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Representation: E.U. Okorie (Mrs.) holding the brief of C.O. Azubuike for the Claimant Grant Osu for the Defendant JUDGMENT The Claimant filed this suit against the Defendant by way of complaint on 29th November 2013 and claimed the following reliefs: 1. A Declaration that the termination of the Claimant's appointment or Claimant's compulsory retirement of employment on 15th May 2002 with the Defendant over and in respect of imputations of criminality and/or dereliction of duty having been subjected to harsh administrative one-sided trial wherein the Claimant was found wanting, punished adequately with monetary mandated refunds later resurrected leading to the termination or compulsory retirement of the Claimant or Claimant’s employment on the 29th August 2013 hinged on a so called Ministerial Disciplinary Committee wherein the Claimant was equally not given fair hearing and or heard or given the opportunity to defend himself over the aforesaid criminal imputations amounts to double jeopardy, high handedness, after thought, retrospectively vindictive, ultra vires, null and void the Public Service Rules (PSR). 2. An Order compelling or ordering the Defendant to recall or reinstate the Claimant on account of the reliefs sought as herein specifically stated. The Complaint was filed alongside the Statement of Claim and other processes which were served on the Defendant. The Defendant, upon receipt of the originating processes, filed a Memorandum of Appearance and Statement of Defence vide a motion for extension of time on the 8th day of May 2014. Upon exchange of pleadings, the Claimant opened his case on the 13th day of May 2015. He testified as a sole witness and called no further witness. He was fully cross examined on the same day and he closed his case. The Claimant tendered Exhibits A – K. The Defendant called one witness, Mr Chinwuba Maduako, the Defendant's sole witness completed his evidence-in-chief and was fully cross examined. The Defendant tendered Exhibits D1-D12b. On the 30th day of September 2015, the Court ordered written addresses in accordance with the rules of this court. The defendant filed its final written address on the 17th day of November vide a motion for extension of time. The claimant’s final address was filed on the 7th day of December 2015 vide a motion for extension of time. Both motions were taken and the addresses were deemed filed on the 16th day of February 2016. The same day, parties adopted their respective written addresses. In the defendant’s written address, Counsel identified four issues for the determination of the Court which are thus: 1. Whether the Defendant is a juristic person capable of being sued in this action. 2. If issue 1 above is answered in the affirmative, whether the Claimant whose misconduct has undermined the confidence which should exist between him and the Defendant; and for which misconduct the Defendant no longer requires his services, could be foisted on the Defendant by this Honourable court. 3. Whether the subsequent retirement of the Claimant from the employment of the Defendant by the Honourable Minister of Health after the Claimant's suspension and recall by the Defendant amounted to double jeopardy bearing in mind the pleadings of and the evidence adduced by the parties. 4. Whether from the evidence, pleadings and frontloaded documents, the Claimant has sufficiently proved his case against the Defendant in the circumstance. Regarding the first issue, it is Counsel’s contention that the Defendant as sued is not a juristic person and as such cannot be properly sued by the Claimant. It is trite Law that only a juristic person has the power to sue and be sued. The Defendant is merely an administrative arm of the Federal Ministry of Health which itself is a creation of Statute that can be sued. Counsel urged the Court to resolve issue one in the Defendant’s favour and dismiss the claim in its entirety. Alternatively, counsel submitted that the Claimant tendered his letter of employment, letter of confirmation and his letter of promotion which clearly show who his employer is. Under cross examination, the Claimant confirmed that his promotion was approved by the Federal Minister of Health. This admission further lends credence to the source of his employment. It is trite law that documentary evidence cannot be altered by oral evidence. Counsel urged the Court to hold that the Claimant is the employee of the Federal Ministry of Health and not of the Defendant. With respect to issue two, counsel submitted that in a master and servant contract of employment, such as the contract between the Claimant and the Defendant in this case, a "misconduct" is what the employer (Defendant) considers to be a misconduct. Consequently, if an employer considers the action of his employee or an allegation made against his employee to amount to misconduct, the employer reserves the right to retire or dismiss the employee on that ground. See OYEDELE vs. IFE U.T.H (1990) NWLR (Pt. 155) 194. Counsel submitted further that it is the employer’s prerogative to dismiss an employer for good or bad reason or for no reason at all as long as the conditions precedent to such dismissal is met. The court has to examine the service agreement between the parties or the Claimant’s letter of employment to ascertain whether or not the conditions