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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE IBADAN JUDICIAL DIVISION

HOLDEN AT IBADAN

 BEFORE HIS LORDSHIP HON. JUSTICE J.D. PETERS

 

DATE: 20TH MAY 2026  

SUIT NO: NICN/IB/14/2024

 

BETWEEN:

Professor Victor Oyenkeraibe Oboro   -                -                 -                       Claimant 

 

AND

1          Ladoke Akintola University of Technology

2.         Governing Council of Ladoke Akintola 

University of Technology

3.         Ladoke Akintola University of Technology 

Teaching Hospital, Ogbomoso

4.         Governor of Oyo State

5.         The Attorney General & Commissioner of Justice, 

Oyo State                                                                     -        -         Defendants

REPRESENTATION

Basit O. Busari with Ife Olamiju for the Claimant 

Lasun Sanusi, SAN with R.O. Akintoye for the 1st & 2nd Defendants

Abiola Ayegbusi for the 3rd Defendants

 

 

JUDGMENT

1.         Introduction & Claims

1.         The Claimant commenced this Suit by his General Form of Complaint dated and filed 1/3/2024 along with the other requisite frontloaded processes and sought the following reliefs against the Defendants -

  1. A Declaration that the purported termination of employment of the Claimant vide a letter tagged “letter of Dismissal” with ref number REG/ESTAB/SSA/PF.943 dated September 1st 2022 and issued by the Defendant is wrongful, illegal, null and void.
  2. A Declaration that the purported termination of the employment of the Claimant vide a letter tagged RE: QUERY” with ref number LTH/OGB/DA/QRY/51/011 dated 20th January 2017 and issued by the 3rd Defendant is wrongful, illegal, null and void and of no effect.
  3. A Declaration that the claimant is entitled to his benefit and severance package i.e leave allowances from the 3rd Defendant.
  4. A Declaration that the Claimant is entitled to voluntary retirement from service of the 1st Defendant.
  5. A Declaration that the decision of the 1st and 2nd Defendant not to recon or recognize the Claimant’s voluntary retirement vide a latter of voluntary retirement dated 18th December 2019 is wrongful, illegal, null and void and of no effect.
  6. An Order of this Honourable Court directing the 1st and 2nd Defendant to accept the voluntary retirement of the Claimant vide a letter of voluntary retirement dated 18th December 2019 written by the Claimant.
  7. An Order of this Honourable court directing the 1st and 2nd Defendants to pay to the Claimant the sum of =N=14,293,688.30k (Fourteen Million, Two Hundred and Ninety-Three Thousand, Six Hundred and Eighty Naira, Thirty Kobo only) being remuneration and unpaid salary as follows-
  8. Arrears of salaries by the University for the Months of August, September, November and December 2016 to the tune of =N=2,305,433.60k (5 months in 2016).
  9. Arrears of salaries by the University for the months of January, February, March, April, May, June, July, August and October 2019 to the tune of =N=2,766,520.32k (i.e 6 months in 2017).
  10. Arrears of salaries by the University for the months of January, February, March, April, May, June, July, August, October, November and December to the tune of =N=5,071,953.92k in 2018. (i.e 11 months in 2018.
  11. Arrears of salaries by the University for the months of January, February, March, April, May, June, July, August and October 2019 to the tune of =N=4,149,780.48k in 2019. (i.e. 9 months in 2019).
  12. An Order of this Honourable Court directing the 3rd pay the Claimant the sum of =N=5,854,776.15k (Five Million Eight Hundred and Fifty-Four Thousand, Seventy-Six Naira, Fifteen Kobo only) being unpaid hospital allowances before the termination of his appointment as follows -

            i.          Arrears of salaries by the 3rd Defendant for the months of November and December 2015 to the tune of =N=780,636.82k (i.e 2 months in 2015).

                        ii.         Arrears of salaries by the 3rd Defendant for the months of January, February, March, April, May, June, July, August, September, October, November and December 2016 to the tune of =N=4,683,820.92k (i.e 12 months in 2016).

                        iii.        Arrears of salaries by the 3rd Defendant for the months of January 2017 to the tune of =N=390,318.41k in 2017 (i.e 1 month in 2017)

  1. An Order of this Honourable Court directing the 1st Defendant to calculate and pay the Claimant his pension and gratuity on his last status as a Professor of the 1st Defendant.
  2. An Order of this Honourable Court directing the 3rd Defendant to calculate and pay the Claimant his leave allowance on his last status as a Clinical Consultant of then 3rd Defendant.
  3. An Order awarding ten percent (10%) interest per annum in favour of the Claimant on the judgment sum until the judgment sum is liquidated.
  4. The cost of this action in the sum of =N=5,000,000 (Five Million Naira).

2.         Defence & Counterclaims

2.         On 17/4/2024, 1st & 2nd Defendants entered an appearance to this suit. They also filed a joint statement of defence on the same day together with witness deposition, list of witness as well as list and copies of documents to be relied upon at trial. 

 

3.         The 3rd Defendant in response to the Claimant’s suit filed its Statement of Defence, Counterclaim and other accompanying processes on 3/10/2024 and sought the following reliefs –

  1. An Order of this Honourable Court declaring that the Claimant as an employee of the 3rd Defendant breached his duty to the later.
  2. An Order dismissing the Claimant’s claims in their entirety against the 3rd Defendant hereto with substantial cost.
  3. An Order commanding or compelling the Claimant to refund a sum of =N=31,785,790.96 being alary (emolument) collected by the Claimant from the 3rd Defendant between August 2010 to December 2016 for work not done by the Claimant to the 3rd Defendant.
  4. =N=20,000,000.00 compensation/damages for the Claimant’s breach of duty to the 3rd Defendant.
  5. Any other ancillary relief this Honourable Court may deem fit to grant the 3rd Defendant in the circumstances of this suit.

3.         Case of the Claimant

4.         The case of the Claimant, in brief, as revealed from the pleadings filed is that he was appointed by the 1st Defendant as Lecturer 1 in October 2001; that consequent upon the said appointment he was appointed a Clinical Consultant by the 3rd Defendant on 19/12/2001; that he was promoted from time to time and eventually rose to the position of a Professor at the 1st Defendant in 2010 and a Clinical Consultant with the 3rd Defendant; that he applied to the 1st Defendant for his Accumulated Leave in 2016; that the Departmental Review Panel met on 13/4/2016 to consider the application for the accumulated leave; that on 14/6/2016 the Departmental Review Panel communicated the approval of the accumulated leave to the Faculty Review Panel; that on 14/4/2016 he received a Query from the 3rd Defendant that he had not been performing his clinical duties; that he replied to the Query and that while he was on his accumulated leave he received a letter of dismissal dated 20/1/2017 from the 3rd Defendant; that the 3rd Defendant terminated his employment without constituting any panel and that he was owed some arrears of hospital allowances from November 2015 to January 2017. 

