Rt. Hon. Mkpanam Obo Bassey Ekpo & 3 ORS -VS- Government of Cross River State & 2 ORS- National Industrial Court of Nigeria

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

12^TH DAY OF DECEMBER, 2024

SUIT NO. NICN/CA/23/2023

BETWEEN

APPLICANTS

1. RT. HON. MKPANAM OBO BASSEY-EKPO

2. HON. GODSWILL EK

3. HON. (DR.) BASSEY IBOR

(For and on behalf of former members of CRSHA)

AND

1. GOVERNMENT OF CROSS RIVER STATE

2. CROSS RIVER STATE HOUSE OF ASSEMBLY

3. ATTORNEY – GENERAL OF CROSS RIVER STATE

4. RT. HON. LARRY ODEY

5. RT. HON. JOHN GAUL LEBO

6. RT. HON. MAURICE WAYAS EVEY

7. RT. HON. (DR.) GABRIEL OGBUDU ADA

RESPONDENTS

8. RT. HON. MIKE IDOKO OGAR

9. RT. HON. GABRIEL E. EDI

10. RT. HON. BASSEY EWA

11 RT. HON. JAMES O. OMOR EGBEJI

12. RT. HON. FRANCIS BUSAM ADAH

13. RT. HON. OROK OTU DUKE

14. RT. HON. ITAYA ASUQUO NYONG

15. RT. HON. DOMINIC AQUA EDEM

16. RT. HON. PATRICK ANTIGHA ENE

(Joined by Order of Court dated 31^st day of January, 2024)

JUDGMENT.

1. Vide amended Orgnating Summons filed on the 19^th of June, 2023, the claimants seeks for the resolution of the following questions. They are as follows: -

1. Whether in view of the Judgment of this Honourable Court delivered in Suit No. NICN/CA/117/2020: THE RT. HON. LARRY OKORI-ODEY V. THE GOVERNOR OF CROSS RIVER STATE & 2 ORS. the Cross-River State House of Assembly has the constitutional legislative power, authority and/or vires to enact CROSS RIVER STATE SPECIAL ALLOWANCES for some PUBLIC OFFICE HOLDERS LAW, NO. 2, 2023?

2. Whether the CROSS-RIVER STATE SPECIAL ALLOWANCES for some PUBLIC OFFICE HOLDERS LAW, NO. 2, 2023, is valid under section 124 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), AND if the answer is in the affirmative, Whether the inclusion of the Speakers and Deputy Speakers, to the exclusion of other Hon. Members, is not discriminatory and in bad faith?

3. Whether considering the new name given to, the passage and assenting of the Law known and cited as CROSS RIVER STATE SPECIAL ALLOWANCES for some PUBLIC OFFICE HOLDERS LAW NO. 2, 2023, the said Law is valid?

4. Whether in view of the Judgment of this Honourable Court delivered in Suit No. NICN/CA/117/2020: THE RT. HON. LARRY OKORI-ODEY V. THE GOVERNOR OF CROSS RIVER STATE & 2 ORS. the Cross River State Gubernatorial Pensions Law, 2005 and the Cross River State Gubernatorial Pensions (Amendment) Law, 2015, Law No. 7 of 2018 or any other such law were subsisting and valid that it could be repealed by CROSS RIVER STATE SPECIAL ALLOWANCES for some PUBLIC OFFICE HOLDERS LAW, NO. 2, 2023?

2. In anticipation of favourable resolution of the questions posed for determination in their favour, the claimants sought for the following reliefs: -

1. A DECLARATION that by the clear and unambiguous provisions of Section 124 (5) of the Federal Republic of Nigeria, 1999 (as amended) and the judgment of this Honourable Court delivered in Suit No. NICN/CA/117/2020: THE RT. HON. LARRY OKORI-ODEY V. THE GOVERNOR OF CROSS RIVER STATE & 2 ORS, the inclusion of the Hon. Speakers and Deputy Speakers in the CROSS RIVER STATE SPECIAL ALLOWANCES for some PUBLIC OFFICE HOLDERS LAW NO. 2, 2023 invalidates the Law, the Cross River State House of Assembly being divested of such legislative powers.

2. AN ORDER DECLARING NULL AND VOID, ILLEGAL AND UNCONSTITUTIONAL the CROSS-RIVER STATE SPECIAL ALLOWANCES for some PUBLIC OFFICE HOLDERS LAW, NO 2, 2023, the CROSS-RIVER STATE GUBERNATORIAL PENSION LAW, NO. 2, 2005, its subsequent AMENDMENT NO. 4 and LAW NO.7, 2018.

3. A DECLARATION that the Cross-River State House of Assembly is only empowered constitutionally to make a valid law that would provide allowances/pensions out of the Consolidated Revenue Fund of the State Governors and Deputy Governors only without breaching or expanding the provisions of the Constitution so empowering it.

4. A DECLARATION that any inclusion of the Hon. Speakers and Deputy Speakers invariably includes other Hon. Members, all members being equal, having been so elected on the same platform from their different constituencies into the Cross-River State House of Assembly in like manner with the Governors and Deputy Governors.

5. A DECLARATION that the CROSS-RIVER STATE SPECIAL ALLOWANCES for some PUBLIC OFFICE HOLDERS LAW NO. 2, 2023 is discriminatory of all other Hon. Members not included, and an infringement on their rights and entitlements, being co-equal with the Speakers and Deputy Speakers.

6. AN ORDER OF INJUNCTION restraining the 1^st DEFENDANT through the Executive Governor and his appointees from implementing the CROSS-RIVER STATE SPECIAL ALLOWANCES for some PUBLIC OFFICE HOLDERS LAW, NO. 2, 2023, the CROSS-RIVER STATE GUBERNATORIAL PENSION LAW, NO. 2, 2005, its subsequent AMENDMENT NO. 4 and LAW NO.7, 2018.

7. ANY OTHER ORDER(S) as this Honourable Court shall deem fit in the circumstances of this case.

3. In arguing the originating summons Dr. Emmanuel Idaka, Esq; counsel for the claimants informed the court that the claimants have in support of their originating summons, deposed to an affidavit of nine paragraphs in support. The affidavit was sworn to by the 2^nd claimant Rt. Hon. Mkpanam Obo Bassey Ekpo, there is annexed to the affidavit two documents marked as exhibits EEI (1) and Exhibit EEI (2), respectively.

4. Let me say from the on set that in this judgment, the applicants would be referred to as the claimants. While the respondents would be referred to as ‘’the defendants’’ this is in line with the rules of court that recognized parties in an action commenced by originating summons as the claimant(s) and defendant(s).

5. The crux of the depositions contained in the affidavit in support of the originating summons are to the effect that sometimes in the year 2021, an Executive Bill entitled: A BILL for a LAW to be enacted as the CROSS-RIVER STATE SPECIAL ALLOWANCES for some PUBLIC OFFICE HOLDERS BILL, 2023 was to be presented to the Cross-River State House of Assembly for passage into law. It was then agreed among former and incumbent members present at the Special Session with the Executive Governor, Sen. (Prof.) Ben Ayade in attendance that some special allowances be provided for former members of the Cross-River State House of Assembly including the Speakers and Deputy Speakers, especially, to cater for the health of former members.

6. However, to the consternation of the claimants and all other former members, when the said Bill was passed into law and assented to and made public, the former members of the House of Assembly, except the Speakers and Deputy Speakers, were excluded, invariably making it look like another Gubernatorial Pensions Law meant for Governors, Deputy Governors, Speakers and Deputy Speakers, which law had earlier on invalidated and rendered null and void by the decision of this court in Suit No. NICN/CA/117/2020: THE RT, HON, LARRY OKORI-ODEY V. THE GOVERNOR OF CROSS RIVER STATE & 2 ORS. The judgment of which was delivered on 27/5/2021.

7. According to the depositions of the 2^nd claimant, the Cross River State House of Assembly (2^nd defendant) does not have the requisite constitutional legislative power to make a law, that is, CROSS RIVER STATE SPECIAL ALLOWANCES for some PUBLIC OFFICE HOLDERS LAW, NO. 2, 2023, that will draw allowances from the Consolidated Revenue Fund of the State or the State Treasury in the manner enacted under section 124 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) for Governors, Deputy Governors, Speakers and Deputy Speakers, even to the exclusion of the claimants.

8. A written address was also filed along with the originating summons. Counsel relied on the depositions contained in the affidavit in support and further and better affidavit filed in reaction to the counter affidavit of the 4^th – 16^th defendants. Counsel also adopted the written addres and reply on points of law filed by the claimants as his argument. Counsel urged the court to grant the reliefs sought and discountenanced the objection to this suit by the defendants.

CLAIMANTS ARGUMENT OF ISSUES:

9. Issue one: Whether in view of the Judgment of this Honourable Court delivered in Suit No. NICN/CA/117/2020: THE RT. HON. LARRY OKORI-ODEY V. THE GOVERNOR OF CROSS RTVER STATE & 2 ORS. the Cross River State House of Assembly has the constitutional legislative power, authority and/or vires to enact CROSS RIVER STATE SPECIAL ALLOWANCES for some PUBLIC OFFICE HOLDERS LA W, NO. 2, 2023?

10. In arguing issue 1, counsel submitted that the answer to the question is in the negative. As by the clear and unambiguous judgment of this Honourable Court which is still subsisting, extant and not set aside on appeal yet, the Cross River State House of Assembly lacks the constitutional legislative power, authority and or vires to enact the Cross River State Special Allowances for some Public Office Holders Law, NO. 2, 2023, which is a replica in substance and spirit, of the Cross River State Gubernatorial Pensions Law, 2005, 2015 and 2018 which have been nullified by the judgment of this Honourablecourt above cited. According to counsel this Honourable court had in suit No. NICN/CA/117/2020; THE RT. HON. LARRY OKORIE-ODE V. THE GOVERNOR OF CROSS RIVER STATE & 2 ORS, held that the Cross River State House of Assembly lacks the constitutional legislative competence to make a law it is not permitted to make by the Constitution of the Federal Republic of Nigeria, 1999 (as amended), particularly, section 124 (5) thereof that donates the power to it.

11. Counsel submitted that the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is the grund norm, the supreme, basic and organic law of the Federation, as per section 1(1) and (3) of the Constitution (supra) dealing with the supremacy of the Constitution over and above all otherlaws of the country, the section provides,thus:- (i)- “This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.” (3) “If any law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.’’

12. Counsel submitted that any law enacted by the National Assembly, State Houses of Assembly or even a Legislative Council that is in conflict with the clear constitutional provisions is to the extent of its inconsistency null and void, of no effect and liable to being set aside. This is the clear and irredeemable fate of the Cross-River State Special Allowances for some Public Office Holders Law, 2023, which seeks to make provisions for allowances for Governors, Deputy Governors, Speakers, and Deputy Speakers out of the Consolidated Revenue Fund of the State against the spirit and intendment of the enabling section 124 (5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

Section 124 (5) of the Constitution (supra) provides, thus:

“Provisions may be made by a law of a House of Assembly for the grant of a pension or gratuity to or in respect of a person who had held office as Governor or Deputy Governor and was not removed from office as a result of impeachment; and any pension granted by virtue of any provision made in pursuance of this subsection shall be a charge upon the Consolidated Revenue Fund of the State.”

13. Counsel submitted that the Special Monthly Allowances provided under the Cross-River State Special Allowances for some Public Office Holders Law NO. 2, 2023 for Governors, Deputy Governors, Speakers and Deputy Speakers are nothing different from pensions which are clearly inconsistent and in conflict with the lucid provisions of section 124 (5) of the Constitution (supra). It is simply clothing the void Cross River State Gubernatorial Pension Law in another garb. A kind of cross-dressing, which the Constitution (supra) does not permit.

14. Counsel refers to the definition of the word “pension” in Black’s Law Dictionary with Pronunciation, 6^thEdition (Centennial Edition-1891-I991) as,” Retirement benefit paid regularly (normally, monthly), with the amount of such based generally on length of employment and amount of wages or salary of the pensioner.” It is also defined as “Deferred compensation for services rendered’

15. Counsel contended that the Cross River State Special Allowances for some Public Office Holders Law NO. 2, 2023 provides essentially, substantially and in the main what the Cross River State Gubernatorial Pension Law of 2005, 2015 and 2018 provides, which is, retirement benefits paid out regularly, and indeed monthly, such amount of money in percentages hinged on the salaries hitherto earned, as a pensioner, having left service of the State, based on length of service or engagement or employment of the Governor, Deputy Governor, Speaker and Deputy Speaker. It is undoubtedly, a compensation deferred and reserved for after service, thereby qualifying it indubitably as a pension in line with section 124 (5) of the Constitution (supra).

16. It is the contention of counsel that from the outlay of the allowances as captured from the attached Schedule, a pension plan has been put in place for the four (4) public officers, that is, Governor, Deputy Governor, Speaker and Deputy Speaker. A Pension Plan is defined by Black’s Law Dictionary (supra) at page 1135, thus: “A plan established and maintained by an employer primarily to provide systematically for the payment of definitely determinable benefits to his employees or their beneficiaries, over a period of years (usually for life) after retirement. “It is also defined as a stated allowance paid out of the public treasury granted by government to an individual or to his representatives for his valuable services to the country.

17. Counsel argued that the allowances provided under the Cross River State Special Allowances for some Public Office Holders Law NO. 2, 2023 no doubt fit into the definitions above as the Government had put allowances plan (pension plan) for compensation and determinable benefits for the Governor, Deputy Governor, Speaker and Deputy Speaker to be paid systematically, regularly every month on their retirement from those offices out of the treasury of the state, having rendered valuable services as Governor, Deputy Governor, Speaker and Deputy Speaker, respectively.

18. Counsel submitted that the clear and unambiguous intention of the famers of the provisions of section 124 (5) of the 1999 Constitution (as amended) is to make a law for the provision of pension plan for Governors and Deputy Governors simpliciter, and no more. The Cross-River State Special Allowances for some Public Office Holders Law NO. 2, 2023 went beyond the constitutional power granted the House of Assembly to enact any such law, thereby making the aforesaid legislative enactment ultra vires, void and in conflict with the constitution. This is worsened by the fact of judgment of this venerable court in the RT. HON. LARRY OKORI-ODE Y suit (supra).

19. Counsel went on to argue that by a plethora of authorities in interpreting the provisions of a constitution or statute, resort must be made to the plain, literal, natural or grammatical rules of construction where the words of the constitution or statute are clear and unambiguous. The provisions of the Constitution in the instant case must be interpreted to achieve its purpose to create allowances through a law of the State for the Governor and Deputy Governor, which the Cross-River State Special Allowances for some Public Office Holders Law NO. 2, 2023 seeks to achieve, albeit wrongly, arbitrarily, capriciously, whimsically and unconstitutionally. In support of this contention counsel relied on the cases of DICKSON V. SYLVA (2017) S NWLR (PT. 1567) P, 167 at P. 233, Para D, Per KEKERE-EKUN, J.S.C.; REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIGERIAN AIRSPACE MANAGEMENT AGENCY (2014) 8 NWLR (PT. l408) P. 1 at P. 41,Para. B-C, (2015) ALL FWLR (PT. 762) P. 1786 at P. 1812; AMAECHI V. I.N.E.C. (2008) 5 NWLR (PT. 1080) P. 227 (SC); (2008) I S.C. (PT.1) P. 36 at P. 204; ASSAMS V. ARARUME (2016) 1 NWLR (PT. 1493) P. 368 at 387, Para A-C; (2016) ALL FWLR (PT. 821) P. 1481 at P.1492, Para. F-G, Per RHODES-VIVOUR, J’SC.

