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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: 17TH FEBRUARY, 2015 Suit No. NICN/ABJ/189/2013 BETWEEN DR. L. C. D. JACKREECE CLAIMANT AND 1. FEDERAL COLLEGE OF EDUCATION, ZARIA DEFENDANTS 2. COUNCIL, FCE, ZARIA 3. PROVOST, FEC, ZARIA 4. DR. MRS. M. C. YAROSON 5. REGISTRAR, FCE, ZARIA 6. MR. J. S. DANJUMA REPRESENTATION I. B. Atiyegoba Esq with A. Itedjere Esq for the Claimant. Yemi S. Adekunle for the Defendants. JUDGMENT The Claimant by an amended statement of facts dated 17th September, 2014 claims against the defendants the jointly and severally as follows:- a. AN Order nullifying the punitive decision/recommendations of the council of the 1st defendant at its emergency meeting held on 25/01/2007 against the claimant without fair hearing and during the pendency of Suit FHC/KD/CS/25/2007. b. An Order setting aside and/or nullifying the letter dated 26/01/2007 from the 4th Defendant conveying to the claimant a warning and other punitive decisions/recommendation of the council of the defendant, having been issued in violation of the claimant’s right to fair hearing and during the pendency of Suits/FHC/KD/CS/14/2007 and FHC/KD/CS/25/2007. c. An Order setting aside and/or nullifying the warning notice and warning acknowledgment dated 16/02/2007 issued by the defendants through the 4th defendant to the claimant as they lack any basis in law and in fact. d. An Order setting aside and/or nullifying the notice of dismissal letter dated 06/03/2007 issued by the defendants to the claimant as same was issued during the pendency of Suit FHC/KD/CS/44/2007 and without compliance with the defendants’ laws, conditions of service and without any fair hearing whatsoever. e. An Order reinstating, the claimant to his employment and status as the Director of Health Service of the 1st Defendant, his salaries annual increment and his official residence and other benefits and prerequisites of his employment in the 1st defendant, from the date of his purported dismissal from the service of the 1st defendant to whatsoever Judgment is delivered in this suit. f. A declaration that the Public Service Rules 2008 does not apply to the claimant, as 1st defendant is a statutory body with its own rules, regulations and laws. g. The sum of N7,783,596.46 (Seven Million Seven Hundred and Eight-three Thousand Five Hundred and Ninety-six Naira Forty-six Kobo) being allowance and entitlements due but not paid by the defendants to the claimant as follows:- i. N4,682,979.40 - being outstanding call duty allowance and arrears from August 2003 to January 2007 approved since 19th June, 2001. ii. N1,363,244.80 - being clinical supplementation (clinical duty) allowance for principal medical officer grade and above at 40% of annual basis salary amounting to N216,000 per annum for 6 years as approved since 1st January 2001. iii. N86,66.66 - Hezard allowance stopped for the period August 2003 to January 2007 at N20,000 per annum. iv. N226,061.20 - Inducement allowance stopped between August 2003 to January 2007 computed at 10% of basic salary for four years. v. N138,750.00 - being journal and learned society allowance (paid to registered members of professional bodies) but which was stopped by the 1st, 3rd and 4th defendants between August 2003 to January 2007. vi. N864,000 – being arrears of part-time from 1995 – 2006. vii. N117,181.55 – being refund of deductions made on account of the National Housing Scheme (NHS) between January 2001 and January 2003 but not reflected in the claimant’s National Housing Fund contributor’s passbook. viii. N40,997.25 – being refund of excess tax deductions between January 2005 to February 2007. ix. N263,715.60 – being unpaid arrears of examination administrative allowance of 20% of annual basis salary between August 1999 to December, 1992. h. N500,000.00 – General damages for wrongful/unlawful dismissal of the claimant from the services of the 1st defendant. i. The cost of the suit. The complaint was accompanied with the claimant statement of facts, witness statement on Oath, list of witnesses and list of document to be relied upon at the trial. By a motion on Notice dated 15th December, 2013 and filed on 19th November, 2013 and moved on the 5th December, 2013 and then the defendants of appearance, statement of defence, list of witness and statement on Oath, were deemed to have been properly filed and served. The matter went on trial, the claimant testified, tendered Exhibits and close his case while the defendants called Aliyu Galadima Deputy Registrar and Mr. John Danjuma a former Registrar with the Federal College of Education, Zaria. At the end of the trail, parties were ordered to file and exchange their final written addresses. On the 18th of November, 2014 parties adopted their final written address. The learned counsel for the defendants formulated two issues for the court determination to wit:- a. Whether in the circumstance of this case, the claimant has established his case to warrant the grant of the claims before the court. b. Whether the claims are not liable to be dismissed. The learned counsel to the defendants submitted that there is no sufficient evidence to warrant the grant of all or any of the claims before the court. Counsel submitted that in the first instance, the law is trite that a (Plaintiff) claimant must prove his case on the strength of his evidence. See CHIROMA V SUWA (1986) 1 NWLR (PT. 19) PG. 751, see also AKINNOLA V OLUWA (1962) 1 ALL NLR 224. In the first instance, the claims of the claimant in paragraphs 82 (G) (VII) & (VIII) are not justiciable and must fail. The defendant are staff and officers of Federal College of Education, Zaria which is a teacher training institution. Cases and claims on excessive taxation and deductions for National Housing Fund Scheme cannot be determined without the statutory bodies in charge of those matters i.e. Federal Inland Revenue Services and National Housing Commission. These two bodies are bodies Corporate and can be sued and can sue. These bodies are the appropriate parties to answer such claims. Failure to join them is thus fatal to those claims. Besides, such claims are only justiciable before the Tax Appeals Tribunals established under the Federal Inland Revenue Services Act. Counsel then submitted it is significant that there are no complaints that deductions made were not remitted to the appropriate authorities. Even at that, the complaints of such would be from the appropriate tax authorities and the Housing Commission. Continuing, counsel submitted that in the same vain, the claim in paragraph 82 (G) (vi) of the amended statement of facts. That in proof of the assertion, PW1 gave evidence that he sought to teach in Physical Education Department even though he was employed as a Medical Doctor to man the College Clinic. On cross-examination, the claimant agreed that he made the application in writing which he did not tender. DW2 however, tendered the letter as Exhibit D1, Paragraph 4 of Exhibit D1 reads:- At present, I am the Senior Medical Officer and Ag. Director of health services in your College. I am applying honorary part-time lecturer and do not except monthly financial benefit since I am already on full time service of the College. Counsel submitted that the above is self explanatory. The same claimant who agrees that he is already a full time staff of the College and who knows that it will be against the rules to be paid twice in the service of the same employer is now making this spurious claim again. Counsel submitted further that there are no particulars of such claims, neither was there any evidence of how the sum claimed amounts to such. Counsel urged the court to dismiss the claim as well. Continuing, the learned counsel argued that the claimant claims call duty allowance, clinical supplementation (clinical duty) allowance, Hazard allowance, inducement allowance and Journal and learned society allowance in paragraph 82(G) (1 – V) of the statement of facts. Then the claimant tendered Exhibits PW22, PW23, PW24, and PW25. The general trend of Exhibit PW22, PW23 and PW24 shows that they are Federal Government circulars for specific bodies which commenced since 1993 and culminated in the letter of the claimant to the 2nd defendant of 20/7/2000 (Exhibit D8). That Exhibit D8 is a clear complaint about non-payment of allowances captured in Exhibits PW23 & PW24. The comments of appropriate officers of the 1st defendant are contained on Pg 1 & Pg 2 of Exhibit D8 of particular importance is the response of the Bursar on Pg 2 on 25/7/2000. The provost then referred the claimant who was the Director of Health Services (DHS) to the explanations for the stoppage of the allowances. This was on 30/7/2000. However, the claimant commented on Pg 2 of Exhibit D8 at the last 5 lines of Page 2 Pf Exhibit D8 as follows:- NOTED: appropriate response to be sent to the office of the provost later. Signed DHS. There is no such response tendered before this Hon. Court. Counsel submitted that if the comment of the claimant is read in line with the Provost’s comment on Pg 2 Exhibit D8 (which reads as follows):- DHS Please see the Bursar’s above for your noting I am sure you are now aware and probably satisfied with the reason why the said allowances had to stop. Signed Provost 30/7/2000. The irresistible conclusion to be arrived at from the above, is that the claimant has become satisfied with the reasons for the stoppage hence he did not write any response in accordance with his undertaking in Exhibit D8. In conclusion on this issue, counsel urged the court to dismiss all such claims contained in paragraph 82 G i – ix. The crux of this case is the claims of the claimant in paragraph 8 A – F. The facts that led to the issuance of the letter dated 26/01/2007 need not be re-stated in a great detail. Suffice though to state that every organization or statutory body had laid down rules and regulations binding on all the bodies and authorities. The breach to these or part of the conditions in such conditions of service may lead to varying consequences and disciplinary measures. The main complaint of the claimant to the issuance of the letter date 26/01/2007 (Exhibit PW45) is that the claimant is not bound by the Public Service Rules 2000. It is however curious that the same claimant who is not bound (by his own account) is relying on Public Service circulars to make claims (monetary) against the 1st defendant. Be that as it may, Exhibit PW45 is a warning which means it is the outcome of a process. Paragraph 1 of Exhibit PW45 explains the basis for the issuance of Exhibit PW45. Counsel submitted that the document