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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA Before His Lordship: HON. JUSTICE O. A. SHOGBOLA JUDGE Date: 2ND FEBRUARY, 2015 Suit No. NICN/ABJ/15/2013 BETWEEN HUSSAINA YAKUBU CLAIMANT AND ARIK AIR LIMITED DEFENDANT REPRESENTATION Nkechi Udoh Esq with Oluchi Onanamadu for the Claimant. Mr. S. A. Gbajumo Esq for the Defendant. JUDGMENT The Claimant commenced this suit by way of a complaint dated and filed on 31st January, 2013 claiming against the Defendant as follows: (1) A Declaration that the Defendant unlawfully and maliciously dismissed the Claimant from their office. (2) A Declaration that the Dismissal of the Claimant was not in line with the provision in chapter 9 paragraph 9.6 of Arik (Nig) Limited Employee Handbook. (3) An Order of this Honourable Court compelling the defendant to reverse the word Dismissal used in Terminating the Claimant‘s Appointment, recall the Claimant while she shall be allowed to put in a resignation letter. (4) An order of this Honourable Court compelling the Defendant to pay the Claimant the sum of N173,125.00 (One hundred and seventy three thousand one hundred and twenty five Naira only) being the claimant’s unpaid two months’ salary for August and September, 2012 and the sum of N297,862.50 ( Two hundred and ninety seven thousand eight hundred and sixty two Naira fifty kobo only)being the Defendant’s part of the claimant’s pension contribution which has remained unremitted into the Claimant’s Pensions Account by the Defendant. (5) An order of this Honourable Court directed to pay the Claimant the sum of N86,562.50 (eighty six thousand five hundred and sixty two Naira fifty kobo only) for every month being the claimant’s monthly salary from the Month of November 2012 when the payment of the Claimant’s salary was stopped following her unlawful Dismissal in September 2012 until judgment was delivered in this case. (6) An order of this Honourable Court compelling the defendant to pay the Claimant the General Damages of N50,000,000.00(fifty million naira only) for the untold hardships and torture undergone by the claimant as a result of the unlawful termination of her appointment. (7) An exemplenary and punitive damages of N40,000,000.00 (forty million Naira only) against the defendant for maliciously terminating the appointment of the claimant based on unfounded allegation Attached to the complaints are: (a) Statement of Facts, (b) Witnesses’ statement on oath, (c) List of witnesses and (d) List of documents to be used at trial. By a motion on notice dated and filed on 10th June, 2013 moved and granted by the court, the defendant’s memorandum of appearance, statement of defense and other court’s processes were deemed properly filed and served. This case went on trial, the claimant testified in her case, while the defendant also called Mr. Fidelis Tanko, The Head of Investigation, Lagos as its witness. Parties adopted their final addresses on the 3rd November, 2014. In adopting his Final written address the learned counsel for the defendant formulated these issues for final written address to wit: (i) Whether the claimant was wrongfully dismissed on the circumstances of this case having regards to the facts and evidence adduced before this honourable court in this suit. (ii) Whether the claimant has proved and entitle to the reliefs sought in this case having regards to the facts and evidence adduced before this honourable court in this suit. In arguing issue one which is whether the claimant was wrongfully dismissed in the circumstance of this case having regard to the facts and evidence adduced before this honourable court in this suit the defendant referred to the claimant’s statement of facts in paragraphs 5-11, (a) Exhibit H1 (Letter of employment), (b) Exhibit H2 (Letter of Confirmation of Employment) (c) Exhibit H3 (Letter of Dismissal), (d) Exhibit H9 (Arik Air Employee’s handbook), (e) Exhibit H10 (Arik Air Human Resources Manual) (f) Exhibit H13 (Appeal for unlawful dismissal) (g) Exhibit H14 (Reminder of Letter of Appeal ) and (i) Exhibit T1( Defendant’s internal Investigation Report) as documents relevant to the determination of the issues raised in this suit. The defendant went further to refer the Court to the interpretation of gross misconduct in Chapter 13.3 and examples 6,7, and 8 in 13.4 Exhibit H10 (Arik Air Human Resources Manual) are relevant facts to this case. The defendant submitted that the claimant was given instruction to off load and destroy a boarding pass of a passenger moving from Yola to Lagos via Abuja who was no longer travelling and was at the Yola Ticketing Counter to modify her ticket for further use. The defendant said that the claimant did not do so but rather sorted out the exact boarding pass and negligently kept it on her desk and left. To the defendant, due to her act of disobedience to instruction which is contrary to company’s policy led to the boarding pass being allegedly stolen and subsequently sold to a passenger who intended to use same. The defendant contended that the claimants act of negligence on 7th July, 2012 which was a disobedience to specific instruction amounts to gross misconduct which is contrary to discipline at work in relation to Chapter 9.3 Arik Air Limited employee Handbook Exhibit H9, 13.3, and 13.4 Arik Air Limited human Resources manual (Exhibit H10) To the defendant the act of the claimant on 7th July, 2012 could cause and did cause damage to the business and reputation of Arik Air L[m[ted which is