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<p class="MsoNoSpacing"><b><u><span style="font-family:"Comic Sans MS"">Representation</span></u></b><b><span style="font-family:"Comic Sans MS"">:<o:p></o:p></span></b></p> <p class="MsoNoSpacing"><span style="font-size:10.0pt;font-family:"Comic Sans MS"">Emeka Nwagu, with him, V. N. Onyeonoro (Mrs.), C.C. Uchechukwu (Mrs.), Chief R. Nzeribe and R. A. Mba, for the Claimant<o:p></o:p></span></p> <p class="MsoNoSpacing"><span style="font-size:10.0pt;font-family:"Comic Sans MS"">T. Sipoto-Pepple for the Defendant<o:p></o:p></span></p> <p class="MsoNoSpacing"><span style="font-size:12.0pt;font-family:"Comic Sans MS""> </span></p> <p class="MsoNoSpacing" align="center" style="text-align:center"><b><u><span style="font-size:12.0pt; font-family:"Comic Sans MS"">JUDGMENT<o:p></o:p></span></u></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">The Claimant commenced this suit by way of a Complaint on 12<sup>th</sup> December 2013 and claimed against the Defendant as follows:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l5 level1 lfo1"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-bidi-language:HE">1.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-bidi-language:HE">A Declaration that the purported dismissal of the employment of the Claimant by the Defendant as contained in the letter of 19<sup>th </sup>September 2013 is null and void, wrongful, most irregular and is of no effect.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l5 level1 lfo1"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-bidi-language:HE">2.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-bidi-language:HE">An Order nullifying and setting aside the purported dismissal as conveyed in the said letter of 19<sup>th</sup> September, 2013. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l5 level1 lfo1"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-bidi-language:HE">3.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-bidi-language:HE">ALTERNATIVELY: An order directing the Defendant to pay up all unpaid salaries and allowances of the Claimant till the final determination of this case. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l5 level1 lfo1"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-bidi-language:HE">4.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-bidi-language:HE">Twenty Million Naira as general damages for wrongful termination of the Claimant's employment.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">The complaint was filed with the Statement of Facts, Claimant’s List of Witnesses, Sworn Deposition of Claimant’s witness, Claimant’s List of Documents and Copies of Documents to be relied on. The Defendant on 7th April 2014 vide a motion for extension of time, granted by the court on the same day, filed a Statement of Defence and other accompanying processes. The Claimant filed a Reply to the statement of defence on 14<sup>th</sup> April 2014. Hearing commenced on 19<sup>th</sup> February 2015. The Claimant testified as CW1 and tendered the following documents as exhibits:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l0 level1 lfo2"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-bidi-language:HE">1.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:110%;mso-bidi-language:HE">Exhibit A</span><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">- Letter of dismissal dated 19<sup>th</sup> September, 2013<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l0 level1 lfo2"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-font-width:110%;mso-bidi-language: HE">2.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:110%;mso-bidi-language:HE">Exhibit B-</span><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE"> Contract of Employment dated 1/9/2009<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l0 level1 lfo2"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-font-width:110%;mso-bidi-language: HE">3.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:110%;mso-bidi-language:HE">Exhibit C</span><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">-The Claimant's Employment Confirmation Letter dated 10/11/2009<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l0 level1 lfo2"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-bidi-language:HE">4.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:110%;mso-bidi-language:HE">Exhibit D</span><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">-Claimant's Letter of Deployment dated 16/8/2012 <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l0 level1 lfo2"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-bidi-language:HE">5.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:110%;mso-bidi-language:HE">Exhibit E- </span><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">The Defendant's Ethics and Compliance Code<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">Martins Ojugbeli and Akindele Abe testified for the Defendant as DW1 as DW2 respectively. The Defendant in its defence, tendered the following documents in evidence through its witnesses: <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l6 level1 lfo3"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-bidi-language:HE">1.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:110%;mso-bidi-language:HE">Exhibit F</span><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">- The Defendant's emails of 10<sup>th</sup> and 11<sup>th</sup> April, 2013<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l6 level1 lfo3"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-bidi-language:HE">2.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:110%;mso-bidi-language:HE">Exhibit G</span><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">- The Defendant's Daily Sales Sheet File, <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l6 level1 lfo3"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-font-width:110%;mso-bidi-language: HE">3.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:110%;mso-bidi-language:HE">Exhibit H-</span><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE"> Contract of Employment between the parties made on 11/9/2009<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l6 level1 lfo3"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-font-width:110%;mso-bidi-language: HE">4.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:110%;mso-bidi-language:HE">Exhibit J- </span><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">Acceptance of the said Terms by Claimant on 16<sup>th</sup> September, 2012<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l6 level1 lfo3"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-font-width:110%;mso-bidi-language: HE">5.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:110%;mso-bidi-language:HE">Exhibit K</span><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">- The Defendant's Human Resources Policy Manual<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l6 level1 lfo3"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-font-width:110%;mso-bidi-language: HE">6.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:110%;mso-bidi-language:HE">Exhibit L</span><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">- The Defendant's Ethics and Compliance Code<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l6 level1 lfo3"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-font-width:110%;mso-bidi-language: HE">7.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:110%;mso-bidi-language:HE">Exhibit M- </span><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">The Defendant's email of 3<sup>rd</sup> September, 2013<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">Hearing ended on 26/5/2016, and both parties were ordered to file their final written addresses in accordance with the rules of court. The Defendants’ counsel filed his final written address on 15/7/2016 vide a motion for extension of time. Counsel for the Claimant filed his address on 28/7/2016. These were duly regularized and parties’ adopted their final written addresses on 25/10/2016. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">In the defendant’s counsel final address, four issues were formulated for determination, two preliminary and two main issues to wit:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-weight:bold">PRELIMINARY ISSUES FOR DETERMINATION: <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.75in;text-align:justify;text-indent: -.5in;mso-list:l1 level1 lfo4"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-weight: bold">i.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-bidi-language:HE;mso-bidi-font-weight:bold">Whether the failure of the Claimant to file a Reply to the Defendant's Statement of Defence does not amount to an admission of the material allegations contained in the Defendant's Statement of Defence, which relieves the Defendant of the burden of proving the alleged facts at the trial of this suit.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.75in;text-align:justify;text-indent: -.5in;mso-list:l1 level1 lfo4"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-weight: bold">ii.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-bidi-language:HE;mso-bidi-font-weight:bold">Whether a Claimant, whose employment is or was not statutorily protected, is entitled to an Order nullifying his or her termination or dismissal. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">MAIN ISSUES FOR DETERMINATION:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width:105%; mso-bidi-language:HE">1. Whether, having regard to the pleadings filed by the Claimant in this suit and the evidence led by the Claimant at the trial of this suit, the Claimant has established that his dismissal by the Defendant was wrongful.</span><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-bidi-language:HE;mso-bidi-font-weight:bold"><o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width:105%; mso-bidi-language:HE">2. Assuming without conceding that the Claimant's dismissal by the Defendant was wrongful, whether the Claimant is entitled to the reliefs claimed in this suit.</span><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"><o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">On the first preliminary issue, it was submitted by the Defendant’s counsel that the failure of the Claimant to file a Reply to the Defendant’s Statement of Defence amounts to an admission of the material allegations contained in the Defendant's Statement of Defence and relieves the Defendant of the burden of proving the alleged facts at the trial of this suit. Counsel submitted further that, where a Defendant has made an allegation of a fact in a Statement of Defence, a Claimant or Plaintiff has a duty to controvert such allegations by filing a Reply to the Statement of Defence and that failure to file such a Reply amounts to an admission of those allegations contained in the Statement of Defence and that where a fact pleaded is not controverted, such fact is deemed admitted and no further proof of such fact will be required during the trial of the suit. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">On the second preliminary issue counsel submitted that a Claimant, whose employment is or was not statutorily protected, is not entitled to an order of court nullifying his or her termination or dismissal. It is the argument of counsel that under Nigerian law, there are broadly two types of contracts of employment, simple contractual relationship of master servant under common law; and contract of employment with statutory flavour. See the case of <b>REGISTERED TRUSTEES OF PLANNED PARENTHOOD FEDERATION OF NIGERIA vs. SHOGBOLA (2004) 11 N.W.L.R. (Pt 883) 1 at 15 - 16, paras. F - A</b>. The court’s attention was drawn to the case of <b>NIGERIA AIRWAYS vs. OKUTUBO (2002) 15 NWLR (Pt. 790) 376 at 397, paras. A - C</b>, where the Court of Appeal held that, for a contract of employment to have statutory flavour, the contract has to have the engagement and disengagement of its employees regulated by statute. Counsel argued further that an employee whose contract of employment is not with statutory backing but is governed by the agreement of the parties may be removed by way of termination of appointment or dismissal in the form agreed to by the parties to the contract of employment. Also, counsel asserted that any termination or dismissal in any other form other than the form agreed to by the parties is merely wrongful but not null and void. In support of his assertion, counsel referred the court to the case of <b>ISIEVWORE vs. NEPA (2002) 13 NWLR. (Pt 784) 417 at 434, paras. C - F</b> and <b>REGISTERED TRUSTEES OF PLANNED PARENTHOOD FEDERATION OF NIGERIA vs. SHOGBOLA (Supra) at page 18, paras. D - G</b>. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">Furthermore, counsel placed reliance on the holding in <b>C. C. B. (NIG.) LTD. vs. OKONKWO (2001) 15 NWLR (Pt. 735) 114 at 137 -138, paras. G – B</b> that is to the effect that it is only in employments under statute or which have statutory flavour that a dismissal can be said to be unlawful, ultra vires, null and void and of no effect, in that the purported dismissal was not done by the correct officer designated to do the termination or dismissal, or that the correct procedure stipulated in the enabling statute was not followed. In all other cases which have no statutory flavour, all the court can say is that the dismissal is wrongful.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-font-width:105%;mso-bidi-language:HE">It is the opinion of counsel that in recognition of the above legal principle, a court will not make an order of declaration nullifying a termination or dismissal in an ordinary contract of employment which is not regulated by statute. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-font-width:105%;mso-bidi-language:HE">Subsequent to the foregoing, Learned Counsel for the Defendant proceeded to articulate the main issues for determination in this suit as follows: <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width:105%; mso-bidi-language:HE">1. Whether, having regard to the pleadings filed by the Claimant in this suit and the evidence led by the Claimant at the trial of this suit, the Claimant has established that his dismissal by the Defendant was wrongful.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width:105%; mso-bidi-language:HE">2. Assuming without conceding that the Claimant's dismissal by the Defendant was wrongful, whether the Claimant is entitled to the reliefs claimed in this suit. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-font-width:105%;mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-font-width:105%;mso-bidi-language:HE">On main issue one; counsel contended that having regard to the pleadings filed by the Claimant in this suit and the evidence led by the Claimant at the trial of this suit, the Claimant has failed to establish that his dismissal by the Defendant was wrongful. See <b>CHARLES EKEAGWU vs. NIGERIAN ARMY </b></span><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">(2010) 16 NWLR (Pt. 1220) 419 at 429</span></b><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">. It is the further contention of counsel that the foundation of the relationship between the Claimant and the Defendant in the instant suit lies on the Claimant's Contract of Employment. This is owing to the fact that any other employment other than employment with a statutory flavor is governed by the terms under which the parties agree to be master and servant. Counsel urged the Court to hold that Exhibit H governs the relationship between the Claimant and the Defendant. <b>IMOLOAME vs. WAEC </b><b>(1992) 9 NWLR (Pt. 265) 303; SHITTA-BAY vs. UNIVERSITY OF LAGOS (1981) 1 SC 40.</b><o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-font-width:105%;mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-font-width:105%;mso-bidi-language:HE">Relying on the </span><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-bidi-language:HE">foregoing decisions, counsel submitted that having executed Exhibit J, the Claimant is bound by the express provisions of Clauses 5, 7.2, 7.3 and 12 of Exhibit H. The indicated clauses read as follows:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">5: <b>Effective Date and Duration</b> <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">This Agreement shall be effective from October 1, 2009 and shall thereafter remain in force until terminated by either party in accordance with the terms of this Agreement. For the purpose of this Agreement, the 'Date of Joining' shall be the date of assumption of duty. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.5in"><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language: HE">7.2: Obey all lawful instructions issued to him by his line manager and as provided in the Employee Hand Book and/or Human Resources Manual. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">7.3: Comply strictly with the provisions of the EMTS Compliance and Ethics Code. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">12: <b>Breach</b> <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">It is understood that where the Employee breaches any of the terms of this <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">Agreement, the disciplinary conditions as contained in the Employee Hand Book and/or Human Resources Manual shall be applied, including but not limited to summary dismissal and/or prosecution in a competent Court of Law. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">Accordingly, counsel referred the Court to the case of <b>CENTRAL BANK OF NIGERIA vs. IGWILLO (2007) 4 - 5 SC 154</b>, where the Supreme Court held thus: <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">“Where a contract, including contract of employment involves several documents, the trial court can only determine the issues before it on the basis of the documents including letters relating to the contract and the conduct of the parties. It is in keeping with the principle above that in interpreting that contract which involves several documents, the documents must be read together.”<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">In the same vein, counsel submitted that Exhibit H,<b> </b>that is, Contract (Terms) of Employment, must be read in conjunction with the Claimant's Acceptance of Terms of Employment (Exhibit J) as well as Exhibit K and Exhibit L.<b> </b>Counsel urged the court to hold that the Claimant is bound by the express terms of Clauses 4.1, 5.2.1, and 7.1.6, amongst other Clauses of Exhibit<b> </b>L.<b> </b><o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">Further, counsel submitted that the Claimant stated that he was employed by the Defendant sometime in May 2008 and that his employment was eventually confirmed by the Defendant by a letter dated the 10<sup>th</sup> day of November, 2009 signed by Abigail Isokpan (the Acting Chief Human Resources Officer on behalf of the Defendant) after a successful completion of six (6) months probationary period. The Claimant also stated that the Defendant, without due regard to its rules and regulations as contained in the Defendant's Compliance and Ethics Code, purported to dismiss the Claimant by an unsigned letter dated 19<sup>th</sup> September, 2013 and that since his dismissal on the 19<sup>th</sup> of November 2013, the Claimant has not received any salaries and allowances till date. Counsel submitted that other than the Claimant’s deposition, as contained in paragraph 8 of the Claimant's Statement on Oath to the effect that he did not convert any of the Defendant's customer's fund or conceal any financial record of the Defendant, the Claimant did not furnish any evidence in support of his contention that he was wrongful dismissed by the Claimant. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">Also, counsel asserted that the Claimant, under cross-examination, admitted that he received the Defendant's emails of 10<sup>th</sup> and 11<sup>th</sup> April, 2013, which was admitted in evidence and marked as "Exhibit F",<b> </b>that communicated changes in the prices of certain products and that he received and understood the purport of "Exhibit F"; still sold products at the old price which is the higher price but recorded the new price in the company's daily sales record sheet; and that he did not issue he customer a receipt at the time of sale. Counsel submitted that this admitted act was carried out in clear contravention of the Defendant's lawful instruction which he had received by the Claimant by way of Exhibit F,<b> </b>the purport of which the Claimant also admitted under cross-examination to fully understand. Counsel submitted further that taken together the Claimant not only failed to prove that he was wrongfully dismissed by the Defendant by leading cogent and credible evidence but the Claimant even admitted the allegation on the basis of which he was dismissed by the Defendant. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">More so, counsel is of the view that, contrary to the allegation that the Claimant was dismissed without due regard to the Defendant's rules and regulations as contained in the Defendant's Compliance and Ethics Code, the Claimant was duly dismissed for gross misconduct in line with the provisions of “Exhibit K” (that is, the Defendant's HR Policy Manual), which contains and clearly sets out a list of infractions and the sanctions applicable in the event of a breach of the provisions contained therein. It is the Defendant's case that, sometime in May 2013, the Claimant converted money paid to him by a customer of the Defendant by failure to record the actual sum received from the customer in the Defendant's Daily Sales Record Sheet provided for that purpose, an act regarded as a gross misconduct and punishable with dismissal under Exhibit<b> </b>K. Furthermore, it is counsel’s submission that after investigation, the Claimant was duly invited, by an email dated 3<sup>rd</sup> September 2013, to appear before the Defendant's Disciplinary Committee on 5<sup>th</sup> September 2013 regarding the aforementioned HR Policy contraventions and that the Claimant was accorded fair hearing and an opportunity to make representation concerning these infractions and was duly invited to the Defendant's Disciplinary Committee hearing to state his position; and at the end of the disciplinary proceedings, the Claimant was found culpable of gross misconduct and dismissed in line with the applicable sanction under the Defendant's HR Policy. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">Again, counsel stated that under cross-examination, DW1 and DW2 stated that the Claimant converted money paid to him by recording a lesser amount from what he actually received from the customer. DW2 maintained that the Claimant was invited to Disciplinary Proceedings by the Defendant during which one Mr. Emmanuel Nwabuwah, a fellow employee of the Claimant, informed the Disciplinary Panel that immediately after the customer left he drew the Claimant's attention to fact that the Claimant had collected a higher amount from the customer. DW2 also maintained that Mr. Nwabuwah further testified at the proceedings that when the customer came, he confronted the Claimant about the excess and that the Claimant admitted there and then and that the money was then returned to the customer at that meeting. Counsel submitted that these evidence were neither controverted nor contradicted by the Claimant.