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JUDGMENT This action was commenced by way of complaint dated and filed on the 25th day of November 2016. The case involves the claims of the Claimant against the Defendant and the Defendant’s counter claim against the Claimant. In the Claimant’s Complaint, he sought the following reliefs: 1. A Declaration that the purported dismissal of the Claimant having been done contrary to Section 36 of the Constitution of the Federal Republic of Nigeria is in breach of the Claimant’s right to fair hearing and it is therefore unlawful. 2. An Order directing the Defendant to pay the Claimant the sum of N15,000,000 as general damages for unlawful dismissal. 3. An Order directing the Defendant to pay 10% of the judgment sum from the date of judgment till the final liquidation of same. 4. The refund of the sum of N750,000 unlawfully deducted from the Claimant’s account. 5. Cost of suit being N1,500,000. 6. And for such orders this court may deem fit to make. In the Defendant’s statement of defence and counter claim, the following reliefs were sought against the Claimant: i. A Declaration that the summary dismissal of the Claimant was lawful. ii. A Declaration that the Claimant’s unlawful diversion and conversion of the sum of N900,000 being money meant for ATM to his personal use was ignoble, illegal and criminal. iii. An Order of court mandating and compelling the Claimant to refund the sum of N150,000 only being the balance of the money fraudulently diverted from the Defendant. iv. An Order for the Claimant to pay the sum of N2,500,000 solicitors fee. v. Damages in the sum of N30,000,000 vi. Interest at 21% per annum Pleadings were duly exchanged and hearing commenced on the 6th day of November 2017. The Claimant testified for himself as CW1. One Mrs. Eshumobi Ashenedu an employee of the Defendant testified on behalf of the Defendant as DW1. Hearing ended on the 7th day of November 2011 and parties were ordered to file final addresses. These were filed accordingly and subsequently regularized and adopted on the 25th day of April 2018. CLAIMANT’S CASE The Claimant testified as the only witness in his case. The case of the Claimant, as contained in his statement of facts and evidence, is that he was employed by the Defendant as a Relationship Officer vide an appointment letter dated 10th December 2008. His employment was confirmed after 6 months’ probation period. Since the date of his employment and up to the date of his disengagement, there was no complaint made against his conduct or professional capabilities. Sometime in 2015, he was orally told by the branch manager not to come to the office again. His purported dismissal or redundancy was a personal vendetta by some “powers that be” in the Defendant company to bring another person on board. The Claimant was sick sometime ago and the Defendant abandoned him and never gave him medical care. The Defendant rather deducted the sum of N750,000 from his personal account, purportedly as refund of a loss suffered by the Defendant due to the Claimant’s conduct. The Claimant tendered his employment and confirmation letters in evidence. These are Exhibits A and B respectively. Exhibits C and D were tendered through the Claimant during cross examination. These documents are a police report and the Claimant’s bank account statement. DEFENDANT’S CASE The facts averred by the Defendant in defence of the Claimant’s suit and in support of the counter claims are that the Claimant was employed as an Executive Trainee on probation vide a letter of employment dated 11th December 2008. The Claimant converted the sum of N900,000 meant for the Defendant’s Kabba branch ATM for his personal use. The Claimant then reported himself to his Supervisor, Mrs. Eshumobi Ashenedu where the Claimant also made confessional statement admitting to have unlawfully converted the money to his personal use. The Claimant’s action amounted to gross misconduct and it was referred to the Disciplinary Committee of the Defendant who, in its report dated 7th January 2015, recommended summary dismissal of the Claimant in line with the Defendant’s HR Dismissal Process and Sanctions Policy. The Claimant came back to pick up his dismissal letter dated 9th January 2015 but he refused to acknowledge it. The sum of N750,000 was deducted from the Claimant’s account by the Defendant in its efforts to recover the sum converted by the Claimant. The Defendant was not aware of the alleged ill-health of the Claimant or the alleged abandonment by the Defendant. The act of the Claimant was reported to the Kabba Divisional Police Station who investigated the complaint. The Defendant however did not pursue criminal case against the Claimant because of the plea of the Claimant’s relatives who also undertook to refund the money converted by the Claimant. The Claimant’s relatives were advised to pay the money into the Claimant’s UBA account for ease of recovery by the Defendant. The result was the deduction of N750,000 from the Claimant’s account leaving a balance of N150,000 yet to be paid by the Claimant till date, despite repeated demands. Upon being served the originating process in this suit, the Defendant briefed a counsel who charged professional fee of N2,500,000. The Defendant has made part payment