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REPRESENTION- J.A.K Akhigbe with him are Emeka Maduekwe, Bomah Ozobiafor the claimant L. Abina Mrs. With her are E. Onoji, Constant Udensi (Miss) and E. Wingate for the defendant. JUDGMENT By his General Form of complaint dated 18th July, 2013 the claimant seeks the following reliefs: a. A declaration that the dismissal of the claimant by the defendant for incompetence on the 2nd April, 2013 without giving him a 3months notice and an opportunity to defend himself is wrongful, unlawful, arbitrary, unconstitutional, actuated by malice null and void. b. An order directing the defendant to pay to the claimant the sum of N574,000 (Five Hundred and Seventy Four Thousand Naira Only) being the claimant’s 3months salary in lieu of Notice. c. A declaration that the performance review exercise of the claimant by the defendant through the Chief Executive Officer is contrary to the practice and procedure laid down by the defendant and therefore arbitrary, wrongful and contrary to the rules of natural justice. d. An order directing the defendant to pay to the claimant the sum of N10,000,000 (Ten Million Naira) being aggravated and exemplary damages for wrongful dismissal. e. An order directing the defendant to tender a written apology for the defendant’s use of malicious, libelous and derogatory language in the dismissal letter dated 2nd April, 2013. Accompanying the complaint are Statement of Facts, List of Witness, List of Documents to be relied upon at trial and claimant’s Witness Statement on Oath. The claimant on the 30th of October, 2013 filed an additional Statement on Oath. In reaction, the defendant filed a memorandum of appearance dated and filed 3rd October, 2013. The defendant also filed a Statement of Defence, List of Witness, List of Documents to be relied upon trial and defendant’s Witness Statement on Oath. By the Statement of Facts the claimant pleaded that he was the General Manager of the defendant company until the 2nd day of April, 2013. He was employed on the 25th of January, 2010 as an accountant and confirmed as a staff of the company six months after. Claimant averred that he was appointed a General Manager vide a letter dated 17th February, 2011which took effect from 1st March, 201. He averred that sometimes in 2012, the CEO sent him and the former production manager to NAFDAC to process the registration of the defendant’s product. The CEO called the claimant to enquire if they were at NAFDAC but claimant said that the Production Manager was not there with him, she got angry and immediately summoned the claimant to her office conducted a Management evaluation performance on the claimant and scored him low contrary to the normal procedure of evaluating performance. Upon submission of reports to her, the CEO was not satisfied with the profit margin and immediately summoned the claimant and suspended him. He was suspended indefinitely without pay and recalled a week later but placed on another round of probation after 6 months initial probation period upon his employment. His duties were assigned to the Personal Assistant of the CEO without reassigning him to another thus he was rendered almost redundant. Claimant averred that upon resumption of work on the 2nd of April, 2013 he was given a dismissal letter. He was never issued a query before his dismissal. The claimant instructed his solicitors to write to the defendant but the defendant neglected to respond his letter. The P.A to the CEO caused the claimant’s letter of dismissal to be pasted on the entrance gate and read same to all staff and customers were informed of his dismissal. Claimant states that he has suffered untold hardship as a result of the dismissal letter. The claimant during trial tendered documents which were admitted and marked as Exhibits B-B6 In reaction the defendant admits paragraphs 1, 2, 3, and 4of the statement of fact. In response to paragraphs 5,6 and 7 the defendant avers that the claimant was given an opportunity to fill in the vacant position of the General Manager because the former Managing Director left to fill a position at the Lagos Business school. The defendant denies that the total remuneration of the claimant is N158,500.00 and states that it is N158,000.00 per month. Defendant averred that the claimant failed to competently carry out his duties diligently as a General Manager of the defendant and this led to the defendant placing the claimant on probation for three times and received one suspension after several verbal warnings given to him to improve on his job. The defendant states in paragraphs 10, 11, 12 and 13 that the achievements of the company cannot be attributed to the singular effort of the claimant. Defendant deny paragraphs 15, 16 and states that in fragrant disobedience of company policy claimant proceeded to represent the defendant without regard to the instructions that he should go with the production manager for better representation of the defendant. That by paragraphs 17, 18 and 19 the proper procedure for evaluation was adhered to and claimant’s was found to have performed low and within the competence of the CEO to evaluate the claimant and denies paragraphs 21 and 22 stating that the claimant’s suspension was not immediate. The defendant also denies 23 and 24 and stated that the PA never usurped the claimant’s duties but carried out the instruction given to her by the CEO. The defendant also denies paragraph 25 and stating that the company was in existence and doing business before the claimant was employed as an accountant and also denies that by paragraph 27 the defendant averred that the claimant is aware that his conduct is unsatisfactory. Defendant averred by paragraph 30 the letter from the law firm came to them as a surprise and while in the process of arranging for a legal practitioner, the claimant instituted this suit. That it was essential for the defendant to keep it customers in the know that the claimant was no longer in its employment and nothing derogatory and libelous was written in the letter of dismissal. That the claimant is not entitled to any of its reliefs he claims against the defendant, he is not entitled to a 3months notice or salary in lieu and his claim for N10,000,000.00 as aggravated and exemplary damages. The defendant during trial tendered documents which were admitted and marked as Exhibits AM1-AM4 and SO1 and SO4 The defendant in his Final Written Address dated 8th of May 2014 filed his Written Address wherein he raised Four issues for the courts determination; i. Whether the evidence adduced by the claimant is sufficient to ground an action for wrongful dismissal? ii. Whether the defendant was justified in summarily dismissing the claimant who had undermined the confidence which should exist between an employee and the employer. iii. Whether the