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E. U. JOHN for the claimant A. S. ESSIEN for the defendant JUDGEMENT The Claimant instituted this action via a Complaint with the accompanying frontloaded documents filed on 16th August, 2014 against the defendants jointly and severally for the following reliefs: A DECLARATION that the instrument and/or act of setting up the Independent Investigation Committee by the Management Committee headed by the 2nd defendant for the investigation of the claimant, being an employee of the 1st defendant respecting matters of misappropriation, misapplication and mismanagement of funds belonging to the 1st defendant is ultra-vires the Management Committee and in contravention of the Bye-Laws of Uniuyo Academic Staff Multi-Purpose Co-operative Society Limited and therefore void ab initio. A DECLARATION that the investigation of the claimant as an employee of the 1st defendant for misappropriation, misapplication and mismanagement of funds belonging to the 1st defendant headed by the 2nd defendant through the instrumentality of an Independent Investigation Committee, a body not recognized by the Bye-Laws of the 1st defendant is ultra-vires the Management Committee and in contravention of the Bye-Laws of Uniuyo Academic Staff Multi-Purpose Co-operative Society Limited and therefore void ab initio. A DECLARATION that the consideration by the 1st and 2nd defendants of issues arising from the query by the 2nd defendant purporting to be done for and on behalf of the Management Committee of the 1st defendant, particularly the query dated July, 27, 2013 against the claimant on misappropriation, misapplication and mismanagement of funds belonging to the 1st defendant having not been reported to the 1st defendant through the Council of Inspection is ultra-vires the Management Committee headed by the 2nd defendant and in contravention of the principles of natural justice and the provisions of the Bye-Laws of Uniuyo Academic Staff Multi-Purpose Co-operative Society Limited and therefore void ab initio. A DECLARATION that the presentation, consideration and conclusions at the 1st General Meeting of Thursday 23rd January, 2014 particularly as contained in the written address of the 2nd defendant against the claimant as an employee of the 1st defendant on issues of misappropriation, misapplication and mismanagement of funds belonging to the 1st defendant by the Management Committee headed by the 2nd defendant arising from the independent investigation Committee at the behest of the 2nd defendant are ultra-vires the Management Committee and contravenes the Bye-Laws of the 1st defendant and therefore void ab initio. A DECLARATION that the arrest, detention and investigation of the claimant as an employee of the 1st defendant regarding financial misappropriation, misapplication and mismanagement of funds belonging to the 1st defendant and conduct of the affairs of the 1st defendant by the claimant as the Business Manager and an employee of the 1st defendant through the instrumentality of the Economic and Financial Crimes Commission (EFCC) Port Harcourt at the behest of the 2nd defendant and the Management Committee having not complied with the internal procedure and provisions of the Bye-Laws of the 1st defendant. A DECLARATION that the purported report of the Council of Inspection dated 21st January, 2014 and adoption of the report of the Independent Investigation Committee in breach of the Bye-Laws of the Uniuyo Academic Staff Multi-Purpose Co-operative Society Limited having been put together after the query, suspension and various sub-human treatments and violation of the human dignity of the claimant by the 2nd defendant and the Management Committee of the 1st defendant. A DECLARATION that the retroactive termination of the appointment of the claimant by the 1st defendant on March 26, 2014 is unlawful and in conflict with the extant letter of suspension of August 07, 2013 and amounts to a denial of the rights and entitlements of the claimant under her contract of employment and a breach of the Bye-Laws of the 1st defendant. PERPETUAL INJUNCTION retraining the 1st and 2nd defendants, their agents, privies, servants, co-operators and collaborators from molesting, harassing and continuing the irregular and unlawful arrest and investigation of the claimant on the behest of the defendants for financial misappropriation, misapplication and mismanagement of funds belonging to the 1st defendant through the instrumentality of the Economic and Financial Crimes Commission (EFCC) or any other law enforcement body or bodies in that regard. #150 Million being debt due and owing to the claimant by the 1st defendant and damages for unlawful and wrongful arrest, detention and violation of claimant’s right to human dignity, wrongful detention of claimant’s property and wrongful termination of her appointment with the 1st defendant. The claimant’s case on the record is that the claimant was an employee /Business Manager of the 1st defendant, and the Secretary of the Management / Investment Committee of the defendants saddled with the responsibility of recording/producing minutes of Management / Investment Committee meeting as well as carry out other instructions of the meetings. The 1st defendant is the limited liability cooperative society and the 2nd defendant is the President of the 1st defendant and Chairman of the Management / Investment Committee. Claimant resumed duty as a pioneer staff of the Business Development Unit of the 1st defendant following the inauguration of the new Management Committee, her earlier proposal was adopted during the Management Committee meeting of the 1st defendant held on 17th June, 2013 with the 1st defendant taking over her snacks bar and the equipment. Claimant averred that while awaiting the response of the Management Committee there was a change of regime in May, 2013 during the Annual General Meeting and a new Management Committee was put in place with the 2nd defendant as the President. Claimant received a letter of suspension from her office as Business Manager on 7th August, 2013 and was informed that an Independent Investigative Committee had been set up in line with Article 14, Sec. 10 of the Bye-Laws of the 1st defendant and that she was not allowed to enter or visit the 1st defendant’s office/shop effective the day of the suspension. On November 1st, 2013, claimant wrote to the Council of Inspection pleading for intervention and that on 21st January, 2014, the Secretary, Council of Inspection forwarded a copy of a report purporting to be a report of Council of Inspection on the financial misappropriation, misapplication and mismanagement of fund belonging to the 1st defendant by the claimant. By reason of the various acts of the defendants, the claimant averred that she has suffered grave injury and loss and that the same is still continuing. STATEMENT OF DEFENCE dated 15th December, 2014 and filed on 16th December, 2014. The defendants averred that the report of Council of Inspection never commended the claimant at all, and that claimant never recorded any success whatsoever in any area of operation. Furthermore, that contrary to the job schedule, description and specification, the claimant went outside the scope of her employment or authority without the defendants’ consent and set up her personal business using the funds, premises/office and facilities of the 1st defendant for her benefit without making any profit or returns to the 1st defendant at all. And that upon the assumption of office by the new Management Committee headed by the 2nd defendant, they discovered numerous financial impropriety, misappropriation and mismanagement of funds of the 1st defendant by the claimant, of which claimant made part refunds of the money into the 1st defendant’s bank account. Furthermore, that when the claimant failed or refused to refund the remaining money, a query dated 22/7/2013 was issued to her. Defendants dissatisfied with claimant’s reply set up an ad hoc committee to look into the matter. The claimant was placed on suspension in line with the policy of the 1st defendant and that they never received any letter from the claimant personally nor did the 2nd defendant or any of their staff verbally or otherwise abuse or assault or embarrass the claimant nor breached her right on 7/10/2013 or on any other date at all. The defendants stated that there was no such staff by the name of Ndifrekeabasi E. Essien neither did the Vice President order the warehouse attendant nor anybody else to break open any cupboard allegedly containing the personal effects or