precedents have been met. He submitted that in adducing evidence in support of his case, the Claimant did not tender the conditions of service or service agreement which the Court would have relied on in determining the propriety or otherwise of the defendant's action of retiring the Claimant. It is Counsel’s further contention that though the Claimant's duties as a Senior Accountant are not expressly stated in Exhibit A, B, K, and L, his duties with the Defendant cannot include the embezzlement of the sum of over Four Million Naira. It is Counsel’s further submission that the Claimant's fraudulent activities in embezzling the sums of money belonging to the Defendant are activities outside the scope of the Claimant's duties and are also prejudicial to the Defendants interest. Counsel referred to ANAJA vs. UBA PLC (2011) 15 NWLR (Pt. 1270) 377 at 398 paras F - G, where the Court of Appeal held thus: “Misconduct is viewed seriously and punished harshly. In SHUAIBU vs. NAB (Supra) at 129, Wali J.S.C. stated that: "any act outside the scope of an employee's duties in his employer's establishment which is prejudicial to the latter's interest, is willful misconduct, considering the nature of the business and service in which his master is bound to provide to the customers.” Counsel argued that the reprehensible actions of the Claimant as evidenced in Exhibits F are serious misconducts for which summary dismissal of the Claimant would have been justifiable but the Defendant rather chose to retire him. Counsel urged the Court to resolve issue two in favour of the Defendant. On issue three, it is the submission of Counsel that to properly show that a person has been a victim of double jeopardy, the Court in the Case of UMEZE vs. STATE (1973) SC 22 laid down the following criteria: a. That the Applicant has been brought before a Court of competent jurisdiction b. That the Applicant has appeared before the Court on a criminal charge. c. That the Applicant had been acquitted or convicted on the charge for which he was brought before the Court. d. That the offence for which the Applicant is being brought before the Court again has the same facts as the offence for which the Applicant had been previously convicted or acquitted. More so, Section 36(9) of the Constitution of the Federal Republic of Nigeria 1999 as amended reads: “ No person who shows that he has been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence, save upon the order of a superior Court.” Flowing from the above, counsel submitted that the Claimant in the present case had at no time appeared before a court of competent jurisdiction on a criminal Charge. There was no evidence from the Claimant that he was acquitted or convicted of any charge brought by the Defendant. The Claimant did not give evidence of similar facts in relation to two different offences for which he was either acquitted or convicted for. In fact the Claimant stated under cross examination that the Defendant never took him to Court. Thus, from the foregoing paragraphs the Claimant has woefully failed to prove that he suffered any double jeopardy. Counsel urged the Court to resolve issue No 3 in favour of the Defendant and hold that the findings/decision of the Ad hoc committee and the Ministerial Panel do not amount to double jeopardy. Arguing on issue four, Counsel stated that from the pleadings filed and exchanged by the parties and evidence adduced in their support, the Claimant has not been able to prove to the Court that he has suffered any double jeopardy as a result of his retirement from the employment of the defendant. See AGUSIOBO vs. OKAGBUE (2001) 15 NWLR (Pt. 737) 502; SANYA vs. AFRICAN INTL. BANK (2001) 4 NWLR (Pt. 703) 502. Further on this issue, counsel referred to the case of UBN PLC vs. SOARES (2012) 11 NWLR (Pt 1312) 550 E 578 Paras G-H, where the court posited thus: “It is a general principle of our civil jurisprudence, and quite trite that a Court will not impose an employee upon an unwilling employer. It is also true and I think commonsense dictates that an employer cannot also prevent an employee from resigning his employment for whatever reason. The position of the court in this kind of situation where an employer fires his employee is to determine whether due process was followed having regard to the terms of the contract of employment and that the employee is paid his entitlements in the circumstance.” Counsel submitted that flowing from the evidence adduced by the Defendant, including Exhibit D5, the report of the Panel and Exhibit D11 which is the minutes of the Establishment and Promotion Committee which was tendered by the Defendant; it is clear that due process was followed in retiring the Claimant from the employment of the Defendant. Counsel therefore urged the court to resolve issue four in favour of the defendant. Further on this issue, counsel contended that if facts are pleaded by one party and the other admits it, the fact ceases to be in controversy between the parties and need not be proved at the trial. See Section 123 of the Evidence Act, Cap E. 14, 2011. However where facts pleaded are denied the burden of proving the facts lies on the party who asserts the existence of such fact. See Sections 131 and 132 of Evidence Act. The Claimant sought to establish that he had refunded the entire sum but failed to make a computation of monies paid. Again, the