Download PDF
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE OWERRI JUDICIAL DIVISION HOLDEN AT OWERRI BEFORE HIS LORDSHIP HON. JUSTICE O. Y. ANUWE Dated: April 22, 2015 SUIT NO. NICN/EN/81/2013 Between Chief Henry I. Eke - Claimant And 1. The Governor of Imo State 2. The Attorney General and Commissioner for Justice, Imo State 3. The Imo State University 4. The Vice Chancellor, Imo State University Defendants 5. The Council of Imo State University 6. The Acting Vice Chancellor, Imo State University (Professor Ukachukwu Awuzie) 7. The Registrar, Imo State University (Barr. Ifeanyi G. Aniche) Representation: N. Epelle Esq.; with him, Rt. Hon Noel Aguocha Chukwukadibia and I. K. Udeozor esq. for the Claimant Kelechi Ejiofor, Snr State Counsel, for the 1st and 2nd Defendants/Applicants N. H. Ochei esq. for the 3rd to 7th Defendants JUDGMENT This action was initially commenced by way of Originating Summons dated the 7th day of January 2013 and filed on the 18th day of March 2013, wherein the Claimant sought the determination of the following questions of law and undisputed facts: 1. Whether upon the construction of Section 169 of the Evidence Act, 2011, and exhibits 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20, being documents exhibited to the Claimant’s affidavit in support of the originating summons, the Defendant are not stopped from dismissing the Claimant from his employment as Senior Technologist II in the Department of Microbiology in the 3rd Defendant University, the Defendants having by their act(s) and conduct caused the Claimant to believe in a state of affairs to wit that he (the Claimant) has been re-instated to his position as Senior Technologist II in the Department of Microbiology in the 3rd Defendant University, consequent upon which he (the Claimant) withdrew his Suit No. HOW/181/2010, filed against the Defendants in the High Court of Imo State. 2. Whether upon the construction of section 17(3) of the Imo State University Law No. 5 of 2004, Regulations 14 and 27 of the Imo State University, Owerri, Regulations Governing The Conditions of Service of Senior Staff, 1995 and section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the 7th Defendant or any of the Defendants has powers to dismiss the Claimant from his employment as Senior Technologist II in the Department of Microbiology in the 3rd Defendant University without due compliance with the statutory provisions guiding the Claimant’s employment with the 3rd Defendant University. Upon the determination of the above stated questions, the Claimant sought the following reliefs from the Honourable Court, to wit: a. A Declaration by the Honourable Court that the Defendants cannot renege from their agreement with the Claimant as contained in the letter dated the 28th day of May, 2012, the Defendants having by their act(s) and conduct caused the Claimant to believe in a state of affairs created by the said agreement to wit: that he (the Claimant) having discontinued his action in Suit No. HOW/181/2010, filed against the defendants in the High Court of Imo State, has been reinstated to his position as Senior Technologist II in the Department of Microbiology in the 3rd Defendant University. b. A Declaration by the Honourable Court that the purported dismissal of the Claimant’s employment as Senior Technologist II in the Department of Microbiology in the 3rd Defendant University, as contained in the purported letter of dismissal dated the 8th day of October, 2012, and signed by the 7th Defendant (Barr. Ifeanyi G. Aniche, Registrar of Imo State University), is unlawful, illegal, irresponsible, void and in utter violation of the statute(s) and regulation(s) guiding the Claimant’s contract of employment with the 3rd Defendant University. c. A Declaration by the Honourable Court that the purported dismissal of the Claimant’s employment as Senior Technologist II in the Department of Microbiology in the 3rd Defendant University, as contained in the purported letter of dismissal dated the 8th day of October, 2012, and signed by the 7th Defendant (Barr. Ifeanyi G. Aniche, Registrar of the 3rd Defendant University), is unlawful , illegal, irresponsible, void and in utter violation of the Claimant’s constitutional right to fair hearing, the Claimant’s employment as Senior Technologist II in the Department of Microbiology in the 3rd Defendant University having been purportedly dismissed without giving him an opportunity to be heard. d. A Declaration by the Honourable Court that the Claimant’s employment as Senior Technologist II in the Department of Microbiology in the 3rd Defendant University, subsists. e. An order of the Honourable Court setting aside the purported dismissal of the Claimant from his employment as Senior Technologist II in the Department of Microbiology in the 3rd Defendant University, as contained in the purported letter of dismissal of the Claimant’s employment dated the 8th day of October 2012, and signed by the 7th Defendant (Barr. Ifeanyi G. Aniche, Registrar of the 3rd Defendant University). f. An order of the Honourable Court compelling the Defendants to re-instate the Claimant forthwith to his position as Senior Technologist II in the Department of Microbiology in the 3rd Defendant University. g. An order of the Honourable Court compelling the Defendants to pay to the Claimant all outstanding wages, salaries, allowances and other emoluments accruing to the Claimant from the month of June, 2009, until the determination of the suit. h. An order of injunction restraining the Defendants from further removing the Claimant from his employment as Senior Technologist II in the Department of Microbiology in the 3rd Defendant University, and/or dealing, and/or interfering with the Claimant’s employment as Senior Technologist II in the Department of Microbiology in the 3rd Defendant University in any manner inconsistent with the Statute(s) and other Conditions of Service regulating the Claimant’s employment with the said 3rd Defendant University. i. An order of the Honourable Court compelling the Defendants to promote and place the Claimant on the same grade level with his colleagues who have been in service and on which grade level he (the Claimant) would have been but for his purported dismissal from his appointment. Having heard both parties on the originating summons, the court in a ruling delivered on the 27th day of February 2014, ruled that this action was wrongly commenced by way of originating summons, and ordered parties to file pleadings in accordance with the rules of this court. The Claimant filed his Statement of Facts on the 13th day of March 2014, seeking the same reliefs as outlined in (a) to (i) above. The Statement of Facts was accompanied with the Claimant’s written statement on oath, list of witnesses, list of documents and copies of documents to be relied upon at the trial. The 1st and 2nd defendants filed their Statement of Defence vide a motion for extension of time on the 21st day of May 2014 along with their witness’s written statement on oath and list of witnesses. The 3rd to 7th defendants did not file any process. Hearing commenced on the 12th day of June 2014. The Claimant testified for himself as CW1 while Anthony Mbadinuju testified for the 1st and 2nd defendants as DW1. Hearing was concluded by the 31st day of October 2014, and the parties were ordered to file their final written addresses in accordance with the rules of this court. Parties sought and obtained an abridgement of time in this regard and the case was adjourned to 27th November 2014 for adoption of their written addresses. The 1st and 2nd defendants filed their final written address on the 20th day of November 2014. Having not met up with the abridgement of time earlier sought and obtained, Counsel for the 1st and 2nd defendants sought and obtained leave of court to file his final written address out of time. The Claimant filed his Final written address on the 24th day of November 2014. The 3rd to 7th defendants again did not file any address and opted to rely completely on the case and address of the 1st and 2nd defendants. Parties adopted their respective written addresses on the 27th day of November 2014. According to the 1st and 2nd defendants in their final written address filed on the 20th day of November 2014, the summary of the Claimant’s case is that the Claimant was employed as a Laboratory Technologist in the 3rd Defendant on the 20th day of December 2005 from where he rose to the rank of Senior Technologist II in the Department of Microbiology. Exhibits HE1, and HE2. The claimant averred in paragraph 33 of his Statement of Facts that his employment with the 3rd defendant and his dismissal from the 3rd defendant are directly governed or regulated by the provisions of Imo State University Law No. 5 of 2004 and Imo State University, Owerri Regulations Governing the Conditions of Service of Senior Staff – Exhibits HE15 and HE16. Pursuant to the powers conferred on the 1st defendant by the said Exhibit HE15, the 1st defendant in 2008 set up a Visitation Panel to look into the affairs of the 3rd defendant from 2004 to the present day as contained in the terms of reference of the visitation panel. The Panel received memoranda, conducted public hearings and received oral and documentary evidence. The claimant under cross examination on 12/6/2014 by the 1st and 2nd defendant’s counsel admitted being invited by the visitation panel and was examined by the panel contradicting Paragraphs 25, 26, 27 and 33a, b, c of his statement of facts in this suit. His insistence that his appearance before the panel was not in his capacity as a staff of the 3rd Defendant is immaterial as he understood the nature of the allegations leveled against him before the visitation panel. The panel advanced a report of its findings and recommendations to the government who considered it and took decisions contained in the Government White Paper – Exhibit HE18. That shortly after the publication of Exhibit HE18, the claimant was dismissed from service in the 3rd defendant, prompting the claimant to file the action in Exhibit HE4. Claimant asserted that his suit, i.e. Exhibit HE4 was settled out of court and he was reinstated to his position in the 3rd defendant following an invitation by the 2nd defendant in Exhibit HE6, the communication from the 2nd defendant to the Secretary to the Government of Imo State (SGI) in Exhibit HE7, the SGI communication to the 4th defendant HE8 and the letter from the Deputy Clerk of Imo State House of Assembly to the 6th defendant – Exhibit HE13. But the claimant failed to tender any document to show the terms of settlement entered between him and the 1st and 2nd defendant agreeing to the claimant’s purported reinstatement to his position in the services of the 3rd defendant. The 1st and 2nd defendants’ counsel raised objections to the admissibility of Exhibits HE6, HE7, HE8 and HE13 and urged the Court to sustain the objections and reject these exhibits on the following grounds:- a) That these are secondary evidence of official public documents which ought to be certified by those in whose custody they were obtained to qualify for admissibility. b) The claimant was neither the maker of these documents nor the documents addressed to the claimant to qualify the claimant tendering them in court. c) The claimant counsel failed and/or neglected to lay the proper foundation upon which the admissibility of these documents could have rested. d) The documents are worthless and have no probative value in law having failed to cross the threshold of admissibility under section 104(1) and (2) of the Evidence Act, 2011 and should be rejected for all that they are worth. See PA UMOGBAI & ORS. vs. PA AIYEMJOBA & ORS (2002) FWLR (Pt. 132) 192 @ 198; THE HON. JUSTICE E. O. ARAKA vs. THE HON. JUSTICE DON EGBUE (2003) 7 S.C. 75 165 @ 82, 84. The claimant stated that he resumed duty on 4th day of June, 2012 and received salaries for three months before the 3rd defendant through the 7th defendant on 8th day of October, 2013 strangely, surprisingly and irresponsibly dismissed him from his service in the 3rd defendant. The claimant asserted that he has never been reprimanded or subjected to any disciplinary action on account of any misconduct or inability to perform his duties as Senior Technologist II in the Department of Microbiology in the 3rd Defendant and that he was not afforded an opportunity of defending himself. The facts supplied by the Claimant under cross-examination on the 12/06/2014 by the 1st and 2nd Defendants’ counsel and the uncontroverted evidence of the DW1 in paragraph 11 of his witness statement on oath puts the claimant on a spot and contradicted the claimant’s Written Deposition on oath that he was not afforded an opportunity to defend himself or confronted with any allegation of misconduct leveled against him before any investigative panel including the Visitation Panel set up by the 1st defendant. In summarizing the case of the 1st and 2nd defendants, Counsel traversed the claimant’s Statement of Facts and effectively joined issues with the claimant on the validity of his claim and tendered Exhibit HE18 – Government White Paper on The Report of the Visitation Panel into the Affairs of Imo State University from 2004 till date. The DW1 for the 1st and 2nd defendants