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Representation: Godson C. Godspower holding the brief of C. O. Azubuike for the Claimant Dibugu Ogbonnaya (Mrs.) with Grant Osu Esq. for the Defendant JUDGMENT On the 29th day of November 2013, the claimant instituted this action by way of complaint seeking the following reliefs: 1. A Declaration that the termination of the Claimant’s appointment or the Claimant's compulsory retirement of employment on 4th May 1992 with the Defendant over and in respect of imputations of criminality and/or dereliction of duty having been subjected to harsh administrative one-sided trial wherein the claimant was found wanting, punished adequately later resurrected leading to the termination or compulsory retirement of the claimant or claimant's employment on the 29th of August 2013 hinged on a so-called Ministerial Disciplinary Committee wherein the Claimant was equally not given fair hearing and/or heard or given the opportunity to defend himself over the aforesaid criminal imputations amounts to double jeopardy, high-handedness, after thought, retrospectively vindictive, ultra vires, null and void the Public Service Rules (PSR). 2. An order compelling or ordering the Defendant to recall or reinstate the Claimant on account of the reliefs sought as herein specifically stated. The complaint was accompanied by a Statement of Claim and other processes served on the Defendant. The Defendant upon receipt of the Statement of Claim filed a Statement of Defence vide a motion for extension of time filed on the 11th day of July 2014. The Claimant in response to the Defendant's Statement of Defence filed a Reply to Statement of Defence filed on the 31st October 2014. Hearing commenced on 3rd December 2014 with the claimant testifying alone in proof of his claim and closed his case. At the close of the Claimant’s case, the Court ordered him to furnish the Court with his Statement of Account (Salary Account) from May 2013 to November 2013, same to be tendered from the bar. On 18/3/2015, the claimants' Counsel tendered Exhibit K from the bar, being the Claimant's salary statement of account with First Bank PLC from May 2013 to November, 2013. The defendant called two witnesses in its defence of this action and closed its case. The court ordered for the parties’ written addresses to be filed in accordance with the Rules of court. The defendant’s counsel filed his final written address on 30th September 2015 while the claimant’s counsel filed his address on 17th November 2015. These were regularized on 10th October 2015 and 17th November 2015 respectively. Parties adopted their respective written addresses on the 17th day of November 2015. According to the Defendant’s address, the Claimant’s case is that he was employed by the Federal Ministry of Health as a Gardener in May 1992 and seconded to the defendant who is an Administrative creation of the Federal Ministry of Health Abuja. In 2005, the claimant was promoted by the approval of the Honourable Ministry of Health from a Security Grand to Head Security Guard. The claimant in 2007, used his position to defraud one Mrs Juliet Nwokocha of the sum of N30, 000.00 (Thirty Thousand Naira) on the pretext that he was going to secure employment for Mrs. Nwokocha's sister, one Miss Eberechi Ikpegbu as a Laboratory Technician, with the Defendant. The Defendant did not know of the Claimant's fraudulent act until January 2012 when Mrs. Nwokocha wrote a petition to the Defendant. The Defendant considered the Claimant's fraudulent action as a “misconduct" and proceeded to issue the Claimant a query, which he answered. His answer to the query was found to be unsatisfactory and the case was referred to the Defendant's Adhoc Disciplinary Panel. Following the Panel's recommendation, the Claimant was suspended for three months without pay from 1/9/2012 to 30/11/2012. The Ministry of Health approved the Claimant's retirement from service in September 2013, the claimant was dully retired from the employment of the defendant. His three months salary was paid to him in lieu of retirement benefit. The defendant articulated three issues for determination in this suit, which are: 1. Whether the action or activity of the claimant, id est, his defrauding one Mrs. Juliet Nwokocha in 2007 of the sum of N30,000.00 (Thirty Thousand Naira) in the pretext that he would secure employment for Mrs. Nwokocha's sister with the defendant, was appropriately and lawfully considered to amount to a "misconduct" by the defendant? 