Claimant did not deny or counter under cross examination the facts averred in paragraph 4 of the Statement of Defence as follows: “In further answer to paragraph 2 of the statement of facts, the Defendant avers that it is an administrative creation of the Federal Ministry of Health which supervises 'the Defendant's activities and functions and equally ratifies, approves her actions including staff employments, emoluments, promotions, retirements, terminations and dismissals” Counsel submitted further that the acceptance or rejection of an Administrative Panel of Inquiry's recommendations is usually done in writing by the authority that set it up. See TAO & Sons IND LTD vs. GOV OF OYO STATE & ANOR (2011) 6 NWLR (Pt. 1242) 1. In the present case, the Hon. Minister of Health rejected the recommendation of the Defendant's Ad Hoc Disciplinary Panel by Exhibits D12a and D12b which was eventually communicated to the Claimant. It is counsel’s submission that the Claimant did not suffer a denial of fair hearing or a breach of the rules of natural justice. Counsel relied on the holding in UNICAL vs. ESIAGA (1997) 4 NWLR (Pt. 582) 719, that “suspension is a normal proceeding and it is to facilitate investigation of an alleged impropriety. The officer affected cannot in the event complain of denial of fair hearing neither can he also complain against breach of the rules of natural justice. The interest of his employer has been held to be overriding at this stage”. Counsel submitted further that the Claimant was not denied fair hearing by the suspension meted out by the Defendant. Furthermore, the Claimant confessed to the said serious misconduct and the Courts have held in IMADE vs. IGP (1993) 1 NWLR (Pt. 271) 608 at 618 that where an employee, in the course of pre-inquiry or investigation freely admits to his employer or the Police that he is guilty of the misconduct, he can face discipline from his employers. Also, the Claimant did not deny the fact that he was part of the Adhoc Disciplinary Panel and was given the opportunity to put across his case. The Claimant did not also object to the tendering of Exhibits D11, D12 (a) and (b), the minutes of the Establishment and Promotion Committee and the letter of approval from the proceedings of the Ad hoc Disciplinary Panel by the Defendant at the trial. Counsel urged the Court to resolve issue four in favour of the defendant. He urged the Court to hold that the Claimant has woefully failed to prove his claims and dismiss the case. In the introduction of the Claimant’s final written address filed on 7th December 2015, Counsel submitted that where an employer dismisses or terminates the appointment of an employee on grounds of misconduct, all that the employer needs to establish to justify his actions is to show that the allegation was disclosed to the employee; that he was given fair hearing. That is to say that the Rules of natural justice were not breached and that the disciplinary Panel followed laid down procedure, if any, and accepted that he committed the act after investigation. Counsel referred to the following Supreme Court cases: 1. UNIVERSITY OF CALABAR vs. ESSIEN (1996) 10 NWLR (Pt. 4770) 225 at 262 2. OLATUBOSUN vs. NISER COUNCIL (1988) 3 NWLR (Pt. 80) 25 3. YUSUF vs. UNION BANK OF NIGERIA (1996) 36 NWLR (Pt. 457) 632 Counsel argued that from the foregoing, the Defendant breached the contents of these legal authorities cited. He further argued that the Claimant was compelled to apologize to the Defendant as the only way of retaining his job; and to start the refund of the loss sustained. However, the actual amount was not made known to either the court or the Claimant. However, the Claimant was compelled to sell his family property in order to defray the uncertain loss. Counsel urged the Court to take Judicial Notice of the fact that the Defendant is with the Claimant's departmental Books of Account where the alleged forgery and manipulation took place. The termination of the Claimant is more political than statutory. He submitted further that an employee's wrongdoing must be specific and he is entitled to a formal notice of such wrong doing and a hearing on that specific act. Counsel referred to the cases of Aiyetan vs. Nigerian Institute for Oil Palm Research (1987) 3 NWLR (Pt. 59) 48; and Adeniyi vs. Governing Council Yabatech (1993) 6 NWLR (Pt. 300) 426 SC. Also, where an employer fails to follow the procedure laid down by law in dismissing an employee, such dismissal is void. Counsel referred to the Indian Industrial Disputes Act 1947 and the case of Punjab National Bank vs. Their Workmen (1959) 2 LLJ 666; and submitted further that where an employee who is accused of misconduct is unaware of the case against him is absent when witnesses testify, such procedure amounts to a denial of natural justice. See the following cases: 1. State Bank of India vs. Jaim (1972) Air 136 SC 2. Nze vs. Nigerian Ports Authority (1997) 11 NWLR (Pt. 528) 210 3. National Electric Power Authority vs. Ango (2001) 17 WRN 142 Subsequently, counsel proceeded to address the issues raised by the Defendant’s Counsel. He submitted that the Defendant is a juristic person which can sue and be sued. The Board of Directors of the Defendant is appointed by the President of the Federal Republic of Nigeria. The Defendant many a time has published for vacancies of its staff in various National Dailies in Nigeria