testified that the claimant appeared before the Visitation Panel and had unfettered and comprehensive hearing on the allegation of misconduct leveled against the claimant, DW1 was never cross examined on this fact or any other facts stated on behalf of the 1st and 2nd defendants in his written statement on oath. That it was on the report and recommendation of the visitation panel that the White Paper Exhibit HE18 was predicated. Counsel for the 1st and 2nd defendants proceeded to formulate a sole issue for determination, which is: Whether the claimant is entitled to the reliefs he seeks in this case. It is the contention of the 1st and 2nd defendants that the case of the claimant is founded on two grounds, to wit: (a) That his dismissal from the employment of the 3rd defendant was not in accordance with the Law(s) regulating his contract of service with the 3rd defendant. (b) That he was not given fair hearing before his dismissal from the employment of the 3rd defendant. The claimant had pleaded and relied on the provisions of Section 17(3) of Imo State University Law No. 5 of 2004 but had failed to place before the court that the Visitor – 1st defendant had not the power to set up a Visitation in ANY of the AFFAIRS of the 3rd defendant including to investigate acts of misconduct or inability to perform duties consistent with office, title or position of any person employed as a member of the staff of the 3rd defendant and/or that it is not the duty of bodies (e.g. Council) comprising the 3rd defendant to give effect to any instruction consistent with the provisions of the said Law No. 5 of 2004 which may be given by the 1st defendant. It is submitted that this is fatal to the claimant’s case. Section 16(2) and (3)(b) of the said Imo State University Law 5 of 2004 provide:- 16(2) The Visitor shall as often as the circumstance may require conduct a visitation of the university or direct that such visitation may be conducted by such persons or Panel as the visitor may deem fit and in respect of ANY of the AFFAIRS of the university. 16(3) It shall be the duty of the bodies and persons comprising the university. (b) To give effect to any instruction consistent with the provisions of this law which may be given by the visitor in consequence of a visitation. To counsel, the common understanding of the above provisions is that the visitor has the power to conduct visitation under ANY of the AFFAIRS of the University as a channel for valid dismissal of any staff of the University for misconduct, inability to perform duties consistent with office, title or position in the university and it will be the duties of bodies, e.g. Council, comprising the University to give effect to the instruction given by the visitor in consequence of the visitation. In the instant case, facts supplied in paragraphs 11, 12, 13 and 14 of the Statement of Facts of the Claimant and paragraphs 3 and 4 of the Statement of Defence of the 1st and 2nd Defendants show that the 1st defendant in compliance with the said section 16 of the Imo State University Law No. 5 of 2004 set up a visitation panel into the AFFAIRS of the 3rd defendant with terms of reference among one of which is; to where appropriate recommend the removal and/or dismissal of any staff on ground of misconduct or inability to perform his duties consistent with his office, title or position and it is submitted that, it was as a consequence of the visitation that the instruction of the 1st defendant in paragraphs 43.15 of Exhibit HE18 was given effect by the Council dismissing the claimant from the employment of the 3rd defendant in compliance with the law.- To the 1st and 2nd defendants, the contention of the claimant that his dismissal from the employment of the 3rd defendant must only be in compliance with the provisions of Section 17(3) of the said Imo State University Law No. 5 of 2004, it is submitted, cannot stand as it tends to disregard the powers of the 1st defendant expressly provided for in section 16 of the same law as stated above. Section 17(3) becomes operative only where there is no visitation. Counsel for the 1st and 2nd defendants submitted that the claimant pleaded and relied on the agreement between him and the 1st and 2nd defendant among others leading to his reinstatement in the employment of the 3rd defendant stating that the 1st & 2nd defendant cannot renege on the said agreement but failed to place before the court such an agreement or show that the 1st defendant, who is the visitor of the 3rd defendant and upon whose instruction in consequences of his visitation the claimant was dismissed was part of that agreement. It is also submitted that this is fatal to the claimant’s case. See NEW NIGERIAN BANK PLC vs. IMONIKE (2002) FWLR (Pt. 118) 1406 @ 1419. According to the 1st and 2nd defendants, the Claimant in paragraphs 25,26, 27, 28 and 33 of his Statement of Facts averred that he was not afforded an opportunity to defend himself or confronted with any allegation of misconduct or subjected to any disciplinary action whatsoever before he was dismissed from the services of the 3rd defendant. To counsel, fair hearing was not breached where an employee knows the nature of the allegation against him before an investigative panel, and an investigating panel is not obliged to act in quasi-judicial capacity where it is an administrative panel under a master servant relationship that is governed by the contract of employment. It is submitted that the administrative panels or disciplinary committee, in the instant case – the Visitation Panel, set up to investigate allegations of misconduct are not expected to act in strict practice and procedure of courts of law. It is sufficient if they act in good faith and fairly listened to both parties before arriving at their findings. See YISSA vs. BENUE STATE JUDICIAL SERVICE COMMISSION (2005) All FWLR (Pt. 277) 865 @ 891 – 3. Counsel for the 1st and 2nd defendants submitted that in the instant case, it is established in facts and under cross examination that the claimant appeared before the Visitation Panel, understood the nature of the allegations against him, made oral presentation and answered questions from the panel before the publication of Exhibit HE18 and his subsequent dismissal from the employment of the 3rd defendant. The contentions of the claimant that the Visitation Panel is not a court of law and that he has not been found guilty by a court to warrant his dismissal do not suffice. See YUSUF vs. NATIONAL TEACHERS INSTITUTE (2002) FWLR (Pt. 129) 1526 – 7. DW1 in his written statement on oath testified that the decisions against the claimant in paragraph 43.15 of Exhibit HE18 were based on the findings of the Visitation Panel. This piece of evidence was not disputed. Claimant’s claim of lack of fair hearing therefore fails. See ANT vs. UNIVERSITY OF CALABAR (2001) 3 NWLR (Pt. 700) 339. Counsel contended that the purported recall or reinstatement of the claimant based on the agreement not placed before the court could not stand. The 1st defendant never directed Exhibits HE6, HE7 and HE8 as Exhibit HE18 is still an extant document and its content still being implemented. The alleged recall and reinstatement of the claimant by the 7th defendant, the agent of the 3rd defendant and by extension that of the Visitor, the 1st defendant was in error and was done without authority, hence the issuance of Exhibit HE14. See OBASEKI vs. ACB LTD. (1965) ALR COMM. 538 @ 542. He therefore submitted that the claimant is not entitled to any or all the reliefs he seeks in this case including his claim for reinstatement. The 1st and 2nd defendants submitted in conclusion that they have led cogent and credible evidence to establish that the dismissal of the claimant from the employment of the 3rd defendant was in accordance with the Imo State University Law No. 5 of 2004; and that the claimant failed to establish by credible evidence that he suffered lack of fair hearing on the issue the 5th defendant acted to dismiss him from the employment of the 3rd defendant. He submitted that all the claimant’s reliefs irredeemably fail, and he urged the Court to dismiss this case. By way of adumbration, Counsel for the 1st and 2nd defendants submitted that Exhibit HE18 which is the Government White Paper on the Report of the Visitation Panel is a Government Gazette of Imo State of Nigeria, and therefore a document that can be judicially noticed. A Certified Copy of same having been tendered from the bar, the court ought therefore to take judicial notice of it. According to Counsel, this point is necessary so as to react to the heavy weather made on this point by the Claimant in his final written address. The Claimant in his written address filed on the 24th day of November 2014, summarized the Claimant’s case as follows: The claimant is a Senior Technologist II in the Department of Microbiology in the 3rd Defendant University. The claimant holds a Master’s Degree in Medical Microbiology in the 3rd Defendant University. The claimant was by a letter dated the 20th day of December 2005 employed as a Laboratory Technologist in the 3rd Defendant University, and by another letter dated the 5th day of May 2009, the Claimant’s employment was regularized. See Exhibits HE1 and HE2. The 1st defendant, on the 16th day of April, 2008 set up a ten-man visitation panel (hereinafter referred to as “the panel”) to look into the affairs of the 3rd defendant university from the year, 2004 “till date”. The panel called for memoranda from members of the public on the affairs of the 3rd defendant university from the year 2004 “till date”. Several persons, particularly past and present members of the 3rd defendant university community, submitted memoranda to the panel. The panel at the conclusion of its assignment published a government white paper on the report of the visitation panel. Shortly after the publication of the government White Paper on the Report of the Visitation Panel aforesaid, one A.N. Igbojekwe, Deputy Registrar (Establishment), by a letter dated the 15th day of July, 2009, claiming to act “for Secretary to Council”, purported to dismiss the Claimant from his employment with the 3rd Defendant University. See Exhibit HE3. The Claimant filed an action against the defendants in the High Court of Imo State in Suit No: HOW/181/2010; Chief Henry I. Eke vs. The Imo State University, Owerri, & 2 ors; challenging the termination of his employment with the 3rd Defendant University. See Exhibit HE 4A. Whilst proceedings in Suit No: HOW/181/2010; Chief Henry I. Eke vs. The Imo State University, Owerri, & 2 Ors, were pending in the High Court of Imo State, the Government of Imo State, through the office of the 2nd Defendant (the Attorney General and Commissioner for Justice, Imo State) invited the Vice Chancellor (the 4th Defendant), the principal officers of the 3rd Defendant University, the Claimant and other members of staff of the 3rd Defendant University who filed suits against the defendants challenging their termination/dismissal from the 3rd defendant university, to a meeting, concerning the recommendations as contained in the White Paper. After series of meetings, the 2nd Defendant, acting for the Government of Imo State, directed the secretary to the Government of Imo State to rescind the implementation of the White Paper, recall and reinstate the Claimant to his position as a staff of the 3rd Defendant University upon the condition that he (the claimant) withdrew the action filed in court against the defendants. Consequently, the secretary to the Imo State Government wrote a letter to the 4th defendant, informing him that the government of Imo State directed that he (the 4th defendant) recall the claimant and other members of staff of the 3rd defendant university whose appointments were terminated and those dismissed from service following the publication of the white paper. Consequent upon the foregoing, the claimant discontinued his suit against the defendants, and thus was recalled and re-instated to his position as Senior Technologist II in the Department of Microbiology in the 3rd Defendant University, and the purported dismissal of the claimant from his employment with the 3rd Defendant University, rescinded. For the above reason, the claimant discontinued the Suit No: HOW/181/2010; Chief Henry Eke vs. The Imo State University, Owerri, & 2 ors, filed against the defendants in the High Court of Imo State, and eventually resumed duties as Senior Technologist II in the Department of Microbiology in the 3rd Defendant University, and even earned his salaries for three months. See Exhibit HE4B. Surprisingly, on the 8th day of October, 2012, the 3rd Defendant University, through the 7th defendant wrote another letter to the claimant, informing him that the Government of Imo State had dismissed him from his employment with the 3rd Defendant University, even though throughout the claimant’s career in the 3rd Defendant University from the 20th day of December 2005 up till this moment, he (the claimant) was at no time reprimanded or subjected to any disciplinary action, neither did the 5th defendant nor any other person ever serve/give to the claimant any notice that there were reasons for believing that he (the claimant), should be removed/dismissed from the services of the 3rd defendant university on account of any misconduct or inability to perform his duties as Senior Technologist II in the Department of Microbiology in the 3rd Defendant University, or for any cause or reason whatsoever. The claimant was neither heard nor given any opportunity to be heard before the defendants purportedly dismissed him from his employment with the 3rd Defendant University. The purported dismissal of the claimant from his employment did not follow due process, consequent upon which the claimant instructed his counsel, Naths Epelle Esq. to issue for service on the 3rd, 4th, 5th, 6th and the 7th Defendants, one calendar month notice of his intention to sue the defendants, and thereafter filed this suit. Counsel for the Claimant proceeded to catalogue the Exhibits tendered by the Claimant as follows. 