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JUDGMENT INTRODUCTION 1. The claimant had filed this suit on 25th February 2014 vide a complaint, statement of facts, list of witnesses, written statement on oath, list of documents and copies of the documents. The defendant entered formal appearance and filed its defence processes i.e. statement of defence, list of witnesses, witness statement on oath, list of documents and copies of the documents. To this, the claimant filed his reply to the statement of defence, witness statement on oath, list of additional documents and copies of the additional documents. Both parties later applied and were allowed to file additional originating and defence processes in proof of their respective cases. 2. The claimant is praying for the following reliefs: (a) A declaration that the claimant’s employment with the defendant should be deemed as having been confirmed by virtue of the fact that after the claimant completed his six months’ probation period in November, 2011, the defendant allowed and/or permitted the claimant to continue working without any complaint whatsoever. (b) An order setting aside the defendant’s purported letter of termination headed “Completion of Probation Period” dated 22nd December, 2011. (c) An order compelling the defendant their agent and/or privies jointly and/or severally to pay the sum of N100,000,000 (One Hundred Million Naira) to the claimant for defamation of character. (d) An order compelling the defendant to pay to the claimant the total sum of N2,271,787.09 (Two Million, Two Hundred and Seventy-One Thousand, Seven Hundred and Eighty-Seven Naira, Nine Kobo) as special damages as stipulated in the claimant’s contract of employment dated the 31st March, 2011. (e) Interest on the judgment sums at the rate of 22% per annum from 22nd December, 2011 till judgment is delivered in this suit and thereafter at 10% per annum until total liquidation of the judgment sum. (f) Solicitor’s fees of N5,000,000 (Five Million Naira). 3. At the trial, the claimant testified as CW1 and tendered Exhibits C1 to C134. Mr Hakeem Oyebola, a Telecommunication Technician, testified for the claimant as CW2. For the defendant, Mrs Modupe Ojutiku, Head of Special Projects of FBN Quest Merchant Bank, testified as DW1 and tendered Exhibits D1 to D21; while Miss Kemi Ayanlowo, IT Project Manager of FBN Quest Merchant Bank, testified as DW2 and tendered Exhibits D22 to D25. At the close of trial, parties filed their respective final written addresses. The defendant’s was filed on 15th January 2019 (settled by Chukwuka Ikwuazom), while the claimant’s was filed on 10 April 2019 (settled by Chinelo Okakpu). The defendant did not file any reply on points of law. THE CASE BEFORE THE COURT 4. The case of the claimant is that upon his employment by virtue of an employment letter dated 31st March 2011, he was placed on probation for six months which ended on 22nd November 2011. Upon resumption, the claimant was not assigned IT Projects with defined timelines critical to the successfully implementation of the final phase of IBAM integration by the defendant. However, on 6th December 2011 the then CEO issued a query to the claimant asking him why disciplinary action should not to be taken against him. The claimant responded to the query and “clarified and successfully rebutted the accusations” contained in the query. Upon receipt of the claimant’s response the defendant’s query, the CEO summoned the claimant to Human Resources Department on 8th December 2011 where he summarily dismissed the claimant in the presence of the HR and some staff. That the defendant in order to cover their unfair, unjust and defamatory treatment meted on the claimant on 8th December 2011, the defendant belatedly emailed a letter of termination of employment to the claimant on 22nd December 2011. The claimant insists that he discharged the duties of his employment diligently and denies responsibility for the delayed completion of the IT integration of the defendant’s IBAM subsidiaries. The claimant further claims that he was verbally abused and defamed by the defendant’s late CEO. It is this alleged abuse and defamation that provide the basis for the claimant’s claim for N100,000,000.00 (One Hundred Million Naira). The claimant further alleges that certain unauthorized deductions were made from his remuneration between October and December 2011 for which he claims the sum of N1,358,552.70 (One Million, Three Hundred and Fifty-Eight Thousand, Five Hundred and Fifty-Two Naira, Seventy Kobo). 5. The case of the defendant is that it employed the claimant as its Head of IT. The claimant accepted the offer of employment and resumed duties with the defendant on 23rd May 2011. Following the claimant’s resumption, he was assigned some projects which were critical to the implementation of the final phase of the IT integration of its subsidiaries being pursued by the defendant. The claimant failed to deliver on these projects leading on one occasion to a complete breakdown of critical infrastructure required by all the business and operational units of the defendant. The claimant’s poor performance culminated in his being issued a query by the then CEO of the defendant. Although the claimant responded to this query, the defendant did not find his response satisfactory. The defendant denies that the claimant was summarily dismissed by its former CEO and maintains that the claimant left the offices of the defendant on 8th December 2011 and did not return until 15th December 2011. 6. Pursuant to the claimant’s letter of employment and defendant’s Human Resources Policy (expressly incorporated into his letter of employment), the claimant was required to be on probation for six months. At the end of the probationary period the claimant’s performance was to be assessed to determine his suitability for employment. The claimant knew that this assessment was a condition precedent to his confirmation. The claimant’s probationary period ended on 22nd November 2011 and on 1st December 2011 (after only a few days), Mrs Modupe Ojutiku forwarded a confirmation assessment form to the claimant with a request that he completes the form and forward it to his supervisor for his assessment. The claimant by his own testimony failed to complete the assessment form. On these facts, the defendant contends that the claimant’s allegation that the defendant had by its conduct confirmed his employment is grossly untrue. 7. The defendant further asserts that the claimant’s performance was subsequently appraised by the then CEO of the defendant as required by the defendant’s Human Resources Policy Guide. The claimant was assessed to have performed below average in line with the performance indicators for his level. Consequently, the defendant terminated the claimant’s employment effective 22nd December 2011. The defendant paid the claimant his two-week salary in lieu of notice and his pro-rated leave benefits among other entitlements due to him as an unconfirmed employee. The defendant maintains that the claimant was disengaged in line with the terms and conditions of his employment and the defendant’s Human Resources Policy Guide. The defendant denies that the claimant was defamed by its former CEO and argues that this Court lacks the jurisdiction to try a defamation claim. Regarding the claim for unauthorized deductions by the claimant, it is the defendant’s case that these deductions were authorized and made in compliance with the 2011 amendment to the Personal Income Tax Act which adjusted the statutory deductible allowances which the claimant previously enjoyed. The defendant accordingly urged the Court to dismiss this suit with substantial costs. THE SUBMISSIONS OF THE DEFENDANT 8. The defendant submitted a sole for determination: whether the claimant has established his entitlement to the reliefs he has sought in this suit. The defendant, however, addressed this sole under the following sub-issues: a) whether the claimant’s employment was validly terminated by the defendant; b) whether this Court has the jurisdiction to hear and determine the claimant's claim for defamation; c) in the alternative to b), whether having regard to the evidence led, the claimant has proved a case of defamation against the defendant; and d) whether the claimant is entitled to a refund of the additional statutory deductions which were made from his monthly emoluments between October and December 2011. 9. As a preliminary point, the defendant raised issues as to the admissibility and/or evidential value of some of the documents. That at the trial of this suit on 11th December 2018, the Court in the course of admitting the documents tendered in evidence by DW1 and DW2, noted that Exhibits D3, D6, D7, D12, D21 and D23 were unsigned and or undated documents. The documents were, however, admitted in evidence without prejudice. That it is important to state that the claimant also tendered and relied on Exhibits D3, D6 and D7. The copies of Exhibits D3, D6 and D7 tendered by the claimant were admitted in evidence as Exhibits C3, C5 and C6 respectively. Based on this, that there is no dispute between the parties as to the authenticity of the said exhibits before this Court. The defendant, therefore, urged the Court to give full evidentiary weight to these pieces of evidence before this Court. That Exhibit D12, on its face, shows that it was sent by email to: titilope.odukoya@fbncapital.com and requests an email response to: response@veroscreening.com. In any event, the claimant has not disputed that Vero Screening sent the document to the defendant. Exhibit D21 is merely a spreadsheet showing the computation of the claimant’s entitlement. Again, that the claimant has not challenged or disputed this computation. The defendant also submitted that pursuant to section 12(2)(b) of the National Industrial Court (NIC) Act 2006 and Order 6 Rules 1 and 2 of the Rules of this Court 2017 (NICN Rules 2017), this Court is empowered to depart from the applicable rules of evidence in the interest of justice and apply the rules of equity as may be necessary to ensure justice is done in each case. On this premise, the defendant urged the Court to ascribe the necessary evidentiary value and weight to Exhibits D3, D6, D7, D12, D21 and D23, on the ground that the authenticity of these documents has not been challenged and it is in the interest of justice to admit and accord full evidentiary value to them. 10. On the sole issue submitted for determination, citing sections 131, 132 and 133 of the Evidence Act, the defendant submitted that as a threshold matter, the burden of proving his entitlement to the reliefs he claims is on the claimant. That it follows, therefore, that the claimant must succeed or fail on the strength of his own case and not on the weakness of the case of the defendant, citing Onwugbufor v. Okoye [1996] 1 NWLR (Pt. 424) 252. That the claimant failed wholly to prove his entitlement to the reliefs he seeks. 