IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUMI

DATED: 21^st. MARCH, 2023                   SUIT NO: NICN/ABJ/366/2020

 

BETWEEN

MR. MOHAMMED AUDU………………………-CLAIMANT

AND

MEDIA TRUST LIMITED……………………….-DEFENDANT

                       

REPRESENTATIONS

F.I. Umahi Esq with Joseph Ameh Esq for Claimant.

R. Okotie- Eboh Esq with Tinuke Julius Adegoke Esq, David Amaefula Esq., O.U. Archibong Esq., O.Q. Olaniyonu Esq and Eloho Ogbobine Esq. for the Defendant.

                                               

JUDGMENT

1.     INTRODUCTION

As gleaned from the Originating process filed in this case, it is evident that this action is declaratory in nature. The law is settled beyond arguments that in a case seeking for declaratory relief as in the instant case, the claimant must succeed on the strength of his own case and not on the weakness of the defendant’s. See the following cases; Apugo v. Ugoji [2022]16 NWLR (Pt 1857)669@698, Paras B-C; Adamu v. Nigerian Airforce [2022] 5NWLR (Pt 1822)159; Zain Nig. v. TV ETRA Productions Ltd & Ors [2021] LPELR-53534CA. However, where part of the defendant’s case supports the claimant’s case, he is allowed to rely on part of the defendant’s case that supports his case. See the cases of Hanatu v. Amadi [2020] 9 NWLR (Pt 1728) 128, Paras A-C and; Salisu v. Mobolaji [2016] NWLR (Pt 1535) 280-281, Paras H-A. In fact, such actions will not succeed even on an admission by the other party. See the cases of Adesina v. Airfrance [2022]8 NWLR (Pt 1833)532@555-556, Paras H-B; Alhassan & Anor v. Ishaku [2016] LPELR-40083(SC) 20, From the abundant judicial authorities, it is clear that judicial pronouncements are ad idem on the principle of law that declaratory reliefs cannot properly be granted on mere admissions by the defendant in its pleadings. The law requires the Claimant to go further to provide proof or to adduce sufficient evidence of his entitlement to the reliefs claimed in order to justify or warrant the grant of the declarations. In essence, a declaratory claim is an invitation to make pronouncement on the legal position of a state of affairs. It is by itself not enforceable in law. Therefore, a declaratory judgment is a remedy for determination of a justifiable controversy. Thus, it is only granted as a judicial discretion only in the circumstances in which the Court is of the opinion that the party seeking it is entitled, when all facts are taken into consideration. See U.T.C. (Nig) Plc v. Peters [2022]18 NWLR (Pt. 1862 )297@312, Paras B-D. Thus, a declaratory relief will not be granted as a matter of course but only when a claimant is entitled in the full sense of the word. See U.T.C. (Nig) Plc v. Peters, supra particularly at page 313, Paragraphs A-B.

 

2.      The Claimant by a General Form of Complaint filed on 4^th December, 2020 the Claimants claims against the Defendant as follows:

 

1.      A declaration that the termination of the Claimant’s employment Vide a letter dated 22^nd November 2019 was unlawful, unconstitutional, illegal, null and void.

2.      A Declaration that the Defendant owes the claimant monthly salary of N147,000 from September, 2019 till Judgment is delivered.

3.      An order directing the Defendant to pay the Claimant his monthly salary in the sum of N147,000 from September, 2019 till Judgment is delivered.

4.       An Order Directing the Defendant to pay the Claimant the sum of N20,000,000 (Twenty Million Naira) only as General Damages.

5.      21% interest rate from the date of judgment until final liquidation of the judgment sum.

 

3.      It is the Claimant’s case that he was an employee of the defendant who rose through the rank to become Senior Officer on grade level 10 and has been given a long service award for his meritorious and selfless service to the Defendant. However, on 25^th July, 2019 he was issued a query on an allegation over posting items and he denied the allegations with supporting documents vide his response in line with the defendant’s corporate policy and condition of service. He was subsequently issued a letter of indefinite suspension without payment of salary and followed by a letter of dismissal without opportunity of hearing. Claimant contended that he was not given a fair hearing by the Defendant before the unlawful termination of his employment, that the posting of the soft smart software was done by him and no reconciliation was done on his account. According to him, his monthly salary is N147,000 before his employment was terminated. He finally stated that his dismissal has occasioned untold hardship on him and that the Court should declare his dismissal as unconstitutional, illegal, unlawful, null and void.

 

4.      The defendant admitted that the Claimant was its employee until his summary dismissal. It averred that Claimant was given query in respect of some allegations leveled against him by the defendant as regards discrepancies discovered by the Audit Department in the balance of news printing items during the review. It went on to state that Claimant was queried in respect of the discoveries and he responded to same and was subsequently suspended. However, in the course of investigation carried out as regards the alleged discoveries, it was discovered that Claimant engaged in other acts like sale of the defendant’s printing inks and newsprints as contained in the report of the investigation Committee set up by the defendant to investigate the allegations against Claimant. It averred further that the procedure laid down in the conditions of service for suspension and dismissal was complied with. That Claimant was invited to appear before an investigative Committee and he appeared at the Committee before which he made his defence. It continued that the report of the investigation conducted showed Claimant was involved in the pilferage of defendant’s newsprints and inks. By the provisions of its Conditions of service, a staff on suspension may not be entitled to monthly salary. Claimant was given an opportunity to be heard which he utilized. Claimant was not the only one affected by the recommendation of the Committee set up as one or two other staff were equally summarily dismissed in line with the recommendation of the Committee. The defendant posited that it followed the provisions of the Conditions of service in the discipline of a staff and asserted that the dismissal of Claimant is lawful and in accordance with the Conditions of service.

 

5.      On the 9^th day of November, 2021 Claimant opened his case by testifying for himself. Documents marked and admitted as Exhibits A-A6 were admitted through him. He was subsequently cross examined by learned counsel on behalf of defendant who also tendered document marked Exhibit A7 through Claimant. Afterwards, Claimant’s case was closed. On the 23^rd day of November, 2021, one Nuhu Ibrahim testified as DW1. Documents marked Exhibits N-N9 were admitted through him without objection from the Claimant. He was subsequently cross examined by learned counsel on behalf of Claimant. On the same date one Paul Obaje testified as DW2 and documents marked and admitted as Exhibits N10-N16 were admitted through him without objection from the Claimant. On the 24^th day of November, 2021, DW2 was cross examined by learned Counsel on behalf of Claimant. Afterwards, defendant’s case was closed and the case was adjourned for adoption of final written address.

 

6.      On the 23^rd day of May, 2022 learned counsel on behalf of the defendant filed his final written address though belatedly but was regularized wherein counsel formulated the following issues for the determination of this case;

 

 

1.     Whether by the Claimant’s breach of terms of employment, the Defendant did not act within its right and in compliance with Exhibit N13 when it terminated the employment of the Claimant.

2.     Whether the Claimant has successfully proved his case to be entitled to the reliefs sought.

 

7.      On issue one, learned defence counsel submitted that an employer has unfettered power to dismiss an employee for misconduct of any kind. She submitted that while misconduct may not clearly be spelt out “gross misconduct” has been defined to be acts which are grave and weighty as to undermine the confidence that should exist between employee and employer and misconduct in this sense is what the employer makes it out to be and could be a series of disobedient actions, acts of insubordination, absenteeism, embezzlement or some other conduct that would be considered detrimental to the corporate existence of an institution. She relied on Azenabor v. Bayero University, Kano [2009]17 NWLR (PT 1169) 96. She submitted further that it is trite that every contract of employment contains the terms and conditions that regulate the employment relationship, such as terms on determination, notice, wages, benefits, which are usually contained in the expressed contract of employment or implied into it be common law and custom. She cited in support the following cases; Longe v FBN Plc, supra and Abayomi v. Saap-Tech (Nig) Ltd [2020] 1 NWLR (PT 1706) 453. She submitted that the Court in construing the relationship between the Claimant and Defendant to the written agreement must confine itself to the plain words and meaning and that a cursory look at Exhibit N13, particularly Clause 14.6 discloses certain measures which the Defendant is empowered to employ in its establishment particularly when there is an issue of gross misconduct. She submitted that that working against the deep interest of the employer clearly amounts to gross misconduct entitling the employer to peremptorily dismiss the employer irrespective of the conditions of service.  She cited in support the case of Ajayi v. Taxaco Nig. Ltd [1987] 3 NWLR (Pt 62) PAGE 577. It is her position that it is in evidence that there were discrepancies discovered by the audit department in the balance of some production items during the review of the Defendant’s Abuja store activities between 1^st January 31^st December, 2017, while the Claimant was the store keeper and which discrepancies DW1 approached Claimant to reconcile but some discrepancies could not be reconciled as seen in Exhibit N4 and that the fact of the unreconciled discrepancies was not controverted by the Claimant.

 

8.      Learned counsel submitted that Claimant was given query and responded to same as seen in Exhibit N6 and failed to address all the issues raised in the query, thus the need to place Claimant on indefinite suspension pending investigation, which suspension was in line with Exhibit N13. She continued that further investigations by the Defendant revealed that one Aminu Abashe bought stolen newsprint and other items from the Defendant’s Abuja news store from the Claimant who was the Head Store keeper while one Sani Mohammed before the Committee testified and admitted that he sold the Defendant’s printing inks on behalf of the Claimant and that sometime ago the Claimant gave him 20 buckets of inks to sell for him. She referred the Court to pages 7-8 of Exhibit N9. She continued that there is no fixed rule of law as to the degree of misconduct which would justify a dismissal, that it is enough that the conduct of the servant is of grave and weighty character as to undermine the confidence which should exist between him and the master. He cited in support the case of N.A.B. Ltd v. Shuaibu [1991] 4 NWLR (Pt 399)450. She submitted that by the evidence before the Court, the Claimant’s action was not in interest of the Defendant as the unreconciled discrepancies showed lack of proper book keeping by the Claimant as the Store Keeper at the time. Learned counsel while relying on the case of Katto v. CBN [1999] 6 NWLR (Pt 607)390 submitted that that the defendant clearly followed the procedure provided in Exhibit N13 in issuing the query and the suspension of the Claimant relationship is purely contractual and the said suspension was done by the Defendant following a recommendation by the Defendant in Exhibit N12. She submitted that the law is trite that a master can suspend his servant or employee when necessary and it cannot amount to a breach of the servant’s/employee’s fundamental rights. We place reliance on the case of Amadiume v. Ibok [2006] 6 NWLR (Pt 975)158.

