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The court has exclusive jurisdiction in civil causes and matters relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matter incidental thereto or connected therewith.

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Industrial Court dismisses Ex-Gov James Ngilari claims against Adamawa State Govt for Lack of Proof


2504 Monday 9th March 2020


The Hon. President of the National Industrial Court of Nigeria, His Lordship, Hon. Justice Benedict Kanyip, PhD, FNIALS has dismissed the suit filed by former Gov. of Adamawa, Barrister Bala James Ngilari against Adamawa State Government and 41 others on entitlement claims for lack of proof.

 

The Court held that Ngilari failed to discharge the burden of proof placed on him by law as to be entitled to a favourable verdict that Adamawa State Governor's Pension (Amendment) Law 2010 was not made available to the Court to see how the said sections 3 and 6 are worded.

 

The claimant served the as Deputy Governor and Governor between 29th May 2007 to 29th May 2015 respectively. To him, by sections 3 and 6 of the Adamawa State Governor’s Pension (Amendment) Law 2010, he is entitled to pension and gratuity for life. However, that upon completion of his tenure, he has not been paid his pension and gratuity.

 

The Incorporated Trustees of Human Development Initiative and 39 others submitted that Adamawa State House of Assembly acted contrary to the Constitution and beyond its constitutional powers when it purported to determine and fix the amount to be paid as pension and gratuity in the said Adamawa State Governor’s Pension (Amendment) Law 2010 that the claimant’s case cannot sustain any claim. Additionally, the said Law was made without the amount granted as pension and gratuity being determined and fixed by the Revenue Mobilisation, Allocation and Fiscal Commission.

 

The Adamawa Govt and Attorney General -1st and 2nd defendants also maintained that the power of the House of Assembly of a State to grant pensions or gratuity to or in respect of a person does not extend to the provision of housing and vehicle and the power of State House of Assembly to make law is subject to the power of Revenue Mobilization Allocation and Fiscal Commission to first determine the appropriate remuneration thereof.

 

The 1st and 2nd defendants continued that any payment whatsoever in the name of pension and gratuity to any past Governor or Deputy who has served Adamawa State Government as the Executive Governor/Deputy is subject to the availability of funds, captured in current budget, and proper documentation with the Adamawa State Pension Board Yola, judicially and judiciously as well as administrative procedure for transparency and accountability urged the Court to dismiss the suit in its entirety.

 

Delivering Judgment, the Presiding Judge, Hon. Justice Kanyip, PhD adopted the reasoning made in Incorporated Trustees of Human Development Initiatives (HDI)& 39 ors v. Governor of Abia State& 73 ors as far as the issue of the constitutionality of the Adamawa State Governor’s Pension (Amendment) Law 2010 is concerned in the instant case.

“The said issues were considered in greater details; and at paragraph 80, I held thus:

In summary, and given a global reading of the constitutional provisions, the conclusions I reach (and so hold) are:

(1)  Item 44 of the Exclusive Legislative List does not relate to the payment of pensions out of the Consolidated Revenue Fund of a State; only of the Federation.

(2)  Item 34 of the Exclusive Legislative List cannot override sections 4(7)(c) and 124(5) of the Constitution given section 4(3) of the Constitution.

(3)  By section 4(3) of the Constitution, the exclusive legislative power of the National Assembly is not absolute. Alternatively put, section 4(3) of the 1999 Constitution is not absolute. It subjects the exclusive legislative power of the National Assembly to other provisions of the Constitution, and section 124(5) is one such provision. This means that section 124(5) overrides the exclusivity of the legislative power of the National Assembly.

(4)  The power of the RMAFC under section 124(1) relates to “salaries and allowances”, not pensions. The word “remuneration” used in paragraph 32(d) of Part I of the Third Schedule to the 1999 Constitution does not include pensions.

(5)  While section 124(l) donates the power to prescribe remuneration and salaries of Governor and other public office holders subject to the amount as shall have been determined by the RMAFC, section 124(5) did not subject the power of the House of Assembly to that of the RMAFC in granting pension or gratuity for former Governors and their Deputies.

(6)  By section 124(5) of the 1999 Constitution, the pension or gratuity of former Governors and Deputy Governors does not need to be the same with the remuneration of a serving Governor or Deputy Governor as determined by the RMAFC.

(7)  The power of the RMAFC to determine remuneration under paragraph 32(d) of Part I of the Third Schedule to the 1999 Constitution relates to “political offices holders” i.e. those still in office, not those who have left office.

(8)  The exclusive legislative power of the National Assembly in terms of item 34 of the Exclusive Legislative List cannot override section 124(5) of the Constitution for the very reason that under section 4(3) of the Constitution the exclusive legislative power of the National Assembly is not absolute; and the additional reason that item 34 of the Exclusive Legislative List (as is paragraph 32 of Part I of the Third Schedule to the Constitution) coming from a Schedule cannot override a substantive provision of the Constitution. The rules of drafting teach and place greater premium on substantive sections of an Act over and above those in the Schedule. His Lordship Amadi J acknowledged this.

(9)  Alhaji Garba Umar v. Taraba State Government unreported Suit No. NICN/JOS/26/2016, the judgment of which was delivered on 9th December 2019 by my learned brother Amadi J, persuasive as it may be, is distinguishable and so cannot be followed in the instant case before me. Accordingly, though it is a decision by my learned brother of coordinate jurisdiction, I do not find it persuasive for all the reasons I already gave.

(10)        Accordingly, all State pension laws made pursuant to section 124(5) of the 1999 Constitution are valid and constitutional. They cannot be read to be contrary to or in contravention of any subsisting legislation or the Constitution. If the draftsman of the 1999 Constitution intended to give the RMAFC powers to stipulate pension or gratuity of former Governors and former Deputy Governors, he would have clearly stated so.

 

“The claimant’s claims are for pension, gratuity and other post-office entitlements, all of which qualify as special damages. The law is that a claim for special damages must be pleaded and particularized so that the defendant will know what he is meeting. 

  

“In labour relations, the burden is on the claimant who claims monetary sums to prove not only the entitlement to the sums, but how he/she came by the quantum of the sums; and proof of entitlement is often by reference to an instrument or document that grants it.” Justice Kanyip Ruled.