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The claimant, by a General Form of Complaint filed on 8th July, 2014, approached the Court for the following reliefs: 1. A DECLARATION that the claimant’s purported dismissal from the employment of the 1st defendant by the letter dated 11th April, 2014 is null and void and of no effect. 2. A DECLARATION that the claimant is still in the employment of the 1st defendant. 3. AN ORDER directing the 1st defendant to reinstate and/or reabsorb the claimant into the services of University of Uyo Teaching Hospital with effect from 1st July, 2001. 4. Payment of all unpaid entitlement of the claimant being salaries allowances and any short falls or arrears owed the claimant, on the current basic salary and allowances of #42,900.08 per month, from 1st July, 2001 till 9th April, 2014. 5. Payment of #47,179.78 (Forty Seven Thousand, One Hundred and Seventy-Nine Naira Seventy Eight Kobo) only being short fall in her salary. OR a. AN ORDER directing the defendants to pay the claimant all her salaries, terminal benefits and other entitlements accruing to her by virtue of her offices as ward orderly including the short fall as captured above. b. The sum of #50,000,000.00 (Fifty Million Naira) as damages for wrongfully terminating her employment with her ripe age of retirement. c. The sum of #500,000.00 (Five Hundred Thousand Naira) being legal fees. The Claimant’s Case on the record is that the Claimant who is a staff of the 1st defendant was employed as Ward Orderly on 1st March, 1999 on grade level HAPSS 02 and had her appointment confirmed and salaries paid as such under the terms and conditions of the Federal Civil Service Rules as applied to the University of Uyo Teaching Hospital. Sometime in August, 2001, claimant applied for a two (2) year study leave to pursue a programme on environmental education at the University of Calabar and on 4th September, 2001, approval was granted the claimant by the 1st defendant retrospectively to take effect from July 30th, 2001. And that due to late commencement and/or late takeoff of the 2000/2001 academic calendar of the University of Calabar as a result of incessant Academic Staff Union of Universities (ASUU) strike action embarked upon by staff of the University of Calabar in December, 2002 which lasted until July, 2003 wherein the claimant could not proceed with her study and complete same in record time as approved by the 1st defendant. She stated that on 7th February, 2005 she received what was termed “Preliminary Letter” alleging she absented herself from work without permission and that she replied the letter on 8th February, 2005. It is predicated on the above facts that the claimant filed this suit against the defendants seeking redress before this Court. The defendants filed their STATEMENT OF DEFENCE dated and filed on 18th September, 2014 and the Defendant’s case on the record is that the claimant never showed up after the expiration of the study leave, never showed cause, never explained her inability to complete her studies nor applied to Management for extension of the study leave. Furthermore, that the claimant’s action amounted in Rule 030402(e ) of the Public Service Rules, 200 to absence from duty and abandonment of duty post for which the penalty is dismissal. On 25th October, 2004, the Asst. Chief Nursing Officer in charge of the Children Emergency Department of the Hospital where the claimant was attached raised a petition to Management stating that claimant had abandoned her post for more than a year without excuse and permission; and that based on the petition, the Management set up an inquiry to investigate the whereabouts of the claimant only to discover she never applied for an extension or for excuse duty. Defendants stated that it was during the 2005 verification exercise that she surfaced to attend the exercise that she was noticed and issued with a preliminary letter with Ref. No. UUTH/CST/P/364/VOL.1/19 dated 7th February, 2005. And that on 8th February, 2005 she gave an indicting reply to the Management. The Defendants admitted that she replied to the preliminary letter but that her explanations were not satisfactory in the circumstances as to exculpate her from disciplinary actions. Defendants admitted that the claimant presented application for the pursuit of a Bachelor’s Degree programme on the same date of her reply to her query but that the Defendants deny her claim that Management approved her further studies to Degree level as utter falsehood. The defendants averred that they never approved any further studies for the claimant, never paid her any