11. On whether the claimant’s employment with the defendant was validly terminated, the defendant submitted that in his pleadings, the claimant made two principal allegations in relation to the termination of his employment with the defendant. He alleged that he was summarily dismissed by the then CEO of the defendant and that following the end of his period of probation on 22nd November 2011, he was confirmed by the defendant’s conduct in allowing him to continue to work for the defendant beyond that date. To the defendant, the evidence presented at the trial of this suit negates these allegations. That the evidence before this Court shows that the claimant was issued a query on 6th December 2011 (Exhibit D2) and that he responded to the query on 7th December 2011 (Exhibit D3). That the claimant testified in chief that on receipt of Exhibit D3, the then CEO of the defendant “summoned me to the Human Resources Department and when I arrived the HR dept., I met the CEO and another member of staff, Mrs. Modupe Ojutiku and the CEO summarily dismissed me and directed that I leave the building immediately”, referring to paragraph 16 of the claimant’s witness statement dated 25th February 2014. That this allegation was denied by Mrs Ojutiku (DW1) who testified that no such happened in the HR Department on the said date. On his part, CW2 testified in chief that “on the morning of the 8th December, 2011, the CEO, Mr. Osaze Osifo came into the IT Department and walked the Claimant, the then head of IT out of his office and the IT Department in the presence of the IT staff (my goodself, Kehinde Alao and Victor Odiaka”, referring to paragraph 6 of CW2’s witness statement dated 19th December 2014. Before proceeding any further, the defendant drew the Court's attention to the contradiction in the evidence of CW1 and CW2 on this issue. While CW1 testified that he was invited into the Human Resources Department and summarily dismissed and asked to leave the building in the presence of CW1, DW2 (sic) testified that the late CEO of the defendant came into the IT Department to order the claimant out. 12. The defendant went on that during cross-examination, CW1 testified that the summary dismissal was done orally and communicated to him in the HR office. He admitted that following the alleged dismissal, he was not asked to return company properties in his possession and that he retained the laptop, identity card, modem and his official car and that it was only on 22nd December 2011 when the company wrote terminating his employment that he was asked to return company properties in his possession. CW2 on his part testified during cross-examination as follows: “Yes, I stated that Mr. Osaze Osifo, the then CEO of the defendant walked the Claimant out of his office and the IT Department. Yes, I recall the words of the CEO on that day. He said: ‘Olu Fasan, I said you should leave the building’, And Olu proceeded to the door and that was the last I saw of him in the IT Department. Yes, in saying that (as per paragraph 8 of my deposition) that the Claimant was summarily dismissed, I said that in terms of what I heard the CEO say to the Claimants in the words 1 just quoted.” That what CW2 was saying essentially is that he only heard the then CEO of the defendant ask the claimant to leave the building and this was what he interpreted as “summary dismissal” of the claimant. 13. That Mrs Ojutiku (testifying on behalf of the defendant as DW1) testified in chief as follows: “...As the Head of People Management and General Services, I would be aware of any dismissal of an employee. I know as a fact that the Defendant would never dismiss any employee orally. A letter of dismissal would have to be issued and that letter would be signed by either me or the Managing Director/Chief Executive Officer of the Defendant depending on the level of seniority of the affected employee. At no point did I or any other officer of the Defendant sign a dismissal letter for the Claimant”, referring to paragraph 8 of DW1’s supplementary witness statement of 19th October 2015. That DW1 had earlier testified in chief that the claimant had continued in the employment of the defendant until 22nd December 2011 when his employment was terminated and that this was confirmed by the email correspondence of 15th December 2011 (Exhibit D4) “by which the Claimant was invited to attend a meeting with the members of the Executive Committee of the Defendant to deliberate on the projects embarked upon by the IT department”, referring to paragraph 9 of DW1’s witness statement dated 24th April 2014. That DW1 during her cross-examination denied that the claimant was walked out of the Human Resources Department on 8th December 2011. 14. To the defendant, on the state of evidence led at trial, the claimant has not established by a preponderance of evidence that he was summarily dismissed by the defendant. His evidence that the summary dismissal was done orally does not stand up to scrutiny. that DW1’s testimony that the defendant does not dismiss its employees orally accords with common sense and acceptable practice and is further buttressed by the fact that the claimant’s eventual termination on 22nd December 2011 was not done orally but in writing. Significantly, that it does not make sense that the defendant will dismiss the claimant and allow him to retain all the company assets in his possession including his official car, laptop, modem, identity card, etc. Even his official email was not deactivated and he was able to receive the email sent to him by the defendant on 15th December 2011 requesting him to attend a meeting with the Executive Committee. 15. What is more? That CW2, a witness called by the claimant, admitted under cross-examination that his testimony, during his evidence in chief, that the defendant summarily dismissed the claimant was based upon his interpretation of the words “Olu Fasan, I said you should leave the building”, which he said he heard the then CEO of the defendant say to the claimant. That assuming without conceding that these words were said to the claimant allegedly during an altercation between him and the former CEO, they would still fall far short of a dismissal. When the words allegedly said to him are considered within the context that he was not asked to surrender the assets of the company in his possession before leaving, it becomes clear that it would be highly unreasonable to consider those words as conveying a dismissal. Further, the claimant did not testify that he was estopped from accessing the defendant's offices subsequently. Quite to the contrary, he received an invitation to a meeting at the offices of the defendant and was allowed access therein on 15th December 2011. The defendant then urged the Court to hold that the claimant was not summarily dismissed by the defendant. 16. The claimant had alleged that his employment was confirmed by the conduct of the defendant following the end of his probation. To the defendant, this is also wholly unsubstantiated. That as admitted by the claimant, his employment with the defendant was governed by his letter of employment (Exhibit D1) and the defendant’s Human Resources Policy Guide (Exhibit D9, also tendered by the claimant and admitted as Exhibit C8) expressly incorporated into his terms of employment. That Exhibit D1 provides in relevant part as follows: Probation: you will be on probation for a minimum period of six (6) months. Confirmation of your employment depends on your performance during the probation period, the satisfactory response of your references and your last employer. Your probation period may be extended for an additional period up to a maximum of three (3) months if your performance falls below the organisation’s acceptable standard. If so extended, your employment automatically lapses at the expiration of the extended probation period unless your employment is confirmed.” 17. That Exhibit D9 (at page 16) further provides in relevant part as follows: Probation: Every new employee goes through a six-month probationary period. During the period he/she is given an opportunity to determine his/her compatibility with the company and vice versa. Performance shall be assessed at the end of the probationary period to determine suitability for employment. If an unsatisfactory report is received, it will be discussed orally with the probationer by the Departmental Head and/or Head PM & GS and the probationer will be given every opportunity and encouragement to improve, within a further period of 3 months. However, if he/she fails to improve, his/her employment will be terminated. 18. To the defendant, a joint reading of these provisions of Exhibits D1 and D9 makes it clear that confirmation of an employee’s employment after the period of probation involves an assessment of the employee’s performance to determine suitability for employment. That this process was well-known to the claimant. That at paragraph 10 of her witness statement dated 24th April 2014, DW1 testified as follows: The Claimant is fully aware that the process by which a probationer's employment is confirmed involves a formal appraisal of the employee's performance during the period of probation using an Employee Confirmation Appraisal Form. The employee first completes certain portions of the Form and then forwards it to his/her immediate supervisor for assessment. And at paragraph 12 of the same witness statement, DWI further testified as follows: On 01 December 2011, as Head of People Management and General Services of the Defendant, I initiated the process of the Claimant’s confirmation appraisal by sending the Defendant’s Employee Confirmation Appraisal Form to the Claimant by email. In the aforesaid email, the Claimant was addressed as follows: Dear Olu, Your probation period expired on 22nd November, 2011. All the requisites for your confirmation has (sic) been fulfilled. In view of this, kindly complete the confirmation assessment form attached herewith and forward to your immediate supervisor for assessment. That during her cross-examination, DW1 confirmed this procedure that she had explained in her examination in chief. 