2. If issue 1 above is answered in the affirmative, whether the Claimant whose misconduct has undermined the confidence which should exist between him and the defendant; and for which misconduct the defendant no longer requires his services, could be foisted on the Defendant by this Honourable court? 3. Whether the subsequent retirement of the Claimant from the employment of the Defendant by the Honourable Minister of Health after the Claimant's suspension from work for 3 (three) months by the Defendant could be said to amount to double jeopardy bearing in mind the pleadings of and the evidence adduced by the parties? On issue one, counsel submitted that in a master and servant contract of employment, such as the contract between the Claimant and the Defendant in this case, “misconduct” is what the employer considers to be misconduct. Consequently, if an employer considers the action of his employee or an allegation made against his employee to amount to a misconduct, the employer reserves the right to retire or dismiss the employee on that ground .See OYEDELE vs. IFE U.T.H (1990) NWLR (Pt. 155) 194. Also, that it is the employer's prerogative to dismiss an employer for good or bad reason or for no reason at all as long as the conditions precedent to such dismissal is met. It is the duty of the court to decide vide service agreement between the parties whether the conditions precedent have been met. Counsel contended that the Exhibits tendered by the Claimant do not support his admission During cross- examination that he (the Claimant) was given a slot by the defendant to employ a staff. Again, it is counsel’s opinion that the Claimant's fraudulent activities in defrauding mostly unsuspecting women of their money on the pretext of securing employment for them and/or their relatives with the Defendant as shown in Exhibits M, N and O, are activities outside the scope of the Claimant's duties and are also prejudicial to the defendant’s interest. The case of ANAJA vs. UBA PLC (2011) 15 NWLR (Pt. 1270) 377 @ 398 paras F-G, was referred to by counsel, in which it was held thus: “Misconduct is viewed seriously and punished harshly. In SHUAIBU vs. NAB (Supra) at 129, Wali J.S.C. stated that: “any act outside the scope of an employee's duties in his employer's establishment which is prejudicial to the latter's interest, is willful misconduct, considering the nature of the business and service in which his master is bound to provide to the customers.” Thus, the actions of the Claimant as evinced in Exhibits M, N, and O are serious misconducts for which summary dismissal of the Claimant would have been justifiable. But the Defendant rather chose to retire him and paid him three months salary in lieu of retirement. See Exhibit K. There is nothing before this Court to show that the Claimant's actions were within the scope of his duties as a gardener or security guard. Counsel therefore urged the court to resolve issue 1 in favour of the Defendant. With respect to issue two, counsel argued that it is trite law that an unwilling employer will not be compelled to keep an employee he no longer wants, and that a Court cannot foist on an employer an employee in whom he has lost confidence. See ONALAJA vs. A. P. LTD (1991) 7 NWLR (Pt.206) 691; and SAVANNAH BANK PLC v. FAKOKUM (2002) 1 NWLR (Pt.749) 544. It is counsel’s further submission that to have and maintain a harmonious working relationship between an employer and his employee, the employee has to jealously guard the confidence reposed on him by his employer, which flows from the duty he has to perform in the course of his employment. Thus, an action or conduct of an employee which undermines the confidence which should exist between an employee and employer, or an employee working against the deep interest of the employer, entitles the employer to summarily dismiss the employee and such dismissal amounts to the employer no longer wanting the services of the employee. See OLANIYAN vs. UNIVERSITY OF LAGOS (1985) 2 NWLR (Pt. 9) 599, SULE vs. NIGERIAN COTTON BOARD (1985) 2 NWLR (Pt 5) 17. In the instant case, it is the defendant’s evidence that the claimant was first employed as a gardener and later converted to a security guard and while he still maintained the confidence reposed on him by the defendant; he was promoted to the position of the Head of the Security Guard. See Exhibit A, J and L. It is the defendant’s averment that but for the fact that the defendant's confidence on the Claimant had eroded, his services would have still been needed by the defendant. See paragraph 6 of the