of N2,000,000 leaving a balance of N500,000 to be paid at conclusion of this case. The Defendant’s witness is one Mrs. Eshumobi Ashenedu. She gave evidence in line with these facts pleaded by the Defendant and also tendered a number of documents in evidence. They are respectively admitted as Exhibits E, F, G, H, J, K and K1. Exhibit L was tendered from the bar by the Defendant’s counsel pursuant to the order of court and admitted in evidence. Upon the close of evidence, counsel to the parties filed their respective final written addresses and same were adopted on 25th April 2018. FINAL WRITTEN ADDRESS OF THE DEFENDANT In the final written address of the defendant filed on the 24th day of November 2017, learned counsel for the Defendant, Paulyn Abhulimen Esq. formulated two issues for determination to wit: 1. Whether from the totality of evidence adduced by the Claimant, the Claimant was able to discharge the evidentiary burden on him as to entitle him to the claims and reliefs sought in this suit. 2. Whether by the pleadings cum the unchallenged evidence of the Defendant before this Honourable court and circumstances of this case the Claimant's dismissal was not in accordance with the Defendant Group Staff Handbook as well as The Group Human Resource Disciplinary Process and sanctions Policy. On Issue One, learned counsel for the Defendant submitted that the Claimant has the evidential burden of proving his case and is to succeed on the strength of his own case and not on the weakness of the Defendant’s case. Counsel placed reliance on Section 136 of the Evidence Act and the cases of OKI vs. OKI (2001) 13 NWLR Pt. 783 Pg. 89 at 105 & ATUANYA vs. ONYEJEKWE (1975) 3 SC Pg. 161, TEXACO OVERSEAS (NIG) PET. CO. UNLTD. vs. RANGK LTD (2009) All FWLR Pt. 494 Pg. 1535 Paras E-G amongst other decided cases to further buttress this point. Counsel submitted further that the Claimant’s dismissal is in breach of the said terms and conditions of the Claimant's employment with the Defendant as seen in the case of AIGUOKHIAN vs. THE STATE (2004) 7 NWLR (Pt. 873) Pg. 565. Counsel further recalled that the Claimant had admitted being in charge of the ATM from where there was a cash shortage and also that he was the cash officer of the said business office of the Defendant situate at Kabba in Kogi State and as such it could be inferred that the Claimant had knowledge of the events that led to his being summarily dismissed. Further, counsel urged that the Claimant's claim that he was caught by surprise when sometime in 2015 he was stopped verbally by the Defendant from coming to work and/or entering his office should be discountenanced Counsel also submitted that the Claimant who claimed importance of his dismissal by the Defendant did not inquire why he was stopped from entering the office premises from January 2015 till he brought this suit. According to counsel, the evidence of the Defendant in defence of this suit was neither controverted, nor discredited by the Claimant in the course of the cross-examination of the DW1. See ABAH vs. OWEI (2015) All FWLR Pt. 780 Pg. 1343 @ 1379 Paras D – E; OLALOYE vs. AG AND C.J OGUN STATE (2015) All FWLR Pt. 774 Pg.37 @ 37, Paras A; OKOROCHA vs. PDP (2015) All FWLR Pt. 789 Pg. 530 @ 566 Para A. Counsel went on that the Claimant in the course of the cross examination failed to cross-examine the defence witness on a number of issues deposed to in the Defendant's Witness Statement on Oath. Citing the authority of OLUDAMILOLA vs. STATE (2010) 8 NWLR (Pt. 1197) Pg. 565 @ 580 Paras C-D Pg. 583 Paras A-B; ERISIA-EKE vs. ORIKOHA (2010) 8 NWLR (Pt. 1197) Pg. 421 @ 448 Para E, counsel submitted that the failure of the Claimant to cross examine the DW1 on the facts as deposed to in DW1's Statement on oaths unequivocally means that the Claimant has admitted the facts as deposed in the said paragraphs and cannot by law invite the Court to disbelieve the Defendant on those facts. Counsel urged the court to resolve issue one in favour of the Defendant. On Issue 2, counsel submitted that the relationship that existed between the Claimant and the Defendant was contractual and that parties are bound by the terms of their contract. In the case of AFRICAN INTERNATIONAL BANK LTD vs. INTEGRATED DIMENSIONAL SYSTEM LTD & ORS (2012) LPELR - 9710 SC, the Supreme Court held that Parties are bound by the Contract they voluntarily entered into and cannot act outside the conditions contained in the said contract. In the same vein neither of the parties can alter nor read into a written agreement a term which is not embodied in it. It was held in CANNITEC INTERNATIONAL COMPANY LTD vs. SOLEL BONEH (NIG) LTD (2017) 10 NWLR (Pt. 1572) Pg. 1-170 at 66 SC @ P. 81 PARA. C that “For a valid contract to exist there must be an offer and acceptance which ought to be sealed by a consideration.” The question arises whether the Defendant in dealing with the Claimant acted within the terms of her contract with the Claimant. In resolving this query, counsel referred to the case of N. P. A vs. AHMED (2017) 12 NWLR (Pt. 1578) Pg. 1-168 P. 75 where the Court of Appeal held that parties and courts are bound by the terms of the contracting parties. Learned counsel for the Defendants placed reliance on Exhibit 'A' tendered by the Claimant particularly the last