without recourse to the Minister of Health. The Claimant’s confirmation and Promotion were duly signed solely on behalf of the Defendant and not the Minister of Health. The Defendant is therefore a juristic person. Counsel urged the Court to resolve the Defendant’s issue one in favour of the Claimant. Again, counsel submitted that the claimant has not engaged in any misconduct except that the department entrusted into his care with so many staff sustained a loss which is yet to be quantified and ascertained by the Defendant who carted away the Books of Account. He submitted that the Defendant has not proven the allegation of misappropriation of funds leveled against the Claimant. The DW1 merely stated in answer to the Claimant Counsel's Cross-examination on how much money was misappropriated and DW1 stated that about Four Million Naira N4,000,000.00. It is on record apart from DW1 that no other witness was called by the Defendant to corroborate the documents tendered by the Defendant as Exhibits. Counsel submitted that the Claimant is a victim of extenuating circumstances and internal conspiracy in the Accounting Department of the Defendant. He stated further that the Defendant's cited authority of Oyedele vs Ife U T H (1990) NWLR (Pt. 155) 194 does not apply in the instant case by virtue of the inability of the Defendant to state specifically the real amount of money that was missing. Counsel’s contention is that the sack of the Claimant was politically motivated by some of the now serving and retired staff based on age. Counsel urged the court to resolve the Defendant’s issue two in favour of the Claimant. It is the further submission of Counsel that the Defendant has not proven their case of alleged criminality against the Claimant. The Claimant stated that he is no longer indebted to the Defendant in any manner whatsoever. However, the Defendant failed to provide a credible witness who will refute the Claimant's assertions; counsel urged the court to resolve issue three in favour of the Claimant. On a final note, Counsel submitted that the Claimant has proved his case against the Defendant. He submitted further that some of the documentary evidence tendered and admitted in evidence against the Claimant was obtained under compulsion from the Claimant when he had no knowledge of termination of his appointment. Counsel urged the court to discountenance the submission of the Defendant which lacks merit and grant the reliefs sought by the Claimant. Court’s Decision I will now proceed to determine this case. The Claimant, as CW1, gave evidence in line with facts pleaded in his statement of facts. It is his evidence that he was employed by the Defendant on 15th May 2002. Due to his hard work and diligence, he was converted from PEO II to Senior Accountant by a letter dated 25th September 2009 and by a letter dated 20th June 2013, he was further promoted to Principal Accountant. He tendered his letters of employment, confirmation, conversion and promotion in evidence as Exhibits A, B, C and D. The Claimant testified further that upon an allegation made against him, he was suspended indefinitely without payment of salary. His letter of suspension dated 22nd June 2010 was put in evidence as Exhibit E. In the Claimant’s words, he stated thus: “In my helpless and frenzied situation, I was maligned, humiliated and irresponsibly caricatured”. The Claimant also gave evidence that the Defendant terminated and or compulsorily retired him via a letter dated the 29th August 2013, which is in evidence as Exhibit F. According to the Claimant, his “administrative trial and judgment thereto by the defendant lacked the modicum of transparency, more so when he was muzzled by the defendant”. The Claimant said that he wrote some letters of appeal to the Defendant and his counsel also wrote on his behalf demanding re-instatement but the Defendant did not reply the letters till date. Exhibits G, H, J, K, L are the letters referred to by the Claimant. The claimant filed a reply to the defendant’s Statement of Defence on 31/10/2014 but there is no evidence to prove the facts pleaded in the reply. It is settled law that pleadings are not evidence and where no witness is called to substantiate pleaded facts, the pleaded facts are deemed abandoned by the party and are liable to be struck out by the court. See NEPA vs. ADEGBNERO (2003) FWLR (Pt. 139) 1556; I.N.E.C vs. A.C (2009) ALL FWLR (Pt. 480) 732 at 803. This court will therefore deem the Claimant’s reply to the statement of defence as having been abandoned and it is consequently hereby struck out. The Defendant’s witness, Chinwuba Maduako, testified that he is the head of Discipline Unit of the Defendant’s Administrative Department. He stated that the Claimant was not a direct employee of the Defendant but he was employed by the Federal Ministry of Health. It was the same Federal Ministry of Health which ordered his retirement from service on 29/8/2013. DW1 also testified that the Defendant’s activities, which include employment, payment of salaries, retirements or termination of employment, are being supervised or directed by the Federal Ministry of Health because the defendant is an administrative creation of the Federal Ministry of Health. Although the Claimant was suspended indefinitely without payment of his salaries, the Claimant was never in any way maligned, humiliated or caricatured. Upon