more salaries or posted her to any department or unit for that matter, denying as false that any staff was ever granted leave during the period absconded and was allowed back into the employment of the hospital. It is the defendant’s case that the claimant continued to draw salaries without doing any work until February, 2005 when Management found her guilty of abscondment and proceeded to stop her salary. The Defendants maintain that by virtue of the dismissal of the claimant she has forfeited her emoluments and retirement benefits and so there is no longer any contractual relationship between the claimant and the defendants. Furthermore, that the claimant’s suit is baseless and vexatious and constitutes an abuse of the process of this Honorable Court as he that must approach the law and equity must do so with clean hands. WHEREOF the defendants shall urge the court to dismiss this suit with heavy costs of #500,000.00 in favour of the defendants. The claimant reacted by filing her CLAIMANT’S REPLY TO STATEMENT OF DEFENCE dated and filed on 6th February, 2015. Wherein the claimant stated that she never contemplated withdrawing from the service of the 1st defendant and that the 2nd defendant granted her a study leave on the 4th of September, 2001 with full salaries, all benefits and allowances that were never paid from 4th September, 2001 till date. The claimant averred that she reported to duty before making an application for extension of her study leave to enable her obtain her B.Ed. in Environmental Science. The Claimant stated that her employment was unduly, maliciously and wrongfully terminated without due regard to the University Teaching Hospital (Reconstitution of Boards etc.) Act, 1985 or the provision of the Public Service Rules, 2008 if at all the claimant’s employment is regulated by the Rules of Public Service. The claimant stated that her application for extension of the study leave granted to the claimant was never contested or denied neither did the 2nd defendant raise any issue or statement regarding the application or the Degree programme until when the claimant had completed the course and reported back to duty after her Youth Service programme. Claimant averred that she wrote a letter to the 2nd defendant for reinstatement which was refused after repeated passionate effort for her to be reinstated to her post. At the trial the claimant testified as CW1, adopted her written statement on oath which was marked exhibit C1 and tendered 15 other exhibits. During cross examination CW testified that she was issued a two year study leave with pay by the 1st defendant Management to pursue a Diploma in Environmental Studies in 2001, that due to the strikes her programme terminated in 2005, and that in 2003 she informed her Officer in Charge one Roseline Apati in writing but that she gave the said Roseline the only copy of the letter She also testified that she informed the Officer in Charge in 2005 when she came to collect her shortfall of salary. CW told the court that it was when she came to collect this shortfall and she learnt she had to go for clearance. Looking at Exhibit C11 CW testified that she came for the clearance on 28th January 2005. It was at that time she received the query which she replied. CW further testified that she did go to work during the strike and that she would visit her department but not resume fully because she had not yet finished her course. CW testified that she wrote Exhibit C13, dated 8th February 2005 asking for an extension but that the defendants did not reply. CW stated “I did not know whether their silence was yes or no” and in response to the question Who gave you approval? The claimant responded “They would have told me they did not want me to continue”. CW testified that she undertook the 12 month NYSC programme in Abuja and that at that time she was shuttling to and fro (Abuja /Uyo) and that her “in Charge” was aware, the University of Calabar had sent her to do the NYSC . CW testified that C15 was written when she realized her name was omitted from the roster and she sought re absorption. CW replied in the affirmative to the question whether she ever applied for her salary she said “That was the shortfall”. CW testified that she completed her studies in 2009 and went for NYSC in March 2010. She reported back in 2010 but received no internal posting and had made no applications for annual leave and did not sign the attendance register because her name was not against any duty post or on the roster. During further cross examination the claimant testified thus ITORO- ABASI : In 2012 the Federal Government went