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REPRESENTATION Adetunji Oyeyipo, SAN, with O. O. Ogunleye, Fola Alade and Miss J. Oyeyipo, for the claimant. A. B. Kasunmu, with Miss Damilola Ajeyalemi and Miss T. A. Adesanmi, for the defendant. JUDGMENT On 27th September 2012, the claimant took up a complaint against the defendant. By the complaint and accompanying statement of facts, the claimant is praying for – 1. A declaration that his dismissal from the services of the defendant by letter dated 15th November 2010 is unlawful, wrongfully and was done in breach of his fundamental human rights. 2. An order reinstating the claimant to his position as Deputy General Manager in the defendant’s company with all the attendant remuneration and perquisites of office. 3. Arrears of his full remunerations from October 25th 2010 till judgment date with interest thereon at the rate of 15% per annum. 4. The sum of N8,032,600.00 being loss sustained as a result of the forced sale of the claimant’s property at No. 24B, Thistle Road, Northern Foreshore Estate, Chevron Drive, Lekki, Lagos. 5. BY WAY OF AN ALTERNATIVE TO 2 ABOVE: i. The claim of N6,000,000.00 being Gratuity Benefit of the claimant; ii. Damages in the sum of N85,000,000.00 for the loss of employment opportunities to work in other financial institutions due to the wrongful dismissal of the claimant by the defendant’s company; iii. Interest on the total amount awarded in favour of the claimant at the rate of 15% per annum from the date of judgment till the entire judgment debt is duly liquidated. 6. Cost of this action. Also as part of the originating processes are the list of documents and copies of the documents, later admitted and marked as Exhibits C1 to C20(a). In reaction, the defendant entered formal appearance and then filed its statement of defence, list of witneses(es), witness statement on oath of the witnesses, list of documents and copies of the documents, admitted and marked as Exhibits D1 to D8. It was in response that the claimant filed a reply to the statement of defence, a list of witnesses and the witness statement on oath of the claimant. At the trial, the claimant testified on his own behalf as CW, while the defendant called two witnesses – Mrs. Tosin Oluwatimilehin, a Banker and Head, Investment and Mortgages, of the defendant, who testified as DW1 and Adenike Moradeke Folarin, a Banker and Head of Finance of the defendant, who testified as DW2. At the close of trial, parties were asked to file and serve their respective written addresses starting with the defendant in accordance with Order 19 Rule 13 of the National Industrial Court (NIC) Rules 2007. This they did. The defendant’s final written address is dated 22nd July 2014 but filed on 7th August 2014, while the claimant’s is dated and filed on 3rd March 2015. The defendant’s rely on points of law is dated 27th January 2016 but filed on 28th January 2016. THE CASE OF THE CLAIMANT This is a case of wrongful dismissal from employment. The claimant was until his summary dismissal the Deputy General Manager of the defendant company. To the claimant, on 20th October 2010, he received a memo signed by one Tosin Oluwatimilehin, Head Corporate Services of the defendant wherein he was asked to explain his role in an alleged false sale of two (2) units of houses in the Pine Groove Estate to one Gaffot Engineering & Construction Limited. The memo alleged that one Chucks Adigwe, a subordinate staff of the claimant, had implicated him in the said transaction. By his own memo dated 20th October 2012 the claimant responded and denied making false sales to anybody. He further explained that some buyers who had earlier made deposit payments for some of the houses put up for sale by the defendant later lost interest due to the downward trend in the price of properties and applied for refund of the deposit paid. The said Gaffort Engineering & Construction Limited was one of such buyers. On the same 20th October 2010, the claimant was summoned to appear before a “Disciplinary Committee” of the defendant to answer some allegations, the details of which were not made clear to him. He appeared before the panel and was questioned on several diverse issues which he attempted to answer within the limits of the time available to him. The claimant went on that by a memo dated 22nd October 2010, he was placed on suspension without pay effective from 25th October 2010 pending investigation being carried out. Subsequently he was by letter dated 4th November 2010 invited to appear before the defendant’s Board Finance & General Purpose Committee which was said to have being constituted into a panel to look into the allegation of fictitious sales of properties and manipulation of financials made against him. Apparently, from the turn of events, this Panel was constituted into a Disciplinary Committee of the Board of Directors of the defendant company. He was not confronted with the Report of findings of the earlier “Disciplinary Committee” which formed the basis of the hearing by the Board Committee. He was merely informed that the panel would hear him on Monday November 8, 2010. The claimant was not given details of the allegations neither was he given ample opportunity to prepare for his defence, as he was given the letter of invitation on the same day, 8th November, 2010. That on the said 8th November 2010, he appeared before the Board Committee armed with a written submission dated 8th November 2010 wherein he attempted to react to the blanket allegations made against him by the defendant. At the sitting of the defendant’s Board Finance & General Purpose Committee, the claimant was asked several questions which were unrelated to the allegations of sales of fictitious properties and manipulations of financial reports. None of his accusers was made to confront him, neither was he given any details of the case against him. By a letter dated November 15, 2010 he was summarily dismissed for certain unmentioned actions of his which the Board found to be “unethical, unprofessional and acts of misconduct”. He was further directed to settle his net obligation to the defendant which was calculated by the same defendant to be N29,825,929.48 (Twenty-Nine Million, Eight Hundred and Twenty-Five Thousand, Nine Hundred and Twenty-Nine Naira, Forty-Eight Kobo) within 30 days. To the claimant, all attempts to get the defendant to review its decision were rejected. It is the case of the claimant that his dismissal was not in accordance with his terms of employment as contained in his letter of employment and the defendant’s employee handbook. The claimant said he was not given a fair hearing and he believed that the proceedings of the Board Finance & General Purpose Committee was a farce and charade as the whole disciplinary proceedings was predetermined. The claimant denied misconducting himself in anyway and that if at all he did misconduct himself, it does not warrant summary dismissal by his terms of engagement. As a result of pressure put on the claimant to settle his indebtedness, he was forced to sell his property below the cost of purchase and the improvement he had made on the property. The claimant, therefore, claimed as per his statement of claim. THE CASE OF THE DEFENDANT The defendant denied the claimant’s allegations and averred that he was given a fair hearing; he had ample time and opportunity to defend himself; and he was dismissed for unethical and unprofessional act of misconduct. Briefly put, the defendant’s case is that it received a letter of complaint from Gaffot Engineering and Construction Limited alleging that Mr. Chucks Adigwu approached them (Gaffot) to pay in the sum of N10 million for the purchase of 2 units of houses in Pinegrove Estate. Based on the allegation made by Gaffot Engineering and Construction Limited a query was issued to Chucks Adigwu who stated that all he did in relation with Gaffot’s transaction was in accordance with the claimant’s instruction. The defendant then set up a disciplinary panel to investigate the claimant and Chucks Adigwu and discovered that the financial records of the company were manipulated to record false profit. It is thus the defendant’s case that Gaffort Engineering and other contractors of the defendant were asked to make deposits on properties sold by the defendant in order to make the income record reflect a false profit for the accounting year and the money deposited were later returned to the depositors. The defendant investigated the claimant on the allegation leveled against him and found him guilty and thereafter dismissed him from his employment. THE DEFENDANT’S SUBMISSION The defendant framed three issues for the determination of the Court, namely – 1. Whether the claimant was unlawfully and wrongfully dismissed and his fundamental human rights breached. 2. Whether the claimant is entitled to reinstatement to his position as Deputy General Manager with all attendant remuneration and perquisites of office. 