paragraph of page 2 and submitted that from the provision of the Offer of Employment and the fact that the Claimant confessed in the presence of his supervisor Miss Ashenedu Esumobi (DW1) and two (2) other superior officers which facts are not in contest in this suit, counsel referred the Court to the Exhibits J and G arguing that the Group's Disciplinary Process and Sanctions Policy outlined what amounts to gross misconduct in the Defendant's entire office nationwide. Counsel reproduced Paragraph 17.3.2 of the Group's Disciplinary Process and Sanctions Policy and submitted that the acts of the Claimant fall within the purview of Gross Misconduct and the Defendant was right to have dismissed him summarily in accordance with the Defendant's Group’s Disciplinary Process and Sanctions Policy and urged the court to so hold. It was the further submission of counsel that from the above analysis vis- a-vis the Exhibits tendered before the Court it is clear that the Defendant in dismissing the Claimant did not act outside the provisions of Exhibit G and J. According to counsel, the dismissal of the Claimant cannot be said to have violated the terms of the Claimant's employment by the Defendant and counsel urged the Court to so hold. Counsel argued that the Defendant can still summarily dismiss anyone found guilty of Gross Misconduct by implication such as not allowing the person into her premises. Counsel relied on the case of OPUO vs. NNPC (2014) 14 NWLR (Pt. 734) Pg. 552. BORISHADE vs. N.B.N LTD (2007) 1 NWLR (Pt. 1015) 217 @ Ratio 2. See also UNION BANK OF NIGERIA LTD. vs. OGBOH (1995) 2 NWLR (Pt. 380) 647. Counsel urged the court to resolve issue 2 in favour of the Defendant. Relying on the case of ODOFIN &. ORS vs. MOGAJI & ORS (1978) NSCC at page 275, counsel urged the court to resolve the two issues in favour of the Defendant and dismiss the Claimant's case with substantial cost while granting in its totality all the claims of the Defendant made by way of a Counter-Claim. CLAIMANT’S FINAL WRITTEN ADDRESS In the final written address of the Claimant filed on the 18th day of December 2017, learned counsel for the Claimant, Enenche Akoja, submitted the following issues for determination: 1. Whether the purported dismissal of the Claimant was lawful. 2. Whether the Claimant is entitled to the claims contained in the statement of claim. On Issue 1, learned counsel for the Claimant cited the case of OLUSOLA LUPO vs. ROYAL EXCHANGE ASSURANCE NIGERIA PLC AND ROYAL EXCHANGE FINANCE AND INVESTMENT LTD (2015) 54 NLLR (PART 183) 33H NIC, And submitted that in the case at hand, none of these conditions were met before the dismissal, and that the conflicting stories of the Defendant on how the alleged offence was disclosed are not to be considered in any way. In continuation, counsel submitted that Paragraph (3) of the same judgment describes what amounts to Fair Hearing and that a query was issued to the employee which he responded to before he was dismissed by the employer. Counsel submitted that in the instant case, no such query was issued to the Claimant. Counsel cited the case of SOFEKUN vs. AKINYEMI (1980) F.N.L.R. 184 where the Supreme Court held that the charge was a crime and by Section 22 (2) of the 1963 constitution (equivalent of Section 33 of the 1979 Constitution and Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), only a 'Court' could try the applicant. Counsel argued that the panel was not seized with jurisdiction to charge, try or find him guilty of a misconduct that is criminal in nature. The above decision was aligned with in the case of FEDERAL CIVIL SERVICE COMMISSION vs. LAOYE (1989) 2 NWLR (Pt. 106) 652. Counsel argued that the detailed information on employee offences and the sanctions grid are as contained in the Group's Disciplinary Process and Sanctions Policy (Exhibit G) and that a look at Exhibit G stipulates that the Chief Inspector shall immediately suspend any staff (irrespective of level) on issues of fraud and questionable integrity pending investigation (page 13 paragraph 9.1 Column 4). Pages 12 and 13 of Exhibit G contain the name and role of parties to the disciplinary process. Counsel submitted that this was not complied with as the sole witness of the Defendant and the two other persons who sat as the body that decided the fate of the Claimant are not in any place prescribed by Exhibit G. According to counsel, the evidence before the Court and the case itself has shown that the Defendant has failed in her defence. He urged the court to uphold the claims of the Claimant. On Issue 2, learned counsel for the Claimant submitted that the answer to the above issue is in the affirmative, as the Claimant is entitled to all his claims as contained in the Statement of Claims having attained the standard required by law of him to prove his case. It was also the submission of counsel that the defence failed to meet the requirement of the law by not complying with Order 15 Rule 1 (e) of the National Industrial Court of Nigeria (Civil Procedure Rules) 2017 and Section 84 of the Evidence Act, 2011 which deals with computer generated evidence as all the computer generated document tendered as evidence were not accompanied by the certificate of compliance required. According to counsel, all the exhibits tendered by