 

9.      Learned counsel submitted that Claimant’s allegation in his evidence in chief that he was suspended without salary from September, 2019 and a letter of dismissal issued on the 22^nd November, 2019 without an opportunity given to him or fair hearing was unfounded. She submitted that the evidence of the Defendant in Exhibit N7 was sought to be impugned by the Claimant when DW2 was asked whether the Claimant was invited before the committee and DW2 testified that the claimant was invited on the 19^th of September, 2019, 23^rd of September, 2019; 30th of September 2019 and 22^nd of October, 2019.  She referred the Court to page 7 of Exhibit N9 which clearly shows that the Claimant appeared before the Committee. She further submitted that Exhibit N16 which is the letter dated 2^nd of January, 2020 in response to Exhibit A6 the letter from the law firm of counsel to the Claimant, the Defendant in Paragraph 1-3 of the said Exhibit N16 clearly stated that the Claimant was given ample opportunity to defend himself. She submitted that the said Exhibit N16 is uncontroverted by the Claimant and there was no response by the Claimant’s counsel to the content of Exhibit N16. She submitted that the evidence of DW1 and DW2 on the receipt of the Claimant’s response to the query and the subsequent invitations were never controverted and it is the law that where evidence by a party to any proceeding is not challenged by the opposite party who had the opportunity to do so, it is always open to the court seised of the case to act on such unchallenged or uncontroverted evidence before it. She cited in support the case of Boye Ind Ltd v. Soweminmo [2022] 3 NWLR (Pt 1817)175. She submitted while relying on the case of Ndukwe v. UBN Plc [2021] 4 NWLR (Pt 1765) 165 that claimant was afforded fair hearing in the procedure leading to his dismissal. She also referred the Court to the following cases; Ansame v. B.O.N. Ltd [2005] 8 NWLR (Pt 928)650 and; Imonikhe v. Unity Bank Plc, supra @ 648. She submitted that the admission of Claimant’s counsel in Exhibit A6 that Claimant responded to the query he was given is binding on the claimant. She relied on the case of Agi v. PDP [2017] NWLR (Pt 1595) 386.

 

10. Okotie Eboh Esq, argued that the burden of proving the suspension and termination were wrongful or unlawful is on the Claimant. She submitted that the evidence of the Defendant on the unreconciled discrepancies and accusations against the Claimant were never controverted. She submitted that by the Claimant’s non-filing of a response to the allegations in the statement of defence and failure to impeach the evidence of the Defendant during cross examination, the Claimant can be said to have admitted the evidence of the Defendant on the event that led to the Claimant’s dismissal. She relied on MAUTECH v. Yarai [2020] 15 NWLR (Pt 1748)395@411. She submitted further that admitted facts need no further proof. The Claimant clearly admitted in that there was a response to the query. She relied on Anike v. SPDCN Ltd [2011] 7 NWLR (Pt 1246)227 and Mekwunye v. Carnation Registrars Ltd [2021] 15 NWLR (Pt 1798)1. She submitted while relying on the case of LCRI v. Mohammed [2005] 11 NWLR (Pt 935)1 that misconduct on the part of any employee which is inconsistent with the fulfillment of express or implied conditions of service may justify dismissal and urged this court to so hold. She relied on the case of Nwobosi v. ACB Ltd [1995] 6 NWLR (Pt 404)658@686 Para D. She submitted that the attachment Claimant alleged that he attached to the response to query is not before the Court, as he did not provide any such attachment to exonerate himself. She submitted that the Defendant followed its corporate philosophy in dismissing the Claimant. We urge this Honourable Court to hold that the Defendant acted within its right when it suspended and terminated the employment of the Claimant.

 

11. On issue two, learned Counsel for the defendant submitted that the Claimant who complained of wrongful termination of employment by the Defendant has the onus to prove the wrongful termination. She relied on Bamgboye v. University Of Ilorin [1999] 10 NWLR (Pt 622) 290; NITEL Plc v. Akwa [2006]2 NWLR (Pt 964) 391 and Nigerian Gas Co. Ltd v Dudu-Sola [2005] 18 NWLR (Pt 957) 292. Counsel posited that aside the allegations of wrongful termination, the Claimant clearly failed to provide before this court the way and manner and by how he is to be removed contrary to the provisions of Exhibit N13. She submitted that attendance of the claimant before the Committee on the 22^nd of October 2019 and opportunity afforded to bring additional evidence or to challenge the procedure makes the case of Claimant weak.  Counsel maintained that a party who seeks declaratory reliefs must rely on the strength of his case. She cited in support the following cases; Kwajaffa v. BON Ltd [2004]13 NWLR (Pt 880)146; Obe v. MTN Nig Comm Ltd [2021] 18 NWLR (Pt 1809)415.

 

12. According to learned counsel, from the evidence on record, the Claimant failed to provide evidence on proof of his relief for declaration that the Defendant owes him monthly salary of N147,000.00 (One Hundred and Forty-Seven Thousand Naira) from September till judgment is delivered. She submitted that Claimant did not challenge his suspension but seeks payment of salary within the period of suspension and beyond, up till when judgment in this suit is delivered. She submitted that the content of Exhibit N11 (also Exhibit A5) is clear, as to suspension of Claimant without pay pending the conclusion of all investigations and same is supported by Exhibit N13 and binding on the Claimant. It was also the submission of counsel that for Claimant to be entitled to relief 2, the onus is on the Claimant to prove that the Defendant lacked the powers to suspend, had no justification for the suspension and there was nothing empowering the Defendant to suspend the payment of salary and Claimant failed to do these. Counsel submitted relying on the case of Global Motors Holdings Nigeria Limited v. Akinyemi Adegoke Oyewole [2022]LPELR-56856 (CA) and A.C.B. Ltd v. Ufondu [1997] 10 NWLR (Pt 523) 169 that the gross misconduct of the Claimant justified the placement of the Claimant thus for the Claimant to seek a relief of salary covering the period of suspension, the Claimant must first seek the Court’s consideration of the propriety of the suspension which has not been done. Counsel maintained that there is no relief challenging the legality or otherwise of the suspension to warrant a declaration that the Defendant is bound to pay the sum of 147,000 from September till judgment is delivered and for the Court to make pronouncement on the sum thereof, it must consider the legality of the suspension which relief has not been sought has not been sought by Claimant. It is his position that the Court cannot grant a relief not sought. She relied on the case of Nigerian Air Force v. Shekete [2002]18 NWLR (Pt 798)129 and Union Bank (Nig) Ltd v. Adenya [1993] 6 NWLR (Pt 299)375. It was equally submitted by Counsel that the Court has no jurisdiction at common law to find that an employee whose employment has been terminated by the master is still in employment. She relied on the case of Odiase v. Auchi Polytechnic Auchi [1998] 4 NWLR (Pt 546)477. This is because the termination of a contract of service of even if unlawful brings to an end the relationship of master and servant, employer and employee.  She cited in support the case of Dudusola v. N.G. Co. Ltd [2013] 10 NWLR (Pt 1363)423. She submitted also that since the termination of the employment of the Claimant was a result of the misconduct of the Claimant thus cannot be entitled to any relief for salary and accordance with Exhibit N13. He relied on the following cases; Ekunola v. CBN [2013] 15 NWLR (Pt 1377) 224@ 269, Paras B-G; Borishade v. NBN Ltd [2007] 1 NWLR (Pt 1015) 217; NNB Plc v. Osunde [1998] 9 NWLR (Pt 566)511.

 

13. Learned counsel submitted that assuming but not conceding that the termination was wrongful that the Claimant will only be entitled to his salary in lieu of notice. She relied on Mobile Oil (Nig) Ltd v. Assan [2003]6 NWLR (Pt 816)308 and Obanye v. U.B.N. Plc [2018]17 NWLR (Pt 1648) 375@390 Paras A-F, 393, Paras H-B. She submitted that however, in the instant case, the dismissal of the Claimant was done in accordance with the laid down procedure in Exhibit N13. 

 

14. On relief 5 for 21% interest rate from date of judgment to final liquidation of judgment learned counsel submitted that in the event the court holds the termination wrongful the Claimant will only be entitled to salary in lieu of notice. She submitted further that Claimant has failed to prove any wrongful termination of employment. Thus, by operation of law, the reliefs sought by him are ungrantable in line with the nature of employment and the fact that the termination/dismissal of his employment was in compliance with the letter of employment and the corporate philosophy of the Defendant. She therefore urged the Court to resolve the issues canvassed by the Defendant in its favour and dismiss the suit in its entirety with cost.

 

15. On the 4^th day of November, 2022, learned counsel on behalf of Claimant filed his final written address on behalf of the Claimant wherein he formulated the following issues for determination in this case:

i.                    Whether the Claimant in the entire circumstances of this case is not entitled to fair-hearing and/or to be afforded an opportunity to defend himself of the accusations against him before being summarily dismissed from his employment.

ii.                 Whether the summary dismissal of the Claimant from his employment in the circumstances of this case is not tainted with breach of rules of natural justice and/or denial of opportunity of fair- hearing and liable to be set- aside for being unlawful, unconstitutional and null and void.

iii.              Whether the Claimant has made out a case to be entitled to the reliefs claimed in this suit.

 

16. Learned Claimant counsel argued the first and second issues together. Counsel submitted that that the summary dismissal of the Claimant from his employment in the circumstances of the pleadings and evidence in this case is tainted with breach of rules of natural justice and denial of opportunity of fair- hearing. He continued that it is trite law that rules of natural justice and the universal right of man to be heard and afforded opportunity of defending himself of accusations against him before any prejudicial decisions against him is taken. He relied on Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 as Amended (hereafter referred to as the Constitution) and Section 7 of the International Labour Organization Conventions 158 of 1982. He submitted further that right to fair hearing and natural justice has been made to apply in cases of Master-servant relationships in Nigeria. He relied on the case of Shell Petroleum Development Company Ltd v. Sunday Olarewaju [2008] 12 SC (Pt III) 27@ 43. He submitted that the query issued by Abdullahi Mainasara who is not the Claimant’s Head of Department is in breach of the Conditions of service. He submitted that the Defendant is under duty not only to justify such allegation but also to establish the reason as well as satisfy the Court that in the proceedings of the Disciplinary Committee leading to the summary dismissal Claimant, was invited or informed of the dates of the Committee’s sittings and afforded the opportunity of confronting the witnesses who testified or gave evidence against him before the Committee. He cited in support; NEPA v. Eboigbe [2009] 8 NWLR (Pt. 1142) 150@152; Angel Shipping & Dyeing Ltd v. Ajah [2000] 13 NWLR (Pt. 685) 532 and; Obot v. CBN [1993] LPELR- 2192(SC)1@34- 36.  He submitted that it is in evidence that the only invitation extended to the Claimant about the sittings of the Committee, was for the 9th of September, 2019 on which day the Committee did not sit and no other invitation(s) was extended to the Claimant. However, the Committee sat on 19th September, 2019; 23rd September, 2019; 30th September, 2019 and 15th October, 2019 on which dates the Committee received the evidence of persons who gave evidence against the Claimant. The Claimant was never aware of the sittings of the Committee on those dates and of the evidence against him. Thus, the Claimant was denied the opportunity of confronting these material witnesses who gave evidence against him as he was neither invited nor informed of the sittings of the Committee on those dates and thus lost the opportunity to cross-examine these witnesses. He submitted that the composition of the Disciplinary Committee must strictly comply with the provisions of Articles 14.9(b) (ii) as well as (c)(iv), of the Conditions of Service. He relied on the following cases; Board Of Management, F.M.C Markurdi v. Abakume [2016] 10 NWLR (Pt. 1521) 536 @547; 577, Paras B- D and; Aloysius v. Diamond Bank [2015] 58 NLLR (Pt. 199) 92. It is his submission that natural consequences of the disciplinary proceedings against the Claimant being tainted with denial of fair hearing, is that the entire proceedings including the report of the Committee which formed the basis of the decision of  summary dismissal of Claimant from employment, cannot stand. He relied on Obot v. CBN, supra and Ceekay Traders Ltd v. General Motors Company Ltd [1992] 2 NWLR (Pt. 222) 132.

