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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE OWERRI JUDICIAL DIVISION HOLDEN AT OWERRI BEFORE HIS LORDSHIP HON. JUSTICE O. Y. ANUWE Dated: November 04, 2014 SUIT No. NICN/PHC/65/2013 Between Chukwuma A. J. Chinwo - Claimant And Rivers State University of Science and Technology - Defendant Representation: K. K. Nwosu for the Claimant A. S. Abdulkadir for the Defendant JUDGMENT The Claimant brought this action by way of Complaint dated and filed on 20th May 2013, claiming against the Defendant the following reliefs: 1. A Declaration that the continued actions of the Defendant in withholding the salaries of the claimant from August 2012 up to the date of filing this suit is unlawful and a breach of the Claimants rights under his contract of employment. 2. The sum of N2,966,000:00 (Two Million Nine Hundred and Sixty Six Thousand Naira only) being and representing the Claimant’s salaries from August 2012 to September 2012 at the rate of N307,000. 00 (Three Hundred and Seven Thousand) for each month, and from October 2012 to April 2013 at the rate of N336,000. 00 per month. 3. The Sum of N336, 000.00 per month or any increased sum as salary per month from May, 2013 until judgment is delivered. 4. 10% interest per annum on the above until the date of judgment and thereafter until the judgment sum is paid. 5. An Order of this Honourable Court restraining the Defendant, its privies, servants or other agent from by any means or in any way withholding the salaries of the claimant in this suit or interfering with his employment. Along with the Complaint, the Claimant filed an affidavit in verification of the endorsements on the complaint, Statement of Facts, Written statement on oath, List of witnesses, List of documents and copies of documents to be relied upon at the trial. The defendant entered appearance on the 25th day of September 2013 and filed its Statement of Defence, Witness statement on oath, List of witnesses, List of documents and copies of documents to be relied upon at the trial. The case proceeded to hearing on the 31st day of October 2013. The parties fielded a witness each. The Claimant testified for himself as CW1, while Mrs. Aligbe Tsaro-Goteh Angela a Legal Officer of the Defendant testified as DW1. Hearing was concluded and the defendant closed its case on the 1st day of April 2014. At the close of the case for each of the parties, final written addresses were ordered to be filed in accordance with the rules of this court, starting with the defendant. The defendant filed its written address on the 6th day of May 2014 and the Claimant’s written address was filed on the 2nd day of July 2014. Thereafter, the Defendant filed a Reply on points of Law on the 8th day of July 2014. They adopted their respective written addresses on the 8th day of July 2014 and the case was adjourned to 7th October 2014 for judgment. The date turned out to be a public holiday marking the muslim eid-el-kabir festival, hence it was adjourned to today 4th November 2014 for judgment. The parties have today re-adopted their respective written addresses. The defendant’s written address filed on the 6th day of May 2014 raised the following four (4) issues for determination: 1. Having regards to the evidence before the court, whether this suit is competent, without joining the Rivers State Government and the governing council as a party to this proceeding? 2. Whether the Claimant is entitled to be paid salaries for the period he was on strike? 3. Whether the Claimant is permitted to lead evidence on facts that are not pleaded? 4. Whether the Claimant has proved his case? In arguing issue one, Counsel to the defendant referred to pleadings and evidence. He referred to paragraph 10 of the statement of fact, where Claimant averred that “Sometime in August 2012, the Claimant noticed that, his salaries were not paid by his employers”. Counsel referred to the testimony of the Claimant who, under cross-examination as CW1, testified “The government pays the staff salary. The university will ascertain that you are entitled to salary and that you have worked before they instruct the ministry to pay you”. Exhibit C3 tendered by the Claimant gave the name “the Consultant R. S. G. E. Payroll” as the agency that credits the account. This evidence, counsel submitted, is in total support of the Defendant’s averments in paragraphs 10, 11, 13 and 14 to the effect it is the Rivers State Government that pays salaries. It was counsel’s submission therefore that Rivers State Government is a necessary party to the proceedings because the reliefs before the court is for payment of salaries which the defendant does not pay, a fact which Counsel states, the Claimant admitted under cross examination. According to Counsel, under cross examination of DW1 the Claimant tactically raised the question that the Claimant is an employee of the governing council of the university. Counsel conceded, that by Section 6(2) of the University of Science and Technology law Cap 133, Laws of Rivers State, all members of staff of the university are employees of the council, and the council by Section 6(1) shall gave general control of finances. Counsel therefore submitted in line with the above background that since salaries is part of finance, the council of the university is a necessary party to the proceedings being the employer of the Claimant. To counsel, it is trite, that the governing council of a university or institution is a juristic person, for the purpose of suing or being sued. He cited the case of CARLEN (NIG.) LTD. vs. UNIJOS (1994) 1 NWLR (Pt. 323) pg. 631 where the Supreme Court held thus: “With regard to the position of the 2nd Respondent by the combined effect of Section 2(1) and 5(1) of the University of Jos Act, the Council is a juristic person which can be sued in relation to its function conferred on it by the Act. The two sections provide: Section 2(1): The university shall consist of: (a) A Chancellor (b) A pro-chancellor and a Council (c) A vice chancellors and Senate and other Section 5(1) provides: Subject to the provision of this Decree (now Act) relating to the visitor, the council shall be the governing body of the university and shall be charged with the general control and superintendence of the policy, finances and property of the university including Its public relation. .....It is my view inconceivable that the 2nd Respondents being the governing body of the university charged with the general control and superintendence of policy finance and property of the university by virtue of Section 5(1) is not amenable to suit. It is in that regards that I hold that the 2nd Respondent is not only a proper but a necessary party. Its juristic position having being defined by statute”. Counsel to the Defendant submitted that the provision of the University of Jos Act, is impari-materia with section 3(e) and section 6(1) of the University of Science and Technology Law Cap 133. He referred the court to the case of COUNCIL F.U.T.A. vs. ADDIDAHUN (2012) 14 NWLR Pt.1321 page 583 According to counsel, arising from the above submission is the fact that, the Claimant in paragraphs 10 of his statement of fact and in his evidence, has stated that his salaries were stopped by his “employers” which by the law establishing the university, his employer can only be the governing council of the university which in its self is a juristic person. It is therefore submitted that the Claimant has failed to bring his employer before the court which is fatal to his case. Reliefs 15 (1-4), deal with payment of salaries, from the evidence before the court and the admission of the Claimant that it is the Rivers State Government that pays salary. It is submitted that the Rivers State Government is a necessary party for the grant of these reliefs. This is because the Rivers State Government will certainly be bound by those reliefs. From the minutes of meeting of the governing council who are the employers of the Claimant held on 28th September, 2012, particularly pages 5 – 10, (8 – 13), it is clear that the governing council, does not have financial autonomy. Counsel submitted therefore that the court has a primary duty not to grant a relief which it cannot enforce. Counsel referred the court to the case of UNIJOS vs. IKEGWUOHA (2013) 37 NWLR (Pt. 112) Pg 1 at 29 para. E – F. He went on that the Defendant has given evidence that its duty is to prepare payment voucher while the Rivers State Government will pay. A procedure which the Claimant admitted but still wants the defendant to pay, when the Defendant’s only duty is to prepare payment voucher for the Ministry of Finance to pay. It is submitted that since the Defendant by the Claimant’s admission, does not pay salaries, the appropriate order that can be made against the Defendant, is only to prepare a payment voucher, and not to pay salary. From the relief before the court it is submitted that the Claimant having admitted that it is the Rivers State Government that pays staff salaries, the Rivers State Government will be bound by any decision that may be delivered by this court. Counsel cited by way of example that if the court decides to grant the reliefs, it is not the Defendant who will pay but the Rivers State Government. The law is trite that where a party will be bound by the decision of the court that party is necessary party. See MAIWADA vs. ASUU & ORS (2011) 24 NWLR 399; ANABARAONYE vs. NWAKAIHE (1979) SCNJ. 161 at 166; MOBIL vs. L. S. E. P. (2002) 12 SCNJ 1 In arguing issue two, it is the submission of counsel to the defendant that the law is now trite that an employee is not entitled to salary while he is on strike. Counsel cited Section 43 of the Trade Dispute Act Cap T8 which provides thus: Notwithstanding anything continued in this Act or in any other law. (a) Where any worker takes part in a strike, he shall not be entitled to any wages or other remuneration for the period of the strike, and any such period shall not count for the purpose of recording the period of continuous employment and all rights dependent on continuity of employment shall be prejudicially affected accordingly. Further reference was made to the recent decision of F. C. D. A. vs. NZELU (2014) 5 NWLR Pt. 1401 page 565 at Para. C, where the Court of Appeal Abuja Division per Yahaya J.C.A. held thus: “No staff of any organization can be entitled to the payment of salaries etc, if he stays at home and refuses to go to work and perform his duties”. Refer to: SSANU VS. FGN (2008) 12 NWLR Pt. 33 p. 407. To counsel, applying this position of the law, to the fact of this case, the following points are discernible from the case of the Claimant himself. 