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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA Before His Lordship: HON. JUSTICE O. A. SHOGBOLA JUDGE Date: 2ND APRIL, 2014 Suit No. NICN/ABJ/328/2012 BETWEEN REUBEN ADEJOH CLAIMANT AND 1. FEDERAL COLLEGE OF EDUCATION (TECH) GUSAU DEFENDANTS 2. THE GOVERNING COUNCIL, FEDERAL COLLEGE OF EDUCATION (TECH) GUSAU 3. THE PROVOST, FEDERAL COLLEGE OF EDUCATION (TECH) GUSAU 4. THE REGISTRAR, FEDERAL COLLEGE OF EDUCATION (TECH) GUSAU REPRESENTATION Samson Shaba Esq for the Claimant. O. I. Habeed Esq with Godwin Yakwo Esq for the Defednants. JUDGMENT By a complaint dated and filed 12th December, 2012 the claimant claims against the defendants jointly and severally are as follows:- 1. A DECLARATION that the withdrawal by the defendants of the study leave earlier granted plaintiff to undertake a Ph. D Studies at Odessa National University, Ukraine by a body other than the 2nd defendant is vindictive and therefore unjust, unlawful, illegal null and void. 2. A DECLARATION that the activities of the defendants which has made it impossible for plaintiff to access ETF grant which has been duly processed in his name to prosecute his Studies at Odessa National University, Ukraine is malicious, unfair, unwarranted and therefore null and void. 3. A DECLARATION that the withholding of plaintiff salary from March, 2012 to date without recommendations from any quarter and denial of promotion is unlawful, irregular, unwarranted, illegal and therefore null and void. 4. A DECLARATION that the conduct and activities of the defendants as stated in 1, 2 and 3 above after plaintiff had processed all his travel documents subjected him to mental anguish, psychological torture and agony and family hardship. 5. AN ORDER directing defendants to:- a. Restore plaintiff’s study leave. b. Facilitate plaintiff’s access to ETF grant which has been processed in his name. c. Pay plaintiff all his outstanding salary arrears and release his arrears of promotions and salary arrears thereto. d. Pay the sum of Thirty-three Million One Hundred and Twenty-eight Thousand Four Hundred and Fifty-two Naira (N33,128,452.00) as special damages and the sum of One Million and Five Hundred Thousand Naira (N1,500,000.00) being the cost of this action. e. General damages of Three Million Naira (N3M). Accompanying the complaint are statement of claim, list of witnesses, witness statement on Oath and list of documents dated 13th December, 2012. In reaction to the claimant’s claim the defendants filed a memorandum of conditional appearance dated 4th February, 2013 and filed on 4th February, 2013. Accompanying the memorandum of appearance are defendants’ statement of defence, list of witness and list of documents. The learned counsel for the defendants submitted that a sole issue falls for determination in relation to the instant suit namely:- Whether on the state of pleadings, and evidence led in this matter, the plaintiff has made out a case for the grant of the reliefs sought against the defendants? Counsel submitted the reliefs sought by the plaintiff in this suit are essentially declaratory in nature. That the law places a heavy burden of proof on the party who seeks declaratory reliefs such as the plaintiff and he is not expected to rely on the weakness of the defence in proof of his establishment to the reliefs sought. The above postulation of the law is fortified by plethora of decisions of the Appellate Courts such as in the case of A. G. CROSS RIVER STATE V A. G. FED. (2012) 16 NWLR (PT. 1327) 425 AT 487 D – E thus:- The above is clearly a declaratory relief sought by the Plaintiff who has the burden to establish his claim on the strength of his case and cannot rely on the weakness of the defence; if any. See Ali Ucha V Marthins Elechi (1012) MRSCJ (Vol. 1) 79 at 104 (2012) 13 NWLR (Pt. 1317) 303. In Dumez Nig. Ltd V Nwakhaba (2008) 18 NWLR (Pt. 1119) 361 at 373 – 374, this court pronounced that the burden of proof on the Plaintiff in establishing declaratory reliefs to the satisfaction of the court is quite heavy in the sense that such declaratory releifs are not granted even on admission by the defendant where the Plaintiff fails to establish his entitlement to the declaration by his own evidence. (Underlining supplied for emphasis). Similarly, in the case of AKANDE V ADISA (2012) 15 NWLR (PT. 1324) 538 AT 571 A – C. Counsel submitted applying the ratio in the above cases to the facts of the instant case, it is submitted that the Plaintiff has woefully failed to discharge the burden of proof placed on him by law in relation to proof of his entitlement to the reliefs sought in his statement of claim. Counsel then considered Relief 27(a) in the statement of claim prays this court to declare that the withdrawal by the defendants of the study leave earlier granted to the Plaintiff to undertake a Ph.D Studies at Odessa National University Ukraine, and by Exhibit R8, a letter written to the Ukraine Embassy confirming the grant of the study leave and request for the issuance of study visa. Counsel then said the circumstances under which Exhibits R6 and R8 were written have been adequately explained by the evidence of the witness of the Defendants particularly paragraphs 8 – 12 of the statement on Oath of the said witness sworn to on 5th March, 2013 to the effect that they were issued to facilitate the processing of the study visa for the Plaintiff while the college was still processing his documentation with a view to forwarding same to the Educational Trust Fund for approval of sponsorship and provision of the funds. Counsel further submitted that following the complaints by the students of NCE III Business Studies about extortion of money by the Plaintiff, it became necessary to investigate the complaint and to halt the processing of the study leave of the Plaintiff with the ETF and hence the issuance of Exhibit R9 being the letter dated 27th October, 2011 wherein the Plaintiff was informed of the temporary withdrawal of the study leave approval pending the conclusion of the ongoing disciplinary case against him. Counsel argued that the claimant cannot feign ignorance of the disciplinary case against him which bothers on the extortion of money from the students, contrary to the clear policies of the 1st defendant as indicated in Exhibits UG and UH respectively. Counsel further said the claimant by way of admission of the allegation leveled against him refunded the money he collected from the students as shown in Exhibit R17 and equally admitted in his evidence, that he appeared before the disciplinary committee of the 1st defendant in relation to the allegation of sale of books to the students under cross examination by the defence and therefore had the opportunity of knowing what the allegations are and equally responded to the allegations. Counsel then submitted that in light of the foregoing, there is no basis for this court to declare as sought for by the Plaintiff that the withdrawal of his study leave by the defendants is vindictive and illegal. Counsel referred to Exhibit R6 which is the letter of approval of study leave clearly indicated that it is the management of the 1st defendant that approved the study leave in favour of the Plaintiff and the approval letter was signed by the Deputy Registrar - ANOKWURU I. C. That similarly, the withdrawal letter for the study leave is equally by the evidence of the defendants’ sole witness authorized by the management of the 1st defendant and equally signed by same Deputy Registrar, ANOKWURU I. C. i.e. Exhibit R9. Counsel said there is no provision in the law creating the 1st defendant which is the Federal Colleges of Education Act, Cap. F8 Laws of the Federation of Nigeria which provides that the approval of study leave of temporary withdrawal of same must be done by the governing council of the college. The Functions and Powers of the Governing Council of the 1st defendant are contained in Sections 2(i), 2(a – d) and 6 1(a – q) of the Federal Colleges of Education of Nigeria, 2004 and none of it refers to the issue of grant or withdrawal of study leave. He said the act of the defendants in suspending the study leave granted to the Plaintiff to await the conclusion of ongoing investigation cannot by any stretch of imagination be regarded as an infringement of his fundamental right. Thus applying the ratio in the above to the facts of this case, it is submitted that Exhibit R9 from its content clearly states that the withdrawal is to allow for the conclusion of ongoing disciplinary case against the Plaintiff. He then submitted that once it is shown that the party complaining of denial of fair hearing has been afforded opportunity to be heard, the complaint of want of fair hearing cannot be made out. See the case of ITSUELI V S. E. C. (2012) 2 NWLR (PT. 1284) 254 AT 370 H AND 371 A wherein it was held thus:- In the circumstances of this case, the issue of fair hearing against the Administrative Proceedings Committee cannot avail the Appellant. See S.E.C. V Osindero Oni & Lasebikan (2009) 5 NWLR (Pt. 1134) 377. Furthermore, a party cannot complain of being denied the right to