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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: September 22, 2014 SUIT No. NIC/PHC/52/2013 Between Gilbert Ekemezie Umehaa - Claimant And Power Holding Company of Nigeria PLC - Defendant Representation: Dike Udenna for the Claimant JUDGMENT This suit was originally commenced by way of Writ of Summons dated and filed at the Federal High Court, Port Harcourt on the 5th day of June 2008. On an application by the Claimant, the suit was transferred to this Court by an order of the Federal High Court made on the 20th day of February, 2013. By an amended complaint filed on the 14th day of April 2014 in this court, the Claimant herein, claimed against the defendant the following reliefs: i) A Declaration that by the terms and conditions governing the employment of the Claimant with the Defendant, the Claimant is entitled to continue in office in the service of the Defendant until he attains the retirement age of 65 years or until the employment is duly and properly determined in accordance with the governing terms and condition as stipulated in the Defendants Conditions of Service handbook dated July 1998. ii) A Declaration that the Report and Recommendations of the Ad Hoc Disciplinary Committee of the Defendant made in September/October 2003 as it relates to the Claimant is unlawful, perverse, null and void for non-compliance with the rules of natural justice. iii) An Order setting aside the Report and Recommendation of the Ad Hoc Disciplinary Committee of the Defendant of September 2003 for being unlawful, perverse, null and void for non-compliance with the rules of natural justice. iv) A Declaration that the termination of the Claimant’s appointment with the Defendant by letter Ref:0227/2.04/310/2003 dated 5th December, 2003 based on the recommendations of the Ad Hoc Disciplinary Committee is unlawful, ultra vires, ineffective, null and void. v) An Order setting aside the purported termination letter of the Defendant dated 5th December, 2003 with Ref: 0227/2.04/310/2003 for being wrongful and ultra vires the Defendant by reason of being based on the unlawful and void recommendations of the Ad Hoc Disciplinary Committee of the Defendant. vi) An Order that the Claimant Salaries, Allowances and other entitlements from December 2003 till date be computed and paid over to the Plaintiff. vii) An Injunction restraining the Defendant, its servants or agents from ejecting the Plaintiff from his No. 52 Accra Street, Port Harcourt official quarters or in any manner interfering with the Claimant’s Legal Service entitlements until the lawful determination of his contract of service with the Defendant. By an order of the Federal High Court dated the 20th day of February 2013, this case was transferred to the National Industrial Court Port Harcourt Division on the 5th day of April 2013. The case was subsequently assigned to this Court on the 22nd day of April 2013. Parties were ordered to re-file their processes to bring them in compliance with the Rules of this court. This, the Claimant complied with, while the defendant did not. On the 19th day of December 2013, the defendant’s Counsel K. C. Ngumoha was present in court when the matter was adjourned for three (3) consecutive days (18th, 19th and 20th February 2014) for hearing. On the 18th day of February, the defence did not show up and have since stopped appearing in court. They had also not complied with the order of court made on the 24th day of September 2013 to re-file their processes. No good cause was shown for their absence; therefore on the strength of Order 19 Rule 2 of the NIC Rules 2007, the court granted leave to the Claimant to proceed to prove his case. Hearing commenced on the 18th day of February 2014. The Claimant testified for himself as CW1, after which the case was adjourned to 19th February 2014 for cross-examination. The defence still did not appear, and the matter was again adjourned to 20th February 2014. At this point, Counsel to the Claimant applied to the court on the strength of Order 19 Rule 2 that the defendant should be foreclosed from defending the action. The application was granted, and the Claimant closed his case. The court ordered the Claimant to file and serve his Final Address in accordance with Order 19 Rule 13 of the Rules of this court. Meanwhile, the Claimant on the 24th day of March 2014, filed a motion for amendment of his complaint and statement of facts. This was granted on the 8th of April and the Claimant was given 7 days to file his amended complaint and statement of facts. The Claimant proceeded to comply, and subsequently on the 25th day of April 2014 vide a motion for extension of time, filed his final address, which was duly served on the defendant on the 13th day of May 2014 as shown in the proof of service on page 479 of the case file. The Claimant’s final address was deemed properly filed and served on the 28th day of April 2014 and the case was adjourned to 25th June 2014 for adoption of final address. The Claimant adopted his Final address on the 25th day of June 2014. The facts of the case as distilled from the Statement of Facts is that the Claimant was first employed as a Thermal Operator, which appointment he accepted with effect from 8th May 1985. His appointment was confirmed with effect from 8th May 1987. The terms governing the Claimant’s appointment are as contained in the letter of appointment, the National Electric Power Authority conditions of service dated July 1998, the corporation’s enabling Acts and other policy circulars. Upon discovery of shady deals and illegal operations of some staff of the defendant, the Claimant issued an internal memo/query to the staff involved, and later applied for a change of post. Upon discovery of an alleged fraud in the defendant, various panels were set up at different times, none of which invited the Claimant. An Ad Hoc Disciplinary Committee was further set up and the Claimant was invited to testify in a procedure that was biased against him and was contrary to the rules of natural justice. His employment was subsequently terminated, hence this action. The Claimant’s Final address filed on the 25th day of April 2014 raised a sole issue for determination: “Whether the Claimant has made out a proper case for grant of the declarations of right and injunctive reliefs sought in all the circumstances of this case.” The Claimant maintain that his testimony was neither challenged by way of cross-examination nor contradicted by the Defendant in any way, therefore the Claimants case remains undisputed, unchallenged and uncontroverted by the Defendant The Claimant’s case as summarized in Counsel’s written address is that the Claimant was first employed as a Thermal Operator by the Defendant, which appointment he accepted with effect from the 8th day of May 1985. The terms and conditions of the employment are as contained in the letter of appointment and the Defendants conditions of service handbook otherwise called “the blue book”. Following an allegation of fraud in the Defendant’s system involving the dropping of customer’s accounts to the tune of N50, 000, 000.00 (Fifty Million Naira), after the investigations of about 5 different panels at different times over the same scandal, the Defendant set up an Ad Hoc Disciplinary Committee to further look into the scandal. It was this Ad Hoc Disciplinary Committee that invited the Claimant to testify before it in respect of the matter for the first time but its proceedings and procedure clearly betrayed partisan bias against the Claimant and was calculated at victimizing the Claimant irrespective of the actual facts or evidence before the Committee. In specific terms, the complaint of the Claimant is that: The Chairman of the Ad Hoc Disciplinary Committee was staying at the house of Zonal Computer Manager (Mr. Jude Ishichie) who himself was among those to be investigate by the same Committee and the Chairman of the Ad Hoc Committee demonstrated bias by shouting down at any person that mentioned the role of the Zonal Computer Manager at the proceedings. The Claimant was invited for interrogation and testimony before the Ad Hoc Disciplinary Committee along with other staff of the Defendant as mere witnesses to say what they know, one after another privately, concerning the alleged scandal generally. The Claimant was never afforded any opportunity to know what the adverse testimony against him was, by whom and to confront such witnesses including Mr. Adekunle and the Auditor who were said to have written incriminating reports against the Claimant. The Ad Hoc Disciplinary Committee invited witnesses one after the other in the absence of the Claimant and questioned them and recorded their answers to those questions. The Claimant was never invited to be present when the witnesses testified against him nor was he afforded any opportunity to correct or contradict the prejudicial testimony against him. The witnesses that testified before the Ad Hoc Disciplinary Committee were not allowed to give their testimony freely but were rather restricted to questions designed to elicit pre-determined answers by the Committee for the purpose of implicating and victimizing the Claimant. The Ad Hoc Disciplinary Committee failed and refused to take oral testimony from Mr. Davidson Adeniyi (Mr. Dave of the Computer System Associate (CSA) consultant) and Mr. Bulus Ahmadu in Port Harcourt but rather invited Mr. Bulus to Abuja for his testimony and in the absence of the Claimant. On the basis of these general breaches of the rules of natural justice which were also in contravention of the established disciplinary procedures of the Defendant as contained in the Blue Book, the Ad Hoc Disciplinary Committee proceeded to make perverse findings and conclusions all aimed at reaching their preconceived conclusion to victimize the Claimant in that: The Claimant reached perverse conclusions not supported by any evidence before it, particularly when it concluded that the Claimant “had escaped previous Ad Hoc Disciplinary Committees set up to unravel the now common fraudulent practices in Port Harcourt” when there was no testimony before the Committee to that effect and even before considering evidence before it. There was no handover note or indeed any evidence whatsoever before the Ad Hoc Committee that the Root password was ever handed over to the Claimant on the dates the fictitious postings were carried out on the Defendants’ systems but the Committee concluded that “he was in sole custody of the super password”. No witness testified before the Committee that the Claimant reported for his afternoon shift duly on 21st November 2002 earlier than the 2pm officially designated or that he performed the alleged fictitious postings but the Committee still concluded as follows: “he may have come into the centre to carry out the fictitious postings so as to introduce doubts.” Sometime