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NICN/CA/62/2014-VS-UNIUYO ACADEMIC STAFF MULTI-PURPOSE

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFORE HIS LORDSHIP HONOURABLE JUSTICE E. N. N. AGBAKOBA

 

DATED 7TH DECEMBER 2016                                         SUIT NO: NICN/CA/62/2014

BETWEEN

EMEM-OFON OKON IFUT                                                                      CLAIMANT

AND

  1. UNIUYO ACADEMIC STAFF MULTI-PURPOSE

CO-OPERATIVE SOCIETY LIMITED                                      DEFENDANTS

  1. DR. MFONISO UMOREN

REPRESENTATION

  1. U. JOHN for the claimant
  2. S. ESSIEN for the defendant

 

JUDGEMENT

 

The Claimant instituted this action via a Complaint with the accompanying frontloaded documents filed on 16th August, 2014 against the defendants jointly and severally for the following reliefs:

  1. A DECLARATION that the instrument and/or act of setting up the Independent Investigation Committee by the Management Committee headed by the 2nd defendant for the investigation of the claimant, being an employee of the 1st defendant respecting matters of misappropriation, misapplication and mismanagement of funds belonging to the 1st defendant is ultra-vires the Management Committee and in contravention of the Bye-Laws of Uniuyo Academic Staff Multi-Purpose Co-operative Society Limited and therefore void ab initio.
  2. A DECLARATION that the investigation of the claimant as an employee of the 1st defendant for misappropriation, misapplication and mismanagement of funds belonging to the 1st defendant headed by the 2nd defendant through the instrumentality of an Independent Investigation Committee, a body not recognized by the Bye-Laws of the 1st defendant is ultra-vires the Management Committee and in contravention of the Bye-Laws of Uniuyo Academic Staff Multi-Purpose Co-operative Society Limited and therefore void ab initio.
  3. A DECLARATION that the consideration by the 1st and 2nd defendants of issues arising from the query by the 2nd defendant purporting to be done for and on behalf of the Management Committee of the 1st defendant, particularly the query dated July, 27, 2013 against the claimant on misappropriation, misapplication and mismanagement of funds belonging to the 1st defendant having not been reported to the 1st defendant through the Council of Inspection is ultra-vires the Management Committee headed by the 2nd defendant and in contravention of the principles of natural justice and the provisions of the Bye-Laws of Uniuyo Academic Staff Multi-Purpose Co-operative Society Limited and therefore void ab initio.
  4. A DECLARATION that the presentation, consideration and conclusions at the 1st General Meeting of Thursday 23rd January, 2014 particularly as contained in the written address of the 2nd defendant against the claimant as an employee of the 1st defendant on issues of misappropriation, misapplication and mismanagement of funds belonging to the 1st defendant by the Management Committee headed by the 2nd defendant arising from the independent investigation Committee at the behest of the 2nd defendant are ultra-vires the Management Committee and contravenes the Bye-Laws of the 1st defendant and therefore void ab initio.
  5. A DECLARATION that the arrest, detention and investigation of the claimant as an employee of the 1st defendant regarding financial misappropriation, misapplication and mismanagement of funds belonging to the 1st defendant and conduct of the  affairs of the 1st defendant by the claimant as the Business Manager and an employee of the 1st defendant through the instrumentality of the Economic and Financial Crimes Commission (EFCC) Port Harcourt at the behest of the 2nd defendant and the Management Committee having not complied with the internal procedure and provisions of the Bye-Laws of the 1st defendant.
  6. A DECLARATION that the purported report of the Council of Inspection dated 21st January, 2014 and adoption of the report of the Independent Investigation Committee in breach of the Bye-Laws of the Uniuyo Academic Staff Multi-Purpose Co-operative Society Limited having been put together after the query, suspension and various sub-human treatments and violation of the human dignity of the claimant by the 2nd defendant and the Management Committee of the 1st defendant.
  7. A DECLARATION that the retroactive termination of the appointment of the claimant by the 1st defendant on March 26, 2014 is unlawful and in conflict with the extant letter of suspension of August 07, 2013 and amounts to a denial of the rights and entitlements of the claimant under her contract of employment and a breach of the Bye-Laws of the 1st defendant.
  8. PERPETUAL INJUNCTION retraining the 1st and 2nd defendants, their agents, privies, servants, co-operators and collaborators from molesting, harassing and continuing the irregular and unlawful arrest and investigation of the claimant on the behest of the defendants for financial misappropriation, misapplication and mismanagement of funds belonging to the 1st defendant through the instrumentality of the Economic and Financial Crimes Commission (EFCC) or any other law enforcement body or bodies in that regard.
  9. #150 Million being debt due and owing to the claimant by the 1st defendant and damages for unlawful and wrongful arrest, detention and violation of claimant’s right to human dignity, wrongful detention of claimant’s property and wrongful termination of her appointment with the 1st defendant.