the Defendant’s receipt of an allegation against the Claimant, an internal audit was carried out and irregularities were discovered in the vouchers prepared by the Claimant as the accounting officer of the unit. The Claimant was issued a query to explain the lapses found in the records. The Claimant however did not reply the query until 3 weeks later. The Defendant also set up an 8-man ADHOC Disciplinary panel to look into the irregularities involving the Claimant. The Claimant and other staff involved were present in the sittings of the panel. The Claimant was invited to each of the meetings and he was heard in the meetings. The panel’s recommendation to the Defendant were that the Claimant be suspended until he pays the total sum involved; the penalty of dismissal should not be applied; and the Claimant, upon his resumption from suspension, should not be allowed to head any unit involving money. Following these recommendations, the Claimant was suspended vide letter dated 21st June 2010 and he was recalled from suspension by letter dated 10th January 2011. The Claimant’s suspension was a temporary measure because the Defendant was not the employer of the Claimant. Subsequently, the meeting of the Establishment and Promotion Committee held from 19th to 21st September 2012 where the cases of staff facing disciplinary actions were reviewed. The Committee recommended that the employment of the Claimant be terminated or he be dismissed but the Defendant’s Senior Staff Committee recommended instead that the Claimant be retired from service. The Federal Ministry of Health approved this recommendation by a letter dated 14th may 2013 and the Claimant was communicated on 29th August 2013. It was the Claimant’s employer who retired him and not the Defendant. DW1 stated that the Defendant is not a proper person to be sued because it is not a juristic person and also not the employer of the Claimant. In concluding his evidence, DW1 urged this court to dismiss the Claimant’s claims because he is not entitled to his claims. I must not forget to mention that DW1 tendered a number of documents in evidence. I will refer to them where necessary in the course of this judgment. Having thoroughly examined the facts of this case, two issues arose for determination in this suit. These are: 1. Whether the Defendant is a proper person to be sued in this suit? 2. Whether the Claimant has proved his case as to entitle him to the reliefs sought in this suit? ISSUE ONE: In paragraph 17 (a) of the Defendant’s statement of defence, the Defendant pleaded the fact that it is not a juristic person. DW1 also gave evidence of this fact in paragraph 19 (a) of his deposition and in paragraph 6 thereof, he stated that the Defendant is only an administrative creation of the Federal Ministry of Health. The submissions of the Defendant’s counsel, in issue one of the Defendant’s final written address, is also on this point. The Defendant’s counsel has argued that the Defendant is not a juristic person and cannot sue or be sued. In effect, it is the Defendant’s contention that it cannot be sued in this suit for the reason that it is not a juristic personality. In his response to this issue in his written address, the Claimant’s counsel merely argued that the Board of Directors of the Defendant was appointed by the President and that the Defendant is the employer of the Claimant. Counsel was not able to point this court to any law or Statute or Act where the Defendant was established or created. The issue of the competence of parties before a court is a jurisdictional matter and very fundamental and integral to the adjudicatory process of the court. No court of law can adjudicate in a matter without competent parties before it. In law, a person must have recognized ability to sue and be sued to qualify as a competent party in any proceeding either as a Plaintiff or Defendant before any court of law for it to exercise its jurisdiction. It is therefore necessary to determine whether the Defendant is capable of being sued as a Defendant to this matter. Generally, the law recognizes two categories of persons who can sue and be sued in the court. They are natural persons or artificial persons or institutions having juristic personality. A party who commences an action in court or who is sued to court must be a person known to law. ZAIN NIG. LTD vs. ILORIN (2013) All FWLR (Pt. 681) 1518 at 1550; N.F.C.A. vs. LALOKO (2003) FWLR (Pt. 144) 482 at 495-496; GENEVA vs. AFRIBANK NIG. PLC (2013) All FWLR (Pt. 702) 1652 at 1678. It appears from the facts that the Defendant is not a creation of statute but does that imply it cannot be sued? The law is that it is not only natural persons or corporation (aggregate or sole) that has the attribute to sue and be sued. There are bodies which are impliedly conferred with right to sue or be sued though unincorporated. They are not legal personae strictu sensu but have a right to sue or be sued by a particular name. The Federal Medical Centre is an establishment of the Federal Government and the name is nationally acknowledged. From the facts of this case, the Defendant has some functions, undertakes some duties and has taken action against the claimant which resulted in the termination of the Claimant’s employment. As a Federal institution with a Management Board, recognized functions, powers, duties, responsibilities and power of