fair hearing when he was notified or given the opportunity of being heard. See Ezenwa V Best Way Mgt. Ltd & Ors (1999) 8 NWLR (Pt. 613) 61 and Ariori V Elemo (1983) NSCC 1, (1983) 1 SCNL 1. See also EZEIGWE V NWAWULU (2010) 4 NWLR (PT. 1183) 159 AT 207 D – E. He further submitted that as long as there is evidence which in this case has been duly admitted by the Plaintiff that he was given the opportunity to respond to the allegation of extortion of money from the students which admittedly amounts to a misconduct as it is in violation of clear policy of the 1st defendant as shown by Exhibits UG and UH, it does not matter that the niceties of the concept of fair hearing were not adhered to, by the disciplinary committee. See on this point the case of ISUELI V S.E.C. (Supra) at 368 – D – F. He said applying the above ratio to the instant case, it does not matter what procedure was adopted by the 1st defendant in the conduct of investigation in relation to the allegation of extortion of money from the students against the Plaintiff as long as he was afforded the opportunity to defend himself which he did and does not matter that he had already refunded the money before he was confronted with the allegation. He referred to the case of EKUNOLA V CBN (2013) 15 NWLR (PT. 1377) 224 AT 262 H wherein the Supreme Court held thus:- Besides Section 36(1) (Supra) arises where the denial of fair hearing has been charged against a court or tribunal established by law and not before domestic or standing adhoc tribunal raised departmentally by the parties as the 1st Respondent here. (Underlining supplied for emphasis). Counsel submitted as regards, relief 27(b) where the claimant is seeking a declaration of this court to the effect that the activities of the defendants which has made it impossible for the Plaintiff to access ETF grant which the Plaintiff claims has been duly processed in his name to proceed to Odessa National University, Ukarine as being malicious null and void, is with respect, nebulous, and therefore not grantable. Counsel submitted that the same principle applies to Relief 27(c) and 27e(ii) and (iii) contained in the statement of claim wherein the Plaintiff is seeking salaries, promotion, etc, without giving the necessary particulars. The above point came up before the Supreme Court in the case of UNIJOS V IKEGUOHA (2013) 9 NWLR (PT. 1360) 478 AT 498 E – F wherein the Supreme Court has this to say:- A claim that is vague and lacks certainty is no claim at all. In paragraph 13(b) of the statement of claim at page 4 of the record of appeal, the Respondent is seeking for the following reliefs. “An Order directing the defendant to confirm the Plaintiff as a Lecturer II in the department of Political Science of the University of Jos with effect from 27th January, 1995 with all his promotions, allowances and entitlements” (Italic mine for emphasis) Promotion from what grade to what grade and from what period to what period if I may ask. Allowances and entitlements of what nature, amount and from what period to what period if I may again ask. These are reliefs that are vague and not supported by primary facts or evidence as we shall soon come to see. The reliefs thus sought by the Respondent by this evidence are not only vague but uncertain and the relief claimed by evidence do not even include promotion but confirmation……… Thus applying the ratio in the above Supreme Court decision to the facts of this case, it is submitted that the claims of the Plaintiff as identified in reliefs 27(c), 27e(i) & (iii) of the statement of claim of the Plaintiff are uncertain and vague and therefore incapable of being granted by this court. In respects of the claim for promotion, the defendants witness under cross examination did clarify that there are 3 stages involve in the determination of the issue of promotion and there is no evidence before this court to show that the Plaintiff has scaled through the 3 stages to justify the claim for promotion quite apart from the fact that the said claim is not certain. The uncertainty of the relief identified herein is more pronounced with relief 27e(iii) in the statement of claim which reads thus:- “Pay Plaintiff all his outstanding salary arrears and release his arrears of promotions and salary arrears thereto”. He therefore urged the court to dismiss the items of claims in reliefs 27(c), e(ii) and (iii) of the statement of claim as being vague and uncertain. It is the counsel’s further submission of the defendants that claim for salaries, emoluments and allowances are in the nature of claims for special damages which must be strictly proved. In the absence of such proof as is the case herein, the claims must fail. See the case of ALAO V UNILORIN (2008) 1 NWLR (PT. 1069) 421 AT 466 F – C. Counsel also submitted that the claimant by Relief 27(e), (iv) is praying that you order the defendants to pay him the sum of N33,128,452.00 as special damages and N1,500,000.00 as cost of this action. To the counsel the said payments were made by the Plaintiff after the Plaintiff has been served with Exhibit R9 being the letter suspending the study leave approval granted to him. Thus the claimant went on a frolic of his own when the proceeded to expend money for the Ph.D Programme in Ukraine after the withdrawal of the study leave approval and cannot therefore expect the defendants to pay the expenses they did not approve of. The counsel submitted on relief 27(e) (i) of the statement of claim that this is contradicting the claims in Relief 27 e(iv) in that the Plaintiff is in one breath seeking for an order to be allowed to access the ETF grant and at the same time seeking for payment of same money by the defendants in relief 27 (e) (iv). To the counsel relief 27 e(ii) would definitely affect ETF, which is the Educational Trust Fund as it is the body that is to provide the sponsorship fund being sought for by the claimant and yet it has not been made a party to the instant suit. The relevant question to ask is whether this court can make an order against a party when the said party has not been joined to afford the party a hearing. This the counsel answer is capital NO, on the basis of fair hearing concept. Counsel said the defendants have consistently maintained that although by Exhibit R6, they have approved study leave for Plaintiff which was withdrawn by Exhibit R9, they have not forwarded the name of the Plaintiff to ETF for approval of sponsorship before the allegation of extortion of money was leveled against the Plaintiff which placed a temporary halt on the submission of the name of the plaintiff for ETF approval of sponsorship. That the claimant claims the approval of ETF grant is embedded in Exhibit R6 and that is a mystery that is yet to be unraveled as Exhibit R6 does not contain any sum of money as ETF grant/approval. The law is that courts do not grant reliefs in vain. See the case of PPA V INEC (2012) 13 NWLR (PT. 1317) 215 at 236 D. Counsel then submitted they seek the leave of this court to raise the issue of statute of limitation in relation to the instant suit as same is based on the evidence already admitted by the Plaintiff herein and it is on issue of jurisdiction for which there is no special procedure to the followed and can be raised at any stage of proceedings. See the case of NASIR V C. S. KANO STATE (2007) 5 NWLR (PT. 1190) 253 AT 276 C – D. Similarly, the law is that an issue of jurisdiction need not be pleaded once it can be obvious from the materials before the court and can be raised by a party or even suo moto by the court. See ELABANJO V DAWODU (2006) 15 NWLR (PT. 1001) 76 AT 129 A – B and 116 H. That the claimant has admitted under cross examination that the reason why he approached this court is because his study leave approval was withdrawn. The letter of withdrawal of study leave being Exhibit R9 was made on 27th October, 2011 and the instant suit was only filed in December, 2012. It is undoubted that the defendants are public officers, who by the provisions of Section 2(a) of the Public Officers Protection Act are protected from any action after the expiration of the 3 months period from the date of cause of action. That from the 27th October, 2011 to 12th December, 2012 is more than the three months period provided in the said law and therefore this action is statute barred and ought to be dismissed. In sum, counsel urged to dismiss the instant action in that:- a. The temporary withdrawal of the study leave approval granted to the Plaintiff is occasioned by the complaint of extortion of money from the students which is against the policy of the college and for which the Plaintiff has admitted culpability by way of refund of money he made to the students and to that extent the said withdrawal is justified. b. On the issue of fair hearing, it is in evidence that the Plaintiff was confronted with the allegation of extortion of money from the students and he was afforded the opportunity to defend himself and which he did and also refunded the money. It is therefore submitted that in the light of the facts before the court, there is no basis for the allegation of lack of fair hearing. c. That there is no evidence of the availability of the ETF grant to justify the order for the Plaintiff to access same as the name of the Plaintiff is yet to be forwarded to ETF for their approval and possible provision of funds. d. That the expenses incurred by the Plaintiff in the pursuant of his Phd Programme were done without the approval of the defendants having withdrawn the earlier approval and to that extent, the Plaintiff cannot validly claim a refund from the defendants particularly as the Plaintiff had undertaken the programme against the decision of the 1st defendant. The claimant’s counsel raised 4 issues in his addresses for determination:- 1. Whether the withdrawal of claimant’s study leave approval and with holding of his ETF grant and stoppage of salary without first investigation the purported allegations to conclusion was proper. 