IN THE NATIONAL INDUSTRAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP HONOURABLE JUSTICE E. N. AGBAKOBA

 

DATED: 23RD MARCH 2023                                            SUIT NO: NICN/ABJ/15/2020

 

BETWEEN:

1. HONOURABLE KIRIAN NWOSU

2. HONOURABLE LIVINUS UKAEGBU                                           CLAIMANTS      

3. HONOURABLE OKWUDIRI GODPOWER AKANWA

4. HONOURABLE UCHE PRINCE NWAUGHA

 

AND

ETCHE LOCAL GOVERNMENT COUNCIL                    ..........              DEFENDANT

 

REPRESENTATION

I. A. NWALA ESQ for the Claimants

U. I. ELENWOKE ESQ for the Defendant

 

JUDGEMENT

1.      The claimant filed this Amended Complaint on 21st March, 2022 with the accompanying frontloaded documents, claiming against the defendants as follows:

a.      The sum of N9, 068, 378.39 (Nine Million, Sixty Eight Thousand, Three Hundred and Seventy Eight Naira, Thirty Nine Kobo) only to the Claimants each, being the outstanding statutory entitlements owed the Claimants each as Councilors under the Remuneration Package for Legislature at the Local Government Level with the Circular of 7th November, 2001/the Reviewed Version of it, Volume 11 of 7th February, 2007 and the Rivers State Public and Political Office Holders’ Salaries, Allowances and Fringe Benefits Law, No.4 of 2002/the (Amendment) Law, No.2 of 2007, from April, 2004 when they

b.      Post-judgment interest of 2l% per month on the judgment sum until judgment is liquidated by the Defendant.

c.       The sum of N1, 500, 000.00 (One Million Five Hundred Thousand Naira) only to the Claimants each, being the legal fee the Claimants paid each to their Counsel to institute and prosecute this matter for recovery of the debt from the Defendant herein were sworn in as Councilors till May, 2007 when their tenures ended.

d.      Interest on the above debt at 21% from 30th May, 2007 when the Claimants’ tenure ended and the debt was due and payable till the date of judgment.

 

2.      The Claimants were all elected as Councilors in the election held on 27th March, 2004 and were accordingly sworn in to represent their respective Wards in the Defendant  pleading and relying on  their Certificates of Return of the Election and or their Affidavits of Loss of Certificates of Return of the Election as is applicable .

 

3.      The Defendant is a third tier of Government created by the Constitution of the Federal Republic of Nigeria 1999 as amended, with its Headquarters at Etche Local Government Area, Okehi, Rivers State, and has presence and carries on activities from time to time within the FCT, Abuja as a third tier of Government of the Federal Republic of Nigeria.

 

4.      The Claimants were each entitled to salaries, allowances and benefits during their tenure in office as Councilors from April, 2004 to May, 2007, as prescribed by the Revenue Mobilization Allocation and Fiscal Commission ( called RMAFC) in the Remuneration Package for Legislature at the Local Government Level with the Circular of 7th November, 2001 (called the Remuneration Instrument of 7th November, 2001) and the Reviewed Version of it, Volume 11 of 7th February, 2007 (called the Reviewed Remuneration Instrument, Volume 11 of 7th February, 2007), and as was further passed into Law by the Rivers State House of Assembly as the Rivers State Public and Political Office Holders’ Salaries, Allowances and Fringe Benefits Law, No. 4 of 2002 (called the “Rivers State Law No.4 of 2002”) and the Rivers State Public and Political Office Holders’ Salaries, Allowances and Fringe Benefits (Amended) Law No.2 of 2007 (called “the Rivers State Amended Law No.2 of 2007”).

 

5.      The exact total amount of the monthly emoluments of the Claimants as Councilors each as prescribed in both Remuneration Instrument of 7th November, 2001 and River State Law No.4 of 2002, which were the extant Instrument and Law applicable from April, 2004 to January, 2007, was the sum of N232, 773.21 (Two Hundred and Thirty Two Thousand Seven Hundred and Seventy Three Naira Twenty One Kobo) only. The Claimants hereby plead the Remuneration Instrument of 7th November, 2001 with the attached Tables A, B and C thereto and the Rivers State Law No.4 of 2002 with the Third Schedule Part “C” thereto and shall all rely on them during trial in further prove of their cases herein.

 

6.      The Remuneration Instrument of 7th November, 2001 and the River State Law No.4 of 2002 were later reviewed and amended as the Reviewed Remuneration Instrument, Volume 11 of 7th February, 2007 and Rivers State Amended Law No.2 of 2007 from February to May 2007, in which the exact total monthly emoluments of the Claimants each were increased to the total sum of N316,698.30 (Three Hundred and Sixteen Thousand, Six Hundred and Ninety Eight Naira, Thirty Kobo) only, from February, 2007 to May, 2007. The Claimants hereby plead the Reviewed Remuneration Instrument, Volume 11 of 7th February, 2007 and Rivers State Amended Law No.2 of 2007 and shall rely on them during trial in further prove of their cases herein.

 

7.      The Claimants’ tenure as Councilors ended on May, 2007, they were however not adequately and fully paid their said statutory monthly emoluments as prescribed under the aforesaid applicable Instruments and Laws from April, 2004 to May, 2007. The Claimants hereby plead their respective United Bank for Africa PLC (UBA) Statements of Accounts into which each of them received their entitlement ever paid so far by Defendant and shall all rely on same during trial in further prove of their cases herein.

 

8.      The highest amount paid to the Claimants each as their monthly salaries, allowances and benefits in each of the months the Defendant was indeed able to pay the Claimants was the sum of N126, 362.97(One Hundred and Twenty Six Thousand, Three Hundred and Sixty Two Naira, Ninety Seven Kobo) only, as evident in the Claimants’ said statements of accounts, instead of N232, 773.21 (Two Hundred and Thirty Two Thousand Seven Hundred and Seventy Three Naira Twenty One Kobo) only from April, 2004 to January, 2007 and N316, 698.30 (Three Hundred and Sixteen Thousand, Six Hundred and Ninety Eight Naira, Thirty Kobo) only, from February, 2007 to May, 2007. The Claimants were never paid a dime of their monthly salaries, allowances and benefits for the month of December, 2006, as stipulated under the then applicable Remuneration Instrument of 7th November, 2001 and Rivers State Law No.4 of 2002, and for the months of March and May, 2007, as stipulated under the then applicable Reviewed Instrument, Volume 11 of 7th February, 2007 and Rivers State Amended Law No.2 of 2007. The Claimants were never also paid a dime of both their Furniture Allowance and Severance Gratuity which were part of their entitlements as Councilors and which were both meant to be paid at once under the aforesaid extant Instruments and Laws.

