IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUMI
DATED: 8TH NOVEMBER, 2022 SUIT NO: NICN/ABJ/283/2020
DR UDUGBAI ILEVBARE -CLAIMANT
1. MEDICAL AND DENTAL COUNCIL OF NIGERIA
2. HON MINISTER OF HEALTH - DEFENDANTS
Mazi Afam Osigwe SAN with N. E. Umeatuegbu Esq, S.E. Agbara Esq., Justin Nwachi Esq., Emmanuel Otebiyi Esq and Susan Mobolaji Esq for Claimant.
Prof Nasiru Aliyu SAN with Sanusi Musa Esq., P.S. Chechet Esq., C.N. Onyia Esq., I. Tomori Esq., Abdulrasak Abdulmumin and A.S. Yakasai Esq for the 1st Defendant.
T.S. Abdulkadir for 2nd Defendant
1. A perusal of the Originating process evinces that this action is declaratory. The law is of common that a party who seeks a declaratory relief must rely on the strength of his own case to prove that he is entitled to the reliefs sought. Thus, a Claimant who seeks a declaratory relief needs to satisfy the Court on the balance of probabilities to be entitled to his reliefs. As such, declaratory reliefs cannot be granted in the absence of credible defence or on admission of the defence but on satisfactory, credible and verifiable evidence by the Claimant. See; Umera v. N.R.C 10 NWLR (Pt 1838)349@390, Paras E-F, 390, 391, Paraas E-F; Adesina v. Airfrance 8 NWLR (Pt 1833)523@555-556, Paras H-B (SC) and Ogah v. Ikpeazu 17NWLR (Pt 1594)299@336-337, Paras G-A. However, the law does not preclude such a Claimant from relying on aspects of the defendant’s case which supports his own. See the case of Hanatu v. Amadi  9 NWLR (Pt 1728) 128, Paras A-C.
2. It is the Claimant’s case that he was an employee of the 1st defendant and rose through the ranks to Conmess 07, Step 9 which is an equivalent of the Director cadre and his employment and particularly his cadre in the 1st defendant as a Deputy Registrar is regulated by the Medical and Dental Council Establishment Act. He was alleged to have altered the date of his birth in his registration folder and for which he was queried and also gave a response. He was subsequently invited to appear before the 1st defendant’s Appointment, Promotion and Discipline Committee to answer to the said allegation and other allegations. The Committee conducted its proceedings in breach of his right to fair hearing as the committee presented the case of the 1st defendant and also cross examined him. The Committee equally made use of documents like the forensic report and the letter from University of Ibadan which he was never obliged copies. Equally in breach of his right to fair hearing, he was not allowed by the Committee to hear the testimonies of other persons who testified before the Committee and also not allowed to cross examine them. The proceedings of the Committee was tainted with malice and bias as the Committee had made up its mind as regards him. He was unlawfully interdicted and placed on half salary which was supposed to be N340,729.84 but was paid lesser than that in September while he was not paid for August 2020. According to him the defendants’ actions were tainted with malice and bad faith. The documents allegedly altered has nothing to do with his employment in the 1st defendant the medical registration folders and employment folders kept by the 1st defendant are separate. He is ordinarily supposed to retire in the year 2024. Claimant urged the Court to restrain the 1st defendant from ejecting him from his official residence.
3. It is against this backdrop that Claimant took out a General Form of Complaint against the defendants on the 14th day of October, 2020 which was subsequently amended on the 1st of day of March, 2021 wherein he sought the following reliefs;
A. A Declaration that the Appointment, Promotions and Disciplinary Committee (AP&DC), violated the right of Claimant to fair hearing in the manner it arrived at its decision to recommend the termination of Claimant’s employment.
B. A Declaration that the termination of Claimant’s appointment by the Defendant based on the reports of the Appointment, Promotions and Disciplinary Committee (AP&DC), is unlawful, ultra vires and unconstitutional.
C. An Order of mandatory injunction compelling the Defendant to reinstate the Claimant to the active service of the Medical and Dental Council of Nigeria with effect from October 7, 2020(07/10/2020)
D. An Order of this Honourable Court compelling Defendant to pay the Claimant all his outstanding salaries and allowances calculated from the period commencing on August 1, 2020 until the date of his actual reinstatement.
E. AN ORDER of Court that the Claimant is entitled to the possession of the official premises located at Block 11, F-Close, 1st Avenue, Gwarinpa Estate, Gwarinpa Abuja, which he occupies by virtue of his employment until the date of his retirement.
F. AN ORDER of this Honourable Court compelling Defendant to pay Claimant the sum of N1,144, 201.85( N681,459.68 + N462,742.17), One Million, One Hundred and Forty Thousand, Two Hundred and One Naira, Eighty-Five Kobo), being the sum of money not paid the Claimant during the period of his unlawful interdiction.
G. The sum of N100,000,000.00 (One hundred Million Naira) only being General and exemplary damages for emotional trauma, pains, and stress the Claimant has passed through arising from his termination.
H. The sum of N2,000,000.00 (Two Million Naira) as the Cost of this suit.
4. The 1st defendant on its own part admitted that Claimant was its employee and his employment is regulated by its establishment Act and the Public Service Rules as applicable to the Council. The Appointment, Promotion and Disciplinary Committee in the course of its investigation discovered serious infraction of the Public Service Rule by the claimant. The investigative Committee never acted as a judge or accuser and its proceedings were conducted in line with the rules of natural justice. That the registration files of all medical and Dental Practitioners in Nigeria are statutorily kept by the 1st defendant under the Registration Department as against any medical practitioner even if he was an employee of the 1st defendant and the information contained in the forms in the registration folders are usually handwritten and as such susceptible to alterations and Claimant also used long hands in the relevant forms in the registration folder as submitted to the 1st defendant. The incidence leading to the dispute of this case caused some other staff who are all subordinate to the Claimant who is the Deputy Registrar to be queried. The Committee in asking the other staff who were involved as to their involvement in the scheme of things asked Claimant to step out and which Committee is not a law Court but an administrative body which is only obliged to hear facts as regards an allegation and allow a person to defend himself. Claimant was given opportunity by the Committee to know and respond to all the explanations offered to the Committee by the other persons. Claimant at the point of his entry at the University of Ibadan had supplied his bio data information to the University. The defendant had written to the Inspector General of Police for forensics on the affected forms and in response contracted Premier forensic Consults Ltd. To the 1st defendant, the alteration and changing of record by a Public Officer is a breach of the Public service Rules. Claimant is only entitled to be paid for the 20 days he worked in August and a letter has been written to the office of the Accountant General after Claimant complained. The acts of the 1st defendant or its Registrar in the discipline of the Claimant is not in any way fraught with malice or bad faith.
5. Also filed by the 1st defendant is a counterclaim. The 1st defendant/Counterclaimant vide its counterclaim averred that Claimant/defendant to counterclaim was its employee who was alleged of alteration of documents and which act amounts to serious misconduct under the Public Service Rules which is punishable with dismissal. Claimant was investigated for four allegations including alteration of documents and they were established against him. However, the defendant by its error was swayed by the recommendation of the Appointment, Promotion and Discipline Committee that Claimant/defendant to counterclaim be compulsorily retired instead of the mandatory prescribed punishment of dismissal. That by the Public Service Rules the only prescribed punishment for serious misconduct is dismissal. Whereof the 1st defendant/counterclaimant prays the Court for the following reliefs through Motion for amendment of Counterclaim filed on the 26th of January, 2022 which was not objected to;
a. A declaration that the 1st Defendant’s AP & DC had conducted its investigation proceedings against Claimant in accordance with due process of law and the Claimant’s right to fair hearing was not breached.
b. A Declaration that the Counter Claimant have properly and duly prove a case against the Claimant of the alteration of his date of birth from 9th June 1962 to 9th June 1964.
c. A declaration that the actual date of birth of Claimant is 9th June 1962.
d. A declaration that the Counter Claimant has no power to impose punishment less than the minimum provided in the Public Service Rules, where a Public Officer is established to have flouted a particular provision of the Rules.
e. An Order substituting the compulsory retirement of the Defendant with an outright dismissal in accordance with the Provision of the Public Service Rules No PSR 030407
f. An order affirming the termination/retirement of Claimant’s employment with the 1st Defendant.
6. The 2nd defendant on its own part maintained that Claimant was an employee of the 1st defendant who was given query in line with due process in line with the principle of fair hearing. Although the 1st defendant keeps two files, Claimant abused his position as a former head of Registration to take unlawful custody of his registration folder to tamper with his date of birth. Claimant having not given satisfactory answers to his query, he was investigated by the Appointment and Disciplinary Committee of the 1st defendant and was given fair hearing by the Committee. The Committee found Claimant liable of misconduct which punishment is dismissal in line with the Public service Rules. Claimant having been compulsorily retired cannot be allowed to succeed the 1st defendant or occupy any position in it.
7. On the 9th day of November, Claimant opened his case and testified for himself by adopting his written statement on oath in this case as his oral evidence. Documents marked and admitted as Exhibits U-U12 were tendered and admitted through him. He was subsequently cross examined by the learned Counsel on behalf of the 1st defendant. Documents marked Exhibit U13 and U14 were tendered in favour of Claimant by a subpoenaed witness Abdulganiyu Oladokun, after which Claimant closed his case. On the 12th day of November, 2021, the 1st defendant opened its case and called one Fiyinfoluwa Adeeko who testified as DW1 who was subsequently cross examined by learned counsel on behalf of Claimant. One Ibrahim Yau was also called as DW2 and he was also cross examined by learned Claimant counsel. Abdulganiyu Oladokun equally testified as DW3 and documents tendered and marked as exhibits O-O13 were admitted through him. On the 14th day of December, 2021 1st defendant called its subpoenaed witnesses. One Ayodele Olufemi a retired Police forensic expert testified as DW4 and document marked exhibit O14 was tendered through him. One Abayomi Samuel who was equally subpoenaed was called as DW5 and a document was tendered through him and admitted as exhibits O15. He was subsequently cross examined by learned counsel on behalf of 2nd defendant who tendered exhibit O16 through him. Afterwards the 1st defendant/counterclaimant closed its case while learned counsel on behalf of 2nd defendant informed the Court that they would not call any witness.
8. On the 26th day of January, 2022, learned counsel on behalf of 1st defendant counterclaimant filed his final written address in this case wherein he distilled the following issues for determination to wit;
i. Whether or not the Claimant has proved any breach of his right to fair hearing against the 1st Defendant/counterclaimant’s AP&DC during the cause of investigation of the allegations leveled against him to warrant declaring the termination of his employment as unlawful, having regards to the fact, evidence and circumstance of this case?
ii. Whether or not the 1st Defendant/Counterclaimant has proved the Counter Claim against the Claimant, and particularly, when the Claimant failed to file defence to the counterclaim.
9. On issue one, it is learned counsel’s submission that Claimant in his relief is not hinging any relief on the fact that he has not committed the alleged misconduct. He submitted that the proceedings of the Committee was guided by the provisions of the Public Service Rules which provides that a public officer’s investigation must be done in accordance the twin pillars of fair hearing. He submitted that fair hearing involves giving a party an opportunity to present his case as well as ensuring the judex is not bias. He relied on JSC v. Isede & Anor LPELR-46956(CA). He submitted that the above principle must be complied with by both administrative and judicial bodies and its true test lies in whether a reasonable person who was present feels justice has been done. He relied on the case of Adebayo A.E. & Ors v. The Governing Board, Rufus Giwa Polytechnic Owo, Ondo State & Anor LPELR-41757(CA). He submitted that from the contents of Exhibit U13, it is clear that Claimant was given fair hearing by the AP&DC. He submitted that the Committee been an administrative and not judicial body is not even bound to call Claimant to testify, suffice he is given an opportunity to make representation to the Committee in writing. He submitted that there are guides to the tests whether fair hearing has been complied with by an administrative panel. He relied on the case of case NEPA v. Arobieke LPELR-115121 (CA). He submitted that Claimant when appearing before the Committee never requested that he be allowed to cross examine any of the persons who was called as witnesses. He submitted that Claimant’s allegation is an afterthought.