says that the mild disciplinary measures meted on the defendants via Exhibit PW45 was made pursuant to PSR 11204 and College Condition of Service in chapter 16. In essence, the claimant was punished after responding to the query issued to him on the breach of procedure for ventilation of grievance under the College rules and regulations. Such positions are deemed regular by the provision of Section 146 (1) & 2 of the Evidence Act 2011. Even though, it may be argued that the presumption is reasonable, but the onus is on the claimant to re-but. There is no evidence before the court to rebut this presumption of regularity. The letter, Exhibit PW45 was issued by the authority which possesses powers to issue it and was issued in substantial compliance with the rules. Even if the claimant were not a civil servant and not subject to the Public Service Rules, can be said not to be subject to the condition of service of the College (1st defendant)? The answer is NO. To this extent, the entire claims in paragraph 82 (A) & (B) of the statement of facts should fail and he urged the court to dismiss them. The only other issue is the issuance during the pendence of Suit NO FHC/KD/CS/25/2007 which the court will briefly respond to now. Counsel argued that the fact that a party has filed a case before a court does not automatically restrain the other party from taking any steps. If a new issue arises, the defendants will be proper to take appropriate steps not withstanding the fact that there was a case existing though on a different issue. The facts necessitating the warning, as in Exhibit PW45 are disconnected and distinct from what led to the Suit NO FCH/KD/CS/25/2007. Besides, the remedy of the claimant is to commence contempt proceedings before that court whose orders or processes were allegedly being disobeyed. Also, the claimant seeks the court order to set aside and nullify the letter dated 16/2/2007 (Exhibit PW13). Counsel submitted that the genesis of the issuance of Exhibit PW13 was the absence without permission from the appropriate authority by the claimant on 15/2/2007 from 8.00 am to 1.48 pm. The claimant in his response claimed that he “informed” the Deputy Provost wherein the Deputy denied being informed nor did he grant any permission to the claimant to travel to Kaduna. The Deputy Provost further stated in the document that such claims by the claimant was mischievous and untrue as he was in Abuja attending an official function. That the purport of Exhibit PW13 dated 16/2/2007 was an award of a mild punishment within the capacity of the Provost, and the management for “laying false claim against the office of the Deputy Provost”. Very curious enough, Exhibit PW13 which was tendered by the claimant was to carry the Deputy Provost’s comments but the claimant detached it and withheld it from the court. The claimant also referred to the then Deputy Provost, Dr. Ola Omoniwa who could have aided the claimant’s case by showing whether the claimant obtained permission from him or informed him before leaving the College on that date. The wordings in the bracket in lines 12 – 13 of Exhibit PW13 shows that the Deputy Provost’s comments were attached as minute “B”. That by the provision of Section 167 (d) of the Evidence Act 2011 on withholding evidence is to the effect that such evidence would be against the person withholding it if it were produced. On this he consequently, urged the court to dismiss the claim in paragraph 82( c) of the statement of facts. The last two issues in contention are those in the claimant’s paragraphs 82 (D) & (E) of the statement of facts. In those paragraphs, the claimant is seeking to set aside and nullify the notice of dismissal (Exhibit PW5) and to re-instate the claimant to his employment and status as the Director of Health Service. On this the counsel submitted that the claimant was dismissed from the services of the 1st defendant vide Exhibit PW5. The content of Exhibit PW5 is very clear. The reason adduced for dismissing the claimant is “absence from duty without permission”. The condition of service of the college was admitted in evidence as Exhibit PW4 wherein the procedure for taking such measures are laid out in chapter 7 of Exhibit PW4 (Pages 36 – 40) deals with ceasation of service of an employee like the claimant. Item 7.3 on Pg 36 of Exhibit PW4 deals with dismissal and vests the power to dismiss a member of staff on the council of the colleges “… without notice for acts of gross misconduct prejudicial to the interest of the institution ….. There is no doubt that the claimant is a staff of the college (a senior staff). There is also no doubt that the claimant was not at work on 15/2/2007 from 8.00am till about 1.48 pm even though the claimant admitted (as PW1) on cross-examination that he received the query (Exhibit PW12) at the time he endorsed it which was about 3.45pm. There is also no doubt that the claimant did not secure permission before absenting himself from work on that day. He rather claimed that he informed the Deputy Provost (who was proved to be away then thus could not have been informed). To the counsel what was required of the claimant before existing the college on 15/2/2007 was to seek for and obtain permission. “To seek and obtain permission” is clearly different from “informing” a superior officer. The claimant is a non-academic staff and he is subject to the provision of chapter 12.3 of the College’s condition of service (Exhibit PW4). The effect of the provision of chapter 12.8.1 (Page 64 – 65) of Exhibit PW4 is to the effect that the claimant ought to have sought “approval” from the Head/Head of School and where appropriate, the approval of the Provost where it would exceed one day. The later provision “… where it would exceed on day…” applies to staff who have Heads of Department before the Provost. The claimant’s only boss in the College is the Provost as he also agrees on cross-examination that he is directly responsible to the provost, so he required to obtain permission from the Provost. See also the provision of Chapter 19.2.2 ix Pg 99 – 100 of the College’s Condition of Service Exhibit PW4. The explanation of the claimant that he went for his case at the Federal High Court, Kaduna was clearly a purpose unrelated no normal College duties. Moreover, the claimant’s presence in court was not mandatory. Before the court the claimant had only appeared twice. In civil suits, parties presence are not mandatory. It is the counsel submission that the claimant having fallen on the wrong side of the law is only trying to lay frivolous claims. The claimant had been afforded adequate opportunities of fair hearing, the dismissal was done by the body vested with powers to do so and in the language of DW2, “the claimant has become a perpetual absence without permission which the College council considers as cumulative and thus dismissed the claimant”. He referred the court to Exhibits D2, D3, D4, D5, D6, D9 and D10. That the effect of all these Exhibits is that the claimant is an unrepresented absentee from duties without permission. Each time he was queried, he apologized and later, he would do the act again. Counsel went on to submit that in some of those Exhibits, the College had even gone so far as to draw the attention of the claimant to the procedure by getting the EXIT FROM COLLEGE FORM. The claimant is fully aware of this as he once applied properly leading to the issuance of Exhibit PW28. Also on 29/5/1995, the claimant had sought and obtained approval for a journey to the same Kaduna for only a day (6/6/1995). See paragraph 11 of Exhibit PW7 (counter affidavit to Motion on Notice dated 27/2/07) and annexture 15 to that counter affidavit. Also, the claimant tendered Exhibit Pw27 which again goes to show the necessity to seek permission before existing the College. One issue which frequently arose from the cross-examination of DW2 was the time given to the claimant to answer the query. The court to begin with, the claimant is a seasoned staff of the College having spent several years in the services of the College. The claimant could request for more time if time given was not enough. It has become customary in the College which the claimant was used to act within short notices. See Exhibit PW19 and PW21. Furthermore, the claimant maintained this suit against six (6) defendants. The 4th defendant from the evidence before the court was the then provost whereas the 6th defendant acted in their official capacities in all their actions. One wonders why they were sued in their private capacities as Dr. Mrs. M. C. Yaroson and Mr. J. S. Danjuma respectively after having joined them in where the principal is disclosed, the agent cannot be sued together with the principal. To that extent, there are no proper parties before this Hononrable Court. He urged the court to either strike out the names of the 4th and 6th defendants or decline jurisdiction. The claimant also claims general cost to the suit. He submitted that the award of cost follows an event. The claimant has no evidence before the court entitle him to the award of any cost, and urged the court to discountenance the issue of cost. Having analysed all the ills with this case, he urged the court to dismiss this case with cost to the defendants. The claimant counsel formulated on behalf of the claimant four issues for the determination of the court:- 1. Whether leading to the purported dismissal of the claimant by the defendants’ due process and adherence to the rules of natural justice were followed. 2. Whether the actions of the defendants against the claimant in outright disregard and disobedience to the subsisting orders of the court during the pendency of suits Nos. FHC/KD/CS/25/2007, FHC/KD/SC/14/2007 and FHC/KD/Cs/44/2007 are valid. 3. Whether having regarded the totality of the evidence of DW2 it will be justified to conclude that his evidence was substantially contradictory, inconsistent and vague. 