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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA. BEFORE HIS LORDSHIP HON. JUSTICE M. N. ESOWE DATE: 10TH MARCH 2015 SUIT N0: NICN/ABJ/79/2013 BETWEEN: DR Paul O. Ajah (Provost Federal College of Agriculture, Ishiagu) AND 1. Prof. B.Y. ABUBAKAR (Executive secretary Agricultural Research Council of Nigeria) 2. Agricultural Research Council of Nigeria 3. The Minister of Agriculture and Rural Development. REPRESENTATIONS: Chief Solo Akuma SAN for the Claimant Shehu Aliyu Esq for the 1st & 2nd Defendants John Madaki, Esq for the 3rd Defendant James Ode Abah Esq for the 4th Defendant J U D G M E N T The Claimant commenced this Suit on the 09/04/2013 by way of Originating Summons. On the 18/7/2013, this Court ordered the Claimant to file Writ of Summons and parties to file and exchange pleadings. On the 26/6/2013 the Claimant filed the Writ of Summons, Statement of Claim, Witness Statement on Oath and copies of documents. The court’s processes aforesaid were duly served on the Defendants. The Claimant in paragraph 29 of the Statement of Claim claims against the 1st 2nd and 3rd Defendants jointly and severally as follows: 1. A Declaration that the 1st Defendant who is not an appropriate authority lacks the powers and competence to suspend the Claimant from office or acted ultra vires his powers under the Agricultural Research Council of Nigeria Act Cap A12 LFN, 2004 when he suspended the Claimant from office as the Provost of Federal College of Agriculture Ishiagu, Ebonyi State. 2. A Declaration that the suspension of the Claimant from office as the Provost of Federal College of Agriculture Ishiagu, Ebonyi State by a letter ref No. ARCN/H/06/S.3/1/T/97 dated 19th March, 2013 is unlawful, null and void and of no effect whatsoever. 3. An Order of this Honourable Court setting aside the purported suspension of the Claimant as contained in the 1st Defendant’s letter of suspension dated 19th March, 2013. 4. A Declaration that the Claimant is entitled to his salary and emoluments during the period of the purported suspension. 5. An Order of court compelling the 1st 2nd and 3rd Defendants to direct the payment and or pay the salary and emoluments of the Claimant at the rate of N950, 408.06 (Nine hundred and fifty thousand, four hundred and eight Naira six kobo) per month from March 2013 until when the suspension will be lifted or when the term of office of the Claimant will expire in December, 2013. 6. An Order of perpetual injunction restraining the Defendants, their staff, servants, agents and or privies in any manner whatsoever from interfering with the Claimant in the execution or discharge of his duties as the Provost of Federal College of Agriculture Ishiagu, Ebonyi State throughout or for the remaining part of the Claimant’s tenure as the Provost of the said college. Counsel pointed out that by an order of Court made on 18/7/2014; the 4th Defendant was joined in this Suit. He made it clear that the Claimant has nothing against the 4th Defendant. In the course of this suit, the following Exhibits were admitted in evidence:- Exhibit A1: Appointment as Provost, Federal College of Agriculture, Ishiagu. Exhibit A2: Request for clarification on the payment of two allowances not captured in the salaries and wages pay chart. Exhibit A3: Request for clarification on the payment of two allowances not captured in the salaries and wages pay chart. Exhibit A4: Staff resolutions on the stoppage of payment of two allowances not captured in the salary and wages pay chart Exhibit A5: Letter of Suspension Exhibit A6: RE: Letter of Suspension of Dr. Paul Ajah Exhibit A7: Statement of Account (Ajah Paul Onuh) Exhibit A8: Payment Slip Exhibit A9: A report by the fact finding team set up to examine a case of abuse of office, fraudulent diversion of public funds and misappropriation of public funds involving the provost of the Federal College of Agriculture, Ishiagu Exhibit B1: Request for Furniture Allowance Exhibit B2: Mandate schedule for payment to Ministries/Parastatals salary arrears 2009 car loan and furniture allowance to political office holders Exhibit B3: Implementation of Salaries and Allowances for Chief Executives of Parastatals as in the Amended Act of 2008 Exhibit B4: Implementation of Salaries and Allowances for Chief Executives of Parastatals as in the Amended Act of 2008 Exhibit B5: Ebonyi Tax Schedule Exhibit B6: Explanatory Memorandum Exhibit C1: Memo for consideration by Management Committee on the report of the fact finding team set up to examine a case of abuse of office, fraudulent diversion of public funds and misappropriation of public funds involving the Provost of the Federal College of Agriculture, Ishiagu Exhibit C2: Charge Exhibit C3: Letter of Suspension Exhibit C4: RE: Resolving the crisis of the Federal College of Agriculture, Ishiagu, Ebonyi State Exhibit C5: Information Exhibit C6: P.O.C. Salary, January, 2012 Exhibit C7: P.O.C. Salary, June, 2011 Exhibit C8: P.O.C. Salary, June, 2010 Exhibit C9: Request for Estacode Exhibit D1: Implementation of Salaries and Allowances for Chief Executives of Parastatals as in the Amended Act of 2008 Exhibit D2: Payment Voucher February, 2010 Exhibit D3: Payment Voucher September, 2009 Exhibit D4: Payment Voucher April, 2009 Exhibit D5: Variation on reversal of the salary of the Provost Exhibit E1: Investigation Report: RE: Abuse of Office, fraudulent diversion and misappropriation of public funds Exhibit E2: Charge Hearing in this case commenced on the 11th November 2013. The Claimant gave evidence in person. The 1st and 2nd Defendants called one witness Mr. Thomas Ado Banta (DW1). The 3rd Defendant called Mr. Godfrey Itua Aikhoje (DW2) as their sole witness while the 4th Defendant called Comrade Bamidele Adekunle (DW3) as her witness in this suit. BRIEF FACTS OF THIS CASE. The case of the Claimant is that the Claimant was the Provost of Federal College of Agriculture, Ishiagu whose tenure was for 5 (five) years with effect from 1/1/2009 to 31/12/2013.(Exhibit A1.) By a letter dated 19/3/2013 (Exhibit A5,) the Claimant’s term of office was purportedly suspended. Exhibit A5 was signed by the 1st Defendant who allegedly acted under the instruction of the 3rd Defendant by virtue of Exhibit D3. That Exhibit A5 was predicated on the outcome of EFCC Report of investigation dated 30/1/2013. Exhibit E1 and ARCN Visitation Panel’s Report dated 1st — 3rd August, 2012 Exhibits A9 and C1. It was not disputed by DW1 and DW2 that investigation by EFCC and ARCN Visitation Panel had long been concluded before the purported suspension of the Claimant. The dates on Exhibits E1, A9 and C1 make this fact incontrovertible when viewed alongside Exhibit A5 dated 19/3/13. To the Claimant, the only deduction from the foregoing is that the suspension of the Claimant was not done to carry out any investigation, as no other investigation took place after the Claimant’s purported suspension. Following from above, the Claimant was dissatisfied with the suspension and by a letter through his Counsel dated 26/3/2013 (Exhibit A6) requested the 1st Defendant to retract the letter of suspension. Exhibit A6 was ignored by the 1st and 2nd Defendants hence this suit. Aside from the Originating summons filed initially, there were other Motions on Notice by the Parties, and these are listed hereunder: 1) Motion on Notice for Interlocutory Injunction by Claimant 2) Notice of Preliminary Objection by 3rd Defendant 3) Notice of Preliminary Objection by 1st and 2nd Defendant 4) Motion on Notice joining the Applicant as the 4th Defendant in this suit. A. Motion for Interlocutory Injunction, On the 10th of May, the Claimant filed a Motion on Notice. The Motion prayed the court for the following: (i) An Order of Interlocutory Injunction, restraining the Defendants, their staff, agents and or privies from interfering in any manner whatsoever with any of the benefits that accrue to the Claimant/Applicant by virtue of his position as Provost of the Federal College of Agriculture Ishiagu, Ebonyi State pending the hearing and determination of this Suit. (ii) An Order of this Honourable Court for mandatory injunction directing the Defendants/Respondents to pay and continue paying the salary of the Claimant pending the hearing and determination of this Suit. (iii) And for such further order or other orders as the Honourable Court may deem fit to make in the circumstances. The motion is supported by a 14 paragraphs affidavit and a written address which counsel adopted as his argument in the Motion He cited authorities to support his points. The Claimant and the 1st, 2nd and 3rd is Motion, Defendants joined issues on this Motion. But for the reason that the facts in the Motion on Notice for Injunction are intertwined with the fats of the substantive case, the Court suspended the ruling which will be subsumed by the Judgment. B. Notice of Preliminary Objection. On the 16th July 2013, the 3rd Defendant filed a Notice of Preliminary Objection dated 17th July 2013. The grounds being: a. The suit as commenced is not competent to be commenced by Originating Summons. b. The Court lacks jurisdiction to entertain this Suit. On the 17th July, the 1st and 2nd Defendants also filed a similar Notice of Preliminary Objection also praying the Court for an: “Order striking out this case for being incompetent; and for such further Order(s) as the Court may deem fit to make in the circumstance. The Court went through the Applications of the 1st and 2nd Defendants/Respondents on one side and that of the 3rd Deft/Resp. on the other. The Court noted that both Applications are predicated on the same ground of objection, that is to say that this suit, being based on employment should not have been commenced by Originating Summons. Both counsels have, in their written submission given reasons for this contention. The learned SAN, on behalf of the Claimant/Respondent on his own side waived his right to written reaction to these two Applications, The Court, after a careful consideration of all these, upheld the P.O of the Applicants that the case before this Court is better commenced by other modes than by Originating Summons, On the 18/7/2013, this Court ordered the Claimant