Incorporated Trustees of Human Development Initiative & 39 Ors -VS- Governor of Abia State ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD

PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA

DATE: JANUARY 23, 2020

SUIT NO. NICN/ABJ/47/2019

BETWEEN

1. Incorporated Trustees of Human Development Initiatives (HDI)

2. Incorporate Trustees of Media Rights Agenda (MRA)

3. Enough is Enough Nigeria (EIE) Ltd/Gte

4. Registered Trustees of Institute of Human Rights and

Humanitarian Law (HIRHL)

5 Socio Economic Rights Initiative (SERI) Ltd/Gte

6. Incorporated Trustees of Social Watch Initiative Nigeria

7. Women Advocates Research and Documentation

Centre (WARDC) Ltd/Gte.

8. Legal Resources Consortium(LRC) Ltd/Gte

9. Committee for Democracy and

Rights of the people (CDRP) Ltd/Gte

10.Incorporated Trustees of Community Outreach for

Development and Welfare Advocacy (CODWA)

11. Upline Resources Foundation Ltd/Gte

12.United Action for Democracy (UAD)

13. Incorporated Trustees of Echoes of

Women in Africa Initiative (ECOWA)

14. The African Center for Media & Information

Literacy Ltd/Gte

15. Incorporated Trustees of Women�s Rights&

Development Centre

16. Incorporated Trustees of International

Centre on Reproductive Rights (INCREASE)

17. Ayodeji Kolawole

18. Tunde Asaju

19. Center for Rights and Development

20. Incorporated Trustees of Legal Resource Research&

Documentation Center

21. Incorporated Trustees of HEDA Resource Center

22. Community Policing Partners for Justice Security and

Democratic Reforms Ltd/Gte

23. Legal Defence and Assistance Project Ltd/Gte

24. Civil Resource Research and Documentation Center

(CIRRDOC) Ltd/Gte

25. Center for Sustained Dialogue (CSD))

26. CAFSO-WRAG for Development Nigeria

27. Incorporated Trustees of Center for Labour Studies

28. Incorporated Trustees of Carmelite Prisoners�

Interest Organisation (CAPIO)

29. Incorporated Trustees of NOPRIN

30. Confluence of Rights Nigeria Ltd/Gte IFFS/AP

31. Incorporated Trustees of Human Rights Social Development &

Environmental Foundation (HURSDEF)

32. Incorporated Trustees of Citizens Center for

Integrated Development and Social Rights

33. Persons with Disabilities Action Network Ltd/Gte

34. Incorporated Trustees of Clean Foundation

35. Minority Gender Action Ltd/Gte

36. Concern for Women and Children Development Initiative Ltd/Gte

37. Human Rights Agenda Network

38. Coalition onInternational Criminal Court in Nigeria Ltd/Gte

39. Incorporated Trustees of PRAWA

40. Incorporated Trustees of Foundation for

Environmental Rights Advocacy & Development- Claimants

AND

1.Governor of Abia State

2.Governor of Adamawa State

3.Governor of Akwa Ibom State

4.Governor of Anambra State

5.Governor of Bauchi State

6.Governor of Bayelsa State

7.Governor of Benue State

8.Governor of Borno State

9.Governor of Cross Rivers State

10.Governor of Delta State

11.Governor of Ebonyi State

12.Governor of Edo State

13.Governor of Ekiti State

14.Governor of Enugu State

15.Governor of Gombe State

16.Governor of Imo State

17.Governor of Jigawa State

18.Governor of Kaduna State

19.Governor of Kano State

20.Governor of Katsina State

21. Governor of Kebbi State

22.Governor of Kogi State

23.Governor of Kwara State

24.Governor of Lagos State

25.Governor of Nasarawa State

26.Governor of Niger State

27.Governor of Ogun State

28.Governor of Ondo State

29.Governor of Osun State

30.Governor of Oyo State

31.Governor of Plateau State

32.Governor of Rivers State

33.Governor of Sokoto State

34.Governor of Taraba State

35.Governor of Yobe State

36.Governor of Zamfara State

37.Abia State House of Assembly

38.Adamawa State House of Assembly

39.Akwa Ibom State House of Assembly

40.Anambra State House of Assembly

41.Bauchi State House of Assembly

42.Bayelsa State House of Assembly

43.Benue State House of Assembly

44.Borno State House of Assembly

45.Cross Rivers State House of Assembly

46.Delta State House of Assembly

47.Ebonyi State House of Assembly

48.Edo State House of Assembly

49.Ekiti State House of Assembly

50.Enugu State House of Assembly

51.Gombe State House of Assembly

52.Imo State House of Assembly

53.Jigawa State House of Assembly

54.Kaduna State House of Assembly

55.Kano State House of Assembly

56.Katsina State House of Assembly

57.Kebbi State House of Assembly

58.Kogi State House of Assembly

59.Kwara State House of Assembly

60.Lagos State House of Assembly

61.Nasarawa State House of Assembly

62.Niger State House of Assembly

63.Ogun State House of Assembly

64.Ondo State House of Assembly

65.Osun State House of Assembly

66.Oyo State House of Assembly

67.Plateau State House of Assembly

68.Rivers State House of Assembly

69.Sokoto State House of Assembly

70.Taraba State House of Assembly

71.Yobe State House of Assembly

72.Zamfara State House of Assembly

73.Attorney General of the Federation

74.Revenue Mobilization, Allocation & Fiscal Commission-Defendants

REPRESENTATION

Mrs Chisom Ihekwaba, for the claimants.

M. A. Umar, Senior State Counsel, for the 2nd defendant.

Ebiboye Erebi, for the 6th and 42nd defendants.

Mrs Funsho Lawal, Solicitor-General, Kwara State, for the 23rd and 59th defendants, with A. M. Bello, Director of Civil Litigation and Mrs K. M. Abimbola, Assistant Chief State Counsel.

No legal representation for any of the other defendants.

JUDGMENT

INTRODUCTION

1. The claimants filed this action on 7th March 2019 vide an originating summons with an affidavit and written address in support. The claimants seek the following reliefs:

A declaration that the pension of a Governor and Deputy Governor of a State is a remuneration of a public holder in terms of section 32(d) of the Third Schedule to the 1999 Constitution and �condition and welfare of labour�in terms of item 34 of Part I Second Schedule to the 1999 Constitution.
A declaration that the 37th and 72nd defendants do not have the legislative competence to make law with respect to remuneration, including the pension of I to 36th defendants or of any other public official in the Federal Republic of Nigeria listed in section 32(d) of the Third Schedule to the 1999 Constitution.
A declaration that it is only the 74th defendant that has the exclusive powers to stipulate the remuneration, including the pension of a Governor or Deputy Governor of the States or any other official listed in item 34 of Part I, Second Schedule of the 1999 Constitution, and section 6(1)(d) and Parts A and B of the First Schedule to the Revenue Mobilization Allocation And Fiscal Commission Act.
A declaration that the Governors and Deputy Governors Pension Law 2014 of Akwa Ibom State, Lagos State Governor and Deputy Governor Pensions Law of 2007, Rivers State Pensions for (Governor and Deputy Governor) Law 2004, Governor and Deputy Governor (payment of pension) Law No 12 of Kwara State 2010, or any other such Law of any of the 37th to 72nd defendants stipulating the remuneration including pension of any of the 1st to 36th defendants contravenes sections 1(3) and 4(2)of the 1999 Constitution and therefore is ultra vires, null and void.
An order nullifying the said Governors and Deputy Governors Pensions Law 2014 of Akwa Ibom State, Lagos State Governor and Deputy Governor Pensions Law of 2007, Rivers State Pensions for (Governor and Deputy Governor) Pensions Law of 2012, Oyo State Pension (Governor and Deputy Governor) Law 2004,Governor and Deputy (Payment of Pension)Law No 12 of Kwara State 2010,or any other such law enacted by any of the 37th to 72nd defendants stipulating the pension of any of the 1st to 36th defendants for being contrary to sections 1(3)and 4(2)of the 1999 Constitution and therefore is ultra vires, null and void.
An order directing the 1st to the 36th defendants to recover forthwith from any former Governor or former Deputy Governor any pension payment or out of office benefit paid or delivered to such former public officer beyond the remuneration stipulated by the Revenue Mobilization Allocation and Fiscal Commission Act.

2. In seeking these reliefs, the claimants are praying the Court for the determination of the following questions:

Whether the 37th to 73rd defendants can enact a law on a matter in the Exclusive Legislative list, or on a matter on the Concurrent Legislative list in the Second Schedule to the 1999 Constitution on which the National Assembly has already enacted a law.
Whether, considering item 34 of the Exclusive Legislative list in the Second Schedule Part I and section 32(d) ofthe Third Schedule to The 1999 Constitution in respect of �condition and welfare of employment� and remuneration of certain public officials in the Federation of Nigeria, the 37th to 72nd defendants can enact a law in respect of pension of a Governor or Deputy Governor of a State irrespective of the Revenue Mobilization And Fiscal Commission Act enacted by the National Assembly taking into account that the said item 34 of the Second Schedule Part I provides that the National Assembly shall have the exclusive legislative power in respect of: �34. Labour�condition, safety and welfare of labour�� And section 32(d) of the Third Schedule provides that the Revenue Mobilization Allocation and Fiscal Commission shall have the power to: �Determine the remuneration appropriate for the political office holders including the President, Vice President, Governors, Deputy Governors, Ministers, Commissioners, Special Advisers, Legislators and the holder of the offices mentioned in section 84 and 124 of this Constitution�.
Whether �pension� of the Governor and Deputy Governor of a state is �Remuneration� within the meaning of section 32(d) of the Third Schedule to the 1999 Constitution, and if the answer is in the affirmative, whether any of the 37th -72nd defendants can enact a law stipulating the pension of the 1st – 36th defendants and their deputies irrespective of the Revenue MobilizationAllocation and Fiscal Commission Act.
Whether any law on pension of a Governor and Deputy Governor of a State enacted by the State House of Assembly is ultra vires unconstitutional, null and void.

3. Only the 2nd, 6th, 23rd, 42nd and 59th defendants defended this action.

4. The claimants in the instant suit had applied to be joined as the 3rd to 42nd defendants in Barrister Bala Ngilari v. Adamawa State Government and 2 ors Suit No. NICN/ABJ/356/2015. They were so joined; and they filed a preliminary objection canvassing issues similar to the instant suit. This Court accordingly raised the question whether the instant suit is not an abuse of court process. Parties were asked to address the Court in writing on the said issues. In the decision part of this judgment, I shall accordingly in that order consider the issue of abuse of court process before considering the merit of this case. But first the submissions of the parties on the respective issues i.e. as to abuse of court process and as to the merit of the case.