1. There was strike in August, 2012. 2. That he joined the strike like other lecturers. 3. That he indicated his willingness to return to class after his publication in Beacon Newspaper of September 28 - October 4, 2012. 4. Finally that following the above publication he returned to work. From the above, according to counsel, the conclusion can be deduced that the Claimant stopped going to work from August to sometime in October. It is the submission of counsel for the defendant that on the evidence of the Claimant himself, he was on strike for the period of August to October 2012. Therefore, the Claimant having admitted that he was on strike in August to October, is definitely not entitled to the salary of August and September. In ANU vs. FGN (Supra) this court held thus: “A strike whether legal or not fails squarely within the ambit of the said section and for which, the strikes are disentitled from wages and other benefit envisaged by the section”. The Claimant by his own admission has given evidence that he was on strike from August to September. Yet, he is praying the court for payment of salaries from August to September 2012 (when he was on strike). Counsel therefore submitted that the Claimant having admitted to be on strike from August to September is disentitled to salaries for those months. In arguing Issue three (3), counsel referred to the case of MOBIL vs. ASUAH (2005) 2 NWLR pt. 4 p. 40, where the Court Appeal held as follows: “A party’s case is defined, circumscribed and limited by his pleadings. Where a plaintiff’s pleading is bereft of essential averments such an omission could constitute a guarantee for his failure as he cannot lead evidence on any fact which he did not aver in his pleadings, unless such issue was raised in the opponent’s pleadings. Any evidence on a point not pleaded goes to no issue and ought to be disregarded.” In applying this position of the law to the instant case, Counsel referred the court to Reliefs 2 and 3 in the complaint and reliefs 15(2) and (3) in the Statement of Facts which state thus: 1. “The sum of N2,966,000.00 (Two Million Nine Hundred and Sixty Six Thousand Naira) being and representing the Claimant salaries from August 2012 to September, 2012 at the rate of N307,000.00 (Three hundred and seven thousand naira) for each month and from October 2012 to April 2013 at the rate of N336,000.00 per month.” 2. “The sum of N336,000.00 per month or any increased sum as salary per month from May 2013 until judgment is delivered. From the above reliefs the following fact can be deduced: 1. That the Claimant’s salary was increased from the month of October, 2012. 2. That the Claimant’s new salary scale is N336,000.00 and not the old N307,000.00. On this point, Counsel submitted that the fact of increase or increment of salary, is a material fact which ought to be pleaded by the Claimant, and that through the entire 15-paragraph Statement of Facts, the Claimant did not plead that his salary was increased in the month of October. In paragraphs 15(2) of the deposition on oath, which is the Claimant’s evidence, before the court, the Claimant introduced material fact in this relief which was not pleaded. The said relief now reads: “The sum of N2,996,000.00 (Two million Nine Hundred and Ninety Six Thousand Naira only) being and representing my salary from August, 2012 to September, 2012 at the rate of N307,000.00 (Three Hundred and Seven Thousand Naira) for each month from October 2012 to April, 2013 at the rate of N336,000.00 per month. Our salaries were increased in October, 2012 and those of my level were increased from N307,000.00 to N336,000.00”. Counsel submitted that the above portions of Claimant’s evidence were, neither pleaded in the complaint nor in the Statement of Facts. Apart from the evidence being material fact which ought to have been pleaded, the claimant by incorporating the underlined portion to his claim now sought to amend his relief different from the one in the statement of fact. It was counsel’s further submission that parties are bound by their pleadings and the Claimant, having omitted to plead material fact of increase of salary cannot give evidence on same. In UMOH vs. INDUSTRIAL TRAINING GOVERNING COUNCIL (2013) 38 NWLR pt. 119, p. 487, it was held as follows: “Parties are bound by their pleadings and evidence which is at variance with the averment in the pleading goes to no issue and ought to be disregarded by court. Evidence in respect of material facts which are not pleaded also goes to no issue and ought to be rejected even when such evidence has been wrongly admitted, the trial court should disregard it as being irrelevant to the issue properly raised by the pleading and put up an entirely new case at the hearing.” In applying the above authority particularly to the part of evidence in paragraph 15(2) of the deposition on oath not included in the statement of fact, Counsel to the defendant submitted that the Defendant has the option to either admit that there was an increase in salary or deny same if the fact was pleaded. By introducing this evidence in the deposition on oath the claimant can be accused of indulging in “surprise” or an ambush in this trial. In EMEIJOKWUE vs. OKADIGBO (1973) NSCC 220 at 222; FATAI WILLIAMS JSC held thus: “The fairness of a trial can be tested by the maxim audi-alterem partem. Either party must be given an opportunity of being heard but a party cannot be expected to prepare for the unknown and the aim of pleading is to give notice of the case to be met; which enables either party to prepare his evidence and argument upon the issues raised by the pleadings and saves either side from being taken by surprise. The Plaintiffs will and indeed must confine his evidence to those issues by the cardinal point is the avoidance of surprise” See: AJIDE vs. KELANI (1985) 3 NWLR (Pt. 12) 248. A.G. ANAMBRA STATE vs. ONVOSELOGU (1987) 4 NWLR (Pt. 66) Pg. 547. MONOHNOFALO vs. KWARA STATE COLLEGE OF TECHNOLOGY (1990) 4 NWLR (Pt. 145) 506 at 517. Counsel therefore urged the court to expunge this evidence and hold that there is no evidence in support of the increment of salaries for the purpose of granting reliefs 15(2) and (3). On issue four (4), it was the submission of counsel to the defendant that for the court to determine whether the Claimant has proved his case to be entitled to the judgment of this court, the following questions would arise: (1) Has the Claimant specifically pleaded special damages. (2) Whether the Claimant has proved that the Defendant withheld his salaries from August, 2012? (3) Whether the salaries of the Claimant for the months of September, October and November, 2012 had been paid? (4) Whether the Claimant has resumed back to work? In OYETAYO vs. ZENITH BANK PLC (2012) 29 NLLR (Pt. 84) p. 370 at 422 para. D, this court per B. B. KANYIP held thus: “Salaries, allowances and other emoluments are special damages which must be specifically pleaded and proved if they are to be claimed” To counsel, the necessary question therefore is whether the fact that the Claimant set out in relief 15(2) on the statement of fact, and relief 2 of the complaint, the salaries claimed, it can be said that the Claimant has fulfilled the requirement of the law? Counsel submitted that the Claimant has failed to specially plead special damages, this is inspite of the fact that it was set out in relief 15(2) of the Statement of Facts. Counsel outlined his reasons for coming to this conclusion as follows: Reliefs sought in a case, is not part of the pleadings of the party. In YUSUF vs. OBASANJO (2003) 15 NWLR pt. 834 p. 293, at 307 – 308, the Court of Appeal held thus: “The election petition by the petitioner had pleaded or set out in numbers in paragraphs nineteen of them the material fact or the major facts on which the petitioner seeks to rely at the trial. The petitioner, thereafter at the end of the pleading concluded with paragraph 20 thereof as follows: …….. After perusing the election petition of the petitioner that paragraph 20(4) thereof was one of the five (5) reliefs or prayers sought for by the petitioner: By the rules of pleading in an ordinary civil case (and it is in pari-materia with and germane to an election petition) when all material facts have been alleged the statement of claim concludes with the relief or remedy Claimed….. This is called prayer