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JUDGMENT The Claimant instituted this action by way of a Complaint in this court on 2nd February 2017. His claims against the Defendant are as follows: (a) A Declaration that the Claimant did not commit any misconduct or dereliction of duty as Area Manager Distribution Manager (AMDM) in the Defendant 's company with regard to his management of activities of distributors/dealers in Aba or Owerri or any other distributor/dealer of the Defendant. (b) A Declaration that the termination of appointment of the Claimant from the Defendant's company by the Defendant through a letter dated 5/12/2016 is wrongful, unconstitutional, malicious and null and void. (c) An Order of court that the said letter of appointment dated 5/12/16 be set aside. (d) An Order of court granting that the Claimant be recalled/restored to his duty position as Area Manager Distributor Manager (AMDM) without any loss of rank or benefit. Or in the alternative to the above reliefs, (e) Special and general damages made up as follows: (i) The value of unpaid emoluments calculated at the monthly rate of N1,464,000.00k (One Million Four Hundred and Sixty Four Thousand Naira) from the date of the termination of appointment to the date of final determination of this suit. (ii) N20,000,000.00k (Twenty Million Naira) being special damage; for loss of anticipated earnings of the Claimant in the brewery industry. (iii) N50,000.000.00k (Fifty Million Naira) being general mages for wrongful termination of appointment. Upon being served with the originating processes, the Defendant on the 14th day of March 2017, entered appearance and filed a Statement of Defence and Counter-Claim vide a motion for extension of time. This was duly regularized by order of court on the 4th day of April 2017. Meanwhile, the Claimant filed a Reply and Defence to Counter-Claim on the 24th day of March 2017. Hearing commenced on the 24th day of May 2017. Parties called one witness on each side. The Claimant testified for himself as CW1 One Mr. Adekunle Seun, a staff of the Defendant testified on behalf of the Defendant as DW1. Hearing ended on the 9th day of November 2017, and after parties closed their cases, Final Written Addresses were ordered, in accordance with the Rules of court. The Defendant/Counter-Claimant filed its Final Written Address on the 14th day of November 2017. The Claimant’s Final Address was filed on the 21st day of December 2017. The Defendant filed a Reply on points of law on the 17th day of January 2018. These were duly regularized and parties adopted their respective written addresses on the 22nd day of January 2018. THE CLAIMANT’S CASE: The facts of the Claimant’s case, as contained in his pleading and the evidence of the Claimant himself as CW1, are as follows: The Claimant was employed by the Defendant on 29th September 2004 as a sales executive/business accounts manager. The Claimant’s employment was confirmed 6 months later. During the employment, the claimant was transferred to various states locations of the defendant and he served the Defendant diligently as a result of which he was rewarded with promotions. By a letter dated 14th August 2012, he was promoted as the Distributor Development Manager for Aba/Owerri. In his position, he did not hold final decision on dealers/distributors accounts and depot logistics but he reported directly to Mr. Peter Letsuwa who is the Distributor Management Director. In the course of his duties sometime in the months of June and July 2016, he discovered large quantities of expired Origin RTD product of the Defendant in the depot of Pattoria Nig. Ltd, a distributor of the Defendant, at Umuahia. He reported his discovery to his superior manager and director and demanded for urgent evacuation of the products. His request was not approved till late in September 2016 by then the distributor was wiping off the BB date of the Origin drink and was selling them to the public thereby damaging the reputation of the Defendant. The Claimant took the matter up with the Distributor Manager for Umuahia who covers the area where Pattoria Nig. Ltd operates and also informed the Defendant through his superior directors, but the Defendant failed to take necessary action The Claimant was issued a query by Mr. Rahman Dauda, a Divisional Sales Manager who was not the Claimant’s direct superior. The Claimant responded to the query. Thereafter, on 16th September 2016, the Claimant and his subordinate managers were suspended from duty for 10 days on the instructions of Mr. Rahman Dauda. The Defendant investigated the incidence using the security personnel. The Claimant was invited and interviewed. The offending distributor absolved the Claimant from complicity in the incidence. It was the delay of the Defendant to evacuate the expired products that permitted the staff of Pattoria Nig. Ltd to alter the BB date and continue the sale of the expired drinks to the public. Upon resuming from the suspension, Mr. Rahman Dauda ordered the Claimant to proceed on another 10 days suspension. This time around, it was the Claimant alone that was suspended. After the 2nd suspension was over, the Claimant was discharging his duties when he found out that the Defendant had written a letter dated 13/10/2016 to the distributors introducing one Hassan Adeniyi as the new Area Manager Distributor Manager (AMDM). On 2nd November 2016, the Claimant was invited to face a disciplinary panel which sat on 3/11/2016. The Claimant presented his case and thoroughly explained his role in the discovery of the expired products. Although the condition of service required that he should be informed of the findings of investigation within 5 days, and if found guilty, warning letter be issued, he did not receive any communication from the panel informing him of the verdict in the matter. The Claimant did not receive any previous warning to warrant the stiff penalty of termination of his appointment. He was suspended twice and recalled. He was subjected to double jeopardy. Before he was given the letter terminating his employment, his superior managers, Peter Letsuwa and Rahman Dauda, had informed him at Oxygen Hotel Owerri that his appointment has been terminated. The condition of service has provided procedure for handling of infractions or misconducts in the company. The steps in the discipline of staff were not complied with. The Claimant made efforts to have the termination reviewed but it failed. His solicitor wrote a letter to the Defendant to demand withdrawal of the termination letter and for his reinstatement but the Defendant refused to reply. The Claimant did not commit the allegations leveled against him by the Defendant for which he was suspended. He was punished without any just cause. By the termination of his employment, he has lost the benefit of future services in the Defendant or in any other industry in Nigeria. He has also suffered damages by way of loss of salaries, allowances and gratuity. His reputation and image has also been ruined and he has been exposed to emotional stress. He is thus entitled to damages and compensation for the wrongs done to him. DEFENCE AND COUNTER CLAIM: The Defendant filed a statement of defence to the claims of the Claimant and also filed a counter claim against the Claimant. In the statement of defence and the evidence of Adekunle Seun, a Payroll and Employee Relations analyst with the Defendant, the case of the Defendant is that the Claimant was an employee of the Defendant and was the Defendant’s South-East Area Manager, Distributor Management at the time of termination of his employment. As the Area Manager, Distributor Management for South-East, the Claimant was the head of the Distributor Manager Team in the South-East Region. He had direct responsibility for Distributors in the Region and he reported to the Distributor Management Director who is based in Lagos. In his position, the Claimant works independently and he is involved in decision making. On 1st September 2016, Mr. Rahman Dauda, Acting Divisional Sales Manager-East, of the Defendant, visited the Distributors’ outlet in Umuahia and he discovered mismanagement of the Defendant’s products at Pattoria Nig. Ltd, one of the distributors of the Defendant. Mr. Rahman Dauda discovered 15,000 cases of almost expired or short dated origin RTD large Sku; 8,600 cases of expired origin large Sku; 276 cases of expired Guinness African Special; availability of FES small bottle with best before date of September 2016 in the Distributors outlet, tampering with or wiping off the best before date from 326 cases of origin large in the sales office and rubbing off of the best before date done in one of the warehouses of the Distributor. The Claimant had covered up his negligent act but it was the visit of Mr. Rahman Daudu that exposed these anomalies in the Distributors outlet. The Claimant was negligent in his duties by failing to detect the acts of wiping of best before date in products in the Distributors outlet under his direct control and supervision and he did not comply with the best standard practice of the Defendant in discharging his duties. On 15th September 2016, the security team of the Defendant commenced investigation into the incidence and the Claimant was suspended from duty for 10 days from 16th September 2016 in line with the disciplinary policy of the Defendant. The suspension was with full pay and all benefits to allow for smooth investigation. The suspension was not an indictment or punishment. After completion of investigation, the Claimant was issued a query