10. Learned counsel submitted that once an opportunity of a fair hearing has been given to a person and he decided not to take advantage of it, he cannot afterwards be heard to complain that he was not given fair hearing. He relied on the case of Itsueli v. S.E.C 2 NWLR (Pt 1284)329@ 363, Paras C-E, 364-365, Paras G-A. He submitted that the Committee has substantially complied with the rules of natural justice in the conduct of its investigation. He submitted that Claimant through out his pleadings and evidence, merely gave a hoax as to the allegation of breach of right to fair hearing. He submitted that Claimant merely tried to downplay the issue of alteration of public records which he was investigated for. He submitted Claimant misconceived the provision of the Public Service Rules as serious misconduct include alteration or falsification of records., suppression of records and withholding of files and which all evidence points to the fact that the alteration was done by no other but Claimant. As such, Claimant ought to be dismissed. He submitted that despite positive of averments of the defendant in the counterclaim as to the allegation against Claimant, he opted not to file a defence to the counterclaim which is admission on his part. He relied on the case of Eluku & Anor v. Ejiofor & Ors  LPELR-49261(CA)15-24, Paras C-E. He submitted that where a statement of defence raises new facts which were not covered by the averments in the statement of claim, a claimant ought to file a reply to respond to the new facts. He relied on the case of Usman v. First Bank & Ors  LPELR-47086(CA)29-30, Paras D-E. He urged the Court to hold that the Committee conducted its investigation in accordance with the rule of fair hearing.
11. On issue two, he submitted that a counterclaim is a separate and independent action from the main suit. He cited in support the case of R. Benkay (Nig) Ltd v. Cadbury (Nig) Plc 6 NWLR (Pt 9766)338@360-361, Paras H-A. He submitted also that where a Claimant fails to file a defence to counterclaim, same is deemed admitted. He cited in support the case of Amsel Ltd & Anor v. Union Bank LPELR-42980(CA)65-66, Paras B-B. He submitted that for the 1st defendant counterclaimant to succeed in its action of falsification of date of birth, certain factors must be proved. He relied on the case of Odiawa v. FRN LPELR-4230(CA) and Alake v. State 7 NWLR (Pt 205)567. He submitted that the defendant/counterclaimant has been able to prove forgery against Claimant. That the falsification can even be seen by mere sighting of the affected documents. He submitted that circumstantial evidence before the Court points to the conclusion that Claimant is guilty of forgery as alleged. He submitted that the counterclaimant has successfully proven it counterclaim against Claimant and urged the Court to so hold.
12. On the 2nd day of February,2022 learned counsel on behalf of the Claimant/defendant to counterclaim filed his final written address wherein he formulated the following issues for determination thus;
1. Did the conduct of the disciplinary hearing by the 1st Defendant’s Appointment, Promotions and Disciplinary Committee (AP&DC) not violate the claimant’s right of fair hearing as provided for in S. 36 (1) of the 1999 Constitution?
2. Assuming without conceding that 1st Defendant properly conducted the disciplinary hearing that led to termination of Claimant’s employment, has 1st Defendant proved the alleged case of forgery against the Claimant to justify the termination of his employment?
3. Can the honourable court grant the relief sought in the counterclaim?
4. Has the Claimant proved his entitlement to the reliefs sought?
13. On issue one, learned counsel submitted that the conduct of the hearing of the Appointment, Promotion and Disciplinary Committee is fraught with prejudicial mindset and bias against Claimant. He submitted that it is clear from the facts highlighted as regards the conduct of the APDC that Claimant was denied fair hearing. It is his submission that a hearing conducted in breach of the rule of fair hearing is null and void. He cited in support, the cases of Adigun v. A.G. Oyo State 1 NWLR (Pt 56)197 and Okafor A.G Anambra State 6 NWLR (Pt 200)659. He submitted that Claimant’s right to fair hearing was violated when he was ordered out and was not allowed to witness the testimony of other witnesses against him. He submitted that a person who is being tried must be allowed to stay throughout all the proceedings in compliance with the rule of natural justice. He relied on the dictum of Sankey JCA in Ebong v. SEC LPELR-43548(CA)9-12, Para C; Darma v. Ecobank LPELR-SC.20/2005 and Adegbola v. Idowu LPELR SC.584/2013. He submitted that Claimant was issued query in Exhibit U3 which he responded to before he was subsequently invited to appear before the APDC to answer to four allegations. He submitted that Claimant while before the Committee was denied the opportunity of hearing the testimony of other persons who testified and the right to cross examine them which fact was equally admitted under cross examination by DW1. Learned counsel submitted that it was glaring that Claimant was not given fair hearing by the Board. He submitted that fair hearing is a question of facts and it is when the facts are established that the law would be applied. He cited in support, the case of Newswatch Communications Limited v. Alhaji Ibrahim Attah 12 NWLR 9Pt 993)144. He submitted that the right to fair hearing does not only entail that a party be given an opportunity to be heard, it equally entails that the hearing be fair and be done according to the twin pillars of natural justice. He cited in support the following cases; Mohammed v. Olawumi 2 NWLR (Pt 133)458@485; Ntukidem & Ors v. Oko & Ors LPELR-2075(SC); Dingyadi v. INEC 18 NWLR (Pt 1224)1;Waziri v. Legal Practitioners Disciplinary Committee & Anor LPELR -55595(SC)28-29, Paras F-A and Umar Mohammed v. The Nigerian Army 1CHR 470@485. He submitted that it is the duty of this Court to set aside a decision that is tainted with bias. He cited in support Idakwo v. Ejiga 13 NWLR (Pt 783)156; Chitra Knitting and Weaving Manufacturing Limited v. F.O. Akingbade LPELR-40437(SC). He submitted that the doctrine of fair hearing is not a technical doctrine and once an appellate Court comes to the conclusion that a party who ought to be heard was not heard, the judgment entered is bound to be set aside. He cited in support Kotoye v. Central Bank of Nigeria 1 NWLR (Pt 98)419; Ogundoyin v. Adeyemi  13 NWLR (Pt 730)403; Olufeagba v. Abduraheem  18 NWLR (Pt 1173)384. He submitted further that the right to fair hearing cannot be compromised on any ground and is not only a common law right but also a constitutional right. He relied on the following cases; Bamgboye v. University of Ilorin 10 NWLR (Pt 622)290; Agip (Nig) Ltd v. Agip Petroli International & Ors 5 NWLR (Pt 1187)348 and; Agbiti v. Nigerian Navy 4 NWLR (Pt 1236)175.
14. On issue two, learned counsel submitted that the defendant has not proved the allegation of forgery against the Claimant. He submitted that no evidence was led in support of the grouse of the defendant that Claimant dishonestly altered his date of birth to confer additional 2 years on himself. He submitted that the forms which were alleged to have been altered were forms which relate to his registration for practice as a medical practitioner which every medical practitioner is eligible to fill and as such had nothing to do with Claimant’s employment. He submitted that PW3’s answer under cross examination leads credence to this. He submitted that the allegation against Claimant is criminal in nature and ought to be proved beyond reasonable doubt. He relied on the following cases; Nwobodo v. Onoh 1SCNLR 121; Abibatu Folami v. Floracole 2 NWLR (Pt 133)445; Jibril v. Military Administrator Kwara State & Ors 3NWLR (Pt 1021)357. He submitted the defendant has not discharged the burden on it to prove forgery beyond reasonable doubt.
15. Learned Counsel also submitted that DW4 who tendered a forensic report does not meet the criteria to be met to testify as an expert. He submitted that Section 68 of the Evidence Act, 2011 regulates the admissibility of expert evidence and which is to the effect that such person must first prove his knowledge and skill in that particular field. He relied on the case of Omisore & Anor v. Aregbesola & Ors  LPELR-24803(SC)111-111, Paras E-F. He submitted that DW4 only stated facts relating to his qualification and experience in paragraphs 2 and 3 of his statement on oath but did not tender any documentary evidence in support of same. He submitted that before the Court can treat the witness as an expert, the Court must be satisfied as to his expertise and qualifications. He relied on the case of Ude v. Osuji 5 NWLR (Pt 151)488@513; Ayadi & Ors v. Mobil Producing (Nig) Unltd LPELR-41599(CA)12-14, Paras E-C. He submitted that DW4 did not submit his credentials and that the submission of credentials is a condition precedent for the reception of his evidence. He submitted that the forensic report is short of expert evidence as its paragraph 2 is suggestive. He submitted that DW4 does not qualify as an expert and the defendant has not been able to discharge the burden of proof on them to prove forgery beyond reasonable doubt. He equally urged the Court to expunge the data page of the of the Claimant’s international passport sought to be tendered as it is a public document and ought to be certified. He relied on Section 90 of the Evidence Act and the case of Ayili v. Yilbuk & Ors LPELR-24323 (SC).
16. Counsel submitted jointly on issues three and four. Learned counsel submitted that the counterclaim is incompetent as the Court lacks the power to substitute its own decision for that of the 1st defendant. He submitted that the facts of this case do not equally support the grant of the reliefs sought in the counterclaim. It is learned counsel’s submission that Claimant has proved his case to be entitled to the reliefs sought because he has shown that he has a reasonable cause of action. He relied on the case of Attorney General of Bayelsa State v. Attorney General of Rivers State LPELR-615(SC); Ibrahim v. Osim 3 NWLR (Pt 82)271-272. He submitted also that Claimant has made out a case entitling him to the relief sought. He relied on the cases of Kalu v. FRN & Ors ; Aminu Mohammed v. The State 7 NWLR (Pt 1032)152. He submitted that Claimant has placed before this Court sufficient and credible evidence to entitle him to the reliefs sought. He relied on the case of Emeka v. Chuba Ikpeazu LPELR -41920 (SC); Agi v. Ogbeh  11 NWLR (Pt 990)65@116.
17. Learned counsel submitted that it is the duty of Claimant to adduce sufficient evidence in support of his case. He posited that Claimant has proved his case by the standard of proof required of him. He argued that the careful examination of Exhibits U2-U12 and the admission of DW1 and DW2 as to the absence of Claimant when they gave evidence will bring the Court to the irresistible conclusion that Claimant has discharged the burden on him. Learned Counsel submitted further that the credibility of Claimant’s witness has not been called into question and it is the opinion of the trial Court as to the credibility of the witness must be preferred to that of any higher Court. He relied on the case of Sagay v. Sajere 6 NWLR (Pt 661)360; Ebba v. Ogodo 372; Nnorom v. Ezeani 5NWLR (Pt706)203. He submitted that the burden of proof is not static and swings between parties and the Court should be able to decide when it has shifted. He cited in support the case of UBN v. Ajagu LPELR-1978(CA).
18. Learned counsel submitted that Claimant has proved his case and urged the Court to award specific, special and exemplary damages against the defendants. He relied on the case of Odiba v. Azege 9 NWLR (Pt 566). It is his submission that in assessing the damages the Court may consider the motive of the defendant, its conduct and the manner and the fact that its actions have aggravated the injury of the Claimant. He submitted that the Court can award damages as facts that support its award are in existence. He urged the Court to enter judgment in favour of Claimant.
19. I have painstakingly gone through all processes filed in this suit, the Exhibits tendered by the parties and the submissions of counsel. I am of the view that the issues that best determines this suit before this Court are;
1. Whether Claimant by the State of Pleadings and preponderance of evidence is entitled to the reliefs sought.
2. Whether the counterclaimant has proven its counterclaim to be entitled to the reliefs sought.?
20. In the case of University of Calabar v. Essien  LPELR-3416 (SC)1@56-57, Para F, the Apex Court held that in an action whereby the plaintiff or claimant seeks declaration that the termination of employment was not done in accordance with the terms and condition of service and thus wrongful, the most fundamental issue to put before the Court is the condition of service which governs the employment. Such an aggrieved party must aver it as a cardinal issue in the pleadings and also lead evidence in the Court of non-compliance with the terms and condition of service. The Court in University of Calabar v. Essien, supra went further that if the conditions of service have been pleaded, the plaintiff /claimant may now go ahead to prove that the disciplinary procedure was not conducted fairly. Claimant vide paragraph 10 of the amended statement of facts averred that his position particularly as Deputy Registrar in the service of the 1st Defendant is regulated by the Medical and Dental Council of Nigeria Establishment Act and the Public Service Rules (hereafter referred to as PSR). He equally averred vide paragraph 13 of the amended statement of facts that the PSR contains the whole gamut of rules guiding the exercise of disciplinary control over officers in the Federal Public Service and also the 1st defendant established mechanism yet he was not given the opportunity to make his case in his own defence. The 1st defendant vide paragraph 4 of the amended statement of defence admitted Claimant’s averment as to the applicability of the Medical and Dental Practitioners Act (hereafter referred to as MDP Act) and the PSR to claimant’s employment. It is trite that facts admitted need no further proof. See the following cases; Mba v. Mba 15 NWLR (Pt 1641) 177@189-190, Paras G-A and; Jolasun v. Bamgboye  18 NWLR (Pt 1225)285@307, paras A-B, 311, Paras C-D. Thus, it is not in doubt that Claimant’s employment is governed by the MDP Act and PSR. It is trite that an employment is said to be of statutory flavor where it is protected by statute which provides for the appointment and termination of the category of the employee in question. See the following cases; KJSC v. Tolani,  7NWLR (Pt 1671)382399-400, Paras E-B (SC); PHCN Plc v. Offoelo 4NWLR (Pt 1344)380(SC) and; NIIA v. Ayanfalu 2 NWLR (Pt 1018)246@265-266, Paras G-A(CA). It is therefore clear without any shadow of doubt that Claimant’s employment is one invested with statutory flavor.
