JUDGMENT. On 20th November 2017, the claimant in this suit took out a general form of complaint against the defendant seeking for the reliefs sated hereunder:- 1. A DECLARATION of this Honourable court that the letter of termination dated 2nd August, 2017 ref. no AEDC/HR.34/970/2017 issued by the defendant to the claimant purportedly terminating the claimant’s Employment as a staff of Abuja electricity distribution company plc, is wrongfully, illegal, unconstitutionally, null and void and of no effect whatsoever. 2. AN ORDER of this Honourable court setting aside the purported termination for being perverse and contrary to the rules of Natural justice, equity and good conscience. 3. AN ORDER of this Honourable Court mandating the defendant to pay to the claimant all his emoluments and entitlements outstanding from the date of the said offending suspension in the sum of N299,839.99 per month being the current monthly salary of the claimant from 2nd day of August, 2017 until judgment is delivered in this suit. 4. AN ORDER OF INJUNCTION restraining the defendant, its servants, agent assigns, privies, representatives, staff or any other person or persons of whatsoever designation acting on behalf or behest of the defendant, from preventing the claimant from performing any functions and duties of his office or interfering with the employment of rights, privileges and benefits accruing thereto. 5. The sum of N40,000,000 being General Damages against the Defendant for wrongful termination of employment and breach of contract of employment and breach of contract of employment by the defendant. 6. The sum of N5,000,000.00 (Five Million Naira) being cost of prosecuting this suit. Upon being served with the general form of complaint and its accompanying processes, the defendant with the leave of court granted on 9/4/18 filed memorandum of appearance, statement of defence and counter-claim out of time. In the counter claim the defendant/counter claimant is seeking for the following reliefs. They are:- 1. A declaration that the termination of the Claimants employment by the defendant’s letter dated 2nd of August, 2017 after observing its procedures in accordance with the Defendant’s 2015 Rules and Regulation HR policies and procedures is right and lawful. 2. An order of injunction restraining the claimant, his agent, assigns, privies, representatives, or servants or persons of whatsoever designation on behalf of the Claimant from entering the defendant’s office anywhere for any purpose whatsoever except at the behest of the defendant. 3. The sum of N10,000,000.00 (Ten million Naira) only as general damages against the Claimant for the untold losses the claimant caused the defendant by breaching the rules of the defendant while he was an employee. 4. The sum of N2,000,000.00 (Two Million Naira) only being the cost of defending this suit. THE CASE FOR THE CLAIMANT The claimant testified for himself as (CW1) and in the course of the trial tendered 20 exhibits marked as CW1A – CW1T1-16. In his testimony in chief, CW1 stated that at all time material to this suit, he was a senior staff of the defunct Power Holding Company of Nigeria, tasked with generation and distribution and regulation of electricity within Nigeria. Following the enactment of power sector reform Act of 2005, the defendant replaced Power Holding Company of Nigeria as the major distribution company in the North-Central Region of the Federation. In the transition from Power Holding Company of Nigeria to the defendant a substantial number of staff were disengaged as the defendant narrowed down the staff to the most competent and experienced lot, a category which the claimant deservedly fell under. The claimant was then issued a letter of employment dated 30th April 2014 with reference no. AEDC/HR/1651`/05/2014, stipulating the terms of employment of the claimant in service of the defendant. The letter was tendered and admitted as exhibit CW1A1-2 the claimant as from the date of his employment been diligent, dexterous, honest and committed staff of the defendant and has not been found wanting in any regard. The claimant stated that he is a supervisor (Comm. Services) with staff number 501773, Lokoja Area office, kogi state area of the Defendant. On the 26th day of January, 2017, the claimant received exhibit CW1E, a letter dated 25th January, 2017 from the office of the chief internal Auditor, demanding for explanation as regards allegations made against the claimant by several customers for fraudulent practices. Vide exhibit CW1F, the claimant immediately responded to the said letter comprehensively and also attached exculpatory document thereto. On 26/4/17 exhibit CW1G, a query with ref. no. AEDC/HR.34/322/2017 dated 26th April, 2017 was issued to the claimant in respect of the same subject matter, he diligently responded to the same. The claimant responded to the query vide exhibit CW1H, a letter dated 5th may 2017. To the claimant in the said query of 26/4/17, the defendant found him guilty of fraudulent practice contrary to section 3.3.30 of the defendant’s rules and regulations even though he has not been tried and convicted by any court of law. The defendant also alleged that the claimant demanded and collected the sum of N12,000.00 (Twelve Thousand Naira) only, from one ASP Anape Fidelis before allocating account no. 92-1806-8190-01 to him. It was also alleged that the claimant collected the sum of N10,000.00 (Ten Thousand Naira) from another customer of the defendant before capturing the customer’s house. Notwithstanding the shock as to why frivolous allegations were levelled and sustained against him. The claimant promptly responded to the query of 26/4/17 vide exhibit CW1H. The claimant also stated that as at 2nd August 2017 when exhibit CW1M, termination of appointment memorandum of the defendant was issued, the rules and regulations of the defendant which was used in termination of appointment of the claimant was not in operation as it was yet to be signed. According to the claimant exhibit DW1D, reference AEDC/HR.30/999/2017 dated 16/8/17 notifying the Managing Director of the defendant about the signing of the rules and regulations is to take place on 25/8/17 is a clear proof of non-signing of the rles as at the time of termination of employment. The claimant stated further throughout the period of investigation, no oral, documentary or real evidence substantiating