 

5.         It is the case of the Claimant that he applied for and proceeded on sabbatical leave; that it customary in the 1st Defendant that sabbatical/accumulated or other long leave that originate from the College of Health Sciences are usually granted/approved in retrospect; that it is impractical for applicant to wait for approval because the purpose behind proceeding on the leave would be defeated when the approval is obtained; that he also applied for 2019/2020 Annual Leave via an internal memo dated 9/7/2019 anticipating that by the conclusion of the leave period, the approval would have been transmitted by the College to the University; that in December, 2019 he received a Query dated 10/12/2019 from the 1st Defendant on absence from duty without approval; that he answered the Query on 24/1/2020; that due to the circumstances and the unfriendly work environment he put in his Notice of Voluntary Retirement dated 18/12/19 and effective immediately especially since the approval letter for his leave had not been released by the University and he was owed a substantial portion of his remuneration in arrears; that he received a memorandum dated 22/1/2020 from the 1st Defendant stating that his Retirement Letter would not be treated because of the pending Query dated 10/12/2019; that 1st Defendant et up a Panel to investigate allegations of dereliction of duty levied against him; that he was invited to the Panel by a memo dated 5/2/2021 to which he replied by a letter dated 17/3/2021 that he could not attend due to Covid-19 and that without receiving a further invitation to the Panel his employment was terminated by the 1st Defendant via a letter dated 1/9/2022.

 

4.         Case of the 1st & 2nd Defendants

6.         The case of the 1st & 2nd Defendants as revealed from the statement on oath of  Abass Kolawole Kobiowu, is that the Claimant was employed by the 1st Defendant as Lecturer in 2001 and was promoted from time to time till the Claimant became a Professor in 2010; that Claimant was also appointed as Consultant in the Teaching Hospital which appointment was also determined; that shortly after the Claimant’s appointment and even after his confirmation, he engaged in dereliction of duty, absence without permission and abscondment from duty; that his salary was stopped for some time as a result of the Claimant’s engagement in dereliction of duty, absence without permission and abscondment from duty but was later restored after plea for pardon on humanitarian grounds; that there is a difference between Accumulated Leave and Sabbatical Leave; that whilst Accumulated Leave can be approved retrospectively, because it would have been earned but delayed or deferred for some exigencies, Sabbatical Leave can not be approved retrospectively and can not be utilized without approval; that the Claimant applied and was granted Sabbatical Leave between 2007 – 2008; that Claimant applied for Sabbatical Leave between 2018 and 2019 but it was not granted; that when Claimant wanted to resume from Sabbatical Leave he claimed to have enjoyed, he was however requested to produce prior approval for the purported 2018/2019 Sabbatical Leave; that between 2018 and 2019, the Claimant went on a Sabbatical leave that was not approved by the 1st Defendant and as a result, could not fill and submit the Resumption of Duty from Sabbatical Leave Form, as he was required to submit the approval for the sabbatical leave which he did not have and has since not resumed till he was dismissed; that as a result of the Claimant’s incessant absence from duty, the Head of the Department of Obstetrics and Gynaecology sought the 1st Defendant’s intervention which the 1st Defendant responded by setting up a Panel to investigate the allegation of dereliction of duty levied against the Claimant and that he has seen the report of the investigation, the Appointment and Promotion Committee decision on it and the Council Minutes of meeting and decision on Claimant’s appointment.

 

7.         It is the case of the 1st Defendant that it issued a Query to the Claimant on the 10th December, 2019 which the Claimant did not reply to but instead, issued a Letter of Voluntary Retirement dated 18th December, 2019; he has seen the copy of the Query, together with Registrar’s letter that voluntary retirement could not be processed without answering the query; that a Panel was then set up by the 1st Defendant to investigate the allegations against the Claimant but the Claimant did not in any way honour or appear before the Panel;  that according to the University Staff Regulations, a Professor can only issue a Notice of Voluntary Retirement, 6 months prior to the time he wishes to retire but in the instant case, the Claimant just issued the Notice of Voluntary Retirement to take immediate effect even during his abscondment or absence from duty and never returned to work; that the University Council dismissed the Claimant for abscondment of duty on the 1st September, 2022 after considering all the documents and reports at its disposal including the decision of Appointment and Promotion Committee on the Report of the Panel; that the monetary claims sought by Claimant are caught by Oyo State Limitation Law while some are clearly against public policy; that it is wrong for the Claimant to seek payment for services not rendered to the Defendants; that the dismissal of the Claimant by the University is not in any way wrongful but in line with the provision of the Senior Staff Regulations of the University.

5.   Case of the 3rd Defendant

8.         The case of the 3rd Defendant is that it employed the Claimant separately from the 1st Defendant; that the case of the Claimant is caught up with laches and acquiescence his purported complaint against the 3rd Defendant having been in 2017 a period of 7 years; that Claimant has not been faithful to his terms of employment and had at all material time to this suit been absent from duty yet collecting alary from the 3rd Defendant unrightfully; that while jettisoning his responsibilities to the 3rd Defendant the Claimant severally travelled abroad and was working there to the detriment of the 3rd Defendant; that the Claimant breached his employment contract as well as his Hypocritical Oath and Rules of Professional Ethics as a Medical Doctor; that the 3rd Defendant is separate and distinct from the 1st Defendant; that Claimant was originally employed as a Clinical Consultant under terms and conditions evidenced in LAUTECH Teaching Hospital Osogbo, Osun State letter dated 19/12/2001 which he accepted; that since his appointment Claimant has never shown any commitment to his duties with the 3rd Defendant which caused his Head of Department to report him to the Chief Medical Director by a memo dated 7/4/2016 and subsequent Query of 14/4/2016; that a Management disciplinary committee was constituted to which the Claimant was invited but Claimant was outside the country and did not honour the invitation; that Claimant’s continued absence from duty with resultant negative impacts on the patients of the 3rd Defendant necessitated a determination of his appointment with the 3rd Defendant vide a letter dated 20/1/2017 and that Claimant collected salary he never worked for from August 2010 to December 2016 at the rate of =N=412,802.48 per month totalling  =N=31,785,790.96 from the 3rd Defendant for which a refund is sought.

 

6.         Final Written Addresses

9.         The final written address of the Claimant was filed on 29/12/2025. In it learned Counsel set down a lone issue for determination thus –

 

            Whether the Claimant is entitled to the reliefs sought.

 

10.       In arguing this issue, learned Counsel submitted that the law is trite that a party’s claims will be granted if proved with evidence that he is entitled to such claim and the Court is satisfied of the claim of the party citing Oyede & Ors. v. Akinbo & Ors (2017) LPELR-42863(CA). Counsel submitted that the failure of Professor Adewale Adeyemi who was at the time the Claimant proceeded on his Accumulated Leave to inform the Hospital Management that the Claimant was on leave occasioned injustice for the Claimant hence issuance of a termination letter; that in its pleadings the 3rd Defendant did not deny the contention of the Claimant that Prof Adeyemi is aware that, he Claimant, was on leave; that in the face of documentary evidence before the Court showing the approval of the Accumulated Leave sought by the Claimant the 3rd Defendant seemed to have conceded that fact and that the effect of a party’s failure to specifically deny averments in a pleading is admission citing Mr. Mahmud Tukur & 3 Ors. v. Interglobal Procurement & Anor. (2014)17 NWLR (Pt. 1473) 375 at 604 & Khatoun Enterprises Ltd. v. United Nigeria Textiles, Anor. (2014)18 NWLR (Pt. 1438) 1 at 26 & Alh. Sani A. Danladi v. Barr. Nasiru A. Dangiri (2015)2 NWLR (Pt. 1442) 124 at 195. Counsel submitted that the 3rd Defendant’s statement of defence did not in actual fact controvert the averments contained in paragraphs 10 – 13 of the statement of claim; that the defence averments are evasive, non-specific and half hearted and they are deemed to have admitted the averments contained in paragraphs 11, 13, 14 & 26 of the statement of claim and the Claimant is relieved the burden to prove them citing Sections 20, 23, 27 & 123, Evidence Act, 2011; that there is no documentary evidence showing that while Claimant was on his approved leave he took up another paid employment outside the country and that the ipse dixit of the 3rd Defendant is not enough to sustain his claim citing Aregbesola v. Oyinlola (2011)9 NWLR (Pt. 1253) 458 at 566.