SUBMISSIONS AS TO ABUSE OF COURT PROCESS

The Claimants� Submissions

5. The claimants in their written address submitted a sole issue for determination: whether or not this present suit constitutes an abuse of court process. To the claimants, an abuse of court process generally means when a court process is initiated with malice or in some premeditated or organized vendetta, aimed at frustrating either the quick disposal of the matter or the abatement of the matter for no good cause. The process could also be said to be abused where there is no iota of law supporting it. In other words, the process is premised or founded on frivolity or recklessness. That it is trite law that an abuse of court process occurs where a plaintiff institutes multiple actions on the same subject matter between or against same parties on the same issues during the pendency of another same suit, citing R-Benkay Nigeria Ltd v. Cadbury Nigeria Ltd [2012] LPELR-7820(SC), Saraki v. Kotoye [1992] 9NWLR (Pt.264)156 at 188 andOkorodudu v. Okorodudu [1977] 3SC 21.Thus, that a typical example of an abuse of court process is where two or more processes of similar nature are against the same parties, in respect to same subject matter and reliefs. That from these authorities, the law is explicitly clear on when an action can be said to constitute an abuse of court process and this instant suit clearly does not fall within that purview, citing Umeh v. Iwu [2008] 8NWLR (Pt.1089)225 at 243-244, which held that to sustain a charge of abuse of process, there must co-exist inter alia: a multiplicity of suits; between the same opponents; on the same subject matter; and on the same issues. That all these pre-conditions are mutually inclusive as they are conjunctive.

6. The claimants went on that all these conditions just set out guide the Court on abuse of process; and as evidenced in the reliefs sought in the originating processes of both suits currently pending before this Court, none of them fall under these pre-conditions. That Suit No NICN/ABJ/356/2015 relates to the employment of the claimant as Deputy Governor in the service of the 1st defendant while the subject matter of this instant suit is on interpretation of the issues of law pertaining to the remuneration, including pension and out of office allowances for the 1st to 36th defendants and their deputies, as well as the ability of the 37th to 72nd defendants to enact laws with regards to such remunerations. That these are two very different subject matters.

7. Also, that the parties in both suits are very different from one another. That while Suit No. NICN/ABJ/356/2015 was instituted by one Barrister Bala James Nggilari against the Government of Adamawa State & 2 ors, the instant suit is filed by different NGOs against the Attorney-General of the Federation, the 36 States Governors of Nigeria and the 36 State Houses of Assembly. That it is trite that where the words of any section are clear and unambiguous, they must be given their ordinary meaning unless this would lead to absurdity or be in conflict with other provisions of the Constitution and effect must be given to those provisions without any recourse any other consideration, citingShell Petroleum Dev. Co. (Nig) Ltd v. FBIR[1996] 8NWLR(Pt.466)256. Therefore, that to determine whether an action constitutes an abuse of court process the laid down pre-conditions earlier postulated must be followed strictu sensu.

8. Lastly that assuming without conceding that this instant suit constitutes an abuse of court process, the appropriate and proper action to be taken by the court will be to order for the consolidation of both cases for final determination,referring to Nasr v. CHE Ltd[1977] 5SC11 andKutse v. Balefur[1994] 4NWLR (Pt.337)196 at 209. In conclusion, the claimants urged the Court to rule in their favour and hold that this suit does not constitute an abuse of court process.

The 2nd Defendant�s Submissions

9. As for the 2nd defendant, although it was indicated on 19th November 2019 during the adoption of written addresses that he filed a written address on the question of abuse of court process, no such address was found in the case file.

The 6th and 42nd Defendants� Submissions

10. The 6th and 42nd defendants started off with a statement of the relevant facts. That the plaintiffs in this suit, on 16th November 2016 filed a motion on notice seeking the leave of this Court to be joined as interested parties in Suit No. NICN/ABJ/356/2015 between Barr.Bala James Nggilari v. Adamawa State Government &anor, which suit is questioning the constitutionality of the Adamawa State Governor�s Pension (Amendment) Law 2010. That the plaintiffs� said application was granted; hence the claimant in the said suit amended its statement of facts to reflect this development. The said statement of facts was filed on 18th April 2019.On 7th March 2019, the plaintiffs filed this suit, notwithstanding the pendency of another suit, with similar subject matter and parties, at the registry of this Court against the36 State Governors; State Houses of Assembly and others in Suit No. NICN/ABJ/47/2019 between Incorporated Trustees of Human Development Initiative & 39 ors v.Gov. of Abia State 73 ors.The 1st defendant in Suit No. NICN/ABJ/356/2015, Barr.Bala James Nggilari v. Adamawa State Government & 40 ors, is a party and the plaintiffs in this instant case are defendants. Given these facts, this Court suo moto ordered parties to address the Court on whether this suit as presently constituted amounts to abuse of court process.

11. The 6th and 42nd defendants then submitted a sole issue for determination: whether this suit as presently constituted does not amount to abuse of court process. To them, this present suit as filed by the plaintiffs amounts to abuse of court process. That given the facts that the plaintiffs are parties to a pending suit before this Court on the same subject matter, the 2nd and 38th defendants in this suit herein are parties i.e. Adamawa State Government.That the term abuse of court process has a fluid meaning but of great importance and significance covering a wide range of facts and also covers any situation where the process of the Court is used to harass, annoy and irritate the opponent, relying onOkorodudu v. Okoromadu[1977] 3 SC 21, Okafor v. AG, Anambra State[1991] 6 NWLR (Pt. 200) 659, Kotoyo v. Saraki[1992] 9 NWLR (Pt. 264) 156, Ode v. Balogun[1999] 10 NWLR (Pt. 622) 214, Agwasim v.Ojichie[2000] 10 NWLR (Pt. 882) 613 and Dingyadi v. INEC (No.2)[2010] 18 NWLR (Pt. 224) 154.Similarly, that Kolawale Ind. Ltd v. AG, Federation[2012] 14 NWLR (Pt. 1320) 221 held that it is an abuse of process when a court process is not supported by any law. To the 6th and 42nd defendants, therefore, this suit as presently constituted is neither supported by the Rules of this Court, National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, nor any other law. Also that in African Reinsurance Corp. v. JDP Construction Ltd[2003] 13 NSCQR (the page is not supplied) it was held that it amounts to abuse of court process for a party who is aware of a suit to file a counter action on the same subject matter, referring also to NIM Bank Ltd v. Union Bank Nig. Ltd [2004] 4 SC (Pt. I) 143, which held thata subsequent action filed by the Respondent seeking a relief that is diametrically opposed to the earlier one filed against him, amounts to abuse of court process.

12. Thus, thatparagraphs 4, 5 and 6 as well as the reliefs sought in the amended statement of facts in Suit No. NICN/ABJ/356/2015,Barr. Bala James Nggilari v. Adamawa State Government, wherein the plaintiffs are parties, relates to the enforcement of the provisions of the Adamawa State Governor�s Pension (Amendment) Law 2010; while this present suit is challenging the constitutionality of the various Governors and Deputy Governors Pension Laws of the 36States of the Federation. To the 6th and 42nd defendants, the case of the plaintiffs as presently constituted amount to multiplicity of action,as neither the Rules of this Court nor any other applicable procedural law supports the plaintiffs� action, referring to African Reinsurance Corp. v. JDP Construction Ltd [2003] 13 NSCQR (the page is not supplied).

13. That it is worthy of note that the plaintiffs in their written address filed on 24th June 2019 argued that Suit No. NICN/ABJ/47/2019 and NICN/ABJ/356/2015 were instituted by different parties as well as their subject matters. To the 6th and 42nd defendants the Court should discountenance this submission as canvassed by the plaintiffs as both suits relate to the validity of the pension laws of the various states of the Federation, which includes the Adamawa State Governor (Amendment) Pension Laws of 2010.Furthermore, that provisions for counterclaim/action as it relates to the circumstances of this case is provided for in Order 32 Rules 5and6; hence the non-compliance with the Rules of this Court by the plaintiffs in instituting this suit is a fundamental defect, which renders this suit incompetent and robs this Court of the jurisdiction to entertain same, referring to APC& anor v. PDP[2015] LPELR-40596,Nwankwo v. Yar�Adua[2010] 12 NWLR (Pt.1209) 518 SC andCol Kaliel (Rtd) v. Alhaji Aliero [1994] 4 NNLR (Pt. 597) 139.Given these authorities, the 6th and 42nd defendants submitted that the failure of the plaintiffs to comply with the Rules of this Court amounts to an abuse of court process. That the infraction is fundamental, which renders the entire case incompetent and robs this Court of the jurisdiction to entertain same, citing AG, Cross Rivers State v. FRN[2019] 10 NWLR (Pt.1681) SC401 at 464 and Madukolu v. Nkemdilim[1962] 1 All NLR (Pt. 4) 587.

14. Furthermore, that if this suit is not dismissed for want of complying with due process of law and grounds of multiplicity of action, then it may lead to a situation where this Court, may reach conflicting decisions and a judicial confrontational stance over a particular subject matter as it relates to the constitutionality and enforcement of the Governor and DeputyGovernor Pension Laws of the 36 States of the Federation, citing NIM Bank Ltd v. Union Bank Nig. Ltd [2004] 4 SC (Pt. I) 143, Tonec Nig. Ltd v. FHA[2009] 12NWLR (Pt. 1173) 358 and FOM Plc v. UBA Plc[2010] 1 NWLR (Pt. 1176) 583. In conclusion, the 6th and 42nd defendants urged the Court to resolve the sole issue raised for determination in their favor and proceed to dismiss this suit in its entirety with a substantial cost, as same is an abuse of court process.

The 23rd and 59th Defendants� Submissions

15. To the 23rd and 59th defendants, it is worthy to note from the onset that, the claimant in Suit No. NICN/ABJ/356/2015 is seeking a declaration and order of the Court directing the defendants i.e. the Adamawa State Government and Attorney General of Adamawa State to make payments to the claimant his pension, remunerations and other entitlement highlighted in the Adamawa State Governor�s Pension (Amendment) Law 2010 enacted by the Adamawa State House of Assembly.In the same vein, that the plaintiffs in this present suit filed an application to be joined as interested parties in the said Suit No. NICN/ABJ/356/2015, while seeking the same reliefs as those being sought in the present suit, Suit No. NICN/ABJ/47/2019.In other words, the reliefs being sought by the plaintiffs in this case have been earlier submitted for adjudication before the Court in Suit No. NICN/ABJ/356/2015 and the action is pending when the present suit was filed.