 

9.      The balance of the adequate and full salaries, allowances and benefits which the Claimants were each entitled to during their tenure in office as Councilors under the aforesaid extant Instruments and Laws from April, 2004 to May, 2007 which has not been paid up till date by the Defendant are summarily highlighted below as follows:

 

(A) THE ADEQUATE AND FULL ENTITLEMENTS OWED FROM APRIL, 2004 TO JANUARY, 2007 (34MONTHS) UNDER THE REMUNERATION PACKAGE FOR LEGISLATURE AT THE LOCAL GOVERNMENT LEVEL WITH THE CIRCULAR OF 7TH NOVEMBER, 2001 AND THE LAW NO.4 OF 2002:

 

                                I.            The balance of the underpaid monthly salary, allowances and benefits is N106, 410.24per month; multiply by the 33 months the underpayment was made which is N3, 511, 537, .92

                             II.            The monthly salary, allowances and benefits for the month of December, 2006 which was not paid is N232, 773. 21.

The sum total is N3, 744, 311.13.

 

(B) THE ADEQUATE AND FULL ENTITLEMENTS OWED FROM FEBRUARY, 2007 TO MAY, 2007 (4MONTHS) UNDER THE REVIEWED REMUNERATION PACKAGE FOR LEGISLATURE AT THE LOCAL GOVERNMENT LEVEL, VOLUME 11 OF 7TH FEBRUARY, 2007 AND THE AMENDED LAW NO.2 OF 2007:

                                i.            The balance of the underpaid monthly salary, allowances and benefits is N190, 335.33 per month, multiply by the said 2 months of February and April, 2007 which were underpaid =N380, 670.66.

                              ii.            The total monthly salary, allowances and other benefits of the said 2 months of March and May, 2007 which were not paid at all is N633, 396.6.

                           iii.            The Furniture Allowance which was not paid is N2, 280,000.00.

                            iv.            The Severance Gratuity which was not paid is N2, 280,928.00

The sum total = N5, 574, 067.26.

 

10. The above total figures of N3, 744, 311.13 and N5, 574, 067.26 when added together, comes to a grand total of N9, 318, 378.39 (Nine Million, Three Hundred and Eighteen Thousand, Three Hundred and Seventy Eight Naira, Thirty Nine Kobo) only.

 

11. The Claimants have, since the end of their tenure as Councilors on May, 2007, made several demands, requests, entreaties and appeals to the Defendant for adequate and full payment of the balance of all their entitled emoluments and benefits as Councilor from ``April, 2004 to May, 2007, and the Defendant acknowledged and made promises to pay up same but never did so. The then Executive Chairman of the Defendant, Hon. Ephraim Nwuzi in his valedictory address during his handover to Lady Hon. Ngozi Okey Amadi as Caretaker Chairman of the Defendant on 10th May, 2011, rightly acknowledged the above statutory emoluments and benefits which accrued to the Claimants as Councilors and other past political office holders, as captured in a Video coverage of the handover event. The Claimants plead Video CD/Tape record shall at the hearing of this suit rely on same in further prove of their cases. The Rivers State House of Assembly acknowledged the same debts owed the Claimants and other past political office holders by all the Councils in the State and directed the Councils, including the Defendant to pay up the debts to the respective beneficiaries, but the Defendant still refused, failed or neglected to comply with the simple directive of the Rivers State House of Assembly till date. The Claimants hereby plead the front page to 2 of the Today’s Top newspapers of Wednesday March 10-Tuesday March 16, 2010, Vol. 9, No.10; page 10 of the Today’s Top newspapers of Monday May 28-Thursday June 5, 2012 and front page to 6 of the Independent Monitor Newspaper of Thursday May 17-Sunday May 20, 2012, Vol. 18, No.39 and shall rely on same at the trial of this suit in further prove of their cases.

 

12. The Claimants and other past political office holders owed by the Defendant continued to make repeated demands to the Defendant for payment of the debts and decried the delay by the Defendant to comply with its own firm promise through their successive Chairmen to pay up same and as directed by the Rivers State House of Assembly, but the Defendant continued with its promises which it refused, failed or neglected to honour. The Claimants hereby plead page 12 of the Today’s Top newspapers of Thursday 25- Tuesday 30 October, 2012 and shall rely on same at the trial of this suit in further prove of their cases.

 

13. The subsequent elected Successor-Executive Chairman of the Defendant, Barrister Reginald Ukwuoma also rightly acknowledged the aforesaid debts when he took over office and promised on several occasions to pay up same owed the Claimants and their colleagues as Councilors and Council Supervisors/Advisers before the expiration of his own tenure as the Executive Chairman of the Defendant. The said Successor-Executive Chairman of the Defendant, Barrister Reginald Ukwuoma later called the Claimants and their colleagues for a meeting on payment of the debts in March, 2013, wherein he reaffirmed his commitment to pay up the debts and finally paid a paltry sum of N250, 000.00 (Two Hundred and Fifty Thousand Naira) only, to the Claimants and some other of their colleagues each. The said paltry part payment of N250, 000.00 (Two Hundred and Fifty Thousand Naira) only made by the Defendant when deducted from the aforesaid N9, 318, 378.39 (Nine Million, Three Hundred and Eighteen Thousand, Three Hundred and Seventy Eight Naira, Thirty Nine Kobo) only, the debt comes to the total sum of N9, 068, 378.39 (Nine Million, Sixty Eight Thousand, Three Hundred and Seventy Eight Naira, Thirty Nine Kobo) only still owed the Claimants each till date by the Defendant as their outstanding statutory emoluments and benefit under the aforesaid extant Instruments and Laws as Councilors from April, 2004 to May, 2007.

 

14. The Successor-Executive Chairman of the Defendant, Barrister Reginald Ukwuoma firmly promised and categorically stated that the payment of the debt shall be on-going until the end of his tenure by which time he would have paid up all the debts, as evidently published in page 22 of the Tide Newspaper of March, 11, 2013, Vol. 13, No. 191. The Claimants hereby plead the said newspapers and shall rely on same at the trial of this suit in further prove of their cases. The Successor-Executive Chairman of the Defendant, Barrister Reginald Ukwuoma even later pointed out in page 2 of the National Network Newspaper of April, 3-9, 2013 Vol. 10, No. 13 that “it was wrong for one after rendering service was left out without payments even when the fund was available”; but instead of paying up the debt as promised, he surprisingly claimed falsely to have paid up the said debt owed the Claimants and their colleagues which he never paid up until his tenure elapsed. The Claimants hereby plead the said newspapers and shall rely on same at the trial of this suit in further prove of their cases. The Claimants and their colleagues quickly refuted the said false claim of Barrister Reginald Ukwuoma, through their spokesman, as published in page 5 of the Independent Monitor of 24-36 June, 2013, Vol. 19, No. 47. The Claimants hereby plead the said newspapers and shall rely on same at the trial of this suit in further prove of their cases.

 

15. The Claimants continued to make repeated calls, demands, requests, entreaties and appeals to the Defendant for payment of the remaining unpaid debt owed them by the Defendant, but the Defendant still refused, failed and neglected to pay up same and instead continued its usual promises to pay up same which it never did till date.