20. Counsel continued in AMAECHI V. I.N.E.C (2008) 1 S.C. (PT. 1) P. 36 at P. 204, ONNOGHEN, J.S.C. (as he then was) opined, thus:

“it is settled law that in the construction of a statute, the primary concern of the Judge is the attainment or ascertainment of the intention of the legislature by examination of the language used therein, Where the language used in the legislation or statute or Constitution is clear, explicit and unambiguous, as found in the instant case, the Judge must give effect to it as the words used speak the intention of the legislature.”

21. Counsel further submitted that reading the provisions of section 124 (5) of the Constitution (supra) and the Cross River State Special Allowances for some Public Office Holders Law NO. 2, 2023, vis-à-vis the Cross River State Gubernatorial Pensions Law, 2005 and the Cross River State Gubernatorial Pensions (Amendment) Law, 2015 and 2018, respectively, clearly evinces that the State Law was in fulfillment of the intention of the Constitution to make a law for pension allowances for Governor and Deputy Governor, but overshot and shot itself in the foot by the deliberate inclusion of the Speaker and Deputy Speaker,

22. Counsel further relied on the case of NOSDRA V. MOBIL PROD. (NIG.) UNLTD. (2018) 13 NWLR (PT.1636) P. 334 at P.336, Holding No. 3, dealing with the effect of an Act of the National Assembly being inconsistent with provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Court of Appeal, Calabar Division, held, thus:

“Sections 1 and 6 of Constitution of the Federal Republic of Nigeria, 1999 (us amended) empowers the Courts to declare any Act of the National Assembly inconsistent with the provisions of the Constitution, null and void.Therefore, the Courts will not allow any authority to act ultra vires its powers under the Constitution.”

23. According to counsel on the authority of the NOSDRA case (supra), the Cross River State House of Assembly lacked the vires to enact the Cross River State Special Allowances for some Public Office Holders Law 2023, which is inconsistent with Section 124 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), therefore liable to being nullified by this Honourable Court.

24. Counsel posited that to apply the literal or grammatical canon of interpretation of statutes in resolving this issue in favour of the claimants findng finding and holding that the Cross-River State House of Assembly lacked the vires to enact the Cross-River State Special Allowances for some Public Office Holders Law NO. 2, 2023 for the provision of monthly pension allowances for Governors, Deputy Governors, Speakers and Deputy Speakers.

25. Issue 2: Whether the CROSS RIVER STATE SPECIAL ALLOWANCES for some PUBLIC OFFICE HOLDERS LAW, 2023, is valid under section 124 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), AND if the answer is in the affirmative. Whether the inclusion of the Speakers and Deputy Speakers, to the exclusion of other Hon. Members, is not discriminatory and in bad faith?

26. According to counsel the answer to the poser above is in the negative. The Cross River State Special Allowances for some Public Office Holders Law, NO. 2, 2023 is invalid under section 124 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). In BOKO V. NUNGWA (2019) I NWLR (PT.1654) P. 395 at P. 405,Holding 4, the Supreme Court held that the Constitution of the Federal Republic of Nigeria,1999 (as amended) is supreme and soars far above the constitution and regulations of a political party. By the same token, the provisions of Section 124 (5) is supreme to any law made by the House of Assembly of Cross River State in conflict or in violation of the Constitution including the Cross-River State Special Allowances for some Public Office Holders Law, NO 2, 2023. Counsel submitted that should the law be held to be valid, the exclusion of other former Honourable members (the claimants) makes the law discriminatory and enacted in bad faith.

27. For counsel what is good for the goose is good for the gander. The Speakers and Deputy Speakers being Honourable members elected on equal platform as the other aggrieved members do not have any more privileges and entitlements than the others. This is more so, because they are just first among equals.

28. Counsel continued his submission that section 124 (5) of the Constitution of the Federal Republic of Nigeria I999 (as amended) explicitly, un-equivocally and in a most clear terms makes provisions for pension allowances for Governors and Deputy Governors only. It does not make provisions for Speakers and Deputy Speakers. The CROSS-RIVER STATE SPECIAL ALLOWANCES for some PUBLIC OFFICE HOLDERS LAW NO. 2, 2023, is therefore, invalid under section 124 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) because it is directly in conflict with its clear provisions as an enabling law or statute and to the extent of its inconsistency, it is void ab initio and of no effect whatsoever. It does not confer any authority on the 1^st defendant through its officers like the Governor and Accountant General to pay out of the Treasury of the State the said outlined allowances to the selected public officers, to wit: Governors, Deputy Governors, Speakers and Deputy Speakers, respectively.

29. Counsel refers to the case of MADUKAEGBU V. STATE (2018) 10 N WLR (PT.1626) P. 26 at P. 35, the Supreme Court, per EJEMBI EKO, J.S.C. (dissenting) held, thus:

“…Where and when a statute enjoins that a thing be done in u particular way or manner, unless that thing is done in a particular way and manner prescribed by that statute such a thing done otherwise than the way or manner prescribed shall be invalid. The prescribed mode or manner must be strictly followed otherwise the thing done shall be invalid such non-compliance with mandatory provisions of the statute is not only an act of insubordination to the statute, it renders the non-compliance with statutory dictates null and void.”

30. Counsel further submitted in ATTORNEY-GENERAL, BENDEL STATE V. ATTORNEY-GENERAL, FEDERATION & ORS. (1982) 3 NCLR I at 13, ESO, J.S.C. said,

“In the interpretation and construction of our 1979 Constitution, I must bear the following principles of interpretation in mind,..

I. The language of the Constitution where clear and unambiguous must be given its plain evident meaning;

II. A Constitutional provision should not be construed so as to defeat its evident purpose;

III. Under a Constitution conferring specific powers, a particular power must be granted or it cannot be exercised;

IV. Words are the common signs that mankind make use ofto declare their intention one to another and when the words of a man express his meaning plainly and distinctly and perfectly, there is no occasion to have recourse to any other means of interpretation.’

V. The principles upon which the Constitution was established rather than the direct operation or literal meaning of the words used,measure the purpose and scope of its provisions and

VI. Words of the Constitution are therefore not to be read with stultifying narrowness.

31. It is submission of counsel that the words used in Section 124 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which confer specific powers to be exercised in a particular manner are very clear and unambiguous and must be given its plain evident meaning which is to donate power to the Cross River State House of Assembly to permissively make a law for pensions/allowances for Governor and Deputy Governor to be charged on the Treasury of the State or the Consolidated Revenue Fund of the State, that being the evident purpose of the said constitutional provision and nothing more.

32. Counsel submitted that the Speaker and Deputy Speaker as well as all the Honourable members of the State House of Assembly, by the 1999 Constitution (as amended) are equal, having equal opportunities and entitlements. The Speaker and Deputy are not allowed to have access to the Treasury or Consolidated Revenue Fund of the State by means of any law to the detriment and exclusion of the others. This is the reason for their total exclusion under Section 124 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

33. Counsel also refers to the case of ATTORNEY-GENERAL, BAUCHI STATE V. ATTORNEY-GENERAL OF THE FEDERATION (2018) 17 NWLR (PT.1648) P. 299 at PP. 316-317, where the Supreme Court held in Holdings 14, 15 and 16 stated as follows:

14. The language of Section 251 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is clear, plain and un-ambiguous,and so has to be accorded the ordinary meaning of the words in that provision.

34. Counsel submitted that the same principles apply to Section 124 (5) of the Constitution of the Federal Republic of Nigena, 1999 (as amended). A careful reading of the sections of the CROSS-RIVER STATE SPECIAL ALLOWANCES for some PUBLIC OFFICE HOLDERS LAW, NO. 2, 2023 also reveals how clear, plain and unambiguous the law is in violation of the Constitution (supra) in making provisions beyond its vires for the Speakers and Deputy Speakers.

35. It is further submitted that the court held in Holding15, in the interpretation of the Constitution, the general principle is that such interpretation as would serve the interest of the Constitution and best carry out its purpose and objective should be preferred. The relevant provision must be read together and not in isolation. Where the words of any section are clear and unambiguous, they must be given their ordinary meaning, unless it would lead to absurdity or it would be in conflict with other provisions of the Constitution. Where the words used are capable of two meanings, the court must choose the meaning that would give force and effect to the Constitution and promote its purpose, in this case the language of Section 251 (a) is very clear and unambiguous, and the words contained therein ought to be given their ordinary grammatical meaning. It was also held that the courts saddled with interpretation or construction of the words or language of a statute or the Constitution, always assume that the legislature uses each word in the provisions for a purpose and not in vain. In interpreting the provisions of the Constitution, in the clear tenor of the words of the provisions, is the function of the court. The duty of the judex is to interpret the Constitution in line with the words used by the makers of the Constitution is the only way to bring out the intention of the makers of the Constitution, Ascertaining the intention of the lawmakers or the parliament from the language used in the statute has always been one of the pillars of canon of interpretation of statute or Constitution. (See OBUSEZ V. OBUSEZ (2007) 10 NWLR (PT. 1043) P. 430; Buhari V Yusuf (2003) 14 NWLR (PT. 841) 446).

36. Counsel submitted that on the contrary, should the Honourable court hold that the Cross River State Special Allowances for some Public Office Holders Law, NO.2, 2023 is not invalid and a violation of the power donated to the House of Assembly under Section 124 (5) of the I999 Constitution of the Federal Republic of Nigeria, the said law is discriminatory of other former Honourable members of the House of Assembly represented by the claimants herein in that the claimants entitlement and privilege of having retirement allowances or pension was discounted in course of the enactment of the Cross River State Special Allowances for some Public Office Holders Law, 2023. This is so because in the first place, the Speakers and Deputy Speakers are equal with all other Honourable members who have served the State excellently for their respective tenures of minimum four years without any blemish or reproach.

37. It is submitted that the passage and assenting of the law in issue without the inclusion of the former Honourable members only because they never presided as Speakers or Deputy Speakers is a violation of their equal entitlement with the Speakers and Deputy Speakers, having served the State creditably with the Speakers and Deputy Speakers. To provide for the Speakers and Deputy Speakers is to say they were never worthy of such allowances and entitlements, which is nothing but deferred compensation by their employer, the Government of Cross River State.

38. Issue 3: Whether considering the new name given to, the passage and assenting of the Law known and cited as CROSS-RIVER STATE SPECIAL ALLOWANCES for some PUBLIC OFFICE HOLDERS LAW, NO. 2, 2023, the said Law is valid?

39. It is submission of counsel that the circumstances of the re-naming, re-branding or christening and the passage of the Cross-River State Special Allowances for some Public Office Holders Law, No. 2, 2023 makes it invalid. This is so, as the re-styling, re-naming, re-branding or christening of the law without any change in substance betrays it as another law equivalent to the Cross-River State Gubernatorial Pension Law which this court with required judicial competence had declared as null and void in an earlier suit. It is calling a rose by another name, yet it smells as sweet.

40. Counsel urged the court to find and hold that the said law remains invalid despite the re-naming, re-branding or christening of the law for pension for Governor and Deputy Governors and Speakers and Deputy Speakers in another name to cast a well and hide its purpose. It is akin to judging a book by its cover, not the content of the book. It could be most misleading. Counsel urged the court to resolve this issue in favour of the claimants.

41. Issue NO. 4: Whether in view of the Judgment of this Honourable Court delivered in Suit No. NICN/CA/117/2020: THE RT. HON LARRY OKORI-ODEY V. THE GOVERNOR OF CROSS RIVER STATE & 2 ORS. The Cross River State Gubernatorial Pensions Law, 2005 and the Cross River State Gubernatorial Pensions (Amendment) Law, 2015, 2018 or any other such law were subsisting and valid that it could be repealed by CROSS RIVER STATE SPECIAL ALLOWANCES for some PUBLIC OFFICE HOLDERS LAW, NO. 2, 2023?

42. In arguing issue 4, counsel submitted that the Cross-River State Gubernatorial Pensions Law, 2005 and the Cross-River State Gubernatorial Pensions (Amendment) Law, 2015 and 2018 ceased to exist, subsist or being extant from the date the Judgment of this Honourable Court was delivered rendering it null and void and of no effect whatsoever. What is nullified or invalidated ceases to be in existence. Therefore, there was no such law as the Cross-River State Gubernatorial Pensions Law, 2005 and the Cross-River State Gubernatorial Pensions (Amendment) Law, 2015 or 2018 in existence to be repealedby the CROSS-RIVER STATE SPECIAL ALLOWANCES for some PUBLIC OFFICE HOLDERS LAW, NO. 2, 2023 at the time of passage into law and assenting thereof.

43. Counsel urged the court to find and hold that the former pension laws were no more in existence at the time its replacement was passed into law and resolve this issue in favour of the claimants.

44. In concluding his submission counsel urged the court to resolve all the issues formulated for determination in favour of the claimants and grant all the reliefs sought based on the affidavit evidence with the attached exhibits and the written argument in support of the originating summons.

THE SUBMISSION OF 1^ST 2^ND and 3^RD DEFENDANTS

45. The 1^st, 2^nd and 3^rd defendants did not object to the grant of most of the reliefs sought. Consequently, no counter affidavit was filed by the 1^st to 3^rd defendants to contradict or controvert the affidavit in support of the originating summons. The written address filed by the 1^st to 3^rd defendants in reaction to the originating summons is in support of the originating summons.

46. In the written address filed by the1^stto 3^rd defendants twin issues were formulated for determination. They are: -

1. Whether the Cross-River State Special Allowance Law 2023 [Exhibit EEI (1)] as passed by the Cross-River State House of Assembly and assented to by the Governor of Cross River State on the 15^th day of February 2023 is constitutional?

2. Whether the Cross-River State Gubernatorial Pension Law No. 2, 2005 is still subsisting and valid as a law regulating pension of former Governors and Deputy Governors in Cross River State?

ARGUMENTS ON THE ISSUES FOR DETERMINATION

47. Issue One: Whether the Cross-River State Special Allowance Law 2023 [Exhibit EEI (1)] as passed by the Cross-River State House of Assembly and assented to by the Governor of Cross River State on the 15^th day of February, 2023 is constitutional?

48. According to counsel this issue flows from issues 1, 2 and 3 of the claimants’ issues in their written address. These issues were consolidated to form this lone issue for determination.

49. In arguing this issue counsel submitted that the answer to this issue is an emphatic No. Counsel adopted the arguments of the claimants as contained in their issues 1, 2 and 3 but counsel want the issue resolved simply on the constitutionality of the Cross-River State Special Allowance Law 2023.

50. It is submission of counsel that the Cross-River State Special Allowance Law 2023 attempts to create a special allowance to former Governors, Deputy Governors, Speakers and Deputy Speakers, one may wonder what kind of allowance enures to former occupants of office if not a pension. But taking the law literarily, the argument is that, such a law is unconstitutional because the House of Assembly cannot make a law for her own allowances as the Constitution has clearly put that responsibility under the Revenue Mobilization Allocation and Fiscal Commission (RMAFC).

51. Counsel went on to argue that under Section 111 of the 1999 Constitution, a member of the House of Assembly shall receive such salary and other allowances as the Revenue Mobilization Allocation and Fiscal Commission may determine. A Speaker and Deputy Speaker are members of the State House of Assembly and therefore cannot legislate to determine their own salary and ‘other allowances’. Any attempt to do so as is done in the current law is unconstitutional and therefore null and void. In National Union of Electricity Employees & Anor. V. Bureau of Public Enterprise (2010) LPELR 966 (SC), it was held thus: “it is trite law that under the consistency test that the validity of any law is determined by its consistency with the provisions of the Supreme Law, that is, the Constitution. So that where any law is inconsistent with any provisions of the Constitution, such other law shall to the extent of the inconsistency be void”.

