By CrossRiverWatch Admin
The Industrial Court sitting in Calabar, the capital of Cross River State, has invalidated the State’s Special Allowance Law for Public Holders – Law No 2 of 2023.
In a judgment delivered by Justice Sanusi Kado in Calabar, the court declared Law No 2 of 2023 which seems to pay pensions to former governors and their deputies, speakers of the House of Assembly, and their deputies, as unconstitutional and invalid.
In Suit No: NICN/CA/23/2023, the Applicants are: Rt. Hon. Mkpanam Obo Bassey-Ekpo, Hon. Godswill E.K, Hon. Bassey Ibor (for and on behalf of former members of Cross River State House Assembly), and the Government of Cross River State, Cross River State House Assembly, Attorney-General of Cross River State, Rt. Hon. Larry Odey, Rt. Hon. John Gaul Lebo, Rt. Hon. Maurice Wayas Evey and Rt. Hon. Gabriel Ogbudu Ada.
The respondents include: Rt. Hon. Mike Idoko Ogar, Rt. Hon. Gabriel E. Edi, Rt. Hon. Bassey Ewa, Rt. Hon. James Omor Egbeji, Rt. Hon. Francis Busam Adah, Rt. Hon. Orok Otu Duke, Rt. Hon. Itaya Asuquo Nyong, Rt. Hon. Dominic Aqua Edem and Rt. Hon. Patrick Antigha Ene, are joined by Order of the Court dated 31st day of January 2024).
The applicants say the Cross River State Special Allowance for some Public Office Holders Law was sought through the backdoor to increase pensions for the governors and their deputies, speakers, and deputies of the State House of Assembly in the pension scheme.
The judgment reads below:
1. Vide amended Originating Summons filed on the 19th of June, 2023, the claimants seek for the resolution of the following questions. They are as follows: –
1. Whether in view of the Judgment of this Honourable Court delivered in Suit No. NICN/CA/117/2020: THE RT. HON. LARRY OKORI-ODEY V. THE GOVERNOR OF CROSS RIVER STATE & 2 ORS. the Cross-River State House of Assembly has the constitutional legislative power, authority, and/or vires to enact CROSS RIVER STATE SPECIAL ALLOWANCES for some PUBLIC OFFICE HOLDERS LAW, NO. 2, 2023?
2. Whether the CROSS-RIVER STATE SPECIAL ALLOWANCES for some PUBLIC OFFICE HOLDERS LAW, NO. 2, 2023, is valid under section 124 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), AND if the answer is in the affirmative, Whether the inclusion of the Speakers and Deputy Speakers, to the exclusion of other Hon. Members is not discriminatory and in bad faith?
3. Whether considering the new name given to, the passage and assenting of the Law known and cited as CROSS RIVER STATE SPECIAL ALLOWANCES for some PUBLIC OFFICE HOLDERS LAW NO. 2, 2023, the said Law is valid?
4. Whether in view of the Judgment of this Honourable Court delivered in Suit No. NICN/CA/117/2020: THE RT. HON. LARRY OKORI-ODEY V. THE GOVERNOR OF CROSS RIVER STATE & 2 ORS. the Cross River State Gubernatorial Pensions Law, 2005 and the Cross River State Gubernatorial Pensions (Amendment) Law, 2015, Law No. 7 of 2018 or any other such law were subsisting and valid that it could be repealed by CROSS RIVER STATE SPECIAL ALLOWANCES for some PUBLIC OFFICE HOLDERS LAW, NO. 2, 2023?
2. In anticipation of favourable resolution of the questions posed for determination in their favour, the claimants sought for the following reliefs: –
1. A DECLARATION that by the clear and unambiguous provisions of Section 124 (5) of the Federal Republic of Nigeria, 1999 (as amended) and the judgment of this Honourable Court delivered in Suit No. NICN/CA/117/2020: THE RT. HON. LARRY OKORI-ODEY V. THE GOVERNOR OF CROSS RIVER STATE & 2 ORS, the inclusion of the Hon. Speakers and Deputy Speakers in the CROSS RIVER STATE SPECIAL ALLOWANCES for some PUBLIC OFFICE HOLDERS LAW NO. 2, 2023 invalidates the Law, the Cross River State House of Assembly being divested of such legislative powers.
2. AN ORDER DECLARING NULL AND VOID, ILLEGAL AND UNCONSTITUTIONAL the CROSS-RIVER STATE SPECIAL ALLOWANCES for some PUBLIC OFFICE HOLDERS LAW, NO 2, 2023, the CROSS-RIVER STATE GUBERNATORIAL PENSION LAW, NO. 2, 2005, its subsequent AMENDMENT NO. 4 and LAW NO.7, 2018.
3. A DECLARATION that the Cross-River State House of Assembly is only empowered constitutionally to make a valid law that would provide allowances/pensions out of the Consolidated Revenue Fund of the State Governors and Deputy Governors only without breaching or expanding the provisions of the Constitution so empowering it.
4. A DECLARATION that any inclusion of the Hon. Speakers and Deputy Speakers invariably includes other Hon. Members, all members being equal, having been so elected on the same platform from their different constituencies into the Cross-River State House of Assembly in like manner with the Governors and Deputy Governors.
5. A DECLARATION that the CROSS-RIVER STATE SPECIAL ALLOWANCES for some PUBLIC OFFICE HOLDERS LAW NO. 2, 2023 is discriminatory of all other Hon. Members not included, and an infringement on their rights and entitlements, being co-equal with the Speakers and Deputy Speakers.
6. AN ORDER OF INJUNCTION restraining the 1st DEFENDANT through the Executive Governor and his appointees from implementing the CROSS-RIVER STATE SPECIAL ALLOWANCES for some PUBLIC OFFICE HOLDERS LAW, NO. 2, 2023, the CROSS-RIVER STATE GUBERNATORIAL PENSION LAW, NO. 2, 2005, its subsequent AMENDMENT NO. 4 and LAW NO.7, 2018.
7. ANY OTHER ORDER(S) as this Honourable Court shall deem fit in the circumstances of this case.
3. In arguing the originating summons Dr. Emmanuel Idaka, Esq; counsel for the claimants informed the court that the claimants have in support of their originating summons, deposed to an affidavit of nine paragraphs in support. The affidavit was sworn to by the 2nd claimant Rt. Hon. Mkpanam Obo Bassey Ekpo, there is annexed to the affidavit two documents marked as exhibits EEI (1) and Exhibit EEI (2), respectively.
4. Let me say from the on set that in this judgment, the applicants would be referred to as the claimants. While the respondents would be referred to as ‘’the defendants’’ this is in line with the rules of court that recognized parties in an action commenced by originating summons as the claimant(s) and defendant(s).
5. The crux of the depositions contained in the affidavit in support of the originating summons are to the effect that sometimes in the year 2021, an Executive Bill entitled: A BILL for a LAW to be enacted as the CROSS-RIVER STATE SPECIAL ALLOWANCES for some PUBLIC OFFICE HOLDERS BILL, 2023 was to be presented to the Cross-River State House of Assembly for passage into law. It was then agreed among former and incumbent members present at the Special Session with the Executive Governor, Sen. (Prof.) Ben Ayade in attendance that some special allowances be provided for former members of the Cross-River State House of Assembly including the Speakers and Deputy Speakers, especially, to cater for the health of former members.
