REPRESENTATION EDEM ADAM for the claimant COMFORT H. MORRISON for the defendant JUDGEMENT This action was commenced by the claimant against the defendants by way of Writ of Summons filed on 12th December, 2007 at the High Court of Akwa Ibom State. At the State High Court, the parties exchanged pleadings. The matter was however forwarded to this Court on 17th January, 2014. Claimant subsequently filed a Complaint on 24th March, 2014 along with the accompanying frontloaded documents against the defendants jointly and severally for the following reliefs: 1. A declaration that the claimant’s employment in the service of Akwa Ibom State Civil Service is valid and subsisting. 2. A declaration that the stoppage of pay-roll action, withholding of the salaries and other entitlements of the claimant by the defendants is illegal, null and void. 3. A declaration that the claimant is entitled to all his salaries privileges benefits and other entitlements that may have accrued to his office and position with the defendants till he is validly retired from the service of Akwa Ibom State. 4. An order of this Honorable Court directing the defendants to collate, release and pay over all such salaries and other emoluments as may have been due to the claimant from February, 2003, till the claimant is retired from the service of Akwa Ibom State Civil Service in accordance with the law and procedure. 5. Cost of this action assessed at #100,000.00 in favour of the claimant. The case of the claimant on the record is that his salaries and other emoluments due to him had been withheld by the defendants since February, 2003, when he was purported to have embezzled the sum of #1,070,575.00 (One Million and Seventy Thousand, Five Hundred and Seventy-Five Hundred Naira). The defendants filed their STATEMENT OF DEFENCE dated 7th July, 2015 and filed on 8th July, 2015. The defendants pleaded that the claimant was employed by the Cross River State Government as Chamber Attendant in the House of Assembly Affairs Department on 15th January, 1980 after which he was posted to Health Service Management Board as a Clerical Assistant, Calabar, Cross River State. The defendants pleaded that the claimant was a Clerical Officer by Rank and was only deployed to the Accounting Unit of the 1st defendant to serve or assist the Cashier on the 1st defendant as a Treasury Clerk. And that the claimant worked under the supervision of the then Cashier who is now working in the office of the Head of Service and not in the Governor’s Office. The defendant pleaded that the claimant who was not an Accounting Staff lacked the capacity to collect Government cheques since his specimen signature was not in the Sub-Treasury and he had never presented any cheque to the Cashier or any other person whatsoever. The defendants also pleaded that the rice money kept by the claimant in the strong room at the Sub Treasury, Uyo had nothing to do with the unclaimed salaries which the then Cashier kept in his office which money he tidied up and gave to the claimant to lodge into Afribank which the claimant accordingly lodged. The defendants maintain that the claimant was responsible for the deductions of rice money from the salaries of staff in the Hospitals, and that he was the only one recognized and authorized by the Sub treasurer staff to sign and to collect the bag containing the rice money. The defendant continue that one Mr. Maurice Edet an office manager was responsible for the distribution of rice to staff. It was this Mr. Edet that refused to collect the rice money bag containing N750, 000.00 because it should have contained N1 440.675.00. It is the defendants case that when the bag was finally collected from the claimant it only contained N370, 000.00 and the claimant was unable to explain the shortage. The defendants state that the claimant had initially owed up to having tampered with the rice money, offering to sell a piece of land and that the claimant took the 1st defendants cashier, Mr. Edet , his own elder brother and some other named persons to a piece of land that the claimant claimed was his and intimated them that he was looking for buyers to purchase the land to enable him refund the rice money to the 1st defendant, only for the claimants wife to reveal that the land in being reviewed did not belong to the claimant. The Defendants maintained that the claimant and the 1st defendants cashier were called to appear with Mr. Edet who gave independent testimony of the rice distribution and money collection procedure, and that the claimant heard all the testimonies and had opportunity to confront the cashier but did not because the claimant had nothing to confront the cahier’s truthful testimony with. After the panel appearance the claimant absconded and was nowhere to be found his salaries were stopped then his appointment determined by a letter of dismissal. The defendant concluded that the claimant had the instituted this action in bad faith urging the Court to dismiss this suit with substantial cost. COUNTER-CLAIM Wherefore the defendants Counter-Claim against the claimant as follows: 1. The sum of #1,070,575.00 (One Million Seventy Thousand Five Hundred and Seventy Five Naira) only being rice money owed the defendant by the claimant. 