The claimant’s case on the record is that the claimant was an employee /Business Manager of the 1st defendant, and the Secretary of the Management / Investment Committee of the defendants saddled with the responsibility of recording/producing minutes of Management / Investment Committee meeting as well as carry out other instructions of the meetings. The 1st defendant is the limited liability cooperative society and the 2nd defendant is the President of the 1st defendant and Chairman of the Management / Investment Committee.

Claimant resumed duty as a pioneer staff of the Business Development Unit of the 1st defendant following the inauguration of the new Management Committee, her earlier proposal was adopted during the Management Committee meeting of the 1st defendant held on 17th June, 2013 with the 1st defendant taking over her snacks bar and the equipment.

Claimant averred that while awaiting the response of the Management Committee there was a change of regime in May, 2013 during the Annual General Meeting and a new Management Committee was put in place with the 2nd defendant as the President.

Claimant received a letter of suspension from her office as Business Manager on 7th August, 2013 and was informed that an Independent Investigative Committee had been set up in line with Article 14, Sec. 10 of the Bye-Laws of the 1st defendant and that she was not allowed to enter or visit the 1st defendant’s office/shop effective the day of the suspension.

On November 1st, 2013, claimant wrote to the Council of Inspection pleading for intervention and that on 21st January, 2014, the Secretary, Council of Inspection forwarded a copy of a report purporting to be a report of Council of Inspection on the financial misappropriation, misapplication and mismanagement of fund belonging to the 1st defendant by the claimant.

By reason of the various acts of the defendants, the claimant averred that she has suffered grave injury and loss and that the same is still continuing.

STATEMENT OF DEFENCE dated 15th December, 2014 and filed on 16th December, 2014.

The defendants averred that the  report of Council of Inspection never commended the claimant at all, and that claimant never recorded any success whatsoever in any area of operation. Furthermore, that contrary to the job schedule, description and specification, the claimant went outside the scope of her employment or authority without the defendants’ consent and set up her personal business using the funds, premises/office and facilities of the 1st defendant for her benefit without making any profit or returns to the 1st defendant at all.

And that upon the assumption of office by the new Management Committee headed by the 2nd defendant, they discovered numerous financial impropriety, misappropriation and mismanagement of funds of the 1st defendant by the claimant, of which claimant made part refunds of the money into the 1st defendant’s bank account.

Furthermore, that when the claimant failed or refused to refund the remaining money, a query dated 22/7/2013 was issued to her. Defendants dissatisfied with claimant’s reply set up an ad hoc committee to look into the matter.

The claimant was placed on suspension in line with the policy of the 1st defendant and that they never received any letter from the claimant personally nor did the 2nd defendant or any of their staff verbally or otherwise abuse or assault or embarrass the claimant nor breached her right on 7/10/2013 or on any other date at all.

The defendants stated that there was no such staff by the name of Ndifrekeabasi E. Essien neither did the Vice President order the warehouse attendant nor anybody else to break open any cupboard allegedly containing the personal effects or money of the claimant in the 1st defendant’s premises on 7/10/2013 or any other date at all.

Defendants admitted engaging another staff to continue in its business. They however denied owing the claimant the sum of #2,912,438,000.00 (Two Million, Nine Hundred and Twelve Thousand, Four Hundred and Thirty Eight Naira) only or any other amount at all. And are counterclaiming for the sum of #11,813,176.05k (Eleven Million, Eight Hundred and Thirteen Thousand, One Hundred and Seventy-six Naira and five Kobo plus 20% interest and #5,000,000.00 (Five Million Naira) only as general damages.