6. However, to the consternation of the claimants and all other former members, when the said Bill was passed into law and assented to and made public, the former members of the House of Assembly, except the Speakers and Deputy Speakers, were excluded, invariably making it look like another Gubernatorial Pensions Law meant for Governors, Deputy Governors, Speakers and Deputy Speakers, which law had earlier on invalidated and rendered null and void by the decision of this court in Suit No. NICN/CA/117/2020: THE RT, HON, LARRY OKORI-ODEY V. THE GOVERNOR OF CROSS RIVER STATE & 2 ORS. The judgment of which was delivered on 27/5/2021.
7. According to the depositions of the 2nd claimant, the Cross River State House of Assembly (2nd defendant) does not have the requisite constitutional legislative power to make a law, that is, CROSS RIVER STATE SPECIAL ALLOWANCES for some PUBLIC OFFICE HOLDERS LAW, NO. 2, 2023, that will draw allowances from the Consolidated Revenue Fund of the State or the State Treasury in the manner enacted under section 124 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) for Governors, Deputy Governors, Speakers and Deputy Speakers, even to the exclusion of the claimants.
8. A written address was also filed along with the originating summons. Counsel relied on the depositions contained in the affidavit in support and further and better affidavit filed in reaction to the counter affidavit of the 4th – 16th defendants. Counsel also adopted the written addres and reply on points of law filed by the claimants as his argument. Counsel urged the court to grant the reliefs sought and discountenanced the objection to this suit by the defendants.
CLAIMANTS ARGUMENT OF ISSUES:
9. Issue one: Whether in view of the Judgment of this Honourable Court delivered in Suit No. NICN/CA/117/2020: THE RT. HON. LARRY OKORI-ODEY V. THE GOVERNOR OF CROSS RTVER STATE & 2 ORS. the Cross River State House of Assembly has the constitutional legislative power, authority and/or vires to enact CROSS RIVER STATE SPECIAL ALLOWANCES for some PUBLIC OFFICE HOLDERS LA W, NO. 2, 2023?
10. In arguing issue 1, counsel submitted that the answer to the question is in the negative. As by the clear and unambiguous judgment of this Honourable Court which is still subsisting, extant and not set aside on appeal yet, the Cross River State House of Assembly lacks the constitutional legislative power, authority and or vires to enact the Cross River State Special Allowances for some Public Office Holders Law, NO. 2, 2023, which is a replica in substance and spirit, of the Cross River State Gubernatorial Pensions Law, 2005, 2015 and 2018 which have been nullified by the judgment of this Honourablecourt above cited. According to counsel this Honourable court had in suit No. NICN/CA/117/2020; THE RT. HON. LARRY OKORIE-ODE V. THE GOVERNOR OF CROSS RIVER STATE & 2 ORS, held that the Cross River State House of Assembly lacks the constitutional legislative competence to make a law it is not permitted to make by the Constitution of the Federal Republic of Nigeria, 1999 (as amended), particularly, section 124 (5) thereof that donates the power to it.
11. Counsel submitted that the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is the grund norm, the supreme, basic and organic law of the Federation, as per section 1(1) and (3) of the Constitution (supra) dealing with the supremacy of the Constitution over and above all otherlaws of the country, the section provides,thus:- (i)- “This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.” (3) “If any law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.’’
12. Counsel submitted that any law enacted by the National Assembly, State Houses of Assembly or even a Legislative Council that is in conflict with the clear constitutional provisions is to the extent of its inconsistency null and void, of no effect and liable to being set aside. This is the clear and irredeemable fate of the Cross-River State Special Allowances for some Public Office Holders Law, 2023, which seeks to make provisions for allowances for Governors, Deputy Governors, Speakers, and Deputy Speakers out of the Consolidated Revenue Fund of the State against the spirit and intendment of the enabling section 124 (5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
Section 124 (5) of the Constitution (supra) provides, thus:
“Provisions may be made by a law of a House of Assembly for the grant of a pension or gratuity to or in respect of a person who had held office as Governor or Deputy Governor and was not removed from office as a result of impeachment; and any pension granted by virtue of any provision made in pursuance of this subsection shall be a charge upon the Consolidated Revenue Fund of the State.”
13. Counsel submitted that the Special Monthly Allowances provided under the Cross-River State Special Allowances for some Public Office Holders Law NO. 2, 2023 for Governors, Deputy Governors, Speakers and Deputy Speakers are nothing different from pensions which are clearly inconsistent and in conflict with the lucid provisions of section 124 (5) of the Constitution (supra). It is simply clothing the void Cross River State Gubernatorial Pension Law in another garb. A kind of cross-dressing, which the Constitution (supra) does not permit.
14. Counsel refers to the definition of the word “pension” in Black’s Law Dictionary with Pronunciation, 6thEdition (Centennial Edition-1891-I991) as,” Retirement benefit paid regularly (normally, monthly), with the amount of such based generally on length of employment and amount of wages or salary of the pensioner.” It is also defined as “Deferred compensation for services rendered’
15. Counsel contended that the Cross River State Special Allowances for some Public Office Holders Law NO. 2, 2023 provides essentially, substantially and in the main what the Cross River State Gubernatorial Pension Law of 2005, 2015 and 2018 provides, which is, retirement benefits paid out regularly, and indeed monthly, such amount of money in percentages hinged on the salaries hitherto earned, as a pensioner, having left service of the State, based on length of service or engagement or employment of the Governor, Deputy Governor, Speaker and Deputy Speaker. It is undoubtedly, a compensation deferred and reserved for after service, thereby qualifying it indubitably as a pension in line with section 124 (5) of the Constitution (supra).
16. It is the contention of counsel that from the outlay of the allowances as captured from the attached Schedule, a pension plan has been put in place for the four (4) public officers, that is, Governor, Deputy Governor, Speaker and Deputy Speaker. A Pension Plan is defined by Black’s Law Dictionary (supra) at page 1135, thus: “A plan established and maintained by an employer primarily to provide systematically for the payment of definitely determinable benefits to his employees or their beneficiaries, over a period of years (usually for life) after retirement. “It is also defined as a stated allowance paid out of the public treasury granted by government to an individual or to his representatives for his valuable services to the country.
17. Counsel argued that the allowances provided under the Cross River State Special Allowances for some Public Office Holders Law NO. 2, 2023 no doubt fit into the definitions above as the Government had put allowances plan (pension plan) for compensation and determinable benefits for the Governor, Deputy Governor, Speaker and Deputy Speaker to be paid systematically, regularly every month on their retirement from those offices out of the treasury of the state, having rendered valuable services as Governor, Deputy Governor, Speaker and Deputy Speaker, respectively.
18. Counsel submitted that the clear and unambiguous intention of the famers of the provisions of section 124 (5) of the 1999 Constitution (as amended) is to make a law for the provision of pension plan for Governors and Deputy Governors simpliciter, and no more. The Cross-River State Special Allowances for some Public Office Holders Law NO. 2, 2023 went beyond the constitutional power granted the House of Assembly to enact any such law, thereby making the aforesaid legislative enactment ultra vires, void and in conflict with the constitution. This is worsened by the fact of judgment of this venerable court in the RT. HON. LARRY OKORI-ODE Y suit (supra).