2. Damages assessed at #200,000.00. At the trial the claimant testified as CW, adopted his written statements on oath of 27 April 2004 and 10 June 2014 which were marked exhibits C1 and C2 respectively and proceeded to tender eleven (11) other exhibits. Claimants exhibits:- S/N TENDER BY NICN/CA/07/2014 DOCUMENT’S DATED DATE TENDER MARK 1. Claimant Counsel Witness on oath 8/12/2014 CW 2. Written statement on oath 2 C1 3. C2 4. Offer of appointment to pensionable 18/01/1980 8/12/2014 C3 5. Letter of appointment 18/01/1980 “ C31 6. Confirmation of appointment 19/08/83 “ C4 7. Notification of promotion 5/11/002 “ C5 8. Staff identify card 8/12/2014 C6 9. Invitation to end of year get. 14/12/2000 “ C7 10. Claimant counsel Afribank Uyo teller 21/6/002 “ C8-C84 11. Query on non remittance of rice money 15/12/004 “ C9 12. Reply to query on non remittance 17/12/004 “ C10 13. Demand for salary & others entitle 16/7/007 “ C11-C111 14. Witness deposition on oath of 1st deft. 9/6/2014 “ C12-C127 15 Petition against gross victimization 25/9/005 “ C13-C131 Mfonoboy O.Etim counsel for claimant 8/12/2014 Sign During cross examination the claimant testified that he was a diligent working worker who was even given an award in 2000 for his effort towards revamping the Health Ministry, that he received some queries prior to the award which he did not bring to court because they occurred in cross river state and he felt were no relevant to his case. He further testified that he was ill during the period when he’s salary was stopped and that his table, chair and schedule were given to another in the office making it difficult for him to come to work, together with his machine that had been seized, and that when he comes to work he has to perch around. To the claimant his illness was as a result of non-payment of salary and the uncomfortable working condition he found himself. CW further testified under cross examination that he was aware that the Junior Staff Disciplinary Committee investigated his chronic absenteeism but that he was not aware that he was found guilty by that panel as he never received the report of their findings contrary to their promise. The claimant as CW, also testified that the last time he signed the attendance or movement register was 2005. The defendants called one witness also one Mrs. Margret Uwem James who testified that she is a public servant working with the Akwa Ibom Service presently in the Ministry of Justice but was with the 1st defendant as at the time she made her witness statement on oath. She adopted the said witness statement on oath dated 26 May 2004, which was marked exhibit D1 and proceeded to tender seventeen (17) other exhibits. Defendants Exhibits:- 1. Defendant counsel Witness on oath 17/3/2015 17/3/2015 DW 2. Written statement on oath 26/5/2014 “ D1 3. Absence from duty 16/5/1984 “ D2 4. Re: absence from duty 26/6/1995 D3 5. Query, absence from duty 7/3/1997 5/5/20015 D4 6. Absence without permission 23/6/1997 “ D5 7. Reinstatement & deployment 26/6/1998 “ D6 8. Clearance release of junior staff 5/5/1998 “ C7-C71 9. Staff welfare co-operation society “ D8-1 10. Query letter 29/1/2004 “ D9-1 11. Reply to query 30/1/2004 “ D10 12. Junior staff management committee HMB-1/2004 D11 13. Letter from perm. Sect 5/52015 D12 14. Minutes of meeting of junior staff 11/1/2005 “ D13-11 15. Query on non-remittance of rice 15/12/2004 “ D14 15. Extract of meeting 1/7/2004 “ D15-3 16. Re-petition against gross victimization 14/11/2003 “ D16-1 17. Dismissal from service 16/11/2005 D17- 18. AKS Civil service rules (2005) 2005 D18 During cross examination the defendant testified that she had worked with the 1 defendant in 2002 that she knew the claimant who worked in the cash office while she worked in the personnel department, she admitted that she was not one of the signatories to Exhibit D15 but that some of the decisions taken by the panel where implemented but not number 4 and 5 because the claimant was not in the office, that her testimony was based on the records; what is in the claimants file, she further testified that the claimant was found guilty by the investigating panel of embezzling the rice money but that he was not charged to court because he had offered to sell his land and refund the money, however no one saw the claimant again after that. She further testified that the claimant was issued a letter of dismissal and a copy served on his wife by one Mr. Umeh who has since retired. At the end of trial on the 9 July 2015, parties were directed to file their final written address and after two consecutive adjournments (14 October 2015, 4 November 2015) the parties adopted their final written addresses and the case was reserved for judgement. The DEFENDANTS’ FINAL WRITTEN ADDRESS dated 6th October, 2015 was filed on 9th October, 2015. With the following ISSUES; 1. Whether the claimant’s employment in the service of Akwa Ibom State Civil Service is still valid and subsisting. 2. Whether the claimant was accorded fair hearing by the defendants before his dismissal from the Civil Service of Akwa Ibom State. 3. Whether the claimant is entitled to all the reliefs sought in view of the facts and evidence before this Court. ON ISSUE 1 Whether the claimant’s employment in the service of Akwa Ibom State Civil Service is still valid and subsisting. Learned Counsel to the Defendant Comfort Morrison, submitted that abandonment of public office is specie of resignation, though it differs from resignation in that resignation is a formal relinquishment through non user, must be total and whether an officer has abandoned an office depends on his overt acts rather than his declared intentions. Thus, that the claimant’s continuous absence from work without leave or permission for a period of over one year constitutes or corroborates the overt acts herein mentioned. AGIENOJI v. C.O.P., EDO STATE (2007) 4 NWLR (PT. 1023) 23 @ 43. ON ISSUE 2 Whether the claimant was accorded fair hearing by the defendants before his dismissal from the Civil Service of Akwa Ibom State. Learned counsel to the defendants also submitted that fair hearing being one of the cardinal principles of natural justice, it follows that in any case of misconduct, all that is required of an employer before summarily dismissing an employee is to afford him fair hearing by confronting him with the allegations against him. Therefore, that in the Civil Service of Akwa Ibom State, issuance of query (ies), representation on such query, verbal or written warning and causing an officer to appear before a panel of inquiry or a certain committee depending on the rank of the officer involved, as in Junior Staff Management Committee of the 1st defendant, are ways of according fair hearing to officers involved in any misconduct. MUSA v. FED. MIN. TOURISM, CULTURE & NAT. ORIENTATION (2013) 10 NWLR (PT. 1363) 583. She submitted that an employer has the right to discipline its employee and can also terminate or dismiss its employee once the terms or rules guiding such contract of appointment is duly followed or complied with, as in the instant case. OBAJE v. N.AM.A. (2013) 11 NWLR (PT. 1365) 305. ON ISSUE 3 Whether the claimant is entitled to all the reliefs sought in view of the facts and evidence before this Court. Counsel to the defendants contended that the claimant is not entitled to any of the reliefs sought and cannot be paid salaries or any emolument when he never worked for it and that the defendants had in their evidence before the Court stated that the claimant had exhibited a chronic habit of absenting himself from duty severally without leave which the claimant was queried severally. Furthermore, that the claimant did not reply the queries of 1984 and 1987 in which he absented himself from duties without leave or permission. The CLAIMANT’S REPLY TO DEFENDANTS’ FINAL WRITTEN ADDRESS was dated 24th November, 2015 and filed on 27th November, 2015. Wherein the claimant formulated the following ISSUES;- 1. Whether the claimant has proved his case against the defendants. 2. Whether the claimant is entitled to the reliefs sought. ON ISSUE 1 Whether the claimant has proved his case against the defendants. Learned Counsel to the claimant Ime Akpan Esq. submitted that the claimant has proved his case against the defendants when he led evidence and tendered 13 exhibits marked C1 – C13 and that it must be noted that exhibits D2, D3, D4, D5, D6,D7, D8, D9, D10, D11 and D12 – D16 are all public documents, which require certification. Furthermore, that exhibit D11 is not signed by any person, urging the Court to expunge same as it is trite that an unsigned document is a worthless piece of paper, which its authenticity is questionable or doubtful. He argued that exhibits D2 –D16 tendered by the witness to the defendants amounts to hearsay as she was not the maker. ABDUZMALIK v. TIJANI (2012) 12 NWLR (PT. 477 @ 464 RATIO 3. On the probative value of a document tendered in evidence by a person other than the maker of the document, counsel cited the case of ADEWALE v. OLAIFA (2012) 17 NWLR (PT. 1330) 478 @ 486 RATIO 9. Learned Claimant’s Counsel submitted that once an amendment of a court’s process has been ordered, the effect is that what stood before the amendment is no longer material before the court and no longer defines the issues in contention. AGBABIAKA v. SHAIBU (1998) 10 NWLR (PT. 571) 534 @ 548, PARAS. E-F RATIO 3; ROTIMI v. MCGREGOR (1974) 11 SC 133 @ 152, POPOOLA v. BABATUNDE (2012) 7 NWLR (PT. 1299) 302 @ 309 RATIO 4. It is counsel’s submission that the defendants failed woefully to prove that exhibit D18 was served on the claimant through his wife, as under cross examination, witness for the defendants maintained that the letter was served by one Umo, a messenger and that there was a proof of the delivery, of which had not been tendered before this Honorable Court. He urged the Court to invoke Sec. 167 (d) of the Evidence Act, 2011 (as amended); IMOLOANDOE v. WAEC (1999) 11-12 SCNJ 121 RATIO 20; BAKARA v. LSCSC (1997) 10 SCNJ 173 @ 179 RATIO 5. Counsel for the claimant further submitted that the appearance of the claimant at the meeting of 11/1/2005 and his being subsequently labeled as an accused person violates the provisions of Sec. 36 (1) of the Constitution of the Federal Republic of Nigeria (as amended). EZENWA v. K.S.H.S.M.B. (2011) 9 NWLR (PT. 1251) 89 @ 100 RATIO 15. ON ISSUE 2 Whether the claimant is entitled to the reliefs sought. Learned Claimant Counsel submitted that where the dismissal of an employee with statutory flavour is found to be illegal; the employee is entitled to reinstatement and subsequently entitled to all the benefits that may have accrued to his office and position up till the date the court so found and to when the employee is retiring. DEFENDANTS’ REJOINDER TO THE CLAIMANT’S REPLY dated 8th December, 2015 and filed on 9th December, 2015. The summary of the defendants’ argument is as follows: 1. That the claimant’s chronic absenteeism, absconding and relinquishing his duty post which resultant is a summary dismissal without any formality is not in doubt. 