discipline over staff, it cannot be doubted that in the exercise of these functions and powers, rights of third parties would necessarily be affected, as is the complaint in this case. If in the exercise of its functions the right of anyone is infringed can it be said that it cannot be sued simply because it was not created by statute? This question was answered in THOMAS vs. LOCAL GOVERNMENT SERVICE BOARD (1965) 1 All NLR 174 where the Supreme Court observed that with regards to unincorporated bodies which have power to do certain acts which can result in injury to others is that they must impliedly be taken to have power to sue and sued for those acts. In KPEBIMOH vs. THE BOARD OF GOVERNORS, WESTERN IJAW TEACHERS TRAINING COLLEGE (1966) 1 NMLR 130 at 133, the instance where an unincorporated body can be sued was put, and quite rightly in my view, as follows: "Now, although a corporation and an individual or individuals may be the only entity known to the common law who can sue or be sued, it is competent to the Legislature to give to an association of individuals which is neither a corporation nor a partnership nor an individual a capacity for owning property and acting by agents, and such capacity in the absence of express enactment to the contrary involves the necessary correlative of liability to the extent of such property for the acts and defaults of such agents. It is beside the mark to say of such an association that it is unknown to the common law. Also, in CARLEN (NIG.) LIMITED vs. UNIVERSITY OF JOS [1994] 1 NWLR (Pt. 323) 631, it was held that a thing which can own property, which can employ servants, and which can inflict injury, must be taken to have impliedly been given the power to make it suable in a court of law for injuries purposely done by it. From all I have said so far, I hold the view that the defendant can be sued for its acts, particularly in issues of contract of employment of its staff. I take strength in this view from the Court of Appeal decisions in these cases: FMC, IDO-EKITI vs. OLAJIDE (2011) All FWLR (Pt. 593) 1944; FMC, IDO-EKITI vs. KOLAWOLE (2012) All FWLR (Pt. 653)1999; FMC, IDO-EKITI vs. MICHAEL (2012) LPELR 20406 (CA). The Defendant’s contention that it cannot be sued because it is not a juristic person is hereby discountenanced as it holds no water. Further on the issue whether the Defendant a proper defendant in this suit is the denial by the Defendant that it is the employer of the Claimant. The Claimant pleaded in paragraph 4 of the statement of the facts that he was employed by the Defendant on 15th May 2002. The Claimant also gave evidence to this effect. But the Defendant denied this fact. The import of the facts pleaded by the Defendant in paragraphs 3, 4, 12 and 16 of the statement of defence is that the Defendant is not the employer of the Claimant and in paragraph 17 (b), the Defendant contended that it is not the proper party to be sued by the Claimant because it is not the Claimant’s employer. The Claimant’s employer, according to the Defendant, is the Federal Ministry of Health. In order to determine who the Claimant’s employer was, I will have to have recourse to the Claimant’s employment letter. The Claimant tendered his employment letter in evidence as Exhibit A. DW1 too tendered another copy which was admitted in evidence as Exhibit D2. Both employment letters are in respect of the Claimant and the content are the same. The letter reads thus: FEDERAL MINISTRY OF HEALTH AND SOCIAL SERVICES FEDERAL MEDICAL CENTRE (QEH) UMUAHIA ADMINISTRATION DEPARTMENT DATE: 15th May 2002 OUR REF: FMC/QEH/G.311 VOL. 4/28 Mr. Oti, Chukwuemeka c/o Dr. Ofoedu J.N Federal Medical Centre, Umuahia. Offer of Appointment I write to offer you an appointment as Higher Executive Officer (Accounts) having been found suitable for appointment into the service of the Federal Medical Centre, Umuahia, following your interview from 22nd to 24th April, 2002 for the above named post. Your appointment is on probation for two years and subject to confirmation if found satisfactory. This appointment during this period of probation will be terminated without notice if you are found wanting. Your salary is HATISS 07 STEP 02 (N …………) per annum. Taxation is by the Abia State taxation law. During the period of your service with the Federal Medical Centre Umuahia, if it is found that you made a false claim/declaration during the interview; your services will be terminated without notice. You will be governed by the rules and regulations of the Federal Medical Centre, Umuahia during your period of employment with the Federal Medical Centre. Your appointment takes effect from 1st June, 2002 and you are required to subject yourself to a Medical Examination conducted by staff Medical Doctor. If these conditions are acceptable to you please confirm in writing within 14 days from the date of this letter or regard your appointment as having lapsed. Mr J.O Amaizu Ag. Asst. Director of Admin. For: Medical Director. It is clear from the above content of the Claimant’s employment letter that he was employed by the Defendant. Although the letter is headed Federal Ministry of Health, there is nothing in the content of the letter suggesting that the employment was done by the Federal Ministry of Health. The letter emanated from the Defendant and it was signed by its Acting Assistant Director of Administration on behalf of