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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS DATE: SEPTEMBER 22, 2015 SUIT NO: NICN/LA/243/2014 BETWEEN Mr. Samuel Ambi Wuyah - Claimant AND First Bank of Nigeria Plc - Defendant REPRESENTATION Godwin Odebiyi for the Claimant. D.O. Ihegazi for the Defendant. JUDGMENT The Claimant’s claims as reflected on his General Form of Complain and endorsement of his statement of facts filed on 3/6/14 are for - i). A declaration that the summary dismissal of the Claimant by the Defendant is wrongful and unlawful. ii) An order of this Honourable Court compelling the Defendant to pay to the Claimant his full salaries and allowances due to him from the Month of January, 2010 to June, 2014 totaling N3,706,483.9 (Three Million Seven Hundred and Six thousand four hundred and eighty three naira nine kobo) only. iii) An order of this Honourable Court compelling the Defendant to pay to the Claimant his severance and gratuity due to him to be assessed by the Defendant in line with usual policy of the Defendant. iv) An order of this Honourable Court compelling the Defendant to unfreeze the Claimant’s account No. 2112020000622 with the Defendant. v) General damages in the sum of N2,000,000.00 (Two Million Naira) only for breach of employment contract. vi) Cost of this action. Claimant's Form 1 was accompanied by all the requisite processes and frontloaded documents. The Defendant entered an appearance on 8/8/14, filed its statement of defence and frontloaded all documents sought to be relied on at trial. The trial of this case commenced on 13/11/14 when the Claimant testified as CW1. He adopted his witness written deposition as his evidence in chief and tendered 20 documents as exhibits. The documents were admitted without objection and marked as Exh. C1-Exh. C20. It is the case of the Claimant that he was employed by the Defendant on 16th September, 1988 as an Office Assistant from where he rose through the rank till attaining the position of Head, Technical Support at the Katchia Branch of the Defendant located in Kaduna State; that it was while serving in that branch that the sum of Twelve Million, Twenty Five Thousand Naira (=N=12,025,000.00) was discovered missing from the vault of the Bank and subsequently he was dismissed from his employment after investigation was carried out. From the facts and the totality of the Claimants evidence, the Claimant claimed unaware of the existence of the fraud in the Branch. Under cross examination, CW1 stated that he was employed as a Messenger by the Defendant and was given Employee Handbook; that in 2004 he was posted to work as Head Technical Support at the Computer Room; that there was no letter to that effect; that he started work with Katchia Branch of Defendant in 2006; that after the Manager, the Accountant, he was the next in rank as a permanent staff in the Branch. According to the witness; the reason why the Auditor gave him query was that he did not blow whistle; that he told the Auditor he was not aware of any fraud in the Bank; that the key to the vault was given to him on 28/12/09 and the Auditor collected the key from him on 4/1/10; that he was not told money was missing until he was invited to Police Station where he was told what happened; that he took a loan from the Bank; that he was invited to Disciplinary Committee but not allowed to speak; that the Panel did not allow him to plead for leniency or say anything and that nothing came out of his complaint to the Public Complain Commission. The Defendant opened its defence on 13/11/14. Olufemi Oguntoyinbo an Employee Relations Officer of the Defendant testified as DW1. Witness adopted his witness deposition dated 8/8/14 as his evidence in chief and tendered four documents as exhibits. Three of the documents were admitted as exhibits and marked as Exh. D1-Exh. D3 while the fourth was marked Tendered & Rejected following a successful objection. The case for the defence is that the Claimant was a staff of the Defendant until his summary dismissal on 25/8/10 while serving as the Clerk at the Katchia branch of the Defendant on the grade level of an Office Assistant II; that consequent upon the fraud discovered at the Branch, the Claimant was placed on indefinite suspension without pay and he faced disciplinary panel which found him, along with the Branch Manager, culpable for breaching the Defendant’s operational guidelines in carrying out the vault transaction; that thereafter, the Claimant was issued a letter of summary dismissal following the recommendation of the Defendant’s Disciplinary Committee for the central role he played in the loss