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The Claimant brought this action by way of a Complaint dated 28th of December 2011 and filed on 23rd of January, 2012 and by an amended Statement of Facts he prayed for the following reliefs against the Defendants: (a) A declaration that the claimant is entitled to arrears of his monthly salary and monthly overheads from March 2010 — May 2011, furniture allowance and severance allowance, the suspension placed on him by the 1st Defendant on 22/2/2010 having lapsed by the operation of law on the 24/2/2010. (b) Arrears of monthly salary at N512,881.84 per month from March 2010 to May, 2011 - N7,693,272.60k (c). Furniture allowance - N4,011,675.00 (d). Severance allowance - N4,011,675.00 (e). Monthly overhead at N700, 000.00 per month from March 2010 to May 2011- N10,500.00 Total Claim - N26,216,622.60 The Complaint was accompanied with Statement of Facts, list of witnesses, and list and copies of documents to be relied upon at trial. With the leave of Court the Defendants entered appearance and filed an amended statement of Defence dated the 19/7/2012 and filed on 24/7/2012 in reaction to the claimant’s amended Statement of facts. The case went to trial. The claimant in proof of his case adopted and relied on his written statement on oath and tendered some exhibits. The Defendants in proof of their case called three witnesses who adopted and relied on their statements on oaths and tendered some exhibits. Learned counsel for the parties filed and adopted their respective final written addresses. The Defendants final written address was dated 14th day of December 2012 but filed on 18th December 2012, while that of the Claimant’s counsel was dated and filed on the 30th January, 2013. The defendants counsel did not file any reply on points of law. Learned counsel for the defendants formulated the following issues for the determination of the Court: 1. Whether the suspension on 22/2/10 of the Claimant and lifting of same of the claimant on 20/12/2012 was done in accordance with the law. 2. Whether the claimant having not worked or performed his legislative duties with the 1st Defendant from 22/2/2010 till 30/5/2010 is entitled to any arrears of salaries. 3. Whether the claimant is entitled to overhead allowance, furniture allowance, severance allowance having abandoned his legislative duties. Arguing the first issue, which is whether the lifting of the claimant’s suspension on 20/12/2010 was done in accordance with the law, counsel submitted that the suspension of the claimant on 22/2/2010 and the lifting of same on 20/12/2010 was done in accordance with the provisions of the law. That Section 103(1) of the 1999 Constitution empowers the 1st Defendant to set up committees and pass resolutions. The said S.103 states as follows: A House of Assembly may appoint a committee of its members for any special or general purpose as in its opinion would be better regulated and managed by means of such a committee and may by resolution, regulation or otherwise as it thinks fit delegate any functions exercisable by it to any such committee. According to counsel, from the votes and proceedings of 22/2/2010, there was a petition for the impeachment of the Speaker and the Deputy Speaker (the Claimant) following allegations of impropriety and use of offensive weapons on members by the claimant and others which led to the setting up of a committee to investigate the allegations contained in the petition and the use of offensive weapon by the claimant. Counsel submitted that in accordance with accepted norms and practice in the public service, the claimant being under investigation, was placed on suspension by a resolution of the 1st Defendant to enhance a proper investigation of the case as the claimant cannot be a judge over his matter. That the 1st Defendant derived its authority to investigate the Claimant from S.103[1] of the 1999 Constitution and the nature of the investigation was such that required the Claimant to be put on suspension. He submitted further that S103[1] of the Constitution did not limit the period of any such investigation afortiori the suspension of the claimant. Counsel then posited that the claimant’s suspension was not done in accordance with the provisions of S.31 of the legislative Houses [power and privileges] laws of Bendel State 1976 as applicable to Edo State which makes no provision for investigation. That the constitution being the grundnorm is superior to the Laws of Bendel State. He referred to the cases of Speaker K.S.H.A. VS ADEGBE (2010) 10 NWLR PT 1201 PARAG. 45 at 50—51 ratios 2,4 and 5. EL-RUFAI VS HOUSE OF REPRERSENTATIVES (2003) F.W.L.R. (PT.173) page 1652 at 1700. Counsel then urged the court to hold that the suspension and the lifting of same on 20/12/2010 were done in accordance with the law. On the second issue, which is whether the claimant having not worked or performed his legislative duties with the 1st Defendant from 22/2/2010 to 30/5/2010 is entitled to any arrears of salary, counsel submitted that salary is paid for work done. That it is evident from the totality of the evidence before Court that when the suspension was lifted by the 1st Defendant on 20/12/2010, the claimant failed and/or refused to return to work. The Defence was able to establish through the credible evidence of DW2 and DW3 that the claimant was never at the premises of the 1st Defendant and was never prevented from entering. He urged the Court to believe the evidence of the Defence witnesses which was not controverted. Continuing counsel stated that assuming without conceding that the claimant’s suspension lapsed on 24/2/2010 by operation of law, the evidence before the Court clearly shows that he never resumed his legislative duties with the 1st Defendant after 24/2/2010 when the suspension allegedly expired by operation of law. He submitted that the bare assertion that he attempted to resume on the 13th day of April, 2010 but was prevented is not substantiated. Learned Defendants’ counsel urged the Court to disbelieve his evidence and believe the evidence of DW2 and DW3 who both stated emphatically that claimant never came to the premises of the 1st Defendant. He submitted further that the claimant could not have entered the chambers of the 1st Defendant and was prevented by the Sgt. at Arms, when he could not have passed through either of the gates manned by DW2 or DW3. He urged the Court to disbelieve the claimant that he was prevented by the Sgt at Arms since the Sgt-At-Arms is only within the chambers during the House plenary. Counsel referred the Court to Rule 11 of the Rules of Edo State House of Assembly, as amended. He submit further that the claimant had the duty to call the Sgt-At-Arms as a witness to substantiate his assertion more so as the Sgt-At-Arms was no more a worker with the 1st Defendant and had nothing to fear since he was allegedly dismissed by the 1st Defendant as alleged by the Claimant. That the failure of the claimant to call the Sgt-At-Arms to give evidence in rebuttal of DW2 and Dw3’s testimony gives credence to DW2 and DW3 testimony that he was never at the premises of the 1st Defendant. He urged the Court to so hold. He also referred to S.167(d) of the Evidence Act 2011 (as amended). That the Court of Appeal in the case of SHOBANKE VS SAKI (2006) AFWLR (Pt 292) page 