the allegations was presented to the claimant. Furthermore, neither ASP Enape Fidelis nor Godspower Friday, who were identified as the accusers/complainants against the claimant, were never called to interface or be confronted by the claimant on the allegations levelled against the claimant. In further exculpatory circumstances, Mr. Godspower Friday vide exhibit CW1P, a letter addressed to the manager of the defendant dated 25th May, 2017, wherein he admitted owing outstanding bills accruable to his account with the defendant and exhibited evidence of compliance. Furthermore, vide exhibit CW1Q, a letter addressed to the chairman of the investigation committee of the defendant, dated 15th June 2017, Godspower Frday, stated that he did not give the claimant any money. Vide exhibit CW1K, a letter dated 8th may, 2017, the defendant placed the claimant on a two-month interdiction which took effect from 11th may, 2017 – 10th July, 2017, premised on same subject matter. The claimant was reinstated into the service of the defendant vide exhibit CW1L a letter dated 11th July, 2017 The claimant received a letter ref.no. AEDC/HR.34/970/2017 dated 2nd August, 2017, from the defendant terminating his long standing employment with the defendant premised on the allegation made against him by some of the customers of the defendant. Consequent upon the wrongful termination of the claimant’s employment, in a letter dated 11th August, 2017, exhibit CW1N, the claimant rejected termination of his appointment and urged the defendant to review the Ad-Hoc Disciplinary Report which wrongfully found him responsible for violating Defendant’s Company Rules. However, the Defendant has remained adamant. The claimant engaged the law office of Ola Olanipekun, SAN & Co. to demand for a review of the Ad-Hoc Disciplinary Report and a letter of Demand ref. no. PC/MISC/1/17, dated 6th September, 2017, exhibit CW1R, was written to the defendant, who till date have refused to review the said report. The claimant averred that the conduct and acts of the defendant have been very unfair, oppressive and carried out in bad faith to humiliate and discredit the claimant and rubbish his reputation. Under cross-examination CW1 testified that: he was employed after privatization by Abuja Electricity Distribution company on probation, for 6 months, thereafter he was given permanent appointment. Witness read exhibit CW1B. he also testified that he appeared before disciplinary committee. But, did not know, know Mr. Osayi. There was no any other document apart from employment handbook. CW1 stated that he is not aware of any. He saw the report of the disciplinary committee. The claimant was surprise to be confronted by the HR, ASP Enape has no meter, ASP Enapes account is 92-1806-8181-01, an account number not meter number of Fidelis Enape as it is evidently shown in the physical bill and not 92-1806-8190-01. I asked for the section 3330 quoted by the admin man, he said he has never seen such a document. I went to the regional office they did not know it. I went to Nigerian Electricity Employees Union they said they never had that document. We had meeting with union on Lokoja they said they do not have it. The labour leaders said there is a document AEDC that is coming up with without the participation of the union. What they put did not meet the international labour standards and it was rejected, that they had to dialogue with the union and company. It was signed into law on 25/8/17. At the time I was sacked there was no such document.it is only employee handbook which was given to me THE CASE FOR THE DEFENDANT The defendant called one witness Mr. Joseph Adeniyi, who testified as DW1, for and on behalf of the defendant. DW1 after identifying witness statement on oath adopted same as his testimony in this matter. DW1 then identified exhibits CW1A1-2, CW1B, CW1C1-4, CW1E, CW1F, CW1G, CW1K, CW1L, CWIM, which were as well pleaded in the statement of defence. DW1 also tendered exhibits DW1A1-42, CWB and DW1D, which were pleaded in the statement of defence. DW1D. DW1, stated that the claimant was employed by the defendant as per exhibit CW1A and his employment terminated on 2/8/17 and one month salary in lieu of notice was paid to him. The chief Auditor of the defendant demanded for explanations from the claimant via exhibit CW1E a query dated 26/4/17. The Policies and procedures which was already in operation as at April 30th 2015 when the claimant’s confirmation letter was issued to him and which he subscribed to, was issued to claimant. The claimant was confronted with allegations in the letter of 25/1/17 and the claimant responded. This culminated into administrative process that led to the Audit report of 4/4/17, exhibit CW1C, in which recommendation 6 sought that the claimant be disciplined in line with company policy. The query issued to claimant was to give him opportunity to show his innocence with respect to the matters indicated in the previous letters of exculpation and issues raised in the query and not to declare him guilty of any allegation. The defendant aver that before August 2017 the defendant is using rules and regulations known as 2015 AEDC company rules and regulation HR. At every stage of investigation, the claimant was updated by the ad hoc committee set up on 6/6/17 to investigate the claimant. The defendant denied being in possession of a letter alleged to be from Godspower Friday, it is only known to claimant. The claimant was interdicted and reinstated in line with rules which did not allow interdiction to be beyond two months and not because investigation had been completed. The ad hoc committee reaches to all concerned. On counter claim. It was stated that the claimant was disciplined in accordance with rules of the defendant. The termination of claimant’s employment was done in line with 2015 rules and regulations HR policies and procedures of the defendant. The claimant was issued demand letter, query letter interdiction letter reinstatement letter and termination all in compliance with the rules and regulations of the defendant. The acts of the claimant and his allies that led to the termination of his employment cost the defendant over N100,000,000.00 (One Hundred Billion Naira) in losses. Under cross-examination, DW1 testified that he joined the services of the defendant on 1/6/15. DW1 stated that the claimant joined the defendant before me. I have