4. Whether the claimant has by credible and satisfactory evidence proved his case against the defendants and thereby entitled to the releifs sought. Issue 1 Whether leading to the purported dismissal of the claimant by the defendants due process and adherence to the rules of natural justice were followed. The learned counsel for the claimant submitted that the clamant is a medical officer of over 18 years post qualification experience. He was offered appointment as a medical officer I by the 1st Defendant i.e. Federal college of education, Zaria by a letter dated 04/01/93. The Clamant accepted the offer and was by a letter date 19/11/96 confirmed. See Exhibits PWI, PW2. PW3 and PW11. These facts were never disputed by the Defendants. The 1st Defendant the employer of the Claimant was established by the Federal college of Education Act, 1986, No.4 and listed under the said Act thereby conferring upon the 1 St Defendant a statutory status. Claimant counsel submitted that an employment is said to have statutory flavour when it is protected by statute; and this occurs where the terms of employment including appointment and termination of the employment are governed by statute or laid down regulations made to govern the procedure for employment and discipline of an employee. The Claimant’s letter of appointment i.e Exhibit PW1 incorporated the provisions of the “College Degree (Federal college of Education Act, 1986 No.4), laws, statutes and ordinances thereunder “as part of the Claimant’s terms of employment. The Claimant’s employment is an employment with statutory flavor. See SHITTA-BEY Vs. F. P. S.C (1981) 1 SC 4.and EX1IIBIT PW1. The counsel submitted further that if the terms and conditions of a contract of employment are specifically provided for by statute or regulations made therein then the contract is protected by statute or regulations made there under, the contract of employment of the Claimant in other words is one with statutory flavour. Counsel submitted therefore that by virtue of the provisions as contained in the Claimants’ appointment letter i.e. EXHIBIT PW1, the Claimant’s employment is one with statutory flavour. See SHITTA BEY. v. F. P.S.C. (supra) and EPEROKUN .v. UNIVERSITY OF LAGOS (1986) 4 NWLR PT.34, 162. He submitted that the Defendants witnesses (DW1 and DW2) under cross - examination admitted without any dispute that the Claimants’ contract of employment is governed by statute as contained in EXIIIBIT PW 4. When an office or employment is statutory in the sense that its conditions of service are provided for by statute or regulations made thereunder, any person in that office or employment enjoys a special status over and above the ordinary master and servant relationship. In the matter of discipline of such an employee, the procedure laid down by such statute must be fully complied with. If not, any decision affecting, the right or reputation or tenure of office of that employee will be declared null and void. Also, contract of employment which enjoys statutory protection can only be terminated in the manner prescribed by the governing statutory provisions, a breach of which renders the act of termination ultra-vires and void. The contract cannot be discharged on the agreement of the parties without compliance with the enabling statutory provision. It is the counsel further submission that from EXHIBIT PW 1 paragraph (2) which states clearly as follows “The appointment is subject to the provisions of the colleges degree, laws, statute and ordinances made there under and to regulations governing the conditions of Appointment of staff made by the college council from to time “. He submitted that chapter 2.2(1) of EXHIIB1T PW 4 provides that all appointments shall be made by council on recommendation of the appropriate appointments and promotion committee; see EXHIBITS PW 1, PW 2 and PW11. The conditions of service of the claimants’ employment i.e. EXHIBIT PW4, chapter 6 provides for discipline and disciplinary procedures. Chapter 6.8(i) of the said chapter specifically provides for Dismissal as follows; DISMISSAL An employee shall be dismissed on any of the following reason if:- (a) He is found guilty of gross misconduct after interdiction. (b) He fails to disclose any previous conviction on first appointment (c) etc. The chapter 1(21) of the conditions of service defines interdiction as follows: “Interdiction” means a prime facie case made against a member of staff and his continued presence is considered prejudicial to good administration. Such a staff shall be asked to keep away roni work and be placed on half salary until the determination of the case “. Counsel submitted that the pertinent question to ask at this juncture is, was due process followed in the purported dismissal of the Claimant on the 6/03/07 for gross misconduct by the Defendants? The Claimant laid abundant evidence at the trial that his purported dismissal was without due process. This evidence was not contradicted or rebutted by any witness called by the Defendants. The Defendants witness DW2 stated in evidence that ‘on the 15th Feb, 2007, I was in my office when the provost sent for me she informed me that she needed the Claimant for an urgent official matter. He said he personally went to look for him and he was not seen... “The Claimant in response to the query from the Provost on his return stated that he informed the Deputy Provost that he was going to the court for suit no. FHC/KD/CS/14/2007. See EXHIBITS PW8 and PW12. DW2 stated further that “the provost presented this issue to the governing council of the college at the council meeting, the reasons as contained in the Claimant’s response to the query was not satisfactory to the governing council and it directed the dismissal of the claimant from the service of the college immediately”. The DW 2 further admitted that throughout the employment of the claimant with the 1st Defendant up to when the Claimant was purportedly dismissed he was never denied promotion, lost salary increment, interdicted or suspended on account of any misconduct. He submitted that it is clearly stated in the notice of dismissal (EXH PW5) that the ground upon which the Claimant was said to have been purportedly dismissed was gross misconduct. Chapter 6.8 of the condition of service provides that a staff shall be dismissed on account of gross misconduct after interdiction. It is in evidence and admitted by DWI and DW2 that the Claimant was never interdicted by the Defendants. There was no documentary evidence tendered before this court to also prove that the Claimant was ever interdicted before the said dismissal on an alleged account of gross misconduct. It is the counsel submission that the Claimant’s employment which is that with statutory backing must be terminated in the way and manner prescribed by that statute. Any other manner of termination of the employment, which is inconsistent with the relevant statute is null and void and of no effect. Ever partial compliance with the provision of the statute governing the claimant’s condition of service amounts to non-compliance. See HARUNA V. UNIAGRIC, MAKURDI (2005)3 NWLR PT.912 @244 ratio 13. As can be gleaned from Claimant’s letter of appointment, the document governing the conditions of service of the Claimant is not the Civil service rules but Federal College of Education, Conditions of Service (EXHIBIT PW4). Assuming, but without conceding, that the Public/Civil service rules (PSR) governs the appointment, due process was still not followed in the purported dismissal of the Claimant. See E.P IDERIMA vs. R.S.C.S:C (2005)16 NWLR PT 951 @ 382 ratios 1 and 2.See also Unreported judgment of Hon. Justice B. A. Adejumo. OFR between NIGERIA UNION OF TEACHER V STATE SECURITY SERVICE & 2ORS SUIT NO: NICN/ABJ/109/2014; delivered on 17/09/20 14 @27 to 28. It is the counsel submission that in all trials whether judicial or administrative, the person against whom a complaint is laid must be heard in compliance with the principle of ‘Audi alteram Partem”. That is also the crux of S.36 of the 1999 Nigerian Constitution. It is also reflected in the statutes where persons could be put on trial or investigated with possible consequence of reprimand and or punishment. For every accusation there must be a right to be heard. See Chapters 6.11 and 7.3 of the College condition of service. Chapter 7.3 of the conditions of service particularly 21 paragraph states categorically as fol1ows:- A member of staff shall not be dismissed until he has been given the opportunity to submit a representation in writing And the case has been duly investigated and determined with due opportunity of fair hearing by the appropriate disciplinary committee . He submitted that the Defendants in their Joint final written address dated15/10/14 are being economical with the true position of Chapter 7.3,this we consider as a calculated move to misdirect and mislead this court, they deliberately skipped the continuation of the subsection on page 37 hut made mention of only page 36.Chapter 7.3 cannot be considered without first looking at the chapter 6.8 which provides for discipline and disciplinary procedures particularly on matters which amounts to gross misconduct. From the abundance of evidence laid before this honourable court, it has been established that the process leading to Claimant’s purported dismissal was deprived fair hearing and. in some instances there was no hearing at all for us to talk about a hearing being fair and he was not allowed to defend himself. The Claimant in his evidence before this court adduced that on the24/01/2007 he received a letter titled query (EXH PW42) authored by the 5th Defendant, Mr. J.S. Danjuma giving the claimant 24 hours within which to answer to an alleged petition to the Minister of Education and no copy of the alleged petition accompanied the query. The Claimant through his counsel responded to the alleged query inter alia requesting for a copy of the alleged petition, to enable the Claimant respond pointedly to the allegation therein and also complained about the insufficient time within which he was required to respond. the Claimant was never furnished with the copy of the alleged petition. The Defendants thereafter served the Claimant warning letter. See EXHIBITS PW43 and PW 45. The Defendants also refused to grant the Claimant’s counsel audience and dismissed them as external persons. This and other violations of Claimant’s right to be heard are clearly against the provisions of Chapter 16.3(I) (ii), page 90 of EXHIBIT PW4. During cross examination the DW2 admitted that Claimant was invited by a letter titled invitation notice dated 12t1 Feb, 2007, EXHIBIT PW 9 to appear before the AP & DC on the alleged police report on smuggled petition. DW2 also admitted that Claimant received the said invitation by 8.48am on the same 12/02/07 to appear before the committee at 930am on the same 12/02/07. It is the evidence of the Claimant that EXHIBIT D7 which is the alleged police report was never made available to him when he requested for it through his counsel nor made available when the court ordered the Defendants to so do. The first time ever EXHIBIT D7 was sighted by the” Claimant and his counsel was on the 17th of September, 2014 in this court during the examination in Chief of DW2. He submitted further that EXHIBIT D7 is an inadmissible document, by failing the test of certification. It therefore robs it of any evidential and probative value in this proceeding. The document is not certified by the public officer having the custody of the said document. The document emanated from the Nigeria police, Zaria Area Command and not 1st Defendant. When asked under cross examination if Dr. Jubril, the College Registrar who claimed to have certified the police report. A police officer? DW 2 answered that Dr. Jubril is the registrar of the 1st Defendant i.e. the colleges. Dr. .Jubril is not an officer in the Nigeria Police force. Zaria Area’ I Command hence he cannot fall within the category of the officer mandated by law to certify EXHIBIT D7. The contents of legally certified copies of documents are by statute deemed to be authentic and credible but where there is no certification by law as in EXHIBIT D7 there is no presumption of regularity. See TABIK INVESTMENT LTD v. G.T.B PLC (2011)46 PT.2 @667. The court should hold that the said EXHII3IT D7 did not emanate from the police, it is the making of the Defendants in order to perfect their plans to justify dismissal of the Claimant at all cost. The said Exhibit though wrongfully admitted should be rejected for failing the mandatory provision of certification as a public document. The EXHIBIT D7 has been made inadmissible by express provision of law; the court will not act on it even with consent of the parties. See Evidence Act. S. 104 and S.105. KALE v. COOKER (1982) 12SC 252 and ACACU .v. I)AWOI)U (1990)7 NWLR PT. 160. P. 56 Ratio 6 and TABIK INVESTMENT LTD .v. C. I. B. PLC (2011) 46 PT. 2,648 @ 667, OWENA BANK (NIG)PLC V.PUNJAB NATIONAL BANK(2000)5 NWLR PT.658 and ALADE .v. OKULADE (1976)7SC 183@ 183-190. We urge this Honourable court to discountenance with EXHIBIT D7 in this proceeding. Assuming, but without conceding, that the Exhibit D7 is admissible it will still be of no evidential or probative value. The maker was not called by the Defendants to lend credibility and authenticity to the report. It is also possible it was prepared for the purpose of the defence in this law suit. See ENGR CHARLES UGWU & ANOR vs. SENATOR IFEANYI ARARUME & ANOR (2007)6 SCNJ, 316 at 354356.See also Evidence Act, S.83(3). DW2 admitted under cross examination that the Claimant was officially permitted by the Deputy Provost to honour the invitation letter from EFCC to appear before the commission on the 6/03/07. On Claimant’s return from Abuja on the 7/ 03/07, the Defendants had a council meeting in his absence on the 6/03/07 and dismissed him from his employment without affording him any opportunity to defend himself. Counsel submitted that in all institutions set up by statute it is incumbent that the statutory provisions be adhered to when it comes to removal of their officers from office because the institutions owe their existence to the statutes and must abide by the statutory provisions governing them. The failure of the Defendants to investigate an allegation against a civil servant on pensionable cadre like the Claimant in accordance with the provisions of the conditions of service (PW4) before disciplinary actions were imposed on the Claimant, amounts to a denial of natural justice and fair hearing see E.P.IDERIMA. v. R. S. C. S. C (supra) and GOV. EKITI STATE V. AKINYEMI (2011)17 NWLR PT 1276 @ 373 ratio 12. He submitted that vested and accrued rights of an employee whose contract is regulated by law cannot be taken away without the observance of the principles of fair hearing. See EZENWA. v. K. S. H. S. M. B. (2011) 9 NWLR (PT 1251) @ 89. The Defendants did not comply with the chapter 6.8(I) (i) of the College condition of service in the process leading to the dismissal of the Claimant from his employment. In the circumstance we urged the honourable court to hold that the dismissal of the claimant by the Defendant from his employment was null and void and of no effect whatsoever. See UBN LTD. v. OGBOH (1995) 2 NWLR (PT380) 647, ADENIYI .v. GOVERNING COUNCIL YABA TECH (1993) 6 NWLR (PT 300) 426, E.P.IDERIMA. v. R.S.C.S.C (2005) 16 NWLR (PT951) W 378. Counsel further submitted that the C1aimant is entitled to be re-instated back to his position in the College. He submitted is anchored on the position of the law that where the termination of an employment with statutory flavor is wrongful, the effect is that the employee never left his, employment and would be entitled to re-instatement into his position and to all his salaries and allowances. He referred the court to the decision of the Court in FEDERAL MEDICAL CENTRE, ADO EKITI & 3 ORS v. ISAAC O. OLAJIDE (2011) 11 NWLR (pt. 1258) 265 at p.286 paras B-C, where the Court held thus: Where the termination of an appointment with statutory flavor is wrongful, the effect is that the employee never left his employment and would be entitled to re-instatement and to a/I his salaries and allowances... Counsel urged the court to hold in answering the issue 1 in the negative that there was non-compliance with the provisions of the FCE conditions of service (PW4) relating to disciplinary proceedings against the claimant, the manner of such non-compli4nce was a violation of the principles of natural justice. We further urge my Lord to invoke S. 14 of the National Industrial Court Act 2006 in nullifying the action of the Defendants and grant all the reliefs of the Claimant. The section reads: The Court shall in exercise of the jurisdiction vested in it by or under this Act in every cause or matter, have power to grant, either absolutely or on such terms and conditions as the Court thinks just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim properly brought forward by the Court so that, as far as possible, all matters in dispute between the parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of those matters avoided.” Issue 2 Whether the actions of the defendants against the claimant in outright disregard and disobedience to the subsisting orders of the court during the pendency of suits Nos. FHC/KD/CS/25/2007, FHC/KD/SC/14/2007 and FHC/KD/Cs/44/2007 are valid. In respect of this issue the claimant’s case submitted that this suit being a transferred matter from the Federal High Court Kaduna and by virtue of Order 28 Rule 3 National Industrial Court Rules 2 007, all the proceedings and Orders of the Federal High Court Kaduna are deemed to have been filed and made by this Honourable Court. The Claimant laid abundant evidence at the trial that the Defendants having participated and knowledgeable of the proceedings and orders of the Court, went ahead to disobey all the Orders of the court with impunity. His evidence was not contradicted or rebutted by the Defendants in their joint statement of defence and by any of their witnesses; rather it was admitted and corroborated in their joint statement of Defence and by DWI and DW2 under cross examination. Pointedly in view of the Defendants warning letter dated 26/01/2007, the Claimant, by an ex- parte motion dated 31/01/2007 prayed the Honourable court to inter alia grant Claimant leave to apply to quash the decisions and recommendations of the council of the 1st Defendant, whereof punitive measures were recommended against him without fair hearing and any evidence to support same and the letter dated 26i01/2007, the honourable court in suit no FIIC/KD/CS/14/2007 granted all his prayers and ordered inter alia that the leave granted, operate as a stay of effect and operation of the entire proceedings, decisions and recommendations of the emergency meeting of the Council of the 1st Defendant and punitive letter dated 26/01/2007 written by the 5th1 Defendant to Claimant pending the determination of the suit. See EXIIIBITS PW32 and PW4O. Consequent, Claimant instituted suit no: FHC/KD/CS/25/2007 praying the court inter alia for leave to apply to remove to the court for the purpose of being quashed any decision or recommendations of the Defendant’s AP&DC of the meeting of 12/02/2007 ,so far as it affects the Claimant on the alleged police report and any decision of the 2nd Defendant on account of the alleged police report, petition and any other document whatsoever for want of fair hearing and lack of any trial whatsoever. Claimant also prayed the Court for leave to apply for an order prohibiting the Defendants, either by themselves, their agents, servants and privies, whatsoever and howsoever from enforcing the recommendations and decisions of the 1st Defendant’s AP&DC of 12/02/2007 in any manner whatsoever and howsoever, from tampering with his conditions of service, salary, official residence and other benefits of his status as a bonafide employee of the 1st Defendant, pending the determination of the substantive suit. The honourable court inter alia granted all Claimants’ prayers. See EXHIBITS 31 and 35. Also the Claimant by a Motion on Notice dated 27/02/2007, and in another suit no: FHCIKDICS/4412007,applied to the Court praying inter alia for an order of interlocutory injunction restraining the Defendants, jointly and severally by themselves or through their agents, privies servant and organs, from tampering with Claimant’s conditions of service, salary, official residence and other benefits of his status as a bonafide employee of the 1st Defendant, pending the determination of the suit; and an order directing the Defendants jointly and severally to pay all outstanding allowances and financial benefits. In response to Claimant’s motion, the Defendants after the dismissal of the Claimant filed a counter affidavit sworn to by one Sani Yusuf Magaji on 14/03/2007 alleging inter alia that the issuance of the warning notice dated 16/02/2007 to the Claimant was for his alleged absence from duty on 15/02/2007 when he was before the court. Despite the orders of the court still subsisting against the Defendants and the substantive Motions on Notice all pending for determination before the honourable Court the Defendants without affording the Claimant any hearing whatsoever and with total disregard and disrespect to the honourable court, on the 06/03/2007 purported to dismiss the Claimant from the service of the l Defendant with immediate effect for alleged absence from duty which the Defendants claim amounts to gross misconduct. He submitted that this is a procedural contempt of Court. He also referred to Chapter 16.3(e) and EXHIBITS PW14, 26,34,36,38 and 39. He submitted that orders of Court duly issued or made must be obeyed and complied with if rule of law is to be supreme, in reality. See GOVERNOR OF LAGOS STATE v. ODUMEGWU OJUKWU (1986) 1 NWLR (PT. 18) 621. Hence, whether Government, its agencies, or individual ignore Court Order, they play with fire. In EHOLOR vs. IDAHOSA (1992) 2 NWLR V (PT. 223) 323 @ 329, it was held that; A party to a case who is required by a clear and unambiguous order of Court to do or refrain from doing something, and who pretends not to know or to understand the requirement of the order is only playing with fire and should not complain of burnt fingers... It is trite and all judicial decisions on this point support the proposition that none of’ the parties in litigation before a court of law is allowed to lake the law into his own hands and foist a fait accompli on the court thereby rendering it impossible for the court to arrive at a decision one way or the other on the merits of the issue before it or render any decision it may take nugatory or futile. To allow court orders to be disobeyed would he to tread the road toward anarchy. If orders of the court can be treated with disrespect as in the action of the Defendants, the whole administration of justice is brought into scorn. If the remedies that the courts grant to correct wrongs can be ignored, then there will he nothing left for each person but to take the law into his own hands. Loss of respect for the courts will quickly result into the destruction of our society. Counsel argued that “He, Who Comes Into Equity, Must Come With Clean Hands”. The well laid down position of the law is that anyone who is served with, or becomes aware of a valid order of court should ensure that he obeys it in full. Failure to obey a valid order amounts to willful breach of it which could lead to contempt of proceedings with serious consequences. We therefore urged my lord to nullify the act of the Defendants by reinstating the Claimant to the state of affairs before the hostility that brought the parties to court. It is also the contention of the Defendants that there was no need joining the 4th and 6th in their personal capacity since they have been sued in their official capacity. We submit that the 4th and 6th Defendants went outside their official capacity to carry out acts which are malicious, spiteful and vindictive against the Claimant. Hence they cannot claim to he under the protection of the Public officers Protection Act. See MUHAMMED v. ABU, ZARIA (2014) NWLR PT.1407 @ 500 Ratios 16-19. Assuming but without conceding that the contention of the Defendants is valid, we submit that the Defendants cannot at this point object to the joinder of the affected parties, they have waived their right to object and demand for the striking out of their names for being agents of disclosed principal, more so when they ridiculed the court by refusing to comply with the order of the court. See also ONABANJO v. EWETUGA (1993) 4 NWLR. PT.288 @ 445, MOBIL PRODUCING NIG. UNLTD .v. MINOKPO (2003)18 NWLR PT.852@ 346, ASAFA FOODS FACTORY v. ALRAINE (NJG).LTD (2002)12 NWLR P1.781 @ 353 and R.O.IYERE v. BENDEL FEED & FLOUR MILL LTD (2009)37 NSCQR 290 320 Ratio 5. He urged the court to answer the issue 2 in the negative, hold and declare that all actions taken by the Defendants during the pendency of the suits earlier mentioned are invalid, null and void as same was done in the face of subsisting court orders. He urged this Honourable Court to order the Defendants to return to the status quo ante bellum by restating the Claimant and paying him all his entitlement during the period of the purported termination/dismissal of the employment. Issues 3 and 4 Whether having regarded the totality of the evidence of DW2 it will be justified to conclude that his evidence was substantially contradictory, inconsistent and vague. Whether the claimant has by credible and satisfactory evidence proved his case against the defendants and thereby entitled to the releifs sought. It will be more convenient to argue 4ssues 3 and 4 hereinabove formulated together. Counsel then submitted that a piece of evidence is contradictor to another when it asserts or affirms the opposite of what the other asserts and not when there are some minor discrepancies in details between them. Contradictions between two pieces of evidence goes to the essentiality of something being or not being at the same time, whereas minor discrepancies depend rather on the persons’ astuteness and capacity for observing meticulous details. He submitted that the DW2 testimony is tainted with contradictions and inconsistencies, this we submit goes to the issue of his credibility as a witness. This witness we submit is not credible and his evidence should be dispensed with. The DW2 also misdirected the council and contradicted himself when he stated in his warning letter (EXHIBIT PW13) what the Claimant never stated in his reply to query (EXHIBIT PW8) that Claimant took permission but that the Claimant informed the Deputy Provost (EXHIBIT ‘ PW12). It is trite that the court is not obliged to believe evidence of witness of the same party that contradict each other on material particulars as the court cannot pick and choose who/which to believe. See NJOKU v. JONATHAN (2012)8NWLRPT.1304 @139. The Defendants also contended that the Claimant ought to have filed Exit Form before appearing before the court on the 15/02/2007. Contrary to defence claims approval on exit form is not required when absence does not exceed one working day, Chapter. 12.8.1. Pages 64-65, While Ch.12.8.2 of Exhibit PW4 referred to absent from work and leave of absence. In claimant’s case he reported to work, inform subordinates and Deputy Provost in the absence of the Provost before going to court and claimant returned in barely four hours later and reported to the Provost (4th defendant) at 1 .48pm on 15/02/2007.The DW2 under cross examination corroborated the fact that staff are not required to fill Exit forms for few hours outings from the college. It is the counsel submission that any fact in the statement of fact that is not specifically denied in the statement of defence will be deemed to have been admitted. It is also improper for the Defendant to plead in a manner in which his denial is evasive. The Defendant must answer all the allegations without being evasive. The learned counsel also submitted that the claimant is eminently qualified to benefit from all the allowances and payments as enumerated in the suit No: FHC/KD/CS/44/2007 i.e. EXHIBIT PW14 as a medical practitioner and a part time lecturer in the 1st Defendant. See Chapter 8.2 (m) (r) of the conditions of Service EXHIBIT PW4. Chapter 1 (25) of the Federal college of Education condition of service (EXHIBIT PW4) incorporated the Medical Practitioner and Dentist Ordinance Vol. IV. laws of Nigeria 1948. By this reference the PW4 has incorporated the meaning of who a medical practitioner is and by implication the benefits or allowances accruable to a medical practitioner in one Federal government institution ought to be same in another. The Claimant as a medical practitioner in the 1st Defendant institution is entitled to benefit from all federal government approved allowances for medical practitioners’ applicable in all federal institutions. He submitted further that the Claimant’s medical allowances and other benefits were a condition of his employment. These allowances were based on approved government circulars on health professional allowances and were recognized and approved by NCCE for implementation in FCE Zaria. And since employment of Claimant and prior to the appointment of the 4th Defendant, health professional allowances were stated, approved and implemented in favour of the claimant. However, in September 2003 which was barely six months into the tenure of the 4th defendant all Claimants’ medical allowances were unilaterally stopped. See EXIIIBITS PWI, PW2, PW3, PW14 (letters attached therein) PW22, PW23. The Claimant by EXHIBIT Dl applied for part-time lectureship in 1995 which was approved by the provost and continued lecturing on part-time basis until his purported dismissal on the 6/03/07. By Exhibit Dl the Claimant in his application stated thus: “I am applying honorary part-time lecturer and do not expect month/v financial benefit”. He submitted that the Claimant never said he should not be paid allowances accruable to part-time lecturers but that he should not be paid monthly salary i.e. monthly financial benefit. It is our contention that monthly financial benefit which is monthly salary is not the same as earned allowances as a lecturer whether part-time or full time. DW2 under cross-examination testified that allowances like teaching practice allowance is not monthly entitlement to all academic non academic teaching staff but available to only those who participated in it. It is our submission that the onus is on a plaintiff to prove that the termination of his appointment is unlawful. In order to discharge this onus, he must prove: a) That he is an employee of the defendant; b) The terms and conditions of his employment by placing before the court the terms of the contract; c) Who can appoint and who can remove him; d) In what circumstances the appointment is determined by the employer and the breach of the terms. See. OKOMU OIL PALM CO. LTD. V. ISEHIENRLN, (2001) 6 NWLR (Pt. 710) 660; EMOKPAE v. UNIVERSITY OF BENIN (2002) 17 NWLR (Pt. 795) 139; (Pt. 150) 356; ADENIRAN v. N.E.P.A. (2002) 14 NWLR (Pt. 786) 30 136. He submitted that the Claimant from the totality of documentary evidence tendered by him shows that he was an employee of the Defendant. Furthermore the condition of his employment was also tendered in evidence i.e. exhibit PW4. It is quite clear from the said Exhibit that it is the council following due process has the right or power to determine the employment of the Claimant. The circumstances of the termination of the employment from the evidence before this court should not be perplex with established facts between the parties. A party should not be allowed to clog the wheel of justice by mischievously raising established facts between the parties in order to becloud what is otherwise a well known fact to both parties and the Court. It is the counsel submission that this Court is bound by its record as this is trite law and by no stretch of imagination should the defendants be allowed to in the face of the glaring and manifest fact that there were orders of Court restraining the Defendants from determining the employment of the Claimant. The defence of the defendants that the Claimant’s employment was determine by the College Council in the face of the clear, unambiguous and unequivocal order of Court restraining them from terminating the Claimant’s employment to say the least is a clear affront on this Court and the judiciary at large. He submitted that it is callous for counsel who was in court and had acknowledged service of the requisite court processes including an order restraining the Defendants from taking further step to argue that such persons who took active part in clear violation of the order of Court are not necessary parties to this suit. He further submitted that the power of this Court to deal with this issue has the judicial blessing of the Supreme Court see EBHODAGHE V OKOYE (2005) 4 WRN 1. We are also minded to rely on the record of this court that the orders made were served on the Defendants. In NNPC V. TIJANI (2007) WRN 35 17 @ 27-28,it was held that the court had an abiding duty to take judicial notice of contents of the court’s record including its orders. From the evidence adduced during hearing of this suit it is clear that the Defendants willfully failed, neglected and/or refused to comply with the order of the court restraining them from acting in the manner they acted by terminating the employment of the Claimant during the pendency of the suit and clear orders of Court. He submitted that the Claimant has in respect of this suit proved his case on a balance of probabilities or on preponderance of evidence. It is trite law that a Claimant must succeed on the strength of his case and not on the weakness of the defence; however, if the evidence of the defence supports the case of the Claimant, he is entitled to rely on the same in proof of his case. See CIVIL DESIGN CONSTRUCTION NIGERIA LIMITED vs. SCOA NIGERIA LIMITED (2007)2 SCNJ at 266 and OTUNBA ABDULLATEEF OWOYEMI vs. PRINCE YENUSA OLADELE ADEKOYA & ORS (2003) 12 SCN.J, 131 at 154. In conclusion on the preponderance of evidence adduced by the Claimant, this Honourable Court and urged to enter judgment for the Claimant in respect of his respective claims in this matter. It is the counsel submission that the case of the Claimant deserves to succeed on the balance of probabilities of the totality of the evidence adduced by him. This is the Defendants reply on points of law. The Claimant filed a 30 pages (rather bulky) reproducing the pleading therein. He also raised certain issues that are fresh and requires our comments and attention. To begin with, evidence and not pleading guides the Court in arriving at a decision. No matter how well facts are pleaded, if evidence of such facts are not led or such evidence when led was discredited, the case of the Claimants should fail. It is abundantly clear from the evidence led before the Court that the Claimant was dismissed from the services of the 1st Defendant for absenting himself without authorization which amounts to gross misconduct. The Claimant have committed other acts of misconduct which had become subject of other disciplinary actions, but such did not lead to dismissal So, there is no need to further flog those issues. The Claimant in paragraph 11 pg 7 of the address stated that the Claimant went to Court for his case on 22/2/07 after informing Dr. Omoniwa who was the Deputy Provost and Head of the Nurses (one Mrs. Bello), However these officers had denied such. It was therefore incumbent on the Claimant to call these persons to testify. Failure to do so is fatal to the case of the Claimant. It also amounts to withholding of evidence. In AGBI Vs OGBEH (2006) ALL FWLR pt 329 at 986 – 987 the Supreme Court held that: …. It is enough if sufficient evidence is called to discharge the onus of proof. See for example ALONGE Vs POLICE (1959) 4 FSC 203, Section 178 of the Evidence Act. The danger however is that where a plaintiff chooses to call only witness out many available witness, he will have himself to blame if anything goes wrong with the sole witness because his entire case will collapse… it amounts to withholding of evidence under Section 149 (d) of the Evidence Act for the plaintiff to have failed to call the material witnesses.. . Counsel urged the court to apply this ratio and dismiss the Claimant’s case. Also, in page 8 paragraph 16, the Claimant seems to be misleading the Court. The absence of the Claimant on 6/3/2007 was not the reason for his dismissal. The Claimant went to the EFCC on that day. Rather, it was his absence from duty without authorization or permission on 22/2/07 that led to his dismissal. The Claimant had forcefully argued that his appointment is statutory. He contended seriously that the Claimant’s appointment is not statutory. Splendid that both agree that the statue that establishes controls and regulate the 1st Defendant is the Federal College of Education Act. To start with, we submit that an employment had statuary flavour if the statute provides for it. Any condition of service drawn up by the Board or Council has no statutory flavour not being a statute. See OLANIYAN VS UNIVERSITH OF LAGOS 91985) 2 NWLR (pt 9) pg. 599 Even in the case of SHITTA-BEY VS F.P.S.C. (Supra) cited by the Claimant, the position of the law is the same. Counsel submitted that the Claimant was appointed as a Medical Officer and rose to the rank of Medical Director. All of that have no recognition by the FCE Act. He further submitted that the only appointments recognized by FCE Act are those of the other post, Deputy Provost Registrar, Librarian and Academic Staff of the College. Any other post or employment is non-statutory. See again WAEC VS OBISESAN (2009) ALL FWLR (pt 484) pg. He submitted further that it is not surprising that position of the Claimant is not recognizes only those positions that are germane to the purpose of the College. It is therefore out of place for the Claimant to claim that his appointment is statutory, hence its termination must follow the provision of the statute. It is not the content of the appointment letter that gives an appointment statutory backing, rather it is the provision of the statute. To hold otherwise means that the College, Council, Board etc could alter, add to, reduce or amend the Act. This is a duty that is vested on the Legislature. Therefore, the relationship between the Claimant and the 1st Defendant is that of Master and Servant simple. One issue that is related to the above issue is that raised by the Claimant on page 11 paragraph 4.11. The Claimant argued that the Claimant’s dismissal should have been guided by Chapter 6.8 of the condition of service (Exhibit PW4). The Defendants however argued that chapter 7 of Exhibit PW4 is the appropriate chapter. My Lord, having shown that the appointment of the Claimant is that of simple master-Servant and having no statutory protection, a master can dismiss his servant under the common law, and when doing so, he must only ensure that he was given an opportunity of being heard. The Claimant was queried and he responded to that query. All these are before the Court, particularly that the deputy Provost and Mrs. Bello all had denied knowing the whereabouts or authorizing the exit of the Claimant from the College on 15/2/2007. The provision of chapter 7 of the college condition of service deals with summary discipline/dismissal which is the exact situation of the Claimant since he is not a statutory employee. Chapter 6 is applicable to statutory employees. Counsel had agreed earlier that even though the appointment of the Claimant is common law regulated and is subject to his right to fair hearing. The principles of fair hearing that the Claimant is entitled to is however not such an elaborate one as such affordable to a person under a conventional Court trial. What is required is that the Claimant be informed of the wrong and permitted to respond to same. The Claimant was formally queried and he responded, in writing. The 1st Defendant through its Council considered the response vis-à-vis all other issues relating to the Claimant and dismissed him. We submit with respect that this satisfies the requirement of the kind of the right of fair hearing available to an employee who is facing allegation of misconduct before an administrative body. He referred the court to BABA Vs AVIATION (1991) 2 NSCC pg 145 at 154 lines 31-35. In the case of BABA Vs AVIATION (supra), the Supreme Court of Nigeria delineated the margin between the right of fair hearing affordable to an employee and that in the general provision of the constitution. He urged the court to resolve this issue in favour of the Defendants and against the Claimant and dismiss the Claimant’s case. The cases of HARUNA Vs UNIAGRIC MAKURDI and E. P. IDERIMA Vs R.S.C.S. relied upon by the Claimant are not applicable as they are cases on pure Public Service Rules whereas this is an employment under the common law. What is required by chapter 7.3 of the condition of service was fully complied with by the issuance of query and the response thereto. The next issue is the adequacy or otherwise of time given to the Claimant to respond to the query. There is nothing sacrosanct in the issue of time. In the first instance, available reveals that the claimant did not complain of time when he was querried for his absence without permission. In other instances, he has complained either about time or materials, so he can not claim not to know that he could request for more time. Having replied, the time was appropriate and enough. On the case of the alleged petition to the Minister which became an issue before the Police, counsel submitted that in line with the decision in BABA V AVIATION (Supra) sending a Lawyer to such an in-house committee was uncalled for. That explains why the counsel was turned back. The claimant formulated issues on admissibility of documents including the Police report. The ground of this issue is rather interesting i.e that the Registered of the Federal College of Education, Zaria is not a competent person to certify the document since he was not the author/maker of it. This is misplaces argument. Exhibit D7 authored by the Area Commander of Police, a public officer and sent to the Federal College of Education, Zaria another public officer. Dr. Jibril Lawal is the Registered of the College and custodian of all such documents of the College. To say that he is not competent to certify the document is to turn the law upside down, with respect. The reality is that the report (original) is in the custody of the FCE, Zaria and the Registered should therefore be the most appropriate person to issue a certified copy even though the Police can as well do same. Counsel urged the court to discountenance that argument. The case of TABIK INVESTMENT LTD V GT BANK PLC is therefore distinguished and thus inapplicable. See Section 104(1) & (3) of Evidence Act 2011. CAP E 14. The second issue formulated by the claimant relates to the dismissal of the claimant during the pendency of Suit No. FHC/KD/CS/14/2007. One is comfortable that when a case is transferred, it is commenced de novo. The dispute had been in existence before the order of transfer. However, the different suits that were ordered to be re-constructed into a single suit i.e. Suit No. FHC/KD/CS/52/2007 had different and distinct causes of action, each arising from different transactions. It is unthinkable that the claimant who went to court to challenge the different actions by the College could believe that he has by such suits secured a life long immunity against future misconducts that he may commit. The dismissal is completely disconnected from the facts of the former cases that were pending in court. The cases of GOVERNOR OF LAGOS STATE V OJUKWU, EHOLOR V EHOLOR, BABATUNDE V OLATUNJI cited by the claimant are all inapplicable. In those cases, the orders of court or pendency of the action in court were on the subject matter without any new situation. The situation of the claimant is different in the sense that he was dismissed for absenting himself from duty without permission. Counsel urged the court to resolve the issues against the claimant and dismiss the claimant’s claims. Counsel also urged that the 4th and 6th defendants were the Provost and Registrar of the 1st defendant respectively. They carried out their duties which gave rise to the action in their official capacities see the Evidence of PW1 and DW2. However, the claimant argued on page 21 – 22 paragraphs 5.10 and 5.11 that these persons were not protected by the Public Officers Protection Act. The point we are making was missed by the claimant. What were argue is that these persons could not acquire personal liability for their official conducts more so that their employers 1st & 2nd defendants had not denied authorizing their actions. Also, it is evidence that these persons are in fact no longer occupying such positions and are no longer in the employment of the 1st defendant. It is trite that an agent cannot be sued together with the principal since both of them cannot be liable. It is only where the principal denies authority that the servant may be liable. There is no doubt that the 4th and 6th defendants were undeniably servants of the 1st and 2nd defendants. It is therefore, unlawful to maintain the suit against them. We urge my lord to strike out the name of the 4th and 6th defendants. He referred the court to A.C. B. V APUGO (1995) 6 NWLR (PT. 399) PG. 65; IFEANYI CHUKWU V SOLEH BONEH (NIG) LTD (2000) 1SCN QR 469. The issue 3 and 4 are proliferated. In substance, they are accommodated in the issue 1 and 2 because they border on assessment of evidence. Be that as it may, those events that are the subject matter of this suit happened in 2007. It is the law that where a witness makes contradictory remarks, it must be such as to affect the subject matter he is giving evidence on before the court can hold such against such a witness. Evidence of a website, personal data of the witness have nothing to do with the subject matter of this suit, same for phone numbers. In fact, many people have phobia for numbers, such that they cannot call out their phone numbers without aid. We need not join issues again with the claimant on issue of whether or not he reported for work or informed the deputy Provost. We have said so much on that earlier. Suffice to say though that if it was true that the claimant resumed for work, his Chief Nursing Officer would have known of his whereabouts. This explains why the claimant refused to call her even though her evidence is very important for the claimant’s case. On the whole, we submit that there is no sufficient evidence that can sustain the claims of the claimant and the provision of the various laws and authorities are against the position of the claimant. The claimant’s claim should fail and ought to be dismissed whereas the defendant’s case be upheld. In the overall interest of justice, he urged the court to dismiss the case of the claimant and uphold the defendants’ defence while striking out the 4th and 6th defendants’ names. I have carefully read the submissions of parties, authorities cited and the oral evidence given in this suit. The issue for the court to determine is:- Whether the claimant has proved his case to be entitled to the reliefs sought. In the amended statement of facts the claimant is claiming 16 reliefs against the defendants contained in his complaints. It is necessary to state in brief of the facts of this case the claimant was employed by the 1st defendant the Federal College of Education (FCE), Zaria as a Medical Officer I vide a letter dated 3rd February, 1993. The claimant appointment was confirmed by the defendants by a letter dated 19th November, 1996 and he rose to the position of Director of Health Services Department. By a letter of 6th March, 2007, the claimant was dismissed from the service of the defendants on the ground that he did not seek for permission of the Provost before leaving the College. In respect of the claimant claim’s (a) requesting for the Order of nullifying the punitive decision recommendation of the council of the 1st defendant at its emergency meeting held on 25th January, 2007 against the claimant without fair hearing and during the pendency of suit FHC/KD/CS/25/2007. While it is the right of the employer to discipline its erring staff, the employer must acts within the law and observes the rule of fair hearing. The law is that where a body, whether judicial, quasi judicial, administrative or executive in inception act judicially in the sense that is to determine the civil rights and obligations of a person, or to find him guilty or liable of a fault, then he must be given a fair hearing before the issue can be properly decided. The essence of fair hearing is a constitutional right and cannot be waived. It is on record that the claimant was issued a query on the 24th of January 2007 (Exhibit PW42) he was given 24 hrs within which to answer to an alleged petition to the Minister of Education. The claimant complained that no copy of the alleged petition accompanied the query. The claimant was not given the police report to see and to react to the allegations stated in the report before he was dismissed. The claimant was invited to appear before the Admin Promotion and Disciplinary Panel AP & DP on the alleged Police report on smuggled petition at 8.48am on 12/02/07 and to appear by 9.30am of the same date 12/02/07. In other words, the claimant had less than one hour to prepare his defence. When the DW2 Mr. J. S. Danjuma was asked under cross examination whether the police report was obtained the same date on 12th February, 2007, the DW2 replied the report came before 12th of February, 2007. The law is that an employee who is accused of misconduct must be given a formal notice of such wrong doing and a hearing on that specific act. The employee is entitled to call his witnesses if he had any and they must be heard. He should be present when witnesses are testifying against him. He must be given adequate time to prepare his defence. Time to read through his papers get his witnesses. If this procedure is not adopted it would amount to a denial of natural justice Nze V N.P.A. (1997) 11 NWLR (Pt. 528) Pg. 210. From the facts of the case it is clear that the claimant was given less than one hour for him to appear before the AP & DP on the 12th February, 2007. In other words, he was not given adequate time to prepare his defence and also denied him the opportunity to see the alleged petition he was accused of sending to the Ministry of Education. In my view the council acted in a haste what can be deduced from the action is that they were hell bent in getting the claimant out at all cost. If not what is the hurry about? They ought to realized that they have not acted in good faith is using the warning of Exhibit PW45 when the claimant was not given adequate time to appear to defend himself and also denied a copy of the said petition. For these reasons the warning letters is hereby set aside. Furthermore, on the submission of the claimant that Exhibit D7 is inadmissible document and it should be discountenance because it has no evidential or probative value because it was not tendered by the maker of the document. After a review of the claimant submission it is my view that the claimant submission is correct and acceptable, the defendants ought to have invited the Nigeria Police to tender the document, since it emanated from them. For this reason the document Exhibit D7 is hereby expunged from the record of the court. The position of the learned counsel for the defendants that the 4th & 6th defendants that is the Provost, and the Registrar of the 1st defendant respectively cannot be sued on their personal capacity is correct. This is because the action they took that gave rise to the suit occurred in their official capacities. Their Principals 1st & 2nd defendants have not denied their actions. For these reason their names are hereby struck out as parties to the suit. The claimant’s claim (d) (e) and (f) as reproduced below will be considered together:- d. An Order setting aside and/or nullifying the notice of dismissal letter dated 06/03/2007 issued by the defendants to the claimant as same was issued during the pendency of Suit FHC/KD/CS/44/2007 and without compliance with the defendants’ laws, conditions of service and without any fair hearing whatsoever. e. An Order reinstating, the claimant to his employment and status as the Director of Health Service of the 1st Defendant, his salaries annual increment and his official residence and other benefits and prerequisites of his employment in the 1st defendant, from the date of his purported dismissal from the service of the 1st defendant to whatsoever Judgment is delivered in this suit. f. A declaration that the Public Service Rules 2008 does not apply to the claimant, as 1st defendant is a statutory body with its own rules, regulations and laws. The claimant’s contention on the issues raised above is that his employment is protected by statute and therefore enjoy special legal status over and above the ordinary common law of Master and Servant relationship. In this case the Federal College of Education conditions of service of October 1992 stated under introduction that the document is one setting out the rights, privileges and prohibitions governing the relationship between the employer and the employee. The National Commission for Colleges of Education therefore present the following regulations and guidelines called Terms and Conditions of Service for staff. The following conditions of service are issued for the adoption by the Authority of the National Commission for Colleges of Education and the Governing Councils of Federal Colleges of Education. Under title: it is stated that Exhibit PW4 should be cited as the staff regulations governing the conditions of service for the Federal Colleges of Education to be referred to as Terms and Conditions of Service for staff. Having stated this, it is my view that the employment of the claimant enjoys statutory flavour. It follows that an employer of an employee whose appointment has statutory flavour has no right to determine his appointment at will because he does not hold the appointment at the pleasure of such an employer. To determine the appointment, the employer has a duty to comply with the conditions precedent laid down in the conditions of appointment failing which such termination will be held ineffectual or invalid. What is left to be determined is whether the procedure laid down in the applicable statues was complied with in the removal of the claimant. It is trite that an employer has the right to discipline any erring staff in his employment including the claimant, but this must be in accordance with the terms of his contract of employment. The provisions applicable to discipline of staff in the Federal Colleges of Education as provided in the staff condition of service are provided for in Chapter 6 of the document. Chapter 6.1 of the condition of service, provides that the Provost as the Chief Executive of the College has the power to exercise general authority over staff and shall have responsibility for discipline in the college. Section 6.8 of the conditions of service provides for conditions of service under which an employee shall be dismissed. Section 6.11 provides that in all cases of discipline, it is essential that the principle of natural justice be adhered to. In other words, the Section guarantees staff fair hearing before he can be removed from service. Furthermore chapter 7, provides that a member of staff shall not be dismissed until he has been given the opportunity to submit a representation in writing through the Dean of School/Head of Department/Section and the case has been fully investigated and determined with due opportunity of a fair hearing by the appropriate disciplinary committee. Applying this Sections to the case at hand, the claimant was dismissed by a letter, dated 6th March, 2007 (Exhibit PW5) from the services of the defendants for the following reasons:- The decision to dismiss you was predicated on the fact that you have been absenting yourself from duty without permission thereby endangering the lives of your patients. These constitute gross misconduct. The law is settled that an employer can dismiss his employee for good or bad reasons or for no reasons at all. But where he gives reasons for the dismissal the onus is on the employer to justify his reason. The event that eventually led to the dismissal of the claimant happened on the 15th of March, 2007, when he traveled to Federal High Court, Kaduna to attend the case he filed against the college coming up that day. The grouse of the defendants against the claimant was that he left the college for Kaduna without seeking for permission. The claimant however, said he sought to inform the Provost of the case coming up that day but she was not in the office, and that he got in touch with the Deputy Provost on his GSM Phone this the Deputy Provost was said to have denied. The claimant returned to the college about 1.30pm the same day. The Chief Nursing Sister Officer informed him that the Provost had looked for him. He immediately reported to the office of the Provost who asked him of where he had been and he informed her he went to attend the court at kaduna. By 3.33pm the same date the claimant received a query requesting him to explain where he had been without permission. This he responded to. The claimant was then dismissed on ground “of absence from duty without permission. It is clear that the claimant did not obtain permission before leaving the college for Kaduna that day. What does the conditions of service provides in respect of officers leaving the office during office hours. Chapter 12.8.1 of the college conditions of service provides in respect of absent from college or other approved place of work during Semester/Term states thus:- Members of staff who intends to be away from duty or from their place of work, or college research or other business shall, if such absence shall, if such absence does not exceed one working day seek the approval of the Head/Head of School and where appropriate, the approval of the Provost where absence will exceed one working day. In dismissing the claimant, the defendants said they relied on the provision of chapter 19.2.2(ix) of the conditions of service. This Section states thus:- Activities unrelated to normal college duties shall not be untaken by non-academic staff during working hours expect with the expressed permission of the Provost. In the defendants joint final address they stated that the claimant was away to Kaduna to attend the court case against the 1st defendant from 8.30am to 1.48pm. In other words, the claimant was away for about 5 hours. He returned to the college after the court session around 1.30pm. What this means is that the claimant’s absence from the college did not take a whole day to warrant him taking permission from the Provost he was responsible to, even though he made attempt to do this. Going by the provision of chapter 12.8.1 of the staff conditions of service, the claimant has not exceeded one working day. It is also on record that the claimant claimed he sought to inform the Provost but she was not in the office, this fact has not been disproved. Furthermore, the provision in chapter 19.2.2(ix) the defendants relied upon has not worked against the claimant. What the claimant went for at the Federal High Court, Kaduna is related to issues affecting the claimant and the defendants. What the claimant went for in Kaduna was a matter related to the College. The defendants claimed the claimant was being sought for urgent official assignment. What this urgent assignment was, was not disclosed to the court, how it has affected the college negatively has also not been disclosed and whom the assignment was given to, to carryout was also not stated. The defendants have not also informed the court of any bad incident that occurred during the absence of the claimant for the period he was out of the clinic, when the 2 witnesses of the defendants Mr. D. J. Danjuma, was asked under cross examination by the claimant, some questions he answered thus:- Counsel - In paragraph 20 of your witness statement on Oath. You said the 4th defendant sent for you that the claimant was wanted for urgent official matters. What is this urgent official matters? Witness - I can’t remember. Counsel - Were you ever told the urgent matter that you cannot remember. Witness - I was told, I can’t remember. Counsel - Was somebody going to die or about to die and they were looking for him. Witness - No, nobody wants to die. It is very clear that the defendants action cannot be justified in dismissing of the claimant from the employment of the 1st defendant for the reason being that he went to attend court sitting in a matter connecting him and the defendants. The claimant did not breach any of the provisions of the rules and conditions of service binding parties. It is my view therefore, that the dismissal of an officer whose employment is clothed with statutory flavour must be determined in accordance with the terms and conditions of service, hence the dismissal will be held in effectual or invalid. It is also on record, that the defendants went against an order of competent court that status quo should be maintained until the case is disposed of. The letter of dismissal dated 3rd March, 2007 is hereby set aside and the claimant is re-instated to his position as the Director of Health Services of the 1st defendant. It therefore, follows that the claimant is entitled to salaries and allowances and other benefits prerequisites of his employment, from the date of his purported dismissal from service of the 1st defendant. On the claimant’s claims g (i) (ii) (iii) (iv) (v) & (ix) the claimant is complaining about non – payment of allowances captured Exhibits PW22, PW23, and PW24. The claims have already been stated above. The defendants responded to the claimant’s complaints through the Bursar’s who replied in Exhibit D8 as response to the claimant’s letter of 28th July, 2000. By the Bursar’s explanation that the Executive Secretary of the National Council of College of Education pronouncement that the payment was outside the HATISS Circular as illegal. It is not for the court to grant the allowances or force the college to pay. On this issue the court declines to approve the claimant’s claims g – (i) – (v). In respect of claimant’s claim for N500,000.00 as general damages for wrongful/unlawful dismissal from the services of the 1st defendant. The law is that the claimant has been reinstated to his position as Medical Director of the 1st defendant he cannot therefore claim damages as the same time. Claimant’s Claims - N864,000.00 being arrear of part - time from 1993 - 2006 on this issue the defendants submitted that the claimant was not an academic staff but opted to teach pro – bono and without form of remuneration. The claimant’s application read: I am applying for honorary part – time lecturer and do not expect monthly/financial benefit. In my view, the claimant should be honorable enough to stand by his words. If he had wanted to be paid any allowance, he ought to have stated this in his application the defendants would have had the opportunity to decide whether to offer him the appointment or not. The court therefore, declines to grant the request. On the claimant’s request for the refund of N117,181.55 being his contribution to the National Housing Scheme between January 2001 and January 2003 but not reflected in this book. It is the court’s order that the 1st defendant must correct this anormally by forwarding or reflecting the correct amount deducted from the claimant’s income. This must be done within the 3 months of the claimant resumption to the college. On claim g (viii) for N40,997.25 being refund of excess tax deductions between January 2005 to February 2007. This in my view should be referred to the tax office. The only body that can refund excess tax is the Federal Inland Revenue Services. From the foregoing, the claimant’s claims succeed in part as granted above and the claimant should be reinstated forthwith. Judgment is entered accordingly. ______________________________ HON. JUSTICE O. A. SHOGBOLA JUDGE.