IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

 

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

 

DATE: FRIDAY MARCH 15, 2024                        

SUIT NO: NICN/EN/11M/2019

 

 

BETWEEN:

 

HON. ARUA GODWIN M.…………………………………..CLAIMANT

 

AND

 

IGBO-ETITI LOCAL GOVERNMENT AREA………….DEFENDANT

 

APPEARANCES:

1.                 BASIL OGBONNA NWALEM WITH THE BRIEF OF BONIFACE N. UGWU – FOR THE DEFENDANT.

2.                 NO REPRESENTATION FOR THE CLAIMANT.

 

JUDGMENT

INTRODUCTION

WRIT OF SUMMONS originally commenced this suit 23^rd October 2018 at the High Court Enugu State, Ogbede Division [P. 12 Process File]. The matter was subsequently transferred to this Court [Enrolled order at the cover page of the High Court file inset the NIC’s File]. Subsequently, Complaint was refiled at the NIC on 7^th January 2020. It was accompanied with Statement of Facts [SF]. The reliefs claimed in para 13 of the SF are reproduced as follows:

(a)                          A declaration that the Claimant is entitled to the outstanding sum of N3,490,560.00 being balance of what the Defendant owes the Claimant, as his severance benefit for the one term service as a Councilor, for Ukehe Ward 5.

(b)                          An order for the Defendant to pay the Claimant the sum of N3,490,560.00 being the balance of the money owed the Claimant.

 

Against the above, the defendant reacted by filing a Statement of Defence [SD] on 4^th March 2020. No Reply was filed. Thus, issues were joined on the SD. My next duty is summary of the pleadings. There I go.

 

SUMMARY OF THE PLEADINGS

A: Claimant’s Story

The claimant pleaded he was a former councilor representing Ukehe Ward 5 between January 8, 2014-January 4, 2016 and that, after his tenure, the defendant owed him outstanding Furniture and Severance Benefits of N1,236,000.00 and N2,400,000.00 = N3,636,000.00. He pleaded that the defendant had understanding with him and other political office holders that it would be paid later, and that; in November 2017, a joint meeting was held between him and other political office holders and the defendant, whereby the Enugu State Government directed the defendant’s account team to compile the list of indebtedness from 1999-2016 and, an internal memo was issued accordingly, on which his name appeared as No. 28. He pleaded that the Enugu State Government with the defendant’s consent made a part-payment of N145,440.00 from the joint account with the defendant; and thereafter, the defendant has failed to pay the balance by July 2018, as promised, in spite of repeated demands. He pleaded that, the defendant pleaded for more time to seek the directive of the Government of Enugu State but that, he should check back August 15, 2018, whereupon he briefed his lawyer to write the defendant.

He pleaded that the defendant failed to pay till date even after the letter from his lawyer, for which reason, he filed this action to recover his money. That being the end of the claimant’s story, I move to the defendant’s counter-story, as contained in its SD.

 

B: The Defendant’s Counter-Story

The defendant counterpleaded paras 1 & 4 of the SF that, it paid the claimant all his entitlements while in office and that; the law does not know the present claims. The defendant denied paras 5, 6 & 7 of the SF that, there was no such meeting and that; the defendant is independent while Enugu State Government did not have its consent to reach any agreement with the claimant or make any part-payment. The defendant pleaded that, the claimant and other of the same ilk paid the Governor of Enugu State a political visit while he was seeking for second term and pleaded with him, to pay them severance allowances denied them by the past administration and, the Governor made a political promise in the defendant’s absence. In reaction to paras 8-10 the SF, the defendant counterpleaded that it never made any promise to pay the claimant the unlawful claims nor pleaded with the claimant for more time to seek the consent of the State Government to pay the debt.

The defendant counterpleaded paras 11-12 that claimant served it with the pre-action notice. The defendant also counterpleaded that, it shall serve the claimant a Notice of Preliminary Objection [NPO] on grounds of non-legally defective pre-action notice, that the claimant and his lawyer did not sign the writ, the action was statute barred by virtue of the Action Law of Enugu State [ALES]. The defendant counterpleaded for dismissal of the suit and cost of N5M and ended the SD. There being no Reply filed: I move to summary of the proceedings before the Court.

    

SUMMARY OF PROCEEDINGS BEFORE THE COURT

It first came up before me on 22^nd October 2019 and the Court ordered the parties to refile their processes in compliance with the rules of this Court, and the case was thereafter adjourned. The Motion For Summary Judgment was withdrawn on 11^th November 2021 and, it was accordingly struck out while the 6 sister cases were divided into two sets for hearing on different dates: 11M-13M, being the First Set and, 14M-16M, being the Second Set. And the cases were subsequently adjourned. The case came up next on 7^th July 2022 and it was opened.

The claimant testified as CW1 for himself and adopted his WSO made 7^th January 2020. The learned claimant’s counsel applied to correct the typo 0000999 on document number 2 on the list of documents to 000103 and the application was granted unopposed. Exhibits C1 & C2 were admitted without objection, while Exhibit C3 was admitted against objection. Thereafter, the claimant closed his evidence-in-chief and, the case was adjourned for Cross-Examination [XX]. It came up on 22^nd March 2023 for XX. Under XX, CW1 said it was not true that he was paid all his entitlements and that, the defendant is owing him furniture and severance allowances of N6,108,000 and that, the evidence of the indebtedness was 4% part-payment paid in 2017, the WSO and the memo prepared by the defendant. CW1 said ALGON and F&G convened a meeting to which the creditor councillors were invited in which the list of indebtedness was compiled and the 4% paid.

