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JUDGMENT On the 6th day of January 2014 the Claimants filed this complaint against the Defendants jointly and severally, seeking the following reliefs: 1. The sum of N255,588,382.82 (Two Hundred and Fifty-Five Million, Five Hundred and Eighty-Eight Thousand, Three Hundred and Eighty Two Naira, Eighty Two Kobo) being April and May 2011 salaries and severance entitlement due to the Claimants from the Defendants as members of the Imo State Executive Council between August 2007 and 2011, which the Defendants have failed, refused and/or neglected to pay despite repeated demands. 2. Interest at the rate of 10% from the date of judgment until the judgment debt is liquidated. The Complaint was filed along with the Statement of Facts, Claimants’ List of Witnesses, written deposition of Claimants’ witness, Claimants’ List of Documents and Copies of Documents to be relied on. These originating processes were served on the Defendants. The Defendants on the 20th day of February 2014, vide a motion for extension of time, entered appearance and subsequently regularised their Defence processes. After several interlocutory applications were heard and dealt with, this suit proceeded to hearing on 13th January 2016. Both parties called one witness respectively. The 48th Claimant testified on behalf of the Claimants as CW1. Howells Ahamefula, a Deputy Director in the Imo State Ministry of Finance, testified on behalf of the Defendants as DW1. Hearing was concluded on the 14th day of July 2016 and both parties were ordered to file their final written addresses in accordance with the Rules of this Court. The Claimants’ Final Written Address was filed on the 6th day of October 2016. The Defendants’ Final Address was filed on the 7th day of October 2016. These were duly regularised; and parties adopted their respective final addresses on the 10th day of October 2016. In the Defendants’ final address, counsel identified 3 issues for determination, as follows: 1. Whether the Claimants have proved their cases on the preponderance of evidence. 2. Whether in a consolidated trial/action each Claimant is not supposed to prove his personal claim. 3. Whether PW1 can actually represent the other Defendants. (sic). Counsel began his argument by tackling his third issue. In this regard, counsel submitted that the Claimants’ only witness cannot represent other Claimants by giving evidence on their behalf, irrespective of the fact that he stated that he had the consent of the other Claimants. It is counsel’s submission that the condition precedent for commencing a representative action includes the following: 1. There must be numerous persons interested in the case of the side to be represented 2. All those interested must have the same interest in the suit, i.e. their interest must be joint and several 3. All of them must have the same grievance 4. The proposed representative must be one of them 5. And the relief sought must be in its nature beneficial to all persons being represented. See LAWAL vs. A.G. GENERAL KWARA STATE (2012) All FWLR (Pt. 618) 958 at 991 and OFIA vs. EJEM (2006) All FWLR (Pt. 324) 1816. Counsel argued that in the extant case the Claimants witness’ deposition, which was adopted as his evidence indicated that the 1st - 10th and 12th Claimants were Commissioners, while the 29th - 51st Claimants were Senior Special Assistants. Also, counsel contended that the 48th Claimant who testified as the only witness was neither a Commissioner nor a Special Assistant, and the salaries and severance allowances claimed by the 1st - 10th and 12th Claimants are not the same with his own. Again, counsel submitted that the Claimants’ witness falsely claimed in his deposition that he was appointed as Senior Adviser; and the conditions for representative action enumerated above are not satisfied in him. It is counsel’s submission that the Claimants’ witness cannot represent other Claimants in this suit, lacks locus standi to give evidence in favour of the other Claimants; and the case of the Claimants ought to be dismissed for lack of proof. Counsel argued issues 1 and 2 together and asserted that the Claimants have not proved their claim on the preponderance of evidence before the court. Counsel submitted that the 48th Claimant’s evidence is at variance with his pleading, in that the 48th Claimant in the statement of facts and written deposition stated that he served the 1st Defendant as a Senior Special Adviser but the appointment letter tendered in evidence showed that he was appointed as a Chief Press Secretary. Counsel added that this evidence is contradicting and fatal to the 48th Claimant’s case because he admitted under cross-examination that he does not practice journalism. Again, counsel submitted that though the Claimants hinged their claim on Exhibit C25, they failed to lead evidence in compliance of its provisions. Counsel submitted further that on page 41, paragraph xxi of Exhibit C25 titled SEVERANCE GRATUITY reads thus: “For the purposes of the provision of this allowance…the recommendation is to maintain this allowance at 300% of annual basic salary enjoyable by elected, appointed, political, public and judicial office holders