money of the claimant in the 1st defendant’s premises on 7/10/2013 or any other date at all. Defendants admitted engaging another staff to continue in its business. They however denied owing the claimant the sum of #2,912,438,000.00 (Two Million, Nine Hundred and Twelve Thousand, Four Hundred and Thirty Eight Naira) only or any other amount at all. And are counterclaiming for the sum of #11,813,176.05k (Eleven Million, Eight Hundred and Thirteen Thousand, One Hundred and Seventy-six Naira and five Kobo plus 20% interest and #5,000,000.00 (Five Million Naira) only as general damages. At the trial the claimant testified as CW adopted hers statement on oath and tendered 15 other exhibits. She testified that she was employed to manage the affairs of the Cooperative as a Business manager and that the shop was only one of the Business ventures She further testified that she and two other worked with the defendants and that most of the requisitions were made in writing and the need to disburse funds (withdrawal of funds by members) was also made in writing and that it was the 1st defendants policy that all money belonging to the 1st defendant was paid into the account. She further testified that the money she gave Godson Umara was from her own pocket and that she applied for reimbursement because it was around the time of her suspension. She also testified that she was invited and appeared both before the investigation committee set up by the 1st defendant and the Council of Inspectors and that she is currently standing trial for the criminal offence. In response to the question whether the defendant had the authority to discipline her and investigate her conduct and she answered in the affirmative. The claimant also called John Ufut who testified as CW2 and tendered his statement on oath which was marked exhibit CW17 and further testified under cross examination that he signed C17 in his lawyers chambers and that although he did not work directly with the claimant her report would be received by him and he was a member of the cooperative and was also initially a member of the Council of Inspectors, which was not set up by the Management of the cooperative, on this point he further testified that he had left the council/committee by the time the committee had prepared its final report due to a conflict of interest. He also expressed surprise that the claimant had admitted in her Exhibit C6 that he had the cooperative’s cash in his possession. He also testified that the 1st defendant had no power to set up an independent investigation Committee to investigate the claimant. The defendants called one witness Mfoniso Umorem, a Professor of Mathematics University Uyo, who testified as DW, adopted his written statement on oath which was marked Exhibit D1 and went on to tender 6 other exhibits. Under cross examination DW testified that he was the Chairman of the Council of Inspectors of the 1st defendant up until 2013 and it as by the by-laws the Council’s function to put up a state of affairs report on the finances of the society to the Management and to bring to the attention of the Management any mismanagement of the society’s resources. He further testified that for the three years he was chairman of the council of Inspectors the State of Affairs Report was rendered only once and that was to an Annual General Meeting, testifying that it was the claimant’s responsibility to bring up the agenda of the AGM. He further testified that although Exhibit D4 at page 5 did not include an Independent Committee, the Management Committee are empowered by the said Exhibit D4 to set up any committee they require At the end of trial parties were directed to file their final written addresses in line with the rules of this court. The DEFENDANTS’ FINAL WRITTEN ADDRESS was filed on 26th September, 2016. Wherein the defendant raised the following ISSUES Whether the processes filed by the claimant in this suit, particularly the Written Statement on Oath of the claimant and the claimant’s witness are competent in order to vest this Honorable Court with the requisite jurisdiction to hear and determine the claimant’s case. Whether the defendants (particularly the 1st defendant) has power under its Bye-Laws to set up the Committee called an Independent Investigating Committee in the special circumstance of this case. If the answer to issue 2 above is in the affirmation, whether the claimant is entitled to all or any of the reliefs sought in this suit. The defendants (particularly the 1st defendant) is entitled to the Counter Claim sought in this suit. ON ISSUE 1 Whether the processes filed by the claimant in this suit, particularly the Written Statement on Oath of the claimant and the claimant’s witness are competent in order to vest this Honorable Court with the requisite jurisdiction to hear and determine the claimant’s case. Learned Counsel for the defendant A. S. Essien Esq submitted that it is the swearing that makes a Written Statement on Oath and not otherwise. MARAYA PLASTIC INDUSTRIES LTD. v. INLAND BANK (NIG.) PLC (2002) 7 NWLR (PT. 765) 109 @ 120. He submitted that the stamp of the court does not confer the attributes of Oaths and the statements themselves are not oath in so far as they do not contain any act of swearing. LAWAL-OSULA v. U.B.A. PLC (2003) 3 NWLR (PT. 813) 388; CHUKWUMA v. NWOYE (2011) ALL FWLR (PT. 553) 1942 @ 1970-1972; OBUMNEKE v. SLYVESTER (2010) ALL FWLR (PT. 506) 1945 @ 1959, PARAS. G-H’ P. 1960, PARAS. A-D; SEC. 13 of the OATHS ACT. Defendant Counsel submitted that the failure to comply with the above legal requirement is not a mere form, irregularity or technicality at all; but goes to the substance of the document and liable to be struck out. N.N.B. PLC v. I.B.W.A. ENTERPRISES LTD. (1998) 6 NWLR (PT. 554) 446; OSULA v. UBA PLC (2003) 5 NWLR (PT. 813) 376. He submitted that processes were invalid and in breach of both statutory and procedural requirements of filing Written Statement on Oath, hence, that the legal effect of invalid court’s process is striking out. OHONYA v. OVIOSU (2015) ALL FWLR (PT. 808) 759. It is counsel’s submission that the defect cannot be corrected or re-sworn by resort to the provision of Sections 113 and 114 of the Evidence Act, 2011. That to grant the amendment would amount to an affront to and a violation of the provision of the Oaths Act because Evidence Act regulates evidence but not Oaths. More so as there is a distinction between an Affidavit and the Witness Written Statement on Oath. CHUKWUMA v. NWOYE (Supra) RATIO 7; LAMBERT v. OKUJAGU (2015) ALL FWLR (PT. 808) N652 @ 666, PARAS. E-A. ON ISSUE 2 Whether the defendants (particularly the 1st defendant) has power under its Bye-Laws to set up the Committee called an Independent Investigating Committee in the special circumstance of this case. Answering this in the affirmative, counsel submitted that by Article 8 (1) (ii), the claimant, who was the Business Manager/Secretary served as the Secretary of the Management Committee and that the act or conduct of the claimant as a staff of the 1st defendant was an act of indiscipline which the Management Committee has powers to deal with under Article 8 (2) (xiii) and Article 14 (10) of Exhibit D2. ON ISSUE 3 If the answer to issue 2 above is in the affirmation, whether the claimant is entitled to all or any of the reliefs sought in this suit. Counsel to the defendants submitted that the declaratory reliefs sought by the claimant cannot succeed and should be dismissed with punitive cost as the declaratory relief(s) is an invitation to the court to make legal pronouncement on the legal position of proven state of affairs. FAWEHINMI v. IGP (2000) FWLR (PT. 12) 2015 @ 2025 HELD 23. He argued that for the court to be in a position to make any such legal pronouncement there must be credible facts or proven factual state of affairs placed before the court for consideration. DR. OLADIPO MAJA v. MRS. COSTA SAMOURIS (2007) 7 NWLR (PT. 765) 78 @ 100-101. It is defendants’ counsel’s contention that the claimant’s reliefs endorsed on both the Complaint and the Statement of Facts at paragraph 32 (a), (b), (c), (d), (e), (f) and (g) are all declaratory claims of which the claimant is expected to succeed on the strength of her own case but not on the weakness or admission of the defendant at all. GE INTERNATIONAL OPERATIONS NIG. LTD. v. Q OIL & GAS SERVICES LTD. (2016) ALL FWLR (PT. 838) 842 @ 864. He submitted that a declaratory relief is a unilateral request to a court to determine a legal status or ownership of a thing and declares the right of the parties. ENEKWE v. I.M.B. NIG. LTD. (2007) ALL FWLR (PT. 349) 1053; C.B.N. v. AMAO & 2 ORS. (2010) 5-7 SC (PT. 1) @ 31; FRIDAY v. THE GOVERNOR OF ONDO STATE & ANOR. (2013) ALL FWLR (PT. 706) 507 @ 539; CHUKWUMAH v. SHELL PETROLEUM (1993) 4 NWLR (PT. 289) 512 @ 553. Referring the Court to claimant’s relief E, counsel submitted that the defendants have power to make criminal report or complaint to Police or any other relevant law enforcement authority including the EFCC. SEC. 59 (1) of the CRIMINAL PROCEDURE ACT, LFN; GUSAU v. UMEZURIKE (2012) ALL FWLR (PT. 655) 291 @ 313, PARAS. E-F. Defendant Counsel submitted that an injunctive order is an equitable remedy of this Honorable Court which must be exercised judiciously and judicially but which the claimant cannot enjoy because claimant’s hands are not clean. Furthermore, that equitable order of court cannot be made to aid and or in favour of a party guilty of a reprehensible conduct. HARRY v. IDONOBOYE-OBU (2015) ALL FWLR (PT. 808) 66 @ 650, PARAS. C-D. ON ISSUE 4 The defendants (particularly the 1st defendant) is entitled to the Counter Claim sought in this suit. Counsel to the defendants submitted that a counter claim is an independent claim within a suit. OLALOYE v. ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, OSUN STATE (2015) ALL FWLR (PT. 774) 37 SC; AKINNAWO v. ADEWOYE (2015) ALL FWLR (PT. 787) 627 CA. He submitted further that ordinarily, the counter-claimant has a burden to prove his counter-claim where there is a defence and issues are joined with the counter-claim. But where there is no defence to the counter-claim, and or there is failure to file any defence thereto, that amount to admission by the claimant. And that what is admitted needs no proof and the burden of proof placed on the defendants/counter-claimants is removed by the admission. SEC. 123 of the EVIDENCE ACT, 2011; BENDLE PILGRIM WELFARE BOARD v. IRAWO (1995) 1 NWLR (PT. 369). The FINAL WRITTEN ADDRESS OF THE CLAIMANT dated and filed on 6th October, 2016. Wherein the claimant formulated the following ISSUES Whether or not the defendants by the Bye-Laws of the 1st defendant, have the powers to set up the Independent Investigation Committee, a body not therein recognized by reference or implication as against the clear provisions of Article 14 Rule 9 of the said Bye-Laws and if the defendants have no such powers whether the said Committee was not constituted contrary to Article 14 Rule 9 of the said Bye-Laws and consequently incompetent and its activities void respecting the investigation of financial misappropriation, misapplication and mismanagement of funds belonging to the 1st defendant. Whether the adoption of the report of the Independent Investigation Committee by the Council of Inspection in its report dated 21st January, 2014 is not contrary to the procedure prescribed by the Bye-Laws of the 1st defendant and to that extent void and ineffective in the determination of the allegation of financial misappropriation, misapplication and mismanagement of funds belonging to the 1st defendant by the claimant. Whether the presentation of the report of the Independent Investigation Committee to and the conclusions at the 1st General Meeting of the 1st defendant by the 2nd defendant on the issues of misappropriation, misapplication and mismanagement of funds belonging to the 1st defendant by the claimant are not ultra vires the powers of the defendants acting jointly or severally. Whether the Court can determine the issue of alleged acts of criminality of the claimant by the defendants given the above issues. ON ISSUE 1 Whether or not the defendants by the Bye-Laws of the 1st defendant, have the powers to set up the Independent Investigation Committee, a body not therein recognized by reference of implication as against the clear provisions of Article 14 Rule 9 of the said Bye-Laws and if the defendants have no such powers whether the said Committee was not constituted contrary to Article 14 Rule 9 of the said Bye-Laws and consequently incompetent and its activities void respecting the investigation of financial misappropriation, misapplication and mismanagement of funds belonging to the 1st defendant. Responding in the negative, Claimant’s counsel submitted that express mention of the Committees set out in Article 8 of the Bye-Laws of the 1st defendant excludes the Independent Investigation Committee and that the legal consequence is that the work of the Committee that is not provided for in the Bye-Laws is illegal, ineffective, null and void. ATTORNEY GENERAL OF LAGOS STATE v. ATTORNEY GENERAL OF THE FEDERATION & ORS. (2014) 9 NWLR 217; OGBUYINNYA v. OKUDO (1979) 6-7 SC 32; PEOPLES’ DEMOCRATIC PARTY v. INDEPENDENT ELECTORAL COMMISSION (1999) 11 NWLR (PT. 626) 200; BUHARI v. YUSUF (2003) 14 NWLR (PT. 84) 466; UDOH v. ORTHOPAEDIC HOSPITAL MANGAGEMENT BOARD (1993) 7 NWLR (PT. 304) 139; HALSBURY’S LAWS OF ENGLAND 4TH EDITION PARA. 867. He argued that by Article 14 Rule 9 (i) & (ii) of the Bye-Laws, any case of misapplication or mismanagement of the Society’s funds shall be reported to the Society through investigated and reported to the General Meeting by the Council of Inspection and the investigation shall be concluded within 2 months. Claimant’s Counsel further submitted that placing the activities of the defendants against the deliberate template of the Bye-Laws, the defendants have not complied with the Bye-Laws regarding the matter of investigation. ON ISSUE 2 Whether the adoption of the report of the Independent Investigation Committee by the Council of Inspection in its report dated 21st January, 2014 is not contrary to the procedure prescribed by the Bye-Laws of the 1st defendant and to that extent void and ineffective in the determination of the allegation of financial misappropriation, misapplication and mismanagement of funds belonging to the 1st defendant by the claimant. Claimant’s Counsel submitted that the adoption by the Council of Inspection of the report of the Independent Investigation Committee in its report dated 21st January, 2016 is contrary to the provisions of the Bye-Laws as the only body mandated by the Bye-Laws to investigate and present to the General meeting of the Society issues relating to finance and financial mismanagement of the Society’s resources is the Council of Inspection. Articles 8 Rule 4 (ii) and 14 Rule 9 (iii) of the Bye-Laws. He urged the Court to hold that having regard to the earlier submission establishing prejudicial decisions by the Management Committee against the claimant, it will amount to a travesty of justice to allow the process other than that which is approved by the Bye-Laws to stand. ON ISSUE 3 Whether the presentation of the report of the Independent Investigation Committee to and the conclusions at the 1st General Meeting of the 1st defendant by the 2nd defendant on the issues of misappropriation, misapplication and mismanagement of funds belonging to the 1st defendant by the claimant are not ultra vires the powers of the defendants acting jointly or severally. Claimant’s Counsel submitted that the presentation of the issue relating to financial mismanagement by the 2nd defendant on 23rd January, 2014 was in breach of Articles 8 Rule 4 (ii) and 14 Rule 9 (iii) of the Bye-Laws, consequently, it cannot stand. He urged the Court to hold that the decision of the 1st defendant arose from the prejudicial acts of the 2nd defendant on the portal of the Management Committee. ON ISSUE 4 Whether the Court can determine the issue of alleged acts of criminality of the claimant by the defendants given the above issues. Counsel submitted that the Court is precluded from enquiring into the issue of alleged criminality of the acts of the claimant as this is a threshold issue and that by the provisions of the enabling law setting up the National Industrial Court especially the Third Alteration Act, the Court is precluded from enquiry into the acts of crime. Rather, that the Court should confine itself to the issue whether or not the termination of the employment of claimant was in accordance with the process laid down in the Bye-Laws of the 1st defendant. He urged the Court to hold that the defendants having failed to abide by their own laws and regulation which failure led to the injury of wrongful arrest and detention of the claimant by the EFCC for which the claimant has suffered harm, injury and indignity of her person, the claimant is entitled to damages as a natural result of that breach. E.P. IDERIMA v. RIVERS STATE CIVIL SERVICE COMMISSION (2005) 16 NWLR (PT. 951) 378. DEFENDANTS’ COUNSEL REJOINDER ON POINT OF LAW dated 10th October, 2016 and filed on 11th October, 