Claimant's Statement of Claim and the defendant's elaborated answer in paragraph 6(a)-(F) of the statement of defence, which was not denied by the Claimant. Furthermore, counsel referred the Court to the case of UBA PLC vs. SOARES (2012) 11 NWLR (Pt. 1312) 550 E 578 paragraphs G-H where the court held thus: "It is a general principle of our civil jurisprudence, and quite trite that a Court will not impose an employee upon an unwilling employer. It is also true and I think commonsense dictates that an employer cannot also prevent an employee from resigning his employment for whatever reason. The position of the court in this kind of situation where an employer fires his employee is to determine whether due process was followed having regard to the terms of the contract of employment and that the employee is paid his entitlements in the circumstance." Counsel submitted that Exhibit G tendered and Exhibit R tendered by the defendant; show that due process was followed in retiring the Claimant from the employment of the defendant. Counsel urged the court to resolve issue 2 in favour of the defendant. Regarding issue three, counsel contended that from the pleadings filed and exchanged by the parties and evidence adduced in their support, the Claimant has not been able to prove to this court that he has suffered any double jeopardy as a result of his retirement from the employment of the defendant. See the cases of: 1. AGUSIOBO vs. OKAGBUE (2001) 15 NWLR (Pt. 737) 502; 2. SANYINNA vs. AFRICAN INT. BANK (2004) NWLR (Pt. 703) 502. He submitted that the Defendant’s Ad Hoc Panel to which the Claimant was invited to explain what transpired between him and Mrs. Juliet Nwokocha on the allegation of his defrauding Mrs. Nwokocha of N30,000.00 (Thirty Thousand Naira) is an Administrative Panel of Inquiry whose recommendations on the inquiry has to be accepted or rejected by the authority that set it up. It is not a judicial trial or a court of competent jurisdiction exercising judicial powers which are vested in the courts established for the Federation or for the states as envisaged by section 6 of the Constitution of the Federal Republic of Nigeria, 1999. See TAD & Sons IND LTD vs. Gov of Oyo State & Anor (2011) 6 NWLR (Pt. 1242) 1. More so, the fact that the Federal Ministry of Health is the final authority on staff matters is not in issue in this instant case. See paragraphs 9, 10, 11 and 15 of the Statement of Claim and paragraphs 8 and 9 of the Statement of Defence. The import of this state in pleadings is that facts pleaded by one party, which is admitted by the other party needs not to be proved by any of the parties. See section 123 of the Evidence Act, Cap E.14, 2011. Counsel referred to the case of AGBU vs. C. S. C. N. S. (2011) 1 NWLR (Pt. 1229) 544 at 556 paras O-R where the Court of Appeal held: “In every trial, pleadings and the evidence adduced determine the outcome of the trial; for parties are bound by the case they put up before the court. The main reason for the insistence of filing of pleadings in all cases is to ascertain with as much certainty as possible the issues in controversy between the parties and to create a situation where none of the parties is caught by surprise. ODOGWU vs. ODOGWU (1990) 4 NWLR (Pt. 143) 224. A court is bound to confine itself to the questions raised by the parties to the exclusion of other questions. OCHONMA vs. UNOSI (1965) NMLR 321; OVERSEAS CONSTRUCTION CO. LTD vs.CREEK ENTERPRISES (NIG) LTD (1985) 3 NWLR (Pt. 13) 409.” From the foregoing, counsel urged the Court to resolve issue 3 in favour of the defendant, hold that the Claimant has woefully failed to prove his claims and dismiss this suit. In the Claimant’s final written address, counsel’s introductory submission was that the Defendant with a Management Board (Board of Directors) appointed by the President of Nigeria is a juristic person. He supported this submission by stating that the Employment letter of the Claimant was signed by a Senior Staff of the Defendant solely, for the Chief Medical Director and not the Minister of Health. It is also counsel’s contention that the action of the Defendant over the sack or compulsory retirement of the claimant after been subjected to a humiliating internal trial and punishment only resurrected the same matter leading to this action. See Section 36(9) of the Constitution of the Federal Republic of Nigeria (As Amended). In fact, counsel by his contention equates the subsequent decision of the Defendant to compulsorily retire him after suspending him for three