to the NPO.

I take the first ground, which is that pre-action notice was not served on the defendants. I found on page 58-127, copies of notice of intention to commence legal proceedings served on the Acting Chairmen of the 20 Local Governments and the Attorney-General of Anambra State; and duly acknowledged as received – see 58-127 of file [supra]. My take is that, local governments in Nigeria, being creations of section 7(1) of the 1999 Constitution, each state of the federation is mandated to, “ensure their existence under a law which provides for the establishment, structure, composition, finance and functions of such councils.” Pursuant to the provisions of section 7(1) of the 1999 Constitution, ASLGL 1999 was passed. It is this law, in conjunction with section 7(1) of the 1999 Constitution that, makes a local government a legal personality. Being the law that made it a distinct legal personality, it this law that must provide for how it could sue or be sued and all issues connected therewith and not section 11(2) of the ASSPL 1999 cited by the learned counsel to the defendants. Section 11(2) of the ASSPL 1999 only applies to the core civil servants and their functionaries that work directly with the governor or executive arm of government and not those that work in the other separately created distinct entities like local governments.

And I have not being told that the ASLGL 1999 made provision for service of pre-action notice. The right to pre-action notice, being a waivable procedural right, I don’t think a court is under obligation to search another statute to see if the defendants are entitled to pre-action notice, once the statute cited does not confer them with such a right. In a nutshell, section 11(2) of the ASSPL is totally inapplicable to the action commenced against the local governments in Anambra. Likewise, the issue of practice direction issued by the Chief Judge of Anambra State that, pre-action notices be first filed in court before service, with the utmost respect to the learned Chief Judge, cannot be right within our cannon of laws. If indeed there exist such practice direction: none has been shown to me or exhibited, nor the details to identify it provided, such practice direction, would be null and void, being an addition to the provisions of the substantive law, which has sufficiently covered the field – see INEC v. Musa (2003) LPELR-24927 (SC) 108, C-F, where the Supreme Court opines that, the doctrine of covering the field ‘can’ arise in two distinct ways.

It appears from the word ‘can’ used in that statement that, the ways in which the doctrine could apply is not closed. Since the law validly enacted by a State House of Assembly is superior to bye-law or subsidiary legislation, which rules of court are, it follows that, where rules of court attempt to make additional hurdles, not created in the substantive law of the State Assembly, the doctrine would apply to make such additional provisions inoperative. Secondly, since the rules of one court only bind actions filed in that court, the practice direction of the Chief Judge Anambra State, with due respect, is not binding on actions filed in this Court – see Owoniboys Technical Services Limited v. John Holt Limited (Yamaco Div.) LPELR-2855 (SC) 15, D-E:

“…appeals to the Supreme Court from the Court of Appeal are guided by the Supreme Court Rules, the Supreme Court Act 1960 as amended and section 213 of the 1979 Constitution. The Court of Appeal cannot in this respect make rules to bind the Supreme Court. In Nneji v. Chukwu (1998) 3 NWLR (Pt. 81) page 184 the Court held that the rules of practice made for one Court, cannot be binding on another Court, either higher or lower, in the judicial hierarchy.”

That knocks out ground 1 of the NPO. It is accordingly dismissed. I move to the second ground of objection.

Ground 2 of the NPO deals with the impropriety of commencing this suit via originating summons because, as argued by the learned counsel to the defendants, the facts of the case are hotly disputed. The Court of Appeal succinctly stated the position of law on this area in Oloyede v. Oloyede (2014) LPELR-24384 (CA) 29, A-D:

“The conflict to necessitate calling of oral evidence must be material conflict of material facts that cannot also be resolved from the entire paragraphs of the entire affidavits and counter affidavits in the matter or, if any, other evidence available through them such as documents attached thereof.”

