IN
THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE BENIN JUDICIAL DIVISION
HOLDEN AT BENIN
BEFORE HIS LORDSHIP: HON. JUSTICE A. A.
ADEWEMIMO
DATED:
21ST NOVEMBER, 2023
SUIT NO:
NICN/ABJ/347/2020
BETWEEN
EMMANUEL USOH ……..…..CLAIMANT
AND
1.
THE GOVERNOR OF EDO STATE
2.
THE ATTORNEY GENERAL OF EDO STATE ………. DEFENDANTS
REPRESENTATION
Emmanuel I. Usoh, Esq.
with President Aigbokaen, Esq. and Osazuwa Osasogie, Esq. for the Claimant
I. O. Kadiri, Esq. (PSC), Edo State Ministry of Justice with A.
O. Adams, Esq. (SSC) for the Defendants
1. The Claimant initiated this suit
against the Defendants vide a
General Form of Complaint, Statement of Facts, Witness Statement on Oath and
other accompanying documents, dated and filed 25th day of November,
2020. Claimant later obtained leave to
amend his Statement of Facts on the 14th of March, 2022, and the
extant Statement of Facts is dated and filed 14th March, 2022. The Claimant
thereby is seeking the following reliefs against the Defendants in this suit:
a)
A DECLARATION
that the Claimant is entitled to terminal benefits upon disengagement from
public office as Honourable Commissioner and member of the Edo State Executive
Council as well as Executive Director and Acting Chairman of Edo State Internal
Revenue Service (E.I.R.S.) as provided for in the Edo State Public Officers and
Emolument Law 2007.
b)
A Declaration
that the Claimant is entitled to the vehicle provided by the Edo State
Government to the Claimant upon his disengagement from office as stated in
relief (1) above and to pay the residual value of the vehicle or the cost be
deducted from the terminal benefits of the Claimant by virtue of the Public
Officers and Emoluments Law 2007.
c)
An order
directing the Defendants to re-value the vehicle (MITSUBUSHI PAJERO, with
Engine/Chassis Number JE4MR62NXGJ703859) and pay the Claimant his terminal
benefit upon his disengagement and such sums be computed for the purchase of
the re-valued aforesaid vehicle for the named Claimant and the outstanding paid
to him consequent upon the said disengagement.
d)
The sum of N11,100,000 as per Special Damages.
PARTICULARS OF SPECIAL DAMAGES
i.
The sum of N3,700,000 as severance for each tenure of
service amounting to N3,700,000 x 3
tenures as member, Edo State Board of Internal Revenue, Executive Director and
Acting Chairman, Edo State Internal Revenue Service = N11,000,000.00
e)
The Sum of N5,000,000 (Five Million Naira) only as
General damages for the embarrassment and threats resulting from constant
harassment and intimidation by thugs at the behest of the 1st
Defendant.
f)
Perpetual
injunction restraining the Defendants, their servants, privies or any person
acting in their stead howsoever described from harassing, intimidating and
forcefully attempting to retrieve or disposes the named Claimant herein of the
vehicle MITSUBUSHI PAJERO, Grey(sic) in colour with
Engine/Chassis Number: JE4MR62NXGJ703859 particularly set out and described
in the Statement of Claim in support of the Writ of Summons.
2. The Claimant’s
case in summary is that he was appointed into the Edo State Public Service as
Member, Board of Internal Revenue Service and served two terms. The Claimant
was thereafter offered his official car as part of his severance package, at
the completion of his tenure. The claimant was subsequently offered another
appointment as Commissioner for Wealth Creation, Co-operatives and Employment
in 2017, and served until a cabinet reshuffle in 2019, when he was dropped. The
claimant averred that his salary throughout his appointment was drawn from the
Edo State Political and Public Office holders Emolument Law. The claimant by
virtue of his position as commissioner was also given an official car which he
went away with it upon his exit from the office. The claimant in this respect
relied on an undertaken to pay the residual value of the official car assigned
to him in accordance with the law and policy of the defendants upon resumption.
The defendants however demanded for the return of the vehicle and this prompted
the institution of this suit against the defendants wherein he is seeking the payment
of his severance gratuity, and the retention of the official vehicle attached
to him as a Commissioner in Edo State.