At the trial the claimant testified as CW adopted hers statement on oath and tendered 15 other exhibits. She testified that she was employed to manage the affairs of the Cooperative as  a Business manager and that the shop was only one of the Business ventures She further testified that she and two other worked  with the defendants and that most of the requisitions were made in writing and the need to disburse funds (withdrawal of funds by members) was also made in writing and that it was the 1st defendants policy that all money belonging to the 1st defendant was paid into the account. She further testified that the money she gave Godson Umara was from her own pocket and that she applied for reimbursement because it was around the time of her suspension. She also testified that she was invited and appeared both before the investigation committee set up by the 1st defendant and the Council of Inspectors and that she is currently standing trial for the criminal offence. In response to the question whether the defendant had the authority to discipline her and investigate her conduct and she answered in the affirmative.

The claimant also called John Ufut who testified as CW2 and tendered his statement on oath which was marked exhibit CW17 and further testified under cross examination that he signed C17 in his lawyers chambers and that although he did not work directly with the claimant her report would be received by him and he was a member of the cooperative and was also initially a member of the Council of Inspectors, which was not set up by the Management of the cooperative, on this point he further testified that he had left the council/committee by the time the committee had prepared its final report due to a conflict of interest. He also expressed surprise that the claimant had admitted in her Exhibit C6 that he had the cooperative’s cash in his possession. He also testified that the 1st defendant had no power to set up an independent investigation Committee to investigate the claimant.

The defendants called one witness Mfoniso Umorem, a Professor of Mathematics University Uyo, who testified as DW, adopted his written statement on oath which was marked Exhibit D1 and went on to tender 6 other exhibits.

Under cross examination DW testified that he was the Chairman of the Council of Inspectors of the 1st defendant up until 2013 and it as by the by-laws the Council’s function to put up a state of affairs report on the finances of the society to the Management and to bring to the attention of the Management any mismanagement of the society’s resources. He further testified that for the three years he was chairman of the council of Inspectors the State of Affairs Report was rendered only once and that was to an Annual General Meeting, testifying that it was the claimant’s responsibility to bring up the agenda of the AGM.  He further testified that although Exhibit D4 at page 5 did not include an Independent Committee, the Management Committee are empowered by the said Exhibit D4 to set up any committee they require

At the end of trial parties were directed to file their final written addresses in line with the rules of this court.

The DEFENDANTS’ FINAL WRITTEN ADDRESS was filed on 26th September, 2016.

Wherein the defendant raised the following ISSUES

  1. Whether the processes filed by the claimant in this suit, particularly the Written Statement on Oath of the claimant and the claimant’s witness are competent in order to vest this Honorable Court with the requisite jurisdiction to hear and determine the claimant’s case.
  2. Whether the defendants (particularly the 1st defendant) has power under its Bye-Laws to set up the Committee called an Independent Investigating Committee in the special circumstance of this case.
  3. If the answer to issue 2 above is in the affirmation, whether the claimant is entitled to all or any of the reliefs sought in this suit.
  4. The defendants (particularly the 1st defendant) is entitled to the Counter Claim sought in this suit.

 

 

ON ISSUE 1

Whether the processes filed by the claimant in this suit, particularly the Written Statement on Oath of the claimant and the claimant’s witness are competent in order to vest this Honorable Court with the requisite jurisdiction to hear and determine the claimant’s case.

Learned Counsel for the defendant A. S. Essien Esq submitted that it is the swearing that makes a Written Statement on Oath and not otherwise. MARAYA PLASTIC INDUSTRIES LTD. v. INLAND BANK (NIG.) PLC (2002) 7 NWLR (PT. 765) 109 @ 120. He submitted that the stamp of the court does not confer the attributes of Oaths and the statements themselves are not oath in so far as they do not contain any act of swearing. LAWAL-OSULA v. U.B.A. PLC (2003) 3 NWLR (PT. 813) 388; CHUKWUMA v. NWOYE (2011) ALL FWLR (PT. 553) 1942 @ 1970-1972; OBUMNEKE v. SLYVESTER (2010) ALL FWLR (PT. 506) 1945 @ 1959, PARAS. G-H’ P. 1960, PARAS. A-D; SEC. 13 of the OATHS ACT. Defendant Counsel submitted that the failure to comply with the above legal requirement is not a mere form, irregularity or technicality at all; but goes to the substance of the document and liable to be struck out. N.N.B. PLC v. I.B.W.A. ENTERPRISES LTD. (1998) 6 NWLR (PT. 554) 446; OSULA v. UBA PLC (2003) 5 NWLR (PT. 813) 376.