1. Letter of offer of temporary Appointment - Exhibit HE1 2. Letter of Regularization of Appointment - Exhibit HE2 3. Letter of Dismissal - Exhibit HE3 4. Writ of Summons/Statement of Claim - Exhibit HE4A 5. Notice of Discontinuance - Exhibit HE4B 6. Statement of Defence of 1st & 2nd Defendants - Exhibit HE5A 7. Statement of Defence of 3rd & 4th Defendants - Exhibit HE5B 8. Letter of Invitation by 2nd Defendant to 3rd Defendant and members of its staff - Exhibit HE6 9. Letter by 2nd defendant to SSG - Exhibit HE7 10. Letter by SSG to the 3rd Defendant (IMSU) - Exhibit HE8 11. Letter of Reinstatement of Claimant - Exhibit HE9 12. Enrolled order striking out Suit No HOW/181/2010 - Exhibit HE10 13. Resumption of Duty - Exhibit HE11 14. Reinstatement of Claimant to University payroll - Exhibit HE12 15. Letter to the 4th Defendant by Deputy Clerk of IMHA - Exhibit HE13 16. Letter of Dismissal of Claimant dated 8/10/2012 - Exhibit HE14 17. Imo State University Law - Exhibit HE15 18. Senior Staff Conditions of Service - Exhibit HE16 19. Pre-action Notice - Exhibit HE17 20. Government White Paper - Exhibit HE18 The defence did not object to the admissibility of the documents listed above as exhibits save for: 1. Letter of Invitation by 2nd Defendant to 3rd Defendant and members of its staff - Exhibit HE6 2. Letter by 2nd defendant to SSG - Exhibit HE7 3. Letter by SSG to the 3rd Defendant (IMSU) - Exhibit HE8 4. Letter by IMHA to the 3rd defendant - Exhibit HE13 The Court had granted leave to the defence counsel to canvass his objection in respect of Exhibits HE6, HE7, HE8 and HE13 in his final written address. Upon the foregoing, the defendant counsel in his final address raised objection to the said documents and contended that: 1. That these are secondary evidence of official public documents which ought to be certified by those in whose custody they were obtained to qualify for admissibility. 2. The claimant was neither the maker of these documents nor the document addressed to the claimant to qualify the claimant tendering them in court. 3. The claimant’s counsel failed and/or neglected to lay the proper foundation upon which the admissibility of these documents could have rested. 4. The documents are worthless and have no probative value in law having failed to cross the threshold of admissibility under section 104(1) and (2) of the Evidence Act, 2011 and should be rejected for all that they are worth. In response to the objection raised by counsel for the 1st and 2nd defendants in respect of Exhibits HE6, HE7, HE8 and HE13, Counsel for the Claimant referred the Court to paragraphs 17, 18, 19, and 24 of the Statement of Facts. He referred the Court to the claimant’s evidence in Paragraphs 17, 18, 19 and 26 of the claimant’s evidence as contained in his written statement on oath, and submitted that the objection of counsel for the 1st and 2nd defendant is misconceived. The claimant tendered Exhibits HE6, HE7, HE8 and HE13, not as public documents requiring certification under the Evidence Act, 2011, but as documents given to him by the makers of the said documents. He submitted further that the documents are relevant, and that it is settled law that it is the relevancy of a document sought to be tendered in evidence that governs admissibility of such documents in evidence. Exhibits HE6, HE7, HE8 and HE13 are relevant to the proceedings before the Court, and therefore admissible. See ESSIEN vs. ESSIEN (2009) 9 NWLR Pt. 1146, 311. Counsel went further that the claimant in paragraphs 17, 18, 19 and 26 of the Claimant’s written statement on oath laid proper foundation for the admissibility of the said documents when he stated that he was tendering the documents (HE6, HE7, HE8 and HE13) as copies of the documents given to him by the makers of the said documents. Counsel urged the Court to discountenance the objection of counsel for the 1st and 2nd defendants and receive Exhibits HE6, HE7, HE8 and HE13 in evidence. According to counsel for the Claimant, it is worthy of mention that the claimant in paragraph 35 of his statement of facts gave the defendants notice to produce all the documents pleaded in the statement of facts. By Section 91 of the Evidence Act, 2011, where a party to an action is given notice to produce a document at the trial and he fails to produce the said document, the other party shall be at liberty to tender secondary evidence of the document, of which notice to produce was given. Counsel submitted in the alternative that by Section 91(b) of the Evidence Act, 2011, the 1st and 2nd defendants ought ordinarily to know that from the nature of this case that they (the 1st and 2nd defendants) will be required to produce Exhibits HE6, HE7, HE8 and HE13 at the trial of the suit. Counsel for the Claimant pointed out that the 1st and 2nd defendants entered appearance to the claimant’s suit and filed a joint statement of defence; and that the 1st and 2nd defendant also filed a written statement on oath of their sole witness, Mr. Mbadinuju; but neither filed nor frontloaded copies of any document to be relied upon at the trial. He went on that in the course of evidence by DW1, counsel to the 1st and 2nd defendants sought to tender the Government White Paper on the Visitation Panel. Naths Epelle Esq, counsel representing the claimant, indicated his intention to object to the admissibility of the said document (the white paper) but sought leave of the Court to so do in course of his final address so as to save time. On this, Counsel for the Claimant submitted that the provision of Order 9 Rule 1 of the rules of this Court provides inter alia: that a defendant who has been served with a complaint shall, within 14 days file amongst other court processes: “C. copies of documents to be relied upon at the trial”.. In INEC vs. INIAMA (2008) NWLR Pt. 1088, 182, 202 the Court of Appeal in interpreting the word “shall”, had this to say: “Shall in all enactments is prima facie imperative and admits of no discretion”. Counsel for the 1st and 2nd defendants neither pleaded, listed, filed nor frontloaded the Government White Paper on the visitation panel which he sought to tender in evidence at the trial of the suit. Counsel again cited the Court of Appeal case of INEC vs. INIAMA (Supra) @ pg. 205, para. H 206, para. A, where it was held inter alia as follows: “I do not subscribe to the idea that failure to file a copy of a document pleaded in the statement of claim renders the suit incompetent. By implication, the consequence of such failure is that the Plaintiff will not be allowed to use the document in evidence even though it is pleaded. In effect, the omission to annex a copy of the document pleaded does not amount to such non-compliance with the rules as to affect the validity of the suit but has only the effect of depriving the Plaintiff of the use of the document, the copy of which he did not file even though he pleaded same”. Afortiori, where the 1st and 2nd defendants in this suit fail to list, file/frontload a document they intend to rely on, such as the Government White Paper on the Visitation Panel, the consequence of such failure is that the 1st and 2nd defendants ought not be allowed to use the said document in evidence although they (the 1st and 2nd defendants) pleaded the said document. Counsel urged the Court to hold that the 1st and 2nd defendants having failed to file, list or frontload the said Government White Paper on the visitation panel, the said document is inadmissible and thus, cannot be received in evidence by reason inter alia that the 1st and 2nd defendants by that singular act of not listing, filing or frontloading the said document (Government White Paper on the visitation panel) took the claimant unawares in utter violation of the claimant’s constitutional right to fair hearing as enshrined under Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). He urged the Court not to admit in evidence, the said Government White Paper on the visitation panel. Counsel for the Claimant then proceeded to submit the following issues for the determination of the Court: 1. Whether upon the construction of Section 169 of the Evidence Act, 2011, and the documents relied upon by the claimant in this suit, the Defendants are not estopped from dismissing the claimant from his employment as Senior Technologist II in the Department of Microbiology of the 3rd Defendant University, having by their act(s) and conduct caused the claimant to believe in a state of affairs to wit that he (the claimant) has been re-instated to his position as Senior Technologist II in the Department of Microbiology of the 3rd Defendant University, consequent upon which he (the claimant) discontinued his Suit No: HOW/181/2010; Chief Henry I. Eke vs. The Imo State University, Owerri, & 2 Ors, filed against the defendants in the High Court of Imo State? 2. Whether the 7th defendant or any of the defendants has powers to dismiss the Claimant as Senior Technologist II in the Department of Microbiology in the 3rd Defendant University, without due compliance with the statutory provisions guiding the claimant’s employment with the 3rd defendant university? 3. Can it be said that the claimant was heard or given an opportunity to be heard before his dismissal from the 3rd defendant university, having regard to the provisions of section 17(3) of the Imo State University, Law No. 5 of 2004, Regulations 14 and 27 of the Imo State University, Owerri Regulations Governing The Conditions of Service of Senior Staff, 1995 and section 36(1) of the constitution of the Federal Republic of Nigeria, 1999 (as amended)? Issues Nos. 1, 2 and 3 being related were taken together in Counsel’s argument as follows: It was the submission of Counsel that the claimant led evidence in line with his pleadings as contained in his statement of facts. The claimant, in course of his evidence, established that the 3rd defendant university was established by section 3(1) of the Imo Stat University law, Law No. 5 of 2004. The claimant who now holds a Master’s Degree in Microbiology was employed by the 3rd defendant university as a Laboratory Technologist on the 20th day of December 2005. On the 16th day of April, 2008, the 1st defendant set up a ten-man visitation panel (hereinafter referred to as ‘The Panel’) to look into the affairs of the 3rd Defendant University. At the conclusion of its assignment, a Government White Paper on the report of the visitation panel was published. Shortly after the publication of the Government White paper on the report of the visitation panel, one A. N. Igbojekwe (Deputy Registrar, Establishment) purport to dismiss the claimant from the 3rd Defendant University, although the said A.N Igbojekwe (not being chairman of the 5th Defendant Council) has no authority to dismiss the claimant from the 3rd Defendant University. See Exhibit HE3. The claimant being aggrieved with his purported dismissal from the 3rd Defendant University filed an action against the defendant therein in suit No HOW/181/2010. The defendants filed statements of defence. The claimant’s writ of summons is Exhibit HE4A. The Defendants filed a statement of defence. See Exhibits HE5A. Whilst proceedings in Suit No. HOW/181/2010 were pending at the High Court of Imo State, the Government of Imo State, through the office of the 2nd Defendant (Attorney General and Commissioner for Justice, Imo State) invited the 4th defendant, the principal officers of the 3rd defendant university, the claimant and other members of staff of the 3rd Defendants University who challenged in court, the Government White Paper on the visitation panel on various grounds, to a meeting scheduled for the 11th day of November, 2011. The 2nd defendant gave a copy of the said letter to the claimant. See Exhibit HE6. After series of meeting by the persons hereinbefore referred, the 2nd defendant, acting for the Government of Imo State, directed the secretary to the Government of Imo State to suspend the implementation of the government White Paper on the visitation panel to enable the claimant and other officers of the 3rd defendant university discontinue suits filed against the 3rd defendant university and the other defendants in the said suit. Consequently, the secretary to Imo State Government informed the 4th defendant that the government of Imo State directed that the Claimant and other members of staff of the 3rd Defendant University affected by the government white paper on the visitation panel be recalled and that the implementation of the white paper be