the Medical Director. The letter also stated that the Claimant was employed into the services of the Defendant. It cannot be argued in good faith that the Claimant was employed by any other body other than the Defendant. Even the Defendant relied on Exhibit D2 but could not show any other letter where the Federal Ministry of Health employed the Claimant. In his written address, the Defendant’s counsel relied on the evidence of the Claimant during his cross examination where the Claimant said the confirmation of his employment and his promotion were approved by the Minister of Health, to argue that the Claimant was employed by the Ministry of Health. The Claimant’s confirmation letter and the promotion letter, Exhibits B and D, were letters from the Defendant and not by the Ministry of Health. The fact that the Federal Ministry of Health is the supervising Ministry of the Federal Medical Centre or the Ministry which approves the actions of the FMC is a different matter. That might explain the appearance of the name of the Ministry on the employment letter. But in cases of this nature where the court is to determine liability for wrongful termination of employment, the focus is usually the person or organization with whom the employee has a contract of service. In this case, in view of the Claimant’s employment letter, the Claimant had a contract of service with the Defendant. The employer of the Claimant, as I find in this case, is the Defendant. ISSUE TWO: After carefully analyzing relief 1 sought by the Claimant in this suit, it became clear to me that the Claimant’s case is that the termination of his employment or compulsory retirement from the Defendant’s employment on 29th August 2013 is unlawful, null and void. In the event relief 1 is successful, the Claimant sought from this court, as per his 2nd relief, an order to reinstate him to the employment. The evidence adduced by the Claimant in proof of his claims have been summarized earlier in this judgment. Where a Claimant is seeking a declaration that the termination of his appointment is a nullity or wrongful or not in accordance with the terms and condition of the contract of service, it is necessary for the Claimant to plead and prove the terms of the contract of employment and in what manner the said terms of the contract were breached by the employer. In UZONDU vs. U.B.N PLC (2008) All FWLR (Pt. 443) 1389 at 1440-1441, it was held that in an action for wrongful termination or dismissal, the employee must prove the following- i. That he was employed by the Defendant, ii. The terms and condition of his employment, iii. who can appoint and remove him, iv. The circumstances under which his appointment can be terminated, v. The procedure for termination of his appointment, vi. The manner in which the termination of his appointment breached the said terms and conditions of his employment. The terms of the contract of service are the foundation of any case where the issue of any unlawful or wrongful termination or dismissal of employment falls to be determined. The Claimant has the onus to produce the terms and condition of the employment before the court and then prove with cogent evidence in what manner the said terms and conditions of his employment were breached by the employer. It is not the duty of the employer to prove that the dismissal of the employee is in accordance with the terms of his contract of employment. To do so would amount to putting the cart before the horse. It is rather the primary duty of the employee, who asserts and who is seeking a declaratory relief, to first prove his assertion before the onus shifts to the employer to justify the dismissal. See KWARA STATE CIVIL SERVICE COMMISSION vs. ABIODUN (2009) All FWLR (Pt. 493) 1315; TEXACO NIG. PLC vs. KEHINDE (2002) FWLR (Pt. 94) 143 at 157; PETROLEUM TRAINING INSTITUTE vs. MATTHEW (2012) All FWLR (Pt. 623) 1949 at 1967. The requirement for the burden of proof on the employee was expressed in these words by the Supreme Court in ZIIDEEH vs. RIVERS STATE CIVIL SERVICE COMMISSION (2007) All FWLR (Pt. 354) 243 at 258:- “It has been firmly established that when an employee complains that his employment has been wrongfully terminated, he has the onus (a) to place before the court the terms of the contract of employment and (b) to prove in what manner the said terms were breached by the employer. The law is that it is not the duty of the employer as a defendant in an action brought by the employee to prove any of these facts” The point must be made here that whether the subject of the complaint is termination of employment or compulsory retirement as in this case or dismissal or suspension, the principle on the onus of proof placed on the employee is the same. Therefore, in this case that the Claimant has alleged and sought this court to declare that the termination of his employment or his compulsory retirement from employment is unlawful, null and void, the onus is on him to first place before the court the terms of his contract of employment and then prove in what manner the terms of contract of employment was breached in respect of the alleged compulsory retirement/termination of his employment. In other words, the Claimant is expected to relate his employment to a condition of service and then show to this court the way and manner his employment may be terminated under the condition of service and how the laid down procedure was not followed by the Defendant in the termination of his employment. The facts of the Claimant’s complaint in this suit about his compulsory retirement from the Defendant’s employment or termination of his employment is contained in paragraphs 8 to 15 of the statement of facts. For the purpose of emphasis, the facts pleaded in these paragraphs are reproduced hereunder: “8. The Claimant avers that the defendant upon allegations received against him as incorporated in an administrative letter and suspension thereto was suspended indefinitely without payment of salary. The claimant in his helpless and frenzied situation was maligned, humiliated and irresponsibly caricatured. The letter of suspension dated 22nd June 2010 is hereby pleaded. 