He submitted that processes were invalid and in breach of both statutory and procedural requirements of filing Written Statement on Oath, hence, that the legal effect of invalid court’s process is striking out. OHONYA v. OVIOSU (2015) ALL FWLR (PT. 808) 759. It is counsel’s submission that the defect cannot be corrected or re-sworn by resort to the provision of Sections 113 and 114 of the Evidence Act, 2011. That to grant the amendment would amount to an affront to and a violation of the provision of the Oaths Act because Evidence Act regulates evidence but not Oaths. More so as there is a distinction between an Affidavit and the Witness Written Statement on Oath. CHUKWUMA v. NWOYE (Supra) RATIO 7; LAMBERT v. OKUJAGU (2015) ALL FWLR (PT. 808) N652 @ 666, PARAS. E-A.

ON ISSUE 2

Whether the defendants (particularly the 1st defendant) has power under its Bye-Laws to set up the Committee called an Independent Investigating Committee in the special circumstance of this case.

Answering this in the affirmative, counsel submitted that by Article 8 (1) (ii), the claimant, who was the Business Manager/Secretary served as the Secretary of the Management Committee and that the act or conduct of the claimant as a staff of the 1st defendant was an act of indiscipline which the Management Committee has powers to deal with under Article 8 (2) (xiii) and Article 14 (10) of Exhibit D2.

ON ISSUE 3

If the answer to issue 2 above is in the affirmation, whether the claimant is entitled to all or any of the reliefs sought in this suit.

Counsel to the defendants submitted that the declaratory reliefs sought by the claimant cannot succeed and should be dismissed with punitive cost as the declaratory relief(s) is an invitation to the court to make legal pronouncement on the legal position of proven state of affairs. FAWEHINMI v. IGP (2000) FWLR (PT. 12) 2015 @ 2025 HELD 23. He argued that for the court to be in a position to make any such legal pronouncement there must be credible facts or proven factual state of affairs placed before the court for consideration. DR. OLADIPO MAJA v. MRS. COSTA SAMOURIS (2007) 7 NWLR (PT. 765) 78 @ 100-101.

It is defendants’ counsel’s contention that the claimant’s reliefs endorsed on both the Complaint and the Statement of Facts at paragraph 32 (a), (b), (c), (d), (e), (f) and (g) are all declaratory claims of which the claimant is expected to succeed on the strength of her own case but not on the weakness or admission of the defendant at all. GE INTERNATIONAL OPERATIONS NIG. LTD. v. Q OIL & GAS SERVICES LTD. (2016) ALL FWLR (PT. 838) 842 @ 864. He submitted that a declaratory relief is a unilateral request to a court to determine a legal status or ownership of a thing and declares the right of the parties. ENEKWE v. I.M.B. NIG. LTD. (2007) ALL FWLR (PT. 349) 1053; C.B.N. v. AMAO & 2 ORS. (2010) 5-7 SC (PT. 1) @ 31; FRIDAY v. THE GOVERNOR OF ONDO STATE & ANOR. (2013) ALL FWLR (PT. 706) 507 @ 539; CHUKWUMAH v. SHELL PETROLEUM (1993) 4 NWLR (PT. 289) 512 @ 553. Referring the Court to claimant’s relief E, counsel submitted that the defendants have power to make criminal report or complaint to Police or any other relevant law enforcement authority including the EFCC. SEC. 59 (1) of the CRIMINAL PROCEDURE ACT, LFN; GUSAU v. UMEZURIKE (2012) ALL FWLR (PT. 655) 291 @ 313, PARAS. E-F.

