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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA Before His Lordship: HON. JUSTICE O. A. SHOGBOLA JUDGE Date: 16TH MARCH, 2015 Suit No. NICN/ABJ/95/2012 BETWEEN GBENGA OLUKOJU CLAIMANT AND POWER HOLDING COMPANY OF DEFENDANT NIGERIA REPRESENTATION A. M. Kayode Esq with Dr. Sijuade Kayode Esq and M. O. Ilegusi Esq for the Claimant. Isaac Adeniyi Esq with Godwin Okhuoye Esq for the Defendant. JUDGMENT (a) A Declaration that the purported dismissal of the claimant from the employment of the defendant is wrongful, illegal, null and void and of no effect whatsoever. (b) A Declaration that the said dismissal of the claimant is contrary to National Electric Power Authority Handbook 1998 on conditions of service, July 1998 Edition. (c) An Order re-instating the claimant to his appointment as a Computer Manager in the services of the defendant with all due and outstanding emoluments and all due promotion till date. ALTERNATIVELY (d) Damages of N27,883,873 (Twenty-seven Million Eight Hundred and Eighty-three Thousand Eight Hundred and Seventy-three Naira Only) for wrongful dismissal calculated at:- (i) Bulk Rent - 45% of basic salary (ii) Leave Allowance - 20% of basic salary (iii) Utility and Meal Subsidy - N43,200 (fixed) (iv) Hazard - 10% of basic salary (v) Extra Duty Allowance - 15% of basic salary (vi) Basic Salary for the next 21 years as pension to the claimant. The defendant reacted filing its statement of defence to the claimant’s claim, witness statement on Oath, of one Mr. Gbenga Fatoyinbo who could not testify, because he had been relieved of his job. The defendant other witness could also not testify due to protacted illness. The matter went into trial, the claimant testified the defendant did not call any witness but relied on the case of the claimant. On the 4th February, 2015, counsel adopted their final written addresses. The claimant submitted a sole issue for determination to wit:- Whether the claimant has proved his case to be entitled to the relief sought. In arguing the issue the claimant submitted the law is well settled that it is the person who has the burden of establishing certain facts that must adduce satisfactory evidence in proof of its case. The burden of proof is encapsulated under Sections 131, 132, 133, 134, and 136 of the Evidence Act Cap E. 13, 2011. He referred the court to the provisions of these Sections which are herein under reproduced:- Section 131 (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. Section 132 He then said the burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side. Section 133(1) In civil cases, the burden of first proving existence or non- existence of the fact lies on the party against whom Judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. Section 134 The burden of proof shall be discharged on the balance of probabilities in all civil proceedings. Section 136 (1) The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person, but the burden may in the course of a case be shifted from one side to the other. (2) In considering the amount of evidence necessary to shift the burden of proof regard shall be hard by the court to the opportunity of knowledge with respect to the fact to be proved which may be possessed by the parties respectively. The burden therefore lies on the claimant to prove it case. In BALOGUN V LABIRAN (1988) 3 NWLR (PT. 80) PG 66 @ 69 PARA A, the Supreme Court per OPUTA JSC held thus:- In civil cases, the burden of proof is generally on the Plaintiff. In FBN (PLC) V ONIYANGI (2000) 6 NWLR (PT. 661) PG 497 @ PARA E, the Court of Appeal held thus:- ….. It has been accepted by a long line of decided cases that in a civil case, the burden of proof is generally on a Plaintiff. In order to succeed, a Plaintiff has no prove his case on preponderance of evidence or on a balance of probabilities. See also ITAUMA V AKPE-IME (2000) 12 NWLR (PT. 680) PG 156 @ 168 PARA E AND ZENITH BANK PLC V EKEREUWEM (2012) 4 NWLR (PT. 1290) PG 207 @ 230 PARAS D – F. The claimant in the course of the trial gave evidence and tendered documents in support of his case. The claimant has accordingly discharged the burden of proof placed on him. The burden is thus shifted to the defendant to adduce contrary evidence to controvert the case of the claimant. This is in line with the provisions of Sections 133 and 136 of the Evidence Act which recognizes the shifting nature of burden of proof. In U.T.C (NIG) PLC V PHILIPS (2012) 6 NWLR (PT. 1295) PG 136 @ 168 PARAS B – C, the Court of Appeal per ODILI J. C. A. (AHTW) held:- From what has been stated earlier, it can be seen and clearly too that the respondent as Plaintiff met the requirement of the provisions of Section 137 (1) of the Evidence Act on the burden of proof in civil cases lying on he who asserts as the respondent had done on the matter of the agency and the commission due him. Having done his part, since the onus of proof is not static but shifts between the Plaintiff and the defendant it was now required of defendant to rebut what the opponent had proffered and establish what he says is the correct position. The claimant therefore submitted on this score that the claimant having discharged the burden of proof in the circumstances of this case has shifted the burden to the defendant to disprove. The claimant concluded that the defendant in this case has failed to lead any evidence in support of its averments in the statement of defence. So the statement of defence not having been activated by evidence is a non-starter. Therefore, the defendant is deemed to have abandoned his defence. In OJOH V KAMALU (2005) 18 NWLR (PT. 958) PG 523 @ 565, PARAS G – H, the Supreme Court per TOBI, JSC held thus:- …… Pleadings, not being human beings have no mouth to speak in court. And so they speak through witnesses. If witnesses do not narrate them in court, they remain moribund, if not dead at all times and for all times, to the procedural disadvantages of the owner ….. In ALAO V AKANO (2005) 11 NWLR (PT. 935) 160 @ 180 PARA ….. where AKINTAN, JSC held as follows:- ….. The law is settled that where issues are joined on