21. In the instant case, Claimant’s grouse by his relief ‘A’ is as regards the denial of fair hearing in the proceedings of the 1st Defendant’s Appointment, Promotions and Disciplinary Committee in line with the PSR and the rule of natural justice. It is his contention that he was not allowed to hear the evidence of witnesses called against him. It is trite that when an employment is invested with statutory flavour, the procedure for determination of such employment must adhere strictly with the procedure laid down in the statute. Any other manner of termination inconsistent with the relevant statute will be unlawful. See the following cases; Banke v. Akure North Local Govt 6 NWLR (Pt 1455)400@421, Paras A-B and; Osumah v. EBS 17NWLR (Pt 902)332@350, Paras D-E. The provisions for discipline of a public servant under the PSR is contained in Chapter 3 of PSR particularly Sections 2 to 6 of the said Chapter 3. The procedure for discipline of a public servant is as contained in Rule 030306 (i)-(xiii) of Section 3 of Chapter 3 of the PSR. However, it should be noted that the same PSR provides specifically for the Discipline in parastatals like the 1st defendant. Chapter 16 of the PSR is instructive as it relates to parastatals like the 1st defendant. Rule 160101 of Section 1 in Chapter 16 of the PSR provides that Parastatals is a government-owned organization established by statute to render specified service(s) to the public. It is structured and operates according to the instrument establishing it and comes under the policy directives of government. Rule 160102 goes further to classify parastatals into four categories namely; regulatory agencies; General Services; Infrastructure/Utility Agencies and; Security Agencies. There is no doubt from the combined effect of Rules 160101 and 160102 above that the 1st defendant being a regulatory agency is a parastatal within the purview of the PSR. By the provisions of Rule 160501 Section 5, Chapter 16 of the PSR as it relates to discipline in parastatals, the power to exercise disciplinary control over officers in parastatals is vested in the supervisory Boards/Councils in accordance with the respective conditions of service. In the same vein, the subsequent Rule 160502 provides thus; “The provisions of section 2 to 6 in chapter 3 of the public service rules shall guide all parastatals in addressing disciplinary matters provided that where reference to the federal civil service commission, Head of Civil Service of the Federation or the permanent secretary, the board/councils shall perform such functions.” The above provision is clear and requires no special aid to understand and is to the effect that the provision of Sections 2 to 6 in chapter 3 which relates to discipline of Public Servant shall guide parastatals like the 1st defendant in addressing disciplinary matters. Accordingly, the above highlighted procedure as contained in Rule 030307 of the PSR as regards disciplinary procedure shall guide parastatals in disciplinary matters. In my view, this does not mean that there should be strict compliance with the procedure/steps but that it should guide them in taking steps to discipline. Claimant in the instant case admitted to have been given query which he responded to and he was equally requested to appear before the Appointment, Promotions and Disciplinary Committee (AP&DC) before he was relieved of his employment. Claimant in this case vide paragraph 22 of the amended statement of material facts contends that in violation of the rules of natural justice the members of the AP&DC presented the case of the 1st defendant against him, presented evidence against him as well as cross examined him, in other words they are the accuser and the Judge in the case.
22. It is well settled position of the law that in the determination of the employment of an employee for misconduct, he is to be given fair hearing especially where the employment is of statutory flavor. In the case of Zideeh v. RSCSC 3 NWLR (Pt 1022)554 the apex Court per Ogbuagu JSC held thus; “...it is now firmly settled that in statutory employment, just as in private employment, an employer can summarily dismiss the servant in all cases of gross misconduct provided of course, the employee is given the opportunity of fair hearing, I believe that he may not have made that contention. See the recent case of Francis Arinze v. First Bank of Nig. Ltd. (2004) 12 NWLR (Pt. 888) 663; (2004) 5 SCNJ 183; (2004) 5 S.C. (Pt. 1) 160; (2004) 5 S.C. 35.” See also the case of NEPA v. Arobieke, supra: 7NWLR (Pt 979)245@277-278, Paras G-B. In the same vein, the Apex Court in the case of Oloruntoba-Oju & Ors v. Abdul-Raheem & Ors  LPELR-2596 (SC) held thus; “In order to justify the dismissal or termination of appointment of an employee, the employer must be in a position to prove to the Courts satisfaction. (a) That the allegation was disclosed to the employee; (b) That he was given a fair hearing; (c) That the council believed that the appellants committed the offence after hearing witnesses.” It then means that fair hearing is important in the determination of an employee’s employment for misconduct as in this instant.
23. It is expedient at this stage to take a look at the minutes of AP&DC to see whether the AP&DC really breached Claimant’s right to fair hearing. The minutes of the meeting of the AP&DC is here as Exhibit U13 (also O9). I have read the gamut of Exhibit U13 and I find that the AP&DC upon the invitation and appearance of Claimant informed him of the allegations against him and adopted the question and answer modality in his trial before it as regard the allegations against him. Claimant was asked questions which he answered. At some points claimant was confronted with documents which were being referred to. In my own view the AP&DC merely informed him of the allegations against him and asked questions as regard each allegation to which he answered and at every relevant time he was confronted with documents. Who else was supposed to put questions to him if not the members of the AP&DC? If I may ask; I do not understand if Claimant was expecting the trial before the AP&DC to be like that of a regular Court where he presents his case and would be cross examined by a counsel on behalf of the defendant and then the defendant would present its own case. In the case of Arobieke v. N.E.L.M.C 5 NWLR (Pt 1613)398-399, Paras G-A, the apex Court held that an administrative panel such as respondent’s Ad-hoc Disciplinary Committee, in its enquiries, may not necessarily strictly adhere to such rules of natural justice as exists in law Court. In the same vein, the apex Court per Bello CJN (Blessed Memory) in the case of Baba v. N.C.A.T.C 5NWLR (Pt 192)388@427-428, Paras H-E held that administrative panels are not bound to follow the procedure and practice of the Court; that although they are bound to observe the rule of natural justice, that a person who may be adversely affected by their decision is entitled to be given adequate opportunity not only to know the case against him but also to answer it. It is clear from the above decisions of the apex Court that administrative tribunals or panels need not follow the strict rules of fair hearing as it pertains to the regular Courts. Thus, it was a misconception on the part of Claimant to maintain that because the AP&DC presented to him the case against him and put questions to him (which he called cross examination) which he answered a breach of his right to fair hearing has occurred. In the same vein, confronting him with the documents in question will not amount to presenting evidence against him, they were merely affording him an opportunity to make his defence to the observations on the documents. He was given opportunity to be represented by a counsel of his choice, but he did not call in his counsel to represent him at any stage. I am therefore unable to see how his right to fair hearing has been breached in this wise.
24. It is equally the contention of Claimant vide paragraphs 23 and 25 of the amended statement of facts that he was not allowed to know the evidence of the witnesses, that the panel only related the evidence to him and he was not allowed to cross examine the persons who came to testify against him. The 1st defendant in response vide paragraphs 26 and 27 of the amended statement of defence averred that the AP&DC is not a law Court but an administrative fact finding Committee of the 1st defendant which is not only obliged to hear explanations as to facts and circumstance surrounding any disciplinary related allegation against any staff to effectively defend any allegation leveled against him for fair hearing and that Claimant was duly given an opportunity to know and respond to all the explanations offered by the AP&DC by the four mentioned queried staff. It is clear from the contents of Exhibit U13, the Minute of the Discipline Meeting that the evidence of some persons who were also involved in the issue were taken behind Claimant which was equally admitted by DW1 under cross examination. The pertinent question at this stage is will the above amount to a denial of fair hearing by the APDC? In answering this question, I will make copious references to some decided authorities of the apex Court and the appellate Court which by the doctrine of stare decisis binds me. The Supreme Court in the case of Baba v. N.C.A.T.C, supra at pages 433-434 per Omo JSC when considering a similar issue and concurring with the lead judgment held thus; “I agree with my learned brother, NNAEMEKA AGU, JSC that failure to allow him cross examine these petitioners in the circumstances of this panel does not amount to a denial of natural justice/fair hearing. He was given an opportunity to present a memorandum after being made aware of allegations against him in the petition. That is all the fair hearing he was entitled to. In any event it is my view that the Afinni panel proceedings could not have tainted the subsequent termination of his appointment because the authorities of the Training Centre after considering the Report of the panel (which had ended) and arriving at their own conclusions thereon issued him with a query setting out specific allegations for him to answer. It is after further consideration of his answer to these specific allegations that their decision to terminate his appointment was taken. The Afinni panel was therefore at best a remote cause of his termination.”[ Emphasis mine]. In the same case, Bello CJN stated inter alia at pages 227-428, Paras H-E thus; “The decision of this Court in The Queen v. Director of Audit(WR)(1961)N.S.C.C 292…appear to be on all fours with the decisions in England that an administrative tribunal is not bound to follow the procedure and practice of the Court of law; that although it is bound to observe and comply with the principles of natural justice, that a person who may be adversely affected by its decision is entitled to be given adequate opportunity not only to know the case against him but also to answer it. However, he is not entitled to oral hearing unless such a hearing is expressly prescribed. The absence of oral hearing or an opportunity to heard before an administrative tribunal does not necessarily tantamount to a denial of natural justice. Since cross-examination is an oral hearing, it follows from those decisions that its mere denial by an administrative tribunal such as the Afinni panel, did not offend the principles of natural justice in the circumstances of the case. The evidence shows the substance of the evidence of the witnesses was given to the Appellant and he commented in writing on it. I am satisfied the principles of natural justice were not offended by the Afinni Panel.” [Emphasis mine]. In the same vein, the Court of appeal in the case of NEPA v. Arobieke, supra@275, Paras D-H, 277, Paras A-D held amongst other things that it would not amount to a denial of fair hearing or breach of natural justice when the Ad-hoc committee which was merely administrative, investigative and exploratory and has no right to determine finally on the right of a person refuses to give a party oral hearing at all or the right to cross examine the witnesses or even where it obtained some of its evidence from other quarters or sources behind the person complaining. See also Udo v. C.S.N.C. 14 NWLR (Pt 732)116@153-154, Paras F-D. It is thus clear that an administrative panel denying a party an opportunity to cross examine or hear oral evidence of those testifying against him will not be a breach of the right to fair hearing.
25. In the instant case, I have held earlier that the procedure for discipline of public servants contained in Rule 030306 of the PSR which provides that an affected officer be allowed to cross examine witnesses called against him is only a guide to the 1st defendant as a parastatal by the provisions of Rule 030306 and as such parastatals are at liberty to adopt any procedure which must be in tune with the audi alterem partem rule. Claimant in the instant case before appearing at the AP&DC was given query which he responded to and he was equally notified of his trial before the AP&DC and he was allowed to defend each of the allegations against him. In fact, going by the content of Exhibit U13, the evidence of the other persons which indicted him were relayed to him and he was allowed to respond to them accordingly. However, I do not lose sight of the answers given by Claimant under cross examination on 9th November, 2021 produced hereunder thus;
Q: When the members of the investigation committee relayed the evidence of the other witnesses to you, you never informed them that you needed to cross examine the witnesses.
A: The Committee Chairman informed me that there was an allegation against me by some members of staff of the 1st defendant. I never knew them, it was only one Adeeko that was mentioned. I was never invited to confront them. I requested that I would know them but they never obliged me rather I was chased out.
By the above oral evidence of Claimant, only the testimony of one Adeeko was relayed to him and he had requested to cross examine the witnesses but he was not obliged and was chased out. Let me first say that since the proceedings were recorded in writing as in Exhibit U13, oral evidence of what transpired at the proceedings cannot be given by Claimant because same does not fall within the category of documents in which secondary evidence may be given of its content under Section 89 of the Evidence Act. See; Nammagi v. Akote 3NWLR (Pt 1762)170@193, Paras B-F; v. Sahara Energy Ltd v. Oyebola  LPELR-51806 (CA) and; Adetoro v. U.B.A Plc 13NWLR (Pt 1104)255. Allied to this principle is that oral evidence will not be allowed to contradict documentary evidence. See the following cases; Arije v. Arije & Ors LPELR-44193(SC)1@36-37, Para E; Fakomiti v. Ilori & Anor LPELR-46367(CA)1@25, Para A and ;Michael Dan Udo v. Chief C. Udom Eshiet  8 NWLR (Pt 363) 482@503, Paras B - D. The ipse dixit of Claimant under cross examination that it was only one Adeeko’s evidence that was relayed to him and that he requested to cross examine but was chased away will not discredit clear contents of Exhibit U13 which specifically shows at pages 12 and 13 that it was not the testimony of Adeeko alone that was relayed to him but also that of one Ibrahim Yau which equally indicted him and to which he responded to. His ipse dixit that he requested to cross examine the witnesses but was not obliged but chased out by the defendant will equally not be allowed to contradict of discredit clear contents of Exhibit U13 at pages 12 and 13 that shows that there was never a time Claimant after being told the testimony of the witnesses requested to cross examine them as alleged in his oral testimony. From the contents of Exhibit U13, the evidence of the persons that were given behind were relayed to him by the AP&DC as seen at pages 12 and 13 of Exhibit U13 and he was equally allowed to react to them. The 1st defendant still has the prerogative to decide whether or not to follow the recommendations and report of AP&DC which is a merely administrative and investigative panel not a judicial panel. In view of the above, I am satisfied that the AP&DC has not breached the Claimant’s right to fair hearing in this wise.
