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<p class="MsoNoSpacing"><b><u><span style="font-family:"Comic Sans MS"">Representation</span></u></b><b><span style="font-family:"Comic Sans MS"">:<o:p></o:p></span></b></p> <p class="MsoNoSpacing"><span style="font-size:10.0pt;font-family:"Comic Sans MS"">K. C. O. Njemanze SAN, with K. I. Uduma for the Claimant<o:p></o:p></span></p> <p class="MsoNoSpacing"><span style="font-size:10.0pt;font-family:"Comic Sans MS"">J. C. Ibe (Mrs.) Assistant Director Civil Litigation, Imo State Ministry of Justice for the 1<sup>st</sup> - 4<sup>th</sup> Defendants<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:2.0in;text-align:justify;text-indent: .5in"><u><span style="font-size:8.0pt;font-family:"Comic Sans MS""> </span></u></p> <p class="MsoNoSpacing" style="margin-left:2.0in;text-align:justify;text-indent: .5in"><b><u><span style="font-size:12.0pt; font-family:"Comic Sans MS"">JUDGMENT</span></u></b><b><span style="font-size:12.0pt;font-family:"Comic Sans MS""><o:p></o:p></span></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">The Claimant commenced this suit by way of a Complaint filed on the 16<sup>th</sup> day of April 2012. By an order of this honourable Court sitting at Enugu on the 19<sup>th</sup> day of February 2013, the 5<sup>th</sup> Defendant was joined as a party to this suit. By an amended Complaint filed on the 11<sup>th</sup> day of March 2013, the Claimant claimed against the Defendants as follows:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l1 level1 lfo1"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-bidi-language:HE">1.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-bidi-language:HE">The sum of <s>N</s>12,014,595.00 (Twelve Million, Fourteen Thousand, Five Hundred and Ninety-Five Naira) being unpaid severance gratuity, accommodation and security allowances due and payable to the Claimant from the Defendants as member of the Imo State House of Assembly between May 2007 and June 2011 which the Defendants have failed, refused and or neglected to pay despite repeated demands. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l1 level1 lfo1"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-bidi-language:HE">2.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-bidi-language:HE">Interest on the aforesaid at the rate of 10% per annum from the date of the judgment until the judgment debt is liquidated.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">The complaint was filed along with an Affidavit in verification of the endorsement therein, the Statement of Facts, Claimant’s List of Witnesses, Sworn Deposition of Claimant’s witness, Claimant’s List of Documents and Copies of Documents to be relied on. The 1<sup>st</sup> – 4<sup>th</sup> Defendants, on the 16<sup>th</sup> day of April 2013 vide a motion for extension of time, filed a Statement of Defence and other accompanying processes. The 5<sup>th</sup> Defendant did not file any defence to this suit. Hearing commenced on the 23<sup>rd</sup> day of April 2015. The Claimant testified for himself as CW1 and Onwuneme Chamberlain Uchenna testified for the 1<sup>st</sup> to 4<sup>th</sup> defendants as DW1. Hearing ended on the 25<sup>th</sup> day of May 2016. Parties were ordered to file their final written addresses in accordance with the Rules of Court. The Claimant’s final address was filed on the 11<sup>th</sup> day of July 2016 while the Defendants’ final address was filed on 30<sup>th</sup> day of September 2016. These were duly regularized. The Claimant’s counsel filed a reply on points of law on the 13<sup>th</sup> day of October 2016. Parties’ counsels adopted their final written addresses on the 27<sup>th</sup> day of October 2016. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">In the Claimant’s final address, one issue was formulated for determination, to wit:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify;text-indent:.5in"><b><i><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">Whether the Claimant is entitled to the reliefs sought in this suit.<o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">Learned counsel for the Claimant argued that the 1<sup>st</sup> to 4<sup>th</sup> Defendants by their pleadings admitted paragraphs 1 to 8 of the Claimant’s statement of facts but the 5<sup>th</sup> Defendant did not file any Statement of Defence. It is counsel’s argument, citing the cases of <b>NEPA vs. Adegbenro (2003) FWLR (Pt. 139) 1556 and INEC vs. A.C. (2009) All FWLR (Pt. 480) 732 at 803</b>; that the 5<sup>th</sup> Defendant’s failure to file pleadings and defend this suit, means that all the averments in the Statement of Facts, and evidence of the Claimant are deemed admitted. Similarly, counsel submitted that the 1<sup>st</sup> - 4<sup>th</sup> Defendants, having admitted paragraphs 1-8 of the Statement of Facts, no further proof is required, referring to the case of<b> Oguanuhu vs. Chiegboka (2013) 6 NWLR (Pt. 1351) 588 at 607-8</b> and Section 123 of the Evidence Act. More so, counsel argued that it is undisputed between the parties in this case, that the Claimant served as a member of the Imo State House of Assembly between May 2007 and June 2011, and the Revenue Mobilization Allocation and Fiscal Commission in February 2007 fixed the remuneration package for political, public and judicial office holders in Nigeria. Again, counsel submitted that the Claimant tendering documents in evidence in proof of his claim, made the Claimant’s oral testimony more credible citing the case of <b>Okunta vs. Odeyh (2015) All FWLR (Pt. 764) 136 at 146</b>.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">Furthermore, counsel contended that the Claimant in adherence to Section 131 of the Evidence Act; has discharged the burden of proving that the Claimant is entitled to the ums of <s>N</s>1,337,225.00 as annual basic salary, <s>N</s>1,002,918.75 as accommodation allowance, being 75% of annual basic salary; <s>N</s>4,011,675.00 as severance gratuity being 300% of annual basic salary, <s>N</s>7,000,000.00 being security allowance; monies that have remained unpaid in spite of the Claimant solicitor’s letter of 28/11/2011 demanding payment. It is counsel’s submission citing Section 133 of the Evidence Act that the evidential burden of proof has shifted to the Defendants who alleged that the Claimant is not entitled to his reliefs. Similarly, counsel argued that the burden of proof in civil cases is not static, the proof or rebuttal of issues may tilt the burden from the Claimant to the Defendant and vice versa, citing <b>A.G. Kwara State vs. Olawale (1993) 1 NWLR (Pt. 272) 645</b>. It is counsel’s further argument that from the Claimant’s evidence and the 1<sup>st</sup> – 4<sup>th</sup> Defendants’ mere denial of same; the rebuttal of the Claimant’s reliefs now rests with the Defendants. Also, counsel submitted that from the evidence of DW1 elicited during cross-examination, the 1<sup>st</sup> - 4<sup>th</sup> Defendants acknowledged that the Claimant has not been paid his allowances and gratuity, and it is the 1<sup>st</sup> Defendant’s responsibility to pay the Imo State House of Assembly. Again, it is counsel’s submission that the DW1 tried to exclude the Claimant from the membership of the Imo State House of Assembly entitled to be paid entitlements, after the Paragraph 2 of the Statement of Defence had admitted that the Claimant was a member of</span><span style="font-size:12.0pt; font-family:"Comic Sans MS""> </span><span style="font-size:12.0pt;font-family: "Comic Sans MS";mso-bidi-language:HE">the Imo State House of Assembly. Thus, counsel asserted that DW1 cannot reprobate and approbate at the same time because a Defendant cannot retract his admission of a specific fact pleaded by the Claimant, having admitted the fact, the Defendants are bound by it and the court is justified in acting on it. Counsel cited the cases of <b>Adeye vs. Adesanya (2001) 6 NWLR (Pt. 708) 1, </b>and<b> Ajuwon vs. Akanni (1993) 9 NWLR (Pt. 316) 182</b>.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">Further, counsel argued that the burden of proof on the Defendants has not been discharged by a mere denial, especially in view of the fact that the Defendants have not adduced any credible evidence in rebuttal of the Claimant’s claim. Counsel urged the court to accept the Claimant’s unchallenged evidence on the strength <i>of </i><b>Iyere vs. Bendel Feeds and Flour Mill Ltd (2009) All FWLR (Pt. 453) 1217<i> </i></b>and<b><i> </i>Oyeniyi vs. Adeleke (2009) All FWLR (Pt. 476) 1902</b>. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">Counsel urged the court to hold that the Claimant is entitled to his claim and grant the reliefs in the Statement of Facts.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">Learned counsel for the 1<sup>st</sup> – 4<sup>th</sup> Defendants identified two issues for determination in her final address, as follows:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l0 level1 lfo2"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-bidi-language:HE">1.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-bidi-language:HE">Whether Exhibit B and D tendered by the Claimant met the requirement of the law for its admission as an exhibit.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l0 level1 lfo2"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-bidi-language:HE">2.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-bidi-language:HE">Whether the Claimant is entitled to the reliefs sought.