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<p class="MsoNormal" style="text-align:justify"><b><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family: "Times New Roman",serif">REPRESENTATION:<o:p></o:p></span></b></p> <p class="MsoNormal" style="text-align:justify"><b><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family: "Times New Roman",serif">I. Mafimisebi with him are T. Osayomi and Richard Olomoro for the claimant<o:p></o:p></span></b></p> <p class="MsoNormal" style="text-align:justify"><b><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family: "Times New Roman",serif">Ighodalo Imadibelo with him are Aifuwa Imadibelo and U. Egbon for the defendant<o:p></o:p></span></b></p> <p class="MsoNormal" align="center" style="margin-left:27.0pt;text-align:center; text-indent:-27.0pt"><b><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">RULING<o:p></o:p></span></b></p> <p class="MsoNormal"><span lang="EN-US" style="font-size:1.0pt;mso-bidi-font-size:14.0pt;font-family:"Times New Roman",serif"> </span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">The claimant filed a complaint before this court against the defendants on the 19<sup>th</sup>August, 2016 for the following reliefs:-<o:p></o:p></span></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-18.0pt; mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; mso-fareast-font-family:"Times New Roman"">a.<span style="font-stretch: normal; font-size: 7pt; line-height: normal; font-family: 'Times New Roman';"> </span></span><!--[endif]--><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">A declaration that claimant’s appointment as the director Health services of the 1<sup>st</sup> defendant continues as a full time appointment up to retiring age of 60 years in line with the provision of his letter of appointment dated the 1<sup>st</sup> of December, 2006.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-18.0pt; mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; mso-fareast-font-family:"Times New Roman"">b.<span style="font-stretch: normal; font-size: 7pt; line-height: normal; font-family: 'Times New Roman';"> </span></span><!--[endif]--><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">An order of this Honourable court setting aside the decision of the governing council of the 1<sup>st</sup> defendant of 31<sup>st</sup> January, 2013 wherein claimant is directed to disengage as director Health services of the 1<sup>st</sup> defendant in November, 2016 having occupied that office for ten years.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-18.0pt; mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; mso-fareast-font-family:"Times New Roman"">c.<span style="font-stretch: normal; font-size: 7pt; line-height: normal; font-family: 'Times New Roman';"> </span></span><!--[endif]--><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">An order of interlocutory injunction restraining the 1<sup>st</sup> and 2<sup>nd</sup> defendants their agents, privies or any person or persons acting for them from taking any further step or steps to disengage the claimant as director Health services of the 1<sup>st</sup> defendant pending the determination of this suit.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-18.0pt; mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; mso-fareast-font-family:"Times New Roman"">d.<span style="font-stretch: normal; font-size: 7pt; line-height: normal; font-family: 'Times New Roman';"> </span></span><!--[endif]--><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">And order of perpetual injunction restraining the 1<sup>st</sup> and 2<sup>nd</sup> defendants either by themselves or their agents, privies officers or by any person or persons or by any person howsoever from taking any step or further steps to disengage the claimant from the services of the 1<sup>st</sup>defendant as director Health services pending the expiration of his retirement age of 60 or 65yeras as the case may be.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">The claimants filed alongside his claim, statement of fact and other accompanying processes. The defendants/applicants in response filed their statement of defence and other accompanying processes together with a motion on notice on the 1<sup>st</sup> of November, 2016 praying the court for the following;<o:p></o:p></span></p> <p class="MsoListParagraphCxSpFirst" style="margin-left:54.0pt;mso-add-space: auto;text-align:justify;text-indent:-36.0pt;mso-list:l1 level1 lfo3"><!--[if !supportLists]--><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; mso-fareast-font-family:"Times New Roman"">i.<span style="font-stretch: normal; font-size: 7pt; line-height: normal; font-family: 'Times New Roman';"> </span></span><!--[endif]--><span lang="EN-US" style="font-size:14.0pt; line-height:115%;font-family:"Times New Roman",serif">An order striking out this suit for want of jurisdiction on the grounds stated in schedule ‘A’<o:p></o:p></span></p> <p class="MsoListParagraphCxSpLast" style="margin-left:54.0pt;mso-add-space:auto; text-align:justify;text-indent:-36.0pt;mso-list:l1 level1 lfo3"><!--[if !supportLists]--><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; mso-fareast-font-family:"Times New Roman"">ii.<span style="font-stretch: normal; font-size: 7pt; line-height: normal; font-family: 'Times New Roman';"> </span></span><!--[endif]--><span lang="EN-US" style="font-size:14.0pt; line-height:115%;font-family:"Times New Roman",serif">AND for such further order and other orders as this Honourable court may deem fit to make in the circumstances of this suit.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">The grounds upon which the objection is brought (Schedule A) are; <o:p></o:p></span></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-18.0pt; mso-list:l2 level1 lfo2"><!--[if !supportLists]--><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; mso-fareast-font-family:"Times New Roman"">1.