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REPRESENTATION R. A. MANGA for the claimant M. T. OJONG for the defendant JUDGEMENT The Claimant instituted this action via a Complaint with the accompanying frontloaded documents filed on 10th June, 2014 against the defendant for the following reliefs: 1. A declaration that the claimant is not guilty of fraud and any action of the defendant based on fraud is null and void. 2. A declaration that claimant was denied fair hearing thereby violating the rules of natural justice upon which he was purportedly dismissed. 3. A declaration that the dismissal of the claimant by the defendant violates the contract between them and therefore wrongful. 4. An order setting aside the purported dismissal of the claimant and converting same to termination of appointment with all its benefits under the contract of employment. 5. An order restricting the defendant, their privies, agents, etc. from seizing, impounding or doing otherwise with the claimant’s car arising from the car loan granted the claimant. 6. #10,000,000.00 (Ten Million Naira) only damages for breach of contract. 7. #10,000,000.00 (Ten Million Naira) only damages for negligence. 8. #200,000,000.00 (Two Hundred Million Naira) only for general damages. 9. #1,000,000.00 (One Million Naira) only for cost of litigation. The claimant’s case on the record is that the claimant was employed by the defendant in May, 2004 as a messenger and subsequently converted to a clerk in 2009 which rank he retained until 9th April, 2014. His dismissal was founded on a criminal allegation of fraud in debiting Uncial Staff Multipurpose Co-operative Society’s Account with #500,000.00 on 28th January, 2013 and making use of the money before bringing it back to the bank after he was discovered. Secondly, that he singlehandedly raised, signed and posted a credit slip for the said sum of #500,000.00 into the said account, thereby initiating and concluding the transaction alone for that reason negating the rules of segregation of duty and best practice. The Claimant pleaded that he ought to have been prosecuted before dismissal on allegation of fraud, alleging denial of fair hearing in that he was compelled to write an explanation of his role the same day and few hours before close of work on 30th September, 2013 shortly after defendant rose from its management meeting. Claimant’s response was forwarded to the General Purpose Committee and the Audit Committee – two domestic investigative Committees set up by the defendant but was denied the opportunity to be heard at all. Claimant denied the allegation of fraud or any evil intent explaining that he mistakenly posted monies as a result of software problems and pressure of work as he was learning computer operation on the job. The Claimant further claimed negligence on the part of the defendant who refused to certify his retirement form for 25% of his retirement savings as requested by Trust Fund Pensions Plc. `The Defendant filed her AMENDED STATEMENT OF DEFENCE on 20th May, 2015. Defendant’s described all the averments contained in paragraphs 4-7 of the Statement of Facts as the weak outcry of a sinking man, a bundle of deliberate lies, misrepresentations and mischievous. The Defendant pleaded that in all cases, claimant was given fair hearing and he was accorded every opportunity of sending his written representations by way of replies to queries, before conclusions are reached by the defendant; also, that he petitioned the Board after his suspension and was granted a hearing. The defendant’s further pleaded that on 28th July, 2009, claimant was queried when found to be habitually disappearing from the bank cage and spending time outside the banking premises, when he is supposed to be in custody of cash which ought to be used in servicing customers. That the claimant’s answer to his query was unsatisfactory as it was in rude language, unsigned and personally addressed to the officer in charge of customer service and that he was accordingly cautioned on 30th July, 2009. The Defendant stated that she is not accountable to whatever hardship the claimant is presently undergoing as she was very lenient with the claimant, giving him ample opportunity to change but he persisted in misconduct which resulted to his dismissal. The Defendant pleaded that the claimant’s car loan was a product of a loan agreement which he must service and that it was not predicated on any condition. The Defendant averred that she is under no obligation to mislead the Trust Fund Pensions Plc. that claimant was retired as he was not retired but dismissed and that fact was brought to the knowledge of the Trust Fund in the defendant’s letter of 7th May, 2015. The Defendant stated that she is not liable to the defendant in any way as his dismissal was in order and long overdue and in line with management and personnel policy. At the trial the claimant testifies as CW adopted his written statements on oath which were dated 10th June 2014 and 19th September 20114 which were marked Exhibits C1 and Exhibit C2 respectively. The claimant went on to tender fourteen (14) additional exhibits. S/N TENDER BY NICN/CA/49/2014 DOCUMENTS DATED DATE TENDER MARK 1. Claimant Counsel Witness on oath 8/12/14 CW 2. Written statement on oath 10/6/14 8/12/14 C1 3. Additional written statement 16/9/14 “ C2 4. Offer of temporary appt. 24/05/004 “ C3 5. Confirmation of Appt. 9/01/006 “ C4 6. Conversion of the position of a clerk 20/5/009 “ C5 7. Letter of dismissal 9/4/2001 “ C6 8. Debit of N500,000 into Unical 30/9/013 “ C7 9. Statement of Account 31/12/13 “ C8-C82 10. Intervention suspension 25/2/14 “ C9-C93 11. Internal memo 30/9/13 “ C10 12. Management & personnel policy 2/2009 “ C11 13. Re-dismissal of Mr. Ibe Obo 24/4/2014 “ C12-C121 14. Spring bank cheque 11/12/2011 “ C13 15 Re: certificate of retirement 28/10/2014 “ C14-C142 16. Loan agreement B/w Nkan & Ibe 2/2014 “ C15 17. Notice of quit 26/2/2015 “ C16 During cross examination the claimant further started that the Bank was supposed to certify that he had retired for him to receive his pension and that due to the non-certification of exhibit C14 (2) he was forced to borrow money when his wife was in a coma and as he was unable to pay his house rent he received a quit notice all due to the defendants refusal to sign the form to enable him receive his pension, he testified on the next adjourn date under further cross examination that he was issued four queries and cautions prior to the incident, that he was the only cashier asked about the missing N500, 000.00 and that in February 2012 he was placed on suspension, that he wrote to the VC to look in to the matter and the board did nothing, the claimant testified that he was invited and appeared before a three man audit panel where he explained the situation and they realized the money was not missing, as the account balance and it was only to the Physical cashier that the money was missing. He went on to state that he reported these fact to his Head of operation and Cash Officer Adamu but that he did not include the fact the he had so reported in his reply to the query Exhibit C9. The defendants called one Onoyiom Okon Ekpo the defendants Human Resource Manager who testified as DW , adopted his written statement on oath of 25th May 2015 which was marked as Exhibit D1 and went on to tender 15 other documents. 1. Defendant counsel Witness on oath 28/10/15 2 Written statement on 20/5/15 “ D1 3. Query irregular banking practice 28/7/09 “ D2 4 Letter of caution 30//7/09 “ D3 5. Query: gross misconduct 24/3/10 “ D4 6 Warning letter 8/4/10 “ D5 7 Unethical conduct letter 9/2/12 “ D6 8. Letter of caution 15/2/12 “ D7 9. Letter of warning 22/4/13 “ D8 10. Suspension from duty 24/2/14 “ D10 11. Internal memo 25/2/14 “ D11(1-2) 12. Re: authorization power 19/3/13 “ D12 13. Re: infraction committed “ D13 14. Letter of dismissal 7/5/15 “ D14 During cross examination DW testified that the claimant was employed as a messenger and promoted to clerk and cashier, that he was granted a car loan in 2013 and that the claimant was dismissed for fraud as the sum of N500, 000.00 was taken by the claimant using cheque leave and returned when it was discovered. He was unable to tell the court what the claimant used the money and that all the transactions took place in the banking hall. They acknowledged that Exhibit C14(2) was not signed or stamped by the defendant. At the close of trial parties filed their final written addresses in line with Or 19(20). The DEFENDANT’S FINAL ADDRESS dated and filed on 11th December, 2015. Wherein the defendants raised two (2) ISSUES: 1. Whether the claimant’s dismissal was wrongful from the circumstances of this case. 2. Whether claimant is entitled to any of the reliefs claimed. ON ISSUE 1 Whether the claimant’s dismissal was wrongful from the circumstances of this case. The Learned Defence Counsel M. T. OJONG Esq. submitted that it is not borne out of any piece of evidence that claimant’s employment was with statutory flavour which ought to have been determined in accordance with the rules, regulations and statute governing his employment. Rather, that the “claimant was in a master-servant relationship whose employment was governed by common law rules which emphasize reliance on terms of employment or contract of service”; and that the basic law is that a servant cannot be foisted on a master. MOBIL PRODUCTION v. UDO UDO (2008) 36 CRN 53. Furthermore, that an employer is not duty bound to state reasons for termination of the employee’s appointment but when he does so, he must justify his action. ONUJUYIGBE v. NIPOST (2010) 24 WRN 70; OLATUNBOSUN v. NISER COUNCIL (1988) 3 NWLR (PT. 80) 25. Learned Counsel to the defendant contended that the applicant’s years of service with the bank were actually turbulent and controversial and no sane and serious establishment much more a financial institution will take the risk of retaining the services of the claimant. GATEWAY BANK OF NIG. PLC v. ABOSEDE (2001) FWRL (PT. 79) 1320, per Akintan, JCA (as he then was). ON ISSUE 2 Whether claimant is entitled to any of the reliefs claimed. The Defendant’s Counsel argued that having failed to prove wrongful dismissal, claimant is not entitled to any of the reliefs that he is claiming. KWARA STATE C.S.C v. ABIODUN (2010) 14 WRN 52, per Agube, JCA; AMODU v. AMODE (1990) 5 NWLR (PT. 150) 556, per Agbaje, JSC (Rtd.); IWUCHUKWU v. NWIZU (1994) 7 NWLR (PT. 357) 379; PETROLEUM TRAINING INSTITUTE v. MATTHEW & ORS. (2011) 39 WRN 134, per Gumel, JCA; KATTO v. CBN (1990) 69 LRCN 119. Agreeing with claimant’s contention that having been dismissed on fraud and other reasons, he ought to have been prosecuted in Court and the allegation proved beyond all reasonable doubts, counsel submitted that the position of the law is that if in any proceeding an allegation of commission of crime arises with, such allegation ought to be proved beyond all reasonable doubt. OKWUSIDI v. LADOKE AKINTOLA UNIVEERSITY (2011) 48 WRN 167. The Learned Counsel to the defendant argued that the above submission will not apply in this case as claimant was dismissed partly on grounds of fraud for debiting an account belonging to Unical Staff Multi-purpose Co-operative Society fraudulently and returning the sum later. He reasoned that having admitted and reversed the debited account by lodging the missing sum there was no need to embark on a needless criminal trial. OKWUSIDI v. LADOKE AKINTOLA UNIVEERSITY (supra); FCSC v. LAOYE (1989) 2 NWLR (PT. 106) 65; GARBA v. UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (PT. 18) 550. Counsel to the defendant submitted that the issue of the claimant’s car loan, personal loan and eviction by his landlord are personal and have nothing to do with the defendant and that the claimant is not entitled to damages of any coloration in the circumstances; and that the claimant should be made to pay cost for dragging the defendant into an unmeritous litigation. MOBIL PRODUCTION NIGERIA UNLTD. v. UDO UDO (2008) 36 WRN 71; AGBANEJO v. UBN PLC (2000) 23 WRN 1; FBN PLC v. UNUKWUGHA (2005) 6 NWLR (PT. 950) 120; YALAJU AMAYE v. A.R.E.C. LTD. (1990) 4 NWLR (PT. 145) 422. The CLAIMANT’S FINAL WRITTEN ADDRESS dated and filed on 18th January, 2016. Wherein the claimants raised three (3) issues for determination 1. Whether the defendant has by evidence justified the reasons stated in Exhibit C-6 for the dismissal of the claimant from his employment and if not, whether the claimant’s dismissal is not wrongful. 2. Whether failure by the defendant to prosecute the claimant in the circumstances of this case and the violation of the rules of natural justice does not make claimant’s dismissal wrongful. 3. Whether the claimant is not entitled to damages for negligence and all other reliefs sought in this suit as per his Amended Statement of Facts. ON ISSUE 1 Whether the defendant has by evidence justified the reasons stated in Exhibit C-6 for the dismissal of the claimant from his employment and if not, whether the claimant’s dismissal is not wrongful. Learned Claimant’s Counsel R. A. Manga submitted that the claimant’s dismissal evidenced by Exhibit C-6 is wrongful and that the law is that the employer is not otherwise required to give any reason for a dismissal, but once reasons are given at all and they are disputed in court, the onus lies on the employer to justify the reasons by evidential proof, else the dismissal is wrongful. EZE v. SPRING BANK PLC (2012) ALL FWLR (PT. 609) 1076 @ 1098-1099, PARAS. H-D, HELD 8; N.E.P.A. v. ADEYEMI (2007) 2 NWLR (PT. 1021) 315 @ 331-332, PARAS. H-B; SEC. 136 (1) of the EVIDENCE ACT, 2011 (as amended); ENTERPRISE BANK LTD. AMAO (2014) ALL FWLR (PT. 738) 994 @ 1009, PARAS. A-H. Submitting that where fraud is intended to be proved, it must be distinctively charged and its details specified, that general allegations as in the instant case, however strong, are insufficient to amount to an averment of fraud of which any court ought to take notice. Furthermore, that it will not be sufficient to make a vague allegation of fraud without more as the defendant did without specially pleading and particularizing fraud. WALLINGFORD v. MUTUAL SOCIETY (1880) 5 A.C. 697; OJEMALE INVESTMENT LTD. v. A.G. FEDERATION (2011) ALL FWLR (PT. 582) 1738 @ 1797, PARAS. C-D. Claimant’s Counsel contended that for an allegation of fraud to avail the defendant, it must be on matters relevant to the case as