16. That in order to appraise the issue at hand on whether the process of the Court is not being abused, it is pertinent to know what constitute an abuse of court process, citing Ojo & 3 ors v. Olawore & 5 ors[2008] 6-7 SC (Pt. II) 54 at 66-67 as to what constitutes abuse of court process, which manifests in both a proper or improper use of the judicial process to irritation and annoyance of an opponent, and the efficient and effective administration of justice such as instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues, or where there is no iota of law supporting a court process or where it is premised on frivolity or recklessness.In other words it is the inconvenience and inequities involved in the aims and purposes of the action that constitutes abuse of process as where the court�s process is used mala fide or merely to waste the valuable time of the court, referring to Alade v. Alemuloke[1988] 1 NWLR (Pt. 69) 207, Saraki v. Kotoye[1992] 9 NWLR (Pt.264) 156,Central Bank of Nigeria v. Ahmed[2001] 5SC (Pt. II) 146; [2001] 11 NWLR (Pt. 724) 369 at 409- 410, Onyeabuchi v. INEC[2002] 4 SC (Pt. II) 27; [2002] 8 NWLR (Pt. 769) 417, Okafor v. Attorney-General of Anambra State[1991] 7 SC (Pt. II) 138; [1991] 6 NWLR (Pt.200) 659 at 681, Paves Co. Ltd v. IBWA[1994] 4 NWLR (Pt.347) 685 and Sodipo v. Lemminkainen Oy[1992] 8 NWLR (Pt. 258) 229.

17. The 23rd and 59th defendants went on that from what constitutes abuse of court process, it is deducible that the line is an open ended one.However, that multiplicity of actions on the same subject matter against the same opponent on the same issues, and the existence of two similar processes issued against the same party in respect of the exercise of the same right and subject matter are two good instances where an abuse of the court process is occasioned. That in applying this to the case at hand, the question that readily comes to mind is whether the plaintiffs in Suit No. NICN/ABJ/47/2019 who were joined as interested parties in Suit No: NICN/ABJ/356/2015 can maintain this case. This is because, the reliefs the plaintiffs are seeking in both suits are the same and the judgment of the Court in Suit No. NICN/ABJ/356/2015 would have taken care of the issues begging for determinationinthepresentSuitNo. NICN/ABJ/47/2019. That it is thus safe to conclude that the present suit with the same set of plaintiffs claiming the same or similar reliefs against same defendants in Suit No. NICN/ABJ/356/2015 constitute multiplicity of action on the same subject matter against same opponent on the same or identical issues, urging the Court to hold that this suit is an abuse of the process of this Court. That where a suit is tainted with the element of abuse, the proper order to make in that instance is dismissal, citingOnyeabuchi v. INEC[2002] 4 SC (Pt. II) 27 at 41 andArubo v. Aiyeleru[1993] 24 NSCC (Pt. 1) 255. In conclusion, the 23rd and 59th defendants urged the Court to hold that the present suit constitutesan abuse of the process of this Court and dismiss same.

SUBMISSIONS AS TO THE ORIGINATING SUMMONS

The Submissions of the Claimants

18. To the claimants, they are seeking the orders of Court to nullify various State Laws stipulating pension and other remuneration for Governors and Deputy Governors. That the basis of the submission is that the 1999 Constitution has given the 74th defendant (the Revenue Mobilization, Allocation & Fiscal Commission, RMAFC for short) the exclusive power to set the remuneration of such public officials. That pension is part of the remuneration of public officials; therefore, any law that stipulates pension of such public officials already covered by the constitutional mandate of the 74th defendant is ultra vires, null and void.

19. The claimants continued that they are persons and organizations registered as Non-Profit, Non-Political and Non-Governmental under the relevant laws in Nigeria whose diverse mandates include promoting and protecting rights and good governance in Nigeria. They are also spread across the country with members located in all States of the Federation and the Federal Capital Territory. That the 16th and 17th claimants are Nigerian citizens, tax payers and interested in the management of the common resources of the Federation or any part thereof. Accordingly, that this application is brought for the interpretation of the issues of law pertaining to the remuneration, including pension and out of office allowances for the 1st to 36th defendants and their deputies, as well as the ability of the 37th to 72nd defendants to enact laws with regard to such remunerations. That in compliance with the rules of this Court, the claimants have accompanied their application with an affidavit, and seek to rely on all the averments therein.

20. The claimants submitted three issues for determination, namely:

Whether this action discloses a reasonable cause of action and if yes whether the plaintiffs have the legal personality and the locus standi to institute the action.
Whether pension and out of office allowances of a Governor and Deputy Governor constitute �remuneration� and �condition and welfare of employment� in terms of section 32(d) of the 3rd Schedule to the 1999 Constitution and item 34 of the 2nd Schedule to the 1999 Constitution respectively.
Whether the State House of Assembly can enact a law to stipulate the remuneration of a State Governor or his deputy beyond that stipulated by the 74th defendant.

21. On issue (1), the claimants submitted that a cause of action is a factual situation, the existence of which entitles a person or a group of persons to obtain from the court a remedy against another person. It comprises the combination of facts which give rise to a right to sue against the wrongful acts of the defendants, citingAlese v. Aladetuji[1995] 7 SCNJ 40 and Savege v. Uwaechia[1997] All NLR (Pt. 1)251. That the claimants brought this action against the acts of the 1st-72nd defendants as clearly stated in paragraphs 5, 6, 7 of the affidavit in support of the originating summons. The paragraphs further disclosed that the defendants enacted State laws that are contrary to the already existing Federal enactment and the Nigerian Constitution which empowers only the 74th defendant to make stipulations for pension and other remuneration of the 1st -36th defendants. That section 4(5) of the 1999 Constitution states that: �If any law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the national assembly shall prevail, and that other law shall to the extent of the inconsistency be void�. That from this, the issue before theCourt constitutes a reasonable cause of action, urging theCourt to so hold.

22. On whether the claimants have the legal personality and the locus standi to sue, the claimants submitted thatthe law is clear that an individual (natural person) or a corporate entity can institute a legal action. That the claimants are all legal entities except the 17th and 18th defendants who are natural persons as deposed to in the affidavit in support of the summons. Furthermore, that the registered objectives of the claimants as contained in paragraph 4 of their affidavit vests the claimants with the standing to prosecute this action; particularly so, as far as the law accords recognition to public interest litigation in Nigeria, citingEjeh v. Attorney General of Imo State[1985] 6NCLR 390, which held that any person who is convinced that there is an infraction of the provisions of the Constitution can go to the court and ask for appropriate relief if reliefs is required; and Alo v. Speaker, Ondo State House of Assembly & anor [2018] LPELR-45143(CA). The claimants then urged the Court to take a revolutionary departure from the ubiquitous old concept of locus standi, bearing in mind that the Constitution is supreme and its provisions should not be reached. That this is a public interest litigation and the Court has moved from the narrow interpretation of sufficient interest to allow Non-Governmental Organizations pursue the right of ignorant members of the public, citingFawehinmi v. Akilu[1987] 4NWLR (Pt. 67) 847. Accordingly, that the claimants have the locus standi to institute this action.

23. Issue (2) is whether pension and out of office allowances of a Governor and Deputy Governor constitute �remuneration� and �condition and welfare of employment� in terms of section 32(d) of the 3rd Schedule to the 1999 Constitution and item 34 of the 2nd Schedule to the 1999 Constitution respectively. To the claimants, the term �remuneration� has been described to include the salary, wages, emoluments, gratuity, pension and any other allowance an employee is entitled to during and after employment. That Blacks Law Dictionary defines remuneration as payment or compensation, and further definitions include that remuneration is the compensation that one receives in exchange for the work done or services performed. That typically, this consists of monetary rewards, also referred to as wages or salary. That Peters of Oron v. Symmons [1924] 5NLR 97 said that the remuneration comprises salaries, wages, allowances and commissions; and Economic Export Ltd v. Jimoh Odutola[1958] WNLR 239 stated that the absence of the express mention of the word remuneration does not mean that it cannot be inferred from the surrounding circumstances. It is, therefore, the submission of the claimants that pension and other retirement or disengagement allowances and out of office allowances of a Governor and Deputy Governor constitute �remuneration� and �welfare of employment� in terms of section 32(d) of the 3rd Schedule to the 1999 Constitution and item 34 of the 2nd Schedule to the 1999 Constitution respectively. Consequently, that the enactment of the Revenue Mobilization Allocation and Fiscal Commission Act by the National Assembly has stipulated the remuneration of the Governor and Deputy Governor of States in the Federation. That Governors and Deputy Governors are in public service, which automatically makes them public servants and as such item 34 of the 2nd Schedule to the 1999 Constitution applies to them.

24. Issue (3) is whether the State House of Assembly can enact a law to stipulate the remuneration of a State Governor or his Deputy beyond that stipulated by the 74th defendant. Here, the claimants submitted that by virtue of the provisions of item 34 Part I of the 2nd Schedule to the 1999 Constitution, only the National Assembly can enact a law with respect to the condition and welfare of public officials or any other employee in any part of the Federation. Furthermore, that by virtue of section 32(d) of the 3rd Schedule to the 1999 Constitution, the Revenue Mobilization, Allocation and Fiscal Commission has the exclusive power to stipulate the �remuneration� of certain public office holders in Nigeria, including the Governors and their Deputies. That the intention of the Constitution by these provisions is to ensure uniformity of the remuneration of such public office holders across the Federation and to reduce arbitrariness by the State officials.

25. The claimants went on that the enactment of the Revenue Mobilization Allocation and Fiscal Commission Act by the National Assembly has deprived the 37th to 72nd defendants of the legislative competence to legislate on such matters due to the operation of the doctrine of �covering the field�, citing AG, Abia State & 35 ors v. AG, Federation [2002] 6NWLR (Pt. 763) 264, Ladoke Akintola University of Technology v. Z.O. Ogunwobi[2006] 4NWLR (Pt.971) 590, AG, Ogun State v. AG, Federation[1982] 3NCLR 166,AG, Ogun State v. Aberuagba[1985] 1 NWLR (Pt.3)395, Osun State Independent Electoral Commission & anor v. Action Congress& ors[2010] 19NWLR (Pt. 1226) 273 and INEC v. Musa[2003] LPELR-1515(SC). It is, therefore, the submission of the claimants that the 37th to the 72nd defendants lack the legislative authority to enact a law governing the remuneration of the 1st to 36th defendants as the field has already been covered by the enactment of the Revenue Mobilization Allocation and Fiscal Commission Act by the National Assembly. That the power of the State House of Assembly to make laws regarding pension for the State Governor and Deputy Governor must be in conformity with the pension set by the 74th defendants.In conclusion, the claimants urged the Court to grant the reliefs they seek and to so hold in their favour.