2016. Counsel contended that issue No. 4 formulated by claimant’s counsel does not arise from the pleading, the claimant’s claim or the defendants’ counter-claim and urged the Court to strike out issue No. 4 as it is lifeless and this Court cannot sit over lifeless, hypothetical or academic issue as contained therein. He submitted that neither the claimant nor the defendants submitted any issue or question of “alleged acts of criminality of the claimant†as this Honorable Court is not sitting over this matter as a criminal court nor is there any criminal charge filed against or by the claimant in this court at all. Secondly, in response to claimant’s issue No. 2, counsel submitted that claimant’s counsel’s Final Written Address is not a substitute for evidence or pleaded facts. That throughout the pleading and evidence of parties, there was neither pleaded facts nor evidence to the effect that Council of Inspection merely only adopted the report of Independent Investigation Committee in its report; and that such material evidence did not come from the claimant or her witness and cannot at this stage come from the address of her counsel. Thirdly, counsel argued that claimant’s issue No. 3 as canvassed by her counsel is lacking in substance, material particulars and evidence as there is no evidence upon which this argument can be deduced at all and therefore, should be disregarded completely because counsel’s address should be a summary application of evidence and the laws but not to supply additional evidence. Defence Counsel pointed out that the claimant and the defendants were in a contract of master-servant relationship and that the claimant has not pleaded nor led evidence on what were the conditions or terms of her employment that were breached. That there is no claim relating to the employment rights or entitlements of the claimant before this Honorable Court. Thus, that the argument of counsel is misconceived, erroneous and misleading. He submitted further that this case is academic, frivolous, baseless and abuse of judicial process with the aim to harass, intimidate and spite the defendants. He urged that Court to dismiss this case with punitive cost. On the 13th October 2016 the parties adopted their respective written addresses and adumbrated their respective positions accordingly. THE COURT’S DECISION I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether the claimant is entitled to the relief sought in this suit, Before I delve in to the merit of this case it is necessary to address contention made by the defendants as regard the testimony of the CW2 under cross examination that he signed his witness statement on oath C17 in his lawyer’s chambers. It is worthy to note that the court of Appeal in UDEAGHA Vs. OMERGARA [2010] LPELR 3856 CA had clarified this point that there was a distinction between an affidavit and a witness statement on oath where the witness later comes to court to adopt he said statement under oath, in that case the Court held “Let us not forget that statements of witness which are adopted during oral evidence on oath are different from mere affidavit evidence which stand on their own without oral backup and which are not subjected to cross examination. It is such affidavit evidence which do not meet the requirements of Section 90 of the evidence Act that are intrinsically inadmissibleâ€. What that means is that the witness statement on oath is not an affidavit and seeing as it is adopted under oath any defect in the deposition process prior to the adoption would automatically be cured by the adoption I hold. Back to the merit of this case The claimants are seeking the following reliefs:- A DECLARATION that the instrument and/or act of setting up the Independent Investigation Committee by the Management Committee headed by the 2nd defendant for the investigation of the claimant, being an employee of the 1st defendant respecting matters of misappropriation, misapplication and mismanagement of funds belonging to the 1st defendant is ultra-vires the Management Committee and in contravention of the Bye-Laws of Uniuyo Academic Staff Multi-Purpose Co-operative Society Limited and therefore void ab initio. A DECLARATION that the investigation of the claimant as an employee of the 1st defendant for misappropriation, misapplication and mismanagement of funds belonging to the 1st defendant headed by the 2nd defendant through the instrumentality of an Independent Investigation Committee, a body not recognized by the Bye-Laws of the 1st defendant is ultra-vires the Management Committee and in contravention of the Bye-Laws of Uniuyo Academic Staff Multi-Purpose Co-operative Society Limited and therefore void ab initio. A DECLARATION that the consideration by the 1st and 2nd defendants of issues arising from the query by the 2nd defendant purporting to be done for and on behalf of the Management Committee of the 1st defendant, particularly the query dated July, 27, 2013 against the claimant on misappropriation, misapplication and mismanagement of funds belonging to the 1st defendant having not been reported to the 1st defendant through the Council of Inspection is ultra-vires the Management Committee headed by the 2nd defendant and in contravention of the principles of natural justice and the provisions of the Bye-Laws of Uniuyo Academic Staff Multi-Purpose Co-operative Society Limited and therefore void ab initio. A DECLARATION that the presentation, consideration and conclusions at the 1st General Meeting of Thursday 23rd January, 2014 particularly as contained in the written address of the 2nd defendant against the claimant as an employee of the 1st defendant on issues of misappropriation, misapplication and mismanagement of funds belonging to the 1st defendant by the Management Committee headed by the 2nd defendant arising from the independent investigation Committee at the behest of the 2nd defendant are ultra-vires the Management Committee and contravenes the Bye-Laws of the 1st defendant and therefore void ab initio. A DECLARATION that the arrest, detention and investigation of the claimant as an employee of the 1st defendant regarding financial misappropriation, misapplication and mismanagement of funds belonging to the 1st defendant and conduct of the affairs of the 1st defendant by the claimant as the Business Manager and an employee of the 1st defendant through the instrumentality of the Economic and Financial Crimes Commission (EFCC) Port Harcourt at the behest of the 2nd defendant and the Management Committee having not complied with the internal procedure and provisions of the Bye-Laws of the 1st defendant. A DECLARATION that the purported report of the Council of Inspection dated 21st January, 2014 and adoption of the report of the Independent Investigation Committee in breach of the Bye-Laws of the Uniuyo Academic Staff Multi-Purpose Co-operative Society Limited having been put together after the query, suspension and various sub-human treatments and violation of the human dignity of the claimant by the 2nd defendant and the Management Committee of the 1st defendant. A DECLARATION that the retroactive termination of the appointment of the claimant by the 1st defendant on March 26, 2014 is unlawful and in conflict with the extant letter of suspension of August 07, 2013 and amounts to a denial of the rights and entitlements of the claimant under her contract of employment and a breach of the Bye-Laws of the 1st defendant. PERPETUAL INJUNCTION restraining the 1st and 2nd defendants, their agents, privies, servants, co-operators and collaborators from molesting, harassing and continuing the irregular and unlawful arrest and investigation of the claimant on the behest of the defendants for financial misappropriation, misapplication and mismanagement of funds belonging to the 1st defendant through the instrumentality of the Economic and Financial Crimes Commission (EFCC) or any other law enforcement body or bodies in that regard. #150 Million being debt due and owing to the claimant by the 1st defendant and damages for unlawful and wrongful arrest, detention and violation of claimant’s right to human dignity, wrongful detention of claimant’s property and wrongful termination of her appointment with the 1st defendant. Reliefs 1-7 are for declaratory orders pertaining to the propriety of the action of the 1st and 2nd defendant in respect to acts which fall under the purview of the 1st defendant s employer of the claimant whilst reliefs 8 is for a restraining order and relief 9 is for damages. The position of the law as regards declaratory relief is that “a party seeking a