3. The defendants
entered appearance vide a Memorandum of Appearance, and filed their Statement
of Defence and other processes dated 12th of April, 2021, on the
same date. The Defendants therein admitted paragraphs 1, 3, 4, 9, 11 and 23 of
the Statement of facts, and averred that paragraphs 5, 16, 19 and 27 are within
the knowledge of the claimant. The defendants further denied the facts pleaded
in paragraphs 6, 7, 8, 10, 11, 12, 13, 14, 15, 17, 18, 20, 21, 22, 24, 25, 26
and 28 of the Statement of Facts. They vehemently disputed the facts pleaded by
the claimant, and contended that the claimant is not entitled to the reliefs sought
in this suit. The defendants’ case is that the claimant was relieved of his
appointment as Commissioner because of his uncooperative attitude and
under-performance, which applied to some other members of the Executive Cabinet
at the time. As a result, the 1st defendant felt the need to reconstitute
the State Executive Council, and some members whose performance were below
average were let go, including the claimant. Upon being served with the Joint
Statement of Defence, the claimant also filed a Reply to the Statement of
Defence dated and filed 16th July, 2021.
4. Trial in this
case commenced on 25th October, 2022, with the claimant Emmanuel I.
Usoh testifying as CW1. He adopted his
depositions on oath, tendered documents that were admitted and marked Exhibits H1- H11(a & b), H12 – H15(a & b) -
H18. CW1 testified that he was
appointed by the 1st Defendant as a full-time member of the Board of
Internal Revenue in 2009, and worked there till 2016. Under cross examination, CW1
testified that he was at a time the Ag. Chairman, and has never heard of the
Regulations guiding the remuneration of the Staff of the Service. He continued
that members such as the claimant are not covered by such regulation which is
meant for staff of the Board, but by their letters of appointment issued by Edo
State Government. CW1 admitted that he knew Hon. John Obazee (now deceased),
who was the claimant’s contemporary during his second tenure. He testified that
he was not aware that Hon. John Obazee raised the issue of severance allowance when
he was about to leave the Service in 2018, and stated that he believes if he
did, such letter should have been addressed to the 1st defendant.
5. CW1 denied he
was aware that Hon. John Obazee was given a Toyota Camry, but confirmed he received
a Toyota Camry from the Edo State Government upon his exit from service. Claimant’s
attention was drawn to paragraph 9 of his Statement of Facts, where he led
evidence that the car that was released to him was part of his severance
package vide Exhibit H2. CW1 went on to admit that Exhibit H2 was dated 12th
September, 2017, the year he was made a Commissioner. CW1 testified that he
served on the Revenue Board twice, first as a member of the Board, until the
law was changed and members became executives, and later served as Ag. Chairman.
He also confirmed that he served the 1st Defendant as Commissioner,
and maintained that while he spent 8 years in Internal Revenue Service, he
served as Commissioner for a tenure.
6. CW1 continued under
cross-examination, that it may be true that for a political appointee to enjoy
severance allowance, he must have completed two tenure. He however elucidated
further that in relation to an appointment as a Minister or Commissioner, same
is not applicable, as such appointment is at the pleasure of the Governor. CW1
admitted that the Mitsubishi Pajero Jeep in issue was assigned to him officially,
and agreed that even if he was to be given the vehicle, he must pay the
residual value, hence he wrote the defendants requesting for same. He testified
that immediately his tenure ended in 2019, he was to be re-appointed to the
Board after the cabinet reshuffle. CW1 further maintained he was asked to
retain the official vehicle he used as Commissioner, in view of the new
appointment as Chairman, Internal Revenue Service, offered to him by the 1st
defendant. CW1 denied he was aware that other Commissioners left their official
vehicles with their Accounting Officers, and admitted that the vehicle given to
him was for official use.
7. The defence
opened their case on the 26th of January, 2023, by calling Friday
Adoghe, Director, Treasury Cash Services, Accountant General Office, Edo State
Treasury House, Sapele Road, Benin City as DW1.
He adopted his deposition on oath, tendered documents admitted and
marked Exhibits E1 – E3. Under cross-examination,
DW1 denied he is a Commissioner in Edo State, and maintained that all his
depositions in his witness statement on oath is what he obtained from the
record, and the claimant’s letter of disengagement. He also confirmed that the said
record are not with him in court, but admitted that Exhibit H6 is an undertaken
that a residual value ought to be paid by the claimant for the vehicle
allocated to him. DW1 denied having any letter of assessment of the residual
value of the vehicle with him, but confirmed that the Executive Governor of Edo
State appointed the Claimant to the Board of Internal Revenue Service.