All I can see on the facts of the case are sham disputes. There is no material fact in the case or issue that could not be resolved via the depositions contained in the affidavits and the documents copiously adduced in evidence by the parties. I agree entirely with the learned counsel to the claimants that, the suit is essentially about construction of statutes and instruments. The main issues that come up for trial, in my view, are: whether by virtue of the relevant provisions of the statutes in issue, the claimants are entitled to the benefits claimed; and if, have they been fully paid or waived their right to the full payment? The first aspect is purely a matter of construction of statutory provisions, upon which declarations must be made. The second aspect is ancillary. Whether or not sufficient documents have been presented to determine these issues is another thing. The first aspect, as could be seen, is strictly about construction of statutory provisions while, on the second aspect; reliance is placed on an alleged agreement signed. This alleged agreement; each side has given different interpretation. It is for the Court to look at it and give its own interpretation. It does not need the testimony of witnesses to construe. So, at the end, both issues are about construction of instruments, documents and statutes. And those few instances of disputed facts could well be resolved by the copious documents adduced. Thus, the second ground of the NPO lacks merit and is accordingly dismissed.

But before I sign off this part, let me add my comment on the issue of non-certification of the documents exhibited by the claimants. Most of these documents are actually statutes that do not need certification or being exhibited, for the Court is under obligation to accord them judicial notice. Once cited, that is all. I invoke section 12(2)(b) of the National Industrial Court Act 2006 to save the few that needed certification. As to the issue of non-certification of the pre-action notices because they were officially stamped, thus, they became public documents, and needed certification to be tendered. I cannot find any argument that is more preposterous. The ones submitted with the defendants are the ones that became public documents and not the private copies and properties of the claimants that have always being with the claimants simply because they were stamped received. They are the private property of the claimants evidencing service: not more, not less. Custody is the major factor that determines what becomes a public document – see PDP v. INEC (2014) LPELR-23808 (SC) 42-43, A-G. This ground too, is dismissed.

It means that, the road is cleared for the Court to look at the merit of the case; and there I go.

  1. Decision on the Merit of the Substantive Suit

The learned counsel to each side formulated different issues or questions for the determination of the suit in accordance with the slants being projected. Originating summons must be filed with questions for determination. The learned counsel to claimants framed two questions for determination and two differently worded issues for determination. By the authority of the Supreme Court in Olafisoye v. FRN (2004) LPELR-2553 (SC) 38, B-D, it appears that, questions posed for construction might be different from issues for determination or might be the same thing. Okezie & Ors v. CBN & Ors (2012) LPELR-8023 (CA) 12-14, E-B appears to suggest that, issues for determination are the same with questions for determination or must, at least, arise from the questions for determination in originating summons. Whatever the case may be, I do not see much difference between the questions formulated and the issues formulated, but only that, the purported issues look more like how questions are framed in originating summons than the purported questions framed. Questions are framed in originating summons to stress construction of instruments, documents and statutes rather than, to merely claim reliefs. Since it is the duty of the claimant in originating summons to formulate questions for construction, I adopt the two issues formulated by the learned counsel to the claimants, which to me, look more like questions than the two questions framed. They are, as reproduced at page 6-7 of this judgment earlier on. I would take them together at once and but, in reverse order, as stated herein below:

ISSUE 1: 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?

 

And

 

ISSUE 2: 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.

The arguments here dovetailed on the applicable law between the ones cited by the learned counsel to the claimants and the learned counsel to the defendants. The arguments of the defence counsel is that, the claimants had two-year tenure, which they completed at the dissolution of the council; and learned counsel relied on the ASLGLA No. 5, 2011. The learned counsel to the defendants reacted by saying the ASGLA No. 5, 2011 is a mere bill not passed to law. I have observed earlier in this judgment during my session on the preliminary issues that, the claimants did not challenge the ASLGLA No. 5, 2011 on the ground that it was forged. They merely said in paragraph 8 of their further affidavit that:

“Contrary to the statement made in the said paragraph 6 of the Defendants’ Counter Affidavit, the “supposed law” cited as Anambra State Local Government Law (Amendment No. 5) 2011 therein was only a BILL (proposing two years) & NOT a law. The substantive law is the Local Government Law 1999 and the Local Government (Amendment No. 8) Law 2014; Anambra State Public Officers’ Salaries Law, 2007 marked as Exhibit A1-A3 of the Claimants.”