thereafter on the 21st day of January, 2004 the Claimant received a letter Ref: 0227/2,04/310/2003 from the Defendant finding him guilty of “an act detrimental to the image or efficient performance of the Authority” (an offence in respect of which the Claimant was never queried, investigated or afforded any hearing) and purporting to terminate his employment with immediate effect “in accordance with regulation 41.8.18 of the 1998 conditions of service” and based on the recommendations of the Ad Hoc Disciplinary Committee. The Claimant rejected the findings and conclusions of the said Committee as well as the purported termination of his employment based on the said recommendations of the Committee and has approached this Honourable Court to set aside the same for being perverse and made in violation of the sacred principles of natural justice. Arguing the Claimant’s sole issue for determination which is “Whether the Claimant has made out a proper case for the grant of the declarations of right and injunctive reliefs sought in all the circumstances of this case”, Counsel urged the court to resolve the sole issue in favour of the Claimant and grant all the reliefs sought by the Claimant. Counsel drew the court’s attention to the fact that although the Defendant had earlier filed an Amended Statement of Defence on the 13th day of October 2009 wherein it listed two witnesses, it failed to appear at the trial of this case, did not call any of the listed witnesses and was formally foreclosed form defending this matter by order of this Honourable Court made on the 20th day of February, 2014. Relying on the case of LAWAL SANI NA’UMBA vs. ABUBAKAR AHMED NAHUCHE LER (2008) CA/K/EP/SHA/18/07, it was the submission of counsel to the Claimant, that the necessary implication of this is that the pleadings and accompanying witness statement on oath of the Defendants’ are deemed abandoned by operations of law and cannot be taken into account in the consideration of the facts of this case. The Court of Appeal held in the cited case at page 7 as follows: “It is the practice and by rule of litigation, parties are bound by their pleadings and pleadings which are not supported by evidence whatsoever, go to no issue. Again where there is no evidence led in support of any pleading, then the pleading is deemed also abandoned. See Remola Ltd &3 Ors Vs. N.B.N. Ltd (2003) 16 N.W.L.R (Pt. 846) 235, Olorunfemi Vs. Asho (2000)2 N.W.L.R (Pt. 643) 143, Egbunike Vs. ACB Ltd (1995)2 N.W.L.R. (Pt. 375)34, Yashe Vs. Umar (2003) 13 N.W.LR. (Pt. 838) 465. 10 It follows therefore that the reply to the petition filed by the 1st and 2nd Respondents, since no evidence was led in support thereof, is deemed to have been abandoned by them.” Reference was also made to the case of AGAGU vs. MIMIKO (2009) 7 NWLR (Pt. 1140) 342 at 424-425 and AREGBESOLA vs. OYINLOLA, LER (2010) CA/I/EPT/GOV/02/2010 at page 67 where it was specifically held that witness depositions which are not adopted by the witness are deemed abandoned. To the Claimant, it therefore follows that the pleadings and evidence of the Claimant in this case remains undisputed, unchallenged and uncontroverted and the Court is entitled to accept same as true and established facts on the basis of which this case is to be determined. See NZE vs. NPA (1997) 11 NWLR (Pt. 528) 210 at 219 paragraph C-D where the Court of Appeal per Rowland JCA state the positions of the law and pertinently held thus: “It is my view that the appellant uncontroverted evidence on this point ought to have been accepted by the trial court. It must be remembered that it is settled law that the court must accept as admitted and proved any unchallenged and uncontroverted piece of evidence.” See Oguma Associated Co. (Nigeria) Ltd. vs. IBWA (1988)3 SCNJ 13; (1988) 1 NWLR (Pt. 73) 658; Mohammed vs. Ali (1989) 2 NWLR (Pt. 103) 349 at 363.” According to Counsel, the Claimant is not unmindful of the well settled position of the law which is that even though the pleadings, facts and evidence of the Claimant remain unchallenged and un-contradicted and are deemed admitted by the Defendant, the Court is still duty bound to evaluate same and be satisfied that it is credible and sufficient to sustain the claim. In the case of GONZEE (NIG.) LTD vs. NERDC (2005) 13 NWLR (Pt. 943) 634 at 650 Paragraph D, the Supreme Court per Edozie JSC held that: “Even where the evidence adduced before it is unchallenged and un-contradicted, a trial court still has a duty to evaluate it and be satisfied that it is credible and sufficient to sustain the claim.” Counsel went further that the Claimant has pleaded sufficient facts and adduced ample credible evidence which shows that the Ad Hoc Disciplinary Committee of the Defendant breached the rules of natural justice in the conduct of its proceedings and that in consequence of this, their findings, conclusions and recommendations cannot stand. The amplitude and plenitude of the rules of natural justice was expantiated by the Supreme Court in ADENIYI vs. GOV. COUNCIL, YABATECH (1993) 6 NWLR (Pt. 300) 426 at 449 paragraph G-H where it held per Karibi-Whyte JSC as follows: “Our law recognizes two fundamental principles of justice as natural and inherent to the proper and effective administration of justice. These are that no person should be a judge in his own cause, and that the parties to a case should be given adequate notice and opportunity to be heard. At least both of these fundamental principles regarded as rules of natural justice are entrenched in the Constitution of the Federation 1979. These are universal principles of ancient origin and common to mankind. They were recognized by the Ancient Greeks and Romans, enshrined in the Holy Bible and recognized as part of our indigenous and other African cultures and philosophy of principles of justice. It is indeed, as asserted by Coke, a principle of divine justice.” To Counsel, it is the violation and breach of these principles that is the crux of the Claimants case. He said that the Ad Hoc Disciplinary Committee being an administrative body charged with the responsibility of conducting investigations and deciding the fate of the persons alleged to have committed the wrong, was duty bound to observe the rules of natural justice which is now encapsulated or enshrined in section 36 of the Constitution of the Federal Republic of Nigeria 1999, as amended. And that where they failed to do so as in this case, the Courts will not hesitate to set aside or tear down any conclusions or decisions reached by them in breach of the sacred rules of natural justice. In BAKARE vs. LAGOS STATE CIVIL SERVICE COMMISSION (1992) 8 NWLR (Pt. 262) 641 at 699 to 700 paragraph H to B, the Supreme Court per Nnaemeka-Agu JSC confirmed this position of the law and held thus: “all administrative bodies are bound to observe the rules of natural justice, of fairness in their numerous decisions which affect the rights and obligations of citizen, including employees of government. But they are not courts: Baba vs. N.A.A.T.C 5 NWLR (Pt. 192) 388. The Courts in exercise of their power of judicial review are constantly called upon to scrutinize the validity of instruments, laws, acts, decisions, and transactions. In the exercise of the jurisdiction, the courts can declare them invalid or ultra vires and void not because they are unconstitutional in terms of Section 33 of the Constitution but because they offend against rules of natural justice of audi alteram pertem, or nemo judex in causa, or offends against the rules of fairness, or otherwise offends the rules of natural justice. All these are in the realm of administrative, and not constitutional, law. The court can by its power of judicial review set them aside.” It was Counsel’s submission that in the instant case, the evidence before the Court shows that the Ad Hoc Disciplinary Committee breached the principle of natural justice in several material particulars as follows: a. The Claimant of the Ad Hoc Disciplinary Committee was staying at the house of the Zonal Computer Manager (Mr. Jude Ishichie) who himself was among those to be investigated by the same Committee and the Chairman of the Ad Hoc Committee demonstrated bias by shouting down at any person that mentioned the role of the Zonal Computer Manager at the proceedings. It is a cardinal requirement of the principles of fair hearing that the Tribunal or other Commission called upon to determine the civil rights and obligations of citizens of this Country must be constituted in such a manner as to secure its independence, neutrality and impartiality as required by Section 36 (1) of the 1999 Constitution, as amended. By allowing the Chairman of the Ad Hoc Disciplinary Committee to stay in the house of one of those under investigation, the Defendant breached the principle of fair hearing. It will be expecting too much of human nature to believe that the said Chairman will be anything but biased against those who seek to implicate his host or that he will reach any decision or conclusion un-favourable to his host while enjoying his hospitality. b. Aside from this, the evidence in this case also shows that the Claimant was invited for interrogation and testimony before the Ad Hoc Disciplinary Committee along with other staff of the Defendant as mere witnesses to say what they know, one after another privately, concerning the alleged scandal generally and the Claimant was never accused of the allegation in respect of which he was found liable by the Defendant. The Claimant in this case was never specifically accused of contravention of “Regulation 41.8/18 of the 1998 conditions of service” in respect of which the Defendant purported to find him liable in Exhibit CC16. Counsel submitted that this is wrongful and amounts to a breach of the sacred principles of fair hearing. See again ADENIYI vs. GOV. COUNCIL, YABATECH (1993) 6 NWLR (Pt. 300) 426 at 467 paragraph C where the Supreme Court per Olatawura JSC clarified the law and held thus: “A man appeared before a tribunal without any specific accusation of a misconduct and who was called as a witness cannot be said to have been given a fair hearing when at the end of the tribunal and subsequent findings he was found liable for a misconduct of which he was not specifically accused.” c. Furthermore, the evidence in this case also shows that the Ad Hoc Disciplinary Committee invited witnesses on after the in the absence of the Claimant and questioned them and recorded their answers to those questions. The Claimant was never invited to be present when the witnesses testified against him nor was he afforded any opportunity to correct or contradict the prejudicial testimony against him. Thus, the Claimant was never afforded any opportunity to know that the adverse testimony against him was by whom such testimony was given and to confront such witnesses including Mr. Adekunle and Auditor who were said to have written