131 at 140 — 141 paragraphs F-A, held as follows: S.149(d) of the Evidence Act Cap 112 Laws of the Federation of Nigeria, 1990 provides that the Court presumes that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it. In the instant case, failure by the Appellant to call his agent to give evidence in rebuttal of 1st Defendant’s testimony that exhibit X and other documents were sent to him (appellant) through the agent was fatal to his case. (pp.140 -141) paras. F-A. Counsel submitted that even the Claimant’s driver who would have allegedly driven him to the premises of the 1st Defendant (being an Honourable member who is chaffeaur driven) was not called. Therefore, there is no credible evidence before the Court from the claimant that indeed, he was prevented by the 1st Defendant from resuming after the alleged expiration of the suspension by operation of law (without conceding) or by the 1st Defendant. That worse still is claimant’s admission under cross examination that he never reported the alleged prevention to the police nor did he challenge it in a Court of Law. He submitted that the attempt by Claimant’s Counsel to cross examine DW1 to the effect that even if the Claimant had resumed that he would not have been allowed into the premises of the 1st Defendant gives credence to the fact that indeed the Claimant did not resume on the assumption that he would not be allowed in. He submitted that the question is: was he at the premises of the 1st Defendant and was prevented from entering? Counsel submitted that the answer is in the negative and the only deduction from the totality of evidence before Court is that claimant did not resume believing that he would not be allowed into the premises of the 1st Defendant and was never prevented. That the Court is only bound by admissible evidence before it and cannot resort to evaluation of presumptions. That the conjectures of counsel cannot take the place of evidence. Counsel added that the burden of proof that he was prevented lies on the claimant, moreso when the Defence has called sufficient evidence to show that he was not prevented. That in the case of OBURU V IRA (2002) 10 NWLR (PT. 775), 297 at 300 ratio 1, the Court held as follows: In a civil case, the Plaintiff must rely on the strength of his pleadings and cannot depart from it. This is because the party who bears the onus of proof is the one whose case will fail if he did not satisfy the Court. He then urged the Court to hold that the claimant having failed to discharge the burden that he was indeed prevented from working, he was never at the premises of the 1st Defendant even after the alleged expiration of the suspension by operation of law. He therefore submitted that the claimant having not performed his legislative duties after the alleged expiration of the suspensin on 24/2/2010 or on 20/12/2010, when it was lifted by the 1st Defendant is not entitled to any arrears of salary. Also by S.32(2) of the legislative Houses (Powers and privileged) Laws Cap 87 Laws of Defunct Bendel State 1976 Vol. 4 as applicable to Edo State, the claimant is not entitled to any salary while on suspension. It states as follows: No salary or allowance payable to a member of the House for service as such shall be paid in respect of any period during which he is suspended from the service of the House under the provisions of the Section. Counsel urged the Court to dismiss the claim for arrears of salary the Claimant having not worked for it. On whether the claimant is entitled to overhead allowance, furniture allowance and severance allowance having abandoned his legislative duties, learned counsel submitted that the claimant is not entitled to any overhead allowance. That overhead allowance is not one of the allowances he is entitled to under the remuneration package for legislators. That it is an allowance allowed by the 1st Defendant to its deserving members who sit, as a running cost for their chambers in the 1st Defendant which is retired. It is not an entitlement or part of his remuneration. That the fact that other legislators were given does not in anyway entitle the claimant to it as it is not a right but a discretion exercised by the 1st Defendant. Moreover, the other legislators who were given were those who attended sittings of the House and performed their legislative duties. The claimant’s assertion that he incurred expenses in the running of his constituency has no place in his pleadings as they were not specifically pleaded nor strictly proved in the evidence and as such go to no issue. Counsel urged the Court to so hold, citing ALHAJI OTARU & SONS LTD V IDRIS (1999) 6 NWLR PT. 606 AND 330. On the issue of furniture allowance, he submitted that the claimant is not owed any furniture allowance as he was quartered in a furnished apartment as a Deputy Speaker and was at liberty to move into another furnished apartment for legislators when he ceased to be Deputy Speaker but rather chose to vacate the legislative quarters of his own volition. Remuneration package for political office holders provides that officers who are accommodated in furnished apartment are not entitled to be paid furniture allowance. The claimant having been accommodated is not entitled to any furniture allowance as he left the accommodation of his own volition. On the issue of severance allowance, counsel submitted that the claimant is not entitled to severance allowance having not successfully completed his tenure nor did he disengage honourably. From the totality of evidence before Court, the claimant abandoned his legislative duties and so cannot be said to have disengaged honourably. He urged the Court to so hold. In conclusion, it is learned Defendant Counsel’s submission that the claimant is not entitled to the arrears of salaries, furniture allowance, overhead allowance and severance as per his claims. He then urged the Court to dismiss the suit as the Claimant has failed to prove his case on preponderance of evidence. In his own written address the Claimant’s counsel after reproducing the reliefs of the claimant and a brief summary of the facts of the case, formulated the ollowing issues for the Court’s determination: 1. Whether the suspension placed on the Claimant on the 22/2/2010 by the 1st Defendant expired by operation of the law on the 24/2/2010? 2. Whether it was lawful for the 1st Defendant to continue to prevent the Claimant from sitting between 24/2/2010 and 31/5/2011 when the 1st Defendant held its last sitting. 