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This action was commenced via a complaint dated the 15th of September, 2011 and filed same date. It was accompanied by the Statement of Facts dated the 12th day of September, 2011 and filed on the 15th September, 2011. The Witness Statement on Oath of the complainant with its exhibits were dated and filed the 15th September, 2011; and the Complainant’s List of Witnesses was also filed same date. Via a Treasury Receipt No. G002150708 dated the 5th of October, 2011; the Defendants filed a memo of appearance through their counsel. On the 22nd November, 2011, the Defendants through their counsel filed a Motion on Notice with an affidavit in support dated the 21st of November, 2011 asking for enlargement of time and adeeming order to regularize the processes already filed in the suit but which were out of time. The Joint Statement of Defence of the Defendants dated the 21st of November, 2011 was however filed on the 22nd; likewise the List of Documents to be relied Upon at Trial and the List of Witnesses of the defendants. And the claimant filed his Claimant’s reply to the Joint Statement of Defence dated the 18th January, 2012 on the 19th January, 2012. Subsequently, two witness statements on oath were filed by the defendants’ witnesses on the 17th February, 2012 and the 26th April, 2012. In the mean time, the reliefs claimed by the claimants in his Statement of Facts at paragraph 21 thereof are as follows: i. A Declaration that the National Executive Council [NEC] of the 1st Defendant can only terminate the employment of the Plaintiff in accordance with the 1st Defendant’s constitution and as envisaged in its Conditions of Services 1999 (as amended). ii. A Declaration that the letter of the 24th May, 2011 summarily terminating the employment of the claimant was in violation of the 1st Defendant’s constitution and Conditions of Services and therefore wrongful in law. iii. A Declaration that [sic] letter of Termination of Employment dated 24th May, 2011 is null and void having been in violation of the 1st Defendant’s constitution and conditions of services. iv. General and aggravated damages of N5 million for wrongful termination of employment. v. Cost of this action in the sum of N5 million Naira, being legal and professional fees to Messrs Okunade Olorunda SAN & Co., for filing and prosecution of this action. vi. 10% interest on judgment sum from date of judgment until fully liquidated. Meanwhile, the case first came up on the 21st October, 2011 with the counsel to two sides present while the claimant was also present, the 1st defendant was represented and the 2nd was absent. The matter was adjourned to the 6th of December, 2011 with a directive that parties should file and serve all necessary papers before that date. The matter however came up on the 29th of November, 2011. Counsel to the two sides were present. On this date, the defendants/applicants moved their motion for extension of time and deeming order dated the 21st November, 2011. The motion not being opposed by the claimant/respondent’s counsel was accordingly granted. Thereafter, the Court gave the claimant 7 days within which to respond to the processes deemed properly filed and served and the case was thereafter adjourned to the 20th of January, 2012 with a directive that all necessary processes must be filed before the 13th of January, 2013. However, the matter came up next on the 19th January, 2012 earlier than adjourned. On this date, the counsel to all the parties were present in Court. On this same day, the learned Senior Advocate to the claimant moved the Court to allow the claimant to rely on the Witness Statement on Oath already filed and served on the other side. This application was not opposed by the counsel to the other side but the counsel to the other side applied that they equally should be given time to file and serve their own witness statement on oath. The two applications were accordingly granted. And in consequence the other side was given 14 days within which to file and serve their witness statement on oath whilst the case was adjourned to the 27th February, 2012 for hearing. The matter came up on the 27th February, 2012 as adjourned. However, before the case was opened, the learned silk appearing for the claimant urged the Court to deem as properly filed and served the Claimant’s Reply to the Defendants’ Statement of Defence filed out of time as a result of the general strike. The other side not objecting, the prayer was granted with a directive that the necessary penalty be paid and receipt filed before the 2nd of March, 2012. Thereafter, the case was opened with the Claimant’s counsel calling CW who took oath with the Holy Bible. After the normal preliminaries, he stated that as at the time his appointment with the 1st defendant was terminated he was a Research Officer. He went further to state that on the 15th of September, 2011 he made a Witness Statement on Oath and that he relied on it as his testimony in Court. He stated that he wished to tender all the documents exhibited therein. There being no objection from the counsel to the other side, the documents in issue were admitted as follows: 1. NLC letter of appointment dated the 26th of May, 2009 admitted as Exhibit ‘A’; 2. Another letter headed Re: Letter of Appointment dated the 3rd June, 2009 admitted as Exhibit ‘B’; 3. The Condition of Service of the NLC, 1999 admitted as Exhibit ‘C’; 4. The Constitution of the NLC with motto “Labour Creates wealth” admitted as Exhibit ‘C1’; 5. Letter dated 24th May, 2011 with heading “Termination of Employment” admitted as Exhibit ‘C2 – C7’; 6. A bundle of documents called “Transcription of Proceeding of Meeting of the Central Working Committee of the NLC held on May 23, 2011” admitted as Exhibit ‘D1 – D23’; 7. Document titled “Sectional Report Presented to State Executive Council held on 9th June, 2011” at NLC Secretariat, Apo admitted as Exhibit ‘E1 – E7’; 8. Internal memo titled “Re: Termination of Appointment dated June 27, 2011 admitted as Exhibit ‘F1 – F2’; 9. The letter written on the letter-headed paper of “Okunade Olorunda & Co. dated the 20th July, 2011 and titled “Re: Termination of Employment Contract of Lawrence Onah” admitted as Exhibit ‘G1 – G2’; 10. Letter written on the letter-headed paper of Bamidele Aturu & Co. dated 4th August 2011 and titled “Re: Termination of Comrade Lawrence Onah” admitted as Exhibit ‘H1 – H2’; and 11. A Deposit slip of Zenith Bank PLC No. 0582276 for the payment of the sum of N 645, 358.65 on 17-08-11 admitted as Exhibit ‘I’. The examination-in-chief continued and CW stated that he had an audio recording of the proceedings that has been transcribed and admitted as Exhibit ‘D1 – D23’. He urged the Court to play it to enable it know what actually transpired in Exhibit ‘D1 – D23’. Counsel applied to tender the audio recording. The defendants’ counsel opposed the application. This application was opposed by the defendants’ counsel placing reliance on subsections [2], [3], [4] & [5] of section 84 of the Evidence Act, 2011 which state the condition precedent to the tendering of this type of evidence. Counsel argued that these conditions have not been met before attempt was made to tender it. Counsel submitted further that the evidence sought to be tendered is prematurely brought before the Court. Counsel also submitted that in any event, Exhibit ‘D1 – D23’ has been tendered by the witness and was not opposed. Counsel further referred the Court to subsection 4 [a], [b], & [c] of section 84 of the Evidence Act. Counsel finally urged the Court to reject the audio recording. In reply, the counsel to CW argued that what the defendants did in paragraph 1 of their Statement of Defence was a general denial whereas in paragraphs 10, 11, 12, & 13 of the Statement of Facts and paragraphs 10, 11, 12, 13, and 14 of the Witness Statement on Oath, the audio recording was pleaded. Therefore, section 84 being relied upon by the defendants is not relevant here but only relates to computer-generated evidence. Counsel to CW relied on CHIEF OJO MADUEKE V. PRINCE AMADI OKOROAFOR [1992] 9 NWLR [PT. 263] P. 69 AT 81 & 83 PARAS A – B AND PARA. H. Counsel therefore submitted that once a piece of evidence is relevant it is admissible even if it is stolen and referred the Court to MUSA SADAU V. THE STATE [1968] NWLR [SIC] P. 208 AT 2012 where the Supreme Court held that it was less concerned about how evidence or a document is procured but that it is its relevance that governs its admissibility. Counsel therefore urged the Court to dismiss the objection raised by the defence for the following reasons: (1) The audio cassette was pleaded; (2) Notice to produce was served on the respondent; (3) Proper foundation was laid for its admissibility; and (4) It is relevant by section 91 of the Evidence Act and by section 12 [2] [b] of the National Industrial Court Act, 2006 in the interest of justice. In reply on points of law, the defendants’ counsel submitted that the authorities cited by the learned silk are not relevant to the case at hand. The Court after listening to the two sides held that in the interest of justice, that the audio cassette is admitted in evidence as Exhibit ‘J’ with a rider that if at the end, the Court finds that it was not supposed to have been admitted, it will be expunged at judgment writing stage. The receipt of payment to the Chambers of Okunade Olorunda & Co. was tendered and admitted without objection as Exhibit ‘K’. Thereafter, CW closed his case; and the matter was adjourned to 19th and 20th April, 2012 for further hearing. On the said 19th of April, 2012, the matter came up as adjourned. While the claimant and the 1st defendant were present, the 2nd defendant was absent. The counsel to the two sides were also in Court. And the counsel to the defendants informed the Court that the matter was for cross-examination. Under cross-examination, CW responded that in the termination letter he was not accused of any wrong doing. He went further to affirm that he instructed a lawyer to write his employer when his employment was terminated. And he admitted that he had been a journalist for many years before he joined the