and the practice is for the prayer to come at the end of statement of claim.” In line with the above, counsel submitted that there is nowhere in the entire statements of fact, wherein the Claimant has alleged that he is being paid N307,000.00 rather the only place it surfaced is the prayer or relief before the court which is not part of the pleadings of the Claimant. STOWE vs. BEH STOWE (2012) 9 NWLR pt. 1306 p. 450. It was the submission of counsel that the fact that the Claimant is paid N307,000.00 having not being pleaded there is no foundation upon which the relief will be granted. In OWUNDIGO vs. EGWUATU (2006) ALL FWLR pt. 342 p. 1544, the court held thus: “Reliefs sought in an action ought to be determined on pleaded facts. Where there is no pleaded fact or where abandoned, the tribunal will be right not to accede to the relief sought by a party”. On this point, counsel referred the court to the case of OKOLO vs. UBA LTD. (1998) 2 NWLR pt. 539 p. 618. See also NWARATA vs. EGBOKA (2006) ALL FWLR (Pt. 338) 768. He therefore urged the court to hold that the Claimant has not specially pleaded special damages. Indeed from the evidence before the court under cross examination, the claimant gave evidence on the August salaries as follows: “I am not sure whether or not the August salary was paid.” Counsel submitted that the relief which deals with August salaries being a declaratory relief, the Claimant must lead cogent and credible evidence in support of it. It was further submitted by counsel that the evidence by the claimant that he is not sure whether the salary of August has not being paid cannot qualify or satisfy the test of cogent and credible. This is because the claimant must succeed on the strength of his case in declaratory reliefs. See IBEKWE vs. IMO STATE EDU MGT. BOARD (2011) 24 NLLR pt. 68 1159. See also DAVID FABUNMI vs. AGBE (1985) 1 NWLR (Pt. 2) 299 From the evidence before the court, the Claimant admitted under cross examination that sometime in November he received alert from his bank that he had money which amounted to two months salaries and he concluded that the bank has withdrawn the repayment of loan he took for the month of September, October and November from the salary paid. It was the submission of counsel on this point that the Claimant having admitted that his salaries for September, October and November had been paid cannot again seek to order the payment of the salaries for those months. Counsel submitted further that the case of the Claimant is that following the publication of the Beacon Article when the time table was released, he set exams. In other words the examination timetable was released after the 28th day of September, 2012. However, from the minutes of meetings of the governing council held on 28th day of September, 2012, particularly from page 11 – 17. It is clear that examinations were held in the University on 17th September, 2012. Counsel for the defendant therefore submitted that the examination questions had been submitted before the strike, and that this is more probable than the evidence led by the claimant. He therefore urged the court to believe the Defendant’s version of the evidence. From the evidence before the court, it is clear, that there is nothing before the institution by way of a letter or memo notifying it that the Claimant has resumed back to work. The Claimant had refused to obey a lawful directive from the institution that he should indicate whether or not he is still on strike. It is not open to the Claimant to determine on his own when he will work and when he will stop working. It is equally not open to him to him to determine when to proceed on strike and how to resume back to work. The only way, the institution can be in the know that the Claimant has resumed back to work is through his faculty or department, which the claimant himself has admitted have failed to notify the institution of his resumption. On this point, Counsel cited the case of MAGIT vs. UNIVERSITY OF AGRICULTURE (2005) 12 SC pt. 1 p. 122 at 152 – 153 where PATS ACHOLONU JSC held as follows: “When a suit is instituted its contents may be considered either from points of view of its inherent benefits to the proponent of the action or from the benefit derivable jurisprudentially speaking by the society at large such as in a case on constitutional or administrative law. In the context of the case before us, the court would necessarily consider the effect on the university to wit on how such an ivory tower would be affected by the nature of the suit regard being had to its statutory and traditional functions. Speaking analytically, it is safe to postulate that the determinants of justice while demonstrating the latitude of individual liberty ought generally to be consistent with the welfare and ethos of the society. A university is the bastion of learning and research the reservoir of scholarship and I dare say the think tank of the society and as such it should be given or allowed general lea way to operate with its independence unshackled by the inanities or such humbugs that might compromise its stature and dignity without necessarily trying to hamstring it with decision that would adversely affect its duties in maintain excellence in scholarship.” “…… But it must equally be admitted that judges are not robot (or zombies) who have no mind of their own except to follow precedents. They are intrepid to their great learning and training and can distinguish in order to render justice to whom it is due. As the society is eternally dynamic and with fast changing nature of things in the even changing world and their attendant complexities the court should empirically speaking situate it decision on the realistic premise regard being had to the society’s construct and understanding of issues that affect the development of jurisprudence”. It is the view of learned counsel to the defendant that this suit is one that would have been avoided had the Claimant complied with the lawful directive to indicate whether he had withdrawn his service or not. Counsel submitted finally that the relief of withholding salary will fall like a pack of cards when placed side by side with the following admitted facts. 1. the university does not pay. 2. the Rivers State Government pays through the consultant R.V.S.G. payroll; 3. the money is credited into the salary account of staff. Referring the court to Exhibit C3, counsel submitted finally that the Claimant has failed to prove that the Defendant withheld his salaries for August. The Claimant in his written address filed on the 2nd day of July 2014 raised the following two (2) issues for the determination of the court: (1) From the totality of the evidence before the court, is the Claimant entitled to all the reliefs sought against the Defendants? (2) Did the defendant justify their withholding of the salary of the claimant from August 2012 to date? In arguing Issue one (1), it is the submission of counsel for the claimant that from the facts and totality of evidence placed before the court, the Claimant is entitled to all the reliefs sought against the defendants. The claimant and the Defendant entered into a valid contract of employment when the Claimant was employed sometime in March 2004. That contract of employment governs the employment of the claimant whose employment is one with statutory flavour. In Olaniyan &Ors vs. University of Lagos (1985) All NLR 363, which is quite relevant to this case, being a matter between lecturers in a university, the Supreme Court held as follows: 1. the relationship between the respondent and the appellant is that of master and servant which in the context of the university of Lagos service is governed by statutory provisions, consequently the appellants are “statutory servants” and not “ordinary servants” employed at the pleasure of the master. 2. Where there are clear statutory provisions covering the relationship of master and servant, the only way to terminate a contract of service is by complying with the procedure laid down in the statutory provisions. 3. By University of Lagos Act 1967 where an employee is alleged to be involved in act amounting to misconduct that employee should be given an opportunity to defend the allegation before he can be terminated. This case, counsel submitted, is far worse than the Olaniyan’s case. This is because no disciplinary action of any kind had been taken or was in process against the claimant. He is still undisputedly an active and serving staff of the defendant who rather capriciously decided to stop his salary. According to counsel, the reason the defendant gave that the Claimant did not teach or set examinations is manifestly untrue and unsupported. Before it stopped the salary of the claimant it did not accuse the claimant of any misconduct and took no step in accordance with the Rivers State University of Science and Technology Law 1980. Counsel made reference to the fact that Karibi-Whyte JSC, a former Law lecturer in the University of Lagos, sat in the panel that decided the Olaniyan’s case (supra), and incidentally is the present Chairman of the Council of the defendant in this case. This reference, counsel stated, is not done in attack of the retired Justice, but to show that the Defendant which Council he chairs cannot claim to be ignorant of the true position of the law on this issue. Counsel cited the concurring judgment of Karibi-Whyte JSC as follows: “I have adopted this course of action (of being tedious in his concurring judgment) essentially because