8. DW1 maintained that CW1 was not a staff of the
Board but a member, and his salaries are drawn from the emoluments of Political
and Public Office holders. He added that emolument drawn from Schedule A is
different from salaries obtained in the civil service which are drawn from
Schedule B. DW1 referred to Exhibit H2 and admitted that it is an approval for
severance allowance for the claimant and an official vehicle. DW1 testified it
is the Governor that approves severance for officers under Schedule A, while
appointment as Commissioner, Special Assistant and Heads of MDAs is at the pleasure
of the Governor. DW1 stated that he does not have the terms of the severance
package of the claimant and other members with him in court.
9. DW1 admitted that secondment does not make an
officer a staff of an office, as he/she still remains a staff of the original
office. He confirmed that claimant completed 8 years in the public service, and
confirmed that he did not hear anything pertaining to fraud against the
claimant. DW1 stated that he was not there when Hon. Ohonbamu was forcefully
relinquished of his official vehicle. DW1 also admitted that he was not
physically present during the discussion between the claimant and the Governor
of Edo State, when he was offered an appointment as chairman, Edo State Board
of Internal Revenue Service and declined.
10.
The defence closed after the evidence of DW1, and the case was adjourned
for adoption of final written addresses. Learned counsel for both parties
subsequently filed their final addresses, which were eventually adopted on the 10th
October, 2023.
11.
I. O.
Kadiri, Esq. of counsel for the defendants adopted his Final Written Address
dated and filed 24th February, 2023, wherein he formulated a lone
issue for determination, to wit:
“Whether the claimant has proven his
claims and reliefs in this suit to the grant thereof in the prosecution of this
suit?”
12.
The Defence counsel pointed
out that all the claims and reliefs in this suit are based on the declaration
that the Claimant is entitled to certain terminal benefits or severance
allowance as Member of Board of Edo State Internal Revenue Service or Edo State
Executive Council. He noted that there exists no claim in this suit that the
Claimant was owed his salary, which was indeed paid as and when due. He further
submitted that the Defendants have placed sufficient facts, materials and legal
provisions before court showing that the Claimant was a Political Appointee who
held his appointment at the pleasure of the 1st Defendant. Counsel
therefore argued that the claimant is not entitled to the misconceived claims
and reliefs he placed before this Court in this suit.
13.
Defence counsel submitted that the
Claimant who asserts that he is entitled to his severance allowances owes a
duty to prove same in this suit. He pointed out the Claimant was unable to establish
his claims, and enjoined the Court to dismiss this suit in its entirety. He
also cited UNION BANK NIGERIA LTD vs.
PROF. A.O OZIGI (1994) 3 NWLR (Pt.333) 385 Ratio 8, and several other cases, and argued that
the first three reliefs in this suit show that they lack substance.
14.
Learned counsel cited S.208 (1) & (2) of the Constitution of
the Federal Republic of Nigeria, 1999 (hereinafter referred to as CFRN, 1999) as the Constitutional provision which guides the appointment of the claimant
as Commissioner. He further
cited OMOWAIYE
vs. A. G EKITI STATE (2011) ALL FWLR (Pt. 588) 876 and YUSUF vs. SUNTAI (2010)
ALL FWLR (Pt. 502) 1002.
15.
Defence counsel contended that the Claimant
held office at the pleasure of the 1st Defendant by virtue of the
Constitution, and he is not a public officer with a scheduled career in Edo
State Public Service. Learned counsel submitted that holistic perusal of
Exhibit E3 i.e. Edo State Political and Public Officers Emolument Law, 2007,
reveals that the Claimant is not entitled to terminal benefit or severance
allowance consequent upon his disengagement from the office as Commissioner of
Wealth Creation, Edo State, citing Exhibit E3.
16.
Learned counsel noted that the severance
gratuity of 300% of the annual basic salary of all categories of Political
Office holders is payable at the end of their full tenure with the Government. He
added that to qualify for this payment, a political office holder must have
disengaged honourably by which means cessation of service must not be due to
proven case of impropriety and/or related offences. He also cited Paragraph C, Second Schedule Part (III) (Implementation
Strategies) of Edo State Political and Public Officers Emolument Law, 2007
(Exhibit E3).
17.
He argued that applying this mandatory
provision to the reliefs in this suit, the Claimant is not entitled to the
terminal benefits as he did not complete his full tenure. He argued that the Claimant
failed to place any process of the residual value of the Vehicle he arbitrarily
converted and took it out of the Edo State before the court which he argued is
wrongful. He submitted therefore that it is belated for the claimant to
approach this Court to seek an order directing the Defendants to calculate the
residual value of the vehicle in issue. Counsel argued that this action of the
Claimant is void of Equity, more so, when the other eight colleagues who were
disengaged left their official Vehicles with the accounting officers in their
ministries.