That is the only paragraph in the further affidavit that deals with that issue; and it is crystal clear that, it did not raise the issue of forgery of the signatures on it and neither did it even say the reason why it is a Bill. But the document being before me, I observe that, it is written on top of it “A Bill for a Law to amend the Local Government Law, 1999.” I cannot close my eyes to this. What is the effect of this on the status of the document? Being that a document speaks for itself, this statement by the document suggests that it is a Bill and not Law. But the nature and processes a piece of document takes to become a statute suggests otherwise. The provisions of a document must not be construed in isolation: they must be construed together – Malagwi v. Song (2015) LPELR-25634 (CA) 28, A-B. First, at section 1 of the document with side note: ‘Short title and Commencement’, it provides thus, “This Law may be cited as the Local Government (Amendment No. 5) Law 2011, and shall come into force on 26th day of May, 2011.” It is not in doubt that, section 1 of the document is part and parcel of it and it clearly states that, it is a Law and not Bill. Be that as it may. The real issue is: when is a Bill said to become Law?

In answering the above question, I take refuge under the canopy of the Supreme Court in AG Bendel State v. AG Federation & Ors (1981) LPELR-605 (SC) 30-31, G-C:

“The prescribed procedure will be found in Sections 54,55, and 58 of the Constitution and may be summarised as follows. The power of the National Assembly to make laws shall be exercised by bills passed by both the Senate and the House of Representatives…and shall thereafter assented to by the President…”

In Ibrahim v. Barde & Ors (1996) LPELR-1407 (SC) 40, C-F, the factors, the absence of which show that, a Bill is not Law, are enumerated:

“Therefore on the face of the said law, having regard to the absence of the name of the Governor signifying his assent to the Bill to become law and the date of such signification, coupled with the absence of the name of the Clerk to the Niger State House of Assembly certifying that the law was duly passed by the Niger State House of Assembly, the said law published as Legal Notice No. 3 of 1993 cannot be regarded as law enacted by the House of Assembly within the meaning of s. 277(1) of THE CONSTITUTION. Thus, not being law, the publication cannot confer power on the 2nd defendant to issue the Order Exhibit 7 under which the 1st appellant was appointed.” [Underline supplied for emphasis]

At the underlined portion of the quotation, it is made abundantly certain that, as at the time of assent by the Governor, the document remains a Bill and it is to the Bill that the Governor assents; and immediately after assent to the Bill, the document becomes Law. It is clear that, the removal of the word ‘Bill’ is not sacrosanct for the document to become law but rather, the assent of the Governor and the certification of the clerk are. In fact, the document must remain a Bill as at the time it is assented. It is clear that, the document in issue herein satisfied all the requirements enumerated in Ibrahim v. Barde by the Supreme Court. The Governor of Anambra State duly endorsed his signature on it. The Clerk of the Anambra State House of Assembly duly certified that, it was duly passed by the House of Assembly of the State and appended his signature after certifying that he has carefully compared the contents with the Bill. The names of both the Governor and the Clerk that signed appeared on the columns signed by each. It is also clear that, it is signing of a bill that makes it Law. Once the requisites signatures are contained in a bill, it becomes law. I think it is when it is eventually gazetted that the word ‘bill’ is removed and replaced with the word ‘law’. From the above authorities, it is clear that, to become a law, a Bill must be assented to as a Bill and not as a Law, since it is the requisite signatures that make it law.

In fact, section 1 of Exhibit A1 [ASLGAL No. 8, 2014] relied on by the claimants provides thus: “This Law my be cited as the Local Government (Amendment No. 8) Law, 2014, and shall come into force on the 25th day of March, 2014.” From the foregoing, it is abundantly clear that, there had been some amendment(s) to the parent Local Government Law 1999 before the ASLGAL No. 8 2014 relied on by the claimants; and the ASLGLA No. 5, 2011 is before the ASLGAL No. 8, 2014. Let me observe that, the claimants also exhibited incomplete statute – see p. 16-19 of file for the ASLGL 1999, which is exhibited in incomplete form of just four pages. The first page shows sections 1-3 while the second page starts on section 52 and ends at section 55, omitting section 4-51, the 3rd page starts at section 71, omitting section 56—70; and the assent page is also conspicuously absent. And this happens to be the main statute on the issue of three-year tenure relied on by the claimants. In fact, paragraph 5 of the affidavit in support did not also accurately tag the statutes exhibited with correct identification marks. Be that as they may.