on 28th October 2016. The Defendant has the right to hire and fire. After full investigation and fair hearing afforded the Claimant, the investigation panel recommended termination of the Claimant’s employment. The Claimant was entitled to 2 months notice or salary in lieu of notice which the Defendant complied with in the termination letter. The Claimant collected the termination letter but did not acknowledge it and also refused to collect the cheque in the sum of N786,712.06 representing 2 months’ salary in lieu of notice. The Claimant was negligent in discharging his duties and he failed to supervise those under him or to make constant reports to the Defendant. The Claimant was invited to face disciplinary panel and he did. The 2009 condition of service relied on by the Claimant is obsolete as it has been replaced by a condition of service made in January 2014. The Defendant complied with its disciplinary policy 2015 with respect to the Claimant. In the counter claim, it is the Defendant’s case that the Claimant was a former employee of the Defendant. His employment was terminated in a letter dated 5th December 2016. In the course of the Claimant’s employment, the Defendant allocated an official Toyota Corolla car with registration number FKJ 722 AR to the Claimant. The Defendant is the owner of the car. The Claimant was also issued a HP EliteBook laptop 820 G2 with serial number 5CG5531NZG by the Defendant in July 2016 to facilitate the Claimant’s work. The laptop also belongs to the Defendant. At the termination of the Claimant’s employment, he was required to submit the company’s properties in his possession to the Defendant including the car, laptop, identity card and a USB modem. The Claimant has detained these items despite having been given notice to surrender them in the termination letter. Upon the termination of the Claimant’s employment, his final account statement was prepared and it shows that the Claimant is indebted to the Defendant to the amount of N446,094.08. The Defendant desires the return of its properties and consequently counter-claims for the following reliefs against the Claimant: (a) AN ORDER of court compelling the Defendant to return all Counter- Claimant's properties, viz a Toyoto Corolla Car with Registration No FKJ722 AR, company identity card issued to the Defendant, HP Elite Book 820 G2 Laptop with serial No 5CG5531NZG and a USB Modem to the Counter-Claimant forthwith. (b) The sum of N200,000.00k per month representing the value of the loss of the use of the items listed in paragraph 12 (a) calculated on a monthly basis from 5th December 2016 until the items are returned back to the Counter-Claimant by the Defendant. (c) The payment of the sum of N100,000.00 per month representing the monthly depreciation value on the vehicles and the Laptop wrongfully detained by the Defendant. (d) In the alternative to reliefs (a), (b) and (c) above, an order of court mandating the Defendant to pay to the Counter-Claimant. (i) The sum of N4,000,000.00k (Four Million Naira) representing the current market value of the Toyota Corolla Car as at 5th December, 2016. (ii) The sum of N300,000.00k (Three Hundred Thousand Naira) representing the current market value of the HP Elite Book 820 G2 laptop as at 5th December, 2016 (iii) The sum of N15,000.00k (Fifteen Thousand Naira) representing the current market value of the USB Modem as at 5th December 2016 (iv) Interest calculated at 25 percent per annum on the above mentioned sums in (d) (i-iii) from 5th December 2016 until the date of Judgment. (e) N446,094,08 (Four Hundred and Forty-Six Thousand, Ninety Four Naira, Eight Kobo) being amount owed the Counter-Claimant by the Defendant after final Statement of Account of the Defendant with the Counter-Claimant was taken. (f) Interest at the rate of 25 percent per annum on the said amount owed the Counter-Claimant by the Defendant from the 5th day of December, 2016 until Judgment and thereafter 15 percent per annum from the date of judgment until full liquidation. (g) N5,000,00.00k (Five Million Naira) being general damages for detaining the said Counter-Claimant's properties aforesaid and denying the Counter-Claimant the use of the said properties till date and cost of bringing this Counter-Claim. CLAIMANT’S REPLY AND DEFENCE TO COUNTER CLAIM: The Claimant filed a reply to the statement of defence and defence to the counter claim. The Claimant also adduced additional evidence in support of the facts he averred in these processes. The Claimant stated in his reply to the statement of defence that in the discharge of his duties as Area Manager, Distributor Management, he did not act independent of his superior officer nor could he make any final decision. Prior to the visit of Mr. Rahman Dauda, he had discovered the expired products in the distribution outlet of Pattoria Nig. Ltd and he had informed the Defendant with a request for evacuation in an e-mail to his superior. During investigation, the offending Distributor had absolved the Claimant of blame in the issue. He was victimized because all the Area Managers and Retail Sales Managers under him and who directly oversee the offending Distributor were not indicted and they still retained their jobs with the Defendant. He was not negligent as he had requested the Defendant for evacuation of the expired products. He also ensured that the expired products were separated and were not sold. The termination of his employment was flawed and the disciplinary procedure of the defendant was not complied with. In defence of the counter-claim, the Claimant admitted paragraphs 3,4,5,6 and 7 of the counter claim but contends that since his employment was wrongfully terminated, he cannot be compelled to return the properties when issues have not been settled. The Claimant also contends that he is not indebted to the Defendant and that the Defendant is not entitled to the counter-claim. Upon close of evidence, counsels to the parties filed their final written addresses. DEFENDANT/COUNTER-CLAIMANT’S FINAL WRITTEN ADDRESS In the Defendant/Counter-Claimant Counsel’s final address filed on 14th November 2017, three issues were proposed for determination, as follows: 1. Whether the Claimant's cause/reliefs are proven or sustainable within the purview of his pleadings, evidence adduced and the law governing master-servant relationship. 2. Whether the Claimant's vague claim for damages be it special or general damages is legally sustainable in the context of master-servant cause. 3. Whether from the admission of the Counter-Claimant’s claims by the Claimant/Defendant and available evidence, the Counter-Claimant is not entitled to Judgment as per her Counter-Claim. Learned Counsel for the defendant/Counter-claimant started his argument on issue one by stating that in the Statement of Defence filed before this court, the Defendant canvassed the following defences, to wit: i. The Defendant has the right to terminate the employment of the Claimant for acts of negligent and acts inconsistent with the corporate image of the company. ii. The Claimant was afforded ample fair hearing prior to his termination. Apart from the query issued to him and his reply, he was invited to appear before disciplinary hearing and testified before the panel. iii. The Claimant also admitted that the allegations against him was made known to him before he appeared as well as the members of the panel and the investigating officer, was given a copy of the Disciplinary Policy of the Defendant and was informed of his right to come with a witness and was given fair hearing at the venue. iv. Having been afforded fair hearing, the Claimant need not be arraigned before a court of law, as the Defendant reserves the right to terminate the employment of the Claimant as envisaged by the disciplinary policy of the Defendant and the contract of service as well as case-laws on master-servant relationship. v. In consideration of the said defence, the Defendant denied the Claimant’s declaratory and monetary reliefs as well as the heads of damage claimed. Counsel submitted that the case of the defence was largely aided by the Claimant not denying the averments in the Statement of Defence, in addition to the evidence elicited from the Claimant under cross-examination which resolved any doubt that could have existed. It is the argument of counsel, that the cause of action resulting in this suit arose solely from master-servant relationship which presupposes a contractual relationship between the Claimant and the Defendant, and the evidence of the contractual relationship was tendered as exhibit before the court. Further, counsel relied on the cases of UNION BANK PLC vs. PROF OZIGI (1993) 3 NWLR (Pt. 333) 385 and OKUBUE vs. OYAGBOLA (1990) 4 NWLR (Pt. 147) 723; and contended that the jurisdiction of the court in contractual matters are limited to literal interpretation and enforcement of the terms and conditions of the written contract, as things that are extraneous to the contract cannot be imputed into it. Counsel at this juncture, referred the court to Section 128 (1) of the Evidence Act, 2011 (as amended). Again, counsel submitted that in this case, the terms and conditions of the endorsed appointment letter which is Exhibit M and the conditions of service for level 5 (M2) which is Exhibit T makes provisions for instances and circumstances in which the employment contract could be determined by the Defendant. It is counsel’s submission that the reason for the termination of Claimant's employment which he admitted is in relation to his negligent act on 24th May, 2017 during cross-examination. Counsel argued that the negligence of the Claimant amounted to gross misconduct under the disciplinary policy of the Defendant undermining the corporate image of the Defendant, deserving of termination of his employment. It is the contention of counsel that there are no fixed rules of law defining what amounts to misconduct which would justify a dismissal of employment, and it is sufficient if the conduct or the acts complained of is grave and weighty to undermine the confidence which will exist between him and his employer. See YUSUF vs. NATIONAL TEACHERS INSTITUTE (2002) FWLR (Pt. 129) 1509 @ 1526. It is Counsel’s submission that the Claimant admitted in court that the act complained of amounts to misconduct and will undermine the corporate image of the company, which is also a negation of the company’s best practices. Also, counsel stated that in the course of the cross-examination of CW1 on 24/5/17 he admitted that the best practices of the Defendant is to separate expired products from the non-expired ones, yet he flouted this best practices; and he oversees the distributors in the south east including Pattoria Nigeria Ltd where the incident happened Similarly, counsel contended that from the evaluation of available evidence in this case, the Claimant was given fair hearing before the termination of his employment, because he admitted the pleadings of the Defendant in this regard, did not deny in his reply, and during cross examination admitted that he was given fair hearing. In the same vein, counsel drew the court’s attention to pages 2 and 4 of the Report of the disciplinary hearing, and stated that the Claimant could not substantiate his evidence of the quantity of expired stock and could not debunk the evidence of the investigating officer that the expired stock and good beer were mixed as they were not quarantined and unlabelled. Also, at page 5 of the same report, the Claimant admitted that it is not a good practice for the Distributors’ Manager to replace the physical count with the numbers gotten and that he should be held responsible for the expired products that were not quarantined. Again, counsel relying on pages 7, 8, 9 and 13 of the Disciplinary Report, submitted that the Claimant admitted being aware of the wiped off BB date on 1/9/2017, and that the empties of produce whose BB dates were wiped off were found at the Distributors location by Mr. Rahman Dauda who discovered all the anomalies, and that both before the Disciplinary hearing and this Court, the Claimant failed to show any evidence that he reported to the Management the anomalies discovered by Mr. Rahman Dauda when he visited Pattoria Nigeria Limited on 1/9/2016. It is counsel’s submission that where a party pleaded or relied on a piece of evidence or document and did not produce same, the court will presume that if the evidence is produced it will be unfavourable to the party. See Section 167 (d) Evidence Act and OCHIN vs. EKPECHI (2000) 5 NWLR (Pt. 656) 225 In this regard, it was submitted by counsel that documentary evidence is the hanger through which oral testimony is measured. In the instant case, the Disciplinary Report is the only document that can be used to measure the oral testimonies of the parties in this case as to whether the Claimant was given fair hearing. Counsel relied on the cases of OGUNDELE vs. AGIRI (2009) 40 NSCQR 427 at 449-450 and BUNGE vs. GOVERNOR OF RIVERS STATE (2006) 12 NWLR (Pt. 995) 573 in support of his submission. Counsel submitted that with respect to private employment cases, an employee’s misconduct need not be first tried in a court of law before terminating his employment. See ARINZE vs. FIRST BANK (2004) 12 NWLR (Pt. 888) 663 and ZIDEEH vs. RIVERS STATE CIVIL SERVICE COMMISSION (2007) 3 NWLR (Pt. 1022) 554. Counsel referred to the case of YUSUF vs. UNION BANK (supra) at 632 Where it was held that before an employer can dispense with the services of an employee all he needs to do is to afford the employee an opportunity of being heard before exercising his power of summary dismissal. Further, counsel argued that the Defendant having afforded the Claimant fair hearing, and empowered by the mutual contract of the parties to terminate the employment of the Claimant, no case has been made out to warrant grant of any of his reliefs. Also, counsel cited the case of TEXACO NIG. PLC vs. KEHINDE (2002) FWLR (Pt. 94) 143 at 160, where it was held that in the master-servant employment, the employer has the right to terminate the employment or dismiss the employee at any time whether with a reason or not. Counsel relied on the case of PETROLEUM TRAINING INSTITUTE vs. MATTHEW (2012) ALL FWLR (Pt. 623) 1949, and submitted that it is the law that where an employee complains that the dismissal is wrongful, he has to show that the dismissal was done in violation of the Condition of service, which the Claimant in the present case before this court has failed to prove. It is the contention of counsel that in a master and servant relationship, as in this case where the Claimant’s employment does not enjoy statutory flavour, the Claimant cannot force himself on the unwilling Defendant, therefore his declaratory reliefs and order for reinstatement cannot be maintained; as was held in OSISANYA vs. AFRIBANK (NIG) LTD (2007) 6 NWLR (Pt. 1031) 565 and OLANREWAJU vs. AFRIBANK NIG LTD (2001) 13 NWLR (Pt. 731) 691. At this point, counsel cited the case of OBAJE vs. N.A.M.A (2014) ALL FWLR (Pt. 732) 1811 at 1826, where the court distinguished between employment having statutory flavour where the court can declare a termination null and void, from a master servant relationship, which the court cannot so declare. See also OLANIYAN vs. UNIVERSITY OF LAGOS (2001) FWLR (Pt. 56) 808. Counsel argued on the strength of OGUNDIPE vs. NIGERIA TELECOM LTD (2016) NWLR (Pt. 817) 613, that the Claimant failed to plead the terms of his contract of service, and his employment can only be adjudged as master-servant relationship. On this basis, it is counsel’s argument that the allegation by the Claimant that he was singled out lacks merit because an employment terminated in line with the terms of the contract cannot be vitiated by malice or improper motive, since he who hire has right to fire; see OGUNDIPE vs. NIGERIA TELECOM LTD (Supra), and N.S.E. vs. OZAH (2014) ALL FWLR (Pt. 761) 1571. More so, counsel submitted that the Defendant on its own part, as provided for under the relevant rules and regulation, and pleaded in paragraph 13 of the Statement of Defence gave the Claimant two months’ salary in lieu of Notice which was covered by Zenith bank Cheque for the sum of N786,712.05k, admitted in evidence and Marked Exhibit "R", and the Defendant having complied with the rules on two months’ Notice or salary in lieu of Notice, the Defendant having chosen the latter, was right to have issued Exhibit R. In light of the foregoing, counsel urged the court to dismiss the Claimant's Claim as constituted, because they are not supported by pleadings and evidence. Regarding issue two, counsel argued that the claim for damages being a consequential relief is dependent on the success of the declarative reliefs and other orders sought, hence if the principal reliefs failed, then the consequential reliefs stand to suffer the same fate. See YUSUF vs. CO-OPERATIVE BANK LTD (1994) 7 NWLR (Pt. 359) 676. It was submitted by Counsel that the claim for special and general damages has been held to be improper heads of claim in breach of contract of master-servant employment. See OKONGWU vs. NNPC (1989) 4 NWLR (Pt. 115) 296 and KABEL METAL NIG LTD vs. ATIVIE (2002) 10 NWLR (Pt. 775) 250. Similarly, counsel argued that in breach of contract, the measure of damages is the loss flowing naturally from the breach, that is to say such loss that it is reasonably foreseen by the parties at the time of entering into the contract. Counsel cited the case of EKPEOGU vs. ASHAKA CEMENT CO (1976) 6 NWLR (Pt. 508) 280 at 293, where it was held that in a claim for wrongful dismissal, the measure of damages is normally the amount the plaintiff would have earned had the employment been terminated by Notice according to the contract as it is the duty of the plaintiff to minimize the damage he sustain as a result of wrongful dismissal. He further made reference to CHUKWUKAH v SHELL PETROLEUM (1993) 4 NWLR (Pt. 289) 512 at 538 Para D-G, where it was held thus: “Once the court holds that a servant’s employment was wrongfully terminated, he is entitled to damages. However, the servant is only entitled to what would have earned over the period of notice required to lawfully terminate his employment”. Counsel was of the view that in the extant case, the Defendant rightly as required by the condition of service gave the Claimant two months’ salary in lieu of Notice, hence the claim for general damages as claimed by the Claimant cannot be awarded and is liable to be set aside, see NDINWA vs. IGBINEDION (2001) 5 NWLR (Pt. 705) 140 and BARAU vs. CUBITIS NIG LTD (2004) 5 NWLR (Pt. 152) 630. Also, counsel submitted that the Claimant did not set out any particulars of special damages in his pleading, and special damages has been held to be a specie of damages which the law will not infer from the nature of the act, they must be pleaded specifically and proved strictly. See TANKO vs. MAI-WAKA (2010) 1 NWLR (Pt. 1176) 468. Thus, it is counsel’s contention that the claimant’s failure to plead and prove the special damages claimed to enable the court to calculate, as best and accurately as it can, the actual amount of the loss, is fatal to his case on it. See BLACKWOOD HODGE NIG PLC vs. OMUNA CONST. COMPANY LTD (2002) 12 NWLR (Pt. 782) 523. Counsel argued further that the Claimant having admitted that his negligent act is a serious one which undermined the corporate image of the Defendant, in addition to failing to adduce credible evidence of breach of his contract of employment, and the Defendant having offered two months’ salary in lieu of notice, the Claimant cannot be entitled to the declaratory relief sought. Counsel urged the court to resolve issue two against the Claimant and dismiss his claim with heavy cost. With regards to issue three, counsel submitted that the Counter-Claimant apart from the evidence of the DW1, also tendered Exhibit L, L1, L2, L3 and L4 through the CW1 himself, which are the allocation papers and proof of ownership in respect of the Toyota Corolla car with registration number FKJ722 AR. In the course of the trial, during cross examination on 24/5/17, the Claimant admitted being in possession of the Counter-Claimants properties even after termination of his employment. It is the argument of counsel that the Claimant’s admission of the fact that all the properties claimed by the Counter-Claimant are in his possession/custody has discharged the burden of proof on the Counter-Claimant as it relates to proof. Where a party is afforded opportunity, and neglects to rebut evidence presented by the adverse party, the court will deem such unchallenged evidence as admitted. See ALHAJI USMAN BUA vs. BASHIRU DAUDA (2003) 13 NWLR (Pt. 838) 657. Counsel argued further that the position of the law is clear that where there is no defence to a Counter-Claim, the court should admit the facts and evidence as provided as unchallenged and give judgment in favour of the Counter-Claimant, see ANAEGE vs. ANYASO (1993) 5 NWLR (Pt. 291) 1. In the same stride, counsel contended that in the Claimant’s defence to the Counter-Claim, he never denied his liability to the Counter-Claim, because in the defence to Counter-Claim, the Claimant admitted paragraphs 3, 4, 5, 6 and 7 of the Counter-Claim, while the other paragraphs were not also denied. SECTION 122 (2) Evidence Act 2011 (as amended) and the case of SUNDAY OLOGUN vs. JOHNSON FATAYO (2014) ALL FWLR (Pt. 749) 1155 were referred to by counsel in support of his assertion that facts admitted required no further proof. The admitted facts should be taken as established to form one of the agreed facts of a case. Counsel urged the court to give effect to the admitted fact, as they do not even require any further proof. Furthermore, counsel submitted that the Claimant has not shown that he is unaware of the demand by the Defendant to return the properties in his custody to the Defendant, and for this the Counter-Claimant rightly pleaded detinue and proved same. The courts was urged to award damages against the Defendant for detaining the chattels of the Counter-Claimant and order the Claimant to return the chattels in line with the decision in SKYE BANK PLC vs. AKINBANI (2016) ALL FWLR (Pt. 820) 1328. Counsel submitted further that the Counter-Claimant has by Exhibit V proved her entitlement to relief (e) endorsed in paragraph 12 of the Counter-Claim which is also in line with the evidence of DW1, and urged the court to rely on the unchallenged evidence of the Counter-Claimant as well as the documentary evidence tendered and admitted during the trial of the case. On the same note, counsel argued that the evidence elicited during cross-examination about the issue of maintenance of the vehicle and depreciation in value of the Laptop, should be disregarded by the court in conformity to the principle of law that evidence on facts not pleaded goes to no issue; as held in ALHAJI SANNI SAIBU vs. A. O. BAKARE (1984) 12 SC 187 at 194-196. It is the view of counsel that the Claimant had the opportunity to challenge the Counter-Claim of the Defendant, but failed to do so; and cannot by way of Cross-Examination elicit facts not pleaded, and urged the court to expunge the evidence elicited during cross-examination because parties are bound by their pleadings. See KYARI vs. ALKALI (2001) 11 NWLR (Pt. 724) 412 at 433-434. In the same vein, counsel urged that all the facts elicited during cross-examination as to 40 % gratuity should also be expunged as the Claimant did not join issues with the Defendant/Counter-Claimant in the pleadings, and the court will not depart from the case pleaded by the parties to found judgment on matters which are neither pleaded nor constitute issues as settled in the pleadings. See IBANGA vs. DEREIRE-SOLAR (1986) 4 SC 141. Also, counsel submitted that the Claimant in his Defence to Counter-Claim did not sufficiently deny, because it has been held in EL-TIJANI vs. SAIDU (1993) 1 NWLR (Pt. 268) 246, that for a denial to be effective and sufficient of an averment, such denial must be apt, precise, succinct, full and complete and not evasive and vague. Counsel also contended that a party will be entitled to interest claim in commercial transactions where the other party has held on to the money for some time. See ADEYEMI vs. LAW & BAKER NIG LTD (2000) 7 NWLR (Pt. 663) 33. It is the view of counsel that in the present case, the Defendant have held on to the said properties and indebtedness since the 5th day of December, 2016 till date, while the Counter-Claimant pleaded in paragraph 10 and 11, about the sensitive nature of the properties and the fact that they are needed on daily basis, which the Claimant/Defendant has denied them, thus the claim for pre-judgment interest can be sustained where it is expressly provided for or is contemplated by the agreement between them parties or under a mercantile custom. See A.G. FERERO vs. HENKEL CHEMICALS (2011) 46 NCCQR 822 at 839-840. With respect to the claim of post-judgment interest, counsel urged the court to give effect to ORDER 47 RULE 7 of the National Industrial Court of Nigeria (Civil Procedure & Rules) 2017, where the court is enjoined to give interest of not less than 10% per annum to be paid upon any judgment. In conclusion, counsel urged the court to grant the reliefs of the Counter-Claimant, and dismiss the claimant’s claim with cost. CLAIMANT’S FINAL WRITTEN ADDRESS The Claimant’s counsel filed his final address on the 21st day of December 2017, and raised 3 issues for determination, as follows: 1. Whether the Claimant's employment with the Defendant guided by the Conditions of Service in contract was observed in breach leading to the perverse consequence of relieving the Claimant of his job. 2. Whether the Claimant effectively discharged his general and specific obligations in the employ of the Defendant and entitled to be protected from malice and victimization. 3. Whether the Defendant is entitled to any counter-claim so as to benefit from his imprudent act of termination of Claimant's appointment when the finding of the committee is still challenged and Claimant not duly discharged nor paid his emolument. With respect to the first issue, counsel submitted that the Defendant wrongly claimed that Rahman Dauda discovered the stack and quarantined products which incident had earlier been reported by the Claimant to the Defendant through the line manager - Peter Letsuwa the Claimant's immediate boss and line of authority. Counsel submitted further that DW1’s admission under cross-examination is a clear demonstration that the Claimant acted in the best interest of the Defendant and could not therefore be charged for dereliction of duty or any query at all. It is counsel’s assertion that the Claimant was duly employed by the Defendant vide the letter of offer of appointment Exhibit 'M' and the contract was regulated and governed by the jointly agreed conditions of service for Guinness staff; and the parties in this case are bound to respect the terms of the contract embodied in the Conditions of Service for Management Staff. See S.I.H.L. LTD vs. NITEL TRUSTEES LTD (2015) 16 NWLR (Pt. 1486) 454 at 469 PARAS 8-D and SPARKLING BREWERIES LTD vs. UBN LTD (2001) 15 NWLR (Pt. 737) 539. Counsel contended that the Claimant served the Defendant diligently and earned promotions and award. He also maintained a good-service record prior the incident that occasioned the onset of hostilities. At the time of the issuance of the letter of termination of appointment, the Claimant was under no disciplinary sanction of the Defendant and the Defendant acted malafide as the Claimant’s termination of employment was actuated by malice. Also, counsel argued that the Claimant led evidence corroborated by the witness of Defendant (DW1) that the consignment detailing 15,000 cases of near expiration/short dated Origin RTD large Sku, 8,680 cases of expired Origin large Sku; 276 cases of expired Guinness African Special; availability of FES small bottle with best before date of Sept 2016 in the distribution outlet; tampering with/wiping off of the best before date from 326 cases of Origin large in the sales office, the rubbing off of the best before dates were quarantined at the Distributor’s warehouse but was noticed during the visit of Rahman Dauda. It is counsel’s submission that these admitted facts need no further proof in line with the decisions in NWANKVO vs. NWANKWO (1995) 5 NWLR (Pt. 394) 153 and OMEURI vs. OKO (2004) 13 NWLR (Pt. 890) 287. Further, counsel argued that in conformity with the provision of the Conditions of Service obtainable at the Defendant, the query issued to Claimant ought to come from his immediate line manger rather than what was issued, which came from one Rahman Dauda; and the Defendant's Disciplinary Policy forming part of the Conditions of Service was observed in breach, to the detriment of the Claimant in the following sections: Section 2. 2 Queries - page 3 The HRD in consultation with the BMC approves the issuance of a query by the line manager. The Employee Relations (ER) Manager drafts the query with input from the case manager, legal (where necessary) and in consultation with the line manager. The line manager sends the query to the employee(s) copying the -ER Manager. Section 2.3 (i) Informing him/her that a disciplinary hearing will take place including details of where and when the hearing is to be held, ensuring a minimum of 48 hours’ notice between the receipt of the notice and the time set for the hearing. Section 2.3 iv. Advising him/her that he/she is entitled to be accompanied by a colleague and a union representative to the hearing ... v. The employee facing the disciplinary committee must have a fair hearing and be given the opportunity to establish his/her innocence by having a fair opportunity to: (iii) Call his/her own witnesses and offer any other evidence. Page 5 of Exhibit Q Further on page 6 of Exhibit Q, Section 2.3 iii After the Hearing. Following the determination of the Hearing, the ER manager shall send all relevant documents relating to the hearing particularly the report containing the decision/recommendations of the DC as approved to the First point team/ CC&E team and HRBP for further action. A letter informing the employee of the outcome of the disciplinary proceedings must also be sent to him/her within 5 days. Counsel submitted that in the present case, none of the above provisions were complied with, owing to the fact that the Claimant was not permitted to invite Pattoria Nig. Ltd as witness. The letter of scheduling for the disciplinary committee meeting was issued and delivered to the Claimant on 2/11/2016. Exhibit N and the Hearing took place on 3/11/2016 a period less than 48 hours as provided under 2.3(i). It is counsel’s submission that the provisions of the Conditions of Service state in Section 2.3 (iii) on page 6 that a “letter informing the employee of the outcome of the Disciplinary proceedings must also be sent to him/her within 5 days, while the DC letter came vide the letter of termination of appointment dated 5/12/16; a period of over one month. Similarly, counsel submitted that the word 'must' is equivalent to ‘shall’ and, connotes a mandatory effect, meaning that the provision must be complied with, and failure of which will render such process incurably defective. See NDLEA vs. ZAKARI (2015) 7 NWLR (Pt. 1458) 361 at 373. It is counsel’s further contention that the Defendant breached the provisions of the contract intra parties, and urged the court to discountenance the Claimant’s employment termination letter (Exhibit U) and declare it null and void; because the court neither goes on a voyage of discovery nor does it engage in speculation, rather it depends on the materials placed before it in reaching its decisions. Counsel cited the following cases: 1. BANKE vs. AKURE NORTH LOCAL GOVT (2015) 6 NWLR (Pt. 1455) 400 at 423 PARA D-E 2. ONAGORUWA vs. ADENIJI (1993) 5 NWLR (Pt. 293) 317 3. NNPC vs. FAMFA OIL LTD (2003) FWLR (Pt. 155) 794. It is the view of counsel that the effect of breach of contract is quite distinct from the effect of termination of appointment as enunciated by the court in NIGERIAN SOCIETY OF ENGINEERS vs. OZAH (supra). The Claimant placed before the Court the terms of his contract and the manner in which the Defendant wrongfully breached the terms by refusing to abide by the rules set out in the Conditions of Service - Exhibit B. Even assuming that the Defendant acted within its precinct of power of hire and fire, there being no specific performance grantable by law in a master and servant relationship, the Defendant having not terminated the appointment of the Claimant in a manner warranted or provided by the contract, the Claimant is entitled to damages for breach of contract which is in contradistinction with damages for termination of appointment. From the foregoing provisions, counsel urged the court to hold that the Defendant has breached the terms of agreement encapsulated in the Disciplinary Procedure of the Conditions of Service of the Defendant and is liable in claims for restoration of the Claimant's appointment or liable for damages for breach of contract. Counsel referred to the case of NIGERIAN SOCIETY OF ENGINEERS vs. OZAH (supra) where it was held that the actual payment of the one month's salary in lieu of notice must be made contemporaneously with the service of the letter of termination of the appointment of the employee whose appointment was terminated. Terminal benefits or entitlement of the employee must also be actually paid to the employee on the date the employee is served with the letter of termination of the appointment. Counsel argued that in the instant case the Defendant merely promised to pay as demonstrated in Exhibit R via the issuance of a cheque which remains in the possession/custody of the Defendant. Counsel referred the court to the case of ADAMS O. IDUFUEKO vs. PFIZER PRODUCTS LTD (2014) 12 NWLR (Pt. 1420) 96 at 118 PARAS A-F, where the Supreme Court stated thus: “In a contract of employment, the element of unlawfulness arises where in carrying out the decision to terminate the employment, the employer or the employee fails, neglects or refuses to adhere to the principles laid down by: a)… b) the terms of the contract as contained in the letter of employment in a case of an ordinary contract of employment” Counsel urged the court to resolve issue 1 in the affirmative and find in favour of the Claimant. Regarding issue two, counsel asserted that the Claimant served the Defendant meritoriously for twelve (12) years during which period he earned awards and promotions and diligently carried out his functions as per the duty guidelines and operational procedures of Defendant's organization, and the Claimant took cognizance of the stock levels at Pattoria Nig. Ltd and raised a sales promotion, as admitted under cross-examination by DW1. Further, counsel contended that an employee who complains that his appointment was wrongly terminated has the onus to place before the court the terms and conditions of the contact of employment and to prove the way and manner those terms were breached by the employer as held in NDLEA vs. ZAKARI (2015) 7 NWLR (Pt. 1458) 361, and which the Claimant adhered to by pleading that his employment with Defendant was unfairly, unconstitutionally and wrongfully terminated on the 5/12/16; a fact not specifically denied by the Defendant. Again, counsel argued that the Claimant had subordinate managers who worked under him who also testified during the Disciplinary Committee Hearing that themselves and Claimant were aware of the quarantined stock, and that the warehouse is not directly under the custody of the Claimant and as such he could not be privy to any surreptitious and unwholesome act of rubbing off best before dates (BBD) of the products. It is the opinion of counsel that the Defendant sought to smuggle in through the filing process a purported letter - termed Query issued by Peter Letsua, which was not signed by the Peter Letsua. Counsel urged the Court to interpret the documents in their literal and ordinary meaning and indeed their grammatical meaning, as was upheld in the cases of ADEDOYIN vs. AFRICAN PETROLEUM PLC (2014) 11 NWLR (Pt. 1419) 415 at 442 PARAS B-C and SPDC NIG LTD vs. NWAWKA (2003) 6 NWLR (Pt. 815) 184. Counsel urged the Court to discountenance the letter and any of its calculated effect sought to be imposed on the court. In the same vein, counsel asserted that the staff in the Defendant's organization work as a team with established reporting line of authority, and he was not the final decision taker in any activity and must seek the authorization and approval of his superiors. The Claimant pleaded the facts of the employment and the terms and conditions of same and led evidence in proof that his appointment was wrongfully terminated. See AJI v CBDA (2015) 16 NWLR (Pt. 1486) 554 at 571 D-E It is the further submission of counsel that Rahman Dauda could not have seen or noticed the large consignment of unwholesome products on a cursory visit to Pattoria Nig. Ltd. when he was not directly in charge of the outlet, and there was no evidence on record that he visited any other outlet, a clear situation that the Manager's visit was merely a witch hunt, especially in view of the fact that the Claimant at the Hearing re-stated that he asked for evacuation when he found that they were unable to deplete the stock of near expiry products after the CMR. According to counsel, the Claimant relied on stock records submitted by his Distributor Managers (DM) particularly in Aba and Umuahia who had a direct responsibility over the Dealership outlet of Pattoria Nig. Ltd, and the Defendant misdirected itself when it looked away from the defaulters and indicted the Claimant for an offence he did not commit, because the Claimant was not the overall head and person responsible for the final determination of the process of evacuation of unwholesome products in the Defendant's company. The Claimant made the necessary communication but was not favoured with a response in reasonable time. Counsel urged the court to resolve issue 2 in favour of the Claimant. On issue three, counsel argued that the letter of termination of appointment of the Claimant was thrust on him via mail as no proper and effective delivery of same was done, and even though he appealed the purported letter of termination Exhibit M dated 5/12/16 he has not been paid his salaries in lieu of notice or any other emolument. In counsel’s opinion, the dispute between the parties having been brought to the court, can only be determined by judicial verdict in line with the provision of the Constitution of the Federal Republic of Nigeria 1999 (as amended) Section 6(6)b. Also, counsel submitted that the Claimant was issued with the necessary working gadgets at his work-station which can only be returned when there is a full discharge or severance of the Claimant's contract with the Defendant. This having not taken place, the Defendant cannot deprive the Claimant the lawful custody of any working materials including his identity card. Assuming without conceding that the vehicle and other items listed in the Defendant's Counterclaim is in the possession of the Claimant, counsel contended that the Claimant is entitled to exercise his right of lien to retain that which is in one's possession belonging to another till certain demands of the person in possession are satisfied. The unpaid Plaintiff's emoluments is his entitlement to retain the goods in his possession until the Defendant has paid his salaries and allowances. See NBA vs. GBENOBA (2015) 15 NWLR (Pt. 1483) 585 at 619 PARAS D-G and AFROTEC SERVICES NIG. LTD vs. MIA & SONS LTD (2000) 15 NWLR (Pt. 692) 730. According to counsel, the Claimant's full and final benefits - earned emoluments which include gratuity have remained unpaid till date. The Claimant contests any submission of figures which is not a consensual and mutual determination intra parties. Again, counsel submitted that the Defendant’s policy as regards the maintenance of vehicle is to the effect that vehicles are serviced and repaired by the Defendant's agents appointed for that purpose. The Defendant did not verify the true “health” situation of the vehicle before placing a demand on them. According to counsel, the said vehicle was collected by a driver- Chukwudi Ifecho who the Defendant fully recognized in Exhibit L, but made no effort at locating him. It is vexatious, high handed and vindictive for the Defendant to place the status and return of the vehicle solely at the feet of the Claimant. Counsel urged the court to find in favour of the Claimant, which in turn would make the counter-claim baseless, unfounded and without effect. Counsel went on that the primary object of an award of damages is to compensate the Plaintiff for harm done to him. A possible secondary object is to punish the Defendant for his conduct in inflicting that harm. Once a breach of contract is established as in the instant case, damages flow. See EMIRATES AIRLINE vs. NGONADI NO 1 (2014) 9 NWLR (Pt. 1413) 429 at 500 PARAS B-E. Contrary to the Defendant Counsel’s submission that the entitlement of the Claimant in the event that his suit succeeds is remuneration only on the period required for notice being two (2) months, Learned Counsel for the Claimant submitted that the quantum of damages in breach of contract is such that may be determined as being reasonable arising naturally from such breach, which in the extant case, the Claimant's claim head including psychological pains and trauma are relevant. See S.I.H.L LTD vs. NITEL TRUSTEES LTD (supra) According to counsel, the Claimant is not indebted to the Defendant in any form. He urged the court to discountenance the Counter-claim and dismiss same. Again, to counsel, the measure of damages is the pecuniary loss arising naturally from the breach itself. See AGU vs. GEN OIL LTD (2015) 17 NWLR (Pt. 1488) 327 at 341 PARAS C-D. Counsel urged the Court to hold that the Claimant has proved his case and is entitled to the reliefs sought. According to counsel, the Claimant is entitled to the award of damages for breach of contract as argued, even as his employment is not clothed with statutory flavour. Again to counsel, the Counter-claim when juxtaposed with the right of lien of the Claimant, fails, and ought to be dismissed with punitive costs. He urged the court to deliver judgment in favour of the Claimant. DEFENDANT’S REPLY ON POINTS OF LAW On the 17th day of January 2018, the Defendant’s Counsel filed a reply on points of law wherein he reacted seriatim to certain issues raised in the Claimant’s final written address. In response to the Claimant Counsel’s assertion that the evidence of the Claimant was corroborated by the DW1 to the effect that the products listed were quarantined, Counsel for the Defendant/Counter-Claimant submitted that the DW1 on 9/11/2017 during cross-examination stated that the said products were discovered in a separate room within the warehouse but not quarantined. Also, counsel submitted that the evidence of DW1 indicated that there was no report of any unwholesome products by the Claimant to the Defendant, and that the Claimant contrary to the position taken by the counsel only reported cases of wholesome products nearing expiration which he sought for and was given approval for depletion. Similarly, counsel contended that the evidence of DW1 during cross-examination is in tandem with the disciplinary hearing proceedings, and the Distributor Manager working under the Claimant gave uncontroverted evidence that he informed the Claimant of the unwholesome products which the Claimant refused to report to the Defendant. The distributor reported a case of evacuation to the Claimant, which the Claimant confirmed that the said request was not treated. To counsel for the defence, the Claimant’s counsel is only portraying the Claimant as blowing hot and cold at the same time, which is not allowed in law. Furthermore, counsel submitted that Mr. Peter Letsuwa did issue a query to the Claimant, which was also submitted during the disciplinary hearing, and assuming somebody else signed same for and on his behalf, it does not detract from the fact that it was in line with the disciplinary policy. Again, counsel argued that a concert reading of the disciplinary hearing and the mail of Adekunle Olawale on 16/11/2016 reveal that there was a tie as to whether to dismiss or terminate the appointment of the Claimant which led to another rounds of deliberation before the issue of termination was agreed upon, showing that there was no breach of the provisions of disciplinary hearing. It is the contention of counsel that the Claimant during cross-examination agreed that he collected the termination letter together with a photocopy of the cheque but refused to visit the company to endorse same and collect his cheques. Hence, the Defendant cannot be held liable for non-payment of the two month salaries in lieu of Notice, which said original cheque was tendered in evidence. Counsel’s opinion is that the Claimant having failed to report the anomaly to the Defendant, even on the face of such report to him by his subordinate, the Claimant ought to be held liable for the said negligent act, even as the Claimant during the disciplinary hearing was shown the letter from the Distributor requesting for evacuation of the unwholesome products, which the Claimant confirmed receiving but failed to act upon same. Counsel further submitted that the failure of the Claimant to tender any document evidencing any report of the said unwholesome products shows that there was no report to his superior as claimed by him, he also admitted to this lapse before the disciplinary hearing. In the event that the Claimant made such report but withheld such evidence, counsel urged the court to invoke the provisions of Section 167d of the Evidence Act, 2011 as amended. See N.S.C (NIG) LTD vs. INNIS – PALMER (1992) 1 NWLR (Pt. 21) 422. In the same vein, counsel submitted that the attempt by the Claimant's counsel to exonerate the Claimant from liability is unfounded even as he admitted during cross-examination that he was the overall head of his team in the South-East, as the only boss he has stays in Lagos. Counsel argued further that throughout the proceedings, there was no reliance on the principle of lien. As parties are bound by their pleadings, the court is only limited to issues raised by the parties in their pleadings. See the following cases: 1. KYARI vs. ALKALI (supra) 2. IBANGA vs. DEREIRE (supra) 3. WOLUCHEM & ORS vs. GUDI & ORS (1981) 5 SC 291 at 320. Similarly, counsel contended that the Claimant did not at any time plead his gratuity, emolument or any other benefit, and the address of counsel no matter how eloquent cannot take the place of evidence. See ADEKAMBI vs. JANGBON (2007) All FWLR (Pt. 383) 152. According to counsel, the Claimant during cross-examination on 24/5/2017 admitted having the listed properties and that they all belong to the Defendant. What is admitted requires no further proof. See MAKANJUOLA vs. AYILORE (2001) 12 NWLR (Pt. 727) 416 at 436. Counsel went on that the Claimant during cross-examination on 9/6/2017, admitted in evidence that the current particulars of the vehicles are still with him, i.e. the renewal. The Claimant did not plead depreciation on the value of the vehicle. In any event, the Defendant valued the vehicle and other properties as a second-hand not as a new vehicle or Laptop or modem. Counsel urged the Court to dismiss the Claim of the Claimant and enter judgment for the Defendant as per the undefended Counter-Claim. COURT’S DECISION Having examined the case presented by both parties and having also reviewed the submissions of the counsels to the parties in their final written addresses in the case, I am of the view that the sole issue to be determined in this case is whether the parties have proved their claims as to be entitled to the reliefs they seek against each other in this case. I will consider the Claimant’s claims first. From the facts of the case, it is not in dispute that the Claimant was an employee of the Defendant. Exhibit A is the Claimant’s employment letter. The Claimant was employed by the Defendant with effect from 1st November 2004. There is also no dispute on the fact that the Claimant’s employment was terminated by the Defendant with effect from 6th December 2016 vide the letter dated 5th December 2016 which is Exhibit J. The complaint of the Claimant in this case is with respect to the termination of his employment. From the evidence adduced by the Claimant, his grouse against the termination of his employment are that he did not commit any misconduct which will result to the termination of his employment and that the condition of service provided for disciplinary procedure on allegation of misconduct but the procedure was not complied with in the termination of his employment. It was in view of these complaints against the termination the Claimant sought the reliefs in this case. In reliefs 1 and 2, he sought from this court declarations to the effect that he did not commit any misconduct or dereliction of duty as Area Manager Distribution (AMDM) and that the termination of his appointment is wrongful, unconstitutional, malicious and null and void. In reliefs 3 and 4, he sought for orders setting aside the termination letter and reinstating him to his position as Area Manager Distributor Manager (AMDM). These are the principal claims of the Claimant. I think the starting point in determining the claim of the Claimant is to first identify the nature of his employment. This task is important in view of these reliefs sought by the Claimant. In paragraph 2 of the statement of facts, the Claimant described the Defendant as a public liability company incorporated in Nigeria under the Companies and Allied Matters Act. I have also examined the Claimant’s employment letter and the condition of service in the employment tendered in evidence in this case. The facts and the evidence reveal that the Defendant is not a statutory entity but a privately owned company. The Claimant’s employment with the Defendant is therefore not one with statutory flavour but an employment relationship of master and servant. It is the law that in such an employment of master and servant, both parties thereto have the right to terminate the contract at any time and for any reason or for no reason at all. See TEXACO NIG. PLC vs. KEHINDE (2002) FWLR (Pt. 94) 143 at 160; IKHALE vs. F.A.A.N (2003) FWLR (Pt.181) 1726 at 1743; TEXACO OVERSEAS PETROLEUM UNLIMITED vs. OKUNDAYE (2003) FWLR (Pt.136) 961 at 972. It is also the law in master and servant employment that where there is a procedure provided in the employment contract for termination of the contract, non-compliance with that procedure amounts merely to wrongful dismissal or termination but does not render the act null and void. In ESIEVWORE vs. NEPA (2002) FWLR (Pt. 124) 398 at 408, the Supreme Court explained it this way: “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. See also OPUO vs. N.N.P.C. (2002) F.W.L.R (Pt.84) 11 at 27; UNION BEVERAGES LTD vs. OWOLABI (1988) 1 NWLR (Pt. 86) 128. Accordingly, where any of the parties in the employment exercised the right under the contract to terminate the employment, any breach in the manner of termination of the contract only renders the termination wrongful but the employment remains terminated and it cannot be revived. Therefore, given the nature of the Claimant’s employment, the reliefs where he sought that his employment be declared unconstitutional, null and void and an order reinstating him to his employment are not an appropriate remedy in view of the nature of the Claimant’s employment. These reliefs cannot be granted in this case. Consequently, the aspect of relief 2 where the Claimant sought that the termination of his employment be declared unconstitutional, null and void and reliefs 3 and 4 seeking the setting aside of letter of termination and for him to be reinstated have no place for consideration in this case. These reliefs are dismissed. In that case, the only aspect remaining to be determined with respect to the claims of the Claimant is whether the termination of the Claimant’s employment was wrongful. The Claimant averred that he was not negligent in his duties and did not commit the misconduct for which his employment was terminated. Relief 1 sought by him is premised on this assertion. From the case of the Claimant, he has insinuated that the employment was terminated for reason of misconduct. Exhibit J is the letter from the Defendant terminating the Claimant’s employment. It states in its first paragraph thus: “This is to formally notify you that your contract of employment with the company is hereby terminated with effect from 6th December 2016.” The Defendant did not give any reason in the letter for the termination of the Claimant’s employment. There is no indication in the letter that the Claimant’s employment was terminated on grounds of misconduct. The Claimant’s employment letter is Exhibit A. One of the terms of his employment is that after confirmation of his employment, any of the parties may terminate the service by giving 2 months notice in writing or 2 months’ pay in lieu of notice. It also contains that the Defendant may terminate summarily without previous notice should the Claimant fail to obey orders or is guilty of misconduct inconsistent with the well-being of the Defendant. Further to this, the Claimant pleaded the condition of service in paragraphs 22 of the statement of facts. The condition of service is Exhibit B. Paragraph 12 (a) of Exhibit B provides as follows: “The company may terminate the employment of a manager: (a) Without assigning any reason by giving the manager two months notice in writing or without previous notice by paying two months’ salary in lieu of notice.” In view of conditions of the employment in Exhibits A and B, the Defendant has the right under the contract to terminate the employment at any time and without any reason. The only requirement imposed on the Defendant for the exercise of the right is to give the Claimant 2 months’ notice in writing or pay him 2 months’ salary in lieu of notice. The Claimant’s employment was simply terminated without any reason given. Therefore, where the Defendant has exercised the right to terminate and did not assign any reason for so doing in the letter of termination, it is not the business of the court to inquire into the reason the Defendant might have for terminating the employment. The Claimant cannot read into his termination what is not contained therein by attributing his termination to a disciplinary action. It is trite that the court must confine the reason for termination of employment to the termination letter and cannot go out to look for a reason for the termination. In TEXACO NIG. PLC vs. KEHINDE (supra) at 167 it was held thus: “It is however well established in our laws that the right to terminate a contract of employment can be exercised by both parties to the contract. When it is exercised, no reason need be given. It is not for a court to search for the reason for the termination of the contract”. Also, in IWUOHA vs. MOBIL PRODUCING (NIG) UNLTD (2013) All FWLR (Pt. 664) 144 at 150-151, PER AKA’AHS JCA, held thus: “Learned counsel submitted that the lower court was right when it held that in considering the issue whether the termination of the appointment of the appellant was right or wrong, the court must confine itself to the letter terminating the appointment and not go outside it to look for other reasons which the appellant thinks or suspects may have been behind the termination. This represents the correct position of the law. It is settled that where no other reason is stated for the termination of appellants appointment, except that his services “were no longer required”, the court cannot go outside the said letter to discover the reasons for the termination”. See also CHUKWUMA vs. S.P.D.C (NIG) LTD (1993) 4 NWLR (Pt. 289) 512; CBN vs. AMIKA (2000) 13 NWLR (Pt. 683) 21. The Claimant narrated the incidence that led to the termination of his employment. He appears to contend that the termination of his employment was on disciplinary ground, which was the reason he stated that the disciplinary procedure was not followed. He also appears to say that the reason for termination was not justified. Although the Defendant has also averred that the Claimant’s employment was terminated as a result of his involvement in misconduct, but the Defendant did not give any reason in the termination letter for terminating the Claimant’s employment. Notwithstanding that the parties appear to agree that the Claimant’s employment was terminated for reason of misconduct or for disciplinary sanction, it is trite that the court cannot go outside the letter of termination to discover the reason for termination of the employment. See IWUOHA vs. MOBIL PRODUCING (NIG) UNLTD (supra); TEXACO NIG. PLC vs. KEHINDE (supra). Therefore, it is only when the Defendant gives the reason for terminating the employment in the letter to be on ground of misconduct or on disciplinary ground that the court can inquire into whether the disciplinary procedure stipulated in the condition of service was followed or if the reason for termination was justified. I have mentioned earlier that the obligation imposed on the Defendant when exercising the right to terminate the employment in the condition of service is to either give the Claimant two months written notice of termination or pay the Claimant two months’ salary in lieu of notice. Determining the Claimant’s employment without complying with any of these requirements will render the termination wrongful. The termination letter, Exhibit J is dated 5th December 2016. The Claimant was informed that his employment was terminated with effect from 6th December 2016. Taking the date of the letter and the effective date of the termination in consideration, the termination was with immediate effect. The Claimant was not given two months written notice as required in the condition of service. The termination letter however contains that a cheque in the sum of N786,712.06, representing 2 months’ salary in lieu of notice, has been issued in favour of the Claimant which he is to collect upon returning the Defendant’s properties in his possession. Going by the content of Exhibit J, the Defendant elected to pay the Claimant two months’ salary in lieu of notice. In paragraph 13 of the statement of defence, the Defendant pleaded that under the condition of service, the Claimant was entitled to 2 months notice or 2 months’ salary in lieu of notice which the Defendant complied with in the termination letter even though the Claimant collected the termination letter but refused to collect the cheque in the sum of N786,712.06 representing 2 months’ salary in lieu of notice. DW1 also gave evidence of these facts. From the case of the Defendant, it paid the Claimant two month’s salary in lieu of notice but the Claimant refused to collect the cheque. The Claimant did not controvert these averments of the Defendant in his reply to the statement of defence nor did he deny the allegation in his evidence. When the Claimant was cross examined, he said the termination letter was sent to him by courier along with photocopy of Zenith bank cheque. He was required to complete an exit clearance sent along with the termination letter before collection of payment. He also said upon receipt of the termination letter, he did not visit the Defendant’s office to collect the original cheque. The said cheque issued in favour of the Claimant for the sum of N786,712.06 representing two months’ salary in lieu of notice was tendered in evidence by DW1. It is Exhibit R. From the evidence before the court, the Defendant had issued a cheque meant to pay the Claimant’s two months’ salary in lieu of notice but the Claimant refused to pick up the cheque. The Claimant was aware that he was expected to collect the cheques, but for reasons best known to him, he failed to collect the cheque. In my view, the Defendant has complied with the condition of service when it issued the cheque for two months salary. Upon a through examination of the Claimant’s case, I do not find the termination of his employment to be wrongful. Consequently, in view of all the positions of the law applicable to the circumstances of this case as I have expressed above, I find and hold that the Claimant has not proved his claims in this case. Evidence has however shown that the said cheque issued in favour of the Claimant for the sum of N786,712.06 representing two months’ salary (Exhibit R) remains unclaimed. I hold that the Claimant is entitled to it. THE COUNTER CLAIM I will now consider the counter claim. I have earlier set out in this judgment the reliefs sought by the Defendant in the counter claim. I see no need to repeat them again. The case of the Defendant in the counter claim is that the Claimant was allocated a Toyota Corolla car with registration number FKJ 722 AR, a HP EliteBook 820 G2 laptop with serial number 5CG5531NZG, identity card and a USB modem for his use during the employment. The Defendant averred that these items are its properties but the Claimant refused to surrender them when his employment was terminated. The Defendant also stated that upon the termination of the Claimant’s employment, he was indebted to the Defendant to the amount of N446,094.08. From the Defendant’s case, the summary of the counter claim is for return of the Defendant’s properties in the possession of the Claimant and the payment of the debt of N446,094.08. In the Claimant’s defence to the counter claim, he admitted the averments of the Defendant in paragraphs 3, 4, 5, 6 and 7 of the counter claim. These facts admitted by the Defendant are these: i. The Claimant was allocated a Toyota Corolla car with registration number FKJ 722 AR and was issued a HP EliteBook 820 G2 laptop with serial number 5CG5531NZG, an identity card and a USB modem in the course of his employment. ii. These are properties belonging to the Defendant. iii. The Claimant was required to submit these items to the Defendant upon termination of his employment. iv. Notwithstanding the notice given to the Claimant in the termination letter, he has detained the properties up till date. Under cross examination, the Claimant stated that the Defendant’s property in his possession at the time of termination were Toyota corolla car with reg. No. FKJ 722 AR, a laptop HP EliteBook H20, a USB modem and the company identity card. These properties of the Defendant are still with him. It is trite that facts admitted do not require further proof. Therefore, it is proved fact that the said properties belong to the Defendant and the Claimant was required to hand them over to the Defendant when his employment was terminated. What the Claimant has contended however is that since his employment was wrongfully terminated, he cannot return the properties to the Defendant when issues have not been settled. From the defence of the Claimant, it is not in dispute that the Defendant’s Toyota Corolla car with registration number FKJ 722 AR, a HP EliteBook 820 G2 laptop with serial number 5CG5531NZG, an identity card and a USB modem are still in the Claimant’s possession. The Claimant knows the items belong to the Defendant but he has refused to give them up to the Defendant because he believes his employment was terminated wrongfully. In the letter terminating the Claimant’s employment, the Defendant demanded from the Claimant the return of the Claimant’s identity card and the properties of the Defendant in his possession but the Claimant didn’t return the properties up till date. It is now clear in this case that the termination of the Claimant’s employment is not even wrongful in the first place. Therefore, the Claimant’s continued detention of the Defendant’s property becomes unjustified. He must return the properties to their owner, the Defendant. I will grant the Defendant’s relief (a) seeking the return of the items instead of relief (d) where the Defendant claimed for the monetary value of the items. The Defendant’s reliefs (b) and (c) of the counter claim have not been proved. There is no evidence before the court to establish the sums claimed for loss of use and depreciation of the items. Relief (g) is also refused. The Defendant also sought the sum of N446,094.08 from the Defendant. The Defendant averred that upon the termination of the Claimant’s employment, his final account statement was prepared and it shows that the Claimant is indebted to the Defendant to the amount of N446,094.08. The said account statement is Exhibit V. In his defence to the counter claim, the Claimant denied the claim and averred that he is not indebted to the Defendant. In effect, the Defendant is required to prove the sum claimed against the Claimant. The only evidence adduced by the Defendant in proof of the claim is Exhibit V. The exhibit detailed the benefits due to the Claimant and his indebtedness to the Defendant. The Defendant deducted the debt from the benefits to arrive at the sum of N446,094.08 still being owed by the Claimant. The items and their sums constituting the debt, as stated in Exhibit V, are unearned 13th month, unearned housing and education allowance, unearned leave allowance, 2015 PAYE refund, unearned 13th month driver’s allowance and 40% part gratuity. The Defendant however didn’t furnish evidence as to the payment of these sums to the Claimant. The document is a mere computation done by the Defendant. It is not the proof of payment of the sums constituting the alleged debt to the Claimant. In other words, the Defendant did not satisfactorily show that the Claimant was indebted to the said items it included as indebtedness in Exhibit V. Therefore, I do not find sufficient evidence to support the claim of the Defendant for the sum of N446,094.08. In the final result of this judgment, I find that the Claimant has not proved his claims against the Defendant. They are accordingly dismissed. The Claimant is however entitled to payment of two months’ salary in lieu of notice, which had earlier been offered to him vide Exhibit R which remains unclaimed. The counter claim of the Defendant succeeds in part. While reliefs (b), (c), (d), (e) and (f) of the counter claim are dismissed for lack of proof and relief (g) is also refused, relief (a) of the counter claim is granted. Consequently I hereby make the following orders: 1. The Claimant is ordered to forthwith return the Defendant’s Toyota Corolla car with registration number FKJ 722 AR, HP EliteBook 820 G2 laptop with serial number 5CG5531NZG, company identity card and USB modem to the Defendant. 2. The Defendant is hereby ordered to pay to the Claimant, his two months’ salary in lieu of Notice. Parties are to each bear their respective costs for this action. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Judge