<span style="font-stretch: normal; font-size: 7pt; line-height: normal; font-family: 'Times New Roman';"> </span></span><!--[endif]--><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">The action is statute-barred having been instituted three 3 months after the decision of the University Governing Council at its 100<sup>th</sup> meeting on the 31<sup>st</sup> day of January, 2013 to the effect that headship of all directorates should be limited to a 5 year tenure renewable once only after reviewing the tenureship for the directorates system proposed review policy pursuant to Section 2(a) of the public officers protection act 2004 cap p41<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-18.0pt; mso-list:l2 level1 lfo2"><!--[if !supportLists]--><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; mso-fareast-font-family:"Times New Roman"">2.<span style="font-stretch: normal; font-size: 7pt; line-height: normal; font-family: 'Times New Roman';"> </span></span><!--[endif]--><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">The directorate tenureship policy as it relates to the claimant as the director of health services in the university is nothing but an administrative, management and control policy of the University which is a Federal Government Agency. It is the Federal High Court of Nigeria that has the jurisdiction to entertain and determine any action of the university arising from its administrative, management and control policy in any Federal Government agency to the exclusion of the National Industrial court of Nigeria pursuant to Section 251(1) p of the Constitution of the Federal Republic of Nigeria 1999 as amended.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-18.0pt; mso-list:l2 level1 lfo2"><!--[if !supportLists]--><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; mso-fareast-font-family:"Times New Roman"">3.<span style="font-stretch: normal; font-size: 7pt; line-height: normal; font-family: 'Times New Roman';"> </span></span><!--[endif]--><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">There is no labour dispute whatsoever between the claimant and the University. The salary, allowances and other prerequisites of the office of the claimant are being paid by the University to the claimant till date.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-18.0pt; mso-list:l2 level1 lfo2"><!--[if !supportLists]--><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; mso-fareast-font-family:"Times New Roman"">4.<span style="font-stretch: normal; font-size: 7pt; line-height: normal; font-family: 'Times New Roman';"> </span></span><!--[endif]--><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">The suit is improperly constituted as proper parties are not before this Honourable court. the claimant/ respondent sought relief 28 (b) in his statement of facts dated 13<sup>th</sup> day of August, 2016 against the Governing Council of the 1<sup>st</sup>defendant university without joining it in this suit. The Governing council of the 1<sup>st</sup> defendant.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-18.0pt; mso-list:l2 level1 lfo2"><!--[if !supportLists]--><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif; mso-fareast-font-family:"Times New Roman"">5.<span style="font-stretch: normal; font-size: 7pt; line-height: normal; font-family: 'Times New Roman';"> </span></span><!--[endif]--><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">There is no reasonable cause of action disclosed against the defendants/ applicants in the claimant statement of fact.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">Filed alongside this notice of preliminary objection is a five paragraph affidavit deposed to by one Arunna Majeed a litigation clerk in the law firm of the defendant counsel. Also filed is a written address wherein counsel for the defendant/applicants raised a sole issue for the court’s determination;<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">Whether or not this Honorable court has jurisdiction to entertain the action of the claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">On this sole issue, it is counsel submission that courts are creature of statutes predicated on the Constitution and that no court can assume jurisdiction except it is statutorily endowed as jurisdiction, it cannot be implied nor conferred by the agreement of parties. He cited the case of <b>Gafar v Governor of Kwara State [2007] 4 NWLR (Pt. 1024) page 375 at 463. </b>Defendant counsel also submitted that for Section 2(a) of the Public Officers Protection Act to avail a party, it must be shown that the person against whom the action is commenced is a public officer and the act done by the person in respect of which the action was commenced must be an act done in pursuance or execution of any law or of any public duty or authority. He argued that if the above principle is applied to the instance case, there is no doubt that the claimant’s complaint in the main claim is against the decision of the Federal University of Technology, Akure and University Governing Council at its 100<sup>th</sup> Meeting on the 31<sup>st</sup> day of January, 2013 to the effect that headship of all Directorates should be limited to a 5 year tenure renewable once only after discussing the Tenureship for the Directorate System-Proposed Review Policy. Furthermore, he stated that the word ‘shall’ used in Section 2(a) of the Public Officers Protection Act denotes mandatoriness and leaves no room for discretion. They relied on the following cases: <b>Menakaya v. Menakaya [2001] 16 NWLR (Pt. 738) pg. 203; A.G. Bendel State v. A.G. of the Federation [1981] 10 SC pg 1 at pg 5; Ogbonna v. A.G. Imo State [1992] 1 NWLR (Pt. 220) pg 647 at pg 696.</b> The defence counsel gave the definition of cause of action by court as the combination of facts and circumstances giving rise to the right to file a claim in court for remedy and that it includes every material fact which has to be proved to entitle the plaintiff to succeed. He continued that it is trite that it is the totality of the averments in the statement of claim that determines the accrual of cause of action, the case of <b>Omomeji v. Kolawole [2008] 14 NWLR (Pt. 1106) pg. 180 at pg. 205 </b>was relied on.