Defendant Counsel submitted that an injunctive order is an equitable remedy of this Honorable Court which must be exercised judiciously and judicially but which the claimant cannot enjoy because claimant’s hands are not clean. Furthermore, that equitable order of court cannot be made to aid and or in favour of a party guilty of a reprehensible conduct. HARRY v. IDONOBOYE-OBU (2015) ALL FWLR (PT. 808) 66 @ 650, PARAS. C-D.

ON ISSUE 4

The defendants (particularly the 1st defendant) is entitled to the Counter Claim sought in this suit.

Counsel to the defendants submitted that a counter claim is an independent claim within a suit. OLALOYE v. ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, OSUN STATE (2015) ALL FWLR (PT. 774) 37 SC; AKINNAWO v. ADEWOYE (2015) ALL FWLR (PT. 787) 627 CA. He submitted further that ordinarily, the counter-claimant has a burden to prove his counter-claim where there is a defence and issues are joined with the counter-claim. But where there is no defence to the counter-claim, and or there is failure to file any defence thereto, that amount to admission by the claimant. And that what is admitted needs no proof and the burden of proof placed on the defendants/counter-claimants is removed by the admission. SEC. 123 of the EVIDENCE ACT, 2011; BENDLE PILGRIM WELFARE BOARD v. IRAWO (1995) 1 NWLR (PT. 369).

The FINAL WRITTEN ADDRESS OF THE CLAIMANT dated and filed on 6th October, 2016.

Wherein the claimant formulated the following ISSUES

  1. Whether or not the defendants by the Bye-Laws of the 1st defendant, have the powers to set up the Independent Investigation Committee, a body not therein recognized by reference or implication as against the clear provisions of Article 14 Rule 9 of the said Bye-Laws and if the defendants have no such powers whether the said Committee was not constituted contrary to Article 14 Rule 9 of the said Bye-Laws and consequently incompetent and its activities void respecting the investigation of financial misappropriation, misapplication and mismanagement of funds belonging to the 1st defendant.
  2. Whether the adoption of the report of the Independent Investigation Committee by the Council of Inspection in its report dated 21st January, 2014 is not contrary to the procedure prescribed by the Bye-Laws of the 1st defendant and to that extent void and ineffective in the determination of the allegation of financial misappropriation, misapplication and mismanagement of funds belonging to the 1st defendant by the claimant.
  3. Whether the presentation of the report of the Independent Investigation Committee to and the conclusions at the 1st General Meeting of the 1st defendant by the 2nd defendant on the issues of misappropriation, misapplication and mismanagement of funds belonging to the 1st defendant by the claimant are not ultra vires the powers of the defendants acting jointly or severally.
  4. Whether the Court can determine the issue of alleged acts of criminality of the claimant by the defendants given the above issues.

ON ISSUE 1

Whether or not the defendants by the Bye-Laws of the 1st defendant, have the powers to set up the Independent Investigation Committee, a body not therein recognized by reference of implication as against the clear provisions of Article 14 Rule 9 of the said Bye-Laws and if the defendants have no such powers whether the said Committee was not constituted contrary to Article 14 Rule 9 of the said Bye-Laws and consequently incompetent and its activities void respecting the investigation of financial misappropriation, misapplication and mismanagement of funds belonging to the 1st defendant.

Responding in the negative, Claimant’s  counsel submitted that express mention of the Committees set out in Article 8 of the Bye-Laws of the 1st defendant excludes the Independent Investigation Committee and that the legal consequence is that the work of the Committee that is not provided for in the Bye-Laws is illegal, ineffective, null and void. ATTORNEY GENERAL OF LAGOS STATE v. ATTORNEY GENERAL OF THE FEDERATION & ORS. (2014) 9 NWLR 217; OGBUYINNYA v. OKUDO (1979) 6-7 SC 32; PEOPLES’ DEMOCRATIC PARTY v. INDEPENDENT ELECTORAL COMMISSION (1999) 11 NWLR (PT. 626) 200; BUHARI v. YUSUF (2003) 14 NWLR (PT. 84) 466; UDOH v. ORTHOPAEDIC HOSPITAL MANGAGEMENT BOARD (1993) 7 NWLR (PT. 304) 139; HALSBURY’S LAWS OF ENGLAND 4TH EDITION PARA. 867. He argued that by Article 14 Rule 9 (i) & (ii) of the Bye-Laws, any case of misapplication or mismanagement of the Society’s funds shall be reported to the Society through investigated and reported to the General Meeting by the Council of Inspection and the investigation shall be concluded within 2 months. Claimant’s Counsel further submitted that placing the activities of the defendants against the deliberate template of the Bye-Laws, the defendants have not complied with the Bye-Laws regarding the matter of investigation.

