IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE
DATE: THURSDAY MAY 11, 2023 SUIT NO: NICN/EN/10M/2019
BETWEEN:
HON. IKEAGWU LINUS……………………………………CLAIMANT
AND
IGBO-ETITI LOCAL GOVERNMENT COUNCIL……..DEFENDANT
APPEARANCES:
1. C.I. ODO WITH A.I. UKOH – FOR THE CLAIMANT.
2. BONIFACE N. UGWU WITH C.D. OSAKWE – FOR THE DEFENDANT.
JUDGMENT
INTRODUCTION
ORIGINATING SUMMONS [OS] filed at the Enugu State High Court on the 23rd of October 2018 commenced this suit. It was subsequently transferred to this Court via the Ruling of the Ogbede High Court dated 18th of April 2019 – see P. 68-69 of Process File of the sister case Suit No. NICN/EN/8M/2019 – Chizoba v. Igbo-Eititi Local Government Council. Subsequently, the parties filed fresh processes bearing the Court’s name. The claimant’s Statement of Facts [SF] filed in this Court on 7th January 2020 has the following reliefs at paragraph 13:
a) A declaration that the Claimant is entitled to the outstanding sum of N5,863,680.00 being the balance of what the Defendant owes the Claimant, as his severance benefit for the two terms of service as a Councilor, for Ukehe Ward 3.
b) An order for the Defendant to pay the Claimant the sum of N5,863,680.00 being the balance of the money owed to the Claimant.
The Defendants reacted via a Statement of Defence [SD] filed on the 4th of March 2020. There was no reply to the SD, therefore, issues were deemed joined on the SD. I shall now proceed to the summary of the pleadings.
SUMMARY OF PLEADINGS
A: Statement of Facts
The claimant pleaded that; he was the former councilor that represented the people of Ukehe Ward 3 of the defendant for two tenures, which began on the 4th of January-4th of January 2016. He explained that, in 2012 he was elected for his first tenure as councilor of Ukehe ward 4 on the 8th January 2014 and ended on the 4th of January 2016.
He also pleaded that, upon the conclusion of the second tenure, he was owed an outstanding furniture and severance benefit totaling N6,108,000.00 (being N1,236,000.00 and N4,872,000.00 respectively). He equally stated that, there was a joint meeting between the claimant, the defendant and other political office holders in November 2017, where the Enugu State Government directed the account team of the defendant to compile the indebtedness of all political office holders from 1999 to 2016 via an internal memo of which the claimant’s name appeared as No. 19.
He pleaded too that, at the said joint meeting the Enugu State Government undertook to make a part-payment of N244,320.00 to the Claimant from the joint account operated with the defendant, leaving a balance of N5,863,680.00, which was to be paid on or before the 31st July 2018. He mentioned that, the said sum of N244,320.00 was paid via cheque to him on the 20th of December 2017 from a joint account of the defendant and the Enugu State Government.
He further pleaded that, despite the undertaking by the defendant to pay the aforementioned amount on or before 31st July 2018, it failed to make any payment but rather pleaded with the claimant and others at the end of July to check back on the 15th of August 2018 after the defendant must have had a meeting with the Enugu State Government. They checked back on the said date but no official of the defendant was on ground to brief the claimants and others, of the outcome of the meeting. He completed the pleading by stating that, he briefed his solicitor who wrote a letter of demand of the sum of N5,863,680.00 to the defendant, which was served on the 27th of August 2018 but yet the defendant has refused to pay. This ends the claimant’s SF. I now proceed to the summary of the SD.
B: STATEMENT OF DEFENCE
The defendants denied paragraph 1 of the SF and counterpleaded that, the claimant worked for the defendant and was paid all the statutory benefits, which he was entitled to. The defendants denied the alleged claims contained in paragraph 4 o the SF that, they are not statutory benefits.
In response to paragraph 5, the defendants counterpleaded that there was no such agreement between the parties. The defendants also counterpleaded that, paragraphs 6 and 7 are not true and that, the Enugu State Government did not seek for the consent of the defendant to do the purported act. The defendant added that, the claimant together with past ex-councilors paid a visit to the Governor of the state, while he was seeking for a second term and pleaded with him to pay the severance allowances denied by the past administration, of which a political promise was made to them and only 9 out of 20 ex-councilors took it as a constitutional right.