series of opportunity to retrace himself and the constant warnings given the claimant before his dismissal claimant could be said to have been given an opportunity of fair hearing. iv. Assuming without conceding the dismissal was wrongful, what is the measure of damages to which the claimant is entitled. On issue one, counsel contended that in a claim for unfair dismissal by the employee, the onus of proof lies on the employee to establish same. He cited the case of UZONDU V UNION BANK OF NIGERIA PLC [2009] 5 NWLR (PT. 1133) 1 AT PP. 15-16; IBEKWE V ISEMB [2009] 5 NWLR (PT 1134) 234 AT 252. Counsel submitted that the claimant failed to show the manner he ought to have been dismissed as provided for in the contract of employment in his testimony and in his statement on oath. He submitted that Exhibit B which embodies the terms and condition of service of the claimant does not provide for a dismissal process therefore the defendant cannot be said to be liable for the unlawful dismissal of the claimant. Counsel submitted that there is no contention as to the appropriate authority to dismiss the claimant as there was no stated procedure for dismissal of employee. He submitted that the defendant is a small company, still at its infantile stage so that it would not have developed proper human resource management processes as would a company with an established governance structure. He submitted thus that the defendant did not breach its contract with the claimant. On issue two, counsel submitted that it is trite that an employer may summarily dismiss an employee for gross misconduct or disobedience to lawful orders or incompetence without notice and without wages. He cited BORISHADE V NATIONAL BANK OF NIGERIA LTD (PT.1015) 217 AT 234-235; UZONDU V UNION BANK OF NIGERIA PLC (supra). Counsel stated that in exercising this right to dismiss, an employer is not mandatorily required to accord fair hearing to the employee. He cited ARINZE V FIRST BANK OF NIGERIA LTD [2004] 12 NWLR (PT 888) 663 Counsel argued that paragraph 22 (i) to (viii) of the statement of Oath clearly stated that the claimant was in the habit of insubordination and willful disobedience to lawful orders. Exhibit AM alleges that the claimant failed to carry out the instruction of the Chief Executive Officer of the defendant as regards the defendant business. This assertion was never denied by the claimant rather in paragraph 8 (i) of the claimant’s additional statement on oath he averred that he was never involved in purchase on behalf of the defendant company, by paragraph 8 (ii) his duty was merely to provide the approved funds for the purchase and paragraph 8 (iii) he asserted that “I was never absent from duty during the purchase and installation of the reverse osmosis equipment”. Also under cross-examination, the defendant’s witnesses reiterated that the instruction was given for the claimant to supervise the purchase of the reverse Osmosis Plant. Counsel stated that the lack of managerial competence in the welfare of the company was seen in the handling of the Ibadan incidence by the claimant where the company’s truck was abandoned, his nonchalance at the breakdown and his failure to retrieve that vehicle. Under oath, defence witness 1 stated that she only approved whatever fund was analyzed by the claimant and defence witness 2 stated that the claimant could not be reached at such trying period. Counsel submitted that the claimant averment in paragraphs 8 (vi) in his additional statement on oath that the CEO’s PA gave the truck driver 50% of the required fuel cost which made the truck break down in Ibadan is clearly untenable. Counsel submitted that all these go to show was not up to his responsibility as the General Manager of the company and thus misconducted himself. Counsel citing another instance of claimant’s misconduct submitted that the claimant in clear breach of the instructions of the CEO went ahead and sold the defendant’s products on a Saturday as there were no sales on Saturday except with the express approval of the CEO as stated by the defence witnesses. The claimant never controverted this but went ahead to state in paragraph 8 (IV) additional statement on oath that sales were conducted every day of the week, including weekend and public holiday. Continuing counsel submitted that the claimant also showed no respect for the defendant’s customers as seen in Exhibits AM4 where the claimant tactlessly sent an email to the customer Mr. Ekwena Ijeh prior to the agreed further negotiations between the defendant and the customer. Counsel submitted that other acts of claimant’s misconduct are claimant’s failure to inform the Jos distributor on the change and new terms for transportation order, the use of unprofessional telephone conversation to deal with distributor, claimant’s lateness to work and the involvement of non- sales staff in the delivery of product as against the instruction of the defendant’s policy. Counsel cited the cases of LAKE CHAD RESEARCH INSTITUTE V MALLAM KOLO MOHAMMED [2005] 11 NWLR (PT. 935) 1; AJAYI V TEXACO NIG LTD [1987] 3 NWLR (PT.62) 577 AT 579 Counsel submitted that all the above submission amounted to misconduct on the part of the claimant for which the defendant was entitled to act upon by summary dismissal. He urge the court to so hold. It is the contention of counsel that the relationship between the claimant and defendant being one of master servant relationship, there was no obligation on the part of the defendant to accord fair hearing to the claimant prior to his dismissal he cited the case of LAKE CHAD RESEARCH INSTITUTE V MALLAM KOLO MOHAMMED (supra); AJAYI V TEXACO NIG LTD (supra); ARINZE V FIRST BANK OF NIGERIA LTD (supra) Counsel submitted that dismissal of the claimant was not unlawful and urge the court to hold issue two in favour of the defendant. On issue three, it is the contention of counsel that claimant adhered to the principles of fair hearing as established by the courts. He submitted that prior to claimant’s dismissal on 2nd of April, 2013 he had been on probation as seen by Exhibit SO4 dated September, 21 2012 and was suspended by Exhibit B4. Counsel submitted that all these period were warning period and also an opportunity for the claimant to apply himself fully to his job. Counsel also submitted that it is trite that fair hearing in employer/employee relations does not necessarily mean setting up a quasi-judicial panel it suffices that written communications are exchanged given the employee an opportunity to state his side of the story. He cited the case of DAMISA V UNITED BANK OF AFIRCA PLC [2005] 9 NWLR (PT.931) 526 AT 536 Counsel stated that Exhibits EXH. SO4 and EXH B4 shows that the claimant was afforded an opportunity of fair hearing which he never seized of therefore, he cannot be said to have not been granted fair hearing