never worked in lokoja. I met the claimant in court. The appointment of the claimant was terminated because of dereliction of duty by collecting N10,000.00 and N12,000.00. I was not a member of the disciplinary committee. I did not speak to Mr. Friday Godspower. I did not speak to ASP Enape Fidelis, the defendant did not tell me anything been submitted of a report to the management after the conclusion of their assignment, at page 74 of exhibit DW1B has no reference to collection of money, as per page 66 there is no where stated that Godspower gave money to claimant. I will not be surprise if Godspower demand giving N10,000.00 to claimant. Exhibit CW!B read, CWD is the handbook. It will not be correct to say exhibit CW1D regulate the employment of the claimant. What regulates the claimant employment is AEDC regulation 2005 the date of signing is not with me. Exhibit DW1D is the correct rules and not rules based on which claimant’s appointment was terminated. CW1M, the claimant was terminated with effect from 2/8/17 and based on policy thed defendant is using before the termination i.e 2015 policy. Exhibit CW1C1-4, the employee handbook referred to this exhibit is CW1D. The document that show he collected is a report of committee. THE REPLY TO STATEMENT OF DEFENCE AND DEFENCE TO COUNTER CLAIM. In the further witness statement on oath filed on 13th April 2018, which the claimant adopted as his evidence in reply to statement of defence and defence to counter claim. CW1 stated that vide exhibit CW1N, he rejected his purported termination of employment and the one month salary in lieu of notice. In the course of revenue assurance exercise of the defendant, no scintilla of evidence was presented against him. And the ad hoc committee never confronted him with either ASP Enape Fidelis or Godspower Friday his purported accusers to ascertain whether the duo indeed gave him N10,000.00 and N12,000.00 or any other sums of money whatsoever for any reason. It was also stated that one of the accusers was purportedly spoken to via telephone and from the record, he never said he gave him money. Pages 67 to 72 of the ad hoc committee report containing interaction with Godspower nowhere he stated that he gave claimant N10,000.00. The claimant further stated that paragraph 2 of internal auditor’s demand letter of 25/1/17 is not supported by the report of the ad hoc committee as the report shows that one ASP Anape Fidelis owner of CRMD NO. 130910 dated 30/11/10 with account number 92/18/06/8181-01 never alleged in the presence of Mrs. Osakwe or any other person that he demanded and collected the sum of N12,000.00 before accepting to capture him for billing. He also stated that he responded to query promptly and it was forwarded by the Area manager to the Regional Manager in Lokoja and to Director Corporate Services received on 11/5/17 by Head Human Resources and Administration. He was interdicted before his response to query was treated. The employee handbook is the document containing rules and regulations, policies and procedures of the defendant as it relates to my employment. The 2015 rules and regulations is different from the Employee handbook referred to in the defendants letter of 30/4/15 and 15/7/15. In the said employee handbook there is no section 3.3.30. the ad hoc committee shielded my accusers despite my readiness and willingness to confront them. The claimant did not reach out to all necessary persons in its investigation. He has not had interaction with his accusers during or after the investigation. According to CW1, his ordeal started when his supervisor Mrs. Osakwe Ukamaka Joy, pre-listed over 500 different account bills for closure under the cover of untraceable/demolished account bills, with Godspower Friday’s name included. When I refused to process them, because there are many that are traceable. It was because I raised alarm to handwritten bills that she staged the trump of allegations against me. CW1 enumerated the bypassed bills. THE SUBMISSION OF THE DEFENDANT. WHETHER OR NOT, PURSUANT TO THE TERMS OF THE CLAIMANT’S EMPLOYMENT WITH THE DEFENDANT, THE CLAIMANT’S EMPLOYMENT WAS VALIDLY TERMINATED The defendant submits that in determining forms of contract of employment, the supreme court in COMPTROLLER GENERAL OF CUSTOMS & ORS V GUSAU (2017) LPELR – 42081 (SC) PER KEKERE-EKUN, J.S.C Pp. 30-31, PARAS F-B, CBN V IGWILO, OLAREWAJU V AFRIBANK NIG. PLC 2001 LPELR- 2573 (SC) HELD THAT the following are the three categories of contract of employment we have in our laws I. Master and servant II. Servant holding an office at the pleasure of the employer; and III. Employment with statutory flavor And that the EXHIBITS CW1A 1-2 and CW1B are the bedrock of the claimant’s employment with the defendant, and that whenever any question arises with respect to a contract of employment, the document constituting the contract of employment shall guide its resolution. And that all that the employer needs to show is that the allegation or misconduct was disclosed to the employee. According to counsel the claimant in this case was given the opportunity to know and defend the allegation against him it is also the submission of counsel that a master can terminate the appointment of the servant without giving any reasons and his motive is an irrelevant consideration. OFORISHE V NIGERIAN GAS CO. LTD (2017) LPELR – 42766 (SC) P.21, PARAS E-F PER RHODES-VIVOUR, JSC AND NWOBOSI V AFRICAN CONTINENTAL BANK LTD (1995) LPELR – 2121 AND that a notice of four (4) weeks is required from either party prior to exit, with option of payment in lieu of notice… as indicated in the paragraph 5 in EXHIBITS CW1B. it is submitted that the defendant has fulfilled his part of the terms governing the termination of employment as contained in his agreement with the claimant, CW1 opined that the allegation against him by the defendant was termed “fraudulent” and he was supposed to be referred to security agency for investigation, and that the position of the law does not support the opinion of the claimant. The law is trite that the court cannot impose an employee on an unwilling employer and that an order of reinstatement can only be made if the employment is with statutory flavor. Counsel urged the court to discountenance the prayers of the claimant, dismiss his suit and grant the counter claims of the defendant. THE SUBMISSION OF THE CLAIMANT/DEFENDANT TO COUNTER CLAIM. ISSUE