<b><o:p></o:p></b></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">Counsel posited that in the instant case, paragraphs 18, 19 and 28 of the claimant’s statement of facts are relevant in determining when the cause of action accrued to him if at all. It averred that the Public Officers Protection Act is a limitation law that prescribes the period for which an action, prosecution or other proceedings can be instituted against any person, which is three months next after the act. That in this case, the cause of action accrued to the claimant on the 31<sup>st</sup> of January, 2013 being the date when the University Governing Council made its decision and he received that letter from the office of the Registrar which is marked as Exhibit ‘D’.Counsel stated that the originating process, which is the claimant’s writ of summons and statement of facts was issued 19<sup>th</sup> August, 2016 and this being commenced outside the three months period limited for it by Section 2(a) of the Public Officer Protection Act Cap. P. 41 LFN, the suit is thus statute-barred. He cited the case of <b>Victor v. FUTA [2015] 4 NWLR (Pt. 1448) pg. 1 at pgs 52 – 53</b> and therefore urged the court to uphold this objection.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">On the issue of jurisdiction counsel submitted that it is the claimant’s claim as endorsed on the writ of summons and statement of facts that determines the jurisdiction of court. It submitted in another words that it is the subject matter that determines the jurisdiction of the court and that the statement of facts being purely administrative management decision of the University, it is the Federal High court that has exclusive jurisdiction in determining it as it is the court that has jurisdiction in matters pertaining to administration, management, policy decisions, executive decision by Federal Government Agencies. He cited <b>Section 251(1)(P) and (R) of the Constitution of the Federal Republic of Nigeria, 1999 (</b>as amended) and relied on the cases of <b>Onuorah v. KRPC Ltd [2005] 6 NWLR (Pt. 921) pg. 393; S.C.C. Nig Ltd v. Sedi [2013] 1 NWLR (Pt. 1335) Pg 230 at pg 244; Ifejuana v. Ifejuana [2010] 9 NWLR (Pt. 671) pg. 107</b>. Continuing he posited that the 1<sup>st</sup> Defendant University has power to carry out its administrative act under the Federal University of Technology Act, 2004 and the Regulations governing the Conditions of Service dated 27<sup>th</sup> day of September, 2007 which the claimant is challenging vide his statement of facts to disengage or redeploy him as the Director of Health Services in the University with effect from 31<sup>st</sup> day of November, 2016 having served beyond a second term of five years by the Reviewed Directors Tenureship of the 1<sup>st</sup> Defendant University Governing Council. It is counsel’s submission that the claimant’s letter of appointment was made pursuant to the University’s statutes which make the redeployment binding on him and that the redeployment is not an industrial dispute but an internal administrative action of the University and that <b>Section 254(C)1 </b>of the Constitution of Federal Republic of Nigeria, 1999 (as amended) which expanded the jurisdiction of the National Industrial Court did not oust the jurisdiction of the Federal High Court to entertain this suit. Counsel cited the Supreme Court case of <b>Oloruntoba-Ojo v. Dopamu [2008] 7 NWLR (Pt. 1085) pg. 1 at pgs 32, 33, 36 and 37 as per Muhammad, JSC.<o:p></o:p></b></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">The defendant submitted that as the grouse of claimant is the challenge of the Tenure Policy of the Federal Government of Nigeria given effect by the 1<sup>st</sup> Defendant’s Governing Council on the 31<sup>st</sup> day of January, 2013. He stated that it is trite that the courts do not pass “value judgment†on an issue of policy as in this case. The case of <b>A.G. Lagos State v. Dosunmu [1989] 3 NWLR (Pt. 111) pg 552 at pgs 574 – 575 as per Oputa JSC </b>was referred to. Furthermore, it averred that the claimant’s appointment letter (Exhibit ‘B’) specifically at paragraph 2 is subject to the University Law, Statutes and Ordinances which includes the modification made by Exhibits ‘A’ and ‘B’ on the Tenureship for the Directorate System and also that Exhibit ‘C’ is not static or predictable but subject to University Statutes, Regulation and Ordinances since it can be modified from time to time. It further based its submission on the authority of <b>L.S.D.P v. Foreign Finance Corp (1987) 1 NWLR (Pt. 50) pg. 413 and Aqua Ltd v. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) pg 622 at pg 630. </b>He submitted further that by virtue of Section 6 of the Federal Universities Act, 2004, the University Council shall have general control over the policy of the University including the issuance of Exhibits ‘A’ and ‘B’ and that the University Regulations is a statute of the University under Section 10 and 11 of the Federal Universities of Technology Act, 2004.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">It is counsel’s argument that the claimant sought a relief against the Governing Council of the 1<sup>st</sup> defendant without joining same. It submitted that the relief in the said paragraph is against the 1<sup>st</sup> Defendant Governing Council created under <b>Section 2(1)b of the Federal Universities of Technology Act 2004 Cap F23</b> as Exhibits ‘C’ and ‘D’ emanated from the Council and therefore that the Governing Council is not only a necessary party but a desirable party for effectual and complete determination of the issues<b>. </b>That under Section 36 of the Constitution supra no person should be condemned unheard. It buttressed this with the<b> case of Olawoye v. Jimoh [2013] 13 NWLR (Pt. 1371) pg. 362 at pg 386. </b>In furtherance of his argument, defendant counsel affirmed that the law is that where a claimant fails to join the persons against who he is seeking a relief, the action in respect thereof would be struck out on the ground that it is improperly constituted, it again relied on <b>Obla v. Otagoyi [2007] 5 NWLR (Pt. 1027) pg. 304 and Ayorinde v. Oni [2000] 3 NWLR (Pt. 649) pg 348 </b>and urged the court to so hold and strike out this suit on the ground that it is improperly constituted.