services of the 1st defendant and that he had been with the 1st defendant for more than two years before his employment was determined. He identified the letter his solicitor wrote to the 1st defendant via the attention of the 2nd defendant. He also admitted that he is the author of Exhibit ‘I’. CW went on to testify under cross-examination that Exhibit ‘I’ is not in reference of his three months payment in lieu of his retirement benefit and other entitlements while in the service of the 1st defendant. He stated that while in the service of the 1st defendant he was not engaged in any other business. He replied that it was not every time his salary was paid to his account that he received alert. He admitted that he knew all the account staff in the service of the 1st defendant up till the time his appointment was terminated. He admitted that he had the phone numbers of some of the account staff while he did not have the numbers of some equally. He stated that he had the phone numbers, of the Head of Accounts: Comrade Segun, Comrade Chinyere and Comrade Happiness. He replied that after the determination of his employment he never called Comrade Happiness in respect of monies paid into his account as his entitlements and three months notice. He replied that no, he did not call Comrade Happiness to tell her that he received any alert indicating that money has been paid into his account in respect of his entitlements and three months salary in lieu of notice. He replied to another question that he paid cash and that this was not from his salary account. He admitted that his counsel wrote to the 1st defendant and that the defendants’ counsel wrote a letter to his counsel. He answered yes that he saw the letter from his counsel on the 18th August, 2011. Defendants’ counsel sought to tender the said letter dated the 18th of August, 2011 marked for the attention of Anthony Itejere Esq. there being no objection from the claimant’s counsel, the letter was admitted as Exhibit ‘XX1’. Continuing with the cross-examination, CW answered that he was not in the meeting contained in Exhibits ‘D’ and ‘D1’ respectively. The cross-examination was brought to an end. There was no re-examination. And thereafter, the case was adjourned to the following day, being the 20th of April, 2012, as from 2 pm. The matter came up as adjourned. While the counsel to the claimant was in Court when the case was called, the counsel to the defendants only came in after the case had already been called. He subsequently apologized for the absence of the 2nd defendant. He also apologized for the 1st defendant who just came in. Counsel to the defendants submitted that since the witness they listed is not in court, his evidence was no longer relevant. He said in place of the absentee witness, he intended to call one Comrade Happiness. He therefore urged the Court to exercise its power under Order 5 of the Rules of this Court in the interest of justice to allow the said Comrade Happiness to testify for the defendants. This application was opposed by the counsel to the claimant. And as a result of the opposition, the defendants’ counsel therefore requested for a short adjournment to file a witness statement on oath. And this application was not opposed by counsel to the other side but with a rider that he would be asking for cost of N50, 000.00. This, the other side opposed and the Court made it a cost in cost. Consequently, the Court therefore ordered that application for withdrawal of Comrade Lakemfa as a witness is granted while the defendants are allowed to substitute him with Comrade Happiness; and the said Comrade Happiness was directed to file her witness statement on oath and serve the claimant within 7 days from the 20th of April, 2012. The case was thereafter adjourned to the 25th of May, 2012 for further hearing between 1 – 4 pm. On this very day, the case came up as adjourned. While the claimant was present the 1st and 2nd defendants were absent. However, the counsel to the defendants informed the court that he was sick and had discussed this with his colleague on the other side; and that as a result he would not be able to go on. This application was seriously opposed by the counsel to the claimant while the counsel to the defendants insisted that he could not go on. And the Court looking at the whole circumstances came to the conclusion that a ground of health is sufficient to grant an adjournment. The case was consequently adjourned to 5th of June, 2012. On the 5th of June, 2012 the matter came up as adjourned. The defendants’ counsel opened his case by calling on DW1. DW1 was sworn on the Holy Bible and observed all the necessary preliminaries. She testified that she knew all the parties in the case and that the claimant was an NLC staff. She admitted that she could remember that on the 26th April, 2012 she made a witness statement on oaths. She said this was the said statement on oath. Counsel thereafter sought to tender the statement as an exhibit in the case and there being no objection, the Statement was admitted as Exhibit ‘DD’. Counsel subsequently urged the Court to admit exhibit ‘DD’ as the witness’ evidence in Court. Thereafter, the counsel to the defendants closed his examination-in-chief. Claimant’s counsel commenced cross-examination. DW1 said she came into the employment of the 1st defendant in 2005. She stated that she was not conversant with the conditions of service and the constitution of the 1st defendant. She retorted that she could not say whether the employment of a staff was rightly or wrongly terminated and that she was not in a position to say whether the employment of the claimant in this case was rightly or wrongly terminated. On further cross-examination, DW1 stated that she paid a cheque into the account of the claimant after the termination of his appointment. She said she paid in the cheque on the 14th of July, 2011. She said she could not remember the interval between the time the employment of the claimant was determined and the time he paid in the cheque. She said she did not know the date the employment of the claimant was terminated. She answered that she knew that the claimant received the sum contained in the cheque paid into his account and returned same into the 1st defendant’s account. She said she did not know how much the claimant paid back into the 1st defendant’s account. She said all she knew about this case was that she was the one who paid the cheque into the claimant’s account. She said that day the claimant called and asked whether she was the one who paid the cheque into his account and that she answered yes, whereupon the claimant asked why she did not tell him. This was the end of the cross-examination and there was no re-examination. The case was thereafter adjourned to the 7th of August, 2012 for adoption of written addresses. On this date, the matter came up as adjourned. As there were still issues to be cleared on the final written addresses filed by the parties, the case was further adjourned to the 26th October for the adoption of written addresses. The case however came up for adoption of written addresses on the 12th of December, 2012. The counsel to the claimant and defendants adopted their final written addresses respectively. And the case was adjourned to the 28th of February, 2012 for judgment. Consequently, the next thing is to review the final written addresses of the counsel to the two sides; and we shall start with that of the defendants which was filed first. The defendants filed their joint final written address which is dated 17th June, 2012 on the 11th of July, 2012. In arguing the final written address, the counsel to the defendants distilled the following issues for the determination of the case: 1. Whether the defendants can terminate the employment of the claimant without recourse to the claimant for good reason or for no reason. 2. Whether the claimant is entitled to more than three months salary [sic] in lieu of notice and the implication of rejecting same by the claimant. 3. Whether this honourable court can force the defendants to keep/retain the services of the claimant against the defendants’ wish. Issues No. 1 and 2 were argued together. Counsel to the defendants commenced his arguments by submitting that the defendants can terminate the claimant’s employment because the employment relationship between the claimant and the defendants is that of master/servant relationship. Counsel argued that since the claimant tendered an amended version of the 1st defendant conditions of service without giving reason for tendering a different document it follows that this court is precluded from looking at the document because if it does, it would amount to speculation which a court is precluded from doing. Counsel referred the Court to ISAH V. STATE [2006] 32 WRN 57; R. BENKAY LTD V. CADBURY NIG. LTD [2005] 16 WRN 117 AT 145. Counsel submitted that the claimant had testified that he was given a copy of the amended 1999 conditions of service of the 1st defendant and that this Court is restricted to the evidence before it. He cited TRADE BANK PLC V. DELE MORENIKE LTD [2005] 11 WRN 53 AT 69 and OVERSEAS CONSTRUCTION CO. LTD V. CREEK ENTERPRISES [NIG.] LTD [1985] 3 NWLR [PT.13] 407 AT 414; which are to the effect that when a court engages in speculation, it abandons its duty. Counsel therefore urged the Court not to give effect to this since it was not the document pleaded by the claimant that was tendered and that a party cannot set up a different case from the one pleaded. Counsel therefore referred the Court to N.N.P.C. V. OLAGBAJO [2005] WRN 59 AT 80. Counsel submitted also that because the document in issue was not signed, the court cannot give it any evidential value. On this point counsel referred the Court to FASEHUN V. ATTORNEY-GENERAL OF THE FEDERATION [2006] 43 WRN 99 AT 120, which held that an unsigned document is worthless and void. Counsel therefore submitted that, because Exhibits C, C1, D and E [the 1999 Condition of Service, the 1st defendant’s constitution, transcription of proceedings of the CWC Meeting of the NLC held on 23rd May, 2012 and marked as Exhibits D and E] were not signed, they are useless. Counsel further