2. Whether the verdict reached by the Disciplinary Committee before the date fixed for further hearing was not a violation of claimant’s right of fair hearing. 3. Whether claimant has not proved his case as required by law to entitle him to the releifs sought. 4. Whether this action statute barred. Issue One Whether the withdrawal of claimant’s study leave approval and with holding of his ETF grant and stoppage of salary without first investigation the purported allegations to conclusion was proper. On this issue the claimant’s counsel submitted that the withdrawal of claimant’s study leave on ground of an alleged misconduct which was yet to be investigated is improper, wrong and unlawful. The employment of claimant by Exhibit R1, particularly paragraph 3(a) is governed by the Conditions of Service of the 1st defendant. The paragraph read as follows:- ….. Your appointment is governed by the Condition of Service operational in this College. That as long as you remain in the service of the College, … and you will be subjected to college rules and regulation in force. Counsel said assuming without conceding that claimant was dully investigated and found wanting, by the regulations governing the conditions of service 1st defendant, it is only the Council, that is 2nd defendant that can mete out punishment for the type of misconduct claimant was alleged to have committed. Counsel referred the court to Exhibit R34 especially regulations 6.6.2 and 6.6.3 at P.29. Claimant in his statement on Oath in paragraph 9 state that 2nd defendant whose statutory duty it is to do what the Deputy Registrar did via Exhibit R9 had been dissolved before Exhibit R9 was authored. This piece of evidence was not challenge by the defendants in any way. It is trite where a statute confers power on any body or authority to do a thing it expects absolute compliance in order for such act to receive the approval of the law. That in the case of Oloruntoba – Oju V Abdul-Raheem, (2009) 26 WRN 1 at 54 lines 10 where the Supreme Court of Nigeria held as follows:- When a statute has conferred on any body the power to make decisions affecting individuals, the court will not only require the procedure prescribed by the statute to be followed but will readily imply so much and no more to be introduced by way of additional procedural safe guides ….. See also the cases of Kwara State Polytechnic, Ilorin V Shittu (2013) 17 WRN 78 at 121 lines 5 – 10 and Kwara State Poly V Saliu, (2012) 41 WRN 26 at 75 lines 25 – 30. In Shittu’s case at P. 122 lines 10 – 25 the court said:- It is trite law that if an enactment bestows on a particular person or authority the power to do a specific duty, it is only that person or authority and none other than that person can perform the assignment before it will receive the imprimatur of the law. Counsel submitted that Exhibit R9 runs foul of Exhibit R34 and the law and as such should be set aside, and declared null and void and of no effect whatsoever. Regulation 14.6.10 (P. 72) states that the only circumstances upon which an employee of 1st defendant on study leave will forfeit or have it withdrawn is where the beneficiary change institution or course without prior approval of the college. The regulation provides inter alia:- An employee on study or training leave shall not change the course, place or instituting for which the leave was granted without the prior approval of the college. Failure to comply with this rule shall constitute misconduct and shall render the staff liable among other things to the withdrawal of the leave thing (emphasis mine). By the above provision a beneficiary of study leave by 1st defendant can only have it withdrawn if he/she changes the course or institution of study for which leave was granted without prior approval of the 1st defendant. That this was not the allegation against the claimant. Therefore, the withdrawal of claimant’s study leave approval for reasons other than that provided for in Exhibit R34 which by contract of the parties is clearly expressed in Exhibit R1 is to say the leave, improper and unlawful and amounts to a breach of contract. He urged the court to so hold and set the withdrawal aside. The employment of claimant is one with statutory flavour, that is an employment regulated statute and conditions of service as clearly stated in Exhibit R1 and the 1st defendant’s “Regulations Governing the Conditions of Service of Staff. Counsel referred the court to the case of Akinedo V Edo State Government (2012) WRN 64 at 82 – 83 lines 45 – 50 where the court defined an employment with statutory flavour thus:- Counsel submitted that in an employment (as the claimant’s) regulated by statute procedures prescribed by the statute in doing anything as it relates to the rights and privileges of the employee must strictly be followed. The Court of Appeal in the case of University of Ilorin V Abe (2003) FWLR (Pt. 164) 267 at 278 (per Amaizu JCA) instructively stated that:- It is now firmly established by a long line of decided cases by the apex court that when an office or employment has a statutory flavour, in the sense that the conditions of service of an employee are provided for and protected by a statute or regulation made there under, a person holding that officer or is in that employment enjoys a special status over and over the ordinary master/servant relationship. In order to discipline such a person, the procedure laid down in the relevant statute or regulation must be complied with strictly. (emphasis mine). He referred the court to the case of Kwara Polytechnic Ilorin V Shittu, (Supra) at 109 lines 30 – 45 and at 121 lines 5 – 10. Clearly my lord, the alleged misconduct for which claimant’s study leave was withdrawn is not the same as the one contemplated by 1st defendant’s conditions of service of staff, that is, Exhibit R34 as can be seen in Regulation 14.6.10 (supra). To the counsel it was wrong of the defendants to go out side the regulation guiding the employment of claimant by using extraneous condition to withdraw his study leave approval. He referred to decision in the case of Engineer Kalu George Egbeke V 1. The Federal Polytechnic, Idah and 2. The Council, Federal Polytechnic, Idah in Suit No. NICN/ABJ/219/2012 delivered on the 14th day of February, 2013 at P. 20 Paragraph 5 wherein your lordship held inter alia:- The contract of service is the bedrock or foundation upon which the employee must base his case. Where the contract of employment has been reduced into writing the court as well as parties are bound by these terms and the court has no duty to look outside the terms stipulated and agreed therein by parties to the contract in determining the respective rights and obligations of the parties in case of dispute on the contract. Your lordship went further at P.21 particularly paragraph 6 thus:- It is also trite that where parties have embodies the terms of their contract in a written document, extrinsic evidence is not admissible to add, vary, subtract from or contradict the terms of the written instrument. Counsel then submitted that the withdrawal of claimant’s leave having not complied with the conditions of service of 1st defendant is unlawful, illegal, null and void. He also referred to decision in the case of Adaramola Ekundayo Sanuel V Rector, Federal Polytechnic, Bida & 2 Ors in Suit No. NIC/ABJ/39/2011 decided on the 5th day of March, 2013 at P. 22 particularly paragraph 4. This being the case, the subsequent withholding of claimant’s salary which was a consequence of the wrongful purported withdrawal, comes under the same hammer of nullity. It is trite that you cannot put something on nothing and expect it to stand. See McFoy V U.A.C. (1962) A.C. 152. The effect of an act fraught with infraction or violation of a laid down procedure and prescription by the statute/regulations guiding an employment with statutory flavour was stated by the court in the case of Benin Electricity Distribution Company Plc V Esealuka (2013) 31 WRN 116 at 139 lines 10 – 20 when it said:- There is no doubt that there is a vast difference between an employment with statutory flavour in which case the terms of employment of the staff is governed by statute creating that organization and any infraction of the terms of employment and discipline as guaranteed by the statute is bound to be declared null and void … In such situations, the employee is restored to the position as it no disciplinary measures had been taken at all. By Exhibit R. 6 (study leave approval), claimant was to proceed for his Ph.D programme abroad from the 31st December, 2011 and was only expected back to 1st defendant on the 31st December, 2014. Counsel said a look at Exhibit R6 leaves no one in doubt that everything about claimant’s sponsorship by ETF was perfected before it was issued. The tone of Exhibit R6, especially the opening paragraph is unequivocally clear, it states:- I am pleased to inform you that the management has approved your application to undergo a programme leading to the award of Ph. D in Political Science at Odessa National University, Ukraine, with effect from 31/12/2011 on full time ETF Sponsorship … There is nothing anticipatory or inconclusive about claimant’s full sponsorship by ETF. It was not made subject to any condition his application having been dully processed. He referred the court to Exhibits R25 and R26. Under cross examination, the lone witness for the defence (4th defendant) admitted that claimant is still an employee of 1st defendant. He submitted that the stoppage of claimant’s salary on the ground that his whereabouts were not known cannot be sustained in view of Exhibit R6 which stated in an unambiguous manner when claimant is to proceed and when he is expected back to the College. Finally, on this issue counsel submitted that since the only condition for which claimant is to the have his leave approval withdrawn never happened, therefore the withdrawal ab nitio and withholding of his salary was null and void. He urged the court to so hold. In respect of Issue Two: Whether the verdict reached by the Disciplinary Committee before the date fixed for further hearing/investigation of the allegations against claimant was not an infringement of his right of fair hearing. Counsel commenced stating that fair hearing is the hallmark of every judicial or administrative investigation. It is founded upon the twin pillars of justice. The Black’s Law Dictionary 9th Edition at P. 789 defines fair hearing as a judicial or administrative hearing conducted in accordance with due process. It has been held that a hearing is only said to be fair when parties to the dispute are given a hearing and opportunity of hearing. See the case of Ejiofor V Mbanugo (2013) 16 WRN 98 at 110 lines 10 – 30 and 112 lines 10 – 15. Counsel submitted that the issue of fair hearing, contrary to defendant’s counsel’s submission is not restricted to judicial proceedings alone. It extends to quasi judicial and administrative investigation or inquiries. In the case of Abereola V Toye (2013) 4 WRN 114 at 139 lines 10 – 25 the Court of Appeal held inter alia:- An employee has the right to be heard before any decision is taken against him by his employer, the principle or doctrine of fair hearing is constitutionally guaranteed under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria and it cannot be wished away at any inquiry, investigation or trial. (emphasis mine). Similarly, the Apex Court in the case of Eze V Spring Bank Plc (2012) 20 WRN 1 at 21 lines 5 – 15 held that:- The principle of natural justice as enshrined in the rules of natural justice, the common law and the Constitution of this country is certainly not confined to the proceedings of courts or tribunals under Section 6(5) of the Constitution but to every situation wherever a person or authority is concerned in the determination of rights of another …. He submitted that even in that administrative investigation claimant was entitled to fair hearing and this right cannot be compromised on any ground. See the cases of Audu V FRN (2013) 19 WRN 53 at 65 – 64 lines 45 – 20 and Ariori V Elemo (1983) All NLR 1 at 15. He submitted that a close look at Exhibits R10, R20 and Ui1-5 shows that claimant’s right to fair hearing was compromised by the Disciplinary Committee set up by 3rd defendant to investigate him. Exhibit R20 was the first invitation to claimant to appear before the Committee on the 18th October, 2011. Exhibit R10 was another invitation by the same person who issued Exhibit R20 to claimant to appear before the Committee on the 21st November, 2011. 4th Defendant under cross examination admitted that the Disciplinary Committee did not conclude work a the first sitting and so Exhibit R10 was issued to claimant to appear before the Disciplinary Committee again on the 21st November, 2011. Surprisingly on the 15th November, 2011 a week before the rescheduled date, Exhibit Ui1-5 that is, the Committees report which determined claimant’s fate overtly without fully hearing him to conclusion was ready. Obviously, claimant was prejudged contrary to the uncompromising demands of the twin pillars of justice one of which is that all parties to a dispute must be given the reasonable opportunity to be heard. He referred to Exhibit R.34 particularly regulation 6.6.2 at P.29. It provides that:- The council shall give the staff whose conduct is the subject matter of the investigation by the committee a reasonable opportunity of appearing before the committee and of making such representation as he may think necessary with respect to any allegations made against him. According to the claimant’s counsel submitted that the mind of the committee was already made up against the claimant before it began its work. This smacks of fair hearing. He urged to resolve this issue in favour of the claimant. See the case of Union Bank (Nig.) Plc V Nwanajuo (supra) at 168 lines 40 – 45. That it is trite that fair hearing does not consist on the justness or otherwise of the result but on the procedure followed to reach a decision. In the case of First Inland Bank Plc V Alliance Int. (Nig.) Ltd (2013) 18 WRN 100 at 117 lines 25 – 30 the court held that:- The breach or otherwise of the right to fair hearing is a question of whether opportunity of being heard had been granted to the parties. It is a matter of the procedure followed and not the correctness of the court’s decision. The contention of the claimant is that an inquiry or investigative panel which issued Exhibit R10 to hear the further evidence of claimant on the 21st day of November, 2011 ought not to have concluded their investigation on 15th day of November, 2011 when the claimant was still waiting to further debunk the allegations against him on the 21st day of November, 2011 when Exhibit R10 would have become due. The outright denial of the claimant from been heard on the 21st day of November, 2011 made the inquiry/investigation a Kangaroo one which its findings does not in any way comply with the principles of fair hearing. What then is the effect of violation of ones right to fair hearing in a dispute? Fair hearing is sacrosanct because it attaches to man for being a part of mankind. Once the procedure adopted at the hearing, whether in court, at any administrative inquiring or investigation violates a party’s right to fair hearing the effect is fatal to the outcome irrespective of its correctness or otherwise. In the case of Audu V FRN (2013) 19 WRN 53 at 64 lines 10 – 20 the Supreme Court of Nigerian held:- The effect of denial of fair hearing is trite in law. In other words, once there is a breach of the right of fair hearing, the whole proceedings in the course of which the breach occurred and the decision arrived at by the correct, becomes a nullity. The effect of denial of fair hearing is settled in law. Once there is a breach of the right to fair hearing, it nullifies the entire proceedings and the outcome thereby. See Bamgboye V University of Ilorin (1999) 10 NWLR (Pt. 322) 290 at 333, Union Bank (Nig.) Plc V Nwanajua (supra) at 167 – 169 lines 15 -5 and Salu V Egeibon (1994) 6 NWLR (Pt. 348) 23 at 44. On issue Three Whether claimant has not proved his case as required by law to entitle him to the releifs sought. Claimant’s counsel submitted that the standard of proof in civil claims is based on preponderance of evidence. He referred the court to the case of Ezenwa Bros. (Nig.) Ltd V Ona-Jones (Nig.) Ltd (2012) 34 WRN 144 at 163 lines 5. In the case of Mini Lodge V Ngei (2010) 10 WRN 58 at 91 lines 10 – 15 the court held:- It is equally trite that proof in a civil is on the balance of probability or on preponderance of evidence. At any trial, parties give evidence as to the claim before the court and judgment will at the end of the day be given to the party that evidence tilts in favour of in the case. Even in claim for special damages, the standard of proof is also on balance of probability or preponderance of evidence. That the claim is special does not change its civil character. On this proposition he referred to the case of Ezenwa Bros. (Nig.) Ltd V Ona-Jones (Nig.) Ltd (supra) at 170 lines 40 – 45 where the Court of Appeal held that:- A claim for special damages must be specially proved. I must however, add that the proof of special damages is not radically different from the general method of proof in civil cases. It is equally proved on balance of probability. He further submitted that special damages or claim are not proved in any way other than adducing credible to establish same. Paragraph 15 (a – i) of claimant’s statement of claim clearly states part of his claim and tendered exhibits to proof. It is claimant’s evidence that what he is entitled to as Ph. D Student as ETF intervention grant is N14M (Fourteen Million Naira). This was not impeached in any way. By Exhibits R6, R261-2, R25, R12 (particularly paragraph 11) and R27 (paragraphs 1, 8 and 9) it is crystal clear that claimant’s application for ETF sponsorship was dully processed and approved, and his name was included in the payment list prepared by the college. None of these was challenged by the defendants. The defendants did not tell the court what amount claimant is entitled to from ETF if it is not N14M. It is the law and that where evidence is adduced by Plaintiff for special damages and same is not challenged or contradicted, the onus is discharged. He referred the court to the case of Ezenwa Bros. (Nig.) Ltd V Ona-Jones (Nig.) Ltd (supra) at 171 line 5 where the court held that “where the evidence adduced by the Plaintiff on special damages is neither challenged nor contradicted, his onus of proof is discharged …” Claimant in his statement on Oath at paragraphs 10, 11 (a – h) and 12 outline his expenses and his ETF claim. None of these was challenged or contradicted in any way. The sweeping defence of the defendants is simply that since claimant’s leave approval was withdrawn is not entitled and nothing more. As regards the promotion denied claimant, that the denial even when claimant was dully and strongly recommended by his Dean was baseless, malicious and vindictive. By Exhibit R211-3, claimant having met with every requirements for promotion to Lecturer I was dully recommended by his Dean. Claimant at paragraph 20 of his statement of claim and paragraph 14 of his statement on Oath he accused 2nd defendant of wrongly denying him the promotion for he have not make the panel which he had met all conditions. Still in paragraph 20 of claimant’s claim he petitioned the Chairman of 2nd defendant for redress, nothing was done. By Regulation 3.3 of Exhibit R34, to qualify for promotion from Lecturer II to I the academic staff must have spent a minimum of three (3) Yes years on the present position. In Exhibit R3, claimant’s grade level was adjusted upon complaint to Lecturer II and backdated to 2007. From 2007 to 2011 (when claimant was recommended for promotion to Lecturer I) Yes made it four (4) years which is over and above the three (3) years Exhibit R34 prescribes. At page five (5) of Exhibit R21, claimant was scored 81 out of the 100 maximum points. The question now is, what else was claimant expected to do to get promoted? Counsel submitted that claimant met all the conditions according to the promotion guidelines but was simply victimized. It is one of claimant’s prayers for an order of this court to direct defendants to pay his outstanding salary arrears and release his arrears of promotion and salary arrears thereto. Further that it was not proper to state or quote any amount as the arrears of salary withheld and arrears of promotion denied since the wrongful acts are still ongoing. It is on record that claimant is still an employee of 1st defendant. What is more, the calculation of claimant’s claim on this leg of his claim is something that will be based on a chart known to both the claimant and the defendants. Counsel contended that the court can rightly order the payment of claimant’s arrears of salary and payment of arrears of promotion from 2011 when claimant was victimized and unlawfully denied, and arrears of grade level adjustment from 2007. He referred the court to Exhibit R3. Your lordship ordered in this manner in the case of Engineer Kalu George Egbeke V The Federal Polytechnic & 1 Or (supra) at P. 24 paragraph 1 when you said, “The claimant is therefore entitled to all his salaries and allowances from 18th July, 2012 until the right action is taken by the defendants”. Even in the instant case the period of denial is certain. Finally, on this issue counsel submitted that from the foregoing proved facts the irresistible inference is that claimant was actually entitled to N14M as ETF grant and arrears of his withheld salary, promotion to Lecturer I since 2011 and promotion arrears. He refer the court to the case of Edokpolor V Ohenhen, (1994) 7 NWLR (Pt. 358) 511 at 529 where the Supreme Court held that:- A court will presume the existence of one fact from the existence of proved facts, where such a presumption or inference is irresistible or where there is no other reasonable presumption or interference which fits the facts or situation. See also Kwara State Poly V Saliu (supra) at 68 – 69 lines 45 to 5. Finally, on issue Four:- Whether this action is statute barred. The Black’s Law Dictionary 9th Edition at P. 251 defines ‘cause of action’ as “a group of operative facts giving rise to one or more bases for suing …” The Court of Appeal in the case of Benin Electricity Distribution Co. Plc V Esealuka (supra) at 138 had this to say on the meaning of the phrase ‘cause of action”:- The phrase ‘cause of action’ is a combination of facts and circumstances giving rise to file a claim for a remedy in court. It includes every material fact which is necessary to be proved to entitle the plaintiff to succeed. Much earlier the Supreme Court in 1972, per justice Fatayi Williams (of blessed memory) in the case of Savage & Ors. V Uwaechia (1972) 1 All NLR (Pt. 1) 251 at 257 gave a classic definition of the phrase cause of action thus:- A cause of action is defined in Stroud’s Judicial Dictionary as the set of circumstances giving rise to an enforceable claim. To our mind, it is in effect, the fact or combination of facts which gives rise to a right to sue and it consist of two elements – the wrongful act of the defendant which gives the plaintiff his cause of complaint and the consequence damage. See also Poly Ibadan V Adesina (2012) 38 WRN 72 at 94 lines 15 – 30. Claimant’s grievances span from wrong placement considering his credentials, denial of promotion, withdrawal of study leave approval/none release of his ETF grant and subsequently, withholding of his salary. By Exhibit R211 and R222 and claimant was recommended by his Dean for promotion in the 2010/2011 promotion exerciser. The meeting of 2nd defendant which approved promotions wherein claimant was denied was held on the 26th to 27th October, 2011. He referred to Exhibit R4 particularly paragraph 5. In response to claimant’s complaint about his wrongful placement Exhibit R3 was issued by the college to claimant. Exhibit R3 did not correct the error of placement because instead of Lecturer I which claimant asked for he was given Lecturer II in the adjustment. Exhibit R20 initiated an administrative investigation against claimant for an alleged misconduct. While the investigation was going on Exhibit R9 was issued by the college to the claimant. Claimant swiftly reacted to the above chain of events/facts by authoring Exhibits R4 and R27 which were well within three (3) months. It is the contention of the claimant’s counsel that the reactions of claimant which came within the statutory three months saved this action from being caught up with the statute of limitation. It would have been a different ball game if claimant’s reaction to the illegal acts of the defendants came after three months. He referred to the decision in Oboh Joel Enohma V 1. Federal Civil Service Commission and 2. Ministry of Foreign Affairs, in Suit No. NICN/ABJ/181/2012 delivered on the 10th day of October, 2013 at P. 7 paragraph 3. Counsel submitted that cause of action does not arise in abstract, it flows from a chain of actions and reactions which eventually confers a right of action on the aggrieved party. He submitted further that the reaction of claimant via Exhibits R4 and R27 constitute or form part of the set of facts or circumstances which gave rise to this action. Claimant’s salary was stopped in March, 2012. In reaction to this act of defendants, claimant protested by petitioning the Public Complaint Commission by a letter of complaint dated 8th May, 2012 in which the Provost and Chairman of Council of 1st defendant among others were copied. He referred to Exhibits R121 and R122. It is the law that the determination of when a cause of action arose largely depends on the circumstances of the case. For the above proposition he referred the court to the case of Faroly Establishment V Nigerian National Petroleum Corporation (N.N.P.C) (2011) 5 NWLR (P. 1241) 457 at 478 para E where the court held that:- The consideration of whether or not an action is statute barred is `predicated on when the cause of action accrued. Presupposedly, the determinant factor, therefore, could largely be dependent upon the surrounding circumstances of the case. (emphasis mine). That given the chequered history and circumstances that led to the institution of his action the action is not caught up by the statute of limitation of particular are Exhibits R4 and R27, R121 and R122. That after waiting for a reasonable time expecting that the defendants would retrace their steps and right the wrongs against claimant, they never did. As a result, the firm of Agbanah, Obaje & Co. had to write the college in August, 2012. See Exhibit R18, 18(1). Exhibit R19 is a response by Al-Ihsan Law Chambers on behalf of defendants. As a further reaction to Exhibit R19, claimant’s counsel wrote again on the 1st day of November, 2012 that is Exhibit R28. That the above chain of actions and reactions which finally culminated in the filing of this suit on the 12th day of December, 2012 fit into the above definition of what a cause of action is as was given by both the Black’s Law Dictionary and the courts. He urged the court to hold that this action is not statute barred. As regards the general damages, it is the law that damages necessary follow wrong. And that where there is wrong/damage there must be a remedy. Claimant averred and testified that the activities of the defendants subjected him to untold hardship, trauma and lost of his daughter by name Deborah. He urged the court to award the general damages as claimed. On points of law the Defendant s’ reply to the claimant’s final written address Submitting that contrary to the argument of the claimant contained in paragraph 3.3 of his final written address, the provisions of regulations 6.6.2 and 6.6.3 of the 1st defendant’s Regulations governing the conditions of service and admitted as Exhibit R.34 do not apply to the facts and circumstances of this case for the following reasons:- a. The provisions relate to the issue of suspension of principal staff or any member of the academic staff/administrative staff of the 1st defendant. He referred the court to the provisions of regulations 6.6 and 6.6.1 of Exhibit 34 at page 28 thereof which read thus:- 6.6. Suspension 6.6.6 If it appears to the council that there are reasons for believing that any of the principal staff or any member of the Academic staff/of the college should be suspended on the grounds of misconduct or inability to perform the functions of his office, the council shall:- .……………………………………………………………….” The provisions of regulations 6.6.2 and 6.6.3 of Exhibit R.34 referred to by the claimant are the offshoot of the provision of regulation 6.6.1 reproduced above. ii. Exhibit R9 for all intent and purpose is not a letter of suspension of the claimant as a staff of the 1st defendant but a letter of temporary withdrawal of study leave granted to the claimant. iii. It follows that the provision of Regulations 6.6.2 and 6.6.3 of Exhibit R.34 which deal with suspension of staff of the 1st defendant cannot be applied to the facts of the instant case which does not involve the issue of suspension of the claimant as a staff of the 1st defendant and therefore, all the arguments about the dissolution of the council of the 1st defendant are irrelevant to the issue of the making of Exhibit R.9. It is against the foregoing submission that counsel urged the court to discountenance with the cases of OLORUNTOBA-OJU V ABDULRAHEEM (SUPRA), KWARA STATE POLYTECHNIC, ILORIN V SHITTU SALIU (SUPRA) cited in paragraph 3.4 of the claimant’s final written address as the ratio in relation thereto are not applicable to the facts of this case. Additionally counsel said, the grant of study leave to an employee of the 1st defendant as is the case with the claimant is not a right that is capable of enforcement and made a subject of application of the rules of natural justice. He referred to Regulation 14.6.8 of Exhibit R.34 at page 72 thereof which reads thus:- Study leave or training leave is a privilege and not a right and the college is not bound to grant such leave to any employee or is the college or appropriate committee bound to give reasons for the success or failure of the application for such leave. (Underlining supplied for emphasis). As regards the provision of Regulation 14.6.10 of Exhibit R.34 relied upon by the claimant in paragraph 3.5 of the claimant’s final written address, it is submitted that the said provision only provides for sanctions for a beneficiary of study leave who changes his course of study or institution without prior approval of the college but did not make that as the only circumstances for which the study leave granted can be recalled, withdrawn or suspended contrary to the submission of the claimant in paragraph 3.6 of the claimant’s final written address. Counsel submitted that recommendation contained in the report of the disciplinary committee set up to investigate the allegation against the claimant is not an issue for determination in this suit. The committee’s report is Exhibit U1 – 5 and the verdict is one for the termination of the claimant. The claimant in the entirety of his pleadings and evidence in this case has not raised any issue about his termination from service of the 1st defendant. The 1st defendant has not taken any step in relation to the recommendation contained in Exhibit U1 – 5. It is therefore submitted that the entire argument of the claimant under issue two in paragraph 4.0 of the claimant’s final written address particularly in relation to the sequence of the emergence of Exhibit U1 – 5 to Exhibit R10, and R20 goes to no issue as the termination of the claimant is not an issue for determination by this court in relation to this matter. As regards the issue of N14 Million alleged to be the ETF Intervention Fund due to the claimant from the defendant’s as argued by the claimant in his final written address in paragraph 5.5 thereof, it is submitted with respect that the claimant’s claim in relation to the ETF Intervention Fund is for the court to direct the defendants to enable the claimant access the fund from ETF. See relief 27 e(ii) of the statement of claim of the claimant. In the entirety of the pleading of the claimant, including the releifs sought, there is no where the sum of N14 Million was pleaded as representing the sum due to the claimant from the defendant as ETF Intervention Funds. The issue of N14 Million only came up under cross examination of the claimant and to the extent that same is not covered by the pleading of the claimant, it goes to no issue. See the case of OKWEJIMINOR V GBAKEJI (2008) 5 NWLR (PT. 1079) 172 AT 196 C – G wherein the Supreme Court held thus:- In the first place, the evidence elicited under cross examination on which the Court of Appeal based its findings quoted above was not founded on issues raised in the pleadings. I am therefore persuaded by the submission of learned counsel for the Appellant that they go to no issues for it is settled that evidence obtained in cross examination but on facts not pleaded is inadmissible. Counsel therefore urged the court to decline the request of the claimant in his final written address to the effect that the defendants be made to pay the claimant N14 Million as ETF Intervention Fund when there is no evidence that any sum of money has been availed to the defendants by ETF for the claimant to warrant ordering the defendants to give same to the claimant. As regards the issue of statute of limitation, it is submitted that contrary to the argument of the claimant contained in paragraph 6 of the claimant’s final written address under issue 4 formulated by the claimant, the accrual of cause of action for the purposes of the application of statute of limitation is not dependent on the reaction of the defendants to the claims of the claimant. What determines the time a cause of action accrues is the time when incident that forms the subject matter of complaint occurs. In respect of the instant suit, the development that gave rise to the instant cause of action is the temporary withdrawal of the study leave granted to the claimant as manifested in Exhibit R9 which is dated 27th October, 2011. The claimant equally admitted that much under cross examination when he said he came to court because of Exhibit R.9. In the case of EDO V ANADI (2012) 8 NWLR (PT. 1301) 69 AT 97H, it was held thus:- Generally, a cause of action accrues on the date on which the incident giving rise to the cause of action arose. A statute of limitation begins to run from the moment the cause of action arose, for the purpose of instituting an action in court, time begins to run from the date the cause of action accrues. See Okenwa V Military Governor Imo State (1996) 6 NWLR (Pt. 455) Page 394. See also the case of MIN. F.C.T. V M. H. (NIG.) LTD (2011) 9 NWLR (PT. 1252) 272 AT 297 C – D. If there was any doubt about the fact that all that is required for the claimant to have proceeded to court to ventilate his grievances have accrued for the purposes of the application of the limitation law since the year 2011, the letter of the claimant dated 27th January, 2012 and admitted as Exhibit R.27 clearly contains sufficient facts to aggregate the cause of action in this suit and yet the case was only filed on 12th December, 2012 more than three months after the accrual of the cause of action thereby making the provision of Section 2(1)(a) of the Public Officers’ Protection Act invocable and applicable to the instant case. According to the counsel contrary to the submission of the claimant particularly the argument in paragraph 6.6 of the claimant’s final written addresses, the three months period stipulated under the provision of the Public Officer’s Protection Act is the period available for the claimant to file the instant action in court from the date the cause of action accrued and not for the period the claimant and the defendants exchange correspondence as the period of exchange of correspondence on a cause of action that has already accrued will not be used to revive the cause of action just as the period of negotiation by parties would not prevent limitation from running. See the case of S.P.D.C.N. LTD V EJEBU (2011) 17 NWLR (PT. 1276) 324 AT 342 A – C. Additionally counsel said to the extent that the cause of action in relation to the suspension or temporary withdrawal of the study leave granted to the claimant as manifested in Exhibit R.9 accrued on 27th October, 2011 and it is the foundation of all the other subsidiary claims/reliefs of the claimant, the said subsidiary reliefs are equally contaminated and affected by the fact that the said claim is statute barred having not been filed within 3 months from 27th October, 2011. The above proposition is fortified by the decision in the case of N.D.I.C. V GOVERNING COUNCIL, I.T.F. (2012) 9 NWLR (PT. 1305) 252 AT 276 D – H. Counsel argued that the claimant has admitted in paragraph 6.9 in his final written address that his salary was stopped in March, 2012 and he reacted by way of a letter of complaint to the Public complaint commission by a letter of complaint dated 8th May, 2012. It is clear that as at March, 2012 when the claimant’s salary was stopped, a cause of action has accrued for the claim for the payment of his salary by the defendants and time stated running from the said month of March, 2012. If the cause of action in relation to the stoppage of the salary of the claimant had not accrued as a March, 2012 when same was stopped, on what basis or cause of action did the claimant petition the public complaint commission vide his letter of 8th May, 2012 referred to in paragraph 6.9 of the claimant’s final written address, one may ask? He therefore urged the court to hold that the date of accrual of cause of action for the purposes of application of limitation law does not stop running merely because the claimant is exchanging correspondence with the defendants or other authorities in relation to the subject of complaint. On the whole, counsel for the defendant urged the court to dismiss the instant action on the basis that a case has not been made out and that same is caught by statute of limitation. I have carefully considered the submissions and authorities cited by counsel in their final briefs of argument, the issues for the resolution of the court are:- 1 Whether the claimant’s suit is statute barred. 2. Whether the claimant is entitled to the reliefs sought. Learned counsel for the defendants has argued that the claimant suit is caught by the provision of Section 2(a) of the Public Officers Protection Act. He submitted further that the defendants been public officers are protected by the Act brought after three months from the cause of action. He contended that the cause of action arose on the 27th of October, 2011 and the action was instituted in this court on the 12th of December, 2012 which is more that three months period allowed by the Act. That for this reason the action is statute barred and should be dismissed. The issue of limitation of action raised by the defendants must be settled before the court will considered the reliefs sought by the claimant. This is because it touches on the competence of the court to hear and determine the suit. The claimant’s counsel contention however, is that the action arose from a chain of actions and reactions which eventually confers a right of action on the claimant. The counsel contended further that the claimant salary was stopped in March, 2012 and the study leave earlier granted to him to pursue his Ph.D Degree Studies at Odessa National University, Ukraine was withdrawn by the defendants without given him fair hearing. That the action of the defendants was done in bad faith, unfair, malicious, unlawful, illegal, null and void. From the facts of this case a mere look at the circumstance shows that the wrongful act of the defendants which the claimant is complaining about are still continuous i.e. the salary has not been restored the study leave temporary has not been restored. It would be necessary for the court to decide whether the defendants are acted outside the scope of their authority or without a semblance of legal justification. The Act cannot be read in isolation because in my view, the allegations raised by the claimant against the defendants are one that are yet to be abated. In other words, the injury has not ceased and so the Public Officers Protection Act will not apply. The jurisdiction of this court in particular to the present case is not negatively affected by the Act and the court therefore has jurisdiction to hear this case. On the 2nd issue, whether the claimant is entitled to the reliefs sought, these reliefs will be sub divided into three. The 1st (a). is whether the court can made a declaration that the withdrawal of the claimant’s scholarship to undertake his Ph.D Studies at Odessa National University Ukraine other than the 2nd defendant that it is the Governing Council is vindictive and therefore unjust, unlawful, illegal, null and void. 1.(b) That the activities of the defendants have made it impossible for him to access the ETF grant as null and void, and for the restoration of the study leave. 1.(c). And for an Order of this court directing the defendants to pay arrears of salaries. There is no running away from the fact that what led to this case was the allegations or report made by the NCE III students of the School of Business of the 1st defendant against the claimant in a letter dated 10th October, 2011 alleging that the claimant collected money in respect of his books this led to the temporary withdrawal of the study leave approval pending the investigation of the allegation. The sale of books or journals directory to student is a conduct prohibited by the college and for which a circular dated 23rd August, 2010 in that regard was issued by the Registrar of the College to staff regulating sale of handout, books or journals. The provisions of paragraphs 3 and 4 of the circular of 23rd August, 2010 state:- Any staff that has documents/journal which he/she wants to give to his/her students should root it through the head of department. Interested student will then contribute money and photocopy the document assisted by school, admin officer and class representative. While text books be taken to book shops or book vendors where interested student could go and buy. On no account should anybody insist that student must buy either handout, book or journal from them. Staff are to note that offence of this nature falls in the category of serious misconduct whose penalty is DISMISSAL from service. It is important to note that the defendants have the power to discipline any of their erring staff including the claimant from any act of misconduct and this cannot be questioned. As a result of this petition of the NCE III Students the 1st defendant suspended the study leave earlier granted the claimant to pursue his Ph.D Programme at Ukraine pending the conclusion on the ongoing disciplinary case him by a letter dated 27th October, 2011. It is on record that the claimant admitted selling directly to the student and that he had returned the money to the complainant. Selling directly without going through the proper channel is a violation of the college regulations on sale of handout, books or journals has directed by the circular of 23rd August, 2010. The claimant was invited to appear before the Senior Staff Promotion and Disciplinary Committee of the 1st defendant by a letter dated 17tth of November, 2011. He appeared before the committee and the committee came up with a report that found the claimant guilty of the offence and recommended that his appointment with the college be terminated. It is the contention of the claimant that it is the 2nd defendant that can withdraw his study leave approval, withheld his ETF grant and stoppage of his salary without first investigating the purported allegations to conclusion. He referred the court to Exhibit R 34 particularly paragraphs 6.6.2 and 6.6.3 of the regulations governing the conditions of service of staff in the Federal College of Education (Technical) Gusau. Contending further that the 2nd defendant who has the power to do all that has been dissolved before Exhibit R 9 that is “letter of withdrawal” of study leave was issued. As correctly argued by the defendants in their reply on points of law paragraphs 6.6.2 and 6.6.3 of the first defendant regulations governing the conditions of service Exhibit R 34 relates to steps to be taken against a staff who is been considered for suspension. In other words, the sections mentioned above are not relevant to the claimant’s case, and the 2nd defendant (the governing council) did not approve the study leave in the first instance, it was done by the Management of the 1st defendant who equally suspended the study leave pending the outcome of the disciplinary action. It is my stand that the 4th defendant has the power to suspend the study leave pending the outcome of the disciplinary action. This 1st leg is resolved in favour of the defendants. Furthermore, the claimant wants the court to declare that the activities of the defendants made it in possible for him to access the ETF grant as null and void and to direct them to facilitate the access of the same for him to pursue his Ph.D programme and that he is entitled to the ETF Intervention Fund for the sum of Fourteen Million Naira Only (N14M). A look at the study leave approval dated 19th October, 2011 only stated:- Your application to undergo a progeamme leading to the award of Ph.D Political Science at Odessa National University, Ukarine is with effect from 31/12/11 on full time/ETF Sponsorship. Furthermore, the letter of Federal College of Education to the Ambassador, Ukarine Embassy, Abuja dated 19/9/11 stated in paragraph 2 that:- He will be sponsored by Education Trust Fund, Abuja through the College in accordance with the Rules and Regulations guiding such sponsorship. From these two letters issued by the College, no references were made to any sum of money. From the fact available to the court the neither claimant nor the defendants produced any letter of approval from the Education Trust Fund indicating what the claimant is entitled to. The issue of N14M came up in the claimant’s final written address for the first time. It is trite that fact not pleaded and evidence given in respect goes to no issue. From the fact of this case, no proof has been shown to the court to substantiate this claim that he has been given a grant by the ETF to the tune of N14 Million Naira by showing or presenting to the court a copy of the award or grant given to him by the ETF. I would have thought that ETF should have been summoned to produce the grant if any. The Defendants position is that the college was yet to forward his name for approval to ETF when they received the complaint from the student. Flowing from above, it is clear that the claimant has not produced the ETF grant on which the court will make such declaration. As earlier stated the defendants have the right to discipline any erring staff of the college for any act of misconduct including the claimant. By the provisions of Section 131 (1) that whoever desires any court to give Judgment as to any legal right or liability dependant on the existence of facts which he asserts shall prove that those facts exist. The onus is on the claimant to provide credible evidence that the ETF has granted him the sum of Fourteen Million Naira Only (N14M) for his Ph. D Course at Ukarine this he has failed to do. For these reasons this issue is resolved against the claimant. Another relief being sought by the claimant is for a declaration that the withholding of the claimant’s salary from March, 2012 till date without any recommendation from any quarter and the denial of promotion, is unlawful, irregular, unwarranted, illegal, and therefore null and void. The claimant complained that his salary has been stopped from March, 2012 till date has contained in paragraph 23 of a statement of claim. The position of the defendants is that the claimant did not give the necessary particulars and that the claim is uncertain and vague and that the College had to suspend the payment or salaries to the claimant pending the out come of the disciplinary proceedings to be taken against the claimant for absconding from his duties. As regards this claim the defendants have not denied the stoppage of the claimant’s salary from the date he claimed the salary was stopped. They have also not given any reason why his salary was stopped except to contend that there is no evidence before the court as to the salary of the claimant. In my view, what the claimant is earning as salary is not in contention in other words, the salary of the claimant is not in contention what the claimant complaint about is that the salary was stopped or withheld by the defendants without any justification. The defendants have not placed before this court a report of any disciplinary panel or informed the court that a disciplinary panel was set up to investigate the absence of the claimant from duty. It is also not before this court that the claimant is under suspension or interdiction neither has the defendants taken any decision on the recommendation of the disciplinary committee, it is the order of this court therefore, that his salaries from 2012 till date be paid to the claimant forthwith. On the issue of promotion it is very clear that promotion is a privilege and not a right. The management has the prerogative to decide on whom to promote or not to promote notwithstanding that the claimant has been recommended for promotion by the Dean of his Faculty. In the complaint also the claimant is demanding for N33,128,452.00 (Thirty-three Million One Hundred and Twenty-eight Thousand Four and Fifty-two Naira) Only. This amount according to the claimant covers the following expenses: a. On 23/3/2012 I paid Two Hundred and Thirty-nine Thousand Naira (N239,000.00) to Batijay Travels Limited (Travel Agency) as deposit for his air ticket trip with Turkish Airline and was booked and when he was about to take off he was made to pay for his return ticket and it cumulatively amounted to Four Hundred and Eighty Thousand Naira (N480,000.00). Receipt with serial No. 1421 was issued for the first payment. b. On 5/10/2011 I paid One Hundred Thousand Naira (N100,000.00) to the Federal Ministry of Education via Sky Bank for Authentication of documents. c. On the 10/12/2011 I transferred 3000 UD Dollars (N486,000.00) to the Federal Ministry of Foreign Affairs via First Bank of Nigeria Plc for Translation of Documents from English Language to Russian Language. e. On 14/10/2011 I paid One Hundred and Fifty Thousand Naira (N150,000.00) to Niger Insurance as Overseas Travelers Insurance Policy. f. I paid the sum of 3,000 US Dollars (N486,000.00) to an agent for Legalization of Thirty-two (32) documents which was done at the Federal Ministry of Foreign Affairs. g. I paid the sum of Two Hundred Thousand Naira (N200,000.00) to the Federal Ministry of Health for Medical Certificate of Fitness and of FIIV/AIDS/Radiology. h. I paid 3000 US Dollars (486,000.00) as Visa Fee. 12. That paid 5000 US Dollars (810,000.00) and 2000 US Dollars (N324,000.00) as Registration and Accommodation Fees respectively. The clamant wants the defendants to be liable to pay this amounts mentioned above to him as expenses he incurred for his journey to Ukraine. The defendants argued that the court should dismissed the claim in that the defendants caused a letter of withdrawal of the study leave dated 27th October, 2011 that was served on the claimant who acknowledged the receipt of same in the dispatched book of the college. The claimant was invited to appear before the disciplinary committee to defend himself against the allegation made by the students. That the claimant cannot feigned ignorance of the disciplinary action and decided to travel to Ukraine without waiting for the outcome of the disciplinary committee. That the claimant did not informed the defendants of his movement before embarking on the journey to Ukraine. The claimant decided to gamble and take the risks by traveling out to Ukraine without settling the dispute with his employer. He did not arm himself with the ETF grant before traveling out, he did not get the defendants to reverse the withdrawal of the approval of his study leave before traveling out. In all these the claimant cannot claim any sum from the defendants as they were not aware that he traveled to Ukraine as his scholarship to study in Ukraine has been put on hold temporarily. He ought to have suspended all action and wait for the outcome of the disciplinary committee. A closer look at the date at some of the claims shows that payments were made after the letter of suspension of the study leave was issued to him. Lastly, on the claim of N3 Million Naira as general damages is not grantable because it is trite that an award of damages either special or general is not given as a matter of course but on sound and solid legal principles and not on speculation or sentiment. It is also not awarded at large or out of sympathy borne out of extraneous considerations but rather on legal evidence of probative value adduced for the establishment of an actionable wrong or injury. In this present suit the claimant has not been able to establish any wrong done to him by the defendants to unable the court award the sum N3 Million to him. He traveled out of the country without courtesy of informing his employer of his intention to do so. For the following reasons, the claims of the claimant succeed in part as he is only entitled to the arrears of his salaries form March, 2012 till date while other claims are dismissed. Judgment is entered accordingly. ________________________________ HON. JUSTICE O. A. SHOGBOLA JUDGE