declaratory relief must place before the court credible and sufficient evidence to entitle him to the declaratory relief. A court cannot grant a declaratory relief without credible sufficient evidence. Such a relief cannot be granted without oral evidence by the plaintiff even where the defendant expressly admitted same in the pleading, the relief being equitable in nature. See S.P.D.C.N. LTD. v. AJUWA (2015) 14 NWLR (PT. 1480) C.A. 403 @ 431 and KWAJAFFA v. B.O.N. LTD (2004) 13 NWLR (PT. 889) 146. Also in the Court of Appeal case BAYTIDE (NIG.) LTD v. ADERINOKUN (2014) 4 NWLR (PT. 1396) 164 C.A. @ 182 it was held that party seeking declaratory relief has a duty to adduce cogent and credible evidence to justify the exercise of the discretion. See also TITILOYE OLUPO (1991) 7 NWLR (PT. 205) 519; ODUNZE v. NWOSU (2007) 13 NWLR (PT. 1050) 1. The claimant in making her case tender exhibit C2 reproduced below: UNIUYO ACADEMIC STAFF MULTIPURPOSE COOPERATIVE SOCUEITY (UMCOS) October 20, 2010 C/O Dr. O. J. Ifut Animal Science Department University of Uyo Uyo Dear Emem-ofem O. Ifut, OFFER OF EMPLOYMENT I refer to your application dated September 13, 2010 for the post of Business Manager. I am delighted to inform you that following your satisfactory performance at the interview on October 4, 2010 for the said post, you are hereby offered the job of Business Manager with the UNIUYO Academic Staff Multi-purpose Co-operative Society with effect from November 1, 2010. As Business Manager, you shall be expected to initiate and manage the approved business ventures of the Co-operative Society and act as Secretary to the Management Committee, as well as the General Assembly of the Co-operative Society, in addition to other functions as outlined in the bye-laws of the Co-operative Society. You shall be paid a consolidated monthly salary of thirty-five thousand naira (N35,000.00) only subject to review based on performance. You shall be on probation for a period of six months during which the appointment may be determined without notice if you are found wanting. Thereafter, either party may severe relations upon a notice of one month or forfeiture of salary for the same period in lieu of notice. If the terms of this offer are acceptable to you please endorse the duplicate copy of this letter and return same to the under-signed not later than one week from the date of this letter. Please accept the -assurances of the highest regards of the Board of Trustees of UAMCOS. Yours truly, (Signed) Ashong C. Ashong Chairman In determining the nature of a claimants appointment the courts have held that recourse should be had to the contents of the letter of appointment FEDERAL MEDICAL CENTRE IDO EKITI & ORS. Vs. OMIDIORA KOLAWOLE O. [2011] LPELR 4149 CA The Supreme Court in the case of LONGE Vs. FBN LTS [2010] LPELR 1793 SC held that “….there are three categories of employment Purely Master and Servant relationship Servants who hold their office at the pleasure of the employer Employment with statutory flavour….†By the case of CBN V. IGWILLO (2012) SC 1 NILR (PG 1 SC) at 20 G-H, there are now 3 categories of contracts of employments namely: (a) Contracts regarded as purely master and servant relationships. (b) Contracts where a servant is said to hold an office at the pleasure of the employer and (c) Contracts where the employment is regulated or governed by statute, often referred to as having statutory flavour. I find that any employment outside category (b) and (c) above is governed by the terms under which this parties voluntarily agreed to be master and servant. OLANIYA V. UNIVERSITY OF LAGOS (1985) 2 NWLR (PT.9) 599 The claimant and defendants tendered the By Laws of the 1st defendant Exhibit C3 /D2 which in Article 10 (7) provides for the post of Business Manager /Secretary. It is not in dispute that this document governs the claimants employment relationship. In law the court lacks the power to look outside the contents of an agreement between the parties C.B.N V. ARCHIBONG (2001) 10 NWLR (PT.721) 492N @ 495, KATO V. C.B.N (1996) 6 NWLR (PT.607) at 390; (1999) 5 SC; WESTERN NIGERIA DEVELOPMENT LTD. V. ABIMBOLA (1996) 1 ALL NLR 159. And from Exhibits C2 and C3/D2 I find that the claimant was employed by the defendant in an employment relationship known as the employee / employer relationship also referred to as Master servant. The claimant’s grouse is that the defendants did not comply with the provisions of the by laws governing her employment both in procedure and in the manner of her termination. Now Sasegbon’s in his book Laws of Nigeria, An Encyclopedia of Nigerian Law and Practice, First edition, Volume 16.paragraph 233- on Determination of master and servant relationship. Stated that “in other cases governed only by, agreement of the parties and not by statute as in the present case, removal by way of termination of appointment or dismissal will be in the form agreed to between the parties in the agreement binding on themâ€. Also in C.B.N V. IGWILLO [2007] NWLR (Pt. 1054) at 393 it was held that “in terminating a contract of employment….., what should be considered by the court are the terms and conditions of claimant’s employment as contained in internal conditions of Service vis-à -vis the letter of terminationâ€. Exhibit C3 provides in Article 14 (7) and (9) as follows: (7) Disputes: Any disputes arising from or concerning the Society and its Officials, members or past members and its paid employees shall be referred to the Board of Trustees for arbitration; where this is unsuccessful, the matter shall be referred to the Director of Cooperatives for settlement in line with Cooperative Laws. (9) Misappropriation of Funds: (i) Any case of misapplication and mismanagement of the Society’s funds and other property reported to the Society through the Council of Inspection shall be investigated by the Council of Inspection and reported to the General Meeting for appropriate action. (ii) Where the person(s) against whom the allegation is levelled is/are officer(s) or employee(s) of the Society, such person(s) shall be placed on suspension during the investigation which should be concluded within two months. (iii) Any proven case of financial impropriety shall be referred to the University of Uyo Authority and appropriate law enforcement - body or bodies for necessary action. (10) Cases of indiscipline shall be handled by the Management Committee which shall set up appropriate committee to treat the matter and make recommendation to it, and the General Meeting if need be. From the foregoing, it means, the procedure to be followed by the 1st defendant is that report of misappropriation of fund are to be reported to the 1st defendant through the Council of Inspection, this report is then investigated by the Council of Inspection who then reports to the General meeting; sub (i). In the case of officers or employees sub (ii) provides that such person are to be placed on suspension during the two month investigation, while sub (iii) provides that proven cases of financial impropriety are reported to the University of Uyo Authority and to the law enforcement agencies By 10 of the same Article 14 sets out that cases of indiscipline are to be handled by the Management Committee which shall set up appropriate committee to treat and report to the General Meeting. While (7) states that disputes between the 1st defendant and officials, past members or as in this case its paid employees shall be referred to the Board of trustees for Arbitration and if this fails the dispute is further referred to the Director of Cooperatives for settlement. The claimant also tendered Exhibit C 14 Letter of termination (reproduced below) ; UNIUYO ACADEMIC STAFF MULTIPURPOSE COOPERATIVE SOCUEITY (UMCOS) March 26, 2014 Miss Emem-ofem O. Ifut C/O Dr. O. J. Ifut Animal Science Department University of Uyo Uyo Dear Madam, TERMINATION OF APPOINTMENT AS THE BUSINESS MANAGER On behalf of the Board of Trustees (BOT), the Management Committee, and the entire members of the UNIUYO Academic Staff Multipurpose Cooperative Society Limited (UAMCOS), I write to convey to you the termination of your appointment as the Business Manager of the afore-stated Cooperative Society May I inform you that the decision to terminate your appointment was taken during the General Meeting of UAMCOS which was held on Thursday, January 23, 2014 to the effect that your appointment there-in be terminated with effect from August 07, 2013. By this letter, your appointment with UAMCOS is terminated and you are expected to return and refund all items of the Society at your disposal to the