52. Counsel also submitted that under the Nigerian Constitution Allowances of political office holders is determined by the Revenue Mobilization Allocation and Fiscal Commission (RMAFC) which is established by the 1999 Constitution in Paragraph 32(d) of Part 1 of the Third Schedule. It is the exclusive powers of the RMAFC under the Constitution and no other agency has any such powers. Any other organ of Government that attempts to fix remuneration or allowances other than that by the RMAFC is engaging in illegality. A careful reading of Paragraph 32(d) of Part 1 of the Third Schedule to the 1999 Constitution provides that clear understanding. The RMAFC shall have power to:

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

53. Counsel submitted that by the clear and unambiguous provision it is only the RMAFC that can determine salaries and allowances of political office holders. Even when the House of Assembly is permitted to make laws with respect to such salaries and allowances, it must first be restricted to the allowances and salaries determined by the RMAFC and must not be more than the amount so determined. Similarly, such allowances are restricted to current office holders. Section 124 (1) and (2) of the 1999 Constitution, which empowers the RMAFC to fix remuneration of constitutional office holders, actually talks of “salaries and allowances”. The Section provides thus: “there shall be paid to the holders of the offices mentioned in this Section such remuneration and salaries as may be prescribed by a House of Assembly but not exceeding the amount as shall have been determined by the Revenue Mobilization Allocation and Fiscal Commission”.

54. It must be noted that the law which was in all material content same with the Cross River State Gubernatorial Pension Law 2005 as amended merely tried to react to the judgment of the Industrial Court of Nigeria in Rt. Hon. Larry Okori-Odey v. Government of Cross River State & 2 Ors in Suit No. NICN/CA/11/2020 by deleting the word pension wherever it existed in the Pension Law and replacing it with the word “Special Allowance” in the new 2023 Law. It therefore retained the payment of special allowance (pension) to all former Governors, Deputy Governors, Speakers and Deputy Speakers.

55. It is to cater for past office holders that the Constitution in Section 124 (5) permits the House of Assembly to make law for the pension of former Governors and Deputy Governors. It therefore follows that there cannot be ‘allowances’ after office but only pension.

56. Counsel urged the court to find and hold that payment of allowance to members of State House of Assembly after leaving office is an aberration and not supported by any law and a law such as the present one that attempts to do so is out rightly unconstitutional.

57. Issue 2: Whether the Cross-River State Gubernatorial Pension Law No. 2, 2005 is still subsisting and valid as a law regulating pension of former Governors and Deputy Governors in Cross River State?

58. In arguing issue 2, counsel submitted that in the well- considered judgment of this Honourable Court in Rt. Hon. Larry Okori-Odey v. Government of Cross River State & 2 Ors in Suit No. NICN/CA/11/2020 this Court nullified the Gubernatorial Pension Law Amendment of 2015 and saved the 2005 Law. These were the exact words of this Honourable Court.

“I have scrutinized the provisions of Section 124 (5) of the Constitution of the Federal Republic of Nigeria 1999, as amended, and I am satisfied that the said provisions of the Constitution did confer on the Cross River State House of Assembly power to enact a law to make provisions for grant of pension to the Governor and Deputy Governor of the State. However, there is no equivalent power in Section 124 (5) of the Constitution for making provision for pension for the Acting Governor of the State or the Speaker of the House of Assembly of the State. This means that the Gubernatorial Pension Law Amendment of 2015, which came into force on 19/5/2015 that was made with the sole aim of making provisions for payment of pension to Acting Governor and Speaker and Deputy Speaker was made without vires. The said Amendment having been made without the requisite power is null and void and of no effect whatsoever. In the case at hand, the Pension Law applicable in Cross River State as at February 2012 is the Gubernatorial Pension Law 2005 and not the amended law as at 2015”.

59. Counsel again argued that, the Cross-River State Special Allowance Law 2023 has attempted to repeal the Gubernatorial Pension Law 2005. Having argued that the Cross-River State Special Allowance Law 2023 is unconstitutional and therefore null and void and if this Honourable Court agrees with this argument that the Law is unconstitutional, it therefore means its provisions cannot repeal the 2005 Law which was earlier saved by the Honourable Court in Rt. Hon. Larry Okori-Odey v. Government of Cross River State & 2 Ors (supra).

60. Counsel urged the court to resolve this issue by holding that the Gubernatorial Pension Law of 2005 is the only Law still in operation.

61. In concluding his submission counsel urged the court to grant the reliefs as sought by the claimants as contained in Reliefs 1, 2, 3, 5 and 6. The Court should refuse Relief 4 because if the Court grants Reliefs 1, 2 and 3, there will be nothing left to grant in Relief 4.

THE SUBMISSIONS OF THE 4^TH TO 16^TH DEFENDANTS.

62. In opposition to the originating summons Prof. Jacob A. Dada, Esq; counsel for the 4^th to 16^th defendants in arguing in favour of the opposition informed the court that the 4^th to 16^th defendants have filed a 9 paragraphs counter affidavit sworn to by Rt. Hon. Asuquo Itaya Nyong, one of the defendants joined by order of the court. Counsel relied on the averment contained in the counter affidavit. Counsel also adopted a written address filed in opposition as his argument.

63. In the counter affidavit, it was stated that the 4^thto 16^th defendants were elected into the Cross River State House of Assembly end served between 2011 and 2015. They were former Speakers and Deputy Speakers of Cross River State House of Assembly at various times, and as such, Principal Officers of the House. In 2015, the Government of Cross River State passed CROSS RIVER STATE GUBERNATORIAL PENSIONS LAW, 2005 to make provision for certain allowances for former Speakers and Deputy Speakers of Cross River State House of Assembly. In 2023, the aforesaid Law, that is, CROSS RIVER STATE GU8ERNATORIAL PENSIONS LAW, 2005 and its subsequent amendments were repealed and another Law, that is, Cross River State Special Allowances for Some Public Office Holders Law, 2023 was enacted. The 2023, does not make provision for pension but special allowances for the named persons evidently in recognition and appreciation of the special contribution and selfless stewardship rendered to the State.

64. However, in apparent malicious attempt to discredit the Law and deny the targeted persons, the Claimants filed this action challenging its validity.

65. It is stated that this matter is not on employment or labour dispute. The Cross-River State Special Allowances for Some Public Office Holders Law, 2023 was regularly and legally passed after public hearing. The law makes provision for allowances as evident from its content. The non-inclusion of the Claimants in the Law is not, and cannot be said to be discriminatory. This suit is a direct challenge of the law properly made by Cross River State House of Assembly.

66. In the written address in opposition the four questions formulated by the claimants were argued by the learned counsel.

67. However, before arguing the four questions submitted for resolution, counsel started with objection to the competency of the action on three grounds, namely: -

1. The Applicants have no locus to initiate the same,

2. The subject matter is not within jurisdictional competence of this honourable court, to hear and determine, not being a labour dispute but purely a constitutional matter and,

3. The Claimants have no authority to institute this action in a representative capacity, thus rendering the suit incompetent.

ARGUMENTS OF THE THREE GROUNDS OF OBJECTION:

68. Locus Standi: On the issue of want of locus, counsel submitted that the claimants do not have the locus standi to institute this action being a challenge of a law validly passed by the Cross-River State House of Assembly in exercising its constitutional legislative powers as provided in section 4 of the 1999 Constitution (as amended).

69. Counsel submitted that it is not only relevant but significant to note that the claim of the claimants is not an assertion of violation of any legal right, whether constitutional, statutory or contractual or invocation of the supervisory jurisdiction of the court to protect any imminent breach of any rights, privileges and entitlements of the claimants. Rather, it is a challenge of the constitutionality of the Law duly passed by Cross State House of Assembly, that is Cross River State Special Allowances for Some Public Office Holders, Law, No.2, 2023. It is accordingly submitted that the subject matter of this suit brought in a private capacity to enforce public right (if any), is totally incompetent and unmaintainable.

70. In the circumstances, counsel submitted that this action is not maintainable by the claimants, since they are not asserting any breach or potential breach of their legal rights. Counsel continued his submission that for someone to have locus standi to institute an action, he must show thnt he has sufficient interest in the matter. In support of this view counsel reled on the case of Adesokan v Adegorolu (1991) 3 NWLR (Pt 179) 293 at 307.

71. According to counsel to have locus standi to institute and maintain an action, the litigant is under a duty to establish justiciable right. No such right has been shown by the claimants in this case. In support of this submission counsel relied on the celebrated decision of the Supreme Court in the case of Abraham Adesanya v President, Federal Republic of Nigeria remains the law that justiciable interest.

72. According to counsel this Honourable court should decline the invitation to assume jurisdiction over this case the same having been instituted by meddlesome interlopers and not persons wHo have justifiable and justiceable interest. In Charles v Governor, Ondo State (2013) 2 NWLR at 294, the law was eloquently declared as follows:

73. A party who seeks a declaratory relief in the constitution must show that he has a constitutional interest to protect and that the interest is violated or breached to his detriment. The interest must be substantial, tangible and not vague, intangible or caricature.

74. It is submission of counsel that the law is settled that where the party initiating an action lacks locus standi, the court is robbed of jurisdiction to entertain it. On this submission counsel relied on the cases of Charles v Governor, Ondo State (2013) 2 NWLR at 294, Yesufu v Governor, Edo State (2001) 2 NCLR 358. Specifically, on what confers locus standi on a person challenging the constitutionality of a Statute, it has been held that:

75. A party challenging the constitutionality of a statute has a duty to show that he has sustained an injury or is in danger of sustaining one in addition to showing that statute is invalid. National Assembly v President, FRN, VOL. 2 LLRN 871. Counsel also refers to the case of Bendel State v A.G Fed. (1981) 3 NCLR 1

76. Absence of jurisdiction: It is submission of counsel that this court lacks the jurisdictional competence to entertain this action as the subject matter clearly, does not fall within the purview of matters which this Honourabie court is empowered to entertain by virtue of the provision of section 254C(1) of the 1999 Constitution (as amended) or the Third Alteration Act, 2010 which establishes the National Industrial Court of Nigeria.

77. According to counsel section 254C(l)(a)(k)which makes provision for the jurisdiction of the court confers exclusive jurisdiction on it to entertain and determine cases relating to or connected with trade disputes, labour practices, matter relating to the Factory Act, Trade Disputes Act, etc.

78. Counsel posited that the legal and practical implication of the above is that the jurisdictional competence of the court is clearly constitutionally circumscribed. It relates and is connected and limited to employment and labour related disputes. According to counsel, the Originating Summons commencing this suitin this court must also relate to labour and industrial relations. In fortification of the foregoing, counsel refers to Order 3 Rule 3 authoritatively provides that:

Civil proceedings that may be commenced by way of Originating Summons include matters relating principally to the interpretation of any Constitution, enactment, agreements or any other instrument relating to employment, labour and industrial relations in respect of which the Court has jurisdiction by virtue of the provisions of section 254C of the Constitution of the Federal Republic of Nigeria,1999 (as amended) or by any Act or law in force in Nigeria.

79. According to counsel the issue submitted for adjudication in this case is not, and cannot, be said to be employment or labour related issue; Decidedly, no employment relationship existed between the Applicant and the 1^st and 2^nd defendants during the currency of their tenures as former members of Cross River State House of Assembly. Accordingly, labour or industrial relation dispute warranting adjudication cannot arise between them. Ipso facto, this Honourable court lacks the jurisdiction or competence to entertain this action.

80. Counsel further submitted that jurisdiction of a court cannot be assumed or implied but based and predicated on the statute or instrument establishing the court. As the courts have held in a plethora of cases that jurisdiction is a fundamental and threshold issue in a proceeding and as such, the jurisdiction of a court can be challenged at any time or stage in any judicial proceedings: -

81. In Oloba v Akereja(1988)3 NWLR (pt.84)508, 520 it was held, inter alia by the Supreme Court that: -

The issue of jurisdiction is very fundamental as it goes to the competence of the court or tribunal. If a court or tribunal is not competent to entertain a matter or claim or suit, it is a waste of valuable time for the court to embark on the hearing and determination of the suit, matter or claim. It is therefore, an exhibition of wisdom to have the issue of jurisdiction or competence determined before embarking on the hearing or determination of the substantive matter.

82. Counsel further submitted that the fundamentality of jurisdiction has also been restated in the case of Goldrnark (Nig) Ltd v Ibafon Co. Ltd (2012) 10 NWLR (Pt.291), (2013) FWLR (Pt.663) 1, by the Supreme Court as follows;

The question of Jurisdiction of a court is a radical and crucial question of competence because if a court has no jurisdiction to hear and determine a case, the proceedings are and remain a nullity ab initio no matter how well conducted and brilliantly decided they might be, because a defect in competence is not intrinsic but extrinsic to the process of adjudication.Jurisdiction of a court is determined by the plaintiff’s claims as endorsed in the writ of summons and statement of claim even where a federal Government Agency is involved.

83. Counsel further refers to the cases of: Trade Bank Plc v.Benitux (Nig) Ltd (2003) 9 NWLR (Pt.825) 416, Onuorah v. KRPC Ltd (2006)6 NWLR (Pt.921) 393; Adeyemi v.Opeyori (1976)9-10 sc 3I:Adeyemi v. Oditi (2006) 6 NWLR (Pt.977)587; Gafar v. Govt. Kwaro State (2007) 4 NWLR (Pt.1024) 375;Tukur v. Govt. Gongola State (1989)4 NWLR (Pt. 117) 519.

84. Counsel also submitted that that jurisdiction of a court is of such a fundamental and crucial nature in all judicial proceedings that it is not only regarded as a threshold issue, referring to Sule v- Kabir (2112)2 NWLR (Pt.1232) 515 at page 524, paras C – F per Garba JCA.) but incapable of being waived. Counsel urged the court to decline the invitation by the claimants to entertain this action which is clearly outside the contemplation of the jurisdiction conferred on this court by striking out the suit. Counsel also submitted that absence of jurisdiction is irreparable in law and the only procedural duty of court is to strike out the case: Ajayi v Adebiyi (2012) 11 NWLR (Pt.1310) 137 SC.

85. Representative Capacity: Counsel posited that the claimants in this case are purporting to be representing former members of Cross River State House of Assembly. To show that they are so empowered and authorized, they ought to have exhibited relevant documentary evidence in authentication of the claim. The documentary evidence would have been the signed documents by the former House members on whose behalf they are purporting to act. No such evidence has been shown either specifically or impliedly by the Applicants in this case.

86. Counsel conceded that the law is fairly established that it is only a member of a group, family or community who can dispute, intervene or challenge the proper representation or capacity in which the Plaintiffs’ sue Durban HoteI Plc v Ityough (2011) 9 NWLR (Pt 1251) 41, it is however submitted that, where as in this case, it is evident, doubtful or suspicious that no authorization has been shown by a person or party purporting to represent another in a litigation, then, even a defendant can raise the issue of want of authority, and ipso fact, capacity to sue.