of the importance of this case to the University and also to contribute to the developing principles of specific performance with respect to contracts of service. [p.427] ….having bound itself to terminate the appointment of a servant under prescribed conditions and circumstances; the University is bound to comply with the provision so prescribed [p440] ….not only can the university remove any of the appellants on grounds other than those prescribed in paragraph 15 of the regulations, it must also comply with the provision of Section 17 of the University of Lagos Act 1967 ….Concisely it cannot be too emphatically stated that the respondents can only terminate for cause [p441] With contracts of employment like their contracts, creation and termination are both subject to general principles governing the law of contracts? Hence where the contract of employment is in writing, the parties are bound by the express terms and condition so stipulated. [p446] A strict compliance with statutory requirements for the determination is required in contracts re-enforced by statute or created by statute. [p450] Thus even if it is, for purpose of argument, conceded that the respondents were not exercising a right to terminate the appellants’ employment on grounds of misconduct, they have exercised a power to terminate which is nowhere in the contracts and Regulation vested in them. This is clearly ineffective, ultra vires and invalid, since no such power exists. [p.459] The law has arrived at a stage where the principle should be adopted that the right to a job is analogous to a right to property. [p.446]” Counsel submits that the Claimant is not unaware that the present is not one of termination or dismissal. However, According to Counsel, the Claimant has quoted His Lordship as extensively as he has done, to demonstrate the oppressive steps taken against the claimant by the defendants when there is not even a query against him. The Claimant had boldly pleaded and stated in evidence that he has never from the date of his employment been found wanting in carrying out his duties to the Defendants, his employer. The Claimant in keeping to the terms of this agreement has always discharged his duties as a law lecturer since his employment, a fact the Defendants wholly admits. See paragraphs 3, 4, and 5 of the Claimant’s Statement of Fact and paragraph 1 of the Defendant’s Statement of Defence. The strike which was initiated by the Academic Staff Union of the Defendants disrupted academic activities in the University but not withstanding the rift the strike may have caused, the claimant called on colleagues to return to the lecture rooms in a newspaper publication which has already been admitted and marked as Exhibit C1. The claimant went further in showing exemplarily service to the Defendants by going back to the lecture room and setting questions for the subjects he teaches, Administrative Law (PUL 320) and Law of Evidence (PUL 423) immediately the defendants released its examination time table for the 2011\2012 academic year. The Claimant also marked well over 500 post examination scripts, Exhibit C6, and issued the results which were later uploaded into the University web portal Exhibit C5. The replication of the claimant averments in this address goes to show the court the clean hands of the Claimant who has come to this court. The courts have held in a number of judicial authorities that a person seeking to enforce his right under a contract must first show the courts that he has performed his own contractual obligation as against the party he is seeking the court to direct same. The Court of Appeal per Ndukwe Anyanwu, JCA in Saka v. Ijuh (2010) 4 NWLR, (pt. 1184) 405 at 432, para. B-C puts this position more succinctly when it held as follows: “The law is trite that a person seeking to enforce his right under a contractual agreement must show that he has performed all those terms which ought to have been performed by him…” The Defendants in Paragraph 12 of their Statement of Defence denied the fact that the Claimant set and marked scripts for the examination under reference but DW1 during cross examination acknowledged the fact that the Claimant set and marked examination script for the courses he taught. The Claimant in his averments in Paragraph 11 of his Statement of Facts stated that upon resumption of the 2012\2013 academic session, he immediately began teaching the lecture subjects he has been assigned to teach and was already in his third session when the head of Public Law Department Mrs. M.O. Izzi, acting on the instructions of the Vice Chancellor, directed the Claimant to stop teaching until further notice, this was done in the presence of the Dean of the Faculty of Law Dr. O.V.C. Okene. The Claimant, yet unrelenting, focussed on other non-academic activities assigned to him such as attending and participating in the Faculty Board meetings and participating as a delegate of the defendant in the 46th Conference of National Association of Law Teachers. It was counsel’s further submission that the Defendants in defence to the Claimants claim pleaded in paragraph 5, 6, 7, that the Claimant has withdrawn his service from the University. The Defendants came about this conclusion from the purported internal memorandum issued to Mrs. M.O. Izzi, who in turn responded in writing and stating that the claimant has not been reporting for duty in the faculty in a letter dated 7th September 2012, which cannot be true as the Claimant had led credible evidence to prove that even though the Defendants had stopped the payment of his salaries for several months before this action and ever since, he continued to carry out his duties to the Defendants in every capacity that is needed of him. Counsel went further that the Defendant had after calling their star witness, DW1, brought a motion dated 5/3/2014 seeking to call the Dean of the Faculty of Law of the Defendants, Dr. O.V.C. Okene. The Defendants through the Secretary of their Counsel deposed to the fact that calling this particular witness would lend more credence to their case, especially with respect to the averments of the Claimant as to the facts that he received the marked scripts of the Claimants. The witness would have also provided the Court with some insight into the Claimant’s averment that the Vice chancellor through Mrs. M.O. Izzi, the Head of Public Law department asked the Claimant to stop teaching. The application which the Claimant’s Counsel vehemently opposed was subsequently granted but the said witness failed to come to Court and testify. Counsel proceeded to invite the court to invoke the provisions of Section 167 (d) of the Evidence Act 2011 against the Defendant with respect to the facts pleaded and tied to the Claimant’s averment under reference, as the Defendant has by its conduct withheld evidence from the Court. Counsel indicated further that assuming without conceding that the Head of Department created a register of attendance which was not signed by the claimant, the question would arise if that amounts to a ground for withholding the Claimant’s salary or terminating his employment. This counsel answered in the negative, and he stated further that the Claimant was not issued a query or brought before a disciplinary panel for any known offence or misconduct. The Claimant was not even afforded the opportunity to be heard, a right conspicuously upheld by Section 36 of the 1999 Constitution, before the defendant dealt so capriciously with him. According to Counsel, there is no better demonstration of oppression, abuse of power and wickedness which is often alleged against authorities in the Universities. To counsel, the Defendant being a statutory body is governed by the law establishing it and regulation in its relation with its employees which is its contract of service. The Claimant’s employment and determination of same are all guided by this contract of employment which was pleaded by the Defendant in this suit. Specific reference was made to the provisions of the said Regulations with respect to withdrawal from service which the defendants allege against the Claimant. Section 4 (xxxviii) of River State University of Science and Technology, Regulations Guiding the Contract of Service of Senior Staff provides that “Withdrawal from service means the termination of an employee’s services at his own option after serving for 10 years or more but less than 5 years”. From the above, the Claimant submits that the Defendant’s defence holds no water as the above regulation has no relevance to this case. The Claimant was employed in March 2004. This is less than the time provided by the above mentioned document and as such is excluded from the withdrawing his services at his own instance, which of course he never did. Exercise of option is voluntary and not by oppressive dictation or ultimatum. According to Counsel, the Defendant’s defence is misleading. The Defendant in paragraph 12 of their Statement of Defence denied the fact that the Claimant prepared the examination questions and that he marked the scripts, but DW1 on cross examination affirmed the Claimant’s averment that he indeed marked the script. This testimony of DW1 being the Defendant’s star witness ought to carry serious weight in the Court’s determination of this matter. See Odi vs. Iyala (2004) 8 NWLR (pt.875) 283 at 308, para E-G. Counsel urged the court to resolve issue 1 in favour of the Claimant. In arguing issue two (2), counsel submitted that the defendant did not justify its withholding