 

11.       Learned Counsel submitted that Claimant was not given any ample opportunity to defend himself neither was any panel constituted to determine the allegation made against him; that the 3rd Defendant merely received Claimant’s response to query issued to him and thereafter terminated his employment. According to learned Counsel, there is enough evidence to show that Sabbatical/Accumulated Leave are always granted in retrospect and not otherwise; that it is the custom of the 1st and 2nd Defendants to allow staff to proceed on leave even when the application is pending which is evidenced in the documents before the Court; that the only hurdle the Claimant needs to pass is that the application was properly made, the Department recommended/approved it and the University was aware of the application and that the Applicant acted in line with previous similar cases and that once an Applicant fulfills all these, proceeding on leave cannot lawfully be branded as misconduct or abscondment citing Letter dated the 14th day of January 2019 & A.G, Federation v. Abubakar (2007)10 NWLR (Pt. 1041)1. 

 

12.       Counsel submitted that the internal memo dated 3/6/19 which is the Resumption of Duty filed by the Claimant negated the argument of the 1st & 2nd Defendants that Claimant absconded from his employment and after the Claimant realised the unfriendly working condition of service including salary suspension without trial, he tendered his letter of resignation vide a letter dated 18/12/2019 to which the 1st and 2nd Defendants reacted by a letter dated 22/1/2020 and that the law is that an unwilling servant cannot be forced on a willing master citing Aminu Bashir Ibrahim v. Babangida Alasan Yakudima (2019)17 NWLR (Pt. 1701)293 at 315. Finally, learned Counsel submitted that Claimant proceeded on leave in accordance with institutional practice; that he did not abscond; that he was denied fair hearing and that his employment was unlawfully terminated. Learned Counsel urged the Court to enter Judgment for the Claimant and grant all the reliefs sought.

13.       The 1st & 2nd Defendants filed their final written address on 26/1/2026. Counsel set down a lone issue for determination as follows –

 

Whether the Claimant established his case in order to entitle him to the reliefs sought.

 

14.       Learned Counsel submitted that the position of the adversarial system of adjudication is that he who asserts must prove citing Section 131, Evidence Act, Okonkwo v. Okagbue (1994)9 NWLR (Pt. 368) 301 & Josiah Eboh v. Rose Ogbu (1994)5 NWLR (Pt. 347) 703 at 718. Counsel submitted that although Claimant evasively opined in his written address that the cause of action arose in 2022 but that nothing can be farther from the truth; that by the letter dated 20/1/2017 front loaded by the Claimant and referred to in paragraph 15 of the statement of facts the Claimant’s appointment was terminated by the 3rd Defendant on 20/1/2017; that this action was filed on 1/3/2024 which is over 7 years after the termination of the Claimant’s appointment and that there can be no relief or claim against the termination when the action was filed 7 years after the termination of the Claimant’s appointment. Learned Counsel prayed the Court to so hold and dismiss the case of the Claimant.

15.       On the main issue, learned Counsel submitted that the main plank of Claimant’s case is that his dismissal from service of the 1st Defendant is not justified and hence sought reversal and damages; the allegations against the Claimant were centred on his failure to resume duty after his Accumulated Leave granted in 2016; that Claimant never resumed from that Accumulated Leave of 2016 but instead of justifying his absence from duty since his Accumulated Leave Claimant was simply attacking Professor Adewale Adeyemi for not justifying his absence yet Professor Adewale Adeyemi was not made a party in this suit and hence had no opportunity to debunk the Claimant’s allegation against him and that this Court cannot make any order against Prof. Adewale Adeyemi citing Kokorowo v. Lagos State Government (2001)11 NWLR (Pt. 723) 237 & Huebner v. A.I.E & P & CO Ltd (2017)14 NWLR (Pt. 1586) 327 at 422.

 

16.       Learned Counsel submitted that the reliefs sought by the Claimant are mainly declaratory; that Claimant must justify his reliefs and question of not denying any averment or argument thereto is otiose because declaratory reliefs cannot be granted even on admission of opponent citing Balolaba v. Osogbo Local Government (2003)10 NWLR (Pt. 829) 465 at 484; that the major allegation of absconding and dereliction of duty has not been disproved by the Claimant; that there is no disagreement on the issue of Accumulated Leave; that the main issue is that Claimant failed to return to work after his Accumulated Leave claiming to have proceeded on Sabbatical Leave that was not approved; that Sabbatical Leave cannot be enjoyed without approval; that Claimant sought and obtained approval for his sabbatical leave in 2007-2008 and he resumed in accordance with the extant regulations and that there is no evidence that Sabbatical Leave could be enjoyed without approval.

 

17.       On abscondment, learned Counsel submitted that since Claimant proceeded on Accumulated Leave in 2016 he never returned to work; that he then applied for sabbatical leave when claiming to be on Accumulated Leave for which he never secured an approval citing paragraphs 7 – 10, 13 of the statement of defence; that not returning from Accumulated Leave is outlawed under the provisions of paragraph 6.0.15 of The Regulations Governing the Conditions of Service of Academic, Senior Administrative and Technical Employees; that the Claimant rather than resume when confronted with failure to obtain approval for Sabbatical Leave only wrote from, dropping such letters through unknown persons and failing to appear in person at his Department; that he only applied for another leave and that such conduct is a violation of the regulations and attracts summary dismissal citing paragraph 6.0.17(d)(iii) of the Regulations Governing the Conditions of Service of Academic, Senior Administrative and Technical Employees; that the imaginary practice of submitting application for Sabbatical Leave and proceeding thereon without obtaining the requisite permission/approval is debunked by 9-12 of annexures of the statement of defence; that it is trite law that once a method is prescribed for doing anything by law, any other method is wrong citing Maku v. Sule (2019)9-11 MJSC 53; that the catalogue of Claimant’s dereliction and abandonment of duties is contained in Annexture 18 to the statement of defence and tagged “Notification and Intervention on Prof . V. O. Oboro”

 

18.       Counsel submitted that the voluntary retirement by the Claimant is invalid; that unlike resignation, retirement attracts terminal benefits that need to be verified as earned and such retirement must be in line with statutory provisions and regulations; that retirement should not and cannot be an escape route to evade sanction for gross misconduct in service; that aside the obligation of the Claimant to respond to the query seeking explanation for his gross misconduct, any request for retirement must be in accordance with institutional regulations and that by paragraph 6.0.17(i) of Regulations Governing the Conditions of Service of Academic, Senior Administrative and Senior Technical Employees, the notice of retirement must not be less than six months to terminate on 30th of September and that any defect in complying with the regulation would not only attract summary dismissal, the University is entitled to maintain actions for damages.

 

19.       Finally on allegation of not given fair hearing, learned Counsel submitted that when Claimant refused to answer the query issued to him, an Investigation Panel was set up; that Claimant refused to appear at the Investigation Panel to defend himself on the accusation of dereliction, abandonment and gross misconduct; that the Report of the Senior Staff Investigative Panel is shown by the Defendants as Annexure 20 to the statement of defence; that Claimant expressed his inability to attend even after the sitting was adjourned for him and that a party offered an opportunity to defend allegations against him but refused to utilise the opportunity cannot be heard to complain of not being heard or given hearing citing Bako v. Juje Area Council (2001)1 NWLR (Pt. 694) 382 at 390 & Stab Line Vision v. Mall (2014) NWLR (Pt. 1420) 150 at 202.

 

20.       Finally, learned Counsel submitted that in the face of the documents referred to, allegations of denial of fair hearing is unfounded; that Claimant has failed to establish justification for any of his claims and that the dismissal and rejection of his appeal were patently justified. Learned Counsel prayed the Court to dismiss the action of the Claimant as being vexatious and with substantial cost. 

  

21.       The final written address of the 3rd Defendant/Counter claimant was dated 26/2/26. It was filed on 3/3/26. In it learned Counsel set down these 3 issues for determination –

  1. Whether or not this suit is statute barred as to rob this Court of its jurisdiction.
  2. Whether the Claimant is entitled to the reliefs sought against the Defendants jointly and severally.
  3. Whether the 3rd Defendant is entitled to its counter claim.

22.       On issue 1, learned Counsel submitted that there are 2 limitation legislation relevant to this suit citing Public Officers Protection Law Cap. 137, Laws of Oyo State of Nigeria which particularly by its section 2(a) limits any action by the Claimant against the Defendants to three months from when the cause of action arose, and Limitation Law Cap.76, Laws of Oyo State of Nigeria, which by its Section 18 limits any action by the Claimant against the Defendants to five years from when the cause of action arose; that it is not in dispute that Claimant’s appointment with the 3rd Defendant was determined in January 2017 – a period of 7 years before the Claimant instituted this action on 1/3/2024 citing paragraph 22 of Claimant’s statement on oath dated 1/3/2024 as well as Claimant’s letter of dismissal listed as No 11 on his list of documents; that in respect of the dismissal of the Claimant from the employment of the 1st Defendant, even going by the argument that the dismissal was on 1/9/2022 that will still be outside the limitation period as provided by Section 2(a) of the Public Officers’ Protection Law Cap. 137 Laws of Oyo State, 2000 the Claimant having initiated this suit on 1/3/24 - a period outside the limitation period of three months and that 20/1/2017 and 1/9/2022 are dates of accrual of the cause of action when dates begin to run against the Claimant citing Maduka Enterprises (Nig.) Ltd v. B.P.E (2019) NWLR (Pt. 168) 429 at 445, Nwora v. Nwabueze (2019)7 NWLR (Pt. 1670) 1 at 34 & Buremo v. Akande (2017)7 NWLR (Pt. 1563) 74 at 96. Learned Counsel submitted that the effect of the Claimant’s suit being barred by statute or caught by the above limitation laws is that his right of action against the Defendants is extinguished and extinct by operation of law and he cannot maintain it against them in any Court of law citing Owolabi v. Seun (2023)11 NWLR (Pt. 1896) 539 at 548. Counsel prayed the Court to so hold and resolve this issue in favor of the 3rd Defendant.

 

23.       On issue 2, learned Counsel submitted that the Claimant has the evidential burden of proof on him to prove his claims citing Sections 131, 132 & 133, Evidence Act, 2011 & Ofongo v. A.P.C (2022)4 NWLR (Pt. 1821)543 at 573; that where an employee alleges wrongful termination of his employment or dismissal it lies on him to prove the wrongful termination or dismissal citing Skye Bank Plc v. Adegun (2024)15 NWLR (Pt. 1960)1 at 35-36 but that the Claimant has failed to discharge the burden of proof on him. Counsel urged the Court to resolve this issue in the negative and hold that the Claimant is not entitled to any of the reliefs sought.

 

24.       On issue 3, learned Counsel submitted that Claimant admitted by paragraph 2 of his statement of facts that 1st Defendant is established by the Ladoke Akintola University of Technology Law, 2020 whereas the 3rd Defendant was established by Ladoke Akintola University of Technology Teaching Hospital, Ogbomoso Management Board Law, 2010; that both 1st and 3rd Defendants are separate and distinct legal entities; that each offered the Claimant separate employment and equally separately determined same citing paragraphs 4, 7, 8 & 16 of the statement of facts and Claimant’s deposition; that Claimant’s employment agreement with the 3rd Defendant is dated 30/7/2010; that by that agreement, the Claimant is obliged to serve the 3rd Defendant personally and the Court will not allow him to read into such a contract terms on which there is no agreement citing F.B.N Plc v. Ben-Segba (2024)16 NWLR 1 at 27; that by its pleadings and its documents listed in particular as No. 2-5 in its list of documents dated 27/9/2024 the 3rd Defendant has discharged the evidential burden placed on it as a counter claimant and that the pleadings of the Claimant even supported the case of the 3rd Defendant citing Claimant’s response to Query dated 15/4/2016; that this response is a clear admission of continuous absence from work of the 3rd Defendant which is a fundamental breach by the Claimant of his employment contract with the 3rd Defendant citing Dr. G. S. Obo v. Commissioner of Education Benel(sic) State (2001)5 NSCQR 192 at 198-199 where the Court held that absence from work by an employee is a gross misconduct for which the employee is liable to summary dismissal as absence is a fundamental breach of his contract of service and that such an employee is not entitled to salary for the period of his absence. Counsel urged the Court to hold that by his admission in the response dated 15/4/2016 which does not need further proof he has breached his employment contract with the 3rd Defendant. Counsel further submitted that Claimant admitted by paragraph 23(c) of his statement of facts as well as of his statement on oath that he was paid the sum of =N=390,318.41 monthly during the period which payment he is not entitled to. Counsel prayed the Court to order a refund of the amount to the 3rd Defendant citing Oteri Holdings Ltd v. Oluwa (2021)4 NWLR (Pt. 1766)334 at 383.

 

25.       Finally, learned Counsel urged the Court to dismiss the case of the Claimant having been caught by the limitation laws and to grant the counter claims of the 3rd Defendants with substantial cost.

 

26.       Learned Counsel to the Claimant filed a reply on point of law to the final written address of the 1st & 2nd Defendants as well as a separate reply on point of law to the final address of the 3rd Defendant. Counsel had submitted among others that public officers protection laws do not apply to claims arising from contracts of employment citing National Revenue Mobilisation, Allocation & Fiscal Commission v. Ajibola Johnson (2019)2 NWLR (Pt. 1656) 247; that the continuous refusal of the Defendants to pay the Claimant’s salaries, allowances  and retirement benefits constitutes a continuing injury within the decision in Lt. PCN Onukwe & 4 Ors v. Nigerian Army & 2 Ors (2024)7 NWLR (Pt. 1938)501 at 539; that the counterclaim of the 3rd Defendant seeking refund of salaries allegedly paid between 2010 and 2016 is both legally and factually unsustainable as the counterclaim was filed in 2024 and that if the main suit is affected by the limitation laws then the counterclaim is also so affected. 

 

7.         Decision

27.       I have read and understood all the processes filed by the parties in this case. I have a clear understanding of all the issues canvassed by the learned Counsel to the parties. I also heard the oral arguments of the learned Counsel at the point of adopting their final written addresses.

 

28.       Firstly, I need to place on record that 5 parties were made Defendants in this suit. The 4th & 5th Defendants were duly served all the processes filed in this case. They were also served all hearing notices so as to be aware of the proceedings as they came up. However, notwithstanding the fact that they were served both processes as well as hearing notices, the 4th & 5th Defendants did not appear to defend this action. They neither entered an appearance nor were they represented throughout the trial. The fact remains that a party cannot be compelled to defend an action against him. The only obligation on the Court and the Claimant being to ensure that such a party is afforded adequate notice and information to assist him if and whenever he elects to defend same. Where however a party sued in an action refuses, fails and/or neglects to defend same, such a conduct may indicate one of two positions. It is either that the party sued is ready to abide by whatever decision the Court reaches or it may be that as far as the party sued is concerned the case against him is not only useless but needs not be defended.  

 

29.       Secondly, let me also point out that the parties in this case did not call evidence at all. When the parties completely settled their pleadings and the matter was to be set down for trial, learned Counsel on either side agreed to a trial on record procedure. By this, both Counsel agreed not to call oral evidence but rather to rely on the case as filed and decision to be reached based on the documents filed along with the processes. The procedure sought to be adopted finds support in the Rules of this Court. In this regards, Order 38 Rule 33(1) of the Rules of this Court states thus - 

 

“In any proceeding before the Court, parties may by consent at the close of pleadings agree to a trial on records where they rely only on the documents and exhibits frontloaded and thereby dispense with the need for oral testimony and/or cross-examination”. 

 

30.       The rationale for this is to enable maximum utilization of the available time of the Court towards speedy dispensation of justice especially in cases as the instant case where the need to call oral evidence can easily be dispensed with.

 

31.       Now having read, clearly understood and evaluated all the documents filed and relied upon by the parties, i set down 3 issues for the just determination of this case as follows –

  1. Whether the case of the Claimant is negatively affected by the limitation legislation to render same sterile and barren.
  2. Whether, if issue 1 above is resolved in the negative, the Claimant has adduced sufficiently cogent and credible evidence in support of his case to be entitled to all or some of the reliefs sought.
  3. Whether, if issue 1 is resolved in the negative, the 3rd Defendant has proved entitlement to the counterclaims sought against the Claimant.

32.       The first issue for determination is whether the case of the Claimant is negatively affected by the limitation legislation to render same sterile and barren. The learned senior counsel to the 1st & 2nd Defendants, Lasun Sanusi, SAN and learned Counsel to the 3rd Defendant, Abiola Ayegbusi Esq, argued strenuously that the case of the Claimant is affected by limitation laws of Oyo State. In this respect, the Limitation Law, Laws of Oyo State, 2000 and Public Officers’ Protection Law, Cap. 137, Laws of Oyo State, 2000 were cited.

 

33.       When a litigant contends that the suit against him is barred by the statute, it raises question as to the competency of the suit before the Court. A challenge to the competency of a cause or matter before a Court is a fundamental challenge to the competency of that Court to exercise its adjudicatory power over either the cause or matter or the parties or both. It is a challenge to the jurisdiction of the Court and once a Court lacks jurisdiction to hear and determine a cause or matter, it is immaterial the erudition and the genuine intention of the Judex as every effort dissipated in resolving same is an effort in futility. Now, in a matter of this nature, the trial Court is expected to find out firstly the date when the cause of action arose. In doing this the focus is the statement of facts in the instant case. Secondly, the Court is obliged to find out the date when the Claimant approached the Court for intervention. Again, this is determined by an examination of when the Claimant filed his case in this Court. Thirdly, the Court is to find out the limitation period as provided by the applicable legislation. Finally, the Judex is to compare the date of filing the action with the period allowed by the statute to determine whether the Claimant files his action within the time allowed by the statute.

 

34.       By paragraph 16 of his statement of facts, Claimant had pleaded thus –

 

“The Claimant avers that his appointment with the 3rd Defendant was terminated without the constitution of any panel to inquire into the cause of termination or an invitation of the Claimant to such constituted panel. The aforementioned letter dated 20th January 2017 is instructive on this point as there was no mention of the finding of any constituted panel”.

 

35.       The same fact was deposed to by the Claimant in paragraph 17 of his statement on oath of 1/3/2024. The said letter of dismissal dated 20/1/2017 was listed by the Claimant as No. 11 on his Schedule of Documents and the List of Documents to be relied upon filed on 1/3/2024.

 

36.       Now in paragraph 41 of his statement of facts which was repeated in paragraph 42 of his written statement on oath, Claimant pleaded as follows –

 

“The Claimant avers that without receiving any further invitation to the panel or disclosing the finding of the panel (if any), the Claimant’s employment was terminated by the 1st Defendant via its letter 1st September 2022. The letter of dismissal dated 1st September 2022 is hereby pleaded and shall be relied upon during trial of this suit”.

 

37.       It is apparent from the pleadings of the Claimant as highlighted above that he suffered two dismissals at different times from the Defendants. The 1st Defendant first dismissed him on 20/1/2017 while the 3rd Defendant dismissed him on 1/9/2022. Claimant’s cause of action therefore arose against the Defendants from the date he was dismissed. If therefore there is any limitation statute, he must bring his action within the period allowed by the statute. The available record shows that the Claimant filed this case on 1/3/2024. That was the day his General Form of Complaint dated same day along with his statement of facts, written statement on oath, list of witness as well as list and copies of documents to be relied upon at trial was received at the Registry of this Court and filed.

 

38. 1st to the 3rd Defendants have argued that the case of the Claimant is barred by the statute of limitation. Indeed, Counsel cited 2 legislation as rendering the claims of the Claimant unenforceable by judicial process. The first is the Public Officers Protection Law Cap. 137, Laws of Oyo State of Nigeria, Section 2(a) and Limitation Law Cap.76, Laws of Oyo State of Nigeria, Section 18. The first legislation, Public Officers’ Protection Law provides in Section 2(a) that -

 

“Limitation of Action the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury within three months next after the ceasing thereof: Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison”.