 

17. On issue three, Umahi of counsel submitted that notwithstanding the explanations of Claimant in his response to query which the Human Resources Department of the Defendant acknowledged as providing sufficient explanations to the query issued to the Claimant and that the Claimant ought to have been issued another query to rebut the explanations provided in his answer, the defendant, went ahead to constitute a Disciplinary Committee to investigate the purported allegations against the Claimant upon which investigation he was dismissed. He submitted that Claimant was not dismissed based on not being satisfied with his explanations in his answer to the query. Hence, the facts of this instant case are to be distinguished from the authority of the cases of Eze v. Spring Bank Plc [2011] 12 SC (Pt. I) 173 and; Imonikhe v. Spring Bank Plc [2011] 5 SC (Pt. I) 104. He submitted that Claimant in line with his pleadings, demonstrated through both documentary and oral evidence that the constitution of the Disciplinary Committee as well as its proceedings were not in compliance with the terms and conditions of employment and that he was not afforded opportunity of fair hearing by the Disciplinary Committee of the Defendant which investigated the allegations against him before his summary dismissal. He posited that DW1 DW2 2, under cross-examination admitted that the Claimant’s Head of Department did not issue him any query at any material time in relation to the alleged discrepancy or shortfalls in the store record, nor did the HOD, refer the query issued to the Claimant by the Head of Audit, with recommendations, to the Human Resources Department, for action. It is also his submission that DW1 and DW2, further admitted under cross-examination that both Abdullahi Mainasara, Head Audit, who served as the Secretary of the Disciplinary Committee as well as Nuhu Ibrahim, who served as co-Secretary, were staff of the Audit Department and therefore not qualified to act as the Secretary of the Disciplinary Committee. It is his position that is trite law that facts admitted needs no further proof and that evidence elicited under cross-examination is as potent and reliable as any evidence obtained under examination-in-chief in support or defence of a party’s case.  He relied on Akomolafe & Anor v. Guardian Press Ltd & 3 Ors [2010] 1 SC (Pt. 1)58@74.

 

18. It is also part of learned counsel’s submission that it is the law that where a party pleads a fact and produces evidence in line with his pleadings in support of those facts, the Court is bound to accept same and act on it. He relied on Oseni v. Bajulu & 2 Ors [2009] 12 SC (Pt.II) 81@92. He urged the Court to so hold that having regard to the pleadings and evidence on record, Claimant has discharged the burden of proof on him as the evidence produced by him in support of his claims preponderates over that produced by the defendant. He maintained further that the burden of proof has shifted to the Defendant to justify the reasons for its summary dismissal of the Claimant from employment by producing concrete and cogent evidence showing and establishing the actual number of unaccounted newsprints and printing inks remaining unaccounted after the reconciliations exercise between the Claimant and DW1. It is counsel’s position that the Defendant failed in the discharge of the burden of proof on it in this regard. He submitted further that DW1, admitted under cross-examination that whenever a contractor or supplier supplies production items Claimant’s department’s Materials Management Department, such are usually counted and verified by the Audit Department together with the staff of the Materials Management Department and in the presence of members of other relevant departments. Thus, how come Claimant is being accused of stealing these materials that the audit confirmed to have been supplied and in the stores without any evidence/report that there was any burglary or break-in into the stores. Counsel opined that where, as in the instant case,  it has been established that the procedure leading to the dismissal of an employee by his master was non-compliant with the terms and conditions of employment as agreed parties and  the rules of natural justice, the Court ought to set-aside the dismissal for being null and void. He relied Ojo Johnson Ayagbe v. Yidiat Babalola & 82 Ors [2010] LPELR- 3668(CA). Counsel made further submissions that that the dismissal of the employee is tainted by denial of right to fair hearing and for non-compliance with agreed terms of contract, damages should be awarded for breach of contract and the measure of damages is such that would compensate the employee and put him in the same position he would have been had the employment continued as envisaged or until validly terminated through adequate notice in accordance with the agreement of parties. He cited in support the case of Maiduguri Floor Mills Ltd v. Abba [1996]1 NWLR (Pt. 473) 506@511.

 

19. Learned counsel also posited that the Claimant has not been paid his salaries since his indefinite suspension after the query, throughout the period of his investigation that lasted till when he was summarily dismissed, and till date, contrary to the provisions of Article 14. 7 (iii) of Claimant’s terms and conditions of service. He cited in support the following cases; University Of Calabar v. Esiogu [1997] 4 NWLR (Pt. 502) 719 @723; Boston Sea Fishing Co. v. Ansell [1886- 90] All ER 65; Longe v. First Bank Of Nigeria Plc [2010] 2- 3 SC (Pt. III) 61 94- 95. He submitted that the Claimant is entitled to his salaries for this entire period up to the date of the judgment of the Court having regard that the purported dismissal of the Claimant is tainted by non-compliance with the procedure outlined in the agreement of parties as well as for denial of fair hearing. He urged to grant all the heads of claim in the suit and award judgment in favour of the Claimant.

 

20. Learned counsel on behalf of the defendant filed a Reply on Points of law to the final written address of Claimant on the 13^th day of December, 2022 wherein he submitted that the employment relationship between parties is that of master-servant. She relied on the case of Chukwuma v. Shell Petroleum [1993]4 NWLR (Pt 289)512. He submitted that once the procedure adopted for termination is in line with the condition of service, the question of fair hearing does not arise. She relied on the case of Adams v. LSDOC [2000]5 NWLR (Pt 656)291. She maintained that a convention will only have a force of law where it has been domesticated. She relied on Section 12 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the case of General Sanni Abacha v. Chief Gani Fawehinmi [1996]9 NWLR (Pt 475)710. She submitted that the case of Shell Petroleum Development Company Ltd v. Sunday Olarewaju, supra relied on by Claimant is not apposite in this case as its facts are distinguishable from the one in this case. He relied on the case of Odugbo v. Abu [2001]14 NWLR (Pt 732)45; Ngige v. Obi (No 1)[2012]1 NWLR (Pt 1280).  He submitted that parties are bound by their pleadings and Claimant’s failure to raise the issue of the issuer of the query in his pleadings is fatal to his case. He submitted further that the issue cannot also be raised for the first time in the final written address of Claimant. She opined that such issue cannot be raised by counsel on behalf of the claimant for the first time in his final written address and relied on the case of Dodo v. Salanke [2006]9 NWLR (Pt 986)447. She maintained further the address of counsel is not a substitute for pleadings. He cited in support the case of Andrew v. INEC [2018]9 NWLR (Pt 1625)9 NWLR (Pt 1625)507@565, Paras C-D. Learned counsel also submitted in response to paragraph 4.10 of the Claimant’s final written address that the Claimant cannot cherry pick on the question that is relevant to his question under cross examination and cited in support the case of Rimdan v. Lar [1999]9 NWLR (Pt 620)614.

 

21. Learned counsel in her further submission responded that a body such as Panel of Enquiry which is not acting in judicial capacity does not take evidence on oath the question as to the right to cross examine is not relevant. She cited in support the case of Udo v. CSNC [2001]14 NWLR (Pt 732)116. It is his position that the Committee merely recommended the dismissal as it has no power of dismissal. Counsel maintained that the evidence that claimant was present on the 22^nd of October, 2019 was never impeached and oral evidence cannot alter the content of the document and cited in support the case of Agbakoba v. INEC [2008]18 NWLR (Pt 1119)489. 

 

22. According to learned counsel claimant merely alleged denial of fair hearing without giving facts and which burden is on him to prove in the light of the facts of the case. He cited in support the following cases; Musa v. Fed Min. of Tourism Culture Nat Orientation [2013]10 NWLR (Pt 1363)556; INEC v. Musa [2003]3 NWLR (Pt 803)72; Maikyo v. Itodo [2007]7 NWLR (Pt 1034)443. She posited that what the law envisages is substantial compliance and which the defendant has demonstrated via evidence. Counsel opined that dismissal of claimant since the employment relationship being one of mater-servant cannot be declared null and void while relying on the cases of Isievwore v. NEPA [2002]13 NWLR (Pt 784)417; Adewumi v. Nig. Eagle Four Mills [2014]14 NWLR (Pt 1428)443. She maintained that an employee whose employment has been terminated cannot choose to still treat the employment as still subsisting by suing for what he should have earned. She cited in support; Ekenola v. CBN [2013]15 NWLR (Pt 1377)224; Imonikhe v. Unity Bank Plc [2013]12 NWLR (Pt 1262)624. Counsel also submitted that the issuance of query satisfies the requirement of fair hearing. She relied on the case of Imonikhe v. Unity Bank Plc, supra.

 

 

23. I have carefully and thoroughly perused the originating processes in this suit, the statement of defence of the defendant, the documents relied on and the address of parties in support of their diverse positions, I am of the respectful view that the two issues that arise for the determination of this case are;

1. Whether the Claimant’s dismissal was done in contravention of the   rule of fair hearing and the provisions of the Conditions of service and thus wrongful?  

2. Whether Claimant is entitled to the reliefs sought in this case

24. On the preliminary, it is germane for me to address the way and manner the defendant herein entered appearance in this case which has a bearing with the jurisdiction of this Court to entertain this case. Generally, when the Court raises an issue suo motu it has to give parties the opportunity of addressing it. However, this principle just like any other legal principle is not without its own exceptions and one of which is when the issue raised touches on the jurisdiction of the Court. See the case of Owners the MT Marigold v. NNPC [2022]7 NWLR (Pt 1828)166@190-191, Paras D-D.  In the case of Idachaba v. University of Agriculture, Makurdi [2021]11 NWLR (Pt 1787)209@230, Paras F-G held that the Court exists to determine and examine with due diligence and sense, matters before it in its pursuit of justice. Therefore, the Court will not close its eyes to any irregularity shown on the record without suo motu dealing with it. Learned Counsel on behalf of the defendant on the 15^th day of December, 2020 entered conditional appearance for the defendant in this case vide the memorandum of conditional appearance as seen on page 32 of the Record. It is well settled in law that when a defendant enters, a conditional appearance, he intends to object to the jurisdiction of the Court. See the cases of Izeze v. INEC &Ors [2018] LPELR-44284 (SC)1@5, Para D; Enterprise Bank Ltd v. Aroso[2014]3 NWLR (Pt 1394)256 @295, Paras F-H and Emeka v. Okadigbo [2012]18 NWLR (Pt 1331)55@92,Paras B-D. Contrary to the above position of the law, it is observed that the defendant herein after entering conditional appearance did not object to the jurisdiction of this Court as expected by its conditional appearance and the proceedings proceeded till trial was completed. In line with the decision of the apex Court in the cases of U.B.N. Plc v. Awmar Properties Ltd. [2018] 10 NWLR (Pt.1626) 64@75-76. I find that the appearance of the defendant in this suit is an unconditional one. Flowing from the above authorities, the defendant having not raised any objection to the jurisdiction of this Court after entering conditional appearance is deemed to have made an unconditional appearance and thus surrendered to the jurisdiction of this Court to entertain this case.

 

25. Now to issue one, the law is settled that in a master-servant employment relationship the termination of an employment can only be wrongful where it is in breach of the terms and conditions of employment. This is because parties are bound by the terms of the contract they voluntarily entered into. As such, once there is compliance with the terms and conditions of the employment, the termination/dismissal cannot be said to be wrongful. Any disciplinary measure by way of termination or dismissal must equally follow the laid down procedure in the terms of employment else the termination or dismissal would be wrongful. See the following cases; U.T.C. (Nig) Plc v. Peters, supra at page 319, Paras C-D; Obanye v. U.B.N. Plc [2018]17 NWLR (Pt. 1648) 375; Organ v. N.L.N.G. Ltd [2013]16 NWLR (Pt 1381)506. Thus, it is the duty of an employee who alleges wrongful termination/dismissal to place before the Court the terms and conditions of employment and to prove in what manner those terms were breached by the employer. In the case of Nigerian Romanian Wood Industries Ltd. v. Akingbulugbe [2011] 11 NWLR (Pt. 1257) 131@148, it was held that where the Claimant is claiming that his employment was unlawfully terminated, he must plead and lead evidence to establish the following: a) That he is an employee of the defendant; b) The terms and conditions of his employment; c) The way and manner and by whom he can be removed and ; d) The way and manner the terms and conditions of his employment was breached by his employer. See the following cases; Nigeria Security Printing & Minting Plc v. Umoh   [2022] LPELR- 56924(CA)1@18-19 Para. F; Akpabio v. Union Bank [2021] LPELR-54301(CA)1@ 23-24, Para. A and; Union Bank v. Salaudeen [2017] LPELR-43415(CA)1@18-20, Para. D. Claimant in this case, tendered his letters of confirmation of appointment, promotion and offer of appointment as exhibits A, A1 and A7 all these go to show that he was an employee of the defendant. He has equally placed before this Court Exhibit A3 which is the defendant’s Corporate Philosophy and Conditions of Service. In cases of this nature where an employee complains to the Court of his dismissal on grounds of misconduct what the Court is expected to look out for first is whether the dismissal was in accordance with the terms of the employment and secondly whether the principle of audi alteram patem which imposes a duty upon the employer to act fairly has been observed. Acting fairly in this circumstance entails the employer giving the employee an opportunity to explain himself before taking any decision which would affect his proprietary right. See the following cases; UBA Plc v. Oranuba [2013] LPELR-20692(CA)1@42, Para A University of Calabar v. Essien [1996] 10 NWLR (Pt.447)225@262; Yusuf v. Union Bank [1996] 6 NWLR (Pt.457) 632; Olatunbosun v. Nigerian Institute for Social and Economic Research [1988] 3 NWLR (Pt. 80)25@52. It does not matter the type of employment held by the employee, the employer apart from following the terms and conditions of employment must of necessity afford the employee an opportunity of being heard before terminating his employment. In other words, whether the employment is master-servant or one laced with statute, fair hearing must be observed before dismissal. See the case of Ziideeh v. Rivers State Civil Service Commission [2007]LPELR-3544(SC)1@28-29, Para F and; Arinze v. FBN Ltd [2004]LPELR-551(SC)1@16, Para D. Claimant herein contends that he was not given an opportunity of fair hearing before his dismissal from the employment of the defendant.

 

26. In this case, the employment relationship between parties continued till the summary dismissal of Claimant. The letter of summary dismissal reads as follows;

This is to inform you of the decision of Management to dispense with your services with immediate effect. This is for acts of gross misconduct and contravention of staff conditions of service of the company.

Recall that you were queried and thereafter faced the committee set up to investigate the alleged pilfering of newsprints and ink from the store of the company.

After conclusion of investigations, your response to the query as well as testimonies from witnesses clearly implicating you, we regret to inform you that Management is not satisfied with the explanations you provided. Hence, the decision to dispense with your service.

You are required to handover all company’s property (if any) and your staff identity card to the undersigned, as well as settle any outstanding loans and advances against you.

27. It is hornbook law that documents speak for themselves and do not need any external or intrinsic aids to be understood. See the case of Ugwuegede v. Asadu [2018]10 NWLR (Pt 1628)460@447, Paras D-E. It is effulgent from the letter of summary dismissal highlighted above that Claimant’s dismissal is based on “acts of gross misconduct and contravention of staff conditions of service. The law is on a firma terra that where parties have reduced the terms and conditions of service into writing by way of contract, the conditions must be observed. This is because the common law recognizes and protects the sanctity of contract. This finds expression in the latin maxim pacta sunt servanda.  See; Antonion Oil Co Ltd v. Access Bank Plc [2020]17 NWLR (Pt 1752)99@119, Paras B-D; A.G. Nasarawa State v. A.G. Plateau State [2012]10 NWLR (Pt 1309)419@450, Paras A-B; Chukwuma v. Shell Petroleum [1993]4NWLR (Pt 289)512@560, Para F. The position of the law as regards master servant relationship is clear as the law sees it as a contractual one governed by the terms and conditions of the employment contracts. See the case of Oak Pensions v. Olayinka [2017] LPELR- 43207 (CA)1@39-42, Para G. As such, where the employer wishes to terminate employee’s employment, he must do so in accordance with the contract entered into by parties. See the case of Organ & Ors v. Nigeria Liquified Natural Gas Ltd [2013] LPELR-20942 (SC) 34-35, Para E ; Longe v. FBN, supra and; Garuba v.  K.I.C Ltd [2005]5NWLR (Pt 917)160@179, Paras D-F. Allied to the above is the principle that parties are bound by the terms of contract entered into and Court will not rewrite contract for parties. See MTN Communication Ltd v. Corporate Investment Communication investment Ltd[2019] LPELR-47042SC; Obanye v. UBN Plc, supra @389, Paras D-F. The duty of Court in such instance is to interpret the contract in line with the clear intention of parties. See Adedeji v. Obajimi [2018]16 NWLR (Pt 1644)146@165, Paras G-H.

 

28. The said Condition of service is in evidence as Exhibit A3 and parties are ad idem that it is the contract that regulates their relationship. It is thus this document that would be considered at this stage so as to determine what the terms of contract between parties is as regards dismissal and if the laid down procedure were followed. Exhibit A3 in its Part 14 deals with Discipline and stipulates as regards Summary Dismissal thus-

            14.7 SUMMARY DISMISSAL

i.                    Dismissal means loss of employment and loss of earned benefits.

ii.                 A staff member may be summarily dismissed from his/her appointment on grounds of gross misconduct, which makes his/her continued employment prejudicial to the proper working of the company.

iii.              A staff member who is summarily dismissed from his/her appointment shall only be entitled to his/her salary up to the date of his/dismissal.

iv.               Where an offence has been committed which merits termination or summary dismissal but where the management does not exercise its prerogative of termination or dismissal, “first and last warning” or “second and last” warning letters may be issued and the fact that the warning is a final one will be made clear in the letter.

 

29. I have gone through the whole of the Conditions of service tendered in evidence with the mastery of an eagle eye and I can say that there is nowhere the said contract made specific provisions for acts that will be termed or amount to gross misconduct which was what Claimant in the letter of dismissal was alleged to have committed. However, paragraph 1.2(p) and (q) of the Conditions of service which is the definition paragraph provide thus;

(p) “Misconduct” means any act(s) inimical to the discipline and proper administration of the company and shall, without prejudice to the foregoing include corruption, moral misconduct, dishonesty, false claims against the company, insolence, insubordination, negligence of duty, divulging official and classified information to unauthorized persons, fraud, falsification of accounts or records, conviction on a criminal offence, absence from duty without lawful excuse, and generally the commission of all acts which are inconsistent with proper  performance of the duties for which the staff was employed as well as the company’s core values.

(q) “Gross Misconduct” means any conduct which in the opinion of the relevant authority amount to an aggravated degree of misconduct as defined above.”

It is clear from the above captured provisions of Exhibit A3 that it is the prerogative of the defendant to determine which act will amount to an aggravated degree of misconduct to be a gross misconduct that may lead to summary dismissal. As captured earlier, an employee of the defendant may be summarily dismissed from employment for acts of gross misconduct which by Exhibit A3 is said to be an aggravated degree of misconduct. Claimant herein was dismissed for gross misconduct and contravention of the conditions of service as seen earlier in the portion of the letter of dismissal reproduced above. The Conditions of service makes copious provisions on disciplinary procedure. The pith of Claimant’s suit as contained in paragraph 15 of the statement of facts is that the said procedure was not complied with in the process leading to his dismissal, it is expedient for me at this stage to set out verbatim ac literatim, the disciplinary procedure in the said Conditions of service that is Exhibit A3. It provides thus;

“PART FOURTEEN-DISCIPLINE

            14.1   DISCIPLINE

Any one or more of the following disciplinary measures may be invoked against an erring member of staff, depending on the gravity of the offence.

(1)      Caution/Verbal warning

(2)      Financial Surcharge or Penalty

(3)      Written warning

(4)      Suspension

(5)      Termination

(6)      Summary Dismissal.

 

14. 2 VERBAL WARNING

Minor offences shall in the case of any first offender receive a verbal warning, which will be a reminder to the staff that he is staff that he is stepping out of bounds; a series of minor offences, particularly repetition of the same offence will obviously constitute unsatisfactory behavior, in which case the staff may be issued a caution letter.

            14.3 QUERY

The staff member’s immediate superior/head of unit/head of department, or any member of the executive management may issue or direct to be issued a query to any staff, calling on him/her to explain within 24 hours reasons for his/her official duties. If the explanation of the staff is not satisfactory enough, the Human Resource Manager shall further query the staff, and together with the staff’s reply, prepare a submission to the disciplinary committee for deliberations.

14.4 WRITTEN WARNING

(a)     Where a staff member commits an offence, which does not amount serious misconduct, or where his/her explanation as requested in subsection 14.3 above is unsatisfactory, the Human Resource Manager can deal with such matters in the case of junior staffs while the Managing Director and Editor-in Chief can deal with matters pertaining to senior staffs and issue warning letter respectively. Other disciplinary cases by their nature will have to pass through the disciplinary committee.

(b)     If, after two of such written warnings, the staff member commits a third offence, his/her appointment may be terminated.

SUSPENSION

(a) Where a staff member is suspected of serious misconduct, he/she may be suspended from work for a maximum period of three months during which investigations shall have completed and decision taken.

(b)  A staff member under suspension shall be required to hand over any uniform/s, identity card, keys, books, records and/or any other property belonging to the company excluding items that may have been acquired through loans in his/her charge of the Head Human Resource and shall be forbidden to carry out any duty or visit his/her place or work.

(c)  A staff member on suspension may not be entitled to his/her monthly   salary and allowances.

14.6 TERMINATION

The company may terminate forthwith the appointment of staff member on    grounds of any misconduct or service no longer required.