of the salary of the claimant. It is basic in the contract of employment that once a party has fulfilled his part of a contract he immediately earns the right to insist on the other party fulfilling its own part. In this case the defendant has fully enjoyed the performance of the contract but oppressively refused to perform its own obligation to the claimant under the contract. It is counsel’s submission that the defendant is not justified in any way in law and fact, and the employer’s primary duty as soon as the employee performs his duty is to pay him as agreed. According to Counsel, the Claimant need not cite any legal authority to prove this assertion. He therefore urged the court to resolve Issue two (2) in favour of the Claimant. In the circumstance we also urge that issue 2 be resolved in favour of the claimant. Counsel to the Claimant proceeded in his final written address to react seriatim to the 4 issues formulated in the Defendant’s written address. Reacting to issue one (1) formulated by the defendant in its address, Counsel to the Claimant described as misleading, the defendant’s assertion that the proper party to this suit should have been the University Council. He went on that the said argument does not in any way deal with the substantive issue before the Court. He cited Section 1 (2), of the University of Science and technology Law, Cap 133, Laws of Rivers State, Vol.6, which provides that “The University shall be a body corporate which can sue and be sued”. Section 4 (d) and (i) of the same law also provides that the University shall also have powers to provide amid other things the discipline and welfare of its staff, and also the University is also empowered to enter into binding contracts which it shall approve. Nothing is mentioned of the Council. According to Counsel to Claimant, the Council is only one of the arms of the University. It is the River state University of Science and Technology that the Claimant entered into a contract of employment or rather that employed the Claimant and not any other party. The provision of the law cited above puts to rest any doubt about the proper party to this suit. It is trite law that where a statue is clear and unambiguous; it should be constructed with its simple meaning. There exists no ambiguity with respect to this Law. It is also the Rivers State University of Science and Technology through its Bursar that wrote Exhibit C3, being the letter dated 31/10/2012 asking the Claimant’s bankers, Skye Bank Plc. to withhold payment of the Claimant’s salaries for October and November 2012 salaries and not any other person, natural artificial. Besides this, it appears to the Claimant that the defendant engaged in a voyage of trying to surprise the claimant by raising issues which were never canvassed in its pleading or evidence. This sort of “ambush practice” is the kind of practice that Courts have continued to discourage. The Defendant would have done a great service to this Court in the just dispensation of this suit by bringing an application to join the parties or any party it feels is the proper party to this suit or raise an objection to the issue but he failed to do so all through the trial of this matter. Even when they filed a preliminary objection, they did not include the said issue into their application. In reaction to the defendant’s issue two (2), Counsel submitted that the Claimant in paragraph 6 of his evidence on oath stated that he initially supported the strike but after a compassionate rethink on behalf of the innocent students of the institution, initiated moves to have ASUU call off the strike and return to work which he also did. The Claimant on cross-examination by Defence Counsel stated that he returned to the classroom before the publication of the Beacon Newspaper of September 28, 2012, he returned to work in time to set questions for his students in Law of Evidence and Administrative Law. The defendant did not effectively deny or challenge this. Counsel to the Defendant probed further by asking the Claimant whether he is aware that some lecturers set questions for courses that they did not teach of which the Claimant answered that he is not aware, and that such practice is unethical. The Claimant further stated that the strike crippled academic activities in the University and that it wasn’t until some form of normalcy had returned to the University environment that the school was able to conduct its business of conducting examinations. Even DW1 on cross-examination informed the Court that when ASUU wrote to the Defendant, it crippled academic activities in the University as its entire academic staff stopped work. Reacting to the defendant’s issues 2 and 3, Counsel answered in the negative, the question as to whether the defendant has been prejudiced in any way from the way the relief referred to was pleaded. He went further that at every turn of this matter, the defendant has always favoured meaningless technicalities as against the substantial matter to be adjudicated in the suit. The Claimant has pleaded that his salaries have not been paid since August 2012 and has by his reliefs sought to aid the Court by informing the Court that his monthly salary of N307,000.00 was increased in the month of October 2012 to N336,000.00 per month. The facts leading to the grant of this relief have been succinctly canvassed in the Claimant’s Statement of Facts and other documents now before this Court. More so the said relief would be in consequence of judgment of this Court if the Court if the Court finds for the Claimant. Counsel reiterated the fact that this case is far worse than a case of dismissal of a servant whose employment has statutory flavour. In such a case once the court finds that the dismissal is unlawful, it can order reinstatement which restores the employee to his employment and all his benefits as if he was never terminated. That includes all the increments and allowances which he would have earned if the employment had not been tampered with. See Olaniyan vs. University of Lagos, supra pp 465-467. In this case there was no sort of disciplinary proceeding against the claimants but only the defendant’s capricious refusal to pay his remuneration notwithstanding that he was working. The claimant in paragraph 15 (3) unequivocally pleaded and claimed to be paid “the sum of N336,000.00 per month or any increased sum from time to time as salary per month from May 2013 until judgment is delivered.” One wonders how the defence counsel can claim that the claimant took him by surprise on the issue of the salary and increment. Moreover, the defendant did not deny the claim of the amount in question. It is humbly submitted that the lack of pleading cannot be cured by address of counsel. Counsel concluded by urging the court to hold for the Claimant that from the totality of the evidence adduced by the claimant in proof of his claims against the defendant, he is entitled to all its claims as contained in paragraph 15 of his Statement of Facts; and that the defendant has failed to show to the court why the matter should be determined in its favour. In its reply on points of law filed on the 8th day of July 2014, counsel to the defendant opined that the Claimant seems to have misconstrued and misapplied the legal positions on the submissions canvassed by the Defendant in its final written address. According to counsel, the Claimant left most of the legal issues raised by the Defendant, unanswered and unattended to; and where the Claimant attempted to proffer legal response to the issues raised by the Defendant, such answers were based on wrong principles of the law. Counsel pointed out the following: a. Contrary to the position of the Claimant that he was employed by the University, Counsel to the defendant submitted that by Section 6 (2) of the University Law Cap 133, Laws of Rivers State, “All members of staff of the University shall be employees of council”. b. The Claimant after complaining of an attempt to ambush him submitted that the Defendant should have brought an application to join the parties. This submission of the Claimant according to Counsel is without any legal basis. He went on that the position of the law was aptly laid down in CHIGA vs. UMARU (1986) 3 NWLR (pt. 29) 460 where it was held that “A plaintiff has a legal duty to bring to court all persons who may be affected by the decision in the case so that the matter in dispute could be resolved once and for all”. See PEANOK INVESTMENT LTD. vs. HOTEL PRESIDENTIAL(1982)12SC1; EKPERE & ORS. vs. AFORLE & ORS. (1972) All NLR Pt. 1 220. c. It was the submission of counsel for the defendant that the Claimant has failed to answer the question whether the Rivers State Government will be affected and bound by the court’s judgment in view of the admission of the Claimant that it is the Rivers State Government through the Ministry of Finance that pays salary. He submitted therefore, that it is this argument which the claimant failed to reply to and which, he urged the court to be persuaded by, is that all parties that will be bound by the judgment of court must be made a party. PELFACO LTD. vs. WAOS LTD. (1997) 10 NWLR (pt. 524) 222 at 240 d. Counsel further submitted that the Claimant’s allegation of ambush is misconceived. This is because the Claimant is aware that one of the central issue in this trial is to determine, whether the Defendant is responsible for payment of salary. This much, counsel stated, was alluded to in the ruling of this court delivered on 13th