submitted that in the event that the Court decides to use the 1999 condition of service, the relevant portion is Chapter 3 which deals with termination of employment prematurely, which allows termination of appointment of staff of the 1st defendant at any time once three months notice or salaries in lieu of such notice is given. Counsel submitted that the defendants complied with this by giving the claimant three months salaries in lieu of notice which the claimant claimed to have rejected. The defendants’ counsel went further to argue that since the contract of service is the foundation of an employee’s case, an employee that failed to produce his contract of service as in this case loses his case. Counsel referred the Court to NIGERIA GAS CO. LTD V. DUDUSOLA [2005] 36 AT 67. Counsel argued that since the nature of employment in issue is master/servant, the employer retained the right to terminate such employment at any time with or without reason provided the required notice is given; and that where the employer offers a reason, the court will not look into the cogency of such reason. On this line of reasoning, counsel relied on FAKUADE V. O.A.U.T.H. [1993] 5 NWLR [PT. 291] 47; N.N.P.C. V. OJO [2005] 22 WRN 77; and BAMGBOYE V. UNILORIN [1999] 10 NWLR [PT.622] 290. Based on the above submissions, counsel urged the Court to resolve issues Nos. 1 & 2 in favour of the defendants and against the claimant. On Issue No. 3, the counsel to the defendants argued that since the employment of the claimant is of the nature of master/servant relationship, the Court cannot foist the servant on the master. Counsel relied on OPUTO V. N.N.P.C. [2001] NWLR [PT. 68] 552. Counsel submitted further that since the employment of the claimant was not terminated as a result of participation in union activities, which is the only exception whereby an employee could be foisted on an unwilling employer, the determination of the employment of the claimant remains valid. Based on the totality of the submissions of counsel, this Honourable Court was finally urged to dismiss the case of the claimant with substantial cost in favour of the defendants. Having carefully summarized the submissions of the defendants’ counsel as contained in his final written address, it is now the turn of the reply of the claimant to this. The claimant titled his reply “Claimant’s Final Address”. And it is dated 31st of July, 2012 and filed the 1st of August, 2012. In arguing this Final Address, the claimant counsel formulated 3 Issues for the determination of the case. The issues are as reproduced below: 1. Whether this court can inquire into the reason(s) given by the 1st Defendant for the termination of the Claimant’s appointment. [sic] 2. Whether on the state of evidence, the summary termination of the Claimant’s appointment was not wrong in law? 3. Whether the Claimant is not entitled to special, general and aggravated damages in this [sic] circumstance of this matter in addition to his salaries and entitlements unpaid. [sic] The claimant’s counsel commenced on Issue No.1 as distilled above, by submitting that contrary to the assertion of the defendants’ counsel that, the Court cannot inquire into the cogency of the reason for sacking an employee in a master/servant relationship that, the Court can actually inquire into such reason, once it has been offered. Counsel placed his reliance on ANGEL SPINNIN & DYEING LTD V. AJAH [2000] 13 NWLR [PT. 685] P. 532 AT 554, PARA. A.; where it was held that once an employer gives a reason, such reason must be plausible, to ground his submission. Counsel also cited N.E.P.A. V. EBOIGBE [2009] 8 NWLR [PT. 1142] P. 150 AT 162, PARAS. D – G; to the same effect. Counsel submitted that flowing from the above, the Court can inquire into the reason given particularly in this case where the claimant has alleged that the reason offered was just a façade to cover up the breach of the claimant’s constitutional or legal rights in the manner of termination of his appointment. Counsel submitted that in the instant case, the reason offered was contained in Exhibit C2 and that it was to the effect that the claimant’s appointment was terminated a result of the reorganization going on in the 1st defendant. Counsel argued that by paragraphs 10, 11, 12 and 14 of the claimant’s Statement of Facts, the reason given by the defendants for the termination of the claimant’s appointment is shown to be false as the termination was a punitive measure dished out by the 1st defendant on an allegation that the claimant attended an international conference with another staff on behalf of the 1st defendant without authorization. And that this was against advice from members, who attended the CWC Meeting of 23rd May, 2011 where this issue was discussed, that the claimant be given fair hearing by being called upon to respond to the allegation, which the 1st defendant refused to heed. Counsel submitted further on this that evidence was led to show the truth of the above assertion via Exhibits J and D1. Counsel therefore submitted that an examination of the reason given by the 1st defendant in Exhibit C2 in juxtaposition with the state of pleading whereby the reason was challenged; it became imperative that the Court inquired into the plausibility of the reason offered. Counsel also submitted that by reason of failure to give him the opportunity to respond to the allegation on which his appointment was determined, the defendants have breached his civil rights. Counsel rounded up submissions on Issue No. 1 by urging the Court to resolve it in favour of the claimant and hold that the Court has the vires to inquire into the reason offered for the termination of his appointment. Having rounded up on Issue No. 1, the claimant’s counsel moved on to Issue No. 2 as distilled above. Commencing arguments thereto, counsel cited ZIIDEEH V. R.S.C.S.C. [2007] 3 NWLR [PT. 1022] 554 AT 570 PARAS. A – D; where it was held that in an allegation of wrongful termination of appointment, the employee has the burden to establish that: [1] he is an employee of the 1st defendant, [2] the terms and conditions of his employment, and [3] that the 1st defendant was in breach of the terms. Counsel submitted that the first of these preconditions is satisfied in that it is a common ground between the parties to the suit that the claimant was an employee of the 1st defendant before the determination of his appointment. Claimant through his counsel opined that the second precondition was met by pleading the 1st defendant’s conditions of service via Congress Conditions of Service, 1999 and his letter of appointment which contains his contract and conditions of service with the 1st defendant. Counsel submitted that the claimant also tendered in evidence Exhibit C which is titled “Nigeria Labour Congress [NLC] Conditions of Services [1999]; and that this was not challenged by the defendants’ pleadings nor controverted in their evidence in Court. Counsel submitted that it was therefore surprising that the counsel to the defendants now challenged this piece of evidence in his address by arguing that the Court should discountenance it because it was not signed. Counsel further submitted that the said Exhibit C is in form of a brochure. It was submitted that Exhibit C does not require the signature of the defendant to make it valid. Counsel submitted that Exhibit C was tendered unopposed as the terms and conditions of the 1st defendant which was given the claimant by which 1st defendant and upon which he founded his claim. Counsel further submitted that there was no cross-examination regarding the authenticity of Exhibit C by the defendants’ counsel. Counsel submitted that arising from the foregoing; the law is that a counsel address cannot take the place of evidence that was not led. Counsel relied on A.N.P.P. V. USMAN [2008] 12 NWLR [1110] P.1 AT 91, PARAS. A – E; to ground his submissions just recounted. Counsel went further to canvass that since the claimant pleaded at paragraph 6 of his Statement of Facts that his general conditions of service was expressed to be governed by the “Congress Conditions of Service 1999” and that a copy was later issued to him, it could not be safely contended that the claimant’s evidence is at variance with his pleadings; more so when ex-facie the said Exhibit C is the Congress “Conditions of Services 1999”. Drawing inference from the above, counsel submitted that he could not fathom how the issue of speculation would arise with respect to the claimant’s conditions of service when the claimant has pleaded his letter of appointment – Exhibit A which stated that the 1st defendant’s conditions of service would govern the claimant’s appointment. Counsel said the claimant had tendered Exhibit C – the 1st defendants’ conditions of service which was given to the claimant on assumption of office in 2009 unchallenged; and that the reference in bracket “as amended” in relation to the said Exhibit C was to draw attention to the fact that Exhibit C was issued to the claimant in its revised form. Counsel argued that before the said Exhibit C was tendered in Court, the claimant identified it as the one he referred to in his pleadings as governing his conditions of service and the Court received it on that basis. Counsel submitted that arising from the foregoing; he could not fathom how the issue of speculation came into being. Counsel submitted that since the counsel to the defendants failed to cross-examine or lead contrary evidence in respect of this issue, the presumption of law applies that they accepted the truth of what is contained in Exhibit C and that the counsel to the claimant cannot seek to now challenge this piece of incontrovertible evidence by way of address. On this, counsel relied on AMADI V. NWOSU [1992] 5 NWLR [PT. 241] P.273 AT 284, PARAS. G – H. Counsel to the claimant further submitted that the case of the claimant is in addition to the fact that Exhibit C satisfied the second precondition in ZIIDEEH V. R.S.C.S.C. supra. It is also the case of the claimant that the 1st defendant has a constitution which also has bearing on the appointment of the claimant and that the claimant pleaded this in paragraph 7 of his Statement of Facts and tendered same in evidence as Exhibit C1. He further submitted that Exhibit C1 was never challenged nor controverted; and Exhibits C and C1 together satisfied the second condition spelt out in ZIIDEEH supra. Counsel submitted that the defendants breached Exhibits C and C1 in two ways via [1], the summary manner of termination of his appointment without giving the claimant an opportunity of being heard, and [2] and the fact that the termination was without notice as required by Exhibit C. The counsel relied on the provisions of Clause 13:7 of Chapter III of Exhibit C, which stipulates that before the employment of a confirmed staff could be terminated, he must be given the opportunity to make representation and such representation must be considered by the disciplinary body; clause 13:8 of Exhibit C lists out the offences which can ground termination of appointment; and Article 7 Clause 2[ix] of Exhibit C1 stipulates how and when the National Executive Council of the 1st defendant shall have the power to terminate an appointment. Counsel submitted that bearing in mind the above, the issue of whether the above provisions of Exhibits C and C1 are relevant to the appointment of the claimant is an issue that must be resolved before the Court can move further. The counsel to the claimant submitted that the claimant has proved what is required of him by sections 131 – 133 of the Evidence Act, 2011 and that the burden thus shifted to the other side to disprove same. Counsel submitted that based on this, the next thing is for the Court to determine whether the reason for the determination of the claimant’s appointment was punitive, or due to re-organization by congress as claimed by the defendants. Counsel further submitted on behalf of the claimant that through Exhibits D1, J and E1 claimant proved the assertion that the termination of his appointment was for punitive reason contrary to what is stated by the 2nd defendant. Counsel submitted also that these pieces of evidence were neither disputed in the defendants’ pleading nor controverted in their evidence or under cross-examination. Counsel submitted that the effect of this is that the defendants admitted the contents of the exhibits in question. Counsel cited AMADI V. NWOSU SUPRA; BROADLINE ENT. LTD V. MONETARY MARITIME CORP. [1995] 9 NWLR [PT. 417] P.1 AT 27; and F.M.C.T. V. EZE [2006] 2 NWLR [PT.964] 221 AT 245; to buttress his point. Counsel pointed out that when the contents of Exhibit J together with that of Exhibit D1 are carefully listened to, it would be discovered that, contrary to what the defendants claimed to be the reason for his dismissal that, the appointment of the claimant was actually determined for some alleged acts which are detrimental to the image of the 1st defendant. Counsel submitted that at page 10 of Exhibit D1 as culled from Exhibit J the 2nd defendant summarized the deliberations of CWC on the eve of termination of the claimant’s appointment; and that this showed that the claimant’s appointment was terminated as a result of his relationship with the estranged General Secretary of the 1st defendant. Counsel submitted that the phrase “the officer” who is to vacate his office along with Comrade John Odah [the estranged General Secretary] which appeared at the said page 10 referred to him if one considered page 6 where he was referred to as “the officer who is an employee of congress” and that both he and one Comrade Esther Ogunfowora who was referred to as “not an employee” of the 1st defendant were both accused in Exhibits D1 and J openly of conducts inimical to the interest of the 1st defendant arising from their alleged attendance of international Conference without approval. Counsel argued that going by the relevant contents of Exhibits D1, J and E1 reproduced above, it is abundantly clear that the reason for the termination of the claimant’s appointment was punitive and not due to any re-organization being claimed by the defendants. Counsel submitted that consequently, the claimant has proved the burden required of him to establish the real reason for terminating his appointment; and that therefore the burden of disproving this is shifted to the defendants who asserted the contrary in Exhibit C2. Counsel argued that the defendants having failed to do this, it follows that the reason given in Exhibit C2 is not plausible. Counsel argued that once the Court agrees that Exhibit C2 is not plausible, it follows that before the defendants could find him guilty of the real reason why his appointment was terminated, he ought to have been given an opportunity to defend himself as mandated by Clause 13:7[ii] of Chapter XIII of Exhibit C and Article 7, Clause 2[ix] of Exhibit C1. Counsel argued further that since these provisions were violated, it follows that the terms of employment of the claimant has been violated. Concluding his submission on this point, counsel submitted that the Supreme Court has held in ZIIDEEH V. R.S.C.S.C. supra, that a termination of appointment not in consonance with the terms of employment is wrongful in law. The Counsel to the claimant also argued that since the 3 months salaries in lieu of notice stipulated in Clause 13:7[iii] of Chapter XIII of Exhibit C was not paid at a coterminous date with the determination of the claimant’s appointment but was paid on 14th August, 2011; whereas the claimant’s appointment was terminated on the 24th May, 2011, it follows that the defendants have contravened the law relating to payment in lieu of notice and as such the claimant is entitled to damages for the breach. For this point counsel relied on N.N.P.C. V. IDONIBOYEOBU [1996] 1 NWLR [PT.427] 655 AT 673, PARAS. C – D; CHUKWUMAH V. SHELL PETROLEUM [1993] 4 NWLR [PT. 289] 512 AT 536 – 537 PARAS. G – B, 562 PARAS. C – F, 571 PARAS. B – E; LAR V. STIRLING ASTALDI [NIG.] LTD [1977] 11 – 12 SC 53 AT 63. Counsel therefore opined that the claimant did the right thing by returning the belated 3 months salaries in lieu of notice to the 1stdefendant; and thus rounded up on Issue No. 2. The claimant’s counsel commenced arguments on Issue No. 3 as distilled by arguing that once the Court comes to the conclusion that the belated payment of the 3 months salaries in lieu of notice was wrongful it ought to declare the act [that is the termination of appointment] as null and void and that once the act is declared null and void it follows that the claimant would be paid his salaries and entitlements from May 2011 up to the time judgment is entered in the case as the assumption is that the termination was never carried out. Counsel submitted that though the ordinary position of law is that a court cannot foist a willing staff on an unwilling employer but that however there are exceptions to this rule wherein a court will foist a staff on an unwilling employer and that one of such instances is in relation to wrongful termination of the appointment of a union staff. Counsel argued that an order of payment of salaries and entitlements up to date in such circumstances are only consequential and that the Court is urged to grant same here. Counsel argued further that the claimant should be granted general, aggravated or exemplary damages because that is now the global trend in employment matters whereby courts grant these damages for wrongful termination of appointment to cater for injured or ruffled feelings or for difficulty in finding another job or because of the manner of termination of an appointment. Counsel relied on ADDIS V. GRAMOPHONE CO. [1909] AC 488 and MALIK V. BANK OF CREDIT AND COMMERCE [BBC] INTERNATIONAL SA [IN LIQUIDATION] [1993] 3 ALL ER 1. Counsel therefore urged the Court to grant appropriate damages as the defendants have exposed the claimant to untold trauma and hardship and loss of self esteem which also affect the claimant’s family as a result of the wrongful act of the defendants; which the claimant pleaded in paragraph 19 of his Statement of Facts. Counsel also cited G.K.F.I. [NIC.] LTD V. NITEL PLC [2009] 15 NWLR [PT. 1164] 344 AT 377 PARAS. C – F, on entitlement of the claimant to aggravated damages. Counsel argued that the fact that it is the Labour Union, which has as its primary mandate, the protection of workers and their security of tenure as enshrined in Article 3 of its constitution [that is Exhibit C1], that resorted to mindless treatment of its workers is sufficiently outrageous enough. And counsel argued that consequently the claimant is entitled to the sum of N 5,000,000 which he claimed is a conservative assessment of the recompense the claimant is entitled to for the injury suffered in the hands of the defendants. Counsel therefore urged the Court to grant same as the general and aggravated damages. On special damages counsel to the claimant submitted that because the claimant paid the sum of N 5,000,000.00 to engage the services of an S.A.N to prosecute this matter, the receipt of payment of which sum is tendered as Exhibit K, the claimant is entitled to its recovery as special damages. Counsel submitted that were it not for the wrongful termination of the claimant’s appointment, the claimant would not have incurred the expense of hiring a counsel. Counsel cited U.T.B. [NIG.] LTD V. OZOEMENA [2007] 3 NWLR [PT. 1022] 448 AT 492 PARAS. C – D; G.K.F.I [NIG.] LTD V. NITEL PLC 15 NWLR [PT. 1164] 344 AT 372 – 373 PARAS. H – D; and PRIME MERCHANT BANK LTD V. MAN-MOUNTAIN CO. [2006] 6 NWLR [PT. 661] 524 AT 530 PARAS. B – E to buttress his point. Thus, counsel rounded up his arguments on Issue No. 3, which is the last issue formulated in his address. The counsel to the claimant finally urged the Court to hold that the defendants are in breach of their terms of employment with the claimant and that the termination of appointment of the claimant was wrongful in law. Counsel consequently urged the Court to award substantial damages in favour of the claimant in addition to ordering the payment of all his salaries and entitlements that are yet unpaid. To the above address which I just summarized, the defendants via their counsel filed a reply on points of law. This Reply on Points of Law is dated the 30th day of August, 2012 and filed on the 8th day of October, 2012. To it