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">Arguing the first issue, counsel stated that Exhibit B (Revenue Mobilization Allocation and Fiscal Commission’s Remuneration Package for Political, Public and Judicial Office Holders in Nigeria</span><span style="font-size:12.0pt;font-family:"Comic Sans MS"">, </span><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language: HE">February 2007) is inadmissible because a ground that determines the admissibility of a document is that it meets the prerequisite upon fulfilling any condition precedent to the exercise of the court’s jurisdiction, citing <b>Madukolu vs. Nkemdilim (1962) 2 SCNLR 341</b>.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-bidi-language:HE">Further, counsel contended that the Revenue Mobilization Allocation and Fiscal Commission is a Federal Government agency, and documentations of Government policies are usually gazetted with correspondences and documents emanating from arms of government are usually on the letter head of the agency. It is counsel’s contention that Exhibit B that purports to be a public document is not signed by the appropriate officers, not on the letter head of the commission, and no payment of legal fees as required by Section 111(1) of the Evidence Act. Also, counsel submitted that I. K. Nuhu is not competent to certify Exhibit B because the original of Exhibit B is not in his custody, and the certification done on the document does not satisfy the conditions set out in Section 104 of the Evidence Act as no stamp of the commission is affixed or evidence of payment attached. See <b>Tabik Ivestment Ltd vs. GTB Plc (2011) All FWLR (Pt. 602) 1592</b>. Regarding Exhibit D, counsel is of the opinion that the proper foundation was not laid before tendering it because before the photocopy of a document is tendered, the foundation of the whereabouts of the original must be laid. Counsel submitted citing <b>FGN vs. Zebra Energy Ltd (2003) FWLR 154</b>, that if a law requires the fulfillment of a condition for the validity of an act, failure to comply with the condition makes the act a nullity. Again, counsel submitted that having not complied with the relevant Sections 104 and 111 of the Evidence Act; she urged the court to reject the Exhibits B and D for being incompetent.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:4.0pt;font-family:"Comic Sans MS"; mso-bidi-language:HE"> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-bidi-language:HE">With respect to issue two, counsel contended that the Claimant is not entitled to any sum of money alleged because it is not the responsibility of the 1<sup>st</sup> – 4<sup>th</sup> Defendants but the Imo House of Assembly where the Claimant served. Again, counsel submitted that Exhibit B being relied upon by the Claimant does not provide for security allowance claimed by the Claimant. On this note, counsel referred the court to Page 36 of Exhibit B and submitted further that the documentary evidence cannot be said to have supported the oral evidence of the Claimant. More so, counsel argued that Sections 135 – 137 of the Evidence Act fixes the burden of proof on the Claimant in the extant case. Counsel referred the court to the case of <b>Sokoto Furniture Factory Ltd vs. Societe Generale Bank Ltd (2003) FWLR (Pt. 186) 693 at 706</b>, where it was held that the onus of proof is on the Plaintiff being the party who will lose if no further evidence is tendered in court. Similarly, counsel argued that the Claimant is not entitled to the reliefs sought in Exhibit B, which has been amended in the Revenue Mobilization Review Circular 2009. Counsel referred the court to Table B of the 2009 Circular where security is provided in terms of security services and not money. Again, counsel indicated that there was a reduction of the accommodation, severance allowance and severance gratuity by 15-20%, 100% respectively.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-bidi-language:HE">Further, counsel submitted that the Revenue Mobilization Review Circular 2009 is a subsidiary legislation made by the Revenue Mobilization and Fiscal Commission, a body vested with powers to make same; and the court is required to take judicial notice of it, citing <b>NNPC vs. Famfu Oil Ltd (2012) All FWLR (Pt. 635) 204</b>. Counsel submitted, citing <b>Sylvester vs. Ohiakwu (2014) 5 NWLR (Pt. 1041) 467 at 475</b>, that upon the repeal of Exhibit B, it is no longer applicable and ceases to exist. It is counsel’s submission that Sections 70, 84, 111, 124 and Paragraph 31 of the 3<sup>rd</sup> Schedule to the 1999 Constitution (as amended) empowers the Revenue Mobilization and Fiscal Commission to regulate the salaries and allowances of public office holders, and it was in exercise of this power that a subsidiary legislation: Revised Remuneration Package for Political, Public and Judicial Officers (States and Local Government Legislation vol. 4) June 2009 was issued. Counsel is of the view that by virtue of Section 122(2) of the Evidence Act and the holding in <b>Adene vs. Dantunbu (1994) 2 NWLR (Pt. 328</b>), a subsidiary legislation has the force of law, and the court is obligated to take judicial notice of it, irrespective of the fact that the Revised Remuneration Package Review Circular 2009 was not tendered in evidence. Further, counsel argued that as per the deposition of DW1 and the evidence of CW1 under cross-examination, Section 120 of the 1999 Constitution (as amended) makes the Imo House of Assembly an independent body with finances under the consolidated funds, which pays the salaries and allowances of its members. Also, it is counsel’s argument relying on <b>Mogaji vs. Odofin Bello (1978) 3 SC 91</b>, that the executive arm of Government does not control the money for the House of Assembly, and cannot be responsible for the payment of House of Assembly members because that runs contrary to the doctrine of separation of powers. Counsel submitted that the DW1 did not contradict himself to amount to an admission against self, in that DW1’s evidence agrees with the fact that the Claimant is owed, and if the Claimant is owed, the Defendants in this case are not responsible for such payment. Finally, counsel urged the court to hold that the Claimant has failed to prove his case and is not entitled to the reliefs sought.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:4.0pt;font-family:"Comic Sans MS"; mso-bidi-language:HE"> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-bidi-language:HE">In the Claimant Counsel’s Reply on points of Law, counsel in response to the Defendants’ objections to Exhibits B and D, submitted that what governs admissibility is relevance, and a relevant document is admissible. Counsel submitted further that Exhibits B and D are admissible because they are both relevant to the facts in issue in this case. More so, counsel contended that Exhibit B is a public document within the contemplation of Section 102(a)(ii) of the Evidence Act, because it emanated from an official body as indicated on the face of it. It is counsel’s contention that the absence of the letter head on Exhibit B does not remove its status as a public document. Similarly, counsel asserted that Exhibit B was duly signed by the appropriate officers of the Commission because it was signed by 31 out of 36 Commissioners, Members from each state of Nigeria; and it was duly certified as required by Section 104(1) of the Evidence Act, bearing the stamp and seal of the Commission as the Certified True Copy of a public document. Also, counsel submitted that though evidence of payment was not tendered, Exhibit B was paid for. Citing<b><i> </i>Tabik Investment Ltd vs. GTB Plc (supra)</b>, counsel submitted further that the court can order the production of evidence of payment for certification or make an order that payment be made where necessary.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:4.0pt;font-family:"Comic Sans MS"; mso-bidi-language:HE"> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-bidi-language:HE">Regarding Exhibit D, counsel’s opinion is that it was tendered in compliance with Section 89(c) and 90(1)(a) of the Evidence Act, and CW1 laid the proper foundation. In the same vein, counsel submitted that this court is empowered under Section 12(2) of the National Industrial Act 2006 to depart from the Evidence Act in the interest of justice; and urged the court to admit Exhibits B and D in evidence in the interest of justice. Again, counsel submitted that the failure of the Defendants’ counsel to cross-examine the Claimant on the issue of security allowance is fatal to their case because address of counsel cannot take the place of evidence, citing <b>Ibikunle vs. Lawani (2007) 3 NWLR (Pt. 1022) 580</b>. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-bidi-language:HE">Furthermore, counsel argued that the Revised Remuneration Package Review Circular 2009, which the court was urged to judicially notice was not tendered in evidence, which makes it impossible for the court to act on it because parties are bound by their pleadings and the court cannot act on evidence not before it. Counsel urged the court to discountenance the Defendants’ counsel’s argument and enter judgment in favour of the Claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:4.0pt;font-family:"Comic Sans MS"; mso-bidi-language:HE"> </span></p> <p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:0in; margin-left:1.5in;margin-bottom:.0001pt;text-align:justify;text-indent:.5in; line-height:normal"><b><u><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">COURT’s DECISION<o:p></o:p></span></u></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">The