OFFENCES FOR WHICH TERMINATION OF APPOINTEMENT IS THE PENALTY

a)  General inefficiency such as failing to do the amount and quality of work that is expected of an employee and non compliance or failure on the part of any supervisory officer to comply properly and promptly with assign responsibility

b)  Any form of financial misconduct either directly, indirectly, in cash or in tampering with records.

c)        Negligence

d)        Use of foul and abusive language

e)        Fighting

f)         False allegation against management or any employee of the     

g)      Acts, which are detrimental to the image or efficient performance of  the company

h)        Continued unsatisfactory performance

i)         Insubordination, insolence or rudeness

j)         Misconduct under the influence of alcohol or other intoxicant

k)        Unauthorized disclosure of information

l)         Engaging in any activity that conflict with the company’s interest or      code of conduct

m)       Sexual harassment

n)        Violations of any of the company’s core values.

 

14.7     SUMMARY DISMISSAL

i.          Dismissal means loss of employment and loss of earned benefits

ii.         A staff member may be summarily dismissed from his/her on grounds of gross misconduct, which makes his/her continued employment prejudicial to the proper working of the company.

iii.      A staff member who is summarily dismissed from his/her     appointment shall only be entitled to his/her salary up to the date of his dismissal.

v.                  Where an offence has been committed which merits termination or dismissal, “first and last warning” or “second and last” warning letters may be issued and the fact that the warning is a final one will be made clear in the letter.

 

14.8   FINANCIAL SURCHARGE OR PENALTY

Where a staff member deliberately or through negligence or carelessness causes loss or damages to the company in tangible or intangible terms, the company may surcharge him/her such amount as may be necessary to replace or redeem the lost (sic) loss of damage property.

14.9    CRIMINAL OFFENCE

i. A staff member charged with criminal offence/s may be suspended from work pending the outcome of police investigation or court proceedings on the matter.

ii. A staff member who is remanded in prison custody during the proceeding shall be suspended from work without pay while being on remand.

iii. Suspension from work shall continue throughout the proceedings.

iv.Where a staff member’s appointment is not terminated as a result of criminal proceedings, then upon acquittal by the court, such staff shall be reinstated and arrears of half salary for the period of suspension shall be paid to him.

v.If court proceedings led to ultimate conviction of a staff member under suspension, he/she shall be dismissed forthwith. He/she shall not be entitled to arrears of salary and/or other entitlements withheld while he/she was under suspension.

            DISCIPLINARY PROCEDURE

            Disciplinary procedure shall include query, reply, evaluation and action.

a)    Query

A query shall be issued to any staff member if an allegation of misconduct is made against him/her or has been indicted of any misconduct by an investigative panel; the query shall be answered within 24 hours from the date of receipt of the query by the staff affected. The time may be extended at certain times, depending on the nature of the query. Failure to answer such query within the stipulated time shall be deemed to mean admission of guilt.

 

 

b)    Action on Query

i.                     If satisfied with the explanation of the recipient there will be no further action on the query and the query would be withdrawn

ii.                 Where the misconduct is considered gross, the head of department shall refer the query with his recommendation to the Human Resource Manager for necessary action.

c)     Warning

Where an employee commits an act or makes any omission, which, in the opinion of the management, may not result in his dismissal or termination under the relevant provisions of the company’s conditions of service, such staff may be given letter of warning. After two warnings and commission of another offence employee will be issued with a 3^rd and final warning.

           

              DISCIPLINARY COMMITTEE

i)                  Disciplinary cases involving staff member(s) shall be referred to the Disciplinary Committee

ii)                 The constitution of the Disciplinary Committee shall be prerogative of the Executive Management Committee.

iii)             The above notwithstanding, the Managing Director shall be the Chairman of the disciplinary committee. In his absence, the Executive Director/EIC shall act as the chairman.

iv)              The Head of Human Resource Department shall be the Secretary of the disciplinary committee. In his absence, anyone sitting-in for him shall act as the secretary.

 

30. The above captured disciplinary procedure is very clear and unambiguous and therefore does not require any special aid to understand. The above provisions is binding on the Claimant and defendant as stated supra. The procedure highlighted above no doubt is to ensure fair hearing before dismissal of an employee. For a start, parties in this case by their pleadings and oral evidence are ad idem that Claimant was issued query alleging him of the specific allegation of discrepancies in Store Management which he responded to. Claimant in this case neither tendered a copy of the query issued to him nor his reply to same. However, the defendant tendered a copy of both the query and reply as Exhibit N6. A perusal shows that the query was issued by one Abdullahi Mainasara who is the Head of Audit and this fact was also admitted by DW1 under cross examination on 23^rd November, 2021. By the provisions of paragraph 14.3 of the Conditions of service, query may be issued or directed to be issued by the affected staff immediate Superior/Head of Unit/Head of Department or any member of Management Executive and if the explanation of the staff is not satisfactory the Human Resources shall further query the staff and all together with the affected staff’s reply prepare a submission to the disciplinary committee. It is clear from the above provisions that a query may be issued by virtue of the position of the issuing officer or by virtue of a directive given to the issuing officer by either the Head of Department or Head of Unit of the affected officer or any member of Management Executive. There is no evidence before this Court that Abdullahi Mainasara the Head of Audit was not authorized to issue the said query even though DW1 had stated under cross examination that Claimant’s department was Material Management Department. Claimant in this case vide his pleadings has not made the issuance of that query by Abdullahi Mainasara an issue or contend that he had no such directive to issue the said query not being his Head of Department. Besides the presumption of regularity is in favour of the query being an official act. That presumption has not been rebutted in this case. Therefore, I find that the issuance of the query is regular.

 

31. It is the contention of the defendant vide its statement of defence that Claimant was invited to appear before a disciplinary committee although he failed to appear the first time however, he eventually did at a subsequent sitting of the Committee before whom he was allowed to make representations and this is captured in the investigative Committee’s report. See paragraphs 23 to 25 of the statement of defence. In support of its assertions, it relied on Exhibit N7 together with its accompanying certificate of compliance and Exhibit N9. I am mindful of the fact that Claimant in this case did not file a reply to this specific new issue of fact as regards his appearance before the Committee which in my view Claimant ought to have responded to vide a reply to the Statement of defence. It is rudimentary law that where a statement of defence raises new issues of fact not arising from the statement of claim/facts, the Claimant has a duty to file a reply to avoid same being taken as admitted by him. See the following cases; Oderah Inv. Co Ltd v. Ecobank [2020]10 NWLR (Pt 1731)65@88, Paras C-H; Ansa v. Ntuk [2009] 9 NWLR (Pt 1147)557@590, Paras C-D and; Iwuoha v. NIPOST Ltd [2003]8 NWLR (Pt 822)308@340, Para H; 341, Paras H; 343, Paras D-E. Claimant in this case failed to file a reply to this facts averred by the defendant in its pleadings and I am of the humble view that he is deemed to have admitted the said facts. Besides, Exhibits N7 and N9 support the evidence of DW1 and DW2 to the effect that Claimant was invited and appeared before a committee before whom he made representations in his defence. Although, I find that Claimant under cross examination on the 9^th day of November, 2021 contended that he was neither invited nor was there any committee set up in respect of the allegations against him. It is well settled that documentary evidence is a hanger on which to assess oral evidence so where documentary evidence supports oral evidence, oral evidence becomes more credible. See the following cases; Chiduluo v. Attansey [2020] 6 NWLR (Pt 1719)102@124, Paras D-F; Odunlami v. Nigerian Army [2013]11 NWLR (Pt 1367)20@54, Paras D-E and; Odutola v. Mabogunje [2013]7 NWLR (Pt 1354)522@552, Paras C-D. In sync to the above is the notorious principle that a document tendered is the best proof of itself and oral evidence cannot be allowed to contradict clear contents of documentary evidence. See; Nammagi v. Akote [2021]3 NWLR (Pt 1762)170@193, Paras B-F and; Fakomiti v. Ilori & Anor [2018]LPELR-46367(CA)1@25, Para A. Thus, the evidence of DW1 and DW2 becomes more credible by virtue of Exhibits N7 and N9 which clearly show Claimant was invited and equally appeared before the Committee to make his representations in line with the Conditions of service and the evidence of Claimant under cross examination will not be allowed by this Court to discredit or contradict clear content of Exhibits N7 and N9 particularly when they were tendered without objection from the Claimant.

 

32. The provisions of clause 14.9 of the Conditions of service captured above is instructive and clear to the fact that the constitution of the Investigative or disciplinary Committee shall be the prerogative of the Executive Management though its membership should be as follows; the Managing Director shall be the Chairman of the disciplinary committee. In his absence, the Executive Director/EIC shall act as the Chairman and; the Head of Human Resource Department shall be the Secretary of the disciplinary committee, in his absence, anyone sitting-in for him shall act as the Secretary. Claimant in this case vide his pleadings never made the membership of the said Committee an issue or that its constitution breached the provisions of the Terms of contract. In fact, Claimant’s position under cross examination as stated supra is that no Committee was set up which evidence this Court has discountenanced for reasons given earlier. Howbeit, there is no evidence before this Court to show that Hadiza I. Bala who sat as the Chairlady of the Committee and whom Exhibit N14 shows to be the GM, HR& Mgt Services was not delegated to act as a proxy for either the Managing Director or Executive Director/EIC who should be Chairman. In fact, it was stated therein that it was the CEO/EIC that appointed the Committee. It is thus clear that the Chairman/Chairlady was delegated the authority by the CEO/EIC who should be the Chairman. There is equally no evidence in this case that the said Abdullahi Mainasara who acted as Secretary was not sitting in for the Head Human Resources Department as provided by the Condition of service. It is in view of the above reasons that I find that Claimant was invited and appeared before the investigative Committee and was allowed to make representation in his defence. Now, if the Claimant was given query which he responded to and was allowed to make his representation to the Committee, I do not find how his right to fair hearing was breached. I cannot also find how the provisions of the Condition of service was not complied with as alleged. Claimant was given query as provided for by the Conditions of service and he responded to same. Claimant was equally invited to appear before the Committee.

 

33. Let me say that I do not lose sight of the line of questioning of learned Claimant counsel while cross examining DW1 and DW2 that Claimant was not there when the other witnesses testified before the Investigation Committee thus, Claimant had no opportunity to cross examine the persons who testified and that Claimant did not appear before the Committee and the only day he was invited the Committee did not sit. Let me first reiterate that Claimant in his pleadings never joined issues with the defendant on the facts of invitation and appearance before the Investigative Committee because he did not file a reply to controvert the said averments made by the defendant in its statement of defence in which case he is deemed to have admitted those facts. Learned Counsel cannot therefore, rely on the evidence elicited under cross examination from DW1 and DW2 as regards the appearance or non appearance of Claimant or the opportunity to cross examine the witnesses called. I will explain why. The law is elementary that evidence elicited under cross examination goes to nothing when it is not based on the pleadings of the party cross examining. It is not true that the sky is the limit under cross examination. A party can only rely on evidence that is within the ambit of his pleadings and as such evidence outside the ambit of pleadings is treated as a non-issue. In other words, parties can only sing and dance within the perimeters of their pleadings and not outside of it, infact, their dancing steps are not allowed to go outside of the perimeters of their dancing floor.  He rises and falls within the ambit of his pleadings. In the case of Alh. Isiyaku Yakubu Ent Ltd v. Teru [2020]16 NWLR (Pt 1751)505@531, Paras A-F, the Court of Appeal held that the evidence elicited by a party under cross examination from the other party’s witness which is not based on facts pleaded by the said party in question cannot be relied upon by the party in question unless the pleadings are amended.  See; Adedayo v. Christine [2021]9 NWLR (Pt 1780) 148@183, Paras C-D and Nwokorobia v. Nwogu [2009]10 NWLR(Pt 1150)553@576, Paras D-F. In the instant case Claimant did not even reply to the statement of defence of the defendant that stated that he appeared before the Committee and was allowed to defend himself. Which means that Claimant has no pleaded facts on appearance or non-appearance before the Committee. The point I am unequivocally making here is that Claimant cannot extract evidence from DW1 and DW2 on the appearance of Claimant before the Committee when he has not joined issues with the defendant in its pleadings on the appearance or non-appearance before the Committee. Claimant by the state of pleadings is deemed to have admitted those facts that he appeared. Therefore, the evidence of DW1 and DW2 under cross examination as regards the appearance of Claimant before the Committee is disregarded.

 

34. In the same vein, it is the submission of learned Claimant counsel in his final written address that the provisions of the conditions of service was not complied with when one Abdullahi Mainasara and one Nuhu Ibrahim, who served as Secretary and co- Secretary of the Disciplinary Committee (being Audit staff of the Defendant) but were made members of the Disciplinary Committee contrary to the terms and conditions of service. He also submitted that Claimant was issued query by Abdullahi Mainasara who is the Head of Audit even when Claimant is not a member of the Audit Department. He equally submitted that Claimant was denied the opportunity of confronting these material witnesses who gave evidence against him as he was neither invited nor informed of the sittings of the Committee on those dates and thus lost the opportunity to cross-examine these witnesses. He also contended that the Claimant’s Head of Department did not refer to the query issued to the Claimant by the Head, Audit, with recommendations, to the Human Resources Department, for action. He continued that DW1 and DW2 admitted this much under cross-examination. Let me first say that I agree with learned counsel as submitted in his final written address that evidence elicited under cross examination is as potent as evidence elicited in evidence in chief. See Gaji & ors v. Paye [2003] LPELR-1300(SC)1@29, Para D. However, it should be noted that for such evidence to be of any use it must be one borne out of the pleadings of the parties as I have stated hereinbefore on issues joined by parties therein. Claimant as stated severally in this judgment only made a blanket averment that the conditions of service was not complied with and that his right to fair hearing was breached. He never pleaded in what manner the condition of service was not complied with or the manner in which his right to fair hearing was breached. It should be borne in mind that no amount of brilliance in a fine written address, can make up for lack of pleadings or evidence where there is none. See the following cases; Asalu & Ors v. Dosunmu[2019]LPELR-49113(CA)1@51, Para E ; Angadi & Ors v. PDP [2018]LPELR-44375(SC)1@51, Para B ;Oyeyemi v. Owoeye [2017]12 NWLR (Pt 1580)364@403, Paras E-F, 404, Paras A-B, 417, Paras D-E and; Agbaruka v. F.B.N Ltd [2010]3NWLR (Pt 1182)465@485, Para G. As a corollary to the above, the apex Court in the case of Passco Intl Ltd v. Unity Bank Plc [2021]7NWLR (Pt 1775)224@252, Paras C-D, F-G held that an issue of fact cannot be rightly raised in a counsel’s final address or brief as the case may be. The reason is that in a trial Court where pleadings are filed and exchanged, an issue or question of fact can only be raised upon the pleadings of the respective parties. See also the case of Buraimoh v. Bamgbose [1989] 3 NWLR (Pt.109) 352@365. The question or issue that Claimant was not allowed to cross examine witnesses in breach of his right to fair hearing and that the query issued to him by Abdullahi Mainasara the Head of a department to which Claimant did not belong are questions and issues of facts which can only be raised in the pleadings and not in counsel’s address. “It is self evident truth that the law does not hang as it were in the air, facts are the fountain -Head of the law”, this is the succinct and evergreen position of Nnaemeka Agu JSC (Of blessed memory) in the case of A.G. Kwara State v. Olawale [1993] 1 NWLR (Pt. 272) P.660. These issues being one of facts ought to have been pleaded by Claimant, it cannot be brought up for the first time in the final written address as learned counsel sought to do. Claimant never raised those specific issues of facts in his pleadings and the Court is bound by his pleadings, the Court cannot go outside the pleadings of parties or make a case for parties different from the ones they have made in their pleadings. See the cases of APC & Ors v. Aguele [2020] LPELR-51029(CA)1@71, Para D;Garba v. Garba & Ors[2017]LPELR-43154(CA)1@15,Para A and; Dada v. Dosunmu [2006]LPELR-909(SC)1@17,Paras C-C. This Court will not allow Counsel to go outside Claimant’s pleadings wherein issues have not been joined with the defendant as regards the appearance of Claimant before the Committee or make a case for him on specific issues of facts which he has not made in his pleadings. Therefore, I discountenance with learned Claimant counsel’s submission on those heads.

 

35. In the instant case, Claimant was suspended in line with the recommendation of the Human Resource in the Board Paper Exhibit N12. It is within the lawful province of an employer to issue query to its employee or to suspend an employee pending investigation of any alleged act of misconduct when necessary. See the following cases; Longe v. FBN Plc, supra; Akinyanju v. University of Ilorin [2005]7NWLR (Pt 923)87 and; Ayewa v. University of Jos [2000]6NWLR (Pt 659)142. The Court will not interfere with the powers of an employer to suspend or query his employee especially where the employment is that of a master servant as in this case. See the case of Union Bank v. Salaudeen [2017] LPELR-(CA)1@16, Para D; Imonikhe v. Unity Bank PLC [2011] 12 NWLR (PT.1262) 624 SC AT 649. In the same vein it is the right of the employer to suspend an employee where necessary with or without pay and same will not amount to a breach of right to fair hearing.  This is because an employer has the right to discipline any erring employee in the interest of the organization or institution. See also Adekunle v UBA Plc [2016] LPELR 41124 CA; Longe v. FBN Plc, supra; Akinyanju v. University of Ilorin, supra. Let it be noted that an employer can even suspend an employee without first giving him an opportunity to defend himself. See the case of Yusuf v. VON Ltd [1996]7NWLR (Pt 463)746. It is in the light of this position of the law that I find that the suspension of Claimant before the Committee sat will not amount to a denial of his right to fair hearing.

 

36. I have perused Exhibit N9 which ordinarily speaks for itself and it is crystal clear that Claimant was not invited on the days other persons who were involved testified as contended by Umahi Esq, learned Claimant’s counsel. Claimant only appeared before the said Committee on October 22, 2019. I have earlier stated that Claimant in his pleadings never pleaded the specific manner his right to fair hearing was breached or the manner in which the Condition of service was not complied with. Assuming the denial of right to cross examine witnesses that were called was even clearly pleaded as the reason why Claimant’s right to fair hearing was breached, can same be said to be a breach of right to fair hearing? I will now proceed to answer this question. In the case of Arobieke v. N.E.L.M.C [2018]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 this case, in its enquiries, may not necessarily strictly adhere to such rules of natural justice as exists in law Court. The Supreme Court in the case of Baba v. N.C.A.T.C [1991]5NWLR (Pt 192)388@ pages 227-428, Paras H-E, per Bello CJN held inter alia that 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. See also the case of NEPA v. Arobieke [2006]7NWLR (Pt 979)2452275, Paras D-H, 277, Paras A-D. It is clear from these authorities that failure to allow an employee to cross examine a person who testified before an investigative panel is not fatal except where it was specifically provided for in the contract or conditions of employment. The reason for the above positions is not far-fetched and is because ordinarily, the requirement of fair hearing in the dismissal of an employee whose employment is ordinary master servant does not insist on oral hearing or testimonies so long as the employee has the opportunity to explain himself whether by way of query or otherwise, he would be held to have been given fair hearing.  See the following cases; Imonikhe v. Unity Bank Plc supra; Odibo v. First Bank [2018] LPELR- 46628CA; Isong Udofia v. Industrial Training Governing Council [2001]4 NWLR (Pt 7033)281; New Nigeria Bank Ltd v. Oniovosa [1995]9 NWLR (Pt 419)327. Assuming but without conceding that Claimant was not even invited by the said Committee to its sittings, there is nothing in the provisions of the Conditions of service that states that the sitting of the Committee must be by physical appearance or oral hearing. Besides, the Court in the case of NEPA v. Arobieke, supra was clear when it held that an administrative Committee may consider documents and take witnesses behind an employee and such will not amount to a denial of fair hearing.

 

37. In my respectful view, Claimant had ample opportunities to defend the allegations against him by the issuance of query and subsequent appearance before the Committee as shown in Exhibit N9. More so, where the Condition of Service never stated that there must be oral testimonies or cross examination. I therefore do not believe that Claimant’s right to fair hearing has been breached. It is hornbook law that once the Court comes to the conclusion that an employee was given ample opportunity to defend himself on the allegation, such employee cannot complain of not being given fair hearing. See the following cases; Mike Eze v. Spring Bank Plc (2011) 18 NWLR (pt.1278) 113. Benedict Hirki Joseph v. First Inland Bank Nig Plc [2009] LPELR-8854(CA); Momoh v. CBN [2007]14NWLR (Pt 1055)508@527 and; Gukas v. Jos International Breweries Ltd [1991]6 NWLR (Pt 199)614.

 

38. I am not unmindful of the arguments between parties in the final written address of Claimant and the Reply on points of law to same as to the applicability of the International Labour Organization (ILO) Convention No 158 of 1982 in this case. According to learned counsel on behalf of Claimant vide paragraph 4.04 of the final written address that the Court is imbued with the jurisdiction to apply the provisions of Section (sic) Article 7 of the ILO Convention No 158 on fair hearing in line with international best practices as same is binding on the signatories without the need of individual domestication. In the same vein, learned counsel argued in 4.51 that ILO Convention No 158 which Nigeria is signatory to and its Recommendation (Recommendation 66) provides that an employer must justify the reason for termination. According to learned counsel on behalf of the defendant in paragraph 1.04 of his Reply on points of law, by Section 12 of the Constitution, no treaty shall have a force of law unless same has been domesticated. It is a firm position of the law that by virtue of Section 12 (1) of the Constitution only a treaty domesticated in Nigeria can have the force of law. However, with regards to labour jurisprudence in this clime, this is no longer the law in view of the provisions of Section 254C(2) of the Constitution which has imbued this Court with jurisdiction notwithstanding the provisions of Section 12 to apply any International Treaty or Convention on Labour which has been ratified by Nigeria even though not domesticated provided the party applying for its application makes its application a focal point in his pleadings to invoke the jurisdiction of the Court to apply same. See Aero Contractors Co. of Nigeria Ltd v. NAAPE & Ors [2014] 42 NLLR (Pt. 133) 664 at 715-718,C-H and Enugu State Government v. Odo & Ors Unreported Suit No. NICN/EN/01/2022 delivered March 08, 2022], p. 17; wherein, the NIC laid to rest the issue of domestication before international labour instruments can have effect in Nigeria, by holding that, Section 254C(1)(f)&(2) of the Constitution implies, both automatic domestication of the international labour instruments referenced and, the simultaneous subjugation of S. 12(1) of the Constitution, by subjugating words therein used. In effect, the provisions of Section 254C(2) has impugned on the provisions of Section 12 of the Constitution as it pertains to application of any ILO Conventions which has been ratified even though not domesticated. Thus, I am not in agreement with the position of Okotie Eboh Esq, learned counsel for the defendant that only a Convention domesticated by Nigeria can be applied by this Court. It is important to state that by Section 7(6) of NICA 2006, this Court in exercising its jurisdiction may have good regard to international best practice in labour or industrial relations and what amounts to good or international best practice shall be a question of fact. See also Order 14A, Rules 1(1)(a)&(b) and (2) of the NICN Civil Procedure  Rules 2017 and the case of   Oak Pensions Ltd & Ors v. Olayinka Supra. Wherein the Court of Appeal emphatically held that:

                     In addition, as provided for in Section 7(6) of the NICA, the issue of    good or international best practice in labour and industrial relations is a question of fact to be pleaded and proved satisfactorily by the Claimant before the trial Court could judiciously have regard to it in the determination of the case presented by him  

          See also Ola-Peters v. Nigeria LNG Ltd Unreported Suit No. NICN/YEN/96/2015 delivered Oct. 29, 2021], p. 22, para. 7.9. The Claimant in this case did not plead any fact relating to his right under any ILO Convention or any international best practice in his statement of facts. It is equally paramount for the Court to state that the ILO Convention No.158 on Termination of Employment has not been ratified by Nigeria and as such this Court cannot apply it in this case. Besides, the said ILO Convention is on Termination of employment and not summary dismissal which is what this Court is dealing with in this case. As such, it is clear that ILO Convention 158 which learned counsel on behalf of Claimant relied on in this case is not applicable in this case.

39. In view of all reasoned supra, I find that Claimant’s right to fair hearing has not been proven to have been breached. Accordingly, I resolve question one against Claimant.

 

40. Let me also say that I bear in mind the submission of learned defence counsel in paragraph 2.26 of her final written address that failure of the Claimant to respond to Exhibit N16 which asserted that the Claimant was given ample opportunity to defend himself and accorded time to furnish further evidence to exonerate himself is fatal to the case of Claimant. Let me say that it is not all failures to respond to a letter that will be fatal. The failure will only be fatal where the letter is a business letter. In the case of Alh. Garba Abubakar Bagobiri v. Unity Bank Plc [2016] LPELR- 41161 (CA) the Court held that it is trite law that where a party fails to respond to a business letter which by the nature of its contents requires a response or a refutal of some sort, the party will be deemed to have admitted the contents of the letter. In the case of Trade Bank Plc v. Chanmi [2003] 13 NWLR (Pt. 836)158@ 537 the Court of Appeal adopted the position expressed in the English case of Wiedemaun v. Walpole [1891] 2 QB that before a refusal or failure to reply a business letter can be the basis for an inference of admission, four (4) conditions must be satisfied, which are: (i) It must be a business communication ; (ii) It must be written in the ordinary course of business; (iii) Written by a business party to another, and; (iv) Must contain an allegation or imputation of a promise or an agreement by the addressee to do or perform a certain act or obligation, thus necessitating a reply or response. From the above conditions, I do not think Exhibit N16 will qualify as a business letter which would ordinarily necessitate a reply and failure to respond to it would be deemed an admission of the contents. Therefore, I discountenance with the submission of learned defence counsel in this wise.

 

41. Now, the law is long settled that while an employer is not obliged to give reason for the termination of employment or dismissal of an employee however, where an employer gives reason for termination of an employment, he must justify the reason to the satisfaction of the Court. See the following cases; I.H.A.B.U.H.M.B. v. Anyip [2013]12NWLR (Pt 1260)1@19, Paras E-F and SPDC Ltd v. Olanrewaju [2008]18NWLR (Pt 1118)1@19-20, Paras A-B. The defendant in this case vide the letter of summary dismissal Exhibit N (the same as Exhibit A4) stated Claimant’s dismissal was for gross misconduct and breach of the conditions of service. As reasoned supra, there is no specific list of acts that will amount to gross misconduct but any act which the authority views as an aggravated form of misconduct as defined would be termed as gross misconduct. Claimant herein was alleged of mismanagement of newsprints due to discrepancies noticed by the defendant and which led to his suspension and subsequent dismissal. The defendant vide paragraphs 11-18 of the statement of defence led facts in relation to the allegation against Claimant. The defendants equally relied on Exhibits N, N1, N2, N3, N5, N6 and N9.

 

42. It is clear from Exhibit N which is an audit report of newsprint supply and usage in the Abuja Store where Claimant is the Store Officer that some certain discrepancies were noticed. In Exhibit N6 id est the query issued to the Claimant, Claimant was alleged to have on the 31^st day of January, 2017, tampered with a supply of two containers from Mardi Maritime Services Ltd totaling 94 reels of newsprints were posted into soft smart stores record but there was a shortage of two reels even though waybill documentation and goods received shows 94 reels. Therein it was equally stated that on March 1^st 2017, Claimant inflated the newsprint balance by posting transfer of 21 reels from the Lagos Store in Abuja store when the EPR system has clearly taken care of the necessary entries from the originating stores to the receiving store. Claimant was equally alleged to have on the 8^th day of May, 2018 posted a purported supply of 32 reels of newsprints supplied by Joy Nigeria Enterprise without evidence of supply whether by way of waybill, security records of receipt of goods confirming such supply. Claimant was also alleged to have completely omitted posting of 48 reels of newsprint supply by Joy Nigeria Enterprises despite records confirming the supply. It was equally stated in the query that a shortage of 4 reels were also observed from supply of 245 reels received on October 10, 2017 from Price and Pierce because only 241 reels were captured in Claimant’s soft smart posting. In the same vein, supply of 61 reels of newsprints were omitted from Claimant’s soft smart postings even though records of receipt of supply was backed by necessary documentation. It was equally alleged that a Local Purchase Order made between 5^th -20^th May from Joy Nigeria Enterprises were also omitted from Claimant’s soft-smart records even though there were documentary evidence confirming the receipt of the reels. It is clear from a perusal of Exhibits N1, N2, N3 and N5 that the allegation against Claimant in the query was with reasonable ground. However, a further perusal of Claimant’s answer in the query which is part of Exhibit N6 shows Claimant explained the reason for the discrepancies. In fact, the Board paper of the defendant that is Exhibit N12 lends credence to this fact because therein it was stated in items 1, 2, 3, 4, 5 that Claimant in his response to query was able to provide explanations for the said discrepancies noticed in the query though the explanations were still seen as insufficient. However, it is clear from the observations in Exhibit N12 that the Human Resource observed that there was still need to prove the allegations against Claimant beyond reasonable doubt so as to establish the offence of pilferage which the Audit Department is trying to establish against him. Exhibit N9 which contains the recommendations of the HR recommended that Claimant be suspended and a three man Committee be set up to commence and complete all investigations within 2 weeks from 2^nd September. It is thus clear that the Human Resource seemed not to have been satisfied by the explanations given by Claimant, hence the need for the recommendation to the Board that a three man committee be set up. This is because if it was satisfied by the explanations given, there would have been no need for recommending that a Committee be further set up to investigate the allegations. Exhibit N9 which is the report of the Committee so set up clearly shows that the Committee invited all staff involved in the alleged illegal activities and gave them opportunity to explain and defend themselves and also assist the Committee with vital information. It is clear from the said Exhibit that the mandate of the Committee was not only as regards the allegations against Claimant but also to investigate any malpractices going on in the Abuja store of the defendant. It is equally clear from Exhibit N9 that claimant appeared before the Committee and so also other persons. It is clear from the said Exhibit N9 that certain persons indicted Claimant especially one Sani Yaro, John Ogar and Sani Mohammed.

 

43. It is worthy of note that Claimant in this case did not lead any documentary evidence contradicting the contents of Exhibits N, N1, N2, N3 and N5 as regard the missing or unaccounted newsprints as alleged in the pleadings of defendant or in his query. Claimant in this case did not tender his response to query. Claimant throughout this case did not join issues with the defendant as regard the veracity of the report of postings made by him as generated from soft smart as contained in Exhibit N3. More so, the evidence of DW1 under cross examination was not shaken as to the veracity of Exhibit N3 that is the report of the Audit. In fact, DW1 stated under cross examination on the 23^rd day of November that the report of postings on soft smart Exhibit N3 which he had generated from his computer was all imputed by Claimant and the Audit had access to the system but cannot tamper with the report which was verified by them. Thus, the evidence of DW1 on the veracity of Exhibit N3 which is the report generated from the soft smart showing details of posting within the disputed period stands unshaken. I so hold.

 

44. The defendant gave particulars of the unreconciled discrepancies in the second table of paragraph 13 of the statement of defence wherein it stated that Claimant under-posted the 94 reels received from Mardi Maritime Services by two reels when he posted only 92 reels. Although, Claimant did not file a reply to the statement of defence as earlier stated in this case, I find that Claimant in his answer to query in Exhibit N6 stated that the 94 reels of news prints received in two containers of 48 and 46 prints respectively was captured in the soft smart. A perusal of Exhibit N1 which is a bulk of way bills shows that truly two batches of reels of newsprints containing 46 and 48 reels making a total of 94 reels were received. However, the report generated from+ soft smart which as earlier stated has not been impeached by Claimant in this case in Exhibit N3 shows that truly on the 31^st January, 2017 only 92 reels were posted by Claimant as against the 94 reels delivered and received contrary to his assertion in his reply to query that he posted 94 reels on the soft smart. Thus, the under-posting has been proven against him. It was equally stated in paragraph 13 of the statement of defence that part of the unreconciled discrepancies is 21 reels which was also captured in Claimant’s query. Claimant in his response to query in Exhibit N6 had stated that he posted as receipt instead of transfers because there was a problem with the soft smart and the time and verbal complaint was made to the soft smart administrator. It was equally captured in paragraph 13 of the statement of defence that 51reels received on 15/5/17 through Price and Perce Shipping were duplicated as there was no source document serving as basis for posting on soft smart. A perusal of Exhibit N3 shows that truly on the 15^th day of May 2017 Claimant posted 51 reels received from Pierce and Price. It is equally worthy of note that Claimant was also alleged of not posting 48 reels received from Joy Nigeria on 17^th July, 2017 in the soft smart which Claimant in his response to query in Exhibit N6 admitted that 48 reels were received and he posted same on the soft smart. I have perused Exhibit N3 and I find that what was posted by Claimant on the 17^th July, 2017 is 8 reels as against the 48 he stated that he posted which means that Claimant under-posted the reels received by 40 reels. In the same vein, the defendant alleged in paragraph 13 of the statement of defence that Claimant under-posted 245 reels received from Pierce and Price on 1/9/2017 which was also captured in his query. Claimant in his response to query admitted that truly 245 reels were received from Pierce and Price and same was posted while relying on an attached scanned copies stores receipt. It is clear from Exhibit N3 that what Claimant posted was 241 reels as against 245 reels received. Claimant was equally alleged in paragraph 13 of the statement of defence to have omitted posting 61 reels received from Pierce and Price on 1^st of September, 2017. However, I find that Claimant was never queried on this as it is not contained in his query. What is contained in his query in item 7 therein is omission of 61 reels of newsprints received from Rock Marines Freight Forwarders Ltd on 23^rd October, 2017 and not Pierce and Price and allegation he responded to. Rock Marines Freight Forwarders and Pierce and Price Shipping (as contained in paragraph 13 of the statement of defence) are different. Thus, one cannot say that Claimant was queried for omitting 61 reels of news prints received from Pierce and Price. The defendant cannot query Claimant for omitting 61 reels of newsprints received from Rock Marines Freight Forwarders Ltd on 23^rd October, 2017 and be alleging in this Court in paragraph 13 of the statement of defence that Claimant omitted posting 61 reels received from Pierce and Price on 1/9/17.  In fact, what is before this Court as part of the bulk waybill document shows 61 reels of newsprints delivered by Rock marines Freight Forwarders Ltd. There is no waybill receipt showing any delivery of 61 reels by Pierce and Price. Thus, that allegation as contained in paragraph 13 of the statement of defence is not backed by either the query or waybill document or any other documentary evidence in this case and as such same is discountenanced. It was also alleged vide paragraph 13 of the statement of defence that Claimant omitted posting of 33 reels received from Joy Nigeria Enterprises Ltd on the soft smart.

 

45. Be that as it may, I find from Exhibit N6, Claimant’s response to query that Claimant alluded to some documents as appendixes. DW1 under cross examination on the 23^rd of November, 2021 stated that the originals of the said documents alluded and attached by Claimant to his response to the query are not in possession of the audit department. Claimant in this case did not tender any such appendix which would be documentary evidence in support of his assertion that he was not liable of what he was alleged of in the query.  Assuming the documents are even in possession of the defendant and he does not have any in his possession, Claimant could have subpoena the defendant to produce those documents which should back up his case or alternatively give the defendant the notice to produce those documents which he believes to be in possession of the defendant. If Claimant had tendered these documents alluded to in his response to query, this Court would have been able to take benefit of the said documents and come to a conclusion whether those missing newsprints were actually mismanaged or not as alleged in the query. It is the law that the Court cannot speculate on the contents of a documents not before it. See; Takpa v. Sheshi & Anor [2019]LPELR-48484(CA)1@27-30, Para E; Alam Oparaji & Ors v. Nwosu Ohanu & Ors [1999] 9 NWLR (Pt 618) 290@307, Paras E-E. This Court in the absence of any oral or documentary evidence controverting the contents of Exhibits N, N1, N2, N4 and N5 showing that those alleged unreconciled newsprints were actually recorded and accounted for, this Court is bound to believe the contents of those Exhibits.

 

46. Beyond the allegations made in the query which Claimant responded to, it is clear from Exhibit N9 that Claimant was indicted by the testimonies of other staff to the effect that Claimant sold the defendant’s printing inks. The defendant in paragraphs 17 and 19 of the statement of defence made averments on the above facts that Claimant apart from the allegations made against him in the query in the course of investigation was indicted for selling of the defendant’s ink and newsprints. Claimant never saw the need to join issues with the defendant on these averments which would mean that he is not disputing same. It is only logical for one to say that the defendant in view of Exhibit N9 has been able to prove that apart from the allegation of mismanagement of the store room, Claimant was equally found liable of other acts like sale of printing ink and news reels. More, so when Claimant has not joined issues with the defendant on these facts by controverting it. In view of all reasoning above, I find that defendant has been able to establish a major part of the allegations made against Claimant. The import of which is that the defendant has been able to justify to a very large extent the reason given for dismissal of Claimant.

 

47. Noteworthy, is the contention of learned Claimant counsel in his final written address that the failure of the defendant to issue Claimant further query as recommended in Exhibit N12 is a denial of fair hearing. Exhibit N9 is no doubt a report of the Human Resources Department submitted to the Board of the defendant. It is part of its observations that Claimant be given another query until issues are thrashed out. I must say that Exhibit N12 did not give a directive or recommendation that Claimant should be given the said second query, it merely observed that there was need to do so as to thrash out the whole issue. It is within the prerogative of the defendant to decide to follow that observation or not. In fact, if the HR really felt that there should have been a second query, it would have been part of its recommendations in Exhibit N12. Instead, it recommended the suspension of Claimant and constitution of a Committee for further investigation of the allegations against Claimant. This points to one singular fact that the HR felt that a second query was not needed but an Investigative Committee. It is in the light of all reasoned supra that I find that the defendant has justified the reason given for Claimant’s dismissal from employment. 

 

48. Assuming Claimant was even dismissed from employment in breach of the right to fair hearing and condition of service and the defendant is not equally able to prove or justify the reason for dismissal which is not conceded, can the position of learned counsel on behalf of Claimant that the dismissal be declared unlawful and null and void hold water? It is worthy of note that the Courts have held that even where the procedure adopted in the dismissal of an employee in a master-servant employment was improper, the dismissal or termination notwithstanding stands albeit wrongful. It is not a ground to declare it null and void. In the case of  Ibama v. SP.D.C. (Nig.) Ltd. [2005] 17 NWLR (Pt.945)364 the Court held: “Except in employment governed by Statute wherein the procedure for employment and discipline (including dismissal) of an employee are clearly spelt out, any other employment outside the Statute is governed by the terms under which the parties agreed to master and servant... In other cases governed only by agreement of the parties and not by statute, removal by way of termination of appointment or dismissal will be in the form agreed to; any other form connotes only wrongful termination or dismissal but not to declare such dismissal null and void…” (Emphasis mine). See also the case of Katto v. CBN, supra; [1999]LPELR-1677(SC)1@30-31, Para E. In the same vein, it is well established that in a master- servant relationship, a master reserves the right to terminate the employment for good or bad reasons or no reason at all. See the following cases; FBN Plc v. Bam [2010] LPELR-4160 (CA)1@19, Para B; Layade v. Panalpina World Trans. Nig. Ltd [1996]6 NWLR 9Pt 456)544@555, Paras E-F and; John Holt Ventures Ltd v. Oputa [1996]9 NWLR (Pt 470)101@117, Para C. As such, even if the reason is bad or unjustifiable, it does not affect the dismissal. The dismissal still stands and cannot be declared null and void as the Court has no jurisdiction to impose a willing employee on an unwilling employer in a master servant relationship as in this instant case. Besides the defendant has been able to justify the dismissal of Claimant on the preponderance of evidence in this case. In view of all reasoned supra, I hold that Claimant’s relief 1 in the General Form of Complaint fails.

 

49. I will take reliefs 2 and 3 together. Claimant in relief 2 in the General Form of Compliant sought a declaration that the Defendant owes him monthly salary of N147,000 from September, 2019 till Judgment is delivered while in relief 3 he seeks an order for the payment of the said sum. In effect as rightly submitted by Okotie Eboh learned defence counsel, that Claimant is seeking for payment of his salaries from the period of suspension till judgment is delivered. I have earlier in this judgment held that the defendant had the right to suspend Claimant and that his suspension was not a breach of his right to fair hearing.  It is now settled that an employer’s right to suspend without pay is dependent on the contract between parties and as such where there is no contractual right to suspend without pay an employee is entitled to his salaries and other fringe benefits as suspension is not s diminution of rights and benefits. See the following cases; Foluso v. Enterprise Bank Ltd [2019] LPELR-48030(CA)1@35-39, Para D and Bamisile v. NJC & Ors [2012]LPELR-8381(SC)1@43-44, Para C. By the provisions of paragraph 14.5(c) of Exhibit A3 which is the contractual document between parties, an employee of the defendant may be suspended without pay. It is thus clear that the defendant had the power to suspend Claimant without pay as it did and this Court cannot question such powers derived from the contract that binds the duo. Thus, Claimant cannot claim salaries for the period covering his suspension. In the same vein, I have held that the dismissal of Claimant was not in breach of his right to fair hearing or the conditions of service. I have equally held earlier that this Court has no jurisdiction to impose a willing employee on an unwilling employer even if the dismissal is found wrongful. All these clearly point to the fact that Claimant cannot claim for salaries for payment of wages from the period of dismissal till the date of judgment. Besides, a person is not entitled to salaries for work not done. See the cases of CCB Nig Ltd v. Nwankwo [1993]4 NWLR (Pt 286)159; Balogun v. Union Bank [2016] LPELR-41442(CA)1@21, Para D and; Olatubosun v. NISER, supra. Claimant since the dismissal has not worked for the defendant and cannot thus claim for salaries from his summary dismissal till judgement as he did. In view of all reasoned supra, I find that reliefs 2 and 3 fail.

 

50.  I will also take reliefs 4 and 5 together. Claimant vide relief 4 claims for general damages. 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 [2017]LPELR-43819 (CA)1@20, Para C. Let me also say that general damages can be granted in cases where breach of contract is established. However, Claimant in this case has not been able to establish satisfactorily any wrong or breach of the conditions of employment. I therefore do not think he is entitled to general damages. Claimant in relief 5 claims for 21% post judgment interest. There is no doubt that these reliefs are dependent on the success on the main reliefs 1-2 that is they are ancillary reliefs. The law has become ensconced that where the main claims fail, the ancillary reliefs which are dependent on the main reliefs must also fail. See the following cases; Fafunwa v. Bellview Travels Ltd [2013] LPELR-20800 (CA)1@18-19, Para F and; Nsugbe v. Nkobi [2012] LPELR-24481(CA)1@30-31, Para E. It is in the light of the above that I find that reliefs 4 and 5 equally fail.

 

51. I cannot end this judgment without addressing certain worrisome trend in the final written address of learned Claimant counsel. In paragraph 4.47 of the final written address, counsel relied on an unreported decision of my learned brother Kado J thus; Bello Ibrahim v. Eco Bank Plc which judgment was said to have been delivered 17/12/2009. It is the duty of counsel to furnish this Court with certified true copy of the said judgment which is unreported. See; Ugo-Ngadi v. FRN [2018] LPELR-43903(SC)1@22, Para D. More worrisome is the fact that Umahi Esq, learned Claimant counsel in paragraph 4.32 of the final written address referred to learned jurist Oguntade JSC as “OGUNTADE, JSC (of blessed memory)” I do not know where Claimant counsel got the hint that the great jurist is deceased. May I point out that the jurist is still alive and kicking at 82. The above is a great slip on the part of learned Claimant counsel. It is the duty of counsel to conduct proper research when quoting from dictums of learned Senior Jurists living or dead. It is unacceptable for learned counsel to refer to a living jurist as one of blessed memory indicating that he is dead. Death is a necessary end for everyone but it is wrong to refer to a living person as dead.  Okoti Eboh Esq, learned counsel on behalf of the defendant in her final written address cited a case as EKENOLA V. CBN [2013]15 NWLR (PT 1377)224. Let me say that the correct citation of that case in the said law report is Ekunola v. CBN [2013]15 NWLR (Pt 1377)224. It is the duty of learned counsel to ensure accuracy in the citation of cases so as not to send the Court on a wild goose chase.

 

52. In sum, for the avoidance of doubt and the reasons earlier given, I find that Claimant’s action fails in its entirety. The law is clear that the proper order to be made where a Claimant fails to prove his case is an order of dismissal. Thus, Claimant’s case is hereby dismissed.

 

53. No order as to costs.

Judgment is accordingly entered.

 

                                                                                    Hon. Justice Oyebiola Oyewumi

                                                                                                  Presiding Judge.