3. Whether the Claimant is entitled to his salaries and allowance and other remuneration due to him as a member of the Defendant for the period he was unlawfully prevented from sitting? Arguing the 1st issue, learned counsel stated that the Claimant was elected a member of the Edo State House of Assembly to represent Ovia North East Constituency 1 following the General Election in Nigeria in 2007 and was consequently sworn in as a member of the Edo State House of Assembly on the 5/6/2007. The Claimant was elected for four years. On the 22/2/010, there was a violent change of leadership in the House. On same day the 1st Defendant also suspended the Claimant along with others from the sitting of the House. The 1st Defendant sat on the 24/2/2010 and conducted several other sittings till the tenure of the House expired on the 4/6/2011. The Claimant was prevented from sitting on the ground that his suspension was indefinite. The 1st Defendant purportedly lifted the suspension on the 20/12/2010 with several conditions attached which the Claimant could not meet until the period for which the Claimant was elected lapsed. According to counsel the seat of the Claimant was not declared vacant. The 1st Defendant in its votes and proceedings continued to list the Claimant as a member of the 1st Defendant. The Claimant as a public officer was estopped by the Constitution from engaging in any other form of business during the period for which he was elected. The Claimant has now approached this court for arrears of salaries and other entitlement due to him as a member of the House for the period he was prevented from sitting. It is not possible to claim for a reinstatement because the period for which the Claimant was elected has expired. Arguing the first issue, counsel submitted that the suspension placed on the Claimant by the 1st Defendant effectively expired on 24/2/2010. The extant law regulating the conduct and procedure of the 1st Defendant is Legislative Houses (Power and Privileges) Law CAP 87 Laws of Bendel State 1976 and now applicable to Edo State. It is the aforesaid law that empowered the 1st Defendant to discipline any of its members by way of suspension and it is under the said law that the 1st Defendant derived the power to suspend the Claimant in this case. The said law also provided for the duration which such suspension can remain. The 1st Defendant took advantage of the said provision of the law to suspend the Claimant but ignored the provision of the same law that provided for when the suspension lapses. The relevant section of the law is reproduced herein under: 31.(1) Subject to the provisions of this section, the punishment which may be imposed by the House for an offence under this part shall be the administration by the President or the Speaker of a reprimand at the Bar of the House or removal from the precints of the House or both. (2) In the case of an offence committed by member of the House, the House may, in addition to or instead of any punishment specified in subsection (1) of this section, order his suspension from the service of the House for such period as it may determine: Provided that such period shall not extend beyond the last day of the meeting next following that in which the order is passed, or of the session in which the order is passed, whichever shall first occur. (3) In the case of an offence committed by a person who is not a member, the House may in addition to the punishment specified in subsection (1) of this section, order that such person shall be prohibited from entering the House or its precints for a period not exceeding six months. 32. (1) A member of the House who has been suspended from the service of the House shall not enter or remain within the Chamber or precints of the House while such suspension remains in force, and, if any member is found within the Chamber or precints of the House in contravention of this section, he may be forcibly removed therefrom by any officer of the House and no proceedings shall lie in any court against such officer in respect of such period. (2) No salary or allowance payable to a member of the House for his service as such shall be paid in respect of any period during which he is suspended from the service of the provisions of this section. That, from the above it is clear that by virtue of the proviso to S. 31(2), any suspension order placed on a member of the House by the 1st Defendant automatically lapses by the next sitting of the House, or at the end of the session of the House in which the member is suspended, whichever one occurs first. For emphasis, the proviso is reproduced hereinafter: “Provided that such period shall not extend beyond the last day of the meeting next following that in which the order was passed, or of the session in which the order is passed, whichever shall first occur”. There is evidence before court both oral and documentary by both the Claimant and the Defendants to wit: that the Claimant was suspended by the 1st Defendant on 22/2/2010 and also that the 1st Defendant after the suspension sat on 24/2/2010. The votes and proceedings of the 1st Defendant of 22/2/2010 is Exhibit “A” and that of 24/2/2010 is Exhibit “B”. Counsel therefore submitted that there is no dispute as to whether or not the 1st Defendant sat on the 24/2/2010 after the suspension of the Claimant. It must be noted that there is uncontroverted evidence that the session of the house in which the Claimant was suspended commenced on the 5/6/2009 and ended on the 4/6/2010; See paragraph 11 of the Claimant’s Statement on Oath. The word used in the proviso reproduced above is “Shall”. The use of the word “Shall” is mandatory. It therefore means that any suspension placed on a member of the House must lapse at the next sitting of the House. The Speaker of the House or indeed the House has no option in the matter. A recall of such suspended member by the Speaker or the House is unnecessary. It is also unnecessary for the affected member to go to court to seek a declaration that such suspension has lapsed before he should be admitted back to the House. According to counsel, interpreting S. 103(1) (f) of the 1999 Constitution of the Federal Republic of Nigeria which provides for the vacancy of the seat of a member of the House of Assembly by operation of law, the Supreme Court in the case of M. 0. Oloyo Vs. Alegbe (1962 — 2011) Vol 1 LLRN, P.33 7, per Kayode Esho JSC held at P.354, Para 40 The word “shall” used in the section must therefore be imperative and not directive. It means ‘must’ and it gives the member who is affected by the provision no choice of decision. In other words, once any of the events happens, such member no longer has any decision to make. His tenure of office have become automatically at an end. It ceases by operation of law and it does not require any further action in the matter. In the case of Oloyo Vs. Alegbe (Supra) the issue before court was interpretation of S.103 (1) (f) of 1979 Constitution which provided as follows: A member of the House of Assembly shall vacate his seat in the House if: (a) ..................... (b) ………......... (c)……………... (d)……………… (e)………………. (f) Without just cause is absent from meetings of the House of Assembly for a period amounting in the aggregate to more that one-third of the total number of days during which the House meet in one year. The question before the court in the case is whether the House of Assembly or the Speaker or any Presiding Officer can tell the member who had absented himself from the meetings of the House that by operation of the provision of S. 103 (1) (f) of the 1979 Constitution, the seat of the absentee member has now become vacant, therefore the absentee member is no longer a member of the House, or Whether the House or the Speaker shall take the matter to court before telling the member that he has by his action forfeited the seat. The Supreme Court per Kayode Esq. JSC held at P.358, Para 5 as follows: Now, I have already held that where an event has happened whereby the seat of a member of a Legislative House has become vacant, the member has no longer a decision to make in the matter as to whether to quit or not. His seat is