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The Claimant commenced this action by way of Complaint dated and filed the 2nd day of December 2016 wherein he claimed against the Defendant as follows: 1. A DECLARATION that the Claimant did not commit any offence to warrant deduction from his salaries by the Defendant either as a deduction resulted to by way of salary advance or payment for the missing eight units Air Condition. 2. A DECLARATION that the Claimant cannot be punished for an offence which the disciplinary committee and the management of the Defendant exonerated him from the decision which was duly communicated to him in the letter of 19/10/2015 by the Defendant. 3. A DECLARATION that the deduction of N21,112.00 monthly from the Claimant’s salaries by the Defendant in the months of September to November, 2016 is illegal and an attempt to embarrass the Claimant in the case of stolen eight Air Condition which the disciplinary committee and management have already investigated and found the Claimant not culpable and same duly communicated to the Claimant. 4. AN ORDER of court compelling the Defendant to pay back the sum of N63,336.00 representing the amount deducted from the Claimant’s account in the months of September 2016 to November 2016 tagged by the Defendant as "salary advanced". 5. AN ORDER of the court compelling the Defendant to pay back to the Claimant all other deductions from the month of December, 2016 to the date of the judgment in the name of "salary advance" or under any guise. 6. AN ORDER OF PERPETUAL INJUNCTION restraining the Defendant from further deduction of any amount either as "salary advance" or deduction for the purchase of the eight Air-conditions to replace the stolen ones from the Claimant’s salary. 7. AN ORDER OF PERPETUAL INJUNCTION restraining the Defendant from terminating, dismissing or suspending the Claimant on the same issue of loss of eight Air conditions or on the ground of instituting this suit against the Defendant. 8. COST of instituting this suit assessed at N500,000.00 (Five Hundred Thousand Naira Only). 9. 10% per annum post judgment interest on the judgment sum until the entire judgment sum is fully liquidated by the Defendant. Along with the Complaint, the Claimant filed a verifying Affidavit, Statement of Facts, list of witnesses, Witness’ deposition on oath, list of documents and copies of documents to be relied upon at the trial. On the 21st day of March 2017, the Defendant, vide a motion for extension of time, entered appearance and filed a Statement of Defence and Counterclaim along with a list of witnesses, the Defendant’s witnesses written depositions on oath, list of documents and copies of documents to be relied upon. On the 30th day of March 2017, the Claimant filed a Reply to the Defendant’s Statement of Defence and counterclaim, along with a further statement on oath of the Claimant. Hearing had commenced on the 6th day of March 2017 before other processes were regularized on the 30th day of March 2017 when hearing continued till the 7th day of June 2017. Parties called one witness each. The Claimant testified for himself as CW1 while one John Ubaji testified for the Defendant as DW1. When hearing ended on the 7th day of June 2016, Parties were ordered to file their Final Written Addresses pursuant to the Rules of Court. The Defendant’s Final Written Address was filed on the 7th day of July 2017 while the Claimant filed his Address on the 24th day of July 2017. On the 27th day of September 2017, this court deemed the final written addresses as having been properly filed and served, and parties proceeded to adopt their respective addresses on the same day. Defendant’s Final Written Address In the Defendant’s final written address filed on the 7th day of July 2017, counsel formulated a lone issue for determination as follows: Whether having regards to the totality of the evidence before the court the Claimant has proved his reliefs as to entitle him to the claims he is seeking in this case Submissions on the Admissibility of Exhibits D5, D6, D7 and D8 Counsel started by addressing the issue of the admissibility of Exhibits D5, D6, D7 and D8, objection having been raised by the Claimant as to same. It was Counsel’s submission that Exhibits D5, D6, D7 and D8 can be accepted and relied upon by this court in this case as they are certified true copies of public documents. According to counsel, Exhibit D5 is a certified copy of Bill of quantity of the missing 8 air condition units; Exhibit D6 is a certified copy of an internal memo on the Claimant's salary advance; Exhibit D7 is a certified copy of an extract of the minutes of the 41st meeting of the Defendant's Governing Council; and Exhibit D8 is a certified copy of the extract of the minutes, of the 44th meeting of the Defendant's Governing Council. All these documents according to counsel, are public documents and admissible by virtue of Sections 104 and 105 of the Evidence Act. The Defendant’s evidence in paragraphs 21, 23, and 24 of the Defendant Witness Statement on oath as to the content of Exhibit D5 deals with the value of the 8 air condition units. Exhibit D5 is therefore relevant and admissible. Counsel urged the Court to attach weight and probative value to it, in the interest of justice. In paragraph 28 of the Defendant's witness statement on oath, the Defendant also adduced evidence as to the content of Exhibit D6. Counsel submitted that both Exhibits D5 and D6 are all relevant and should be relied upon in this case pursuant to Sections 4, 10 and 13 of the Evidence Act. Further, Counsel submitted that Exhibits D7 and D8 are certified copies of extracts of meetings of the Governing Council of the Defendant, extracted and signed by the current Secretary to Council and Registrar of the Defendant, Mr. Felix Edoka. To counsel, exhibits do not necessarily have to be made by a person who took the minutes of the meeting or must be in attendance. Evidence of the extract/excerpt of the meeting made by Mr. Felix Edoka (secretary to the Council of the Defendant in the instant case) is not only admissible but also relevant. Counsel predicated this submission upon the sensitive and legal imperative of the office of the 'Secretary' like that of the Council to the Defendant in the instant case. He referred to the Black's Law Dictionary which refers to Secretary in reference to a corporation, association, legal entity as an officer charged with the direction and management of that part of business of the company which is concerned with keeping recording records, the official correspondence with, giving and receiving notice, countersigning documents etc. If the said Mr. Felix Edoka Secretary of the Counsel of the Defendant is saddled with such responsibilities of directing and managing the business and/or affairs of the Council of the Defendant, it will therefore not be out of place for him to give evidence (extract/excerpt) in relation to the business and/or affairs as in the instant case. Counsel went on that any argument under any guise as to calling of the maker (a person who merely took down minutes without more) for the purpose of having to admit extract/excerpt in evidence does not and cannot represent the law. He urged the Court to discountenance such line of reasoning. According to counsel, the question is whether the court can accept and admit extract/excerpt of documents and rely upon same in evidence. He submitted that the former position was that this court would not accept extracts or excerpts of documents as in the case of MEDICAL AND HEALTH WORKERS UNION OF NIGERIA vs. FEDERAL MINISTRY OF HEALTH unreported Suit No. NICN/ABJ/238/2012, judgement which was delivered on 20/7/2013 where this court rejected documents frontloaded as having no probative value and weight because they were either excerpts or annexes of documents, the complete set of which was not shown to the court in order to ascertain that they were indeed part of the documents they profess to be. But given the Supreme Court decision in CBN vs. AMAO & ORS (2010) 16 NWLR (Pt. 1219) 271, where extract of public document (certified true copies) were accepted and relied upon, this Honourable Court subsequently allowed extracts of certified documents to be admitted and used. See the case of OLUWALE OLATUNJI vs. THE INDUSTRIAL TRAINING FUND GOVERNING COUNCIL & ANOR, unreported suit No. NICN/CA/60/15, judgment of which was decided on 14th June, 2016 by Hon. Justice B. B. Kanyip. Counsel therefore urged the Court to admit Exhibits D7 and D8 in evidence. Counsel also submitted that Exhibits D5, D6, D7 and D8 being certified true copies of public documents are all relevant and admissible having regards to the above submission. Counsel premised this submission on the settled position that: In determining the admissibility of evidence, it is the relevance of the evidence such as a document that is important ....., as admissibility of evidence particularly documents, depend on the purpose for which it is being tendered. Counsel referred the court to the decision in ENEMCHUKWU vs. OKOYE & ANOR (2016) LPELR-40027 (CA) and NWABUAKU vs. ONWORDI (2006) All FWLR (331) 1236 at 1251 to the effect that Admissibility of evidence is based on relevance. A fact in issue is admissible if it is relevant to the matter before the Court. In that respect, relevancy is precursor to admissibility. Flowing from the above, what is not relevant is not admissible. Submissions on the issue for determination The Defendant Counsel sought to make their submission serially on each relief. Relief 1 On relief one, counsel submitted that the Claimant’s claim against the Defendant is a declaration that the Claimant did not commit any offence to warrant deduction from his salary by the Defendant, either as a deduction resulted to be by way of salary advance or payment for the missing eight Air condition. On this point, counsel submitted that the deduction from the Claimant salary resulted as payment for the missing 8 air condition units. According to counsel, the live issues before the court is that the Claimant’s evidence before this court are as follows: The Claimant is an employee of the Defendant; He is an accountant at the Port Harcourt study centre; In 2014 he performed the duty of a store officer by receiving store items including 8 units of Thermocool Air condition; The 8 units of Air condition belonged to the Defendant; The Claimant did not keep any record of the receipt of the air condition; The air conditions got missing and have not been found till date; The Defendant suffered loss in the sum of N760,000.00 being the value of the 8 air condition unit. It was the Defence counsel’s contention that the above parts were never controverted nor denied by the Claimant during his testimony in open court. He admitted receiving the 8 Air conditions and that there was no record in the store relating to the missing air condition units. Even though he claimed that he gave the said air condition unit to the store officer, the said piece of evidence was never proved as the store officer or the Centre Director was never called to give evidence to that regard. According to Counsel, the law is trite that whosoever asserts must prove, and the Claimant has failed to comply with this trite principle. Counsel submitted that when the deductions were made by the Defendant, the Claimant wrote Exhibits C6 and C14 to the Defendant demanding some explanation as to the reason for the deduction in his salary. The Defendant wrote a reply to the Claimant in Exhibit D4 explaining the reason for the deduction. In Exhibit D4 the Defendant explicitly stated in paragraph 3 that the Governing Council at its 44th meeting (Exh. D8) held on Thursday 2nd June, 2016 considered the report of the committee (Exh. D2) and noted that the 8 A/C units were lost as a result of gross negligence and incompetence on the part of the Defendant and some other staff. Counsel submitted that the evidence before this court shows that the 8 air condition units went missing because the Claimant received them but failed to keep records as demanded by store procedures as contained in Exhibit C2 and as it relates to schedule duty of a store officer even though the claimant claimed that he is not the store officer, but he performed the duty of a store officer at the time he received the 8 air condition unit [This fact according to counsel, is not in dispute]. Having accepted to perform the duty of a store officer, he is bound to follow all the rules associated with same as at the time of receiving the goods properties of the Defendant as in the instant case. The Claimant having failed to keep proper records in the appropriate documents such as Exh. D1 A-C, he grossly acted negligently and this apparently resulted in the loss of the 8 air conditions. To counsel, the evidence before the court is that the Claimant did not hand over the 8 air conditions which he received and acting negligently and unprofessionally is the reason for which the 8 air conditions (property of defendant) got missing. Counsel submitted that an employee (the Claimant as in the instant case) owes a duty of care to his employer (the Defendant) to protect its property or use same in such a way that no preventable loss would occur. Counsel placed reliance on the case of ABOMELI vs. NRC (1995) 1 NWLR (Pt. 372) 451 C.A. and argued that the fact that an employee is tardy or there is lack of diligence in his approach to his duty, or he is negligent and the master by the same suffers loss due to the unacceptable behavior of the employee, such employee is guilty of misconduct to which the appropriate disciplinary action can be taken against him. In applying the above principle to the present case, it is counsel’s submission that the following facts have emerged: The Claimant owed the Defendant a duty of care to protect the 8 air condition units which he received as properties of the Defendant and to protect same from preventable loss; The loss of the air conditions was preventable if the Claimant had kept records of the items he received; He was tardy or lacked diligence in his approach to duty as it relates to his handling of the 8 air conditions; The Defendant suffered loss due to the unacceptable behavior of the Claimant; His behavior amounted to gross misconduct which the appropriate disciplinary action was taken against him in the form of deduction from his salary to satisfy the loss suffered by the Defendant. Having regard to the totality of the evidence before the Court, it is counsel’s submission that the Claimant failed to prove his case that he acted diligently as to be entitled to the reliefs or claims sought against the Defendants. It is a cardinal principle of law that he who asserts must prove and a person who makes an allegation in a pleading is bound to produce evidence to substantiate the said allegations. See the case of GBINIJIE vs. ODJI (2011) 4 NWLR (Pt. 1236) 103 at 126-127 paras. H-B where the Court of Appeal held inter alia that: Whoever desires any Court to give judgment as to any legal rights dependent on the existence of facts which he asserts, must prove that those facts exist. Succinctly put - He who asserts must prove. The Court further held that: In other words, it is the party who asserts the existence of a particular fact that must prove that fact. It must also be remembered that the term "burden of proof" is used in two different senses. In the first sense, it means the burden on a party to persuade the court that his case is true and consequently to have the case established and judgment given in his favour. This burden is always stable and remain on the same party. Counsel urged the court to discountenance the Claimant's relief 1 and dismiss this case as the Claimant has failed to discharge his legal burden of proof. The action of the Claimant who took delivery of the 8 air conditions without having to keep proper record as required amounts to gross misconduct and indeed negligence to duty. A person coming to equity as the Claimant in the instant case must come with clean hands. A party should not be allowed to benefit from his own wrong. "nullus commoium capere potest capre potest de injuria sua pria." [See ALADE vs. ALIC (NIG.) LTD (2010) 19 NWLR (Pt. 1226) 111 at 131, paras A-D]. Relief 2 The second relief is for a declaration that the Claimant cannot be punished for an offence which the disciplinary committee and management of the Defendant exonerated him from, the decision which was duly communicated to the Claimant in a letter of 19/10/2015 tendered as Exhibit 13, and that the contents of which are very clear as a trite document speaks for itself. According to counsel for the Defendant however, the said letter did