19. Counsel went on to argue that by a plethora of authorities in interpreting the provisions of a constitution or statute, resort must be made to the plain, literal, natural or grammatical rules of construction where the words of the constitution or statute are clear and unambiguous. The provisions of the Constitution in the instant case must be interpreted to achieve its purpose to create allowances through a law of the State for the Governor and Deputy Governor, which the Cross-River State Special Allowances for some Public Office Holders Law NO. 2, 2023 seeks to achieve, albeit wrongly, arbitrarily, capriciously, whimsically and unconstitutionally. In support of this contention counsel relied on the cases of DICKSON V. SYLVA (2017) S NWLR (PT. 1567) P, 167 at P. 233, Para D, Per KEKERE-EKUN, J.S.C.; REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIGERIAN AIRSPACE MANAGEMENT AGENCY (2014) 8 NWLR (PT. l408) P. 1 at P. 41,Para. B-C, (2015) ALL FWLR (PT. 762) P. 1786 at P. 1812; AMAECHI V. I.N.E.C. (2008) 5 NWLR (PT. 1080) P. 227 (SC); (2008) I S.C. (PT.1) P. 36 at P. 204; ASSAMS V. ARARUME (2016) 1 NWLR (PT. 1493) P. 368 at 387, Para A-C; (2016) ALL FWLR (PT. 821) P. 1481 at P.1492, Para. F-G, Per RHODES-VIVOUR, J’SC.
20. Counsel continued in AMAECHI V. I.N.E.C (2008) 1 S.C. (PT. 1) P. 36 at P. 204, ONNOGHEN, J.S.C. (as he then was) opined, thus:
“it is settled law that in the construction of a statute, the primary concern of the Judge is the attainment or ascertainment of the intention of the legislature by examination of the language used therein, Where the language used in the legislation or statute or Constitution is clear, explicit and unambiguous, as found in the instant case, the Judge must give effect to it as the words used speak the intention of the legislature.”
21. Counsel further submitted that reading the provisions of section 124 (5) of the Constitution (supra) and the Cross River State Special Allowances for some Public Office Holders Law NO. 2, 2023, vis-à-vis the Cross River State Gubernatorial Pensions Law, 2005 and the Cross River State Gubernatorial Pensions (Amendment) Law, 2015 and 2018, respectively, clearly evinces that the State Law was in fulfillment of the intention of the Constitution to make a law for pension allowances for Governor and Deputy Governor, but overshot and shot itself in the foot by the deliberate inclusion of the Speaker and Deputy Speaker,
22. Counsel further relied on the case of NOSDRA V. MOBIL PROD. (NIG.) UNLTD. (2018) 13 NWLR (PT.1636) P. 334 at P.336, Holding No. 3, dealing with the effect of an Act of the National Assembly being inconsistent with provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Court of Appeal, Calabar Division, held, thus:
“Sections 1 and 6 of Constitution of the Federal Republic of Nigeria, 1999 (us amended) empowers the Courts to declare any Act of the National Assembly inconsistent with the provisions of the Constitution, null and void. Therefore, the Courts will not allow any authority to act ultra vires its powers under the Constitution.”
23. According to counsel on the authority of the NOSDRA case (supra), the Cross River State House of Assembly lacked the vires to enact the Cross River State Special Allowances for some Public Office Holders Law 2023, which is inconsistent with Section 124 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), therefore liable to being nullified by this Honourable Court.
24. Counsel posited that to apply the literal or grammatical canon of interpretation of statutes in resolving this issue in favour of the claimants findng finding and holding that the Cross-River State House of Assembly lacked the vires to enact the Cross-River State Special Allowances for some Public Office Holders Law NO. 2, 2023 for the provision of monthly pension allowances for Governors, Deputy Governors, Speakers and Deputy Speakers.
25. Issue 2: Whether the CROSS RIVER STATE SPECIAL ALLOWANCES for some PUBLIC OFFICE HOLDERS LAW, 2023, is valid under section 124 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), AND if the answer is in the affirmative. Whether the inclusion of the Speakers and Deputy Speakers, to the exclusion of other Hon. Members, is not discriminatory and in bad faith?
26. According to counsel the answer to the poser above is in the negative. The Cross River State Special Allowances for some Public Office Holders Law, NO. 2, 2023 is invalid under section 124 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). In BOKO V. NUNGWA (2019) I NWLR (PT.1654) P. 395 at P. 405,Holding 4, the Supreme Court held that the Constitution of the Federal Republic of Nigeria,1999 (as amended) is supreme and soars far above the constitution and regulations of a political party. By the same token, the provisions of Section 124 (5) is supreme to any law made by the House of Assembly of Cross River State in conflict or in violation of the Constitution including the Cross-River State Special Allowances for some Public Office Holders Law, NO 2, 2023. Counsel submitted that should the law be held to be valid, the exclusion of other former Honourable members (the claimants) makes the law discriminatory and enacted in bad faith.
27. For counsel what is good for the goose is good for the gander. The Speakers and Deputy Speakers being Honourable members elected on equal platform as the other aggrieved members do not have any more privileges and entitlements than the others. This is more so, because they are just first among equals.
28. Counsel continued his submission that section 124 (5) of the Constitution of the Federal Republic of Nigeria I999 (as amended) explicitly, un-equivocally and in a most clear terms makes provisions for pension allowances for Governors and Deputy Governors only. It does not make provisions for Speakers and Deputy Speakers. The CROSS-RIVER STATE SPECIAL ALLOWANCES for some PUBLIC OFFICE HOLDERS LAW NO. 2, 2023, is therefore, invalid under section 124 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) because it is directly in conflict with its clear provisions as an enabling law or statute and to the extent of its inconsistency, it is void ab initio and of no effect whatsoever. It does not confer any authority on the 1st defendant through its officers like the Governor and Accountant General to pay out of the Treasury of the State the said outlined allowances to the selected public officers, to wit: Governors, Deputy Governors, Speakers and Deputy Speakers, respectively.
29. Counsel refers to the case of MADUKAEGBU V. STATE (2018) 10 N WLR (PT.1626) P. 26 at P. 35, the Supreme Court, per EJEMBI EKO, J.S.C. (dissenting) held, thus:
“…Where and when a statute enjoins that a thing be done in u particular way or manner, unless that thing is done in a particular way and manner prescribed by that statute such a thing done otherwise than the way or manner prescribed shall be invalid. The prescribed mode or manner must be strictly followed otherwise the thing done shall be invalid such non-compliance with mandatory provisions of the statute is not only an act of insubordination to the statute, it renders the non-compliance with statutory dictates null and void.”
30. Counsel further submitted in ATTORNEY-GENERAL, BENDEL STATE V. ATTORNEY-GENERAL, FEDERATION & ORS. (1982) 3 NCLR I at 13, ESO, J.S.C. said,
“In the interpretation and construction of our 1979 Constitution, I must bear the following principles of interpretation in mind,..