a ground that constitute gross misconduct. The defendant relied on the case of Mike Eze V. Spring Bank PLC (2011)12SC(pt1)173 at 192-193 where the Supreme Court held that “ In any case on the accepted general legal principles as employee may be summarily dismissed without notice and without wages if he is guilty of gross misconduct.” The defendant also cited the cases of Boston Deep Sea fishing Co. V Ansell (1888) 39 CH D 339 and Babatunde Ajayi V Texaco (Nig) Ltd & ors (1967) 3NWLR (pt 62) 577 where the Court held that:- A gross misconduct has been identified as a conduct that is of a grave and weighty character as to undermine the confidence which should exist between an employee and the employer, as to be working against the deep interest of the employer amounts to gross misconduct entitling an employer to summarily dismiss the employee. The defendant relied on chapter 9 of the defendant’s Employee handbook particularly on gross misconduct, that the claimant’s action of 7th July, 2012 is an act that constitutes gross misconduct that is failure to adhere to regulations and guidelines regarding the security of cash and or equipment/property belonging to the Department or service users for which the employee has responsibility and refusal to follow reasonable management instruction. That for this reason the court should hold that the claimant was responsible for the missing/ stolen boarding pass. That having submitted that the claimant’s conduct constitutes gross-misconduct the court should hold that the claimant was properly dismissed. The defendant went further to say that where there is a notice of dismissal or termination of appointment of an employee by the employer, it is not necessary for the employer to prove the reasons stated in the notice. The only obligation on him is to show that the contract was terminated in accordance with the express or implied terms of the contract regardless of whether the appointment is on permanent or probationary (temporary basis). Continuing, the defendant submitted that the Article 13.10 Part B of Exhibit H10 (Human Resources Manual) specifically provides for the procedure to be adopted in the event, that an aggrieved employee who is desirous of appealing any decision relating to dismissal. That a cursory look at Exhibit H13 (Appeal for Unlawful Dismissal) reveals a fundamental failure to comply with the provisions of the Article 13.10. In that the appeal Exhibit H13 was not addressed to the Vice-President Human Resources of the Defendant nor to the claimant’s immediate manager as required by Exhibit H1 neither was the appeal written within 5 days (five days) required from the date of letter of dismissal Exhibit H3. The defendant then submitted that the procedure to initiate a complaint or an appeal have not been complied with by the claimant before initiating this proceeding. Submitting further the defendant maintained that if the action of the claimants of 7th July 2012 amounts to gross-misconduct, having regards to the facts in this suit and exhibits H8 and H10 respectively, the defendant can dismiss the claimant from his employment relying on the case of Eze V Spring Bank PLC (Supra). The defendant went further to submit that the onus is on the employee who alleges wrongful termination of his appointment or wrongful dismissal to plead and prove the terms of contract of employment. Contending that the claimant’s submission that it was only the Vice-President or his delegate of sufficient Senior Level of Management is authorized to take a decision to dismiss an employee. That the dismissal letter dated 25th September 2012 from the defendant to the claimant was duly signed by the Human Resources/Administration manager who was a delegate of a Senior level management authorized to do same. The defendant also urged the court to disregard Exhibit H17 (Police Report dated 1st October 2012 ) as being irrelevant and intended to be sentimental. Contending that it was arranged and procured by the Claimant in anticipation of a dispute as to any fact which the statement might tend to establish. That the defendant never applied for Exhibit H17 and was not bound nor committed to same. That the date on Exhibit H17 is a date after the issuance and delivery of exhibit H3 (letter of dismissal) in respect of an event that had occurred three to four months earlier. The Defendant also contended that it had conducted and concluded its own internal investigation (Exhibit T1) simultaneously within the period of alleged police investigations in which the Claimant was involved by making statement to the police. In respect of issue 1 the defendant urged the court to answer the issues in the negative and hold that having regard to the facts and evidence the Claimant was properly dismissed. In respect of issue 2 which is whether the Claimant has proved and is entitled to reliefs sought in this suit, having regards to the facts and evidence adduced before this honourable court in this suit. The defendant submitted with regard to relief 3 that the claim runs contrary to plethora of Supreme Court and Court of Appeal decisions that held severally that the Court’s unwillingness to impose a master on a servant and vice versa. They went further to submit that on relief 4 and 5 the claimant has failed woefully to prove her case against the defendant in this suit worthy of this Honourable Court consideration to grant her reliefs as per her claim. That in respect of her (2) two Months’ salary of August and September 2012, Claimant admits that she received