months to a breach of the constitution. He also referred to Section 36(10) of the 1999 constitution of Nigeria (As Amended) and argued that the claimant was not fairly treated as the defendant’s Disciplinary Committee did not accord the Claimant fair hearing during their sittings. The Defendants witnesses were called in absentia to testify against the Claimant with no opportunity for cross examination of the said witnesses. More so, the victims of the claimants did not appear at the Ad Hoc Tribunal or testify in Court to corroborate the Claims of the Defendant. At the conclusion of this introductory argument, counsel raised the following issues: 1. Whether a document tendered in evidence by a witness who cannot or is not in a position to answer questions on it is valid? 2. Whether an employee who protests termination yet collects salary has not waived his rights? On the first issue, counsel submitted that documents will be rightly expunged where the witnesses who tendered the documents were not the makers and cannot be cross-examined on the content of the documents. A court of law is entitled not to place probative value on evidence which does not pass the test of cross-examination. See the case of BUHARI vs INEC (2008) 19 NWLR (Pt. 1120) 246 at 415 paras A-B per Tobi JSC in respect thereof. Also, an employee who protests when his contract of employment is terminated, yet collects his or her salary in lieu cannot be said to have waived his right. See the case of NITEL vs. IKARO (1994) 1 NWLR (Pt. 320) Pg. 350 at Pg. 363 PARAS C-E . On the second issue, it is counsel’s opinion that a person cannot waive his salary, if he is not aware of certain conditions. Therefore, an employee who was not aware that his appointment was subsisting and that the compulsory retirement was invalid and who asked for payment of three month's salary in lieu of Notice cannot be said to have waived his salary. See ADENIYI vs. GOVERNING COUNCIL YABATECH (1995) 6 NWLR (PT 300) pages 426 at 462. Counsel then proceeded to arguments based on the issues raised by the Defendant. On the Defendant’s issues one and two, counsel submitted that the Defendant is a juristic person known to law. In addition to his previous arguments on this issue, counsel stated that the vacancies published in various dailies for Federal Medical Centre do not bear the name of Federal Ministry of Health. Also, the Defendant without recourse to the Federal Ministry of Health was solely interviewed and offered employment to the Claimant. Exhibit "A" was signed for the Medical Director of Federal Medical Centre, Umuahia. In all the documents written and duly signed by the Defendant's officers at the behest of the Defendant, the issue of Federal Ministry of Health, Abuja did not feature excepting as claimed to be its supervisory body. It is counsel’s contention that the Defendant ought to have shown to Court the list of its punitive measures for any suspected erring staff in order to justify the punishment meted out to the Claimant who remained a victim of extenuating and supervening circumstances. Also, counsel stated that the Defendant’s failure to exhibit the documents in respect of its dealings with the Claimant’s employment show its hidden agenda and creates doubts. This doubt so created must be resolved in favour of the Claimant. Exhibits B and C further confirm that the Defendant is a juristic person which can sue and be sued. Regarding the defendant’s issue three, counsel submitted that the Claimant is entitled his claims. Counsel stated that the Federal Ministry of Heath ought to have been contacted before the Ad hoc panel was set up. He submitted that the case of UNICAL vs. ESIAGA (1997) 4 NWLR (Pt. 582) 719 as cited by the Defendant has been overtaken by events. In the instant case, the Claimant was punished, suspended without salary and later recalled only after months compulsorily retired or sacked. These facts distinguish ESIAGA’s case from that of the Claimant. The DW1 stated that the Claimant was not given the opportunity of cross-examining him as one of the witnesses during the trial of the Claimant by members of the Ad Hoc Committee or Panel as Claimed. The Defendant through its Principal Officers constituted the so-called Ad Hoc Panel without any representative from the Federal Ministry of Health, Abuja. The court was urged by Counsel to resolve issue No 3 in favour of the claimant, grant the Reliefs sought and make consequential orders thereto, in favour of the claimant. In the Defendant’s reply on points of Law to the Claimant’s