The ASLGLA No. 5, 2011 was not being seen in the further counter affidavit for the first time, as it was earlier exhibited by the defendants in their counter affidavit, though in incomplete form and the defendants had described it as law and not bill therein – paragraph 6 – also in their written address. The claimants reacted to these processes and did not raise the issue of forgery but merely said it was not a Law but a Bill – paragraph 8 of the further affidavit. If the defendants woke up from their slumber to supply the complete legislation, which they initially failed to submit, where does the issue of surprise arise, as if the learned counsel did not know that a bill must be assented before it becomes law? I think if the claimants had actually woken up from their slumber to also supply the composite ASLGL 1999, it must be prevented from doing so. This is laughable.

From all I have said on this issue above, it is clear that, the objection of the learned counsel to the claimants against this document lacks merit; and is accordingly dismissed. I hold that the ASLGLA No. 5, 2011 is a law duly passed and assented to, as required by law. Thenceforth, it shall be referred to as Law and not document. I now move to the issue of whether it is the statute that governs the cause of action or contract in issue.

In answering this question, I found that the claimants did not exhibit their letters of inauguration or election into the council of the local governments in issue. It follows that, without these letters; one cannot discern the commencement date of their tenure to know which law applies. This is fatal to their case, in view of the fact that, the issue of tenure is very germane to the determination of the reliefs claimed – see West African Chemical Company Limited v. Caroline Poultry Farm (Nig.) Ltd (1999) LPELR-6228 (CA) 9-10, D-A, where the Court of Appeal stated the effect of failure to tender vital evidence:

“…Exhibit K which was initiated by the respondent through P.W.2, the result of the test sent from Vom Veterinary Research Institute contradicts the evidence of P.W.2 and P.W.3 that spraying of the poultry was responsible for the death of the chickens. The respondent carefully avoided tendering that document and the presumption is that evidence which could be, and is not produced would, if produced, be unfavourable to the person who withholds it.”

I found too that, in Exhibit C1 of paragraph 9 of the affidavit of the claimants, which is at page 45-46 of file, their solicitor stated their tenure to be between 2014-2016 [two years] while in Exhibit C2 of the same paragraph, which is at page 48-49 of file, in another letter by the same solicitor, this was recounted and now stated to be between 2014-2017 [three years]! I also found 2014-2016 asserted in another official document exhibited by the claimants, headed “Anambra State Local Government Councilors (2014-2016) – see page 31 of file. This seems to cast a lot of doubt as to the assertion of three-year tenure. How this error occurred was not accounted for! This is serious contradiction in the case of the claimants – see Molegbemi & Ors v. Ajayi & Ors (2011) LPELR-4501 (CA) E-A, where the Court of Appeal stated the effect of material contradiction in evidence:

“The law is that, where there are material or grave contradictions in the evidence of a party and which contradictions touch on a vital or material point in issue, such party’s case becomes weakened. The result is that such party’s case is taken with a pinch of salt and therefore regarded as unreliable and therefore of no probative value.”

I also found that, the very months covered by the salaries and allowances being claimed, were not specifically stated nor the very dates of the claimants’ assumption of offices and dissolution. Thus, it is not possible to decipher when the claimants assumed offices, to determine the applicable law to their cause of action; and when they exited, to know if they were forcibly chased out, as being claimed, and to determine whether they are indeed entitled to the reliefs claimed and the extent of their entitlements; or whether they completed their tenure, as claimed by the defendants – see Okomu Oil Palm Company Limited v. Iserhienhien (2001) LPELR-2471 (SC) 8-9, E-C, where the Supreme Court stated that, failure to tender vital documents establishing employment rights, is fatal to the case of the plaintiff – see also Morohunfola v. Kwara State College of Technology (1990) LPELR-1912 (SC) 15-16, C-C. The failure of the claimants in the instant case, to exhibit their letters of election or inauguration or appointment into the various offices in issue and to give evidence to these effects and failure to state the exact date of their alleged dissolution, all which are with them, is akin to failures to tender vital documents articulated in Okomu Oil Palm’s case and Morohunfola’s case cited above, and therefore, these authorities are applicable to elective or appointive offices, which the claimants purportedly occupied. The reliefs claimed are special damages, which, must be carefully particularised and proved to the hilt, which they failed to do – Adama Beverages Limited v. Akam & Ors (2015) LPELR-40417 (CA) 27-28, B-C.

