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COURT’S JUDGMENT On March 25, 2014 the claimants filed this complaint against the defendant for the following reliefs: 1. Declaration that by virtue of the Osun State Public/Political Office Holders (Revised Remuneration Package) Law, 2007 each of the claimants is entitled to the payment of 300% of his/her Annual Basic salary as gratuity (severance gratuity) for being councillor representing his/her ward between the 11th day of January, 2008 and 17th day of December, 2010 in the defendant Local Government (Ilesa East Local Government of Osun State). 2. An Order directing and/or compelling the defendant to effect immediate payment of the gratuities (severance gratuities) of the claimants as councillors representing wards 1 to 8 and wards 10 to 11 respectively in the defendant Local Government (Ilesa East Local Government of Osun State) between the 11th day of January, 2008 and 17th day of December, 2010; which severance gratuities are as follows: 1. 1st claimant – N760,000.00 X 300% = 2,280,000.00 2. 2nd claimant – N760,000.00 X 300% = 2,280,000.00 3. 3rd claimant – N810,000.00 X 300% = 2,430,000.00 4. 4th claimant – N760,000.00 X 300% = 2,280,000.00 5. 5th claimant – N760,000.00 X 300% = 2,280,000.00 6. 6th claimant – N760,000.00 X 300% = 2,280,000.00 7. 7th claimant – N760,000.00 X 300% = 2,280,000.00 8. 8th claimant – N760,000.00 X 300% = 2,280,000.00 9. 9th claimant – N760,000.00 X 300% = 2,280,000.00 10. 10th claimant – N811,300.00 X 300% = 2,433,900.00 TOTAL = 23,103,900.00 Other initiating processes were filed along with the Complaint in line with the Rules of this Court. In response and in compliance with the Rules of this Court, the defendant entered appearance through its counsel and filed its statement of defence and counter claim; counter-claiming as follows: (i) An order for an immediate refund of the under-listed sums illegally received by them as salaries and allowances between January 2008 and December 2010 pursuant to their declaration as councilors in the election held by Osun State Independent Electoral Commission on 15th December, 2007 and which election has been declared as illegal, null and void by the judgment of the Supreme Court of Nigeria delivered on 17th December, 2010: i. Hon. Taiwo Ilesanmi N11,317,634.64 ii. Hon. (Mrs) Grace Alonge N10,658,199.84 iii. Hon. Amigun Wole Phillips N10,942,399.92 iv. Hon. Jegede Wale Francis N10,373,999.76 v. Hon. Akinborode Olowolagba N10,373,999.76 vi. Hon. Olusanya Olurotimi N10,373,999.76 vii. Hon. Alaba Ojo N10,373,999.76 viii. Hon. Ogunseun Gbenga N10,373,999.76 ix. Hon. Dagunduro Kayode N10,373,999.76 x. Hon. Ajumobi Taiwo N10,373,999.76 (ii) The sum of N3,500,000.00 (Three Million, Five Hundred Thousand Naira) being avoidable cost incurred by the Defendant in prosecuting and defending this action. CLAIMANTS’ CASE The case of the claimants are that they were elected councilors in the defendant Local Government during the Local Government Election conducted in Osun State and remained in office until the 17th day of December, 2010 when the Supreme Court declared the election that brought them in as null and void for failure to comply with the necessary provisions of the Electoral Act on the period of notice to be given to the public and political parties before conducting the local government election. They continued that having spent or occupied office for a period of 2 years, 11 months and 7 days (out of their 3 years term in office) before the judgment of the Supreme Court that sacked them was given, they are entitled to payment of their gratuities/severance benefits in line with the Provisions of the Osun State Public/Political Office Holders (Revised Remuneration Package) Law, 2007. DEFENDANT’S CASE The case of the defendant on the other hand, is that the claimants are not entitled to the payment of gratuities/severance benefits after being illegally and unconstitutionally elected in view of the nullification of their election by the Supreme Court of Nigeria. This is because that nullification means that the claimants are not Public/Political Office Holders in the defendant/Local Government Area. During the hearing of the case, the 8th claimant, Dagunduro Kayode testified as CW1 and tendered Documents C.1 to C.7 (h) for all the claimants and the defendant called one witness; by name Prince Samson Adekunle Aromolaran who testified as DW1 and tendered Documents D.1- D.7 in evidence for the defendant. After the parties’ testimonies, the Court directed counsel to the parties to file their final written addresses in line with the Rules of this Court and they complied with the direction. In the final written address of the defendant, its counsel raised issues for determination as: 1. Whether by the judgment of the Supreme Court delivered on 17th December, 2010 and reported in the Supreme Court Monthly Law Report as Osun State Independent Electoral Commission & Anor. v. Action Congress & Ors. [2010] 12 (Pt. 2) S.C.N. 224, the Claimants were ever Councilors in the employment of the Defendant/Council as to entitle them to the reliefs contained in their Complaint. 