Mr. Daniel AbiodunAdeyemo -VS- The Federal Univesity, Oye Ekiti &

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

BEFORE HIS LORDSHIP HON. JUSTICE A. A. ADEWEMIMO

DATE: 14^TH DECEMBER, 2018 SUIT NO. NICN/AK/29/2017

BETWEEN

MR DANIEL ABIODUN ADEYEMO CLAIMANT

AND

THE FEDERAL UNIVERSITY, OYE EKITI
THE VICE CHANCELLOR, FEDERAL .DEFENDANTS

UNIVERSITY OYE EKITI

REPRESENTATION:

KABIR AKINGBOLU WITH F. O. AKOGUN FOR THE CLAIMANT.

EBUNOLU ADEGBORUWA WITH K.A. ATIMA FOR THE DEFENDANTS.

JUDGMENT

The Claimant by a Complaint before this court on the 17^th October, 2017 claims against the defendants as follows:

A DECLARATION that the claimant has a security of tenure of five (5) years having being statutorily employed as the Registrar of the 1^st Defendant.

A DECLARATION that the Claimant cannot be removed or suspended except in accordance with laid down rules in strict compliance with the law establishing the 1^st Defendant.
A DECLARATION that the planned removal and/or suspension of the Claimant by the 2^nd Defendant singlehandedly without following the due process of law is unconstitutional, null and void.

AN ORDER of perpetual injunction restraining the Defendants either by themselves, agents, privies, allies or through any person however described, from suspending, removing, harassing for the purpose of removal or interfering with employment of the Claimant in any way or manner howsoever, not in accordance with the law and regulations for removal of a Principal Officers of the University.

The claimant filed along with the complaint all the accompanying processes, i.e. the statement of facts, list of witnesses and documents to be relied upon.

The claimant’s case is that he was employed as the Acting Registrar by the 1^st defendant in July 2011 to April, 2015 and later confirmed as the substantive Registrar till date. He stated that the genesis of his problem or disagreement with the 2^nd defendant started in 2016 when the 2^nd defendant unilaterally appointed one Mr. Olatunbosun Odusanya, his kinsman, as the Director of Administration and ceded a substantial part of the Registrar’s statutory duties to him.

Claimant avers that sometimes, members of Non-Academic Union and their ilk’s in the University wrote a petition against him, raising the allegation that he was responsible for the non-promotion of some of its members amongst other things and upon receipt of the petition, the Claimant showed the 2^nd Defendant who told him to ignore the petitioners.

Claimant stated that even though he was never in charge of promotion or had any power to prevent the promotion of anybody promoted or demoted by the council, he was later advised to respond to the petition, which he did. He further reiterated that after his response to the petition, the 2^nd defendant informed him through WhatSapp message that he should proceed on indefinite leave without pay and while going he should drop his official car.

The claimant further averred that he later realized that the 2^nd defendant was acting in cahoots with the Union members that wrote the petition, to get rid of him at all cost.

Claimant stated that on the 13^th of October, 2017 the 2^nd defendant requested him to appear before a disciplinary committee slated to sit between16^th – 18^th October, 2017, vide a WhatSapp message. He alledged that the purported disciplinary committee was unilaterally set up by the 2^nd defendant to perfect his plan to get rid of him as the Registrar of the institution as he is considered a threat to the 2^nd defendant whom he always advises from time to time on the running of the affairs of the 1^st Defendant in line with the law.

Whereof the claims against the defendants as aforestated.

The defendants filed a memorandum of conditional appearance dated 6^th November, 2017, and a notice of Preliminary Objection, and later, on the 14^thof November, 2017 filed their Statement of defence, list of witness and statement on oath.

In their statement of defence, the defendants denied paragraphs 6, 7, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35 and 36 of the Claimant’s Statement of Facts.