any averments in the pleadings but no evidence is led to support such averment, the result is that such averment in the pleadings is either to be struck out or be dismissed. In other words, such averment could be treated as having been abandoned. On the import of an abandoned pleading, the Court of Appeal per OGUNBIYI JCA (AHTW) IN AREGBESOLA V OYINLOLA (2011) 9 NWLR (PT. 1253) PG. 548 @ 597 PARAS C – D stated the position of the law more aptly thus:- ….. an abandoned pleading is dead and “to the procedural disadvantage of the owner. “Further still and in addition to it being dead, the effectual presupposition is that issues are no longer joined because their being nature of the pleadings can no longer speak through the language of a witness. The consequential outcome is that the there would be no reply at all on record in which case, issues are no longer denied because there is no denial. In DANJUMA V TERENGI (2011) 6 NWLR (PT. 1244) PG 542 @ 557 PARAS A – B, the Court of Appeal per YAYAHA stated the position of the law thus:- ….. In the instant case, although the respondent pleaded who founded the land originally, he did not lead any evidence in proof of the pleading. Pleadings not supported by evidence are deemed abandoned …. In the instant case, the defendant did not only abandoned its statement of defence and witness statement on Oath deposed to by one George Fatoyinbo but expressly relied and rested on the case and evidence of the claimant. A decision not to call evidence and to rest on the case of the other party is a legal strategy, a calculated risk. If the strategy succeeds, then it enhances the case of the party, but where it fails, it can be perilous. To the claimant the defendant having elected not to call any evidence and rest on the claimant’s case are bound by the evidence call by the claimant and the case must be dealt with on the evidence as its stands. In HAMMED V WILLIAMS (1982) ALL NLR PG 188 @ 205, the Supreme Court per IDIGBE JSC stated thus:- This submission overlooks the position in which the appellants placed themselves by resting their case on that of the respondent i.e. by in effect submitting that the respondent as Plaintiff failed to make out a prima facie case and by electing, in consequence, not to call evidence in support of their own case. The legal position in such a situation is, of course, that the appellants are bound by the evidence called in support of the case for the respondent Qua Plaintiff, and the case must be dealt with on the evidence as its stands ……. Where a defendant has not given evidence either in support of the statement of defence or in challenge of the evidence of the Plaintiff, the defendant must be taken to have accepted the facts averred by the Plaintiff notwithstanding the general traverse contained in the statement of defence. It is trite law that failure of the defendant to call evidence is an admission of the claimant’s case. In OMMAN V EKPE (2000) 1 NWLR (PT. 641) PG 365 @ 374 PARAS G – H, the Court of Appeal per SANUSI JCA held thus:- ….. It is trite that pleadings and evidence that are not challenged by the adverse party are deemed to have been admitted….. In the case of ADEBIYI V UMAR (2012) 9 NWLR (PT. 1305) PG 279 @ 296 PARAS F – H, MBABA JCA stated thus:- The rules governing affidavit evidence and in fact, any pleadings, is that when a fact(s) asserted, is not denied or controverted by the adverse party who has a duty to do so, the same is deemed to be admitted by him (adverse party) and the court would be justified to rely on the fact and use it to settle the issue in controversy, if the asserted fact(s) is plausible. That is the purport of Section 75 of Evidence Act, which says:- No fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing….. or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings….. The claimant further submitted that proof of issues in civil matters is on preponderance of evidence and when there is no evidence to put on one side of the scale of justice, as in this case where the defendant elected not to lead evidence, the minimum of evidence on the other side of the scale fills the scale in satisfaction of the requirement of the law as led down by the Supreme Court in MOGAJI V ODOFIN (1973) 3 – 4 SC 91 @ 94. In conclusion the claimant position is that the law is settled that, the claimant in a declaratory relief must succeed on the strength of his case and not on the weaknesses of absence of defence. See EBO V ANADI (2012) 8 NWLR (PT. 1301) PG 93 PARA E. See also SIJUADE V OYEWOLE (2012) 11 NWLR (PT. 1311) @ PG 310 PARAS E – D. Counsel submitted that the burden of proof on the claimant is discharged upon a minimal proof where the defendant failed to call any evidence, as there would be nothing to be placed on the adverse side of the scale or on the balance of probability. See MAINAGGE V GWAMMA (2004) 14 NWLR (PT. 893) PG 305 @ PP 333 – 334 PARAS H – B, see also TOTAL NIG PLC V ONUOHA (2011) 11 NWLR (PT. 725) PG 634 @ 655 – 656 PARAS H – B. In the circumstances therefore, he submitted that from the totality of the foregoing, since the defendant elected not to call any evidence and rested on the claimant’s case she is bound by the evidence called by the claimant and the case must be dealt with on the said evidence as its stands. The claimant urged the court to hold that the minimum of evidence which has been adduced by the claimant has filed the case in satisfaction of the requirement of the law as laid down in the case Mogaji V Odofin (Supra) as there is nothing whatsoever to put on the defendant’s side of the imaginary scale of justice. The learned counsel for the defendant submitted that the two basic issues that call for determination in this case are:- a. Whether the claimant was not properly dismissed from office by the defendant. b. Whether the claimant’s suit is not statute barred. Issue A It is the leaned counsel for the defendant submission that the claimant was properly dismissed from office by the defendant, considering the position of the law, the claimant’s condition of service and all the circumstances of this case. Counsel for the defendant submitted that what the