DR. TINUOLA FEMI RUFUS -vs- KOGI STATE UNIVERSITY, ANYIGBA, KOGI

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LOKOJA JUDICIAL DIVISION

HOLDEN AT LOKOJA

BEFORE HIS LORDSHIP: HON. JUSTICE Z.M. BASHIR.

Dated this 24^th day of April, 2018

SUIT N0: NICN/LA/22/2014

BETWEEN:

TINUOLA FEMI RUFUS——————————–CLAIMANT

AND

KOGI STATE UNIVERSITY, ANYIGBA,

KOGI STATE

THE GOVERNING COUNCIL, …………DEFENDANTS

KOGI STATE UNIVERSITY,

ANYIGBA, KOGI STATE

Representation:

Adebayo Fakunle for the Claimant

P.A. Akubo (SAN) with M.J. Jabbe for the Defendants

Judgment

This suit was commenced by a general form of Complaint originally filed before this Honourable Court on 24^th January, 2014. The suit was partly heard in the Abuja Division before being transferred to this Division in November, 2017.

By the said Complaint, the Claimant is seeking the following reliefs against Defendants:

A DECLARATION that by the Defendants’ letter of 31^st October, 2006 with Reference No. KSU/R/APP/PRO/VOL 1, the Claimant was an employee of the Defendants from 31^st October, 2006 to 31^st March, 2013.

A DECLARATION that the act or gesture of the Defendants in personally deciding to issue a letter of Dismissal from service against the Claimant instead of approving the Claimant’s letter of withdrawal from service in compliance with the provisions of chapter 14 (1) (i) and 14.2 of Kogi State University Anyigba’s conditions and Schemes of service for Senior Staff 2008 is unfair, wrongful and illegal.

AN ORDER directing the Defendants to pay the Claimant his outstanding leave bonus for 2006 to 2011 being N1,692,122.55.00 only, being payment for accumulated leave deferred for the years 2006, 2007, 2008, 2009, 2010, 2011, which have not been paid for, after the deduction of the amount required for the withdrawal of service.

AN ORDER directing the Defendants to withdraw the letter of Dismissal dated 28^th October, 2013 issued to the Claimant and to re-issue a fresh letter of approval of withdrawal of service to the Claimant devoid of being adjudged guilty of any offence whatsoever, effective 1^st April, 2013.

AN ORDER directing the Defendants to publish the withdrawal of letter of Dismissal dated 28^th October, 2013 issued to the Claimant and the Re-issuing of a fresh Letter of Approval of withdrawal of Service to the Claimant devoid of the being adjudged guilty of any offence whatsoever, in (i) the Kogi State University News Flash (ii) Graphic Newspaper (iii) Any other National daily newspapers in Nigeria.

The sum of N5,000,000.00 being general damages for the wrongful issuance of letter of dismissal from service instead of approval of withdrawal from service.

The Complaint was accompanied by a verifying affidavit, statement of fact, witness statement on oath, list of witnesses, list of documents and copies of same.

The Defendants on their part entered appearance and filed a joint statement of Defence on the 15^th of April, 2014 which was amended and filed on the 21^st of February, 2018. Upon that, the Claimant filed a reply on the 15^th of March, 2018.

The Claimant opened his case on 18^th of January, 2018 with the Claimant being the only witness as CW1. The said CW1 adopted his witness statements on oath dated 24^th January, 2014 as his evidence in chief and same was marked as C1. Through the same witness, 24 documents were tendered as exhibits. The documents were admitted and marked as exhibits C2 – C25. Exhibits C23 and C24 were however admitted under protest.

Arising from the statement of Fact and witness statement on oath of Claimant marked as C1, it is the case of the Claimant that he was employed by the Kogi State University, Anyigba as Senior Lecturer on 31/10/2006 on UASS 5/1 (N420, 060. 00) per annum with other conditions of his employment similar to what obtains in the Federal Universities.He became the Acting Head of Department of Sociology in the University on October 14, 2009 and was later promoted to the rank of a Reader effective from October 1, 2010. The claimant avers that by a letter dated 7/3/12, he applied for his accumulated Annual Leave of 150 working days which he could not proceed with, as a result of the Accreditation Exercises embarked upon by the University. That the said accumulated leave of 150 working days was approved and deferred for the period up to 2011/2012 Academic year.

The Claimant further avers that by the letter of appointment dated 31/10/06, either the Claimant or the Defendants is entitled to terminate the appointment by giving three (3) months’ notice or payment of three (3) months salaries in lieu of notice. In view of this, and in compliance with the provisions of chapter 14 (1) (i) and 14.2 of Kogi State University Anyigba’s conditions and Schemes of Service for Senior Staff 2008, the Claimant wrote a letter dated 26th March 2013 to notify the Defendants of the withdrawal of his service from Kogi State University with effect from April 1, 2013. The Claimant avers that by this time his accumulated leave was 180 days, the additional 30 working days of leave being for 2012/2013 academic year which ended on 8/12/13.

According to the claimant, the amount payable for the leave allowance between April 2013, and December, 2013 is Two Million, Seven Hundred and Seven Thousand, Three Hundred and Ninety Six Naira Ten Kobo (N2, 707, 396.10) net of tax deduction, while the allowance for the three months salaries in lieu of notice amounted to One Million, Six Hundred and Ninety Two Thousand, One Hundred and Twenty Two Naira, Fifty Five Kobo (N1, 692, 122.55).

After tendering the letter of withdrawal of service, the Claimant received a pay slip for his April salary to which he protested via a letter dated 20th May 2013.

Prior to the payment of the April salary and the protest letter, the Claimant avers that on 5th March 2013, he received a letter from the Registrar asking the Claimants to produce 13 missing scripts for SOC 405. He responded via a letter dated 6^th March, 2013 to state that the missing scripts were not with him.

Having not gotten a response in respect of the letter of withdrawal written in March, the Claimant wrote a letter dated August 15, 2013 to the Vice Chancellor, requesting to know if his service to the University is still needed or not. Claimant avers that on the 21^st August 2013, he was surprised to receive two letters dated 2nd April 2013 and 23rd April 2013 respectively, one requesting the Claimant to respond to charges while the other one is the refusal of his notification of withdrawal of service which he had written since 26th March, 2013. He responded accordingly.

Claimant stated that by a letter dated 17/10/2013, he was invited by the Defendants to appear before the Senior Staff Disciplinary Committee on allegation of abscondment from duty.

The Claimant denied the allegation of abscondment and maintained that after submitting his letter of withdrawal of service on 26^th March, 2013, he performed his duties till 5^th may, 2013 when it was evident that his salaries were not paid which is tantamount to technical approval of his withdrawal of service.He also averred that the letter of 24/10/2013 inviting him to appear before the Governing Council of Kogi State University, Anyigba, to respond to charges on examination malpractices and negligence of duty which were never mentioned at the Disciplinary Committee was a calculated attempt to discredit his character and reputation.

On 28th October, 2013, Claimant received a letter dismissing him from service, he avers in this regard that the dismissal, instead of approving his letter of withdrawal from service is a calculated attempt to truncate his life career and it was borne out of a misguided passion to mar his reputation as he has not committed any offence to warrant dismissal from service.

During cross examination, the Claimant stated that he is familiar with the scheme of service and he knows that absence from duty without permission; negligence and damage to or loss of University property are major misconduct while abscondment from duty is a gross misconduct according to Chapter 6.23, page 14 (item vi) of the Scheme of Service. He also agrees that dismissal is punishment for gross misconduct after reading paragraph 6.34 of the page 14 of the Scheme of service. He also agreed that answer scripts were properties of the Universityand that by virtue of his appointment as head of Sociology Department, he was the chief examiner and the bulk stops on his table as regards exam matters. The claimant also stated that he knows that the procedure for going on sabbatical is to apply in writing and get approval in writing. He maintained he did not pursue the approval because he submitted another letter withdrawing his service. With regards to the missing scripts, the Claimant stated that he did not produce the scripts but he wrote to the lecturer teaching the course to produce them. The Claimant also said he is familiar with the procedure for withdrawal of service and that his withdrawal was not accepted.

With respect to the Claimant staying back in the University up to 6^th May, 2013 after serving his withdrawal letter, the Claimant said he had an understanding with the HOD, Sociology but that understanding was not in writing and he also did not get the approval of the Vice Chancellor to stay back after 1^st April, 2013. The Claimant also stated that he applied to Federal University Lafia and was offered sabbatical which took effect from 1^st April, 2013 and he reported on the 2^nd of April, 2013 and was paid for April – June. He also said he did not obtain the permission of his employer for the sabbatical since his service had been withdrawn yet he did not inform Federal University Lafia that he had withdrawn his service from the 1^st Defendant. He also stated that he resumed work in the 1^st Defendant after 4 months and it was not necessary to inform his employer where he had been and that it was not humanly possible to be at two places at the same time. With regards to attendance sheet tendered, the Claimant said as at the date of the attendance (9/4/2013), he was not supposed to be at the University going by his letter of withdrawal.

With regards to investigations, the Claimant stated that he was given opportunity to appear and explain on the allegation of abscondment and that he appeared before two panels.

The claimant said he did not give the University 3 months’ notice and that he did not pay the University three months’ salaries but he asked the University to deduct it from his leave allowance.

The Claimant also stated that he wants this court to declare that he was a staff of the 1^st Defendant from 31/10/2006 to 31/3/2013. The Claimant also answered in the affirmative that more than 6 months had elapsed before he commenced this suit in January, 2014 when the University refused to accept the withdrawal of service. And that between 31/3/2014 and 24/1/2014 when this suit was instituted, 9 months had passed.

There was no re-examination of CW1 whereupon the Claimant closed his case.

The Defendants open their case on the 8^th of February, 2018 Calling one witness, DW1, Prof. Ada Okau, who adopted his witness statement on oath filed on the 15^th of April, 2014 as evidence in chief and marked as D1. 13 documents were tendered through the witness and marked as exhibits D2 –D14.