18.
Defence submitted that equity does not act in
vain, but is buttressed or grounded on solid facts which would induce the Court
to act in favour of the Claimant. He cited the case of TELEPOWER NIGERIA LTD. vs. NICHOLAS BANNA (2002) FWLR (Pt. 95) 255
Ratio 2
19.
He added that where a relief sought by the
Claimant, is an equitable one, he cannot succeed unless he meets with the essential
requirements for equitable remedies, prominent among which is, “He who
seeks equity must do equity”. He argued that failure to meet this requirement,
implies that the equitable relief could rightly be refused by Court. He further
cited the following cases, EJOH vs.
WILCOX (2003) FWLR (Part 185) 453 Ratio 6; NLEWEDUM vs. NDUMA (1985) 6 NWLR
(Part 402) 383 and S. C. C (NIG) LTD vs. OUR LINE LTD. (1996) 4 NWLR (Pt.
551.
20.
The defence counsel went on to submit
that the Claimant’s Reliefs (a-c, d (i) of Paragraph 28 of his extant Statement
of Facts, filed on 14/3/2022 are of no moment as same is helplessly unproven
and in want of equity. He continued that reliefs d, d(2) and d(3) are also grossly
misconceived and unworthy of attention of this Court. Learned counsel argued
that the defence have shown the Court that the only class of employees who are
entitled to terminal benefits in the Revenue Board are career staff of the establishment.
He added that political appointees, like the Claimant, are not in any way
entitled to terminal benefits of any kind.
21.
Counsel noted that the Claimant was
never Chairman of the Edo State Board of Internal Revenue Service, but Ag.
Chairman. He pointed out that the Claimant did not spend up to a year in the
position, and was made Ag Chairman vide Exhibits 15A & 15B dated
8/4/2016 and 14/4/2016 respectively. He noted that under cross-examination, the
Claimant on 25/10/2022, told the Court that he left the service of the Edo
State Internal Revenue Service in 2016.
22.
He therefore submitted that by the
operation of the words of the enactment in the law i.e. Exhibit E3, the
Claimant does not qualify for any severance benefit. He argued that the law is
to the effect that words in an enactment should be given their natural meaning,
citing AWOLOWO vs. SHAGARI (1979) All
N.L.R 105/ (1979) NGSC, 49.
23.
Learned counsel submitted that the
special damages claimed in this suit must fail, considering that same must be
proved with credible and un-contradicted evidence. He argued that the Claimant
woefully failed to prove that he is entitled to the severance entitlement as claimed.
He argued further that evidence from the record shows that the claims in this
suit are merely imaginary, as they are not provided for by the bilateral rules
of engagement between the parties, and are unsupported by law.
24.
Counsel further argued that the claim for General
Damages of N5,000,000.00 and cost of action
of 1,500,000.00 and other reliefs contained in paragraphs 28 (e) – (h) are unproven.
He added that the language and tenses in Exhibits H12 and H13 are void of
embarrassment or threat as alleged by the Claimant, even though he converted
the vehicle for his own use and took it outside Edo State to Lagos State.
25.
In conclusion, defence counsel urged
the Court to find in favour of the defence to dismiss this suit in its
entirety, with a corrective order that the Claimant returns the Vehicle in
Issue which he has arbitrarily taken away from the reach of the Defendants
since July, 2019.
26.
The Claimant
Emmanuel I. Usoh, Esq. appearing for himself, adopted his Final Written Address
dated and filed 20th of March, 2023, wherein he formulated two issues
for determination, to wit:
1.
Whether the Claimant is entitled to the
reliefs claimed and has proved same by evidence required by law.
2.
Whether this Honourable Court can grant
the Claim of the Claimant herein.
27.
On issue one, learned counsel submitted that
the initial legal burden of proof rests on the party who will fail if no evidence
is called in a case. He referred to Section 131, 132 and 133 of the Evidence
Act, 2011 (as amended).
28.
Learned counsel maintained that the
documents tendered by him are to prove his appointments, and approval of the
Governor for the release of his official car as part of his severance package
after his service with the Edo State Revenue Service. The claimant also
referred to payment slips identifying the source of payment of his salaries as
the Government of Edo State, and other documents which established the fact
that he is yet to be paid his severance gratuity after his service. Counsel went on to cite
N.N.P.C. v. Samfadek & Sons Ltd. (2018) 7 NWLR Pt. 1617 Pg. 1 @ Pg. 9.
29.