Final Written Address, Counsel argued that it is trite Law that admissibility is governed by relevance and that oral testimony is inadmissible to vary, add to or take away from the content of a document. See N.I.D.B vs. OLALOMI INDUSTRIES LTD (2002) 5 NWLR (Pt. 761) 532 Ratio 7. Counsel urged the Court to hold that the Exhibits which the Claimant’s Counsel sought to raise an objection to, is relevant to the case and therefore properly admitted in evidence as Exhibits. Again, it is counsel’s submission that an employee waives his right to protest his termination if he goes ahead to collect his terminal salary which signifies the end of the contract of employment. See Exhibit G, the letter of retirement. In conclusion, counsel urged the court to dismiss the suit of the Claimant on the grounds that it is frivolous and vexatious. Court’s decision In the course of evaluating the pleaded facts and evidence adduced by the parties in this matter, my attention was drawn to certain issues raised in the defendant’s defence which I think ought to be considered before delving into the claims of the claimant. One of such issues is the denial by the defendant that it is the employer of the claimant. The import of the facts pleaded by the defendant in paragraphs 3, 4, 8 and 11 of the statement of defence is that the defendant is not the employer of the claimant and in paragraph 12 (b), the defendant contended that it is not the proper party to be sued by the claimant because it is not the claimant’s employer. The claimant’s employer, according to the defendant, is the Federal Ministry of Health. The claimant did plead in paragraph 4 of the statement of the facts that he was employed by the defendant on 4th May 1992. His employment letter is in evidence as Exhibit A. The content of the 1st paragraph of the letter, which was signed by the Principal Hospital Secretary on behalf of the Medical Director and addressed to the claimant, read as follows- “OFFER OF APPPOINTMENT I am directed to inform you that as a result of your interview with the Federal Medical Center (QEH) Umuahia, on 30th April 1992, the Federal Medical Centre has decided to offer you appointment as GARDENER” The content of Exhibit A is clear as to who is the employer of the claimant. There is nothing in the content of Exhibit A suggesting that the Claimant was employed by any other body other than the Defendant. Even the Defendant could not show any other letter, other than Exhibit A, where the Federal Ministry of Health employed the claimant. I will not belabor this issue. The employer of the claimant, as I find, is the defendant. In paragraph 12 (a) of the Defendant’s Statement of Defence, the Defendant pleaded the fact that it is not a juristic person. DW2 also gave evidence of this fact in paragraph 14 (a) of his deposition and in paragraph 6 thereof, he stated that the defendant is only an administrative creation of the Federal Ministry of Health. In effect, it is the defendant’s contention that it cannot be sued in this suit. I am aware that this issue is prevalent in most of the suits to which Federal Medical Centre is a defending party. The FMC is always quick to extricate itself from actions instituted against it by contending that it is not a juristic personality. The issue of the competence of parties before a court is a jurisdictional matter and very fundamental and integral to the adjudicatory process of the court. No court of law can adjudicate in a matter without competent parties before it. In law, a person must have recognized ability to sue and be sued to qualify as a competent party in any proceeding either as a plaintiff or defendant before any court of law for it to exercise its jurisdiction. It is therefore necessary to determine whether the defendant is capable of being sued as a defendant to this matter. Generally, the law recognizes two categories of persons who can sue and be sued in the court. They are natural persons or artificial persons or institutions having juristic personality. A party who commences an action in court or who is sued to court must be a person known to law. ZAIN NIG. LTD vs. ILORIN (2013) All FWLR (Pt. 681) 1518 at 1550; N.F.C.A. V. LALOKO (2003) FWLR (Pt. 144) 482 at 495-496; GENEVA vs. AFRIBANK NIG. PLC (2013) All FWLR (Pt. 702) 1652 at 1678. The concept of legal personality of artificial bodies is that by virtue of their incorporation or establishment, they have acquired rights, and subject to obligations and duties, and are empowered at law to sue and be sued. The defendant has contended