Arising from the statement of defence and witness statement on Oath of DW1, the case for the Defendants is that while the Claimant was appointed by the 1^st Defendant, the Defendants denied the application for culminated leave allowance of 150 days. The Defendants also agree that either the Claimant or Defendants can terminate the appointment of the Claimant with Three months notice or salary in lieu of three months.

With regards to the withdrawal of service by the Claimant, the Defendants aver that as at March, 2013, the Claimant had been indicted for not holding Departmental Board of Examiners meeting as and when due, poor handling of Examination materials such as attendance sheets, answer scripts, marking scheme, poor statistics of students enrolment per course, not allowing Departmental officer full right of duty and poor accounting of missing scripts in the Department of Sociology, Kogi State University. The Defendant in this regard pleaded the Report of the University Management Panel headed by Prof. S.S. Arogba and submitted to the Vice Chancellor of the 1^st Defendant in February, 2013.

Furthermore, by a letter dated 5^th March, 2013, the Registrar of the 1^st Defendant demanded of the Claimant to produce thirteen (13) missing Examination Scripts of Industrial Sociology (SOC405) in the first semester Examination of 2011/2012 academic session within 24 hours.

The Defendant also reckoned that the Claimant had by a letter dated 8^th February, 2013, applied to the Vice Chancellor of the 1^st Defendant for one (1) year sabbatical leave with effect from 4^th March, 2013 at Adekunle Ajasin University, Akungba Akoko, Ondo State but same was refused on ground of the missing scripts.

The Defendants stated that the Claimant then hurriedly or out of panic put in Notice of withdrawal of service from the University with effect from 1^st April, 2013 vide his letter of 26^th March, 2013 and he was informed that same was not approved via a letter dated 23^rd April, 2013 until the issue of thirteen (13) missing scripts of final year Students of the Department of Sociology and other related issues were resolved.

The Defendants maintained that the Claimant absconded and resurfaced with the letter written to the VC on the 15^th of August, 2013.

Consequently, the Courses assigned to the Claimant which he abandoned had to be re-assigned to other Lecturers so as not to jeopardise the fortunes of Students offering the Courses more so that the first semester Examinations were under way against 22^nd April, 2013. In this regard, there was an Internal Memorandum dated 18^th April, 2013 from the Acting Head of Department of Sociology to the Vice Chancellor of the 1^st Defendant on the abscondment of the Claimant as well as another Internal Memorandum dated 24^th April, 2013 from the same Acting Head of Department of Sociology to the Vice Chancellor of the 1^st Defendant on the re-allocation of two (2) Courses previously taught by the Claimant before his abscondment on or about 27^th March, 2013.

Following the abscondment of the Claimant from duty, payment of his salary had to be stopped so as to prevent unjust enrichment.

The Defendant also listed the Panels before which the Claimant appeared in respect of allegations made against him.

For want of details, the Defendants aver that the purported letter of withdrawal from service by the Claimant had become a spent force and as such rendered ineffective and of no consequence having been countermanded by the Claimant himself vide his letter dated 30^th August, 2013 addressed to the Vice- Chancellor of the 1^st Defendant informing him that he had reported back to his duty post to resume his official duties with effect from 21^st August, 2013. The Defendants plead and shall found on the said letter dated 30^th August, 2013 and headed “Re-Withdrawal of Service”

Upon cross examination, the witness stated that he joined the University in October, 2000 as Lecturer II with Ph.D., that he is familiar with the system of academics. The witness stated that the Claimant performed well in the area of academics, while as HOD, the Claimant tried his best but his best was not what the University wanted at the time. He further stated that he never served the Claimant a written query but he gave oral queries and cautioned him. And that after cautioning him, it was not palpable that he made amends. He said before issue of exam malpractice, his relationship with the Claimant was cordial.

The Witness noted that the name of the Claimant was not captured in Exh D14 (Report of Departmental Panel of Investigation in respect of Course SOC 405) but HOD was mentioned.

When asked if the Claimant was issued with query, he maintained that the Claimant was given the opportunity to address issues at the various levels from department to the faculty and the management level and council. The witness stated that the Claimant was paid in April but only the Bursary can confirm it.

The witness also added that he recommended the Claimant for approval and when he noticed the Claimant was not performing he objected to his style of leadership.

There was no re-examination of DW1 and consequently, the Defence closed their case.

From the Defendants’ joint final written address filed on the 21^st of February and adopted on the 16^th of March, 2018, Learned Counsel to the Defendants, P.A. Akubo (SAN) raised four issues for determination to wit:

Whether the claim of the Claimant is statute-barred and liable to be dismissed having regard to section 2(a) of the Public Officers Protection Law, Laws of Northern Nigeria, 1963.
Whether the Claimant’s Reply dated 19^th day of May, 2014 ought not to be deemed as abandoned and/or rendered spineless and ineffective there being no evidence in support thereof by way of Witness Statement on Oath.
Whether having regard to the facts and circumstances of this case, the Defendants were justified in dismissing the Claimant on ground of abscondment from his duty post inter alia.
Whether the Claimant has discharged the requisite burden of proof upon him so as to entitle him to the reliefs sought vide paragraph 38 of his Statement of Facts.

In arguing issue one, Learned SAN, Akubo submitted that in dealing with this issue, it is important to address the question when the cause of action arose in this case and for that referred this court to paragraph 8 of the Statement of fact to indicate that From the case made out by the Claimant, he wrote a letter dated 26^th March, 2013 notifying the Defendants of his withdrawal of service from Kogi State University with effect from April 1, 2013.

Learned SAN also referred the court to the reliefs sought by the Claimant before this Honourable Court and contended that they are dominated by the fact of Claimant’s alleged withdrawal of service. He also reiterated that the same reliefs were repeated in Claimant’s witness statement on oath.

Furthermore, Learned SAN reproduced from the CTC of the record of proceedings, certain questions put to the Claimant and his response.

Same is produced here verbatim:

X – By your claim before this court, you are challenging the refusal of Kogi State University to accept your withdrawal of service

A – Yes

X – Before you filed your case in January 2014, more than 6 months had elapsed. When the university refused to accept the withdrawal of service

A – Yes

X – You also want this court to declare that you were a staff from 31/10/2006 to 31/3/2013

A – Yes

X – Between 31/03/2013 and 24^th January, 2014 when you filed this action is more than a period of 9 months

A – Yes

Upon that, the learned SAN submitted that on Claimant’s own showing, the cause of action in this case arose on 31^st March, 2013. And that accounts for why the Claimant is seeking to be declared as an employee of the Defendants from 31^st October, 2006 to 31^st March, 2013. Also, for added measure, he is seeking for an Order against the Defendants to issue a letter of approval of withdrawal of service to him with effect from 1^st April, 2013. Nevertheless, the Claimant did not file this action until 24^th January, 2014, that is to say, more than 9 month after the cause of action arose.

The learned SAN then argued that by section 2(a) of the Public Officers Protection Law, Laws of Northern Nigeria, 1963, the Claimant was expected to file this case within 3 months of the accrual of the cause of action. He quoted the provision of the above law and contended that the Claimant admitted that the suit was instituted after 9 months. Consequently, the law is settled that what is admitted needs no proof. Learned SAN cited Section 123 of the Evidence Act, 2011 and the case of ATANCE V. ATTAH (1999) 3 NWLR (PT. 596) 647 AT 657, PARA. F and OJUKWU V. ONWUDIWE (1984) 1 SCNLR 247 AT 484.

With respect to whether the Defendants are public officers, Learned SAN submitted that from available authorities, it is not in doubt that the Defendants fall under the category of Public Officers being institutions owned by the Kogi State Government. He cited the case of IBRAHIM V. JUDICIAL SERVICE COMMITTEE KADUNA STATE (1998) 14 NWLR (PT.584) 1 AT 44, PARA. F,

To conclude on this issue, learned SAN submitted that the action of the Claimant is statute-barred and hence robs this Honourable Court of jurisdiction to sit over the matter. He submitted further that as settled law, when an action is statute-barred, it deprives the litigating party the right of action, the right of enforcement and the right to judicial relief and leaves the Plaintiff or Claimant with an empty right. He cited the cases of EGBE V. ADEFARASIN (1987) 1 NWLR (PT.47) 1 AT 21; IBRAHIM V. JUDICIAL SERVICE COMMITTEE KADUNA STATE (Supra) AT 32, PARAS. A – B; CRUTECH V. OBETEN (2011) 15 NWLR (PT. 1271) 588 AT 608 – 609, PARAS. G – A; YARE V. N.S.W & I.C. (2013) 12 NWLR (PT. 1367) 173 AT 191 – 192, PARAS. G – B and HASSAN V. ALIYU (2010) 17 NWLR (PT. 1223) 547 AT 619, PARAS. G – H.

On issue two, learned SAN wants this Honourable Court to take Judicial Notice of the Ruling delivered by Hon. Justice P. O. Lifu (JP) on Monday, 6^th July, 2015 where paragraphs 1, 3, 5, 6, 7, 8, 17, 20, 21, 22, 24, 27, 28 and 30 of Claimant’s Reply to the Joint Statement of Defence of the 1^st and 2^nd Defendants were struck out for being needlessly repetitive or an adoption of various paragraphs of the Statement of Facts earlier filed by the Claimant and/or introduction of new facts unrelated to the Joint Statement of Defence of the 1^st and 2^nd Defendants. He cited Section 122 (2) (m) of the Evidence Act, 2011and the case of GARUBA V. OMOKHODION (2011) 14 NWLR

(PT.1269) 145 AT 179, PARAS. D – E.

The Learned SAN reiterated that for the avoidance of doubt, the only Witness Statement on Oath adopted by the Claimant in this case on 18^th January, 2018 when he testified-in-chief is the one attached to the Statement of Facts and which was deposed to on 24^th January, 2014. He then contended that the Law is settled, that pleadings have no mouth to talk but they have to be animated or supported by evidence. Citing the case of OWNERS OF M/V GONGOLA HOPE V. S.C. (NIG.) LTD. (2007) 15 NWLR (Pt. 1056) 189 at 207, PARAS. A – C; OGUNYADE V. OSHUNKEYE (2007) 15 NWLR (Pt. 1057) 218 at 286 PARAS. G – H; and a host of other cases on the same principle and concluded that it is manifestly clear that Claimant’s Reply dated and filed on 19^th May, 2014 is a spent force and completely devoid of inertia. In other words, the said pleading is deemed abandoned and rendered ineffective for want of supportive evidence. A fortiori, the said Claimant’s Reply should be ignored or disregarded all together as of no consequence.

On issue three, Learned SAN posited that it is common ground that the Claimant was dismissed by a letter dated 28^th October, 2013, for three reasons namely, examination malpractice, negligence of duty and abscondment from duty. The said letter was tendered and admitted in evidence as Exhibit “C16”. The learned SAN referred to paragraphs 5 (a), (b), (c), (f) and (g), 12, 13, 17, 18, 20, 27, 34, 36, 38 and 39 of the Amended Joint Statement of Defence of the 1^st and 2^nd Defendants where the reasons for the dismissal were canvassed.

Furthermore, Learned SAN contended that the Claimant tendered vital documents that turned out to be his own undoing in this case. With regards to Conditions and Schemes of Service for Senior Staff in Kogi State University, Anyingba, tendered by the Claimant and admitted in evidence as Exhibit “C22”. By Chapter six, paragraph 6.2.2 of Exhibit “C22” being a Chapter on discipline at Kogi State University, Anyigba, negligence of duty is a major misconduct. So also is deliberate loss or wilful damage to University property. That the Claimant admitted under cross-examination that examination scripts (such as the 13 missing scripts) are property of the University. In addition, by paragraph 6.2.3 of Chapter Six of Exhibit “C22”, aiding and abetting examination malpractice as well as abscondment from duty are tantamount to gross misconduct. Paragraph 6.3 of Chapter Six of Exhibit “C22” specified various punishments for misconduct. The punishment for any act of misconduct in the University under paragraph 6.3 of Chapter Six includes dismissal.

The Learned SAN contended that the evidence led by the Defendants in this case overwhelmingly shows that the Claimant who was the Chief Examiner by virtue of his appointment as Acting Head of Department of Sociology could not account for 13 missing scripts despite being queried and/or called upon to produce them. He recounted the evidence led by the defence with respect to the exam malpractice, missing script and failure to hold meetings including Exhibit “D12”, “D13” and “D14”

The Learned SAN then recounted the proceedings and exhibits tendered to prove how the Claimant absconded form the university after applying for sabbatical and same was refused by the University. He re-echoed the fact that the Claimant worked at Federal University, Lafia and was paid salaries for April, May and June 2013 under the pretext of sabbatical without permission and later returned to the Kogi State University in August 2013.

In conclusion, the Learned SAN respectfully urged this Honourable Court to hold that from the facts and circumstances of this case, the Defendants were justified in dismissing the Claimant.

With respect to issue four, Learned SAN adopted the arguments canvassed for issues two and three and added that the law is settled that he who asserts must prove. He cited Section 131 of the Evidence Act, 2011 and the cases of NATIONAL BANK OF NIGERIA LIMITED V. UCHE CHIKE HOLDINGS LTD & 1 OR (2004) 13 NWLR (PT 891) PG 436 AT 454 – 455 PARAS. H – A, 456 PARAS. F – G; J. S. YUSUF & 4 ORS V. DORNER AVIATION NIGERIA DIEP LTD (2004) 10 NWLR (PT. 880) 1 AT 11 PARA. F.

The Learned SAN then posited that the Claimant is tenaciously relying on his Notice of Withdrawal of service dated 26^th March, 2013 which was tendered in evidence and admitted as EXHIBIT C5 to seek a declaration that he was a staff of the 1^st Defendant from 31^st October, 2006 to 31^st March, 2013.

He further submitted, with all due respect, that the same Claimant made a nonsense of that Notice of Withdrawal of Service by a supervening letter dated 30^th August, 2013 which was tendered in evidence and admitted as EXHIBIT D7. In EXHIBIT D7, the Claimant left no one in doubt that he had totally and irredeemably jettisoned the idea of withdrawing his services from the 1^st Defendant. In fact, in EXHIBIT D7, the Claimant presumptuously informed the Vice-Chancellor of the 1^st Defendant that he had resumed his official duties with effect from 21^st August, 2013. Under that circumstance, it is spurious and incomprehensible for the Claimant to turn around to assert that he was only a staff of the 1^st Defendant from 31^st October, 2006 to 31^st March, 2013.

Also, the Learned SAN referred this court to the record of proceeding wherein the Claimant admitted that he does not have any acceptance of his withdrawal of service and that the acceptance in writing is a requirement under the scheme of service.

He submitted further that the Claimant who abandoned his Notice of Withdrawal of Service and voluntarily came back to the University in August, 2013 cannot turn around to present a different picture at this stage for the simple reason that the Claimant cannot approbate and reprobate at the same time citing the case of ASABORO V. PAN OCEAN OIL CORP. (NIG.) LTD. (2017) 7 NWLR (PT.1563) 42 AT 57, PARAS. D – E.

He added that the Claimant should not be allowed to benefit from his own wrong and cited the case of ENEKWE v. I.M.B (NIG.) LTD. (2006) 19 NWLR (PT.1013) 146 AT 180 – 181, PARAS.H – B.

Learned SAN contended further that CHAPTER 14(1) and 14.2 of KOGI STATE UNIVERSITY, ANYIGBA CONDITIONS AND SCHEMES OF SERVICE FOR SENIOR STAFF, 2008 tendered as EXHIBIT C22 which the Claimant is relying upon does not inure in his favour for the simple reason that the Claimant himself did not comply with the said CHAPTER 14(1) and 14.2. For instance, by Paragraph 14.1(i), Chapter 14 of EXHIBIT C22, a staff wanting to resign his appointment must do so in writing through the Head of Department to the Registrar giving at least three (3) months Notice or payment in lieu and the Registrar’s acceptance in writing to the staff. EXHIBIT C5 which is the purported Notice of Withdrawal of Service by the Claimant was never addressed to the Registrar of the 1^st Defendant through Claimant’s Head of Department. In fact, what the Claimant tendered in this case is stigmatized as an advanced copy addressed to the Vice-Chancellor of the 1^st Defendant and not the Registrar of the 1^st Defendant. EXHIBIT C5 is dated 26^th March, 2013 and was to take effect from 1^st April, 2013. Invariably, the Claimant did not give three (3) months notice as required by Paragraph 14.1(i), Chapter 14 of EXHIBIT C22. He also did not pay three (3) months salary in lieu of notice as conceded under cross-examination. By Paragraph 14.1 (vi) Chapter 14 of EXHIBIT C22, a member of staff who resigns in contravention of the provisions of Paragraph 14.1 (i – iv), shall have his appointment terminated. EXHIBIT C22 was violated with impunity by the Claimant.

With respect to one of the reliefs being sought by the Claimant for the sum of N1,692,122.55 as outstanding Leave bonus for 2006 – 2011, Learned SAN argued that this claim is in the region of Special damages which is required to be strictly pleaded and proved. He cited the case of AHMED v. CBN (2013) 14 NWLR (Pt. 1339) 524 at 546 PARAS. F – G. he noted that the Claimant conceded that he did not give a breakdown of the figure throughout his Claim as well as his deposition and for that, the claim should fall like a pack of cards.

He noted further that one other fundamental blunder in the case of the Claimant is that he did not challenge the process leading to his dismissal.

Upon referring this court to several admissions made by Claimant during cross examination, he argued that evidence elicited from the Claimant under cross-examination as well as damaging evidence elicited from DW1 can be effectively utilized in this case. He cited the cases of GAJI V. PAYE (2003) 8 NWLR (PT.823) 583 AT 611and BAMGBOYE V. OLAREWAJU (1991) 4 NWLR (PT.184) 132 AT 155.

The learned SAN concluded that the cumulative implication of the foregoing is that the Claimant did not discharge the requisite burden of proof upon him, let alone entitling him to the reliefs sought. That being so, the Claimant must go home empty-handed.

The defendants therefore humbly and respectfully urged this Honourable Court to dismiss the case of the Claimant in its entirety.

The claimant on his part filed his Final Written Address on the 7^th of March, 2018 and adopted same on the 16^th of March, 2018. Through the said final written address, learned Counsel to the Claimant, Adebayo Fakunle took time to recount the entire proceedings beforehe raised a sole issue for determination to wit:

whether in view of the pleadings and evidence adduced, the claimant has established his claim and is therefore entitled to the reliefs sought therein.

In addressing the sole issue, learned counsel argued against selected issues addressed in the Defendants’ Final Address. On the issue of whether the claim of the claimant is statute-barred, Learned Counsel submitted in that regard that the claim of the Claimant is not statute-barred and urged the Court to so hold.

Counsel contended that time begins to run in a case when the cause of action arose and in determining whether a cause of action is disclosed, the court is to confine itself to the Writ of Summons and statement of Claim. Learned Counsel cited the case of MILITARY ADMINISTRATOR OF BENUE STATE & ORS. V. CAPTAIN CLEMENT ABAYILO (2001) FWLR (PT 45) 602 @ 615 and SEVEN UP BOTTLING COMPANY v. ABIOLA & SONS (2001) 13 NWLR (PT 730) 469 @ 495 Paras C-E, to establish the meaning of cause of action.

Learned Counsel further contended that the claimant by his general form of complaints and statement of facts is challenging Exhibit C16 (letter of dismissal dated 28^th October, 2013) and that as at April 1, 2013, there was nothing to contend because, the fact that the claimant wrote a letter dated 26^th March, 2013 notifying the defendants of the withdrawal of his services from them does not make the cause of action arise there from as there was nothing to dispute about as at that time. That the defendants’ reply of 23/4/2013 (both Exhibits C7 and C9) to Exhibits C5 and D3 has not been issued or served on the claimant as at April 1, 2013, and in exercising his fundamental right, the claimant having submitted his withdrawal letter decided to move on with his life without contention. The claimant through his claim is urging this Honourable court to order the defendants to withdraw their letter dated 28^th October, 2013 (Exhibit C16) and confirm his withdrawal from the services of the Defendants.