26. In another breathe, Claimant vide paragraphs 28-30 of the amended statement of facts averred that he was never given some of the documents the AP&DC relied on to find him guilty of the allegations against him, like the letter from the University of Ibadan and the purported forensic report from Premier Forensic Consult which was dated 4th September, 2020 long after the AP&DC had finished its proceeding on the 4th day of September, 2020. The 1st defendant in response vide paragraph 30 of the amended statement of defence averred that there was no document that was used against Claimant that he was not availed a copy and that Claimant himself had stated before the Committee that his lawyer had written to the University of Ibadan to controvert their letter issued to him. I have perused the minutes of meeting of the A&PDC Exhibit U13 and the Report of the Meeting of the AP&DC which is Exhibit U14 proceedings with the finery of a toothcomb and the mastery of an eagle eye and I cannot find anywhere where the AP&DC made use of the forensic report which is herein as Exhibit O14 at the investigation Committee. In fact, Exhibit O14 was only forwarded by the Police to the Registrar of the 1st defendant on the 7th day of October, 2020 which was the same day the Claimant was notified of the termination of his appointment as seen in Exhibit U2. In the same vein, there is nowhere in Exhibit U13 where Claimant was confronted with any question as regard the letter from University of Ibadan. In fact, it was Claimant himself at page 9 of Exhibit U13 that brought up the issue of University of Ibadan and a letter written by his Lawyer to that effect. Hereunder reproduced is the relevant portion;
He was asked why he had to submit different affidavit of date of birth to the same organization, since the one he submitted in 2007 preceded that of 2008
He explained that at the time of his birth, his birth was not registered. In 1979, that his elder brother swore to an affidavit with is date of birth 9th June, 1962. In 1983, his father had to depose to another affidavit giving his date of birth as 9th June, 1964 and that the earlier one deposed to by his brother was incorrect and should be disregarded. He added that he submitted both documents to the University of Ibadan when he was a student and that his lawyers had written to the University of Ibadan to request for his correct date of birth, as a response to the letter written to the MDCN by the University of Ibadan on the same matter.
The above portion of Exhibit U13 is clear and comprehensible. As stated supra there is nothing in Exhibit U13 to show that the AP&DC considered any letter from the University of Ibadan in Claimant’s appearance before it. In fact, as captured above, it was Claimant that brought up the issue of the letter and he stated that his lawyer has written a letter to the University in response to a letter written to MDCN. Claimant was the one that brought up the issue and stated that his lawyer had written Exhibit U7 to which the University responded to his lawyer by writing Exhibit O16 (the heading of Exhibit O16 speaks for itself and also in sync with the testimony of DW5 to that effect. The letter of invitation of Claimant to appear before the AP&DC Exhibit U4 which he tendered shows that he was obliged copies of documents which includes his official records in the 1st defendant and his international passports which were the documents that were clearly considered against him as seen in Exhibit U13. However, Claimant when appearing before the Committee himself brought up the fact that a letter has already been written to the University by his lawyer for confirmation of his date of birth. I have also not seen anywhere in either Exhibits U13 and U14 where the AP&DC made use of the letter written by the University of Ibadan as alleged by Claimant. Let us even assume that the AP&DC had considered the said letter in making its recommendation of termination of Claimant’s employment, it had the right to do so since Claimant himself had brought the issue of the letter written by his lawyer to the University to confirm his date of birth to the attention of the AP&DC. In my view the AP&DC in its quest for proper investigation ordinarily should be concerned about the said letter Exhibit O16 since Claimant has informed it of the fact that he has written his University to confirm his date of birth.
27. I am also mindful of another letter written by the University of Ibadan furnishing the 1st defendant with date of birth of one Sanusi and Claimant that is Exhibit O8 is also in this case. It is clear from Exhibit U4 which is the letter of invitation that Exhibit O8 was not part of the documents Claimant was furnished with in his invitation to the AP&DC. But then a perusal of Exhibits U13 and U14 will show that this letter equally from the University of Ibadan was not also used by the AP&DC during Claimant’s physical trial or in its report or recommendations. However, the point needs to be made that even if the AP&DC at any stage whether during its investigation or in its deliberations had used the said forensic report and the letters from the University of Ibadan that is Exhibit O8 and O16 failure to avail Claimant the said documents will not amount to denial of fair hearing because the Court in the case of NEPA v. Arobieke, supra held amongst other things that it would not amount to a denial of fair hearing or breach of natural justice when the Ad-hoc committee which was merely administrative, investigative and exploratory and has no right to determine finally on the right of a person had obtained some of its evidence from other quarters or sources behind the person complaining. Thus, it means that the AP&DC as an administrative body has a right to obtain evidence from other sources even behind Claimant.
28. Claimant vide paragraph 31 of the amended statement of facts has averred that the AP&DC cannot be a judge and accuser in respect of the allegation against him as same would amount to a denial of fair hearing. It is trite law that the rule of natural justice connotes two maxim audi alterem patem and nemo judex in causa sua. The principle of nemo judex in causa sua implies that one shall not be a judge in his own cause which is the rule against bias. See Eze v. Unijos 2 NWLR (Pt 1760)208@230, Para D-F. Claimant herein by the above averment is alleging that the AP&DC acted as a judge in its own cause by being the accuser and the judge. In the instant case, the allegations against Claimant were never made by the AP&DC in my respectful view. In fact, one of the allegations made against him as regards the possession of his personal registration folder was first made against him by virtue of a query issued by the Registrar on 21st February, 2020 herein as Exhibit U3. The invitation of the Claimant to appear before the Committee Exhibit U4 was issued by the Registrar inviting Claimant to appear before the Committee for the listed allegations against him. Neither Exhibit U3 nor Exhibit U4 which contains the allegations made against Claimant was issued by the AP&DC. I do not therefore understand how Claimant is alleging that the AP&DC was his accuser. The AP&DC was merely an investigative Committee which was to investigate the allegations against Claimant as had been made against him in Exhibits U3 and U4. Again, the Registrar who is the Claimant’s Superior who issued these documents was not a member of the AP&DC as shown on Exhibit U13. The allegations against Claimant were made before the AP&DC even sat, so it is not possible for one to say it was the APDC that was the accuser and a judge at the same time. Exhibit U4 was merely notifying him of the allegations which he is to answer to before the AP&DC. That cannot by any stretch of imagination be interpreted to mean that it was the AP&DC that was accusing him. One cannot say that the AP&DC is acting as an accuser and a judge in its own cause. In view of all reasoned supra, I cannot find how the AP&DC breached Claimant’s right to fair hearing. Consequently, Claimant’s relief ‘A’ fails.
29. The above being said, it is right to consider relief ‘B’; It is a well settled principle of our law that an employer where he gives reason for termination of an employment, he must justify the reason to the satisfaction of the Court. See the case of I.H.A.B.U.H.M.B. v. Anyip 12NWLR (Pt 1260)1@19, Paras E-F and; Shell Petroleum Co Ltd v. Chief Victor Sunday Olanrewaju 18NWLR (Pt 1118)1@19-20, Paras A-B. A perusal of letter of termination that is Exhibit U2 shows that Claimant’s employment was determined because of the report of the investigation and recommendation of the AP&DC. Thus, it is clear that Claimant’s employment was terminated for an act of wrongdoing which he has been found culpable of. Exhibit U4 id est, the letter of invitation to the AP&DC, evinces that Claimant was alleged of the following; “unauthorized possession of your registration folder; alterations of your date of birth from 9th June 1962 to 9th June 1964, in your registration folder; possession of two international passports, one being 9th June 1962 and the other bearing 9th June, 1964 and forgery of your affidavit of declaration of age”. The allegations against Claimant which culminated in his investigation by the AP&DC and the eventual termination of employment will lead me at this stage to consider a germane issue of the competence of the AP&DC to investigate and pass verdict on these allegations.
30. The law is sacrosanct that where an employee is alleged to have committed a crime by his employer, the former must be given adequate opportunity to explain himself before a Court vested with criminal jurisdiction before any disciplinary action is taken against him by his employer. See the following cases; CBN v. Dinneh 15NWLR (Pt 1798)91@118, Paras B-E; Onwusukwu v. Civil Service Commission 10 NWLR (Pt 1731)179@200, Paras A-D; Nasarawa State University &Anor v. Nekere  LPELR-44550 (CA); Okeme v. Civil Service Commission, Edo State & Ors  LPELR-6825 (CA); Tionsha v. JSC Benue State 6NWLR (Pt 508)307. It is worthy of note from the facts and circumstances of this case that of all the four allegations against Claimant in the invitation to appear before the AP&DC, only one which is the allegation of forgery of statutory declaration of age is criminal. In view of the clear and abundant judicial authorities, Claimant ought to have been charged before a Court of competent jurisdiction in respect of the allegation of forgery and the AP&DC ought not to have passed a verdict on the allegation of forgery because the proper venue for the ventilation and trial of the allegation of forgery is the Court. This is not however to say that the AP&DC did not have power to investigate Claimant for the other three allegations which to my mind are mere allegations of misconduct within the powers of an employer to try. Thus, while the AP&DC and by extension the 1st defendant has the power to investigate Claimant for the allegations of; unauthorized possession of registration folder; alteration of date of birth from 9th June 1962 to 9th June, 1964 and; possession of two international passports, one bearing 9th June, 1962 and the other bearing 9th June 1964, which are mere allegations of misconduct, there is no power conferred on it to try Claimant for forgery of affidavit of declaration of age. Although I find from Exhibit U14 which is the recommendation of the AP&DC that the Committee in paragraph 00.05.04 at page 10 stated that it could not establish the allegations of forgery of the affidavit sworn to by Claimant’s father in the year 2008 that is Exhibit O1 which means that it did not pass a verdict of guilty on Claimant as regard the allegation of forgery. Be that as it may, I set aside the part of the trial and investigation of Claimant before the AP&DC on allegation of forgery because the Court is the proper venue of such. However, the AP&DC and by extension the 1st defendant has power to investigate the three other allegations which are just acts of misconduct without criminal element. Thus, the actions of the defendant would only be considered from the point of view of the three other allegations.
31. The above being said, it is important at this stage to consider whether or not the 1st defendant has justified the reason given for the termination of Claimant’s employment which is misconducts. The first allegation against Claimant in this case is alteration of documents in his registration folder which he has consistently denied vehemently. The 1st defendant in support of its assertion that Claimant altered the disputed documents had relied on Exhibits O2, O3, O4, O6 and O14. Exhibits O2, O3, O4 and O6 are the disputed documents while Exhibit O14 is an expert opinion forwarded to the 1st defendant from the office of the Inspector General of Police. The said Exhibit O14 which contains an expert opinion was tendered through DW4 who is its maker. Let me at this stage consider the objections of learned Claimant counsel to the testimony of the expert. According to learned counsel DW4 did not meet the requirement to testify as an expert as he has not shown by documentary evidence the he possessed the skill. He maintained that it is duty of this Court to determine whether or not a witness is an expert. As rightly submitted by learned Claimant counsel it is the duty of this Court to determine whether or not DW4 is an expert. From the facts and circumstances of this case and the evidence before this Court, it is clear that the 1st defendant wrote the Inspector General of Police for his Forensic Department in the Police Force to examine the affected documents as seen in Exhibit O12. See also paragraph 35 of the amended statement of defence. The Inspector General in response to Exhibit O12 contracted DW4 who by his uncontroverted oral evidence is a Retired Police forensic expert. See paragraph 34 of the amended statement of defence. It is equally clear that in response to the said Exhibit O12 written by the 1st defendant, the office of the Inspector General of Police forwarded the said forensic report to the 1st defendant as seen in Exhibit O14. From the Forensic evidence before the Court, it is apparent that it was the Police Forensic Department that contracted DW4 who as stated in his examination in chief is a retired Police forensic expert. It then means that the Police has held DW4 out as an expert. In my view the presumption of regularity is in favour of this official act of the Police Force being the office saddled with the responsibility of producing forensic report as in this present, holding out DW4 as a forensic expert. Such presumption is no doubt rebuttable. The Claimant should have rebutted this presumption by cross examining DW4 as to the qualification and experience he said he had in his oral testimony. However, Claimant in this case chose not to cross examine DW4 when he testified on the 14th day of December, 2021. The effect of this is that Claimant has accepted DW4’s testimony in paragraphs of his written statement on oath as to his qualifications and experience. In view of the above, I am of the humble view that DW4 is an expert with sufficient forensic knowledge and experience having been held out as such by the Nigerian Police Force whose acts enjoys presumption of regularity and which has not been rebutted in this case.
