When does a Legislator become Entitled to Salaries, Allowance, and Emoluments?

CASE TITLE: UZONWANNE v. SPEAKER, IMO STATE HOUSE OF ASSEMBLY & ORS (2024) LPELR-61934(CA)

JUDGMENT DATE: 14TH MARCH, 2024

JUSTICES: AMINA AUDI WAMBAI
ADEMOLA SAMUEL BOLA
MOHAMMED LAWAL ABUBAKAR

DIVISION: OWERRI

PRACTICE AREA: PUBLIC SERVICE

This appeal borders on the Remuneration of Legislators.

This appeal is against the judgment of the National Industrial Court of Nigeria sitting at Owerri Division presided over by Hon. Justice I. S. Galadima which judgment was delivered on 20/01/2020.

The case of the Appellant at the trial Court is that he is entitled to be paid his full accrued arrears, outstanding salaries, emoluments, allowances, and other entitlements from the inception of the 7th Imo state House of Assembly to the date of the termination of the tenure thereat. He claimed against the respondent the sum of N274,636,234.00 (Two Hundred and Seventy-Four Million, Six Hundred and Thirty-Six, Thousand, Two Hundred and Thirty-Four Naira) being liquidated amount accrued and outstanding salaries, emoluments, allowances and other entitlements owed and due to him from the inception of the 3rd Respondent herein till its termination. The Appellant also claimed 10% monthly interest on the said sum from the month of March 2015 to June 2015 and thereafter 15% monthly interest on the said sum from the month of July 2015 till the amount is fully paid to him.

The Respondent on the other hand contended that the Appellant was not entitled to his claims. He argued that the Appellant had been erroneously sworn into the 7th House of Assembly after deceptively securing the Court Order of 13/3/2015 from the High Court of Justice holden at Orlu in Suit (No. HOR/146/2014. It was further argued by the Respondent that the Appellant was not entitled to be paid for work that was never done/performed by him in the 7th assembly whilst battling with numerous Court cases for 45 months out of the 48 months’ tenure as he did not represent the Oguta State Constituency in the 7th Assembly during the said period. The Respondent further contended that the Appellant never disclosed to the Court that he was (elected or returned by the Independent National Electoral Commission to represent Oguta Constituency nor did he actually represent his Constituency from June 2011-June 2015, to be entitled to the sum claimed. The Respondent urged the trial Court to dismiss the Appellant’s claims as same are unjustified and also dismiss the suit in limine.

The trial Court refused to grant the reliefs sought by the Appellant. The Appellant being displeased with the judgment of the trial Court applied for the leave of trial Court to enforce his right, hence this appeal.

ISSUES FOR DETERMINATION:

The Court determined the appeal on these following issues:

1. Whether the Appellant is entitled to full salaries, emoluments and other perquisites of office having been sworn as a member of the Imo House of Assembly for Oguta State Constituency three months to the end of the tenure of the 7th Assembly of the Imo State House of Assembly which was the only period (3 months), the Appellant sat in the assembly as a member.

2. Whether the case of Mato v. Hembe (2017) LPELR 42765 SC is relevant and applicable to the determination of this Appeal.

COUNSEL SUBMISSIONS:

Learned counsel for the Appellant submitted that the Respondent did not refer the trial Court in its submission to any law that prevents a person sworn in by a valid Court Order from claiming areas of entitlements, salaries. Referred to Section 111 of the 1999 Constitution (as amended) which provides that:

“A member of the House of Assembly shall receive such salary and other allowances as the Revenue Mobilization Allocation and Fiscal Commission may determine”

From the above, it was submitted that there was no condition placed on the State Assembly to decide who gets what as a member of House of Assembly except by being sworn into office. Once a House of Member takes his Oath of Office, Section 111 of the Constitution becomes binding to his benefit against anybody or authority. Referred to the case Mato V. Hember (2017) LPELR – 42765 SC.

It was argued that the content of paragraph 10 of the Statement of Defence at page 18 of the record of appeal was an admission of correctness of the claim as accruing to the holder of the office of the member of the House of Assembly Imo State Oguta State Constituency according to Section 111 of the Constitution, and it is deemed established.

​Submitted that if the trial Court found as established that the Appellant/Claimant was sworn into office and was paid three months’ salary, the provision of Section 111 of the Constitution would avail the Appellant without more and the trial Court was bound to make appropriate order for the payment of his claims as contained in the Claim. That this failure was an error which occasioned miscarriage of justice.

It was argued that the test for entitlement of arrears of salaries, emoluments and other benefits as a member of a house of assembly or holder of a political office is swearing-in into office and nothing more, which point the trial Court had already admitted in its finding when it held that the claimant was only entitled to three months’ salary for being sworn in three months to the end of his tenure.

It was submitted that the time of swearing-in into office is immaterial for the purposes of entitlement accruing to a rightful office holder, in the particular wordings of Section 111 of the Constitution.

Learned counsel for the Respondent submitted that the burden of proof in civil cases shall be discharged on the balance of probabilities referring to Section 134 of the Evidence Act, 2011.

Counsel referred to the contention of the Appellant to the effect that he was entitled to the payment of salaries and emoluments purportedly due to his office during the 45 months Litigation period.

That the Appellant further contented that he is justified to be paid his claim being monies owed for work he was ordinarily to have executed if he had been on seat as a member representing the Oguta Constituency at the 7th State House of Assembly. It was the Respondents’ contention on the other hand that the Appellant was not entitled to his claims as he was erroneously sworn into the 7th State House of Assembly.

​It was the submission of Respondents’ Counsel that save for the fact the Appellant was sworn in by the Respondents into the 7th State House of Assembly pursuant to the Order of the High Court of Justice Orlu on 13/3/2015, that the Appellant failed to proffer any credible evidence to show that he deserved or was entitled to the payment of salaries, emoluments, and other allowances for the 45 months’ period of the tenure of the 7th State House of Assembly.

DECISION/HELD:

In the final analysis, the appeal failed and it was accordingly dismissed. The judgment of the trial Court was affirmed.

RATIO:

LEGISLATURE –   RIGHT OF LEGISLATOR: When does a legislator become entitled to salaries, allowance, and emoluments

“…when does a legislator become entitled to salaries, allowances and emoluments? This issue came up for consideration in the case of Ola V. INEC & Anor. (2012) LPELR -9854 (CA) where this Court had this to say:

“In the instant appeal, by the judgment of Court of Appeal with Appeal No. CA/IL/SEN/26/2008 delivered on 30th June 2009, the Appellant only becomes a Senator on the day he received his Certificate of Return pursuant to the said judgment and not earlier. There is only one Constitutional Seat for the Ekiti Central Senatorial District. The earlier occupant legitimately, occupied the seat having been earlier declared, returned, and sworn in according to the law. The contention of the Appellant that since he was sworn in, on 7th July 2009, he is entitled to salaries, allowances, and emolument accruing to the seat of Ekiti Central Senatorial District, Ekiti State from 29th day of May 2007 to 6th day of July 2009 is misconceived and not backed up by any law.” This Court held further:

“It is morally and politically wrong for a person who did not work to present a claim for salaries, allowances and entitlement which he did not merit. It is my view that a member of the Senate like the Appellant is only entitled to receive such salary and allowances from the day he was sworn in and not before then. It cannot be retrospective. Per Bada, JCA.” It is equally germane to be noted that under Section 94 of the Constitution of the FRN 1999 (as amended), it is provided that:

“Every person elected to a House of Assembly shall, before taking his Seat in that House, declare his assets and liabilities in the manner prescribed in this Constitution and subsequently take and subscribe before the Speaker of the House, the Oath of Allegiance and Oath of Membership prescribed in the schedule to this Constitution, but a member may, before taking the Oaths, take part in the election of the Speaker and Deputy Speaker of the House of Assembly.” It is important to assert that the compliance of the Appellant with the above provisions is the condition precedent for taking his seat in the House. It naturally follows therefore that he becomes entitled to the salaries, allowances, and emolument of the office, as a member of the House of Assembly only from the time he took his Seat in the House. It cannot be earlier. He is only paid the salaries, allowances, and emoluments of the office as a member of the House de jure and defacto. It is clear therefore that the above provision of the Constitution was complied with or satisfied with by the Appellant from the date he was sworn in as a member of the House. He was therefore only entitled to be paid salaries, allowances, and emoluments accruable to his office as a Member from when he was sworn and until when the three months lapsed. The principle of law in the Maxim Quantum Meruit, is that a person is entitled to be paid for services he had rendered. The converse which is true is that a person is not entitled to be paid for services he has not rendered. See Ola V. INEC (Supra) Per Eko, JCA (as he then was). The above conveys this Court to consider the decision of the apex Court in Mato V. Hembe whether it is relevant and applicable to the present action. It is evidently clear that the case of Mato V. Hembe differ considerably from the instant appeal. In MATO’S case, Hember performed the duties of his opponent (Mato) until this Hember purported victory was set aside by the Supreme Court and he was ordered to refund all emoluments and allowances collected by him while performing the role of a Legislator when he was not qualified to so do. In the instant appeal, the Seat remained vacant and unoccupied and the duties therefore not performed by Appellant or any other person until the swearing-in of the Appellant in accordance with Section 94 of the Constitution. In any case, the outcome of the apex Court decision in Mato’s case is in support of the Respondents in this appeal in the sense that the decision does not support payment of salaries, allowances and emolument to a person who is not entitled to occupy an office and who had not begun to function legally in the office. Suffice to say, the case of Mato V. Hember (Supra) does not support the contention and the case of the Appellant that he should be entitled to the salaries and allowances for the period he did not work. Such was not the intendment of the decision on Mato’s case. The apex Court never held and it cannot be implied that all the money recovered from Hember should be paid to Mato upon his being sworn into office. In the present appeal and following the decision in Ola V. INEC (Supra), the Appellant is not entitled to any salary, allowance, and emoluments when he was not sitting and having not been sworn in as a member of the 7th Assembly of the Imo State House of Assembly. What he was entitled to are the salaries, allowances and other emoluments accruing to his office as a Legislator for the three months remaining prior to the expiration of the terms of office or tenure of the 7th Assembly. Applying the principle of Quantum Meruit, the Appellant is only entitled to payment for the period he worked and not for the period he never sat in the House or perform any legislative duties having not taken the Oath of office for the purpose of performing the legislative duties. In summary, it is settled that the case law do not support the contention of the Appellant that he is entitled to the salaries, allowances, and other emoluments for the period he did not sit or work as a member of the Imo State House of Assembly and having not been sworn in as a member. His claim in that regard is bereft of any statutory support or precedent upon which this Court can exercise its judicial power to grant the reliefs so claimed by the Appellant. Not even the case of MATO V. HEMBER which he relied on heavily is relevant to, applicable or in support of his assertion and claim. In other words, the above perquisites of office accruable to the office of a legislator of the House of Assembly can only be paid to the Appellant for only the three months he was in office prior to the effluxion of the tenure of the 7th Assembly.” Per BOLA, J.C.A.

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