2. Whether, by the said judgment, the claimants (sic) are not entitled to refund the various sums individually received by them as emolument comprising of basic salary and allowances. Arguing issue one, counsel referred the Court to Page 260 Paragraph C of the Monthly report that reported the election that brought the claimants to the employment of the defendant together with the cases of Labour Party v. INEC [2009] 6 NWLR (Pt. 1137)315; Amaechi v. INEC [2007] 9 NWLR (Pt. 1040) 504 and Abubakar v. Nasamu [2012] LPELR-7862(SC) and then submitted that, from the face of the judgment of the Supreme Court, which classified the election as null and void; the claimants were never in the employment of the defendant and by extension they cannot enjoy any benefit from the said appointment. He contended that the provisions of Osun State Public/Political Office Holders (Revised Remuneration Package) Law, 2007 is only applicable to validly elected Political Office Holders and not to the claimants whose election was declared null and void. To counsel, Exhibits C.2 (a) and C.3 (a) are not relevant to the just determination of this matter as same were issued prior the delivery of the judgment of the Supreme Court on 17th December, 2010 upon which the claimants ceased to exist. He went on to submit that the claimants failed to show credible and convincing evidence that the money paid by the Governor to them was meant for their November 2010 salary; since their sole witness admitted under cross-examination that the defendant (Ilesa East L.G.A.) paid them the said sum. In arguing issue two of whether the defendant is entitled to all payments it made to the claimants as councilors between 2008 and 2010; the defendant’s counsel sub-divided the issue to two: a. Whether this Honourable Court has the jurisdiction to order a refund of all emoluments collected by the Claimants between 2008 and 2010 and b. Whether the defendant has proved the various sums allegedly collected by the Claimants as salaries and emoluments. On sub issue a. counsel submitted that by the Apex Court’s judgment, this Court can order a refund of any sum illegally received by any Politician as salary and emolument during his illegal stay in office. To him, the said sum is refundable, even where same is not claimed at the trial Court and on appeal, citing the decision of the Supreme Court in Jenkins Giane Duvie Gwede v. Independent National Electoral Commission (INEC) & Ors delivered on 24th October, 2014 and reported in the Law Pavilion Electronic Law Report as [2014] LPELR-23763(SC).He urged the Court to so hold. In resolving Sub-Issue 2, counsel referred to the claim of the defendant as contained in the Statement of Defence and Counter-Claim and in its pleadings; he then contended that the claimants have failed to specifically deny ever receiving the said sums in their Reply and Defence to Counter-Claim; referring to paragraphs 21 and 22 of the Reply and Defence to Counter Claim. Counsel submitted that it is settled that facts not denied are deemed admitted, citing Chief Raymond D. Ogolo & Ors v. Chief Paul D. Fubara & Ors. [2003] LPELR-2310(SC) and urged the Court to so hold. The claimants filed their final written address through their counsel who formulated two issues for determination of the Court this way: 1. Whether the claimants who were elected on 15/12/07 and sworn-in on 11/01/08 have been able to establish, on the preponderance of evidence that they are entitled to their claims before the Court. 2. Whether the defendant has been able to establish by credible, convincing and sufficient evidence that it is entitled to any of the legs of its counter-claim. Before treating these formulated issues, counsel canvassed that there is no defence to the statement of facts before the Court because what the defendant reacted to in its statement of defence and counter-claim is the complaint; referring to the opening paragraph and to paragraphs 1 & 2 of the said statement of defence and counter-claim. The claimants’ counsel then went on to argue his framed issues in case the court is inclined to excuse the defendant on the mentioned flaw. Arguing the first issue, counsel referred to paragraph 1 of the statement of facts, paragraphs 9, 10, 12 and 13 of the reply to statement of defence and Defence to counter-claim, Documents C1 – C1 (i), C7-C7 (h) and D4 as well as paragraphs 2, 3, 4, 20, 21, 23 and 24 of the written statement on oath of CW1. He again refers to paragraphs 19 and 30 of the statement of defence and counter-claim as well as paragraphs 35 (ii) and 35 (iii) (d) of the written statement on oath of DWI (Prince Samson Adekunle Aromolaran). He continued that the claimants became entitled to the said gratuity by virtue of their being in office between January 2008 and December 2010 in line with the provisions of section 210 