not in any clear way exonerate the Claimant from any blame. Even though there was no substantial evidence to show that he removed the air condition, the Claimant did not hand over the air condition professionally, and this resulted in their being missing. Counsel argued that if the Claimant had handed over the 8 Air Conditioners as the schedule of store keeping requires, that is, by recording them, then the Defendant would have been able to trace them even if they were missing; and the Claimant would not have been liable in any way. The Claimant in his evidence referred to Disciplinary Committee and the Management who looked at his case. According to the Defendant, the Claimant alleged that he was exonerated, without placing anything before this Court to prove same. This according to counsel, is in the realm speculation, and the Court cannot act on speculation or assume anything. See the case of U.T.B (NIG.) vs. OZEOMENA (2007) 3 NWLR (Pt. 1022) 448 at 487 para C. Counsel submitted that the Claimant’s contention that he was exonerated does not represent the true position. In the case of discipline under the Regulation Exhibit C1, Section 3.2.1 gives power to exercise disciplinary control to both the Vice Chancellor and the Governing Council over members of staff of the University. The management has its own disciplinary committee which must submit its report to council through the Vice Chancellor and the Council also has its own Disciplinary Committee and Appeal Committee. By Section 3.2.3 of Exhibit C1, when the office of the Registrar receives a case of discipline, he forwards same to the Vice Chancellor who forwards it to council. It is the Council that has the final decision and it may approve the report of the management disciplinary committee or set it aside and direct that its own Council Disciplinary Committee investigates the case again. According to Counsel, this was what happened in the case of the Claimant. By Section 3.3.1 (vi) of Exhibit C1 the Governing Council has the power to remove any member of staff of the University and by subsection (vi) d (iv) of Section 3.3.1 of Exhibit C1, Council also has the power to give a lesser punishment on any offence committed by any staff of the University. In this case, according to counsel, the Claimant ought to have been removed but Council decided that it is better to recover the value of the lost air condition units from those responsible for the missing store items than dismissal, hence the Claimant and his colleagues at the Port Harcourt study centre were surcharged on an equal basis, to recover the value of the loss of 8 air condition units which got missing by reason of the flagrant neglect in ensuring proper record. Counsel submitted that it is on record that in the case of the Claimant, after investigation, the management committee wrote its report, Exhibit C4, the Claimant, store officer and centre director appeared to defend themselves, but it was only the case of the store officer that was presented to council for at its 41st meeting of 13/1/2016. Counsel submitted that the University council observed inconsistencies and contradictions in the report. The University council deliberated and decided that the report of the management investigation panel be set aside to allow for further investigation by the council disciplinary committee, by this decision, Exhibit C.4 was nullified by council. Council went on that the extract of the 41st meeting of council held on 13/1/16 was tendered and admitted as Exhibit D.7. He referred the court to item 9.7.1.3 of Exhibit D7. Upon setting aside of Exhibit C.4, council committee was set up and that the council disciplinary committee interacted with all the staff mentioned in the incident, namely; Moses Amini, Mr Babatunde Ajayi (Claimant) and Mrs. Obianuju Ezeburo. In respect of the Claimant, the council committee observed that the Claimant was not professional in the receipt and handing over of the items received by the store officer as there was no proper documentation of the items received. The council committee then recommended that all staff involved in the missing 8 Air conditions be surcharged on equal basis. Exhibit D2 was presented to the University council at its 44th meeting of 21/6/16. Exhibit D8 is the extract of the said meeting. By item 17.4.3 of Exhibit D8, the council found the Claimant blameworthy in the way he received and did not hand over in a proper manner, the received items, as there was no documentation. The recommendation in Exhibit D2 was then accepted and approved by council in Exhibit D8. It is Counsel’s submission that it is erroneous for the Claimant to allege that he was exonerated and cannot be punished for the missing 8 air condition units, and that the 8 air conditions got missing because of the negligence on the part of the Claimant. Counsel submitted that the Defendant has copiously adduced evidence to this fact in paragraphs 33, 34, 35, 36, 37 and 38 of the Defendant's witness statement on oath, and they have not been controverted or challenged in any way. The law is clear as to uncontroverted and unchallenged evidence. Evidence that is relevant to the issue in controversy and which is not successfully challenged, contradicted and discredited is good and reliable evidence to which probative value ought to be ascribed, and which ought to influence the court in the determination of the case before it. That was the decision in CHABASAYA vs. ANWASI (2010) 10 NWLR (Pt.1201) 163 at 178-179, paras H-B. Counsel urged the court to refuse to grant the declaration sought in relief 2. Relief 3 Relief 3 is for a declaration that the deduction of N21,112.00 monthly from the Claimant salaries by the Defendant in the month of September to November 2016 is illegal and an attempt to embarrass the Claimant in the case of 8 stolen air conditions which the disciplinary committee and the management have already investigated and found the Claimant not culpable and same duly communicated to the Claimant. Counsel submitted that the Claimant has not adduced any credible evidence to prove this relief. Counsel contended that the Claimant pleaded this fact in paragraph 21 of his witness statement (pleadings) but however did not place anything before this Court to support the averment, same is bound to fail as pleadings do not constitute evidence. It is settled that any averment of fact that is unsupported by evidence is deemed abandoned and must be discountenanced. Citing the authority of ODUWOLE vs. WEST (2010) 10 NWLR (Pt. 1203) 598, Counsel submitted that the Court is only bound to consider and decide the party's claim on evidence before it. According to Counsel, a proper reading of Exhibit C4 will reveal that the disciplinary committee observed at page 3 paragraph 2 of the report that the Claimant did not hand over the received items professionally as an Accountant. This only goes to show that the Claimant acted negligently. Even Exhibit C13 which the Claimant tendered in evidence cannot help the Claimant to prove relief 3. Paragraph 2 of Exhibit C13 is to the effect that management considered the report in Exhibit C4 and noted that even though there was no substantiated evidence to show that the Claimant was party to the removal of the missing 8 air condition units, nevertheless, the Claimant did not hand over the received items professionally as an Accountant. Counsel submitted that it was the Claimant's failure to hand over the 8 air conditions professionally that led to the missing of the received items. If the Claimant had used Exhibits D1 (a), (b), (c) to do the hand over, the Claimant would have handed over the received items professionally. But because he failed to do the correct thing, his action was enough for the Defendant to qualify it as gross misconduct. Records would have been available to enable the Defendant trace the missing 8 air condition. The loss occasioned by the Defendant was because the Claimant negligently failed to record the receipt of the items he received. The Defendant is therefore entitled in law to deduct the monthly salary of the Claimant to satisfy the loss. Having failed to protect the property of the Defendant thereby resulting to and loss, Counsel opined that the Claimant is guilty of misconduct and should be punished by the Defendant. See NRC vs. ABONELI (Supra). According to counsel, the Defendant can even dismiss the Claimant for not being honest in the way he failed to hand over the 8 air conditions properly. See ARINZE vs. FISN LTD (2004) 12 NWLR (Pt. 888) 663 S.C. Counsel reiterated the facts that led to the deduction of the Claimant’s salary as contained in paragraphs 15 to 25 of the Defendant's witness statement on oath; which facts are also pleaded in paragraphs 14 to 24 of the statement of defence; and Exhibits D2 to D8 which the Defendant has tendered to support the deduction from the Claimant’s monthly salary; hence, it cannot be correct to say that the deduction is illegal. Counsel therefore submitted that the Claimant has failed to prove his case as to entitle him to relief 3 as well as other reliefs. He urged the court to dismiss the said relief as lacking in merit. Reliefs 4 and 5 Relief 4 is for an order of Court compelling the Defendant to pay back the sum of N63,336.00 representing the amount deducted from the Claimant’s November 2016 salary, tagged as "salary advance". Relief 5 is for an order compelling the Defendant to pay back to the Claimant all the deductions from the month of December 2016 to date of judgment in the name of "salary advance" or under any guise. It is counsel’s submission that the Claimant has failed to prove reliefs 4 and 5 of his claim. The Claimant’s contention that he did not apply nor was granted salary advance is not supported with evidence. It is not sufficient to state an averment in pleadings as such averment must as a matter of law be supported by cogent evidence, otherwise it goes to no issue and same would be deemed as abandoned. Counsel referred the court to the cases LAWSON vs. AFANI CONT. CO. LTD (2002) 2 NWLR (Pt. 752) 585 at 624-625 paras. F-C; LADUNNI vs. WEMA BANK PLC (2011) 4 NWLR (1236) 44 at 63 Para C-E. The Defendant on his part pleaded in paragraphs 27 and 28 of the statement of defence and adduced evidence to support these facts in paragraphs 28 and 29 of the Defendant's witness statement on oath, the reason of the deduction, which was treated as salary advance. The Defendant tendered in evidence Exhibits D3 (a) & (b), D4 and D6. All these exhibits were frontloaded by the Defendant but the Claimant did not deny their contents. The Claimant is therefore deemed to have admitted them. Facts admitted need no further proof nor is it a fact in issue. See A.C.B. LTD. vs. OBA (1995) 7 NWLR (Pt. 304) 173 at 184 paras. B-C. BUNGU vs. GOVERNOR RIVERS STATE (2006) 12 NWLR (Pt. 995) 573 at 599-600, paras. B-C, H-B The Claimant alleged that his case ended with the investigation by the disciplinary committee and the decision of the management on Exhibit C4 but he deliberately refused to tell the court that he appeared before the Governing Council Disciplinary Committee of the Defendant as shown in Exhibits D2 and D8. He also failed to bring to the attention of the court, the content of Exhibit D4 written to him by the Defendant dated 2/11/16 explaining the reasons for the deduction in his monthly salary. Despite the elaborate explanation in Exhibit D4, counsel wondered why the Claimant still came to court to ask for the orders in reliefs 4 and 5 respectively. According to counsel, the Claimant is merely trying to be clever by half in an attempt to mislead the Court. Having regard to the above, the Claimant has failed to prove the said reliefs. Counsel urged the Court to dismiss the reliefs for lack of merit. Reliefs 6 and 7 Relief 6 is for an order of perpetual injunction restraining the Defendant from further deduction of any amount either as salary advance or deduction for the purchase of the air condition to replace the stolen ones from the Claimant salary. Relief 7 is an order of perpetual injunction restraining the Defendant from terminating, dismissing or suspending the Claimant on the same issue of the loss of 8 air condition or on the ground of instituting this suit against the Defendant. It is the submission of Counsel that the order sought for in relief 6 should not be granted, having regard to the Defendant’s earlier arguments in respect of Reliefs 3, 4 and 5. According to counsel, the Claimant's negligent conduct was no doubt responsible for the missing 8 air conditions which caused the Defendant to suffer losses in the sum of N760,000.00 being the value of the missing 8 air condition. See NRC vs. ABOMELI (Supra). Counsel submitted that an order of perpetual injunction against the Defendant in this case will be grave injustice to the Defendant who has suffered loss. Counsel pointed out that Relief 7 is not supported by any pleading in the Claimant’s statement of facts, therefore the averment in paragraph 36 of the Claimant's witness statement on oath goes to no issue. Counsel pointed out further that the said averment in paragraph 36 of the Claimant's witness statement on oath contains extraneous matters because it is a conclusion about something the Defendant may do in the future. The said paragraph offends Section 115(2) of the Evidence Act and therefore should be disregarded. Counsel urged the court to refuse the order sought for by the Claimant in reliefs 6 & 7 against the Defendant. Reliefs 8 and 9 Relief 8 is for cost of instituting this case assessed at N500,000.00 and relief 9 is for 10% per annum post judgment interest on the judgment sum until the entire judgment sum is fully liquidated by the Defendant. Counsel submitted that the Claimant is not entitled to the cost of this suit because it has not been specifically pleaded and proved. The suit as constituted is in bad faith. Counsel relied on the decision of the Court of Appeal in DEVINE IDEAS LTD vs. UMORU (2007) All FWLR (Pt. 380) 1468 at 1500 per Omoleye JCA dealing with the issue of cost which states; "Cost of action or solicitor's fees are in the realm of special damages which must be specifically pleaded and strictly proved. In the instant case, the Appellant did not specially and specifically plead the details of the amount of money expended by it in the prosecution of the litigation in the trial court. It also did not give evidence in proof of this" Counsel urged that relief 8 be refused. According to counsel, Relief 9 is for 10% on pre-judgment interest even though the Claimant disguised as post judgment interest. Counsel added that the court does not grant pre-judgment interest. As such, the claim for 10% interest should not be granted. He referred the court to the decision in Suit No. NICN/LA/287/2013, VINCENT OKECHUKWU OKOKE vs. WEST AFRICAN VENTURES LTD (WAV), an unreported judgment of this court which was delivered on 15/4/2015 per Hon. Justice B.B Kanyip. IN CONCLUSION, counsel for the defendant urged the Court to refuse the reliefs sought by the Claimant, having not proved same. He urged the court to dismiss the Claimant's case in its entirety as lacking merit. He proceeded to make the following concluding submissions: Counsel restated that the Claimant has admitted in this court that he was the person who received the 8 air condition units in the course of his official duty; the said 8 air conditions were received without any record made by him; the said 8 air condition units got missing and the 8 air condition units were the property of the Defendant. Based on this clear admission, Counsel submitted once again that facts admitted or deemed admitted need no further proof. He cited Section 123 of the Evidence Act on admitted facts in civil proceedings as in the instant case and the case of ONONAKU vs. AKUBUE (2009) 15 NWLR (Pt.1165) 539 at P.551, para. E, where the Court of Appeal held that By virtue of section 75 (now 123) of the Evidence Act, facts which are admitted or deemed admitted need no further proof. According to Counsel, the Defendant’s evidence before the court is that the Claimant together with two of his colleague at the Port Harcourt study centre were responsible for the loss of the missing 8 air condition units; the act of the Claimant and his colleagues amounted to gross negligence which caused the Defendant to suffer losses; all the staff responsible for the missing 8 air condition should be surcharged on equal basis for the value of the 8 air condition units in the sum of N760,000.00; the surcharges should be by deduction from their monthly salary in the form of salary advance. The gist of this matter is purely that of 'negligence'. From the evidence before the court, the Claimant actions have adversely