January, 2014, where this court held on page 8 of the ruling: “Averments in both statement of fact and the statement of defence point to an open ended unresolved issue, the resolution of which could put an end to the act of withholding the Claimant’s salary, paragraph 11 of the statement of defence states thus: “The Defendant further avers that it was during the tenure of Dr. Asita O. Asita as Commissioner for Education that the Payment of University Staff salary was moved to the Ministry of Finance, when the issue of Ghost workers came up. Following the deliberation on this issue, the Governing Council in the 1st Regular meeting held on 28th September, 2012 decided to formally request for granting of autonomy to the University a request which would have restored the payment of salaries to the Defendant, which request has not been granted. A copy of the minute of meeting the Governing Council is hereby pleaded and shall be relied upon during trials”. Counsel therefore submitted that it was incumbent on the Claimant to have joined the Rivers State Government and not to rely on sympathy or sentiment in proving his case. In ANIKE vs. S.P.D.C.N. LTD. (2012) 28 NLLR 150 this court held that sentiment no matter how eloquently presented command no place in judicial adjudication. Counsel therefore urged the court not to be swayed by issues bothering on sentiment and not lawfully canvassed in the Claimant trial address. It is trite law that the claimant is bound by his pleading and cannot give evidence contrary to his pleading. The Claimant is therefore bound by the averment in paragraph 9 of the statement of fact to the effect that following the publication, when the Defendant released timetable for examination, the Claimant duly set examination. It is submitted by counsel to the defendant that the Claimant cannot give contrary evidence that it was before the publication that he resumed, and not following the publication. This is more so, that examination is already on, and timetable released before the publication. Counsel submitted further that issues of pleading of special damages are not matters of technicalities but matters which go to the proof of entitlement to the claim. The questions raised in the defendant’s issues 3 & 4 are therefore substantial and are matters dealing with proof of the Claimant entitlement to the reliefs. They are not technicalities. Referring to paragraph 15(3) of the Statement of Facts, the Defendant submitted in reaction to the Claimant’s assertion that the Defendant did not deny the amount, that there is no pleading in the statement of fact on how the Claimant arrived at N336,000.00 from N307,000.00. Counsel submitted that the duty to deny a pleading only becomes incumbent on the Defendant, when facts are pleaded in his pleading and not in his deposition on oath. Since there is no pleading on the increment from N307,000.00 to N336,000.00 there was therefore no need to deny same. The law is trite that where a fact must be specifically pleaded, failure to cross examine will not relieve the Claimant of the burden of proof SHEHU vs. AFERE (1998) 7 NWLR (Pt. 556) Pg. 115. The defendant went further to make the following reply on points of law to the issues raised by the Claimant: (i) Reference to the case of OLANIYAN & ORS. vs. UNIVERSITY of LAGOS (1985) All NLR 363, is not applicable and not relevant to the facts of this case. (ii) Payment of wages is not automatic. CHARLES UDUAGBANAM vs. FEDERAL CAPTITAL DEVELOPMENT AUTHORITY (2003)10 NWLR Pt. 839, 487. Counsel to the defendant submitted further that the reference to Honourable Justice Karibi Whyte as the Chairman of Council of the Defendant and the argument canvassed in form of aspersion or condemnation of the eminent jurist is most inappropriate and irrelevant and should therefore be expunged. It was counsel’s further submission that (1) The fact that a worker proceeds on strike will deny him his wages. See Section 43 of the trade Dispute Act and the case of F.C.D.A vs. NZELU (supra) and SSANU vs. FGN (2008) 12 NLR pt. 33 p. 407. (2) Reference to Section 167(d) of the evidence Act 2011, and failure to call Dr. O.V.C. Okene will amount to withholding evidence does not represent the position of the law, in that Section 167(d) deals with failure to call evidence and not failure to call a particular witness. This position of the law was reiterated in MOBIL vs. ASUAH (2001) 30 WRN 25 at 42 per EDOZIE J.C.A, that: “It is quite settled the provisions of section 149(d) of the Evidence Act 1990 (which is impair material with section 167(d) concerned with withholding of evidence and not with failure of a party to call a particular witness” Tewogbede vs. Akande (1968) 1 All NLR 404 Musa vs. Yerima (1997) 53 LRCN 2548. (3) Where a worker participates in strike he is not entitled to salary for the period of the strike. It is submitted that the fact that August and September salary were paid to him is immaterial. OBO vs. COM. of EDUCATION BENDEL STATE (20001) 2 NWLR pt, 698 p. 625 (4) Where an employee disobeyed the lawful directive of his employer to sign registrar, he may be sanctioned. See ANTE vs. UNIVERSITY OF CALABAR (2001) 3 NWLR (Pt. 700) Pg. 239 at 258. OLATUNBOSUN vs. NISER COUNCIL (1988) 3 NWLR (Pt. 80) Pg. 25. Also in SULE vs. NIGERIA COTTON BOARD (1985) 2 NWLR pt. 5 p. 17 at 38, OBASEKI J.S.C held thus: “When a servant grows too big to obey his master, the honourable cause upon to him is to resign in order to avoid unpleasant consequence should an occasion which calls for obedience be serviced with disobedience. Both common law and statute law brook no disobedience of lawful order from any servant high or low, big or small such conduct normally and usually attract penalty or summary dismissal. Disobedience ranks as one of the worst form of misconduct in any establishment”. (5) The Claimant has variously alluded to non-payment of salary as being unfair, yet he has failed to consider the effect of refusal to obey a directive to indicate that he has resumed, and what that will do to the image of the institution. Counsel submitted that justice is not for the Claimant alone, but also for the Defendant and its ability to enforce its directive on its employees OLATUNBOSUN vs. NISER COUNCIL. After a careful perusal of the pleadings and the evidence adduced by the parties in this suit, certain facts appear not to be in dispute in this matter. The defendant did not dispute the fact that the claimant is an employee of the defendant and he is a lecturer in the Faculty of Law of the defendant. I also find that it is not in dispute that in August 2012, the Academic Staff Union (ASUU) of the defendant embarked on a strike action and the claimant, who is a member of ASUU, also took part in that strike. It is also clear from the evidence of the parties before this court that the claimant’s employment has not been terminated by the defendant. After a careful evaluation of this matter, I have observed that the dispute between the parties is quite a simple one. The gist of the claimant’s claims is for payment of his salaries from the month of August 2012 to the date of judgment in this suit. The basis for this claim, from the evidence of the claimant is that in August 2012, ASUU, of which he is a member, embarked on strike and all academic staff, including the Claimant laid down their tools. In that month of August 2012, he noticed that his salary was not paid until in October 2012 when his bank alerted him of payment of some monies into his account. He was however not allowed to access the account by the bank on the instruction of the defendant vide Exhibit C4. It is further that claimant’s case that he has resumed from the strike, conducted exams and has taken part in other activities of the defendant. He has contended that notwithstanding that he has resumed from the strike, the defendant has refused to pay his salaries up till the date of this suit. It is for this reason he instituted this suit claiming the following reliefs from the defendant- 1. A Declaration that the continued actions of the Defendant in withholding the salaries of the claimant from August 2012 up to the date of filing this suit is unlawful and a breach of the Claimants rights under his contract of employment. 2. The sum of N2,966,000:00 (Two Million Nine Hundred and Sixty Six Thousand Naira only) being and representing the Claimant’s salaries from August 2012 to September 2012 at the rate of N307,000. 00 (Three Hundred and Seven Thousand) for each month, and from October 2012 to April 2013 at the rate of N336,000. 00 per month. 3. The Sum of N336, 000.00 per month or any increased sum as salary per month from May, 2013 until judgment is delivered. 4. 