Learned counsel posited that from October 28, 2013 till January 24, 2014 is less than the three months prescribed by the Public officers Protection Law and urged the court to hold that this action was brought within time. He cited the case of A. G. RIVERS STATE V. A.G. BAYELSA STATE & ANOR (2012) 7 SC (PT II) 110 @ 119 especially at page 140 (lines 22-26).

Learned Counsel further contended that the claim of the Claimant as stated in paragraph 1.1.c above is for the money worked for and same cannot be statute –barred as canvassed by the Defendants Counsel. Counsel cited the case of OSUN STATE GOVERNMENT V. DALAMI NIG. LTD (2007)3 SC (Pt. 1) 131at page 147 especially at 148.

With regards to the issue of 13 missing Scripts, Learned Counsel submitted that the contention of the Defendants that the Claimant is in possession of the 13 missing scripts is not true and should be discountenanced. He argued further that the law is that, he who asserts must prove and the defendants have not been able to establish their claim.

He posited that from the three reports presented by the Defendants, i.e. Exhibits D12, D13 & D14, the claimant was never indicted to be in possession of the scripts; rather, their claim is just a misguided passion to unjustly indict the Claimant for no just cause or reason. He noted that by Exhibit C12, (Internal memo dated 5^th March, 2013 titled, production of missing scripts), the Claimant was requested to produce the 13 missing scripts within 24 hours, to which the Claimant responded on the 6^th March, 2013 (via Exhibit C6), that the scripts were not with him and also attached to his said response an internal memo dated 4^th March, 2013 which he had earlier on written to the lecturer who taught the course (Soc 405), in person of Dr. Chukwuemeka Oteh to produce the scripts. This is also confirmed by DW during cross examination when he said that the Claimant responded on 6^th March but then said that the said response did not answer the question.

Counsel submitted on this issue that the burden of establishing a fact lies in the first instance on the party who asserts the affirmative of that particular fact and cited Section 132 of the Evidence Act 2011 and the case ofVEEPEE IND. LTD V. COCOA IND. LTD (2008) 4-5 S.C. (Pt. 1)page 116 @ 132-133.

With regards to ‘whether having regard to the facts and circumstances of this case, the Defendants were justified in dismissing the Claimant on ground of abscondment from his duty post inter alia’, learned Counsel submitted that the first question that readily comes to mind is, was the Claimant guilty of examination malpractices as alleged in the Defendants written address and stated in Exhibit C16? He submitted that the answer is in the negative because, from the record, and evidences elicited during cross examination of DW, he confirmed that Dr. Oteh taught the course (Soc 405), (see page 26 of the record) which is the subject matter of this problem, there was nowhere in the reports, Exhibits 12, 13, & 14 or anywhere whatsoever where the claimant was said to have altered, tampered with, or mutilated or rather personally involved in the conduct of the examination for SOC 405, then how come he is alleged of being involved in examination malpractice. He posited that it would have been a different issue if he were to be involved in what transpired during the examination period.

With regards to negligence on the part of Claimant, Learned counsel submitted that the Defendants were fully aware of the negligence they turned around to level allegation against the Claimant about same, yet, they remained docile till the time they could not contain it, and thereby turned it against the Claimant when even the DW1 was in the right position to take the bull by the horn and ensure strict compliance with the lay down principles guiding effective performance of a staff.

On issue of abscondment, the Learned counsel reiterated that it is also on record that the Claimant has by exhibit C5 made himself clear by indicating his intention to disengage himself from the services of the Defendants and also in fulfilment of the requirements for disengagement as contained in Exhibit C22, Chapter 14. 1 (1) and 14.2 therein and the Defendants were not right in refusing same.

Learned Counsel provided the meaning of the word “abscond” as defined according to Oxford Advanced Learner’s Dictionary, International Student’s Edition as “To escape from a place that you are not allowed to leave without permission OR “to leave secretly and take away with you something, especially money that does not belong to you”. He then submitted that going by the DW definition and the dictionary definition, the Claimant did not leave without permission or secretly, he left on notice. He referred the court to Exhibit C5 and urged the Court to so hold.

Learned Counsel also referred this court to what he considered as inconsistencies of the Defendants’ case in respect to the issue of pay slip and whether the Claimant was paid for April and submitted that since the bursar is the only person who can validly confirm whether any salary payment was made or not, and he is a public officer, he ought to have been called to resolve the conflict and once he was not called, the court should attach no probative value to the said evidence and allegation. Counsel cited the case of EJEZIE & ANOR. V. NWABEZE & 2 ORS. (2008) 4-5 S.C. pt 1, pg 3.

With respect to salaries received by the Claimant at Federal University Lafia for April, May and June 2013, Learned Council argued that the Claimant stated on cross examination that sabbatical is not an appointment and that position is confirmed by Chapter 7. 3. 4 (iii) of Exhibit 22 thus:

7.3.4 (iii) – Additional remuneration may be earned from the host institution where the staff is spending the sabbatical leave.

On the procedure for the Dismissal of the Claimant, Learned Counsel submitted that the procedure adopted by the defendants in arriving at their conclusion of dismissing the Claimant is wrong, it is both illegal and a nullity and humbly urged the court to so hold. He cited the case of CENTRAL BANK OF NIGERIA V. IGWILLO (2007) 25 WRN 1 @ 20 paragraph 35 line 35-40 and OLORUNTOBA –OJU V. ABDU-RAHEEM (2009) 26 WRN 1 @18 to posit that the employment of Claimant is with statutory flavour.

Counsel contended that the Claimant was never issued with any query, and was never given any warning by the defendants before arriving at their conclusion of dismissing the claimant. During cross examination of DW by the Claimant Counsel on whether any query was ever issued to the claimant, the witness said he issued oral query but no written query which is contrary to the provision of section 6.4.1 of Exhibit C22.

Learned Counsel added that assuming without conceding that the Claimant appeared before three different panels as contained in Exhibit D12, D13, D14, it is his submission that the Claimant did not appear before the panels as an accused person but as a witness, as the main culprits were Dr Chukwuemeka Oteh and Ms Uchenna Ogbuke. The mere fact that the Claimant appeared before panels and senior staff disciplinary committee and the governing council of the University does not make the procedure a proper or valid one and he humbly urged the court to so hold.

Counsel concluded that the Claimant has successfully made out his claims as contained in his General form of Complaints and statement of facts and urged the court to find for the Claimant.

By way of reply, Counsel to the Defendants, P.A. Akubo (SAN) responded to the issues canvassed by the Counsel to the Claimant. The contentions are not of particular difference from the position maintained in the Final Written Address although with fresh authorities and except for issues relating to attack on the characters of the Defendants by way of use of language by the Learned Counsel to the Claimant which he did apologize for in the course adoption of the address.

That being said, I have painstakingly evaluated and understood all the processes filed by learned Counsel for the parties in this suit. I have reviewed the testimonies of the witnesses called on oath, watched their demeanor and carefully evaluated all the exhibits tendered and admitted. I also heard the oral submissions of learned Counsel for either side while adopting their final written addresses.

Arising from the Pleadings in respect of the suit; the Exhibits tendered in prove of the case for both parties and the final written addresses and the arguments made therein, the following are the issues for the determination of this court:

Whether or not the suit of the Claimant as presently constituted is statute barred thereby depriving this court of jurisdiction.
Whether having regards to the facts of the case, the Defendants validly dismissed the Claimant from service instead of approving the Claimant’s letter of withdrawal from service.
Whetherin view of the resolution of issue two, Claimantis entitled to the reliefs sought.

There is no gainsaying that issue one, which is “whether or not the suit of the Claimant as presently constituted is statute barred thereby depriving this court of jurisdiction”, touches on the jurisdiction of this court and by all means deserves to be treated first. See the case of OBIUWEUBI V. CENTREL BANK OF NIGERIA (2011) 7 NWLR 465 where the Supreme Court held that:

“Jurisdiction is a threshold matter. It is very fundamental as it goes to the competence of the Court to hear and determine a suit. Where a court does not have jurisdiction to hear a matter, the entire proceedings no matter how well conducted and decided would amount to a nullity. It is thus mandatory that courts decide the issue of jurisdiction before proceeding to consider any other matter. See: Bronik Motors Ltd and another v Wema Bank Ltd. 1983 1 SCNLR p.296; Okoya v. Santilli 1990 2 NWLR Pt.131 p. 172; Madukolu v Nkemdilim 1962 1 ANLR Pt.1 p.587.” Per Rhodes-Vivour, J.S.C.(P. 23, paras. B-E)

In line with the above authority, I shall consider the contention of the Learned SAN, P.A. Akubo, counsel to the Defendants who contended that the suit of the Claimant instituted on the 24^th of January, 2014 is statute barred. In support of his position, he referred this court to paragraph 8 of the statement of fact and the admission of the Claimant during cross examination that before he filed his case in January 2014, more than 6 months had elapsed when the university refused to accept the withdrawal of service and that he also want this court to declare that he was a staff from 31/10/2006 to 31/3/2013. To the learned SAN, the cause of action of the Claimant arose on the 1^st of April, 2013 when the letter of withdrawal of service served on the Defendants by the Claimant was to take effect. He then cited section 2 (a) of the Public Officers Protection Law, Laws of Northern Nigeria, 1963 and several case authorities captured above to say that the three months provided by law is spent and this court lacks jurisdiction to entertain the suit.

Counsel to the Claimant in reaction posited that that the cause of action in this case arose much later on October 28, 2013 when Exhibit C16 (Dismissal letter) was issued to the Claimant contrary to the submission of the Learned SAN to the Defendants that the cause of action arose since 1^st April, 2013.

To address this issue, the question is what is a cause of action. The court in the case of FBN PLC & ORS v. NTIA & ORS (2014) LPELR-24104(CA) restated the expositions of the Supreme Court on cause of action to the effect that:

“In COOKEY V FOMB (2005) 15 NWLR (Pt. 947) 182, the Supreme Court gave the meaning of cause of action as follows:

“A cause of action is the bundle or aggregate of facts which the law will recognize as giving the plaintiff a substantive right to make the claim for the relief or remedy being sought…”

In NEPA vs. OLAGUNJU (2005) 3 NWLR (Pt. 913) 602, the Supreme Court held:

“A cause of action means:

(a) a cause of complaint;

(b) a civil right or obligation for determination by a court of law; and

A cause of action is indeed a factual situation which enables a person to obtain a remedy from another in court with respect of the injury.