ONE WHETHER THE TERMINATION OF THE EMPLOYMENT OF THE CLAIMANT BY THE DEFENDANT IS WRONGFUL AND PERVERSE. The claimant submitted that after the defendant alleged that the claimant has been engaging in collecting illegal fees for registration/enumeration of customers within his area of coverage, the claimant responded to the demand of the defendant on the 26th January, 2017 via exhibit CWIF 1-6, the claimant submitted that he wasn’t confronted with his accusers, nor evidence in support of the allegation against him before a query issued to him by the defendant, he further submitted that the query that found the claimant guilty of fraudulent practice contrary to section 3.3.30 of the defendant’s rules and regulation, the claimant perused through the entire employee handbook Exhibit CWID but saw no provision such as 3.3.30. the claimant employment was terminated based on the AEDC COMPANY RULES & REGULATIONS HR policies and procedure) and not the employee handbook, the defendant also issued a notice for signing of the said AEDC RULES AND REGULATION & PROCEDURAL RULES 14 days after the claimant’s termination on the 2nd August, 2017, The claimant submitted that none of the accusers stated or said he gave the claimant money for any reason whatsoever and that all these pieces of evidence were not controverted or tested under cross-examination as the defendant failed to contradict the evidence adduced by the claimant, and that although accused of fraudulent practices, the defendant did not lodge any complaint to law enforcement agencies like the police, EFCC etc so that he can be prosecuted if investigation reveals his culpability, and that the defendant claimed that it suffered untold losses caused by the claimant including N100,000.000 and there is no iota of evidence adduced at the trial to establish the claims, and urged the court to find and hold the termination of employment of the claimant is wrongful and perverse. ISSUE TWO WHETHER PURSUANT TO RESOLUTION OF ISSUE 1 ABOVE, THE SAID TERMINATION SHOULD BE SET ASIDE FOR BEING PERVERSE AND CONTRARY TO THE RULES OF NATURAL JUSTICE, EQUITY AND GOOD CONSCIENCE. The claimant submitted that the law is trite that an administrative body saddled with the task of acting in quasi judicial capacity is required to ensure that every party to the dispute is given an opportunity to state his case. Each party must know the case being made against him and given an opportunity to react thereto. On this contention counsel relied on the case of Gyang V COP, Lagos state (2014) 3 NWLR (pt. 1395) page 547 @ page 567, paragraphs B-E. On the test for determining far hearing counsel placed reliance on the cases of MPAMA V FBN PLC (2013) 5 NWLR (Pt.1395) 176, BARIGHA-AMANGE V ADUMEIN (2016) 13 NWLR (PT.1530) 349. Counsel submitted the claimant was denied opportunity to be present throughout the proceedings and hear all the evidence against him. He was also not given opportunity to cross-examined or otherwise contradict all witnesses that testify against him. It is the submission of counsel that the ad hoc committee has no jurisdiction to try allegation of crime. This can only be done by a competent court of law. The claimant was found guilty by the ad hoc committee of fraudulent practices by ad hoc committee that has no constitutional power to do so. The claimant was not afforded opportunity of knowing evidence against him neither was such evidence called in his presence. To buttress this contention counsel referred to pages 45-46 of exhibit DW!B, the ad hoc committee report the claimant was asked question he gave answers and was asked to excuse the committee in order to interview Mrs. Osakwe and he was called back and asked questions. Counsel urged the court to hold that principle of natural justice was breached. In AGBITI V NOGERIA NAVY (2011) 4 NWLR (Pt.1236) it was held that the person whose conduct is the subject of inquiry should have an opportunity of knowing what evidence has been given against him and to challenge hostile witness. In SPDCN LTD V AJUWA (2015) 14 NWLR (Pt.1480) 403, it was held that judicial, quasi judicial administrative bodies are bound to observe rules of natural justice in the performance of their duties. ISSUE THREE WHETHER THE CLAIMANT IS ENTITLED TO THE RELIEFS SOUGHT The claimant submitted that the defendant has contended that in his final written address that the employment of the claimant was regulated and terminated under the AEDC RULES and REGULATION and not under the Employee Handbook And that there is no evidence before the court that the above terms of the contract of employment was complied with by the Defendant, that no notice was given to the claimant neither is there any evidence that the claimant was paid money in lieu of that notice as contemplated by EXHIBIT CW1C 1-4 And that in EXHIBIT CW1B which indicates the 4th paragraphs to the rules and regulation of the defendant’s was not dully complied with and submitted that it is a flagrant breach of the terms of employment contract and lack of fair hearing in dealing with the claimant and urge the court to grant their claims as prayed. It is submitted the employee handbook referred to in exhibits CW1B and CW1C is the only document pursuant to which claimant’s employment can be terminated by the defendant. It is the submission of counsel that the defendant failed to comply with the procedure and sanctions provided in the employee handbook and undertook a voyage of creating a nonexistent document which he referred to as section 3.3.30 AEDC Rules and regulations upon which they based the termination of the claimant’s employment. Counsel contended this is flagrant breach of terms of employment contrary existing between the claimant and the defendant for which the claimant is entitled to general damages. Counsel also contended that the interdiction of claimant as per exhibit cW1K was done before his response to the query was treated. COURT’S DECISION. I have carefully considered all the processes filed in this suit as well as the submission of counsel for and against their respective positions. From the processes filed in this suit and the evidence adduced, it is apparent that the main grouse that led the claimant to file this suit is as encapsulated in exhibit CW1N. For proper appreciation the content of the said exhibit is hereto reproduced: Maikano Alhassan, C/O AEDC Lokoja, Area Office, Kogi state. 