To the question whether the Chairman of the LG approved the said memo, the CW1 answered that, before the list was compiled, a meeting was held between the LG, to which they creditors were invited orally and, the State Government, and that the Governor directed the LG Chairmen to defray the indebtedness being that, the State had joint account with the LG and that, his fellow councillors invited him. CW1 admitted his tenure ended in 2016 while the pre-action notice was issued in 2018. To the question that his certificate of return did not authorise the entitlements claimed, CW1 said it was a well-known fact that, even the governor’s certificate of return also did not list out the governor’s entitlement. To the question that CW1 had no official instrument showing that he had a right to the entitlements in issue, CW1 said his certificate of return was the instrument. There ended the XX and the claimant closed his case without re-examination. Thereafter, the learned claimant’s counsel told the Court that they [both counsel] have agreed to use this case as a test case for the other two cases in the set – P. 19 of the Record of Proceedings of March 22, 2023 under Re-examination. Thereafter, the case was adjourned to the following day 23^rd March 2023 for defence.

Dr. Moses Agudiegwu testified for the defence as DW1. DW1 adopted his WSO filed 4^th March 2020 and was submitted for XX. Under XX, DW1 denied that he was not around when the WSO was drafted for him. Asked whether he accompanied his lawyer to Court when the WSO was filed, he said, he was not sure but that, he was only informed about the matter as former Secretary of the LG from March 2016-March 2020, which is why he was in Court. He admitted that those that signed Exhibit C3 were the defendant’s staff and that; the stamp was authentic. He said he served as councilor from 1999-2002. He said it was not true that it was written on Exhibit C3 that the claimants were owed outstanding allowances because; the document was contradictory, as the numbers of councillors therein were more than the 20 the LG had. He said they were told as councilors that they were entitled to severance benefits but that they had not seen the law backing this up.

DW1 admitted that State Government asked them to compile the list of indebtedness and that; he was in the joint meeting of the creditor councilors with the defendant and the State Government in 2017. He said the State Government gave this promise because; it felt they councilors were not supporting the new government because of protests on this issue. He denied that the 4% was part-payment but just Xmas Gift, as they were orally told and that, the cheques did not indicate any percentage. He said but they promised to mediate the issue later, if there were genuine complaints but that the State Government never called back. He ended by saying, he only saw it as a political statement. He said he would not know if the list was compiled after the meeting because, they were invited zone by zone. He said he was aware that the claimant served pre-action notice, being the Secretary of the LG but would not know if the defendant replied it, as he was not the defendant’s solicitor.

DW1 said, as secretary, all correspondences with the defendant passed through the Chairman and he sent to him only the ones he wanted him to see. He admitted that those who signed Exhibit C3 were staff of the defendant but would not know if they signed with knowledge of the Chairman. The XX was closed after few more irrelevant questions without re-examination and the defence was closed. Thereafter, the case was adjourned for adoption of Final Written Addresses [FWAs]. The matter came up on 22^nd February 2024 and after confirming from the Court’s clerk: Mr Athony Ugwu that there was adequate service of adoption date on the learned claimant’s counsel yet, he did not appear in Court and without any excuse, the Court invoked the rules to deem the claimant’s FWA as adopted in absentia and allowed the defendant’s learned counsel to go on with his adoption. BASIL OGBONNA NWALEM adopted the defendant’s FWA and the Reply on Points of Law [RPL] and urged the Court to dismiss the case. The case was thereafter adjourned to 18^th April 2024 for judgment.

That being the end of the summary of the proceedings, the next thing is my summary of the FWAs. There I go.

 

SUMMARY OF THE PARTIES’ THEORIES OF THE CASE

Learned BONIFACE N. UGWU franked the defendant’s theory of the case and submitted two issues for the determination of the case, to wit:

(a)                         Whether the National Industrial Court has jurisdiction to determine the suit taking into consideration the claimant’s claim and evidence before the court. [sic]

(b)                         Whether the claimant proved his case with credible evidence beyond all shadow of doubt to be entitled his [sic] claim claimant [sic] taking into consideration the claimant’s claim and evidence before the court?

 

Arguing issue 1, which deals with the jurisdiction of the Court, the learned counsel cited Madukolu v. Nkemdilim (1962) 2 SCNLR on the conditions precedent to the assumption of jurisdiction and argued that because, the claimant did not issue pre-action notice, he failed to meet a condition precedent. The learned counsel also argued that, the suit is statute barred, having being filed 7^th January 2020, whereas, the claimant’s second tenure, according to para 3 of the SF, expired 4^th January 2016, thus, the suit was statute barred by virtue of S. 136 of the Local Government Law [LGL], which provides six months next the cause of action for the institution of suits against the defendant. The learned counsel cited Mobil Prod. Nig. Unltd v. LASEPA (2002) 18 NWLR (supra), though not cited before now. The learned counsel argued that, the Court is bound to consider the issue of pre-action notice, even though, outside the pleadings of the claimant as a matter of privilege conferred on the defendant, which constituted condition precedent. The learned counsel submitted that, once issue of jurisdiction is raised, it must be thrashed out before the Court could proceed further and, cited Madukolu v. Nkemdilim [supra].