 

16. The Defendant’s refusal, failure or negligence to pay the Claimants their accrued entitlements and benefits under the aforesaid extant Instruments and Laws as Councilors from April, 2004 to May, 2007 and even till date continues to subject the Claimants to more untold and un-bargained hardships and inconveniences which further continues to lead the Claimants to borrow money with high interest rate all to pay their bills and that of their dependent families. The Defendant has no justification whatsoever to continue to owe the Claimants their accrued salaries, allowances, wages, gratuities and benefits under the aforesaid extant Instruments and Laws as Councilors from April, 2004 to May, 2007, as was even rightly pointed out and stated by the Defendant’s then Executive Chairman, Barrister Reginald Ukwuoma in page 2 of the National Network Newspaper of April, 3-9, 2013 Vol. 10, No. 13. The Claimants hereby plead the said newspapers and shall rely on same at the trial of this suit in further prove of their cases. The Claimants have exhausted all efforts to make the Defendants to simply pay up their unpaid accrued salaries, allowances, wages, gratuities and benefits under the aforesaid extant Instruments and Laws as Councilors from April, 2004 to May, 2007, but the Defendant refused, failed and or neglected to heed to same till date. The Claimants consequently consulted and instructed their Counsel, I. A. Nwala Esq., of I. A. Nwala & Co to give the Defendant the necessary statutory Pre-action Notice for payment of the debt owed them; and their Counsel wrote the first pre-action notice dated 21 August, 2019 and gave same to the DHL Express on the 30th August, 2019 for on-ward delivery or service of same to the Defendant which the DHL Express did, but the Defendant refused to accept service of same. The Claimants hereby plead their Counsel’s said Pre-Action Notice and the DHL Express’ receipt for delivery and delivery report and shall rely on same at the trial of this suit in further prove of their cases.

 

17. The Claimants’ Counsel later sent another Pre-Action Notice dated 21 August, 2019 through the Claimants to deliver to the Defendant which the Claimants sent and the Defendant eventually received and acknowledged receipt of same on the 8th October, 2019. The Claimants hereby plead the acknowledged copy of the Pre-Action Notice and shall rely on same at the trial of this suit in further prove of their cases.

 

18. The Defendant still refused, failed and or neglected to comply with the Pre-Action Notice and continues to owe the Claimants and will continue to owe them their unpaid accrued salaries, allowances, wages, gratuities and benefits as Councilors from April, 2004 to May, 2007 under the aforesaid extant Instruments and Laws, unless compelled by this Honourable Court to pay up same.

 

19. The Claimants having exhausted all avenues to get paid the balance of their entitlements owed by the Defendant need this Honourable Court to make the Defendant pay the Claimants the balance their accrued entitlements owed them as Councilors from April, 2004 to May, 2007 under the extant Instruments and Laws, hence this suit for recovery of the debt as per their claims herein. The Claimants therefore finally engaged and instructed their Counsel each to institute this action against the Defendant and agreed with their Counsel each on his legal fees and deposited each the sum of Ni, 500. 00 (One Million Five Hundred Thousand Naira) only towards prosecution of this action. The Claimants hereby plead their Counsel’s receipts issued to them each evidencing the deposit and shall rely on same at the trial of this suit in further prove of their cases.

 

20. 31. Whereof the Claimant claims against the Defendant as follows:

The sum of N9, 068, 378.39 (Nine Million, Sixty Eight Thousand, Three Hundred and Seventy Eight Naira, Thirty Nine Kobo) only to the Claimants each, being the outstanding statutory entitlements owed the Claimants each as Councilors under the Remuneration Package for Legislature at the Local Government Level with the Circular of 7th November, 2001/the Reviewed Version of it, Volume 11 of 7th February, 2007 and the Rivers State Public and Political Office Holders’ Salaries, Allowances and Fringe Benefits Law, No.4 of 2002/the (Amendment) Law, No.2 of 2007, from April, 2004 when they were sworn in as Councilors till May, 2007 when their tenures ended. According to the Claimants they were each entitled to salaries, allowances and benefits during their tenure in office as Councilors from April, 2004 to May, 2007, as prescribed by the Revenue Mobilization Allocation and Fiscal Commission ( called RMAFC) in the Remuneration Package for Legislature at the Local Government Level with the Circular of 7th November, 2001 (called the Remuneration Instrument of 7th November, 2001) and the Reviewed Version of it, Volume 11 of 7th February, 2007 (called the Reviewed Remuneration Instrument, Volume 11 of 7th February, 2007), and as was further passed into Law by the Rivers State House of Assembly as the Rivers State Public and Political Office Holders’ Salaries, Allowances and Fringe Benefits Law, No. 4 of 2002 (called the “Rivers State Law No.4 of 2002”) and the Rivers State Public and Political Office Holders’ Salaries, Allowances and Fringe Benefits (Amended) Law No.2 of 2007 (called “the Rivers State Amended Law No.2 of 2007”). The exact total amount of the monthly emoluments of the Claimants as Councilors each as prescribed in both Remuneration Instrument of 7th November, 2001 and River State Law No.4 of 2002, which were the extant Instrument and Law applicable from April, 2004 to January, 2007, was the sum of N232, 773.21 (Two Hundred and Thirty Two Thousand Seven Hundred and Seventy Three Naira Twenty One Kobo) only. The Claimants hereby plead the Remuneration Instrument of 7th November, 2001 with the attached Tables A, B and C thereto and the Rivers State Law No.4 of 2002 with the Third Schedule Part “C” thereto and shall all rely on them during trial in further prove of their cases herein.

 

21. The Remuneration Instrument of 7th November, 2001 and the River State Law No.4 of 2002 were later reviewed and amended as the Reviewed Remuneration Instrument, Volume 11 of 7th February, 2007 and Rivers State Amended Law No.2 of 2007 from February to May 2007, in which the exact total monthly emoluments of the Claimants each were increased to the total sum of N316,698.30 (Three Hundred and Sixteen Thousand, Six Hundred and Ninety Eight Naira, Thirty Kobo) only, from February, 2007 to May, 2007. The Claimants hereby plead the Reviewed Remuneration Instrument, Volume 11 of 7th February, 2007 and Rivers State Amended Law No.2 of 2007 and shall rely on them during trial in further prove of their cases herein

a.      Interest on the above debt at 21% from 30th May, 2007 when the Claimants’ tenure ended and the debt was due and payable till the date of judgment.

b.      Post-judgment interest of 2l% per month on the judgment sum until judgment is liquidated by the Defendant.

c.       The sum of N1, 500, 000.00 (One Million Five Hundred Thousand Naira) only to the Claimants each, being the legal fee the Claimants paid each to their Counsel to institute and prosecute this matter for recovery of the debt from the Defendant herein.

 

FURTHER AMENDED STATEMENT OF DEFENCE filed on May 6th, 2022.

 

22. In reaction to paragraph 5 of the Claimants’ Amended Statement of Facts, the Defendant averred that the Rivers State Public and Political Office Holders’ Allowances and Fringe Benefits Law, No 4 of 2002 (as amended in 2007) remains the only extant law applicable to remuneration of political office holders in Rivers State from 2002 when it was passed into law by the Rivers State House of Assembly up until date. And that the purported Remuneration Package for Legislature at the Local Government Level with Circular of 7th November 2001 and Reviewed Circular of 7th February 2007 being mere statutory instruments issued by the Revenue Mobilization Allocation and Fiscal Commission (hereinafter called RMAFC) have no applicability in Rivers State of Nigeria or the cause of action in this suit. Responding to paragraphs 7 to 12 of the Claimants’ statement Defendant stated that the monthly basic salaries of the Claimants in the sum of N31, 669. 83 (Thirty One Thousand, Six Hundred and Sixty Nine Naira, Eighty Three Kobo) were duly paid to all the Claimants individually throughout their respective tenures as councilors. Replying paragraphs 13 and 16 of the Claimants’ Statement of Fact, Defendant stated that it never acknowledged or admitted any debt to the Claimants at any time whatsoever either through its past executives led by Hon. Ephraim Nwuzi and Hon. Ngozi Okey Amadi or as a Council. Defendant denying paragraphs 23 — 26 of the Claimants’ Amended Statement of Facts, stated that it shall contend at the trial of this suit that it is not its statutory responsibility to pay any accrued benefits or entitlements to the Claimants under the Rivers State Public and Political Office Holders’ Allowances and Fringe Benefits Law, No 4 of 2002 and/or its amendment; and shall further contend that it bears no liability whatsoever under the provisions of the said law to the Claimants and in the circumstance, this suit by the Claimants disclose no reasonable cause of action against it. Denying paragraphs 28 — 31 of the Claimants’ Statement of Facts, defendant averred that it does not owe any entitlements to the Claimants as it bears no obligation to the Claimants for any monies accruing to them under the Rivers State Public and Political Office Holders’ Allowances and Fringe Benefits Law, No 4 of 2002 and Amendment Law No. 2 of 2007 same being a statutory obligation of the Rivers State Government under the said law. Defendant averred that it is not liable to the Claimants in any manner whatsoever and that the Claimants are not entitled to any of the claims set out in paragraph 32 of their Statement of Facts and will urge this court at trial to dismiss the suit against the Defendant with substantial costs for lacking in bona fide, being frivolous, speculative and an exercise in gold digging.

 

THE CLAIMANTS’ JOINT REPLY TO THE DEFENDANT’S FURTHER AMENDED STATEMENT OF DEFENCE OF 6TH MAY, 2022 filed on 26th May, 2022.

 

23. The Claimants stated in response to paragraphs 6, 7, 8 and 9 of the Defendant’s further Amended Statement of Defence that the Revenue Mobilization Allocation and Fiscal Commission (RMAFC) has the Constitutional powers to among other functions determine the remunerations and allowances appropriate for the Executive, Legislative and Judiciary at all levels of Government in Nigeria, as it (RMAFC) did in the Remuneration Instrument of 7th November,2001 and the Reviewed Remuneration Instrument, Volume 11 of 7th February, 2007. Responding to paragraphs 6, 7, 8 and 9 of the Defendant’s further Amended Statement of Defence, Claimants averred that the Revenue Mobilization Allocation and Fiscal Commission (RMAFC) has the Constitutional powers to among other functions determine the remunerations and allowances appropriate for the Executive, Legislative and Judiciary at all levels of Government in Nigeria, as it (RMAFC) did in the Remuneration Instrument of 7th November,2001 and the Reviewed Remuneration Instrument, Volume 11 of 7th February, 2007.

 

24. The Claimants further stated that they were never paid a dime of their correct/accurate and complete and full monthly emoluments each for the months of December, 2006, March and May, 2007, as evident in their respective UBA Bank Statements of Account into which the Defendant paid them in each of the months the Defendant was able to pay them from April, 2004 to May, 2007.

 

25. In response to paragraphs 14 to 17 of the Defendant’s further Amended Statement of Defence, Claimants state that the directive of the Rivers State House of Assembly, the acknowledgment of the debts and the part- payment made by the Defendant’s own Chairman, Barrister Reginald Ukwuoma to the Claimants were all of public notice, as they were published in the newspapers, and Barrister Reginald Ukwuoma rightly acknowledged in one of the Newspapers that the debt owed the Claimants were owed in bad faith and total abuse of office and breach of the law.

 

26. The Claimants in response to paragraphs 21 and 22 of the Defendant’s further Amended Statement of Defence averred that it is and has always been the responsibility of the Defendant to pay the Claimants their entitlements as Councilors under the extant Rivers State Public and Political Office Holders’ Salaries, Allowances and Fringe Benefits Law, No. 4 of 2002 and (Amended) Law No. 2 of 2007.

27. At the trial, which commenced on the 9th June 2022, the 1st Claimant Kirian Nwosu the testified as CW1, the 2nd Claimant Livinus Ukaegbu testified as CW2, and the 3rd Claimant testified as CW3, the witnesses adopted their witness statements on oath dated and 21st of March 2022, which was admitted as Exhibits C1, C10 and C13 respectively.  The Claimants Witnesses together then tendered Exhibits C2 – C22. The Claimants Witnesses were cross-examined by the Defendant and there was no re-examination. The Defendant on the 19th July 2022, entered its defence. The Defendant called one Ubadinma Nwodim who testified as DW1, the witness adopted his amended witness statement on oath dated and filed 6th May 2022 which was admitted as Exhibit D1. The Defendant Witness also tendered Exhibits D2 – D6. The Defendant however objected to the admissibility of Exhibit D5 and D6 which was tendered through the Claimant Witnesses.  The Defendant was cross-examined and there was no re-examination, the Defendant closed their case and the matter was adjourned for the filing of final written addresses in line with Order 38 rule 20 (2).

 

 

 

FINAL WRITTEN ADDRESS OF THE DEFENDANT filed on 26th September, 2022.

 

ISSUES

A.     Whether the Claimants have established the liability of the Defendant to them for the reliefs sought under the Rivers State Public and Political Office Holders’ Allowances and Fringe Benefits Law, No 4 of 2002 and it’s Amendment Law No. 2 of 2007.

B.     Whether the Claimants have proved their case having

C.       

D.     ………………………………………………………………..regard to the standard of proof being on the preponderance of evidence, thus entitling them to the reliefs sought.

ON ISSUE 1

Whether the Claimants have established the liability of the Defendant to them for the reliefs sought under the Rivers State Public and Political Office Holders’ Allowances and Fringe Benefits Law, No 4 of 2002 and it’s Amendment Law No. 2 of 2007.

 

28.                        The Learned Counsel urging this Honorable Court to answer this issue in the negative, submitted that Section 131 of the Evidence act as amended provides that whosever desires any court to give judgment as to any legal right or liability dependent on the existence of facts to which he asserts must prove that those facts exists. ONUIGBO V. NWEKESON (1993) 3 NWLR (PT. 283) 533. It is Counsel’s submission that a Claimant has the burden to prove the relief sought in the statement of claim to obtain judgment and that this burden does not shift. And that our adversarial system of justice demands that because the Claimant is the party who claims the reliefs in the statement of claim, the onus probandi rests on him to prove the affirmative content of the statement of claim. ENEMCHUKWU V. OKOYE (2016) LPELR 40027 (CA).