incriminating reports against the Claimant. It is also clear from the Report of the Ad Hoc Disciplinary Committee itself (Exhibit CC15), that most of the witnesses testified in the absence of the Clamant and that key witnesses like Mr. Bulus Ahmadu and Davidson Adeniyi (of the Computer Associates) were taken and heard in Abuja and Lagos respectively in the absence of the Claimant. Please see page 32 (last paragraph), page 33 and 36-40 of Exhibit CC15. We submit that this is wrongful and amounts to a total failure of fair hearing. See NZE vs. NPA (1997) 11 NWLR (Pt. 528) 210 at 221 paragraph C- D where the Court of Appeal per Rowland JCA stated the position of the law when he held that: “It is a cardinal principle of the rule of natural justice, that is, audi alteram partem that evidence should not be given behind the back of an accused person and he should be given full opportunity to listen to what is being said against him and react to it. See Dr. Denloye vs. Medical and Dental Practitioners Disciplinary Committee (1968)1 All NLR 306; Graba vs. University of Maiduguri supra. From the foregoing, I have no doubt in my mind that the respondent breached the rule of natural justice and the provisions of section 33 (1) of the Constitution of the Federal Republic of Nigeria investigation of the alleged wrong doing the appellant was accused of by the respondent.” d. The evidence in this case also shows that the witnesses that testified before the Ad Hoc Disciplinary Committee were not allowed to give their testimony freely but were rather restricted to questions designed to elicit pre-determined answers by the Committee for the purpose of implicating and victimizing the Claimant. The Committee unilaterally questioned the witnesses including the Claimant. In a cross-examination style directed at eliciting answers to support its preconceived conclusions against the Claimant. This approach was condemned as erroneous in OLAOYE vs. CHAIRMAN MEDICAL AND DENTAL PRACTITIONERS INVESGTIGATING PANEL (1997) 5 NWLR (Pt. 506) 550 at 567 paragraph E-F where the Court of Appeal per Ayoola JCA (as he then was) held thus: “By the nature of the questioning the appellant was subjected to by the Tribunal, it would be apparent to an objective by-stander that the members had a preconception and were by what appeared to be cross-examination trying to prove that that preconception trying to prove that that preconception was the truth. An objective enquirer for truth approaches the search with an open mind and not with an appearance of a preconception. Where a Tribunal charged with a duty of fairness approaches its task with an attitude which smirks of preconception it cannot be said that the person whose conduct was being inquired into has had a fair hearing. ...The unilateral questioning of witnesses and the appellant without offering the appellant’s counsel opportunity to cross-examine the witnesses or put questions to the appellant is inexcusable and adds to the unfairness of the proceedings. In the result, the entire proceedings are vitiated.” e. According to Counsel, to make matters even worse, the evidence before this Court also shows that the Claimant was also not afforded any opportunity to contradict the said witnesses or to cross-examine them. This is also a fundamental violation of the Claimants right to fair hearing. On this point, Counsel cited the case of UNION BANK LTD vs. OGBOH (1991) 1 NWLR (Pt. 167) 369 at 386 paragraph E-G where the Court of Appeal per Ogundare JCA (as he then was) held thus: “The Management, in order to give the plaintiff a fair hearing should have brought both the plaintiff as Manager and the Accountant face to face to state their evidence in chief and each side should have been allowed to cross examine the order. Where that done, the management would have decided whose fault the lapse was. The Supreme Court in Adedji vs. Police Commission (1967) 1 All NLR 67 at 71-72, had established the proposition, adopting the view in de Smith Review of Administrative Action p. 110 that: “A person who is entitled to the protection afforded by the audi alteram partem rule must not only be given adequate opportunity to answer it. But he is not entitled to an oral hearing unless such a hearing is expressly prescribed.” So, in case in have, the plaintiff’s letter on the query should have been passed to Accountant for his comments, and the Accountant’s explanation passed on to the plaintiff. And it was up to the management to decide the case on documents or to proceed with the committee to hear both the manager and the accountant giving each person an opportunity to cross-examine the other before taking their decision. Section 33 of the 1979 Constitution on fair hearing was therefore violated.”] To Counsel, it is instructive to note that these failing which constitute breaches of the rules of natural justice on the part of the Defendant were also done in contravention of the specific provisions of Exhibit CC2, the Defendants conditions of service handbook dated July 1998 and otherwise called “the blue book”. See paragraphs 42.4.7 at 42.4.9 on page 23 of 3 Exhibit CC 2 which spells out DISCIPLINARY PROCEDURES of the Defendant and provides thus: “42.4.7: If any witness or witnesses are called to give evidence, the employee must be offered an opportunity to put questions to such witness of witnesses. 4.2.4.8: Where it is deemed necessary, before any documentary evidence is used against an employee he must be supplied with a copy thereof or given access thereto. 42.4.9: In its investigation, the Ad Hoc Disciplinary Committee must carefully consider the query, reply to the query, all representations before the Committee, all relevant documents submitted to it, the relevant provisions of the Authority’s Conditions of service, and the provisions of the relevant Corporate Headquarters’ circulars before making its recommendation.” It was the submission of Counsel that in the face of these myriad of contraventions and violations of the principles of natural justice and the terms of the conditions of service, that the decision of the Ad Hoc Disciplinary Committee of the Defendant is vitiated and liable to be set aside by this Court. The law is well settled that breaches of the rules of natural justice is fatal to any decisions reached subsequently in the matter, and it should not even matter whether or not the decision eventually reached by the Committee or Tribunal in flagrant abuse of fair hearing was right or wrong in law. The mere fact that it was reached in breached of the sacred principles of natural justice is enough to vitiate it and everything predicated on it. In aid of this point, Counsel cited the case of ANPP vs. INEC (2004) 7 NWLR (Pt. 871) 16 at 47-48 where the Court of Appeal emphasized that: “The consequence of a breach of the rules of natural justice of fair hearing is that the proceedings in the case are null and void. If a principle of natural justice is violated, it does not matter whether if the proper thing had been done, the decision would have been the same, the proceeding will still be null and void. In other words, if the principles of natural justice are violated in respect of any decision, it is immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision.” Counsel referred further to the case of ADEBAYO vs. OKONKWO (2002) 2 NWLR (Pt. 768) 1 and USANI vs. DUKE (2004) 7 NWLR (Pt. 871) 116 at 150. In addition, Counsel pointed out that although the Ad Hoc Disciplinary Committee did not purport to terminate the appointment of the Claimant or issue the offending termination letter Exhibit CC16 in this case, but it was the Committee that recommended the termination of his appointment. He referred to Page 47 of Exhibit CC15. Since the Defendant purported to accept the recommendation and to act on same, the Defendant was also duty bound to observe the principles of natural justice in the implementation of the said recommendations, which it failed to do. This failure also vitiates the purported termination letter Exhibit CC16. On this point, Counsel cited the case of ADENIYI vs. GOV. COUNCIL, YABATECH (1993) 6 NWLR (Pt. 300) 426 at 454 – 455 paragraphs F – E where the Supreme Court per Karibi-Whyte JSC stated the law and held thus: “In the observance of the principle of natural justice and the essential requirement of fair hearing, there is a distinction between the recommendation of an Investigation Panel which has no statutory powers, and the acting on the recommendation by statutory body with requisite statutory powers. Whereas the recommendation will not affect the civil rights and obligation of the appellant, the acting upon such recommendation does. Hence the implementation of the recommendation must comply with the rules of natural justice. Olatunbosun v. NISER (1988) 3 NWLR is a situation. Here the new Council of NISER relied on the Investigation and conclusion of the outgoing Council that Olatunbosun should be redeployed. They never recommended dismissal or termination. Without hearing him on the allegations, the new Council relied on the findings of the former Council to terminate his appointment. This Court held that his right to fair hearing was violated and the termination invalid.” There is no doubt that the appellant who was not heard by the respondent Council before implementing the recommendation of its Investigating Panel, violated his right to be heard. Accordingly the decision retiring him from the service is ultra vires and accordingly void.” Counsel urged the Court to vindicate the rights of the Claimant which has been grossly violated by the Defendant and enter judgment as per the reliefs claimed in this case, particularly relief 2, 3, 4 and 5 on the Amended Complaint. It was Counsel’s further submission that the evidence in this case shows that the Ad Hoc Disciplinary Committee of the Defendant proceeded to make perverse findings and conclusions not borne out by the evidence before it, particularly as follows: i) At page 47 paragraph 1 in Exhibit CC15, the Committee concluded that the Claimant “had escaped previous Ad Hoc Disciplinary Committees set up to unravel the now common fraudulent practices in Port Harcourt” when there was no testimony before the Committee to that effect. No witness said so and the Committee reached this conclusion even before considering the actual evidence before it. In other words, the Committee was already convinced of the guilt of the Claimant before it embarked on the investigation and was accordingly determined to reach its predetermined conclusion as to the guilt of the Claimant, irrespective of the evidence before it. ii) There was no handover note or indeed any evidence whatsoever before the Ad Hoc Disciplinary Committee that the Root Password was ever handed over to the Claimant on the dates the fictitious postings were carried out on the Defendants’ systems but the Committee concluded that the Claimant “was in the sole