The learned counsel argued that the question of necessity of pre-action notice is determined by the state of pleadings and only when raised in the pleadings would it become necessary to inquire into the question whether it was waived or not whereas, the statute of limitation could not be waived at any time. The learned counsel argued that, however, pre-action notice is applicable to actions founded on contract and cited Ntiero v. NPA (2008) 5-6 SC (Pt. II) 1 at 10. The learned counsel cited S. 137 of the LGL as providing for pre-action notice and submitted that, no pre-action notice, as spelt out therein, was served in the instant case and cited Igrude v. Ecobank Ltd & Ors (2018) LPELR-45563 CA to the effect that, the requirements of pre-action notice as prescribed is not met by ordinary letter but must be strictly complied with. On the basis of the foregoing, the learned defence counsel urged the Court to dismiss the action and moved to issue 2.

Issue 2 deals with whether the claimant proved his case. The learned counsel cited SS 131 & 143 of the Evidence Act to the effect that the claimant had the burden of proof and must also succeed on the strength of his case and not on the weakness of the defence and cited Mini Lodge Ltd & Anor v. Ngei & Anor (2009) 18 NWLR (Pt. 1173) 254. The learned counsel submitted that, because of these, the Court must first consider the claimant’s case as pleaded and proved to determine if he proved the burden placed on him and cited S. 133(2) of the Evidence Act and Ebgue v. Egbue (2013) LPELR-22512 (CA). The learned counsel argued that the LGL did not make any provision for benefits, including severance benefits for councilors. He argued too that, the Revenue Mobilisation, Allocation and Fiscal Commission [RMAFC], which the Constitution gives the duty to provide for the benefits of the claimant as councilor did not also provide for severance allowance and cited Omokolo & Ors v. RMAFC & Ors (2017) LPELR-44034 CA and also, SS. 7(1), 8, 84, 111, 124(1)&(4) of the Constitution and Para 32(d) of Part I of the Third Schedule of the Constitution, to effect that, the combined effect is that the House of Assembly makes provisions for the remunerations of the persons listed in S. 124(4) of the Constitution, but which shall not exceed the ceiling given by the RMAFC.  

The learned counsel submitted that, by a combination construction of S. 7(1) and Item 32(d) of Part 1 of the Third Schedule of the Constitution, S. Item 32(d) override S. 7(1) and makes the RMAFC the sole authority to prescribe the remuneration of the councilors of the LG and that, no law needs be passed by the House of Assembly for it to become effective; as it is operative by the force of the Constitution. The learned counsel cited AG Abia State v. AGF (2002) 6 NWLR (Pt. 763) 264 at 422 and Action Congress v. Osun State Independent Electoral Commission (2009) 12 NWLR (Pt. 1155) 223, 244-246. The learned counsel submitted that, the claimant did not submit to the Court any document where the House Assembly recommended the amounts to be paid. The learned counsel submitted that, since the claimant failed to tender any document from the RMAFC that prescribed the remunerations in question, the claimant was not entitled to his claims.

The learned counsel argued too that, the claimant did not also show how he arrived at the figures claimed, as the Chairman did not sign the only document tendered and as such, the Court could not engage in speculation. The learned counsel submitted that as such, Exhibit C3 is of no moment. The learned counsel also submitted that, the meeting held with the Governor was inchoate and that; the Exhibit C3 that purportedly emanated from it was not certified as a public document and as such, lacks probative values. The learned counsel cited Governor of Kogi & Ors v. Ahmed & Ors (2019) LPELR-48367 (CA) to the effect that the reliefs claimed are illegal. Thus the FWA came to an end with exhortation to the Court to dismiss the case and award N1M cost against the claimant. I move to the claimant’s theory of the case.

 

B: Claimant’s Counsel Theory of the Case

Learned C.I. ODO franked the claimant’s theory of the case as formulated in his FWA. The erudite counsel submitted two issues:

a.                            Whether the Claimant has proved his case to be entitled to his claim. [sic]

b.                            Whether the Defendant has any defence to the Claimant’s claim howsoever. [sic]

 

Learned counsel argued the two issues together and started by submitting that, the claimant tendered his certificate of return as councilor and Exhibit C3, a memo showing the defendant’s indebtedness to the claimant and also served on the defendant a pre-action notice and submitted that; all these were not controverted. He submitted that thus, the claimant sufficiently proved his case – Mario Jose Enterprises Ltd & Anor v. Dangodo (2021) LPELR-53215 (CA). The learned counsel now turned to attack the DW1’s WSO as incompetent by reasons that he did not swear it before the Commissioner for Oaths and that, the WSO established no nexus with the defendant and, cited S. 115(1)-(4) of the Evidence Act; Jimoh v. Hon. Minister Federal Capital Teritory (2018) LPELR-46329 (SC) 10 and Abubakar v. INEC (2022) 8 NWLR (Pt. 1833) 463, 477, B-C.