Furthermore, the defendants counterpleaded that; it maintains an independent account through which the claimant was paid all his statutory entitlements and benefits during the subsistence of his service with the defendant. The defendant denied paragraphs 8, 9 and 10. In response to paragraph 9, the defendants counterpleaded that, it has never made any undertaking to pay the claimants any unconstitutional allowances. In response to paragraph 10, the defendants counterpleaded that, it never pleaded with any person for time within which to meet the State Government.
The defendant denies paragraphs 11 and 12 of the SF and states that, the purported letter of demand was not sent and delivered to it. The defendant ended its SD by stating its intention to file and serve a Notice of Preliminary Objection [NPO] challenging the competence of the suit and highlighted the grounds.
The defendant sought an order of the Court to dismiss the suit in its entirety and award a cost of N5,000,000.00 against the claimant. This ended the SD, as there was no Reply. Therefore, I proceed to the summary of the proceedings.
SUMMARY OF PROCEEDINGS AND EVIDENCE
This matter came up for the first time on the 22nd October 2019, on which date, Court ordered the claimant to re-file his originating processes in line with the rules of this Court. The case came up next 29th of January 2020 but was adjourned at the instance of the defence for hearing. It came up again on the 4th of March 2020 but the matter was adjourned, yet at the instance of the defence and cost of N10,000 was awarded in favour of the claimant. The matter came up on the 2nd of February, 2021 for hearing and counsel for the defendant informed the Court that, there was a change of counsel and, requested for an adjournment to enable them study the file and cost of N20,000 was awarded against the defendants.
The case came up on the 24th of March 2021 for definite hearing but the claimant’s counsel raised the issue of unpaid cost when the defendant’s counsel tried to move his motion for extension of time to regularize their processes. The erudite counsel to the defendant sought an adjournment to amend the irregularities discovered in the processes filed by the previous counsel. The Court therefore awarded cost of N40,000 against the defendants.
The matter came up on the 11th November 2021 and the defendant’s motion for enlargement of time filed on the 4th of March 2020 was granted as prayed. The claimant’s counsel also withdrew his application for summary judgment and, it was accordingly struck out together with the counter affidavit [CA] filed against the application. Meanwhile, the first in the series of the three sister cases that constitute the first in the first set: NICN/EN/8M/2019: Hon. Chizoba v. Igbo-Etiti LGC was opened on the 9th of February 2022 with Hon. Nnadi Emmanuel Chizoba who testified as CW1. Meanwhile, on 3rd November 2022 in the second of the first set of the sister cases: NICN/EN/9M/2019 – Hon. Romanus v. Igbo-Etiti LGC came up and, the following transpired:
“APPEARANCES:
C.I. Odo – for the claimant.
Boniface N. Ugwu – for the defendant.
Odo – Based on the hints of the Court that we should explore the possibility of adopting the first in the series as test case for the others, we have agreed to use the first Batch A or the first set of three cases as test case for the other two.
The first in issue was adjourned to 14th December 2022 for adoption. We pray that this be similarly adjourned.
Court – Case adjourned to 14th December 2022 for adoption of the FWAs in the test case for this.”
This order also applied to case No. 10M. These are cases Nos. 8M-10M in the series.”
Meanwhile, Order 38, R. 33(1) of the NICN Rules provides:
“In any proceeding before the Court, parties may by consent at the close of pleadings agree to trial on records where they rely only on the documents and exhibits frontloaded and thereby dispense with the need for oral testimony and/or cross-examination”
From the above, it is clear that, the agreement of the parties is that, since the facts are exactly the same in all respects, except with regards to the minor details of differences in the names of the councilors and the particular wards of the LG in which they individually served, the decisions in 8M should be binding on the two others, which includes this one. It means the adoption of hybrid trial on record pursuant to Order 38, R. 33(1) of the NICN Rules, as quoted above, plus the XX of CW1 in 8M. And since evidence or facts are the fulcrum of the applications of the laws, the XX in the first in the series remains relevant to this one. That is why the defence counsel said in his FWA that:
“Counsel on both sides adopted the evidence-in-chief and cross examination [sic] in SUIT NO. NICN/EN/8M/2019 to apply in suit NO. NICN/EN/10M/2019 and urged the court to adopt same and it was granted.”