The defendants case is that the claimant is the Registrar of the 1^st defendant, and that three Industrial Unions in the 1^st Defendant (Senior Staff Association of Nigeria Universities, National Association of Non-Academic Staff Union and National Association of Technologies) wrote a petition against the claimant, alleging that he was involved in several misconduct, including sexual harassment, manipulation of promotions, abuse of office, ineptitude etc. and since the petition had to go through the Claimant as the Secretary of Council, he suppressed it such that it didn’t get to the Council immediately. A copy of the petition was however also sent to the Minister of Education, alleging certain administrative malfeasance against the Claimant, consequent upon which the Minister directed the Council to investigate the said petition.

The Governing Council of the 1^st Defendant later met to consider the said petition, on or about July 25^th, 2018 and decided to set up a Fact-Finding Committee consisting mostly of members of the Council.

The Committee met severally during which the claimant appeared and was able to make representations before the committee.

The Committee later submitted its report to the Council and it was the decision of council to commence disciplinary proceedings against the claimant or to give him the option of voluntary resignation. Upon which according to the Defendants, the claimant pleaded for time to turn in his voluntary resignation and the Council through the 2^nd Defendant directed the claimant to proceed on leave in line with the extant rules, regulations and law of the 1^st Defendant.

The Defendants’ averred that the Claimant instead of picking one of the options made available to him later instituted a suit in the Federal High Court, Ado- Ekiti which was later struck out.

The defendants stated that by the Law setting up the 1^st Defendant, the claimant is subject to discipline by the Governing Council and indeed the 2^nd Defendant, in appropriate cases of misconduct. They reiterated that the council is empowered to take disciplinary measures against any member of staff that is guilty of misconduct and that they should be allowed to conclude the disciplinary process against the claimant.

The defendants averred that the entire suit of the claimant is academic, speculative and is lacking in merit as it did not disclose any reasonable cause of action against the defendants and that the court lacks the requisite jurisdiction to entertain and to adjudicate upon the entire suit.

Trial in this case commenced on 24^th April, 2018. The claimant called Oyeyinka Koyejo Fasakin Mrs (Ag Registrar of the 1^st Defendant) vide a writ of subpoena filed 16^th of April, 2018 as CW1, she tendered several exhibits that were marked Exhibits D1- D12, the claimant later also testified as CW2, he adopted his witness statement on oath, further witness on oath, was cross examined and tendered several exhibits which were admitted and marked Exhibits D13 – D15. The claimant thereafter closed his case on the 24^th May, 2018.

The defendants opened their defence on the 10^th of July, 2018 and called one Amaechi Eni, Principal Assistant Registrar and Head of Legal Unit in the 1^st Defendant as DW1, he gave evidence and also tendered some exhibits which were marked as Exhibits F1-F3 (i-xx). He was also cross examined. The defence thereafter closed its case, and the case was adjourned for parties to file their final written addresses. Both parties adopted their final written addresses on the 10^th of October, 2018, and the case was thereafter adjourned for Judgment.

The defendants’ final written address was dated 31^stof July, 2018 but filed on 20^th September, 2018 and they formulated two issues for determination to wit:

Whether the claimant’s sworn statement on oath made on the 2^nd February, 2017 prior to the commencement of this suit is valid and evidence before this Honourable Court in accordance to law.

Whether the claimant has succeeded in proving his case against the defendants and his entitled to the reliefs sought in this suit.

Ebunolu Adegboruwa learned counsel for the defendants submitted that the claimant’s written deposition on oath of 2^nd February, 2017 is bare, unfounded and not based on any pleading before court. He posited that, by the provisions of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017, any fact required to be proved at the trial of any action may be proved by written deposition and oral examination of witnesses in the open court, and by virtue of Order 3 Rules 9 of the Rules of this court, a written deposition is expected to accompany the Statement of Facts/Defence, when a party is calling evidence.