The learned counsel also submitted that, since the DW1 admitted that he was serving as Secretary at the time the cause of action arose, he was a busybody and cited S. 38 of the Evidence Act and Bakut & Anor v. Ishaku & Ors (2015) LPELR-41858 (CA) on hearsay. The learned counsel argued that, even at that, DW1 admitted that the persons who signed the Exhibit C3 were staff of the defendant, and that this showed the defendant owed the claimant. The learned counsel also argued that, the DW1 admitted the receipt of the pre-action notice and that, Exhibit C4, the pre-action notice served on the defendant 27^th August 2018 is sufficient pre-action notice. The learned counsel cited Matjon (Nig) & Anor v. Nasarawa State Government & Ors (2021) LPELR-54191 (CA) and Ntiero v. NPA (2008) 10 NWLR (Pt. 1094) 129, D-E; 142, A-B on the nature and purpose of pre-action notice.  The learned counsel thereafter urged the Court to hold that the defendant was served with pre-action notice. Thereafter, the learned counsel moved to address the issue of lack of jurisdiction on the part of the Court raised by the learned defence counsel.

On the point that the case is statute barred, the learned counsel submitted that, the defence has failed to plead the material facts to determine that the action is statute barred, as the date of the accrual of the cause of action was not stated and cited SBN Ltd v. Pan Atlantic Shipping and Transport Agency Ltd (1987) 1 NWLR (Pt. 49) 111, lines 12-24. The learned counsel argued that, the cause of action arose August 15, 2018 when the defendant refused to pay the balance of the debt; and submitted that, the mere fact that this Court subsequently ordered the claimant to re-file his originating processes could not extend the original date the action was filed at the High Court. The learned therefore concluded that the case was not statute barred. The erudite counsel thereafter moved to the question of RMAFC being the only body that could make remunerations for the claimant.

The learned counsel argued that, in as much as the defendant made the list of the claimant’s entitlement in Exhibit C3, it is estopped from relying on the RMAFC being the only body that could make remunerations for the claimant. Learned counsel cited Ochigbo v. Simon (2022) LPELR-57894 (CA) to the effect that, documents speak for themselves. The learned counsel argued that, the case of Governor of Kogi State & Ors v. Ahmed & Ors is not relevant to the facts of this case. Erudite counsel submitted that the case was based on the fact that, there was no instrument produced to anchor the claims but that, in the instant case, the claimant tendered Exhibit C3, in which the defendant admitted indebtedness and that, in the case, the issue was pension and in this, the issue is entitlement while in office, which the defendant acknowledged by part-payment. The learned counsel submitted that, oral evidence could not vary Exhibit C3 and cited Bongo v. Governor of Adamawa State (2013) 2 NWLR (Pt. 139) 403 at 444 while arguments of counsel cannot substitute lack of evidence. On this, the learned counsel cited Jukok Int’l Ltd v. Diamond Bank Plc (2016) 6 NWLR (Pt. 1507) 55 at 111.  The learned counsel therefore urged the Court to come to the conclusion that Governor of Kogi State is irrelevant.

The learned counsel thereafter cited Okechukwu S. & Ors v. Obingwa LGC delivered by the Owerri Division of this Court March 6, 2023 and Mato & Ors v. Jigawa State Government & Ors delivered by the Kano Division of this Court, both which gave judgments to the claimants on similar issues and urged the Court to follow these authorities and not to accede to the defendant’s reliance on technicality to escape its liabilities. Thus ended the claimant’s theory of the case. I move to the defendant’s Reply on Points of Law [RPL] to the claimant’s FWA.

 

C: Reply on Points of Law [RPL]

The learned counsel cited S. 138 of the LGL to the effect that, the purported pre-action notice [Exhibit C5] must be served on the Secretary and not the Chairman and cited paras. 11&12 of the SF&WSO; Ozoinyi & Ors v. Oguama (2017) LPELR-43775 (CA) on the meaning of Secretary. The learned counsel replied to the argument that, the DW1 was a busybody by saying, this is not correct because, he was the Secretary when the pre-action notice was served. The learned counsel cited Majekodunmi & Ors v. Ogunseye (2017) LPELR-42574 (CA) 44-45, D-C on the distinction between WSO and affidavit and that, the adoption on oath cured any defect in DW1’s WSO. The learned counsel replied that, S. 112 of the Evidence Act is inapplicable because, it only referred to affidavit and not WSO and whereas, the DW1 made the WSO pursuant to the Oaths Act and made it before the Commissioner of Oaths because, it has DW1’s signature and that of the Commissioner of Oaths.

The learned counsel replied that the defence clearly gave the date of accrual of the cause of action as 4^th January 2016 when the claimant’s tenure lapsed and referred to paras 19(a)-(c) of the SD. That ends summary of all that I considered to be RPL. That being the end of summary of the FWAs, I move to give my decision.

But before then, I wish to state categorically that, I have carefully read all the germane processes as is evident in my summaries above. I have also noted the focal authorities cited and read additional authorities, as a result of my personal researches, that would be of assistance to me in coming up with a sound decision. I know that I did not summarise the WSOs as they are stark repetitions of the pleadings, but nonetheless, I have carefully read them and will make references to them, if occasions demand. Nevertheless, I have carefully summarised the XXs and taken note of the demeanours of the witnesses. Off to my decision I go.