at all tiers of government after successful completion of each tenure. This should be on condition that, the effected officers would have disengaged honourably, by which is meant that cessation of service must not be due to impeachment, dismissal or termination of appointment due to proven case of impropriety and/or related offences…any officer who has served a minimum of two years of the period of tenure would be deemed due for the payment of severance gratuity on a pro-rata basis.” Counsel argued that from the conditions listed in Exhibit C25 above, CW1 ought to have led evidence relating to each Claimant’s tenure in order to enable the court determine whether each Claimant has successfully completed their tenure, to be entitled to the payments claimed. It is counsel’s argument that under cross-examination, it was clear that all the Claimants were not appointed at the same time, and the failure to lead evidence to show precisely those appointed toward the end of the tenure were not entitled to severance gratuity, and the court cannot descend to the arena and supplant that evidence for them. Similarly, counsel submitted that it does not lie in the Court to start calculating which Claimants have served for minimum of two years to warrant him payment of severance gratuity based on pro-rata. More so, counsel argued that the court cannot grant the Claimants’ payments on pro-rata since the Claimants did not ask for it. Counsel further submitted that an action is governed by the law applicable when the cause of action arose. See AWOKE OWATA vs. ANYIGOR (1993) 2 SCNJ 1 at 10. Counsel submitted that the Claimants’ failure to comply with the applicable case in this action, Exhibit C25 is fatal to their case. In the same vein, counsel submitted that the 1st to 13th Claimants are not entitled to accommodation and domestic allowances as the 1st Defendant provided it to them in kind. Counsel urged the court to hold that they are not entitled to these two allowances. Counsel argued that documents tendered in bulk for the purpose of speedy trial does not exclude proper evidence to prop such dormant documents because it is not the court’s duty to make inquiry into a case outside the open court, even by examining documents in evidence. See ACN vs. LAMIDO (2012) All FWLR (Pt. 630) 1316 at 1338-9. Also, counsel submitted that the 10th Claimant for instance is not entitled to be paid severance gratuity because he was appointed on 24th November 2010, towards the end of the tenure. Counsel submitted further that from the totality of evidence, there is nothing to show to the court that the 4th-6th, 8th, 9th, 11th, 14th-19th, 22nd, 25th-29th, 33rd, 34th, 35th, 37th, 39th, 40th, 41st, 43rd, 44th, 46th, 49th and 51st Claimants are entitled to their claims. It is counsel’s contention that the Claimants’ claims are vague because the amount claimed in figures is different from what is claimed in words, and no matter how weak the defence may be, they cannot rely on such weakness to get their claims. Counsel urged the court to dismiss this case because the Claimants have failed to prove their individual and joint cases against the Defendants. In the Claimants’ final address, a sole issue was nominated for determination, thus: Whether from the pleadings and evidence led, the Claimants are entitled to the reliefs sought in this suit. Learned Counsel began arguing this sole issue by referring the court to the cases of ATOLAGBE vs. SHORUN (1985) 1 NWLR (Pt. 2) 360 at 365 and OKAGBUE vs. ROMAINE (1982) 5 SC 133 at 153; both of which enunciated the principle of law that parties are bound by their pleadings and any evidence which is at variance with the averments in the pleadings go to no issue. Flowing from the case law mentioned above, counsel submitted that the Defendants in the extant case are bound by their statement of defence, and any evidence at variance with it ought to be disregarded by the court. On this note, counsel further submitted that the Claimants in paragraphs 2-12 of the statement of facts averred material facts on their relationship with the Defendants and the duration of the relationship and the Defendants in paragraph 1 of the statement of defence admitted paragraphs 1-10 of the statement of facts. It is the argument of counsel that by virtue of Sections 20 and 123 of the Evidence Act, those facts admitted by the Defendants do not need to be proved because such admissions are taken as established and forms part of the agreed facts of this case. Counsel drew the court’s attention to the decision in TAIWO vs. ADEGORO (2011) NWLR (Pt. 1259) 562 at 583-4, where it was held as follows: “Judicial admissions are conclusive that is to say where a party agrees to the fact in issue; it is no longer necessary to prove that fact. In effect, after an admission no further dispute on the fact admitted should be entertained by the court. This is the strongest proof of the fact in issue.” See also the cases of: 1. OKPOSIN vs. ASSAM (2005) 14 NWLR (Pt. 945) 495 at 515-6 2. EGBUNIKE vs. ACB LTD (1995) 2 NWLR (Pt. 375) 34 at 53 3. ARCHIBONG vs. ITA (2004) All FWLR (Pt. 197) 930 Furthermore, counsel contended that the Defendants’ admission of paragraphs 1-10 of the statement of facts makes