to file Writ of Summons and parties to file and exchange pleadings following which order the Claimant filed his WRIT on the 26/6/2013 C. MOTION FOR JOINDER The 4th Respondent also filed a Motion for Joinder of the 4th Defendant to this suit Introduction In support of the Motion is a 14 paragraphed affidavit. There was a written address in support of the Motion on Notice dated the 17th day of July, 2013. Relevant Facts To counsel, the 4th Defendant/Applicant, is one of the Trade Unions in Federal College of Agriculture Ishiagu where the Claimant in the suit herein was working. As stated by the claimant, members of the Applicant form part of the Joint Staff Union Forum petitioned the Claimant to the Economic and Financial Crimes Commission. That an investigation report dated 30th January 2013 addressed to the 1st and 2nd Defendant from the Economic and Financial Crimes Commission as a result of the petition of members of the 4th Defendant Applicant clearly stated that the Claimant herein has a case to answer. The Court went through the Applications of the 4 Deft/Applicant and noted the salient points in his application and granted it. That the 4th Defendant was joined in this suit without any objection. FINAL WRITTEN ADDRESS OF THE 1ST and 2nd DEFENDANTS ISSUES FOR DETERMINATION To counsel for the 1st and 2nd Defendants, the following issues were formulated for the proper determination of this Honourable Court in this case as follows: 1. Whether the 1st Defendant suspended the Claimant from office as the Provost of the College of Agriculture Ishiagu, Ebonyi State. 2 Whether the 1st and 2nd Defendants are responsible of paying or not paying the Claimant’s salary. 3. Whether the suspension of the Claimant as the provost of College of Agriculture Ishiagu was right in compliance with the Law. ISSUE 1 ARGUMENT “Whether the 1st Defendant suspended the Claimant from office as the Provost of the College of Agriculture Ishiagu, Ebonyi State”. Counsel submitted that the 1st Defendant did not suspend the Claimant from office as the Provost of College of Agriculture Ishiagu. That the 1st Defendant as the Executive Secretary of the 2nd Defendant only conveyed the approval of the suspension letter to the Claimant, referring the court to paragraph 9 of the 1st and 2nd Defendants’ Statement of Defence. To him, the 1st Defendant is the appropriate authority to convey any message to the Claimant as the Provost of College of Agriculture Ishiagu and the 3rd Defendant issued a directive on the 1st and 2nd Defendants to serve the Claimant with the suspension letter, referring the Court to paragraph 10 of the 1st and 2nd Defendants’ Statement of Defence. It was further submitted that the Claimant in paragraphs 7, 8, 9 and 10 of the Claimant’s Statement on Oath clearly stated that he receives his directives on issues that relate to the administration of the College of Agriculture Ishiagu from the 1st and 2nd Defendants. That the Claimant under cross examination admitted that he is answerable to the 1st and 2nd Defendants when there is any substantive information from the 3rd Defendant, and that the 1st Defendant did not suspend him-the Claimant- from office as the Provost of the College of Agriculture Ishiagu, but rather conveyed the approval of the suspension by the 3rd Defendant as a supervising and co-coordinating agency to the Provost of the College of Agriculture Ishiagu. Counsel submitted, that the 3rd Defendant stated clearly in paragraphs 10 and 11 of the Defendant’s statement of Defence that he approved the suspension of the Claimant and that he directed the issuance of the suspension letter to the Claimant. ISSUE 2 “Whether the 1st and 2nd Defendants are responsible for paying or not paying the Claimant’s salary.” According to counsel, there is no time the 1st and 2nd Defendants’ exercised the responsibility of paying salary to the Claimant; and no Law conferred that power on the 1st and 2nd Defendants. It is the submission of the 1st and 2nd Defendants’ that the Claimant admitted in cross examination that he was not a staff of the 2nd Defendant; therefore, he was receiving his salary from Finance Ministry. Furthermore, that the Claimant stated clearly in paragraph 25 of his Statement on Oath that he received his salary through e-payment System by the Federal Government of Nigeria but not by or through the 1st and 2nd Defendants, referring the Court to the above mentioned paragraph. Counsel submitted that the law is clear that, under the Public Service Rules, when an officer is suspended, he ceases to enjoy emoluments. This is provided for under Rules 030406 of the Public Service Rules published in the Federal Republic of Nigeria Official Gazette of 25th August 2009 No. 57 Vol. 96. Issue 3 “Whether the suspension of the Claimant as the provost of College of Agriculture Ishiagu was right in compliance with the Law “ Counsel submitted, for the 1st and 2nd Defendants on Issue 3 that the suspension of the Claimant from office as the Provost of College of Agriculture Ishiagu was right in compliance with the relevant Laws. He equally submitted that the Claimant was suspended from office as the Provost of College of Agriculture Ishiagu by properly following all laid down procedure for the suspension in the Public Service Rules published in the Federal Republic of Nigeria official gazette of 25th August 2009 No. 57 Vol. 96 as follows: Step 1: Issuing query as provided under Rule 030302 Step II: Reporting misconduct as provided under Rule 030304 Step III: Suspensions as provided under Rule 030406 Counsel further submitted that the Claimant was issued with query and did not exculpate himself therefore deserved some punishment as provided under Rule 030302 and in which case Rule 030304 was also applied on him by reporting his misconduct which resulted to his suspension in accordance with Rule 030406 CONCLUSION The 1st and 2nd Defendants urged this Honourable Court to hold that: 1. The suspension of the Claimant from office as the provost of the College of Agriculture Ishiagu via letter Ref. No. ARCN/H/06/S.3/I/T/97 dated 19th March 2013 (which is before the Court) was the directive/approval of the Honourable Minister of Agriculture and Rural Development. i.e. 3rd Defendant. 2. The suspension of the Claimant from office as the Provost of the College of Agriculture Ishiagu by letter Ref. No. ARCN/H/06/S.3/I/T/97 dated 19th March 2013 by the 3rd Defendant was in order in exercise of his full powers as the Honourable Minister and in total compliance with the standard procedure laid down in the Public Service Rules. 3. The suspension by the Defendant which was dully conveyed to the Claimant through the 1st and 2nd Defendants was done in accordance with the Law. 4. This suit is a subtle attempt by the Claimant to mislead this Honourable Court into making Orders to nullify the act of the executive arm of the Federal Government in which the Claimant has not disclosed any of his legal right that has been breached. 5. The Claimant is not entitled to the enjoyment of his salary and emolument from the effective date of his suspension. 6. The 1st and 2nd Defendants are not responsible for the payment or non-payment of the salary of the Claimant and they have never in any time exercised the role of paying or non paying salary to the Claimant as this is not part of their schedule. 3rd DEFENDANT’S FINAL WRITTEN ADDRESS INTRODUCTION This final written address is settled on behalf of the 3rd Defendant in the suit herein. SUMMARY OF FACTS It is the case of the Claimant that the joint staff union cooked up an unauthorized investigation report from the Enugu Zonal office of the Economic and Financial Crimes Commission and forwarded same to the 1st Defendant. By a letter with REF No ARCN/H/06/S.3/1/T/97 dated 19th March 2013, the 1st Defendant suspended the Claimant from office as the provost of the Federal College of Agriculture, Ishiagu. The Claimant has contended that the 1st Defendant is not authorized by the 3rd Defendant to issue the suspension letter and that no decision has been given by the Defendant for suspending the Claimant. The Claimant contends that the 1st Defendant is not the appropriate person to issue the suspension letter to him. It is the case of the 3rd Defendant that it expressly approved the issuance of the letter suspending the Claimant based on the EFCC and visitation reports indicting the Claimant. The 3rd Defendant’s case is to the effect that it has the powers under the Agricultural Research Council Act to direct any of its officers to carryout lawful instructions. The 3rd Defendant contended that the subsequent arraignment of the Claimant in charge No HAB/ICPC/IC/013 and Charge No FHC/AC/36C/2013 further strengthens the reason for the suspension and stated that due process was strictly observed. In the light of the acts of omissions and commission of the Claimant, the 3rd Defendant stated that it suffered financial loss and counter claimed the sum of N15, 401,055.00 from the Claimant. 4th DEFENDANTS CASE The 4th defendant filed their statement of Defence dated 19th day of September 2013 on the 20th of September 2013. The 4th Defendant led evidence to the fact that it is one of the three Trade Unions in Federal College of Agriculture Ishiagu where the Claimant was working until events leading to this suit. It is the case of the 4th Defendant that the Claimant was appointed as the Provost of Federal College of Agriculture Ishiagu to provide innovative leadership to the College in view of the Federal Go Government strife towards achieving sustainable food security for the country The 4th Defendant contended that the Claimant abused his office by his failure, neglect and/or refusal to remit/pay appropriate tax by paying the sum N2, 500.00 which is less than what other of his colleagues paid to the Government as his colleagues usually pay between N150, 000.00 and N180, 000.00. The 4th Defendant led evidence to the fact that Claimant received a monthly salary above N950, 408:06k, as the Claimant was paid One Million Four Hundred Thousand Naira N1, 400,000:00 as monthly salary. Furthermore, the Claimant knowingly collected estacode allowance above what he is entitled by collecting or making an exchange of One US Dollars for N180.00 as against the above sum by the Central Bank of Nigeria. The 4th Defendant stated how the Claimant also facilitated the employment of his wife into the College and placed her in an unknown or non-existing cadre in the schemes of service at the College. It was due to the abuse of office by the Claimant coupled with such further allegations that led to petitions which were written by various interest groups in the College including the 4th Defendant to the 1st and 3rd Defendants, Economic and Financial Crime Commission (EFCC) and Independent Corrupt Practices Commission (ICPC). The allegations against the Claimant were investigated by the 1st and 3rd Defendants by setting up Investigative Panel while the EFCC and ICPC also carried out their separate investigation respectively and the allegations made against the Claimant were found to be true as same was sustained. The EFCC and ICPC respectively charged the Claimant and presently prosecuting the Claimant in Ebonyi State for maladministration and various financial offences committed by the Claimant while in office as the Provost of Federal College of Agriculture Ishiagu. It is the case of the 4th Defendant that Claimant is required to refund all the sums of money illegally collected from the Federal Government Nigeria. The 4th defendant contends that Claimant who is standing trial at Ebonyi State for maladministration of the Federal College of Agriculture Ishiagu was justly removed from office and should not be allowed to administer the College any more. Furthermore the Claimant also arrested the acting Provost of the Federal College of Agriculture Ishiagu without any justification after filing this suit without recourse to the 3rd Defendant to find out if indeed the suspension in issue in this suit was issued to him at his directive. The 3rd Defendant gave approval to the 1st Defendant to issue the Claimant suspension letter pending determination of the criminal trial of the Claimant at Ebonyi State. Under the Civil Service Rules the Claimant is not entitled to be paid his salary and other entitlements while on suspension as provided in the Public Service Rules of the Federation. The suspension of the Claimant as Provost Federal College of Agriculture Ishiagu was proper as the 3rd Defendant requested 1st the Defendant to communicate the suspension of the claimant to him. The 4th Defendant vehemently affirms to the fact that the Claimant is not entitled to any of his claims and same should be dismissed for not disclosing a reasonable cause of action, frivolous and vexatious. ISSUES FOR DETERMINATION 4th Defendant raised the following issues for determination to wit: i. Whether by the combined interpretation of the provisions of Agricultural Research Council of Nigeria Act Cap A12 LEN 2004 and the provisions of Public Service Rules 030406 (2008 Edition) the Claimant can be suspended by the 3rd Defendant. ii. Whether by the surrounding facts and circumstances of this case the Claimant is entitled to the grant of the reliefs been sought ARGUMENT IN SUPPORT OF ISSUES “Whether by the combined interpretation of the provisions of Agricultural Research Council of Nigeria Act Cap A12 LFN 2004 and the provisions of Public Service Rules 030406 (2008 Edition) the Claimant can be suspended by the 3rd Defendant.” It is counsel’s submission that the Claimant is not entitled to the reliefs being sought as the 3rd Defendant has categorically stated that it expressly approved the letter suspending the Claimant based on the EFCC and visitation reports indicating the Claimant. He referred this Court to paragraph 10 of the 3rd Defendant’s statement of facts as well as paragraph 7 of the witness statement on oath of Mr. Godfrey Itua Aikhoje. This evidence has not been anyway challenged by the Claimant. The law gives a court the license to act and rely on unchallenged evidence to arrive at a decision. He referred to the case YUSUF V STATE(2012) 27 W.R.N AT 145 Pp PG 180 LINES 5-10 see also the case of TANKO V STATE (2009) 14 WRN 1, 4 NWLR PT 1131 230 and EBEINWE V STATE (2011)7 NWLR (PT.1246) 402 Furthermore, the settled position of law is that affidavit evidence that is not denied is deemed admitted, and being unchallenged evidence, the court is not only to accept, but must act on it. See also NSPRI V BIR KWARA STATE (2014) 15 W.R.N AT 81 PP PG 112-113 LINES 45-10. See also UZODINMA V IZUNASO (2011) 5 (PT 1) MJSC 27. Counsel further submitted that the 3rd Defendant has the statutory and constitutional power to approve and direct the 1st and 2nd Defendant to convey the decision to suspend the Claimant whose tenure in office was marred with financial irregularities. He referred this Court to Section 16 of the Agricultural Research Council Act Cap A12 LFN 2004. The said Section is hereby reproduced for the sake of clarity: “Directives by the Minister Subject to this Act, the Minister may give to the Council directives of a general nature or relating generally to particular matters, but not to any particular individual or case with regard to performance by the Council of its functions under this Act and it shall be the duty of the Council to comply with the directives.” Furthermore it is the 1st Defendant who is the Executive Secretary of Agricultural Research Council of Nigeria and who has the duty under the Agricultural Research Council of Nigeria Act Cap A12 LEN 2004 to convey the directives of the Minister of Agriculture and Rural Development to the Claimant as regards to issues pertaining to his suspension from office. This position is fortified by the fact that the Executive Secretary is responsible for the administration of the Secretariat of the Council as well as issues that pertain to the general direction and control of other employees of the council which the Claimant is part of. Counsel referred this Court to Section 6(3) of the Agricultural Research Council of Nigeria Act Cap A12 LFN 2004 which clearly stipulates the powers of the Executive Secretary. The said section is hereby reproduced for the sake of clarity. By Section 6(3) the Executive Secretary shall, subject to the general direction of the Council, be responsible for- (a) The day-to-day administration of the Council. (b) Keeping the books and proper records of the proceedings of the Council. (c) The Administration of the Secretariat of the Council, and (d) The General direction and control of other employees of the Council. Counsel submitted that the law is trite that the function of a Court, even at the apex level is to search for the intention of the lawmaker in the interpretation of a statute. Where a statute is clear and unambiguous, the court in the exercise of its interpretative jurisdiction must stop where the statute stops. In other words, a court of law has no jurisdiction to rewrite a statute to suit the purpose of one of the parties or both parties. The moment a court of law intends to rewrite a statute or really rewrites a statute, the intention of the law maker is thrown overboard and the court changes faces with the lawmaker. He referred to the case of ADEDAYO V PDP (2014) 4 WRN AT 1 Pp PG 87 LINES 30-40. See also the cases of ARAKA V EGBUE, (2003) FWLR (PT 175) 507 He urged this Court to be guided by the authorities cited above and hold the suspension of the Claimant in the suit herein was legally carried out from the literal interpretation of the provisions of the Agricultural Research Council of Nigeria Act Cap A12 LFN 2004. To counsel, further from the combined interpretation of Section 6(3) and Section 16 of the Agricultural Research Council of Nigeria Act Cap A12 LFN 2004, the suspension of the Claimant by a letter dated 19th March 2013 with Ref No: ARCN/H/06/S.3/I/T/97 enjoys the presumption of regularity as provided in Section 168(1) and (2) of the Evidence Act 2011. Section 168(1) and (2) of the Evidence Act clearly provides thus: (1) When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with. (2) When it is shown that a person acted in a public capacity, it is presumed that he had been duly appointed and was entitled so to act. Presumption of regularity of official acts performed by public bodies has been held by the apex court, to be a defence in favour of official acts performed by public bodies. It is hinged on a Latin maxim “omnia Presumuntur rite et solemniter esse acta donec probetur in contraruim” meaning things are presumed to have been legitimately done, until the contrary is proved. He referred to ONI V F.R.N (2013) 23 W.R.N AT 146 PP G 165 LINES 40-45. Counsel urged this Court to be guided by the authorities cited above. Furthermore he submitted that the suspension of the claimant was in line with rules in suspension as entrenched in the Public Service Rules. He referred this Court to Public Service Rules 030406 (2008 Edition). The said rule is hereby reproduced for the sake of clarity: Suspension should not be used as a synonym for interdiction. It shall apply where a prima fade case, the nature of which is serious, has been established against an officer and it is considered necessary in public interest that he/she should forthwith be prohibited from carrying out his/her duties. pending investigation into the misconduct, the Federal Civil Service Commission or the Permanent Secretary / Head of Extra- Ministerial Office (If within his/her delegated powers) shall forthwith suspend him/her from the exercise of the powers and functions of his/her office from the enjoyment of his / her emolument. He submitted that the suspension of the Claimant was valid as same was hinged on the clear provision of Public Service Rules 030406 (2008 Edition). The law is trite that Public Service Rules carry constitutional force. He urged the Court to resolve this issue and hold that that the suspension of the claimant was valid in all respect. ISSUE 2 “Whether by the surrounding facts and circumstances of this case the Claimant is entitled to the grant of the reliefs been sought” Counsel submitted that the Claimant has not made out a case to enable this Court grant the reliefs sought in his statement of facts. Referring to the case of AJIBARE V AKOMOLAFE (2012) 10 W.R.N AT 62 pp PG 99 LINES 25-30. He referred also to the cases of DANTATA V MOHAMMED (2000) 3 WRN 32, The law is