the sum of N86,562.50k ( Eighty six thousand five hundred and sixty two Naira fifty kobo). This shows that the claimant has been paid even though she was not entitled to that sum of money. The defendant urged the court to hold that the said payment represents the claimant’s August salary. To the defendant Chapter 13.3 of the defendant’s Human Resources Manual states that penalty for gross misconduct will be summary dismissal without notice or payment in lieu of notice and so the claimant cannot claim being owed by the defendant. On the claimant’s claim in the sum of N50,000,000.00( fifty million Naira) only from the defendant as general damages and punitive damages in the sum of N40,000,000.00 (forty million Naira) that the Defendant submitted. This must fail having regards to the circumstances of this suit. To the defendant, damages are awarded nominally by court to assuage for non compensatory claims proved in the course of the proceedings. That the claims cannot be granted where Claimant’s’ claims are specific which requires strict proof. That claims have failed for lack of credible evidence to support same. The defendant, therefore urged the court to dismiss this head of claims as lacking in merit, and the Court should hold that the c claimant is not entitled to any of the reliefs being sought in this suit. In conclusion the Defendant urged the court to dismiss the suit as lacking in merit, lacking incredible evidence in support of the claims: The claimant on her part through her counsel formulated three issues to wit: (i) Whether the Claimant has successfully proved that her employment was unlawfully terminated by the Defendant (ii) Whether the Defendant has raised any defense to warrant the court to deny the Claimant’s prayers. (iii) Whether the Claimant is entitled to all her reliefs. In respect of the first plea which is whether the claimant has successfully proved that her employment was unlawfully terminated by the defendant. The Claimant submitted that on the 7th of July 2012 while she was carrying out her duty as the Mars Controller, and equally gate boarding some previous flight before she received a call from her colleague Rahab Zamar who was off duty on the day instructing her to offload a transit passenger by name Mathias Cathrine who was no longer travelling from Yola to Lagos via Abuja and that the passenger at that point at the Yola Ticketing Counter to modify her ticket for further use . That not being sure of the message from Rahab and requested that the passenger ticket number be text to her to avoid mistakes. Claimant off loaded the transit boarding pass from the system and allocated the sit to another passenger. And on getting to the counter to destroy the Boarding Pass she could not see the boarding pass again. She asked her colleague Yosi Bala who said she did not see the boarding pass then went to the office and made a verbal report to the duty manager Mr. Ogaji Diavem further to Mr. Ogaji with a written details of the missing boarding pass who promised to pass the information to the security personnel at the boarding gate and to track down whosoever trying to use the missing boarding pass. The claimant further submitted that she reported the incident to the Turnaround Coordinator Mr. Bitrus Haruna. Having done this the claimant submitted that she was satisfied that she has disseminated the information in respect of the missing boarding pass to avoid it being used by any person for the flight scheduled to take off by 1800 hours. The Claimant then submitted that she was informed at 1830 hours by the Defendant that the missing Boarding Pass has become a security issue because somebody beats the security at the boarding gate to board the flight using the same Boarding Pass that was missing but based on the report of the Claimant impostor was apprehended, deboarded and handed over to the police and she too made a report to the police on the 9th July 2012. She returned to her job in the office and on the 25th of September 2012 she received a Dismissal Letter from the Defendant which was signed by the Human Resources Manager. Claimant submitted that she made effort to get the matter revisited but she was not given audience. She wrote a letter of Appeal for Unlawful Termination of Appointment dated 1st October 2012 to the Human Resources manager Exhibit H14. but the letter was not given any attention. The claimant further submitted that she sent a reminder to the earlier appeal dated 6th September 2012 to the Human Resources Manager Exhibit H13 which was ignored by the Defendant. The claimant also submitted that she also wrote a letter to the Station Manager Exhibit H15 which was not attended to by the defendant. The Claimant then asked the question as to what made his termination unlawful. To the Claimant, is the event of 7th July, 2012 which led to her dismissal amounts to negligence? On this the claimant submitted that the role she played on 7th July 2012 has not disclosed any form of negligence on her part to warrant her dismissal from the services of the Defendant as it was the sole event that led to her dismissal . The Claimant went on to ask if it is lawful to terminate the services of the claimant putting into cognizance Exhibit H17, the police investigation report which completely exonerated her. She claimed further that the Defendant DW1 was part of the police investigation as admitted in the second paragraph of their Exhibit T2 and still went on to dismiss the Claimant from his services. That the act of dismissing the Claimant