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and section 6 of the Osun State Public/Political Office Holders (Revised Remuneration Package) Law, 2007. Counsel referred to the case of Osun State IEC v. AC [2011] 42 WRN pg. 1 (also relied upon by the defendant) and contended that the Supreme Court rejected the same argument of the defendant here, which was canvassed in that case. He maintained that all the authorities cited by the learned counsel to the defendant are not relevant to this case at all. He went on that, in its ruling on the Preliminary Objection of the defendant in Suit No: NICN/0S/06/2015 between Hon. Adeleke Funmilayo & Ors v. Atakunmosa East Local Government Area (Osun State) delivered on June 1, 2016; this Court relied on the above position of the Supreme Court and held thus: “This is the case law position on the issue at hand. In other words, the Supreme Court’s position on the salaries, privileges and or benefits which accrued to the claimants as a result of their election prior to its nullification is that these entitlements should not be taken away from them.” To counsel, by the combined effect of the provision of section149 of the Electoral Act, 2006; the ruling of this Court on the Preliminary Objection in Hon. Adeleke Funmilayo & Ors v. Atakunmosa East Local Government Area (Osun State) cited (supra) and the decision of the Supreme Court in the above cited case; the claimants were validly in office and all what they did were validly done between 11/01/08 and 17/12/10 when their election was eventually annulled by the Supreme Court. He urged the Court to so hold. Arguing issue two of whether the defendant is entitled to its counter-claim, counsel submitted that defendant has failed to prove that it is entitled to any of the legs of its Counter-claim. To him, leg 1 of the defendant’s counter-claim, which is asking the claimants to refund the salary, allowances and other benefits that they earned prior to the nullification of their election, based on the judgment of the Supreme Court in Osun State I.E.C. v. AC (supra); he submitted that these salaries, allowances and other emoluments so earned by the claimants cannot be taken away from them. This is because they are rights that enured to them following their election and that the nullification of the election does not affect their status as councilors in the defendant Local Government area prior to the Supreme Court judgment of 17/12/10 referring to pages 74-75 of that decision and also to the ruling of this Court in Hon. Adeleke Funmilayo & Ors v. Atakunmosa East Local Government Area (Osun State) (supra). Furthermore, counsel contended that by the averments in paragraphs 19 and 30 of the statement of defence and counter-claim, the defendant admitted expressly that the claimant were in office between the date they were sworn-in and the date of the judgment of the Supreme Court on 17/12/10. His position is that the case of Jenkins Giane Duvie Gwede v. INEC & Ors (supra) cited by the defendant’s counsel is not relevant to this case in the sense that the facts of that case and issues decided by the Court are completely different from the facts and issue involved in this case. On Leg 2 of the defendant’s counter-claim, counsel submitted that Documents D4-D7 are made during the pendency of this case and so, they are not admissible in law; citing Section 83 (3) of the Evidence Act together with the cases of Anisu v. Osayomi [2008] 19 W.R.N 138 at 165 and Unilorin v. Olawepo [2012] 52 WRN 42 at 72. He urged the Court to so hold. Again, counsel submitted that it is unethical and an affront to public policy for the defendant to pass on the burden of its solicitor’s fees to the claimant; citing Guinness Nigeria Plc. v. Nwoke [2000] 12 NWLR (Pt. 689) 135 as well as the unreported judgment of this Court delivered on September 30, 2014 in Suit No: NICN/PHC/13/2013 between Mr. Livinus C. Uhuegbu v. Ecobank Nig. Plc. Counsel finally prayed the Court to grant the claimants’ reliefs. COURT’S DECISION I have gone through the facts of this case, the evidence of the parties and the written arguments of their counsel. From all of these, I am of the humble view that the followings are the issues to be resolved between the parties: 1. Whether or not the claimants are entitled to their severance gratuities as claimed. 2. Whether or not the defendant/counter-claimant is entitled to counter claim the salaries and other allowances already paid to the claimants before their election was declared null and void and also to counter-claim the cost of its defence. Before going into the merit of this case, let me determine some preliminary points that came up in this trial. Firstly and to the claimants’ counsel, there is no defence to the claimants’ pleadings before the Court because the depositions in the statement of defence and counter-claim are reactions to the endorsements on the claimants’ complaint; hence, the claimants’ counsel urged the Court to hold that the defendant did not traverse the pleadings of the claimants. The opening paragraph and paragraph 1 of the Statements of Defence and Counter-Claim state: SAVE AND EXCEPT it is hereinafter expressly admitted, the Defendant denies each and every allegation contained in the Complaint as if each and such allegation of fact were set out seriatim and specifically traversed. 