 

COURT’S DECISION AND THE REASONS FOR THE DECISION

I shall decide this case based on the two issues formulated by the learned defence counsel because, they captured the facts of this case and the issues arising more accurately than those of the learned claimant’s counsel, but still will shun them of their verbosity. They are:

1.     Does the case suffer any jurisdictional point?

2.     Did the claimant prove his case?

 

Under issue 1, which is threshold, the learned defence-counsel raised two jurisdictional points on the grounds of failure to issue pre-action notice in accordance with law and that, the suit was statute barred. The learned counsel merely pleaded in para 19 of the SF that: “no pre-action notice was served on the defendant in tandem with the provisions of the law.” Which law and which provisions of that law, it did not mention. This is against the abolition of demurrer by Order 30, Rules 8(1)-(2) of the NIC Rules, which says, any procedural objection must be clearly pleaded and particularised to enjoy cognisance by the Court and, these rules have been upheld in Sulgrave Holdings Inc. v. Federal Government of Nigeria & Ors (2012) LPELR-15520 (SC) 29, C-F; Folarin v. Agusto (2023) 11 NWLR (Pt. 1896) (SC) 559 at 586; INEC v. NNPP (2023) 12 NWLR (Pt. 1899) 431 at 451-454 and, the very recent Court of Appeal’s decision in vires, in which the two preceding cases were cited with approval: Yobe Judicial Service Commission v. Auta[1]. The failure of the defence to specifically plead why and how the claimant’s pre-action notice did not meet the prescription of the law is therefore fatal to the objection as it did not meet the requirements of the above rules and authorities and therefore, deemed waived.

Besides, I cite Nwobodo v. Okolie (2020) LPELR-51267 (CA) 52, C-E to the effect that, the service of the said pre-action notice on Edugwo Celestine, whom the defence did not deny was their staff, was effective service on the appropriate officer of the defendant, through the said Edugwu Celestine, as the law did not say, it must be served personally on the officer concerned but that, it be served on him, and this is effective via staff on an officer in his office or the Secretary. And what is more, the Secretary confirmed that the pre-action notice was actually served but would not know whether the defendant replied it – the tail of p.27 thereof and the beginning of p. 28 of the Proceedings File. Lastly, what the defendant pleaded is that: “the defendant shall file and serve a Notice of Preliminary Objection challenging the competence of this suit on the grounds that: a. That no pre-action notice was served on the Defendant in tandem with the provisions of the law…” and not that, it shall canvass the objection in the FWA.

Having failed to bring up the issue by issuing Notice of Preliminary Objection [NPO] in limine as pleaded, the objection is deemed waived by virtue of Order 5, Rule 2(1) of the NIC Rules. The defendant cannot begin to blow hot and cold on an issue it has abandoned: equity will not allow that - SCOA Nigeria Plc v. TAAN & Ors (2018) LPELR-44545 (CA) 56, A-E, SS. 13-15 of the National Industrial Court Act [NICA] and, 169 of the Evidence Act, on application of estoppel by conduct, which implicated in the present case. Having allowed the claimant to prosecute the case on the merit to conclusion, the defendant cannot be allowed to resile and spring a surprise on the claimant by resuscitating the issue of pre-action notice he had abandoned. And lastly, on the pre-action notice, the issue of its form raised, is non sequitur. There is nothing esoteric about the nature and contents of pre-action notice. It does not have to be in a particular form. Mere letter satisfies the form, once it contains the cause of action and the defendant’s nexus to cause of action, the complainant’s name and address or, that of his lawyer, which the extant pre-action notice satisfied. I therefore fully agree with the learned claimant’s counsel on Ntiero v. NPA (2008) 10 NWLR (Pt. 1094) 129, D-E; 142, A-B on the form of pre-action notice. In that case, the objection on pre-action notice is hereby dismissed as lacking in merits. I move to examine the question of the action being statute barred.

Let me state first that it is only issue of lack of substantive jurisdiction under S. 254C of the Constitution, with regard to the NIC, that could be raised at any time and anyhow and that, all other objections, including those on limitation of actions are procedural and could be waived, and must therefore be raised timeously to enjoy the benefits of being entertained, especially where demurrer has been abolished. I cite once again the array of earlier cited authorities: Order 30, Rules 8(1)-(2) of the NIC Rules; Sulgrave Holdings Inc. v. Federal Government of Nigeria & Ors; Folarin v. Agusto; INEC v. NNPP and, Yobe Judicial Service Commission v. Auta to the effect that, for a limitation statute to bar an action, it must be specifically pleaded and particularised to enjoy the blessing of being entertained by the NIC, the NIC having outlawed demurrer. Failure in this respect is fatal to the objection. Another this is that, the claimant pleaded the ALES but argued LGL. That is a classic case of taking the other side by surprise, also contrary to the authorities cited above. The objection on statute of limitation is therefore deemed waived. Besides, the defence had pleaded in para 19(c) of the SD that, it would file NPO to bring up in limine the question of limitation statute, but abandoned it and, the case was heard on the merit. It cannot resile and go back to it as an ambush in the FWA as it cannot be allowed to blow hot and cold on the issue – SCOA Nigeria Plc v. TAAN & Ors [supra] and SS. 13 & 15 of the NICA and 169 of the Evidence Act [supra]. The objection is therefore is not well anchored in law and is liable to be dismissed and, it is accordingly hereby dismissed.

The third point of objection raised about not signing the writ was not canvassed in the FWA and is therefore deemed deliberately abandoned and, it is therefore accordingly struck out of the SF. I have cleared all grounds of jurisdictional objections against the suit. I shall now move to examine issue 2, which deals with the merits of the suit.