affected the Defendant in the instant case. The law is clear as to the essential elements of negligence which includes the fact that (a) That party "A" owes party "B" a duty of care; (b) That party "A" failed to exercise that duty of care; (c) Party "A" failure occasioned the damage or loss suffered by party "B". See B.S. (NIG.) LTD vs. OMETRACO INT'L LTD (2011) 10 NWLR (Pt. 1255) 290, OJO vs. GHARORO (2006) 10 NWLR (Pt. 987) 173 at 234, PARA F-H, P.234, PARAS C-E. For the Claimant to turn around under any guise to file this suit is most unfortunate. The Claimant having by his act of negligence caused the Defendant to suffer loss, then the Defendant is justified by its regulation as well as entitled to seek for the recovery of the losses from the Claimant. In since the Claimant is still a serving employee of the Defendant, the easy way and in line with its practice is for the Defendant to deduct from the monthly salary of the Claimant so as to gradually recover the loss for the missing 8 air conditions and to serve as a deterrent to other staff to avoid being tardy and/or negligent in carrying out official assignments. An employee owes a duty of care to his employer hence same will uphold the sanctity and dignity in the course of official engagement this will virtually bring to fore accountability and discipline. Counsel urged the Court to dismiss the Claimant's suit in its entirety for lack of merit and to award a substantial cost including the full value in favour of the Defendant. Submissions on the Defendant’s Counter-Claim According to counsel for the Defendant, the Defendant’s counter-claim is for an order of this court directing the Defendant to dismiss the Claimant from its employment forthwith, for gross misconduct. In support of this, the Defendant repeated and adopted all the averments in the Statement of Defence relating to negligence on the part of the Claimant. Specific reference was made to paragraphs 3, 7, 14, 28, 29, 30, 31, 32, 33, 34 and 35 of the Statement of Defence and paragraphs 4, 5, 29, 30, 33, 34 and 35 of the Defendant’s witness statement on oath, the content of which the Claimant did not deny. Counsel in his final written address with respect to the Defendant’s counter-claim, submitted a sole issue for determination to wit: Whether the failure of the Claimant to record the receipt of the 8 Air Condition units which he received in the course of official duty that got missing amounts to gross misconduct which has undermined the confidence of the Defendant in the Claimant and therefore the Defendant is entitled to dismiss the Claimant from its employment. In arguing the sole issue, counsel submitted that the Claimant owes the Defendant a duty to protect its property in order to avoid preventable loss but he failed. See NRC vs. ABOMELI (supra) where the Court of Appeal held that where the employee lacks diligence and the employer suffers loss, the employee is guilty of misconduct. Having therefore failed to record and handover the received 8 air condition units professionally, the Claimant’s act amounts to misconduct, and the court should so hold. Counsel referred the court to the case of ARINZE vs. FBN LTD (2004) 12 NWLR (Pt. 888) 663 SC and submitted that in statutory as well as private employment where the accusation against the employee is of gross misconduct, there is no fixed rule defining the degree of misconduct that will justify a dismissal of an employee. It is enough if the conduct is grave and weighty as to undermine the confidence reposed in him by the employer. According to counsel, the facts and circumstances of this case are grave and weighty. Counsel cited the case of AJAYI vs. TEXACO NIG LTD (1987) 13 NWLR (Pt. 62) 577 SC, and submitted that the law is that when an employee is working against the deep interest of his employer as in the instant case, it amounts to gross misconduct entitling the employer to dismiss the employee irrespective of the condition of service. According to counsel, the act of the Claimant which the Defendant is complaining of amounts to negligence of duty sufficient enough to undermine the confidence of the Defendant in the Claimant. Citing the case of UBN vs. OGBOH (1995) 2 NWLR (Pt. 380) 647 SC, counsel submitted that where an act amounts to gross misconduct, the employee is liable to summary dismissal. Also citing OSAGIE vs. NBB PLC (2005) 3 NWLR (Pt. 913) 513 CA and NIGERIA ARAB BANK LTD vs. SHUAIBU (1991) 4 NWLR (Pt. 186) 45 CA, counsel submitted further that the Claimant by his conduct, showed lack of efficiency at work and lack of commitment to safeguard the interest of his employer in order to minimize financial losses and maintain the reputation and good will of the Defendant. Counsel urged the court to allow the Defendant’s counter-claim. Claimant’s Final Written Address Learned counsel for the Claimants in his Final written address filed on the 24th day of July 2017, set out the facts of the case and proceeded to raise the following two issues for the determination of the court: a. Whether the Claimant has proved his case with preponderance of evidence in view of the pleadings, evidence and exhibits tendered before the court to entitle him to all his claims before the Honourable Court. b. Whether the defendant is entitled to its counter-claim without cogent and credible evidence before the court. ISSUE ONE On issue 1, learned counsel for the Claimant submitted that it is trite law that a Claimant is to prove his case on the preponderance of evidence and it is the general and accepted principles of law that all civil cases or claims are proved on the balance of probabilities and preponderance of evidence. Counsel referred the court to the following cases: i. Ishola vs. Union Bank Ltd (2005) 2 SC (Pt. 11) 80. ii. Altiegbemilin vs. RTAG Nig. (2012) 44 WRN 120. iii. Iseogbekun vs. Adelakun (2013) All FWLR (Pt.664) Pg. 168 at 188 Counsel submitted that the claimant's case is basically documentary in nature, and in law, documentary evidence is the best evidence that the court can rely on. Counsel referred the court to the case of Obiazikwor vs. Obiazikwor (2007) 37 WRN 106 at 131. Relying on paragraph 1 of the statement of facts and paragraph 2 of the Claimant’s deposition of 2-12-2016, the Claimant who is said to be a Senior Accountant in the employment of the Defendant at its Port Harcourt centre, tendered Exhibit C7 - letter of appointment of 24-11-2009, Exhibit C8 - confirmation letter of appointment of 30-1-2012 and Exhibit C9 promotion letter. The Defendant admitted those facts in paragraph 1 of its statement of defence, and the facts were unchallenged. Counsel urged the court to accept it as such. Referring to paragraph 2 of the statement of defence counsel indicated that it was also not in dispute that there is a regulation governing the conditions of service of senior staff in April 2009 (Exhibit – C1) and schedule of duties for all study centre of 11-6-2010 – (Exhibit C2). According to counsel, the Defendant admitted virtually every averment and deposition of the Claimant in his statement of facts and deposition except the area of the outcome of the Disciplinary Committee and the management decision on the investigation. Still on issue one, Counsel proceeded to consider seriatim, the Claimant’s claims in his complaints, statement of facts and deposition, viz-a-viz the evidence before the Court. It is as outlined hereunder: Relief 1 In arguing the first relief, Counsel referred to paragraphs 7, 8, 9, 10, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35 and 36 of the Claimant's statement of facts and paragraphs 8 to 37 of the Claimant's deposition, as well as Exhibits C3, C4, C5, C6, C6(i), C 10, C11, C12, C13, C14, C15, C16, C17, and C18. Counsel also referred to the evidence of the Defendant's sole witness who under cross examination, answered in the negative, to the question put to him by the Claimant’s counsel as to whether the Claimant was incriminated by any of the staff of the Port Harcourt Centre during interaction with the committee. Counsel also submitted that the sole witness of the Defendant also admitted during cross examination that the Report of the committee i.e. Exhibit C4 was considered, and appropriate action was taken, and that the appropriate action taken in respect of the Claimant was what contained in Exhibit C13 which is the letter of recall of the Claimant from suspension. The same witness of the Defendant also during cross examination told the court when asked whether the Claimant at any time applied for salary advance and he answered "NO". Therefore, it is counsel’s argument that with the averments, depositions and exhibits cited above, the Claimant had successfully discharged the burden placed on him by law to entitle him to the claim. Citing the case of Mrs. Abdulrahaman Yetunde Mariam vs. University of Ilorin Teaching Hospital Management Board & Anor. (2013) 35 N.L.L.R. (Pt. 103) 40, Counsel submitted that it is very clear from the evidence before the court, especially the supportive evidence given by the sole witness of the Defendant during cross examination, that the Defendant is out to victimize the Claimant and to rope him into what he knew nothing about, and such action constituted an unfair labour practice. Counsel also cited the case of Ali vs. Bayero University (2014) 42 NLLR 258 at 303 - 304 were Hon. Justice F. I. Kola - Olalere held that "The essence of the National Industrial Court is not just "the enforcement of mere contractual rights but for preventing labour practices regarded as unfair (for which a vindictive suspension and a vindictive denial or refusal of promotion are but examples) and for restoring industrial peace" at the work place. This court when adjudicating must determine the "rights and wrong" of a claim made, and in doing so, the court is undoubtedly free to apply the principle of justice, equity and good conscience." Counsel urged the court to look at Exhibits C3, C4, C5, C13 and C6, C6 (i) with the evidence adduced by the Claimant which was not impugned during cross examination by the defence counsel but who instead strengthened the case of the Claimant. He urged the court to resolve and grant the first claim of the Claimant. Submissions on the Admissibility of Exhibits D7 and D8 Counsel recalled that leave had been granted to the Claimant to raise this objection at the address stage. He then submitted that the court cannot rely on Exhibits D7 and D8 on the ground that both were forged documents, and therefore inadmissible, by virtue of Section 104 (2) of the Evidence Act, 2011. The said Exhibits D7 and D8 have two features together. On the one hand, they are originals. And on the second hand, they are Certified True Copies C.T.Cs of the original. Counsel invited the court to look at Exhibits D7 and D8 closely, and that the court will find that it was stamped C.T.C. throughout, yet the signature of the signee is an original. According to Counsel, the two Exhibits i.e. D7 and D8 are public documents. Therefore, it is either the original or C.T.C. of the photocopy that can be tendered, and not both. In the case of Oyeniyi vs. Bakoye (2013) All FWLR (Pt. 694) Pg. 64 at 87 Ratio 1, the Court of Appeal held that is either the original of the public documents or the certified true copy that can be admitted in evidence. Counsel also referred the court to S. 104 of the Evidence Act, 2011. Still on the inadmissibility of Exhibits D7 and D8, Counsel invited the court to look at Pages 93 and 106 of the bundle of documents filed by the Defendant with the Statement of Defence on 21st March, 2017. The said documents now marked Exhibits D7 and D8 were not signed at all, and the law is settled that no probative value can be attached to unsigned documents in law. Counsel relied on the case of Omega Bank Nig. Plc vs. O.B.C. Ltd (2006) 4 WRN 1 at 42, per Tobi JSC (as he then was), where it was held that "A document which is not signed does not have any efficacy in law. As held in the cases examined, the document is worthless and a worthless document cannot be efficacious ....." It is more confusing that the same documents attached to the originating processes in the bundle were also marked as "Certified True Copy". He referred the court to Pages 89 and 102 of the bundle of documents in court records, and argued that the court has the right in law to look at the documents in the files. Counsel contended that if documents filed before this court in March, 2017 purported to be C. T. Cs. of the original were not signed, how did the one tendered before the court in June, 2017 from the same source get signed? It is Counsel’s submission that apart from the above, the documents, Exhibits D7 and D8 were purportedly signed by somebody who did not attend the meeting, and also not the secretary that took down the minutes. He invited the court to look at the purported attendance list where the signee "Felix Edoka" was not in attendance and he was not the Registrar and Secretary. According to Counsel, the Registrar and Secretary was Mrs. Josephine O. Akinyemi. These facts were confirmed by the Defendant's sole witness during cross examination when he stated that Felix Edoka was not the Secretary and was nowhere close to the venue of the meeting; and also, that the Chairman and Secretary used to sign minutes of meeting. Also, counsel submitted that Exhibits D7 and D8 were not properly certified in accordance with the provision of S. 104 (2) of the Evidence Act, and also, both documents were purported extracts from the minutes of meeting, and the original is not before the court to compare the extract with. Counsel submitted that Exhibits D7 and D8 upon which other exhibits like D3 (a) & (b), D4, D5 and D6 were based, were all prepared in hurry for the purpose of this case, just like Exhibits D7 and D8. He then urged the court to grant relief 1 of the Claimant. Reliefs 2 and 3 Counsel argued claims 2 and 3 together, and he adopted the Claimant’s submissions with respect to Relief 1 above. Counsel also relied on the averments in paragraphs 17, 18, 19, 20, 21, 23, 24, 25, 26, 27, 28, 30, 31, 32, 34, 35 and 36 of the statement of facts and paragraphs 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36 and 37 of the deposition of the Claimant attached to his statement of facts, as well as paragraph 2(j), (ix), (x), 3(i), (ii), (iii), (iv), (v), (vi), (ix), (xi), (xii) of the Claimant’s Reply to the Defendant's statement of defence and counter-claim. Also paragraphs 11, 12, 13, 14, 15, 16, 17, 18, 19, 21, 22, 24, 25, 26 and 29 of the Claimant’s further statement on oath. According to counsel, the Claimant established both in his pleadings, his evidence and even during cross examination, that after the submission of the only disciplinary committee Report Exhibit C4, and consideration of same by the appropriate authorities, Exhibit C5 was served on the Claimant. The Defendant in Exhibit C5, not only recalled the Claimant, but ordered the Bursar to pay all salaries deduction done on the Claimant's account. The Claimant in his Reply to the Statement of Defence/Defence to Counter-Claim, especially in paragraph 2(j), (ix), (x) and (xi), categorically denied the setting up of any other Disciplinary Committee by the Defendant to investigate the same case for which the Claimant had been exonerated. To counsel, according to Exhibit C 1, especially Section 3.2.1, the power to exercise disciplinary control over members of staff of the University are vested in both the vice-chancellor and the University council. The vice-chancellor is also a prominent member of the council. Section 3.2.3 provides that when the vice-chancellor received report on any staff, the vice-chancellor would conduct enquiries as he may deem fit and "shall take an appropriate action and report to council.” Section 3.2.3 of Exhibit C1 is very clear that the vice-chancellor on any matter is the one that can take necessary action and the vice-chancellor reports any action taken so far on the issue of discipline of staff to the council i.e. to give report of what he has done so far to the council and nothing more. According to counsel, it is only when the affected staff of the decision taken by the vice-chancellor and reported to the council, it is when the affected staff appeals to the council that will necessitate the council to look at the action that the vice-chancellor has already taken on the issue and set up a Disciplinary and Appeals Committee of council. On this point, counsel referred the court to Section 3.2.4 of "Exhibit C1". Counsel also made copious reference to Section 3.3 of Exhibit "C1" on discipline, which provides for the types of Disciplinary measures, and Section 3.3.1 of Exhibit "C1" which provides as follows: "The