The Submissions of the 2nd Defendant

26. The 2nd defendant merely adopted the issues as formulated by the claimants. On the claimant�s issue (1), which is as to this suit disclosing a reasonable cause of action and the claimants having the locus to institute the suit, the 2nd defendant started with what he termed as preliminary remarks/argument. To the 2nd defendant, this suit is incompetent and ought to be struck out for lack of joinder of necessary parties to this suit.That the claimants are claiming as per relief (vi) for �An order directing the 1st defendant to recover forthwith from any former Governor or Deputy Governor any pension payment or out of office benefit paid or delivered to such former public officer beyond the remuneration stipulated by the Revenue Mobilisation, Allocation and Fiscal Commission Act�. That on the face of the originating summons, none of the former Governors or their Deputies is joined as a party in this suit. That it is glaring from the reliefs sought by the claimants that they were directed at the rights and interest of the former Governors and their Deputies and, therefore, if granted, though not conceded, it is the former Governors and their Deputies that will be affected. That the relief(s) is/are not targeted against any of the incumbent 1st to the 36th defendants and their Deputies as they do not derive any right under the Governor�s Pension Law, referring toADC v. Bello [2017] 1 NWLR (Pt. 1545) 112 as to who is a necessary party in a case.

27. It is thus the submission of the 2nd defendant that this matter as presently constituted cannot be effectively and effectually be determine in the absence of the former Governors and their Deputies who will be affected by the outcome of the judgment one way or the other as the reliefs sought by the claimants is directed at the rights and interest of the former Governors and their Deputies only.That the claimants are challenging the 1st to 73rd defendants for enacting the Governors� Pension Laws in their various States, but the effect of the challenge is to deprive the former Governors and their Deputies of their established rights as beneficiaries under the said laws.That the exclusion of the former Governors and their Deputies will occasion a serious miscarriage of justice against the formerGovernors and their Deputies under the principle of audi alterem partem. That it would also amount to hearing and determining this matter exparte the former Governors and their Deputies. That it is trite law that where a necessary party is not joined in a suit, the court or tribunal lacks the requisite jurisdiction to entertain and determine the matter, citingADC v. Bello(supra) at 138, urging the Court to decline jurisdiction and strike out this matter.

28. The 2nd defendant proceeded to argue as to the issues submitted by the claimants in the event that the Court is not disposed to striking out this suit at this stage. Regarding the claimants� issue (1), the 2nd defendant submitted that the answer to the issue is in the negative, referring toIwara v. Itam[2009] 17 NWLR (Pt. 1170) 337 at 368-369 as to definition of the phrase �cause of action�. That the bundle or aggregation of facts which the law will recognise as giving the claimants a substantive right to make the claim does not exist in this case as they misconceived the constitutional provision on the issue of remuneration and pension.

29. It is the contention of the 2nd defendant that contrary to the averment in paragraph 5 of the affidavit in support of the originating summons, there is no Federal enactment on the pension of former Governors and their Deputies and neither has the 74th defendant made any stipulation for the pension of former Governors and their Deputies. Furthermore, that neither the 74th defendant nor the National Assembly has the vires to make laws for the grant of pension for former Governors and their Deputies.That the body empowered to make law for the grant of pension and gratuity for the former Governors and their Deputies is the House of Assembly of the State, referring to section 124(5) of the 1999 Constitution.

30. The 2nd defendant continued that the interest which the claimants alleged to have in the payment of pension to former Governors and their Deputies, if any, is an interest common to all members of the public and it is trite law that public rights common to all members of the public is not litigable, referring to Bewaji v. Obasanjo [2008] 9 NWLR (Pt. 1093) 540 at 576. Accordingly, that the claimants� action did not disclosed any reasonable cause of action and same ought to be dismissed.

31. That for a person to have locus standi in action, he must be able to show that his civil rights and obligations have been or are in danger of being infringed. Thus, that to entitle a person to invoke the judicial powers of the court, he must show that either his personal interest will immediately be or has been adversely affected by the action, or that he has sustained an injury to himself, which interest and injury is over and above that of the general public, referring to Ogbuehi v. Governor of Imo State [1995] 9 NWLR (Pt. 417) 53 at 57. That the claimants failed to show in their affidavit in support of the originating summons how their rights or those of their members were adversely affected by the enactment of pension laws of former Governors and their Deputies over and above other Nigerians, citingIwara v. Itam[2009] 17 NWLR (Pt. 1170) 337 at 342 which frowned on meddlesome interlopers and busybodies in suits. That the claimants failed to show their entitlement to institute this action, urging the Court to so hold and resolve issue (l) in favour of the 2nd defendant.

32. The claimants� issue (2) is whether pension and out of office allowances of a Governor and DeputyGovernor constitute �remuneration� and �condition of welfare of employment� in terms of section 32(d) of the Third Schedule, and item 34 of the 2nd Schedule, to the 1999 Constitution. To this, the 2nd defendant answered in the negative. That the Black�s Law Dictionary, 10th Edition at page 1315 defines �Pension� as:

(i) A regular series of payment made to a person (or the person�s representatives or beneficiaries) for past services or some type of meritorious work done; esp: or such a series of payment made the Government.

(ii) A fixed sum paid regularly to a person (or to the person�s beneficiaries), esp. by an employer as a retirement benefit (emphasis is the 2nd defendant�s).

And on page 1487 defines �Remuneration� to mean:

(i) Payment, compensation; esp. for a service that someone has performed.

(ii) The act of paying or compensation.

33. It is the 2nd defendant�s submission that while �Pension� is payment for past services and or as retirement benefit, �Remuneration� on the other hand is payment or compensation for services for present or current work performed by someone. The 2nd defendant, therefore, contended that pension cannot and will not constitute �remuneration� in terms of item 32(d) of the 3rd Schedule and item 34 of the 2nd Schedule to the 1999 Constitution. That item 32(d) of the Third Schedule, Part I of the 1999 Constitution only empowers the Revenue Mobilisation Allocation and Fiscal Commission to determine remuneration for political office holders and no more. That the former Governors and their Deputies are no longer political office holders and, therefore, not covered under item 32(d) of the 3rd Schedule to the 1999 Constitution, while item 34 of the Second Schedule, Part I has no phrase like �condition and welfare of employment� as quoted and canvassed by the claimants. That it is pertinent to state that in both item 32(d) of the Third Schedule and item 34 of the Second Schedule there is no mention of the word �Pension� for former Governors and their Deputies to confer on the National Assembly or the Revenue Mobilisation, Allocation and Fiscal Commission the power to legislate or determine the pension to be paid to the former Governors and their Deputies.

34. The 2nd defendant contended that the non-mention of �Pension for former Governors and their Deputies� in both item 32(d) of the Third Schedule and item 34 of the Second Schedule to the Constitution clearly and eloquently shows that pension and out of office allowances of a Governor and Deputy Governor is not �remuneration� or �condition and welfare of employment�. To the 2nd defendant, the terms are not and cannot be the same because remuneration is paid to serving public officer whereas pension is only paid to a person who left the public office, and neither can pension for former Governors and their Deputies constitutes �remuneration� or �condition of welfare of employment�. That the claimants herein are subtly trying to import what is not stipulated in the Constitution.And the legislatorsare neither frugal nor economical with words in discharging their law making process if not it would have expressly stated so, referring to AG, Lagos State v. AG, Federation [2014] 9 NWLR (Pt. 1412) 217 at 275-276 as to the express mention of one thing excluding all else. That the argument and submission of the claimants under their issue (2) is without basis and the cases of Peters of Oron v. Symmons (supra) and Economic Export Ltd v. Odutola(supra) they cited do not help their case and same should be discountenance. The 2nd defendant then urged the Court to resolve issue (2) in his favour.

35. Issue (3) is whether the State House of Assembly can enact a Law to stipulate the remuneration of a State Governor or his Deputy beyond that stipulated by the 74th defendant. To the 2nd defendant, reliefs (i)-(vi) which the claimants are seeking are all directed against former Governors and their Deputies Pension Laws enacted by some State Government including Adamawa State (the 2nd defendant).That the claimants have spiritedly tried without success to say that pension and out of office allowances of Governors and Deputy Governors constitute �remuneration� and �condition and welfare of employment� in terms of item 32(d) of the Third Schedule and item 34 of the Second Schedule to the 1999 Constitution.The 2nd defendant submitted that he has amply and eloquently demonstrated in his submission on issue (2) that pension will not and cannot constitute �remuneration� and �condition and welfare of employment� because remuneration is paid for present or current service rendered, while pension is paid for past services performed and or as retirement benefits. Furthermore, that in both item 32(d) of the Third Schedule and item 34 of the Second Schedule to the 1999 Constitution, which donate the power to the Revenue Mobilisation, Allocation and Fiscal Commission to stipulate remuneration for political office holders, and the National Assembly to legislate on matters contained in item 34, there is no mention, even tangentially, of pension of former Governors and their Deputies in either of the two Schedules to the extant Constitution. That it is trite law that the express mention of one thing in a statutory provision automatically excludes any other stipulations which would otherwise have been applied by implication, citingAG, Lagos State v. AG, Federation(supra) and CAC v. Seven-Up Bottling Co. [2017] 5 NWLR (Pt. 1558) 241 at 258. To the 2nd defendant then, pension of the former Governors and their Deputies cannot constitute remuneration whatsoever as they deal with two different matters.

36.That the argument and submission of the claimants in their second to the last paragraph on issue (3) to the effect that the 37th to the 72nd defendants lacks the legislative authority to enact a law governing the remuneration of the 1st to 36th defendants as the field has already been covered by the enactment of the Revenue Mobilisation, Allocation and Fiscal Commission Act by the National Assembly, andthe power of the State House of Assembly to make law regarding pension for the Governor and Deputy Governor must be in conformity with the pension set by the 74th Defendant, is borne out of misconstruction and misconception of the unambiguous provisions of section 124(l0, (4) and (5) of the 1999 Constitution. That while section 124(l) donates power to the House of Assembly to prescribe by law such remuneration and salaries of the Governor and other officers mentioned in subsection (4) to the section, subject to the amount as shall have been determine by the Revenue Mobilisation, Allocation and Fiscal Commission,there is no mention of pension and gratuity or former Governor and Deputy Governor in section 124(l), (2), (3) and (4).

37. However, that section 124(5) of the 1999 Constitution made provision for the grant of a pension or gratuity to or in respect of a person who has held office as Governor or Deputy Governor by the House of Assembly without subjecting the powers of the State House of Assembly to that of the Revenue Mobilisation, Allocation and Fiscal Commission. Accordingly, the 2nd defendant submitted that the only authority empowered by the Constitution to grant pension or gratuity to former Governors and Deputy Governors is the State House of Assembly and no other.