I. The language of the Constitution where clear and unambiguous must be given its plain evident meaning;
II. A Constitutional provision should not be construed so as to defeat its evident purpose;
III. Under a Constitution conferring specific powers, a particular power must be granted or it cannot be exercised;
IV. Words are the common signs that mankind make use ofto declare their intention one to another and when the words of a man express his meaning plainly and distinctly and perfectly, there is no occasion to have recourse to any other means of interpretation.’
V. The principles upon which the Constitution was established rather than the direct operation or literal meaning of the words used,measure the purpose and scope of its provisions and
VI. Words of the Constitution are therefore not to be read with stultifying narrowness.
31. It is submission of counsel that the words used in Section 124 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which confer specific powers to be exercised in a particular manner are very clear and unambiguous and must be given its plain evident meaning which is to donate power to the Cross River State House of Assembly to permissively make a law for pensions/allowances for Governor and Deputy Governor to be charged on the Treasury of the State or the Consolidated Revenue Fund of the State, that being the evident purpose of the said constitutional provision and nothing more.
32. Counsel submitted that the Speaker and Deputy Speaker as well as all the Honourable members of the State House of Assembly, by the 1999 Constitution (as amended) are equal, having equal opportunities and entitlements. The Speaker and Deputy are not allowed to have access to the Treasury or Consolidated Revenue Fund of the State by means of any law to the detriment and exclusion of the others. This is the reason for their total exclusion under Section 124 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
33. Counsel also refers to the case of ATTORNEY-GENERAL, BAUCHI STATE V. ATTORNEY-GENERAL OF THE FEDERATION (2018) 17 NWLR (PT.1648) P. 299 at PP. 316-317, where the Supreme Court held in Holdings 14, 15 and 16 stated as follows:
14. The language of Section 251 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is clear, plain and un-ambiguous,and so has to be accorded the ordinary meaning of the words in that provision.
34. Counsel submitted that the same principles apply to Section 124 (5) of the Constitution of the Federal Republic of Nigena, 1999 (as amended). A careful reading of the sections of the CROSS-RIVER STATE SPECIAL ALLOWANCES for some PUBLIC OFFICE HOLDERS LAW, NO. 2, 2023 also reveals how clear, plain and unambiguous the law is in violation of the Constitution (supra) in making provisions beyond its vires for the Speakers and Deputy Speakers.
35. It is further submitted that the court held in Holding15, in the interpretation of the Constitution, the general principle is that such interpretation as would serve the interest of the Constitution and best carry out its purpose and objective should be preferred. The relevant provision must be read together and not in isolation. Where the words of any section are clear and unambiguous, they must be given their ordinary meaning, unless it would lead to absurdity or it would be in conflict with other provisions of the Constitution. Where the words used are capable of two meanings, the court must choose the meaning that would give force and effect to the Constitution and promote its purpose, in this case the language of Section 251 (a) is very clear and unambiguous, and the words contained therein ought to be given their ordinary grammatical meaning. It was also held that the courts saddled with interpretation or construction of the words or language of a statute or the Constitution, always assume that the legislature uses each word in the provisions for a purpose and not in vain. In interpreting the provisions of the Constitution, in the clear tenor of the words of the provisions, is the function of the court. The duty of the judex is to interpret the Constitution in line with the words used by the makers of the Constitution is the only way to bring out the intention of the makers of the Constitution, Ascertaining the intention of the lawmakers or the parliament from the language used in the statute has always been one of the pillars of canon of interpretation of statute or Constitution. (See OBUSEZ V. OBUSEZ (2007) 10 NWLR (PT. 1043) P. 430; Buhari V Yusuf (2003) 14 NWLR (PT. 841) 446).
36. Counsel submitted that on the contrary, should the Honourable court hold that the Cross River State Special Allowances for some Public Office Holders Law, NO.2, 2023 is not invalid and a violation of the power donated to the House of Assembly under Section 124 (5) of the I999 Constitution of the Federal Republic of Nigeria, the said law is discriminatory of other former Honourable members of the House of Assembly represented by the claimants herein in that the claimants entitlement and privilege of having retirement allowances or pension was discounted in course of the enactment of the Cross River State Special Allowances for some Public Office Holders Law, 2023. This is so because in the first place, the Speakers and Deputy Speakers are equal with all other Honourable members who have served the State excellently for their respective tenures of minimum four years without any blemish or reproach.
37. It is submitted that the passage and assenting of the law in issue without the inclusion of the former Honourable members only because they never presided as Speakers or Deputy Speakers is a violation of their equal entitlement with the Speakers and Deputy Speakers, having served the State creditably with the Speakers and Deputy Speakers. To provide for the Speakers and Deputy Speakers is to say they were never worthy of such allowances and entitlements, which is nothing but deferred compensation by their employer, the Government of Cross River State.
38. Issue 3: Whether considering the new name given to, the passage and assenting of the Law known and cited as CROSS-RIVER STATE SPECIAL ALLOWANCES for some PUBLIC OFFICE HOLDERS LAW, NO. 2, 2023, the said Law is valid?
39. It is submission of counsel that the circumstances of the re-naming, re-branding or christening and the passage of the Cross-River State Special Allowances for some Public Office Holders Law, No. 2, 2023 makes it invalid. This is so, as the re-styling, re-naming, re-branding or christening of the law without any change in substance betrays it as another law equivalent to the Cross-River State Gubernatorial Pension Law which this court with required judicial competence had declared as null and void in an earlier suit. It is calling a rose by another name, yet it smells as sweet.
40. Counsel urged the court to find and hold that the said law remains invalid despite the re-naming, re-branding or christening of the law for pension for Governor and Deputy Governors and Speakers and Deputy Speakers in another name to cast a well and hide its purpose. It is akin to judging a book by its cover, not the content of the book. It could be most misleading. Counsel urged the court to resolve this issue in favour of the claimants.
41. Issue NO. 4: Whether in view of the Judgment of this Honourable Court delivered in Suit No. NICN/CA/117/2020: THE RT. HON LARRY OKORI-ODEY V. THE GOVERNOR OF CROSS RIVER STATE & 2 ORS. The Cross River State Gubernatorial Pensions Law, 2005 and the Cross River State Gubernatorial Pensions (Amendment) Law, 2015, 2018 or any other such law were subsisting and valid that it could be repealed by CROSS RIVER STATE SPECIAL ALLOWANCES for some PUBLIC OFFICE HOLDERS LAW, NO. 2, 2023?
42. In arguing issue 4, counsel submitted that the Cross-River State Gubernatorial Pensions Law, 2005 and the Cross-River State Gubernatorial Pensions (Amendment) Law, 2015 and 2018 ceased to exist, subsist or being extant from the date the Judgment of this Honourable Court was delivered rendering it null and void and of no effect whatsoever. What is nullified or invalidated ceases to be in existence. Therefore, there was no such law as the Cross-River State Gubernatorial Pensions Law, 2005 and the Cross-River State Gubernatorial Pensions (Amendment) Law, 2015 or 2018 in existence to be repealedby the CROSS-RIVER STATE SPECIAL ALLOWANCES for some PUBLIC OFFICE HOLDERS LAW, NO. 2, 2023 at the time of passage into law and assenting thereof.
