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REPRESENTATION ANTHONY AKPAN Esq. for the claimant. OBONG I. J. BASSEY for the defendant. JUDGEMENT This action was commenced by the claimant against the defendants by way of Writ of Summons filed on 15th June, 2010 at the High Court of Akwa Ibom State. At the State High Court, the parties exchanged pleadings. The matter was however transferred to this Court by an Order of the State High Court of 13th June, 2012. The claimant by his pleadings is seeking the following reliefs;- 1. A declaration that the letter of the Honourable Commissioner of Education dated 12th June 2008 was a valid directive from the State Government on the subject matter, which must be complied with by the 2nd Defendants. 2. A declaration that the purported removal of the plaintiff from office as per letter dated 3rd June 2008 and the procedure adopted by the defendant were irregular, invalid, null and void and contrary to the statute establishing the defendant and against the principal of natural justice and fair hearing. 3. Immediate reinstatement of the plaintiff with all financial entitlements, promotion and allowances from 3rd June 2008 to date Or 4. The sum of N500, 000, 000.00 as damages for the wrongful removal from the office as a Deputy Director of Finance by the defendants. The Claimants case The Claimant was employed as the Deputy Director of Finance and diligently discharged his duties until sometime in July, 2006 when he was made to act as Acting Director by the Governing Council of the 1st defendant, however, he was not paid for so acting. On 3rd June, 2008, claimant was served with a letter signed by the 2nd defendant purporting to remove the claimant from office following the announcement by the Honorable Commissioner for Information in the media that Principal Officers of the Defendant institution be relieved of their appointment. Of which claimant and other affected officers immediately protested to the defendants to the effect that matter of Staff dismissal from employment are not treated based on radio announcement by virtue of the enabling law of the 1st defendant institution and that they were not affected by the radio announcement as they were not principal officers. When the 2nd defendant will not allow the claimant to resume and or continue with his work as the Deputy Director of Finance, the claimant and other affected officers complained to several quarters and persons in Government about the actions of the 2nd defendant. On 12th June, 2008, one of the persons in Government that the complain was made to; Dr. Ebebe Ukpong, the Commissioner for Education, a member of the Executive Council of Akwa Ibom State Government and the Government mouth piece in matters relating to education wrote to the 2nd defendant pointing out the error in the action of the 2nd defendant and also directed the 2nd defendant to stay action on the dismissal of the claimant as there was no formal government directive on the issue until further instruction. When the defendants still did not allow the claimant to continue in his employment as the Deputy Director of Finance despite appeals from well-meaning Akwa Ibomites, the claimant had no choice but to institute this action. The Defendants Case From the defendants further amended statement of defence dated 9th May, 2015 and filed on 11th May, 2015, 2nd defendant admitted that prior to the absence of the claimant from his duty, the claimant was the Deputy Director of Administration in the Akwa Ibom State University of Technology but was never employed as the Head of that directorate in the 1st defendant. To the Defendant the 2nd defendant is the Vice Chancellor but the 2nd defendant was the Acting Vice Chancellor of the Akwa Ibom State University of Technology as at the time of the claimant’s removal from office of acting Director. Furthermore, that the 2nd defendant cannot make administrative decisions on his own and cannot employ or fire the claimant as he was an acting vice Chancellor. The 1st defendant maintained that it had never had any implementation committee and that the claimant was employed by the Akwa Ibom State University of Technology and not the 1st defendant. Responding to paragraphs 12 and 13 of the Statement of Facts, defendants stated that they are not aware of any such letter of application nor did they authorize such and that the claimant was employed under the laws establishing the Akwa Ibom State University of Technology and not Akwa Ibom State Civil Service. The Defendants maintain that there was an announcement in the radio and pioneer newspaper that the principal officers of the Akwa Ibom State University of Technology (AKUTECH) except the 2nd defendant have been relieved of their appointment. And that upon knowledge of the announcement, a meeting was summoned with the principal staff of AKUTECH with the claimant in attendance. Arguing that no notice is needed to remove any holder of an office in acting capacity and that the removal even though was not done by the 1st defendant is proper as the claimant was removed from office as an acting Director in which capacity he served for 2 years. Trial commenced on the 12th February 2015 with the claimant testifying as CW and tendered the following exhibits. ;- LIST OF DOCUMENTS TO BE RELIED UPON AT TRIAL 1. Witness statement on oath C1 2. Akwa Ibom state University of Technology Law C2 3. Letter dated 3rd August 2005 C3 4. Letter dated 2nd September 2005 C4 5. Letter dated 30th July 2006 C5 6. Letter dated 3rd June 2008 C6 7. Letter dated 4th June 2008 C7 8. Letter dated 12th June 2008 C8 9. Letter dated 14th October 2008 C9 10. Letter dated 25th August 2008 C10 11. Letter dated 26th May 2009 C11 12. Letter dated 13th May 2009 C12 13. Letter dated 18th December 2009 C13 14. Letter dated 22nd June 2009 C14 15. Letter dated 2nd June 2009 C15 16. Letter dated 6th October 2009 C16 17. Letter dated 12th April 2010 C17 18. Letter dated 28th January 2010 C18 19. AKUTECH correspondence Register “Inward” product of GACON Prints & Stationery Company covering the period from Friday June 06, 2008 to Tuesday February 17th 2009 C19 