Learned counsel submitted that in this case, the claimant filed an Amended Statement of Facts accompanied by a purported witness statement on oath. He pointed out that the Amended Statement of Facts was filed on the 2^nd of February, 2018, but the deposition by the claimant was deposed on the 2^nd February, 2017, long before the cause of action in this suit arose. This fact according to the Defendants was confirmed by the claimant during his testimony before this court, when he acknowledged his signature on the said deposition, thus giving credence to the fact that the deposition was on 2^nd February, 2017 and the commissioner for oaths also appended his signature to the deposition on the same date as evident on the deposition. He submitted therefore that the signature of the commissioner for oaths authenticates this fact and so therefore the deposition is not in support of the claimant’s Amended Statement of Fact dated 2^nd February, 2018, and constitutes no evidence before this court, and it should be accordingly expunged as the deposition is standing on its own and on nothing, and as rightly settled by case law and logic, one cannot expect to place something on nothing and expect it to stand. He cited Macfoy v. UAC Ltd (1961) 3 All ER 1169. He surmised that pleadings, by nature and character cannot speak and do not constitute evidence and failure to substantiate and prove such pleadings by way of leading evidence automatically makes such pleadings useless and abandoned. He cited Awojugbagbe Light Industries Ltd v. Chinukwe (1995) 4 NWLR (pt. 390)379 at 427; Odunsi v. Bamgbala (1995)1 NWLR (pt. 374) 641 at 656-657.

The Defendants’ urged the court to dismiss the case of the claimant based on the fact that no evidence was led on the claimant’s pleadings. He went further to submit that in the unlikely event that the deposition on oath made on 2/2/2017 by the Claimant is consistent and evidence in support of the Claimant’s pleadings, the defendants submits that civil cases are decided on preponderance of evidence and balance of probability which calls therefore for a careful consideration of the evidence propounded by the parties herein. Cited Elias v. Omo-Bare (1982) 5SC 25; and Woluchem v. Gudi (supra).

On issue two, learned counsel for the defendants submitted that it is firmly settled that whoever desires any court to give judgment as to any legal right or liability must aver some facts in respect of such legal rights and prove that those facts exist. The onus is therefore on the claimant to prove to the satisfaction of the court the assertions made in his pleadings upon which he filed his case. He cited Kodlinye v. Mbanefo Odu (1935) 2 WACA 336. See also Okoye & Ors v. Nwankwo (2014) LPELR-SC 234/2004. It was argued on behalf of the Defendants that the claimant was unable to lead credible evidence on his assertion in his examination-in -chief that the 1^st Defendant had stopped paying his salary as the Registrar of the 1^st defendant. The defendants in their address also denied the purported directive issued by the 2^nd defendant vide Whatsapp message as well as the alleged plot to remove the claimant at all cost. The defendants on the other hand, according to learned counsel were able to lead credible oral and documentary evidence which established the un-contradicted facts in support of their case.

Ebunolu Adegboruwa learned counsel for the Defendants submitted further that a careful and objective review of the propounded evidence in respect of the first leg of the claimant’s claim shows that the claimant was indeed placed on leave by the 1^st defendant but not in perpetuity as same was to last till the outcome of the proceedings of the Staff Disciplinary Committee, and a mere grant of accumulated leave should not lead to the invocation of the adjudicatory power of court. He submitted that a court of law is not expected to speculate and expend valuable judicial time on conjectures and theoretical issues, as such cases which are theoretical only make an empty sound and is of no practical utilitarian value to the plaintiff even if judgment is given in his favour. He cited the Supreme Court’s pronouncement in Agbakoba v. INEC (2008) 18 NWLR (Pt. 1119)489 Per Chukwuma-Eneh, JSC on the issue of an academic point where it was held that:

“An action becomes hypothetical or raises mere academic point when there is no live matter in it to be adjudicated upon or when its determination holds no practical or tangible value for making a pronouncement, upon it; it is otherwise an exercise in futility”.

and submitted that by virtue of the failure of the claimant to prove his case for claim for declaration, all other ancillary reliefs hinged on the claimant’s principal claim must automatically give way and fail.

Finally, counsel submitted that all the claimant’s reliefs before this court is lacking in merit, he therefore urged the court to dismiss this suit with substantial cost in favour of the defendants.

The final written address of the claimant was filed on the 5^th October, 2018 and adopted by Gboyega Oyewole S.A.N. He submitted the following issues for determination to wit:

Whether the claimant’s sworn statement on oath made on the 2^nd February, 2017 prior to the commencement of this suit is valid and evidence before this Honourable Court in accordance to law.
Whether in the circumstances of this case, the directive of the 1^st defendant to the claimant to proceed on indefinite leave is not unlawful and contrary to the procedure for discipline an officer of the 1^st defendant as contained in the Federal University of Oye-Ekiti establishment Act 2015 and the Federal University of Oye-Ekiti Regulations.

iii. Whether the claimant is entitled to the reliefs sought vide his amended statement of claim.