1. The Defendant admits Paragraph 2 of the Complaint only to the extent that it is one of the existing Local Government Areas in Osun State and has its Secretariat at Iyemogun Road, Ilesa. The word ‘Complaint’ used in the two quoted paragraphs of the defendant’s pleadings is meant to be “Statement of Facts” in my opinion. These pleadings are signed by Femi Sarumi Esq. (ChMC); the defendant’s counsel. In my considered view, this is a mistake of counsel that should not be visited on the litigant. In SPDC & Ors v. Agbara & Ors [2015] LPELR-25987(SC); the Supreme Court held inter alia that “it is a well laid down principle of the law that a court of law, because of the counsel's error of judgment, carelessness misapprehension commission or omission will not punish a litigant or visit that innocent litigant with the sin committed by his counsel unless it can be shown that the litigant himself was a party to the commission of the sin. On this same principle, see also the cases of Ogundoyin & Ors v. Adeyemi [2001] LPELR-2335(SC): [2001] 13 NWLR (Pt.730) 403: [2001] 7 S.C (Pt. II) 98: (2001) All N.L.R 470; Iyalabani Company Ltd v. Bank of Baroda [1995] LPELR-1572(SC): [1995] 4 NWLR (Pt.387) 20 and Noga Hotels International S.A. v. NICON Hilton Hotels Limited & Ors [2006] LPELR-11811(CA); [2007] 7 NWLR (Pt.1032) pg.86. It is not shown that the defendant in the instant case was a party to the commission of the sin of its counsel. Based on the decisions of the Apex Court in Nigeria, therefore; coupled with the fact that the duty of this Court is to do substantial justice in this matter, I hold that this mistake of Sarumi Esq. will not be visited on the defendant, Ilesa East Local Government Area of Osun State. The second preliminary issue is that the claimants’ counsel is challenging the admissibility of Documents D.1 to D.3 on the ground that they were made during the pendency of this case; citing section 83 (3) of the Evidence Act. As shown earlier in this judgment, this suit was filed on March 26, 2014; see page one of the record. Documents D.1 to D.3 are at pages 298 to 300 of the record; they the breakdowns of salaries and allowances of the claimants for years 2008, 2009 and 2010 respectively. The documents are signed by one Alhaji T. A. Adeleke with the stamp of Deputy Director of Finance for the defendant on them. The dates that these documents were authored are not stated on them, therefore; the Court cannot discern whether they were made before or after this case was filed. In the circumstance, I hold that the claimants have failed to satisfy this Court that the defendant made Documents D.1 to D.3 during the pendency of this case; the objection is accordingly overruled and dismissed. I further hold that the three documents were properly admitted in evidence in this case. Are the Claimants Entitled to Their Severance Gratuities As Claimed? The claimants’ contention in support of their claim is that they had put in 2years 11months and 6days service into their three years tenure before their election was declared null and void. Therefore, they are seeking for payment of 300% of their Annual Basic salary as gratuity (severance gratuity) for being councillors representing their respective wards with the defendant from January 11, 2008 to December 17, 2010 as guaranteed by the provisions of Osun State Public/Political Office Holders (Revised Remuneration Package) Law, 2007. Gratuity or severance benefits are payments from employers to employees at the end of the employees’ service to their employer either as agreed upon by the parties or as guaranteed by law, whichever one is applicable. All the parties in the instant case are in agreement that the election of the claimants was declared invalid, null and void by the Supreme Court towards the end of their tenure in the case of Osun State & Anor v. Action Congress & Ors [2011] 42 WRN 1: [2010] 12 SC (Pt. iv) 161. However, the claimants still canvassed through their counsel that even though their election was eventually declared null and void; their gratuities had accrued to them after they had served the defendant for two years, which was before the nullification; quoting the concurrent judgment of Onnoghen JSC (as he then was) on the case of Osun State & Anor v. Action Congress & Ors (supra). At pages 74 and 75 paragraphs 40 to 10 of the Report on Osun State & Anor v. Action Congress & Ors [2011] 42 WRN; his Lordship held thus: The second point I want to comment on is the principle that the nullification of an enactment does not affect rights and liabilities that might have accrued under it and prior to the nullification. The above principle remains good