disciplinary measures which may be invoked against an erring member of staff are as follows: i. Verbal warning/reprimand. ii. Query/written warning. iii. Denial or withholding of increment. iv. Suspension. v. Interdiction. vi. Termination/Dismissal. According to Counsel, Section 3.3.1 (iv) of Exhibit "C1" was the disciplinary measure invoked in the case of the Claimant by the Defendant, and from the provisions of the said paragraph, the decision of the management, headed by the vice-chancellor, is the final. Counsel quoted the said section 3.3.1 (iv) as follows: "Suspension – whenever in the opinion of the vice chancellor, a prima facie case of misconduct has been established against a member of staff, and it is necessary to investigate the matter further with a view to determining the guilt or otherwise, as well as appropriate disciplinary action to take, the member of staff concerned may be suspended pending the determination of the case". The Registrar shall convey in writing, Notice of suspension to the officer concerned ("Exhibit C12.") If an officer is on suspension, he/she shall be on half salary for the duration of suspension. When an officer on suspension is cleared of the alleged misconduct, he/she shall be reinstated and the balance of his/her salary earlier withheld shall be paid to him/her." Following the above provision, Counsel argued that, it is an elementary principle of interpretation of statute that where a statutory provision is clear and unambiguous as to its true intent and purpose, effect must be given to it without recourse to any internal or external aid. See (i) Nwagu vs. Chima (2012) 3 WRN Pg. 89 at 102. (ii) PDP vs. INEC (2012) 16 WRN Pg. 73 at 89. According to counsel, Exhibit C1 is very clear on discipline of senior staff on the following issues: a) Both the vice-chancellor and the council have the power to discipline erring staff i.e. section 3.2.l. b) That it is the vice-chancellor who has the power and the duty to conduct enquiry into the matter as he deem fit. c) That it is still the vice-chancellor who can take appropriate action on the matter. d) That the vice-chancellor after he must have taken the action in respect of the matter will now report the action he has taken to the council. i.e. Section 3.2.3 of Exhibit "C1". e) That the only reason the council can revisit the matter that the vice-chancellor has taken action is if there is an appeal against that action by the affected staff and that is why the council has a statutory committee. i.e. Section 3.2.4 of Exhibit "C1". f) That in the case at hand, the vice-chancellor as the head of the management as provided by Exhibit "C1" in Section 10. 1. 1 which states as follows: "The vice-chancellor, as Chief Executive of the University, acts both as the Administrative and Academic Head of the University" The vice-chancellor first of all suspended the Claimant, set up Disciplinary Committee who investigated and produced Exhibit C5 which was submitted to the vice-chancellor, and the vice-chancellor and management of the Defendant considered the outcome of the report and recalled the Claimant from suspension, and in accordance with the provision of Section 3.3.1(iv) of Exhibit C1, cleared the Claimant from the alleged misconduct, reinstated him and paid his withheld salaries." g) That the Claimant did not appeal against the action of the vice-chancellor, and the Defendant throughout its pleadings and evidence both orally and documentary, did not state that any of the affected staff of the Defendant appealed to the council against the action of the vice-chancellor. h) That the Defendant did not set up Disciplinary and Appeals Committee of council as provided for in Section 3.2.4 of Exhibit "C1". i) That the only disciplinary measures the Defendant can take against any erring staff is as provided for in Section 3.3.1 of Exhibit "C1". Following the above argument, Counsel proceeded to submit as follows: a) That the vice-chancellor as the head of the management has cleared the Claimant of any alleged misconduct. See Exhibit "C13" which is very clear. b) That the Claimant or any of the affected staff did not appeal to the Defendant's council. c) That the only committee expected to be set up by the council of the Defendant anytime the vice-chancellor reports any action taken is "Disciplinary and Appeals Committee, because the paragraph used the word "Shall", which does not entertain discretion but compulsion. Counsel cited the case of Agbiti vs. Nigerian Navy (2011) 13 WRN 1 at 36, per Adekeye JSC, where it was held as follows: "The statutory interpretation given to the word "shall" by the court gives the connotation of a word of command or exhortation. It denotes obligation and gives no room for discretion. Therefore, the word "shall" engaged in Sections 129 and 133 of the Armed Forces Act gives the unmistakable impression that what was done is mandatory and peremptory." d) That there was no evidence of pleadings before the court that there was an appeal by any of the staff including the Claimant, and there was no evidence that "Disciplinary and Appeals committee” was set up. e) Also there was no evidence especially documentary evidence before the court that the council or "Disciplinary and Appeal Committee" or any other committee at all invited the claimant to appear before it as required always, especially in compliance with the provisions of Section 14 of the National Open University Act, CAP N63, LFN, 2004. There must be a notice to the affected staff and none was served or communicated to the Claimant by the Defendant, and the Defendant did not even call anybody who claimed to have communicated the existence and expected appearance to the Claimant, of the sitting of the second Disciplinary Committee. Also, Dr. Alimi and Mrs. Ezebuiro whom they claimed also appeared before the second Disciplinary committee, are still staff of the Defendant, and none of them were called by the Defendant to establish the fact that there was a second Disciplinary Committee, and to contradict the Claimant on the issue of forged report of the second purported committee. f) That the Defendant was just acting the script of Mrs. Florence Ezebuiro to whom the Claimant referred, in paragraph 36 of the statement of facts as follows: "The said Mrs. Florence Obianuju Ezebuiro called the Claimant and told him that she is connected with the management and council of the Defendant, and that they would ensure that the Claimant pays fully for the eight missing Air Conditioners, and thereafter dismissed after the full deduction of the value of the eight units Air conditioner from his salaries." g) The Defendant did not contradict the averment in paragraph 36 of the statement of facts at all; and it is the law that any facts in a pleadings must be specifically traversed and denied, not a general denial. To counsel therefore, in the absence of such specific traverse or denial, the defendant has admitted this fact, and there is no need for an admitted fact to be proved again. He referred to the case of O.A.U. & Ors vs. Gidado (2015) 53 NLLR 158 at 182-184. And the case of Popoola vs. Owena Press Ltd (2011) 52 WRN 85 at 112 per Uwa JCA, where it was held as follows: "It is trite that pleadings ought not to be evasive; it must be cogent and pungent. The reason is that it should settle the issues to be tried. " "Denial or traverse in pleadings must be frontal and direct .... Where an allegation in a statement of claim is not denied specifically or by necessary implication, or stated not to be admitted in the statement of defence, it shall be taken as admitted." h) According to Counsel, with both the oral and documentary evidence before the court, the Claimant has proved his entitlement to his claims 2 and 3 in the statement of facts, and is entitled to same. He urged the court to so hold. Citing the case of John vs. University of Ilorin (2012) 41 WRN 82 at 105-107, counsel submitted that the Claimant’s employment with the Defendant enjoys statutory flavor, and therefore, every condition set out in the statute must be strictly complied with. Reliefs 4 and 5 In arguing the claims for reliefs 4 and 5 together, counsel referred to Paragraphs 26, 27, 28, 29, 30, 31, 35, 36 and 37 of the Claimant's 1st written deposition and Paragraphs 25, 26, 27, 28, 29, 30, 31, 34 and 35 of the Statement of Facts as well as Paragraphs 3 (iv), (v), (vi), (vii), (viii), (ix), (x) and (xi) of the Claimant’s Reply to the Statement of Defence and Counter-claim. According to Counsel, from the evidence contained in the above paragraphs, the following are very clear: a) That the Claimant did not participate the stealing of the missing Air conditioners. Exhibits C5 and C 13 refer. b) That the Claimant was not aware of any other Disciplinary committee of the council as it is very crystal clear from the evidence before the court from both parties that the claimant was not aware of any sitting of any other committee. The only committee notified the Claimant of its sitting and the Claimant appeared before it. Also, the Defendant communicated to the Claimant the outcome of the only committee that looked into the matter, in accordance with Exhibit C1 and NOUN Act; while there was no evidence of such in respect of the purported Disciplinary committee of the council which did not comply with Exhibit C1 and NOUN Act. c) That the Claimant was never informed of any deduction from his salaries by the Defendant; which necessitated the Claimant to send Exhibits C14, C15 and Exhibits C6, and C6 (i) to the Defendant. d) That the Defendant throughout the proceedings in this matter did not exhibit or tender before this court, payment slips of Dr. Clifford Amini or that of Mrs. Obianuju Ezebuiro to show that there was a deduction under "SALARY ADVANCE." e) There was never any evidence before the court that the Claimant collected loan or salary advance that can necessitate the deduction from the Claimant's salary; and by the provision of Section 8.2 of Exhibit C1, salary advance can only be implemented if there is an agreement between the Claimant and the Defendant. Further to (a) to (e) above, Counsel submitted that the deduction is illegal in law, and the Claimant is entitled to a refund of the sum of N21,112.00 monthly deduction in the name of "salary advance" from the month of September 2016 to the month of November 2016, totaling N63,336.00, and the subsequent monthly deductions of the sum of N21,112.00 from the month of December 2016 to the date of judgment He referred to paragraphs 34, 35 and 36 of the Statement of Facts on the sole ground of no agreement between the Claimant and Defendant on such. See also Section 8.2 of Exhibit C1. According to counsel, the Claimant has fully discharged the onus placed on him by both depositions and documentary evidence such as Exhibits "C6", "C16", "C17", "C18", and "C14". He urged the court to grant Reliefs 4 and 5 of the Claimant's claim. Submissions on the Admissibility of Exhibits D3(a), D3(b), D4, D5, and D6 Counsel referred to the documents simply marked as Exhibits "D3 (a), D3(b), D4, D5 and D6" and pointed out that the Claimant had specifically denied those documents and had categorically stated that he did not receive them, nor was he aware of any of the purported actions of the Defendant's council and any another Disciplinary Committee sitting or recommendation or resolution. While Exhibits D3(a), D3(b) and D4 were admitted in evidence during trial on the 7th day of June 2017 without objection, Counsel for the Claimant had on that day, raised objection to the admissibility of Exhibits D5 and D6. The court simply marked them as such, and granted leave to the Claimant to raise and argue his objection to Exhibits D5 and D6 at address stage. Earlier in the Claimant’s final written address, counsel had extensively put out arguments relating to Exhibits D7 and D8. It is as summarized under the Claimant’s Relief one above. Nevertheless, counsel has raised further arguments with respect to documents which he says were simply marked as Exhibits D3(a), D3(b), D4, D5, D6, D7 and D8 on the following grounds: a) All the documents marked as stated above are secondary documents because they were marked "Certified True Copy" by either the Registrar NOUN, or Bursar NOUN. b) The Defendant did not show proof of service or notification of the processes on the Claimant in respect of Exhibits "D3(a), D3(b), D4 and D6." In further argument, Also, counsel cited Section 104 (2) of the Evidence Act, 2011 which provides that: “The certificate mentioned In subsection (1) of this section shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies." Counsel called the court’s attention to Exhibits D3 (a), and (b), D4, D5, D6, D7 and D8, which were all marked “certified true copy”, and submitted that none of the said Exhibits were made in compliance with the provision of S.104(2) of the Evidence Act, 2011. In the case of Oyeniyi vs. Bukoye (2013) All FWLR (Pt. 694) Pg. 64 at 85 - 87 paras C - D, Ratio 1, the Court of Appeal held that a photocopy of a public document to be known as certified true copy shall be duly dated and subscribed by the issuing officer with his name and his official designation, and that it is only documents that complied with this requirement that can be tendered as certified true copy, except originals which require no such certification. Where a document tendered was not properly certified, the court must reject same. Also in the case of Adeyefa v Bamgboye (2013) ALL FWLR (Pt. 673) Pg. 1832 at 1842 SC, Fabiyi JSC held that the certification expected to be endorsed on the said copy shall be dated and subscribed by such officer with his name and official title, and shall be sealed. According to counsel, all these documents referred to above were not dated and the officer who subscribed to them did not put his name. On this ground alone, he urged the court to reject Exhibits "C3 (a) and (b), D4, D5, D6, D7 and D8." Counsel also submitted that the Defendant did not state how Exhibit D4 was served on the Claimant, and how Exhibit D3 (a) and (b), D5, D6, D7 and D8 were communicated to the Claimant. The Defendant only stated that Exhibit D4 was served on the Claimant; a fact which the Claimant denied in his paragraph 3 (viii) of reply, Exhibit C6 and paragraphs 30 and 31 of his statement of fact. The Defendant also did not state how the said Exhibit D4 was served, and neither did he show an acknowledgment copy of the document nor show the delivery book where the Claimant signed. They also did not call the person who served same on the Claimant to testify to that effect or to show how he served the letter or delivery slip tendered. According to counsel, these are the ways the Supreme Court said the Defendant can discharge the onus of service of documents where service is denied by the other party. In respect of other exhibits above, counsel submitted that the Defendant only stated that the Claimant was informed on the phone. Counsel referred the court to paragraphs 24 and 28 of the statement of defence, a fact which was contradicted by Exhibit D6 which one of the documents to which objection has been raised. Paragraph 5 of the said Exhibit D6 reads as follows: "Mr. Babatunde Ajayi was informed before and after the proceeding on telephone as a result of various enquiries from him." From the above, to counsel, it is very clear that the Claimant was never notified about the constitution of a new panel or the outcome of such panel or resolution of the council of the Defendant or the implementation of the same by the Bursar of the Defendant. It is trite law that for the Defendant to prove and discharge the burden placed on it, it ought to state the names of the persons that called and informed the Claimant of the constitution of a new panel, state the date and time when the calls were made, and also get telecommunication providers’ call logs for those dates, since the Claimant denied such, but the Defendant did not do any of the above. Counsel urged the court to discountenance all the above mentioned exhibits of the Defendant and grant the claims in reliefs 4 and 5 of the Claimant. Reliefs 6 and 7 With respect to reliefs 6 and 7, Counsel for the Claimant adopted intoto, all his earlier arguments with respect other claims, and argued further that perpetual injunction is based on final determination of the rights of parties, and it is intended to prevent permanent infringement of those rights and obviate the necessity of bringing action after action in respect of every such infringement on the same issues and facts. He referred the court to the pronouncement per Adekeye JSC in the case of Anyanwu vs. Uzowuaka (2009) 49 WRN 1 at 42 and the cases of Oguejiofor vs. Nwakalor (2011) 34 WRN 135 at 