that evidence must be founded on pleadings; therefore any evidence led out of pleadings goes to no issue. See the Case of ADEMESO V OKORO (2005) 30 WRN 178 AT 191 LINES 10-25. He submitted that there is no evidence upon which this Court can grant the reliefs sought by the Claimant and he urged this Court to so hold. Counsel further submitted that the Claimants case succeeds on its strength. Referring to KODILINYE V ODU (1935) WACA 336 at 337 He submitted in same breath that the court holds it a duty to dismiss this suit as lacking in merit once a party fails to prove each and every allegation of fact in support of his case as can be seen in the suit herein. NICHOLAS OLUYEMI AND ANOR V AJEWOLE EDWARD ASWOLU AND ORS (2008) LPELR CA/IL/HA/26/07 He submitted that assuming without conceding that the Defendants admit the facts of the Claimant, the law still further places a legal burden on the Claimant to establish facts to merit the grant of declaratory reliefs. To counsel the Claimant has failed to convince this Court that how he is entitled to the reliefs being sought. CONCLUSION He urged this Court to dismiss the case of the Claimant herein in its entirety as same is unmeritorious frivolous and precious waste of litigation time with substantial cost. CLAIMANT’S WRITTEN ADDRESS PART A ISSUES FOR DETERMINATION In the Claimant’s view the following issues call for determination in this suit: 1. Whether the suspension of the Claimant is unlawful, null and void in that: (a) The procedure under the Public Service Rules 2009 was not followed; (b) The Claimant was suspended after investigations into any alleged impropriety have been concluded; (c) The suspension was not with the approval of the President of the Federal Republic of Nigeria. 2. Whether the Claimant is entitled to salary during the period of suspension and or from when the suspension is declared unlawful, null and void. ARGUMENT ISSUE 1: Whether the suspension of the Claimant is unlawful, null and void in that: (a) The procedure under the Public Service Rules 2009 was not followed. (b) The Claimant was suspended after investigations into any alleged impropriety have been concluded. (c) The suspension was not with the approval of the President of the Federal Republic of Nigeria FAILURE TO FOLLOW PSR Exhibit A5 the letter of suspension provides in part: “That the 3rd Defendant has approved your suspension in line with PSR 030406 for your flagrant disregard of extant financial and administrative rules in the college”. Counsel submitted that before a public officer is suspended the procedure set out under PSR 030302 -030306 shall be followed. PSR 030403 provides: “Disciplinary procedure for serious misconduct shall be in accordance with Rules 030302 to 030306”. It may be asked, did the 3rd Defendants follow the disciplinary procedure laid down in Rules 030302 - 303306? Counsel answered it in the negative. He illustrated these failures by the 1st — 3rd Defendants hereunder. Rule 30302 requires issuing of query to an officer who has committed any misconduct. In the instant case, no query was issued to the Claimant by either 1st or 3rd Defendants. None was tendered before this court by the 2nd and 3rd Defendants. It is submitted that Rule 030302 was not complied with. Rule 030303 made provision that where the Government set up a Tribunal of Inquiry which makes recommendations of disciplinary nature on an officer, the Federal Civil Service Commission shall not act on such recommendations until it has called upon the affected officer to reply to the allegations made against him by the tribunal of inquiry. It is only when the officers neglects or refuses to reply to the allegations within a reasonable time or at all that the Federal Civil Service or its agent shall proceed to accept and enforce the recommendation of the Tribunal of Inquiry and take such disciplinary action against the office as it shall deem appropriate. Counsel submitted that in the instant case, no Tribunal of Inquiry was set up by the 1st — 3rd Defendants to investigate the allegations against the Claimant. There was ARCN Visitation Report in Exhibits A9 and C1. Even if Exhibits A9 and C1 are regarded as Tribunal of Inquiry recommendations, which is not conceded, the said Exhibits A9 and C1 were not forwarded to the Federal Civil Service Commission nor was the Claimant called upon either by the FCSC or the 1st — 3rd Defendants to reply to the allegations made against him in Exhibits A9 and C1. Strangely, the 1st and 3rd Defendants without following the procedure under Rules 030303 relied on Exhibit C1 to suspend the Claimant as per Exhibit A5. He referred also to the cross-examination of DW2 of 13/5/2014 where he admitted that Exhibits C1 and E1 were not sent to Federal Civil Service Commission and submitted that Rule 030303 was also not complied with. It is important to mention that Rules 030304 and 030305 were complied in breach. Rules 030304 provides for interdiction where necessary and enjoined the Permanent Secretary or head of Extra Ministerial Office to take action in accordance with Rules 030302 — 030306 and at appropriate point in the investigation to suspend the officer in accordance with Rule 030405. He submitted that Rules 030304 and 030305 were not followed. It is submitted that disciplinary procedure under the Public Service Rules (PSR) as enumerated above is a mandatory procedure that must be complied with before any disciplinary action is taken against any officer and where the Public Service Rules are not followed the court will not hesitate to set aside the sanction imposed on any officer, referring to F.C.S.C. v. Laoye (1989) 2 NWLR pt. 106 p. 652. In Okereke v. Yar’adua (2008) 12 NWLR pt. 1100 p. 95 at 127 the Supreme Court held: “Where legislation lays down a procedure for doing a thing there should be no other method of doing it”. In the instant case, the procedures laid out in Rules 030302 - 030306 PSR were not followed before the Claimant was suspended. It is submitted that the Claimant’s suspension is therefore vitiated by the failure of the 1st - 3rd Defendants to follow the laid down procedure in the Public Service Rules. It is submitted that the 1st - 3rd Defendants cannot be heard to say at this stage that the Public Service Rules is not applicable to the Claimant when they relied on same to suspend him. Referring to R010101. The Defendants are not allowed to blow hot and cold in one breath or to approbate and reprobate at the same time. He urged the court to set aside the suspension. SUSPENSION AFTER CONCLUSION OF INVESTIGATION Rules 030406 of the Public Service Rules provide: “Suspension should not be used as a synonym for interdiction. It shall apply where a prima facie case the nature of which is serious, has been established against an officer and it is considered necessary in the publicly interest that he/she should forthwith be prohibited from carrying on his/her duties pending investigation into the misconduct, the Federal Civil Services Commission or the Permanent Secretary/Head of Extra Ministerial Office (if within his/her or delegated powers) shall forthwith suspend him or her from the exercise of the powers and function of his or her office and from the enjoyment of his/her emolument”. He submitted that suspension shall apply where a prima facie case is established against an officer and it is considered necessary in public interest that the officer should be prohibited from carrying out his duties pending investigation into the misconduct. Put in another way, an officer is suspended to enable investigation be conducted into any alleged misconduct. He also placed reliance in Rule 030304 (d) which provides: “At the appropriate point in the investigation, the officer may be suspended in accordance with Rule 030405. That DW2 admitted this much when in answer to a question under cross-examination said: “Suspension applies where a prima facie case of a serious nature is established against an officer and it is concern that in the public interest, the officer should be prohibited from carrying out his action pending when investigation is concluded”. In the instant case, by virtue of Exhibit A5 the letter of suspension, the Claimant’s suspension was based on EFCC Report of Investigation (Exhibit E1) and ARCN Visitation Panels Report (Exhibit C1) respectively. Exhibit E1 is dated 20/1/2013 while Exhibit C1 is dated - 3rd August, 2012. Both Reports preceded Exhibit A5 dated 19/3/2013. And after Exhibits E1 and C1 no other investigations took place until the Claimant was arraigned in court. See Exhibits E2 dated 18/4/2014 and C5 dated 15/2/2013 and filed on 22/2/2013. The DW1, under cross-examination had this to say: “There was an EFCC Report and the ARCN investigation that gave rise to Exhibit A/(sic Exhibit A5). The two documents were products of investigation. These were concluded before C3 (Letter of suspension) was released”. On his own part DW2 answered under cross-examination thus: “I know that the Claimant has been charged to court. It was as a result of the conclusion of the investigation by EFCC and ICPC when I wrote Exhibit C4 of 18/3/3013, investigation of EFCC and ICPC had been concluded. See Exhibit C1. The fact including report had been given when I made Exhibit C4”. It is submitted with respect from the foregoing that: (i) There was no further investigation after the Claimant was suspended before the Claimant was arraigned in court as per Exhibits E2 and C5 respectively. (ii) Every investigation that led to the arraignment of the Claimant had been concluded. See Exhibits E1 and C1. (iii) The Claimant was suspended after the investigations into the alleged misconduct have been concluded. (iv) The Claimant was not actually suspended pending investigation. See also Claimant’s Witness Statement sworn on 30/9/2013 paragraph 3. And paragraph 5 of another Witness Statement deposed to on 30/9/2013. It is submitted that an officer is not suspended after investigations into the alleged misconduct have been concluded. It is therefore, improper and contrary to the intendment and spirit of Rule 030406 of the PSR to have suspended the Claimant when investigations have been concluded. Counsel submitted and urged the Court to hold that the Claimant’s suspension was unlawful, in breach of Rule 030406 and therefore null and void. He urged the court to set aside the Claimant’s suspension as the Claimant was unlawfully suspended for reasons other than to investigate any alleged misconduct. SUSPENSION WITHOUT APPROVAL OF THE PRESIDENT The Claimant’s appointment letter Exhibit A1 dated 15/12/2008 and signed by the 3rd Defendant’s predecessor reads in part: “I write to convey Mr. President’s approval for your appointment as Provost, Federal College of Agriculture, Ishiagu in a non renewable term of 5 years with effect from 1st January, 2009”. Counsel submitted that by virtue of Exhibit A1, the President of the Federal Republic of Nigeria appointed the Claimant as the Provost of the Federal College of Agriculture, Ishiagu. DW2 who is the witness to the 3rd Defendant admitted this fact under cross-examination in these words: “Exhibit A1 (read). It was signed by Honourable Minister, Federal Ministry of Agriculture. The Minister recommends appointing a Provost to the College of Agriculture. The appointment is of Mr. President; if the President appoints someone to a post the Minister can recommend for his removal”. See also the response of DW1 under cross- examination. It is submitted that the 3rd Defendant acted ultra vires his powers when by virtue of Exhibit C4 he directed the 1st Defendant to suspend the Claimant. The Claimant, it is submitted; being an appointee of the President can only be suspended with the approval of the President. In the instant case, there is nothing to show that the 3rd Defendant made recommendation to the President for the suspension of the Claimant. The 3rd Defendant invariably usurped the powers of the President and wrongfully directed the suspension of the Claimant. To counsel, the 3rd Defendant cannot fall back on Section 16 of the Agricultural Research Council of Nigeria Act Cap A12 LFN 2004 to justify his actions in this matter. Section 16 of ARCN Act provides: “Subject to this Act, the Minister may give to the council directives of a general nature or relating generally to particular matters but not to any particular individual or case with regards to performance by the council of its functions under this Act and it shall be the duty of the council to comply with the directives”. It is submitted that from the provisions of the above Act, the 3rd Defendant cannot give any valid approval or directive on matters relating to any particular individual or case and consequent upon this Exhibit C4 is of no moment. He further submitted that Exhibit A5 was issued without authority and therefore invalid. Counsel submitted that without the concurrence and approval of the President, the 1st 3rd Defendants lack the competence to suspend the Claimant. It is submitted 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 do the assignment before it will receive the imprimatur of the law. See Emuze v. VC Uniben (2003) 10 NWLR pt. 828 p. 378. The Defendants have tried to justify the suspension wrongfully slammed on the Claimant on the ground that the Claimant was arraigned in court. Counsel submitted that by virtue of the provisions of PSR 030406, suspension is not imposed to enable the authorities, that is, 1st - 3rd Defendants to arraign the Claimant but to cause investigation into any misconduct. It is submitted on the other hand, arraignment of the Claimant immediately after suspension will not make the suspension justifiable under the extant PSR upon which the suspension was predicated. The courts have always struck down administrative actions carried out in contravention of the Civil Service Rules. In Shitta-Bey v. Federal Public Service Commission (1981) NSCC 19 at page 29 the Supreme Court per Idigbe JSC held: “The Civil Service Rules of the Federal Public Service govern conditions of service of Federal Public Servants and they are made pursuant to the powers conferred on the respondent by virtue of the Constitutional provisions in the 1963 Constitution; and the rules relevant to these proceedings were made in 1974, pursuant to the provisions of Section 160 (1) of the 1963 Constitution, Act No. 20 of 1963. These Rules, therefore, in my view, have Constitutional force and they invest the public servant over whom they prevail a legal status; a status which makes his relationship with the respondent and the government although, one of master and servant certainly beyond the ordinary or mere master and servant relationship. Under these Rules (i.e. The 1974 Civil Service Rules which, as I already pointed out, have statutory force and, therefore, ought to be “judicially noticed”), paragraphs 04107 to 04121 provide the procedure which must be adopted in the removal or retirement from service, as well as the general disciplining, of public servants in the established pensionable cadre.” See also Okocha v. C.S.C. Edo State (2004) 3 NWLR pt. 861 p. 494. To counsel, it tantamount to official impudence for the President to make an appointment and a Minister without approval to suspend the appointee from office. He therefore urged the court to hold that the Claimant’s suspension is unlawful, null and void. He prayed the court to set aside the suspension letter Exhibit A5. ISSUE 2: “Whether the Claimant is entitled to salary during the period of suspension and or from when declared unlawful null and void.” In Akinyanju v. University of Ilorin & Others (2005) 7 NWLR pt. 923 p. 87 at 120 paragraph A — B. It was held: “Suspension only means to defer, lay aside or hold in abeyance. It means to halt midway but certainly not to bring to an end or terminate” In Long v. FBN Plc (2010) 6 NWLR pt. 1189 p. 1 the Supreme Court held: “Suspension is not a demotion and does not entail a diminution of rank, office or position. It cannot import diminution of the rights of the employee given to him upon the law. An employer suspending his employee from work only means the suspension of the employee from the performance of the ordinary duties assigned to him by virtue of his office”. In the letter of suspension, Exhibit A5 it was not expressly stated that the Claimant will not be entitled to his emolument during the period of the suspension. He submitted that same cannot be implied. It was the evidence of the Claimant that he has not been paid his salary and emolument since March, 2013. (See paragraphs 23 — 24 of the Claimant’s Witness Statement on Oath deposed to on 26/7/2013). The said piece of evidence was not controverted by the Defendants. The 1st — 3rd Defendants have relied on PSR 030406 in not paying the Claimant his salary during the period of the suspension. He had quoted PSR 030406 in paragraph 4.11 of this address and are constrained to reproduce the second limb of the said rule in order to demonstrate that the 1st — 3rd Defendants has no justification for withholding the Claimant’s salary. It provides: “...Pending investigation into the misconduct, the Federal Civil Service Commission or the Permanent Secretary/Head of Extra Ministerial Office (if within his/her delegated powers) shall forthwith suspend him/her from the exercise of the powers ‘and functions of his/her office and from the enjoyment of his/her emolument” He submitted that what a suspension letter issued under PSR 030406 should expressly contain are: (a) Suspension from the exercise of the powers and functions of office; and (b) Suspension of enjoyment of emoluments. Following from a plain interpretation of the said Rules, it was submitted that word “AND” in between “Office” and “From” should be construed conjunctively, and when so construed it connotes addition. In Ezekwesili v. Onwuegbu (1998) 3 NWLR pt. 541 p. 217 at 225 “And” was interpreted thus: “AND” is a conjunction connecting words or phrases which express the idea that the later is to be added to or taken along with the rest. The word rather adds than subtracts. It includes rather than excludes”. That is to say, when exercising the power to suspend, the designated officer must indicate that the person to be suspended should not enjoy his emolument. Counsel submitted that where it is not expressly stated as in the instant case, that the Claimant is not entitled to emolument during the period of suspension, the Claimant is entitled to his salary and should be paid. Counsel placed reliance in the case of Longe v. FBN Plc (supra) at p. 36 para C — H where the suspension letter issued by the Respondent did not state that the Appellant had ceased to be the director. The Supreme Court held that the Court of Appeal was wrong to have held that the suspension of the Appellant on 22/04/2012 robbed him of his status as a director of the Respondent. He submitted that the 1st Defendant having failed to indicate in Exhibit A5 that the Claimant is not entitled to the enjoyment of his emolument during the period of his suspension, the suspension of the Claimant without more, would not rob the Claimant of the enjoyment of his salary. Counsel submitted and urged this court to hold that the Claimant is entitled to the enjoyment of his salary during the period of his suspension. He had in Issue 1 canvassed that the Claimant’s suspension was unlawful, null and void and prayed the Court to set aside the suspension letter, Exhibit A5. It is trite that where there is no justification for putting an employee on suspension, the employee ought to be paid his salary, referring to ACB Ltd v. Ufondu (1997) 10 NWLR pt. 523 p. 169. In Adekunle v. Western Region Finance Corporation (1963) WNLR 5 it was held per Fatayi William J (as he then was) at p. 10: “By merely suspending him from performing his duties, the defendant corporation has allowed the contract of employment to subsist during the relevant period and it is not open to them to put an end to it respectively. They cannot, in my view, escape liability for paying the Plaintiff’s salary during this period by dismissing him retrospectively”. In Nicol v. ECN (1965) LLR 261 it was held where an employer subsequently dismisses an employee who has been on suspension, he must be paid his wages or salary for the period of the suspension. In the instant case, by virtue of Exhibit A1, the Claimant’s 5 year term expired on 31st December, 2013. Despite the fact that the Claimant is no longer in office, he is entitled