suspended. The secretary to the Imo State Government gave a copy of the aforesaid letter to the claimant. See Exhibit HE8. The 7th defendant informed the claimant that his purported dismissal from his employment with the 3rd Defendant University had been rescinded by the Government of Imo State upon the condition that the claimant discontinued Suit No. HOW/181/2010 which he filed against the defendants therein. See Exhibit HE9. As a result of the injustice meted out to the claimant and other members of staff of the 3rd Defendant University affected by the white paper, the Imo State House of Assembly cried out, and directed the defendants to rescind the White Paper on the visitation panel and reinstate the claimant and other persons affected by the said White Paper. See Exhibit HE13. The claimant was reinstated to his position as Senior Technologist II in the Department of Microbiology in the 3rd Defendant University, the claimant having discontinued his suit against the defendants in the said Suit No: HOW/181/2010. The notice of discontinuance and the drawn up order of the Imo State High Court in respect of the said discontinuance of the claimant’s suit were received in evidence as Exhibits HE4A and HE4A respectively. Having been reinstated as afore stated, the claimant duly informed the 7th defendant of his resumption of duty in the 3rd Defendant University, consequent upon which the 3rd Defendant University instructed the bursar of the 3rd Defendant University to restore the name of the claimant to the 3rd Defendant University’s pay roll. The claimant’s name was thus restored to the said pay roll. The claimant earned salaries for three months. See Exhibits HE11 and HE12 respectively. The claimant having discontinued his suit at the Imo State High Court upon his reinstatement and resumption of duties as Senior Technologist II in the Department of Microbiology in the 3rd Defendant University, the 7th defendant strangely, surprisingly and irresponsibly informed the claimant that the Government of Imo State annulled his reinstatement to his position as Senior Technologist II in the Department of Microbiology in the 3rd Defendant University and thereby again, dismissed the claimant from his employment at the 3rd Defendant University. See Exhibit HE14. Counsel for the Claimant submitted that the 3rd – 7th defendants did not file any defence to the claimant’s action; neither did they defend the suit filed against them by the claimant, although they were duly represented by counsel throughout the proceedings. In the light of the foregoing, Counsel submitted that the 3rd – 7th defendants having failed/neglected to file pleadings and defend the suit, all the averments pleaded in the claimant’s statement of facts and the evidence led thereon against the 3rd – 7th defendants are deemed to have been admitted by the 3rd – 7th defendants, and it is the law that what is admitted needs no further proof. See Section 26 of the Evidence Act, 2011. Counsel for the Claimant went further in his address that the 1st and 2nd defendants’ counsel in his final address, made had made heavy weather of the Government White Paper on the visitation panel and its legal effect on the claimant’s suit. On this, Counsel submitted that the claimant’s action against the defendants is predicated on Exhibit 17, being the letter dated the 8th day of October, 2012, and not on the government white paper on the visitation panel. To Counsel, most importantly, the powers of the visitor under Section 16 of the Imo State University Law is not at large. The provision of Section 16(3)(b) of the Imo State University Law empowers the visitor: “(b)… to give effect to any instruction consistent with the Provisions of this law which may be given by the visitor in consequence of a visitation.” From the foregoing provision according to Counsel, it is obvious that the visitor in giving instruction in respect of any visitation should do so in accordance with the provision of Imo State Law No. 5 of 2004. There is no evidence that the defendants (including the 1st defendant who is the visitor of the University) complied with the afore-stated provision of the law in dismissing the claimant from his appointment. It is the contention of the claimant that neither the 7th defendant nor indeed any of the defendants can dismiss the claimant from his employment as Senior Laboratory Technologist II in the Department of Microbiology, Faculty of Science of the 3rd Defendant University. This is so because by the provisions of Section 169 of the Evidence Act, 2011, the 7th defendant or any of the defendants, cannot do so. Section 169 of the Evidence Act, 2011 provides as follows:- “169. When one person has either by virtue of an existing court judgment Deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such person’s representative in interest, to deny the truth of that thing.” As hereinbefore submitted, the defendants reinstated the claimant to his position as Senior Technologist II in the Department of Microbiology in the 3rd Defendant University, having earlier caused him (the claimant) to discontinue suit No. HOW/181/2010, filed against the defendants therein. By that act, the defendants caused the claimant to believe that he (the claimant) had been reinstated to his position as Senior Technologist II in the Department of Microbiology in the 3rd Defendant University. The claimant thus altered his position when he (the claimant) discontinued Suit No. HOW/181/2010, instituted against the defendants in the High Court of Imo State, in the belief that he had been reinstated to his position as Senior Technologist II in the Department of Microbiology in the 3rd Defendant University. Can the defendants or any one of them now turn around and dismiss the claimant from his employment with the 3rd defendant university after they had led the claimant to alter his position by discontinuing his suit against the defendants therein to his (the claimant’s) own peril? The law is settled that when there is an intentional representation that had been acted upon by the other party, the first party will be estopped from denying the existence of the state of affairs. See UDE vs. OSUJI (1998) 10 SCNJ 75, 82, ONAMADE vs. ACB (1997) 1 SCNJ 65, 83, where the Supreme Court of Nigeria held that whatever a man’s real intention may be, he is deemed to act willfully if he conducts himself that a reasonable man will take the representation to be true and believe that it was meant that he should act upon it and did act upon it as true. The party who made the representation would be precluded from contesting its truth. See also BANK OF THE NORTH LTD. vs. NA’BATURE (1994) 1 NWLR Pt. 319, 235. See FORTUNE INT’TL BANK PLC vs. CITY EXP. BANK LTD. (2012) 14 NWLR Pt. 1319, 86, 114 – 115 G – H. From the facts of this case, it is not disputed that the defendants, in their relationship with the claimant, acted intentionally in such a manner that the claimant accepted their representation to be true and believed that the representation was meant to be acted upon, and he (the claimant) did act upon the representation as true, when he discontinued his suit No. HOW/181/2010, as directed by the defendants. In situations such as this, the doctrine of estoppel will not only frown at such act or conduct proceeding from the defendants, but will also resist any act or conduct by the defendants to contest the truth of such representation, having regard to the fact that the defendants led the claimant to alter his position. Thus, the doctrine of estoppel prevents one party from taking unfair advantage of another, when by his act or conduct, the person to be estopped has induced another person to act in a certain way with the result that other person has been injured. AG RIVERS STATE vs. AG. AKWA IBOM STATE (2011) 8 NWLR Pt. 1248, 31. In the case of AG NASSARAWA STATE vs. AG PLATEAU STATE (2012) 10 NWLR (Pt. 1309) 470, PARA. C – E, the Supreme Court of Nigeria in considering the doctrine of estoppel by conduct stated thus:- “The doctrine of estoppel by conduct , though a common law principle has been enacted into Nigerian body of laws particularly the law of evidence. By virtue of section 151 of the Evidence Act, where one person has by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed in any proceedings between himself and such person or such person’s representative in interest to deny the truth of that thing. Estoppel by conduct, a common law principle has gained statutory acceptance in Nigeria. It forbids a person from leading his opponent from believing in and acting upon a state of affairs only for the former to turn around and disclaim his act or omission.” Section 151 of the Evidence Act, 2004, is in pari materia with the provision of section 169 of the Evidence Act, 2011. In effect, the doctrine of estoppel forbids the defendants from leading the claimant from believing in, and acting upon a state of affairs to wit: that he has been reinstated to his position as Senior Technologist II in the Department of Microbiology in the 3rd Defendant University, only for the defendants to turn around and disclaim their act or omission. See ODU’A INVESTMENT CO. LTD. vs. TALABI (1991) 1 NWLR Pt. 170, 761. Public employment or any employment clothed with statutory flavour being protected by statute is clearly outside the scope of master and servant relationship. The employee in such employment (public employment or an employment with statutory flavour) does not hold his office at the pleasure of the government (state or federal) or any other persons(s) such as the defendants. The 3rd and 5th defendants being creatures of statute can only act within the scope or ambit of the relevant statutory provisions creating them such as Imo State University Law 5 of 2004, and Imo State University, Owerri, Regulations Governing the conditions of Service of Senior Staff, the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and other relevant statutes. Emphasizing on the duty placed on statutory institutions to comply with statutory provisions in relation to the interest of their employees, it was held in the case of: AKINYANJU VS. UNIVERSITY OF ILORIN (2011) All FWLR Pt. 569, 1080, 1147 – 1148, G – A, that:- “Any procedure for removal of an employee outside the scope of the Act will be illegal, null and void. In all institutions set up by statute, it is incumbent that the statutory provisions be adhered to when it comes to removal of its officers from office because the institutions owe their existence to their statute and must abide by the statutory provisions governing them.” Thus, when an office or employment has a statutory flavour 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. Any contract of service 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. Section 17(3) of the Imo State University Law No. 5 of 2004 provides as follows:- “(3) if it appears to the Council that there are reasons for believing that any person employed as a member of the staff of the university other than the vice-chancellor or any Deputy vice-chancellor be removed from his employment on the ground of misconduct or inability to perform the functions of his office or any other good cause, the Council shall: (a) Give notice of those reasons to the person in question; (b) Afford that person an opportunity of making representations on the matter to the council; and (c) If that person or any three members of the council so required within the period of one month, with effect from the date of the notice make arrangements; (d) For a joint committee of the council and the senate to investigate the matter; (e) To afford the person in question an opportunity of appearing before the committee and of making his defence; And if the council, after considering any representations and reports made in pursuance of this sub-section, is satisfied that the person in question shall be removed as aforesaid, the council may so remove him by an instrument in writing signed by the Chairman of the Council on the directions of the council, or substitute a lesser punishment if his offence is considered not grievous”. Regulation 14 of Imo State University, Owerri, Regulations Governing the Conditions of Service of Senior Staff provides that:- “14 TERMINATION OF APPOINTMENT BY THE UNIVERSITY: (i) The Appointment of a Senior Member of Staff on tenure may be terminated at any time for reasonable cause by Council on the recommendation of a Disciplinary Committee of Council in accordance with the provision of these Regulations. (ii) For the purpose of these Regulations “reasonable cause” includes: (a) Conviction for any offence which a Disciplinary Committee considers to be such as would seriously discredit the University or seriously prejudice the person convicted and ender him unfit in the performance of his duties. (b) Gross or persistent neglect of duty or misconduct in the performance of duty; (c) Conduct of a scandalous or other disgraceful nature including moral turpitude which the Disciplinary Committee considers to be such as to render the person concerned unfit to continue to hold office; (d) Failure or inability of the person concerned to discharge the functions of his office or to comply with the terms of conditions of service resulting from infirmity of mind or of body or from any other cause. (e) Misrepresentation as to qualification or credentials on which employment is based. (iii) Before terminating an appointment for “reasonable cause” other than on grounds of infirmity of mind or body, the Disciplinary Committee of Council shall:- (a) Notify the member of staff concerned in writing of the grounds on which consideration is being given to the termination of his appointment; and (b) Give the member of staff concerned opportunity of replying to the allegations against him. (iv) If it thinks it necessary, the Disciplinary Committee may permit the member of staff to appear in person at the meeting at which the case is being considered. (v) The member of staff concerned may appeal to council against the Disciplinary Committee’s decision. Reguation 27:STAFF DISCIPLINARY COMMITTEE: (a) TERMS OF REFERENCE: i. To conduct investigation into, consider and determine all the disciplinary cases involving members of staff of the university on salary UASS 01/EUSS 06 and above, except the Vice Chancellor, the Deputy Vice Chancellor, or any other staff as Council may direct. Any staff who is not satisfied with the decision of the Committee may appeal to council for reconsideration within one month of the decision of the Committee. By the combined effect Section 17(3) (a) (b) (c) (i) and (ii) of the Imo State University Law No. 5 of 2004, and regulations 14 and 27 (b) of the Imo State University, Owerri, Regulations Governing the Conditions of Service of Senior Staff (UASS 01 – 07 ESUASS 06 – 15) 1995, the power to remove a member of academic or administrative or professional staff of the university other than the Vice Chancellor and Deputy Vice Chancellor from his office on the ground of misconduct or his inability to perform the functions of that office is vested only in the 5th defendant council. The foregoing are the statutory provisions germane to the claimant’s case. There is neither pleading nor evidence by the 1st and 2nd defendants that the above stated provisions of the law were complied with. The provisions were not considered by the 3rd Defendant University and/or the government of Imo State before purportedly dismissing the claimant from his employment. See paragraphs 33, 34 and 35 of the claimant’s statement of facts. See also paragraphs 34, 35 and 36 of the claimant’s written statements on oath. Counsel for the Claimant submitted that Section 17(3)(a) (b) (c) (i) and (ii) of the Imo State University Law No. 5 of 2004, and Regulations 14 and 27(b) of the Imo State University, Owerri, Regulations Governing the Conditions of Service of Senior Staff (UASS 01 – 07 EUASS 06 -15) 1995, derive their force from section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which provides thus: “(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.” Latent in this constitutional provision are the principles of natural justice which are the pillars that support the concept of the rule of law. The principles of natural justice are indispensable part of the process of adjudication in any civilized society. The twin pillars on which they are built are the principles that one must be heard in his own defence before being condemned and no one should be a judge in his own case. See OTAPO vs. SUMMONU (2011) All FWLR (Pt. 576), 419, 461, A – B. According to Counsel, the claimant who holds a Masters Degree in Medical Microbiology is on Salary Grade level 7 step 7, Consolidated University Academic Salary Structure, has every right to be heard by the 5th defendant or any committee set up by the 5th defendant before he was dismissed from employment as Senior Technologist II in the Department of Microbiology in the 3rd Defendant University, but he was neither heard nor given any opportunity to be heard. He submitted that any procedure adopted in dismissing the claimant from his employment with the 3rd Defendant University, outside the scope of the provision of Section 17(3) of the Imo State University, Law No. 5 of 2004, and Regulation 14 of Imo State University, Owerri, Regulations Governing the Conditions of Service of Senior Staff, is illegal, null and void. He went further that the 3rd defendant university having been set up by statue, it is mandatory that the statutory provisions be adhered to, when it comes to removing/dismissing the claimant from office because the 3rd Defendant University owes its existence to the statute creating it, and must abide by the statutory provisions governing it. See A-G KWARA STATE vs. ABOLAJI (2009) 7 NWLR (Pt. 1139), 199, 220 F – H. To counsel for the Claimant, the law regulating the appointment and discipline of members of staff of the 3rd Defendant University must be strictly complied with, particularly in cases where the employment is with statutory flavour. See C.B.N vs. IGWILO (2007) 14 NWLR (Pt. 1054) 393, 421 – 422. In the case of OLANIYAN vs. THE UNIVERSITY OF LAGOS (1985) 2 NWLR (Pt. 9) 599, the Appellants were University Professors whose appointments were terminated without considering the provision of Section 17(1) of the University of Lagos Act 1967. The Supreme Court of Nigeria in considering the appeal emanating therefrom held that the Respondent therein (University of Lagos) had no power to remove the said Professors from their respective positions without due compliance with the provision of Section 17(1) of the University of Lagos Act, 1967. In the case of OGUNDOYIN vs. ADEYEMI (2001) FWLR (Pt. 71) 1741, 1754, the Supreme Court of Nigeria stated that the rule of fair hearing is not a technical doctrine. The question is not whether injustice has been done because of lack of fair hearing. It is whether a party entitled to be heard before deciding the case against him, has, in fact, been given an opportunity to be heard. My lord, there is neither pleading nor proof that the claimant was heard or given any opportunity to be heard before his appointment with the 3rd Defendant University was terminated. The claimant stated that he was neither heard nor given an opportunity to be heard before he was dismissed from employment with the 3rd Defendant University by Exhibit HE14, being the letter dated the 8th day of October, 2012, purporting to dismiss the claimant from his appointment as a staff of the 3rd Defendant University. Counsel urged the Court to resolve all the issues formulated herein in favour of the claimant, and grant unto him the reliefs as claimed in his statement of facts. In reaction to the point raised by the Counsel for the 1st and 2nd defendant while adumbrating in respect of Exhibit HE18, Counsel for the Claimant submitted that Exhibit HE18 speaks for itself. We cannot therefore read into it what is not contained therein. The court can therefore determine whether or not it is a gazette. He went further that Section 122(1) of the Evidence Act contains a list of documents that the court can take judicial notice of. Adding that compulsorily, any official gazette ought to have a gazette number, and which Exhibit HE18 didn’t have, Counsel submitted that the Imo State Government White Paper is not what the Court should take judicial notice of; and urged the court to grant the Claimant’s claims and give judgment in his favour. Upon this suit coming up on 9th day of February, 2015 for judgment the court drew the attention of the parties to section 22 of the Imo State University Law No. 5 of 2004, the principal law regulating the employment of the claimant with 3rd defendant and ordered the counsel to the parties to address the court on the effect of the said section 22 to this suit. In compliance with the said order of court, The 1st and 2nd Defendants filed a written address on the 23rd day of February 2015 wherein counsel submitted that the said Section 22 of the Imo State University Law deals with the issue of pre-action notice which is a condition precedent that must be complied with before the commencement of any action without which the suit will be incompetent and liable to be struck out. The provisions prescribing pre-action notice are mandatory. See SHOMOLU LOCAL GOVT. COUNCIL vs. AGBE (1996) 4 NWLR (Pt. 441) 174; ODOEMELAN vs. AMADIUME (2008) 2 NWLR (Pt. 1070) 79. In EZE vs. OKECHUKWU (2002) 18 NWLR (Pt. 799) 354 – 355. The decision of the case was that “in effect, non-service of a pre-action notice merely puts the jurisdiction of a court to hear the matter on hold pending compliance...” Uwaifor JSC went further to elaborate in the same case. “It is necessary to state that there are circumstances where a court has no original jurisdiction or any constitutional jurisdiction to the matter. There are others where, owing to operation of law the jurisdiction is either taken away or merely put on hold pending compliance with the precondition….” In the instant case, the issuance of service of pre-action notice is owned to the operation of law, ie, Section 22 of the Imo State Law and therefore in absence of non-compliance the jurisdiction of the court is taken away and not put on hold. By the provisions of the law, being a statute, the jurisdiction of the court is excluded by non-compliance with the service of pre-action notice. It is well established that the question of jurisdiction can be raised at any time and at any stage. This is trite. Section 22 of the Imo State University Law No. 5 of 2004 provides as follows: (1)(a) No suit shall be commenced against the University or any of its bodies until at least one month after written notice of intention to commence same shall have been served on the Vice-Chancellor by the intending plaintiff or his agent. (b) The notice shall clearly state the cause of action, the particulars of claim, the name and place of abode of the intending plaintiff amid the relief he claims. (2) No suit against the University or the Visitor or against any of its bodies or against any member, officer or employee thereof in respect of any act, neglect or default done or omitted to be done in his capacity as such, shall be instituted in any court unless it is commenced within three months from the occurrence of the act, neglect or default or in the case of continuance of damage or injury within three months immediately after the cessation thereof so however that any notice served pursuant to sub-section (1) of this section shall be deemed to be commencement of such proceedings. The above provisions, it is submitted, forms part of the claimant’s conditions of service as the Imo State University Law No. 5 2004 governs and regulates the claimant’s employment relationship with the 3rd defendant. Counsel identified a sole issue for determination, which is whether the claimant served the pre-action notice in respect of all the defendants as mandatorily required in compliance with the provisions of Section 22 of the Imo State University Law No. 5 of 2004. In arguing the issue, Counsel submitted that flowing naturally from the reasoning above is the fact that a pre-action notice is required by Section 22 of the Imo State University law to be served on the defendants here and which section it is submitted above forms part of the claimant’s conditions of appointment. He is submitted, looking at Exhibit HE17, that no pre-action has been duly served on the defendants in order to render this suit competently initiated and the consequences are trite and obvious. It is glaring on the face of Exhibit HE17, the purported pre-action notice of the claimant via his counsel, that it was addressed in respect of the 3rd, 4th, 5th, 6th and 7th defendants excluding the 1st defendant, who is the visitor of the 3rd defendant. In other words there is no pre-action notice served on the 1st defendant if Exhibit HE17 is to be reckoned with. It is submitted that the failure on the part of the claimant to serve the pre-action notice on the visitor, the 1st defendant or record is fatal to this suit. Again the action being complained of by the claimant took place on 15th July, 2009 (see Exhibit HE3) and the said Exhibit HE17 was served on 26th November, 2012 long after the expiration of the three months mandatorily prescribed by section 22 of the Imo State University Law. This is a fatal negligence on the part of the claimant. And having slept on his right the claimant cannot be heard to claim it again by the issuance of Exhibit HE17 which is dead on arrival by virtue of the time limit of three months provided by the said Section 22. See MADUKOLU vs. NKEMDILIM (1961) 2 NSCC 374 – a case that has settled the ingredients of jurisdiction to include inter alia that a case has to be initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defects in this respect render the entire proceedings incompetent. In the instant case, the failure of the claimant to serve pre-action notice on the 1st defendant and Exhibit HE17 on time as provided by Section 22 of the Imo State University law, it is submitted, renders the entire proceedings incompetent and liable to be struck out. The 1st and 2nd defendants submitted in conclusion that it is established that the 1st defendant is entitled to be served with pre-action notice on the circumstances of this case and on time too then on the facts of the claimant’s action, the instant suit in its entirety becomes incompetent (the pre-action notice not having been served on the 1st defendant and Exhibit HE17 not on time too) and the court is therefore, not clothed with the jurisdiction to entertain the suit. See