Secondly, a cause of action matures or arises on the date or from the time when a breach of any duty or act occurs which warrants the person thereby injured or the victim who is adversely affected by such breach to take a court action in assertion or prosecution of his legal right that has been breached.” Per MUSTAPHA, J.C.A. (P. 30, paras. A-F)

To find the cause of action, it is settled law that it is to be sought from the writ of summons and statement of claim which in this case is the Complaint and statement of fact. The Court of Appeal provided this guide in the case of PASTINOR INVESTMENT COMPANY LIMITED & ANOR v. BANK OF THE NORTH & ANOR (2014) LPELR-23622(CA)by providing that:

“…to determine whether or not there is a cause of action, that is, recognizable right(s) of the Plaintiff infringed or violated by the act or conduct of defendant, recourse has to be had to the writ of summons and statement of claim of the Plaintiff, only, not to the motion of the defendant or what the defendant imagines as the cause of action. See the case of F.U.M.B. LTD VS. AEROBELL NIG LTD (2005) ALL FWLR (Pt. 281) 1651 at 1677; of MOYOSORE VS. GOV. OF KWARA STATE (2013) NWLR (Pt. 1293) 242; (2011) LPELR 8813 (CA); GUINNESS (NIG) PLC vs. SKA. NIG LTD (2012) 18 NWLR (Pt. 1331) 179.” Per MBABA, J.C.A. (P. 26, paras. D-G) –

In the light of these authorities, I have considered the Complaint and statement of fact filed by the Claimant on the 24^th of January, 2014. For sake of clarity, the reliefs sought by claimant as captured in the statement of fact at paragraph 38 (a) – (e) makes it a lot easier to decipher the cause of action. The highlight deducible from the said paragraph which has been earlier reproduced above reveals that the Claimant wants this court to first declare that he was an employee of the 1^st Defendant between31/10/2006 to 31/3/2013 having submitted to the Defendants on the 26^th of March, 2013 a letter of withdrawal of service. Then the court should take into account the letter of withdrawal of service written to the 1^stDefendant and direct the Defendants to withdraw the letter of dismissal served on him to terminate his employment on the 28^th of October, 2013 and in place of the letter of dismissal, issue to him a fresh letter approving his withdrawal of service. He also wants the court todirect the Defendants to publish both the withdrawal of the letter of dismissal and the letter of approval of his withdrawal of service.

The statement of fact made clear that the Claimant served the Defendants with a letter dated 26^th of March, 2013(Exhibit C5) informing the Defendants that he wishes to withdraw his services with effect from 1^st April, 2013. The Defendants replied the Claimant via a letter dated the 23^rd of April, 2013 (Exhibit C7) informing him that his request for withdrawal of service was not approved and added that he will not be granted withdrawal until the issue of 13 missing scripts are resolved and advised him to take it in good faith. He claimed he did not receive this reply until 21^st August, 2013. (see paragraph 17) of the statement of fact.

Before the Claimant received the reply on the 21^st of August, 2013, he had written another letter (Exhibit C18) to the Vice Chancellor of the 1^st Defendant on the 15^th of August, 2013 reminding him of his letter of the 26^th March, 2013 wherein he withdrew his service and that he is yet to get a reply but then, he is requesting to know if his services are still needed in the University. Eventually however, the Defendants served the Claimant on the 28^th of October, 2013 a letter of dismissal from service (Exhibit C16). Upon that, the Claimant’s solicitor, Adebayo Fakunle wrote to the Defendants a letter dated the 25^th November, 2013 (Exhibit C14) to demand that the University withdraw their letter of dismissal written to the Claimant and approve the Claimant’s letter of withdrawal from service and gave notice that upon failure to accede to their request within 30 days, the Claimant would institute a legal action. The Claimant thereupon instituted this suit on 24^th January, 2014.

Goingby this highlight, there is no gainsaying that the issue of withdrawal of serviceis intertwined with the eventual dismissal. To treat the refusal to approve the withdrawal as a distinct issue and in isolation would be irreconcilable with the reliefs sought by the Claimant who wants to negate the dismissal from service and validate his withdrawal of service.

For clarity, as mathematically correct as the answers seem, the admission by the Claimant under cross examination that Between 31/03/2013 and 24^th January, 2014 when he filed this action is more than a period of 9 monthsand the fact that before he filed his case in January 2014, more than 6 months had elapsed from when the university refused to accept the withdrawal of servicedoes not by all means impinge the accrual of cause of action deducible from the combined appraisal of the reliefs sought by the Claimant and the entire set of facts found in the Statement of facts.

Consequent upon the authority of the court that a cause of action is a bundle of fact and matures or arises on the date or from the time when a breach of any duty or act occurs which warrants the person thereby injured or the victim who is adversely affected by such breach to take a court action in assertion or prosecution of his legal right that has been breached, this court is of the view that the cause of action for the Claimant in this suit matured on the day he was served his letter of dismissal i.e. the 28^th of October, 2013. It was on that date his injury reached a climax.It was on that date the battle between a dismissal and withdrawal of service ensued. A battle which is the core of this suit considering the reliefs sought by the Claimant.

The Court in AJAYI V ADEBIYI (2012) 11 NWLR (Pt.1310)p.146 noted authoritatively that the yardsticks for determining whether an action is statute barred are:

The date when the cause of action accrued;
The date of commencement of the suit as indicated on the writ of summons (in this case the Complaint and statement of fact); and
The period of time prescribed to bring an action to be ascertained from the statute in question.

Having resolved that the cause of action matured on the 28^th of October, 2013, this suit was commenced on the 24^th of January, 2014. This means the period is 4 days shy of 3 months. That clearly puts the suit within the statutory 3 months period specified under section 2 (a) of the Public Officers Protection Law of Northern Nigeria.

Consequently it is the holding of this court that this suit as presently constituted is not statute barred and this court is therefore vested with jurisdiction.

I move quickly to issue two, which is “whether having regards to the facts of the case, the Defendants validly dismissed the Claimant from service instead of approving the Claimant’s letter of withdrawal from service”.

Before I proceed however, I should address the status of Exhibits C23(a) – (e) (student attendance list) and C24 (Kogi State University, Pay Slip) which were admitted under protest. From the contention at the point of tendering the documents, Learned SAN, P.A. Akubo, Counsel to the Defendant argued in respect of Exhibit C23 (a) – (e) that the Claimant merely listed attendance in his list of documents but is attempting to tender 5 copies of attendance. Also, that the Claimant ceased to be a staff on the 1^st of April, 2013 and therefore cannot tender a document dated 9^th April, 2013. Counsel to the Claimant, Adebayo Fakunle argued that the documents are pleaded and referred to in paragraphs 22-24 of the statement of fact.

With respect to exhibit C24, Learned SAN, P.A. Akubo argued that the Document is a computer generated evidence that requires compliance with section 84 of the Evidence Act, 2011 and also a public Document of which the only copy admissible is a CTC. He relied on sections 89, 90 (c) and 104 of the Evidence Act, 2011.

In the case of Avong v K.R.P.C. Ltd (2002) 14 NWLR (Pt.788) pg 508 @ 530-1 Para G-C the court held with regards to admissibility that:

“it is my humble view that admissibility is a matter of law. The entire law of evidence is dependent, to a large extent on the rules governing admissibility and inadmissibility of evidence. Whether a piece of evidence is admissible or not is dependent on whether the fact to be established by the evidence is relevant to the facts in issue. Relevance is judged by the provisions of the Evidence Act and not by any rules of logic. As a general rule, it is only facts which are relevant to facts in issue or some other facts relevant to the fact in issue that can serve as the foundation for the admissibility ofa piece of evidence. For a fact or piece of evidence to be admissible in evidence, it must be relevant. As Eso, J.S.C. said in Torti v. Ukpabi (1984) 1 SCNLR 214 at 236-237,”I think that admissibility should be based on relevance ….. once a matter, be it a document or oral evidence is relevant, it is admissible ….. For evidence documentary or otherwise to be admissible, it is sufficient that proper ground of its relevance is laid.”

With respect to Exhibit C23 (a)- (e), I have considered paragraph 22 -24 of the statement of fact and taken adequate view of the document in question. The date on the document, which is 9/4/13 precedes the date of institution of this suit. It is not made during or after this suit was instituted. It is only such documents made pendente lite that may not be admitted. See the case of N.S.I.T.F.M.B. v. Klifco Nig . Ltd. (2010) 13 NWLR (Pt.1211) 307 S.C. The document is considered relevant to the fact in issue and have been pleaded and so deserves to be admitted and same is hereby admitted in evidence.

That notwithstanding, the weight to be attached to the said document is a different issue altogether to be considered by this court in due course. This position has been stated in the case of Abubakar v. Chuks (2007) 18 NWLR (Pt.1066) 386where the court held that:

“Relevancy and weight are in quite distinct compartments in our law of evidence. They convey two separate meanings in our adjectival law and not in any form of dovetail. In the order of human action or activity, in the area of the law of evidence, relevancy comes before weight. Relevancy, which propels admissibility, is invoked by the trial Judge immediately the document is tendered. At that stage, the Judge applies sections 6, 7, 8 and other relevant provisions of the Evidence Act to determine the relevance or otherwise of the document tendered. If the document is relevant, the Judge admits it, if all other aspects of our adjectival law are in favour of such admission. If the document is irrelevant, it is rejected with little or no ado. Weight comes in after the document has been admitted. This is at the stage of writing the judgment or ruling as the case may be.” Per Tobi, JSC.(P.13, paras. C-G)

It was also held in Haruna v A.G. Federation (2012) LPELR-7821 (SC) that:

“The fact that evidence is admissible does not mean that it has weight. It may not have any probative value or any weight at all though admissible.”

Consequently, the weight to be attached to the said document shall be considered in due course.