32. The point must also be made that the Court is not bound to accept the evidence of an expert. In the case of Odunewu v. Agoro 7NWLR (Pt 1830)545@571, Paras A-C, the Supreme Court held that a Court is not bound to accept expert evidence, particularly when it is inconsistent with the trajectory of events as testified by other witnesses. The Court went further that but where the expert witness has been cross-examined as to his qualifications, experience and credibility, the Court can accept and rely on his evidence if credible. In the instant case, the claimant chose not to cross examine DW4 who has been held out by the Police forensic department as an expert as to his qualification. Neither has his oral evidence as to his qualification or the evidence in the report been controverted. It is trite that evidence not controverted or challenged by the opposite party who had the opportunity to do so should be acted upon by the Court if it credible. See Boye Industries v. Sowemimo 3NWLR (Pt 1817)195@225-226, Paras H-A, 226, Paras D-E. The Claimant did not controvert the evidence of DW4 in his oral evidence as to his experience and qualification. As stated supra he has been held out by the Police to be an expert and the presumption has not been rebutted. In the same vein, his evidence has not been controverted or challenged by that of another expert. In the same case of Boye Industries v. Sowemimo, supra @219, Paras C-F, the apex Court held that the evidence of the Police handwriting expert was admissible, uncontradicted and unchallenged. It was credible and had no rival of equal potency. Thus, the trial Court and the Court of Appeal therefore had no reason in law to discard and not act on it. The Court equally went further that a Court cannot discard an uncontradicted testimony of an expert and then impose its own opinion. The evidence of DW4 in this case is consistent with the trajectory of events as testified by other defence witnesses in this case to the effect that Claimant truly altered his date of birth on the registration forms. The said evidence has equally not been controverted in this Court. It is equally credible and thus believable in the absence of any other report. I therefore do not see any reason why this Court should discard same. I will proceed to explain why this Court finds the said expert evidence credible.
33. In the case of Dim v. Enemuo 10 NWLR (Pt 1149)353@396, Para G, the apex Court held that a piece of evidence is credible if it is worthy of belief and must not only proceed from credible source, it must be credible in itself in the sense that it should be natural, reasonable and probable in view of the entire circumstance. See also the following cases; Emeka v. Chuba Ikpeazu, supra 379, Paras E-F and Agbi v. Ogbeh 11 NWLR (Pt 990)65@116, Para E. Exhibit O14 proceeded from the DW4 through the Office of the Inspector General of Police who has held out DW as a forensic expert as stated supra, the said expert opinion contained in Exhibit O14 which states that truly Claimant altered the date of birth by super imposing 4 on the figure 2 is itself credible. I say so in view of the fact that these alterations as seen on Exhibits O2, O3, O4 and O6 are visible for all to see. It is equally clear on a mere glance of Exhibit O7 that the Claimant’s age on item ‘7’was altered from 45 to 43. The alterations are so apparent and runs through several documents that even a blind person by the feel of hand can detect the manifest alterations.
34. The conclusion of the expert that 1962 was super imposed with 1964 is equally credible in the sense that from the facts of this case, the year 1962 was at some point as admitted by Claimant his official date of birth. Claimant had maintained that his elder brother sometimes in the year 1979 swore to an affidavit stating that his date of birth was 9th June, 1962 which according to him was later corrected by his father vide an affidavit made in the year 1983 herein as Exhibit U6 wherein his father stated that his correct date of birth is 9th June 1964. Although Claimant claimed to have submitted this subsequent affidavit to the University of Ibadan while in school to effect the necessary change on his date of birth, this Court finds that Exhibit O16 tendered by DW5 a subpoenaed witness which this Court finds to be written by the University of Ibadan in response to Claimant’s lawyer’s letter states otherwise. The fifth paragraph of the letter Exhibit O16 is instructive wherein the School stated that there is no record of the submission of the second affidavit stating 9th June, 1964 (Exhibit U6) as Dr Ilevbare’s date of birth in the University. In fact, the fourth paragraph of the letter states that the Claimant himself had applied for his academic transcript dated 21st September, 1998 upon which the same date of birth of 9th June, 1962 was indicated. In fact, this Court finds from Exhibit U10 tendered by Claimant that at some point he had requested that a letter be written to his Pension Fund Administrator Stanbic IBTC Pension Manager informing it of the need to correct his date of birth from 9th June 1964 to 9th June 1962 which is in consonance with the first affidavit he had admitted before the AP&DC was made by his brother. In fact, DW5 in this case reiterated it under cross examination that Claimant’s true date of birth is 9th June, 1962 which is what is contained in the School record. It then means that DW4 was not grandstanding when he stated that 1962 was imposed with I964. DW4 did not just mention 1962 by a figment of his own imagination. Thus, DW4’s opinion could not be faulted. In view of the foregoing, the opinion of DW4 contained in Exhibit O14 is very reliable and credible and this Court accepts same as one with probative value.
35. Also, the conclusion of the expert is also consistent with the facts and evidence in this case. I say so in view of the fact that Claimant right from his appearance before the AP&DC has maintained that these obvious alterations were not alteration but ‘hard print’ which according to him was due to the failure of a pen which results in pressing harder and when asked who made the hard prints, he admitted it could possibly be him. See Exhibit U13. Let me say that it is an insult on the intelligence of any reasonable man for Claimant to claim that these obvious alterations were not alterations but hard prints. If they are hard prints, how come the ‘hard print’ keeps happening with each document (Exhibits O2, O3, O4, O6 and O7) at the particular portion that deals with Claimant’s year of birth and not on other dates? These cannot be merely coincidental. The justicia or the effigy of justice may be blind but judges are not blind and should not be blind. See Boye Industries v. Sowemimo, supra at page 216, Para B. This Court can see well and knows that those were alterations and not just mere hard prints.
36. It is clear that it was Claimant that altered the documents. In fact, Claimant who had told the AP&DC that the said alterations were not alterations but mere hard prints when asked who could have made the ‘hard prints’ he responded that they could have possibly been made by him or someone else who might possibly be in possession of the folder. This to me is more of an admission by Claimant that he was the one that made those alterations he termed ‘hard prints’. In view of all the above, I am of the unwavering view that the evidence of DW4 is credible and can be relied on by this Court more so where same has not been challenged or controverted by the Claimant. From the foregoing, it is clear from the uncontroverted evidence of DW4 and other Exhibits in this case that Claimant actually made the alterations to his registration folder. Thus, I am of the respectful view that the 1st defendant has justified that Claimant committed the misconduct of alteration of official documents made against him and which was one of the misconducts which he was investigated for by the AP&DC leading to the subsequent determination of his employment. As such, it cannot be declared a nullity.
37. Now, let me address the second allegation of being in possession of his registration folder. It is the contention of Claimant in this case right from the AP&DC that he was not in possession of his registration folder and that he did not know how his registration folders which contained those altered documents got to his office. He maintained that it was one Mr Adeeko, the Secretary to the HOD Registration who came to his office and suddenly picked the Registration folder from his cabinet but he did not know how it got there. It is worthy of note that Claimant at the earliest opportunity in his response to query as contained in a document which is part of Exhibit U3 never stated this fact that it was one Mr Adeeko that picked the folder from his office that he was not the one that gave the said Mr Adeeko. It is equally unbelievable that Claimant’s registration folder will be in his office right in his office cabinet for so long and he would not see it until it was allegedly picked by the said Mr Adeeko. In fact, from documentary evidence contained in Exhibit O10 tendered by the 1st defendant which is a handing over note made as far back as 26th September, 2016 stated categorically on the fourth page thus; Please, note that DR. U. Ilevbare has in his custody his own file which has been in his possession prior to my returning to the Registration department in March 2014. The ipse dixit of Claimant that he was never in possession of the registration folder can never be allowed to discredit clear contents of Exhibit O10 that states otherwise. All these facts point to one singular fact that Claimant was in possession of the registration folder and was the one who made the alterations. I am thus of the view that the 1st defendant has been able to substantiate this allegation against Claimant on the preponderance of evidence.
38. I do not lose sight of the contention of Claimant in his amended statement of material facts that the registration forms do not have any bearing with his employment with the 1st defendant. See paragraph 43 of his amended statement of material facts. This was also the contention of learned Claimant counsel in his final written address when he relied on the evidence elicited from DW3 under cross examination as to the forms. The effect of this contention is that Claimant wants this Court to believe that the said form is merely for his registration as a Medical Doctor and has no bearing with his employment with the 1st defendant. Noteworthy is the fact that Claimant himself vide paragraphs 54, 55 and 56 of the amended statement of material facts admitted that the 1st defendant relationship with him is in dual capacity by the following averments;
54 The Claimant’s relationship with the 1st Defendant is two-fold: first as medical practitioner registered in line with the requirement of the Medical and Dental Practitioners Act and secondly as a staff of the 1st Defendant.
55 A file is maintained by the 1st Defendant with respect to each of the dual capacities in which Claimant is related to or associated with the 1st Defendant.
56 While the 1st Defendant maintains a Registration file in respect of the Claimant (just like any other medical practitioner with full, provisional or limited registration with the 1st Defendant), it also keeps a separate file which relates to Claimant’s position as a staff of the 1st Defendant.
The above lends credence to the fact that the relationship between Claimant and the 1st defendant is interwoven. The 1st defendant vide its amended statement of defence maintains that alteration or changing any record by Public officer in a position of trust is an abuse of office and gross misconduct which touches on the employment of that officer and attracts punishment of dismissal under the PSR. It is clear from the above averments of Claimant that Claimant himself agrees that the Defendant has a dual relationship with him; one as the regulator of his profession as a medical Doctor and secondly as his employer. There is no gainsaying that Claimant’s position as the Deputy Registrar of the 1st defendant is only because first and foremost, he is a Medical Doctor, were Claimant not a registered medical doctor, he would not have attained the position of Deputy Registrar. Thus, it means that anything that affects his stand as a medical doctor will eventually affect his employment as the Deputy Registrar of the 1st defendant. Now, Claimant was alleged to have changed his date of birth in his registration file which is in possession of the 1st defendant. There is no doubt that his registration as a Medical Doctor is the foundation of his employment. If he was not a registered Medical Doctor, he would not be qualified to practice as a medical Doctor and would not be able to occupy the position he is occupying in the 1st defendant. Besides, the allegation of taking unlawful possession of his registration folder which is in custody of his employer will necessarily give the employer right to discipline him. Thus, it cannot be said that the alterations of the registration folder has no bearing with his employment.
39. This Court is of the respectful view that the alteration of his date of birth in the forms is to align them to his claim that he was born on 9th of June 1964 and not 9th of June 1962. The alteration of his date of birth and age on the relevant forms was obviously done in furtherance of the new date of birth of 9th June 1964 which he is by virtue of Exhibit O1 claiming. Claimant’s alteration of the said forms is only to perfect the state of things across board as to his date of birth which is what in this instance determines his retirement age with the 1st defendant. That is, Claimant wanted to bring those documents in line with the age which he is claiming by virtue of his employment and which forms he had access to by virtue of the fact that he is an employee of the 1st defendant who also doubles as the regulator of his profession in whose custody his registration folder is. A cursory look at the affected forms in Exhibit O2, O3, O4 and O6 will show that these forms were already filled by Claimant before and shortly after the date of his employment with the 1st defendant going by their dates and the date of Claimant’s employment in Exhibit U. Claimant vide Exhibit O1 has been maintaining the date of birth of 9th June 1964 in the 1st defendant contrary to what is contained in those forms. In fact, this Court believes that the alteration of the said forms which predate his employment with the 1st defendant and shortly after his employment is part of the scheme of things in Claimant’s grand plan to remain in office beyond what his actual date of birth allows him to. Claimant knew that the disputed forms which obviously had been filled before and shortly he got employment with the defendant in 2007 could give him away if he did not change the information of his date of birth contained in them since what is contained in his record with the defendant is 9th June 1964 as it is in Exhibit O1 which he said his father deposed to when he was employed. It was in Claimant’s plan to perfect his carefully orchestrated plan that he altered the date of his birth in his registration forms contained in his registration folder with the 1st defendant from 9th June 1962 to 9th June 1964 by super imposing the figure 4 on 2 which was written before in order to bring them in line with his assumed date of birth in the 1st defendant. Claimant knew that since the 1st defendant was in possession of both his employment and medical registration folders, he could be given away. Hence, the need to alter the said forms which he had filled earlier before the adoption of the new date of birth in order to bring same in line with his data in his employment folder which is equally in possession of the 1st defendant. Claimant was only trying to be smart but obviously clever by half with the way the alterations were made. Thus, it cannot be said that the alleged alteration of the said registration forms has nothing to do with his employment.