87. Counsel refers to the case of Melifonwu and Others v Egbuji& Others (1982) 9 SC 145, where the Supreme Court stated the law as follows:

Representative action is only permissible if more persons than one have a common interest in a suit and the interested persons in suing have given authority to the named plaintiff to sue on their behalf. Counsel further stated it has also been held that where the authority of a person to sue in a representative capacity is challenged, the onus is on him to satisfy the court that he had been duly authorized. To support his contention counsel relied on the case of Olatunji v Registrar, Cooperative Societies, (1968)NMLR 393.

88. Counsel submitted that in the absence of express or implied authorization empowering the present plaintiffs to institute this action, the same is not maintainable and is liable to be struck out, this is especially so as no leave of this Honourable court was obtained prior to the institution of this action to sue in a representative capacity.

ARGUMENT OF THE ISSUES FOR DETERMINATION

89. Issue 1: Whether in view of the judgment of this Honouroble court delivered in Suit. No. NIC/CA/117/2020: THE RT. HON. LARRY OKORIE-ODEY V THE GOVERNMENT OF CROSS RIVER STATE & 2 ORS, the Cross-River State House of Assembly has the constitutional legislative power, authority and/vires to enact Cross River State Special Allowances for some Public Office Holder Law, No. 2, 2023

90. In arguing issue one; counsel submitted that in the examination of this evidently self-serving and misleading issue the claimants had submitted that Cross River State House of Assembly acted ultra vires its powers in enacting Law NO. 2 of 2023 and that the said law is inconsistent with the decision of the court in Suit. No. NlCN/CA/117/2020: THE RT. HON. LARRY OKORIE-ODEY V THE G OVERNMENT OF CROS5 RIVER STATE & 2 ORS.

91. According to counsel Cross River State House of Assembly acted intra vires its legislative powers in enacting the law and that the judgment of this Honourable court in the afore-cited case that is, Suit. No.NIC/CA/117/2020: THE RT. HON. LARRY OKOt2IE-ODEY V THE GOVERNMENT OF CROSS RIVER STATE: & 2 ORS was not intended to override, supersede, or otherwise circumscribe the constitutionality guaranteed legislative powers of the Cross-River State House of Assembly to make laws. It is further submitted that the judgment of a court, even the Supreme Court, does not create a binding precedent on the exercise of legislative power. Ipso fact, the legislative powers of Cross River State House of Assembly cannot be impeded, limited or circumscribed by afore-cited decision of the National Industrial Court.

92. Counsel conceded that courts have the Jurisdictional power to pronounce on the constitutionality or otherwise of any statute, the law is settled as pronounced by the Supreme Court in A.G Abia v A.G Federation (2004-2007)3 LLRN 1260, that:

The courts, including the Supreme Court, have no jurisdiction to question the law-making power of the National Assembly and the House of Assembly of States.This is because the power to make law is vested in them and the court cannot by or through the common law remove the power from them.

93. To further support his contention counsel further refers to the case of A.G. Ondo State v A.G. of the Federation (2002) 9 NWLR (Pt 772) 222 and A.G Bendel State v A.G Federation (1983) 15CNLR 239.

94. Counsel went on to argue that a legislation can be valid, constitutional and unimpeachable even if it is a direct opposite of the decision of a court of law. In support of this position counsel relied on the cases of Boye v Adeyeye, (2012) 12 NWLR (Pt1314) 357, Lakanmi v A.G Western Nigeria (1910) NSCC143, where it was held that a court judgment can be overridden by subsequent legislation. In other words, Government can by legislation reverse or nullify a court judgment. Accordingly, the validity and constitutionality of Law NO. 2, 2023 of Cross River State must be determined by its compliance with the constitution and not the judgment of a court including the afore-cited decision of the National Industrial Court.

95. In reply to the specific submission that Law NO. 2, 2023 is inconsistent with the provision of section 124(5) of the Constitution in that the special allowances provision for in the law are nothing different from pensions, it is submitted that the foregoing submission is misleading and must be discountenanced. First, Law No. 2, 2023 did not make provision for pension but special allowances and it will be a grave subversion of legislative intent to appellate or construe the plain word, “pension and gratuity” as meaning allowances. Indeed, the words, “pension and gratuity” are grammatically and etymologically different from the word, allowances, counsel urged the court to so hold. The law is clear on the construction of statutes that words, in a statute must be given their plain and ordinary meaning. It has also been established beyond equivocation that “there is presumption that words in a statute or the constitution are not mere surplusage or tautology, hence each word should be given effect to” Victorian Chamber of Manufacturers v The Commonwealth (1943) 67 C.L.R 413 at 427. In A.G of Bendel State v A.G Fed. (1981) 10 S.C 1, the Supreme Court held inter alia that the language of the constitution, where clear and unambiguous, must be given its plain and evident meaning. In UTB (Nig) Ltd v Innocent C Ukpabia & Ors (2001) FWLR (Pt 51) 1889 at 1901, the Court of Appeal authoritatively maintained that: Statute must be construed in its ordinary sense and it is improper to read into it what it does not expressly provide. Further, in Ignatius Udeh v Federal Republic of Nigeria, (2001) FWLR (Pt 61) 1731 at 1745, the Court of Appeal emphasized that “it is impermissible for the court to embark on needless exercise of ascribing to the word such other meaning it cannot truly ever accommodate where there is clear and unambiguous words in a statute” if the word pension and gratuity and allowances are different, they must be differently construed as any other construction will be a departure from, and rejection of, the well established canons of statutory construction.

96. Furthermore, it is speculative and unsustainable to assert or submit that the special allowances payable under the law are to be a charge on the Consolidated Revenue of Cross River State as no such provision is stated in the Law. Counsel commends to the court the Supreme Court decision in Kraus Thompson Organisation v National Institute for Policy and Strategic Studies (2004) ALL FWLR (Pf 218) 797 at 809.

97. Where provisions of a statute are clear, the duty of the court is to interpret the clear provision by giving the plain words their ordinary interpretation without more. It is not the function of the court of law to sympathies with a party in the interpretation of a statute merely because the language of the statute is harsh or will cause hardship:

98. Issue 2: Whether the Cross-River State Special Allowances for Some Public Office Holders, Law, 2023 is valid under section 124(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). AND if the answer is in the affirmative, whether the inclusion of the Speakers and Deputy Speakers to the exclusion of other Hon.Members is not discriminatory and in bad faith.

99. Counsel submitted that it has been submitted on behalf of the claimants that Law No.2 of 2023 is invalid being inconsistent with the provisions of section 124 (5) of the constitution. Counsel further submitted that should the law be held valid, the exclusion of other former honourable members makes the law discriminatory and enacted in bad faith.

100. It is however submitted that Law No. 2 of 2023 is valid, constitutional and unimpeachable as it is not inconsistent with the provisions of the constitution or in anyway discriminatory,

101. The provisions of section 124(5) empowers the State House of Assembly of any state to make grant of pension and gratuity to a person who has held office as Governor or Deputy Governor. It is submitted that this provision is not a prohibition provision. Rather, it merely empowers the State House of Assembly to provide for grant of pension and gratuity to the named persons. Accordingly, the specific mention of Governor and Deputy Governor cannot be a bar to the inclusion of some other office holders.

102. More crucially, the provision of section 124 (5) deals with payment of pension and gratuity. Law No. 2 of 2023 makes provision for payment of special allowances. As earlier argued, the words, pension and gratuity are not the same as allowances. Thus, assuming but not conceding that section 124(5) prohibits payment of pension and gratuity to any public office holders other than the Governor and Deputy Governor, since the payment provided for in Law No. 2 of 2023, is allowances, the same cannot be vitiated and neither can it be correctly characterized as payment of pension and gratuity envisaged and provided for in section 124 (5) of the constitution. In validation and fortification of the submission that pension and gratuity are different from allowances, and constitutional intent, counsel relied on the provision of section 124 (2)(3) which provides for payment of “remuneration, salaries, and allowances” to certain public office Holders as distinct from section 124 (5) which provides for payment of “pension and gratuity” The use of different expression, word or term cannot be said to be inconsequential or of no value. Decidedly, therefore, if the constitution had wanted to abrogate or limit payment of allowances to only the Governor and Deputy Governor, the word allowances would have been included in section 124(5). Counsel urged the court to decline the invitation of the claimants to read into section 124(5) what is not there.

103. In response to submission on discriminatory, that the law is discriminatory by the exclusion of other Honourable members, counsel submitted that the submission is self-serving, diversionary and malicious and ipso fact, untenable and unsustainable as no case of discrimination or bad faith has been established. A law is only discriminatory if it violates the principle of equality on the basis of sex, age, religion, creed, or political opinion. Discrimination exists where there is different treatment for similarly situated parties in the absence of any legitimate reason. In this case, the persons who are entitled to the special allowances are the holders of the office of Speakers and Deputy Speakers. None who has held that office is excluded. The argument that Speakers and Deputy Speakers and other members of the House of Assembly are equal and entitled to the same privileges is, with due respect, not only self-serving but not a legal argument. The two offices are not merely recognized but created by the Constitution. Further, in the National Order of Precedence of Public Officers and Other Persons Act, while the Speaker of the House of Assembly is listed as No. xxi, (twenty-one), members of the State Assembly are listed as no xxxi (thirty-One).

104. Accordingly, counsel urged this Honourable court to hold that Law No. 2 of 2023 is valid and not unconstitutional and neither is the law discriminatory or enacted in bad faith. Decidedly, the law is concerned with ultra vires legislation and not mala fides- Obayuwana v Governor (1982) 12 SC 147 at 216.

105. Issue 3: Whether considering the new name given to, the passage and assenting of, the Law known and cited as Cross River State Special Allowances for some Public office Holders Law, No. 2, 2023, the said law is valid

106. It is submitted that the validity and constitutionality of a law cannot be determined simply by its name or appellation. Further, the legislative powers conferred on the National and State House of Assembly cannot be circumscribed outside constitutional stipulations. Accordingly, the mere fact that a similar law was previously enacted, whether subsisting or repealed, cannot be a legal barometer to assess the constitutionality or otherwise of a law. Decidedly, as earlier argued, provision of allowances for the holders of the named public officials by Law No.2 of 2023 is not incompatible or inconsistent with or the violation of the provision of section 124(5) of the 1999 Constitution.

107. Counsel urged the court to resolve this issue in favour of the Defendants.

108. Issue 4: Whether in view of the judgment of this Honourable Court delivered in Suit. No. NIC/CA/117/2020: THE RT. HON. LARRY OKORI E-ODEY V THE GOVERNMENT OF CROSS RIVER STATE & 2 ORS, the Cross River State Gubernatorial Pensions Law, 2005 and the Cross River State Gubernatorial Pensions (Amendment) Law, 2015, 2018 or any other such tow were Pensions (Amendment) Law, 2015, 2018 or any other such (law were subsisting and valid that it could be repealed by Cross River State Special Allowances for Some Public Office Holders Law, No.2 of 2023.

109. It is conceded that once a declaration is made on the validity or otherwise of a law, it determines the legal status and efficacy of such law. It is however submitted that such a law does not cease to exist. Repeal of a law is a legislative and not judicial function which means official or formal revocation or withdrawal of a law by express legislative enactment. Accordingly, a law is not and cannot be repealed by the instrumentality by judicial pronouncement/ declaration of its unconstitutionality. Accordingly, the formal repeal of Cross River State Gubernatorial Pensions Law, 2005 and the Cross-River State Gubernatorial Pensions (Amendment) Law, 2015, 2018 by Law No. 2 of 2023 was not only desirable in difference to the declaration of the court but expedient being a legislative and not judicial function.

110. In concluding his submission counsel urged the court to resolved all the questions against the claimant and in favour of the 4^th – 16^th defendants and dismiss the case with substantial cost.

111. In reaction to the counter affidavit and the written address in opposition, the claimants filed further and better affidavit by the second claimant, wherein it was stated that on the 12^thday of June, 2023 the Cross-River State House of Assembly Former Members’ Forum (CRSHAFMF) resolves to institute the current suit and mandated the 1^st – 3^rd claimants to represent all, exhibit EEI 1 is the resolution of the members mandating the claimants to institute this action before this court.

112. A written address titled applicant’s rejoinder on points of law to submission of 4^th – 16^th defendants was filed. Counsel adopted it as his reply on points of law.

113. Counsel started his reply with objection to locus standi, jurisdiction and lack of authority to file this action in representative capacity.

114. On locus standi; counsel submitted that the claimants have locus to institute this action. whether it be a challenge of a law validly passed by the Cross-River State House of Assembly in the exercise of its constitutional legislative powers as provided in section 4 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). They have a cause of action, a cause for complaint calling for the determination of this Honourable Court. Their right to entitlement to allowances as some of their colleagues, the Speakers and Deputy Speakers has been violated, after it was agreed by all that certain allowances be made available to them as former political cum public officers who had loyally, dutifully and diligently served the State. Their civil rights and the obligations owed them by the 1^st and 2^nd defendants is called to question and they have the right to sue, so that the issue of their exclusion from the law be decided by the court. Under section 6 (6) (b) the court has jurisdiction to hear and determine the questions posed by the claimants in the Originating Summons. The questions being justiciable. The questions are not matter that cannot be decided by a competent court, because same borders on entitlements due them for their service or labour to Cross River State as former Honourable members, an assertion which is undeniable and incontrovertible by the 4^th – 16^th defendants.

115. Counsel submitted that the claimants have locus standi to institute this action, which invariably touches on the question of cause of action. Counsel submitted claimants have the locus standi, there being a cause of action, to institute this action. It is submission of counsel that locus standi and cause of action are inseparable siamese twins, as one result in the other.

116. A cause of action has been held in a plethora of decided cases, especially, by the apex court to denote every fact (though not every piece of evidence) which it would be necessary for the plaintiff, in our context, the claimants, to prove, if traversed, to support his or their right to judgment of the Honourable Court. In other words, it is an act on the part of the of the defendant (respondents) which gives the plaintiff (applicants) a cause of action or complained. It is the factual situation which gives rise to the right of action which itself is a remedial right. (See, EGBE V. ADEFARASIN (1985) I N’NLR (PT. 3) 549; THOMAS V.OLUFOSOYE (1986) I NWLR (PT. 18) 689; BELLO V. A.G., OYO STATE (1986) 5 NWLR (PT.45) 828; STATE 1982 1 NCLR 676;ADIMURA V AJUFO 1988 3 NWLR PT.80; OLAGBEJI V A.G. ONDO STATE (Unrepoted appeal no. FCA/B/69/82 and Savage v Uwechia (1972) 3 SC 214.

117. According to counsel, the instant case is distinguishable from the Adesanya’s case on the ground that in Adesanya’s, the court held that Senator Adesanya had no locus standi or cause for complaint in court and therefore, could not approach the court after he was beaten on the floor of the Senate where the majority voted in favour of the appointment of the 2^nddefendant as Chairman of the Federal Electoral Commission (FEDECO) by the President. In the instant case, the claimants were not beaten in any vote of any kind, save that they were totally excluded contrary to the decision taken in a Special Session of both the Executive and Legislative Arms, to make provision for allowances to cater for the health and medical needs of former members including the Speakers and Deputy Speakers.

118. Counsel submitted that the Supreme Court did not make a general rule in the said case that nobody can question the action of the President in appointing the Chairman of FEDECO or any other such appointment. In FAWEHINMI V. AKILU the Supreme Court held that Chief Gani Fawehinmi had the locus standi to apply for an Order of Mandamus compelling the learned Director of Public Prosecution to certify whether he was going to prosecute Col. Akilu and another over the death of Dele Giwa. The respondents’ argument that Cnni Fawehinmi had no locus standi was roundly rejected by the Supreme Court, as he was held to have sufficient and enough, interest in ensuring that justice was served in the murder of Dele Giwa.

119. Also in THOMAS V. OLUFOSOYE the Supreme Court again held that where there is a cause of action, the claimant is clothed with the requisite locus standi to institute action against the defendant, for where there is a wrong there is a remedy for which the court can be approached to seek redress for such wrong.

120. Counsel submitted that as deposed to in paragraphs 6 and 7 of the supporting affidavit to the Originating Summons, the claim of the claimants is premised on the violation of their legal right to the allowances due to the Speakers and Deputy Speakers, to their exclusion, being equal and co-equal, as contained in the law under interrogation. On that score the claimants have the locus standi for the invocation of the power of the Honourable Court to hear and determine the constitutionality of the law under reference in terms of making provisions for allowances for former Governors, Deputy Governors,Speakers and Deputy Speakers without all other Honourable members represented by the claimants. The claimants have sufficient interest in the subject matter of the instant dispute, assuming the Honourable Court holds that the Cross-River State Special Allowances for Some Public Office Holders Law, 2023 is valid and constitutional. (See, ADESOKAN &ORS. V. ADEGOROLU & ORS (1997) LPELR 151 (SC) , where the Supreme Court, per OGUNDARE, J.S.C P. 23, PARAS B-C, in deciding what a party must show to establish locus standi, held, thus: “It must be remembered that the issue of locus standi is not dependent on the success or merits of a case but on whether the plaintiff has sufficient interest in the subject matter of dispute’’. The eminent jurist at P. 21, PARAS F-G also opined thus: “ To determine whether the plaintiff has locus standi, it is to the statement of claim one looks, In another breath it is a query on the constitutionality of the power of the Cross River State House of Assembly to make the Cross River State Special Allowances for Some Public Office Holders Law, 2023 for former Governors, Deputy Governors, and to make matters worse, Speakers and Deputy Speakers, against the spirit and letters of section 124 (5) of the Constitution (supra).

121. Counsel submitted that the cases of ADESANYA V. PRESIDENT, FEDERAL REPUBLIC OF NIGERIA cited by the 4^th – 16^th defendants, with due respect is distinguishable from the instant case and therefore inapplicable and must be discountenanced. Rather, FAWEHINMI V. AKILU represents the current statement of the law on locus standi and we urge upon the court to follow same in deciding on the issue of the locus standi of the applicants.

122. The legislative power conferred on the 2^nddefendant to make laws for the State pursuant to section 4 of the 1999 Constitution (supra) is not exercised arbitrarily but always in tandem with the Constitution, and by no stretch of interpretation or unrestrained liberty can it be argued that the CRSHA has legislative power to enact laws for the frittering of the revenue of the State for any former public office holders in State, except as specifically provided in section 124 (5) of the Constitution, which must be nothing more than pensions or gratuity for former Governors and Deputies who were not impeached.

123. Besides, under the current dispensation of public interest litigation, a private citizen has the locus to question the actions and inactions of government, thereby making the action or suit by the applicants maintainable, assuming without conceding that their legal rights were not violated.

124. Counsel submitted that the 4^th – 16^th defendants have not filed any counter-affidavit controverting the unassailable facts deposed to by the applicants in paragraphs 6 and 7 of the affidavit in support of the originating summons. The law is that what is not denied stands admitted. The applicants have sufficient interest and recognizable rights as former members of the Cross-River State House of Assembly in the same pedestal as the Speakers and Deputy Speakers. See, ADESOKAN V. ADEGOROLU (1991) 3 N’NLR (PT. i93) 293 at 307.

125. It is submitted that the law is settled beyond peradventure, that where there is a wrong, remedy eventuates, and the person or persons so wronged can approach the court of justice to seek the remedy. Unlike in the case of ADESANYA V. PRESIDENT, FEDERAL REPUBLIC OF NIGRIA, where the Applicant was held not to have locus standi, there being no special interest of his violated, in the instant case the applicants have interest to protect and beyond that the Law (statute) passed by the CRSHA is invalid to the extent of its inconsistency with Section 124 (5) of the 1999 Constitution of the Federal Republic of Bligeria (as amended).

126. The 4^th – 16^th defendants have submitted that the claimants do not have the locus standi to institute this action, it being a challenge of a law validly passed by the Cross-River State House of Assembly (CRSHA) while exercising its constitutional legislative powers as provided in Section 4 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). In response, counsel contended that it is a misconception of the constitution (as amended) which is the grundnorm in Nigeria, to argue that once a law is passed by the CRSHA even in violation of the grundnorm that gave it life, the law is unchallengeable. Nothing can be farther from the truth, as the obvious and clear implication is that the CRSHA can do whatever it likes including taking over the powers of the other arms of government just by any piece of legislation, This line of argument by the 4^thto 16^th defendants runs foul of the clear and unambiguous provisions of Section 6 (6) (b) of the l999, Constitution of the Federal Republic of Nigeria (as amended which vests the courts with power to determine any question as to the civil rights and obligations between government or authority and any person in Nigeria and to all actions and proceedings relating thereto.

127. Section 1 (3) of the Constitution of the Federal Republic of Nigeria. 1999 (as amended) provides, thus:

“ If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be null and void.

128. Counsel further argued that assuming without conceding that the claimants have no locus standi, under the current dispensation and regime of public interest litigation, any constitutional infraction by whosoever can be litigated by persons interested in the court to right such wrongs, for to look the other way is to encourage arbitrariness in the behavior and actions of those entrusted with power for the good of the country and her people.

129. However, there is cause of action as can be gleaned from the affidavit evidence and therefore, the claimants have locus standi with the resultant effect that the court has jurisdiction to try the matter.

130. On the issue of absence of jurisdiction in the Honourable Court to hear and determine the case on the ground that it is not a labour or labour-related matter, counsel submitted that the National Industrial Court is the appropriate venue or forum for the determination of the validity of the action of the respondents in providing monthly allowances or pensions to the 4^th – 16^th defendants contrary to the clear provisions of Section I24 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Any entitlements eventuating from service to the people is labour related and the entitlements to the 4^th – 16^th defendants coloured as allowances is no exception. Issue of entitlements for services rendered is indubitably under the canopy of labour practices in the sense of whether it is a justitiable entitlement or not. The allowances therefore provided under the Cross-River State Special Allowances for some Public Office Holders Law No. 2 2023 falls under the jurisdiction of this Honourable Court, as a Labour or Industrial Court in Nigeria. In fact, the question that calls for determination is whether some public office holders’ in the law are persons who were part of the labour force of Cross River State or not. If they were part of the labour force drawing resources by way of salaries and allowances from the Consolidated Revenue Fund of the State, then any further entitlements or allowances provided for them stem from their labour to the State and can be questioned, whether it is in compliance with the Constitution, in the National Industrial Court of Nigeria, as provided under Section 254 C (1) (a) (k) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), is the appropriate court to hear and determine the case.

131. Counsel argued that whilst it is conceded that issue of jurisdiction is a threshold one that strikes at the base, foundation, root and even top root of any matter for adjudication, it is contended that contrary the submissions of the 4^th – 16^th defendants in paragraphs 3.6 to 3.8 that the National Industrial Court of Nigeria does not have jurisdiction over the issue of the allowances provided for the 4^th – 16^th defendants vis-à-vis the Governors and Deputy Governors under the Cross River State Special Allowances for some Public Office Holders Law No. 2, 2023, it is submitted that by the clear and unambiguous provisions of Section 254 C (1 ) (a), (d), (f), (g) and (k) this Honourable Court is clothed with the requisite jurisdictional competence and authority to hear and determine the questions arising from the payment of allowances, benefits or any other entitlement howsoever called to the 4^th – 16^thdefendants as political or public office holders to the exclusion of the claimants. This Honourable Court in its interpretative jurisdiction has the necessary vires to interpret the Cross River State Special Allowances for some Public Office Holders Law No. 2 2023 made for the 4^th – 16^th defendants, among others, vis-à-vis Section 124 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the enabling law conferring the Cross River State House of Assembly to make a law for pensions or gratuities exclusively for Governors and Deputy Governors that would be drawn from the Consolidated Revenue Fund of the State.

132. Counsel submitted that the argument of the 4^th- 16^th defendants that the 1^st to 3^rd claimants have no employment relationship with the 1^st to 3^rd defendants Honourable Members of the Cross River State Houses of Assembly misses the point, for that also implies that the 4^th to 16^th defendants do not also have any employment relationship with 1^st to 3^rd defendants, assuming without conceding, and should be discountenanced as they were the political or public office holders contemplated by the Constitution in Section 254 C (1) (k) which explicitly places such issues relating to or connected with disputes arising from payment or non-payment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public office holder, judicial or any civil or public servant in any part of the Federation and matters incidental thereto within the ambience of the jurisdictional power of the National Industrial Court of Nigeria. What is more, the Constitution in the aforesaid section provides that matters incidental to the enumerated items are also within the judicial authority and power of the court to hear and determine, as in the instant case. This is again fortified by the fact that, if the Constitution allows allowances incidental to service by public office holders like the Speakers and Deputy Speakers, then it also applies to all former members of parliament in the Cross-River State House of Assembly represented by the claimants. And such constitutional interest being violated or breached to their detriment is substantial and tangible. It is not vague, caricature or intangible. The applicants therefore, have such an interest both by the Constitution and any law validly made by the House of Assembly. To support this view counsel relied on the cases of Inakoju v Adeleke (2007) 4 NWLR (PT. I025) 423; Charles v Gov. Ondo State (2013) 2 NWLR (PT. 1338) P. 294 @ P. 298.

133. As decided in NATIONAL ASSEMBLY V. PRESIDENT, FEDERAL REPUBLIC OF NIGERIA & ORS. (2003) 9 NWLR (PT. 824) P. 104 @ 118-119, on what a party challenging the constitutionality of a statute must show, it is submitted that the applicants who are on one side challenging the constitutional validity of the Cross River State Special Allowances for some public Office Holders Law, No. 2, 2023, have shown that the said law deny them from enjoying the same allowances as their colleagues who are called presiding officers or Speakers and Deputy Speakers, who were all in agreement that allowances be provided for their medicals, especially, having all served the State in their capacities as Honourable members. Therefore, apart from showing that the Law, No. 2 of 2023 is invalid by reason of it becoming a pension law for both Governors and their Deputies on one side and Speakers and their Deputies on the other hand (who are constitutionally not entitled pursuant to section 124 (5), assuming the law were valid it infringes on the applicants’ right to the enjoyment of the said allowances as their colleagues, the Speakers and Deputy Speakers. The case rather supports the assertion of the claimants against the 4^th – 16^th defendants.

134. Counsel submitted that Law No. 2, 2023 of Cross River State is invalid, not being passed in accordance with section 124 (5) of the 1999 Constitution (as amended) and the court is allowed to make a pronouncement on it. In support of this submission counsel placed reliance on the decision of the Supreme Courtin A.G. BENDEL STATE V. A.G. FEDERATION & ORS (1981) LPELR – 605 (SC) per IDIGBE, J.S.C. Pp. 87-88, PARA. A, thus:

“I am not impressed with the argument that once a certificate is issued by the Clerk of the National Assembly pursuant to the provisions of Section 2 of Act No. 50 of 1961, Acts Authentication Act, 1961 with respect to any particular enrolled Act, this Court is precluded, in proceedings which specifically seek a pronouncement by this court on the constitutional validity of such an Act, from going behind the certificate in order to make the necessary enquiry. The Legislature,it has been said, “has no right to violate those positive constitutional restrictions, and then to say to the court,whose duty it is to determine whether or not an Act is constitutional, ‘you cannot go behind an enrolled Bill and consider the legislative history of an Act for the purpose of determining whether or not we violated any constitutional provisions.’ By drawing such an iron curtain around its transactions, the Legislature is usurping the functions of thejudiciary and is preventing it from properly performing the duties placed upon it by the Constitution. See ROEHL V. PUBLIC UTILIT DISTRICT NO. 1 OF CHELLAN COUNTY, WASHINGTON (1953) 43 WASHINGTON 2^ND ED. 214…”

135. Counsel submitted again, that the illuminating opinion of OBASEKI, J.S.C. in A.G. BENDEL STATE V. A.G.FEDERATION & ORS. P. 117, PARAS A-D (supra) supports our contention that the legislature does not have unrestrainable latitude in its legislative businesses, thus:

“In the exercise of the legislative powers, the legislatures are not left at large and allowed to breach the Constitutional provisions without question. Section 4 (8) of the Constitution makes them answerable to courts of law or judicial tribunals established by law for any allegation of breaches of the Constitution in the exercise of their legislative powers by its provisions which reads: “Save as otherwise provided by this Constitution, the exercise of legislative powers of the National Assembly or by a House of Assembly shall be subject to the jurisdiction of the courts of law and of judicial tribunals and accordingly, the National Assembly or a House of Assembly shall not enact any law that ousts or purports to oust the jurisdiction of a court of law or of ajudicial tribunal established by law.”

136. Counsel submitted that judgments of courts create law, and such law is no doubt only as between the parties to the litigation and their privies. It does not bind parties outside the group, even if the same issues arise, therefore, as it concerns the Cross-River State House of Assembly that was a party in SUIT NO. NICN/CA/117/2020, the issue of their lack of constitutional powers to make provisions of allowances or pensions or gratuities in favour of Speakers and Deputy Speakers already decided by a competent court, they are bound by that decision. See P.N.UDOH TRADING CO. LTD V ABERE (2001) FWLR (PT.57) P. 900 @ P. 908, Ratio 9. Furthermore, what the learned Law Lord, OGUNDARE, J.S.C @ PP.935-936, PARAS. H-C, opined, is thus:

“…The decision of a court does not repeal a statute, it only pronounces on the validity or otherwise of the statute. Anyone adversely affected by the statute would still need to institute an action to have a declaration in his favour.’’

137. It is submitted that the claimants are on a firm ground to approach the Honourable Court to pronounce on the constitutional validity of the Cross-River State Special Allowances for some Public Office Holders Law No. 2, 2023.

138. On the contention by the 4^th – 16^th defendants that a court judgment can be overridden by a subsequent legislation, it is submitted that it is not in all cases, but when such legislation is intended to cure a mischief or plug an observed loophole in the decision of the court. Counsel urged the court to disregard and discountenance the submissions of the 4^th to 16^th defendants that this court does not have jurisdiction to entertain this case as not availing them, same being a misconception of the constitutional power conferringjurisdiction upon this court in cases as this nature.

139. On the issue of the representative capacity of the claimants to institute this action for themselves and on behalf of the former members of the Cross River State House of Assembly (CRSHA) to the exclusion of the 4^thto 16^th defendants, it is submitted that the claimants have the capacity to represent all former members of the Cross River State House of Assembly, their interest being the same, and especially, when none amongst them has come out to challenge the claimants as not representing his or her interest in the matter. On this submission reliance was placed on Order 13 Rule 11 (1) of the National Industrial Court (Civil Procedure) Rules, 2017 dealing with action by numerous persons having the same interest in one suit provides, thus:

“Where there are numerous persons having the same interest in one suit, one or more of such persons may sue or be sued on behalf of or for the benefit of all persons so interested.”

140. Counsel submitted that the above rules did not provide that in a representative capacity suit, evidence of authority to sue must be shown as wrongly contended by the 4^th to 16^th defendants. It is enough that in paragraph 3 the deponent had deposed as having the consent of other claimants and all former members except the 4^th to 16^th defendants to institute this action. In MELWONWU & ORS. V. EGBUJI& ORS. (1982) 9 S.C. 145 the Supreme Court held that all is required of the applicants is to satisfy the court that the other members with common interest authorized them even impliedly which can be gleaned from paragraph 3 of the supporting affidavit to the originating summons. The argument of the 4^thto 16^th defendants to the contrary is of no moment and should be discountenanced as not availing them.

141. It is submission of counsel that raising of the issue of the capacity of the claimants to bring this action in a representative capacity for and on behalf of all other former members of the CRSHA to the exclusion of the 4^th to 16^th defendants, ought not to come in their argument but by way of a preliminary objection duly filed by them. In MELJFONWU & ORS’ Case (supra) the Supreme Court held very lucidly on when a preliminary objection should be raised, thus;

‘’The law has long been settled that a defendant is entitled to question the plaintiff’s authority to bring an action provided that the defendant raises the question by way of preliminary objection on a motion and not by way of defence.” See RUSSIAN COMMERCIAL AND INDUSTRIAL BANK V. COMPTOIR D’ESCOMPTE DE MULHOUSE (1925) AC 112. Per BELLO, J.S.C. (P.17, PARAS. A-B).

142. Counsel submitted in the same MELIFONW U’s case, BELLO, J.S.C, (as he then was) also stated the law eloquently, when he held, thus:

“…I would respectfully adopt the view expressed by IDIGBE J. (as he then was), in NSIMA V. NNAJI (1961) ALL NLR 441 at 443 that disgruntled elements dissenting from a general authorization of a group ought not to be permitted to frustrate the common interest of the group. It is only when it is shown that there has been a substantial opposition to representation by members of the group that the plaintiff may be denied representation.

143. Counsel submitted that generally, the court is seized with jurisdiction to entertain this suit, that is competently before it. Every argument and authorities cited to the contrary by the 4^th to 16^th defendants should be disregarded and discountenanced. While the principles of law enunciated by the Supreme Court, etc in the cases of OLOBA V. AKEREJA (1988) 3 NWLR (PT. 84) P. 508 at 520; GOLDMARK NIG. LTD V. JBAFON CO. LTD (2012) 10 NWLR (Pt.291); (2013) FWLR (PT. 663) P.l; SULE V.KABIR (2011) 2 NWLR (PT.1232) P. 515 at 524; AJAYI V. ADEBIYI (2012) 11 NWLR (PT. 1310) P.137; TRADE BANK PLC V.BENILUX NIG. LTD (2003) 9 NWLR (PT 825) P. 416; ONUORAH V. KRPC LTD (2006)6 NWLR (PT. 921) P. 393; ADEYEMI V. OPEYORI (1976) 9 – 10 S.C P. 31; ADEYEMI V. ODITI (2006) 6 NWLR (PT. 977) P. 587; GAFAR V. GOVT. K WARA STATE (2007) 4 NWLR (PT. 1024) P. 375; and TUKUR V. GOVT. GONGOLA STATE (1989) 4 NWLR (PT. 1l7) P. 519 remain a correct statement and re-statement of the law on jurisdiction, they do not apply to the instant case.

144. In reply on points of law which counsel tagged as rejoinder on points of law, issues 1, 2 and 3, were taken together.

145. Counsel submitted the three issues are inter-related and inter-connected. In reply to argument that the issue of whether in view of the judgment of this Honourable Court delivered in SUIT NO, NICN/CA/117/2020: THE RT. HON. LARR Y OKORIE-ODE Y V. THE GOVERNMENT OF CROSS RIVER STATE & 2 ORS., the Cross River State House of Assembly has the constitutional legislative power, authority and/vires to enact the Cross River State Special Allowances for some Public Office Holders Law, No. 2, 2023, etc, as not evidently self-serving and misleading as erroneously contended by the 4^th to 16^th defendants. According to counsel the contention of the claimants is not that the legislative powers of the Cross River State House of Assembly to make laws for the peace, order and good government of the State is circumscribed, limited, superseded, overridden by the judgment aforesaid, but specifically, on the making of provisions for allowances for Speakers and Deputy Speakers pursuant to Section 4 (7) of the 1999 Constitution (as which provides, thus: “ Any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.”

146. It is submission of counsel that the provision of allowances for some public office Holders being not one of the items the State House of Assembly of Cross River is empowered under Part 11 of the 2^nd Schedule of the Constitution, 1999 (as amended) to make laws, the Cross-River State Special Allowances for some Public Office Holders Law, No. 2, 2023 has no constitutional foundation for its passage into law. Whilst the law making power of the Cross River State House of Assembly is not limited by any judgment of a court of law, as it were, once a pronouncement has been made on an issue that has been ventilated before a court of law and decided upon, the doctrine of issue estoppel arises in relation to the parties in the case, and as a binding precedent in a subsequent action where similar issue is being called for decision, Once the Cross River State House of Assembly passes a law and it is assented to, the judicial power of the court under section 6 (6) (b) can be invoked to interrogate the constitutional validity of it, and where as in the case of RT. HON. LARR Y OKORIE-ODE Y V. GOVERNMENT OF CROSS RIVER STATE & ORS. (supra) a competent court has made a pronouncement on the nullity of a pension provision for the applicant as per his office as Speaker of the Cross River State House of Assembly, that decision becomes not only a persuasive, but binding authority in another case except set aside on appeal. Any law made by the House of Assembly must at all times be within its constitutional legislative ambience or it suffers a brutal stroke from the judicial pens of judges when interrogated, as was done before and we are seeking to do again.

147. Counsel contended the 4^th to 16^th defendants citing BOYE V. ADEYE YE (2012) 12 NWLR (PT. 1314)P357 and LAKANMI V. A.G. WESTERN NIGERIA (1’970 NSCC P. 143 have argued that a legislation can be valid, constitutional And unimpeachable even if it is a direct opposite of the decision of a court of law and further thereto, that a court judgment can be overridden by subsequent legislation, that is, Government can by legislation re-verse or nullity a court judgment, and to that extent the validity of Law No. 2, 2023 of Cross River State must be determined by its compliance with the Constitution of the Federal Republic of Nigeria, (as amended) and not the judgment of the court including the decision of the National Industrial Court in NICN/CA/117/2020.

148. Counsel submitted even if the parliament can validly enact a law, the jurisdiction of court at all material moments to interrogate the constitutionality of the law is not ousted in a democratic dispensation on the basis of the principle of checks and balances to curtail the arbitrariness and excesses of the legislature. Lakanmi’s Case was decided during the Military era when arbitrariness was the order of the day with no checks and balances in government. In fact, applying the purposive rule of interpretation of statutes to Law No. 2, 2023, it is evidently clear that the intention and purpose of the Cross-River State House of Assembly was to make provision on a monthly basis for the same Speakers and Deputy Speakers that have been struck down by the judgment of the court. It is on this score, that the court is constitutionally empowered to look into the activities of the legislature when the need arises. The above two cases cited are therefore, not authorities for arguing that the constitutional validity of Law No. 2, 2023 cannot be questioned, even drawing as it were from the earlier decision of the court to the effect that Speakers and Deputy Speakers are not meant to be provided with monthly allowances or take home or pension, same lacking in constitutional foundation.

149. Counsel submitted that the argument in paragraph 4.4. that Law No. 2 of 2023 does not make provision for pension but special allowances, and according to the 4^thto 16^th defendants it would be a grave subversion of legislative intent to appellate or construe the plain words “pension or gratuity” as meaning allowances, is to say the least, is semantical and amounts to saying that six (6) and half a dozen are different. Going further, counsel submitted that what is the foundational platform for the enactment of Law No.2 of 2023 if it does not rest on section 124 (5) of the 1999 Constitution (as amended). If pension or gratuity is constitutionally allowed Governors and Deputy Governors as against Speakers and Deputy Speakers, which part of the Constitution allows special allowances for Governors, Deputy Governors and Speakers and Deputy Speakers? Section 124 (1), (2) & (3) of the 1999 Constitution (as amended) relied upon by the 4^th to 16^th defendants as foundation for the House of Assembly to enact Law No. 2 of 2023 is totally a misconception and misunderstanding of what it provides for. Section 124 (4) 1999 Constitution (as amended) which enumerates the offices entitled to salaries and allowances, clearly states, thus:

“The offices aforesaid are the offices of Governor, Deputy Governor, Auditor-General of a State and the Chairman and members of the following bodies, that is to say, the State Civil Service Commission, the State Independent Electoral Commission and the State Judicial Service Commission.”

150. These remunerations, salaries and allowances mentioned are due them while in service and not after service as is the case with Section 124 (5) and nowhere in the said provisions are Speakers and Deputy Speakers mentioned.

151. The cases of VICTORIAN CHAMBER OF MANUFACTURERS V. THE COMMON WEALTH (1943) 67 C.L.R. 4l3 at 427; A.G. BENDEL STATE V. A.G. FEDERATION (1981) 10 S.C 1; UTB NIG. LTD V, INNOCENT C. UKPABIA &ORS. (2001) FWLR (PT. 51) 1889 at 190l; IGNATIUS UDEH V. FEDERAL REPUBLIC OF NIGERIA (2001)FWLR (PT. 61) 1731 at 1745; and KRAUS THOMPSON ORGANISATION V NATIONAL INSTITUTE FOR POLIC Y AND STRATEGIC STUDIES (2004) ALL FWLR (PT. 218) 797 at 809, while stating the correct principle of the law on clear and unambiguous provision being given their plain and ordinary grammatical construction, it is submitted that they do not apply to the instant case in terms of interpreting Law No. 2, 2023 as whether pension, gratuity and allowances mean the same thing. Section 124 (5) 1999 Constitution (as amended) clothes the House of Assembly with power to make a law for provision of either pension or gratuity for Governors and Deputy Governors not impeached, after their tenures, it does not include Speakers and Deputy Speakers. The law is settled that what is not included in a legislation is deemed excluded. The offices of members of the State House ofAssembly which includes Speakers and Deputy Speakers are creation of the Constitution and it is of no moment that the Speakers and Deputy Speakers being first among equals, are listed before the members in the National Order of Precedence of Public Officers and Other Persons Act. This does not entitle them to different treatment, even outside the constitution. Law No.2, 2023 remains a non-starter for breaching the provisions of the Constitution of Nigeria, 1999 (as amended), the grundnorm. The intendment and purpose of the legislature in enacting a 1aw remains a critical factor in all law making and if the intendment and purpose is against the constitution and public policy then it remains unconstitutional and the court must be invited to so declare it. The purpose a law is meant to serve underscores the name of the law. A new law cannot serve the same purpose of the one that has been held to be invalid and same is allowed to stand.

152. Counsel urged the court to discountenance the submissions of the 4^th to 16^th defendants on the 3 issues and uphold the arguments of the claimants and resolve the issues in their favour.

153. Issue No. 4; the 4^th to 16^th defendants having partially agreed with the claimant’s submission on the repeal of the Cross-River State Gubernatorial Pension Law, 2005 and the Cross-River State Gubernatorial Pensions (Amendment) Law, 2015 and 2018 respectively even after the court had held same invalid and bad in law, puts paid to the existence, subsistence, validity and extantness of the aforesaid pieces of legislation. The judgment of the court being a precursor and forerunner to the formal repeal of those laws aimed at putting aside a law (s) that violate the provisions of section l24 (5) of the Constitution, I999 (as amended) by the inclusion of Speakers and Deputy Speakers.

154. In concluding his submission counsel urged the court to resolve all the questions for determination in this originating summons in favour of the claimants and disregard all contrary submissions by the defendants.

COURT’S DECISION:

155. I have considered the originating summons commencing this sut as well as all the processes filed by the parties.

156. The claimants as formers elected legislators that have at one time or the other served as members of the Cross River State House of Assembly, were aggrieved by their exclusion from the Special Allowances for Some Public Office Holders Law, No. 2 of 2023, passed by the House of assembly making provision for monthly allowance for the Governor, Deputy Governor, Speakers and Deputy Speaers of the Cross River State, but excluding members of the House of Assembly.

157. The 1^st to 3^rd defendants supports the claimants’ action. Consequently, they did not object the reliefs being sought save relief 4.

158. The 4^th to 16^th defendants being beneficiaries of the Special Allowances for some Public Office Holders Law No. 2 of 2023, vehemently opposed the claimant’s action. Apart from opposing the claim of the claimants, the 4^thto 16^th defendants raised objection to the competency of the action on three grouds. Namely: -

1. Lack of locus standi to initiate this action,

2. The subject matter is not within jurisdictional competence of this honourable court, to hear and determine, not being a labour dispute but purely a constitutional matter and,

3. The Claimants have no authority to institute this action in a representative capacity, thus rendering the suit incompetent.

159. On locus standi counsel for the 4^th to 16^th defendants has argued that the claimants do not have locus standi to challenge a law validly passed by the Cross-River State House of Assembly in exercising its constitutional legislative powers as provided in section 4 of the 1999 Constitution (as amended). Counsel further argued there is no assertion of violation of any legal right, whether constitutional, statutory or contractual or invocation of the supervisory jurisdiction of the court to protect any imminent breach of any rights, privileges and entitlements of the claimants. Rather, it is a challenge of the constitutionality of the Law duly passed by Cross State House of Assembly, that is Cross River State Special Allowances for Some Public Office Holders, Law, No. 2, 2023. Counsel maintained that this action is not maintainable by the claimants, since they are not asserting any breach or potential breach of their legal rights.

160. In their response the claimants insisted that they have requisite locus standi to institute this action, whether it be a challenge of a law validly passed by the Cross-River State House of Assembly in the exercise of its constitutional legislative powers as provided in section 4 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), since, they have a cause of action, a cause for complaint calling for the determination of this Honourable Court.

161. The term locus standi denotes legal capacity to institute proceedings in the court of law and is used interchangeably with terms like ‘standing’ or ‘’title to sue’ see Senator Abraham Adesanya v President of the Federal Republic of Nigeria & Anor. (1981) 5 SC 11, Ogunsanya v Dada (1992) 4 SCNJ 162. It has also been defined as right of a party to appear and be heard on the question before any court or tribunal. See Senator Abraham Adesanya v Presdent Federal Republic of Nigeria (supra) per Bello JSC (as he then was) Gombe v P.W. (Nig.) Ltd (1995) 7 SCNJ 19 @ 32. It is the right or competence to institute proceeding in acourt for redress or assertion of a right enforceable at law. Per Irikefe JSC as he then was) in AG Kaduna State v Hassan (1985) 2 NWLR (Pt.453, Adefulu v Oyesile (1989) 5 NWLR (pt. 377 @ 418.

162. For a person to have locus standi, he must have valid cause of action that will give rise to a relief(s). That is to say the reliefs claimed would confer some benefit on the party. See Buraimoh Oloriode & Ors v Oyebi & Ors (1984) 5 SC 1 @ 16. The benefit must be personal peculiar to the party. Senator Abraham Adesanya v President Federal Republicof Nigeria (supra). There must be a dispute between a person who makes a claim and the one against whom the claim is made and the action must be justiciable. AG Kaduna State v Hassan (supra).

163. In ascertaining the existence or otherwise of locus standi to institute an action, is to see to whom the enforceable right in the cause of action is vested, because where a claimant has no locust standi the court has no business delving into the case. The court is obliged to strike out the case. The court is obliged to consider the clam of the claimant in considering issue of locus standi. This is done by looking at the facts, if they disclose a cause of action, the claimant is vested with locus standi to ventilate his grievances.

164. However, it must be noted that locus standi does not depend on the success or merit of a case but on whether the claimant has sufficient interest in the subject matter of the disute. See Adesokan v Adegorolu 1997) 3 SCNJ 1 @ 16.

165. The importance of clamants having locus standi is further underscored by section 6(6)(b) of the Constitution of the Federal Republicof Nigeria, 1999, as amende. The section read.

"6(6) The judicial powers vested in accordance with the foregoing provisions of this section-

(b) shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of the person".

166. The above quoted section places emphasis on the civil rights and obigations of the person suing and deals with locus standi and material to it. See Thomas v Olufosoye (1986) 1 NWLR (Pt.6) 69. This clearly shows that the right to action in court is also a constitutional right exercisable by the person who has complaints touching his cvil rights and obligation against another person, government or authority.

167. Having locus standi is, in Nigeria, a constitutional requirement in order to enable a person to maintain an actin and is limited to the prosecution of matters relating to the civil right and obligation of the claimants.

168. In the case at hand the clamants have stated that they ae former legislators of the House of Assembly of Cross River state, that sometine in 2023 a meeting was held while they were in office between the then State Governot Professor ayade and the legislators where it was agreed that a law will be paased to make provisions for payment of allowances to the Gvernors, Deputy Gvernors, Speakers, Deputy Speakers and the lgislators. However, when the law was passed and assented to the members of the House of Assembly were excluded from the special allowances meant to take care health need of the beneficiaries. According to the claimants being elected members like the Speaker and Deputy Speaker they are also entitled to benefit from the special allowances and failure to include them amount to discrimination as they are equals with the speakers and deputy Speakers. They also alleged that the Special Allowance Law No. 2, of 2023 amount to resuscitaton of the Governotorial Pension Law nullified by court in the judgment of this court in suit no. NICN/CA/117/2021, delivered on 27/5/2021.

169. The counsel for the 4^th to 16^th defendants has stoutly argued that challenging a law is within a realm of public law and not private law the claimants lack locus to challenge validity of legally passed and assented law by the House of Assembly.

170. It is true in public law for a claimant to have locus statndi to institute an action, such a party must show to the court he has interest or suffered injury above that of the publc.

171. For counsel for the claimants the frontiers of locus standi has been widened by the decision n the case of Fawehinmi V Akilu (supra). Counsel concluded by saying that the cases relied by the defendants are not applicable to the case at hand as they are not on all fours with the case under consideration.

172. Let me say here that the case of Fawehinmi v Akilu is also not on all fours with the case at hand as that case deals with issue of mandamus for fiat to prosecute a crime. While the case at hand is challenge to a law passed by House of Assembly.

173. In Owodunmi v Registered Trustees of Celestial Church (2000) FWLR (Pt.9) 1455 @ 1479-1480, the Supreme Court held that the determinant of locus standi of a party in public law is whether his interest or injury in the acion exceeds that of the general public, and, in private law, whether the reliefs claimed would confer some benefit on hm. On section 6(6)(b) of the constitution, it was held that the section basically defines the judicial powers of the cours and does not deal with locus standi.

174. It is clear from the appraisal of the decisions of the courts that the fundamental aspect of locus standi is that it focuses on the party asking to get his complaint before the court on the issues he wishes to have adjudicated. Therefore, the court has the bounden duty to satisfy itself that a claimant in the case under consideration has locus standi to institute the proceedings before the court, before proceeding to hearing see Adesanya v. President of Nigeria (1981) 2 NCLR 358; Ajao v. Sonola (1973) 5 SC 119; Gamioba v. Esezi (1961) 2 SCNLR 237; Fawehinmi v. Akilu (1987) 4 NWLR (Pt67) 191; Adefulu v. Oyesile (1989) 5 NWLR (Pt.122) 377.

175. It is trite that the locus standi of a claimant is a crucial matter touching on the competence and the jurisdiction of the court to adjudicate on the suit before it. It is a fundamental jurisdictional question that can be raised at any time during the trial as a preliminary issue or even raised for the first time on appeal. Thus where a jurisdictional issue is raised, the court is obliged to determine or dispose of it before going into the merits of the case. See Momoh v. Olotu (1979) 1 All NLR 117; Adesanya v.President of Nigeria (1981) 2 NCLR 358; Adefulu v.Oyesile(1989) 5 NWLR (Pt.122) 377 at 410; Ojukwu v. Kaine (1997) 9 NWLR (Pt.522) 613 at 628 and Gamioba v. Esezi (1961) ANLR 604; (1961) 2 SCNLR 237.

176. There is nothing esoteric in the phrase or term locus standi. It is no more than having sufficient interest in a cause or matter, to be litigated upon. See Adesanya v. The President (1981) 2 NCLR 358.

177. As pointed out earlier in this judgment, the doctrine of locus standi denotes the capacity of the party suing in an action, to institute such an action. That is, it is the party who believes that he or she has been wronged or about to be wronged by the act of another person, that can institute judicial proceedings in a court of law against the latter, the wrong doer. A person will have legal capacity to sue in a matter where it has been clearly shown to the court that his right or obligations have been or are bound to be, or are in imminent danger of being, violated or invaded or adversely affected by the act complained of. See Odeneye v. Efunuga(1990) 7 NWLR (Pt. 164)618.

178. In the case at hand the claimants having shown that they are former members of the State House of assembly and if the 1^st to 3^rd defendants are allowed to implement the provisions of the Speacial Allowance for Public Office Law N. 2 of 2023, they would be be discriminated since they are all legislators as the Speaker and deputy Governors, the claimant have clearly demonstrated having sufficient interest for they to be allowed to ventilate their grievances. In the circumstance I find and hold that the claimants have locus standi to bring this action.

179. On jurisdiction, the defendants are of the view that this court laced jurisdiction to entertain this suit as the subject matter of dispute is constitutional and not within the realm of labour or employment dispute.

180. The claimants on their part have argued that this court has jurisdiction to hear and determine this suit, as allowances is same with pension and gratuity.

181. Jurisdiction is at the core of judicial adjudication and confers legitimacy on all proceedings before a court of law, without which the proceedings would be a nullity, regardless of how well conducted the proceedings and how brilliant the judgment of the court. See Inakoju v. Adeleke (2017) 4 NWLR (Pt.1025) Pg.423 @ pg. 588 Paras E-H; In Ladojav INEC (2017) 7 NWLR (Pt.1047) 1, the Supreme Court stated thus:

‘’Jurisdiction is a radical and crucial question of competence because if the court has no jurisdiction to hear the case, the proceedings are and remain a nullity ab initio, however well conducted and brilliantly decided they might be,as a defect in competence is not intrinsic, but rather extrinsic, to the entire adjudication. Jurisdiction is the nerve centre of adjudication; it is the blood that gives life to the survival of an action in a court of law in the same way blood gives life to human beings and the animal race’’.

182. Courts being creatures of the constitution and statutes have their jurisdiction circumscribed by the constitution and statute establishing them. Therefore, the jurisdiction of the National Industrial Court of Nigeria is as donated to the court by the constitution and statute establishing the court. The jurisdiction of the court is expressly provided for in Section 254C of the Constitution of the Federal Republic of Nigeria 1999, as amended. This provision clearly stipulates that the jurisdiction of the court over matters listed thereunder shall be to the exclusion of any other court and shall extend to all areas of labour, employment and industrial disputes.

183. The provision of section 254C(1) (k) is relevant to the consideration of the subject matter of dispute in this case. The section provides:-

Section 254C(1) provides as follows:

Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in a civil causes and matters

184. Relating to or connected with trade disputes arising from payment or non-payment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto;

185. A cursory look at the above quoted provision of the constitution will show that the subject matter for consideration in this case falls squarely within the purview of the listed subject matter of the items of jurisdiction of this court. Section 254C(1) (k) has in plain and unambiguous term conferred jurisdiction on this cour to deal with issue of allowance of political and publicoffice holders. The provision of the Speacial Allowances Public Office Holders Law No. 2, of 2023 passed by the Cross River State house of Assembly is without any equivocation falls withn the items of he subject matters of the jurisdiction of this court.

186. The counsel for the 4^th to 16^th defendants has made heavy weather on absence of employer employee relationship. The position of counsel seems to be not in tune wth crrent labour and employment jurisprudence, as it is not in all cases that dispute coming before the NICN must involved employer employee. There are certain categories of person though not in real employer employee relationship will still be considered as proper parties to approach NICN for resolution of grievances. The category of such person include political and public office holders who rendered services as not in actual employer employee relationship. Therefore, elected officers or official that served in government are one of such category of persons and host of others that do not need mention herein.

187. In approaching NICN for resolution of dispute the paramount consideration id the subject matter of dispute. The Abuja Division of the Court of Appeal has recently in its decision recognized that even in the absence of employer employee relationship a party may approach this court for redress. See Nwagbo &Ors V. National Intelligence Agency (2018) LPELR-46201(CA).

188. In vew of the foregoing, the objection on jurisdiction of this court to hear and entertain this suit is misconceived same is hereby dismissed.

189. The last ground of objection to the jurisdiction of this court is predicated on alleged absence of authority or authorization of the claimants to sue in representative capacity. The law iswell settled that a representative action is appropriate where;(a) those represented have a common interest and a common grievance; and (b) the relief sought is, in its nature, beneficial to all those whom the plaintiff is representing. In other words, the persons who are to be represented and the persons representing them must have the same interest, common interest or common grievance. See Busari v. Oseni (1992) 4 NWLR (Pt. 237) 557.

190. For an action to be sustained in a representative action, it is essential that the persons who are to be represented and those representing them should have the same interest and not merely similar interest in the suit. In other words, a representative action would be appropriate if the interest as well as the grievance is common, provided that the relief sought in the action is in its nature beneficial to those whom the plaintiff/claimant represents. In the instant case, the former legislators or members of Cross River State House of Assembly who are represented by the three claimants were not included like the claimant as beneficiaries of the Special Allowances Public Office Holders Law No. 2 of 2023, therefore, they have common interest with the interest of the claimants representing them in this suit. See Adefulu v. Oyesile (1989) 5 NWLR (Pt.122) 377; Ighedo v. P.H.C.N. Plc (2018) 9 NWLR (Pt. 1623) 51.

191. In view of the fact that the claimants on records and those represented have common interests and common grievances, the representative action is properly constituted and the defendants who are not beneficiary of the reliefs being sought by the claimants are not allowed to challenge the claimants’ capacity to sue in a representative capacity for themselves and on behalf of others. This kind of challenge does not lie in the mouth of defendants who have nothing to share in the victory, if, any at the end of the litigation. The law is trite once the claimants expressed on the originating process or statement of facts that the action was brought in a representative capacity, it is prima facie, though not conclusive, evidence of authority by their group, family or community to sue in that capacity. It is only a member of the group, family or community who can dispute, intervene or challenge the proper representation or the capacity in which the plaintiffs sued. See Alikor v. Ogwo (2019) 15 NWLR (Pt. 1695) 331.

192. The 4^th to 16^th defendants by this objection seems to tow a wrong path to justice on how to challenge the authority of claimants to bring a representative action, this is because such a challenge can be by way of preliminary objection on notice and not by way of defence. The only way the 4^th to 16^th defendants can successfully challenge the capacity of the claimants to initiate a suit is by way of preliminary objection. See Anabaronye v. Nwakaihe (1997) 1 NWLR (Pt. 482) 374; Elf Pet. (Nig.) Ltd. v. Umah (2018) 10 NWLR (Pt. 1628) 428; Ifonwu v. Egbuyi (1982) 9 S.C. 145; Busari v. Oseni (1992) 4 NWLR (Pt. 237) 557; Amadike v. Gov. of Imo State (1993) 2 NWLR (Pt. 275) 302; (1993) 2 NWLR (Pt. 275) 302.

193. From all I have been saying above the objection of the 4^th to 16^th defendants to the competency of this suit on the three grouds of objection failed due to lack of merit, the objection is accordingly dismissed.

194. Coming to to the determination of the four questions submitted by the clamants for resolution by the court, it is clear to me that the claimants are dissatisfied with their exclusion from the persons listed as beneficiaries of the Special Allowance for some Public Office Holders Law No. 2, of 2023, enacted by the Cross River State House of Assembly (2^nd defendant).

195. The grouse of the claimants, is that it was agreed among former and incumbent members present at a special session with the then executive governor Sen. (Prof.) Ben Ayade in attendance that some special allowances be provided for former members of Cross River State House of Assembly including the speaker and deputy speakers in the said law to carter for the health of former Hon. Members. However, when the bill was passed into law, all formers members of the House of Assembly except the speakers and deputy speakers were excluded, invariably making it look like another Gubernatorial Penson Law meant for Governors, Deputy Governors, Speakers and Deputy Speakers, which law had earlier on been invalidated and rendered null and void by the decision of this court deliverd on 27/5/2021, in suit no. NICN/CA/177/2020: Rt. Hon. Larry Okori-Odey v The Governor of Cross River State & 2 Ors.

196. The claimants have strongly argued that the Law No. 2, of 2023 is an attempt by the legislators to bring back the Governotorial Pension Law nullified by this court in sut no. NICN/CA/117/2021 the judgment of which was delivered on 27/5/2021. Counsel insisted by the judgment of this court the Cross River State House of Assembly lacks the constitutional legislative power, authority and or vires to enact law no 2 of 2023, which is a replica in substance and spirit with the Cross River State Governatorial Penion law, 2005, 2015 and 2018 whch have been nullified by the judgment of this Honourable court. Counsel submitted that the Special Allowances for some Publc Offce Holders Law No. 2, of 2023, is null and void for being in conflict with section 124(5) of the 1999 Consttution as amended. Counsel maintained that the special monthly allowances provided unde the law no 2 of 2023 is nothing different from pension which clearly is inconsistent and in conflict with the lucid provision of section 124(5) of the Constitution as amended. Counsel iterated that the House of Assembly has gone beyond its power in enacting law no 2 of 2023, as the constitution recognise making provision for Governor and Deputy Governor and no more.

197. The counsel for the 1^st to 3^rddefendants supported the case of the claimant by adopting the claimants’ submission and went on to argue that the law was not validly made. Counsequently counsel urged the court to grants reliefs sought by the claimants save relief 4

198. The defendants on their part are of the view that no decision of court can divest or circumscribed the power of the legislature under the constitution to make law. They also argued that the Special Allowance law was dully passed and assented to after having passed through the process of passing law. The law having been duly passed into law after public hearing is valid and cannot be invalidated. Counsel also argued that legislation can nullify decision of court as it was done in Lakkani’s case and that of Boye v Adeyeye (2012) NWLR (Pt.1314).

199. The counsel for the claimants has in his reply on points of law seems to agree that Judgment of court cannot circumscribed the power of the legisature to make law, if, the law is within the purview of the legislative competence.

200. The claimants’ insistence that the judgment of this court in suit no. NICN/CA/117/2020 has rendered the enactment of the Special Allowances for some Public Ofiice Holders Law No. 2 of 2023 null and void clearly shows lack of appreciation of the decision being relied on in making the submission. This is because, a careful perusal of the facts in suit No. NICN/CA/177/2020: Rt. Hon. Larry Okori-Odey v The Government of Cross River State & Ors., the judgment in the case which was delivered on 27/5/2021, will undoubtedly show that the facts leading to the institution of that case and the facts forming the basis of the grouse of the claimants in this case are not the same. In the case of Rt. Hon. Lary Okori-Odey, the claimant’s case is that having acted as Governor of Cross River Sate for 90 days before conduct of election that produced a substantive governor for the state, he was entitled to pension and gratuity of a governor of the state and not that of speaker of the stae house of assembly. While in the case at hand the question resolved centers on the constitutionality of Special Allowance for some Public Office Holders Law No. 2 of 2023 or in the alternative the non-inclussion of the claimants in the special allowances law amount to discrimination.

201. It could be seen from the above exposition that the two cases are not on all fours same. This means the decision of this court in the case of Rt. Hon. Larry Okori-Oddey, delivered 27/5/2021, is not relevant, as it cannot serve any useful purpose in determinging the constitutionality or discrimination being alleged. The law remain that each case is authority for what it decides and not the otherway round. It is one thing to rely on an authority, and another thing to apply it to a case since a decision is only an authority for what it decides nothing more and each case is considered on its particular facts. See Oni v. Gov., Ekiti State (2019) 5 NWLR (Pt. 1664) 1.

202. I shall now focus my attention to the questions for resolution. It is clear like the day light that the challenge thrown up by the questions posed by the claimants in their originating summons commencing this suit seems to be focused on the constitutionality of the Special Allowances for some Public Office Holders Law No. 2, of 2023, enacted by the Cross River State House of Assembly and assented to on 15/2/2023, by the then Governor of Cross River State, to make special provision for monthly payment of allowances to Governor, Deputy Governor, Speaker and Deputy Speaer of the both serving and former.

203. The facts in the affidavits before the court indicates that, all that the claimants sought to do, is to challenge and question the validity of the action of the 2^nd defendant in not complying with the provision of section 124(5) of the Constitution as amended in the enactment of the Special Allowances for some Public Office Holders Law No. 2, of 2023.

204. The provisions of section 6 of the Constitution of the Federal Republic of Nigeria, 1999, as amended which grants superior court judicial power to determine civil rights and obligations in any dispute brought before the courts, becomes relevant in view of the submission of the 4^th to 16^th defendants insisting on the validity of the Special Allowances For Some Public Office Holders Law No. 2 of 2023 and insistence that this court has no vires to nullify the said law since it had been passed into law after public heating.

205. It is clear from the provisions of section 6 of the Constitution, apart from ousting of jurisdiction of court in determining any issue or question as to the legislative competence of any authority or person to promulgate any existing law. The provision of section 6 had not the effect of prohibiting any court from determining any issue or question as to the validity of any such law. Indeed, nowhere in section 6 was the prohibition extended to the question of determining the validity of any law. The prohibition was only as to issue or question of the competence of the lawmaker to make the law in question. Thus, the judicial powers of the court was only ousted in actions which seek to challenge the legislative competence of the authority or person (the military) to have made any extant or existing law made on or after 1966, but not in actions questioning or challenging the validity of the laws themselves.

206. It is clear to me the claimants’ action is questioning the validy of the law enacted by the 2^nd defendant. Therefore, this court has the rquisite jurisdiction to entertain the claimants’ suit and has the requesite power to determine the validity or constiutionality of the law under consideration.

207. The Constitution of the Federal Republic of Nigeria, 1999 is the foundation law on which every other law in Nigeria rests. Therefore, failure to follow its provision renders whatever is done contrary to it unconstitutional, null and void and of no effect whatsoever, and such act is liable to be set aside by the court. See Erekanure v. State (1993) 5 NWLR (Pt.294) 385; Adediran v. Interland Transport Ltd. (1991)9 NWLR (Pt. 214) 155.

208. The provisions of the Constitution of the Federal Republic of Nigeria 1999 are superior to every provision made in any Act or law and are binding on all persons and authorities in Nigeria. See INEC v. Musa (2003) 3 NWLR (Pt. 806) 72; Musa v. INEC (2002) 11 NWLR (Pt. 778) 223; A.-.G, Abia State v. A.-.G, Fed. (2002) 6 NWLR (Pt. 763) 264 at 479; Adisa v. Oyinwola(2000) 10 NWLR (Pt. 674) 116; A.-.G, Ondo State v. A.-.G, Fed. (2002) 9 NWLR (Pt.772) 222.

209. It is trite where a law enacted by the State House of Assembly in the exercise of its legislative powers, breached any provision of the constitution in respect of a particular matter it is dealing with, the court in appropriate cases is fully empowered by the constitution to struck down or nullify the offending legislation for violating the constitution which is the grundnorm and superior to any legislation see Section 1(3) of The Constitution as amended.

210. It is trite that courts including this court are competent to adjudicate on the validity, constitutionality or otherwise of any laws made by the legislature. The guiding principles in considering validity or constitutionality of a legislature or law has been provided by the Court of Appeal in the case of Speaker, K.S.H.A. Vs. Adegbe (2010) 10 NWLR (Pt.1201) 45, the guiding principles are:

a) The power of the Legislature when it legislated was not derived from the constitution;

b) The law legislated upon is inconsistent with constitutional provisions;

c) The Legislature is legislating in respect of any situation, conduct or subject which has been covered by the constitution;

d) The Legislature through legislation altered the conditions set by the constitution for the doing of an act either directly or indirectly.

211. In the case at hand the law in question Special Allowance for Senior Public Office Holders Law No.2 of 2023 was enacted to make provisions for payment of special allowance to Governor, Deputy Governor, Speaker and Deputy Speaker of the State House of Assembly. The provision of Sections 111 and 124 of the Constitution which empower the State House of Assembly to prescribed the salary and allowance of the Governor, Deputy Governor and Members of State House of Assembly granted such power to the State House of Assembly dependent on what the Revenue Mobilisation and Fiscal Commission would have determined as the appropriate amount to be paid as salary and allowances. See section 124(1) of the Constitutionas amended. The salaries and allowances payable to the holders of the offices as mentioned shall be charged upon the consolidated revenue fund of the state. See section 124(2) of the Constitution as amended. Therefore, for the Special Allowances for Senior Public Office Holders Law No.2 of 2023, to be valid must be made in compliance with the provisions of the Constitution donating such power.

212. There is no disputing the fact that section 4(6) of the Constitution of the Federal Republic of Nigeria 1999 stipulates that the legislative powers of a state of the federation shall be vested in the House of Assembly of the state, while section 4(7) (a), (b), and (c) of the Constitution, as amended, provides that the House of Assembly has the power to make laws for the peace, order and good government of the state or any part thereof with respect to any matter not included in the Exclusive Legislative List, any matter included in the Concurrent Legislative List and other matter with respect to which it is empowered to make laws in accordance with the provisions of the Constitution. See A.-.G, Abia State v. A.-.G, Fed. (2002) 6 NWLR (Pt. 763) 264 at 424, 458, 468-469; 473-474 and 475.

213. I note there is no item in the current legislative list contained in the Second schedule to the Constitution, as amended that expressly empowered the 2^nd defendant to enact law to make provisions for Special allowances for the Governors, Deputy Governor, Speaker or Deputy Speaker of the house of assembly.

214. I also note that there are ample provisions made empowering the 2^nd defendant to make law prescribing remuneration for the Governor, Deputy Governor and members of the state House of Assembly. See section 111 and 124 of the Constitution of the Federal Republic of Nigeria, 1999, as amended.

215. However, the remuneration, which are the salaries and allowances must be as determined or fixed by the Revenue Mobilisation and Fiscal Commission.

216. What need to be considered now is has the Special Allowances For Some Public Office Holders Law No. 2, of 2023 been enacted in compliance with the provisions of the constitution that empowers 2^nd defendant to make law for Cross River State Government the 1^st defendant.

217. As pointed out earlier in this judgment the constitution has made ample provisions for remuneration of the Governor and deputy Governor and members of the state house of Assembly. See sections 111 and 124 of the Constitution as amended.

218. From section 124 the salaries and allowances of the Governor and Deputy Governor is to be prescribed by the House of Assembly 2^nd defendant, but not exceeding the amount as shall have been determinef by Revenue Mobilization Allocation and Fiscal Commission. See section 124(1) of the Constitution, as amended. The law also requires that the salaries and allowances payable shall be charged upon the Consolidated Revenue Fund of the State. See section 124(2) of the Constitution, as amended.

219. By subsection (5) of section 124 of the Constitution, 1999, as amended the House of Assembly is empowered to make law for grant of a pension and gratuity to the Governor, Deputy Governor and the other officers mentioned in sub-section (4).

220. It is to be noted that by section 111 a member of house of assembly shall receive salary and such other allowances as the Revenue Mobilization Allocation and Fiscal Commission may determine.

221. The claimants are of the view that the Special Allowances For Some Public Office Holders Law No. 2, of 2023 was not in conformity of section 124(5) which empower 2^nd defendant to makes law prescribing pension and gratuity for Governor and Deputy Governor. Counsel also submitted section 124(5) did not include the Speaker and Deputy Speaker, the law violated the constitution it should be nullified.

222. It is apt at this juncture to refer to the provisions of the Special Allowances For Some Public Office Holders Law No. 2 of 2023 so as to see if it is in conformity with the provisions of the constitution empowering the 2^nd defendant to make laws.

Setions 1 to 5 of Law No. 2, 2023, provides:-

1. A person who has held office as a governor or deputy governor of the state shall be entitled to some special allowancesas provided under this law.

2. A governor or deputy governor of the state shall be entitled to the special allowances granted under section 1 of this law whether he cmpletes the prescribed tenure of office or not, except the person ceases to hold office at any time on the grounds specified in section 182 (a), (c) and (j) of the 1999 Consttution or he is removed from office pursuant to section 188 of the Constitution.

3. A person who has held office as a speaker or deputy speaker of the state house of assembly shall be enttled to some special allowances as provided under this law.

4. A speaker or deputy speaker of the Cross River State House of Assembly shall only be entitled to the special allowances granted by section 3 of this law where he has served as such for a period of not less than 2/3 of his tenure of office except the person ceases to hold office at any time on the grounds specified in section 92 of the 1999, Constitution or he is removed from office pursuant to secion 107 of the Constitution.

5. Special allowances under this law are as ontained in the schedule to this law.

223. The parties in this case are agreed that where provisions of the constitution or statute are clear and unambigous the court shall adopt literal rule of interpretation in interpreting the provision by giving the words their natural gramatical meaning. It is trite law where words used in an enactment are plain, lucid and unambiguous, they must be ascribed their natural and ordinary meaning, except where doing so will lead to absurdity or inconsistency. In the instant case, the words used by the drafters of Sections 1, 2, 3 4 and 5 and indeed all the provsions of the Special Allowances For Some Public Office Holders Law of 2023, are clear, unambiguous and admitted of no absurdity. They must, therefore, be accorded their literal meanings. See Aromolaran v. Agoro(2014) 18 NWLR (Pt. 1438)153; FBN. v. Maiwada (2013) 6 NWLR (Pt. 1348)444; P.D.P. v. I.N.E.C.(1999) 11 NWLR (Pt. 626) 200.

224. Applying the above enumciated principle of interpretation in the provisions of the Special Allowances For some Public Office Holders Law No. 2 of 2023 the legislators prescribed the special allowances for serving persons affected and those that have served even without completing their tenure, the allowances are also to be paid ad infinitum.

225. Also having regards to the deposition of the claimants to the effect that a meeting was held where it was agreed that some special allowances be provided for former members of Cross River State House of Assembly including the speaker and deputy speakers in the said law to carter for the health of former Hon. Members. However when the bill was passed into law, all formers members of the House of Assembly except the speakers and deputy speakers, were excluded, clearly goes to show that the Special Allowances for some Public Office Holders Law No. 2 of 2023, was supposed to be a product of agreement of legislators and chief executive of the state and not based on what the Revenue Mobilisation and Fiscal Commission has determined to be specual allowances. This clearly shows infraction of the provisions of sections 111, 124 of the Constitution thatrequires allowances to be prescrived for the Governor, Deputy Governor and legislators to be based on what RMFC has determined or fixed. The law violating these clear provisions of the Constitutioni s a nullity as the legislators are not allowed to mae law outside what the Constitution has allowed them to legislate.

226. It is clear to me that the Special Allowances for some Public Office Holders Law No. 2 of 2023, was a law that was passed to prescrive allowances outside the allowances determined by the Revenue Mobilisation and Fiscal Commission, the agency of government constitutionally saddled with responsibility to determine the kind of allowances to be paid Governor, Deputy Governor, Speaker and Deputy Speaker and by extension all legislators of the State House of assembly. The law having not been blessed by RMFC cannot be said to follow due process. This means it is inconsistent with the clear and unambiguous provisions of sections 111 and 124 of the Constitution.

227. It cannot also be said to have been made pursuant to secton 124 (5) of the Constitution since it was not meant to prescribe pension and gratuity. Therefore, the provisions of the Law No. 2, of 223 clearly contravened the clear and unambgous provisions of sections 111 and 124(4) of the Constitution which allows making law for current office holders without incuding those who are not in service or have left office.

228. The argument of counsel for the claimants to the effect that the Law No. 2 of 2023 is anattempt to resurrect the Governatorial Pension Law nullified in the case of Rt. Hon. Okorie-Oddey v The govt of Cross River State and 2 ors must have been made becase the Law No. of 2023 seems to have contemplated persons who have Completed tenure or left office or even before completing their tenure.

229. The provision of the Constitution that allows making law to prescribe payment of pension and gratuity to Governor and deputy Governor without Speaker and Deputy Speaker is section 124(5) and the constitutional provision did not contemplate Speaer and deputy Speaker.

230. From my finding above, the Law No. 2, was not made pursuant to the provisions of section 124 (4) and (5) of the Constitution.

231. I have also examined the current legislative list there is no provision manding 2^nd defendant to enact special allowances law.

232. In view of the foregoing reveations, the Special Allowances For Some Public Office Holders Law No. 2 of 2023 having been made not in the exercise of conferred legislative power on 2^nd defendant is unconstitutiona, null and void and of no effect whatsoever. This means the Law No. 2 of 2023 did not repeal any law as it is unconstitutional. In coming to this conclussion I found support in the case of Nwokedi v. Anambra State Govt. (2022) 7 NWLR (Pt. 1828) 29.

233. Before ending this jusgment let me say that the avid desperation with which the members of the 2^nd defendant consistently, with swift alacrity and arrant impunity desecrated the Constitution which is the foundation of democracy and which they all swear to defend, preserve and protect; left much to be desired of them. The legislature must leart to show respect to the Constitution and not to deliberately neglect or refused to abide by the extant provision of the constitution.

234. The House of assembly must at all time in carrying out their constitutional duty, refrain from abusing the power of making law to make laws for their selfishness aggrandizement to the detriment of the tenent of the law.

235. The law makers must always when exercising their powers of law making remembered that they were not elected to make laws that are beneficial to themselves and neglecting their responsibility in executing their legislative function for the good of the society.

236. In view of my finding that the Law No. 2 of 2023 was not legally made, I hereby declare the said law, unconstitutional, invalid, null and void and of no effect whatsoever.

237. The 1^st to 3^rd defendants are hereby restrained from implementing the provisions of the said law.

238. With this finding the issue of discrimination has become academic and moot and court are not meant to dissipate energy in engaging in academic exercise.

239. Judgment is hereby entered accordingly.

240. I make no order as to cost. Parties to bear their respective costs.

Sanusi Kado,

Judge.

REPRESENTATION:

Dr. Emmanuel Idaka, Esq; for the claimants

Udenyi Omaji, esq; senior state Counsel, Ministry of justice, Calabar, for the 1^st to 3^rd defendants

Professor Jacob A. Dada, Esq; for the 4^th to 16^th defendants, appearing with Bassey Long, Esq;