all the material facts averred in them established, and any evidence the Defendants leads against these facts go to no issue and should be disregarded by the court. It is counsel’s further contention that the above submissions apply to paragraphs 13 and 14 of the statement of facts which was admitted in paragraph 4 of the statement of defence. Also, counsel submitted that the Defendants’ response to paragraphs 11, 12 and 15 of the statement of facts in paragraphs 3 and 5 of the statement of defence, did not specifically and properly traverse averments to raise facts in issue. Counsel further submitted that every allegation of fact not specifically denied or traversed shall be taken as established and the Claimant is not obliged to establish it by evidence. See AKINTOLA vs. SOLANO (1986) 2 NWLR (Pt. 24) 598 at 620 and BAMGBESIN vs. ORIARE (2009) 13 NWLR (Pt. 1158) 370 at 394-5. Similarly, counsel argued that paragraphs 3 and 5 of the statement of defence which made bare and evasive denials are not proper and sufficient denial of the positive and distinctive allegations in paragraphs 11, 12 and 15 of the statement of facts; thus these allegations are taken as established. TAIWO vs. ADEGORO (supra). Again, counsel submitted that during the cross-examination of CW1, the Defence Counsel attempted to raise issues previously admitted by the Defendants. It is counsel’s submission that the Defendants are required to be consistent in their pleadings and in proving it, and not approbate and reprobate. See AJIDE vs. KELANI (1985) 3 NWLR (Pt. 12) 248 at 269. In the same vein, counsel argued that any evidence elicited by the Defendants during CW1’s cross-examination, which is inconsistent with admitted facts in the statement of defence is irrelevant, goes to no issue and ought to be disregarded by the court. See CHUKWU vs. AKPELU (2014) 13 NWLR (Pt. 1424) 364. Counsel further argued that in spite of the Defendants’ admissions of the facts pleaded by the Claimant, CW1 gave evidence in line with the statement of facts and tendered in evidence, documents which included the appointment letters of some of the Claimants showing the terms and conditions of service that was corroborated by DW1. It is counsel’s argument that Exhibits C25 and C26 contain the fixed salaries and severance gratuities, in tandem with the salaries and severance gratuities pleaded by the Claimants in paragraphs 15, 16, and 17 of the statement of facts. Also, Counsel submitted that Exhibit C27 was a circular issued by the 1st Defendant domesticating in Imo State, the remuneration fixed by Exhibits C25 and C26; and the Defendants cannot resile from the obligations in Exhibits C25 and C26 that they are constitutionally bound to enforce and implement. Again, counsel submitted that the Defendants averred in paragraph 6 of the statement of defence that they had paid their employees April and May 2011 salaries but failed to plead the time and manner the payments were made or any evidence that the claimants were paid. Further, counsel submitted that by Section 138 of the Evidence Act, the burden of proof is on the Defendants to show that the Claimants’ claim for unpaid salaries has been satisfied by the Claimant. It is counsel’s submission that the Defendants did not present to this court, proof of payment of salaries because DW1 admitted that he did not have records of the April and May 2011 salaries to the Claimants. Counsel argued that a situation similar to the one in this extant case arose in OHAKIM vs. IMO STATE GOVERNMENT & ORS SUIT NO: NICN/OW/59/2014 delivered on 24/5/2016, where this court held inter alia: “Once the Claimant avers that he has not been paid, the burden is on the Defendant to prove that the Claimant received the monies. Since there is nothing before this court to show proof that the said salaries and severance gratuity were paid, or that the Claimant received payment of the said salaries and severance gratuity from the Defendant, it is my view that merely stating that the Claimant was paid does not discharge the Defendant’s burden of proving that such payment was made.” From the pleadings and evidence tendered in this suit, counsel urged the court to hold that the Claimants established their case and enter judgment in favour of the Claimants as per the reliefs sought in paragraph 22 of the statement of facts. COURT’s DECISION Having heard the submissions of the learned counsel’s to the parties contained in their final written addresses, let me now determine the claim of the Claimants by first examining the facts and evidence adduced in this case by the parties. CW1 is the 48th claimant. It is stated in his deposition that he has the authority of the other Claimants to testify on their behalf. He narrated the facts of the Claimants’ case as follows: The 2nd Defendant, who had power to appoint Commissioners, Special Advisers, Assistants and Aides, made the following appointments: The 1st to 10th and 12th Claimants were appointed as Commissioners in the Imo State Government. They held that office until May 2011. The 11th Claimant was appointed a Special Adviser to the Government of Imo State in August 2007 and in January 2011; he was appointed the Secretary to the Imo State Government. He