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">In response the claimant filed a seven paragraph counter affidavit deposed to by one Chinyere Mbanaso, a secretary in the law firm of claimant’s counsel. Accompanying this counter affidavit is a written address dated 18<sup>th</sup> of November, 2016 where claimant counsel adopted the lone issue formulated by the defendants which is whether or not this Honourable Court has the jurisdiction to entertain the action of the claimant. Counsel, relying on the position of law echoed by the Supreme Court in <b>Alguokhian v. State [2003] FWLR (Pt. 146) 822 at 833</b> submitted that courts are more interested in doing substantial justice to parties rather than by resulting to technical justice because technical justice is not justice according to law but justice built on technical rules which no longer has any place in judicial discourse. It further cited the case of <b>Senator Iyiola Omisore &Anor v. Ogbeni Rauf Adesoji Aregbesola & 2 Ors (2015) SC 204/2015. </b>He therefore submitted that the objection being raised by the defendants dwell in the realm of technicality attempting to challenge the form of his claims before this court and not the substance of the case. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">He submitted that it is the argument of the defendants that by virtue of Section 2 (a) of the Public Officers Protection Act, the suit of the claimant is statute barred since he instituted the suit 3 months after the cause of action accrued. It is Claimant counsel submission that the cause of action in this suit accrued on the 21<sup>st</sup> of July, 2016 when the 1<sup>st</sup> defendant placed an advert for vacancies for non-teaching positions and on items 2 thereof was the office of the claimant. He stated that he wrote the 2<sup>nd</sup> defendant in respect of the circular from the office of the Head of Service of the Federation to the effect that Tenure System be suspended in relation to his office and that by another internal memo dated 4<sup>th</sup> of August, 2016 directed to him wherein the Registrar of the 1<sup>st</sup> defendant retreated that his request for retraction of the advert placed by the University in the Punch Newspapers on 21<sup>st</sup> of July, 2016 is misconceived, misplaced and therefore cannot be acceded to and that he is to disengage as Director Health Service of the 1<sup>st</sup> defendant come 31<sup>st</sup> November, 2016. Claimant is of the view that the issue of Tenure is a recurrent decimal at the Statutory Meeting of 1<sup>st</sup> defendant as the issue was deliberated upon at the 87<sup>th</sup> statutory meeting and that it was then decided that:<o:p></o:p></span></p> <p class="MsoNormal" style="margin-left: 72pt; text-align: justify; text-indent: -36pt;"><b><i><span lang="EN-US" style="font-size:14.0pt; font-family:"Times New Roman",serif">(a) Some of the Directors of the University are career officers who by their instruments of appointments had been duly appointed into the offices till their retirement age;<o:p></o:p></span></i></b></p> <p class="MsoNormal" style="margin-left: 72pt; text-align: justify; text-indent: -36pt;"><b><i><span lang="EN-US" style="font-size:14.0pt; font-family:"Times New Roman",serif">(b) In view of (a) above, the University could not tamper with the contractual agreement midstream and stand the test of litigation therefrom;<o:p></o:p></span></i></b></p> <p class="MsoNormal" style="margin-left: 72pt; text-align: justify; text-indent: -36pt;"><b><i><span lang="EN-US" style="font-size:14.0pt; font-family:"Times New Roman",serif">(c) The University could determine the appointment of unproductive, stale and incompetent Directors procedurally through the provisions of the University conditions of service for that category of staff.<o:p></o:p></span></i></b></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">That whereas at the 100<sup>th</sup> statutory meeting of the 1<sup>st</sup> defendant, another decision was taken and that the summary is that the issue of introduction of tenure system in the 1<sup>st</sup> defendant University has never been laid to rest. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">Counsel submitted that the claimant approached the court on the 19<sup>th</sup> August, 2016 immediately the 1<sup>st</sup> defendant replied him and communicated such reply dated the 4<sup>th</sup> of August, 2016 on the 8<sup>th</sup> of August, 2016, he therefore stated that he was within time when he filed this suit and as such it will be out of place to argue that his action is statute-barred.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">As regards the competence of this court to adjudicate on this case, It is counsel’s submission that it is the claim in the statement of claim that determines whether the court before which the action is instituted is clothed with jurisdiction or not. It relied on the following cases; <b>Ogara v. Asadu [2014] All FWLR (Pt. 754 pg 54 at 85 </b>and <b>Osoh v. Unity Bank Plc [2013] All FWLR (Pt. 690) 1245 at 1271.</b> Taking his 1<sup>st</sup> claim for instance, <i>“A declaration that claimant’s appointment as the Director Health Services of the 1<sup>st</sup> defendant continues as a full-time appointment up to retiring age of 60 years in line with the provision of his letter of appointment dated the 1<sup>st</sup> of December, 2006â€</i>, submitted that the reliefs before the court borders on his employment and as such the National Industrial Court of Nigeria is clothed with requisite jurisdiction to settle any employment dispute arising therefrom. He also relied on <b>Section 254C(1) </b>of the Constitution of Federal Republic of Nigeria, 1999<b> (</b>as amended).