The Supreme Court approved of this procedure in situations whereby the cases involved the same parties with exactly the same facts, issues and arguments that, the first could be used as test case for the others - Ajijola v. Rasaki & Ors (2019) LPELR- [no suit no given] (SC) 15-16, D-F. For that reason, the evidence in the 8M becomes relevant. Claimant opened 8M on 9th February 2022 with the claimant testifying as CW1. He was sworn on the Holy Bible and adopted the Written Statement on Oath [WSO] made 07/01/2020. Exhibits C1 and C2 were admitted on this date. Thereafter, the case was adjourned to the following day for ruling, which did not take place. The Ruling was delivered on 17th February 2022 and Exhibit C3 was admitted. Thereafter, CW1 continued with his evidence-in-chief. Exhibits C4 and C5 were admitted and, the case thereafter adjourned. It came up next on 15th June 2022 for Cross-Examination [XX].
Under XX, CW1 admitted he was a political appointee for four years. He admitted too that, the defendant did not owe him salary for the period he served. He answered no to the question that, he was not by law entitled to payments of furniture and severance allowances and that contrarily, the indebtedness was admitted in one of the joint meetings between the state and the local governments that, the money be paid without delay. He said he did not know whether government proceedings were usually recorded but that; the evidence was in the 4% part-payment of 20/12/17, which had been tendered as Exhibit C4. He said Exhibit C4 emanated from the defendant through the joint account. He admitted that, their tenure ended in January 2016, while he instituted this action January 2020. He said they kept promising that they would pay by July 2018. To the question that he had no evidence of a meeting between the government of Enugu State and the defendant, where the defendant agreed it would pay, he replied that, he was just invited to a meeting but that, he did not know whether the meeting had secretary or recorder. He said he did not know the person who summoned the meeting too, but that; the defendant invited him.
CW1 said the cheque already tendered was proof of the joint account. To the question that the other councilors did not sue because, they knew there was no law backing the payments he was claiming, he said, he knew about himself alone and that, legislative processes were the same from federal to state and local government. He claimed to be witness of truth and the XX was ended without re-examination. Thereafter, the case was adjourned for defence. It came up subsequently for defence on 20th October 2022. The defence opened with Dr. Moses Ogbonna Agudiegwu as DW1. DW1 affirmed and adopted his WSO made 04/03/2020 and was made available for XX.
Under XX, DW1, who said he was a lecturer said, he however had a short break from 2016-2019 when he served as the Secretary of the defendant but that, he did not know the claimant because, he did not serve as councilor when he served as Secretary. DW1 said he signed the WSO after he had left office as Secretary because; the cause of action arose during his tenure. He said he knew about the cause of action because, the past councilors came to submit their document when he was in office. He said Exhibit C5 did not pass through him though, he was in office and that, he also did not know if the defendant replied it. He said he was not one of the signatories Exhibit C3 but admitted the principal officers signed it. He said Exhibit C3 came up around 2016 after much pressure on the Governor, who made political promise to them, including himself because, he had earlier served as councilor in the same defendant from 1999-2002. He said the Governor told them to go and prepare the amount being owed to the past councilors for his consideration and that; he prepared that of his set.
He said they submitted to the office of the Permanent Secretary Finance [PS Finance] and that, in December the Governor called them to a meeting at the Enugu East LGC and gave them cheques, promising that he would look at the issue but warned that, we should know he was not the one owing us and thereafter, the Governor was not forthcoming. He said his name could not be in Exhibit C3 because, it did not contain all past councilors, which would have made it to be above 500 names and that, it only covered 2012-2016, while he became secretary in March 2016, after the set. He admitted he was in the meeting the Governor of Enugu State summoned in 2017 but that; it was not a meeting, as the Governor just issued them some cheques. He said the meeting did not take place at ALGON Office, Enugu but in Enugu East LG and that, it was different dates for individual LGs.
He said the cheque was issued from London-Paris Club Refund and not from statutory account, which was not joint account. He said he had different signatures for his accounts. He signed the three signatures and it was admitted as Exhibit XX1. He said he was not aware of the date the case was filed in 2019 but was aware when it came to his office. The XX was brought to an end without re-examination and, the defence closed its case, while the case was adjourned for adoption of Final Written Addresses [FWAs].