3. Whether the claimant is entitled to the sum of N8,032,600.00 as loss sustained as a result of a forced sale of his property. Regarding issue 1, the defendant submitted that it is trite law that once it is established that a relationship of master and servant exists between the parties then it carries with it all its attendant consequences, one of which is the right of the master to terminate the service of his servant according to the terms of the contract of employment, referring to Ningi v. FBN Plc [1996] 3 NWLR (Pt. 435) 220. That except in employment governed by statute wherein the procedure of employment and discipline of an employee are clearly spelt out, any other employment outside the statute is governed by the terms under which the parties agreed to be master and servant. In other words, in cases governed only by agreement of parties and not by statute, removal by way of termination or dismissal will be in the form agreed to by the parties in the agreement binding on them. That in an action for wrongful dismissal as in the instant case where the employer contends that the employee was removed or dismissed for misconduct the employer must justify same. Since it is the claimant’s case that his dismissal was wrongful and unlawful and in breach of his fundamental human rights, the burden is on him to plead and prove the conditions of service regulating the contract of service and in what way the condition of employment restricts the defendant’s right to dismiss him, citing Amodu v. Amode [1990] 5 NWLR (Pt. 150) 370. The defendant continued that it is not in dispute that the claimant was employed by the defendant and that his employment is regulated by his letter of employment (Exhibit C1) and Exhibit C8 (the employment handbook) and that the provision of clause 11.4 of the employment handbook states that an employee may be summarily dismissed for certain acts of gross misconduct and negligence such as the acts listed in sub-paragraphs A to K and that no notice shall be given in the case of summary dismissal. That the case against the claimant is that he was making false sale and falsifying the financial record of the defendant to reflect a profit. The trigger into the investigation of the claimant was the letter of Gaffot Engineering and Construction Limited (Exhibit D2) and the subsequent query of one Chuks Adigwu, a staff of the defendant, who under investigation stated that all he did in relation with the Gaffot transaction was at the instance of the claimant. DW1 in her evidence-in-chief stated that the claimant manipulated the book of the company to record a false profit. That the allegation against the claimant on false sales and manipulation of the records of the company is contained in paragraphs 8 to 13 of the statement of defence. This evidence was corroborated by DW2 who in her evidence confirmed that the claimant was investigated for the false sale recorded and manipulation of the financial records of the company and tendered Exhibit D8, a letter to Akintola Williams Delloite to adjust the financial record of the year end 31st December 2009 to reflect the true financial position of the defendant after the discovery of the anomalies and entries. That the investigation of the claimant commenced at the management level after which he was invited to appear before the General Purpose Committee of the defendant. The claimant also submitted a written response (Exhibit C10) wherein he admitted thus – When we were about closing the books for the year and payment for the 23 units proposal was still not forthcoming, we insisted that except a commitment was made we would not reserve the units for the company. So a postdated cheque for 200 million deposit was issued with a promise to make payment subsequently. The transaction was treated as credit sale and the expected sale proceed posted to account receivable as usual. That he went further to state that when the payment was not forthcoming, all entries relating to the transaction were reversed before the account for the year 2009 was finalized. That in the same letter the claimant also admitted the down payment of N5 Million and N10 million from contractors or relations to the contractors on the project which was booked as sales and the money later refunded. The report of the Ad-Hoc Disciplinary Committee (Exhibit D7) dated 10th November 2010 shows that the claimant was invited to appear before the committee to explain his role in the false sale of properties and the panel concluded that his actions amounted to irregular practice. To the defendant, the allegation of false sale of properties and manipulation of the financial record of the company to record profit amounts to a gross misconduct for which the claimant can be summarily dismissed. That the offence of misconduct enumerated in clause 11.4 of the staff handbook is not exhaustive and that gross misconduct is a conduct that is of a grave and weighty character capable of undermining the relationship of confidence, which should exist between the employee and his employer. Also, that working against the interest of the employer amount to gross misconduct, which entitles the employer to summarily dismiss the employee without notice and wages, citing Yusuf v. UBN [1996] 6 NWLR (Pt. 457) – the page is not supplied. The defendant continued that the claimant contended that he did not receive fair hearing on the misconduct alleged before his dismissal and that he was not queried for some of the allegation investigated for and summarily dismissed for. First, it is the defendant’s submission that this is purely a case of ordinary master and servant, therefore what makes the dismissal wrongful is not the notion of the breach of the rules of natural justice or fair hearing. It is the non-compliance with the terms and conditions of the contract of employment that makes the dismissal wrongful, referring to Olanrewaju v. Afribank Nigeria Plc [2001] 13 NWLR (Pt. 731) 691 at 705 SC, Adams v. LSDPC [2000] 5 NWLR (Pt. 656) 291 at 320, Osakwe v. Nigerian Paper Mills Ltd [1998] 10 NWLR (Pt. 568) at 12, Donier Aviation Nig Acep Limited v. Capt. Tunde Oluwadare [2007] 7 NWLR (Pt. 1033) 336 at 354, 359 and 560 and Longe v. FBN Plc [2005] 3 NLWR (Pt. 967) 228 at 268. It is the defendant’s submission that this Court cannot lawfully substitute its own decision for that of the Management Panel and General Purpose Committee of the defendant who investigated the claimant, citing Military Governor of Imo State v. Nwauwa [1997] 2 NWLR (Pt. 490) 675 at 697. That the jurisdiction being exercised by the Court is not an appellate jurisdiction but rather a supervisory one, referring to Donier Aviation Nig Acep Limited v. Capt. Tunde Oluwadare (supra). That it is also fallacious for the claimant to argue that he was not given fair hearing. That even if the rule of natural justice and fair hearing applies in this case there is sufficient compliance since there is ample evidence that the claimant was given the opportunity and time to be heard and defend himself. It is the failure to give the claimant any opportunity to defend himself that will amount to a breach of fair hearing and not the length of time the claimant had to respond to the allegation made against him. The terms of the contract of employment in any case do not stipulate a time for disciplining an employee. The defendant then referred to Buba v. Nigerian Civil Aviation Training Centre (citation not supplied) and Board of Education v. Rice [1911] AC 179 at 182. The defendant went on that the claimant had the opportunity to defend the allegations made against him first before the management panel and then before the Board Finance and General Purpose Committee. That his written response (Exhibit C10) is also proof that he was given the opportunity to defend all the allegations made against him including those not contained in the query. That the report of the disciplinary committee (Exhibit D5) at the end of its investigation concluded that the conduct of the claimant in the sale of property to Gafort violates the company’s policy that a customer must make a deposit of not less than 30% of the total purchase before income is recorded but also presents false financial Position of the organisation for the year 2009. That it was specifically noted in the report (Exhibit D5) that 10 months after the payment for this purchase was yet to be debited to the customer’s account and credited into the sales proceeds account, referring also to the finding and conclusion of the Board Finance and General Purpose Committee as per Exhibit D7. To the defendant, the mere fact that the defendant investigated matters not arising from the query will not amount to a denial of fair hearing since “the defendant” had the opportunity to defend those allegations and did in fact respond to the allegations not specifically raised in his query. That the most crucial point for this Court to consider is whether “the defendant” was aware of the allegations made against him and if he was allowed to defend himself on those allegations. That the investigation conducted into the sale of properties at Valley View Estate by the management panel of the defendant concluded that there was a pattern of false recording by the claimant. The report (Exhibit D5) shows that, although the claimant claimed there was a sale of 23 units of houses, the branch manager of the Abuja branch of the defendant (Lanre Afolabi) said there was no sale of 23 units of houses. The investigating panel also found that on a purported sale of 2 units at Pine Grove Estate to Interaf at a total sale of N180 million, the claimant only recorded a deposit of N5 million representing 2.77% of the total purchase cost but an income of N25 million was posted into the company’s profit. The defendant continued that the claimant also had a second opportunity to defend himself before the Board and Finance and General Purpose Committee of the defendant and even submitted a written response to the allegation of false sale in respect of the 23 units at Valley View Estate and the 2 units at Pine grove estate to Interaf. That the conclusion of the Board Finance and General Purpose Committee (Exhibit D7) was that the sale of properties to Gafort Engineering, Interaf and Telios were not done in good faith, the sale of 23 units of Valley View Abuja were non-existent since there was no source documents, yet entries of income were made and the actions of the claimant was against the policy of the company. That it is trite that a person accused of an offence based on a petition or complaint to the police can be charged to court on other offences not contained in the petition or complaint, if the offences not originally contained in the petition are discovered in the course of investigation. That in an action for wrongful termination of appointment, the claimant must plead and prove certain material facts such as – (a) that he is employed by the defendant. (b) the terms and conditions of his appointment including duration and termination. (c) Who