19. The defendant continued that when cross-examined on this issue, the claimant after initially saying that he was not made aware of the fact that a formal appraisal of his performance was a condition precedent to his confirmation, testified as follows: “Yes, I accept the content of the provision of Exhibit D9 as to probation as part of the process needed for my confirmation. I believe I received an email from the people management and general services of the Defendant on 1st December 2011. Yes, the email just shown to me Exhibit D5 is the one. It is dated 1st December 2011. I confirm the contents of the email”. That the provision of Exhibit D9, which the claimant said he accepted as part of the process needed for his confirmation, is the provision that says that “performance shall be assessed at the end of the probationary period to determine suitability for employment”. That upon further questioning during cross-examination, the claimant admitted that he failed, refused or neglected to complete the confirmation assessment form attached to DW1’s email to him (Exhibit D5) as requested by DW1 in Exhibit D5. The defendant then invited the Court to note that Exhibit D5 with the attachment was sent to the claimant on 1st December 2011 only a few days after the expiry of his probation period and before the query that was issued to him on 6th December 2011. 20. The defendant then asked: how can the claimant who failed, refused or neglected to complete the confirmation assessment form that will trigger his confirmation appraisal and send same to his supervisor now be contending that his employment should be deemed confirmed by the conduct of the defendant in allowing him to continue working after the expiry of the period of his probation? The defendant went on that as explained by DW1 at paragraph 13 of her witness statement dated 24th April 2014, it may not be feasible to carry out a formal appraisal of a probationer on the exact date that the probationer’s six-month probation period expires for a number of reasons including the busy schedules of the appraiser and appraisee or the non-availability of either or both of them. That this inability, however, does not and cannot operate to render a probationer automatically confirmed. That in this case, the People Management and General Services Department of the defendant commenced the process of the claimant’s appraisal on 1st December 2011 by sending him the assessment form he needed to complete and return to his supervisor. This was approximately eight days from the last day of his probation period (22nd November 2011). That the eight days between the end of the claimant’s probationary period and the commencement of his appraisal process do not justify the claimant’s contention that his employment was automatically confirmed by the conduct of the defendant. More importantly, that the claimant’s refusal to complete the assessment form sent to him negates and disentitles him from any claim to such automatic confirmation. 21. That the position would have been different if the defendant had made any representation to the claimant that his employment had been confirmed without an appraisal. But no such representation was made to the claimant. That the courts have held that estoppel would be created in cases where an employer has unduly delayed in confirming the employment of a worker and has conducted itself in a manner that would create a reasonable impression that the employee’s employment has been confirmed. For instance, in Obafemi Awolowo University v. Dr. Kola Onabanjo [1991] 5 NWLR (Pt. 193) 549, the court held that unreasonable delay which allowed the respondent to continue his duties and the payment of his salary at the expiration of his probation amounted to confirmation. The court held as follows: The appellant had delayed unnecessarily in making up their minds whether to terminate or confirm respondent’s probationary appointment. By keeping him in his employment and continuing to pay him for four months after the probationary period of three years had expired, they would be deemed by operation of law to have confirmed his appointment, and the doctrine of “estoppel by conduct” would operate to prevent the appellant, from alleging and treating him as if he was still on probation. Similarly, in Dr. Ajewunmi Bili Raji v. Obafemi Awolowo University [2014] LPELR-22088(CA), the plaintiff’s probation expired in March 2010, but the defendant did not confirm his appointment but continued to pay his salary until 30th November 2010 (a period of 8 months) when he received a letter terminating his employment. The court rightly held that estoppel applied. The defendant then urged the Court to hold that the claimant’s employment with the defendant was not automatically confirmed and that the defendant is not estopped from contending that it was not. 22. Continuing, the defendant observed that going by the reliefs endorsed in the claimant’s pleading, the claimant’s real complaint about the termination of his employment is that it ought to have been terminated by three months’ notice or by the payment of his three months’ salary in lieu as applicable to confirmed employees, referring to paragraph 29(b) and (c) of the claimant’s witness statement made on 25th February 2014. Thus, that once it is shown that the claimant was not a confirmed employee of the defendant on 22nd December 2011 when his employment was terminated, his claim on this point will fall away. 23. For completeness, the defendant noted that the impeached evidence presented to the Court shows clearly that following the claimant’s admitted failure, refusal or neglect to complete the assessment form sent to him vide Exhibit D5, the then CEO of the defendant who supervised the claimant proceeded to assess the claimant. A copy of the assessment form containing the CEO’s assessment (Exhibit D6) was sent to the claimant, but the claimant still failed, refused or neglected to provide any comments. That the claimant admitted that he received the form containing the CEO’s assessment during cross-examination when he testified as follows: “Yes, I was supplied with a copy of the assessment form as completed by my supervisor after I was worked out i.e. summarily dismissed”. That the only explanation offered by the claimant for failing to provide feedback on his supervisor’s assessment was that the form containing the said assessment of his performance during his probation was sent to him after he was summarily dismissed. That having established that the claimant was not summarily dismissed, the fact that his assessment form containing his supervisor’s comments was sent to him after the alleged summary dismissal is further proof of the fact that the claimant was not summarily dismissed. That it was after the claimant failed to provide feedback on his supervisor’s assessment of his performance during his period of probation that the defendant made the decision to terminate his employment. In doing so, the claimant was paid two week’s basic salary in lieu of notice and two weeks’ pro-rated leave allowance, which he was entitled to as an unconfirmed employee of the defendant. On this premise, the defendant submitted that the claimant is not entitled to the alleged termination benefits due to a confirmed employee. Also, that the claimant having received his duly computed benefits as stated in Exhibit D7, he is not entitled to any additional benefits under the contract of employment, urging the Court to so hold. 24. On the issue of jurisdiction over the claimant’s claim for defamation, the defendant submitted that the jurisdiction of this Court is statutorily limited and does not extend to the hearing and determination of defamation claims, citing section 254C(1) of the 1999 Constitution. That in this suit, the claimant seeks relief primarily for alleged summary dismissal. Its claim for defamation is a stand-alone claim and cannot be considered ancillary to the main claim because it is completely removed from the subject matter of the main claim. Referring to Akpan v. UNICAL [2016] LPELR-41242(CA), the defendant submitted that this Court has no jurisdiction over claims in tor including defamation since such stands on its own and cannot be an ancillary claim to a claim for wrongful dismissal. The defendant, therefore, urged the Court to strike out the claimant’s claim for defamation, discountenance all references to defamation in the claimant’s statement of fact and disregard all evidence tendered by the claimant in respect of the relief sough in paragraph 30(c) of the claimant’s statement of facts, referring further to the unreported decisions of this Court in Clement J. Otton v. University of Uyo (NICN/UY/06/2012) and Dr Clestine U. Njoku v. Engr. Clinton C. Emekoma (NICN/OW/66/2014). 25. The defendant went on that even assuming for purposes of argument that this Court has the jurisdiction to try the claimant’s defamation claim, the claim will still fail because the claimant has not proved a case of defamation against the defendant. That in proof of the claim for defamation, the claimant testified in chief at paragraph 23 his witness statement dated 25th February 2014 that: (i) On 8th December 2011, the Defendant’s CEO ordered me to get out of the Defendant’s premises in the presence of two members of my team (Kehinde Alao and Victor Odiaka). (ii) The Defendant’s CEO expressly said to me: “you are not a man. I am not treating you like a man because you do not have the balls”... 26. That although the claimant (as CW1) testified in chief that it was two members of his team (Kehinde Alao and Victor Odiaka) who were present when he was ordered out of the defendant’s premises and the alleged defamatory words said to him, the same claimant nonetheless called CW2 who testified in contradiction of the claimant that he (CW2), Kehinde Alao and Victor Odiaka were present when the incident happened. In the words of CW2: That on the morning of 8th December 2011, the CEO Mr. Osaze Osifo came in to the IT Department and walked the Claimant the then head of IT out of his office and the IT Department, in the presence of the IT staff (my goodself, Kehinde Alao and Victor Odiaka) - see paragraph 6 of CW2’s witness statement. The defendant then invited the Court to note that throughout his examination in chief, CW2 said nothing about the alleged defamatory words that were purportedly said to the claimant in his presence and in the presence of two other members of the IT team. Significantly, however, that during CW2’s cross-examination, he stated that the words he recalled the late CEO of the defendant saying to the claimant were “Olu Fasan, I said you should leave the building”. 