43. Counsel urged the court to find and hold that the former pension laws were no more in existence at the time its replacement was passed into law and resolve this issue in favour of the claimants.
44. In concluding his submission counsel urged the court to resolve all the issues formulated for determination in favour of the claimants and grant all the reliefs sought based on the affidavit evidence with the attached exhibits and the written argument in support of the originating summons.
THE SUBMISSION OF 1ST 2ND and 3RD DEFENDANTS
45. The 1st, 2nd and 3rd defendants did not object to the grant of most of the reliefs sought. Consequently, no counter affidavit was filed by the 1st to 3rd defendants to contradict or controvert the affidavit in support of the originating summons. The written address filed by the 1st to 3rd defendants in reaction to the originating summons is in support of the originating summons.
46. In the written address filed by the1st to 3rd defendants twin issues were formulated for determination. They are: –
1. Whether the Cross-River State Special Allowance Law 2023 [Exhibit EEI (1)] as passed by the Cross-River State House of Assembly and assented to by the Governor of Cross River State on the 15th day of February 2023 is constitutional?
2. Whether the Cross-River State Gubernatorial Pension Law No. 2, 2005 is still subsisting and valid as a law regulating pension of former Governors and Deputy Governors in Cross River State?
ARGUMENTS ON THE ISSUES FOR DETERMINATION
47. Issue One: Whether the Cross-River State Special Allowance Law 2023 [Exhibit EEI (1)] as passed by the Cross-River State House of Assembly and assented to by the Governor of Cross River State on the 15th day of February, 2023 is constitutional?
48. According to counsel this issue flows from issues 1, 2 and 3 of the claimants’ issues in their written address. These issues were consolidated to form this lone issue for determination.
49. In arguing this issue counsel submitted that the answer to this issue is an emphatic No. Counsel adopted the arguments of the claimants as contained in their issues 1, 2 and 3 but counsel want the issue resolved simply on the constitutionality of the Cross-River State Special Allowance Law 2023.
50. It is submission of counsel that the Cross-River State Special Allowance Law 2023 attempts to create a special allowance to former Governors, Deputy Governors, Speakers and Deputy Speakers, one may wonder what kind of allowance enures to former occupants of office if not a pension. But taking the law literarily, the argument is that, such a law is unconstitutional because the House of Assembly cannot make a law for her own allowances as the Constitution has clearly put that responsibility under the Revenue Mobilization Allocation and Fiscal Commission (RMAFC).
51. Counsel went on to argue that under Section 111 of the 1999 Constitution, a member of the House of Assembly shall receive such salary and other allowances as the Revenue Mobilization Allocation and Fiscal Commission may determine. A Speaker and Deputy Speaker are members of the State House of Assembly and therefore cannot legislate to determine their own salary and ‘other allowances’. Any attempt to do so as is done in the current law is unconstitutional and therefore null and void. In National Union of Electricity Employees & Anor. V. Bureau of Public Enterprise (2010) LPELR 966 (SC), it was held thus: “it is trite law that under the consistency test that the validity of any law is determined by its consistency with the provisions of the Supreme Law, that is, the Constitution. So that where any law is inconsistent with any provisions of the Constitution, such other law shall to the extent of the inconsistency be void”.
52. Counsel also submitted that under the Nigerian Constitution Allowances of political office holders is determined by the Revenue Mobilization Allocation and Fiscal Commission (RMAFC) which is established by the 1999 Constitution in Paragraph 32(d) of Part 1 of the Third Schedule. It is the exclusive powers of the RMAFC under the Constitution and no other agency has any such powers. Any other organ of Government that attempts to fix remuneration or allowances other than that by the RMAFC is engaging in illegality. A careful reading of Paragraph 32(d) of Part 1 of the Third Schedule to the 1999 Constitution provides that clear understanding. The RMAFC shall have power to:
(d) determine the remuneration appropriate for political office holders, including the President, Vice President, Governors, Deputy Governors, Ministers, Commissioners, Special Advisers, Legislators and the holders of the offices mentioned in Sections 84 and 124 of this Constitution.
53. Counsel submitted that by the clear and unambiguous provision it is only the RMAFC that can determine salaries and allowances of political office holders. Even when the House of Assembly is permitted to make laws with respect to such salaries and allowances, it must first be restricted to the allowances and salaries determined by the RMAFC and must not be more than the amount so determined. Similarly, such allowances are restricted to current office holders. Section 124 (1) and (2) of the 1999 Constitution, which empowers the RMAFC to fix remuneration of constitutional office holders, actually talks of “salaries and allowances”. The Section provides thus: “there shall be paid to the holders of the offices mentioned in this Section such remuneration and salaries as may be prescribed by a House of Assembly but not exceeding the amount as shall have been determined by the Revenue Mobilization Allocation and Fiscal Commission”.
54. It must be noted that the law which was in all material content same with the Cross River State Gubernatorial Pension Law 2005 as amended merely tried to react to the judgment of the Industrial Court of Nigeria in Rt. Hon. Larry Okori-Odey v. Government of Cross River State & 2 Ors in Suit No. NICN/CA/11/2020 by deleting the word pension wherever it existed in the Pension Law and replacing it with the word “Special Allowance” in the new 2023 Law. It therefore retained the payment of special allowance (pension) to all former Governors, Deputy Governors, Speakers, and Deputy Speakers.
55. It is to cater for past office holders that the Constitution in Section 124 (5) permits the House of Assembly to make law for the pension of former Governors and Deputy Governors. It therefore follows that there cannot be ‘allowances’ after office but only pension.
56. Counsel urged the court to find and hold that payment of allowance to members of State House of Assembly after leaving office is an aberration and not supported by any law and a law such as the present one that attempts to do so is out rightly unconstitutional.
57. Issue 2: Whether the Cross-River State Gubernatorial Pension Law No. 2, 2005 is still subsisting and valid as a law regulating pension of former Governors and Deputy Governors in Cross River State?
58. In arguing issue 2, counsel submitted that in the well- considered judgment of this Honourable Court in Rt. Hon. Larry Okori-Odey v. Government of Cross River State & 2 Ors in Suit No. NICN/CA/11/2020 this Court nullified the Gubernatorial Pension Law Amendment of 2015 and saved the 2005 Law. These were the exact words of this Honourable Court.
“I have scrutinized the provisions of Section 124 (5) of the Constitution of the Federal Republic of Nigeria 1999, as amended, and I am satisfied that the said provisions of the Constitution did confer on the Cross River State House of Assembly power to enact a law to make provisions for grant of pension to the Governor and Deputy Governor of the State. However, there is no equivalent power in Section 124 (5) of the Constitution for making provision for pension for the Acting Governor of the State or the Speaker of the House of Assembly of the State. This means that the Gubernatorial Pension Law Amendment of 2015, which came into force on 19/5/2015 that was made with the sole aim of making provisions for payment of pension to Acting Governor and Speaker and Deputy Speaker was made without vires. The said Amendment having been made without the requisite power is null and void and of no effect whatsoever. In the case at hand, the Pension Law applicable in Cross River State as at February 2012 is the Gubernatorial Pension Law 2005 and not the amended law as at 2015”.