already vacant. Equally, it does not admit of any further determination by the Speaker as there is nothing for him to determine. Again the seat having become vacant by operation of law, there is nothing further for anyone to do to make the seat vacant under section 103 (1) of the Constitution. That in the instant case, the Claimant was suspended on 22/2/2010, see Exhibit “A”, and the House sat on 24/2/20 10, see Exhibit “B”. The law that empowers the House to suspend the Claimant also provides that the suspension shall lapse at the next sitting of the House, or at the end of the session of the that year, whichever comes first, and in the instant case, the sitting of the House came up first on 24/2/2010. Counsel therefore submitted that the suspension of the Claimant lapsed by operation of law on 24/2/2010. Following the reasoning of the SC in Oloyo Vs. Alegbe (Supra) neither the Defendant nor the Speaker had a discretion in the matter. The Suspension of the Claimant lapsed automatically. The Claimant need not go to court to seek a declaration that his suspension has lapsed. On the second issue, counsel submitted that the Defendant has no power to suspend the Claimant beyond the period prescribed by the law that gave power to suspend a member. Any suspension of a member of the House beyond the provision of the law is null and void. That from the foregoing, the Claimant not sitting between 24/2/20 10 and 30/5/2011 was due to the act of the 1st Defendant who erroneously believed that his suspension was indefinite. The argument of the Defendants’ Counsel in her final address that the Claimant was never prevented from sitting is baseless. The DW1 also told court under cross examination that there were conditions attached to the lifting of the suspension of the Claimant on the 20/12/2010 and that the Claimant would not have been allowed into the premises of the 1st Defendant without meeting the conditions. Therefore, counsel submitted, the evidence of the DW2 and DW3 who are security guards in the premises of the 1st Defendant that the Claimant never came to the premises after their suspension is baseless and irrelevant. That in the case of Hon. Dino Malaye & 4 Ors Vs. The Speaker, House of Representatives & 2 Ors unreported Suit No: FHC/ABJ/CS/480/2010, The House of Representatives suspended the Plaintiffs in that case from the House indefinitely whereas Order X Rules 5 (4) of the Rules of the House upon which their suspension was based, provides for 14 days suspension. A. Bello J. sitting in the Federal High Court Abuja in declaring the suspension null and void held as follows: With the above as my backdrop and having found that the initial suspension of the Plaintiff beyond 14 days permitted by order X, Rules 5(4) (Supra) was done in breach of the rules or in excess of the power granted by the Standing Orders and by extension in breach of the constitution which gives the House power to regulate their own procedure, I hold that the initial suspension of the Plaintiff indefinitely beyond 14 days is clearly wrongful, illegal, null and void. Learned counsel submitted that the act of the 1st Defendant in preventing the Claimant from sitting from on the 24/2/2010 becomes clearly illegal and unlawful. The 1st Defendant cannot at the same time claim that the Claimant is not entitled to his salaries and allowances for the period they unlawfully prevented him from sitting on the ground that he did not carry out his legislative duties (i.e. 24/2/2010 to 31/5/2011). The acts of the Defendant in preventing the Claimant from sitting from 24/2/2010 until the last sitting of the House is clearly unlawful in the above circumstances. On the 3rd issue learned counsel submitted that the Claimant in the above circumstances is entitled to his salaries and allowances as a member of the 1st Defendant for the period he was unlawfully prevented from sitting. That from the evidence led, both by the Claimant and the Defendants, the Claimant did not voluntarily withdraw from sitting. The Claimant has given ample evidence in his written deposition that he was prevented from entering the premises of the 1st Defendant and that on one occasion, he gained entrance and the Speaker of the House said that he should be removed from the premises. The DW1 in apparent corroboration of the evidence of the Claimant told court under cross-examination that any member on suspension is not permitted to enter the premises of the Defendant. S. 32(1) of the Legislative Houses (Power and Privileges) Law Cap. 87 Law of Bendel State of Nigeria now Applicable in Edo State provides as follows: A member of the House who has been suspended from the service of the House shall not enter or remain within the chamber or precints of the House while such suspension remains in force, and if any such member is found within the chambers or precints of the House in contravention of the section, he may forcibly be removed therefrom by any officer of the House and no proceeding shall lie in any court against such officer in respect of such removal. That from the foregoing the Claimant not sitting within the period 24/2/2010 to 31/5/2011 was as a result of the illegal act of the 1st Defendant. In the case of SPDC Nig. Ltd. Vs. Emehuru (2007) All FWLR (Pt. 381) 1694 the CA per Dogban Mensen JCA at page 1718 Para “E” while justifying the award of 8 years salary to the Respondent for the period he was unlawfully suspended held as follows: Where an employee is placed on suspension, he is placed on hold, he lives day by day in anticipation of either being recalled or being laid off He is not at liberty to utilize his time elsewhere as he desires. The above case dealt with a master-servant relationship. In the instant case the Claimant is even more in a precarious condition. The Claimant was elected into the Edo State House of Assembly for a period of 4 years, and within that period he is a Public Officer by virtue of the 5th Schedule of the 1999 Constitution of the Federal Republic of Nigeria (as amended) Part 2, Item 3, and as a Public Officer he is prohibited from engaging in any other form of employment during the period. See Part I, Item 2, 5th Schedule of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which provides as follows: Without prejudice to the generality of the foregoing paragraph, a public officer shall not — (a) receive or be paid the emoluments of any public office at the same time as he receives or is paid the emoluments of any other public office; or (b) except where he is not employed on full time basis, engage or participate in the management or running of any private business, profession or trade…….. There is also evidence at trial (Claimant’s Statement on Oath) to the effect that within the period he was prevented from sitting, he continued to carry on other duties of his office which include maintaining his Constituency Office and payment of salaries to the staff employed by him in that office. Counsel continued that if this Honourable Court finds that the suspension of the Claimant by the 1st Defendant from sitting on 22/2/2010 lapsed by operation of law on 24/2/2010, the Claimant is entitled to his salaries and allowances for that period he was unlawfully prevented from sitting and denied salaries and allowances. In the case of Government of Ekiti State Vs. Ojo (2006) All FWLR Pt. 331 Page 