Counsel noted that the defendants
tendered C.T.C. of a letter written to one late Hon. Obazee on the non-payment
of severance gratuity by the Internal Revenue Service, the cost of purchase of
Toyota Camry, and a copy of the Edo State Political and Public Officers
Emolument Law, 2007.
30.
Claimant submitted that if the letter
of Hon. Obazee was wrongly channelled, the
Claimant’s case should not be concluded on a wrong application by Hon. Obazee, as his employment was not by the Edo
State Internal Revenue Service. The claimant’s counsel observed that DW1 under
cross-examination also confirmed this fact. He therefore submitted that the
Claimant has proved his case with oral and documentary evidence to be entitled
to the reliefs in this suit.
31.
He also noted that under the Emolument law particularly
Schedule 2 Part III of the Law, it is clearly provided that with the exception
of the State Governor, Chairman and Vice-Chairman of Local Government, all
other categories of public officers shall be entitled to severance. He argued that this
provision without doubt forms the basis of the claim for severance allowance at
the end of his tenure. He noted that the defendant did not deny the
entitlements as specifically captured in the law, and pleadings, arguing that what
is admitted needs no proof. He also cited Aboro Baalo V. Federal Republic of Nigeria (2016) LPELR 40500 (SC) and noted that the Court is without doubt to
apply the law to the facts and circumstances of each case in order to
attain justice, he went on to rely on
Olutola v University of Ilorin (2004) LPELR-2632 (SC)
32.
Claimant argued that he has proved his
case before this Court, and the Defendants have offered no evidence in rebuttal,
once the burden of evidence shifted to them. He contended that the defence have
not shown by credible evidence that the law was not made by the Defendants, and
that the Claimant is not entitled to severance or the car earlier given to him
as part of his severance i.e. Exhibit
H2.
33.
He further submitted that this Court
should have no difficulty in entering Judgment in favour of the Claimant herein
as his evidence was unassailable, not contradicted/ controverted in the
circumstance. He cited Kenor Madina Tal
& Ors V. Abdullahi Shuaibu Anampra & Ors (2016) LPELR-40799 (CA) and urged the court to resolve issue
one (1) in favour of the Claimant.
34.
On issue two, claimant submitted that
this Court has power to grant the reliefs in this case, having pleaded the
relevant facts, particularized the damages where necessary and substantiated
same with oral and documentary evidence. He added conversely, that the
defendants have offered no evidence in defence of the claims in this suit. Claimant
noted that a proper scrutiny of the Emolument Law, Part II Schedule 2,
disclose the annual basic salary of the Claimant per annum, as well as 300% of
annual basic salaries as severance, out of which the defendants have paid
nothing to the Claimant. He added that the defendants also did not provide proof
of such payment if any till date, and referred the court to Clean Credential Ltd. V. I.T.F., Governing Council (2019) 17 NWLR Pt.
1701 Pg. 318 @ 352-353, paras G-B (CA). He
pointed out that the evidence of the Claimant stands unrebutted, and can be acted
upon by this court. The claimant posited that he has established his claims to the
sum contained in his reliefs, and relied on Mantec Water Treatment Nig. Ltd. V. Petroleum (Special) Trust Fund
(2007) LPELR-9030 (CA)
35.
Claimant noted that the defendants offered no evidence in
opposition and in proof of their pleadings, and contended that the entire witness
statement on Oath offends the provisions of Section 115(3) and (4) of the
Evidence Act, 2011 (as amended). He argued that the deponent in the witness
statement on Oath dated 23/1/2023, and adopted on 26/1/2023 did not disclose
the source of information as required by the said Evidence Act. He emphasized further that Section 115(3) and (4) are impari material with Section 87(3) and (4) of the evidence Act,
2004, and referred the court to
Josien Holdings Ltd & Ors V.
Lornamed Ltd. Anor (1995) LPELR-1634 (SC).
36.
Counsel continued that the general
denial of the facts contained in the statement of defence and lame denial of
facts in the incompetent witness statement on Oath are proof of the admission
of facts by the defendants. Counsel relied on the provisions of section 21 (1)
of Evidence Act, 2011 (as amended) and the case of Long John & Ors (Blakk & Ors (1998) LPELR 1791 (Supra). He
further argued that any fact allegedly deposed to by Friday Adoghe without the
source of information or information derived by him personally amounts to
hearsay evidence which is in contravention of Sections 37 and 38 of the Evidence Act, 2011 (as amended).
37.
Claimant alleged
that the deposition of DW1 were not derived
from his personal knowledge nor from any source disclosed in the witness
statement on Oath. He continued that DW1 was neither a member of staff of Edo
State Internal Revenue Service Board, nor a Commissioner in the Edo State
Government, to be privy to executive conclusions from the State Executive
Council meetings.