custody of the super user password when it was used in the N620, 000.00 fictitious cash posting” at page 47 paragraph 2 of Exhibit CC15. iii) No witness testified before the Committee that the Claimant reported for his afternoon shift duty on 21st November 2002 earlier than the 2pm officially designated or that he performed the alleged fictitious postings but the Committee still concluded as follows: “he may have come into the centre earlier to carry out the fictitious postings so as to introduce doubts” please see page 47 paragraph 3 of Exhibit CC15. We submit that this finding and conclusion is speculative, predicated on mere conjecture, and is perverse. Counsel to the Claimant cited the case of UNION BANK PLC vs. ERIGBUEM (2003) FWLR (Pt. 180) 13 56 at 1405 paragraph C – D where it was held that: “A perverse decision is one which ignores the fact or evidence and amounts to a miscarriage of justice when considered as a whole. It is a judgment that is persistent in error, deferent from what is reasonable or required against the weight of evidence.” See also: YUSUF vs. MOBOLASI (1999) 12 NWLR (Pt. 631) 374 at 387. In urging the Court to set aside the findings of the Ad Hoc Disciplinary Committee for being perverse and unsupported by the actual facts and evidence before it, Counsel submitted that the foregoing findings and conclusion are perverse and not borne out by the testimony of the witnesses before the Committee. Counsel urged the court further, to set aside the purported termination letter of the Defendant dated 5th day of December 2003 with ref: 0227/2.04/310/2003 for being wrongful and ultra vires the Defendant, in that it was based on the unlawful and void recommendations of the Ad Hoc Disciplinary Committee of the Defendant. The law is well settled that one cannot put something on nothing and expect it to stand. In so far as the findings and conclusions of the Committee were unlawful and void, every other act predicated on it, including the purported termination letter, becomes baseless, untenable and without support in law. See MACFOY vs. UNITED AFRICA COMPANY LIMITED (1962) A.C. 152 at 160 As regards reliefs 1, 6 and 7 sought by the Claimant, Counsel drew the Court’s attention to the undisputed pleadings and evidence before the Court, which shows that the Claimant was employed by the Defendant and that the terms and conditions governing the Claimants appointment are as contained in the letter of appointment (Exhibit CC1), the National Electric Power Authority conditions of service dated July 1998 and otherwise called “the blue book” (Exhibit CC2), the corporations enabling Acts and other policy circulars. In Exhibit CC1 captioned “OFFER OF JUNIOR APPOINTMENT (TECHNICAL)” it was stated in paragraph 3 that: “The appointment is pensionable, but you will be on probation for two years, after which subject to satisfactory performance, your appointment will be confirmed. During the probationary period, your appointment can be terminated by either side, by one month’s notice in writing or payment of one month’s salary in lieu. Other conditions will be those stipulated for employees of your grade in the Authority’s Conditions of Service date 1978 and any amendments and policy which may be made from time to time.” Exhibit CC3 is the letter of confirmation which shows that the Claimant’s appointment was confirmed with effect from the 8th day of May 1987. Counsel submitted that the employment of the Claimant being a pensionable appointment with a statutory corporation, entitles the Claimant to remain in the service of the Defendant until he attains the retirement age of 60 years or until the appointment is duly and properly determined in accordance with the governing terms and conditions. The Court’s attention was drawn to Pages 56 and 57 of Exhibit CC2, under the caption “Retirement and Pensions” where it was specifically stipulated that: “Compulsory retirement for every employee shall occur as soon as the employee attains the age of sixty (60) years.....” Counsel pointed out further that it was not a term of the employment contract between the parties that either party can be at liberty to breach the terms thereof or bring it to an end outside the termination procedures provided for there-under. The Claimant having not been retired by the Defendant and his appointment having not been determined in accordance the governing terms and conditions is therefore entitled to reject the purported termination of his employment and seek the declarations of right sought in reliefs 1, 6 and 7 in the Amended Complaint. To the Claimant, having amply demonstrated that the Claimant’s contract of service was not lawfully determined, and is therefore still subsisting, the Claimant is entitled to judgment declaring that he remains an employee of the Defendant. In aid of this point, Counsel cited the case of CHUKWUMAH vs. SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIA LIMITED (1993) 4 NWLR (Pt. 289) 512 at 559 – 560 paragraph F-C where the Supreme Court per Karibi-Whyte JSC clarified the position of the law and held thus: “In this appeal, appellant can only be entitled to the declaratory relief claimed if he is able to establish on the evidence before the court that his contract of service was not lawfully determined, and is therefore still subsisting. That was the situation in Ewerami v. African Continental Bank Limited (1978) 4 SC 99. In that case, Ewerami claimed for a declaration that by reason of his wrongful dismissal by the bank he was still in their employment. The facts found by the trial Court which were not challenged was that Plaintiff was employed by the defendant bank on 21st March, 1964. At the commencement of action in 1974, he was a member of the permanent staff of the defendant bank in the post of Archivist.” Before the learned trial Judge, the issue was whether the plaintiff was lawfully dismissed by his employers for insubordination, or whether a case for dismissal had not made out in the absence of proof that he had received the letter of 3rd August, 1973 transferring him to Jos? At the trial, the defendant did not offer any evidence. Relying on the case made by the plaintiff, the trial Judge held that the purported dismissal of plaintiff from the employment of the defendant company was null and void. He accordingly declared that plaintiff was still in the employment of the defendant company. Defendant company appealed. On appeal, this Court held that there was no material before the court from which it could hold that the plaintiff had been insubordinate by failing to proceed on transfer to Jos pursuant to a letter of August 3, 1973 from the defendant directing that he should do so. Their Lordships held that the onus of establishing the existence of this letter was on the appellant and that they failed to do so. It was held that the learned trial Judge was right. Hill v. Parson & Co. Ltd (1971) 3 All E.R 1345, is a case where a purported notice to terminate the contract of service was held to be a wrongful repudiation of the contract of service and a nullity. The English Court of Appeal held that where a master had unlawfully repudiated a contract of service by giving a notice o f dismissal which was too short to comply with the terms of the contract, the notice was not effective to terminate the contract unless the servant accepted it. See also Olaniyan & Ors Vs University of Lagos (1985) 2 NWLR (Pt.9) 599. It is a well-established principle of the common law, and of Nigerian law, that ordinarily a master is entitled to dismiss his servant from his employment for good or for bad reasons or for no reason at all. The common law recognisez and respect the sanctity of contracts. The maxim pacta sunt servanda is a sacred doctrine for the preservation of contracts which is entitled to the greatest respect. Hence where parties have reduced the terms and conditions of service into an agreement, the conditions must be observed. Ordinarily and consistent with the common law principle, the court will not impose an employee on an employer. See Webb v. England (1860) 29 Bear.44, Lumley v. Wagner (1852) Ibe G & M & G. 604. Hence an order for specific performance of contract of employment is an aberration which will rarely be made. See Francis v. Municipal Council of Kuala Lampur (1962) 3 All ER, 633. In the ordinary case and following the common law principle, termination of a contract of service even if unlawful brings to an end the relationship of master and servant, employer and employee. This rule is based on the principle of confidentiality relationship between master and servant which cannot continue in the absence of mutuality. Nevertheless the distinction has been mad between the ordinary domestic cases of master and s servant and the other more diffused and impersonal relationship of employer and employee where confidential relationship does not fully exist or assumes little prominence. There may also be special circumstances where the nature of the employment, or the consequences and circumstances of unilateral termination, the court may exercise its discretion to grant a declaration that the relationship of employer and employee still subsisted and the employer could be stopped by injunction from treating the contract as at an end. See Hill v. C.A Parsons (1971) 3 All ER 1345. See Lumley v. Wagner (1852) 1 De G.M&G. 604. In the instant case, plaintiff can only be entitled to the declaration sought if he can show that the defendants’ contract of service subsists notwithstanding Exhibit N14. It must be shown that plaintiff has a legal right which should be protected by the declaration” According to Counsel, the facts and circumstances of the judgment quoted above are in pari material with the facts and circumstances of this case. The Claimant has amply demonstrated that he is an employee of the Defendant on pensionable cadre and that his employment has not been lawfully terminated in the circumstances of this case. He has accordingly rejected the purported termination which constitutes a breach of the contract and sought declaratory and injunctive orders of this Honourable Court. The Defendant has failed to dispute the claim. It is Counsel’s submission that in line with the above decision of the apex court, the Claimant is entitled to the declarations sought, especially as there are ample documentary and oral evidence from the Claimant in proof of the claim. There can be no dispute that the Claimant is deemed to remain an employee of the Defendant in the eyes of the law until the appointment is properly determined as required by the governing terms of the contract. In AMAECHI vs. INEC (No. 2) (2007) 18 NWLR (Pt. 1065) 98 at 106, the Supreme Court made it clear and held per the lead judgment of Katsina Alu JSC (as he then was) that a person whose name is wrongly removed remains the proper candidate when a determination is finally made that the purported removal was wrongful. “It