law, as well as the condition of service of the defendant, stipulate are that any employee who is alleged to have committed any offence must be served with a query in writing and the said employee must be allowed to state his or her own side of the case in a reply before the disciplinary committee now makes its recommendation to the defendant’s management on the decision to be taken. The above stipulations were clearly met by the defendant in the instant case involving the claimant. The claimant himself pleaded copious facts to this effect and tendered various Exhibits confirming same. The court is then referred to paragraphs 8, 9, 10, 11 and 12 of the Amended statement of facts establishing the cause of action, as well as Exhibits G5, G6, G7, G8, G9 and G10. So, it is not in not in dispute that the claimant was queried, allowed to reply and even asked to make further oral submission before an Ad-Hoc Disciplinary Committee set up by the defendant. Counsel for the defendant submitted that the above stated averments by the claimant, as well as the Exhibits tendered by him have satisfied the requirement of Exhibit G3 (the NEPA Condition of Service) and the requirement of the law. See generally Section 41.9 – 44.0 of Exhibit G3. On the claimant’s feeble allegation of denial of fair hearing as stated in paragraph 10 and 20 of his Amended statement of facts establishing the cause of action, it is our humble submission that spurious allegation is unfounded and not supported by the evidence before the court. Firstly, Section 42.2.1 of Exhibit G3 only specifies that query must be served on the erring employee and that the said employee must be given ample opportunity to defend himself and/or tender documentary evidence in his defence. That means, an employee can defend himself either orally or through documentary evidence or both. This, it is humbly submitted, is in tandem with the law. In IMONIKHE V UNITY BANK PLC (2011) 12 NWLR (PART 1262) PAGE 624 AT PAGE 640 PARAGRAPH C, 641 PARAGRAPHS B – C, 648 PARAGRAPHS F – H AND 649 PRAGRAPHS B – C, the Supreme Court held that where an employee was served with queries and allowed to respond, which he does, he cannot complain of lack of fair hearing if he was dismissed after his reply was considered by the employee one way or the other. In the instant case, it is not the contention of the claimant that he was not served with queries or that his replies to the queries were not considered before his case was determined one way or the other. In fact, contrary to the averments in paragraphs 10 and 20 of his Amended statement of facts, the claimant expressly admitted under cross-examination that he was given an opportunity to further defend himself before the Ad-Hoc Disciplinary Committee and that he actually defended himself. This is also obvious from pages 19 – 40 of the report of the Ad-Hoc Disciplinary Committee which document was filed alongside the statement of defence and which this court is entitled to look at in deciding this case. See also paragraph 2 page 2 of Exhibit G22 where the claimant admitted defending himself before the Ad-Hoc Disciplinary Committee, as well as last paragraph page 1 of the claimant’s letter dated 14/12/2002. When asked under cross-examination whether he stated his own view on the alleged manipulation of bill before the Disciplinary Committee when he was called upon to so do, the claimant’s reply was that he told the Disciplinary Committee that he did not do it, meaning that he did not commit the offence leveled against him. Again, when asked further what his response was at the time he was confronted by the Committee with the testimony of his colleagues/co-staff against him in the matter, the claimant said “I told the Disciplinary Committee that I did not do it, that it was an error. The claimant even went further to say that he was very sure he said so to the panel. The million dollar question then is: where lies the allegation of denial of fair hearing wrongfully stated in the claimant’s Amended statement of facts? Counsel submitted that the allegation of denial of fair hearing by the claimant is nothing more than a deliberate falsehood designed to hood wink the court in the claimant’s desperate bid to concoct a cause of action where there is none. The truth is that the evidence on records as extracted from the claimant, especially under cross-examination, and the Exhibits tendered are not enough to establish the claimant’s claims before the court. He urged the court to so hold and dismiss this case. What is more, in DUKE V GOVERNMENT, CROSS RIVERS STATE (2013) 8 NWLR (PT. 1356) PG. 347 AT PAGE 366 PARAGRAPHS D – E, the apex court held that fair hearing does not necessarily mean a hearing that involves oral representation. It was held further that a hearing is fair if parties are given opportunity to state their cases even if only in writing. Counsel submitted that the defendant had even done more than the needful in ensuring strict adherence to fair hearing principle of natural justice in the instant case. Counsel urged the court to so hold and dismiss this suit. On issue B The learned counsel for the defendant submitted that the claimant’s suit is statute barred, going by the provision of Section 2A of the Public Officers Protection Act, which is applicable in the instant case. This informed the decision of defendant to apply for and obtain the leave of court on 10th November, 2014, to raise and reply on the defence that the suit is statute barred, apart from the fact that the claimant’s evidence, especially the ones extracted from him during cross-examination, negates the claim he is making before this court. The claimant has stated in paragraph 11of his Amended statement of facts establishing the cause of action that he was interdicted on 16/8/2001 shortly after the sitting of Ad-Hoc Disciplinary Committee and placed on half salary, while in January 2002, the half salary paid to him was stopped on the basis that he has been dismissed from the service of the defendant, though alleging feebly that no letter of dismissal has been served on him. Perhaps, it is more apposite at this juncture to review the