In view of the above, I am left with no option other than to agree with the learned counsel for the defendants that, the applicable law is the ASLGLA No. 5, 2011 and that, the claimants had a two-year tenure hence, the dissolution of the Anambra State local governments councils occurred at the expiration of their two-year tenure, since the laws cited by the learned counsel to the claimants are not the applicable laws. Even if my holding above is wrong, I am of the firm opinion that, it would still not affect the outcome of the case, in that, having not deposed to evidence as to when the claimants assumed offices and when exactly they were dissolved, and having equally failed to tender or exhibit relevant document as earlier pointed out above, the claimants have simply not placed sufficient materials before me to answer the question posed:  “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?” Thus, issue 1 is resolved against the claimants and in favour of the defendants.

I move to the second question, which is on withholding of or refusal to pay outstanding allowances. It is an ancillary question to the first. It is invariably connected with the 1st question just answered against the claimants and the negative answer against the claimants affects it. Why? If the claimants have two-year tenure, as found, then, it cannot be determined which portion of their alleged allowances belong to the unearned extra year, been claimed, as the claimants did not break the alleged allowances down year-by-year. Being special damages, it means the claim fails on account of not being sufficiently itemized and particularised – see Union Bank PLC v. Onuorah & Ors (2007) LPELR-11845 (CA) 15-16, B, where the Court of Appeal explained the issue of particularization and the 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]

Having failed to sufficiently particularise the periods covered by the allowances and having found that, the claimants are only entitled to two-year tenure, it means the relief of outstanding allowances fails. This remains so even if the claimants were entitled to three-year tenure, since they did not give sufficient evidence of the period covered by the allowances and did not tell the Court that they were never paid any allowances before their dissolution. There remains another aspect of the second question to be examined next. This is the issue of waiver raised.

The defendants have deposed in paragraphs 9, 10 and 11 of their counter affidavit that, towards the end of the tenure of the claimants the defendants could not pay the claimants due to economic downturn and therefore negotiated with the claimants through their accredited representatives and agreement reached; and lesser amounts were paid to the claimants in full settlement of the moneys owed them; and they individually signed and that, evidence is exhibited. The claimants responded to these in paragraphs 7, 13 and 14 of their further affidavit. The gist of their response is that, the claimants planned to protest the non-payment of their allowances towards the second term bid of the Governor: Willie Obiano, in order to dissuade them, N500,000 was paid each of the claimants with promise to pay the outstanding after re-election; and that, the claimants never gave authorization to anybody to negotiate on their behalf. It was also stated in paragraph 7 that, the payment was for support and campaign for the second term bid of the Governor.

Whatever is to be made of these statements, one thing is certain, it is clear that, the claimants admitted collecting moneys and signing the document in prove; the only disagreement is the purpose for which the moneys were collected. It is clear too that, the claimants did not present any document to support the purported agreement they had with the defendants that further payments would be made later. And they each went ahead to sign documents! It might well be a case of one side outsmarting the other, but I must work with the documents presented before me. Now, to resolve this tiny area of disagreement, resort must be made to this document(s), which both sides agreed was signed, to see what the contents are. The said document is Exhibit B series. At the head of the first in the series, I found the flowing:

“ACKOWLEDGMENT

This is to certify the final payment/settlement in lieu of my severance allowance as Executive Chairman under Anambra State Local Government for the period 27th January 2014 to 26th January 2016.”