President of the Society with immediate effect Yours faithfully, Having the appropriate procedure to be followed by the 1st defendant by their by law it is now necessary to look at the procedure they did not in fact follow in order to make a determination with respect to the claimants case. The case before the court is that the new Management Committee headed by the 2nd defendant discovered various incidences of financial impropriety, misappropriation and mismanagement of funds of the 1st defendant by the claimant, and the claimant made part refunds of the money into the 1st defendant’s bank account. At a point the claimant failed or refused to further refund the remaining money, then a query dated 22/7/2013Exhibit C5-C5(4) was issued to her. To which she replied ExhibitC6-C6(33) the Defendants dissatisfied with claimant’s reply set up an ad hoc committee to look into the matter, while the claimant was placed on suspension in line with the policy of the 1st defendant by Exhibit C8 dated 7th August 2013, the defendants maintain that they never received any letter from the claimant. The claimant tendered four other letters Exhibit C8 dated 7th October 2013, Exhibit C9-C9(3) dated 1st November 2013, Exhibit C10- C10(3) also dated 1st November 2013 and Exhibit C11 dated 27th November 2013. I find that with the exception of C8, which was titled resumption of duty, in which the claimant indicates that the two month suspension had ended and she was awaiting further instruction which was endorsed as received by one Ndifrekeabasi E. Essien for the President, the other three exhibit bear no indication of ever having been delivered or received by any one at all. There is nothing on exhibit D6 or D7 to indicate that they had ever been issued to the claimant. This court has held that a lack of evidence of acknowledgment on a document or notice, by way of endorsement, receipt or stamp is indication that the said document or notice was not presented/ delivered to the address or person intended or any person at all. See cases of unreported SUIT NO: NICN/CA/104/2013 AKPAN LAWRENCE IDORENYIN Vs. SKYE BANK PLC delivered on the 18th February 2016 and unreported SUIT NO: NICN/CA/14/2014 ENIANG NDEM Vs MR. NDOMA AKPET & 3 ORS delivered on the 24th February 2016. Also in AGBAJE Vs. FASHOLA [2008] 6 NWLR (Pt. 1082) Where it was held that where there is an allegation that a document was sent to a person and that person denies receipt of such a document proof of receipt by that person can be established by (a) dispatch book indicating the receipt, or (b) evidence of dispatch by registered post or evidence of witnesses, credible enough that the person was served with the document, following NLEWEDIM Vs. UDUMA [1995] 6 NWLR 309 at p394 para B.. I find that Exhibit C9-C9(3), Exhibit C10- C10(3) and Exhibit C11 being undelivered are of no probative value in this matter and no weight shall be attached to them, the defendants had in t heir pleading denied the existence of Ndifrekeabasi E. Essien the claimant in failing to rebut this averment or substantiate the delivery of the said Exhibit C8, the said Exhibit C8 also cannot be relied upon as having been received by the defendant. The ad hoc committee set up by the defendants referred to as the Independent Investigation Committee from Exhibit C12 made their report upon which the Management Committee made their own observations C13 and both the report of the ad hoc Independent Investigation Committee and their Management Committee observation were forwarded to the Board of Trustees in a correspondence dated November 15th 2013 referred to as the submission report. Thereafter this submission report, the report of the Independent Inspection Committee and the Observations of the Management were all sent to the Council of Inspection in report dated November 27th 2013 . The Council in turn reviewed these reports and sent its own report with recommendation Exhibit C15, to the Board of Trustees in an Internal Memo dated 21st January 2014 Exhibit C16 And in a letter Exhibit C14 dated 26th March 2014 the claimant’s appointment as Business Manager/ Secretary was terminated following a decision taken at the General Meeting of the 1st defendant on the 23rd January 2014, in Exhibit C14 the defendants also informed the claimant that her termination was to take effect from August 2013. I shall come back to this point later in this judgment. The Learned author SASEGBON’S in his book Laws of Nigeria, an Encyclopedia of Nigerian Law and Practice, First edition, volume 16. paragraph 233 on Determination of master and servant relationship; states that “… In other cases governed only by, agreement of the parties and not by statute as in the present case, removal by way of termination of appointment or dismissal will be in the form agreed to between the parties in the agreement binding on themâ€. The claimants made heavy weather of the fact that the Independent Investigation Committee was not one of the committees provided Article 8 which states There shall be committees to undertake certain acts on behalf of members. In particular there shall be: Management Committee Council of Inspectors Investment and Loans Committee and Board of Trustees I do not share the view of the claimant especially considering the wordings of the sid Article. “There shall be committees to…..in particular….†I find the use of the words in particular connote the specific mention of some set of values which presuppose that the general set of the same values are given furthermore the words of Article 14 ( 10 ) the Management Committee handled cases of indiscipline and are to set up appropriate committee to treat and report to the General Meeting. This ‘appropriate committee’ I find does not include any of the 4 listed in Article 8 for the circumstance of Article 14. I see nothing wrong in the setting up of an Independent Investigation Committee by the Management Committee in these circumstances, in this regard reliefs 1,2,3,4 and 6 fall in part as far as the reliefs relates to the propriety of the appointment or setting up of the Independent Investigation Committee. I find that the by laws clearly give the defendants the necessary latitude to set up any committee it considers appropriate as regard questions of discipline. Embedded in the reliefs sought by the claimant are the question of the propriety of the role of the 2nd defendant being the one who discovered the incidence that gave rise to the investigation also being the President and star witness of the investigation panel. In Exhibit C12 the 2nd defendant informed the IIC that the Board of Trustees had given accent to the committee before and went on to narrate his findings of financial impropriety on the part of the claimant and continued that ‘when they, the Management Committee, confronted her and went through a random accounting with he it was settled that she should’ make some refunds, he then went on to mention 11 other act of the claimant bordering on running her private businesses in the 1st defendant’s premises to absenteeism in the office to leasing out part of the premises without permission inter alia. Now exhibit C3/D2 provides for the membership of the Board of Trustees in Article 8(6) and the members listed does not include the President yet the President proceeded to confirm the assent of the Board to the composition of the Independent committee. Together with the detailed role the 2nd defendant played before the Independent Investigation Committee and the fact that by the by laws the 2nd defendant is the Principal Officer of the 1st defendant raises the question as to whether the Natural justice Maxim of Nemo jurex in Causa has not been infringed. As it appears the 2nd defendant is both Judge and accuser, even in Exhibit C the report the 2nd defendant stated that the discrepancies were discovered when the Investment Officers made purchases which raises the question why it had to be the 2nd defendant that made the report and played such a prominent role in the investigation if his narration to the committee was second hand or at worst hearsay. All in all the 2nd defendant took an uncomfortably centric role in the investigation which ought not be as the Principal Officer of the 1st defendant to who all other organs and committees would ordinarily report. I find, this conduct of the 2nd defendant goes against and is contrary to the rules of natural justice, equity, good conscience and offends the doctrine of fair hearing for a person of authority to who the outcome of a matter would affect to be the actual accuser of the offender contrary to the Latin maxim Nemo judex