38. The 2nd defendant went on that this case as presently constituted is targeted against the pension of former Governors and their Deputy Governors and not remuneration and salaries of incumbent Governors and Deputy Governors. That if the claimants herein had calmly and dispassionately read the unambiguous provision of section 124(5) of the 1999 Constitution they would have realised that the chapeau of the section, that is section 124(l) donates the powers to prescribe such remuneration and salaries of Governor and other public office holders subject to the amount as shall have been determined by the Revenue Mobilisation, Allocation and Fiscal Commission. However, section 124(5) did not subject the power of the House of Assembly to that of the Revenue Mobilisation, Allocation and Fiscal Commission in granting pension or gratuity for former Governors and their Deputies, referring toCAC v. Seven-Up Bottling Co.(supra) at 258-259, which held that courts are not expected to read into words meanings which were never intended by the legislature.

39. It is the further submission of the 2nd defendant that by virtue of the impregnable provision of section 124(5) of the 1999 Constitution the pension and gratuity of Governors and Deputy Governors do not need to be the same with the remuneration of a serving Governor or Deputy Governor as determine by the Revenue Mobilisation, Allocation and Fiscal Commission. That the Adamawa State Governor�s Pension (Amendment)Law 2010 made pursuant to section 124(5) of the1999 Constitution is for all intents and purposes not contrary to or in contravention of any subsisting legislation or the Constitution. That if the draftsman of the Constitution intended to give the Revenue Mobilisation, Allocation and Fiscal Commission powers to stipulate pension or gratuity of former Governors and Deputy Governors, he would have clearly stated so and the claimants would not have been speculating or navigating in the realm of conjectures.

40. Furthermore, that there is no law for now enacted by the National Assembly or stipulations by the Revenue Mobilisation, Allocation and Fiscal Commission as regards the pension of former Governors and Deputy Governors and, therefore, the sacred �Doctrine of Covering the Field� does not apply in this matter, urging the Court to discountenance all the cases cited by the claimants on the doctrine of covering the field as they go to no issue. The 2nd defendant then urged the Court to resolve issue (3) in his favour. In conclusion, the 2nd defendant urged the Court to dismiss the claimants� suit for lacking in merit.

The Submissions of the 6th and 42nd Defendants

41. The case of the 6th and 42nd defendants is that the 42nd defendant acted within the provisions of the Constitution when it enacted the Pension for Governors and Deputy Governors (and other Ancillary Matters) Cap P3 Laws of Bayelsa State 2006. The 6th and 42nd defendants then submitted a sole issue for determination, namely: whether by the provisions of section 32(d) of the 3rd Schedule to the 1999 Constitution and section 124(5) of the 1999 Constitution, the State House ofAssembly can enact law to stipulate pension for Governors and Deputy Governors of the State. The answered in the affirmative. That a community reading of paragraph 32(d) of the Third Schedule to the 1999 Constitution and section 124(5) of the same Constitution, makes it abundantly clear that the 42nd defendant acted within the Constitution especially section 124(5). That the Bayelsa State House of Assembly enacted a law onpensions for Governors and Deputy Governors in the year 2003, referring to paragraph 6(d) of the 6th and 42nd defendants� counter-affidavit and MOJ 1 annexed therein.

42. That by section 32(d) of the Third Schedule and 124(5) of the 1999 Constitution nothing precludes a House of Assembly from making laws in respect to pension for Governors and Deputy Governors as this is not provided for in the Exclusive List. It is 6th and 42nd defendants� submission that the pension for Governors and Deputy Governors Law is not inconsistent with any law made by the National Assembly, citingFRN v. Solomon[2008] 7 NWLR (Pt. 618)201 at 218. The 6th and 42nd defendants went on to refer to section 84(1), (5) and (6) of the 1999 Constitution as empowering the National Assemblyto enact law for the pension of the President and Vice President,section 124(5) as empowering the State House of Assembly to enact law for the pension of Governors and Deputy Governors if they so wish. That the sections are plain and unambiguous and it is settled that words have to be given their ordinary and natural meaning and that unless the meaning leads to absurdity, it is unnecessary to resort to other cannons of, citing Bakare v. NRC [2007] 12 MJSC 76.

43. That the doctrine of covering the field states that where there is a Federal Legislation on a subject such as the one before thisCourt, a federating State cannot enact a legislation on the same subject which is conflict and inconsistent with the of the Federal legislation, citingOSIEC v. AC[2010] 19NWLR (Pt. 1226) 273. It is, however, the submission of the 6th and 42nd defendants that the pensions for Governors and Deputy Governors (and other Ancillary Matters) Law, Laws of Bayelsa State is not inconsistent with the Constitution. That looking at the evidence and the address of the claimants, this suit is speculative as there is nothing before theCourt showing that the pensions for Governors and Deputy Governors Law enacted by the 42nd defendant is inconsistent with the Constitution. That it is trite law that the courts should not engage in speculations; andit is not the duty of this Court in the absence of evidence on the issue to either presume or to speculate, referring to the SPDCN Ltdv. Oruwari[2016] All FWLR 751 at 766 and Etisi v. State [2018] All FWLR (Pt. 920) 33 at 66.

44. That the burden of proof is on he who asserts and who will fail if no evidence is adduced, citingsection 131(l) and (2) of the Evidence Act 2011. That to discharge the burden of proof on them, the claimants must profferfacts from which the logically drawn inferences preponderates in their favour, citing Onyefeso v. Coker[1999] 1 NWLR (Pt. 588) 654 at 660. That the claimants in this case have not by credible evidence or any evidence at all shown how the 6th and 42nd defendant breached the provisions of the 74th defendant in respect of the pensions for Governors and Deputy Governors Law of Bayelsa State. In conclusion, the 6th and 42nd defendants urged the Court to dismiss this case for being a waste of time of the Court.

The Submissions of the 23rd and 59th Defendants

45. To the 23rd and 59th defendants, pursuant to section 124 of the 1999 Constitution they passed into law the Governor and Deputy Governor (Payment of Pension) Law No. 12 of 2012 to operate in the State. The law is to cater for the pension and gratuity of persons who have served as Governors and Deputy Governors in the State. That the claimants who are mostly civil society organizations now challenge the State on the ground that it ultra vires the Constitution and so want this Court to declare the law as invalid. The 23rd and 59th defendants then submitted here issues for determination:

Whether the Governor�s and Deputy Governor�s (Payment of Pension) Law No. 12 of Kwara State, 2010 is ultra-vires and contrary to the provisions of sections 1(3) and 4(2) of the 1999 Constitution of the Federal Republic of Nigeria, as amended.
Whether the pension and gratuity of Governors and Deputy Governor constitute �condition and welfare of employment� on (Exclusive Legislative List) item 34 of Part I of the Second Schedule to the 1999 Constitution of the Federal Republic of Nigeria, as amended.
Whether aside from the Revenue Mobilization, Allocation and Fiscal Commission, the 37th to 72nd defendants have the legislative competence to make laws relating to remuneration in terms of section 32(d) of the 3rd Schedule to the 1999 Constitution.

46. On issue (1), the 23rd and 59th defendants submitted that firstly, section 1(3) stipulates the importance of acknowledging the supremacy of the Constitution by which all impugned provisions of other statutes will be tested. Thus the legislative powers of the legislature cannot be exercised inconsistently with the Constitution. Therefore, where a body claims to legislate in addition to what have been enacted in the Constitution it must show that it has derived the authority to do so from the Constitution, citingINEC v. Musa[2003] LPELR-2492. Furthermore,that section 4(l) and (2) of the 1999 Constitution (an amended) vests the legislative powers of the Federal Republic of Nigeria in the National Assembly, which has power to make laws with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to the Constitution. However, section 4(3) provides that the power of the National Assembly to make Laws on any such matter included in the Exclusive LegislativeList shall, save as otherwise provided in this Constitution, be to the exclusion of the Houses of Assembly of States. That it isthe contention of the claimants that the Governors� and Deputy Governors�payment of pension Law is ultra-vires, null and void for being contrary to the provisions of sections 1(3) and 4(2) of the Constitution. To the 23rd and 59th defendants, a law will only be ultra vires when it is enacted outside the legislative powers of the House of Assembly. That given section 124 of the 1999 Constitutionthe Governor�s and Deputy Governor�s Pensions Law, having been made by the State House of Assembly for the grant of pension and gratuity for persons who had held office as Governor and Deputy Governor, derives validity and authority from the Constitution, as such same cannot be ultra vires the said Constitution, referring to Olafisoye v. FRN[2004] LPELR-2553(SC). Accordingly, that the Governor�s and Deputy Governor�s (Payments of Pension) Laws of Kwara State is in line with sections 1(3), and 4(2) as the provisions are made in strict compliance with the dictates of the Constitution. That section 124 of the Constitution allows a law of the House of Assembly for the grant of pensions and gratuity to the Governor and Deputy Governor in addition to such remuneration that shall be determined by the Revenue Mobilization, Allocation and Fiscal Commission, urging the Court to so hold and resolve this issue against the claimants to this effect that the Governor and Deputy Governor�s Payment of Pension Law No. 12 of Kwara State 2010 isnot ultra vires but validly made in accordance with the provisions of the Constitution.

47. As for issue (2) i.e. whether the pension and gratuity of Governors and Deputy Governors constitute �condition and welfare of employment�in terms of item 34 of the Exclusive Legislative List, the 23rd and 59th defendants submitted that it is trite that the National Assembly, has powers to make laws with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to the 1999 Constitution. So, where an item is not expressly listed in Part I of the said Schedule, it falls outside the exclusive legislative competence of the National Assembly and as such, can be legislated on by the States. That the claimants contended that by virtue of item 34 of Part Iof the Second Schedule to the 1999 Constitution, only the National Assembly can enact a law with respect to the condition and welfare of public officials and any other employee in any part of the Federation. In opposing this position, the 23rd and 59th defendants submitted that the pensions of Governors and Deputy Governors do not form part of the conditions, safety and welfare of labour referred to in item 34.That assuming the claimants� assertion is even true, then an Act of the NationalAssembly will be required to determine the pension and gratuity of all forms of employment whether public or private in Nigeria which cannot be the intendment of the law makers.

48. Furthermore, that assuming but not conceding that the payment of pension to Governors and Deputy Governors may be included as a condition for labour referred to in item 34 ofPart Ito the 2nd Schedule, section 4(3) provides that the power of the National Assembly to make laws on any such matter included therein i.e in the Exclusive Legislative List shall save as otherwise provided in this Constitution be to the exclusion of the Houses of Assembly of State. That these provisions must be read as a whole and as such the legislative power of the National Assembly to make laws on matters listed in the exclusive list is to the extent and limitations provided for by the Constitution itself.More importantly, that where the Constitution sets the conditions for doing a thing, no legislation of the National Assembly or State Assembly can alter same as in the instant case.That the Constitution in section 124 made clear and unambiguous provisions for the State House of Assembly to make Laws for the pension and gratuity of persons who held the office of a Governor and Deputy Governor of their respective States. That this is a clear exception to the powers of the National Assembly as contained in section 4 of the Constitution.