During cross examination CW was presented and tendered Exhibit C22 and questioned on Exhibit C 22 which he described as a Marketing strategy to attract student and that not all the officers and buildings were actually on site as at the time the documents was in use. The defendant called one Raphael Ukeme, a Senior Assistant Registrar with the defendant, who adopted his written statement on oath of 11/5/2015 and tendered Akwa Ibom University of /technology Manual and testified as DW. He further testified that when he was employed the 1st defendant was known as the Akwa Ibom University of Technology (AISUT), Professor Sunday W. Peters was the Vice Chancellor, that they were asked to reply and they were re interviewed with Professor Peters continuing as Vice Chancellor, he further testified that the logo of the institution remained the same when the institution later became Akwa Ibom University (ASU). As regards Exhibit C22 DW stated that the publication was made for publicity and not all the structures contained therein where on ground, explaining that the university had both a temporary and a permanent site. At the close of trial parties were directed to file their final written addresses in line with the rules of this court. The defendants’ final written address was dated 22nd October, 2015 and filed on 23rd October, 2015. With three issues in the main namely ;- 1. Whether the claimant was employed by the 1st defendant. 2. Whether a party can enforce a contract where there is no privity of contract between the parties? 3. What is the effect of the repeal of the Akwa Ibom State University of Technology Law of 2003? And six issues in alternative. With regard to the 1st main issue ‘Whether the claimant was employed by the 1st defendant.’ Learned counsel to the Defendant Obong I Bassey Esq. submitted that by Sec. 136 (1) of the Evidence Act, he who alleges the existence of a fact must prove such fact. AMAECHI v. INEC & ORS. (2008) LPELR-446 (SC); ARGUNGU & ANOR. v. ARGUNGU & ANOR. (2008) LPELR-4275 (CA), arguing that the defendants having sought reliance from the Akwa Ibom State University, this Court is enjoined by sec. 122 (2) (b) of the Evidence Act to take judicial notice and the law need no further proof, urging the Court to hold that the claimant was not employed by the 1st defendant. With regard to the defendants second issue in the main ‘whether a party can enforce a contract where there is no privity of contract between the parties?’ Learned defence Counsel submitted that throughout the evidence of the CW1, he has not been able to place before the court how he became employed by the 1st defendant and that all his employment documents bare the name Akwa Ibom State University of Technology who invited him for interview, gave him a provisional employment, upgraded his status to Acting Director and finally removed him from the office of a principal officer. UNION BANK OF NIG.PLC v. EMMNAUEL SOARES (2012) LPELR-8018 (CA). And with regard to the defendants 3rd issue ‘What is the effect of the repeal of the Akwa Ibom State University of Technology Law of 2003?’ Learned Counsel for the defence submitted that the law under which the claimant was employed has been repealed and that by Sec. 35 of the Akwa Ibom State University Law, 2009, the Akwa Ibom State University of Technology Law was repealed, and that the effect of repeal is that there is an abrogation or abolition as if the law never existed. In the alternative and in the event that the Counsel assuming but without conceding that the court holds that the 1st defendant is the same as the Akwa Ibom State University of Technology the employer of the claimant, the defendants formulated the preceding 5 issues;- 4. Whether at the time of the receipt of the letter of 3rd June, 2008, the claimant was occupying the office of a principal officer? 5. Whether the employment of the claimant as deputy director of Finance has statutory flavour? 6. Whether a master has the right to terminate his servant’s employment 7. Whether the letter of 3rd June, 2008 terminated the employment of the claimant? 8. Whether the claimant has proved his case against the 2nd defendant. 9. Whether the claimant has proved his claim of wrongful termination to be entitled to the reliefs sought? With regard to Alternate issue 4, whether at the time of the receipt of the letter of 3rd June, 2008, the claimant was occupying the office of a principal officer? Defence Counsel argued that by Sec. 2 of the Akwa Ibom State University of Technology Law, 2003, the Chancellor, Pro Chancellor, Vice Chancellor, and the Deputy Vice Chancellor made up the principal officers of the school. And that by Sec. 84 of the Evidence Act, once a fact is to be proved by a document and the document is admitted for such proof, no oral evidence shall be taken to contradict it as the document speaks for itself. EGHAREVA v. OSAGHE (2009) 18 NWLR (PT. 1173) 299 S.C. Arguing further, that once a person holds himself out to be believed which holding and causes another person to act; he cannot be allowed to renege from that position. SEC. 169 EVIDENCE ACT, 2011; WILSON v. OSHIN (1994) 9 NWLR (PT. 366) 90 CA; A.G. RIVERS STATE v. A.G. AKWA IBOM STATE (2011) 8 NWLR (PT. 1248) 31 SC. Urging the Court to hold that having acted in that capacity and being so recognized by the Government of Akwa Ibom State, the claimant cannot be allowed to renege. With regard to alternative issue 5, ‘Whether the employment of the claimant as deputy director of Finance has statutory flavour?’ Learned Counsel for the Defendant submitted that an appointment is said to have a statutory flavour where there are statutory provisions regulating the appointment and the termination and also that an employer maybe a statutory body but the employee may not be a statutory employee. OPUO v. NNPC (2001) 14 NWLR (PT. 734) 552. Submitting that it is on the employee who sues for wrongful termination of employment to prove that his employment was a statutory one and that the mode of termination was wrongful in that it was not done in accordance with the provisions of the statute and that it is on the employee to prove his condition of service as stated by the statute. OBU v. NNPC (2003) 9 WRN 476 S.C. Contending further that it is the burden of the claimant to prove the term of his employment, not to leave it for the speculation of the court or the defendant. MOROHUNFOLA v. KWARATECH (1990) 4 NWLR (PT. 145) 306 S.C. Submitting that the claimant has failed to exhibit and plead the conditions of his service as is indicated on paragraph 3 of his letter of employment which would have helped this court to determine if his employment was wrongfully determined. AZENABOR v. BAYRO UNIVERSITY, KANO & ANOR. (2009) LPELR-8721 (CA). With regard to alternative issue 6, ‘Whether a master has the right to terminate his servant’s employment?’ Defence Counsel submitted that ordinarily a master has the right to terminate his servant’s employment for good or bad reasons or for no reason at all, and the basic issue that calls for resolution in a dispute between a master and servant is whether the contract of service is one with statutory flavour. With regard to the defendant’s alternative issue 7, ‘Whether the letter of 3rd June, 2008 terminated the employment of the claimant?’ Defence Counsel argued that it was the claimant who terminated his employment when he refused to work but went into petitioning, arguing that this the claimant admitted in paragraph 1 of his Reply to Statement of Defence. And that this statement must be acted upon as it is further proof of the fact that the defendant never stopped the claimant from performing the work of a deputy director of finance but that he was the one who abandoned his work. UNITY LIFE & FIRE INSURANCE COMPANY LTD. v. INTERNATIONAL BANK OF WEST AFRICA LTD. (2001) 1 LPELR-3412 (SC), per Igum, JSC (P. 28 PP. D.E.). With regard to alternative issue 8, “ Whether the claimant has proved his case against the 2nd defendant.” Learned Counsel to the defence urged the Court to dismiss this case against the 2nd defendant as claimant during cross-examination said he didn’t have anything against Prof. Peters outside that he was the Vice Chancellor at the time of the incidence. With regard to alternative issue 9 whether the claimant has proved his claim of wrongful termination to be entitled to the reliefs sought? Counsel to the Defendants submitted that on the authorities of OBU v. NNPC (supra); MOROHUNFOLA v. KWARATECH (supra), claimant has failed to plead or adduce evidence to show/establish the following fundamental elements of wrongful termination of employment: a. That he was employed by the 1st defendant. b. That his employment was statutory c. The condition of his employment d. How the alleged termination is contrary to the said condition of employment. Submitting further, that having failed to discharge the burden of proof as required by Sec. 131 (1); 132 & 133 91) of the Evidence Act, 2011, this case must fail and the reliefs must collapse. G & T INVEST LTD. v. WITT & BUSH LTD. (2011) 8 NWLR (PT. 1250) 500 SC; OYOVBIARE v. OMAMURHONU (2001) FWLR (PT. 1129) SC. He urged the Court to dismiss this case with the cost of #200,000.00. The CLAIMANT’S FINAL WRITTEN ADDRESS dated 30th October, 2015 and filed on 2nd November, 2015, formulated two issues;- 1. Whether the letter by the Hon. Commissioner for Education dated 12th June, 2008 was not a valid directive from the State government on the subject matter which the defendants ought to have complied with? 2. Whether the removal of the claimant in the circumstances of this case was proper. In regard to issue 1, ‘Whether the letter by the Hon. Commissioner for Education dated 12th June, 2008 was not a valid directive from the State government on the subject matter which the defendants ought to have complied with.’ Learned Counsel Anthony Akpan Esq. submitted that the defendants did not challenge and or controvert the claimant’s evidence; particularly with regards to Exhibit C19 where the defendants acknowledged the receipt of Exhibit C8; and that evidence not controverted is deemed admitted and the court must accept and act on same. BROWN v. STATE (2005) 31 WRN 135 @ 162. Contending that Exhibit C8 which was written after due consultation with the Secretary to State Government was a valid directive from the State Government on the issue of the claimant’s removal from office. To the claimants, the defendants must as of necessity comply with same. Arguing that they are entitled to a consequential order which necessarily flows as being incidental to the principal order. INAKOJU v. ADELEKE (2007) 4 NWLR (PT. 1025) 423 @ 495; U.C.C.N. v. DANGOTE IND. LTD. (2006) 6 NWLR (PT. 980) 616 @ 621-622. With regard to claimants issue 2, whether the removal of the claimant in the circumstances of this case was proper? Claimant’s Counsel submitted that the claimant can only be removed from office where the conditions set out in Sec. 20 (1) (a, b, & c [i & ii]) of part iii at pages A33 – A34 of Exhibit C2 have been complied with and that the defendants have failed woefully to prove before this Court that the said provisions have been complied with, as the use of the word “shall” in the provisions makes it mandatory. SIDI-ALI v. TAKWA (2004) 1 WRN 180 @ 198. On defendants’ argument that the claimant was not employed by the 1st defendant on the ground that Sec. 35 of the frontloaded bill repealed the law establishing Akwa Ibom State University of Technology, counsel contended that there is no provision in the frontloaded bill that makes its to apply retrospectively and even if there was one, it would have been null and void. CHIGBU v. TONIMAS (NIG.) LTD. (2006) 31 WRN 179 @ 195-196. Submitting that since it was Exhibit C2 that was in operation as at 3rd June, 2008 when the claimant was purportedly dismissed, it is Exhibit C2 that is applicable to this case LIPEDE v. SONEKAN (1995) 15 CNS 188. Counsel argued that the issue of application for employment by the Staff of Akwa Ibom State University of Technology to the 1st defendant on record is an issue of fact which must be pleaded and proved by credible evidence and same having not been pleaded and proved, the answer under cross examination goes to no issue. OJOH v. KAMALU (2006) 6 WRN 110 @ 142. Submitting that a party who wants the court to make any decision in his favour has the burden of proving such facts by credible and compelling evidence and where there is no evidence such allegation ISAH v. STATE (2006) 2 WRN 37 @ 75. and the court cannot act on speculation Urging the court to discountenance and dismiss the ipsi dixit of the defendants in their further amended statement of defence. LEVENTIS TECH. LTD. v. PETROJESSICA ENT. LTD. (1992) 2 NWLR (PT. 224) 459 @ 467. To the claimant, the defendant institution being a creature of the statute, its relationship with the claimant as such has statutory flavour and accordingly, the claimant cannot be dismissed except in compliance with the statute. CHUKWUMA HOPE NWAUBANI v. GOLDEN GUINEA BREWERIES PLC (1999) 6 NWLR (PT. 400) 184 @ 211; KPANGS v. LUTH (2003) 44 @ 39-40. Relying on the provisions of the Akwa Ibom State University of Technology Act, Exhibit C2, to argue that the claimant is therefore entitled to his claim. OBU v. NNPC (2003) 9 WRN 76 @ 104-105; JIRGHANGH v. U.B.N. (2002) 17 WRN @ 31. Contending that having shown that the claimant’s terms of employment is regulated and protected by statute, the claimant is therefore entitled to the claims. UDO v. C.R.S. NEWSPAPER CORPORATION (2001) 22 WRN 53 @ 91; SHITTA-BAY v. FEDERAL PUBLIC SERVICE COMMISSION (1981) 18 @ 40; OLANIYAN & ORS. Vs. UNIVERSITY OF LAGOS & ANOR. (1985) 2 NWLR (PT. 9) 599. Arguing that Exhibit C2 is not only devoid of any provision for provisional employment but is also devoid of length of time such provisional employment should last and to the claimant the Court cannot read into Exhibit C2 what is not stated there. O.A.U. v. ONABANJO (1991) 5 NWLR (PT. 193) 549 @ 569, 561. Claimant counsel submitted that it will be contrary to natural justice, equity and fair play to think that the claimant was in a provisional employment for a period of 3 years. NAAC v. ECONET WIRELESS LTD. (2006) 37 WRN 120 @ 158-159. In conclusion the claimant counsel submitted their claim in the ALTERNATIVE #500,000,000.00 (Five Hundred Million Naira) as damages. The Court’s Decision. I have heard all the arguments, submissions, contention raised in the course of this trial and have considered all the authorities cited both counsel, all of which have been duly incorporated in this decision and reference shall only be made thereto where necessary. The issue for determination to my mind is whether the claimant has proved his case to the satisfaction of this court so as to obtain the reliefs set out in the originating processes, for clarity the claimant seeks the following reliefs. 1. A declaration that the letter of the Honourable Commissioner of Education dated 12th June 2008 was a valid directive from the State Government on the subject matter, which must be complied with by the 2nd Defendants. 2. A declaration that the purported removal of the plaintiff from office as per letter dated 3rd June 2008 and the procedure adopted by the defendant were irregular, invalid, null and void and contrary to the statute establishing the defendant and against the principal of natural justice and fair hearing. 3. Immediate reinstatement of the plaintiff with all financial entitlements, promotion and allowances from 3rd June 2008 to date Or 4. The sum of N500, 000, 000.00 as damages for the wrongful removal from the office as a Deputy Director of Finance by the defendants. Relief 1: Is for a declaration that exhibit C8 reproduced below is a valid directive from the Akwa Ibom State Government which the 2nd defendant must comply with. AKWA IBOM STATE GOVERNMENT OF NIGERIA Moe/ad/s/264/1 Fax: 082-553573 Our Ref: Your Ref: (All replies to be addressed to the Hon Commissioner) Ministry of Education Block 10, First Floor Idongesit Nkanga Secretariat Uyo-Akwa Ibom State 12th June, 2008 The Acting Vice- Chancellor AKS University of Technology 29C Ubium Stree, Unit C Ewet Housing Estate Uyo APPOINTMENT OF PRINCIPAL OFFICERS My attention has been drawn to the advertisements in the Punch and Pioneer Newspaper of Friday, June 6, 2008 on the above subject matter. I am also in receipt of copies of letters served on same officers of the University, requiring them to handover their duties to the Secretary of the Acting Vice Chancellor, 2.After due consultation with the Secretary to the State Government, it has become necessary to inform you to observe the status quo ante on both issues as formal directives based on Akwa Ibom State Executive Council’s decisions on the matter are yet to be communicated to you 3. It is important to stress the necessity of clearing policy matters with the Hon. Commissioner for Education during this period of the absence of the Governing Council of the University before implementation. 4.With assurances of our highest regards. Dr. Ebebe A. Ukpong Hon. Commissioner The position of the law is as stated in L.S.B.P.C. v. PURIFICATION TECH. (NIG.) LTD. (2013) 7 NWLR (PT. 1352) 82 @ 87-88 Where it was held that;- “In any proceeding, the applicable law is the law in force at the time the cause of action arose and not the law at the time the jurisdiction of the court was invoked. In other words, the applicable law to a cause of action is the law prevailing at the time the cause of action arose notwithstanding that the law had been revoked at the time the action is being tried. In the instant case, the applicable law was Edict No. 17 of 1986 which was the existing law when the cause of action accrued”. MUSTAPHA V. GOV., LAGOS STATE (1987) 2 NWLR (PT. 58) 539; ALAO V. AKANO (1988) 1 NWLR (PT. 71) 431. Also the case of NWORA v. NWABUEZE (2013) 16 NWLR (PT. 1379) 1 S.C. Where the Supreme Court held that;- “ An action is governed by the substantive law applicable and in force at the time the cause of action arose. AGBAJO v. A.G., FED. (1986) 2 NWLR (PT. 23) 528; UWAIFO v. A.G. BENDEL STATE (1983) 4 NCLR 1. I find that the applicable law as at the time this cause of action arose is the Akwa Ibom State University of Technology 2003. By virtue of Section18 (1) of the Akwa Ibom University of Technology Law 2003 which provides thus;- (1) “The Governor shall be the Visitor to the University. (2) The Visitor shall as often as the circumstances may require not being less than once every 5 years- a. conduct a visitation to the University b. direct that the visitation of the University be conducted by such persons as the Visitor may deem fit, in respect if any of the affairs of the University. Sub section 3 goes on to give the responsibility of rendering assistance in furtherance of such a visitation to bodies and persons comprising the University and in 3(b) provide;- to give effect to any instruction consistent with the provisions of this Law which may be given by the Visitor in consequence of a visitation”. The court of Appeal was called upon to consider similar issue in the case of OLOWOKERE ANTHONY ABIODUN v. THE GOVERNING COUNCIL ADEYEMI COLLEGE OF EDUCATION ONDO (2012) LPELR-9308(CA) And in considering and interpreting Section 7 and 9 of the Federal Colleges Of Education Act, 2004 ( the former which is in pari matri with Section 18 of the Akwa Ibom University of Technology Law 2003 ) as to the power of the Minister of Education, the Visitor of College had this to say… “Section 7 of the Federal Colleges of Education Act, Cap. F8, Laws of the Federation of Nigeria, 2004 provides: "7. Visitation (1) The Minister of Education shall be the Visitor of each College (2) The visitor shall, not less than once in every five years, conduct a visitation of the college or appoint a visitation panel consisting of not less than five experts to conduct the visitation- (a) For the purpose of evaluating the academic and administrative performance of the College; or (b) For such other purpose or in respect of any other affairs of the college as the visitor may deem fit. " From the foregoing provision, it is clear that the Minister of Education as Visitor of the respondent has the power to constitute a visitation panel for the purposes specified which include the evaluation of the administrative performance of the College or " any other affairs of the College " as he (the Minister of Education- Visitor) may deem fit. The powers of the Visitor under section 7 of the Federal Colleges of Education Act appear to be quite wide. The purpose of a visitation panel appointed by the Visitor of a Federal Government College may include the evaluation of the financial affairs of the college, Furthermore, the Visitor has the power to give directions to the Council of a Federal College of Education, In this respect, section 9 of the Act provides thus: "9. Power of Minister to give directions to the Council Subject to the provisions of this Act, the Minister may give to the Council directions of a general character or relating generally to matter of policy with regards to the exercise by the Council of its functions under this Act and it shall be the duty of the Council to comply with such directions". The word "directions" used in section 9 of the Act appears to me to mean "directives" which are orders or official instructions which the Council of the College must comply with. I have carefully read and examined the provisions of section 9 of the Federal Colleges of Education Act and I am of the opinion the Minister of Education has the power to give directives of general character, for example, that members of the College indicted, by a visitation panel or an audit team, of weak performances or complicity in the mismanagement of College finances should have their appointments terminated; as was done in the instant case. This is more so when one bears in mind that by section 6(1) (i) of the Act one of the functions of the Council is to "recruit staff of the right calibre and determine the career structure of such staff". In the instant case, the directive of the Minister of Education was not targeted at the appellant alone but a directive of a general character that the persons indicted by the audit team and the visitation panel be relieved of their appointments; and the respondent was duty-bound to comply." Per ADUMEIN, J.C.A (Pp. 25-26, paras. A-G) The Akwa Ibom University of Technology Law 2003 does not contain any provision similar to the section 9 considered above giving the Visitor general powers to give directives on general matters in fact however a community reading of sub (2) a and b as well as (3) b, I find give the Visitor power to give instructions in respect of any if the affairs of the University. Now Exhibit C8 emanated from the Honourable Commissioner of Education, nothing within its content leads to the premise that this exhibit was made at the behest of the Visitor following a visitation as prescribed by law, the last paragraph indicates that in the absence of a Governing Board the Ministry of Education acts as its board, The defendant have challenged the fact that this exhibit was received by the 2nd defendant but from all intents and purpose the received stamp clearly visible on the face of this exhibit indicates that this letter was received in the office of the 2nd defendant on the 13th of October 2008. The presumption of regularity having not been debunked. Furthermore the position of the law is that “General or evasive denial does not amount to a denial. To constitute an effective and sufficient denial of an averment in the statement of claim or petition, the denial must be apt, precise, succinct, full and complete and not evasive, rigmarole, vague and bogus”. See EL-TIJANI V. SAIDU [1993] 1 NWLR (PT. 268) 246. Also, “ a mere denial of a detailed, factual situation without attacking the veracity or authenticity of details contained therein is in law not a denial”. See JACOBSON ENGINEERING LTD V. UBA LTD [1993] 3 NWLR (PT. 283) 586. “A traverse that the “1st defendant denies paragraph 22 of the statement of claim but shall at the trial require the plaintiff to strictly prove the averments contained therein” does not amount to a denial for the purpose of raising an issue for trial”. See LEWIS & PEAT (NRI) LTD V. AKHIMIEN [1976] 1 ALL NLR (PT. 1) 460, UBA LTD V. EDET [1993] 4 NWLR (PT. 287) 188, OHIARI V. AKABEZE [1992] 2 NWLR (PT. 221) 1 and LSDPC V. BANIRE [1992] 5 NWLR (PT. 243) 620. In the instant case, Exhibit C8 the letter of the Commissioner for Education was addressed to the 2nd defendant that formal directives were yet to be communicated to him in the circumstances. I find that the 2nd defendant would have been duty-bound to comply however throughout the enabling law reference was made to the Ministry of Science and Technology and not that of education which would mean the law makers presupposes that the law makers intend the Ministry of Science and Technology to act as the parent Ministry to the University, in which case the 2nd defendant is not duty bound to give credence to Exhibit C8.Relief 1 therefore fails. Reliefs 2 and 3 are for a declaration that the procedure adopted by the defendant in removing the claimant were irregular, invalid, null and void and contrary to the statute establishing the defendant and against the principal of natural justice and fair hearing and a consequential order for immediate reinstatement of the plaintiff with all financial entitlements, promotion and allowances from 3rd June 2008 to date. In order to determine these reliefs the court is required to ascertain the status of the claimant’s employment with the defendant. The defendants have argued, albeit in alternative, that the claimant’s employment is one of employer/employee formerly known as a Master/Servant relationship whereas the claimant maintains that his appointment is one with statutory flavour. It is a well established position of the law “that an employment is said to have statutory flavour if the employment is directly governed or regulated by statute or a section(s) of a statute delegates power to an authority or body to make regulations or conditions of service as the case may be”, UJAM V. IMT [2007] 2 NWLR (Pt. 1019) 470 at 492 B – C. Or where a set of prescribed “Rules govern the service” see Uwa JCA in FEDERAL MEDICAL CENTRE IDO EKITI & ANOR Vs. ISAAC OLUKAYIDE OLAJIDE [2011] LPELR 4150 CA para C In addition the claimant have testified that he was appointed into the provisional pensionable establishment of the Akwa Ibom University of Technology as Deputy Director of Finance on 2nd September 2005. These facts are admitted by the defendants. The claimant placed before the court Exhibit C5 produced below which states that the appointment was made pending the ratification and confirmation of the appropriate university committee in due course, the exhibit went on to describe his job schedule, his salary and stipulate that his other entitlements are as contained in the condition of Service applicable to the 1st defendant. AKWA IBOM STATE UNIVERSITY OF TECHNOLOGY UNIVERSITY TOWN, AKWA IBOM STATE, NIGERIA Our Ref: AKUTECH/ADM/3/011 Date: Sept 02, 2005 Mr. Mbobo Erasmus Mbobo 14 Aka Itiam Street Uyo Dear Mr. Mbobo, OFFER OF PROVISIONAL APPOINTMENT AS DEPUTY DIRECTOR OF FINANCE I wish to refer to your application dated August 3, 2005 and the subsequent interview held on August 10, 2005 at the VADOC Board Room, Ministry of Science and Technology, 34 Obio Imo Street, Uyo and inform you that the Vice chancellor of the Akwa Ibom State University of Technology (AKUTECH) has approved the offer of provisional appointment to you as the Deputy Director of Finance in AKUTECH. This appointment has been made pending ratification and confirmation by the appropriate Committee of the university in due course. As the Deputy Director of Finance, your scope of work includes keeping of the books, custody of funds, expenditure and investment policies of the University as well as prepare the annual budgets and facilitate external auditing of the University’s accounts, until the appointment of a substantive Director of Finance. Your post attracts an annual salary of N1,608,478.00 in the NTAKSS 14 Step 2 (i.e N1,544,353.00 – N2,075,613.00) inclusive of all allowances. Other entitlements are as stated in the Conditions of Service applicable in AKUTECH. The appointment takes effect from October 01, 2005 and will be subject to your being declared medically fit by any Government approved Hospital in Akwa Ibom State. It is to be noted that this offer lapses three (3) weeks from the date of this letter. Accordingly, you are requested to indicate your acceptance or otherwise before the expiration of that date. Congratulations. Yours faithfully, Deac. Edem Esara For: Vice Chancellor The Akwa Ibom University of Technology Law 2003 provides for the functions and responsibilities of bodies and offices and in section 10 provides the function of the Vice Chancellor as the Chief Executive of the University with general functions and shall direct the activities of the University. The act goes on to provide for the appointment, promotion of administrative staff and also contains provisions for discipline. I find that the post of the claimant is regulated by the Akwa Ibom University of Technology Law 2003. From the foregoing, I find that the claimant’s employment with the defendant is governed wholly by the Regulations deriving from statutory provisions and therefore by constitutional provisions. I hold that the claimant’s employment is one with statutory flavour. See SHITTA-BAY Vs. FEDERAL PUBLIC SERVICE COMMISSION [981] 1 SC 40, OLANIYAN Vs. UNIVERSITY OF LAGOS [1985] 2 NWLR (Pt. 9) 599, IDERIMA Vs. RIVERS STATE CIVIL SERVICE COMMISSION [2005] 16 NWLR (Pt. 951) 378. I resolve this point in favour of the claimant. By virtue of Section 318 of the 1999 Constitution the claimant is a Public Servant, a member of the Public Service of the Federation. Another point raise was the effect of the provisional appointment. The claimant’s letter of appointment stipulated his appointment required ratification and confirmation in due course, “due course” was nowhere defined in the enabling Law. I am aware that in the termination of the appointment of an officer on probation, no procedure need be followed provided there is satisfaction that there is a good cause for termination IGWILO VS. CENTRAL BANK OF NIGERIA (2007) 14 NWLR (PT. 1054) 393. In addition to the fact that no good cause has been presented to this court for the removal of the claimant, this court has however held in the case of NICN/IL/01/2013 DANJUMA EMMANUEL ESUGA & 2 