that it is not a juristic person capable of being sued and, although the Claimant, in paragraph 4 of his Reply denied the allegations in Paragraph 12 of the Statement of Defence, he offered no further fact or evidence at all to prove that the Defendant is a juristic person. The Claimant’s counsel too did not address this point in his final address. That is to say neither the Claimant nor his counsel has been able to point this court to any law or Statute or Act where the Defendant was established or created. The result is that the Defendant’s contention that it is not a juristic person has not been disproved. The Defendant’s DW2 has also explained in Paragraph 6 of his evidence that the Defendant is only an administrative creation of the Federal Ministry of Health. I am more in accord with this assertion in the absence of proof that the defendant is a juristic entity. It may appear from the foregoing facts that the Defendant is not a creation of statute but does that imply it cannot be sued? From the facts of this case, the Defendant has some functions, undertakes some duties and has taken action against the Claimant which resulted in the termination of the Claimant’s employment. In the exercise of the Defendant’s functions and duties, the rights of other persons will most certainly be affected, as is the complaint in this case. If in the exercise of its functions, the right of anyone is infringed can it be said that it cannot be sued simply because it was not created by statute? This question was answered in THOMAS vs. LOCAL GOVERNMENT SERVICE BOARD (1965) 1 All NLR 174 where the Supreme Court observed that with regards to unincorporated bodies which have power to do certain acts which can result in injury to others is that they must impliedly be taken to have power to sue and sued for those acts. See also KPEBIMOH vs. THE BOARD OF GOVERNORS, WESTERN IJAW TEACHERS TRAINING COLLEGE (1966) 1 NMLR 130. Thus, the law is that it is not only natural persons or corporation (aggregate or sole) that has the attribute to sue and be sued. There are bodies which are impliedly conferred with right to sue or be sued though unincorporated. They are not legal personae strictu sensu but have a right to sue or be sued by a particular name. The Federal Medical Centre is an establishment of the Federal Government and the name is nationally acknowledged. As a Federal institution with a Management Board, recognized functions, powers, duties, responsibilities and power of discipline over staff, it cannot be doubted that in the exercise of these functions and powers, rights of third parties would necessarily be affected and it will amount to injustice if such third parties cannot seek redress against the Federal Medical Centre for any wrong done to them. In KPEBIMOH vs. THE BOARD OF GOVERNORS, WESTERN IJAW TEACHERS TRAINING COLLEGE (supra) at 133, the instance where an unincorporated body can be sued was put, and quite rightly in my view, as follows: "Now, although a corporation and an individual or individuals may be the only entity known to the common law who can sue or be sued, it is competent to the Legislature to give to an association of individuals which is neither a corporation nor a partnership nor an individual a capacity for owning property and acting by agents, and such capacity in the absence of express enactment to the contrary involves the necessary correlative of liability to the extent of such property for the acts and defaults of such agents. It is beside the mark to say of such an association that it is unknown to the common law. Also, in CARLEN (NIG.) LIMITED vs. UNIVERSITY OF JOS [1994] 1 NWLR (Pt. 323) 631, it was held that a thing which can own property, which can employ servants, and which can inflict injury, must be taken to have impliedly been given the power to make it suable in a court of law for injuries purposely done by it. The fact that FMC can be sued, particularly in issues of contract of employment of its staff, was demonstrated in the Court of Appeal decisions in these cases: Federal Medical Centre, IDO-EKITI vs. OLAJIDE (2011) All FWLR (Pt. 593) 1944; Federal Medical Centre, IDO-EKITI vs. KOLAWOLE (2012) All FWLR (Pt. 653) 1999; Federal Medical Centre, IDO-EKITI vs. MICHAEL (2012) LPELR 20406 (CA). From all I have been saying above, and in view of the Court of Appeal cases cited above, I hold the view that the defendant can be sued for its acts. Having come to that conclusion, the defendant’s contention that it cannot be sued because it is not a juristic person holds no water. I