is my view that the candidate for PDP at the election was the appellant. His name was unlawfully removed. In the eyes of the law, he remained the candidate and this court must treat him as such. ” Counsel went further to distinguish between acts done de facto and those done de jure, citing their definitions in the 8th edition of The Black’s Law Dictionary, 8th Edition by Bryan A. Garner (at pages 448 and 458 respectively) which clarified the meaning and distinction between these two Latin words, a distinction which is also recognized in Nigerian Law, that a person may be in de jure possession of a piece of property even though another person is in actual de facto or physical possession of the same property and at the same time. See the cases of i. ANYABUNSI vs. UGWUNZE (1995) 6 NWLR (Pt. 401) 255 at 268 paragraph F – E per Iguh JSC ii. AYOOLA vs. YAHAYA (2005) 7 NWLR (Pt. 923) 122 at 143 paragraph D – G per Onnoghem JCA (as he then was) iii. DABO vs. Abdullahi (2005) 7 NWLR (Pt. 923) 181 at 212 paragraph B – C Applying the above principle to the facts and circumstances of the case at hand, Counsel to the Claimant submitted that with the setting aside of the purported Ad Hoc Disciplinary Committee report, findings and conclusions as well as the purported termination letter of the Defendant which were all made in contravention of the sacred principles of natural justice, the inescapable conclusion is that the Claimant legally remains an employee of the Defendant in the eyes of the law. Being an employee, the Claimant is entitled to continue to receive his salaries and remain in lawful occupation of the official quarters until the employment is lawfully determined. He therefore urged the Court to grant reliefs 1, 6 and 7 as sought on the Amended Complaint as they are borne out by the pleadings and evidence before the Court. The Defendant had stopped paying the salaries of the Claimant since 2003 on the erroneous assumption that his employment had been terminated. Counsel urged the Court to hold that the Claimant’s employment has not been properly determined. Therefore he is entitled to have all his Salaries, allowances and other entitlements from December 2003 till date. In aid of this point, counsel cited the case of U.N.T.H.M.B.V. NNOLI (1994) 8 NWLR (Pt. 363) 376 at 407 paragraph A to G where the Supreme Court per Onu JSC held thus: “The distinguishing feature of the instant case as clearly and correctly stated by the court below is that ‘It is now very well established that when an office or employment has a statutory flavour in the sense that its conditions of service are provided for by statue or regulations made there under, any person in that office or employment enjoys a special status over and above the ordinary master and servant relationship. In the matter of discipline of such an employee, the procedure laid down by such statute must be fully complied with. If not, any decision affecting the right or reputation or tenure of office of that employee will be declared null and void. See Shitta-Bey v. Federal Public Service Commission (1981) 1 SC, 40 at 56-57; Olaniyan v. UNILAG (1985) 2 NWLR (Pt. 9) 599 at 612-613; 622-623: Eperokun v. University of Lagos (1986) 4 NWLR (Pt. 34) 162 at 201: Olatunbosun v. NISER (188) 3 NWLR (Pt. 80) 25 at 41. Since the respondent was 45 years old when she was prematurely retired from her office or employment and that act of termination from the service of the appellants was rightly, in my view, declared null and void, the effect is that the respondent is entitled to return to her duty post. The court below (per Uwaifo, JCA.) in affirming the decision of the trial court in this regard in his lead judgment put the matter admirably beyond peradventure, thus: ‘A look at the relicts sought by the plaintiff reveals that they are for declarations that her retirement was invalid: that she was entitled to continue in her employment: and also for orders setting aside the letter of retirement and restoring her rights and benefits in the course of continuing in her employment. Once the retirement was declared null and void that is to say, that the decision retiring her from the services of the UNTH was declared to be no decision, I do not see how and why the other reliefs could be denied her. It is as if she was never retired from the services. The plaintiff’s contract of employment was in the circumstances of this case unilaterally repudiated by the defendants. She refused to accept the repudiation in the prompt manner she wrote to the defendants to that effect. There is nothing legally standing in her way to have her job or office back with all the attendant rights, privileges and benefits. In other words, she is entitled to be restored to her status quo ante’ I cannot agree more.” Counsel to the Claimant urged the Court to follow the above decision which constitutes a binding judicial precedent and enter judgment in favour of the Claimant. He emphasized that the Claimant has not approached the Court for damages for breach of contract of employment but has rather approached this Court to construe and interpret the terms of his employment with the Defendant and to determine whether or not his employment has been properly determined. A determination in his favour entitles him to the reliefs sought in this case, which does not derogate from the rights of the Defendant to take fresh and proper steps to bring the employment to an end as required by the governing terms and conditions. Counsel stated that the Claimant is a supplicant for justice who seeks to clear his name of the allegations of crime and the smudge and negative imputations resulting from the finding of liability for fictitious posting to the tune of N620, 000.00 while he was in the employ of the Defendant. The Claimant, Counsel submitted, is entitled to his good name which in reality is a currency of inestimable worth relying on the decision in the case of UBN LIMITED vs. OREDEIN (1992) 6 NWLR (Pt. 247) 355 at 371 where the Court of Appeal per Tobi JCA (as he then was) succinctly observed that: “An intangible but priceless asset and possession of any human being is the respect, reputation and esteem he has from others. In the sociological set up of any society, any human being is entitled to respect of his person and this is reciprocal. He is entitled to protect himself from being abused, insulted and disparaged with a view to lowering his reputation before right thinking members of society, either orally of in writing. He is entitled to his good name. Therefore, if any person makes a publication which is injurious to that good name, the victim of that publication is entitled to seek redress... in a court of law.” See also ACCESS BANK Plc vs. M.F.C.C.S (2005) 3 NWLR (Pt. 913) 460 at 474 – 475 where the Court of Appeal per Aderemi JCA stated the position thus: “In modern days when good reputation is a scarce commodity among mankind, possession of same by anybody is an invaluable asset, which must be jealously guarded in the comity of good and virtuous people... The tendency for a man to do evil is more prevalent nowadays unlike in the good old days...” Counsel therefore called upon this Honourable Court to vindicate the rights of the Claimant which has been trampled upon by the Defendant. The Claimant has suffered injury and based on the principles and doctrines of Ubi jus ibi remedium (where there is a wrong there is a remedy), this Honourable Court, being an equal dispenser of justice, is duty bound to provide a remedy even by resort to the doctrines of necessity in favour of the Claimant. We pray in aid AMAECHI vs. INEC (2008) 5 NWLR (Pt. 1080) 227 at 334 paragraphs D – G where the Supreme Court per Katsina Alu JSC (as he then was) stated the position of the law and held thus: “On the principle of Ubi jus ibi remedium if the court is satisfied that a person has suffered a legal injury, it will surely provide a remedy irrespective of the fact that no remedy is provided either at common law or by statue. In Oyekanmi v. NEPA (2000) 15 NWLR (Pt. 690)414 this Court per Onu JSC said p. 444: “On the principle of Ubi ju Ibi Remedium; in Bello and 13 Others v. A.G. Oyo State (1986) 5 NWLR (Pt. 45) 828 at 890 this court per Oputa, JSC held that if from the facts available before the court it is satisfied: (i) that the defendant is under a duty to the plaintiff; (ii) that there was a breach of that duty; (iii) that the defendant suffered legal injury; (iv) that the injury was not too remote, it will surely provide a remedy i.e. create one irrespective of the fact that no remedy is provided either at common law or by statute.” In this case, it is an incontestable fact that the 3rd respondent did not comply with section 34 (2) of the Electoral Act, 2006. The law is an equal dispenser of justice and leaves no one without a remedy for his right.” Concluding, Counsel to the Claimant urged the Court to resolve the sole issue for determination in the affirmative and grant all the reliefs sought by the Claimant as prayed. He urged the court to do justice and enter judgment in favour of the Claimant as per the reliefs sought in the Amended Complaint. I have carefully considered the totality of evidence, pleadings, submissions and arguments before the court. Before I go into determining this case, I need to mention that the defendant did not defend the claimant’s claims against it. As I have stated earlier, when this matter was called for hearing, counsel to the defendant abruptly stopped appearing in court and the matter proceeded to hearing on the case of the claimant only. The defendant, although filed processes at the Federal High Court, neither called any witness in this case nor called any evidence in its defence. CW1, the claimant himself, was also not cross examined by the defendant. The only evidence adduced before this court is that of the claimant. Therefore, the claims of the claimant will to be determined on the strength of the case presented by him. The cause of action of the claimant arose from the termination of his employment by the defendant through the letter dated 5th December 2003 admitted in evidence as Exhibit CC16. It is the claimant’s case that he was an employee of the defendant until his termination by the said letter. The claimant’s evidence showed he was employed in 1985 and his employment was confirmed by the defendant in 1987. He got some promotions and until the letter of termination, he held the position of Assistant Manager (computer) with defendant. His employment letter, confirmation letter and letter of promotion were admitted as Exhibits CC1, CC3 and CC4. From these facts, there is no argument that the claimant was indeed an employee of the defendant. The claimant’s complaint therefore is in respect of the termination of his employment. A look at the reliefs sought by the claimant in his Amended Complaint reveal quite clearly that his claim is not founded on wrongfulness