in causa sua , one cannot be a judge in his own case,. Thirdly it is before the court and pleaded by the defendants that the claimant had been asked to refund some sums of money and she had in fact refunded some sums but refused to refund any more. It was at this stage that the defendants issued her a query. I find that the defendants in reaching an agreement with the claimant in respect of their findings that money be refunded and money had been refunded but she had in fact refunded some part I find that the labour principle of condonation has occurred. The rule is that an employer who upon the knowledge of an infraction or failing by an employee chooses to condone same cannot thereafter complain. See EKUNDA V. UNIVERSITY OF IBADAN [200] 12 NWLR (PT. 681) 220 CA, ACB PLC V. NBISIKE [1995] 8 NWLR (PT. 416) 725 CA, NIGERIAN ARMY V. BRIG. GEN. MAUDE AMINU KANO [2010] 1 MJSC (PT. I) 151 and LAWRENCE IDEMUDIA OBORKHALE V. LASU [2013] 30 NLLR (PT. 85) 1 NIC. Also in NIGERIAN ARMY v. BIG. GEN. MAUDE AMINUN-KANO (2010) LPELR – SC.243/2008 it was held that “where an employer has found the employee guilty of an alleged offence, negligence or misconduct but refuses or fails to take appropriate action against the employee as provided in the condition/terms of employment, the employer will be said to have condoned the act and forgiven the employeeâ€. and in the case of GEORGE v. FIRST BANK OF NIGERIA PLC (2014) 41 NLLR (PT. 126) 264 NIC @ 271 this court held that “i after the knowledge of fraud committed by an employee, the employer elects to retain him in his services, the employer cannot at any subsequent time dismiss him on account of that which he has waived or condoned. An employer is free to impose a lesser punishment for a more grievous infraction on the part of the employee. EKUNDA v. UNIVERSITY OF IBADAN (2000) 12 NLWR (PT. 681) 220; ACB v. NBISIKE ( 1995) 8 NWLR (PT. 416) 275 referred to.] An employer can either impose the reserved punishment on an erring employee, or condone the offence, impose no punishment what so ever or impose a lesser punishment, but where the employer opts for either of the latter three he cannot subsequently resuscitate the provision of the agreement to further punish the employer for the same infraction. In the instant case upon discovering the infraction of the claimant the defendants entered into an agreement for self restitution, and it was only when the claimant reneged on the agreement that the claimant was issued a query. Now having entered into a repayment agreement with the claimant and upon her refusal to make further refunds the defendant is entitled to recover the outstanding especially considering the provisions of Article 17 (7). What the defendants cannot do that state was to attempt to evoke the provision of the agreement. This I find is not in line with Exhibit C3. Even in the procedure adopted by the defendant I find is not quite in sync with that created by the by laws. As observed the by laws require that a report be sent to the 1st defendant through the Council of Inspection, no such report has been put before the court what we have is the 2nd defendant making a report to the Management committee who set up an ad hoc committee that rendered its report to the Management committee which in turn added their own observations, it is poignant to note that the claimant never appeared before the management committee, the report of the ad hoc independent committee and the observations were forwarded to the Board of Trustees before whom also the claimant did not appear and all three reports were then sent to the Council of Inspection before whom the claimant did appear. Curiously the Secretary of the Council of Inspection in a memo dated 21st January 2014 Exhibit C18, forwarded the report of the committee, C16, signed by its members on 22nd January 2014 to the Chairman BOT. I find that the procedure followed by the defendants evolved out of context of the laid down provision of the bye laws. The Learned author SASEGBON’S in his book Laws of Nigeria, an Encyclopedia of Nigerian Law and Practice, First edition, volume 16. paragraph 233 on Determination of master and servant relationship; states that “…Any other form of removal not in accordance with the terms of the agreement connotes only wrongful termination or wrongful dismissal, which cannot be declared null and void. UNION BEVERAGES LTD. v. OWOLABI (1988) 1 NWLR (PT. 68) 128 and UNION BANK OF NIGERIA LTD. v. OGBOH (1995) 2 NWLR (PT. 380) 647 @ 664.†– per Mohammed J.C.A. in OLANIFIMIHAN v. NOVA LAY-TECH LTD. SUIT NO. CA/B/120/97; (1998) 4 NWLR (PT. 547) 608 @ 620. Now the defendant Exhibit C14 letter of termination as I pointed out earlier stated that the decision to terminate the claimant was reached in a meeting held on the 23rd January 2014, yet the defendants did not tender any minute or document from the said meeting to justify their action. Furthermore the said letter purported to terminate the claimant retroactively now, in the unreported case of SUIT NO. NICN/LA/181/2011 IKE EDWARD CHUKWUEMEKA VS. ENTERPRISE BANK LIMITED delivered on May 13, 2014 this court held that a a dismissal letter cannot be effective when backdated…..and in backdating the dismissal of the claimant to 26th March 1998, the defendant acted wrongly. The court went on to declare the backdating of the dismissal of the claimant null and void and of no effect whatsoever;†and went on to hold the backdated letter of dismissal “of no consequence as far as its content is concerned;….. The law permits resignation, termination or dismissal to be with immediate effect, not retrospectively.†In that case the court went on to hold that the claimants dismissal in that case was only effective on the date the claimant received the said letter and that date of receipt was the date the cause of action inured. In the instant case I find that the termination of the claimant’s appointment was backdated making Exhibit C14 retrospective and so rendering it a nullity. The claimants Letter of Termination from the court’s file was dated 26th March 2014 and was duly acknowledged on the 16th April 2014. In the absence of any contrary evidence I find that the claimants appointment is one of Master and servant it means the appointment cannot be found or declared null and void. This is based on the notion that no servant can be imposed by the court on an unwilling master or employer even where the employer’s behavior towards the employee is wrongful. That being the case I find that the claimant appointment was terminated on the date the letter was made being March 26th 2014. As for the wrongful act of the employer, in this case with regard to the backdated letter he is in law, only liable to his wronged employee in damages and nothing more. UNION BEVERAGES LTD. v. OWOLABI (1988) 1 NWLR (PT. 68) 128. The law is also well established that ADEBAYO v. ANL & ANOR. (2015) 52 NLLR (PT. 175) 374 NIC @ 377 that “ in a master/servant relationship, a breach of contract will definitely attract damages which will be calculated on the basis of the length of notice required to properly terminate such a contract. Also in OVERLAND AIRWAYS LIMITED v. AFOLAYAN (2015) 52 NLLR (PT. 174) 214 NIC @ 224This court held that “in ordinary contract of employment, the amount of damages due to an employee whose employment has been wrongfully terminated is the award of salary for the period of notice and other legitimate entitlements at the time the employment was determined. GABRIEL ATIVIE v. KABELMETAL NIG. LTD. (2008) LPELR – 591 (SC). The claimants in their final address had rightly submitted that this court precluded from enquiring into the issue of alleged criminality of the acts of the claimant but rather, urged the Court to confine itself to the issue whether or not the termination of the employment of claimant was in accordance with the process laid down in the Bye-Laws of the 1st defendant. I also agree with the defendants that the issue of deliberation on the issue of criminality did not arise from either the claimant’s claim or the defendants’ counter-claim submitting that the argument was lifeless, hypothetical or academic at the issue before the court is not the allegation of misappropriation of any account and it is on this premise that reliefs 5 and 7 therefore fail for not only are the court not permitted to gag an employer from disciplining his employee See the unreported case of SUIT NO. NIC/LA/117/2011 MR. BABATUNDE VS. DANA MOTORS LIMITED July 10, 2013. These are reliefs that are actually outside of the competence of this Court to grant. This Court cannot by an injunction gag an employer from disciplining an employee where the need arises; and regarding the prayer for the defendant not to harass, arrest or intimidate the claimant, this is also, without more, outside of the jurisdiction of this Court. This Court cannot either gag the process of the administration of justice or due process in the manner prayed for by the claimant in relief 5) and more particularly in relief 9). The law generally recognises the right of an employer to discipline any erring employee in the interest of the organization or institution,. See NEPA V. OLAGUNJU [2005] 3 NWLR (PT. 913) 602. Indeed, as held in SHELL PET. DEV. CO. (NIG.) LTD V. OMU [1998] 9 NWLR (PT. 567) 672, it is a disruption of an ordinary employer’s business to fetter him with an injunction not to discipline his servant. For these reasons reliefs 5) and 7) cannot be granted by this Court. On the whole I find that the defendants have not in terminating the claimant followed the laid down procedure in their own guidelines. The only remedy available to an employee removed contrary to the terms of his employment is a claim for damages for the wrongful termination or wrongful dismissal. This is based on the notion that no servant can be imposed by the court on an unwilling master or employer even where the employer’s behavior towards the employee is wrongful. Thus, for the wrongful act of the employer, he is only liable to his wronged employee in damages and nothing more. UNION BEVERAGES LTD. v. OWOLABI (1988) 1 NWLR (PT. 68) 128 and UNION BANK OF NIGERIA LTD. v. OGBOH (1995) 2 NWLR (PT. 380) 647 @ 664.†– per Mohammed J.C.A. in OLANIFIMIHAN v. NOVA LAY-TECH LTD. SUIT NO. CA/B/120/97; (1998) 4 NWLR (PT. 547) 608 @ 620. The claimants are asking for N150 Million ad debt due to the claimant and damages. The claimant had not shown the court how she arrived at N150 million in either debt or damages, this relief cannot succeed as couched. I am convinced that a reasonable man on the street when considering the claimant situation would expect the claimant to be compensated. However this Court is empowered to award compensation or damages in a matter it has jurisdiction over ie Section 19(d) of the NIC Act 2006, for instance, provides that this “Court may…where necessary make any appropriate order, including…an award of compensation or damages in any circumstances contemplated by this Act or any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hearâ€. I find that this is a just cause in which the court should evoke the provisions of this section to award a lump sum in compensation /damages to assuage the way and manner in which the claimant was wrongfully terminated. Now to the defendants counter claim. The defendants in paragraph 26 of their statement of defence the defendants averred that the Claimant had caused the Defendants/Counter Claimant great losses and financial hardships. Consequently, the Defendants Counter claim against the Claimant as follows: (i) An Order of Court directing the Claimant to refund the sum of N11,813,176.05k (Eleven Million, Eight Hundred and Thirteen Thousand, One hundred and Seventy-six naira and five kobo) only being the total sum the Claimant misappropriated, misapplied or mismanaged within the period of her employment as the business manager of the 1st Defendant. (ii) An interest of 20% of the total sum misappropriated, misapplied or mismanaged by the Claimant. (iii) The sum of N5,000,000.00 (Five Million Naira) only as general damages. (iv) AND for such other or further order(s) as this honourable Court may deem it fit to make in the circumstances of this suit. The defendant apart from the averments in their counter claim and the deposition of DW, the defendant tendered and presented no evidence in support of their counter claim, no evidence was put forward as to how they arrived at the sum neither was there any cross examination of the claimant as to these amounts being counter claimed except for the questions that the claimant was arrested and was standing trial for the misappropriated funds to which the claimant replied in the affirmative, there is nothing before the court to substantiate this counter claim. Even the argument that the claimant had made admissions raised in the defendants final address was not substantiated. As for Exhibit D 4 and D 5- D5(2) these are Letters of Counsel which were the only documents not already tendered barring the Certificate of incorporation, and of no probative value in establishing the counter claim. The law thus is that a party who produces an exhibit so that the Court could utilize it in the process of adjudication must not dump it on the Court, but must tie it to the relevant aspects of his case. See IVIENAGBOR V. BAZUAYE [1999] 9 NWLR (PT. 620) 552; [1999] 6 SCNJ 235 AT 243, OWE V. OSHINBANJO [1965] 1 ALL NLR 72 AT 15, BORNU HOLDING CO. LTD. V. ALHAJI HASSAN BOGOCO [1971] 1 ALL NLR 324 AT 333, ALHAJI ONIBUDO & ORS V. ALHAJI AKIBU & ORS [1982] 7 SC 60 AT 62, NWAGA V. REGISTERED TRUSTEES RECREATION CLUB [2004] FWLR (PT. 190) 1360 AT 1380 – 1381, JALINGO V. NYANE [1992] 3 NWLR (PT. 231) 538, UGOCHUKWU V. CO-OPERATIVE BANK [1996] 7 SCNJ 22, OBASI BROTHERS LTD V. MBA SECURITIES LTD [2005] 2 SC (PT. 1) 51 AT 68, EZE V. OKOLAGU [2010] 3 NWLR (PT. 1180) 183 AT 211, ANPP V. INEC [2010] 13 NWLR (PT. 1212) 547, UCHA V. ELECHI [2012] 13 NWLR (PT. 1316) 330 AT 360, BELGORE V. AHMED [2013] 8 NWLR (PT. 1355) 60 AT 99 – 100, OMISORE V. AREGBESOLA [2015] 15 NWLR (PT. 1482) 202 at 323 and 324 and Unreported SUIT NO. NICN/LA/268/2012 ADEMOLA BOLARINDE V. APM TERMINALS APAPA LIMITED the judgment of which was delivered on 25th February 2016. The counterclaim for the above reasons fails. Having found that the claimants termination was wrongful due to the fact that the procedure adopted by the defendants was not in conformity with the bye law , having found that the letter of termination is a nullity and with the courts finding that the defendants are empowered to set up an Independent Investigatory Committee, the only orders that can be made in this circumstances are these. It is hereby declared that the procedure adopted by the defendants in terminating the claimant was wrongful and contrary to the provisions of the 1st defendant’s bye laws. The defendants shall pay to the claimant one month’s salary in lieu of notice The defendant shall pay to the claimant all due salaries not paid and being due from the period of suspension. The defendant shall pay to the claimant the salaries due to her from after the said suspension until March 26th 2014 when this court determined the claimants appointment was severed. The sum of 1,500,000.00 as lump sum under Section 19 of the National Industrial Court Act as compensation. The counter claim of the defendants having not been proved is hereby struck out with cost of N250, 000.00 Cost of this suit is put at N100, 000.00. All sums to be paid with 60 days thereafter interest at 10% will incure. This is the courts judgment and it is hereby entered. …………………………………… Hon. Justice E. N. Agbakoba Judge S.P.D.C.N. LTD. v. AJUWA (2015) 14 NWLR (PT. 1480) C.A. 403 @ 431 On Duty of person seeking declaratory relief A party seeking a declaratory relief must place before the court credible and sufficient evidence to entitle him to the declaratory relief. A court cannot grant a declaratory relief without credible sufficient evidence. Such a relief cannot be granted without oral evidence by the plaintiff even where the defendant expressly admitted same in the pleading, the relief being equitable in nature. In the instant case, the trial court should not have granted the respondents’ relief 2 in the absence of credible evidence. KWAJAFFA v. B.O.N. LTD (2004) 13 NWLR (PT. 889) 146. BAYTIDE (NIG.) LTD v. ADERINOKUN (2014) 4 NWLR (PT. 1396) 164 C.A. @ 182 On Duty on party seeking declaratory relief A party seeking declaratory relief has a duty to adduce cogent and credible evidence to justify the exercise of the discretion… The respondents having vehemently and categorically denied harassment of the appellant’s staff, the burden rested squarely on the appellant to adduce convincing evidence of the harassment. TITILOYE OLUPO (1991) 7 NWLR (PT. 205) 519; ODUNZE v. NWOSU (2007) 13 NWLR (PT. 1050) 1 referred to.] SOKUNLE & ORS. v. FIRST BANK OF NIG. PLC (2014) 49 (PT. 160) 129 NIC @ 132 On Power of National Industrial Court to regulate its proceedings – By virtue of the provisions of Sec. 36 of Trade Dispute Act, 2004 and Sec. 12 of the NIC Act, 2006, the National Industrial Court is empowered by law to regulate its proceedings in order to serve the best interest of justice.