MADUKOLU vs. NKEMDILIM (Supra). Counsel urged the Court to accordingly strike out this case. In the written address filed on the 16th day of February 2015 by the Claimants pursuant to the order of court, Counsel for the Claimant gave a brief summary of the action thus: By an originating summons issued out of the registry of this Court on the 18th day of March, 2013, preceded by a pre-action notice dated the 23rd day of November 2012, the claimant brought this action against the defendants wherein he proposed two questions for determination. Upon the two questions proposed for determination, the claimant sought nine reliefs from the court. In support of his originating summons, the claimant deposed to an affidavit of 37 paragraphs and Exhibited 22 documents. The claimant also filed a Written Address in support of his originating summons. Upon service of the originating summons on the defendants, the 1st and 2nd defendants filed a joint counter affidavit and a written address. The 3rd – 7th defendants did not file any process in court in opposition to the originating summons. The court, after hearing the parties, ruled that the facts of the case as presented by the parties are in conflict, consequent upon which it ordered pleadings. The claimant, in compliance with the provisions of Order 3 Rule 4 of the rules of this court, filed his Statement of Facts. The 1st and 2nd defendants filed a joint Statement of Defence along with the written statement on oath of their sole witness, Anthony Mbadinuju. The 3rd – 7th defendants did not, as usual, file any process in court. Hearing commenced in the suit with the claimant testifying as CW1, tendering documents and closing his case, the 1st and 2nd defendants, through their witness, Anthony Mbadinuju, but defended the suit for and on behalf of the 1st and 2nd defendants and closed their case. Subsequently, counsel for the claimant, 1st and 2nd defendants adopted their respective written addresses, and the matter was adjourned for judgment. On the 9th day of February 2015, the parties appeared before the Court for judgment, but the court suo motu raised the issue of compliance with the provision of Section 22 of the Imo State University Law, Law No. 5 of 2004, and requested counsel for the parties to address it on points of law. Counsel proceeded to identify the following two issues for the determination of the Court (a) Whether the claimant’s action is not competent, having regard to the provisions of section 22 of the Imo State University Law No. 5 of 2004? (b) Whether the protection offered by the provisions of Section 22 of the Imo State University law No. 5 of 2004 is available to the defendants? Section 22 (1)(a) of the Imo State University Law No. 5 of 2004, provides as follows: “No suit shall be commenced against the University or any of its bodies until at least one month after written notice of intention to commence same shall have been served on the Vice Chancellor by the intending plaintiff or his agent”. In paragraphs 34 and 35 of his statement of facts, the claimant pleaded that before filing this action, he instructed his counsel to cause a one calendar month’s written notice to issue on the 3rd – 7th defendants, which notice he personally served on the said 3rd – 7th defendants on Friday the 26th day of November 2012, and they (the 3rd – 7th defendants) duly acknowledged receipt of the said notice. The pre-action notice which was tendered in evidence as exhibit, it is submitted, duly complied with the provision of Section 22 (1) (b) of the Imo State University Law No. 5 of 2004. Counsel pointed out that the 3rd – 7th defendants did not file any pleadings, and thus did not traverse the facts pleaded in paragraphs 36 and 37 of the claimant’s Statement of Facts. The facts pleaded therein having not been denied by the 3rd – 7th defendants, are deemed established. According to the Claimant, (a) the cause of action arose on the 8th day of October 2012 (See Paragraph 24 of the Statement of Facts); (b) the claimant issued and served on the 3rd – 7th defendants, pre-action notice on the 23rd day of November, 2012 (See Paragraphs 34 and 35 of the Statement of Facts). Section 22 (2) of the Imo State University Law No. 5 of 2004, provides as follows: “No suit against the University or the visitor or against any of its bodies or against any member, officer or employee thereof in respect of any act, neglect or default done or omitted to be done in his capacity as such, shall be instituted in any court unless it is commenced within three months from the occurrence of the act, neglect or default or in the case of continuance of damage or injury within three months immediately after the cessation thereof so however that any notice served pursuant to sub-section (1) of this section shall be deemed to be commencement of such proceedings”. Underlining supplied by Counsel. By the second limb of Section 22(2) of the Imo State University Law No. 5 of 2004, which provides inter alia that …”so however that any notice served pursuant to sub-section (1) of this section shall be deemed to be commencement of such proceedings”. The claimant is deemed to have commenced his action within three months as stipulated by section 22(2) of the Imo State University Law No. 5 of 2004. Counsel submitted that the suit is very competent by reason thereof, as the suit is deemed to have been commenced on the 26th day of November, 2012, being the date on which the 3rd – 7th defendants were served with the pre-action notice. Counsel urged the Court to so hold, and to resolve all the issues in favour of the claimant. Before I go into considering the main issue involved in this suit, there are a few preliminary matters that need to be resolved first. Counsel to the parties adopted their final written address on 27/11/2014 and the matter was adjourned to 4/2/2015 for judgment. In the course of writing the judgment, the provision of Section 22 (2) of the Imo State University Law No. 5 of 2004 caught my attention. Being a provision on limitation of action, I gave the parties the right to address me on the effect of the provision on this suit. Counsel to the claimant and that of the 1st and 2nd defendants did turn in their addresses on the point. Their submissions are as have been summarized earlier in this judgment. Section 22 (2) of the said law provides- “No suit against the University or the visitor or against any of its bodies or against any member, officer or employee thereof in respect of any act, neglect or default done or omitted to be done in his capacity as such, shall be instituted in any court unless it is commenced within three months from the occurrence of the act, neglect or default or in the case of continuance of damage or injury within three months immediately after the cessation thereof so however that any notice served pursuant to sub-section (1) of this section shall be deemed to be commencement of such proceedings”. The portion of the above provision I have underlined made reference to Subsection (1) of the section. The subsection (1) of Section 22 of the Law provides- “(a) No suit shall be commenced against the University or any of its bodies until at least one month after written notice of intention to commence same shall have been served on the Vice Chancellor by the intending plaintiff or his agent. (b) The notice shall clearly state the cause of action, the particulars of claim, the name and place of abode of the intending plaintiff amid the relief he claims.” The import of these two subsections of section 22 of the Imo State University Law in this proceedings is that the claimant’s suit against the defendants will be statute barred if it was not commenced within three months from the date of the accrual of the cause of action but if the claimant had served a one month pre-action notice on the Vice Chancellor, he will be deemed to have commenced the action from the date of the notice. In view of these provisions, is the claimant’s suit statute barred? The claimant commenced this suit on 18th March 2013. From the facts of his case, particularly Paragraph 24 of the Statement of Facts, it is clear that the claimant’s cause of action arose on 8th October 2012 when he received the letter, now Exhibit HE 17 cancelling the letter reinstating him to his employment. A calculation of these periods shows that this suit was filed more than three months from the date the cause of action accrued. However, the claimant, in paragraphs 34 and 35 of his statement of facts, pleaded that before filing this action, he served a one month’s written notice on the 3rd – 7th defendants on 26th November 2012. The acknowledged copy of the notice was tendered in evidence as Exhibit HE 17. I have looked at the Exhibit and I see that it complies with Section 22 (1) a) and (b). It shows on its face that it was received by the office of the Registrar of the 3rd defendant. By Section 23 of the Imo State University Law, the notice was properly served. The notice was served on 26/11/2012. The claimant, by virtue of Section 22 (2) Imo State University Law, is deemed to have commenced this action on that day. Taking the date of his cause of action of 8th October 2012 into consideration, there is no doubt now that the claimant’s suit is not statute barred. The 1st and 2nd defendants’ counsel has submitted that it is disclosed on the face of Exhibit HE17 that it was not served on the 1st defendant. The consequence is that no pre-action notice was served on the 1st defendant being the visitor of the 3rd defendant and this is fatal to the suit. It appears to me counsel to the 1st and 2nd defendants did not properly consider the provision of Section 22 (1) (a) and 23 of the Law. In those provisions, pre-action notice required to be served on the university or any of its bodies is to be served on the Vice Chancellor and such notice will be deemed to have been served if it is received by the Registrar. I cannot find any portion of the law which supports the contention of the counsel to the 1st and 2nd defendants. I find and hold that the claimant’s suit is not statute barred. In this suit, only the 1st and 2nd defendants filed a defence to the claimant’s claims. The 3rd to the 7th defendants did not file any defence to the claimant’s action neither did they defend the suit filed against them by the claimant. The 3rd to 7th defendants, having failed to file pleadings and defend the suit, all the averments pleaded in the claimant’s statement of facts and the evidence led thereon against the 3rd – 7th defendants are deemed to have been admitted by the 3rd – 7th defendants. See NEPA vs. ADEBGERO (2003) FWLR (Pt. 139) 1556; I.N.E.C vs. A.C (2009) All FWLR (Pt. 480) 732 at 803. Similarly, the 1st and 2nd defendants called one witness in their defence. The DW 1 is one Anthony Mbadinuju, who described himself in his Witness Statement on Oath as an Assistant Litigation Officer in the office of the 2nd defendant. In paragraph 4 of his evidence, the witness stated “That the 1st and 2nd defendants informed me and I verily believed them as follows:” and he proceeded to narrate what he was told by the 1st and 2nd defendants. It is now those facts he was told that forms the evidence in defence of the claimant’s claims when DW1 stated in paragraph 22 of his evidence that- “The 1st and 2nd defendants deny that the claimant is entitled to any relief or all the reliefs sought for in this suit as contained in paragraph 40 of his statement of claim. Furthermore, the 1st and second defendants will at the hearing of this suit urge the honourable court to dismiss the suit as frivolous and gold digging.” Section 126 of the Evidence Act 2011 (as amended) provides that oral evidence shall, in all cases whatsoever, be direct if it refers to — (a) A fact which could be seen, it must be the evidence of a witness who says he saw that fact; (b) A fact which could be heard, it must be the evidence of a witness who says he heard that fact (c) A fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived that fact by that sense or in that manner; The effect of the evidence of DW 1 in paragraph 4 of his evidence is that it was the 1st and 2nd defendants who actually saw, heard or perceived the facts narrated to the witness. That is why the witness testified to what he was told by the 1st and 2nd defendants. Nowhere in his evidence did DW1 tell this court that he personally witnessed any of the facts contained in his evidence. This is even more evident in his answers to questions in cross examination. Where a witness testifies as to statements made to him by another, such a testimony is hearsay and inadmissible unless the witness is able to show that the other person is dead or cannot be found or has become incapable of giving evidence or his attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable. See Sections 37, 38 and 39 of the Evidence Act. DW1 did not explain to this court why the 1st and 2nd defendants, who informed him of the facts he testified about, were not before the court to give evidence. Also, the evidence of DW1 on the facts he was told by the 1st and 2nd defendants is to establish the truth of what he was told and to convince this court, on those facts, to dismiss the claimant’s case. This clearly makes the evidence of DW1 hearsay. In FLASH FIXED ODDS LTD vs. AKATUGBA (2001) FWLR (Pt. 76) 709 at 730, Tobi, JCA (as he then was) observed that- “Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement.” See also UNION BANK PLC vs. ISHOLA (2001) FWLR (Pt. 81) 1868 at 1889. In the circumstance, I find that the evidence of DW1 amounts to hearsay and it is therefore inadmissible. I, accordingly, expunge the evidence of DW1. This order also affects all the exhibits tendered by the witness. Another preliminary issue is the objection raised by the 1st and 2nd defendants’ counsel to the admissibility of Exhibits HE6, HE7, HE8 and HE13 tendered by the claimant. The counsel urged this Court to reject the exhibits for the reason that the documents are secondary copies of public documents and have not been certified; the claimant was neither the maker of these documents nor were the documents addressed to him; the claimant did not lay proper foundation for the admissibility of the documents and the documents have no probative value in law. The exhibits in question are- 1. Letter of Invitation by 2nd Defendant to 3rd Defendant and members of its staff - Exhibit HE6 2. Letter by 2nd defendant to SSG - Exhibit HE7 3. Letter by SSG to the 3rd Defendant - Exhibit HE8 4. Letter by Imo State House of Assembly to the 3rd defendant - Exhibit HE13 I have examined these exhibits. The exhibits are all public documents and they were not written by or addressed to the claimant. What were tendered are photocopies of the documents. They are not certified to be copies of their original. By the combined provision of Sections 102, 89 (e) and 90 (1) c) of the Evidence Act, where a secondary evidence of a public document is to be given in evidence, it is only the certified copy of the public document that is admissible in evidence. See LAWSON vs. ANFANI CONTINENTAL CO. (NIG) LTD (2002) FWLR (Pt. 109) 1736. Exhibits HE6, HE7, HE8 and HE 13 are not in the form in which they can be admissible, not having been certified. The claimant’s counsel has argued that the exhibits are relevant as such they are admissible. Admissibility does not rest only on relevancy. The document must also be in its admissible form. In the case of these exhibits, the form in which they can be admitted is if they are certified. The claimants counsel has also submitted that the claimant has laid proper foundation for the admissibility of the documents when he, in Paragraph 35 of his statement of facts, gave the defendants notice to produce all the documents pleaded in the statement of facts. Section 91 of the Evidence Act, 2011 relied on by the claimant’s counsel on this point is in relation to documents referred to in Section 89 (a) of the Evidence Act and not in respect of public documents. Be that as it may, assuming the defendants refused to produce the original after giving them notice to produce, as contended by the claimant’s counsel, the only secondary evidence of the documents the claimant is permitted by law to tender are the Certified copies and no other. In the result, I find the exhibits to have been improperly admitted in evidence as they are inadmissible. They are consequently expunged. I am not unmindful of the provisions of Section 12 (2) (b) of the National Industrial Court Act 2006 which permits this Court to depart from the Evidence Act in the interest of justice. The decision to depart or not to depart from the Evidence Act is at the discretion of the judge who is to determine what the justice of the case demands. Having settled the preliminary issues, I shall now consider this case. Upon a thorough evaluation of the evidence in this case and the written address of counsels to the parties, it is my view that only one issue arises for determination. Which is: Whether the dismissal of the claimant from his employment is in compliance with the statutory provisions and regulations guiding the claimant’s employment with the 3rd defendant? The claimant’s case is that he was unlawfully dismissed from the employment of the 3rd defendant and he consequently sought the orders of this court, among others, to declare the dismissal null and void. It is settled law that the onus is on the claimant alleging unlawful dismissal to prove that his dismissal is unlawful. And to discharge this burden, the claimant must prove- i. That he is an employee of the defendant, ii. Place before the court the terms of his employment and the terms and conditions of his employment, iii. Who can appoint and who can remove him, iv. In what circumstances his employment can be determined, and v. In what manner the said terms were breached by the defendant. See OLORUNTOBA-OJU vs. ABDUL-RAHEEM (2009) All FWLR (Pt. 497) 1 at 42; IMASUEN vs. UNIVERSITY OF BENIN (2011) All FWLR (Pt. 572) 1791 at 1809; AYORINDE vs. OYO STATE GOVERNMENT (2007) All FWLR (Pt. 356) 709 at 722. In discharging the onus, the claimant testified for himself. His evidence has been reproduced by his counsel in the written address as has been summarized in this judgment but for the purpose of evaluation, I shall briefly set out the facts. It is his evidence that he was employed on 20th December, 2005 by the 3rd defendant as a laboratory technologist. His employment was regularized as a laboratory technologist II on the 5th May, 2009. His employment and regularization letters were put in evidence as Exhibits HE1 and HE2 respectively. The 1st and 2nd defendants, in paragraph 2 of their statement of defence, did not dispute these facts. The claimant proceeded to give evidence of the state of affairs leading to this suit. It is the claimant’s evidence that the 1st defendant, being the visitor of the 3rd defendant university, set up a ten-man visitation panel on 16th April, 2008 to look into the affairs of the 3rd defendant university from the year 2004. Upon being set up, the panel called for memoranda from members of the public on the affairs of the 3rd defendant university and several persons, who include past and present members of the 3rd defendant university submitted memoranda to the panel. At the conclusion of the panel’s assignment, it published a government white paper on the report of the visitation panel. Shortly after the publication of the government White Paper on the Report of the Visitation Panel, the claimant received a letter dated 15th July 2009 and signed by A.N. Igbojekwe, the Deputy Registrar (Establishment), dismissing him from his employment. The claimant challenged his dismissal in Suit No: HOW/181/2010 but while the suit was pending, negotiation ensued and the result was a letter he received from the secretary to the Imo State Government informing the claimant that the government had directed that the claimant be recalled to work. Following this, the claimant discontinued his suit against the defendants and he was recalled and re-instated to his employment vide Exhibit HE9 dated 28th May 2012. The claimant resumed his duties but on 8th October, 2012, he received Exhibit HE14 from the 7th defendant informing the claimant that the letter reinstating him to his employment had been cancelled and that his dismissal still stands. The claimant then contended in his evidence that: i. His employment enjoys statutory flavour and the terms of his contract of service with the 3rd defendant are contained in various statutes regulating his employment. ii. His dismissal is not in accordance with the provisions of the Imo State University Law and the Imo State University Regulation Governing the Condition of Service of Senior Staff in that- a. No notice of allegation of any misconduct was served on him either by the 3rd defendant or 5th defendant, b. He was not given opportunity to make representation nor was he heard before he was dismissed. c. Neither the 3rd defendant, the 5th defendant nor any committee acting on behalf of 5th defendant ever met to consider any allegation of misconduct against him, d. The letter dismissing him did not emanate from the 5th defendant and was not signed by the chairman of the 5th defendant. The claimant tendered the Imo State University Law and the Imo State University Regulation Governing the Condition of Service of Senior Staff and they were admitted in evidence as Exhibits HE15 and HE16 respectively. The case of the claimant is that the terms and conditions of his employment are as stipulated in these exhibits and by virtue of these documents; his employment is protected by statute. In his written address, the claimant’s counsel submitted that the claimant cannot be removed from his employment unless the terms and conditions in Section 17(3) of the Imo State University Law No. 5 of 2004 are complied with. The case of the claimant is that the said provision was not complied with; hence the termination of his employment was unlawful, null and void. Where the terms and conditions of a contract of employment are specifically provided for by statute, it is said to be an employment with statutory flavour or contract protected by statute. See OLORUNTOBA-OJU vs. ABDUL-RAHEEM (supra) at 42; OLANIYAN vs. UNIVERSITY OF LAGOS (1985) 2 NWLR (Pt. 9) 599; OKWUSIDI vs. LADOKE AKINTOLA UNIVERSITY (2012) All FWLR (Pt. 632) 1774 at 1786. Thus, the question whether a contract of employment is governed by statute or not depends on the construction of the contract itself or the relevant statute. The claimant’s employment letter, Exhibit HE1 contains at Paragraph 2 thereof that the claimant’s employment is “subject to the provisions of Imo State University Edict 1985 and any statute and amendments made thereto and to the senior staff condition of service which may be revised or modified from time to time.” The effect of this content of the employment letter is that the claimant’s employment is regulated by statute. The claimant’s counsel has cited the Imo State University Law and submitted that it is the law, in addition to the Imo State University Regulation Governing the Condition of Service of Senior Staff, which governs the claimant’s employment with the 3rd defendant. According to counsel, Section 17 (3) of that law was not complied with before the claimant was removed. The said section of the Imo State University Law provides- “17 (1)--------- (2)---------- (3) if it appears to the Council that there are reasons for believing that any person employed as a member of the staff of the university other than the vice-chancellor or any Deputy vice-chancellor be removed from his employment on the ground of misconduct or inability to perform the functions of his office or any other good cause, the Council shall: (a) Give notice of those reasons to the person in question; (b) Afford that person an opportunity of making representations on the matter to the council; and (c) If that person or any three members of the council so required within the period of one month, with effect from the date of the notice make arrangements; (i) For a joint committee of the council and the senate to investigate the matter; (ii) To afford the person in question an opportunity of appearing before the committee and of making his defence; And if the council, after considering any representations and reports made in pursuance of this sub-section, is satisfied that the person in question shall be removed as aforesaid, the council may so remove him by an instrument in writing signed by the Chairman of the Council on the directions of the council, or substitute a lesser punishment if his offence is considered not grievous”. This provision of the Imo State University Law sets out the procedure to be followed before a staff of the 3rd defendant, other than the vice-chancellor or any Deputy vice-chancellor, can be removed from employment. The procedure for removing a staff of the 3rd defendant, as provided in the law, is a condition in the contract of employment of staff of the 3rd defendant. As a member of staff of the 3rd defendant, there is no dispute that the claimant’s contract of employment has statutory flavour. Therefore, for the claimant to be removed from his employment, the Imo State University Law must be strictly complied with. What is now to be considered is whether the defendants complied with the procedure laid down in the law in the dismissal of the claimant from his employment. From the claimant’s evidence, it is observed that the claimant’s dismissal from his employment on 15th July 2009 vide Exhibit HE3. This dismissal was rescinded and the claimant was recalled to work by Exhibit HE9 on 28th May 2012. The letter recalling the claimant was withdrawn on 8th October, 2012 vides Exhibit HE14. It appears to me from these facts and by the effect of Exhibit HE14, that the claimant’s dismissal from his employment must be considered and taken to be the date and circumstances of Exhibit HE3. From the content of Exhibit HE 3, the claimant was dismissed from his employment on the basis of “the report of the visitation panel” and “government white paper on the report” from which it was “observed” that the claimant was “involved in acts of gross misconduct”. It was on the strength of this observation the “council directed” that the claimant be dismissed. The letter was signed by one A.N Igbojekwe, the Deputy Registrar (Establishment). It is obvious from Exhibit HE3 that the claimant was removed from his employment for acts of misconduct. Section 17 (3) of the Imo State University Law has made provision for the procedure to be followed when such an allegation is made against a staff of the 3rd defendant before he can be removed. The procedure is- i. The notice of the allegation must be given by the council to the claimant ii. The claimant must be afforded an opportunity of making representations on the matter to the council iii. The claimant or any three members of the council so required within the period of one month, with effect from the date of the notice make arrangements: (a) For a joint committee of the council and the senate to investigate the matter; (b) To afford the claimant an opportunity of appearing before the committee and of making his defence iv. That the council, after considering any representations and reports made in pursuance of the sub-section, is satisfied that the claimant should be removed v. The council then removed the claimant by an instrument in writing signed by the Chairman of the Council on the directions of the council. The claimant has contended that this procedure was not followed before he was dismissed. The 3rd to 7th defendants who are in the centre of the claimant’s allegations did not file any process to deny. They also did not call any evidence at all. The 1st and 2nd defendants, who deemed it, fit to defend the suit put in worthless evidence, which has been expunged in this judgment. The effect is that the defendants have not challenged or controverted the evidence of the claimant. The fact is however clear from Exhibit HE3 that it was not the procedure in Section 17 (3) of the Imo State University Law that was followed in the dismissal of the claimant’s employment but a direction of council based on a report of a visitation panel and a government white paper on the report. The Exhibit was signed by a Deputy Registrar and not by the Chairman of Council as required in Section 17 (3). Also, there is Exhibit HE16, the Imo State University, Owerri, Regulations Governing the Conditions of Service of Senior Staff, which contain provisions, which are similar to the procedure in Section 17 (3) of Imo State University Law, on how senior members of staff of the 3rd defendant may be removed from employment. Regulation14 (i) and (iii) provides: (i) The Appointment of a Senior Member of Staff on tenure may be terminated at any time for reasonable cause by Council on the recommendation of a Disciplinary Committee of Council in accordance with the provision of these Regulations. (ii) ----------------- (iii) Before terminating an appointment for “reasonable cause” other than on grounds of infirmity of mind or body, the Disciplinary Committee of Council shall:- (a) Notify the member of staff concerned in writing of the grounds on which consideration is being given to the termination of his appointment; and (c) Give the member of staff concerned opportunity of replying to the allegations against him. (iv) If it thinks it necessary, the Disciplinary Committee may permit the member of staff to appear in person at the meeting at which the case is being considered. (v) The member of staff concerned may appeal to council against the Disciplinary Committee’s decision. Exhibit HE16 contains the terms and conditions of the employment. The regulations therein govern the employment. Where a contract of service provides a requirement for removal of the employee from the employer’s services, such condition must be complied with and any removal not in compliance with the prescribed mode in the condition of service will be tantamount to a wrongful removal of the employee. See GATEWAY BANK vs. ABOSEDE (2001) FWLR (Pt. 79) 1316 at 1334. By the combined effect of Section 17(3) of Exhibit HE15 and Regulation 14 of Exhibit HE16, the power to remove a member of academic or administrative or professional staff of the university other than the Vice Chancellor and Deputy Vice Chancellor from his office on the ground of misconduct or his inability to perform the functions of that office is vested only in the 5th defendant council and the stipulated procedure must be followed. There is no evidence before me to challenge the case of the claimant. I have carefully considered the provision of Section 17 (3) of Exhibit HE15 and Regulation 14 of Exhibit HE16 viz-a-viz Exhibit HE3 and I have no reason whatsoever to disbelieve the claimant’s case. Exhibit HE3 confirmed that the procedure used by the defendants in the dismissal of the claimant was the visitation panel into the affairs of the 3rd defendant and not as prescribed in Section 17 (3) of Exhibit HE18 or Regulation 14 of Exhibit HE19. More so, the persons who signed Exhibit HE3 and HE17 were not described as the Chairman of Council. There is no doubt therefore that the steps taken to dismiss the claimant were not in compliance with the provisions of Exhibits HE15 and HE16. The provisions of Section 17 (3) of Exhibit HE15 and Regulation 14 (iii) of Exhibit HE16 are designed to ensure that the staff facing disciplinary action is afforded fair hearing before a decision affecting his employment is taken. Since I have found in this judgment that the procedure in Section 17 (3) of Exhibit HE15 or Regulation 14 (iii) of Exhibit HE16 was not used in dismissing the claimant from the services of the 3rd defendant, it thus follows that he was not given fair hearing before he was removed from his employment. The effect of my earlier finding on the failure of the 3rd to 7th defendant to file defence or call evidence and the striking out of the evidence of DW1 is that the defendants have no defence to the claimant’s claims. It thus means that the facts and evidence presented by the claimant are not challenged or controverted by the defendants. In this circumstance, I am bound to accept the claimant’s case as proved. In IYERE vs. BENDEL FEEDS AND FLOUR MILL LTD (2009) All FWLR (Pt. 453) 1217 at 1247 it was held that- “Where evidence given by a party is unchallenged or uncontroverted, a court of law must accept and act on it unless it is palpably incredible”. See also OYENIYI vs. ADELEKE (2009) All FWLR (Pt. 476) 1902 at 1922. Counsel to the 1st and 2nd defendants has however made a very interesting argument in his final written address, which argument I think should be considered, even though the factual plank on which the argument was made has collapsed. The counsel to the 1st and 2nd defendants submitted that by Section 16(2) and (3)(b) of the said Imo State University Law, the visitor, that is the 1st defendant, has the power to conduct visitation into the affairs of the 3rd defendant University and may, as a result of the visitation, dismiss any staff of the 3rd defendant for misconduct, inability to perform duties consistent with the office, title or position in the university and it is the duty of any of the bodies in the 3rd defendant to give effect to the instruction given by the visitor in consequence of the visitation. According to counsel, the claimant was dismissed from service following a visitation conducted on the instruction of the 1st defendant into the affairs of the 3rd defendant university. This is in line with the claimant’s case, particularly Exhibit HE3, that it was pursuant to the visitation that he was dismissed. Now, the instruction of the visitor given in consequence of any visitation to which effect should be given, in view of Section 16 (3) (b) of the Imo State University Law is the “instruction consistent with the provisions of this law.” The instruction to dismiss the claimant’s employment is not shown in Exhibit HE3 to have come from the visitor. Assuming without so holding that the instruction came from the visitor, the instruction is not consistent with Section 17 (3) of the Imo State University Law. By that section of the law, the claimant can be removed only by following the procedure laid down therein. The visitor cannot, in whatever guise, circumvent a statutory provision. It is now settled that an employee in a statutorily flavoured employment can only be removed in the manner specified in the relevant statute. In OLORUNTOBA-OJU vs. ABDUL-RAHEEM (supra) at 46 to 47, the Supreme Court held- “When an office or employment has a statutory flavour in the sense that its condition of service are provided for by the statute or regulations made there under, any person in that office or employment enjoys a special status over and above the ordinary master and servant relationship. In the matter of discipline of such an employee, the procedure laid down by such statute must be fully complied with. If not, any decision affecting the right or reputation or tenure of office of that employee will be declared null and void. When a statute has conferred on anybody the power to make decisions affecting individuals, the court will not only require the procedure prescribed by the statue to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness. Where contract of service enjoys statutory protection, the latter can only be terminated in the manner prescribed by the governing statutory provisions, a breach of which renders the act ultra vires and void. The contract cannot be discharged on the agreement of the parties without compliance with the enabling statutory provisions. There is a presumption that when the legislature confers a power on an authority to make a determination, it intends that the power shall be exercised judicially in accordance with the rules of natural justice.” See also OLANIYAN vs. UNIVERSITY OF LAGOS (1985) 2 NWLR (Pt. 9) 599. From the foregoing, I find that the dismissal of the claimant from the services of the 3rd defendant’s services was done in utter violation of the provisions of Exhibits HE15 and HE16. I also find Exhibits HE3 and HE14 to be a result of an unlawful process. They ought to be set aside. It is so ordered. The dismissal of the claimant from service is no doubt improper. Where there is an improper removal of an employee from an employment protected by statute, the consequence is that the employee has not been removed from office. In other words, once dismissal or termination of employment is declared null and void, there is nothing legally standing in the way of the claimant from having his job back with its attendant rights, benefits and privileges. See KWARA POLYTECHNIC ILORIN vs. OYEBANJI (2008) All FWLR (Pt. 447) 141 at 199; OLANIYAN vs. UNIVERSITY OF LAGOS (supra). In such a situation, the court has the power to order the reinstatement of the employee. The right to be reinstated is a right that follows a declaration that removal was unlawful, null and void. In the circumstance of this case where it is found that the contract of employment is guided by statute, the claimant is entitled to a consequential relief of reinstatement and payment of his outstanding salary from the time he was unlawfully dismissed. See OMIDIORA vs. FEDERAL CIVIL SERVICE COMMISSION (2008) All FWLR (Pt. 415) 1807. The claimant has sought a declaration of this court in relief (a) contained in his statement of facts that the defendants are estopped from reneging from their letter of 28/5/2012, that is Exhibit HE9, having, by that letter, caused the claimant to alter his position when he discontinued Suit No. HOW/181/2010 he instituted against the defendants. In his argument on issue one of his final written address, the claimant’s counsel submitted that the defendants, having led the claimant to alter his position by discontinuing his said suit against the defendants, they cannot be allowed to turn around to dismiss the claimant’s from the services of the 3rd defendant. In view of my findings in this judgment that the dismissal of the claimant, in the first place, unlawful and void and considering the effect of such findings, it is my view that the claimant’s relief (a) is no longer relevant. In the result, this court hereby grants reliefs (b) to (i) sought by the claimant. For the avoidance of doubt, this court hereby orders as follows- a. It is hereby declared that the dismissal of the claimant from the services of the 3rd defendant is unlawful, illegal, and null and void as it was done in violation of the statute and regulation guiding the Claimant’s contract of employment with the 3rd Defendant. The letters of dismissal dated 15th July 2009 and 8th October 2012 are consequently hereby set aside. b. The 3rd to 7th Defendants are hereby ordered to re-instate the Claimant forthwith to his employment and the position as Senior Technologist II in the Department of Microbiology in the 3rd Defendant University and also to place the Claimant on the level he should be presently in the employment of the 3rd defendant had his employment not been unlawfully tampered with. c. The 3rd to 7th Defendants are hereby ordered to pay to the Claimant, all his outstanding wages, salaries, allowances and other emoluments accruing to him from the date of his unlawful dismissal from his employment till the date of this judgment. d. The Defendants are hereby restrained from further removing the Claimant from his employment with the 3rd Defendant University, and/or dealing, and/or interfering with the Claimant’s employment with the 3rd Defendant University in any manner inconsistent with the Imo State University Law or the Conditions of Service regulating the Claimant’s employment with the said 3rd Defendant. e. Cost of N200,000.00 is hereby awarded in favour of the Claimant. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Judge