 

29.                        Counsel posited that remuneration of political office holders at local government level is not one of the items listed in both the Executive Legislative List and the Concurrent Legislative List of the 1999 Constitution and that having been passed into law by the Rivers State House of Assembly in 2002 and subsequently amended in 2007, the Rivers State Public and Political Office Holders’ Allowances and Fringe Benefits Amendment Law No. 2 of 2007 remains the only extant law applicable to remuneration of political office holders at the local government level in Rivers State. And that no statutory instrument however enacted in the circumstance can either supplant it, apply and/or operate side by side with it. EXECUTIVE GOVERNOR OF OSUN STATE Vs. FOLORUNSHO (2014) LPELR-23088 (CA); HORSFALL V. RIVERS STATE POLYTECHNIC. BORI & ANOR (2018) LPELR-45954 (CA). It is Counsel’s contention that the meaning of the words in the statute must be collected from the plain and unambiguous expressions used therein rather than from any notion which may be entertained as to what is just and expedient. CONGRESS FOR PROGRESSIVE CHANGE v. LADO (2011) 14 NWLR (PT. 1266) 56. Furthermore, that where words used in a statute are clear and unambiguous as in this case, this court is enjoined to apply the literal canon of interpretation to same. BAMAIYI v. A-G, FEDERATION & 35 ORS (2001) 12 NWLR (PT. 727) 480; UTC (NIG) LTD V. PAMOTEI & ORS (1989) 2 NWLR (PT. 103) 244 AT 303.

 

30.                        Counsel contended that in making out his case for their entitlements under the said law, the Claimants failed to draw this Honorable Court’s attention to the section of the principal law or its amendment which places liability of payment of such entitlements on the Defendant. That under cross examination, the Claimants testified that it was the responsibility of the Defendant Council to pay their claims but failed to provide any proof of same for this court, submitting that in the absence of the Rivers State Government whose responsibility it is to pay the said claims as a party to this suit, the Claimants’ claims are doomed to fail. NICN/PHC/38/2019 — HON. NWEZE LOVEGOD & 2 ORS VS. AHOADA EAST LOCAL GOVERNMENT COUNCIL, judgment delivered on 23th July, 2020 per Hon. Justice Z. M. Bashir of the Port Harcourt Division; Ayeni v. Adesina (2007) 7 NWLR (Pt. 1033) 233 at 264 paras. A - B (CA).

 

ON ISSUE 2

Whether the Claimants have proved their case having regard to the standard of proof being on the preponderance of evidence, thus entitling them to the reliefs sought.

 

31. Citing the case of VEEPEE IND. LTD V. COCOA IND. LTD (2008) NWLR PT. 1105 P. 491, per Muhammad, JS.C, Counsel urged the Court Honorable Court to also resolve this issue in the negative. The Defendant Counsel argued that the Claimants each pleaded facts of how they were owed a grand total of N9, 230,823. 75 each out of which the Defendant purportedly paid each of them the sum of N250, 000 in March, 2013 as part payment in acknowledgement of said debt. However, that the Claimants in addition to failing to plead or lead any evidence as to what form the said N250,000 was paid, gave evidence at variance with their pleadings when PW3 and PW4 testified under cross-examination that the said money was paid in 2012. That the Claimants also testified that the N250, 000 was paid in cash to which they acknowledged receipt which they curiously failed to tender before the court as proof of the said part payment. And that pleadings do not constitute evidence, urging the court to disregard the said allegations as they go to no issue. ESEIGBE V. AGHOLOR (1990) 7 NWLR PT 161 p. 248. He contended further that from the reliefs circumscribed on the face of the complaint, the sum sought to be ordered for payment by the Claimants is a specific sum which must be specifically proven as it requires specific particularization in pleadings and strict proof by evidence. EKENNIA V. NKPAKARA (1997) 5 NWLR (PT.504) 152; NWANJI V. COASTAL SERV. (NIG.) LTD (2004) 11 NWLR (PT.885) 552, per Uwaifo, J.S.C (P.15, para. F).

 

32. Counsel submitted that the current position of the law on the issue of reimbursement of professional fees is as stated in GUINNESS (NIG.) PLC V. NWOKE [20001 12 NWLR (PT. 689) 135 at 150 to the effect that it is unethical and an affront to public policy to pass on the burden of solicitors fees to the opposing party. Furthermore, that professional fees of legal practitioners, like special damages, must be specifically pleaded, particularized and proved. FORTUNE INTERNATIONAL BANK PLC & ORS V. CITY EXPRESS BANK LTD (2012) LPELR-7900(CA); SAVANNAH BANK OF NIGERIA PLC V. OLADIPO OPANUBI [20041 LPELR-3023(SC), per Uwaifo, JSC.

 

THE CLAIMANTS’ JOINT FINAL WRITTEN ADDRESS filed on 31st December, 2022.

 

ISSUE

WHETHER, FROM THE TOTALITY OF EVIDENCE LED, THE CLAIMANTS HAVE DISCHARGED THE BURDEN OF PROOF REQUIRED OF THEM IN THIS CASE TO BE ENTITLE TO THEIR CLAIMS HEREIN.

 

33.                        Responding in the affirmative, Counsel argued that the first burden of proof in this case is placed on the Claimants to establish the facts asserted in their joint pleadings upon which their claims against the Defendant depend herein. Section 131 (1) of the Evidence Act 2011; Apena V Aileru (2015) 24 WRN, P61, @23, Lines 5-25. The Claimant’s Counsel argued that these Exhibits C5, C12, C17 and C23 tendered by the Claimants in further proves of the exact amounts they were indeed paid as Councilors from April, 2004 to May, 2007 are no doubt used as hangers to test veracity of their respective depositions on oath. Rabiu V Adebajo (2012) 15 NWLR, Pt. 1322, Pg. 125 @145-146, Para H-D, 149, Para B-C; Zakiai V Muhammad (2017) 17 NWLR, Pt1594, Pg181 @244, Paras A-B, Per Augie JSC. Furthermore, that these Exhibits C3 and C4 which show the exact statutory entitlements of the Claimant and Exhibits C5, C12, C17 and C23 which show the exact amounts paid to them are impeccable and most compelling and in support of the deposition on oath of the Claimants and need to be relied upon by the Honourable Court. DICKSON V SYLVA (SUPRS) (2017) 8 NWLR, PT 1567, PG167, @219-220, PARAS H-A.

 

34. It is Counsel’s contention that the Defendant is bound to pay the Claimants pre-judgment interest at 21% on the debt established in relief 1, from the 30th May, 2007 when their tenure ended and debt was due and payable till the date of judgment, to restore to the Claimants the losses flowing to them for the failure of the Defendant to pay their moneys earned since that 30th May, 2007 it was due. C. B.N. Vs. AHMED (2004) 15NWLR, PT.897, PG591 @608 PARAS B-C; CROWN FLOUR MILLS LTD V OLOKUN (2008) 4 NWLR, PT 1077, PG254 @ 291, PARAS D-E, 292 PARA C.