IPPIS, what is your number CW : Since the 2005 verification I have not participated in anything I was told not to. I did not participate. I do not know. ITORO- ABASI : I put it to you that you did not report for work CW : it is false ITORO- ABASI : I put it to you that you were not going to work CW` : I was going to work ITORO- ABASI : Since 2010 you only wrote for resumption in 2013 CW` : It was because my name was not included in the roaster ITORO- ABASI : it was because your name was not included in the Roster CW` : when I complained in 2013 I was told to write ITORO- ABASI : Who is your employer CW` : She is my in charge, she is the one from whom I make enquires ITORO- ABASI : when you were suing why did you not sue Madam CW` : I do not understand ITORO- ABASI : The CMD regulates your employment CW` : yes ITORO- ABASI : Your behaviour amounts to gross insubordination CW` : No The claimant (CW) further testified under cross examination that her “in charge” was the person she reported to, whose name was Roseline Apati, that CW had reported to her immediately she resumed and her in charge instructed her to write to the Management which she did but received no response and that she also wrote again in 2014 and received a reply last year (being 2015). The defendants called 3 witnesses, the first was Etimbo Ubongabasi Ekpe, the Head of Department Nursing Services who testified as DW that as at 2004 she was Mrs. Roselin Ikpati and in 2005 she officially changed her name, she further explained that the claimant did not know I had changed my name because they are no longer in contact, it has been long since we last met. She adopted her written statement on oath which was marked Exhibit D1 and tendered four (4) other documents she testified that she did not see the claimant after 2001 and reported that fact in writing Exhibit D2. Under cross examination she further testified that the claimant was still working with the defendant when her approval to proceed on study leave was granted and that she was required to make a Exhibit D2, The defendants also called Bello Kami, the chief Accountant of the defendant who testified as DW2 adopted his witness statement on oath and tendered four (4) other exhibits testified that he had received official communication to stop the claimant salary which he did. Under cross examination he testified that he had no personal knowledge of the claimant, he further testified that before the advent of IPPS salaries were paid in cash and that he would not be surprised to learn that the claimant was not paid her salary, since she started her programme and that he was aware that the claimant banked with Union Bank. The defendants’ third witness Abigail Asadu a staff to the 1st defendant who adopted her statement on oath which was marked Exhibit D7 and proceeded to tender 4 other documents and was duly cross examined by the claimant counsel. At the close of trial parties were directed to file their final written addresses in line with the rules of this curt On 12th October 2016 parties adopted their final written addresses and adumbrated their respective position s accordingly. The FINAL WRITTEN ADDRESS OF THE DEFENDANTS was filed on 20th July, 2016. Wherein they framed the following ISSUES: 1. Whether the dismissal of the claimant by the defendants was wrongful in the circumstances? 2. Whether the conduct of the claimant in the entire transaction entitles her to any relief? 3. Whether she is entitled to be reinstated? Learned Counsel to the defendant Kenneth Itoro-Agbasi Esq. argued that dismissal connotes a disciplinary measure on the part of an employer of labour in bringing the contract of employment to an end and the terms and conditions of service in the case of contracts with statutory flavour (Government contract of service) are contained in the rules book (i.e. the Public Service Rules, 2008, circulars and directives). He submitted that by the letter of query issued the claimant, she was charged with absence an negligence of duty and that absence from duty without leave by the provisions of Rule 030402 (e) of the Public Service Rules is serious misconduct for which the ultimate penalty is dismissal while negligence of duty by the provisions of Rule 030301(h) of the Public Service Rules is a misconduct which can lead to termination from service. Defense Counsel submitted that Rule 030401 of the Public Service Rules, 2008 define serious misconduct as a specific act of very serious wrong doing and improper behavior which is inimical to the image of the service and which can be investigated and if proven, may lead to dismissal and it includes