held this latter position till May 2011. The 13th to 28th Claimants were appointed Special Advisers to the Governor and they held their positions till May 2011. The 29th to 51st claimants were appointed Senior Special Assistants to the Governor of Imo State and they held the positions till May 2011. The letters of appointment of some of the Claimants are those admitted in evidence as Exhibits C1 to C22. CW1 stated further that the Claimants served in the 1st Defendant Government in their various positions from August 2007 to May 2011. In February 2007, the Revenue Mobilization Allocation and Fiscal Commission, in exercise of its constitutional duty, determined the remuneration appropriate for political office holders in Nigeria. This was contained in some memoranda/circulars fixing the remuneration package for Political and Judicial Office holders and an addendum made in March 2007. Based on this determination by the Revenue Mobilization Allocation and Fiscal Commission, the 2nd Defendant on 23/5/2007, approved a Revised Package Remuneration for Political, Public and Judicial Office Holders in Imo State. CW1 referred to the letter from the Secretary to the State Government dated 23/5/2007 conveying the approval. By virtue of their offices and the documents referred to, the Claimants were entitled to be paid monthly salaries and severance gratuities which is 300% of their respective annual basic salaries. The Claimants were unfortunately not paid their salaries for April and May 2011 and severance gratuities in the total sum of N255,588,382.82. CW1 went on to group the Claimants into their positions of Commissioners, Special Advisers and Senior Special Assistants and gave a breakdown of what is due to each of the claimants under the heads of April/May 2011 salaries and Severance gratuities. The cumulative sum of N255,588,382.82 was arrived at as the unpaid April/May 2011 salaries and Severance Gratuities for all the Claimants. CW1 said despite repeated demands, the Defendants refused to pay the debt. In the 3rd Defendant’s reply to the demand letter of the Claimants’ solicitor, it pleaded to be given time to look into the matter but the Claimants were constrained to commence this action after waiting for weeks without any response from the Defendants. DW1 who gave evidence on behalf of the Defendants said he is a Deputy Director, Planning, Research and Statistics in the Imo State Ministry of Finance. In his witness statement, which deposition incorporated the exact averments in the Defendants’ Statement of Defence, DW1 stated thus: The averments in paragraphs 1 to 10 of the Claimants’ Statement of Facts is admitted; the Claimants had a four year tenure to serve in the administration of the former Governor of the State; denied paragraphs 11 and 12 of the Statement of Facts; admitted paragraphs 13 and 14 of the Statement of Facts but stated that RMAFC remuneration package did not categorically or automatically grant payment of severance gratuity to the Claimants and denied paragraphs 15, 16, 17, 18, 19, 20, 21 and 22 and stated that the 1st Defendant had paid all her employees salary for the month of April and May 2011. I do not think the fact that the Claimants held offices of Commissioners, Special Advisers and Senior Special Assistants in the Government of Imo State between 2007 and 2011 is in dispute. Although the Defendants, in paragraph 3 of their defence denied these facts, DW1 had however cleared this fact in his evidence when he said the Claimants had a four year tenure to serve in the administration of the former Governor of the state and under cross examination, he told the court that the Claimants were appointees of Chief Ikedi Ohakim who was Governor of Imo State between 2007 and 2011; and while some Claimants were Commissioners, some were Special Advisers and some were Senior Special Assistants. The simple issue in this matter, as I see it, is whether the Claimants are entitled to their claim for salary for April and May 2011 and severance gratuities which they sought in this suit. The Defendants, in paragraphs 1 and 4 of their statement of defence, admitted the Claimants’ averments in paragraphs 13 and 14 of the Statement of Facts. These averments of the Claimants admitted by the Defendants are the facts that the Revenue Mobilization Allocation and Fiscal Commission determined the remuneration appropriate for political office holders in Nigeria in February 2007 and an addendum in March 2007. Based on the remuneration package fixed by Revenue Mobilization Allocation and Fiscal Commission, the 1st Defendant approved a revised remuneration package for political, public and judicial office holders in Imo State on 23/5/2007. These facts are therefore taken as established. See Sections 123 of the Evidence Act 2011. See also TAIWO vs. ADEGORO (2011) NWLR (Pt. 1259) 562. The 48th Claimant has told this court in this evidence that by virtue of the Claimants’ appointments, the circular from the Revenue Mobilization Allocation and Fiscal Commission and the approved Revised Remuneration Package of the 1st Defendant, the Claimants were entitled to be paid monthly salaries and severance gratuities. But the Claimants were not paid their salaries for April and