As indicated earlier, the case was adjourned on October 20, 2022 to 14th December 2022 for adoption of the FWAs but eventually came up for adoption 15th February 2023 for adoption of the FWAs. BONIFACE N. UGWU moved the motion to regularise the defence FWA and it was granted unopposed. Thereafter, erudite counsel proceeded to adopt the FWA and Reply on Points of Law. Thereafter, erudite C.I. ODO adopted the claimant’s FWA and urged the Court to grant the reliefs claimed. The case was thereafter adjourned to March 7, 2023 for judgment. As it was not ready on this date, it was adjourned sine die and date communicated to the erudite counsel to the parties when it became ready. Let me now go to summary of the FWAs. Since the parties’ erudite counsel have adopted the first in the series as test case for this, the implication is that the FWAs are exactly the same. I therefore take the liberty to re-present the FWAs in respect of 8M.
PARTIES’ THEORIES OF THE CASE
A: Defendant’s Theory of the Case
Erudite BONIFACE N. UGWU franked the defendant’s theory of the case and, prefaced it with the following:
“Counsel to both sides adopted the evidence in chief and cross examination in SUIT NO. NICN/EN/8M/2019 to apply in suit No. NICN/EN/10M/2019 and urged the court to adopt same and it was granted.”
Thereafter, the erudite defence counsel submitted two issues, to wit:
1. Whether the National Industrial Court has jurisdiction to determine the suit of claimant taking into consideration the claimant’s claim and evidence before the court. [sic]
2. Whether the claimant proved his case with credible evidence beyond all shadow of doubt to be entitled [sic] his claim taking into consideration the claimant’s claim and evidence before the court?
Arguing issue 1, on the Court’s jurisdiction, the erudite counsel listed the factors that give a court jurisdiction in accordance with Madukolu v. Nkemdilim (1962) 2 SCNLR 341. He argued that, the claimant failed to issue on the defendant, pre-action notice, as enjoined by S. 137 of the Enugu State Local Government Law [ESLGL] and that, the defendant did not waive the right to pre-action notice, as it pleaded it in paragraph 19 of its SD and cited Igrude v. Ecobank Ltd & Ors (2018) LPELR-45563 CA. He gave the elements of valid pre-action notice and submitted that, the claimant served nothing that corresponds. He also argued that, the suit is statute barred by virtue of S. 136 of the ESLGL, having been instituted 7th January 2020, whereas, the claimant’s second tenure as councilor elapsed 4th January 2016, which is more than the 6 months provided by the law. He cited a lot of authorities on the effect of limitation law. He argued that, both issues deprived this court of jurisdiction. Erudite counsel cited Mobil Producing Nig. Unltd v. LASEPA (2002) 18 NWLR, of which he did not give further citation details and Amachere & Anor v. SPDC Nigeria Ltd (2011) LPELR-4474 (CA). The erudite counsel urged the Court to dismiss the case for lack of jurisdiction and moved to issue 2.
Under issue 2, which deals with whether the claimant proved his case, the erudite counsel argued that, SS. 131 & 134 placed the burden of proof on the claimant, and submitted that, credible evidence must be adduced in line with the pleadings. He argued that, the ESLGL did not provide for the allowances the claimant claimed and by this omission, only the Revenue Mobilisation, Allocation and Fiscal Commission [RMAFC] could do. Erudite counsel cited Omokolo & Ors v. RMAFC & Ors (2017) LPELR-44034 (CA) along with SS. 7(1), 84, 124(1) & Paragraph 32(d), Part 1, Third Schedule of the Constitution on existence of local governments and the power of House of Assembly to prescribe remunerations payable to the listed officers but not exceeding the limit already placed by the RMAFC. The erudite counsel, relying on Aladejobi v. NBA (2013) 15 NWLR (Pt. 1376) 66, 83 argued that, the bottom-line of all these, when construed along with the determinant phrase “shall have power to determine” makes whatever the RMAFC determines for the legislators, excluding other political office holders, throughout the federation, including local government councilors, final and conclusive and, where it does not provide, no other organ could.