Claimant claims the sum of <s>N</s>12,014,595.00 from the Defendants which sum he said represents unpaid severance gratuity, accommodation and security allowances due to him as a member of the Imo State House of Assembly between May 2007 and June 2011 but which the Defendants have refused to pay to him. It is his case that he was elected a member of the Imo State House of Assembly on 14<sup>th</sup> April 2007 to represent Ijaba State Constituency and on 20<sup>th</sup> April 2007, the Independent National Electoral Commission issued him a certificate of return. He served as a member of the Imo State House of Assembly from May 2007 to June 2011. I</span><span style="font-size:12.0pt;font-family:"Comic Sans MS"">n February 2007, the Revenue Mobilization and Fiscal Commission (RMAFC) fixed the remuneration package for political, public and judicial office holders in Nigeria. By virtue of the remuneration package as determined by RMAFC, he was entitled to be paid the following sums: <s>N</s>1,337,225.00 as annual basic salary; 75% of the annual basic salary, amounting to <s>N</s>1,002,918.75 as annual accommodation allowance; and 300% of his annual basic salary, amounting to <s>N</s>4,011,675, as severance gratuity. The Claimant also averred that as a member of the Imo State House of Assembly, he was also entitled to the sum of <s>N</s>7,000,000.00 as security allowance which payment was captured in the 2011 appropriation Law of Imo State. The total sum outstanding to be paid to him is <s>N</s>12,014,595.00 which the Defendants have refused to pay to him despite repeated demands. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS""> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS"">Only the 1<sup>st</sup> to 4<sup>th</sup> Defendants presented a defence to the action. The 5<sup>th</sup> Defendant did not defend the suit. The 1<sup>st</sup> to 4<sup>th</sup> Defendants admitted the averments in paragraphs 2, 3, 4, 5, 6, 7 and 8 of the statement of facts. The facts admitted are to the effect that the Claimant </span><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">was elected a member of the Imo State House of Assembly and he served as a member of the Imo State House of Assembly from May 2007 to June 2011. I</span><span style="font-size: 12.0pt;font-family:"Comic Sans MS"">n February 2007, the Revenue Mobilization and Fiscal Commission fixed the remuneration package for political, public and judicial office holders in Nigeria in a reviewed remuneration package released in February 2007. DW1 who testified for the 1<sup>st</sup> to 4<sup>th</sup> Defendants stated that he is the principal litigation officer in the Imo State House of Assembly. From the records of the Imo State House of Assembly, the Claimant was a former member of the Assembly. The salary, allowances and gratuity of the Claimant was not fixed by the RMAFC and no percentage of the Claimant’s claims is mentioned and no amount is provided in the circular from RMAFC. The Imo State House of Assembly is responsible for the monies claimed by the Claimant and not the 1<sup>st</sup> to 4<sup>th</sup> Defendants. The Claimant is not entitled to his claim for security allowance and severance. In the remuneration package, security is to be provided and not payable in cash. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS""> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS"">It is not in dispute that the Claimant was a member of the Imo State House of Assembly from May 2007 to June 2011. The total sum claimed from the Defendants is </span><s><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">N</span></s><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">12,014,595.00 </span><span style="font-size:12.0pt;font-family:"Comic Sans MS"">which the Claimant said was due to him as a member of the Imo State House of Assembly. According to the Claimant, the sum is comprised as follows: <s>N</s>1,002,918.75 as accommodation allowance being 75% of his annual basic salary, <s>N</s>4,011,675.00 as severance gratuity being 300% of his annual basic salary and <s>N</s>7,000,000.00 as security allowance. From his evidence, he is entitled to the payments by virtue of the RMAFC circular 2007 and the 2011 appropriation Law of Imo State. The Claimant tendered the RMAFC circular 2007 in evidence as Exhibit B but the 2011 appropriation Law of Imo State was not produced.