49. The claimants had relied on the doctrine of covering the field to state that a Federal legislation on remuneration will deprive the 37th -72nddefendants of the legislative competence to make laws relating to it. In response, the 23rd and 59th defendants submitted that the claimants misapplied the doctrine of covering the field in this case, relying on INEC v. Musa (2003) LPELR-25927(SC) where the Supreme Court expressed that where the Constitution has covered the field as to the law governing any conduct, the provision of the Constitution is the authoritative statement of law on that subject. That the Constitution would not have covered the field where it had expressly reserved to the National Assembly or any other legislative body to expand on or add its provisions in regard to a particular subject matter.In the instant case, that section 124 of the Constitution having empowered the State House of Assembly to make laws for the grant of pension and gratuity to Governors and Deputy Governors, the National Assembly cannot validly by legislation deprive the States of such powers, citingSaraki v. FRN[2016] LPELR-40013(SC). The 23rd and 59th defendants then urged the Court to resolve this issue in their favour.

50. Issue (3) is whether aside from the Revenue Mobilization, Allocation and Fiscal Commission, the 37th to 72nd defendants have the legislative competence to make Laws relating to remuneration in terms of section 32(d) of the 3rd Schedule to the 1999 Constitution.On this issue, the 23rd and 59th defendants relied on their argument on issue 2, relying also on Saraki v. FRN (supra) andAG, Abia State v. AG, Federation[2002] 6 NWLR (Pt.763) 263 at 391-392. That section 32 of the Third Schedule to the Constitution provides for the powers of the Revenue Mobilization Allocation and fiscal Commission. And where the Constitution has covered the field any other law on the same matter if not repugnant, must be supplemental or subsidiary to the constitutional provision. That in the instant case, the Revenue Mobilization Allocation and Fiscal Commission Act is at best a subsidiary legislation to the Constitution and cannot deprive the State House of Assembly of a clear and specific duty vested on it by the Constitution, urging the Court to so hold. The 23rd and 59th defendants then prayed the Court to hold that the 37th to 72nd defendants, not the Revenue Mobilization Allocation and Fiscal Commission, have the legislative competence to grant pension and gratuity to persons who held offices as Governors and Deputy Governors in the State. In conclusion, the 23rd and 59the defendants urged the Court to dismiss the claimants� suit in its entirety for being frivolous and vexatious.

COURT�S DECISION

51. I have carefully considered the processes filed and the submissions of the parties. Like I pointed out earlier, I shall first consider the issue of abuse of court process raised suo motu by the Court. The claimants in the instant suit had applied to be joined as the 3rd to 42nd defendants in Barrister Bala Ngilari v. Adamawa State Government and 2 ors Suit No. NICN/ABJ/356/2015. They were so joined; and they filed a preliminary objection canvassing issues similar to the instant suit. In a considered ruling, this Court dismissed the preliminary objection. So when the 3rd to 42nd defendants decided to as claimants file the instant suit, this Court accordingly raised the question whether the instant suit is not an abuse of court process. The argument of the claimants on the issue of abuse of court process is that the two suits in issue have different subject matters. That is, Suit No NICN/ABJ/356/2015 relates to the employment of the claimant as Deputy Governor in the service of the 1st defendant while the subject matter of this instant suit is on interpretation of the issues of law pertaining to the remuneration, including pension and out of office allowances for the 1st to 36th defendants and their deputies, as well as the ability of the 37th to 72nd defendants to enact laws with regards to such remunerations.

52. Are the claimants correct in this differentiation? I do not think so. The case of the claimant in Suit No. NICN/ABJ/356/2015 is one for his pension and out of office allowances, the very things that the claimants in the instant case said are the subject matters of the instant suit. So if an objection as to these issues failed in Suit No. NICN/ABJ/356/2015, why would the claimants file the instant suit instead of appealing against the ruling on their objection? It is for this very reason that I am of the firm opinion that what the claimants did by filing the instant suit is grossly an abuse of court process. All the requirements to make up an abuse of court process, which the claimants themselves and the defendants outlined i.e. a multiplicity of suits; between the same opponents; on the same subject matter; and on the same issues, are present in the instant case.

53. It was the claimants in the instant suit who had themselves applied to be joined as the 3rd to 42nd defendants in Barrister Bala Ngilari v. Adamawa State Government and 2 ors Suit No. NICN/ABJ/356/2015 even when they knew that the case in Suit No. NICN/ABJ/356/2015 was a personal suit of the claimant, Barrister Bala Ngilari, seeking his entitlements as to �pension and out of office allowances�, as the claimants themselves put it. By the joinder in Suit No. NICN/ABJ/356/2015, the instant claimants became contenders as to the issues of payment of pension and out of office allowances to Governors and Deputy Governors who have left office. The instant suit may have 74 defendants but it must be realized that in Suit No. NICN/ABJ/356/2015 Adamawa State Government is the main defendant, while in the instant suit Governor of Adamawa and Adamawa House of Assembly are respectively the 2nd and 38th defendants. The Governor by section 5(2) of the 1999 Constitution is the repository of executive powers of the State, while the House of Assembly is that of legislative powers. Section 318(1) of the 1999 Constitution defines government to include �Government�of any State�or any person who exercises power or authority on its behalf�. And same section defines State as follows:

�State� when used otherwise than in relation to one of the component parts of the Federation, includes government.

A global reading of these provisions yields to the conclusion that the 2nd and 38th defendants in the instant suit qualify as the Government of Adamawa State, the main defendant in Suit No. NICN/ABJ/356/2015. What this, therefore, means is that the opponents in the instant suit are also opponents in Suit No. NICN/ABJ/356/2015. And so, the requirements of multiplicity of suits; between the same opponents; on the same subject matter; and on the same issues, are present in the instant case. I so find and hold. The instant suit is accordingly an abuse of court process; and I so find and hold.

54. What then is the remedy? The claimants argue that the appropriate and proper action to be taken by the Court will be to order for the consolidation of both cases for final determination. I do not see what is there to consolidate since the issues for which the instant suit was filed are the very issues objection was raised on and dismissed in Suit No. NICN/ABJ/356/2015, which suit is still pending in terms of the private rights of the claimant. The generally acknowledged remedy is to strike out the case that is found to be an abuse of court process. Consolidation would be nothing but a pat on the back. In Alhaji Lateef Akinsola v. NURTW & ors [2013] 33 NLLR (Pt. 96) 399 NIC, this Court held as follows:

Having found that the applicant is guilty of multiplicity of suits, what then is the remedy? By Registered Trustees of Ifeloju v. Kuku [1991] 5 NWLR (Pt. 189) 65 at 79 per Tobi, JCA, as he then was, (the case had held that once a party discontinues his case, with leave of Court, that party would not be estopped from re-litigating on the same issue) �

There are certain instances when the courts of law have jurisdiction to strike out a matter with an order barring the applicant from instituting the same action at all times and for all times. Such instances occur mostly when an enabling statute or law so specifically provides or when the matter which is being struck out is an abuse of judicial process.

For all the reasons given above, it is my holding that the instant case is an abuse of court process. It is accordingly struck out. The applicant is hereby barred from instituting this same action. This order is necessary just so that the applicant will not re-litigate, for instance, Suit Nos. NICN/IB/15/2012 and NICN/IB/24/2012 if the authority of Registered Trustees of Ifeloju v. Kuku [1991] 5 NWLR (Pt. 189) 65 is anything to go by.

55. I shall accordingly, going by Registered Trustees of Ifeloju v. Kuku (supra), bar the claimants from instituting the same action at all times and for all times. I so order. This order is necessary just so that the claimants will not re-litigate similar issues again since they have evinced a penchant for re-litigation: first in applying to be joined in Suit No. NICN/ABJ/356/2015 even when that suit deals with the private rights of the claimant in that suit; and secondly by filing the instant suit even when Suit No. NICN/ABJ/356/2015 is pending and the claimants in the instant suit are still defendants in that suit and have lost an objection on the issues they presently canvass in the instant suit.

56. Ordinarily, with the holding that this suit is an abuse of court process and the order barring the claimants from institution the same action at all times and for all times, this matter ought to come to an end here. But I am enjoined to look at the merit of the claimants� case just in case they proceed to the Court of Appeal, just so that the Court of Appeal would have the benefit of a verdict from this Court on the merit of the case so as to avoid delay if the Court of Appeal comes to the conclusion that I was wrong is holding that the instant case is an abuse of court porcess. As His Lordship, Tobi, JSC (of blessed memory) said in Feed & Food Farms (Nigeria) Ltd v. NNPC [2009] LPELR-1274(SC); (2009) 12 NWLR (Pt. 1155) 387:

Let me quickly take the Issue No. 1 formulated by the cross appellant. Any court below the Supreme Court is in order to take, in the alternative, the merits of the matter after coming to the conclusion that it has no jurisdiction to hear the matter. This is to make sure that the case is not further delayed if the appellant court comes to the conclusion that the ruling on lack of jurisdiction is wrong. Accordingly, I am of the view that it is good wisdom on the part of the Court of Appeal to take the other issues in the appeal after coming to the conclusion that it had no jurisdiction to hear the matter.

57. So taking up the merit of the case, the claimants� case is that the 1999 Constitution gave the 74th defendant i.e. the Revenue Mobilization, Allocation & Fiscal Commission (RMAFC) the exclusive power to set the remuneration of Governors and Deputy Governors; andthat pension is part of the remuneration of public officials.Therefore, any law especially by the State Houses of Assembly that stipulates pension of such public officials already covered by the constitutional mandate of the RMAFC is ultra vires, null and void. The question, therefore, arises whether pension is part of remuneration as the claimants argue. We cannot answer this question unless we first understand what �remuneration� and �pension� mean.

58. The New Oxford American Dictionary defines remuneration as �money paid for work or a service�; and the Thesaurus gives the alternate words to be �PAYMENT, pay, salary, wages; earnings, fee(s), reward, compensation, recompense, reimbursement; contingency fee; formal emolument(s)�. The same Dictionary defines pension as:

a regular payment made during a person’s retirement from an investment fund to which that person or their employer has contributed during their working life.

� a regular payment made by the government to people of or above the official retirement age and to some widows and disabled people.

And the Thesaurus gives the alternate words to be �RETIREMENT (BENEFITS), superannuation; Social Security; allowance, benefit, support, welfare�. To wikipedia at https://en.wikipedia.org/wiki/Pension as accessed on 17th December 2019, �The common use of the term pension is to describe the payments a person receives upon retirement, usually under pre-determined legal or contractual terms�.