evidence of the claimant himself under cross-examination. When asked about the period within which he worked for the defendant before his dismissal, the claimant answered that it was between March 1998 – January 2002. Furthermore, when asked about the last time the defendant allowed him into its office to work as a staff, the claimant said that it was in January 2002. Again, when the defendant was told the Exhibit G.10 (letter of Interdiction) states that he will be paid half salary until his case was finally disposed off and asked when last he was paid the said half salary, the claimant said that he was paid last in January 2002. The claimant admitted further under cross-examination that the News-paper page dated 15/7/2002 and admitted as Exhibit G.14 was published Six months after his dismissal. Further still, in his lawyer’s letter dated 14/8/2002 at page 2, in the penultimate paragraph, the claimant’s solicitor quoted his dismissal date as January 2002 (see Exhibit G14). Moreover, the claimant finally admitted under cross-examination that it is the defendant’s duty to pay his monthly salary assuming he had not been dismissed and that the said duty was breached in January 2002, adding that the present suit was instituted purposely to challenge his dismissal of January 2002. The position of the law is that the applicability of the statute of limitation in a case is not be deducted from the Plaintiff’s processes alone if such defence is not raised in limine but after trial. Rather, it can be gleaned even from the statement of defence and evidence led in support. See PLATEAU CONSTRUCTION LTD V AWARE (2014) 6 NWLR (PT. 1404) PAGE 519. In the instant case, what the defendant seeks to do is to rely on the evidence of the claimant himself under cross-examination as x-rayed above. It is submitted that considering the claimant’s pleading in paragraph 12 of his Amended statement of facts establishing the cause of action and the relevant Exhibits, as well as the evidence of the claimant under cross-examination, the cause of action in this case, if any, arose in January 2002. Therefore, as at 4th June, 2003 when this suit was first commenced at the Federal High Court, the claimant’s right of action has been effectively extinguished. This is because the National Electric Power Authority Act, Cap 256 LFN, 1990, (Section 1(4) thereof) which was the applicable law at the time this suit was filed, makes the Public Officers Protection Act Cap379 LFN 1990, applicable to the defendant. In N.P.A. PLC V LOTUS PLASTICS LTD (2005) 19 NWLR (PT. 959) PAGE 158 AT PAGE 181 PARAGRAPHS D – G, the Supreme Court held that for the purpose of a statute of limitation, time begins to run from the date that the cause of action accrues, and that the cause of action generally accrues on the date on which the incident giving rise to the cause of action occurs. The apex court held further in that case that proceedings must be begun, normally by the issues of a writ of summons within a period prescribed by the relevant statute. Counsel submitted that the claimant’s averment in paragraphs 22 – 24 of his Amended statement of facts establishing the cause of action will not stop the running of time under the Public Officers Protection Act. Such exchange of correspondences can neither resuscitate an already statute-barred case, nor revive an extinguished right of action in law. In N. B. N. LTD V A. T. ENG. CO. LTD (2006) 16 NWLR (PT. 1005) PAGE 210 AT PAGE 222 PARAGEAPHS F – G, the apex court held that the fact of existence of negotiation, if any, between the parties does not affect the running of time under limitation statute. See also U.B.N. LTD V OZIGI (1991) 2 NWLR (PT. 176) PAGE 677 AT PAGE 695. It is submitted that from the totality of the evidence on records, it is clear that the cause of action in this suit arose in January 2002. Even, if the claimant does not want to acknowledge the fact that he was served with his letter of dismissal in January 2002, which he refused to collect, he has by his own pleadings, documents and oral evidence under cross-examination admitted that the half salary he was been paid before January 2002 when he was interdicted was immediately stopped in January 2002 by the defendant on the basis that he had been dismissed from the service of the defendant. He even said that when he went to the defendant’s office in January 2002, he was bundled out and prevented from working for the defendant. The law is that a cause of action is constituted by a bundle of aggregate of facts which the law will recognize as giving the Plaintiff a right of action. See ANUKWU V EZE (2012) 11 NWLR (PART 1310) PAGE 50 AT PAGE 68 PARAGRAPHS F – G and 74 – 75 PARAGRAPHS F – A. Similarly, in CRUTECH V OBETEN (2011) 15 NWLR (PART 1271) PAGE 588 AT PAGE 608 PARAGRAPHS E – F, it was held that for the purposeful intendment of statues with stipulation of durational limitation, time begins to run from the moment which culminates into the date on which the cause of action accrues. Invariably, the cause of action accrues on the particular date which gave rise to the incident in question. The claimant himself has said under cross-examination that it was the duty of the defendant to pay his salary assuming he had not been dismissed and that the said duty was breached in January 2002. Firstly, it is trite law that for the purpose of statute of limitation, the cause of action arises as soon as a breach of duty to the plaintiff occurs. See DUZU V YUNUSA (2010) 10 NWLR (PART 1201) PAGE 80 AT PAGE 124 PARAGRAPHS B – C. What is more, in UJOATUONU V ANAMBRA STATE GOVT (2010) 15 NWLR (PART 1217) PAGE 421 AT PAGE 437 – 438 PARAGRAPHS E – A, it was held that in an action involving withholding of a person’s entitlement, the cause of action becomes complete from the date the aggrieved party’s entitlement becomes due but withheld by the other party. Counsel further submitted that the averment by the claimant in the pleadings that he was not served with a letter of dismissal up till now is of no consequence as far as the applicability of statute of limitation is concerned. For instance, such argument, if accepted, simply means that the