 

35.                        The Claimant’s Counsel submitted that the Defendant is also bound to pay to the Claimants the post- judgment interest on the judgment sum at 21%, from date of judgment to when it is liquidated, as claimed under relief 3, which is statutorily covered by Order 47 Rule 7 of the Rules of the Honourable Court and the Claimants are entitled to it which is also incidental to the main claim. NIPOST V IRBOK (NIG) LTD (2006) 8 NWLR, 982, PG323, @ 341, PARAS G-H.

 

36.                        Counsel contended that relief 4 and last relief of the Claimants is for payment of the sum of N1, 500, 000.00 (One Million Five Hundred Thousand Naira) only, being the legal fee each of them paid to their Counsel for recovery of the debts from the Defendant, is also statutorily covered by Order 55 Rule 5 of the Rules of the Honourable Court which the Claimants are entitled to have, so as to be indemnified for cost of litigation herein. NAUDE V SIMON (2014) ALL FWLR, PT753, PG 1878, @ 1905, PARAS A-B; REWANE V OKOTIE-EBOH (1960) SCNLR461, (1960) NSCC (VOL. 1) 135 @ 139; LONESTAR DRILLING NIG LTD V NEW GENESIS EXECUTIVE SECURITY LTD (2011) LPELR 4437 @ 11; UBN PLC V CHIMAEZE (2014) 9NWLR, PT 1411, PG166 @183-185, PARAS B-E.

 

37.                        Counsel submitted that the onus or burden of establishing the contrary facts consequently shifted to the Defendant. Section 133 (1) and (2) of the Evidence Act 2011; MRS. PAULINE ASIKA AND 3 ORS V CHARLES CHUKWUMA ATUNANYA (2008) 17 NWLRPT 1117, PG 484 AT 518 PARA E-F; EGHARAVBA V OSAGIE (2009) 18 NWLR, 1173, PG 299, © 315 PARAS B-C.

38.                        It is Counsel’s position that the Defendant is legally required to prove the positive assertion it made that the Claimants were fully paid all their statutory entitlements in issue herein. Section 136 of the Evidence Act, 2011 as amended and the case of SEFIK & ORS V MUNA & ORS (2007) 10 NWLR (PT1043), P 502. He argued that the Defendant on its part asserted the contrary that the Claimants were fully paid all their statutory entitlements as provided for in Exhibits C3 and C4 and was therefore bound to prove that positive assertion. Buhari V Obasanjo (2005)7 SCN) 1 @ 47; (2005) 13 NWLR, PT 941, PG1; UDO V STATE (2016) 34 WRN, Pg. 60, Per Kekere-Ekun) SC at 82 lines 5-20.

 

39. Counsel posited that a perverse decision by Court is one which is not supported by any evidence placed before a court by the parties in the case, one that is persistent in error, one that is unreasonable or different from what is required. That it is that decision wherein the judge took into account extraneous matters or ignored the obvious. Agina V Agina (1991) 4NWLR, PT185, PG358; Nepa Oso Sanya (2004) 1 S.C., 189, (2004) 5NWLR, PT867, PG6O1; Oladipo V M. L. G. A. (2010) 5NWLR, PT1186, PG117, State Vs. Barminas (2017) 5NWLR, PT1588, PG177 @204, Paras F-H; State Vs. Solomon (2021) 13 NWLR, PT1793, PG3O1, @327, Paras G-H; Okonkwo Vs. FRN (2022) 8 NWLR, PT1833, PG427, @452, Paras A-C.

 

40.                        It is Counsel’s submission that an action cannot be rendered incompetent simply because all the necessary parties to a suit have not been joined in the suit. Therefore, even if it was necessary to join the Accountant General of Rivers State as a party in the Suit No. NICN/PH/84/2019 or in this present because it was the party named in the Exhibits C3 to pay the entitlement therein, non-joinder of it ought not to or should not render the Suits incompetent. DAPIALONG V LALONG (2007) 5 NWLR, PT 1026, PG 60 © 212 PARAS E-F, 213 PARA B. Counsel posited that this cause of action was therefore rightly conceived and brought by the Claimants against the Defendant only and not against the Accountant General or the Rivers State Government or any other party. That the Claimants cannot be compelled to sue the Accountant General of Rivers State or the Rivers State Government or any other party they have no claim against. GREEN V GREEN (1987) 3 NWLR, PT 61, PG 480; YUSUF V ADEYEMI (2009) 15 NWLR, PT1165, PG 616, @ 630, PARAS C-F.

 

41. He argued that by this material evidence in Exhibits D2, D3 and D4, the Defendant confirmed itself responsible for payment of the entitlements of the Claimants and cannot resile from it in this case. Section 169 of the Evidence Act, 2011 (as amended), formerly section 151; KOKOORIN V PATIGI L.G. (2009) 15 NWLR, PT 1164, PG 305, @227, PARAS A-C. Counsel submitted that the Claimants have been able to establish through the material evidence in Exhibits C3 and C4 their exact entitlements as Councilors, and that the law is settled that a party is entitled to judgment for any part of his claim he is able to establish to the satisfaction of the court even though the reduced sum was not expressly claimed. Okoebor V Eyobo Engineering Services (Nig) Ltd (1991) 4 NWLR, Pt187, at 553; Ekpenyong Vs. Nyong (1975) 2 SC, 71 PP511, PARA B, 513, para A.

 

42. Counsel contended that the claims for payment of the legal fees paid to their Counsel by the Claimants in this suit is statutory claim provided for and covered by Order 55 Rule 5 of the Rules of the Honourable Court and the current position of the law on the issue can be seen in the more recent cases of NAUDE V SIMON (Supra), UBN PLC V CHIMAEZE (Supra) and MEKWUNYE Vs. EMERATES AIRLINES (2019) 9 NWLR, PT1677, PG191 @234-235, PARAS H-B, 242, PARA A. Counsel further in response to the Defendants argument that the claimant did not prove their claims for payment of the legal fees paid to their Counsel were not proved and that Exhibits C9, C13, C18 and C21 are mere receipts purportedly issued to each of the Claimant by their Counsel. He submit that the Defendant’s argument is devoid of evidential value and does not suffice as facts which will, at least throw doubt on the oral and documentary evidence led by the Claimants in proof of their claims for the legal fees paid in this suit and its. SAVANNAH BANK OF NIGERIA PLC Vs. OLADIPO OPANUBI (2004) LPELR-3023 (SC).

 

REPLY ADDRESS OF THE DEFENDANT IN RESPONSE TO CLAIMANTS’ FINAL ADDRESS filed on 04 November, 2022.