Though, it is clear that, only chairman was mentioned in the quotation above but this first page contains 23 names and there are only 21 Local Governments in Anambra State though, 20 listed in this suit, leaving out Nnewi North Local Government. It means two more names than those of the chairmen were contained on the list. After all, only one chairman can exist at a time for a local government. The implication is that, the list was not only meant for the chairmen; and therefore, the description of the purpose of the list was not only applicable to the chairmen but to all the political office holders of the local governments of Anambra State affected. So, what is true of first of Exhibit B series [Exhibit B] must be true of all of Exhibits B1, B14, B20, B25, B34, B40, B47, B53, B57, B64, B70, B81, B89, B93, B99, B106, B114, B120, B130, B135, and B146. This is more particularly so, considering the fact that, all, collected the same uniform sum of N500,000 and the documents made in uniform process with the names of each of the local governments appearing on the series, after B1, which has, as its title, “Councilor Leaders Signature”. It shows that, the moneys were paid about the same time and the defendants could not have had agreement with the chairmen alone on the same subject matter without carrying along the leaders of the councils and the councilors. A document speaks for itself – see Ozomaro & Ors v. Ozomaro & Anor (2014) LPELR-22663 (CA) 44, C-D:

“I am of the considered view that the position of law that a document speaks for itself and thus the intention of the maker of a document is to be discovered from the ordinary meaning to be ascribed to words in the document in question, is applicable to a Will in as much as it is a document.”

The Court of Appeal stated the natures of oral testimonies and documentary evidence and the reason why documentary evidence is given preeminence in Haliru v. FRN (2013) LPELR-22078 (CA) 31-32, E-A:

“The importance of documentary evidence in adjudications, both civil and criminal, cannot be over emphasized, [sic] It has been crowned as the best evidence to be furnished in proceedings. This is because, it is permanent, incorruptible and indestructible unlike viva voce testimony, which ooze out from the vocal cord of mart [sic], which is transitory and subject to manipulation.”

All of exhibit B series are connected by a common tread, as explained above, and must therefore be construed together – see Adelabu & anor v. Saka & Ors (2015) LPELR-26024 (CA) 27, A-E. I must observe that, the very first of these documents is a separate document, which might not have been seen by the claimants when they signed their individual and separate documents, all connected as stated, but why I am persuaded, as expressed above is that, there is no deposition in the affidavits of the claimants stating my foregoing misgivings on a document fully presented before them now, even if not seen before the suit. The allegations made in made in paragraphs 4.3 of the written address in support of the originating summons and 4.03 of the RPL about the monies meant to pay the claimants being shared between the chairman and the State Government and that, the agreement in question showed it was between the State Government and the Chairmen, are mere allegations from the ipse dixit of counsel, not having being contained in any of the two affidavits of the claimants, the Court cannot countenanced them – see Olagunju v. Adesoye & Anor (2009) LPELR-2555 (SC) 38, D, where the Supreme Court cutely said “It is trite that counsels’ address cannot take the place of evidence.” Apart from this, it is equally clear that, two different allegations were made in paragraphs 4.3 and 4.03 of both addresses. One claims diversion for electioneering purposes while the second claimed sharing between the alleged criminal cohorts. This amounts to speaking from both sides of the mouth. Law does not permit this – see Oladapo & Anor v. Bank of the North Limited & Anor (2000) LPELR-5284 (CA) 29, A-B.

The claimants are therefore bound by the agreement they entered with the defendants that, the payment of N500,000 extinguished all their claims on the defendants. This conclusion is unassailable when it is realised that the claimants who accepted they collected the N500,000 as settlement not to protest did not tender any document in support of this oral deposition. To make matters worse for the claimants, their case on this issue was not even consistent when their lawyer proceeded in their reply on points of law at paragraph 5.07 to say, the said agreement was tainted with misrepresentation, fraud and mistake. When a party raises misrepresentation, fraud and mistake, the implication is that, such party accepts the truth of the existence of the contract, as presented by the other side but says the contract was entered into by him under fraudulent misrepresentation induced by the other side. The same thing applies to mistake. The implication of pleading mistake is that, the pleader says, he enters into the contract in error; and as such, the contract was not his. The bottom line in both is that, the existence of the contract is not contested but the process of entering into it is being contested. This is made abundantly clear in Daewoo Nigeria Limited v. Ntia & Ors (2015) LPELR-40603 (CA) 8-9, F-B:

“A misrepresentation is an untrue statement made by one party to a contract to the other before or at the time of contracting with regard to some existing fact or to some past event which is one of the causes that induced the contract…The above definition clearly shows that for misrepresentation to take place, there must be a contract properly so called.”