59. Counsel again argued that, the Cross-River State Special Allowance Law 2023 has attempted to repeal the Gubernatorial Pension Law 2005. Having argued that the Cross-River State Special Allowance Law 2023 is unconstitutional and therefore null and void and if this Honourable Court agrees with this argument that the Law is unconstitutional, it therefore means its provisions cannot repeal the 2005 Law which was earlier saved by the Honourable Court in Rt. Hon. Larry Okori-Odey v. Government of Cross River State & 2 Ors (supra).
60. Counsel urged the court to resolve this issue by holding that the Gubernatorial Pension Law of 2005 is the only Law still in operation.
61. In concluding his submission counsel urged the court to grant the reliefs as sought by the claimants as contained in Reliefs 1, 2, 3, 5 and 6. The Court should refuse Relief 4 because if the Court grants Reliefs 1, 2 and 3, there will be nothing left to grant in Relief 4.
THE SUBMISSIONS OF THE 4TH TO 16TH DEFENDANTS.
62. In opposition to the originating summons Prof. Jacob A. Dada, Esq; counsel for the 4th to 16th defendants in arguing in favour of the opposition informed the court that the 4th to 16th defendants have filed a 9 paragraphs counter affidavit sworn to by Rt. Hon. Asuquo Itaya Nyong, one of the defendants joined by order of the court. Counsel relied on the averment contained in the counter affidavit. Counsel also adopted a written address filed in opposition as his argument.
63. In the counter affidavit, it was stated that the 4th to 16th defendants were elected into the Cross River State House of Assembly end served between 2011 and 2015. They were former Speakers and Deputy Speakers of Cross River State House of Assembly at various times, and as such, Principal Officers of the House. In 2015, the Government of Cross River State passed CROSS RIVER STATE GUBERNATORIAL PENSIONS LAW, 2005 to make provision for certain allowances for former Speakers and Deputy Speakers of Cross River State House of Assembly. In 2023, the aforesaid Law, that is, CROSS RIVER STATE GU8ERNATORIAL PENSIONS LAW, 2005 and its subsequent amendments were repealed and another Law, that is, Cross River State Special Allowances for Some Public Office Holders Law, 2023 was enacted. The 2023, does not make provision for pension but special allowances for the named persons evidently in recognition and appreciation of the special contribution and selfless stewardship rendered to the State.
64. However, in apparent malicious attempt to discredit the Law and deny the targeted persons, the Claimants filed this action challenging its validity.
65. It is stated that this matter is not on employment or labour dispute. The Cross-River State Special Allowances for Some Public Office Holders Law, 2023 was regularly and legally passed after public hearing. The law makes provision for allowances as evident from its content. The non-inclusion of the Claimants in the Law is not, and cannot be said to be discriminatory. This suit is a direct challenge of the law properly made by Cross River State House of Assembly.
66. In the written address in opposition the four questions formulated by the claimants were argued by the learned counsel.
67. However, before arguing the four questions submitted for resolution, counsel started with objection to the competency of the action on three grounds, namely: –
1. The Applicants have no locus to initiate the same,
2. The subject matter is not within jurisdictional competence of this honourable court, to hear and determine, not being a labour dispute but purely a constitutional matter and,
3. The Claimants have no authority to institute this action in a representative capacity, thus rendering the suit incompetent.
ARGUMENTS OF THE THREE GROUNDS OF OBJECTION:
68. Locus Standi: On the issue of want of locus, counsel submitted that the claimants do not have the locus standi to institute this action being a challenge of a law validly passed by the Cross-River State House of Assembly in exercising its constitutional legislative powers as provided in section 4 of the 1999 Constitution (as amended).
69. Counsel submitted that it is not only relevant but significant to note that the claim of the claimants is not an assertion of violation of any legal right, whether constitutional, statutory or contractual or invocation of the supervisory jurisdiction of the court to protect any imminent breach of any rights, privileges and entitlements of the claimants. Rather, it is a challenge of the constitutionality of the Law duly passed by Cross State House of Assembly, that is Cross River State Special Allowances for Some Public Office Holders, Law, No.2, 2023. It is accordingly submitted that the subject matter of this suit brought in a private capacity to enforce public right (if any), is totally incompetent and unmaintainable.
70. In the circumstances, counsel submitted that this action is not maintainable by the claimants, since they are not asserting any breach or potential breach of their legal rights. Counsel continued his submission that for someone to have locus standi to institute an action, he must show thnt he has sufficient interest in the matter. In support of this view counsel reled on the case of Adesokan v Adegorolu (1991) 3 NWLR (Pt 179) 293 at 307.
71. According to counsel to have locus standi to institute and maintain an action, the litigant is under a duty to establish justiciable right. No such right has been shown by the claimants in this case. In support of this submission counsel relied on the celebrated decision of the Supreme Court in the case of Abraham Adesanya v President, Federal Republic of Nigeria remains the law that justiciable interest.
72. According to counsel this Honourable court should decline the invitation to assume jurisdiction over this case the same having been instituted by meddlesome interlopers and not persons wHo have justifiable and justiceable interest. In Charles v Governor, Ondo State (2013) 2 NWLR at 294, the law was eloquently declared as follows:
73. A party who seeks a declaratory relief in the constitution must show that he has a constitutional interest to protect and that the interest is violated or breached to his detriment. The interest must be substantial, tangible and not vague, intangible or caricature.
74. It is submission of counsel that the law is settled that where the party initiating an action lacks locus standi, the court is robbed of jurisdiction to entertain it. On this submission counsel relied on the cases of Charles v Governor, Ondo State (2013) 2 NWLR at 294, Yesufu v Governor, Edo State (2001) 2 NCLR 358. Specifically, on what confers locus standi on a person challenging the constitutionality of a Statute, it has been held that:
75. A party challenging the constitutionality of a statute has a duty to show that he has sustained an injury or is in danger of sustaining one in addition to showing that statute is invalid. National Assembly v President, FRN, VOL. 2 LLRN 871. Counsel also refers to the case of Bendel State v A.G Fed. (1981) 3 NCLR 1
76. Absence of jurisdiction: It is submission of counsel that this court lacks the jurisdictional competence to entertain this action as the subject matter clearly, does not fall within the purview of matters which this Honourabie court is empowered to entertain by virtue of the provision of section 254C(1) of the 1999 Constitution (as amended) or the Third Alteration Act, 2010 which establishes the National Industrial Court of Nigeria.
77. According to counsel section 254C(l)(a)(k)which makes provision for the jurisdiction of the court confers exclusive jurisdiction on it to entertain and determine cases relating to or connected with trade disputes, labour practices, matter relating to the Factory Act, Trade Disputes Act, etc.