 

43. The Defence Counsel submitted that where the word ‘may’ is used but a right or obligation is thereby conferred, then the word ‘may’ is to be interpreted as ‘shall’ and is taken as mandatory. OMOMZUAWO & ANOR v. UGBODAGA & ORS 2021) LPELR 53434(CA), per Georgewill, JCA; ADEGBENRO V. AKINTILO (2010) 3 NWLR (PT. 1182) 545; ADIGUN V. OSAKA (2003) 5 NWLR (PT. 812) 105. On when the word “may” will connote a mandatory application in a statute, Counsel relied on the case of ADESOLA V. ABIDOYE (1999) 14 NWLR (PT. 637) 28 at 56, per Karibi Whyte, JSC.

 

44. Counsel contended that in the prevailing circumstances of this case, the Claimants cannot rely on Exhibits D2, D3 & D4 as admission of liability in the absence of express imputation of liability by Exhibits C3 & C4. After all, that the law is still extant that he who alleges must prove. AKINFOSILE V. IJOSE (1960) SCNLR 447; (1960) 5 FSC 192 at 198.

 

45.                        With regards to acknowledgement of debt as being argued by the Claimants in paragraphs 3.70 — 3.74 of its address, Counsel referred the court to the case of NIGERIA SOCIAL INSURANCE TRUST V. KLIFCO NIGERIA LIMITED (2010) 13 NWLR (PT. 1211) 329; SPENCER VS HEMMERDE (1922) AC 578.

 

Court’s Decision

46. I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind are the issues formulated by the parties especially as both issue of the defendant are practically the same issue formulated by the claimant.

 

47.                        Defendants Issues

A.     Whether the Claimants have established the liability of the Defendant to them for the reliefs sought under the Rivers State Public and Political Office Holders’ Allowances and Fringe Benefits Law, No 4 of 2002 and it’s Amendment Law No. 2 of 2007.

B.     Whether the Claimants have proved their case having regard to the standard of proof being on the preponderance of evidence, thus entitling them to the reliefs sought.

48.                        Claimant’s issue

 

I.                    Whether, from the totality of evidence led, the claimants have discharged the burden of proof required of them in this case to be entitled to their claims herein.

 

II.                 And resonates with the issue of; - “Whether the Claimants had proved their case to be entitled to their reliefs to the satisfaction of this Court.

 

 

49. The claimants’ relief are as follows:

a.      The sum of N9, 068, 378.39 (Nine Million, Sixty Eight Thousand, Three Hundred and Seventy Eight Naira, Thirty Nine Kobo) only to the Claimants each, being the outstanding statutory entitlements owed the Claimants each as Councilors under the Remuneration Package for Legislature at the Local Government Level with the Circular of 7th November, 2001/the Reviewed Version of it, Volume 11 of 7th February, 2007 and the Rivers State Public and Political Office Holders’ Salaries, Allowances and Fringe Benefits Law, No.4 of 2002/the (Amendment) Law, No.2 of 2007, from April, 2004 when they were sworn in as Councilors till May, 2007 when their tenures ended.

b.      Interest on the above debt at 21% from 30th May, 2007 when the Claimants’ tenure ended and the debt was due and payable till the date of judgment.

c.       Post-judgment interest of 2l% per month on the judgment sum until judgment is liquidated by the Defendant.

 

50. In relief a the Claimant are asking for the sum of N9, 068, 378.39 (Nine Million, Sixty Eight Thousand, Three Hundred and Seventy Eight Naira, Thirty Nine Kobo) only  each to the Claimants each, being the outstanding statutory entitlements owed the Claimants each as Councilors under the Remuneration Package for Legislature at the Local Government Level with the Circular of 7th November, 2001/the Reviewed Version of it, Volume 11 of 7th February, 2007 and the Rivers State Public and Political Office Holders’ Salaries, Allowances and Fringe Benefits Law, No.4 of 2002/the (Amendment) Law, No.2 of 2007, from April, 2004 when they were sworn in as Councilors till May, 2007 when their tenures ended.

 

51. b. Interest on the above debt at 21% from 30th May, 2007 when the Claimants’ tenure ended and the debt was due and payable till the date of judgment Post-judgment interest of 2l% per month on the judgment sum until judgment is liquidated by the Defendant.

 

52. d. The sum of N1, 500, 000.00 (One Million Five Hundred Thousand Naira) only to the Claimants each, being the legal fee the Claimants paid each to their Counsel to institute and prosecute this matter for recovery of the debt from the Defendant herein.

 

53. The Claimants are seeking the payments of shortfalls or under payments made to them and payments of salaries not paid during their stint as elected counselors. They are also claiming Furniture   allowances and severance pay. They are also seeking pre and post judgement interest and refund of legal fees.

 

 

54. In support of their claims the claimant tendered the frontloaded the following Laws

a.      Rivers State Public and Political Office Holders’ Salaries, Allowances and Fringe Benefits Law, No. 4 of 2002 (called the “Rivers State Law No.4 of 2002”)

b.      Rivers State Public and Political Office Holders’ Salaries, Allowances and Fringe Benefits (Amended) Law No.2 of 2007 (called “the Rivers State Amended Law No.2 of 2007”).

c.       Circulars

d.      Remuneration Package for Legislature at the Local Government Level with the Circular of 7th November, 2001 (called the Remuneration Instrument of 7th November, 2001)

e.      Reviewed Version of it, Volume 11 of 7th February, 2007 (called the Reviewed Remuneration Instrument, Volume 11 of 7th February, 2007),

55. And the claimants have placed reliance on all of these instruments. The position of the law is that circulars have the effect of statutory instruments since they can by the preamble to the Public Service Rules amend the main Rules themselves. See (unreported) SUIT NO. NICN/LA/464/2013 MR CHINWEORDER CHUKWU AWA V. NIGERIA SOCIAL INSURANCE TRUST FUND (NSITF) delivered on 16 March 2015. And the Public Service Rules have constitutional force. Furthermore, in labour relations, circulars may have the kind of force of statutory instruments only if they confer a benefit on the employee(s). See OYO STATE V. ALHAJI APAPA & ORS [2008] NLLR (PT. 29) 284, where this Court acknowledged, that a circular conveying salary increase for workers would have the force of law.

 

56.                        The Defendant had no issue with the River State enactment, they appear to be saying that the claimant have not shown this court the way and manner the amendment Reviewed Version of it, Volume 11 of 7th February, 2007 (called the Reviewed Remuneration Instrument, Volume 11 of 7th February, 2007),  is to apply to them if the law is not enacted by River state. To the defendants all claims as to  benefits deriving from Reviewed Version of it, Volume 11 of 7th February, 2007 (called the Reviewed Remuneration Instrument, Volume 11 of 7th February, 2007), which they describe as a mere circular cannot be granted. What this means is that the Claimants are not entitled to the benefit from the said Reviewed Remuneration Instrument, Volume 11 of 7th February, 2007.  Curiously the Claimant did not advance any argument in contradiction to the Defendants submission and the law is pretty clear that general or evasive denials, mere denials, and non-categorical traverse of averments are in law not denials and so can be deemed as admissions requiring no further proof. See VANGUARD MEDIA LTD V. AJOKU [2003] FWLR (PT. 173) 68 CA and OKE V. AIYEDUN [1986] 2 NWLR (PT. 23) 548.  See TATAMA V. JALOMI [2003] FWLR (PT. 181) 1682, SANUSI V. MAKINDE [1994] 5 NWLR (PT. 343) 214 and DIKWA V. MODU [1993] 3 NWLR (PT. 280) 170. And the rules of pleadings, also allowed as per section 123 of the Evidence Act 2011.