we now turn. Meanwhile, at this juncture, I have to sound a caveat that I shall only summarize what I consider to be replies on points of law and will therefore not bother to treat what I consider to be re-argument of defendants’ written address. I must say reply on points of law, as the name implies, must be limited to new issues of law as distinct from issues of fact, which are raised for the first time by the claimant’s counsel. These are the issues of law to which the defendants’ counsel is permitted in law to reply to. Thus, counsel is not to see it as another opportunity to re-argue his case. Be that as it may, on Issue No.1, counsel to the defendants replied on point of law that contrary to the assertion of the claimant’s counsel, Exhibits J and D1 which he asserted to be admissible that, they are inadmissible hearsay pieces of evidence; and that the mere fact that they were not objected to initially would not bar the defendants from objecting even at an appellate court. Counsel cited sections 37, 84[1], [2], [4], 87 and 258 [1] of the Evidence Act, 2011; DUROSARO V. AYORINDE [2005] 20 WRN 181 AT 201 – 202; and FASINA V. OGUNKAYODE [2005] WRN 172 AT 191 – 192 to ground his argument. Counsel argued that based on sections 83 [4] 84 and 88 of the Evidence Act and ECODRILL NIGERIA LTD V. OFOTOKUN [2005] 16 WRN 83 AT 112 LINES 20 – 25, the pieces of evidence in question as contained in paragraphs 10, 11, 12, of the Witness Statement on Oath should be expunged as hearsay. Counsel therefore submitted that the authorities cited by counsel to the claimant on this point of law are meant to becloud the mind of the Court. On Issue No. 2, the defendants’ counsel replied to the arguments of the claimant’s counsel that he failed in his duty to cross-examine on tendering the wrong condition of service that, cross-examination is not for the purpose of building the evidence needed by the party to be cross-examined. The implication being that no cross-examination was necessary in the instance. Counsel to the defendants went further to argue that contrary to the assertion of the claimant that the constitution of the 1st defendant forms part of his conditions of service that, there was no place in Exhibit A where it was indicated that the constitution of the 1st defendant shall form part of the conditions of service of the claimant; and that the Court should disregard the argument premised upon it. Counsel went further to contend on the issue being made out of the fact that he did not challenge Exhibits C, C1, D1, E1, and J that, the law is that even evidence contained in affidavit needs to be cogent before a court can hold that it proves a case even though there was no contrary evidence to challenge same; and that a plaintiff cannot build his case on the weakness of the defendants’ case. In this respect counsel cited UNION BANK OF NIGERIA PLC V. MR. SAMUEL CHINYERE supra; and OGOEJEOFO V. OGOEJEOFON [2006] 22 WRN 183 AT 201 – 202. Counsel therefore called on the Court to expunge Exhibits C, C1, D1, E1, and J. Counsel submitted that once the exhibits in question are expunged, the case would be devoid of evidence; and as such the Court should dismiss it. Counsel replied on Issue No.3 that contrary to the submission of claimant’s counsel on the damages payable on wrongful termination of appointment that, the damages payable is the length of notice which was supposed to be given; and counsel relied on UNION BANK OF NIGERIA PLC V. MR. SAMUEL CHINYERE supra. Counsel also submitted that it is not the law that a defendant should pay the legal fees of plaintiff once the court comes to the conclusion that the act of the defendant was wrongful. That is all that I consider to be replies on points of law. Having done with the replies on points of law, I must now proceed to resolve the issues at stake in this case. And before doing this, let me say I have given a most careful consideration to all documents filed in this case. I have also carefully perused evidence led on behalf of parties, the cross-examination and the final written addresses filed by the counsel to the two sides and cited authorities. I must say my close scrutiny of the issues distilled by the two sides revealed to me that the three issues distilled by the claimant’s counsel capture the issues to be resolved in this case than those formulated by the defendants’ counsel. I therefore adopt these issues for the resolution of this case. The three issues, which are slightly altered, are as follows: 1. Whether this court can inquire into the reason(s) given by the 1st defendant for the termination of the Claimant’s appointment? 2. Whether on the state of evidence, the summary termination of the Claimant’s appointment was not wrong in law? 3. Whether the Claimant is not entitled to special, general and aggravated damages in the circumstance of this matter in addition to his unpaid salaries and entitlements? Issue No. 1 Whether this court can inquire into the reason(s) given by the 1st defendant for the termination of the Claimant’s appointment? Counsel to the defendants has argued that the relationship between the claimant and the 1st defendant being that of servant/master relationship which the master can terminate at any time with or without reason, the court cannot inquire into the plausibility of reason for the termination of such appointment even if a reason was offered. Counsel said all that the master needed to comply with was the giving of the proper notice or payment in lieu thereof. Counsel cited FAKUADE V. O.A.U.T.H. supra and BAMGBOYE V. UNILORIN supra. I have checked the authorities cited. I have found FAKUADE’S case particularly relevant to the argument of counsel. Supreme Court held in the case thus: But generally speaking a master can terminate the contract of employment with his servant at any time and for any reason or for no reason at all, provided the terms of contract of service between them are complied with. The motive which led an employer to lawfully terminate his servant’s employment is not normally a relevant factor and the court will have no business with such motive but only to give effect to the contract of service between the parties. [Bold types supplied for emphasis] In contradistinction to the above, counsel to the claimant who argued in the opposite cited ANGEL SPINNING case supra and N.E.P.A. V. EBOIGBE supra. at p. 162 paras. D – G, where the Court of Appeal held thus: However, where an employer states a reason for the termination, such reason must be plausible to justify such termination of appointment of the employee. This same view has been held by the Court of Appeal in AGEL SPINNING case – see p. 554 paras. A of the report. Being that the two authorities cited by the claimant’s counsel in opposition to the defendants’ counsel emanated from the Court of Appeal, one cannot choose the contrary authorities of the Court of Appeal against that of the Supreme Court cited by the defendants’ counsel. To resolve the controversy, one needs to see what the firm holding of the Supreme Court is with regard to the issue. In SHELL PETROLEUM DEV. CO. LTD V. CHIEF VICTOR SUNDAY OLAREWAJU [2008] LPELR – 3046 [SC], the Supreme Court has this to say on the duty of an employer where he has elected to state a reason for determining the appointment of an employee: The guiding principle which has been articulated and applied in many cases including Olatunbosun V. N.I.S.E.R. Council [1988] 1 NSCC 1025; [1988] 3 NWLR [Pt. 80] 25, is that an employer is not bound to give reasons for terminating the appointment of his employee. But where, as in this case, he gives a reason or cause for terminating the appointment, the law imposes on him a duty to establish the reason to the satisfaction of the court. [See p. 19 paras E – G] Although, it would appear on casual reading or construction of the excerpt of the Supreme Court quoted in FAKUADE’S case that the Supreme Court held that the reason for the termination of an employment cannot be inquired into under all circumstances, but a careful perusal would show that this is not the case. The statement in issue was hedged by words of limitation, as indicated in the bold types in the said quoted excerpt, and they showed without equivocation that it was not meant to be an absolute statement of law and that some exceptions could be recognized. That this is the correct construction of the passage has been laid to rest when in later decisions of the Supreme Court, [as cited above] it was held that where an employer elects to give reason for the termination of appointment of an employee, even though he is not under obligation to do so, the reason must be cogent or plausible. Having come to the above conclusion, I therefore hold that, though an employer is not obliged to offer a reason for terminating the appointment of an employee, but once he does, he is stuck with the reason and the reason is subject to the test of plausibility. Therefore, the Court can competently inquire into the reason why an employee’s appointment was determined once issues are joined by parties on it. Having held thus, I now proceed to the plausibility or truthfulness of the reason given by the employer [that is the defendants in this case] for determining the appointment of the claimant, which the claimant in this case, has contested as being a mere façade for the true reason. In doing this, the Court is bound to place reliance on the evidence adduced by the parties in proof of their respective positions; and before the Court can competently take cognizance of these pieces of evidence, it must per force first resolve issues relating to their admissibility. This I proceed to do at this juncture. The claimant has pleaded and tendered the following pieces of evidence, without objection from the other side, to prove that the reason given by the defendants for terminating his employment was a mere facade to cover the real reason; which he claimed is punitive: 1. The letter of termination of his appointment by the defendants dated the 24th May, 2011 which admitted as Exhibits C2 – C7; 2. A bundle of documents called ‘transcription of proceedings of Meeting of the Central Working Committee of the NLC held on May 23, 2011’ admitted as Exhibit D1 – D23; 3. Documents titled ‘Sectional Report Presented to State Executive Council held on 9th June, 2011’ at the NLC Secretariat, Apo admitted as Exhibit E1 – E7; and 4. Internal memo titled ‘Re: Termination of Appointment’ dated June 27, 2011 admitted as Exhibit F1 – F2; However, the attempt to tender an audio record of proceedings as exhibit, which the claimant also relied on as part of evidence to prove non-plausibility of the reason for terminating his appointment, was sternly opposed by the order side. It was admitted tentatively as Exhibit J. I will like to take the issue of documents tendered without opposition first. As indicated earlier on, these documents were tendered without opposition from the counsel to the other side: that is the defendants’ counsel. The claimant’s counsel has also asserted that these documents were pleaded without issues joined on them by the defendants. Counsel to the claimant also asserted that notices were served on the defendants through the claimant’s pleadings to produce the original of these documents failing which the photocopies were tendered. All these assertions have not been countered by the defendants’ counsel either by adducing contrary evidence or by way of cross-examination; and the law is that an assertion of counsel not countered by the opposition is deemed admitted – see P.W. NIG. LTD V. GOMBE (2009) FWLR (PT. 74) 291 AT 295 RATIO 5, where the Court of Appeal held that: A contention of counsel which is not countered by the opposing counsel is deemed conceded by him. Also, it is the law that averments in pleadings not countered by defence – that is on which issues are not joined - are deemed admitted by the defence – see AG ANAMBRA STATE V. C.N. ONUSELOGU ENTERPRISES LTD [1987] LPELR – 614 [SC] PP. 23 -24, PARAS. E – B. See also PASCUTTO V. ADECENTRO NIGERIA LTD [1997] LPELR – 2904 [SC] PP. 32 – 33, PARAS. E – A; where the Supreme Court held that: In any civil proceedings where a party’s evidence is not challenged by cross-examination, that evidence, unless there are compelling legal or procedural reasons for rejection, must be admitted as truth. …Whereas in criminal matters, defence may refuse to cross-examine but may come with devastating evidence to discredit the prosecution’s case. It is different in civil matters because of the procedural differences. The counsel to defendants in spite of the above belatedly challenged the above pieces of evidence in his replies on points of law insisting that because the pieces of evidence are hearsay, they are inadmissible in any event and that he can challenge them at any stage. The defendants’ counsel also challenged these pieces of evidence on the ground that they are not cogent and that evidence has to be cogent before the Court can take cognizance of it; even if unchallenged. Based on the arguments of counsel above in juxtaposition with the case of PASCUTTO supra, it would appear that the mere fact that a piece of evidence was not challenged would not make it admissible; hearsay evidence being in the nature of evidence that is conditionally inadmissible. What then is hearsay evidence? Section 37 of the Evidence Act, 2011 provides the answer. It defines hearsay evidence to include either oral or documentary or recorded evidence as hearsay once it is being giving by somebody other than the maker of such statement or document or record. As it is, hearsay evidence is inadmissible by section 38 of the Evidence Act, 2011. But there are some exceptions recognized by the exception clauses in sections 37 and 38 which seem to say that notwithstanding that a document may be hearsay, it shall be admissible once it can be shown that any of the provisions of the Evidence Act, 2011 allows it. Then this holding knocks the sail out of the arguments of the defendants’ counsel which seems to say hearsay evidence is not admissible at any event. Then, are the pieces of evidence in issues admissible under any provision of the Evidence Act. This investigation takes us to section 91 of the Evidence Act, 2011. Section 91 of the Evidence Act, 2011 provides thus: Secondary evidence of the contents of the documents referred to in section 89[a] shall not be given unless the party proposing to give secondary evidence has previously given to the party in whose possession or power the document is, or to a legal practitioner employed by such party, such notice to produce it as is prescribed by law; and if no notice to produce it is prescribed by law then such notice as the court considers reasonable in the circumstances of the case:… Section 89[a] of the evidence Act which is a precondition to section 91lists out the types of situations where secondary evidence will be admissible: Secondary evidence may be given of the existence, condition or contents of a document when- (a) the original is shown or appears to be in the possession or power – (i) of the person against whom the document is sought to be proved; or (ii) of any person legally bound to produce it, and when after the notice mentioned in section 91 such person does not produce it;… The claimant’s counsel has pleaded these documents at paragraphs 10, 11, 12, & 13 of the Statement of Facts. Notice to produce these same documents were served on the defendants via paragraph 10 of the Statement of Facts. The Supreme Court has held in ATTORNEY-GENERAL OF ANAMBRA STATE V. C.N. ONUSELOGU ENTERPRISE LTD [1987] LPELR – 614 [SC] 1 AT 23 – 24 that: On the issue of notice to produce I have to say that a party on whom notice to produce is served is not under any obligation to produce the document. The service of the notice to produce only entitles the party serving the notice to adduce secondary evidence of the document in question by virtue of section 98 of the Evidence Act.[See also AINOKO V. YUNUSA & ORS. (2008) LPELR – 3663 (SC) 1 AT PP. 25 – 26 PARAS. G – D] But the defendants via paragraph 1 of their Statement of Defence claimed they denied paragraph 10, 11, 12 amongst others of the Statement of Facts of the claimant. As it is, the averments and the specific allegations contained in the said paragraphs were not specifically denied in the general denial. For example what is the effect of such general denial on notice to produce? Is the general denial saying it denies seeing the notice to produce or is it saying those documents are not in existence or that there was no meeting? The law is that where specific allegations are made, these allegations must be specifically denied to amount to proper traverse of the paragraphs containing them. The purpose of pleading is to let parties know precisely what case they are to meet in court. Thus, the Supreme Court held in ATTORNEY-GENERAL OF ANAMBRA STATE V. C.N. ONUSELOGU ENTERPRISES LTD [1987] LPELR – 614 [SC] 1 AT PP. 23 – 24, PARAS. E – B that: The defendant who wishes to deny an allegation must do so clearly and unambiguously so that the Court and his adversary will with certainty know he is not admitting. Therefore traverse must be specific not general, it must clearly allude to the fact pleaded and not be evasive and ambiguous. In the instant case, allegations were made that there was a specific meeting and that a specific issue was discussed wherein specific decision was taken and that these decisions were transcribed and also audio-recorded and that a report was based on it and presented to the Central Working Committee. Notice to produce the report, transcription and the audio record was given. In the general denial which aspect of these specifics was being denied? Based on the above authority, I hold that there was no denial of the averments in issue. More so, these allegations were repeated in the Witness Statement on Oath deposed to by the claimant and the notice to produce was also repeated. This was not challenged in the Witness Statement on oath deposed to by the defendants’ witness. And the witness statement on oath was later adopted in court without opposition. The defendants’ counsel only opposed the audio recording [that is Exhibit J] at trial. What is more, the defendants’ counsel even stated specifically that “Exhibit D1 – D23 has been tendered by the witness and was not opposed” during his opposition to Exhibit J. The defendants’ counsel is only now opposing these pieces of evidence at the point of reply on points of law simply because it was not the maker that was tendering them forgetting that the claimant who has tendered them, even though not the maker, had issued a notice on the defendants who are the makers and who have the custody, to produce, and they failed to do so. And it has been shown that these documents are in the possession of the party against whom they are sought to be tendered. If the defendants had produced the documents, their counsel would not oppose them as hearsay. To cure this sort of situation, the law in its wisdom has provided that once the maker or the person in whose custody a document is and on whom a notice to produce has been issued and he refused to heed the notice, the party issuing the notice has the right to, not only tender the secondary copy but can even adduce oral evidence to prove the contents. This provision I hold is an exception to the inadmissibility of hearsay evidence. I also hold that these pieces of evidence are not therefore inadmissible at all events: they are admissible on conditions. And once they are tendered without opposition the opposing side is deemed to have waived his right to complain. I therefore hold that where there is even no notice to produce, once these pieces of evidence are adduced without protest as in this case, the defendants cannot belatedly wake up to challenge them after their admission: it will be too late in the day – see OGHOYONE V. OGHOYONE [2010] LPELR – 4689 [CA]1 AT PP. 26 – 27 PARAS. G – A where the Court of Appeal made the following relevant pronouncement: Furthermore since Exhibit P16 – 23 [Statement of Accounts] are not inadmissible, they are admissible subject to certain conditions earlier explained, and since there [sic] were admitted without any objection to their admissibility, any further objection is deemed waived and this court cannot open the admissibility of the said Exhibits. [See