With regards to exhibit C24, a pay slip issued to the Claimant by the 1^st Defendant. The claimant in paragraph 11 of his statement of fact avers that:

The Claimant states that after submitting his Letter of Withdrawal of Service to the University in March 2013, “a pay slip” bearing his name showing that the sum of Two Hundred and Forty Eight Thousand, Nine Hundred and Seventy-Seven Naira, Thirty Five Kobo (N248, 977.35) representing the Claimant’s salary for the month of April 2013 was delivered to him without being paid with the said sum. The pay slip for April 2013 is hereby pleaded.

The above indicates that the said pay slip emanated from the custody of the Claimant having being personalized for him as a pay advice of his salary. The question then is whether the document is a public document which requires a CTC. The court in the case of Shyllon & Anor. V. University of Ibadan (2007) 1 NWLR (Pt.1014) pg.1made an exposition of section 109 of the then Evidence Act which is in pari material with section 102 of the current Evidence Act 2011 that:

“Section 109 of the Evidence Act provides as follows – ‘The following documents are public documents – (a) Documents forming the acts or records of the acts – (i) Of the sovereign authority; (ii) Of official bodies and tribunals; and (iii) Of the public officers, legislative, judicial and executive, whether of Nigeria or elsewhere; (b) Public records kept in Nigeria of private documents”. In a nutshell, the attributes of a public document is that it is created over a public matter, preserved for the good of the public and open for public inspection and use – Law & Practice of Documentary Evidence: by Ike D. Uzo.” Per AUGIE, J.C.A. (P.11, Paras.C-F)

The court in the same case also stated that “A public document must be brought into existence and preserved for public use on a public matter and must be open to public inspection”.

I find it difficult to hold the view that the said Pay Slip has the attributes of a public document i.e. if it was made for public use or intended to be opened to the public even though produced by a public body. Moreso, the document emanated from the custody of the Claimant. I am therefore inclined to hold that the said Exhibit C24 is not a public document.

I have also considered section 84 of the Evidence Act, 2011 and found that the print out pay slip was not generated by the Claimant and in that light, it would be asking for the impossible for him to comply with section 84 of the Evidence Act, 2011.

In the light of the above, the said Exhibit C24 having also been pleaded, is held to be relevant to the fact in issue in this case and is also hereby admitted in evidence.

Back to the main issue, the fact that the Claimant was an employee of the Defendants is not in issue. This fact is concretized by Exhibit C2, a letter of offer of appointment as senior lecturer dated 31^st October, 2006. By the said letter, the 7^th paragraph states to the effect that either party to the employment may terminate the appointment by giving three (3) months notice or paymentof three months salaries in lieu of notice. That being said, it is also apparent that the employment is with statutory flavor considering the status of the employer as an institution of a state of the federation of Nigeria.

In C.B.N. v. Igwillo (2007) 14 NWLR (Pt.1054) 393 the Supreme Court succinctly described an employment with statutory flavour thus:

“An employment is said to have a statutory flavour when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee. Any other employment outside that category is governed by the terms under which the parties agreed to be master and servant. See Olaniyan v. University of Lagos, supra; Ogunke v. National Steel Development Authority (1974) NMLR 128; Fakuade v. O.A. U.T.H. (1993) 5 NWLR (Pt.291) 47; ldeh v.University of Ilorin (1994) 3 NWLR (Pt.330) 81; Shitta-Bey v. The Federal Public Service Commission (1981) 1 S.C. 40, Imoloame.v. WAEC (1992) 9 NWLR (Pt.265) 303; and Udo v. Cross River State Newspaper Corporation (2001) 14 NWLR (Pt.732) 116.” Per Akintan, J.S.C. (Pp. 20-21, paras. D-A).

Furthermore, the court in addressing whether the condition of service of employment which is founded on statute can be waived, held in the case of DANIEL M. OGBAJE V. ABUJA INVESTMENT AND PROPERTY DEVELOPMENT COMPANY LIMITED(2007) LPELR-11855(CA)that:

“…They are bound by those Conditions of Service. Either party cannot waive or resile from the conditions by merely wishing them away or shoving them away by a wave of the back hand. See the case of: N R. C V. Umero Supra at pgs, 277 – 278. The only way there can be a waiver is by subscribing again to another written contract with new set of conditions and terms. See the case of: Prof S. O Abdulraheem & 3 Ors. V. Prof B. J Olufeogba & 43 Ors. (2006) 17 NWLR (Pt. 1008) p. 280 at p. 325” Per OMOLEYE, J.C.A (P. 45, paras. B-E).

This suggests that the Condition of service is strictly binding on the parties to the employment.

In the instant suit, Exhibit C22 is the Conditions and Scheme of service for Senior Staff tendered by the Claimant as the regulation guiding the employment he had with the Defendants. This document is without doubt pivotal to determining whether the Defendants acted validly or otherwise in the dismissal of the Claimant rather than accepting his notice of withdrawal.

The Claimantalleged that in line with with the provisions of chapter 14 (1) (i) and 14.2 of Exhibit C 22, he wrote to notify the Defendants of the withdrawal of his service from Kogi State University with effect from April 1, 2013.

The said Chapter 14.2 provides that:

a member of staff may withdraw his service after serving for not less than 5 Years, and not up to 10 years on giving appropriate notice applicable in (14.1(i.iv) above.

While Chapter 14.1 (i) provides that:

A staff may resign his tenure and full-time appointment in writing through the Head of Department to the Registrar, giving at least three (3) months’ notice or payment in lieu and the Registrar’s acceptance in writing to the staff.

In the light of the above, I have considered exhibit C5 which is a letter of notification of withdrawal of service addressed to the Vice Chancellor of the 1^st Defendant through the Dean of Faculty of social science and through the Head, Department of Sociology dated the 26^th March, 2013. The withdrawal was to take effect from 1^st April, 2013.

While that is one leg of the requirement for retirement according to Chapter 14.1 (i) of the Condition of Service, the second leg is the acceptance in writing by the Registrar and that is not before this court. The Claimant was not given an acceptance in writing. Instead, he was served with Exhibit C7, A letter written to the Claimant by the 1^st Defendant dated the 23^rd April, 2013. The letter is titled RE- NOTIFICATION OF WITHDRAWAL OF SERVICE. By this letter, the Claimant was informed by the Registrar that his request for withdrawal of service with effect from 1^st April, 2013 was not approved. He added that the Claimant would not be granted withdrawal of service until the current issue of missing scripts of thirteen (13) final year students of Department of Sociology and other related issues are resolved.

Although the Claimant alleged he only received Exhibit C7 on 21^st of August, 2013 after he had waited for long and had written another letter, Exhibit C18 to the Vice Chancellor of the 1^st Defendant to remind him of the notice of withdrawal and also to know if his services were still needed. It is instructive to note that the conditionsand scheme of service (Exhibit C22) did not stipulate the time within which the acceptance by the Registrar must be communicated.

The question that comes to mind in relation to the above therefore is that is there any irregularity arising from the above process?. The Claimant alleged that after he had written a reminder dated August 15, 2013, which is a clear indication of conspiracy as the Defendants’ reply was surreptitiously backdated to April 23, 2013 in an attempt to indict and destroy his career because of his intention to withdraw his services from Kogi State University.The Defendants on the other hand alleged that the inability to serve him the notice early was due to the Claimant’s abscondment from the University.

Considering this assertion and denial by the Defendants, the burden is on the Claimant to prove same as section 131 of the Evidence Act, 2011 provides that:

(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

Furthermore, the court in this regard held in the case of Ajuwon v. Akanni (1993) NWLR (Pt. 316)182 that:

“Where a material fact is pleaded and is either denied or disputed by the other side, the onus of proof clearly rests on he who asserts such a fact to establish the same by evidence. An averment in pleadings is not and does not amount to evidence and must therefore be established by satisfactory evidence unless the same is expressly admitted”. PER IGUH, JSC.

Furthermore, in respect of the allegation of conspiracy, it is settled law that criminal allegations require proof beyond reasonable doubt and the burden is squarely on the party who alleges the commission of the crime. The Evidence Act 2011 by section 135 provides that:

If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
The burden of proving that any person has been guilty of a crime or wrongful act is, subject to section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action

It was held in United Bank for Africa Plc v Unisales International (Nig.) Ltd 2014 LPELR – 248283 (CA) that:

“The imputation of criminal allegations in a civil proceeding is an allegation of the commission of a criminal offence and under section 138 of the Evidence Act 2011, proof of any such allegations shall be beyond a reasonable doubt. Same as the standard required for proof of criminal allegations in a criminal court.

It is elementary rule of pleadings that fraud (in this case, conspiracy), being such a very serious allegation has to be specifically pleaded against an opponent otherwise no evidence can be led on such allegation and the allegation cannot be sustained by the court. See the old case of TEMAKLOE vs. BASSET TRADING CO. LTD (1940) 6 WACA 231

The Claimant has not placed any evidence before this court to prove that there was an irregularity or non-compliance with the refusal to accept the withdrawal of his service. The Conditions of service does not stipulate that the notice of withdrawal must be accepted and it is instructive that the reason for refusal was provided by the Defendant and I so hold.

With regards to the issue of dismissal, the Claimant alleges that he was served with Exhibit C16 (Letter of Dismissal from Service) dated the 28^th of October, 2013 and he wants this court to direct the Defendants to withdraw same and in its stead, issue an approval of the Withdrawal letter served on the Defendants on the 26^th of March, 2013. The Defendants on their part have maintained that the dismissal is justified.

The said exhibit C16 emanated from the office of the Registrar of the 1^st Defendant who stated that consequently, I have been directed by the Governing Council to convey approval of your dismissal from the services of Kogi State University, Anyigba, with effect from Friday, 25^th October, 2013, for examination malpractice, negligence of duty and abscondment from duty.

The Claimant alleges that the Exhibit C16 dismissing him from service instead of approving his letter of withdrawal from service is a calculated attempt to truncate his life career and it was borne out of a misguided passion to mar his reputation as he has not committed any offence to warrant dismissal from service.

He also contends that the issue of examination malpractice was never mentioned to him in all the panels before whom he appeared and of a fact, the letter of invitation to appear before Disciplinary committee testifies to the fact that he was asked to defend himself against the allegation of abscondment levelled against him.