10% interest per annum on the above until the date of judgment and thereafter until the judgment sum is paid. 5. An Order of this Honourable Court restraining the Defendant, its privies, servants or other agent from by any means or in any way withholding the salaries of the claimant in this suit or interfering with his employment. The defendant, on the other hand, has contended in its defence that consequent upon the strike embarked on by the claimant, from which he has not resumed to work till date, he is not entitled to salaries for the period he was on strike by reason of the “No Work No Pay” policy of the defendant. The defendant has also contended that it is not responsible for the payment of the claimant’s salary but the responsibility of the Rivers State Government. The dispute in this suit having been narrowed down thus, one issue has accordingly been identified for determination in this suit, which is- Whether the claimant is entitled to the reliefs he seeks against the defendant? Section 43 (1) of the Trade Dispute Act, Cap T8, LFN 2004 provides as follows- 1) “Notwithstanding anything continued in this Act or in any other law- (a) Where any worker takes part in a strike, he shall not be entitled to any wages or other remuneration for the period of the strike, and any such period shall not count for the purpose of recording the period of continuous employment and all rights dependent on continuity of employment shall be prejudicially affected accordingly” This statutory provision has made it clear that any worker who embarks on strike action is not entitled to be paid salary for the period of the strike. The principle of the provision of section 43 (1) TDA has equally been applied in a number of cases. The Court of Appeal in F. C. D. A. vs. NZELU (2014) 5 NWLR (Pt. 1401) 565 held thus: “No staff of any organization can be entitled to the payment of salaries etc, if he stays at home and refuses to go to work and perform his duties”. Also, in SSANU vs. F.G.N (2008) 12 NLLR (Pt. 33) 407, it was held that- “A strike whether legal or not falls squarely within the ambit of the said section and for which, the strikers are disentitled from wages and other benefit envisaged by the section”. In this instant case, the facts of the claimant’s case show that there was a strike in August, 2012 and he took part in the strike. It is also seen from his evidence that as at September 28 - October 4, 2012 when he published Exhibit C1, he was still on strike. It was after the publication that he returned to work. From these pieces of evidence of the claimant himself, it is obvious that he was on strike in the months of August and September 2012. By the provision of section 43 TDA, he is not entitled to the salaries of August and September 2012. Whether the claimant is entitled to salaries from October 2012 to the date of this action will depend on whether he has been able to prove that he has resumed work from the strike. This issue, that is whether or not the claimant has resumed from the strike, appears to be the central point in the dispute between the parties. According to the defendant, the claimant is still on strike and has not resumed therefrom. DW1 testified that by a Memo dated 7th September 2012 that is Exhibit DD5, the HOD of Public Law department of the defendant informed the defendant’s Registrar that only the Claimant and one (1) other lecturer have not resumed from strike in the department. The witness testified further that up till the time of this suit, the defendant has not received any contrary communication from the HOD and the defendant therefore believes that the claimant is yet to resume from the strike. In proving that he has resumed from the strike, the claimant gave the following evidence- i. He set exams, marked questions papers and uploaded the scores into the defendant’s website. He also testified that copies of the marked scripts were received and acknowledged by the Dean of the Faculty of Law. The claimant tendered Exhibits C5 and C6 in proof of these facts. ii. On the defendant’s resumption for the 2012/2013 academic session, the claimant commenced teaching until January 23rd 2013 when he was asked to stop teaching by the HOD on the directive of the Vice Chancellor until further notice. iii. He has however continued to take part in other activities assigned to him including participating in Faculty Board meetings and he was sponsored by the defendant as part of its delegation to the 46th Conference of the National Association of Law Teachers held at the University of Ilorin in April 2013. Although the defendant, in the statement of defence and in the deposition of DW1, denied that the defendant took part in the examinations, DW1 under cross examination testified that the claimant actually prepared exam questions and he marked exam scripts. The claimant testified under cross examination that he resumed work after he published Exhibit C1 which was published 28th September- 4th October 2012. I have examined Exhibit C5 and it is indicated thereon that the exams were taken on 10/10/2012. This was about the period the claimant said he resumed work. I have noticed that the defendants basis for saying the claimant has not resumed is the absence of information from the claimant’s HOD to the effect that the claimant has resumed work and the fact that the claimant has not written to indicate he has resumed work. I do not think it is the claimant’s responsibility to write to inform the defendant that he has resumed from the strike. The fact of his resumption to work should be determined by his resumption to his work activities in the university. This he has shown clearly. It is the HOD’s duty to inform the defendant accordingly and if that has not been done, the failure should not be held against the claimant. What is important is whether the claimant has actually resumed work. I am satisfied from the evidence before me and I find that the claimant did resume from the strike in October 2012. The claimant therefore ought to be paid his salaries from October 2012. I am further reinforced in this view by the absence of any evidence to show that the claimant’s employment has been terminated. The claimant’s employment is statutorily flavoured and the defendant has not shown this court that his employment has been terminated in accordance with Section 17 of RSUST Law. It thus means that his employment subsists. I cannot subscribe to the defendant’s contention that it was the claimant who has refused to resume from the strike hence, the non-payment of his salary. I do not believe someone on strike will conduct exams, mark papers and teach students and take part in other activities in the school. If the claimant employment still subsists and he has been shown to have resumed from strike, and is actually working, I do not find any justification in the continual denial of his salary. The claimant has shown that he is back to work and he is therefore entitled to his salaries. He is still in service and has not been terminated nor has the defendant taken any disciplinary action against him. See DW1 in Cross examination. In view of these facts, the defendant cannot be justified in refusing to pay the claimant his salaries. At this point, I will now consider an important issue raised by the defendants counsel in his written address. In his arguments on issue one formulated by him, counsel to the defendant submitted that the claimant has not joined his employer, which is the Governing Council of the defendant, and the body responsible for payment of his salary, which is the Rivers State Government, to this suit. Counsel submitted that these persons are necessary parties to this suit and their non-joinder is fatal to the claimant’s claims. In paragraph 2 of the statement of fact, the claimant pleaded that he is an employee of the defendant. This fact was admitted by the defendant in paragraph 1 of the statement of defence. This present submission of counsel to the defendant is in my view, an attempt to set up a different case from a fact already admitted by the defendant. It is trite that facts admitted need no further proof as it is deemed proved. Notwithstanding this position of the law, I shall consider the issue further. If I understand the contention of the counsel to the defendant very well, he seems to be saying that the Council is a different entity from the defendant and it was the Council and not the defendant who entered into contract of service with the claimant. The facts of the claimant’s case show that his complaint is principally against the defendant and his claims are sought against the defendant. The claimant has pleaded that he is an employee of the defendant and it was the defendant that refused to pay him his salary. He therefore sought orders against the defendant for the payment of his salaries. The question arising from the forgoing is whether without joining the Council or the Rivers State Government, the claimant’s claims can be sustained against the defendant? In order to determine the effect of non-joinder of the Council and the Rivers State Government to this suit, these questions must necessarily be answered- i. Is the matter likely to be defeated by the non-joinder? ii. Is it possible to adjudicate on the matter unless these parties are added as defendants? iii. Are these parties’ persons who should have been joined in the first instance? iv. Are these parties’ persons whose presence before the court as defendants will be necessary in order to enable the court effectually and completely adjudicate all the questions involved in the matter? See COTECNA INTL. LTD vs. CHURCHGATE NIG. LTD 2011 All FWLR (Pt. 575) 252 at 282-283; OLADELE vs. AKINTARO 2011 All FWLR (Pt. 590) 1346 at 1359 The defendant is established by Section 1 of the Rivers State University of Science and Technology Law 1980 as a corporate body which can sue and be sued. In Section 4 (1) of the Law, the defendant has powers, among others, to- a) ---------- b) Institute professorship, readership, lecturership and other posts and offices and make appointments thereto. c) -------- d) To provide for the discipline and welfare of members of the University. Subsection (2) of Section 4 provides that these powers conferred on the university shall be exercised on its behalf by the Council or the Senate. Section 3 of the Law provides that the defendant shall consist of certain bodies, among which is the Council. The Council, in Section 6 – (1) Shall be the governing body of the university and shall be charged with the general control and superintendence of the policy, finances and property of the university, including its public relations. (2) All members of staff of the university shall be employees of Council. I took time to set out the above provisions in order to determine whether the defendant and the Council are two different persons such that suing one without joining the other, in the nature of the claimant’s claim, renders the claim defective as contended by the defendant’s counsel. From the provisions of the law set out above, the claimant, a lecturer, no doubt is an employee of the defendant. The defendant has the power to appoint lecturers which power it exercises through the Council. The Council is a component and an integral part of the university. The defendant only acts through the Council. This was the opinion of the Supreme Court in a similar matter where the University of Ilorin Act was considered. In OLORUNTOBA-OJU vs. ABDULRAHEEM 2009 13 NWLR (Pt.1157) 83 at 145, the Supreme Court held- “The act of the University of Ilorin is performed through its Council. Statutory provisions establishing a corporate body like the University of Ilorin also empowers the body to employ staff and discipline them” Therefore, the defendant and the Council are not two different persons. The council has no distinct legal personality other than that of the defendant. An order against the defendant is binding against all its components, being part and parcel of the university. Therefore, suing the defendant without joining its Council, in my view, does not defeat the claimant’s case. In paragraph 10 of the deposition of DW1, she testified that it is the Rivers State Government through the Ministry of Finance that pays the defendant’s staff salary. It is her evidence that “the defendant merely submits payment voucher of staff to the Rivers State Government” who pays the salaries. DW1 testified further in paragraph 13 of her deposition that “it is only on receiving clearance from Dean or HOD that the defendant would forward the name of the claimant to the bursary department for inclusion into payment voucher”. This evidence shows that it is the defendant’s responsibility to ensure that the claimant is paid by forwarding his name to the State Government for payment. The inference from the evidence of DW1 is that the claimant has not been paid because the defendant did not include his name in the voucher taken to the State Government. It has been my view in this judgment that the defendant is the claimant’s employer. It therefore behoves on the defendant to pay salary to the claimant for his services and if that is not done, the claimant will have a cause of action against the defendant and not the Rivers State Government who is not the claimant’s employer. How or through whom the defendant pays the claimant’s salary is the decision of the defendant. It is also my considered opinion that the arrangement between the State Government and the defendant leading to the reliance by the defendant on the State Government for payment of staff salary should not be read into the contract of employment between the claimant and the defendant. In my view therefore, the defendant’s failure to forward the claimant’s name for payment, amounts to a refusal by the defendant to pay the claimant’s salary. In this situation, the State Government is not a necessary party to the claimant’s claim against the defendant and the omission to join the State Government to the suit has no adverse effect on the claimant’s case. The defendants’ counsel’s argument that non-joinder of the Council or the State Government is fatal to the claimant’s case appears to me feeble. The non-joinder of Council or the Rivers State Government is not sufficient to affect the claimant’s claim. See MALU vs. S.G.C NIG. LTD. 2003 FWLR (Pt. 165) 534 at 543. Once a party has a standing to sue, his failure to join a defendant does not and cannot defeat the action if the cause or matter can be as between the parties actually before the court. Therefore, whether or not Council or the State Government is joined to the suit does not defeat the suit. See A.S.T.C vs. Q.C LTD 2009 All FWLR (Pt. 474) 1444 at 1484; A.G FERRERO & CO LTD vs. NNAMANI 2006 All FWLR (Pt. 339) 990 at 998. From the facts presented before the court, this matter can be determined between the claimant and the defendant without joining the said parties. The claimant’s claim is for his salaries from the defendant who is his employer and to whom he renders his services. It is also the defendant’s responsibility under the contract of employment to pay the claimant his salaries. I hold that the parties as constituted in this matter are sufficient to effectively determine the claims of the claimant. Having resolved the issue raised by the defendant’s counsel, I shall now turn to consider specific reliefs sought by the claimant. In reliefs 2 and 3 on the complaint, the claimant sought- “2. The sum of N2,966,000.00 (Two million, nine hundred and sixty six thousand naira ) only being and representing the Claimant’s salaries from August 2012 to September 2013 at the rate of N307,000.00 (Three Hundred and Seven Thousand only) for each month and from October, 2012 to April, 2013 at the rate of N336,000.00 per month. 3. The sum N336,000.00 per month or any increase sum as salary per month from May, 2013 until judgment is delivered” I have resolved in this judgment that the claimant is not entitled to be paid for the months of August and September 2012 when he was on strike. Therefore, his claim for salary for those months fails. Having earlier held that the Claimant has established that he resumed from the strike in the month of October 2012, he is therefore entitled to his salary from the month of October 2012. The question that will then arise is: how much is the Claimant’s monthly salary? The Claimant’s only reference to how much he earned as salary is seen in the relief clause of the Statement of Facts, particularly Paragraph 15(2) wherein the August and September 2012 salaries are said to be N307,000.00. No further mention was made of this figure, as the Claimant’s further claim was premised on a purported increased sum of N336,000.00 per month. I am unable to give consideration to this said increase, as I cannot find any fact pleaded or evidence on record to support the increment claimed. The Claimant’s claim for salary at the rate of N336,000.00 per month from October 2012 to date of judgment is therefore refused. However, in view of my finding that the Claimant is entitled to his salaries after he returned to work, it is incumbent upon the court to determine what the Claimant is entitled to as salary, taking into consideration the totality of the evidence and pleadings before the court. In spite of the submissions of counsel to the defendant to the effect that further proof is required in cases of claims for salaries, I have the discretion under Section 14 of the NIC Act 2006 to make such order or grant any remedy as may be just in order to completely resolve the issue in dispute between the parties. Section 19(d) of the NIC Act dealing with the power of the Court to make certain orders, provides that the Court may and where necessary make any appropriate order, including an award of compensation or damages in any circumstances contemplated by this Act or any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear. The above statutory provisions are further strengthened by the recent decision of the apex court in the unreported case of HON CHIGOZIE EZE & 147 OTHERS vs. GOVERNOR OF ABIA STATE & 2 OTHERS SUIT NO SC 209/2010 in a judgment delivered on the 11th day of July 2014 where his lordship Bode Rhodes-Vivour JSC held that “Judges are expected at all times to decide according to the justice of the case and what is right, and always lean towards equity instead of strict law”. His lordship Onnoghen JSC, held while concurring with the above reasoning in allowing the appeal that a mere declaratory order would confer no material benefit, and that that would not amount to justice. A consequential relief is therefore necessary, as it enables the court to do justice between the parties. The Claimant has stated in Paragraph 15(2) of his pleadings (Statement of Facts), and also corroborated in Paragraph 15(2) of his written deposition on oath that his salary for the months of August and September was N307,000.00 per month. This figure has neither been controverted by the defendant in their evidence on record nor in their pleadings. The law is trite that uncontroverted or unchallenged facts are deemed proved. I shall therefore place reliance on the said figure of N307,000.00 as the Claimant’s monthly salary. In view of the foregoing, I hereby order as follows: 1. The defendant is ordered to process and pay to the claimant, his salaries from October 2012 up to the date of this judgment at the rate of N307,000.00 per month (x 25 months), amounting to N7,675,000.00 (Seven Million, Six Hundred and Five Thousand Naira) only. The said sum shall be paid to the Claimant within 30 days of this judgment. 2. The defendant is restrained from further withholding the Claimant’s salaries or indeed doing any act that would amount to withholding his salaries, his employment having not been terminated. Parties are to bear their cost. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Presiding Judge