<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">Counsel relying on the case of <b>Daily Times of Nigeria Plc v. D.S.V Ltd [2014] All FWLR (Pt. 713) 1978 at 2002,</b> submitted that a reasonable cause of action is the same as saying a reasonable cause of complaint, a civil right or obligation for determination by a court of law. He then posited that claimant’s action discloses a reasonable cause of action.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">It is counsel’s argument that with respect to the issue of joinder that the Governing Council of the 1<sup>st</sup> defendant is not a juristic person that can sue and be sued. That Section 1(2) of the University of Technology Act provides that each University shall be a body corporate with perpetual succession and a common seal and may sue or be sued in its corporate name. That the Vice Chancellor in relation to the 1<sup>st</sup> defendant takes precedent before all other members of the University in accordance with <b>Section 8 of the Federal University of Technology Act</b> and that he has the general function in addition to any other function conferred on him by this Act or otherwise of directing the activities of University and shall be the Chief Executive and Academic officer of the University and Ex-Officio Chairman of the Senate. He therefore stated that the 1<sup>st</sup> and 2<sup>nd</sup> defendants are compulsory and necessary parties with whom this suit is properly constituted and that at best, the governing Council of the University is a nominal party without whom the case of the claimant can be effectively determined and enforced. He then urged the court to dismiss the preliminary objection of the defendants with costs.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">On the 1<sup>st</sup> of February, 2017 the claimant filed a 13 paragraph further and better affidavit. Also on the 9<sup>th</sup> of February, 2017 claimant filed an additional 7 paragraph further and better affidavit. The defendant also filed a 13 paragraph further and better affidavit in response to the claimant’s further and better affidavit.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">The defendant the 13<sup>th</sup> of February, 2017 replied on points of law to claimant’s written address and stated that with regards to claimant counsel submission that the cause of action accrued on 21<sup>st</sup> July, 2016, defendant counsel submitted that the claimant missed the point because the period of limitation in any limitation statute is determined by looking at the writ of summons and the statement of claim which gave rise to the cause of action and by comparing that date with the date on which the writ of summons or originating summons was filed. That if the time on the writ of summons is beyond the period allowed by the Limitation Law, the action is statute-barred. He supported his submission by the authority in <b>Elabanjo v. Dawodu [2006] 15 NWLR (Pt. 1001) pg 76 at pgs 123 – 124. </b>Continuing, he submitted that the claimant is bound by the case put forward in his writ of summons and the reliefs and that there is no ambiguity on the fact that the cause of action arose on the 31<sup>st</sup> day of January, 2013. This was supported by <b>Commissioner for Works, Benue State v. Devcom Ltd [1988] 3 NWLR (Pt. 83) pg 407 at pg 420. </b>He posited that the claimant was officially written a Memo dated 31<sup>st</sup> day of January, 2016 that he would disengage as Director of Health Services on the 31<sup>st</sup> of November, 2016, this being the main cause of action and that the advertisement in Punch dated 21<sup>st</sup> July, 2016 and the Internal Memo dated 4<sup>th</sup> August, 2016 wherein it was maintained that the claimant must disengage on 31<sup>st</sup> of November, 2016 are accessory facts and it is trite that the court cannot adjudicate over the ancillary claims if it has no jurisdiction to entertain the main claim contained in Relief 2 and if the ancillary claim will inevitably involve a discussion of the main claim. <i>Accessorius Sequitur naturam Sui Principalis. </i>An accessory follows the nature of the principal. <b>Tukur v. Govt of Gongola State [1989] 4 NWLR (Pt. 117) pg 517 at pgs 567 – 569.<o:p></o:p></b></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">Further submission is that where a claimant’s main claim is statute-barred, any accessory claim is also statute-barred. <b>Nwaogwugwu v. President F.R.N [2007] 6 NWLR (Pt. 1030) pg 237 at pg 275. </b>He urged the court to discountenance all submissions by the claimant on accessory facts in the above paragraphs.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">Counsel submitted that the reliance of the claimant on the authority of <b>Daily Times of Nigeria Plc v. D.S.V Ltd (supra)</b> on what cause of action means is unhelpful to him as his “Redeployment’ or Disengagement’ from the Director of Health Services of the University while still a staff of the Health Centre and the University cannot be a dispute in respect of which a court of law is entitled to invoke its judicial powers or a civil right or obligation for determination by a court of law. He placed reliance on the case of <b>Toduggoronno v. Gotom [2002] 4 NWLR (Pt. 757) pg 453 at pgs 491, 494 and 495.