27. The defendant proceeded to submit that the contradictions in the evidence presented by the claimant in proof of his defamation claim are enough to impel this Court to reject the claim. More importantly, the evidence provided by the claimant falls far short of establishing important ingredients of the tort of slander which is the species of defamation alleged by the claimant, citing Ayuba v. Sule [2016] LPELR-40263(CA), where the Court of Appeal aptly captured the essential ingredients of slander in the following words: The first requirement that is essential in slander is malice. To succeed in a case of slander, the plaintiff must prove the words spoken, communication of the words to a third person, falsity of the communication against the plaintiff, damage must be proved except the slander is actionable per se, the actual words spoken should be reproduced in the language spoken with an English translation. See: AMAHAGWU v. NGWOKOR (2004) ALL FWLR (PT.219) 1091 at 1098, YESUFU v. GBADAMOSI (1993) 6 NWLR (PT. 299). 28. That the claimant has not established by any credible evidence that the alleged defamatory words “you are not a man. I am not treating you like a man because you do not have the balls” were ever spoken to him. His own witness (CW2) in the presence of whom the words were allegedly spoken denied ever hearing the former CEO of the defendant say those words to the claimant. The claimant has also failed to prove that these words (if at all spoken to him) were published to any third party again because CW2 (one of the alleged joint recipient of the publication) testified in cross-examination that those were not the words he heard the former CEO of the defendant say to the claimant. In any event, the claimant has also not proved damage as required by the authorities. 29. The defendant continued that even assuming for argument purposes only that the alleged defamatory words “you are not a man. I am not treating you like a man because you do not have the balls” were uttered to the claimant (which is strenuously denied), the defendant submits that the words alleged to have been uttered are incapable of connoting the impression or innuendo suggested in paragraph 24 of the claimant’s witness statement made on 25th February 2014. At worst, the alleged words in the context in which they were allegedly said would portray the claimant as someone who has an aversion to risk-taking. No reasonable person will interpret the alleged words as suggesting that the claimant had done something fraudulent or that he had been summarily dismissed or that he had done something reprehensible or disreputable or that he had misappropriated the defendant’s funds. In any event, the claimant has not provided any evidence to show that anyone in fact interpreted the alleged words as suggesting to him or her any of the impressions or innuendos alleged. The defendant, therefore, submitted that assuming the alleged words were said to the claimant, there is no evidence to show that the words created such innuendo or impression in the mind of right thinking third parties. 30. The defendant went on to submit, only as an alternative argument and without prejudice to its position that no defamatory words were ever said to the claimant, that the alleged words if they were said, could only have been said in the heat of passion and could not have been intended to be taken in the literal sense or intended to result in damage to the claimant’s reputation as alleged. That the legal principle that words uttered in the heat of passion may not constitute slander was reiterated in Adeyemo v. Akintola [2004] 12 NWLR (Pt. 887) 390. That defendant, therefore, urged the Court to hold that assuming the alleged words were said to the claimant (which is denied), they could not, in addition to other reasons already proffered, constitute slander because they would be words spoken in the heat of passion. 31. In the further alternative, the defendant also submitted that assuming the alleged words were spoken to the claimant by the former CEO of the defendant (which is denied), the defence of justification/fair comment would apply to the extent that the alleged defamatory words are interpreted to mean that the claimant was incompetent and unsuitable for the job. The defendant has led credible evidence to show that the claimant's performance during his period of probation was poor as evidenced in the query that was issued to him (Exhibit D2) and his supervisor’s assessment of his performance as contained in Exhibit D6. Significantly, the Claimant failed to provide a feedback to the assessment made in Exhibit D6 notwithstanding that he had every opportunity to do so. The defendant then referred to Sketch v. Ajagbemokeferi [1985] 1 NWLR (Pt. 4) 704, which laid down the test for the defence of fair comment. 32. Finally on this sub issue, the defendant submitted in the further alternative that even assuming that the former CEO of the defendant defamed the claimant (which again is denied), the defendant cannot be held vicariously liable for the defamation. The defendant’s argument in this regard is buttressed by the internal processes put in place by the defendant to ensure the highest sense of professionalism amongst its staff. These are contained in terms of clauses 2.1, 2.2 and 12.0 of Exhibit 9 (the HR Policy Guide), which demand high ethical standards, high standards of professional judgment, and fronts on abusive language. That the defendant having put in place the necessary policy to curb improper conduct within its work environment, it cannot be held liable for actions of its employees which were not authorized or ratified by the defendant. Significantly, that the claimant did not lodge a complaint against the then CEO regarding the alleged defamation. Indeed, that this issue was raised for the first time in this suit, citing Bello v. Dadah & anor [2016] LPELR-40337(CA) where Sankey, JCA held that “an employer can be vicariously liable for the negligent or reckless acts of an employee if he failed to provide the necessary controls by way of instructions and other steps to prevent unnecessary risks to other employees”. On the whole, the defendant urged the Court to reject the claimant’s defamation claim for all the reasons adduced. 33. Regarding whether the claimant is entitled to a refund of the additional statutory deductions which were made from his monthly emoluments between October and December 2011, the defendant snared that he is not. The claimant had alleged that the defendant made unauthorized deductions totaling N1,358,552.70 (One Million, Three Hundred and Fifty-Eight Thousand, Five Hundred and Fifty-Two Naira, Seventy Kobo) from his monthly salary between the months of October and December 2011. In proof of this allegation, the claimant testified at paragraphs 12 and 13 of his witness statement dated 25th February 2014 as follows: 12. That I earned a monthly sum of N1,880,649.91 (One Million, Eight Hundred and Eighty Thousand, Six Hundred and Forty Nine Naira, Ninety One Kobo) as remuneration in the Defendant company. 13. However, sometime around October 2011, without any notice to me, my monthly salary and benefits payment was reduced from N1,880,649.91 (One Million, Eight Hundred and Eighty Thousand, Six Hundred and Forty Nine Naira, Ninety One Kobo) to N1,427,799.01 (One Million, Four Hundred and Twenty Seven Thousand, Seven Hundred and Ninety Nine Naira, One Kobo) which is a difference of N452,850.90 (Four Hundred and Fifty Two Thousand, Eight Hundred and Fifty Naira, Ninety Kobo) which I demanded an explanation for without any given. 34. Before proceeding any further, the defendant drew the Court’s attention to the false statement the claimant made at paragraph 13 of his witness statement just reproduced. That the claimant in the aforesaid paragraph testified on oath that in October 2011, his monthly pay was reduced by N452,850.90 and further stated “which I demanded an explanation for without any given”. However, that when the claimant was cross-examined on this issue, he initially stated that he did not notice the shortfall but subsequently changed his testimony and testified as follows: “When I received my salary in October 2011, I did notice that there was a shortfall in my salary. No. I did not complain to the defendant when I noticed the shortfall in salary.” That in one breath, the defendant (sic) was saying that he demanded an explanation and none was given. In the other, he was testifying that he did not complain to the defendant when he noticed the shortfall. To the defendant, the fact that the claimant lied on oath has greatly damaged the credibility of the claimant and provides a valid basis for the Court to reject the entirety of his evidence. 35. That the truth, as presented by the defendant in this suit is that sometime in 2011, the National Assembly amended the Personal Income Tax Act. The 2011 amendment among other things, replaced the different kinds of allowances claimable by taxpayers with a consolidated relief allowance. In simple terms, the effect of this was that it was no longer lawful to structure an employee’s remuneration in such a way as to minimize personal income tax liability by treating large portions of the remuneration as non-taxable allowances, referring to section 5 of the Personal Income Tax (Amendment) Act 2011, which amended section 33 of the Personal Income Tax Act as follows: Section 33 of the Principal Act is amended by - (a) Substituting for subsection (1) a new sub-section (1) ‘there shall be allowed a consolidated relief allowance of N200,000.00 subject to a minimum of one per cent of gross income whichever is higher plus twenty per cent of the gross income and the balance shall be taxable in accordance with the income table in the Sixth Schedule to this Act’; (b) ………………………… 36. That as a responsible corporate organization, the defendant had to comply with the new provisions by recomputing the claimant’s personal income tax liability in accordance with extant law. The defendant referred to Exhibit 10 (the claimant’s pay-slips from July 2011 to December 2011). That the Court will see that the manner of computing the claimant’s monthly remuneration changed from October 2011 when the defendant began to implement the new provisions of the law. When the pay-slip for the month of September 2011 (the last month before the implementation of the new provisions by the defendant) is compared with the pay-slip for October 2011, the Court will see that the claimant’s monthly tax increased from N86,920.68 to N352,387.50. Similarly, the claimant’s basic pay increased from N246,820.11 to N1,296,503.53. This increase in the basic pay of the claimant was as a result of the fact that many payments hitherto treated as allowances had to be brought into the basic pay of the claimant as required by the 2011 amendment. That it should be noted that the claimant has also benefited from this. The Court will see that the claimant’s terminal benefits were calculated on the basis of his new basic pay and this explains why the claimant’s two weeks’ basic salary in lieu of notice was calculated to be N648,251.77. That if the computation had been done on the basis of the claimant’s basic pay pre-October 2011 which stood at N246,820.11, the claimant would have gotten much less. That following the re-computation of the claimant’s tax liability and increase in his basic pay from N246,820.11 to N1,296,503.53, other deductions that were calculated as a percentage of basic salary naturally increased. Thus, the Court will see that the claimant’s pension contribution increased from N46,959.26 in September to N112,237.76 in October 2011. Similarly, his National Housing Fund (NHF) contribution also increased from N6,170.50 to N32,412.59. The defendant then referred the Court to the unchallenged testimony of CW1 (sic) at paragraph 5 of her witness statement dated 19 October 2015. 37. To the defendant, the Lagos State Government State Inland Revenue Service ‘Revenue Receipts’ and the Pay-As-You-Earn (PAYE) payment schedules for the months of June to December 2011 tendered by the defendant and admitted as Exhibits D14 - D20 show the increase in the PAYE tax of the claimant (listed as No. 4 in the September schedule and No. 5 in the October schedule) from October 2011. The exhibits further show increases in the PAYE taxes of all other employees of the defendant. For example, Mr Osaze Osifo’s (the former CEO of the defendant listed as No. 1) PAYE tax increased from N202,265.55 in September 2011 to N1,013,842.19 in October 2011. The Revenue Receipts show that the total amount paid by the defendant to the Lagos State Government in each of the relevant month corresponded with the total amount deducted from the salaries of the employees in Lagos State in each of those months. 38. That CW1(sic) testified at paragraphs 3 and 4 of her witness statement dated 19th October 2015 that the then CEO of the defendant called a meeting of all the employees of the defendant at the time and explained to them the consequences of the amendment to Personal Income Tax Act and that the claimant fully understood the impact of the amendment on his monthly income and this explains why the claimant did not, at any time until the filing of this suit, complain either in writing or otherwise about the so-called shortfall in his monthly pay. The claimant did not deny that a meeting was called by the former CEO of the defendant to explain to all the employees of the defendant the impact of the new PAYE tax structure. The claimant merely testified at paragraph 20 of his witness statement of 20th November 2014 that he “was never formally notified in writing of impact and implementation of new tax laws on his remuneration by the Defendant". He further testified at paragraph 21 of the same witness statement that the defendant had not provided him with a Tax Clearance Certificate (TCC). In answer to this allegation, the defendant provided Exhibits D14 to D20 which show that the deductions were remitted to the Lagos State Government. The defendant further explained through CW1 (sic), the process of obtaining a TCC which the claimant had not complied with. The defendant then submitted that an employer’s duty to compute, deduct and remit employees’ applicable PAYE tax liability to the relevant State Tax Authority is a statutory duty enshrined in section 81 of PITA. That the defendant cannot be punished for carrying out its statutory obligation in the manner required by law, which is what the claimant seeks to do by its frivolous claim for unauthorized deductions from his salaries. Based on these submissions, the defendant urged the Court to hold that the claimant’s claim for unauthorized deductions is baseless and entirely unfounded. In conclusion, the defendant to dismiss the claimant’s action in its entirety as being frivolous and lacking in merit. THE SUBMISSIONS OF THE CLAIMANT 39. The claimant adopted the sole issue submitted by the defendant for determination as well as the four sub-issues. The claimant, however, added a fifth sub-issue: whether the claimant is entitled to interest on the judgment sum at the rate of 22% per annum from 22nd December 2011 till judgment is delivered in this suit and thereafter 10% per annum until total liquidation of the judgment sum together with solicitor’s fee of N5 Million. 40. On whether the claimant’s employment validly terminated by the defendant, the claimant submitted that the defendant’s defence as to the claimant’s non-satisfactory performance of duties will not avail. That the claimant by virtue of Exhibits C26, C27, C30, C31, C32, C34, C41, C42, C43, C44, C47, C48, C52, C56, C57, C65, C70, C72, C74, C101, C112, C119, C123, C124, C128, C129, C132, C134 enumerated all his key achievements whilst in the defendant’s employment. That the claimant’s former colleagues by virtue of Exhibits CI7, C95 and C96 acknowledged the claimant’s performance at the time he worked with the defendant. But that assuming without conceding that the claimant’s performance was unsatisfactory, the next question is, whether the claimant’s employment was validly terminated. The claimant answered that it was not. That the law is settled that when an employee complains that his employment has been wrongful terminated, he has the onus: to place before the Court the terms of the contract of employment; and to prove in what manner the said terms were breached by the employer, referring to Okomu Oil Palm Co. Ltd v. Iserhienrhien [2001] 6 NWLR (Pt. 710). 41. That in the instant case, the claimant by virtue of Exhibit C2 (which is the defendant’s letter of employment to the claimant) at page 6 in the claimant’s bundle of document has tendered his letter of appointment detailing how his appointment with the defendant can be terminated whilst still on probation. That the claimant also relied on Exhibit C8/D9 (the defendant’s Human Resources Policy Guide at page 33 in the claimant’s bundle of documents). That the defendant in its argument has submitted that part of the process of confirmation is by the probationer (the claimant in the instant case) filing a formal appraisal. That Exhibit C8/D9 (the defendant’s Human Resources Policy Guide at page 33 in the claimant’s bundle of documents) is clear as to the ways of termination of employment of staff on probation: Probation: Every new employee goes through a six-month probationary period. During the period he/she is given an opportunity to determine his/her compatibility with the company and vice versa. Performance shall be assessed at the end of the probationary period to determine suitability for employment. If an unsatisfactory report is received, it will be discussed orally with the probationer by the Department Head and/or Head, PM & GS and the Probationer will be given every opportunity and encouragement to improve, within a further period of 3 months. However, if he/she fails to improve, his/her appointment will be terminated (underlining is the claimant’s). 42. Furthermore, Exhibit C2/Exhibit D1 (which is the defendant’s letter of employment to the claimant) at page 6 in the claimant’s bundle of documents provides: Probation: You will be on probation for a minimum period of six (6) months. Confirmation of your employment depends on your performance during the probation period, the satisfactory response of your references and your last employer. Your probation period may be extended for an additional period up to a maximum of three (3) months if your performance falls below the organisation's acceptable standard. If so extended, your employment automatically lapses at the extended probation period unless your employment is confirmed (underlining is the claimant’s). 43. To the claimant, by a combined reading of both exhibits, the submission of the defendant is an afterthought. Firstly, from both exhibits there was no mention of “appraisal/assessment form”. Secondly, by virtue of Exhibit D5 (The defendant’s letter dated 1st December 2011 to the claimant) which provides to wit; FW: CONFIRMATION OF EMPLOYMENT CONF APPRAISAL FBN CAP (ASST VICE PRES) (2). doc ……………………. ……………………………………… Dear Olu, Your probation period expired on 22nd November, 2011. All the pre requisites for your confirmation has been fulfilled. In view of this, kindly complete the confirmation assessment form attached herewith and forward to your immediate supervisor for assessment. Kind regards (underlining is the claimant’s). 44. That the defendant by virtue of Exhibit D5 has admitted that the conditions for the claimant’s confirmation of employment have been met. That this literally means that the basic requirement from the claimant has been met. That assuming for the sake of argument the basic requirements for the confirmation of the claimant were not met, Exhibits C8/D9 and C2/D1 provide that the defendant ought to have been given another opportunity to prove himself by an additional three months. 45. The defendant had also argued that the claim of the claimant will fail because the claimant is not a confirmed employee of the defendant. To the claimant, this submission will not avail the defendant reason being that the wordings of Exhibit C8/D9 (the defendant’s Human Resources Policy Guide) page 34 is clear as to the applicable steps to take. For ease of reference the said paragraph provides as follows: Cessation of Employment Cessation of appointment can occur as a result of a number of causes such as: Termination/Resignation: During the probationary period, employment may be terminated by either side giving two weeks notice in writing or payment of two weeks basic salary in lieu of notice…However, Officers on Vice President grade and above would be required to give three months notice or payment of equivalent amount of basic salary in lieu of the required notice of period (underlining is the claimant’s). That the claimant happened to be on the Vice President cadre by virtue of Exhibits C9A, C9B, C9C and C9D (the claimant’s pay-slips) at pages 66 to 77 of the claimant’s bundle of documents) and so ought to have been given three months or payment of equivalent amount of his basic salary in lieu of the required period of notice. 46. The claimant went on that assuming without conceding that the claimant was not orally dismissed on 8th December 2011, after the incident on 8th December 2011, prior to 15th December 2011, the claimant was absent from work from 9th December 2011 to 15th December 2011 when the claimant was invited for a meeting by virtue of Exhibit D4, the defendant did not deem it fit to comply with Exhibit C8/D9 page 33, which provides as follows: Absence from Duty: Staff is required to be present at work during all normal working hours…Employees who continually absent themselves from work without permission or lawful excuse will be sanctioned as prescribed in the Guide to Disciplinary Matters (underlining is the claimant’s). That on perusing Exhibit C8/D9 page 54 paragraph 12.1.12 Offences that attract warning letter or termination of appointment it provides: An employee may be given a written warning in respect of any of the following major cases of misconduct/negligence: Absence from the place proper and appointed for the performance of work without leave or other legitimate cause…(underlining is the claimant’s). That a combined reading of both clauses shows that the defendant had orally dismissed the claimant and that was the reason that these disciplinary measures were not applied to the claimant. 47. The claimant continued that having discharged the onus that his appointment was wrongful terminated, the remedy as to measure of damages available to the claimant is the amount the claimant would have earned had the employment continued according to contract, citing Osisanya v. Afribank (Nig.) Plc [2007] 6 NWLR (Pt. 1031) 565 at 578-579 where the apex court held that “in a master and servant relationship, the damages available to the employee is the payment of his salary and other entitlements already lawfully accruable and payable for the period for which the employee should have been given notice of termination. The damages will be the amount he would have earned if his employment was properly and validly determined. 48. 0n the argument as to whether the Court has the jurisdiction to hear and determine the claimant’s claim for defamation and whether the claimant has proved a case of defamation against the defendant, the claimant submitted that he will not want to join issues with the defendant as this is not within the Court’s jurisdiction. 49. 0n whether the claimant is entitled to a refund of the additional statutory deductions which were made from his monthly emolument between October and December 2011, the claimant submitted that the defendant did not make available any document backing their assertion that there were was a review in Personal Income Tax Act. That no email was tendered during the trial proceedings backing their assertion that a meeting was held informing staff of the new tax structure. 50. Lastly, on the issue of solicitor’s fee and pre and post-judgment interest, the claimant on the issue of interest on the amounts claimed referred to Stabilini Visioni Ltd v. Metalum Ltd [2008] NWLR (Pt. 1092) 431 to wit: “There are two types of interest awarded by the courts namely: Pre-judgment interest and Post-judgment Interest. Where interest is being claimed, the practice is to endorse the claim on the writ of summons and plead facts which support such entitlement in the statement of claim”. That the Court in Stabilini Visioni Ltd v. Metalum Ltd (supra) stated further that: “in a situation arising from commercial matters, I should think that a party holding on to the funds of another for so long without justification, ought to pay him compensation for so doing. Akpata JCA in the N.C.S.C Ltd case (supra) put the matter of the right to interest thus: “a judgment for the return of money is usually accompanied by an award of interest for the period for which it is claimed”. That in Afribank (Nig.) Plc v. Shanu [1997] 7 NWLR (Pt. 514) 637, the Court stated as follows: “The basic rule is that the payment or award of interest is based either on statute or on the agreement of parties, such as that between a bank and its customer. But where there was no expressed agreement, the court should use its discretion to award interest at a reasonable rate where the circumstances warrant it”. That the Court in Afribank (Nig.) Plc v. Shanu (supra), quoting Uwaifo JCA, made the following pronouncements on the principle guiding the award of interest: “It is not necessary for a plaintiff to claim interest in his pleadings before the court can award it in deserving cases. But it is desirable to draw attention in the pleadings to the rate of interest desired, and where evidence is necessary, to adduce it in support. That will help the judge in the exercise of his discretion to award what is appropriate”. 0n the basis of these authorities, the claimant submitted that the defendant having kept the claimant out of his funds since 22nd December 2011, the claimant is entitled to 22% interest on the said sums until judgment and thereafter at 10%. 51. The claimant also submitted that owning to the wrongful termination of his appointment, he incurred additional expenses in the sum of N5,000,000 (Five Million Naira) by engaging a Law Firm to prosecute this action on his behalf. He urged the Court to award the sum in his favour. In conclusion, the claimant urged the Court to grant all the reliefs he seeks. 52. As indicated earlier, the defendant did not file any reply on points of law. COURT’S DECISION 53. After a careful consideration of the processes filed and the submissions of the parties, I start off with the issue of this Court’s jurisdiction over relief (c), the claim for N100 Million for defamation of character. It is the case of the defendant here that this Court has no jurisdiction over defamation even if it is from the workplace. The claimant agreed with the defendant on this point. The law, however, is that parties cannot agree to confer jurisdiction on the Court over a matter where none exists. A fortiori, parties cannot agree to take away jurisdiction where one exists. The question whether this Court has jurisdiction over defamation as well as some other torts (excepting negligence and the economic torts where clearly this Court has jurisdiction) has been a vexed one. The initial position of this Court supported by a good number of its decisions was that it has no jurisdiction over defamation given that defamation can be litigated in its own right and independent of any claim in labour/employment law. The question of defamation was, however, held to be relevant only for purposes of determining the quantum of damages where an unlawful or a wrongful termination/dismissal stigmatizes the employee in the process. See British Airways v. Makanjuola [1993] 8 NWLR (Pt. 311) 276. And a number of Court of Appeal decisions agreed with this Court on the point that no jurisdiction lied in respect of defamation. However, a very recent Court of Appeal decision has upturned this viewpoint. See Medical and Health Workers Union of Nigeria v. Dr Alfred Ehigiegba [2018] LPELR-44972(CA), where the Benin Division of the Court of Appeal held that the NIC has jurisdiction over defamation arising from the workplace given the “matters incidental thereto or connected therewith” phrase used in section 254C(1) of the 1999 Constitution. The Court of Appeal even reviewed a good number of the decisions of this Court on the issue and held that they were wrongly decided. I am not unmindful that in same Medical and Health Workers Union of Nigeria v. Dr Alfred Ehigiegba, an unreported ruling in 2016 held that it is the High Court of Benin that had jurisdiction over the libel in issue. However, given the rule which says that in the event of conflict, the most recent of the conflicting decisions of the appellate court is to be preferred, I have no choice but to hold that this Court has jurisdiction over defamation. I do hold. 54. In the course of trial, the Court had raised issues as to the admissibility and/or evidential value of some of the exhibits i.e. Exhibits D3/C4, D6/C5, D7/C6, D12, D21 and D23, which were unsigned and or undated documents. Exhibit D3/C4 dated 7th December 2011 is the claimant’s explanation as to his failure to deliver on Key Strategic Timelines for IBAM Integration. It is unsigned. Exhibit D7/C6 dated 22nd December 2011 is a letter from the defendant to the claimant regarding the claimant’s completion of probation period. It tells the claimant that sequel to the expiration of his 6 months probation period, and his performance found to be below average, the defendant will not be confirming his appointment. It is, however, not signed. Exhibit D12 dated 30/01/2014 is a document from Neil McGregor of Vero Screening Ltd for the attention of Human Resources of FBN Capital. It seeks to confirm the employment history of the claimant. It is, however, unsigned. Exhibit D21 is a document that is a table with the claimant’s name with entries as to salary, allowances and perquisites of office. The source is unknown and has no relationship with the defendant. It cannot be said from the document that information on it relates to the claimant in terms of his employment relationship with the defendant or some other employer. Exhibit D23 is a letter from MainOne Cable Ltd. It is undated. 55. The argument of the defendant is that as regards Exhibits D3/C4, D6/C5, D7/C6, there is no dispute between the parties as to the authenticity of the said exhibits before this Court. The defendant, therefore, urged the Court to give full evidentiary weight to these pieces of evidence before this Court. The law is not absolute that simply because parties consented to the admissibility of a document that document is inviolably admitted. See Ezomo v. New Nigeria Bank Plc & anor [2006] LPELR-9852(CA); [2006] 14 NWLR (Pt. 1000) 624. His Lordship Rhodes-Vivour, JCA (as he then was) in Fasehun & ors v. AG, Federation [2006] LPELR-5567(CA); [2006] 6 NWLR (Pt. 975) 141 and Her Ladyship Nimpar, JCA in Brewtech Nig. Ltd v. Akinnawo & anor [2016] LPELR-40094(CA) held that an unsigned document is worthless and void. Void in law signifies a nullity. So, how can a document that is void, a nullity, be resuscitated by the consent of the parties even in terms of section 12 of the National Industrial Court (NIC) Act 2006? It is just impossible. And for an undated document, except where parol evidence is adduced as to its date, it remains invalid and so has no evidential value. See Aremu v. Chukwu [2011] LPELR-3862(CA). There is no parol evidence before the Court indicating the date of any of the undated documents in issue. The defendant argued that Exhibit D21 is merely a spreadsheet showing the computation of the claimant’s entitlement; and that the claimant has not challenged or disputed this computation. Unfortunately, the source of Exhibit D21 is not known. It would by Ezuruike v. 7UP Bottling Co. Plc [2018] LPELR-44626(CA) qualify as documentary hearsay especially as the maker is unknown. On the whole, and for the reasons given, I hold that Exhibits D3/C4, D7/C6, D21 and D23 are inadmissible and so have no evidential value. They will be discountenanced for purposes of this judgment. I so hold. 56. Exhibit D6/C5 is the employee confirmation appraisal form of the claimant. It is not signed by any officer. It was tendered as evidence that it was given to the claimant to be completed and forwarded to the claimant’s immediate supervisor for assessment. The claimant is said not to so comply. For this purpose, Exhibit D6/C5 is admissible and would be used as such. I so find and hold. 57. The defendant argued that Exhibit D12, on its face, shows that it was sent by email to: titilope.odukoya@fbncapital.com and requests an email response to: response@veroscreening.com; and that in any event, the claimant has not disputed that Vero Screening sent the document to the defendant. This Court accepts emails in evidence without the trappings of section 84 of the Evidence Act 2011 and/or the necessity of traditional signatures on them. But such on face value must be discernible as emails. See Mrs Titilayo Akisanya v. Coca-Cola Nigeria Limited & 2 ors unreported Suit No. NICN/LA/40/2012, the judgment of which delivered on 7th April 2016, Mr Ahmed Ishola Akande v. Lilygate Nigeria Ltd (The Lilygate) unreported Suit No. NICN/LA/209/2016, the judgment of which was delivered on 16th November 2017, Dorothy Adaeze Awogu v. TFG Real Estate Limited unreported Suit No. NICN/LA/262/2013, the judgment of which was delivered on 4th June 2018 and Mr Akindele Adedipe v. Oracle Software Nigeria Limited unreported Suit No. NICN/LA/214/2016, the judgment of which was delivered on 15th May 2019. I looked at Exhibit C12 carefully; and I agree with the defendant that on face value it is an email. The email address “titilope.odukoya@fbncapital.com” on the face of it is the email address of the recipient of the document. This view is reinforced by the document itself wherein it was stated reply should be to the email address, “response@veroscreening.com”. I accordingly hold Exhibit D12 as admissible. 58. The defendant denied that it defamed the claimant; and that even if it did, the claimant did not prove his case in that regard. Liability in defamation is a function of the proof of the following elements: the allegation in question must be defamatory; the defamatory statement must refer to the claimant; the defamatory statement must have been published i.e. making it known to some person other than the claimant of whom it was written or spoken; and in cases of slander, resultant damage must be proved. See Ekong v. Otop & ors [2014] LPELR-23022(SC), which held that the conditions which must be satisfied before defamation can be proved are: (1) That the defendant published in a permanent form a statement; (2) That the statement referred to the plaintiff; (3) That the statement conveys defamatory meaning to those to whom it was published; and (4) That the statement was defamatory of the plaintiff in the sense that: (a) It lowered him in the estimation of right-thinking members of the society; or (b) It exposed him to hatred, ridicule or contempt; or (c) It injured his reputation in his office, trade or profession; or (d) It injured his financial credit. 59. The point is that all these requirements must be proved if a claimant is to succeed in a claim for defamation. In claiming as per relief (c) for N100 Million for defamation of character, can the claimant be said to have proved all of these requirements? The answer is an emphatic NO. To start with, the words uttered, “you are not a man. I am not treating you like a man because you do not have the balls”, were words spoken to the claimant. This qualifies the defamation to be one that is slander, for which damage must be proved. There is no such proof before the Court. Secondly, the said words are not on face value defamatory. They can only be defamatory if by innuendo they are understood by an ordinary person to be a defamatory imputation. The claimant did not establish this. Thirdly, none of the two persons, Kehinde Alao and Victor Odiaka, in the presence of whom the said words were uttered, was called as a witness by the claimant. Consequently, there is no proof before the Court that the defamatory words were published. Relief (c) must thus fail on merit. I so find and hold. It is accordingly dismissed. 60. By relief (a), the claimant seeks for a declaration that his employment with the defendant should be deemed as having been confirmed by virtue of the fact that after he completed his six months’ probation period in November 2011, the defendant allowed and/or permitted him to continue working without any complaint whatsoever. Exhibit C2/D1 (the defendant’s offer of employment to the claimant) dated 31st March 2011 put the claimant on probation in the following words: You will be on probation for a minimum period of six (6) months. Confirmation of your employment depends on your performance during the probation period, the satisfactory response of your references and your last employer. Your probation period may be extended for an additional period up to a maximum of three (3) months if your performance falls below the organisation's acceptable standard. If so extended, your employment automatically lapses at the extended probation period unless your employment is confirmed. By this provision, confirmation amongst other things depends on the claimant’s performance during the probation period. This probation period may be extended up to a maximum of 3 months if performance falls below acceptable standard. The question that arises here is when would performance be considered to have fallen below the organisation’s acceptable standard in order to be able to grant an extension of up to a maximum of 3 months? This is where Exhibit C8/D9 sheds more light. 61 Exhibit C8/D9 (the defendant’s Human Resources Policy Guide) deals with the termination of employment of a staff on probation: It provides thus: Every new employee goes through a six-month probationary period. During the period he/she is given an opportunity to determine his/her compatibility with the company and vice versa. Performance shall be assessed at the end of the probationary period to determine suitability for employment. If an unsatisfactory report is received, it will be discussed orally with the probationer by the Department Head and/or Head, PM & GS and the Probationer will be given every opportunity and encouragement to improve, within a further period of 3 months. However, if he/she fails to improve, his/her appointment will be terminated. From this provision, it will be seen that performance shall be assessed at the end of the probationary period to determine suitability for employment. If performance is unsatisfactory, then the defendant would decide whether to grant the extension of up to a maximum period of 3 months. 62. Exhibit D5 is the defendant’s email dated 1st December 2011 to the claimant. It emanated from DW1 and has as subject, “Confirmation of Employment”, and provides to thus: Your probation period expired on 22nd November, 2011. All the pre requisites for your confirmation has been fulfilled. In view of this, kindly complete the confirmation assessment form attached herewith and forward to your immediate supervisor for assessment. The evidence of DW1 under cross-examination on the process of confirmation ran thus: After the 6 months probation, provided the number of pre-requisites are met e.g. background checks from previous employer(s), referee reports are received, etc a confirmation form will be issued to the probationer and he is expected to send that document to his supervisor for assessment. Afterwards, when the supervisor completes the assessment, the form is returned to the probationer for his comments, which form will then be returned to the supervisor. At this point, the probationer and supervisor may have a verbal discussion of the assessment. Then there will be a recommendation from the supervisor as to whether the probationer should be confirmed or the probation period extended or the employment should be terminated. All this while, the employee remains in employment. 63. This evidence of DW1 accords with the combined spirit of Exhibits C2/D1, C8/D9 and D5. The claimant was given the confirmation form to fill, but he refused. Under cross-examination, the claimant accepted that the content of the provision as to probation was part of the process needed for his confirmation. The claimant went on under cross-examination to acknowledge that he did not complete the portion of the assessment form that he was required to complete. By refusing to complete and forward the confirmation form (Exhibit D6/C5), the claimant cannot argue that because all pre-requisites were fulfilled he thereby must be deemed to be confirmed simply because the probation period had elapsed. To accept this argument of the claimant would imply that the possibility of extending the period of probation by a maximum of 3 months is an impossibility. Exhibit D6/C5 puts the claimant’s date of employment as 23rd May 2011. This means that 6 months probation would elapse by 3rd November 2011. In fact, Exhibit D6/C5 indicated the claimant’s period of current Department to be 6 months 24 days. This means that the claimant was 24 days into his employment after his probation period elapsed. And by 22nd December when his employment was said to have been terminated, he was a month and 22 days (less than the maximum 3 months he could still be on probation) out of his 6 months probation. So, is the claimant working for a period of one month and 22 days sufficient to yield to the conclusion that he should be deemed to have been confirmed? I do not think so. If anything, the inference must be that he had an extension to his period of probation, as Exhibit C8/D9 allows an extension of the period of probation by not more than 3 months. In any event, case law authority exists that confirmation will be implied only when the employer acted unreasonably in not confirming the employee at the end of the probation period. In the words of The Council of Federal Polytechnic, Ede & ors v. Olowookere [2012] LPELR-7935(CA): The appellant had delayed unnecessarily in making up their minds whether to terminate or confirm respondent’s Probationary appointment. By keeping him in his employment and continuing to pay him for four months after the probationary period of three years had expired, they would be deemed by operation of law to have confirmed his appointment, and the doctrine of “estoppels by conduct” would operate to prevent the appellant from alleging and treating him as if he was still on probation. “Delay defeats Equity”. In the instant case, the defendant cannot be said to have acted unreasonably. If anyone can be said to have acted unreasonably, it must be the claimant. He it was who scuttled the confirmation process by not completing and forwarding Exhibit D6/C5, the confirmation appraisal form. The claimant cannot turn around now and urge the Court to deem his employment as confirmed. Relief (a) must thus fail. It fails and so is hereby dismissed. 64. Relief (b) is a claim for an order setting aside the defendant’s purported letter of termination headed “Completion of Probation Period” dated 22nd December 2011. The case of the claimant is that his probation ended on 22nd November 2011. He was allowed to continue work, though he was not assigned IT Projects with defined timelines critical to the successfully implementation of the final phase of IBAM integration. However, on 6th December 2011 he was issued a query, which he responded to. That upon receipt of his response to query, the CEO summoned him to Human Resources Department on 8th December 2011 where he was orally summarily dismissed in the presence of the HR and some staff. That it was to cover this unfair and unjust treatment meted to him on 8th December 2011 that the defendant belatedly emailed a letter of termination of employment to him on 22nd December 2011. The letter of 22nd December 2011 is Exhibit D7, which I earlier discountenanced as it is unsigned. On face value, there is no proof that it is an email as stated by the claimant. To the defendant, the claimant left the offices of the defendant on 8th December 2011 and did not return until 15th December 2011. The evidence of CW2 under cross-examination is that on 8th December 2011, Mr. Osage Osifa, the then CEO of the defendant walked the claimant out of his office and the IT Department. To CW2, he recalls the words of the CEO to be: “Olu Fasan, I said you should leave the building”; and that the claimant proceeded to the door and that was the last CW2 saw of him in IT Department. CW2 was then asked to read out paragraph 12 of the statement of facts, which he did. At first he said that the said paragraph 12 is consistent with his testimony. He, however, changed and said it does not tally with his testimony. This naturally puts a dint on the testimony of CW2. 65. The claimant argues that he was orally dismissed. And that his absence from work, which ought to have been penalized by the defendant in terms of disciplinary action taken against him for being absent from work, was not so penalized. To the claimant, that the defendant did not so discipline him merely reinforces his case that he was orally dismissed. To start with, the law frowns on oral dismissal or oral termination. That is why section 11(3) of the Labour Act, for instance, provides that any notice for determination of a contract of employment for a period of one week or more shall be in writing. Secondly, while an employer has the right to discipline an erring staff, there is no compulsion or obligation as to that. No rule of law says that an employer must discipline a staff. It is even within the rights of the employer to condone an infraction, as was the case in Ekunda v. University of Ibadan [200] 12 NWLR (Pt. 681) 220 CA, ACB Plc v. Nbisike [1995] 8 NWLR (Pt. 416) 725 CA, Nigerian Army v. Brig. Gen. Maude Aminu-Kano [2010] LPELR-2013(SC); [2010] 5 NWLR (Pt. 1188) 429; [2010] 1 MJSC (Pt. I) 151 and Lawrence Idemudia Oborkhale v. LASU [2013] 30 NLLR (Pt. 85) 1 NIC, or mete out a lesser punishment for it, as held in Udegbunam v. FCDA [2003] 10 NWLR (Pt. 829) 487 SC. Even if the claimant interpreted the words, “I said you should leave the building” said to him by the CEO to be dismissal, that is not sufficient to hold it to be so. As the defendant argued, when the claimant was asked to leave the building, he was not asked to submit all company properties in his possession, the usual thing that would happen once a staff is dismissed. The claimant himself under cross-examination testified that on 8th December 2011, when he was dismissed, he was not asked to return company properties in his possession; and that he retained the laptop, identity card, modem and official car. However, that it was on 22nd December 2011, when the company wrote terminating his appointment, that he was asked to return company properties in his possession. So it cannot be that the claimant was dismissed when he was asked to leave the building. 66. I said earlier that the letter of 22nd December 2011 is Exhibit D7/C6, which I discountenanced for not being signed. Relief (b) prays that this letter be set aside. I indicated earlier that Fasehun & ors v. AG, Federation [2006] LPELR-5567(CA); [2006] 6 NWLR (Pt. 975) 141 and Brewtech Nig. Ltd v. Akinnawo & anor [2016] LPELR-40094(CA) held that an unsigned document is worthless and void. Can a void document that is nullity in the eyes of the law be set aside? Exhibit D7/C6 being void and a nullity does not need a specific order setting it aside. All that can be done is to pronounce it a nullity, which I hereby do. 67. Clause 5.0 of Exhibit C8/D9 (the defendant’s Human Resources Policy Guide) deals with conditions of employment. In what should be clause 5.9, under “Cessation of Employment” (at page 17 of Exhibit D9), it is provided thus: Cessation of appointment can occur as a result of a number of causes such as: Termination/Resignation: During the probationary period, employment may be terminated by either side giving two weeks notice in writing or payment of two weeks basic salary in lieu of notice. After confirmation, employment may be terminated by either side giving the other one-month’s notice or payment of equivalent amount of basic salary in lieu of the required notice period. However, Officers on Vice President grade and above would be required to give three months notice or payment of equivalent amount of basic salary in lieu of the required notice of period (the emphasis is the Court’s). 68. The claimant had relied on this clause when he submitted that he is on the Vice President cadre and so is entitled to be given three months’ notice or paid three months’ salary in lieu of notice. To be able to make this submission, the claimant’s counsel deliberately left out the italicized part of the just quoted clause 5.9 of Exhibit C8/D9. In law, the use of the word “however’ signifies a qualification to a proposition or statement, a proviso or exception of sort. So when clause 5.9 talked of “However, Officers on Vice President grade and above would be required to give three months notice or payment of equivalent amount of basic salary in lieu of the required notice of period”, this must be a qualification or proviso or exception to something. What is that thing? Two things came up before the said qualification/proviso/exception i.e. provision as to probation, and provision as to confirmation. That on confirmation is the second of the things, coming shortly before the qualification/proviso/exception. So by literal interpretation, the statement, “However, Officers on Vice President grade and above would be required to give three months notice or payment of equivalent amount of basic salary in lieu of the required notice of period”, coming shortly after the statement, “After confirmation, employment may be terminated by either side giving the other one-month’s notice or payment of equivalent amount of basic salary in lieu of the required notice period”, the italicized portion of clause 5.9, which the claimant’s counsel deliberately left just so that he can get judgment, must be read to qualify the statement on confirmation. Certainly not the first one on probation. This being so, those on Vice President cadre (the claimant said he belongs to this cadre) instead of giving or being given one month’s notice or one month’s salary in lieu of notice, are to give or be given three months’ notice or three months’ salary in lieu of notice. This is the true import of clause 5.9, not the jaundiced version of the claimant’s counsel. I have always complained about counsel who set out to deliberately mislead the Court just so that they can get judgment. Even if the claimant’s counsel wanted to push his views as just done, why would the claimant’s counsel not quote clause 5.9 in full? Why leave out a vital part if not to mislead the Court? Or is the claimant’s counsel thinking that the Court will be lazy and not look at the full quotation? 69. Relief (d), the prayer for N2,271,787.09 as special damages as stipulated in the claimant’s contract of employment dated the 31st March 2011 is hinged on the claimant’s reasoning that he is a confirmed staff. Since I have held that he is not, relief (d) cannot be granted. It fails and so is hereby dismissed. 70. Since reliefs (a) to (d) have all failed, there is no point considering reliefs (e) and (f), the claims for interest and solicitor’s fees. They both fail and so are dismissed. 71. The claimant had alleged that certain unauthorized deductions were made from his remuneration between October and December 2011 for which he claims the sum of N1,358,552.70. By Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 - 6 SC (Pt. II) 47: A claim is circumscribed by the reliefs claimed. The duty of a Plaintiff therefore is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. He may, at the end of the day obtain all the reliefs claimed or less. He never gets more. Nor does he obtain reliefs not claimed. A court is therefore bound to grant only the reliefs claimed. It cannot grant reliefs not claimed. In the instant case, the claim for unauthorized deductions are not reflected in any of the reliefs of the claimant. This means that, given the rule that a claim is circumscribed by the reliefs claimed and that a court is not bound to give a relief not claimed, the claim for unauthorized deductions is not sustainable and so must fail. It is accordingly dismissed. 72. In all, the claimant’s case fails in its entirety. It is accordingly dismissed. 73. Judgment is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip, PhD