1298, pursuant to Ekiti State Local Government Service Commission Law (2000), the Respondents were appointed as Chairman and Members of the Local Government Commission of Ekiti State for initial term of 3 years, with effect from 16/12/2002. On the 2/12/2003 the 1st Appellant dissolved the Commission on same date. Consequently the Respondents were prevented from entering the premises to perform their duties. The Respondents consequently instituted an action claiming reinstatement or in the alternatives payment of their total remuneration due to them up till and including 15/12/2005 when their tenure would have expired, the Court of Appeal per Abdullahi JCA at Page 1325 justifying the grant of alternative relief for total remuneration due to the Respondents for the period they would have been in office held as follows: In the case of Igbe Vs. Government of Bendél State (1993) I SCLR page 73 where, as in this case the Chairman and Members of Civil Service Commission of Bendel State were removed from their offices without compliance with statutory provisions, the Supreme Court awarded damages in lieu of reinstatement because reinstatement was not appropriate in the circumstance. Again in Contract of Employment with statutory flavour. The court will however grant damages as reliefs where there is evidence of situation and circumstances which make it impossible to order reinstatement. In view of the above I am of the firm view that the trial judge exercises his discretion judicially and judiciously and he should be commended for his judicial sagacity in ordering the Appellant/Respondents to pay the alternative claim of damages instead of reinstatement. Learned counsel urged the Court to hold in the instant case that the Claimant is entitled to his salaries and allowances from the date he was unlawfully prevented from sitting and denied salaries and allowances by the Defendants. It is not worthy to state that the seat of the Claimant was neither declared vacant nor was any other person elected to replace him. He represented his Constituency until the tenure of the House expired. That if the Court looks clearly at “Exhibit “C”, it would observe that the Claimant (Rt. Hon. Levis Aigbogun) was listed as a member representing Ovia North East Constituency I. Those whose seats were vacant were so indicated. “Exhibit “C” is the vote and proceedings of the last sitting of the 1st Defendant. RESPONSE TO THE DEFENDANTS’ COUNSEL FINAL ADDRESS 1. The Defendants’ Counsel asserted in his final address that the Claimant is not entitled to overhead allowance because it is not contained in Exhibit “E” (i.e. Reviewed Remuneration Package for Legislature at Federal, States and Local Government Levels Vol. II). Counsel submitted that there is evidence before the court that monthly overhead allowance of N700,000.00 per month is paid by the 1st Defendant to its elected members. The Claimant received the said allowance from the date he was sworn in i.e. 5/6/2007 till February 2010 when he was purportedly suspended. The Defendant also denied him salary for the period. It is not the case of the Defendants that such allowance was not paid to members by the 1st Defendant. He therefore submitted that the argument of the Counsel to the Defendants that the Claimant is not entitled to the allowance because it is not contained in “Exhibit “E” is baseless and goes to no issue. 2. The Defendants’ Counsel also made a heavy whether of the fact that during cross examination, the Claimant stated that he was running his Constituency Office and paying the staff employed therein and this fact the Counsel alleged was not pleaded. Counsel submitted that the fact of the Claimant running his Constituency office and paying staff therein during the period of his purported suspension arose from cross-examination when the Claimant responded to a question put by the Defendants’ counsel:- A Claimant need not plead an answer to a question not expected at the time of filing his case. 3. OBJECTION TO “EXHIBIT “L” “Exhibit “L” is not relevant to this proceeding. It is a purported charge against Claimant dated 3/6/2011. The Claimant told court under cross examination that he was not aware of the existence of the charge. The 1st Defendant concluded its last sitting for the four years period on the 31/5/2011. See Exhibit “C”. Exhibit “L” was purportedly filed on the 3/6/2011 when the period for which the Claimant was elected had lapsed. Counsel submitted therefore that “Exhibit “L” is not relevant to this case. It must be noted that it is not the case of the 1st Defendant that the Claimant is not entitled to his claim because he is standing criminal trial. 4. The Counsel to the Defendant submitted that the Claimant is not entitled to severance allowance or gratuity because he did not successfully complete his tenure in the House. Counsel submitted that if this Honourable Court finds that the purported suspension of the Claimant lapsed by operation of law on the 24/2/2010, then the Claimant is entitled to his severance allowance in full. Even if the court finds otherwise the Claimant is still entitled because he has spent over 2 years in the House before the purported indefinite suspension; See page 38 Item XXI of Exhibit “E” which provides as follows: XXI SEVERANCE GRATUITY This allowance shall be maintained at 300% of the annual basic salary, enjoyable after the successful completion of each tenure. That is, the affected officers would have disengaged honourably, by which is meant that cessation of service must not be due to dismissal or termination of appointment due to proven case of impropriety and or related offences. However, ruling out the foregoing excesses for disengagement, any officer who has served a minimum of 2 years of the period of tenure would be deemed due for payment of severance gratuity on a pro-rata basis. In the instant case, there is no proven case of impropriety and or related offences established against the Claimant before this Honourable Court. Besides the Claimant was sworn in as a member on the 5/6/2007 and was purportedly suspended on the 22/2/2010. Between the 5/6/2007 - 22/2/2010, the Claimant has spent 2 years and 9 months in the House. That the Court would also observe that at page 4 Paragraph 1 of Exhibit “A”, the Claimant and others were “suspended indefinitely as they cannot be judge in their own case”. It is certainly not due to proven case of impropriety and or related offences as anticipated by Exhibit “E”. He therefore submitted that the Claimant is entitled to his severance allowance or gratuity. That the point has been made earlier that the Claimant represented his Constituency in the House until the end of the period he was elected. His seat was neither declared vacant nor was anybody elected to replace him; See Roll Call of members on Page I of Exhibit “C”. That the DW1, the Clerk of the 1st Defendant under cross examination stated the grounds upon which an elected member of the 1st Defendant can cease to be a member and stated clearly that none of the events happened in the case of the Claimant. In the above circumstances Counsel urged the Court to grant the relief sought. Continuing, counsel stated that the Counsel to the Defendants also submitted that the Claimant is not entitled to furniture allowance because he had a furnished apartment. It would appear that the Counsel closed eyes to evidence led on the issue. That the Claimant’s evidence on the issue is that as the Deputy Speaker of the 1st Defendant he was entitled to a furnished apartment and therefore was not given furniture allowance when his colleagues were given but on ceasing to be Deputy Speaker, he became entitled. He said he was forcefully evicted from the Deputy Speaker’s apartment. See paragraphs 8, 9, 10, 18, 19, 20 and 21 of the Claimant’s Statement on Oath. The DW1 under cross-examination said that the Claimant on ceasing to be Deputy Speaker relinquished the Deputy Speaker’s apartment for the new Deputy Speaker. This is a distinction without a deference. The bottom line of the evidence of the Claimant and that of the DW1 is to the effect that on being removed as Deputy Speaker on the 22/2/2010, the Claimant becomes an ordinary member of the House who is no longer entitled to a furnished apartment. That it is at this point the Claimant becomes entitled to furniture allowance like every other member. The DW1 under cross-examination told court that furniture allowance could be paid to a member at any time before the end of his tenure and that it must not be paid at the beginning of the tenure neither is it tied to the fact that a member must have served the four year tenure. OBJECTION TO EXHIBIT “F” Exhibit “F” is the Rules of the 1st Defendant. The said Exhibit “F” was approved for publication 10/5/2011 after all the events leading to this case had happened. The Claimant also told court that Exhibit “F” was not Rules applicable to him for the 4 years he was elected. Most importantly, Rules of the 1st Defendant was the first Casualty on the 22/2/2010. Before members of the 1st Defendant proceeded to suspend the Claimant and others, they first suspended the Rules of the House; See paragraph 2 of page 3 of Exhibit “A” (Votes and Proceedings of the 1st Defendant on the 22/2/2010). Same is reproduced hereunder: Motion made and question proposed that the Rules of the House be suspended to enable the House proceed with deliberation: Hon. Ohonbamu Paul (Egor). Debate arising Question put and agreed to Resolved in the Affirmative From the foregoing, counsel submitted that the Rules of the 1st Defendant is irrelevant to this proceeding same having been suspended before the Claimant was suspended. Any reference to the Rules of the Defendant in this proceeding is made in vain. The provision of S.103 (1) of the 1999 Constitution is irrelevant to this case. The Section deals with the power of a House of Assembly to set up Committees and delegate function to such Committees. The suit is not challenging the action of any Committee of the House nor the power of the House to set up Committees. There is nothing in S.103 (1) of the 1999 Constitution which empowers the Defendant to suspend the Claimant indefinitely. Counsel submitted therefore that reference to S.103 (1) of the 1999 Constitution by the Defendants’ counsel in their final address is in vain. The Defendants’ counsel argued that the Bendel State Legislative House (Powers and Privileges) Law Cap 87, Laws of Bendel State 1976 applicable to Edo State does not guide the 1st Defendant’s action, but nevertheless somersaulted when he relied on same to justify why the Claimant should not be paid his salaries and allowances. That the counsel quote part of the law which stated that a member on suspension is not entitled to salaries and allowances but ignored the section which states when such suspension must lapse. Counsel for the Claimant submitted that the 1st Defendant having suspended its Rules before suspending the Claimant, the only extant law left to govern its activities as it relates to the Claimant is the Bendel State Legislative Houses (Powers and Privileges) Law Cap 87 of 1976. He urged the Court to disregard the argument of the Defendants on this issue. CONCLUSION Finally learned counsel urged this Honourable Court to grant all the reliefs sought by the Claimant, the Claimant having proved his case on preponderance of evidence. There was no reply on points of law by the defendants. The facts of the case briefly put are that the Claimant was elected a member of the Edo State House of Assembly to represent Ovie North Constituency I following the General Election in 2007. He was sworn in as such for a term of four years on 5/6/2007. He was also elected the Deputy Speaker of the House. Then on 22/2/2010 there was a change in the leadership of the House of Assembly and the claimant along with others was suspended. After the Claimant’s suspension the 1st Defendant continued to sit until its tenure expired on 4/6/2011. The Claimant has alleged that he was prevented from continuing to sit in the 1st defendant after the 24th day of February 2010 up until the tenure of the House expired. The Defendants on the other hand maintained that the suspension on the claimant was lifted validly on the 20th of December 2010 but the claimant refused to resume sitting. The claimant has now come to court to claim for arrears of his salary, furniture allowance, severance allowance and overhead costs. I have carefully considered the processes, evidence, arguments and submissions of the parties in this case. The issues for determination in this case are: 1. Whether the Claimant’s suspension on 22nd day of February 2010 terminated by operation of law on 24th of February 2010 or on 20th of December 2010 by the Resolution of the 1st Defendant? 2. Whether or not the Defendants prevented the Claimant from sitting in the House between 24/2/2010 and 31/5/2011 when the 1st Defendant held its last sitting? 3. Whether the Claimant is entitled to his salaries and allowances and other remuneration due to him as a member of the 1st Defendant for any period after the suspension of 22nd of February, 2010 up to the end of the last sitting of the House on 21st of May, 2011? On the first issue, the case of the claimant is that he was suspended by a Resolution of the 1st Defendant on the 22/02/2010. The defendants in their joint Statement of defence are agreed with the claimant on this. Thus there is no dispute on the suspension itself of 22/02/2010. The point of divergence is on when the said suspension came to an end. Here while the claimant insists that his suspension expired by operation of law in accordance with the provisions of the Legislative Houses (Power and Privileges) Law Cap 87 Laws of Bendel State 1976 applicable to Edo State, the defendants maintain that the suspension of the claimant was only terminated following the Resolution of the 1st Defendant passed on the 20th of December, 2010. The relevant sections of the law are Sections 31 and 32 of the said Legislative Houses (Powers and Privileges) Law as applicable to Edo State are hereby reproduced hereunder: 31. (1) Subject to the provisions of this section, the punishment which may be imposed by the House for an offence under this part shall be the administration by the President or the Speaker of a reprimand at the Bar of the House or removal from the precints of the House or both. (2) In the case of an offence committed by member of the House, the House may, in addition to or instead of any punishment specified in subsection (1) of this section, order his suspension from the service of the House for such period as it may determine: Provided that such period shall not extend beyond the last day of the meeting next following that in which the order is passed, or of the session in which the order is passed, whichever shall first occur. (3) In the case of an offence committed by a person who is not a member, the House may in addition to the punishment specified in subsection (1) of this section, order that such person shall be prohibited from entering the House or its precints for a period not exceeding six months. 