ON ISSUE 2

Whether the adoption of the report of the Independent Investigation Committee by the Council of Inspection in its report dated 21st January, 2014 is not contrary to the procedure prescribed by the Bye-Laws of the 1st defendant and to that extent void and ineffective in the determination of the allegation of financial misappropriation, misapplication and mismanagement of funds belonging to the 1st defendant by the claimant.

Claimant’s Counsel submitted that the adoption by the Council of Inspection of the report of the Independent Investigation Committee in its report dated 21st January, 2016 is contrary to the provisions of the Bye-Laws as the only body mandated by the Bye-Laws to investigate and present to the General meeting of the Society issues relating to finance and financial mismanagement of the Society’s resources is the Council of Inspection. Articles 8 Rule 4 (ii) and 14 Rule 9 (iii) of the Bye-Laws. He urged the Court to hold that having regard to the earlier submission establishing prejudicial decisions by the Management Committee against the claimant, it will amount to a travesty of justice to allow the process other than that which is approved by the Bye-Laws to stand.

ON ISSUE 3

Whether the presentation of the report of the Independent Investigation Committee to and the conclusions at the 1st General Meeting of the 1st defendant by the 2nd defendant on the issues of misappropriation, misapplication and mismanagement of funds belonging to the 1st defendant by the claimant are not ultra vires the powers of the defendants acting jointly or severally.

Claimant’s Counsel submitted that the presentation of the issue relating to financial mismanagement by the 2nd defendant on 23rd January, 2014 was in breach of Articles 8 Rule 4 (ii) and 14 Rule 9 (iii) of the Bye-Laws, consequently, it cannot stand. He urged the Court to hold that the decision of the 1st defendant arose from the prejudicial acts of the 2nd defendant on the portal of the Management Committee.

ON ISSUE 4

Whether the Court can determine the issue of alleged acts of criminality of the claimant by the defendants given the above issues.

Counsel submitted that the Court is precluded from enquiring into the issue of alleged criminality of the acts of the claimant as this is a threshold issue and that by the provisions of the enabling law setting up the National Industrial Court especially the Third Alteration Act, the Court is precluded from enquiry into the acts of crime. Rather, that the Court should confine itself to the issue whether or not the termination of the employment of claimant was in accordance with the process laid down in the Bye-Laws of the 1st defendant.

He urged the Court to hold that the defendants having failed to abide by their own laws and regulation which failure led to the injury of wrongful arrest and detention of the claimant by the EFCC for which the claimant has suffered harm, injury and indignity of her person, the claimant is entitled to damages as a natural result of that breach. E.P. IDERIMA v. RIVERS STATE CIVIL SERVICE COMMISSION (2005) 16 NWLR (PT. 951) 378.

DEFENDANTS’ COUNSEL REJOINDER ON POINT OF LAW dated 10th October, 2016 and filed on 11th October, 2016.

Counsel contended that issue No. 4 formulated by claimant’s counsel does not arise from the pleading, the claimant’s claim or the defendants’ counter-claim and urged the Court to strike out issue No. 4 as it is lifeless and this Court cannot sit over lifeless, hypothetical or academic issue as contained therein. He submitted that neither the claimant nor the defendants submitted any issue or question of “alleged acts of criminality of the claimant” as this Honorable Court is not sitting over this matter as a criminal court nor is there any criminal charge filed against or by the claimant in this court at all.

Secondly, in response to claimant’s issue No. 2, counsel submitted that claimant’s counsel’s Final Written Address is not a substitute for evidence or pleaded facts. That throughout the pleading and evidence of parties, there was neither pleaded facts nor evidence to the effect that Council of Inspection merely only adopted the report of Independent Investigation Committee in its report; and that such material evidence did not come from the claimant or her witness and cannot at this stage come from the address of her counsel.