Erudite counsel submitted that, as such, S. 7(1) of the ESLGL does not empower the Enugu State to make any law for remuneration of councilors but only for the finances of the local governments, which is distinct from remunerations of its officials. Erudite counsel submitted that, the provisions of Paragraph 32(d) of Part I of the Third Schedule of the Constitution, relating to the remunerations of councilors, constitute an exception to the power of the State Government over local governments, in line with the decisions of the Supreme Court in AG Abia State v. AGF (2002) 6 NWLR (Pt. 763) 264, 422 and Action Congress v. Osun State Independent Electoral Commission (2009) 12 NWLR (Pt. 1155) 223, 244-245 and 246. It was submitted that, in virtue of the foregoing, no other organ or tier of government could determine the remunerations of local government councilors, apart from the RMAFC.
Erudite counsel argued that, the claimant admitted that, the defendant did not owe him any salary and, since he did not tender any document from RMAFC to show that, he was entitled to the allowances claimed, his case is liable to be dismissed, as lacking evidence to anchor the claims. Erudite counsel argued that, the promise from the Governor was mere political promise and that, the reliance on Exhibit C3 is of no avail, as the said exhibit lacks probationary status because, it was neither a private nor confidential document and, it was not certified, and as such, lacks probative value. Erudite counsel argued that, since the claimant failed to produce any document that made him entitled to the reliefs claimed, in line with Governor of Kogi State & Ors v. Ahmed & Ors (2019) LPELR-48367 (CA) the suit must be dismissed. Thus ended the defendant’s FWA. I move to summary of the claimant’s theory of the case.
B: Claimant’s Counter-Theory of the Case
Erudite C.I. ODO franked the claimant’s counter-theory of the case and formulated two issues, to wit:
a. Whether the Claimant has proved his case to be entitled to his claim. [sic]
b. Whether the Defendant has any defence to the Claimants [sic] claim howsoever. [sic]
The erudite counsel argued both issues together. Erudite counsel argued that, the claimant had proved that he served two tenures as councilor and proved too, by Exhibit C3 that, he was owed the reliefs claimed without any contradiction. Erudite counsel argued that, Exhibit C3 was stamped and dated by the defendant. Erudite counsel argued too that, the claimant proved he served pre-action notice on the defendant wherein he stated the money he was owed and asked for its payment, or else, he would go to court. He argued that, all these were not controverted and thus, the burden of proof on the claimant was satisfied while the duty to disprove it shifted on the defendant, and it failed. Erudite counsel cited Mario Jose Enterprises Ltd & Anor v. Dangado (2021) LPELR-53215 (CA) and, Order 15, Rule 1(1) of the NICN Rules to the effect that, DW1’s WSO is not competent because, DW1 signed it in his office when he was no longer in office and had no authority to sign for the defendant. Erudite counsel argued that, DW1 admitted he was not one of those who signed Exhibit C3 but confirmed that, those who signed it were staff of the defendant.
Erudite counsel argued that, because the DW1 admitted the staffers of the defendant signed Exhibit C3; this admission contradicts paragraphs 13 of the SD and 12 of the WSO that, the cheque was issued from the Paris Club. Erudite counsel also argued that, DW1 admitted pre-action notice was issued on the defendant, even though; it did not pass through his table. Erudite counsel argued that, because, the DW1 signed his WSO in his office, it was not deposed before the authorised person and, more so that, the DW1 had no written authority to even depose for the defendant, it is bad in law and cited S. 112 of the Evidence Act on the effect of affidavit deposed before non-authorised person. Erudite counsel also cited S. 13 of the Oaths Act on how to make oath and GTB Plc v. Abiodun (2007) LPELR-42551 (CA). Erudite counsel argued that, DW1 did not state in the WSO his position and relationship with the defendant and also, where he derived his information and argued that, these contradict S. 115(1) & (3)-(4) of the Evidence Act as confirmed in Jimoh v. Hon. Minister, Fedeal Capital Territory (2018) LPELR-46329 (SC) 10 and therefore, amount to hearsay. Thereafter, the erudite counsel replied the issues raised in the defendant’s FWA.
On the issue of statute-bar, the erudite counsel argued that, the document to construe is the defendant’s originating processes and, cited Elabanjo v. Dawodu (2006) 15 NWLR (Pt. 1001) 76 at 123 and Aghallah v. Chime (2009) 1 NWLR (Pt. 1122) 373 at 432, C-D, to the effect that, courts must examine all the paragraphs of the SF to determine if the action is statute-barred. The erudite counsel argued that, the defendant’s reliance on paragraph 3 of the SF to anchor its statute-bar is wrong, as it ought to have pleaded the dates in its SD and prove them and cited SBN Ltd v. Pan Atlantic Shipping and Transport Agency Ltd (1987) 1 NWLR (Pt. 49) 111 at lines 12-24 but failed in this respect by failing to state the date the cause of action arose.