Under issue 2, the first point I shall examine is the attack against the DW1’s WSO, raised by the learned claimant’s counsel as a point of XX and an issue in the FWA. I hold the view that objections against the admissibility of evidence must be raised at the point in which the evidence was to be led or in which the document was to be tendered and not, at the FWA stage. If not raised at that stage, it is deemed abandoned and cannot be made a point of XX. XX is limited to the pleadings of the parties – Isheno v. Julius Berger (Nig) Plc (2008) LPELR-1544 (SC), where the SC held that, relevance determines the limit of XX and, relevancy is a product of the pleadings and issues joined. Issues were not joined on the defects in the WSO but on the facts pleaded, by which the case was to be proved. Therefore, for a party to lawfully make XX out of defects in the WSO, such a party must show that, this issue was pleaded to enjoy the plenitude of XX on it. Once not pleaded, as in the instant case, it becomes a matter of procedural objection that must be raised timeously and not in demurrer at the FWA stage, to enjoy the blessing of the Court – Order 5, Rule 2 & Order 30, Rules 8(1)&(2) of the NIC Rules. Thus, the XX on the alleged defects on the DW1’s WSO and, the FWA on that point, are both misplaced irrelevancies and, are ambushes. The laws of frontloading and abolition of demurer forbid both.

This brings to the fore the distinction between affidavit and WSO made pursuant to two different laws. The conflation of WSO with affidavit started after the Supreme Court’s decision in Buhari v. INEC & Ors (2008) LPELR-814 (SC) 88-101, A; 261, D-E, upon which all the subsequent decisions of the Court of Appeal holding that, defects in the WSO of not being personally sworn before Commissioner of Oath, is fatal, were based. And incidentally Buhari v. INEC did not construe the provisions of the Oaths Act, under which the WSOs in this case were made. That is why perhaps, there have been conflicting decisions on this point from the Court of Appeal. Buhari v. INEC actually construed the provisions of the Election Petition Practice Direction, SS. 83 of the Evidence Act and 19 of the Notaries Public Act and, not the rules of the NIC or the Oaths Act. To these extents, the authorities based on Buhari v. INEC are not good authorities for WSOs made under the NIC Rules, the NICA and, the Oaths Act.

So, those cases holding that defects in WSOs are fatal are distinguishable and are accordingly hereby distinguished. Thus, the Evidence Act is inapplicable to WSOs made in the NIC, not having been made pursuant to the Evidence Act. And if it is found that, the Evidence Act is applicable by any means, S. 12(2)(b) of the NICA, as validated in Adegboyu v. UBA[2], allows this Court to depart from the Evidence Act in the interest of substantive justice. I do not see that the laying of ambush, which if allowed, makes the situation worse than it was before the introduction of frontloading, which whole essence was to eschew ambushes and fencing games as the rule of practice in courts, would not amount to unwittingly allowing the claimant to score a technical victory over the defendant by shutting the defendant out of the defence on the merits by making its WSO nugatory at the FWA stage: a classical ambush without remedy, which makes nonsense of the innovation of frontloading. Equity cannot allow this absurd unintended consequence – SS. 13 & 15 of the NICA. Once, the WSO was adopted without protest in Court, it cannot be a matter of XX for the purposes of laying ambushes to be made bare in the FWA. The adoption through the second oath before the Court cures the alleged defect. After all, an affidavit does not need a second oath before the court to be potent. The second oath on a WSO supplies its potency and not the first. So, the second oath before the court is what counts for a WSO. Therefore, by all means affidavit cannot be equated with WSO.

Besides, I rely on the previous decision of this Court on similar issue where the questions of how defect in WSO should be treated and how conflicting decisions of the Court of Appeal in situations like this should be handled. This Court frontally addressed these issues in Chozoba v. Igbo-Etiti Local Government Council, which cited NICN/EN/759/2014: Arinze Okeke v. Arab Contractors OAO Ltd [Delivered May 21, 2021][3] p. 19-29, especially 22 and 24 with approval:

“Arising from the above, it is my humble, but considered opinion, that; it should not matter if the first oath is defective. It should be open to the Court to allow the witness adopt it simply as written statement adopted on oath, akin to the previous position before the advent of frontloading, whereby the witness gives his evidence orally on oath, since it has satisfied essentially the purpose of frontloading, which is to give advance notice of the proposed evidence to the other side. I think that is the cumulative implication of Order 1, Rule 9(3); Order 3, Rules 9(c) and 21(1)&(2); Order 5, Rules 4(1)(a) & 6(3) of the NICN Rules. So, the second oath in the Court should, in conjunction with the above-cited provisions of the NICN Rules alongside S. 4(2)&(3) of the Oaths Act, cure any defect inherent in the first oath. To hold otherwise is to say the second oath, administered under the direct auspices of the judge, has no relevance, but that administered before registry officer – see Enyi v. Prodeco International Limited (2018) LPELR-44690 (CA) 4-14, F-D. – P. 22.

The only mandatory requirements imposed under the Oaths Act are that: the place and date the oath was taken before a commissioner for oaths must be clearly stated – S. 6 of the Oaths Act. Only affidavits are required to be signed in the presence of commissioner for oaths, by virtue of S. 117(4) of the Evidence Act. Apart from construing different statutes and rules of court, it is in this respect that, Kaan’s case [supra] must be preferred to Ogeh’s case [supra] heavily relied on by the defence. Both cases are clearly conflicting cases from the Court of Appeal on the issue of how to treat written statements on oath not signed before commissioner for oaths. I found that, though, Ogeh’s case is the latter, but that, it did not take cognisance of kaan’s case, an earlier contrary decision of the Court of Appeal on the same issue. I take refuge in the decision of the Court of Appeal in Ngun v. Mobil Producing Nigeria Unlimited (2019) LPELR-20197 (CA) 31-32, F-A, which relied on the Supreme Court case of Osakwe v. F.C.E. (Technical) Asaba, where the law on how to decide which to follow between two conflicting precedents was stated, in deciding which to choose between these two conflicting precedents of the Court of Appeal:

‘Where there is no discernable ratio decidendi common to the decisions of a superior court and this Court has handed down conflicting decisions, the lower Court or a Court of co-ordinate jurisdiction is free to choose between the decisions which appear to it to be correct…’ – [P. 23 Arinze Okeke’s case].