11th August 2017. The Managing Director/CEO Abuja Electricity Distribution Company, Headquarters, Abuja. Dear Sir. RE: TERMINATION OF APPOINTMENT. With reference to your letter dated 2nd August 2017. AEDC/HR.34/970/2017. I am Maikano Alhassan, Supervisor (CS) with staff number 501773. On 4th May 2017 I received a query dated 26th day of April 2017 alleging that I demanded and collected the sum of N12,000.00 (Twelve Thousand Naira only) from ASP Enape Fedelis before allocating account number 92-1806-8190-01 to the customer of which it has been already allocated to another customer and another N10,000.00 (Ten Thousand Naira). I promptly replied on the 5th May to that effect that I have never demanded nor collected any money from such customers. Shockingly, yesterday 10th August 2017, I was informed that I have a letter from the corporate Headquarters and before I would be allowed to receive the latter, I had to submit my ID card and complete an exit form, which I refused. I was however much later prevailed upon and compelled on the threat of insubordination, to submit my ID card and complete the exit form whereupon I was given the letter which turned out to be letter of termination of appointment. I hereby state that I have worked diligently and honestly for our company and do not know anything about the allegation listed in the letter as the reason for the termination of my appointment. I was never confronted with my accusers who never knew me in the first place. This is a clear case of victimization of a trusted and diligent staff. Accordingly, sir, I very respectfully reject the termination of my appointment and the offer to pay me one month salary to me, in lieu of notice. I urge you to review the facts in my reply and procedure leading to the termination of my appointment and afford me opportunity to be confronted with my false accusers as that was not done during the ad-hoc investigation team. Yours Faithfully, SGN Maikano Alhassan. Supervisor (CS) 08036280901/08120051111. It is patently clear from the content of exhibit CW1N, reproduced above that the claimant was not happy with way and manner the disciplinary proceeding against him was conducted by the ad-hoc disciplinary committee set up to try him for the allegation level against him by some customers of the defendant. This shows that the claimant is alleging breach of doctrine of natural justice. It is also apparent from the evidence adduced before the court that the claimant seems to be making the case that the allegation of fraudulent practices leveled against him is criminal in nature, therefore an ad-hoc disciplinary committee does not have power to try him for commission of crime. It is only a court of competent jurisdiction that can try and sanction him. Above all, according to the claimant, the Policy and Procedure rules and regulation 2015, which the defendant use to take disciplinary action against him is not in operation when his employment was terminated vide letter dated 2/8/17. According to the claimant the said rules was signed on 25/8/17 after his termination of appointment. In Nigeria there are three categories of contract of employment recognized. They are:- 1. Those regarded as purely master and servant 2. Those, where a servant is said to hold office at the pleasure of the employer 3. Those, where the employment is regulated or governed by statute, often referred to as having statutory flavor. See OLANIYAN V UNIVERSITY OF LAGOS (1985) 2 NWLR (PT.9) 599, OLAREWAJU C AFRIBANK (NIG.) PLC (2001) 13 NWLR (PT.731) 691, CBN V IGWILLO (2012) 1 NLLR 1 @ 20. An employee is a person who has entered into, or works under a contract of employment. A contract of employment on the other hand, means, any agreement whether oral or in writing, express or implied, whereby one person agrees to employ another as a worker and that person agrees to serve the employer as a worker. See SCC V AFROPAK NIG. LTD (2008) ALL FWLR (PT.426) 1827, IYERE V BENDEL FEEDS AND FLOUR LMILLS LTD (2009) ALL FWLR (PT.453) 1217 @1233, see also section 91 of the Labour Act. It is to be noted that the relationship between an employer and his employee is generally to be found in the service agreement or letter of employment. See INTERNATIONAL DRILLING CO. NIG. LTD V AJIJOLA (1979) 1 ALL NLR 117 @130. Therefore, it is trite that where an employee alleged wrongful termination/dismissal from service he has the onus of proving the contract of service which is the bedrock upon which an aggrieved employee may have found his case, if he succeeds or fails on the terms thereof, since it has not been alleged that the contract employment had statutory flavor, the parties would be bound to comply with the conditions of service otherwise any action taken to bring to an end to the claimant’s employment would be wrongful. From the evidence presented in this suit, it is without any doubt that the relationship between the claimant and defendant is that of a mere master and servant. In which case the master has unfettered right to terminate or even dismiss claimant. The motive of exercising the right does not render the excise of the right ineffective. In other words the defendant is at liberty to terminate the claimant’s employment with or without reasons. See FAKUADE V OAU 1993 5 NWLER PT.291 47, UMTHMB V DAWA 2001 16 NWLR PT.739 424. The claimant in this case has tendered exhibits CW1A, offer of appointment, of 30/4/14, CW1B, confirmation of employment of 30/4/15, CW1D, employee handbook. By these exhibits the claimant has discharged the burden of proving his employment and the conditions governing the contract of employment between the claimant and the defendant. As pointed out earlier the claimant instituted this action to challenge his alleged wrongful termination of employment premised on the assumption that the termination of claimant’s employment was based on conditions of service that was not in operation as at the time of termination. It was also alleged that the ad-hoc disciplinary committee report based on which claimant was terminated breached the doctrine of natural justice and good conscience. The claimant is also contesting the termination of his employment based on the belief that the allegation of fraudulent practices raises allegation of crime which an ad-hoc committee does not have the power to deal with. For proper resolution of the alleged fraudulent practices will only be done if the claimant is charged before a court of competent jurisdiction and prosecuted for the alleged fraudulent practices. It is trite law that an action for wrongful dismissal/termination of appointment, raises issues of whether the dismissal/termination is in accordance with the terms and conditions of the contract of employment between the parties. Where the court found that the dismissal/termination is in compliance with the contract of employment the matter ends there. But, where it is found not to be, then the next and final issue is what the remedy available for wrongful termination is. Before proceeding with the determination of the issues identified as the issues for resolution. I shall endeavour to resolve the issue of which between exhibit CW1D and DWA1-42 is the appropriate rules and regulations that governed the employment of the claimant with the defendant. The claimant’s position is that vide exhibit CW1B, the appropriate rules and regulations to governed the employment of the claimant is exhibit CW!D. according to the claimant exhibit DWA1-42 was vide exhibit DW1D signed on 25/8/17 after the claimant’s employment had been determined vide exhibit CW1M. Consequently, the claimant want this court to hold that exhibit DW1A1-42 cannot be used to terminate the claimant’s employment. According to counsel use of wrongful rules has vitiated the termination and exhibit CW1M has no legal effect. The defendant through DW1, has maintained that the use of exhibit DWA1-42 in determining the employment of the claimant was proper according to DW1, exhibit CW1B and CW1C1-4, new job title, clearly shows that reference to rules and regulation means exhibit DWA1-42. I have had a hard look at exhibit CW1B, CW1C1-4, CW1D, DWA1-42 and exhibit CW1D, what emerges from the perusal of these exhibit is the fact that exhibit DW1D did not clearly state that the document to be signed is exhibit DWA1-42. My reason for this holding is based on the facts that conditions of service are rules drawn up by the employer for regulation of conduct of employee in the day to day performance their functions. They are orders and directives that must be obeyed by an employee and infraction of which will attract sanctions. Therefore it is my view that what the defendant and the claimant are to sign or have signed on 25/8/17 is not a condition of service of the defendant. It is also well known that conditions of service are products of the employer and does not involve employee or union in formulating rules and regulations governing employment. The area in which employer usually consult with the employees or union is in the area of agreement of collective bargaining. I am satisfied that the conditions of service governing the employment of the claimant is DWA1-42 and not CW1D. Having resolved the applicable rules, I shall now proceed to determine whether the claimant’s termination of appointment vide exhibit CW1M was wrong or done in violation of the law. Sequel to the Audit investigation report on revenue assurance exercise, the Chief internal Auditor of the defendant issued exhibit CW1E, titled demand for explanation regarding allegation of engaging in collection of illegal fees from customers within the area of coverage of the claimant. The claimant reacted vide exhibit CW1F wherein he debunked all the allegations levelled against him. Vide exhibit CW1G, the claimant was formally queried on 26/4/17. In his response the claimant submitted exhibit CW1H, wherein he denied the allegations levelled against him. After the appraisal of exhibit CW1H i.e answer to the query. Vide a letter dated 6/6/17 an ad-hoc Disciplinary Committee to investigate the case of revenue assurance exercise in Kogi Region was set up to try the claimant. The committee convened and performed its assignment. At the end of the assignment the committee submitted its report Exhibit DW1M. The defendant after consideration of the ad-hoc disciplinary committee vide exhibit CW1M terminated the claimant’s employment. In an attempt to fault his termination, the claimant stated that the ad-hoc disciplinary committee breached the doctrine of natural justice. In that, he was not given opportunity to confront his accusers let alone of even interacting with them or cross-examining them. I have perused Exhibit CW1M, the ad-hoc committee’s report, it is manifest that all the persons interviewed were asked questions by the committee and they provided answers. It is also manifestly clear from the record that the witnesses that testified were never cross-examined. Therefore, the claimant was not given opportunity to confront his accusers or cross-examined them. What is clear from the ad-hoc committee’s report is that the witnesses testified behind the back of the claimant. It is trite law that he who assert must prove the claimant therefore has the onus of proving that the committee violated or breached the doctrine of natural justice. He has the burden of proving he has not been given fair hearing. Thus, in the case of Mbanefo v. Molokwu (2009) 11 NWLR (Pt. 1153) p.431 at p.449 Paragraph D, it was held that: "It is the person who alleges any breach of the rules of fair hearing that has the burden of proof of same. In the instant case, it is the Appellant who alleged before the trial Court that his right to fair hearing was breached, that owed therefore, the duty to prove same. He has to establish how his civil rights and obligations have been adversely affected by the alleged breach." This view was validated by Tobi, J.S.C . in the case of Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) p.282 at 307 Paragraph D when he held that: "The Constitutional guarantee is construed in the light of the facts of the case and the facts alone. It cannot be construed outside the facts. Accordingly, a party alleging the breach must show clearly from the facts of the case that the right is violated or breached. With respect, the Appellant has not demonstrated in his brief that the right was violated or breached." In the light of the law as stated above, the burden was on the claimant who complained that his right to fair hearing was not observed by the ad-hoc committee in the process of conducting their proceedings, to prove how his right was violated or breached. See further, S & D Const. Co. Ltd v. Ayoku (2011) 13 NWLR (Pt.1265) p.487; Maikyo v. Itodo (2007) 7 NWLR (Pt. 1034) p.443 and Imasuen v. University of Benin (2010) 3 NWLR (Pt. 1182) p.591. In that respect, the report speaks for itself it is my view that the claimant has discharged the burden on him. In SHELL PETROLEUM DEVELOPMENT CO. LTD V OLARENWAJU 2008 12 SC PT.II 27 “48-49 PARAS. 20-25, Tabai, JSC has this to say; ‘‘in cases of this nature the employee who was dismissed or otherwise punished for gross misconduct need not prove that the proceedings of the domestic panel that investigated him were indeed prejudicial to him, it is sufficient that it might. The risk of a prejudice is enough. This was the principle reiterated in OLATUNBOSUN V NISER (1988) 6 SC (Reprint) 56. In GARBA V UNIVERSITY OF MAIDUGURI (1986) 2 SC (Reprint) 90 “ 197 lines 5-10, the Supreme Court said of this principle thus: ‘‘The Court will not inquire whether such evidence or representation did work to the prejudice of the person being investigated. It is sufficient that it might. The risk of it is enough’’. In B. SURUNDER SINGH KANDA V GOVT. OF THE FEDERATION OF MALASIA (1962) AC 322 , the Privy Council spoke of the principle: ‘‘It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representation from one side behind the back of the other. The court will not inquire whether the evidence of representations did work to his prejudice. Sufficient that they might do so. The court will not go into the likelihood of prejudice. The risk of it is enough.’’ In the case at hand the claimant was not given opportunity to cross-examine his accusers. One of them was even interviewed via mobile telephone. What a travesty of justice. There is no gain saying that the state of the evidence before the court evidently established that the claimant was not given fair hearing as the evidence given against him was given in his absence and was not given the opportunity of cross-examining the witnesses that testified against him. The defendant has not denied this fact. In the circumstances I am satisfied that the claimant has proved breach of doctrine of natural justice. The violation of the doctrine of natural justice has rendered the termination of claimant’s appointment wrongful. The claimant went further to alleged that exhibit CW1M the claimant was found to have violated section 3.3.30 of AEDC rules and regulations on fraudulent practices i.e demanded and collected N12,000.00 (Twelve Thousand Naira) and N10,000.00 (Ten Thousand Naira). According to claimant the allegation of fraudulent practices borders on commission of crime in the circumstances for his termination to be valid he has to be prosecuted before a competent court of law. The law is now well, settled beyond any doubt in the case of FRANCIS C. ARINZE V FIRST BANK OF NIGERIA (2004) 5 SC (PTi) 160, at 663 at 673, (2004) 12 NWLR (Pt888) 663 at 673, per Belgore, JSC (as he then was), later CJN, has this to say: ’’this is a simple case of employee and employer not covered by statutory rules as in Federal Civil Service Commission & Ors. V Laoye (1989) 4 SC (Pt.ii) 1; (1989) 2 NWLR (Pt.106) 652 or Garba V University of Maiduguri (1985) 1 NWLR (pt18) 550. The latter case has had many irrelevant references as holding that once a crime is detected the employer cannot dismiss an employee unless he is tried and convicted first. This is unfortunately an erroneous interpretation of that judgment. In statutory employment as in private employment, the employer can dismiss in all cases of gross misconduct. In this case, the appellant was found guilty of insubordination and fraudulent claim of money; he claimed overtime allowance when in fact was never on duty to work during the normal office hours. He claimed refund for a treatment in hospital which never took place; he in this instance forged a doctor’s certificate. I find no merit in this appeal.’’ Applying the above dictum of Belgore CJN to the case at hand it is now clear that where an employee committed gross misconduct that also discloses crime, the employer need not wait for the outcome of prosecution of employee for such an offence before proceeding to discipline the employee under the contract of service or employment. See EZE V SPRING BANK PLC (2011) 12 Sc (pti) 173 a 196. The complaint of the claimant that he was not taken to court to be tried and convicted of the alleged crime of fraud cannot stand at the face of the clear and unambigos decisions of the apex court. see also IMONIKHE V UNITY BANK PLC 2011 5 SC (PT.I) 104. With the state of the law it cannot now be disputed in mere master and servant relationship, the servant may obviously be dismissed for dishonesty or fraud in his employment; see PHILIP V FAXALL (1872) LR 7 QB 666. The mater does not have to report the matter to the police let alone wait for prosecution to be done. He does not even have to reach a decision on the alleged crime; once he is satisfied that the servant has done something which is incompatible with the faithful discharge of his duty or has displayed conduct such that it would be injurious to the masters business to retain him, the master may dismiss the servant; see MAJA V STACCO (1968) ALL NLR 141. The burden is on the master to justify the dismissal. Having shown that the termination of claimant’s employment was wrongful due to breach of doctrine of natural justice, as enshrined in the conditions of service, I shall now proceed with the issue of kind of remedy the claimant is entitled to in law. The law is settled that where a contract of employment was wrongfully terminated the remedy for an employee affected is seek for damages. If the contract is terminable on notice and the employee is not given the requisite notice or payment in lieu of notice, the only remedy available to the employee is the award of salary for the period of the notice and any other entitlements due to him at the time of the termination of the employment. A declaration that the contract is still subsisting or that the termination is null, void and of effect, will not be made except in some cases of employment with statutory flavor. The general principle of law is that a servant cannot be imposed on an unwilling master even where the master's behavior is wrongful All that the appellant is entitled to is payment of one month salary in lieu of notice and any other entitlements legitimately due to him at the time of termination of his employment and nothing more By the reliefs being sought the claimant would seem to have wished away numerous decisions of the apex court on this point. In master and servant relationship parties are bound by the terms of their contract. If the conditions for the formation of a contract are fulfilled by the parties thereto, they will be bound. It is not the function of a Court to make a contract for the parties or to rewrite the one which they have made, U.B.N. v. Ozigi (1994) 3 NWLR (Pt. 333) 385, 404. Thus, unless it is established in evidence that a party was fraudulently led into an agreement, parties are bound by the written and express terms of their contract, Chidoka v. First Finance Co. Ltd (2012) LPELR-9343 (SC);  5 NWLR (Pt. 1346) 144. In other words, in the absence of fraud, duress and undue influence or misrepresentation, the parties are bound by their contract, Makwe v. Nwukor (2001) 7 SC (Pt. 1) 1, 38; A-B; Alade v. Alic (Nig.) Ltd  19 NWLR (Pt. 1226) 111. Under the common - and Nigerian - laws, the position is that, ordinarily, a master has the right to terminate his servant's employment for good or bad reasons or for no reason at all. The basic principle considered normally in the resolution of a dispute between a master and his servant is where the former determines the latter's appointment, it is the determination of whether the contract of service between the two of them is one with statutory-colouration/flavour. Where the servant is removed in a contract with statutory flavour, the first question the Court would ask is: has the servant's employment been determined in accordance with the way and manner prescribed by the statute under reference? However, in other cases governed only by agreement of the parties and not by statute, removal by termination or dismissal would be in the form agreed to. Any other form of dismissal or termination connotes only wrongful termination or dismissal. It therefore does not warrant a declaration of such dismissal as void. Where this happens, the only remedy open to the plaintiff is a claim for damages for that wrongful dismissal and not reinstatement. This is based on the notion that no servant can be imposed by the Court on an unwilling master even where the master's behaviour is wrong. For his wrongful act, the master is only liable in damages and nothing more, Chukwumah v. Shell Petroleum Dev. Co. Ltd. (1993) 4 NWLR (Pt. 289) 512, 560; Union Bank v. Ogboh  2 SCNJ 1, 16;  2 NWLR (Pt. 380) 647; N.E.P.A. v. Isieveore (1997) 7 NWLR (Pt. 511) 135; Fakuade v. O.A.U.T.H. (1993) 5 NWLR (Pt. 291) 47; Adeniyi v. Governing Council, Yabatech (1993) 6 NWLR (Pt. 300) 426; Imoloame v. W.A.E.C.  9 NWLR (Pt. 265) 303; Bankole v. N.B.C. (1968) 2 All NLR 371; Shitta-Bey v. Federal Public Service Commission  1 SC 40; U.N.T.H.M.B. v. Nnoli (1994) 8 NWLR (Pt. 363) 376; N.O.M. Ltd v. Daura (1996) 8 NWLR (Pt. 468) 601. What flows from this latter category, that is, in cases governed only by agreement of the parties, and not by statute, is that the measures of damages recoverable in situations of wrongful termination or dismissal of a servant are determined by what the employee would have earned over the period of notice required for the determination of the employment, Nom Ltd v. Daura (supra); N.P.M.B. v. Adewunmi (1972) 11 SC 111; Onalaja v. African Petroleum Ltd  7 NWLR (Pt. 206) 691; Chukwumah v. Shell Petroleum Dev. Co. Ltd. (1993) 4 NWLR (Pt. 289) 512; International Drilling Co. Ltd. v. Ajijala (1976) 2 SC 115; Akinfosile v. Mobil (1969) NCLR 253; WNDV v. Abimbola (1966) 1 All NLR 159; Mayne and McGregor on Damages (12th edition); paragraph 608. Simply put, therefore the measure of damages in cases of wrongful dismissal of this category is always the amount of money that is payable during the period of notice to be given by the employer as stipulated in the contract of employment, Nigerian Produce Marketing Board v. Adewunmi (1972) 11 SC 111; Olatunbosun v. N.I.S.E.R Council (1988) 3 NWLR (Pt. 80) 25. The principles of law governing the award of damages were stated in Nigeria Produce Marketing Board v. A. I. Adewunmi (1972) 1 All NLR (Pt. 2) 433, 437. ‘‘In a claim for wrongful dismissal, the measure of damages is prima facie the amount that the plaintiff would have earned had the employment continued according to contract , Beckham v. Drake (1849) 2 H. L Case 579 at pages 607-608. Where however the defendant, on giving the prescribed notice, has a right to terminate the contract before the end of the term, the damages awarded, apart from other entitlements, should be limited to the amount which would have been earned by the plaintiff over the period of notice, bearing in mind that it is the duty of the plaintiff to minimize the damage which he sustains by the wrongful dismissal. The application of this principle was vividly demonstrated in the case of Western Nigeria Development Corporation v. Jimoh Abimbola, (supra) where the court after stating the guiding principles, said: ‘‘The plaintiff was given a letter of appointment (Exhibit A)... The plaintiffs appointment was governed by the contract to which he entered at the time of his appointment. If he had been given one month's notice before termination of his appointment, he would have had no claim whatever on the Corporation. But he was not given notice, and he is entitled to one month's salary in lieu of notice. That is all he can get as damages.’’ From all I have said above, I am left with only one option. It is to award payment of salary in lieu of notice and no more. In doing this I will resort to exhibit CW1C1-4, which provide either party wishing to terminate shall give one month notice or salary in lieu of notice. Therefore I award one Month salary in lieu of notice for the termination of claimant’s employment. On counter claim. The entire reliefs were based on following due process in termination of claimant’s appointment. However, with the finding of this court that the termination was wrongful due to breach of procedure requiring compliance with doctrine of natural justice, the counter claim must fa1l like pack of card, it is hereby dismissed for lacking in merit. The cost of this suit is put at N300,000.00 (Three Hundred Thousand Naira) to be paid to the claimant by the defendant. For avoidance of doubt the orders of the Court are. 1. The defendant shall pay to the claimant one Month salary in lieu of notice for wrongful termination of employment. 2. Cost in the sum of N300,000.00 All sums payable under this judgment shall be paid within 21 days from the date of this judgment. Sanusi Kado, Judge.