57. The Claimants’ document clearly show their entitlement as elected Councilors, the Defendants argument that they, the Claimants; had not proven to the court the Defendant’s liability in this suit I find is most untenable especially after considering the state of affairs of Local Government Councils. It is necessary to note that Section 7 of the 1999 CFRN (as amended) provides for a democratically elected third tier of government. The Rivers State Laws and even the Remuneration Package for Legislature at the Local Government Level with the Circular of 7th November, 2001/the Reviewed Version of it, Volume 11 of 7th February, 2007 and  all support the constitutional provision I find.

 

58. Also worthy of consideration is the pronouncement of His Lordship the Learned Appeal Court Judge Mohammed, J.C.A wherein his Lordship had cause to review the Constitutional provisions governing the financial base of the Local Government Councils in the case of KNIGHT, FRANK & RUTLEY (NIG) & ANOR V. A-G OF KANO STATE  (1990) LPELR-14409(CA) (Pp. 10-12 paras. A)."I have given very careful consideration to the argument of Mr. Oyeleke that the Constitution merely guaranteed the existence and independence of Local Government Councils. I have also looked into the fiscal provisions in the Constitution whereby the revenue base and the financial independence of the local government councils has been adequately secured. Under S.7 (6)(a) and (b) the National Assembly has been mandated to make provisions for the statutory allocation of public revenue to local government councils in the Federation and likewise the House of Assembly of a State. Another fiscal provision where the Constitution clearly spelt out the procedure of allocation of funds to the Local Government Councils is S.149 which deals with distributable pool account. I will reproduce Subsections 5, 6 and 7 which are relevant to the issue about the revenue base of Local Governments:

a.     5. Each state shall maintain a special account to be called "State Joint Local Government Account" into which shall be paid all allocations to the local government councils of the State from the Federation Account and from the Government of the State.

b.     6. Each State shall pay to Local Government Councils in its area of jurisdiction such proportion of its total revenue on such terms and in such manner as may be prescribed by the National Assembly.

c.      7. The amount standing to the credit of the local government councils of a State shall be distributed among the local government councils of the state on such terms and in such manner as may be prescribed by the House of Assembly of the state."

 

59. When one considers the provisions reproduced above it will be quite clear that the Constitution specifically provided for the establishment of local government councils and in addition assigned functions to them. In the First Schedule to the Constitution all the recognized local government councils in each state of the Federation have been listed. More have been added to the list through Decrees. With all this could Mr. Oyeleke be right to say that the Local Government Councils are not a creation of the Constitution? If they are not could any state dissolve those already created in their area of jurisdiction or decline to assign any function to them as has been provided by the Constitution. In Section 277, the Interpretation, citation and commencement, in part IV of the Constitution, government has been defined to include the Government of the Federation, or of any state, or of a Local government. Councilor, any person who exercises power or authority on its behalf. I am of firm view therefore that Mr. Oyeleke is wrong and I agree that the local government councils are as much within the design and care of the Constitution in the same way as the State and the Federal Government. I also agree that the Constitution has provided for three tiers of governments, Federal, State and Local."  See also the case of EDO STATE HOUSE OF ASSEMBLY & ORS V. IGBINEDION & ORS   (2021) LPELR-55990(CA) (PP. 60-62 PARAS. E). I find that the liability of the Defendant in this matter has been established and is constitutionally guaranteed I find and hold.  And as the Claimant rightly pointed out mis joinder does not vitiate a claim.

60. In the first part of relief (c), I find amounts to pre judgement interest and this Court does not award pre judgement interest, see the case of  NICN LA 15 2010 KURT SEVENSEN v, EMMERGING MARKETS TELECOMMUNICATION SERVICES LIMITED a ruling delivered on the 8th March 2011

 

61. The claimant had also asked for (d) The sum of N1, 500, 000.00 (One Million Five Hundred Thousand Naira) only to the Claimants each, being the legal fee the Claimants paid each to their Counsel to institute and prosecute this matter. I agree with the defendant that this claim is against public policy. The position of the law is as was stated in the case of GUINNESS (NIG.) PLC V. NWOKE [2000] 12 NWLR (PT. 689) 135 AT 150 “that it is unethical and an affront to public policy to pass on the burden of solicitor’s fees to the opposing party”. I hold that the case of GUINNESS (NIG.) PLC V. NWOKE [Supra] was frowning on something like this. The Claimants are seeking a refund of the N1.5 million they had each paid to their Council (severally) as payment for his legal representation. Professional fees, like special damages, must be specifically pleaded, particularized and proved. See FORTUNE INTERNATIONAL BANK PLC & ORS V. CITY EXPRESS BANK LTD [2012] LPELR-7900(CA). Mere admission in pleadings is not enough. In SAVANNAH BANK OF NIGERIA PLC V. OLADIPO OPANUBI [2004] LPELR-3023(SC), His Lordship Uwaifo, JSC, on what a legal practitioner’s bill of charges should contain, held that a bill of charges should particularize the fees and charges “e.g. (a) perusing documents and giving professional advice; (b) conducting necessary (specified) inquiries; (c) drawing up the writ of summons and statement of claim; (d) number of appearances in court and the dates; (e) summarized statement of the work done in court, indicating some peculiar difficult nature of the case (if any) so as to give an insight to the client as to what he is being asked to pay for; (f) the standing of the counsel at the bar in terms of years of experience and/or the rank with which he invested in the profession. It is necessary to indicate amount of fees against each of these items (emphasis is this Court’s)”. The receipts tendered in this case do not contain the items enumerated by His Lordship Uwaifo, JSC. What all this adds up to is that the present claim for professional fees falls short of the legal requirement. For all these reasons, I am not satisfied with the proof of this claim and so cannot grant it. This part of Relief d) accordingly fails and so is dismissed.

 

62. All in all the Claimants’ case succeeds but only thus far; -

a.      The sum of N8, 304, 311.07 (Eight Million, Three Hundred and Four Thousand, Three Hundred and Eleven Naira, Seven Kobo) only to be paid to the Claimants each, being the outstanding statutory entitlements owed the Claimants each as Councilors under the Rivers State Public and Political Office Holders’ Salaries, Allowances and Fringe Benefits Law, No.4 of 2002/the (Amendment) Law, No.2 of 2007, from April, 2004 when they were sworn in as Councilors till May 2007 when their tenure expired.

b.      Cost of this suit is put at N1m only.

 

63. All sums are to be paid within 30 Days thereafter 10% interest shall attach.

 

64. This is the Court’s Judgement .and it is hereby entered accordingly.

 

 

……………………………….

HON. JUSTICE E. N. AGBAKOBA

JUDGE

COURT 3 ABUJA