of the termination but that the termination of his employment is null and void and for an order setting aside of the letter terminating his employment. The cumulative implication of reliefs 1, 4, 5, and 6 sought by the claimant is that there was no termination of his employment and to treat the employment as subsisting until he attains the retirement age of 65 years or until duly terminated. In view of the reliefs sought by the claimant, the issue to be determined in this case is whether he is entitled to the reliefs. In considering the issue, I must first of all determine what category of employment relationship is between the claimant and the defendant. This is because whether the claimant’s reliefs are grantable depends on the type of employment- whether it is an employment governed by statute or ordinary master and servant relationship. With regard to the claims of the claimant in this case viz-a-viz the nature of the employment, determining the nature of the employment first has been given impetus by the Supreme Court in the following comment in the case of ESIEVWORE vs. NEPA (2002) FWLR (Pt. 124) 398 at 408- “Employment with statutory backing must be terminated in the way and manner prescribed by the relevant statute and any manner of termination inconsistent therewith is null and void and of no effect. But in other cases governed by only agreement of parties and not by statute, removal by way of termination of appointment or dismissal will be in the form agreed. Any other form connotes only wrongful termination or dismissal but not to declare such dismissal null and void. the only remedy is a claim for damages for wrongful dismissal… for this wrongful act, he is only liable in damages and nothing more.” It is thus clear from the above quoted opinion of the apex court why the employment type must be identified as it will assist the court in determining the claims of the claimant in this case. In my view, the implication of reliefs 1, 4, 5, and 6 sought by the claimant is of the nature prescribed in ESIEVWORE vs. NEPA (SUPRA) as grantable when the contract of employment is statutorily flavoured. The question at this point is whether the claimant’s employment is governed by statute as to enable him claim or be entitled to such reliefs. In paragraphs 5.6 of his written address, it seems to me counsel to the claimant attempted in his submissions to attach statutory flavouring to the appointment of the claimant when he submitted that the claimant is in a pensionable employment in a statutory corporation and he is entitled to remain in the employment until retirement age. Although the submission of counsel did not pointedly describe the claimant’s employment as having statutory flavour, most of the cases he cited in support of his arguments are cases decided in situations of employment governed by statute. The claimant has proved that he was employed by the National Electric Power Authority (subsequently referred as “NEPA” in this judgment) in 1985 vide Exhibit CC1 and his employment was confirmed in 1987 vide Exhibit CC3. It is also in his evidence that the name NEPA was later changed to Power Holding Company of Nigeria (the defendant). At the time of the termination of his employment, he held the position of Assistant Manager (computer) with the Defendant. In paragraph 5 of his witness statement on oath, the claimant testified that the terms governing his employment are those contained in his letter of employment, the NEPA condition of service dated July 1998, NEPA Act, and other policy circulars. He testified further that by the provisions of these documents, his employment is pensionable and it is within the public service of the Federation. The NEPA condition of service of July 1998 was admitted in evidence as exhibit CC2. From this evidence, it is undeniable that the claimant seeks to base his employment as statutorily protected. NEPA was established in Section 1 of National Electric Power Authority Act 2004. Section 2 of the Act provides for the constitution of a Board of Directors to conduct the affairs of NEPA. This Board is empowered in section 4 of the Act to appoint servants and officers of NEPA. In Paragraph 9 of Part III of the schedule of the Act, the Board, with the approval of the Minister of Power, is to make regulation for the appointment, promotion, and discipline of officers and servants of NEPA. It was pursuant to this provision that the Board made the NEPA condition of service, i.e Exhibit CC2. The NEPA Act has since been repealed by Section 99 of the Electric Power Sector Reform Act 2005. By a directive in sections 1 and 2 of the Act, the PHCN was incorporated as a company limited by shares. It is the initial holding company to take over the assets and liabilities of NEPA, including its employees. Section 5 of the Act provides thus- 5. – (1) With effect from the initial transfer date, every person employed by the Authority immediately before that date shall be transferred to the service of either the commission or the initial holding company on terms not less favourable than those enjoyed by him immediately prior to the transfer (2) ----------------------- (3) Until such time as conditions of service are drawn up by the initial holding company or the commission as the case may be: (a) the terms and conditions of service applicable to employees of the Authority of the shall continue to apply to every person transferred to the initial holding company as if every such person were still in the service of the Authority. (b) ------------------------------------- The purport of this provision of EPSR Act, particularly subsection 3 (a) thereof, is that the status, terms and condition of service of employees under NEPA continues to apply to employees of PHCN. The instant defendant is not a creation of statute. It is only a body incorporated to inherit NEPA. Therefore, considering it from claimant’s initial employment under NEPA, can it be said that his employment is governed by statute? The fact that an employer is a statutory body or government agency does not mean that the conditions of service of its employees necessarily became a contract with statutory flavour. See C.B.N vs. ARCHIBONG (2001) FWLR (Pt. 58) 1032 at 1049; IKHALE vs. FAAN (2003) FWLR (Pt. 181) 1726 at 1741. An employment is said to enjoy statutory flavour when the manner of the employment and the termination is specifically provided for in the statute creating the employment. See N.I.I.A vs. ANYAFALU (2006) All FWLR (Pt. 325) 141 at 162; CBN vs. JIDDA (2001) FWLR (Pt. 47) 1065 at 1082. From the background analysis I have made here of the claimant’s employer, it is my view that the claimant’s appointment was not made by the NEPA Act nor is the terms of his employment or Exhibit CC2 contained in the NEPA Act. The NEPA Act did not make any express provision for employment, discipline or termination of services of its staff. It merely authorized the Board to make such regulation to govern the appointment, promotion, and discipline of officers and servants. It is pursuant to that provision that Exhibit CC2 was made by the Board. Such condition of service made by the Board cannot be said to enjoy statutory favour. This was the view of the Supreme Court in OBU vs. NNPC (2003) 9 WRN 76 at 106-107. See also the decision of the Court of Appeal in WAEC vs. OBISESAN (2009) All FWLR (Pt. 484) 1619 where it was held at Pg. 1631 that- “Any condition of service drawn up by a board or council cannot be said to have statutory flavour”. From the foregoing, the terms and condition of the claimant’s employment are not contained in the NEPA Act but are governed by the condition of service, Exhibit CC2. A look at the claimant’s employment letter, Exhibit CC1, does not disclose any link of the claimant’s employment to any statute. It merely contained that the conditions of service of claimant’s employment are those contained in the defendant’s condition of service, which is Exhibit CC2. In view of the authorities I have cited above on this point, I find that both Exhibit CC2 and the employment of the claimant do not enjoy statutory flavour. I am further fortified in my opinion by decided cases in which the condition of service of NEPA was in issue. See ESIEVWORE vs. NEPA (SUPRA); GEIDAM vs. NEPA (2001) 2 NWLR (Pt. 696) 45; NEPA vs. ENYONG (2003) FWLR (Pt.175) 452. In these cases, it was determined that employment under NEPA does not enjoy statutory flavour. In the circumstance of my finding, I do not have any reservations than to conclude that the claimant’s employment is not protected by statute but a relationship of master and servant. Having resolved and determined that the type of contract of service between the claimant and the defendant is one of master and servant, I shall now turn to examine the issue to be determined in this case, which is, whether the claimant is entitled to the reliefs sought in this case. In reliefs 2 and 3 of the Amended Complaint, the claimant sought a declaration that the report and the recommendation of the Ad Hoc Disciplinary Committee (which I subsequently simply call “Committee” in this judgment) of the defendant are unlawful, null and void and an order setting aside the report and the recommendation of the Committee. In the events leading to the termination of his employment, the claimant testified that as a result of a fraud case that happened at the computer station, the defendant set up an Ad Hoc Disciplinary Committee to investigate a fraud. The claimant testified that the Committee invited witnesses to testify before it but it failed to observe the rule of natural justice and the provisions of the condition of service. Instances of these observed defaults were enumerated by the claimant including denial of right to be present while the witnesses testified against him and to cross examine the witnesses. Paragraph 42.4.5 of exhibit CC2 provide for the setting up of an Ad Hoc Disciplinary Committee by the defendant. The procedure to be followed by the Committee in its investigation is spelt out in paragraph 42.4.7 to 42.4.10 of exhibit CC2. The exhibit, which regulates the contract of service between the parties, the terms and conditions therein bind the parties thereto and must be complied with in the employment relationship. See NEPA vs. ENYONG (SUPRA) at 468. Particularly, paragraph 42.4.7 of exhibit CC2 provided that the employee under investigation must be given opportunity to put questions to any witness called to give evidence before the committee. In page 5 of the Committee report, that is Exhibit CC15, it is disclosed therein that the persons investigated for the alleged incidence were Mr. Ernest Okonye, Mr. Mohammed Maina, Mr. G. Umehaa and Mr. M.A, Awalu. That is to say, the claimant was a suspect in the incidence. I have read the report in Exhibit CC15 and I observe that a total of 12 persons were interviewed by the committee. Of particular note is the evidence of