IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE CALABAR JUDICIAL DIVISION
HOLDEN AT CALABAR
BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO
13TH
DAY OF JUNE, 2025 SUIT NO: NICN/CA/60/2023
BETWEEN:
AKPANKE OGAR - Claimant
AND
CROSS
RIVER STATE GOVERNMENT - Defendant
JUDGMENT
1.
The claimant
commenced this action via a general form of complaint dated 21/12/2023 and
filed on the same date. The complaint was accompanied by statement of facts,
witness statement on oath, list of
witnesses, list of documents and photocopies
of documents to be relied on at the trial. The statement of facts was by
order of court granted on 23/7/2024, amended. Vide paragraph 20 of the amended
statement of facts filed on 18/10/2024, the claimant claimed against the
defendant as follows:-
a.
An order directing
the defendant to pay the claimant his entitlement in the sum of ?21,600,000.00
(Twenty-one Million, Six Hundred Thousand Naira) representing Claimant’s
severance grant @ 300% of Claimants Basic salary of ?3,600,000
and furniture allowance @ 300% of Claimants Basic salary as provided for in the
Remuneration Laws of Cross River State for Political, Public and Judicial
Office Holders No. 12 of 2007.
b.
The sum of ?10,000,000
(Ten Million Naira) as general damages against the defendant for wrongfully
withholding claimant’s entitlements.
c. 30% interest on the Judgement sum from the date of
claimant’s letter of demand till the amount is paid.
2.
Upon being served
with the originating process commencing this suit, the defendant on 2/2/2024, filed
its defence, which was deemed properly filed and served on 25/5/2024. In the
defence, the defendant denied the claim of
the claimant and insisted that the claimant is not entitled to his claim.
3.
The claimant
testified in proof of his case as CW1. CW1 adopted his two witness statements
on oath as his evidence in this case. Fourteen documents were tendered in
evidence through CW1 without objection. They were admitted in evidence and
marked as exhibits CWA – CWN. At the end of his evidence in chief, CW1 was
cross examined by counsel for the defendant, thereafter, he was discharged.
4.
The defendant in
proof of its defence called one Rev. Victor Usibe, a civil servant and Director
administration in the office of Secretary to the State government, who
testified as DW1. DW1 adopted his witness statement on oath of 2/2/2024, as his
evidence in this case. Documents were tendered through DW1. DW1 was cross
examined and discharged at the end of cross examination by counsel for the
claimant.
THE CASE OF THE CLAIMANT
5.
The claimant was
engaged as Chairman of Cross River State Board of Internal Revenue Service, on basic
yearly earnings in the sum of N3,600,000.00 (Three Million Six Hundred Thousand
Naira). At the expiration of the term of his employment in 2022, the claimant’s
appointment was renewed and extended to September, 2023. When the extended period
expired, the claimant was relieved of his appointment. However, despite letter
of demand and reminders, the defendant has failed and refused to pay claimant
his severance pay and furniture allowance, in accordance with the public
service remuneration employment laws No. 12 of Cross River State, made up of 300%
of his basic salary as severance grant and another 300% of his basic salary as
furniture allowance.
THE CASE OF THE DEFENDANT
6.
The defendant
admitted appointment of claimant as Chairman Internal Revenue Service of the defendant.
According to the defendant the claimant’s salary and other financial
entitlements are as contained in his letter of appointment and accepted by him
and not on the Public Service Remuneration Law or any other law as claimed. The
sum of N3,600,000.00 per annum, as contained in claimant’s letter of
appointment was the claimant’s annual consolidated salary and not his annual
basic salary as alleged by him. The salary of the claimant is as captured in
his letter of appointment. The claimant is not owed any entitlement as claimed
at all.
REPLY TO STATEMENT OF DEFENCE:
7.
The claimant
insisted that his basic salary is the sum of N300,000.00 per month. The word ‘MAY’ contained in the letter of appointment does
not exempt the claimant from public service remuneration law of Cross River
State 2007. In addition, the law setting up the board which the claimant served
as chairman clearly states in part 1 section 5 of the law that the claimant and
board members shall be paid such remuneration as emolument and allowances as is
applicable in the public service of the state.
All employees of government are either civil servants or public servants
and claimant is a public servant and this is further captured by the report of
the Revenue Mobilization and fiscal Commission issues in 2007 on public servants’
emoluments. The report was adopted by the defendant. The secretary to
government affirmed the operation of the report by the defendant. The defendant
had since 2007 been paying public servant.
THE SUBMISSION OF THE DEFENDANT.
8.
Ededem C. Ani, Esq;
the Learned Attorney-General of Cross River State, adopted the final written
address of the defendant as his argument, wherein a single issue was formulated
for determination, to wit:-
Whether the claimant has discharged the evidential
burden required to entitle him to the reliefs claimed?
9.
In arguing the sole
issue, it was submitted that the general state of the law which rings through
the entire length and breadth of our adversarial system of adjudication is that
the burden in civil cases lies on the party who asserts the affirmative of the
issue. Simply, the law is settled that the burden of proof in civil suits is on
the party who asserts. If the burden is discharge it will shift to the other
party. In support this submission reliance was placed on sections 131 and 133
of the Evidence Act. It is submitted that this settled principles of law were
reiterated by the supreme court in BENJAMIN NWAKUBA IROAGBARA V. UFOMADU (2009)
11 NWLR (PT. 1153) 587.
10.
Counsel also refers
to the cases of SHIDDI V. JIMKUTA (2023) 17 NWLR (PT. 1913) 303, SC.; FOLARIN
V. AGUSTO (2023) 11 NWLR (PT. 1896) 559, SC.; NATIONAL BANK OF NIGERIA LTD V.
DEBORAH OPEOLA (1994) 1 NWLR (PT. 319) 126 AT P. 139; AKINFOSILE V. AJOSE
(1960) SCNLR 447; OKECHUKWU & SONS V. NDAH (1967) NMLR, 368; NSML V.
AFOLABI (1978) 2 SC 79; OMISORE V. AREGBESOLA (2015) 15 NWLR (1482) 205, SC and
AKINBADE V. BABATUNDE (2018) 7 NWLR (PT. 1618) 366, SC where the above
principles of the law were embraced, stated and restated.
11.
It is submitted that
the direct implication of the principles above is that the burden of proof of
entitlement to severance pay and furniture allowance is on the claimant. But the
claimant has failed to discharge the burden of proof required to entitle him to
the reliefs claimed.
12.
It is submitted that
in employment relationships as in the instant case is in the form of
contractual relationships, the terms of which are generally located in the
terms and conditions of employment. The said terms are never abstract but
expressly stated in documents. In support of this contention reliance was
placed on the case of SKYE BANK PLC V. ADEGUN (2024) 15 NWLR (PT.1960) 1, where
the Supreme Court clarified that: “the terms of an employment relationship are
generally contained in the service agreement, letter of employment, employee
handbook or any other document that may be introduced from time to time during
the subsistence of the employer/employee relationship”.
13.
It is submitted that
in the instant case, the terms of the claimant’s appointment were expressly
stated in the claimant’s letter of appointment and the law establishing the
Board where the claimant was Chairman.
14.
It is further argued
that the law is settled that a contract of employment must be construed in
accordance with its express terms and no term is to be implied which is not
rendered reasonably necessary to carry out the main intention of the parties. To
support this contention reliance was placed on the case of IHEZUKWU V.
UNIVERSITY OF JOS (1990) 4 NWLR (PT. 146) 598, p. 608, paras. G-H, where the
supreme court reiterated this settled position of the law as follows:
“learned
counsel on both sides cited and relied on decided cases with reference to the
construction of Exhibit 1, particularly the celebrated case of C.I.O Olaniyan
& Ors v. Unilag Council (1985) 1 All NLR 314; (1985) 2 NWLR (PT. 9) 599. I
am of the opinion that the only principle derived from that case is that the
contract is to be construed in accordance with its express terms and that no
term is to be implied which is not rendered reasonably necessary to carry out
the main intention of the parties. in accordance with this principle, it seems
to me impossible to imply a term that the appellant’s appointment can only be
determined by a three months’ notice on the expiration of the two-year
probationary period, failing which he is entitled to be declared that he is still
in the respondent’s service.”
15.
It is contended
that, it was to forestall a situation where the employers’ intention may be
misconstrued that the terms and conditions of the claimant’s appointment were
stated in the claimant’s letter of appointment dated September 14, 2022,
exhibit CWE, as well as the Revenue Administration Law 2015, exhibit CWG which
is the law establishing the Board of Internal Revenue Service where the
claimant served as Chairman.
16.
It is further argued
that in the claimant’s letter of appointment, the defendant’s contract with the
claimant in relation to remuneration, emolument etc. was very clear and
unambiguous as follows:
“Your
annual salary shall be a consolidated sum of ?3,600,000.00 (Three
Million Six Hundred Thousand Naira) or ?300,000.00 (Three Hundred Thousand Naira) per
month. Any further financial entitlements MAY be as determined by His
Excellency, the Governor”.
17.
The Revenue
Administration Law, exhibit CWG on the other hand is as well very clear, as it limits
the terms and conditions of the Chairman’s appointment to the specifications of
the letter of appointment. See Section 4
(2) and 4 (2) (b) thereof, reproduced hereunder for ease of reference:
(2) “the Chairman and other members of the Board,
other than ex-officio members, shall each hold office-
(2) (b) On such terms and conditions as may be
specified in the letter of appointment pursuant to the provisions of this law”.
18.
It is submitted that
the combined clear and unambiguous stipulations in the two documents that jointly
form the terms and conditions of the claimant’s appointment shown above, leaves
no room for any misinterpretation or misconception whatsoever by making clear
exactly what the claimant’s entitlement was, tying same to the stipulation in
his letter of appointment and emphasizing that any further financial
entitlement was purely discretionary, by the deliberate and intentional use of
the word MAY. The Defendant is therefore not indebted to the claimant having
bound himself to the terms and conditions of the Claimant’s appointment by
paying his salaries and all other benefits enjoyed by the claimant during the
pendency of the claimant’s robust appointment as Chairman, Cross River State
Board of Internal Revenue Service.
19.
Counsel asked, ‘What
then is the issue before the court? The claimant believes that he is entitled
to severance pay and furniture allowance and hinges this claim on the Cross
River State Political, Public and Judicial office holders Remuneration Package
Law, exhibit CWN and section 5 of the Revenue Administration Law, exhibit CWG
which entitles the Chairman and members of the Board to allowances and benefits
as is applicable in the public service of the State.