The same thing is applicable to mistake – see First Fuels Limited v. The Vessel ‘Leona II’ & Anor (2002) LPELR-1284 (SC) 20-22, G-C. Apart from the inconsistency inherent in the two versions of the claimants’, as presented by their counsel, of particular reference is that, the claimants did not adduce any evidence as to how the misrepresentation occurred or how they made the mistake being claimed? A party, more particularly, a claimant, must present consistent case. Inconsistency in the case of a party leads to disbelief in the Court, as a party cannot be allowed to blow hot and cold on the same issue – see Aregbesola v. Owolade & Anor (2015) LPELR-24293 (CA) 30-31, E-A, where the Court of Appeal opined that:

“A party shall be consistent in the presentation of his case both at the trial and on appeal. A party cannot be allowed to blow hot and cold at the same time, as that is evidence of lack of confidence and good faith in one’s case.”

In view of all that I have said above, I have no hesitation in agreeing with the learned counsel to the defendants that the claimants have waived their right to any further claims against the defendants, as they are estopped by the doctrine of estoppel contained in the agreement they duly signed with the defendants, as earlier reproduced above. It follows that; the defendants are not withholding or refusing to pay the claimants any outstanding allowance. The claimants have been fully settled. It is thus clear that, the claimants have no case against the defendants. In concluding this case, I need to make some general remarks on the appraisal of the case as whole.

CONCLUSION

In conclusion, I need say this:

“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, when it held that:

“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 not in doubt that, the case is essentially asking for declaratory reliefs. Of the four reliefs claimed, the first two are declaratory. The other two are dependent on the first two for their existence – they are ancillary reliefs. I have shown, apart from the fact that, the defence presented a good defence; the claimants did not present enough materials to prove their case. How do you explain the failure of the claimants to exhibit their instruments of inauguration or assumption of office, when their swearing-in took place or when they took office and exactly the day they were dissolved, yet they asked for reliefs based on tenure, which is dependent on knowledge of the exact date of assumption of office and the exact date of dissolution, and yet they expect judgment in their favour!

In declaratory actions, cogent evidence must be placed before the Court, more so, in originating summons, where the claimants are expected to exhibit all instruments and documents in issue. It would be seen from the above authorities and Order 3, Rule 17(1)(b) of the NICN Rules that, this case offends the principles on which declaratory reliefs are granted and the rules governing originating summons in this Court. Even if the defendants did not file any process at all, the claimants would still have failed, for the fatal gaps uncovered in their suit – see Nwoga v. Imo State Independent Electoral Commission & Ors (2019) LPELR-47562 (CA) 41-43, E-B, where the Court of Appeal admirably expatiated the law in relation to situations like explained above; and specifically in relation to originating summons:

“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.”

The suit, as presently constituted clearly offends the law as stated in Chukwumah v. SPDCN (1993) LPELR-864 (SC) 64-65, G-B; SPDC Ltd v. Frontline Television Ltd (2011) LPELR-4952 (CA) 10-11, D-A; Nwoga v. Imo State Independent Electoral Commission & Ors (2019) LPELR-47562 (CA) 41-43, E-B; and Order 3, Rule 17(1)(b) of the NICN Rules, all which have been cited and quoted earlier abovein.  In view of my reasoning from the beginning to this juncture, I entertain no hesitation that, the case of the claimants lacks merit in its entirety. It is liable to be dismissed. It is hereby dismissed in its entirety. I award no cost.

The above is the judgment of the Court. Judgment is accordingly entered today under the hand of the presiding judge.

…………………………..

HON. JUSTICE OLUWAKAYODE O. AROWOSEGBE

Presiding JUDGE

ENUGU DIVISION

NATIONAL INDUSTRIAL COURT OF NIGERIA

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