to the payment of his salary from March, 2013 — December, 2013 a period of 10 months. He therefore prayed the Court to hold that the Claimant is entitled to payment of his salary during the period of suspension and to order that same be paid. PART B ADDRESS ON COUNTER CLAIM INTRODUCTION In a counter claim dated 20/9/2013 and filed on 23/9/13. The Defendant counter claims against the Claimants as follows: “Whereof the 3rd Defendant counter-claims against the Claimant the sum of N 15,401,055.00 (Fifteen million, four hundred and one thousand and fifty five Naira only being counter-claim in the light of the above claim” In paragraph 7 of the 3rd Defendant’s Statement of Defence and Counter-Claim he avers: 7. In the light of the acts of omissions and commission of the Claimant, the 3rd Defendant has suffered financial loss and thereby summaries this counter-claim from the Claimant as follows: Salary and allowances unlawfully received in arrears by the Claimant for l6 month’s i.e. January 2009 — April 2010 =N 120,000.00 x 16 N1, 920,000.00 ii. Furniture allowance unlawfully received in excess of the Claimant’s Months from May 2010 to August 2010 N48-1, 466.25 x 28 months = N13, 481,055.00 Total N15, 401,055.00 NOTICE OF PRELIMINARY OBJECTION In paragraph 9 of the Claimant’s Defence to the counter-claim, the Claimant raised issue of jurisdiction to the counter-claim thus: 9 “The Claimant shall further contend that the 3rd Defendant lacks the competence and locus standi to maintain the Counter Claim and the 3rd Defendant is estopped from maintaining the action and or has waived his right to do so”. The Claimant intends to argue the Preliminary Objection on the follow grounds: (a) The counter-claim is statute barred not having been brought within 3 months when the alleged over payment were stopped by virtue of Section 2(a) of Public Officers Protection At, Cap P41 LFN, 2004. (b) The 3rd Defendant lacks the locus standi to maintain the counter claim. (c) The 3rd Defendant is estopped from maintaining the counter claim and or has waived his right to maintain the counter — claim. (d) In view of grounds (a), (b) and (c) above this Honourable Court lacks the jurisdiction to entertain the counter-claim. ISSUE FOR DETERMINATION ON THE PRELIMINARY OBJECTION “Whether this Court has the jurisdiction to entertain the counter claim.” ARGUMENT It is submitted that jurisdiction is a threshold issue and it can be raised at any time of the proceedings either by the court suo motu or by the parties appearing before the court. C.O.P v. Isiala Ngwa (1987) 4 NWLR pt. 64 p. 199. NOTICE OF PRELIMINARY OBJECTION In paragraph 9 of the Claimant’s Defence to the counter-claim, the Claimant raised issue of jurisdiction to the counter-claim thus: 9 “The Claimant shall further contend that the 3rd Defendant lacks the competence and locus standi to maintain the Counter Claim and the 3rd Defendant is estopped from maintaining the action and or has waived his right to do so”. The Claimant intends to argue the Preliminary Objection on the follow grounds: (a) The counter-claim is statute barred not having been brought within 3 months when the alleged over payment were stopped by virtue of Section 2(a) of Public Officers Protection At, Cap P41 LFN, 2004. (b) The 3rd Defendant lacks the locus standi to maintain the counter claim. (c) The 3rd Defendant is estopped from maintaining the counter claim and or has waived his right to maintain the counter — claim. (d) In view of grounds (a), (b) and (c) above this Honourable Court lacks the jurisdiction to entertain the counter-claim. ISSUE FOR DETERMINATION ON THE PRELIMINARY OBJECTION “Whether this court has the jurisdiction to entertain the counter claim.” ARGUMENT It is submitted that jurisdiction is a threshold issue and it can be raised at any time of the proceedings either by the court suo motu or by the parties appearing before the court. C.O.P v. Isiala Ngwa (1987) 4 NWLR pt. 64 p. 199. “Public Service of the Federation” is defined under Section 318 of the 1999 Constitution of the FRN as amended as the service of the Federation in any capacity in respect of the Government of the Federal and includes service as: (f) Staff of any educational institution established or financed principally by the Government of the Federation”. Counsel submitted that by virtue of the above constitutional provision, the Claimant as provost of the Federal College of Agriculture Ishiagu was a public officer when the counter claim was filed on 23/9/213, being a member of the public service of the Federation. See Section 18(1) of the Interpretation Act. Cap 123 LFN 2004 which provides: “The term “public officer” is a member of the public service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria, 1999, or of the public service of the state”. It is submitted that the Claimant being a public officer, the subject matter of the counter-claim ought to have been brought within 3 (three) months after the accrual of the cause of action by virtue of Section 2(a) of the Public Offices Protection Act Cap. P. 41 LFN 2004. Section 2(a) provides: It is submitted that where a law provides for the bringing of an action in respect of a cause of action accruing to a plaintiff within a prescribed period, proceeding shall not be brought after the time prescribed in the law. Consequently, any action brought in respect of the cause of action outside the prescribed period offends against the provision and does not give rise to any cause of action. In other words, the action is statute barred. Adigun v. Ayinde (1993) 8 NWLR pt. 313 p. 516. Ibrahim v. JSC Kaduna State (1998) 14 NWLR pt. 584 p.1. Counsel submitted that by virtue of Section 2(a) of the Public Officers Protection Act, any action against a public officer must be commenced within 3 months next after the cause of action otherwise such action will not lie as the court would lack requisite jurisdiction to entertain same. In the instant case the excess salary allegedly received by the Claimant was between January 2009 - April 2010. While the excess furniture allowance allegedly received was from May 2010 — August 2012. The cause of action accrued for the recovery of excess salary in April 2010 while the cause of action for the recovery of excess furniture allowance accrued in August 2012. See paragraph 7 of the counter claim. The counter-claim was filed on 23/9/20 13. Counsel therefore submitted that it is more than 3 (three) months from the date the cause of action accrued in April 2010 and August 2012 respectively, and when the counter-claim was filed, that being the case, the action is not maintainable as it has become statute barred and incompetent. He urged the Court to hold that the Counter Claim is incompetent and this court lacks jurisdiction to entertain same. LOCUS STANDI It is submitted that for the Defendant to have legal capacity to recover the alleged payment of excess furniture allowance or salary, it must show that the said monies were paid by the 3rd Defendant or the Ministry of Agriculture. Where the said monies sought to be recovered were not paid by the 3rd Defendant or Ministry of Agriculture, the 3rd Defendant would require the authorization of the relevant organ of government that paid the said money to the Claimant before the 3rd Defendant would have the requisite locus standi to maintain the counter-claim. In the instant case Exhibits B1 was an application for payment of furniture allowance made to Ministry of Finance while B2 and B3 show that payment of salaries and furniture allowance were made from the office of the Accountant General of the Federation. The DW2 who gave evidence on behalf of the 3rd defendant admitted under cross-examination that: “It is correct that the allocation to Federal College of Agriculture Ishiagu come directly from the office of the Account General of the Federation” DW2 also admitted that he does not work in the Ministry of Finance and not a staff of the office of the Accountant General of the Federation. There is nothing to show either orally or in writing that the Accountant General of the Federation authorized the 3rd Defendant to recover this alleged excess payment to the Claimant. It is to be noted that the 3rd Defendant is not the Chief Law Officer of the Federation. Counsel submitted that the 3rd Defendant has failed to establish that he has the locus standi to institute the counter claim. In Owodunmi v. Req. Trustee of CCC (2002) 6 NWLR pt. 675 p. 315 it was held that locus standi denotes the legal capacity to institute proceedings in a court of law. Where a plaintiff lacks locus standi his case must be struck out as being incompetent. And in Inakoju v. Adeleke (2007) 4 NWLR pt. 1025 p. 423, the Supreme Court established the meaning of locus standi as follows: “Meaning of locus standi or standing is the legal right of a person’s to an action to be heard in litigation before a court of law or tribunal. The term entails the legal capacity of instituting or commencing an action in a competent court of law or tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever”. See also Oshoffia v. Kosoko (2014) 3 WRN 84. Counsel submitted that since the Defendant did not pay the excess furniture allowance and salary he lacks the legal standing to institute the counter-claim to recover same from the Claimant. Where the 3rd Defendant lacks the locus standi to institute the counter claim the court lacks the competence or jurisdiction to entertain same. Oshoffia v. Kosoko (supra). He therefore urged the court to decline jurisdiction to entertain the counter-claim and strike same out. WAIVER Counsel submitted that by virtue of Section 169 of the Evidence Act 2011 as Amended, the 3rd Defendant is estopped from demanding the refund of the alleged excess payment of furniture allowance and salary. In Anon v. Elemo (1983) 14 NSCC 1 at 8 the Supreme Court held: “the concept of waiver must be one that presupposes that the person who is to enjoy a benefit or who has the choice of two benefits is fully aware of his right to the benefit or benefits, but he either neglects to exercise his right to the benefit, or where he has a choice of two, he decides to take one but not both”. The 3rd Defendant has waived his right to recover the excess