59. A global look at these definitions will show that pension and remuneration are not one and the same as to make pension part of remuneration as argued by the claimants. While remuneration relates to payments made while in employment, pension relates to payments made while in retirement. So if by the 1999 Constitution the RMAFC has power to fix remuneration (without pension being specifically mentioned), it cannot be said that that power includes that of fixing pension. Section 124(1) of the 1999 Constitution, which empowers the RMAFC to fix remuneration of constitutional office holders actually talks of �salaries and allowances�. The section provides thus:

There shall be paid to the holders of the offices mentioned in this section such salaries and allowances as may be prescribed by a House of Assembly but not exceeding the amount as shall have been determined by the Revenue Mobilisation Allocation and Fiscal Commission.

60. It must be noted that the power of the RMAFC under section 124(1) is one that relates to �salaries and allowances�. Pension is not mentioned at all; and the �salaries and allowances� talked of are those �paid to the holders of the offices mentioned in this section�. Section 124(4) then lists the offices including Governor and Deputy Governor (not former Governors and former Deputy Governors). It is paragraph 32(d) of Part I of the Third Schedule to the 1999 Constitution that mentions the word remuneration. It provides that the RMAFC shall have power to �

(d) determine the remuneration appropriate for political office holders, including the President, Vice-President, Governors, Deputy Governors, Ministers, Commissioners, Special Advisers, legislators and the holders of the offices mentioned in sections 84 and 124 of this Constitution.

61. The question that, therefore, arises is whether a Governor or Deputy Governor who left office is a holder of the office of Governor or Deputy Governor, as the case may be. The answer must be a resounding NO.

62. The claimants� argument is hinged on the point that the State Houses of Assembly cannot legislate on pensions or gratuity for former Governors and former Deputy Governors on the ground that the National Assembly and the RMAFC are the rightful bodies constitutionally charged with that responsibility. But we cannot come to this conclusion unless we holistically consider all the relevant constitutional provisions. I start off with section 124(5) of the 1999 Constitution, which provides:

Provisions may be made by a Law of a House of Assembly for the grant of a pension or gratuity to or in respect of a person who has held office as Governor or Deputy Governor and was not removed from office as a result of impeachment or breach of any provision of the Constitution; and any pension or gratuity granted by virtue of any provision made in pursuance of this sub-section shall be a charge upon the Consolidated Revenue Fund of the State.

63. Section 124(5) actually draws its strength from section 4(7)(c) of the 1999 Constitution, which provides that the House of Assembly of a State shall have the power to make Laws for the peace, order and good government of the State or any part thereof with respect to any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution. Section 124(5) is one such provision of the Constitution.

64. I must make the point that the exclusive legislative power of the National Assembly under section 4(1) and (2) is not absolute. Section 4(3) provides the limiting scope of the said exclusive legislative power. Section 4(3) of the 1999 Constitution provides as follows:

The power of the National Assembly to make laws for the peace, order and good governance of the Federation with respect to any matter included in the Exclusive Legislative List shall, save as otherwise provided in this Constitution, be to the exclusion of the Houses of Assembly of States (the emphasis is the Court�s).

65. The reference to section 4(5) by the claimants as subjecting State Laws to any made by the National Assembly is accordingly misplaced. First, section 4(5) relates to matters in the Concurrent Legislative List so that where both the State and National Assembly enact a law on the same matter, that of the State shall be null and void to the extent of inconsistency. This is otherwise termed the doctrine of covering the field. Secondly, the claimants are blind to the fact that section 124(5) of the Constitution specifically empowers the State House of Assembly to make the particular law specified therein; for which section 4(3) is accommodating. Thirdly, by the current constitutional arrangement, therefore, the National Assembly has no legislative power at all to legislate on the pension of those who held office as State Governor or Deputy Governor given the very specific power given to State Houses of Assembly to that effect. The doctrine of covering the field accordingly has no application as the claimants seem to think. Like I pointed out earlier, this doctrine applies only where both the National Assembly and State House of Assembly have power to make a law in the area in issue, and this is often in respect of matters in the Concurrent Legislative List. Unfortunately for the claimants, in the Concurrent Legislative List, pension for those who held office as Governor or Deputy Governor is not an item.

66. Item 44 of the Exclusive Legislative List, though not mentioned by any of the parties, deals with �Pensions, gratuities and other-like benefits payable out of the Consolidated Revenue Fund or any other public funds of the Federation�. The manner in which this item is couched shows that the exclusivity of legislative power of the National Assembly over �pensions, gratuities and other-like benefits� relates only to those payable out of �the Consolidated Revenue Fund or any other public funds of the Federation�. The 1999 Constitution makes a distinction between the Consolidated Revenue Fund of the Federation and the Consolidate Revenue Fund of a State. See section 80(1) of the 1999 Constitution, which established the Consolidated Revenue Fund of the Federation, and section 120(1), which established the Consolidated Revenue Fund of the State. If item 44 of the Exclusive Legislative List grants exclusive legislative power over pensions �payable out of the Consolidated Revenue Fund or any other public funds of the Federation�, then it cannot be that it confers exclusive legislative power on the National Assembly over pensions payable out of the Consolidated Revenue Fund of the State. This is aside from the fact that section 4(3) of the 1999 Constitution subjects the exclusive legislative power of the National Assembly to other provisions of the Constitution, of which section 124(5) is one such provision. And section 124(5) deals with payment of pension out of �the Consolidated Revenue Fund of the State�, not of the Federation, to a person who held the office of Governor or Deputy Governor and was not impeached.

67. The claimants made an issue of item 34 of the Exclusive Legislative List. Under this item, the National Assembly has exclusive legislative power to make laws in respect of:

Labour, including trade unions, industrial relations; conditions, safety and welfare of labour; industrial disputes; prescribing a national minimum wage for the Federation or any part thereof; and industrial arbitrations.

Now, it cannot be as the claimants seem to think in terms of their issue (2) as well as question (b) for determination that because the National Assembly have exclusive legislative power over �condition and welfare of employment� (the actual words are �conditions, safety and welfare of labour�) that automatically overrides section 124(5) of the Constitution. The point remains that since section 4(3) of the Constitution is not absolute, item 34 of the Exclusive Legislative List cannot be absolute as to override sections 4(7)(c) and 124(5) of the Constitution.

68. I am not unmindful of the admonition bythe Court of Appeal decision of 20th May 2019 in Appeal No. CA/A/810/2017, which admonition was however outside of the ratio of the case. The key reason for the decision of the Court of Appeal was that the letters of appointment of the political office holders in issue did not stipulate their entitlement to such payment; and that they did not produce any law or any document or instrument that entitles them to the payment they seek. So, when the Court of Appeal decried the situation where despite the huge monthly perquisites of office and opulence of political office holders, and the fact that in contrast civil servants who are subjected to contributory pension schemes with many others are not even paid their pensions, political office holders who did not work as long and hard as civil servants quickly get paid huge severance benefits upon leaving office, this cannot be read as the Court of Appeal overruling the payment of pension, gratuity or severance allowance to political office holders. Even branding the practice as morally wrong does not have the same effect. The point is, it is not for this Court to repeal a law validly made under the Constitution.

69. I am equally not unmindful of the recent decision of this Court i.e. Alhaji Garba Umar v. Taraba State Government unreported Suit No. NICN/JOS/26/2016, the judgment of which was delivered on 9th December 2019 by my learned brother Amadi J. Alhaji Garba Umar had occupied the office of Deputy Governor, after the erstwhile Deputy Governor, Alhaji Sani Abubakar Danladi, was impeached, and then became Acting Governor after the substantive Governor had an aircraft accident. But in a challenge by the erstwhile Deputy Governor, the Supreme Court in Alhaji Sani Abubakar Danladi v. Barr Nasiru Audu Dangiri & 6 ors unreported Appeal No: SC 416/2013, the judgment of which delivered on 21st November 2014, nullified the purported impeachment of the erstwhile Deputy Governor and ordered his re-instatement as the Deputy Governor of the State, and hence Acting Governor given the ailing Governor�s inability to resume work.Consequently, Alhaji Garba Umar vacated office following the said Supreme Court judgment on 21st November 2014. Out of office, he then claimed, by virtue of the Taraba State Governor and Deputy Governor�s Pension Law 2015, which came into effect on 27th May 2015, for gratuity and other entitlements (post tenure benefits) for being Acting Governor of Taraba State.

70. I must first make the point that nowhere in the case did Alhaji Garba Umar or Taraba State Governor (the parties in Suit No. NICN/JOS/26/2016) contest the legality of the Taraba State Governor and Deputy Governor�s Pension Law 2015. In fact, the Taraba State Government�s counterclaim did not include a challenge as to the legality of the State Governor and Deputy Governor�s Pension Law. It was the Court that raised the issue suo motu. Now, by Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47, a claim is circumscribed by the reliefs claimed. Since the reliefs of Alhaji Garba Umar and the counterclaims of the Taraba State Government did not include a challenge as to the said 2015 State�s Pension Law, but the issue was raised suo motu by the Court, the treatment of the issue was outside of the claimant�s reliefs and counterclaims of the defendant. Given then that a claim is circumscribed by the reliefs claimed, as persuasive as Alhaji Garba Umar v. Taraba State Government may be, it cannot not be of binding precedent as far as the instant case is concerned, which instant case deals specifically with the issue of the validity of the State Pension Laws for former Governors and former Deputy Governors across the country. This aside, I shall proceed to look at especially the holding as to the constitutional validity of the Taraba State 2015 Pension Law to see if the holding in Suit No. NICN/JOS/26/2016 is applicable to, or distinguishable from, the instant case before me.

71. In determining the constitutional validity of the 2015 Taraba State�s Pension Law, my learned brother, Amadi J, delimited his enquiry thus: ��the various provisions of the 1999 Constitution of Nigeria as variously amended that are directly or remotely in issue here are Sections 124(1), 124(5) and No.44 of the Items in the Exclusive Legislative List, under Part 1, of the Second Schedule to the Constitution and section 32 (d) of the 3rd Schedule to the Constitution�. As can be seen, not a word was said of section 4(3) of the 1999 Constitution, a key section when determining the constitutional validity of State Pension Laws applicable to former Governors and former Deputy Governors.

72. His Lordship made a distinction between the use of the word �shall� in section 124(1) and the word �may� in section 124(5) of the Constitution and then came to the conclusion that thereby section 124(1) supersedes section 124(5). With due respect, all of this, I think, is on the assumption that the power of the National Assembly to make laws in this area of the law is exclusive and absolute. I have already pointed out that by section 4(3) of the Constitution, this is not true. The said power of the National Assembly is not absolute. It is delimited by the phrase �save as otherwise provided in this Constitution� as used in section 4(3).