To resolve this issue, I have had recourse to the relevant exhibits in this instance. Exhibit C12 tendered by the Claimant is an internal memorandum dated 5^th March, 2013 titled PRODUCTION OF MISSING SCRIPTS IN SOC 405 addressed to the Claimant. The memo bears a 13 column of students whose scripts are allegedly missing and the concluding part of the memo states that as the chief Examiner of the Department of Sociology, the Claimant is directed to produce the alleged missing 13 scripts within 24 hours and should be hand-delivered to the Registrar.

Apparently, the scripts were not produced and another letter Exhibit C10, dated 2^nd April, 2013 was written to the Claimant requesting him to respond to charges within 24 hours of receipt of the letter. The letter was received on the 21^st of August, 2013 by the Claimant. The charges read thus:

The report of submitted by the (Investigation) Panel reveals that you as the then Head of department and Chief examiner:

Did not hold regular meetings of the Departmental Board of Examiners and that you sometimes only selected some senior staff in the Department to perform the duty of the Board.
Exhibited poor handling of examination materials such as attendance sheets, answer scripts, marking schemes etc.

iii. Did not maintain adequate statistics of student enrolment per course

Could not give a proper account of the missing scripts of 13 students with the following matriculation numbers.

Upon receiving the letter, the Claimant wrote and served Exhibit C11 on the 22^nd of August, 2013 responding to the charges. Particularly in respect to the missing scripts, he stated passionately that the scripts could not be retrieved from one Dr. Oteh. He maintained theposition same under cross examination.

The storm was not over yet, as the Claimant was invited to appear before a Senior Staff Disciplinary Committee to defend himself against allegation of abscondment from duty via Exhibit C15, a letter dated the 17^th October, 2013. The Claimant duly appeared before the Committee.

Sequel to that, the Claimant was invited to appear before the Governing Council of the 1^st Defendant to clear himself of the allegations levelled against him. This was the climax before the Claimant was dismissed.

The Defendant made effort at proving that the dismissal was justified based on the alleged grounds for the dismissal to the Effect that the Claimant could not provide the 13 missing scripts which were regarded as properties of the 1^st Defendant and more particularly, the allegation of abscondment from duty.

Let me mention that in view of the contention of the Defendant, Exhibit C22 (conditions and scheme of service) provides for discipline of a staff by stating under Chapter 6.2.1, 6.2.2 and 6.2.3. three categories of misconduct. While negligence of duty and deliberate loss or willful damage to University property is under Major misconduct, abscondment from duty is under gross misconduct.

Chapter 6.3. provides for disciplinary measures as it states that:

Any staff who engages himself/herself in any act of misconduct stated in (6.2.1-3) above shall be disciplined in any or a combination of the following:

a). Querry

b). written warning (after Three queries)

c). withholding of increment

d). suspension

e). Demotion

f). Deferment of Promotion

g). Termination

h). Dismissal

i). Making good the loss or damage to university property.

The word ‘any’ in the introductory paragraph no doubt gives the Defendants the discretion to choose one or some of the disciplinary measure and is not in any particular order.

The court defined the meaning of ‘any’ in the case of APC v. OMISORE & ORS (2014) LPELR-24074(CA) to the effect that:

“Though the word “any” when used as an adjective is defined in Longman Dictionary of the English Language thus: “One or some indiscriminately, whichever is chosen”.

The Defendants decided to choose the option of dismissal to discipline the Claimant for all three allegations named in the letter of dismissal.

Of the three allegations, the most pronounced and that which is proved on a balance of probability is the abscondment from duty.

It is instructive to note that the Claimant said nothing about his application for sabbatical leave in his statement of fact until he was served withinterrogatories to which he provided answers. The said Answer is tendered by the Claimant as Exhibit C2. The Claimant also tendered Exhibit C9 which is a letter dated 23^rd April, 2013 wherein the application of the Claimant to go on sabbatical leave was not approved by the 1^st Defendant. Also, the Claimant tendered Exhibit C20 which is an offer of one year sabbatical appointment with Federal University, Lafia. From the side of the Defendant, Exhibit D3 which is a letter dated 8^th February, 2013 seeking permission to proceed on one year sabbatical to Adekunle Ajasin University, Akungba, Akoko, Ondo State, was written to the Vice Chancellor of 1^st defendant. The said document was minuted upon by the Registrar that there is an on-going investigation into examination malpractice in the Dept. of Sociology where the Claimant served as HOD and it might not be expedient to release the Claimant until the determination of the substantive case. This court finds that this is no doubt the reason why the application for sabbatical leave was refused. The Defendant also tendered exhibit D4 which was a reminder letter dated 21^st March, 2013 written by the Claimant in respect of the application for sabbatical leave. In the letter, he sought the leave to be granted with effect from 1^st April, 2013. The said Exhibit C20 shows that the Claimant despite not getting permission that he sought from the Vice Chancellor of the 1^st Defendant nevertheless proceeded for the Sabbatical leave and in fact with a University different from the one mentioned in the application for permission.

The Defendant also tendered exhibit D5, an internal Memo dated the 18^th of April, 2013 titled ‘REPORT ON DR. FEMI TINUOLA’. The memo stated among other facts that since 2^nd April, 2013, the Claimant has not been sighted at the Department and that all efforts to get his question for the courses taught in the First Semester for the forthcoming examination have equally proved abortive. The document was minuted upon by the Dean to direct appropriate lecturers to set questions and handle examinations on courses that Dr. Tinuola taught. The Exhibit D5 was followed by exhibit D6, another internal Memo dated the 24^th of April, 2013 where in the courses taught by the Claimant were re-assigned to other lecturers. The recommendation by the Acting HOD that the salary of the Claimant be stopped in view of the absence of the Claimant was also treated with immediate effect by the Registrar as minuted on the face of exhibit D6.

The Claimant himself admitted in paragraph 7 of the Answer to Interrogatories (Exhibit C21) that he assumed duty as Associate Professor on one year sabbatical appointment at the Federal University, Lafia on 2^nd April, 2013. In paragraph 15 of the same Exhibit C21 he added that he discontinued the one year sabbatical appointment on June 20, 2013 because his employer, the 1^st defendant refused to release his permission letter despite the recommendation by Dean and his Acting Head of Department.

On the 30^th of August, 2013, the Defendant wrote a letter to the Vice Chancellor of the 1^st Defendant referring him to the reply to the Claimant’s intention to withdraw his service from the 1^st Defendant and stated that he is writing to inform the Vice Chancellor that he has reported back to his official duties effective, 21^st August, 2013 when he collected the replied letter dated 23^rd April, 2013 sent to him by the University.

It is the finding of this court that the Defendant clearly made out a case of abscondment against the Claimant having proceeded on a sabbatical leave that was not permitted and I so hold.

On the probative value of Exhibit C23 (a) – (e), the Claimant presented Exhibits C23 (a) – (e), a collection of 5 attendance sheets to buttress the fact that he was at work on 9/4/2013. Probative value comes after admissibility. It is apparent that the documents are weightless considering the discrepancies on the face of the documents before the court. While the heading of the attendance sheets reads ‘soc 409 attendance list for lectures held on 9/4/2013’, two students wrote dates as 15-01-2014 alongside their signatures. This calls into question the authenticity and veracity of these documents.

It is my considered view that this clear inconsistency has diminished the probative value of the said document and I so hold.

I have earlier noted that abscondment from duty under Exhibit C22 is categorized as gross misconduct for which the employer may choose to treat with dismissal as a disciplinary measure. The court acknowledged this in the case of DR.G.S. OBO v. COMMISSIONER OF EDUCATION BENDEL STATE & ANOR. (2001) LPELR-2187(SC) when it held that:

“There is evidence on record which was accepted by both courts below that the appellant was in contravention of the rules and regulations governing his contract of service with the respondents by exceeding the period of his study leave by several years. He therefore absented himself from duty without permission for those years. This is a gross act of misconduct and a fundamental breach by the appellant of his contract of service for which he was ordinarily liable to summary dismissal. This is by virtue of the provisions of paragraphs 04201 (v) and 04202 (a) of the Civil Service Rules, 1978”.

Furthermore, the validity of the dismissal in this case is amplified by the abundance of evidence that the Claimant was given fair hearing before the dismissal was carried out.

The Claimant, Dr. Tinuola Rufus was issued with an internal memo dated the 5^th of March, 2013 where he was requested to produce 13 missing scripts within 24 hours. He was further requested to respond to charges within 24 hours via a letter dated the 2^nd of April, 2013. To this the Claimant responded. subsequently, he was invited to appear before the Senior Staff Disciplinary Committee via a letter dated the 17^th of October, 2013 and lastly he was invited to appear before the Governing Council of the University via a letter dated 24^th October, 2013. The Defendants set up investigation panels at the Management level and he appeared before appearing before the Senior staff Disciplinary Committee and Governing Council.

There is no magic wand around the concept of fair hearing. Fair hearing as a right is nothing but an opportunity to be heard. Judicial authorities are clear and settled that once there is a finding that the employee was given ample opportunity to defend himself on the allegation in issue, such an employee cannot be heard to complain of denial of fair hearing. See Imonike v Unity Bank Plc (2011) LPELR-1503 (SC) and Mommoh v CBN (2007) 14 NWLR (Pt.1055) 508 (CA)

The court in the case of MOMOH V. C.B.N.(2007) 14 NWLR (Pt.1055)504 held that:

“In the case of University of Calabar v. Essien (1996) 10 NWLR Pt.447 page 225 at 262, Iguh JSC said: “Where an employer dismisses or terminates the appointment of an employee on ground of misconduct all that the employer need establish to justify his action is to show that the allegation was disclosed to the employee and that he was given a fair hearing, that is to say, that the rules of natural justice were not breached and that the disciplinary panel followed the laid down procedure, if any, and accepted that he committed the act after its investigation”.

In the instant suit, Exhibits C10 (letter of Request to Respond to Charges dated 2^nd April, 2013), C12 (internal Memo addressed to Claimant requesting the production of missing script), C15 (Invitation to appear before the Senior Staff Disciplinary Committee dated 17^th October, 2013) and C17 (Invitation to appear before Governing Council of Kogi State University dated the 23^rd October, 2013) all gave the Claimant the right to fair hearing.