2. That the defendants’ documents tendered as Exhibits were in original form and that the defendants’ witness laid a good and solid foundation before tendering them. 3. That the exhibits already tendered by the defendants were already admitted by the Court before the amendment of 8th July, 2015 and that as the exhibits are relevant to this case, they were pleaded and they are admissible by law. Learned Defence Counsel urged the Court to disregard the claimant’s argument in its entirety and to dismiss this action, holding that the claimant was validly dismissed by the defendants. Having carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this judgement and specific mention would be made to them where the need arises. Before I delve into the merits of this case I wish to address two issues raised by the parties in the argument of this suit. Both parties made heavy whether of the series of queries received by the claimant over the years some from as far back as 1998. What the defendants expected the court to derive from these old queries was not put before the court. Courts are adjudicators, not investigators; they cannot spend precious judicial time doing the work of litigant and their counsel. For instance, UCHA & ANOR V. ELECHI & ORS  13 NWLR (PT. 1316) 330 SC held that on no account must counsel dump documents on a trial court as no court would spend precious judicial time linking documents to specific areas of a party’s case. See also ANPP V. INEC  13 NWLR (PT. 1212) 547, EZE V. OKOLAGU  3 NWLR (PT. 1180) 183 AT 211 AND BELGORE V. AHMED  8 NWLR (PT. 1355) 60 AT 99 – 100 This is particularly distracting as clearly the defendants after issuing these queries had gone ahead to promote or advance the claimant in 2002 as well as presenting him with an award in 2000. It is clear to the court that the defendants had condoned the infractions of the claimant and to bring them up here and now in this suit not only has no effect but goes to no issue considering the position of the law, I find. The claimant has asked the court to expunge the defendants’ exhibits for not being certified particularly exhibits D2, D3, D4, D5, D6, D7, D8, D9, D10, D11 and D12 – D16 on the grounds that they were not presented by their maker and were public documents requiring certification. DW testified that the exhibits were document from the file of the claimant. As a matter of law, documentary evidence can be admitted in the absence of the maker. See IGBODIM V. OBIANKE (1976) 9-10 SC 179. Where the Supreme Court held that “After all relevance is the key of admissibility. In the hierarchy of our adjectival law, probative value comes after admissibility. And so a document could be admitted without the court attaching probative value to it. That is the point I am making. Basically, admissibility and weight to be attached to the document admitted are two different things”. See Ayeni v. Dada (1978) 3 SC 35." PER TOBI, J.S.C. (Pp.36-37, Paras.F-B) Omega Bank (Nig.) Plc. v. O.B.C. Ltd. (2005) 8 NWLR (Pt.928)547 (2005) LPELR-2636(SC) where it was also held: "Moreover, where a document has been admitted, without any objection, no party can be heard to urge the Court to reject it or to refrain from using it in determining the case, as he is stopped to do so. Even where a document is inadmissible, but the parties had consented to the admissibility of the document, none of the parties will be allowed thereafter, to resile from the agreement and later raise objection to its admissibility. See the case of Ibori vs. Agbi (2004) 6 NWLR (Pt.868) 78." (Per Mbaba, JCA) It is, however, the law that the trial court will have to ignore or refuse to place value on an exhibit that was wrongly admitted, at the point of giving judgment." Per MBABA J.C.A (P 26, Paras A-F) OGUNSAKIN Vs. EDU LGA KWARA STATE & ANOR (2011) LPELR-8816(CA) This court due to the flexibility permissible, and sections 36 and 37 of the TDA 2004 and sections 12 and 14 of the NIC Act 2006, enjoins this Court to be flexible and less formal and to do all such things as are necessary to avoid multiplicity of suits. In this court all frontloaded documents are deemed admitted and parties retain the right to raise their objections to any document in their final written address. What this presupposes that the party raising an objection would identify the particular document/exhibit and with case law and statutory provisions argue the objection for courts consideration and not just to string along the numbers of exhibit and ask the court to notice the lack of certification. Exhibits D2-D7 relate to incidences between 1997-1998, their prejudicial value outweighs their probative value I find and seeing as the infraction contained therein have been condoned by the defendant I find these documents not relevant to the case in point and will be discountenanced accordingly. Exhibits 8 relates the claimant application for a motorcycle, none of the reliefs before this court relate to the issue of the motor cycle, I find this document is of no moment to the determination of this suit and is hereby discountenanced. Exhibits D9, D10, D11 and D12, Exhibit D10 being the claimants handwritten reply to the query, relate to fact in issue directly are properly admitted by this court relying on the combined effect of Sections 14 and 15 of the Evidence Act. 2011 by which Evidence obtained improperly or even in contravention of a law shall be admissible pursuant to section 14 of the Evidence Act 2011 unless the court is of the opinion that the desirability of obtaining the evidence is outweighed by the undesirability of admitting evidence that has been obtained in that manner. In this regard, as spelt out in Section 15 of the Evidence Act, the court shall take into account:- (a) The probative value of the evidence, (b) The importance of the evidence in the proceeding; and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding. See the case of JOHN V. STATE (2011) 18 NWLR (PT 1278) 353 ratio 4 at page 368-369. I am satisfied that Exhibits D 9,D10, D11 and D12-DI are relevant and legally admissible pursuant to the foregoing statutory provisions hence allowed in evidence. I find these exhibit relevant. The position of admissibility today revolves around relevancy, these document are relevant to the determination of the defendant’s case. Exhibit D16 I find is duly certified Both parties went about / argued this matter as if it were a case of wrongful dismissal which is neither an aspect of the claimant’s reliefs nor the defendants counterclaim, ye the exhibits tendered and the arguments made would have been better suited to such a claim. The issue for determination in this suit to my mind is whether there is any merit to the claimant’s suit and whether the defendant is entitled to his counter-claim. The claimant is this suit seeking the following reliefs;- 1. A declaration that the claimant’s employment in the service of Akwa Ibom State Civil Service is valid and subsisting. 2. A declaration that the stoppage of pay-roll action, withholding of the salaries and other entitlements of the claimant by the defendants is illegal, null and void. 3. A declaration that the claimant is entitled to all his salaries privileges benefits and other entitlements that may have accrued to his office and position with the defendants till he is validly retired from the service of Akwa Ibom State. From the claimants statement of fact particularly para 24 the claimant pleaded “that prior to the event enumerated above in February 2003 till date, my salaries and other entitlements had been stopped without any formal communication to me.” The gravamen of the claimants claim is the non payment of salaries since February 2003 with the incidental declaration denouncing the stoppage and his entitlement. He also seeks a declaration as to his continued employment. In order to properly consider the claimants case it is necessary properly to ascertain nature of the employment status of the claimant vis a viz the defendants. The position of the law is “that an employment is said to have statutory flavour if the employment is directly governed or regulated by statute or 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  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  LPELR 4150 CA para C In SULIEMAN ADAMU Vs, MOLAMMMAD SANI TAKORI & ORS  LPELR 3593 CA Jega JCA held that it is clear that the sole determining factor in determining a public servant is the mode of appointment referring to DADA Vs. ADEYEYE  6 NWLR (Pt. 920) 1 at p 19-20. In determining whether the respondent’s appointment is statutorily flavoured or not …..the courts have held that recourse should be had to the contends of the letter of appointment FEDERAL MEDICAL CENTRE IDO EKITI & ORS. Vs. OMIDIORA KOLAWOLE O.  LPELR 4149 CA page 15 para B. The claimant tendered Exhibit 3-C3(1) his letter of first appointment and his letter of Offer of Appointment, the latter which has in its (f) “That you will be subject in all respects to all the conditions of service stipulated in the Government orders and other Government regulations and instructions”, the claimant also tendered his letter of Confirmation of Appointment Exhibit C4 and his Notification of Promotion Exhibit C5 all of which go to establish that the claimants appointment with the defendants is one of statutory flavour. I so find and hold. I shall now consider the merits of the case and shall commence with relief 3 where the claimant is asking for his salaries from February 2003, as this is the mainstay of the claimants reliefs I find, and the other two are declarations that will depend on this relief. The claimant apart from his averment in paragraph 24 of his statement of fact; that his salaries were stopped in 2003 adduced no evidence of what his salary was, where and how he was paid so as the enable the court determine and establish the actual stoppage. Even Exhibit C5 the claimant notification of what would appear to be his last promotion merely stated that the claimant had been, promoted/ upgraded/advanced/converted, without any indication whether the claimant was promoted or upgraded or advanced or converted, to the rank of Clerical Officer I on grade level GL 05 with effect from 1st August 2000. The claimant did not tender any pay slip to indicate what his salary was neither did he tender any Junior staff salary scale tabulation applicable to clerical officers in the 1st defendant as at 2003 to assist the court determine his salaries and entitlement. Furthermore there is nothing before the court to establish the claimants age and as to when he ought to retire as his claim is for his salary till date whereas Exhibit D11, 12 years ago, in 2005 contains a reference that the claimant had eleven (11) years left to serve with the defendants. The court cannot speculate as a court of law does not speculate but acts on the strength of materials and evidence before it, referring to OLASOPE Vs. BABATAYO  ALL FWLR (Pt. 272) 339 at 343. The Defendant in response to the claimants paragraph 24 merely stated in paragraph 20 of their statement of defence that “Paragraph 24 of the statement of fact is false and hereby denied, in response the Defendants repeat all the above stated facts”. All the above stated facts being pleadings as to” the panel of enquiry, rice money offer of land, and the claimants petition to the state House of Assembly”;- none of which have any bearing with the issue of withheld salaries and entitlement. The claimant in return in paragraph 6 of his reply to the statement of defence pleaded “that paragraphs 19, 20, 21, 22 are false, the claimant shall put the defendants to the strictest proof of the averment therein….” As neither the claimants nor the defendant’s argument are helpful the court will proceed to determine this relief on its substance. Now, the position of the law as regards proper travers is that an evasive, vague, bogus or general denial, a mere denial of a detailed, factual situation without attacking the veracity of the details, a traverse that the defendant denies a named paragraph of the statement of claim but shall at the trial require the plaintiff to strictly prove the averments contained therein, all do not amount to a denial for the purpose of raising an issue for trial. If anything, they all amount to an admission. See EL-TIJANI V. SAIDU  1 NWLR (PT. 268) 246; JACOBSON ENGINEERING LTD V. UBA LTD  3 NWLR (PT. 183) 586; LEWIS & PEAT (NRI) LTD V. AKHIMIEN  1 ALL NLR (PT. 1) 460; UBA LTD V. EDET  4 NWLR (PT. 287) 288; OHIARI V. AKABEZE  2 NWLR (PT. 221) 1; LSDPC V. BANIRE  5 NWLR (PT. 243) 620; DIKWA V. MODU  3 NWLR (PT. 280) 170; SANUSI V. MAKINDE  5 NWLR (PT. 343) 214; EKWEALOR V. OBASI  2 NWLR (PT. 131) 231 and IDAAYOR V. TIGIDAM  7 NWLR (PT. 377) 359. However in this court the claimant must prove his case as far as the evidentiary burden lies on him and cannot rely on the weakness of the defendants’ case. See LAWRENCE AZENABOR Vs. BAYEREO UNOVERSITY KANO  25 NLLR (PT. 70) CA at 69 and OGUNYADE Vs. OSUNKEYE  15 NWLR (Pt. 1057) at 247” It is also the law as regards declarations that the claimant must satisfy the court that he is entitle to these relief claimed CHUKWUMA v SPDC 1983 LPELR 864 SC. Bearing in mind that the position of the law under our adjectival and substantive law of evidence remains that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist, and the burden of proof in a suit lies on that person who would fail if no evidence is given on either side, citing sections 131 and 132 of the Evidence Act 2011. In this case, that the onus of proof in civil cases lies on the claimant to satisfy the Court that he is entitled on the evidence adduced by him to the claim he asserts and he must rely on the strength of his own case and not on the weakness of the defence, see also the case of IRONBAR Vs. CROSS RIVER BASIN AND RURAL DEVELOPMENT AUTHORITY  2 NWLR (PT. 857) 411 AT 434. What all that means is that that he who avers must prove. OLANIYAN & ORS Vs. UNIVERSITY OF LAGOS &ORS 2NWLR (Pt.9) 599. One who alleges must prove. Also, where there is no evidence led to establish the sums due to the claimant as salaries and allowances no specific sum can be ordered by the court. In the case of IHABUHMB Vs ANYIP 12NWLR(Pt.1260) 1 it was held that in a claim for payments of salaries and other benefits, such salaries and other benefits must be specifically pleaded and proved. The claimant in addition cannot benefit from the recent court of Appeal pronouncement in EZE & ORS. v. GOVERNOR OF ABIA STATE & ORS. (2015) 53 NLLR (PT. 179) 299 CA @ 313 as in that case where although salaries were not specifically pleaded and conflicting figures were tendered the court went ahead to make a consequential order that the appellants be paid all their due salaries and allowances, this was because the appellants’ salaries flowed naturally from the relief which sought reinstatement as a result of wrongful termination. Salaries and a job done go together. In the instant case the claimant is asking for salaries and entitlements from 2003. Without more this relief fails. Relief 1 is for a declaration that the claimant’s employment is still subsisting. The claimant in this relief is seeking a declaration that he is still a staff of the 1st defendant having not given any a time perimeters. Having found that the claimant’s employment is one of statutory flavour this presupposes that the claimants employment has that special protection that goes with statutory employment and that is the rules and procedure regulating discipline and the termination of the employment of an employee with statutory flavour must be strictly complied with before the employee can be properly terminated or dismissed. This means that as the claimant’s appointment is governed by the conditions of service stipulated in the Government orders and other Government regulations and instructions, the government orders being the precursor of the civil service rules see the unreported case of NICN/IB/54/2013 TITILAYO ADERIGBE Vs. NISER delivered 14th March 2014. It is the case of the claimant that his salaries were stopped in 2003, the defendants at trial argued that the claimants salary was stopped in 2005. The claimant in response to the question as to when he last signed the attendance register stated in 2005. The claimant was asked during trial on 8th December 2014 about his absence from work, see the extract of the proceedings below;-. -MORRISON Is it part of your duty to be signing time book and movement register CW Yes -MORRISON When did you last sign the time book or movement register. CW 2005 when my table was given to another person - MORRISON Why was your table given to another CW I do not know - MORRISON Where you at your duty when they it carried out CW It was because of my illness that my table was given to another and my duty assigned. - MORRISON Was it because of your illness that you stayed ways from your duty post. CW Yes. The illness was as a result of non-payment of salary, no place to, sit down and roaming around. I had no place to sit when I come to work. I go from office to office perching, they took my machine, when it was taken from me it became impossible for me to feed myself and my family and go to work. Later on that same day the claimant has testified thus; -MORRISON You said you were sick that was why you were away, CW Yes coupled with other things - MORRISON Did you apply for sick leave CW I did not with reason, I suddenly fell ill I did not know where they took me - MORRISON You could not sent your wife to inform your employer CW She is not a civil servant she does not know the procedure and was running around to get me treated. - MORRISON Your wife is a porter with the University of Uyo CW That is false. The defendants tendered exhibit C18 the Akwa Ibom Civil Service Rules revised up to December 2005 but in their final written address made copious references to the Public Service rules 2010. Now the law is well settled that it is the law as at the time the cause of action that will govern the cause of action, in this case the claimant states that his salary was stopped in 2003 but that he stopped coming to work following the stoppage of his salary, relocation of his table, re distribution of duty and his illness in 2005. The Akwa Ibom Civil Service Rules 2005 in its preamble states that prior to the coming into force of Exhibit D18 the Cross River State Laws of 1974 were in use as is applicable to Akwa Ibom state, Now rule 04312 of Akwa Ibom Civil Service Rules 2005 provides that; “Any officer who absents himself without leave renders himself liable to be dismissed from the Service and the onus shall rest on him to show that the circumstances do not justify the imposition of the full penalty.” Now Absence without leave is listed in Rule 04301 as number (iii) of the list of examples of misconduct. Rule 04331 prescribes the disciplinary procedure Learned Author Odabi Osaretin Kingsley in his book Case Law Annotation of Public Service Rules in Nigeria© 2013 Evergreen Overseas Publication Benin City, at page 113, Section 3 while treating the subject of Misconduct cited the case of UDEGBUNAM Vs. FCDA  5 NWLR (Pt.449) -487 para G where the Court of Appeal held that “the absence of an employee without valid excuse from duty is an act of indiscipline or disobedience of lawful order. This amounts to insubordination and tantamount to misconduct which could earn him a dismissal”. The learned author went on to say this serious misconduct can lead to a dismissal whilst misconduct would result in a termination which he describes as a connoting the contract has been put to an end lawfully. The Akwa Ibom Civil Service Rules 2005 make such no distinction but the provisions of 04311 are succinctly clear. The position of the law is according to SOGBESAN v. UNIVERSITY OF LAGOS & ORS. (2014) 47 NLLR (PT. 153) 346 NIC @ 351 “where allegations have made against an employee, the employer is entitled to set up a panel to investigate the allegations. Such an investigation panel is not a court of trial. It is enough if it gives to any of the persons whose names feature in the inquiry the opportunity of making some representations, oral or written, before it. In the process of investigation, it can receive its information from any source. The panel of inquiry not being a court of trial, none of the persons whose name feature in the inquiry can insist on any right to cross-examine other person who make allegations or present memoranda at the inquiry. Once the panel concludes its inquiry and makes up its mind that any point had prima facie been made out which points to the fault of any person, the employer must first inform such an employee of the case against him and give him the opportunity to refute, explain or contradict it otherwise exculpate himself by making any representations or defence thereto before the employer can lawfully use those points as bases for dispensing with his services. See the case of BABA v. N.C.A.T.C. (1991) 5 NWLR (PT. 192) 388 referred to.] (P. 36, PARAS. C-G) ; (1991) 2 NSCC 145 @ 158 referred to. The above represent the constitutional and case law position of the procedure to be followed in dismissing a statutory employee. The question before the court not being one of wrongful dismissal I shall stop here. With the above as backdrop the onus is on the claimant to show the defendants that his absence since 2005 was not one for which he ought to be dismissed. Once that is done the next step would be to examine the procedure adopted by the defendants juxtaposed against the procedure set out above. When asked in open court if he had submitted a Doctor’s report for his absence he said no, his testimony that he was treated in a church was also not substantiated either as he failed to present any proof thereof. The claimant explanation that he had reason for not applying for medical leave or presenting a medical report renders this court unable to properly evaluate the situation so as to determine whether or not the claimants absence or better still the reason for it falls within or outside the circumstances for which the claimant should be dismissed or whether he should be exculpated. Not having furnished this vital piece of evidence I find that the claimant has not proved to this court that he is entitled to this relief. The claimant has not shown this court that he actually worked for the defendant beyond 2005 which in itself raises a jurisdictional question. I shall come to this later on in the judgement. For the reasons just stated I find that this court cannot grant relief 1, this relief therefore also fails. As does relief 2 being contingent on the court making a finding for entitlement (Reliefs 1 and 3). All the claimants reliefs consequently fail. Having said that this suit raised the jurisdictional issue of whether the claimants claims are not statute barred, the claimant is asking for payment of his salaries from 2003 to date. The cause of action I have determined is contained in this reliefs 1, 2, 3 and paragraph 24 to wit the non-payment of the claimant’s salary since 2003. Now to the claimants counter claim of the defendants, who are asking the court for the following reliefs;- 1. The sum of #1,070,575.00 (One Million Seventy Thousand Five Hundred and Seventy Five Naira) only being rice money owed the defendant by the claimant. 2. Damages assessed at #200,000.00. Bearing in mind that a counter claim is a regarded as an independent action the counterclaim of the defendant was first filed in this court on the 26th May 2014, the transferred record have no indication that the counter claim was ever filed in the court of first trial and even if it was defendant filed their very first processes in that court on 14th July 2014. The counterclaim relates to embezzled rice money which from the statement of defence filed in this court the rice money saga was the subject of the 1st defendant’s query to the claimant of 15th December 2004 Exhibit D14. The defendants filed their counterclaim almost two months after their conditional memorandum of appearance dated the 1st April 2014. This raises the question as to whether the claimants counterclaim is not caught up by the public officers protection Law of Akwa Ibom State The issue of whether the claim of a government agency or of government can be subject to Public Officers Protection or limitation laws has been well settled in the case of AIYETAN VS. NIGERIAN INSTITUTE OF OIL PALM RESEARCH  LPELR 275 SC is most instructive. In that case the plaintiff had instituted an action for wrongful dismissal and his employers counter claimed for N12, being money the plaintiff was alleged to have taken for his own. The Supreme Court upheld the trial courts dismissal of the counterclaim as being statute barred, thereby overturning the decision of the Court of Appeal that a former public office, former employer cannot raise Section S2A Public Officers Protection Act against the Federal Government or any of its agencies as employer. The Supreme Court Nnamani A JSC had this to say “I see nothing that would necessitate the exclusion of the Federal Government or any of its agencies from the application of the Act. Applying the above authority I find and hold that the defendants are entitled to raise the defence of Public Officer Protection Act against the claims of the claimant in this suit. Having settled, by virtue of AIYETAN VS. NIGERIAN INSTITUTE OF OIL PALM RESEARCH SUPRA that the POPA can be applied to Government and its agencies the next step would be to determine whether this suit is statute barred See the case of EMIATAR V. THE NIGERIAN ARMY & 4 ORS  12 NWLR (PT. 631) 364 AT 372;  9 SCNJ 52. When a court is called upon to decide whether a case is statute-barred, all the court must do is look at the originating processes of the claimant and look out for two things: when the claimant states his cause of action arose; and when he filed his suit before the Court. See MRS. O. ADEKOYA V. FEDERAL HOUSING AUTHORITY  4 SC 167 where it was held that limitation of action is determined by looking at the writ of summons or the statement of claim alleging when the wrong was committed which gave the plaintiff the cause of action and by comparing that date on which the writ of summons was filed. From the originating process this claim was first filed on the 26th May 2014, I find that the cause of action arose sometime before 15th December 2004, by simple mathematical calculation I find that the defendants counterclaim was instituted nine (9) years, five (5) months and twelve (12) days after the cause of action probably accrued. I have no hesitation in finding that the defendants counterclaim is statute barred and having so found this court cannot continue in the determination of this counterclaim for reason of lack of jurisdiction due to statute bar, the said counterclaim is hereby dismissed. For the avoidance of doubt, neither the claims of the claimants not the counter claim of the defendant have been proved. Both claims lack merit and the claimant claim is hereby struck out while the defendant counter claim is accordingly dismissed. Judgment is hereby entered. I make no order as to cost. …………………………………… Hon. Justice E. N. Agbakoba Presiding Judge Calabar Division.