32. (1) A member of the House who has been suspended from the service of the House shall not enter or remain within the Chamber or precints of the House while such suspension remains in force, and, if any member is found within the Chamber or precints of the House in contravention of this section, he may be forcibly removed there from by any officer of the House and no proceedings shall lie in any court against such officer in respect of such period. (2) No salary or allowance payable to a member of the House for his service as such shall be paid in respect of any period during which he is suspended from the service of the provisions of this section. From the proviso to S. 31 (2) cited above, the question is can any suspension order placed on a member of the House by the 1st Defendant automatically lapse by the next sitting of the House, or at the end of the session of the House in which the member is suspended, whichever one occurs first, as submitted by the learned claimant’s counsel? For emphasis, the proviso is hereby reproduced again: (2) In the case of an offence committed by member of the House, the House may, in addition to or instead of any punishment specified in subsection (1) of this section, order his suspension from the service of the House for such period as it may determine: Provided that such period shall not extend beyond the last day of the meeting next following that in which the order is passed, or of the session in which the order is passed, whichever shall first occur. The answer in my humble view is in the affirmative to the effect that indeed the House of Assembly has the power rightly to suspend a member of the House from the sitting of the House, but then such power has been circumscribed by the said law that gave it such power. Thus while the House of Assembly can suspend a member such suspension is limited to what has been provided in the proviso to the said Section 31(2) of the Legislative Houses (Powers and Privileges) Law of Bendel State, applicable to Edo State and this is clearly stated in the provision to “the last day of the meeting next following that in which the order is passed, or of the session in which the order is passed, whichever shall first occur.” The defendants counsel had argued that the suspension was for an indefinite period and therefore continued to subsist until it was resolved by the House of Assembly, the 1st Defendant, on 20/12/2010 to lift same. The point here is the inability of the learned counsel to point to any provisions of any law that justified the taking of the step by the 1st Defendant in suspending the claimant indefinitely or lifting same when it deemed fit. The 1st Defendant is bound by the provisions of the law and its actions too must be guided and justified on the basis of the law. Here the decision of my learned brother, Bello, J in the case of Hon. Dino Melaye & 4 Ors Vs. The Speaker, House of Representatives & 2 Ors unreported Suit No: FHC/ABJ/CS/480/2010, in which the court held that the House of Representatives had no power to suspend the plaintiffs for more than 14 days in line with the provisions of Order X Rule 5 (4) of the Rules of the House is apposite. Here the decision is of strong persuasive authority to which I entirely agree that a legislative House cannot be said to possess the power to act in breach of its powers and resorting to its whims and caprices by shoving aside the clear and unambiguous provisions of the law in the name of punishing any person whether its member or not. Furthermore, there is evidence before the court that the Claimant was suspended by the 1st Defendant on 22/2/2010 and also that the 1st Defendant after the suspension sat on 24/2/2010. See the votes and proceedings of the 1st Defendant of 22/2/2010, Exhibit “A” and that of 24/2/2010, Exhibit “B”. Thus there is no dispute as to whether or not the 1st Defendant sat on the 24/2/2010 after the suspension of the Claimant. Also the session of the House in which the claimant was suspended commenced on the 5/6/2009 and ended on the 4/6/2011; See paragraph 12 of the Claimant’s Statement on Oath. These pieces of evidence all go to show that the claimant’s suspension should have elapsed by force of law in accordance with the provisions of Section 31(2) of the Legislative Houses (Powers and Privileges) Law of defunct Bendel State, applicable to Edo State on the 24th day of February, 2010 which was the legislative day next after the suspension and came first before the expiration of the legislative session which came later on 4/6/2010 and I so hold. Thus the 1st issue is hereby resolved in favour of the claimant. On the second issue, which is whether or not the Defendants prevented the claimant from sitting in the House after the 24/2/2010, the date on which his suspension elapsed by force of law, the Claimant stated in his evidence on oath that he was prevented from entering the premises of the 1st Defendant and that on the only day he gained entry onto the Chamber of the 1st Defendant he was ordered to be removed from the said Chamber. See paragraph 15 of the written statement on oath of CW1 and his evidence under cross examination. However, the Defendant’s witness DW1 gave evidence that the Claimant was allowed to enter the premises of the 1st Defendant following his suspension. DW1 further stated under cross examination by the claimant’s counsel that after the lifting of the suspension by the 1st defendant on 20/12/10 conditions were placed on the claimant before he could resume sitting and that he did not meet those conditions. I have carefully considered the evidence of both witnesses for the claimant and the defendants on the issue of the prevention of the claimant from gaining entry into and participating in the proceedings of the 1st defendant; and also of the defendants that the claimant refused to resume sitting after the lifting of the suspension. I believe the evidence of the claimant that on 13th April, 2010 he went into the Chambers of the 1st Defendant but was ordered removed by the 2nd Defendant, ostensibly on the ground that the claimant was still under suspension. I also do not believe the evidence of the defendants on this because putting the said evidence on the scale of justice, it is more likely to tilt in favour of the claimant since the 1st Defendant in this case acted on the belief that the Claimant was rightly on suspension up until the 20th of December, 2010, a position which this court has held not to be the case as the said suspension lapsed by operation of law on 24th day of February, 2010. Thus the Claimant was unlawfully prevented from sitting after his suspension had lapsed by operation of law on 24th of April, 2010. There is the argument of the defendants that the claimant refused to resume sitting after his suspension was lifted on 20/12/2010. However, having considered the evidence of the defendants, especially of DW1 in his Statement on oath and under cross examination, it is clear that the said lifting of the suspension, contained in a letter tendered and admitted as Exhibit K, was never even served on the claimant. DW1 also stated under cross examination that the letter lifting the said suspension, Exhibit K, had in it conditions which the claimant never fulfilled. This means that the claimant was not eligible to be allowed entry into the House for not fulfilling the conditions. Therefore it is my finding that the claimant did not refuse to come back to the 1st defendant after the lifting of the suspension for which there is no evidence that he had been aware of and there were conditions for him to meet which he never met according to the defendants. In the circumstance, therefore the claimant has successfully discharged the burden on him and I so hold. I refer to Orji Vs. D.T.M. (Nig.) Ltd. (2009) 18 NWLR (Pt. 1173) p.467; HAMZA V KURE (2010) 10 NWLR PT. 1203, P. 630 at 649 paragraph G — H ratio. 