claimant has not yet been vested with a cause of action of up till now. This because there is no averment or evidence that he was subsequently served with any such letter of dismissal before he instituted this action, and without a cause of action, an intending litigant cannot initiate any legitimate proceedings. See OSAGE V P.S.P.L.S. MANAGEMENT CONSORTIUM LTD (2009) 3 NWLR (PART 1128) PAGE 378 AT PAGE 399 PARAGRAPHS A – D. However, considering the overwhelming evidence on records, particularly that of the claimant himself under cross-examination, it is clear that the cause of action of the claimant actually arose in January 2002. The claimant knew this fact and he did not contest it or raise any issue as to the service of dismissal letter on him in his letters of appeal and or negotiation dated as follows: 8th March, 2002; 18th April, 2002; 14th August, 2002; 28th October, 2002; 14th December, 2002 and 16th April, 2003 respectively. The law, with due respect, is that the determination of whether an action is statute barred or not is not confined solely to the date or period stated in the writ of summons and statement of claim. It transcends to the period when every material fact which is necessary for the plaintiff to prove to support his claim of right has occurred. Initially, this could be determined from the plaintiffs pleading, or ultimately from the pleading of the defendant and evidence led thereon by the parties in support of their respective standpoints. See PLATEAU CONST. LTD V AWARE (2014) 6 NWLR (PT. 1404) PAGE 519 AT PAGE 542 – 543 PARAGRAPHS H – C. In PLATEAU CONST. LTD V AWARE (SUPRA) AT PAGE 544 PARAGRAPHS A – C, it was held that:- Where it is not apparent on the face of the pleadings that the suit runs afoul of a limitation proceedings but it becomes apparent from the evidence led that the suit it in fact in breach of any statute of limitation, the court must declare the suit incompetent for want of jurisdiction, the cause of action having gone stale. The counsel submitted that in the instant case, it is clear from the evidence of the claimant himself, especially under cross-examination that this suit is statute barred. He urged the court to so hold and dismiss this suit. In summary and conclusion the learned counsel for the defendant urged the Honourable Court to hold as follows:- a. The claimant was properly dismissed from office by the defendant. b. The claimant’s suit is statute barred and so the right of action, if any, has been Z The learned counsel for the claimant filed a reply on points of law In arguing the first issue, the defendant submitted that it complied with its conditions of service in dismissal of the claimant, simply because the claimant was issued with queries to which he replied and also was made to appear before the Ad-hoc Disciplinary Committee set up by the defendant. With due respect, the above are procedural and not the substance of fair hearing. The claimant stated clearly in paragraphs 10(a) and 10(b) that at the sitting of the ad-hoc Disciplinary Committee set up by the defendant, he was not allowed to make any representation neither was he allowed to cross-examine any of the witnesses who testified. Furthermore, the claimant stated that this Zonal Computer Manager who he was technically responsible to was not put into the picture of all that happened officially, contrary to the normal course of duties and protocols, and that the whole procedure was stage managed by the then District Manager, one Engr. A. F. Adedeji, who incidentally was the accuser in the whole episode leading to the purported dismissal. All the above, are very weighty allegations contained in the pleadings and the uncontroverted evidence of the claimant. The principle of fair hearing goes beyond mere technical procedure, but to the substantive matter and it is founded on the duo maxim,”audi alteram partem” and nemo judex in causa sua”. See EKPENETU V OFEGOBI (2012) 15 NWLR (PT. 1323) PG. 276 @ 310 PARAS D – F; PG. 310 F – H; PG. 311 PARAS A –D. Both principles were violated by the defendant in the circumstances of this case. The case of IMONIKHE V UNITY BANK PLC (SUPRA) referred to by the defendant is of no relevance in the circumstances of this case. The defendant submitted that the court was entitled to look at the report of the ad-hoc Disciplinary Committee which was not tendered in evidence. Counsel submitted that the court cannot consider a document not in evidence before it. The said document formed part of the pleadings of the defendant which was abandoned and remained so. See AREGBESOLA V OYINLOLA (2011) 9 NWLR (PT. 1253) PG. 548 @ 597 PARAS C – D. Furthermore, it was submitted that the allegation of fraud against the claimant was a criminal allegation that must be proved beyond reasonable doubt to warrant the dismissal of the claimant. See IMMA V SHERIFF (2005) 4 NWLR (PT. 914) PG. 80 @ PG. 169 PARAS G – H. The defendant failed to prove the criminal allegation as required by law. It was submitted that for the dismissal of the claimant to be justifiable in law on the ground of a criminal allegation, there must be a proof of conviction on criminal prosecution against the claimant. No such evidence was adduced by the defendant in the circumstances of this case. On Issue 2 of the defendant’s final written address; whether the claimant’s suit was statute barred or not. It is the claimant’s counsel submission that the suit is not statute barred in the circumstances of this case. The claimant’s case is premised on the purported dismissal by the defendant which was never officially communicated to the claimant. The claimant’s letter of appeal dated 14/8/2002 was in respect of the interdiction of the claimant and the unlawful prevention from entering his office after his exoneration by the Panel that investigated the allegations against him. The official response of the defendant to this letter of appeal was never communicated to the claimant until 15th May, 2003 vide a letter which was dated 5th February, 2003. This was when the defendant made it known for the first time to the claimant that he has been dismissed. Counsel further submitted, that the cause of action did not complete until the receipt of the final letter of the defendant on 15th May, 2003. Therefore, this suit was properly commenced on 4th June, 2003 within the three months limitation period provided for by Section 2(a) of the Public Officers Protection Act Cap 379 LFN 1990. Assuming without conceding, that the cause of action arose by the claimant’s letter of 14/8/2002 as claimed by the Respondent, he submitted that same has been revived by the defendant in its letter of 23rd September, 2002 wherein it promised to look into the matter and get back to the claimant. The defendant never did so until 15th May, 2003. The Supreme Court held in N.S.I.T.F.M.B V KLIFCO NIG. LTD (2010) 13 NWLR (PT. 1211), 307 @ 329, PARA C per CHUKWUMA-ENEH as follows:- …. What I must further state as settled law is that the law of limitation here has not extinguished the right to be debt: the instant debt has not been extinguished but it merely bars the right to recover the debt because of lack of specific period of time in the law of limitation from the accrual of cause of action. However, where there is acknowledgment of debt, which must be in writing signed by the party that is liable, the right to recover the debt by action is revived and what constitutes acknowledgement in such cases is a matter of fact in each case …… Furthermore, assuming without conceding that claimant’s suit was not filed within the statutory time, we submit that the defendant’s objection is improper in the circumstances. The defence of limitation law being a special one ought to be specifically pleaded. In OLAGUNJU V PHCN (2011) 10 NWLR (PT. 1254) relied upon by the defendant, the Supreme Court has stated @ PG. 124, PARAS F – G per ONNOGHEN, JSC thus:- …… a defendant/party intending to raise/rely on the defence of limitation law/statute of limitation must first of all specifically plead same otherwise the defence, being a special one, will not avail the party concerned. The rationale for the above principle is to be found within the rules of pleadings, the particular intent of which is to give notice to the party so as not to take him by surprise see KETU V ONIKORO (1984) 10 SC 265 @ 267. See also SANNI V OKENE L. G. (2005) 14 NWLR (PT. 944) PG. 60 @ PAGE 74 PARA H. It is clear from the defendant’s argument that there is a dispute as to the date when the claimant’s cause of action arose. The defendant has made reference to 20th August, 2001 (when the claimant was interdicted), January 2002 (when he was allegedly dismissed) and the letter of claimant’s counsel dated 14th August, 2002. The claimant on the other hand, claimed that he only became aware of the decision terminating his appointment on 15th May, 2003 even though the said letter was dated 5th February, 2003. This fact is contained in the claimant’s further amended statement of claim. The dispute as to which of these dates can be said to be the right date on which the cause of action arose cannot be determined at this stage but after the close of trial. The issue of statute bar can therefore not be validly determined at this stage. In ANSA V ETIM (2010) 6 NWLR (PT. 1189), 139 @ 152, PARAS G – H the Court of Appeal per OWOADE, JCA stated thus:- …. In other words, it is the duty of the trial court where the date when the cause of action arose is disputed not to determine it as a question of fact until evidence has been called on the issue. In the instant case, it is my considered opinion that the learned trial Judge would have called evidence to determine when the cause of action arose ….. Also, in KASANDUBU & ANOR V ULTIMATE PETROLEUM LTD, (2008) 7 NWLR (PT. 1086), 274 @ 302, PARAS B – D it was held that:- ….. Since there was no clear indication of when the cause of action arose or when possession was lost by the appellants in their statement of claim, the issue of time frame on which issues are joined in the pleadings must go to trial and a proper finding of fact made by the trial court after considering evidence before him. With respect, the learned trial Judge ought not to have upheld the plea of limitation when there was no clear evidence of when the cause of action arose from the writ of summons and statement of claim the only process he was obliged to consider …. The pleadings on the defendant in respect of the issue of statute barred was abandoned as there was no evidence led to contradict the pleadings and evidence of the claimant on the actual date of the receipt of the final letter of the defendant which the claimant stated was received by him in May, 2003. The court has a duty to believe these uncotroverted pleadings and evidence of the claimant. See OMMAN V EKPE (2000) 1 NWLR (PT. 641) PG. 365 @ PARAS G – H. The Honourable Court is urged to discountenance the defendant’s submission on this issue. The court is urged to dismiss this ground of objection as unnecessary reliance on mere technicality to defeat the essence of justice in this matter. In NWABUEZE V NIPOST (2006) 8 NWLR (PT. 983) 480 @ 528, PARAS G – H, the Court of Appeal relied on the wise words of Bowen L. J. in the case of Cropper V Smith (1884) 26 Ch.D 700 at 710 – 711 as follows:- … I think it is a well-established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes which they make in the conduct of their cases by deciding otherwise than in accordance with their rights. I know of no kind of error or mistake which if not fraudulent or intended to over reach, the court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline but for the sake of deciding matters in controversy and I do not regard such amendment as a matter of favour or of grace ….. In conclusion, the claimant counsel submitted that this objection is misconceived. He therefore, urged this Honourable Court to so hold and dismiss the defendant’s Notice Preliminary Objection. Having carefully examined the submissions, and the ad authorities cited by the counsel, the issues for the court to determine are:- 1. Whether the dismissal of the claimant from the employment of the defendant was unlawful to entitle him to re-instatement to his appointment. 2. Whether the action of the claimant is statute barred. On the 1st issue, when an employee is challenging his dismissal he needs to plead and prepare for the purpose of clarity, the terms and conditions of the contract of employment. He must also prove in what manner the said terms were breached by the employer. This is because the contract of service is the bedrock upon which an aggrieved worker must found his case, he succeeds or fails upon the terms. Where there is a written or documented contract of service, the court will not and should not look outside the terms stipulated or agreed therein in deciding the rights and obligations of the parties. The provisions of a written contract of service bind the parties thereto. The onus is on the employee and not the employer in this case, the claimant who alleges that his appointment was wrongfully determined to prove the wrong. The brief facts of this case are the claimant a former employee of the defendant formerly known as National Electric Power Authority was employed on the 10th of March, 1998 and appointment was confirmed on 24th September, 1999. The claimant was placed on interdiction on 28/8/2001 on half salary, shortly after he appeared before an Adhoc Disciplinary Committee. On January 2002 the half salary of the claimant was stopped on the basis that he has been dismissed from the service of the defendant, but that till date, no letter of dismissal has been served on the claimant. The case of the claimant is that the procedure set out in the National Electric Power Authority conditions of service July 1998 Edition was not followed in the alleged dismissal from the employment of the defendant as his right to fair hearing was grossly violated. The allegation made against the claimant was irregular manipulation of figures in the maximum Demand Account of Heritage Hotel, Osogbo. It is trite that an employer has the right to discipline any erring staff including the claimant for any act of misconduct. The law is that an employer can bring the appointment of his or her employee to an end for any reason or no reason at all, provided the employer follows the terms of the contract governing the relationship between the parties. What are the rules governing the relationship between the claimant and the defendant in this case. The claimant tendered Exhibit G3, National Electric Power Authority conditions of service as rules governing the relationship between the parties. As said earlier it is the duty of the claimant to place before the court the terms and conditions of service and to prove the manner the terms and conditions of service were breached by the employer. It is not the duty of the employer to prove that the dismissal was wrongful. In this suit the defendant filed his statement of defence and witness statement on Oath bit did not give evidence. But there are principles of law as enunciated by the courts that a court is entitled to look at a document in its file while writing its Judgment or Ruling despite the fact that the document was not tendered and admitted as an Exhibit at the trial. Akinola V V.C Unilorin (2004) 11 NWLR (Pt. 885) 616 and Agbahomoro V Edueyegbe (1999) 3 NWLR (Pt. 594) 170. I now turn to the issue whether the claimant has made out a case that the termination was wrongful. Looking at the facts available can it be said that the defendant denied the claimant his right to fair hearing. The claimant in his amended statement of facts and witness statement on Oath in paragraph 6 claimed that when the District Manager (D & M) Osogbo one Engr. A. F. Adedeji discovered irregularity in the statement of account of the Heritage Hotel he was issued a query with Ref. No. 243/3/C/D/15/095/2001 which he relied to. That further in 6th July, 2001 he received another query this time from Engr. S.O.F Ajao with Ref. No. 24/2/D/442/2001 (in respect of the same allegation). The query the claimant replied to. The claimant further submitted that he appeared before the Ad-hoc Disciplinary Committee on 16th August, 2001. By 20th August, 2001 he was interdicted and by January 2002 his salary was stopped on the basis that he has been dismissed. I took a careful examination of the Ad-hoc Disciplinary Committee tasked with the investigation of the allegation or irregularities into the maximum Demand Account in Oshogbo, District against Messrs A.A. Bamishile Snr. Manager (Mkt) and Mr. M. G. Olukoju Computer Centre Manager. The Committee was composed of 4 members headed by Engr. J. A. Obilowo Assistant General Manager (DISTRIBUTUION as Chairman). Eight Officials inclusive the claimant were questioned by the Committee. The statement of the claimant that he was not allowed to make any representation neither was he allowed to question any of the witnesses who testified was not correct. From the report the claimant was given every opportunity to defend himself and also given opportunity to meet those who testified. The claimant has failed to inform the court or mentioned those who testified and he was debarred or not allowed to question. Based on the facts available, I am of the view that the claimant was given ample opportunity to defend himself before his appointment was determined by the defendant, and in accordance with the terms and conditions of service of National Electric Power Authority. The claimant has failed to refer also to the provision of the conditions of National Electric Power Authority Handbook 1998 on conditions of service that were breached by the defendant. It is on record that the claimant was confronted with his allegation before his dismissal, in my view he cannot complain of lack of fair hearing. The requirement of fair hearing is satisfied by the opportunity given to the claimant to make his representation earlier oral or written. This is supported by the decision of the Supreme Court in the case of B.A. Imonikhe V Unity Bank Plc where the court held thus:- When an employer accuses an employee of misconduct by way of a query and allows the employee to answer the query and the employee answers the query before the employer takes a decision on the employment of the employee, that satisfied the requirements of fair hearing because he answered Respondents queries before he was dismissed from his employment. Having failed to establish the breach of the terms of conditions of service and having been issued a query and confronted with the allegation against him before the disciplinary panel he cannot claim that he has not been given fair hearing, his request for reinstatement therefore fails. The claimant’s alternative claim for the sum of N27,883,873 (Twenty-seven Million Eight Hundred and Eight-three Thousand Eight Hundred and Seventy-three Naira) Only as damages also fails. Damages are not awarded as a matter cause but against the defendant for his wrongful act. They are presumed by law to be the direct natural and probable consequence of the acts complained of. The defendant must have been found liable of the acts complained of and it is on that basis that the court will rests whatever damages it seeks fit to ground the claimant. The next issue to consider the issue whether or not the action of the claimant is statute barred. It is the contention of the learned counsel of the defendant that the claimant action is statute barred and caught by Section 2(a) of the Public Officers Protection Act. In application of the Public Officers Protection Act it means the action must be instituted against the public officer within the period of three months from the date of the commission of the act complained of. If the action is brought after the three months period, it will be unmaintainable. Going by the Section, the law is that a statute of limitation begins to run from the moment a cause of action arose. The issue of whether or not an action has been statute barred is one touching on the competence of not only the action, but of the court before which the action is pending. The law is that where the lacks the competence to hear and determined a matter in a proceeding, the proceeding will be a nullity no mater how well conducted. For once an action has been found to be statute barred although a plaintiff may have his cause of action, his right of action his legal right to prosecute that action has been taken away by statute. In that circumstance, no court has jurisdiction to entertain his action. In order to determine the period, consideration must be given to the writ of summons and the statement of claim alleging when the wrong was committed and by comparing that date with the date on which the writ of summons was filed. If the time on the writ of summons is beyond the period allowed by the limitation law then the action is statute barred. The learned counsel for the defendant submitted that paragraph 11 of the claimant’s amended statement of facts establishing that the cause of action stated that the claimant was interdicted on the 16th August, 2001 after the sitting of the disciplinary committee. While in January 2002 the half salary paid to him was stopped on the basis that he has been dismissed from the service of the defendant. Although the claimant alleged that no latter of dismissal had been serve on him. The defendant counsel submitted further that when the claimant was asked when last he worked for the defendant before his dismissal he answered that it was between March 1998 to January 2002, and when last was he allowed into the office to work as a staff he answered January 2002. That the claimant further admitted that Exhibit G14 was published 6 months after his dismissal. The learned counsel for the defendant further contended that the Solicitor’s letter dated 14th August, 2002 in paragraph 2 in the penultimate paragraph that the solicitor quoted the claimant dismissal date has January 2002. That it is clear from the evidence on record that the cause of action in this suit arose in January 2002, and the action is statute barred. On his part the learned counsel to the claimant submitted that the claimant’s suit is not statute barred in the circumstances of this case and that the purported dismissal by the defendant was never officially communicated to the claimant. That the claimant’s letter of appeal dated 14th August, 2002 was in respect of interdiction and the unlawful prevention from entering his office after his exoneration by the panel that investigated the allegation against him. The learned counsel for the claimant claimed that it was when the response of the defendant to his letter of appeal was communicated to the claimant by 15th of May, 2003 vide a letter dated 5th February, 2003 that the claimant got to know for the first time that he has been dismissed. That the cause of action did not complete until the receipt of the final letter of the defendant on 15th May, 2003 and the suit commenced on 4th June, 2003 within 3 months. The cause of action in any suit accrues and becomes actionable a day after the claimant received his letter of dismissal, while at the same time waiting for his appeal. In the case at hand, the claimant admitted in his submission on pints of law that he received his final letter from the defendant on May 2003. It is my view that the claimant cause of action arose January 2002 has was established by the claimant’s counsel letter. The time start to run from January 2002, the claimant ought to have initiated the action immediately he was prevented from entering his office and when his salary was stopped. It follows therefore, that the claimant action is statute barred. The letter of May 2003 cannot avail the claimant case in that the letter only confirmed the position of the defendant that he had been dismissed. The law does not prevent parties from negotiating but the time begins to run. The case cited by the claimant counsel is not relevant to the case in that the defendant did not accept they were wrong. The claimant ought to have initiated this action immediately the salary was stopped in January 2002. What happens if the defendant refuses to reply to his letter of appeal? Will he wait forever and not challenged the defendant’s action. The reply he was waiting for only confirmed that he was no longer wanted in the establishment. For the reasons given above, the claimant case fails and is hereby dismissed. Judgment is entered accordingly. ______________________________ HON. JUSTICE O. A. SHOGBOLA JUDGE