will now consider the case of the Claimant. Having thoroughly examined this case, the simple issue which is to be determined in this judgment is whether the Claimant has proved his case as to entitle him to the reliefs sought in this suit? A careful analysis of the long and windy claim in relief 1 of the Complaint will reveal that the summary of it is the Claimant’s allegation that the termination of his employment or compulsory retirement from the Defendant’s employment on 29th August 2013 is unlawful, null and void. It is in consequence of the claim he sought from this court, as per his 2nd relief, an order to reinstate him to the employment. The Claimant as CW1 gave evidence in line with facts pleaded in his Statement of Facts. It is his evidence that he is an employee of the defendant having been so employed on 4th May 1992 vide Exhibit A. His employment was later on confirmed on 10th July 1996 vide Exhibits B. The claimant went further that upon a petition written by one Mrs. Nwokocha Juliet, the Defendant wrote him Exhibit C dated 2nd April 2012. He was also invited through Exhibit D to face the Defendant’s Adhoc Disciplinary panel. The claimant said the trial before the panel was kangaroo in nature, his reply and explanations were rejected. The claimant said he was suspended for 3 months without payment of his salary. The suspension letter is in evidence as Exhibit F. In the Claimant’s words, he stated thus: “In my helpless and frenzied situation, I was maligned, humiliated and irresponsibly caricatured”. The Claimant also testified that the Defendant terminated and/or compulsorily retired him via a letter dated the 29th August 2013, which is Exhibit G. According to the Claimant, his “administrative trial and judgment thereto by the Defendant lacked the modicum of transparency” and he was also “muzzled” by the Defendant during trial. His counsel wrote a letter, Exhibit H, to the Defendant demanding his reinstatement but the Defendant did not reply the letter till date. Exhibit I is the pre-action notice he served on the Defendant before instituting this action. The Claimant concluded that it is on account of these facts he claims the reliefs sought in this suit. In an action of this nature where an employee complains or alleges that the termination of his or her employment is wrongful or unlawful or null and void, the employee is under duty to plead and prove the terms of the contract of employment and in what manner the said terms of the contract were breached by the employer. It is not the duty of an employer, who is the Defendant to an action brought by an employee, to prove that the contract of employment was not breached. See PETROLEUM TRAINING INSTITUTE vs. MATTHEW (2012) All FWLR (Pt. 623) 1949 at 1967. The requirement for the burden of proof on the employee was expressed in these words by the Supreme Court in ZIIDEEH vs. RIVERS STATE CIVIL SERVICE COMMISSION (2007) All FWLR (Pt 354) 243 at 258:- “It has been firmly established that when an employee complains that his employment has been wrongfully terminated, he has the onus (a) to place before the court the terms of the contract of employment and (b) to prove in what manner the said terms were breached by the employer. The law is that it is not the duty of the employer as a defendant in an action brought by the employee to prove any of these facts” See also KATTO vs. C.B.N (1999) 6 NWLR (Pt. 607) 390 at 405; W.A.E.C vs. OSHIONEBO (2007) All FWLR (Pt. 370) 1501 at 1512. The point must be made here that whether the subject of the complaint is termination of employment or compulsory retirement as in this case or dismissal or suspension, the principle on the onus of proof placed on the employee is the same. Therefore, in this case that the Claimant has alleged and sought this court to declare that the termination of his employment or his compulsory retirement from employment is unlawful, null and void, the onus is on him to first place before the court the terms of his contract of employment and then prove in what manner the terms of contract of employment was breached in respect of the alleged compulsory retirement/termination of her employment. In other words, the Claimant is expected to relate his employment to a condition of service and then show to this court the way and manner his employment may be terminated under the condition of service and how the laid down procedure was not followed by the Defendant in the termination of his employment. The facts of the Claimant’s complaint in this suit about his compulsory retirement