May 2011. CW1 also stated the amount of salaries due to each of the Claimant for the two months. The Defendant denied this allegation and averred that the 1st Defendant has paid the salaries of all her employees for the months of April and May 2011. The Defendants are, by this averment, not denying that the Claimants were entitled to salaries for April and May 2011. What the Defendants appear to say is that the Claimants have been paid their salaries for April and May 2011. When the Defendants alleged that the Claimants have been paid their April and May 2011 salaries, one would expect that the Defendants will be eager to produce evidence of the payment of the Claimants’ said salaries. The Claimants’ allegation that they have not been paid the salaries effectively shifted the burden to the Defendants to prove otherwise. The Defendants being the paying authority should have evidence of payments to the Claimants. Surprisingly, the Defendants failed to supply this court with any tangible proof of the payment of the Claimants’ salaries for April and May 2011. Under cross examination, DW1 told the court that payments made by Government are usually recorded but he does not have the record of payment of April and May 2011 salary to the Claimants. Let me mention that DW1 is a Deputy Director in the Imo State Ministry of Finance. If there is any record of payment of April and May 2011 salary to the Claimants, there is no person more strategically positioned to have it than him. Nothing has been presented before this court to show that the Claimants were paid the salaries for April and May 2011. The amounts stated by the Claimants as their individual salaries for the two months in question have also not been disproved by the Defendants. In the result, I find that the Claimants have proved their claim for the two months unpaid salaries. The Claimants have based their claim for severance gratuity on the provisions of Exhibits C25 and C26. These are the circular of the Revenue Mobilization Allocation and Fiscal Commission of February 2007 on remuneration package for political, public and judicial officer holders and the Imo State Government circular dated 23/5/2007 approving the Revised Remuneration Package for Political, Public and Judicial Office Holders in the state. I have read this documents and I observe that they provide for the salaries and allowances payable to political, public and judicial officers. The allowances include severance gratuity for such offices as were occupied by the Claimants calculated at 300% of annual basic salary. The Defendants did aver in their Statement of Defence that the Revenue Mobilization Allocation and Fiscal Commission remuneration package did not categorically or automatically grant payment of severance gratuity to the Claimants. I cannot find any feature in those circulars at all to lend credence to the Defendants’ contention. I find also that the Claimants have proved that they are entitled to severance gratuity. The sums each of the Claimants has stated as severance gratuity have not also been challenged by the Defendants. No reason has been given to this court to review the sums. In the written address of the Defendants’ counsel he urged the court to dismiss the Claimants claim because CW1 cannot represent the Claimants. Counsel argued that the criteria for representative action have not been met by the Claimants. Let me point out to counsel that this suit is not a representative suit nor was it commenced as one. There are 51 Claimants whose names have been copiously stated in all the processes. Now, the fact that only CW1 testified for the Claimants does not translate him as representing the Claimants or the suit into a representative suit. The Claimants also have a right to call any person as a witness, whether the witness is a Claimant or not. What matters is the quality of evidence given by that witness. I find no reason to uphold this contention of the Defendants, especially in view of the provision of Section 14 of the National Industrial Court Act 2006 which encourages avoidance of multiplicity of legal proceedings. On the whole, I find that the Claimants have proved their claims against the Defendants. The sums each of the Claimants’ claim against the Defendants are accordingly granted. The Defendants are hereby ordered to pay the total sum of N255,588,382.82 (Two Hundred and Fifty-Five Million, Five Hundred and Eighty-Eight Thousand, Three Hundred and Eighty Two Naira, Eighty Two Kobo) to the Claimants. The Claimants have also claimed interest at the rate of 10% from the date of judgment until the judgment debt is liquidated. This court has the discretion in Order 21 Rule 4 of the NIC Rules 2007, to order interest at a rate not less than 10% per annum to be paid upon any judgment sum. I am inclined to exercise that discretion in favour of the Claimants. Accordingly, I direct the Defendants to pay the above sum to the Claimants within 30 days from the date of this judgment after which it shall attract interest at the rate of 10% per annum until it is finally paid. Cost of N200,000.00 (Two Hundred Thousand Naira) only, is also awarded in favour of the Claimants. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Judge