after the police report had unraveled the truth position of event further made the dismissal unlawful and urge the court to so hold. The Claimant still went on to ask whether the procedure engaged in dismissing the claimant is in line with the Arik’s Employees Handbook and Arik Human Resources Manual. The claimant said that the defendant in paragraph 14 of the statement of defense stated that the transaction of 7th July, 2012 amount to gross misconduct on the part of the claimant in accordance to the Employees manual of the Ariks Handbook Claimant referred the court to paragraph 13.3 of the Human resource Employee Manual Which define misconduct as serious enough to prejudice the business or reputation of the Company and to damage the working relationship in particular the trust and confidence of the company in the employee. That the claimant who misplace the boarding pass and quickly alerted all the officers through whom the boarding pass could pass before it will be used, has taken an action to prejudice the business or reputation of the company and has damaged the relationship in particular, the trust and confidence of the company in the employee. This she answered in the negative. The claimant contended that the defendant completely violated the procedure provided for dismissing a staff in both their Employee’s Handbook and Human Resources Manual. At this junction the claimant referred the Court to paragraph 13.4 of the Human resources Manual which gave 19 examples of gross misconduct and the only two defendant claimed that the claimant is guilty of were; 1. Failure to comply to lawful and reasonable instructions and 2. Serious negligence in the performance of duty ( including such negligence resorting in serious injury or property damaged to the company, any fellow worker, third party or client) The Claimant then referred to paragraph 13.5 to the Defendant’s Human Resources Manual that provides that should a matter arise which may require disciplinary action; the employee will be provided with, a letter of allegation (query) and be invited to respond either in writing or at a disciplinary hearing. To the Claimant there was only one meeting between the claimant and the DW which shows that the disciplinary procedure was not followed. That the provision of paragraph 13.9 of the Arik Human Resources Manual provides that dismissal could only be exercised as a first recourse to instant or gross misconduct that only the Vice –President or delegate of a sufficiently Senior Level of Management is authorized to take a decision to dismiss an employee .That in the instant case the claimant was dismissed for gross misconduct and neither the Arik Vice-President nor his delegate signed the said letter of dismissal Exhibit H3. Rather it was signed by Human Resources Administration Manager not on behalf of the Vice President but on behalf of the Arik Air Limited. The Claimant claimed that there was no evidence to establish her failure to comply with lawful and reasonable instructions neither was there evidence to establish serious negligence on the performance of her duty and there was no damage to company’s property to any fellow worker, third party or client and urge the court to hold that her dismissal was unlawful. On the second issue which is whether the defendant has raised a successful defense against the claims of the Claimant. Claimant submitted that paragraphs 1-10 of the Defendant’s Statement of Defense only generally denied paragraphs 1-29 of the Claimant’s Statement of Facts. That the defendant did not frontally contradicts or denied those facts neither did they counter or give a reason , or give a version or story on these facts were not challenge or contradicted during the cross examination of the Claimant. That under our law those facts are deemed admitted. Also referred to the case of Ahmadu Alli V. Ahadu Saliu &2 Ors (2011) 1NWLR (pt 1228) pg. 227 at 234. The Claimant went further to summarise the Defendant’s Statement of Defense and submitted that the defendant raised two defenses against the Claimant’s claim. Continuing the Claimant argued that she exhausted all the channels of appeal against the overwhelming neglect of the Defendant. That Exhibit H15 (Letter of Appeal) was sent to the Human Resources Manager followed by Reminder Exhibit H16 to the Human Resource Manager but there was no reply to any of them. That her counsel also wrote to the Station Manager which was ignored. She went further to submit that she complied with the procedure for appeals in that as soon as she received her dismissal letter on Thursday 27th of September 2012. On 28 and 29th of September 2012 being Friday and Saturday, and 1st of October being a public holiday she submitted her appeal on the 2nd of October 2012 at the office of Human Resources Administrative Manager still within five working days required. Further on this issue, the Claimant submitted that at the time of this event on 7th July 2012 the last Vice-President of the Human Resources Department, Mr. Mark Graham left since 2009 and there was none who took over from him and it was the human Resources Manager that was Acting in the capacity of the Vice-President Human Resources. She further argued that the act of resulting to grievance procedure under the Defendant’s Rules before proceeding to Court is advisory and optional and not mandatory. Therefore urge the court to dismiss the Defendant’s claim that the Claimant’s claim is premature before the Court and further holds that the claimant has fulfilled all that is required of her and even if she did not he has the right to approach the Court. The Claimant submitted on the issues of damages that the Defendant in his Final Address argued that she is not entitled to any various damages. That is a well known Principle of Law that what governs every contract is the Contract of Employment and in the present case shows when the staff can be summarily dismissed without benefit. That the third to the last paragraph of Exhibit H1 clearly stated; Under this agreement any determined fraudulent act by the employee signed below, including the misrepresentation or withholding of information through the recruitment process amounts to summary dismissal without benefit. To the Claimant there is no clear reason why she was dismissed, no fraud was established against her, her case was not duly tried by any Panel and determined because even the Dismissal Letter which was hurriedly prepared and given to her show that the incident took place on the 9th of July 2012 as against 7th July 2012. That in such a situation the Claimant is entitled to all his entitlement. General Damages, Punitive and exemplary damages and the Court has shown the extent of punitive and exemplary damages in the case of JFK Investment Nigeria Limited v. Nigerian Telecommunications Limited (2009) 13 NWLR (pt 1164) 344 at 351. Claimant submitted that her wrongful dismissal has no basis and she must be compensated. On his third claim the Claimant submitted that reliefs 1&2 enjoined the Court to make a declaration to the effect that the Claimant was unlawfully dismissed where it has been proved that the dismissal was not only unlawful but also in contravention of the Employee’s Manual and Staff Handbook that having proved that the Claimant was wrongfully dismissed and it will be very unfair and unlawful to allow the Claimant go with the word DISMISSAL in her record which will automatically block her chances of getting another job as prospective employers usually demand the career history of whoever they want to employ and no employer would want to employ any person with the word dismissal from her former place of work. Claimant urged the court to compel the defendant to reverse the word DISMISSAL after having being called to put up her Letter of Resignation to the defendant and not come back to work permanently . In a situation where the Court is reluctant to do that adequate compensation by way of damages shall be awarded against the Defendant. In conclusion the Claimant urged the Court to grant her all her reliefs and dismiss the defense raised by the defendant. After a careful appraisal of the submissions, the processes and the evidence given in the suit the issues for this determination are: 1. Whether the claimant’s employment was lawfully brought to an end by the defendant 2. Whether the claimant is entitled to other reliefs sought. In respect to the first issue that whether the claimant’s employment is lawfully brought to amend by defendant, the Courts have held that an employee challenging the termination of his employment must plead and prove for purpose of clarity : (a) The terms and condition of his contract (b) Proved in what manner his said terms were breached by the employer. In other words the onus is on the employee to prove that his employment was wrongfully terminated. The claimant was employed by the defendant on 19th of October 2007 Exhibit H1. The said employment was confirmed by the defendant on the 31st of July 2008 Exhibit H2. The claimant remains in the said employment until 25th of September 2012 when she was dismissed from the services of the defendant. It is a settled law that an employer can bring an appointment of his or her employee to an end for any reason or no reason at all, provided the employer follows the terms of the contract governing the relationship between the employee and the employer. The rules governing the claimant’s employment relationship with the defendant are the claimant’s Letter of Offer of Employment Exhibit H1, Letter of Dismissal H3, Arik Air Employee’s Handbook Exhibit H9 and Arik Air Human Resources handbook Exhibit H10. These documents mentioned above are the documents the Court will look into and the court will not look outside the terms stipulated or agreed therein in deciding the rights and obligations of parties. The provision of a written contract of service is binding on the parties thereto. The Contract of service is the bed rock on which any aggrieved employee must found his case, he succeeds or fails upon the terms. Relief 1, 2, and 3 will be considered together. It is the claim of the claimant that she was unlawfully and maliciously dismissed by the defendant. She also claimed that the dismissal was not in line with the Provision of Chapter 9 Paragraph 9.6 of the Employee’s Handbook. She is also seeking a reversal of her dismissal to be recalled and be allowed to put in her resignation letter. While it is true that the employer has the right to hire and fire his employee at any time for any reason or no reason at all the employer must however adhere to the terms of the contract. The contention of the claimant in this suit is that the defendant did not follow the procedure laid down in the Arik Employees’ Handbook and Human Resources Manual before issuing her the dismissal letter. The claimant was dismissed by the defendant in a letter dated 25th December 2012 stating that she breached standard operating procedure in that she failed to destroy a burden pass reserved for a Yola-Abuja passenger Catherine Mathias who was to connect the W31158 flight from Abuja to Lagos. That she was called by Catherine Mathias who informed her that is the claimant that she would not make the Yola-Abuja flight. That consequently the burden pass was stolen by touts which was sold to a new passenger on board Abuja – Lagos flight on 7th July 2012. The question is whether the defendant had complied with the terms of the contract before dismissing the claimant and if not can the dismissal of the claimant be reversed. It must be noted that, The Arik’s employees handbook in paragraph 9.6 and Human Resources Manual in paragraph 13.5 laid down the disciplinary procedure to be followed. These are:- (1) The employee will be provided with a letter of allegation (query) and invited to respond either in writing or at disciplinary hearing. (2) In serious cases the employee may be suspended with or without pay pending further investigation. (3) Where it appears that formal disciplinary action may be necessary the employee will be notified in writing of the basis of the matter to be addressed and will be required to attend the disciplinary hearing. (4) The employee will be given a reasonable opportunity to consider his or her response to the company’s case prior to the disciplinary hearing. (5) Employee must attend the disciplinary hearing where he fails to appear, the company will conclude the matter on the available evidence. (6) Employee has the right to be accompanied by a fellow worker if he so desired. (7) The allegation will be explained to the employee and he will be given every opportunity to state his case. (8) In the event the manager conducting the hearing reasonably believes that the employee has failed to provide a satisfactory explanation the manager will consider the matter and decides what disciplinary action is appropriate. The manager will notify the employee of the company’s decision in writing and of the employee’s right to appeal. (9) In paragraph 13.6 of Human Resources Manual (HRM) Policy an employee may be issued a verbal warning for the first case of misconduct and she will be informed that a verbal warning constitutes the first step in the disciplinary procedure and be advised of the improvement or change in behavior required. (10) In paragraph 13.7 Human |resource Manual (HRM) policy provides that if an oral warning is considered an inappropriate penalty due to the nature of the misconduct or where the employee has received an oral warning in relation to a previous act of misconduct or poor performance. The employee will be issued with a written warning. (11) Furthermore the HRM policy in paragraph 13.8 provides that if the conduct is sufficiently serious else to warrant only one written warning but insufficiently serious to justify summary dismissal the employee may be issued with a final written warning. (12) As provided for in Paragraph 13. 9 of Human Resource manual (HRM). The ultimate penalty under the company’s disciplinary procedure is dismissal. This penalty will only be exercised as a first recourse in instances of gross misconduct. Further, where previous verbal written warning have failed to lead to an improvement in conduct of work, dismissal will normally result however other penalties may be considered including demotion or transfer. Only the Vice President or his delegate of a sufficiently senior level of Management is authorized to take a decision to dismiss an employee, If it is decided to terminate the employee’s contract of employment the employee will receive a letter specifying the reasons for dismissal and the effective date of dismissal . (13) In the Human Resources Manual there is also provision in paragraph 13.10 for an employee who wishes to appeal against the disciplinary decision to notify the vice President Human resources in writing within five days of the date of the written notification decision of the disciplinary hearing decision. Grounds for appeal can include either new evidence not previously considered or where there is a breach of procedure or breach of procedural fairness. From the fact of this case, it is very glaring that the defendant breached its own rules as contained in both the Human Resources Manual (HRM) and Employee’s Handbook. This is further buttress by the unchallenged and uncontroverted evidence of the claimant that there was only one meeting or contact between the claimant and the only witness of the defendant, Mr. Fidelis Tanko. It is trite the employer has the right to disciplining any of his erring staff including the claimant. This however, must be done with the rules and regulations binding the parties. The evidence of DW that is Mr. Fidelis Tanko also confirmed that the procedure stated above was not followed by the defendant. Under cross examination Mr. Fidelis Tanko informed the court as follows: Counsel - you are not the chief Security Officer of Arik? Witness - No , I was head of Investigation. Counsel - You were not in Abuja on the day of missing burden pass? Witness - I was not in Abuja. Counsel - Your report was based on what you were told? Witness - I came to Abuja for investigation. Counsel - When was that? Witness - I came to Abuja on Monday 9tth when the incident was 7th July 2012. Counsel - It was Abdul Fatai Lawal that was on duty as Security man. Witness - Yes, he was Head of Security, Abuja. Counsel - Did Abdul Fatai Lawal made any Report on the incidence? Witness - Am not aware of any report written by Head of Security written on the day. Counsel - Who is Lawal Fatima? Witness - She is my colleague in Lagos. Counsel - did Lawal Fatima ever met the claimant to hear from her before you wrote your report? Witness - No. Counsel - You sent for her on one evening to hear her own part? Witness - Yes. Counsel - Where is the copy of her own report she gave you? Witness - Is with the Organisation. Counsel - Was there any disciplinary Committee set up to try her case before she was dismissed? Witness - I wouldn’t know. Counsel - In paragraph 4 of your witness Statement on Oath, you said the boarding pass was to be destroyed, who instructed her? Witness - She got a call from Station Manager Yola, I can’t remember the name that the passenger would not make the journey that she should sort out the boarding pass. In the defendant Witness Statement on Oath the DW Mr. Tanko Fidelis (Esq.) averred In paragraph 2 that “I received a report of security breach and fraud from the defendant’s Abuja office relating and concerning the claimant in respect of an intending female passenger by name Miss Catherine Mathias who requested for a suspension of her flight from Yola to Lagos via Abuja but records during boarding revealed that the said passenger had boarded in Abuja Air route Lagos”. It is not in dispute that on the 7th of July 2012 that an instruction came from Yola Station of the defendant through claimant’s colleague Rahab Zarma that a passenger Miss Catherine Mathias will no longer be travelling to Lagos via Abuja and that her ticket should be offloaded. It is not also in dispute that the claimant complied with that instruction and sorted out the boarding pass belonging to the passenger Miss Catherine Mathias. It is also not in dispute that the boarding pass was stolen and could not be found. The claimant informed the defendant and everybody concerned immediately about the missing boarding pass. It is also not in dispute that an impostor beat the security and attempted to use the boarding pass and he was caught. This matter was investigated by Mr Tanko Fidelis who came from Lagos to Abuja to investigate this matter. In Abuja, he visited the D.P.O in charge of the Airport and the touts involved and a chat with one of them to unravel how the missing boarding pass got to him and later produce his own report Exhibit T1 which did not prove the claimant guilty of fraud. It is also on record that Arik did not lose a dine because the seat was already sold to a genuine passenger and the impostor could not successfully used the boarding pass. The police in Abuja who also investigated the matter came up with a report Exhibit H17 and came up with the following findings that:- (1) Since Husseina Yaqub “f” quickly reported the theft of this ticket/boarding pass to Mr Ogaji Diavem the Duty Manager on the day and time in question, she is not found negligence or criminally culpable in this case and (2) There is no adequate security around the Arik Air Limited Ticket/Boarding pass counter at Nnamdi Azikiwe Int’l airport Abuja Those found culpable by the police were all charged to the Chief Magistrate Court, Jiwa/ Abuja for joint act /theft and impersonation contrary to the penal Code laws of Northern Nigeria. It is trite law that anybody acting judicially in determination of a decision that is likely to affect the civil right or obligation of a person is bound and enjoined to observe the rules of natural justice. Natural justice demands that a party must be heard before a case against him is determined. It is my view that when a defendant undertook to investigate the event of 7th July 2012 and to apportion blame, the panel obviously was carrying out judicial function and must complied with constitutional requirement of fair hearing as enshrined in S. 36 of 1999 Constitution as amended. “ In Salami V. Odogu (1991) 2NWLR (pt 173) pg 295 at 305 the Court held” “ A right to fair hearing being a fundamental constitutional right granted by the constitution the breach of which in any trial or investigation or enquiry nullifies the trial “ It is also a settled law, that it is not proper for an employer to remove an employee on the basis of the report of an investigation panel only. The employer should take a step further by setting up a disciplinary panel that will determine the guilt or innocence of the accused employee. See State Civil Service Commission & ors V. Vuzujba (1984) LPELR 3115 (SC) . To the defendant the act of the claimant on 7th of July 2012 could cause and did cause damage to the business and reputation of Arik Air Ltd. Which to them constitute gross misconduct? And being the ground upon which the claimant was dismissed. It is not enough for defendant to make this statement without proving to the court how the missing boarding pass had caused damage to the business and reputation of Arik Air Limited. As earlier said the Arik Air Ltd, did not lose a dine neither was there any pandemonium at the Airport. In my view the claimant has taken all necessary steps to prevent the use of the missing boarding pass by informing the Station Manager and those concerned about the security at the airport. It was as a result of her report of the missing boarding pass that the impostor was arrested. As rightly pointed out by the police the security lapses at Arik Air Ltd Counter gave room for this kind of problem. Rather than dismissing the claimant the defendant should provide adequate security and protection for his staff. The dismissal of the claimant on the basis of missing boarding pass in my view is uncalled for, high handed, and the deliberate act by the defendant to destroy the claimant’s career for life. The claimant’s letters of appeal to the defendant seeking review of her dismissal, they were all ignored by the defendant contrary to rules and regulations bidding the parties. In the present case the claimant has complained that she has been dismissed by the defendant without being heard. It is obvious that the claimant was denied her right to fair hearing. The claimant did not know the evidence and statement that have been laid against her and she has not been giving opportunity to correct or contradict them. In view of the following submission the dismissal of the claimant on the basis of the reasons adduced in her letter of dismissal by the defendant is in gross and violent breach of firstly its own document, that is Employee’s Handbook and Human Resources Manual Exhibit H9 and H10 on fair hearing and due process, Secondly S. 36 of the 1999 Constitution as amended on fair hearing are the rules of natural justice. Where such a procedure are violated an employers’ order of dismissal will be inoperative and void It is trite law that parties are bound by the contract they voluntarily entered into therefore the failure of the defendant to comply with their own rules and regulations renders the dismissal of the claimant unlawful and wrongful. For this reason the letter of dismissal dated 26th of September 2012 is thereby set aside. However, in an ordinary contract of master and servant the court will not make an order of specific performance of a contract of service, as to do so will amount to imposing on an unwilling master a servant no longer desired. Since the employer has the right to terminate an employees appointment at any time, the appointment must be terminated in accordance with the rules governing the parties. It is also the law that an employee who has been dismissed in breach of his contract of employment is not entitle to treat the contract as subsisting, The measure of damages in a case of wrongful dismissal is always the amount of money that is payable during the periods of notice to be given by the employer as stipulated in the contract of employment and not salaries up to the time the judgment is delivered. A servant who has been unlawfully dismissed cannot claim his wages for services he never rendered. The claimant is therefore not entitled to the sum of N297,862.50 (Two Hundred and Ninety-seven Thousand Eight Hundred and Sixty-two Naira and fifty kobo) she is demanding as her monthly salary from the month of November 2012 until judgment is delivered in this case. But she is entitled to her two months unpaid salaries for August and September 2012 amounted to N173,125.00 (One hundred and seventy three thousand one hundred and twenty five Naira only) as stated in her complaints. She is also entitled to the defendant’s part of the claimant’s pension contribution of N297,862.50 (Two hundred and ninety seven thousand eight hundred and sixty two Naira fifty kobo only) which has remained unremitted into the claimant’s Pension account. These figures were not challenged by the defendant in their statement of defense and only came up in the defendant’s final address. It therefore goes to no issue The claimant is not also entitled to the sum of N50,000,000.00 (fifty million Naira) she is demanding for untold hardship and torture she suffered as a result of her unlawful termination of employment. As the employer has the right to terminate the contract with a servant at any time for any reason or for no reason at all, as long as this is done within the four walls of the terms of the contract. In respect of the claimant claim for the sum of N40,000,000.00 (forty million Naira) as exemplary damages against the defendant for maliciously terminating her appointment on an unfounded allegation. Exemplary damages in particular also known as punitive or vindictive damages can apply only where the conduct of the defendant merit punishment and this may be considered to be so where such conduct is wanting ,as where it discloses fraud , malice , cruelty, insolence or the like. It is trite law that in order to justify an award of exemplary damages it is not sufficient to show that the defendant has committed the wrongful act complained, the conduct must be high handed or outrageous, insolent, vindictive, oppressive or malicious and showing content of the plaintiff’s right or disregarding every principle which actuates the conduct of civilized men. The claimant submitted that the wrongful dismissal of his employment has no basis and must therefore be compensated. The question that must be answered is whether such a conduct on the part of the defendant warrant the claimant‘s claim .The conduct of the defendant was not only oppressive but high handed, malicious and vindictive. This is a classical example of a case that deserves the award of exemplary damages. What sum then is adequate having regard to the circumstances in this case?. This head of claim is not also challenged by the defendant in the statement of defense or her trial. Pleadings not denied are deemed admitted therefore the court awarded the sum of N5,000,000.00(five million Naira ) only to the claimant as exemplary damages. Finally, the court makes no award in respect of cost of this action as the claimant did not make any submission in respect of this claim it is therefore deemed abandoned. For reasons given above, the claimant’s claims succeed in part in respect of reliefs 1,2,3,4 and 7. Judgment is entered accordingly. _____________________________ HON. JUSTICE O. A. SHOGBOLA JUDGE