9. The claimant avers that the defendant terminated and or compulsorily retired him via a letter dated the 29th August 2013. The said letter is hereby pleaded. 10. The Claimant aver that he wrote a letter of Appeal concerning his unrevealed predicament of sustaining monumental loss which piecemeally snowballed into the sum stated by the management of the Defendant. 11. The Claimant aver that he appealed to the Defendant for installment payment and had to dispose one of his joint family property in order to defray the said indebtedness, not stealing/embezzlement as has been erroneously made. One of such letters is dated 9/11/2010 the same is hereby pleaded. 12. The Claimant avers that he was compelled by supervening circumstances to further appeal dated 7th December, 2010.T The same is hereby pleaded 13. The Claimant avers that he was suspended by the Defendant without pay and made to refund the money allegedly misappropriated via a letter dated 21st June, 2010. The same is hereby pleaded. 14. The Claimant avers that he has started repaying the monumental loss to the management of the Defendant as agreed upon before he was sacked by the Defendant. The slip for these payments/refunds is hereby pleaded. 15. The Claimant avers that his administrative trial and judgment thereto by the defendant lacked the modicum of transparency, more so when he was muzzled by the defendant.” These facts were reproduced verbatim in the deposition of the Claimant as the evidence of the allegation of unlawful termination or retirement from the employment of the Defendant. The entire substance of the Claimant’s case against the Defendant is as he has stated in the paragraphs set out above. I have reviewed the facts of the Claimant case and the evidence adduced thereto but I find that he did not plead the condition of service. I cannot also find anywhere where he set out the terms of his employment nor how the terms have been breached by the Defendant. From the Claimant’s pleading and evidence, he merely alleged that his employment was terminated or that he was compulsorily retired and that “his administrative trial by the defendant lacked the modicum of transparency” and that “he was muzzled by the defendant”. Besides failing to tell this court how these allegations constitute a breach of the terms of the condition of service, the claimant also failed to give particulars of the alleged lack of transparency in the administrative trial or how he was “muzzled” by the Defendants. The Claimant merely made blanket allegations without substantiating them. It is a clear principle of law that the burden in this case rest on the Claimant and neither the court nor the Defendant can help the Claimant to establish his case. The Claimant’s counsel attempted to window dress the Claimant’s case in his final written address. The submission of the learned Counsel to the Claimants contains facts which were not pleaded nor given in evidence by the Claimant. It is the law that the address of counsel cannot take the place of pleading or evidence. See IBIKUNLE vs. LAWANI (2008) All FWLR (Pt. 398) 359. Therefore, Counsel’s attempt to develop the Claimant’s case in the final written address is of no use. I did examine the evidence adduced by DW1 in this case and it occurred to me that the Claimant may have had a good case to pursue against the Defendant in this case. Since the Claimant could not establish his case, the law does not permit me to decide this case on the Defendant’s evidence. What has worked against the Claimant’s case is the deficient, insubstantial and inelegant pleading and deposition filed on his behalf by his counsel. There were two other sister cases; NICN/OW/30/2013 and NICN/OW/31/2013; decided by this court on the 16th day of February 2016. The same counsel was involved for the Claimants. Those cases were affected by the same failure of adequate pleadings and necessary evidence and they met the same fate as this case is bound to head. But I have seen in this case, as well as those ones, germane issues which, if the Claimant’s case had been properly and adequately pleaded, would have directed the cases to a more favorable outcome. This court is however not a Father Christmas. Its duty is to decide claims brought before it on the strength of pleaded facts and evidence adduced in support. The result of the failure of the Claimant to establish the basic requirements placed on him in this case is that the Claimant has failed to prove his case. Consequently, his claims fail and the suit is accordingly dismissed. No order as to cost. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Judge