3. and VEEPEE INDUSTRIES LTD V COCOA INDUSTRIES LTD (2008) 13 NWLR PT 1105 at 486. The second issue is therefore hereby resolved in favour of the claimant. On the third issue, which is whether the Claimant is entitled to arrears of his salaries and allowances and other remuneration due to him as a member of the 1st Defendant for any period after the suspension of 22nd of February, 2010 up to the end of the last sitting of the House on 21st of May, 2011, the major plank of the defendants argument is that the claimant was not entitled to the said salaries and allowances and other remuneration on the ground that he was on suspension from the 22nd of February 2010 up until the 20th of December 2010 and thereafter he refused to resume sitting on his own volition and thus abandoned his work as a member of the Edo State House of Assembly, the 1st Defendant in this suit. And the legal authority for this, according to the defendants is found in section 32(2) of the Legislative Houses (Powers and Privileges) Law of defunct Bendel State applicable to Edo State and decision in Jeremiah Vs. Ziregbe (1996) 7 N.W.L.R. (Pt. 460) p.346 at p.348, R2. The said Section 32(2) of the Legislative Houses (Powers and Privileges) Law Cap 87 Laws of the Defunct Bendel State 1976 Vol. IV now applicable to Edo State and which specifically applies to members of the legislative House provides that: No salary or allowance payable to a member of the House for his service as such shall be paid in respect of any period during which he is suspended from the service of the House under the provisions of this Section. Learned defendants counsel rightly submitted that the provision is very clear and should be given its clear meaning and application. With this provision the claimant cannot be entitled to any salaries or allowances during the period he was under suspension. However, the question is when was the period of suspension? With the finding and holding of this court that the claimant’s suspension terminated by operation of law on the 24th of February, 2010, it means that the only period he was not entitled for the salary and allowances was the period between the 22nd of February, 2010 and 24th of February, 2010. Thus from the 24th of February, 2010 up to the end of the legislative session on the 31st of May, 2011, the said section 32(2) of the Legislative Houses (Powers and Privileges) Law, Cap 87 Laws of the defunct Bendel State now applicable to Edo State cannot be applied to the claimant to stop him from earning his salary and allowances. So also the submission by the defendants that he had abandoned his work and therefore not entitled to the payment of his salary and allowances on the authority of Jeremiah vs Zeregbe, supra, is not tenable on the finding and holding of the court that the claimant’s suspension expired by operation of law. There is also the issue of the claim for other remuneration, namely, overhead allowance which is to the tune of N700, 000.00 (Seven hundred thousand naira) monthly, furniture allowance and severance allowance which the claimant says he is entitled to. The defendants have sought to defeat this claim by arguing that since the claimant had been suspended and not attending the sittings of the House, he was not entitled to that allowance and also that the evidence of the claimant under cross examination that he in fact maintained a constituency office was not supported by the pleadings. On his own part however, the claimant has given evidence that the said amount of N700,000.00 was given to him monthly as an overhead costs allowance from his inauguration in June 2007 to February, 2010 when he was suspended. On the issue of overhead allowance, putting the evidence of the claimant on the issue and the submissions of counsel to the parties side by side, I have no difficulty in seeing that the scale of justice tilts in favour of the claimant who has given evidence on oath that he indeed maintained a constituency office and paid the staff thereof during the period in question. The argument and submissions of learned counsel for the defendants that the payment had not been proved as an entitlement does not hold water because the only entitlement reason given was that the member was to be present and sitting in the House. In the instant case, it has been shown by the Claimant that he was entitled to be sitting in the House but for the prevention by the 1st Defendant after the expiration of his suspension. Furthermore, on the issue of all the arrears of salaries and allowances what was pleaded and evidence led by the defendants in their defence paragraphs 5, 24, 25, 26, 27, 28, and 29 of the Amended Statement of defence was that the claimant was not entitled to the said monthly overhead, along with the arrears of salary, furniture allowance and severance allowances, because he did not complete his term in accordance with the law. See also the evidence of DW1 on these in paragraphs 21, 22, 23, 24 and 25 of his written statement on oath. With the finding that the claimant was to have resumed sitting after 24th day of February, 2010 it is quite clear that the entitlements owed every member of the House of Assembly must equally be extended to him. I therefore hereby resolve issue number 3 in favour of the Claimant. In the circumstance and for all the reasons given above, the claims of the claimant succeed and the Court hereby orders that: 1. The Claimant is entitled to arrears of his monthly salary and monthly overheads from March 2010 – May 2011, furniture allowance and severance allowance, the suspension placed on him by the 1st Defendant on 22nd of February, 2010 having lapsed by operation of law on 24th of February, 2010. 2. The Claimant shall be paid the arrears of his monthly salary at N512, 884.84 per month from March 2010 to May 2011, totaling the sum of N7, 693, 272.60k. 3. The Claimant shall be paid Furniture Allowance of N4, 011, 675.00k. 4. The Claimant shall be paid Severance Allowance of N4, 011.675.00k having been deemed by law to have served out his term as a member of the 1st Defendant. 5. The Claimant shall be paid the overhead allowance of N700,000.00 per Month from March 2010 to May 2011 totaling the sum of N10, 500,000.00. Total = N26,216,622.00k i make no order as to costs. Judgement is entered accordingly. Hon. Justice Auwal Ibrahim Presiding Judge