inter alia absence from duty without leave. Furthermore, that Rule 030302 of the Public Service Rules, 2008 provides that as soon as a superior officer becomes dissatisfied with the behavior of any officer subordinate to him/her, it shall be his duty to inform the officer in writing giving details of unsatisfactory behavior and call upon him/her to submit within a specified time such written representation as he/she wish to make to exculpate him/herself from disciplinary action. It is defendants’ counsel’s contention that the claimant was given fair hearing in the circumstance since the Board of Management perused through her official files to find the query and her reply thereto in reaching their decision. IMONIKHE v. UNITY BANK PLC (2012) 3 NILR 25 @ 29 HELD 2 RATIO 4 @ 31. On the issue of whether the claimant is entitled to any of the reliefs in her Complaint, counsel referred the Court to the provision of Rule 030407 which stipulates that the ultimate penalty for serious misconduct is dismissal and an officer that is dismissed forfeits all claims to retiring benefits, leave or transport grant etc. subject to the provisions of the Pension Reform Act, 2004. Counsel contended that the action of the Management in setting up a disciplinary panel against the claimant and coupled with the provisions of the Rules amount to substantial compliance with respect to the action taken against the claimant. IDERIMA v. RIVERS STATE CIVIL SERVICE COMMISSION (2005) 16 NWLR (PT. 951) 378 @ 382 HELD 1 & 2. The CLAIMANT’S FINAL WRITTEN ADDRESS was dated and filed on 1st August, 2016. Wherein the claimant framed the following ISSUES: 1. Whether having regards to the circumstances of this case, the claimant’s right to fair hearing as enshrined under Sec. 36(1) of the 1999 Constitution as altered was not breached by the defendant. 2. Whether the operation of estoppel by conduct could work against the defendants, considering the facts and circumstances of this case. ON ISSUE 1 Whether having regards to the circumstances of this case, the claimant’s right to fair hearing as enshrined under Sec. 36(1) of the 1999 Constitution as altered was not breached by the defendant. Learned Counsel to the claimant Chris Onugba Esq. submitted that the brazen act of the defendants against the claimant offends Sec. 36(1) of the 1999 Constitution of the Federal Republic (as altered), asking that the action of the defendant be declared null and void and of no effect. SOKEFUN v. AKINYEMI (1981) 1 NCLR, 135 @ 146, per Fatayi Williams, CJN. He contended that the defendants have no right to review the facts of the claimant’s case without her knowledge and that they ought to have accorded her a hearing before doing so. That a person accused of gross misconduct as in the instant case, must be confronted with the result of whatever investigation that was conducted, or if charged, be allowed to defend his or herself or offer an explanation. SAVANNAH BANK (NIG.) PLC v. FALOKUN (2002) 1 NWLR (PT. 749) 544 @ 561, per Ige, JCA. Claimant Counsel argued that the question to ask is whether the actions of the defendant and their despicable conduct is in line with the University Teaching Hospitals (Reconstitution of Boards, etc.) Act, Cap. U5, Laws of the Federation of Nigeria, 2004. SEC. 10 (1), (2) & (3) of the ACT. He submitted that the defendants have placed no evidence before this Court to show that they complied with the above provisions of law governing the claimant and the defendants’ relationship. Thus, for that reason, the purported dismissal is invalid, null and void. IDERIMA v. R.S.C.S.C. (2005) 16 NWLR (PT. 951) 378 @ 414, PARA. G, per Oguntade, JSC. ON ISSUE 2 Whether the operation of estoppel by conduct could work against the defendants, considering the facts and circumstances of this case. Counsel to the claimant submitted that by virtue of Sec. 169 of the Evidence Act, 2011 as altered by the National Assembly, the action of the defendants had made the claimant believe that her Exhibit C12 resolved Mrs. Roseline’s allegations in her favour having told the defendants that her delay was as a result of the Academic Staff Union of University’s strike action; and that the defendants in receipt of Exhibit C13-C131 granted her further extension of time to complete her programme in the University of Calabar. OBAYAN v. UNIVERSITY OF ILORIN (2006) ALL FWLR (PT. 299) 1374 @ 1391, PARAS. C-H, per Ikongbeh, JCA; ATTORNEY GENERAL, NASARAWA STATE v. ATTORNEY GENERAL PLATAEU STATE (2012) ALL FWLR (PT. 630) 1262 @ 1298-1299, PARAS. G-B, Fabiyi, JSC; NSIRIM v. NSIRIM (2002) FWLR (PT. 96) 433 @ 436, per Iguh, JSC. It is