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REPRESENTATION F.N. NACHAMADA with C. G EKONG, B. C. OGBONNA (MISS) for the claimant OKOI ETEM EKANG Senior State Counsel I with 3rd & 4th defendant JUDGEMENT This action was commenced by the claimant against the defendants by way of Writ of Summons filed on 21st February, 2011 at the High Court of Cross River State. At the High Court, the parties exchanged pleadings. The matter was however transferred to this Court on 27th June, 2013 by an order of the High Court of 4th June, 2013 made pursuant to Sec. 24 of the National Industrial Court Act, 2006. Claimant subsequently filed a Complaint on 7th March, 2014, accompanied by the Statement of Facts, Claimant’s Written Statement on oath, List of Witnesses and List of Documents. WHEREOF claimant claims as follows: 1. The sum of #846, 391.00 (Eight Hundred and Forty Six Thousand, Three Hundred and Ninety One Naira) only being the claimant’s unpaid salaries from June, 2010, to December, 2010, at the rate of #120, 862.51 per month. 2. #2, 000, 000.00 (Two Million Naira) only, as General Damages. The claimant case on the record is that he was appointed by the 1st and 2nd defendants as Supervisor for Health and Social Welfare for a fixed period which appointment was to expire in December, 2010 at the end of the 1st defendant’s tenure as Chairman of the 2nd defendant. The defendants paid the claimant’s salary up to May, 2010 but stopped from June, 2010. The claimant’s salaries from the months of June, to December, 2010 were lodged with or remitted to the 2nd defendant by the 3rd defendant for payment to the claimant; however, the 1st defendant withheld these salaries appropriating same to himself. Aggrieved by the non-payment of his salaries, the claimant appealed to the 3rd defendant for intervention, of which the 3rd defendant wrote to the 1st defendant on 19/10/2010. The 3rd defendant informed the 1st defendant that the 3rd defendant has lodged the claimant’s salaries with the 2nd defendant and that the 1st defendant should release claimant’s salaries to him since the claimant’s appointment has not been terminated. The 1st defendant ostensibly in a desperate bid to justify the withholding of the claimant’s salaries fabricated a letter of termination of the claimant’s appointment and backdated same to 08/06/2010. Meanwhile, this letter purportedly terminating the claimant’s appointment has not been served on the claimant and there is nowhere the claimant signed or acknowledged receipt of the letter. 3rd and 4th Defendants entered appearance on 13th February, 2015 vide Memorandum of Appearance dated 12th February, 2015. On the20th May 2015 the Court invited the parties to this case to address the court on the competence of the claimant suit in the light of the provisions of Section 7 1999 CFRN (As an amended) The 3RD & 4TH DEFENDANTS’WRITTEN ADDRESS AS ORDERED BY THE COURT ON THE COMPETENCE OF THE CLAIMANT’S ACTION VIS-À-VIS THE PROVISIONS OF SECTION 7 OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (AS AMENDED) was dated and filed on 16th July, 2015. Learned Counsel for the 3rd and 4th submitted that when the claimant’s action is viewed from the prism of sec. 7 of the Constitution, this Honorable Court should have no difficulty finding and holding that the action as constituted is incompetent and or lacking in a reasonable cause of action or justiceability. He submitted that just as the Constitution makes provision for the establishment of the offices of the President and Vice-President and the composition of the National Assembly for the Federation as well as the establishment of the offices of the Governor and Deputy Governor and the Composition of a House of Assembly for each State of the Federation, the Cross River State Local Government Law 2010 makes provision for the establishment of the offices of Chairman and Vice-Chairman and the Legislative Council for each Local Government of the State. SECTIONS 130, 141, 142, 176, 186, & 187 of the CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (as amended); SECTIONS 10 (1) & (2), 14, & 28 of the CROSS RIVER STATE LOCAL GOVERNMENT LAW, 2010. Counsel contended that what Sec. 7 of the Constitution prohibits is the dissolution of a democratically elected Local Government and the appointment of an Administrator or Caretaker Committee in its stead. He argued that one problem which the claimant appears to have is his inability to appreciate or accept the fact that a person who has the power to appoint also has the power to remove or suspend. And that the following are three recognized categories of contracts of employment; a. Purely master and servant relationship; b. Servants who hold their office at the pleasure of their employer; and c. Employments with statutory flavour. Sec. 11 (1) of the Interpretation Act, Cap. 192, Laws of the Federation of Nigeria, 1990; LONGE V. FIRST BANK OF NIGERIA PLC (2006) 3 NWLR (PT. 967) 228 @ 273, Paras. B-d, per Salami, JCA; LONGE V. FIRST BANK OF NIGERIA PLC (2010) 6 NWLR (PT. 1189) 1 @ 57, PARAS. E-G, per Adekeye, JSC; NIGERIAN INSTITUTE OF INTERNATIONAL AFFAIRS v. ANYAFALU (2007) 2 NWLR (PT. 1018) 246. Counsel submitted that the claimant’s appointment as supervisor was at the pleasure of his employer, the 1st defendant, because it was a political appointment. ATTAH v. THE ELDERS OF THE RULING HOUSES OF OSIROKO & EFOFU CLANS IN AGILA DISTRICT (1976) 7 S.C. 13. He submitted that although the intendment of Sec. 7 of the Constitution is to grant power and autonomy to a State Government in its relationship with Local Government Council’s in a State, it does not thereby give the State the power or right to partake in or take over the day-to-day running of the affairs of the Local Government Councils or to dictate to them who to appoint or remove as supervisor. The CLAIMANT’S REPLY ADDRESS dated 27th October, 2015 and filed on 28th October, 2015. ISSUE Whether having regard to the provisions of Sec. 7 (1) of the Constitution of the Federal Republic of Nigeria, 1999, the Cross River State House of Assembly has the power to enact Sec. 10 (3) of the Cross River State Local Government Law giving the 1st defendant power to appoint the claimant as Supervisor for Health and Social Welfare thereby validating the claimant’s claim for salary arrears. Learned Counsel submitted that the powers of the State House of Assembly to make laws for the nomination or appointment into Local Government Councils have received judicial interpretations in a plethora of cases with the view of determining the constitutionality of Sec. 10 (3) of the Cross River State Local Government Laws, 2010 and competence of the claimant’s claim. DOGARI v. A.G. TARABA STATE (2011) ALL FWLR (PT. 603) 1786; AKWA IBOM STATE v. UMAH (2002) FWLR (PT. 110) 1793; HON. NICHOLAS ABAKPA & 7 ORS. v. OGBADIGBO L.G.C. (Unreported) Suit NO. NICN/144/MKD/2013 delivered on 22/05/2015; BARR. SUNDAY EDEM v. UDUNG UKO LOCAL GOVERNMENT Suit No. NICN/CA/17/2013 delivered on 30/09/2015 @ Pp. 11 & 12, per Hon. Justice E.N. Agbakoba; CHIGOZIE EZE & ORS. v. GOVERNOR OF ABIA STATE & ORS. (2014) 1 LPELR – 2327 (S.C.) Court’s Decision Having carefully summarized the submissions of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties, their written submission are herewith incorporated in this judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether the claimant’s case can be competently heard and determined by this court in view of the provisions of S7 of the 1999 CFRN (as amended) Section 7 of the 1999 Constitution provides that;- “The system of Local government by democratically elected local government Councils is under this constitution is guaranteed, and accordingly the government of every state shall, subject to section 8 of this constitution ensure their existence under a law which provides for establishment, structure, composition, finance and functions of such council.” The position of the law is as was stated in Unreported Suit No. NICN/CA/17/2013 BARR. SUNDAY EDEM v. UDUNG UKO LOCAL GOVERNMENT delivered on 30/09/2015 @ Pp. 11 & 12, which relied on the Court of Appeal held in DOGARI V A.G. TARABA STATE (2011) All FWLR (Pt.603) 1786 thus. “Although it is within the legislative power of a State House of Assembly, to make a law to regulate a local government, council in the state plagued with crises or make a law to prescribed for event upon which happening a Local Government Council is dissolved or the Chairman or Vice Chairman of a Local Government Council is removed or vacates his office, any law made by the House of Assembly which provides for nomination of membership of a council appointment or of as administrator or caretaker committee to replace a democratically elected council, is in the consistent with the clear and unambiguous provision of section 7 (1) of the constitution of the Federal Republic of Nigeria, 1999, which guaranteed democratically elected Local Government Council and is therefore unconstitutional to the extent of inconsistency.” Relying on Akpan v. Umah [2002] 23 WRN 52 Ekpe, JCA, [P. 70] Local Government administration is the preserve of the State Governments. Subsection (1) of section 7 empower the state government to ensure the existence of Local Government council under a law which provides for their establishment, structure, composition, finance and functions. The structure of a Local government Council is a matter for the State House of Assembly to legislate upon. At the same time, under section 7(1) of the 1999 constitution, the system of Local government by democratically elected Local Councils is guaranteed. In other words government at this level has to be by democratic election, not by appointment. In effect no arm of government, legislative or executive can create government or establish government at the Local Council level. It is unconstitutional to do so. NICN/144/MKD/2013 HON. NICHOLAS ABAKPA & 7 ORS Vs, OGBADIGBO LGA (UNREPORTED) delivered on the 22nd May 2015. Also it was in the case of AKWA-IBOM STATE V. UMAH (2002) FWLR (PT.110) 1793 that the Court of Appeal pointed out clearly that: a. “Guaranteeing the system of local government council under the constitution means that the local government must be a democratically elected one, and it is in order if the local government is dissolved and a bye-election is ordered. It will be otherwise if the council is dissolved and a caretaker committee is appointed in its place.” What all that means is that the constitution provides that local government area councils are to be manned elected officials, the law passed by the state assembly does not in this case with reference to the Public and Political Office Holders (Remuneration) (Amendment) Law 2007 Akwa Ibom and by cannot give the state government power to appoint a non-elected official to any of the offices of the local government councils, where the constitution has clearly stated that the local government councils in this country are to be run by elected officials. In HON. NICHOLAS ABAKPA & 7 ORS Vs, OGBADIGBO LGA supra this court invited counsel to address it on the propriety of the claimants claim and appointment viz section 7(1) 0f the 1999 constitution. The claimants were claiming against the defendant, the sum of N38,528,000 as outstanding allowances as former deputy Chairmen, Secretary and supervisors of the Makurdi Local Government Council of Benue State. The court after considering the relevant law and case law precedents had this to say “My understanding of section 7 of the 1999 constitution, and the interpretation of its provision by the Court of Appeal authorities cited above, is that any appointment as is the case of the claimants into Local Government Council other than the through democratic election, in keeping with section 7(1) of the constitution is illegal and unconstitutional” Furthermore in CHIGOZIE EZE & ORS V GOVERNOR OF ABIA STATE & ORS(2014) 1 PELR-2327(S.C) CHIGOZIE EZE & ORS V GOVERNOR OF ABIA STATE & ORS(2014) 1 LPELR-2327(S.C) – The Supreme Court interpreted section 7(1) of the 1999 constitution, (the statutory provision governing the existence of democratically elected Local government Councils, stated above) - “On a careful reading, of the above it become clear that it is the duty of the governor to ensure that the system of Local government Councils continues unhindered. Dissolving Local government Councils and replacing them with caretaker committee amount to the governor acting on his whim and fancies, unknown to our laws clearly illegal. It is the duty of the governor to ensure their existence rather than being responsible for destroying them. It amounts to executive recklessness for the 1st respondent to remove from office democratically elected chairman and councilors and replace them with unelected chairman and councilors under whatever guise” BODE RHODES –VIVOUR, JSC, (Delivering the lead judgement). All these goes to restate the position of the court and both counsel is unconstitutional and cannot approach this court to appointees in elected offices of the local government areas of this country. From the foregoing I find and hold that the appointment of the claimant as a Supervisor for Health and social welfare not being in conformity with the constitution is unconstitutional and by virtue of this same unconstitutionality this court is robbed of jurisdiction to hear and determine this matter. This case is hereby dismissed. Judgement is entered accordingly. ……………………………………………. Hon. Justice E. N. Agbakoba Presiding Judge Calabar Division