suffered as a result of the fraud of over =N=12 Million of depositor’s funds; that as part of the steps to mitigate its losses, the Defendant exercised right of lien over the Claimant’s entitlement (if any); that the Defendant was further constrained to place embargo on Claimant’s account No. 211202000622 and that the officers of the Defendant implicated in the fraud at the Katchia branch of the Defendant were similarly disciplined. Under cross examination, the witness testified that Exh. D1 indicates that Claimant was the Head of Technical Services; that Exh. D1 emanated from Defendant’s Head Office and from Head, Human Capital Management and Development; that he was employed on 9/8/93 and started work at Tincan Island Branch, then Oluyole Branch, Isolo Branch Lagos; that he worked in Abuja and Kano on special assignment; that it is the policy of the Defendant to give long service award but not automatic; that a staff on discipline will not be so awarded; that to his knowledge Claimant has never been issued query; that the core duty of Head of Technical Services include the functionality of the equipment, the computer system, generators and general technical operation of the Bank; that he does not know if Benjamin Okolie, Defendant Cluster Controller Manager did not discover any money missing when he visited Katcha Branch on 4/1/10; that Benjamin Okolie carried out functions of Auditor and that it was after 4/1/10 that Benjamin Okolie discovered that money was missing while reconciling his account. At the close of the trial on 13/11/14, learned Counsel on either side were directed to file their final written addresses in accordance with the Rules of Court for adoption. Defendant's final written address was dated and filed on 29/1/15. In it, learned Counsel set down the following two issues for determination - i. Whether the Defendant was right in summarily dismissing the Claimant from its employment having committed an act of gross misconduct contrary to the parties’ agreement as provided for in the Handbook. ii. Whether the Claimant has discharged the onus placed on him in proving his entitlement to the various reliefs and moneys claimed as benefits in the Statement of Claim bearing in mind that his disengagement from the Defendant’s employment was based on act of gross misconduct justifying summary dismissal. Arguing issue 1, learned Counsel submitted that the Claimant acted contrary to the contractual relationship contained in the Handbook (Exh. D2) since he was the controller and keeper for the time being when the fraud was committed; that the Claimant's action was a breach of his duty as an employee of the Defendant; and that Claimant's breach of his duty resulted into massive loss of the Defendant Bank's depositors funds. Counsel referred to paragraph 14.5 of Exh. D2 where it was stated that failure to report promptly any irregularity on the part of any other employee after having knowledge of such irregularity is an offence which attracts dismissal. With respect to the argument of the Claimant that no reason was given for his dismissal, learned Counsel submitted, relying on NITEL Plc v. Akwa (2006)2 NWLR (Pt. 964) 391, Commissioner for Works, Benue State v. Devlon Limited (1988)3 NWLR (Pt. 83) 407 SC and Abubakar Sadiq Ogwuche (Ed.); Compendium of Employment and Labour Law in Nigeria, 2006, that the authorities are unanimous that an employer can dismiss an employee for any reason or for no reason at all. It was the submission of learned Counsel that the conduct of the Claimant in the instant case amounts to gross misconduct, citing Co-Operative & Commerce Bank (Nig.) Limited v. Nwankwo (1993)4 NWLR (Pt. 286) 162; that Claimant's conduct amounts to an erosion of all known confidence a master could repose in a servant; that the right to dismiss an employee is solely within the employer's discretion and that the only caveat is that where a reason is given, the onus is on the employer to justify same relying on Babatunde Ajayi v. Texaco Nigeria Limited (1987)5 NWLR (Pt. 62) 577. In the instant case, learned Counsel submitted that the Defendant has made sufficient justification for the dismissal of the Claimant. Counsel urged the Court to accept same as valid and resolve this issue in favour of the Defendant, citing Alh. Rasak Abiola Ekunola v. CBN & Anor. (2013) LPELR SC.267/2005. On issue 2, learned Counsel submitted that Claimant is not entitled to any of his claims and adopted his earlier submission on issue 1. Learned Counsel cited Irem v.Obubra District Council & Anor. (1960)5 FSC 4 that dismissal carries infamy and deprives an employee the right to receive any payment as terminal benefits