claimant’s counsel’s submission that the defendants never led documentary evidence in support of averments in their pleadings. HELP (NIG.) LTD. v. SILVER ANCHOR (NIG.) LTD. (2006) ALL FWLR (PT. 311) 1833 @ 1846, PARAS. F-H, per Katsina-Alu, JSC. He submitted that the claimant’s employment is with statutory flavour and hence her claim from the defendants is the payment of her unpaid entitlement inform of salaries, allowances from July, 2001 to April, 2014 as well as general damages from the defendants. MONILE PRODUCING NIG. UNLTD. V. UDO (2009) ALL FWLR (PT. 481) 1177 @ 1213, per Ommokri, JCA. THE COURT’S DECISION I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issues as formulated by the defendant, to my mind better address the circumstances of this case and shall be adopted as the issues for determination in this suit. 1. Whether the dismissal of the claimant by the defendants was wrongful in the circumstances? 2. Whether the conduct of the claimant in the entire transaction entitles her to any relief? 3. Whether she is entitled to be reinstated? Before I delve into the merit of this suit I wish to address a question of estoppel raised by the claimant; Whether the operation of estoppel by conduct could work against the defendants, considering the facts and circumstances of this case. Arguing that the action of the defendants had made the claimant believe that her Exhibit C12 resolved Mrs. Roseline’s allegations in her favour having told the defendants that her delay was as a result of the Academic Staff Union of University’s strike action; and that the defendants being in receipt of Exhibit C13-C131 granted her further extension of time to complete her programme in the University of Calabar. Now the doctrine was well and lucidly expound in the case of ALL PROGRESSIVES CONGRESS V. PEOPLES DEMOCRATIC PARTY (2015) 15 NWLR (PT. 1481) 1-204 P.60, PARAS.F-H - Where it was held that “the doctrine of issue estoppel is that where an issue has been decided by a competent court, the court will not allow it to be relitigated by different parties. The rule of estoppel is a rule of evidence and the matters which will found an issue estoppel may be of law, fact or mixed law and fact. Issue estoppel apply only to issues. In this case, the issue of the 2nd respondent’s HND Certificate was laid to rest in A.D V.FAYOSE (2005) 10 NWLR (Pt. 932) 151 in which the Court of Appeal found that the 2nd respondent’s HND certificate was genuine. The decision was final. It laid to rest for all times any further consideration of the authenticity of the HND Certificate in question”. The Apex Court in the case of MAKUN V. F.U.T., MINNA (2011) 18 NWLR (PT. 1278) 190 S.C. went further to elucidate this doctrine thus; There are 2 categories of estoppel per rem judicatam: (a) Cause of Action Estoppel – this precludes a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action – the non-existence or existence (b) of which has been determined by a court of competent jurisdiction in a previous litigation between the same parties. This is because it is against the rule of public policy for anyone to be vexed twice on the same ground and for one and the same cause of action and on the same issues. It is also an application of the rule of public policy that there should be an end to litigation. In appropriate cases, the parties affected are estopped from bringing a fresh action before any court on the same cause or on the same issues already decided or pronounced upon by a court of competent jurisdiction in a previous action.” (c) Issue Estoppel – The rule here is that once one or more issues have been raised in a cause of action and distinctly determined or resolved between the same parties in a court of competent jurisdiction, then, as a general rule, neither party nor his agent or privy is allowed to re-litigate that or those decided issues all over again in another action between the same parties or their privies on the same issues.” ADONE V. IKEBUDU (2001) 14 NWLR (PT. 733) 385 referred to.] (P. 221, paras. A-G) Now with regard to estoppel by conduct the pronouncement Nnaemeka Agu JSC in the case of OKONKWO & ORS Vs. KPAJIE &ORS [1992] LPELR 2483 SC is most instructive; “This is estoppel by conduct – by matter in pais. Where a man by word or conduct willfully made a representation of a state of facts to another and thereby induced that other to believe that the state of things were as represented by that person and that other took him by his words and acted upon that representation then that person who made the representation either by himself or his representative in interest cannot now turn around to say or behave as if the state of things were not as he represented them. He is estopped from asserting the contrary …” Also in FRANCES ANEZE Vs. UDE ANYASO [1993] LPELR 480 SC it was held that “…where a person by his conduct represented to another the existence of a state of affairs and has induced such other person to act in reliance thereof, he will be bound by the fair inference to be drawn from his word or conduct.” The central theme in the doctrine of estoppel is the ingredient of representation either by word or conduct. In the instant case the claimant was issued a query which she replied Exhibit C 12 and at the same time she submitted an application for extension Exhibit C13-13(1), there was no representation from the defendant to create an estoppel on which to hinge her acting as if she did. Now looking at the content of Exhibit C13-C13(1) where the claimant applied for study leave for a two session extension to undertake a Bachelor in Education Degree and the claimants letter applying to resume office D10 dated even the doctrine of estoppel by silence or standing by cannot assist the claimant. In the case of ALADE Vs. ALEMULOKE [1988] LPELR 298 SC. Where Oputa JSC of blessed memory held thus “Now let me consider the general principle involved in the defence of acquiescence, laches and standing by, all these are species of a genius know as estoppel and the general rule as to estoppel by silence and standing by is that if a man by word of conduct has intimated that he consents to an act which has been done and that he will offer no opposition to it although it could not have been lawfully done without his consent and he thereby induces others to do that which that might otherwise have abstained, he cannot afterwards question the legality of the act he had so sanctioned to the prejudice of those who have given faith to his words or to the fair inference to be drawn from his conduct…” Bearing in mind that Courts are duty bound to look at documents before it holistically, interpret and evaluate the documents AJAGBE & ORS Vs. OYEKOLA [2013] LPELR 19840 CA them together and considering the demeanor of the witnesses UBA Vs. COMRADE CYCLE LTD & ANOR [2013] LPELR 20737 CA and as I found CW, the claimant a most fractious witness who’s timelines did not coincide and her explanations were highly suspect, particularly the claimants insistence that DW1 was her employer, also necessary to mention is the fact that the claimant seemed unaware that the one person she claimed to be relating to during and after the period of her obtaining here qualifications had changed her name is most disturbing. Juxtaposed against the coherent and reasoned testimony of DW1 I find that the reliance the claimant sought to place on DW1 cannot stand. Between the Claimant and DW1 I disbelieve the evidence of the claimant as to her claim that she reported to DW1 I don’t believe the claimant ever reported to the defendants at all. I believe the evidence of DW1 that she (DW1) had lost contact with the claimant since 2001.Especially as the claimant was unaware that the defendant had since ceased to be known by the name Roselin Apati. Furthermore I find that the claimant having applied for a study leave in 2001, was somewhat aware of the correct procedure to be adopted for such leave cannot benefit from the lack of response from the defendants considering the time lines and the lack of correspondence from the claimant. It would be expected that the claimant would have applied for an extension of her study leave in 2003 when her programme was extended due to the strikes. Similarly on obtaining admission to pursue her Bachelor degree one would expect her to apply once more for a study leave. Also considering that the claimant completed her degree programme in 2007 the absence of any correspondence seeking resumption until 2013 would make a claim of laches, silence or estoppel by silence against the defendant unequitable in the circumstances. I find. All this means that the doctrine of estoppel in all or any of its ramifications cannot avail the claimant. Now to the merits of this case; The law is that “in an action for wrongful dismissal from employment, the burden is always on the claimant to prove the terms and conditions of his contract of employment and in what manner the said terms were breached by the employer”. U.B.A. PLC v. ORANUBA (2014) 2 NWLR (PT. 1390) 1 @ 5 C.A., [ANGEL SPINNING & DYEING LTD. v. AJAH (2003) 13 NWLR (PT. 685) (P. 21, PARA. C) The claimant in that wise tendered her letter of appointment Exhibit C2 and argued that her appointment was regulated by the Public service rules and the University Teaching Hospitals (Reconstitution of Boards, etc.) Act, Cap. U5, Laws of the Federation of Nigeria, 2004. SEC. 10 (1), (2) & (3) of the Act. Neither of which the claimant saw fit to tender or frontload. It is not in dispute that the claimant’s appointment was statutorily flavoured and the defendant’s dismissed the claimant by exhibits C15 The case of the defendants is that the claimant had absconded from duty for a period of 10 years during which the claimant never showed up for work. By correspondence the claimant maintained her reply to a query (Exhibit C11 ) accusing her of absenteeism which she relied with Exhibit C12 wherein she claimed the strike of the university affected her studies and she was unaware she was required to inform the management that the strike prolonged her course, she further stated that she spent her holidays on field trips. Considering that strike period are not time when anything is undertaken by the university one would expect the claimant to report to duty during that time, in fact she testified in open court that She used to go to work during the strike period; ITORO- AGBASI : You claim that the ASUU strike affected you, and did you inform your employers and did you go to work during the strike period CLAIMANT CW : I used to go to work during the period of the strike. I find this testimony is clear contradiction from the claimants para 3.0 of D8(1)(1) dated 8th February 2005. The defendants had in their query preliminary letter stated this (i) That from July 2003 you have been absent from work without permission, only to emerge on 1st February 2005 to attend the personnel verification and audit exercise. (ii) During the period of your absence al the work load assigned to you could not be done…. (iii) Your absence and negligence of duty is seen as a gross misconduct punishable in line with (iv) the Federal Government Public Service Rules Section 3 No, 04301 The query went on to ask the claimant to show cause why disciplinary action should not be taken against her. The claimant receive this and duly replied in Exhibit C12. In UDEGBUNAM Vs. F.C.D.A [1996] 5NWLR (Pt. 449)447 at 487 para G the appeal court held that the absence of an employee without valid excuse from duty is an act of indiscipline or disobedience of lawful order. The act also amounts to insubordination and tantamount to misconduct which could earn him a dismissal. Also in LCRI Vs. MOHAMMED [2005] 11 NWLR (Pt. 935) 1 at 25 paras C-E it was held that any conduct or misconduct of an employee, which is prejudicial to the discipline and proper administration of an institution or body, is sufficient for the removal of the employee either by summary dismissal or retirement on compassionate grounds. Now the Federal Government Public Service Rules Section 3 deals with misconduct No, 04301 provides thus for serious misconduct which could result in dismissal. With regard to dismissal for serious misconduct Learned Author Odabi Osaretin Kingsley in his book Case Law Annotation of Public Service Rules in Nigeria© 2013 Evergreen Overseas Publication Benin City, at page 114 described dismissal as a penal reward or punishment for misconduct of a worker and has the odium of moral turpitude. In real terms the worker is not entitled to notice and forfeits all rights to the benefits save accrued earned wages. In the case of OBO Vs. COMMISSIONER FOR EDUCATION, BENDEL STATE[2001] 9 WRN 1 the appellant who was absent from office for about eight years without excuse had his employment merely terminated and not dismissed, yet absenteeism falls into the distinction tagged “serious misconduct” under the rules. The Learned Author Odabi Osaretin Kingsley in his book Case Law Annotation ofs Public Service Rules in Nigeria© 2013 Evergreen Overseas Publication Benin City, at page 150 also discussed this case and I quote “The case of OBO Vs. COMMISSIONER FOR EDUCATION, BENDEL STATE supra “ …..the appellant had two years study leave with pay in 1976 to study abroad. Rather erroneously, his employer continued to credit his account up until 1982. When in 1996 the appellant returned and applied for re absorption into the Civil Service, his employment was terminated retrospectively to 1978. In the appellant action challenging the termination the Supreme Court did not spare words in telling him he was narrowly let off the hook and that the appropriate sanction was dismissal and not termination. From the foregoing I find the defendant acted correctly under the provision of the public service in the action they took against the claimant in the circumstances of this case. It is also the position of the law that as held in OLORUNTOBA-OJU V. ABDUL-RAHEEM (2009) 13 NWLR (PT. 1157) 83, Held: “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 employer believed that the employee committed the offence after hearing witnesses. Bamgboye V. University of Ilorin (1999) 10 NWLR (pt. 622) 290 referred to.] (p. 145, paras. A-B) In this court it was held in the case of SOGBESAN v. UNIVERSITY OF LAGOS & ORS. (2014) 47 NLLR (PT. 153) 346 NIC @ 351 ; that “where an employer accuses an employee of misconduct by way of a query and allows the employee to answer the query, and the employee answers the query before the employer takes a decision on the employment of the employee, that satisfies the requirement of fair hearing because he answered the queries before he was dismissed from his employment. Once the employer does not find the answers of the employee satisfactory, he can dismiss the employee. IMONIKHE v. UNITY BANK PLC (2011) 12 NWLR 9PT. 1262) 624 @ 640 referred to.] This I find resonates with the provisions of Rule 030407(i) and (ii) (ii) “If the officer submits his/her representation and the Federal Civil Service is not satisfied that he/she has exculpated him/herself and considers that such an officer shall be dismissed it shall take such action accordingly…..” That being the case I find that the defendants had duly disclosed the allegation to the claimant in Exhibit C11. Furthermore the claimant in responding in Exhibit C12 satisfies the requirement of fair hearing as per SOGBESAN v. UNIVERSITY OF LAGOS & ORS. (Supra) Whether the defendant believed the claimant committed the offence after hearing witnesses, I find from the copious minutes on Exhibit D2 and D3 together with the testimony of DW3 the that the defendants believed the claimant committed the offense of absenteeism without excuse, furthermore the claimants explanation in Exhibit C12 that she was unaware that she was required to notify the defendants that the strike elongated her programme was in itself an admission that she had in fact stayed out of work over the period of her leave without excuse. From the forgoing I find that reliefs (a), (b) and (c) therefore fail, cannot be granted and are hereby dismissed. In reliefs (d) and (e) the claimant is seeking the following; (d) Payment of all unpaid entitlement of the claimant being salaries allowances and any short falls or arrears owed the claimant, on the current basic salary and allowances of #42,900.08 per month, from 1st July, 2001 till 9th April, 2014. (e) Payment of #47,179.78 (Forty Seven Thousand, One Hundred and Seventy-Nine Naira Seventy Eight Kobo) only being short fall in her salary. The claimant maintained that although she was granted study leave with pay Exhibit D4, she never received any salary for the period starting August 2001, and she tendered Exhibit C7-C7(37) being her bank statement indicating the non-payment of salary, the defendant on their part admitted ordering the stopping of the claimants salary in November 2004. But the claimants evidence indicates no payment since 2001. The law of traverse requires to constitute an effective and sufficient denial of an averment in the statement of claim or petition, the denial must be apt, precise, succinct, full and complete and not evasive, rigmarole, vague and bogus. See EL-TIJANI V. SAIDU [1993] 1 NWLR (PT. 268) 246. Also, a mere denial of a detailed, factual situation without attacking the veracity or authenticity of details contained therein is in law not a denial however the defendant concisely denied the claimant assertion but were unable to provide any evidence to support their contention that the claimant had been paid for the periods she had been claiming, in the absence of any evidence to the contrary and in the circumstances I find for the claimant on these relief but only thus far; that means the claimant shall be paid her salaries but only for the period she legitimately was entitled to her study leave being 2001-2003. Having failed to obtain approval for further extension the court cannot make any further order In addition no explanation was given to the court as to the issue of shortfall and as such no order on same can be made relief (e) also fails, The judgement of the Court for avoidance of doubt is as follows; The claimants reliefs (a), (b), (c) and (e) fail and are dismissed Relief (d) succeed in part only and thus far: The defendants shall pay the claimant her due salary for the period of August 2001- July 2003 only. I make no order as to cost This is the Court’s Judgement and it is hereby entered accordingly. ……………………………… Hon. Justice E. N. Agbakoba Judge