40. It is equally worthy of note that one of the allegations against Claimant is not only alteration of date of birth but also possession of his registration files. By the provisions of Rule 030418 of the PSR officers shall not as a general rule have access to official and secret record relating personally to themselves. The registration folder though was in respect of his right to practice as a medical practitioner, they are equally in the possession of his employer the 1st defendant who equally doubles as the regulator of medical practice in Nigeria. Although Claimant was an employee of the 1st defendant who is the regulator and in whose possession the registration folders are, Claimant was not supposed to have access to his own personal records outside his official duty. The access of Claimant to his personal official records unlawfully and without due authorization is what enabled the alteration of the said registration forms. If Claimant had not been in unlawful possession of the registration folder as an employee of the 1st defendant, he would not have been able to alter the forms. In fact, the point must be made that if Claimant was not an employee of the 1st defendant, he would not have had access to registration folders whether of himself or of any other registered practitioner. Thus, Claimant’s employer who is also the regulator can question Claimant as regards his inordinate and unlawful possession of his registration folder and the subsequent alterations of the forms in it. In essence having access to his personal registration folder which was in the custody of his employer as the statutory regulator of the medical profession has everything to do with his employment. Were the forms he was alleged to have altered not in the custody of his employer as the regulator, he would not have had access to same? Thus the 1st defendant as his employer could question him if he unlawfully took custody or possession of any of the registration folders which the employer was supposed to keep. The action of the claimant is in fact, is a misconduct for using his office to perpetrate an unlawful act. In view of the foregoing, I am unable to agree with Claimant that the alteration of the said forms has nothing to do with his employment with the 1st defendant.
41. As regard the allegation of forgery of the affidavit of declaration of age which I have earlier held that the AP&DC had no jurisdiction to try, defendant vide paragraph 37 of its statement of defence made an allegation of forgery against Claimant and gave particulars of the forgery. It is trite that allegation of forgery being one of crime in pleadings must be specifically pleaded and proved beyond reasonable doubt. See the following cases; A.S.E.S.A v. Ekwenem 13 NWLR (Pt 1158)410 and UBN Ltd v. Odusote Bookstores Ltd 9 NWLR (Pt 421)558@595, Para F. The defendant vide the particulars given maintained that Claimant’s affidavit of birth sworn in 2008 by Claimant’s father was sworn after the father’s death because Claimant’s father was reported dead since 2007. The defendant in support of its assertions relied on Exhibit O9. Section 363 of the Penal Code Cap 53 LFN, 2004 provides that whoever makes any false document or part of a document, with intent to cause damage or injury to the public or to any to support any claim or title or to cause any person to part with property or to enter into express or implied contract or with intent to commit fraud or that may be committed, commits forgery; and a false document made wholly or part by forgery is called a forged document. See also the case of Dairo v. FRN 10 NWLR (Pt 1733)482@519, Paras D-E. The law is now settled that a party who alleges forgery of a document must produce the original document from which the forged one was made. Thus, an allegation of forgery cannot be grounded in respect of a document in the absence of its original or genuine one. See the following cases; Omon v. Ekpa 15 NWLR (Pt 1696)504@537, Paras D-H; Agi v. PDP 17 NWLR (Pt 1595)386@457, Paras G-H (SC) and APC v. PDP 15 NWLR (Pt 1481)1@66-67, Paras H-B (SC). The defendant in this case did not produce the original from which the other statutory declaration of age Exhibit O1 was made. Although they maintained that the document which was purportedly made by Claimant’s father in 2008 was forged because Claimant’s father had died since 2007. It relied on Exhibit O which was a request for casual leave. It is clear from the content of Exhibit O which speaks for itself that Claimant had on the 3rd day of December, 2007 shortly after his employment with the 1st defendant sought for a casual leave to enable him perform burial rites for his late father. This fact was also admitted by Claimant under cross examination on the 9th day of November 2021 even though he stated he could not remember the date. Going by the content of Exhibit O and the clear admission of Claimant under cross examination, one would be right to say that Claimant’s father died in the year 2007 or before the year 2008. It is against the natural course of events for someone who had died in the year 2007 to depose to an affidavit in 2008. Thus, Exhibit O1 which was purported to have been sworn by Claimant’s father in 2008 will therefore not enjoy the presumption of regularity that is supposed to be in its favour and as such is not credible. However, this alone is not sufficient to ground forgery because as stated supra, an allegation of forgery cannot be grounded in respect of a document in the absence of its original or genuine one. See Omon v. Ekpa, supra and Agi v. PDP, supra. Thus, even though Exhibit O1 which Claimant had stated that his father made in 2008 is not credible, that will not be enough reason to ground forgery as the 1st defendant has not pleaded or tendered the original and the true birth certificate or declaration of age of Claimant. However, this is not to say that Exhibit O1 is reliable. The credibility of Exhibit O1 is in question in view of the death of Claimant’s father prior to when it was made.
42. Claimant in this case has relied on Exhibit U6 in proof of his assertion that he was born on the 9th day of June, 1962 which exhibit purports to be a statutory declaration of age made by his father in the year 1983. He maintained that his father equally made statutory declaration of age upon his employment with the 1st defendant in the year 2008 stating his age to be 9th June 1964. By Claimant’s assertion Exhibits U6 and O1 were sworn by his father in the year 1983 and 2008 respectively. The only logical inference is that the person who signed Exhibit U6 is the same person who signed O1. Section 101 of the Evidence Act, 2011 empowers the Court to make comparison of signatures and form its opinions. In exercise of this power, I have compared both signatures on Exhibits U6 and O1 and it is crystal clear that both signatures are similar. I have earlier stated that it is against the natural course of things for a man who had died before 2008 to depose to an affidavit in Exhibit O1. Again, a careful look at the said Exhibit U6 which is a statutory declaration of age made as far back as 1983, I must say it is doubtful that a document made as far back as 1983 will still be that neat together with the lamination. Now let us assume that Claimant’s father had not died in 2007 and was truly the person who deposed to Exhibit O1 in the year 2008 which fact is not conceded, why was there a need to make Exhibit O1 in the year 2008 if Exhibit U6 has already been made by him as far back as the year 1983? Was it that Exhibit U6 was lost or missing that necessitated Claimant’s father to make Exhibit O1 again in 2008. Claimant in this case has not told this Court why Exhibit O1 had to be made again if Exhibit U6 was already in existence. Why was it not stated in Exhibit O1 that Exhibit U6 was in existence and what fact necessitated the making of a new one that is Exhibit O1? In essence if Claimant’s father as alleged had made an affidavit correcting Claimant’s date of birth as far back as 1983, why was there need to make another one in the year 2008? Again, if Exhibit U6 has been in existence since 1983 stating Claimant’s date of birth as 9th June 1964, why then did Claimant not reflect this change in his academic record at the University of Ibadan? Although Claimant as stated supra had alleged that he submitted Exhibit U6 to the University, Exhibit O16 is instructive wherein the School stated that there is no record of the submission of the second affidavit stating 9th June, 1964 as Claimant’s date of birth in the University. In fact, the fourth paragraph of the letter states that the Claimant himself had applied for his academic transcript dated 21st September, 1998 upon which the same date of birth of 9th June, 1962 was indicated. Now the question that agitates my mind is if Exhibit U6 was genuine and was actually in existence at that point and Claimant had submitted it to the University but the University failed to make the change why did he not complain in 1998 or take steps when his transcript was issued to him and same still read 9th June, 1962 instead of the purported date of birth of 9th June, 1964? Again, why is Exhibit U6 coming up for the first time when Claimant appeared before the APDC? Claimant’s excuse to the APDC for not submitting Exhibit U6 at the point of employment in the 1st defendant as contained in the record of proceeding of the APDC in Exhibit U13 wherein Claimant stated that the document was in his village at the time is not tenable? How far can Claimant’s village be that he would not go and pick his purported statutory declaration of age when he got a new employment? How convenient was it for ‘Claimant’s father’ who was staying at Sabongidda Ora, now Edo State as captured in Exhibit O1 to now travel to the High Court of the Federal Capital Territory in Abuja to make a new declaration of age in the year 2008 when Exhibit U6 which he purportedly made earlier in the year 1983 was within the shores of Nigeria and one which he could have easily picked from Sabongidda Ora and bring same to Abuja for his son at the Medical and Dental Council in Abuja? Differently put, why couldn’t his father depose to the affidavit at the same Sabongidda Ora, or was there no Court there in 2008? All these questions remained unanswered by the claimant, thus raising doubts in the mind of the Court. It does not accord with common sense that a man would leave the affidavit he made in 1983 in the village and then travel to Abuja to make a new one in the year 2008 instead of just bringing that old one to his son here in Abuja. These many unanswered questions and doubts as to the existence of both Exhibit U6 and O1 are the reasons why this Court does not find both Exhibits credible and reliable.
43. Claimant in this case has maintained that the acts of the defendant was tainted with malice and bad faith and he gave particulars of the alleged bad faith and malice. It is worthy of note that Claimant vide Exhibit U10 had earlier sought to correct his date of birth with his PFA from 9th June 1964 to 9th June 1962 If Claimant was actually seeking to correct his date of birth with his PFA from 9th June 1964 to 9th June 1962 as at 2018 which is about the same time Claimant’s initial passport reads 9th June 1962 as his date of birth, then it means that Claimant’s date of birth is actually 9th June 1962. If not so Claimant would not be seeking to correct his date of birth with his PFA to read 9th June 1962 which is in consonance with what was captured on his initial passport issued since 2017 and the first affidavit which his elder brother has made. Claimant in this case has equally alleged that the Registrar of the 1st defendant of a witch-hunt because of the belief of the Registrar that he was sympathetic to a petition written to the Independent Corrupt Practices against him. Need I say that Claimant has not in any way led any credible evidence in support of this his assertion. This Court cannot therefore believe this assertion as its bereft of evidence.
44. Now as regard the third allegation of possession of two international passport bearing two different dates of birth. Claimant in this case has maintained that he had two international passports and that the first one erroneously captured his date of birth as 9th June 1962 which was why he had to apply for a new one which was subsequently issued with his correct date of birth as 9th June, 1964. I do not lose sight of the submission of learned counsel on behalf of Claimant in paragraph 4.9 of his final written address as to the admissibility of the data page of the passport tendered because it was not certified. Let me first state that the only data page of international passport tendered in this case is the one tendered by Claimant himself which carries his alleged correct date of birth of 9th June, 1964 and which is not certified. It was admitted and marked as Exhibit U5. The defendants never at any point tendered any international passport as Exhibit in this case so it could not have been said that learned Claimant counsel was referring to the one tendered by the defendant. Thus, there is no doubt that the passport referred to by learned counsel is Exhibit U5. The said passport which was not certified that is Exhibit U5 was tendered by Claimant himself in this case in support of his assertion that the second passport carries his correct date of birth 9th June 1964. It is the same Claimant through his Counsel that is equally asking this Court to expunge same because it was not certified. The law is well settled that a party who has relied on a document or taken advantage of same cannot turn around to impugn on its validity. See the following cases; UBA Plc v. Salman LPELR-45698(CA)1@35-39, Paras A-A and; A -G Rivers State v. AG Akwa Ibom State  8 NWLR (Pt. 1248)86 - 187 Paras. E-A. I hold that the Clamant who tendered Exhibit U5 in proof of his case ought not to question the validity or legality of the admissibility of the said document. Be that as it may, let me state that by the provisions of Section 12 of the National Industrial Court Act,2006 (hereafter referred to as NICA) this Court can apply the Evidence Act but in appropriate circumstances depart from its provisions in the interest of justice and which provision was affirmed by the appellate Court in the recent decision of the Court of Appeal, Ilorin Division in Mr Victor Adegboye v. United Bank for Africa unreported Appeal No CA/IL/20/2021 which judgment was delivered on the 14th day of April, 2022. Claimant in this case did not deny the existence of any of the two passports. In fact, right from his appearance before the APDC he maintained that the first passport which has 9th June 1962 as his date of birth was an error which necessitated the new one which captures it as 9th June 1964. The said new passport which the Claimant wants me to expunge is relevant to this case and Claimant has not denied its existence. In fact, Claimant admitted its existence and tendered same. This Court is empowered to depart from the provisions of the Evidence Act in the quest for substantial justice and Claimant in this case has not denied the existence of the said passport which he himself tendered in support of his case and which is relevant to the facts in this case. I therefore find this instance as one which is worthy of the application of Section 12 (2)(b) of NICA by departing from the provisions of the Evidence Act 2011. I accordingly discountenance with the objection of learned Claimant counsel. Exhibit U5 thus remains part of the record of this Court.
45. Claimant in this case from the facts seem to have admitted that truly he held two international passports. However, his contention is that the first passport was with manifest errors as it erroneously stated his date of birth as 9th June 1962 as against 9th June 1964 which to him is the correct one. These facts were equally stated by him before the AP&DC. Claimant has maintained that the defendant who had stated that he altered his date of birth was the same person who wrote a letter dated June 7th 2019 herein as Exhibit U11 to the Comptroller General of Immigration and which letter was written in support of his application to correct his date of birth that was erroneously written as June 9th 1962 to June 9th 1964. A perusal of Exhibit U11 evinces that it was Claimant that requested the said letter be written so as to enable him change his bio data on the passport and the said letter was for his introduction. There is no doubt from the combined effect of the Claimant’s averments and Exhibit U11 that Claimant was the one that instigated the said letter to the Comptroller of Immigration to enable him change his bio data particularly his date of birth. The pertinent question at this stage is can one say that the first international passport was an error as alleged by Claimant? If I may ask at this stage, if the first Immigration passport of Claimant had 9th June 1962 as Claimant’s date of birth (which was the same date in his record with the University of Ibadan), who supplied such information to the Immigration if not Claimant? Apparently, Nigeria Immigration acts on information supplied to them by applicants. I believe it was Claimant who filled an application form at the Immigration stating that he was born on 9th June, 1962, the Immigration Office could not have made such error which reflected the year 1962 which at some point was Claimant’s official date of birth as seen in Exhibits O15 and O16. I do not believe that the Immigration will coincidentally make such mistake to state 9th June 1962 as Claimant’s date of birth. So, if the earlier passport states Claimant’s date of birth as 9th June 962 then it was Claimant that supplied such information to the Immigration. In fact, a perusal of Exhibit U4 as tendered by Claimant and to which the said passport carrying 9th June 1962 is annexed as appendix xviii will show that the said passport had been issued since 30th January 2017 to expire 29th January 2022. How come it was just in the year 2019, two years after its issuance that Claimant woke up from his slumber to apply to change the said date of birth to 9th June, 1964 through Exhibit U11? If Claimant as recently as the year 2017 was still giving his year of birth to the Immigration as 9th June, 1962 which is in consonance with the date in some of his official records, then it means the first international passport could not have been as a result of the error of the Nigerian Immigration. Claimant obviously knew what he was doing when he instigated Exhibit U11. I am of the opinion that Claimant by the instigation of Exhibit U11 which resulted in the issuance of a new passport with a new date of birth of 9th June, 1964 deliberately wanted to change his year of birth to enable him bring everything in consonance with his orchestrated plan of removing two years from his age as shown by the alterations and other overt acts. But alas! Claimant was clever by half because lies will not endure forever. It will one day crumble like a pack of cards. It is in the light of all stated supra that I find and hold that the termination of claimant’s employment by the 1st defendant based on the recommendation of the APDC is lawful and cannot be declared ultra vires and unconstitutional.
46. Assuming the determination of Claimant’s employment was even done in breach of his right to fair hearing by the 1st defendant, which is not conceded, can Claimant who has been shown to have unlawfully been in possession of his registration folder in breach of Rule 030418 of the PSR and also altered documents in it, succeed in this relief that the termination of employment is unlawful and unconstitutional? This Court is as much a Court of equity as it is a Court of law. As such, this Court will apply the rules and maxims of equity where necessary. Courts have often been enjoined to where necessary invoke the maxims of equity in doing substantial justice over and above technical justice. In the case of Boye Ind. Ltd v. Sowemimo, supra at page 216, Paras C-H, the Supreme Court per Eko JSC (Rtd) held thus; “To further boost his case the 2nd defendant/counterclaimant called the Police handwriting expert to confirm the 2nd defendant’s/respondent’s signatures on exhibits F,N, N1 &O. And indeed the handwriting expert found that plaintiff actually appended his signatures on exhibits F, N, N1 and O and that confirmed the unconscionable conduct of the 1st plaintiff after introducing the 2nd defendant to the Onikere family and negotiating with them and actively participating in the 2nd defendant’s purchase of the disputed land to turn around to spuriously found his dispute over same land. Evidence on record further shows that after helping the 2nd defendant purchase the land the same 1st plaintiff bidded for and was awarded the job of perimeter fencing and sand filling of the land to which exhibits Q and L relate in favour of the 2nd defendant. These acts constituted facts preponderating, corroboratively, to strengthen the 2nd defendant’s counterclaim. The appellant’s criticisms of the lower court’s rejection of the evidence of the handwriting expert which not only debunked the denial of the 1st plaintiff that he signed exhibits N, N1 &O but also proved the barefaced liar that the said 1st plaintiff actually was. Accepting the evidence of the handwriting expert would mean that the said 1st plaintiff is an unreliable character and an ambitiously greedy person abusing the hallowed process of the court of justice to unconscionably backstab a friend and benefactor. That alone should have agitated the two courts below to invoke the maxim of equity: He who comes to court to seek justice must come with clean hands and conscience.” It is clear from the dictum of the learned jurist above that a party who comes to Court must of course come with clean hands and conscience otherwise he would not be protected or entitled to justice. Also, the late learned Jurist Pats Acholonu JSC in the case of Kwajaffa v. Bank of The North 5SCNJ 418 equally held thus; “It is not justice meted to someone who does not deserve it when that person craving for it has his hand soiled, blemished and besmirched” It is thus clear that a party who has had his hands soiled cannot be seeking for justice. It must equally be noted that an employment being with statutory flavor does not give an employee the right to misbehave and expect that there would not be adequate sanctions. In the case of Avre v. NIPOST, supra at pages 425-426, Paras G-A the apex Court per Eko JSC (Rtd) held that the fact that an employee’s contract is clothed with statutory flavor does not empower him to misconduct himself. Thus, the mere fact that Claimant’s employment is clothed with statutory flavor does not vests in him the right to misconduct himself as he did with his registration folder and the alterations made on the disputed documents. Claimant has obviously gotten his hands soiled and cannot be protected by this Court even if he has been wronged by the 1st defendant. Claimant who had obviously sown the wind of impunity contrary to what is expected of a person of his standing and age must of course reap the whirlwind of termination of employment. In view of all these, I am unable to find that the termination of Claimant’s employment is unlawful and unconstitutional. The defendant’s decision terminating Claimant’s employment from the point of the three allegations which it obviously has the power to try as a misconduct cannot be faulted. Hence, relief B fails.
47. Claimant vide relief C seeks an order of reinstatement. It is well settled that reinstatement can only be ordered where termination of employment has been found unlawful and thus set aside. See the following cases; Comp. Gen. Customs v. Gusau 18 NWLR (Pt 1598)353@386-387, Paras H-B; Olufeagba v. Abdul Raheem, supra. I have earlier in this case that the termination of Claimant’s employment was not unconstitutional, unlawful, ultra vires or void. The effect is that Claimant is thus not entitled to the consequential relief of reinstatement. Accordingly, relief C also fails.
48. I will take reliefs D and F together. Claimant vide relief D seeks an order of this Court compelling Defendant to pay the Claimant all his outstanding salaries and allowances calculated from the period commencing on August 1, 2020 until the date of his actual reinstatement. In relief F Claimant seeks an order of this Court compelling Defendant to pay Claimant the sum of N1,144, 201.85( N681,459.68 + N462,742.17), One Million, One Hundred and Forty Thousand, Two Hundred and One Naira, Eighty-Five Kobo), being the sum of money not paid to the Claimant during the period of his unlawful interdiction. Claimant vide paragraphs 44 and 45 of his amended statement of material facts averred that he was interdicted and placed on half pay with effect from August 20, 2020 which half salary was supposed to be N340,729.84 but he was never paid any salary in the month of August. However, in the month of September, 2020, he was paid N218,000 instead of the sum of N340,729.84 thereby leaving a short fall of N122,012.33. The defendant vide paragraphs 42 and 43 of the amended statement of defence averred in response that Claimant was interdicted with effect from 20th August , 2020 and therefore earned payment for only 20 days in August, 2020 and that payment of salaries is not within the powers and control of the 1st defendant but that of the Accountant General vide the Integrated Personnel Payroll Information System (IPPIS) and which office was written as to the said shortfall after Claimant brought same to its attention. The letter written to the office of the Accountant General by the 1st defendant is herein as Exhibit O13. The 1st defendant did not challenge or dispute the sum claimed by Claimant as his monthly salary and the sum claimed as his half salary. It equally did not dispute or challenge Claimant’s averment that he was not paid in August 2020. It then means that those facts are not in dispute. However, the bone of contention is whether Claimant was entitled to half salary in August 2020 which was the effective date of the interdiction and whether the 1st defendant bears liability as regard payment of Claimant’s salary. By the provision of Rule 030404 of the PSR which as stated supra shall guide the 1st defendant as a parastatal, an officer under investigation may be interdicted on not more than half pay pending determination of his case and shall also cease from reporting to duty. Claimant in this case was under investigation for some allegations and as such can be indicted. Thus, it cannot be said that Claimant’s interdiction was unlawful. Claimant in this case was only interdicted on the 20th day of August, 2020. It is my candid view that Claimant in the month of August is entitled to his full salary while he would be paid his half salary in line with his interdiction the following month of September. I say so in view of the fact that Claimant was only interdicted with effect from 20th August, 2020 which means that from that day he had to stop coming to work. So, it cannot be said that Claimant only worked for 20 days, Claimant was asked to stop work on the 20th by virtue of his interdiction. Had Claimant not been interdicted, he would have worked for the remaining days in August, 2020. The stoppage of work by Claimant was due to the interdiction and he worked up until the 20th day of August, 2020. Thus, he ought to be paid his full salary because had he not been interdicted from the 20th day of August, 2020 he would have completed that monthly cycle. His half pay by virtue of the interdiction will only count for the month of September. Thus, I find that while Claimant is entitled to his full salary in August, 2020, he is entitled to half salary for September, 2020 and the short fall of N122,012.33 outstanding from September half pay should be paid to him. Although I find from the evidence on record particularly Exhibits tendered by the defendant that it had written to the Office of the Accountant General who pays salary vide the IPPIS platform. However, the point must be made that while it is a notorious fact that it is the office of the Accountant General that pays salaries, such salaries are only paid from the schedule of voucher that each institution prepares. In fact, a perusal of Exhibit O13 which is the letter written to the Office of the Accountant General shows that the 1st defendant had even in that letter made a calculation of what Claimant should be paid. It is clear from Exhibit O13 that it is the 1st defendant that calculates what its employee is entitled to while the Office of the Accountant General through the IPPIS merely carries out the mandate of the 1st defendant. Thus, the 1st defendant cannot totally absolve itself of responsibility as regard the payment of Claimant’s salaries. This is because the salaries are paid based on the vouchers prepared and forwarded to the Office of the Accountant General. As such, the 1st defendant has the responsibility in this case to do the needful to ensure Claimant’s full salary is paid for August 2020 while the shortfall of N122,012.33 is paid for September.
49. I bear in mind that Claimant’s relief D and F also includes the period of termination till reinstatement. I have held that the termination of Claimant’s employment was not unlawful and his relief to reinstatement also fails. It is only logical that Claimant is not entitled to salaries beyond the date of termination. Accordingly, relief D and F succeed only to the extent that Claimant is entitled to be paid the sum of N681,459.68 which represents his full salary while he is entitled to be the shortfall of N122,012.33 for the month of September. I so find and hold.
50. Claimant vide relief E seeks an order of this Court that he is entitled to the possession of the official premises located at Block 11, F-Close, 1st Avenue, Gwarinpa Estate, Gwarinpa Abuja, which he occupies by virtue of his employment until the date of his retirement. Claimant vide paragraphs 67 and 68 averred that he occupies a residential premises in Gwarimpa belonging to the 1st defendant by virtue of his employment and that if the defendant is not restrained, they will unlawfully eject him. The Courts have held that an employee who occupies an apartment by virtue of his employment occupies no estate therein and is merely a licensee who has no right to continue to remain in occupation of the premises after the termination of the employment. See the following cases; Nwanna v. FCDA 13 NWLR (Pt 889)128@144-145, Paras H-B; Sheka v. Bashari LPELR-21403 (CA) and ; Chukwuma v. Shell Pet. Dev. Co Nig Ltd 4NWLR (Pt 289)512. It must be noted that a licensee is not a statutory tenant who can be protected by the law. See; Keyamo v. Folorunso 9 NWLR (Pt 1252)209 and Kari v. Ganaram 2 NWLR (Pt 488)380@397, Para E. As such, a licensee can be evicted at any time without the issuance of the statutory notices. I have held that the termination of Claimant’s employment is not unlawful, it then means that Claimant’s continued possession and retention of his official residence after the termination of the employment cannot be justified. Thus, there is no ground that justifies the grant of relief E. Relief E thus fails.
51. Claimant vide relief G is asking for the sum of N100,000,000.00 (One hundred Million Naira) only being General and exemplary damages for emotional trauma, pains, and stress the Claimant has passed through arising from his termination. It is trite that general damages is awardable where a wrong is established. Thus, where there is no wrong or proof of wrong there can be no award of general damages or compensation. See the George Akande v. Enterprise Bank LPELR-43819 (CA)1@20, Para C and UBN PLC v. Ajabule & Anor LPELR-8239(SC)1@27, Para B. Claimant in this case has not succeeded in proving that the termination of his employment was without just cause or unlawful. This Court cannot exercise its discretion to award compensatory damages in his favour. There is equally no medical report to evince that he had trauma or pain or stress as a result of termination of his employment. Hence, relief G fails.
52. Claimant vide relief H is asking for cost. The law is on a firma terra that a successful party is entitled to cost which he should not be denied except for good reasons. See the case of Saeby v. Olaogun  10-12 SC 45@59. It is usually at the discretion of the Court once empowered by its rules. Although the Rules of this Court, particularly Order 55 empowers the Court to grant costs of action at its own discretion, however, Claimant in this case has not succeeded in the most part of his claim. Claimant in this case even though his Claim succeeds in only small part has failed in proving the main crux of his case which is denial of fair hearing and unlawful termination. This Court is not satisfied that Claimant is entitled to enjoy the benefit of the Court’s discretion.
53. Now to issue two framed, it is the defendant’s counterclaim that the misconducts committed by the Claimant is serious misconduct and is punishable by an order of dismissal not termination and that the order of termination be replaced with that of dismissal. The law has become ensconced that a counter-claim though filed in the same suit and probably from the same transaction as that of the main suit is a separate and independent action from the main claim and as such must be proved by the counterclaimant. See these cases; Kolade & Ors v. Ogundokun LPELR-48001(SC)1@,24-25, Para F; Oroha & Ors v. Adeniyi & Ors LPELR-41985(SC)1@11-13, Para E; Idurobo v. Ehiorobo LPELR-43594(CA)1@35-37, Para E and; Ogli Oko Memorial Farms Ltd & Anor v. NACB Ltd & Anor LPELR-2306(SC)1@16, Para B. It is a weapon of defence which enables a defendant in the main claim to maintain a claim against a claimant. Thus, same is governed by the same rule of pleadings as the main action. Just as it is with the main action, it is the duty of he who asserts to prove. Thus, the burden of proof rests squarely on the counterclaimant to prove its case on the balance of probabilities. See the following cases; Tropical Culture Ltd & Anor v. Akinola LPELR-52214(CA)1@82-83, Para F; Anwadike & Anor v. Anwadike &Ors LPELR-46970(CA)1@50-52,Para F; Ulam & Ors v. Usman LPELR-48917(CA)1@15-16, Para F and; Ogiren v. Olufunmilayo & Ors LPELR-24295(CA)1@24-25, Para A. Thus, it is the duty of the defendant/counterclaimant to prove its assertions in the counterclaim to the satisfaction of this Court before it can be entitled to judgment. It is the contention of the 1st defendant/counterclaimant vide paragraph 7 of its counterclaim that alteration of documents in public records under the PSR is a serious infraction and gross misconduct when established against a public servant attracts outright dismissal from service. It is equally its contention that the PSR provides only dismissal once the allegation of serious misconduct is established against a Public Officer.
54. Let me first point out that I am mindful of the fact that Claimant/defendant to counterclaim did not file any defence to the counterclaim of the 1st defendant/counterclaimant. It is trite that that failure to file a defence to a counterclaim is an admission of the facts averred in the counterclaim and as such stands undisputed. See the following cases; Olaleye v. Wema Bank Ltd 3 NWLR (Pt 1233)93; Chime v. Chime6 NWLR (Pt 404)734 and; Anaeze v. Anyaso 5 NWLR (Pt 291)1@26, Paras F-G. However, I do not lose sight of the fact that the counterclaim is declaratory in nature, which is an exception to the rule of admission. Thus, it would not be granted on mere admission as stated earlier in this judgment. See Oyetola v. Adeleke & Ors  LPELR-47545 (CA). The 1st defendant/counterclaimant still has to prove its entitlement to the reliefs sought in the counterclaim as they cannot be granted on mere admissions although what will be required of it is minimal proof since the Claimant/defendant to counterclaim did not file a defence.
55. The 1st defendant/counterclaimant vide relief ‘a’ in the counterclaim wants the Court to declare that the AP&DC conducted its proceedings in accordance with due process of law and the Claimant’s right to fair hearing was not breached. The minutes of the meeting of the AP&DC as tendered by 1st defendant is here as Exhibit O9. As stated supra in this judgment, the AP&DC is a mere investigative and administrative panel which is not bound to follow the strict rules of fair hearing as obtained in Court. I have also stated herein earlier that Claimant’s right to fair hearing has not been breached in any way by the AP&DC. The proceedings were substantially regular with the due process of law as Claimant was given adequate opportunity to be heard in defence of the allegation against him. Thus, I find that relief ‘a’ in the counterclaim succeeds.
56. Counterclaimant vide relied ‘b’ seeks a declaration that the counterclaimant has properly and duly proved the case of alteration of his date of birth against claimant. From the facts and circumstances of this case and the preponderance of evidence as evaluated earlier in this judgment, the defendant/counterclaimant has successfully proven the allegation of alteration of Claimant’s date of birth particularly with Exhibits O2, O3, O4, O6 and O7 wherein the alteration were as clear as daylight and particularly because of the tacit admission of Claimant before the AP&DC in Exhibit O9 (the minutes of the meeting of AP&DC) that he could possibly be the one who made the alterations which to him was ‘termed ‘hard prints’. There is no gainsaying that the allegation of alteration of date of birth has been proven against Claimant. Thus relief ‘b’ in the counterclaim also succeeds.
57. By relief ‘c’ in the counterclaim, the 1st defendant seeks a declaration that Claimant’s actual date of birth is 9th June, 1962. The defendant had attacked the credibility of Exhibit O1 which was a purported declaration of age made by Claimant’s father in 2008 because the man has been reported dead since 2007 stating Claimant’s date of birth as 9th June, 1964. I have stated earlier in the consideration of the main suit that it is against the natural course of events for a man who had died in 2007 to make a declaration of age in 2008. Thus Exhibit O1 is not credible. DW5 was clear with his testimony under cross examination that Claimant’s real date of birth is 9th June 1962 which corresponds with the content of Exhibits O15 and O16 and the other letter written by the University of Ibadan. Claimant in this case had not filed any defence to the counterclaim or controvert any of the facts contained in the 1st defendant/counterclaimant’s counterclaim which is a separate and independent action from the main suit. Thus, what is required of the counter-claimant is minimal proof as stated supra. There is therefore no doubt that Claimant’s date of birth is 9th June, 1962 as averred by the 1st defendant counterclaimant since Exhibit O1 has been declared unreliable. Accordingly, relief ‘c’ succeeds.
58. Let me address relief ‘d’ in the counterclaim. The allegation of alteration or falsification of records leveled against claimant is a serious misconduct under the provision of Rule 030402 of the PSR. It is equally worthy of note that Rule 030407 provides that the ultimate penalty for serious misconduct is dismissal and that an officer that is dismissed forfeits all claims to retiring benefits, leave or transport grant etc subject to the provisions of the Pension Reform Act. However, the above provisions of the PSR must not be read in isolation of other provisions especially other ones dealing with discipline. This is because the law is on a firma terra that statutes and documents must be interpreted as a whole and not in isolation and must be interpreted in that light in order to establish harmony with other parts. See Maihaja v. Gaidam 4 NWLR (Pt 1601)454@492, Para B and FCDA v. Nzelu 5 NWLR (Pt 1401)565@584, Paras F-G. The PSR is not just a document but a subsidiary regulation/legislation made pursuant to the Constitution. In effect, its provisions must be construed as a whole. There is nothing in the PSR that suggests that dismissal is the only punishment for serious misconduct. Rule 030401 of PSR defines serious misconduct thus; Serious misconduct is a specific act of very serious wrongdoing and improper behavior which is inimical to the image of the service and which can be investigated and if proven may lead to dismissal. It is trite that when the operative word used is ‘may’, the meaning may not always mean discretion, it may mean compulsion depending on the context. See Okonkwo v. U.B.A Plc 16 NWLR (Pt 1274)614@628, Paras F-G and Cont. Res (Nig) Ltd v. U.B.A Plc 16 NWLR (Pt 1274)592@608, Paras B-C. In order to construe the import of the word ‘may’ as it relates to punishment of dismissal for serious misconduct in the PSR, it is expedient to consider other provisions of the PSR. Rule 030403 provides that the procedure for Serious misconduct shall be in accordance with Rule 030302 to 030306. Rule 030306(x),(xi) and (xii) provides hereunder thus;
(x) If upon considering the report of the Board together with the evidence and all material document relating to the case, the Commission is of the opinion that the officer should be dismissed, such action shall immediately be taken;
(xi) If the Commission does not approve the officer’s dismissal and does not consider that any penalty should be imposed, the officer shall be reinstated forthwith and be entitled to the full amount of salary denied him/her, if she was indicted or suspended;
(xii) If upon considering the report of the board the commission is of the opinion that officer does not deserve to be dismissed but that the proceeding disclosed grounds for requiring him/her to retire, the Commission shall, without further proceeding direct accordingly;
59. The above provision of the PSR clearly shows that dismissal may not be imposed for serious misconduct even where there are grounds to believe that the allegation has been proven. The Commission has discretion whether to impose the ultimate punishment of dismissal or not. In fact, construing the provisions of the Rule 030306(i)-(xiii) of the PSR that deals with the steps to take in the discipline of an officer and which shall equally guide the parastatals just like the 1st defendant, the Federal Civil Service Commission which in this case by virtue of the provision of Rule 160502 of the PSR shall be the Board/ Council of the 1st defendant has the discretion whether to impose dismissal or not. It is thus clear that the ultimate punishment of dismissal prescribed for serious misconduct depends on the discretionary power of the Federal Civil Service Commission/ the Board or Council of the parastatal as the case may be. By the combined effect of Rules 030401 and 030306, the word ‘may’ used obviously connotes discretion and not compulsion. It is clear from the foregoing that serious misconduct under the PSR even where proven does not necessarily have to lead to dismissal. In my view, the provision of Rule 030407 only shows that dismissal is the ultimatum supplicum that is the final or extreme punishment for serious misconduct.
60. The 1st defendant/counterclaimant in this case after considering the report of the AP&DC decided not to impose the punishment of dismissal which is the ultimate punishment but to follow the recommendation of the AP&DC by saying that his service is no longer required contrary to the assertion of the counterclaimant that Claimant was compulsorily retired. It is within the power of the 1st defendant to impose any other lesser punishment other than dismissal. Therefore, I find that the 1st defendant/counterclaimant acted within the scope of its powers when it imposed a lesser punishment than dismissal. Relief ‘d’ in the counter claim fails.
61. The defendant/counterclaimant vide relief ‘e’ in the counterclaim seeks an order of this Court substituting dismissal in place of compulsory retirement of the Defendant to the counterclaim in accordance with the provisions of the PSR. I have held supra that dismissal is not a mandatory punishment and that the PSR allows for discretion in punishing for dismissal. Besides the doctrine of estoppel by conduct will apply in this case. By virtue of the doctrine of estoppel by conduct a party is not allowed to assert the contrary of the state of facts which he has earlier asserted by words or conduct. See Ajibode v. Gbadamosi 7 NWLR (Pt 1776)475 @509, Paras C-D and Obineche v. Akusobi 12 NWLR (Pt 1208)383. By this doctrine as entrenched in Section 169 of the Evidence Act, 2011, the 1st defendant/counterclaimant who has acted within the scope of its powers to impose a lesser punishment by merely stating that Claimant’s services were no longer required, cannot now be asking this Court to substitute dismissal in place of the verdict of termination given to Claimant. It is not within the jurisdiction of this Court to impose a verdict of dismissal when the defendant clearly by its conduct knew what it was doing and imposed a lesser punishment which is within its power to do. Thus, relief ‘e’ fails.
62. In sum, I find that Claimant’s action succeeds only to the extent that he is entitled to be paid the sum of N681,459.68 which represents his full salary for August, 2020 while he is entitled to the shortfall of N122,012.33 for the month of September, 2020 while Counterclaimant’s action equally succeeds in part to the extent that reliefs a, b and c succeed while others fail.
Judgment is accordingly entered.
Hon Justice O. Oyebiola