In addition, the onus is clearly on the Claimant to prove that his dismissal was wrongful. The burden is squarely on the Claimant to adduce cogent, relevant and admissible evidence in support of the assertion that his dismissal was wrongful. It is imperative for the Claimant to prove to the court the steps taken by the Defendant which made his dismissal wrongful as the court had stated in the case of AJI v. CHAD BASIN DEVELOPMENT AUTHORITY & ANOR (2015) LPELR-24562(SC) that:

“For emphasis the Plaintiff/Appellant is enjoined by law when he complains that his employment has been wrongfully terminated, he has the onus of placing before the Court the terms of contract of employment and then go on to prove in what way the said terms were breached by the employer”.

Consequent upon the above, it is the finding of this court that the Claimant has woefully failed to show how his dismissal by the Defendants is invalid and why the Defendant should be compelled to accept the letter of withdrawal of service. Issue two is therefore resolved in favour of the Defendants to the effect that having regards to the facts of this case, the dismissal of the Claimant was not wrongful as the Defendants validly dismissed the Claimant from service and I so hold.

Issue three is “whether the Claimant in view of the resolution of issue two, Claimant is entitled to the reliefs sought”. I shall address this issue by considering the reliefs sought by the Claimant in turns.

The claimant by relief ‘a’ is asking for a declaratory relief which is dependent of the strength of the Claimant’s case and not the weakness of the case of the Defence.

The court in NZURIKE v. OBIOHA & ANOR.(2011) LPELR-4661(CA ) held that:

“When a declaratory relief is sought, it is to make the court declare as established a legal and factual state of affairs in respect of the cause of action. Thus the courts will not readily without good and sufficient evidence exercise its discretion to grant a declaratory order. That is why declaratory reliefs cannot be granted without oral evidence even where the Defendant expressly admits liability in the pleadings. See A.G. CROSS RIVER v. A.G. FEDERATION (2005) 6 SCNJ 152; OGOLO v. OGOLO (2006) 2 SCNJ 235.” Per OGUNWUMIJU, J.C.A. (P. 35, paras. E-G)

Going by this authority, the Claimant has placed inconsistent evidence before this court to grant the said declaration which is:

A DECLARATION that by the Defendants’ letter of 31^st October, 2006 with Reference No. KSU/R/APP/PRO/VOL 1, the Claimant was an employee of the Defendants from 31^st October, 2006 to 31^st March, 2013.

The Claimant without doubt became an employee of the 1^st Defendant on the 31^st of October, 2006 as in Exhibit C2. However, this court cannot pronounce 31^st of March, 2013 as the date he ceased being an employee of the 1^st Defendant owing to lack of evidence to support same. While the Claimant submitted a letter (exhibit C5) withdrawing his service which he expects to take effect from 1^st April, 2013,he did not get an approval/acceptance of the said withdrawal of service and has not placed such approval/acceptance before this court to warrant the declaration. You cannot place something on nothing and expect it to stand; it will surely collapse. Per Lord Denning in Benjamin Mc Foy v United Trading Company Ltd (1962) Ac 152.

Also, the said Claimant stated in his paragraphs 22,23 and 24 of Witness Statement on Oath of 24^th January, 2014 adopted as his oral testimony and marked as C1, that he was in Kogi State University from March 26, 2013, till May 2, 2013. He also claimed to have been in the classroom in Kogi State University on 9/4/2013 and tendered Exhibit C23 (a)-(e) in support of same. These are clear inconsistencies in asserting that he ceased to be an employee on 31^st of March, 2013.

Consequently, in the absence of any cogent and reliable evidence to show that the said withdrawal was approved by the 1^st Defendant; there is no basis to grant this declaration/claim.

The right of an employer to discipline an employee remains preserved. I have no hesitation in refusing this claim and I so do.

With regards to Reliefs (b), (d), (e) and (f) the resolution of issue two by this court clearly shows that the Claimant failed to prove that his dismissal was wrongful or illegal and that the refusal to accept the letter of withdrawalwas in contravention of the Conditions and Scheme of service. The court in UTSU V. UJU(2011) LPELR-3980(CA) noted that “In civil litigations a fact is taken as proved if it was admitted or if it was established on a balance of probabilities.

Furthermore, the court in Borishade v. N.B.N Ltd (2007) 1 NWLR (Pt. 1015) 217 at 255 paras. D – E; Pp. 256 paras. D – F (CA) held that:

At law, at the commencement of hearing of a claim the onus of proof is on the plaintiff not on the defendant. That onus does not shift on appeal. In other words, the onus of proof in a civil claim is on the plaintiff who must prove his claim or fail. At no stage in the proceedings or on appeal does the defendant owe a duty to the plaintiff to prove any issue. The burden is on the plaintiff to establish his claim. If the plaintiff cannot succeed on the strength of his claim he should fail. Thus, a plaintiff in a trial court who alleges unlawful dismissal of his employment has the onus of proof and must prove that his dismissal was wrongful or unlawful or fail, not the defendant. [Mba-Ede v. Okufo (1990) 2 NWLR (Pt. 135) 787; Inyang v. Eshiet (1990) 5 NWLR (Pt. 149) 178 referred to.]

For avoidance of doubt, reliefs (b), (d), (e) and (f) are:

A DECLARATIONthat the act or gesture of the Defendants in personally deciding to issue a letter of Dismissal from service against the Claimant instead of approving the Claimant’s letter of withdrawal from service in compliance with the provisions of chapter 14 (1) (i) and 14.2 of Kogi State University Anyigba’s conditions and Schemes of service for Senior Staff 2008 is unfair, wrongful and illegal.

AN ORDER directing the Defendants to withdraw the letter of Dismissal dated 28^th October, 2013 issued to the Claimant and to re-issue a fresh letter of approval of withdrawal of service to the Claimant devoid of being adjudged guilty of any offence whatsoever, effective 1^st April, 2013.

AN ORDER directing the Defendants to publish the withdrawal of letter of Dismissal dated 28^th October, 2013 issued to the Claimant and the Re-issuing of a fresh Letter of Approval of withdrawal of Service to the Claimant devoid of the being adjudged guilty of any offence whatsoever, in (i) the Kogi State University News Flash (ii) Graphic Newspaper (iii) Any other National daily newspapers in Nigeria.
The sum of N5,000,000.00 being general damages for the wrongful issuance of letter of dismissal from service instead of approval of withdrawal from service.

The dismissal of the Claimant by the Defendant was a valid exercise of the power of an employer to exercise disciplinary control over its employees. The right of an employer to discipline an employee is inherent in the nature of relationship existing between the employer and employee. One of the ways of exercising that right is by dismissal which option the Defendant took in the instant suit. Having so found, this court cannot order reliefs (b), (d), (e) and (f). To grant such will amount to restricting the power of an employer to lawfully discipline its employee.

Therefore, the Claimant is not entitled to the reliefs and same are hereby refused.

With regards to relief (c) which is:

AN ORDER directing the Defendants to pay the Claimant his outstanding leave bonus for 2006 to 2011 being N1,692,122.55.00 only, being payment for accumulated leave deferred for the years 2006, 2007, 2008, 2009, 2010, 2011, which have not been paid for, after the deduction of the amount required for the withdrawal of service.

The Defendant denied this relief and argued that this claim is in the region of Special damages which is required to be strictly pleaded and proved. Citing the case of AHMED v. CBN (2013) 14 NWLR (Pt. 1339) 524 at 546 PARAS. F – G. the claimant’s counsel did not address this contention in his final address and the Claimant himself admitted he did not provide the break-down.

As against the position of the Learned SAN, counsel to the Defendants, this court regards the claim as liquidated demand. The court in U.P.S. Ltd. v. Ufot (2006) 2 NWLR (Pt.963)1made an exposition on such money demand when it held that:

“In Maja v. Samouris (2002) 7 NWLR (Pt. 765) 78 at 102, (2002) 9 NSCQR 546 at 563, Iguh JSC; held that: “A liquidated demand is a debt or other specific sum of money usually due and payable and its amount must be already ascertained or capable of being ascertained as a mere matter of arithmetic without any other or further investigation. Whenever therefore, the amount to which a plaintiff is entitled can be ascertained by calculation or fixed by any scale of charges or other positive data, it is said to be “liquidated” or made clear. Again, where the parties to a contract, as part of the agreement between them, fix the amount payable on the default of one of them or in the event of breach by way of damages, such sum is classified as liquidated damages where it is in the nature of a genuine pre-estimate of the damage which would arise from breach of the contract so long as the agreement is not obnoxious as to constitute a “penalty” and it is payable by the party in default. The term is also applied to sums expressly made payable as liquidated damages under a statute…”

While it is clear that the money demanded under this relief is a liquidated money demand, the ascertainment of same is not made possible for lack of proof. How did the Claimant arrive at the said sum for 2006 to 2011? How much is due for a year and having said that the leave was approved, is there any such approval before this court wherein the Defendants acknowledge the sum?.

Again this relief is caught up by failure of proof. The evidence Act has made it clear that the burden of proof lies on the party who would fail if no evidence were given on either side.

The supreme Court in Uzokwe v. Densy Ind. (Nig.) Ltd. (2002) 2 NWLR (Pt.752) Pg. 528 at 544 Para C – D held that:

In civil cases, the ultimate burden of establishing a case is as disclosed on the pleadings. The person who would lose the case if on completion of pleadings and no evidence is led on either side has the general burden of proof.See Elemo & Ors. v. Omolade & Ors (1968) NMLR 359. See also section 137(1) of the Evidence Act (now section 133 (1) of the Evidence Act 2011). Per Ogwuegbu, JSC.

Going by the above authority, relief (c) is also hereby refused and issue three is resolved in favour of the Defendants to the effect that in view of the resolution of issue two, the Claimant is not entitled to the reliefs sought.

In the final analysis, this court finds the claims of the Claimant to be lacking in merit and all the said claims are refused and dismissed accordingly.

Judgment is entered accordingly.

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE.