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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE OWERRI JUDICIAL DIVISION HOLDEN AT OWERRI BEFORE HIS LORDSHIP HON. JUSTICE O. Y. ANUWE Date: January 27, 2016 SUIT NO: NICN /OW/25/2014 Between Akpuchukwu I. Dorathy - Claimant And Independent National Electoral Commission - Defendant Representation Nnamdi Ozuzu for the Claimant G. O. Dunga (Miss) holding the brief of E.I. Okanni for the Defendant. JUDGMENT The Claimant instituted this suit by a complaint filed on the 7th day of March, 2014 and claimed against the Defendant as follows: 1) A Declaration that the purported termination made on 10th October, 2013 and dated 11th October, 2013 against the claimant was unlawful, unfair and unjust. 2) A Declaration of the Honourable Court that the Claimant is entitled to be re-instated with all her entitlements and benefits accruing thereof. OR IN THE ALTERNATIVE 1. Fifty Million Naira (N50,000,000.00) general damages for unlawful, unfair and unjust termination of the Claimant's appointment as a senior staff of INEC by the Defendant on a letter dated 11th October, 2013 headed "TERMINATION OF APPOINTMENT" and signed by one Musa H. Adamu H.R.M. INEC. The complaint was filed alongside other processes in the suit and was served on the defendant. Hearing commenced on 1/7/2014, the Claimant testified as a sole witness and called no other witness. At the close of the Claimant’s case, the Defendant rested her case on the Claimant's case without calling any witness. Final written addresses were filed in accordance with the rules of this court, starting with the defendant. The defendant filed its written address on 29th September 2015 and the Claimant’s written address was filed on 19th October 2015. They adopted their respective written addresses on 12th November 2015. In the defendant’s final address, Counsel proposed 5 issues for determination, which are as follows: 1. Whether the case of the claimant is not statute barred by virtue of Section 2 (2) (a) of Public Officers Protection Act, Cap P41 LFN 2004 and as such robs this Honourable Court of jurisdiction to determine this suit. 2. Whether the court has jurisdiction to determine this case as appropriate filling fees were not paid by the claimant. 3. Whether the court has jurisdiction to entertain this suit as the writ is unsigned. 4. Whether the defendant was right in terminating the appointment of the claimant. 5. Whether the court can grant the alternative relief of the claimant. With regard to issue one, counsel submitted that the Court lacks the jurisdiction to entertain this suit by virtue of Section 2(2)(a) of the Public Officers Protection Act. This submission stemmed from the fact that the extant suit was filed outside the three month period stipulated by the above-cited Act. Counsel cited the case of OFFOBOCHE vs. OGOJA LOCAL GOVT {2001) 90 LRCN 2782 @ 2798 where the Court held thus: “The question whether the Public Officers Protection Law applies to the institution is not being raised for the first time in this Court. In the recent case of IBRAHIM vs. JUDICIAL SERVICE COMMISSION KADUNA STATE (1986) 64 LCRN 5044; (1998) 14 NWLR (Pt. 584). This Court held that "any person" in Section 2(a) admits and include artificial persons. IGUH JSC at page 36 in that case said "... it seems to me Nigerian Law is not limited to natural persons or human beings only as the Appellant now vigorously appears to contend. It clearly admits and includes artificial persons such as corporate sole, company...” On the strength of the above authority, counsel argued that the Defendant is a Public Officer protected by Section 2(a) of the Public Officers Protection Act. It is counsel’s opinion that the cause of action in the extant suit arose from a letter dated 11th October, 2013 and titled "TERMINATION OF APPOINTMENT". The claimant admitted in paragraph 14 of her Statement of Claim that her appointment was terminated on the 10th day of October, 2013 through a letter dated 11th of October, 2013. This suit was filed 17thday of March, 2014. Thus it is for this Court to determine its jurisdiction as jurisdiction is the life wire of any litigation. See the cases of: 1. APGA vs. ANYANWU (2014) 20 NMLR 148 at P. 168 paras. D-E 2. MADUKOLU vs. NKEMDILIM(1962) 2 SCNLR 341 3. INAKOJU vs. ADELEKE (2007) 4 NWLR (Pt. 1025) 4 27 at 58 F Pt. 176-177 paras H-D. Counsel urged the Court to examine the processes of the Claimant, i.e. the Writ of Summons and Statement of Claim, including admitted documents in determining that it is not seised of jurisdiction to adjudicate on this suit. See TUKUR vs. GOVERNOR OF GONGOLA STATE (1989) 4 NWLR (Pt. 117) 517. This assertion of counsel is anchored on the case of SULGRAVE HOLDING INC. & 19 ORS vs. FEDERAL GOVT. OF NIGERIA & 3 ORS (2012) 17 NWLR (Pt. 1329) SC Pg. 309 para 315 where the Supreme Court held that the Public Officers Protection Act is a Statute of Limitation. The import of its Section 2(a) is that where any action against any person protected by the Act must be commenced within three months. In the Court’s words, where an action is commenced outside the prescribed period “the Public Officers Act removes the right of action, enforcement or judicial relief in a Plaintiff. This leaves a Plaintiff with a bare and hollow cause of action which he cannot enforce because the alleged cause of action is Statue Barred and cannot be maintained.” On this issue, counsel submitted that the Claimant is barred by the Public Officers Protection Act, 2004 from litigating same as the cause of action has been removed by statute from the Claimant. Regarding issues two and three, counsel stated that the process dated 17thday of March, 2014 was filed without any filling fees. Also, the writ/claim was not also signed. It is trite law that the issue of not paying filling fees, signing processes go to the root of jurisdiction like in this instance case. See ONWUGBUFOR vs. OKOYE (1996) 1 NWLR (Pt. 424) 252 and Omega bank PIc vs. O.B.C Limited (2006) 1 SC (Pt. 1) 49. Counsel urged the court to decline jurisdiction and strike out this suit in its entirety. It is counsel’s contention regarding issue four that the Defendant was right in terminating the Claimant's appointment. It is on record that the Claimant was dismissed by the Defendant for gross-misconduct after answering queries issued to her. Also, the Independent National electoral Commission (Staff Condition of Service 2007 Revised Edition) regulates the discipline of the staff of the Defendant. The said Rules was tendered by the claimant and admitted in evidence. Rules 3.06 and 3.18 of the Independent National Electoral Commission (Staff Condition of Service) 2007 revised edition states as follows: “3.06: Disciplinary proceedings in accordance with these regulations shall be initiated on the ground of misconduct, and employee's general incompetence or inefficiency. 3.18: DISMISSAL a)….. … b) an employer may also be dismissed on the following grounds; (i)……… (ii) Serious misconduct whether or not in relation to the performance of his duty.” Counsel urged the court to apply the decision of the Supreme Court in the case of UNIVERSITY OF CALABAR vs. ESSIEN (1996) 10 NWLR (Pt. 477) at 262, where it was held that; “where an employer dismisses or terminates the appointment of an employee on grounds of misconduct, all the employer needs to establish to justify the action is to show that the allegation was disclosed to the employee, that he was given a fair hearing ... " See also OLATUNBOSUN v. NISER COUNCIL (1998) 3 NWLR (Pt. 80) 25 (1988) 1 NSCC 1025; YUSUF v. UBN (1996) 6 NWLR (Pt. 457) 632.” On this issue, counsel submitted that contrary to Claimant's claim in paragraph 16 of its Statement of Claim that no committee was set up to follow the disciplinary procedure laid down under Article 3.19 (a-o) of the staff condition of service, and that no opportunity was given to her to furnish any representations within any specified time; an employer has a right to dismiss an employee for misconduct and that the right cannot be taken away from the employer where he observed the rules of fair hearing. The Defendant gave the claimant ample opportunity to react to the query issued. Regarding the issue of fair hearing, counsel submitted that an employee against whom allegation of misconduct made by way of written query and was given the opportunity to reply and actually replied to the query before being disciplined by the employer cannot complain of breach of fair hearing. The claimant utilized the opportunity of the reply to the query to state her case as deposed to in Paragraph 8 of her affidavit. It is counsel’s argument on issue five that the Claimant is not entitled to the monetary damages claimed. This is owing to the fact that the claimant failed to plead and lead evidence as to how she arrived at the sum quoted in her claim. She led no evidence as to how much she received as salary or allowances in the employment of the Defendant. The Court will not grant damages not pleaded or proved. See the case of AHMADU BELLO UNIVERSITY HOSPITAL MGT. BOARD vs. ANYIP (2011) 44 WRN 1. Counsel urged the court to dismiss this suit in its entirety for lacking in merit or in the alternative strike same out for want of jurisdiction and hold that the Claimant has failed woefully and abysmally to proof her case before this Court. In the introduction of the claimant’s final written address, counsel sought the leave of court to respond to certain issues raised in the defendant’s final written address. First, counsel argued that the issue that the extant case is statute barred by the operation of Section 2 (2) (A) of the Public Officers Protection Act is an abuse of Court process. This argument is anchored on the premise that the defendant’s counsel earlier Notice of Preliminary Objection filed on 22 October 2014 on the same subject matter was not diligently prosecuted by the defendant. On 12/11/2014, when this suit was fixed for definite hearing after serving the Defendants 3 Hearing Notices ordered by this Court, the said Notice of Preliminary Objection and all papers and processes filed by the Defendants were struck out. It is counsel’s contention that the striking out of the defendants objection has laid to rest any issue of statute bar. Thus, any resurrection of the same defence at the stage of final address amounts to abuse of process of Court; and have been roundly condemned by the Courts at various occasions. See: OKAFOR vs. A.G. ANAMBRA & ORS (1991) 7SCNJ (Pt. 11) 345 at 366. The Supreme Court stated thus: “abuse of process of Court is improper use of the issue of judicial process or process already issued to the irritation or annoyance of the opponent” See also GOVERNOR ANAMBRA STATE vs. ANAH (1995) 8 NWLR (Pt. 412) 213 and UBAKA & SONS LTD vs. EZEKWE 2000 FWLR (Pt. 1) 77 at 80. The second issue addressed by counsel borders on the Defendant's complaint of the non-payment of filing fees and the Writ of Summons not signed. He submitted that the claimant paid the fees as assessed by the Court Registry evinced by their receipt of payment. Hence, it is late in the journey of the extant suit to raise any valid issue on this subject matter as any default is the responsibility of the Court Registry not the litigant. Regarding the signing of the writ in this suit, counsel contended the writ in the suit was duly and properly signed. He argued further that it is now trite Law that the statement of Claim in a matter supersedes the Claim or Writ. Thus, since the Statement of Claim in the Court’s file is signed, counsel stated that it is the authentic process that suffices. Counsel urged the Court to discountenance the defendant counsel’s arguments on these issues because they are diversionary and serve no useful purpose in this matter. At this juncture, counsel proceeded to raise a sole issue for determination in this suit, which is: “Whether the Claimant has proved her case in this case.” In arguing this issue, counsel stated that the defendant’s failure to file a defence to the Claimant’s case means the evidence of the Claimant stands unchallenged. Counsel cited the cases of: 1. NDINWA vs. NWAEBO 2011 FWLR (Pt. 511) 1905 at 1911 para E. 2. AWOSHO vs. DADA (1984) 73C 149 3. STATE vs. OKA (1975) 9-11 SC17 4. OBA ELEGUSHI vs. OSENI (2005) 12 MJSC 33 at 61 para B-C He argued that the Claimant by her pleadings and evidence in Court showed plainly that she was a victim of circumstances and high handedness of her employer. Also, her employer failed to apply the procedure laid down in its STAFF CONDITIONS of SERVICE (Revised Edition October, 2007) with particular reference to Chapter Three with the sub heading Discipline, of a staff of her cadre in the Defendant’s employment. It is counsel’s submission that the relationship between the Claimant and Defendant is not an ordinary master and servant relationship but that of statutory employment. This is owing to the fact that the Defendant is a creature of Statute. Counsel referred the court to the case of BAMGBOYE vs. UNIVERSITY OF ILORIN (2001) FWLR (Pt. 32) 12 where it was held that: “Employment with statutory flavour is different from ordinary master and servant, consequently the only way to terminate such a contract of service with statutory flavour is to adhere strictly to the procedure laid down ... in the matter of discipline of such a person, the procedure laid down by the applicable law must be fully complied with. If materially contravened any decision affecting the right or reputation or tenure of office of that person may be declared null and void in an appropriate proceeding.” See also the cases of: i. OLANIYAN vs. UNIVERSITY OF LAGOS (1985) 2 NWLR (Pt. 9) 599 ii. SHITTA BEY vs. FED. PUBLIC SERVICE COMMISSION (1981) 1 SC4.1 at 56 Counsel urged the court to discountenance the legal authorities cited under this heading by Defendant's Counsel as they are not on all fours with the present case. Regarding, the issue of the proof of damages, Counsel argued that the Claimant in her pleadings and evidence she adopted in Court, stated at what grade level and salary scale she was terminated and tendered all the promotion letters and level and salary scale she was promoted to, till her unlawful termination. The damages claimed in this suit encompass not only non-payment of salaries and entitlements but of ill-health she has suffered and is still suffering till now. The damages sought by Claimant, according to counsel flows from the unlawful termination of her appointment. The claimant was not cross-examined on this issue, which stands unchallenged. Counsel urged the Court to rely on the Claimant's pleadings and evidence in Court, to hold that the Claimant has proved her case and award the reliefs sought in this suit. Court’s decision After a careful consideration of the case presented by the claimant and after having heard the submissions of the learned counsels to the parties in their final written addresses, I have identified two issues for determination in this matter. The issues are: 1. Whether the termination of the claimant’s employment was wrongful. 2. Whether the claimant is entitled to any of the alternative claims for re-instatement or payment of general damages. Before I proceed to examine the issues, I will quickly comment on the submissions of the defendant’s counsel in issues 2 and 3 of his final written address where he argued that this court lacks jurisdiction to entertain this suit because the claimant’s processes dated 7th day of March, 2014 were filed without payment of filling fees and they were not also signed. It appears to me that the copy of the processes served on the defendant did not reflect the matters which are now the subject of its counsel’s submission. The copy which is in the record of this suit shows that filing fee was paid and the processes were signed by the claimant’s counsel. ISSUE 1: In determining the first issue I have formulated for determination in this judgment, it is necessary to examine the evidence adduced by the claimant in proof of her case. The claimant testified as the only witness in her case. It is the claimant’s evidence that she was employed by the defendant as a Personnel Officer on Grade Level 09 on 15th March 1999 and the appointment was confirmed on 14th June 2001. She served the defendant for 14 years before the termination of her employment. In these years, she rendered her services with diligence and dedication and was accordingly rewarded with rapid promotions such that as at 1st January 2012, she had reached the position of Chief Admin Officer on Grade Level 14. To further establish these facts, the Claimant’s employment letter, confirmation letter and promotion letters were admitted in evidence as Exhibits C1, C2, C3, C4, C5 and C6. The cause of the Claimant’s instant action was the termination of her employment by the defendant vide the letter now in evidence as Exhibit C10 dated 11th October 2013. It is the claimant’s evidence that the termination of her employment arose from the Oguta L.G.A re-run election held in June 2013 where she was alleged to have deliberately shared out ballot papers meant for addendum register for Egwe/Egbuoma Ward 2 polling unit 001. She was issued the query in Exhibit C7 dated 23rd July 2013 on the allegation and she submitted a reply to the query. It is the claimant’s evidence that in her reply to the query, that is Exhibit C8, she denied the allegation and further explained her role in the incidence. But her employment was terminated nonetheless. The claimant contended that no committee was set up to investigate the allegation as required in the defendant’s staff condition of service nor was she informed on the offence alleged against her. She was also not given fair hearing as she was not giving opportunity to defend herself before any committee and was also not shown any documentary evidence used against her. She stated further that the defendant did not follow the disciplinary procedure laid down in the condition of service before her employment was terminated. The claimant concluded that the termination of her employment was unfair and unjust and this has affected her health. The defendant did file a Statement of Defence by leave of this court on 29th April 2015 but it failed to call any witness to prove the averments in the Statement of Defence. The defendant’s counsel informed this court on 20th May 2015 that the defendant will not call evidence but will only rest its case on that of the Claimant and the Statement of Defence. Let me state here that by filing Statement of Defence without calling any witness to substantiate facts pleaded in the Defence is tantamount to no defence at all. Pleadings contain only material facts and not evidence. Pleadings are themselves not evidence. Therefore, when not supported by evidence, pleaded facts are deemed abandoned by the party and are liable to be struck out by the court. See NEPA vs. ADEBGERO (2003) FWLR (Pt. 139) 1556; I.N.E.C vs. A.C (2009) All FWLR (Pt. 480) 732 at 803; THE ADMINISTRATORS/ EXECUTORS OF THE ESTATE OF GENERAL SANI ABACHA vs. EKE-SPIFF (2009) All FWLR (Pt. 467) 1 at 35. This court will therefore deem the pleadings filed by the set defendants as having been abandoned. The effect will be that the Defendants have no defence to the Claimant’s case. In THE ADMINISTRATORS/EXECUTORS OF THE ESTATE OF GENERAL SANI ABACHA vs. EKE-SPIFF (SUPRA) at 35/36, it was stated thus- “Where a defendant offers no evidence in support of his pleading, the evidence before the trial court goes one way with no other set of facts or evidence to put on the other side of the proverbial or imaginary scale of balance as against the evidence given by or on behalf of the plaintiff. The onus of proof in such a case is naturally discharged on minimal proof” The further implication of this course taken by the defendant is that the facts and evidence presented by the claimants have been admitted by the defendant, having not challenged or controverted the facts. In that case, I see no reason why I should not accept the Claimants’ case as proved. In IYERE vs. BENDEL FEEDS AND FLOUR MILL LTD (2009) All FWLR (Pt. 453) 1217 at 1247 it was held that- “Where evidence given by a party is unchallenged or uncontroverted, a court of law must accept and act on it unless it is palpably incredible”. See also OYENIYI vs. ADELEKE (2009) All FWLR (Pt 476) 1902 at 1922. I have carefully evaluated the evidence supplied by the Claimant, and it is my view that the evidence is credible. It has also not been challenged. In addition, the Claimant’s case is that the termination of her employment did not follow the disciplinary procedure laid down in the Staff Condition of Service, which is Exhibit C11. The Claimant has said that no committee was set up to investigate the allegation; she was not informed of the offence alleged against her. She was also not given fair hearing as she was not given an opportunity to defend herself before any committee and was also not shown any documentary evidence used against her. There is no fact or evidence from the defendant to show otherwise. I have examined the contents of Exhibit C11 and I find that the disciplinary procedure in paragraph 3.19 was not followed when the Claimant’s employment was terminated. The condition of service generally provides, among other general terms of the contract, for the manner or procedure for termination of the employment. Where the procedure for termination is provided, it is that procedure that must be followed and termination will be considered wrongful if the procedure is not followed. See MOMOH vs. CBN (2007) All FWLR (Pt. 395) 420 at 434. In view of the evidence of the Claimant, I have no difficulty in coming to the conclusion that the termination of the Claimant’s employment was wrongful. It is at this point I should consider the argument of the Defendant’s counsel in his address where he urged this court to decline jurisdiction to determine the suit on the ground that the Claimant’s action is Statute Barred by the effect of Section 2 (a) of the Public Officers Protection Act. The Defendant’s counsel submitted that the Defendant is a public officer and the claimant’s cause of action arose on 11th October 2013 when she received the termination letter but commenced this suit on 7th March 2014. Whereas, by Section 2 (a) of POPA, she was expected to commence this suit within 3 months of the cause of action and not having done so, this suit has become statute barred. In his reaction to this line of objection, the claimant’s counsel submitted in his final written address that the defendant’s counsel’s objection at this stage of final addresses amounted to an abuse of court process because having withdrawn an earlier Notice of Preliminary Objection on the same ground, raising same again in the final address is an abuse of process. Let me first point out that the initial Notice of Preliminary Objection filed by the defendant was withdrawn by the defendant’s counsel on 29th April 2015 and same was accordingly struck out. The Notice of Preliminary Objection was not heard by this court on its merit nor did the court make any ruling as to the merit of the application. In such a situation, the defendant is not precluded from bringing the application again. It must also be clearly emphasized that an objection to the jurisdiction of court can be raised at any stage of the proceeding, and even for the first time on appeal. See OUR LINE LTD vs. S.C.C. NIGERIA LTD (2009) All FWLR (Pt. 498) 210 at 234; OKUDANO vs. KEREGBE (2003) FWLR (Pt. 148) 1384; OGUNLEYE vs. OKE (2009) All FWLR (Pt. 469) 552 at 577. Therefore, in my view, it is proper in law for the defendant to raise the objection to the competence of the claimant’s suit in the final written address. The Claimant’s counsel’s argument that the objection raised in the Defendant’s final written address amounts to abuse of court process cannot be sustained. Section 2 (a) of Public Officers Protection Act provides- “Where any actions, prosecution or proceedings commenced against any person for any act done in pursuance or execution or intended execution of any act of law or any public duty or authority, or in respect of any alleged neglect or default in the execution of any such act, law, duty or authority, the following provisions shall have effect. a) The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three (3) months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three (3) months next after the ceasing thereof”. This provision is to the effect that actions against public officers must be filed within 3 months of the accrual of the cause of action otherwise, the right to enforce the action will be barred and the court will no longer have jurisdiction to entertain the action. See IBRAHIM vs. J.S.C, KADUNA STATE (1998) 12 SC 20; EGBE vs. ALHAJI (1990) 3 S.C (Pt. 1) 63. In this case, there is no doubt that the defendant is a public officer and this suit was filed on 7th March 2014 whereas the cause of action, which is the termination of the claimant’s employment, occurred on 11th October 2013. This suit was not filed against the Defendant within three months of the cause of action as prescribed in Section 2 (a) of the Public Officers’ Protection Act. In paragraphs 14 to 19 of the Claimant’s Statement of Facts and in the evidence of the Claimant, the claimant has made out a case that the defendant did not comply with the provisions of the condition of service and the rule of natural justice when it terminated the claimant’s employment. I have also found in this judgment that the termination of the claimant’s employment by the defendant was wrongful. There are now established exceptions to the application of the Public Officers’ Protection Act. POPA does not protect public officer who acted in abuse of office, in bad faith or acted with no semblance of legal justification or outside the scope of his authority. In ANKWERE vs. ADEWUNMI (1966) 1 All NLR 129 at 133, Brett JSC stated that: "The law is designed to protect the officer who acts in good faith and does not apply to act done in abuse of office and with no semblance of legal justification" Also, LAGOS CITY COUNCIL vs. OGUNBIYI (1969) 1 All NLR 297 at 299, the Supreme Court, per Ademola, CJN, said: "...the Act necessarily will not apply if it is established that the defendant had abused his position for purpose of acting maliciously. In that case he has not been acting within the terms of the statutory or other legal authority. He has not been bona fide endeavouring to carry it out. In such a state of facts he has abused his position for the purpose of doing wrong, and the protection of this Act, of course, never could apply to such a case." Furthermore, in OFFOBOCHE vs. OGOJA LOCAL GOVERNMENT (2001) FWLR (Pt. 68) 1051 at 1067 it was held that: "Abuse and bad faith are factors that deprive a party who would otherwise have been entitled to the protection of section 2(a) of the Public Officers (Protection) law, of such protection. The burden is on the plaintiff to establish that the defendant had abused his position or that he has acted with no semblance of legal justification." Similarly, the Supreme Court held in HASSAN vs. ALIYU (2010) All FWLR (Pt. 539) 1007 at 1039 that: “Where a public officer acts outside the scope of his authority or without semblance of legal justification, he cannot claim the protection of the Pubic Officers’ Protection Act. It is the duty of the plaintiff/appellant to adduce evidence or facts to establish the bad faith, lack of semblance of legal justification etc…” In all these authorities, particularly the OFFOBOCHE and HASSAN cases, it is the position of the law that there must be evidence from the claimant showing that the defendant acted in abuse of office, in bad faith or acted with no semblance of legal justification or outside the scope of its authority before the exception can be applied to disentitle the public officer of the protection under the Public Officers’ Protection Act. It should be noted that there is a distinction between when the objection on ground of POPA is raised in limine and when it is raised after evidence has been taken. When raised in limine, the only duty of the court at that stage is to determine whether the suit is maintainable, that is whether it was commenced within three months as prescribed by statute and not whether the defendant was liable. But where it was raised after evidence has been taken, as in this case, this court can examine the evidence to see if there is evidence that the protection under the Public Officers’ Protection Act has been vitiated by abuse of office, bad faith absence of legal justification or outside the scope of authority. In EGBE vs. ALHAJI (supra) at 80-81, Uwais JSC (as he then was) stated this distinction in these words: “In a civil action where the defendant invokes in limine the protection under Section 2 (a) of the Public Officers Protection Law Cap 114, (which is indeed a defence by way of limitation of action); it is, as laid down in Fred Egbe v. Justice Adefarasin (supra), not proper for the trial court to infer or conclude from the pleadings that the protection afforded the defendant by law is has been vitiated by malice or bad faith. For what the trial court is obligated to decide at that stage is whether the action is maintainable and whether not the defendant is liable. The proof of liability can only come about after evidence in support of the pleadings has been adduced by the parties or the plaintiff.” In this case, evidence has been taken. The objection was raised at the stage of final addresses. From the evidence of the Claimant, which evidence is not challenged, I find that, in the termination of the claimant’s employment, the defendant acted without legal justification, acted outside the scope of its authority in the condition of service and in bad faith when it failed to comply with the terms of the condition of service. In the result, the defendant cannot take protection under the Public Officers’ Protection Act in this case. Therefore, I hold that, in the circumstances of this suit, POPA does not apply to bar the suit. ISSUE 2: Having come to find that the termination of the claimant’s employment was wrongful and that the suit is not statute barred, the next task before this court is to determine the appropriate remedy for the wrongful termination of the claimant’s employment. The claimant has sought two alternative reliefs of either re-instatement or payment of general damages. I will have to examine these claims in line with legal principles and evidence on record to see whether the claimant is entitled to any of the alternative claims. The claimant has sought an order re-instating her to her employment with the defendant. The general rule is that re-instatement can be ordered only where the employment enjoys statutory flavour. Therefore whether the claimant is entitled to this relief or not depends on the nature of the employment relationship which existed between her and the defendant. It is then necessary to ascertain the relationship between the parties to determine whether it is an employment with statutory flavour or one of ordinary master and servant. In this case, the Claimant only stated that she was employed by the defendant and that the condition of service is Exhibit C11. She did not plead or give evidence to the effect that her employment with the defendant enjoys statutory flavour. It was only in the final written address of the claimant’s counsel that allusion was made to the fact that the Claimant’s employment had statutory flavour. Counsel’s basis for his contention is that the Defendant is a creation of statute, therefore, employment of its staff enjoy statutory flavour. The defendant is no doubt a constitutional establishment. See section 153 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). See also Section 1 of the Electoral Act, 2010. However, it is now well settled that the fact that an employer is a constitutional or statutory body or government agency, does not mean that the employment of its servants or employees necessarily becomes a contract with statutory flavour. See C.B.N vs. ARCHIBONG (2001) FWLR (Pt. 58) 1032 at 1049; IKHALE vs. F.A.A.N (2003) FWLR (Pt. 181) 1726 at 1741; OPUO vs. N.N.P.C (2002) FWLR (Pt. 84) 11 at 26. An employment is said to have statutory flavour or governed by statute where the terms and conditions of the contract of employment; the manner of the employment and the termination; are specifically provided for by statute or contained in a regulation made under the statue. Any other employment outside that category is governed by the terms under which the parties agreed to be master and servant. See OBAJE vs. N.A.M.A (2014) All FWLR (Pt. 732) 1811 at 1826. In ODONIBOYE-OBU vs. N.N.P.C (2003) FWLR (Pt. 146) 959 at 992, the Supreme Court, per IGUH JSC, held- “Two of the vital ingredients that must co-exist before a contract of employment may be said to import statutory flavour include the following: 1. The employer must be a body set up by statute. 2. The stabilizing state must make express provisions regulating the employment of the staff of the category of the employee concerned, especially in matters of discipline.” See also N.I.I.A vs. ANYAFALU (2006) All FWLR (Pt. 325) 141 at 162; C.B.N vs. JIDDA (2001) FWLR (Pt. 47) 1065 at 1082. Neither the 1999 Constitution nor the Electoral Act 2010 contain any provision on the manner of employment, conditions of employment or manner of termination of the employment of employees of the Defendant. The only condition of service which the Claimant made reference to in this matter is that of Exhibit C11. The case of the claimant is that the terms and conditions of her employment are as stipulated in the Exhibit whose stipulated procedure for termination of the employment of the defendant’s employees was not followed when her employment was terminated. From this fact, it is clear that the terms and condition of the claimant’s employment are not contained in the Constitution or the Electoral Act but governed by the condition of service in Exhibit C11. I have also perused the content of Exhibit C11 but I cannot find anywhere where it made the Claimant’s employment subject to any statute or regulation. In the result, it is my humble view that the Claimant’s employment did not enjoy statutory flavour. The effect of the condition of service in Exhibit C11 on the Claimant’s employment with the Defendant is that the employment was purely that of master and servant under the common law. In purely master servant relationship, of the nature of this case, re-instatement is not the appropriate remedy for wrongful termination of the employment. It is settled law that in master and servant relationship, once there is a purported termination of the employment, the court will rarely make an order that it still subsists. This is on the principle that the court cannot force a servant on an unwilling master. See TEXACO NIG. PLC vs. KEHINDE (2002) FWLR (Pt. 94) 143 at 164; JIRGBAGH vs. U.B.N PLC (2000) FWLR (Pt. 26) 1790 at 1807; U.B.N LTD vs. OGBOH (1995) 2 NWLR (Pt. 380) 647. The point must also be emphasized that in master and servant relationship, once any of the parties have exercised his right under the contract to terminate the employment, whatever perceived defect exists in the manner of termination of the contract is irrelevant, the employment remains terminated. The Supreme Court, in ESIEVWORE vs. NEPA (2002) FWLR (Pt. 124) 398 at 408, held as follows- “The principle is that where there has been a purported termination of a contract of service, a declaration to the effect that the contract still subsists will rarely be made.” In the same vein, it was held in IKHALE vs. FAAN (2003) FWLR (Pt. 181) 1726 at 1742 that- “It is the law that in ordinary cases of master and servant, a repudiation of the contract of employment by wrongful dismissal of the servant by the master puts an end to the contract”. Therefore, the order for re-instatement sought by the claimant has the effect of specific performance or the continuance of the contract of service between the parties. It cannot be granted in this case in view of the employment relationship between the parties. Accordingly, the claimant’s claim for re-instatement fails. On the other hand however, the acceptable remedy for an employee in a master and servant employment whose employment was found to be wrongfully terminated is award of damages. It is on this note I will proceed to consider the claimant’s alternative claim for general damages. The Claimant claims the sum of N50,000,000.00 (Fifty Million Naira) as general damages for the wrongful termination of her employment. It has been decided in plethora of cases that a master can terminate the employment of his servant at any time but if the termination is done in a manner in contravention of the condition of service, the employer must pay damages for breach of contract. See NEPA vs. ENYONG (SUPRA) at 474; CBN vs. ARCHIBONG (SUPRA) at 1047; ARINZE vs. FIRST BANK (2000) 1 NWLR (Pt. 639) 78. The measure of damages usually awarded in contract of service cases is the salary for the period of notice which the employer would have given as notice to terminate the employment and any other entitlement outstanding to the credit of the employee. The general damages sought by the claimant in this case appear to be in the nature of general damages for injury sought in ordinary civil claims and not one for damages for wrongful termination of employment. The point must therefore be made here that “general damages” is not awarded in actions between master and servant. The law is that an employee cannot be awarded general damages in an action between him and his master. See P.Z & CO. LTD vs. OGEDENGBE (1972) All NLR 206 at 210; PIONEER MILLING CO. LTD. vs. NANSING (2003) FWLR (Pt.151) 1820 at 1827-1828. Therefore, the general damages sought by the claimant cannot be granted. The claim also fails. However, Section 14 of the National Industrial Court Act 2006 provides that this court has the power to grant all such remedies as any of the parties may appear to be entitled to in respect of any legal or equitable claim brought before the Court so that all matters in dispute between the parties may be completely and finally determined. I am inclined therefore to consider the Claimant’s claim for damages in relation to the measure of damages usually awarded in cases involving contract of service. In master and servant relationship, any of the parties can terminate the employment at any time, with or without any reason. But in doing so, the party terminating the employment must comply with the agreed procedure for doing so. In this case, it is already the finding of this court that the defendant did not follow the prescribed procedure when the claimant’s employment was terminated. Furthermore, the termination letter, Exhibit C10, is dated 11th October 2013 and the claimant’s employment was terminated “with effect from 10th October 2013”. In paragraph 3.16 (b) of the condition of service, the Defendant was required to give one month’s notice of termination to the Claimant or pay one month’s salary in lieu of notice. The Claimant was not given one month notice in Exhibit C10 and it is also not disclosed in the exhibit that the Claimant was to be paid or paid one month salary in lieu of notice. I am also mindful of the fact that there is no any evidence from the Claimant on the amount of her monthly salary. There is also no evidence from the claimant on whether or not she was paid one month salary in lieu of notice or other terminal benefits. In any case, since the period of notice in Exhibit C10 was insufficient, the claimant is entitled to be paid one month salary in lieu. Since the parties have also been silent on the claimant’s other terminal benefits, if any, I think it accords with equity and good conscience to order that it be paid to her, if not already paid. In the final result, other than the discretionary order for the payment of one month’s salary in lieu notice and any other terminal benefit to the Claimant, if still outstanding, the Claimant’s claim for re-instatement or payment of general damages are bereft of merit and are consequently dismissed. For the avoidance of doubt, it is hereby ordered that the Defendants forthwith calculate and pay to the Claimant, all her terminal benefits in addition to one month’s salary on lieu of notice. Parties are to bear their costs. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Judge