can appoint and remove him. (d) The circumstances under which his appointment can be terminated. (e) That his appointment can only be terminated by a person or authority other than the defendant. That in the instant case the facts relating to e) and d) were not pleaded and established. The relevant elements of the terms of contract allegedly breached were not pleaded and proved, referring to Adams v. LSDPC [2000] 5 NWLR (Pt. 656) The defendant then urged the Court to hold that the claimant’s dismissal was not wrongful and was not done in breach of his right to fair hearing. That the claimant’s act of false sale and recording of profit amounts to misconduct and the defendant is entitled to dismiss the claimant without notice and wages in accordance with clause 11.4 of the employment handbook, referring to Adams v. LSDPC and Ajay v. Texaco Limited [1987] 3 NWLR (Pt. 62) – the page is not supplied. As for issue 2 i.e. whether the claimant is entitled to reinstatement to his position as Deputy General Manager with all attendant remuneration and perquisites of office, the defendant submitted that except in employment governed by statute wherein the procedure of employment and discipline is clearly spelt out, any other employment outside the statue is governed by the terms under which the parties agree to be master and servant. That a master is entitled to dismiss his servant from his employment for good or bad reasons or for no reason at all. That where the master purports to dismiss a servant even though not in accordance with the laid down procedure in the contract, the servant cannot treat the contract as still subsisting but must proceed as if the he has been wrongfully dismissed. To the defendant, specific performance or reinstatement of the contract of service will not be ordered where the master brings the master-servant relationship to an end. To do so, that is to order a reinstatement, will be tantamount to forcing a willing employee on an unwilling employer, referring to Onwunemu v. ACB [1997] 12 NWLR (Pt. 531) 150 at 158 and Osakwe v. Nigeria Paper Mill Limited [1998] 10 NWLR (Pt. 568) 1. That the claimant cannot ask for a reinstatement as his employment is not protected by statue, citing NSITFBM v. Adebiyi [1999] 13 NWLR (Pt. 633) 16 at 28. The defendant then submitted that the claimant who was dismissed for a gross misconduct in accordance with clause 11.4 of the employment handbook is not entitled to his wages, benefits gratuity, arrears of salary and even damages. That if the Court finds that the claimant was dismissed for misconduct his claim for reinstatement, gratuity, arrears of salary and damages must fail. On issue 3 i.e. whether the claimant is entitled to the sum of N8,032,600.00 as loss sustained as a result of a forced sale of his property, the defendant submitted that it did not force the claimant to sell his property at 24B Thistle Road, Northern Foreshore Estate Chevron Drive Lekki, Lagos. That there is no shred of evidence before this Court to support the claimant’s claim that the defendant forced him to sell his property. On the contrary that “Exhibit C”, paragraph 2 of the letter written by the claimant to the Managing Director of the defendant reads as follows – Kindly dispose of my first bank Plc shares in your custody to liquidate the staff loan used to purchase them. I have also placed the property held as collateral for my staff mortgage loan in the market and request that you assist to market it as well. The defendant then denied that they forced the claimant to sell his property and gave evidence that the claimant voluntarily offered his property for sale, urging the Court to resolve issue 3 in the defendant’s favour. In conclusion, the defendant urged the Court to dismiss the claimant’s action with substantial cost. THE CLAIMANT’S SUBMISSION The claimant in reaction framed two issues for the determination of the Court, namely – a) Whether the entire disciplinary procedure leading to the summary dismissal of the claimant was not vitiated by the breach of the claimant’s fundamental human right and the decision contrary to the conditions of employment. b) Is the claimant entitled to the reliefs he seeks? Regarding issue a), the claimant had alleged in his written statement on oath dated 21st June 2013 that his dismissal was not in accordance with his terms of employment as contained in his letter of employment and the defendant’s handbook and that it was in violation of his right to fair hearing. The claimant also said he was not given a fair hearing by the Finance & General Purpose Committee of the defendant’s Board. That the findings of the Disciplinary Committee which investigated the claimant were not made known to him such that he was not fully aware of the case he was to meet before the Board Finance & General Purpose Committee. He alleged that the whole disciplinary procedure was a farce and a charade and that the outcome of the entire proceedings was predetermined. He further contended that if at all he misconducted himself (which is not conceded) the misconduct was not such as would warrant his summary dismissal from the service of the defendant. That “if these allegations are true, then the claimant deserves to have a decision nullifying the summary dismissal”. To the claimant, the relationship between the claimant and the defendant is governed by Exhibit C8 which is the staff handbook or the employee handbook. That paragraph 11 of Exhibit C8 spells out the procedure to be adopted for disciplinary proceedings. Under paragraph 11 an employee against whom an allegation of misconduct had been made is expected to be given a query. Upon answering the query the defendant may carry out further investigation. At the end of its investigation the matter may be referred to the disciplinary committee which committee may decide the punishment to be meted out on the employee if found guilty. Paragraph l1(b) provides as follows – Defence at the Disciplinary Committee: Any employee whose case is being tried for the first time should be given an opportunity to appear before the disciplinary committee. Thus that by the conditions of service of the claimant with the defendant, he is required to appear before the disciplinary committee of the defendant before any disciplinary action can be taken against him. It is the claimant’s submission that the right to appear before a disciplinary committee carries along with it the right to fair hearing before that committee because his appearance before the disciplinary committee is not a mere formality, citing NEPA v. Ango [2001] 15 NWLR (Pt. 737) 627 at 654 and Baba v. NCATC [1991] 5 NWLR (Pt. 192) 388. That the right to an opportunity to appear before the Disciplinary Committee will be hollow or meaningless if it does not carry along with it the right to a fair hearing before the Disciplinary Committee. That the evidence before the Court convincingly shows that the claimant never had a fair trial. In fact, that he never had the chance to get a fair trial. The whole disciplinary proceedings started with Exhibit C5 which was a memo dated October 20, 2010 addressed to Adebayo Boye, the claimant, and signed by Tosin Oluwatimilehin. Exhibit C5 alleged as follows – We are in receipt of a letter dated October 18, 2010 from Gaffot Engineering & Construction Ltd signed by Engr. Abolade Idowu. The company states that Mr. Chucks Adigwe of the Project Department approached them to pay in the sum of N10 million for purchase of 2 units of houses in Pinegroove Estate (Units A5 & A6) which were not true sales but a false representation and promised to return the deposit once income is recorded on the sales. Consequently, a query was issued to Chucks Adigwe for such unprofessional conduct. In his response, Chucks stated that he did all of the above in accordance with instructions from your goodself. In view of the above please explain in writing your role in the above. That neither the letter allegedly written by Gaffot Engineering & Construction Limited and signed by Engr. Abolade Idowu nor the response of Chuks Adigwu to the query allegedly written to him was made available to the claimant. That these two documents constituted the case/evidence against the claimant. In his response, Exhibit C6, the claimant explained that due to intense pressure to sell the stock of properties owned by the defendant company staff were requested to intensify efforts in selling. Gaffot Engineering & Construction Limited was one of the prospects approached by Chucks Adigwe to buy properties at Pine groove Estate. The claimant said he was not aware of any arrangement to make false sales to anybody. That throughout the proceedings leading to his summary dismissal, the claimant was not given the letter of October 18, 2010 allegedly written by Gaffot Engineering & Construction Limited. In its statement of defence, the defendant referred to the said letter of 18th October 2010 but it was not frontloaded neither was it tendered before this Court. However, a letter dated 13th October 2010 written by Abolade Idowu of Gaffot Engineering was tendered and admitted as Exhibit D2. In that letter Abolade Idowu did not allege any false sale. On the other hand, the opening sentence of the letter reads “1 refer to my purchase of unit A3 at the Pine groove Estate, property at 24/25 New Market Road, Oniru Private Estate, Victoria Island, Lagos”. He then protested the agency and legal fees charged on the transaction whereupon it was reviewed and he paid for those charges. Later Engr. Idowu said he realised that the collection of agency and legal fees from him by Mr. Chucks Adigwe was a scam and he, therefore, requested a refund of the said charges which he referred to as “illegal collection of funds”. In closing his letter Engr. Idowu said: “1 hereby authorise you to channel the refunds to payment of my balance outstanding on the purchased unit”. To the claimant, this exhibit shows clearly and in the most absolute terms that Abolade never complained of any false sales. If anything he regarded and treated the transaction as a genuine sale which he was prepared to continue. Why then did the defendant deceive the claimant as to Abolade’s complaint? The answer is simple. The defendant had apparently made up its mind (for whatever reason) to disgrace the claimant out of office, hence it had set up a contrived case with a predetermined outcome. This conclusion, which in the claimant’s view cannot be faulted, demonstrates most vividly that the entire procedure was patently unfair. In the circumstances, the defendant cannot be said to have acted impartially. That this act on its own alone is sufficient to vitiate the entire proceedings. That upon receiving the claimant’s reply to the query issued, the defendant (in continuation of the charade) invited him on the same day to appear before a panel of investigation or a Management Disciplinary Committee. The Committee sat on the same 20th October 2010 and questioned the claimant on the following transactions – a) Purchase of two (2) units property at Pinegroove Estate, Oniru, Lagos by Messrs. Gaffot Engineering & Construction Limited. b) Sale of two (2) units at Pinegroove Estate to Messrs. Interaf. c) Sale of four (4) units at Reinessaince Port Harcourt to Felios/Mr. Mike Adesanmi. d) Sale of 23 units at Valley View Estate, Abuja. The claimant was also accused of manipulating the financials of the defendant company for the year 2009. Notwithstanding that fresh allegations were raised and the scope of investigation and had been expanded, the claimant explained that he did not do any wrong. Again predictably, that in pursuit of its sinister plot, the Management Committee recommended to the Board of the defendant that the claimant be dismissed. The claimant had earlier noted that the alleged letter of complaint said to have been written by Engr. Abolade of Gaffot Engineering & Construction Limited dated 18th October 2010 was neither shown to him nor even produced in Court. However, in its report (“Exhibit D”) the Management Committee traced the genesis of the entire case to this same mysterious document. That in furtherance of its deceit and determination to get rid of the claimant at all cost, the Management Committee of the defendant company in that report reiterated the false claim when it said in the paragraph With the subheading ‘BACKGROUND’: “Engr. Idowu in his letter purported that these sales were fictitious sales but he was promised by Mr. Chucks Adigwe that once income is recorded on this sales the deposit would be returned to the company”. That the defendant had decided the claimant’s fate even before it commenced the disciplinary proceedings. The entire case was, therefore, based on falsehood and deceit. Little wonder then that the Management Committee found, as it was designed to, that the claimant had engaged in fictitious sales and this was part of the reason given for recommending his dismissal to the Board of the defendant company, referring to Exhibit D6. The claimant went on that by Exhibit C9 dated November 4, 2010 but delivered to him on the 8th of November 2010 (paragraph 13 of his witness statement on oath), the claimant was invited to appear before the Board Finance & General Purpose Committee. The first paragraph of Exhibit C9 reads as follows – The Board Finance & General Purpose Committee had been constituted into a panel to look into the allegations of fictitious sales of properties and manipulation of financials made against you and an extra ordinary meeting of the Committee has been convened to hold on Monday November 8 2010 in the Board Room of FBN Mortgage Limited, 76, Awolowo Road Ikoyi, Lagos at 2pm. You are hereby invited to attend the meeting to defend the allegations made against you and you are advised to come along with any documents that may aid your case. That upon receiving this letter on the 8th of November 2010 the claimant hurriedly prepared a written response also dated November 8, 2010. In the said response, he explained that he did not engage in any false sales but rather as part of their marketing strategies, he collected deposits for sales of some properties to certain named people in 2009. The sales were booked in the company’s account; however, when the customers later withdrew from the sales the entries in the account were all revised before the account for the year 2009 were finalized. The amended financial report was forwarded to the group office. He reiterated that “the same amended result was also forwarded to the external auditors for the year ended and used to prepare financial report to the Board”. That it should be noted that the claimant’s response dated 8th November 2010 addressed the issue of false sales based on his experience before the Disciplinary Committee on 20th October 2010 where sales to Messrs. Interaf, and Telios were brought up impromptu and he responded to them. When the claimant appeared before the Board Committee the report of the management panel was not made available to him, but from the proceedings it became clear to him that the committee had a pre-set mission to deal with him and find him guilty. That several questions which were unrelated to the allegations of fictitious sales of properties and manipulation of financial account but were related to transactions that occurred during the tenure of “a formal Managing Director of the company of the defendant” were asked with a view to indicting him at all cost. Furthermore, that the allegedly manipulated financial report was never shown to the claimant neither was the manner of manipulation put to him (paragraph 16 of his witness statement on oath). As a matter of fact, that the alleged manipulated statement of account was not produced in Court notwithstanding its importance to the defendant’s case as the claimant had put it in issue. All that the defendant did was to put in Exhibit D8, a letter dated March 1, 2011 purportedly written to their External Auditors requesting for an adjustment of their financial records for the year 2009 through DW2. During cross-examination of the witness (who co-signed Exhibit D8), she admitted that the defendant was obliged by law to submit its audited accounts to the Central Bank of Nigeria within 4 months of the end of the financial year. However, the witness who claims to be the Head of Finance of the defendant confessed that she did not know whether the audited accounts for the year 2009 was submitted to the Central Bank of Nigeria as required. It is the claimant’s submission that Exhibit D8 is not only an afterthought but is also a poor and futile attempt to justify the dismissal of the claimant on the allegation that he manipulated the financial accounts of the defendant for the year 2009. The claimant consistently maintained both before the Disciplinary and the Board Committees and even before this Court that when the customers who paid deposits on the houses could not continue the transactions, he reversed the entries in the accounts and sent it to the Board before the 2009 accounts was finalized. The defendant never confronted him with the allegedly manipulated accounts so as to put a lie to his consistent assertion. Notwithstanding his defence before the Board Committee, the defendant communicated by letter dated 15th November 2010 the decision of the Board of Directors of the defendant dismissing him for action which it considered “to be unethical unprofessional and an act of misconduct in an institution that prides itself on integrity” (Exhibit C11). That a careful consideration of the facts of this case as set out above cannot but leave one with the impression that the claimant had not been given a fair trial/hearing as required by law and the defendant’s Employee’s Handbook (Exhibit C8), referring to section 36(1) of the 1999 Constitution, which constitutional provision gives the claimant the right to a fair hearing. Edet v. Chief of Air Staff & ors [1994] 2 NWLR (Pt. 324) 41 was then referred to the Court. That in the case at hand, the claimant was never given the letter dated 18th October 2010 wherein Gaffort Engineering Limited was alleged to have indicted him of false sales of properties. The letter, if it exists, has not even been produced before this Court. Engr. Abolade Idowu who wrote the letter never appeared before the Disciplinary Committee or the Board Committee of the defendant company which investigated and determined the claimant’s fate. The claimant was given a very short period to appear before both the Disciplinary Committee and the Board Committee. When he appeared before the Board Committee, the report of the Disciplinary Committee which indicted him and recommended his dismissal was not made available to him. As a matter of fact, the claimant never saw the report of the Disciplinary Committee until the defendant produced it in Court. Although the claimant was accused of manipulating the financials of the defendant company, which he denied, the said financial account was not shown to him at any time and same was not even presented before this Court. Furthermore, that the answer of Mr. Chuks Adigwe to the query issued to him by the defendant wherein he allegedly indicted the claimant was never given to him. Although DW1 testified that Mr. Chuks Adigwe’s response was made available to the claimant, she admitted that she was not the person that made it available to him; she didn’t state the name of the person who allegedly made it available to him. Chucks Adigwe’s response to the query issued to him was not attached to Exhibit D3 issued to the claimant. It is only natural to conclude that this important document was not made available to him. More importantly and most damaging to the defendant’s case, that DW1 admitted under cross-examination that at the time the claimant was answering the query issued to him, he was not in possession of Chucks Adigwe’s response to the query issued to him. That in a last ditch attempt to strengthen its case on the alleged falsification of the defendant’s company financial statement for the year 2009, the defendant presented DW2 who tendered a letter which she allegedly wrote in March 2011 (Exhibit D8) wherein the defendant requested its external auditors to adjust its financial record to reflect the true financial position of the bank as at December 31, 2009. Under cross-examination the witness admitted that audited accounts of all institutions falling within the regulatory authority of the Central Bank of Nigeria are required by law to be submitted within four months of the end of the financial year. That the only inference that can be drawn from the testimony of DW2 is that Exhibit D8 is an afterthought which unfortunately for the defendant did not help its cause. As at the time Exhibit D8 was submitted to the defendant’s external auditor, if indeed it was submitted to them, the time within which the audited account for the year 2009 should have been submitted to the Central Bank of Nigeria had expired by about a year. It was the defendant’s case that the claimant violated the policy of the defendant which required that a customer must deposit not less than 30% of the total purchase price before income can be recorded in the book of the company on that transaction. The claimant denied the existence of any such policy. The defendant, however, did not bother to produce the policy document or confront the claimant with it at any time, yet this formed one of the pillars on which his dismissal was based. That the defendant’s Board Committee that heard and decided the claimant’s fate did not hear Mr. Chucks Adigwe or Engr. Abolade Idowu who are said to be the principal accusers. In a situation where the claimant was not given opportunity to confront people who allegedly indicted him nor were their statements made available to him, the proceedings cannot be said to be fair. Even the disciplinary committee of the Board that decided his fate did not hear those people. The claimant then submitted that he has not been given fair hearing and the decision of the Committee cannot stand, referring to Union Bank Ltd v. Ogboh [1991] 1 NWLR (Pt. 167) 369 at 386, NEPA v. Ango [2001] 15 NWLR (Pt. 737) 627, Olatunbosun v. NISER [1988] 3 NWLR (Pt. 80) 25 and Baba v. NCATC [1991] 5 NWLR (Pt. 192) 388. That these cases also decided that where there has been an infraction of the fundamental right of an employee charged with acts of misconduct, the decision of the panel cannot stand. In the instant case, that the claimant was not only denied the opportunity of knowing the evidence or the case against him, he was actually deceived as to the case against him because Gaffort Eng. Limited never made any such case of false sales against him. It was a clear case of giving a dog a bad name in order to hang it. Furthermore, that his dismissal was hinged on a non-existent policy of deposit of 30% of purchase price before income can be recognized. The defendant had relied on Olanrewaju v. Afribank Nigeria Plc [2001] 13 NWLR – page not supplied, Donier Aviation Nig. Acep Ltd v. Capt. Tunde Oluwadare [2007] 7 NWLR (Pt. 1033) 336, Adams v. LSDPC [2000] 5 NWLR (Pt. 656) 291 at 320 and Longe v. FBN Plc [2005] 3 NWLR (Pt. 967) 228 for the proposition that in pure master-servant employment the issue of fair hearing or the principles of natural justice cannot arise or apply. It is the claimant’s submission that this is a rather general or bland statement of the law. That the submission had been made earlier that under the terms of the contract of employment between the claimant and the defendant (Exhibit C8) he is entitled to a hearing before he can be dismissed and that the right to a hearing connotes a right that the hearing will be fair. Any hearing that derogates from fairness cannot be a ‘hearing’ properly so called, it can only be a ‘sham’ of a hearing; a hollow ritual. Also referred to the Court is Osakwe v. Nigerian Paper Mills [1998] 1 NWLR (Pt. 568) 1. The claimant herein was dismissed for misconduct simpliciter. It is the claimant’s submission that this is not just hair splitting. That Article 11.2 of Exhibit C8 provides as follows – OFFENCES THAT ATTRACT WARNING LETTER OR TERMINATION OF APPOINTMENT: An employee may be given a written warning in respect of any of the following major cases of misconduct/negligence. The claimant then submitted that the defendant clearly understood the difference between “misconduct” and “gross misconduct” hence the different sanctions that they attract. That if then the defendant found the claimant guilty of misconduct, which attracts a warning letter or termination of appointment can it lawfully summarily dismiss him when the offence that warrants dismissal is gross misconduct? That the answer of course is in the negative. For this reason, that the decision of the defendant ought to be set aside for being in violation of the terms and conditions governing the employer/employee relationship between the claimant and the defendant, citing Olanrewaju v. Afribank Nigeria Plc (supra). Incidentally, that the defendant also relied on this authority and conceded that non-compliance with the terms and conditions of service renders the dismissal wrongful. That it should be noted that the claimant had contended in paragraph 20 of his statement of facts that – The Claimant says he did not misconduct himself in any way, and if at all he did [which is not conceded] the misconduct was not such as would warrant his dismissal from the services of the Defendant. That this contention has clearly been borne out, urging the Court to declare the dismissal of the claimant unlawful. In conclusion on this issue, the claimant urged the Court to decide this issue in his favour and hold that his dismissal from the employment of the defendant is irregular, unlawful and not in compliance with his contract of service. As for issue b) i.e. whether the claimant is entitled to the reliefs he seeks, the claimant first abandoned reliefs 2 and 3 as per the complaint and the statement of facts, relying instead on the alternative relief 5. The claimant then submitted that he is entitled to the declaration sought under relief 1. That the evidence before the Court when considered against the law and applicable legal principles show clearly that his dismissal from the services of the defendant by letter dated 15th November 2010 was done in breach of his fundamental human right as he was not accorded a fair hearing. Also that the defendant acted contrary to the provisions of the conditions of the claimant’s employment. He is therefore entitled to the declaration. That relief 4 is a claim for the sum of N8,062,600.00 (Eight Million, Sixty-Two Thousand, Six Hundred Naira) being loss as a result of forced sale of the claimant’s property at No. 24B, Thistle Road, Northern Foreshore Estate, Chevron Drive, Lekki Lagos. To the claimant, the evidence before the Court is that Exhibit C11 which is the letter of summary dismissal requested the claimant to immediately pay the sum of N29,825,929.45 (Twenty-Nine Million, Eight Hundred and Twenty-Five Thousand, Nine Hundred and Twenty-Nine Naira, Forty-Five Kobo) which the defendant had computed to be the claimant’s net obligation within 30 days. That the claimant by Exhibit C12 appealed to the defendant for a reconsideration of his case pointing out that his chances of getting another employment were remote and that he had put the property which he acquired with his staff mortgage loan on the market prematurely so as to be able to pay up as demanded by the defendant. The defendant, however, refused to accede to his request, referring to Exhibit C14 dated December 30, 2010. That in the circumstances, the claimant had no option than to sell his property below the cost of purchase and the improvement he had made on it. That the sum of the initial purchase price and improvements on the property was N40,032,600.00 (Forty Million, Thirty-Two Thousand, Six Hundred Naira only) whereas the property was sold for N32 million only, referring to Exhibits C19, C20 and C20A. That the difference between the amount realised for the false sale and the total cost of purchase and improvement by the claimant is N8,032,600.00 (Eight Million, Thirty-Two Thousand, Six Hundred Naira only) and this is what the claimant is claiming. That there Is no doubt that the claimant was forced to sell his property in order to liquidate what the defendant had calculated to be his terminal net obligation pursuant to his unlawful dismissal. That the claimant is entitled to recover this amount once his dismissal is found to be unlawful as he would not have needed to sell the property under any compulsion. The claimant also claims for N6 million (Six Million Naira) being gratuity benefit due to him. That this is rooted in Exhibit C18. Exhibit C18 is a Terminal Gratuity Benefit Policy approved by the Board of Directors of the defendant’s company. Under that gratuity policy, the claimant would have been entitled to the sum of N6 million (Six Million Naira) gratuity if he was not summarily dismissed from the appointment of the defendant. That the defendant did not deny the existence of Exhibit C18 and so it is deemed admitted. The claimant accordingly urged the Court to award the claim for gratuity benefit. On the claim for the sum of N85 million (Eighty-Five Million Naira) for loss of opportunity to work in other financial institutions due to the unlawful dismissal, the claimant submitted that he is entitled to this claim. That by virtue of his dismissal from financial institution for misconduct, he cannot secure another employment in any financial institution hence the claim for N85 million (Eighty-Five Million Naira) for loss of opportunity. That he was only fifty-three (53) years old at the time of his unlawful dismissal. That at the time of his dismissal, his take home pay based on Exhibit C4 was about N10 million (Ten Million Naira) per annum and this is not taking into consideration increases in salary which would have come inevitably. Definitely, that he would have not less than 7 years service which he had been robbed of by the unlawful act of the defendant. That he is, therefore, entitled to this head of claim. Next is the claim for 15% interest on the amount awarded. To the claimant, the defendant is a financial organisation and it understands the value of money. That depriving the claimant of his due funds, the defendant had access to this money and obviously applied it to its own profit. That it is only fair that the claimant be awarded interest on the outstanding amount. In conclusion, the claimant urged the Court to grant the reliefs sought by him. THE DEFENDANT’S REPLY ON POINTS OF LAW The defendant reacted on points of law in respect of two issues: damages and fair hearing. On the issue of damages, the defendant submitted that the claimant’s claim for N8,062,600.00 being the loss he suffered as a result of the forced sale of his property is one for special damages, which must be pleaded in terms of the particulars and credible evidence led in proof, citing Prof. Ajiboye Akinkugbe v. Ewelumu Holdings [2008] 12 NWLR (Pt. 1098) 375. That in the instant case, the claimant failed to lead credible and admissible evidence in respect of his claim for damages suffered and same should be refused. That ne credible evidence was led to establish the initial purchase price and improvement of the N40,032,600.00 and the sale price of N32 million, the figures supplied by the claimant. That even if the claimant led the necessary evidence, he would still not be able entitled to the damages claimed as the measure of damages he is entitled to will be based on the salary for the length of time which notice of termination should have been given in accordance with the contract of employment, referring to UBA v. Chinyere [2010] 10 NWLR (Pt. 1230) 475. The defendant pointed out that parties are bound by their pleadings, and then called on the Court to note that nowhere did the claimant claim to be entitled to his salary based on the length of notice required to be given under the contract of employment. That this Court is not a Father Christmas as to grant a relief not sought. On the gratuity claimed, the defendant submitted that this too is in the nature of special damages which the claimant must establish by credible evidence. That by Exhibit C18, an employee shall be entitled to gratuity which is 100% of his total terminal annual emolument on reaching 5 years of continuous employment increased by 20% annually. That the claimant has the onus of establishing the exact amount due to him as gratuity by adducing credible evidence and it is not the duty of the Court to carry out a forensic audit of the claimant’s case to determine how the claimant arrived at the figure of N6 million as gratuity. That Exhibit C18 only confirms that the claimant is entitled to gratuity if not dismissed or terminated from his employment. That it does not prove that the claimant is entitled to the specific sum of N6 million which is a matter to be established by credible evidence. That the claimant did not lead any evidence on his total terminal annual emolument on reaching the minimum period of 5 years which is the starting point for the computation of his entitlement. That by Exhibit C18, total annual emolument shall comprise of annual basic salary plus housing, lunch and transport allowance. That the claimant did not lead evidence on any of this, as such the defendant wondered how he arrived at the figure of N6 million as gratuity. Lastly on the issue of damages, the defendant submitted that where an employee is wrongfully terminated he will be entitled to damages which will be calculated on his salary based on the length of notice he is entitled to have received before his appointment can be terminated, plus any other contractual benefit and entitlement which can be established from the contract of employment. Accordingly, that the claimant’s claim for N85 million should be refused. On the issue of fair hearing, the defendant submitted that fair hearing is an opportunity to be heard, referring to Gukas v. Jos International Breweries Ltd [1991] 6 NWLR (Pt. 199) 614, which held that an employee whose employment is terminated on the ground of misconduct after being given an opportunity to be heard and has replied to a written query regarding the issue forming the basis of his termination cannot complain of lack of fair hearing. Also cited is Imonikhe v. Unity Bank Plc [2011] 12 NWLR (Pt. 1262) 624, which held that the requirement of fair hearing is met once an employee is queried for misconduct and he answered the query before the employer took the decision to dismiss the employee. The defendant further referred to this Court’s decision in Kayode Agbolade v. Ecobank Nig. Plc unreported Suit No. NICN/LA/34/2012 the judgment of which was delivered on 30th October 2013. I conclusion, the defendant reiterated that in an employment case of this sort the onus is on the employee to place before the Court the terms of the contract of employment and to prove in what way the said terms of the contract were breached by the employer, citing Amodu v. Amode [1990] 5 NWLR (Pt. 150) 356 at 373 and Iwuchukwu v. Nwizu [1994] 7 NWLR (Pt. 357) 379 at 412. That nowhere has the claimant alleged that any provision of the contract of employment was breached and neither has he established by credible evidence the manner in which his term of employment was breached. That the claimant’s claim is hinged on the breach of fair hearing and not on any breach of any specific term of his contract of employment. In orally adopting its written addresses, the defendant referred to the Court Prof. Yakubu v. FRN [2009] 14 NWLR (Pt. 1160) 151 at 165, where the Court of Appeal held that if in the course of investigating an employee new infractions are discovered. Nothing stops the employer from acting on them so long as the new infractions are brought to the attention of the employee. COURT’S DECISION I heard learned counsel and considered all the processes filed in this case. To start with, the claimant in paragraph 2.2.1 of his final written address abandoned reliefs 2 and 3 as per his complaint and statement of facts. Relief 2 is for an order reinstating the claimant to his position as Deputy General Manager in the defendant’s company with all the attendant remuneration and perquisites of office, while relief 3 is for arrears of his full remunerations from October 25th 2010 till judgment date with interest thereon at the rate of 15% per annum. These reliefs, having been abandoned by the claimant, are hereby dismissed. Given what is left of the reliefs claimed by the claimant, the issues before the Court have accordingly been narrowed to: whether the dismissal of the claimant is unlawful, wrongful and was done in breach of his fundamental human rights; and whether he is entitled to the monetary reliefs he claims i.e. the sum of N8,032,600.00 being the loss he sustained as a result of the forced sale of his landed property, the sum of N6,000,000.00 being his gratuity benefit, the sum of N85,000,000.00 being damages for loss of employment opportunities given his wrongful dismissal from work, and interest and cost. To start with the first issue i.e. whether the dismissal of the claimant is unlawful and wrongful, the argument of the claimant is that it is because he was not given fair hearing before he was dismissed. In this regard, the claimant’s case is that: the Disciplinary Committee of the defendant’s Board failed to meet the standard requirement of fair hearing in disciplinary proceedings; there is no element of fairness in the entire proceedings; the decision to dismiss the claimant is contrary to the terms and conditions of his service with the defendant (Exhibit C8); as such the Court should hold that his dismissal from the employment of the defendant is irregular, unlawful and not in compliance with his contract of service. Here, the claimant seems to have in mind the test laid down in Olabode Adewunmi v. Nigerian Eagle Flour Mills [2014] LPELR-22557(CA), where Dongban- Mensem, JCA delivering the lead judgment had this to say – The management held a hide and seek inquisition from which a few facts were extracted and flung at the Appellant with executive fiat demanding replies. The Appellant obediently responded to the letters sent to him. The case of Adingun & ors v. A.G. Oyo State & Ors (1987) 1 NWLR (pt.53) 678 @ 758 clearly held that the rules of natural justice must be observed in an administrative enquiry. Such was not done in the proceedings leading up to the dismissal of the Appellant. A procedure where an accuser is shielded from the accused all through the inquiry is certainly not one in compliance with natural justice. Presence and direct confrontation has a lot of impact and produce different results from a one sided inquisition by an executive of his subordinate. In employment cases, the Supreme Court in Ekeagwu v. 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. See also Aji v. Chad Basin Development Authority & anor [2015] LPELR-24562(SC) and Ademola Bolarinde v. APM Terminals Apapa Ltd unreported Suit No. NICN/LA/268/2012 the judgment of which was delivered on February 25, 2016. It is not for the defendant employer to prove any of this. See further Akinfe v. UBA Plc [2007] 10 NWLR (Pt. 1041) 185 CA and UTC Nigeria Ltd v. Peters [2009] LPELR-8426(CA). In the instant case, the claimant tendered a number of exhibits in proof of his claims. In thus determining whether the dismissal of the claimant was wrongful, it may be necessary to go over the exhibits, and hence the sequence of events leading to his dismissal. Exhibit C5 dated October 20, 2010 is the letter asking the claimant to explain his role in false sales relating to 2 units of houses (units A5 and A6) in Pinegroove Estate. The same October 20, 2010, the claimant responded vide Exhibit C6. In the said response, the claimant specifically said that he was “not aware of any arrangement to make false sales to anybody” and that “all efforts to sell were genuine and in the interest of the organization”. He, however, acknowledged that they were under intense pressure to sell stock of properties at hand. He also acknowledged that Gaffot was one of the prospects approached by Mr. Adigwe to but properties at Pinegroove Estate. The defendant was not satisfied with the claimant’s response and so opened up a disciplinary inquiry against him and also placed him on suspension without pay effective October 25, 2010 for the period of the investigation. See Exhibit C7, which is dated October 22, 2010. Exhibit C8 containing the conditions of service of staff of the defendant in clause 11.3 allows for suspension with pay (half basis salary and full housing, utility and transport allowance) but not suspension without pay, meaning that the claimant’s suspension without pay vide Exhibit C7 was wrong as it was contrary to the conditions of service governing the claimant’s employment. See Mrs. Abdulrahaman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board & anor [2013] 35 NLLR (Pt. 103) 40 NIC, Ms. Claudia Ojinmah v. Coxdyn Nigeria Ltd unreported Suit No. NICN/LA/111/2012 the judgment of which was delivered on March 27, 2014, Mr. Osamota Macaulay Adekunle v. United Bank for Africa Plc unreported Suit No. NICN/IB/20/2012 the judgment of which was delivered on 21st May 2014, Mr. Bisiriyu Adegoke Sheu v. Lagos NURTW (First BRT) Cooperative Society Limited unreported Suit No. NICN/LA/532/2013 the judgment of which was delivered on 1st July 2015, Kasali Olugbenga v. Access Bank Plc unreported Suit No. NICN/LA/430/2013 the judgment of which was delivered on December 3, 2015 and Mr. Anthony O. Obasa & ors v. DAAR Communications Plc [Publishing & Printing Division] & 2 ors unreported Suit No. NICN/LA/360/2012 the judgment of which was delivered on March 9, 2016. But in the instant suit, the case of the claimant is not that his suspension was wrong; and he makes no claim on that. By Exhibit C9 dated 4th November 2010, the claimant was invited to the Finance and General Purpose Committee’s (F & GPC’s) extraordinary meeting of the defendant’s Board. The meeting was scheduled for 8th November 2010. Exhibit C9 made it clear that the F & GPC has been constituted into a panel “to look into the allegation of fictitious sales of properties and manipulation of financials made against you…” and the claimant was expected “to attend the meeting and defend the allegations made against [him]” with the advice that he comes with any documents that may aid his case. By Exhibit C10 dated 8th November 2010, the claimant wrote to the F & GPC responding “to the allegation of fictitious sales and manipulation of financials made against me”. See paragraph 1 of Exhibit C10. Now, the case of the claimant is that he was not confronted with the Report of findings of the earlier “Disciplinary Committee” which formed the basis of the hearing by the F & GPC. That he was merely informed that the panel would hear him on Monday November 8, 2010. That he was not given details of the allegations neither was he given ample opportunity to prepare for his defence, as he was given the letter of invitation on the same day, 8th November, 2010 (it should be noted that Exhibit C9 did not indicate the date of its receipt by the claimant). That on the said 8th November 2010, he appeared before the F & GPC with a written submission dated 8th November 2010 (Exhibit C10) wherein he attempted to react to the blanket allegations made against him by the defendant. That at the sitting of the F & GPC, he was asked several questions which were unrelated to the allegations of sales of fictitious properties and manipulations of financial reports and none of his accusers was made to confront him, neither was he given any details of the case against him. To start with, I wish to reiterate that Exhibit C9 made it clear that the F & GPC has been constituted into a panel to look into the allegation of fictitious sales of properties and manipulation of financials made against the claimant. In his response vide Exhibit C10, the claimant in the first paragraph said he was responding “to the allegation of fictitious sales and manipulation of financials made against me”. Nowhere in Exhibit C10 did the claimant complain that his response is bereft of the Report of findings of the earlier “Disciplinary Committee” which formed the basis of the hearing by the F & GPC, or that he merely received the invitation to appear before the F & GPC on the same date of the F & GPC’s meeting and so was not given ample opportunity to prepare for his defence, or that he was not given details of the allegations against him, or even that the said allegations against were blanket allegations. Having to raise all of these issues now by the claimant is an afterthought. Fair hearing is opportunity, which if not seized cannot later be cried on or complained about. The claimant was given ample opportunity by the defendant to defend himself; and I so find and hold. If he had issues such as those he enumerated, he ought to have appropriately raised them when responding vide Exhibit C10. Exhibit C10 does not in any way suggest that the claimant was not aware of what he was answering to. In A. R. Momoh v. CBN [2007] 14 NWLR (Pt. 1055) 508 at 527, Aboki, JCA had this to say – …I am satisfied that the appellant was provided ample opportunity to attend the Inter-departmental Committee set up by the respondent and was also given an opportunity to defend himself. The appellant had not complained of any irregularity in the procedure adopted at the hearing before the Inter-departmental Committee or that his right to fair hearing has been violated. And in Benedict Hirki Joseph v. First Inland Bank Nig Plc [2009] LPELR-8854(CA), Abba-Aji, JCA stressed that an employee who was confronted with allegation of misconduct before his employment was terminated cannot complain about lack of far hearing. Additionally, His lordship held that details of the allegations were contained in the query and the appellant cannot claim he had not had a full briefing of what to meet and his subsequent replies; and that the appellant was given opportunity to explain his own side of the story in writing which in itself constituted fair hearing. Elsewhere, the argument by an employee that he was not afforded fair hearing before being dismissed by the employer arose in Kayode Agbolade v. Ecobank Nig. Plc unreported Suit No. NICN/LA/34/2012 the judgment of which was delivered on 30th October 2013, and this is what this Court said – The claimant had argued that his dismissal is unlawful, illegal, null, void and unconstitutional as his right to fair hearing as guaranteed by the 1999 Constitution was denied him by the defendant. In Exhibit KA3, a letter from the claimant to the Managing Director of the defendant, an exhibit objected to (but which objection I do not uphold), the first paragraph states as follows – ...I wish to humbly restate my position and hope that this case will be reviewed in light of my efforts and contributions in uncovering these frauds. For the claimant to be “restating his position” means (and could only) that he had the opportunity to state his case in a first instance. To, therefore, say that he was not given fair hearing cannot be correct on his part. Fair hearing is opportunity to be heard. In this sense, the Court of Appeal case of Gukas v. Jos International Breweries Ltd [1991] 6 NWLR (Pt. 199) 614 and the recent Supreme Court case of Imonikhe v. Unity Bank Plc [2011] 12 NWLR (Pt. 1262) 624 are apposite. The case of Gukas v. Jos International Breweries Ltd held that 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. And the case of Imonikhe v. Unity Bank Plc at page 648 per the concurring judgment of His Lordship Rhodes-Vivour, JSC held that 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 requirements of fair hearing because he answered the respondent’s queries before he was dismissed from his employment. The claimant had also argued that going by Exhibit ECO7, the transcript of the claimant’s interview with the defendant’s Internal Audit Group, it will be found that at no time was he confronted with the issue of non-completeness of account opening. Also that he was not anytime given fair hearing regarding his failure to ‘post a no debit’ clause on the GCO account which was alleged to have aided the fraud committed by Mr. Suleiman Jokthan. But the Court of Appeal case of ACB Plc v. Nbisike [1995] 8 NWLR (Pt. 416) 725 has it that an employer, when dismissing his employee, need not allege any specific act of misconduct on the employee’s part as the ground for the dismissal. It is sufficient if such a ground did exist, whether or not the employer knew of it at the time of the dismissal. Therefore, it is not a requirement of the law that the nature or particulars of the gross misconduct are to be disclosed at the time of dismissal. The argument of the claimant in this regard, therefore, goes to no issue; and I so find and hold. See also Avre v. NIPOST [2014] LPELR-22629(CA), where Augie JCA held that the issue of a query to which the appellant (employee) responded and which response the respondent (employer) did not find satisfactory and so exercised the power of dismissal all satisfied the fair hearing requirement of the law. And in Mr. Adewale Aina v. Wema Bank Plc & anor unreported Suit No. NICN/LA/162/2012 the judgment of which was delivered on January 28, 2016, this Court held as follows – The claimant argued that he was not given fair hearing. As I indicated, evidence abounds in the case file that the claimant was queried, he answered the query and a disciplinary hearing was conducted on him, which he attended. Fair hearing is opportunity. The claimant cannot say he had no such opportunity. I do not accordingly agree with the claimant that he was not given fair hearing. Given the authorities of Gukas v. Jos International Breweries Ltd [1991] 6 NWLR (Pt. 199) 614 CA, Imonikhe v. Unity Bank Plc [2011] 12 NWLR (Pt. 1262) 624 SC, ACB Plc v. Nbisike [1995] 8 NWLR (Pt. 416) 725 CA, Avre v. NIPOST (supra), A. R. Momoh v. CBN (supra) Kayode Agbolade v. Ecobank Nig. Plc (supra) and Mr. Adewale Aina v. Wema Bank Plc & anor (supra), therefore, I have no hesitation in finding and holding that the claimant was given all ample opportunity to defend himself and so was not in any way denied fair hearing. This is because by especially Imonikhe v. Unity Bank Plc and Avre v. NIPOST it is sufficient that the claimant was given a query, which he answered before the decision to dismiss him was taken by the defendant. All of this means that relief 1, which seeks for a declaration that the claimant’s dismissal from the services of the defendant by letter dated 15th November 2010 is unlawful, wrongfully and was done in breach of his fundamental human rights as argued for by the claimant cannot be sustained. It is accordingly dismissed. Relief 5(ii), which seeks for damages in the sum of N85,000,000.00 for the loss of employment opportunities to work in other financial institutions due to the wrongful dismissal of the claimant by the defendant’s company is tied on a finding by this Court that the claimant’s dismissal is wrongful. Since I did not find the dismissal of the claimant to be wrongful, it means that relief 5(ii) cannot be sustained too. The said relief is also dismissed. This leaves out the claim for N8,032,600.00 being loss sustained as a result of the forced sale of the claimant’s property; and the claim for gratuity benefit in the sum of N6,000,000.00. Even the claim for N8,032,600.00 is equally tied to a finding that the dismissal of the claimant is wrongful, for only then can the sale be said to have been induced and so a forced one. Thus the finding by this Court that the claimant’s dismissal was not wrongful also means that the sale cannot have been induced and forced by that act, branded wrongful by the claimant. But even aside from this, I agree with the defendant that there is nothing before the Court to show how the claimant arrived at the sum of N8,032,600.00 as a loss he incurred. In paragraph 22 of the statement of facts, the claimant indicated that he sold the property in question for N32,000,000.00. He then itemized the cost of purchase and improvement made on the property and allotted sums of money as per cost of purchase, agency fee on purchase, cost of title document, interest charges, cost of improvement on property in relation to tiling, electrical, horticulture, POP ceiling, etc, agency fee on sale and service charge paid to estate managers. The total cost was then put as N40,032,600.00. He concluded by stating the loss sustained to be N8,032,600.00. All of this was repeated in paragraph 24 of his sworn deposition. However, no supporting documentary evidence whatsoever of any of these expenditures was put before the Court. The expenditures outlined by the claimant are not the sort that oral evidence can establish in a suit of this sort. In short, the claimant cannot be held to have proved his entitlement to the sum of N8,032,600.00. The claim for N8,032,600.00 accordingly fails and is hereby dismissed. As for the claim for N6,000,000.00 as gratuity benefit, the argument of the defendant is that the claimant who was dismissed for a gross misconduct in accordance with clause 11.4 of the employment handbook is not entitled to his wages, benefits gratuity, arrears of salary and even damages. That if the Court finds that the claimant was dismissed for misconduct his claim for reinstatement, gratuity, arrears of salary and damages must fail. Here, I must state that the defendant misread the law. The defendant’s stance represents the old dispensation. In Kasali Olugbenga v. Access Bank Plc unreported Suit No. NICN/LA/430/2013 the judgment of which was delivered on December 3, 2015, this Court held as follows – It used to be that dismissal in carrying with it infamy/ignominy deprives the dismissed employee from any benefit even if earned. See Abomedi v. NRC [1995] 1 NWLR (Pt. 372) 451 CA and Ante v. University of Calabar [2001] 3 NWLR (Pt. 700) 239 CA. However, today whether termination or dismissal, the employee is entitled to all earned salaries and emoluments. I alluded earlier to Underwater Eng. Co. Ltd v. Dubefon where the Supreme Court held that an employee’s salary becomes due and his right to it is vested at the end of each month; hence, the employer cannot dismiss or terminate his employee’s employment with retrospective effect with a view to denying him his vested right to his salary; and Udegbunam v. FCDA where the Supreme Court further held that in a claim for wrongful termination of appointment, an employee can also claim for salaries, leave allowances, etc, earned by the employee but not paid by the employer at the time of the termination. So despite the dismissal of the claimant by the defendant, he is still entitled to be paid all his earned salary and emolument. And in Mr. Adewale Aina v. Wema Bank Plc & anor unreported Suit No. NICN/LA/162/2012 the judgment of which was delivered on January 28, 2016, this Court also held that “whether dismissal is earned or not, the new dispensation is that all earnings of an employee prior to the dismissal must be paid by the employer to such an employee”, referring to Udegbunam v. FCDA [2003] 10 NWLR (Pt. 829) 487 SC and Underwater Eng. Co. Ltd v. Dubefon [1995] 6 NWLR (Pt. 400) 156 SC. There is accordingly no doubt that if the claimant proves any earning due to him but not paid by the defendant (including gratuity), he would be entitled to a verdict from this Court in that regard. The question presently is, therefore, whether the claimant has so proved his entitlement to the gratuity benefit of N6,000,000.00. Exhibit C11 dated 15th November 2010 is the letter summarily dismissing the claimant. In the second paragraph, it indicated that attached is the calculation of the claimant’s “terminal benefit/obligation” to the defendant. The claimant was then requested to forward his cheque for the sum of N29,825,929.48 being his net obligation to the organization. The calculation attached to Exhibit C11 said nothing of gratuity as an entitlement to the claimant, who by the way (and as indicated in the attachment to Exhibit C11) had put in 7 years 4 months in the service of the defendant. In paragraph 25 of his statement of facts, the claimant pleaded that “the action of the defendant in summarily dismissing the claimant robbed him of his entitlement to gratuity in the sum of N6,000,000.00 as contained in the TERMINAL GRATUITY POLICY”. This is repeated as paragraph 28 of the sworn deposition of the claimant. Beyond this, nothing else is said of the claimant’s claim for gratuity even under cross-examination. Is this then sufficient proof of the claimant’s entitlement to gratuity and actual proof of the sum of N6,000,000.00 by the claimant? I do not think so. It is in paragraph 2.2.4 of the written address of counsel to the claimant this Court is told that the claimant’s claim for N6,000,000.00 being gratuity benefit is rooted in Exhibit C18, a Terminal Gratuity Benefit Policy approved by the defendant’s Board of Directors, under which the claimant would have been entitled to the sum of N6,000,000.00 as gratuity if he was not summarily dismissed from the appointment of the defendant. And because the defendant did not deny the existence of Exhibit C18, it must be deemed admitted; for which the Court should award the claim for gratuity. The opening words of Exhibit C18, a memo dated 22nd October 2008 from the Board F & GPC to the Board of Directors, relied upon by the claimant, shows it to be a recommendation. The concluding words of the first paragraph of Exhibit C18 are: “…we recommend a terminal gratuity policy for the directors and staff of the company on the following terms and conditions…” There is no way that a recommendation, which has not been shown to have been accepted can create an entitlement as the claimant seems to think. Even if it were to do so, which I seriously doubt, I agree with the defendant that the claimant would still not succeed in his claim as he did not show to the Court how he arrived at the said sum of N6,000,000.00 as gratuity. In other words, the claimant expects the Court to carry out a forensic audit of his case to determine how the claimant arrived at the figure of N6 million as gratuity. The law is that a party who produces an exhibit so that the Court could utilise it in the process of adjudication must not dump it on the Court, but must tie it to the relevant aspects of his case. See Ivienagbor v. Bazuaye [1999] 9 NWLR (Pt. 620) 552; [1999] 6 SCNJ 235 at 243, Owe v. Oshinbanjo [1965] 1 All NLR 72 at 15, Bornu Holding Co. Ltd. v. Alhaji Hassan Bogoco [1971] 1 All NLR 324 at 333, Alhaji Onibudo & ors v. Alhaji Akibu & ors [1982] 7 SC 60 at 62, Nwaga v. Registered Trustees Recreation Club [2004] FWLR (Pt. 190) 1360 at 1380 – 1381, Jalingo v. Nyane [1992] 3 NWLR (Pt. 231) 538, Ugochukwu v. Co-operative Bank [1996] 7 SCNJ 22, Obasi Brothers Ltd v. MBA Securities Ltd [2005] 2 SC (Pt. 1) 51 at 68, Eze v. Okolagu [2010] 3 NWLR (Pt. 1180) 183 at 211, ANPP v. INEC [2010] 13 NWLR (Pt. 1212) 547, Ucha v. Elechi [2012] 13 NWLR (Pt. 1316) 330 at 360, Belgore v. Ahmed [2013] 8 NWLR (Pt. 1355) 60 at 99 – 100, Omisore v. Aregbesola [2015] 15 NWLR (Pt. 1482) 202 at 323 and 324 and Ademola Bolarinde v. APM Terminals Apapa Limited unreported Suit No. NICN/LA/268/2012 the judgment of which was delivered on 25th February 2016. The claimant did not do this. Exhibit C18 was not so tied. In effect, it was simply dumped on this Court. That was not good enough. The claim for N6,000,000.00 as gratuity benefit has not been proved by the claimant; as such it fails and so is hereby dismissed. The claimant, having failed on all the principal heads of claim, cannot be entitled to either interest or cost. In sum, the claimant has failed to prove his case in its entirety. This case is accordingly dismissed. Judgment is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip, PhD