On issue one, learned silk for the claimant argued that the claimant’s witness statement on oath was erroneously indicated to have been sworn on the 2^nd of February, 2017, a date which is several months ahead of when the claimant’s cause of action arose.

He argued that the claimant’s cause of action arose around October 2017 and the admission of the defendants on same. He submitted that the claimant’s deposition was erroneously dated 2^nd of February, 2017 and this is nothing but an irregularity, error/mistake on the part of the commissioner for oaths of this court. Therefore, this irregularity is incapable of rendering the sworn statement of the claimant invalid or incompetent.

Learned silk argued that the party complaining about an irregularity must do so at the earliest time possible failing which he would be deemed to have waived his right to complain against such irregularity. He cited DUKE V. AKPABUYO L. G. (2005) 19 NWLR (PT. 959) 130 @ 143; ANYANWOKO V. OKOYE (2010) 5 NWLR (PT. 1181)497 @ 519.

On Issue two, learned silk submitted that there is nothing to suggest that the annual leave of an employee as contained in the FUOYE Regulations (Exhibit D12) is a disciplinary sanction. Exhibit D12 specifically contains provisions relating to the procedure on discipline of an employee of the 1^st Defendant and the sanctions that can be imposed on its staff. He pointed out that the regulations do not provide for leave as a form of discipline or disciplinary action against an employee of the 1^st defendant and that the implication of not following laid down procedure in respect of discipline of an employee whose employment is statutorily flavoured was elucidated upon in OSISANYA V. AFRIBANK NIGERIA PLC (2007)6 NWLR (PT. 1031) 565 where the appellate court held as follows:

“When an office or employment has a statutory flavor in the sense that its conditions of service are provided for and protected by statute or regulations there under any person holding that office or in that employment enjoys a special status over and above the ordinary master and servant relationship. In the matter of disciplining of such a person the procedure laid down by the applicable statute or regulations must be fully complied with. If materially contravened any decision affecting the right or tenure of office of that person may be declared null and void in an appropriate proceedings”

On issue three, counsel submitted that a claimant is entitled to reliefs sought against the other party provided he proves his case. In the instant case, learned silk argued, what the claimant is required to prove is the existence of a contract of employment that stipulates the terms and conditions of the relationship between the employer and employee and a breach of the terms by the defendant. He reiterated that the claimant is entitled to the reliefs sought vide the Amended statement of facts as well as consequential reliefs.

In addition, learned silk contended that arguments canvassed by the defendant’s counsel in their address that the claimant has not been removed is with a view to mislead the court, as the appointment of an acting Registrar and denial of the Claimant access to his office confirms the fact that the leave that was granted to the Claimant was punitive. He therefore, urged the court to grant all the reliefs of the claimant.

The defendants filed a Reply on Point of Law on the 9^th October, 2018 which was also adopted at the hearing. Counsel submitted in the reply that no amount of brilliance in a final address can substitute and make up facts or evidence of a case. He urged the court not to presume the correctness of a date on a sworn document which has already been adopted by the witness. He further argued that it is not an issue of technicality on the side of the defendants but compliance with the principles of statutory provisions and the rule of law.

Furthermore, learned counsel for the Defendants submitted that the claimant’s failure to provide the specific particulars and provisions of the regulations and statutes governing the claimant’s employment with the defendants that was contravened has no place in Law.

He submitted that the general principle of law as espoused by case laws and statute is that, the general burden of proof is on the person who asserts the affirmative of an issue, therefore a party who asserts the existence of a state of affair and seeks the judgment of the court based on the facts which he asserted must proof same. He Cited Section 131 and 132 of the Evidence Act, 2011.