 

39.       Can the 1st to 3rd Defendants take advantage of the above provisions? In other words, are these Defendants Public Officers within the contemplation of the statute? The question as to who is a public officer within the meaning of Public Officers’ Protection Act came up for judicial intervention in Central Bank of Nigeria v. Awosusi Foluso & Ors (2021) LPELR-54879(CA). In that case Abundaga, J.C.A in the leading Judgment said thus -

 

“By Section 18 of the Interpretation Act, "'Public Officer' means a member of the public service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria or of the public service of the State" Section 318 of the Constitution of Federal Republic of Nigeria, 1999 (as amended), defines "civil service of the Federation" to mean: "Service of the Federation in a civil capacity as staff of the office of the President, the Vice-President, a Ministry or Department of the Government of the Federation assigned with the responsibility for any business of the Government of the Federation". The combined provisions of Sections 18 of the Interpretation Act, and 318 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), put the question beyond any form of argument that the Defendants are public officers”.

 

40. On the other hand, Section 18, Limitation Law of Oyo State, Cap. 76 Laws of Oyo State 2000 provides that –

 

“No action founded on contract, tort or any other action not specifically provided for in Parts 2 and 3 of this Law shall be brought after the expiration of five years from the date on which the cause of action accrued”.

 

41. In a long line of judicial authorities, from Okoronkwo v. INEC (2025) LPELR-80425(SC) to Dr Moses U. Anolam v. The Federal University of Technology Owerri (FUTO) & Ors (2025) LPELR-80027(SC), Mr Michael Idachaba & Ors v. The University of Agriculture, Makurdi (2021) LPELR-53081(SC) and INEC v. Ogbadibo Local Govt. & Ors (2015) LPELR-24839(SC), the apex Court of the land has consistently maintained the position that a case as the instant one is negatively affected by the Public Officers’ Protection Act. The Claimant had 3 months from the date of accrual of his cause of action within which to institute this action. Claimant failed and/or neglected to do within the time allowed by the statute as this case was filed on 1/3/2024. The reason for electing that cause of action appears known to him or his Counsel or both alone. The law is trite that when a statute prescribes the mode or method of doing a particular thing that mode or method must be strictly adopted in doing the thing otherwise any contrary steps taken shall be null and void. 

 

42.       Okoro, JSC stressed the point clearly in Mobil Producing Nigeria Unlimited v. Okon Johnson & Ors (2018) 14 NWLR (PART 1639) 329 at 359 citing M.P.P.P. v. I.N.E.C. & Ors (2015) LPELR-25706 (SC), (2015) 18 NWLR (Pt. 1491) 251; Federal Republic of Nigeria v. Wabara & Ors (2013) LPELR-20083 (SC), (2013 5 NWLR (Pt. 1347) 331; Nnonye v., Anyichie (2005) 2 FWLR (Pt. 268) 121, (2005) 2 NWLR (Pt. 910) 623; Ntiere v. NPA (2008) 10 NWLR (Pt 10094) 129 in the following words -

 

"As was rightly submitted by the learned counsel for the 1st-15th respondents, where a statute has provided for the method of doing anything, it must be done in accordance with the express provision of the statute. It is trite law that when a law provides a particular way/ method of doing a thing, and unless such a law is altered or amended by a legitimate authority, then whatever is done in contravention of those provisions amounts to a nullity and of no effect whatsoever”. 

 

43.       The failure of the Claimant to seek judicial intervention in this case within the time frame permitted by the law renders this case sterile, baren and unenforceable via judicial process and consequently robs this Court of its jurisdiction.  

 

44.       In University of Port Harcourt v. Mr Edwin Chira Nwuzor (2024) LPELR-62382(SC), Hon. Justice Ogunwumiju, JSC rationalised the limitation law in these words -

 

“The Limitation Act or Law sets out the time when an action can be brought and in the case of the Public Officers Protection Act, is meant to protect the government from stale claims. It also protects individual defendants from the injustice inherent in defending one's settled legal or factual position after evidence or memory of witnesses have faded and one has adjusted one's position and done far reaching things with a believe in the factual and legal authority to do so. In this case, the Public Officers Protection Act by Section 2(a) gives a Plaintiff only a period of 3 months within which to complain. The calculation of the 3 months is usually from the date when the cause of action arose and the violation complained of by the Plaintiff has completed. The Plaintiff must seek redress in a Court of law within the 3 months, after which the action becomes unenforceable”. 

 

45.       His lordship Hon. Justice Saulawa, JSC in the leading judgment in Okoronkwo v. INEC (2025) LPELR-80425(SC); (2025) 8 NWLR (Pt. 1991) 131 specifically held thus -

 

“A cause of action could be said to be statute-barred, where the proceedings cannot be commenced because the period prescribed under the law of limitation has already lapsed. And this can be determined simply by critically, albeit dispassionately, considering the originating process (the writ of summons and the statement of claim, or originating summons or motion, and the supporting Affidavit), alleging when the wrong was actually committed, thereby giving the Plaintiff a cause of action. Thus, once the date on which the Originating process was filed is beyond the period prescribed by the limitation law, then the action is deemed to be statute-barred”.

 

46.       Having held that this case is caught by the statute of limitation, it robs this Court of its jurisdiction to hear and determine same. Claimant cannot ventilate his grievances against the Defendants via judicial process. 

 

47.       On the proper order to make in a case of this nature, Georgewill, J.C.A in Sunshine Oil & Chemical Dev. Co. Ltd v. SON citing NPA Plc. V. Lotus Plastics Ltd. & Anor (2005) 19 NWLR (Pt. 959) 258 said -

 

"In law, once a Suit is found to be statute barred the proper order to make is one of dismissal”. 

 

48.       Accordingly, I dismiss the case of the Claimant for being statute barred and hence incompetent.

 

49.       The second issue for determination is whether, if issue 1 above is resolved in the negative, the Claimant has adduced sufficiently cogent and credible evidence in support of his case to be entitled to all or some of the reliefs sought. In resolving issue 1, this Court has held that the case of the Claimant is caught by Section 2(a), Public Officers’ Protection Law, Laws of Oyo State. That Law prescribed the time within the Claimant is allowed to institute his action against the 1st to the 3rd Defendants. Having been caught by the said limitation law, this Court has held that it lacked jurisdiction due to failure of the Claimant to bring his action within time. One of the consequences of the delay of the Claimant is that cause of action has lapsed, his suit becomes barren, empty and whatever rights he has cannot be enforced through judicial process. With the resolution of issue 1, any attempt at resolving this issue becomes otiose or at best an academic exercise. The case of the Claimant having been barred statute there is no valid case before the Court for the Court to consider. Accordingly, I pronounce that Claimant has failed to sufficiently prove his entitlement to any of the reliefs sought.