73. Secondly, His Lordship held that the word �may� in section 124(5) �is a mere directory or permissive power which is not mandatory�. With utmost respect, I think that His Lordship confuses the choice to pass a Law and the validity of the Law passed when that choice has been made.States have the choiceto pass or not to pass the Pension Law. That is the function of the word �may� in section 124(5). Once the Pension Law is passed, there is nothing directory or permissive about it in terms of its status as a validly passed Law. In other words, the word �may� being directory or permissive (as to the choice to pass the Pension Law or not) cannot go to the constitutional validity of the Pension Law once passed, as His Lordship seems to suggest. The �may� in section 124(5) cannot be used as the determinant of the validity of the Pension Law passed by a State. State �A� may choose to pass the Pension Law, while State �B� may choose not to. The choice is the State�s to make. I judicially note that Zamfara State is reported to have chosen to repeal theirs. That is their right and that is the role the �may� in section 124(5) plays. Its role or place in the constitutional scheme of things is not to act as a determinant of the validity of the Laws passed pursuant to it. It simply gives the States the option (choice) of passing the Pension Law or not passing it at all.

74. His Lordship equated the word �remunerate� and hence �remuneration� with �pension� holding that remuneration includes pension; and then concluded that given item 44 in the Exclusive Legislative List, �ordinarily the implication of that is that only the National Assembly has the legislative powers to make laws on matters associated with Pensions and other rewards to Public Officers�. That His Lordship would use the word �ordinarily� means that His Lordship acknowledges that the National Assembly is not the only body with legislative powers to make laws on matters associated with pensions and other rewards to public officers. I indicated earlier that item 44 of the Exclusive Legislative List relates to �the Consolidated Revenue Fund or any other public funds of the Federation�, not of the State; since the Constitution itself makes different provisions for the Consolidated Revenue Fund of the Federation and of the States.

75. His Lordship placed great reliance on the Black�s Law Dictionary (Tenth Edition) by Bryan A. Garner (1995) Thomson Reuters at page 1487, which defined �remuneration� as: payment; compensation especially for a service that someone has performed. Also, that the Chambers 21st Century Dictionary; Mairi Robinson et (2002) Chambers Harrap Publishers Limited page1181, which defined the verb �remunerate� as follows:1 to recompense. 2 to pay for services rendered. On the other hand, that the same Black�s Law Dictionary at page 1537 defined salary as; An agreed compensation for services especially professional or semiprofessional services. While the Oxford Advanced Learner�s Dictionary, by A.S. Hornby 7th Edition (2005) Oxford Press page 1291 defined salary as money that employees receive for doing their job especially professional employees or people working in an office, usually paid every month. His Lordship then concluded that from these definitions, it is very clear that remuneration and salaries as used in section 124(1) deal with two separate and distinct issues; while remuneration refers to payment to be made for services completed or rendered, which to give effect to the provision of this section relates to the period during which those offices referred to were held,salaries on the other hand, refer to the earnings of the holders of those offices during the current tenure of their so holding such offices.In other words, during the period when they are working in those offices. With due respect to His Lordship, as can be seen, the definitions in the New Oxford American Dictionary are more expansive than those used in the Black�s Law Dictionary.

76. This aside, in the world of work, remuneration certainly includes salaries and so is more expansive as to include emoluments, allowances and other perquisites of office. When the Black�s Law Dictionary defined �remuneration� as payment i.e. �compensation especially for a service that someone has performed�, it must be understood in context. After all, in law context is everything. See R v. Secretary of State For The Home Department, Ex Parte Daly [2001] 3 All ER 433; [2001] 1 AC 532; [2001] 2 WLR 1622; [2001] UKHL 26. Payment of remuneration during the pendency of an employment is usually in arrears i.e. at the end of the month when the employment service for the month has been already been rendered. This is the sense in which the Black�s Law Dictionary defined the termed and so must be understood. Pension too is payment for services rendered; only here, the �services� rendered is the cumulative employment service spanning the service years. That is why remuneration is payment during the pendency of employment, while pension is payment during retirement i.e. after active service. It is thus not the case that remuneration and pension are one and the same or as His Lordship puts it, ��pension is part and parcel of the word remuneration as used in section 124(1)�.

77. There is another point that I must stress here. His Lordship assumed that section 124(1) is superior and so overrides section 124(5) of the Constitution. Now, there is this rule in drafting as to priority of provisions, which rule assumes the superiority of a later provision over an earlier one. Since section 124(5) is later in time, it is assumed that the draftsman knew of section 124(1) before making section 124(5). So it cannot be that the intention is that section 124(1) should override section 124(5).

78. So when His Lordship concluded that ��it appears that there is a contradiction by the provision of section 124(5) which enabled the House of Assembly of a State to provide for pension or gratuity to Governors and Deputy Governors which items are also placed under the Exclusive legislative list under Part 1, of the Second Schedule to the 1999 Constitution�, I must state with due respect that that conclusion was arrived at without a consideration of section 4(3) of the Constitution itself. The effect of section 4(3) of the Constitution is to validate section 124(5) since the Exclusive Legislative List, not being absolute, must give way to section 124(5). This remains so irrespective of the distinction between �shall� and �may� made by His Lordship. The purposeful approach at constitutional interpretation suggested by His Lordship ought to include the interpretation of section 4(3) of the Constitution in the fray. Courts are enjoined to interpret documents and statutes including the Constitution holistically. As His Lordship Nweze, JSC puts it in Dr Olubukola Abubakar Saraki v. FRN [2016] LPELR-40013(SC), ��the construction of any document (and this includes the construction of the precious and organic document known as the 1999 Constitution) is a holistic endeavour�.

79. In any event, a general look at the 1999 Constitution will show that the framers of the Constitution knew of the word �pension�; for there are specific provisions dealing with it as a subject matter. For instance, sections 84(5) and (6), 124(5), 173, and item 44 of the Exclusive Legislative List all mention the word �pension�. The framers of the Constitution thus must be read to know of the word �pension� as distinct from �remuneration and salaries�. To have used the word �pension� different from �remuneration and salaries� means only one thing: that it is not of the same meaning as the other words used. In fact section 173 of the Constitution talks of protection of pension rights. There is no provision in the Constitution, which talks of �protection of remuneration and salaries�. The point is that the framers of the Constitution know of the word �pension� and yet chose to talk of the powers of the RMAFC in terms of remuneration and salaries, not pension.

80. In summary, and given a global reading of the constitutional provisions, the conclusions I reach (and so hold) are:

Item 44 of the Exclusive Legislative List does not relate to payment of pensions out of the Consolidated Revenue Fund of a State; only of the Federation.
Item 34 of the Exclusive Legislative List cannot override sections 4(7)(c) and 124(5) of the Constitution given section 4(3) of the Constitution.
By section 4(3) of the Constitution, the exclusive legislative power of the National Assembly is not absolute. Alternatively put, section 4(3) of the 1999 Constitution is not absolute. It subjects the exclusive legislative power of the National Assembly to other provisions of the Constitution; and section 124(5) is one such provision. This means that section 124(5) overrides the exclusivity of legislative power of the National Assembly.
The power of the RMAFC under section 124(1) relates to �salaries and allowances�, not pensions. The word �remuneration� used in paragraph 32(d) of Part I of the Third Schedule to the 1999 Constitution does not include pensions.
While section 124(l) donates the power to prescribe remuneration and salaries of Governor and other public office holders subject to the amount as shall have been determined by the RMAFC, section 124(5) did not subject the power of the House of Assembly to that of the RMAFC in granting pension or gratuity for former Governors and their Deputies.
By section 124(5) of the 1999 Constitution, the pension or gratuity of former Governors and Deputy Governors does not need to be the same with the remuneration of a serving Governor or Deputy Governor as determined by the RMAFC.
The power of the RMAFC to determine remuneration under paragraph 32(d) of Part I of the Third Schedule to the 1999 Constitution relates to �political offices holders� i.e. those still in office, not those who have left office.
The exclusive legislative power of the National Assembly in terms of item 34 of the Exclusive Legislative List cannot override section 124(5) of the Constitution for the very reason that under section 4(3) of the Constitution the exclusive legislative power of the National Assembly is not absolute; and the additional reason that item 34 of the Exclusive Legislative List (as is paragraph 32 of Part I of the Third Schedule to the Constitution) coming from a Schedule cannot override a substantive provision of the Constitution. The rules of drafting teach and place greater premium on substantive sections of an Act over and above those in the Schedule. His Lordship Amadi J acknowledged this.
Alhaji Garba Umar v. Taraba State Government unreported Suit No. NICN/JOS/26/2016, the judgment of which was delivered on 9th December 2019 by my learned brother Amadi J, persuasive as it may be, is distinguishable and so cannot be followed in the instant case before me. Accordingly, though it is a decision by my learned brother of coordinate jurisdiction, I do not find it persuasive for all the reasons I already gave.
Accordingly, all State pension laws made pursuant to section 124(5) of the 1999 Constitution are valid and constitutional. They cannot be read to be contrary to or in contravention of any subsisting legislation or the Constitution. If the draftsman of the 1999 Constitution intended to give the RMAFC powers to stipulate pension or gratuity of former Governors and former Deputy Governors, he would have clearly stated so.

81. On the whole, I do not see any merit whatsoever with the case of the claimants; and I so find and hold. I cannot end this judgment without remarking generally on the case. The claimants are all civil society organizations otherwise called Non-Governmental Organizations (NGOs). They filed this action under what they termed public interest litigation wherein they seek to stop the waste of public funds in the nature of the sums paid as pension or gratuity to former Governors and former Deputy Governors. They have the locus to do this especially under section 51 of the Fiscal Responsibility Act 2007, which provides that a person shall have legal capacity to enforce the provisions of the Fiscal Responsibility Act by obtaining prerogative orders or other remedies at the Federal High Court, without having to show any special or particular interest. This provision allows public interest litigation especially when expenditure as to public funds is in issue. But public interest litigation has no place whatsoever where no law, talk more a constitutional provision, has been breached. Was recourse to the courts the best route for the claimants to have taken? I think not. As NGOs, the claimants should have approached the National Assembly to repeal or amend section 124(5) of the Constitution. Or they should have approached the State Houses of Assembly and urge then to repeal the respective laws that grant pensions or gratuities to former Governors and former Deputy Governors. Here, I judicially note the case of Zamfara State which made media rounds. Baffled with their own pension law, they took the best route i.e. by repealing the law that granted their former Governors and former Deputy Governors pension/gratuity.

82. On the whole, I reiterate that the claimants� case has no merit. It fails and is hereby dismissed. Cost is put at Four Hundred Thousand Naira (N400,000.00) only payable by the claimants to the 2nd, 6th,23rd, 42nd and 59th defendants within 30 days of this judgment.

Judgment is entered accordingly.

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Hon. Justice B. B. Kanyip, PhD