Mr. Awalu, Mr. Yusuf and Mr. Bulus Ahmadu pages 15-17 and 37-40 of Exhibit CC15. The evidence of these individuals materially indicted the claimant on the subject of the investigation. Save at page 14 of Exhibit CC15 where it is seen that the claimant and Mr. Okonye were made to confront each other (both under investigation), I cannot find anywhere in the report where the claimant was invited to cross examine any of the witnesses, especially Mr. Awalu, Mr. Yusuf and Mr. Bulus Ahmadu who made reference to the claimant in their evidence, who were interviewed by the committee. The claimant was not there when these witnesses gave evidence against him. The claimant has also contended that the recommendation of the committee was biased against him and was not supported by evidence before the committee. The claimant complained particularly about the conclusions reached by the committee in its recommendation relating to the claimant that the claimant- i. “had escaped previous Ad Hoc Disciplinary Committees set up to unravel the now common fraudulent practice in Port Harcourt”. ii. “was in sole custody of the super user password”. iii. “may have come into the center earlier to carry out the fictitious posting so as to introduce doubts”. A reading of the proceedings of the committee in Exhibit CC15 does not reveal to me any evidence or fact on the basis of which the committee reached these conclusions. I find these conclusions perverse and not supported by evidence presented before the committee. In view of the foregoing finding of fact, it is clear that the committee did not observe the procedure stipulated in Exhibit CC2. That non-observance is also a serious breach of the principle of fair hearing. By the condition of service, the committee is expected to give opportunity to the claimant to put questions to all the witnesses called to give evidence before the Committee. This failure of the committee breached the principles of natural justice and fair hearing as contained in section 33 (1) of the 1999 constitution as amended. The claimant is entitled to know what evidence has been given against him and what statements have been made affecting him and he must be given opportunity to cross examine those witnesses. The consequence of the failure by the committee to give fair hearing to the claimant resulted in the recommendation the committee came up with. I hold the opinion therefore that the procedure adopted by the committee was faulty for non-compliance with Exhibit CC2 and the principle of natural justice. The effect is that the report and the recommendation therein relating to the claimant are null and void and liable to be set aside. See PHCN vs. ALABI (2011) All FWLR (Pt. 557) 698 at 709. I hereby declare the report and recommendation of the Committee relating to the claimant null and void and it is consequently set aside. Now, the report of the committee and the recommendation therein having been set aside, does it in any way have any effect on the termination of the employment of the claimant as to enable the grant of reliefs 4 and 5 and by extension, reliefs 1 and 6? The plain implication of reliefs 1, 4, 5, and 6 is that the claimant’s employment be treated as subsisting. The effect, when granted, will be that his employment has never been terminated and that the employment continues to subsist until he retires. Of course, that was why in relief 6, the claimant claimed for salaries from the date of his letter of termination to date. This obvious position held by the claimant became clearer by the averment in paragraph 21 of the claimant’s Amended Statement of Facts. The claimant has contended that the defendant has refused to “allow the claimant continue with lawful execution of his duties and still withholds his lawful service entitlements.” In a contract of service, either party has a right to determine the contract. The defendant is conferred with the right in Paragraph 41.7.1 of Exhibit CC2 to terminate the claimant’s employment but expected to give the claimant 1 or 3 months’ salary in lieu of notice. The defendant has exercised that right by terminating the claimant’s employment vide Exhibit CC16 and it is seen therein that the claimant has been offered 3 months’ salary in lieu of notice. I must state that in master and servant relationship, as in this case, once any of the parties have exercised his right under the contract to terminate the employment, whatever perceived defect exist in the termination is irrelevant, the employment is nonetheless terminated and the court will not impose an employee on the unwilling employer. Thus, once an employment is terminated, whether wrongly or unlawfully, the relationship has been brought to an end. The principle was reiterated in IKHALE vs. FAAN (SUPRA) at 1742, where it was held that- “It is the law that in ordinary cases of master and servant, a repudiation of the contract of employment by wrongful dismissal of the servant by the master puts an end to the contract”. See also U.B.N LTD vs. OGBOH (1995) 2 NWLR (Pt. 380) 647. In this case therefore, notwithstanding any alleged breach or wrongfulness in the termination of the claimant’s employment, the employment cannot and should not be treated as subsisting. The reliefs 4 and 5 sought by the claimant are unusual remedies for an employee whose employment is not covered by statute. This was the opinion of the Supreme Court in ESIEVWORE vs. NEPA (SUPRA) at 408 when it held thus- “in other cases governed by only agreement of parties and not by statute, removal by way of termination of appointment or dismissal will be in the form agreed. Any other form connotes only wrongful termination or dismissal but not to declare such dismissal null and void. It was held further at the same page as follows- “The principle is that where there has been a purported termination of a contract of service, a declaration to the effect that the contract still subsists will rarely be made.” The claimants counsel has contended in paragraph 5.4 of his written address that since the termination of the claimant’s employment was based on a void recommendation of the committee, the letter terminating his employment too should be similarly affected. I beg to disagree with counsel on this point. In Paragraph 42.4.11 of Exhibit CC2, the defendant has the discretion to accept or refuse any recommendation of the committee or to award lesser punishment than that prescribed by the Committee. What this implies is that the decision to terminate employment or punish staff of the defendant is entirely that of the defendant. Therefore, even when the report and recommendation of the committee is set aside on the ground that the claimant was not given fair hearing by the committee, the exercise of the defendant’s sole right and discretion to terminate the claimant’s employment, pursuant to paragraph 41.7.1 of Exhibit CC2, is not affected. In C.B.N vs. ARCHIBONG (SUPRA), the Court of Appeal opined thus- “Where a contract of service gives a party a right of termination of the contract, as in the instant case, by either giving a particular length of notice or payment in lieu of notice and the latter course is chosen, an employee cannot be heard to say he was not accorded fair hearing. Indeed that issue does not arise. Rather, the only obligation on the employer upon choosing that latter course is that it must pay the employee the salary in lieu of notice at the time of the termination of the contract.” In my view therefore, notwithstanding that the termination of the claimant’s employment was on the recommendation of the Committee, once the defendant has complied with the condition attached to the exercise of its right to terminate the employment, that is payment of salary in lieu of notice, the termination of the claimant’s employment cannot be declared null and void or be set aside. Consequently, whether or not the reason or basis for the termination of the claimant’s employment is the recommendation of the committee is irrelevant. Placing reliance on the Supreme Court case of ESIEVWORE vs. NEPA (SUPRA) at 408, I hold the opinion that the defendant is entitled to terminate the claimant’s employment whether “for good or for bad or no reason at all”. To my mind, the defendant having based its reason for the termination of the claimant’s employment on the recommendation of the committee is merely “a bad reason” and that cannot be a basis for declaring the termination null and void. The principle was put more elaborately in NEPA vs. ENYONG (SUPRA) at 469, as follows- “A master can terminate the contract of employment with his servant at any time for any reason or for no reason at all, provided the terms of the contract of service between them are complied with. The motive which led an employer to lawfully terminate the servant’s employment is not normally a relevant fact and the court will not have business with such motive but will only give effect to the contract of service between the parties” Even though the termination of the claimant’s employment was recommended by the Committee which recommendation resulted from breach of procedure in the condition of service, there is no way this court can set aside the letter of termination or the termination itself. The reason or motive for terminating the claimant’s employment, which is the recommendation of the Committee, or the complaint of lack of fair hearing by the Committee are not relevant here. Since the purport of Exhibit CC16 is to terminate the claimant’s employment, in my opinion, his employment stands terminated. On the expectation that the termination of his employment will be set aside, the claimant sought reliefs 1 and 6. Relief 1 seeks a declaration that he is entitled to remain in the employment until he reaches the retirement age of 60 years or until his employment is properly terminated. Paragraph 131.2 and 132.7 of Exhibit CC2 provides that employees of the defendant shall compulsorily retire upon attaining the age of 60 years. This condition of the employment does not mean that the employee is bound to remain in the employment until he attains 60 years of age. The defendant’s condition of service has granted the right to the defendant to terminate the employment even before the claimant reaches 60 years of age. The claimant’s letter of employment, Exhibit CC1, stipulated that the employment is to be regulated by the conditions of service of the defendant, which is Exhibit CC2. Paragraph 41.7.1 of Exhibit CC2 provides that- “an employee’s appointment may be terminated if his services are no longer required by giving one or three months’ salary in lieu of notice.” Where the defendant has exercised this right to terminate before the end of the employment, what it is required to do is give 1 or 3 months’ salary in lieu of notice. The defendant has offered 3 months’ salary in lieu of notice to the claimant in Exhibit CC16. The claimant has not alleged that he did not receive