from the Defendant’s employment or termination of his employment is contained in paragraphs 6 to 11 of the Statement of Facts. For the purpose of emphasis, the facts pleaded in these paragraphs are reproduced hereunder: “6. The Claimant avers that upon petition written by one Mrs. Nwokocha Juliet accusing him of having collected the sum of Thirty Thousand Naira only based on instigation, incitement to disaffection, upon a symbiotic relationship anchored on gratification/promotion as firmly promised and or written by the Defendant and its management. A letter tagged Preliminary Letter of Misconduct—Re: Letter of Complaint against Mr. Isaac Nnah dated 2nd April 2012 is hereby pleaded 7. The Claimant avers that he was invited to Adhoc Disciplinary Panel proceedings via a letter dated 2nd of August 2012. The said letter is hereby pleaded. 8. The Claimant avers that the Defendant in the course of his trial which was Kangoro in nature rejected his reply and/or explanation, leading to a letter tagged Referral to Adhoc Disciplinary panel Re: Misconduct dated 25th April 2012. 9. The Claimant avers that the Defendant upon allegation received against him as incorporated in an administrative letter and suspension thereto was suspended for three months without payment of his salary. The Claimant in his helpless and frenzied situation, was maligned, humiliated and irresponsibly caricatured. 10. The Claimant avers that the Defendant terminated and/or compulsorily retired him via a letter dated the 29th August 2013. 11. The Claimant avers that his administrative trial and judgment thereto by the Defendant lacked the modicum of transparency, more so when he was muzzled by the Defendant during trial.” These facts were reproduced verbatim in the deposition of the Claimant as the evidence of the allegation of unlawful retirement from the employment of the defendant. The Claimant filed a Reply to the Defendant’s Statement of Defence on 31/10/2014 but there is no evidence to prove the facts pleaded in the reply. It is settled law that pleadings are not evidence and where no witness is called to substantiate pleaded facts, the 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. This court will therefore deem the Claimant’s Reply to the Statement of Defence as having been abandoned and it is consequently hereby struck out. The entire substance of the Claimant’s case against the Defendant is as he has stated in the paragraphs set out above. I have reviewed the facts of the Claimant case and the evidence adduced thereto but I find that he did not plead the condition of service. I cannot also find anywhere where he set out the terms of his employment nor how the terms have been breached by the Defendant. I have also examined the Claimant’s employment letter and I find that it did not relate the Claimant’s employment to any condition of service nor does it contain the conditions of service. From the Claimant’s pleading and evidence, he merely alleged that his employment was terminated or that he was compulsorily retired and that “his administrative trial by the Defendant lacked the modicum of transparency” and that “he was muzzled by the Defendant during trial”. Besides failing to tell this court how these allegations constitute a breach of the terms of the condition of service, the Claimant also failed to give particulars of the alleged lack of transparency in the administrative trial or how he was “muzzled” during the trial. The Claimant merely made blanket allegations without substantiating them. It is a clear principle of law that the burden in this case rests on the Claimant and neither the court nor the Defendant can help the Claimant to establish his case. The Claimant’s counsel attempted to window-dress the Claimant’s case in his final written address. The submission of the learned Counsel to the Claimants contains facts which were not pleaded nor given in evidence by the Claimant. It is the law that the address of counsel cannot take the place of pleading or evidence. See IBIKUNLE vs. LAWANI (2008) All FWLR (Pt. 398) 359. Therefore, Counsel’s attempt to develop the Claimant’s case in the final written address is of no use. The cumulative result of the failure by the Claimant to establish the basic requirements placed on him in this case is that the Claimant’s case is insubstantial and lacking in merit. Consequently, I find that the claimant has failed to prove his case. His claims fail and the suit is accordingly dismissed. No order as to cost. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Judge