152 and Ogunleye vs. Oke (2009) 39 wrn 77 at 136. He also referred to paragraphs 35 and 36 of the statement of facts and paragraphs 28 and 39 of the statement of defence especially paragraph 28 of the statement of defence and which reads thus: "The Defendant avers that in spite of this elaborate explanation the Claimant was not satisfied and filed this suit." According to counsel, it is very clear that if the Defendant is not permanently restrained by an order of court, the defendant would continue with the deduction of the cost of the missing 8 Air conditioners, and terminate or dismiss the Claimant from the service of the Defendant based on the same missing Air conditioners for which the management in compliance with the Regulations of the Defendant has already exonerated the Claimant. In other words, the Defendant wants the Claimant to pay for the lost Air conditioners and yet at the end of the day, dismiss him without following the laid down procedures both in the NOUN Act, CAP. N63 and regulations i.e. Exhibit C1. Counsel urged the court to grant the reliefs in claims 6 and 7 of the complaint. Reliefs 8 and 9 With respect to Relief 8, counsel submitted that cost follows event. He cited the case of Buhari vs. Obasanjo (2005) 2 NWLR (Pt. 910) Pg. 241 at 602, per Nsofor JSC, where it was held as follows: "Cost are not imposed as a punishment on the party who pays them, nor are they awarded as bonus to the party who received them. No. See P.O.S. Olasope vs. National Bank of Nigeria & Anor (1985) 3 NWLR (Pt. 11) 147. The party entitled should only be indemnified for his out of pocket expenses and be compensated for the time and fair expenses for the litigation. Therefore, I have taken into consideration inter alia, the length of the trial almost two (2) years, and the number of appearances. See Harold vs. Smith (1957) All ER 1229, 1231." Counsel also submitted that the award of cost is always at the discretion of the court, which discretion must be exercised both judicially and judiciously. He referred the court to the case of F. A. Akinbobola vs. Plisson Fisko Nig. Ltd & Ors (2004) 22 WRN 52 and the case of Master Holdings (Nig) Ltd vs. Okefiena (2011) 38 WRN 50 at 73. He went further that the essence of cost awarded are meant to have some cushioning or palliative effect on the financial burdens of the party in victory. See Reg. Trustees of Ifeloju vs. Kuku (1991) 5 NWLR (Pt. 189) 65. On Relief 9 being the claim of the Claimant for 10% post judgment interest, counsel submitted that Order 47 Rule 7 of the NICN Rules 2017 provides for interest at a rate not less than 10% per annum on the judgment sum as seen in the case of Modibbo vs. Hammanjoda (2014) 38 WRN 110 at 131 - 132, per Jauro JCA, where it was held as follows: ".... The 10% interest awarded by the lower court is a post judgment interest and falls within the powers conferred upon the court by the above provision to award at its discretion. The court is therefore clothed with jurisdiction to award the 10% post-judgment interest." It is counsel’s submission that this court has jurisdiction to award post-judgment interest above 10% See Akaigwe vs. Champion News Papers Ltd & Anor (2014) 42 NLLR Pg. 234 at 256 where this court awarded 15% post-judgment interest. Counsel urged the court to hold that the Claimant has proved and established his claim to reliefs 8 and 9 of his claims and to grant same. And also, that the Claimant has proved his case with preponderance of evidence as required in law. He urged the court to resolve issue one in favour of the Claimant. ISSUE TWO On Issue 2, counsel submitted that the counter-claim is a distinct case on its own and it is an independent suit. He referred the court to the cases of Anambra State Govt. vs. Gemex Inter. Ltd (2011) 15 WRN 77 and Orji vs. Iloputaife (2011) 45 WRN 134 and contended that it is trite law that a counter-claim must be proved to the satisfaction of the court with credible and cogent evidence. See Nig. Ports Plc vs. Duncan M.V. (Nig.) Ltd (2011) 6 WRN 88. The claim of the Defendant/Counter-Claimant in this case is as follows: "AN ORDER of this honourable court directing the Defendant to dismiss the Claimant from its employment forthwith, for gross misconduct." The jurisdiction of this honourable court is provided for by S.254 C (1) and (2) of the 1999 constitution (3rd Alteration) Act, 2011 (as amended), and Section 7 of the National Industrial Court Act, 2006. There is nowhere in these laws is the court conferred with jurisdiction to grant the sole claim of the Defendant/Counter-Claimant. Assuming but not conceding that the court has jurisdiction over the sole claim of the counter-claimant, counsel submitted that there is no credible and cogent evidence before the court to warrant the grant of the claim. For the counter-claimant to succeed with its lone claim, the following must be established with credible evidence in accordance with Exhibit C1 which is what governs disciplinary procedures and discipline. Counsel referred the court to Section 2.0 to 3.3 and 9.16 and S.14 (1) of NOUN Act. a) There must have been an offence committed by the Claimant/Defendant to the counter-claim known to Exhibits C1 and C2 and in relation to his duties as an accountant. b) The Claimant must have been notified in writing of the ground of the intending termination or dismissal. c) The Claimant must have been afforded opportunity of making representations in person on the matter to the council: and d) The Council of the Defendant will form a joint committee of the council and the senate to investigate the matter and to report to the council and: e) The Claimant must have been given opportunity to appear before the committee, and the council after consideration of the report may remove the Claimant by an instrument in writing signed on the directions of the council. f) The Defendant has a duty to cause a copy of the instrument to be served on the Claimant. In respect of (a) - (f) above, the Defendant throughout its pleading did not establish anything at all. The only committee that notified the Claimant of its sitting and the Claimant appeared and made representation clearly stated in Exhibits C4 at Page 3 that the Claimant was not party to the removal of the missing Air condition units as there was no substantiated evidence to that. From paragraph 1 to 39 and 1 to 4 of the Defendant's pleading, there was no where it was established that the Claimant was part of the people that removed the eight Air conditioners. The defendant, even the only committee missed the point on the issue that the claimant did not hand over to the store officer professionally. Counsel referred to Section 9.l.6 (ii) of Exhibit C1 which provides as follows: "If the employee in relation to his or her duties is guilty of misconduct, gross inefficiency, inability to perform or willful refusal to carry out obligation or duties to the University." The Claimant in paragraph 2 of his reply to the statement of defence and counter-claim stated his duties. The Claimant's duty is also clearly stated in Exhibit 2. Therefore, it is not possible for the Claimant to issue Exhibit D1 (a), (b) and (c) since he was an accountant, and the Port Harcourt Centre has a store officer of CONTISS 08. Besides, those documents were sensitive documents which the only witness to the Defendant, during cross examination, admitted that Exhibits D1 (a), (b) and (c) were always in possession of the store officer, not any other person. Citing Exhibit C2, counsel submitted that perhaps if Port Harcourt Study Centre did not have a Store Officer of CONTISS 06 and above, it may have been possible for an accountant to do the duty of a store officer; then the Claimant would have been in possession of Exhibits D1 (a), (b) and (c). According to counsel, the only witness of the Defendant answered an emphatic “NO” to a question put to him under cross examination as to whether anybody indicted the Claimant during the sitting of the Disciplinary panel. That is to say the Claimant was not indicted. Also, when asked under cross-examination, whether after submission of the committee report, whether appropriate action was taken on the report in respect of the Claimant, the defendant’s witness answered "YES", and that the appropriate action taken was what was contained in Exhibit C13. i.e. letter of recall from suspension and letter of advice. It is the submission of counsel for the Claimant that the evidence elicited from DW1 contradicted his evidence in his witness deposition and statement of defence. Counsel referred the court to paragraphs 5, 15 and 16 of the deposition. Counsel went on that evidence elicited during cross examination is admissible in law, as seen in the case of Maduka vs. Anyadiegwu (2015) 8 WRN 132 at 156. Citing the case of Federal Mortgage Finance Ltd vs. Ekpo (2014) 41 NLLR Pg. 489 at 522, counsel submitted that if evidence given by DW1 in his deposition contradicted the evidence elicited from him during cross examination as in this case, it is not the duty of the court to pick and choose which evidence to believe. According to counsel, the witness’s evidence was incoherent. In one breath, he said the Claimant was indicted. In another breath, he said NO the Claimant was not indicted, and that he was recalled from suspension and paid his withheld half salary etc. Citing the dictum of Rhodes-Vivour JSC in the case of Alahassan vs. Ishaku (2016) 9 WRN 1 at 24 lines 20-25, Counsel went on that it is a long position of the law that a party should be consistent in stating his case in his pleadings and consistent in proving it. He would not be allowed to take one stand in his pleadings and the opposite during trial." Objection to the admissibility of Exhibit D1(a), (b) and (c) Counsel sought the leave of the court to object to the admissibility of Exhibits D1 (a), (b) and (c). According to counsel, notwithstanding that they have been admitted by consent, the court has the power and duty to expunge inadmissible evidence and exhibits during judgment. He referred to the case of Alahasan vs. Ishaku (supra) at Pg. 8 and also the case of Nwogu vs. Atuma (2013) All FWLR (Pt. 693) 1896 Ratio 1. Counsel pointed out that the said exhibits were not dated at all, and the Defendant did not call the Bursar to come and explain why the documents were undated and unsigned. It was only stamped with the signature of the officer that certified the documents. Counsel urged the court to look at the exhibits, and to observe that the documents (Exhibits D1 (a), (b) and (c)), in their original form were not signed or dated. Citing the case of Wodi vs. Differential Aluminum and Steel Co. Ltd & Anor (2014) 42 NLLR 29 at 88 - 89 Ratio 9, counsel submitted that it is the law that an undated document is invalid except proved by oral/parole evidence the reason why the date was left out. Counsel referred the court to the following cases; (i) OCTA Edu. Ser. Ltd vs. Padson Ind. Ltd. (2012) 47 WRN 102 at 132. (ii) Gbadamosi vs. Biala (2015) 10 WRN 112 at 127. (iii) Omega Bank Plc vs. OBS Ltd. (2006) 4 WRN 1 and submitted that unsigned documents are just worthless papers that have no evidential value at all. Counsel again urged the court to expunge Exhibits D1 (a), (b) and (c) from the record of the court on another ground; that is, that it was not properly certified. No date, and the name of the officers was not subscribed on them. Counsel referred the court his earlier argument on invalid certification and Section 104 (2) of the Evidence Act, and submitted that the exhibits are worthless document without any value attached to it. Counsel acknowledged that there is a different between admissibility of document and weight to be attached to it, but insists that Exhibits D1 (a), (b) and (c) are both inadmissible in law on the grounds of no date and non-compliance with Section 104 (2) of the Evidence Act, and also, no weight can be attached to them because the original was not signed at all. See the case of U.T.C. (Nig.) PLC vs. Lawal (2014) 5 WRN 1 at 25 per Kekere-Ekun JSC, where it was held as follows: "The admissibility of a document is different from the probative value to be attached to it. While admissibility is based on relevance, probative value depends not on relevance but also on proof." Counsel urged the court to hold that the Claimant did not any commit offence in relation to his duties and that in the absence of an appeal to the council, the decision of the vice-chancellor as the head of management stands, and the action taken in Exhibit C5 is the action. Counsel submitted that the employment of the Claimant is with statutory flavor, and there must be full compliance with both Exhibit C1 and NOUN Act. Further, counsel submitted that there is no single evidence or document before the court to show that the Claimant was notified in writing of the ground of his termination or dismissal as prayed for in this matter by the Defendant. Counsel referred to the statement of defence of the Defendant. Apart from Exhibit D2 which counsel sought the leave of the court to object to on the ground that it was not properly certified in law as required by S. 104 (2) of the Evidence Act, also it was not dated and last one was that it was prepared for this case and that is why so many contradictions are in the documents for example in paragraph 2 of page 3 line 3 it was stated as follows: "He told the committee that in June 2016 he discovered that eight (8) Units were missing. Secondly the council meeting was held on 2-6-2016 while the report was submitted on 3-6-2016. " Counsel submitted that the witness during cross examination tried to explain the discrepancy in the two dates but it is an elementary law that you cannot contradict written document with oral evidence. Also the explanation of the witness that the report was prepared before, and that the meeting was brought forward was, according to counsel, not pleaded in its copious statement of defence. Counsel submitted that it is trite law that any evidence not pleaded goes to no issue including the evidence elicited during cross examination, except if the other party pleaded such facts, as seen in Maduka vs. Anyadiegwu (2015) 8 WRN 132 at 156 per Oredola JCA, where it was held as follows: " .... Thus, the law is basic on the point that, provided it is pleaded by either of the parties, evidence elicited under cross examination is proper and admissible. Thus, it could be utilized by the trial court in the adjudication/determination process. I accordingly hold that the evidence given by the respondent though extracted under cross examination having been duly pleaded and relevant to this case was rightly admitted and relied upon by the learned trial Judge." It is the law that a disciplinary committee report is inadmissible in law except if it has been properly adopted by the management or council. Counsel urged the court to expunge Exhibit D2 from the records of the court. Counsel further submitted that there is no evidence before the court that the Claimant appeared before the council. Also, there was no instrument signed or served on the Claimant by the Defendant. While the Claimant specifically denied and stated in paragraph 3 (iv), (xii) and 4 (iii) of the Reply to the statement of defence and counter-claim. In the case of Saibu vs. Kwara State Poly, Ilorin (2009) 27 WRN 120 at 160 lines 25 - 30 per Sankey JCA the court held as follows: “It is well settled that where any disciplinary action is to be taken pursuant to any statute, law or rule, there must be full compliance with such or any of them as required, before the disciplinary action can be properly based or justified." Counsel also referred to the case of Oloruntoba-Oju vs. Abdul-Raheem (2009) 26 WRN 1 at 57 where per Adekeye JSC held as follows: "In order to justify the dismissal or termination of appointment of an employee, the employer must be in a position to prove to the court's satisfaction…" a. That the allegation was disclosed to the employee; b. That he was given a fair hearing; c. That the council believed that the appellant committed the offence after hearing witnesses. See also Federal Medical Centre vs. Kolawole (2012) 4 WRN 138 at 151 per Uwa JCA, where it was held as follows: "A public servant/officer can only be validly removed if the proper procedure prescribed by the rules has been followed." Counsel submitted that the Defendant did not follow the proper procedure to remove the Claimant from office as stipulated in Exhibit C1 and NOUN Act. Counsel urged the court to hold that the Defendant is not entitled to its counter-claim or the reasons canvassed, and to dismiss same with cost. In conclusion, counsel reiterated each point earlier made seriatim, and urged the court to grant all the claims of the Claimant. Claimant’s reply to issues raised by the Defendant in its Final Written Address In reply to paragraphs 3.0 - 3.8 of the Defendant's submission on EXHs D5 - D8, the Claimant’s counsel adopted their argument on these documents above based on non-compliance with S. 104 (2) of the Evidence Act, 2011. The documents especially Exhibits D7 and D8 were originally signed, not a photocopy, also the copy attached to the statement of defence is different, as the originals were not signed at all. Counsel urged the court to look at pages 73 and 106 of the documents attached to the statement of defence. On this point, he cited the case of Oyewole vs. Akande (2009) 30 WRN 1 at 28 Ratio 6. Counsel also submitted that the court cannot pretend not to see a document before it; especially documents contained in pages 73 and 108 of the documents attached to the statement of defence which were undated and unsigned and which was also C.T.C. of the original. See the case of Magogo vs. CPC (2013) All FWLR (Pt. 685) 272 at 276 Ratio 3. In reaction to the assertion by learned counsel to the Defendant to the effect that extracts of a document can now be admitted in law, and counsel’s reference to the cases of CBN vs Amao (supra) and Oluwale Olatunji vs. ITF Governing Council & Anor unreported Suit No: NICN/CA/60/2015, counsel submitted that the issue of admissibility of an extract was not part of the issues decided by the Supreme Court. Also, a painstaking search by counsel was unsuccessful in getting the unreported judgment in Suit No: NICN/CA/60/15. Counsel however submitted that there is no way Hon. Justice Kanyip J. who had given an erudite judgment earlier in the case of Omoshen vs. Crowns Relocations (Nig.) Ltd (2015) 53 NLLR 188 can admit such an extract or excerpts. On the same issue, counsel submitted that with the dictum of per Kanyip J at Pg. 257, paras B-F, the court in that case reasoned that because the complete set of the documents were extracted, they were not shown to the court in order to ascertain that they are indeed part of the documents they professed to be, or to enable the court to ascertain whether there are any other provisions of the company documents that go contrary to the provisions canvassed by the party relying on them, so the extract have no evidential value and so were discountenanced by the court. The Claimant herein ought therefore to show this court the fuller documents from which Exhibit D1 was extracted, as it is clear that Exhibit D1 is not an extract of Exhibit C12 as the Defendant would want the court to believe. Counsel urged the court to discountenance Exhibits D7 and D8. In reply to the issue canvassed by the Defendant in paragraphs 4.3 - 4.11 of their final address, Counsel adopted the Claimant’s argument in issue one. He pointed out that the Claimant has adequately controverted the issue, so it is wrong for the Defendant to have claimed that those facts were not contradicted. According to counsel, it is an elementary law that the submission of counsel cannot take the place of pleading and evidence. See the case of Obitunde vs. Onyesom Community Bank Ltd (2014) 36 WRN 1 at 30 - 31. Counsel argued that the claimant have shown with credible evidence which was not even impugn during cross examination, of his entitlement to all his claims with documents and oral evidence. Also, counsel submitted that the Claimant at no time was adjudged to be negligent by the committee that investigated the case, not to talk of gross misconduct. Counsel urged the court to discountenance the submission of the Defendant in paragraphs 4.00 - 4.11. In respect of the submission of the Defendant in paragraphs 6.1 - 6.6 of the defendant's final written address, counsel adopted the Claimant’s submission on issue one, and replied further by saying that the Claimant placed sufficient evidence before the court to show that the committee and the management did not ask the Claimant to be surcharged for the value of the missing items, and the Claimant was adjudged not to be part of the stealing; so it was not a speculation, but clearly put in black and white in Exhibits C5 and C13. Counsel submitted in respect of paragraph 6.3 of the Defendant's final written address, that there is no quotation like that in Exhibit C1 and NOUN Act. The vice-chancellor in accordance with Section 3.2.3 of Exhibit C1 was to conduct enquiry as he may deem fit, and take an appropriate action, and later report to the council, not the way the Defendant put it, to confuse the court, by removing the power of the vice-chancellor to take appropriate action before reporting the action taken so far to the council. In response to paragraph 6.5, counsel submitted that Exhibit D2 was not presented on the 21-6-2016 to the University council, but purportedly presented on 3-6-2016. He urged the court to discountenance this paragraph 6.5 of the defendant's final written address. Counsel also urged the court to discountenance paragraph 6.6 of the final written address of the Defendant on the ground that the submissions there were not supported by pleadings. Also, those paragraphs mentioned were seriously controverted by the Claimant in his Reply to the statement of defence and defence to counter-claim, at paragraphs 3 (i), (ii), (iii), (iv), (v), (ix), (x), (xi) and (xii). The submissions and the cases cited were therefore false, misleading and not relevant. Counsel urged the court to so hold. In reply to Paragraphs 7.1 - 7.6, counsel sought the court to discountenance the submission of the Defendant that the Claimant did not place any facts before this court. Counsel adopted the Claimant’s earlier submission in issue one. As well as Exhibits C16, C17, C18, C15 and C6, wherein it is very glaring that the Defendant deducted N2l,112.00 monthly from the Claimant's salary. Also, counsel relied on paragraphs 27, 28, 29, 30, 31 and 34 of the claimant's witness deposition. He urged the court to discountenance the cases of Oduwole vs. West (2010) (supra), NRC vs. ABONELI (supra) and Arinze vs. FISN Ltd (2004) cited by the Defendant, as they are not relevant at all to this case. Counsel also relied on Section 8.l of Exhibit C1. In reply to paragraph 8.1 - 8.4 of the final written address of the Defendant, counsel urged the court to discountenance submissions and cases cited. He again adopted the Claimant’s address on this issue in the Claimant’s issue one, and stated that S. 8.2 and S. 8.2.1 of Exhibit C1 deal with salary advance and it is granted only upon an agreement between the university and the staff member concerned, so since the Claimant did not apply for such and same was deducted and still deducting from the Claimant's salary without his consent as required by S. 8.2 of Exhibit C1, so the court can order such deduction made in the name of "salary advance" to be paid back to the Claimant. In reply to paragraph 9.1 - 9.6 of the final written address of the Defendant, counsel adopted their argument on these reliefs in our issue one above and submit further that the claims of the Claimant in 8 and 9 are not solicitor's fee but expenses like filing of the processes, filing of subpoena, service of the Defendant with processes and hearing notices in Abuja 5 times before the Defendant filed motion for extension of time also appearance of two or three counsel coming from Port Harcourt for the matter in Owerri more than 10 times to prosecute this matter. Counsel also urged the court to discountenance the case of Devine Ideas Ltd vs. Umoru (2007) (supra) cited by the Defendant as irrelevant to the case at hand and to grant the N500,000.00 as part of the cost of litigation which is above N1,000,000.00 now. On the issue of 10% of post-judgment interest, counsel adopted the Claimant’s argument on the claim in issue one. He state further that the claim was not for pre-judgment interest; the court has power to grant above 10%. Counsel urged the court to discountenance the argument of the Defendant on this issue and grant the claim of the Claimant. Claimant’s reply to Defendant’s Submissions on the Counter-Claim In reply to the Defendant’s submission on the counter-claim, counsel adopted the argument in the Claimant’s issue two in reply to the final address in the counter-claim. Counsel stated that the employment of the Claimant is with statutory flavor. He referred the court to Exhibit C1 and NOUN Act, especially S. 3.1, S. 3.2.3, S. 3.3.1, (vi) of Exhibit C1 and S. 14 of the NOUN Act. Counsel maintained his objection to all the exhibits of the Defendant from Exhibit Dl (a), (b) and (c) to D8 on the same grounds as have been earlier argued. He referred the court to the case of Magogo vs. CPC (2013) All FWLR (Pt. 685) 272 at 307 were the Supreme Court held that a court cannot pretend not to see a document before it, particularly when such document is germane to the justiciable resolution of the issue in contention. Counsel also submitted that the Defendant did not follow the laid down procedure of terminating or dismissing the Claimant. This cannot be done by the court. It is the law that where a statute provides for a particular method of performing a duty regulated by statute, that method and no other must be adopted. See the case of CCB (Nig) Plc. vs. A.G. Anambra State (1992) 8 NWLR (Pt. 261) at 528. Counsel submitted that the onus of proof of notice, invitation, appearance and service of the action taken were on the Defendant but they did not place or lay evidence before the court that any of the steps or actions were taken that might have warranted the court to grant the counter-claim. In the case of Geneva vs. Afribank (Nig) Plc (2013) All FWRL (Pt. 702) Pg. 1652 at 1678 – 1679, the Supreme Court held that when issues are joined by parties in the pleadings, evidence is required to prove them as averred. It is the person upon whom the burden of establishing that issue lies that must adduce satisfactory evidence. It therefore necessarily follows that when there is no such evidence, the issue must be resolved against him and the consequences of that are as decisive of the case presented as materiality of that issue. Counsel also referred the court to the following cases: i) John vs. Unilorin (2012) 41 WRN 82 at 89 Ratio 6. ii) Salihu vs. Kwara State Poly, Ilorin (2009) 27 WRN 138. iii) FMC vs. Kolawole (2012) 4 WRN 141. Finally, counsel urged the court to discountenance the argument of the Defendant in its final written address and to dismiss the counter-claim with cost. He urged the court to grant all the claims of the Claimant and to dismiss the counter-claim of the Defendant and to expunge all the documents marked as Exhibits D1 (a), (b), (c) - D8. Defendant’s Reply on Points of Law The Defendant, on 18th August 2017, filed a reply on points of law wherein counsel reacted to the issues raised by the Claimant in his final written address. On the Claimant’s assertion that all the exhibits tendered by the Defendant were not certified in accordance with S.104 (2) of the Evidence Act and therefore should not be admitted and used by this Honourable Court, Counsel for the defence submitted that the Court has the power and jurisdiction to admit and use these exhibits in the determination of this case. According to counsel, Exhibits D1- D8 are public documents as referred to in Section 102 of the Evidence Act. Counsel submitted however, that Section 12(2) of the National Industrial Court Act 2006 permits this court to depart from the Evidence Act in the interest of justice. The interest of justice according to counsel, enjoins this court in the instant case to depart from the Evidence Act and admit and use Exhibits D1- D8 in the determination of this case. He cited the case of HON. JUSTICE BASSEY TAMBU EBUTA vs. NJC in Suit No ABJ/301/2016 Pg. 34-35, Paragraphs 74-75, a judgment of which was delivered on 13/7/17 by Hon. Justice B. B. Kanyip. According to counsel, Section 12(2)(b) of the National Industrial Court Act has succinctly been amplified by Order 5 Rule 6 (2) (b) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 which provides thus: (2) In any proceeding pending before it, the Court may as a specialized Court:…… (b) in appropriate circumstances, depart from the Evidence Act as provided in Section 12(2)(b) of the National Industrial Court Act, 2006, in the interest of justice, fairness, equity, fair-play. It is the trite that Rules of Court are meant to be obeyed. Admissibility of a document is basically or largely governed by relevancy See FBN PLC vs. ISOKWA (2004) 5 NWLR (Pt. 866) 271. Exhibit D1-D8 having been admitted as being relevant to this case, will greatly assist the Court as a specialized Court in the just determination of this suit without necessarily placing strict compliance to the provision of the Evidence Act at the expense of doing substantial justice. Counsel also submitted that by Section 13 of the NICN Act 2006, this court has the powers to grant the Defendant’s prayer that Exhibits D1- D8 be admitted and used in evidence, as both in law and equity can be administered concurrently. Counsel therefore urged the Court to discountenance the Claimant's argument in this regard. On the Claimant’s assertion that Exhibits D7 and D8, the extracts of the minutes of the meetings of the Governing Council of the Defendant, were forged, counsel for the Defendant pointed out that the Claimant merely made this assertion without establishing the necessary ingredients of the offence of forgery. See OSUNDU vs. F.R.N (2000) 12 NWLR (Pt. 682) Pg. 483 at 506 paras. D-E. Counsel submitted that forgery is a criminal offence which must not only be proved beyond reasonable doubt, but prosecution or the party alleging (as Claimant in the instant case) must also prove facts to enable the Court to infer mensrea. He cited the decision in the case of PAM vs. MOHAMMED (2008) 16 NWLR (Pt. 1112) 1 at Pg. 92, Paras. G-H where the apex Court held inter alia: Forgery as an offence must be proved beyond reasonable doubt. One of the intents set out in section 465 of the Criminal Code must be proved. In the offence of forgery, the prosecution must prove that the document is a forgery and that it was forged by the accused (Defendant in this case). The prosecution must prove facts, which will enable the Court to infer mens rea. Counsel then went on that the Claimant having made the assertion, he has the burden to prove same; as it is trite that he who asserts the existence of a particular fact must prove that fact. See GBINIJIE vs. ODJI (2011) 4 NWLR, (Pt. 1236) 103 at 126-127 PARA H-B. Counsel submitted that the Claimant has failed to prove his assertion that Exhibits D7 and D8 were forged by the Defendant. He urged the Court to so hold. On the Claimant’s assertion that Exhibits D1 a, b & c bear no signature and therefore inadmissible, Counsel submitted that the Court has the power to depart from the provisions of the Evidence Act in the interest of justice by virtue of Section 12(2) of the NICN Act 2006. Counsel adopted his argument on the admissibility of the exhibits tendered by the Defendant urging the court to hold that Exhibit D1 a, b & c are empty store forms without any entry on them and therefore required no signature. He urged the Court to discountenance the Claimant’s argument on this part and hold that Exhibit D1 a, b & c are relevant as well as admissible, and will assist the court in the just determination this case. On the Claimant’s assertion that he was not invited before the Council Disciplinary Committee to defend himself, counsel submitted that the said argument is not true. This is a civil matter where evidence was based on documents. It is trite that documents speak for themselves; see TALLEN & ORS vs. JANG & ORS (2011) LPELR 9231 CA. Counsel contended that Exhibits D2, D6, D7 and D8 clearly show that the Claimant was invited and he appeared and defended himself before both Management Disciplinary Committee and the Council Disciplinary Committee. Counsel urged the Court to discountenance the Claimant's argument on this issue and to hold that the Claimant is only trying to be economical with the truth. Counsel further urged the court to hold that the Claimant was duly invited and that he attended the Council Disciplinary Committee to defend himself. On the Claimant’s assertion that this court has no jurisdiction to determine the Defendant counter-claim, counsel made the following submissions: By the provisions of Section 245C (1) (a) of the 1999 Constitution as amended, the Court has the power and jurisdiction to hear and determine the counter-claim since this case relates to or is connected with employment arising from a work place. The facts of this case relates to the negligent act of the Claimant in the performance of his official duty which led to the loss of his employer's property. Therefore the Defendant seeks the order of the Court by way of counter-claim to discipline the Claimant for gross-misconduct. This is completely within the powers of this Court. Counsel added that it is trite that a Court's duty is not to impose an employee on an unwilling employer. Counsel placed reliance on the dictum per Akintan J.C.A (as he then was) in ARAROMI RUBBER ESTATES LTD vs. OROGUN (1999) 1 NWLR (Pt.586) P.302 at 315, para. A-C where the Court held thus: No servant can be imposed by the court on an unwilling master, even where the master's behaviour or motive for getting rid of the worker is wrongful, unfounded and unjustifiable. All the court could do in any of such situation would be to award appropriate damages, if need be, and nothing more. According to counsel, The Defendant had mercy on the Claimant to impose a lesser disciplinary measure for the grave offence he committed, but the Claimant abused the said privilege by rejecting the decision to deduct certain amount from his salary so as to make up for the value of the 8 air conditioners that got missing through his act of negligence and gross misconduct. Counsel urged the court to grant the Defendant’s relief in the counter-claim as it will be in the interest of justice. He urged the Court not to allow the Claimant to benefit from his own wrong in this case. See ALADE vs. ALIC (NIG) LTD (2010) 19 NWLR (Pt. 1226) 111 at 131 PARAS A-D. Further on the counter-claim, counsel submitted that the Court indeed has the power and jurisdiction under Section 14 of NICN Act 2006, to grant all such remedies whatsoever as any of the parties may appear to be entitled to in respect of any legal or equitable claim brought forward to it. The order sought by the Defendant is for the enforcement of a legal right. Counsel emphasized the Defendant’s need to maintain a high standard of discipline to be able to control its staff. A legal right has been established before the Court and counsel urged the court to hold that the Defendant is entitled to the remedy it is seeking since the counter-claim is properly forward before the Court. Counsel urged the court to discountenance the argument of the Claimant that the Court has no jurisdiction to hear this case and hold that the Court does not only have the jurisdiction to hear this counter-claim but can grant the sole claim of the Defendant in the counter-claim (See Section 14 of NICN Act 2006). With general reference to the totality of the Claimant's case, counsel submitted that the Claimant has failed to adduce reliable and credible evidence to enable him succeed in establishing what gave rise to his claim against the Defendant in this case. Counsel submitted that the apex Court has succinctly settled the point that; Addresses of counsel are designed to assist the court and that no amount of brilliance in an address of counsel can make up for lack of evidence to prove and establish or disprove and demolish a salient point in issue. See CHABASAYA vs. ANWASI (2010) 10 NWLR (Pt. 1201) Pg. 163 at 189, paras. F-G. According to counsel for the Defendant, the Claimant set the law in motion when he failed or neglected to perform his duty in accordance with his schedule of duty in Exhibit C2 and performed the duty of the store officer. At the time he received the 8 air condition units during the duty he did that as store officer, he is bound by the rules of store procedures. The Claimant failed in the performance of that duty, and his failure cost the Defendant substantial loss. He was given a lesser disciplinary measure but he refused, and decided to embark on a wild goose chase against his employer, hence this suit which has now necessitated the counter-claim. Counsel submitted that in dealing with this case the Defendant followed all laid down procedures as stipulated in Regulation of the Defendant Exhibit C1, and there has been no breach of the provision of the NOUN Act. Counsel urged the court to discountenance all the arguments of the Claimant in its final address and accept that of the Defendant including this reply on points of law. He urged the court to hold that the Claimant's claim has failed in its entirety, having failed to adduce reliable and credible evidence to succeed in his claim. Final written address should not be substitute for evidence. The Claimant has also failed to disprove the Counter-claim against him. The response to the counter-claim of the Defendant ought to be on point of law and not just a mere reply as the Claimant has done. Counsel urged the Court to discountenance the argument of the Claimant in the said reply and accept the counter-claim as proved. In conclusion, counsel urged the court to view this suit as an attempt by the Claimant to make this Court a place of refuge for employees with proven cases of misconduct; that the Claimant wants to benefit from his own wrong and turn around to seek an injunction against the Defendant. It will be double jeopardy for the Defendant if the Claimant succeeds. The Defendant will suffer loss of its property and be saddled with an employee who cannot be trusted. According to counsel, the success of the counter-claim will serve as deterrent to other employees with similar bad characters and the University will be able to maintain a high standard of discipline amongst its work force in the work place more so as the Defendant is an institution where learning and character must go together. Finally, counsel urged the court to dismiss the case of the Claimant and grant the counter-claim. COURT’s DECISION Having heard the submissions of the learned counsels to the parties in their final written addresses, I will now proceed to examine the case presented before the court by the parties. The Claimant’s case, as stated in his statement of facts and the evidence given by the Claimant as the sole witness in his case is that the Defendant is a University established by the National Open University Act. The Claimant is an employee of the Defendant and holds the position of a Senior Accountant on CONTISS 9 step 1. In April 2009, the Defendant’s Council made a regulation governing the condition of service of senior staff. The Claimant was transferred from the Defendant’s Lagos Study Centre to its Port Harcourt Study Centre as the Centre Accountant, and his schedule of duties is as provided in the 11/6/2010 schedule of duties for all Study Centre staff. His own duties as the Centre Accountant is contained in Pages 5 and 6 of the schedule of duties. At the time, Mrs. Florence Obianuju Ezebuiro, a Higher Store Officer on CONTISS 07, was the Port Harcourt Centre’s Store Officer. In October 2014, the Defendant supplied 8 units of Air Conditioners to the Port Harcourt Study Centre, but because the Store Keeper was not on duty to receive the delivery, the Claimant was directed by the Director of Study Centre to receive the 8 units of Air Conditioners on behalf of the Store Keeper. He confirmed the number of the Air Conditioners and he signed for them. When the Store keeper, Mrs. Ezebuiro, came to the office, the Claimant handed over to her the document with which he received the Air Conditioners and the 8 Air conditioners. Mrs. Ezebuiro confirmed the Air conditioners to be complete. They were then kept in the store. The Air conditioners were still in the store on 14/12/2014 when the Claimant moved to another office. The Claimant travelled away from the office on 4/2/2015 to Kaduna and on 21/2/2015 to Lagos. While away, the Claimant was informed that the 8 units of Air Conditioners were missing and that the store keeper has been arrested when she was caught taking out one of the Air Conditioners. He was also informed that the store keeper alleged that the Claimant did not hand over 8 Air Conditioners to her. The Claimant was issued queries on 1/3/2015 and 16/3/2015 by the Centre Director and the Assistant Registrar to explain his role in the missing Air Conditioners. The Claimant replied the queries on 2/3/2015 and 17/3/2015 wherein he explained what he knows about the Air Condition units. The Defendant suspended the Claimant on 26/6/2015 and also informed the Claimant a Disciplinary Committee was set up to investigate the matter. The Disciplinary Committee commenced sitting on 9/7/2015 and interviewed some staff including the Claimant, the store keeper, the Centre Director, and some security officers. At the end of the investigation, the Disciplinary Committee found that the Claimant was not professional in handing over the items he received and that there was no evidence to establish the allegation that the Claimant was a party to the removal of the missing Air Conditioners. The Disciplinary Committee also recommended the immediate termination of the employment of the Store keeper and two security officers of the Defendant, Mr. Njoku and Mr. Amaru. The recommendation of the Disciplinary Committee was considered by the appropriate body of the Defendant and the claimant was recalled from suspension in a letter dated 19/10/2015 on the ground that there was no evidence to show that he participated in the removal of the missing Air Conditioners. The Claimant was also informed in the letter that the Bursar was to reinstate his salary and pay all outstanding salaries. Besides this letter, he did not receive any contrary letter from the Defendant. In September 2016, the Defendant deducted the sum of N21,112.00 from the Claimant’s salary. The same amount was deducted from his October 2016 and November 2016 salary. The Claimant did not apply for loan nor did he take salary advance so he sent some mails to the Defendant on 27/9/2016 and 28/10/2016 requesting to know the basis for the deductions, but the Defendant did not reply. His Solicitors, Yemi George & Co, also wrote a letter to the Defendant on this issue on 3/11/2016, but the Defendant still did not reply. The Claimant was later told by a senior staff of the Defendant that one Mr. John Ubaji, the Deputy Registrar of the Defendant and a member of the Disciplinary Committee has said the Claimant was found guilty of gross negligence by the Committee and the deductions from the Claimant’s salary was for the purchase of the 8 missing Air conditioners. Mrs. Ezebuiro has also threatened to ensure that the Claimant pays for the missing Air Conditioners after which he will be dismissed. The Claimant asserted that the Disciplinary Committee did not find him culpable for the missing air conditioners and did not recommend that he be surcharged for the Air Conditioners. The Defendant shall continue to deduct his salaries and will eventually terminate his employment. In his reply to the statement of defence and in his further evidence, the Claimant also averred that the only committee which visited Port Harcourt centre and interviewed staff and security men is the committee set up by management. This committee did not indict the Claimant as it stated in its report that the Claimant did not know anything about the missing air condition units. No other committee invited the Claimant to be interviewed. The management of Defendant acted on the committee report and communicated the outcome to the Claimant in a letter dated 19/10/2015. The Council or management at no time communicated to him about surcharge or payment for the missing air conditioners. The bursary did not also inform the Claimant about the surcharge and it was not reflected in the Claimant’s pay slip. What was reflected in his pay slip was “salary advance”. The defence of the Defendant to the Claimant’s claims is contained in its statement of defence and the evidence of DW1, one John Ubaji, a Deputy Registrar in the Defendant’s employment. The facts are that in the Defendant, there are store receipts vouchers, store issue vouchers and store ledgers which are used to receive and issue items into and out of the store. When the Claimant received the air conditioners, he failed to use these documents and he did not handover the air conditioners he claimed to have received. Following a report of missing 8 units of air conditions from the Port Harcourt study centre, queries were issued to the staff involved and they answered the queries. A committee consisting 6 persons was set up to investigate the incidence. The committee submitted its report in which it indicted the Claimant and recommended that he should be advised to be more meticulous and professional in the conduct of his duties. The report was submitted to the Council of the Defendant for its decision and directive. In the meeting of the Council on 13/1/2016, the Council directed the Committee to further investigate the case of theft of the 8 air conditioners. Although the suspension of the concerned staff was lifted and they were recalled to duty, Council Disciplinary Committee was constituted and all staff involved; Dr. Amini (Centre Director), the Claimant and Mrs. Ezebuiro (Store Officer); were invited. They appeared before the Committee and defended themselves. The Committee observed that the Claimant was not professional in the receipt and handing over of the Air condition units to the store officer as there was no proper documentation and also found other staff incompetent and negligent in the performance of their duties. The Committee consequently recommended that these staff be surcharged on equal basis to pay the sum of N760,000.00 being the value of the 8 missing air condition units. The report of the Council Committee was submitted to Council at its meeting of 2/6/16 and the report was approved. Following Council directive, the Registrar wrote a memo dated 29/7/16 to the Bursar to surcharge Dr. Amini, the Claimant and Mrs. Ezebuiro on equal basis the sum of N760,000.00. The Bursar complied with this directive by making the deductions from the salaries of these staff beginning from the month of September 2016. Before doing this, the Bursar informed the staff on phone. There was delay to communicate Council directive to surcharge the staff concerned to them because of new appointments made into the Defendant. By letter dated 27/9/16, the Claimant complained of deduction of his salary. The Registrar of the Defendant replied in a letter dated 2/11/16 where explanation was made to the Claimant that the deduction in his salary, treated as salary advance, was a surcharge on Council directive. The act of gross negligence and incompetence exhibited by the Claimant in the handling of the 8 air condition units were gross misconduct for which the claimant ought to be dismissed from his employment. The Council decided to impose lesser punishment of surcharge of the Claimant’s salary. The Defendant consequently counter-claimed for an order directing the Defendant to dismiss the Claimant from its employment for gross misconduct. Having reviewed the facts of the case of the parties, it appears to me there are two issues to be determined in the case. The two issues formulated by the Claimant’s counsel in his final written address will suffice but with some modifications. Therefore, the issues which this court will resolve in this judgment are these: 1. Whether the Claimant has proved his case to entitle him to the claims he sought in the suit. 2. Whether the Defendant is entitled to grant of its counter-claim. Before I proceed to determine the issues, it is important I resolve the objection to the admissibility of some of the exhibits raised by the Claimant’s counsel. During the evidence of DW1, the Claimant did not object to the admissibility of Exhibits D1a, D1b, D1c, D2 and D4 while counsel’s objection to the admissibility of Exhibits D3a and D3b was withdrawn in court. The documents were admitted in evidence and marked accordingly as exhibits. The Claimant’s counsel indicated his objection only to the documents marked Exhibits D5, D6, D7 and D8 and leave was granted to him to argue his objection in the final written address. In his final written address however, the learned counsel for the claimant raised objection to the admissibility of all the documents tendered by DW1. The main ground of the objection by counsel is that the documents were not properly certified. Can the Claimant’s counsel raise objection to the admissibility of Exhibits D1a, D1b, D1c, D2, D3a, D3b and D4 in his final address when he told the court that he had no objection at the time the documents were tendered in evidence? It is the law that where no objection was raised when a document was offered in evidence, the document will be admitted and acted upon and the opposing party cannot later complain on its admissibility unless the document is inadmissible by law. See OMEGA BANK NIGERIA PLC vs. O. B. C. LIMITED (2005) 1 S.C. (Pt. 1) 49; COMPTOIR COMMERCIAL & IND. S.P.R. LTD. vs. OGUN STATE WATER CORPORATION (2002) 4 S. C. (Pt. II) 86. In any case, counsel’s objection is that the documents marked Exhibits D1 to D8 were not properly certified in accordance with the provision of Section 104 (2) of the Evidence Act 2011. Exhibit D1 to D8 are all photocopies of public documents but they contain endorsements to show they have been certified as true copies. By the combined provision of Sections 88, 89 and 90 of the Evidence Act 2011, copies of public documents admissible in evidence are either the original or certified true copies of same. See OYENIYI vs. BAKOYE (2013) All FWLR (Pt. 694) 64. The requirement of certification in Section 104 (2) of the Evidence Act, 2011 is that there must be a certificate in the document that it is a true copy and the certificate shall contain the date, name of the certifying officer and his official title and shall be sealed if necessary. It is observed that these documents in question have such a certificate on them indicating they are certified true copies. The name of certifying officer, title, signature, and date of certification are also stated. This endorsement on the document has sufficiently complied with the requirement in Section 104 (2) of the Evidence Act. I find that the documents are certified true copies and they are admissible in evidence. With respect to Exhibits D7 and D8, the Claimant’s counsel submitted that they are forged documents. The allegation of forgery is a matter of fact and it must be pleaded and proved by cogent evidence. There is no such evidence before this court. What I have is the speculative argument of the counsel to the claimant in his bid to demonstrate that the documents were forged. The points raised in the submission of counsel do not affect the admissibility of the documents. The argument may at best affect the weight to be attached to the documents. The documents were pleaded and they are also relevant. I hold that they are admissible in evidence and have been properly admitted in evidence. ISSUE 1: There is no dispute on the fact that the Claimant is an employee of the Defendant. His position is that of a Senior Accountant on CONTISS 9 step 1. At the time of this action, his office is at the Defendant’s Port Harcourt Study Centre. The cause of action of the Claimant in this suit is the deductions made from his salary by the Defendant. According to the Claimant, the sums of N21,112.00 were deducted from his salaries for the months of September, October and November 2016. He also said the deductions were reflected on his pay slip as “salary advance” but he didn’t obtain salary advance or loan and did not commit any infraction for which deductions should be made from his salary. The Claimant’s pay slip for September, October and November 2016 are Exhibits C16, C17 and C18 respectively. They show that the sums of N21,112.00 were deducted in these months from the Claimant’s salaries as “salary advance”. Hence, the Claimant sought, among others, a declaration that the deductions were illegal, and an order to stop the deduction and to refund the amount deducted so far from his salary. The Defendant, on the other hand, admits that the Defendant made the deductions from the Claimant’s salary but contends that the monthly deduction from the Claimant’s salary was on the directive of Council of the Defendant. The deduction was a surcharge on the Claimant as repayment for the 8 Air Condition units missing from the Port Harcourt Study Centre. According to the Defendant, Council Committee re-investigated the incidence and observed that the Claimant was not professional in the receipt and handing over of the Air condition units to the store officer as there was no proper documentation. The Committee recommended that that the staff involved be surcharged on equal basis to pay the sum of N760,000 being the value of the 8 missing air condition units. The Council of the Defendant approved the recommendation and directed that those involved be so surcharged. The deduction from the Claimant’s salary was the said surcharge but was treated on the Claimant’s pay slip as salary advance. It is thus clear to me, from the case of the Defendant, that the deduction being made from the Claimant’s salary was a sort of punishment imposed on the Claimant for the missing air condition units. The sanction of surcharge imposed on the Claimant was based on the recommendation of Council Disciplinary Committee. Before I proceed further, there is the issue whether the said Council Disciplinary Committee acted at all in the matter. In his reply to the statement of defence and in his further evidence, the Claimant averred that the only committee which visited Port Harcourt Study Centre and interviewed staff and the security men is the Committee set up by the management of the Defendant. He also said he neither appeared before, nor was he interviewed by any other Committee. The Claimant, in effect, contends that he did not appear before the subsequent Council Disciplinary Committee. The Defendant averred that when the report of the Committee set up by management was presented to Council on 13/1/2016, the Council directed that the case of theft of the 8 air conditioners be further investigated. Accordingly, Council Disciplinary Committee was set up. The CDC invited the Claimant, Dr. Amini and Mrs. Ezebuiro and they appeared before the CDC and defended themselves. A certified true copy of the report of the CDC was admitted in evidence from DW1 as Exhibit D2. At paragraphs 4, 5 and 5.1 to 5.4.1 of the report, it is disclosed that the CDC had two meetings on 26th April 2016 and 6th May 2016. In these meetings, the CDC interacted with the staff mentioned in respect of the incidence and one of them is the Claimant. At paragraph 5.2, it is stated that the Claimant made some explanations to the CDC. From the content of Exhibit D2 and the evidence of DW1, I am convinced that the Claimant was aware of the proceedings of the CDC, and he participated when he explained himself to the CDC. The Claimant’s claim in relief 2 is for a declaration that the he cannot be punished for an offence from which the disciplinary committee and the management of the Defendant had exonerated him from as communicated to him in the letter of 19/10/2015. Exhibit C4 is the report of the committee set up by management to investigate the missing air condition units from the Port Harcourt Study Centre. The finding of the committee in respect of the Claimant is that he was not party to the removal of the missing Air Condition units. The Claimant relies on this report in his claim in Relief 2. There is however Exhibit D7 which is extracts of minutes of the meeting of the Council of the Defendant held on 13/1/2016. I find at page 2 of this document that the said report of management committee was set aside by the Council to allow further investigation by the CDC. It is clear in Exhibit D7 that the report of management committee was set aside by Council and a further investigation was ordered to be conducted by the CDC. Let me mention that in the condition of service, Exhibit C1, the power of the Vice Chancellor to discipline staff of the Defendant is subject to final decision of Council. Section 3.2.3 of Exhibit C1 provides that when the vice-chancellor had conducted any enquiry in respect of a staff and taken any appropriate action, he shall report it to Council. The purpose of reporting to council is get council to approve the action. Accordingly, on reporting to Council, Council may approve or direct further action. In this case, the action of Council on the report of management committee is that the report was set aside and a further investigation was ordered. The consequence of the directive of Council is that the recommendations of the management committee in Exhibit C4 were effectively nullified. The CDC was constituted following the directive of Council and as I have held earlier, the report of the CDC, Exhibit D2, reveals that the Claimant participated in the proceedings of the CDC and he explained himself. The report which the Council eventually used to take the final decision on the matter was the CDC report. In view of the foregoing, Relief 2 sought by the Claimant cannot succeed. The report of the management committee having been set aside by the Council no longer has effect and cannot be relied on by the Claimant as the basis for his claim in Relief 2. Now, was the Claimant found guilty of the missing Air Condition units by CDC as to be surcharge for them? In the report of the CDC, Exhibit D2, their observation on the Claimant at paragraph 5.2.1 was that he was not professional in the receipt and handing over of the air condition units as there was no proper documentation. He was therefore found to be grossly incompetent and negligent at paragraph 6 (iii) of the report. The observation and findings of the CDC did not at all show that the Claimant participated in the loss, theft or disappearance of the air conditioners. When the CDC observed that the Claimant was not professional in the “receipt and handing over” of the air condition units, it implies that there was actual receipt and hand over, only that it was not done in a professional manner. Now, when the ACs were later found missing, did the CDC find that the Claimant had any role to play in the disappearance of the ACs or stole them? I find no evidence to that effect. Notwithstanding that the CDC did not find the Claimant responsible for the missing air condition units, it went on to recommend to the Council that the Claimant, Dr. Amini and Mrs. Ezebuiro be surcharged equal amounts as payment for the missing air condition units. In my view, it is inequitable and unjust to make the Claimant pay for what he didn’t steal. I have also examined the condition of service of the Defendant to see whether it has the right under the contract to impose the sanction of surcharge on the Claimant. Exhibit C1 is the regulation governing the condition of service of senior staff of the Defendant. The Claimant pleaded this document in paragraph 3 of the statement of facts. The Defendant too averred in paragraph 30 of the statement of defence that the council of the Defendant imposed the lesser disciplinary action of surcharge on the Claimant in exercise of its powers under the regulation governing the condition of service of senior staff of the Defendant. Section 3 of Exhibit C1 deals with matters of discipline in the Defendant’s employment. The power of discipline is vested in the Vice Chancellor and the Council of the Defendant. In Section 3.3.1, the disciplinary measures which can be imposed on an employee of the Defendant are as follows: verbal warning, reprimand, query, written warning, denial or withholding of increment, suspension, interdiction, termination and dismissal. The section went further to indicate the circumstance in which each of these sanctions can be invoked. Surcharge or deduction from the salary of an employee is not one of the punishments the Defendant is permitted under the condition of service to impose. Again, the finding of the Council Disciplinary Committee against the Claimant, as stated in Exhibit D2, was gross incompetence and negligence. The punishment for a misconduct of this nature is not stated anywhere in Exhibit C1 to be a surcharge or deduction from salary. The Defendant contended that the Claimant ought to be dismissed for the misconduct found against him but the Council decided to impose a lesser sanction that was why the surcharge was imposed. The Defendant’s counsel also argued that by Section 3.3.1 of Exhibit C1, the Governing Council of the Defendant has the power to remove any member of staff of the University or to give a lesser punishment on any offence committed by any staff of the University. I quite agree with the Defendant that the Council of the Defendant, in exercise of its power of discipline, can impose lesser punishment on members of staff of the Defendant, but the lesser punishment cannot be one not contemplated or stipulated in the condition of service between the parties. If the Defendant should impose a punishment less than what it ought to give for the misconduct committed by the employee, it must be one within the punishments prescribed in the condition of service. The Defendant cannot go outside the condition of service to import a punishment and impose on its staff on the pretext that it is exercising its power of discipline. I find in the result that the sanction of surcharge and deduction from the Claimant’s account is not provided for in the condition of service. Little wonder the Defendant could not state the deduction in the pay slip as “surcharge” but labeled it “salary advance” in order to cover its misdeed. It is thus unlawful and unjust for the Defendant to surcharge the Claimant for the missing Air Condition units. The Claimant said in September 2016, the Defendant deducted the sum of N21,112.00 from his salary. As he did not apply for loan or take salary advance, he sent a mail to the Defendant on 27/9/2016 to know the basis for the deduction but the Defendant did not reply. Again in October 2016, same amount was deducted from his salary. He also sent a mail to the Defendant. In his reply to the statement of defence, the Claimant stated clearly that the Council or management of the Defendant at no time communicated to him about the surcharge or payment for the missing air conditioners. It is clear from these averments that the Claimant was not aware of the decision of Council to surcharge him before the Defendant started making deductions from his salary. The Defendant in one breath said the staff involved in the surcharge were informed on phone by the Bursar and in another breath said there was delay in communicating Council decision to the staff concerned. These are contradictions but it points to the fact that the Claimant was not formally informed of the decision of Council to surcharge him by deductions from his salary to pay for the missing air condition units. Of course, the Claimant had no idea about the deduction, that was why he was surprised when he saw the sums deducted under the guise of “salary advance” when he did not take any salary advance. The Defendant pleaded a letter dated 2/11/2016 in paragraph 27 of its statement of defence and averred that by the said letter, the Claimant was informed of the decision of Council to surcharge the Claimant for the missing air condition units. This letter is Exhibit D4. It was written after the Defendant had started making deductions from the Claimant’s salary. In my view, the Claimant ought to have been informed of the outcome of said CDC proceedings, the decision of Council and the punishment imposed on him before the deduction will reflect in his salary. Had he been informed, he would not have written letters to demand explanations for the deductions. It was wrong for the Defendant to deduct from the Claimant’s salary without first informing him of the reason for the deduction. ISSUE 2: The Defendant sought in its counter claim “an order directing the Defendant to dismiss the Claimant from its employment for gross misconduct”. This claim is frivolous and vexatious. I cannot consider how this court can direct the Defendant to dismiss the Claimant from the employment. The right to dismiss or terminate the employment of any employee of the Defendant is that of the Defendant. The Defendant’s Council did not see reason to dismiss the Claimant when it considered the report of the CDC in Exhibit D8. I see no reason why it will seek to do so now. To grant the relief will be tantamount to the court taking over performance of the Defendant’s powers under the contract of employment. This court cannot do so. In any case, the issue upon which the Defendant seeks the order in the counter claim is on the same issue of the missing air condition units. I have held earlier that the report of the CDC did not find the Claimant involved in the theft of the air conditioners. I therefore find no tangible reason for the Defendant to seek the dismissal of the Claimant from employment. It is rather my view that the Defendant should be restrained from terminating the Claimant’s employment or dismissing the Claimant on the same issue of the missing air condition units. I hold that the Defendant is not entitled to the grant of the relief sought in the counter-claim. The counter-claim is hereby dismissed. In conclusion of this judgment, the Claimant succeeds in part in his suit. He is entitled to some of his claims. Reliefs 1, 3, 4, 5, 6, 7 and 9 are granted. Reliefs 2 and 8 are not proved. They are dismissed. The Defendant is ordered to comply with the orders hereby made, within 30 days from today. No order as to cost. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Judge