from the employer. Counsel urged the Court to discountenance the claim for =N=3,706,483.9 being salary and allowances for the month of January 2010 to June 2014 as being bogus. Respecting the claim for gratuity, Counsel submitted that the Claimant failed to plead relevant facts to his entitlement to same and how it is to be computed. According to Counsel, gratuity is usually paid to employee who retires from the service of an employer referring to P.A.N v. Oje (1997)11 NWLR (Pt. 530) 625 and that in a master/servant relationship it is a single lump sum paid in appreciation for long services and loyalty shown by the employee and to serve as an incentive to those still in service, citing Black's Law Dictionary, 9th Edition, 2009. Learned Counsel submitted that the circumstances for the departure of the Claimant does not support his claim for gratuity. Counsel urged the Court to so hold. Learned Counsel submitted, in the alternative, that in the unlikely event that the Court finds the dismissal of the Claimant wrongful, the only remedy available to the Claimant is in special damages and that in this wise the Claimant is only entitled to what the claimant would have earned during the period of notice as contained in the contract of employment between the parties. Counsel cited Ifeta v. Shell Petroleum Development Company Limited (2006)7 MJSC 12 at 149. Learned Counsel further argued that if the Court is wont to find for the Claimant in any way that by being found involved and culpable in the fraud perpetrated against the Defendant, the Defendant is entitled to exercise right of lien against any entitlement that may be found due to the Claimant. Counsel cited Afrotec Tech Services (Nig.) Limited v. Mia & Sons Limited (2000)15 NWLR (Pt. 692) 730 at 786. Counsel therefore argued that whatever sum that might be due to the Claimant in his account No. 2112020000622 and severance package are withheld by the Defendant as a fall out of the recommendation of the Disciplinary Committee's decision and in exercise of its right of lien. Counsel prayed the Court to dismiss the case of the Claimant as lacking in merit. The final written address of the Claimant was dated 11/2/15 and filed on 12/2/15. In it, learned Counsel set down a lone issue for determination as follows - Whether or not in the light of the evidence adduced before the Court, the Claimant is not entitled to the relief sought. Learned Counsel submitted that the Claimant had been consistent in his assertions that he did not have any inclination of what the Branch Manager was doing let alone of being aware of his fraudulent act; that the Panel finding in Exh. D1 did not support the punishment of dismissal meted to the Claimant; that the report of the Panel did not confirm Claimant's knowledge of the activities of the Branch Manager and added that where evidence given by a party to a proceedings was not challenged or controverted by the opposite party who had opportunity to do so, it is always open to the Court seised of the proceedings to act on the unchallenged evidence before it, citing Arewa Textiles Plc & 4 Ors. v. Finextex Limited (2003) FWLR (Pt. 162) 2000. It was the position of the learned Counsel that the answers given by DW1 when asked to tell the Court the duties of the Claimant as Head of Technical Support are corroborative of Claimant's assertion that he could not have been aware of the Branch Manager's fraudulent act; that even the Auditor of the Defendant who eventually discovered the fraud could not discover same promptly with his forensic analysis which the Head of Technical Support did not have and that the assertion that the Claimant did not know and could not be aware of Mr. Mohammed U. Sokombas' activities is cogent, credible and uncontroverted. Counsel relied on Arewa Textile Plc v. Finextex Limited (Supra), Alh. Musa Ya'u v. MacLean D. M Dikwa (2001)8 NWLR (Pt. 714) 127 at 154-155 & Union Bank v. Ogboh (1995)2 NWLR (Pt. 380) 647. According to Counsel, not only is it imperative that the Defendant believed that the Claimant committed the omission for which he was dismissed but there must be a ground for such belief and that Exh. D1 did not show how the Panel came to the conclusion that the Claimant was aware of the fraudulent activity of the Branch Manager and deliberately concealed same before the Panel recommended his dismissal; that at best that the Panel merely assumed that the Claimant ought to have been aware of the fraudulent activity of the Branch Manager and that the Defendant did not debunk the assertion that the Claimant did not know and neither was aware of the fraudulent act of the said Branch Manager Mr. Muhammed