by the defendant. Counsel urge the court to hold issue three in favour of the defendant. On issue four, counsel submitted that the claims of the claimant are clearly in excess of claims maintainable for wrongful dismissal. He cited the case of NIGERIA PRODUCE MARKETING BOARD V ADEWUNMI [1972] 7 NSCC 662 AT 666; OSISANYA V AFRIBANK (NIG) PLC [2007] 6 NWLR (PT. 1031) 565 AT 578-580. Continuing counsel submitted that it is trite that damages for wrongful dismissal are in effect damages for the breach of contract of employment. That in all cases of breach of contract of employment, there is no allowance for the grant of a separate head of damages denoted ‘general damages’ nor ‘aggravated and exemplary damages for wrongful dismissal’ all that is awarded is special damages. He cited CHUKWUMA V SHELL PETROLEUM DEVELOPMENT CO LTD [1993] 4 NWLR (PT. 289) 512 Counsel also submitted that the claimant’s claims for Ten Million aggravated and exemplary damages and written apology do not form part of the measures of damages for wrongful dismissal. He urge the court to dismiss the claim of the claimant. Counsel also submitted that as regards the period of notice, it is one month as seen in EXH B and EXH B1 and not three months as claimed by the claimant. He submitted Exh B1 requires “3 months’ notice in writing or pay deductions would be applied. It is contention of counsel that the obligation to give three months’ notice rested on the claimant, who having been promoted to the position of General Manager was now required to give three months’ notice prior to resigning. This was reiterated by defence witness 2 under oath that despite the promotion of claimant to the position of General Manager, the terms and conditions remained the same. Counsel further submitted that Exh B1 was intended to bind only the employee since the employer would be in a position to apply “pay deductions” thus the notice of period is one month that is N158,000.00. Counsel submitted that claimant is neither entitled to his claims for N10,000,000.00 as exemplary damages and aggravated damages, nor payment of N574, 000.00 as 3 months salary in lieu of notice, nor written apology. The only damages for which the claimant is entitled to where his action succeeds is N158,000. He urge the court grant issue four of the defendant’s claim and dismiss the case of claimant with substantial cost of N10,000,000.00 in favour of the defendant. The claimant on the 5th of June, 2014 filed its Written Address wherein three issues were raised for the determination of this court; i. Whether the dismissal of the claimant on the 2nd of April is wrongful. ii. Whether the claimant is entitled to damages if the answer to the 1st issue is in the affirmative and; iii. Whether the letter of dismissal dated 2nd of April is defamatory of the claimant. On issue one, counsel argued that where a Claimant alleges that his dismissal is wrongful; he has the burden of proving the following: a. That he is an employee of the defendant; b. The terms and conditions of his employment, c. The way and manner by which he can be removed. He cited the case of A.R MOMOH VS CENTRAL BANK OF NIGERIA PLC (2007) 14 NWLR (PT 740) 504; Counsel submitted that since the relationship between the Claimant and the defendant is one of Master Servant Relationship, his termination or dismissal must comply with the terms and conditions of the contract of employment as contained in Exhibit Bl. Counsel submitted that in Exhibit B1, the mode for the termination is clearly written, it is three months’ notice in writing thus it is erroneous for the defence counsel to argue that there is no clear procedure before dismissal or termination of appointment contained in the terms and conditions of employment or that the 3-months’ Notice applies only to the Claimant as that would be a narrow interpretation of that provision. He contended that even if there is no provision for the giving of Notice, the law requires that reasonable Notice be given by the party terminating the contract of employment. He cited the case of AKUMECHIEL V BENUE CEMENT CO LTD & ORS (1997)1 NWLR (PT 484) 695, EMUWA V CONSOLIDATED DISCOUNTS LTD (2001)2 NWLR (PT 697) 424; OGUNSANMI V C.F FURNITURE (W.A) COMPANY LTD (1961) ALL NLR, 962 Continuing, counsel submitted that it is the law that an employer needs not give reason(s) for the termination of an employee but where he elects to give reason(s) the law imposes an obligation or duty on him to establish the reason to the satisfaction of the court. He cited in support the case of SHELL PETROLEUM DEVELOPMENT COMPANY OF (NIG) LTD V OLARENWAJU (2008)16 NLWR (PT 1118) 1, Counsel submitted that the defendant was not bound to give reasons before dismissing the Claimant but where he chooses to do so, the law imposes a burden on it to prove same to the satisfaction of the court. Counsel argued that the allegations of misconduct against the claimant are contained at paragraph 22 of the 1st defendant's witness on Oath. He posited that the relevant question therefore is whether the defendant was able to establish these allegations in evidence? He submitted thus that dealing with this question, each and every allegation of misconduct contained in the defendant's statement of defence should be addressed. Counsel submitted that Claimant, in his additional statement on Oath, dealt with each of these allegations exhaustively but defendant never led evidence to challenge nor did it file a counter affidavit. Counsel submitted that on the issue of flouting the company's Accounting Standard operating procedure by involving the Admit/HR Officer, the Claimant at paragraph 6 of Exhibit Al stated that the invoicing process for a client was done by the Accounts department in accordance with the defendant policy. This averment was not controverted by the defendant and as the defendant failed to tender the company policy during trial to enable the court to determine whether the claimant was in breach of same is fatal to the defendant's case. He who asserts that his policy has been breached in any form has the onus of ensuring that the policy document is tendered in court. Counsel contended that on the allegation of flouting the company's sales rules in the "Chitina stone" incident, the Claimant's averment at paragraph 7 of Exhibit Al that the Accountant who actually flouted the sales rules was issued with a query and that he was never queried because he was not involved was not denied or effectively rebutted. Counsel urged the court to accept the deposition. The Claimant addressed the remaining allegations at paragraphs 8 and 9 of Exhibit Al extensively; the defendant did not file a counter affidavit to challenge same. Counsel submitted that where a party fails to deny or controvert his opponent's averments in an affidavit, he is deemed to have admitted such averments; he cited the case of H.S ENGR. LTD V.S.A YAKUBU (NIG.) LTD [2009] 10 NWLR (PT 1149) 416.S.C; ONONAKU V ABUBUE [2009]15 NWLR (PT 1165) 539. On the issue of Jos distributor's letter (Exhibit AM4) one of the allegations of misconduct against the claimant, it is difficult to fathom the basis of the defendant's complaint against the claimant. Exhibit AM4 was a reply to a mail sent to Mr. Ije by the defendant through the claimant. This letter was never tendered in evidence by the defendant. The DW1stated on Oath that the idea of writing Mr. Ije was not a unilateral decision by the claimant as the mail was approved by her and others before it was dispatched. Counsel continuing, submitted that the DW1 in our evidence stated that she returned to Nigeria to assume office as the defendant's Operations Manager on 1st April, 2013, a day before the claimant was dismissed. The allegations of misconduct which formed the basis for the claimant's dismissal took place when the claimant's was the defendant's General Manager. Thus, DW1 could not have been present during the occurrence of these alleged instances of misconduct and submitted that the DW1’s evidence be best said to be hearsay. Counsel submitted that there is no evidence in court showing that the Claimant was confronted with the allegations of misconduct before he was summarily dismissed on the basis of such allegations. At paragraph 3.2., page 9 of the defendant's written address, it is stated that, "in exercising his right to dismiss under this ground, the employer is not mandatorily required to accord fair hearing or even a hearing to the employee". The defendant cited ARINZE V FIRST BANK OF NIGERIA LTD (2004) 12 NWLR (PT 888) 663 in support of this strange proposition. Which is in contradistinction with the above assertion as the Supreme Court never reached such conclusion in this case, rather the court held at (pages 677-676, paras: G-A; paras: G-H; 679, paras C-D) thereof, that in cases of misconduct bordering on criminality, all that is required of an employer before summarily dismissing an employee is to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself. Counsel stated that in this suit, there was no allegation of crime against the claimant, neither was he ever given the opportunity to defend any of the allegations against him. Counsel submitted that the case of JIRGBAGH V UBN (2001)2 NWLR (PT. 696) 11 referred to by the defendant is not applicable to this suit. Counsel submitted that Claimant by Exhibit-B was first employed in November 2010 as an Accountant, placed on 6 months’ probation and in 2011, he was employed as the defendant's General Manager Exhibit. B1 with a new set of terms and conditions of service placed on another 6 month probation period. At the end of each of the probation periods, the claimant's appointments were made permanent. Therefore, any further purported probation is totally misconceived and a nullity that Exhibit S04 dated 21 September 2012 which purportedly placed the claimant on an indefinite probation after the initial 6-month probation period has no evidential value. This was conceded by the 2nd Defendant's witness during cross-examination where she stated that it is not the policy of the Defendant to place its employees on an indefinite probation period. Counsel submitted that Exhibit S04 could not have been made. It is counsel’s contention with regards to the purchase of the reverse Osmosis equipment which was one of the alleged misconduct against the claimant, that both parties agreed that the claimant role was merely to accompany the Purchasing Manager and the Accountant and to make available the approved amount. The defendant's witnesses agreed that the equipment was purchased the very day the claimant was directed to accompany the aforesaid officers. The claimant had deposed in Exhibit A1 that he was never in charge of purchases in the defendant company and this averment was not denied. Counsel stated that if there were any infractions on the defendant's policy why the Purchasing Manager and the Accountant who did the Purchasing were not reprimanded. Counsel submitted that the DW1and 2 testified that the defendant did not transact business on weekends. However, it is in evidence that the Ibadan incident where the defendant's truck broke down was not only on a weekend and but was done during the Easter Holidays. The money for the trip was provided by the DW1, the Chief Operations Manager. She admitted in her evidence that she did not bother to find out what happened to the driver and Truck that travelled to Ibadan when the truck broke down due to insufficient fuel. Counsel contended that the principle of fair hearing is a constitutional matter firmly rooted in the determination of the rights and obligations of any person. He cited SAVANNAH BANK PIC V FAKOKUN [2002]1 NWLR (PT 749) 544, the court held that, "In order to accord fair hearing to a person accused of gross misconduct or any misconduct whatsoever, such a person must be confronted with the result of whatever investigation was conducted or if charged, be allowed to defend himself or offer an explanation" OSUMAH V EDO BROADCASTING SERVICE [2004] 17 NWLR (PT 902) 332, referred to Learned counsel argued that defendant averred in its address that the claimant was given the opportunity to defend himself he referred to Exhibit S04 and Exhibit B4, being letter of probation and suspension letter respectively in support of its position. He submitted that there is nothing in these Exhibits containing the allegations of misconduct and requiring the claimant to respond as they are final conclusions by the defendant based on its perception about performance of the claimant they were no queries. Counsel with regards to evaluation of the submitted that from the evidence of Ms. MOH, for a review to be proper, there must be placed before the line Manager doing the review, a self-¬ evaluation document done by the employee concerned. Counsel submitted that for the claimant, there was no self- review document which could have formed the basis of the performance review exercise conducted by the CEO (DW2), the Claimant line officer. There was no date fixed for the exercise and Paragraph 3 of Exhibit Al which spells out the procedure for evaluation of any employee was never disputed or contradicted. Also paragraph 16 of Exhibit A was never denied in evidence. Therefore, the performance review exercise, being improper and irregular cannot support the subsequent actions by the defendant against the Claimant. Immediately after the exercise, Exhibit S04 was issued after which, the claimant was suspended via, Exhibit B4 and ultimately dismissed via, Exhibit B5. Counsel submitted that you cannot place something on nothing and expect it to stand. He cited MACFOY V UAC [1962] AC 150. Counsel submitted that as regards the weight to be attached to Exhibits S02 and S03, the defendant through its second witness tendered in evidence, Exhibits S02 and S03, being Heads of Agreement dated 22 December 2008 between Funman and the Defendant and Chief Executive Officers call History respectively. Exhibit S02 was perhaps intended to show that the idea of having a manufacturing plant of its own had been on the card even before the claimant was employed in 2010 but a close look at these Exhibits, shows that it was never signed by the defendant and that it is an incomplete document and where a document which ought to have been signed is not signed, such document though admissible in evidence, has no evidential value. He cited the case of AIKI V IDOWU [2006] 9 NWLR (PT 984) 47, where the court of Appeal held thus: "where a document which ought to be signed is not, its authenticity is in doubt". Counsel urged the court not to attach any probative value to Exhibit S02 stating that claimant could not see what purpose Exhibit S02 is intended to serve since the kernel of the claimant's contention as regards the building of the defendant's own factory was that, being the man on ground, he supervised the construction. This much was admitted though hesitantly by the second defence witness. Counsel also submitted that Exhibit S03, being the call logs of the Chief Executive Officer of the defendant, is totally irrelevant and of no evidential value as there was no dispute as to whether the CEO was in touch or communication with her employees, so there was nothing for Exhibit S03 to clear. On issue two, counsel submitted that law is that where there is a wrong, there is a remedy and a wrongful dismissal of an employee entails a breach of the contract of employment which attracts a quantum of damages. He cited the cases of NIGERIAN OIL MILLS LTD V ALH. DAURA [1996] 8 NWLR (PT 468) 601; CHUKWUMAH V SHELL PETROLEUM CO LTD [1993] 4 NWLR (PT 289) 512 Counsel contended that the relevant document to determine how much the claimant would have earned if he had not been wrongly dismissed is Exhibit B1 as Exhibit B which is the letter of employment of the claimant embodying the terms and conditions of employment as the Accountant had been replaced by Exhibit B l at the time of the disengagement. Thus, Exhibit BI contains new terms and conditions of employment between the parties. Counsel submitted that the length of Notice which the defendant ought to have given the claimant was three months as clearly stated in the letter of confirmation of employment. It is completely erroneous and misconceived for the defendant to contend that the 3 months’ Notice was only applicable to the claimant. Counsel continuing submitted that the correct interpretation in our view is that either party is to give a 3-months’ Notice before bringing the contract to an end but if the claimant failed to give such Notice the defendant would be at liberty to make pay deductions. Therefore any contrary interpretation would entail injustice and operate to defeat the intention of the parties. Counsel submitted that since the defendant did not give the requisite 3-months’ Notice before dismissing the claimant, the claimant is entitled to three month salary in lieu of Notice in the sum of N574,000 (Five Hundred and Seventy Four Thousand Naira) for wrongful dismissal as the claimant was dismissed as the General Manager not as the defendant's Accountant. He cited the case of AFRICAN CONTINENTAL BANK PLC V NBISIKE [1995] 8 NWLR (PT 416) 725, where the court held that the applicable rule governing the award of damages is as laid down in the 19th century English case of HADLEY V BAXENDALE (1854) 9 EXHIBIT 34. The principles enshrined therein are that the damages in respect of breach of contract should be such as (i) may fairly and reasonably be considered either arising naturally, that is, according to the usual course of things from such breach itself of (ii) may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it. These principles have been adopted in our courts. He cited the cases of PRODUCE MARKETING BOARD V ADEWUNMI [1972] 1 ALL NLR (PT 2) 433 AT 438; PZ AND CO LTD V OGEDENGBE [1972] 1 ALL NLR (PT 1) 202 AT 205-206; OKONGWU V N.N.P C [1989] 7 SCNJ 1004 H 116-117. Counsel commends these cases and principles to the court for consideration. On issue three, counsel contended that defamation may arise in the course of terminating an employee's employment if untrue imputation is made of and concerning him and such termination is communicated to persons outside the employment. He cited the cases of OGBAJI V. AREWA TEXTILES PLC & ANOR [2000] FWLR (PT 24) 1493; KATTO V CENTRAL BANK OF NIGERIA [1999] 6 NWLR (PT 607) 390. Counsel submitted that by Exhibit B5 which is the letter of dismissal of the claimant by the defendant which reads inter alia that ….. "but on numerous occasions you have exhibited gross incompetence and refused to improve with all the room given to you to do so" ….and goes on to list numerous serious allegations of misconduct against the claimant. These words, counsel submitted, in their ordinary and grammatical meaning impute and are intended to impute the character and integrity of the claimant. They portray him as someone who is not worthy of the company of decent persons and have effectively rendered him unemployable. OGBAJI V. AREWA TEXTILES PLC; he also cited the case of INLAND BANK (NIG) PLC V F &S CO LTD [2010] 15 NWLR (PT. 1216) 395, where the court of Appeal listed the ingredients of libel as follows:- a. That there was a publication in writing b. That the publication was false c. That the publication is defamatory of the plaintiff; d. That the defamatory statement was published to a third party. e. That it was the defendant who published the defamatory words. Counsel stated that the particulars of the publication of the letter of dismissal (Exhibit B5) are stated at paragraphs 26, 27 and 28 of the Claimant’s written statement of Oath. Paragraphs 26 states thus: “That the defendant caused the letter of dismissal to be posted on the entrance gate to the defendant and on the outside wall of the defendant’s building”. Counsel submitted that the publication to the whole world was intended to ridicule the claimant as this averment in the claimant's affidavit was never challenged by the defendant on Oath and where an averment is not denied in an affidavit, such averment is deemed to have been admitted. He cited the cases of A.G OGUN STATE V COKER [1993] 9 NWLR (PT 316) 241; KOTOYE V SARAKI [1993] 5 NWLR PT 296 710; A.G• PLATEAU STATE V A.G NASARAWA STATE [2005] 9 NWLR (PT 930) 421; ADAMU V AKUKULIA [2005] 11 NWLR (PT 936) 263. Counsel submitted that paragraphs 27 and 28 of the Claimant deposition on Oath (Exhibit A) averred, that the defendant caused the letter of dismissal to be read to the staff and pasted same on the outside walls of the company and that the claimant started receiving numerous calls from friends and well-wishers about the letter of dismissal same averment was not denied in the defendant's witnesses depositions on Oath. Counsel urge the court to hold that there was publication of derogatory imputations contained in Exhibit B5 and the measure of damages in the tort of defamation depends on the status of the claimant and the effect such defamation has or is likely to have on the claimant. The claimant was until his dismissal, the General Manager of the defendant. The publication of the dismissal letter has brought the claimant to public ridicule and his chances of securing another employment have been rendered difficult. He cited the case of SONIBARE V SOLEYE [2009] 12 NWLR PT (1155) 275 where the court held that the award of damages in defamation must be adequate to repair the injury to the plaintiff reputation which was damaged. Counsel urge the court to award aggravated and exemplary damages to the claimant and order the defendant to tender a written apology to him so as to moderate his injured feelings and personality. The defendant on the 24th of June, 2014, filed its Reply on points of law wherein it raised four issues for the court’s determination; 1. Whether it is a requirement of law that notice and a fair hearing should be given to an employee whose employment lacks statutory flavor prior to his summary dismissal. 2. Where the contract of employment consists of multiple documents whether one can be read in isolation of the other to determine the appropriate notice period of termination. 3. Whether failure to set out the precise words complained of is not fatal to an action for libel. 4. Whether a letter of dismissal issued solely to the employee satisfies the requirement of publication in tort of libel. On issue one counsel contended that the claimant in his written submission failed to distinguish between the determination of a contract of employment by termination where notice or payment in lieu of notice is required and a dismissal for misconduct where notice or fair hearing is not a requirement. He cited the case of ABOMELI V NRC [1995] 1 NWLR (PT. 372) 451 AT 468. Counsel submitted that in dismissing the employee for misconduct, the employer has no obligation to give notice to the employee. He cited the case of NNB PLC V OSUNDE [ 1998] 9 NWLR (PT. 566) 511 AT 521.It is counsel’s contention that since there was no agreed procedure for dismissal the defendant however retains the common law right to dismiss for misconduct since claimant’s employment is contractual and not constitution al thus claimant need not be granted fair hearing as such. Counsel urge the court to so hold. Learned counsel argued that claimant intends to mislead the court as in paragraph 4.2.0 of his Written Address, he claims that paragraph 3 of claimant’s Additional Statement on Oath were not denied or controverted. He submitted that paragraph 13 off Exhibit AM and paragraph 15, 16 and 35 of Exhibit S.O all had the effect of denying the allegation that the laid down procedure for evaluation was not followed. On issue two, counsel submitted that it is the law that all documents and or correspondences must be read together. He cited the case of ORIENT BANK V BILANTE [1997] 8 NWLR (PT 515) 37 AT 78-79. Counsel submitted that Exhibit B claimant’s appointment letter and Exhibit B1 and the letter elevating him to the position of a General Manager must be construed together in other to determine the period of notice agreed by the parties to terminate the contract. Counsel stated that under Exhibit B, the period of notices stated therein is one month notice in writing by either of the parties and under Exhibit B1 it three months’ notice in writing or pay Deductions would be applied. That under Exhibit B1 the claimant alone is obligated to give three months’ notice to the defendant, where he fails to do so “pay deductions would be applied” and pay deductions can only be effected by the employer since the employee does not pay wages. On issue three, counsel submitted that it is settled law that whether the wordings complained of by the claimant in an action for libel is libelous is a question of law which is left for the court to determine. He cited the case of OKOLO V MIDWEST NEWSPAPER CORPORATION [1977] 11 NSCC AT 17. He submitted that nowhere in claimant’s pleading did he set out the wording of the dismissal letter he alleged to be libelous. Counsel urge the court to resolve issue three in its favour. On issue four, counsel submitted that it is trite that there must be, inter alia publication of a libel to third party by the defendant in order to sustain a claim for defamation. He cited the case of INLAND BANK NIG PLC V FISHING AND SHRIMPING CO. LTD [2010] 15 NWLR (PT. 1216) 395 AT 409. Counsel submitted that only the claimant had access to his dismissal letter and any third party notice of the letter of dismissal was not the defendant’s making. He cited the case of AMAONWU V AHAOTU [1998] 9 NWLR (PT. 566) 454 AT 467. Counsel urged the court to dismiss the case of the claimant as lacking in merit with substantial cost of N10,000,000.00 I have carefully considered the processes filed by the parties, the arguments of counsel across the divide and the authorities relied upon. It is in my view that the issues for determination are; 1. Whether or not the dismissal of the claimant is wrongful and unjustifiable and if so whether the claimant is entitled to a declaration that his dismissal is illegal, unlawful, arbitrary, unconstitutional actuated by malice null and void. 2. Whether from the facts of this suit the claimant is entitled to his claims. Before going into the merit of this case, I wish to briefly comment on the evidential value of exhibit SO2, i.e. the call log of DW2 tendered, it is observed that it is a photocopy, it has nothing to show that it was signed or that it emanated from the service provider it purportedly emanated from, i.e Rebtel. It is in violation of Section 86 of the evidence Act, 2011, consequently, exhibit SO3, is hereby discountenance and thus expunged from the Court's record. Now, to the merit of this case, the claimant in this suit was employed by the defendant on the 1st of February, 2010. The claimant was appointed as the General Manager of the defendant company on the 17th day of March, 2011and was in same position until he was dismissed by the defendant on the 2nd of April, 2013. Prior to his dismissal, claimant was suspended without pay on the 12th day of November, 2012. The defendant averred by paragraph 18 and 19 that as a result of the claimant performance evaluation below competence level, he was placed under probation on the September, 2012 and when he failed to improve, despite the warning the defendant has no choice than to place him on suspension. From the pleadings and evidence adduced both parties are in consensus that the claimant was placed on suspension without pay. In MR PETER OLASUNKANMI ATOKI V ECOBANK NIGERIA PLC [2014] 47 NLLR (PT 151) 33; Also in IMONIKHE V UNITY BANK PLC [2011] 12 NWLR (PT.1262) 624 SC AT 649, an employer has the right to discipline any erring employee in the interest of the organization or institution, although NEPA V OLAGUNJU [2005]3 NWLR (PT 913) 602 held that it may be otherwise if the contract of employment either expressly or impliedly rules out recourse to discipline by the employer. The legal consequence of suspension is determinable from the terms of employment. In the instant case, the Condition of service Exhibit AM I frontloaded did not provide the employer the right of suspension, it definitely means that there is no express or contractual right of the defendant to suspend without pay. See MR PETER OLASUNKANMI ATOKI V ECOBANK NIGERIA PLC supra. Howbeit, since the claimant did not make a claim for wrongful suspension, the court does not have an inherent power to grant a litigant relief not sought. Now, the gravamen of this suit is on the dismissal of the claimant. The claimant by paragraph 25 of his statement of fact averred that sequel to his suspension, and upon resumption of work on the 2nd of April, 2013, he was handed over a dismissal letter and asked to hand over the defendant property in his possession within thirty minutes of receipt of the letter. The defendant by paragraphs 26 and 27 averred that despite several warnings and opportunity given to the claimant to change and improve on his job as a General Manager, the claimant failed to improve his, performance, mismanaging the company affairs. That his attitude to work shows incompetence, sheer insubordination and disregard for company policy which necessitated his dismissal for misconduct. The claimant by Exhibit AM3 was dismissed by the defendant on the 2nd of April, 2013. It is the defendant submission that the relationship of employer and employee between the claimant and defendant is one of master servant without statutory flavor, thus no obligation on the part of the defendant to accord the claimant fair hearing prior to dismissing him for misconduct. The term of contract of service is the bedrock or foundation of any case where the issue of wrongful termination or dismissal of employment calls for determination. This may be represented in a letter of employment of an employee's handbook. It is on record that the claimant in this case was only given an employment letter and nothing more, thus this case shall be determined based on the terms as expressed in that letter, and other issues not provided for like the issue of dismissal shall be considered in accordance with the rule of common law. Now, the position of the law is that ordinarily a master is entitled to dismiss his servant for good or bad reason or for no reason at all, provided the terms and conditions of employment is observed. A dismissal cannot however, be justified in the absence of adequate opportunity offered to the employee to explain, justify or else defend the alleged misconduct and before an employer can dispense with the services of his employee under common law, all he needs to do is to afford the employee an opportunity of being heard before exercising his power of summary dismissal. See MR. JAMES O. AVRE V NIGERIA POSTAL SERVICE [2014] 46 NLLR (PT. 147) 1; UZOHO V TASK FORCE ON HOSPITAL MANAGEMENT [2004] 5 NWLR (PT. 867) 627; In EKUNOLA V C.B.N & ANOR [2013] LPELR, 20391; the apex Court stressed the need for an employer to follow the right procedure before summary dismissal. The law is trite that when an employee is accused of a particularly unpleasant act/misconduct in the workplace, the employer is required to follow the rules when it comes to dismissing him or her. The following procedure should be followed by employers when terminating an employee for a purported act of gross misconduct at common law: • Undertake a thorough investigation into the alleged act of misconduct by giving a query to the employee; • Carry out interviews with the culprit and any witnesses who were present at the time • Supply details of the offence in writing to the employee, along with any evidence which is to be used against him • Call a disciplinary hearing, at which the employee should have the right to be heard. • Make a decision on the issue following the hearing. • Notify the employee of the decision. As stated earlier, an employer reserve a right to hire and fire without given any reason, but where it does, it must justify same, differently put it must prove the reasons for dismissing its employee. It is the contention of the defendant as highlighted in his letter of summary dismissal, that claimant flouted company's accounting standard, failure to set precedent and control the 'chitin store' incident where an account staff delivered a product with signed paper work from the claimant, an act allegedly prohibited by the defendant, lackadaisical attitude in the purchase of the reverse osmosis, authorizing a sales rep to release products for a customer on a non-working day; failure to officially communicate to Jos distributor on the change and new terms of transportation order and use of unprofessional telephone conversation to deal with a distributor; general poor planning and management skill. These are majorly the misconducts leading to summary dismissal of the claimant, in its attempt to justify its claims the defendant by sworn testimonies of its witnesses, DW1, Amaka Moh who admitted under cross examination that he was not in Nigeria when the issue bordering on flouting accounting standard occurred, which is one of the reasons given by the defendant for summarily dismissing the claimant. She only approved funds for the purchase of the reverse osmosis and that is all. It was also revealed under cross examination that the claimant was bye passed in the dealings in the company. When DW1 admitted that a mail was sent to her by one Mr. Ijeh without recourse to the claimant, and she stated that the former did so to deal with somebody he expected to get best result. DW2 on her part admitted that so many people applied for the position of General Manager, but claimant was given the position because of his performance. She admitted that the claimant was dismissed without recourse to procedure because he was given verbal queries. Going by what is on record, it is plain that the defendant could not justify or substantiate the reasons for the summary dismissal of the claimant coupled with the fact that he was not given fair hearing, thereby breaching the rules of natural justice. Claimant was neither issued any query nor was he accorded a right to be heard but was summarily dismissed from the employment of the defendant vide a letter dated 2nd of April, 2013 without any just cause. I say so because, there is nothing on record to show that he was confronted with any allegation, not even the reasons enumerated in his letter of dismissal was put to him to give any explanation, before he was summarily dismissed by the defendant. It is from all the above that I find and hold that the claimant's summary dismissal is wrongful as same was done in bad faith. I so hold. Having held the claimant’s dismissal was wrongful, the claimant by claims C of his claims prayed the court to declare the performance Review exercise of the claimant by the defendant through the Chief Executive officer wrongful as same is contrary to the practice and procedure laid down by the defendant. The claimant by paragraph 17 averred that; “The normal procedure and established practice of evaluating the performance of an employee in the defendant company, is for the employee to be given the Management evaluation documents for self –evaluation, submit same to his line evaluation Manager after which a date is fixed for the line Manger to evaluate the employee.” The defendant by paragraph 12 averred that the defendant adhered to the usual procedure in evaluating the performance of the claimant and found the claimant below expectation. The law is that where parties to a contract of employment have reduced the terms and conditions of service into an agreement, the conditions must be observed. See E.AGARUBA V KWARA INVESTMENT COMPANY LTD & ORS [2014] 40 NLLR (PT. 124) 482. In the instant case, by Exhibit B2, the performance review procedure provides that; “Each employee will be evaluated by their line manager. There is a self-evaluation form for evaluation that can be completed before or during the review process. A self-review completed before the interview makes for a good review session. All review session will be in private between the manager and staff. The employee should be given the opportunity to express their assessment of their performance for the period” By paragraph 18 claimant stated that he was given Management evaluation documents for self –evaluation after the defendant had carried out the evaluation, that is a case of medicine after death. Hence it will be right to say that the usual procedure for performance review as provided for in Exhibit B2 was not followed by the defendant. However, the law is that a declaratory order is not made in contract of personal service unless the facts and circumstances of the case warrant the making of such an order. See A.C.B. V NWODIKA [1996] 4 NWLR (PT.443) 470. It is in the candid view of this Court that the circumstance of this case does not warrant making a declaration order as regards the evaluation of the claimant by the defendant. It is also of important to state at this stage that the Court cannot compel an unwilling employer to reinstate or retain his employee. Consequently, I find and hold that although the claimant's dismissal is wrongful, the Court cannot order for his reinstatement in the circumstances of this case being a master servant relationship. On the second issue, the claimant by his General complaint dated 18th July, 2013 prayed for the sum of N574,000 being three months salary in lieu of notice. This relief as claimed by the claimant was not substantiated for in his pleadings. It is the law that in dismissing an employee, the employer need not give a notice, all it need do is to follow the procedure as enumerated earlier in this judgment. Put in another way, an employee whose employment is summarily dismissal is not entitle to any notice, or salary in lieu of notice. His entitlement in damages is for what he was supposed to have earned if his employment was not determined i.e the amount he would have earned had he continued with the employment See JIRGBAGH V U.B.N PLC[2001] 2 NWLR(PT. 696) 11; EMOPKAEV UNIVERSITY OF BENIN [2002] 17 NWLR (PT. 795) 139. As regards, claim (d) of the claimant, which is the sum of N10,000,000.00 as aggravated damages for wrongful dismissal. As decided supra, claimant is entitle to damages in terms of what he would have earned had he be in employment. Considering the way and manner claimant was dismissed as evinced on record and considering the totality of the facts before the Court and by Section 19 (d) of the National Industrial Court Act, 2006, which empowers, this Court to award compensation or damages in circumstances like this, this has also been given a nod in the case of BRITISH AIRWAYS V ATOYEBI [2014] 13 NWLR (PT.1424) P. 253 @ 286, Paras B-C; the apex Court per Kekere Ekun JSC, held thus- '' The primary object of an award of damages is to compensate the plaintiff for the harm done to him; while a possible secondary object is to punish the defendant for his conduct in inflicting that harm.'' It has been decided supra in this judgment that the claimant is entitle to damages in terms of what he would have earned had he be in employment, this Court as a Court of law and equity will award adequate compensation to the claimant as regards what he would have earned had he remained in employment of the defendant. Consequently, on the authority of Section 19(d) of the National Industrial Court Act 2006 and case law authority of BRITISH AIRWAYS V ATOYEBI supra , I find and hold that claimant is entitle to six months salary as damages for wrongful dismissal. I so hold. Finally, parties joined issues as regards defamation/libel of the claimant, to the claimant, the pasting of his letter of dismissal outside the gate of the defendant's office and also reading the content to other members of staff as derogatory and libelous. On its own part the defendant posited that the claimant did not plead the exact derogatory words used and urged the Court to discountenance with same. Defamation of character is not within the ambit of the jurisdiction of this Court hence, I desist from embarking on the academic evaluation of this issue. Whether or not pasting of claimant's dismissal letter, informing defendant's customer or reading out the letter to its staff is defamatory/libelous is not within the competence of this Court to decide. Claimant may ventilate this claim in the High Court being a tortuous act. I so hold. On the whole, the claimant’s claims succeed in parts. For the avoidance of doubt, I hereby order as follows- 1. That the dismissal of the claimant from the employment of the defendant without due recourse to fair hearing is wrongful. 2. That the claimant is entitle to damages. 3. I award the sum of N948, 000.00 as six months salary of the claimant as damages for his wrongful dismissal. 4. I award the cost of N20, 000 to the claimant. 5. All sums awarded in this judgment shall be paid by the defendant within 30 days of this judgment, failing which 10% interest per annum shall be paid on the judgment. Judgment is entered accordingly. HON. JUSTICE OYEWUMI OYEBIOLA O. JUDGE