set up by the claimant. OKOLI v. MORECABS FINANCE (NIG.) LTD. (2007) 14 NWLR (PT. 1053) 37 @ 59, PARAS. F-H. Furthermore, that the defendant failed to prove fraud beyond reasonable doubt as the standard of proof requires and that to prove fraud beyond reasonable doubt, every ingredient which constitutes the totality of the offence must be established, if there is failure to establish one element, there is then a failure to prove fraud beyond reasonable doubt. SEC. 134 (1) EVIDENCE ACT, 2011; OBITUNDE v. ONYESOM COMMUNITY BANK LTD. (2014) ALL FWLR (PT. 739) 1097 @ 1124, PARA. B (SC); EYO v. STATE (2012) ALL FWLR (PT. 657) 763 @ 776-777, PARAS. A-E. Arguing further that to prove the ingredients of fraud, the defendant must prove that the claimant had mens rea and actus reus. ABEKE v. STATE (2007) 9 NWLR (PT. 1040) 411 @ 429-430, PARAS. A-B (SC); UNIVERSITY OF CALABAR v. UGOCHUKWU (NO. 2) (2007) 17 NWLR (PT. 1063) 248 @ 264, PARAS. E-G. Learned Counsel to the claimant urged the Court to presume that if the said evidence were available was produced, it would have been unfavourable to the defendant under Sec. 167 (d) Evidence Act, 2011. However, that a mere report of an ad-hoc committee such as Exhibit D-11 tendered in evidence is held to be insufficient to prove an allegation of crime beyond reasonable doubt as it is not ipso facto evidence of guilt before a court, and therefore, irrelevant and when admitted in evidence little of no weight can be attached to it. N.E.P.A. v. ADEYEMI (supra) @ 331-332, PARAS.H-B; 333, PARAS. D-H; S.P.D.C. v. OLAREWAJU (2009) ALL FWRL (PT. 458) 208 @ 225, PARAS. F-G. Counsel to the defendant contended that there are no pleaded facts and evidence on HOW and WHEN the money was discovered and that the address of defendant’s counsel in page 4, PARA. 6 cannot substitute for evidence. ATAMAH v. EBOSELE (2010) ALL FWLR (PT. 506) 1925 @ 1399, PARA. E. Furthermore, that the defendant has an unshifting burden to prove all and not only some of the ingredients of fraud and the introduced more that required particulars beyond reasonable doubt. ADENIYI v. F.R.N (2012) ALL FWLR (PT. 646) 575 @ 592-593; EYO v. STATE (supra). On the second reason why claimant was dismissed, that is, singlehandedly raising, signing and posting a credit slip for the #500,000 into the Account, thereby initiating and concluding the transaction alone and for that reason negating the rules of segregation of duty and best practice” – Exhibit C-6, counsel submitted that the defendant did not by any shred of evidence justify this allegation. MINI LODGE LTD. v. NGEI (2010) ALL FWLR (PT. 506) 1806 @ 1821. He submitted that when a document is pleaded, it must be used to establish only that fact upon which it was pleaded. OMEGA BANK PLC v. O.B.C. LTD. (2005) ALL FWLR (PT. 249) 1964. The Counsel to the claimant further argued that assuming but not conceding that defendant can rely on Exhibit D11, the report in finding Nos. 7 and 10 as it concerns this issue did not state that evidence was taken from claimant’s superior officers mentioned therein before those conclusions were reached and that it is not the business of the Court to speculate or investigate but to adjudicate. RIVERS VEGETABLE OIL CO. LTD. Vs. EGUKOLE (2010) ALL FWLR (PT. 544) 111 @ 130, PARAS. E-F. ON ISSUE 2 Whether failure by the defendant to prosecute the claimant in the circumstances of this case and the violation of the rules of natural justice does not make claimant’s dismissal wrongful. The Claimant Counsel submitted that the claimant was not dismissed in accordance with the terms of the contract of his employment as contained in Exhibit C-11 and that the facts of this case reveal that the allegation of fraud levied against the claimant was consistently denied. A.G. KWARA STATE v. OJULARI (2007) 1 NWLR (PT. 1016) 551@ 571-572, PARAS. F-A. He submitted that from Sec. 36 (1) of the 1999 Constitution, apart from courts, other constituted administrative/adjudicating bodies though not expected to act fully like a court of law must in their hearing of matters act in good faith and fairly. JUDICIAL SERVICE COMMISSION OF CROSS RIVER STATE v. YOUNG (2013) 5-7 MJSC (PT. 11) 97 @ 116-117, PARAS. G-D; DISTRICT OFFICER v. QUEEN (1961) SCNLR 83; LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL v. CHIEF GANI FAWEHINMI (1985) 2 NWLR (PT. 7) 300 @ 347. It is counsel’s contention that the claimant being summoned on phone by the General Purpose Committee on one of the proceedings and showed Exhibit C-8 on reversal of wrongly posted cash is at best a staggered process reminiscent of a patch work. DENLONYE v. MEDICAL AND DENTAL PRACTITIONERS DISCIPLINARY COMMITTEE (1968) 1 ALL NLR 306; COMMANDER-IN-CHIEF OF ARMED FORCES OF NIGERIA v. PUBLIC SERVICE COMMISSION MID-WEST (1974) 9 NSCC 509; BABA v. N.C.A.T.C. (1991) 5 NWLR (PT. 192) 388 @ 423, per Nnaemeka-Agu, JSC; P.H.M.B. v. EDOSA (2001) 5 NWLR (PT. 707) 612. Learned claimant’s Counsel submitted that the defendant did not make an attempt to comply with the requirements of a fair hearing and their defence, that they sent queries to the claimant and his answers were used to reach their conclusions will not avail them. JUDICIAL SERVICE COMMISSION OF CROSS RIVER STATE v. YOUNG (supra) P. 126, PARAS. A-B He submitted that to satisfy the rule of natural justice and fair hearing, the Supreme Court says a person likely to be affected directly by disciplinary proceedings, like the claimant, must be given adequate notice of the allegation against him to enable him make representation in his own defence. YUSUF v. U.B.N. LTD. (1996) 6 NWLR (PT. 457) 632 @ 644-645, PARAS. H-A. Furthermore, that once a court comes to the conclusion that the party was entitled to be heard before a decision was reached but was not given the opportunity of a hearing, the decision reached is bound to be set aside. YUSUF v. U.B.N. LTD. (supra) 646, PARAS. F-G; EZE v. SPRING BANK PLC (2012) FWLR (PT. 609) 1076 @ 1105, PARAS. A-D, HELD 5. ON ISSUE 3 Whether the claimant is not entitled to damages for negligence and all other reliefs sought in this suit as per his Amended Statement of Facts. Learned Counsel to the claimant, submitted that where facts are pleaded and evidence is not led on those pleaded facts, the defendant is deemed to abandon the facts pleaded as moribund. MANSON v. H.E.S. (NIG.) LTD. (2007) ALL FWLR (PT. 358) 1067 @ 1084, PARAS. D-F. Learned Counsel further argued that Exhibit D-14 dated 7th May, 2015 tendered by the defendant as a purported response to Exhibit C-14 dated 28th October, 2014 was made when claimant had amended his Statement of Facts on 9th April, 2015 to include a claim for negligence on those facts, thus, Exhibit D-14 is a statement made by the defendant as a person interested at a time when proceedings were pending involving a dispute as to the facts which the statement might tend to establish under Sec. 83 (3) of the Evidence Act, 2011; that such document ought not to be admitted in evidence. M.W.T. (NIG.) LTD. v. P.T.F. (2007) 15 NWLR (PT. 1058) 451 @ 495-596, PARAS. F-A. Furthermore, that where such document is admitted in evidence, no weight is placed on the document and the court is entitled to take the evidence of the claimant on negligence as true. N.E.P.A. v. ADEYEMI (supra) 333, PARAS. D-H; M.W.T. (NIG.) LTD. v. P.T.F. (supra) 480, PARAS. D-F. Claimant Counsel submitted that claimant has proved other heads of claims and entitled to the reliefs sought as per his Amended Statement of Facts and that since the court cannot reinstate the claimant having proved wrongful dismissal, claimant is entitled to benefits under Article 6.4 (i) (d) and (ii) of Exhibit C-11 under relief 4 being what he would have earned if his employment was properly and validly determined. OSISANYA v. AFRIBANK (NIG.) PLC (2007) 6 NWLR (PT. 1031) 565 @ 586, PARAS. D-E. Additionally, he contended that claimant is entitled to the salary for the unexpired term of his service to the defendant at a retirement age of 60 years and gratuity payable at retirement if not the wrongful dismissal. N.E.P.A. v. ADEYEMI (supra) 315 @ 337, PARAS. F-G. On relief No. 8, counsel contended that where allegation of criminal misconduct against the claimant is not proved, claimant is automatically entitled to damages for defamation. N.E.P.A. v. ADEYEMI (supra) 337, PARA. H; AYENI v. TEXACO (NIG.) LTD (1987) 3 NWLR (PT. 62) 577. He argued that the right of fair hearing guaranteed under the Constitution is not a mere right, it is a special one whose redress include compensation for the damage done. RANSOME-KUTI v. AG.G FEDERATION (2001) ALL FWRL (PT. 80) 1637 @ 1677; IDAKWO v. EJIGA (2002) 12 MJSC 81 @ 89, PARAS. B-C. Regarding relief 9, Claimant’s counsel submitted that claimant is entitled to cost of litigating this suit as it is the law that cost follows events and a successful party is entitled to costs except where there are special reasons for depriving him of such entitlement and these ought to be shown by the court. A.C.B. LTD. (AJUGWO (2012) ALL FWLR (PT. 607) 697 @ 720, PARAS. F-G. Furthermore, that in considering award of such cost, the guiding principles are; the summons fees, the duration of the case, the vexations of frivolous nature of the defence, the cost of legal representation, the monetary value at the time of this expenses and the value and purchasing power of the currency of award at the time of the award. MASTER HOLDINGS (NIG.) LTD. v. OKEFEINA (2012) ALL FWLR (PT. 648) 921 @ 941-942, PARAS. F-A. On 26th January 2015 the parties adopted their respective Final Written Addresses and adumbrated their respective positions, During adumbration the defendant counsel M. T. Ojong submitted that the claimants case was bad for mis-joinder of causes of action: wrongful dismissal, defamation and negligence, arguing that by a Master Servant relationship they were not required to state reasons for dismissing the claimant but we must justify them and we have. The defendant counsel went on to submit that the defendants have a discretion as to whether or not to prosecute according to the circumstances of the case and that as the money had been repaid the defendants dispensed with the question of prosecution. Contending further that the defendants were not confined to the dismissal letter and that the claimants file; record, was also considered. In conclusion the Defence counsel submitted that the claimant’s dismissal was proper, correct and justified in the circumstances therefore the claimant was not entitled to anything. The claimants Counsel R. A. Manga in adumbrating his Final Written Address countered that there was no misjoinder that all their issues raised were properly argued and that they were all related to the claimants employment and incidental thereto quoting Section 254 C (a) and negligence was connected to the claimants employment arguing further that the defendant owed the claimant a duty to sign Exhibit C14 (2). The claimants counsel also submitted that the defendants cannot go outside the two issues raised in their letter of dismissal and they are required to justify these reasons. At the end of the adumbration the matter was adjourned to 15th March 2016 for Judgement. The Court’s Decision I have carefully summarized the evidence of both sides, the arguments of opposing counsel and carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties. Their written submissions are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. I shall adopt the issues as formulated by the defendant bearing in mind that as per the case of JOSEPH ALPHONUSUS NKUMK Vs. OTUNUYA ODILI [2006] 3 SCNJ 31. “It is the plaintiff who brings a suit also nominates the issues for the decision in the case. …” The issues of the claimant in this suit are;- 1. Whether the defendant has by evidence justified the reasons stated in Exhibit C-6 for the dismissal of the claimant from his employment and if not, whether the claimant’s dismissal is not wrongful. 2. Whether failure by the defendant to prosecute the claimant in the circumstances of this case and the violation of the rules of natural justice does not make claimant’s dismissal wrongful. 3. Whether the claimant is not entitled to damages for negligence and all other reliefs sought in this suit as per his Amended Statement of Facts. Before I delve into the merits of this case it is necessary to note that with regard to the call to expunge and the objections made to documents during trial both parties tendered documents listed above, the defendants have asked that certain documents be expunged for various reason I am guided in admitting and relying on these documents as exhibits in this case being that documentary evidence can be admitted in the absence of the maker. See IGBODIM V. OBIANKE (1976) 9-10 SC 179. After all relevance is the key of admissibility. I shall address each document while dealing with the issues to which they relate. There is no dispute in this case as to the nature of the contract relationship and looking at the claimant’s letter of appointment C3, Letter of Confirmation C3 and the Management And Personnel Policy Manual 2009 Exhibit C11 tendered by the claimant. The Supreme Court in IDERIMA V RIVERS STATE CIVIL SERVICE COMMISSION [2005] LPELR 1420 SC held that “Except in employment governed by statute wherein al the procedure for employment and discipline including dismissal of any employee are clearly spelt out, any other employment outside the statute is governed by the terms which the parties agreed to be master and servant.” I find from the just above stated Exhibits that the employment relationship between the parties in this suit is one of employer / employee commonly referred to as Master/Servant relationship. This regard to issue 1, whether the defendant has by evidence justified the reasons stated in Exhibit C-6 for the dismissal of the claimant from his employment and if not, whether the claimant’s dismissal is not wrongful. The claimant seemed to be under the mis-apprehension that his case was dependent on the defendant not justifying the reason for dismissal. This contention of the claimant runs contrary to the position of the law that it is the person who avers that proves. In a case of U.B.A. PLC v. ORANUBA (2014) 2 NWLR (PT. 1390) 1 @ 5 C.A. It was held that “in an action for wrongful dismissal from employment, the burden is always on the claimant to prove the terms and conditions of his contract of employment and in what manner the said terms were breached by the employer. This is taken from the general principle of law that a plaintiff has the duty to prove his case to the satisfaction of the trial court and has a burden of proof to establish his claim and that burden cannot shift to the defendant unless the claimant has adduced enough evidence that will warrant the defendant to also adduce evidence in rebuttal. OYEDEJI v. OYEDEMI (2008) 6 NWLR (PT. 1084) 485; KONDILINYE v. MBANEFO ODU (1953) 2 WACA 336 @ 337; DALHATU v. ATTORNEY GENERAL, KATSINA STATE (2008) ALL FWLR (PT. 405) 1651 @ 1677-1678; SEC. 136 (1) EVIDENCE ACT, 2011. [ANGEL SPINNING & DYEING LTD. v. AJAH (2003) 13 NWLR (PT. 685) referred to.] (P. 21, PARA. C). The Supreme Court in EKEAGWU Vs. THE NIGERIAN ARMY [2010] LPELR-1076(SC); [2010] 16 NWLR 419 per His Lordship Onnoghen, JSC reminded us that in an action for wrongful termination/dismissal/retirement only two primary issues call for determination. These are: whether the termination/dismissal/retirement of the plaintiff is wrongful; and the measure of damages recoverable where the termination/dismissal/retirement is found to be wrongful. Even at this, the rule is that he who asserts must prove; and in employment law, the onus is on the claimant who asserts that his termination is wrongful to show how wrongful it actually is. And to do this, the claimant must place before the Court the terms of the contract of employment and then prove in what manner the said terms were breached; it is not for the defendant employer to prove any of this. See AKINFE V. UBA PLC [2007] 10 NWLR (PT. 1041) 185 CA and UTC NIGERIA LTD V. PETERS [2009] LPELR-8426(CA) The law is that an employee who complains of wrongful termination of his employment must place before the Court the terms of the contract of employment and then prove how the terms were breached by the employer. See KATTO V. CBN [1999] 6 NWLR (PT. 607) 390 SC. It is to satisfy these requirements that the claimant tendered, among other documents, Exhibit C3. Dated 24/05/2004 Mr. Ibe Obo Ibe Unical Community Bank Ltd University of Calaar Calabar OFFER OF TEMPORARY APPOINTMENT With reference to your application for appointment in the Uncal Community Bank Ltd, I am pleased to imform you that the Chairman, Board of Directors of Unical Community Bank Ltd, has approved an offer of Temporary Appointment to you as a MESSENGER in the Unical Community Bank Ltd. The appointment is with effect from 20th May 2004 being the date of your assumption of duty in the bank while arrangement for the interview continues. You will be placed on a salary of N93, 600.00 per annum and will be entitled to the following allowances: a. Rent allowance - N31,200.00 b. Transport allowance - N7,800.00 c. Utility allowance - N7,800.00 d. Lunch allowance - N7,800.00 e. medical allowance - N7,800.00 Other condition of service remains as at presently in force and contained in the MANUAL OF OPERATIONS for bank staff unless where modified by the Board of Directors. Your are required to indicate your acceptance of this offer in writing at your earlist convenience. Barr. (Miss) Uba E. Eta Board Secretary In the case of LADIPO Vs. CHEVRON (NIG.) LTD [2005] 1 NWLR (PT. 907) 277 CA it was held that what document contains the terms of employment or service is a question of fact; and where more than a single document provide for the terms, such documents must be construed jointly in order to have the correct and total account of what the terms of the contract are. The claimant tendered C11 which provides in paragraph 7.2.11.4 Dismissal When a staff is dismissed from the service of the bank arising/based on the commission of any of the offenses mentioned below, he/she shall not be entitled to any benefits. (viii) refuses or fails to comply with the strategic policies of the bank, rules, procedures and principles laid out in this manual for the operational management of the bank. In all cases of exit, the staff must surrender all the bank’s properties in his/her possession before departure; otherwise any benefits due to the staff shall be withheld until compliance. The defendant issued the claimant with Exhibit C6 Letter of dismissal Dated 9/April,2004 Mr. Ibe Obo Ibe 12 Ekpenong Abasi Street Off Nyaghasang Stree Calabar LETTER OF DISMISSAL The Board of Directors of Unical Microfinance Bank Ltd. At its 60th Regular Meeting held on Wednesday, 2nd April, 2014, received and considered a report from the General Purpose Committee on irregular banking practice leveled against you by the Management of the bank. The decision of the Board is founded upon the report of the Audit Committee of the Board arising from its Emergency Meeting of 21st March, 2014 that you fraudulently debited Unical staff multipurpose co-operative society’s account with N500,000.00 on 28th January, 2013 and made use of the money before bringing it back to the back after it was discovered. It was also revealed that you single handedly raised, signed and posted a credit slip for N500,000.00 into the said account, thereby initiating and concluding the transaction alone, and for that reason negating the rules of segregation of duty and best practice. The Boar, having examined this issue views your action as fraudulent and against banking ethics. In line with S.7.2.11. 4(ii) of the Management and Personnel Policy Manual of the bank, the Board has approved your dismissal from the Bank. By this notice, you are hereby dismissed with effect from 2nd April, 2014. Please be informed that your dismissal from the bank does not foreclose you form paying off any indebtedness that is outstanding against you. Barr. (Ms) Uba. Eta. Board Secretary Now the testimony of the claimant is that he received a cheque of N500, 000.00 from a customer but was unable to pay due to lack of funds but mistakenly posted the amount in his ledger which at the close of the day looked like an under payment. That it was on the next day when he received the e print out of the previous day’s transactions that he spotted the error and credited the account. I find from the claimants on account of what transpired it does appear that the claimant single handedly dealt with the said transaction contrary to the banking policy which involves checks and balances such as in Chapter 5 Paragraph 5.7 (i) page 20 of Exhibit C11 and contrary to paragraph 5.7.(vi) page 21. 5.7(i) Any withdrawals below the mandate of the Branch Manager must be signed by the reference officer, current account officer and the Head of Operations. Any withdrawals above the mandate of the Head of Operations shall be signed by the Reference Officer, current account officer or savings account officer, the Head of Operations and the branch manager. 5.7 (vi) No single staff should have sole control over any bank transaction from the initial stage to the end of the transaction. The claimant testified that his transaction limit was N100, 000.00 but this transaction saw the claimant receiving and processing a cheque single handedly for N500, 000.00 and crediting an account when he noticed the error all by himself. This I find contravenes Paragraph 5.7 (vii) 5.7 (vii) The bank’s level of service delivery shall determine limits of authority to pay on cash instruments/cheques from time to time. Such payments shall only be on accounts with credit balances only. The limits must be adhered to the letter. Such officers to assist in this direction shall include:- -the Head of Accounts -Current Account Officer - Reference Officer In the absence of the Branch Manage, the Head of Operations can pay above the prescribed limit on credit balances only. In the case of overdraft, such payment shall not exceed the normal limit on the affected accounts and such instruments shall be countersigned by the Branch Manager when he comes back. All payments on profit and loss instrument shall be authorized by the Managing Director or Branch manager, as the case may be. The infractions listed above I find come well within the purview of Paragraph 7.2.11.4 7.2.11.4 Dismissal When a staff is dismissed from the service of the bank arising/based on the commission of any of the offenses mentioned below, he/she shall not entitled to any benefits. (viii). Refuses or fails to comply with the strategic policies of the bank, rules, procedures and principles laid out in this manual for the operational management of the bank. In all cases of exit, the staff must surrender all the bank’s properties in his/her possession before departure; otherwise any benefits due to the staff shall be withheld until compliance. It is only when the claimant has established that he was wrongfully dismissed would the defendant be called upon to justify the dismissal. I agree with the claimant that the defendant having given two reasons for the dismissal off the claimant is bound by those two reasons and cannot resort to other past issues or incidents recorded in the claimants file particularly as the rule is that an employer who upon the knowledge of an infraction or failing by an employee chooses to condone same cannot thereafter complain. See EKUNDA V. UNIVERSITY OF IBADAN [200] 12 NWLR (PT. 681) 220 CA, ACB PLC V. NBISIKE [1995] 8 NWLR (PT. 416) 725 CA, NIGERIAN ARMY V. BRIG. GEN. MAUDE AMINU KANO [2010] 1 MJSC (PT. I) 151 and LAWRENCE IDEMUDIA OBORKHALE V. LASU [2013] 30 NLLR (PT. 85) 1 NIC. In that wise all submissions as to the prior acts of the claimant together with exhibits D2, D3, D4, D5, D6, D7 and D8 relating to incidents from 2009 and before the query of Exhibit C10 are hereby discountenanced for purpose of this Judgement as being acts condoned by the defendant for which they cannot sanction the claimant at this time. See CHUKWUDINMA v. ACCESS BANK PLC (2015) 52 NLLR (PT. 176) 513 @ 519 NIC “Where an employer has found the employee guilty of an alleged offence, negligence or misconduct but refuses or fails to take appropriate action against the employee as provided in the condition/terms of employment, the employer will be said to have condoned the act and forgiven the employee”. NIGERIAN ARMY v. BIG. GEN. MAUDE AMINUN-KANO (2010) LPELR – SC.243/2008 referred to.] In addition, Exhibits D 13 is undated and has therefore no probative value and Exhibit D14 arises after the cause of action and I find it has no bearing on this case these documents are also discountenanced for the purposes of this judgement. The claimants maintain that the defendants raised two reasons for the claimants dismissal in Exhibit C6, the fraudulent debiting of the account and single handedly raising, signing a depositing a credit slip. The explanation of the claimant and the allegation of the defendants as to the first are practically the same; the said account was in fact wrongly debited by the claimant, the claimant maintains that it was done inadvertently ,while to the defendant the debiting of the account to the tune of N500, 000.00 was done fraudulently. The defendant in Exhibit C6 described the claimant’s action as fraudulent and against banking policy and contrary to Section 7.2.11.4(ii) which provides that: 7.2.11.4 (ii) is guilty of fraud, forgery, stealing, unauthorized lending, corruption or other grave misconduct that could attract prosecution. The claimants main heavy weather of the issue of fraud and the necessity as well as degree of proof required. Section 7.2.2 of Exhibit C11 defined fraud as;- 7.2.2. Fraud Staff are not expected to be involved in any form of fraud. Fraud is defined here as a malpractice, deception, trickery and in law, it is a general term for any scheme or method used by one person to gain any unfair advantage over another. Any fraud or attempted fraud will attract very severe disciplinary action on the staff while prosecution may not be ruled out however, depending on the nature of the case. The claimants have argued that the subject of fraud being raised and alleged is required to be proved beyond reasonable doubt while the defendants argue that they have a discretion as regard fraud. The criminal code defines fraud as Whereas the online Wikipedia free encyclopedia as at 11/03/2016 21.38 defines fraud as deliberate deception to secure unfair advantage or unlawful gain, or deprive a victim of a legal right. Learned Author Sonia Akinbiyi in her book Crimes, Defences and Sentences First Edition Streams Communication Lagos ©2006 in hetgtr section dealing with Fraudulent Conversion and imputation guilty knowledge at page 167 wrote Fraudulent conversion is determined by fraudulent intention taking knowing it to be the property of another coupled with a further intent to deprive the true owner. It is seldom determined by the facts and circumstances of each case but is complete when a person receives money or part of it to his own use…” From Exhibit C11 which I have found is part of the documents governing the parties relationship the defendant have described what they meant by fraud and I find that the claimant having agreed to the terms cannot import another level or degree into the interpretation, the definition in Section 7.2.2. is quite distinct from the criminal definition of fraud In the circumstances of this case I find that the definition of the Exhibit C11 suffices for the purpose of this case especially as both the parties are bound by it and nothing contained in Section 7.2.2 indicates an intention to import the criminal concept of fraud. So all the references and inference of the claimant as to the criminal nature of fraud go to no issue. Relief 1 therefore fails. It is also apropos to note that the law is settled that in a master/servant relationship, there is a general power reposed in the employer to dismiss an employee for misconduct of any kind. See the case of AZENABOR Vs. BAYERO UNIVERISTY, KANO (2009) 17 NWLR (PT. 1169) 96 CA. It is settled law by several authorities that master/employer reserves the right to hire and fire a servant at any time. See the case of ALI Vs. NNA (2005) ALL FWLR (PT. 272) 265 @ 293 -94; UBA Vs. TOYINBO (2008) LPELR 5056 CA. It is, however, also the law that once an employer gives a reason for terminating or dismissing an employee, the burden lies with him to justify the said reason. See ANGEL SHIPPING & DYEING LTD V. AJAH [2000] 13 NWLR (PT. 685) 551 CA The claimants raised lot of dust over the issue with regard to the requirement that the defendants justify the dismissal, the actual position of law has been well stated in the case of OLORUNTOBA-OJU V. ABDUL-RAHEEM (2009) 13 NWLR (PT. 1157) 83 where it was held that “In order to justify the dismissal or termination of appointment of an employee, the employer must be in a position to prove to the court’s satisfaction: a) That the allegation was disclosed to the employee; b) That he was given a fair hearing; c) That the employer believed that the employee committed the offence after hearing witnesses. Bamgboye V. University of Ilorin (1999) 10 NWLR (pt. 622) 290 referred to.] (p. 145, paras. A-B) In the instant case the allegation was disclosed to the claimant, as in Exhibit C9 the claimant was responding to Exhibit C10 the query dated 30th September 2013 Exhibit C10 Dated: 30/9/13 From: Management To: Ibe Obo Ibe (Casher) Subject : DEBIT OF N500,000 INTO UNICAL STAFF MULTIPURPOSE COOPERATIVE SOCIETY ACCOUNT NO 0110304306 It is observed that on 28th January, 2013 and as a cashier, you debited the above stated account with the sum of N500,000 (five hundred thousand naira only) with cheque no. 35254 in favour of Musa Dan. The above issue came up for a discussion at the regular Management’s meeting today. Management decided that an explanation be obtained from you on what transpired. Accordingly and before closed of business today (30th September, 2013) you are required to explain in writing your role(s) in the said transaction. Meanwhile, please sign as having received this memo on the second copy attached. Elder Asian Umo Offon Noah Relief MD/CEO Admin, Officer The claimant wrote Exhibit C 9 a hand written letter, on the same date, 30th September 2013, wherein he gave the explanation as to being unable to pay Dan Musa’s cheque of N500, 000.00 due to the non-availability of cash and his erroneously debiting of the account, and discovering his fault he credited back the account the very next day. I find that the allegation was duly disclosed to the claimant. The next question is whether the claimants was given fair hearing, the claimant have raised hell and high water over the issue that they were not accorded their rights under Section 36(1) of the 1999 Constitution. By U.B.A. PLC v. ORANUBA Supra “An employee cannot be removed or dismissed for a specific misconduct in the absence of adequate opportunity afforded him to justify or explain same. Before an employer can dispense with the services of his employee, all he needs to do is to afford the employee the opportunity of being heard before exercising his power of summary dismissal, even where the allegation for which the employee is being dismissed involves accusation of crime”. [YUSUF v. U.B.N. (1996) 6 NWLR (PT. 457) referred to.] (Pp. 41-42, PARAS. H-B) It is settled that an employee cannot be removed or dismissed for a specific misconduct in the absence of adequate opportunity afforded to him to justify or explain same - see YUSUF V. UNION BANK SUPRA 632, where Wali, JSC stated - " - - Before on Employer can dispense with the services of his Employee under the common law, all he needs to do is to afford the Employee an opportunity of being heard before exercising his power of summary dismissal, even where the allegation for which the Employee is being dismissed involves accusation of crime". See also NIGERIAN OIL MILLS V. DAURA (1996) 8 NWLR (PT.465) 601, and ARINZE V. FIRST BANK (NIG.) LTD. (2000) 1 NWLR (PT. 639) 78. And in law following SOGBESAN v. UNIVERSITY OF LAGOS & ORS. (2014) 47 NLLR (PT. 153) 346 NIC @ 351 “Where an employer accuses an employee of misconduct by way of a query and allows the employee to answer the query, and the employee answers the query before the employer takes a decision on the employment of the employee, that satisfies the requirement of fair hearing because he answered the queries before he was dismissed from his employment. Once the employer does not find the answers of the employee satisfactory, he can dismiss the employee”. IMONIKHE v. UNITY BANK PLC (2011) 12 NWLR 9PT. 1262) 624 @ 640 referred to.] Where it was held that “when an employer accuses an employee of misconduct by way of a query and allows the employee to answer the query, and the employee answers the query before the employer takes a decision on the employment of the employee, that satisfies the requirements of fair hearing because he answered the respondent’s queries before he was dismissed from his employment”;- IMONIKHE v. UNITY BANK PLC Supra @648 In fact “an employee whose employment is terminated on ground of misconduct after being given an opportunity and has replied to a written query regarding the issue forming the basis of his termination cannot complain of lack of fair hearing. GUKAS v. JOS INTERNATIONAL BREWRIES LTD [1991] 6 NWLR (Pt. 199) 614. This court in U.B.A. PLC v. ORANUBA supra went on to say that “Fair hearing simply means “Hear the other side”. IMONIKHE v. UNNITY BANK PLC (2011) 12 NWLR (PT. 1262) 624 @ 640 referred to. Fair hearing in labour issues simply means opportunity. I find and hold and in the instant case the claimant was given ample opportunity, hence I find that the claimant was given fair hearing. From exhibit D11 being the internal Memo of 25th February detailing the investigation of the N500, 000,00 debit incident by the claimant, and narrated the findings of the internal audit which revealed that the cheque purported to be presented by one Dan Musa to be drawn on the account of Unical Staff Multi-purpose Cooperative Society (MPC) was actually a cheque belonging to another company entirely and that although the claimants work when checked on the day of the incident did not reveal any cash shortage of N500, 000.00 there was a debit transaction against Unical staff MPCS not supported by any bank instrument. The cash analysis also revealed cash shortage of N500, 000.00 which meant that N500, 000.00 actually left the bank vault on the 28th January, 2013. The Internal Audit also noted that the claimant neither reported any cash shortage nor verbally complained of any challenge to his superior officers or his colleagues. The investigation report continued that in 30th January 2013 the claimant filled out a credit slip for N500, 000.00 and he signed and posted the credit reversal and credited the account all by himself (single handedly) and the cash analysis of that day revealed that N500, 000.00 was returned to the vault. From the investigation report I find that the defendants believed the witnesses and the evidence that the claimant committed the offence. I find that all the requirements of the case of OLORUNTOBA-OJU V. ABDUL-RAHEEM Supra have been met. What that means is that the defendant have effectively justified their actions in dismissing the claimant under the law, I so find and hold. I resolve this issue against the claimant. With regard to issue 2, whether failure by the defendant to prosecute the claimant in the circumstances of this case and the violation of the rules of natural justice does not make claimant’s dismissal wrongful “A similar argument, to the effect that in a dismissal based on an allegation of crime, the allegation must first of all be proved before the dismissal can stand or that it is trite that conduct amounting to crime must first of all be a matter for the Court of criminal tribunal before disciplinary issues or action can be raised, was advanced in IKE EDWARD CHUKWUEMEKA v. ENTERPRISE BANK unreported Suit No. NICN/LA/181/2011, the judgment of which was delivered on May 13, 2014. In reviewing the authorities, this is what this Court said at pages 16 – 17 – The claimant was invariably relying on the old dispensation as evinced by case law authorities such as BISHI v. THE JUDICIAL SERVICE COMMISSION (1991) 6 NWLR (PT. 197) 331 CA, which were to the effect that where a criminal offence is alleged against an employee, he must first be prosecuted for the offence before disciplinary measures if necessary are taken against him. The new dispensation is, however, exemplified by cases such as ARINZE v. FIRST BANK (NIG.) LTD. (2000) 1 NWLR 9PT. 639) 78 CA, which laid down that it is not an immutable principle that where the act of misconduct by an employee also amounts to a criminal offence, the employee must first be prosecuted before the employer can exercise his power of summary dismissal of the employee. The Supreme Court in same case, ARINZE v. FBN LTD. Supra affirmed this principle when it held that an employer can dismiss an employee where the accusation against such employee is of gross misconduct involving dishonesty bordering on criminality; and in such a case, it is not required under Sec. 36 (1) of the Constitution that an employee must first be tried in a court of law. That it is therefore, erroneous to contend that once crime is detected, the employer cannot discipline the employee unless he is tried and convicted first. The Supreme Court went on 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; and to satisfy the rule of natural justice and fair hearing, a person likely to be affected directly by the disciplinary proceedings must first be given adequate notice of the allegation against him to afford him the opportunity for representation in his own defence. The Court of Appeal in ATA POLY v. MAINA (2005) 10 NWLR (PT. 934) 487 CA reiterated and applied this principle. Also see UBA VS. MRS DOREEN NKOLIKA ORANUBA (2013) LPELR-20692(CA) where the Court of Appeal held -"It seems to me from the perspective of the decisions on the powers of an Employer to dismiss summarily his Employee for gross misconduct that the propelling keystone is the preservation of the constitutional right of fair hearing. Whether the Employee was first prosecuted for the criminal offence arising from his acts of misconduct pales into insignificance once the Court is satisfied that the Employee was given a fair hearing in the sense of being confronted with the allegation against him and afforded the chance to make representation in his own defence. In summary, contrary to the argument of learned counsel for the Appellant, the principle that where the act of misconduct by on Employee also amounts to a criminal offence, the criminal offence must first be prosecuted before the Employee can exercise his power of summary dismissal of the Employee is not intended as law of the Medes and Persians. It is not an immutable principle". (Italics mine)." Per AUGIE, J.C.A. (Pp. 51-52, paras. C-D) From the forgoing authorities I find that there is no legal requirement for the defendant to first of all prosecute the claimant before effecting administrative discipline upon this and according to their terms and conditions of employment. I resolve this issue against the claimant. With regard to issue 3, whether the claimant is not entitled to damages for negligence and all other reliefs sought in this suit as per his Amended Statement of Facts. Negligence has been described By Muktat JSC in the case of M.O. KANU SONS AND COMPANY LIMITED Vs. FIRST BANK OF NIGERIA PLC 5 SC (Pt III) 80, relying on the Learned Authors in their book Clerk and Lindsel on Tort 14th Edition, as “the tort traditionally described as damage, which is not too remote, caused by a duty of care owed by the defendant to the plaintiff. The case went on to list the six ingredients of negligence Which were 1) duty of care, 2) foreseeability, 3) Proof of defendants carelessness, 4) a causal connection between carelessness and the damage, 5) extent of the damage attributable to the defendant and 6) the monetary estimate of that extent of damage”. The Claimant had claimed negligence on the part of the defendant for refusal to certify his retirement form for 25% of his retirement savings as requested by Trust Fund Pensions Plc. The claimant also argued that Exhibits C14, the claimant’s Solicitors letter requested the defendants to fill in and endorse a copy of the claimants re certification form dated 28th October 2014, C15 the loan agreement dated 2nd October 2014 and C15 the Notice to quit dated25th February 2015. Regarding the re certification form the defendants in their statement of defence stated that they had responded to Trust Fund Pensions Inc. on the 7th May 2015. The claimant has not present to the court the damage or injury he has suffered as a result of the failure of the claimant to notify the trust Fund Pensions Inc. until the 7th of May neither have they shown the court the provisions of the Pension Act that prescribes a penalty for an employer who delays in recertifying the Re certification Form. In addition the claimant has pleaded that the defendants non- cooperation prevented him from receiving 25% of his pension contribution but failed to present to the court any evidence of this entitlement, no evidence of pension contribution of the trust fund agreement, be that as it may there is nothing before the court as to establish negligence as the claimants have not proved any of the ingredients of negligence in respect of this or the other two claims of loan and quit notice. The court was not told how these to matter come within the defendant’s purview as a former employer. There must be at least a causal connection between the injury of incident to the duty the defendants owes the claimant. Does the defendant owe the duty of care to ensure he has a car, or that his rent is paid I do not think so and more importantly the claimant has not shown the court the connection between these situations and the defendants responsibility as a former employer, Negligence is a distinct tort which must be proved by facts and evidence which the claimant has not done in this case. Relief: 7 therefore fails. As regards the other reliefs having found that the claimant was not wrongly dismissed and the basic principle of master and servant relationship is that an employer can summarily dismiss the employment of his servant for gross misconduct. See ALHAJI EKUNOLA Vs. C.B.N. & ANOR. (2013) LPELR 2039 SC. For avoidance of doubt I find that the defendant has substantiated the reason adduced for dismissing the claimant. Consequently, I hold that the dismissal of the claimant was not wrongful. Having held that the dismissal of the claimant was not wrongful, the claimant is not entitled to any relief claimed in this suit. See the case of SUIT NO. NICN/LA/225/2012 VIVIAN IJEOMA OKAFOR Vs. ECOBANK NIGERIA PLC delivered on June 6, 2014. I find that the claimant’s suit lacks merit, therefore fails and it is hereby dismissed. I make no order as to cost. This is the court’s judgment and it is hereby entered. ……………………………… Hon. Justice E. N. Agbakoba Presiding Judge Calabar Division