Based on the above and the fuller reasons given in the authority, I hold that, the objection against the DW1’s WSO on the ground of not been signed or sworn before the Commissioner for Oaths is nonstarter. This is because, raising the objection at the FWA stage would prevent the claimant from correcting the error by re-filing a corrected version thus, giving the objector a technical unearned victory, the prevention of which was the reason that informed the innovation of frontloading of evidence-in-chief by way of WSO in the first place. It would have meant that, the attempt to solve one simple problem has led to the imposition of a more pernicious problem: a monstrous absurdity at that! That could not have been the intendment of the innovation of frontloading.” – [P. 19 Chizoba’s case]

 

Arising from the above, I dismiss the objection on the ground of defective WSO and accordingly cognisance DW1’s WSO. I now examine the question of lack of nexus raised against the DW1’s WSO and the defendant. XX is part of the evidence of a party in a suit, provided it is relevant, and so, the relevant answers elicited during XX becomes part of the evidence of a party in a case. The DW1 was cross-examined on his nexus to the cause of action and to the defendant and he gave good account of himself as a former Secretary of the defendant and, as a former Councilor of the defendant too; and I observed his demeanour and found that, he was speaking the truth. He gave further cogent evidence to show that, he was abreast of the issues at stake, and I found that he was even more abreast than the claimant himself.

He gave evidence that he was a participant in the meeting that the claimant based the main fulcrum of his case. The claimant even relied on his evidence to prove service of the pre-action notice and cannot be heard to jettison part of his evidence that is against him. These are the sort of situation where S. 12(2)(b) of the NICA comes handy and, it is accordingly invoked to cognisance the DW1’s answers under XX on his nexus to the cause of action and the defendant. And he is a competent witness notwithstanding that he was no longer an officer of the defendant. In that case, all the objections against the DW1’s evidence are hereby dismissed. I now examine the real merits of the case; and my first port of call is: whether the claimant, looking at his case alone, without going into the defence, actually proved his case?

In this, I share the view of the learned defence counsel that, in a case like this, which is declaratory, the Court must first examine to see if the claimant sufficiently pleaded and proved his case. The learned defence counsel cited S. 133(2) of the Evidence Act and Egbue v. Egbue to buttress his point. I do not have any reason to disagree with him on this point. That is a correct statement of the law and; in line with the binding precedent, I shall now embark on the duty of examining if the claimant sufficiently pleaded and proved his case. The claimant pleaded that he was a councilor and that; the defendant did not pay his terminal benefits and furniture allowance. No doubt, the claimant held a statutory office and, his claim was for liquidated money demand: debt, a species of special damages.

The Court of Appeal stated how to plead and prove indebtedness in Jalbat Ventures Nigeria Ltd & Anor v. Unity Bank Plc (2016) LPELR-41625 (CA) to the effect that, the party must plead and prove exactly how the principal accrued or was arrived at, how the balance was arrived at from the base or principal sum, the amount paid and the balance. The case actually examined bank’s claim of indebtedness against a customer on the basis of the customer’s account with it, but the ratio remains good for any type of debt; and it is to the effect that, particulars of how the debts were arrived at must be given to induce belief. This must be so because, the breaches alleged to have given rise to the pecuniary claims herein are in the nature of special damages, which must be particularised and proved strictly – Michael v. Access Bank of Nigeria Plc (41981 (CA). Hence, in the instant case, since the claimant is claiming statutory allowances, he must plead and prove how he arrived at the principal sum, the amount paid and the balance. Any defect, especially with regard to the first [how he arrived at the principal sum] is fatal to his case.

It simply means, in a statutory office, the claimant must plead and prove the instrument that gave him a right to the allowances being claimed, how to arrive at the principal sum i.e., whether it is a percentage of the annual salary or a lump sum, and the amount paid, who paid it and by what means and, the balance remaining unpaid. It is from these that his right will crystalise. In the instant case, the claimant failed woefully to plead and prove the statute or instrument that gave him a right to furniture and severance allowances in the defendant or even, the contractual instrument thereto. He also failed to prove that the defendant actually paid what he called part-payment, as there is nothing to show that the defendant did. The alleged cheque issued was not shown to have been issued in respect of any debt or to have emanated from the defendant. Therefore, it is not feasible to even examine Exhibit 3, the alleged compilation of the purported balance of the indebtedness, when the debt itself is not established in the first instance.