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">Exhibit B is a document from the </span><span style="font-size:12.0pt;font-family:"Comic Sans MS"">Revenue Mobilization Allocation and Fiscal Commission on the review of remuneration package for political, public and judicial office holders in Nigeria. The counsel to the 1<sup>st</sup> and 4<sup>th</sup> Defendant has objected to the admissibility of the document. In their final written address, the counsel to the 1<sup>st</sup> and 4<sup>th</sup> Defendants urged the court to expunge Exhibit B on the following grounds: It is not on the letter head of RMAFC; it is not signed by the appropriate officer, that is, not signed by the Chairman of the commission, Engr. Hamman Tukur; no payment of legal fee as required in Section 111 Evidence Act and not certified at the foot as required in Section 104 Evidence Act; There is no legal department in RMAFC and that the head of legal department is not signatory to the document nor is he the secretary of the Commission; the document was not produced from proper custody and has a doubtful origin and authenticity. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS""> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS"">I have examined the document and I observe as follows: It is headed “REVENUE MOBILIZATION ALLOCATION AND FISCAL COMMISION, ABUJA” and titled “REMUNERATION PACKAGE FOR POLITICAL, PUBLIC AND JUDICIAL OFFICE HOLDERS IN NIGERIA, VOLUME II. THE REVIEWED REMUNERATION PACKAGE FOR THE LEGISLATURE AT THE FEDERAL, STATE AND LOCAL GOVERNMENT LEVELS”. The date stated on the face is FEBRUARY 2007. A stamp of RMAFC was affixed on it with a statement “CERTIFIED TRUE COPY”. The name of the certifying officer is stated as I.K. NUHU with his signature, designation as Head of Legal and dated 27/3/12 as date of certification. I will not waste time on this objection but to overrule counsel’s objection at once. The grounds of the objection are quite frivolous. I see counsel’s submissions as an attempt to divert the attention of the court from the main issue. In paragraph 8 of the statement of fact, the Claimant pleaded this 2007 circular of RMAFC which fact the 1<sup>st</sup> to 4<sup>th</sup> Defendants admitted in paragraph 2 of the statement defence. Meanwhile the Defendants did not tender any other circular of 2007 different from what the Claimant has tendered. Again, in paragraph 10 of the statement of defence, the Defendants pleaded thus: “The Defendants will rely on the document called Remuneration Package for Political, Public and Judicial Office Holders already pleaded by the Claimant”. Exhibit B is that document. I do not therefore see any basis for alleging that Exhibit B is not authentic or that it has a doubtful origin. In any case, the document is clearly headed to show that it emanated from the RMAFC. There is also a list of the Commissioners of the RMAFC where they signed including the secretary of the RMAFC. I am also satisfied that it is certified by an officer of the Commission in accordance with the provisions of the Evidence Act. I find the document, which is pleaded, to be relevant and admissible. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS""> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS"">The RMAFC is the body constitutionally empowered to determine the salaries and allowances payable to political, public and judicial office holders in Nigeria. See Sections 70, 84, 111 and 124 and paragraph 32 of the 3<sup>rd</sup> schedule of the 1999 Constitution. It was in exercise of the powers the RMAFC issued the remuneration package circular which is Exhibit B. The Defendants’ counsel did also argue that the Claimant is not entitled to the claims sought on the basis of Exhibit B because Exhibit B has been amended in a review circular of 2009 which counsel urged this court to take judicial notice of as it is a subsidiary legislation. Counsel further submitted that having been reviewed, the 2007 circular is no longer in existence and the Claimant cannot found his claim on it. I have examined the pleading and evidence adduced by the Defendants but I find that there is no where they pleaded or mentioned the said review circular of 2009. No fact relating to it was averred in the statement of defence. In fact, the defence of the claim did not contemplate the said review circular of 2009. By their pleading in paragraph 2 of the statement of defence, the Defendant admitted the Claimant’s pleading in paragraph 8 of the statement of facts where the claimant pleaded Exhibit B of February 2007 as the document in which the RMAFC fixed the remuneration package for political, public and judicial office holders. In paragraphs 6 and 10 of the statement of defence, the Defendants relied on the content of Exhibit B in its defence of the claim. That is to say the document which the parties’ pleadings contemplated for the determination of the Claimant’s claim is Exhibit B. The counsel for the 1<sup>st</sup> and 4<sup>th</sup> Defendants’ reliance on the review circular of 2009 in her final address to argue that the Claimant cannot claim under Exhibit B amounts to setting up a different case for the Defendants. It is trite that parties are bound by pleadings and are restricted to arguing their case within the parameters of their pleading. See <b>AGBOOLA vs. U.B.A. (2011) All FWLR (Pt.574) 74 at 89; ARCHBONG vs. EDAK (2006) All FWLR (Pt.323) 1631 at 1643; BRAWAL SHIPPING NIG. LTD vs. OMETRACO INT’L LTD (2011) All FWLR (Pt.574) 152 at 168. <o:p></o:p></b></span></p> <p class="MsoNoSpacing" style="text-align:justify"><b><span style="font-size:4.0pt;font-family:"Comic Sans MS""> </span></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS"">Again, the said review circular of 2009 was not produced before the court nor tendered in evidence but the counsel to the 1<sup>st</sup> to 4<sup>th</sup> Defendants have urged the court to take judicial notice of it. It is counsel’s argument that the said review circular of 2009 is a subsidiary legislation which brings it within the documents the court is permitted to take judicial notice. Let me ask. Assuming the review circular of 2009 is a document which this court can take judicial notice, for what use will it serve in this matter to take judicial notice of it? I think none. There is no fact pleaded in respect of the document for which it is to serve as proof. Merely examining the document without putting it to judicial use is going to be an exercise in futility. Therefore, I will not engage in the fruitless exercise of considering whether I can take judicial notice of review circular of 2009 or not. The remuneration package under which the Claimant’s claim in this matter remains to be considered, as disclosed in the parties’ pleadings, is Exhibit B. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS""> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS"">At pages viii and 25 of Exhibit B, the sum of <s>N</s>1,337,225.00 was prescribed as the annual basic salary for members of State House of Assembly. The reviewed allowances for the legislature are contained in chapter four of the exhibit. At pages 30/31, it provided for ACCOMODATION ALLOWANCES which is 75% of annual basic salary for members of Imo State House of Assembly. At page 36, it provided for SECURITY which will be provided in kind by relevant security agencies to concerned officers. At page 38, it provided for SEVERANCE GRATUITY which is payable after successful completion of tenure at 300% of annual basic salary. From Exhibit B, the Claimant is entitled to accommodation allowance and severance gratuity but not security allowance. Security is not in terms of cash. It appears however that the Claimant based his claim for security allowance on the 2011 Appropriation Law of Imo State. He said as a member of the Imo State House of Assembly, he was also entitled to the sum of <s>N</s>7,000,000.00 as security allowance which payment was captured in the 2011 Appropriation Law of Imo State. The 1<sup>st</sup> and 4<sup>th</sup> Defendants denied this claim in paragraphs 3 and 6 of the statement of defence thereby putting the duty to prove the allegation on the Claimant. The Claimant however failed to substantiate his claim that he is entitled to the sum of <s>N</s>7,000,000.00 as security allowance both under the 2011 Appropriation Law or in Exhibit B. The only items of the claim which are supported by evidence are accommodation allowance and severance gratuity. Going by Exhibit B, ACCOMODATION ALLOWANCES is 75% of annual basic salary while SEVERANCE GRATUITY is 300% of annual basic salary. The basic salary for members of House of Assembly in Exhibit B is N1,337,225.00. The Claimant himself pleaded that his annual basic salary was <s>N</s>1,337,225.00. 75% of the annual basic salary was payable as accommodation allowance and 300% of his annual basic salary payable as severance gratuity. According to the Claimant, what is due to him for accommodation allowance and severance gratuity are the sums of <s>N</s>1,002,918.75 and <s>N</s>4,011,675 respectively. The total sum which the Claimant is entitled to pursuant to Exhibit B is <s>N</s>5,014,593.75. The Claimant has proved that he has not been paid these allowances and had even demanded payment from the Defendants vide Exhibit C dated 28<sup>th</sup> November 2011<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS""> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS"">None of the Defendants have said the Claimant has been paid. What the 1<sup>st</sup> and 2<sup>nd</sup> Defendants contended instead is that they are not the ones responsible to pay the Claimant. In paragraph 7 of the statement of defence, it was pleaded by the 1<sup>st</sup> to 4<sup>th</sup> Defendants that they are not responsible for payment of monies claimed by the Claimant but it is the duty of the Imo State House of Assembly to do so. Learned Counsel to the 1<sup>st</sup> to 4<sup>th</sup> Defendants submitted that the Claimant is not