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">Similarly, counsel submitted that in addition to the provisions of Clauses 7.2 and 7.3 of Exhibit<b> </b>H, Paragraph 2 of Exhibit<b> </b>C incorporated Exhibit K and Exhibit L by reference and the Defendant was very much within its rights to apply the sanctions contained in Exhibit K<b> </b>to the Claimant when he breached the provisions of Exhibit L,<b> </b>and that the Defendant's dismissal of the Claimant was within the ambit of the internal rules and regulations of the Defendant.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">It is the argument of counsel that the Claimant was given fair hearing, by virtue of Exhibit M, which invited the Claimant to appear before the Defendant's Disciplinary Committee on 5<sup>th</sup> September, 2013 at which forum the Claimant had the opportunity to state his case or make relevant representations in his defence and/or favour. Counsel argued further that, having failed to adduce credible evidence to prove the claim that his dismissal by the Defendant was wrongful, the Claimant has failed to prove his claim and the claim for a declaration that his dismissal is wrongful must inevitably fail. Counsel referred the Court to Sections 135 (1) and 136 of the Evidence Act, 2011 and submitted that a person who alleges a fact has the burden of proving same and it is an established principle of Nigerian law that the burden of proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence is produced on either side or on the party that has made an allegation. See also the following cases: <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.25in;text-align:justify;text-indent: -.25in;mso-list:l4 level1 lfo5"><!--[if !supportLists]--><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family: "Comic Sans MS";mso-bidi-font-family:"Comic Sans MS";mso-font-width:107%; mso-bidi-language:HE">1.<span style="font-variant-numeric: normal; font-weight: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span></b><!--[endif]--><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width:107%; mso-bidi-language:HE">EGHAREVBA vs. OSAGIE </span></b><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width: 105%;mso-bidi-language:HE">(2009) 18 </span></b><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width: 107%;mso-bidi-language:HE">NWLR (Pt. </span></b><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width: 105%;mso-bidi-language:HE">1173) 299 </span></b><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width: 107%;mso-bidi-language:HE">at </span></b><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width:105%; mso-bidi-language:HE">315, </span></b><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width:107%; mso-bidi-language:HE">paras. B - C;<o:p></o:p></span></b></p> <p class="MsoNoSpacing" style="margin-left:.25in;text-align:justify;text-indent: -.25in;mso-list:l4 level1 lfo5"><!--[if !supportLists]--><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family: "Comic Sans MS";mso-bidi-font-family:"Comic Sans MS";mso-font-width:107%; mso-bidi-language:HE">2.<span style="font-variant-numeric: normal; font-weight: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span></b><!--[endif]--><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width:107%; mso-bidi-language:HE">ANDONG ADAKE </span></b><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width: 86%;mso-bidi-language:HE">& </span></b><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width:107%; mso-bidi-language:HE">ANOR vs. ADAMU AKUN </span></b><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width: 105%;mso-bidi-language:HE">(2009) 14 </span></b><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width: 107%;mso-bidi-language:HE">NWLR. (Pt. </span></b><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width: 105%;mso-bidi-language:HE">840) 418</span></b><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width: 107%;mso-bidi-language:HE"><o:p></o:p></span></b></p> <p class="MsoNoSpacing" style="margin-left:.25in;text-align:justify;text-indent: -.25in;mso-list:l4 level1 lfo5"><!--[if !supportLists]--><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family: "Comic Sans MS";mso-bidi-font-family:"Comic Sans MS";mso-bidi-language:HE">3.<span style="font-variant-numeric: normal; font-weight: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span></b><!--[endif]--><b><span style="font-size:12.0pt;font-family: "Comic Sans MS";mso-font-width:107%;mso-bidi-language:HE">DADA vs. DOSUNMU </span></b><b><span style="font-size:12.0pt;font-family: "Comic Sans MS";mso-font-width:105%;mso-bidi-language:HE">(2006) 18 </span></b><b><span style="font-size:12.0pt;font-family: "Comic Sans MS";mso-font-width:107%;mso-bidi-language:HE">NWLR (Pt. </span></b><b><span style="font-size:12.0pt;font-family: "Comic Sans MS";mso-font-width:105%;mso-bidi-language:HE">1010)134</span></b><b><span style="font-size:12.0pt;font-family: "Comic Sans MS";mso-font-width:106%;mso-bidi-language:HE">5</span></b><b><span style="font-size:12.0pt;font-family: "Comic Sans MS";mso-bidi-language:HE"><o:p></o:p></span></b></p> <p class="MsoNoSpacing" style="margin-left:3.0pt;text-align:justify"><span style="font-size:4.0pt;font-family:"Comic Sans MS";mso-font-width:107%; mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="margin-left:3.0pt;text-align:justify"><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width:107%; mso-bidi-language:HE">Again, counsel argued that</span><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE"> the Claimant’s averment in his claim that his dismissal was unlawful constitutes a mere assertion that should not be accepted without proof because the law is now settled that averments in pleadings do not constitute evidence and cannot be substituted for evidence and do not amount to proof of a fact unless admitted by the adverse party. See the cases of <b>AJERO & ANOR vs. UGORJI & 6 Ors (1999) 10 NWLR (Pt. 621) 1</b>. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">Again, in response to the Claimant’s claim that his dismissal letter should be invalidated by the Court and/or that he was wrongfully dismissed by the Defendant because the Claimant's purported dismissal letter was not signed by the Defendant's Chief Human Resources Officer, or any person with a modicum of authority to do so; counsel referred the court to the holding in <b>C. C. B. (NIG.) LTD. vs. OKONKWO (supra)</b>. Also, counsel submitted that DW2, under cross-examination, stated that even though Abigail Isokpan was the Defendant's Chief Human Resources Officer at the material time, that it is not always the case that any letter emanating from the Defendant must bear the name and designation of the writer or maker. Counsel submitted further that in the event that the Claimant's case was correct, his conduct in ceasing resumption at his deployed centre after he received Exhibit A confirms the fact that the authorized signatory executed Exhibit A. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">With respect to the second issue, counsel contended that the Claimant is not entitled to the reliefs claimed in this suit. On the first relief claimed, counsel submitted that the relief implies that the Claimant's contract of employment with the Defendant is still subsisting and would amount to making an order reinstating an employee to his employment where the employee's contract of service does not have statutory flavour. See <b>NEPA vs. ADESANJI (2002) 17 NWLR. (Pt. 797) 578 at 611</b>. It is counsel’s further submission that an employee whose contract of employment is not with statutory backing but is governed by the agreement of the parties may be removed by way of termination of appointment or dismissal in the form agreed to by the parties to the contract of employment. See <b>NIGERIA AIRWAYS vs. OKUTUBO (supra)</b>. Counsel argued that the law is clearly enunciated in the case of <b>C. C. B. (NIG.) LTD. vs. OKONKWO (Supra)</b> is that it is only in employments under statute or which have statutory flavour that a dismissal can be said to be unlawful, ultra vires, null and void and of no effect in that the purported dismissal was not done by the correct officer designated to do the termination or dismissal. Counsel buttressed his point further that the courts will not make an order of declaration in an ordinary contract of employment which is not regulated by statute. See <b>KABELMETAL NIG. LTD vs. ATIVIE (2002) 10 NWLR (Pt. 775) 250 at 270, paras. D – G.</b><o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">It is counsel’s opinion that the above position is grounded on the principle that in a contract of employment, the employer can terminate the contract with the employee at any time and for any reason or for no reason at all, and where the employer does so in a manner not contemplated in the contract, the only remedy available to the employee is in damages for the breach of the contract. See <b>OLANIYAN vs. UNIVERSITY OF LAGOS (1985) 2 NWLR (Pt. 9) 599 at 612</b> and <b>S. O. ILODIBIA vs. NIGERIAN CEMENT COMPANY LTD. (1997) 174 at 187- 188</b>. Counsel urged the Court to follow and apply the reasoning in the above decisions of the Supreme Court and discountenance the Claimant's claim.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">Regarding the Claimant’s relief for the sum of Twenty Million Naira as general damages for wrongful termination of the Claimant's employment; counsel submitted that parties are bound by their pleadings and that the Claimant's case is that he was wrongfully dismissed by the Defendant. Counsel further submitted that the Court cannot grant the Claimant damages for wrongful termination, which is different from wrongful dismissal asserted by the Claimant in his pleadings and that the Claimant's claim for general damages must necessarily fail. In addition, counsel argued that assuming that the Claimant was wrongfully dismissed by the Defendant, as claimed, the Claimant is not entitled to general damages but may only be entitled to damages naturally arising from the breach, and the Court will not grant general damages, exemplary damages and special damages in a claim of breach of contract. Counsel submitted further that it is improper to classify damages into special and general damages for the purposes of an award in cases of breach of contract and apart from damages generally resulting from the breach, no other form of general damages can be contemplated. See the cases of <b>KABELMETAL NIG. LTD vs. ATIVIE (supra)</b> and <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language: HE;mso-bidi-font-style:italic">OKONGWU vs. </span></b><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language: HE">N. N. P. C (1989) 4 NWLR. (Pt. 115) 296 at 315, paras. E – F</span></b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">. In addition, counsel drew the court’s attention to the case of <b>A. G. LEVENTIS NIG LTD vs. AKPU (2002) 1 NWLR. (Pt. 747) 182 at 216, paras. B - C</b>, where the Court of Appeal held that in contract, there is basically no dichotomy between special and general damages as it is the position in tort ... it is damages simpliciter for loss arising from breach.