U. Sokomba. Counsel further pointed out that contrary to the content of Exh. C10 that Claimant was handed the second vault officer's key on 23/12/09, his response as contained in Exh. C11 was to the effect that the second vault key was handed over to him by the Branch Manager on 28/12/09 and that the Defendant did not contradict Exh. C11 not even under cross examination. Counsel submitted that that piece of evidence remains a good and reliable one which the Court is bound to accept, citing Ya'u v. MacLean D.M.Dikwa (supra). Counsel referred to Exh. C12 as providing the reason for the suspension of the Claimant and a chain of events leading to eventual dismissal of the Claimant by the Defendant and that the Defendant has failed to prove the reason which it is duty bound to prove before the Court. According to learned Counsel, the law is trite that once the Court finds that the termination or dismissal of an employee by his employer is wrongful, such employee is entitled to the arrears of salaries between the ineffective date of dismissal and the effective date thereof, citing NNB Limited v. Obevudiri (1986)3 NWLE (Pt. 29) 387 at 402. Counsel urged the Court to resolve the lone issue set down for determination in favour of the Claimant and enter Judgment for the Claimant as per his claims before the Court. On 19/3/15, the Defendant filed a 3-page reply address. I read, understood and found nothing of value in the said reply address to warrant inclusion in this Judgment. I read and understood all the processes filed in this case. I in addition listened to the testimonies of the witnesses called at trial as well as watched their demeanour and understood their testimonies. In like manner I reviewed and evaluated thoroughly all the exhibits tendered and admitted. All this is with a view to the just determination of this case. Having done all this, I here narrow the issues for the determination of this case down to mainly two thus - 1. Whether on the facts and evidence led the Claimant was wrongfully dismissed from the employment of the Defendant. 2. Whether the Claimant has proved the reliefs sought to be entitled to any or all of them. On issue 1, it remains trite that either party to a contract of service or a master/servant relationship may bring the contract to a close. All that is required is compliance with the terms especially regarding the giving of notice. See Akinfe v. UBA Plc (2007)10 NWLR (Pt. 1041) 185. Once this is done or the requisite payment is made in lieu of notice, neither party can complain that the termination of the relationship is wrongful. The right and power to dismiss an employee is a disciplinary power and it is inherent only in the employer, See Calabar Cement Co. Limited v. Daniel (1991)4 NWLR (Pt. 188) 750. The law is also trite and indeed well established that a master may dispense with the services of an employee for any reason and for no reason at all. This is on the principle that it is he who hires that can fire. This principle is backed by both statutory provisions and judicial authorities. See Section 11(1)(b), Interpretation Act & Ilesa L.P.A. v. Olayide (1994)5 NWLR (Pt. 342) 91 (CA). Where however, an employer offers reason for dismissing an employer, it is incumbent on the employer to prove same. See Institute of Health, Ahmadu Bello University Management Board v. Mrs. Jummai R. I. Anyip (2011) LPELR-1517 (SC). Now what was the reason given for the summary dismissal of the Claimant by the Defendant? Exh. C13 is the letter of summary dismissal. It was a 2-paragraph letter consisting of twenty four words. Paragraph 1 simply states thus - ''This letter serves to advise that you are summarily dismissed from this Organisation with immediate effect''. While the second states ''Please take note and be informed accordingly''. Although the terse letter gave no reason for the summary dismissal of the Claimant, the series of events culminating in the dismissal provided sufficient grounds as to the reason for Exh. C13. Now Exh. C10, a letter dated 8/1/10 with subject: ''Katcha Branch: Unusual Incidences Discovered in Your Branch Operation was a query issued to the Claimant. Part of this letter contained request for explanation on cases of money in the vault amounting to =N=14,365,000.00 which you failed to expose for possible intervention until it was detected on 4th January, 2010''. Secondly, Exh. C11 was Claimant's response to Exh. C10. It was dated 11/1/10. Claimant was subsequently issued Exh. C12 - a letter of suspension with a subject ''Re: Katcha Branch Cash Theft of =N=12,025,000.00 and Unauthorised Overdraft of =N=18,394,043.62 to Katcha Local Govt. Council''. It was dated 26/1/10. The last in these series of events was Exh. C13 the letter of summary dismissal. It is obvious from these series of communication that the unstated but rather apparent reason for the summary dismissal of the Claimant was Katcha Branch Cash Theft of =N=12,025,000.00 and Unauthorised Overdraft of =N=18,394,043.62 to Katcha Local Govt. Council as stated on Exh. C12. The Court cannot feign ignorance of or be oblivious to the fact that the Claimant was dismissed by the Defendant as a result of the various facts and events as stated above. Indeed on Exh. D1, the Claimant was alleged to have aided the perpetration of the fraud by concealing the Branch Manager's activities and failed to blow the whistle. It therefore becomes imperative for the Defendant to prove the ground for dismissing the Claimant. The rationale for this is much more important considering the serious consequences which dismissal carries with it. No doubt dismissal from service is akin to death penalty for capital offence in criminal prosecution. Dismissal carries with it some infamy and stigma in addition to the fact that a dismissed employee is denied of any form of disengagement entitlement from the employer. See Adeki v. Ijebu-Ode District Council (1962)1 SCNLR 349, Anite v. University of Calabar (2001)3 WLR (Pt. 700) 239 (CA), and UBN Plc v. Soares (2012)29 NLLR 329, Has the Defendant justified the summary dismissal of the Claimant before this Court? Are the facts before the Court sufficient justification of the punishment meted out to the Claimant? Was the Claimant seised with relevant information on the activities of the Branch Manager to be able to blow whistle and report to the Defendant? I examined the Defendant Witness Statement on Oath filed on 8/8/14 and found the following paragraphs instructive and germane - ''16. The Defendant states in response to paragraph 13 of his statement of facts that the Claimant was never at any time designated as Head, Technical Support and states further that: i. The Claimant's highest academic qualification throughout his employment with the Defendant was West African School Certificate (WASC) ii. The Claimant's highest grade while in the Defendant's employ was 'Clerk' (at his last promotion, his designation was 'office assistant') iii. As a Clerk, the Claimant was not in any way invested with any technical responsibility beyond the peripheral of cleaning and maintenance of the gadgets available in the Defendant's Katcha Branch's computer room. iv. The Defendant employed qualified Information Technology and computer trained personnel to work as Technical Support Staff at its business offices including Katcha Branch. The Claimant does not possess this requisite qualification''. ''22. Specifically, it is averred that the Claimant's involvement in the missing funds was as to his failure to blow the whistle on the conducts of his superior officers including the Branch Manager in the run up to the perpetration of fraud against the Defendant to the sum of over =N=12,025,000.00''. ''24. The Defendant admits paragraph 19 of the statement of facts but states that the decision to freeze the Claimant's Account No:2112000062 was a standard practice within the Banking Industry whenever the conduct of a staff is found wanting in relation to an investigation into any case of suspected fraud like the one discovered/unearthed at the Defendant's Branch where the Claimant played an active role''. ''37. The Defendant denies the averments in paragraph 32 of the statement of facts and states that apart from the Claimant's failure to report for duty during the period of his suspension, the half-salary paid into the Claimant's salary account had been set off against the Claimant's indebtedness to the Defendant on the various loans he took while in the Defendant's employ''. The averment in relation to the duties of the Claimant was corroborated by the evidence of DW1 under cross examination that ''The core duty of the Head of Technical Support Services include the functionality of the equipment, the Computer system, Generators and general technical operation of the Bank''. It was the argument of the Defendant that the Claimant was dismissed pursuant to paragraph14.5 of Exh.C2- Employee Handbook. That paragraph states, inter alia, An Employee may be summarily dismissed for certain acts of gross negligence. Such include Proven acts of theft, fraud, dishonesty, defalcations, irregular practices in respect of cash, vouchers, records, customers' account or foreign exchange transactions. The Defendant tendered 3 exhibits in proof of the rightness of the dismissal of the Claimant. Exh. D1 was the report of the Disciplinary Committee; Exh. D2 was the Defendant Employee Handbook while Exh. D3 was the letter written by the Defendant to the Public Complaints Commission dated 18/7/11. None of these exhibits provides justification for the summary dismissal of the Claimant on ground of proven cases of theft etc within the contemplation of paragraph 14.5 of Exh. D2. For, to be justifiable, the cases or allegations against the Claimant must be proven. That is the simple requirement of paragraph 14.5 of Exh. D2 and in the absence of which the dismissal stands wrongful. The fact remains that if the duties of the Claimant as averred by the Defendant the Claimant was not in any way invested with any technical responsibility beyond the peripheral of cleaning and maintenance of the gadgets available in the Defendant's Katcha Branch's computer room, how was he expected to know the rudiment of the work of the Branch Manager and the Accountant to be able to blow whistle when either or both officers of the Bank were committing fraud? The issues against the Claimant as stated on page 2 of Exh. D1 by the Chief Internal Auditor of the Defendant was that ''He failed to expose the BM's fraudulent act, despite that fact that he was abreast of all the actions being perpetrated by the Branch Manager''. There is no basis from the available evidence as contained in Exh. D1 to support the summary dismissal of the Claimant by the Defendant. It is important to point out that both the Branch Manager and the Accountant were handed over to the Police by the Defendant for prosecution and both, according to the Committee, ''... as the two custodians of the vault keys should be held accountable and liable for the missing =N=12,025,000.00 from Katcha Branch'' While the Claimant was not handed over to the Police, he was alleged to have aided the perpetration of the fraud by concealing the Branch Manager's activities and not blowing the whistle. To further buttress the fact that there was no justification for his summary dismissal, the Claimant in paragraph 22 of his statement on oath averred that while on suspension, he was invited for questioning by the Police at the Police Headquarters on 12/1/10 along with the new Branch Manager Isah Abubakar as witness for the Defendant; that he was made to confront the Accountant Danladi Yakubu and the former Branch Manager Mohammed Sokoma Usman and that both corroborated his statement before the Investigating Police Officer to the effect that he had no knowledge of how and when the funds in the vault were missing. In paragraphs 23 and 24 of the said Oath, the Claimant further averred that the Branch Manager and the Accountant repeated the innocence of the Claimant before the Commissioner of Police and the Claimant was told by the Police to go back to his work the Police having been satisfied with their investigation and his non-culpability in the fraud being investigated. These averments in paragraphs 22, 23 and 24 of the witness statement on oath of the Claimant were not challenged or impinged at the trial, not even under cross examination. Thus they remain good, credible and reliable evidence upon which the Court may act and will act in this matter. No doubt the Nigeria Police is the institution charged both statutorily and constitutionally to among other things investigate commission of crime and prosecute offenders. See generally Police Act, Laws of the Federation of Nigeria, 2004. See also Constitution of the Federal Republic of Nigeria, 1999 (as amended). If therefore, the Defendant had faith in the Police to do its work properly by reporting both the Accountant and the Branch Manager to the Police and still put the Claimant forward as one of its witnesses, it becomes unconscionable for it not to accept the findings of the Police that the Claimant was not culpable in the case reported for criminal investigation. Without mincing words and being pretentious, I dare say that the gap between the Claimant and both the Accountant and the Branch Manager is obviously a wide one. Claimant was an ordinary Clerk who invariably must take instruction from the Branch Manager. Besides, the schedule and nature of duties and responsibilities of the Claimant differ significantly from those of the two officers of the Defendant in this case. I may as well add that educational qualification of the Claimant coupled with his position as a Clerk does not appear to put him in a vantage position to be able to detect any fraudulent act on the part of both the Accountant and the Branch Manager so as to be able to blow a whistle as expected by the Defendant. The Claimant was not an Auditor or an Accountant of the Defendant. The Claimant was not a senior officer of the Defendant. The Claimant had no training or experience in auditing and neither was it his official responsibility to monitor the activities of both the Branch Manager and the Accountant. To therefore be suddenly dressed in a borrowed robe ( in the words of Williams Shakespare in Macbeth), not for the purpose of taking benefit, but for punishment is wrong and unconscionable. From the totality of the evidence before the Court, I find and hold that the summary dismissal of the Claimant by the Defendant on the basis of the Claimant's involvement in fraud pursuant to paragraph 14.5 of the Defendant's Employee Handbook - Exh. C2 is wrongful the reason for the summary dismissal not having been proved. Thus, I resolve the first issue as set down for determination in favour of the Claimant and against the Defendant. The second issue slated for determination is whether the Claimant has proved the reliefs sought to be entitled to any or all of them. The first relief sought by the Claimant is for a declaration that the summary dismissal of the Claimant by the Defendant is wrongful and unlawful. This relief has been addressed by the resolution of issue 1 slated for determination. The second relief is for an order of this Honourable Court compelling the Defendant to pay to the Claimant his full salaries and allowances due to him from the January, 2010 to June, 2014 totaling Three Million Seven Hundred and Six Thousand Four Hundred and Eighty Three Naira Nine Kobo (N3,706,483.9 ) only. Claimant was suspended on 28/1/10 and placed on half salary subject to his signing the attendance register daily. See Exh. C12. His summary dismissal was to be effective from 25/8/10. I have no evidence before me to the effect that the Claimant signed the Defendant attendance register daily and was not paid his half salary. Every claim must be proved by credible and admissible evidence to enable the Court to grant same. See Ike v. Ugboaja (1993)6 NWLR (Pt. 301) 539 at 541 & Agboola v. UBA Plc & Ors. (2011) LPELR - 9353 (SC). But beyond this, the Claimant sought to be paid salary for the period from the date of his summary dismissal to the commencement of this suit which is June 2014. The law is trite that an employee whose employment is determined by the employer cannot treat same as subsisting and continue to expect to be paid salaries. See Cooperative Bank Limited v. Nwankwo (1993)4 NWLR (Pt. 286) 170 & Olatunbosun v. NISER, Council (1998)3 NWLR (Pt. 80) 25. In the instant case, what will be the consideration for such salary for the Court to order its payment? This Court will not order salary to be paid to an employee for services not rendered. Such a claim as this does not find support in both the law as well as equity. At best, again as in the instant case where the Court has declared the summary dismissal of the Claimant as wrongful, all that the Claimant is entitled to is damages rather than payment of salary for the period the Claimant did not work for the Defendant. This relief is therefore refused and dismissed accordingly. The third relief sought is for an order of this Court compelling the Defendant to pay to the Claimant his severance and gratuity due to him to be assessed by the Defendant in line with usual policy of the Defendant. The Claimant in this case joined the services of the Defendant on 6/9/88, see Exh. C1. His employment was brought to an end on 25/8/10, see Exh. C13. A major difference between termination of employment and dismissal is that while with the former, an employee's entitled to all disengagement benefits with the latter the dismissed employee is entitled to nothing. It goes with the saying that where the dismissal of an employee is held to be wrongful it automatically entitles the employee to whatever end of service benefits and entitlement may be available. In the instant case, the Court has held the dismissal of the Claimant here to be wrongful. The Claimant is therefore entitled to be paid his severance benefit and gratuity. Claimant has not claimed any specific amount as his entitlement. The Claimant has only requested that same be calculated in accordance with the policy of the Defendant. Unfortunately, the said policy of the Defendant in relation to severance benefit and gratuity is not placed before the Court. I examined Exh. D2 which is the Defendant's Employee Handbook. This should ordinarily have provided a guide as to what amount, if any, the Claimant is entitled to as severance benefit and gratuity. Again, unfortunately, it appears there is no provision in that important document relating to severance package and gratuity for staff of the Defendant. On examination of the 67-page Employee Handbook, I found none and my attention was not drawn to any by the learned Counsel to the Claimant. In the absence of this, the Court is left to make an order in vaccum. In the absence of sufficient material and facts to guide the Court, this prayer is refused and is dismissed. The fourth relief sought is for an order of this Court compelling the Defendant to unfreeze the Claimant’s account No. 2112020000622 with the Defendant. In his witness statement on oath, Mr. Olufemi Oguntoyinbo admitted in its paragraph 34 that the Defendant stopped the said account of the Claimant. The reason offered was that the Claimant was indebted to the Defendant to the tune of =N=665,936.83 being outstanding loans and advances availed to the Claimant and that the loans were set off against the balance in the said account though not sufficient to liquidate the sum owed by the Claimant to the Defendant. Part of the submissions of the learned Counsel to the Defendant respecting this issue was that the Defendant was exercising its right of lien over the Claimant's account. The Defendant in this case did not file for counter claim against the Claimant. The Defendant merely made assertion of the alleged loans and advances to the Claimant. The law is trite averments in pleadings not supported by proof are deemed abandoned. See Okpoko Community Bank Limited v. Igwe (2012)1 NFLR 22 at 234. The Defendant did not lead any evidence in proof of its claim. There is no evidence before the Court as to how much was advanced to the Claimant. There is no evidence before the Court relating to how much was paid and how much outstanding. In any event, the so called right of lien of the Defendant was exercised by the Defendant on the premise of the summary dismissal of the Claimant. This Court has declared the said summary dismissal as wrongful in this Judgment. That being the case it stands to reason that the Claimant is consequently entitled to have his account with the Defendant defreeze. I hold that the Claimant is entitled to this prayer. The Defendant is here ordered to defreeze the Claimant's Account No. 2112020000622 with it immediately. The fifth relief sought is for general damages in the sum of Two Million Naira (=N=2,000,000.00) only for breach of employment contract. The law is trite that in an action for breach of contract of employment the measure of damages is the amount of what the Claimant would have earned if the requisite notice had been given. See Benin Electricity Distribution Company Plc v. Mr. Napoleon Esealuka (2013) LPELR-20159 (CA). General damages is not recoverable in breach of contract of employment in the absence of any special circumstances that call for the award of same. The Claimant did not prove any damage suffered by him from this breach of contract to support a claim for general damages. I find no special circumstances in this case to make this Court grant this prayer. Same is therefore refused and dismissed accordingly. The final relief sought is for Cost of this action. The law is trite cost ordinarily follows event and the Rules of this Court in Order 24 Rule 1 allows award of cost. Thus pursuant to the Rules of this Court the sum of One Hundred Thousand Naira (=N=100,000.00) only is awarded as cost of this suit payable by the Defendant to the Claimant. Finally, for the avoidance of doubt and all the reasons as contained in this Judgment, 1. It is here declared that the summary dismissal of the Claimant by the Defendant is wrongful and unlawful. 2. An order of this Honourable Court compelling the Defendant to pay to the Claimant his full salaries and allowances due to him from the January, 2010 to June, 2014 totaling Three Million Seven Hundred and Six Thousand Four Hundred and Eighty Three Naira Nine Kobo (N3,706,483.9 ) only is refused and dismissed. 3. An order of this Court compelling the Defendant to pay to the Claimant his severance and gratuity due to him to be assessed by the Defendant in line with usual policy of the Defendant is refused and dismissed. 4. The Defendant is here ordered to defreeze the Claimant's Account No. 2112020000622 with it immediately. 5. The claim for general damages in the sum of Two Million Naira (=N=2,000,000.00) only for breach of employment contract is refused and dismissed. 6. The sum of One Hundred Thousand Naira (=N=100,000.00) only is awarded as cost of this suit payable by the Defendant to the Claimant. All the terms of this Judgment shall be complied with not later than 30 days from the date delivery. Judgment is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge