Download PDF
<p class="MsoNormal" style="margin-bottom: 0.0001pt;"><u><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">REPRESENTATION</span></u><span style="font-size:12.5pt;font-family:"Times New Roman","serif""><o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Roland Otaru SAN with Comfort Roland-Otaru Mrs, A.A. Francis-Evbuomwan Mrs <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">& C.W. Udeh for the Claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">M. Mordi with Shehu Mustapha, Daniel Obidiegwu and A. Aluko for the Defendant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" align="center" style="text-align:center"><u><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">JUDGMENT<o:p></o:p></span></u></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">By its General Form of Complaint dated 23/4/14, the Claimant approached this Court for judicial intervention against the Defendant and by her amended statement of facts dated 22/9/14 sought the following reliefs against the Defendant - <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. A declaration that the summary dismissal by the Defendant of the Claimant’s employment vide the Defendant’s letter dated 10/4/14 is null, void, unconstitutional and of no effect for failure to accord the Claimant her right to fair hearing as guaranteed under section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. A declaration that the purported letter of dismissal dated 10/4/14 by the Defendant issued against the Claimant based on a feedback from customers of alleged incidence of dishonesty and bribery constituted a violation of the Claimant’s fundamental Human Rights to fair hearing as guaranteed under Section 36(1) of the Constitution of Federal Republic of Nigeria (as amended) and <i>a fortiori</i> unconstitutional, null, void and of no effect whatsoever.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">3. A declaration that the dismissal of the Claimant’s employment by the Defendant is a flagrant breach of the conditions of service and code of conduct of the Defendant which is binding on the Defendant. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">4. An Order setting aside the Defendant’s letter of summary dismissal dated 10/4/14 wherein the Claimant’s employment was determined.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">5. An Order of payment of the Claimant’s salaries, emoluments and benefit from April, 2014, when the Claimant’s employment was unlawfully determined by the Defendant until judgment is given in this case.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">6. A sum of N10 Million as general damages for the unlawful dismissal of the Claimant’s employment by the Defendant, breach of Claimant’s contract of employment and <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">7. Cost of this suit.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">8. And any other Order(s) that this Honourable Court may deem fit to make in these circumstances of this case.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The Defendant filed its statement of defence on 10/7/14 and amended same on 10/3/15 and denied the claims of the Claimant in their entirety praying this Honorable Court to dismiss the Claimant’s suit and counter-claims as follows - <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. A declaration that the Claimant’s contract of employment was properly and effectively terminated upon delivery of the letter of summary dismissal on 10<sup>th</sup> April, 2014.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. The cost of prosecuting the instant action on a full indemnity basis.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin: 0in 0in 0.0001pt 7.1pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The Claimant subsequently filed a Reply to the statement of defence and counter claim in reply to Defendant’s processes.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The hearing of this case commenced on 17/3 15 when the Claimant testified as CW1. Claimant adopted her written witness deposition dated 22/9/14 as her evidence in chief as well as her deposition of 22/9/14 as her further evidence in this case and tendered 8 documents as exhibits. The documents were admitted and marked as <i>Exh. C1-Exh. C8. </i>The Claimant as made apparent from her pleadings alleged that she was an employee of the Defendant holding the position of the Business Development Supervisor of the Defendant until she was summarily dismissed by the Defendant on 10<sup>th</sup> April 2014; that she was never issued any letter of query as required in the Defendant’s Disciplinary Procedure and Code of Conduct prior to being issued with the notice of summary dismissal; that disciplinary hearing conducted by the Defendant on 10<sup>th</sup> April 2014 was conducted without due process and in violation of her constitutionally guaranteed right to fair hearing and that she was not guilty of the allegations made against her. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Under cross examination, the Claimant stated that the contents of her Witness Statement are true and correct; that she was never reprimanded by the Defendant; that she is nott aware of any verbal warning put in her file; that she was never summoned by the Managing Director of Defendant on any transactions; that she discussed daily briefings and gave reports as required to the Managing Director as she performed her duty; that she received money from a customer for onward disbursement to a 3<sup>rd</sup> party; that the customer is Mrs. Ijeoma of <i>Platinum Energy; </i>that the money was to be paid to one Mrs. Mopelola Adeleke who was a Marketer; that Mrs. Mopelola Adeleke helped <i>Platinum Energy</i> to sell her product and that she did not act as an agent between the parties. Witness added that her scope of duties included sourcing for Cargoes and allocation for the Defendant, helping to sell Cargoes and allocation of the Company and business development activities for the Defendant; that she performed her duties and did everything necessary for the company to achieve its set objectives; that she is not currently employed; that interfacing with the Union was not part of her initial duties; that it became part of her duties when she was transferred to Defendant in September, 2012; that the Defendant may inform staff of new schedules through performance objectives which will be in writing, daily briefings, via e-mail; that staff don’t act as agent of customers; that there is no rule or policy of the Company against a staff helping a customer; that once a customer pays for product and is issued the Release Order, he liaises with Depot Representative for loading operation; that she still checks on the customers even after loading and that once the entire product is evacuated her role in the transaction comes to an end.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">According to the witness, with regard to AGO, <i>Sahara</i> pays the Union dues but with regard to Petrol, the customers pay, though there are exceptions where the <i>Sahara</i> pays for the Customer; that <i>Platinum</i> <i>Energy</i> did not fall into the category of the exceptions because it did not ask <i>Sahara</i> to pay for it; that she is involved in the payment of Union dues on PMS; that the company often authorized her to pay on its behalf; that if <i>Sahara</i> is paying, the Union will come up with request papers and she would process it; that sometimes the Company pays directly and when Managing Director is not around she pays on behalf of the Company and when Managing Director returns she got reimbursed and that the <i>Account</i> <i>Department</i> will normally issue Cheques to be cashed and the cash given to her. The Defendant opened its case on 12/1/16 and called one Adekanmi Adesola as its <i>DW1</i>. Witness adopted his written statement on oath dated 11/7/14 as his evidence in chief. The documents sought tendered to be admitted as exhibits were successfully objected to. Witness prayed the Court to dismiss the case of the Claimant and grant the counter claims of the Defendant. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On 12/1/16, the Defendant opened its defence and called one Adekanmi Adesola as its <i>DW1. </i>DW1 adopted her deposition dated 11/7/14 as her evidence in chief. Witness also adopted her 2nd witness deposition dated 13/11/15 as her further evidence. The admissibility of the 5 documents sought to be tendered through this witness were successfully objected to. They were thus rejected and so marked. <i>The</i> case for the Defendant as contained in its 2<sup>nd</sup> amended statement of defence dated 23/11/15 was that the Claimant prior to her summary dismissal was notified of the allegations made against her and was subjected to the Disciplinary Committee Hearing on 10/4/14, consisting of Claimant and the following persons - Moroti Adedoyin-Adeyinka - Managing Director of the Defendant; Oladepe Funmi-Adeshina - Business Development Manager/Line Manager; Adekanmi Adesola - HR Business Partner and Foluso Sobanjo -Trade/Operations Manager; that at the said disciplinary hearing, the Claimant admitted the allegations of bribery and dishonesty leveled against her after which the Claimant was summarily dismissed from her employment on 10/4/14.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Under cross examination, <i>DW1 </i>stated that she has been with Defendant for over 2 years; that Defendant received feedback from <i>Platinum</i> <i>Energy</i> and <i>Moving</i> <i>Wheels</i> <i>Ltd</i> against the Claimant; that she was present at the <i>Disciplinary</i> <i>Hearing</i> on 10/4/14 the same date the letter of dismissal was issued; that also present at the <i>Hearing</i> were the Managing Director of the Defendant the Chair, Line Manager of the Claimant Mrs. Funmi Adesina Oladepe, Mr. Folusho Shobayo - who was Trade and Operations Manager at the time; that she was also there as Representative of Human Resources and that Representative of <i>Platinum Energy</i> and <i>Moving Wheels Ltd</i> were not present.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">According to the witness, Defendant’s Disciplinary procedure <i>Exh. C7</i> was not issued by Defendant for fun; that written notice was not served on the Claimant to attend the Disciplinary Hearing; that the allegation against the complainant was that she received gratification from <i>Platinum</i> <i>Energy</i>; that the product which <i>Platinum Energy Ltd</i> bought from Defendant was fully paid for; that the Group Head of Defendant Human Resources at the time was Mrs. Ibiene Okeleke; that no representative of Human Resources was at the Disciplinary Hearing except himself; that in the instant allegations against the Claimant there was no need for Query to be issued and served on her; that there were formal charges against the Claimant and Claimant actively participated at the hearing and accepted the accusations; that the charges were read to the Claimant at the hearing; that the Claimant was not served any notice containing the charges against her; that there were several reports and complaints against the Claimant spanning over time and hence the matter had to be dealt with immediately; that the Claimant was given verbal warning and later reduced to writing; that the <i>Disciplinary</i> <i>Hearing</i> started at about past 5p.m. and ended at about 6.30p.m. same day and that <i>Exh. C8</i> letter of Dismissal was issued after the proceeding ended at about 6.30p.m.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">One Oladepe Amuka-Pemu was called as <i>DW2. </i>Witness simply adopted her witness deposition made on 29/1/16 as her evidence in chief. Again, two documents tendered for admission as exhibits through this witness was successfully objected to. They were therefore rejected and so marked.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Under cross examination the witness stated that she was in her office on 19/3/14 at Defendant premises; that she at the Disciplinary Hearing of 10/4/14; that the hearing was in the evening; that she could not remember the time; that the allegation against Claimant was one of fraud; that she could not remember the amount involved; that the hearing was a question and answer session between the Managing Director and the Claimant; that she could not remember if the Claimant was on leave between 20/3/14 and 9/4/14; that the complaint against her was sent to her Managing Director; that she does not know the means of communication and that the person who complained was not present at the Disciplinary Hearing.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><b><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></b></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Two witnesses were called by the Defendant by subpoena. The first was Zainab K. Abubakar, <i>Deputy Manager, Compliance</i> at the Head office of the <i>Corporate Affairs Commission, </i>Abuja. Witness after showing evidence in proof of her identity (Showed Staff Identity Card No. 2328) and status informed the Court that she was subpoenaed to produce a <i>CTC</i> documents of <i>3L Cinovate Energy Limited RC No: 1206412. </i>The said document was marked as <i>KA1. </i><o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">One Godwin Obi who identified himself by his staff Identity Card No: 20150003 as a Legal Officer with <i>Zenith Bank Plc. </i>He informed the Court that he was invited to produce <i>Statement of Account of Sahara Energy Resource Limited from 2/7/15 - 6/1/16. </i>The said document was admitted and marked as <i>GO1.<o:p></o:p></i></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">At the close of hearing, learned Counsel on either side were directed to file their final written addresses in accordance with the Rules of this Court. The final written address of the Defendant was not dated but filed on 5/4/16 In it learned Counsel for the Defendant set down the following issues for the just determination of this case.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. Having regard to the evidence and the entire circumstances of the instant case, whether the Defendant in summarily dismissing the Claimant from her employment had substantially complied with the provisions of Defendant’s Disciplinary Procedure and Code of Conduct Manual. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. Whether the Claimant can properly institute the present proceedings for unlawful dismissal, without first complying with the appeals procedure as set out in the Defendant’s Disciplinary Procedure and Code of Conduct Manual, as incorporated into the Claimant’s Contract of Employment. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">3. Whether or not the Claimant is entitled to the reliefs as presently endorsed in its general form of complaint or any other relief having regard to the express and unambiguous provisions of the Claimant’s Contract of Employment.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Arguing issue 1, learned Counsel to the Defendant submitted that it is an established principle of law that in an employer/employee relationship, the terms regulating the relationship are as agreed in the contract of employment and that no extrinsic evidence is admissible to add to, vary, subtract from or contradict the terms of a written contract citing <i>Layade v. Panalpina World Transport Nigeria Limited (1996)6 NWLR (Pt. 456) 544 at 555; </i>That Clause 11.3 of <i>Exh. C7 </i>is binding on the parties; that the letter of summary dismissal <i>Exh. C8 </i>was issued pursuant to <i>Exh. C7 </i>- Defendant's <i>Disciplinary Procedure and Code of Conduct </i>and that this action is a breach of the Defendant's Code of Conduct. Learned Counsel argued that there was substantial compliance with the Defendant's Code of Conduct Exh. C7 in dismissing the Claimant. According to him, the intention of the parties in this case respecting <i>Exh. C7 </i>is to guarantee the right of an employee facing a disciplinary enquiry to be made aware of the allegations made against her and to enable such an employee to respond to respond to such allegations at the disciplinary hearing; that there is uncontroverted evidence before the Court showing that the Claimant was at every stage informed of the allegations made against her and afforded a reasonable opportunity at the disciplinary hearing conducted on 10/4/14 to respond to the allegations of misconduct made against her. Learned Counsel referred to the testimony of <i>DW1 </i>on 12/1/16 which according to him was corroborated by the testimony of DW2 and that having regard to the uncontroverted and undisputed evidence of the Defendant's witnesses that the Claimant while in the employment of the Defendant obtained a third party to pay for an allotment of petroleum product originally intended for <i>Platinum Energy </i>and that the Claimant received a gift in the course of the said transaction in excess of US$100 and failed to disclose same the Court should hold that the Claimant was made aware of the allegations against her and that the Court should hold that the Defendant had complied with the spirit and intent of <i>Exh. C7.<o:p></o:p></i></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><i><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></i></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Secondly, learned Counsel argued that the Claimant had waived her right to insist and/or demand on its strict adherence to the provisions of the disciplinary procedure as she failed to request that the disciplinary hearing be adjourned for twenty four hours as she was entitled to under her contract of employment and the Defendant's Disciplinary Procedure and Code of Conduct Manual. Counsel submitted that waiver is an intentional or voluntary relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right citing <i>Eze v. Okechukwu (2002)7 NWLR (Pt. 799) 348 at 399-400 & Olatunde v. O.A.U (1998)5 (Pt. 549) 178. </i>According to learned Counsel, by <i>Exh. C7 </i>either party may request that the disciplinary enquiry be postponed for a period of three days pending further investigation and that her active participation in the disciplinary hearing and subsequent admission of the allegations notwithstanding the knowledge of her right to request an adjournment of the disciplinary enquiry amounts to waiver on the part of the Claimant of her right to insist on strict adherence to the provisions of the Defendant's Disciplinary Procedure-<i>Exh. C7.</i> Counsel urged the Court to so hold.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On issue 2, learned Counsel submitted that the Claimant cannot institute the present action not having complied with the appeals procedure as contained in <i>Exh. C7. </i>Counsel submitted that an employee is bound by a contract of employment including any provision relating to an internal grievance appeals procedure and that it is trite law that where a contract provides for remedies or internal mechanisms for the resolution of disputes or an appeals procedure for a party aggrieved by a decision, a party must exhaust such local remedies or internal mechanisms before filing an action in court citing <i>Eguamwense v. Anaghizenwen (1993)9 NWLR (Pt. 315) 25, Inilorin v. Oluwadare (2006)14 NWLR (Pt. 1000) 751 & Victor v. FUTA & Anor. (2013) LPELR-22887 (CA). </i>Learned Counsel prayed the Court to dismiss this suit in view of the fact that it was filed prematurely and parties have gone through the rigors of trial.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On issue 3, learned Counsel argued that the damages which the Claimant claims are bogus and contrary to the established principles on assessment of damages for wrongful dismissal. Counsel submitted that in an action for damages for unlawful dismissal, the measure of damages is the amount the Claimant would have been entitled to had the contract been properly terminated in accordance with the terms of the contract of employment. Counsel cited <i>Osisanya v. Afribank (Nig.) Plc (2007)6 NWLR (Pt. 1031) 565, Ifeta v. SPDC (Nig.) Limited (2006)8 NWLR (Pt. 983) 615</i> & <i>Winifred Omage v. Nairda Nigeria Limited Suit No: NICN/LA/63/2013 </i>delivered on 30/9/14. Counsel urged the Court to so hold. With regards to Relief (e) of the Claimant's Amended Statement of Facts, learned Counsel submitted that a claim for salaries, emoluments and benefits from April 2014 when the Claimant's employment was determined until Judgment is given in this case is irreconcilable and variance with the settled position of the law relating to the amount recoverable by an employee in an action for unlawful dismissal and that the Court lacks jurisdiction to make award for monetary compensation for periods for which the Claimant did not work for the Defendant in the instant case. Counsel urged the Court to follow its earlier decision in <i>Omage v. Nairda Nigeria Limited (supra) </i>and dismiss this head of claim. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On claim for =N=10,000,000.00 as general damages for the unlawful dismissal of the Claimant, Counsel submitted that this relief as presently couched runs contrary to established judicial authorities on assessment of damages and that use of general damages is a misnormer in an action for breach of contract. Counsel referred to <i>Ativie v. Kabelmetal (Nig.) Limited (2008)10 NWLR (Pt. 1095) 399 at 425 </i>where the Court said <i>inter alia </i>that where a plaintiff succeeds in an action for breach of contract, he is not entitled to any award of damages under the general damage head of claim in addition to the damages (special) fairly or reasonably expected to arise from the breach which must have been in the contemplation of the parties. In any event, Counsel further submitted that the Claimant is under an obligation to mitigate her losses citing <i>Obasuyi v. Business Ventures Limited (2000)5 NWLR (Pt. 658) 668 </i>and that from the evidence before the Court Claimant has mitigated her losses resulting from the summary dismissal; that there is evidence before the Court that she is now gainfully employed as a Director in a company known as <i>3LCINOVATE Energy Limited </i> referring to paragraphs 13 and 14 of the statement on oath of Oladepe Amuka-Pemu and the report of search at the <i>Corporate Affairs Commission </i>on the structure of <i>3LCINOVATE Energy Limited</i>. Learned Counsel urged the Court to so hold.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Respecting Relief(g) on cost of this suit, learned Counsel submitted, citing <i>Guinness (Nig.) Plc v. Nwoke (2000)15 NWLR (Pt. 689) 135 at 150, </i>that it is unethical and an affront to public policy for a litigant to pass the burden of his Solicitor's fees to his opponent in a suit. Furthermore Counsel submitted that a claim for the cost of an action is a genre of special damages which must be specifically pleaded and proved, citing <i>SPDC (Nig.) Limited v. Okonedo (2007)All FWLR (Pt. 368) 1104 at 1137</i> and that the cost not having been specifically pleaded and proved in this case this head of claim should be dismissed. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Finally, learned Counsel prayed the Court to dismiss this case for the Defendant complied with the intent of the parties in the procedure taken leading to the dismissal of the Claimant; that the Claimant commenced this suit prematurely and that if the Court finds that the Claimant was wrongly dismissed, the measure of damages the Claimant is entitled to is only what she would have gotten had the employment been properly terminated.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">In his final written address, learned senior Counsel to the Claimant set down the following issues for determination -<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. Whether the summary dismissal by the defendant of the claimant’s employment vide the defendant’s letter dated 10<sup>th</sup> April 2014 is null, void, unconstitutional and of no effect for failure to accord the claimant her right to fair hearing as guaranteed under section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. Whether the dismissal of the claimant by the defendant is a flagrant breach of the conditions of service and code of conduct of the defendant company. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">3. Whether the claimant is entitled to salaries, emoluments and benefits from April 2014 when the claimant’s employment was unlawfully determined by the defendant until judgment is given in the case. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">4. Whether the claimant is not entitled to general damages for the unlawful termination of her employment.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Arguing issue 1, learned senior Counsel submitted that the constitutional principle of fair hearing was not followed in respect of the termination of the appointment of the Claimant; that the right to fair hearing is a fundamental one accruing to every man by reason of his humanity citing <i>Ovunwo v. Woko (2011)17 NWLR (Pt. 1277) 522 & UNTHMB v. Nnoli (1994)8 NWLR (Pt. 363) 376. </i>According to learned senior Counsel, by <i>Exh. C2 </i>the contract of employment of the Claimant shall be governed and construed in accordance with the laws of the Federal Republic of Nigeria but that by <i>Exh. C8 </i>letter of dismissal, Claimant was dismissed because of her alleged role in incidence involving dishonesty and bribery which was brought to the attention of the Defendant and was by that exhibit the accuser, the prosecutor and the Judge at the same time. Counsel submitted that by the nature of the allegation which amounted to commission of crime it must be proved beyond reasonable doubt citing <i>section 135(1), Evidence Act, 2011; </i>that <i>DW2 </i>though said the allegation against the Claimant was an act of fraud, could however not state the amount the Claimant has defrauded the Defendant and that the law is trite that he who asserts must prove same citing <i>Ojoh v. Kamalu (2005)18 NWLR (Pt. 958) 523 at 565.</i> Learned senior advocate finally submitted on this issue and urge the Court to hold that the purported summary dismissal of the Claimant by the Defendant vide the letter dated 10/4/14 is invalid, null, void, unconstitutional and of no effect for failure to accord the Claimant her right of fair hearing as guaranteed under section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Respecting issue 2, learned senior counsel submitted that the dismissal of the Claimant did not comply with the provision of <i>Exh. C7 </i>which is the <i>Disciplinary Procedure and Code of Conduct </i>of the Defendant; that no query was issued to the Claimant as expected by <i>Exh. C7</i>; that the maximum penalty under <i>Exh. C7 </i>for the offence allegedly committed by the Claimant is Final Warning and not Dismissal; that <i>DW1 </i>confirmed the fact that the Claimant was not given any notice, query or warning. Respecting the composition of the disciplinary hearing, learned Counsel submitted that there were no witnesses called to give evidence that will prove the guilt of the Claimant; that the dismissal letter was not signed by Mrs. Ibiene Okeleke, the Group Head, Human Resources and neither was she present at the disciplinary hearing as provided by the Defendant's Disciplinary Code of Conduct and the effect of all this is that there was no dismissal at all and that <i>Exh. C8 </i>is a nullity. The learned Senior Advocate submitted that termination or dismissal without recourse to the terms and conditions guiding such an employment is totally unlawful citing <i>Ifeta v. SPDC (Nig.) Limited (2006)8 NWLR (Pt. 983) 587 at 606-607, Katto v. CBN (1999)6 NWLR (Pt. 607) 405 & CBN v. Archibong (2001)10 NWLR (Pt. 721) 507. </i>Learned Counsel thus prayed the Court to hold that the dismissal of the Claimant's employment is wrongful, unlawful and of no effect being in flagrant breach of the conditions of service and code of conduct of the Defendant.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">On issue 3, it was the position of the learned senior Counsel that the dismissal of the Claimant being null and void, the Claimant is entitled to her salaries, emoluments and benefits from the date of dismissal. According to him, where the Court makes a finding that the dismissal or termination of a servant is null and void, it means there is no dismissal or termination at all and the employment of the employee will be regarded as unbroken and continuing from the period of the purported termination till date citing <i>Benue Cement Company Plc v. Ager & 1 or. (2010)9 NWLR (Pt.1199) 292 </i>where the Court of Appeal per <i>Ndukwe-Anyanwu JCA </i>said thus -<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif""> ''There is a distinction between wrongful dismissal and an invalid dismissal. A payment in lieu of notice will apply where the court makes a finding of wrongful dismissal in favour of a servant. Where, however, a court makes a finding that the dismissal or termination of a servant was null and void, there is no dismissal or termination. What the employer did was a nullity before the law. In the instant case, the termination of the employments of the respondents was null and void. In the circumstances, their employments shall be regarded as unbroken, but continuous from the period prior to their purported indefinite suspension and termination till the date of the Judgment''. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Counsel also cited <i>Ngoye v. Obat Oil and Petroleum Limited (2011)25 NLLR 265 at 266.</i> The learned senior advocate urged the Court to resolve this issue in favour of the Claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Issue 4 is whether the Claimant is not entitled to general damages for the unlawful termination of her employment. On this learned senior Counsel submitted that having established that the Claimant's contract of employment was breached by the Defendant and having also established the violation of the Claimant's right to fair hearing the question that comes to mind is whether the Claimant is entitled to damages and the quantum of same. Counsel submitted that where there is a wrong there must be a remedy citing <i>Bello v. A.G Oyo State (1986)5 NWLR (Pt. 45) 828 </i>and <i>Maiya v. Incorporated Trustees Clinton Health Access Initiative Nigeria & Ors. (2012)27 NLLR (Pt. 76) 110. </i>Counsel submitted further that the relevant exhibit is indeed <i>Exh. C2 </i>and paragraph 11.3 thereof; that with the admission in paragraphs 31 & 32 of its statement of defence and counter claim what should be asked is the quantum of damages to be awarded. Counsel stated that apart from the fact that the Claimant was not given adequate notice of termination which is itself actionable, the dismissal of the Claimant was based on an unproved criminal allegation which carries with it some stigma on her character and that Claimant is entitled to substantial damages. Counsel cited <i>British Airways v. Makanjuola (1993)8 NWLR (Pt. 311) 274 at 288</i> where the Court held that in a circumstance as in this case, the Claimant was entitled to substantial damages far beyond his salary for the period of notice required. Learned Senior Advocate of Nigeria urged the Court to resolve this issue in favour of the Claimant and to award =N=10,000,000.00 as damages in favour of the Claimant. Finally Counsel prayed the Court to grant all the reliefs sought by the Claimant against the Defendant. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">In reaction to the Claimant's final written address, the Defendant filed a 25-page reply on points of law dated and filed on 6/5/16. The issues canvassed in same are as follows: whether the summary dismissal by the Defendant of Claimant's employment vide Defendant's letter of 10/4/14 is null, void, unconstitutional and of no effect for failure to accord the Claimant her right to fair hearing as guaranteed under section 36(1) of the <i>Constitution of the Federal Republic of Nigeria, 1999; </i>(2) whether the dismissal of the Claimant by the Defendant is a flagrant breach of the conditions of service and code of conduct of the Defendant Company; (3) The Honourable Court lacks jurisdiction to declare the dismissal of an employee a nullity and (4) The Claimant is not entitled to special damages. Reply on points of law is not meant to be an opportunity to reargue a case by a party. It is specifically meant to address fresh issues of points of law raised by the other side. It is never designed to be an opportunity to take a second bite at the cherry. I note that the four issues which form the gravamen of the said reply on points of law of the Defendant are nothing short of rearguing issues already canvassed in the final written address of the Defendant. Having read same, I find no utility in including same or any part of it in this Judgment. I thus discountenance it.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">I read all the processes filed by learned senior Counsel in this case as well as the learned Counsel for the Defendant with understanding. I evaluated all the exhibits tendered, listened to and watched the demeanor of the witnesses called at trial and also attentively listened to the oral argument canvassed by the learned Counsel for either side. Having done all this, I have come to narrow the issues for the just determination of this case down to the following -<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. Whether the Defendant complied with its <i>Disciplinary Procedure and Code of Conduct Manual </i>in summarily dismissing the Claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. Whether the summary dismissal of the Claimant by the Defendant was unlawful or merely wrongful and its effect.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">3. Whether the Claimant is entitled to all or some of the reliefs sought in her <i>General Form of Complaint.<o:p></o:p></i></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">4. Whether the Defendant is entitled to its counterclaims.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">This Judgment was adjourned on 9/5/16 to 28/7/16 for delivery. As at the date of its adjournment, the date for the commencement of annual vacation of Hon. Judges of this Court had not been fixed. Subsequently however and upon fixing the date for the commencement of annual vacation, the Hon President of this Court directed that Judgments must not be fixed to fall within the period of vacation. In order therefore to ensure that this Judgment is not caught by the 90 days rule for delivery of Judgment from the date of adoption of final written addresses, I directed that hearing notices be issued and served on learned Counsel on either side for this Judgment to be delivered today. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">In an employment relationship, the parties are bound by the terms and conditions laid down as regulating the relationship and as voluntarily entered into by the parties. The terms and conditions forming the contract of service are binding on the parties <b>to</b> same. See <i>Ninaj Ho;dings Limited v. Assets Management Corporation of Nigeria (2015) LPELR-24650 (CA).</i> Such terms and conditions are usually contained in letters of employment, contract of service, staff handbook and so on. It is trite that in the presence of such documents, it is not the duty of the Court to write or re-write agreements for the parties. Rather, the duty of the Court is limited to giving meaning to the contents of the agreement between the parties. See <i>Diga v. Tony (2013) LPELR 20768 (CA). </i> Let me quickly add that the employer continues to retain the right and power to discipline its workforce. This right and power is usually exercised though issuance of Queries, Warning letters, Suspension, Termination of employment or even Summary Dismissal of an employee. See <i>Longe v. First Bank Plc (2006) LPELR-7682(CA), A.G, Kwara v. Ojulari (2006) LPELR--6151(CA) & Obaje v. NAMA (2013) LPELR-19958) (CA).</i> The only proviso is that the exercise of power in this regard must be done within the ambit of the existing contract of service voluntarily signed by the parties. <i>Exh. C2 </i>is the contract of employment voluntarily signed by the parties. In paragraph 13.1 of same, <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif""> ''The parties expressly agree that this contract constitutes the entire agreement between them save for such guidelines, manuals, policies and procedures as may be subsequently implemented or introduced by the Company. The contract replaces any and all prior letters of appointment, guidelines, manuals, policies agreements or arrangements, whether written, oral or implied, relating to the Employee's employment, the rights to and under which are hereby expressly and unconditionally waived by the parties save as expressly provided in this contract.''<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The same <i>Exh. C2 </i>had earlier in paragraph 11.3 stated that -<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif""> ''It is hereby understood that nothing shall prejudice the right of the Company to summarily dismiss an Employee without notice in the event of gross misconduct or conviction for a criminal offence, subject to the relevant procedures having been followed. The Company's grievance and disciplinary procedures shall be as set out from time to time in the Staff Handbook.''<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><i><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">Exh. C7 </span></i><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">is the <i>Disciplinary Procedure & Code of Conduct </i>of the Defendant. The procedure for disciplinary hearing is as contained on pages 13 & 14 of that exhibit. The Claimant was summarily dismissed from the employment of the Defendant by a letter dated 10/4/14 effective same day ''...based your role in the incident involving dishonesty and bribery which was brought to the attention of the company''. In paragraph 3, the letter of summary dismissal to the Claimant stated thus - <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif""> ''This action is based on Sahara Group's Code of Conduct, which prohibits any dishonesty or attempted dishonesty including conspiracy, theft, bribery, fraud or giving or misleading statements to the Company or customers or persons having dealings with the company and the penalty is dismissal''.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">I perused <i>Exh. C7 </i>and found the procedure as set out on pages 13-15 of same applicable to the Claimant. By the applicable procedure, the HR <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">i. ''shall report to the company or departmental Head concerned to write a letter to the employee advising him or her to attend a Disciplinary Enquiry''<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">ii. Departmental Head should deliver the letter to attend a Disciplinary Enquiry to the employee concerned<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">iii. the Departmental Head is to verbally explain the contents thereof to him/her including his rights set out in the document<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">iv. the employee and his representatives should be given a fair and reasonable opportunity to make representations, call witnesses and cross examine any witness called by the company representative, complainant or the panel.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The allegations against the Claimant are as contained in <i>Exh. C8. </i>Those allegations bordered on criminality. Those are allegations which only a Court of competent jurisdiction can hear and determine. Those are also allegations for which a proof beyond reasonable doubt is required. Did the Defendant follow its own Disciplinary Code of Conduct in this case? I answer that in the negative. It appeared that the decision of the disciplinary enquiry was already predetermined even before the enquiry took place. By the evidence adduced before me, the Claimant was not afforded any opportunity respecting fair hearing. I must add that quite apart from the fact that the Defendant in its Disciplinary Code of Conduct recognised and provided for right to fair hearing for any of its employees facing disciplinary enquiry, the <i>Constitution of the Federal Republic of Nigeria, 1999, as amended </i>recognised and provided adequately for the right to fair hearing in section 36 thereof. I find in this case that the Claimant, contrary to the provision of the Defendant's <i>Disciplinary Procedure and Code of Conduct</i> was denied her right to fair hearing. The <i>DW1</i> attested as much to same when she stated on oath on 3/2/16 that - <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif""> ''Defendant's Disciplinary Code of Conduct was not issued by the Defendant for fun; that written notice was not served on the Claimant to attend the Disciplinary Hearing; that in the instant allegation against the Claimant there was no need for query to be issued and served on her; that the claimant was nor served any notice containing the charges against her; that the disciplinary hearing started at about 5 pm ended at about 6.30 pm and that the letter of dismissal was issued same day at about 6.30 pm''. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Yet <i>DW2</i> also attested to the fact that the person who complained against the Claimant was not present at the disciplinary hearing. Thus, the possibility of cross examining the said complainant was not available. It is most unfortunate that the Defendant who voluntarily put in place a disciplinary procedure respecting its employees would be the one to flagrantly violate same. Perhaps the best an employer of the status of the Defendant could is to respect the rights of its employees within the framework of its own documents and established procedure. Learned Counsel for the Defendant had argued that there was a substantial compliance by the Defendant with its disciplinary procedure and code of conduct. I honestly do not understand and find it really difficult to understand what the learned Counsel meant within the context of this case. The fact remains that once there is an established procedure and in writing too, it is either there is a compliance with same or there is no compliance. If as in the instant case, there is evidence on oath of the witness of the Defendant of flagrant denial of the right to fair hearing how can the so called concept of substantial compliance be situated? I find and hold that the Defendant did not comply with its own Disciplinary Procedure and Code of Conduct <i>Manual </i>in summarily dismissing the Claimant in dismissing the Claimant. I therefore resolve issue in favour of the Claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The second issue is for determination of the status of the Claimant's summary dismissal whether it is wrongful or merely unlawful and the attaching consequences. The law remains trite and indeed settled that where an employer fails to comply with giving requisite length of notice to an employee prior to termination of employment that is wrongful. The wrongfulness is solely in failure to give notice as required. In a situation as this, the measure of damages is the payment to the employee what he would have earned had the requisite notice been given. That is, the payment for the length of notice necessary to be given under the contract or under the relevant provision of the law. On the other hand, a termination/dismissal is said to be unlawful if the employer fails to comply with its established procedure in terminating the employment of its employee.<b> </b>A scenario as this arises as in the instant case where as already found and held the employer fails to comply with its own disciplinary procedure in dealing with its erring employee. In this respect, the termination/dismissal is unlawful. The measure of damages awardable to the employee is not just the payment of what the employee would have earned during the period of notice required<b>. </b>See <i>Olufemi Amodu v. Epesok Paper Mill Limited Suit No: NICN/LA/304/2013 </i>delivered on 22/6/2016<b>. </b>Respecting the instant case, this Court has already found and held that the Defendant failed to comply with <i>Exh. C8 </i>being its <i>Disciplinary Procedure and Code of Conduct. </i>There was certainly no reason for it not to comply with same. I thus hold that the summary dismissal of the Claimant from the employment of the Defendant was unlawful for non-compliance with its disciplinary procedure and code of conduct.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Now the third issue set down for determination is whether the Claimant is entitled to all or some of the reliefs sought in her <i>General Form of Complaint. </i>What then are the reliefs sought by the Claimant? The fist relief sought is for a declaration that the summary dismissal by the Defendant of the Claimant’s employment vide the Defendant’s letter dated 10/4/14 is null, void, unconstitutional and of no effect for failure to accord the Claimant her right to fair hearing as guaranteed under section 36(1) of the <i>Constitution of the Federal Republic of Nigeria, 1999 (as amended)</i>. This Court has found that the Claimant was denied her right to fair hearing both within the Defendant disciplinary procedure and code of conduct and under the <i>Constitution of the Federal Republic of Nigeria, 1999, as amended. </i>It would seem that is as far as this Court can go on that issue. This Court will not make a declaration to the effect that the letter of summary dismissal issued to the Claimant by the Defendant is null and void. The law is relatively settled that an employer has the right to discipline its workforce. In the exercise of that power and right, it may end up being right, wrongful or unlawful. Even where it is wrongful or unlawful, the exercise of the power does not thereby become invalid. The only remedy available to an aggrieved employee is in damages the measure of which may vary. Secondly, were the Court to make a declaration of nullity respecting the letter of summary dismissal, the Court cannot certainly order a reinstatement in an employment of this nature since in any event the Court will not and cannot foist a willing employee on an unwilling employer. See <i>Adewumi v. Nigerian Eagle Flour Mills (2014) LPELR-22557 (CA)</i> & <i>UBN v. Chinyere (2010)10 NWLR (Pt. 1299) 472</i>.<b> </b>Therefore, a declaration that the summary dismissal by the Defendant of the Claimant’s employment vide the Defendant’s letter dated 10/4/14 is null, void, unconstitutional and of no effect for failure to accord the Claimant her right to fair hearing as guaranteed under section 36(1) of the <i>Constitution of the Federal Republic of Nigeria, 1999 (as amended)</i> is refused for the reasons as contained in this Judgment. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The second relief is for a declaration that the purported letter of dismissal dated 10/4/14 by the Defendant issued against the Claimant based on a feedback from customers of alleged incidence of dishonesty and bribery constituted a violation of the Claimant’s fundamental Human Rights to fair hearing as guaranteed under Section 36(1) of the Constitution of Federal Republic of Nigeria (as amended) and <i>a fortiori</i> unconstitutional, null, void and of no effect whatsoever. This relief is also refused and dismissed for the same reason respecting the refusal and dismissal of Relief 1. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The third relief sought is for a declaration that the dismissal of the Claimant’s employment by the Defendant is a flagrant breach of the conditions of service and code of conduct of the Defendant which is binding on the Defendant. This Court has found that the Defendant did not comply with its established procedure in summarily dismissing the Claimant. The disciplinary procedure and code of conduct forms part of the contract of service between the Claimant and the Defendant. It is binding on both parties. Therefore having summarily dismissed the Claimant in contravention of its conditions of service, it is declared that the dismissal of the Claimant’s employment by the Defendant is a flagrant breach of the conditions of service and code of conduct of the Defendant which is binding on the Defendant. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The fourth relief sought is for an Order setting aside the Defendant’s letter of summary dismissal dated 10/4/14 wherein the Claimant’s employment was determined. The law remains trite that the power to discipline any of its workers will continue to remain in an employer. Even when that power is unlawfully exercised, the only remedy available to the employee is to seek appropriate remedy. By issuing and serving the letter of summary dismissal on the Claimant, the Defendant was simply saying it was no longer interested in the services of the Claimant and that it was desirous of severing the relationship. To set same aside as sought by the Claimant will amount to effort at turning labour jurisprudence upside down. Once that letter of summary dismissal was served, it became effective. To set it aside will amount to foisting the Claimant - a willing employee on the Defendant - an unwilling employer. In cognisance of the foregoing the prayer for an Order setting aside the Defendant’s letter of summary dismissal dated 10/4/14 wherein the Claimant’s employment was determined is refused and dismissed for having no basis in law. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The fifth relief sought is for an Order of payment of the Claimant’s salaries, emoluments and benefit from April, 2014, when the Claimant’s employment was unlawfully determined by the Defendant until judgment is given in this case. This Court has found and held in this Judgment that by a letter dated 10/4/14, the employment relationship between the Claimant was effectively brought to an end by the Defendant, unlawfully though. There is no evidence before me to the effect that the Claimant rendered any service to the Defendant upon receipt of the letter of summary dismissal. It is the law that an employee whose appointment is terminated cannot continue to regard same as still subsisting.<b> </b>See <i>Olatunbosun v. NISER (1988) LPELR-2574 (SC).</i><b> </b>Besides, the state of the labour law in this country today does not support an employee or an ex-employee being paid for services not rendered<b>. </b>See <i>Olatunbosun v. NISER (1988) LPELR-2574 (SC), Co-Operative Bank Nigeria Limited v. Nwankwo (1993)4 NWLR (Pt. 286) 170 & New Nigerian Newspaper Limited v. Atoyebi (2013) LPELR-21489 (CA)</i>. I find no basis for this claim. The Claimant also did not adduce concrete evidence as to why she should be paid all her salaries and allowance from 2014 when she was summarily dismissed till the date of Judgment. The prayer for an order of payment of the Claimant’s salaries, emoluments and benefit from April, 2014, when the Claimant’s employment was unlawfully determined by the Defendant until judgment is given in this case is refused and dismissed for having no support in both law and equity. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The Claimant also prayed for the sum of Ten Million Naira (=N=10,000,000.00) as general damages for the unlawful dismissal from her employment by the Defendant and breach of Claimant’s contract of employment. Respecting this claim, learned Counsel to the Defendant had submitted that the use of the expression ''general damages'' was a misnormer in an action for breach of contract and that on the authority of <i>Ativie v. Kabelmetal (Nig.) Limited (2008)10 NWLR (Pt. 1095) 399 </i>a claim for general damages for breach of contract of employment is grossly misconcieved as same has no basis in any statutory or judicial authority and that the <i> </i>entitlement of the Claimant even if the Court finds in her favour is limited to what she would have earned if the requisite notice had been given.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">It is important to always bear in mind the circumstances leading to the institution of this suit. For I believe that the issue at stake is beyond just mere termination of employment or summary dismissal. The state of the law remains the same that where there is a wrong there must be a remedy. <i>Ogbolosingha & Anor. v. Bayelsa State Independent Electoral Commission Suit No: 165/2013 delivered on 20/2/15.</i> What are the wrongs, if any, committed against the Claimant in the instant case? Yes, the employment of the Claimant was unlawfully brought to an end. Agreed, an employer has the right to terminate the employment of its worker. It is in evidence and it is part of the finding of this Court that the Defendant was in breach of its <i>Disciplinary Procedure and Code of Conduct</i>. It is in evidence that the constitutional right of the Claimant to fair hearing was abridged by the Defendant. Added to all this is the fact that the allegations leveled against the Claimant were of weighty nature bordering on crimes. It is doubtful if it can be hardly contested that a wrong has been done to the Claimant in the circumstances of this case. By virtue of its inherent jurisdiction to do justice to all manner of individuals and bodies who seek remedies for wrong done to them, this Court is bound to provide some form of succor to the Claimant. The position as canvassed by the learned Counsel to the Defendant respecting measure of damages is certainly not the position of the law as at today in this country. In a recent decision of this Court <i>Kanyip, PJ </i>in <i>Olufemi Amodu v. Epesok Paper Mill Limited Suit No: NICN/LA/304/2014 </i>delivered on 22/6/16 having reviewed all judicial authorities on the subject such as <i>Baba v. Nigerian Civil Aviation Training Centre (1986)5 NWLR (Pt. 42) 514; Nigerian Arab Bank Limited v. Shuaibu (1991)4 NWLR (Pt. 186) 450; UTC v. Mokoruku (1993)3 NWLR (Pt. 281) 295; Agbo v. CBN (1996)10 NWLR (Pt. 478) 379</i> and <i>Katto v. CBN (1999)6 NWLR (Pt. 607) 390 </i>concluded that ''...the rule appears to be that damages cannot be awarded for the manner of dismissal of an employee''; that all these cases predated the <i>National Industrial Court Act, 2006</i> and the <i>Constitution of the Federal Republic of Nigeria, 1999 (Third Alteration) Act, 2010</i> and that the cases which insist on the measure of damages in termination/dismissal being restricted to only payment in lieu of notice typify the stance of common law on the matter, a position that is not only rigid but harsh as well a position which Equity seeks to ameliorate.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Now, with the emergence of the <i>National Industrial Court Act, 2006 </i>and the <i>Constitution of the Federal Republic of Nigeria, 1999 (Third Alteration) Act, 2010 </i>labour jurisprudence in this country has moved forward. Respecting this, sections 13, 14 and 15 of the <i>National Industrial Court Act, 2006 </i>are germane. I deem it necessary to reproduce them for clarity as follows - <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif""> ''Subject to this Act, in every civil cause or matter commenced in the Court, law and equity shall be administered concurrently''<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Section 14 states thus -<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif""> ''The Court shall, in the exercise of the jurisdiction vested in it by or under this Act in every cause or matter, have power to grant, either absolutely or on such terms and conditions as the Court thinks just, all such remedies whatsoever as any of the parties may appear to be entitled to in respect of any legal or equitable claim properly brought forward by the Court so that, as far as possible, all matters in dispute between the parties may be completely and finally determined and all multiplicity of legal proceedings, concerning any of those matters avoided''.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Finally section 15 provides that -<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif""> ''Subject to the express provisions of any other enactment, and in all matters not particularly mentioned in this Act in which there was formerly or there is any conflict or variance between the rules of equity and the rules of common law with reference to the same matter, the rules of equity shall prevail in the Court so far as the matters to which those rules relate are cognisable by the Court''. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">All these are further reinforced by the <i>Constitution of the Federal Republic of Nigeria, 1999 (Third Alteration) Act 2010 </i>when it gave additional fillip to section 7(6), <i>National Industrial Court Act, 2006 </i>and provides in section 254C(1)(f) giving jurisdiction to this Court over international best practices in labour, employment and industrial relation matters. From the foregoing analysis of the state of the law coupled with the facts of this case, I find and hold that the summary dismissal of the Claimant by the Defendant and the reasons given carries with some stigma which entitles the Claimant to substantial damages far beyond the payment of salary in lieu of notice. The allegation for the summary dismissal of the Claimant by the Defendant was one bordering on dishonesty and bribery. That allegation was not proved nor evidence adduced on the culpability of the Claimant in the alleged incidence. Even at the disciplinary hearing, the alleged complainant was not called. The Defendant more or less constituted itself into the accuser, the prosecutor and the Judge all at the same time. The age old right to fair hearing was violently abridged. Unfortunately, the Defendant also found it difficult to follow its own laid down procedure for disciplining its workforce. I find wrong committed against the Claimant to which the available remedy must not be limited to mere payment in lieu of notice. May the day never come when the Court will be helpless to those who approach it for succor See <i>British Airways v Makanjuola. See also Olufemi Amodu v. Epesok Paper Mill Limited per Kanyip, PJ.<b><o:p></o:p></b></i></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">The next consideration is the quantum of damages to be awarded the Claimant. In <i>British Airways v. Makanjuola </i>the appellate Court confirmed the award of two years' salary as damages to the aggrieved former employee. Also in <i>Olufemi Amodu v. Epesok Paper Mill Limited, </i>a most recent decision of this Court, 2 years' salary was awarded by <i>Kanyip PJ </i>as damages/compensation for wrongful dismissal of an employee. It appears, from the available authorities, that two years salary is judicially recognised and accepted as far as damages in situation as this. In the circumstance, I award damages/compensation to the Claimant to the tune of her 2 years' salary. The employment of the Claimant was summarily terminated on 10/4/14. I have no evidence before as to her pay slip or last salary as at that date. However <i>Exh. C3 </i>dated 28/7/12 contains the 2012 Annual Salary Review of the Claimant. That exhibit put the Claimant's annual remuneration at Three Million, Five Hundred and Forty Four Thousand, Eight Hundred and Eighteen Naira (=N=3,564,818.18) only. This means that the Claimant is entitled to be paid the sum of Seven Million, One Hundred and Twenty Nine Thousand, Six Hundred and Thirty Six Naira and Thirty Six Kobo (=N=7,129,636.36) only as damages and I so hold. <o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Claimant also applied for Cost of this suit. The argument of learned Counsel to the Defendant is that awarding cost of action is contrary to public policy. In this respect, learned Counsel would seem to have likened the cost sought to the Claimant asking to be reimbursed for her Solicitor's fees. The position and the argument canvassed by learned Counsel is a misconception. The relief sought by the Claimant is simply for cost of action rather than for Solicitor's professional fees. The law is trite and generally accepted too that cost usually follows event. See <i>Wema Bank Plc & Anor. v. Alaran Frozen Foods Agency Nigeria Limited & Anor. (2015) LPELR-25980. </i> The Rules of this Court also allows the award of cost to any deserving party. It is thus not out of place for a successful party especially to ask for cost as reimbursement of some of the expenses incurred in a suit he has successfully contested. I award the sum of =N=100,000.00 as cost of this suit to the Claimant payable by the Defendant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The last issue for determination is whether the Defendant is entitled to its counterclaims. The Defendant sought two major counter claims against the Claimant. They are as follows -<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. A declaration that the Claimant’s contract of employment was properly and effectively terminated upon delivery of the letter of summary dismissal on 10<sup>th</sup> April, 2014; and<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. The cost of prosecuting the instant action on a full indemnity basis.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">This Court has held in this Judgment that the summary dismissal of the Claimant by the Defendant was unlawful. With that finding and holding, the declaration sought that the Claimant’s contract of employment was properly and effectively terminated upon delivery of the letter of summary dismissal on 10/4/1 4 is refused and dismissed. This declaration having been refused there is no basis upon which the cost sought can be awarded. Same is thus refused and dismissed as well.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment -<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. The prayer for a declaration that the summary dismissal by the Defendant of the Claimant’s employment vide the Defendant’s letter dated 10/4/14 is null, void, unconstitutional and of no effect for failure to accord the Claimant her right to fair hearing as guaranteed under section 36(1) of the <i>Constitution of the Federal Republic of Nigeria, 1999 (as amended)</i> is refused for the reasons as contained in this Judgment. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. The prayer for a declaration that the purported letter of dismissal dated 10/4/14 by the Defendant issued against the Claimant based on a feedback from customers of alleged incidence of dishonesty and bribery constituted a violation of the Claimant’s fundamental Human Rights to fair hearing as guaranteed under Section 36(1) of the Constitution of Federal Republic of Nigeria, 1999 (as amended) and <i>a fortiori</i> unconstitutional, null, void and of no effect whatsoever is refused and dismissed.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">3. The prayer for an Order of payment of the Claimant’s salaries, emoluments and benefit from April, 2014, when the Claimant’s employment was unlawfully determined by the Defendant until judgment is given in this case is refused and dismissed for having no basis in law and equity.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">4. The Defendant is ordered to pay the sum of Seven Million, One Hundred and Twenty Nine Thousand, Six Hundred and Thirty Six Naira and Thirty Six Kobo (=N=7,129,636.36) only being two years salary to the Claimant as damages/compensation for the unlawful dismissal from her employment by the Defendant and breach of Claimant’s contract of employment.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">5. The 2 counter claims sought by the Defendant are refused and dismissed.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">6. Cost in the sum of One Hundred Thousand Naira (=N=100,000.00) is awarded in favour of the Claimant and payable by the Defendant.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align: justify;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">All the terms of this Judgment shall be complied with within the 30 days from today.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:12.5pt; line-height:115%;font-family:"Times New Roman","serif"">Judgment is entered accordingly. <o:p></o:p></span></p> <p class="MsoNormal" align="center" style="text-align:center"><u><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif""> </span></u></p> <p class="MsoNormal" align="center" style="text-align:center"><u><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif""> </span></u></p> <p class="MsoListParagraphCxSpFirst" align="center" style="margin-left:0in; mso-add-space:auto;text-align:center"><span style="font-size:12.5pt;line-height: 115%;font-family:"Times New Roman","serif"">____________________<o:p></o:p></span></p> <p class="MsoListParagraphCxSpLast" align="center" style="margin: 0in 0in 0.0001pt; text-align: center;"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Hon. Justice J. D. Peters<o:p></o:p></span></p> <p class="MsoNormal" align="center" style="margin-bottom: 0.0001pt; text-align: center;"><span style="font-size:12.5pt;font-family: "Times New Roman","serif"">Presiding Judge<b><o:p></o:p></b></span></p>