Thirdly, counsel argued that claimant’s issue No. 3 as canvassed by her counsel is lacking in substance, material particulars and evidence as there is no evidence upon which this argument can be deduced at all and therefore, should be disregarded completely because counsel’s address should be a summary application of evidence and the laws but not to supply additional evidence. Defence Counsel pointed out that the claimant and the defendants were in a contract of master-servant relationship and that the claimant has not pleaded nor led evidence on what were the conditions or terms of her employment that were breached. That there is no claim relating to the employment rights or entitlements of the claimant before this Honorable Court. Thus, that the argument of counsel is misconceived, erroneous and misleading. He submitted further that this case is academic, frivolous, baseless and abuse of judicial process with the aim to harass, intimidate and spite the defendants. He urged that Court to dismiss this case with punitive cost.

On the 13th October 2016 the parties adopted their respective written addresses and adumbrated their respective positions accordingly.

THE COURT’S DECISION

I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether the claimant is entitled to the relief sought in this suit,

Before I delve in to the merit of this case it is necessary to address contention made by the defendants as regard the testimony of the CW2 under cross examination that he signed his witness statement on oath C17 in his lawyer’s chambers. It is worthy to note that the court of Appeal in UDEAGHA Vs. OMERGARA [2010] LPELR 3856 CA had clarified this point that there was a distinction between an affidavit and a witness statement on oath where the witness later comes to court to adopt he said statement under oath, in that case the Court held “Let us not forget that statements of witness which are adopted during oral evidence on oath are different from mere affidavit evidence which stand on their own without oral backup and which are not subjected to cross examination. It is such affidavit evidence which do not meet the requirements of Section 90 of the evidence Act that are intrinsically inadmissible”. What that means is that the witness statement on oath is not an affidavit and seeing as it is adopted under oath any defect in the deposition process prior to the adoption would automatically be cured by the adoption I hold.

Back to the merit of this case

The claimants are seeking the following reliefs:-

  1. A DECLARATION that the instrument and/or act of setting up the Independent Investigation Committee by the Management Committee headed by the 2nd defendant for the investigation of the claimant, being an employee of the 1st defendant respecting matters of misappropriation, misapplication and mismanagement of funds belonging to the 1st defendant is ultra-vires the Management Committee and in contravention of the Bye-Laws of Uniuyo Academic Staff Multi-Purpose Co-operative Society Limited and therefore void ab initio.
  2. A DECLARATION that the investigation of the claimant as an employee of the 1st defendant for misappropriation, misapplication and mismanagement of funds belonging to the 1st defendant headed by the 2nd defendant through the instrumentality of an Independent Investigation Committee, a body not recognized by the Bye-Laws of the 1st defendant is ultra-vires the Management Committee and in contravention of the Bye-Laws of Uniuyo Academic Staff Multi-Purpose Co-operative Society Limited and therefore void ab initio.
  3. A DECLARATION that the consideration by the 1st and 2nd defendants of issues arising from the query by the 2nd defendant purporting to be done for and on behalf of the Management Committee of the 1st defendant, particularly the query dated July, 27, 2013 against the claimant on misappropriation, misapplication and mismanagement of funds belonging to the 1st defendant having not been reported to the 1st defendant through the Council of Inspection is ultra-vires the Management Committee headed by the 2nd defendant and in contravention of the principles of natural justice and the provisions of the Bye-Laws of Uniuyo Academic Staff Multi-Purpose Co-operative Society Limited and therefore void ab initio.
  4. A DECLARATION that the presentation, consideration and conclusions at the 1st General Meeting of Thursday 23rd January, 2014 particularly as contained in the written address of the 2nd defendant against the claimant as an employee of the 1st defendant on issues of misappropriation, misapplication and mismanagement of funds belonging to the 1st defendant by the Management Committee headed by the 2nd defendant arising from the independent investigation Committee at the behest of the 2nd defendant are ultra-vires the Management Committee and contravenes the Bye-Laws of the 1st defendant and therefore void ab initio.
  5. A DECLARATION that the arrest, detention and investigation of the claimant as an employee of the 1st defendant regarding financial misappropriation, misapplication and mismanagement
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