38.
Claimant contended that the evidence
of the DW1 therefore cannot be relied upon and must be discountenanced by this
Court citing MRS. JULIANA MORADEKE
ALALADE & ORS V. CHIEF TAJUDEEN SUBERU ODOLO & ORS. (2019) LPELR-46888
(CA). The claimant further referred the court to its decision in Hon. Eric Ohonsi & Ors V. Igueben Local
Government Council in Suit No: NICN/BEN/39/2019 delivered on 10/5/2022. He urged the court therefore to
resolve issue two (2) in favour of the Claimant, and all other issues in this case in his favour,
by granting all the reliefs in this case.
39.
The Claimant later filed a list of additional
authorities dated 20th
August, 2023 and filed 22nd August, 2023,
wherein
he referred this court to the following cases: AGHIMIEN & ORS V. EXECUTIVE GOVERNOR, EDO STATE & ORS (2021)
LPELR-53433 (CA); NAWA V. AG CROSS
RIVERS STATE & ORS (2007) LPELR-8294(CA).
40.
Upon receipt of the claimant’s final
address, the defence counsel filed a reply on point of law dated and filed 12th
of April, 2023, which he also adopted along with his final address. Counsel submitted in the Reply that the Claimant
woefully failed to prove his entitlement to terminal benefits, and that this
suit should be dismissed with an order that the Claimant returned the vehicle
in issue to the defendants. He submitted that the vehicle was only released to
the Claimant while his appointment lasted. On the
competence of the deposition of DW1. Counsel submitted that there is a
difference between an affidavit, which is a declaration before the commissioner
for Oaths and a witness statement of facts which relates to facts adduced in
pleadings, and only became evidence in chief upon its adoption. Counsel cited UNION
BANK Vs. KOLEOSO (2019) LPELR CA/L/227/2008; ALALADE & ORS Vs. ODODO &
ORS (2019) LPELR CA/L/286/2013.
41.
Learned counsel contended that DW1 was not
cross-examined by the claimant on the issues raised against his deposition on oath,
and raising this issue in his final address amounts to an after-thought, which
should be discountenanced. He urged the court to so do.
42.
I have read the entire process filed by the
parties, listened to the witnesses called, and considered the final submissions
of counsel in this suit. Thereafter, I find that the sole issue that can
adequately resolve all issues in this suit is, to wit;
“Whether or not the claimant is
entitled to the reliefs sought in this suit.”
43.
The issue for determination will however be
divided into two sub-issues as follows;
a) The claim for severance gratuity by the
claimant for the two tenures he served in the Edo State Board of Internal
Revenue (2009 – 2016);
the tenure he served the Edo State Government as Commissioner for Wealth
Creation, Cooperatives and Employment ( 2017 – 2019)
b) The release of MITSUBUSHI
PAJERO, Grey(sic) in colour with Engine/Chassis Number: JE4MR62NXGJ703859 which was the official vehicle attached
to claimant when he was appointed Commissioner in
Edo State (2017 – 2019).
44.
At
this stage, it is necessary to resolve
the contention of the claimant that the
evidence in chief of DW1 should be discountenanced. He premised this argument on
the ground that DW1 did not disclose the source of his information of the facts
deposed to by him in his evidence on oath. The claimant argued that this action
offends Section 115(3) and (4) of the Evidence
Act, 2011 (as amended) and posited that the defendants did not offer any
evidence in rebuttal in the instant case. On this issue, I find that the position
of the law is that an affidavit is distinct from a witness statement on oath, as
same is not strictly bound by the provisions of the Evidence Act. In DANLADI SANI ABUBAKAR Vs. SANI ALI &
ORS 2015 LPELR-40359 (CA) coram Abdullahi JCA:
“Simply put, an affidavit is not the
same as a written statement on oath, which is much more than an affidavit and
does not necessarily or strictly need to be in compliance with the provisions
of the Evidence Act, 2011 relating to affidavit. The duty of a witness making a
written statement on oath is to ensure that it is deposed to before a
Commissioner for Oaths duly authorised by law to do so”
45.
In
a like manner, this court is charged to
dispense with the provisions of the Evidence Act in the interest of justice, see
Section 12(2) of the National
Industrial Court Act, 2006. This provision was applied in the case of Mr Victor
Adegboye Vs. United Bank for Africa in Appeal No. CA/IL/20/2021 delivered on 14th April, 2022,
where the court upheld the applicability of Section 12(2) of the National Industrial Court Act, 2016 in this court, coram Amadi JCA as follows:
“…in view of the foregoing, I hold that
Section 12(2) of the National Industrial Court Act, 2006 ought to apply to this
case and it is hereby applied”
46.
In line with this exposition, and the distinction
between an affidavit and a witness statement on oath outlined above, the argument
of the claimant’s counsel that the witness statement on oath of DW1 is
incompetent for lack of compliance with Section 115(3)
and (4) of the Evidence Act, 2011, lacks merit,
and same is hereby discountenanced.
47.
On the first
sub - issue, the facts are uncontroverted that the claimant served in the Edo
State Board of Internal Revenue for eight years, as Member, Executive Director
and later Ag. Chairman, see Exhibits H1, H8, H9, H15A & B. A perusal
of these Exhibits particularly Exhibits H8 and H9 reveals that
the claimant was “……entitled to draw all remunerations
stipulated in the Edo State Political and Public Officers Emolument Law, 2007, ….” i.e.
Exhibit H10.
48.
It is on record that the claimant was
appointed Ag. Executive Chairman of the Revenue Board sometimes in April, 2016,
before he was made a Commissioner in 2017. A further scrutiny of Exhibit H10 reveals
provisions on the remuneration for chairmen of Commission or Executive bodies, and
members, even though the Edo State Board of Internal Revenue where the claimant
served was not specifically mentioned. Furthermore, Section 4 of Exhibit
H10 describes “Political Appointees” as any person appointed by the
Executive whose tenure is either statutory or expires with the tenure of the
appointor.
49.
In the instant case, there is no doubt that
the claimant was appointed by the Executive Governor of Edo State, and his
remuneration was drawn from the Emolument law i.e. Exhibit H10, as clearly
disclosed in Exhibits H8 and H9. The question then arises whether the tenure of
the claimant as Ag. Chairman, Member, and Executive Director entitles him to
the payment of severance gratuity. In resolving this, it is pertinent to note that
the Board of Internal Revenue Service (I.R.S.) where the claimant served is a
creation of statute which can sue and be sued on its own, and as such, is a necessary
party to sue for the proper adjudication of all issues in this suit. Curiously
though, the claimant did not deem it fit to join the Board, having raised the
issue of his severance gratuity based on his service there. This case cannot however be treated in
isolation of the Board, considering some of the issues raised by the claimant in
this suit.
50.
The evidence adduced clearly raises some
question against the Board, for which its presence in this suit is
indispensable. The claimant
led evidence that he served the Edo State Board of Internal Revenue Service for
a total of eight years, inclusive of the time he served as Ag. Chairman for a
year. He also testified that he was given a Toyota Camry as “part of his
severance gratuity” which he accepted, while he adduced no further evidence to
substantiate his claim for other entitlements, considering the absence of the
Board as a necessary party.
51.
Meanwhile, the
Edo State Revenue Administration Law 2012, clearly made provision on the remuneration for Chairman, and Members of
the Board of Internal Revenue and, it is that, same is as determined by the
Governor, see Section 3 (2) of the Law which provides as follows;
“…The Chairman
and Members of the Board shall be paid such emoluments, allowances and benefits
as the Governor may, from time to time determine”
52.
The implication of the above is, it is
only the Governor that is at liberty to determine the emoluments and allowances
and benefits of the chairman and Members of the Board of Internal Revenue
Services. Consequently, there is no direct provision on the emoluments of these
officers in Exhibit H10, while at the same time, the Revenue Law is specific on
the emoluments of officers being determined by the Executive Governor of the
State. A look at Exhibit H1 reveals that the remuneration for the claimant’s 1st
tenure with the Board was made subject to the regulation currently in force in
the Public service of Edo State as it relates to the Board. On the other hand,
Exhibit H8 dated 27th May, 2009 made the claimant’s appointment as
Member of the Board subject to Exhibit H10. Lastly, Exhibit H9 dated 17th
August. 2011 stipulates that claimant’s remuneration as a full-time member of
the Board is to be drawn from Exhibit H10. The above undoubtedly presupposes
that there is no strict provision on the emoluments of the officers of the
Board, and same is indeed subject to the discretion of the Governor.
53.
It goes without saying that the claim for
severance gratuity is a claim in special damages, which must be concisely and
cogently proved. On this see Maihaja v Gaidam & Ors. (2017) LPELR-42474 (SC) where Eko JSC held
as follows:
“Section 131(1)
of the Evidence Act, 2011 provides that whoever desires any Court to give
judgment as to any legal right or liability dependent on the existence of facts
which he asserts must prove his assertion. It therefore logically follows that
what is alleged without proof can be denied without proof. When a fact is
asserted without proof then the existence of the alleged fact is not
established. That is why Section 132 of the Evidence Act provides further that
the burden of proof in a suit or proceedings lies on that person who would fail
if no evidence were given at all on either side.”
54.
The
claimant in this regard cannot therefore
rely
on lack of defence, or laxity of the defence to shift the burden to prove his
case by direct evidence. The claimant did not place anything before this court
that his appointment with the Board is captured directly in Exhibit H10.
Conversely, the claimant’s appointment was made pursuant to the Edo State
Administration of Revenue law, which gives the Governor the right to decide the
remuneration due to members. Consequent upon the above, no direct provision
exists in Exhibit H10 on the emolument of members or chairman of the Board of
Internal Revenue, a body created by a different statute. In this wise, Exhibit H10 cannot usurp the provisions
of the law which established the Internal Revenue Service of Edo State. On this
see
Dosunmu v Odesanya & Anor. (2013) LPELR-22755 (CA) Oseji JCA held:
“The Court has no business, to embark
on guesswork or speculation as to what is or what is not. A party seeking the
judgment of a Court in his favour has the unenviable duty to provide all the
necessary materials in his evidence that will justify the relief sought. A
Court should not be left to grope in the dark in search of the truth in any
given situation. Speculation and guesswork is an anathema in our adversarial
system of justice.”
55.
On this premise, the claim in this suit for
severance gratuity as an officer of the Edo State Board of Internal Revenue is
unsubstantiated and unproven before me, and consequently fails in its entirety.
I so hold.
56.
On
whether or not the claimant is entitled to severance gratuity for his tenure as
Edo State Commissioner for Wealth Creation, Cooperatives and Employment (2017 –
2019). It is worthy of note that the claimant spent two years out of the four-year
tenure of the 1st defendant as member of the Executive Council, which
means he did not complete his tenure with the 1st defendant. In this regard, there are some conditions attached to
the payment of severance gratuity, as clearly stipulated in Exhibit H10. This
includes; (a) completion of the full tenure (b) the officer must have
disengaged honourably which is not due to forced resignation, or proven case of
impropriety.
A scrutiny of
2nd Schedule PART (III) of the law, reveals provision on Severance Gratuity
under Section C as follows;
“A severance
Gratuity of 300% of the annual basic salary of all categories of political
office holders shall be paid at the end of their full tenure of office with the
Government. This payment shall be made at the end of each tenure. To qualify
for this payment, a Political Office Holder must have disengaged honourably, by
which is meant Cessation of Service, must not be due to forced resignation, or
termination of appointment due to proven case of impropriety and/ or related
offences”
57.
It is
undisputed that in the instant case, the claimant did not complete his full
tenure as commissioner, which is tied to the tenure of his principal i.e. the 1st
defendant. As a result, his claim for the severance gratuity is unsupported by
the provisions in Exhibit H10 and therefore fails. I so hold.
58.
The second sub-
issue is in respect of the claim for the release of MITSUBUSHI PAJERO, Grey(sic) in colour with Engine/Chassis Number:
JE4MR62NXGJ703859 to claimant. The vehicle in
question was attached to the claimant as his official vehicle while in office
as Commissioner, and he led evidence that by virtue of the Exco Conclusion/Policy
i.e. Exhibit H14, he is entitled to same after the payment of the residual
value. However, the Claimant placed nothing on record that he paid the residual
value of the vehicle, or same was ever assessed by the defendants and
officially released to him. The evidence placed before this court clearly shows
that the claimant went away with this vehicle without any official authorization.
Even assuming there is a Government Policy which allows the claimant to go away
with the vehicle upon payment of the residual value, and there is an
appointment offered to him which requires the continued use of the vehicle, the
requisite authorization and paper work must be obtained before he can take full
possession, since he was no longer in the service of the 1st
defendant.
59.
Therefore, in line with the above reasoning, I find that there is no
justifiable reason for the claimant to hold on to a Government vehicle without
due authorisation. As such, the claim for the release of MITSUBUSHI PAJERO with
Engine/Chassis Number: JE4MR62NXGJ703859 by the claimant in this suit is untenable.
60.
In conclusion, I find that the case of the
claimant is unsubstantiated and unproven. The case consequently fails in
entirety, and is hereby dismissed for lack of merit.
No order as to cost.
Judgment is entered.
Hon. Justice A. A. Adewemimo
Presiding
Judge