the 3 months’ salary. Having held that the claimant’s employment has no statutory flavour, by the common law principle applicable to master and servant relationship, the defendant is free to dispense with the services of the claimant at any time and even for any reason or no reason at all. I find therefore that by the condition of service between the parties, the claimant’s employment can be terminated before his retirement age and his employment has thus been terminated by the defendant. The claimant’s counsel has argued quite persuasively in his written address in urging this court to set aside the termination and grant the reliefs sought by the claimant. I must state again that when it comes to contract of employment, different principles of law applies to employment governed by statute and that of ordinary master and servant. In purely master servant relationship, of the nature of this case, such relief cannot be granted. The principle is settled in master and servant relationship that specific performance of contract of service cannot be ordered. The remedy available to an employee whose employment has been irregularly terminated in a contract of employment not having statutory flavour is damages and not an order of re-instatement to his employment or an order having the character of treating the employment as subsisting, which is what the claimant seeks in this case. As for the order for the payment of his salary from the month of the termination of his employment till date, it is also settled principle that an employee who is wrongfully dismissed or terminated cannot claim for wages for services he never rendered. See NEPA vs. ENYONG (SUPRA) at 475. The Supreme Court in OBOT vs. CBN (1993) 1 NWLR (Pt. 310) 140 put it this way- “An employee dismissed in breach of his contract of employment cannot choose to treat the contract as subsisting and claim for salaries and entitlements he would have earned up to the end of the contractual period”. In cases where wrongfulness is alleged in the termination or dismissal in master and servant employment, as in this case, the claimant’s appropriate claim would have been to sue for damages for wrongful dismissal or termination and not to claim for salary for the period he has already been terminated. The claimant has misconceived the remedy he has against the defendant. His claim for salary since date of termination cannot be granted. In master and servant relationship, as in this case, the contract of service binds the parties. Termination of employment cannot be wrongful unless it is in breach of the contract of service. I have held in this judgment that the termination of the claimant’s employment is not wrongful and it remains intact, it is only the procedure followed by the committee that was faulty. Assuming, without so holding, that the default by the committee occasioned any injury to the claimant, what remedy is he entitled to against the defendant for the breach of the disciplinary procedure? I think none other than to set aside the offending report and recommendation which I have already done in this judgment. Counsel to the claimant has argued in paragraphs 6.4 to 6.5 of his final written address that the negative imputations resulting from the finding of liability by the committee is a dent to the claimant’s good name and he is entitled to be compensated for the injury. Counsel relied on the case of UBN LIMITED vs. OREDEIN (SUPRA) where it was held, among others, that “if any person makes a publication which is injurious to that good name, the victim of that publication is entitled to seek redress... in a court of law.” Counsel therefore urged this court to provide a remedy for the claimant. The submission of counsel on this point discloses that he imputes an element of defamation to have resulted from the committee’s report. I need to first remind counsel that the claimant’s reliefs did not include a claim for damages for defamation. Counsel’s submissions is therefore not in support of any specific claim before the court. On the other hand, a claim for defamation is an action in torts. The matters on which this court is permitted to exercise jurisdiction in Section 254C of the 1999 Constitution (as amended) does not extend to actions in torts. It depends however on the tort in question. For instance, workplace injuries may be tortious, and the NIC will have jurisdiction over claims in them. The instant case however, can hardly be said to fall within the category of torts triable by this court. This court will therefore be acting ultra vires the constitution if it dabbles into the issue as the claimant’s counsel has urged this court to do. See the case of Agbo vs. CBN [1996] 10 NWLR (Pt. 478) 370 CA, where it was held that a servant cannot rely on wrongful termination of appointment as cause of action to clear his name for his future, among other purposes; his recourse in an appropriate case may be in an action for defamation. It has been decided in a plethora of cases that a master can terminate the employment of his servant at any time but if the termination is done in a manner in contravention of the condition of service, the employer must pay damages for breach of contract. See NEPA vs. ENYONG (SUPRA) at 474; CBN vs. ARCHIBONG (SUPRA) at 1047; ARINZE vs. FIRST BANK (2000) 1 NWLR (Pt. 639) 78. The measure of damages usually awarded in contract of service cases is the salary for the period of notice which the employer would have given as notice to terminate the employment and any other entitlement outstanding to the credit of the employee. The claimant’s claim in this case is not for breach of contract of service nor does he claim for damages for wrongful termination of his employment. Nonetheless, I am permitted in section 19 of the National Industrial Court Act 2006 to make any necessary and appropriate order for deserving situation. Exhibit CC16 shows that the claimant is to be paid 3 months’ salary in lieu of notice, including other entitlements. If I had found from the evidence before me that the 3 months’ salary in lieu of notice and other entitlements have not been paid to the claimant, I would not hesitate to order the payment to the claimant. However, the claimant did not in his pleading or evidence disclose whether the said 3 months’ salary and other sums have been paid to him or not. I cannot speculate on this point and since it has not been shown to the court that it has not been paid, I cannot make any order for its payment. In paragraph 22 of the Amended Statement of Facts, the claimant averred that while he was still negotiating with the defendant about the termination of his employment, the defendant wrote him Exhibits CC18 and CC19 threatening to eject him from his official accommodation at the defendant’s quarters. As a result of this, the claimant has now sought an order of this court to restrain the defendant from ejecting him from the accommodation until his employment is lawfully terminated. The evidence presented by the claimant, particularly Exhibits CC18 and CC19, show that the claimant held the accommodation by virtue of his employment with the defendant. I have held in this judgment that the claimant’s employment with the defendant has been terminated as at the date of Exhibit CC16. The effect is that such privileges he enjoyed under the employment have also been terminated. What is more, the letter of termination, Exhibit CC16, informed the claimant that “You have ceased to enjoy all rights and privileges applicable to members of staff of the Authority. You should surrender all the authority’s property in your possession … to the General Manager…” Therefore, as at the date of the termination, the claimant does not have any legal interest left in the property. Therefore, I do not find any reason why this court should restrain the defendant from recovering possession of the accommodation from the claimant. In the circumstance, this claim too fails. The claimant’s counsel has submitted in paragraph 4.3 of his written address that the case presented by the claimant is unchallenged, undisputed, and uncontroverted, as such, the court should accept the claimant’s case as established and proved. He cited Eze vs. NPA in support. I cannot conclude this judgment without addressing this very important issue. I agree with counsel that the effect of the defendant not calling evidence in defence or cross examining the claimant is that the claimant’s case is not disputed or challenged. However, the failure of the defendant to defend the suit does not remove the burden of proving his case on the expected standard from the claimant. Since it is the claimant that asserts and desires this court to give judgment in his favour, he is expected to prove his case to satisfaction and will succeed or fail upon the quality of evidence he presented. See Sections 131, 132 and 133 (1) of the Evidence Act 2011 (as amended). See also N.I.I.A vs. ANYAFALU (SUPRA) at 160. Furthermore, most of the reliefs sought by the claimant are declaratory in nature while the other reliefs seek orders flowing from the declarations. It is trite that a party seeking a declaratory relief must prove his entitlement to the declaration sought and he must succeed on the strength of his case. See FATOBA vs. OGUNDAHUNSI (2003) 11 WRN 56 at 84. This court cannot make the declarations sought merely on the ground that the defendant did not defend the action. Notwithstanding the fact that the evidence presented by the claimant in proof of his case is not challenged by the defendant, I am under duty to still evaluate the evidence and I must be satisfied that it sustains the claims sought by the claimant before I can grant the claims. This is what I have done in this case. I have carefully considered the evidence of the claimant in line with the established principles of labour law and I am satisfied that the reliefs sought by the claimant succeeds only in part. Of a very similar character to the instant case is the decision in CBN vs. JIDDA (SUPRA). Reliefs 1 and 2 sought by the respondent before the trial court, and which were granted, were a declaration that his dismissal contained in the letter of dismissal is null and void and a declaration that he is still in the service of the appellant and entitled to benefits and entitlements from the date of the purported dismissal until he attains the retirement age. On appeal, the Court of Appeal held that, it having found that the employment of the respondent with C.B.N, although a statutory body, did not enjoy statutory flavour, the reliefs ought not to have been granted by the trial court, and the Court of Appeal accordingly set aside the judgment of the trial court. I find the reasoning of their Lordships applicable to the circumstance of this case. Accordingly, reliefs 2 and 3 are granted while reliefs 1, 4, 5, 6 and 7 fail and are hereby dismissed. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Judge