The learned claimant’s counsel has cited two cases from this Court whereby, according to him, in similar circumstances, this Court gave judgments to the claimants. I have checked up the two cases on the NIC’s official website[4] repository for its judgments and found that; the first, from Owerri Division of the Court, was undefended, while the second, from the Kano Division of the Court, was a consent judgment, meaning that, it too, was undefended. For these reasons, the Court did not have the benefits of the FWAs of both sides; unlike in the instant case, whereby the case was keenly contested by both sides with FWAs filed by both sides to crystalise the positions of law from opposing angles thus, giving a better assistance to the Court. And in any case, the circumstances of the cases were not the same. Relevant instruments were tendered in the first, showing the existence of the debts, while the second was a consent judgment, negating the need to prove. From the foregoing, it is clear that both cases are distinguishable and are accordingly hereby distinguished.

The suit also suffers from the dearth of necessary and proper party. The claimant’s pleading and evidence-in-chief and under XX showed clearly that the Governor or State Government is the proper party in the case, because, according to the claimant, he it was that controlled the joint account from which the money being claimed could be paid and, he it was who made the part-payment from the joint account and, gave the directive for the purported list of indebtedness to be drawn up, yet, the claimant abandoned the disclosed principal with whom he had allegedly been negotiating and went to sue the defendant, the agent, alone, who did not feature at all during the alleged negotiation. How could that be: it defiles common sense, logic and law! And it is clear by S. 7(1) of the Constitution that, the defendant is an independent body with juristic personality, as the third tier of government in Nigeria, different from the State Government.

With this state of pleadings and evidence, there is no way a judgment in this case could be enforced against the Governor or the defendant [agent], were it given in favour of the claimant because, you cannot enforce a judgment against a non-party or, against the agent of a disclosed principal – Umarco Nigeria Plc v. Ofeelly Agro-Farms & Equipment Company Ltd & Anor (2016) LPELR-41550 (CA) 30-31, E-A; Malittafi v. Modomawa & Anor. (2016) LPELR-40775 (CA) 26-28, B-E and, Ibrahim v. Musa (2019) LPELR-47757 (CA) 18-21, D-F.

The claimant did not sue the Governor of Enugu State or Enugu State or the AG of Enugu State, but sued only the agent of a disclosed principal as the sole party. By this dint, the defendant is not a proper party. It is significant to note that, the claimant pleaded and gave evidence that he actually negotiated with the Governor and that, the Governor held the ace in this case. Therefore the claimant could not claim ignorance of the Governor as the proper party in this suit. His failure to bring the proper party to the Court is therefore fatal. The case having been heard on the merits to conclusion without the proper party placed before the Court is liable to be dismissed, as disclosing no reasonable cause of action. That was the decision reached in Malittafi v. Modomawa & Anor and Ibrahim v. Musa [supra]. That is that about the claimant not proving his case. Let us now examine the defence.

The defence has pleaded non-liability because, the alleged debt, even if true, which it claimed it was not true, is not grantable because, it is illegal. The defence cited S. 7(1) of the Constitution and argued that, when construed with Paragraph 32(d) of Part 1 of the Third Schedule of the Constitution, does not empower the LGC or Enugu State Government to make allowances for councilors and that, only the RMAFC could do, and the RMAFC did not create the allowances in question for the benefit of the claimant and, neither did Enugu State House of Assembly. The learned defence counsel cited Governor of Kogi State’s case [supra], which he said was on all fours with the instant case, in which the Court of Appeal dismissed similar suit for lack of statutory authority to such allowances. Instead of answering the meat of this authority, the learned counsel to the claimant caviled at the irrelevant issue of the obita made in the case about the immorality of earning such allowances, which was not the ratio in the case. The learned claimant’s counsel also caviled that the case dealt with pension and not furniture allowance and the essence of Exhibit C3. However, the claimant reliefs only talked about severance benefit and abandoned the issue of furniture allowance pleaded along with severance allowance, and I wonder what the difference is, between severance benefit and pension. Severance benefits covers pension and gratuity.

My finding is that the authority is truly on all fours with the present case and therefore, it is a binding precedent. The RMAFC covers the field in this scenario – INEC v. Musa (2003) LPELR-24927 (SC) 36-37, D-C – RMAFC, whose sole duty it is to provide allowances for councilors, having not provided for the benefits in issue, the claimant is not in law entitled to them and, the Court is estopped to honour the illegal demand and reliefs with the toga of enforceability – Ochedi & Ors v. CBN & Ors (2018) LPELR-45316 (CA) 29-31, F-D. My duty is to “stop the case and dismiss the claim for being void and unenforceable.” - Ochedi & Ors v. CBN & Ors [supra] 31, D. Assuming for the sake of argument that, the Local Government Council in Enugu State can make provisions for councilors’ allowances, S. 7(1) of the Constitution shows irrefutably that, it must be via a law duly passed by the Enugu State House of Assembly and, not otherwise, and the claimant has not pointed to any such law and, the Court did not discover any such law.  The claimant therefore loses issue 2. I therefore resolve issue 2 in the defendant’s favour and against the claimant. The case must accordingly proceed to conclusion.

 

 

CONCLUSION

Having resolved issue 2 in the defendant’s favour on all points, it follows that in whatever way one looks at the case, the claimant loses its merits. And for this reason, the case would be giving a decent burial. It is accordingly dismissed for lacking merits in all ramifications. Having been accorded a decent burial, I accordingly award no cost. The decision is accordingly entered today Friday the 15^th day of March in the year 2024 and, under my hand as the presiding judge.

 

……………………………

HON. JUSTICE Oluwakayode Ojo AROWOSEGBE

Presiding JUDGE

ENUGU DIVISION

NATIONAL INDUSTRIAL COURT OF NIGERIA