</b> In furtherance of his argument, counsel submitted that in a matter on all fours with this case on the disengagement of an employee of Federal University, Akure from Director of Academic Planning to Head of Management, Information Unit, predicated on the same 100<sup>th</sup> Statutory Meeting of the University Governing Council held on 31<sup>st</sup> day of January, 2013 on Tenureship for the Directorate System, this court held that mere disengagement cannot give rise to a valid cause of action he cited the case of <b>Mrs A.O. Adebayo v. Vice Chancellor, Federal University of Technology, Akure & Anor – Suit No. NICN/AK/28/2013 </b>delivered by Hon. Justice Ubaka. Defendant counsel then submitted that mere transfer of the claimant is not a competent claim for this court and that the court will be overburdened if it is given jurisdiction over all sorts of disputes arising from employment matters. He therefore urged to allow its application and strike out this matter for want of jurisdiction.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">I have given a careful consideration of the processes filed by parties, the defendants motion on notice, submissions and authority cited by counsel to both parties, it is in my calm view that the issue that will succinctly determine the crux of the application is, whether or not this suit is statute barred and therefore, divest this court of its jurisdiction;<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">The defendants in this suit argued that the claims of the claimant as disclosed in the General Form of Complaint is statute barred by virtue of the Public officers Protection Act, LFN, 2004 having filed his claim outside the requisite period of three months. It is defendants contention that the claimant’s cause of action accrued on the 31<sup>st</sup> of January, 2013 when by its meeting of the governing council of the 1<sup>st</sup> defendant 100<sup>th</sup> statutory meeting held on the 31<sup>st</sup> of January, 2013 when it intimated the claimant that by 31<sup>st</sup> of November, 2016 he is expected to disengage from his office. The claimant contended that his cause of action arose on the 21<sup>st</sup> of July, 2016 when the 1<sup>st</sup> defendant placed an advert for vacancies for non-teaching positions and on items 2 thereof was the office of the claimant. To the claimant he argued that he is within limit as prescribed by Section 2 (a) of the Public Officer Protection Act as on the 19<sup>th</sup> of August, 2016 he approached the court to seek redress. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">It is trite that jurisdiction gives life or otherwise to a suit. The issue of jurisdiction forms the basis upon which a court can entertain a suit before it. The question of jurisdiction goes into the root of a case as it is the pillar upon which any given case stands. Jurisdiction is the limit imposed by statute on the power of a validly constituted court to hear and determine issues between persons seeking to avail themselves of its process, by reference to the subject matter of the issues or to the persons between whom the issues are founded or to the kind of relief sought. See <b>Senator Abubakar SaddiqYar’adua v Senator Abdu Umar Yandoma [2015] 4 NWLR (P.t 1448) P. 124@160, Paras G-H; A.G. Kwara State & Anor v. Adeyemo & ORS [2016] LPELR-41147SC; Mr. M.O Oke &Ors v Osun State Government &Ors Suit no NICN/AK/03/2013 Ruling delivered on the 27<sup>th</sup> of March, 2017.<o:p></o:p></b></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">In determining the nature of the relationship between parties to a suit, the competence of the suit and the jurisdiction of the court to hear and determine the case, the court can only rely on the originating processes of the claimant. In explicit terms the writ of summons and statement of claim/facts as in this suit, alleging when the wrong complained of was committed which gave the claimant a cause of complaint, and by comparing that date with the date on which the writ of summons was filed will help to determine the exact date the cause of action accrued. See the cases of <b>Obiuweubi v. C.B.N. (2011) ALL FWLR (Pt. 321) p.208;</b></span><span lang="EN-US" style="font-family:"Verdana",sans-serif;color:#000099"> </span><b><span lang="EN-US" style="font-size:14.0pt; line-height:115%;font-family:"Times New Roman",serif">Sifax Nigeria Limited &Ors v Migfo Nigeria Limited &Anor [2015] LPELR 24655(CA); Jembewon v Kosoko & Ors [2010] LPELR 8970 CA.<o:p></o:p></span></b></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">The next appropriate question would be what then is a cause of action? A cause of action as defined in plethora case law authorities, is a set of facts which establish or give rise to the right to sue and or the factual situation which gives a party the right to judicial relief. The cause of action in a suit incorporates every fact which would sustain a party’s right to succeed in a given case. Hence, a cause of action includes every act or omission on the part of the defendant which gives the claimant the cause for his complaints and that the facts pleaded must be facts which will establish the cause of action. <b>See the case of Abubakar v B.O & A.P Ltd [2007] 18 NWLR (1066) 319. SC; Imperial Homes Mortgage Bank v D-Var Consulting Ltd [2016] LPELR – 40319 CA</b>.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">Now does the claimant statement of facts reveal any cause of action against the defendants? A keen perusal of the claimant statement of facts reveals vide paragraph 22 and I reproduce same that;<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><b><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family: "Times New Roman",serif">“Claimant avers that on the 21<sup>st</sup> of July, 2016, the office of the registrar of the 1<sup>st</sup> defendant published vacancies for Non-teaching positions and on item No. 2 was the office of the Director, Health Services, and his own office which is not vacant. Claimant shall rely on a copy of the Punch Newspaper of Thursday July 21<sup>st</sup>, 2016 at trial. <o:p></o:p></span></b></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">It is obvious from the above averment in the claimant's statement of facts that the claimants cause of action contrary to the arguments of the defendants accrued on the 21<sup>st</sup> of July, 2016, the date his position was declared vacant. That was the act of the defendant which constituted /remained