Learned counsel argued that there is no bone of contention between the parties that the 1^st defendant is a body established by Statute with its powers and functions spelt out thereunder. He pointed out that the 1^st defendant has the authority to appoint and remove an Acting Registrar in ensuring the due administration of the 1^st defendant’s university. The same power vested in the 1^st defendant to appoint an Acting Registrar also bestows the power to remove, and such cannot denote extinction of the claimant’s statutory rights and functions as substantive Registrar.

In line with the above therefore, learned counsel submitted that the claimant has failed to prove the facts entitling him to his reliefs. He therefore, urged the court to reject and dismiss his claims with punitive cost in favour of the Defendants.

Having carefully gone through the processes filed by the parties in the suit as well as the written arguments of both learned counsel in support of their respective cases before this court, I have come up with the following issues to best determine this suit;

Whether the deposition on oath of the Claimant dated 2^nd February, 2017 is competent.
Whether the indefinite leave granted to the claimant contravened the Claimant’s conditions of Service.
Whether this suit disclosed a triable cause of action.
Whether the Claimant is entitled to his claims.

On issue one learned counsel for the defendants contends that the written statement on oath of the Claimant attached to his Amended Statement of Facts is dated 2^nd of February, 2017 and deposed before the commissioner of oaths of this court on same date was done before the cause of action arose, the implication he argued is that the deposition is not in support of the claimant’s Amended Statement of Fact dated 2^nd February, 2018 and there is therefore no evidence to support the pleading before this court. Counsel urged the court to expunge the said deposition. It was however argued on behalf of the Claimant that the deposition on oath was erroneously dated 2^nd of February, 2017, which is nothing but an irregularity, being an error/mistake on the part of the commissioner for Oaths of this court. Learned counsel therefore submitted that this is incapable of rendering the deposition invalid or incompetent. In treating this issue the court will have recourse to Order 1 rule 9(3) of the National Industrial Court of Nigeria (civil procedure Rules) which provides that;

The Court may disregard any technical irregularity which is likely to result in a miscarriage of justice

Order 5 rule 1, 3, 6(3) of the rules also provides as follows;

“Failure to comply with any of these rules may be treated as an irregularity and the court may give any direction as it thinks fit.”

“The court may direct a departure from these Rules where the interest of justice so requires.”

“In any proceeding before it, the Court shall apply fair and flexible procedure and shall not allow mere technicalities to becloud doing justice to the parties based on the law, equity and fairness while also considering the facts of any matter before it.”

The issue as to date as reflected on the deposition on oath is obviously an error on the part of the court. More so, the cause of action arose in October, 2017 no reasonable person would deduce that the Claimant pre-empted the cause of action and filed the deposition on oath prior to this date. It is evident from the record of court that the Claimant in this case after been duly sworn gave evidence in this case on the 24^th of April 2018, while been led in evidence by his counsel, he testified as follows;

On 2/02/18 I deposed to a witness statement on oath at the Registry of this

Court.

If I see a copy of the witness statement on oath I can identify it (CW2

Identified his witness statement on oath).

This is my witness statement on oath.

I adopt the witness statement on oath as my evidence in this case.

It is also on record that this evidence was subjected to cross examination by the Defendants, the position of the Law is that a witness statement on oath after been sworn and duly adopted in court, becomes the evidence in chief of the witness which is now subject to cross examination and is far more superior to the original deposition.

See Abdulrauf v. State [2008] All FWLR (Pt.410) 709 @ 735 where the court held that “The policy of sticking to technicalities as opposed to substantial justice has ceased and the court has shifted from undue reliance of technicalities to doing substantial justice between parties before it.” See also Balonwu v. Obi [2007] 5 NWLR (Pt.1028) 488 at 542; Amaechi v. INEC (NO3) [2007] 18 NWLR Pt.1065.

Also in Udeagha & ors v. Omegara & Ors [2010] 11 NWLR the court of appeal per Ogunwumiju, J.C.A held that;

“…the statements of witnesses which are adopted during oral evidence on oath are different from mere affidavit evidence which stand on their own without any oral backup and which were not subjected to cross examination…..where a witness is in court to say he/she is adopting an irregular written deposition, the implication is that the witness is re-asserting on oath what is contained in the irregular deposition and as I opined earlier, such adoption on oath makes all the evidence in the written deposition admissible”

In KALU IGU UDUMA V. PRINCE ARUA ARUNSI & 14 ORS 2010 LPELR 9133 CA, Ogunwunmiju JCA restated thus;

“ I am minded to go a step further and to make a distinction between affidavit evidence in procedure begun by originating summons as against statement of witness on oath at an election proceeding or proceedings begun by writ and to say that in respect of the latter scenario, where the written statement is to be adopted again on oath by the maker before his cross examination on it, whatever defect in the original oath in respect of the witness statement has been cured by the second oath made in court by the judex prior to the adoption of the witness statement by the maker and his subsequent cross examination”

In CASTLES & CUBICLES LTD V. ALTIMATE INVESTMENTS LTD. [2004] 2 NWLR (Pt.857) @ 274 the Court of Appeal per Olagunju J.C.A held “…..it has become crystalized from decided cases that the policy has evolved over the years that in this country the line is drawn between the errors of litigants and the errors of the court and their staff and that a litigant would not be punished for the mistakes of the court and its officials…..”

It is premised on the above that I find that the evidence in chief of CW2 is proper, competent and admissible before this court. I so hold.

On issue two, it is the contention of the Claimant that the regulations of Federal University, Oye-Ekiti do not provide for leave as a form of discipline or disciplinary action against an employee of the 1^st defendant therefore the letter dated 27^th of September, 2017 is a letter of indefinite suspension by the 1^st defendant. The defendants on the other hand argued that the decision to order a staff to proceed on compulsory accumulated leave pending the outcome of a staff disciplinary committee without more is not an infringement of the legal right of the staff and as such cannot be perceived to have given rise to a cause of action that will warrant a judicial adjudication.

The provisions of Exhibit D12, particularly Section Fourteen Rule 14.7 laid down disciplinary sanctions for staff of the 1^st Defendant;

Serious reprimand (in writing)
Specified punitive measure, e.g

(a) Loss of annual increment for a specified period;

(b) Delay of promotion/ appointment for a specified period;

(c) Loss of headship or other administrative position of honor and responsibility for a specific period; and

(d) Surcharge

Suspension for a specific period
Forced resignation (non-compliance with this option leads to
Termination of appointment /contract.(Applicable when resignation

Furthermore, page 78 of 85 paragraph 4 of Exhibit D12 provides thus;

Compulsory leave

“Whenever a staff, shall, for disciplinary reasons(s) be caused to go on compulsory leave, he shall be treated as a staff suspended for disciplinary reason and shall accordingly be placed on half pay pending the determination of the case against him/her.”

It is therefore clear from the above quoted provisions, that the 1^st defendant has the right to ask the Claimant to go on leave. More so he had a pending disciplinary proceeding against him, and in fact by this provision he is entitled to only half pay, while the matter is pending but the defendants have been magnanimous to pay him in full.

The Claimant confirmed the above position that he was being paid his salary while testifying on the 24^th of October, 2018 he said under cross-examination thus;

– As I stand this morning I am being paid my salary.

– I came to court this morning in my official car.

…………………………………………………………………………….

This is contrary to his evidence in chief and submission of his counsel in their final address, it is the position of the law however that the submission of counsel cannot take the place of pleadings or evidence.

In Udegbunam v. F.C.D.A [2003] 10 NWLR (Pt.829) 487, it was clearly stated that an employer has the discretion to mete out a lesser punishment to an employee, but no discretion to dispense a higher punishment than prescribed. If one is to go by Exhibit D12, the Claimant is entitled to only half pay pending the determination of the disciplinary proceedings against him but the Defendants have been paying him in full since he started the compulsory leave.

That an employer is within his rights to ask the officer being investigated to stay away from the workplace to allow unhindered investigations to be carried out and for peace to reign at the work place is in line with business practice, to save the Master/Employer’s business as Suspension is a tool of business practice and in accordance with judicial decision. The period of suspension will keep such person out of further mischief and provide his employer further time for reflection and rumination. There are both local and foreign judicial decisions approving suspension of an employee pending the final determination of his involvement in an allegation. See Longe v. FBN Plc [2006] 3 NWLR (Pt.967) Pg.228; Amadiume v. Ibok [2006] 6 NWLR (Pt.975) 158 CA

In Akinyanju V. University of Ilorin [2005] 7 NWLR (Pt.923) 87 the court stated that “suspension” means to defer, lay aside or hold in abeyance, it also means to halt halfway but not to bring to an end. Suspension pending an investigation can never amount to a breach of the employee’s right to fair hearing. See also Ayenwa v. University of Jos [2000] 6 NWLR (Pt.659) 142.

The Defendants have however chosen the option of indefinite leave as allowed under their conditions of service i.e Exhibit D12, and was paying the claimant his full salary , pending the outcome of the disciplinary proceedings against him truncated by the institution of this suit, I therefore fail to see in what way the act of the Defendants is wrongful.

In TELIAT SULE V. NIGERIA COTTON BOARD 1985 LPELR 3124 SC, Oputa JSC held;

“Is it not reductio ad absurdum to contend that a master who could not have lawfully dismissed his servant for disobedience and insubordination will be guilty of a wrongful act if he retired that same servant (on the same facts of disobedience,etc), on humanitarian grounds?”

The facts in evidence in this case is that the Claimant was facing a disciplinary procedure, and the Defendants are within their rights to place him on suspension/indefinite leave pending the outcome of such investigation see Exhibit D12, particularly at Pg 78. They however opted to grant the claimant an indefinite leave with his salary and other perquisites of office, the contention of the claimant in this case if upheld will lead to the conclusion that his indefinite leave with full pay by the Defendants was wrongful because they did not exercise the option of indefinite leave with half pay as provided for in Exhibit D12. This will be an absurd conclusion to say the least. I find therefore premised on the above that the compulsory leave given to the claimant did not in any way contravene Exhibit D12. I so hold.

On issue three, the facts of this case are very clear and straight to the point but the following should be noted just for further emphasis

– There is a pending disciplinary proceeding against the Claimant by the 1^st Defendant.

– The defendants asked the Claimant to go on compulsory leave pending the determination of the case.

– The said disciplinary proceedings have not been concluded

In view of the above facts so stated, can this court delve into the disciplinary proceedings instituted by the Defendants against the Claimant?

The right of an Employer to discipline its staff in the interest of the organization is sacrosanct and the court will not interfere in this unless there is an infraction of the legal rights of the employee given right to a cause of action . SEE IMONIKHE V. UNITY BANK PLC [2011] 12 NWLR (PT.1262) 624 SC AT 649, SHELL PET. DEV.CO.(NIG.) LTD V. OMU [1998] 9 NWLR (PT.567) 672, SEE ALSO NEPA V. OLAGUNJU [2005] 3 NWLR (PT.913) 602.

The disciplinary proceedings against the Claimant in this suit is yet to be concluded, as the committee is yet to give its final decision. The suit of the Claimant is at best speculative at this stage, and the court is always mindful of acting based on speculation. See Ani v. State [2009] 6-7 SC (PT III) Page 1, where the court held as follows;

“A court should not decide a case on mere conjecture or speculation because Courts of law are courts of fact and law. They decide issues on facts established before them and on laws and must avoid speculations; Agip (NIG) Ltd v. Ezendu [2010] 1 SC (PT II) 124” Per Oseji, J.C.A.

In the instant suit, the Claimant is asking the court to reach a decision based on mere speculation and a perceived predetermined outcome of the disciplinary proceedings, these are not triable issues, and it will be premature at this stage for the court to exercise its adjudicatory powers to delve into an issue that is speculative or hypothetical, the court is precluded from so doing as the court can only act on cogent, concise and compelling facts, which the Claimant in this case has failed to proffer. I find therefore that the Claimant’s case did not disclose any triable issue as the claims are speculative and unmeritorious.

In consequence of the above the case of the Claimant fails in its entirety and is hereby dismissed. I so hold.

There shall be no order as to cost.

Judgment is accordingly entered.

Hon. Justice A. A. Adewemimo

Judge