owed any money and if owed any money at all, it is the House of Assembly which ought to pay the Claimant and not the 1<sup>st</sup> to 4<sup>th</sup> Defendants. Counsel further submitted that the executive arm has no control over money appropriated to the House of Assembly and cannot be responsible for payment of House of Assembly members. The Claimant, in paragraphs 2, 3, 4 and 5 of the statement of facts, described the 1<sup>st</sup> Defendant as the Government of Imo State, the 2<sup>nd</sup> Defendant as the Chief Executive of Imo State, the 3<sup>rd</sup> Defendant as the Chief Law Officer of Imo State and the 4<sup>th</sup> Defendant as the officer in charge of the accounts and funds of Imo State Government. In paragraph 11, the Claimant pleaded that the sums due to him are to be paid by the Defendants. Under cross examination, the Claimant explained that the legislature legislates on budget but does not control the funds. He also stated that the 5<sup>th</sup> Defendant pays only employees of the Assembly; it does not pay the legislators. Although DW1 stated in his evidence in chief that it is the responsibility of the Imo State House of Assembly to pay the monies claimed by the Claimant and not the responsibility of the Defendants, DW1 however contradicted himself in cross examination when he said that it is the responsibility of the Imo State Government to pay salaries and allowances to staff and members of the Imo State House of Assembly. The Government of Imo State is the 1<sup>st</sup> Defendant in this suit. I am aware that constitutionally, the Government of each state in Nigeria has control of its funds, whether internally generated or from the Federation Account. The responsibility for the appropriation and use of the funds, including paying salaries and allowances of political, public office holders or civil servants also lies with the State Government. The 2<sup>nd</sup> Defendant, the chief executive of the state, is the office</span><span style="font-family:"Comic Sans MS""> </span><span style="font-size:12.0pt; font-family:"Comic Sans MS"">who exercises power or authority on behalf of the Imo State Government. It was in the Government of Imo State the claimant served as member of the House of Assembly between 2007 and 2011. It cannot be contended that the Government of Imo State is not responsible to pay the members of the House of Assembly their salaries and due allowances. From the facts and evidence before me, I am firmly convinced that the Defendants, particularly the 1<sup>st</sup> and 2<sup>nd</sup> Defendants, have the responsibility to ensure that the Claimant was paid his allowances as a member of the Imo State House of Assembly as fixed by the RMAFC.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS""> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS"">In the result of all the foregoing, I find that the Claimant is entitled to accommodation allowance and severance gratuity. The claim for security allowance is refused. I also find that the Defendants have no defence to the claim. I accordingly grant the Claimant’s claim for accommodation allowance and severance gratuity in the total sum of <s>N</s>5,014,593.75. The Claimant also claims i</span><span style="font-size:12.0pt;font-family: "Comic Sans MS";mso-bidi-language:HE">nterest on the sum at the rate of 10% per annum from the date of the judgment until the judgment debt is liquidated. I grant this relief too. Consequently, the Defendants are ordered to pay the sum of </span><b><s><span style="font-size: 12.0pt;font-family:"Comic Sans MS"">N</span></s></b><b><span style="font-size:12.0pt;font-family:"Comic Sans MS"">5,014,593.75 (Five Million, Fourteen Thousand, Five Hundred and Ninety Three Naira, Seventy-Five Kobo)</span></b><span style="font-size:12.0pt;font-family:"Comic Sans MS""> to the Claimant </span><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-bidi-language:HE">within 30 days from today, after which the sum will attract 10% interest per annum. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">I also award cost of <b><s>N</s>200,000.00 (Two Hundred Thousand Naira)</b> in favour of the Claimant.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">Judgment is entered accordingly.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><b><span style="font-size:13.0pt;font-family:"Comic Sans MS";mso-bidi-language: HE">Hon. Justice O. Y. Anuwe<o:p></o:p></span></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">Judge<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><b><u><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></u></b></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt"><span style="font-size:12.0pt;line-height:115%;font-family:"Times New Roman","serif"; mso-bidi-language:HE"> <o:p></o:p></span></p>