20.
In response to the
position of the claimant, it is submitted that the claimant is not entitled to
benefit from the Public Officers Remuneration Package Law, exhibit CWN as the
specific beneficiaries of that law were mentioned. But the office of chairman
was given a very restrictive and specific definition which eloquently excluded
the claimant’s office as Chairman of the Board of the Cross River State
Internal Revenue Service. The law contemplated three categories of
beneficiaries selected from the Executive, Legislative and Judicial arms of the
State and Local Governments. See Schedule 1 to the said law.
21.
It is argued that in
the said schedule 1, under the Executive category, specifically item 3, the
word Chairman is asterisked. In the area marked NOTE, also asterisked, chairman
is specifically defined as:
“Chairman of State Civil Service Commission, State
Judicial Service Commission, State Independent Electoral Commission, Local
Government Service Commission and such other Commissions as may be established
by the Act of the State Assembly; Chief of Staff to the Governor”.
22.
Counsel emphasized
that, the phrase “and such other commissions” used in the law is generic. Other
than the Local Government Service Commission which is the Local Government’s
version of the State Civil Service Commission first mentioned, the rest of the
named commissions have constitutional flavour having all been established under
Section 197 (a) (b) and (c) of the 1999 Constitution of the Federal Republic of
Nigeria (as Altered). This simply clarifies the nature of commissions
contemplated by the phrase “and such other commissions” and effectively
excludes the Board of internal Revenue service or any other Board at all. It is
submitted that the Ejusdem generis rule of interpretation may be called in aid
and the rule is to the effect that when specific words are used in a statute
and general words follow, the general words are not to be read at large but in
line with the specific words. In support of this submission, counsel relied on
the cases of CHIEF JOSEPH ADOLO OKOTIE EBOH V. CHIEF JAMES EBIOWO MANAGER &
2 ORS (2004) 18 NWLR (PT. 905) 242, AT 282 PARAS C-D, OKEWU V. FEDERAL REPUBLIC
OF NIGERIA (2012) 9 NWLR (PT.1305) 327; OKUNEYE V. FIRST BANK OF NIGERIA PLC
(1996) 6 NWLR (PT. 457) 749. According to counsel in these cases ejusdem
generis rule of interpretation was applied.
23.
Counsel also refers
to the case of MOBIL PRODUCING (NIG) UNLTD V. FIRS (2021) 11 NWLR (PT. 1788)
485, where the Court of Appeal said at p. 533-534, paragraphs A-F:
“The
ejusdem generis rule of interpretation denotes that when a general word or
phrase follows a list of specific persons or things, the general word or phrase
is interpreted to include only persons or things of the same type as those
listed. It is a question of an assumed intention of a statute. This canon of
interpretation of statute is applicable in the instant case. It is decipherable
from the phraseology of paragraph of section 10 (1) of the Petroleum Profits
Tax Act that it terminates with the phrase “other like charges” after listing
certain liabilities that could enure to the Federal Government from a company
involved in petroleum operations. Those liabilities are duty, customs and
excise duties, stamp duties, education tax, tax or any other rate or fee. The
general phrase “other like charges” is limited to the species of liabilities
enumerated in the paragraph. A penalty falls outside the wide class of
liabilities listed in the paragraph. In essence, the phrase “other like
charges” does not encompass penalty so as to qualify as outgoings and expenses
wholly, exclusively and necessarily incurred by the appellant between 2006-2008
accounting periods, which is amenable to be tax deductible in computing the
adjusted profits of the appellant. Jammal Steel Structures Ltd v. ACB (1973) 8
NSCC 619; OYENIRAN V. EGBETOLA (1997) 5 NWLR (PT. 504) 122; SPDCN LTD V. FBIR
(1996) 8 NWLR (PT. 466) 256.
24.
Counsel submitted
that the courts have held that the primary duty of the court is to declare what
the law is and not to formulate one. It is a serious infraction of the
rudimentary and traditional role of a court to factor in what is not included
in a statute. Statutes must be interpreted for the sole purpose of discovering
the intention of the legislature and giving effect to same. See IDEHEN V,
IDEHEN (1991) 6 NWLR (PT. 198) 382; OLANREWAJU V. GOV OYO STATE (1992) 9 NWLR
(PT. 265) 335; GBAGBARIGHA V. TORUEMI (2013) 6 NWLR (PT. 1350 289.
25.
Counsel submitted
that in the instant case, the intention
of the legislature may be best served by the application of the ejusdem generis
rule of interpretation and if this rule of interpretation is applied to
construe the meaning of “such other commissions” used in the Remuneration
Package Law, this honourable court will be left with no other meaning than
that, Chairmen of Commissions set up by the Constitution and not Chairmen of
Board of Internal Revenue Service or any other Board at all is what is
contemplated by the law.
26.
It is also submitted
that during the hearing, the claimant when asked to read Section 1 of the
Revenue Administration Law which established the Internal Revenue Service
Board, the claimant clarified first that, the Cross River State Internal
Revenue Service was established as a Board and not as a Commission. The
claimant further clarified that he was not a chairman of any of the listed
Commissions.
27.
Counsel further
submitted that the express mention of the specific chairmen of commissions in
the said schedule, is the exclusion of Chairmen of Boards not mentioned. It is
a recognized canon of interpretation that the express mention of a specific
thing is the exclusion of other things not mentioned encapsulated in the latin
maxim as expression unius est exclusion alterius or inclusion unius exclusion
alteruius or renumeratio unuis, exclusion alteruis. See MOBIL PRODUCING (NIG)
UNLTD V. FIRS (2021) supra. At page 532-533, paras H-C; EHUWA V. O.S.I.E.C
(2006) 18 NWLR (PT.1012) 544.
28.
It is also the
submission of counsel that the defendant further submits that exhibit CW1, Letter
dated 21st May, 2007 from the Revenue Mobilization Allocation and
Fiscal Commission and exhibit CWM, Memo from the SSG to His Excellency
introduced in the claimant’s reply do not dispute the defendant’s defence in
any way and cannot help the claimant’s case or assist this honourable court to
grant the reliefs sought.
29.
Counsel submitted
that exhibit CWI, is a report on the revised remuneration package for
political, public and judicial office holders as seen on the face of the
letter. First, the letter was addressed to the Sokoto State Governor at the
time Alhaji (Dr. Attahiru Bafarawa) on the basis of an earlier clarification
sought by him on the inclusion of permanent secretaries in the commission’s
report. Suffice it to say that there was no question in Cross River State as to
the beneficiaries of the said law. The reply was merely copied to the Governors
of the other 36 states of Nigeria. The letter clarified that Heads of Service
and Permanent Secretaries of States may enjoy the revised remuneration package
if they are deemed to be political appointees at the State level as it is at
the Federal level but not if they are career civil servants as it is in Cross
River State.
30.
According to counsel
exhibit CWM, is a Memo from the
Secretary to the State Government (SSG) to His Excellency, the Governor of
Cross River State merely brought the said clarification viz a viz the
Remuneration Package Law to the Governor’s attention. The letter also clarified
the mode of payment to existing beneficiaries of the said law. It could not
have added to and in fact did not add to the law what was not already there.
Thankfully, there is in the said memo, a schedule and yet again in that
schedule, there is no provision made for Chairman Board of Internal Revenue
Service or any other Board at all.
Column three on the said schedule is clear as to the beneficiaries i.e.,
“SSG, HEAD OF SERVICE, COMMISSIONERS, COMM.CHAIRMEN, CHIEF OF STAFF”. During
the claimant’s cross examination, the claimant was specifically asked if he was
a Permanent Secretary or Head of Service or all the offices listed in the
schedule and he answered no. The claimant was again asked to confirm that
Exhibit CWM i.e., the Memo from the SSG to His Excellency, was made pursuant to
the CRS Public Officers Remuneration Package Law i.e., exhibit CWN and he
confirmed same.
31.
The claimant thus,
failed to point to the court in the direction of how he came to the conclusion
that the law was made for his benefit and unfortunately, neither can the
defendant or the court.
32.
To cement the arguments
above, the defendant submits that the claimant’s claim to be entitled to
severance pay and furniture allowance under the said law is grossly
misconceived. This can further be inferred by the claimant’s Annual basic
salary which was ?3,600.000.00 and cannot be found in the schedule
to the said law. What is rather provided for in the said schedule,
specifically, item 3 that contemplates specific chairmen is ?1,176.758.00.
33.
It is also submitted
that during his cross examination, the claimant was asked how much his monthly
basic salary was and he said ?300,000.00. If this sum is multiplied by 12
months, it would amount to ?3,600.000.00, so the claimant was further asked to
show the court where the said ?3,600.000.00 could be found in the schedule and the
claimant specifically said that there was no annual basic salary of the said
sum contained in the CRS Public Officers Remuneration Package Law exhibit CWN,
for any of the office holders provided for therein.
34.
Finally, it is
submitted that the Remuneration Package Law is quite specific as to its
intended beneficiaries, the direct consequence of this is that no court can
expand the beneficiaries to include the Claimants former office i.e., Chairman,
Board of the Cross River State Internal Revenue Service. In making this
contention, counsel relied on the settled principle of law that when a law
provides a particular way/method of doing a thing, that method and no other,
may be followed; whatever is done in contravention of those provisions amounts
to a nullity. See AGBI V. FEDERAL REPUBLIC OF NIGERIA (2020) 15 NWLR (PT. 1748)
416 AT P. 462, PARAS D-E. See also MOBIL PRODUCING NIG. UNLTD V. JOHNSON (2018)
14 NWLR (PT. 1639) 329.
35.
Counsel
submitted that for all the reasons given
and the arguments advanced above, any invitation to read into the Remuneration
Package Law and the Memo which clarified same, what is not there should be
rejected by this Honourable court. What this honourable court should do is
insist on the clear and unambiguous wordings of the claimant’s contract as
contained in his letter of appointment reproduced at the expense of repetition
as follows: “Your annual salary shall be a consolidated sum of ?3,600,000.00
(Three Million Six Hundred Thousand Naira) or ?300,000.00 (Three
Hundred Thousand Naira) per month. Any further financial entitlements MAY be as
determined by His Excellency, the Governor”. The law remains that where the
wordings of a statute are clear and unambiguous, the court is bound by the
plain words contained therein. See OKWUEZE V. EJIOFOR (2000) 15 NWLR 9PT. 690)
389 AT P. 410 PARA D-E; a court must not while interpreting a statute whose
wordings are clear and unambiguous, import into it something which is not
contained in it. See BELLO V. AG OYO STATE (1985) 5 NWLR (PT. 45) 828; clear
and unambiguous words of a statute should be given their plain, ordinary,
grammatical and literal meaning without any qualification. See UNEGBU V. UNEGBU
(2004) 11 NWLR (PT. 884) 332; KASSIM V. ADESEMOWO (2021) 18 NWLR (PT 1807) 67.
36.
Counsel urged the
court to find and hold that the claimant has not proved his case on the
preponderance of evidence and dismiss the instant suit for being not only
severely frivolous but also wanting in bonafide and gold digging.
THE SUBMISSION OF THE CLAIMANT.
37.
S. O. Onah, Esq; counsel
for the claimant adopted the claimant’s final written address franked by him as
his argument in this case. In the final written address, three issues were
formulated for determination. They are as follows:-
1. Whether claimant’s claim is not contained in the Cross
River State Public Officers Remuneration Package Law, exhibit CWN.
2. Whether the 4th paragraph in claimant
letter of appointment connotes that claimant is not supposed to benefit from
the Cross River State Remuneration Law for Political, public and Judicial
Office holders No. 12 of 2007, as argued by defendant.
3. Whether claimant has proved his case based on the
documentary evidence before the court.
ARGUMENT:
38.
Issue 1: Whether
claimant’s claim is not contained in the Cross River State Public Officers
Remuneration Package Law, exhibit CWN.
39.
In arguing issue 1,
counsel submitted that the law setting up the establishment where Claimant
worked, exhibit CWG, the Cross River State Revenue Administration law states
very clearly in Part 1 section 5 (with the side note) emoluments etc of members
stated that:
‘The Chairman and board members shall be paid such
emoluments, allowances and benefits as is applicable in the Public service of
the State’
40.
According to counsel
the question that arises from the above provisions is what law governs
emoluments, allowances and benefits of appointees of the defendant in the
Public Service of Cross River State?
41.
In giving answer to
the question posed counsel submitted that as at the time of Claimant’s
appointment and till this moment only one law is in operation that governs
emoluments, allowances and benefits of Public Office holders in the State and
that is the Cross River State Public Office holders Remuneration Package law, exhibit
CWN.
42.
According to counsel
for the defendant’s argument to be sustained that the Claimant is not listed as
a beneficiary of an existing law, there should be a law or a document to that
effect. Because the burden of proof for this negative assertion lies on the
defendant. To support his contention counsel relied on the case of Onyenge
& Ors v Ebere & Ors (2004) AFWLR (Pt.219) 981 @ 995 SC. Counsel submitted that the defendant owed this
court an obligation to aver to the contrary that notwithstanding the provisions
contained in exhibit CWG and exhibit CWN, a further document that is not before
this Court exist to exempts the Claimant from being a beneficiary of the Cross
River State remuneration law for Political, Public and Judicial Office Holders
No.12 of 2007. And since such document is not before this Court, counsel invited
the court to rely on the literal rule of interpretation in which the courts are
enjoined to ascertain the meaning of the words used by reading them in their
ordinary grammatical sense and to give effect to them unless such construction
would lead to some absurdity or would be repugnant to the intention to be
collected from parts of the statute. To support his submission counsel relied
on the case of Buhari v Obasanjo (2005) AFWLR (Pt.273) Pg. 1 SC @ Pages
133-134, paras H-A Per Belgore JSC.
43.
According to counsel
what therefore is the meaning of the words used in the grammatical sense of the
Cross River Remuneration package for Political, Public and judicial officers as
contained in schedule A, when it says ‘Chairman of state civil service
commission, state Judicial Service Commission, State independent Electoral
Commission and such other Commissions as may be established by the Act of the
State Assembly; Chief of Staff to the Governor’.
44.
Counsel submitted
that the two issues that arises from the above provisions as underlined for
ease of reference are; such other Commission and, as may be established by the
Act of the State Assembly.
45.
Counsel refers to the
meaning of word ‘COMMISSION’ as defined by Black’s law dictionary and it states
that:
‘It is a body of persons acting under lawful
authority to perform a public service’.
46.
Counsel also
submitted the question that arises from this definition is whether the board or
the Internal revenue service is a body of persons acting under lawful authority
and performing a public service?
47.
Counsel answered in
the affirmative because the powers and functions of the board are contained in
Section 6 & 7 of exhibit CWG, it is therefore a Commission notwithstanding
the absence of the word Commission in its name because it is established by the
Act of the State Assembly as captured in schedule A, exhibit CWN. For counsel this
also account for why the law establishing the Internal revenue service says
that the Chairman and its members shall be paid such emoluments, allowances and
benefits as is applicable in the Public Service of the State Part 1 section 5, exhibit
CWG.
48.
Counsel submitted
that it is an accepted principle of interpretation of statutes that a Court can
supply an omission in a law to ensure reasonableness. To support this
contention counsel relied on the case of Olaleye-Ote v Babalola (2012) 6 NWLR (
Pt. 1297) Page 574 @ 593. Per Galadima JSC.
49.
Counsel submitted
that all that this honourable Court need do in this case is follow the facts,
the law (whether the board was established by the Acts of the State Assembly)
and the literal grammatical definition of the word ‘Commission’ to supply the
omission in the Cross River Public Service Remuneration law to ensure
reasonableness. This according to counsel surely is the way to go because in the
interpretation of statute, where It’s interpretation will result in defeating
its object, the court will not lend its weight to such interpretation that will
result in defeating its object. The language of the statute must not be
stretched to defeat the aim of the statute. In other words, the interpretation
which appears to defeat the intention of the legislative(sic) should be by
passed in favour of that which favours the object of the Act. On this
contention counsel relied on the case of Onochie v Odogwu (2006) 6 NWLR (Pt.
975) Page 65 @ 88-89 Per Ogbuagu JSC.
50.
Counsel continued his
submission that the import of the above authority as it relates to the Cross
River Remuneration Package law is that if the law setting up the board of the
Internal revenue Service has stated that board members are to be paid such
emoluments, allowances and benefits as is applicable in Public Service of the
State and there is only a law that
governs remuneration for Public, Political and Judicial Office Holders,
then this Court should give the interpretation which favours the object of the
act and by passed the interpretation which appears to defeat the intention of
the legislative(sic). This is because there is no other law that provides for
such emoluments, allowances and benefits as is applicable in public service of
the State other than exhibit CWN, that is before this Court. Unless probably
the court is of the view that the Claimant should not be remunerated for his
Service in growing the state’s Internal revenue for 5 years. To so hold will be
to jettison the provisions of Part 1 section 5 of the Cross River Revenue law
that specifically provides that emoluments and benefits of the Chairman and board
members of the Internal revenue Service shall be remunerated in accordance with
the Public Service holders.
51.
Counsel further
argued that the Chairman and board members of the Internal Revenue Service are
captured by the Cross River Remuneration law in view of the definition of the
‘Public Service of a State’ as contained in 1999 constitution of the federal
republic of Nigeria as amended. Section 318 (1) which is the interpretation
provisions states
‘Public service of a state means the service of the
state in any capacity in respect of the government of the state and includes
service as-
(a)
(b)
(c) member
or staff of any commission or authority established for the state by this
constitution or by a law of a House of Assembly;
52.
Counsel urged the
court to hold that the internal revenue service having been established by a
law of the house of assembly is a
Public Service within Cross River State. Because according to counsel it
is an Authority or Commission provided for within the Cross River Remuneration
package law as there is no law excluding it thereto. And the Claimant as an
outgone Chairman of the establishment is entitled to the Severance package
contained therein.
53.
Counsel in concluding
his submission on the interpretation of exhibit CWN, refers to the case of Seaford
Court Estates Ltd v Asher (1949) 2KB 481 @ 498-499; where Lord Denning, stated
thus:-
‘A judge … must set to work on the constructive
task of finding the intention of parliament, and he must do this not only from
the language of the statute, but also from the consideration of the social
conditions which gave rise to it, and of the mischief which it was passed to
remedy, and then he must supplement the written word so as to give ‘force and
life to the intention of the legislature’.
54.
Issue 2: Whether the
4th paragraph in claimant letter of appointment connotes that
claimant is not supposed to benefit from the Cross River State Remuneration Law
for Political, public and Judicial Office holders No. 12 of 2007, as argued by
defendant.
55.
Counsel submitted the
issue here as contended by the defendant is that the clause contained in
Claimant’s letter of engagement excludes Claimant from benefitting from the
remuneration law, exhibit CWG. The
wordings in the 4th paragraph of exhibit CWE reads:
‘Your annual salary shall be a consolidated sum of N3,600,000.00 (Three million six hundred
thousand naira) or N300,000.00 per
month. Any Further financial entitlement may be as determined by his
Excellency, the Governor.
56.
Also, the defendant
contends that, Section 4 (2) 4(2)(b) of the Revenue Administration Law, exhibit
CWG, reproduced hereunder for ease of reference, it states:-
(2) ‘the Chairman and other members of the board,
other than ex-officio Members, shall each hold office.
(b) on such terms and conditions as may be
specified in the letter of appointment pursuant to the provisions of this law.
57.
Counsel in response
stated that the wordings of the 4th paragraph in claimant’s letter
of appointment exhibit CWE, can in no way exempt the claimant from being a
beneficiary of exhibit CWN. As the wordings for all intents and purposes cannot
by any stretch of imagination or interpretation which is even though not even
so stated override an existing legislation, exhibit CWG. On this submission
counsel relied on the case of Governor of Oyo State v Oba Ololade Afolayan
(1995) 8 NWLR (Pt. 413) page 292 SC @ Pages 310-311. Per Wali JSC.
58.
According to counsel,
the claim of the claimant is for severance grant. And as the word imply, it is
only due to every applicant at the expiration of his service to the defendant.
It is therefore not a discretionary grant that His Excellency, the Governor can
deny or withhold from an applicant except the applicant is not an Appointee of
the defendant within the remuneration package law.
59.
Counsel also submitted
that the wordings contained in the 4th paragraph of Claimant’s
letter of appointment has nothing whatsoever to do with the Claimant’s claim
before this honourable Court. Counsel urged the court to discountenance
defendant’s arguments and submissions with respect to the CWG.
60.
Finally, on the argument
that the claimant and board members are to hold office based on their letters
of appointment pursuant to the
Revenue
Law, it is submitted their letters of appointment must be pursuant and subject
to the law establishing the Revenue service and not otherwise. In other words
the law establishing the board regulate their letters of appointment and the
content of their letters must conform to
exhibit CWG. purport of se provisions
is that their is issue, counsel for the claimant has argued that the by the argument
of the defendant which is based on the Revenue law, that Claimant and the board
members are to hold office based on their letters of appointment pursuant to
the Revenue law.
61.
It is submitted that
the purport of these provisions is that the letter of appointment must be
pursuant and subject to the law establishing the Revenue service and not
otherwise. In other words, the law establishing the board regulates their
letters of appointment and the content of their letter must conform to exhibit
CWG. And with respect, that is our jurisprudence as the law is the foundation
of every action and inactions. Anything to the contrary is ultra-vires the law.
62.
Claimant’s
appointment, screening etc were based on the law establishing the Internal
revenue service and the letter of appointment was and must be issued pursuant
to the said law. Any content in his letter of appointment that is not in tandem
with the law setting up the place obviously will be a nullity irrespective of
who signs the letter of appointment. Jegede & anor v INEC & Ors (2021)
LPELR- 55481 SC Akande v Jegede (2022) LPELR-58911 SC.
63.
It is submitted that the
Claimant is entitled to the emoluments and benefits as contained in Cross River
State remuneration law for Political, Public and Judicial office Holders No.12
of 2007. Counsel urged the court to rely on the provisions contained in exhibit
CWG and hold that the only remunerations existing for public office holders is
the one before this honourable Court. As the defendant have not presented any
law exempting the Claimant from being a beneficiary of the law.
64.
According to counsel,
the court has been enjoined to adhere to the purposes of a provision where the
history of the legislation indicates to the court the object of a legislature
in enacting the provision. In support of this contention counsel relied on the
case of Fidelity bank Plc v Monye (2012) AFWLR (Pt. 631) Page 1412 @ 1438 Para.
D per Adekeye JSC.
65.
Counsel posited that
the history of the legislation of both CWG and CWN is to ensure that Political
and Public office holders are paid Severance and other allowances at the
expiration of their tenure of office with the defendant. The Claimant is one of
those public office holders having grown and managed the revenue and Taxes for
the defendant over a five-year period. Counsel urged the court to grant
Claimant’s Claim for severance entitlement based on exhibit CWA, CWB, CWC which
is calculated on Claimant basic pay of N300,000.
66.
Issue 3: Whether
claimant has proved his case based on the documentary evidence before the
court.
67.
It is submitted that
the Claimant has proved his case based on the documentary facts before this
court. The defendant’s defence to claimant’s claim is narrowed to the fact that
exhibit CWN, did not expressly mention the claimant as beneficiary and the 4th
paragraph of claimant’s letter of appointment is restrictive.
68.
Counsel submitted that
the defendant’s defence to the Claimant’s claim can only be upheld, if the
defendant exhibits a law or document that expressly excludes the Claimant as a
Public office holder or that the board under which the Claimant served was not
cloth with authority to carry out a public Service as so defined. Failure to
bring this law before this Court leaves this Court with no option than to only
look at the documents and laws as admitted in evidence and grant Claimant’s
Claim. The Claimant’s terms of
employment run through this exhibits CWF, CWG, and CWN, the law is that where
more than one document provides for the terms of a contract, such document must
be construed jointly in order to have the correct and total account of what the
terms of the contracts are. Ladipo v Chevron Nigeria Ltd (2005) AFWLR
(Pt.260)133 @142.
69.
Counsel submitted
that the case before this court is based on documentary evidence. The Claimant
in proof of his case against the defendant has exhibited the necessary
documents which has been admitted in evidence and linked same as its terms of
contract with the defendant. Even the amount claimed by the Claimant is not in
dispute because defendant position is not as to quantum but that Claimant is
not entitled to any of the remuneration contained in the Cross River
Remuneration package law N0 12. 2007. DW1 express this same position when asked
what amount was Claimant entitled to during cross examination.
70.
Counsel submitted that
the basis for Claimant appointment by the defendant is founded on exhibit CWG
(Cross River Revenue law), which contents (by the provision of part 1 section
5) can be found in exhibit CWN.
71.
Counsel submitted
that the defendant’s argument on exhibit CWN most is narrowed. Claimant
establishment is not expressly mentioned and we have countered same by defining
‘Commission’ and placed reliance on the fact that the internal revenue was
established by the Act of the State assembly. The law is that in determining
the general object of the legislature in a particular passage, the court should
adopt that which appears to be most in accord with convenience, reason, justice
and legal principles should in all cases of doubtful significance, be presumed
to be the true one. Alamieseigha v Teiwa & Ors (2002) FWLR (Pt. 96) 552 @
572.
72.
Counsel urged the
court to interpret exhibit CWN based on justice and reasonableness and find
that Claimant has proved his case that he is a public office holder and
entitled to the benefits in COLUMN 5 OF SCHEDULE 11; FIXED RATES OF ALLOWANCES
AND FRINGE BENEFITS. A. EXECUTIVE, FURNITURE ALLOWANCES, SEVERANCE GRANT.
REPLY ON POINTS OF LAW:
73.
On the argument that
defendant is to produce the law or document that excludes the claimant, it is
submitted that this proposition by the claimant is not the law and is in law
absurd. When it comes to documents, the law is very clear and very settled, it
is the document that would speak for itself. Courts have warned while
interpreting a statute whose wordings are clear and unambiguous, they must not
import into something which clear and unambiguous words of a statute should be
given their plain, ordinary, grammatical meaning without any qualification is
not contained in it. See Bello v AG Oyo state (1985) 5 NWLR (Pt.45) 828;. See
Unegbu v Unegbu (2004) 11 NWLR (Pt.884) 332; Kassim v Adesemowo (2021) 18 NWLR
(Pt.1807) 67. The search for an extraneous document that would speak to the
clear and unambiguous provisions of a law as claimant is requesting, is not a
requirement of the law.
74.
Counsel further
argued that when a law provides a particular way/method of doing a things, that
method and no other, may be followed; whatever is done in contravention of
those provisions amounts a nullity. Agbu
FRN (2020) 15 NWLR (Pt.1748) 416 at 462, Mobil Producing Nig. Unltd v Johnson
(2018) 14 NWLR (Pt.1639) 329.
75.
Counsel submitted
that by limiting itself to specific office holders and defining what chairmen
means, the Remuneration package law clearly did not in tend that chairman of
boards set up under agencies, services or any other type of chairmen should
partake or benefit from its provisions except to exclude them from it. The
claimant has gone on a frolic of his own to provide the dictionary meaning of
the word commission to mean ‘a body of persons acting under lawful authority to
perform a public service’. It is submitted applying this definition would mean
that all bodies of persons acting under lawful authority and performing a
public service should be paid severance and furniture allowances. This is exactly what the law
sought to avoid by streamlining the definition of chairmen to specific
beneficiaries as it did.
76.
On the issue that
because board members are to be paid such emoluments, allowances, benefits
applicable in the public service of the
state, the clamant should automatically partake of the benefits of the
remuneration package law since no other law governs remuneration for public,
political and judicial office holders, is severely flawed. It is submitted if
the Revenue administration law directs the claimant to some type of benefits
applicable in the public service of the
state. The correct question should be what are the emoluments, allowances and
benefits applicable in the public service of the state?.
77.
According to counsel
to answer this question correctly, the appropriate place to look would be the Cross
River State public service rules, 2004, which regulate the public service and provides benefits for public servants. It
is submitted nowhere in the entire gamut of the Cross River State public
service rules, 2004 is severance allowance or furniture allowance provided for.
it is the duty of the claimant to direct the court to the portion of the public
service rules that entitles him to the claimed allowance. The claimant is not
in any position to run a different law that clearly excludes him and claim to
be a beneficiary therefrom because the public service rules or any other law do
not provide for his desired severance allowance and furniture allowance.
78.
It is further
submitted that it was the intention of any law that regulates the claimant’s
appointment that the chairman of the board of internal Revenue Service, which
the claimant was should take a benefit generally enjoyed by some political
office holders. The revenue Administration Law requires the chairman of the
board to be appointed from within the state service. Section 3(1)(a) of the Revenue
administration Law, 2011 amendment, 2015 the claimant’s appointment that
79.
Thus, why the
claimant was first appointed as a director in the service before his
appointment as chairman. It was not the intention of any
law that regulates the claimant’s appointment that the chairman of the
service which the claimant was should take a benefit generally enjoyed by some
public or political office holders.
80.
It is submitted that
if claimant insists that by that provision of the Revenue Administration Law,
he was a Public Servant, then it is submitted that the claimant as Chairman of
the Service was not a member of the Public Service of the State or a public servant
as canvassed by him this is because the courts have categorically excluded political
office holders from the definition of the public service either of the State or
Federation. The courts have categorically held that political office holders do
not fall within the ambit of section 318 (1) of the Constitution as the claimant
has argued. In support of this contention counsel refers this honourable court
to the case of DADA V, ADEYEYE, 2005, 6 NWLR (PT. 920) 1AT PAGE 20 PARA H-PAGE
20, PARA C and 24 Paras A-B.
81.
Consequently, while
the Claimant who is not a public servant may be entitled to benefits applicable
in the public service of the state by operation of the Revenue Administration
Law, the burden to direct this court to the portion of the Public Service Rules
that applies to him, lies strictly on him and this the claimant has failed to
do.
82.
On the Claimant’s
third issue, the Claimant has argued that the wordings of the Claimant’s
appointment letter cannot override the provisions of Statute i.e. the
Remuneration Package Law.
83.
It is submitted with
the greatest respect that the Claimant’s appointment is regulated by the terms
and conditions of his appointment and nothing else. To ascertain the terms and
conditions thereof, this honourable court is to look only to the Claimant’s
letter of appointment and the Revenue Administration Law which established the Board
under which the Claimant was Chairman, The Remuneration Package Law is not a
factor to be considered in constructing the terms and conditions of the
Claimant’s appointment and cannot be construed in a way that can vary the clear
wordings of the letter of appointment. The defendant’s case is that the
claimant was issued an appointment letter that clearly specified the
defendant’s obligations to him i.e., “your annual salary shall be a
consolidated sum of N3,600,000.00 (Three Million Six Hundred Thousand Naira) or
N300,000.00 (Three Hundred Thousand Naira) per month. Any other financial
entitlements may he as determined by his Excellency, the Governor”. It was not
the defendant’s intention to be circumscribed by any existing or non-existing
law. The defendant fulfilled its obligation to the claimant in this regard
through out the tenure of the claimant’s appointment. By inserting this kind of
clause in the claimant’s letter of appointment, the defendant had made it clear
from the onset that all it offered was all it was willing to give. By the same
clause, the defendant absolved itself of any obligation under any existing law,
what ever that law may be. The claimant who accepted the terms contained in the
letter of appointment unconditionally, cannot tum around to dispute same. The
law remains that when the terms of any contract has been reduced to form of a
document, no evidence can be given of the tenets of the contract except the
document itself or secondary evidence of its contents. A. J. Adeka v M.A. Vaatta
(1987) 1 NWLR (Pt.48) 134.
84.
It is submitted that
where parties enter into a contract, they are bound by the terms thereof, and
it is unfair to read into such a contract, terms on which there is no agreement,
See BABA V, Nigerian Civil Aviation Center (1991) S NWLR (PT, 192) P, 388; UBN
LTD. V. UMEH & SONS LTD (1995) I
IVWLR (PT, 426) P, 565; KOIKI V,MAGNUSSON (1999) 8 NWLR (PT, 5150 P, 493 AT P,
514). See also GWANI V. EBULE (1990) 5 NWLR (PT. 149) P. 201 ATP. 215,where the
court categorically said:
a. “a court cannot rewrite a contract for the parties,
their obligations and intentions to be bound by them are set out in the
document. Nothing extraneous could be
read into it, it is trite that if
parties for all outward intents and purposes agreed in the same form, upon the same subject matter, neither can deny that he intended to agree.
85.
In the circumstances,
this honourable court is most respectfully urged to discountenance all
authorities and arguments put forward by the Claimant in its written final address
and find and hold that the claimant has failed to discharge the burden of proof
required to entitle him to the reliefs sought and dismiss the claimant’s claims
with cost in favour of the defendant.
COURT’S
DECISION:
86.
I have considered the processes filed by the parties and taken time to
calmly read through the facts and evidence adduced by the parties. I have also
taken time to scrutinize the several documents tendered and admitted in
evidence. I have also considered the enlightening and weighty submissions of
learned counsel for the parties, carefully noting the several decided cases
relied upon by them.
87.
Coming to the determination of the claim before the court, it has been established by a long line of decided cases and as argued by
the Learned Attorney-General that the burden of proof in civil cases like the
case at hand rests always on he who asserts. Therefore, the burden is on the
Claimant in the instant case to prove that he is entitled to the reliefs
sought. It is when the Claimant has discharged this burden or onus of proof by adducing
sufficient cogent, credible and admissible evidence establishing his claim that
the burden shift to the Defendant. This is because the Burden of proof in civil
cases or matters is not static and may shift in the course of proceedings in a
case, depending on the state of pleadings at various stages. But, in any event,
the initial evidential Burden of introducing evidence to prove a claim to a
legal right or liability based on the assertions of facts upon which right or
liability is claimed, is placed on the Claimant and until it is satisfactorily
discharged on the balance of probabilities or preponderance of evidence as
required under section 134 of the Evidence Act 2011, it does not shift pursuant
to section 133(1) of the Act. In this case, the Claimant, is the once that
desired this court to enter judgment in his favour on his claim for the sum of
N21,600,000.00 (Twenty-One Million, Six Hundred Thousand Naira), being
severance and furniture allowance, as provided for in the Cross River State
Political, Public and Judicial Office Holders Remuneration Law No. 12 of 2007,
the sum of N10,000,000.00 (Ten Million Naira) being general damages against the
defendant for wrongful withholding of claimant’s entitlements and 30% interest
on the judgment sum from the date of claimant’s letter of demand till the
amount is paid.
88.
Therefore, the Claimant bore the
initial evidential Burden of proving the facts he asserted and on which he
based his claim, if judgment is to be entered in his favour. See Adegoke v.
Adibi (1992) 5 NWLR (Pt.242) 410; Agu v. Nnaji (2002) 18 NWLR (Pt.798) 103;
Onwuama v. Ezeokoli (2002) 5 NWLR (Pt.760) 353; Oyovbiare v. Omamurhonu (1999)
10 NWLR (Pt. 621) 23; Ike v. Ugboaja(1993) 6 NWLR (Pt.301) 539; Onobruchere v.
Esegine (1986) 1 NWLR (Pt.19) 799; G. & T. (Inv.) Ltd. v. Witt & Bush
Ltd. (2011) 8 NWLR (Pt. 1250) 500; UTC Nigeria Ltd. v. Phillips (2012) 6 NWLR
(Pt. 1295) 136; Ikogu v. L.P.D.C. (2009) 17 NWLR (Pt. 1171); Nduul v. Wayo (2018) 16
NWLR (Pt. 1646) 548; U.B.N. Plc v. Ravih Abdul & Co. Ltd (2019) 3 NWLR (Pt. 1659) 203.
89.
What emerges from the above cited cases
is that burden of proof in civil cases is of two types. The first which is
termed legal burden is the ability of a Claimant asserting positively to
establish and prove the entire or reasonable portion of his case before a court
of law that can give judgment in his favour. This is always constantly on the
Claimant. The other type is related to particular facts or issues which a party
claims exist. It is this Burden of proof that oscillates from one party to the
other. While the first type of Burden of proof is called legal Burden or the
Burden of establishing a case, the second one is called evidential Burden. See
Ogwule Ankpa Agatu Co-operative Group Farming Society v. Nigeria Agricultural
and Cooperative Bank (1999) 2 NWLR (Pt.590) 234.
90.
From the 3 reliefs being sought by the Claimant, the first relief is
the main claim. while the other two reliefs are ancillary or appendages to the
main relief. The success of the other two reliefs depends on the success of the
main relief.
91.
In determining a case the court is enjoined by law to restrict its
consideration of the case to the reliefs contained in the claim. Put it
differently the court has no power to deviate or jettison the claim of the
claimant as adumbrated by the reliefs. In other words, the claim is determined
by the reliefs being sought. See Gabriel
Ativie V Kabelmetal (Nig.) Ltd (2008) LPELR-591(SC); (2008) 10 NWLR (Pt.1095)
399; (2008) 5-6 SC (Pt.ii) 47, where the apex has this to say:-
‘‘A claim is circumscribed by the reliefs claimed. The duty
of a Plaintiff therefore is to plead only such facts and materials as are
necessary to sustain the reliefs and adduce evidence to prove same. He may, at
the end of the day obtain all the reliefs claimed or less. He never gets more.
Nor does he obtain reliefs not claimed. A court is therefore bound to grant
only the reliefs claimed. It cannot grant reliefs not claimed.’’
92.
In line with the above dictum this court in
determining the case of the claimant will be guided by the reliefs being
sought. In the circumstances, I shall now consider the reliefs sought by the
Claimant vis-à-vis the evidence adduced before the Court so as to see whether
the Claimant has justified granting of any of the reliefs being sought.
93.
The first relief which is the main relief is for
payment of the sum of N21,600,00000 (Twenty-One Million, Six Hundred Thousand
Naira) being claim for severance benefit and furniture allowance. Being claim
for entitlement, the claimant has the bounden duty to prove his
entitlement to the reliefs by adducing
cogent credible evidence evidencing his entitlement to the said claim. This
burden can be discharged by the claimant, if he is able to refer the court to
the law, conditions of service, agreement or document that granted the
entitlement. In his attempt to prove his entitlement to the reliefs being
sought the claimant relied on the provisions of the Cross River State
Political, Public and Judicial Office Holders Remuneration Package Law, N0 12,
2007, (hereinafter referred to as ‘the Law No. 12’’). The use of the word ‘MAY’ in his letter of
appointment did not exempt him from taking the benefit contained in the Law No.
12.
94.
To further support his claim, the claimant relied
on the provision of section 5 of the Revenue Administration, Law, that provides
for the claimant and Board members to be paid emoluments and allowances as is
applicable in the public service of the state. The claimant stated that as
public servant he is entitled to benefit from Law No. 12.
95.
The defendant in denial of claimant’s claim
stated that the sum of N3,600,00.00 per annum provided for in the letter of
employment was the claimant’s annual consolidated salary and not his basic
salary as alleged in paragraph 7 and 11 of the statement of facts. The
claimant’s salary and other financial entitlements as captured in the
claimant’s letter of appointment and accepted by him upon assumption of office,
were not based on Law No. 12. It is also the case of the defendant that the
claimant’s letter of appointment was explicit that the further financial
entitlements MAY be determined by the Governor and this is discretionary and
not mandatory. The defendant denied claim that the claimant’s entitlement was
withheld by the defendant.
96.
Now, the question that need to be resolve is, whether
the claimant by the evidence adduced before the court has been able to prove
entitlement to any of the reliefs.
97.
The counsel for the defendant has submitted that
the claimant’s letter of appointment is clear regarding his remuneration,
emoluments and other financial obligations. Counsel also submitted that the Revenue Administration Law,
exhibit CWG on the other hand is clear, as it limits the terms and conditions
of the Chairman’s appointment to the specifications of the letter of
appointment, as stated in section 4 (2) and 4 (2) (b) thereof, reproduced
hereunder for ease of reference:
(2)“the
Chairman and other members of the Board, other than ex-officio members, shall
each hold office-
(b)On such
terms and conditions as may be specified in the letter of appointment pursuant
to the provisions of this law”.
98.
Counsel
argued that it is clear from the letter of appointment and provisions of
section 4(2)(b) of the revenue Administration Law, that they jointly form the
terms and conditions of the claimant’s appointment, leaves no room for any
misinterpretation or misconception whatsoever by making clear exactly what the
claimant’s entitlement was, tying same to the stipulation in his letter of
appointment and emphasizing that any further financial entitlement was purely
discretionary, by the deliberate and intentional use of the word ‘MAY. The
Defendant is therefore not indebted to the claimant having bound himself to the
terms and conditions of the Claimant’s appointment by paying his salaries and
all other benefits enjoyed by the claimant during the pendency of the
claimant’s robust appointment as Chairman, Cross River State Board of Internal
Revenue Service.
99.
According
to counsel for the defendant, the claimant believes that he is entitled to
severance pay and furniture allowance and hinges this claim on Law No. 12,
exhibit CWN and section 5 of the Revenue Administration Law, exhibit CWG which
entitles the Chairman and members of the Board to be paid allowances and
benefits as is applicable in the public service of the State. However, counsel
submitted that the claimant is not entitled to the benefit of the Law No. 12, exhibit
CWN as the specific beneficiaries of that law were mentioned, and the office of
chairman was given a very restrictive and specific definition which eloquently
excluded the claimant’s office as Chairman of the Board of the Cross River
State Internal Revenue Service. It is submitted that, the law contemplated
three categories of beneficiaries selected from the Executive, Legislative and
Judicial arms of the State and Local Governments, as per Schedule 1 to the said
law. It is argued that in the said schedule 1, under the Executive category,
specifically item 3, the word Chairmen was asterisked. In the area marked NOTE,
also asterisked, chairman which is specifically defined as:
“Chairman of
State Civil Service Commission, State Judicial Service Commission, State
Independent Electoral Commission, Local Government Service Commission and such
other Commissions as may be established by the Act of the State Assembly; Chief
of Staff to the Governor”.
100.
Counsel
emphasizes that the phrase “and such other commissions” used in the law is
generic. Other than the Local Government Service Commission which is the Local
Government’s version of the State Civil Service Commission first mentioned, the
rest of the named commissions have constitutional flavour having all been
established under Section 197 (a) (b) and (c) of the 1999 Constitution of the
Federal Republic of Nigeria (as Altered). This simply clarifies the nature of
commissions contemplated by the phrase “and such other commissions” and
effectively excludes the Board of internal Revenue Service or any other Board
at all. It is submitted that the Ejusdem generis rule of interpretation may be
called in aid and the rule is to the effect that when specific words are used
in a statute and general words follow, the general words are not to be read at
large but in line with the specific words.
101.
For
the claimant the law setting
up the establishment where Claimant worked, exhibit CWG, the Cross River State
Revenue Administration Law states very clearly in Part 1 section 5 (with the
side note) emoluments etc of members stated that:
‘The Chairman and board members shall be paid such
emoluments, allowances and benefits as is applicable in the Public Service of
the State’
102.
According to counsel
as at the time of Claimant’s appointment and till this moment there is only one
law in operation that governs emoluments, allowances and benefits of Public
Office holders in the State and that is the Law No. 12, exhibit CWN.
103.
Counsel also argued
that for the defendant’s argument to be sustained that the Claimant is not
listed as a beneficiary of an existing law, there should be a law or a document
to that effect. This has to be proved by the defendant. As the defendant owed
this court an obligation to aver to the contrary that notwithstanding the
provisions contained in exhibit CWG and exhibit CWN, a further document that is
not before this Court exist to exempts the Claimant from being a beneficiary of
the Law No. 12. And since such document is not before this Court, counsel
invite the court to rely on the literal rule of interpretation in which the
courts are enjoined to ascertain the meaning of the words used by reading them
in their ordinary grammatical sense and to give effect to them unless such
construction would lead to some absurdity or would be repugnant to the
intention to be collected from parts of the statute.
104.
According to counsel
the reference made in Schedule 1 A, to ‘Chairman of state civil service
commission, state Judicial Service Commission, State independent Electoral
Commission and such other Commissions as may be established by the Act of the
State Assembly; Chief of Staff to the Governor’, is also reference to the
claimant. To support hjis contention, counsel refers the court to the
definition of the word ‘COMMISSION’ as defined by Black’s law dictionary as
follows:-
‘It is a body of persons acting under lawful
authority to perform a public service’.
105.
Counsel also
submitted the question that arises from this definition is whether the board or
the Internal revenue service is a body of persons acting under lawful authority
and performing a public service? Counsel answered in the affirmative because
the powers and functions of the board are contained in Section 6 & 7 of
exhibit CWG, it is therefore a Commission notwithstanding the absence of the
word Commission in its name because it is established by the Act of the State
Assembly as captured in schedule A, exhibit CWN. For counsel this also account
for why the law establishing the Internal Revenue Service says that the
Chairman and its members shall be paid such emoluments, allowances and benefits
as is applicable in the Public Service of the State Part 1 section 5, exhibit
CWG.
106.
Counsel submitted
that it is an accepted principle of interpretation of statutes that a Court can
supply an omission in a law to ensure reasonableness.
107.
Counsel further
argued that the Chairman and board members of the Internal Revenue Service are
captured by the Law No. 12, in view of the definition of the ‘Public Service of
a State’ as contained in 1999 constitution of the federal republic of Nigeria
as amended. Section 318 (1) which is the interpretation provisions states
‘Public service of a state means the service of the
state in any capacity in respect of the government of the state and includes
service as-
(a)
(b)
(c) member
or staff of any commission or authority established for the state by this
constitution or by a law of a House of Assembly;
108.
Counsel urged the
court to hold that the internal revenue service having been established by a
law of the house of assembly is a Public Service within Cross River State.
Because according to counsel it is an Authority or Commission provided for
within the Law No. 12, as there is no law excluding it thereto. And the
Claimant as an outgone Chairman of the establishment is entitled to the severance
package contained therein. Counsel submitted that exhibit CWE letter of
appointment cannot excludes claimant from benefitting from Law No. 12.
109.
According to counsel,
severance grant, is only due to every applicant at the expiration of his
service to the defendant. It is not a discretionary grant that His Excellency,
the Governor can deny or withhold from an applicant except the applicant is not
an Appointee of the defendant within the remuneration package law.
110.
It is submitted that
the purport of these provisions is that the letter of appointment must be
pursuant and subject to the law establishing the Revenue service and not
otherwise. In other words, the law establishing the board regulates their
letters of appointment and the content of their letter must conform to exhibit
CWG. Counsel submitted that is our jurisprudence as the law is the foundation
of every action and inactions. Anything to the contrary is ultra-vires the law.
111.
It is further
submitted the Claimant’s appointment, screening etc were based on the law
establishing the Internal revenue service and the letter of appointment was and
must be issued pursuant to the said law. Any content in his letter of
appointment that is not in tandem with the law setting up the place obviously
will be a nullity irrespective of who signs the letter of appointment. Jegede
& Anor v INEC & Ors (2021) LPELR- 55481 SC Akande v Jegede (2022)
LPELR-58911 SC.
112.
It is submitted that
the Claimant is entitled to the emoluments and benefits as contained in the Law
No 12. Counsel urged the court to rely on the provisions contained in exhibit
CWG and hold that the only remunerations existing for public office holders is
the one before this honourable Court. As the defendant have not presented any
law exempting the Claimant from being a beneficiary of the law.
113.
It is submitted that
the claimant has proved his case on the documentary facts before the court. The
defendant’s defence to the claimant’s claim is narrowed to the fact that
exhibit CWN did not expressly mention the claimant as a beneficiary and that 4th
paragraph of exhibit CWE is restrictive.
114.
From the pleadings
and evidence of the parties, it is clear to me that the controversy to be
resolved in this case revolves around proper interpretation of the provisions
of Law no. 12, Revenue Administration Law and the claimant’s letter of
appointment, exhibit CWE.
115.
For the claimant to
succeed in an action claiming payment of severance benefits and furniture
allowance under the Political, Public and Judicial Office Holders Law will
depends on several legal considerations. To start with, the nature or status of
claimant’s appointment must be determined. As the letter of appointment clearly
stated that the appointment is at the pleasure of the Governor.
116.
On the
nature of the claimant’s appointment, the letter of appointment exhibit CWE has
clearly stated that the claimant’s appointment is "at the pleasure of the
governor" this implies that the appointment was a discretionary one. And
such appointment does not normally guarantee tenure or benefits beyond the
period of service unless explicitly provided for by law or contract. See the
case of GOVERNOR, EKITI STATE & ANOR v. ONI & ORS (2013)
LPELR-20472(CA).
117.
For an appointment to be made at the pleasure of
the Governor, there must be a law donating such power to the Governor. In
Nigeria the only power to make appointment at the pleasure of the governor is
only in respect of appointment of Secretary to State government, Head of Civil
Ser, Permanent Secretaries and Ambassadors.
118.
However, by section 3(a) of the Cross River
State Revenue Administration Law, as amended, the Chairman of the Cross River State
Internal Revenue Service Board, is to be appointed by the Governor subject to
confirmation of the state House of Assembly. The claimant in this case was vide
exhibit CWE appointed as chairman of internal Revenue service Board with effect
from 18/6/2019, valid till 28/6/2023. This means the appointment was for a
period of 4 years as stipulated in section 4(2) (a) of the Cross-River State
Revenue Administration Law.
119.
By the provisions of section 4(2)(b) the
appointment shall be on such terms and conditions as may be specified in the
letter of appointment pursuant to the provisions of this law. By section 5 of
the Revenue Administration Law, the chairman and members of the Board shall be
paid such emoluments allowances and benefits as is applicable in public service
of the state.
120.
The claimant has argued that having been
appointed by the governor and the appointment having been confirmed by the State
House of Assembly as per exhibit CWH and the appointment having been made
pursuant to the provisions of Cross River State Revenue Administration Law, the
claimant is in the public service of the state. According to claimant by
section 5 his emolument, allowances and benefits is to be as applicable in
Public Service of the state and since there is no any other law prescribing
emoluments allowances for public officers apart from the Law No. 12, he is
entitled to benefit from the law.
121.
I have no doubt in my mind that an appraisal of
the provisions of sections 3(a), 4(2)(b) vis-vis vis exhibit CWH, will clearly
show that, notwithstanding the content of exhibit CWE (letter of appointment) that
stated claimant’s appointment to be at pleasure of the governor, the claimant’s
appointment as chairman of Cross River State
Internal Revenue Service Law was not a discretionary appointment made at the
pleasure of the Governor, even though it was stated to be so in exhibit CWE.
The appointment was a statutory appointment made pursuant to the provisions of
the Revenue Administration Law. Therefore, the claimant though not having been
employed in the civil service commission is never the less an appointee in the
public service of the state. In NNDC v. UGBAGBE (2021) LPELR-56666(SC) Pp.
13-15, Paras. C-C, the apex court refersa to definition of public service of a
state in section 318 of the constitution as amended as follows:-
"Public
service of a State" means the service of the State in any capacity in
respect of the Government of the State and includes service as: (a) Clerk or
other staff of the House of Assembly; (b) member of staff of the High Court,
the Sharia Court of Appeal, the Customary Court of Appeal or other Courts
established for a State by this Constitution or by a Law of a House of
Assembly; (c) member or staff of any commission or authority established for
the State by this Constitution or by a Law of a House of Assembly; (d) staff of
any local government council; (e) staff of any statutory corporation
established by a Law or a House Assembly; (f) staff of any educational
institution established or financed principally by a Government of a State; and
(g) staff of any company or enterprise in which the Government of a State or its
agency holds controlling shares or interest’’.
122.
It is clear from the above definition
of public service of a state that "The term "public service
of a state" refers to the body of government employees who are employed in
various capacities to serve the public and implement government policies and
programs. The public service of a state includes all individuals employed in
the civil service, which encompasses ministries, departments, and agencies of
government. See also SHARIKA & SONS LTD v. GOVERNOR OF KADUNA STATE &
ORS (2013) LPELR-20379(CA).
123.
Now the question that call for resolution is
whether the claimant having been in the public service is entitled to take
benefit of the provisions of the Law no. 12.
124.
For the defendant the claimant is not entitled
to take benefits under Law no. 12. While the claimant is insisting that he is
entitled to benefit since there is no other law that prescribed benefit
officers in the public service. The claimant further argued that
notwithstanding lack of his office being mentioned in the law the court has
power to fill the gap taking into consideration definition of commission’ as
contained in Black’s law dictionary.
125.
It appears to me that the argument of counsel to
the claimant that there is no other law apart from Law No. 12, that prescribed
or made provisions for emolument and other entitlement of Public Officer was
made in disregard of the definition of Public Service provided for in section
318 of the Constitution as amended, which the claimant also relied on.
126.
It is facts of common knowledge that officers in
the civil service, Ministries, parastatals, governments agencies and companies
in the government hold substantial shares are in law in the public service and
as well public officer like the defendants. These officers in the organizations
mentioned above are despite being in the public service not been paid as per
the Law No. 12, as the organization have their own salaries and allowances
different from the Law Npo. 12. Therefore, it is a great misconception of law
to argue that the only law that make provisions for public office is law No.
12.
127.
I shall now turn to consider the
provisions of the Law No. 12, to see whether the claimant is covered by the law
to entitled him to take benefit of the provisions of the Law.
128.
The court in exercising power of
interpreting provisions of statutes is guided by principles laid down by
precedents. The general rule for construing provisions of a statute is that
where the words of a statute are clear the court shall give effect to their
literal meaning. It is only when the literal meaning may result in ambiguity or
injustice that the court may seek internal aid within the body of the statute
itself or external aid from a statue which is in pari materia in order to
resolve the ambiguity or avoid doing injustice. Mobil Oil (Nigeria) Ltd. v.
Federal Board of Inland Revenue (1977) 3 S.C. 74; Olawoyin v. Attorney-General
of Northern Nigeria (1961) 2 SCNLR 5; Obadara v. The President, Ibadan West
District Grade B Customary Court (1964) 1 All NLR 336; Nigerite ltd v Dalami
nig. Ltd (1992) 7 NWLR (Pt. 253) 288.
129.
It is a cardinal rule of construction
of written instruments, that the words of a written instrument must in general
be taken in their ordinary sense notwithstanding the fact that any such construction
may not appear to carry out the purpose which it might otherwise be supposed
was intended by the maker or makers of the instrument. The rule is that in
construing all written instruments the grammatical and ordinary sense of the
words should be adhered to, unless that would lead to some absurdity or some
repugnancy or inconsistency with the rest of the instrument; the instrument has
to be construed according to its literal import unless again there is something
else in the context which shows that such a course would tend to derogate from
the exact meaning of the words. An express provision in an instrument excludes
any stipulation which would otherwise be implied with regard to the same
subject matter - expressum facit cessare taciturn. In the circumstances, there
is no room for the view, in the face of the express language Again, in Ifezue
v. Mbadugha (1984) 1 SCNLR 427; (1984) 5 SC 79, 101 Bello JSC, (as he then was)
said:- "... Where the words of any Section are clear and unambiguous, they
must be given their ordinary meaning unless this would lead to absurdity or be
in conflict with other provisions of the Constitution and effect must be given
to those provisions without any recourse to any other consideration ... "
Once the provisions under construction are formulated in clear, simple and
unambiguous terms that any interpretation other than that provided by the plain
literal meaning of the words used is unwarranted. In Oviawe v. Integrated
Rubber Products Nigeria Ltd & another (1997) 3 NWLR 126 at 139, Mohammed
JSC in the lead judgment of the apex court, said:- "The rule of
construction of Acts of Parliament is that they should be construed according
to the intent of the parliament which passed the Act. If the words of the
statute are in themselves precise and unambiguous then no more can be necessary
than to expound those words in the natural and ordinary sense. The words
themselves alone, do in such a case, best declare the intention of the
lawgiver. If the words are plain and unambiguous recourse to interpretative
aids by use of preamble, title, context and purpose will not be necessary.
130.
The guiding rules of interpretation of statute or instrument are
well settled by a plethora of authorities. One of the vital canons of the
interpretation of statutes or written instruments is to give the plain words of
the statute their ordinary natural and literal grammatical meaning, in order to
establish the intention of the law maker or framers of the statute or
instrument. It is only where the ordinary or literal meaning of the clear and
unambiguous words fails to bring out the intention of the lawmaker or leads to
an absurdity that resort is had to constructive interpretation. See Dickson v
Sylva (2017) 8 NWLR Part 1567 Page 167 at 233 Para D, Per Kekere-Ekun JSC, (as
he then was, now CJN); Registered Trustees of the Airline Operators of Nigeria
v Nigerian Airspace Management Agency (2014) 8 NWLR Part 1408 Page 1 at 41 Para
B-C; (2015) All FWLR Part 762 Page 1786 at 1812, Amaechi V I.N.E.C (2008)
5 NWLR (Pt.1080) 227 S.C. Therefore, provisions of statute must always be
interpreted to achieve the obvious ends for which the statute was enacted into
law. See Assams v Ararume (2016) 1 NWLR Part 1493 Page 368 at 387 Para A-C;
(2016) All FWLR Part 821 Page 1481 at 1492 Para F-G, per Rhodes-Vivour JSC.
131.
Also where an interpretation will result in breaching the object
of the statute, the Court will not lend its weight to such an interpretation,
see Dickson v Sylva (2017) 8 NWLR (Part.1567) Page 167 at 233 Para E per Kekere-Ekun
JSC, (as he then was now CJN). However, where there is a gap, duplicity or
ambiguity, or where the words of an enactment are capable of two meanings, a
contextual, rather than a literal approach should be preferred, as it is the
duty of the Court to give a meaning that will resonate with sense, order and a
workable system. In so doing, the provisions of a statute must not be read in
isolation, but the whole, to ascertain the true meaning of the statutes. See
Buhari v Obasanjo (2005) All FWLR Part 273 Page 1 at 189 Para C-D per
Pats-Acholonu JSC; Braithwaite v GDM (1998) 7 NWLR Part 557 Page 307 at 325
Para C-D per Ayoola JCA (as he then was); Akpamgbo-Okadigbo v Chidi No. 1
(2015) 10 NWLR Part 1466 Page 171 at 199 Para A-B per M.D. Muhammad JSC. It is equally
vital to read all the integrated and interrelated statutory provisions under
consideration together, not in isolation or by installment. See A-G, Benue
State v. Umar (2008) 1 NWLR (pt. 1068) 311. Dimegwu
v. Ogunewe (2008) 17 NWLR (pt. 1116) 358. Chime v.
Ude (1996) 7 NWLR (pt. 461) 379. The Registered Trustees ETC v.
Medical Health Workers Union of Nigeria & Ors. (2008) 1 SCNJ 348
and Inajoku v. Adeleke (2007) 1. SCNJ 1.
132.
It is in line with the above well laid down principles of
interpretation of statute that I shall consider the provisions of the Cross
River State Political, Public and Judicial Office Holders Remuneration Package
Law of 2007 and the Cross River State Revenue Administration Law with its
amendment, it is by so doing that this court will be able to reach a just
decision on the dispute submitted to it for resolution.
133.
A critical holistic examination of the Cross River State
Political, Public and Judicial Office Holders Remuneration Package Law of 2007,
will show that the law was enacted by the Cross River State House of Assembly
to specifically make provisions for payment of salaries allowances and fringe
benefits with effect from 1st February 2007, as prescribed in the
schedules to the law, for the benefit of persons stated therein. See sections 1
and 2 of the law. It is clear by schedule 1 A, this law did make provision for
payment of annual basic salary to five categories of persons namely:
1. Governor,
2. Deputy Governor,
3. Commissioner, Secretary
to the State Government, Head of Service, Chairmen and chief of staff to the
Governor
4. Member, special
adviser
5. Permanent
secretaries, clerk of the house, chief Registrar, Auditor-General (State and
Local), Accountant-General.
134.
It is pertinent to note that
‘chairmen’ was defined to mean: Chairman of State Civil Service
Commission, State Judicial Service Commission, State Independent Electoral
Commission, Local Government Service Commission and such other Commissions as
may be established by the act of the State Assembly; Chief of Staff to the Governor.
135.
The defendants maintained that under chairmen it is only the
chairmen specifically mentioned in this defition that are entitled to take
benefit under the Law No. 12. While the claimant is of the view that the
definition of chairman as contained in the schedule to the Law should not be
restrictive if it is confined to the two categories it will deprive the
claimant of his right to be paid emoluments and other benefits that is as
applicable in the public service of the state as provided by section 5 of the
Revenue Administration Law.
136.
On this I am at ad idem with the submission of Learned Counsel for
the defendant that the definition of Chairmen should be restricted to the five
categories of persons mentioned therein and there is nowhere Chairman of Internal
Revenue Service of the State should be accommodated. The reason being that in
law where a statute has defined a word or term, the court is bound by that
definition, as the court is not allowed to resort to any aid either internal or
external to accommodate what was not in the definition. As in
statutory interpretation, when a word or term has been defined within a
statute, the definition provided by the statute is generally binding and should
be used in interpreting the statute. This principle is rooted in the need for
consistency and clarity in legal interpretation, ensuring that the legislative
intent is respected and applied uniformly. The principle guiding this
approach to interpretation is well-established in case law. For instance, in
the case of APC v. AGUMA & ORS (2020) LPELR-52574(CA), the court emphasized
the importance of adhering to the statutory definition provided within the
legislation. Similarly, in AGUMA v. APC & ORS (2021) LPELR-55927(SC), the
Supreme Court reiterated that where a statute provides a definition for a term,
that definition must be applied, and resort should not be made to external
definitions unless the statute itself is ambiguous or silent on the matter.
137.
However, there are exceptions to this rule. If
the statutory definition leads to an absurdity or is ambiguous, courts may look
beyond the statute to interpret the term. This is supported by the decision in
DAPIANLONG & ORS v. DARIYE & ANOR (2007) LPELR-928(SC), where the court
held that external aids could be used to interpret a statute if the internal
aids (such as definitions within the statute) are insufficient.
138.
In ALL PROGRESSIVE CONGRESS v. RT. HONOURABLE
IGO AGUMA & ORS (2020) LPELR-52574(CA), Per PETER
OLABISI IGE , JCA (Pp. 35-37, paras. D-A), stated as follows:-
"The inviolate position of the rules of interpretation
of a statute or the Constitution is that where words or word used in a statute
or Constitution have or has been defined or assigned with meaning the said
statute or Constitution, the words as legally or Judicially defined will
prevail, without any embellishments from the Court called upon to interpret or
enforce the provisions of the law or the statute. See; 1. ACME BUILDERS V
KADUNA STATE WATER BOARD & ANOR (1999) LPELR 65 SC ; 2. HON. JUSTICE KALU
ANYAH & ORS VS DR. FESTUS IYAYI (1999) LPELR - 510 SC per KARIBI-WHYTE, JSC
who said:- "It is well settled that where a word or phrase has been
defined in an enactment that meaning must be restricted to the words so defined
in the statute, the definition governs. See APAMPA V STATE (1982) 6 SC
74." 3. PROF. JERRY GANA CON VS SDP & ORS (2019) 3 SCM 74 AT 92 E- G
per EKO, JSC who said:- "The cardinal principle of interpretation is that
when the words of the statute or instrument are clear and unambiguous, they must
be given their ordinary natural simple meaning. A Court of law, in its
interpretative jurisdiction, lacks jurisdiction to import or impute into a
statutory provision words which are not therein used. Its duty being only to
interpret the provisions in order to bring out the meaning of the words used in
the statute and the intent of the law maker: Unipetrol v. E.S.B.I.R ALL FWLR
(pt. 317) 413 at 423; Obusez v. Obusez (2007) 30 NSCQR 329, (2007) 9 SCM,
91." Thus, it has long been settled that a Court of law must not allow
itself to be into deviating from clear and unambiguous words that make up the
statute. The Court must give the words their natural meaning in order to avoid
the suppression of the real meaning and intention of the lawmaker."
See
also RT.
HONOURABLE IGO AGUMA v. ALL PROGRESSIVES CONGRESS & ORS (2021)
LPELR-55927(SC).
139.
In the case at hand the statute
under consideration i.e. Law No 12, is not ambiguous or silent on the matter to
warrant to resort to black’s law definition of the word ‘Commission’ so as to
accommodate the claimant in this case.
140.
Another reason why the claimant in this case is
not covered under the Law No. 12, is that the chairmen mentioned are those that
the Constitution has vested power to states assemblies to specifically make law
for their emoluments and other fringe benefits. Therefore, the Claimant
submission that there is no other law that made provision for public service is
not the correct position.
141.
I note, the claimant in relying on definition of
commission in Black’s Law Dictionary, seems to overlook the facts that
though both statutory 'boards' and 'commissions' are government
bodies established to perform specific function, the key difference often lies
in their scope of authority. Composition and primary responsibilities, as
enunciated in the laws establishing them.
142.
A statutory Board is typically a group of
individuals elected or appointed to oversee the activities of an organization,
such as a corporation, government agency, or non-profit entity. Boards are
responsible for setting broad policies, strategic direction, and ensuring
accountability. They often include a mix of executive and non-executive
members, with the latter providing independent oversight.
143.
On the other hand, a Commission is generally a
body established by legislation to perform specific functions, often regulatory
or advisory in nature. Commission is usually created to oversee particular
sectors or issues, such as employment, telecommunications, human rights, or
public utilities. They are often endowed with quasi-judicial powers, allowing
them to enforce regulations, conduct investigations, and make binding
decisions. For instance, the Civil service commission is a regulatory body
established pursuant to Constitution to regulate employment in the public
service.
144.
The distinction between boards and commissions
can also be seen in their composition and operational mandates. Boards are
often more focused on governance and oversight within an organization, while
commissions are tasked with regulatory and enforcement roles across sectors.
145.
In view of the foregoing exposition of the law, the
claimant’s claim of 300% of annual basic salary as severance grant and 300% of
annual basic salary for furniture allowance, is misconceived as he is not
covered under the law, he is making his claim. I also agree with counsel for
the defendant that his salary as per his letter of appointment is consolidated
and not basic salary and there is no equivalent amount in the schedule to the
law that is basic salary of chairman.
146.
It is also to be noted that the claim of the
claimant to the sum of N21,6000,000 is a claim for special damages that
requires strict proof with cogent and compelling evidence. The pay slips exhibits
CWA, CWB and CWC, tendered in evidence are not helpful to proof of claimant’s
claim in that the pay slips only showed gross and net pay of the claimant. The
claimant having failed to prove his basic annual salary cannot succeed. As
consolidated salary encompasses, basic salary and other entitlements all
together. To support this finding, I refer to the decision of the Court of
Appeal in the case of Intel’s (Nig) Ltd
& Ors v Bassey (2011)
LPELR-4326(CA), Per OREDOLA, JCA (Pp. 13-14,
paras. D-A), where it was stated, thus:-
"What
are salary, gross salary and gratuity? Salary is an agreed or fixed recompense
or emolument for work done or services rendered and usually paid to an employee
by an employer at regular intervals, for instance monthly. As for gratuity, it
is in the nature of fringe benefit given to an employee for a deserving
meritorious service. On the other hand, basic salary and all entitled
allowances payable to an employee constitute gross salary, while net salary is
gross salary less all deductions, Put differently; gross salary is the total
amount of income from all sources before any deductions are made. Thus, gross
salary can be contra distinguished from basic salary. Hence, while the former
includes the latter, the latter excludes the former. It is thus obvious that
"annual gross salary" will be higher than "annual basic
salary." The latter is subsumed under the former which encompasses the
latter."
147.
It is clear from the above quoted
dictum, that the claimant in this case has woefully failed to establish his
basic salary, as what he is relying on is consolidated salary. Furthermore, in
schedule 1, A, of Law No. 12, no mention was made of the office of the claimant
as one of the offices to enjoy the benefit of Law No. 12. This means claimant
has failed to prove his basic salary for him to be entitled to claim under Law
No. 12.
148.
The failure of relief (a) means reliefs (b) and
(c) must also fail as they are ancillary claim dependent on grant of relief (a)
which is the main claim in this case. it is settled that where
a party’s principal claim fails, the accessory claims that are appendages to it
will fail too. The principle traces its paternity to the latin maxim:
Accessorium seguitur principale - accessory thing goes with the principal to
which it is incidental to. In the instant case, the fundamental prayer by the
appellants was for the sum of N21,600,000.00 as severance grant and furniture
allowance. The failure of this main relief, no subsequent or ancillary prayers
sought are grantable by the court. See Fagunwa v. Adibi (2004) 17 NWLR (Pt.
903) 544; Akinduro v. Alaya (2007) 15 NWLR (Pt. 1057) 312; Ogoke v. Nduka
(2020) 4 NWLR (Pt. 1715) 509
149.
I note that the claimant has attempted to even
argue that the letter of employment is ultra vires, a nullity for non-compliance
with Revenue Administration Law, unfortunately for the claimant has not claim
any relief in that respect, the failure to claim any relief challenging the
validity of the said letter of appointment is fatal to the averments in the
statement of facts in thast respect as facts to which no relief is claimed goes
to no issue. As the main claim is severance grant and furniture allowance the
court is duty bound to confine its consideration to the claim before it and
cannot go into issues not properly raised due to absence of relief.
150.
The claimant seems to also be derailing from his
case by insinuating that exhibit CWE his letter of appointment containing the
amount of money he asserted was his basic salary, was a nullity due to
infraction of Cross River State Revenue
Administration Law. The law is settled that a party must be
consistent in his case as the law would not allow him to approbate and
reprobate over the same issue. See Suberu V State (2010) LPELR-3120(SC),
International Bank Ltd V Brifina Ltd (2012) LPELR-9717(SC) and Ude V Nwara
(1993) 2 NWLR (Pt.278) 638 at 662-663. A party must at all times be consistent
in the case he presents in Court. He cannot approbate and reprobate.
151.
As pointed out earlier in this judgment, it
is not an acceptable judicial act for the judex to depart from the case
presented before it and proceed to address matters which did not arise for
consideration. To do so is indeed not judicial at all. See LARMIE v. DATA
PROCEEDING MAINTENANCE ?(2005) 18 NWLR (part 958) 438; (2005) LPELR-1756(SC) at
Pp 24-25, paras G-B, see also ADEYEMI v. STATE (2014) 13 NWLR (Part 1423) 132;
(2014) LPELR- 23062 CSC) at Pp 26-27, Paras E-A, ODOM v. PDP (2015) 6 NWLR (Pt.
1455) 527; (2015) LPELR - 2435 (SC) Pp 48 Paras c-G; OHOCHUKWU v. AG. RIVERS
STATE (2012) 2 SC (pt. 11) 103; STOWE v. BENSTOWE (2012) 1 SC (Pt. 11) 86.
152.
It is surprising for the claimant to argue on altra
vires and nullity of exhibit CWE, because if that document is a nullity, then
the bottom of the foundation of his claim has been knocked off, destroyed and
turn to nothing.
153.
From all I have been saying above, the claimant
in this case has woefully failed in his duty of proof. Having failed to prove
his case, this court has no choice than to dismiss the case and it is hereby
dismissed for lack of proof.
154.
I make no order as to costs. Parties to bear
their respective costs.
155.
Judgment is hereby entered accordingly.
Sanusi Kado,
Judge.
REPRESENTATION:
Samson Onah, Esq; for
the claimant,
Udenyi Omaji, Esq; State
Counsel 1, for the defendant appearing with James Odong, Esq; SC ii, and
Miracle Abong, Esq; SC ii.