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">It is the submission of counsel that, having not asked for the proper relief, which is damages simpliciter, the Claimant's monetary claims for general damages must also fail since the courts of this country are enjoined in several decisions of the apex court not to grant a party a relief that a party did not seek. <b>NDULUE vs. IBEZIM (2002) 12 NWLR (Pt. 780) 139 at 166 – 167</b>. Counsel submitted that where the court finds as a fact that an employee's employment was wrongfully terminated, he can only be entitled to unpaid salaries which he ought to have been paid if not for the wrongful termination. Counsel referred to the decision in <b>COOPERATIVE DEVELOPMENT BANK PLC vs. ESSIEN (2001) 4 NWLR. (Pt. 704) 479</b>, where it was held as follows: <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><i><span style="font-size:12.0pt;font-family: "Comic Sans MS";mso-bidi-language:HE">“I must observe that the measure of damages for wrongful dismissal is the amount that the Plaintiff would have earned had he continued in the employment and these are items of special damages limited and calculated within the period of notice of termination or dismissal alongside any entitlement due such employee within the period. As I observed earlier this not a case that an award of general damages could have been made and the learned trial Judge was therefore in error to have awarded the respondent the sum of <s>N</s>100,000.00 as general damages for wrongful dismissal.” <o:p></o:p></span></i></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">See also <b>GARUBA vs. KWARA INVESTMENT CO. LTD. (2005) 5 NWLR (Pt. 917) 160<i>.</i></b><o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">Similarly, counsel submitted that a party is bound by his pleading and cannot go outside it to lead evidence or rely on facts which are extraneous to those pleaded. See <b>KYARI vs. ALKALI (2011) 11 NWLR (Pt. 724) 412 at 433-434</b>. Again, counsel further submitted that in the Amended Statement of Facts, the Claimant neglected, failed or refused to specifically plead his salaries or the specific damages which he claims; and for any claim for special damages to succeed, a party must plead, particularize, or itemize it. It must be claimed specially and proved strictly. See <b>CAMEROUN AIRLINES vs. OTUTUIZU (2011) 4 NWLR. (Pt. 1238) 512 at 544</b>. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">Furthermore, counsel argued that under cross-examination, the Claimant admitted that his monthly salary is <s>N</s>150,000.00 (One Hundred and Fifty Thousand Naira) and it is not in dispute that the Claimant and the Defendant, had by clause 10 (1) of Exhibit J, agreed that either party shall at any time be entitled to terminate this Agreement, by a one month notice to the other party, provided that where the termination is by the Defendant, then the Defendant shall pay one month's basic salary to the Claimant (as Employee) in lieu of such notice and where the termination is by the Claimant (as the Employee), the Claimant shall pay one (1) month's basic salary to the Defendant in lieu of such notice. Counsel submitted therefore that, in the event that this Honourable Court finds that the Claimant was wrongfully dismissed by the Claimant, the damages that this Court should award to the Claimant should not exceed the sum of <s>N</s>150,000.00 (One Hundred and Fifty Thousand Naira) agreed by both the Claimant and the Defendant as payable to each other in the event of any termination without due notice. It is counsel’s assertion that the Claimant was dismissed in line with the provision of Clause 12 of Exhibit J. He is therefore not entitled to any notice or damages as claimed. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">Regarding the Claimant’s claim for unpaid salaries and allowances from the date of dismissal to the date of determination of the suit; counsel contended that the Claimant did not specifically plead any fact or lead any evidence in strict proof of the fact that he was entitled to any unpaid salaries and allowances from the date of dismissal to the date of determination of the suit. Counsel submitted further that parties to a civil suit are bound by their pleadings and that, having failed to specifically plead any fact constituting the basis of this head of claim, the Claimant has failed to establish that he is entitled to any unpaid salaries and allowances. It is counsel’s argument, relying on Section 135 (1) and 136 of the Evidence Act, and the case of <b>DADA vs. DOSUNMU (supra)</b> that a person who alleges a fact has the burden of proving same, and that having claimed that he was entitled to unpaid salaries and allowances, the Claimant has a duty to prove same by specifically pleading the facts in support of these heads of claim and leading evidence in strict proof of those heads of claim. Counsel relied on the case of <b>NWANJI vs. COASTAL SERVICES (NIG.) LTD. (2004) 11 NWLR (Pt. 885) 552 at 568, para. F - H</b>, and submitted that strict proof does not mean unusual proof but it implies that a Plaintiff who has the advantage of being able to base his claim upon a precise calculation must give the Defendant access to the facts which makes such calculation possible. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">In summary, counsel submitted that the Claimant has failed to prove his claim for unpaid salaries and allowances so as to entitle this Court to grant same. Counsel submitted further that having failed to prove all aspects of his claim for unpaid salaries and allowances, the Claimant's claim must fail as it is not within the province of this Court to embark on a voyage of discovery to determine how much the Claimant is entitled to under this head of claim. Accordingly, counsel urged the court to resolve Issue 2 in favour of the Defendant. In conclusion, counsel urged the Court to hold that the Claimant has failed to prove his case in accordance with his contract of employment. He urged the court to dismiss this suit with substantial costs. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">In the Claimant counsel’s final address, counsel formulated one issue in response to the preliminary issues raised by the defence counsel, which is: <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><b><i><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">Whether </span></i></b><b><i><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width:105%; mso-bidi-language:HE">a </span></i></b><b><i><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">Claimant whose employment is or was not statutorily protected, is entitled </span></i></b><b><i><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">to an order nullifying his or her termination or dismissal. <o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE;mso-bidi-font-style:italic">In arguing this issue, Learned Counsel for the Claimant </span><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">agreed with the Defendant that the contractual relationship of the Claimant and the Defendant is governed by common law and local Labour Law (Act), and submitted that this court can declare a dismissal as wrongful, unlawful or irregular and consequently set it aside. Counsel went further to submit that the Claimant in this case is neither seeking for a reinstatement nor saying that his employment has any statutory flavor. Counsel urged the court to dismiss the preliminary issues raised by the defendant as they are frivolous and an abuse of process of this court.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">On the main issues in the Defendant counsel’s final address, counsel proposed one issue in response, as follows:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><b><i><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">Whether, having regard </span></i></b><b><i><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">to the pleadings filed by the Claimant in this suit and evidence led by the Claimant at the trial of this suit, the Claimant has established that his dismissal by the Defendant was wrongful. <o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">In arguing this issue, counsel referred the court to paragraphs 3, 4, 5, 6, 7, 8, 10, 11 and 12 of the amended statement of facts, paragraphs 1, 2, 3, 4, 5, 6, 7, 8, and 9 of the Claimant's Reply to the statement of defence filed on 14/4/2014, and submitted that the Claimant by pleadings and evidence made out a clear case of wrongful dismissal. Counsel further argued that the case of <b>EKEAGWU vs. NIGERIAN ARMY (supra)</b> cited by the Learned Defence counsel is distinguishable from the instant case and not applicable. In counsel’s words, the facts of the EKEAGWU’s case (supra) are as follows; The appellant was a Captain in Nigerian Army and worked in the Artillery Division finance office as a cashier until the division was disbanded and he was posted out to 15 Mechanized Brigade, Yola as the Brigade Finance Officer from January - June. He was summoned to Military Intelligence, Lagos in connection with alleged missing <s>N</s>9,OOO,OOO.OO from the account of disbanded department where he had worked after the appellant had left the said department. The appellant and others were charged before a Special Military Tribunal on recovery of public property which acquitted and discharged him in 1993. As a result of the acquittal, he was redeployed but surprisingly dismissed from Nigerian Army in 1994. The appellant instituted a suit in Federal High Court where he successfully challenged his dismissal. The court ordered his reinstatement and he was paid arrears of his salaries. Responding to the judgment, the appellant was again compulsorily retired from the Nigerian Army, and he filed the present action seeking amongst other orders a further reinstatement to the Nigerian Army. The response of the army to the suit was the defence of ESTOPPEL, contending, inter alia, that appellant had been paid his entitlements. The Lower Court upheld the defence of estoppel and dismissed the claim of the appellant. The Court of Appeal held that the defence of estoppel does no avail the respondents, nevertheless dismissed the appeal. The Supreme Court held that, the appellant having been compulsorily retired he is entitled to be paid his retirement benefits. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">According to counsel, in the instant case, the Defendant’s case is summed up at Paragraph 2(d) of the Statement of Defence. i.e. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">“Sometime in May 2013, the Claimant converted money paid to him by a customer of the Defendant by failure to record the actual sum received from the customer in the Defendant’s daily sales record sheet provided for that purpose, an act regarded as a gross misconduct and punishable with dismissal under the Defendant’s HR Policy Manual…….”<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">On the other hand, counsel contended that the Claimant admitted that he made a mistake and realized what he did when he was reminded by Emmanuel Nwabuwah, a colleague in his office and he handed the balance of the money <s>N</s>1,500 to the said Emmanuel Nwabuwah who kept same in their safe deposit after entering it into a Note Book made for such purpose. Further, counsel submitted that the Claimant's case is that DW1 arrived at their office at Owerri as he routinely does and took special interest in the issue, as Regional Manager sent a warning to the Claimant and his colleagues at the Experience Centre in Owerri. It is counsel’s submission that from Exhibit K, a warning is a sanction and only the HR is authorized to issue it. DW1 as Regional Manager did not report this incident to the Ag. CHRO as provided in the said Human Resources Manual Exhibit K. He instituted an internal Audit Panel hearing, and the Claimant, Emmanuel Nwabuwah and Okechukwu Chijioke were then invited to Lagos for an inquiry leading to this wrongful dismissal. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">Counsel referred the court to pages 51-69 i.e. Section 9 “DISCIPLINARY AND GRIEVIANCE HANDLING”, sub paragraph 13 -INITIATION OF DISCIPLINARY PROCESS which provides as follows: <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">“In event of a breach of policy or any infraction occurring, the following procedure shall flow there from: <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">(a) A query to be issued to the employee by the Manager/Supervisor or H. R. with a response expected within Twenty Four (24) hours in writing. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">(b) Managers and Supervisors are empowered to discipline their subordinates at all times to instill discipline and order in the Company. Accordingly, Managers may advise H.R. after the query and answer sequent to issue sanction letters not above caution to their subordinates, with appropriate justification report. Upon receipt of the report the <u>CHRO</u> shall review the case as detailed in the report following which the recommended sanction may be issued or declined. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS""> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS"">It is counsel’s submission that</span><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE"> pursuant to Exhibit K, the Audit may also initiate investigation but its findings shall be presented to H.R and that for any disciplinary procedure to commence it shall be commenced with a query from the Manager/Supervisor or H.R. Counsel also invited the court to consider to page 76 of the Exhibit K - APPENDIX I: Definition of Terms that includes:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">WARNING - This may be issued for a more serious misconduct at first incidence, or repeated infractions. Due to the nature of the infractions that may attract this sanction, it is usually with stern admonishment of expectation of improvement similarly as a result of the serious consequences that flow from this sanction and to prevent abuse, H.R. shall issue this sanction. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">In the same vein, counsel submitted that in the instant case, it was not denied by the Defendant that DW1 issued a warning letter to the Claimant and all his colleagues at Owerri Experience Centre and this was enough punishment for the alleged offence committed pursuant to the punishment stipulated at Page 53 of Exhibit K. Also, counsel argued that Exhibit H i.e. Contract Terms shall be read subject to Exhibit K, the Human Resources Policy Manual which details out infractions and punishment for same, especially as it was not the Defendant's case in this suit that the Claimant disobeyed anybody or any lawful instructions by the Defendant Company. Counsel contended that flowing from paragraph 2(a) of the statement of defence, the offence alleged does not attract a sanction as drastic as “dismissal” and that the Claimant having been given the appropriate punishment "warning" the purported dismissal was wrongful. Counsel further submitted that the conversion of customer's money as alleged by the Defendant, is a criminal allegation and the burden of proof beyond reasonable doubt rests on the Defendant. See Section 135 (1), (2) and (3) of the Evidence Act. Counsel referred the court to the case of <b>CO-OPERATIVE & COMMERCE BANK (NIG) LTD & ORS vs. KENNETH C. OKONKWO (2001) 15 NWLR (Pt. 735) 114, P.134, Paras C-D</b> where it was held that:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width:109%; mso-bidi-language:HE;mso-bidi-font-style:italic">“I have carefully considered all the arguments canvassed above by Learned Counsel on both sides, and have </span><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width:109%; mso-bidi-language:HE">to agree with Learned Trial Judge that the allegations </span><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-font-width:117%;mso-bidi-language:HE">of </span><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width: 109%;mso-bidi-language:HE;mso-bidi-font-style:italic">dishonesty, fraud and unauthorized excess lending levied against the Respondent, </span><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width:109%; mso-bidi-language:HE">as grounds for the dismissal, being criminal and quasi-criminal offences were not proved beyond reasonable doubt”.</span><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"><o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">At this juncture, Counsel submitted that the Defendant withheld vital evidence that would enable it prove his case i.e. the evidence of Mr. Nwabuwah Emmanuel who is still in their employment. It was within the beck and call of the Defendant to call this witness in Owerri to clear the doubt as to whether the conversion was intended by the Claimant. See Section 167(d) of the Evidence Act, 2011 and <b>NSC (NIG) LTD vs. INNIS-PALMER (1992) 1 NWLR (Pt. 218) 422</b>. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">Furthermore, counsel contended that Mr. Nwabuwah Emmanuel is available at the office at Owerri, he would have been called by application of human diligence and knowledge and it was a ploy by the Defendant not to call this witness because the Defendant knew that the evidence would be fatal to their assertion. It is counsel’s further contention that for a letter of termination or dismissal to be effective in law, it must be issued and signed by the appropriate authority, which was not done in the extant case. Also, counsel asserted that from Exhibit K, it is beyond contention that Abigail Isokpan is the only person outside the C.E.O. who can sign such a letter of dismissal. Counsel referred the court to the Black Laws Dictionary definition of signature, which reads: “the act of putting one's name at the end of an instrument to attest its validity; the name thus written”. Counsel argued that the signature on Exhibit A is not a name or prefix of any name and was not signed by Abigail Isokpan, CEO or any person at all. See the case <b>ASHIBOGU vs. AFPRINT (NIG) LTD (1985) HCNLR 400</b>. Counsel urged the court to resolve this issue in the Claimant’s favour.<i><o:p></o:p></i></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">Again, counsel submitted that if this above argued issue is resolved in favour of the Claimant, reliefs (a) and (b) is upheld, and that the import of a wrongful dismissal is that the Claimant is entitled to the usual damages in terms of what he would have earned for the period, including that of notice of termination from the day the dismissal is declared wrongful. Similarly counsel argued further that damages for breach of contract in the case of ordinary master and servant relationship are calculated to cover the period of notice necessary to terminate the contract as stipulated in the contract of service together with accrued entitlements, if any. Counsel referred the court to the following cases:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l3 level1 lfo6"><!--[if !supportLists]--><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family: "Comic Sans MS";mso-bidi-font-family:"Comic Sans MS";mso-bidi-language:HE">1.<span style="font-variant-numeric: normal; font-weight: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span></b><!--[endif]--><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">WESTERN NIGERIA DEVELOPMENT CORPORATION vs. ABIMBOLA (1966) 1 ALL NLR 159; </span></b><b><span style="font-size:12.0pt;font-family: "Comic Sans MS";mso-font-width:90%;mso-bidi-language:HE"><o:p></o:p></span></b></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l3 level1 lfo6"><!--[if !supportLists]--><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family: "Comic Sans MS";mso-bidi-font-family:"Comic Sans MS";mso-bidi-language:HE">2.<span style="font-variant-numeric: normal; font-weight: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span></b><!--[endif]--><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">NIGERIAN PRODUCE MARKETING BOARD vs. ADEWUMI (1972) 1 ALL NLR (Pt. 2) 870; </span></b><b><span style="font-size:12.0pt;font-family: "Comic Sans MS";mso-font-width:90%;mso-bidi-language:HE"><o:p></o:p></span></b></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l3 level1 lfo6"><!--[if !supportLists]--><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family: "Comic Sans MS";mso-bidi-font-family:"Comic Sans MS";mso-bidi-language:HE">3.<span style="font-variant-numeric: normal; font-weight: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span></b><!--[endif]--><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-bidi-language:HE">CHUKWUMAH vs. SHELL PETROLEUM DEVELOPMENT CO. OF NIG. LTD (1993) 4 NWLR (Pt. 289) 512;</span></b><b><span style="font-size:12.0pt;font-family: "Comic Sans MS";mso-font-width:90%;mso-bidi-language:HE"><o:p></o:p></span></b></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l3 level1 lfo6"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-bidi-language:HE">4.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><b><span style="font-size:12.0pt;font-family: "Comic Sans MS";mso-bidi-language:HE"> THE SHELL PETROLEUM DEVELOPMENT CO. OF NIG. LTD vs. LAWSON- JACK (1998) 4 NWLR (Pt. 545) 249, P. 272 Paras </span></b><b><span style="font-size:12.0pt;font-family: "Comic Sans MS";mso-font-width:90%;mso-bidi-language:HE">A-B. </span></b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width:90%; mso-bidi-language:HE"><o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE">In view of the foregoing arguments, counsel urged the court to hold that the Claimant proved his case on a preponderance of evidence led in this trial and that the Claimant is entitled to the reliefs sought in this suit.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS";mso-bidi-language:HE"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS"">In the Defendant counsel’s Reply on Points of Law filed on 25/10/2016, counsel submitted that any relevant evidence elicited during cross-examination, though not pleaded, is admissible. Counsel referred the court to the case of <b>AKOSOBI vs. OBINECHIE (2004) 2 NWLR (Pt. 857) 355</b>, where the court held that evidence elicited under cross-examination formed part of a party’s evidence that cannot be challenged or rejected by that party. The court’s attention was also drawn to <b>MADUKA vs. ANYADIEGWU (2014) LPELR-23751 (CA) 26-7</b>, where the Court of Appeal held inter alia:</span><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width:90%; mso-bidi-language:HE"><o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><span style="font-size:12.0pt;font-family:"Comic Sans MS"">“evidence extracted during cross-examination has similar potency and weight in relation to the facts in contention. Consequently, where answers to questions posed under cross-examination are relevant and linked to the fact in issue, such answers cannot be swept aside with a wave of hand…or ignored, simply because it was procured through or under the intense heat of cross-examination…”<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS""> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS"">Furthermore, it is counsel’s submission that the court cannot set aside the dismissal of the claimant’s employment for being a nullity unless it is statutory. Counsel contended further that the effect of the Claimant’s counsel’s concession that the Claimant’s employment in this suit is not statutorily protected; is that the Claimant is not entitled to a declaration that his dismissal is wrongful. Also, counsel is of the view that a dismissal can be declared wrongful by court but not automatically declared a nullity as the consequence of a declaration that a dismissal is a nullity, means the employee must be reinstated to his position. At this juncture, counsel argued that that the Claimant cannot approbate and reprobate by on one hand, conceding that his employment lacks statutory flavour; and on the other hand claiming for an order setting aside his dismissal for being null and void.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS""> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS"">Again, counsel submitted that it is late for the Claimant to amend his suit as contained in Paragraphs 12(a) and (b) of his amended statement of facts. Flowing from counsel’s earlier arguments, the Defence is of the view that the Claimant is not entitled to a declaration that his dismissal is “null and void and of no effect” because parties are bound by their pleadings and the court lacks the power to grants reliefs not claimed by the Claimant; or grant the Claimant a declaration different from the one he claimed. See the following cases of:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l2 level1 lfo7"><!--[if !supportLists]--><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family: "Comic Sans MS";mso-bidi-font-family:"Comic Sans MS"">1.<span style="font-variant-numeric: normal; font-weight: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span></b><!--[endif]--><b><span style="font-size:12.0pt;font-family: "Comic Sans MS"">KYARI vs. ALKALI (2001) 11 NWLR (Pt. 724) 412<o:p></o:p></span></b></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l2 level1 lfo7"><!--[if !supportLists]--><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family: "Comic Sans MS";mso-bidi-font-family:"Comic Sans MS"">2.<span style="font-variant-numeric: normal; font-weight: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span></b><!--[endif]--><b><span style="font-size:12.0pt;font-family: "Comic Sans MS"">OWENA BANK vs. STOCK EXCHANGE (1997) 7 SCNJ 160 at 172<o:p></o:p></span></b></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.25in;mso-list:l2 level1 lfo7"><!--[if !supportLists]--><b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family: "Comic Sans MS";mso-bidi-font-family:"Comic Sans MS"">3.<span style="font-variant-numeric: normal; font-weight: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span></b><!--[endif]--><b><span style="font-size:12.0pt;font-family: "Comic Sans MS"">EZEONWU vs. ONYECHI (1996) 2 SCNJ 250, (1996) LPELR 1212 (SC) 25<o:p></o:p></span></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS"">Further, counsel submitted that the purpose of citing the case of <b>EKEAGWU vs. NIGERIAN ARMY (supra)</b> was to assist the court in distilling the issues for determination in the instant case, in which the Claimant has instituted an action for wrongful termination. Consequently, counsel urged the court to discountenance the submissions of the claimant’s counsel attempting to distinguish the extant case from that of</span><span style="font-family:"Comic Sans MS""> </span><b><span style="font-size:12.0pt; font-family:"Comic Sans MS"">EKEAGWU vs. NIGERIAN ARMY (supra)</span></b><span style="font-size:12.0pt;font-family:"Comic Sans MS"">, and hold that the legal effect of Exhibit H being read subject to Exhibits K and L, is that summary dismissal was contemplated and was validly applied in this case. Again, counsel contended that the claimant was not dismissed for a crime that ought to be proved beyond reasonable doubt; rather he was dismissed for an infraction of the Defendant’s HR Policy Manual. Also, counsel submitted further that the Claimant admitted the commission of the infraction, and the infraction for which the Claimant was dismissed was within the jurisdiction of the Defendant; for which criminal standard of proof is unnecessary. In support of this submission, Counsel referred to the case of <b>AZENABOR vs. BAYERO UNIVERSITY (2009) LPELR-8721, 20-22</b>, where it was held that “once the offence committed by the employee is within the domestic jurisdiction of the employer, disciplinary action in such a case can be taken without recourse to a criminal charge.”<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:4.0pt; font-family:"Comic Sans MS""> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS"">In specific response to the Claimant counsel’s submission that the Defendant withheld valuable evidence by failing to call Mr. Nwabuwah Emmanuel as a witness, counsel argued that by virtue of Section 167(d) of the Evidence Act 2011, the Defendant is not required to call a particular witness since the Defendant had called other relevant witness. Again, counsel is of the opinion that if the provisions of Section 167(d) of the Evidence Act 2011 is placed alongside Paragraph 1 (d) of the Claimant’s Reply to the Statement of Defence; the burden to call Mr. Nwabuwah Emmanuel as a witness, rests on the Claimant. Further, counsel argued that the burden of proving that only Abigail Isokpan and the CEO of the Defendant can sign a termination letter rests on the Claimant, a burden that was not discharged. Similarly, it is the submission of counsel that the court should not allow a party to read into a contract document a meaning that is not there because there is nothing in Exhibit K that provides that only Abigail Isokpan and the CEO of the Defendant can sign a termination letter. It is the contention of counsel that the case of <b>ASHIBOGU vs. AFPRINT LTD (supra)</b> cited by the Claimant’s counsel because it bordered on the termination of a company secretary, whose employment was regulated by the Companies and Allied Matters Act. From the foregoing, counsel urged the Court to disregard the submissions proffered by the Claimant’s counsel in response to the Defendant counsel’s final address and dismiss the Claimant’s claims. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:2.0in;text-align:justify;text-indent: .5in"><b><u><span style="font-size:4.0pt; font-family:"Comic Sans MS""> </span></u></b></p> <p class="MsoNoSpacing" style="margin-left:2.0in;text-align:justify;text-indent: .5in"><b><u><span style="font-size:12.0pt; font-family:"Comic Sans MS"">COURT’s DECISION<o:p></o:p></span></u></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">Having heard from the learned counsels to the parties, I will now consider the case. In doing that, it is necessary that the facts of the case as presented from the angle of both parties be examined. </span><span style="font-size: 12pt; font-family: "Comic Sans MS";">The Claimant adopted two witness statements on oath as his evidence in this matter. The first one was the one he deposed on 12<sup>th</sup> December 2013 along with the original statement of facts and the 2<sup>nd</sup> one was made on 2<sup>nd</sup> July 2015 when he amended the statement of facts. Although he referred to the 2<sup>nd</sup> one as further evidence, I observe however that the material facts stated in both depositions are the same. Thus, the Claimant’s case, as stated by him in his pleading and evidence is that he was employed by the Defendant as a contract employee in a letter dated 1<sup>st</sup> September 2009 and his employee number was 1301. His employment was confirmed by the Defendant by a letter dated 10<sup>th</sup> November, 2009. Both letters were signed by Abigail Isokpan (Acting Chief Human Resources Officer). His last deployment, through a letter dated 16/8/12, was to Experience Centre, Owerri as Retail Adviser on Grade 12 with effect from 1<sup>st</sup> September 2012. He was in the Defendant’s employment for 5 years until his dismissal. All rights and privileges which include promotion, salary, discipline and emoluments are contained in the letter of employment and Compliance and Ethics Code. The Defendant, without due regard to its rules and regulations as contained in the Defendant's Compliance and Ethics Code, purported to dismiss the Claimant by an unsigned letter dated 19<sup>th</sup> September, 2013 and that since his dismissal on the 19<sup>th</sup> of November 2013, the Claimant has not received any salaries and allowances till date. The dismissal letter was not signed by Abigail Isokpan or any person with authority to do so. The Claimant averred that he did not convert any customer’s money or conceal any financial record of the Defendant. He also averred that the offences, for which he was dismissed as stated in the letter of dismissal, are not enough to justify a dismissal. In similar situations, in the past, the Defendant did not take the type of harsh position it took in his own case. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">The Defendant called two witnesses who gave evidence in line with facts pleaded by the Defendant in the statement of defence. The Defendant’s case as narrated by DW1, one Martins Ojugbeli who said he was the Regional Sales Manager, South-East, of the Defendant as at the time of the incidence, subject of this suit, is that on 12/4/2013, the Defendant effected price changes on its USB data modems and the new price of <s>N</s>3,990 was communicated to all its retail shops and retail staff including the Claimant through email dated 10<sup>th</sup> and 12<sup>th</sup> April 2013. The Defendant also reflected the new price of the products in its daily reporting template which was available and accessible to all its retail shops and retail staff including the Claimant through their assigned work tool or computer on a daily basis. On 14<sup>th</sup> May, 2013, the Claimant sold ZTE 190A modem model for the sum of <s>N</s>5,500 instead of the new approved price of <s>N</s>3,990. The Claimant also recorded the new price in the Defendant's daily sales record sheet instead of the actual amount he received from the customer. The Defendant regarded the act as gross misconduct and punishable with dismissal under the Defendant's HR Policy Manual. The Claimant converted money paid to him by a customer of the Defendant when he failed to record the actual sum received from the customer. The Claimant also failed to disclose the difference to his supervisor and to issue an official receipt for the transaction to reflect the transaction in the Defendant’s records. On 22/5/2013, the customer, Mr. Nnaemeka Anozie, called the witness to complain over the purchase of a modem at <s>N</s>5,500 instead of the new of price of <s>N</s>3,990. The Claimant was confronted with the allegation and after admitting to his wrongdoing, he also refunded the excess of <s>N</s>1,500 to the customer. The Claimant’s action was act of gross misconduct and amounts to infraction of the Defendant’s HR policy against conversion of customer’s property and suppression of financial document/record. This infraction attracts dismissal as was applied to the case of the Claimant. The act of the Claimant is detrimental to the business of the Defendant and has the potential of damaging the Defendant’s reputation.<o:p></o:p></span></p> <p class="MsoNoSpacing"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify;tab-stops:131.25pt"><span style="font-size: 12pt; font-family: "Comic Sans MS";">The evidence of DW2, one Akindele Abe, is similar to the evidence of DW1 in material respect. The additional facts contained in the evidence of DW2, who said he is a Manager, Industrial Relations in the Defendant and in charge of disciplinary issues, are that contrary to the allegation that the Claimant was dismissed without due regard to the Defendant's rules and regulations as contained in the Defendant's Compliance and Ethics Code, the Claimant was duly dismissed for gross misconduct in line with the provisions of the Defendant’s HR policy manual. This Manual contains rights and privileges of the Defendant’s employee’s and clearly sets out a list of infractions and the sanctions applicable in the event of a breach of the provisions contained therein. The Claimant converted the money of the Defendant’s customer and failed to record it in the Defendant’s financial record book. By the terms of the contract of employment between the Claimant and Defendant and letter of acceptance, the Claimant is bound by the provision of the HR policy and the Compliance and Ethics Code of the Defendant. The Defendant’s Internal Audit Department conducted an investigation into the Claimant’s activities and the Claimant was invited to appear before the Disciplinary Committee. The Claimant’s only defence to the allegation was that he was not aware of the change in price of the products. The Claimant was found to have committed the infraction of conversion and suppression of financial records contrary to the HR policy. Both offences are punishable with dismissal. The Claimant was dismissed by a letter dated 19/9/2013 signed by an authorized signatory/official of the Defendant with the approval and authority of the Defendant. The signature on the letter is valid. The Claimant was given fair hearing and was dismissed in line with applicable sanction under the Defendant’s HR policy.<o:p></o:p></span></p> <p class="MsoNoSpacing"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">Having examined the facts, and having also considered the submissions of the counsels to the parties in their final written addresses, the issue which, in my view, is to be determined in this matter is whether the Claimant has proved his case to entitle him to the claims he sought in this case.<o:p></o:p></span></p> <p class="NoSpacing1" style="text-align:justify"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="NoSpacing1" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">The first and 2<sup>nd</sup> reliefs sought by the Claimant are for declarations that his dismissal is null and void, wrongful and of no effect and an order setting aside the dismissal. In the 2<sup>nd</sup> preliminary issue raised in the final written address of the Defendant’s counsel, it was argued that the Claimant’s employment is that of ordinary master and servant, hence the Claimant is not entitled to these said reliefs which are available only to employment protected by statute. In his response to this preliminary issue in his final written address, the Claimant’s counsel admitted that the Claimant’s employment is one under common law and not protected by statute but counsel argued nonetheless that a declaration that the Claimant’s dismissal is null and void, and an order setting aside the dismissal are grantable in the circumstances of the case. Let me quickly point the legal issues arising from reliefs 1 and 2 sought by the Claimant before I proceed with the merit of the case. Usually, these remedies are available to an employee whose employment is protected by statute. Where the terms and conditions of a contract of employment are specifically provided for by statute or regulations made there under, it is said to be an employment with statutory flavour or contract protected by statute. Where this is not the case, the employment is merely that of master and servant. See<b> OLANIYAN vs. UNIVERSITY OF LAGOS (1985) 2 NWLR (Pt. 9) 599; BAMGBOYE vs. UNIVERSITY OF ILORIN (2001) FWLR (Pt. 32) 12. </b>The counsels to both parties have agreed that the Claimant’s employment is that of common law relationship of master and servant. I have also examined the Claimant’s employment letter and other documents governing the employment but find that they do not have the character of employment under statute. From my assessment of the nature of the Claimant’s employment, there is no doubt that it was an employment of master and servant. Therefore, the Claimant’s employment is that of master and servant. The law is settled that in such employment, termination of the servant’s employment or dismissal of the servant from employment cannot be considered to be null and void or of no effect. See <b>OPUO vs. NNPC (2002) FWLR (Pt. 84) 11 at 27; UNION BEVERAGES LTD vs. OWOLABI (1988) 1 NWLR (Pt. 86) 128</b>.</span><span style="font-size: 12pt; font-family: "Comic Sans MS";"> In </span><b><span style="font-size: 12pt; font-family: "Comic Sans MS";">ESIEVWORE vs. NEPA (2002) FWLR (Pt. 124) 398 at 408, </span></b><span style="font-size: 12pt; font-family: "Comic Sans MS";">the Supreme Court explained the position thus:-<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">“<b><i>Employment with statutory backing must be terminated in the way and manner prescribed by the relevant statute and any manner of termination inconsistent therewith is null and void and of no effect. But in other cases governed by only agreement of parties and not by statute, removal by way of termination of appointment or dismissal will be in the form agreed. Any other form connotes only wrongful termination or dismissal but not to declare such dismissal null and void.<o:p></o:p></i></b></span></p> <p class="NoSpacing1" style="text-align:justify;tab-stops:250.5pt"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="NoSpacing1" style="text-align:justify;tab-stops:250.5pt"><span style="font-size: 12pt; font-family: "Comic Sans MS";">Accordingly, in master and servant relationship, dismissal from the employment without compliance with the agreed procedure in the condition of service </span><span style="font-size: 12pt; font-family: "Comic Sans MS";">amounts merely to wrongful dismissal but does not render the dismissal null and void. </span><span style="font-size: 12pt; font-family: "Comic Sans MS";">See </span><b><span style="font-size: 12pt; font-family: "Comic Sans MS";">EZE vs. SPRING BANK PLC (2012) All FWLR (Pt. 609) 1076; UZONDU vs. U.B.N PLC (2008) All FWLR (Pt. 443) 1389</span></b><span style="font-size: 12pt; font-family: "Comic Sans MS";">. <o:p></o:p></span></p> <p class="NoSpacing1" style="text-align:justify"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="NoSpacing1" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">From the foregoing, it is obvious that the aspects of reliefs 1 and 2 asking this court to declare the Claimant’s dismissal null and void, of no effect and to make an order setting aside the dismissal cannot be granted in view of the nature of the Claimant’s employment. The only allegation which consideration can be given in relief 1 is whether the dismissal of the Claimant was wrongful.</span><span style="font-size: 12pt; font-family: "Comic Sans MS";"> Therefore, in considering the Claimant’s allegation with respect to his dismissal, the task is limited only to determine whether the dismissal is wrongful or not.</span><span style="font-size: 12pt; font-family: "Comic Sans MS";"><o:p></o:p></span></p> <p class="NoSpacing1" style="text-align:justify"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">The cause of dispute in this suit was the dismissal of the Claimant from the Defendant’s employment through </span><span style="font-size: 12pt; font-family: "Comic Sans MS";">the Defendant’s letter dated 19<sup>th</sup> September 2013</span><span style="font-size: 12pt; font-family: "Comic Sans MS";">. The letter is in evidence as Exhibit A. It reads:<o:p></o:p></span></p> <p class="MsoNoSpacing"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-indent:.5in"><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">“To: Valentine Mmadinobi,<o:p></o:p></span></i></b></p> <p class="MsoNoSpacing"><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";"> Owerri Mini Centre.<o:p></o:p></span></i></b></p> <p class="MsoNoSpacing"><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";"> </span></i></b><b><i><span style="font-size: 4pt; font-family: "Comic Sans MS";"><o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:.5in"><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">LETTER OF DISMISSAL<o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">We refer to your invitation and subsequent appearance before the Disciplinary Committee (DC) sitting of 5<sup>th</sup> September 2013 regarding your role in the sale of ZTE MF 190A modem above the company’s stipulated retail price and credit sale.<o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="text-indent:.5in"><b><i><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></i></b></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">You are hereby informed of management’s decision to dismiss you from the company with immediate effect for conversion of customers’ fund and concealment of financial records which constitute acts of gross misconduct.<o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><b><i><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></i></b></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">You are required to complete all handing over formalities and to hand over all company’s properties and documents in your possession to specialist, Resources & Partnering (SS/SE) immediately. These include but are not limited to your ID card, papers (including copies), keys and other properties relating to the business of the company, its business and customers.<o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><b><i><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></i></b></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">You are also to desist from holding out yourself as an employee of the company from the date of this letter.<o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><b><i><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></i></b></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">Yours faithfully,<o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">For: Emerging Markets Telecommunication Services Ltd.<o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><b><i><span style="font-size: 8pt; font-family: "Comic Sans MS";"> </span></i></b></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">signed_________________<o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">AUTHORISED SIGNATORY”<o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><b><i><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></i></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">It is clear from the above content of the dismissal letter that the Claimant was dismissed from the Defendant’s employment for act of gross misconduct. The offences constituted in the allegation conversion of customers’ fund and concealment of financial records.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size: 12pt; font-family: "Comic Sans MS";">The Claimant filed a reply to the statement of defence on 14/4/2014. It appears to me that the Defendant’s counsel is not aware of this fact or is out for mischief when counsel submitted in his final address that the Claimant did not file a reply to the statement of defence which failure should be considered an admission of the allegations of fact in the statement of defence. I find that the Claimant did file a reply. A fundamental error was however committed by the Claimant when he failed to file a witness statement alongside the reply in respect of the facts stated in the reply. The evidence given by the Claimant is not in the same page as the facts pleaded in the reply. As it is, there is no evidence in support of the facts pleaded in the reply.</span><span style="font-size: 12pt; font-family: "Comic Sans MS";"> It is trite that pleadings which are not supported by evidence are deemed by the Court as having been abandoned and same should be struck out. See <b>NEPA vs. ADEBGERO (2003) FWLR (Pt. 139) 1556; I.N.E.C vs. A.C (2009) All FWLR (Pt. 480) 732 at 803; OLANIYAN vs. OYEWOLE (2011) All FWLR (Pt.589) 1076 at 1105. </b>Consequently<b>, </b>the Claimant’s reply to the statement of defence is hereby struck out.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">From the totality of the case presented by the Claimant, his allegations against his dismissal are as follows: </span><span style="font-size: 12pt; font-family: "Comic Sans MS";"><o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.5in"><span style="font-size: 12pt; font-family: "Comic Sans MS";">i. The conditions of service are contained in the letter of employment and Compliance and Ethics Code. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.5in"><span style="font-size: 12pt; font-family: "Comic Sans MS";">ii. The Defendant did not comply with the rules and regulations contained in the Defendant's Compliance and Ethics Code in the dismissal of the Claimant. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.5in"><span style="font-size: 12pt; font-family: "Comic Sans MS";">iii. The dismissal letter was not signed by Abigail Isokpan or any person with authority to do so. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.5in"><span style="font-size: 12pt; font-family: "Comic Sans MS";">iv. The Claimant did not convert any customer’s money or conceal any financial record of the Defendant. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify;text-indent: -.5in"><span style="font-size: 12pt; font-family: "Comic Sans MS";">v. The offences for which he was dismissed are not enough to justify a dismissal.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-indent:-.5in"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="NoSpacing1" style="text-align:justify;tab-stops:47.25pt"><span style="font-size: 12pt; font-family: "Comic Sans MS";">The Claimant pleaded the Defendant’s Compliance and Ethics Code in paragraphs 5 and 10 of the amended statement of facts and averred that it contains rights and privileges including promotion, discipline, salary and emoluments. The Claimant also averred that his dismissal was done in violation of the Compliance and Ethics Code. The document is in evidence as Exhibit E. An original copy of the same Compliance and Ethics Code was admitted in evidence from DW2. It is Exhibit L. I have examined the entire content of the Compliance and Ethics Code but I cannot find any provision therein to support the case of the Claimant. The Claimant averred that the code contains, among others, provision for discipline of staff but that appears not to be the case. There is nothing in the code on how staff of Defendant is disciplined or on what basis or offences a staff of the Defendant can be dismissed. </span><span style="font-size: 12pt; font-family: "Comic Sans MS";">Again, the Claimant stated that the offence for which he was dismissed does not merit a dismissal. This allegation is also not supported in the Code. I also do not find anywhere in the Code where it is provided that dismissal must be in writing or on how the letter of dismissal must be signed. </span><span style="font-size: 12pt; font-family: "Comic Sans MS";">Therefore, I cannot find any merit in the Claimant’s allegation that t</span><span style="font-size: 12pt; font-family: "Comic Sans MS";">he Defendant did not comply with the rules and regulations contained in the Defendant's Compliance and Ethics Code in his dismissal. <o:p></o:p></span></p> <p class="NoSpacing1" style="text-align:justify;tab-stops:47.25pt"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="NoSpacing1" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">It is a settled principle in employment cases that the terms of the contract of service are the foundation or the basis for a claim for wrongful termination or dismissal from employment. Therefore, where an employee is asking the court to declare his dismissal wrongful, the allegation must be founded on the terms of the condition of service. In other words, where wrongful termination of employment or dismissal from employment is alleged, the terms of a contract of service are the usual source or foundation in deciding whether the dismissal or termination was wrongful. The termination or dismissal can only be wrongful when it is done contrary to the condition of service. It is therefore the duty of the employee alleging wrongful dismissal to bring his case on the terms of the condition of service which he must plead and prove and also plead and prove the manner in which the terms and conditions of the contract were breached by the employer in his dismissal. See the following cases on this point: <b>UZONDU vs. U.B.N PLC (2008) All FWLR (Pt. 443) 1389; W.A.E.C vs. OSHIONEBO (2007) All FWLR (Pt. 370) 1501 at 1512. </b>In<b> TEXACO NIG. PLC vs. KEHINDE (2002) FWLR (Pt. 94) 143</b> <b>at 157, </b>it was held thus:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";">“The terms of the contract of service are the foundation of any case where the issue of wrongful termination or dismissal of employment falls to be determined. Therefore where an employee complains that his employment has been wrongfully terminated or dismissed, he has the onus to produce before the court the terms and condition of employment and follow same up by proving in what manner the said terms and conditions were breached by the employer. It follows therefore that the success or other wise of such a party depends solely on the terms and conditions of that employment since the court is not permitted to go outside the agreed terms and conditions”. </span></i></b><b><i><span style="font-size: 12pt; font-family: "Comic Sans MS";"><o:p></o:p></span></i></b></p> <p class="NoSpacing1" style="text-align:justify;tab-stops:47.25pt"><span style="font-size: 12pt; font-family: "Comic Sans MS";"> </span><span style="font-size: 4pt; font-family: "Comic Sans MS";"><o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size: 12pt; font-family: "Comic Sans MS";">In this instant case, the Claimant founded his case on the Defendant’s Compliance and Ethics Code and he alleged that his dismissal was contrary to the provision of the Code. I find however that there is nothing in the Code with which to consider the Claimant’s case. In other words, the content of the Code does not have any provision which supports the Claimant’s allegation that his dismissal was wrongful for non-compliance with the terms of the code. The Claimant’s counsel, in his final address, made quite interesting digression from the Claimant’s case. Counsel based his arguments on the content of Exhibit K and argued that the dismissal of the Claimant was not in compliance with the procedure for discipline stipulated in Exhibit K. This exhibit is the Defendant’s Human Resources Policy Manual whose admissibility was objected to by the Claimant’s counsel when it was tendered in evidence by the Defendant. Let me mention it that the Claimant did not plead Exhibit K neither did he found his case on Exhibit K. Again, the submissions of the counsel on the content of Exhibit K in relation to the Claimant’s dismissal were not pleaded or given in evidence by the Claimant. What the Claimant pleaded and found his case on is Exhibit E, which is the Compliance and Ethics Code. Surprisingly, the Claimant’s counsel did not make any mention of the Code in arguing the Claimant’s case but rather shifted the Claimant’s case on Exhibit K. In fact, the Claimant’s counsel made a totally different case for the Claimant in his written address. It is trite that parties are bound by their pleadings and they cannot be allowed to urge a case different from the one raised in their pleadings. See <b>SALIBA vs. YASSIN (2002) FWLR (Pt.94) 168 at 183; OLANIYAN vs. OYEWOLE (supra) at 1100. </b>Anything outside the pleading of the Claimant goes to no issue and must be ignored.<b> </b>Evidently, the Claimant’s counsel realized that the code is of no use in the Claimant’s case, hence the attempt to change the Claimant’s case in his address. Counsel cannot make out a case not pleaded or given in evidence by a party in his address before the court. The address of counsel is never a substitute for pleading or evidence. Therefore, no matter how persuasive or well presented, address of counsel cannot take the place of pleading or evidence. See <b>AGBOOLA vs. U.B.A PLC (2011) All FWLR (Pt.574) 74 at 89; CITIZENS INT’L BANK LTD vs. SCOA NIG LTD (2006) All FWLR (Pt.323) 1680 at 1698. <o:p></o:p></b></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><b><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></b></p> <p class="NoSpacing1" style="text-align:justify;tab-stops:47.25pt"><span style="font-size: 12pt; font-family: "Comic Sans MS";">It was rather the Defendant who pleaded Exhibit K and averred that </span><span style="font-size: 12pt; font-family: "Comic Sans MS";">the Claimant was duly dismissed for gross misconduct in line with the provisions of the Defendant’s HR policy manual, which Manual contains list of infractions and the sanctions applicable in the event of a breach of the provisions contained therein. The Claimant converted the money of the Defendant’s customer and failed to record it in the Defendant’s financial record book. The Defendant’s Internal Audit Department conducted an investigation into the allegation and the Claimant was found to have committed the infraction of conversion and suppression of financial records contrary to the HR policy after he was invited to appear before the Disciplinary Committee. The offences are punishable with dismissal and the Claimant was accordingly dismissed in line with applicable sanction under the defendant’s HR policy. I do not see the need to consider the Defendant’s defence in the circumstance of this case. To do that will amount to an attempt to put a burden of proof on the Defendant. It is not the duty of the Defendant to prove that the dismissal of the Claimant is in accordance with the terms of the condition of service. It is rather the primary duty of the Claimant who asserts and is seeking a declaratory relief to prove his assertion before the onus of proof will shift to the Defendant to justify the dismissal. See </span><b><span style="font-size: 12pt; font-family: "Comic Sans MS";">TEXACO NIG. PLC vs. KEHINDE (supra) at 160. </span></b><span style="font-size: 12pt; font-family: "Comic Sans MS";">In this case, the defence offered by the Defendant becomes irrelevant when the Claimant could not establish that his dismissal breached any condition of service of the employment.</span><span style="font-size: 12pt; font-family: "Comic Sans MS";"><o:p></o:p></span></p> <p class="NoSpacing1" style="text-align:justify;tab-stops:47.25pt"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size: 12pt; font-family: "Comic Sans MS";">As it is, the Claimant’s allegation that his dismissal was wrongful has no foundation. The Claimant’s case is weak in the circumstance and his claim for a declaration that his dismissal was wrongful ought to be dismissed at this point. It is my view and I so hold that the Claimant has not been able to establish that his dismissal was wrongful. </span><span style="font-size: 12pt; font-family: "Comic Sans MS";">The Claimant sought in reliefs (c) and (d) payment of unpaid salaries and <s>N</s>20,000,000.00 as</span><span style="font-size: 12pt; font-family: "Comic Sans MS";"> general damages </span><span style="font-size: 12pt; font-family: "Comic Sans MS";">for wrongful dismissal. These claims also fail automatically i</span><span style="font-size: 12pt; font-family: "Comic Sans MS";">n the absence of proof that his dismissal was wrongful. In conclusion, </span><span style="font-size: 12pt; font-family: "Comic Sans MS";">I find that the Claimant is not entitled to his claims having failed to establish them. The case fails completely and it is accordingly dismissed. No order as to cost.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size: 12pt; font-family: "Comic Sans MS";">Judgment is delivered accordingly.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size: 12pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size: 12pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><b><span style="font-size: 13pt; font-family: "Comic Sans MS";">Hon. Justice. O. Y. Anuwe<o:p></o:p></span></b></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size: 12pt; font-family: "Comic Sans MS";">Judge</span><b><span style="font-size: 12pt; font-family: "Comic Sans MS";"><o:p></o:p></span></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS""> </span></p> <p class="MsoNormal" style="text-align:justify;line-height:normal"><span style="font-family:"Comic Sans MS""> </span></p>