also OGUMA V. IBWA [1988] LPELR – 2318 [SC] 1 AT 21 – 22 PARAS. G – D; GUINESS NIG. PLC V. EMMANUEL NWOKE [2000] LPELR – 6845 [CA] 1 AT 13, PARAS. B- D]. Based on my reasoning above and the authorities of P.W. NIG. LTD V. GOMBE (2009) FWLR (PT. 74) 291 AT 295 RATIO 5; ANAMBRA STATE V. C.N. ONUSELOGU ENTERPRISES LTD [1987] LPELR – 614 [SC] PP. 23 -24, PARAS. E – B; PASCUTTO V. ADECENTRO NIGERIA LTD [1997] LPELR – 2904 [SC] PP. 32 – 33, PARAS. E – A; OGHOYONE V. OGHOYONE [2010] LPELR – 4689 [CA]1 AT PP. 26 – 27 PARAS. G – A; OGUMA V. IBWA [1988] LPELR – 2318 [SC] 1 AT 21 – 22 PARAS. G – D; GUINESS NIG. PLC V. EMMANUEL NWOKE [2000] LPELR – 6845 [CA] 1 AT 13, PARAS. B- D; and section 12 [2] [b] of the National Industrial Court Act, 2006 [NICA] earlier cited above except NICA, I hold that Exhibits C2 – C7, D1 – D23, E1 – E7, and FI – F2 were properly tendered and that the Court can competently take cognizance of them. I now come to Exhibit J which, all along, had been opposed by the defendants’ counsel. I hold the view that the claimant having issued a notice to produce on the defendants, which they fail to heed; the claimant has the right to tender the one he has. The defendants’ counsel has merely claimed this document is not admissible because it is hearsay and that the proper foundation for its admissibility was not laid. He has not said the audio record is not in existence. Admissibility is admittedly different from probative value to be placed on a piece of evidence after admitting it. It now remains to see if these admitted documents have probative value: whether they prove the assertion of the claimant. At paragraph 10 of the Statement of Facts filed by the claimant, I found the following: …The claimant also pleads and relies on the National Executive Council [NEC] Report presented to the 1st Defendant’s FCT Council on 9th June, where the reason for the termination of the Plaintiff’s appointment was reported… I found at paragraph 8 of the said document [Exhibit E1 – E7], the title “NEC REPORT” and under paragraph 12 [b] titled “Termination of Appointments”; I found the following stated: It was also reported that appointment of the General Secretary, Com. John Odah was terminated on the basis of “services no longer required”. The action according to the report was due to his anti union activities. Those whose appointments were also determined were Com. Esther O. and Com. Onah Idu for attending International Conference on behalf of Congress without approval. The document referred to above was also mentioned in the Witness Statement on Oath and tendered without objection. I have checked the other Exhibit [Exhibit D1 – D23] page 4 – 10 marked D4 – D10 are particularly relevant. I saw that the name of Comrade Onah was mentioned therein and it was reported that he travelled to attend International Conference without knowledge of his office. At page D10, it was stated “…and in the same vein, the officer, because the other two officers, one is not a staff of congress and therefore that case is simple issue that terminated with the …with the NAC, the officer, we also felt that we…in this circumstance, the best thing is to ask him to vacate his office and this was the decision that was taken by the National Administrative Council yesterday and also…we resolve that we are forwarding it here for the…in the interest of this movement…”. Though, it is clear that the claimant was accused of travelling abroad without approval, it is not clear that the officer referred to at page D10 is this same officer. Further evidence is needed to link this to the earlier pages. This, the witness was supposed to do at trial. He did not. His counsel sought to do this through his address. This, I hold, he has no competence to do. The same thing is applicable to Exhibit J. Nevertheless, Exhibit E1 – E7 shows without equivocation the reason for the termination of the claimant’s appointment. This reason not being the same thing with the reason adduced in the termination letter [ExhibitC2]; it follows that the reason is false; and I so hold. And it follows that Exhibit C2 [letter of termination of appointment] is invalid; and also I so hold. Issue No.2 Whether on the state of evidence, the summary termination of the Claimant’s appointment was not wrong in law? Now, in this place our duty is to see if the appointment of the claimant was rightly terminated in accordance with law and the conditions of service of the claimant. It is a common ground between the parties to the action that the claimant is entitled to three months notice or payment in lieu thereof. The bone of contention is when exactly is, if the option of payment in lieu of notice is chosen, the payment supposed to be made. The only witness called by the defendants [DW1] stated under cross-examination that she paid into the account of the claimant after the termination of his appointment a cheque on the 14th July, 2011.She also said she could not remember the interval between when the cheque was paid into the claimant’s account and the time claimant’s employment was terminated. She also said she did not know the date the claimant’s employment was terminated. The above pieces of evidence showed at least that the payment in lieu of notice was made on the 14th July, 2011. This evidence is strengthened by paragraphs 18 and 19 of the claimant’s Statement on Oath which confirm the above. The truthfulness of this was taken beyond disputation by Exhibit DD tendered by Comrade Happiness Okechukwu [defendants’ witness] when she said at paragraph 4 of the exhibit that: I paid the claimant’s entitlements and three months’ salary in lieu of notice of termination of his appointment on the 14th August, 2011 to his salary account with Zenith bank [sic] Plc. When then was the appointment of the claimant determined? Paragraph 3 of the Witness Statement on Oath deposed to by one Com Happiness Okechkwu on the 26th April, 2012 on behalf of the defendants also supply this. It states that: The claimant was an employee of the 1st Defendant until his employment was terminated on the 24th of May 2011 by the 1st Defendant. The above statement has been corroborated by Exhibit C2 titled “Termination of Employment” tendered by the claimant. The termination letter was dated the 24th of May, 2011. What does the law say on payment in lieu of notice? This question is answered by the Supreme Court in CHUKWUMAH V. SHELL PETROLEUM [1993] LPELR – 864 [SC] 1 AT 28, PARAS. D – F thus: In my respectful view, where a contract of service gives a party a right of termination of the contract by either giving a particular length of notice or payment in lieu of the length of notice and the latter is chosen, the party seeking to put an end to the contract must pay to the other party the salary in lieu of notice at the time of termination of the contract. It is not enough that in the letter of termination he offers to pay salary in lieu of notice. It is thus clear beyond dispute that the salary in lieu of notice must be paid contemporaneously with the time the appointment is terminated. It follows that the salaries in lieu of notice, in the instant case, which was paid on the 14th of July, 2011 or 14th August, 2011 whereas the appointment was determined on the 24th May, 2011 did not meet the strict stipulation of the law. The fact remains that whichever of the two dates is chosen, the payment was done late. It does not matter, in my humble opinion, that this money was subsequently paid by the defendants and returned by the claimant. What matters is that it was paid belatedly. That is what the law forbids. It therefore follows that the appointment in issue was wrongfully terminated; and I so hold. There however remains the other side of the basis by which the claimant alleged that his appointment was wrongfully determined. This is on the basis that he was not afforded fair hearing by virtue of non-compliance with the conditions of service of the 1st defendant which he claimed provided that he must be heard before his appointment is determining on the basis of an allegation as the one involved herein, which he claimed was not observed. To prove this, the claimant tendered Exhibits C and A. This aspect of the case has generated serious arguments and counter arguments from the counsel to the two sides. Looking at the whole arguments critically, I think without wasting more time, I agree, with profound respect, with the submission of the learned counsel to the defendants that a party is bound by his pleadings and that evidence at variance with pleadings goes to no issue. The claimant stated in paragraphs 6 of his Statement of Facts that he was pleading 1st Defendant’s Conditions of Service, 1999 [as amended]. This statement was repeated in the Witness Statement on Oath deposed to by the claimant. I have examined Exhibit C and I must, with respect, say I cannot find where the phrase “as amended” was added to it. The explanation which the claimant’s counsel sought to make cannot, in my humble opinion, avail the issue. This is because with the phrase, it means there is an amended version of Exhibit C. So, one would not know which one is being tendered now: whether the amended or the original version. To avoid any ambiguity and controversy, one should do well to limit oneself to how a document describes itself. It is trite that a document speaks for itself. This document describes itself simply as “Nigeria Labour Congress [NLC]: Conditions of Services [1999]”, period. I cannot find where the phrase “as amended” came in. I therefore hold that Exhibit C has no probative value since it is not the one pleaded. It does not matter that the document in issue was tendered without objection: evidence must be cogent to have probative value. But the claimant also makes a case out of the Constitution of the NLC claiming that it also governs his employment. This assertion has been seriously challenged by the counsel to the defendants on the grounds that the constitution is not signed and therefore not binding, and that Exhibit A [letter of appointment of the claimant] did not indicate that the employment of the claimant shall be governed by the constitution, therefore the Court cannot take cognizance of it. To these arguments, the claimant’s counsel contended that because this document was tendered without objection and pleaded without issues joined on it, it follows that it is validly supports the claimant’s case. The question to answer here is: what is the relationship of the NLC’s Constitution and the Nigeria Labour Congress [NLC]: Conditions of Services [1999]? The Black’s Law Dictionary [7th Edition] at page 306 defines a constitution in the following words: A constitution is the fundamental and organic law of a nation or state establishing the conception, character, and organization of its government, as well as prescribing the extent of its sovereign power and manner of its exercise. Drawing inference from the above definition, the constitution of an organization as in the instant case; is the fundamental and organic law of that organization establishing the conception, character, and organization of its government as well as prescribing the extent of its power and manner of its exercise. It follows from this that the conditions of service of the NLC which govern the appointment of the claimant are subject to the constitution of the NLC. Article 7, Clause 2 [ix] of the Constitution, which the claimant relied on provides that: The National Executive Council shall have the power to: i. … ix. Suspend, terminate or dismiss any appointed or elected officer of the Congress on the recommendation of the Central Working Committee or at its own instance, for conduct which is inimical to the interest of the Congress after a fair trial. It follows that any relevant provisions of the NLC’s Constitution which have bearing on the condition of service of the claimant are sacrosanct. The Claimant has alleged that his appointment was terminated on an allegation that he travelled abroad to attend conference on behalf of the Congress without approval – see page 8 of Exhibit E1 – E7, this matter was reported to the NEC of NLC in apparent compliance with the provisions of Article 7, Clause 2 [ix] quoted above. It follows that the claimant must be given fair hearing as prescribed under the said clause as a precondition for the determination of his appointment for conduct considered inimical to the interest of the Congress. It follows that the claimant whose appointment was summarily determined without being called upon to make a representation, on conduct considered inimical to the interest of the organization, could not have been said to have had fair hearing; and I so hold. Fair hearing connotes, amongst others, that when a person is accused of any wrong doing, he must be afforded an opportunity to defend himself. As to the contention that the Constitution has to be signed to become valid; it is my humble opinion that it is not a mandatory requirement that a constitution must be signed before it becomes binding on those subject to it: this is not withstanding the anomalous example of the Nigerian extant Constitution; which is signed. What in my humble opinion it requires is ratification or affirmation. This was contained in the preamble to the US Constitution which starts with “We the People of the United States…”. For this reason, I have examined a copy of the Constitution of the United States of America contained at the back of Black’s Law Dictionary supra and I found that it was not signed. This purpose was achieved in the Constitution of the NLC by its Article 1. By the very nature of a constitution, it is axiomatic that it might not be practicable to sign it. A constitution not being a form of agreement between two or few people but stipulation of rules to govern a multitude amongst themselves and in relation to others. It is therefore not practicable that such constitution be taken to each and every member of the multitude to sign it. In any case, this Constitution was pleaded and tendered in evidence by the claimant without opposition. The implication being that the defendants agreed it was their Constitution. Since it is not being contested that the Constitution is not theirs, it becomes academic to now contend that it would not be binding because it was not signed. They have agreed that it is their Constitution. It amounts to blowing hot and cold at the same time to turn round to say it is not binding. In sum total, I hold that Exhibit C1 [the Constitution of the NLC] has bearing on the appointment of the claimant; and it therefore also govern its conditions of service. And having violated it in terminating the claimant’s appointment, the termination was wrongful. It follows that the letter of termination issued to the claimant is invalid; and I so hold. Issue No. 3 Whether the Claimant is not entitled to special, general and aggravated damages in the circumstance of this matter in addition to his unpaid salaries and entitlements? Having resolved Issue Nos. 1 and 2 in favour of the claimant, it now remains to inquire into which reliefs the claimant is entitled to. This is what Issue No. 3 is all about. Flowing from the holding that the claimant’s appointment was wrongfully terminated on the bases that the reason given for the termination was found to be false, and that the appointment was not determined in accordance with his conditions of service, the claimant is entitled to damages, his unpaid salaries and entitlements. In SHELL PETROLEUM DEV. CO. LTD V. CHIEF VICTOR SUNDAY OLAREWAJU supra the Supreme Court held at p.31 paras. D – G that: It is trite that in cases of wrongful dismissal such as the present case, the measure of damages is prima facie, the amount the plaintiff would have earned had the employment continued according to the contract of employment, subject to the deduction in respect of amount accruing from any other employment which the plaintiff in minimizing damages either obtained or should reasonably have obtained. Apart from the above holding of the Supreme Court, it also awarded damages in the sum of N3 Million Naira as damages for the unlawful arrest, detention and humiliation of the plaintiff at the instance, instigation and/or prompting of the defendant – see p. 7, para. E of the judgment. This Court held, in Industrial Cartons Ltd v. NUPAPPW (2006) 6 NLLR (Pt. 15) 258, a case of wrongful termination of employment, that one month salary in lieu of notice would not meet the justice of the case. The Court frowned at the peremptory manner by which the Claimant’s appointment was terminated which the Court believed had the effect of suggesting that the Claimant did something wrong. The Court awarded six months salaries as meeting the justice of the case. Here the claimant is entitled to 3 months notice, which is thrice the length of notice in the cited case. What is more, the appointment of the claimant herein was summarily determined in flagrant disregard of the cardinal principles of the conditions of service of the claimant as contained in the Constitution of the 1st defendant. The protection of fair hearing afforded the claimant by the 1st defendant’s Constitution was contemptuously jettisoned thus infringing the claimant’s fundamental right as guaranteed by the 1999 Constitution of the Federal Republic of Nigeria and made part of the conditions of service of the claimant by the 1st defendant’s Constitution. This Court cannot and will not encourage a situation whereby the constitution of this country is treated with contempt: it has a sacred duty to protect and promote its observance. It also will not encourage whereby a labour organization will treat its conditions of service with ignominy: this will be laying bad example for other employers of labour. I also agree with the claimant that his feelings have been affected negatively by the actions of the defendants in this case; more so when his appointment was terminated based on the false reason which has the implication of saying he has no useful skill. That is patently the implication of saying a person is sacked due to reorganization: another name for redundancy. I agree that he is entitled to compensation to assuage this. I also agree that he is entitled to his unpaid salaries and entitlements. The claimant has also asked for the sum of N5 Million as the cost incurred on the services of hiring a counsel for the prosecution of this case. The receipt of the sum from the Chambers of Okunade Olorundare SAN & Co. in the sum of N5 Million has been tendered and admitted in evidence without opposition as Exhibit K. However, the counsel to the defendants has challenged this in his argument that it is not the law that once a court comes to the conclusion that the act of the respondent was wrongful it would order payments of fees paid to counsel. The Court of Appeal in GUINESS NIG. PLC V. EMMANUEL NWOKE [2000] LPELR – 6845 [CA] 1 AT 23 -24, PARAS. A – A; held that public policy forbids, amongst others, the recovery of counsel fees by a successful party from the party that lost in a case. This same principle has been upheld in SPDC NIG. V. OKONEDO [2008] 9 NWLR [PT. 1091] 85 AT 122 – 123, PARAS. H –D, 122 – 123 PARAS. D – C. Following these authorities, I hold that, in the circumstances of this case, the counsel fees of N5 Million paid by the claimant to his counsel is not recoverable from the defendants. Arising from all the above and the reliefs sought by the claimant; and based on sections 14 and 19[d] of the National Industrial Court Act, 2006, I grant the following reliefs: 1. I award the claimant 2 [two] years salaries as general and aggravated damages. 2. I order that the claimant be paid the three months’ salaries in lieu of notice to which he is entitled, which he had returned to the 1st defendant vide Exhibit I. 3. I order that the claimant be paid his unpaid salaries and entitlements due to an employee of the 1st defendant whose appointment was determined. 4. I also award 10% interest on the judgment sums from the date of this judgment until the judgment is fully liquidated pursuant to Order 21, Rule 4 of the National Industrial Court Rules, 2007 and DIAMOND BANK LTD V. PARTNERSHIP INVESTMENT COMPANY LTD [2009] SC LPELR – 939 [SC], P. 31, PARAS. A- C. This is the judgment of the Court. And I make no order as to cost. ……………………………………………. Hon. Justice B.A. Adejumo, OFR President, National Industrial Court of Nigeria