payment until the institution of this Suit by the Claimant. ISSUES FOR DETERMINATION ON THE COUNTER CLAIM “Whether the 3rd Defendant has proved that the Claimant was paid excess furniture allowance and salary” ARGUMENT ON MERIT In order to prove the counter-claim the DW2 on 13/5/2014 adopted his Witness Statement on Oath. See paragraphs 11, 12, 13, 14 and 16 of the DW2 Witness Statement on Oath. The Claimant on his part deposed to a Witness Statement on Oath in defence to the counter-claim on 30/9/2013 and adopted same in 11/11/2013. The relevant paragraphs of the Claimant’s Witness Statement are 2, 3, 4, 5, 6, 7, 8, 10 and 11. The summary of the Claimant’s evidence which will urge this court to believe is that: (a) That Claimant’s furniture allowance is 300°/o of his annual basic salary of the sum of N 1,925,865.00 which is the sum of N481,466.25 per month and when multiplied by 12 months, it will be N5,77,595.00 which was what was paid to the Claimant in Exhibit B2. (b) The Claimant did not collect arrears of furniture allowance after the bulk payment of furniture allowance for 2009. The Claimant only collected short fall of salary for the first quarter of 2009. The arrears paid from January 2010 - May 2012 was shortfall in furniture allowance as observed by the Principal Officers. Counsel submitted that by virtue of Exhibit B6 Certain Political, Public and Judicial Office Holders (Salaries and Allowances etc) (amended) Act, 2008 the Claimant is entitled to a furniture allowance of 300°k of his basic annual salaries. See pages 5 and 6 of Exhibit B6. He submitted that if the furniture allowance is once per tenure or every five years, the Act that provided for 300% of basic annual salary for furniture allowance should have indicated furniture allowance as 6O% of basic monthly salary. To him, it is therefore wrong as being urged by the 3rd Defendant to place a restrictive construction on the furniture allowance as provided by Exhibit B6. This court is urged to hold that there is no furniture allowance and salary over payment by virtue of the provisions of Exhibit B6. He prayed the Court to discountenance the evidence of DW2 for lacking in substance as it was neither the 3rd Defendant nor DW2 that paid salary and allowances to the Claimant. He submitted and urged the court to dismiss the counter claim in its entirety. PART C REPLY ON POINTS OF LAW TO THE 1ST AND 2ND DEFENDANTS’ WRITTEN ADDRESS. The 1st and 2nd Defendants in paragraph 4.06 of their Written Address had submitted that the 1st Defendant did not suspend the Claimant but merely conveyed the approval of the 3rd Defendant. In response, counsel submitted that the 1st and 2nd Defendants cannot exonerate themselves from the suspension of the Claimant. Being the coordinating agency, their role in the build up that culminated in the suspension cannot be ignored. Counsel submitted that the fact Exhibit A5 was written in the headed paper of the 2nd Defendant and signed by the 1st Defendant made the said Exhibit A5 and the suspension of the Claimant the action of the 1st and 2nd Defendants which was ultra vires their powers. The 1st and 2nd Defendants also submitted that they have no responsibility of paying salary of the Claimant. In response, counsel referred to the Claimant’s relief 5 and submitted thus — (a) Where the 1st and 2nd Defendants could not pay salary, they have not denied that they could not direct any person who pays the salary to pay same when ordered by this Court. With respect to the 1st and 2nd Defendants’ submission in paragraph 4.12 of their Written Address, counsel adopted the Claimant’s submissions in paragraphs 5.1 — 5.11 of this Written Address. The counsel further submitted that the 1st and 2nd Defendants submitted in paragraphs 4.14 — 4.15 that the suspension of the Claimant followed laid down procedure. They enumerated three steps. In response, he challenged the 1st and 2nd Defendants to identify to the court the exhibit tendered in this case which the query was served on the Claimant. Who issued the query? Again to whom was the reporting of the misconduct made and by whom? He submitted that no query was issued to the Claimant pursuant to Rule 030302 and nobody reported any misconduct to the 1st — 3rd Defendants. The submissions of the 1st and 2nd Defendants in this regard are not based on any evidence before the court and as such should be discountenanced. CONCLUSION To the Claimant, the resume of his foregoing submissions are that the Claimant’s suspension by virtue of Exhibit A5 was unlawful, null and void, in that: (a) The procedure under the Public Service Rules 2009 was not followed. (b) The suspension was not made pending investigation but the Claimant was suspended after investigations into any alleged misconduct have been concluded. (c) The suspension of the Claimant was done without the approval of the President of the FRN who appointed him. To counsel, since Exhibit A5 did not state expressly that the Claimant is not entitled to enjoy his emoluments, the Claimant is entitled to payment of his salaries and allowances during the period of his suspension. Besides, the fact that the term of office of Claimant ended on 31/12/2013, the Claimant is still entitled to the payment of his salaries from March 2013 — December 2013. The counter claim is incompetent and this Court lacks the jurisdiction to entertain same for the following reasons: (a) The counter claim is statute barred not having been instituted within 3 months from when the cause of action accrued. (b) The 3rd Defendant lacks the locus standi to institute action on the subject matter of the counter-claim. The Claimant is entitled to furniture allowance of 300°/o of his annual basic salary. The Claimant was not paid any excess furniture allowance or salary. Counsel therefore on behalf of the Claimant prayed the court as follows: (a) The Claimant has proved his case; (b) To enter judgment in favour of the Claimant and grant him all the reliefs in paragraph 29 of the Statement of Claim or as per paragraph 30 of the Witness Statement on Oath of the Claimant deposed on 26/7/20 13. (c)To strike out the counter-claim or dismiss the counter claim for being vexatious and misconceived. The Court has carefully considered the suit AND Counter Claim before it; the submissions of all counsels to the parties and the authourities and statutes referred to by them. In compliance with the Rules of this Court,-the parties filed their Final Written Addresses and exchanged same, The 1st and 2nd Defendants in their Final Written Address presented the following issues for determination: 1) Whether the 1st Defendant suspended the Claimant from office as the Provost of the College of Agriculture Ishiagu, Ebonyi State. 2) Whether the 1st and 2nd Defendants are responsible of paying or not paying the Claimant’s salary. 3) Whether the suspension of the Claimant as the provost of College of Agriculture Ishiagu was right in compliance with the Law. I shall quickly state here that the 1st and 2nd issues above are resolved in their favor. From the evidence the Court, the 1st Defendant did not suspend the Claimant as Provost of the College of Agriculture Ishiagu AND neither the 1st or 2nd Defendants pay the Claimant’s salary. The 3rd Issue shall be considered latter. The 4th Defendant raised the following issues for determination to wit: i. Whether by the combined interpretation of the provisions of Agricultural Research Council of Nigeria Act Cap A12 LEN 2004 and the provisions of Public Service Rules 030406 (2008 Edition) the Claimant can be suspended by the 3rd Defendant. ii. Whether by the surrounding facts and circumstances of this case the Claimant is entitled to the grant of the reliefs being sought. In his Final written Address dated 9/7/2014 and filed on 10/7/2014 the Claimant raised two (2) issues for determination. These are: 1. Whether the suspension of the Claimant is unlawful, null and void in that: (a) The procedure under the Public Service Rules 2009 was not followed; (b) The Claimant was suspended after investigations into any alleged impropriety have been concluded; (c) The suspension was not with the approval of the President of the Federal Republic of Nigeria. 2. Whether the Claimant is entitled to salary during the period of suspension and or from when the suspension is declared unlawful, null and void. In this case, I have carefully considered the pleadings, evidence led and all the exhibits tendered at the hearing, it is my view that a consideration of the following four (4) issues will conveniently dispose of the Claims and Counter-Claims of the Claimant and s Defendant respectively. The issues are: a. From the circumstances of this case, whether the 3rd Defendant is really vested with the power to suspend the appointment of the Claimant? b. Having regard to the facts of this case, was the proper procedure followed in the suspension of the Claimant’s employment? c. Whether by the surrounding facts and circumstances of this case the Claimant is entitled to the grant of the reliefs been sought. d. Whether from all the circumstances of this case, the 3rd Defendant has proved its counter-claims on the preponderance of evidence and therefore entitled to the judgment of this Court? On ISSUE A , “From the circumstances of this case, whether the 3rd Defendant is really vested with the power to suspend the appointment of the Claimant?” It is on record before the Court that the Claimant was appointed through Exhibit “A1” Exhibit A1 is titled Appointment as Provost, Federal College of Agriculture, and Ishiagu. It reads inter alia: “I write to convey Mr. President’s approval for your appointment as PROVOST Federal College of Agriculture, Ishiagu for a non renewable of 5 years, from 1st January 2009…..” From the evidence placed before the Court, the 1st Defendant is a creation of statute: The Agricultural Research Council of Nigeria Act Cap A12 LFN, 2004. It is therefore my humble view and I so hold, that the powers and functions of the 3rd Defendant must be traceable to the above quoted law.” It does appear that the 3rd Defendant acted ultra vires his powers when by virtue of Exhibit C4 he directed the 1st Defendant to suspend the Claimant. The Claimant, being an appointee of the President can only be suspended with the approval of the President. In the instant case, there is nothing to show that the 3rd Defendant made any recommendation to the President for the suspension of the Claimant. The 3rd Defendant invariably usurped the powers of the President and wrongfully directed the suspension of the Claimant. DW2 who is the witness to the 3rd Defendant admitted this fact under cross-examination in these words: “Exhibit A1 (read). It was signed by Honourable Minister, Federal Ministry of Agriculture. The Minister recommends appointing a Provost to the College of Agriculture. The appointment is of Mr. President; if the President appoints someone to a post the Minister can recommend for his removal”. Section 16 of ARCN Act provides: “Subject to this Act, the Minister may give to the council directives of a general nature or relating generally to particular matters but not to any particular individual or case with regards to performance by the council of its functions under this Act and it shall be the duty of the council to comply with the directives”. On this issue therefore, I hold that the 3rd Defendant is not really vested with the power to suspend the appointment of the Claimant. ISSUE B “Having regard to the facts of this case, was the proper procedure followed in the suspension of the Claimant’s employment?” On this issue, the Court shall consider whether or not the Disciplinary procedures laid down by the Civil Service Rules were followed. Rule 30302 requires issuing of query to an officer who has committed any misconduct. In the instant case, no query was issued to the Claimant by either 1st or 3rd Defendants. None was tendered before this court by the1ST, 2nd and 3rd Defendants. Therefore Rule 030302 was not complied with. Rule 030303 made provision that where the Government sets up a Tribunal of Inquiry which makes recommendations of disciplinary nature on an officer, the Federal Civil Service Commission shall not act on such recommendations until it has called upon the affected officer to reply to the allegations made against him by the tribunal of inquiry. It is only when the officers neglects or refuses to reply to the allegations within a reasonable time or at all that the Federal Civil Service or its agent shall proceed to accept and enforce the recommendation of the Tribunal of Inquiry and take such disciplinary action against the office as it shall deem appropriate. In the instant case, no Tribunal of Inquiry was set up by the 1st — 3rd Defendants to investigate the allegations against the Claimant. Exhibits A9 and C1 were tendered as Tribunal of Inquiry recommendations, because there was ARCN Visitation Report in Exhibits A9 and C1. yet Exhibits A9 and C1 were not forwarded to the Federal Civil Service Commission nor was the Claimant called upon either by the FCSC or the 1st — 3rd Defendants to reply to the allegations made against him in Exhibits A9 and C1. See the cross-examination of DW2 of 13/5/2014. Rules 030304 provides for interdiction where necessary and enjoined the Permanent Secretary or head of Extra Ministerial Office to take action in accordance with Rules 030302 — 030306 and at appropriate point in the investigation to suspend the officer in accordance with Rule 030405. But from the evidence before the Court, Rules 030304 and 030305 were not followed. In his defense, the 3rd Defendant based his actions in suspending the Claimant on Exhibit C1, without following the procedure under Rule 030303. What the Court deduces from these is that the Claimant’s suspension did not follow the mandatory laid down processes/condition precedent to the suspension as envisaged by the CSR. I hold that the Claimant was not queried or given any chance to make a defense-no matter how unbelievably it may have been. ISSUE C“Whether by the surrounding facts and circumstances of this case the Claimant is entitled to the grant of the reliefs been sought.” To resolve this issue, the Court must consider the factors surrounding the Suspension of the Claimant. The Civil Service Rules of the Federal Public Service makes the relationsnship between the Claimant, Defendant and the Government that with statutory flavor. His employment, duties and retirement/termination are strictly as spelt out by the law establishing and governing them. In this case, the Claimant was appointed to a single, non renewable tenure as the Provost of the College of Agriculture, Ishiagu, Ebonyi State, His suspension by the authority of the 3rd Defendants was not in accordance with laid down procedures of the CSR; and the Suspension which is only meant to defer, lay aside or hold in abeyance, to halt midway but certainly not to bring to an end or terminated was not properly meted out to the Claimant. Public Service Rules 030406 (2008 Edition). The said rule is hereby reproduced for the sake of clarity: Suspension should not be used as a synonym for interdiction. It shall apply where a prima fade case, the nature of which is serious, has been established against an officer and it is considered necessary in public interest that he/she should forthwith be prohibited from carrying out his/her duties. pending investigation into the misconduct, the Federal Civil Service Commission or the Permanent Secretary / Head of Extra- Ministerial Office (If within his/her delegated powers) shall forthwith suspend him/her from the exercise of the powers and functions of his/her office from the enjoyment of his / her emolument. Nothing was said about denying him his salary. Indeed a suspension letter issued under PSR 030406 should expressly contain: (a) Suspension from the exercise of the powers and functions of office; and (b) Suspension of enjoyment of emoluments. From the reasoning of the Court above, this was not conducted according to the Law, and there is nothing either in the Rules or the Letter of suspension that indicates that the Claimant is not entitled to his salary. In the case of ACB vs. Ufondu (1997) 10 NWLR (pt523) 169, the Court held that where there is no justification for putting a person on suspension, the employee ought to be paid his salary. ISSUE D “Whether from all the circumstances of this case, the 3rd Defendant has proved its counter-claims on the preponderance of evidence and therefore entitled to the judgment of this court?” In the Counter Claim dated 20/9/2013 and filed on 23/9/13 the Defendant counter claims against the Claimants as follows: “Whereof the 3rd Defendant counter-claims against the Claimant the sum of N 15,401,055.00 (Fifteen million, four hundred and one thousand and fifty five Naira only being counter-claim in the light of the above claim” In paragraph 7 of the 3rd Defendant’s Statement of Defense and Counter-Claim he avers: “7. In the light of the acts of omissions and commission of the Claimant, the 3rd Defendant has suffered financial loss and thereby summaries this counter-claim from the Claimant as follows: Salary and allowances unlawfully received in arrears by the Claimant for l6 month’s i.e. January 2009 — April 2010 =N 120,000.00 x 16 N1, 920,000.00 ii. Furniture allowance unlawfully received in excess of the Claimant’s Months from May 2010 to August 2010 N48-1, 466.25 x 28 months = N13, 481,055.00 Total N15, 401,055.00” The Claimant argued the above on the follow grounds: (a) The counter-claim is statute barred not having been brought within 3 months when the alleged over payment were stopped by virtue of Section 2(a) of Public Officers Protection At, Cap P41 LFN, 2004. (b) The 3rd Defendant lacks the locus standi to maintain the counter claim. (c) The 3rd Defendant is estopped from maintaining the counter claim and or has waived his right to maintain the counter — claim. (d) In view of grounds (a), (b) and (c) above this Honorable Court lacks the jurisdiction to entertain the counter-claim. This was not challenged by any of the Defendants. The cause of action in this Counter Claim is the financial loss occasioned by the over payment to the claimant, the sum of money stated above occurred long before the Claimant was suspended in ………..more than the 3 months contemplated by S2a of POPA, and it was not until the institution of this case was it brought before a Court. There is no doubt that the Claimant is a Public Officer as also within the contemplation of POPA. I agree with the reasoning of the Claimant on this point. The Court also considered the locus standi of the 3rd Defendant and finds that that the Claimant receives his salary from the Finance Ministry as it is common knowledge; and as confirmed by the 1st and 2nd Defendants, and the DW2. There is nothing before the Court to show that the Finance Ministry gave authorized the Ministry of Agriculture orally or in writing to recover the overpaid money. The Court also sees the wisdom in the SC case of Anon v. Elemo (1983) 14 NSCC 1 at 8 the Apex Court held that: “the concept of waiver must be one that presupposes that the person who is to enjoy a benefit or who has the choice of two benefits is fully aware of his right to the benefit or benefits, but he either neglects to exercise his right to the benefit, or where he has a choice of two, he decides to take one but not both”. The Preliminary Objection of the Claimant on the Counter Claim is meritorious and is hereby upheld. The Counter Claim fails completely and is dismissed. In all, the Court holds as follows: Claim 1 succeeds-. The 3rd Defendant is not an appropriate authority and lacks the powers and competence to suspend the Claimant from office. Claim 2 and 3 succeed- the suspension of the Claimant from office as the Provost of Federal College of Agriculture Ishiagu, Ebonyi State by a letter ref No. ARCN/H/06/S.3/1/T/97 dated 19th March, 2013 is unlawful, null and void and of no effect whatsoever, and is hereby set aside. Claim 3 and 4 succeed- The Claimant is entitled to his salary and emoluments from March 2013 when he was suspended to December 2013 when his term of office expired; at the rate of N950, 408.06 (Nine hundred and fifty thousand, four hundred and eight Naira six kobo) per month. Claim 6 is overtaken by events and is hereby dismissed. This is the Judgment of the Court; and same is entered accordingly. ……………………………………… HON. JUSTICE M. N. ESOWE