the Defendant were not frontloaded, which counsel interpreted as a deliberate act on the part of the Defendant to spring surprise and ambush the Claimant in the course of trial. Counsel prayed the court to expunge all the exhibits tendered by the defence, and find in favour of the Claimant and declare the act of the Defendant unlawful, null and void. DEFENDANT’S REPLY ON POINTS OF LAW On the 19th day of February 2018, counsel for the Defendant filed a reply on points of law wherein counsel submitted that the Claimant failed to prove that the Defendant was in breach of its obligation towards him. In reply to paragraph 4.1 and 4.2, of the Claimant's final written address, counsel for the Defendant submitted that the Claimant was aware of his terms of employment with the Defendant and which the Claimant did accept in good faith. Further, counsel argued, citing Exhibit A that it is trite in law that terms of a contract must be determined prior to or at the time of creating the contract. See ADEDOYIN vs. AFRICAN PETROLEUM PLC (2014) 11 NWLR (Pt. 1419) 415 (CA) FALOUGHI vs. FIRST IMPRESSION CLEANERS LTD (2014) 7 NWLR (Pt. 1406) 335 at 369 paras F-G. It was the submission of Counsel that the Claimant who voluntarily and being under no legal disability accepted his offer of employment by the Defendant with the attendant terms and conditions in the full knowledge of his rights under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) can simply in law be said to have completely and entirely waived his rights as enshrined in the said constitution as canvassed in the case of EZE vs. OKECHUKWU & ORS (2002) 18 NWLR (Pt. 799) Pg. 348. Counsel urged the court to hold that the Claimant's terms of employment and Group's Staff handbook which were made known to the Claimant before his employment does not contravene the provisions of the 1999 Constitution (as amended). In response to the Claimant’s argument in paragraphs 4.5 and 4.6 of his final written address, the Defendant maintained that admissibility of documents under cross-examination is permissible. See IPINLAIYE II vs. OLUTOKUN (1996) 6 NWLR (Pt. 453) 148 at 169, Para. H. Counsel submitted that Exhibit C only gives credence to the confession of the Claimant. See EKANG vs. STATE (2001) FWLR (Pt. 68) 1123 (CA). Counsel submitted that Exhibit C was pleaded and relevant to the facts and circumstances of this case. It was never contradicted by the Claimant, and it was never denied. It is therefore conclusive and is set to determine the culpability of the Claimant's claim. Counsel urged the court to so hold. Counsel added that the Claimant would have raised objection to the bank if he did not consent to the deduction of the money from his account. Placing reliance on the authority of DUNALIN INV LTD vs. BGL PLC (2016) 18 NWLR (Pt. 1544) 246 at 340 and urged the court to discountenance the objection of the Claimant as it was not applicable in the circumstance and hold that the Exhibits referred to above are relevant and admissible in line with the combined provisions of the Evidence Act (as amended) and extant Case Law. Counsel contended that modern day administration of justice frowns at technicalities at the expense of substantial justice as was the position of the Court in CHEVRON (NIG) LTD vs. ADERIBIGBE (2012) 4 NWLR (Pt. 1289) 1 @ 16 D. To this point counsel invoked the provisions of Section 12(2)(b) of the National Industrial Court Act which allows for the Court to deviate from the provisions of the Evidence Act in the interest of justice. Counsel urged the court to discountenance the objections of the Claimant and admit Exhibits D, E, F, G, H, J, K and K1 in evidence as the documents were pleaded, they are relevant and admissible and they would assist the Court tremendously in determining the real issues before the Court. Counsel submitted that Exhibit E has passed the admissibility test as provided for by the Evidence Act and that the piece of evidence discussed in paragraph 6.2 is in compliance with Section 89 (d) of the Evidence Act (as amended). Counsel added that the Exhibit in question is not a public document and therefore does not fall within the ambit of Section 104 of the Evidence Act (as amended). Counsel urged the Court to discountenance the said objection of the Claimant as it is irrelevant in this case. COURT’S DECISION Before I proceed to determine this case, let me first resolve some preliminary issues. On 16th April 2018, the Defendant’s counsel was absent from court but sent a letter seeking for adjournment. The Claimant’s counsel drew the attention of the court to the fact that the adjournment was the 3rd one at the instance of the Defendant. The Claimant’s counsel also prayed for cost of N50,000.00. The court awarded cost of N50,000.00 against the Defendant. On 25th April 2018 when the matter came up for adoption of final written addresses, the Defendant’s counsel, Paulyn Abhulimen Esq., prayed the court to vacate the order for cost. Counsel argued that a letter was written to the Claimant’s counsel on 13th April 2018 and a call was also put across to him informing him of the inability of the Defendant’s counsel to be in court on the day the order for cost was made. In response, learned counsel for the Claimant, Mr. Ekoja Esq., submitted that the circumstance resulting to the award of cost was the presence of counsel from the chambers of the Defendant’s counsel in court to deliver the letter and motion without appearing in court to move the motion. The Claimant’s counsel did not deny the allegation of the Defendant’s counsel that he had previously been informed both in writing and through a phone call that the Defendant’s counsel will not be able to attend court on 16th April 2018. That is to say the allegation of the Defendant counsel is true. If that is the case, I think it is honourable for the Claimant’s counsel to have informed the court of the prior information and concede to the adjournment instead of asking for cost. The order for cost was made upon application for it by the Claimant’s counsel even though the court granted same taking into account other considerations. I have examined the entire circumstances surrounding the order for cost made by this court on 16th April 2018 and I see reasons to vacate that order. I, accordingly, so order. In his final written address, the Claimant’s counsel raised objection to the admissibility of the documents admitted in evidence as Exhibits C, D, E, F, G, H, J, K and K1. Counsel’s grounds of objection are these: Exhibits C and D were not frontloaded and thus their introduction during hearing contradicts Order 15 Rule 1. Exhibit D, the Claimant’s statement of account, is not admissible because there is no certificate attached contrary to Section 84 of the Evidence Act. That Exhibit E, the confessional statement, is a computer printout and not frontloaded. Exhibit E was also written by unknown person with the name of the Claimant and not addressed to any particular person. That Exhibit F is a computer printout; it is not certified and there is non-compliance with Section 84 of the Evidence Act. That Exhibit G is not the original document and no foundation was laid. It is not also frontloaded and not properly certified. That Exhibit H is not tendered through the maker. That Exhibit J is not certified and it is a computer printout but no certificate of compliance is attached. It is also not frontloaded. That Exhibit K and K1 were not frontloaded and they are computer generated documents. I have looked at these documents. I find that they were pleaded by the Defendant. They are also very relevant to the determination of this case. The fact that some of them were not frontloaded is not a condition or material for their admissibility. Let me make a quick reference to a recent decision of the apex court on this issue. It is the case of DUNALIN INVESTMENTS LTD. vs. BGC PLC & ANOR (2016) 18 NWLR (Pt. 1544) 262; wherein their Lordships held that even though parties to an action are bound by the Rules of Court, nevertheless, it is the Evidence Act and not the Rules of court that governs the admissibility of evidence. They further pointed out that there is no provision of the Evidence Act that states that a Document which is not frontloaded is inadmissible. It was held that the trial court’s rejection of the pleaded and potentially vital document because it was not frontloaded was wrongful and would cause a miscarriage of justice. I am bound by the decision of the Apex court. I will therefore admit the documents in evidence. This court will however determine what weight to attach to each of them when determining the case. I therefore overrule the objections of the Claimant’s counsel. On 7/1/2017, the court ordered the Defendant’s counsel to produce the complete copy of the disciplinary committee report referred to in paragraph 6 of the statement of defence and tender same from the bar. This was done on 19/2/2018. The document produced is titled “Internal Memo” seeking approval to disengage staff listed in the memo. The document was produced with a certificate of compliance with Section 84 of the Evidence Act. The Claimant’s counsel submitted that he will not object to the document because it is not a disciplinary committee report. On that basis, and most importantly on the basis that the court suo motu ordered the production of the document, the court admitted it in evidence and marked it as Exhibit L. On 25/4/2018 during adoption of written addresses, the Claimant’s counsel argued that he would not have objected to the document except that it is not the report the court ordered the defence to produce. He urged the court to reject the document. Let me first point out that the document was admitted in evidence without objection from the Claimant’s counsel. Besides, the court on the 7th day of November 2017, ordered counsel for the Defendant “to produce the complete copy of the disciplinary committee report referred to in paragraph 6 of the Statement of Defence.” Secondly, whether it is titled report or memo, it is the content which will indicate its object. I have examined the content of the document and I see that it contains summary of allegations against some employees, infractions committed by them and recommendations for sanctions. The content of the document relating to the Claimant is what the Defendant pleaded in paragraph 6 of the statement of defence. The document is pleaded and it is relevant to the determination of this case. The Claimant’s counsel is overruled. I hold that the document is admissible. I have reviewed the case of the parties and it is my view that the duty of this court at this stage is to examine the claims in line with evidence adduced to see who among the parties have been able to prove the claims sought in this case. From the facts, it is not in dispute that the Claimant was an employee of the Defendant. It is evident in reliefs 1 and 2 sought by the Claimant that he founded his case on the allegation of unlawful dismissal from the employment of the Defendant. I find this claim curious however. The reason is that the Claimant had maintained, in his evidence, that he was not dismissed. In his statement of facts and evidence, the Claimant averred that he went to the office sometime in 2015 but he was told orally not to come to work again. The Claimant also referred to the action of the Defendant as “purported dismissal”. When he was cross-examined by the Defendant’s counsel, the Claimant said he was not dismissed by the Defendant but only stopped from entering the Kabba business office since 14th January 2015. Clearly, the Claimant has not alleged a dismissal from the employment. Why then make a claim for unlawful dismissal in this case? Be that as it may, the fact that the Claimant has been dismissed from the employment appears not to be in dispute. The Defendant has pleaded categorically that the Claimant was summarily dismissed from the employment. The Defendant tendered Exhibits F and H in evidence to establish the fact that the Claimant had been dismissed. These are the Defendant’s approval for the dismissal of the Claimant and the dismissal letter respectively. The Claimant himself has said he was told not to come to the office again and he was no longer allowed into the office. It is clear that the Claimant was dismissed. Having found that the Claimant has actually been dismissed, the next issue to consider is whether the dismissal was unlawful as claimed by the Claimant. The unlawfulness the Claimant attached to his dismissal as seen in relief 1 appears to be that he was not given fair hearing. The learned counsel for the Claimant submitted in his arguments in support of issue one of his address that the Claimant was not given a query or fair hearing before he was dismissed from the employment. Although the Claimant pleaded in paragraph 7 of the statement of fact that the Defendant did not set up a forum to clarify issues or give the Claimant audience to defend himself, these averments were not contained in the Claimant’s witness statement on oath which is his evidence in this matter. There is no evidence at all adduced by the Claimant to support the allegation of lack of fair hearing pleaded by him. It is trite that facts pleaded but no evidence was adduced in proof of same goes to no issue and must be disregarded by the court. See TEXACO OVERSEAS PETROLEUM UNLTD vs. OKUNDAYE (2003) FWLR (Pt.155) 665 at 679; OKORONKWO vs. COOPERATIVE AND COMMERCE BANK (NIG.) PLC (2003) FWLR (Pt.154) 457 at 491. Therefore, I find that the Claimant did not make out any case for lack of fair hearing before he was dismissed. Let me mention in passing that allegation of lack of fair hearing is not the material factor to found a claim of wrongful dismissal in an employment of master and servant employment. In master and servant employment, as in this case, what determines the wrongfulness of a termination of the employment is if there is any breach of the terms or procedure in the contract of employment. It was on this notion the Supreme Court held in OSAKWE vs. NIGERIAN PAPER MILL (1998) 7 SCNJ 222 at 231 that the terms and conditions of the contract of employment are the foundation for a claim for wrongful termination of the employment and not on the basis of lack of fair hearing. Therefore, wrongfulness of termination cannot be founded on lack of fair hearing when a case had not been made out for any breach of the terms and conditions of the employment. It is a known principle in a master and servant employment that the employer has the right to terminate the employment or dismiss the employee at any time and with or without a reason. See TEXACO NIG. PLC vs. KEHINDE (2002) FWLR (Pt. 94) 143 at 160. The termination or dismissal can only be wrongful when contrary to the condition of service. Therefore, where wrongful termination of employment or dismissal from employment is alleged, the terms of a contract of service are the foundation in deciding whether the dismissal or termination was wrongful. That is to say allegation of wrongfulness of dismissal must be founded on the terms of the condition of service. Therefore, in an action for a declaration that a dismissal is wrongful, the employee must plead and prove the following facts: i. That he was employed by the defendant, ii. The terms and condition of his employment, iii. who can appoint and remove him, iv. The circumstances under which his appointment can be terminated, v. The procedure for termination or dismissal, vi. The manner in which the termination of his appointment or dismissal breached the said terms and conditions of his employment. See PETROLEUM TRAINING INSTITUTE vs. MATTHEW (2012) All FWLR (Pt. 623) 1949 at 1967; W.A.E.C vs. OSHIONEBO (2007) All FWLR (Pt. 370) 1501 at 1512; ZIIDEEH vs. RIVERS STATE CIVIL SERVICE COMMISSION (2007) All FWLR (Pt. 354) 243. Therefore, in order to convince this court