 

50.       It may however be that the decision reached respecting issue 1 is wrong. It may be, (not conceding though), that indeed the case of the Claimant is not negatively affected by the Public Officers’ Protection Law, Laws of Oyo State, I thus for whatever it is worth elect to consider this case on the merit. The second issue set for determination is whether, if issue 1 above is resolved in the negative, the Claimant has adduced sufficiently cogent and credible evidence in support of his case to be entitled to all or some of the reliefs sought. In other words, assuming the case of the Claimant is not barred by the statute whether he has adduced sufficiently cogent and credible evidence to be entitled to some or all the reliefs sought. The first 5 of the 12 reliefs sought by the Claimant are declaratory in nature.    Respecting these 5 declaratory reliefs, the law is trite that a declaratory relief is a call for the Court to exercise its discretionary power in favor of an applicant. Declaratory relief is never granted as a matter of course. It is even not granted on admission of a Respondent. An Applicant for same is obliged to adduce sufficiently cogent and credible evidence in support of the prayer before it is granted. In Attorney General of Rivers State v. Attorney General of the Federation & Anor (2022) LPELR-57708(SC), commenting on the nature and the granting of declaratory relief, Ogunwumiju, J.S.C said –

 

"A declaratory relief is a procedural device for ascertaining and determining the rights of parties or for the determination of a point of law. Although the power to make a binding declaration of right is a discretionary power, the Plaintiff must establish a right in relation to which the declaration can be made. The claim to which the declaratory relief relates must be substantial. Thus, a declaration will only be granted where there is a breach of a right. It is the practice that a declaratory relief will be granted where the Plaintiff is entitled to relief in the fullest meaning of the word. Furthermore, the relief claimed must be something which it would not be unlawful or unconstitutional or inequitable for the Court to grant. It should also not be contrary to the accepted principles upon which the Court exercises its jurisdiction." 

 

51.       The same position was taken by Uchechukwu Onyemenam, JCA in Solomon U. Salami v. Okogbo Community Bank Limited & Ors (2022) LPELR-57584(CA) when his lordship stated emphatically that a declaratory judgment is discretionary and that it is granted only where the plaintiff is able to convince the Court, that where all facts are taken into account, he will be entitled to the exercise of the Court's discretion in his favor. Now, I ask the question: where all the facts in this case are taken into account, will the Claimant be entitled to the declaratory reliefs sought?

 

52.       The foundation for the first 2 declaratory reliefs sought by the Claimant is the wrongfulness of his dismissal by the 1st and 3rd Defendants. The reliefs state thus –

  1. A Declaration that the purported termination of employment of the claimant vide a letter tagged “letter of Dismissal” with ref number REG/ESTAB/SSA/PF.943 dated September 1st 2022 and issued by the defendant is wrongful, illegal, null and void.
  2. A Declaration that the purported termination of the employment of the claimant vide a letter tagged RE: QUERY” with ref number LTH/OGB/DA/QRY/51/011 dated 20th January 2017 and issued by the 3rd defendant is wrongful, illegal, null and void and of no effect.

53.       In a case of this nature where an employee alleges that his dismissal is wrongful, the burden is on him to lead credible and cogent evidence in support of his assertion that the dismissal is wrongful. In this respect, the Claimant must place before the Court his contract of employment and show to the Court how his dismissal is in violation of the terms and conditions as contained in the contract of employment. Only recently, Ogunwumiju, JSC pointed out in Anaja v. UBA Plc (2025) LPELR-81179(SC) that -

 

"...an employee who is alleging that his/her dismissal was wrongful has the burden to show why it is wrongful and that the purported allegation of gross misconduct against him does not amount to gross misconduct".

 

54.       In other words, proof of contract of employment and the applicable term of engagement is sine qua non. This will invariably include whether the Claimant could be dismissed, who could dismiss the Claimant, what conditions must exist to warrant dismissal as well as the procedure to follow for any such dismissal to be valid. It is for the Claimant in the instant to draw the attention of the Court to the aforementioned and state what the 1st and 3rd Defendants failed to do which rendered his dismissal wrongful, null and void.

 

55.       I read and understood the pleadings filed by the Claimant, and particularly his 53-paragraph witness statement on oath of 1/3/2024. In all his averments, Claimant did not make any averments in relation to any of the issues raised here which are considered germane. In addition, I perused the List of Documents to be relied upon filed by the Claimant and dated 1/3/2024. The list contained 29 documents. In it there is no reference to any Conditions of Service or Rules and Regulations or anything in the guise of Staff Handbook which would have contained disengagement procedures in the 1st and 3rd Defendants. I note that the learned senior counsel to the 1st and 2nd Defendants made copious reference to Regulations Governing the Conditions of Service of Academic, Senior Administrative and Technical Employees of the 1st Defendant. It is surprising that the Claimant did not make any allusion to this document or found his case within the confines of same. Perhaps it would have made some sense if the Claimant had referred to how failure of the Defendants to comply with these Regulations rendered his dismissal wrongful as contended. 

 

56.       Aside from all this, I note that the Claimant freely asserted that the 1st and 3rd Defendants are creation of the Law. Yet, there is nothing before the Court showing the section of the Law establishing the 1st and 3rd Defendants which these Defendants failed to comply with and which rendered his dismissal wrongful. The bottom line of all this is that the Claimant failed to discharge the burden on him of proving the wrongfulness of his dismissal by the 1st and 3rd Defendants. That is the finding of this Court. Accordingly, Claimant failed to prove his entitlement to these reliefs in the fullest meaning of the word in the words of Ogunwumiju, JSC. Thus, I refuse and dismiss the first 2 declaratory reliefs sought. The first 2 declaratory reliefs sought by the Claimant are the pillars upon which the entire case of the Claimant rests. These pillars haven fallen like a pack of cards, there is nothing upon which the case of the Claimant can rest. As Lord Denning, MR of blessed memory said in UAC v. MacFoy (1962) A.C 152, you cannot place something on nothing and expect it to stay there, it will certainly collapse. In much the same vein, the entire case of the Claimant is destined to collapse. It has collapsed. I therefore resolve the second issue against the Claimant and in favor of the Defendants.

 

57.       Professor Victor Oyenkraibe Okoro the Claimant is not only a senior academic but also senior medical personnel and a Clinical Consultant. Quite apart from the expectation of the academic community of the 1st Defendant that Claimant would positively impact knowledge on younger members of the community through teaching and research, the society at large also looks forward to his contribution to the medical and health needs of patients who seek medical intervention at the 3rd Defendant. As the pleadings of the parties show, the genesis of the whole controversy in this case is the issue of the Claimant proceeding on Sabbatical Leave without approval and absence from duty generally.

 

58.       Records show that on 14/4/2016, a Query was issued to the Claimant by the Ag. Director of Administration of the 3rd Defendant. (See page 50 of the Record as front-loaded by the Claimant). The content of the first paragraph of the Query is instructive and I reproduce same here –

 

“It has come to the Notice of the Management that you have not been performing your clinical duties since the inception of the hospital. The Management considers this as unethical and unprofessional hence, demands your defence”.

 

59.       In his response dated 15/4/16, (See page 238 of the Record as front-loaded by the 3rd Defendant), Claimant had stated inter alia –

 

“I am sure those behind the allegation would not state that as a professor and substantive head of department whose office is at Osogbo, my schedule of duty would necessitate the delegation of some clinical duties at Ogbomoso that are considered best suited to residents and junior colleagues. They would have deliberately withdrawn the fact that I was on sabbatical leave, and also a one year accumulated leave, and that in the last three years I have been out of the country for a total of 4 months for training and conferences...”.

 

60.       There is no evidence before the Court that Claimant applied for and was granted either Accumulated Leave or Sabbatical Leave by the 3rd Defendant. The 3rd Defendant was not satisfied with this explanation and hence disengaged the services of the Claimant. Claimant appeared to confuse his 2 employers together. Yet both the 1st and 3rd Defendants are not the same. Indeed, the Claimant was by a letter dated 19/12/2001 (See page 38 of the Record as front-loaded by the Claimant) appointed a Clinical Consultant by the 3rd Defendant. I must restate the fact that there is no evidence on record that Claimant ever applied to the 3rd Defendant for any form of leave or permission to be away from work.

 

61.       With respect to the 1st Defendant, Claimant by an Internal Memorandum dated 14/6/2016 applied for Accumulated Leave (See page 45 of the Record). It was for 250 working days and was approved by a memo dated 14/1/2019. (See page 64 of the Record). I find no evidence before me to suggest that Claimant returned from the Accumulated Leave. However, on page 69 of the Record is an Internal Memorandum dated 9/7/2019 and titled Permission to Utilise 2018/2019 and 2019/2020 Annual Leaves for International Examination Preparation. It was written by the Claimant. I reproduce its first paragraph thus –

 

“I wish to utilise my 2018/2019 Research leave and the deferred 42 working days of it) as well as my upcoming 2019/2020 annual leave (planned for 1st October, 2019) to attend international preparation for the November MRCOG part 3 in United Kingdom. 

The examination requires hands-on experience in a developed country to prepare for. I wish to commence the leaves from 15th July, 2019”.

 

62.       It appears Claimant did not submit this memo to anyone in particular, the minute of the Head, Dept of O & G on that memo speaks volume. It states thus –

 

“This memo was found in the premises of the department dropped by unidentified person today 30/07/19”. 

 

63.       It is worthy of note and that is my finding that Claimant did not return to the 1st Defendant after he was granted his accumulated leave. It is also my finding that Claimant proceeded on a Sabbatical Leave without approval and while all this was still on, he again applied for permission to proceed on yet another set of leaves including “my upcoming 2019/2020 annual leave (planned for 1st October, 2019)”. The 1st Defendant gave the Clamant a platform for growth and make a living. Records show that Claimant was employed as a Lecturer 1 in 2001. Claimant rose through promotion to the position of a Professor of Obstetrics & Gynaecology. The least the Claimant could or should have done for the 1st Defendant would have been to be diligent in the discharge of his responsibilities of teaching and research. Unfortunately, the reverse was the case!

 

64.       No serious-minded employer and indeed no serious-minded academic institution as the 1st Defendant would keep condoning the kind of truancy exhibited by the Claimant a Professor of Obsterics & Gynaecology and a Clinical Consultant for that matter. It is my further finding that not only was the Claimant afforded opportunities to be heard, but he also elected to not utilise these opportunities and hence his dismissal after a due process. I dare say that the 1st Defendant ought to have effectively checkmated the tendency of the Claimant to disappear from work without approval. For as far back as 11/1/2005, (see page 128 of the Record) the 1st Defendant had directed the stoppage of Claimant’s salary because of his disappearance from work for 6 weeks only for the salary to be reinstated on humanitarian ground after his plea for mercy.

 

65.       The third issue for determination is whether, if issue 1 is resolved in the negative, the 3rd Defendant has proved entitlement to the counterclaims sought against the Claimant. The 3rd Defendant sought the following counterclaims against the Claimant – 1. An Order of this Honourable Court declaring that the Claimant as an employee of the 3rd Defendant breached his duty to the later. 2. An Order dismissing the Claimant’s claims in their entirety against the 3rd Defendant hereto with substantial cost. 3. An Order commanding or compelling the Claimant to refund a sum of =N=31,785,790.96 being salary (emolument) collected by the Claimant from the 3rd Defendant between August 2010 to December 2016 for work not done by the Claimant to the 3rd Defendant. 3. =N=20,000,000.00 compensation/damages for the Claimant’s breach of duty to the 3rd Defendant and any other ancillary relief this Honourable Court may deem fit to grant the 3rd Defendant in the circumstances of this suit.

 

66.       Counterclaim is a distinct and separate action on its own. As the Court of Appeal pointed out in Saliu v. Dogonbale & Anor (2018) LPELR-46116(CA) citing Okorie v. Chukwudi (2013) 35 WRN 140, and Akinbade v. Babatunde (2018) 7 NWLR (Pt. 1618) 366 at  395, Counter claim has the same position as an action being in itself a cross action and subject to the same rules as regards pleadings and evidence in Court. Commenting on Counterclaim in Oroja & Ors v. Adeniyi & Ors. (2017) LPELR - 41985 (SC), the Supreme Court per Rhodes Vivour, J.S.C. held thus -

 

"...A counterclaim is an independent action where the parties in the main action are in reverse roles. The Plaintiff becomes the defendant, while the defendant becomes the plaintiff..." 

 

67.       A counterclaim, in the words of   Monica Dongban-Mensem, J.C.A  (as he then was) (now Hon PCA) in Olayiwola v. Minister, F.C.T & Ors (2021) LPELR-53044(CA) is governed by the same rules that regulate claims made by the Claimant except that it is part of the Defendant's response to the Claimant's claim. Therefore, the Defendant in his counterclaim must prove his case by presenting evidence that supports the averments in the counterclaim. The duty of the trial Court with regards to the Counterclaim remains the same as in the main suit which is the evaluation of the evidence and the ascription of probative value on the evidence of both parties to the case. The burden of proof does not rest on one party but keeps shifting among the parties. The same rules and procedure which apply to the main suit apply to counterclaim. The Counterclaimant in a counterclaim must discharge the burden of establishing his entitlement to the reliefs which he claims. In much the same vein, just as the Claimant must ensure that his action is not incompetent under any guise, a Counterclaimant is under a similar obligation.

 

68.       In the resolution of the first issue set down for determination, this Court has held that the action of the Claimant is barred by the Public Officers’ Protection Law, Laws of Oyo State, 2000. The 3rd Defendant’s counterclaim is founded on the case of the Claimant which was not instituted within the period of 3 months allowed by the statute. The 3rd Defendant entered an appearance to this suit and filed its statement of defence on 3/10/2024. 

 

69.       Meanwhile the cause of action leading to the counter claim arose from the dismissal of the Claimant by the 1st and 3rd Defendants via letters dated 20/1/2017 and 1/9/2022 respectively. This case was filed on 1/3/2024.  The case of the Claimant was dismissed for having been barred by the Public Officers’ Protection Law, Laws of Oyo State, 2000. To the extent that this counterclaim was founded on and joined by the same umbilical cord as the main suit by the Claimant, it is bound to be dismissed. Counterclaimant should have brought a separate action of its own completely independent of the main suit. The statement of Lord Denning M.R in UAC v. MacFoy (1962) A.C 159 remains trite that one cannot place something on nothing and expect it to stay there. It will collapse. The counterclaims therefore suffer the same fate as of the main suit. Accordingly, I dismiss it for being barred by the statute and hence incompetent.

 

8.         Conclusion

70.       Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment, I dismiss the case of the Claimant for being barred by the statute of limitation. On yet another ground and for failure to prove his claims by cogent and credible evidence, I dismiss the case of the Claimant. In much the same vein I also dismiss the counterclaims of the Defendant for being caught by the Limitation Law, Laws of Oyo State.

  

71.       Judgment is entered accordingly.

 

 

____________________

Hon. Justice J. D. Peters

Presiding Judge