his source of complaint. The argument of the defendant is untenable as the meeting of the governing council of the 1<sup>st</sup> defendant 100<sup>th</sup> statutory meeting held on the 31<sup>st</sup> of January, 2013 merely intimated the claimant on the new policy agreed upon with regards to tenureship of director, it also informed him stating that on the 31<sup>st</sup> of November, 2016 his tenure as a Director would elapse. The letter dated 31<sup>st</sup> of January, 2013 did not arouse any complaint by the claimant or any cause of action neither did it confer on the claimant a right to sue. However the publication dated 21<sup>st</sup> of July, 2016 which published the office of the claimant as a vacant office even while he is still in office vested on the claimant the very right to sue in this instance. A comparison of the date which the cause of action accrued that is 21<sup>st</sup> of July, 2016 and the date claimant instituted this action that is on the 19<sup>th</sup> of August, 2016 a period of thirty days is still within the time frame for which a litigant may sue a Public Officer/Office as per Section 2(a) of the Public Officers Protection Act and thus, claimant's case is not statute barred. I so find and hold.<b><o:p></o:p></b></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">It is defendants’ contention that the directorate tenureship policy as it relates to the claimant as the Director of health services in the University is nothing but an administrative, management and control policy of the University which is a Federal Government Agency. They contend that it is the Federal High Court of Nigeria that has the jurisdiction to entertain and determine any action of the University arising from its administrative, management and control policy in any Federal Government agency to the exclusion of the National Industrial court of Nigeria pursuant to Section 251(1) p of the Constitution of the Federal Republic of Nigeria 1999 as amended. That also, there is no labour dispute whatsoever between the claimant and the University. The salary, allowances and other perquisites of the office of the claimant are being paid by the University to the claimant till date. The claimant posited that the reliefs before the court borders on his employment and as such the National Industrial Court of Nigeria is clothed with requisite jurisdiction to settle any employment dispute arising therefrom. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">Having stated earlier that in determining the competence of a suit the court can only rely on the originating processes of the claimant that is the writ of summons and statement of claim/facts as in this suit, a keen glance of the claimants’ claims discloses that the main crux of his claim borders on his employment as the Director of health services of the defendant which according to him will be unjustly disengaged without the declaration or injunction from the court. Moreso his statement of fact discloses vides paragraphs 18,19, 20, 21 and 22, which I reproduce for ease of reference thus;<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><b><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family: "Times New Roman",serif">“18. Claimant avers that at the 100<sup>th</sup> statutory meeting of the governing council of the 1<sup>st</sup> defendant held on the 31<sup>st</sup> of January, 2013, a decision was taken contrary to the one taken at the 87<sup>th</sup> statutory council meeting of the 1<sup>st</sup> defendant to the effect that he is required to disengage as the Director of Health services of the 1<sup>st</sup> defendant on the 31<sup>st</sup> of November, 2016….<o:p></o:p></span></b></p> <p class="MsoNormal" style="text-align:justify"><b><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family: "Times New Roman",serif">19. Claimant avers that the decision of the Governing council of the 1<sup>st</sup> defendant to the effect that his appointment as Director became tenured and that he should disengage as such at the clock of 10 years as Director was made in the spirit of the August 26, 2009 circular of the Head of Service of the Federation. Claimant....<o:p></o:p></span></b></p> <p class="MsoNormal" style="text-align:justify"><b><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family: "Times New Roman",serif">20. claimant avers that another circular dated 20<sup>th</sup> of June, 2016, Ref No HCSF/428/S.1/139 issued by the Head of Civil Service of the Federation captioned suspension of the tenure policy in the Federal Civil Service directed that the tenure policy in the Federal Civil Service is suspended with immediate effect…<o:p></o:p></span></b></p> <p class="MsoNormal" style="text-align:justify"><b><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family: "Times New Roman",serif">21. Claimant avers that a publication to the effect that Buhari ends Eight year tenure for Permanent Sec, Directors, which is impari material with the contents of the circular referred to in paragraph 20 above, was published on page 7 of the Nation Tuesday June, 21<sup>st</sup> 2016.<o:p></o:p></span></b></p> <p class="MsoNormal" style="text-align:justify"><b><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family: "Times New Roman",serif">22. Claimant avers that on the 21<sup>st</sup> of July, 2016, the office of the Registrar of the 1<sup>st</sup> defendant published vacancies for Non-teaching positions and on item No. 2 was the office of the Director, Health Services, and his own office which is not vacant….â€<o:p></o:p></span></b></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">Now, by the provisions of Section 254C (1)(a) of the 1999 Constitution as amended, the National Industrial Court is empowered excluding all other courts in this clime, in civil causes and matters to adjudicate on matters related to or disputes arising from or connected with “labour, employment, trade unions, industrial relations, conditions of service…..