ORS. VS. REGISTERED TRUSTEES OF DANGOTE FOUNDATION (unreported) delivered 29th September 2014. that Where an employee on probation has spent the required probationary period without termination or confirmation, the issue of confirmation of the employee is implied following IWUJI V FEDERAL COMMISSIONER FOR ETABLISHEMENT [1985- LOCUS CLASSICUS] LPELR 1568 SC. Raising the issue of estoppel by conduct THE COUNCIL OF FEDERAL POLYTECHNIC, EDE & ORS. V. OLOWOOKERE [2012- COURT OF APPEAL] LPELR 7935 CA PP 22-23 PARA B-B. Where the enabling law makes no definition for the period of time requiring the courts to rely on the test of reasonableness to so determine, in the instant case I find a two year period adequately reasonable for an employer to observe an employee for a post. In the circumstances the claimant who worked from September 2005 until his purported removal in June 2008 had served from two (2) years nine (9) months and I hold the defendants are precluded from treating his appointment as probationary or provisional. Having found that the claimant appointment is one with statutory flavour all the arguments, submissions and authorities put forward by the defendants in respect of a master/ servant relationship I find to have of no bearing or consequence on the case of the claimant and I shall not therefore waste time addressing the submission as that whole line of argument has resultantly failed. At this stage the next thing to do is to look at the next point whether the actions of the defendant were within the law and in line with the laid down regulatory provisions;- was the removal of the claimant proper. Section 20 of the Akwa Ibom University of Technology Law 2003 provides for the removal and discipline of academic and Technical staff. 20(1) if it appears to the Council that there are reasons for believing that any person employed as a member of the academic, administrative or technical staff of the University should be removed from his office or employment on the ground of misconduct or inability to perform the function of his office or employment the Council shall- (a) give notice of the reasons to the persons in question (b) afford him the opportunity of making representation in person on the matter to Council (c) if he or any three members of the Council so request within a period of one month beginning with the date of the notice make arrangements- (i) for the Disciplinary Committee to investigate the matter and report on it to the Council; and (ii) for the person in question to be afforded the opportunity of appearing before or being heard by the Disciplinary Committee with respect to the matter and if the council after considering the report of the committee is satisfied that the person in question shall be removed as aforesaid the Council may so remove the person by instrument in writing signed on the direction of the Council. Sub section goes on to provide for suspension by the Vice Chancellor. By these provision the only situation where an employee can be removed is for mis-conduct or being unable to perform his function, in addition the law applies from removal from office as well as for removal from employment, this is worthy of note as the defendants sought to argue that the claimant was only removed from his acting director office and not his substantive post of Deputy Director. Section 20, I find, clearly makes that distinction untenable. The claimant’ s case is that on 3rd June, 2008, claimant was served with a letter signed by the 2nd defendant Exhibit C4 reproduced below, purporting to remove the claimant from office following the announcement by the Honorable Commissioner for Information in the media. AKWA IBOM STATE UNIVERSITY OF TECHNOLOGY UNIVERSITY TOWN, AKWA IBOM STATE, NIGERIA Our Ref: AKUTECH/VC/114/01 Date: 3rd June, 2008 Mr. Mbobo Erasmus Mbobo Acting Director of Finance Akwa Ibom State University of Technology Plot 29, Unit C, Ewet Housing Estate Uyo Dear Mr. Mbobo, Removal from office of principal officers Following the announcement by the Hon. Commissioner of information on May 8th and 10th 2008 that “the Principal Officers of the University, except the Acting Vice- Chancellor, have been relieved of their appointments”., and following my directives at the meeting with all of you immediately after this announcement please be informed that you are to hand over all University property in your possession, including cars to Eng. Ime Asuquo of the Works department, also submit your Handing-over Notes of the Acting Vice-Chancellor’s Secretary, before the close of business today; and vacate your offices by the end of the official hours today. You should await further directive from the State Government. Yours faithfully, Prof. S. W. Peters FAS Acting Vice-Chancellor Cc: Executive Governor Secretary to State Governor Hon. Commissioner for Education A careful perusal of Exhibit C4 reveals that this exhibit evolved completely out of context from the provisions of Section 20 of the Akwa Ibom University of Technology Law 2003;- the statute governing the claimants appointment. There is nothing before the court to indicate that the claimant was ever given notice of any misconduct or observance of his inability to perform his function, nor was he afforded any opportunity of making representation to Council neither was he served any instrument in writing signed on the direction of the Council (or the relevant Commissioner in the absence of a Council) informing him of his removal. The import of an employment processing statutory flavour means such an employment is protected by statute such an employment is said to have statutory flavour and the terms and conditions of the service including how the employment can be determined can only be found in the statute which contains and spells out the procedure for his employment and discipline. See the case of FEDERAL MEDICAL CENTRE IDO EKITI & ORS V. KOLAWOLE [2012] All FWLR (Pt. 653) 1999 at page 2011, it was held that –An employment with statutory flavour is one where the procedure for employment and discipline are governed by statute. The condition of service would determine whether the termination of employee’s employment was done following due process As an employment with statutory flavour or one that has statutory backing as in the claimant’s case must be terminated or removed in the way and manner prescribed by the relevant statute and any other manner of termination or removal inconsistent with what is contained in the statute is null and void and of no effect, See BASHIR ALADE SHITTA-BEY V. FEDERAL PUBLIC SERVICE COMMISSION [1981] 1 SC 26 AT 35 – 36 PER IDIGBE, JSC AND IDERIMAA V. RIVER STATE CIVIL SERVICE COMMISSION [2005] ALL FWLR (PT. 285) 431 AT 456 – 457 per Oguntade, JSC. That the implication of these judicial pronouncements is that the moment it is established that the appointment of an employee is governed by instruments or condition of service that are made by a statute like the Akwa Ibom University of Technology Law 2003 as with the present claimant, such an employee cannot just be removed at the pleasure of the employer as such an employee can only be removed or have his appointment terminated in strict compliance with the conditions governing such service. See EPEROKUN V. UNILAG [1986] 4 NWLR (PT. 34) 162, OLANIYAN V. UNILAG (NO.2) [1985] 2 NWLR (PT. 9) 550, ADEDEJI V. PUBLIC SERVICE COMM. [1967] ALL NLR 72. Thus the termination of the claimant’s employment by the 2nd defendant vide its letter of 8th June, 2008 was improper as same is not in compliance with the statute regulating the claimant’s conditions of service with the 1st defendant. The law is that in an employment with statutory flavour strict compliance and adherence with the procedure for the termination as laid down in the statute or regulation made there under must be followed and the breach of one step in the procedure is a breach of all that would warrant granting the relief sought by the employee, citing UNIVERSITY OF ILORIN V. PROF ABE [2003] FWLR (PT. 164) 267 AT 283, IDERIMA V. RIVERS STATE CIVIL SERVICE COMM. [2005] ALL FWLR (PT. 285) 431 and OKOCHA V. CIVIL SERVICE COMMISSION OF EDO STATE [2004] FWLR (PT. 190) 1304. What all this means is that the employment of the claimant can only be brought to an end for proven misconduct or inability to perform his official function. The no reason was adduced by the defendants for removing the claimant, case of the defendant that the claimant was removed as acting Director and not as Deputy Director Finance and that the claimant refused to work is untenable for not only the wordings of Section 20 of the enabling law but in addition if the claimant had refused to work and stopped coming to work the defendant ought to have presented evidence of this , queries issued or notice of absconding this was not done, DW in open court related an unpleaded incident that he was employed before the repeal of the Akwa Ibom University of Technology Law and was made to re-apply and was re-interviewed, not being a pleaded fact this goes to no issue however for the sake of considering all issues the defendant could have presented documentation in support of this fact as well as notices to the claimant to regularize his own appointment, I do not believe the defendant that the claimant absconded the issue of absenteeism in public service is a very serious matter it is not one that would be ignored or treated whilly nilly. In addition I do not believe the evidence of DW that the staff of the University of Akwa Ibom of Technology underwent fresh applications and interviews in the manner described, in fact the position of this court that if anything was done at all it was a mere formality which could not be proved for lack of evidence. The case of OKOCHA V. CSC, EDO STATE [2004] 3 NWLR (PT. 861) 582 is explicit when it states that public servants are invested with a legal status and they cannot be properly or legally removed until the said Rules are strictly complied with. See also this Court’s decisions in FRANCIS OLUYEMI OLAMIJU, ESQ. V. LOCAL GOVERNMENT SERVICE COMMISSION, EKITI STATE & ANOR UNREPORTED SUIT NO. NICN/LA/157/2011 the judgment of which was delivered on November 26, 2012 AND MR. A. A. OWOLABI V. LOCAL GOVERNMENT SERVICE COMMISSION, EKITI STATE & ANOR UNREPORTED SUIT NO. NICN/LA/160/2011 the judgment of which was delivered on November 26, 2012. Having declared the removal wrong, unlawful, null and void, the law is that it is deemed not to have occurred in the first place. See E. P. IDERIMA V. RIVERS STATE CIVIL SERVICE COMMISSION (SUPRA). The law is that once the dismissal of a public servant is declared null and void, the effect of such a pronouncement is that the public servant was always and still is a public servant. The argument and authorities cited by the defendants that an employer can hire and fire at will, for reason or no reason at all, are inapplicable to the instant case. Those authorities are relevant only to master/servant cases devoid of a statutory flavor. The instant case is one with a statutory flavor and so the claimant can only be removed in accordance with the Law. This the defendants did not do. The appropriate remedy, therefore, is that the claimant must be reinstated with full benefits and without any loss of salary, position or seniority. On the whole, the claimant’s case is meritorious and so succeeds. The claimant is entitled to the reliefs sought but only in the following regard – 1. it is hereby declared that the removal of the claimant by the 2nd defendant vide the defendants letter dated 3rd June 2008 and the procedure adopted by the defendant is wrong, illegal irregular, invalid, null and void and of no effect. 2. By order of this court the claimant is hereby reinstated immediately with full benefits and without any loss of salary, position or seniority. 3. It is hereby ordered that the claimant’s salary from June 2008 when he was wrongfully removed by the defendants be paid to him with financial entitlements, promotion and allowances from 3rd June 2008 to date. 4. Cost is put at One Hundred Thousand Naira (N100,000.00) only payable by the defendants to the claimant. This is the court’s Judgment. Judgement is entered accordingly. ………………………………………….. Hon. Justice E. N. Agbakoba Presiding Judge Calabar Division