that his dismissal was unlawful or wrongful, the Claimant must plead and prove the circumstances under which he can be dismissed; the procedure for dismissal under the condition of service and the manner in which his dismissal breached the terms and conditions of his employment. Upon going through the case of the Claimant, it is observed that he did not bring his case within the condition of service. He did not allege that the dismissal offended any provision of the condition of service or that any terms of the condition of service was breached in his dismissal. He did not even refer to the condition of service. The only complaint he made about the dismissal in his evidence is that it was a “personal vendetta” against him. This allegation does not qualify for the proof required from the Claimant. I find that the Claimant has failed to relate his dismissal to a breach of the conditions of his employment. The consequence is that the Claimant has failed to prove the allegation of unlawful or wrongful dismissal. On the other hand, the Defendant pleaded the facts that the Claimant converted the sum of N900,000 meant for the Defendant’s Kabba branch ATM for his personal use, an act which amounted to gross misconduct, and the Claimant was dismissed summarily by the Defendant in accordance with the Defendant’s Group HR Dismissal Process and Sanctions Policy. DW1 also gave evidence on these facts. The Defendant pleaded the Disciplinary Committee report dated 7th January 2015 and the Defendant’s Group HR Dismissal Process and Sanctions Policy. These are Exhibits F (or L) and G respectively. Exhibit G is the Defendant’s Group HR disciplinary process and sanction policy dated June 2010. In Section 12 of the document, the sanctions which the Defendant may apply to erring staff include dismissal. The infractions which could attract dismissal were stated in Section 15.1.1 to include conversion, misapplication or misappropriation of the assets of the Group or customers. Section 15.2 of the Policy also provided that summary dismissal may be slammed on a staff without recourse to the Disciplinary Committee if the staff, among others, made confessional statement in a case of gross misconduct. What constitutes gross misconduct is stated in Section 17.3.2 to include theft, authorized possession of company property, fraud or fraud related offences. It is clear from the provisions of Exhibit G set out above that the Defendant is empowered in the contract of employment to dismiss any of its staff summarily where the staff made a confessional statement in allegation of having committed act of gross misconduct. Gross misconduct that could attract summary dismissal includes theft, authorized possession of company property, fraud or fraud related offences. Exhibit F is the last page of Exhibit L. Exhibit L is the complete document. They are one and same document. This exhibit is an internal memo of the Defendant dated 29th December 2014 for approval to disengage staff listed in the memo. The Claimant is number 8 in the list. Infractions he was alleged to have committed are cash theft, conversion, misappropriation of assets of the Group or customers. The Claimant was recommended to be dismissed based on his confessional statement. That is to say the Defendant dismissed the Claimant summarily based on his confessional statement and the allegations against him include theft, conversion and misappropriation. These are fraud related allegations. The said confessional statement of the Claimant is Exhibit E. The Defendant pleaded in paragraph 5 of the statement of defence that the Claimant reported himself to his supervisor, Mrs. Eshumobi Ashenedu and he made confessional statement admitting to have unlawfully converted the money to his personal use. The Claimant filed a process he titled “Response to the Defendant’s statement of defence and counter claim”. This process is supposed be a reply to the Defendant’s statement of defence but it’s content is not better than a written argument. All the paragraphs therein contain arguments, submissions and presumptions. If the Claimant had meant the said process to be a pleading, it ought to contain only pleadings/ statements of facts. Order 30 Rule 3 of the NICN Rules 2017 provides for what pleadings should contain: (1) Every pleading shall contain a statement in summary form of the material facts on which the party pleading relies for the party’s claim or defence, as the case may be, but not the evidence by which they are to be proved…” (2) -------------------------- (3) -------------------------- (4) The facts shall be alleged positively, precisely, and distinctly, and as briefly as is consistent with a clear statement. It is the rule of pleading that parties do not plead arguments but facts. See ADDISON UNITED LTD vs. LION OF AFRICA INSURANCE LTD (2010) FWLR (Pt.542) 567. The Claimant’s said process contravenes the rules of pleadings. I cannot accept the arguments and presumptions contained therein as a reply to the allegations of the Defendant in the statement of defence. The Claimant’s “Response to the Defendant’s statement of defence and counter claim” is accordingly struck out. The result of the foregoing is that the facts pleaded in paragraph 5 of the statement of defence have not been controverted by the Claimant. Besides the fact that the Claimant’s reply to statement of defence is incompetent, the Claimant did not even specifically traverse the fact alleged by the Defendant in paragraph 5 of the statement of defence that the Claimant made a confessional statement. The Claimant did not deny making the confessional statement. Therefore, it appears to me true that the Claimant actually made the confessional statement in Exhibit E. The content of the confessional statement reads: “CONFESSIONAL STATEMENT ON ATM SHORTAGE OF N900,000. I, Dada Johnson Segun made away with ATM sum of N900,000 from the ATM of Kabba Business office. Dada Johnson signed The incidence happened on Tuesday 16, 2014. I have been having sleepless night since then. The money was meant for loading. Dada Johnson A10402 signed. By his statement in Exhibit E, the Claimant admitted stealing the sum of N900,000.00 from the Defendant’s ATM in the Kabba Business office which money was meant to be loaded into the ATM. The act the Claimant admitted to have done amounted to gross misconduct under the Defendant’s HR Dismissal Process and Sanctions policy. Going by the terms and condition in Exhibit G, the confession of the Claimant is sufficient ground for him to be dismissed summarily by the Defendant. Consequently, I hold that the Claimant’s dismissal by the Defendant was not wrongful or unlawful Relief 2 of the Claimant is for payment of the sum of N15,000,000 as general damages for unlawful dismissal. The consequence of the Claimant’s failure to prove that his dismissal was unlawful or wrongful is that this claim automatically also fails. The Claimant also claimed for refund of the sum of N750,000.00 which the Defendant unlawfully deducted from his account. The Claimant’s case in respect of this claim is that sometime ago, the Defendant deducted the sum of N750,000.00 from his personal account, purportedly as refund of a loss suffered by the Defendant due to the Claimant’s conduct. The evidence of the Claimant reveals that he is aware of the purpose or reason the Defendant deducted the said sum from his account. The Defendant averred that the sum of N750,000.00 was deducted from the Claimant’s account in the efforts to recover the sum of N900,000.00 converted by the Claimant. The Claimant’s relatives undertook to refund the money converted by the Claimant and they were advised to pay the money into the Claimant’s UBA account for ease of recovery by the Defendant. The Defendant subsequently deducted the sum of N750,000.00 from the Claimant’s account, leaving a balance of N150,000.00 yet to be paid by the Claimant. The Claimant’s statement of account is Exhibit D. It discloses that on 31/12/2014, the sum of N750,000.00 was debited from Claimant’s account as “recovery from Dada Johnson for shortage of ATM 1”. The Claimant, in his confessional statement whose content I reproduced earlier, admitted stealing the sum of N900,000.00 meant to be loaded into the Defendant’s ATM. The Claimant is thus indebted to the Defendant to the sum of N900,000.00 which he is obligated to pay back to the Defendant. The Defendant is therefore right to have deducted the sum of N750,000.00 from the Claimant’s account in part recovery of the converted sum. In fact the Claimant still has the balance of N150,000.00 to pay to the Defendant. The Claimant’s claim for refund of the sum deducted from his account has no merit. The Defendant is entitled to recover the balance of N150,000.00 from the Claimant. The Defendant contended that it briefed a counsel to represent it in this case and out of the professional fee of N2,500,000, the Defendant has made part payment of N2,000,000 leaving a balance of N500,000 to be paid at conclusion of this case. The Defendant consequently claimed the sum of N2,500,000 from the Claimant. The fee agreed between the Defendant and its counsel is a private arrangement. The Claimant was not part of it neither can the Claimant be made to bear the fee expended by the Defendant in getting legal representation in this case, a case in which the Defendant itself is a counter-claimant. I cannot grant this relief. The Defendant claimed for the sum of N30,000,000.00 from the Claimant as damages for hardship and financial trauma caused by the act of the Claimant. In her evidence, DW1 said in paragraph 23 of her deposition thus: “I know that the defendant has counter claimed against the claimant for incurring huge expenses/loss and unimaginable hardship foisted on the defendant as a result of the claimant’s ignoble action”. What DW1 said in her evidence is that she knows that the Defendant has counter claimed for damages. It is not her evidence that the Defendant actually suffered the alleged damages. The evidence of DW1 is not sufficient proof of the Defendant’s claim for damages. The result is that the Defendant’s allegation that it suffered damages has not been proved. The Defendant’s claim for damages is not grantable in the circumstance. In conclusion of this judgment, I find the Claimant’s case unmeritorious. The Claimant’s case is dismissed. As for the Defendant’s counter claims, they succeed partly. Reliefs 1, 2 and 3 and are granted. Reliefs 4 and 5 are dismissed. Relief 6 is refused. Parties are to bear their respective costs. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Judge