Erudite counsel was of the view that, the cause of action herein arose 15th August 2018 when the defendant refused to pay the balance of the debts, whereas, the claimant instituted this action in 2018, which was transferred to this Court, which ordered the fling of fresh papers. By this, erudite counsel was of the view that, the case is not statute-barred. The erudite counsel thereafter moved to the issue of pre-action notice and cited Ntiero v. NPA (2008) 10 NWLR (Pt. 1094) 129, D-E; 142, A-B on the form a pre-action notice takes and urged the Court to hold that, Exhibit C5 substantially complied with the substance of pre-action notice. Thereafter, the erudite counsel addressed the question of the RMAFC as the only authority imbued with jurisdiction to make the allowances claimed.
Erudite counsel argued that, since the defendant voluntarily made Exhibit C3 admitting the debts in issue, the debts are therefore not in dispute. Erudite counsel submitted that, Governor of Kogi State & Ors v. Ahmed [supra], which the defendant relied upon, is not applicable in the instant case because, in Exhibit C3, the defendant owned up to the debts unlike the case cited, where no such document was produced. Erudite counsel submitted further that, the case dealt with issue of pension after the political appointees had left office but the instant case dealt with remunerations that ought to have been paid while the claimant was still in office, which has been acknowledged and part-paid. On the basis of the foregoing erudite counsel asked the Court to hold that, this case is distinguishable from Governor of Kogi State [supra].
Erudite counsel cited Ashakacem Plc v. Asharatul Mubashshurun Investment Ltd (2009) LPELR-46541 (SC) and S. 128(1) of the Evidence Act to the effect that, a document speaks for itself and, for that reason; its contents cannot be varied by oral or extraneous evidence. Erudite counsel cited Jukok Intl Ltd v. Diamond Bank Plc (2016) 6 NWLR (Pt. 1507) 55 at 111, C-D to the effect that, counsel arguments could not take the place of evidence. Finally, the erudite claimant’s counsel submitted that, the claimant proved his case, while the defendant failed to adduce any defence and signed off the claimant’s theory of the case. I move to summary of the defendant’s RPL.
C: The Defendant’s RPL
Erudite BONIFACE N. UGWU equally franked the defendant’s RPL. In reply to the issue that the DW1 had no authority to depose to the WSO, the erudite counsel replied that, being the Secretary of the defendant at the requisite time, he had the authority and cited Ozoinyi & Ors v. Oguama (2017) LPELR-43775 (CA). On the issue that the DW1 did not state his position in the WSO and that, the DW1 signed the WSO in his personal office instead before the Commissioner For Oaths, the counsel cited some authorities: Majekodunmi & Ors v. Ogunseye (2017) LPELR-42574 (CA); Splinters (Nig) Ltd & Anor v. Oasis Finance Ltd (2013) 18 NWLR (PT. 1385) 188 at 227 and Akpokemovo v. Aga (2004) 10 NWLR (Pt. 881) 394 on the distinction between affidavit and WSO and that, WSO only becomes evidence after the second oath at the adoption in court, notwithstanding whatever prior defect and so, could not be challenged after adoption.
Erudite counsel replied that, the claimant’s counsel misconstrued the evidence on record by saying the DW1 said they met with ALGON Chairman, when what he said was that, they met with the Governor in Enugu East LG and referred the Court to the XX on 20/10/2022. Erudite counsel also replied that, the DW1 never said those who signed Exhibit C3 acted on the instruction of the defendant and did not also confirm the claimant’s position or contradict paragraph 13 of his SD and 12 of the WSO and did not also confirm that, pre-action notice was issued on the defendant but that it did not pass through his table. The erudite defence counsel submitted that, this raised the issue of non-service of the said document, since it did not get to the table of the DW1 who was the Secretary at the material time. Erudite counsel replied that, S. 112 of the Evidence Act is only applicable to affidavits and not WSO and cited Majekodunmi [supra]. Erudite counsel submitted too that, pursuant to S. 13 of the Oaths Act, the WSO, which was sworn to before the Commissioner For Oaths and signed by the DW1, was properly deposed.
Erudite counsel argued that, what the DW1 said was that, the WSO was brought to him for signature and not that, he signed it in his office and that, the stamp and seal of the Commissioner for Oaths of this Court showed that, it was sworn before him. The erudite counsel argued that, the only logical inference to be drawn is that, the defence lawyer went to the DW1 and they both came together to the Commissioner For Oaths to swear the WSO with the photograph of the DW1 embossed and the seal and signature of the Commissioner for Oaths, which showed that, the WSO was regular. That is all that amounts to RPL and the end of summary of the FWAs.
Having done with summary of the processes, the next thing is the most important aspect of judgments: giving the court’s definitive decision to end the cause of action. There are prerequisites to meet before a court can proceed to give its decision. It must give assurances of satisfaction of some preliminary facts. I therefore proceed to do just that. I have carefully summarised all the pertinent processes, as could be seen above. I have also succinctly summarised the XX of witnesses but did not do the same with the WSOs because, they are carbon copies of the pleadings, which I have carefully summarised earlier on. But I shall make references to them where necessary because, they nonetheless constitute the evidence in the case.
I have also recalled the demeanours of the witnesses and, would make references to these where necessary. I have also carefully consulted some of the focal authorities cited by both sides and taken into cognisance the theories formulated by both sides. I have equally researched on further pertinent authorities in order to render a highly persuasive decision. I have also taken into consideration that the parties adopted the evidence in 8M for this 9M and rendered exactly the same FWAs. So, the decision shall be the same by virtue of the doctrine of stare decisis. With these assurances, I think I am home and dry to give my decision.
My decision shall be divided into two portions: Part A deals with the preliminary objections, while Part B deals with the substantive suit. There I go. And for this purpose, I adopt the issues formulated by the erudite defence counsel, which correspond with the two segments into which my decision is divided.
THE COURT’S DECISION AND RATIONES DECIDENDI
Part A: Decision on Objections to the Court’s Jurisdiction
Three grounds of objections to the Court’s jurisdiction were raised in the pleadings. The third ground pleaded, that is, the ground that, the writ was not signed, was abandoned, as it was not argued in the FWA and, it is accordingly dismissed – NICN/EN/8M/2019 – Hon. Chizoba v. Igbo-Etiti Local Government Council just delivered today the 11th May 2023[1], which is the test case for this suit. I equally found, just as in the test case that, this complaint was duly signed on the process at p. 58 of Process File on top of the name: C.I. Odo [Claimant’s counsel] at that same third paragraph in exactly the same manner as that of the test case. In any case, this is a transferred matter. Even if the writ filed in this Court was not signed, so far the original writ was signed, it cures the defect because, the writ filed here for formality sake, is a continuation of the original writ transferred from the State High Court to this Court; and it was duly signed by both the Registrar and C.I. Odo – see pp. 1&2 of the Process File. Relying on the test case: Chizoba v. Igbo-Etiti Local Government Council, the objection is accordingly dismissed. We go back to the two grounds argued in the FWA.
The first is that, the claimant did not issue pre-action notice and, the second is that; the suit is statute-barred. Relying on my decision in the test case: NICN/EN/8M/2019 – Hon. Chizoba v. Igbo-Etiti Local Government Council [supra] – the objection lacks merits because, it was not disputed that the pre-action notice was served on a named person and, the pleadings and evidence with regard to the pre-action notice were mutually inconsistent, by pleading admission and avoidance, which avoidance is untenable, as the form of the pre-action notice is in substantial compliance with the law and, at the same time, totally denying service. The objection is accordingly dismissed. I move to the objection on statute-bar. Relying on the same decision, whereby it was held that, ESAL was pleaded whereas, S. 136 of the ESLGL was argued and, the finding that, the particulars of the pleaded statute that bars the action were not fully pleaded in accordance with law, and the conclusion that the defendant is deemed to have waived the objection. The decision also held that, the S. 136 of the ESLGL, argued, is impari materia with S. 2(a) of the Public Officers [Protection] Act [POPA] and enjoins similar construction and, consequently, like the POPA, it is not applicable to contracts generally, including contracts of employment. Based on the foregoing, the objection is dismissed. In effect, all the preliminary objections to the Court’s jurisdiction are dismissed. I move to Part B: Decision on the substantive suit on the merits.
Part B: Decision on the Merits of the Substantive Suit
Part B answers issue 2 raised by the defendant. The first question to tackle therein is the claimant’s objection against the DW1’s WSO on the ground that, it was not signed before the Commissioner for Oaths, and as such, incurably bad. Relying on the same Chizoba v. Igbo-Etiti Local Government Council, which held that, the distinction between affidavit and WSO makes the issue of signing before the Commissioner for Oaths inapplicable to WSO because, WSO is made under the Oaths Act, which did not require signing before the Commissioner for Oath but only swearing before him/her. The decision also held that, the rules of this Court make it compulsory that, objection against defects in the WSO must be raised timeously and therefore, could not be a subject of XX, especially as the issue is extraneous to the pleadings. This is because, raising it at the FWA stage would prevent the claimant from correcting the error by re-filing another one thus, giving the objector a technical unearned victory by nullifying the claimant’s evidence on technical grounds.
And the prevention of such reliance on technicality was the very reason that informed the innovation of frontloading of evidence-in-chief by way of WSO. To allow it would mean the whole essence of frontloading, which is to prevent ambush, is defeated. The decision held that, once not raised at the appropriate time before taking further steps, the objection is deemed waived, is thus absolutely correct. As held in the test case: Chizoba v. Igbo-Etiti Local Government Council, the oath before the Court at the adoption of the WSO cures any prior defect in it. Following this authority and the others cited therein, this objection lacks merit and, it is accordingly dismissed. I move to the question whether the claimant proved his case, which is the real substantive question on the merits of this case; and answer it with emphatic no. Claimant did not prove his case at all!
I give my reasons based squarely on Chizoba v. Igbo-Etiti Local Government Council [supra]: the test case. They are twofold. First, the claimant did not sue the necessary and proper person in this action. His pleadings and evidence showed that, the Governor officially [or the Governor’s alter ego like Attorney-General or Enugu State] was the proper person to sue and the claimant only sued the defendant, who, at best, was a mere agent to a disclosed principal or who, in actual fact, lacks authority on the reliefs claimed, as disclosed in the claimant’s pleadings and evidence. The claimant has shown by logical implication that, unless the Governor approves the said entitlements for payment, the defendant cannot, on its own singlehandedly, pay them.
Why then sue the defendant alone instead of the Governor alone, or at most, jointly with the defendant? Since a court does not give order in vain, the absence of the proper defendant before the court is fatal to an action, which has been had on the merit. The implication is that, the case is liable to be dismissed for this reason alone on the basis of my reasoning in Chizoba v. Igbo-Etiti Local Government Council [supra], and I so hold. I move to the second reason. This is also based on the authority of Chizoba v. Igbo-Etiti Local Government Council [supra], which facts are 100% similar to those of this case. In that case, the Court found that, by virtue of S. 7(1) of the Constitution construed along with Paragraph 32(d) of Part I of the Third Schedule of the Constitution, it is only the RMAFC that is empowered to make provisions for the allowances of councilors in Nigeria.
The RMAFC having not made any such provisions, it is illegal to pay the claimant such allowances as are being claimed. By the doctrine of covering the field and constitutional supremacy, Paragraph 32(d) of Part I of the Third Schedule of the Constitution, having fully covered the field, any other law cannot cover the same field and, the claimant has not even cited any other law that covered such field and none has been discovered by the Court hence, regardless of any agreement, which was not proved in the instant case or any document produced, the payment of such reliefs, as being claimed or the reliefs themselves, are totally illegal and therefore, not grantable. Following Chizoba v. Igbo-Etiti Local Government Council [supra], the claimant is not entitled to the reliefs claimed. Issue 2 is therefore resolved in favour of the defendant and against the claimant. That ends the treatment of all the questions arising from issue 2 and Part B of this decision. The case must therefore end.
CONCLUSION
Having resolved issue 2, which touched the substantive merits of this suit against the claimant and in favour of the defendant, this suit is liable to be dismissed and, is accordingly dismissed as totally lacking in merits.
No cost is awarded. This decision is entered today, being Thursday the 11th day of May 2023 under my very hand, as the presiding judge.
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HON. JUSTICE Oluwakayode Ojo AROWOSEGBE
Presiding JUDGE
ENUGU DIVISION
NATIONAL INDUSTRIAL COURT OF NIGERIA