law but the question is, whether it applies to the facts of this case. I hold the considered view that the principle applies herein in the sense that whatever salary, privileges and or benefits the appellants in the second appeal might have earned or enjoyed prior to the nullification of the enactment under which their election was conducted cannot be taken away following the nullification. These are the rights that enured to the appellants following the election in question. The nullification also does not affect the status of the appellants as Chairmen of their respective Local Government Councils during the life span of the enactment under which they were elected i.e. prior to the nullification. In compliance with the Apex Court’s decision; I find that whatever salary, privileges and or benefits these claimants before the Court had earned or enjoyed prior to the nullification of their election cannot be taken away from them. However, it is my considered view that whatever the claimants were entitled to under the law that brought them in as councilors but which have not been claimed nor enjoyed by them before the nullification can no longer be enjoyed or claimed by them now because their election has been declared null and void and I so hold. Consequently, I hold that the claimants are not entitled to claim from the defendant, payment of 300% of their Annual Basic salary gratuity as claimed on March 26, 2014 when they filed this suit because their election as councilors into the defendant Local Government from January 11, 2008 to December 17, 2010 was declared null and void by the Supreme Court since December 17, 2010. The claimants’ claim for gratuity is accordingly dismissed. On Whether the Defendant/Counter-Claimant is Entitled to Its Counter Claim The defendant/counter-claimant is counter claiming before the Court all the money, allowances and benefits paid to the claimants while they were councilors with the defendant because the election that brought them in was declared null and void, which means that the claimants functioned as councilors illegally at the material time. We should bear in mind that main issue in the case of Osun State & Anor v. Action Congress & Ors (supra) was that before the conduct of the election to the various Local Government Areas of Osun State, twenty one (21) days’ notice was given to the electorates in line with the provisions of the Electoral Law, 2002 of Osun State instead of giving them one hundred and fifty (150) days’ notice as provided in the Electoral Act, 2006. The Supreme Court declared the Electoral Law, 2002 of Osun State inconsistent with the provision of the Electoral Act, 2006 and so, the election held by applying the provisions of the Electoral Law, 2002 of Osun State was declared invalid, null and void. On this counter-claim, therefore; I will still refer to the holding of His Lordship Onnoghen JSC as reproduced above. His Lordship held that the nullification of an enactment does not affect rights and liabilities that might have accrued under the enactment prior to the invalidation of the enactment. This means that in the instant case, for the period that the Electoral Law, 2002 of Osun State was in operation, it was a good law and all salaries and benefits paid to and enjoyed by the claimants under it at the material time cannot be taken away from them. Consequently, I hold that all the payments made to the claimants as councilors by the defendant from January 11, 2008 to December 17, 2010 are the rights that enured to the claimants following their elections as councilors with the defendant at the material time. I further hold that the defendant is not entitled to the counter-claim, and the said counter-claim is hereby dismissed. On the cost of prosecuting its defence- The defendant is also counter-claiming the sum of N3,500,000.00 (Three million, five hundred thousand naira) being avoidable cost incurred by the defendant in prosecuting and defending this action. The position of the law is that it is unethical and an affront to public policy to pass on the burden of solicitor's fees to the other party as it is an unusual claim that is difficult to accept in this country as of today; see the cases of S.P.D.C. v. Okonedo [2007] All FWLR (Pt. 368) 1104 at 1137 - 1138 Paras. E – D and Nwanji v. Coastal Serv. (Nig.) Ltd [2004] 11 NWLR (Pt.885) : [2004] LPELR- SC.151/199. See also the unreported decision of this Court similar issue in the case of Dr. Sunday Olusola Peters v. Federal University of Agriculture, Abeokuta & 2 ors, Suit No: NICN/AB/09/2013 Judgment of which was delivered on May 19, 2015. In the circumstance, I hold that the defendant is not entitled to the sum of N3,500,000.00 being counter-claimed against the claimants and this counter-claim for cost is accordingly dismissed. On the whole both the claims and counter-claims failed and they are accordingly dismissed. Judgment is entered accordingly. I make no order as to cost. Hon. Justice F. I. Kola-Olalere Presiding Judge