â€. It is without paradventure that by the statement of facts filed by the claimant he is seeking a declaration of the court to stop or restrain the defendants from disengaging his employment as the Director of Health services of the 1<sup>st</sup> defendant. This court is thus the right court to seek redress. By virtue of the 1999 Constitution as amended, specifically Section 254C (1) this court is the only court in this clime that is clothed with jurisdiction in respect of the subject matter of this suit. To hold otherwise as argued by the defendants is to turn the law upside down, and that will definitely occasion injustice. The claimant's complaint as evinced on record is that the defendants seek to tamper with his position in the 1st defendant's employ. That is clearly a subject matter for the adjudication of this court. I, placing heavy reliance on the above cited Section of the 1999 Constitution as amended find that this court has power to adjudicate on this case. I so hold.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">It is the contention of the defendant that there is no reasonable cause of action disclosed against the defendants/applicants in the claimant statement of fact. The claimant on the other hand contended that his claims as stated in his writ of summon and statement of fact disclosed a reasonable cause of action against the defendants.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">It is trite law that a cause of action is constituted by an aggregate which the law recognizes as giving a claimant a substantive right to make a claim. It is a factual circumstance on which the claimants rely to make his claim capable of being enforced against the defendant. See the case of <b>Mr Ebere Onyekachi Aloysisus v. Diamond Bank Plc [2015] 58 NLLR (Pt. 199)92. Owodunni v. Registered Trustee of C.C.C. [2000] 6 S.C. (Pt. III) 60; (2000) 10 NWLR (Pt. 675) 315 at 365. </b>It is also a long settled position of the law that</span><span lang="EN-US" style="font-size:14.0pt;line-height:115%; font-family:"Times New Roman",serif;mso-bidi-font-family:"Times New Roman"; mso-bidi-theme-font:minor-bidi;mso-bidi-font-style:italic"> a cause of action arises the moment a wrong is done to the plaintiff by the defendants; and the wrong which is the basis of a dispute represents a factual situation which entitles the plaintiff to seek a remedy in a Court of law by way of enforcement. I thus find that the </span><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">claimant has by his claims as reproduced supra in this ruling shown that he has a cause of complaint for which he is seeking reliefs against the defendants. See paragraphs 18, 19, 20, 21 and 22 of the claimant's statement of facts filed in this suit. I so hold<b><o:p></o:p></b></span></p> <p class="MsoNormal" style="text-align:justify"><span lang="EN-US" style="font-size:14.0pt;line-height:115%;font-family:"Times New Roman",serif">With regards to the issue of not having the proper parties before the court as raised by the defendants; The claimant vide paragraph 28(b) seeks an order against the University Governing council and yet failed to join them as a party. It is the law that courts are more interested in doing substantial justice to parties rather than dwelling on technicalities to delay the cause of justice because technical justice is not justice according to law but justice built on methodological rules which is no longer fashionable in our justice system. The Governing council is a faction under the shield of the 1<sup>st</sup> defendant it does not have a separate and distinct personality from the 1<sup>st</sup> defendant as they are one and the same. I so find and hold. <o:p></o:p></span></p> <p class="Style" style="text-align:justify;line-height:115%"><span class="apple-style-span"><span lang="EN-US" style="font-size:14.0pt;line-height: 115%">It is obvious from all stated above that this suit is competent before this court as the claimant has fulfilled all the conditions precedent to the institution of his case as enunciated by the apex court in <b>Madukolu v. Nkemdilim,(1962)NSCC,374</b>. It is on this premise that I find that the claimant has a right to invoke the jurisdiction of this court to entertain this suit. Consequent upon which I find that the notice of preliminary objection filed by the defendants is misconceived, it is thus discountenanced and accordingly dismissed with cost of N20,000 awarded against the defendants.<o:p></o:p></span></span></p> <p class="Style" style="text-align:justify;line-height:115%"><span class="apple-style-span"><span lang="EN-US" style="font-size:14.0pt;line-height: 115%"> </span></span></p> <p class="Style" style="text-align:justify;line-height:115%"><span class="apple-style-span"><span lang="EN-US" style="font-size:14.0pt;line-height: 115%">The case shall proceed to trial. <o:p></o:p></span></span></p> <p class="Style" style="text-align:justify;line-height:115%"><span class="apple-style-span"><span lang="EN-US" style="font-size:14.0pt;line-height: 115%"> </span></span></p> <p class="Style" style="text-align:justify;line-height:115%"><span class="apple-style-span"><span lang="EN-US" style="font-size:14.0pt;line-height: 115%">Ruling is accordingly entered.<o:p></o:p></span></span></p> <p class="Style" style="text-align:justify;line-height:115%"><span class="apple-style-span"><span lang="EN-US" style="font-size:14.0pt;line-height: 115%"> </span></span></p> <p class="Style" align="center" style="text-align:center;line-height:115%"><b><span lang="EN-US" style="font-size:14.0pt; line-height:115%"> </span></b></p> <p class="Style" align="center" style="text-align:center;line-height:115%"><b><span lang="EN-US" style="font-size:14.0pt; line-height:115%">HON JUSTICE O.O OYEWUMI<o:p></o:p></span></b></p> <p class="Style" align="center" style="text-align:center;line-height:115%"><b><span lang="EN-US" style="font-size:14.0pt; line-height:115%">PRESIDING JUDGE</span></b><span lang="EN-US" style="font-size: 14.0pt;line-height:115%"><o:p></o:p></span></p>