78. Counsel posited that the legal and practical implication of the above is that the jurisdictional competence of the court is clearly constitutionally circumscribed. It relates and is connected and limited to employment and labour related disputes. According to counsel, the Originating Summons commencing this suitin this court must also relate to labour and industrial relations. In fortification of the foregoing, counsel refers to Order 3 Rule 3 authoritatively provides that:
Civil proceedings that may be commenced by way of Originating Summons include matters relating principally to the interpretation of any Constitution, enactment, agreements or any other instrument relating to employment, labour and industrial relations in respect of which the Court has jurisdiction by virtue of the provisions of section 254C of the Constitution of the Federal Republic of Nigeria,1999 (as amended) or by any Act or law in force in Nigeria.
79. According to counsel the issue submitted for adjudication in this case is not, and cannot, be said to be employment or labour related issue; Decidedly, no employment relationship existed between the Applicant and the 1st and 2nd defendants during the currency of their tenures as former members of Cross River State House of Assembly. Accordingly, labour or industrial relation dispute warranting adjudication cannot arise between them. Ipso facto, this Honourable court lacks the jurisdiction or competence to entertain this action.
80. Counsel further submitted that jurisdiction of a court cannot be assumed or implied but based and predicated on the statute or instrument establishing the court. As the courts have held in a plethora of cases that jurisdiction is a fundamental and threshold issue in a proceeding and as such, the jurisdiction of a court can be challenged at any time or stage in any judicial proceedings: –
81. In Oloba v Akereja(1988)3 NWLR (pt.84)508, 520 it was held, inter alia by the Supreme Court that: –
The issue of jurisdiction is very fundamental as it goes to the competence of the court or tribunal. If a court or tribunal is not competent to entertain a matter or claim or suit, it is a waste of valuable time for the court to embark on the hearing and determination of the suit, matter or claim. It is therefore, an exhibition of wisdom to have the issue of jurisdiction or competence determined before embarking on the hearing or determination of the substantive matter.
82. Counsel further submitted that the fundamentality of jurisdiction has also been restated in the case of Goldrnark (Nig) Ltd v Ibafon Co. Ltd (2012) 10 NWLR (Pt.291), (2013) FWLR (Pt.663) 1, by the Supreme Court as follows;
The question of Jurisdiction of a court is a radical and crucial question of competence because if a court has no jurisdiction to hear and determine a case, the proceedings are and remain a nullity ab initio no matter how well conducted and brilliantly decided they might be, because a defect in competence is not intrinsic but extrinsic to the process of adjudication.Jurisdiction of a court is determined by the plaintiff’s claims as endorsed in the writ of summons and statement of claim even where a federal Government Agency is involved.
83. Counsel further refers to the cases of: Trade Bank Plc v.Benitux (Nig) Ltd (2003) 9 NWLR (Pt.825) 416, Onuorah v. KRPC Ltd (2006)6 NWLR (Pt.921) 393; Adeyemi v.Opeyori (1976)9-10 sc 3I:Adeyemi v. Oditi (2006) 6 NWLR (Pt.977)587; Gafar v. Govt. Kwaro State (2007) 4 NWLR (Pt.1024) 375;Tukur v. Govt. Gongola State (1989)4 NWLR (Pt. 117) 519.
84. Counsel also submitted that that jurisdiction of a court is of such a fundamental and crucial nature in all judicial proceedings that it is not only regarded as a threshold issue, referring to Sule v- Kabir (2112)2 NWLR (Pt.1232) 515 at page 524, paras C – F per Garba JCA.) but incapable of being waived. Counsel urged the court to decline the invitation by the claimants to entertain this action which is clearly outside the contemplation of the jurisdiction conferred on this court by striking out the suit. Counsel also submitted that absence of jurisdiction is irreparable in law and the only procedural duty of court is to strike out the case: Ajayi v Adebiyi (2012) 11 NWLR (Pt.1310) 137 SC.
85. Representative Capacity: Counsel posited that the claimants in this case are purporting to be representing former members of Cross River State House of Assembly. To show that they are so empowered and authorized, they ought to have exhibited relevant documentary evidence in authentication of the claim. The documentary evidence would have been the signed documents by the former House members on whose behalf they are purporting to act. No such evidence has been shown either specifically or impliedly by the Applicants in this case.
86. Counsel conceded that the law is fairly established that it is only a member of a group, family or community who can dispute, intervene or challenge the proper representation or capacity in which the Plaintiffs’ sue Durban HoteI Plc v Ityough (2011) 9 NWLR (Pt 1251) 41, it is however submitted that, where as in this case, it is evident, doubtful or suspicious that no authorization has been shown by a person or party purporting to represent another in a litigation, then, even a defendant can raise the issue of want of authority, and ipso fact, capacity to sue.
87. Counsel refers to the case of Melifonwu and Others v Egbuji& Others (1982) 9 SC 145, where the Supreme Court stated the law as follows:
Representative action is only permissible if more persons than one have a common interest in a suit and the interested persons in suing have given authority to the named plaintiff to sue on their behalf. Counsel further stated it has also been held that where the authority of a person to sue in a representative capacity is challenged, the onus is on him to satisfy the court that he had been duly authorized. To support his contention counsel relied on the case of Olatunji v Registrar, Cooperative Societies, (1968)NMLR 393.
88. Counsel submitted that in the absence of express or implied authorization empowering the present plaintiffs to institute this action, the same is not maintainable and is liable to be struck out, this is especially so as no leave of this Honourable court was obtained prior to the institution of this action to sue in a representative capacity.
ARGUMENT OF THE ISSUES FOR DETERMINATION
89. Issue 1: Whether in view of the judgment of this Honouroble court delivered in Suit. No. NIC/CA/117/2020: THE RT. HON. LARRY OKORIE-ODEY V THE GOVERNMENT OF CROSS RIVER STATE & 2 ORS, the Cross-River State House of Assembly has the constitutional legislative power, authority and/vires to enact Cross River State Special Allowances for some Public Office Holder Law, No. 2, 2023
90. In arguing issue one; counsel submitted that in the examination of this evidently self-serving and misleading issue the claimants had submitted that Cross River State House of Assembly acted ultra vires its powers in enacting Law NO. 2 of 2023 and that the said law is inconsistent with the decision of the court in Suit. No. NlCN/CA/117/2020: THE RT. HON. LARRY OKORIE-ODEY V THE G OVERNMENT OF CROS5 RIVER STATE & 2 ORS.
91. According to counsel Cross River State House of Assembly acted intra vires its legislative powers in enacting the law and that the judgment of this Honourable court in the afore-cited case that is, Suit. No.NIC/CA/117/2020: THE RT. HON. LARRY OKOt2IE-ODEY V THE GOVERNMENT OF CROSS RIVER STATE: & 2 ORS was not intended to override, supersede, or otherwise circumscribe the constitutionality guaranteed legislative powers of the Cross-River State House of Assembly to make laws. It is further submitted that the judgment of a court, even the Supreme Court, does not create a binding precedent on the exercise of legislative power. Ipso fact, the legislative powers of Cross River State House of Assembly cannot be impeded, limited or circumscribed by afore-cited decision of the National Industrial Court.
92. Counsel conceded that courts have the Jurisdictional power to pronounce on the constitutionality or otherwise of any statute, the law is settled as pronounced by the Supreme Court in A.G Abia v A.G Federation (2004-2007)3 LLRN 1260, that:
The courts, including the Supreme Court, have no jurisdiction to question the law-making power of the National Assembly and the House of Assembly of States.This is because the power to make law is vested in them and the court cannot by or through the common law remove the power from them.
93. To further support his contention counsel further refers to the case of A.G. Ondo State v A.G. of the Federation (2002) 9 NWLR (Pt 772) 222 and A.G Bendel State v A.G Federation (1983) 15CNLR 239.
94. Counsel went on to argue that a legislation can be valid, constitutional and unimpeachable even if it is a direct opposite of the decision of a court of law. In support of this position counsel relied on the cases of Boye v Adeyeye, (2012) 12 NWLR (Pt1314) 357, Lakanmi v A.G Western Nigeria (1910) NSCC143, where it was held that a court judgment can be overridden by subsequent legislation. In other words, Government can by legislation reverse or nullify a court judgment. Accordingly, the validity and constitutionality of Law NO. 2, 2023 of Cross River State must be determined by its compliance with the constitution and not the judgment of a court including the afore-cited decision of the National Industrial Court.
95. In reply to the specific submission that Law NO. 2, 2023 is inconsistent with the provision of section 124(5) of the Constitution in that the special allowances provision for in the law are nothing different from pensions, it is submitted that the foregoing submission is misleading and must be discountenanced. First, Law No. 2, 2023 did not make provision for pension but special allowances and it will be a grave subversion of legislative intent to appellate or construe the plain word, “pension and gratuity” as meaning allowances. Indeed, the words, “pension and gratuity” are grammatically and etymologically different from the word, allowances, counsel urged the court to so hold. The law is clear on the construction of statutes that words, in a statute must be given their plain and ordinary meaning. It has also been established beyond equivocation that “there is presumption that words in a statute or the constitution are not mere surplusage or tautology, hence each word should be given effect to” Victorian Chamber of Manufacturers v The Commonwealth (1943) 67 C.L.R 413 at 427. In A.G of Bendel State v A.G Fed. (1981) 10 S.C 1, the Supreme Court held inter alia that the language of the constitution, where clear and unambiguous, must be given its plain and evident meaning. In UTB (Nig) Ltd v Innocent C Ukpabia & Ors (2001) FWLR (Pt 51) 1889 at 1901, the Court of Appeal authoritatively maintained that: Statute must be construed in its ordinary sense and it is improper to read into it what it does not expressly provide. Further, in Ignatius Udeh v Federal Republic of Nigeria, (2001) FWLR (Pt 61) 1731 at 1745, the Court of Appeal emphasized that “it is impermissible for the court to embark on needless exercise of ascribing to the word such other meaning it cannot truly ever accommodate where there is clear and unambiguous words in a statute” if the word pension and gratuity and allowances are different, they must be differently construed as any other construction will be a departure from, and rejection of, the well established canons of statutory construction.
96. Furthermore, it is speculative and unsustainable to assert or submit that the special allowances payable under the law are to be a charge on the Consolidated Revenue of Cross River State as no such provision is stated in the Law. Counsel commends to the court the Supreme Court decision in Kraus Thompson Organisation v National Institute for Policy and Strategic Studies (2004) ALL FWLR (Pf 218) 797 at 809.
97. Where provisions of a statute are clear, the duty of the court is to interpret the clear provision by giving the plain words their ordinary interpretation without more. It is not the function of the court of law to sympathies with a party in the interpretation of a statute merely because the language of the statute is harsh or will cause hardship:
98. Issue 2: Whether the Cross-River State Special Allowances for Some Public Office Holders, Law, 2023 is valid under section 124(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). AND if the answer is in the affirmative, whether the inclusion of the Speakers and Deputy Speakers to the exclusion of other Hon.Members is not discriminatory and in bad faith.
99. Counsel submitted that it has been submitted on behalf of the claimants that Law No.2 of 2023 is invalid being inconsistent with the provisions of section 124 (5) of the constitution. Counsel further submitted that should the law be held valid, the exclusion of other former honourable members makes the law discriminatory and enacted in bad faith.
100. It is however submitted that Law No. 2 of 2023 is valid, constitutional and unimpeachable as it is not inconsistent with the provisions of the constitution or in anyway discriminatory,
101. The provisions of section 124(5) empowers the State House of Assembly of any state to make grant of pension and gratuity to a person who has held office as Governor or Deputy Governor. It is submitted that this provision is not a prohibition provision. Rather, it merely empowers the State House of Assembly to provide for grant of pension and gratuity to the named persons. Accordingly, the specific mention of Governor and Deputy Governor cannot be a bar to the inclusion of some other office holders.
102. More crucially, the provision of section 124 (5) deals with payment of pension and gratuity. Law No. 2 of 2023 makes provision for payment of special allowances. As earlier argued, the words, pension and gratuity are not the same as allowances. Thus, assuming but not conceding that section 124(5) prohibits payment of pension and gratuity to any public office holders other than the Governor and Deputy Governor, since the payment provided for in Law No. 2 of 2023, is allowances, the same cannot be vitiated and neither can it be correctly characterized as payment of pension and gratuity envisaged and provided for in section 124 (5) of the constitution. In validation and fortification of the submission that pension and gratuity are different from allowances, and constitutional intent, counsel relied on the provision of section 124 (2)(3) which provides for payment of “remuneration, salaries, and allowances” to certain public office Holders as distinct from section 124 (5) which provides for payment of “pension and gratuity” The use of different expression, word or term cannot be said to be inconsequential or of no value. Decidedly, therefore, if the constitution had wanted to abrogate or limit payment of allowances to only the Governor and Deputy Governor, the word allowances would have been included in section 124(5). Counsel urged the court to decline the invitation of the claimants to read into section 124(5) what is not there.
103. In response to submission on discriminatory, that the law is discriminatory by the exclusion of other Honourable members, counsel submitted that the submission is self-serving, diversionary and malicious and ipso fact, untenable and unsustainable as no case of discrimination or bad faith has been established. A law is only discriminatory if it violates the principle of equality on the basis of sex, age, religion, creed, or political opinion. Discrimination exists where there is different treatment for similarly situated parties in the absence of any legitimate reason. In this case, the persons who are entitled to the special allowances are the holders of the office of Speakers and Deputy Speakers. None who has held that office is excluded. The argument that Speakers and Deputy Speakers and other members of the House of Assembly are equal and entitled to the same privileges is, with due respect, not only self-serving but not a legal argument. The two offices are not merely recognized but created by the Constitution. Further, in the National Order of Precedence of Public Officers and Other Persons Act, while the Speaker of the House of Assembly is listed as No. xxi, (twenty-one), members of the State Assembly are listed as no xxxi (thirty-One).
104. Accordingly, counsel urged this Honourable court to hold that Law No. 2 of 2023 is valid and not unconstitutional and neither is the law discriminatory or enacted in bad faith. Decidedly, the law is concerned with ultra vires legislation and not mala fides- Obayuwana v Governor (1982) 12 SC 147 at 216.
105. Issue 3: Whether considering the new name given to, the passage and assenting of, the Law known and cited as Cross River State Special Allowances for some Public office Holders Law, No. 2, 2023, the said law is valid
106. It is submitted that the validity and co
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